Volume 90 — New York Reports

(Reported below, 15 J. & S. 18Y.) This action was brought to recover damages for the alleged conversion of seven sight drafts drawn upon plaintiffs. The material facts are stated in the opinion. Even if plaintiffs were negligent it cannot avail the defendants. (People v. The Bk. of N. A., 75 N. Y. 547.) Plaintiffs’ instructions were equivalent to express directions, not to take money for the draft.

(Mem. of decision below, 24 Hun, 372.) This action was brought to recover damages for the loss of a quantity of household goods, which the plaintiff alleged she stored with the defendant, and which were lost through his negligence. The plaintiff in April, 1875, stored a large and valuable quantity of household furniture and other property in a building owned by the defendant and known as number 12 Washington place.

The decision of the supreme court is reported ante, p. 76, where the points of counsel are given in full and the facts stated in the opinion delivered by Davis, P. J.

This action was upon a policy of fire insurance issued by defendant to plaintiff for one year from its date—December 9, 1876. The material facts are set forth in the opinion. A warranty will in no case he extended by construction to include any thing not necessarily implied in its terms. (Owen v. Holland Purchase Ins. Co., 56 N. Y. 565; Markes v. Nat. Ins. Co. of N. Y., 24 How. Pr. 565; Rann v. Home Ins. Co., 59 N. Y. 387; Woodruff v. Imp. F. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 3, 1881, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff to restrain the defendants from opening a street across its lands, which street the board of trustees of the village of Whitehall had laid out and were proceeding to open, they claiming the right, under the act (Chap. 62, Laws of 1863), to open it across said lands, without compensation.</p> <p>The court found: “ That the land of the plaintiff which is embraced within said proposed street crossing is five rods in width, is covered by four railroad tracks, two of which are the main tracks of said railroad for the passing of cars, and two of which are extra tracks extending several hundred feet both to the north and south of the proposed street crossing, and are used, in connection with others, for switching cars, making up trains, and for allowing cars to stand upon them until they can be put into trains about to depart.” ,</p> <p>Unless defendants were entitled to lay out a public street or highway across plaintiff’s grounds without compensation, it was entitled to the relief asked. A suit in equity and an injunction was a proper remedy. (A. & N. R. R. Co. v. Brownell, 24 N. Y. 345; Henderson v. N. Y. C. R. R. Co., 78 id. 423, 429-439; Mohawk, etc., v. Artcher, 6 Paige, 83, 88; Allegany, etc., v. Bradford, etc., 21 Hun, 26; Johnson v. City of Rochester, 13 id. 285; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97.) There being no dispute or conflict in the evidence, the conclusion upon it is a question of law for this court. (Pollock v. Pollock, 71 N. Y. 137, 140; Shelden v. Shelden, 51 id. 354, 355.) Without, and independent of, statute there was no right to lay the street across the plaintiff’s track. (Mohawk, etc., v. Artcher, 6 Paige, 83.) Certainly not without compensation. (Old Colony, etc., v. Plymouth, 14 Gray, 155; Crossley v. O'Brien, 24 Ind. 325; Grand Junction, etc., v. Middlesex, 14 Gray, 553.) Where land is used for purposes other than the ordinary purposes of a “ track,” chapter 62 of Laws of 1853, which is in derogation of the • rights of the railway company, which owns and has paid for the track, does not apply. (Albany & N. R. R. Co. v. Brownell, 24 N. Y. 345; B. & A. R. R. Co. v. Greenbush, 52 id. 510; affirming 5 Lans. 461; Milwaukee & St. Paul R. R. v. Fairbault, 23 Minn. 167.) A railroad may acquire such “ additional ” lands as are a “ reasonable necessity in the discharge of its duty to the public,” “ in determining ” which the prospective needs of the "corporation, within a .reasonable time, are to be taken into consideration; this includes all proper uses of land except the mere running of cars and transportation of freight and passengers. (Matter of N. Y., etc., 46 N. Y. 546; Matter of N. Y. C. & H. R. R. R. Co., 77 id. 248; 67 Barb. 426.) The property in question was under the protection of article 1, section 6, of the Constitution and could not be taken for other public use without just compensation. (Railroad v. Brownell, 24 N. Y. 345; Railroad v. Village of Greenbush, 52 id. 510; Seneca Road Co. v. Auburn & R. R. R. Co., 5 Hill, 170; Miller v. N. Y. & E. R. R. Co., 21 Barb. 513; Matter of Kerr, 42 id. 119; Sixth Ave. Co. v. Kerr, 45 id. 138.) The original grantee of the land in question (the Saratoga & Washington Railroad Co.) was empowered by law to take a fee therein. (Laws of 1834, chap. 249; Nicoll v. The N. Y. & E. R. R. Co., 12 N. Y. 121; People v. Health Comm’rs, 5 Denio, 389, 398-400; Yates v. Van De Bogert, 56 N. Y. 526; Page v. Heinburgh, 40 Vt. 81; Plymouth Ry. Co. v. Colwell, 39 Penn. St. 337; Laws of 1850, chap. 140, § 28, subds. 2, 3; Gamble v. Horr, 40 Mich. 561.</p> <p>Ample power was conferred upon defendants by section 17, chapter 76, Laws of 1850, and section 18 of same chapter, as amended by section 8, chapter 471, Laws of 1869, to lay out and open the street in question. (Wilson v. Mayor, etc., of New York, 1 Denio, 595; Mills v. The City of Brooklyn, 32 N. Y. 496.) The term “ track,” specified in chapter 62, Laws of 1853, may include one or more single tracks, including turnouts and switches, and including all tracks (and the grounds connected therewith) that are jointly or collectively used for passing trains, switching off cars, making up trains, and includes all in what may be denominated the general roadway. (B. & A. R. R. Co. v. The Village of Greenbush, 52 N. Y. 510; The A. & N. R. R. Co. v. Brunell, 24 id. 345; The Sixth Ave. R. R. Co. v. Kerr, 45 Barb. 138; R. & S. R. R. Co. v. Davies, 43 N. Y. 143.) Plaintiff stands in no more favorable position because its title is, as it claims, “ a title in fee ” of such as it has actually reduced'to possession. (B. & A. R. R. Co. v. The Village of Greenbush, 5 Lans. 461; affirmed, 52 N. Y. 510; Smith v. N. Y. & Oswego M. R. R. Co., 63 id. 58; Bradley v. B., N. Y. & E. R. R. Co., 34 id. 432; Tracy v. T. & B. R. R. Co., 38 id. 437; 5 Lans. 465, 466; 52 N. Y. 510; 24 id. 345; 42 Barb. 119, 121; 45 id. 138.)</p>

. This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. The material facts are stated in the opinion. To recover substantial damages, some evidence must be given to the jury upon which they may base their finding, where the subject-matter is, from its nature, capable of such proof. The value of one’s time is capable of such proof, and, therefore, its absence is not excused.

These are cross-appeals from a judgment of the General Term of the Supreme Court, in the second judicial department, en tered upon an order made February 15, 1881, which modified, and affirmed as modified, a judgment entered upon a decision of the court on trial at Special Term, and which reversed an order of Special Term, denying a motion to readjust the costs by striking out an extra allowance of $250, and an item of $91, taxed as disbursement for “ surveys, maps,…

<p>Where, after the commencement of an action on contract in a Massachusetts court, and. after defendant had appeared and answered therein, and had suffered default, hut before judgment was rendered defendant was discharged in bankruptcy, held, that the discharge was no defense to an action in this State upon the judgment.</p> <p>Wolf v. Stix (99 U. S. 1), Monroe v. Upton (50 IT. Y. 593), Olark v. Bowling (3 id. 216), distinguished.</p>

<p>Appeal from judgment of the Gfeneral Term of the Supreme Court, in the first judicial department, entered upon an order made at the April term, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the trial court.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Until certificate of engineer in charge of the work had been procured and notice thereof given to defendant, any suit would be premature. (Hyse v. Walafield, 6 M. & W. 451.)</p> <p>Plaintiff could maintain this action upon the previous notice and demand actually given and made, or without previous notice that the engineer in charge had certified to the claim of Sherman & Kiyler. (Niermeyer v. Brooks, 44 Ill. 77; Douglas v. Howland, 24 Wend. 48-53; Genesee College v. Dodge, 26 N. Y. 213; Hyse v. Walafield, 6 M. & W. 451; Heebner v. Townsend, 8 Abb. 234; Johnson v. Ackerson, 40 How. 222; Halleck v. Moss, 22 Cal. 266; Lamphere v. Cowen, 42 Vt. 175; Watson v. Walker, 23 N. H. 471; O'Connor v. Dingley, 26 Cal. 11; Locklin v. Moore, 57 N. Y. 360.) Defendant is estopped from insisting on previous specific notice of Faron’s certificate. (Prentice v. Knick. L. Ins. Co., 77 N. Y. 483; Goodwin v. Mass. Mat. L. Ins. Co., 73 id. 480; Gratton v. Mut. L. Ins. Co., 21 Alb. L. J. 289; Ripley v. McClure, 4 Exch. 345.) If the covenant of Swift requires the certificate of the engineer in charge when Sherman & Kiyler did their work, plaintiff has the right to claim that it has been conclusively decided upon the trial of this case that such a certificate was obtained by him. (Koheler v. Adler, 78 N. Y. 287.)</p>

Appeals from orders of the General Term of the Supreme Court, in the third judicial department, made May 12, 1882, which reversed certain Special Term orders, the nature of which, as well as the material facts, are stated in the opinion. (Reported below, 27 Hun, 195.) The decision of the General Term cannot be reviewed in this court.

<p>The provision of the act of 1880 (§ 4, chap. 59, Laws of 1880) for the relief of the Manhattan Savings Institution, which by its terms discharges the city of Yonkers, upon delivery by it to said institution of duplicate bonds, from liability upon certain negotiable bonds issued by it, " to all persons purchasing the same after due publication of the notice specified in the first section of this act,” is unconstitutional, as the effect thereof is to destroy the negotiable quality of the bonds, and so it impairs the obligation of contracts. (U. S. Const., art. 1,§ 10, sub. 1.)</p> <p>Said provision is also violative of the constitutional prohibition (IT. S. Const, amendment, art. 5; State Const, art. 1, § 6), against depriving a person of property without due process of law.</p> <p>As the exemption from liability given by said provision is a condition and compensation for the issuing by the city of the duplicate bonds required by the act (§ 2); the former provision being invalid, the latter cannot be enforced.</p> <p>As to whether the legislature has power to compel a municipal corporation to issue new bonds in place of bonds lost or stolen, qumre.</p>

The material facts are stated in the opinion. The removal of the relator by the commissioner was not authorized by the statutes. (Laws of 1880, chap. 377, § 7; Laws of 1881, chap. 457, § 2.) The statutes are mandatory and must, in all respects, be strictly complied with by the commissioner in removing a member of the force.

<p>A temporary injunction is unauthorized when it does not appear from the complaint that plaintiff is entitled to the final relief for which the action is brought. (Code of Civil Procedure, § 603.)</p> <p>The granting of the injunction in such case is error of law which may be reviewed in this court on appeal. (Code of Civil Procedure, § 190, sub. 2.)</p> <p>It is not sufficient to authorize the remedy by injunction, that a violation of a naked legal right of property is threatened, there must be some special ground of jurisdiction, and where an injunction is the final relief sought, the facts entitling the plaintiff to it must be averred in the complaint.</p> <p>Plaintiff’s complaint alleged in substance that he was the owner of certain shares of corporate stock, which had been pledged to secure a loan and had been transferred on the books of the corporation to defendant as trustee for the pledgee; that defendant by reason of his control of the shares, had been enabled to a great extent to control the management of the corporation, and had managed the same without regard to its best interests, and so as to subserve the interests of another corporation; that defendant has heretofore voted on said shares at elections held by the stockholders, and claims the right so to do at future elections; that it is greatly against plaintiff’s interest to permit defendant so to vote, and that plaintiff will suffer great and irreparable injury if defendant is permitted to do so. An injunction was asked, restraining defendant from voting on the shares. On appeal from an order granting a temporary injunction restraining defendant from voting pendente life, held, that the complaint did not set forth a cause of action ; and that the granting of the order was error.</p>

Woodward, deceased. The material facts are stated in the opinion. As the entire property held by the relators, and upon which the tax complained of was laid, consisted of bonds of the United States, it was not subject to State taxation. (1 R. S. 388 [marg.] § 5 [4] ; Weston v. City Councils, 2 Peters, 449; B’k of Commerce Case, 2 Black. 620; B’k Tax Case, 2 Wall. 200; The Banks v. The Mayor, 7 id. 16; Bank v. Supervisors, id. 26; Nat.

(Reported below, 26 Hun, 622.) The police district created by the act chapter 415, Laws of 1881, entitled “ An act to establish the Niagara police district, and provide for the government thereof,” comprises that part of the town of Niagara in which is located the incorporated villages of Niagara Falls and Suspension Bridge, together with the intervening territory, and also a portion of the town lying between the village of Niagara Falls and Portage road.

favor of plaintiff, entered upon a verdict. (Reported below, 24 Hun, 506.) There was an action for false imprisonment. The material facts are stated in the opinion. The court erred in refusing to charge as requested, that the regulation of the defendant requiring passengers to produce and surrender a ticket or pay the legal fare before leaving a station was a reasonable regulation.

The nature of the action and the material facts are stated in the opinion. Until the capital of the Blair Iron and Steel Company is fully paid in the defendant is liable to the plaintiff. (Laws of 1848, chap. 40, §§ 10, 14, 24; Laws of 1853, chap. 333, § 2.) It was properly left to the jury to decide whether or not the trustees acted honestly and in good faith, in valuing the patents and iron works purchased by them at the sum of $2,500,000.

The nature of the action and the material facts are stated in the opinion. Assuming that the lease covered the premises in question plaintiffs are not estopped from setting up title under George Bennet, the lessee, against the defendants who claim under Dean, the lessor.

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review order made May 27, 1882, which reversed a judgment of the Court of General Sessions of the Peace, in and for the city and county of New York, the nature of which, as well as the material facts, are stated in the opinion. (Eeported below, 27 Hun, 272.)</p> <p>The trial was had in February, 1881.</p> <p>The several counts in the indictment were all for misdemeanors, arising out of one transaction, and therefore properly included in one indictment. (People v. McGeery, 6 Park. 653; People v. Bruno, id. 657.) The sentence imposed by the court was within the penalty fixed by statute for the offense charged in the first count of the indictment. (3 E. S. [7th ed.], chap. 20, p. 1965.) The fact that the court limited the sentence to the first count of the indictment negatives the assumption that a cumulative sentence was imposed, or that the sentence in any manner relates to the fifth count. (3 E. S. [7th ed.], chap. 20, p. 1965.)</p> <p>The first count of the indictment is defective because it did not contain the averments which were indispensable to bring the case within the provisions of the statute. (4 E. S. [Edmund’s 2d ed.] 40, § 2; People v. Allen, 5 Denio, 75; Wood v. The People, 53 N. Y. 511; United States v. Cruikshank, 2 Otto [U. S. Sup. Ct.], 542; Markle v. The State, 3 Ind. 535; People v. Taylor, 3 Denio, 91.) Evidence tending to prove a crime insufficiently pleaded in an indictment is proper. (Hope v. The People, 83 N. Y. 424.) The court erred in permitting any evidence to be given (at the trial) tending to sustain any of the counts in the indictment, for the reason that there was a misjoinder of the offenses charged. (Norvell v. The State, 50 Ala. 178; People, ex rel. Tweed, v. Liscomb, 60 N. Y. 579; Templeton v. The People, 3 Hun, 361.) It was within the province of the jury to have found the defendant guilty of the lesser offense, to-wit: guilty as charged in the fifth count, provided they entertained a reasonable doubt of the defendant’s guilt as charged in the first count in the indictment. (Dedien v. The People, 22 N. Y. 184; The People v. Jackson, 3 Hill, 92; Palmer v. The People, 5 id. 427; Commonwealth v. Webster, 5 Cush. 320; 3 Greenl. on Ev. [Redfield’s 8th ed.], § 29.) The defendant has not been brought within all the material words of the statute, either by the indictment or proof. (Wood v. The People, 53 N. Y. 514; People v. Townsend, 3 Hill, 479; 3 Greenl. on Ev., § 10; 2 Leach, 594; People v. Allen, 5 Denio, 76.) In order to bring the accused within the provisions of the statute relating to lotteries, and subject him to its penalties, he must be shown to have offended against both its spirit and its letter. (The State v. Sykes, 28 Conn. 228.)</p>

Also appeal from order of said General Term made April 1, 1881, denying a motion for reargument. (Reported below, 24 Hun, 265.) The nature of the action and the material facts are stated in the opinion. The discount of the note by the plaintiffs at nine per cent was usurious, whether it were a loan or forbearance of money.

(Reported below, 24 Hun, 496.) This action was upon a bond executed by the defendants, the material portion of which is set forth in the opinion, wherein also are stated the material facts. A contract for surety-ship is governed by the same rule of construction as other contracts.

This action was brought to restrain defendant from constructing its road in that portion of Front street, in the city of New York, opposite plaintiffs… Held: 2 Simons [N. S.], 133; Fish v. Dodge, 4 Denio, 311; Walker v. Brewster, L. R., 5 Eq. Cas. 25; Dargan v. Waddell, 9 Ired. 244; Brill v. Flagler, 23 Wend. 354; McKeon v. See, Robertson [1 N. Y. Supr. Ct.], Ct.], 449; Green v. London General Omnibus Co., 7 C. B. [N. S.] 290; Milarkey v. Foster, 6 Oreg. 378; S. C., 25 Am.

<p>Upon application of a receiver, appointed in supplementary proceedings, to be substituted as plaintiff in certain actions pending, brought by M., the judgment debtor, notice of which application was served upon the attorney for M., an order was made granting the application upon the condition that the judgment creditor should pay to said attorney, in satisfaction of his lien for his fees and charges a sum which had been agreed upon between him and the attorney for the judgment creditor. This agreement was made without notice to or knowledge of the judgment debtor. The condition was complied with and the substitution made. Subsequently upon motion in one of the actions, wherein the receiver was thus substituted, in which action a judgment in favor of the plaintiff had been rendered, and upon its appearing that the defendant therein had purchased the judgment in the action in which the receiver was appointed, the receiver was required to allow in satisfaction of his judgment the amount so paid to the attorney on such substitution. Held error; that the order fixing the compensation of the attorney was not binding upon his client; that the amount due the attorney could not be determined, except in a direct proceeding between him and his client, of which the latter had notice.</p> <p>To warrant a set-off on motion, both claims must be such as have been determined by a binding adjudication.</p> <p>The court has no power, without personal notice to the judgment debtor, to make an order directing a receiver appointed in supplementary proceedings, to apply any portion of the funds coming to his hands in payment of judgments other than that under which he was appointed, or those to which his receivership has been extended as prescribed by the Code of Civil Procedure (§ 2464, et seq.) It is his duty to restore to the judgment debtor any surplus after the satisfaction of these judgments, and such an order made without notice to the debtor is not binding upon him, and would be no protection to the receiver.</p>

The nature of the action and the material facts are stated in the opinion. It is the duty of a sheriff to obey the instructions of the party issuing the execution. (Root v. Wagner, 30 N. Y. 1; Gorham v. Gale, 7 Cow. 739; McKinley v. Tucker, 6 Lans. 214; Smith v. Smith, 60 N. Y. 161; Sherry v. Schuyler, 2 Hill, 204.) Where the party issuing execution gives directions to the deputy, he thereby makes the deputy his agent, and the sheriff is no longer responsible.

These are appeals from judgments of the General Term of the Supreme Court, in the third judicial department, entered upon orders made February 11,1881, which affirmed judgments in favor of plaintiff, entered upon a decision of. the court on trial without a jury.

<p>A policy of fire insurance issued to plaintiffs stated that the property insured was “ contained in their frame storehouse, with slate roof, situate detached at least one hundred feet on the east side of Lake Champlain.” In an action upon the policy, held that the words italicised were not mere description of the building, but related to the character of the risk, and amounted to a warranty to the effect that no other buildings of such size and character, as to constitute an exposure and increase the risk stood within the distance specified.</p> <p>It appeared that the only building within one hundred feet was a small office which stood about seventy-five feet from the storehouse. The evidence tended to show, and the trial court found, that this building was not an exposure and did not affect the risk. Held that there was no breach of the warranty.</p>

This action was brought to recover a balance alleged to be due for work and material in building a stone pier in the Gowanus canal. Plaintiff claimed that the work, save some extra work, was to be done for a gross sum, and that no price was fixed for the extra work; defendant claimed the agreement to be that the work should be paid for at a specified price per cubic yard.

Tinsley, the official court stenographer, twenty-five cents per page for making and furnishing to the district attorney a “ daily copy ” of the testimony given on the trial of an indictment for murder, and directed the county treasurer of said county to pay the same. The trial was had in September, 1879. The pages of the copy so furnished contained about one and a half folios.

The complaint in this action shows that before August 20, 1880, the plaintiff bought and received of the defendant Arthur, merchandise, of the value of $2,478.52 less $21.83 to be deducted for freight due for transportation of said merchandise, but were forbidden to pay Arthur, by defendant Power, “ acting as receiver,” who claimed the said purchase-price, and threatened to sue therefor; that Arthur in June, 1881, brought a suit, which is still pending, against the…

Dunning and others, trustees, etc., defendants. This was an action of ejectment. The material facts appear in the opinion. A mortgagee or his assignee in possession of the mortgaged premises is protected in his possession by the mortgage.

Smith, a purchaser, to take title to lands sold under a judgment herein. The facts were admitted substantially as follows: John F. Griffin and William G. Bailey, being seized in fee of certain real estate situate in Brooklyn, conveyed same to Freeman Dodd.

(Reported below, 25 Hun, 638.) ' The indictment contained two counts, one charging burglary, the other petit larceny. The accused filed special pleas to the first count, that there was no evidence given before the grand jury of the commission of the crime of burglary; to the second count, that the said Court of Sessions had no jurisdiction to try him for the offense of petit larceny.

This action was upon a promissory note in the usual form for $800, made by defendant, a married woman, payable to the order of John F. Pruyn, her husband, at plaintiff’s bank.

The nature of the action and the material facts are stated in the opinion. The doctrine of tacking has had no application in this State since the passage of the registry laws. (Grant v. U. S. Bank, 1 Caine’s Cas. 112; 4 Kent’s Com. 178.) The most that can be claimed of the estate in remainder is that it shall stand as security for the sufficiency of the life estate for the payment of the public burdens and interest while the mortgage is outstanding. (Hayes v. Ward, 4 Johns.

AlPpead from a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 25, 1881, which affirmed an order of Special Term, denying a motion for a new trial and directed judgment in favor of plaintiffs, on a verdict.

This action was brought to recover damages for alleged fraud on the part of defendant, by which plaintiff was induced to convey to said defendant a farm, receiving in exchange therefor certain premises in the city of Albany and certain bonds secured by mortgages on real estate.

This action was brought against defendant, a mutual insurance company, organized under the act authorizing the formation of town insurance companies (Chap. 739, Laws of 1857, as amended), to compel it to issue a policy in pursuance of an alleged agreement to that effect, and to pay the amount of a loss thereon.

(Reported below, 24 Hun, 514.) The action was brought by William H. Fliess, individually, and as executor with Sarah H. Fliess, of the estate of Robert Fliess, deceased. The facts stated in the complaint, and upon which the questions raised by the demurrer turn, are as follows: John Buckley in his life-time, owned in fee three parcels of land in the city of Brooklyn, situated respectively on Clermont avenue, Stuyvesant avenue and Quincy street, and Myrtle avenue.

This action was brought upon a lease under seal, for a term of three years, of certain office-rooms in a building in 3STew York city. The complaint alleged the occupancy by defendant for the whole of the term, and a default in the payment of the rent for the last half year. The substance of the answer is set forth in the opinion. The defendant is entitled to any defense the facts averred will justify.

<p>Under the provision of the Code of Civil Procedure (§ 829), prohibiting a party to an action from testifying in his own behalf, against “ a person deriving his title or interest from, through, or under a deceased person,” concerning a personal transaction or communication between the witness and the deceased person, a party cannot testify to a conversation between himself and a deceased grantor, under whose conveyance the opposite party claims, although the latter was not the immediate grantee of the deceased, but derived title through one or more mesne conveyances.</p> <p>The possession which will be sufficient to put one proposing to purchase real estate from the person having the record title on inquiry, and which will be equivalent to actual,.notice of rights or equities in another must be actual, open and visible, not equivocal or consistent with the title of the apparent owner by the record.</p> <p>In an action of ejectment, plaintiff claimed under a deed from P., who was the grantee of ft. Defendant claimed that the lands were purchased by him of ft., and that P., who acted as his agent, fraudulently caused the title to be transferred to himself. It appeared that both defendant and P. lived upon the land at the time of the conveyance to plaintiff, and apparently occupied it jointly. Plaintiff had no actual notice of defendant’s rights. Held, that as P. had the record title, the proper inference was that defendant’s possession was under him, and in subordination to his title; and that, therefore, plaintiff was not chargeable with constructive notice of defendant’s equities.</p>

• This action was brought upon a note for $2,820, executed by defendant dated ¡November 20,18Y8, payable four months after date to the order of Eosenbach & Co., and indorsed by them to the plaintiff.

This action was brought to recover a balance alleged to be due on an account for goods sold and delivered. It appeared that there were mutual open accounts between the parties running for a long series of years. Defendant, as a witness in his own behalf, produced his account book, wherein was his account against the plaintiff.

The subject of one action was lands situate in the city and county of Hew York, of the other lands situate in Kings county. Two of the defendants in the former action were not parties to and had no interest in the subject of the latter action. The court had no power against the objection of the parties in interest to change the place of trial of a local action which is brought for the partition of real property to a county other than where the land is situated.

The indictment charged that defendant, on the 10th day of February, 1880, at the city of Buffalo, with the intent to cheat and defraud John Thompson, did “ unlawfully, knowingly and designedly, falsely pretend and represent unto the said John Thompson, that he, the said John H. Blanchard, was agent for Otto Gulick, of Utica; and that he wanted to buy eighteen cattle for Otto Gulick, of Utica; and that Otto Gulick, of Utica, wanted him to buy for him and send him eighteen…

This action was brought to foreclose a mortgage executed by defendant Cameron, which mortgage with the accompanying bond had been assigned by defendant Hale to plaintiff. In and by the assignment, Hale guaranteed the payment of the bond; this was set forth in the complaint, and a personal judgment was asked against Hale for any deficiency. It appeared that in October, 1874, Hale served upon plaintiff a written notice requiring it to foreclose the mortgage.

This action was brought to recover the amount of a promissory note executed by defendant to Isaac C. Lbper, plaintiff’s testator, which the complaint alleged had been lost or destroyed. The referee found that said Loper executed to defendant a deed of certain premises, and in consideration thereof, the note in suit was executed* and delivered to the grantor, who thereafter voluntarily and intentionally canceled, destroyed, and surrendered up the same to the defendant.

(Reported below, 24 Hun, 538.) The nature of the action and the material facts are stated in the opinion. One asserting a lien by virtue of the Mechanics’ Lien Acts must bring himself within their terms, regularly and strictly. They cannot be extended by implication.

The material facts are stated in the opinion. The assessment-rolls and proceedings based thereon did not sufficiently describe the land. That objection could not be overcome. (Ronkendorf v. Taylor's Lessees, 4 Peters, 354-362; 11 Barb. 173; 10 N. Y. 509; 13 Johns. 97; 6 Gray, 551; 3 Barb. Ch. 528, 583; 29 La.

of the court on trial without a jury. The nature of the action and the material facts are stated in the opinion. The court below erred in deciding that the work for which compensation is sought was included in the contract. (Vom Hagen v. Van Rensselaer, 18 Johns. 420; Pitney v. Glens Falls Ins. Co., 61 Barb. 335; 1 Story on Cont., § 784; Hutchins v. Groom, 5 C. B. [Man.

(Reported below, 24 Hun, 541.) The nature of the action and the material facts are set forth in the opinion. The award of interest from the date when the debt was payable by the company is erroneous. (Burr v. Wilcox, 22 N. Y. 551, 557; Chase v. Lord, 77 id. 1; Van Rensselaer v. Jewett, 2 id. 135; 140; Barnard v. Bartholomew, 22 Pick. 291; Munger v. Jacobson, 12 Rep. 330; Cole v. Butler, 43 Me. 401; Sacket's B'k v. Blake, 3 Rich.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made Hay 3, 1881, which affirmed a judgment, in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>This action was upon a bond executed by defendant Olmstead as principal, and defendant Clement as surety, the substance of which as well as the material facts are stated in the opinion.</p> <p>The bail did not continue liable for Olmstead’s acts after his resignation. (Gilbert v. Luce, 11 Barb. 91; Bissell v. Saxton, 77 N. Y. 191.) The minor capacity in which he continued after his resignation was an entire new employment, for which the surety did not agree to be liable. (Chitty on Contracts [10th Am. ed.], 568-571 Phillips v. Foxall, L. R., 7 Q. B. 666; Sanderson v. Astor, L. R., 8 Exch. 73; Buyers v. Eve, L. R., 13 Eq. 450; 7, Montague v. Tidcombe, 2 Vt. 518; Railton v. Matthews, 10 C. & F. 934.) The bond merely provides that the surety will guarantee that “ Olmstead shall well, truly, honestly and faithfully perform his duties,” etc. In such a case the surety is not liable for a mistake, etc. (Union Bk. v. Clossey, 10 Johns. 271; 15 Wend. 316; 1 Zabriskie, 100.)</p> <p>The defendants cannot be charged in this action for any thing but a breach of official duty by Olmstead as actuary during the term while he was acting as such. (Bissell v. Saxton, 77 N. Y. 191, 194.) The words “ well, truly, honestly and faithfully ” in the bond apply to the honesty and not to the ability of the officer. (Union Bk. v. Clossey, 10 Johns. 271; S. C., 11 id. 182; U. S. Bk. v. Stearns, 15 Wend. 314, 316; Ins. Co. v. Lowenberg, 14 W’kly Dig. 326.) Clement, as bail, did not continue liable for Olmstead’s acts after his term of office had expired. (Gilbert v. Luce, 11 Barb. 91; Bissell v. Saxton, 77 N. Y. 191.)</p> <p>Olmstead had no authority by his sole act to adjust the account between himself and the barde, or to draw from the bank its money to pay a debt to himself. (Voltz v. Blackmar, 64 N. Y. 446.) He was the mere agent of the bank, and, as such, could not deal with himself as against his principal any more than any private agent could. (Austin v. Daniels, 4 Denio, 299; Butts v. Weed, 37 N. Y. 317.) It was a conversion of the funds of the bank for Olmstead to invest them in such security as the Waring note, for which he was liable. (Austin v. Daniels, 4 Denio, 299; Hun v. Cary, 59 How. 439; Morse on Banking, 195, 196; Alexander v. Cauldwell, 83 N. Y. 480.) The contract under which Olmstead was employed was an entire one, and the compensation to which he was entitled was such sum, not exceeding $1,000 a year, as the net profits of the institution taken through his whole term warranted, and he cannot be allowed to select such portions of time or fix such date as he may choose, and draw the profits out to that time as his salary, regardless of subsequent losses occurring under his own management. (Osbrey v. Reimer, 49 Barb. 265; 51 N. Y. 630; Dunham v. Lee, 14 W’kly Dig. 75.)</p>

(Reported below, 15 J. & S. 430.) This action was brought against defendants, who were stock brokers, for alleged breach of contract, the substance of which, as well as the material facts are stated in the opinion. Plaintiff had supplied defendants with an acceptable guaranty, and his rights were the same as though he had paid the purchase-money in full.

(Deported below, 15 J. & S. 293.) The nature of the action and the material facts are stated in the opinion. The mortgages were fraudulent and void, because they were based on a fictitious debt and were made with intent to defraud, and there was no change of possession.

(Reported below, 23 Hun, 625.) The nature of the action and the material facts are stated in the opinion. Where a contract has mutual obligations, one party cannot insist on performance by the other parties of their part when he is unable and unwilling to carry out his part thereof, as the mutuality of the contract is destroyed.

This action was upon a policy of fire insurance, issued by defendant to plaintiffs, the material portions of which as well as the facts are stated substantially in the opinion. Whether the vessel was “lying at anchor” was a question of fact and should have been submitted to the jury. (1 Greenl. Ev., § 278.) The meaning of particular words in a written instrument may be determined by paroi evidence.

(Reported below, 15 J. & S. 242.) This action was brought by plaintiff, who claimed as assignee of one Knapp, to recover to the amount assigned, a claim against defendant.

” The motion to amend the order was made on behalf and on the petition of Lewis Roberts. The material facts are stated in the opinion. Even an oral agreement that one shall have a lien, with possession under the agreement, is a valid lien in equity and will be enforced as such. (Dean v. Anderson, 34 N. J. Eq. 496; Seymour v. Canandaigua, 25 Barb. 284, 302; Northrop v. Cross, Seld.

The nature of the action and the material facts are stated in the opinion. The order is appealable. It was not discretionary with the court below whether the judgment should stand or not. (Blossom v. Estes, 84 N. Y. 614; Equitable L. Ins. Co. v. Stevens, 63 id. 341; White v. Coulter, 59 id. 629; Rice v. Ehle, 55 id. 518, 524; Code of Civil Procedure, § 1337.) The order appealed from affected a substantial right.

(Reported below, 27 Hun, 548.) The material facts are stated in the opinion. An injunction can only restrain1 parties to an action, and those acting under them as agents, officers and employes. Every person affected by an injunction order has a right to be brought into court so that he may be heard. (Code of Civil Procedure, 603, et seq.; Watson v. Fuller, 9 How. 425; Edmonston v. McLeod, 19 Barb. 356; 16 N. Y. 543; Fellows v. Fellows, 4 Johns.

The words “ money raised ” in the fourth section of the act in question, should be read “money to be raised” or “ money hereinbefore provided to be raised.” (Miller v. Solomon, 7 Exch, 546; Smith v. People, 47 N. Y. 341; People v. Utica Ins. Co., 15 Johns. 381; Potter’s Dwarris on Statutes, 734, 231; 1 Kent’s Comm. 462; Matter of Comm’rs of Wash.

It makes no difference whether the interest is in express terms abated by the act, so long as it expresses an amount which will pay the arrears in full. (Tilloston v. Preston, 3 Johns. 229; Johnston v. Brannan, 5 id. 268; Consequa v. Fanning, 3 Johns.

The nature of the action and the material facts are stated m the opinion. A note or obligation will never be taken as payment of a debt unless it is expressly agreed to be so taken.

(Reported below, 24 Hun, 607.) The substance of the complaint is set forth in the opinion. The complaint states no cause of action for deceit, because it does not allege that the defendant or its agent knew that the alleged representation was false, or believed, or had reason to believe, that they were false, or intended to deceive or to defraud the plaintiffs, or to deceive or to defraud any one whomsoever.

<p>The provision of the charter of the city of Brooklyn (§ 27, title 19, chap. 863, Laws of 1873), exempting the city from liability for the misfeasance or nonfeasance of its officers, does not apply to a failure to discharge a duty resting upon the city itself, and which it has not devolved upon any of its officers.</p> <p>In an action against the city for damages resulting from a nuisance alleged to have been caused by the negligent construction of a sewer, it appeared that by the plan of the sewer as adopted and filed by the board of water commissioners, it ran past plaintiff’s premises to a point where it would find a proper discharge. The sewer was constructed to a point a short distance above the plaintiff’s premises, and then a wooden trough or shoot was built to carry off its contents, in consequence of which noxious and deadly gases were emitted, injuriously affecting plaintiff's premises. Held, that the omission to complete the sewer was not a mere exercise of discretion, but a neglect of duty, for which defendant was liable; also that the fact that the disposition of the contents of the sewer by the currents and tides contributed to produce the injury, did not exempt the city from liability.</p> <p>Also held, that the negligence complained of was in the prosecution of a lawful purpose within the scope of the authority, of said board, and so was chargeable upon the city.</p> <p>A party who has caused an injury to another by failing to perform a duty cannot relieve himself from liability by showing that some cause arising out of such failure has contributed to produce the result complained of. Smith v. Oity of Boehester (76 N. Y. 506), distinguished,</p>

<p>Where securities are pledged to a hanker or broker for the payment of a particular loan or debt, he has no lien upon the securities for a general balance or for the payment of other claims.</p> <p>Defendants held a promissory note made by plaintiff, which was secured by the pledge of certain bonds. On the day when, by the terms of the note, it became due, plaintiff tendered the amount of the note with interest up to that date. Both parties treated the note as then due, and defendants refused to accept, or to deliver up the bonds solely upon the ground that they were entitled to hold them as security for another claim. In an action for conversion of the bonds held, that defendants could not defend upon the ground that the note did not mature until the expiration of the days of grace, and so, that the tender was premature; that the days of grace should be deemed as waived.</p> <p>As to whether the tender would have been sufficient had defendants refused to accept on the ground that the note was not due, or that the tender did not include interest for the days of grace, quasre.</p> <p>Defendants objected that one <J. was joint owner with plaintiff of the bonds, and was a necessary party plaintiff. It appeared that there was an agreement between plaintiff and Gr. that the latter should share in the profits and losses resulting from the purchase of the bonds. Plaintiff, however, furnished the means to make the purchase, and the evidence tended to show that it was also agreed that he should be sole owner of the bonds and have the exclusive right of possession. The jury found that Gh was not part owner. Held, that the finding was justified; and that the objection was untenable.</p>

(Reported below, 15 J. This action was upon a policy of fire insurance, the material portions of'which, as well as the facts pertinent to the questions discussed, are stated in the opinion. The representation by Dickinson as to the rate of insurance was at most an immaterial statement, being a mere expression of opinion of price. (Chandler v. Lopus, 1 Smith’s Lead.

The nature of the action and the material facts are stated in the opinion. It was error to receive in evidence the declaration of the defendant’s clerk, made on the sale of the soap, for no clerk is an agent to admit that his employer is committing or about to perpetrate a trespass or a tort. (Clark v. Met.

the General Term of the Superior Court of the city of Bew York, made June 19, 1882, which affirmed an order of Special Term denying a motion to revive this action. This action was commenced in 1859, to recover for taxes and assessments imposed upon premises in the city of blew York during the years from 1854 to 1859, which the defendant, Louisiana St. John, as lessee of the premises, covenanted to pay, but failing to pay, the plaintiff, the lessor, paid the same.

This was an action to foreclose a mortgage executed by defendant Salome Eleepfel to plaintiff. On the 23d of June, 1874, the plaintiff sold and conveyed to said defendant between one and two acres of land with the buildings thereon, constituting a tavern stand situate at Plessis, in the township of Alexandria, in the county of Jefferson, for $2,750, and conveyed the same to her by deed dated on that day.

(Deported below, 15 J. & S. 387.) This action was brought upon an undertaking executed by defendants on appeal. It appeared that on January 11, 1880, plaintiff recovered judgment in the Superior Court of the city of Hew York against one S. Starr Howland for $555.49. On February 9, 1880, Howland appealed.

(Reported below, 15 J. & S. 409.) This action was brought for an accounting in respect to certain collaterals pledged to defendant as security for a loan, including a note executed by the plaintiffs and that defendant be required to pay out of the surplus proceeds of said collaterals remaining after payment of defendant’s claim the amount collected on said note. At the opening of the trial defendant moved that the same be tried by a jury, which motion was denied.

(Reported below, 25 Hun, 332.) The nature of the action and the material facts are stated in the opinion. The assignments made by Mrs. Tetens to the plaintiff, prior to the death of her husband, were absolutely void. (Barry v. Eq. L. Ins.

The facts pertinent to the questions discussed are stated in the opinion. The indictment fails to charge any offense under the statute. (Laws of 1872, chap. 675, § 13.) The indictment fails to show that the defendant’s omission was in a statement as provided by statute. (Laws of 1872, chap. 675, § 54; People v. N. Y. C. R. R. Co., 5 Park. 195; Comm. v. Miller, 2 Pars. 481; 1 Whart. Grim..

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought against defendant as receiver of the Homestead Fire Insurance Company upon a judgment rendered in plaintiff’s favor against that company, the particulars of which, as well as the material facts, are stated in the opinion.</p> <p>The allegations contained in the complaint as to the jurisdiction of the court of Mercer county, of the subject-matter and of the person of the defendant in the suit therein, and the designation of the insurance commissioners of Pennsylvania as the person on whom process against the Homestead Insurance Company should be served, were put in issue by the answer of the defendant. (Code of Civil Proc., §§ 507, 519; Van Brunt v. Day, 81 N. Y. 251-254; Fellows v. Muller, 6 J. & S. 137-141; Smith v. Gratz, 59 How. 275; Harris v. Herrick, 9 Abb. N. C. 379; Calhoun v. Hallen, 25 Hun, 155; Allis v. Leonard, 46 N. Y. 688; Penn. Coal Co. v. Blake, 85 id. 226-234; Youngs v. Kent, 46 id. 672-673; People v. Northern R. R. Co., 42 id. 217-227-232.) The judgment recovered in the Pennsylvania court is void, as the court obtained no jurisdiction of the defendant in the suit, either by personal service on the defendant or any of its officers or agents. (Galpin v. Page, 18 Wall. 350, 366-368; Gibbs v. Queen Ins. Co., 63 N. Y. 114, 125; 2 Best on Evidence, § 353; Ferguson v. Crawford, 70 N. Y. 253-257; Kerr v. Kerr, 41 id. 272; Hoffman v. Hoffman, 46 id. 30; Noyes v. Butler, 6 Barb. 613; Shumway v. Stillman, 4 Cow. 292; Howard v. Bassette, 2 Hill, 301; Oakley v. Aspenwell, 4 N. Y. 512-521; Kennier v. Kennier, 45 id. 535-541; 2 Phillips on Evidence [Edwards’ ed.], 172-173; Robinson v. Ward’s Exrs., 8 Johns. 87-90; D’Arcey v. Ketchum, 11 How. [U. S.] 165; Dobson v. Pearce, 12 N. Y. 156-164; Sheriff v. Smith, 47 How. 470; Bradshaw v. Heath, 13 Wend. 407-413; Code of Civil Proe., § 532; Brown v. Balde, 3 Lans. 283-291; Starbuck v. Murray, 5 Wend. 148; Andrews v. Montgomery, 19 Johns. 163; Hill v. Mendenhall, 21 Wall. 453; Schwinger v. Hickok, 53 N. Y. 280.) The judgment recovered in the State of Pennsylvania if good against the Homestead Insurance Company is not binding on the receiver, the defendant in this action, nor is it even evidence against him in this suit. (3 It. S. [6th .ed.] 654, §§ 82, 86, 88, 94; Matter of Eagle Iron Works, 3 Edw. Ch. 385; Matter of Waterbury, 8 Paige, 380; Atty.-Gen. v. L. & F. Ins. Co., 4 id. 224; McEvers v. Lawrence, Hoff. Ch. 171-175; Campbell v. Hall, 16 N. Y. 575-578; Miller v. White, 50 id. 137-141; People v. Murray, 73 id. 535-538; Tinkham v. Borst, 24 How. 246; 1 Greenleaf on Evidence, § 189; Coan v. Osgood, 15 Barb. 583-588; Goddard v. Benson, 15 Abb. 191; Requa v. Holmes, 16 N. Y. 193; Stacy v. Thrasher, 6 How. [U. S.] 44-59; Aspeden v. Nixon, 4 id. 467; Grout v. Chamberlain, 4 Mass. 611; Edward v. Diefendorf, 5 Barb. 398, 407; Hammon v. Huntly, 4 Cow. 493; Cayuga Bk. v. Bennett, 5 Hill, 236; Miller v. White, 50 N. Y. 137-141; Many v. Jagger, 1 Blatchf. 376.) By virtue of the appointment of the receiver, the insurance company was virtually dissolved. (Davenport v. City Bk. of Buffalo, 9 Paige, 12, 15; In re Berry, Receiver, 26 Barb. 55; Verplank v. M. Ins. Co., 2 Paige, 438-452; Talmadge v. Pell, 9 id. 410; McCulloch v. Norwood, 59 N. Y. 562-569; Sturgiss v. Vanderbilt, 73 id. 384; Sturgiss v. Drew, 11 Hun, 136; Tracy v. First Nat. Bk. of Selma, 37 N. Y. 523; Whittlesey v. Delaney, 73 id. 571-574; In re Maybin, 15 Bankr. Beg. 468; In re Williams, 5 id. 229; Bradford v. Rice, 102 Mass. 472; Noe v. Gibson, 7 Paige, 513; 2 Wait’s Pi*. 249.) The copy of the judgment-record was not properly certified under the laws of Congress or this State. (U. S. R. S., § 905.) The defense set up, which the defendant offered to prove, and which was overruled by the court on the ground that the judgment in Pennsylvania concluded the defendant, is a perfect defense to the action, and the court erred in excluding the same. (McEvers v. Lawrence, Hoff. Ch. 171-175.)</p> <p>Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of any other State. Congress may by general laws prescribe the manner of proving the same, and the effect thereof. (U. S. Const., art. 4, § 1; IT. S. B. S., § 905 ; Code of Civ. Proc., § 952; Abbott’s Trial Ev. 542, 543, 544; Snyder v. Barber, 18 N. Y. 468; Kinnier v. Kinnier, 45 id. 541; Sheriff v. Smith, 47 How. Pr. 470; Shumway v. Stillman, 6 Wend. 452; Mills v. Duryea, 7 Cranch, 481; 2 Pet. Con. Bepts. 578; McCullock v. Norwood, 4 J. & S. 180; Harrod v. Barretto, 1 Hall, 171; Foote v. Stevens, 17 Wend. 483; Kemps, Lessee, v. Kennedy, 5 Cranch, 173; Hatcher v. Rocheleau, 18 N. Y. 86-90.) The defendant was in no position to raise any question at the trial touching the jurisdiction of the court that rendered the judgment. (People v. N. R. R., 153 Barb. 98, 122; McEncroe v. Decker, 58 How. 250; Bixby v. Drexel, 9 Rep. 630; People v. Snyder, 41 N. Y. 397, 400; Potter v. Smith, 70 id. 299; Ferguson v. Crawford, id. 254; Miller v. Brenham, 68 id. 83; Shumway v. Stillman, 4 Cow. 292; S. C., 6 Wend. 448; Harrold v. Barretto, 1 Hall, 154; Black's Case, 4 Abb. Pr. 162; Starbuck v. Murrey, 5 Wend. 148; Abbott’s Trial Ev. 544, 545, n. 12; Maples v. Mackey, 14 W’kly Dig. 849.) It must be presumed that the company filed with the insurance commissioner of Pennsylvania the stipulation provided for. (La Fayette Ins. Co. v.. French, 18 How. [U. S.] 404; B'k. of U. S. v. Dundridge, 12 Wheat. 79; Nelson v. Eaton, 26 N. Y. 414, 415; Bennett v. Clough,1 B. & A. 361; People v. City of Rochester, 5 Bans. 15; Bosworth v. Vandewalker, 53 N. Y. 597; Bissell v. Wheelock, 11 Cush. 277; Stockwell v. McCracken, 109 Mass. 84; Abbott’s Trial Ev. 547; Hunt v. Hunt, 72 N. Y. 217; La Fayette Ins. Co. v. French, 18 How. [U. S.] 404; Gibbs v. Queen Ins. Co., 63 N. Y. 114, 131.) There is no force in the objection that because the defendant was appointed receiver of the company it became thereby dissolved, and no action could thereafter be maintained. (Kincaid v. Dwinelle, 59 N. Y. 548; S. C., 37 Sup. Ct. 326; Stancliff v. Ross, 57 N. Y. 643; Albany F. Ins. Co. v. Van Vranken, 42 How. Pr. 281; Claflin v. Farmers’ Bk., 54 Barb. 228; Bk. of Lyons v. Deamon, H. & D. 308.) Defendant was not entitled to give any proof tending to show a defense to the original contract of insurance. The contract was merged in the judgment. (Berley v. Palmer, 1 Hill, 482; Lozier v. Westcott, 26 N. Y. 146; Hatcher v. Rocheleau, 18 id. 86; Dobson v. Pierce, 12 id. 156; Embury v. O’Connor, 3 id. 522; Baker v. Rand, 13 Barb. 152; Smith v. Wilson, 62 N. Y. 286.) The provisions of the statute in regard to the voluntary dissolution of insolvent corporations apply to a receiver appointed after judgment of dissolution, which dates back to the time of filing the petition. (Sands v. Hill, 55 N. Y. 18; 26 Barb. 60.) The laws of Pennsylvania were properly proven and admitted, the book from which the same were read purporting to be published under the authority of that State. (Code of Civil Procedure, § 942.)</p>

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made September 12, 1882, which affirmed two orders of the surrogate of the county of Westchester, one of which required Frederick Hood and Maria Louise Hood to account as executors of the will of Andrew Hood, deceased ; the other revoked the letters testamentary because of failure to comply with the first order. (Reported below, 27 Hun, 579.)</p> <p>The material facts are stated in the opinion. •</p> <p>These petitioners are bound by the decree made in 1869. (Code, § 2473; Harrison v. Clark, 14 W’kly Dig. 135; Hood v. Hood, 85 N. Y. 578.) The decrees of the surrogate are unauthorized, as it appears that the appellant is acting, not as an executor, but as a testamentary trustee, and that the provisions of law applicable to testamentary trustees have not been complied with. (Code, § 2514, subd. 6,§§ 2802-2820 ; Bedfield’sLaw& Prac. of Surr. [2d ed.] 652-3, 660-1; Code, § 2819, subd. 2; Hurlbut v. Durant, 25 Alb. L. J. 316; S. C., 14 W’kly Dig. 287; Perry on Trusts [3d ed.], §§ 262, 263.) The pendency of the action in the Supreme Court, in Kings county, is a bar and defense to this proceeding. (Groshon v. Lyon, 16 Barb. 461; Duffy v. Duncan, 32 id. 589; Dawley v. Brown, 65 id. 107; Lewis v. Maloney, 12 Hun, 207; Vanderbilt v. Vanderbilt, 54 How. Pr. 250; Schuele v. Reynolds, 13 N. Y. W’kly Dig. 172; Bell v. Donohue, id. 253; Travis v. Meyers, 67 N. Y. 542; Redfield’s Law & Practice of Surrogate’s Court [2d ed.], 642; Christy v. Libbey, 5 Abb. Pr. [N. S.] 192; Lewis v. Maloney, 12 Hun, 207.) The former action having been brought for the benefit of all the parties interested in the estate, its pendency is a bar to proceedings by some of those parties in another court to reach the same result. (Kerr v. Blodgett, 48 N. Y. 65; Kerr v. Davis, 7 Paige, 54; Botts v. Cozine, 2 Edw. Ch. 583; Groshon v. Lyon, 16 Barb. 441; Wager v. Wager, 15 W’kly Dig. 67-68 ; Bedfield’s Law and Practice of Surrogate’s Court [2d ed.], 652-653.) Where jurisdiction of an equitable subject-matter has been once properly acquired, it will be retained until a complete disposition of the controversy has been, made. (43 N. Y. 598, 584; 33 How. 373; Story’s Eq. Jur., §§ 796-797; Wager v. Wager, 15 W’kly Dig. 67-68.) The fact that the petitioners were infants when the Supreme Court suit was brought, and that now two of them institute this proceeding in their own right as adults is no excuse for this proceeding. (2 Barb. Ch. Pr. [2d ed.], book 5, chap. 5, pp. 208, 209.)</p> <p>The application of the petitioners, and the order of. the surrogate thereon, that a citation issue to the executors to show cause why they should not render an account of their proceedings were proper. (Code of Civ. Proc., §§ 272L-2726; Hood v. Hood, 85 N. Y. 561.) The decree of January; 1869, was not binding upon the petitioners, for the reason that it appears therefrom that they were then infants, and it does not appear that service of the citation was made upon the person with whom they resided. (Hood v. Hood, 85 N. Y. 561; 19 Hun, 300.) After a final account has been made the executor may be required to- render a further account as to the disposition of any moneys in his hands at the time of the making of the decree or subsequently received. (President, etc., v. Hasbrouck, 6 N. Y. 221; Dayton, 500; Code, §2742; 2 R. S. 94, § 65.) The pendency of a former action is not a valid plea as a bar to a second action where the complainants are not the same even where the relief demanded is the same. (Rogers v. King, 8 Paige, 211; Betts v. Cozene, 2 Barb. Ch. 211; 1 Daniels’ Ch. Pr. 65, 98, 79.) Where it appears that the rights of infants are in danger of being prejudiced by the acts of others, the court exercises its protective jurisdiction over them, and will shield them from injury. "(Tyler on Infancy, 177.)</p>

In the year 1840 the suit lastly above entitled, which was a creditor’s suit, was instituted in the late Court of Chancery for the purpose of reaching the property and equitable interests of the defendants therein, and appropriating the same to the payment of the judgment.

(Reported below, 27 Hun, 229.) The affidavits upon which the application was made stated in substance that the attachment was issued to the sheriff February 10, 1877, and immediately thereupon he levied upon and attached property sufficient to satisfy plaintiff’s claim, to wit, a $10,000 United States bond, and that thereafter defendant settled with the plaintiff and paid the amount of his claim. There could be no poundage allowed since there had been no sale. (German, Am.

This action was commenced in 1872, by the service of the summons on defendant’s secretary in the city of Brooklyn, where he resided, and was brought to recover damages alleged to have been occasioned by false representations, whereby plaintiff was induced to accept a policy of life insurance issued by the defendant, a corporation organized under the laws of. this State.

(Reported below, 25 Hun, 101.) This was an action by the plaintiff as indorsee of a check for $305, dated New York, October 29, 1878, drawn by the defendant upon the Corn Exchange Bank, payable, for value, to the order of Edward F. Murray, and by him indorsed in blank and delivered to the Merchants and Mechanics’ Bank in Troy, by whom it was transferred to the plaintiff.

This action was brought to foreclose a mortgage executed by the defendant, George M. Spring, to the plaintiff, who is the father of the mortgagor. The appellants are judgment creditors of the mortgagor. The defense set up by them is, that the mortgage was executed without consideration, with intent to defraud creditors. The mortgage, although dated 11th of April, 1872, was not executed until the 5th of October, 1876. It was recorded on the day of its execution.

The action was tried in February, 1879, and the complaint was dismissed; at the same time a motion was made for a new trial which was denied. On March 21, 1879, judgment was entered. On April 8, 1879, plaintiffs attorney served notice of appeal from the order denying the motion for a new trial. On April 26, 1879, a copy of the judgment with written notice of the entry thereof was served upon said attorney.

<p>C. and W. owned certain real estate as partners ; W. executed a quit-claim deed of his interest to O., who executed in return his bond with a mortgage on the premises for $5,000, which the mortgage recited was for the purchase-price. On the same day W. assigned the mortgage to S. for $4,500, both O. and W. joining in a statement that it was given for a good consideration and not for the purpose of raising money. C. and wife subsequently conveyed the premises to M., who thereafter conveyed them to Mrs. C. In an action to foreclose the mortgage by plaintiffs, who claimed as assignees, the defense was that the transaction was, in fact, a usurious loan to the firm, the deed and mortgage having been executed at the instigation of S. to avoid the usury law. S. died prior to the commencement of the action. On the day before the trial W. executed to Mrs. C. a quit-claim deed of his interest in the premises. W. was called as a witness for defendants, and was allowed to testify, under objection and exception, to a conversation had with S. before the execution of the mortgage, which tended to sustain the defense. Held error; that the witness was incompetent under the Code of Civil Procedure (I 839).</p>

The nature of the action and the material facts are stated in the opinion. An engineer is not chargeable with negligence in omitting to keep a watch on each side of his engine, to see that.no one was injured by coming up to the engine laterally. (Bulger v. Albany Ry., 42 N. Y. 459.) The onus was upon the plaintiff to prove that his injury was caused by negligence on the part of the defendant’s employes. (Directors M. R. Co. v. Jackson, L. R., 3 App.

(Reported below, 14 J. & S. 484.) This action was ejectment, originally brought by the plaintiff against the defendant Darcy, to recover possession of a lot of .land in the twelfth ward of the city of Hew York, on the north side of One Hundred and Twentieth street, twenty by one hundred feet, the easterly side of the lot being one hundred feet west from Third avenue.

The nature of the action and the material facts are stated in the opinion. The bond and mortgage were not negotiable securities. If they should be found or fall into the hands of any third person their possession would not be prima facie evidence of title. (Barrick v. Barrick, 21 Barb. 241.) A bond of indemnity is not required in an action on a lost instrument unless the same is negotiable.

This was a reference under the statute of a disputed claim against the estate of Benjamin F. Arnold, defendant’s testator. The deceased and his two sons, one of whom is the plaintiff, were, prior to his death, in partnership. Some years before his death the deceased invested $2,000 of the co-partnership funds in a bond of the State of Hew York. This he subsequently sold, and the proceeds were deposited in bank to the credit of his individual account.

(Eeported below 27 Hun, 599.) William L. O’Neill, a British subject, had practiced as an attorney at law in England from 1875 to 1881. Upon proof of that fact and upon satisfactory evidence of his character and qualifications, and upon proof of age and of his having declared his intention to become a citizen, the Supreme Court of the second department on May 8, 1881, made an order admitting him to practice as an attorney and counselor at law in the courts of this State.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made April 28, 1880, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.</p> <p>This action was brought to recover damages for injuries to plaintiff alleged to have resulted from a malicious and unjustifiable attack made upon him by one of defendant’s employes. The defendant is a railroad corporation, owning and operating a street railroad • in the city of Brooklyn. The plaintiff was a passenger on one of the defendant’s horse cars, having no conductor; the driver being the only person in charge of the car, and acting both as driver and conductor. While the plaintiff was on the car a newsboy jumped on it, and was ordered off by the driver. The boy got off; the driver stopped his car, tied the reins round the brake handle, climbed over the front dash board and ran after the boy, caught him, and beat him. The passengers interfered to protect the boy. Afterward the driver returned to the car and started it, but, being excited, began to abuse the passengers, calling them bastards, etc., and finally entered the car, seized the plaintiff by the coat, pushed and knocked his head against the panel of the window, at the same time striking him across the head with the butt end of his whip, thus beating the plaintiff severely. The passengers again interfered, and the driver drove his car on. When they came near the Eastern District Hospital the plaintiff was assisted out of the car and taken to the hospital, where his wounds were dressed. There was some evidence tending to show that the driver was under the influence of liquor. At the close of the case the plaintiff was non-suited, and judgment entered dismissing the complaint.</p> <p>The question whether defendant’s conductor acted within the scope of his employ-, ment should have been submitted to the jury. (Jackson v. Second Avenue R. R. Co., 47 N. Y. 274; Mott v. Consumers’ Ice Co., 73 id. 543; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 id. 25; Cohen v. D. D. E. B. & B. R. R. Co., 69 id. 170; Stackus v. N. Y. C. & H. R. R. R. Co., 79 id. 466; Hart v. Hudson R. B. Co., 80 id. 622; Bernhard v. R. & S. R. R. Co., 1 Abb. Ct. of App. Dec. 131; Redding v. S. C. R. R. Co., 16 Am. Rep. 681; Shea v. Sixth Ave. R. R. Co., 62 N. Y. 185.) Defendant, having chosen the conductor and put him in a responsible position, should be held liable for any improper or unfortunate results. (Hobbit v. L., etc., & R. Co., 4 Exch. 255; 15 Barb. 574; 51 id. 9; 27 Vt. 110.) The carrier’s obligation is not only to carry his passengers safely and properly, but also to treat them respectfully. He must not only protect them from violence by strangers and co-passengers, but must a fortiori against the violence of his own servants. (Goddard v. G. T. R. R., 57 Me. 202; 2 Am. Rep. 39; Railroad v. Bleeker, 27 Md. 277; Pittsburgh R. R. Co. v. Slusser, 19 Ohio St. 157; Shirley v. Billings, 8 Bush [Ky.], 147; Atlantic & G. W. R. R. Co. v. Dunn, 19 id. 162; S. C., 2 Am. Rep. 382; Bryant v. Rich, 106 Mass. 189; Chamberlain v. Chandler, 3 Mason, 242; S. C., 8 Am. Rep. 311; Day v. Owen, 5 Mich. 520; Commonwealth v. Powers, 7 Mass. 596; Neeto v. Clark, 1 Cliff. 145; Bass v. Chicago R. R. Co., 36 Wis. 450; Crocker v. C., etc., R. R. Co., id. 657; 17 Am. Rep. 504; Hanson v. E. & N. A. R. R. Co., 62 Me. 84; S. C., 16 Am. Rep. 404.)</p> <p>If a servant, under the guise and cover of executing his master’s orders, and exercising the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, then the master is not liable. (Round v. D., etc., R. R. Co., 64 N. Y. 129, 136; Mott v. Consumers' Ice Co., 73 id.. 543; Mali v. Lord, 39 id. 81; Isaacs v. Third Ave. R. R. Co., 47 id. 122; Cosgrove v. Ogden, 49 id. 255.) The act and its motive determine whether the court can say responded superior, and not the condition the servant is in. (Wynn v. Allard, 5 Watts & S. 524.) The jury could not speculate and there was no room for inference. (Cordell v. N. Y. C. R. R. Co., 75 N. Y. 322.)</p>

(Reported below, 24 Hun, 617.) This was an action to recover possession of premises demised by a lease made on the 1st of May, 1850, for a term which would expire May 1, 1878. The action was begun September 12,1877. The defendant, Duryea, who is in possession as assignee of the lessee, alone answered.

<p>It is no defense to an action for divorce a vinculo where the parties were married in another State, that, hy a decree of divorce dissolving a former marriage of plaintiff, he was prohibited from marrying again at the time the second marriage was contracted; and this, although it appears that the parties were, at the time of their marriage, residents of this State, and for the purpose of evading its law went to the other State, returning hither immediately after their marriage and have since lived in this State. The marriage, if valid under the laws of the State where it was contracted, is valid here, and every right and privilege growing out of the relation so established attaches to each party thereto.</p>

AlPpeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made July 9,… Held: at which Finn and Atwood attended,, and of which Sheldon had notice, and that at said meeting a resolution was passed reciting that the suit had been decided against the company by which the company had been made liable for a large amount of damages which was then in course-of being ascertained, and when ascertained would have to be…

<p>The O. F. Seminary was incorporated for the purpose of conducting a school for the education of females, and by its charter (Chap. 145, Laws of 1825) it was declared that its funds should “ be exclusively devoted to female education.” Plaintiff advanced to said seminary $1,000, under a resolution authorizing such advance on condition that when the seminary “ shall cease ” it shall return that sum on demand, and shall give security for such return on its real estate. As such security, the seminary in 1827 gave a mortgage, which recited the resolution and contained a condition to the effect that “ in the event of said seminary ceasing,” and if it shall not pay said sum on demand plaintiff could foreclose, etc. Said seminary subsequently executed another mortgage upon the premises, which was foreclosed and the premises sold, and the seminary thereupon ceased to maintain any school, and has not since exercised any of its franchises ; it was divested, by the sale, of all its real estate, and had thereafter no means to enable it to keep or maintain any school. Held, that the seminary had “ ceased” within the meaning of the contract, and the contingency had happened upon which plaintiff was entitled to demand the snm advanced; that a formal dissolution of the corporation was not necessary, and that upon refusal to repay the money on demand plaintiff was entitled to foreclose.</p> <p>The attestation clause of the mortgage stated that the mortgagor had caused it to be signed by its president and sealed with the corporate seal. It was signed by one G., as president, and the corporate seal was attached. The only proof of execution was a certificate of acknowledgment of a commissioner of deeds upon the mortgage made in 1828, which was to the effect that S., the subscribing witness, being sworn, deposed that he knew G., “ the person described in and who executed the said deed;” that he saw G. execute the same, and that the seal affixed was the seminary seal. Held, that under the statute then in force (1R. L., 1813, p, 369, § 1) the certificate was sufficient to prove the execution of the instrument.</p> <p>S., at the time of the execution of the mortgage, owned three shares of capital stock of the seminary. Held, that he was not an interested witness within the meaning of the law then in force, and was competent to prove the execution of the instrument, as he was a witness to establish a claim adverse to his interest.</p> <p>Where the common seal of a corporation appears to be affixed to an instrument, and the signature thereto of the proper officer is proved, the seal is prima facie evidence that it was affixed by proper authority.</p> <p>An authority to take acknowledgment of deeds authorizes the acknowledgment of mortgages.</p>

This was a proceeding under the act. chapter 338, Laws of 1858, to vacate an assessment for a local improvement because of certain alleged irregularities and illegalities. The court reverse the orders of General and Special Terms upon the ground of entire absence of any evidence showing any irregularity or illegality in the assessment, stating ¿the rule as above, and citing In re Hebrew Benevolent Orphan Asylum (70 N. Y. 476); In re Bassford (50 id. 512).

The same general assessment sought to be vacated in this proceeding was under consideration and was held illegal in In re N. Y. P. E. Pub. School (75 N. Y. 321). The only complaint made here was that the assessment was greater than it should be, and the sole question to be determined was whether it could be reduced under section 27, chapter 383, Laws of 1870.