Volume 91 — New York Reports

Appeal, from order of the General Term of the Supreme Court, in the fourth'judicial department, made April 8, 1882, which affirmed an order of Special Term directing a new election of directors of the Syracuse, Chenango and New York Railroad Company. The material facts are stated in the opinion.

Writ of error to review a judgment of the Supreme Court General Term, in the Fourth Department (reported ante, p. 368), of May, 1882, affirming a judgment of the Court of Oyer and Terminer of Erie county, convicting defendant of peculation. The facts in this case have beep heretofore given (ante, p. 369), and need not be here repeated.

(Reported below, 15 J. & S. 322.) The controversy came up on interpleader proceedings, directed in an action brought by Kersey Coates as assignee of the Mastín Bank against Robert W. Donnell, Leonidas M. Lawson and George E. Simpson, to recover a balance claimed to be in their hands, growing out of collections for, and deposits made with them, by the Mastín Bank in the course of its business of banking.

This action was brought to recover the value of a quantity of wheat alleged to have been delivered to defendants, as common carriers, for transportation, and which they refused to deliver to plaintiff, the consignee. The defendants were the owners of the schooner “ Cheney Ames.” At the same time defendant Doyle with.

(Reported below, 25 Hun, 124). This action was brought by plaintiff, as “ trustee for Schuyler County Bank,” to foreclose a mortgage executed by George G. Freer and wife. The material facts are stated in the opinion.^

<p>Appeal from order of the General Term of the Supreme Court, in the third judicial department, made September 23, 1882, which affirmed an order of Special Term,- denying the application of certain of defendant’s policy-holders for allowances for disbursements and counsel fees payable out of the funds in the hands of the receiver of its property. The material facts are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made September 20, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

It appears from the complaint that on the 9th of November, 1874, Messrs. Kunhardt & Co. were depositors with the plaintiff, and on that day made their check upon it, payable to the order of William Ives and John Waters, for the sum of $19,000. On the next day it was presented, and then, purporting to be indorsed by the payees, was paid to the defendant and charged to the drawer’s account.

This was an action for libel and slander; it was brought originally against Richard F. Harison, who died after the argument of his appeal at General Term, and before the decision, and the present defendants were substituted.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made September 20, 1881, which affirmed a judgment entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to foreclose a mortgage executed by defendant Lynde to the New York Mutual Life Insurance Company to secure his bond for the sum of §4,200, which mortgage was assigned to plaintiff.</p> <p>The controversy was between Lynde and defendant William H. Bowne. The mortgage in suit was executed in July, 1871, it covered two farms, one known as the Gouverneur farm, the other as the Rossie farm. In March, 1876, Lynde sold to defendant Kelsey the Rossie farm for $6,-400, and at the same time bought of defendant William H. Bowne seventy-five acres of land for $3,000. Kelsey paid W. H. Bowne the $3,000, in pursuance of an agreement between the three parties, as follows : He assigned to Bowne a bond and mortgage which he, Kelsey, held on other lands for $800, and he gave to Bowne a mortgage on the Rossie farm for §2,200. It was a part of the agreement and understanding between the three parties that Kelsey was to assume and pay upon the insurance company mortgage the sum of $2,500 as and for a part of the purchase-price of the Rossie farm, and William H. Bowne took his mortgage for $2,200, with full knowledge of such fact. The remainder of the $6,400, to-wit, $900, Kelsey secured to Lynde by a mortgage upon the Rossie farm, subject to the two other mortgages. William H. Bowne supervised the execution of the foregoing arrangements, and he still holds the $2,200 bond and mortgage given him by Kelsey as aforesaid. In December, 1876, in pursuance of a contract between Lynde and Kelsey, the latter reconveyed the Rossie farm to the former, who satisfied the $900 mortgage thereon, conveyed ten acres thereof to Mrs. Kelsey, built a house thereon, and procured the ten acres to be released by defendant Bowne from the lien of his $2,200 mortgage ; he also agreed to protect the ten acres from the lien of the insurance company mortgage. Judgment was rendered declaring the mortgage of defendant Bowne subject to $2,500 of plaintiff’s mortgage, ordering the Rossie farm, excepting the ten acres, to be first sold, and $2,500 of the plaintiff’s mortgage, with unpaid interest thereon, to be paid plaintiff out of the, proceeds, remainder, if any, to be paid defendant Bowne to the amount unpaid upon his mortgage. If necessary the Gouverneur farm was ordered to be sold and the proceeds to be applied in payment of the balance of plaintiff’s mortgage.</p>

(Reported below, 24 Hun, 499.) This action was for an alleged trespass in entering upon, taking up and injuring oysters planted by plaintiff in North-port harbor, Long Island. Plaintiff claimed under a lease from the town of Huntington of the land under water whereon the oysters were planted.

<p>Appeal from judgment of the General Term of the Superior Court of tlje city of Rew Yolk, entered upon an order made December 8, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 16 J. & S. 1.)</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

This action was brought to recover of the defendants, who composed the firm of Winslow, Lanier & Co., the value of four instruments purporting to be treasury notes of the United States, commonly known as seven-thirty notes, alleged to have been sold by the'defendants to the plaintiffs on or about the 22d of September, 1867, which notes were afterward discovered to be counterfeits.

<p>The provision of the charter of New York city of 1873 (§ 91, chap. 335, of 1873) requiring any work undertaken for the city, involving an expenditure of over $1,000, to be let by contract in the manner specified, was intended as a general rule governing the action of all officers and departments of the city government.</p> <p>The provision of said charter (§ 73) vesting in the department of public works, created by the charter, the powers and functions previously possessed by the old department of public works and by the department of public parks did not preserve to the newly organized department the power formerly possessed "by the department of public parks to do the work they were authorized to perform in their discretion by day’s work instead of by contract.</p> <p>Prior to the passage of said charter, a plan for the drainage of the “ Boule- ' yard ” throughout its whole extent had been prepared and approved by the proper authorities. The sewers were divided into five sections or districts, each independent of and entirely disconnected with the others, having a different outlet and capable of being separately constructed without regard to the others. A separate assessment was made for the work in each section. When the charter was adopted some work had been done upon one of the sections. Held, that this was not work “in progress ” upon all the sections within the meaning of the exception in said provision in regard to contracts, exempting such work from the contract system ; that the sewerage of the Boulevard was not an entire work hut a series of separate improvements, and that, therefore, an assessment for constructing sewers in one of the sections whereon no work had been done prior to the charter, the improvement having been done by day’s work not by contract, was illegal and void.</p>

After judgment was perfected on the verdict, Sheldon died, and the present plaintiff, his administratrix, was substituted. (Reported below, 24 Hun, 196.) This action was brought upon five promissory notes, given by the defendant to said Sheldon, all dated at Kewanee, Illinois, and all made payable, with interest at the rate of ten per cent. The defense was usury.

• This action was brought to recover damages for injuries received by plaintiff caused by the falling upon him of a pile of bricks which had been placed in a street of the city by contractors engaged in taking down a building upon a lot adjoining the street. The material facts are stated in the opinion. ,

This action was brought to foreclose a mortgage. The defense was usury. The facts material to the question discussed are stated in the opinion.

This action was brought to restrain defendant from the use of a siding or turnout for its cars on Bergen street in the city of Brooklyn and for damages.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 9, 1881, which affirmed a judgment in favor of defendant, entered upon an order dismissing the plaintiff’s complaint on trial.</p> <p>This action was brought to recover damages for an alleged breach of contract.</p> <p>The material facts are set forth in the opinion.</p>

(Reported below, 28 Hun, 93.) It appears from the papers submitted that this action was commenced in January, 1875, for the purpose of setting aside a conveyance alleged to be fraudulent, and to compel the specific performance of a contract. The defendants employed Messrs. Hall and Blandy, as their attorneys, to appear for them and defend the action.

Mix upon the fund in the hands of the receiver of the defendant. The facts were stipulated substantially as follows: Defendant was a registered policy life insurance company, organized under chapter 902, Laws of 1869. In December, 1876, said Mix entered into its. employment as general agent, under a contract by which he was to receive a specified annual salary for a term of not less than five years.

This action was upon an alleged contract of insurance. For some years previous to July 1, 1876, defendant had insured a hotel known as the “ Eagle Hotel,” belonging to plaintiff, Henry W. Winne, upon which was a mortgage executed by him to his co-plaintiff, Benjamin J. Winne.

<p>The plaintiff in such action must establish that his vendor is without title ; that another is the true owner ; and that he has restored the property to such owner, that it has been taken from him under compulsory proceedings, or that he has parted with money or property in consequence of a judgment obtained against him, or voluntarily in answer to a claim made for the property.</p>

This action was brought to foreclose a mortgage executed by defendant Hamel in March, 1873, which with the accompanying bond was assigned by the mortgagees in June, 1873, to Susan A. Bergen, who in July, 1874, sold and assigned them to plaintiff. The defense was usury. The court found substantially these facts: When the mortgage became due, Mrs. Bergen caused notice .to be served on Hamel that she required payment.

This action was upon a joint and several promissory note, executed by the defendants. Defendant William Littlefield who alone defended, pleaded the statute of limitations. The note was dated March 24, 1868, payable one year from date. Said defendant William Littlefield and defendant Dorr signed in fact as sureties and for the accommodation of defendant Ira W. Littlefield, who was the son of William. The further material facts are stated in the opinion.

Appeal by defendant, from decision of the general term, affirming judgment of the General Sessions of New York, convicting defendant of murder in the first degree.

(Reported below, 25 Hun, 502.) This action was brought by plaintiff, as assignee in bankruptcy of Frank E. Harrow and Mary J. Harrow, to have certain' chattel mortgages executed by the bankrupts to defendant, adjudged void as to creditors,' and to compel him to account for and pay over the value of the mortgaged property, which it was alleged had. been taken and converted by him.

<p>The Mechanic’s Lien Law of 1875, for the city of New York (Chap. 379, Laws of 1875) was not repealed by the lien law of 1880 (Chap. 486, Laws of 1880), for the cities of the State.</p>

<p>Appeal from order of the General Term of the Superior Court of the city of Hew York, made December 4, 1882, the nature of which, as well as the material facts, are stated in the opinion.</p>

<p>When a preference is claimed on the calendar of this court under the provision of the Code of Civil Procedure (§ 791, sub. 7), giving a preference in “an action against a corporation * * * issuing bank notes or any kind of paper credits to circulate as money,” and the fact thus giving a right to a preference does not appear in the pleadings or other papers on which the appeal is to be heard, the party desiring the preference “ must procure an order therefor from the court or a judge thereof upon notice to the adverse party ” (§ 793).</p> <p>It is no excuse for a failure to procure the order that there was no term of the court at which a motion for the order could be made. Suck a motion may be made on notice before any judge of the court, at his residence or office, or at any place which the judge on application of the moving party may name.</p>

<p>Appeal by defendant from a judgment of the General Term of the Supreme Court in the First Department, affirming a conviction in the Court of General Sessions for the city and county of New York, convicting the defendant of murder in the first degree. The facts of the case together with the points of counsel are given in the report of the case at General Term, ante, page 105.</p>

<p>Where the attestation clause to a will is full and complete, it is not always essential that all the particulars required by the statute to constitute a valid execution of the instrument should be expressly proved. The presumption is in favor of due execution, and a failure of recollection on the part of the subscribing witnesses will not defeat the probate where the surrounding circumstances, taken together with the attestation clause, satisfactorily establish such execution.</p> <p>The witnesses to a will, the attestation clause to which was in due form, and which was executed more than fourteen years before the death of the testatrix, testified in substance that they had not a clear recollection of what occurred at the time of the'execution, that they must have read or heard read and understood the purport of the attestation clause, as they never signed any document without knowing its contents, and that they would not have signed if the facts stated in said clause had not occurred, one of them also testified that the signatures of the testatrix and the two witnesses were made in the presence of each other, and that he recollected that said clause was read or that he heard it read. Held, that the evidence justified the admission of the will to probate.</p>

<p>A will was written upon the two sides of a piece of paper ; the subscribing witnesses signed their names at the bottom of the first side and again at the top of the second side, following which was an important provision of the will. Held, that as one of the requisites prescribed by the statute for the formal execution of a will, i. e., that the attesting witnesses shall sign their names at the end thereof (2 R. S. 63, § 40, subd. 4), had not been complied with, probate of the instrument was properly denied ; and'that the refusal of the surrogate to hear proofs was not error.</p>

(¡Reported below, 24 Finn, 263.) The moving affidavits aver that on the 21st day of July, 1876, the relator, being a police officer, while assisting another officer in making an arrest, was assaulted by persons resisting the arrest, and injured. That he continued to perform duty until the 17th of May, 1877. That from the said 17th of May, 1877, until the 1st day of - September, 1877, he was unable to perform any duty.

■ (Reported below, 28 Hun, 285.) The complaint in this action, after alleging the marriage of the parties, and setting forth various ■ acts of cruelty and ill-treatment on the part of defendant toward the .plaintiff, asked judgment that defendant be required to pay plaintiff a sum certain for her maintenance and support, and also asked temporary allowance for alimony and counsel fees.

Cole, surrogate of the county of RocMand, setting aside a decree of E. A. Suifern, former surrogate of said county. (Reported below, 27 Hun, 78.) The facts appear sufficiently in the opinion.

<p>The defendant appeared herein by attorney ; issue was joined which was regularly brought on for trial on notice, and the defendant’s attorney not appearing, the trial proceeded as upon default. B., the original plaintiff, was examined as a witness. The default was, on application of defendant, set aside and a new trial granted. Upon the second trial, the minutes of the testimony of B. given on the first trial, he having died in the mean time, were offered in evidence and rejected on the ground that defendant had no opportunity to cross-examine the witness. Held error; that the evidence was competent, both at common law and under the Code of Civil Procedure (§ 830); and that as defendant had the power to appear and cross-examine his failure so to do was a waiver of that privilege.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, iu the first judicial department, entered upon an order made the first Monday of October, 1881, which affirmed a judgment in favor of defendant Smyth, entered upon a decision of the court on trial without a jury.</p> <p>This action was brought to determine the title to a deposit made by Clarinda P. Urner, plaintiff’s intestate, with defendant the Seamen’s Savings Bank of the city of Hew York. . The court found substantially the following facts:</p> <p>On the 28th of June, 1850, said Clarinda P. Timer, the mother of the defendant, Sarah J. Smyth (the said defendant then being a minor, and unmarried), opened an account with the said bank, and on that day deposited in said bank' the sum of $288, which account was headed:</p> <p>“ Clarinda P. Timer, in trust for Sarah J. Timer.”</p> <p>Said bank then duly issued its bank or pass-book with the following entry therein: “Clarinda P. Timer, in trust for Sarah J. Timer, in account with Seamen’s Bank for Savings.”</p> <p>On the 11th day of December, 1874, said intestate, having on hand $4,500, the proceeds of the sale of a house and lot, deposited the further sum of $2,000 with the said bank, which deposit was entered in said pass-book. She' at first intended to deposit the whole in the Bowery Savings Bank, but concluding not to risk the whole in that bank, made the deposit as stated and deposited the balance in the bank last named. Before said deposit the said Sarah J. Timer intermarried with one Alexander Smyth.</p> <p>It appeared that when the deposit in question was made she deposited in the same bank $25 in trust for a grand-daughter, opening this account also in her own name as trustee, and receiving a pass-book therefor. It also appeared that prior to the time of such deposit nearly all of the first deposit, with interest, had been drawn out by intestate, and that the balance, with the interest on the $2,000 up to the January preceding her death, was drawn out by her.</p>

<p>One passing along a sidewalk has a right to presume it to be safe, he is bound to no special care and cannot be charged with negligence for not being on his guard against an unlawful obstruction, or for not looking for it, although it is visible.</p> <p>Where a child is injured in consequence of such an obstruction, it is not a defense that the child was playing upon the street, instead of using it for the ordinary purposes of travel ; for children to play upon a sidewalk is not unlawful, wrong or negligent.</p> <p>In an action to recover damages for- injuries caused by falling into an uncovered area in the sidewalk in front of defendant’s premises, he claimed that the premises were, at the time of the accident, leased to and in the possession of one L. It was proved on the part of plaintiff that the purchases made by L. were charged to defendant. The latter as a witness, in his own behalf, was asked “ why were the goods charged to you ? ” This was objected to and excluded. Held no error.</p>

<p>These were appeals from judgments of the General Term of the Supreme Court in the third judicial department, entered upon orders made September 24, 1880, which affirmed judgments in favor of plaintiff, entered upon orders overruling demurrers to the complaints in the actions above entitled.</p> <p>These actions were brought by plaintiff as receiver of the Eagle Mowing and Beaping Machine Company, a manufacturing corporation organized under the General Manufacturing Act, to enforce the liability imposed by said act (§ 10) upon stockholders in favor of creditors.</p>

<p>When an illegitimate child has, by the subsequent marriage of his parents, become legitimate by virtue of the laws of the State, or country, where such marriage took place, and the parents were domiciled, it is thereafter legitimate everywhere, and entitled to all the rights flowing from that status, including the right to inherit.</p> <p>Plaintiff was born illegitimately in Wurtemburg, in 1845, where his parents then resided; they removed, with plaintiff, to the State of Pennsylvania, and his father there became a naturalized citizen. In 1853, while domiciled in said State, the parents were married. In 1857 a law was passed by the legislature of that State, legitimatizing children, born out of wedlock, of parents who shall thereafter marry, which act, by an act of 1858, was made applicable to all cases arising prior to 1857, save where some interest had become vested. In 1862 plaintiff removed, with his parents, to this State; his father thereafter became owner of certain real estate, and in 1875 died seized thereof, and intestate. In an action of ejectment held, that the provision of the Revised Statutes (1 R. S. 754, § 19) disinheriting illegitimate children did not apply ; and that plaintiff was entitled to inherit equally with the children of the deceased born in wedlock.</p>

<p>Where the guardian of an infant loans moneys belonging to his ward, receiving securities for the amount loaned, with lawful interest; but as an inducement to make the loan, receives a sum of money, as a bonus, for his own benefit, from the borrower, who pays the same with knowledge as to the title to the moneys loaned, this does not make the transaction an usurious loan. The guardian is not a lender of the trust fund, within the meaning attached to that term by our statutes, relating to usury.</p> <p>The circumstance that the guardian has given a bond for the faithful performance of his duties does not affect the character of the transaction or . of the securities so taken.</p>

<p>S., plaintiffs intestate, was fireman upon an engine drawing a train, “ No. 337,” going west, on a branch of defendant’s road, the business of which was prosecuted over a single track. The train was known as a " wild cat ” train; i. «., one running irregularly, without reference to schedule or the regular trains, and moving by special orders. A regular train, “ No. 50,” was due at Cayuga, going east, according to schedule, at 4:40 P. M„ and would leave at 4:45. Train “ 337 ” was then at Auburn, and at 4:46 the superintendent of the road telegraphed from Rochester to its conductor and engineer: " Wild cat to Cayuga regardless of No. 50; 12,” the numerals at the end meaning “ answer how understood.” The rule of defendant in regard to the movement of trains by telegraph required the order to be first copied by the operator at Auburn in an order book and repeated back to the dispatcher, and after receiving back a message “ O. K.,” said operator was required to copy on a blank for the conductor and engineer, who, after comparing it with the book and seeing it was correct, were required to sign their names in the book prefixed by “ 13,” meaning: “ We understand,” which numeral with the signatures the operator was required to transmit to the dispatcher, who, thereupon, was to repeat the order. All of this was done, and train “ 337,” according to such order, left Auburn. No communication was sent by the superintendent to the conductor or engineer of train “ 50 ” in regard to the movements of train “ 337," but at 4:10 he telegraphed to K., the operator at Cayuga, to hold “ No. 50” for orders, which he received and repeated back. K. said to the conductor of “ 50: ” “ Hold No. 50 for 61,” without exhibiting or delivering any message, and no rule or order of defendant required him to do so. There was a rule that “ whenever any agent or operator receives an order to hold any train * * he must carry out the order strictly.” “ 61 ” was a train going west ahead of “ 337;” it came in soon after, whereupon " 50 ” started out, and collided with “ 337,” and S. was injured. In an action to recover damages the court submitted to the jury the question whether “the defendant had omitted the doing of any thing which it ought reasonably to have done to prevent the casualty.” Held no error ; that having ordered " 337” to travel on the time of “50,” defendant was bound to exercise every reasonable precaution that the latter should not leave Cayuga before the arrival of the former ; and that its failure to communicate direct with the conductor and engineer of “50 ” presented a question for the jury.</p>

This action was brought by plaintiff individually and as executrix of the will of Lucy M. Harris, deceased, to recover rents alleged to be due under a lease of the interests of plaintiff and decedent in certain real estate to the defendant, which real estate was owned by the parties as tenants in common. The lease was executed under seal March 1, 1873, and defendant took possession under it.

This action was brought to recover the possession of certain personal property, consisting of a stock of millinery goods. It was originally brought against Nicholas H. Haynes, the present defendant’s intestate. Plaintiffs claimed title under two bills of sale executed by Mrs. Lucy A. Michelson. Defendant justified under a justice’s judgment against Mrs. Michelson, and a levy by virtue of an execution issued to him as constable upon said judgment.

<p>An official bond given by B., upon his appointment as cashier of a bank, was conditioned " that he shall honestly and faithfully discharge the duties of such cashier, rendering at all times his undivided care and services to said bank, and shall obey the orders and directions of the president and directors of said bank lawfully given, and shall at all times account for and pay over all moneys * * * belonging to said bank, and shall keep true and accurate books,” etc. The complaint in an action upon the bond, after averring specifically non-performance of each and all of the conditions alleged, that on the contrary thereof B. paid out the moneys of the bank fraudulently to various persons without any sufficient vouchers or security therefor, and fraudulently permitted various persons to overdraw their accounts without any security, and fraudulently altered and falsified the accounts and books of the bank so as to conceal such frauds, and has refused to pay. over to the president and directors large sums of money, to-wit : $100,000. Held, that these allegations were a sufficient compliance with the provision of the Revised Statutes (2 R. 8. 378, § 5), providing that in an action for the breach of a condition of a bond, other than for the payment of money, the “ declaration shall assign the specific breaches for which the action is brought; ” also that if insufficient no reason was thereby furnished for a dismissal of the complaint, as defendant could have applied by motion to have them made more definite and certain, or for a bill of particulars.</p> <p>The action was brought by the receiver of the bank who produced the bond. It appeared that B. was chosen cashier by resolution of the board of directors, passed January 17, 1869, and at the same time his bond was fixed at $30,000, with sureties “ to be approved by the board.” The amount stated was that of the bond in suit, which was dated January 30, 1869 ; it was executed by B. and six sureties, three of whom, including defendant’s testator, were directors of the bank, and was witnessed by the then teller of the bank, who on the same day proved its execution before a justice of the peace, who was also a director. B. thereupon entered upon the discharge of his duties and continued to act as cashier until January, 1877. No direct evidence was given that the bond was ever delivered to or that it was ever in possession of the bank, or that the sureties were formally approved. It appeared that in 1873, one of the sureties wrote to one of the directors expressing a wish no longer to be bondsman for B., and that this letter was produced and read at the next meeting of the board of directors. Held, that it was a fair and legal inference from the facts that the bond was at or about its date delivered to and accepted by the bank ; and that an express approval in writing was not necessary to make the bond binding.</p> <p>B. was teller of the bank before he was appointed cashier. It was claimed that before such appointment, the directors were aware of certain misconduct on his part as teller which they concealed from the sureties. The misconduct complained of did not affect the moral character or official fidelity of B. Held, that the objection was untenable ; that mere irregularities or omissions of duty, even if known to the directors, furnished no ground for a defense.</p> <p>Before a bond in such a case can be avoided, fraud and bad faith, which has misled the surety to his damage, must be brought home to the obligee by clear and decisive evidence.</p> <p>It appeared that the predecessor of B. in the office of cashier was also a defaulter. Held, that concealment of this fact from the sureties did not affect their liability as it in no way increased or related to the obligations assumed.</p> <p>It was claimed that by the" notice above referred to given by one of the sureties, of his desire to be released, he and the other sureties were relieved from liability for subsequent defaults by B. The notice was communicated to the board of directors November 8,1873. It appeared that before the close of that month, the defalcation of B. amounted to more than the penalty of the bond. Held, that whatever might be the effect of such a notice, it could not operate immediately, but the bank had reasonable time, thereafter, to act, to notify the cashier and procure a new bond ; and, therefore, that the notice did not affect the liability of the sureties.</p> <p>It was claimed that defendant’s testator was released, because of misconduct and embezzlement of B. in 1874. It did not appear that the directors had any knowledge that the action of B. complained of was fraudulent or dishonest. Held, that the objection was untenable ; that if the directors were guilty of any negligence in not learning of the misconduct of B., defendant’s testator, as one of them, was equally guilty with the others.</p>

<p>In an action upon a promissory note, given February 21,1871, for $1,000, by D., defendant’s testator, to the, firm of M. Bros., plaintiff gave evidence tending to show that the consideration of the note was an agreement on the part of said firm to take up and suspend prosecution, for three months, upon a note, held by them, against one Gr. M., who had shortly before become an involuntary bankrupt, and' was then being prosecuted by some of his creditors. Held, that these facts furnished a good consideration for the note in suit.</p> <p>The defense was, among other things, that the note was merely an accommodation one. P. M., son of G. M., was called as a witness, by defendant, to prove that defense. Upon cross-examination plaintiff was permitted to prove, by him, under objection and exception, a bill of sale, executed to him in January, 1871, by his father, of four hundred tons of coal, and a chattel mortgage, executed by himself to D.-, purporting to cover the personal property, aside from the coal, formerly used by G. M. in carrying on the coal business, and on the premises occupied by him for that business. Held no error; that the evidence was proper, as showing an intent or motive and so as affecting the credibility of the witness ; also as showing the relation of the parties ; i. e., that D. had such an interest in the pecuniary condition of G. M. as would naturally induce him to give his own note for the debt of the latter.</p> <p>Defendant put in evidence a deposition, made before a register in bankruptcy, to prove a debt, in bankruptcy, against Gr. M. The deposition was to the effect that on March 13,1871, before the register, came J. M. and Gr. M., of the firm of M. Bros., and made oath that the person against whom the petition in bankruptcy had been filed was before such filing and still is “indebted to this deponent,” upon a promissory note of $1,000, given for money loaned, and that for said sum deponent had not “ had or received any manner of satisfaction or security whatever.” The deposition was1 signed by J. M., alone, and was certified by the register to have been resworn to June 5,1871. A copy of the note was attached, which corresponded with the note, to extend and secure which the note in suit was alleged to have been given. Defendant thereupon asked to have the complaint dismissed on the' ground of failure of consideration, as the note of Gr. M. was proved in bankruptcy within the three months. The motion was denied. Held no error. Wrat, it was not conclusive that the two notes were identical ; that no estoppel was worked as against the firm by the fact that a member thereof proved, as his own debt, a note once held by the firm. Second,, it would seem, from the fact that the deposition was resworn to, after the expiration of the three months, the former verification was defective, and no valid proceedings were instituted within the three months. Third, that proof of the debt in bankruptcy would not have been such a proceeding as would have been a breach of the agreement to forbear.</p> <p>The ex parte proof in bankruptcy is not such an adjudication as to the existence of a fact as to legally preclude the person making it from afterward explaining or contradicting the statements contained therein, at least as against one not in a legal sense a party.</p> <p>Costs were imposed upon defendant, payable out of the estate, because of refusal, on his part, to refer. Held, that as defendant was not injured, he could not be heard to complain of the absence of the certificate of the judge who tried the cause required by the Code of Civil Procedure (§ 1836).</p>

This action was brought by plaintiff as creditor of the Rochester Iron Manufacturing Company, a corporation organized under the General Manufacturing Act, on his own behalf and that of other creditors choosing to come in, against the stockholders of said corporation, to enforce the liability for the debt of said corporation imposed upon stockholders where the .whole capital stock has not been paid in. The facts so far as material are stated in the opinion.

<p>Upon motion for such substitution the plaintiff may not be heard to object that notice of the motion was not served upon the officer who made the levy, as he does not represent that officer.</p> <p>It seems that the motion being made for the benefit of the officer it is to be presumed that he has notice; and, when he does not object, that he assents to the proceeding.</p> <p>The effect of said provision is to make the obligors, when substituted,liable in place of the officer and the cause of action is thereupon against them.</p> <p>The legislature has power to make such provision.</p> <p>The said provision includes the liability of the officer for acts incidental to the levy and forming part of the transaction — for instance, the ejecting of the plaintiff from, and keeping him out of, the premises wherein the property was when levied upon.</p> <p>The amount claimed in such an action was $2,000; the undertaking was for $1,000. Held, that it was a matter in the discretion of the court below whether to require additional security and that the difference did not authorize a refusal of a motion to substitute the sureties.</p>

(Reported below, 24 Hun, 401.) This action was brought upon a promissory note dated 29th January, 1866, for $1,000, executed and delivered by the defendant to Job Gardner, and by the latter transferred to the plaintiff.

Appeal by the relator from an order of the General Term of the Supreme Court, in the third judicial department, made September 23, 1882, which affirmed two orders of Special Term, one of which denied the motion of the relator herein for a peremptory mandamus, and the other denied relator’s motion to modify or amend the first order so as to permit an alternative writ to issue.

<p>H., who was the consignee and agent of a manufacturing corporation for the sale of its manufactures, under an agreement by which he was to make advances to the company on goods consigned, and reimburse himself out of proceeds of sales, sold certain of the goods to defendant in his own name, upon which he had made advances to more than their value. In an action to recover the purchase-price, defendants sought to set. off an account against the company, which had become insolvent, for goods sold by them to it. Held, that defendants were not entitled to the" set-off. After defendants had sold to the corporation a portion of the goods for which the set-off was claimed they requested H. to consent that the purchases of the company be -charged to his account ; this he refused, but stated that when defendants’ account should fall due, he would accept the company’s draft for the amount. Held, that this could not be construed as an agreement to allow the set-off; that it was simply a voluntary promise to accept, and if enforceable on the ground that goods were delivered on the faith of it, could be enforced only according to its terms, and as defendants never obtained or attempted to obtain such a draft, defendants had acquired no rights under it,</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 1, 1880, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at a Special Term and dismissed the complaint. (Reported below, 21 Hun, 537.)</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>• Appeal from order of the General Term of the Supreme Court, in the third judicial department, made September 3, 1878, which reversed a judgment in favor of plaintiff, entered upon the report of a referee, and granted a new trial. (Reported below, 16 Hun, 28.)</p> <p>This action was brought originally against Apollos 0. Edger-ton, to recover back moneys paid upon a contract for the sale of lands. Edgerton died during the pendency of the appeal to this court, and the present defendant, his executrix, was substituted. The following facts appeared and were substantially found.</p> <p>On the 2d day of February, 1867, one James R. Shaver entered into a contract with one Kilmer to sell him lots Hos. 10 and 11 in great lot Ho. 37 in Hardenburgh Patent, each lot consisting of one hundred and two acres of land, for the sum of $1,500, payable in installments, with annual interest; and when the whole sum of $1,500, with interest, should be paid, Shaver agreed to execute and deliver to Kilmer a quitclaim deed of lot Ho. 10, and “a good and sufficient deed” of lot Ho. 11. On the 1st day of March, 1867, Kilmer paid $200, as provided in the contract, and took possession of the lands therein mentioned. At the time of making that contract, and for many years prior thereto, one Charles Knapp was the owner in fee-simple of lot Ho. 11. On the 24th day of June, 1859, he entered into a written contract with one Townsend Shaver, by which he agreed to sell to him that lot for $600, payable $100 annually. Under that contract Shaver entered into possession of the lot, but he did not pay any part of the purchase-price. On the 5th day of May, 1864, Townsend Shaver entered into a written contract with James R. Shaver, whereby he agreed to sell lot Ho. 11 to him for the sum of $1,097.34, payable in installments. James R. Shaver entered into possession of the lot under that contract, and continued to occupy it until he made the above-mentioned contract with Kilmer in February, 1867. There is no evidence that James R. Shaver ever made any payments upon his contract, and he had no other title to or interest in lot Ho. 11 than such as was acquired by the contracts of purchase just mentioned. At the time of the contract between Townsend Shaver and James B. Shaver, Townsend was in default upon his contract with Knapp. On the 11th day of April, 1867, James B. Shaver, for a valuable consideration, sold and assigned his contract with Kilmer, by a written assignment, to said Apollos C. Edgerton, of which the following is a copy: “ For value received, I hereby sell, assign, transfer and set over to A. 0.-Edgerton all my interest in the within contract for his own use and benefit,” and at the same time he delivered the contract,with the assignment, to Edgerton, who took the assignment in good faith, and paid full value therefor. Afterward Edger-ton collected from Kilmer the sum of $200. On the 20th day of April after, Kilmer sold and assigned his interest in the contract to ohe Hodge for a good and valuable consideration, and authorized and empowered him to receive the deed covenanted to be given in the contract, and delivered the' assignment and contract to him. Hodge thereafter paid Edgerton at different times installments in all making up the-full amount due under the contract, the last payment for $107 being made on the 10th day of June, 1874. All the payments made by Kilmer or Hodge, except the last, were made by them and received by Edgerton in ignorance of the fact that Knapp held the title to lot Ho. 11, and under the mutual supposition and belief that at the time James B. Shaver entered into the contract with Kilmer he had a good and perfect title to all the lands described in the contract. At the time of the last payment, both Hodge and Edgerton knew that Knapp had the title to lot Ho. 11. At the time of making the last payment Hodge demanded of Edgerton a deed of the premises in pursuance of the contract, which he refused to give, and Hodge then demanded back the money paid by him to Edgerton on the contract, and he refused to pay the same or any part thereof. Soon after Edgerton took the assignment of the contract from Shaver he notified Kilmer that he had the contract, and that payments must be made to him. Kilmer assented to the transfer and proceeded to make the payments; and this Hodge knew before he took the assignment from Kilmer. At the time of the assignment of the contract from Kilmer to Hodge, Kilmer agreed to pay Hodge $200 and the amount that Hodge should pay, and he, Kilmer, was to continue in possession of all of the premises, which he did until some time in 187,3, when he abandoned the same, and he did not pay Hodge any amount whatever. During the time he occupied the premises, however, he built a house on lot Ho. 11. After he abandoned the premises they were occupied by one Bryden, under Hodge, about one year, and until the spring of 1874. On the 15th day of April, 1874, Hodge entered into a written contract with Wilson and Keeler, by which he agreed to sell them both the lots Hos. 10 and 11 for the sum of $1,700, payable in installments. Wilson and Keeler took possession under the contract, and continued to occupy and possessed? them until the fall of 1874, when they agreed with Hodge to abandon the premises, and did abandon them, and they remained vacant and unoccupied until after the commencement of this action, which was the 1st of March, 1875. Soon after the above arrangement between Hodge and Wilson and Keeler, Hodge notified Edgerton that the premises had been abandoned, and offered to surrender them to him, and to cancel his contract, and again demanded a deed of the premises or the payment of the money paid by him to Edgerton on the contract, with each and all of which Edgerton refused to comply. On the 17th of December, 1874, Hodge, for a valuable consideration, sold and assigned to the plaintiff in this action the contract between James JEt. Shaver and Kilmer, and all causes of action, claims or demands, whether at law or in equity, against Edgerton for damages arising from the breach of the contract, the receipt of moneys, thereon or failure to execute a deed in pursuance thereof. On the 27th of January, 1875, Kilmer, for a good and valuable consideration, by written assignment, sold and assigned to the plaintiff all' causes of action, claims and demands against Edgerton growing out of the receipt of the moneys thereon by Edgerton.</p>

. , This action was brought to foreclose a mortgage executed by defendants David Donald and Hamilton Waddell. Subsequent to the giving of the mortgage, the mortgagors conveyed the premises, and the title was, at the time of the commencement of the action, in defendant Hugh McOrum, who claimed under various mesne conveyances, all of which were in terms subject to the mortgage.

General Term of the Supreme Court, in the third judicial department, entered upon an order made January 27, 1882, which affirmed a judgment in favor of plaintiffs, entered upon a verdict. The nature of the action and the material facts are stated in the opinion.

The road was closed by the commissioners of Central park under chapter 697, Laws of 1867, and the damages to the owners of land on said road were assessed upon the property benefited.

<p>The will of V. contained a bequest to her executors of $30,000 in trust “ to pay over the net income of $10,000, part of such sum ” to each of three unmarried nieces of the testatrix, who were named, “ so long as each remains single ; upon the marriage of either to pay over to her $1,000 of the principal of which she has enjoyed the income,” and to pay over the residue of the $10,000 to the surviving nephews and nieces of the testatrix. Held, that the provision did not involve an unlawful suspension of the power of alienation and was valid ; that each legatee was interested only in $10,000 of the trust fund, and as to each third the trust remained only for the life of the legatee, and when extinguished by her death or previous marriage the title to that portion of the bequest would immediately vest.</p> <p>The residuary personal estate of the testatrix she gave to her nephews and nieces, the " sons and daughters ” of her brother J., and of her sister E., "to be divided equally between them,” and in case of the death of any such nephew or niece before the testatrix it was provided that “ what would have been his or her share if living, I give to his or her issue, if any, equally. If there be none then to the survivors of my last aforesaid nephews and nieces and the issue of those deceased per stirpes and not per capita.” At the time of the execution of the will and at the death of the testatrix her brother J. had two children, a son and a daughter, and her sister E. had nine children living. Held, that in the absence of any thing in other portions of the will showing a contrary intent, said nephews and nieces took per capita, not per stirpes.</p> <p>By a codicil the testatrix gave to the children of her brother J., “ as a part of their share of such residuary bequest,” a bond and mortgage executed to the testatrix by their father. Held, that this was not indicative of an intention that said children should take per stirpes.</p> <p>Also held, that the amount due upon the mortgage was to be deducted from the shares of the children of J.</p> <p>As incident to the duty imposed upon surrogates by the Code of Civil Procedure (§§ 2473, 2481, 2743), to settle the accounts of executors and</p> <p>/ to decree distribution of the estate remaining in their hands “ to the z persons entitled, according to their respective rights,” a surrogate has jurisdiction to construe a will, so far as is necessary, to determine to whom legacies shall be paid.</p>

. Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, entered upon an order made April 3, 1882, which affirmed & judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order denying a motion for a new trial. This was an action of ejectment to recover possession of certain lands in the city of New York. The material facts are stated in the opinion.

This action was brought to obtain a construction of the will of John P. Beaumont, deceased. The clause of the will in question is as follows: “ I leave to my beloved wife, Mary Ann, all my property, of whatever kind, including eight bonds of one thousand dollars each, and certificate of twenty shares of the stock of the North River Bank in New York, contained in a tin box deposited by me in said bank, together with the silverware contained therein.

Appeal by defendant Edward Eoberts from a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 27, 1882, which affirmed a judgment in favor of plaintiffs, entered upon decision of the court on trial at Special Term. The nature of the action and the material facts are stated in the opinion.

This action was brought upon a policy of insurance issued by defendant to plaintiff’s testator, insuring his dwelling-house against loss by fire or lightning. The material facts are stated in the opinion.

This action was brought to compel defendant to declare and pay certain dividends alleged to be due and unpaid upon certain preferred and guaranteed stock issued originally by the Michigan Southern and Northern Indiana Railroad Company, which corporation was, in 1869, together with other railway corporations, consolidated and merged in the corporation defendant, which corporation assumed all the obligations and liabilities existing against the original companies.

This action was brought to recover damages for alleged negligence causing the death of Judson W. Mann, plaintiff’s intestate. Mann was an engineer in defendant’s employ. While running the engine drawing a passenger train, he was killed by a collision of his train, with freight cars standing on the track at Oneonta, where a freight train was being made up. The facts appearing as to the circumstances of the accident, are stated substantially in the opinion.

These are cross-appeals from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 30, 1882, which modified and affirmed as modified a decree of the surrogate of the county of New York, on the final accounting of the executors of the will of Richard Warren Weston, deceased. (See mem. of decision below, 27 Hun, 455.) The testator died in May, 1873.

(Reported below, 27 Hun, 130.) In drawings the instrument in question, a printed blank was used, folded in the middle, like an ordinary sheet of legal cap; at the top of the first page was a printed heading; the rest of that page, the whole of the second page and part of the third page was left blank. This blank was all filled with wilting; just preceding the printed formal termination on the third page was the following: “ 13th.

The complaint alleged in substance that on the 23d of August, 1866, James Horner and James Ludlum, being partners in business, made and executed in Hew York, to Erastus Corning, since deceased, their bond and mortgage on certain lands in Hew Jersey belonging to their partnership, to secure a loan to said partnership from said Corning of $68,915, and that the transaction was usurious; that afterward said Corning died and the said bond and mortgage came by transfer to Erastus…

Also, appeal from order of said General Term, made at the May term, 1882, affirming an order of Special Term, denying a motion to change the place of trial from the county of Kings to the county of New York. (Reported below, on appeal from order changing place of trial, 27 Hun, 61.) This action was brought to recover damages for the alleged conversion of certain stocks. The material facts are stated in the opinion.

<p>Where a will executed by one having full testamentary capacity, and duly admitted to probate, contained a legacy to the draughtsman, an attorney, who, at the time of the execution of the will, was, and for a long time previous had been, the counsel of the testator, held, that this alone did not raise a presumption, in aid of one seeking to overthrow the will, that the influence of the attorney was unduly exercised, nor did it, inlihe absence of evidence, warrant a presumption that the intention of the testator was improperly, much less fraudulently, controlled ; that it was for the plaintiff, therefore, in an action brought to set aside the will to give some other evidence tending to show fraud or undue influence.</p> <p>A misdirection by the court upon the question of the burden of proof, upon the trial by jury of specific questions of fact in such an action, may, “ in the discretion of the court which reviews it, be disregarded, if it is of opinion, that substantial justice does not require that a new trial should be granted.” (Code of Civil Procedure, § 1003.)</p> <p>A court of equity has no jurisdiction to set aside a will of personal property, which has been duly admitted to probate, because of fraud or undue influence; the probate is conclusive. (3 R. S. 61, § 39.)</p> <p>Nor can executors, as to a gift to them, in a will so admitted to probate, be charged by a court of equity, as trustees of the next of kin, on the ground that the gift was obtained by fraud.</p>

<p>Lands once taken for a public use, pursuant to law, under tlie right of eminent domain, cannot, under general laws, and without special authority from the legislature, be appropriated, by proceedings in invitum, to a different public use.</p> <p>Where a railroad corporation, by proceedings under the General Railroad Act (§ 17, chap. 283, Laws of 1854), acquired title to lands belonging to a town for depot purposes, in which proceedings the town appeared and contested, putting in issue the necessity of the taking of all the lands sought to be condemned, held, that it was not open for the officials of the town to question, collaterally, the propriety of the condemnation, and they could not, without special legislative authority, appropriate a portion of the land so taken for a public highway.</p> <p>In an action by the railroad corporation to restrain the highway commissioners of the town from opening a highway over the lands so acquired it appeared that plaintiff’s railroad was constructed simply as an excursion road, for the conveyance of passengers to the sea beach. The land acquired consisted of several acres lying at the terminus of the railroad, on the sea shore. The corporation erected thereon a depot, waiting-room, car-houses, restaurant, track yard and other structures used in the actual operation of the road, leaving a space between the depot building and the beach of about seven hundred feet in length, across which the highway was sought to be laid out; this was occupied by railroad tracks running to high-water mark, plank walks for passengers, and by various structures for their accommodation, convenience and pleasure. During the summer season plaintiff conveys, daily, from ten to fifteen thousand people each way over its road, and runs about one hundred and twenty passenger trains per day. It also appeared that the strip of land was, at times, insufficient for the use of passengers, and'was so crowded with people that it was difficult to walk across it; that the proposed highway would deprive the plaintiff of a large part of this area, and would expose its passengers, a large portion of whom were women and children, to danger from passing vehicles. Held, that a finding that the laying out of the highway would not interfere with the property occupied by the company for railroad purposes, or cause damage to its business, was not j ustified ; that the erection on the land of decorations and structures for amusement, although they might be deemed superfluous, was not an abandonment by the company of the uses for which it acquired the premises.</p> <p>It seems that if the purposes for which the structures upon the land were used were so foreign to the purpose for which it was acquired, or so reprehensible as to produce a forfeiture of the rights of the company, it did not lie with the highway commissioners to enforce it.</p> <p>The authority given by the General Railroad Act (§ 1, chap. 63, Laws of 1853) to construct highways across railroad tracks does not extend to lands taken for depot purposes.</p>

This action was brought against defendants as executors, etc., of Stephen B. Adee, deceased, upon an undertaking executed by said testator. The case is reported upon a former appeal in 84 IT. Y. 222.

' Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 13, 1881, which affirmed an assessment made by the defendants, as the board of trustees of the village of New Rochelle, against the relator, upon personal property, and quashed the writ of certiorari by which said assessment was brought up for review. The material facts are stated in the opinion.

<p>The statutes in relation to the assessment of taxes in the city and county of New York (Chap. 302, Laws of 1859 ; § 4, chap. 410, Laws of 1867 ; § 112, chap. 335, Laws of 1873), confer no power upon the commissioners of taxes and assessments to change the record of assessments after the first day of June in any year.</p> <p>It seems that none of the municipal authorities have any judicial duty to perform after that date, in relation to the assessment of property, or the collection of taxes, save the board of supervisors, and they only when it appears “ under oath or affirmation that the party aggrieved was unable to attend within the period prescribed for the correction of taxes by reason of sickness or absence from the city ” (§ 10, chap. 302, Laws of 1859).</p> <p>As, therefore, the act of 1880 (Chap. 542, Laws of 1880), providing for the taxation of certain corporations, companies and associations, was not passed until June first of that year, and as it contains no provisions giv- . ing it a retroactive effect, or providing for the contingency, it imposed no duty upon said commissioners, so far as the assessment and collection of taxes for that year were concerned.</p> <p>The provision of the act of 1880 (§ 1, chap. 269, Laws of 1880) in regard to the review and correction of assessments by certiorari confers upon the court the power of review and correction, only when it appears by the return to the writ or the evidence taken thereunder, “ that the assessment complained of is illegal, erroneous or unequal.” It does not authorize a review where it appears that the assessment in question was made in accordance with the statutes then in force, and in the due performance of the duty then obligatory upon the assessors.</p> <p>Where, therefore, it appeared by the return to a writ of certiora/ri to review an assessment upon the personal property of the relator, which was alleged to be illegal, because of the exemption contained in the act of 1880 (Chap. 542, Laws of 1880) that the assessment was made before May 1, 1880, in accordance with the then existing law ; held, that the . assessment was properly affirmed,</p>

(Reported below, 27 Hun, 335.) This action was brought against defendants as the executors of, and against defendant Stebbins as trustee under, the will of Russell F. Hicks, deceased, to have a legacy of $5,000 given by said will to A. Hammond Hicks, declared a lien on the lands devised by said will to said trustee, and paid out of the proceeds thereof.

<p>Appeal from order of the General Term of the Supreme Court, in the third judicial department, made December 16, 1882, which affirmed an order of Special Term denying an application on the part of the relator for a peremptory mandamus to compel defendant as comptroller of the city of Troy to countersign a warrant drawn by John Magill, S. A. Craig and Elisha W. Hydorn, as police commissioners of said city, in favor of relator, for supplies purchased by and furnished to the board of police commissioners.</p> <p>The facts so far as material are stated in the opinion.</p>