Volume 97 — New York Reports

The nature of the action and the material facts are stated in the opinion. The plaintiff’s testimony as to the original conversation between himself and the defendant, if true, established an agreement for a partnership venture.

This action was brought originally by Francis B. Wallace and John F. Phillips composing the firm of F. B. Wallace & Co. Phillips having died during the pendency of the action it was continued by Wallace as surviving partner. The latter died after judgment and pending the appeal, and the present plaintiff, his executrix, was substituted as plaintiff.

Appeals from certain portions of a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made July 11, 1883, which modified a decree of the surrogate of the'county of ¡New York, rendered upon probate of the will of Michael Kuhn, deceased, so far as the same gave a judicial construction to said will. (¡Reported below, 28 Hun, 573.) The following is a copy of the provision of the will in question: “ Second.

The board of commissioners of the department of public parks of the city of New York had no jurisdiction in the premises. (Maxmillian v. Mayor, 62 N. Y. 160; Ham v. Mayor, 70 id. 463.) The consent of the department of public parks to the location and erection of a bridge across the Harlem was an unlawful assumption of control over a navigable river, which control is exclusively in the State.

The case is reported upon a former appeal in 89 N. Y. 484. This action was originally brought against William Phelps and Martin E. Kingman, composing the firm of Phelps &. Kingman, upon an instrument executed by that firm in 1861 to the City Bank of Poughkeepsie, guaranteeing the payment of any sum not exceeding $5,000, which one Woodruff might require of the bank for legitimate business purposes. ° The said firm was dissolved in 1872.

This action was brought upon a verbal agreement, which is set forth in the opinion; the material facts are also therein stated. To give effect to mutual contracts, entity of time as to their commencement, so as to bind both parties from the same point of time, is essential. (Jenkins v. U. T. Co., 1 Cai.

The nature of the action and the material facts are stated in the opinion. The burden of proof was upon plaintiff to show affirmatively that he had a good title. (Wilson v. Holden, 16 Abb.

Rufus B. Cowing presiding, convicting defendant William Conroy of the crime of murder in the first degree. The facts will be found in the opinions of the General Term, ante, p. 247.

The nature of the action and the material facts are stated in the opinion. The mortgage in suit, being given for Jason Garlock by defendant Horace Garlock, and there being a valid agreement between them that the former should pay it in exoneration of the latter and his property, and plaintiff having knowledge of this relation and agreement, Horace Garlock was vested with the rights of a surety, and plaintiff was bound to observe the relation.

<p>Plaintiff shipped two horses by defendant’s road under a contract by which he released the company from liability for damages resulting from the negligence of its servants or which should be occasioned by the insecurity of its cars. The horses were transported in a grain car, which was out of repair and, while sufficient for the use for which it was intended, unsafe for the transportation of live stock. In consequence of such defect one of the horses was injured. In an action to recover damages, it did not appear but that other safe and secure cars were provided by defendant and were on hand ready for use, so that the injury might have been caused by carelessness on the part of its servants in selecting an insecure car. Held, that the only negligence shown was that of defendant’s servants, from the consequences of which it was released by the contract; and that plaintiff was not entitled to recover.</p> <p>It seems that the language of such a release, where it is included in the same clause and connected with releases from the consequences of other causes of injury which could only occur during the process of shipment and transportation, is satisfied by limiting it to the negligence of defendant’s servants in and about the transportation, and does not extend to a negligent omission to furnish proper cars.</p>

This action was trespass. The complaint alleged the levying upon and sale of a lathe, the property of plaintiff, by defendant Bowe, as sheriff, by virtue of an alleged execution against one Carpenter, issued to him by the other defendants, and under their direction.. Plaintiffs claimed title under a chattel mortgage executed by Carpenter, and a foreclosure and sale thereunder. The material facts appear in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made at the May term, 1883, which affirmed a judgment of Special Term dismissing a writ of certiorari, brought to review the proceedings of the assessors of -the town of Mt. Morris, in entering upon their assessment-roll the real estate and property of the relator.</p> <p>The relator is a corporation organized under the statutes providing for the incorporation of water-works companies, and is located in the village of Mt. Morris. It had entered into a contract with said village, the substance of which, so far as material, is set forth in the opinion.</p> <p>By virtue of the possession, control and absolute use which, under the contract, the village has of the water-works, it has made this system of water-works one of the means or agencies of government during the continuance of the contract, and the operation of this means or agency cannot be taxed or impeded by any civil power. (City of Rochester v. Town of Rush, 80 N. Y. 303; Leonard v. City of Brooklyn, 71 id. 498; Darlington v. City of N. Y., 31 id. 139; Louisville v. Commonwealth, 1 Duvall, 295; Holliday v. Frisbee, 15 Cal. 530; Davenport v. Ins. Co., 17 Iowa, 276; New Orleans v. Ins. Co., 23 La. Ann. 1.) The question of exemption turns not upon the ownership of any property, but upon the right to its use by the government in the discharge of a legitimate governmental function, whether this right to so use it is acquired by ownership or contract. (Cooley on Tax. 57-74; 2 Dill., § 615 a; Collector v. Day, 11 Wall. 127; McCulloch v. State, 4 Wheat. 316, 318; Osborne v. U. S. Bk., 9 id. 738; People v. Com'rs, 23 N. Y. 192-204; City of Rochester v. Rush, 80 id. 308; Leonard v. Reynolds, 7 Hun, 73; W. U. Tel. Co. v. State, 15 Otto, 460, 466; Sec'd Nat. Bk. v. Caldwell, 13 Fed. Rep. 429; 27 Alb. L. J. 99.) The operation of the company is wholly public, and the service to the village is the only business which it is capable of performing. (Darlington v. City, 31 N. Y. 204; 80 id. 308, 309.)</p> <p>All lands and all personal estate, whether owned by individuals or corporations, are liable to taxation, subject to certain specified exemptions. (1 R. S. 387, § 1; People, ex rel. M. F. Ins. Co., v. Com'rs, 76 N. Y. 73.) The fact that the water-works company is used by the village as an agency in the performance of a municipal duty establishes no such immunity from taxation as the relator demands. (McCulloch v. State, 4 Wheat. 436; W. U. Tel. Co., v. Texas, 27 Alb. L. J. 229.)</p>

The nature of the action and the material facts are stated in the opinion. Defendant was not liable foy the negligence of the driver of the team; the relation of master and servant did not exist between them. (McMullen v. Hoyt, 2 Daly, 275; Boniface v. Relyea, 5 Abb. [N. S.] 259, 263; Blake v. Ferris, 5 N. Y. 48; Mulligan v. Wedge, 13 Ad. & El. 737; Powles v. Hudson, 36 Eng.

(Reported below, 27 Hun, 128.) The nature of the action and the material facts are stated in the opinion.

This action was brought to have an assessment for a local improvement upon certain lands of plaintiffs in the city of Buffalo, and a sale thereunder adjudged illegal and void. The facts so far as material to the questions discussed are stated in the opinion. In order to maintain their action plaintiffs were required to prove, affirmatively, that there was a cloud to remove.

This action was brought hy plaintiff, a minister of the Methodist Episcopal church, to recover an alleged balance of salary due him. Plaintiff, pursiiant to an appointment by the general conference of said church, had charge of defendant’s church edifice and congregation as minister, and discharged the duties of that office for the years 1873 and 1874. Plaintiff testified that at a quarterly conference of the church a committee was appointed to fix the amount of his salary.

<p>Appeal by defendant Elsie Ryland from a judgment of the General Term in the First Department, June, 1883, affirming a judgment of the court of General Sessions of New York, Hon. Frederick Smyth, Recorder, presiding, of May 18, 1882, of conviction of forgery in the third degree.</p> <p>The facts together with points of counsel are given upon the appeal to the General Term. 1 JV. T. Crim. Rep. 123.</p>

The nature of the action and the material facts are stated in the opinion. The ease is reported on a former appeal in 69 H. Y. 148. It is absolutely necessary for the formation of a limited partnership that the amount of capital contributed by the special partner shall have been actually paid in cash at or before the filing and record of the certificate and affidavit required by the statute.

Appeal by Willard Van Houter, the relator, from an order of the General Term of the Supreme Court in the Fourth Department, of March 31, 1884. The defendant was indicted in the Tompkins county Oyer and Terminer, November 24, 1882, for keeping a bawdy house from June 12, 1882, to November 22, 1882, at Ithaca, N. Y. He was arraigned, tried and convicted at the Court of. Sessions of Tompkins county, 'Hon. Mabous Lyon, presiding, on October 11, 1883.

(Reported below, 29 Hun, 529.) On the 7th day of January, 1882, John Dunn made a general assignment for the benefit of his creditors, to John Dorsey, Jr., his book-keeper and clerk, who took possession of the assigned property, consisting among other things of a malt-house in which were eighteen to twenty thousand .bushels of malt in bulk.

<p>Defendants, Hal],Hicoll and Q-ranbery, as parties of the first part, entered into a contract with defendant, the U. S. E. Co,, which recited that the parties of the first part contemplated assuming control of said company, when,if ever, they should be satisfied that its business was a profitable one, and that it was expedient some arrangement should be made whereby that question might be determined; in consideration whereof and of the mutual covenants and agreements it was agreed that the parties of the first part, to enable the company to fill its orders, for goods manufactured by the company, should make' advances upon assignment of such orders as they should approve ; said parties of the first part to collect each of the orders so assigned, and out of the proceeds retain the’sum advanced thereon with interest and a proportion of the profits made by the company, the same to be not less then ten per cent of the face of the order. The company also executed to H., N. and Q. a chattel mortgage upon its property to secure such advances. In an action to recover for goods sold to . the company, held, that the contract did not constitute a copartnership between the parties either inter sese or as to third persons.</p> <p>Where a party is only interested in the profits of a business as a means of compensation for services rendered or for money advanced, he is not a partner.</p> <p>Also held, that acts and declarations of H., H. and G., consisting of efforts on their part to place the company in a sound financial condition, giving directions to its employes, seeking to obtain orders for it, and to establish its credit, were not inconsistent with the purpose of the agreement and did not bind them as partners.</p> <p>It was proved upon the trial that certain representations were made by said defendants to plaintiffs as to the responsibility of the company and their obligation to pay its debts. Held,, the most that could be claimed therefrom was that thereby defendants made a contract of guaranty which, as it was not reduced to writing, was void under the statute of frauds.</p> <p>A witness for plaintiff testified that there was a sign upon the factory of the company which read •' Hall, Hi coll and Granbery’s Factory, Top Floor.” There was no proof that plaintiffs ever saw or knew of the sign, or that any reliance was placed upon it when their debt was contracted. Held, that this testimony was insufficient to authorize a recovery against said defendants.</p> <p>So, also held, as to declarations of one of the defendants to customers referring to the factory as their own and speaking of its work as work they were doing, in the absence of evidence that it was 'known to or relied upon by plaintiffs when they sold the goods.</p>

Term of the Supreme Court, in the first judicial department, entered upon an order made March 22, 1882, which affirmed a judgment in favor of defendant entered upon a verdict. This action was brought to recover $75,000 alleged to have been loaned by plaintiff to defendant. Defendant’s answer averred in substance that the loan was not made to him but to Kimball & Co. for whom he was acting as broker.

Appeal by defendant Charles I). Leverich from a judgment of the General Term of the Superior Court of the city of New York, entered upon an order made April 3, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict. The nature of the action and the material facts are stated in the opinion.

This was an action upon a policy of fire insurance. The material facts are stated in the opinion. The parties to a contract may provide for a shorter time to commence actions thereon than that fixed by statute. (Wilkinson v. F. N. F. Ins. Co., 72 N. Y. 499.) A civil action can only be commenced under the Code by service of a summons, or by what is there stated to be equivalent to such service, i. e., a voluntary appearance of the defendant.

The nature of the action and the material facts are stated in the opinion. It was error to refuse to allow the defendants to give evidence of their counter-claim for the plaintiff’s breach of the contract. (Code, § 501; Brown v. Buckingham, 11 Abb. Pr. 387; Currie v. Cowles, 6 Bosw. 452.) The defendants’ alleged counter-claim was properly disallowed. The cause of action was for the wrongful detention of property, not its conversion.

<p>The office of a writ of certiorari, directed to assessors, is simply to review their action; and, if it appears by the facts conceded on return to the writ that their determination is illegal, a reversal may not be prevented by suggesting on the hearing on return to the writ, that a question, not raised, might have been raised before them which would have justified a decision against the relator.</p> <p>It seems that under the provision of the charter of the city of Buffalo (§ 17, title 9, chap. 519, Laws of 1870), which enacts that “ when the city shall alter the recorded grade of any street * * * the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration,” the limitation does not begin to run at the date of the passage of the resolution by the common council effecting the change, but the claim may be made within one year after the actual change.</p> <p>It seems, also, that the city may waive the limitation, as it is imposed for its benefit.</p> <p>As to whether, where the city refers such a claim to the assessors, without objection on the ground of expiration of time limited, the question can be raised before them, qumre ?</p> <p>Where, upon return to writ of eertiora/ri to review a decision of the assessors upon such a claim, certifying that no damages had been sustained, it was conceded that damages were in fact sustained, but the assessors arrived at their conclusion by offsetting benefits,—Held, that a question of law was presented and the decision of the assessors thereon was open to review (Code of Civ. Pro., § 2140); also, that the decision was erroneous.</p>

■ Appeal by Otto O. Goldschmitt, purchaser, from order of . the General -Term of the Supreme Court, in the second judicial department, made December 11, 1883, which affirmed certain orders of the Special Term requiring the said purchaser to complete his purchase on sale under the judgment herein. This-was an action to foreclose a mortgage executed by defendant Hull.

Appeal by Henry Devoe, relator, from a judgment of the General Term in the Third Department of 6th May, 1884, affirming dismissal of a writ of habeas corpus by Hon. George Soramling, county Judge of Otsego county, of March 19, 1884. The relator was convicted, March 3, 1884, at the court of Sessions of Otsego county, of assault in the third degree, and was sentenced to hard labor in the State prison for one year.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made the first Monday of May, 1882, which affirmed a judgment in favor of defendants, entered upon an order nonsuiting the plaintiff on trial. .</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The time and mode of performance of a contract for the sale of goods, although within the statute of frauds, may be extended and modified by parol. (Blanchard v. Trim, 38 N. Y. 225; Cuff v. Penn, 1 Maule & Sel. 21; Organ v. Stewart, 60 N. Y. 419; Cummings v. Arnold, 3 Metc. 486; Stearns v. Hull, 9 Cush. 31; Blanchard v. Trim, 38 N. Y. 227; Goss v. Lord Nugent, 2 Nev. & Man. 33; Marshall v. Lynn, 5 M. & W. 109; 1 Greenl. on Ev. [13th ed.], §§ 303, 304; 2 Whart. on Ev., § 901; Keating v. Price, 1 Johns. Cas. 22; Fleming v. Gilbert, 3 Johns. 528; Frost v. Everett, 5 Cow. 497; Mayor, etc., v. Butler, 1 Barb. 325, 327; Esmond v. Van Benschoten, 12 id. 366; Clark v. Dales, 20 id. 42, 64; Stone v. Sprague, id. 509, 515; Robertson v. Batchelder, 4 N. H. 40; Cox v. Bennett, 1 Green, 168; Franklin v. Long, 7 Gill. & Johns. 401; Walkins v. Hodges, 6 Harr. & J. 38.) There is nothing in the objection that the parol arrangement was invalid for want of consideration. The original written contract was sufficient consideration. (Burt v. Saxton, 1 Hun, 551; Clark v. Dales, 20 Barb. 42; 14 Serg. 6 Rawle, 241; Evans v. Thompson, 5 East, 189, 193; Hasbrouck v. Tappan, 15 Johns. 200, 204; Burt v. Saxton, 1 Hun, 551; Friess v. Rider, 24 N. Y. 367; Dearborn v. Cross, 7 Cow. 50; Esmond v. Van Benschoten, 12 Barb. 370; Stearns v. Hall, 9 Cush. 31; Cummings v. Arnold, 3 Metc. 486; Munroe v. Perkins, 9 Pick. 298; Blood v. Hardy, 15 Me. 61; Richardson v. Cooper, 25 id. 450.) He who prevents a thing being done shall not avail himself of the non-performance he has caused. (Fleming v. Gilbert, 8 Johns. 528; Mayor, etc., v. Butler, 1 Barb. 337; Young v. Hunter, 6 N. Y. 204.) A party may waive a right at any time. (Keating v. Price, 1 Johns. Cas. 22; Esmond v. Van Benschoten, 12 Barb. 336; Clark v. Dales, 20 id. 42; Dodge v. Crandall, 30 N. Y. 307.) Defendant’s letter of April 8, 1880, was a positive, absolute refusal to carry out the contract, and dispensed with the formality of plaintiff’s tendering any performance. (Benjamin on Sales, 557; Howard v. Daly, 61 N. Y. 362; Pollen v. Le Roy, 30 id. 549.)</p> <p>The agreement, for the breach of which the plaintiff seeks to recover damage in this action, is void under the statute. (Part 2, R. S., chap. 7, tit. 2, § 3.) By incorporating in the written agreement of January 23, 1880, the manner of shipment and the time it should be made, these elements became essential parts of the contract, as much so as the character and quality of the iron, and a failure in respect thereto would entitle the other party to regard the contract as broken. (Lawrence v. Miller, 86 N. Y. 139; Welsh v. Grossler, 89 id. 540, 548; Babcock v. Emerich, 28 Hun, 642; Cunningham v. Judson, 17 Week. Dig. 437; Seipel v. Int. Life Ins. & Tel. Co., 84 Penn. St. 47; Graves v. White, 87 N. Y. 463; White's Bank v. Myles, 73 id. 338; Addison on Contracts, § 359; Goss v. Nugent, 5 B. & A. 66; Stowell v. Robinson, 3 Bing. N. C. 928; Harvey v. Grabham, 5 Ad. & El. 61; Browne on Frauds, § 411 et seq.; 1 Parsons on Contracts, 365, 368, 369; Dana v. Hancock, 30 Vt. 616; Whittier v. Dana, 10 Allen, 326.) If an executory contract required by the statute to be in writing be changed, either in regard to the amount or quality of the goods to be delivered, price paid, terms of sale, or manner of performance, the change must be evidenced by the same description of testimony. (Stead v. Dauber, 10 Ad. & El. 65; Blood v. Goodrich, 9 Wend. 69.) A waiver of the time of performance to be effective must be either, before breach, when it would operate by way of estoppel, or after breach, upon a new consideration, when it operates by way of release. (Ripley v. Etna Ins. Co., 30 N. Y. 136, 164.) Even assuming the validity of the contract it was executory, and in order to put the defendants in default the plaintiff must show a tender of performance, or at least a proof of an ability and readiness to perform. (Hargous v. Stone, 5 N. Y. 73.) It was the duty of the plaintiffs to tender iron of the character and quality called for by the contract. (Shields v. Pettee, 4 N. Y. 124; Brown v. Weber, 38 id. 187; Paige v. Ott, 5 Den. 406; Nelson v. Plimpton Fire-Proof Co., 55 N. Y. 480; Dinham v. Pettee, 8 id. 508; Lester v. Jewett, 11 id. 453.)</p>

The nature of the action and the material facts are stated in the opinion. The New York Stock Exchange is a voluntary association. (White v. Brownell, 2 Daly, 359; Constitution of the New York Stock Exchange, arts. 21, 81.) Whatever rights the Exchange has over its members and their membership, must be determined by the constitution, by-laws and rules or regulations of the Exchange.

(Reported below, 27 Hun, 63.) This action was brought mainly to recover damages for an alleged breach of a contract of employment. Defendants were manufacturers of millc-cans, doing business-under the name of “ Iron-Clad Can Co.” In January, 1875, the parties entered into negotiations, which resulted in an oral agreement that plaintiff would enter into defendants’ employ as a salesman, and serve in that capacity for three years.

The nature of the action and the material facts are stated in the opinion. The case is reported upon a former appeal in 91 IST. Y. 67. The, city charter (Chap. 335 of the Laws of 1868, as amended by chap. 406 of the Laws of 1873) renders the duty of building and repairing sidewalks imperative upon the city (§ 20).

The substance of the complaint and the grounds of demurrer are stated in the opinion. Although the distinction of actions by defining them as ex delicto and ex contractu is not in terms adopted by the Code, under it causes of action of the two characters cannot be joined in the same complaint unless they arise out of the same transaction, or transactions connected with the same subject of action.

This was an action of ejectment. The plaintiffs sought to recover possession of certain land described in the complaint as situated in the towns of blew Utrecht and Gravesend, in the county of Kings, upon which they alleged the defendant on the 28th of March, 1880, wrongfully entered and “ withholds from them.” The answer denies all the allegations of the complaint, and avers that on the day named, and for a long time prior thereto, the defendant was and now is owner and in…

plaintiff, entered upon a ■ verdict, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for injuries alleged to have been caused by the negligence of the driver of one of the defendant’s street cars. ■ The material facts are stated in the opinion. ■ Plaintiff was guilty of contributory negligence, having stepped from the platform of the car to the step.

(Reported below, 28 Hun, 69.) This action was a creditor’s suit to set aside certain mortgages made by the defendant Palmer, a special partner in the firm Yose, Dinsmore & Co., alleged to have been made in violation of section 21 of the act of Limited Partnerships.

' Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 21, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought by plaintiff, as overseer of the poor of the town of German Flats, to recover penalties for alleged violations of the excise law in selling ale and beer without a license.

This action was brought to recover an annual license fee for each car run by defendant upon its road in the city of New York from 1864 to 1874, both inclusive. The facts sufficiently appear in the opinion. The ordinance passed December 31, 1858, requiring all horse cars to pay a license fee was ultra vires and void. (17 Hun, 242; Mayor v. Second Ave. R. R. Co., 32 N. Y. 261, 272; Mayor v. Third Ave. R. R., 33 id. 42; Mayor v. Second Ave., 34 Barb. 41-44; S. C., 12 Abb.

<p>A person, morally bound, to fulfill a promise to do a certain act or thing • may not, after the act or thing has been done, recall it to the prej udice of the promisee, on the plea that the promise was invalid under the statute of frauds, and while executory, performance could not have been enforced by action.</p> <p>In 1864 M. purchased a lot of defendant and took a deed thereof in reliance upon a representation of the latter, that a strip of defendant’s land, thirty-five feet wide, adjoining on the south, was a highway, and upon his promise that he would open the same as such for the use of M., his family and assigns, and the public. In the deed the lot was described by metes and bounds; no reference was made therein to any street or to any map. Plaintiff also, in reliance upon said representation and promise, built a house upon and near the south bounds of the lot, as was understood between the parties during the negotiations. Defendant also sold lots to other persons south of and abutting on said strip of land, and soon after the conveyance, opened said strip as a street as he had agreed, and the same was thereafter used and enjoyed as a street by M., and by plaintiff, his grantee, and by the public until 1875, when defendant obstructed the entrance thereto and threatened to wholly close the same. In an action by a grantee from M. to restrain such obstruction, held, that, although the promise, while executory, could not have been enforced, defendant, by opening the street in pursuance thereof, appropriated the space as a way appurtenant to the premises, and he could not subsequently recall the dedication ; also that this right of way passed to plaintiff; and this, although in her deed it was not referred to, and the word “ appurtenances ” was not used. Also held, that plaintiff's right could be enforced by injunction.</p>

(Reported below, 27 Hun, 557.) This action was brought to recover for work alleged to have been done and performed by plaintiff for defendant. It appeared that the parties entered into an agreement, by which plaintiff was to varnish clock cases for defendant at specified prices per case, the work to be done in defendant’s factory.

This action was brought to reform a contract between plaintiffs and defendant Stotenburgh by striking out certain clauses, which, plaintiffs alleged, had been inserted therein by mistake of the scrivener, and without the knowledge or assent of the parties. The defendants other than Stotenburgh are creditors of the firm of Stotenburgh, Root & Co., and they alone appeared and answered. The material facts are stated in the opinion.

Upon the trial exceptions were ordered to be heard at first instance at General Term. Judgment was directed to be entered on the verdict, the same to stand, however, as security only. This was ,an action for contribution. The following facts appeared: George W. Snell and the original defendants in this action were stockholders in a manufacturing company.

of the General Term of the Supreme Court, in the third judicial department, entered upon an order made at the January term, 1884, which affirmed a judgment of the Court of Sessions in and for the county of Otsego, entered upon a verdict convicting the defendant of the crime of blackmailing. ‘ The crime was alleged to have been committed by means of two letters written and sent by the defendant to Cornelius Winnie, of which the following are copies: “ Office of Dist.

<p>Appeal from .order of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, 1882, which sustained exceptions taken by plaintiff on trial, set aside a verdict in favor of defendant William B. Sirret, and directed a new trial.</p> <p>This action was brought upon a promissory note, executed by the firm of Sirret & Stafford, which firm, the complaint alleged, was composed of defendants.</p> <p>Said defendant William B. Sirret, who alone appeared and answered, set up in his answer that the firm was a limited partnership, organized under and in pursuance of the statute, and that he was a special partner only.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>As this case comes up on exceptions ordered to be heard at General Term, in the first instance, only questions of law could be considered or decided by the General Term. (Hodkins v. Hodge, 38 Barb. 117; Dickinson v. Wasson, 48 id. 412; Morange v. Morris, 20 How. 263; Price v. Keys, 1 Hun, 117; Lake v. Artisans’ Bank, 3 Keyes, 776-7.) Slight evidence is sufficient to support a verdict. If there is sufficient evidence for the jury to deliberate upon, the question of fact must be submitted to the jury. (Lubar v. Koplin, 4 N. Y. 547; Morrison v. Erie Ry. Co., 56 id. 302; Wilds v. H. R. R. R. Co., 29 id. 315, 327; Dey v. N. Y. C. R. R. Co., 34 id. 9; Painton v. Northern Central Ry. Co., 83 id. 8.) It is the province of the jury not only to pass upon, conflicting evidence, but when different inferences may be drawn from evidence, or the conduct of parties, to draw the inferences. (Powell v. Powell, 71 N. Y. 71; Hart v. H. R. Bridge Co., 80 id. 622; Justice v. Lang, 52 id. 323.) The special partner having paid cash contributions before the certificate and affidavit were filed, the special partnership came into being,, because the requirements of the statute liad been fully complied with. (Whitman v. Van Ingen, 62 N. Y. 520; Hardman v. Bowen, 39 id. 196-200.) The court cannot imply terms into the statute for the purpose of extending or imposing a penalty, (Bonnell v. Griswold, 80 N. Y. 128, 135-8; Guggenheimer v. Geiszler, 81 id. 293.) A special partnership is essentially a contract for a partnership of labor and capital. (Levi on Mercantile Law, 215.) When the $40,000 was paid by the special partner to the general partners, and expended by them in the purchase at its fair value of property required for beginning and carrying on the business for which the new firm was organized, the</p> <p>law was fully complied with, and the special partnership legally formed.- (Whitman v. Van Ingen, 62 N. Y. 513; Lawrence v. Merrifield, 10 J. & S. 36; affirmed, 73 N. Y. 590.) A special partner may deal and trade on his own private account with his copartners as a firm in the samé way he could with any other firm or individual. (Troubat on Limited Partnerships, § 307; 44 Penn. St. 156-167.) After a special partnership has obtained a legal existence a special partner will not be made liable as a general partner, except for a knowing and intentional infraction of the provisions of law. (Van Ingen v. Whitman, 62 N. Y. 513, 521-3; Durant v. Abendroth, 69 id. 148; Ilaviland v. Chace, 39 Barb. 283, 288; Bell v. Merrifield, 28 IInn, 219, 222.) Publication of notice was sufficient although the name of one of the newspapers which has been designated was changed after the publication had been begun. (Riper v. Poppenhausen, 43 N. Y. 73; Brown v. Argall, 24 Wend. 496; Madison Co. Bank v. Gould, 5 Hill, 309; Levy v. Locke, 47 How. 394; Singer v. Kelly, 8 Wright [Penn.], 145.) There was no error in the ruling of the trial court declining to make an order that defendant, W. B. Sirret, should produce a cash-book. (Mathews v. Mayberg, 63 N. Y. 656; Ross v. Harden, 42 N. Y. Supr. Ct. 427.) Only exceptions can be sent to the General Term in the first instance. (Code of Civ. Pro., § 1000.) An exception can only be taken to a question of law. (Id., § 992.) Questions of fact arising upon conflicting evidence can only be brought up by a motion for a new trial made at Special Term (Code, § 1002), and cannot be brought to this court. (Code of Civ. Pro., § 1337; Wright v. Hunter, 46 N. Y. 409; Harris v. Burdette, 73 id. 136; Wilds v. H. R. R. R. Co., 24 id. 433.)</p> <p>The provision of the statute requiring a special partner’s capital to be paid in in cash is to be strictly construed, and payment in goods is in no sense a compliance with the statute. (Haviland v. Chase, 39 Barb. 283; Van Ingen v. Whitman, 62 N. Y. 513, 520; In re Merrill, 12 Blatchf. 221-223; Durant v. Abcndroth, 69 N. Y. 148; affirming, 9 J. & S. 53; Pierce v. Brant, 5 Allen, 91; Haggerty v. Foster, 103 Mass. 17; Vandike v. Rosskars, 67 Penn. St. 330; Maginn, v. Lawrence, 13 J. & S. 235.) It is the judge’s duty to direct a verdict where a verdict the other way would be* clearly against the weight of evidence. (Wilds v. Hudson R. R. R. Co., 24 N. Y. 430; Moore v. Westervelt, 1 Bosw. 357; Porter v. Havens, 37 Barb. 343; Grain v. Bank of Commonwealth, 6 Duer, 76; Fish v. Davis, 62 Barb. 122; Sexton v. Zett, 44 N. Y. 430; R. R. Co. v. Stout, 17 Wall. 663; Montclair v. Donna, 107 U. S. 162; Smith v. N. Y. C. & H. R. R. R. Co., 19 N. Y. W. Dig. 230.) A party who seasonably makes a request to charge containing a sound principle of law is entitled to have it announced to the jury without any qualification tending to render it uncertain, or tending to confuse the jury, or he is entitled to have it distinctly refused. (Wilds v. Hudson R. R. R. Co., 24 N. Y. 430; Warner v. N. Y. C. R. R. Co., 44 id. 470; Meyer v. Clark, 45 id. 285; Roe v. State, 16 Vroom, 49; 28 Alb. L. J. 298; Chapmam, v. McCormick, 86 N. Y. 479.) Mor does a judge cure the error of a qualified charge by a general statement at the end, unless it is clear that the jury were not misled by the charge taken as a whole. (Owen v. H. R. R. R. Co., 35 N. Y. 519.) The trial court erred in not requiring the defendant W. B. Sirret to obey the subpoena duces tecum requiring him to produce his county treasurer’s books. (Ex parte Kingston, L. R., 6 Ch. App. 632; Pennell v. Diffell, 4 De G., M. & G. 372; Hooley v. Gieve, 9 Daly, 104; Knatchbull v. Hallett, L. R., 13 Ch. Div. 696; Van Allen v. Am. Nat. Bk., 52 N. Y. 1; Nat. Bk. v. Ins. Co., 104 N. S. 54.) An objection not taken on the trial, and which could have been obviated if taken by further proof, cannot be first raised on appeal either to sustain the decision of the trial court or to reverse it. (Dunn v. Durant, 9 Daly, 389; Tappen v. Butler, 7 Bosw. 484; Pollen v. Le Roy, 10 id. 56; Kirby v. Sisson, 2 Wend. 550; City Nat. Bk. of Poughkeepsie v. Phelps, 86 N. Y. 484; Mead v. Shea, 92 id. 122, 127.)</p>

(Reported below, 16 J. & S. 267.) This action was upon an open policy of marine insurance, the material portions of which as well as the facts are stated in the opinion. It is the duty of the courts to give to all doubtful words or expressions in contracts such an interpretation as will make them produce some effect. (Ward v. Whitney, 8 N. Y. 442, 446; 2 Kent’s Comm. 555; Hayward v. Liverpool Ins. Co., 2 Abb. Ct. App.

This action was brought to restrain defendants from using or diverting from the plaintiff’s premises certain surplus waters-to which plaintiff claimed himself entitled under a deed to him from Charles and James W, Knapp, and to which the Knapps acquired title by deed from James and Lural Faulkner. The material facts are stated in the opinion.

(Reported below, 16 J. & S. 95.) This action was brought to recover the amount of an insurance upon a cargo of coal, made by indorsement upon an open policy which contained this description of the risks. “ Beginning the adventure upon the said property from and immediately following the loading thereof at the port or place named in this indorsement, and so shall continue and endure until the same shall arrive and be safely landed at the port of destination, and not to exceed…

„ These were cross-appeals from portions of a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made at the June term, 1882, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.

The proceedings were instituted under the statute (Chap. 208, Laws of 1874) to recover possession of forty-six acres of land to which defendant Storms claimed title under a mortgage foreclosure sale. The facts so far as material are stated in the opinion.

This action was brought to recover damages for alleged negligence. The complaint alleged in substance that defendants caused an excavation to be made in a public street in the city of New York, and left the same uncovered without any protection or guard; that, in consequence, plaintiff’s wife, while passing along said street in the night-time, without any fault or negligence on her part, fell into the pit so excavated and was injured.

<p>Appeal from, order of the General Term of the Superior Court of the city of New York, made April 3, 1882, which reversed, as to defendant Boaeh, a judgment in favor of plaintiff, entered upon the report of a referee. The order of reversal did not state that it was upon the facts.</p> <p>This action was brought for an accounting and to recover the profits alleged to have accrued on sale of certain life rafts made under a contract, the substance of which, as well as of the material facts, are stated in the opinion.</p> <p>The plea of ultra vires is not available to an individual in an action brought against him by a corporation upon a contract entered into between them, where he has received and retained the consideration, and where there is no positive proof that the said agreement was in fact contrary to the terms of plaintiffs charter. (Maybee v. Camden & A. R. R., 45 N. Y. 514, 518; Bissell v. Mich. R. R., 22 id. 258; Taylor v. Chichester, etc., Ry., L. R., 2 Exch. 356; Earl of Shrewsbury v. N. Staffordshire Ry., id. 121, Eq. 593; Nassau Bk. v. Jones, 95 N. Y. 115; Parish v. Wheeler, 22 id. 494, 508; Castle v. Lewis, 78 id. 131, 134; Atlantic State Bk. v. Lavery, 82 id. 291, 307; Gold Mining Co. v. Nat. Bk., 96 U. S. 640; Hurd v. Kelly, 78 N. Y. 588, 596.) The plea of ultra vires can only be interposed by a corporation. It is not available to an individual dealing with such corporation. (Davis v. Old Colony R. R., 131 Mass. 238; 41 Am. Rep. 237; Bissell v. Mich. South. R. R., 22 N. Y. 258, 291; Nat. Bank v. Matthews, 98 U. S. 621; 103 id. 109.) Even if the plea of ultra vires were available as a defense to an individual in an action by a corporation as matter of law, it cannot be a defense to an agreement to which all the stockholders had given their consent. (Cass v. Manchester Iron and Steel Co., 13 Rep. 167; Kent v. Quicksilver Mining Co., 78 N. Y. 159, 186; L. R., 2 Exch. 390; L. R., 7 C. P. 43; L. R., 3 H. L. 249; Sheldon H. B. Co. v. Eickemeyer H. B. M. Co., 90 N. Y. 607, 613; Magdalene Steam N. Co., In re., 6 Jur. [N. S.] 975.) Where joint contractors are sued, a recovery against one necessitates a recovery against all. (Oakley v. Aspinwall, 4 N. Y. 513; Olmstead v. Webster, 8 id. 413; Suydam v. Barber, 18 id. 468.) The contract having expressly forbidden the use of moneys by any officer without the written consent of the trustees, and there having been no such written consent, the defendant, Mr. Roach, as president and trustee, was liable to the plaintiff for a breach of his fiduciary duty. (Cutting v. Marlor, 75 N. Y. 454; Earl v. Earl, 93 id. 104, 113, 117.)</p> <p>The order of the General Term was not appealable. (Dickson v. R. R. Co., 47 N. Y. 507; Harris v. Burdett, 73 id. 136; Brooks v. Mex. Nat. Com. Co., 93 id. 647.) No subsequent ratification could validate the contract. The doctrine' of ratification applies only to voidable acts, never giving life to a void act. (10 Weekly Dig. 33.) The contract exceeded the powers of the corporation and was ultra vwes. (80 N. Y. 82; 22 id. 258; Woodruff v. E. R. R., 93 id. 612; S. C., 95 id. 120; Nassau Bk. v. Jones, 78 id. 203; 1 Sandf. Ch. 280; 1 Hill, 11; 5 Denio, 567; 7 N. Y. 328.) If any property or funds of the company came into the hands of either of the defendants, it was secured by them as trustees, and they are only liable as such. (4 Johns. 23; 3 Wend. 130; Ang. & Ames on Corp. [10th ed.], § 312; 14 Weekly Dig. 257; 5 Johns. Ch. 289; Croft v. Williams, 88 N. Y. 384; Paulding v. Sharkey, 88 id. 432.)</p>

(Reported below, 16 J. & S. 220.) This action was brought to recover damages for an alleged breach of contract. The material facts are stated in the opinion. Where a contract, void by the statute of frauds, has been partly performed, the law will imply a contract of some kind to prevent a wrong.

This action was brought by plaintiff as supervisor of the town of Hempstead, Queens county, upon an official bond given by defendant Clark as overseer of the poor in said town. The sureties on the bond alone appeared and answered. The material facts are stated in the opinion. The sureties upon the bonds of a public officer are liable only for defaults committed by him after the commencement of the term of office for which they became his sureties.

The appeal in the action first entitled is from a judgment of the General Term of the Supreme Court, in the fourth judicial department,… Held: and they were damnified. The measure of damages was the amount due and unpaid upon the Acer bond and mortgage, and interest which the defendant had bound himself to pay on the first day of March, 1877. (Rector of Trinity Church v. Higgins, 48 N. Y. 532; Kohler v. Mattage, 72 id. 259.) The answer .sets forth no defense to the action.

The nature of the action and the material facts are stated in the opinion. The memorandum, made by Williams in deed book No. 54 in relation to an assignment there recorded, was incompetent evidence, and its reception and the proof of a custom or habit of the witness Horton and his clerks to make such entries was error. (People v. Keyser, 39 Barb. 587; 1 R. S. 756.) Official registers are not evidence of any fact not required to be recorded in them.

This was an action of ejectment. Susan Gatin is the common source of title. She died in 1845, seized of the premises, leaving a will, the material portion of which is as follows : “ Second.

This action was brought to obtain a judicial construction of the will of Ben jamin Bailey, deceased. The provisions of the will in question and the material facts are stated in the opinion.

This action was brought upon a bond given by defendant John S. Seibold as principal, and_ the other defendants as his sureties. The nature of the bond and the material facts are stated in the opinion. Plaintiffs’ business being the publishing and selling of books, the contract and bond in suit were not based upon any act in violation of law.

The nature of the action and the material facts are stated in the opinion. To entitle plaintiffs to recover treble damages, the nature of defendant’s deceit must be such as would make him guilty of a misdemeanor. (Golschens v. Matheson, 58 Barb. 152.) The deceit referred to in the statutes must consist of false and fraudulent representations of matters of fact and not of matters of opinion or judgment.

<p>As to whether the public can acquire by prescription an easement to use a private stream for floating logs or for any other purpose, quaere.</p> <p>In an action to restrain defendants from floating saw-logs in the waters of a stream running across plaintiff’s land, it appeared that for thirty years the stream had been so used by a few persons, not over twelve in all, and generally not more than three or four persons so used it in any one year, and the user was only for about six days in any one year, and some years not more than three. Held, that even if an easement in the public could be acquired by prescription, such a use as existed here could not confer such right.</p> <p>It appeared that defendants threatened to float a large number of logs over plaintiff’s lands, using the stream and its banks for that purpose, and that by so doing some damage would be done to the banks and other lands of plaintiff; also that defendants claimed a right in the public to so use the stream, and asserted that they would exercise it whenever they chose. 'Held, that the facts authorized equitable interference to quiet plaintiff’s title, settle his rights, and prevent the threatened inj ury.</p> <p>Also held, that in such a case all parties asserting the common right might properly be joined as defendants.</p> <p>Also held, that as plaintiff, when he commenced the action, had the right to maintain the same, he could not be defeated by the fact that afterward the logs were floated down the stream; that plaintiff’s right could be settled and damages awarded.</p>

(Reported below, 33 Hun, 200.) The nature of that order is set forth in the opinion. The order of the County Court was conclusive upon questions of fact, but appealable on questions of law. (In re Ryers, 72 N. Y. 1, 4.) The appellant was not entitled to an appeal to the General Term, and is not entitled to this appeal. (Matter of Canal and Water Sts., 12 N. Y. 406; Matter of Commissioners, 50 id. 493; Matter of N. Y. C. R. R. Co., 11 id. 276.)

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence) Plaintiff, desiring to take passage on defendant’s road, and having purchased a ticket, went out on the platform -of the depot at Chatham village, waiting for an approaching train. The train had a postal car attached, ahead of the passenger cars.

Writ of error to General Term of the Supreme Court, for the fourth judicial department, to review a judgment and order of that court reversing a conviction of the defendant in error, David Augsbury, for the crime of assault with intent to kill, in the Court of Sessions of Jefferson county and ordering a new trial. The facts fully appear in the opinion.

(Reported below, 26 Hun, 250.) This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of the negligence of defendant. The facts sufficiently appear in the opinion. The court erred in the refusal to charge that negligence on the part of Charles Hammond in setting the fire or the management of the same could render the defendant liable in this action.

(Reported below, 28 Hun, 500.) The substance of the pleadings is set forth in the opinion. On demurrer a complaint is deemed to allege- what can be implied from the allegation therein by reasonable and fair intendment and facts impliedly averred, are traversable in the same manner as though directly averred. (Marie v. Garrison, 83 N. Y. 14; Zabriskie v. Smith, 13 id. 330.) Theremedyfor indefiniteness is not by demurrer but by motion.

(Reported below, 16 J. & S. 324.) This action was brought to compel a specific performance by defendant of a contract to purchase certain premises known as lot No. 13 West Thirty-second street, in the city of New York. Defendant refused to complete the contract because of an alleged defect in the title.

(Reported below, 32 Hun, 440.) Said Mann was elected justice of the peace for a term commencing January 1, 1884, he was seventy years of age July 11, 1881. A justice of the peace is not disqualified from acting as such after he has reached the.age of seventy years. (Cushing v. Warrick, 9 Gray, 382; People v. Gardner, 59 Barb. 224; Gyer's Estate, 65 Penn.

(Mem. of decision below, 26 Hun, 668.) This action was upon a policy of marine insurance. The material facts are stated in the opinion. The policy must be construed according to its terms and .the evident intent of the parties, to be gathered from the language used, and the court cannot extend the risk beyond what is fairly within the terms of the policy. (2 Pars. Cont. 357; Wood on Ins. 143, §§ 57, 59, 67; Pearson v. Com. Ins. Co., L. R., 1 App. Cas. 498; Phœnix Ins.

Plaintiff claimed title under' a conveyance from John H. Livingston as executor of the will of Mary Livingston De Peyster. In 1871 and 1874, J. Watts De Peyster executed two deeds, purporting to convey the property in question. The deeds were to said Mary Livingston De Peyster, wife of the son of the grantor. The granting parts were in the usual form of bargain and sale, for a moneyed consideration expressed, save as hereinafter stated.

This action was brought upon an alleged agreement to pay rent. The facts are sufficiently stated in the opinion. The unexpired term of the lease being more than one year, the agreement to assign the same, not being in writing, is void. (2 R. S. 134, 135, §§ 6, 8.) The parol stipulation to pay rent, sought to be enforced, is inseparably connected with the agreement to assign; since each is the sole consideration for the other.

This action was brought to recover damages for injuries alleged to have been caused by plaintiffs negligence. The defendant was the contractor for the erection of a building at the north-east corner of Grand and Mercer streets in the city of Rew York; included in his contract was the building of a vault under the sidewalk of Grand street.

<p>Where persons, whose lands were taken for canal purposes, at the time the provision of the Revised Statutes (1 R. S. 225, § 48) was in force, requiring every person interested in lands so appropriated, if he intended to make any claim for damages, to do so within one year after the taking, omitted to make a claim within the time specified,— Held, that they thereby waived all right of damages ; and that the State became vested with a full and perfect title free from any claim or right existing in the owners.</p> <p>Also held, that the right so acquired by the State was not canceled, or the right of the owners to damages revived by the act of 1870 (Chap. 321, Laws of 1870), conferring upon the canal appraisers jurisdiction to “ hear and determine all claims against the State, * * * for damages alleged to have been sustained * * from the canals of the State, or from their use and management; ” that the claims mentioned in the act were of a different character from those provided for by the said provision of the Revised Statutes.</p> <p>People, ex rel. Jermain, v. Thayer (14 Hun, 798; 63 H. T. 348), distinguished.</p> <p>Plaintiffs claimed that undei? said act of 1870, they were entitled to damages for the impairment of a ferry right, caused by the original taking. Held untenable; as such impairment was but an incident of the appropriation, and constituted a portion of the damages, and could not be presented as a separate and distinct claim.</p>

<p>Appeal by defendant, the Albany County Bank, from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made December 16, 1882, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Eight of set-off can only arise . or attach when there is mutuality of debts of such a certain and ascertained character as to be capable of set-off, or being applied in compensation of each other. (Hackett v. Connett, 2 Edw. Ch. 73.) The assignment will protect the assignee of an insolvent, against a claim arising out of the payment of a contingent liability existing at. the time of the assignment, but paid áfterward. (Chance v. Isaacs, 5 Paige, 591.) The right to set-off does not attach until the debt sought to be set off has become due. (Keep v. Lord et al., 2 Duer, 78; Munger v. Albany City Bk., 85 N. Y. 580; Beckwith v. Union Bk. of N. Y., 9 id. 211; Waterman on Set-off, 118; Myers v. Davis, 22 N. Y. 489; Martin v. Kunzmiller, 37 id. 396.) The right of set-off does not arise until there are mutual causes of action. (Taylor v. Mayor, etc., 82 N. Y. 17; Schermerhorn v. Anderson, 2 Barb. 584; Ainslie v. Boynton, id. 263; Bradley v. Angell, 3 N. Y. 475; Roberts v. Carter, 38 id. 107; Graves v. Woodbury, 4 Hill, 559; Markey v. Markey, 43 Barb. 58; Fink v. White, 57 N. Y. 103; Firminisch v. Bovee et al., 1 Hun, 532; Mead v. Gillett, 19 Wend. 397.) Precedent indebtedness is a good consideration to uphold an assignment as against a set-off arising after the assignment. (Hackett v. Connett, 2 Edw. Ch. 72; Markey v. Markey, 43 Barb. 58; Zogbaum v. Parker, 55 N. Y. 120; Spencer v. Barber, 5 Hill, 568; Myers v. Davis, 22 N. Y. 489; Youmans v. Edgerton, 91 id. 403.) The order denying the motion to dissolve the injunction did not make the question of liability to set off “ res adyudicata” in. this case. (Deufers v. Frosche, 5 Hill, 493; Snyder v. White, 6 How. Pr. 321; Bank et al. v. Tract Soc., 4 Sandf. Ch. 438; Mack v. Patchin, 29 How. Pr. 29.) The assignment to.the bank of the recovery to be had in the suit of dagger against Littlefield operated as an assignment of the judgment in that action, when recovered, as found by the referee. (Hackett v. Connett, 2 Edw. Ch. 72; Markey v. Markey, 43 Barb. 58.)</p> <p>Plaintiff was entitled to the equitable.set-off claimed. (Smith v. Felton, 43 N.Y. 419; Davidson v. Alfaro, 80 id. 660; Coffin v. McLean, id. 560; Zogbaum v. Parker, 55 id. 120; Lindsay v. Jackson, 2 Paige, 581; Gay v. Gay, 10 id. 369; Shipman v. Lansing, 25 Hun, 290; Seymour v. Dunham, 23 id. 93.) The claim and cause of action of Perry against dagger and Littlefield was extinguished by his settlement with Perry. (Brabin v. Hyde, 32 N. Y. 523; Davis v. Spencer, 24 id. 391.) Equity will look at the cause of action for which judgment upon the notes was recovered, and treat it according to the equities existing between dagger and Littlefield, growing out of the very contract upon the faith of which the notes were given. (Davidson v. Alfaro, 16 Hun, 359; affirmed, 80 N. Y. 660; Shipman v. Lansing, 25 Hun, 290.) The insolvency of dagger gives the absolute right to Littlefield to claim an equitable set-off against the judgment, both in dagger’s'hands and in the hands of the bank as assignee thereof. (Gay v. Gay, 10 Paige, 369; Smith v. Felton, 43 N. Y. 419; Davidson v. Alfaro, 16 Hun, 353; 80 N. Y. 660; Seymour v. Dunham, 24 Hun, 95; Coffin v. McLean, 80 N. Y. 560.) The court has the equitable power of set-off in all cases. (Coates v. Donnel, 48 N. Y. Supr. Ct. [J. & S.] 46; Chance v. Isaacs, 5 Paige, 592.) The proof by dagger’s admission under oath, fixing the time of his insolvency, was proper, as establishing a fact in the case, the same as the proof without objection of his agreement with Littlefield, proof of the proceedings in the Perry suit, and dagger’s refusal to take part in the defense of the same, and other facts relating to their mutual claims, (Dunham v. Gates, 3 Barb. Ch. 196; Wright v. Nostrand, 94 N. Y. 31.)</p>

pursuance of the directions of the court. (Reported below, 16 J. & S. 185.) This action was brought to recover damages for the alleged conversion of two hundred shares of Hew Jersey Central railroad stock. Defendant set up as a defense a discharge in bankruptcy. The material facts are stated in the opinion. At least a prima facie case of fraud was established by the plaintiff’s evidence.

The nature of the action and the material facts are stated in the opinion. The' warrant, under the Stillwell Act, could not be issued after the plaintiff had resorted to an arrest under the Code. (Wells v. Guerney, 8 Barn. & Cres. 769; Petersdorf on Bail, 131-139; Wheelwright v. Joseph, 5 M. & S. 93; Imlay v. Elleffsen, 3 East, 309; 8 Taunt. 24; Enoch v. Enst, 21 How. 96; Wright v. Ritterman, 1 Abb. [N. S.] 428; People, ex rel.

(Reported below, 33. Hun, 136.) The city set up as an answer payment of the assessment before commencement of the proceedings. The material facts are stated in the opinion. The joint petition presented in 1873 was a valid commencement of the proceeding.

(Reported below, 32 Hun, 418.) The amount received by a wife upon a policy of insurance, issued upon the life of her husband, for the benefit of herself and children, is not subject to the claim of her creditors. (Leonard v. Clinton, 26 Hun, 288; Barry v. Eq.

This action was tried by the court; its decision was filed February 4, 1882. A draft of judgment, signed by the judge who tried the case, was delivered to the clerk, who used the same in entering judgment; a copy of the judgment, save that the signature of the judge was omitted, was served on defendants’ attorneys February 10, 1882, indorsed as stated in the opinion. In December, 1883, defendants’ attorneys served notice of appeal, case and exceptions.

This was an action for divorce a vinculo ; a judgment was rendered dissolving the marriage, but making no provision for alimony, or for the support of Mary B. Gatlin, a child of the marriage.

The General Term reversed a judgment in favor of plaintiff' upon the facts: The court- here held, that there was evidence-authorizing the reversal. Held: that there was evidence-authorizing the reversal.