Volume 98 — New York Supreme Court Reports

Appeal by the plaintiff from an order of the Supreme Court,, made at the Schenectady Special Term and entered in the office of the clerk of the county of Warren on the 2d day of August, 1895,, adjudging that the execution issued on the judgment entered in the action on the 21st day of September, 1894, was not a lien upon a certain fund in the hands of the late sheriff of Warren county superior to the lien of an attachment and execution issued in an‘ action brought by one…

Appeal by the relator, John W. McClelland, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the cleric of the county of Albany on the 15th day of July, 1895, denying his motion for a mandamus to compel the Comptroller to audit and pay his claim for salary as cleric to the collector of canal statistics for the month of May, 1895.

Appear by Ella W. Sharp and another from a decree and judgment of the Surrogate’s Court of tlie county of Warren, entered in said Surrogate’s Court on the 31st day of July, 1895, judicially settling the accounts of the trustees under the will of Abraham Wing.

Appeal by the applicant, Michael E. Finnigan, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of June, 1895, denying his motion for a writ of mandamus as amended nunc pro tunc by an order entered in said clerk’s office on the 24tb day of July, 1895.

Appeal by the applicant, Thomas J. Kenna, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of August, 1895, denying his motion for a peremptory writ of mandamus.

<p>Verdict — a general verdict cannot stand where special findings conflict with it — the jury may be sent bach — otherwise the verdict must be set aside — affidavits of jurors used —■ a judgment must rest on a clear decision.</p> <p>A judgment in favor of a party should rest upon a positive and clear decision in his favor. The decision may be illegal or erroneous, but the procedure in the courts of the State of New York contemplates that it shall not be doubtful or ambiguous.</p> <p>Where the findings of a jury as to special questions submitted to them are inconsistent with a general vérdict, the special "findings- control the general verdict, and the court must render judgment accordingly.</p> <p>Where the general verdict of a jury is inconsistent with special findings made by it, the court may call the attention of the jurors to the inconsistency and send them back to the jury room to reconsider the case.</p> <p>It seems, that the rule that affidavits of jurors will not "be considered for the purpose of impeaching their verdict, does not apply to a case where the verdict of the jury is inconsistent on its face, but only to cases in which the application is to set aside a general verdict or a special finding where there was no general verdict.</p> <p>Where a jury find a general verdict for the plaintiff on a claim for work done by the plaintiff, and also find specially that the plaintiff has been paid for the work, and that certain other work done by the plaintiff for the defendant was defective, insecure and unworkmanlike, and the damage caused to the defendant thereby, and the case is one calling for a mere money judgment and requiring no special findings, it is the duty of the court to set the judgment aside and to grant a new trial.</p>

<p>fraud — restoring the, consideration upon the rescission of a contract — construction,' determined by the acts of pai ties.</p> <p>Where a person desires to rescind a contract because of fraud, he must restore or offer to restore the consideration which he has received under it.</p> <p>Where a question arises as to the proper construction of an agreement the court • may consider the acts which the parties have done under it, with a view to ascertaining what they understood the agreement to be.</p> <p>A debtor and creditor, mutually interested in insurance policies, running to the debtor, upon which a loss has occurred, entered into an agreement as to the way in which the insurance moneys and the salvage on the stock insured should be divided, which agreement further provided that the debtor, upon assigning the policies to the creditor, should be released from responsibility.</p> <p>Held, that the debtor, upon making such assignment, was released from all claims and demands against him upon the part of the creditor.</p>

Appeal by the defendants, The Mayor and Common Council of the City of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of July, 1895, directing the defendant to reinstate the relator in his position as keeper of the Truant.

Appeal by the relator, Edward M. Goring, from an order of the Supreme Court, made at tbe Kings County Special Term and ■entered in the office of the clerk of the county of Dutchess on the 4th day of September, 1895, denying his application for the assessment of damages against the respondent.

Appeal by tlie defendant, Sarali A. Stillwell, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1894, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury, and also from a final judgment entered in said clerk’s office on the 14th day of August, 1894, upon the report of a referee.

Appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1895, as provides as follows : “ It is ordered and adjudged that the proceedings and adjudication of the said commissioners, in regard to the assessment for taxation for the year 1894, of…