text:
    WILLIAM A. KNOX, Respondent, v. LAURENTINE McDONALD, FARLIN BALL and SIDNEY BRIMMER, Appellants.

      Injunction — when the execution of a warrant issued on a final order in summary proceedings cannot he stayed hy it.

    “Under the Code of Civil Procedure an injunction staying the execution of a warrant issued upon a final order, made in summary proceedings for the recovery of the possession of real property, can only be granted in a case where one would be granted to stay the execution of the final judgment in an action of ejectment.
    To justify the granting of the injunction, it must be shown that the plaintiff is making an oppressive use of the judgment, or that he has ceased to own the premises, or that the defendant has, subsequently to its recovery, acquired sorpe interest or equity in the property which should be protected, or that the judgment was obtained by fraud or collusion.
    Appeal from an order of tbe Oswego Special Term denying a motion .to set aside and vacate an injunction, granted to restrain the defendants from executing a warrant issued upon a final order in summary proceedings made by the defendant Ball, a justice of the peace of Brownville, Jefferson county. A trial was had before the justice March 16, 1881, the plaintiff claiming that a renewal of his lease had been given by Mrs. McDonald, the land owner, and Mrs. McDonald denying it. The justice decided that such renewal had not been given and that Knox, the plaintiff here, was holding over, “ after the expiration of his term, without the permission of the landlord,” and thereupon the final order was made by the justice awarding possession of the farm (250 acres) to the owner. Thereupon the tenant (the plaintiff here) appealed to the County Court of Jefferson county and gave an undertaking; he also procured an order from the special county judge of Jefferson granting a stay, which was set aside and vacated by that officer on the 21st of March, 1881.
    This action was thereupon brought and an injunction order obtained from a justice of this court, which the Spécial term refused to vacate, and from such refusal this appeal is brought.
    The complaint and affidavit upon which the injunction was granted stated, among other things, that after the making of the-verbal lease for the year 1881 the plaintiff did the fall work on the farm and caused a large quantity of land to be plowed for the-purpose of putting in crops in 1881'; that he was advised and believed that errors were committed on the trial which would necessitate a reversal of the order on appeal; that there was no way by which the warrant and order could be stayed except by injunction;. that the plaintiff was the owner of a large amount of personal property upon the farm, and that he did not own any farm and had no-place to remove the said property to in case he was dispossessed and removed from the said premises, and that if he was so removed during the said appeal he would suffer great damages.

      Porter & Walts, for the appellants.
    (9’ Brien <& Emerson, for the respondent.
   Hardin, J.:

Authorities are numerous to the effect that the court will not restrain by injunction summary proceedings for the recovery of possession of lands, when no fraud, mistake, surprise or undue-advantage in the actual conduct of such proceedings is shown. (Armstrong v. Cummings, 20 Hun, 313.)

Such stay was prohibited by 2 Hevised Statutes, 516; and under that provision it was settled that when the proceedings were not fraudulent or collusive and the officer had jurisdiction the court .would not interfere by injunction to prevent or stay such proceedings. (Sherman v. Wright, 49 N. Y., 232.)

And in Rapp v. Williams (1 Hun, 716) it was decided that the-question of the extension of the lease is one that can be properly ■determined in the summary proceedings, and an injunction was refused when it was sought to prevent such summary proceedings from being taken as were taken in the case before us.

Have these rules been changed or abrogated by title 2 of the ■Code of Civil Procedure, in sections 2231 to 2265, inclusive ? By section 2231 summary proceedings are authorized in a case like the one before us.

By section 2261 it is provided “ The issuing or execution of the warrant cannot be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed, in the next section.”

The next section, to wit, 2262, provides for a holding over “ after a default in the payment of rent.” That section does not embrace a case like the one made before the justice. By section 2265 it is provided that if the final order “ awards delivery of the possession to the petitioner, the issuing or execution of the warrant thereupon cannot be stayed or suspended by any cou/rt or judge, except in one of the following methods: (1) By an order made or an undertaking filed upon an appeal in a case, and in the manner specially prescribed for that purpose in this title. (2) By an injunction order granted in an action against the petitioner. Such an injunction shall not be granted * * * after the final order, except in a case where ■an injunction would be granted to stay the execution of the final judgment ” in an action of ejectment. The language of the statute is imperative and must be obeyed. When the order of injunction was .applied for, did the plaintiff make a case where, according to settled rules, the court would stay an execution by injunction, after final judgment in ejectment? We think not. (Jessurun r. Mackie, 24 Hun, 624, opinion Davis, J.) (1) Injunctions or stays are granted ■of “final judgment” in ejectment when the plaintiff is making an “oppressive use” of it. (Jackson v. Stiles, 3 Wend., 429.) (2) When the plaintiff’s title has terminated to the premises, or (3) where the defendant has, subsequent thereto, acquired some interest or equity in the subject-matter of the action which should be protected, or (4) when the judgment was obtained by fraud or collusion.

No such case was made out by the papers used on the application for the injunction order brought up for review.

II. Hpon the papers used at Special Term it is apparent that the whole equities of the plaintiff are denied. In such cases it is nsual to dissolve the injunction. (Perkins v. Warren, 6 How., 341; Schermerhorn v. Merrill, 1 Barb., 511.)

Besides the denial in the answers it appears, upon a trial had before the justice, a determination was had of the question as to the extension or renewal of the lease, and that question was determined favorable to the landlord.

We are, therefore, unable to find any warrant in the provisions of the statute we have quoted, for an injunction against the execution of the final order made by the justice after hearing the evidence touching the merits fairly, and after acquiring full jurisdiction of the parties and the subject-matter, under such circumstances as to render his judgment conclusive upon the parties until reversed.

Again, if, upon an appeal to the County Court, the final order is reversed and judgment of the County Court given in favor of the tenant, that court may award,restitution.

Furthermore, section 2263 expressly gives a right of action to the person dispossessed “ to recover the damages which he has sustained by the dispossession.”

Thus we see the plaintiff has an adequate remedy at law, and that furnishes ground for saying that a case has not been made “ where an injunction would be granted to stay execution of the final judgment” in an action of ejectment.

The case of Landon v. Supervisors of Schenectady (24 Hun, 76) is distinguishable from this one.

We conclude that the Special Term ought to have vacated the injunction order, and we must reverse its order, with ten dollars costs and disbursements, and grant the motion to vacate the injunction, with ten dollars costs.

Smith, P. J., and Haight, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate injunction order granted, with ten dollars costs.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    NANCY E. BRADLEY, Administratrix, etc., of BENJAMIN J. BRADLEY, Deceased, Respondent, v. NELSON R. MIRICK, Appellant.

      Evidence — testimony of a deceased party— when it is admissible upon a new trial, though he isas not cross-examined upon the former one.

    This action was brought to recover as damages the value of certain spearmint oil loaned by the plaintiff’s intestate to the defendant, upon his promise to return a like quantity-and quality of oil. December 6, 1876, the intestate recovered a judgment, upon an inquest taken at the circuit, which was, on July.29,1878, opened upon the application of a committee appointed for the defendant, upon his being adjudged an habitual drunkard. October 8, 1878, the intestate died, and thereafter the action was revived and continued by the plaintiff. Upon the trial the plaintiff gave evidence tending to show that upon the inquest the intestate was sworn in the presence of the defendant and gave evidence tending to show that such a demand as was required by the contract had been made. A witness was asked by the plaintiff if, upon the inquest, the defendant had an opportunity to examine the intestate. Upon the defendant’s objection the answer was excluded. Thereafter the evidence as to the testimony given by the intestate upon the inquest was stricken out.

      Held, that this was error, as it did not appear that the failure of the defendant to cross-examine the plaintiff’s intestate was due to any fault or omission on the part of the latter.
    Appeal by defendant from an order of the Monroe Special Term setting aside a nonsuit and granting a new trial.
    The action was brought to recover, as damages, the value of 432 pounds of spearmint oil, which was borrowed by the defendant from the plaintiff’s intestate to fill an order that the defendant had obtained for that quantity, upon his promise to return to the plaintiff’s intestate a like quantity and quality of oil.
    December 6, 1876, the plaintiff’s intestate, Benjamin J. Bradley, deceased, recovered a judgment, upon an inquest taken at the-Wayne Circuit, for the value of the thirty-six cases of spearmint oil mentioned in the complaint.
    The intestate died October 8,1878, and the plaintiff was-appointed administratrix October 21, 1878. On the 2d January, 1877, the defendant was adjudged an habitual drunkard, and to have been such from September 1, 1875. The judgment first above mentioned was, on motion of the committee of the defendant, opened July 29, 1878, and the defendant allowed to come in and defend.

      John II. Camp, for the appellant.

      C. U. Roys for the respondent.
   Hardin, J.:

Assuming the contract set out in the complaint, and supported by evidence upon the trial, to be one of sale, as we think it was, as is fully settled by authority {Marsh v. Richards, 3 Hun, 550), we are led to inquire whether a demand was necessary.

Though a sale, though the title passed to the borrower, he was under an agreement to pay in spearmint oil of like quality and quantity. {Carpenter v. Griffin, 9 Paige, 314; Smith v. Clark, 21 Wend., 83.)

Obligation to pay in kind and quality, as no time and place was named, was when demand should be made therefor. {Foster v. Pettibone, 3 Seld., 435 ; Mallory v. Willis, 4 Comst., 81; Marsh v. Richards, 3 Hun, 550.)

Hpon the trial the plaintiff gave evidence tending to show an inquest taken in the action, upon which the plaintiff was sworn in the presence of the defendant, tending to establish such a demand as was necessary under the contract, and that the plaintiff had died after the inquest and before the trial.

A witness was asked if the defendant had opportunity to examine the plaintiff. That was objected to and excluded.

Then the evidence given in respect’ to the testimony tending to show a demand of the property was upon the motion of the defendant stricken out and the plaintiff took an exception. We think such evidence was improperly stricken out. The absence of a cross-examination of the plaintiff was no fault of the plaintiff. For ought we can discover from the case the defendant voluntarily waived any cross-examination.

Being in court when the plaintiff was sworn we must presume he had ample opportunity to cross-examine, if he desired to, the plaintiff, and we think, therefore, the evidence was properly received upon the first trial; and thereafter he having died before the trial now brought in review, his evidence was admissible, and having been received the court erred in striking it out. (Forrest v. Kissam, 7 Hill, 463; People v. Cole, 43 N. Y., 508; Cole v. People, 2 Lans., 374.)

Mr. Greenleaf says in section 163 of his work on evidence: “But where the testimony was given under oath in a judicial proceeding, in which the adverse litigant was a party and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between'the same parties.” (See, also, Doncaster v. Day, 3 Taunt., 262, opinion of Mansfield, Ch. J.; Glass v. Beach, 5 Vt., 172; Leighton v. Wilke, 4 S. & R., 203.) Sheriden v. Smith (2 Hill, 538) is distinguishable from the case before us. That was a case where the court said the evidence of a witness upon a former trial could not be given as a tacit confession of the facts so sworn to, though the party did not express a dissent. Here we have a case where the witness testified to facts pertinent to the issue in a former trial of this action and died after giving such testimony, and before the trial was brought up for review.

No objection was taken below that the record of the former trial, was not. produced when it was proposed to prove what the plaintiff testified to upon that trial. The- objection cannot now be taken. (Beals v. Guernsey, 8 Johns., 446; Tooley v. Bacon, 70 N. Y., 34; Crosby v. Day, 81 id., 242.)

Had the evidence of the plaintiff given upon the inquest been received and retained in the case, we must assume it would have obviated the ground upon which the nonsuit proceeded.

¥e are. of the opinion that the order granting a new trial was correct, and we must affirm it, with costs-.

Smith, P. J., and Haigi-it, J., concurred

Order affirmed, with costs.


text:
    THE CITY OF BUFFALO, Appellant, v. FREDERICK SCHLIEFER, Respondent.

      Givñ, action — a proceeding to recover a penalty is — a judgment of a justice’s court can only he reviewed on appeal.

    A proceeding instituted in a Justices’ Court by a city to recover the penalty imposed for a violation of a city ordinance is a civil action, and under section 351 of the old Code the judgment of the justice can only be reviewed by appeal.
    Appeal from an order of the Erie Special Term reversing a judgment and proceedings liad before one George Feldman, a justice of tbe peace in and for the city of Buffalo. Tbe respondent was charged before tbe justice with violating tbe provisions of sections 21 and 22 of chapter 10 of tbe ordinances of tbe city of Buffalo, which prohibit tbe selling of farm and garden produce except at “tbe groceries, stores and stands during market hours.” Tbe ordinances imposed a penalty of ten dollars for violation of them.
    Tbe respondent, upon being charged with such violation before tbe justice, denied it. There was evidence given on tbe trial of tbe issue upon both sides.
    The order appealed from was made oil the return of a writ of certiorari, issued to review tbe judgment.

      P. A. Matteson, for tbe appellant.

      G. P. Wheeler, for tbe respondent.
   Hardin, J.:

"Where a statute or an ordinance imposes a penalty, unless special modes are prescribed, tbe same is to be collected by an action at law. Such • an action is a civil action. (People v. County Judge of Rensselaer Co., 13 How., 400; People v. Colborne, 20 id., 381.) An action prosecuted to recover in behalf of a municipal corporation is none the less a civil action than one prosecuted by an individual. Tbe warrant in the Justices’ Court required tbe party to answer tbe city of Buffalo. Tbe action must be considered a civil one. It was not prosecutGd by or in behalf of tbe people. (Code of Pro., § 2.) The warrant upon which the respondent was arrested required him “ to answer unto the city of Buffalo for violation of the twenty-first and twenty-second section of the tenth chapter of laws and ordinances of the said city of Buffalo, entitled of markets,” etc. The justice “ fined ” him ten dollars and six dollars for costs. The justice’s return is dated August 16, 1879. August 5, 1879, a writ of certiorari was issued, signed by L. S. Oatman, special deputy clerk, returnable at a Special Term of this court.

At a Special Term held at Buffalo, Erie county, August 29,1879, the return was presented and the parties heard and the proceedings and adjudications of the said justice of the peace were held in all respects irregular, erroneous and void,” and they viere reversed. From that order and judgment on it the city of Buffalo has appealed to this court.

Section 351 of the Code of Procedure declared that the only mode of reviewing a justice’s judgment should be by an appeal as prescribed in chapter 5. That section and that chapter were in force when the justice rendered judgment herein, and it limited the right of the aggrieved party to an appeal.

Section 353 of chapter 5 of the Code required the notice of appeal to state the grounds upon which the appeal is founded.

The attempt to review the judgment of the justice by a certiorari returnable to the Special Term of this court was unauthorized. We do not see how the Special Term acquired any jurisdiction to review the justice’s judgment. Its order was, therefore, without warrant of law and should be reversed and the certiorari quashed. (People ex rel. Hallock v. Sleight, 2 Hun, 632, opinion of Talcott, J.) But it does not appear that the objection was taken in the Special Tern, and we must presume that, had it been, the same would have'' been sustained.

The writ may now be quashed, without costs to either party, as we must regard the whole proceeding irregular and unauthorized.

Order reversed, without costs, and writ quashed, without costs to either party.

Smith, P. J\, concurred; Haight, J"., not sitting.

So ordered.


text:
    ELLIOTT C. HALL and Others, as Administrators, etc., of WILLIAM HALL, Deceased, and ELIZA FLAGG, Appellants, v. MANLEY D. HOLT and Others, Respondents.

      When the plaintiff is entitled to enter a judgment for the amount admitted to he due— Code of Civil Procedure, sec. 511 — applies to equitable as well as legal actions.

    Where, in an action brought to foreclose a mortgage, the defendant, without denying any of the allegations of the complaint, alleges in his answer that a payment has been made upon the bond and mortgage, the plaintiff may admit the payment and move upon notice; under section 511 of the Code of Civil Procedure, for leave to enter judgment for the balance due under the allegations of the complaint, after deducting the payment.
    Appeal from an order denying the plaintiffs’ motion for leave to enter a judgment for the amount admitted to be due by the defendant’s answer.

      Johnson do Markham, for the appellants.

      Henderson c& Wentworth, for the respondents.
   Hardin, J.:

This action is brought to foreclose a mortgage. The whole amount is due. The defendant Holt alone appears and answers. He does not deny any portion of the complaint, but avers that the sum of $1,300 was paid and applied upon the bond and mortgage on the 1st day of July, 1875. The plaintiff then moves at Special Term, upon notice and an affidavit in which he admits the payment as alleged in defendant’s answer, for judgment for the balance due under the allegations of the complaint after deducting such payment. The Special Term denied such motion upon the ground and for the reason that the cause of action set forth in the complaint is single and indivisible, and the court has no authority to grant the relief asked for.

Section 511 of the Code of Civil Procedure provides: “ Where the answer of the defendant expressly, or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may in its discretion order that the action be severed, that a judgment be entered for the plaintiff for the part so admitted, and if the plaintiff so elects that the action be continued with like effect as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff’s election. If the plaintiff elects to continue the action his right to costs upon the judgment is the same as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded as upon final judgment in any other case.”

The language of this section is broad. It is not limited to any class of actions, but applies with equal force to actions at law and in equity. It gives a discretion to the court to allow actions to be severed where a part of the plaintiff’s claim is admitted to be just; and if the plaintiff elects to continue his action as to the part denied by the answer, that he may do so. If he does not elect to continue, then costs must be awarded as upon a final judgment in any other case.

In this case the plaintiff admits the payment averred in the answer. He elects not to continue the action as to that payment but only asks judgment for the balance, his due after deducting the payment.

I am of the opinion that the power given by this section is ample to grant the l’elief asked for. This action is one in which judgment only can be had upon application to the court, and this practice is in harmony with the practice provided for in section 512 of the Code of Civil Procedure, which has reference to actions upon contracts where the complaint demands judgment for a sum of money only.

In such cases if the defendant by his answer does not deny the plaintiff’s claim, but sets up a counter-claim amounting to less than the plaintiff’s claim, the plaintiff, upon filing with the clerk an admission of the counter-claim, may take judgment for the excess as upon a default for want of an answer.

Order reversed, with ten dollars costs and disbursements, with leave to renew motion at Special Term.

Smith, P. J., and Haight, J., concurred.

So ordered.


text:
    JAMES W. COMBS and SUSAN C. LITTLE, Appellants, v. MARY E. COMBS, Respondent.

      Costs — when the successful party on an appeal from the judgment of a Justices’ Courtis entitled to, of course— Code of Civil Procedure, secs. 3228, 3347.
    Section 3228 of the Code of Civil Procedure providing that the plaintiff is entitled to costs, of course, in the actions specified in the subdivisions of that section, applies to actions commenced in a Justices’ Court and taken by appeal to the General Term of the Supreme Court, and is not limited by subdivision 13 of section 3347 of the said Code to actions commenced in the courts specified in subdivision 4 of the latter section.
    Appeal from an order of the Monroe Special Term striking out the costs taxed on an appeal to this court.
    The plaintiffs brought this action for the recovery of money only/ for use and occupation, in a Justices’ Court, and recovered. The defendant appealed to the County Court, where the judgment was modified so as to stand for eighty-seven dollars damages. The defendant then appealed to this court and the judgment was affirmed, the decision being silent as to costs. The plaintiff taxed them and the Special Term, on motion, struck them out. The respondent claimed that section 3228 of the Code of Civil’ Procedure, under which the costs were taxed, did not apply to actions commenced in a Justices’ Court.

      Stull & Bennett, for the appellants.

      J. M. Dunning, for the respondent”.
   Hardin, J.:

Section 3238 of the Code of Civil Procedure entitles the plaintiffs to the costs of the appeal to this court.

That section declares the recovery of costs is regulated as follows:

“(1.) In an action specified in section 3228 of this act the respondent is entitled to costs upon the affirmance.”

Turning back to section 3228 we find in subdivision i: “An ■action * * * in which the complaint demands judgment for a sum of money only ” is specified.

Such an action is this one, in which we pronounced a judgment of affirmance.

The character of the action is distinctly stated in section 3228, and therefore the section in- terms applies to it, and the costs must be given, as expressly declared in section 3228.

No award of them by the court was necessary. They follow the affirmance as a matter of statutory right. (Gray v. Hannah, 3 Abb. [N. S.], 183.) The question is not affected by subdivision 13 of section 3347 of the Code of Civil Procedure.

We should reverse the order of the Special Term, with ten dollars costs and disbursements.

Smith, P. J., and Haight, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.


author: Haight, J.:

text:
    SAMUEL SEELY, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Practice — the court cannot, after granting a nonsuit, order the exceptions to he first heard at the General Term — Code of GivU Procedure, sec. 1000.
    Where in an action tried at the circuit, before the court and a jury, a nonsuit has been granted, the court cannot, since the passage of the Code of Civil Pro cedure, order the exceptions to be heard in the first instance at the General Term.
    Appeal from an order, made at the Rochester Special Term, denying, after hearing the argument of counsel, a motion made by the plaintiff, upon a case theretofore made and settled, to have vacated and annulled an order made by the judge presiding at the trial of the action at circuit, directing the exceptions to be heard in the first instance at the General Term, and for an order that judgment be entered by defendant for its costs. By the case as settled, on which the motion was made, it appears that “ the court thereupon granted a nonsuit and decided that the plaintiff be nonsuited, to which decision of the court granting such nonsuit plaintiff’s counsel duly excepted. The judge presiding at the trial directed an order to be entered that the exceptions so taken be heard in the first instance at the General Term, and that judgment be suspended in the meantime. The plaintiff immediately at same term made a motion on the judge’s minutes for a new trial upon the exceptions and because the decision is contrary to the evidence and contrary to law, which motion the judge entertained and on hearing counsel for the respective parties ordered that the said motion for a new trial be denied, and the plaintiff duly excepted to such decision.”

      Stephen K. Williams, for the appellant.
    IF. LI. Adams, for the respondent.
   Haight, J.:

This cause was tried at the "Wayne Circuit in February, 1880. A jury was empanneled and sworn, and at the end of the evidence the defendant moved for a nonsuit, which was granted by the court, and exceptions were taken by the plaintiff. The justice presiding at the trial thereupon ordered that the exceptions be heard in the first instance at the General Term/ Thereupon the plaintiff moved, at Special Term, to vacate the order. The Special Term denied the motion, and from such order the plaintiff appeals to this court. Under section 265 of the Code of Procedure the Court of Appeals have held that in an action tried at the circuit before the court and a jury, the exceptions taken to a nonsuit may be ordered to be heard in the first instance at General Term. (Lake v. The Artisans' Bank, 3 Keyes, 276.) This decision settles the practice under the old Code. It now remains to be seen whether the practice has been changed by the Code of Civil Procedure. Section 1000 provides: “ Upon the application of a party who has taken one or more exceptions, the judge presiding at a trial by a jury, may, in his discretion, at any time during the same term, direct an order to be entered that the exceptions so taken be heard in the first instance at the General Term, and that judgment upon the verdict be suspended in the meantime.” From the language quoted it will be seen that the judgment upon the verdict is to be suspended. If there is no verdict there is nothing to suspend.

This court, in the case of Van Doren v. Horton (reported in 19 Hun, page • 7), held that a motion for new trial could not be made upon the judge’s minutes where a nonsuit had been granted ; that the granting of a nonsuit was, in effect, a trial by the court under section 1346 of the present Code. The court was giving construction to section 999 of the Code. That section provides that “the judge presiding at a trial by jury may, in his discretion, entertain a motion made upon his minutes at the same term to set aside the verdict and grant a new trial upon exceptions.” If there was no verdict rendered by the jury, then there would be nothing upon which the court could entertain a motion upon the minutes. If the motion cannot be entertained, it follows that the case must go to the General Term in the first instance, and no order to that effect is necessary. I am, therefore, of the opinion that the practice adopted by the court was irregular.

Order appealed from reversed and motion granted.

Smith, P. J., and Hardin, J., concurred

So ordered.


author: Haight, -I.:

text:
    THE BOARD OF SUPERVISORS OF MONROE COUNTY, Respondent, v. FREEMAN CLARKE, Appellant, Impleaded, etc.

      County treasurer — when an increase of his duties does not discharge his sureties — his boohs and reports are admissible as against his sureties — interest — when it is allowed upon an unascertained balance.

    Upon the trial of this action, brought against the sureties upon the official bond of a county treasurer, it appeared that aftor its execution his duties and responsibilities had been greatly increased by acts of the legislature and resolutions of the board of supervisors, he having been required thereby to borrow large sums of money, and issue bonds therefor, to pay bounties to recruits. Some of the defalcations complained of occurred in the bounty fund, and the residue in the other funds intrusted to his care.

      Held, that the sureties were not liaule for the wrongful acts or omissions of the treasurer in so far as they affected the bounty fund, but that they were liable for his failure to faithfully care for and pay over the other funds intrusted to his care.

      The books which the county treasurer is required by law to keep, and his accounts and official reports to the board of supervisors, are admissible as against him and his sureties to prove what funds have come into his hands.
    When a county treasurer fails to pay over money in his hands interest should be charged upon the amount found to be due, from the time that his successor qualified and entered upon the discharge of the duties of his office.
    Appeal from a judgment for $75,068.68 in favor of the plaintiff, entered upon the report of a referee.

      Oogswell & Bentley, for the respondent.

      J. A. Stull, for the appellant.
   Haight, -I.:

This action is brought against the defendant as surety of Jason Baker, on his official bond as county treasurer of Monroe county, during the years 1861, 1862, 1863, and part of 1864. The bond ran to the plaintiff as obligee, and was conditioned : “ That if the said Jason Baker shall faithfully execute the duties of said office, and shall pay according to law all moneys which shall come'into his hands as such county treasurer, and shall render a just and true account thereof to the board of supervisors, or to the comptroller of the State of New York when thereunto required, then this obligation shall be void, but otherwise shall remain in full force and effect.” Subsequently the duties of the treasurer were greatly increased by resolutions of the board of supervisors and acts of the legislature. The war of the rebellion coming on, he was required to go into the market and borrow large sums of money and issue bonds of the county therefor, for the purpose of paying bounties to recruits. Such funds passed into his hands as treasurer. Some of the defalcation complained of occurred in this bounty fund. The defendant now claims that such change in the character of the office greatly increased his risk as surety upon the bond, and the imposition of such new duties operates to discharge him from liability as surety. The referee has held that such surety is discharged as to the additional burden placed upon the treasurer subsequent to the giving of his official bond, and that he is not liable for the defalcation in the bounty fund; but as to the other duties of the treasurer, and obligations existing at the time of the executing of the bond, the sureties remain bound. The question here to be passed upon, therefore, is whether or not the imposition of the new duties discharged the defendant from all liability. There can be no doubt that as between private parties the law is, that any alteration in the obligation, in respect of which a person has become surety, without the consent of the surety, discharges him from all liability. As to ■the liability upon official bonds, where the duty of the officer has been changed, there has been some conflict in the authorities, but the law upon the question was settled in this State by the Court of Appeals in the case of People v. Vilas, reported in 36 New York, at page 459. That was an action against the sureties upon the official bond of a loan commissioner. Subsequently, and by act of the legislature, there was transferred to such commissioner, for the same purpose, moneys formerly held by another commissioner. The commissioner had become a defaulter .to the amount of five hundred dollars in the funds so transferred to him, and to a larger amount in the original funds. It was held that the sureties were liable for the amount of the defalcation in both funds. The rule in that case was declared to be, that any alteration, addition or diminution of the duties of a public officer made by the legislature, does not discharge his official bond, or the sureties thereon, so long as the duties required are the appropriate functions •of the particular office; that all such alterations are within the ■contemplation of the parties executing the bond; that imposing duties of another description and not appropriate to the office, would discharge sureties not coming within such contemplation. Hunt, J., in delivering the opinion of the court, then proceeds, saying: “ If, however, this statute did alter the nature and duties of the office of commissioner in the manner alleged by the respondent, so that the peril of the sureties was increased, did it operate to release them entirely, or only as to liabilities arising from such additional duties ? The case of the sureties for the performance of his duties by a public officer, is not precisely the same as if their principal was a party to an ordinary civil contract. His position is rather that of an agent or servant of the government, than a contracting party. In the present case certain duties were imposed upon commissioners by the laws in existence prior to 1850 when the sureties assumed their responsibility. A subsequent law imposing additional duties, does not impair the prior laws, or the obligations under them. * * * The superadded duties have not affected the original duty; it remains in force, and the obligation for its performance is the same as if no new law had been passed. Why should not the obligation of the sureties for the original duty also continue ? ” From this opinion it is quite evident that if the court had not held that the sureties were liable for the default occurring in both funds, they would have been held liable for the default in the original fund. In the case at bar, the giving to the treasurer the care of the bounty fund in no way changed his duties or liabilities as to the other funds that were under his control. His duties in reference thereto remained the same and unchanged. If the imposing of the new duty, caring for the bounty fund, was not within the contemplation of the sureties at the time of executing his official bond, they may properly be relieved from liability as to such fund, but why should they be relieved from liability as to the other funds which by law the treasurer was the custodian of, at the time of executing the bond % It appears to me that there is no good reason for relieving them where the account of the fund is kept separate and distinct. The Court of Appeals of Virginia have so held in the case of the Commonwealth v. Holmes, reported in 25 Grattan, pages 771 to 778. In that case the action was against sureties for a town collector. There had been superadded to his duties that of constable in relation to the collection of small claims, and it was argued that such superadded duties relieved the sureties upon his bond as collector from liability. The court, after remarking that the duties imposed would, under the English authorities, discharge his sureties, as appeared from the authority of Pybus v. Gibbs, says : “ The principle thus formed by the English decisions does not commend itself to the judgment of this court as just and reasonable, and we should hesitate to follow it were there no authorities against it, but we have against it the opinion of the Supreme Court of the United States, in which, in an analogous case, Judge Story says: ‘ The bond should be held good to the extent of the duties lawfully covered thereby.’ This, we think, the more just and equitable rule.” The case alluded to in the Supreme Court of the United States, is reported in 9 Wheaton, 720; United States v. Kirkpatrick. That was an action upon an official bond given by a collector of direct taxes. Subsequently, by act of congress, he was also made collector of internal duties. The district judge, in trying the case, held that the sureties were not liable for the- defaults of the collector in the collection of internal duties, but that they were liable for the defaults in collection-of direct, taxes. The Supreme Court of the United States on review held that that was the true construction of the bond. The case of Hatch v. Inhabitants of Attleborough (reported in 97 Mass., 553) was an action upon the official bond of the town treasurer. The treasurer had been authorized by the town to hire recruits to fill its quota of soldiers, and he was authorized to pay a certain sum as bounty. The citizens of the town voluntarily contributed a large sum of money and paid the same over to the town treasurer for the purpose of having the same expended by him, together with the town moneys, in hiring recruits and paying bounties. Whilst it was held that the sureties were not liable for the money so voluntarily contributed and paid over to the treasurer, yet they were liable for the funds of the town that came into his hands as treasurer. Thus it will be seen that we have respectable authority holding that while sureties are not liable upon official bonds by reason of the subsequent imposition of new and different duties, materially changing the character of the office, they still are liable for the faithful discharge of the duties of the officer, existing at the time of signing the bond, where those duties have not been substantially or materially changed.

The appellant claims that the referee erred in deciding that there was anything whatever due on the bond; that the balance found by him to be due was based upon a fallacy, to wit, the adoption of the sum of $2,653.57 as due on the 1st day of October, 1861, and starling the account with that balance from that date. It is argued that there is no evidence showing that there was any such sum actually on hand at that time. It will not here be contended that the sureties upon this bond can be held liable for any default of the-treasurer during his previous term of office, and when the defendant was not a surety upon his bond. It is only for the defaults occurring during the term of office for which he was surety that he can be held liable. If, therefore, the treasurer did not have this sum on hand on the 1st day oí October, 1861, then the referee was in error in starting the account from that date, and with that sum on hand as a balance. The treasurer is by law required to keep books of account of the various funds which come into his hands as treasurer. He is also required to make an annual report to the board of supervisors. The condition of the bond is that he will render a just and true account to such board. His books and accounts and official reports made to the board of supervisors are evidence against him and his sureties.

In making his report to the board of supervisors in October, 1861, he reported this sum as balance on hand. (Folio 89 of exhibits.) In his report next year, at folio 170 of exhibits, he reports the same sum as balance from last year. In his settlement book of 1861, the same sum is entered as balance. From these books and reports it would appear that this sum was actually on hand. They at least become prima fade evidence to that effect; and in the absence of proof showing that no such sum was in fact on hand, we must hold that the referee was correct in his finding upon this question.

It is claimed again, on the part of the appellant, that the referee erred in deciding that no part of the balance which he found to be unaccounted for, and due from Baker, the treasurer, to the county at the time of his discharge, was left in the treasury. Jason Baker, the treasurer, died on the 86th day of September, 1864, eight days before the end of his term. Samuel Scoville was his ’ successor in office, and he entered on the duties of his office on the 4th day of October, 1864. All the accounts charged against the deceased treasurer, allowed by the referee, came to his hands before his death.

The statute requires that upon the de^th of a county treasurer, all the books and papers belonging to his office, and-all moneys in his hands by virtue of his office, shall be delivered to his successor in office, upon the oath of his executor or administrator. Scoville, his successor, testified that no money was paid over to him for or on account of Baker, as treasurer. Mr. Monger, was his executor, ard he testified, at folio 795 of case : “ I do not think there were any assets in money — nothing but obligations of various kinds, which I converted into money.. I do not think there was over ten dollars in money.” That he does not recollect of there being any bank account where there was anything coming to him as treasurer; that he found where he had his accounts with one or two banks, but that there was nothing to his credit in any of the bank accounts. In answer to the question as to whether any security or securities payable to Jason Baker, as treasurer, were assigned to him, as such, coming to his knowledge, the executor answered: I cannot answer positively; my impression would be there was very little, if any; about everything was in his name individually.” From this evidence, I am of the opinion that the referee properly found that the balance unaccounted for was not in the treasury at the time of his decease.

Again, it is claimed that no demand or request for the payment of the balance wras ever made, either to Baker or to Baker’s executors, after his death, and for this reason no recovery can be had. Baker was a public officer. He should have had on hand upwards of $36,000 in cash. As treasurer of the county he had no right to invest the same in individual property of his own. If it was not on hand, it was because he had wrongfully converted it, for which he would be liable criminally. In such cases no demand is necessary before action is brought to recover the same. The condition of the bond does not require it. The condition is that he shall pay according to law, not wpon demand, all moneys which shall come to his hands ; that he shall render a just and true account thereof, etc. His last report rendered was not a just and true account. He did not pay according to law these moneys, nor account for the same. On his death his executor did not pay over the moneys on oath, as he was required to by law, and for the very good reason that they were not found on hand.

At the annual meeting of the board of supervisors in 1863, there was raised the sum of $53,500, to pay bonds falling due on the fifteenth day of February following, which bonds had been issued by the treasurer of the county, under and by virtue of a resolution of the board of supervisors, passed the 21st day of November 1862, for the purpose of borrowing money upon the credit of the county, with which to pay bounties to volunteers. This item does not appear in the column of debit items eliminated from the amended bill of particulars, page i, sundry exhibits.

Under the ruling of the referee that the surety should not be held liable for defaults occurring in the bounty fund, we are unable td see why this item should not have been included. Upon reference to the revised bill of particulars, we find : “ Credit item number 124, for interest on bounty bonds, $7,000 ; ” also, credit item number 126, bounty bonds of 1862, $33,000; ” making a total of $40,000, which appears to have been paid out of this fund of $53,500; and these items do not appear in the column of credit items eliminated from the bill of particulars. Deducting the $40,000 from the $53,500, leaves a balance unaccounted for of $13,500. Under sections 5, 6 and 19 of chapter 15 of the Laws of 1863, the board of supervisors were authorized to raise money by tax to pay off the bonds theretofore issued, and providing that the surplus, if any, thereafter, should be paid into the county treasury for the ordinary expenses of the county. It therefore becomes necessary to inquire whether this $13,500 was transferred to the general fund and used in paying the ordinary expenses of the county. Upon an examination of the case, we are unable to find any evidence showing that this was ever done. We cannot assume that it was. Large sums appear to have been taken by the treasurer and converted to his own use, and, from aught that appears, this item may have been one of the sums converted. We are, therefore, of the opinion that the sum of $13,500 should have been eliminated from the amended bill of particulars.

From the report of the committee appointed to examine the books and accounts-of the treasurer (appearing at page 54 of the exhibits), it appears that the sum of $29,333.07 had been collected by the treasurer during his previous term of office and had not. been accounted for. It subsequently appeal’s that a settlement took place between the treasurer and the county by which he was-allowed a salary, above amounts retained, of $4,000 per year, and also compensation, paying bounties to volunteers, of $1,243.57 and the balance was charged over to him and accounted for. The-treasurer in his annual report to the board of supervisors reports this settlement in the following words: “ Herewith is also a statement of returned taxes paid into this office from the year 1852 to 1862, inclusive, which I take great pleasure in saying is satisfactorily and amicably adjusted.” Then follows his report in detail, with, balance as casli on kancl. Tkis report íurniskes prima facie evidence tkat tke money was in fact paid into tke treasury, and in tke absence of evidence showing tke contrary we must hold tkat tke finding of tke referee, was correct.

Other questions were raised on tke argument pertaining to various items in the account passed upon by tke referee, but after a review of the evidence we are of tke opinion tkat tke findings of tke referee are correct.

Tke amount so found due by the referee was by law required to be paid over to Mr. Baker’s successor in office upon kis qualifying and entering upon tke discharge of kis duties. Tkis was not done. Tke county was entitled to interest upon suck sum from that time. This is not an unliquidated claim, within tke authorities, where interest has been refused.

Judgment reversed and new trial ordered before another referee, with costs to abide tke event, unless tke plaintiff stipulates within twenty days tkat judgment be reduced in tke sum of $13,500, with interest thereon from tke 1st day of October, 1864. If stipulation is given to tkat effect, tke judgment affirmed for tke amount so reduced, without costs of tke appeal to either party.

Smith, P. J., and Hardin, J., concurred.

So ordered.


text:
    WILLIAM D. SHIPMAN, as Assignee, etc., Plaintiff, v. HENRY L. LANSING and JAMES M. SMITH, Trustees, etc., Defendants.

      Set-off — when allowed in case of insolvency.

    The plaintiff, as the assignee of an insolvent firm, sought to recover from the defendants moneys held in trust for one of the partners, to the possession of which he had become entitled after the date of the assignment. The indi vidual debts of the partners had been paid out of their private property. At the time of the assignment the firm was indebted to the defendants for trust moneys deposited with it.

      Held, that the defendants .were entitled to set-off the amount due from the firm, against the amount due to the said partner.

      This controversy was submitted upon agreed facts as provided for by tbe Code of Civil Procedure.

      Sprague, Milburn and Sprague, for the plaintiff.

      Livingston Lansing, for the defendants.
   Haight, J.:

The facts agreed upon are in brief and in substance as follows: William Butler Duncan, William Watts Sherman and Francis H. Grain were partners, doing a banking business in the city of New York, under the firm name and style of Duncan, Sherman and Company. The firm, and the individual members thereof, became insolvent, and on the 27th of July, 1875, made an assignment for the benefit of creditors, to the plaintiff, of all their individual and co-partnership property. The defendants, as trustees under the last will and testament of Henry B. Gibson, deceased, held in trust the sum of $37,500, which belonged to William Watts Sherman, one of the assignors, upon the death of his mother, which occurred on or about the 11th day of March, 1878. Upon her death, and by reason of such assignment, the right to such fund vested in the plaintiff. Prior to, and at the date of the assignment, the defendants had on deposit with the firm of Duncan, Sherman and Company, of such trust funds, the sum of $1,555.73. The individual debts of the members of such firm have been paid from their private property.

The court is now asked to determine whether the- amount of such deposit is a lawful set-off in favor of the trustees.

It is a rule of equity that cross demands be set off against each other, if from the nature of the claim or situation of the parties justice cannot otherwise be done. Insolvency of one of the parties is a sufficient ground for an allowance of a set-off in equity. The Code of Civil Procedure provides (section 501) that counterclaims must tend in some way to diminish or defeat the plaintiff’s recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents and in favor of the defendant, or of one or more defendants, between wdiom and the plaintiff a separate judgment may be had in the action : 1. A cause of action arising- out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract existing at the commencement of the action.”

The claim of the defendants against said firm is one arising on contract, and is within the second subdivision of this section.

Section 507 of the Code of Civil Procedure provides: “A defendant may set forth, in his answer, as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable,” etc. Under this section the defendants are empowered to set forth in their answer an equitable, counterclaim as well as legal.

If this firm had been creditors of the defendants at and before the making of this assignment, the claim of the defendants would have been an equitable offset within the case of Smith v. Felton (reported in 43 N. Y., 419), which case was followed in Smith v. Fox (48 N. Y., 674), and quoted approvingly in the case of Coffin v. McLean (80 N. Y., 560, 564). By the assignment in question, the assignee of such firm became vested with this claim, and he now, as such assignee, is a creditor of the defendants. The assignee as such, takes such rights as the assignor possessed at the time of the assignment. He takes subject to all the rights and equities of the defendants. Their rights and equities remain the same as if the assignment had not been made. It therefore appears to me that the true test of the plaintiff’s rights herein is to inquire what their rights would have been had the assignment not been made. Suppose, therefore, that Mr. Sherman had brought action against these defendants for this sum. They then would have the right to answer and claim that he was insolvent, that he was a member of the firm, that the firm was insolvent, and had made an assignment for the benefit of creditors. That the firm at the time of making such assignment was owing the defendants the sum of $1,500.73 ; that his individual debts had been paid from his private property, and that he, as a member of such firm, was liable for the firm debts, their assets not being sufficient to pay in full.

Can it be doubted that under such circumstances the defendants would have the right to have the amount of their claim against the firm offset as against Mr. Sherman, the individual member of the firm ? I think not. Their rights are within the rules of equity as laid down in the cases cited. The question, therefore, must be answered in favor of the defendants.

Judgment ordered accordingly, with costs.

Smith, P. J., and Hardin, J., concurred.

Judgment ordered for defendants, with costs.


text:
    PHILIP KRUMM, Respondent, v. SUSANNAH BEACH and ELIAS W. BEACH, Appellants.

      Fraudulent representations — a return of the property received is not a prerequisite to an action for deceit — what evidence is admissible in such an action — when the pa/rlies are concluded by the prices fixed by their contract— liability of one who accepts the fruits of the act of another, assuming to act for her, for his frauds.

    The plaintiff and the defendant E. W. Beach entered into an agreement whereby the latter agreed to sell and convey to the former a tract of land in Allegany county, containing eighty-six acres, for the consideration of $2,400, which the plaintiff was to pay by conveying a house and lot in Buffalo, valued in the contract at $1,400, by assigning a bond and mortgage for $500 owned by him, and by giving back a bond and mortgage for $500 on the Allegany county land. The land in Allegany county was owned by the defendant Susannah, the mother of E. W. Beach. The agreement was carried into effect and the necessary conveyances and assignments executed and delivered. Thereafter the plaintiff brought this action to recover damages for representations made to him by E. W. Beach, by which he was induced to enter into the contract, and which were alleged to have been falsely and fraudulently made.

      Held, that as the plaintiff did not seek to rescind the contract it was not necessary for him to tender a reconveyance of the land before bringing the action.
    Upon the trial, the plaintiff was allowed, against the defendant’s objection and exception, to show the value of certain lands which Beach had falsely stated were part of the lands to be conveyed.

      Held, no error; that by means of such proof the extent of the plaintiff’s damages could be ascertained.
    The defendant offered to prove the yalue of the house and lot in Buffalo.

      Held, that the evidence was properly rejected; that as by the agreement the defendant had agreed to accept it for $1,400, its real value was, in the absence of any allegations of fraud, immaterial.
    It was not shown that the defendant Susannah ever authorized E. W. Beach to ■ make any of the representations respecting the lands conveyed by her, or that she had any knowledge that they had been made, either before or after the execution of the contract or deed, nor was it shown that she ever authorized him to act as her agent in the sale of the land.

      Held, that by accepting a part of the fruits of the fraud practised by her son, she ratified the agency assumed by him, and became liable for his fraudulent representations.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    On the 15th day of July, 1876, the defendant Elias W. Beach made a contract in writing with the plaintiff, by which, for the consideration of $2,400, he agreed to convey to the plaintiff a tract of land in Allegany county, in this State, containing about eighty-six acres. By the same paper the plaintiff agreed to pay such consideration as follows: By the assignment to Elias "W. Beach of a mortgage on property in Erie county, $500; by the conveyance of a house and lot on Eolsom street, in the city of Buffalo, $1,400; by a mortgage on the Allegany county land, collateral to the plaintiff’s bond, $500.
    On the 22d day of July, 1876, the contract was performed by the respective parties, the defendant Susannah Beach, who was the sole owner of the lands, executing a deed to the plaintiff of the Allegany county lands, and the plaintiff executing to her a deed of the Eolsom street lot, and a bond for the payment of $500, with a mortgage collateral thereto on the Allegany county lands. At the same time, and in further performance of the contract, the plaintiff executed to the defendant Elias W. Beach an assignment of a bond and mortgage for $600 executed to him by one John Huber.
    It was' alleged in the complaint and claimed on the trial that, as an inducement to the plaintiff to enter into the contract, false representations as to the situation, condition and value of the Allegany county lands were made to him by the defendant Elias 'W. Beach.
    On the trial of the action, the plaintiff offered to show that the value of twenty acres of land, which it was claimed that the defendant Elias W. Beach had pointed out to the plaintiff as a part of the lands which he proposed to sell, but which in fact was not embraced in the deed, was of the value of. twenty dollars per acre.
    On the trial, the defendants offered to show what was the value of the Eolsom street house and lot at the time of the contract and the conveyance of the same. The evidence, upon the plaintiff’s objection, was excluded.
    It was proved upon said trial that the value of the Allegany county lands so conveyed to the plaintiff was at least $300, and that the same had not been reconveyed by the plaintiff, and that he had never, offered to reconvey the same.

      David F. Day, for the appellants.

      Osgoodby and Moot, for the respondent.
   Hardin, J.:

Apellants’ counsel is mistaken in supposing a tender back of a conveyance of the lands received, or mortgage and bond delivered to plaintiff, as a necessary condition precedent to a recovery for damages sustained by the fraudulent representations made by Elias W. Beach, Culver v. Avery (7 Wend., 380) and cases cited by him from Cobb v. Hatfield (46 N. Y., 533), and Guckenheimer v. Angevine (81 id., 395), were unlike this one. They were cases where an attempt was made to rescind the contract for fraud.

This is an action for fraud and deceit, and the fraudulent representations form the gravaman of the action. (7 Wend., 380, supra; Clark v. Baird, 9 N. Y., 183.)

Evidence was given tending to establish that Elias W. Beach fraudulently made false representations as to the lands in the negotiation for the sale, and that the purchaser, relying thereon, agreed to pay $2,400 for the premises, and the extent of the damages suffered by the plaintiff by reason thereof. Thus a cause of action was made out against him.

In.the agreement to convey he is described as a principal, and the only vendor of the lands. It was competent as against him to show by the opinions of witnesses the value of the piece represented to be sold, which was not in fact included in the conveyance to the plaintiff. The value of the lands so included, per acre, appeared in the case, and by means of such proof the extent of the damages sustained by the -plaintiff was ascertainable. Such opinions were held competent in Clark v. Baird {supra).

The $2,400 to be paid by the plaintiff was named in the contract between the parties, and its manner of payment was, viz., “ $500 to be paid by bond and mortgage given by the plaintiff on such land; another $500 was paid by the transfer of the Huber bond and mortgage, and the remainder of $1,400 by the conveyance of the Folsom street house and lot,” as specified in the contraet.

The offer to show the value of the Folsom house and lot was rejected, and the defendants excepted. There was no counterclaim for fraud in respect to it, and it was, therefore, immaterial what its value was. The defendants had agreed to accept it for $1,400, and by the agreement wrere concluded as to its price and value.

The general exception to the charge of the court was so broad that it presents no question for review here. (Newell v. Doty, 33 N. Y., 83 ; Wheeler v. Billings, 38 id., 263 ; Ayrault v. The Pacific Bank, 47 id., 570.)

The verdict and judgment should be sustained as against Elias W. Beach.

But as to the female defendant, another question is presented by this case. She did not join in the contract for the sale of the lands to the plaintiff.

The case states, viz., no proof was given upon said trial that the defendant Susannah Beach ever authorized the defendant Elias W. Beach to make any of the representations respecting the lands conveyed by her to the plaintiff, or that she had any knowledge that such representations had been made either before or after the execution of said contract or deed.”

At the close of the evidence the court was asked to direct a verdict in her favor and declined, and an exception was taken by her to such refusal.

No submission was made to the jury as to whether Elias W. was agent for his mother, the female defendant. Nor does the evidence disclose that she ever authorized him to act in the premises as her agent in the sale of the lands.

In Bennett v. Judson (21 N. Y., 238), it appeared that the vendor had an agent who had committed a fraud unauthorized and unknown to him, but that the vendor had participated in the fruits of the fraud of his agent, and he was therefore liable.

In Baker v. Union Mutual Life Insurance Company (43 N. Y., 288), there was an appropriation of the funds arising out of the wrongful act of the agent, and the principal was therefore held liable.

No agency to sell the lands as the property of the mother was revealed by the evidence in the case before us.

But it is apparent from the evidence that the female defendant accepted part of the fruits of the fraud practiced by her son, assuming to act as her agent, and we think she thereby ratified his assumption of agency, and is therefore liable for the fraud practiced by him.

The judgment should be affirmed.

Judgment affirmed.

Smith, P. J., concurred; Haight, J., not sitting.


author: Haight, J.;

text:
    A. DE LOS GALLUP, as Administrator, etc., of PHEBE GALLUP, Deceased, Respondent, v. JOHN MILLER, Appellant.

      Agreement to hold a deoree for the foreclosure of a mortgage for a year — what damages are recoverable for a breach of it— what notice of sede must be given under a decree of foreclosure.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    After the entry of the judgment herein, Phebe Gallup died, and the plaintiff, as her administrator, was substituted as plaintiff.
    The deceased, Phebe Gallup, was the widow of Chester Gallup, and as such was entitled to a dower interest in the real estate of which he died seized. She had executed a mortgage upon her interest in the, real estate for the sum of $340, whicli had become due and payable. .On or about the 27th day of May, 1877, and after the commencement of an action for the foreclosure of the mortgage, Mrs. Gallup and the defendant entered into an agreement, in and by the terms of which the defendant, in consideration of the sum of ten dollars to him paid by her, promised and agreed to procure an assignment of the mortgage, and that the case should be continued until the decree was entered; that he would carry the mortgage and decree, and forbear the collection thereof by sale of the premises for one year from and after the 27th day of May, 1877. Pursuant to such agreement the defendant did procure an assignment of the mortgage. The action was duly continued to the entry of a decree of foreclosure and sale. Subsequently the defendant violated his agreement by selling and assigning the mortgage and decree of foreclosure to one Clementiny Crouch, who caused the pi’emises to be sold under the decree before the expiration of the year, in consequence of which Phebe Gallup was deprived of her dower interest in the premises, and the benefits of her agreement with the defendant. The premises only sold for the amount of the decree.
    The referee has found that the value of her dower interest, as computed according to the annuity tables, was the sum of $560.99 that the amount of the decree, with interest and taxes, amounted to the sum of $477.46, leaving a balance of eighty-three dollars and fifty-three cents, for which sum he gave judgment.
    The court at General Term said : It is now claimed that the referee adopted an improper measure of' damages; that the true measure of damages would be the use of her interest in the premises from the time that it was sold, and she deprived of the possession thereof up to the end of the year. I am, however, of the opinion that the referee adopted the proper rule of damages. It was by reason of the breach of contract that Mrs. Gallup lost her dower interest in the real estate. All losses and damages arising from breach of contract may be recovered,' where they can be rendered reasonably certain by evidence, and have actually resulted from the breach, and are not speculative and uncertain.
    The defendant when he made the agreement must have known that the purpose of Mrs. Gallup was to procure forbearance, so that she might raise the money and pay the judgment and so save her interest in the farm. She had the right to expect that the -agreement would be kept and performed on his part, and therefore was not required to have the money on hand to pay the judgment until the expiration of the year. The claim was in judgment, and no further personal service of notice of sale, upon her was required. Unless she should happen to see the published notice of sale the sale could be made without her knowledge. The sale being upon a decree and foreclosure of the mortgage passes title absolutely and she has no further right to redeem. Iler intee’est in the i-eal estate is absolutely lost, and it appears to me that the difference between the value of her interest at the time and the amount of the decree with taxes affords the true measure of damages. I have been unable to find any case in which this precise question has been passed upon.”

      George O. Greene, for the appellant.

      A. Hamilton Webster and Benjamin J. Huntwig, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., concurred.

Judgment affirmed.


author: Smith, P. J.;

text:
    JOSEPH F. McCORMICK, Plaintiff, v. THE CITY OF SYRACUSE, Defendant.

      Salary — construction of a charter authorizing the fire department to fix the salaries of its employes subject to the approval of the common councils- the latter body has no power to originate any measure or fix any amount — charier of the city of Syracuse —1877, chap. 79, sec. 7.
    Controversy submitted without-action, in pursuance ..of section 1279 of the Code of Civil Procedure.
    The charter of the city of Syracuse provides that the salaries ot the several officers of the fire department of said city, and of all other persons employed by said department, “ shall be fixed by the board of fire commissioners subject to approval by a majority vote of the common council.” (1877, chap. 79, § 7.) The plaintiff was a fireman employed by the defendant, and acted as a ladderman. Prior to the 15th of March, 1880, the salary of a ladderman had been fixed at $480 a year. On the 7th of February, 1880, the board of fire commissioners fixed the salary of laddermen at $600 a year, subject to the approval of the common council. On the 15th of March, 1880, at a meeting of the common council, a resolution was adopted-approving of the said salaries so fixed by the fire commissioners to the amount of $540 a year for each ladderman, and no more. That resolution remains unrescinded and no further action has been taken on the subject by the common council or the board of fire commissioners, and. the board has continued to pay the plaintiff at the rate of $480 a year.
    The court at General Term said: “ The plaintiff now seeks to recover the additional sum of five dollars a month for eleven months by virtue of the said action of the board and the common council, and the only question is whether such action entitles him to it. We think it does not. Under the charter, all measures fixing the salaries of persons employed by the fire department must originate with the board. The common council has no power in the matter, except to approve or disapprove the action of the board. In the present case, the resolution of the board to increase the salary to $600, not having been approved by the council, was of no effect, and the salary remained as it was before the resolution was passed. The proposition of the council to fix the salary at $540 a year was a mere nullity, that body having no power to originate such a measure, and the proposition never having been adopted or acted upon by the board.”

      W. G. Huger and Louis Marshall, for the plaintiff.

      M. A. Knapp, for the defendant.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred.

Judgment ordered for the defendant, with costs.


text:
    WILLIAM J. WILLIAMS, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Costs — Section 3245 of the Code of Civil Procedure — wlio is “ the chief fiscal offices' of the corporation ” within the meaning of— Charter of the city of Buffalo.

    Appeal from an order of t]ie Erie County Court, affirming a taxation of the plaintiff’s costs on a verdict in his favor.
    The claim on which the plaintiff recovered in this action was for work done in building an engine-house for the city of Buffalo. The ground on which the appellant sought to set aside the taxation of costs was that the claim was not presented for payment to the comptroller of the city before suit.
    Section 3245 of the Code of Civil Procedure provides that “ costs cannot be awarded to the plaintiff, in an action against a municipal corporation in which the complaint demands a judgment for a sum of money only, unless the claim upon which the action is founded was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation.”
    The comptroller of the city of Buffalo is charged with the superintendence of the fiscal concerns of the city and the management of the same. (Charter, Laws 1870, chap. 519, tit. 2, § 27.) And it is made his duty, by and with the advice and consent of the common council, to appoint an auditor who shall examine and report upon all unliquidated claims against the city before the same shall be audited by the common council. (Id.) Money shall only be drawn from the treasury by warrants authorized by the common council and signed by the mayor and city clerk and countersigned by the comptroller. (Id., § 30.) No action or proceeding to recover or enforce any unliquidated claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council for audit, * * * and the common council before auditing shall refer it to the auditor. (Id., tit. 3, § 7.) The claim in suit was presented to the common council, and was by the council referred to the auditor, as provided by the charter.
    The court at General Term said: “Was not the presenting of the claim to the common council a sufficient compliance with section 3245 of the Code ?
    The case of Butler v. The Oily of Rochester (4 Ilun, 321), arose under chapter 262 of 1859, the provisions of which were (in all respects material to the question before us) similar to those of the section of the Code above quoted. That act is no longer in force, and the section of the Oode is a substitute for it. It was held in the case of Butler that the presentation of a claim to the common council was a sufficient compliance with the act.of 1859, especially when the corporate powers are so distributed that the officer who, from his duties, might be assumed to be the chief fiscal officer of the corporation, has no power to pay the claim if presented to him. The decision seems to be an authority for the order appealed from, and in concurrence with it, we affirm the order.”

      E. O. Idawlcs, for the appellant.

      Giles E. Stilwell, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred..

Order of Oounty Court affirmed, with ten dollars costs' and disbursements.


text:
    MARY A. WARNER, as Landlord, Respondent, v. MERCY HENDERSON, as Tenant, Appellant.

      A judgment of a County Court affirming a final order or judgment of a justice of the peace in summary proceedings is appealable to the General Term -* Code of Civil Procedure, sea.' 2260 — when an appeal lies under section 1340 of the said Code.

    Appeal from a judgment of the. Orleans County Court, affirming a final order or determination made by a justice of the peace in summary proceedings to remove a tenant, commenced in October, 1879.
    The court at General Term said: “The respondent’s counsel insists that the judgment is not appealable. Section 2260 of the new Code, which is contained in the title relating to ‘summary proceedings to recover the possession of real property,’ provides -that ‘ an appeal may be taken from a final order made as prescribed in this title, to the same court, within the same time, and'in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer, and with like effect, except as otherwise prescribed,” etc., this case not being within the exception. It is contended that the section cited provides for a single appeal only, and does' not contemplate a review of the judgment of the appellate court, and in that respect follows the act of 1819, which gave an appeal from the determination of a justice of the peace in summary proceedings to the County Coürt, and provided that the decision of the County Court on such appeal should be final. (Laws 1819, chap. 193, § 5, sub. 2; Deuel v. Dust, 21 Barb., 138.) The conclusive answer to that position is that the words making the decision of the appellate court final are omitted in section 2260. That the omission was intended to work a change in the practice is apparent from the fact that the next section of the Code speaks of an appeal to the Court of Appeals from a final determination of the General Term of the Supreme Court or of a superior city court. (Sec. 2261.) The General Term has only an appellate jurisdiction in summary proceedings.
    “ It is also argued by the respondent that if section 2260 is to be construed as allowing an appeal from the determination of a County Court, where the same is allowed upon its determination in an appeal from a justice’s judgment, yet this matter is not appealable, the respondent’s position being that the decision of a County Court whether a judgment or order, if made in an action originating in a Justices’ Court, is not appealable to this court. That idea is suggested by the language of section 1340 of the Code, which gives an appeal to .the Supreme Court from a final judgment rendered by a County Court, or by any other court of record possessing general jurisdiction. The words “possessing general jurisdiction” are simply descriptive of the courts of record, other than county courts, from whose judgments an appeal may be taken<to the Supreme Court. They do not limit the right of appeal to judgments rendered by such courts in the exercise of their original jurisdiction. The case of Fish v. Thrasher (21 Hun, 15), and other like cases cited by the respondent’s counsel, holding that an appeal will not lie to the General Term from an order made by a County Court in an action originating in a Justices’ Court, proceeded upon the peculiar language of section 1342 of the Code which limited such right of appeal to an order made by such court in an action brought in that court. The section has since been amended by extending the right of appeal to orders made in actions brought in such court, or taken by appeal to such court. (Laws 1881, chap. 135.) We think the appeal will lie, and we proceed to consider the case on its merits.”

      Keeler <& Salisbury, for the appellant.

      John Cunneen, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred.

Judgment of County Court affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT L. UTLEY, Respondent, v. LEONARD SEATON, Sheriff of Jefferson County, and ELIZA WHITE, Appellant.

      Habeas corpus— one arrested in a civil action cannot be discharged on, unless the process is void and not merely voidable — Code of Oivil Procedure, sec. 2033.
    Appeal on the part of the defendant, Eliza White, from an order of the county judge of Jefferson county, discharging the relator on habeas corpus from imprisonment in the Jefferson county jail, on an execution against his person, issued .on a judgment in her favor.
    The relator was arrested on an execution in March, 1881, and was in custody of the sheriff. A writ of habeas corpus was allowed by the county judge of Jefferson county; a notice of the time and place of hearing was duly given to the judgment creditor, Eliza White, who appeared upon the return of such writ. After hearing the parties and on the twenty-fifth of April, an order discharging him from imprisonment was entered, on the ground that the execution was defective.
    The court at General Term said: “ It remains to be seen whether the execution in this case is so defective in matter of substance as to render it void. If so, the prisoner was properly , discharged. If, however^ the execution was only voidable and defective in form only, then his discharge was improper.
    The following defects appear upon the face of the execution:
    , First. It is not tested.

      Second. It recites that “ the property execution was issued to the sheriff of the proper county, and was returned unsatisfied.” It should have named the county to which it was issued.

      Third. It directs the return of the execution “ as required by law,” instead of requiring its return to be within sixty days from the time of the receipt by the sheriff.
    The Code provides that a writ or other process is not void or voidable by reason of any mistake or omission in the teste thereof. (Sec. 24.)
    As to the other defects, they are defects in form only, and are not defects in matter of substance required by law, rendering it void, The execution may be amended upon motion as to these defects nunc pro tunc. The remedy of the relator is by motion to have the execution set aside. Such motion should be granted unless the court, upon the proper terms, allows the amendment. The writ of habeas corpus is the proper rei'nedy only when the defects are matters of substance required by law rendering the process void.” (People ex rel. Thayer v. Bowe, 20 Hun, 547; also S. 0., 21 id., 614 ; Carpenter v. Simmons, 1 Hob., 360.)

      Charles D. Wright, for the appellant.

      Lansing & Rogers, for the relator.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and the relator remanded to the custody of the sheriff.


author: Hardin, JT.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Apellants, v. ADA LINCOLN, Respondent.

      Sentence of imprisonment after conviction of a misdemeanor — what confinement is regarded, as a pa/rt of the sentence.

    Appeal from an order made by the special county judge of Monroe county, discharging the respondent from the Monroe County Penitentiary where she was imprisoned upon a commitment issued by the recorder of the city of Elmira. On the 13th day of April, 1880, the respondent was convicted before said recorder of being a disorderly person, and sentenced to be imprisoned six months in the Monroe County Penitentiary in pursuance of the power conferred upon him by section 104 of the charter of Elmira, chapter 370 of 1875, and by section 2 of chapter 209 of 1874.
    Thereupon she was confined in the county jail until about the 1st of June, 1880, when, having sued out a certiorari to review the proceedings, she was let to bail, and remained out upon bail until the 28th day of August, 1880, when she was surrendered by her bail to the custody of the keeper of the jail of Chomung county, and there detained' by him until the 28th day of September, 1880, when she was removed to the custody of the keeper or superintendent of the Monroe Penitentiary, and remained until the 28th day of December, 1880, when she was discharged by the special county judge of Monroe county.
    By an agreement between the counties of Chemung and Monroe, entered into December 28th, 1878, it was provided that the Monroe County Penitentiary should receive and keep persons convicted in Chemung, etc.
    The court at General Term said: “We must hold that the commitment to the penitentiary was valid.
    Under and after the sentence of six months’ imprisonment, the respondent was actually detained in custody in the county jail and in the penitentiary the full period of six months before the special county judge discharged her. We think she was enduring the sentence when in custody after the sentence was pronounced. The case of the People ex rel. Stokes v. Warden, ete. (66 N. Y., 842) is distinguishable from the one before us, as there the imprisonment which the court refused to credit upon his sentence was such as he suffered before trial and conviction and sentence.
    In the case in hand we are of the opinion that the sentence began to run from the day it was pronounced, and that all the time the respondent was in custody after that day is to be credited upon her sentence. Being thus credited, it appeared to the special county judge that she had been imprisoned six months. The conviction was not for a felony, and the imprisonment in jail was as much of a punishment in theory of law as in the Monroe County Penitentiary.
    This case is therefore not within the reasoning of Attorney-General Schoonmaker, stated in his letter of March 14th, 1879, to the clerk of Auburn prison: He was considering cases of felony punishable by imprisonment in a State’s prison, by becoming “ an inmate of a State’s prison.”
    The special county judge having come to the conclusion that the time for which the prisoner may be legally detained had expired, properly granted to her a discharge.” (Secs. 2032-2034 of the Code of Civil Pro.)

      F. B. Fenner, district-attorney for the appellant.

      A. McDonald, for the respondent.
   Opinion by

Hardin, JT.;

Smith, P. J., and Haight, J., concurred.

Order affirmed.


text:
    JULIETTE CLEAVELAND, Respondent, v. PHILANDER HATCH and WILLARD HATCH, Appellants.

      County Court — an allegation of the complaint in an action in it, as to the residence ■ of a defendant, not denied in his answer, must he taken as true for all purposes — he cannot move to vacate a judgment entered therein on the ground, that he was a nonresident of the county.

    Appeal from an order of the Cattaraugus County Court denying a motion on the part of the defendant to vacate' the judgment herein and to dismiss the action for want of jurisdiction.
    The court at General Term said : “The ground of the motion was that at the time of the commencement of the action Willard Hatch, one of the defendants, was not a resident of the county of Cattaraugus, but resided in the county of Allegany. The pleadings in the case furnish a sufficient answer to the motion. The complaint alleged that both of the defendants were residents of the county of Cattaraugus, and each defendant appeared and answered and did not deny the averment. The fact of residence having thus been admitted of record, must be taken as true for all purposes of the action. (Code of Civil Pro., § 522.) Every fact essential to the jurisdiction is material to the issue, and when controverted it must of necessity be determined by the court upon proof like any other question of fact. (Burckle v. Eckhart, 3 N. Y., 132, per Gardner, J., p. 137.) Whether the fact is put in issue or is alleged and admitted on the record, in either case the adjudication is conclusive. In Davis v. Packard (6 Wend., 327) Walworth, Oh., said, speaking of courts of limited jurisdiction: “ Where the court has jurisdiction over the subject matter of the suit and facts are stated in the proceedings sufficient to give it jurisdiction as to the parties, if the defendant appears and confesses those facts, or tacitly admits them by pleading to the merits, he is precluded and cannot afterwards assign for error the want of jurisdiction.” The Chancellor cited several cases in support of this position. The case of Davis v. Packard was reversed by the Supreme Court of the United States (7 Pet., 276), but the principle stated by the Chancellor was not questioned but was held inapplicable to that case.

      The order appealed from should be affirmed, with ten dollars •costs and disbursements.”

      O. H. Phelps, for the appellants.

      P. W. Kruse, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Talcott, P. J.

text:
    Solomon Wile, Respondent, v. John H. Wilson, Appellant.
   Judgment appealed from reversed and judgment ordered for the defendant, with costs. Opinion by

Talcott, P. J.


text:
    Benjamin Carter, as Overseer, etc., Appellant, v. Sterling Long, Respondent.

   Motion for reargument and for leave to appeal to Court of Appeals denied. Opinion filed with the clerk of Monroe county.


text:
    Adelaide L. Post and others, Appellants, v. Francis O. Mason et al., Executors, etc., Respondents.

   —Motion to correct order of June term denied, without costs.


text:
    Campbell Printing Press and Manufacturing Company, Appellant, v. John George Wagner. Impleaded, etc., Respondent.
   Motion for order of substitution granted, and motion for leave to appeal to the Court of Appeals denied, without costs to either party.


text:
    Cubit C. Durrant and others, Respondents, v. Joseph Foxell and others, Appellants.

   Motion for leave to appeal to the Court of-Appeals denied.


text:
    The Town of Lyons, Appellant, v. Dwight S. Chamberlin, Respondent.

   Motion granted.


text:
    Benjamin F. Bowen, as Administrator, Respondent, v. Kinsey Widner, Appellant.

   Motion for a reargument denied.


text:
    Ann Williams v. The City of Oswego.
   Order of June term modified by ordering a new trial before another referee, costs to abide event, instead of ordering judgment for the plaintiff.


text:
    Martin S. Cuykendall, Respondent, v. Edward M. Townsend and another, Appellants.

   Motion granted, with ten dollars costs.


author: Hardin, J.

text:
    Jotham W. Littlefield, Respondent, v. William Littlefield and others, Appellants.

   Judgment and order affirmed. Opinion by

Hardin, J.


text:
    Catharine Reamer and others, Administrators, etc., Plaintiffs, v. The New York Central and Hudson River Railroad Company, Defendants.

   New trial denied.


text:
    Elizabeth W. Greenwood, individually and as Executrix, v. George L. Marvin and Wife, Impleaded, etc.

   Motion to dismiss appeal denied, without costs. Held, that the appellant was not in default at the trial, and that the question whether he retains an interest in the subject-matter of the litigation relates to the merits involved in the appeal.


text:
    Timothy A. Smith and another, Appellants, v. Moses H. Cross and another, Respondents.

   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Sewell Scott, Respondent, v. Cynthia A. Otis, Impleaded, etc., Appellant.

   Judgment and order affirmed. Opinion by

Hardin, J.


text:
    Dennis Sheehan v. The New York Central and Hudson River Railroad Company.
   New trial granted, costs to abide event. The cases of Slater v. Jewett, Receiver, etc. (decided by the Court of Appeals, MS. opinion of Folger, Ch. J.), and Dana v. The New York Central and Hudson River Railroad Company (decided in this department, 23 Hun, 473; S. C., 24 id., 495) are regarded as decisive of this case.


text:
    Daniel Budlong, Appellant, v. Harris Lewis, as Executor, etc., Respondent.

   Motion for reargument and to send the case back to the referee for further findings denied, with ten dollars costs. Held, that as there is no evidence that the defendant submitted special requests for findings to the referee at the time and in the manner required by section 1023 of the Code, it would be unavailing to the defendant to send the case back to the referee for further findings.


author: Smith, P. J.

text:
    George W. Crandall, Respondent, v. Rodney S. Whitman, Appellant.

   Order ap'pealed from affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Leonidas Doty v. William E. Babcock and another, Respondents, and The First National Bank of Batavia, Appellant, and others.
   Order appealed from affirmed, with ten dollars costs and disbursements to be paid by appellant to the respondents. Opinion by

Smith, P. J.


author: Haight, J.

text:
    The People ex rel. Thomas D. Penfield and others, Appellants, v. The Board of State Assessors, Respondents.

   Determination of State assessors affirmed, with costs not exceeding fifty dollars and disbursements to be taxed. Opinion by

Haight, J.

The motion submitted denied, without costs and without prejudice te the right to renew the same at Special Term.


text:
    Eliza Graham and another, as Executrix, etc., Respondents, v. Melissa L. Snyder, Impleaded, etc., Appellant.

   Judgment affirmed. Opinion by

Hardin, J.


author: Hardin, J.;

text:
    Philip Levin, Appellant, v. Jacob L. Haas and another, Respondents.
      Philip Levin v. Joseph L. Haberstro.
   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.;

Haight, J., not sitting.


text:
    Charles Bremer, as General Guardian, Respondent, v. Casper Weisbecher, Appellant.

   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.


text:
    Charles A. Hinman and another, Respondents, v. William D. Dunning and another, as Executors, etc., Appellants.

   Judgment and order affirmed. Opinion by

Haight, J.


text:
    Thomas Murphy, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment affirmed. Opinion by

Haight, J.;

Hardin, J., concurs; Smith, P. J., concurs in result.


text:
    Genesee River National Bank, Appellant, v. Margaret M. Meade, individually and as Executrix, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Kelsey Todd, as Executor, etc., Appellant, v. The United States Life Insurance Company in the City of New York, Respondent.
   Declined to be heard, on the ground that there is no evidence in the appeal papers that the case has been settled by the trial judge.


text:
    Alice Connelley, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order affirmed.

Smith, P. J., not participating in the decision.


text:
    Amelia Plopper, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Order appealed from reversed and new trial ordered, costs to abide event. Opinion by

Haight, J.


text:
    James McKechnie and another, Appellants, v. Henry Standish, Respondent.

   So much of the judgment as is appealed from reversed and new trial ordered, costs to abide event. Opinion by

Hardin, J.;

Smith, P. J., not participating in the decision.


text:
    Oscar F. Eaton, Receiver, etc., Respondent, v. Joseph Palmer, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Haight, J.


text:
    Patrick Fleming, Respondent, v. The Village of Suspension Bridge, Appellant.

   Judgment affirmed. Opinion by

Haight, J.


text:
    Samuel W. Nash, Respondent, v. White’s Bank of Buffalo, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    The Same, Respondent, v. The Manufacturers and Traders’ Bank, Appellant.

   The like order as in the last preceding case.


text:
    Nelson Beardsley, Appellant, v. Ellen E. Dixon and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    George W. Holt, as Executor, etc., Respondent, v. The Erie Railway Company and The Union Steamboat Company, Appellants.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    Alexander Jones, Respondent, v. Moses L. Oberdorfer and another, Appellants.

   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Hardin, J.


text:
    Noble D. Preston, Appellant, v. Richard K. Sanford and others, Respondents.

   Judgment affirmed. Opinion by

Haight, J.


text:
    Benjamin E. Langworthy, Appellant, v. Patrick Harden and another, Respondents.

   Motion-for new trial denied and judgment ordered for defendants on the verdict. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    In the Matter of Charles G. Tinsley; a Stenographer, etc.
   Order appealed from reversed. Opinion by

Haight, J.


text:
    The Seventh Ward Savings and Aid Association No. 2, Respondent, v. Peter Weiss and others, Appellants.

   Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


text:
    The People ex rel. Tanner, Appellants, v. The Board of Supervisors of Oneida County, Respondent.

   In the matter of the stenographic minutes taken by the late stenographer of the Supreme Court, fifth judicial district, that have been damaged by fire and water. Orders appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.;

Mem. by Hardin, J.


text:
    Henry Wilcox and another, Respondents, v. The First Baptist Church in Little Falls, Appellant.

   Judgment affirmed. Opinion by

Haight, J.;

Hardin, J., not participating in the decision.


author: Hardin, J,

text:
    Edmund W. Fairman, Appellant, v. Louis P. Baker, Respondent.

   Order appealed from reversed, without costs. Opinion by

Hardin, J,


text:
    Rufus M. Watson, Appellant, v. George E. Morehouse, Respondent.

   Judgment of the County Couit reversed and that of the justice affirmed. Opinion by

Hardin, J.


text:
    Louisa Bredow, Respondent, v. The Erie County Mutual Insurance Company, Appellant.

   Judgment reversed and new trial ordered in the County Court of Erie county, with costs to abide the event. Opinion by

Haight, J.


text:
    The Bank of Oswego, Appellant, v. William H. Doyle and another, Respondents.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    George W. Holt et al., Respondents, v. W. Austin Wadsworth et al., Appellants.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    In the Matter of the Final Accounting of Alvin Gibbs, as Administrator, etc., of Alvin A. Gibbs, Deceased. Alvin Gibbs, as Administrator, etc., Appellant, v. Northern Insurance Company of New York et al., Respondents.

   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    William A. Todd, as Commissioner, etc., of the Town of Royalton, Appellant, v. Joseph Garbutt, as Commissioner, etc., of the Town of Hartland, Respondent.

   Judgment affirmed on authority of Tifft v. Alley (3 N. Y. S. C. [T. & C.], 784).


text:
    Renel H. Thayer, as Assignee, etc., Respondent, v. Sarah M. Parr, Appellant.

   Order appealed from reversed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    George McMillen and others, Appellants, v. Alvira McMillen and others, Respondents.

   Decree of surrogate reversed and an order granted directing the trial of issues by a jury at a Circuit Court to be held in Erie county. The order herein to be settled by Justice ITaight on motion, costs to abide the event. Opinion by

Hardin, J.


text:
    William Owens, Respondent, v. John C. Cosgrove, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Thomas Murphy, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order of Special Term and taxation reversed and set aside unless the plaintiff consents to reduce the item of interest, by computing interest at six per cent instead of seven, from the time of the death of the plaintiff’s intestate to the date of the entry of judgment, and in that case affirmed as so modified, without costs of this appeal. (Salter v. Black River Railroad Company, decided in this department in January, 1881, and affirmed in Court of Appeals.)


text:
    Libertus Van Bokkelen, Respondent, v. Myron H. Mills, Appellant.

   Order appealed from affirmed. Opinion by

Haight, J.;

Smith, P. J., not sitting.


text:
    Douglas Boardman, as Executor, etc., and another, Plaintiffs, v. Edward Evans and another, Defendants.

   New trial ordered, costs to abide event. Opinion by

Hardin, J.;

Haight, J., not participating in the decision.


author: ITaight, J.;

text:
    George Wagoner, Respondent, v. Wilbur Combs and another, Appellants.

   Order appealed from affirmed. Opinion by

ITaight, J.;

Smith, P. J., does not participate in the decision.