text:
    JOHAN A. ENGH, Respondent, v. HENRY GREENEBAUM AND OTHERS, APPELLANTS.

      Principal—when bound by acts of agent—Private instructions to agent—pm'sons without notice not affected by.

    The defendants are bankers, and as such sell drafts payable in Europe. They employed one S. to sell drafts for them in Brooklyn, he being authorized to draw drafts in his own name on defendants’ foreign correspondents. A printed list of instructions was furnished to S., and by them “such drafts are to be covered with us in funds par in New York, and will then be duly advised for protection by our regular advices to Europe.” Plaintiff purchased certain drafts of S., some of which were paid, and payment of the others refused because the money paid for them to S. had been retained by him and not paid over to the defendants. In an action brought by plaintiff on such drafts, held, that he was entitled to recover ; that the defendants could not authorize a sale of their drafts and make them validity depend upon the fact that the agent should pay them the money received upon them, in the absence of knowledge of such a condition by the purchaser.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The defendants were bankers, and sold drafts payable in the different countries of Europe. They furnished to their agent blanks of the following form :
    Exchange for----
    On demand of this first of exchange (second unpaid) pay to the order of--, value received, and charge the same to account of G. B. & Co., as per advice from them.
    Your obt. servant,
    The drafts were to be signed by the agents and directed to any of the foreign correspondents of the defendants, a list of them being furnished to each agent.
    Other facts are stated in the opinion.

      H. Morrison, for the appellants.

      Robert Johnstone, for the respondent.
   Barnard, P. J.:

The defendants are bankers. They sell drafts payable in the various countries of Europe. They employed one Swanstrum to act as their agent in selling such drafts in the city of Brooklyn, paying him one and one-half per cent on the sale of each draft. By the printed instructions, given him at the time of his employment, he was directed to draw his own drafts on defendants’ correspondents abroad, and report promptly the number and date of the draft, and on whom and in whose favor, and for what amount drawn. Lists of persons, on whom drafts might be drawn in different countries, were given in the instructions, and, by those instructions, “ such drafts are to be covered with us in funds par in New York, and will then be duly advised for protection by our regular advices to Europe.”

The defendants furnished these drafts to Swanstrum, and he sold a number of them to plaintiff, which were regularly paid. The draft in question was not paid. The agent did not, in this instance, cover the draft, but applied the money received from plaintiff to his own use.

I think the defendants are liable upon it. Swanstrum did what he was employed to do. He sold drafts payable by defendants, drawing on their agents, as he was authorized to do, in his own name. He received plaintiff’s money with full power from defendants. As between defendants and Swanstrum, he was bound to pay the money to defendants; but his failure to do this did not affect the plaintiff’s rights. He could not know of the instructions given by defendants to their agent. If he did, the requirement by the defendants of their agent, to pay price of draft to them, is no more than the law would exact, in the absence of any written directions. The defendants cannot authorize a sale of their drafts, and make their validity depend upon the fact, whether the agent pays them the money received for it, in the absence of knowledge of such a condition by the purchaser. The judgment should be affirmed, with costs.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Talcott, J., dissented.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    SPENCER D. C. VAN BOKKELEN, Appellant, v. GEORGE F. TAYLOR and others, Respondents.

      Release — evidence of what was said at the time of its delivery — when admissible.

    Where there is a question raised by the evidence as to the ownership of a security alleged to have been released and satisfied, it is proper to show what took place between the parties to such release at the time of its delivery.
    1st. As it might show that the party bound by the security had knowledge that it was owned by another than the one executing the release.
    2d. As the delivery of the release might have been upon a condition which had never been fulfilled.
    Appeal from a judgment in favor of defendant, entered at Special Term, in an action for the foreclosure of mortgage.
    The defense was that the mortgage had been released and discharged.
    The evidence tended to show that at the time the release was executed, the mortgage had been assigned, and was then owned by the brother of the plaintiff and was afterward reassigned to the plaintiff. During the trial, the plaintiff offered to show what took place at the time of the delivery of the release. This evidence the court excluded.
    The court found that on the 23d day of June, 1868, the said plaintiff, being the holder of the bond, mortgage and promissory note, set out in the complaint, and holding himself out to the said George F. Taylor as the owner thereof, made, executed and delivered to the said George F. Taylor, án instrument in "writing, under his hand and seal, whereby, for value received, and in consideration of one dollar by said George F. Taylor in hand paid to the said plaintiff, the receipt whereof was thereby acknowledged, the said plaintiff did release the said George F. Taylor from all indebtedness due by him to the said plaintiff, either on book account, note of hand, or in any other way, bearing date prior to January 1st, 1868.
    And, as matter of law, the court decided that the plaintiff was not entitled to judgment decreeing any sum due him on said bond, mortgage or note; and that the defendant, George F. Taylor, was entitled to judgment in his favor against the plaintiff.

      From this judgment the plaintiff appealed to this court.

      Jesse Johnson, for the appellant.

      D. P. Barnard, for the respondents.
   Barnard, P. J.:

I think the court erred in excluding evidence offered by plaintiff, as to what took place at the time of the delivery of the release in question. The plaintiff was attempting to foreclose a mortgage, executed to him by the defendant in 1857. He claimed that this mortgage was, in 1860, assigned by him to his brother, Adam Van Bokkelen; that Adam continued to own the same until 1873. The release is dated in 1868, and purports to release all claim which plaintiff had against Taylor. The evidence rejected was admissible upon two grounds.

In the first place, the plaintiff was entitled to prove that Taylor knew, r.fc the time of the delivery of the release, that the mortgage in question belonged to plaintiff’s brother, and could not be released by plaintiff, and 'was not covered by his release to defendant.

In the second place, it was competent for plaintiff to prove that the delivery of the release depended upon a condition which had not happened.

Judgment reversed, and new trial granted, costs to abide event.

Present—-Barnard, P. J., and Talcott, J.

Judgment reversed and new trial granted, costs to abide event.


text:
    RODOLPHUS B. JOHNSON and CHARLES T. CHILDS, Appellants, v. EDWARD G. KELLY, Respondent.

      Complaint by one partner to recover proportion of loss from his copartner—demurrer to—not sustained when it applies only to the pray err for relief.

    A complaint, alleging that a copartnership was entered into, in which plaintiff's and defendant were to share losses and profits; that it had expired, and that a loss had been sustained, and asking a money judgment, states a cause of action; and if the facts are true, the plaintiffs are entitled to recover.
    If the issue made by the answer in such case, required an accounting to be had, it would be ordered, notwithstanding a money judgment was asked- for.

      Appeal from a judgment entered at Special Term, sustaining defendant’s demurrer to the complaint of the plaintiffs. The complaint alleged that the following agreement had been entered into between the parties to this action:

      “ An agreement for the term of one year from the 20th day of July, 1869, by and between E. G. Kelly, Esq., of the first part, and B. B. Johnson, for self and O. T. Childs, of the second part, for the purpose of manufacturing of oil at the works of said Kelly.
    “ Witnesseth, that said Kelly, owning the fixtures and appurtenances belonging to the so-called New York City Oil Works, located at Hunter’s Point, L. I., on land of Messrs. Boot & Bust, doth hereby agree, for the above-mentioned term of time, to put in running order, and pay the rent for the same, for the above-mentioned purpose; and,
    “ Whereas, the said Johnson and Childs doth hereby agree to furnish a capital of $8,000 or $10,000, to be applied for the purpose of manufacturing oil at said Kelly’s factory during said time.

      “ Profits to be equally divided, and losses jointly borne, said Kelly one-half and said Johnson & Childs one-half.

      “ It is further agreed, that, whenever said Kelly shall cause, at his own expense, to be located on said premises a still of the capacity of 200 barrels, in good order for distillation, then the said Johnson and Childs are to jointly pay one-half of said rent for the unexpired time, or to such time as the business may continue under the foregoing partnership.
    “ It is further understood that the said manufacturing, in all its details, shall be under the managing care of said Johnson. It is also agreed that said Kelly reserve for bis own purpose the right of coopering and occupying the ground he now occupies in rear of office, free of charge, until such time as might be deemed advisable by said Johnson for all concerned to connect said coopering with said manufacturing.
    “ E. G. KELLY,
    “ B. B. JOHNSON, for self and “ C. T. CHILDS.”
    That, according to the terms of said partnership, the said B. B. Johnson and C. T. Childs furnished moneys to the amount named in the above contract, and the said K. B. Johnson superintended the manufacture of oil at the works described therein, for the time specified in said contract.
    That, at the expiration of said partnership, on the 20th day of July, 1870, there had been received to its credit $40,041.37, and there had been expended to its debit $43,418,13, making a loss of $3,376.76, one-half of which is $1,688.38.
    That the defendant had not paid the said $1,688.38.
    The plaintiffs demanded judgment against the defendant for the sum of $1,688.38, and interest and costs.
    The defendant demurred, on the ground that the complaint did not state facts constituting a cause of action.
    The court, at Special Term, sustained the demurrer, and handed down the following decision:

      “ Judgment for defendant on demurrer, with costs.

      “ If the relation between the parties be that of partners, and there has been no accounting and promise, the form of the action must be for an accounting.”
    The plaintiffs appealed to the General Term, from the judgment entered on such decision.

      Frederick T. Glover, for the appellant.
    That an action at law was proper. (Willard’s Eq. Jur., 92; Story’s Eq. Jur., vol. 1, sec. 664, note; Emery v. Pease, 20 N. Y., 62.) That the court should have allowed an amendment of the prayer for relief. (Wait’s ed. Code, p. 519, § 275, note a.)

      N. P. Hoxie, for the respondent.
   Barnard, P. J.:

We think the complaint sets out a cause of action. The plaintiffs and the defendant are stated therein to have entered into a partnership for one year, from July 20th, 1869, in the manufacture of oil; the plaintiffs to furnish capital, and the plaintiffs to bear half the losses, and the defendant half, and to share profits in same proportion. A loss is averred, at the expiration of the partnership, of $3,376.76, and the complaint asks to recover one-half thereof of defendant, namely, $1,638.88. If the facts are true, the plaintiffs will be entitled to recover.

The partnership is terminated. A loss has been realized, and the defendant, in the article of agreement of copartnership, has agreed to pay one-half to plaintiffs.

If the answer admits the complaint, the plaintiffs will be entitled to recover a money verdict, as in an action at law.

If an issue should be made by the answer, calling for an accounting, an accounting would be ordered, notwithstanding a money judgment is demanded in the complaint.

The demurrer is simply to the prayer for judgment, and must be overruled.

Judgment reversed, with leave to defendant to answer in twenty days, on payment of costs.

Present—Barnard, P. J., and Talcott, J.

Judgment reversed, with leave to defendant to answer within twenty days, on payment of costs.


text:
    ANN MARSH, and another, Executrix and Executor, etc., of LEONARD MARSH, deceased, Respondents, v. THE CITY OF BROOKLYN, Appellant.

      Assessment—when equity will set aside as a cloud upon title— defects aliunde the record.

    When the invalidity of an assessment can only be established by proof aliunde the record, equity will entertain a complaint to remove the cloud upon the title.
    Appeal from a judgment setting aside an assessment on property of plaintiffs’ testator on the ground that it was illegal and void.
    The action was brought to set aside an assessment for grading and paving Franklin avenue, in the city of Brooklyn, as a cloud upon plaintiffs’ title.
    The court, at Special Term, found that the assessment in question was illegal and void, and ordered that the same be set aside and vacated. The defects in the proceedings consisted in the fact that the premises were assessed to one who was not the owner or occupant thereof; that the assessment was not charged against the owner or occupant thereof, nor were the owners, or either of them, or any occupant of said premises, mentioned in the proceedings.

      William C. De Witt, Corporation Counsel, for the appellant.

      Sidney V. Lowell, for the respondent.
   Barnard, P. J.:

It is not disputed by the respondent but that the assessment in question is totally invalid, and it is only by proof aliv/nde that the invalidity is to" be established.

Equity, in such a case, will entertain a complaint, and remove the cloud on plaintiff’s title. By the act incorporating the city of Brooklyn, assessments are made liens from the date of confirmation, prior to all others.

There is no finding of confirmation, but the answer admits that the assessment is now a lien on the premises described in the complaint.

The case, therefore, shows an existing lien which is, in fact, invalid.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.

       Crooke v. Andrews, 40 N. Y., 547; Scott v. Onderdonk, 14 id., 9.


text:
    CORNELIUS B. PAYNE, Respondent, v. AMELIA E. BURNHAM and another, Appellants.

      Mortgage — validity of, in hands of assignee — Estoppel.

    Tlie court below having found that the plaintiff took an assignment of a mortgage, believing it to be a bona fide, existing one, and the mortgagor at the time having sworn to an affidavit that it was a good, valid and subsisting mortgage, held, that the mortgagor was estopped from denying its validity.
    Appeal from a judgment of the County Court of Kings county.
    This action was brought to foreclose a mortgage made by the defendants to John H. Sterling, on certain real estate in the city of Brooklyn, the separate property of the defendant, Amelia E. Burnham. The mortgage was assigned by Sterling to the plaintiff.
    The bond and mortgage, dated 20tli June, 1870, recorded 23d June, 1870, were given to secure the sum'of $10,000. The assignment bore date, 23d June, 1870, and was recorded, 29th June, 1870.
    The answer sets up the defense of usury, and alleges that it was agreed between the parties, that the bond and mortgage should be executed to Sterling, and by him assigned to the plaintiff, for the purpose of avoiding the statute, and that the mortgage was afterward extended by a further usurious agreement.
    It appeared in evidence, that at or about the time of the assignment, the defendants swore to an affidavit that they were the owners of the premises in question, and that the consideration of the mortgage was the full amount expressed therein, without any discount or abatement whatsoever, and that there was no defense or offset to the same, of any nature or kind whatsoever, either legal or equitable.
    The evidence offered by the plaintiff was also to the effect that the transaction took place between the agent of the plaintiff and one Brownell, through a real estate "broker, and that the purchase of the bond and mortgage was made in good faith, without notice that they were otherwise than good and dona fide securities; that they were so represented by Brownell, and so purchased.
    The agent of the plaintiff paid for the bond and mortgage $1,755, by means of checks payable to the order of Sterling, the mortgagee. These checks were indorsed by Sterling to the order of A. C. Burnham.
    The testimony on behalf of the defendant tended to prove that the negotiation'took place between the defendant, A. C. Burnham, and the plaintiff or his agent directly. That the mortgage was not in existence at the time, and that the execution of the mortgage to Sterling, and its assignment to the plaintiff, were parts of the same transaction, and were so understood by the plaintiff’s agent, and intended to avoid the statute against usury.
    The action was tried before the court without a jury, and it was found that there was due to the plaintiff the amount secured by the mortgage with interest, less the amount paid as usurious consider ation for the extension of the mortgage, which should be credited as payments on account of the principal.

      George C. Blanke, attorney for the appellants.

      George H. Granniss, attorney for the respondent.
   Barnard, P. J.:

The principal question in this case is one of fact. The evidence was very conflicting, whether the plaintiff or his agent took the assignment of the mortgage as a bona fide one, or whether they knew it was drawn to a third party, to be assigned to plaintiff upon an usurious rate of interest. The court below has found that the plaintiff took the same, believing it to be a bona fide existing mortgage.

We cannot reverse this finding. The mortgagor and her husband both swore to an affidavit, as to the validity of the mortgage, the husband at the time, and the wife within an hour afterward, and before the payment of but $500 of the purchase-price.

It is quite unlikely that these parties swore to a falsehood, known to be untrue by the plaintiff and his attorney, who were to receive it, and were to be protected by it. The estoppel is complete against Mrs. Burnham. It was part of the arrangement made by her agents, that she should sign such an affidavit, and that the fact that it was a good and valid subsisting mortgage was true. She ratified this afterward, and within an hour after the first payment of $500, by making the affidavit. She was estopped without the affidavit. That is but evidence of the assertion of the fact, which created the estoppel. It was proper to give a judgment for deficiency against the mortgagor; she received the money for which the mortgage was given, and that surely was for the benefit of her separate estate.

Judgment affirmed, with costs.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


author: Tappen, J.:

text:
    J. WARREN TOMPKINS, Appellant, v. VALENTINE M. HODGSON and ELISHA P. FERRIS, Respondents.

      Streets and pubUo highways— to what uses they may tie appropriated—statues ma/y be e/reeted in.

    The streets in a populous city or village may be appropriated to other purposes than mere places of passage; they may be used and appropriated for the health, trade, commerce and convenience of the public, and for any public use which is consistent and in harmony with their use as public highways.
    The law will sanction the erection of a work of art, such as an ornamental statue, in the public highway, when it does not obstruct travel; and such erection is not a trespass on the right of the owner of the soil in such highway.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action at the Special Term, dismissing the plaintiffs complaint.
    The facts are stated in the opinion.

      J. W. Tompkins, for the appellant.

      J. O. Dykman, for the respondents.
   Tappen, J.:

The plaintiff is a property owner and resident of the village of White Plains, in the county of Westchester. By the act of May 11, 1869, chapter 855, authority was given to raise money by tax, to be used under certain regulations, for the purpose of erecting a public monument within the town or county, in memory of the soldiers of such town or county, or in commemoration of any public person or event.

A sum of $1,600 was thus raised by the town of White Plains ; the provisions of the law in other respects complied with, and the consent of the trustees of the village of White Plains given, to the erection of said monument on Broadway, at a point nearly opposite Railroad avenue,” and authorizing the town authorities to grade the ground for said monument, under the direction of the committee on roads and bridges, provided such grading shall not interfere with any existing carriage-way on Broadway.

The defendants, under this authority, made suitable contracts, and a soldiers’ monument was put up on Broadway, opposite the plaintiff’s premises, and he brings this action, claiming that the structure is for a new purpose foreign to the right of the public in the highway, and that it is a nuisance, and a trespass as regards the plaintiff’s property and residence, and asking the judgment of the court that the defendants be compelled to remove the monument and all the materials used in its erection, and that they be restrained from continuing the same on the plaintiff’s land on said highway.

By the facts established at the trial, it appears that Broadway has been, for over fifty years, a highway of the width of 278 feet opposite plaintiff’s premises; that plaintiff owns a piece of land fronting 250 feet on the highway and to the center thereof, subject to the rights of the public in the highway; that the monument on Broadway was in front of plaintiff’s land, near the center of the street, but entirely on the plaintiff’s side of the center; that the space covered by the monument is not needed for public travel, and has not been actually traveled over, and that the monument is a great ornament to the place where it is erected.

By an ordinance of the village, passed May, 1871, “ all that part of the street or avenue known as Broadway, except the constructed sidewalks and carriage-ways,” was reserved as a public square or park.

The carriage-roads or tracks and foot-walks, are well defined on this wide piece of land called Broadway, and the land, not occupied by such roads or walks, is largely grown with trees, shrubbery and grass, and here in an appropriate place, the monument, in good taste and well designed, is erected.

The plaintiff asks the court not to take judicial notice of the beauty of the monument, and says it is not beautiful. It is on a mound about fifty-eight feet square and four feet high, then comeg a base and metallic figure, together sixteen feet high.

The chief question is, have the trustees of the village, who have the control of the streets for public use, the power to make this, use of this highway.

When it is considered that highways are public for other purposes than traveling, for shade-trees and sidewalks, by legislative enactment, and for sewers, lamps, gas and water-pipes, public wells and cisterns, and that these uses are in harmony with the uses of a public highway when they do not obstruct travel, the further conclusion will readily be reached, that the law will sanction the erection of a work of art, such as an ornamental statue, without thereby trespassing in any respect on the rights of the owner of the soil, who holds strictly subordinate to public use.

Statues of men, and in commemoration of great public events, are now considered as the legitimate belongings of public places; the statue of Franklin is in Printing-house square, directly on a highway, in New York city, and the statues of Washington and Lincoln are on the public street, at the south of Union square, in that city. Cities, both ancient and modern, in the old world, give abundant proof that statues, ornamental temples, obelisks, pillars and columns, have long been considered legitimate objects of public approval and admiration, and they are neither to be hid in a corner, nor placed where they cannot be seen. New discoveries make new uses, and telegraph poles run on highways all over the land.

The streets in a populous city or village may be appropriated to other purposes than a mere place of passage; they may be used and appropriated for the promotion of the health, trade, commerce and convenience of the public, and, it may be added, for any public use which is consistent and in harmony with their use as public highways.

The judgment for the defendants should be affirmed with costs.

Present—Tappen and Talcott, JJ.

Judgment affirméd, with costs.

       People v. Kerr, 27 N. Y., 188, 213 ; Plant v. Long I. R. R. Co., 10 Barb., 26; Chapman v. A. & S. R. R. Co., 10 id., 360; Milhau v. Sharp, 15 id., 193, 211; Kelsey v. King, 32 id., 410, 417.


text:
    THE PEOPLE ex rel. JOSHUA NELSON, Respondent, WALLACE JEFFERDS and others, Commissioners of Highways, etc., Appellants.

      Mandamus — Commissioners of highways — Order directing the laying out of a road — omission to make and file — effect of.

    Where all the proceedings for laying out a highway had been duly taken by the commissioners of highways, except the making, signing and filing of the order or certificate of their decision to lay out such highway; and where, on their application, commissioners had been appointed to assess damages, who had omitted to assess those of the relator; held, that it was proper to award a peremptory mandamus commanding the commissioners of highways to make, sign, and file in the town clerk’s office an order laying out the highway in question, to have the relator’s damages assessed, and to cause the highway to be opened and worked according to law.
    The determination to lay out the road was a judicial act. The making of the necessary record of that determination, when arrived at, was ministerial, and, as to such acts, the specific thing to be done may be directed by mandamus

    Appeal from a judgment of the Special Term, awarding a peremptory mandamus.

      E. Cooke, for the appellants.

      E. Wells, for the respondents.

       Woolsey v. Tompkins, 23 Wend., 324; Carpenter v. County Com’rs of Bristol, 21 Pick., 259; People v. Judges of Dutchess Co., 20 Wend., 658.

   Opinion by Talcott, J.

Present—Talcott and Tappen, JJ.

Judgment affirmed, with costs.


text:
    MARINDA WOOD, Respondent, v. WILLIAM McCLUGHAN and others, Appellants.

      Judgment of foreclosure—effect of, on subsequent mortgagees, pa/rties to the suit— Presumption.

    On the 4th of October, 1862, the premises described in the complaint in this action, were sold by th e sheriff to one Thomas George, under a judgment in foreclosure, in an action to which the plaintiff herein, the owner of a subsequent mortgage on said premises, was a party. Thomas George did not pay the purchase-money, which was sufficient to discharge the prior mortgage, and also that of the plaintiff, but continued to pay interest on plaintiff’s mortgage.
    November 2d, 1863, Thomas George conveyed the same lands to the defendant McClughan, by a full covenant warranty deed, free of incumbrances. In an action brought by the plaintiff to foreclose her mortgage, held, that it could not be maintained; that the deed to McClughan, if given for a good consideration and without notice, passed the entire title to him; and that, in the absence of proof, the deed would be held presumptive evidence of the payment of the consideration therein named.,

    Appeal from a judgment, entered in favor of the plaintiff.

      James W. Taylor, for the appellants.

      John Miller, for the respondent.

       7 Cow., 360.

   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment reversed and new trial granted, costs to abide the event.


text:
    WILLIAM H. GOODALE, Appellant, v. WILLIAM H. FINN, Respondent.

      Order of mrest—cannot be granted on a judgment, a portion of which is for money loaned—Foreign judgment—whether orderr of airrest can be granted in action on.

    Plaintiff sued the defendant, in the State of New Jersey, for the price of certain property sold to him, and also for money loaned by the plaintiff to the defendant, and recovered judgment for both demands. Subsequently, a suit was commenced upon that judgment in this State, and an order of arrest was procured on the ground that the defendant had been guilty of fraud in contracting the debt or obligation for which the action was brought. The plaintiff alleged that he was induced to sell the property—the price of which was recovered in the suit in New Jersey — to the defendant, by means of false and fraudulent representations made by him. As to the money loaned no fraud was alleged. Sdd that, as the money loaned was included in the New Jersey judgment, and as the order of arrest was for the entire debt represented by that judgment, the order could not be sustained.

    The alleged fraud was practised in New Jersey; the entire transaction happened there; the parties lived there; the plaintiff pursued his claim to judgment in the courts of that State without any averment of fraud against the defendant; and the judgment which he there obtained now constitutes the debt or obligation on which this action is brought. Whether under such circumstances an order of arrest can be granted, guere.

    Appeal from an order of the Special .Term, vacating an order of arrest.

       Robinson v. Flint, 16 How., 240; Brown v. Ashbough, 40 id., 226; Bowen v True. 53 N. Y., 640.

   Opinion by Tappen, J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Order affirmed, with $10 costs.


text:
    THE PEOPLE ex rel. HENRY LUDLUM v. STEPHEN WALLACE, HENRY C. BAKER and BENJAMIN W. CRAFT, Commissioners of Highways, of the Town of Oyster Bay, Respondents.

      Commissioners of highways — Certiorari — when not granted, pending appeal — Notice required by B. 8., as amended by chap. 315, 1873—when mffaient.

    Pending an appeal to the county judge from the decision of commissioners of highways relative to a laying out of a highway, a writ of certiorari to review such proceedings should not he granted

    The provisions of the Revised Statutes, as amended by chapter 315 of 1873, are sufficiently complied with as to the notice required to be given by the applicant to the town clerk, commissioners of highways and a justice of the peace, where, though the notice to the town clerk specifies the day, and that to the justice and the commissioners asks for a jury, but does not name a day for the drawing, the two commissioners attended the drawing of jurors, and the justice, though not present at the drawing, issued a summons for and swore the jury — the statute requiring that the drawing be in the presence of a justice or a commissioner.
    Certiorarí issued to the commissioners of highways of the town of Oyster Bay, requiring a return of a decision made by them laying out a road leading from William Dougherty’s across Centre Island beach to Jacob Smith’s in said town.

      Whitehead H. Van Wyck, for the relator.

      Elias J. Beach, for the respondents.

       People ex rel. Woodward v. Covert, 1 Hill, 674; Ex parte Mayor of Albany, 23 Wend., 277.

   Opinion by Tappen, J.

Present—Barnard, P. J., Tappen and Talcott, J J.

Writ quashed.


text:
    ELNATHAN L. SANDERSON, Appellant, v. HENRY C. BOWEN and others, Respondents.

      Papers taken try ¡wry to jury-room—rests in discretion of the court.

    “The verdict in this action was set aside for irregularity, upon the ground that the successful party placed in the hands of the jury, upon their retiring to consider of their verdict, a certain printed paper, without the consent of the court or the opposite counsel. The action was for a libel, and the paper placed in the hands of the jury was a printed copy of one of the libellous articles counted upon, and which had been given in evidence. The modern rule, as settled in this State, is that, whether any and what papers which have been given in evidence, may be taken by the jury when they retire to deliberate upon their verdict, is a matter within the discretion of the judge before whom the action is tried.”

    Appeal from an order made at the Special Term of Kings county, vacating and setting aside the verdict of a jury and ordering a new trial. The court ruled that no paper should be taken by the jury, except such as counsel on each side should agree upon. The counsel had some discussion as to whether any and what papers should be taken by the jury. The paper in question was handed to one of the jury by the prevailing party, and taken into the jury room. The counsel for the defendant claimed that he did not consent to this, and the counsel for the plaintiff claimed that he did. The Special Term held that the counsel for the plaintiff failed to show that defendant’s counsel consented, and made the order directing a new trial. The plaintiff’s counsel appealed to this court from such order, where it was affirmed with $10 costs of appeal.

      E. L. Sanderson, appellant in person.

      George C. Holt, for the respondents.

       Porter v. Mount, 45 Barb., 422; Schappner v. 2d Avenue R. R. Co., 55 id., 497; Howland v. Willetts, 9 N. Y., 170.

   Opinion by Talcott, J.

Present—Tappen and Talcott, JJ.

Order affirmed, with $10 costs of appeal.


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    GEORGE MAHON, Respondent, v. JOHN D. HALL and others, Appellants.

      Answer—order striking out, as frivolous, will not be reviewed on appeal from judgment in the action.

    An answer was interposed in this action setting up the defense of usury, which was, upon motion, overruled as frivolous, and judgment ordered for the plaintiff, which order was affirmed by the General Term. Judgment having been entered in the action, this appeal was taken therefrom. Held, that the decision by which the answer was held to be frivolous, could not be drawn in question in this court on such appeal from the judgment.
    Whether that question can be considered in the Court of Appeals, on an appeal from a final judgment, is for that court to determine.
    Appeal from a judgment of foreclosure entered in this action.

      F. W. Earl and John H. Lockwood, for the appellants.

      H. C. Place, for the respondent.
   Opinion by Talcott, J.

Present—Barnard, P. J., and Talcott, J.

Judgment affirmed with costs.


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    EDWARD S. CLINCH, Respondent, v. THE SOUTH SIDE RAILROAD COMPANY OF LONG ISLAND, Appellant.

      Order made at Clumbers—when not appealable.

    An order was granted by a justice of the Supreme Court at chambers, in the first district, appointing a receiver of the property, franchise and effects of the defendant. It did not appear that the order had ever been entered in the second department. Held, that, being a chamber order, no appeal from it would lie until it had been so entered. The jurisdiction of the General Term in each department, on appeals from such orders, is, by the act of 1870 (chap. 408, § 10), confined to orders which have been entered in the department.
    Appeal from an order appointing a receiver of the defendant corporation.

      An appeal from this order has already been taken to the General Term of the first department, and its decision is reported in 8 Supreme Court Reports (1 Hun), page 636.

      Tracy, Catlin & Brodhead, for the appellant.

      John H. Bergen, for the respondent.

       Code, § 350.

   Opinion by Talcott, J.

Present—Barnard, P. J., Talcott and Tappen, JJ.

Appeal dismissed.


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    HENRY H. CLARK and ALFRED M. BARBER, Respondents, v. BENJAMIN SHUMAN, Impleaded, etc., Appellant.

      Partnership—Evidence—when admission of erroneous, not ground for new trial.

    The plaintiff sued defendants for a bill of corn, joining Shuman, and alleging that he was a partner in the business of running a distillery, which Shuman denied. A witness was asked, “ What information, if any, did you get in connection with Shuman’s connection with this case?” The defendant’s objection was overruled and witness answered, “ I learned that this gentleman, Mr. Shuman, was actively" engaged with the institution in some way—so much so that I had knowledge enough to make me believe he was a partner.” Held, that, considered by itself, the question was objectionable; but that Shuman having testified that he was actively engaged in the business, but for a commission and not as partner, and the admission of the question being not necessarily an admission of the latter part of the answer, which might have been stricken out on motion, and the first part of the answer being borne out by all the testimony on each side, the question and answer were not of a kind to mislead the jury.
    Appeal from a judgment in favor of plaintiffs, entered on the verdict of a jury at the Orange Circuit.

      Joseph Bell, for the appellants.

      Groo & Wiggins, for the respondents.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


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    THE PEOPLE ex rel. CORMICK CREEGAN v. HENRY DUTCHER, Police Justice, etc., Respondent.

      Chapter 370, Lams of 1873— Constitution, art. 6, section 19—power of Legislature under.

    The legislature has power to create the office of police justice in the village of Port Jervis, and his jurisdiction is sufficiently defined in the act creating the office. (Sec. 40, chap. 370, Laws of 1873.)
    The court is an inferior, local one, and, under article 6, section 19 of the Constitution, the justice could be elected or appointed at such times and in such manner as the legislature should direct.

      Brandon v. Avery (22 N. Y., 469) followed.
    Cebtiobaei to review a judgment rendered by the defendant as police justice of the village of Port Jervis.

      George A. Clement, Jr., for the relator.

      Lewis E. Carr and Thomas J. Lyon, for the respondent
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed with costs.


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    ROBERT MILLER, Respondent, v. ANDREW COATES, Impleaded with BERKELEY MOSTYN, Appellant.

      Duress —what is.

    The refusal to pay over a sum of money due to a party unless he executes a release of all other claims against the party paying it, does not constitute legal duress, which must be either of the person, or threats of personal injury. The mere withholding of goods or money which can be recovered by action is not.

    Appeal from an order of the Special Term, overruling the demurrer of the defendant Coates, to the plaintiff’s complaint. .

      James Emott and James M. Varnum, for the appellant.

      Henry S. Bennett, for the respondent.

      Foshay v. Ferguson, 5 Hill, 154.

   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment overruling demurrer of Coates reversed, and judgment given thereon for the defendant Coates, with costs.


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    ROBERT MILLER, Appellant, v. BERKELEY MOSTYN, Impleaded with ANDREW COATES, Respondent.
    Appeal from an order of the Special Term, sustaining a demurrer to the complaint, interposed by the defendant Mostyn.
    “ The complaint fails to set out any tangible fact giving the plaintiff a cause of action against the defendant Mostyn, and the order of the Special Term sustaining the demurrer should be affirmed.”

      Henry S. Bennett, for the appellant.

      James Emott and James M. Varnum, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Order of Special Term affirmed.


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    JOHN M. QUACKENBOS, Respondent, v. WILLIAM H. SAYER and others, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to foreclose a mortgage, in which action defendant interposed the defense of usury. The plaintiff had delivered to the defendant certain railroad bonds as the consideration of the mortgage, and the question was, whether they were loaned to defendant, or whether there was an actual sale of the bonds, and a purchase of the mortgage, by the plaintiff. The referee found the transaction to be a sale, and ordered judgment for the plaintiff. The General Term held, that the transaction was a loan, and reversed the j udgment.

      Daniel Finn, for the appellants.

      S. W. Fullerton and J. M. Wilkin, for the respondent.
   Opinion by Barnard, P. J.

Present— Barnard, P. J., Tappen and Talcott, JJ.

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


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    JOHN R. GLOVER, Respondent, v. HENRY THOMAS and another, Appellants.
    Appeal from an order made at the circuit, setting aside a verdict of a jury in,favor of the defendants.
    The General Term held, that the principal question in dispute between the parties was one of fact; that there was sufficient evidence in the case to support the verdict, and that the court erred in setting it aside.

      Daly & Brower, for the appellants.

      Robert Johnstone, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order reversed with costs.


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    JOHN WENZEL and another, Respondents, v. CHRISTOPHER MILLER and another, Appellants.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    This action was brought to set aside a mortgage on the ground of usury.
    The General Term held, that the evidence in the case was sufficient to sustain the referee in finding that the bond and mortgage were usurious, and affirmed his report.

      E. Beneville, for the appellants.

      Tracy, Catlin & Brodhead, for the respondents.
   Opinion by Talcott, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed with costs.


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    AARON ARNOLD, Appellant, v. DANIEL DUSENBURY, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The appeal was taken on the ground that the findings of the referee were contrary to the evidence, but the General Term, holding that the evidence was sufficient to sustain them, affirmed the judgment.
   Opinion by Talcott, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed with costs.


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    MARY E. TUGWELL, Administratrix, etc., Appellant, v. JOHN BUSSING, late Sheriff of Westchester County, Respondent.
    Appeal from a judgment in favor of the defendant, entered at the circuit. This action was brought against the sheriff for selling certain property, levied upon by him, altogether, instead of in parcels, by reason of which the plaintiff claims that her intestate lost the amount of an execution issued upon a judgment recovered by him against the owner of the property. The General Term held, that it was the duty of the sheriff to sell the property in parcels, and reversed the judgment.

      G. W. Rathbun and Wm. W. Mann, for the appellant.

      Close & Robertson, for the respondent.
   Opinion by Talcott, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

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


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    In the Matter of the Will of PETER CHRIST, Deceased.
    This was an appeal from the decision of the surrogate of Queens county, admitting to probate the will of Peter Christ. The court, after a review of the evidence, was of opinion that a case was presented which was quite sufficient to uphold the will, and that there was no defect in its execution.
   Opinion by Tappen, J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Decree of surrogate affirmed, with costs.


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    INCREASE C. SMITH, Respondent v. GUY R. PRENTISS and others, Appellants.
    Appeal from a judgment of foreclosure and sale of premises in Brooklyn. The court was of opinion that the evidence was sufficient to sustain the findings of the judge at Special Term, and ordered judgment of affirmance.

      C. C. & S. F. Prentiss, for the appellants.

      Merritt E. Sawyer, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Judgment affirmed, with costs.


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    JAMES A. WHITBECK, Respondent, v. THE BUILDING MATERIAL COMPANY, Appellant.
    “ This case presents for review a simple question of fact.”
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


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    JOSEPH LAMBDEN, Respondent, v. ELIZABETH H. TYLER, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The plaintiff was a real estate broker, and was, as the referee found, employed by the defendant to sell certain real estate, and was “ the procuring cause of the sale ” which was made of it, he having entered into the first negotiations with the purchaser, though the parties subsequently conducted their own negotiations as to the terms, etc.
   Opinion by Barnard, P. J.

Judgment affirmed, with costs.