text:
    PATRICK SANDS, Appellant, v. ELMER D. BENEDICT, Respondent.

      Sev. Bt., sections 1-8, chap. 3, part 4, title 1 — Magistrate—power of to hind over parties to keep the peace.

    The provisions of the Revised Statutes (§ 8, chap. 3, part 4, title 1), authorizing a magistrate to commit, in default of his giving security to keep the peace, a person who, in his presence, makes any affray, or threatens to kill or heat another, etc., justify the magistrate, within twenty-four hours after he has witnessed the affray, in issuing a warrant, and, without other evidence than his own senses furnished him, committing such person, on his failure to give such security.
    The limitations imposed upon the powers of sheriffs and constables, in similar cases, held not applicable.
    This action was brought against the defendant, for illegally causing the arrest and imprisonment of the plaintiff. The defendant was a justice of the peace, and issued a warrant for the arrest of the plaintiff, upon the justice’s own view of an affray, about twenty-four hours after it happened. The case was referred to a referee, who found that the arrest was lawful, and from the decision entered on such finding plaintiff appeals.

      Wm. E. Edmonds, for the appellant.
    The power to make the arrest ceased when the affray ended (Baynes v. Brewster, Gale & Davison’s Reports, p. 669; 1 East’s Pleas of the Crown, p. 305, 306; 10 Bing., 627; 1 Russell on Crimes, p. 599; cases of McKay, Rogers, McManus, 5 City Hall Recorder.)

      W. P. Chase, for the respondent.
   Mullin, P. J.:

In August,. 1872, the defendant, a justice of the peace of the town of Perinton, in the county of Monroe, was in the highway, near plaintiff’s house in said town, and, hearing loud and angry words therein, went into the house and found plaintiff in the bedroom where his wife was sitting. He was drunk. He told her he would knock the brains out of her damned head — would knock her head off; and he struck her with his fist on the side of the head. The justice ordered him to desist. The plaintiff said he would knock hell out of her; used profane and threatening language toward the justice, and finally ordered him out of the house, and approached him to put him out. The justice, fearing to have a personal conflict with the plaintiff, backed out of the door, having told plaintiff that he was a justice of the peace, and had the right to require him to keep the peace; and he required him to do it, and if he did not desist from his violence toward his wife, he would have him arrested. There was no person present to aid the justice, and he went to his office and there issued his. warrant for the arrest of said plaintiff; and the next day he was brought before the said justice, and when the warrant was read to plaintiff, he said it was all right. Upon being required to give sureties for his appearance at the next Court of Sessions, to be held in and for said county, he refused to give the same, and the justice thereupon made out a commitment of the plaintiff to the common jail, there to remain until he gave the security required, or was otherwise discharged; and the plaintiff was committed accordingly. He subsequently gave the bail as required, and was discharged, and thereupon brought an action against the justice for false imprisonment. The cause was referred to a referee, who dismissed plaintiff’s complaint; and from that judgment plaintiff appeals.

The ground on which the action is sought to be maintained, is, that the justice had not power to cause the arrest and commitment of the plaintiff upon his own view, except at the very time of the affray during which violence was used or threatened, and that the arrest and commitment in this case, being a day after the affray, the justice had no jurisdiction to cause the arrest, and was therefore liable for falsely imprisoning the plaintiff.

By section 1 of chapter 2, of part 4 of the Revised Statutes, magistrates are authorized to cause to be kept all laws for the preservation of the peace, and to require persons to give security to keep the peace, as provided in that chapter. Section 8 of said chapter provided, that every person, who, in the presence of any magistrate, or in the presence of any court of record, shall make any affray, or threaten to kill or beat another, or to commit any offense against his person or property, and all persons who, in the presence of such magistrate or court, shall contend with hot and angry words, may be ordered by such magistrate or court, without any other proof, to give such security as above specified; and, in case of refusal so to do, may be committed in like manner as above provided.

This case furnishes as forcible an illustration of the absurdity of the construction of the section cited, that would limit the power of the magistrate to arrest upon view a person committing a breach of the peace, as can be found in or out of the books. He found a drunken maniac not only threatening to kill his wife, but actually using violence toward her; he is physically unable to cope with the offender; he is driven from the house, and violence threatened if he does not at once leave it. There is no one present to make the arrest, or to aid the officer in making it. The officer may go before another justice and swear out a warrant, and then procure the arrest and commitment of the offender; but why not issue the warrant himself? If he may do it a moment of time before the affray ends, without other evidence than his own senses furnish him, why may he not do it an hour or a day after ? During the affray, he may be excited by fear or passion ; the day after, he would be quite likely free from feelings that would interfere with the exercise of a sound and impartial judgment.

I can appreciate the propriety of requiring a sheriff or constable to make an arrest to prevent a breach of the peace, at the very time it is being committed, but the reasons that justify the limitation in such a case, have no application to an arrest by a judical officer, charged with the duty of compelling persons to keep the peace.

The referee has, in his opinion, furnished reasons for the judgment he has rendered, which are to my mind sufficient to sustain it.

The judgment must be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Mullin, P. J.:

license: Public Domain

text:
    THE PEOPLE ex rel. ABNER A. ARMSTRONG, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad company—when put into possession of lands— Chapter 282, 1854.
    When a railroad has caused lands to he appraised, the appraisal to he confirmed, and the amount awarded deposited in conformity to the general railroad act, the court may make an order to put the railroad into possession, under chapter 282 of the Laws of 1854.
    Appeal from the decisions and proceedings of the Special Term, in proceedings by the New York Central and Hudson River Railroad Company, to acquire the lands of the relator, and from an order denying appellant’s motion for a writ of assistance.

      Edward Harris, for the appellant.

      H. V. Howland, for the respondent.
   Mullin, P. J.:

The only question presented by this appeal, is, whether this court has power to make an order that the railroad company, having procured the lands in question to be appraised, and the appraisal confirmed, in conformity to the general railroad act, be put into possession of the lands so appraised.

Prior to 1854, the power of the court to put the company into possession, was doubted. The legislature, at its session in that year, passed an act, by the fifth section of which, it is provided as follows, viz.: “In all cases of appraisal under this act and the act hereby amended, where the mode or manner of conducting all or any of the proceedings to the appraisal and the proceedings consequent thereon are not expressly provided for by the statute, the courts before whom such proceedings may be pending shall have the power to make all the necessary orders and give the proper directions to carry into effect the object and intent of this and the aforesaid act; and the practice in such cases shall conform as near as may be to the ordinary practice in such courts.”

Without stopping to inquire whether the court had power, independent of the section above quoted, to put a railroad company into possession of land appraised for its use, it seems to us quite clear, that such power is conferred by said section. The object and intention of the general railroad act, and of the act of 1854, were not only to vest the title in the company, but also the possession. Either without the other was of little practical value, and it seems to us incredible, that any body of intelligent men would have made it necessary for a company, after acquiring title, to submit to the delay that would attend an action of ejectment to obtain the possession. Such a litigation would not ordinarily terminate short of the Court of Appeals; and any one at all conversant with the business of that court for the last quarter of a century, knows that a judgment could not be reached in it, in less than from five to eight years. Such a delay would be fatal to any company.

Before the passage of the act of 1854, it was held at Special Term, in the case of Niagara Falls and Lake Ontario R. R. Co. v. Hotchkiss, that the railroad company that had obtained an appraisal of lands required for its use, was not entitled to a writ of possession or assistance, to put it in possession, notwithstanding the appraisal had been confirmed, and damages deposited pursuant to the directions of the court. It was at the next session, that the act above cited was passed, and it must have been intended to give to the court the power which had been denied it in the case referred to.

The act was not needed to enable the court to carry otit the powers conferred on it by the general railroad act. Such a power was necessarily incident to the grant of the power. But the legislature, probably to remove the doubt created by the decision, passed the act of 1854.

By the fifth section, the court is given the power to make all such orders as may be necessary to carry into effect the objects and intention of the general railroad act, and of the act of 1854, as well in the proceedings preliminary to, as those consequent upon, the appraisal of damages. There are no proceedings consequent upon the appraisal, that required any action of the court, not clearly prescribed by the act, so that legislation was not needed in relation to such subsequent proceedings. It may be asked, why the power to put the company in possession was not conferred in direct terms, instead of the. less distinct and positive terms used in the act of 1854. One reason might be assigned for it, and that is, that the legislature was of the opinion that no legislation for that purpose was necessary, and hence passed a provision, sufficiently general in its terms, to embrace not only that power, but such other powers as might be found necessary to perfect the proceedings. The power to put the company into possession, was so essential to the success of the railroad enterprise in the State, that an enlarged, rather than a restricted, construction should be given to the act of 1854.

The order which the court makes for putting the company into possession, is not a writ of assistance; that writ could only issue in certain specified cases, of which this is not one. But the order is in the nature of the writ of assistance; that is, it effects the same object. We are, therefore, of opinion, that the order of the Special Term be reversed, but without costs, as the question is a new one.

The order of confirmation must be amended (the counsel for the company consenting), by striking from it the requirement, that the owner of the land must give notice to the company before he can obtain the money from the bank, and if, within ten days after service of a copy of the order of confirmation as amended, and of this order, possession is not given upon demand made, then and not before, the order to put the company in possession shall be carried into effect.

Present—Mullin, P. J., Smith and Gilbert, J J.

Ordered accordingly.

       Chap. 282, Laws of 1854.

      16 Barb., 270.


text:
    THOMAS D. GREEN, Respondent, v. ALBERT SKEEL and CHARLES W. SKEEL, Impleaded with Calista Skeel, Appellants.
    Note— When principal hound hy addition of ward “ agent " to Ms agent's name.

    Where a person adds the word “ agent ” to bis name signed to a written instrument, and it is shown that he was at that time engaged in the business of his agency i the principal will be bound by the contract.

      De Witt v. Walton (5 Seld., 571) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered at the Onondaga Circuit.
    The action was brought upon a promissory note, signed by William Skeel, agent, and indorsed by the defendants above named.

      H. Ballard, for the appellants,
    cited De Witt v. Walton (5 Seld., 571); Pumpelly v. Phelps (40 N. Y., 67); Story on Agency (§ 147); 2 Kent Com. (9 th ed.), 852; Townsend v. Hubbard (4 Hill, 351).

      Andrew H. Green, for the respondent.
    It was proper to sue the note in name of the principal, and show by parol that the agent had authority, and did sign for her. (Edwards on Bills and Prom. Notes, 81, 83; Story on Agency, §§ 154, 160 a, 162, 270, 291, 446; Greenleaf on Ev., §§ 287, 288; Brockway v. Allen, 17 Wend., 40 ; Evans v. Wells, 22 Wend., 325-340; Hicks v. Hinde, 9 Barb., 528 ; Coleman v. First Nat. Bk., 53 N. Y., 388.) It is no defense to the indorsers. (Edwards on Bills, 191; State Bank v. Fearing, 16 Pick., 533 ; Mott v. Hicks, 1 Cow., 539; 88 Eng Com. Law., 265.) They cannot dispute the .legal capacity of maker. (Greenleaf on Ev., § 207, p. 292; Story on Bills, 74 (ed. 1860), §§ 110, 111; Edwards on Bills, etc., 282, 290, 686; Erwin v. Downs 15, N. Y., 575; Delaware Bank v. Jarvis, 20 N. Y., 226; Troy City Bank v. Lauman, 19 N. Y., 477, 479 ; Burrill v. Smith, 7 Pick., 294; 5 Wheat., 326; McGregor v. Rhodes, 88 Eng. Com. Law, 265.)
   Mullin, P. J.:

The defendants are sued as indorsers of a note, purporting to be made by William Skeel, agent, for the sum of $300, payable in four months, at the Syracuse Hational Bank, and dated 21st April, 1873.

The defense is, that, since the making and indorsing of said note, the word “ agtP has been added to the name of William Skeel, and that it was not on the note when indorsed by the defendants.

On the trial, William Skeel was called and examined as a witness, on the part and behalf of the plaintiff, and testified, in substance, that his wife, Calista Skeel, at the date of said note, was doing business in her own right, at Summit Station, where the note is dated; that he was acting for her as her agent, and the note was made in such business, and had the word agent annexed to his name when it was indorsed by the defendants.

The defendants were examined, and testified that the word “ agtP was not on the note when indorsed by them, and they did not know that Calista was carrying on business of any kind whén the note was indorsed by them.

The jury rendered a verdict for plaintiff, for amount of the note and interest, on which judgment was entered, and the defendants appeal. The verdict established conclusively, that the note was made by Skeel as agent for his wife, and that the word “agí” was on it when it was indorsed by defendants. It was competent for the plaintiff to show, that Mrs. Skeel was the party for whose benefit the note was made and indorsed.

It is difficult to reconcile the cases, so as to ascertain, with certainty, when a principal is bound by a writing, executed by a person who signs the same as agent. But it seems to be pretty well settled, that when the person, signing his name with the word “ agent ” added, is in fact the agent of the principal, and the writing is executed in the course of the business'of such agency, the principal is bound by a contract signed with the agent’s name, with the word “ agent ” added.

This position is at war with the ruling in the case of De Witt v. Walton, but that case has not been followed, if it is to be understood as deciding that the principal is not bound in any case by a writing, signed by the agent in his own name, with the "word “ agent ” added. It is possible that a different conclusion would have been arrived at in that case, had it been alleged and proved, that the person signing the note was the agent of the defendant in the business of publishing the Churchman, and that the notes were given in the course of that business ; but the principal difficulty in the mind of Selden, J., was, that the contract did not, on its face, purport to be the contract of the defendant. If that was essentia], no proof could have been given that would charge the defendant.

If Mrs. Skeel was not bound by the note, the addition of the word agent to the husband’s name, did not affect the liability of any party to the note. Skeel was, in that event, maker, and personally liable as such.

The judgment is-right and must be affirmed.

Present — Mullen, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

         Coleman v. First Nat. Bank of Elmira, 53 N. Y., 388 ; Story on Agency, 155.

      5 Seld., 571.


text:
    JAMES F. DALRYMPLE, Respondent, v. JOSEPH HILLENBRAND, Appellant.

      Promissory note—indorser—contract of.

    In this action, brought by the plaintiff against the defendant, an indorser of a promissory note, made by Altenbrand Bros., the defense was, that, when the note was made, the makers were not partners, they having then been adjudged bankrupts, and also that it was made without consideration, in fraud of the bankrupt law. Selcl (1), that by his indorsement the defendant guaranteed the genuineness of the signature of the makers, and that they had power to bind themselves by their contract; (2), that in any event the defense was not available against the plaintiff, a bona, fide holder for a valuable consideration, without notice, who had acquired title to the note before its maturity.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The facts are stated in the opinion.

      Daniel Pratt, for the appellant.

      Weed & Hammond, for the respondent.
   Mullin, P. J.:

On the 26th April, 1872, Altenbrand Brothers made their promissory note, payable to their own order, for $1,000, one year from date. It was indorsed in the name of the firm, and by the defendant and Chamberlain Brothers, and, before maturity, transferred to the plaintiff for a valuable consideration, and without any proof of notice to him of defect or illegality in said note in its inception or transfer. The note was duly presented for payment, and protested for non-payment, and notice given to the indorsers. The action is on the note, and the defense is that the makers were not partners when the note was made, having been adjudged bankrupts some months prior to its date. That it was without consideration, and was given in fraud of the provisions of the bankrupt law.

The defendant, as indorser of this note, cannot assail its validity on any of the grounds insisted on by him. Story, in his work on promissory notes, says, “ the indorsement of a promissory note is a guarantee on the part of the indorser, that the signatures of the makers and the prior indorsers thereon, are genuine, and that the prior parties to the note had power to do all that they had done, and to bind themselves by their contract.”

Again, the defenses set up are not available to the defendant against the plaintiff, who is a bona fide holder for a valuable consideration, without notice, and who had acquired title to it before maturity.

This disposes of the case, and it is unnecessary to examine any other of the appellant’s points. It is quite probable that illegal evidence was received, but it had no bearing on the questions on which the case is decided.

The judgment must be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       Page 157.

      Byles on Bills, 148; Edwards on Bills, 289; Erwin v. Downs, 15 N. Y., 575.

       McKnight v. Wheeler, 6 Hill, 492; Morford v. Davis, 28 N. Y., 481; Devlin v. Brady, 36 id., 531; Delaware Bank v. Jarvis, 2 id., 226.


text:
    MARY L. HAYCROFT, Plaintiff, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Defendant.

      ConiributM'y negligence—Infant—degree of ca/re required of.

    An infant is not held by law to the exercise of the same degree of care and caution that would be required of an older person; and in an action brought to recover for damages sustained by an infant, the question of contributory negligence is one of fact for the jury, and it cannot be determined by the court as one of law.
    Motion by plaintiff for a new trial, on exceptions ordered to be heard in the first instance at General Term.
    This action was brought to recover for injuries sustained by plaintiff at a railroad crossing in the village of Dunkirk. At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, which the court granted, on the-ground that it appeared from the evidence, that the plaintiff, by her own negligence, contributed to the injuries sustained by her.

      C. D. Murray, for the plaintiff.
    The question of contributory negligence should have been submitted to the jury. (Hackford v. N. Y. C. & H. R. R. Co., 53 N. Y., 654; 35 id., 38; Eaton v. Erie R. Co., 51 id., 544.) The plaintiff is not to be held to the same degree of care as an adult. (Costello v. S. & B. R. R. Co., 65 Barb., 92 ; 38 N. Y., 445 ; 36 id., 39 ; 37 id., 568.)

      James M. Willett, for the defendant.
    The question of contributory negligence is a question of law for the court. (Morrison v. Erie R. Co., Court of Appeals ; not yet reported.)
   Mullin, P. J.:

The nonsuit was granted in this case, I doubt not, on the evidence of the plaintiff herself, as she was the only person who could testify as to what she did, or omitted to do, on the occasion of her injury by defendant’s engine.

The plaintiff, at the time of the injury, was in her seventeenth year, and was on her way from her mother’s house to her school. She had to cross some five tracks on defendant’s road, and she had crossed, before being struck by the engine, three of those tracks. As she was crossing the third track, an express passenger train came along, and she stopped; and as she did so, she looked up and down the track, and saw no engine or car in motion. The view west was unobstructed for about a quarter of a mile. She did not look up or down the track but once after she stopped, and before being struck. She stood looking along the street she was in on her way to school; she remained standing some ten minutes, waiting for the express train to pass; and while so waiting, an engine came along from the west, without sounding the whistle or ringing the bell, at the rate of eight miles per hour, and struck her, knocked her down, and cut off all the fingers on one of her hands, except the thumb and forefinger.

I cannot concur with the learned judge by whom this cause was tried, that the question of concurring negligence was one of law for the court, and not of fact for the jury. The plaintiff, although of an age when she must be deemed competent to take care of herself, yet she was young and without the experience, especially in novel and dangerous situations, that older persons generally have. Her attention was naturally drawn to the train that just arrived, and she had the right to expect the usual signals from an approaching engine. She did look, after the express stopped, up and down the track to see if anything was approaching that might do her injury. Seeing nothing, hearing nothing, she waited until all danger from the express train should pass away, and was approached stealthily by an engine, struck and injured. How, if there is any allowance to be made, in measuring the degree of care which this young girl was bound to use, for her youth, her inexperience, for the tendency of persons of her age to allow their attention to be given to objects of interest in their immediate view, and to overlook dangers from causes not immediately in view, then it was for the jury to say, whether this young girl did not, under all the circumstances, use all the care and diligence to guard against danger, that could be reasonably required from one of her age. If no allowance is to be made for her youth and inexperience, the question was one of law, and properly disposed of by the learned judge. But I cannot think the law is so unjust as to hold this child to the exercise of the same degree of care and caution that would be required of an older person, and if not, the question should have been submitted to the jury. Because it was not so submitted, I am of the opinion that the nonsuit was erroneous; and the.judgment should be reversed and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

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


text:
    HERMAN RICE and W. W. RICE, Respondents, v. WILBUR J. MANLEY, Appellant.

      Contract, void by statute of frauds—performance of, prevented by false representations of third parrty—Liability of third pa/rty therefor— Measwe of damages on breach of contract to sell and deliver goods, determined by price at place of delivery.

    The plaintiffs and one Stebbins entered into an agreement for the purchase and sale of cheese, which was void by the statute of frauds. . The defendant, by false and fraudulent representations made to Stebbins, prevented him from performing his part of the agreement, whereby the plaintiffs sustained damages, to recover which they brought this action. Held, that, unless there was a contract between the plaintiffs and Stebbins for the purchase and sale of the cheese, the plaintiffs could not be damnified by the fraudulent representations of the defendant.
    By the terms of the said agreement, the cheese was to be delivered at Cattaraugus station, in Cattaraugus county. The referee allowed the plaintiffs to prove the value of similar qualities of cheese in New York city, and made that value, less the cost of transportation, the measure of damages in this action. Held, error ; that if property contracted to be sold, has a market value at the place where it is to be delivered, that price must control, unless the parties contemplated a different market; that resort can only be had to the price at other places, when there is none at the place of delivery.
    Appeal from a judgment entered upon the report of a referee. The plaintiffs were partners, and were engaged in the business of buying cheese in Cattaraugus and Allegany counties, and shipping the same to New York. On the 24th day of July, 1872, they made an oral agreement with one F. D. Stebbins, by which it was agreed that Stebbins should sell and deliver to the plaintiffs, at Cattaraugus station, 24,000 pounds of cheese, at the price of eleven cents per pound, the delivery to be made on the twenty-seventh of said month, at which time the plaintiffs were to take and pay for the said cheese. No part of the purchase-price was paid, nor was any part of the cheese delivered. The defendant had knowledge of the said agreement, and in order to prevent Stebbins from performing his part of it, and to become the purchaser of the cheese himself, he, without the knowledge or authority of the plaintiffs, caused the following message to be sent by telegraph from Little Yalley to Cattaraugus station :

      “ Little Valley, July 2íth, 1872.

      “ To F. B. Stebbins, Cattaraugus, N. Y.: If you can sell that cheese, do so. I don’t care for it.
    “E. RICE.”

      “ (Send by special messenger.) ”
    The defendant procured the message from the telegraph office at Cattaraugus station, upon its receipt there, and delivered it to Stebhins, who, believing that it had been sent by the plaintiff, Herman Rice, accepted a proposition made by the defendant for the purchase of the said cheese, and entered into a valid contract with him for the sale of it. The plaintiffs were ready and prepared at the time and place agreed upon, to take and pay for the said cheese, as they had agreed. The referee found that the contract between Stebbins and the plaintiffs was void by the statutes and laws of this State, but that Stebbins intended in good faith to carry it out in all respects as if he had been legally bound to do so, and that he would have done so but for the fraudulent acts of the defendant. He also found, “ that eleven cents per pound for cheese of that kind and quality, was the highest price paid on the 27th day of July, 1872, at the place of delivery, but the said cheese was purchased by the plaintiffs for the New York city market; that the value of the plaintiff’s oral contract, aforesaid, with said Stebhins, was sixty dollars, and the real value of said cheese, so purchased, was the sum of sixty dollars, at least, over and above the price agreed to be paid therefor, by virtue of said oral agreement, and that the plaintiffs’ sustained damages by reason of the wrongful acts of the defendant, aforesaid, in the sum of sixty dollars.” He found, as a conclusion of law, that the plaintiffs were entitled to judgment against the defendant for that sum.

      Cary & Jewell, for the appellant.

      Angel & Jones, for the respondents.
   Mullin, P. J.:

The case of Benton v. Pratt, is decisive of this case, if it has not been overruled. In that case it was held, that, where a eon-tract would have been fulfilled but for the false and fraudulent representation of a third person, an action will lie against such third person, although the contract was void by the statute of frauds.

In Dung v. Parker, it was held, that the defendant, who had falsely represented that he had authority to lease a store to plaintifí for two years, in consequence of which plaintiff was put to expense in procuring fixtures to fit it up, was not liable for the damages resulting from such misrepresentation, the contract of leasing being void by the statute of frauds. I am unable to discover any difference in principle between the cases first and last cited. In both, the party sued was acting as agent for others. .In both, he was guilty of false representation, by means' whereof the plaintiffs were injured; and in both, the contract was void by the statute of frauds. If the defendant was not liable in the one case, he ought not to be held liable in the other. The broad ground is taken by the Court of Appeals, that, whenever a plaintiff is bound to prove a contract to entitle him to recover, and that contract is void by the statute of frauds, neither the parties to it, nor any third person, can maintain the action. Unless there was a contract between Rice and Stebbins for the sale and purchase of the cheese, Rice could not be damnified by the fraudulent representation of the defendant.

The learned judge who wrote the opinion in Dung v. Parker, does not allude to the ease of Benton v. Pratt, nor to any of the cases that follow it, or that lay down the same proposition, notwithstanding the cases were cited by the respondent’s counsel.

Again, plaintiff ought not to have been allowed to prove the price of cheese in New York, and make that price, less the cost of transportation, the measure of damages. If property contracted to be sold, has a market-price at the place where it is or is to be delivered, that price must control, unless the parties contemplated a different market; and resort can only be had to the price at other places, where there is none at the place of delivery. The referee has estimated the damages upon the value of cheese in New York.

This was erroneous, and the judgment must for that reason be reversed.

Present — Mullin P. J., Smith and Gilbert, JJ.

Judgment reversed.

       2 Wend., 385.

       52 N. Y., 494.

        Supra.

         Durst v. Burton, 47 N. Y.. 167


author: Mullen, P. J.:

text:
    ANN E. HAMMOND, Respondent, v. MARY T. COCKLE and others, Appellants.

      Complaint—Joinder of causes of action.

    The complaint in this action alleged: That one Siphorus Hammond, in 1862, executed a deed of certain premises to his wife Davina, upon an agreement between them, that delivery of the same should take effect, and the same be recorded, only upon his deatii. That in 1870 Davina died, and Siphorus afterward married the plaintiff. That in 1872, Siphorus made his last will, whereby he devised his real estate to the plaintiff and certain of the defendants, and afterward died. That after the death of Davina, the defendants or some of them surreptitiously procured the said deed; caused the date of the certificate of acknowledgment of the same to be altered; and procured the same to be recorded, in order to make it appear of record that certain of them, as heirs at law of Davina, were the owners in fee of the whole of the lands described therein. The plaintiff demanded judgment, that she be declared the owner in fee of an undivided fourth part of said premises, and entitled to dower in the whole thereof; that the said deed be declared void, and that it be canceled of record ; that said premises be partitioned among the owners thereof; and that her dower interest be ascertained and admeasured to her. Held, on demurrer for improper joinder of causes of action, that the complaint did not contain three distinct and separate causes of action; that it presented a case in gghich the plaintiff might be entitled to three kinds of relief, upon the same state of facts.
    Appeal from, an order of Special Term, overruling a demurrer. The defendants demurred to the complaint, on the ground that several causes of action had been improperly joined therein, to wit: One for an admeasurement of dower; one for a partition of lands; and another to remove a cloud upon title.

      Humphrey & Lockwood, for the appellants,
    cited Dewey v. Ward (12 How., 419); Sweet v. Ingerson (id., 331) ; Hulce v. Thompson
      (9 id., 113); Maxwell v. Farnam (7 id., 236; 53 Barb., 238); Varick v. Smith (5 Paige, 137).

      Abraham Thorn, for the respondent.
   Mullen, P. J.:

The complaint in this case alleges the making, by Siphorus Hammond in his life, of a deed of certain premises, therein described, to Lavina Hammond, his then wife; the delivery of the same to take effect only on his death; the rescission of the said arrangement by mutual agreement of the parties; that said Hammond made provision for his said wife by will; the death of the said Lavina; his marriage to the present plaintiff, and the making of another will, devising to her one undivided fourth part of the said premises, and the residue to the defendants; his death; proof of said .will; and that the defendants, having obtained possession of said deed, so executed in favor of his first wife, caused the date of the acknowledgment to be altered, and then put it on record, and now claims to own said premises in fee as heirs of the said first wife. The prayer for relief is, that said deed be set aside, the premises partitioned, and the widow’s dower set off to her. The defendants demur, because of the joinder of three distinct causes of action, not arising out of the same transaction connected with the same subject-matter. The demurrer was overruled, and defendants allowed twenty days to answer.

The complaint does not contain three distinct and independent causes of action. It presents a case in which the plaintiff is or may be entitled to three kinds of relief upon the same state of facts. A court of equity, having obtained jurisdiction of a cause, would grant such relief as the parties showed themselves to be entitled to, and for that purpose would entertain jurisdiction of eases which appropriately belonged to courts of law, in order to avoid multiplicity of suits. The court, at the trial, will determine how much of the relief demanded can properly be granted. That question is not before us on this demurrer. The order must be affirmed, with leave to defendants to answer on payment of costs.

Present — Mullen, P. J., Smith and Gilbert, JJ.

Ordered accordingly


author: Lamont, J.: Mullin, P. J.:

text:
    TRUMAN R. COLMAN, Appellant, v. EDWIN R. SHATTUCK and others, Respondents.

      Eighway iate on lands of non-residents — supervisors cannot direct collection of— is not put on roll by assessors — “Tract,” — when sufficiently designated—Affidavit of assessors—position of, on roll—Majority of assessors may act—Presumption of regularity—Error in retwrn — when disregarded.

    This action was brought to have defendant’s title to certain real estate, purchased at a sale by the comptroller for non-payment of taxes, declared void. The land, which belonged to a non-resident, was designated on the assessment roll of the town of Portville, as lot fifty-four, town one, range three, and was assessed, in 1856, $3.30 for a highway tax, for the non-payment of which, and of other taxes, it was sold.
    It was objected that the tax was placed back of, and was not covered by, the warrant of the supervisors; that it was not verified by the assessors; and that there was no indication of the tract in which the lot was situated. Held (1), that the supervisors’ warrant cannot command the collection of any tax levied on the land of non-residents, and that payment thereof cannot be enforced by the county treasurer or town collector. The statute simply requires the warrant of the supervisors to be annexed to the roll; it may be either back or forward of the list of non-resident lands. (2.) That it was not necessary that the tax should be verified by the assessors, as highway taxes on the land of non-residents are not assessed, nor put on the rolls, nor valued or verified by them. (3.) That, as it appears by the public statutes of this State that the town of Port-ville is a part of the territory known as the Holland Land Company’s lands, the designation of the premises on the assessment roll indicated the tract, and gave all necessary particulars required by law.
    The land was also assessed, the same year, $3.44, for State and county tax. The roll began with a list of persons assessed by name — twenty-two pages; on the next page was written the assessors’ affidavit; and on the back side of the same leaf was the assessment of the lot in question. The affidavit reads: “We, etc., do swear, etc., we have set down in the foregoing roll,” etc. It was objected that the assessment on this lot was not verified by the affidavit. Held, that the objection was properly overruled. The statute does not prescribe on what part of the roll the affidavit shall be; it says, “the oath shall be written on said roll.”
    The affidavit was made by two assessors only, no reason appearing why the third did not join. Held, that a majority of the assessors may act without the third, both in making and verifying the roll.
    It was also objected that the assessors did not certify to the supervisors with their roll, the name of the non-acting assessor, with the cause of his omission to act.'
    • Eeld (1), That the only object of such certificate was to enable the district attorney, in proper cases, to prosecute the delinquent. (2.) That the statute did not require it to be on, or in, or attached to, the assessors’ roll.

      The fact that, after the lapse of more than seventeen years, papers, required by law to be filed in the town clerk’s office, cannot be found there — especially where the search has been made by persons whose interests were adverse to the tax-title — is not sufficient to rebut the presumption of the regularity of all the proceedings created by the statute.
    The return to the comptroller for the year 1858, was three cents, and that for 1860, five cents too much. Held, that the title acquired under the sale was not thereby invalidated.
    Appeal from a judgment rendered at Special Term dismissing' the complaint with costs. The facts are stated in the following opinion of Lamont, J., delivered at Special Term.
   Lamont, J.:

The object of this action is to obtain a judgment, declaring void defendants’ title to real estate derived from a sale and conveyance made by the comptroller for non-payment of taxes, as a cloud on plaintiff’s title, and to compel defendants to release, etc.

The land is lot fifty-four, in township one, range three of the Holland Land Company’s lands (so called), situated in the town of Portville, Cattaraugus county, plaintiff’s title to which is traced through divers mesne conveyances from the Holland company, the first deed being dated in 1835. Defendants’ title rests upon a deed from the comptroller after a sale of the same lot for unpaid taxes, made in November, 1866, which deed was executed in December, 1868. Such conveyance by the comptroller, is made by statute presumptive evidence that the sale and all proceedings prior thereto from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular according to the provisions of this act and all laws directing or requiring the same or in any manner relating thereto. The taxes in question were levied in 1856, 1858 and 1860, subsequent to the passage of the above act, and the defendants may therefore rest upon the legal presumption until it is overcome by proof to the contrary. The premises were assessed, returned and sold as the land of a non-resident, and the fact that it was non-resident land was admitted on the trial.

The numerous objections of the plaintiff to the defendants’ title, may conveniently be divided into three classes: first, those patent upon the face of the assessment rolls; secondly, those arising out of the extrinsic evidence of witnesses ; and thirdly, those made to the returns of the taxes to the comptroller under which the lot was sold. It is the duty of the court to examine them in detail.

The taxes stand on all the rolls assessed on lot fifty-four, town one, range three; and for the year 1856, one is a highway tax for $3.30, and one a State and county tax for $3.44; for the year 1858 the tax is a State and county tax for $8.46, and for 1860 the tax is a State and county tax for $8.16.

It is objected to the highway tax (on the roll of 1856), that it is placed in the assessment roll bach of the supervisor’s warrant, and is not covered by such warrant; and that it is bach of the assessors’ affidavit and not verified by such affidavit; and that there is no indication of the tract in which the assessed lot is situated. The supervisor’s warrant cannot in any case refer to or command the collection of any tax whatever, levied on the land of non-residents. The warrant must conform to the statute, commanding the collector to collect from the several persons named in the assessment roll, the several sums mentioned in the last column of such roll, opposite to their respective names, etc. It is true, any person owning non-resident taxed lands may pay such tax voluntarily to the collector. So may he pay the same to the county treasurer before the latter makes his return to the comptroller, Such payments cannot, however, be enforced either by the county treasurer or the town collector, nor does the warrant command it. There is no statute that requires the warrant of the supervisors to be either bach or forward of the list of non-resident lands. The warrant is to be annealed to the assessment roll. This objection is not tenable.

The next objection, that this highway tax is bach of the assessors’ affidavit verifying the roll and is not verified by such affidavit, must also fail, for the reason that highway taxes on lands of non-residents are not assessed, nor put on the rolls, or valued or verified by the assessors. The commissioners of highways make this assessment, valuing the land according to the valuation of the preceding year’s assessment roll; or if the land was omitted from the last assessment roll, the commissioners make an original assessment of their own. The commissioners file with the town clerk a list of such lands so taxed. Copies of such lists go to the overseers of highway whose districts include the lands, and in default of being worked out or paid, the overseer makes return with his affidavit to the supervisor of the town, and the supervisor lays the, same before the board of supervisors, and the board of supervisors levies the, amount on the lands so returned, to be collected like other non-resident taxes. When the assessors for the year 1856 had completed and verified the assessment roll, this highway tax. was not on it. The board of supervisors put it on, after the roll, had passed beyond the control of the assessors. The assessors could not verify a thing not in existence; what they were called on to verify, was the roll as they made it, not as another body. should afterward make it.

Plaintiff’s next objection to this highway tax, is, that there is no indication of the tract in which the lot is situated. By the public statutes organizing and bounding the counties and towns of the State, it appears that the town of Portville, in Cattaraugus county, is a part of the territory known as the Holland Land Company’s lands, these lands being designated by name in the various boundaries. These statutes show the townships and ranges into which such lands are divided. To designate land in Portville as being in a township and range, is to designate and name a tract of land. of which the court and all persons take notice. These tracts, bounded by the exterior lines of intersecting .townships and ranges, are accurately ascertained, and are the only tracts subdivided into lots. The designation of the premises in question as lot fifty-four, town one, range three, on the assessment roll of the town of Portville, indicates the tract, and gives all necessary particulars required by law. This does not conflict with Hubbell v. Weldon. In a case subsequent to that, the court say: “ The number of the lot, if that can be ascertained, is the only designation which by law is made necessary, as to lands not occupied.” Moreover, there is a page of the roll, headed, “ List of lands belonging to non-residents in township number one, range three, formerly known as the Holland Land Company’s lands; ” and under such heading is a list of lands, with valuation, etc., including this lot fifty-four, town one, range three, assessed for the State and county tax. This list is continued on the next page, which is headed, “ List of lands situate in township number two, range three, of the before mentioned lands.” On the sixth subsequent page follows, under a heading that reads, “Nonresident highway district number ten,” a list of lands in towns one and two, range three — ten lots in all; and on the next page, headed, “Non-resident highway district, number six,” is a list of lots in town one, range three, including this lot fifty-four. No other assessment or list of land intervenes between the lands assessed as Holland Land Company’s lands, so called, and the assessment for these highway taxes. The designation of Holland Land Company’s land may well apply to the whole, especially as this lot fifty-four, town one, range three, is found in both places. A case referred to in Blackwell on Tax Titles’ is analogous: “ An assessment on balance of land on ranch A, 10,090 acres, at four dollars per acre, $40,360, was held valid, it appearing by the assessment roll that the rest of the ranch was assessed in lots as comprehended within the plat of a town, some of which lots were assessed to the same owner.” In the present case no owner is assessed in either place, but the same lot is assessed as non-resident in two places, contiguous, as before mentioned, under one heading, naming the Holland Land Company’s lands; and no other name or designation of a different tract comes between the two. The objection cannot prevail.

Plaintiff’s next objection, relating to the assessment on the roll of 1856, for the State and county tax, is, that the assessment of the lot is bach of the assessors’ affidavit of verification, and is not covered by it. The roll begins with an alphabetical list of persons assessed by name — twenty-two pages; on the next page is written the assessor’s affidavit; and on the baok-side of the same leaf is the assessment of this lot. The criticism is, that the affidavit following the wording of the statute, reads: “ We, etc., do swear, etc., we have set down in the foregoing assessment roll,” etc. “ Foregoing,” says the counsel, applies only to what precedes the affidavit, whereas the assessment of lot fifty-four follows the affidavit. This is but a partial statement, and attempts to divide what is indivisible. The affidavit does not say the foregoing part of the assessment roll, but the foregoing assessment roll; that is, the whole roll is included — not a part of it only. Most of the listing does, in fact, precede the affidavit, so that the affidavit by verifying the roll, as a whole, and not merely a fragmentary part of it, covers, includes and verifies the whole roll, as it stood when the affidavit was made, although a minor part of the assessment extends further back than the page containing the affidavit. This assessment of lot fifty-four is, however, on the same leaf—the same identical piece of paper on which the affidavit is written. Besides, the statute calls and deems this document a “roUf “an assessment roll.” What is, strictly and technically, a roll ? A schedule of parchment, which may be turned up with the hand in the form of a pipe or tube, sheet to sheet, tacked together in such manner that the whole length might be wound up together in the form of spwal rolls. Wind up this assessment roll in that style, and everything in it precedes the assessors’ affidavit. It is ball-like: * * * in se ipso totus teres atgue rotundus. The statute does not prescribe on what part of the roll the affidavit shall be; it says the “ oath shall be written on said roll.” The objection must be overruled.

Plaintiff’s next objection is, that this affidavit is made by two assessors only, no reason appearing why the third assessor did not join. A majority of the assessors may act without the third, both in making and verifying the roll. This appears by the language of the statute. “ When the assessors, or a majority of them, shall have completed their roll, they shall severally make oath,” etc,

“If any assessor shall neglect, or from any cause omit to perform his duties, the other assessors, or either of them, of the town or ward, shall perform such duties,” etc. The special particularity of these statutes, takes the case out of the general rule, applicable where a power, authority or duty is confided by law to three or more persons; but even under the general rule, where the names of a majority appear, the presumption is that all acted. The court in that case remark the distinction where the statute does, and where it does not contain a provision that a majority may act. And so does Church, Ch. J., in People v. Nostrand. The provisions of the statute relating to assessors are very special, that the other assessors or either of them shall perform the duties of the one neglecting or omitting to perform, and see Stewart v. Wallis marking the distinction where special provision is made, per W. F. Allest, J. From the face of the affidavit, the presumption would be that all the assessors acted, although but two assessors verify; and, by the statute, the roll and the affidavit are good if only the two did act. There is a further objection, that the assessors have not certified to the supervisors, with their assessment roll, the name of the non-acting assessor, with the cause of his omission to act. The statute, as before observed, shows that the omission of one assessor to act, does not invalidate the assessment, as in such case the other assessors (or either of them), are required to do the duties of the one neglecting. The object, and the whole object, of this provision requiring assessors to certify such an omission to the board of supervisors, appears by another section. It is to enable the supervisors to transmit to the comptroller, the name and place of abode of the delinquent, so that the comptroller may give notice to the district attorney, to the end that the penalty (if incurred) may be enforced. The statute does not say that the certificate shall be on or in the assessment roll, or attached to it. If the certificate is sent at the same time, contemporaneously with the roll, the statute is satisfied. It is then certified with the assessment roll. But even if such certificate were held to be necessary to be written on the roll, it would be presumed in this case to have been so written, because on the roll produced, two entire leaves next preceding the last leaf of the roll, have been torn out, leaving short stubs at the base. We are required to presume everything to have been done necessary to be done, “from and including the assessment of the land,” in favor of the title under the comptroller’s deed, and this mutilated roll cannot overcome the legal presumption that this certificate was on it, where no proof whatever is offered on the subject. There is nothing in the decision of the Commission of Appeals, in Bellinger v. Gray, in, conflict with what has heen said on this point. An objection is made to the assessment of 1858, that the tract in which this lot is, has not been named. The lot is assessed as being lot fifty-four, town one, range three, 150 acres. For reasons already given, this is held sufficient.

The first class of objections being disposed of, the second is to be considered, consisting of objections arising out of the extrinsic evidence of witnesses. The plamtiff has given some testimony as to a search among the papers in the town clerk’s office, and the papers in charge of the clerk of the board of supervisors, with the view of showing that the list of non-resident lands, directed by the statute to be made by the commissioners of highways, and filed with the town clerk apportioning the highway labor, was 'not made and filed by them; and that the return to be made by the overseer of highways with his affidavit to the supervisor, and by the latter laid before the board of supervisors, was not made; also that notice was not given or posted by the overseer as the statute directs.

These transactions were more than seventeen years before the trial. After so many annual elections and changes of all these officers, including town clerks and clerks of boards of supervisors, the singularity would have been if these papers had been found. A paper, however, was discovered, filed in the town clerk’s office, May 6, 1856, containing a list of non-resident land assessed for highway labor, among which is this lot fifty-four, town one, range three, 150 acres, assessed to five and one-half days’ labor at $3.44. To this is attached a warrant of the commissioners of highways, directed to the overseer of the district number six. The warrant is a printed form, and gives explicit directions to the overseer to notify the agent, etc., or to affix a written notice on the outer door of the place where the last town meeting was held, etc. The length of the notice to be given, and all other particulars are specified in terms such as the statute requires, on the same paper, and at its head is also a printed form instructing the overseer as to his duties in making return to the warrant under oath, on or before the first day of October, and telling him that blanks for such return will be found with the supervisor or town clerk, with an affidavit thereon. This tends pretty strongly to show that all the officers connected with this business, were aware of the duties enjoined by statute. The further fact that this list is copied* in ewtenso by the board of supervisors on the assessment roll of the same year, carries further conviction or inference that a return was made to the supervisors. Where else did the supervisors procure these lists of taxes? The list and warrant of the commissioners are indorsed “copy,” showing there was an original, and such original is the identical paper which should have been returned to the board of supervisors. It appears that the search in the town clerk’s office was made not only after the lapse of so many years, but principally by persons adverse in interest, or in the interest of those adverse to the tax title, not over anxious for the preservation of the muniments of that title. The, evidence falls far short of disproving the presumption that the overseer posted a proper notice and made a proper return. It also discloses that one of the assessors of the year 1856, was sick and unable to attend to his duties. It is presumed he had notice of the meeting and action of his associates, nothing going to show he was not notified. Taking all the oral testimony in consideration, with the proofs in writing, the statutory presumption in favor of the comptroller’s deed, stands unaffected. This brings us to the third class of plaintiff’s objections; that is, those made to the returns of the taxes to the comptroller under which lot fifty-four was sold. The plaintiff claims that the taxes returned were returned for too large an amount, not corresponding with the sums assessed on the rolls. The returns required to be made to the comptroller, consist of the affidavit of the town collector and the certificate of the county treasurer in the manner specified in the statutes. This latter section runs unaltered through the subsequent acts, In the acts of 1850 and 1855, an additional clause was inserted, requiring collectors to return and deposit with the county treasurers the original rolls. In other respects the twenty-sixth section has been copied in the acts referred to. In effect, therefore, the portions of section 26, so copied, are to be considered as having been in force since the Revised Statutes. By an act, subsequent to the Revised Statutes, the collector is required to make am, addition to the tax on the roll: “ Whenever any collector shall make return to the county treasurer for any unpaid taxes, he shall add to the several sums so returned by him five per cent, which shall go to the credit of the county, and be eolleoted toith said unpaid taxes.” Five per cent added to the highway tax makes it $3.46, as returned. Five per cent added to the State and county tax of 1856, makes it $3.61, as returned. Five per cent to the tax of 1858, makes it $8.88, three cents less than as returned; it was returned for $8.91. Five per cent to the tax of 1860, makes it $8.56, five cents less than as returned; it was returned for $8.61.

It appears, therefore, that for the two taxes of 1856, the returns were for the proper amounts; but that the return for the year 1858, was for three cents too much, and for the year 1860, five cents too much. Some other provisions of the statutes, relating to the additions to the tax standing on the assessment roll, may here be considered. From the first day of August following the year in which a tax is laid, the tax remaining unpaid draws interest yearly at the rate of ten per cent. The comptroller is to sell for tax, interest and charges. The expenses for printing lists and transmitting, and for publishing notices of sale, are charged on the land and apportioned by the comptroller. An equal part of such expenses shall be added to the taxes, interest and other charges, on each parcel of land out of which sales are made.” All these are additions to the original tax. If the collector’s mistake of three or five cents, in his addition which the law requires him to make, is fatal, so would he a like error of the comptroller, in adding expenses, interest and charges. The apportionment by the comptroller, in a case like that of the Buffalo Reservation, would present a miracle of accurate figuring, if not a single lot should be found charged three or five or eight cents more than a mathematically equal amount. In Thorns v. Nott it is said, the fact that the total footing up of the separate assessments on the tax roll was seven dollars more than the amount directed to be levied did not invalidate the tax. There was, probably, an addition to all the taxes in the school district, and an excess greater on any parcel of 150 acres than we find in the present instance. The excess here is less than in any of the cases referred to in Blackwell on Tax Titles. What the extra amount was in Ritter v. Worth, does not appear. By chapter 338, Laws 1858, a “ legal irregularity” in assessments in the city of New York, or “in proceedings to collect the same,” being alleged and proved, required the assessment to be vacated. The General Term of this court refused to vacate such an assessment, which illegally included two per cent for making the assessment, on the ground that the amount was very small.” In the matter of Lewis v. The Mayor of New York, by looking at page 164, it appears the assessment on the lot there was $1,324, and the illegal addition, $26.48. Mr. Blackwell, in his work on tax titles, says that in some of the States, the power to sell land for the non-payment of taxes, does not arise until the delinquency of the owner has been judicially ascertained. There is a judgment and a precept for the sale. This author gives the following instance of a variance between such judgment and precept: “A material variance between the precept and judgment upon which it is based, is fatal to its validity. Thus in Pitkin v. Yaw, where the judgment was for ninety-nine cents, and the precept recited a judgment for $1.25, it was held to be a material, and therefore a fatal, variance. The precept described a judgment more than one-fourth larger than the one actually rendered. Trifling variances may be disregarded, but one which destroys the legal identity of the proceedings cannot be sustained.” Broom, in his Legal Maxims, says the maxim, “Be minimis non cwrat lex,” has been applied to support a rate in the assessment in which there were some comparatively trifling omissions of established forms. It was also applied to the sum of two dollars, in an application to compel the satisfaction of a judgment and set aside an execution, So in a usury case, where fifty-four cents was reckoned as a dollar. In the redemption of lands sold on execution, a strictly statutory proceeding, the sheriff acts under a special authority, and has no power -to dispense with any of its requirements. It is somewhat analogous to the present case, regarding the strictness with which the statute must be followed. Yet an error of ten cents was overlooked in Ex parte Becker. Judge Bkostsoit applied the maxim in that case; and so did Paige, J., in Hall v. Fisher, where the mistake whs thirty cents ; and see Colman v. Anderson. The plaintiff in his complaint sets out in detail the errors of which he complains, and on which he founds his action, specifying all the objections above noticed, except this of an excess in the return above the actual taxes, from which I conclude he did not deem this trifling sum of excess one of importance, or worthy of mention. The objection however was raised upon the trial, and has been carefully examined. My conclusion is that the trifling or nominal sum of three cents in one return, and five cents in another, does not invalidate the title acquired under the comptroller’s sale and conveyance. All the plaintiff’s objections are accordingly overruled.

D. H. Bolles, for the appellant.

No presumption exists in favor of the regularity of the proceedings of public officers except such as is created by statute. (Jackson v. Shepard, 7 Cow., 88; Bunner v. Eastman, 50 Barb., 639; Varick v. Tallman, 2 id., 113; Striker v. Kelly, 2 Den., 323; Beeknan v. Bingham, 5 N. Y., 366.) Every preliminary, having even the semblance of benefit or protection to the property-holder, must be complied with. (Rea v. M’Eachron, 13 Wend., 465 ; Ford v. Walsworth, 15 id., 450; Jackson v. Esty, 7 id., 148; Bloom v. Burdick, 1 Hill, 141; Atkins v. Kinnan, 20 Wend., 241; Sharp v. Speir, 4 Hill, 76 ; id., 92 ; Adriance v. McCafferty, 2 Robt., 153; Westfall v. Preston, 49 N. Y., 349; Westbrook v. Willey, 47 id., 457 ; In re Douglass, 46 id., 42; Nat. Bank v. Elmira, 53 id., 49.) If the land is sold for an arrearage of taxes for several years, and the tax for any one is void, the entire sale is void. (Laws of 1855, chap. 427, §§ 33, 34, 44, 45, 50; Blackwell on Tax Titles, 280; Moulton v. Blaisdell, 24 Me., 283; Hayden v. Foster, 13 Pick., 492; Wallingford v. Fiske, 24 Me., 386; Elsworth v. Shaw, 1 Greenl., 335; Hardenburg v. Kidd, 10 Cal., 402.)

It follows that the defendants’ title must be held good, and the plaintiff’s title invalid; and the complaint is dismissed with costs.

Prom the. judgment entered at Special Term, an appeal was taken to this court.

A. Gr. Rice, for the respondent.

Mullin, P. J.:

I have carefully examined the objections made by the appellant’s counsel to the regularity of the proceedings in assessing the plaintiff’s land, and in the sale and conveyance of the same for the taxes assessed on the same, and I am of the opinion that they were properly disposed of by the judge at Special Term.

For the reasons assigned by him in his opinion, I think the judgment should be affirmed with costs.

Judgment affirmed, with costs.

       Laws of 1855, chapter 437, section 65.

       1 R. S., 396, § 37.

      Id., 397, §§ 1, 8, 9, 10, 13; id., 403, § 28, copied in § 7, chap. 427, Laws of 1855 ; 1R.S., 405, § 43, copied in § 22, same act of 1855.

       1 R. S., 396, § 37.

       1R. S., 505, §§ 19,32; Trustees of Angelica v. Morse, 56 Barb., 380.

       Laws of 1837, chap. 431, §8.

       1R. S., 506, § 24.

       Id., § 25.

       Id., 511, § 47.

       Id., § 49.

       Id., § 50.

       1RS., 391, §§ 13, 13.

       Hill & Denio, 139.

         Dike v. Lewis, 3 Barb., 347.

       Page 133, note, citing Patten v. Green, 13 Cal., 335.

       Laws of 1851, chap. 176, § 8.

       Bouvier Law Dic., word “roll.”

         Laws of 1851, chap. 176, § 8.

       Above, § 8.

      1R. S., 394, §80.

      2 R. S., 555, §27.

       Doughty v. Hope, 3 Denio, 252, 253.

       46 N. Y., 383.

      30 Barb., 347.

      1R. S., 394, § 30.

      1R. S., 419, § 2.

      51N. Y., 610.

       1 R. S., §399, 10; id, 402, § 26.

       Laws 1850, chap. 298, §§ 4,114 ; Laws 1855, chap. 427, §§ 4, 92.

       Ely v. Holton, 15 N. Y., 598, 599.

       Laws 1847, chap. 455, § 16.

       Laws 1855, chap. 427, § 26.

       Id., § 44.

       Id., § 37.

       Id., § 86.

       Fellows v, Denniston, 28 N. Y., 420.

       1 N. Y. Supreme C. R., Addenda, 22.

         Pp. 159, 16O.

       1N. Y. Supreme C. R., 406.

       35 How., 162, 168, 169.

       Pp. 26,183.

       13 Ill., 251.

       Blackwell, etc., 209.

       Page 147.

      Bergen v. Boerum, 2 Caines, 258.

       Conger v. Tradesmans’ Bank, Hill & Denio, 85.

       People v. Covell, 18 Wend., 598.

       4 Hill, 613.

       9 Barb., 29.'

       10 Mass., 115.


text:
    CALVIN T. CHAMBERLAIN, Appellant, v. JOSEPH APPLEGATE and others, Respondents.

      Undertaking on appeal—construction of—liability of sureties undm'— Code, §§ 335, 338 —Measure of damages.

    An action was brought by a vendor, to compel the specific performance of a contract for the purchase of land, in which judgment was recovered establishing the amount due on the contract, adjudging that the defendants should be barred and foreclosed of all right, claim, etc., in the land, and directing a sale thereof by the sheriff, and payment to the plaintiff out of the proceeds of such sale of the amount adjudged to be due, with interest and costs. No provision was made for the payment or recovery of any deficiency which might arise on the sale. The defendants appealed to the General Term, and gave the undertaking upon which this suit was brought. It was in the form prescribed by section 335 of the Code, instead of that prescribed by section 388. It recited that a judgment had been recovered against the defendants, and provided for the payment of costs, and the amount directed to be paid by the judgment, and all damages awarded against them on appeal.
    The judgment was affirmed, but no damages were awarded. Subsequently the land was sold, but did not bring enough to pay the amount due to the plaintiff. This action was brought to recover the deficiency. Prior to its commencement, all the costs of the original action had been paid.

      Held (l),that though the undertaking was not in the proper form, yet, as it secured" the end for which it was given, and stayed all proceedings on the judgment, it was valid as against the defendants who subscribed it; (3), that as no amount was directed to be paid by the judgment by the defendants, they were only liable for the difference betwen the amount bid for the land at the time of sale, and the amount which would have been bid at the time at which the judgment directed it to be sold, with interest on such amount to the time of the actual sale; that as no difference was proved, it could not be presumed to exist, and the plaintiff was only entitled to nominal damages; (3), that the defendants were entitled to costs.

      Appeal from a judgment entered at the circuit, in a cause tried by the court without a jury, by which the plaintiff recovered nominal damages only, and the defendants recovered costs.

      D. H. Bolles, for the appellant.

      A. G. Rice, for the respondents.
   Opinion by Mullin, P. J.

Judgment affirmed.


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    DANIEL TRIPP, Respondent, v. GERMON W. PULVER, Appellant.

      Trover — when action will lie — Demand—when must he alleged and proved.

    The plaintiff agreed to sell a horse to the defendant for $140, receiving forty dollars at the time of sale, and delivering the horse to him. On the same day plaintiff demanded the remaining $100 of the defendant, who refused to pay the money, claiming that the price of the horse was only forty dollars. Plaintiff offered to return the forty dollars, and demanded the horse, which defendant refused to deliver. In an action to recover the value of the horse, 7¿eM,that, as the minds of the parties had never met, there was no sale of the horse, and that an action of trover would lie.
    Where a person has come lawfully into the possession of personal property, a demand must be made before trover will lie. Where a demand, though not alleged in the complaint, is proved upon the trial, an amendment to the complaint should be allowed, inserting such allegation; and this will be done even on appeal to the General Term.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Isaac D. Garfield, for the appellant.

      Wm. C. Ruger, for the respondent.
   Opinion by Mullin, P. J.

Judgment affirmed.


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    ALEXANDER J. VROMAN and others, Respondents, v. THE AMERICAN MERCHANTS’ UNION EXPRESS COMPANY, Appellant.

      Common carrier—failure to deliver goods within a reasonable time—damages for— measure of— Stipulation in receipt, limiting liability— effect of.

    The defendant received merchandise at Syracuse, to he delivered in Chicago, from the plaintiffs, who took a receipt therefor containing a stipulation that the defendant would not be responsible for loss or damage to the goods beyond an amount therein specified. Through the negligence of the defendant the goods, which should have been in Chicago by December fifteenth, were not delivered until early in January, when the consignee refused to accept them. The plaintiff being unable to sell the goods in Chicago, had them shipped back to Syracuse.
    In an action to recover for the negligence of the defendant in failing to deliver the goods within a reasonable time, held (1), that, as the action was for negligence in delivering, and not for loss of or damage to the goods, the amount of the recovery was not limited by the stipulation in the receipt; (2), that, as it appeared that the goods had no market value at Chicago, the place of manufacture was properly resorted to for the purpose of determining their value. (Sedg. on Dam. [6th ed.], 334, 426, 583, and note.)
    Appeal from, a judgment in favor of the plaintiffs, entered upon the report of a referee.

      Franklin, D. Locke, for the appellant.

      Hunt & Weaver, for the respondents.
   Opinion by Gilbert, J.

Judgment affirmed.


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    JOSEPH P. SAMPSON, Respondent, v. THE BUFFALO, NEW YORK AND PHILADELPHIA RAILWAY COMPANY, Appellant.

      Mechanic's lien—Evidence of filing notice.

    A copy of a notice of mechanic’s lien, in which the signatures are not proved or acknowledged, is not, though certified by the county clerk, admissible as evidence of the due filing of the proper notice of lien.

      Whether, if the notice of lien were proved or acknowledged, a certified copy would he evidence, quera.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action was brought to enforce a mechanic’s lien for work done and materials furnished in the construction of a bridge on the appellant’s railroad. The court was of opinion that the evidence did not justify the findings of fact made by the referee, and that a certified copy of the notice of lien was improperly received in evidence.

      Franklin D. Locke, for the appellant.

      S. S. Spring, for the respondent.
   Opinion by E. D. Smith, P. J.

Present — E. D. Smith, P. J., Talcott and Gilbert, JJ.

Judgment reversed; new trial ordered; costs to abide event.


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    ALONZO FRANCE, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.

      Indian reservation—power of State to construct highway in—Railway compa/ny— duty to heap roadway in repavr—Presumption as to negligence.

    In an action to recover for injuries sustained by a horse of the plaintiff in crossing defendant’s tracks, at their intersection with a highway in the Cattaraugus Indian Reservation, held (1), that the State had power to construct a highway in such reservation;  (2), that the defendant was liable for a neglect to keep its roadway in repair; and that a presumption of negligence arises from the existence of a defect, and the fact that an injury was caused thereby,

      Appeal from a judgment of the Cattaraugus County Court, entered upon the verdict of a jury; and from an- order denying a motion for a new trial.

      John B. Ganson, for the appellant.

      Ansley & Vreeland, for the respondent.

      O’Mara v. Commissioners, 3 N. Y. Sup. Ct. Rep., 236.

       Werster v. Forty-second Street R. R. Co., 50 N. Y., 203.

   Opinion by Gilbert, J.

Judgment and order denying a new trial affirmed.


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    JOHN J. FRAZER, Respondent, v. CHRISTIAN KIMLER, Appellant.
    This action was brought to recover the value of a horse, which was killed by - being struck by the thill of a wagon, attached to the defendant’s horse, which had run away. The defendant’s horse was left standing unhitched, in a street in the city of Lockport, in charge of a boy fourteen years of age, who was not in good health. While the boy was sitting in the wagon to which the horse was attached, the horse ran away and caused the injury complained of. Evidence was given tending to show that the horse had ran away on several previous occasions to the knowledge of the defendant. Held, that it was the duty of the defendant, knowing that the horse was liable to run away, to secure him if he left him standing in the street,- or to put him in charge of a person capable of taking care of him; that the omission to do so was negligence for which the defendant was liable.
    Appeal from a judgment of the County Court of Niagara -county, entered upon a verdict in favor of the plaintiff.

      Murray & Greene, for the appellant.

      T. E. Ellsworth, for the respondent.
   Opinion by Mullin, P, J.

Judgment affirmed.


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    BETSEY COOPER, Claimant against the Estate of William Cooper, Deceased, Respondent, v. MARY TURNER, Heir of said Deceased, Appellant.

      Contract—promise to pay—when not implied.

    William Cooper was a single man, and his mother, who was a widow, resided with him on a farm after he became of age, and kept house for him. After his death, she presented a claim against his estate containing a number of items, one of which was for services rendered by her as his house-keeper. There was no agreement between them that she should be paid for such services. The surrogate allowed the item. Held, that it was improperly allowed; that under such circumstances, the law would not imply an agreement to pay wages.’
    Appeal from the decree of a surrogate.

      Wm. C. Johnson, for the appellant.

      Humphrey & Lockwood, for the respondent.
   Opinion by Mullin, P. J.

Decree reversed, and proceedings remitted to surrogate with ' directions to rehear the case, costs to abide event.


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    FREDERICK KNOTHE, Appellant, v. MARY KAISER, Respondent.

      Qum'dian — liability of.

    Where a general guardian of a minor leases year after year his ward’s property in an unusual manner, and at times of the year when there is a limited demand for it (in this case by auction in the month of January), at a rent much less than the rental value of the property, he is properly chargeable, on an accounting before the surrogate, with the difference between the value of the rent of such property and the amount of rent actually received by him. In such case, he is also properly chargeable with the contestant’s costs on the accounting.

      Appeal from a decree of the surrogate of Erie county, made upon an accounting of the appellant as general guardian of the respondent and others.

      George Wing, for the appellant.

      Charles W. Goodyear, for the respondent.
   Opinion by Mullin, P. J.

Decree affirmed, with costs to be paid by the appellant.


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    IRA LAKEY, Plaintiff, v. GEORGE LOOMIS, Defendant.
    This action was brought to recover back a part of the money paid by plaintiff on a purchase of wool, upon an alleged agreement that the wool should be reweighed, and that the defendant should refund the purchase-money in proportion to the shrinkage in it, if there should be any. The complaint alleged that the dealings in relation to the wool were had with the plaintiff, and that the money due by reason of the shrinkage belonged to the plaintiff. The defendant denied the allegations of the complaint, and alleged that the purchase and agreement were made by one Frank Lakey. At the trial the court submitted the question to the jury, whether upon the evidence the plaintiff was entitled to maintain the action. The jury rendered a verdict for the defendant. Held, “ that the court should not have submitted that question to the jury, as there was no evidence that any person other than the plaintiff was entitled to sue upon the contract. The submission of it was equivalent to an instruction that there was evidence that would authorize them to find against the plaintiff on that ground.”
    Motion for a new trial, on exceptions ordered to be heard in the first instance at General Term.

      E. G. Lapham, for the plaintiff.

      S. B. McIntyre, for the defendant.
   - Opinion by Mullin, P. J

New trial granted, costs to abide the event.


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    JOSEPH PRATT, Respondent, v. LUTHER T. NORTON, Appellant.

      Witness — impeachment of— statement signed by him—original must be produced.

    To impeach a witness, by showing that he has made some statement inconsistent with the contents of a document signed by him, the original document must be produced.

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

      Rowley & Johnston, for the appellant.
    Holmes, Thompson & Spencer, for the respondent.

       Newcomb v. Griswold, 24 N. Y., 298; Gaffney v. The People, 50 id., 416, 425.

   Opinion by Mullin, P. J.

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


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    SAMUEL WILCOX, Respondent, v. WASHINGTON PALMETER, Appellant.

      Evidence—set-off in suit in Justices’ Gowrt—no reply necessa/ry.

    In an action to recover for the use of a wagon, evidence of the value of the wagon, when received and when returned, shows wear and tear and is not incompetent on the question of the value of its use.
    In an action in a Justices’ Court, the plaintiff may give evidence in answer to a set-off of the defendant without a formal reply.
    Appeal from a judgment of the County Court, affirming a judgment entered in a Justices’ Court, and from an order denying a motion for a new trial.

      C. R. Lockwood, for the appellant.

      Morris & Russell, for the respondent.
   Opinion by Gilbert, J.

Judgment affirmed.


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    AMANDA F. MASON, Appellant, v. AUSTIN L. WELLS, Respondent.

      Nonjoinder of parties.

    The non-joinder of a person jointly liable with a defendant in an action, may be set up in an answer, and is, if established when so set up, a perfect defense to such action.

    Appeal from a judgment, entered on the report of a referee directing a dismissal of the complaint.
    The action was based upon the alleged neglect on the part of the defendant, to keep renewed and continued in life and force, certain policies of insurance upon the plaintiff’s house, which was consumed by fire. The answer stated, and the referee found, that at the times mentioned in the complaint, the defendant and one Thomas M. Knight were copartners in the insurance business, and that Knight was jointly interested with the defendant in all his insurance business.

      H. C. Kingsbury, for the appellant

      C. D. Murray., for the respondent.

       Wooster v. Chamberlin, 28 Barb., 602; Sweet v. Tuttle, 4 Kernan, 468.

   Opinion by Smith, P. J.

Present —: E. D. Smith, P. J., Gilbert and Talcott, JJ.

Judgment affirmed.


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    W. IRVING HAYES, Respondent, v. SCHUYLER C. THOMPSON, Appellant.

      Jury—verdict of—cannot be reviewed.

    “The object of the appellant in bringing this appeal, would seem to be to procure the review of the action of the jury, notwithstanding the evidence is conflicting. If any question of practice should be deemed settled in this State, it is that such a review cannot be had. It would relieve clients of expense, and the courts of very much labor, if counsel would conform to a rule so long and so uniformly acted upon by the courts.”
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury; and from an order denying a motion for a new trial.

      Charles Mason, for the appellant.

      H. W. Bentley and George W. Smith, for the respondent.
   Opinion by Mullin, P. J.

Judgment and order affirmed.


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    NATHAN T. HAILE, Respondent, v. LEVI FULLER, Appellant.
    • Blander—words must be spoJcen in presence of third person.

      “ There was evidence from which the jury might infer that the slanderous words charged, were heard only by the plaintiff; if so, there was no slander. The - court below, therefore, erred in charging the jury, that the mere speaking of the words rendered the defendant liable, and on this ground there must be a new trial granted.”
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, in an action for slander.

      F. D. Wright, for the appellant.

      Wing T. Parker, for the respondent.
   Opinion by Gilbert, J.

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


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    THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error, v. WILLIAM CLARK, Plaintiff in Error.
    Writ of error to the Court of Sessions of the county of Erie. Clark was indicted jointly with one George Taylor for burglary. The prosecution gave some evidence to connect, the prisoner with Taylor in the commission of the offense, which was submitted to the jury without objection. Evidence was also given to show that the burglarious implements found at the place of the burglary were made at Rochester for Taylor. This evidence was objected to. This court was of opinion that such evidence was pertinent to prove the guilt of the prisoner. The court refused to pass upon the question, whether the evidence as to Taylor’s connection with Clark ivas sufficient to implicate him, as it did not appear that all the evidence given on the trial was before it.

      Cook & Fitzgerald, for the plaintiff in error.

      Benj. H. Williams, district attorney, for the defendant in error.
   Opinion by Gilbert, J.

Conviction affirmed.


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    LUCIAN R. BAILEY, Appellant, v. JOHN H. BERGEN, as Executor of the last Will and Testament of MARIA F. BERGEN, Deceased, Respondent.
    This action was brought to recover the sum of $815.88, alleged to be due upon a promissory note made by W. H. Cross for $1,000, and indorsed by Maria F. Bergen, an accommodation indorser, and delivered to plaintiff in part payment for goods sold. W. H. Cross made a general assignment to flamtiff for the benefit of his creditors, preferring, among other claims, the note in question and two other notes indorsed by Maria F. Bergen, which fell due prior to the one in suit, and were paid in full by the plaintiff, as assignee, to himself as holder, and were surrendered and canceled by him. The balance of the funds held by the plaintiff, as assignee, was insufficient to meet the note sued upon, and the amount unpaid on this note was sought to be recovered in this action. The defendant in his answer claimed that the amount held by the plain tiffj as assignee, should have been paid proportionately on each of the three notes, and the referee found that the sum of $194.50 and protest fees were due plaintiff, who appealed to the General Term, where it was held that as the same parties were liable upon each of the three notes, the assignee was justified in paying them in full as they became due, so far as the funds in his hands would allow, and directed that a new trial be had, costs to abide the event.

      George Bowen, for the appellant.

      Franklin D. Locke, for the respondent.
   Opinion by E. D. Smith, P. J.

Present—E. D. Smith, P. J., Gilbert and Talcott, JJ.

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


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    HENRY FAUCETT, Respondent, v. FRED. S. NICHOLS, Appellant.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict at the Steuben County Circuit. The action was brought by the plaintiff, a guest at the defendant’s inn, to recover for certain of his property, destroyed hy fire at the inn, through defendant’s negligence, while the plaintiff was such guest. The answer set up that the fire was the work of an incendiary. The jury brought in a verdict for the plaintiff. Evidence was offered, and excluded, to show an attempt to fire another building in the village the same night, and that defendant’s property was not insured.

      The General Term found no error in the case on appeal.

      G. B. Bradley, for the appellant.

      W. B. Ruggles, for the respondent.
   Opinion by E. D. Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


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    THE FARMERS AND MECHANICS’ NATIONAL BANK OF BUFFALO, Appellant, v. PHINEAS W. SPRAGUE and WILLIAM M. FAVILL, Respondents.
    This' action was brought to recover the amount received by defendants upon a draft intrusted to them for collection, which draft was also accepted by them. The answer alleg-ed, and the jury found, that Kenrick & Co., parties to such instrument (the drawers thereof), had paid the same in full to the plaintiff. The court were of opinion that such payment was a defense to the action brought by the plaintiff.

      John C. Strong, for the appellant.

      Edward D. McCarthy, for the respondents.
   Opinion by Gilbert, J.

Judgment affirmed.


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    JULIAN CARTER, Respondent, v. ASAHEL DOLBY and others, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The only question involved in this case, was, whether the land, on which certain logs were cut, belonged to the plaintiff or the defendants. The referee decided in favor of the plaintiff and the General Term affirmed the judgment.

      Sedgwicks, Kennedy & Tracey, for the appellants.

      Francis Kernan, for the respondent.
   Opinion by Mullin, P. J.

Judgment affirmed.


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    ANDREW J. HACKLEY and another, Respondents, v. JOHN H. DRAPER and HENRY DRAPER, Executors, etc., and others, Appellants.
    The decision of the judge at Special Term was affirmed without the discussion of any legal questions. A suggestion by one of the counsel, that the case submitted on the argument was defective, was disregarded, the court holding that any error in the printed case must be corrected by proper application to the court at Special Term, before the case is brought on for argument.

      S. J. Glassey and John A. Foster, for the appellants.

      E. T. Schenck, for the respondents.
   Opinion by E. Darwin Smith, J.

Present — Smith and Gilbert, JJ.

Judgment affirmed, with costs.


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    ALONZO TOWSLEY, Respondent, v. HENRY DENNISON, Impleaded with others, Appellants.
    Many of the points presented by this appeal were considered when the case was before the court before (Towsley v. Dennison, 48 Barb., 490), and the court refused to reconsider them, and passed only upon some questions of fact not presented by the former appeal.

      William C. Ruger, for the appellants.

      Burton & Ten Eyck, for the respondent.
   Opinion by E. Darwin Smith, J.

Present — Mullin, P. J., E. D. Smith and Gilbert, JJ.

Judgment affirmed.


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    GEORGE R. MILLS, Appellant, v. ROBERT PORTER, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The only question involved in this case, was, whether or not the defendant had sold a certain note to one Wood, and thereby warranted the title thereto. The General Term held that there was no sale, but a mere assignment for the ■purpose of collection, and affirmed the judgment below.

      Cornelius E. Stephens, for the appellant.

      E. S. Merrell, for the respondent.
   Opinion by Gilbert, J.

Judgment affirmed.


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    DANIEL ROSECRANCE and another, Appellants, v. MARCUS HOLLISTER and another, Respondents.
    Appeal from a judgment in favor of the defendants, entered upon a report of a referee.
    Gilbert, J., says:
    “ The question was one of fact, and there was abundant evidence to sustain the referee’s findings.”

      Geo. Bowen, for the appellants.

      William Tyrrell, for the respondents.
   Opinion by Gilbert, J.

Judgment affirmed.


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    DANIEL H. MURPHY, Appellant, v. EDWARD C. MURPHY and another, Respondents.
    Appeal from a judgment, entered in favor of the defendant, on the report of a referee. The court was of opinion that the circumstances raised a question of fact only, which it was the exclusive province of the referee to decide.

      P. L. Ely, for the appellant.

      D. Millar, for the respondents.
   Opinion by Gilbert, J.

Judgment affirmed, with costs.