A case stated that the trial court di- rected a verdict for plaintiff and reserved the cause for further consideration; that plaintiff's coun- sel moved at Special Term for judgment on the verdict, and de- fendant's counsel moved for judg- ment in his favor on the evidence, which last motion was granted. In the minutes and opinion it was stated that the verdict was ordered subject to the opinion of the court. There were exceptions to evidence, and a material fact was not found or admitted. Held, that the case
was not one for a verdict subject to the opinion of the court, and a verdict so taken is subject to the opinion of General Term; that as no exception was taken to the man- ner of disposing of the case, it was to be inferred that the parties intended that the court should de-
termine the whole issue, and that the proceedings might be regarded as a motion for a new trial on the
minutes, the parties consenting that judgment should be ordered abso- lutely, and a new trial waived. Sayles v. Sims.
Suprs. Chenango Co. v. Birdsall (4 Wend., 453) distinguished. Peo- ple ex rel. Lawrence v. Suprs. West. Co.
Olcott v. Maclean (10 Hun, 277) re-
versed. Olcott v. Maclean. 223 Jennings v. Conboy (10 Hun, 77) re-
versed. Jennings v. Conboy. 230 Moore v. Mayor, etc. (4 Hun, 545) re-
versed. Moore v. Mayor, etc. 238 In re Douglass (46 N. Y., 42) distin- guished. Moore v. Mayor, etc. 249 In re Astor (50 N. Y., 363) distin- guished. Moore v. Mayor, etc. 249 Van Brunt v. Applegate (44 N. Y., 544) distinguished. Staats v. Bris- tow.
Beers v. Shannon (12 Hun, 161) re-
versed. Beers v. Shannon. 292
Thomas v. Allen (1 Hill, 145) distin-
guished. Beers v. Shannon. 302 Lyon v. Clark (8 N. Y., 148) distin-
guished. Beers v. Shannon. 303 Brainard v. Jones (18 N. Y., 35) dis- tinguished. Beers v. Shannon. 303 Thayer v. Manley (8 Hun, 551) modi- fied. Thayer v. Manley. 305 Hill v. Syr., B. and N. Y. R. R. Co. (8 Hun, 296) reversed. Hill v.
Syr., B. and N. Y. R. R. Co. 351 Bostwick v. Balt. and O. R. R. Co. (45 N. Y., 712) distinguished. Hill v. Syr., B. and N. Y. K. R.
distinguished. Sherwood v. Ag. Ins. Co. 451 Burbank v. Rock. Mut. F. Ins. Co. (24 N. H., 550) distinguished. Sherwood v. Ag. Ins. Co. Fisher v. N. Y. C. and H R. R.R. Co. (46 N. Y., 644), distinguished. Grover v. Morris. Suydam v. Smith (52 N. Y., 388) di3- tinguished. Grover v. Morris. 479 Underwood v. F. J. S. Ins. Co (57 N. Y., 500) distinguished and lim- ited. Goodwin v. Mass. Mut. L. 494 Ins. Co. King v. Lisle (Andrews, 163) distin- guished. People ex rel. Gilchrist 538 v. Murray. King v. Hebden (Andrews, 389) dis- tinguished. People ex rel. Gilchrist 539 v. Murray. King v. Grimes (5 Burrows, 2599) distinguished. People ex rel. Gil- christ v. Murray. 539 King v. Mayor, etc. (5 D. & E., 66) distinguished. People ex rel. Gil- christ v. Murray.
2. Defendant employed plaintiff to manufacture for him a set of circus tents, within a specified time, ma- terial to be furnished by plaintiff. No place of delivery or price was specified. Plaintiff performed, and thereafter was requested, by letter, to ship the tents to defendant at L. Plaintiff shipped them C. O. D., and they were destroyed by fire en route. In an action to recover their value, held, that defendant was liable; that the contract, being for labor and materials, was not within the statute of fraud; that defendant's liability did not depend upon the question as to where the technical title was, but was com- plete when the request to ship was made; that plaintiff had a lien upon the tents for the value of his labor and materials, and his re- taining the lien, by shipping them C. O. D. was not inconsistent with, and did not affect, his right to en- force such liability. Higgins v. 252 Murray.
Roch. and G. Val. R. R. Co. v. Clarke Nat. Bk. (60 Barb. 234) distinguished. People ex rel. Gil- christ v. Murray. 540 People ex rel. Steinert v. Anthony (6 Hun, 142) distinguished. People 3. ex rel. Gilchrist v. Murray. Hayden v.Coleman (10 J. & S., 256) re-
versed. Hayden v. Coleman. 567 Murdock v. P. P. and C. I. R. R. Co. (10 Hun, 598) reversed. Murdock v. P. P. and C. I. R. R. Co. 579 People ex rel. Thompson v. Suprs. Ham. Co. (9 Hun, 60) reversed. People ex rel. Thompson v. Suprs. Ham. Co. 604 Bartlett v. Drew (57 N. Y., 587) dis- tinguished. Griffith v. Mangam. 611 Risley v. Brown (67 N. Y., 160) dis- tinguished. Hunt v. Church. 615
Plaintiff indorsed a promissory note for the accommodation of the makers for a special purpose; instead of being used for such pur- pose it was transferred by the makers to defendants in payment of an antecedent debt. Defendants transferred the same before ma- turity to a bona fide holder for value, who collected it of plaintiff. In an action to recover the amount paid, held, that defendants were liable; that having no title or right to the note the transfer by them was a conversion; and that it was imma- terial that they acted in good faith and in ignorance of plaintiff's 269 rights. Comstock v. Heir.
4. The makers of the note so indorsed executed to plaintiff a bond and mortgage securing this and other indorsements; they were adjudged bankrupts, and an assignee in bankruptcy appointed. Plaintiff entered into an agreement with the assignee, by which it was agreed that plaintiff should take
the mortgaged property and should take care of certain paper so indorsed, including the note in question, so that the general estate of the bankrupt should not be charged therewith, with the pro- viso, however, that nothing con- tained in the agreement should affect in any manner plaintiff's right to defend against the note, or his remedies against any person in respect thereto. Held, that the agreement did not release, extin- guish or affect the plaintiff's right of action against defendants. Id.
5. If a loss under a policy of fire insurance is occasioned by the wrongful act of a third person, the insurer, upon payment, is subro- gated to the rights and remedies of the assured, and may maintain an action against the wrong-doer. Conn. F. Ins. Co. v. Erie R. Co.
does not appear to have had seals, is not necessarily fatal to its valid- ity. The holding of the meeting, the election of trustees, and the execution of the certificate in ac- cordance with the statute, are the substantial requirements to create the corporation. An error in re- cording the certificate or the acci- dental loss of one or more of the seals after they were legally and properly affixed, will not invali- date the organization. Trustees, etc., v. Bly. 323
The return to a writ of certiorari must be taken as conclusive and acted upon as true; if false in fact, the remedy is by action for a false return; if insufficient in form, by compelling a further and more spe- cific return. People ex rel. v. Fire Com'rs. 436
possession of land is not adverse
so as to render a deed thereof void for champerty under the statute (1 R. S., 739, § 147), unless it be under claim of a specific title. In re Dept. Pub. Parks. 560
CHATTEL MORTGAGE. chattel mortgage valid in other respects is not invalid, as against one purchasing of the mortgagor with knowledge of its existence, although not filed or renewed. Gildersleeve v. Landon. 609
1. The office of assistant clerk of a district court is not a city or county office, within the meaning of the provision of the charter of New York city of 1873 (§ 114, ch. 335, Laws of 1873), providing that every person holding such an office, who shall accept any other office speci- fied, shall be deemed to have va- cated the former. People ex rel. v. Murray. 535
2. Accordingly held, that defendant did not lose his office as assistant clerk by being elected member of assembly, and by entering upon the duties of that office after his
removal, or by accepting clerical | 5. The officer is primarily bound by
1. The rule that resort may be had to a court of equity to set aside as a cloud on title an apparent lien or incumbrance, when its invalidity can only be established by extrin- sic evidence which will not neces- sarily appear in any proceeding by a claimant to enforce the licn, is more particularly applicable where the extrinsic evidence is parol; it does not apply when the evidence is a deed, on record in the same county clerk's office where a judgment is docketed under which a claim is made hos- tile to plaintiff's title. Schroeder v. Gurney. 430
1. Plaintiff bought a ticket of the G. T. R. Co., at Montreal, from that city by railroad to Troy or Albany, thence by steamboat on the Hud- son river to New York. His bag- gage was checked to go by the same route, but the railroad agent at Troy delivered it to de- fendant, who received and trans- ported it over its road to New York. It was placed in its bag- gage-room. Three days thereaf- ter, and as soon as plaintiff had reason to believe that his baggage
had been carried by defendant, he demanded it; a portmanteau could not be found. In an action to recover for the loss, held, that the delivery of the baggage to de- fendant was the wrongful act of the railroad agent at Troy, who was not plaintiff's agent in any sense that would enable him to bind plaintiff by his acts; that de- fendant at least incurred the lia- bility of a warehouseman, and was bound to exercise ordinary care, to account for the baggage in some way when demand was made, and to show that it had dis- appeared without its fault. Fair- fax v. N. Y. C. and H. R. R. R. Co. 167
2. In the portmanteau were thirty- nine English sovereigns. The court charged the jury, if they found for plaintiff, that they should allow the value of the sovereigns, if they found they were a proper and reasonable amount for plaintiff to carry with him for his journey; and that, in deciding this question, they should take into consideration his cir- cumstances, the length and char- acter of his journey, and the fact that he was in a foreign country. To which charge defendant's coun- sel duly excepted. Held, that the charge was at least as favorable to defendant as the law required; that defendant, having taken the portmanteau without plaintiff's knowledge or assent, was bound to care for it and its contents, no matter what they were. Id.
3. In the portmanteau were articles of clothing made for plaintiff and partly worn. The court charged that plaintiff was entitled to re- cover the full value, for use to him, of the clothing, and not mere- ly what it could be sold for in money. Held, no error. Id.
4. As to whether the defendant was
liable absolutely for the baggage, upon the theory that its interfer- ence therewith was wholly un- authorized and wrongful, quare. Id.
5. Where a traveler, on delivery of baggage to a local express com-
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