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.

551

Suprs. Chenango Co. v. Birdsall (4
Wend., 453) distinguished. Peo-
ple ex rel. Lawrence v. Suprs.
West. Co.

178

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.

263

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.

451

479

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.

539

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.

540

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.

399

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

CERTIORARI.

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

CHAMPERTY.

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

CLERK.

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

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-