and it should be regarded as part of the res-gesta in which he was engaged.

That with reference to the amount of loss plaintiffs gave the best evidence in their power in relation to the quantity of goods on hand at the time of the fire and the amount destroyed. If there was any error in allowing the use of the copy memorandum to refresh the witness memory, that was abundantly cured by the production of the original, and the repetition of the evidence, as the memory of the witness was refreshed by that document.

the time the voyage should be stopped, in consequence of ice or of the closing of navigation making a complet on of the voyage impossible, allowing three days for a discharge of the cargo. It appeared that the boat proceeded on her voyage and reached the village of D. on the evening of November 28th or 30th (the evidence was conflicting as to which date). She was leaking badly and was put on a dry dock. On the next morning the leak stopped, and about 3 or 4 o'clock, P. M., she was taken off. When she went on the dry dock there was no ice. Ice formed on the 1st or 2d of December several inches thick. It was agreed between the cap

As no substantial error was committed upon the trial, the judgment should

be affirmed.

Opinion by Davis, P. J.; Daniels, tain of the boat and defendant's agent J., concurring.

that a passage should be cut to get the boat down to a warehouse about 60 rods down the canal where she could be unloaded. A channel was cut 20 feet wide, and the boat started, but on the way

she was struck by something, what it did not appear, a hole knocked in the

bow and she sank.



Sherwood et al., exrs., &c., respts. v. The Merchants Mutual Insurance Com. pany, applt.

The judge directed a verdict for the defendant.

Decided May 30, 1876.

Also held, That under the conditions

Where a policy of marine insurance, by its terms, provides that the risk is to terminate at the place and at the time the voyage shall be stopped, in consequence of ice or the closing of navigation making a completion of the voyage impossible, and allows three days for a discharge of the car- of the policy the actual stoppage of the go, the insured has the right to make voyage was the time from which the every effort to continue the voyage, three days for discharging of cargo were after stoppage, to a proper place to discharge the cargo and lay up the to be completed, and the insured had boat for the winter, notwithstanding the right to make every effort to conit is apparent it could not be finish- tinue the voyage, notwithstanding it ed by reason of obstruction by ice. should be apparent that by reason of an action to recover on a ice it could not be finished. He had policy of insurance upon certain prop- also a right to continue the voyage noterty on a canal boat. withstanding obstructions by ice, to a proper place to discharge the cargo and

This was

Geo. B. Hibbard, for applt.
Jno. II. White, for respts.

Held, error. That the case should have been submitted to a jury.

By the terms of the policy the risk was to terminate at the place and at lay up the boat for winter.

Judgment of General Term revers-fell, and sustained the injury complaining order of Special Term denying a ed of. There was evidence tending to motion for new trial affirmed, and judgshow that the sidewalk at this point was ment absolute on stipulation for plain- unsafe and insecure for persons passing tiff. over it, if their attention was not particularly called to it, that it had been. suffered to remain in this condition for several years, and that casualties similar to that which befell plaintiff had happened on more than one occasion. Plaintiff was nonsuited on the ground

Opinion by Allen, J.



Clemence, respt., v. The City of Au- that the Common Council in the perburn, applt.

formance of a "quasi judicial" act had established the grade, and that the sidewalk had been built in accordance with that grade, and the jury could not review the "judicial action" of the Common Council, who had a discretion in the matter, and that the city could not be held liable for the mistaken exercise of that discretion.

Decided June 6, 1876.

In an action to recover damages for an
injury sustained by falling on a side-
walk, the questions whether the side
walk was in an unsafe condition, and
whether the injury was caused sole-
ly thereby, or whether negligence or
want of care on the part of plaintiff
contributed to it, should be submitted
to the jury.
Where a party has been nonsuited, he
may insist, upon appeal, not only
that the judge erred in his applica
tion of the law to the facts, but that
he erred in his conclusions of fact, or
that there were disputed questions of
fact that should have been submitted
to the jury.

N. C. Moak, for applt.
F. D. Wright, for respt.

Held, error; that the case should have been submitted to the jury to determine whether the sidewalk was in proper repair and in a safe condition, and whether the injury to plaintiff was caused solely by s ch defect, or whether This action was brought by plaintiff his own negligence and want of care against the City of Auburn to recover contributed to it. That no question damages for an injury sustained by fall-conld be made as to the liability of the ing on the sidewalk in said city. It ap-city for neglect of duty if the walk was peared that the Common Connel of in fact in an unsafe condition, and Auburn established a grade for a por- whether it was in such a condition was, tion of the sidewalk in one of the streets, upon the evidence, a proper question but where the new and old sidewalk for the jury. joined there was a difference of several Where party is nonsuited upon the inches. By direction of one of the motion of his adversary, over his obmembers of the Common Council the jection and exception, he may insist stone joining the new with the old sideupon a review of the decision, not only walk for a space of about four feet was that the judge at Circuit erred in the laid at a grade and angle much sharper application of the law to the facts, as than that on either side. Plaintiff, reviewed by him, but that he erred in when this place was covered with about his conclusions of fact, or that there

an inch of snow, slipped thereon and were disputed questions of fact which

should have been submitted to the en to the wife for safe keeping. She jury. kept the same till 1864, when 100 acres was purchased and most of the $600 was paid thereon and a conveyance of the new land was made to the husband, and the husband gave his bond and mortgage for the same.

Order of General Term, granting a new trial, affirmed, and judgment absolute for plaintiff, on stipulation. Opinion by Allen, J.


In 1867 the last mentioned land was

N. Y. SUPREME COURT. GENERAL TERM. sold, and with the proceeds the land in FOURTH DEPARTMENT.

suit was purchased and the husband took a deed in his own name and gave Ford, respt. v. Johnston, applt. back a bond and mortgage, &c., &c. Decided April, 1876. In August, 1869 the plaintiff was asTo set aside a conveyance for fraud, absaulted by the defendant Richard N. solute, positive evidence of fraud is

not necessary; the fraud may be in-(the husband), and in May, 1870, plainferred from all the facts. tiff recovered judgment against defendA conveyance made pending an action ant Richard N., for damages for the asfor tort against the grantor with in-sault, and execution was issued and retent to defeat a recovery is fraudu- turned unsatisfied.

lent and void.

The fact that premises from the proceeds of the sale of which this property in suit was brought was declared a homestead, &c., did not exempt this


About twelve days after the assault on plaintiff, defendant conveyed the premises to his son, and the son thereupon conveyed the same to the wife, Cordelia, and on the trial evidence of defendant's statements was given that he had put property out of his hands to provide against suit.

Appeal from judgment at circuit.

The defendant, R. N. Johnston and Cordelia Johnston are husband and wife. They were married prior to 1847, and in Plaintiff brings this action in the nathat year Cordelia received from her ture of a creditor's bill to set aside father about $150, with which some conveyance to Cordelia and have his land was purchased, and the land was

judgment declared a lien, &c.

under the Homestead Law declared a Homestead and recorded as such.

The husband occupied and improved this land; built thereon a house and barn, and paid up the mortgage.

In 1856, the said land was sold and conveyed for $1100, and in 1857 100 acres of land was purchased for $2,100, and the means realized from the sale of the first land was paid towards the $2, 100. The husband took a deed to this land in his own name, and gave a bond and mortgage back.

In 1863 fifty acres of the land was sold for $1,600, and the money was giv

The value of the property so conveyed to Cordelia was $3,000, and the court. below held that Cordelia was only entitled to an equitable interest in the land for her $150 and use of the same, and set aside the deed, and from that judgment this appeal is taken.

There was no consideration for the deed from Richard N. to his son or from Cordelia to the son, The action for the assault was commenced before the conveyance.

Walter L. Sessions, for respt.
Norris & Russell, for applt.

Held, That plaintiff's judgment hav- for the amount of the check on the ing been recovered after the convey- Union National Bank of Chicago. This ance by Richard N., he was bound to daaft was received on the 9th by plainshow actual fraud. The evidence to tiffs, and deposited in the Bank of Monestablish fraud need not be absolutely treal, in Chicago, for collection. The positive; the fraud may be inferred draft was presented to the Union Nationfrom the facts in the case. al Bank for payment on the morning of the 10th, and not paid, whereupon

The conveyance having been made pending an action for a tort and with plaintiffs notified the Bank of New Lis

evidence of an intent that it was done to defeat a recovery is fraudulent and void.

The plaintiff's recovery is not affect ed by the fact that the proceeds of the property declared a homestead was put into property in suit. The husband's money and labor was after this spent on this property. Judgment affirmed. Opinion by Noxon, J.


Farwell et al., v. Curtis.

The holder of a bank check must pre-
sent and collect it the same day, or he
is chargeable with laches.
He canot extend the time for which

the drawer is liable.

This was an action to recover the price of goods sold to defendant in 1875.

bon that the check would go to protest if not paid by Monday, the 12th. Not being paid at that time it was duly protested.

The Bank of New Lisbon could have paid the check in money at any time up to the 10th, but at the close of business on that day it stopped payment. At the time of sending the draft it had no money at the Union National Bank, nor authority to draw it without funds.

Held, That in these days, when such facilities are furnished by the express companies for presentation at distant places, there is no reason for adopting a less direct or effective mode to accomplish the object; that if the plaintiffs had sent the check by express on the last train on the 6th, they would have received the money on the 8th, and that, under these circumstances, to send by mail to the drawees, with instructions to collect and return, is hardly equivalent to a demand at the counter for payment; and that as plaintiffs adopted another course than the one which the exercise of ordinary care and

diligence would have dictated, they should stand the loss which has resulted

from it.

Defence, payment.

On the 5th day of April, 1875, defendant, a resident of New Lisbon, purchased goods of plaintiffs, in Chicago, and gave a check for $800, on the Bank of New Lisbon, in payment. Plaintiff's on the same day sent the check by mail to the Bank of New Lisbon for collection. Said bank received the check on the morning of the 7th, paid the check out of defendant's funds on deposit, the parties all reside in the same place, and sent a draft, by mail, to plaintiffs the check must be presented for pay

Also held, That plaintiffs were guilty of laches in not presenting the draft for payment before the 10th. The rule of commercial law is that in cases where

ment before the close of business on the day following its date or delivery to the payee; and in cases where it is drawn upon a bank at another place, it must be sent, by the farthest, by the last mail on the next day after its receipt, and be presented by the party re- This was a proceeding in involuntary ceiving it on the day following its re-bankruptcy to punish one Dingee for ceipt by him. 20 Wend. 192; Story contempt of court in violating an inon Promissory Notes, 493.

tempt of court in selling the property of the bankrupt under a decree of the State Court for the foreclosure of the mortgage, which was entered before the adjudication of bankruptcy, nor in entering a judgment for deficiency on such sale.


It was claimed that plaintiffs had time to present the draft, to see whether it would be paid, and that if not paid, they could then protest the check.

The creditors' petition was filed on the 5th of February, 1876, and an order to show cause issued returnable the

12th of February. At the same time

an order was made under section 5024

Held, That this is not the law. The holder of a check cannot in that way of the Revised Statutes that an injunc extend the time for which the drawer tion issue to restrain the debtors and

would be liable. The drawer had a

right to have his check paid on the day til the hearing and decision of said one Dingee "in the meantime, and unpresented, and it was the duty of the tition, and until the further order of peholder to see that it was so paid, or, if this court, from levying upon or maknot, protested; and if the holder had ing any transfer or disposition of the accepted it in lieu of money, he must property of the debtors, not exempted present and collect it the same day, or be chargable with laches. He cannot, tion thereof, and from all interference by the bankruptcy act from the operaas in this case, keep it for three days, therewith, except to and look to the drawer for payment, as by so doing he would extend the draw-same," and on the same day an injune

preserve the

er's liability beyond the time fixed by
law. 7 M. & G. 1061; 43 N. Y. 171.
Judgment for defendant.
Opinion by Hopkins, J.

tion to that effect was issued. The order to show cause not having been served, a new one was issued returnable the 19th of February. The injunetion was served on Dingee on the 14th of February. On the 19th an adjudiBANKRUPTCY. CONTEMPT OF cation was made and an assignee ap


In the matter of Mary Irving and
Benjamin Irving, bankrupts.

Decided June 21, 1876.

Dingee, prior to the service of the injunction, had commenced foreclosing two mortgages held by him on property owned by Mary Irving, one of the bankrupts, in the Supreme Court of the State of New York.

The filing of a petition in involuntary bankruptcy will not divest a State Court of jurisdiction over an action

On the 12th of February a decree of

pending in such court for the fore-foreclosure and sale was entered in the

closure of a mortgage on property belonging to the bankrupt. The mortgagor is not guilty of con

action of forec'osure, and on or about the 8th of March, subsequent to the

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