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Entered according to act of Congress, in the year eighteen hundred and sixty-seven,

BY WILLIAM GOULD & SON, In the Clerk's Office of the District Court of the Northern District of New York.

Ree July 10, 1867






PAGE. Amous agt. Homans ..

382 In the Matter of A. H. Garland..... 241 Ayres agt. The Western Railroad Co. 351 In the Matter of Livingston.....

20 In the Matter of John H. Lockwood, 437 B.

Babcock agt. Utter..
Barton agt. Butts
456 Jackson agt. Lynch

93 Batterman agt. Finn 501 Jaudon agt. Read

190 Bennett agt. Erving ... 384 Jesup agt. Jones ..

191 Berwick agt. Dusenberry. 348 Johnsoa agt. Florence..

230 Bettis agt. Goodwill..

137 Brainerd agt. Heydrick.


Bridenbecker agt. Hoard.

Kenzel agt. Kirk.

296 C.

Chapman agt. The Union Bank.... 95
Coleman agt. Bean...

Law agt. Mayor, &c., of New York. 385 370

1 Cooper agt. Schultz

Lobdell agt. Lobdell..


Madison Av. Baptist Church agt.
Dry Dock, &c., Railroad Co. agt.
The N. Y., & Harlem Railroad Co. 193

Baptist Church in Oliver Street... 335 McMahon agt. Allen.....

313 Duguid agt. Edwards.


Mettlestadt agt. Ninth Av. Railroad

428 Midgeley agt. Slocumb...

423 Ernst agt. The Hudson River Rail- Moore agt. The Board of Commisroad Company.... 61 sioners of Pilots...

184 Emst agt. The Hudson River Rail- Morange agt. Morris .

178 road Company......

262 Mutual Benefit Life Insurance Co.

agt. The Supervisors, &c., of New G. York.

35 Governors of the Alms House, N. Y.,

N. agt. The American Art Union 341 Graham agt. Chrystal .. 287 Niblo agt. Binsse..

92 Grocers' National Bank agt. Clark. . 160 N. Y. and Harlem Railroad Co. agt.

The Forty-Second Street R. R. Co. 481 E.

P. Germance agt. James

142 Lowland agt. Coffin.. 300 | Peck agt. Yorks..


Cases Reported.


PAGE, People agt. Booth.. 17 Rossiter agt. Hall

226 People agt. Cornell. 149 Russell agt. Russell. .

400 People agt. Ferris...

411 People agt. Hudson River R. R. Co. 394

People agt. Stocking ..

Saddlesvene agt. Arms

280 People agt. The Board of Education

Sebley agt. Nichols

182 of New York..

Smith agt. May...

222 Purves agt. Moltz.


Steamer Moses Taylor agt.Hammons 460



Walkenshaw agt. Perzel... Ross agt. The Mayor, &c., of New Walkenshaw agt. Perzel. York ...

164 | Williams agt. Murray..

233 310




FRANK LORDELL and others, infants by FRANCIS BICKERSTAFF, their guardian, respondents agt. AMMON LOBDELL and others, appellants.

In an action for the specific performance of an agreement to convey land, the rule is not as strict now as formerly, in reference to the proof of the exact agreement alleged in the complaint. If the allegations of the cause of action are not unproved in their entire scope and meaning; and the variance is not material and no one has been misled; and especially if no question of variance was raised at the trial, the objection taken on appeal that the agreement as set forth in the complaint is widely different from that found by the referee, will be disregarded. In an action by heirs at lar of an intestate son, claiming a specific performance of an oral agreement for the conveyance of land, against the devisees of the father, one of the defendants, a devisee, cannot be a witness on his own behalf to prove a conversation between the father and son, and in which the witness took part, respecting the agreement by the father to give the son a deed of the property, on the performance of certain conditions. And it is not material whether the witness took part in the conversation or not. The broad objection is that he proposed by his evidence of the confessions or declarations of the deceased father of the plaintiffs (the son) to defeat their title as the heirs at law, and to establish his own title, he being a defendant. If the case does not come literally within the words of the statute (Code, $ 399), " any transaction or communication had personally by such party with the deceased ” father of the plaintiffs, it is within the intention of the statute. It is a rule in equity that a specific performance of an agreement will not be decreed unless the agreement is founded upon a sufficient consideration. The plaintiff must make a meritorious case. Held

, in this case that assuming the facts as found by the referee, the case of the plaintiffs was meritorious, and they were entitled to the relief demanded : although there was much doubt whether the agreement as found by the referee was ever made. The case however was not destitute of equity. The evidence showed an intention on the part of the father to give the land to his son, when be (the father) should die ; and some of the evidence tended strongly to show that he had already given him the land.

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