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THE PEOPLE ex rel. John G. OSTROM et al., Respondents, v.

HERRICK THORN et al., Appellants.

(Argued April 2, 1872; decided April 9, 1872.)

H. M. Taylor for the appellants.

Charles Wheaton for the respondents.

Agree to dismiss appeal. No opinion.

JAMES SELDEN, Appellant, v. Joseph BAYLEY, Respondent.

(Argued April 3, 1872 ; decided April 9, 1872.)

M. S. Thompson for the appellant.
D. C. Calvin for the respondent.

Agree to affirm. No opinion.

HENRY FULLERTON, Respondent, v. PATRICK DALTON,

Appellant.

(Argued April 5, 1872; decided April 9, 1872.)

M. I. Townsend for the appellant.

G. H. Lee for the respondent.

Agree to affirm. No opinion.

STEPHEN A. WALKER, Respondent, v. THE AMERICAN

NATIONAL BANK, Appellant.

If attorneys transact business as brokers, they are entitled to compensa

tion as such, but cannot charge a counsel fee for conversations with their employers about the business, unless by express contract.

(Argued April 4, 1872; decided April 9, 1872.)

This was an action upon an account for legal services assigned to plaintiff by Strong & Shepard, attorneys. A portion of the account was for services of plaintiff's assignors in negotiating the sale of certain mortgages belonging to the defendant under an agreement that defendant should allow as compensation all received over forty per cent of amount of mortgages. Failing to effect a sale, the bank employed the assignors to negotiate a loan upon the security of the mortgages, with the promise that if the assignors succeeded they were to be compensated for their services in attempting to sell. The assignors succeeded in negotiating a loan, but defendant refused to consummate the transaction. There was also a charge in the bill of $3,000 for counsel fees in divers consultations in reference to the sale and the loan. The whole account was allowed by the referee.

Held, that the employment of Strong & Shepard in negotiating the sale and loan was as brokers, and the referee was not authorized to find an employinent as counsel; that the assignors were not entitled to compensation both as brokers for doing the business and as counsel for conversations had in reference to it.

Moody B. Smith for the appellant.
T. R. Strong for the respondent.
GROVER, J., reads for reversal and new trial. All concur.

Judgment reversed and new trial ordered, costs to abide event

John B. AYERS, Respondent, v. THE WESTERN RAILROAD

CORPORATION, Appellant.

Costs on appeal in an action at law are in the discretion of the court only

when the judgment is reversed in part and affirmed in part, or where a new trial is granted. The addition to a judgment in this court of the words “ with costs,” or “without costs,” cannot affect the right of the prevailing party in such action.

(Argued April 9, 1872; decided April 16, 1872.)

Motion to correct rernittitur by adding the words “with costs." The court decide as above, but add: As we think that it (appellant) has the right to costs, we grant the motion.”

John II. Reynolds for the appellant.
Geo. Bliss, Jr., for the respondent.
Motion granted. Per Curiam opinion.
All concur.

49

661 110 211

Howard NewLin et al., Assignees, etc., Appellants, v. DARICS

Lyon, Sheriff, etc., Respondent.

49 661 127 634

After it is shown to the satisfaction of the court or referee that an assign

ment was entered into by the assignor and assignee, with a common purpose of defrauding the creditors of the former, his acts and declarations after the assignment are competent evidence against the parties thereto, not to show the formation of the common purpose, but to prove

its execution, extent and effect. When the assignor continues in possession of the assigned property, his

acts and declarations while in actual possession may be given in evi

dence as part of the res gestce. A party excepting to the conclusions of law of a court or a referee is not

held to the same strict rule as in excepting to a charge. Where a charge is good in part and ill in part, the exception must point out the very part which is ill, so that the court, having its attention specifically called to it, may have an opportunity to correct the error; but exceptions to conclusions of law come after the power to rectify has passed from the court or referee, and the reason for the strict rule in the former case fails.

(Argued April 10, 1872 ; decided April 16, 1872.)

This is an action of replevin brought by plaintiffs as assignees of Hosea Ball to recover a quantity of stock and farming utensils. The defendant justified as sheriff of Westchester county, by virtue of certain judgments and executions against the assignor, claiming that the assignment was fraudulent and void as against creditors. Upon the trial the referee allowed proof of the acts and declarations of the assignor after the assignment, but while he remained in possession of the property, to which plaintiff excepted. The referee found the

fraud as set up in the answer. His second conclusion of law was:

“2d. The defendant is entitled to judgment for the return of the property taken from him by the plaintiffs in this action, or the value thereof, which is assessed at $10,000, in case a return thereof cannot be had and damages for taking and witlrholding the same, besides his costs in this action."

Plaintiffs excepted generally “ to the second conclusion of law.”

The amount of the various executions in defendant's hands, with interest, was $2,020.13. The judgment was for the full value of the property, in case return could not be had.

Samuel A. Noyes and Samuel Hand for the appellants. N. C. Moak for the respondent.

FOLGER, J., reads opinion for reversal and new trial, unless defendant stipulates to reduce the recovery to $2,020.13, with interest from August 1, 1869, and if so reduced, judgment affirmed, with costs to the respondent. ALLEN, GROVER, PECKHAM and RAPALLO, JJ., concur.

Judgment accordingly.

CORMICK MoNulty, Appellant, v. Dora E. Brown, impleaded,

etc., Respondent. (Argued April 1, 1872; decided April 23, 1872.) Samuel Hand for the appellant. John A. Foley for the respondent. Agree to affirm. No opinion. PECKHAM, J., dissenting. Judgment affirmed, with costs.

WILLIAM Z. Brown, Respondent, v. The Town of CANTON,

Appellant.

(Submitted April 16, 1872; decided April 23, 1872.)

PLAINTIFF, a minor, enlisted, and was credited upon the quota of the town of Canton, St. Lawrence county. The town had voted to pay $300 bounty to those who should thus enlist. It was agreed, between the plaintiff, his father and the supervisor of the town, that the father should receive the bounty, and the bonds of the town for the amount of the bounty, made payable to plaintiff or order, were issued and delivered to the father. Upon the maturity of the bonds they were paid to the assignee of the father. They were not indorsed by the plaintiff, who brings this action to recover the amount thereof of the town. Held, that the plaintiff had no interest in or title to the bonds; that his father was the equitable owner, and that defendant was not liable to plaintiff thereon.

W. C. Cooke for the appellant.

Foote & James for the respondent.

GROVER, J., reads for reversal and new trial. All concur.

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

EDWARD SMITH, Respondent, v. HENRY SMITH et al.,

Appellants.

(Argued April 17, 1872; decided April 23, 1872.)

Wm. H. Dan Cott for the appellant.

John L. Hill for the respondent.

Agree to affirm. No opinion.
Judgment affirmed, with costs.

Asa Beach, Appellant, v. NATHAN HARRINGTON, Respondent.

(Submitted April 17, 1872; decided April 23, 1872.)

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