Chapman & Martin for the appellant.

McDowell & Edwards for the Respondent.

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

LUTHER PAGE, Appellant, v. FRANCIS CLOUGH, Respondent.

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

McDowell & Edwards for the appellant.

Chapman & Martin for the respondent.

Agree to affirm. No opinion. PECKHAM, J., not voting. Judgment affirmed, with costs.

HENRY S. BURGER et al., Respondents, v. CHARLEs Devlin, Appellant.

(Argued April 11, 1872; decided April 23, 1872.)

D. C. Colvin for the appellant.

H. Sheldon for the respondents.

DECIDED upon the facts in the case.

ALLEN, J., reads for affirmance.

All concur.

Judgment affirmed.

CHARLES RITTERHOUSE et al., Appellants, v. FRANK BENIN

GER et al., impl'd, etc., Respondents.

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

DECIDED upon the facts in the case.

A. G. Rice for the appellants.

Simeon E. Church for the respondents.

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

JAMES E. CONOR, Appellant, v. JOHN DEMPSEY, Respondent. (Argued April 18, 1872; decided April 23, 1872.)

PLAINTIFF agreed to manufacture and deliver to defendant two engravers' stamping presses, and to warrant that they would do defendant's work without breaking. The presses were manufactured and delivered under the contract, and were accepted and paid for by defendant. Subsequently they were broken while being used in defendant's business.

In an action to recover the purchase-price of other presses, defendant set up the breach of warranty as a counter-claim. Held, that the acceptance and retention of the presses by defendant did not bar him of the right to the counter-claim, and defendant was entitled to his damages, to wit, the difference in value between presses that would do defendant's work and these broken ones.

D. C. Calvin for the appellant.

Samuel A. Noyes for the respondent.

GROVER, J., reads opinion for affirmance. FOLGER, ALLEN and RAPALLO, JJ., concur; CHURCH, Ch. J., and PECKHAM, J., dissent.

(There was a question in the case as to the rejection of evidence. The court held the rejection error, but the majority held that the plaintiff could not have been injured thereby. The dissent was to this view.)

SICKELS-VOL. IV. 84

SPENCER S. PEAK, Respondent, v. FRANCIS LEMON et al., Appellants.

(Argued April 19, 1872; decided April 23, 1872.)

Amasa J. Parker for the appellants.

A. Storrs for the respondent.

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

CHARLES W. TERRETT, Respondent, v. THE NEW YORK AND BROOKLYN STEAM SAW-MILL AND LUMBER COMPANY, Appellant.

(Submitted April 19, 1872; decided April 23, 1872.)

THIS is an action of ejectment. Both parties claimed under a common source of title. Defendant's deed was the prior one, and bounded the land conveyed on one side "by the southeasterly line or side" of what was formerly known as First avenue, in the city of Brooklyn. This avenue had never been opened as a public highway, and had been discontinued by act of the legislature. The conveyance contained this clause, also, "together with all the right and title of the grantor in and to one-half of the streets and avenues by which said lots are bounded." There was no other avenue referred to in the description of the granted premises, and the grantor had title thereto. Held, that defendant's deed carried the title to the center of the avenue.

Edgar M. Cullen for the appellant.

Rufus L. Scott for the respondent.

ALLEN, J., reads opinion for reversal and new trial. All

concur.

Judgment reversed and new trial ordered, costs to abide

event.

APOLLOS R. WETMORE et al., Appellants, v. JULIUS CANDEE et al., Respondents.

(Argued April 24, 1872; decided April 30, 1872.)

ACTION in the nature of a creditor's bill by plaintiffs as judgment creditors of the firm of Stafford & Candee, composed of Julius O. Candee and John W. Stafford, two of the defendants. The firm had assigned to defendant, Julius Candee, a quantity of notes and accounts as collateral security for a claim against them. The latter placed them in the hands of Julius O. for collection. A portion of the accounts were sold at auction and bid in by defendant, William B. Candee, nominally, but merely for the purpose of compromising. William obtained judgments in his name upon some of the accounts. A sufficient sum having been realized to pay the claim of Julius, he and William united in a transfer back to the firm of the balance of the "notes and accounts," and neither claimed any interest in the property thereafter. Held, the complaint was properly dismissed, as to Julius Candee, but that as the transfer back did not specify the judg ments which were prima facie the property of William, the latter was a proper party in order to determine his rights

thereto.

T. C. Campbell for the appellants.

H. Sheldon for the respondents.

GROVER, J., reads opinion for affirmance as to Julius. Candee, and reversal and new trial as to William B. Candee. All concur.

Judgment accordingly.

DANIEL MORGAN, Respondent, v. SARAH E. M. HANNAS.

A guardian will not be allowed an extra compensation for services, although not strictly within the line of his duties; as where the guardian is an attorney and counselor-at-law, he cannot charge for professional services rendered in the affairs of his ward, but is restricted to the statu

49b667 155 388

tory allowance. Neither an order of a surrogate, before the services are rendered, directing the performance thereof, and fixing the extra compensation, nor an order ratifying and allowing it, will legalize the charge. Where annual rests in the accounts of an executor or other trustee are required by the special direction of a court, in order to charge the trustee with interest, or where required by a rule of court or by provision of statute, full commissions may be computed upon the amount, excluding re-investments of principal. If a guardian has made and filed his accounts annually, as required by statute (chap. 460, § 57, Laws of 1837), he may be allowed commissions in full upon each account.

(Argued April 25, 1872; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, affirming surrogate's decree settling respondent's accounts as guardian. The questions presented and the holdings appear above.

M. H. Throop for the appellant.

Francis Kernan for the respondent.

FOLGER, J., reads opinion for reversal of judgment of Supreme Court and decree of surrogate, and that proceedings be remitted.

All concur, except RAPALLO, J., not voting.
Judgment accordingly.

THE MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Respondent, v. JAMES CARPENTER, Appellant.

(Argued April 24, 1872; decided April 30, 1872.)

ACTION to recover moneys received by defendant as plaintiff's agent. Defendant was employed as agent for plaintiff in the city of New York, under a contract, by which he was to receive a certain sum in full for services. The company provided an office, and the contract contained this clause: "Rent of desk-room equivalent of clerk hire." Defendant employed a clerk, who abstracted $939.13. Defendant took a note from him, upon which small amounts were paid.