FOURTH DEPARTMENT, JANUARY TERM, 1875.

JAMES A. TICE, RESPONDENT, v. JAMES A. TICE, JR., AND WIFE, APPELLANTS.

THE action was brought to establish a lien on a farm of land, formerly owned by the plaintiff, in the town of Newfane, for a portion of the purchase-price thereof, which the grantee, Louisa Jones, agreed to pay therefor.

The questions presented by the appeal were purely questions of fact, and were disposed of by the Special Term upon conflicting evidence. The General Term, after reviewing the testimony, was of opinion that the decision below was clearly against the weight of evidence. The plaintiff's case rested almost entirely upon his own evidence, which the court thought was so far impeached as to seriously impair, if not altogether to destroy it. The judgment of the Special Term was therefore reversed.

George C. Greene, for the appellants.

B. J. Hunting, for the respondent.

Opinion by MULLIN, P. J.

Judgment reversed, new trial granted, costs to abide the event.

ANNE MALONE, ADMINISTRATRIX, ETC., RESPONDENT, v. HENRY B. HATHAWAY, APPELLANT.

THIS case had been before this court upon a previous appeal, in which an opinion had been written by TALCOTT, J. On this appeal the court was of opinion that the court below had given. effect to the views expressed by this court upon such former appeal, and affirmed the judgment.

H. R. Selden and J. C. Cochrane, for the appellant.

FOURTH DEPARTMENT, JANUARY TERM, 1875.

Opinions by MULLIN, P. J., and SMITH, J.

Present

MULLIN, P. J., SMITH and TALCOTT, JJ.

SMITH, J., dissented.

WILLIAM H. NEWMAN, PLAINTIFF, v. LE GRAND MARVIN AND GEORGE L. MARVIN, DEFENDANTS.

MOTION by defendants for a new trial, on a case and exceptions at General Term, under section 268 of the Code. The action was brought to compel the defendants to convey to the plaintiff a certain lot of land in Buffalo, and to account for the rents and profits. Judge GILBERT in his opinion, says: "No plainer case than this was ever presented in a court of equity. The facts found by the learned justice at Special Term, are fully warranted by the evidence; and they show not only that the property in dispute was purchased in violation of the rule that a trustee shall not deal with the trust estate for his own benefit, but in pursuance of a conspiracy between both defendants to deprive the plaintiff of the benefit of such purchase."

John C. Strong, for the plaintiff.

E. C. Sprague, for the defendants.

Opinion by GILBERT, J.

Motion for a new trial denied with costs.

JEROME P. BIGNALL, APPELLANT, V. ARNOLD M. HARRIS AND ERWIN L. HARRIS, RESPONDENTS.

APPEAL from a judgment for defendant, entered on the report of a referee.

The action was brought upon two promissory notes, and the defense was interposed, that the notes were given upon a settlement

FOURTH DEPARTMENT, JANUARY TERM, 1875.

between the parties for services rendered by the plaintiff, and by mistake were given for $400 too much. The referee found for the defendant. The court, after a review of the evidence, was of opinion that the evidence did not justify the finding, and reversed the judgment.

D. O'Brien, for the appellant.

Winn & Porter, for the respondents.

Opinion by SMITH, J.

Present

MULLIN, P. J., SMITH and GILBERT, JJ.

Judgment reversed, the order of reference vacated, and a new trial granted; costs to abide event.

FRANK L. STOWELL, RESPONDENT, V. GEORGE F. HAZELETT AND GEORGE S. MCINTOSH, IMPLEADED, ETC., APPELLANTS.

APPEAL from a judgment, entered on the report of a referee, in favor of the plaintiff. The action was brought by the plaintiff, as assignee of a judgment creditor of defendant Hazelett, after return of an execution unsatisfied, to set aside a mortgage executed by the latter to defendant McIntosh, as fraudulent as against creditors. After reviewing the evidence, the court was of opinion that the consideration of the mortgage was shown to be worthless, and affirmed the judgment.

G. T. Spencer, for the appellants.

D. H. Bolles, for the respondent.

Opinion by MULLIN, P. J

Judgment affirmed, with costs.

FOURTH DEPARTMENT, JANUARY TERM, 1875.

CALISTA E. JONES, RESPONDENT, v. PETER D. CARROLL, APPELLANT.

APPEAL from a judgment entered at the Yates County Circuit, in an action for trespass. The judge directed a verdict for the plaintiff, and for nominal damages. The General Term, after a review of the evidence, affirmed the judgment.

D. B. Prosser, for the appellant.

Ch. G. Judd, for the respondent.

Opinion by E. D. SMITH, J.

Present MULLIN, P. J., SMITH and TALCOTT, JJ.

Judgment affirmed.

GEORGE O. TOWNSEND, APPELLANT, v. ROBERT BISSELL, RESPONDENT.

APPEAL from a judgment in favor of the defendant. The action was in trespass for pulling down a wall constructed by plaintiff shortly before. The court was of opinion that the locus in quo was a lane, running between the premises of the respective parties, and had been used as such for more than fifty years, and that the plaintiff had no such possession as justified his bringing the action.

A. B. Moore, for the appellant.

D. O'Brien, for the respondent.

Opinion by GILBERT, J.

FOURTH DEPARTMENT, JANUARY TERM, 1875.

WILLIAM JAMISON, RESPONDENT, V. PETER CORNELL, APPELLANT.

APPEAL from a judgment entered at the circuit. The court, after a review of the evidence, concluded that the cause was properly disposed of at the circuit, and affirmed the judgment.

George B. Bradley, for the appellant.

William Rumsey, for the respondent.

Opinion by SMITH, J.

Present MULLIN, P. J., SMITH and TALCOTT, JJ.

Judgment affirmed.

ASABEL WATSON, APPELLANT, v. JOHN SMITH, RESFONDENT.

Ar a former term of this court, an appeal from an order made at Special Term, setting aside a judgment recovered by the plaintiff against the defendant, on the ground that the court had not obtained jurisdiction to enter the same, was reversed, thus holding that the court had obtained jurisdiction of the parties and the subject-matter, and that the judgment was regular.

The order of the General Term has not been reversed, but remains in full force and effect. Since the reversal of the order of the Special Term, an execution has been issued, and a quantity of wheat belonging to the defendant levied on; and that wheat has been sold by the sheriff, and this action is brought for the conversion thereof.

The defendant's counsel objected on the trial to the judgment, on the same grounds urged on the argument of the appeal from the order; the court, however, followed the decision of the General Term, and held the judgment and the sale in pursuance