Volume 1 — Abbott's New Cases

<p>Joseph Donohue, and Henry and Alfred T. Ellis, boys, of the respective ages of fourteen, nine and eight years, were brought before thd Recorder of Poughkeepsie, on a charge made by the New York Society for the Prevention of Cruelty to Children, of being employed as gymnasts and ’acrobats. At the same time, their master, Alfred Smith, and John H. Murray, the proprietor of Murray’s Circus, were arrested, charged with exhibiting, using and employing these boys as gymnasts and acrobats.</p> <p>Upon their examination before the recorder, the facts charged against Smith and Murray were proved, and they tendered recognizances for their appearance at the court of oyer and terminer.</p> <p>Upon such examination, the recorder found that the boys were engaged in the business of gymnasts and acrobats, and thereupon committed them to the society aforesaid.</p> <p>Smith obtained a writ of habeas corpus to recover these children. The case was referred to Wm. Sinclair, Esq., to take testimony. It was proved, under the objection of the counsel for the society, that the boys had been apprenticed to Smith by their parents, who resided in England, to learn the trade of gymnasts and acrobats, and formal indentures were produced. No acts of cruelty on the part of Smith were proved; on the contrary, the evidence tended to show that he treated the children kindly, as if they were his own. The oldest, boy testified to being well treated, and expressed a strong wish to return to his master and his trade.</p> <p>The proceedings before the recorder, consisting of a certified copy of his minutes, constituting his judgment j and the warrant of commitment, which recited the act relating to the Common Council of the city of New York, passed January 28, 1833, and the act to prevent and punish wrongs to children, passed April 14, 1876, were put in evidence.</p> <p>Section 1 of the act of 1876, forbids the use, exhibition or employment of children under sixteen, in street singing, and certain other, services, and makes such use, &c., a misdemeanor. Section 2, makes it a misdemeanor to hire, &c., or have in custody a child for such purposes.</p> <p>Section 8, is as follows : “ When, upon examination before any court or magistrate, it shall appear that any child, within the age previously mentioned in this act, was engaged or used for, or in any business, or exhibition or vocation, or purpose specified and as mentioned in this act; and when, upon the conviction of any person of a criminal assault upon a child in his or her custody, the court or magistrate before whom such conviction is had shall deem it desirable for the welfare of such child that the person so convicted shall be deprived of its custody thereafter, such court or magistrate may commit such child to an orphan asylum, charitable or other institution, or make such other disposition thereof as now is or hereafter may be provided by law in cases of vagrant, truant, disorderly, pauper or destitute children.”</p> <p>—I. The petitioner, Smith, is the proper person to have the custody, and the Society has no authority to hold the boys.</p> <p>II. The act of 1876 is unconstitutional, in that it imposes a penalty, and deprives Smith of his rights' to these children, without a trial by jury or due process of law (U. S. Constitution, Art. III, § 2; N. Y. Constitution, Art. I, §§ 6, 7; Hill v. People, 20 N. Y. 363 ; Cancemi v. People, 16 N. Y. 501; Wood v. City, &c., 14 Barb. 425; Matter of Janes, 30 How. Pr. 448; Wynehamer v. People, 13 N. Y. 378).</p> <p>III. The proceedings before the recorder did not constitute a final judgment (People ex rel. Trainer v. Cooper, 8 How. Pr. 288 ; Wilcox v. Wilcox, 14 N. Y. 575).</p> <p>IV. These proceedings were irregular, because based upon the act of 1833.</p> <p>I. The proceedings before the recorder constitute a final judgment. Section 3 of the act of 1876, provides for commitments in two classes of cases which are entirely distinct. 1. Unlawful use of child. 2. Welfare of child when criminal assault on it has been made. This commitment is made under the first provision, and is final (Opinion of Leonard, J., in Matter of Mary Miller, cited below; Case of the Twelve Commitments, 19 Abb. Pr. 394; S. C. as Matter of Helen Miller, 1 Daly, 562 ; Matter of Rice, 37 How. Pr. 494 ; Matter of McCabe, 8 Abb. Pr. N. S. 112 ; 3 R.S. 875, [6th ed.] § 36 ; 3 Id. 878, §55; 3 Id. 879, § 57; 3 Hill, 658, note 30; authorities collected in 3 Abb. N. Y. Digest, 565 ; Hurd on Hab. Cor. 326, 328). This provision of the act of 1876 is analogous to the vagrant law (2 R. S. 836, 837, §§ 1-3 [6th ed.] ). Such a committal under the vagrant law has repeatedly been held to be a final judgment (Matter of Mary Miller, N. Y. Special Term, Sept. 27, 1872). * The recorder’s judgment is a final judgment. All the evidence taken under my objection is inadmissible. The only inquiry that can be made is—First. Does such a judgment exist? Second. Had the recorder’s court jurisdiction % Neither of these points is disputed.</p> <p>II. The recital in the warrant of the act of 1833 is immaterial and mere surplusage. The warrant was based on the act of 1876. A reference to a wrong statute no more invalidates an order than a wrong reason does a right decision. Matter of Barre, 14 Abb. Pr. A. S. 426.</p> <p>III. The act of 1876 is constitutional. The State as parens patria., has the original right to the control and disposition of all minors. It confides a part of its right to a parent as a trust. Like every other trust, when abused, it is forfeited and the State reassumes its original powers (Chambers on Chancery Jurisdiction relating to Infants, pp. 5, 10, 158, 160-178; Willard Eq. Jur. 619 ; Mercein v. People, 25 Wend. 64, 103; per Paige, 104 ; 2 Story Eq. Jur. § 1341 ; 2 Kent Com. 205,-195 ; Forsyth Custody of Infants, 16, &c.; 52 Law Library U. S. 16 ; Hurd on Hab. Cor. 455, 462; Matter of Clifton, 47 How. Pr. 172 ; Wilcox v. Wilcox, 14 N. Y. 575 ; 22 Barb. 178 ; 1 Crary Sp. Pr. 388). It is an abuse of language, therefore, to talk of the “property ” which a parent has in his child. He has rights over, but no property in. It is a perversion of all reasoning to claim that the clause of the constitution providing that “property” shall not be taken “without due process of law,” and “just compensation ” applies to children. There can be no property in human beings under the constitution as it is. But if it did apply, the child is taken “ by due process of law” as next shown. The other clause invoked is: “The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. But a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Art. 1, § 2. There never was a time either here or in England when questions relating to the custody of infants were tried by jury. This is a distinct and perfectly well established branch of equity jurisprudence. There are many classes of rights which can be disposed of by courts without the intervention of juries. All equity proceedings (Matter of Empire Bank, 18 N. Y. 7.199, 210 ; Rathbun v. Rathbun, 3 How. Pr. 139). The acquiring of lands under eminent domain by commissioners is constitutional (Beekman v. Saratoga, &c., R.R. Co., 3 Paige,45; Livingston v. Mayor, 8 Wend. 85). The committal of vagrant and disorderly persons without a trial by jury on examination only, is constitutional (Duffy v. People, 6 Hill, 75 ; Morris v. People, 1 Park. Cr. 441; Plato v. People, 3 Id. 586). All cases which could be determined before 1777, without a jury, may now be so determined (See authorities collected in 2 Abb. N. 7. Digest [new ed.] pp. 123, 124). The act of 1876 is precisely analogous to the vagrant law. It is based upon it. The one permits the court to dispose of the vagrant, the other of the child upon “the examination,” (2 R. S. 836, §§ 1-3 [6th ed.]). The constitutionality of the vagrant law is undisputed. It descended to us as part of the common law. The right of the court of chancery to dispose of children descended in the same manner. It has been held that the disorderly persons act (Law of 1833), is constitutional, although it introduced to our law a variety of offenses unknown to the existing law, but of the same nature and embraced by the same principle (Duffy v. People, 6 Hill, 75, 79). The act of 1876 introduces nothing new. It only defines certain cases over which chancery had jurisdiction before. But if there was anything new, so long as it is analogous to the previous practice it would be constitutional under the above decision.</p> <p>IY. The caprice of a child should not be allowed to override his true interests in the selection of a guardian, especially when his imagination has been dazzled by the glare and glitter of the stage (Hurd on Hab. Cor. pp. 466, 531-535; People v. Mercein, 8 Paige, 47; Matter of J. N. Wollstonecraft, 4 Johns. Ch. 80).</p>

<p>Time fob Filing Petition to Remove Cause.</p> <p>A. default on an issue of law raised by a demurrer is a trial within the meaning of the act of Congress of 1875, as to removal of causes, and precludes a removal.</p> <p>[f a cause is at issue, and might have been put in a condition for trial by plaintiff putting it on the calendar and noticing it, he cannot, although'prevented from doing so by injunction, have it after-wards removed under the act of 1875.</p> <p>In a proper case, the court may impose the payment of an extra allowance in addition to costs, as a condition of allowing a discontinuance, even where there is an objection to jurisdiction.</p>

<p>What Causes mat be Removed to United States Circuit Court.</p> <p>Under the act of 1875,—allowing a removal of causes from the State courts to the United States circuit courts in certain cases,—an action in favor of an assignee (other than of negotiable paper), cannot be removed unless the United States court could have taken cognizance of the action, if no assignment had been mack.</p>

<p>Jurisdiction on State Courts.—Bankruptcy.</p> <p>Under the Bevised Statutes of the United States, the Supreme Court of Hew York has no jurisdiction of an action by an assignee or trustee in bankruptcy to recover property alleged to have been conveyed by the bankrupt, in fraud of his creditors.</p>

Motion to dissolve injunction. Mrs. Miller brought this action in the supreme court against her former husband, and F. Gr. Smedley, H. E. Crampton, and Charles H. Miller, executors and trustees, under the will of J. Miller, deceased, to reach the surplus of income arising under a testamentary trust for her said former husband, and apply it to pay a judgment for alimony.

This action was brought by plaintiff, as an assignee under an assignment for benefit of creditors, to recover on an account for goods sold, &e., by his assignor, to the defendant. Held: on the question as to the objection that the bond was not approved by the proper officer, that the assignment was not rendered wholly void ab initio thereby.

Appeal Tby the defendant from a judgment of the general term of the third department, affirming a judgment recovered by the plaintiff at the circuit. The action was brought by the Syracuse, Binghamton, and New York Railroad Company, against Charles W. Collins.

Robert MacDonald, as assignee in bankruptcy of David Solinger, brought this suit in the bankrupt court, against Wm. T. Moore, and others. On December 28,1875, David Solinger being insolvent, made a general assignment under the laws of the State of New York, of all his property to the defendant Mayer, in trust to pay his creditors share and share alike.

William. C. Prime sued the defendants to enjoin them from throwing snow from their track, and leaving it in heaps on the side of the street in front of his honse. The facts appear in the opinion. The cause came before the court for trial upon the pleadings. Cited 22 Edw. IV. 8, pl. 24; 16 Mass. 35 ; Commonwealth v. Temple, 14 Gray, 69, 75; People v. Cunningham, 1 Den. 524; Spencer v. London & Birmingham Rw.

<p>Partition. — Plaintiff’s title. — Parties. — Pleading. — Incumbrances.—Presumption of Payment.</p> <p>In equity, a deed by a wife directly to her husband, may be treated as valid.*</p> <p>Under an answer which “ neither admits nor denies,” defendant cannot take advantage of the objection that a deed relied on by plaintiff is. void.†</p> <p>The statute presumption of payment of mortgages, &c., arising from the mere lapse of time, though it does not avail to support at a demand for affirmative relief against the mortgage, may avail to. preclude the holder of the mortgage from claiming thereunder as a, lienor when made defendant in partition.</p> <p>A creditor by an entire lien on the whole premises is not a necessary party in partition ; but if made a defendant, the court may determine the validity and amount of the lien.‡</p>

<p>Demurrer to complaint.</p> <p>George H. Chatterton sued Lucy D. Fisk, as executrix, &c., of James Fisk, Jr., deceased, Jay Gould, Henry N. Smith, Henry H. Martin, and James B. Beach, for damages for breach of an alleged contract to purchase gold.</p> <p>The allegations of the complaint were in substance:</p> <p>1. That the deceased and the other defendants had associated to purchase a large amount of gold coin for speculative purposes, and accordingly employed, among others, one Albert Speyers, a gold broker, and member of the New York Gold Exchange, to buy large quantities on their account at said exchange, and subject to its customs, rules, and by-laws.</p> <p>3. That there then were rules of the Gold Exchange requiring that, unless otherwise expressed, all contracts for gold should be settled through the clearing department of the New York Gold Exchange Bank, and all sales at its board should be settled for the next day.</p> <p>3. That in pursuance of defendant’s orders, said Speyers, on September 33, 1869, as their agent, purchased from plaintiff, and plaintiff sold to him under the rules of said exchange, one hundred and seventy thousand dollars gold, at the rate of one dollar and a half currency for each dollar, to be settled for the following day, which was the market price at that time and place; and that plaintiff thereupon made arrangements, and was ready and prepared to make delivery thereof, through the clearing department of the Gold Exchange Bank on the following day.</p> <p>4. That by reason of the multifarious and enormous gold transactions of the defendants, and not otherwise, said clearing department was unable to effect a clearance of their contracts, maturing on the 24th, although said plaintiff had duly performed all the conditions of his contract, in providing said clearing house with all the customary and necessary means to clear with, and deliver said gold to, the defendants.</p> <p>5. That on said 24th, Speyers had notified the officers of the said bank, of his inability to fulfill any of his contracts at that time unsettled, and also notified the plaintiff of his inability to fulfill his contract with him; that in consequence of such inability, and of a like failure on the part of other brokers of defendants, and the immense number of said contracts, said G-old Exchange Bank, and said Gold Exchange were compelled to suspend business on that day, and did not resume business until Oct. 10, and the price of gold fell to 130, and thereafter to 106 1-4.</p> <p>6. That during the time of such suspension, plaintiff was ready and willing to fulfill his contracts with defendant through the agency of said clearing department, but defendants were, and continued in default, whereby,</p> <p>7. Plaintiff suffered great loss, was prevented from realizing profits on said sale, and making a like contract with others, to his damage, fifty thousand dollars.</p> <p>The defendants, Gould and Smith, demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>I. This was an agreement for purchase and sale, with mutual covenants, upon which neither could recover without showing his readiness and willingness to perform upon his part, together with an offer to make such performance, or facts excusing such offer (Dunham v. Pettee, 8 N. Y. 508; Lester v. Jewett, 11 Id. 453).</p> <p>II. There is no allegation of tender or offer of performance on the part of the plaintiff, nor any excuse for the omission.</p> <p>III. The allegation that plaintiff was ready and prepared to make delivery through the clearing department of the Gold Exchange Bank, is insufficient. 1. It is not alleged that plaintiff gave notice to defendant of his readiness or willingness thus to perform. Nor, 2, that he, plaintiff, made demand either upon defendants or the clearing department. Nor, 3, that he gave any notice to the bank or to its clearing department, of his readiness to perform. 4. It is not pretended that on or after Oct. 10th, plaintiff made any offer or demand.</p> <p>IY. The allegation that plaintiff ‘ ‘ duly performed, ’ ’ &c., is insufficient. 1. It is limited to those conditions which required him to provide the clearing house with customary and necessary means to clear. No such conditions have been previously stated, and no one can tell what these customary and necessary means were. A deposit of the gold with the clearing house for account of the defendants, cannot be meant, for plaintiff was not called upon to perform until defendants should have manifested their readiness to perform upon their part. 2. It being alleged that the bank had broken down from inability to do the work put upon it, plaintiff was bound either to find some other channel of communication with the defendants, or else to wait until the bank should resume.</p> <p>Y. There is no allegation that defendants were unable, or refused, or were asked to perform, nor even that they were not ready and willing to perform through the Gold Exchange Bank.</p> <p>YI. No facts are stated to hold defendants responsible for the break down of the bank. Defendants are not responsible for the incapacity of the bank, simply because they favored it with an unprecedented amount of business. Both plaintiff and defendants seem to have agreed upon a common agent which had not capacity sufficient for the work put upon it. One party is no more to blame for this than the other.</p> <p>VII. Plaintiff is not helped by the allegation that Speyers, the broker, notified the bank and plaintiff of his inability, because it is not alleged that the contract was made in Speyers’ own name. On the contrary it is alleged that >he bought as agent for the defendants. Therefore, he was under no obligation to fulfill these contracts, and plaintiff had no right to look to Speyers for performance; and there is no hint that defendants gave any notice of their inability to fulfill, nor that they authorized Speyers to do so, nor even that he claimed to act as their agent in doing so.</p> <p>VIII. The allegation that “said defendants were and continued in default,” is a mere legal conclusion and an entire nullity.</p>

Demurrer to complaint. Joseph G. Mills sued Jay Gould, John Doe and Bichard Roe, for damages for breach of an alleged contract to purchase gold. 1. The complaint alleged that defendants were partners. 3. Plaintiff was a stockbroker. 3.

<p>Foreclosure.—Deed Subject to Mortgage.—Personal Liability for Deficiency.</p> <p>In a "deed, a clause stating the conveyance to be made “ subject to the payment of a mortgage” specified, does not alone "render the grantee personally liable for the mortgage debt. To create such liability, the words used should clearly import.that.the obligation was intended by the one party and knowingly assumed by the other.*</p>

This was an application in the matter of the estate of John B. Kelly, deceased, for an order confirming the sale of certain real estate, ordered to be sold under the provisions of the Revised Statutes, for the purpose of paying the debts, on application of the administrators.

<p>Reference.</p> <p>A compulsory reference may be ordered in an action on • contract (difficult questions of law not being involved), if the ascertainment of the amount recoverable will necessarily involve a great number • of items, requiring the statement of an account, notwithstanding the defense is that the contract itself is void ab initio for fraud.</p> <p>Contractors, employed to construct a public work for a municipal • corporation, brought suit to recover compensation under clauses of the contract, which specified twenty-nine different classes of work, the amount of work of each class to be determined by the city engineer as the work progressed, to be paid for at specified rates. The defendants set up that the contract was made by fraud, and without authority, and was void. Held, that the.case was proper to be referred.*</p>

Demurrer to complaint. William Herries sued C. C. Norvell and others, seeking to charge them as stockholders of a corporation known as the “ New York Republican Newspaper Association,” formed under the general manufacturing law of 1848, and the amendments thereof, for “work, labor, and services,” performed for the corporation.

The action was in the main similar to those of Chatterton v. Fisk (p. 88 of this vol.), and Mills v. Gould (p. 93). I. It is constant practice to grant an allowance upon a discontinuance, when it appears that large expenses have been incurred before trial. In Troxell v. Haynes (Common Pleas, 1875), Judge Robinson granted the full allowance of five per cent, on a discontinuance.

<p>Divorce.</p> <p>A divorce cannot be granted for the husband’s fraud in inducing the marriage by false representations as to his character and property.*</p> <p>Under a verified complaint alleging a marriage, a divorce cannot be granted on evidence, taken in the absence of defendant, that the alleged marriage never had been consummated, and was represented to, and supposed by plaintiff, to be merely a betrothal.</p>

<p>Divorce.—Evidence of Marriage.—Conflict of Laws.</p> <p>The facts that the parties went to a distance for the. purpose of solemnizing a clandestine marriage, and that the plaintiff always spoke of the transaction there had as a marriage, although insisting that it was void because had under assumed names, raise a sufficient presumption that the transaction was per verba de presentí rather than de futuro, to overcome the contrary presumption arising from the ■ fact of a subsequent marriage to another person.</p> <p>A marriage contracted in a place where the parties are not subject to any local law in respect to such act,—e. g., a marriage in an Indian Territory between non-resident whites,—is to be judged by the law of their domicil.</p> <p>A marriage per verba de presentí, though not formally solemnized, and not followed by cohabitation, must be deemed valid under the civil law.</p>

<p>Answer in Libel.</p> <p>The complaint alleged that defendant charged plaintiff (a dramatic author) with appropriating a play called “Flirtation; ” the answer alleged in justification that plaintiff had appropriated a play called “Mock Marriage.” Held, that such a justification must be stricken out as irrelevant.</p> <p>A denial of malice in an answer in an action of libel is frivolous, unless connected with allegations of mitigating circumstances.*</p>

<p>Pleading in Action fob Defamation.—Real Party in Interest.</p> <p>In an answer in an action for defamation, allegations that plaintiff is not the real party in interest, but the action is prosecuted by some one else in plaintiff’s name, are not irrelevant.*</p> <p>To a cause of action for publishing a false, malicious, and irrelevant answer in an action, allegations that the action is still pending and undetermined, are not irrelevant.†</p>

Louis Haas, as assignee in bankruptcy of P. Flanagan (adjudicated a bankrupt May 18, 1873), brought this action in the N. Y. superior court to set aside an assignment for benefit of creditors, made January 9, 1873, under the State law above mentioned. It did not appear from the appeal papers when the petition was filed, nor whether it was a voluntary or involuntary bankruptcy ; but it seems to have been conceded on the argument that the petition was filed in time.

<p>Accounting of Assignee fob Benefit of Cbeditors.</p> <p>Under L. 1875, c. 56, § 4,—authorizing the county judge, &e., to refer-the accounting of an assignee for benefit of creditors, “to a referee or auditor, to be appointed by himfor that purpose, to take and state-such account,”—the order of reference should not direct the referee to determine the questions raised by objections to the account.*</p> <p>Exceptions to the report of such a referee must be in writing and! specific.</p> <p>The accounting or citation of a particular creditor, to enforce payment of the proportionate part of his claim, will not prejudice other-creditors.</p> <p>The assignee cannot be allowed for counsel fees and disbursements .in defending actions against the assignor, or in any litigation-not involved in the performance of duties required by the trust.</p> <p>For preparing and attending execntion of the assignment in this case, $25 is a sufficient' charge.</p> <p>Where the accounting showed a reckless waste of almost" the entire estate,—Held, that other counsel fees, paid should not be allowed to the assignee without specification of the character and necessity of the services.</p> <p>Of the duty of the assignee, to sell with diligence.</p>

<p>Principal and Agent.—Action for Refusal to Pat Draft.</p> <p>An agent authorized to draw upon his employer for moneys becoming due to him,—e. g., expenses,—may maintain an action against the employer for maliciously refusing to honor drafts drawn accordingly.*</p>

<p>Malicious Prosecution.—Complaint.—Motion to Change Place op Trial.</p> <p>In an action for malicious prosecution, an allegation of the complaint that the prosecution “ has been terminated in plaintiff's favor by the entry of a nolle, prosequi on motion of the district-attorney and with leave of court, and that the motion was made after consulting with defendant and in compliance with his request, ” is a sufficient averment of- the termination of the criminal charge in favor of plaintiff.</p> <p>A nolle prosequi, entered by leave of the court, is in effect a record promise by the people that the indictment will be no further prosecuted.</p> <p>Form of a complaint held sufficient.</p> <p>An amendment of course, changing the place of trial, prevents the hearing, in the original county, of a pending motion to change the place of trial on the ground that a fair and impartial trial cannot be had there, (p. 235.)</p> <p>But the motion may be heard in the county designated by the amendment, and may be determined as if no change had already been made. (p. 237.)</p> <p>Hence, if a fair trial could not be had in the county originally named, the court to which the cause has been removed by amendment, may in its discretion order removal to a third county.</p> <p>The court should grant a change of place of trial where the plaintiff by publications through newspapers has sought to create, in the original county, public opinion in reference to the case.</p> <p>Receiving costs on discontinuance does not necessarily prejudice a pending motion for extra allowance, (p. 245.)</p> <p>The argument of an unsuccessful demurrer is a trial, within section 309 of the Code.</p>

<p>Cause of Action.—Malicious Abuse of Process.—Conversion.</p> <p>A complaint alleging that defendant led plaintiff into making a hard and unconscionable lease, and then, after plaintiff had sown crops, &c., turned him off, and procured his arrest on a malicious charge of embezzlement, and took possession of Ms household goods, &c., and that all these acts were in pursuance of defendant’s plan to defraud plaintiff ; states but one cause of action.*</p> <p>In such a case it is not necessary to allege termination of the prosecution complained of as malicious. In this respect the action is for abuse of process.*</p> <p>In the course of the charge, the judge told the jury that if a demand was made on defendant for the property, “ and he gave an evasive answer, or, instead of saying yes ’ or ‘ no,’ said, ‘ I demand back my own property, ’ that would be a conversion.....But if he told him he could go and get it, as defendant says he did, then it was not a conversion.” Held, not error, as on the whole charge it was apparent the question of defendant’s right to refuse to deliver, was fairly submitted to the jury.†</p>

Appeals from orders for particulars. Charles B. Orvis sued Charles A. Dana for alleged libel in the publication in the New York Sun, of statements charging plaintiff with commercial frauds, &e. He also sued George Jones and Lewis J. Jennings for the publication in the New York Times of a similar article. Both articles gave numerous particulars.

<p>Motion for a better account than one already furnished.</p> <p>Newton W. Hoff, trustee appointed to fill a vacancy in the office of trustee under the last will, &c., of John Pentz, deceased, caused by the death of Smith Barker, brought an action against George B. Pentz, the defendant, for $14,500, part of $47,402 received by him from the city of New York for awards for lands belonging to the plaintiff’s estate, which lands had been taken for the opening of St. Nicholas avenue.</p> <p>The defendant demurred to the complaint; but the demurrer was overruled and the order overruling it sustained at general term. He afterwards was allowed to answer; and among other defenses set up an account stated. The plaintiff, under section 158 of the Code, demanded a copy of the account, which has been served. One of the items contained in this account was as follows—“ Contract, $14,500.” The plaintiff claimed that the account was defective in respect to this item, in that it did not specify what the contract was for, or to whom the money was paid, or when it was paid, or for what it was paid. The question came up on an order to show cause why a better account in these respects should not be furnished.</p> <p>Cited: Johnson v. Mallory, 2 Robt. 683; Fullerton v. Graylord, 7 Robt. 556 ; Dowdney v. Volkening, 37 Super. Ct. (5 J. & S.) 316 ; Kellogg v. Paine, 8 How. Pr. 329 ; Code, § 158 ; Moran v. Morrissey, 18 Abb. Pr. 134; Mason v. Ring, 10 Bosw. 605; Mathews v. Hubbard, 47 N. Y. 428; Lockwood v. Thorne, 18 N. Y. 292 ; Chubbuck v. Vern-am, 42 N. Y. 432.</p> <p>Cited: Phillips v. Suydam, 6 Abb. Pr. N. S. 289 ; Bowman v. Sheldon, 5 Sandf. 662; Cadwell v. Groodenough, 28 How. Pr. 479.</p>

<p>Security fob Costs.—Removal of Plaintiff.</p> <p>Security for costs cannot be required of a plaintiff, because of removal from the jurisdiction, unless he has actually removed, after the commencement of the action.</p>

<p>Security eor Costs.—Bond.</p> <p>An instrument executed by an individual and not expressly binding heirs, executors and administrators, is not a sufficient bond, under the statute.*</p>

<p>Motion was made by the defendant to open a judgment taken by default, which was dismissed with ten dollars costs. After the lapse of more than thirty days from the service of the order dismissing the former motion, and before the payment of the ten dollars costs, substantially the same motion was again made by the defendant.</p>

<p>Alias Summons.—Peremptory Mandamus.</p> <p>Upon the return by a marshal of a summons issued from a district court, “ defendant not found, ” after the lapse of time within which it can be served, plaintiff, on demand, is entitled to an alias summons, without waiting till the return day mentioned in the summons.</p> <p>The plaintiff can enforce his demand by a peremptory mandamus to the clerk of the court.</p>

<p>Summary Proceedings.</p> <p>In summary proceedings under 2 B. S. 513, a default taken at the time mentioned in the summons, without waiting the hour allowed by law in justices’ courts, is valid, and a court of. equity will not enjoin its enforcement.</p>

Motion to vacate judgment. This action was brought for salary of an assistant-alderman in 1875, February 17, 1876, and came to trial June 38, 1876. When the case was called at circuit, the plaintiff’s attorney partly opened the case before a jury already impanneled in a preceding cause.

<p>Harried Woman’s Note.—Mortgage op Separate Estate.—Vendor’s Lien.</p> <p>A note given by a married woman to secure to the vendor of lands conveyed to her, purchase money thereof, and designating the land, and expressing her intent to charge it as her sole and separate estate, for payment of the note, may be enforced by an action of foreclosure.*</p> <p>The doctrine of vendor’s lien expounded,†</p>

Motion to compel plaintiff to amend complaint. W. G. and J. E. McCormack conveyed certain real estate to the defendant, Dickson, who gave back a purchase money mortgage. The McCormacks afterwards assigned the bond and mortgage to the plaintiff, Newman ; and the defendant, Dickson, conveyed the land to one Fowler.

<p>Motion to punish Anthony Pirz for not obeying an order served on him for the examination of August Pierz, a judgment debtor.</p> <p>The plaintiffs, James Muldoon and John Lynch, obtained a judgment by default, defendant not having appeared, against August Pierz, in the New York supreme court, in the city of New York, in December, 1875, for $256.55, and a transcript thereof was filed in Queens county, where the defendant resided, and an execution issued, which was returned unsatisfied. On November 15, 1876, an order was obtained from Judge Lawrence for the examination of the judgment debtor, August Pierz, before a referee in Queens county. The person making the affidavit ■ of service states therein that “ he served upon August Pierz, the defendant herein (who said his name was Anthony) personally, copies of the within affidavit and order, by leaving the same with the said August Pierz (Anthony) said defendant herein, and at the same time and place exhibiting to him the within originals. And that he knew the said August Pierz (Anthony) to be the individual described in said affidavit and order.” As the defendant did not appear before the referee on the return day, Ms default was taken. Thereupon an order to show cause why defendant should not be declared in contempt, and an attachment issue against him was made. One of the affidavits upon which the order to show cause was obtained stated, “That the deponent was a book-keeper for the plaintiffs when the defendant contracted the debt for wMch tMs action was commenced; that he saw defendant on two occasions before the commencement of this action, for the purpose of collecting the afore-mentioned debt; that he served upon said defendant the summons and complaint herein, without objection from him as to any misnomer; that he served upon said defendant the order for examination in supplementary proceedings ; that he knows the person recited in the foregoing proceedings to be the one identical person named in this action as the defendant, and deponent knows the aforementioned person so served to be the judgment debtor herein.”</p> <p>I. That defendant had not waived Ms right to appear, even after judgment and execution (Farnham v. Hildreth, 32 Barb. 277, 281; Moulton v. de ma Carty, 6 Robt. 470).</p> <p>H. That service of a summons upon a party by a wrong name, did not give the court jurisdiction over Ms person, and Ms appearance could not be compelled, nor jurisdiction be acquired by amendments after service (Ib.; Hoffman v. Fish, 18 Abb. Pr. 76; Cole v. Hindson, 6 Term, 234; Griswold v. Sedgwick, 6 Cow. 456).</p>

<p>Arrest on Supplementary Proceedings.</p> <p>To make a case for arrest of the judgment debtor, in supplementary-proceedings (under the fourth provision of section 293, of the Code), by reason of anticipated concealment, it must appear or be presumable that such concealment of the debtor will be within the State.</p>

<p>Specific Performance.</p> <p>It is enough if the vendor, at the time and place fixed for performance, has the incumbrancers present, ready to discharge the in-</p> <p>cumbrances held by them, upon performance by the purchaser. Actual discharge before and independent of performance is not necessary.*</p>

<p>Foreclosure of Mortgage.—Attorney.—Payment.</p> <p>An attorney, with whom a mortgage, over-due, is entrusted “to be foreclosed,” is not authorized to receive notes for its payment, payable at a future day, nor is he authorized to extend the payment.*</p> <p>The payment of such notes to the attorney, who misapplies the pro- . ceeds, is not a payment on the mortgage.</p>

William P. G-lenney, on his own behalf and on behalf of other policy holders similarly situated, &c., brought an action in the New York superior court, against the World Mutual Life Insurance Co., the New Jersey Mutual Life Insurance Co., and D. J. Noyes, F. J. Mulligan, J. H. Stedwell, John Doe and Richard Roe, to set aside an election of Noyes and Mulligan, and enjoin an alleged threatened perversion of the reserve fund of the first-named company, upon grounds 'which are…

‘Robert Martin, as executor of Daniel Marley, sued Catherine E. N. Hicks (Countess Heinructh) in this court on a bond. The defendant brought a cross suit, seeking to set aside the bond, and for other relief, and relied in part on an informal memorandum, made by the deceased in presence of a servant, to prove that the bond was never intended to be enforced, but was delivered on a promise to surrender it cancelled forthwith..

<p>Affidavit fob Examination Befobb Trial.</p> <p>An Older for examination of an adverse party before trial can not be sustained on an affidavit in which material allegations are on information and belief.*</p>

William Smith sued Bobert Macdonald, in this court, for damages for an alleged breach of duty as a factor.

This was an action of ejectment for dower, brought by Eugenia M. Hodge against the city of Buffalo. On the trial the plaintiff was a witness for herself, and the only witness called. She testified that she is the widow of Philander Hodge; that she married him September 15, 1834; that he died October 22,1866, and that, to the best of her knowledge, information and belief, she was born August 18, 1817.

Motion to strike out an answer as sham. In January, 1861, Henry Shultze, by letter, directed the defendants Henry Rodewald and Franz Kremelburg, who were owing him $2000, in case of his death before its payment, to pay over the same to his sister Dora Schultze.

Motion to open judgment in partition. George L. Marvin and Elizabeth S. Ms wife, brought an action for partition of lands, against Le Grand Marvin (co-heir and co-executor with George, of the estate of Sarah L. Marvin, deceased) and nine others ; and in 1866, had judgment for partition of the lands between the two heirs. See 11 Abb. Pr. N. S. 102.

Trial by the court.. The Mutual Life Insurance Company of New York, brought this action against Jabez W. Dake, William Teeple and others, to foreclose a mortgage, which was executed by the defendants, Teeple and his wife, to the plaintiffs, on the 4th of June, 1870, upon lands in Livingston county, to secure the payment of the sum of $2,000, with interest.

<p>Jurisdiction of Superior City Courts.—City Court of Brooklyn.</p> <p>A corporation not established or having its general business in the city of Brooklyn, cannot be sued in the city" court on a cause of action which did not arise therein.</p> <p>Although, an individual defendant who, in such a case, answers solely to the merits and goes to trial without objection, may be deemed to have submitted to the jurisdiction, a corporation may raise the objection for the first time at the trial.*</p>

<p>Appeal.—Limit op Time.—Security on Appeal in City Court.</p> <p>If after notice to limit the time to appeal has been given, the judgment is amended in amount, even nunc pro tunc, a new notice is necessary to limit the time to appeal from the amended judgment.*</p> <p>Security is not éssential to effectuate an appeal from special to general term, in the city court of Brooklyn.</p>

Motion to require an assignee for the benefit of creditors to account.

Application to one of the judges of this court as county judge, for order compelling the assignor to submit to examination at the instance of the assignee, and to disclose any knowledge or information relative to creditors, assets, and liabilities, of the assignor (Act of 1874, chap. 600, § 1, amending Laws of 1860, chap. 348, § 2).

Application by a creditor to compel assignee for benefit of creditors to account. On return day of citation, issued by one of the judges of this court, as county judge, on the petition of the Bowery National Bank, a creditor of Wm. B. Duncan, requiring Wm. D. Shipman, assignee, in an assignment by the said Wm.

Petition by an assignee for the benefit of creditors for the consent of the court or its judges to his uniting in the re-organization of an insolvent railroad company, bonds of which were among the… Held: to the terms and provisions of such agreement or plan of re-organization. The application was ex-parte.

Motion in an action brought for the purpose for an order for removal of an assignee for the benefit of creditors; the appointment of a receiver ; and to continue an injunction.

Clement E. Beebee brought this action on a judgment recovered by him in this court, against Cyrus Pyle, the present, defendant, April 16, 1874, for $1267.68, upon a promissory note. The judgment was originally recovered by default, on April 16, 1874. In the action in which it was recovered the summons was for $1207.43, with interest from December 1, 1873. Less than a month before the recovery of the judgment a petition in bankruptcy was filed against defendant.

Demurrer to complaint. The complaint, after stating the incorporation of the plaintiff, and that the defendants, Edward W. Bancroft and T. F. Tracy, were sureties on a lease made by it to Morris Reiman, and Albert Friedlander, composing the firm of M. Reiman & Co., in December, 1872, for five years and two months from January 1, 1873, at the yearly rent of $17,000, payable monthly, alleged that in August, 1874, a petition in bankruptcy was filed in the district court of the…

<p>Attorney’s Bees.—Assignee in Bankruptcy.</p> <p>Where, after receiver appointed in a State court, an assignee in bankruptcy of the parties takes control of the action, the court will nevertheless protect the right of the original attorney and counsel to compensation out of the fund.</p>

Motion to open a judgment by default. This action was commenced in January, 1874, to foreclose certain mortgages on property in the city of New York. Donald Cameron was joined as a defendant, because he was one of the obligors upon one of the bonds for the sum of $50,000. He was duly served with a summons, but having no defense at that time,, did not appear in the action.

Appeal by defendant from a judgment for §1,186.24, entered in March, 1876, upon the verdict of a jury, and from an order denying a motion fora new trial. This action was brought by James McAlpin, as administrator of his son, John McAlpin, to recover damages for the death of the latter, when nearly ten years of age, caused by his fall through a fire escape on the premises of the defendant, Rebecca B. Powell, which the plaintiff occupied as tenant.

The action was brought by Catharine Fleming, as administratrix of Thomas Fleming, to recover $5000 damages from the defendant, for negligently causing-his death. The complaint alleged: “That on the 16th day of April, 1874, at, &c., while one of defendant’s cars was being driven rapidly along said street, one Thomas.

Appeal by plaintiff from a judgment of nonsuit, on the ground that he had not shown the negligence of. the defendant, and was guilty of contributory negligence. Richard Stamm, the plaintiff, was driving a horse and truck along Broadway, in the city of Brooklyn, on the right hand side of defendant’s track, the space between the track and the curb being thirteen feet.

Motion to supersede a writ of certiorari, issued to Sterling G-. Hadley and others, State assessors, for the purpose of reviewing their decision on an appeal from a board of supervisors. The writ is directed to the State assessors. It commands them to return their proceedings and decision, on an appeal taken to them from a decision of the board of supervisors of the county of Monroe, in the equalization of assessments, in the fall of 1875.

Demurrer to complaint. This action was brought by William Gr. Ward against Henry H. Richardson, to recover the sum of $204, which the former had been compelled by a judgment of the court to pay for taxes which, as collector of taxes, he had failed to collect from the latter. .

Trial by the court. Antoinette Brown brought this action against Charles T. Goodwin, executor, and others, to set aside a lis pendens, and to have a judgment declared not a lien or cloud upon title to land. William H. Goodwin, in his lifetime, and on February 2,1867, recovered a judgment in this court against Marquis D. L. Sharkey, for the sum of $171,875, upon which a transcript was filed, in the proper office, and an execution issued.

<p>Unsafe Building.—Notice of Survey of Building.—Report of Survey.</p> <p>Under 3 L. 1871, p. 1334, c. 635, as amended by L. 1874, p. 734, c. 547, the preliminary notice of the survey of an unsafe building served on the owner, is the foundation of the jurisdiction of the court.</p> <p>Hence, on the trial of the truth of a report of the survey, which, in addition to the defect mentioned in the notice, embraced many particulars showing the general unsafe condition of the building ; Held, that only the truth as to the defect mentioned in the notice could be tried, and that to compel repairs in other respects a new survey upon proper notice must be had.</p>

Motion by the defendant, to readjust costs. The action was by Darius Allen against William Mahon. The facts sufficiently appear in the opinion.

<p>Testimony of Parties.—Usage to vary Contract.</p> <p>The testimony of the plaintiff alone, though contradicted by two disinterested witnesses, is sufficient to sustain a finding of fact in his favor.*</p> <p>In an action on a promise to pay commissions to an insurance agent, evidence of a usage or custom of the trade to pay commissions only on premiums actually collected is admissible.†</p> <p>Under a general denial in an action on a contract, evidence of a cus- ■ tom or usage known to both parties is competent, by way of showing that the contract made was not that alleged.‡</p>

Matilda Wallace sued James Gordon Bennett, the proprietor o£ The New York Herald, for a libel, for publishing the following: “ 6 East Thirty-fourth Street.—Boarding.—Applicants before locating here, inform yourselves as to table, attention, and. characteristics of the proprietors.” The only matter of inducement stated in the complaint was that the plaintiff was engaged in keeping a boarding-house.

Application by defendant for an order to examine the plaintiff before trial. Moses D. W. Schepmoes began this suit against Othelia Bousson, to recover damages for alleged violation of her agreement to lease him certain premises, and for his being turned out of possession of the same.