Volume 1 — Abbott's New York Practice Reports

Motion, for leave to discontinue. The answer to the complaint in this action denied the indebtedness alleged in the complaint, and also set up a counterclaim. It was served June 10,1854. The plaintiff examined both of the defendants as witnesses, and then, on the 13th September following, no reply having been meanwhile put in, he served written notice of discontinuance of the action, tendering defendants’ costs, which they refused to accept.

Motion that plaintiff he required to reply to the first defence contained in defendant’s answer. The action was upon a promissory note, to which the defendant pleaded, first, the statute of limitations; secondly, payment.

This action was brought to restrain the collection of a tax imposed, illegally, as was contended, upon the plaintiff. The-facts sufficiently appear in the opinion.

<p>Pleading.—Cause of Action foe Accounting.</p> <p>Where the complaint alleged that the plaintiff and defendant had made an oral agreement to carry on the business of publishing books, to which the plaintiff was to contribute contracts with authors, &c., and was to give his personal attention for several years at a salary, and afterwards to have an interest in the business, and further alleged that under such agreement the defendant had become possessed of the stereotype plates of certain books, the right to, publish which, upon terms set forth in the complaint, was contributed by the plaintiff; but that the defendant refused to perform the agreement or to form the business connection contemplated, although the plaintiff had been at all times ready and willing, and had offered to perform; and that the defendant was proceeding'to publish such books in his own name, denying that the plaintiff had any interest therein, and refusing to surrender the plates and books, though the plaintiff had demanded them, and offered to indemnify him;—Held, that these facts were sufficient to constitute a cause of action.for a surrender of the hooks and plates, and an accounting.</p> <p>The former decision in this case (Redfield v. Middleton, 7 Bosw., 649) distinguished.</p>

I. Motion for an order requiring the referee to make a further report. This action was brought by Leopold Tilman against Maria J. ICeane, for a money demand on contract. It was commenced December 1, 1862. The plaintiff, in his summons and complaint, demanded judgment for $1,741 11, with interest from 1st September, 1862.

Motion to confirm the report of a referee and discharge an order of arrest. This action was brought by Mathilde Hnelet against Guillaume Reyns. The facts are stated in the opinion.

<p>The objection that the assessors have assessed property for a local improvement in the city of New York more than is allowed by law, may be raised for the first time before the Supreme Court on a motion to vacate the assessment.</p> <p>Where two members of the Board of Revision and Correction of Assessments meet and confirm an assessment, without the presence of or notice to the third, their proceedings are irregular; and the irregularity is not cured by a subsequent formal approval of the minutes by the third member of the Board nor by the Act of 1861.*</p> <p>Motion to vacate an assessment on certain lots belonging to Courtland Palmer, the petitioner.</p> <p>The petition in this matter asked for the vacation of an assessment on lots under water on 34th Street, between 11th and 12th Avenues, belonging to the petitioner, on the grounds, first, that such lots being under water were not benefited by the sewer for the' building of which the assessment was laid; second, that the assessment exceeded one-half of the value of the property, as fixed by the assessors of the ward, the valuation being $100 per lot, while the assessment was $142 upon each lot except the corner lot, which was assessed at $193,12; and, third, that the assessment list was only presented to two of the board of Revision and Correction, the Recorder being absent at the time the assessment was acted on by the Comptroller and Corporation Counsel.</p> <p>The affidavits showed, on this latter point, that on the 11th of July, 1861, when the assessment list was presented and confirmed, only the Comptroller and Counsel to the Corporation were present, but that on the 24th July, 1861, their next meeting, the. Comptroller and Recorder being present, the minutes of the previous meeting were read and approved.</p>

<p>Chattel Mortgage.—Recording.</p> <p>A chattel mortgage which does not specify a time for payment is dne immediately, and no demand for payment is necessary to sustain an action upon it</p> <p>It is the duty of the Register to index a chattel mortgage duly filed with him, and his omission to do so cannot prejudice the lien of a mortgagee who has done all required of him to make the mortgage valid.</p>

Demurrer to complaint. This action was instituted by S. S. Purple, assignee of Minerva Purple. The complaint alleged that the defendants; contracted to carry Minerva Purple from Greenbush to Canal-street, and deliver her there in safety; that she was violently thrown from the car when landing, by reason of its being started improperly, whereby she was severely injured: and that she had assigned the cause of action to the present plaintiff.

The action was brought by Mahaney against three defendants, upon a judgment rendered in his favor against them in the State of Virginia. The grounds of the motion sufficiently appear in the opinion of the court.

Appeal by the defendant Baker, from an order striking out his answer in the action,- and giving judgment. The action was brought by Benjamin DeFobest and Charles L. Rowan, against Alexander Strong- and Charles W. Baker, to recover on an undertaking given by the defendants, upon the issuing of an injunction against the plaintiffs, in an action previously brought against the latter in the Supreme Court, by one Robert Strong.

Motion to strike out portions of a complaint. The complaint stated an agreement entered into by Ancel St. John, brother of the plaintiff, and claiming to act as his agent, with Griffith and Brown the defendants; by which St. John sold to defendants a lease and fixtures of a hotel, the defendants agreeing to give a chattel mortgage as collateral security for the payment of the purchase-money, part of which was to remain unpaid.

An appeal was taken to the Supreme Court from a decree rendered hy the Surrogate of the County of Oneida in favor of a former guardian against his late ward and her new guardian, in a proceeding to settle the accounts of the former guardian after his removal. The appeal was argued at a general term for the Fifth District, held in April, 1865, and the decree of the Surrogate affirmed.

Motion to strike out an answer. This action was brought upon a promissory note. The answer denied information sufficient to form a belief whether plaintiffs were the lawful owners and holders of the note, or whether the defendant was indebted to the plaintiffs, as set forth in the complaint. The plaintiffs obtained an order to show cause, returnable in two days, why the answer should not be stricken out as sham, fri/oolous and irrel&oa/nt, and the plaintiffs have judgment.

This action was brought in a Justice’s Court, by David Gray, against Alexander Hannah. The material facts are stated in the opinion of the court.

The action was brought by Harvey M., and George H. Soule against Thomas B. Chase, on a judgment for two hundred and twenty-four dollars and ninteen- cents, which the plaintiffs had recovered against the defendant in May, 1855.

Motion to vacate the record of a judgment. Pendleton, the judgment debtor, brought an action in the Superior Court, to recover damages for the taking of his property upon execution, issued under the judgment now sought to be set aside, which was a judgment entered in the Supreme Court, but the Superior Court held the record conclusive to justify the taking.

This action was commenced in 1848, by Braxton and Markoe, against Aldrich. Braxton having died in 1850, the cause was continued by Markoe, pursuant to § 121 of the Code, by a supplemental complaint, filed in December, 1851. Upon the trial before Mitchell, J., 24 Nov. 1852, the plaintiff, after having proved the absence of one Harvey Mills from the State, offered in evidence his deposition, taken conditionally, (pursuant to Rev. Stats., art. 1, title 3, ch. 7, Pt.

<p>Alterations in Agreement.—Burden of Proof.</p> <p>It is a question of fact which should be submitted to the jury, whether material alterations appearing upon the face of an instrument containing an agreement inter partes, were made before or after its execution.</p> <p>An admission by one of two plaintiffs, embodied in his agreement with a third party, to the effect that the note now in suit was void,—held admissible in favor of the present defendant.</p>

Exceptions taken on the trial of the cause, and directed by the court to be heard in the first instance at General Term. This action was in the nature of trover.. It was brought by Dewitt 0. Haskins, to recover from John Kelly, sheriff of the city and county of Hew York, and Thomas Murphy, one of his general deputies, the value of several printing presses and materials, taken and detained by them.

<p>Joinder of Parties.—Costs.—Form of Judgment.</p> <p>It appearing upon the trial of an action brought against seven defendants, that five of them only were liable, the plaintiff moved to strike out the names of the other two. Motion granted with the addition that he pay their costs; and judgment rendered in favor of the two for their costs, and against the five for debt and costs. The allowance of costs to the two defendants severed, sustained on appeal.</p> <p>The proper form of judgment in such a case</p>

This action was brought to have a certain agreement of dissolution of partnership between the plaintiff and the defendant, construed as if a certain list of assets were a part of it, or so reformed as to carry into effect the alleged intention of the parties to have the list of assets so considered; also to have the defendant enjoined from enforcing a certain judgment recovered by him at law in the Blew York Superior Court against the plaintiff.

Jacob Frost having recovered a judgment against J. W. Post, and one Crawford, his attorney issued execution thereon, to Westervelt, then sheriff. The sheriff levied the execution upon property appearing to belong to the execution debtors, but claimed by S. P. Post, and sold it. Before paying over the proceeds, he required a bond of indemnity, which was given by the present defendants, Frost, the execution creditor, and Asa Stebbins.

<p>The facts sufficiently appear in the opinion of the court.</p>

The defendant, Bernard' Wolfe, hired a dwelling house of the plaintiff, covenanting to leave the premises in good order at the end of. the term, ordinary wear and tear excepted. He left it in had order; the plaintiff, RoswellD. Hatch,.Recr., &c., had it put in a tenantable condition, and brought suit to recover the amount so laid out.

<p>Illegal Taxation.—Denial oe Injunction.</p> <p>An injunction to restrain the collection of a tax illegally assessed, cannot be granted. The case of Wilson a. The Mayor, (ante p. 4,) cited and approved.</p> <p>Quaere; whether an action for an injunction would not be the most "convenient mode of calling in question the legality of a tax.</p>

<p>Appeal by the defendants from a judgment entered on a' verdict against them.</p> <p>This action was brought to recover a part of a lot of land on the north side of Twenty-fifth street, in the city of Hew York, 475 feet west of the Tenth Avenue, which the plaintiff claimed in fee, alleging that the defendants pretended to claim some right thereto,. but their claim was unlawful. ' The defendants were Jacob A. Palmer and Isaac E. Smith, the latter of whom was a tenant holding under the former:</p> <p>The cause was tried on the 16th day of December, 1861, before Hr. Justice Houcbief and a jury. The land lay originally in the Hudson River, 396 feet west of high-water mark, and 271 feet west of low-water mark. Both parties 'claimed under conflicting grants by the Corporation of the city of Hew York, which resulted from a controversy as to the title of two lots upon ■thé original bank or upland, in front of which the premises now in question lay. These two lots, designated in these proceedings as Hos. 117 and 118, were formerly the property qf one Hary Clarke. The plaintiff claimed under various mesne conveyances from Thomas B. Clarke, a beneficiary named in her will. The defendants claimed under her heirs, who were .also devisees under the will. • The title had long been in litigation. The plaintiff, after giving in evidence the deeds under which he claimed the two upland lots, proved that in 1849 he brought an action in this Court, against one John Farney, to recover lot 118, who held the same under the heirs and devisees, and who appeared and set up that claim as a defence in the action.; and that the plaintiff recovered judgment declaring the title to be in him, and awarding Mm possession; and that on appeal this judgment was affirmed by the Court of Appeals, and had been duly executed by putting the plaintiff in possession. These facts were proved by the judgment roll in that action, which was admitted in evidence against the objection and exception • of the present defehdants. In the same manner the plaintiff was allowed to prove a like recovery from Cortlandt Wood, of lot No. 117, • wMch had been claimed by him under the same heirs and devisees. ' •</p> <p>He also read in evidence the statute of April 3, 1807, by which the State of New York granted to the city of-New York certain lands under water in front of this bank of the Hudson,</p> <p>“ provided always that the proprietor or proprietors of the lands adjacent shall have the pre-emptiv-e right, in all grants "made by the corporation of the said city,” in such lands under water. He also read the Acts of February 5, 1826, and of April 12, 1837, of similar character. And he put in evidence a grant to himself from the City Corporation, dated November 29, 1859, and conveying premises described as water lot and vacant ground or soil to be made land, which included the lot in question in this action. He also produced another instrument executed by the Corporation, reciting that they had previously granted water lots, including thesq premises, to the heirs of Mary Clarke, and that the plaintiff had represented that he had established his title thereto, and releasing and quit-claiming them in consideration of payment of a gross sum in lieu of rents.</p> <p>The defendants, to prove title in Palmer, put in evidence the previous conveyance by the city to the heirs of Mary Clarke, which included the premises in question. This deed was dated March 31,1837; and the city and the heirs were the only parties thereto. It reserved .certain annual rents to the city, with a right to distrain or to re-enter for non-payment. The grantees covenanted also to fill in the parts of the water lot necessary for the streets, at their own expense, whenever required by, and according to the- directions of the city. The city also covenanted that the grantees might enjoy the wharfage from the water front lying between the streets as extended. After these provisions the deed contained the following clauses :</p> <p>“ And it is hereby further .covenanted and agreed by and between the said parties to these presents, and the true intent and meaning thereof is hereby declared to be, that this present grant, or any words, matter, or thing in the same contained phall not be deemed, construed, or taken to be a covenant or covenants of warranty or seizin of the said parties of the first part, or their successors, nor to operate further than to pass the estate, right, title, or interest they have or may lawfully claim . by virtue of their several charters and various acts of the Legislature of the People of the State of blew York; and it is further expressly understood and agreed, and these presents and the estate hereby granted, are upon this express condition, that if, at any time hereafter, it shall appear that the. said parties of the second part were not, at the time of the date of these presents,' seized of a good, sure, absolute, and indefeasible estate of inheritance in fee simple of, in, and to the lands and premises on the easterly side of the line of high water, and adjoining to the water lot and ground under water hereby conveyed, or so intended to be; or if the said parties of the second part, their heirs, executors, administrators or assigns, shall make default in the performance of any or either of the covenants above contained on their part and behalf to be observed, performed, fulfilled, and kept; then, and in every such case, these presents, and every article, clause, and thing herein contained, shall be absolutely null and void, and the said parties of the first part and their successors shall, and may forthwith thereupon enter into and upon the said premises hereby granted, and shall thereafter be seized of the said premises, with the appurtenances, free, clear, and discharged of and from any claim, right, or pretence of claim or right, of the said parties of the second part, their heirs or assigns, anything herein contained to the contrary notwithstanding.”</p> <p>The defendants gave evidence tending to show that upon the execution of the said grant of March 31, 1837, the grantees therein named entered into the possession of the premises thus • granted under claim of title, exclusive of any other right, founding such claim upon the said grant, and built a bulkhead on the Eleventh Avenue, and filled up the space between the same and the original shore, and that they have been in continued occupation and possession of the said premises under such claim ever since, by themselves and grantees, and had conveyed the lot in question to the defendant, Isaac E. Smith, who had let the same to the other defendant, Jacob M. Palmer.</p> <p>The Court instructed the jury, among other things, that the Acts of 1807 and 1826 and 1837, gave to the Mayor, Aldermen and Commonalty of the city of Rew York a fee to the land in question, with a limitation as to disposal; and that any grant or disposition thereof by the Mayor, &c., contrary to, or in contravention of, the terms of such limitation, was absolutely void, and the grantees thereby would take no interest or estate whatever. And that if the heirs under whom defendants claimed were not the legal owners of the upland lots 117 and 118 in 18.37, the Corporation grant to them was void in its inception, except that it gave a qualified possession or license to enter, and passed no estate or interest whatever to the land in question.</p> <p>In regard to the title of the plaintiff to those lots, he stated that;—if they found him to be owner they must do so irrespective of any decree or judgment in the case of Towle v. Farney ; he must prove his title in this suit to the lots Ros. 117 and 118, precisely the same ás he was required to do in that case. And as to the question whether the defendants had not made out an adverse possession for twenty years;—that, if they went into the possession of the premises in question under the grant to them in the year 1837, by commencing to fill up the land immediately in front of lots Ros. 117 and 118, covered by water, and progressed without any interruption, and had been in that possession from the 24th of February, 1840, they would be entitled to a verdict. But if they commenced to fill up in 1837, and ceased or abandoned the work, then that possession would not be such as’the law requires to give them title by reason of holding adverse possession.</p> <p>The defendants excepted to the first and third of the points above stated in the charge. The jury found a verdict for the plaintiff; and judgment having been entered thereon the defendants appealed.</p>

Demurrer to complaint. The facts sufficiently appear in the opinion of the court. We are not informed of the names of the respective counsel.

<p>Appeal from an order dismissing summons and complaint.</p> <p>The plaintiff, as assignee, brought an action upon a judgment recovered in this court, April 5, 1852, by A. D. Sage, ■against Braisted and Averill, the defendants. The defendants moved to dismiss the summons and complaint upon the ground that the court had not granted leave to the plaintiff to bring the action, as required by section 11 of the Code. The motion was granted, and the plaintiff appealed to the general term.</p>

Motion to strike out an amended complaint. The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been committed by defendant upon the wife; and was drawn substantially .in the common form. The defendant answered without awaiting the expiration of the twenty days, making a general denial. Subsequently, and within twenty days from the service of ■the original complaint, the plaintiffs served an amended complaint.

<p>Testimony taken upon Commission.—Proper mode oe Return.</p> <p>The power to issue a commission to examine witnesses abroad, is an innovation upon the common law, and should be strictly exercised.</p> <p>Where a commission is returned by an agent, his affidavit, as prescribed by statute, that he received it from the hands of the commissioners, and that it has not been opened or altered since he received it, is indispensable, unless waived by consent.</p> <p>A commission returned by express and unaccompanied by such affidavit, held, inadmissible ; although so returned pursuant to the order awarding the commission.</p>

<p>Application for admission to citizenship.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Motion to require plaintiffs to amend complaint. The plaintiffs brought this action as assignees of a demand which one James Whitney had against the defendant.

<p>Application for a writ in the nature of a commission de lunático inqui/rendo.</p>

Probate of a will. Barnard Phenis, the deceased, was a lieutenant in the 76th New York Volunteers, in the army of the United States, and had been a soldier from June, 1862, to the time of his death, which took place on or about the 18th day of August, 1864, at or near the Weldon Bail Boad in Virginia.

<p>Motion to strike out an answer as sham, and for judgment as for want of answer.</p>

Appeals in two cases, from the judgments entered therein, on the reports of a referee. The action in which the first opinion, below reported, was delivered, was brought by' John Graham. The other action was brought by Dewitt 0. Graham, and James S. Carpenter, as executors of the will of David Graham, deceased. Both actions were against the same defendant, Peter Chrystal.

After the evidence in the action had been closed, and while the defendant’s counsel was addressing the jury, the plaintiff’s counsel proposed to submit to a nonsuit, and was nonsuited. The defendants moved for an allowance under § 308 of the Code. It was objected that no trial had been had.

This action was brought by Clinton W. Conger, against Clarke V an dewater and William Valentine.

<p>Sheriff’s Certificate.—Issuing of Execution.</p> <p>The official certificate of a sheriff of another State is not evidence in this State of service of papers; his affidavit should be presented.</p> <p>Execution cannot issue upon a judgment after the death of the judgment creditor. The remedy of the executor, is properly to be sought by original action.</p>

<p>Application for a mandamus.</p> <p>The facts on which the application was based appear sufficiently in the opinion of Mr. Justice Mitchell.</p>

Order to show cause why plaintiff in the cross action, who was defendant in the original action^ should not have certain relief.

<p>Motion to dismiss an appeal.</p>

Appeal by the plaintiff from a judgment for the defendant, entered on the decision of Mr. Justice Babboub, after a trial before him… Held: as collateral security, sundry bonds of the Mineral Point Railroad Company, to the amount of sixteen thousand five hundred dollars, and eleven thousand dollars in bonds of the County of Iowa, which had been put in his hands, by the plainfifij and also the Iowa County bonds for twenty-two thousand dollar’s, so originally pledged by…

The suit was brought in the Sixth District Court. The summons was returnable at 9 a.m. It is the rule of the justice of that court to wait half an hour after the time of return, except where he is satisfied that the opposite party does not intend to appear, in order to give time for appearance. Through inadvertence it would seem, this case was called at about twenty minutes past nine ; the plaintiff proved his case and the justice rendered judgment in his favor.

<p>Appeal from a judgment of a district court.</p> <p>The facts are stated in the opinion.</p>

This was an action brought to recover for services rendered by plaintiff to the defendant. The issues were referred. The plaintiff having proved his services, the defendant adduced evidence tending to depreciate the value of them, and also showed, that some time after the services were rendered, the plaintiff gave his note to the defendant for seventy-five dollars, and paid it at maturity. The testimony was here closed on both sides, and the cause was summed up and submitted.

This action was brought against the defendant, as maker of' a check. At the joining of issue the check was produced, but-it was lost before the cause was brought on for trial. On the trial, before Phillips, J., January 31, 1854, the check appearing to be lost, the plaintiff offered a bond of indemnity, pursuant to statute. Objection being made, the justice refused, the-bond.

Proceedings to enforce a judgment against the representatives of a deceased defendant. The plaintiff, Amasa S. Foster, summoned Rufus H. Wood, administrator, and Sarah E. Messer, administratrix, of Willard Messer, deceased, to show cause why a judgment he had recovered should not be enforced against the estate. The facts are fully stated in the opinion. The case was argued at General Term, in October, 1863, the first time.

The suit was brought to recover for services rendered and disbursements made in an examination of title.

Motion, to vacate an order for the examination of a third person, in supplementary proceedings.

Motion to vacate an attachment. All the members of the firm of Ketchum, Son & Co., except Edward B. Ketchum, commenced an action against him, charging him with having fraudulently disposed of the funds and property of the firm, and praying for a dissolution of the firm, the appointment of a receiver, and an accounting of the effects oí the firm and of the partners therein, and that the balance due by tiie defendant might be recovered.

<p>Bond foe payment of judgment.—Effect of Appeal.—Waives.</p> <p>Where a bond with sureties was given, by one of several defendants, against whom a personal judgment had been recovered, conditioned for the payment of the amount of the judgment whenever ordered by the final decision of the court, such bond being given as a condition imposed by the court for refusing to appoint a receiver of specific property, upon which the judgment against the defendant had been declared to be a lien;—Held, that it was no defence to an action on such bond, that u$on an appeal the judgment was subsequently modified by reversing it so far as it imposed any personal liability upon the defendant who gave such bond, and affirming it as to the others.</p> <p>The voluntary act of the obligors in giving such a bond under an order which affords Ae party his election to give it or not, is a waiver of any objection to the authority of the judge making the order, to require such a bond.</p>

Motion to set aside judgment. The defendants were partners; and were indebted to the plaintiff, who was the father of one of them. He asked the firm to confess judgment for the debt; his son was willing to, but the other partner refused.

<p>Tender.—Specific Performance.—Measure of Damages.—> Contract Payable in Specie.</p> <p>Under the Act of Congress of February 25, 1862 (12 U. 8. Stat. at L., 711), making the notes issued by the United States, “lawful money, and a legal tender in payment of all debts, public and private, within the United States—a contract for the payment of a sum in gold and silver dollars is satisfied by payment in such legal tender notes.</p> <p>Thus, where a charter party was made in a foreign country, subsequent to the Act, with a stipulation that the freight was to be paid, if cargo were discharged in the United States, in gold and silver dollars, or by approved bills on London;—Held, that freight on discharging cargo here could be paid in legal tender notes.</p> <p>The claim for the freight is a debt of the consignor, within the meaning of th? Act, and the consignee may discharge it by payment in such notes.</p> <p>A contract to pay money in gold and silver cannot be specifically enforced, nor can any other damages be recovered, upon its breach, except interest.</p>

Demurrer to complaint. The complaint was, “ that on or about the 26th day of April, in the year 1853, at Brooklyn, in the county of Kings, the defendant wrongfully took and converted to his own use, one black horse, of the value of one. hundred and seventy-five dollars, the property of Andrew J. Parker.

This was an action of assumpsit. It was commenced and issue was joined in it before the Code. It was tried in 1852. The jury, under the direction of the court, found a verdict for the defendant. The questions of law arising in the case were directed, by the justice trying the cause, to be first heard at the general term, and the entry of judgment to be in the meantime suspended.

Pending the controversy for the office of Tax Commissioners for the City and Cdunty of Hew York, which is fully reported in People v. Woodruff, 32 N. Y., 355, the Comptroller of the city, Brennan, paid the salary of the incumbents’ deputy; and the adverse claimants having finally prevailed, Morgan, their deputy, the relator in the present proceeding, moved for a mandamus to compel payment of his salary.

The complaint states, as the facts constituting the plaintiff's cause of action, that Lord made a note dated July 6th, 1854, for the sum of $1000, payable four months after its date, to the order of Searls, at the Suffolk Bank, “which said note was afterwards indorsed by the defendant E. C. Searls, and delivered to the plaintiff.

<p>Appeal by the plaintiffs from a judgment entered in their favor, on a verdict rendered by the jury pursuant to the direction of the court, on the.trial of the cause.</p> <p>The plaintiffs, Sliadrach Eobinson and Charles H. Cummings, sued for money had and received by the defendants to their use, alleging in the complaint that in 1854 the defendants sold a quantity of corn belonging to the plaintiffs, on account of the plaintiffs, and that the defendants received for it, in or about the' months of October and Hovember, 1854, for the use of the said plaintiffs, and for them, two thousand three hundred and twenty-six dollars and thirty-seven cents. That the plaintiffs have often requested the defendant to pay them, the plaintiffs, the said money thus received by the defendants, but the defend- „ ants have neglected and refused, and still neglect and refuse to do so, and that the said defendants have had the use of, and interest upon, said money since it was received as aforesaid by said defendants, for the plaintiffs’ use.</p> <p>Judgment was demanded for the sum, with interest, from Hovember, 1854.</p> <p>The cause was tried on the 18th day of June, 1861, before Chief Justice Boswobth and a jury.</p> <p>The facts proved were as follows :</p> <p>In September, 1854, the plaintiffs, by their "agent, shipped a quantity of corn at the city of Buffalo, on board of tow boats owned by Edmund Savage, consigned to H." H. Wolf & Co. in the city of Hew York. Savage effected an insurance on the-com in the defendants’ company. At Albany the corn was trans-shipped on board the barge Hudson, which, on its passage to Hew York, became disabled, and partly sunk. The defendants intervened to save the'corn from total loss, and got up a portion of it, which they sold at auction for the gross sum of two thousand three hundred and twenty-six dollars and thirty-seven cents. The expense of raising the barge to get at the corn, the freight from Castleton, where she sunk, to Hew York, and the charges for" taking out and selling the corn, amounted to seven hundred and sixty-nine dollars and fifty-five cents, leaving in the defendants’ hands as net proceeds, the sum of one thousand five hundred and fifty-six dollars and eighty-two cents.</p> <p>This was proved by a stipulation entered into between the parties, which stated that the defendants, in saving the com, paid certain sums specified for that purpose, but nothing was said in the stipulation, nor was there any other evidence as to these expenditures being reasonable or necessary.</p> <p>Edmund Savage commenced a suit against the defendants on his policy of insurance in 1855. In the complaint in that suit, Savage claimed to recover for a total loss; but there was no count in the complaint claiming the proceeds of the corn. That action was tiled in April, 1861, and Savage recovered the value of the corn, less the amount received by the defendants for the sale of the corn.</p> <p>On the 13th of March, I860, the plaintiffs demanded of the defendants payment of the sum received by them on the sale of the corn, which was refused.</p> <p>Upon the trial of the present action, the Chief Justice instructed the jury that the plaintiffs can only recover the net proceeds of the corn; and interest only from the 13th of March, 1860, the date of their demand; and he directed them to find a verdict accordingly for the plaintiffs.</p> <p>The plaintiffs’ counsel excepted to the charge of the judge, and the jury found a verdict for the plaintiffs for one thousand six hundred and ninety-four dollars and fifty-six cents, for which judgment was entered. The plaintiffs appealed.</p>

This was one of three similar actions brought against the New York Central Mills. The complaints were upon promissory notes alleged to have been executed to the plaintiffs as the payees thereof, by an agent of the defendant thereto duly authorized. They contained the usual allegation of nonpayment, and demand of judgment for the amount thereof; and were duly verified.

<p>Motions.—Fibst Judicial Distbiot.</p> <p>The fair import of §401 of the Code is, that no motion shall be made in the-First Judicial District in a cause in which the venue is laid in another district. .</p>

Order to show cause why the attorney of the plaintiffs should not furnish certain information. There were ninety-nine suits brought in behalf of ninety-nine different plaintiffs, against the proprietor of the line of vessels known as “ Vanderbilt’s line for California and Nicaragua.” Nineteen of these suits were brought in the Supreme Court, forty-six in the Superior Court, and thirty-four in the Common Pleas. They were all brought by the same attorney.

<p>Appeal from an order at special term, striking out parts of .an answer.</p>

<p>Motion to open a judgment.</p> <p>The facts are fully stated in the opinion.</p>

The plaintiff claimed $13 damages, and the defendant pleaded a set-off. Neither party offered any testimony, and the justice rendered judgment for the defendant. The plaintiff appealed.

Saleas Corpus directed to the keeper of the penitentiary, directing him to bring the body of Sarah Stewart before the Judge. The return showed that the prisoner was detained by virtue of a commitment by Justice Connelly, on conviction of being a prostitute, and therefore a vagrant.

This action was brought by La Chaise and Fanché, against Lord, Brown and Marks. The facts out of which the action . arose appear in the opinion.

<p>Opening Inquest.</p> <p>After the lapse of two years from the entry of judgment upon an inquest, and the giving notice thereof to the defendant, the parties having been resident within the jurisdiction of the court, a motion to open the inquest will not be entertained.</p>

This action was to recover the possession of a plot of ground, on the southeasterly comer of Madison avenue and Thirty-first Street in the city of New York. Prior to the 21st of October, 1862, the plaintiffs, a religious corporation, Were the owners of the plot in question, and had erected thereon a church edifice, which they occupied as a house of worship. The complaint alleged the ownership of the plaintiffs, and the entry of the defendants.

Motion to set aside judgment. After judgment had been entered and execution issued in this case, the defendant asked leave of the plaintiff’s attorney to be let in to defend, alleging that he had never been served with any copy of the summons and complaint, that he had a good defence and also a counter-claim.

I. Jamicvry.—Motion that defendant be required to satisfy a part of plaintiff’s claim, admitted by his answer to be just. Ho defence was made to the complaint in this action, but a counter-claim was interposed, leaving however a balance due to the plaintiffs of $310. The defendant offered to let the plaintiff take judgment for that amount. The plaintiff however moved under § 244 of the Code for an order directing the defendants to pay the amount admitted to be due.

The plaintiff set forth in his complaint that the defendant was indebted to him for the proceeds of the sale of the plaintiff’s interest in the ship Mischief, and also for earnings of the ship; which proceeds and earnings defendant had received as agent of the plaintiff, and had been deposited by him to his own credit with his bankers. He prayed and obtained an injunction forbidding the defendant to interfere with the deposits.

<p>Admission of past of Plaintiff’s Olaim.—Satisfaction.</p> <p>Plaintiff sued to recover the price of goods sold to defendant, with damages for non-delivery of notes agreed to be given in payment for them. The defendant by answer, admitted the purchase of the goods at the price stated.</p> <p>Held;—:that an order might be made under $ 224 of the Code, requiring the defendant to pay the price of the goods.</p>

Mandamus. The relator was committed by a police justice upon a charge of forgery, and applied by his attorney to the city judge of Hew York, for a habeas corpus, on the ground that the commitment was insufficient; The city judge refused to grant the writ, and the relator applied to this court at general term, for a mandamus.

Motion to set aside judgment. The action was upon a promissory note made by the defendants, Greenwood and Brewster, in their firm name of Greenwood & Go. On the last day for answering by the defendant. Greenwood, which was the day after the defendant Brewster’s ■ time expired, towards the latter part of the afternoon, the attorney of both the defendants, served a joint answer by both of them.

This case was brought into this court on appeal from the judgment of a district court, and that judgment was reversed.* The appellant, who was the plaintiff below, desired the clerk to include in the amount of costs to be inserted in the entry of judgment awarded to him, the costs to which he would have been entitled had judgment been rendered in his favor in the court below. This the clerk refused to do, and appeal was taken from his decision.

This action was brought to obtain a divorce a vinculo, on the ground of alleged adultery of the defendant, and the answer set up the general issue. I. February, 1865. Appeal from an order requiring the plaintiff and his counsel to furnish sworn copies of certain letters within a time certain or debar him from giving their contents in evidence on the trial.

Certain sums were due from the plaintiffs, to the owner of certain real estate for rents of the same. The title being in litigation, the plaintiffs filed bills of interpleader against the defendants, De Peyster and Van Rensselaer, who were the adverse claimants, at the same time paying into court the rents, or a large portion of them.

This was an action against two defendants, Miller and Reed, as makers of a promissory note. The defence was usury. The defendant Reed applied for a commission to examine his co-defendant, Miller.

Motion to quash an indictment. The facts of the case, and the grounds of the motion, sufficiently appear in the opinion.

Motion to vacate proceedings for the claim and delivery of personal property. This was a proceeding under section 206, et segt., of the Code, for the claim and delivery of personal property. The affidavit on which the requisition was granted, was made by Allen W. Smith, as agent of the plaintiffs.

This was a motion by the defendants for a new trial, on exceptions taken at the trial, and there ordered to be heard at general term in the first instance. The action was brought by Horatio R. Wilcox and Joshua Draper, for goods sold and delivered in March, 1861, to a firm composed of the defendants and one George A. Dunlap, at the agreed price of four hundred and fifty dollars, on eight months’ credit.

The complaint set forth that the plaintiffs had been taxed’ upon two hundred and fifty thousand dollars for the year-1852, by the defendants the Board of Supervisors of the City of New York, whereas they could only rightfully be taxed upon one hundred thousand: and 'that the other defendant, Harvey Hart, receiver of taxes, was proceeding to enforce the illegal tax: and prayed the judgment of the court upon the facts set forth, that the plaintiffs were not liable to pay taxes…

Motion to strike out an answer as frivolous. The plaintiffs David and Andrew Wesson having procured the arrest of Jeptha Fowlkes, in the course of supplementary proceedings upon a judgment recovered by them against him, James W. Judd and Fowlkes gave an undertaking that Fowlkes should attend pursuant to direction of the judge, to be examined. Fowlkes having made default to appear, the plaintiffs brought this suit against him and Judd, upon the undertaking.

Motion under '§ 122 of the Code, that one Henry Delafield be substituted as the sole defendant, and the present defendants be discharged from all liability to either party, upon their' paying into court the sum of $348 17; or if that relief should be denied, then that Delafield should be made a co-defendant.

<p>Motion to set aside a judgment. The facts sufficiently appear in the opinion. ■</p>

The plaintiffs sued on a money demand arising on account' of goods sold, and upon the report of a referee, judgment was ordered for the plaintiffs for thirteen hundred and fifty-two dollars, ninety-two cents, including costs. Both parties appealed to the General Term. Both appeals were dismissed and the judgment below affirmed. The defendant then appealed to the Court of Appeals.

Appeal by the defendant from a judgment in the plaintiff’s favor, entered upon the report of Mubbay Hoffman, Esq., referee, before whom the issues in the action were tried. The complaint alleged, in substance, that on the 9th of November, 1853, the plaintiff, William, was .seized of the legal title, and was owner and in possession of premises in the city of New York, known as 313, 315 and 317 Bleecker street. That his. son, the defendant, William G-.

<p>Motion to quash two indictments.</p>

Plaintiff Gerald Cannavan sued the defendants Herman Hesdorf, E. E. Conklin, James Schindler, and Charles Cawley, for damages, for loss of a horse through falling through a pier in the possession of those defendants. On the trial,- the value of the horse, and its loss through the insecure condition of the pier, was shown. The defendants Conklin and Schindler set up that they had leased the pier to Herman Hesdorf, and no longer had any possession of or liability for the pier.

<p>Appeal from an order made at special term, modifying the terms on which, by a previous order, defendant was allowed to answer.</p>

Application to the court, by a special receiver, for instructions. The facts on which the application was based, are stated in the opinion.

<p>Slander.—Evidence.—Non-Suit</p> <p>In an action of slander, in charging the plaintiff with perjury, where the words alleged are not actionable in themselves, the plaintiff must show that the testimony charged to have been false was material and pertinent to the issue; and although the materiality and pertinency will be presumed as matter of law, yet the contrary may be shown by defendant.</p> <p>If it appear on the whole case at the close of the proof in the action for slander, that the testimony charged to have been perjury was wholly immaterial, or that the part of it to which'the charge of perjury related, if it related to part only, was immaterial, the defendant is entitled to a dismissal of the complaint.</p>

Motion to set aside judgment and subsequent proceedings for irregularity. The defendant was an elector residing in Saratoga County. The summons and complaint were served upon him by the sheriff of the county, on the .7th November, 1854; the day on which the general election of the State was held. No arrest was made, nor was any contemplated. Judgment was entered on failure to answer, on the 2d of December following.

Motion to strike out an ansvyer as sham. Held: and which they stated to be two hundred and twenty-three in number, at the price above stated, in consideration of their withdrawing proceedings against the Association.

Judgment in this action was entered against both defendants, Le Gal and Borland, upon an offer made by Le Gal, to allow the plaintiff to take judgment. Borland moved to set the judgment and execution aside. Being required to give security as the condition on which this relief would be granted, he appealed to the general term. The facts in detail are stated in the opinion.

This was an action for damages for taking a quantity of ultra marine blue, belonging to the plaintiff, and valued in the complaint at $153. On the trial of the cause, it appeared in evidence that the plaintiff at the time of the alleged conversion carried on a commission business in paints and ultra marine blue. The blue referred to in the complaint was consigned to the plaintiff for sale, and was by him stored with one James Byrne, at his store.

This was an action against the acceptor of two bills of exchange. The complaint contained three counts. The first claimed interest from the 18th of August, 1854, the date of the delivery of the bill to the plaintiffs. The second claimed interest from the 31st of August, 1854, the date of acceptance by the defendants, and the third claimed as damages the fees of protest.

I. Februa/ry.—Motion for a new trial. This was an action brought by Edward P. Fry, manager of an Italian Opera Company, against James Gordon Bennett, editor and proprietor of the New York Herald, for the publication of twelve successive libels upon the plaintiff in his private character, and as manager of the opera. A demurrer to the answer of defendant was interposed, upon which the plaintiff had judgment (5 Sand. 54), the usual leave to amend being given.

* The action was brought by Garrett S. Mott against Israel Goddington and John Herbert, to recover damages from the defendants, who were Israel Goddington and John Herbert, for the loss by fire of a mill and machinery, located at South Bound Brook, Hew Jersey. In June, 1861, the plaintiff and defendants entered into an agreement, whereby the defendants agreed to convey to the plaintiff, certain premises at South Bound Brook, upon which was situated the mill in question.

Justice Miller, on a trial before him, without a jury, at the Albany Circuit, in May, 1864. The action was brought by John S. White against Thomas Schuyler, to compel the defendant to transfer to the plaintiff one hundred and eighty-two shares of the capital stock of “ Schuyler’s Line Steam Tow Boat Association,” and to pay him certain dividends received thereon, which the defendant claimed to hold as his own property, by virtue of a contract dated June 2d, 1862.

Motion to dissolve an injunction. The action was brought by Alfred W. Turner against Bernice B. Smith, James Turner and John Kelly, the sheriff of the city and county of Eew York, to enjoin the defendants, Kelly and Smith, from selling, on execution against James Turner, the interest of the latter in the property of the firm of James Turner & Son, of which the plaintiff was the junior member.

<p>Appeal from a judgment on demurrer to answer.</p> <p>The defendant, Edwin James, was sued hy John Philipe and George Hilder, as trustees under a deed made by the defendant in England.</p> <p>The defendant answered, admitting the alleged contract, and setting up certain proceedings in bankruptcy in England. The answer alleged the presenting of a petition to the Court of Bankruptcy, with the concurrence of, and signed by, one-third in number and value of the defendant’s creditors; that the court appointed a trustee, to whom" he surrendered all his estate, and the other and further procéedings there taken in accordance with the said act, which, as he alleged, entitled him to receive a certificate from the said court, discharging him from his debts] It did not state that such a certificate was granted, nor that he was examined in respect to the matter of said petition by a commissioner in bankruptcy, or that such commissioner directed a meeting of all his creditors, or that any meeting of them was held, or that the requisite or any number of creditors agreed to accept any arrangement or composition.</p> <p>The plaintiffs moved at special term in 1863, to compel th< defendant to make the answer more definite and certain, and the motion was granted by the chief justice, who rendered the following opinion:</p>

The application was made under the act of the Legislature {Session Laws of 1865, 211, ch. 180) to .compel the .Common Council of the city of New York to create, by. the passage of an ordinance to that effect, the seventy-five thousand dollars of “ Market Stock,” provided by the fifth section of the statute. The defendants read no counter affidavits below, and the application was disposed of on the showing made by the relators. It appeared by the moving papers: 1.

Motion to set aside judgment for irregularity. The judgment in this case was entered upon a failure to answer ; the usual affidavit of service of the summons and complaint being filed. The defendant now denied the fact of service, by his own affidavit, and also produced the affidavit of one Plumbager, his book-keeper, who stated that some time in November he was served with a summons intended for Thurs-ton.

Motion that plaintiff make his complaint more definite and certain. The complaint in this action was filed to enforce a lien for materials furnished. The complaint stated that the materials were furnished by plaintiff in pursuance of a contract made by him with a contractor with the owner; but it did not state whether or not that contract was in conformity with the contract between the contractor and the owner.

Order for the examination of a judgment debtor. The affidavit on which the order had been obtained, stated, that a judgment was recovered against the judgment debtor sought to be examined, in'the First District Court of the city of New York, for $33 12; and that another judgment was recovered against him by the same plaintiff, in the Marine Court, for $511 561 It did not state in terms that these judgments were for twenty-five dollars, exclusive of costs.

Motion to set aside a complaint for irregularity. In this case papers were served for the foreclosure of a mechanic’s lien; but the complaint filed, contained nothing about any claim for a lien. It merely set forth in the usual form the indebtedness of defendant for work, labor and materials furnished. The defendant moved to set it aside.

This was an action brought against McOliff, and the corporation of the city of New York. Its object was to foreclose a mechanic’s lien, claimed by the plaintiff, upon a building owned by the corporation. The plaintiff had done work upon the building in pursuance with a contract between himself and McOliff, who had contracted with the corporation. The corporation appeared in the action; but the defendant, McOliff, made default.

Application, for an injunction to restrain the foreclosure of a chattel mortgage, and sale of the property, on the ground of usury in the loan. „

Verdict for plaintiff, subj ect to the opinion of the general term. This action was brought to recover money stolen from the plaintiff’s portmanteau, while he was staying as a guest at the New York Hotel, kept by the defendant. The answer denied that the house kept by the defendant, was a common inn, averring that it was a boarding house. ^ It also denied the loss alleged by plaintiff, and averred that if lost at all, the money was lost by the plaintiff’s own negligence.

This was an appeal by the plaintiff, from a judgment in favor of the defendants. - The action was brought to restrain the defendants, who were Asahel Jones and Gilbert 0. Platt, from alleged interferences with the business of the plaintiff, and for damages therefor. The cause was tried before Mr. Justice Robertson, without a jury, on the 15th of May, 1862.

Appeal, upon a bill of exceptions. This action was brought against John Heath and J. H. Col-ton, upon an undertaking alleged to have been given by them under the following circumstances : In 1850, Almy Slack, the plaintiff, commenced an action in the Supreme Court against Thomas Carnley, then sheriff of the city and county of New -York, to recover certain specific personal property. ' She caused that property to be taken by the coroner; and Carnley being desirous that it…

This was an action to recover the statute penalty for selling liquor without a license, alleged to have been incurred by the defendant.

<p> Habeas corpus. </p>

' Appeal by the defendant from a judgment in favor of the plaintiffs, entered on a verdict. The action was brought upon a policy of insurance, and was tried before Mr. Justice Moitobief, and a jury, on December 5th, 1862.

<p>The old form of entering judgment upon bond and warrant of attorney to confess judgment, by declaration for the penalty of the bond, cognovit, and judgment for the penalty, is unauthorized under the Code.</p> <p>The proper practice in entering judgment under the Code, upon confession, or upon bond and warrant of attorney, signed before July 1, 1848,—defined.</p> <p>It seems, that in entering judgment upon abend and warrant of attorney above five years old, it is necessary to give the defendant notice of motion for judgment.</p>

Motion by detendant to compel payment to her counsel by the plaintiff, ot a sufficient sum to meet the expenses of a retrial of the case, and to stay such re-trial, until the same should be paid.

<p>Lieu Law.—Bights op Shb-Cohtbactobs.</p> <p>Where a contractor with, the owner, for the performance of work, &c., towards the erection of a building, abandons the work before any payments become due, and wholly fails to perform, so that according to the terms of the contract, the owner is not liable, the laborers and sub-contractors cannot, by filing notices with the county clerk, acquire liens upon the building, or lot of ground, and compel the owner to pay them for the work and labor actually performed by them.</p> <p>Nor can they establish such lien and right to recover from the owner by proof that the original contractor was induced to enter into the contract by the owner’s fraud and false representations regarding the subject of the contract.</p> <p>Even if it be conceded that the original contractor in such case, instead of suing for the deceit, and claiming damages therefor, has the option to waive the tort and sue for the value of the work and labor, his laborers cannot exercise that option for him; they cannot waive the fraud practiced on their. employer, or relieve the owner from the liability for damages incurred by the fraud.</p> <p>The claim of the laborers and sub-contractors in such case, is not within the lien law.</p>

This was an action for enticing away the plaintiff’s wife. The -answer denied the enticing charged, and also averred on information and belief, that the plaintiff and Catharine Scherpf, referred to in the complaint as his wife, were never legally married.

Appeal by tire plaintiff from an order made by Mr. Justice Barboto, in March, 1863, granting a new .trial. The action was tried February 3d, 1863, before Mr. Justice Barboto and a jury, and a verdict rendered for the plaintiff. A case was made by defendant, upon which, as well as upon affidavits, asking for a new trial upon the ground of newly discovered evidence, he moved at special term for a new trial.

The complaint in this action, which was by Willard H. Smith against Maria Mulock, alleged, in the usual form, as the cause of action, a promissory note made by George W. Wood and William G. Mulock, by them firm name of Geo. W. Wood & Co., for the sum of two thousand five hundred dollars,—payable to the order of the defendant, and indorsed by her, and subse- c quently transferred to the plaintiff before maturity, and for value.

Demurrer to complaint. This action was brought by Landau against Louis S. Levy, as survivor of Mark Levy and Louis S. Levy, partners, and Louis S. Levy, as executor of Mark Levy.

This was an action brought by the plaintiffs to foreclose a mortgage, made by Eoberts. The Mechanics’ Banking Association had been made defendants—they claiming to hold another mortgage, made by Eoberts. By the referee’s report, it appeared that there was a sum due upon the mortgage in suit, to the plaintiffs, and also another to the Mechanics’ Banking Association. The latter now moved for judgment and sale, and satisfaction of their mortgage, &c.

This was an appeal from a judgment entered on a verdict against the defendants, recovered by Warren Ayrault, the plaintiff, on a trial before Mr. Justice Monell and a jury, on the 10th of December, 1862. The contents of the pleadings, and the material facts, are stated in the opinion of the court.

This was an action brought by Winthrop, as assignee of one Brown, to recover $150, for services rendered to the defendants, Meyer and Loovis, by Brown, as broker, in procuring a loan. On the trial the plaintiff put in evidence an assignment in writing, of the claim from Brown to himself. The assignment contained a covenant that the amount of $150 was due and payable from the defendants.

Demurrer to complaint. This action was brought by the plaintiff Kiersted on behalf of himself and such other of the persons interested in the controversy, as should come in, against the People of the State of Hew York, and the Rector, &c. of Trinity Church. The allegations of the complaint, and the grounds of the demurrer, appear in the opinion of the Court.

<p>Appeal from a judgment entered on a verdict for the plaintiff.</p> <p>The action was brought by Calvin Huntington against Charles Douglass and Thomas Douglass to recover damages for the conversion of certain goods, alleged in the complaint to have been “ converted ” by the defendants to their own use. The defendants, by their answer, denied the plaintiff’s ownership of the propertythey also denied any conversion thereof by them.</p> <p>The cause was tried on the 25th of March, 1863, before Mr. Justice White, and a jury.</p> <p>The plaintiff read in evidence an agreement as follows:</p> <p>“ Insured in Market Ins. Co.,</p> <p>“ N. Y., June 21st, 1861.</p> <p>“ We, the undersigned, have sold to Calvin Huntington, and “ delivered, as per invoice rendered this date, four thousand “ five hundred and forty-nine TSTST dollars, tools and mdse., for “ the sum of two thousand two hundred and fifty dollars, cash “paid to Harlow Huntington, on debts due him from the “ Douglass Manfg Co.</p> <p>“ The aforesaid goods are all stored in the north-east side £< of the upper basement of the store now occupied by us, Bo. “ 68 Beekman street, B. Y., insured in the name of Calvin “Huntington, and held subject to his order, any portion of “ which he may order sold, on consignment, by us, for which “ sales we agree to pay monthly, in cash, the amount the goods ££ cost him. The proceeds of the goods, over and above the “ costs and charges to Calvin Huntington, to go to the pay- “ ment of other liabilities of Harlow Huntington, for B. B. “ Douglass. , “ Charles Douglass,</p> <p>£< June 21st, 1861. “ Thomas' Douglass.”</p> <p>The plaintiff also proved an invoice, or bill of parcels of the goods, mentioned in the foregoing agreement, the heading to which was</p> <p>“ Mr. Calvin Huntington</p> <p>Bought of Thomas Douglass.”</p> <p>Then followed the items of goods sold, amounting in the aggregate to four thousand five hundred and forty-nine dollars and fifty-three cents.</p> <p>The invoice bore date on the same day as the agreement, and was receipted as follows:</p> <p>“ Deceived payment, on the conditions specified in the agreement, " Thomas Douglass.”</p> <p>There was no other delivery of the goods than such as is evidenced by the written instruments above referred to, and their being sepárate and placed by themselves in a part of the defendants’ store. The papers were signed at the defendants’ store, in the basement of which the goods had been placed.</p> <p>Subsequently, the goods were demanded by the plaintiff, of the defendant Charles Douglass, who refused to deliver them.</p> <p>The defendants offered to prove that the goods in question belonged to one Ames, and that the plaintiff knew this at the time of the sale to him, and that, before any demand was made of the defendants by the plaintiff, Ames, against the directions of the defendants, took possession of the property, and removed it from the defendants’ premises. This evidence was excluded by the judge, and the defendants excepted.</p> <p>There was conflicting evidence as to the delivery of the bill of sale to the plaintiff; the defendants testifying, substantially, that Bottom, to whom the paper was delivered as the agent of the plaintiff, was not to deliver it until the money was paid, and that the money had not been paid. This was contradicted by both Bottom and the plaintiff.</p> <p>The defendants also offered to prove that before the plaintiff demanded the goods, a portion of them had been taken and removed by the sheriff, under an attachment against Ames. -This evidence was also excluded by the judge, and the defendants excepted.</p> <p>At the close of the evidence, the judge directed a verdict for the plaintiff, leaving the jury to assess the damages from the evidence before them. To this the defendants excepted.</p> <p>From the judgment entered upon the verdict, the defendants appealed to the General Term.</p>

■ Motion for judgment upon a verdict for the defendant, taken subject to the opinion of the court at general term. The action was brought by Bushnell Stevens against John Hauser, to recover possession of a lot of land on the north side of Forty-sixth street, in the city of New York. The answer was a general denial. The trial was had before Mr. Justice Babboub, and a jury, on the 25 th of February, 1863.

Motion that defendants be required to satisfy a part of plaintiffs’ claim admitted by his answer to be just. The facts upon which the motion was based, appear sufficiently in the opinion of the court.

<p>The plaintiffs, in February, 1858, brought this action against the defendant fbr four thousand dollars, being the balance of the price of the steamship “ Star of the South,” which, in August, 1857, had been sold by the plaintiffs to the defendant for the sum of thirty-two thousand five hundred dollars.</p> <p>The only defence material to the decision, was an averment that three of the owners of the vessel, in order to induce the defendant to purchase it, “ represented and stated to the defendant that the engirie, machinery and propeller of said vessel was in perfect order, and all complete; that everything Avas complete, except that, the vessel wanted-new boilers; and on such representations, and trusting to such statements, the defendant purchased the vessel. * * * That on pumping out some Avater that was in the vessel, the defendant discovered that the engine was not all complete ; that the bed-plate was cracked, and the machinery otherwise badly damaged, and the propeller out of order, and injured. That such injuries were known to the persons who had possession of and oAvned such vessel, and Avere concealed from the defendant, and that to repair such injury and damage to the engine and propeller, and make them complete, the defendant expended the sum of fourteen thousand dollars.”</p> <p>There Avas evidence given to shoAv that the ship had been built in 1853 or 1854, at a cost of one hundred and twenty thousand dollars, and, at the time of her sale to the defendant, was Avorth several thousand- dollars more than the price at which die Avas sold. Upon the trial it was alleged that Captain Marks fiad, by his representations, prevented an examination of the bed-plate, etc. It was conceded that the defendant’s agent had hilly examined the hull, and evidence was given to shoAv that they had abundant opportunity to examine all the machinery, except the bed-plate, etc., which, it was alleged, was under water. The evidence of the plaintiffs showed that the bed-plate could also be seen.</p> <p>The court charged as follows :</p> <p>That a buyer is bound to examine what he is about to purchase whenever opportunities for examination are offered him, but there are exceptions to this rule, as where a party takes a warranty or purchase by sample; there is still another exception, as, if the seller be guilty of fraud in effecting the sale, such sale may be avoided. The defendant in this case does not set up a warranty; the defence on which he relies is that of fraud. The steamer and her machinery might have been examined, and it was the duty of the purchaser to examine her, and procure the aid of competent persons for that purpose, or to obtain a special' warranty; but if the purchaser, or his assistants, were prevented by artifice, or by any representation on the part of the plaintiff’s agents from malting a complete examination, the purchaser would he entitled to return the vessel, and avoid the sale, or, as he claims in this action, to retain the vessel and deduct enough from the purchase money to compensate himself for any damages he may have sustained.</p> <p>In this case the first representation relied on by the defendant, is that contained in the schedule.</p> <p>“ Engine department all complete.”</p> <p>The jury are to pass upon the meaning of the word complete, as applied to the engine department of a steamer- in its ordinary and common signification. In that view it means full—indicates that there is nothing deficient; that all the parts are there; not the condition of each particular part, or as to their being new or old, or the degree in which they may be worn, but that they are all there like the different parts of a watch. This is my understanding of that term, but the jury are at liberty to give it their own construction.</p> <p>But the defendant, did not rely upon this representation; he sent his brother with competent assistants to examine the vessel and her machinery. Every part of the machinery was examined except the portion under water, and it is claimed that they were prevented from examining that part of the machinery by the statement of Captain Marks, that it was in perfect condition, or all right, etc. The whole inquiry would, therefore, seem to be confined to the part of the machinery under water, and the representations in respect to it, and if the jury find that any artifice was resorted to on the part of plaintiffs’ agents, either by allowing the water to remain in the vessel and cover ^ the bed-plates, or otherwise, or if they should find that, the statements of „Captain Marks were made for the purpose of deceiving and misleading the defendant and his agents as to the real condition of the machinery under water, or if anything were said by Marks, Stanton, or by any other person to deceive or mislead the defendant, he would be entitled to reduce the amount of the claim against him to the extent of the repairs and damages to that part of the machinery which he was prevented from examining, but the jury must be satisfied that the representations were false, and that they had the effect of misleading the defendants.</p> <p>But although Captain Marks made statements which were untrue, yet if the jury find that the vessel and her machinery were worth all that was agreed to he paid for the same by the defendant, in other words, the defendant received the full value of the money, and did not sustain any damage by reason of such misstatements, they, in this action, become of no importance; they would have entitled the defendant to rescind the contract, if he had seen fit, but, as he elected to retain the vessel, he is only entitled to such deduction from the price as will equal the damage he sustained, and in this aspect of the case the jury should take into consideration the testimony as to the value of the steamer at the time of the sale to the defendant.</p> <p>That these were all questions for the consideration of the jury. If they found that the defendant was defrauded, they would make such a deduction from the plaintiffs’ recovery as would compensate him for the condition of and the repairs to the machinery which was under water, and the jury must determine the amount to be allowed to defendant in that event.</p> <p>The defendant’s counsel excepted to that portion of the charge contained in the last two paragraphs.</p> <p>The jury found a verdict for the plaintiff for three thousand one hundred and twenty-three dollars and fifty-seven cents, being the deduction of one thousand three hundred and thirty-five dollars and seventy-five cents, from the amount claimed by the plaintiff.</p> <p>From the judgment entered upon the verdict, the defendants appealed.</p>

<p>Admission of Pabt of Plaintiff’s Claim.—Satisfaction.— Attachment.</p> <p>When an order is made under section 244 of the Code, requiring a defendant who admits a part of the plaintiff’s claim to be just, to satisfy that part, and such order is served on the defendant personally and he refuses to obey it, the defendant may be attached for such disobedience, and if he does not show an excuse for it, may be punished as for a contempt.</p> <p>It seems that inability to pay the sum admitted to be due, would be a sufficient excuse for the apparent contumacy.</p>

I. June, 1854. Appeal from judgment at special term, sustaining demurrer to complaint. The complaint in this action averred that the defendant “for value received, made and delivered to the plaintiff his promisspry note, payable to the order of plaintiff and indorsed by himand set out a copy of the note which was for the sum of two hundred and four dollars, sixty-seven cents.

<p>Motion by plaintiff to require the defendants’ answer to be made more definite and certain.</p>

In this action, wiiich was brought by John S. Haviland against Peter Kane, the defendant was arrested, and not charged in execution after judgment had against him. He now moved for a supersedias.

Application to open a judgment of a district court. The plaintiff sued for rent as assignee of the lessor. Suit was brought in the Justice’s court of the 4th Judicial District. It appeared from the return of the justice and the affidavits, that upon the return day of the summons, the case was called very soon after 9 o’clock, that being the hour named in the summons. The defendant did not appear. The plaintiff proceeded, and called and examined his only witness, the assignor.

This action was brought by the Bank of Cooperstown against Joseph W. Corlies, Jr., Jonas G. Dudley, and Frederick Jacobson, survivors of the firm of Joseph W. Corlies & Co., and Lydia L., Joseph W., Alfred W. and Edward L. Corlies, executors, &c., of Joseph W. Corlies, deceased.

The plaintiff Lowber commenced an action in the New York Marine Court to foreclose a mechanic’s lien. His notice of lien was addressed to Winters and Childs. Childs was the owner of the premises sought to be,charged; Winters was the contractor engaged in building ; Lowber was a material man. Due notice to close the lien was served on the defendant in the notice, Childs; but none was served on Winters.

Demurrer to a complaint. This action was brought by the New York and New Haven Railroad Company against three hundred and twenty-four defendants, for the purpose of settling in one suit the numerous ' claims and questions which arose out of extensive frauds committed by Eobert Schuyler, the former president of the corporation, plaintiff. One of the defendants, Cross, demurred to the complaint. The facts involved, and the substance of the pleadings, appear in the opinion.

This was ah action brought byTheóphile Jananique to recover a piece of lace, and thirty dollars damages for the unlawful detention thereof by defendant, Isabella De Luc. An order of arrest against the defendant was granted upon an affidavit stating the cause of action, and that the goods were concealed so that the sheriff could not find them.

<p>Attachment against Vessels.—Superior Court of New York.—Recitals of Bond.</p> <p>The justices of the Superior Court of the city of New York have power to issue attachments against vessels, under the act of 1862.</p> <p>On an application for an attachment under that act, a specification of the debt need not be filed, unless the vessel has left the port where the debt was contracted.</p> <p>A bond given to discharge the vessel from such an attachment is not void by reason of irregularities in the issuing of the attachment. (Per Robertson, Oh. J.)</p> <p>It will be presumed that the requisite undertaking was given by the creditor on issuing the attachment, especially where the warrant recites that this was done.</p>

Motion on the part of the plaintiff to confirm a sale in partition. Also, on the part of certain of the defendants to open such sale. The action, was brought by Samuel G. Stryker against Harman Y. Storm and others. The facts involved in the present motions are stated in the opinion of the court.

The action was brought by William W. Wright and others, against Israel Ritterman. The facts are fully stated in the opinion of the court.

Habeas corpus. The writ was sued out on the relation of Israel Ritterman, imprisoned at the suit of creditors, against John Kelly, sheriff .of the city and county of Mew 'York. The facts of the case are stated in the opinion.

Motion to strike out portions of an answer. The portions of the answer objected to, and the grounds of the motion, appear in the opinion.

Motion that the attorney of plaintiffs he required to file with the clerk his authority to sue, and his instructions. This action was brought in the name of the Republic of Mexico, to recover sums alleged to have been received by the defendant, as agent of the Mexican government. The action was commenced in January, 1855, and an order was then made holding the defendant to bail.

The complaint contained two counts. In the first, it was alleged that during the months of August and September, 1863, the defendant, John Morrissey, kept a gambling establishment at Saratoga Springs, and that during such times the plaintiff, Pablo de Arrieta, at such establishment, made certain wagers and bets, which were, made to depend upon a game of lot or chance, commonly called “ faro,” which game of dot or chance, was under the management and direction of the…

Trial by the court, without a jury. This action was brought by Davis and others, against Henry L. Kinney and Daniel J. Townsend, to recover for goods sold and delivered in 1837. The plaintiffs at that time were partners in business, in New York city, and the defendants were partners in business in Peru, Illinois. The defendants in 1837 purchased goods of the plaintiffs to the amount of $7000, which were never paid for.

Motion to strike out one of the counts of a complaint. The complaint in this action contained two counts. The first averred an agreement to deliver to defendant certain merchandise, and that defendant agreed to send to plaintiffs certain other merchandise therefor; that plaintiffs performed their part of the agreement, but that defendant did not deliver as agreed, and had not paid for the merchandise delivered by plaintiffs; stating its value.

The answer of the defendant in this case, admitted a part of plaintiff’s claim, and the plaintiff thereupon obtained an order at special term, directing him to pay into court the sum of $4222 47, with interest from the date of the order, or (upon giving security for the sum of $876 65, in the manner specified), to deduct that amount from the above sum, and pay in the balance only. There are other provisions of the order not necessary to be noticed.

<p>Fraud and Legal Irregularity in Asssessments.—Vacating .—Power Conferred on three or more Persons.</p> <p>An assessment for the expenses of a local improvement in the city of New York, will not be set aside as fraudulent or irregular, merely because made before the work has been done. In such case, an estimate of the expenses being necessary, the assessors are authorized to make it, though not specially directed to do so in the ordinance.</p> <p>Where one of the assessors named in the ordinance of a municipal corporation resigns, and a successor is appointed by the officers in whom the power of appointment is vested by law, the latter must be notified to act. The remaining members of the board have not power to proceed without his presence or notice to him; and an assessment made under such circumstances is irregular.</p> <p>The ease of Beekman’s Petition (19 Abb. Pr., 245), affirmed.</p>

<p>Appeal from an order.</p> <p>The plaintiff obtained an order for the examination of the defendant Edward B. Ketchum, before the complaint was served. The facts are stated in our report of the cause, 19 Abb Pr., O.S., 24. .</p> <p>From the order the defendant Edward B. Ketchum appealed.</p>

<p>Motion to set aside judgment.</p> <p>The facts sufficiently appear in the opinion.</p>

The defendant, Donnelly, was indicted jointly with one Beales. On the trial, Beales was called by the prosecution, and admitted as a witness against' Donnelly; but objected to, as incompetent. Donnelly was convicted, and thereupon moved for a new trial, on the ground of error, in the admission of Beales’ testimony.

Motion to strike cause from the calendar. This action was commenced in Chancery against the North American Trust and Banking Company. A receiver was appointed and a decree made, dissolving the corporation, as insolvent. Subsequently, the cause being continued in the Supreme Court in Equity, the Bank of Liverpool presented a claim, and an' order was entered appointing referees to examine and report concerning the same.

¡Order to show .cause why injunction should not be made perpetual. The .commissioners-of .emigration of New York city leased from the corporation ¡the premises known as Oastle Garden, to he used as ¡a depot or station for the landing of emigrants. The plaintiff on behalf of himself and others, land owners in the neighborhood, obtained a temporary injunction against the defendants.