Volume 1 — Bosworth's New York Superior Court Reports

<p>When a written agreement has been duly made by and between two joint stock Express Companies (which they were competent to make) for the consolidation of the two companies and the merging of one of them in the other, bytwbich agreement the one to be merged agrees to buy 2000 shares of the increased stock of the other, and which stock such other agrees to issue and sell for $200,000, and by which the stockholders of the one to be merged are to have the right, mier alia, of becoming purchasers of such 2000 shares, in proportion to the amount of stock they hold in the company to be so merged, or to relinquish their stock to the company of which they are members and receive therefor such sum as they have paid on account of their subscription for the same and ten per cent, in addition thereto; and thé company to be merged, on the making of such agreement, through S., its President, notified all of its stockholders of such agreement and of its provisions, and in such notice offered to each of them, his election of either of the several provisions made, by such agreement, for the benefit of such stockholders, and E., one of such stockholders, on the receipt of such notice and offer, wrote a letter to S. as such President, inclosing in it E:’s certificate of stock (being the only evidence he had of any right to stock in such company), and by such letter declared that he declined to become a purchaser of any part of said 2000 shares, and that he elected to take the amount he had paid on his subscription for such stock, and ten per cent, in addition thereto, held, that, the election tendered to E., by S., on behalf of the company of which he was such President, and the letter sent by E. to S. with the declaration of his election thereby communicated, was an offer by S. (on behalf of said company) to receive back E.’s certificate and pay him therefor, which, on being accepted by E. (by declaring his election to surrender his stock-certificate, and receive the sum so offered to be paid), became a binding contract, irrevocable, except by the mutual assent of E. and of the said company,«as the parties to such contract. ,</p> <p>Held also, that, G-., to whom S., as such President, on the day of, and after the receipt of E.’s said letter, sold the stock which E. so declared his election to surrender (G-. having bought and paid for the same in good faith), acquired a valid title to such stock as between himself and E. and as between himself and the plaintifij who, subsequent to G-.’s said purchase, took from B. an assignment of said stock-certificate and of B.’s rights as a stockholder in the said company.</p> <p>It was also held, that, the fact that S., after offering to sell such stock to Q., returned said stock-certificate to E., with a request that he would sign an endorsement written by S. thereupon, in these words, viz.: “ I authorize and require Charles C. .Backus, -Treasurer of the U. S. Express Company” (the Company to he merged), “ to cancel the within receipt, and to issue, in its place, a new receipt for the same to such persons as Hamilton Spencer may direct”—, -and then return it to S., did not give and could not be regarded as having been intended to give, to E. a right to renounce the election he had made, or to treat the matter as opened for further negotiation:</p> <p>Held also, that, S. having, under such circumstances, sold the stock to Or., and the latter having paid for it, to the company of which S. was President, and the company having adopted the sale, and continuing to insist upon its validity, it did not lie with E., or the plaintiff as his assignee subsequent to such sale, to deny the authority of S. to make it.</p> <p>Also held, that, although the consolidation agreement required S., within 24 hours after being notified by any stockholder of the company to be merged, of his election to surrender his stock, and that he declined to be a purchaser of any of the said 2000 shares, to give the like notice, in writing, to the trustees of the other company (who were named), and who agreed that, on that being done, they would take and pay for the stock of such declining stockholder, yet, whether S. neglected his duty, in not giving notice to said Trustees, in the manner and within the time prescribed by said agreement, of E.’s said election, is a question between such trustees and S. or the company of which he was President, and that its just determination did not affect the rights or liabilities of E., growing out of his acceptance of the offer made to him by the company of which he was such stockholder.</p> <p>Held also, that, after such sale to G-. of, and payment by the latter for, such stock as aforesaid, E. could not retract his said election and hold the stock, even though it was satisfactorily proved that a conversation was subsequently had between E. and S. at Bochester, in which E. avowed a purpose to retain the stock, and S. expressed his gratification thereat, saying at the same time that the condition of the stock had not been changed since E. had declared his said election, and could not be, until S. returned to New York; and hence, also held, that it was of no importance that the statement of the facts found by the judge who tried the cause, did not-show whether he concluded such conversation to be what E. swore it was, or what S. swore it was; (their testimony in relation to it being in conflict.)</p> <p>It was also held, that the plaintiff who purchased from E. the stock-certificate he held and bis rights as a stockholder, after the transaction between S. and G-. had been fully concluded, stands in no better situation than E. would have done, and did not thereby acquire any rights superior to those which B. possessed, at the time of such purchase by the plaintiff.</p> <p>Held also, that the plaintiff by inquiring of E., at the time of such purchase, why the unsigned endorsement, or power of attorney, was written on the back of said stock-certificate, and by being informed by E., in answer to such inquiry, “in' substance of the reason why it was there,” acquired a knowledge of facts, and of acts of E., which concluded E., and divested him of the power to reclaim the stock, and consequently that the plaintiff, as such purchaser, acquired no right to t become a purchaser of any of said 3000 shares of stock, or to have any of it * issued to him.</p>

<p>An instrument in writing, by which one party “agrees to let for one year from its date” certain premises, and by which the other party agrees to pay the stipulated rent quarterly, and declaring that the “agreement shall continue in force and effect for one year from the date hereof)” operates as a lease, in presentí.</p> <p>When one person enters into a contract with two others by name, without knowing or having at the time any reason to suspect that they have a partner in the business to which such contract relates; in a suit upon such contract the two with whom it is made may alone be sued, and it is not necessary to make their partner, if they had one, a party. As to such a transaction, and under such circumstances, he may be treated as a dormant partner, although the plaintiff knew before suit brought that, the two had such a partner at the time the contract was made.</p> <p>When a lessee, not being permitted to take possession of the whole of demised premises, nevertheless enters into possession of the residue, and occupies and enjoys such residue, and pays full rent, for two quarters without claiming a deduction, and is sued for the third quarter’s rent, he cannot set up the fact that he at no time had possession of the whole, as a bar to the action. Such a withholding of a part is not an eviction, nor a matter of equivalent effect. He must pay for the part he has enjoyed, upon the principle of a quantum meruit.</p> <p>When the lessor, in a lease to two persons as lessees, agrees to render services of a stipulated character, for the lessees during the lease, for a commission, and the lessees, before the expiration of the lease, dissolve their co-partnership, and thenceforth each prosecutes the same business on his own account and solely for his own benefit, such lessor is not bound to render the stipulated services for only one of such lessees, and his neglect or refusal to do so is no bar to an action to recover subsequently accruing rent, nor will it give to either of such lessees a right of action which can be interposed as a counter-claim in a suit against the two to recover such rent.</p> <p>Nor will the fact of such dissolution, and an agreement between the lessees that each shall thenceforth occupy separately a distinct portion of the demised premises, accompanied by such separate and several enjoyment, of themselves and alone, affect the lessor’s right to maintain an action against such lessors jointly, to recover the rent which, by the lease to them, they stipulated to pay.</p>

<p>When, by a written agreement, the parties to it “bind themselves’ to perform it, and do not by its terms nor by implication bind any other person, they are personally liable to do or cause to be done, and to pay what they stipulate shall be done and paid, although they are in truth acting on the behalf or for the benefit of others: If in such an agreement they designate themselves as a committee of management, such designation will be regarded as a descriptio personarum.</p> <p>When, by such an agreement, one of two parties promises to pay money, the natural construction is, that the other party is to receive it, unless the agreement otherwise provides. When, by the agreement, the parties stipulate that a sum named shall be paid in weekly instalments, not saying by whom they shall be paid, and that “ a further sum” shall be paid by the parties of the second part, and especially When the consideration of the whole contract moving from the other party is to be delivered to and received by said parties of the second part, the true construction is that, the last named parties personally undertake to pay such instalments as well as the “ further sum.” And the party of the first part is the person to receive all of such payments, when the agreement neither specifies any other person as the one to whom either of such payments is to be made, nor fairly imports that some other person is to receive them.</p> <p>A stipulation in such an agreement that, “a further sum of five thousand dollars, as an indemnity to Isaac Jacobsohn, is to be paid in two notes of equal amounts, at six and eight months, by the parties of the second part,” imports, for the same reasons that, the party of the first part is the person entitled to receive the notes.</p> <p>Such agreement declaring that, the party of the first part is “ acting in behalf of Isaac Jacobsohn & others, interested in the contracts and engagements of sundry artists recently introduced into this country through the medium of Messrs. Tillman and Strakosch,” and by it, the party of the first part stipulating and obligating himself, “that, the artists above named are to be transferred and the contracts assigned to the parlies of the second part for the term of two months,” the whole scope and obvious meaning of such agreement indicate that, the plaintiff (whether with or without authority) assumed to act on the behalf of Jacobsohn & others not named, and to bind himself personally to accomplish certain results beneficial to the parties of the second part, in consideration of their agreement to pay to him for the benefit of those for whom he acted the money and notes stipulated for. In this aspect of the agreement, he is “a trustee of an express trust," as defined by § 113, of the code, and may sue in his own name, without joining with him those for whose immediate benefit the action is prosecuted. There is, therefore, no defect of parties, by reason of not making them parties to the action.</p> <p>If, under such an agreement, a delivery of the two notes to Jacobsohn would satisfy it qmad hoc, it is matter to be pleaded by Way of defence, and the complaint need not aver that they have not been so delivered, in addition to an allegation that the plaintiff; (the party of the first part) has duly demanded them, and that the parties of the second part refused to deliver them.</p> <p>It is not essential to a sufficient complaint, on such an agreement, that the plaintiff should allege that he had authority to make such a contract. The personal obligations which, by it, -he assumes, constitute a sufficient consideration to uphold it.</p> <p>An averment, in a complaint on such an agreement that, “he, (the party of the first part), and those on whose helialf the said agreement was made and entered into by Mm, have fully and faithfully performed and fulfilled all, and singular the covenants, and agreements, in the said agreement contained, on the part of the said plaintiff and those on whose behalf the said agreement was made and entered into by him as aforesaid,” is, under § 162 of the code, a sufficient allegation of the performance of the conditions, precedent to his right to demand the stipulated payments. v</p> <p>The fair meaning of that section is, that it may be stated generally that, the person or persons, by whom the conditions were to be performed, have duly performed, &c. But the plaintiff being a party to the suit and to the contract, an averment that he has fully and faithfully performed, &o., is an averment that every thing was done which he was bound to do or cause to be done.</p> <p>The dausé, by wMch the parties agreed “to execute a legal instrument, in due form of law,” &c., &c., cannot be so construed as to make the agreement actually signed merely mean that, by it the parties incurred no obligation except to execute such further instrument; as all the rights and obligations of the parties were settled and defined by the one they did execute. Although the complaint designates distinct parts of it as further causes of action, such designation may be disregarded, when it appears on the face of the complaint itself) that in truth they are only distinct and several breaches of the agreement copied into the complaint. Therefore, a demurrer cannot be sustained to any one of them, as not stating facts sufficient to constitute a separate and distinct cause of action.</p> <p>The making of the agreement and performance thereof by the plaintiff being once stated, the several allegations, of the breaches thereof by the defendant, may be regarded as distinct grounds of recovery rather than separate and distinct causes of action, and these breaches may properly be stated without repeating, before each breach, the averment of such making and performance by the plaintiff.</p> <p>The order, overruling a demurrer to the complaint, affirmed with costs.</p>

This is an appeal by the plaintiff from a judgment, at Special Term, in favor of the defendants. The action was on a policy of insurance upon goods, at and from New York by steamer or steamers to Chagres, at and thence by the usual conveyances across the Isthmus, at and thence by steamer or steamers to San Francisco.

<p>A common carrier, in respect to the time of the delivery of goods received by him for transportation, when there is no express agreement, is bound only to use due diligence, and may excuse delay by showing that it was caused by "some accident or misfortune occurring, without any fault on his part.</p> <p>But this immunity does not extend to cases in which, although the carrier himself is free from fault, the delay has been caused by the negligence or misconduct of the agents or servants whom he employs.</p> <p>The liability of a master, for a neglect of duty by his servant, exists independently of the question, whether any fault is imputable to himself; for the master, in assuming to perform a duty to third persons, assumes also the hazard of the competency and fidelity of the agents he employs.</p> <p>This rule, which undoubtedly applies where the master is a natural person, applies even with greater force when the employer is a corporation.</p> <p>The operations of corporations are necessarily conducted by the instrumentality of agents, and to excuse them from the performance of any duty which they owe to third persons, on the ground of the misconduct of their servants, would be, practically, to exempt them from liability for any negligence or misfeasance not the immediate or necessary consequence of a corporate act.</p> <p>In the case before the Court, the delay in the transportation upon the defendants’ road, of the plaintiff's goods, by which they were rendered nearly worthless, was caused solely by the misconduct of nearly all the engineers, and other persons, in the employ of the Company—whose services, in conducting the road, were indispensable, and who, without any justifiable cause, broke their contract with the Company, and by a combined action, upon one and the same day, abandoned their employment.</p> <p>Held, that although no want of prudence or foresight in not anticipating this event, and guarding against its consequences, could be attributed to the defendants, and although it was not in their power to procure, immediately, the services of competent persons, to replace those by whom they were deserted, the law furnished no reasons for exempting them from a liability to make good to the plaintiff the loss which he had sustained from the misconduct of those whom they had emjdoyed. A sudden combination and strike of engineers is an event that may occur upon every railroad, and the hazard of its occurrence must, in all cases, rest upon the employers, who alone have it in their power to. secure, by proper contracts, an indemnity against its consequences.</p> <p>A Court of Justice has no power to relieve Bailroad Companios from the hazard to which, the nature of their business, and the vast extent, to which it involves the employment of agents, necessarily subjects them. If a single engineer, having charge of a train, by his sudden refusal to perform his duly, should produce an injurious delay, the liability of the Company employing- him, would hardly be doubted, and certainly the rule of liability cannot be varied by the number of the agents or servants who at one time are guiliy of the same misconduct.</p> <p>Held, that the allegation that the engineers who, in this case, abandoned their engines, were not the servants ofthe defendants when the delay complained of occurred, and that for this reason the defendants are not responsible, was unsupported by proof, since there was no evidence that their contracts with the Company had expired, or by any mutual act had been rescinded.</p> <p>Held, further, that even upon the supposition that the desertion of the engineers put an end to their connexion with the Company, still, as this desertion was itself the cause of the delay' that followed, and was a wrongful act committed by persons who, at the time, were the servants of the Company, the defendants were responsible for its consequences.</p> <p>Judgment for plaintiff affirmed, with costs.</p>

<p>The plaintiff was employed by the firm of H. 0. Seymour & Co., of whom the defendants are the survivors, to procure for the firm from the directors of a Railroad Co. authorised to construct a railroad from Cincinnati, Ohio, to Illinois town, Illinois, a contract for building the road, and agreed to pay him for his services, should he succeed in obtaining the contract, the sum of $] 0,000. The plaintiff concealed his own agency, and the contract was obtained through the influence, with the directors of the company, of third persons employed by the plaintiff, and acting for a pecuniary reward. He claimed in this action to recover the $10,000 with interest, which the firm of H. 0. Seymour & Co. had stipulated to pay him.</p> <p>Held, upon a foil examination of adjudged cases, that the contract, upon which the action was founded, if not in its terms, yet from the nature of the means that were used to influence the action of the directors of the Railroad Co., by an agent of the plaintiff, was an agreement, which, as contrary to morality and public policy could not be enforced.</p> <p>Judgment for plaintiff reversed, and complaint dismissed with costs.</p>

<p>This was an equity suit, and its objects were to compel the defendant Davenport to surrender to the plaintiffs the possession of certain lots in the city of New York, and to convey to them a clear title, and to account to them for the rents and profits received by him during his possession. The plaintiffs claimed title as devisees under the will of Mary Clarke, who died seized of the premises. The defendant Davenport derived his title by mesne conveyances from one Thomas Ash, Jr., to whom the lots were sold and conveyed by Thomas B. Clarke, the father of the plaintiffs, by virtue, it was alleged, of his powers as a trustee under certain acts of the Legislature and orders of the Chancellor. The plaintiffs insisted that the orders of the Chancellor were void, as exceeding his authority under the acts of th,e Legislature, and also insisted, upon other grounds, that the sale and conveyance to Ash were fraudulent and void. They also insisted that the defendant was bound to prove the money consideration, stated in the deed to Ash; and that no such proof having been given, the Court was hound to hold, that as against the plaintiff the conveyance was void. The conclusions of the Court upon the whole case were—</p> <p>First.—That Thomas B. Clarke, on the 12th of November, 1817, when he sold and conveyed to Thomas Ash the lots in controversy, had full power and authority, as a trustee under the acts of the legislature and orders of the Chancellor mentioned in the pleadings, to sell the same, and to give to a bond fide purchaser a good and indefeasible title.</p> <p>Second.—That the conveyance to Ash, in its terms and upon its face, was exactly such as Clarke, under the statutes and orders before mentioned, was fully authorized to make.</p> <p>Third.—That this conveyance, being a deed of bargain and sale, and its execution and delivery being admitted, was sufficient proof, in the first instance, that it was in realty founded upon the pecuniary consideration therein stated; and that the acknowledgment therein contained was also sufficient proof that the consideration mentioned was, in fact, paid.</p> <p>Fourth.—That this deed, therefore, upon its face raised a use which, by force of the statute, was executed in the purchaser, thereby vesting in him a full legal title to the premises in question.</p> <p>Fifth.—That the burthen of proof to impeach the validity of the deed, by showing a different consideration than that therein stated, was cast upon the plaintiffs, and that the allegations in the hill which were put in issue by the answer, that the true and only consideration was the satisfaction of an antecedent debt contracted by Clarke for his personal benefit, were wholly unsustained by proof.</p> <p>Sixth.—That the'title acquired by Ash was not impaired or affected by an alleged misapplication by Clarke of the purchase money received by him. The case not belonging to any class of trusts in which, as the law formerly stood, a purchaser from a trustee was hound to see that the purchase money was properly applied to the purpose of the trust.</p> <p>Seventh.—That there was no evidence that could justify the Court in saying, that the orders of the OhanceEor, under which the sale and conveyance to Ash were made, were procured, as is aEeged, by a concealment and misrepresentation of material facts; hut that, on the contrary, the truth of the representations contained in the petition of Clarke, upon which the orders were founded, was estar blished by the report of the Master to whom the petition was referred, and by the confirmation of that report by the OhanceEor,</p> <p>Eighth.—That had the clearest proof been given, that the orders in question were procured by fraud, yet, as they were regular and valid on their face, the fraud would not have affected the title of an innocent purchaser, and there was nothing in the pleadings or proofs to show that actual or constructive notice was imputable to Ash.</p> <p>Upon these grounds the biU was dismissed with costs.</p>

<p>J. Thomas, by his last will, devised all his estate to trustees, in trust, to apply so much of the rents and profits as might be necessary to the support and maintenance of his wife during her life, and to divide the residue among his three children named in the wifi, during their lives. Two, only, of the children, and the wife, survived the testator.</p> <p>Meld, that the trust created no suspense of the power of alienation beyond the lives of the two children living at the death of the testator.</p> <p>Meld, that the provision for the wife was in the nature of an annuity, and was, therefore, a legacy, and a charge within the meaning of sub. 2 in § 55 of the Statute of Uses and Trusts, and that it was to this sub. of § 65 that the trust (created for its satisfaction) must be referred.</p> <p>Meld, therefore, that the provision created no suspense of the power of alienation during the life of the wife. The will, as construed by the Court, directed that the estate of the trustees, as to the real estate, should cease upon the death of all the children, and the fee then go to their heirs.</p> <p>Meld, that if the provision for the wife suspended alieriation during the continuance of the triist, the suspense ceased when the trust was determined; and the provision then became a mere charge upon the lands m the possession of the heirs as owners.</p> <p>Held, that a charge upon lands in the possession of the owner, neither at common law nor under the statute, creates a trust suspending alienation, or any trust whatever. Such a charge is simply a debt, for the payment of which the lands are a security, and it imposes no restrictions upon the transfer of the debt or of the lands.</p> <p>The testator authorized his trustees to grant leases for a term not exceeding twenty-one years from the making thereof.</p> <p>Held, that these words confined the trustees to a grant of leases in possession, and that when a power to lease is thus limited, a lease, to commence in possession upon a future day, is wholly void.</p> <p>Held, therefore, that a lease in question, which was executed and delivered on the 20th of December, 1849, for a term of years not to commence until the 1st of May, 1850, was void in its creation upon its face.</p> <p>The testator directed that his trustees, in making leases, should reserve the best and most improved rent that could be gotten; and it was proved upon the trial, and found by the Judge, that when the lease in question was executed, a much higher rent than that reserved could have been obtained.</p> <p>Held, that a trustee, directed to obtain the best rent, is bound to the exercise of reasonable diligence,"as well as of good faith; and as it has clearly appeared that this diligence had not been used, the lease in question must, upon that ground, be adjudged to be void.</p> <p>A lease for a longer term of years than is authorized by the power under which it is made, although bad at law, is good in equity for a term corresponding with tire power, and is void only for the excess.</p> <p>The counsel for the appellant insisted, that as the whole title, legal and equitable, in the house and lot to which the controversy related, was vested in the existing trustee under the will, he was the person alone competent to maintain the actionj and that, as he was not the plaintiff, but had been made a defendant, the complaint ought to be dismissed.</p> <p>Held, that as the object of the action, so far as relief was sought against the trustee, was to enforce his performance of his trust, it was properly brought by a person for whose benefit the trust was created, and was warranted by the express words of the very section in the B. S., that had been relied on in support of the objection. (§ 60, 1 B. S. p. 129.)</p> <p>Judgment for plaintiff affirmed with costs.</p>

<p>The American Mutual Insurance Company of Amsterdam, having insured the plaintiffs against loss or damage by fire, and having issued some nineteen other policies insuring the like number of other persons or firms, its agent, while such policies were in force, entered into an agreement with the defendants, The Commercial Fire and Marine Insurance Company, of Jersey City, by which agreement the latter “reinsure the.American Mutual Insurance Company of Amsterdam, upon the following policies issued by them,” (specifying the said twenty policies,) “loss, if any, payable to the assured upon the same terms and conditions, and at same time, as contained in the original policies. Reinsured from November 30th, ISBA 12 o’clock, at noon, to the expiration of the policy.”</p> <p>Seld, that such agreement was a contract of reinsurance, and that the plaintiffs could not sue upon it. That any moneys recoverable under it, for a breach of it, would be the property and assets of the Company so reinsured. That the plaintiffs had no right to such moneys, nor any lien upon them to satisfy a loss under the policy issued to them, notwithstanding the Company which insured them had failed before such loss occurred. That the word “ assured” in such agreement meant the Company re-insured, and not the assured in the original policies, and that it could not be shown by parol that it was the understanding between the defendant and such agent at the time the agreement was executed that the word, “assured,” as used therein, was intended to apply to, and designate the persons insured by the original policies.</p>

<p>A debtor having sold and transferred property to his creditor in payment of a debt, such property cannot be seized on an execution against such debtor, merely because the debt so paid was usurious. After a voluntary payment of such a debt by the debtor, only the usurious excess can be recovered back, and that can only be done within a year after such payment, when the action is brought by such debtor or his personal representatives.</p> <p>A power of attorney which, by its terms, authorizes the attorney “ to buy and sell real estate and personal property, and to collect rents, money, and debts, and to do every act and thing necessarily pertaining thereto,” and given as the principal was about to leave the State temporarily, and accompanied with a deposit, by the principal, of $1,800 in money with the agent, does not authorize the agent to purchase a Merchant Tailor’s establishment, and give promissory notes, in the name of the principal, for the contract price.</p> <p>Accordingly, when such an agent, assuming to act in the name of his principal, made such a purchase, amounting to $4,123.16, and took a transfer of the property to his principal, and paid for it by cancelling a debt for $966, which the vendor owed to such agent, and by giving four notes for $189.29 each, in the name of his principal, at 3, 6, 9, and 12 months, the agent b.eing irresponsible, and not informing his principal of the fact of such purchase, and subsequently the property was seized on an execution against such vendor, and a suit was brought by such agent, in the name of his principal, against the Sheriff, for such taking of tire property, and the Judge at the trial charged the Jury that, the agent had authority, under such a power, to make such a purchase, and to agree to pay the contract price in instalments, and therefore could give notes in the name of his principal, and that such notes would be valid, and that, in so far as the validity of the transfer depended Upon the fact of there being a sufficient consideration to uphold it, the consideration in this case was sufficient, held, that the charge was erroneous, and that, on such a state of facts, there was no sufficient consideration to uphold the sale, as against the creditors of the vendor; and that the notes given by the attorney were not obligatory upon his principal.</p> <p>On the facts of this case, as established by the evidence given at the trial, it was also held, that the inference, that the purchase and sale were made, and immediately followed by an assignment, by the vendor, of all his property to such agent, with a view and with the intent, by means thereof, to effect a favorable compromise with the creditors of such vendor, and to speculate, out of such a result; and that the jury would have so found but for the erroneous instruction as to the sufficiency of the consideration, was a just one.</p> <p>Any evidence which is material to the issue, though given on the cross-examination of a witness, does not conclude the party cross-examining. The matters thus testified to are not to be treated as collateral matters, in respect to which a witness cannot be contradicted. It is error, to preclude a party from showing the truth of the case, in respect to such matters, notwithstanding the evidence sought to be contradicted was elicited by his cross-examination.</p> <p>Judgment reversed, and new trial ordered.</p>

<p>An existing valid cause of action, in favor of the plaintiff, against the defendant, is not discharged or waived by an offer of the plaintiff to permit the defendant “ to use ” the amount due to the plaintiff thereon, if it will enable the defendant “ to carry a trade through,” made between'the defendant and a third person, without other assistance from such third person, though such cause of action accrued and the amount, the use of which is so offered, is due, for services of the plaintiff, as* broker, in negotiating the trade alluded to in such offer.</p> <p>The acceptance of such offer by a letter which states in substance that, the defendant on consummating the trade, will keep back a part of the property in which, by the terms of the trade, payment by him to such third person was to be made, “ to supply any deficiency,” in connection with such offer, imports that the offer was an offer of the use of the amount, due from the defendant to the plaintiff, temporarily and not a gift or waiver of it, and that it was not made to induce the defendant to modify his contract with such person, and submit to terms to which he might not otherwise assent, on condition of being exonerated from such claim of the plaintiff.</p> <p>Judgment for plaintiff on the verdict.</p>

<p>A notice, given to the consignee of goods by the master of a vessel of her arrival, is not equivalent to a personal delivery of the goods, so as to entitle the master to demand the immediate payment of freight. The freight cannot be claimed until the goods have been unladen and a delivery has been made or tendered.</p> <p>The delivery of merchandize by the master of a vessel, and the payment of freight by the owner and consignee, are simultaneous and concurrent acts; so that the master is not bound to deliver the goods until the freight is paid or tendered, nor the owner to pay the freight until the goods are unladen and delivered, or the delivery is tendered.</p> <p>But the owner is not bound to accept a delivery and pay the freight, until he has had an opportunity to examine into the state and condition of the goods, and to ascertain their quantity, since he has a right to deduct any damage they may have received on the transportation not imputable to the perils of navigation, and any deficiency in quantity from the usual or stipulated freight. Hence, if the quantity and quality of the goods cannot be ascertained by an examination on board, it is the duty of the master to unlade them and place them in a situation in which the necessary examination may be had.</p> <p>Such is emphatically the duty of the master when the owner of the goods offers, at his own expense, to tranship the goods into a lighter for examination, and to continue the lien upon them during such examination.</p> <p>The contract of affreightment, in respect to each consignment, is entire, and the master has no right to divide it into lots or parcels and demand a pro raid or proportionate freight on each. No portion of the freight is demandable until the whole consignment has been delivered, or tendered for delivery.</p> <p>Seld, that as the charge of the Judge upon the trial, in effect denied the above propositions, the exceptions to it were well taken, and there must be a new trial, posts to abide event.</p>

<p>This action comes before the Court at General Term, on an appeal by the defendants from a judgment in favor of the plaintiff, entered upon the report of a referee.</p> <p>The plaintiff, before commencing this action, had recovered a judgment against a corporation, of which the defendants are stockholders; and this action is brought, to recover of the defendants, as such stockholders, the amount of such judgment, on the ground that they were such stockholders when the corporation contracted the debt, on which such judgment was recovered.</p> <p>The judgment was recovered upon two bills of exchange for $4,000 each, purporting to be drawn by the Vice-president and Agent of the Mexican Ocean Mail and Inland Company, upon the President of such Company, in favor of N. Davidson. Each bill was dated November 25th, 1853. Such judgment was entered against the Company on the 8th of June, 1854.</p> <p>The complaint avers, that before the maturity of the bills, the said corporation accepted the same in writing, and the payee endorsed the same to the plaintiff.</p> <p>That the said corporation did not pay the bills, and that on the 8th of July, 1854, the plaintiff recovered a judgment against the corporation on such bills for $8,889 55. That an execution was issued upon such judgment to the Sheriff of the County of New York, -and by him returned wholly unsatisfied.</p> <p>That the capital stock was one million five hundred thousand dollars, divided into fifteen thousand shares of one hundred dollars each. That such capital stock has never been paid in, nor has a certificate thereof been made and recorded,'according to the provisions of the act under which the Company was organized.</p> <p>That was the act of April 12th, 1852, entitled “An. act for the incorporation of companies formed to navigate the ocean by steamships.” That the defendants are the holders and owners of three hundred and seventy-five shares of the stock of such corporation. That the plaintiff had demanded payment of such judgment from them, which they had refused; and that by force of such statute they were liable to pay the amount, and interest with costs.</p> <p>The defendants, in their answer, after various general denials, admit that they are the holders and owners of three hundred and seventy-five shares of the capital stock of the Company; but they say that they did not become, and were not the holders and owners of such stock, or of any stock of the said Company, until after, and subsequent to the date of such bills of exchange, and until after the same had been accepted.</p> <p>The bills were each drawn at four months after sight, and were accepted on the 19th of December, 1853. The referee, to whom the action was referred, made a report containing a statement of his conclusions of fact and of law, which, exclusive of the articles of association therein set forth, reads as follows, viz.:—</p> <p>To the Justices of the Superior Court:</p> <p>“ I, the subscriber, to whom, by an order entered in the above entitled action, bearing date the 17th day of May, 1855, it was ordered that this action and the issues therein be referred, to hear and decide the same—</p> <p>“ Do respectfully report, that I have.been attended on the said reference by the counsel for the respective parties above named, and have heard and duly considered their respective allegations and proofs.</p> <p>“ And I further certify that I find as facts from the evidence before me on the trial of said action—</p> <p>“ 1. That on the 8th day of January, 1853, Elihu Townsend, Robert G. Rankin, Otis P. Jewett, James Speyers, Simeon Draper, Albert C. Ramsay, and Gustavos A. Sacchi, made, signed, and acknowledged, before Alexander P. Sharp, a commissioner of deeds in and for the city and county of Hew York, a certificate in writing under an act of the legislature of the State of Hew York, entitled, ‘ An. act for incorporation of companies formed to navigate the ocean by steamships,’ passed April 12th, 1852, and that said certificate is in the words following, viz.:</p> <p>“1 Articles of association made and entered into in duplicate this first day of January, one thousand eight hundred and fifty-three, by and between the persons whose names are hereunto subscribed, certify, &c., &c.’</p> <p>“ 2. That said certificate in writing was filed in .the office of the Clerk of the County of New York, on the 8th day of January, 1858, and that a duplicate of said certificate was filed in the office of the Secretary of State, of the State of New York, on the 25th day of'January, 1853.</p> <p>“ 3. That Robert G. Rankin was the President of said Company from January 10th, 1853, to January 1, 1855, that Albert C. Ramsay was the Vice-President of said Company during the same period, and that the principal office or place of business of said Company was, during the same time, in the city of New York.</p> <p>“ 4. That on the 25th. day of November, 1853, the said Albert C. Ramsey drew a bill of exchange in writing, in the words and figures following, viz.:—</p> <p>“ Mexico, November 25, 1853. For $4000.</p> <p>“At four months after sight, pay this second exchange (first and third not paid) to the order of N. Davidson, Esq., four thousand dollars value in account, which please to account this office as advised.</p> <p>Albert C. Ramsey,</p> <p>Vice-President</p> <p>and Agent.</p> <p>To Robert G. Rankin, Esq.,</p> <p>President of the Mexican Ocean Mail and Inland Co.,</p> <p>New York City.</p> <p>“ The said bill was endorsed on the 2d day of December, 1853, by N. Davidson, the payee named therein, and was accepted in writing by said Company, on the 19th day of December, 1853.</p> <p>“ 5. That on the 25th day of November, 1853, the said Albert C. Ramsey drew another bill of exchange in writing, in the words and figures following, viz.:—</p> <p>“ Mexico, November 25th, 1853. For $4000.</p> <p>" At four months after sight, pay this second of Exchange (first and third not paid) to the order of N. Davidson, Esq., four thousand dollars value in account, which please to account this office as advised.</p> <p>Albert C. Ramsey,</p> <p>Vice-President</p> <p>and Agent.</p> <p>“ To Robert C. Rankin, Esq.,</p> <p>President of the Mexican Ocean Mail and Inland Co.,</p> <p>New York City.</p> <p>“ The said bill was endorsed on the 2nd day of December, 1853, by N. Davidson, the payee named therein, and was accepted in writing by said Company on the 19th day of December, 1853.</p> <p>“ 6. That neither of said bills have been paid by said Company.</p> <p>“ 7. That on the 8th day of June, 1854, the plaintiff in this action recovered a judgment in the Superior Court of the city of New York against the said The Mexican Ocean Mail and Inland Company, as the acceptors of said bills of exchange, for the sum of $8,889,55 damages and costs; that on the same day an execution was issued on said judgment by said plaintiff, against said Company, addressed to the Sheriff of the City and County of New York, and that said execution was returned by said Sheriff wholly unsatisfied on the 9th day of June, 1854.</p> <p>“ 8. That the capital stock of said Company has never been paid in, nor has a certificate thereof been made and recorded as prescribed in said acts, passed April 12th, 1852.</p> <p>“ 9. That the defendants in this action, at the time of the acceptance of said bills of exchange, on the 19th day of December, 1853, were the equitable owners of three hundred and seventy-five shares of the capital stock of said Company, of the nominal value of one hundred dollars for each share; that on the 2d day of February, 1854, the said defendants became the holders of said three hundred and seventy-five shares of capital stock, and were thereafter, and until the commencement of this action, holders and owners of said shares.</p> <p>“ And I further certify and report as conclusions of law, from the above facts, and decide;</p> <p>“1. That the plaintiff is entitled to judgment against the said defendants for the sum of ($9,311 26) nine thousand three hundred and eleven dollars and twenty-six cents.</p> <p>“ 2. That the plaintiff is entitled to recover the costs of this action.</p> <p>“All which is respectfully submitted.</p> <p>“New York, April 22d, 1856.</p> <p>“Geo. N. Titus, Referee.”</p> <p>The articles of association are omitted, as all the provisions deemed material are recited in the opinion of the Court. Exceptions to the decisions of the referee were duly filed. The case was submitted, by the counsel of the parties, upon printed points, and the points relied on are sufficiently stated in the opinion of the Court.</p>

<p>A promissory note was by its terms made payable to the makers’ own order, but they omitted to endorse it. It was delivered by the makers, as a premium note upon an open policy, to a Marine Insurance Company. That Company was authorized “to negotiate premium notes for the purpose of paying claims or otherwise, in the regular transaction of its business.” They delivered the note in suit, with others, to the plaintiffs, and had them discounted, and received the proceeds. A smai amount of risks compared with the amount of the note had been taken and premiums earned. The note was to cover premiums to be earned. There was no evidence as to the application of the proceeds of the note, by the Insurance Company.</p> <p>Meld, that the note was so negotiated by the makers, by its delivery to the Company, as to make it the same in legal effect as if payable to bearer, within the statute (1 E. S. 768, § 6.)</p> <p>Meld, that the plaintiffs were bond fide holders of the note, getting it from a Company authorized in certain cases to negotiate it, and had a right to the presumption that it was discounted for an authorized purpose.</p> <p>Meld, that the plaintiffs were entitled to recover the whole amount, whatever might be the equities or rights between the makers and the Insurance Company.</p>

This action comes before the Court, at General Term, on an appeal by the plaintiff from an order made by Mr. Justice Hoffmann, in November, 1856, at Special Term, overruling a demurrer to a separate defence in the answer. The complaint set forth two contracts in writing, signed by the defendant, by each of which he agreed to sell and deliver to the plaintiff 500 barrels of new mess pork, in all the month of September, 1856, at the price of $17 per barrel.

This action was brought to compel the specific execution of a contract relative to the purchase and conveyance of real estate. The contract is set forth in the complaint, and admitted in the answer, and the defendant, as purchaser, refused to perform it, on the ground that a good title could not be given by the plaintiffs. The cause was referred to Murray Hoffman, Jun., to take the testimony and report the same, with his opinion thereon.

This action comes before the Court, at General Term, on an appeal by the plaintiffs from an order made on the 9th of March, 1857, by Mr. Justice Hoffman, dissolving a temporary injunction, and denying a motion for its continuance pendente lite. The following are the material facts of the case, as collected from the pleadings and the affidavits of the parties.

<p>A bank check, in the hands of the drawer, paid by him, is not evidence, per se, of a debt due to him from the payee; but when it is shown that the Check was in fact lent to the payee, it may be read in evidence to prove the amount of the loan. A draft, in the hands of an acceptor, and paid by him, is not evidence of a debt due to him from the drawer; but on the contrary, the presumption of law is, that the draft was drawn against funds of the drawer, then in his hands. In order to charge the drawer of a bank check, it is not necessary to show presentment for payment and refusal, if it is proved that, at the time, he had no funds in the bank upon which the check was drawn. When an account has been rendered to a defendant which, on the trial, he refuses to produce, and which, it appears, was transcribed from the ledger of the plaintiffs, the account in the ledger is good secondary evidence. But when no reason is shown for not producing the ledger, a copy of the account taken from the ledger cannot be received, as it is plainly not the best secondary evidence which, the plaintiffs had it in their power, to give. The American eases have established that there are grades in secondary evidence, and the true rule deducible from them is, Undoubtedly, that laid down by Mr. GreenIieae; namely, “That, if from the nature of the case itself it is manifest that a more satisfactory kind of secondary evidence exists the parly will be required to produce it, but when the nature of the case does not disclose the existence of such better evidence, the objector must prove its existence, and must also prove that it was known to the other party in season to have been produced on the trial.”</p> <p>The referee in this cause, overruling the objection of the counsel for the defendant, had admitted in evidence a copy of an account, taken from a ledger, admitted to be in the possession of the plaintiffs, as proof of the contents of an account which, it was alleged, had been rendered to the defendant.</p> <p>&élct¡ that the evidence ought not to have been received, and that, for this error, the judgment upon the report of the referee must be reversed, and a new trial ordered. Costs to abide event.</p>

This action came before the Court at General Term, on an appeal by the defendants, from a judgment in favor of the plaintiffs, and from an order denying a motion for a new trial. It was put at issue prior to the Code, and the pleadings are drawn under the pre-existing practice. The complaint contains the common money counts, and two special counts.

This action comes before the General Term on an appeal by the defendant, Cranston, from a judgment or order made therein, dated October 11, 1856, upon a trial of the action which was had in January , 1856, before Mr. Justice Slossoh, without a Jury. It was commenced on or about the 24th of May, 1855, by Edmund Griffin, as plaintiff, against Curtis Judson, Hiram Cranston, and George Slater, as defendants.

This action comes before the Court, on a verdict for the plaintiff, subject to the opinion of the Court, at General Term.

<p>When two persons are made defendants, and sued as joint makers of a promissory-note, and they answer separately, and one of them pleads infancy as his sole defence, they thenceforth cease to be “united in interest,” within the meaning of those words as used in § 306 of the Code.. In such a case, the Judge at the trial, on the fact of infancy being proved, may, in his discretion, permit the plaintiff to discontinue the action, as against such infant, without costs.</p> <p>Held, that such permission was properly given in this action. The judgment and order appealed from affirmed with costs.</p>

This action comes before the Court at General Term, appeal by the defendant from a judgment in favor of the tiff, entered on the verdict of a jury. This action was brought to recover the amount of two promissory notes made by the defendant, payable to the order of Stebbins, Garabrant & Co., and endorsed by the payees to the plaintiffs. It was tried before Mr. Justice Slosson and a jury, in February, 1857.

This action comes before the Court, at General Term, on a motion, by the defendants, for a new trial, on questions of law, arising upon exceptions taken at the trial, and there ordered to be heard in the first instance at the General Term, and the entry of judgment to be, in the mean time, suspended; (the plaintiff having recovered a verdict for $5-865 28).

This action comes before the Court at General Term, on an appeal, by the defendant, from a judgment rendered against Mm at Special Term. It is an action for an escape. On the seventh of June, 1853, the plaintiffs in this action commenced a suit in this Court against Hubbard and Barton, and obtained an order for their arrest, directed to the defendant, as sheriff, and, as appears by the defendant’s official certificate, they were, on the same day, arrested.

<p>A guaranty, before the Code, was assignable, so as to give an equitable title to the assignee, although he could not sue thereon in his own name; but, under the Code, it is not merely assignable, but the action thereon must be brought in the name of the assignee, as the real party in interest.</p> <p>There is no presumption and no rule of law that can warrant a Court or jury to infer, from the mere fact that the body of an instrument or endorsement is not in the hand-writing of the signer, that it has been altered, or that it did not appear in the same form when the signature was made.</p> <p>"When circumstances of suspicion are proved, the party claiming under the paper may, properly, be required to satisfy a jury that it was signed in the form in which it appears; but in all other cases, the plaintiff is bound to prove the signature alone, which is prima, facie evidence that the defendant contracted the obligation that the paper imports.</p> <p>Judgment for plaintift, upon verdict, with costs.</p>

This action comes before the Court, at General Term, upon a verdict for the plaintiff, taken, subject to the opinion of the Court at General Term, upon the questions of law raised on the trial,, and… Held: that there was no evidence in the case showing that such care and prudence were exercised. Upon the last trial, such evidence was introduced.

This action was brought against Frederick Gr. Richardson and David Woods, as defendants, and comes before the Court, on an appeal, from a judgment in favor of the plaintiff, taken by the defendant; Richardson only. It was tried before Mr. Justice Campbell and a jury in October, 1855.

This is an appeal by the defendant, Patrick, from a judgment entered upon a verdict, in favor of the plaintiff, against him, for the sum of $1013 48. The defendant, Tarratt, had a verdict in his favor, and recovered costs.

This action is brought by R. S. Williams, as President of the Market Bank, against E. W. Townsend and George Williams, as makers of one note and endorsers of another, and against James B. Townsend, as endorser of the first note and maker of the last. It was tried on the 18th of March, 1857, before Chief Justice Oakley and a jury, and comes before the General Term on a verdict taken subject to the opinion of the Court.

This action comes before the Court at General Term, on an appeal by the plaintiff from a judgment in favor of the defendant, entered on the report of a referee, dismissing the plaintiff’s complaint. The complaint herein avers that the plaintiff sold and delivered to the defendant at his request the goods mentioned in an account annexed to the complaint.

W. L. Whiting, M. T. C. Kimball and D. J. Whiting, copartners, bring this action as plaintiffs against Pierson M. Otis, defendant, to recover damages, sustained by reason of the defendant’s falsely and fraudulently representing one John Tripp of Syracuse, to be worthy of credit, on which representations the plaintiffs relied and sold him goods. The action was commenced in March, 1856, and tried in December, 1856, before Mr. Justice Slossoh, and a jury.

Oh the trial of this action, a verdict was ordered for the plaintiff, subject to the opinion of the Court, at General Term. It was tried before Chief Justice Oaklet and a jury, in March, 1857. The action is brought upon three several promissory notes made by the defendant, payable to the order of Whitlock, Freneau, Anderson, & Co., and dated May 13th, 1856.

The questions which arose on the trial of this action, being questions of law only, a verdict was taken for the plaintiff subject to the opinion of the Court, and such questions were then directed to be heard at the General Term, in the first instance. The counsel of the parties agreed at the trial, such agreement being evidenced by an order then entered, that, the Court at General Term might dismiss the complaint, if so advised.

Case upon a verdict for the plaintiffs, taken subject to the opinion of the Court at General Term. This action was tried before Oh. J. Oakley and a jury, in December, 1856. It was brought to recover a quarter’s rent of certain rooms in a building belonging to the plaintiffs. It was alleged that the defendants had leased the rooms for one year, at the rent of $2,500.

This action comes before the General Term, on appeal by the defendant from the judgment. It was tried before Mr. Justice Bosworth and a jury, in June, 1856, when a verdict was rendered for the plaintiff for $500 damages. The complaint states two causes of action: 1. As assignee of Wm. 0.

This action comes before the Court, at General Term, on a verdict taken for the plaintiff, subject to the opinion of the Court. The plaintiff is Adolph Geffcken, and the defendants are William J. Slingerland and Luther W. McFarland, composing the firm of “ Slingerland & McFarland.” The action was tried before Ch. J. Oakley and a jury in April, 1856.

<p>A Receiver, under supplementary proceedings, as a general rule, has no right to take possession of and sell the goods and chattels of the debtor which he knows are covered by a prior mortgage, unless he can show that, as against the judgment-creditor, the mortgage was fraudulent and void.</p> <p>If, by the terms of the mortgage, the debtor has a temporary right of possession, the Receiver, if authorized to sell at all, must limit the sale to such temporary right, and is bound to declare, that it is made subject to the mortgage.</p> <p>Nor has he any right, in such a case, to sell the mortgaged property in parcels, but is bound to sell the whole together, so as to enable the mortgagee to follow it in the hands of the purchaser.</p> <p>Where the Receiver makes the sale unlawfully, he is liable to the mortgagee for the amount of the mortgage debt and interest, provided such was the value of the mortgaged property; and in case he acts with the knowledge and by the direction of the plaintiff in the suit in which he was appointed, such plaintiff is equally liable. It is doubtful whether a Receiver can sell mortgaged properly at all, unless by an express order of the Court appointing him.</p> <p>When mortgaged goods are unlawfully sold by a Receiver, a purchaser who has no knowledge, actual or constructive, of the mortgage, as a hondfide purchaser is not liable to the mortgagee. See note f, post, p. 467.</p> <p>Judgment against defendants Monaghan and Cavanagh. Complaint dismissed as to the defendant Gosling.</p>

This action, comes before the Court, at General Term, on a verdict for the plaintiff, taken subject to the opinion of the Court, on a question of law, arising at the trial, and there directed to be heard at the General Term, in the first instance. It was tried before Mr. Justice Bosworth and a jury, on the 6th of November, 1856.

This action comes before the Court at General Term, pursuant to an order made at the trial thereof, that, the questions there arising, being questions of law, should be heard in the first instance, at the General Term, and the entry of judgment, in the mean time, be suspended. It was tried in June, 1856, before Mr. Justice Bosworth, and a jury.

This action, comes before the Court, at General Term, upon a verdict for the plaintiff, subject to the opinion of the Court; the only questions arising at the trial, being questions of law, they were there ordered to be heard, in the first instance, at the General Term.

<p>When an agent has a general authority to sell goods, entrusted to him by the owner, or is held out to the world by his principal as possessing that authority, a sale made by him to an innocent purchaser, although in violation of his duty, and of his secret instructions, cannot be impeached. But the mere possession of goods, by a factor or commission merchant, is not evidence to the world that he has an unlimited authority to sell them, so as to preclude the owner from impeaching a sale made by him, by showing that the goods were entrusted to him " for a wholly different purpose.</p> <p>It is true, there are some dicta that support this proposition, and that have led to its adoption by some of the text writers; but there is no express adjudication, and the cases relied on as justifying it, when carefully examined, are found to lead to an opposite conclusion.</p> <p>A sale made by a factor or agent not entrusted with the documentary evidence of title, or with the goods themselves for the purpose of sale, is not rendered valid by the provisions of the Factors’ Act. On the contrary, the 6th section of the act, by a necessary implication, declares such a sale to be void.</p>

The questions, discussed and decided in this action, arise on a verdict taken, subject to the. opinion of the Court at General Term. The action was brought to recover a loss under a policy of insurance against fire, and the following are the material facts, as proved upon the trial, before Oakley, Ch. Justice, and a iurv, in March, 1857.

The questions, decided in this action, arise on a verdict for the plaintiff, taken, subject to the opinion of the Court at General Term, on the exceptions taken on the trial. The action was brought to recover a total loss, under a policy of insurance against fire issued by the defendants, and dated the 3d of March, 1853.

The defendants appeal from a judgment rendered against them on the trial of the action, by the Court, without a Jury. This action was brought, to recover the possession of seven family portraits, and of another painting, which, the plaintiff alleges, his paternal grandmother sold, and conveyed to him, by a written transfer, signed, and acknowledged by her, and in these words, viz.: . State of Massachusetts, Watertown.

<p>When, hy an ordinance of the Corporation of the City of Hew York a pier is directed ' to be built or extended, the payment, by the Corporation of one-third of the expense is, under the statute, a condition precedent to the acquisition by the Corporation of a right to receive half of the wharfage, and the burthen of proving the payment rests upon the Corporation. The statute does not contemplate that the Corporation shall pay one-third of the expense in advance of the improvement, but it does require that its election, to make such payment, shall be made before the work is begun, and that the payment shall be made within a reasonable time after the work is completed. Hence, if the whole expense of the improvement has been borne by private owners who, for years, have received the whole wharf-age, the Corporation cannot, by offering to pay one-third of the original expense and interest, place itself in the same position, and acquire the same rights, as if such payment had been made in due season. Its right, by making the payment, to acquire a share of the wharfage, is extinguished.</p> <p>When the private owners of a pier have an exclusive right to the wharfage, the Corporation cannot legally deprive them of this right, by appropriating the slip, adjoining the pier, to the purposes of a public ferry.</p> <p>If such a power may be exercised by the Corporation, it can be so only upon the payment to the owners of a just compensation.</p> <p>Judgment for plaintiff affirmed with costs.</p>

Case upon a general verdict for the plaintiff, subject to the opinion of the Court on the questions of law arising at the trial, and there ordered to be heard, in the first instance, at the General Term. The following is a statement of the pleadings, and of the proceedings had, and facts proved upon the trial. The complaint is of a somewhat equivocal character.

This action comes before the Court, on an appeal by the defendants from the whole judgment, and by the plaintiff, from a part of the judgment. Held: before Duer, Bosworth, and Slosson, J. J. No answers were interposed, pursuant to the liberty so given.

This action comes before the Court on an appeal by the plaintiffs from a judgment in favor of the defendants. The only questions presented by the appeal relate to decisions of the Court at the trial, permitting the defendants Smith & O'Hara to be examined as witnesses in their own behalf. The action was tried in October, 1856, before Bosworth, J., without a jury.

<p>There is no authority in the provisions of the Code concerning the examination of a party as a witness, at the instance of the adverse party, for an order directing the party sought to be examined to appear before a referee and submit to be examined before such referee.</p> <p>Semble. If the examination is to be as of a witness examined conditionally, a summons must be issued to compel the attendance of the party whose examination is sought. An order is only necessary to show the existence of facts giving a right to so examine, and to authenticate the proceedings. The witness does not attend in obedience to the order, but in obedience to the summons. If the examination is had before, instead of taking it at the trial, no order is necessary. A notice to the party, and that alone, is necessary to give the right to examine, and a summons is necessary to compel attendance and lay the foundation for ulterior proceedings, in case of non-attendance in obedience to it.</p> <p>It is not obvious that any order for the conditional examination of a party asa witness can, properly, specify and limit the matters to which he is to be examined. He is to be examined generally the same as any other witness, and the points to which he may be examined are to be determined by the officer before whom the examination is had, or at the trial when the testimony is offered in evidence. Whether, when in an action against husband and wife, the complaint states as a cause of action, facts which, if proved, will entitle the plaintiff to a judgment against the husband personally, and he has not been served with the summons, nor appeared in the action, and the means provided by law for compelling his appearance have not been exhausted, the wife can be proceeded against at all, or whether she can appear by an attorney employed by her, without a previous order of the Court for that purpose, or whether she can be compelled to be examined at all to establish the allegations in such a complaint, when proof of part of the allegations requisite to be proved, to charge her sepárate estate, if she have any, will subject the husband tp a judgment for. the amount sought to be collected from her property, gutzre?</p>

This is an appeal from an order, made at Special Term, denying the plaintiffs’ application to overrule the decision of the clerk, who refused to allow the plaintiffs (who had obtained a judgment for the relief played for by their complaint), a per centage, or extra allowance, under § 308 of the Code, as amended by Chapter 723 of the Laws of 1857. The action was tried after that section, as thus amended, took effect.' The facts are fully stated in the opinion of the Court.

<p>This is an appeal, by the defendant Joyce, from an order denying a motion, made by him (after trial and judgment), to open the case so far as to permit him to make proof of a claim which he omitted to prove at the trial.</p> <p>The nature of the controversy, and the facts and circumstances under which the order, appealed from, was made, are fully stated, in the opinion of the Court.</p> <p>Andrew Benedict, for certain defendants who had established their claims on the trial.</p>

This action comes before the Court at General Term, on an appeal by the defendant Moultrie, from an order made by Mr. Justice Hoffman on the 24th of October, 1857. The complaint states as a cause of action, that the defendants made their joint note, payable to their own order fifteen days from the 6th of October, 1856, for $1,000, and endorsed and delivered.it to the plaintiff, and that they have paid only $300 on account of it.

The defendant moves to vacate an order of arrest, by virtue of which, he is now held in custody. It was granted on the 10th of October, 1857. An amended answer to the complaint was put in, on the 12th of December. The original summons is entitled in the Supreme Court. The copy served is not produced, and how that was entitled does not appear. The notice of motion does not point out this irregularity.

<p>When two persons are named as defendants in a summons and'complaint,' and only one is served, and judgment is thereupon perfected against him, there is, then, no action pending against the other, until he is served with the summons.' "</p> <p>If he is-servedwith it, after judgment against the other, and intermediate those periods, the title to -the cause of action becomes vested.in a third person, the latter cannot, under § 121 of the Code, be substituted, as -plaintiff in'the -action against the defendant last served.</p>

Each party moves to correct the clerk’s adjustment of costs.

The plaintiff brought this action to recover money, for goods sold and for services rendered, claiming over $50. The defendant, by his answer, denied that the goods and services were of the value alleged in the complaint. The verdict was for $30, in favor of the plaintiff. The defendant claims costs. The plaintiff resists the claim, and demands that the clerk insert in the judgment the amount of plaintiff’s disbursements.

This action comes before the Court on an appeal by the defendants, from an order made on the 9th of October, 1858, by Mr. Justice Hoffman, in five several actions in this Court, denying a motion made by them to discharge attachments, that had been issued against the property of the defendant, Wilson, on the ground that he was then a resident of Korwalk, in the State of Connecticut.

This is an appeal, by the defendant, from an order made by Mr. Justice Hoffmah (in proceedings supplementary to execution), on the 16th of December, 1857, appointing a receiver of the property of the defendant.