Volume 1 — Daly's New York Common Pleas Reports

Appeal by defendant from a judgment of the Marine Court at General Term. The action was brought to recover sixty dollars for help furnished the captain of the schooner J. T, Johnson. The action was against the owners of the vessel, all of whom were included as parties defendant, but only the-defendant Xichols was served with process, and plaintiff: endeavored to recover against him as one of the owners.

. Appeal from an order granted, on motion, at Special Term, requiring the plaintiffs to file security for costs within twenty days. The affidavits on both sides, read on the motion, show ' that Henry H. Eoherti, one of the plaintiffs, and husband of the other plaintiff, was not in this State at the commencement of the action, and had not been in this State for more than two years.

Appbaj. by plaintiff from, an order made by Jitdge Hilton at Special Term, granting a new trial. The action was brought by the plaintiff, who is the wife of William C. Wehrkamp, against the defendant as sheriff, for taking certain personal property, claimed by her to he her separate estate, under a judgment and execution against her husband. The plaintiff was a witness in her own behalf, and the principal one to prove the property to he her separate estate.

<p>Appeal by defendants from a judgment entered against them at Special Term in favor of the plaintiff.</p> <p>This was an action brought by the plaintiff, as assignee of August Janson, to recover the loss by fire of certain property insured by the defendant.</p> <p>The policy was dated the 13th of ¡November, 1S57, and for S70 premium insured Janson against loss or damage by fire to §2,000—§1,800 on his stock as a cabinet-maker, and §200 on tools and benches, contained in the five-story brick building, with tin roof, in the rear of 195 and 197 Chrysíie-síreet, ¡New* York. •</p> <p>On the night of the 21st of January, 1S5S, the buildings were totally destroyed by fire. The loss was §0,170 54, of which §"7,612 84 was on the stock, and §1,558 on the tools. The policy contained this clause, specially written upon the lace of the policy, at the time the policy was issued:</p> <p>“ Privilege for $4,500 additional insurance.”</p> <p>There was exactly this amount of additional insurance, namely: 2,000 in the Hamilton Eire Insurance Company; $2,000 in the New York and Erie Insurance Company; $500 in the Tradesmen’s Insurance Company.</p> <p>In the body of the policy the following provision was printed: “ And provided further, that in case the assured shall have already made any other insurance against loss by fire on the property hereby insured, not notified to this corporation, mentioned in or indorsed upon this policy, then this insurance shall be void and -of no effect. And if said insured, or his assigns, shall hereafter make any other insurance upon the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, tins policy shall cease, and be of no further effect.”</p> <p>The cause was tried before Judge Daly and a jury on the 16th and 17th of December, 1S5S, and a verdict rendered for •the plaintiff for $2,095 67.</p> <p>1. Tiie exception of the appellant to the ruling of the Court in refusing to allow the appellant to show that the respondent had effected insurance with other companies without notice, was well taken. (1.) The words in the policy, “ Privilege for $4,500 additional insurance,” have no effect to dispense with the necessity of giving such notice, They merely bind the company not to object, after notice, to the additional insurance on account of its coming up to that sum. Westlake v. St. Lawrence Co. M. Ins. Co., 14 Barb. 206; Burt v. People's M. Fire Ins. Co., 2 Gray (Mass.), 397 ;.Forbes v. Agauam M. F. Ins. Co.,.9 Cush. (Mass.), 470; Worcester Bank v. Hartford F. Ins. Co., 11 Cush. (Mass.), 265 ; Mellen v. The Hamilton Fire Ins. Co., 17 N. Y. (3 Smith), 609; McEwen v. Montgomery Co. M. Ins. Co., 5 Hill, 104; Potter v. The Ontario Mutual Ins. Co., 5 Hill, 147.</p> <p>II. The Court should have nonsuited the respondents (1.) The description of the building in the policy was a warranty that the building should conform to the description, and every warranty is a condition precedent to the plaintiff’s right of recovery. Blair v. Loparts, 1 Doug. 11; Pawson v. Watson, 2 Cowp. 785; Craig v. U. S. Ins. Co., 1 Peters’ Cir. Ct. Rep. 416; Juhel v. Church, 2 John. Cases, 333; Ogden v. Ash, 1 Dall. 162; Fowler v. Etna Ins. Co., 6 Cow. 673 ; Kennedy v. St. Lawrence Co. Mutual Ins. Co., 10 Barb. 285; Wilson v. Herkimer Co. Mut. Ins. Co., 2 Selden, 53; Mead v. Northwestern Ins. Co., 3 Selden, 530; Sillere v. Thornton, 26 Eng. Law and Eq. R. 238. (2.) The concealment of the facts that the respondent occupied the cellar of the building for the storage of his goods was the concealment of a fact material to the risk, and vitiated the policy. Stebbins v. Globe Ins. Co., 2 Hall, 632 ; Carpenter v. American Ins. Co., 1 Story, 57; Dennison v. Thomaston M. Ins. Co., 2 App. 125 ; Ingraham v. S. Carolina Ins. Co., 3 Brevard, 523; Chitty on Contracts, 683. (3.) Even if it could be assumed as a fact, that the surveyor of the company knew of the existence of the cellar, and knew that it was occupied for the storage of inflammable materials, it could .not «change the case, because the description of the building in the policy is a warranty ; and notice to an agent of the insurer, or even to the insurers themselves, could not relieve the insured from the obligations of the warranty. Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285; Lee v. Howard Ins. Co., 3 Gray (Mass.), 583; Jennings v. Chenango Co. M. Ins. Co., 2 Denio, 75 ; Wall v. East River Ins. Co., 3 Duer, 264.</p> <p>III. The Court erred in admitting evidence of the acts and declarations of "Wilcox. "Where there is a warranty, paroi evidence is inadmissible to affect the warranty. The rule which prevails upon sales of property—that a warranty does not extend to defects which are known to the purchaser—docs not apply to warranties in contracts of insurance. Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285 ; Jennings v. Chenango Ins. Co., 2 Denio, 75; Wall v. East River Ins. Co., 3 Duer, 264; Lee v. Howard Ins. Co., 3 Gray (Mass.), 583.</p> <p>I. There was no misdescription of the premises. (1.) The term “ story ” is not applied to a cellar. “ In the United States, the floor next the ground is the first story. In France “and England, the first floor or story is the second from the “ground.” (Webster’s Dictionary, word “Story.”) (2.) The surveyor of the defendants went through the building prior to the policy being issued ; they afterwards furnished the policy containing the description objected to. They cannot take advantage of their own act to avoid the policy.</p> <p>II. The acts and declarations of Wilcox were properly admitted in evidence. (1.) They were part of the res gestee. (2.) They were all prior to the delivery of the policy by him to Janson, on behalf of the defendants, and.while he was acting as their agent. (3.) The admission of the testimony could do no legal injury, and even if it were erroneously admitted, the exception would be disregarded. Shorter v. The People, 2 N. Y. 193.</p> <p>III. The “ privilege" granted by the defendant to the insured ’■for $4,500 additional, insurance,” was a vfaiver of that condition of the policy, that if the assured made any other insurance upon the same property without notice thereof to defendant, &c., the policy should be of no effect. In the construction of a policy of insurance, the written part is to prevail over the printed. Delinguemare v. The Tradesmen's Ins. Co., 2 Hall, 622 ; Harper v. The Albany Mut. Ins. Co., 17 N. Y. 194; Mellen v. Hamilton Fire Insurance Co., 17 N. Y. 609.</p>

<p>Wlicre in a policy of insurance, although “a time policy,” a geographical track is declared, and the insured is specifically prohibited from entering certain ports—Held, that a voluntary voyage to any such prohibited port amounted to a breach of the warranty of the insured not to enter such ports, and that from that time the policy ceased to cover or protect the vessel.</p> <p>Held farther, that a permission to use one of the prohibited ports, indorsed on the policy, did not abrogate the warranty in the policy “ not to use foreign ports or places in the Gulf of Mexico.”</p> <p>EM further, that the subsequent return of the vessel in safety in no way revived or restored the original obligation of the insurers, and no action can he maintained for her loss after such deviation.</p>

<p>Apartyls not concluded by everything he may have said or done, even under oath. The doctrine of estoppel is confined within just and rational limits. and a party is not estopped unless he has gained some benefit or advantage by the act which is relied upon as an estoppel, or unless, by that act, the party claiming the benefit of the estoppel was induced to alter his condition.</p> <p>Thus, where the plaintiff filed notice of an ineffectual mechanic’s lien, wherein he swore that the contract was made with the contractor—Held, that in an action against the owner, tire plaintiff was not estopped from showing that such contract was in reality made with the.defendant, as owner.</p> <p>The record of a dismissal of the complaint between the same parties in another court, for the purpose of proving a former adjudication, is inaclmissible in evidence, unless it is shown that such dismissal was a judicial determination of the same point in controversy here.</p> <p>To entitle a written contract between one of the parties and a third nerson to be aanintud m evidence, its pertinenev must be first drown.</p> <p>The defendant on the trial testified that he had had no other conversation with the plaintiff, than that sworn to by him. He then put in evidence a certain mechanics’ lien proceeding, and rested. The plaintiff was recalled, ancl testified that he had had another conversation than that testified to by the defendant; and then detailed such conversation relative to the mechanics’ lien proceeding. The defendant offered himself as a witness to contradict the plaintiff’s version of such conversation, which offer tire justice refused. Eeld, error! The testimony proposed by the defendant was not to contradict his own previous testimony, but to obviate the effect of plaintiff’s testimony as to the lien proceeding.</p> <p>A contractor failed to complete his contract, and the owner was compelled to complete the building. In an action by a sub-contractor against the owner for work and materials, for which a lien had been filed—Eeld, that the defendant might prove on the trial what it had actually cost him to complcte the building, for the purpose of showing that nothing was due to the contractor, and, consequently, nothing due to the plaintiff, as sub-contractor.</p>

<p>Appeal by defendant from a judgment of the Marine Court at General Term.</p> <p>The defendant, who was the proprietor of the Gaiety Theatre, at New Orleans, wrote to the plaintiffs from Louisville, Ky., ordering them to print, frame, and glaze a certain number of cards, and directed that they should be dispatched by the earliest express to him at New Orleans, adding, “ I will either send yon back the amount by return of post, or the express may collect the same for you, at your option ■ the defendant to be advised of the departure of the cards by letter.</p> <p>The plaintiffs delivered the cards to Adams 'Express Company, with a hill, and directions to collect the bill on delivery. The direction on the goods was, “ Dion Bourcicault, Gaiety Theatre, New Orleans, La.—O. 0. D.” The goods were sent by the steamer Crescent City, Dec. 3, 1855; the steamer was lost at sea; the defendant never received the cards.</p> <p>The plaintiffs testified on the trial that they complied with the direction of the order by writing to the defendant; enclosing their bill.</p> <p>Defendant testified that he never received such letter or bill. Defendant’s counsel asked the Court to decide that the plaintiffs were not entitled to recover—1st. Because they had not, in point of time, complied with the direction of the order, but had taken too much time in the execution of the order. 2d. Because the goods, at the time of their loss on the Orescent City, were at the risk of plaintiffs—were their property, and had never been delivered to the defendant, so as to place them at his risk, and the goods delivered, having been lost before such a delivery to the defendant, and whilst they were at the-risk of and the property of the plaintiffs, the loss was the plaintiffs’, and they were not entitled to recover anything on account thereof from the defendant.</p> <p>The Court refused so to decide, but rendered judgment for the plaintiffs for £172.59, to which decision the defendant excepted.</p> <p>I. The delivery to the Express Company of the goods, and a bill with directions no; to deliver to the defendant until payment of the bill, did not pass the title, but the goods remained the property of and at the risk of the plaintiffs ; the Express Company were the agents of the plaintiffs, and not of the defendant. In People v. Haynes (14 Wend. 546), the carrier had been designated by the purchaser, and there was no appointment of the carrier, the agent of the seller, or direction to the carrier not to deliver until the hill was paid ; and the purchaser was personally present, and received and accepted the goods. These are vital distinctions, and in that case, the Chancellor laid down the position that the seller, having the right of stoppage in transitu, could have reinvested themselves with the title to the goods by a notice to the carrier ; it follows, plainly, that the notice given in this case, at the time of delivery, to the carrier would have a similar effect. See Newcomb v. Cramer, 9 Barb. 402 ; and Jones v. Bradner, 10 Barb. 193 ; Story on Sales, § 223 to § 23S, §§ 302, 303, and § 315.</p> <p>II. Independent of the last point, the title would not pass until a bill was sent by letter to the defendant, that being one of the express conditions of the order.</p> <p>I. The action is not for goods sold and delivered, but for labor and materials furnished. The plaintiffs were employed to perform the labor of printing the cards, they furnishing the requisite materials,—of packing them,—and of putting them on board the Express. On proof that these services were fully performed, they were entitled to recover as for labor and materials. Sewall v. Fitch, 8 Cow. 215 ; Robertson v. Vaughn, 5 Sandf. 1; and see Bronson v. Wiman, 10 Barb. 406, aff’d 4 Seld. 182; Crookshank v. Burrell, 18 Johns. 58. And although in such case, if there is a tender of the goods to the defendant in person, and a refusal to receive, the plaintiff must, perhaps, declare on the refusal to accept ;-yet if the defendant ¡¡•is directed the goods to be sent to him by a carrier, delivery the carrier is sufficient to satisfy the contract, and to charge defendant. Downer v. Thompson, 2 Hill, 137; Hague v. Porter, 3 Hill, 141.</p> <p>II. Even regarding the contrast ' rvuill bh O V.* Or C. one for the sale of of defendant's risk after deiiverv to the the Express. The rule is well settled, that where goods sold are to be forwarded by a carrier, delivery to the carrier is equivalent to a delivery to the purchaser; and the property, with the correspondent risk, immediately vests in the purchaser, subject to the vendor’s right of stoppage in transit. People v. Haynes, 14 Wend. 546 ; Dutton, v. Solomonson, 3 Bos. & P. 582 ; Vale v. Bayle, Cowp. 294; Cooke v. Ludlow, 5 Bos. & P., 119 ; Richardson v. Dunn, 1 Gale & D. 417 ; Studdy v. Saunders, 5 Barn. & Cress. 628, S. C. 8 Dowl. & R. 403 ; Tarling v. Bagster, 6 Barn. & C. 360; S. C. 8 Dowl. & R. 282 ; King v. Meredith, 2 Campb. 639 ; Benedict v. Field, 16 N. Y. 599 ; 1 Parsons on Contr. 445 ; 2 Kent’s Comm. 645.</p> <p>III. The cases cited by defendant, Van Nest v. Conover, 8 Barb. 509 ; Newcomb v. Cramer, 9 Id. 402 ; Jones v. Bradner, 10 Id. 193 ;—as showing that the property does not pass by delivery to a carrier, are neither of them in point. They are cases in which the vendor’s right of lien or stoppage was asserted and sustained, notwithstanding the delivery to the carrier; not cases in which the property was held at vendor’s risk while in transit.</p>

<p>TSift insolvent laws of a State cannot affect a creditor residing out of the State, at the time of .the application for the discharge, who does not participate in the proceedings under such laws, even though Ids debt he a judgment recovered within such State.</p> <p>And a resident of this State, by an assignment to him of such judgment, after that discharge, acquires a valid and subsisting interest, which is not affected by the discharge.</p> <p>Whether a judguient recovered, in this State is a contract made or to be executed in this State within the meaning of the insolvent law—Query.</p>

Appeal by the defendant from a judgment in the Third District Court. The. facts are fully stated in the opinion of the Court.

Appeal by defendant from a judgment rendered in the First District Court. The plaintiff brought action against the defendant as indorser of a bill of exchange. On the return -day mentioned in the summons, the defendant did not appear, and plaintiff took judgment by default for amount claimed, interest and costs.

<p>Appeal by plaintiff from a judgment of non-suit, entered at Special Term, by Judge Beads'.</p> <p>The plaintiff, in his complaint, alleged the leasing to him by the defendant for a term of three years, two houses in Seventh Avenue, blew York City, with the yards, premises and appurtenances, and that the defendant (the lessor) in the month of June, 1857, while plaintiff’was in possession, “wrongfully, unlawfully, and without the consent of the plaintiff, and against his wish, entered upon a part of said premises and wrongfully and unlawfully took and converted about twenty feet deep from the rear part.of said two yards to his, the defendant’s, own use, and without the consent of the plaintiff, and still so retains the same. And also then and there wrongfully took and carried away, and converted to his own use certain sheds, woodhouses, and outhouses belonging to the said plaintiff, and situated upon said premises, of the value of about fifty dollars, and injured the privies and other outhouses belonging to the said plaintiff’s said premises, all without the consent and against the wish of the plaintiff.”</p> <p>The defendant, in his answer, denied that the pari of the yards so taken possession of by him was embraced in the lease, or that he had ever leased them to plaintiff.</p> <p>On the trial, the counsel for the plaintiff proposed, and offered to prove “ that the plaintiff before he leased the premises of the defendant, and about the first of April, 1856, examined said premises and yards in company with said defendant, and that said defendant then and there pointed out the wood-houses in the second or rear yard aforesaid, as the place used by the tenants and occupants of the dwelling houses described in rhe aforesaid lease, as and for their woodhouses and as rhe yards used by -said, tenants and occupants of said dwelling houses for hanging up and drying their clothes.”</p> <p>The deiVidant objected, and the Court sustained the objecti on, and excluded the testimony.</p> <p>The counsel for the plaintiff then proposed to prove that in the month of June, 1857, the defendant took possession of both of said rear yards, and tore down all of said woodhouses, and kept the possession of said rear yards to himself wholly from that time down to the time of the commencement of this action.</p> <p>The defendant’s counsel objected, and the Court sustained the objection.</p> <p>On motion, the Court non-suited the plaintiff, and dismissed his complaint.</p> <p>The plaintiff appealed to the general term.</p> <p>contended that the testimony offered by the plaintiff should have been admitted, and cited Greenleaf on Ec. § 286; Freeland v. Burt, 1 T. R. 701; Bacon's Air Tit. Grant.</p> <p>I. The word house, in its most comprehensive signification, means a residence, and whatever is adjoining thereto, enclosed in the same fence ; that is, the dwelling-house ’ and curtilage. Daniel v. Coulsting, 7 Manning & Granger, 125 ; Chitty's General Practice, 175 ; 2 Hilliard's Real Property, 543. In this case, the houses were designated by numbers 162 and 164 Seventh avenue. The plot of land in dispute was an open space in the rear of houses 162, 164 and 166, into which there was an opening from each yard attached to those houses. That space could not be assigned as part of any one of the lots known by those numbers, nor of any two of them. " If it was appurtenant to any, it was appurtenant to all; but the houses let to the plaintiff were let to him exclusively; nothing used or tv be used in common with others was included in the lease. It is clear, therefore, that this upen space was not let to him.</p> <p>II. The written instrument being free from ambiguity, parol evidence of its meaning was inadmissible.</p>

This was an appeal from a judgment of this Court, entered upon a decision of Judge Brady, without a jury. The complaint set up damages for the unlawful ejectment of the plaintiff from certain premises owned by the plaintiff s intestate in fee.

Appeal by plaintiff from a judgment entered against him in the First Judicial District Court, before Justice Dusenbuby. Die action was brought by tbe plaintiff as a Hell Gate pilot, to recover half pilotage fees of the defendant, under the act of the Legislature, passed April 15, 1847. Upon the trial, the Justice dismissed the case, upon the ground that the act pf 1847 was unconstitutional and void. The plaintiff now appeals to the Court of Common Pleas,

This action was brought to recover the value of two promissory notes of defendants’, and a bank check of plaintiff’s, of the value of two thousand and seventy-four dollars and forty-two cento received by the defendants from the plaintiffs.. The, defendants, under a general denial, set up that they had given in exchange for such notes and checks, the note of James De Gray & Co., purchased by them from third parties, in the regular course of business.

<p>Where evidence wasruledoucbytlieCourt below, the appellate Court will not inquire into its relevancy, unless it or its substance appear in the case, hut will assume that the decision of the Court was correct.</p> <p>The defendant collected a sum of money for S. with directions to pay the same to the plaintiff,—Jl’ld, that this was equivalent to au express promise by the defendant to the plaintiff to pay him such sum, and an action for money had and received by plaintiff was well brought. Held, further, that no consideration between plaintiff and S. need be shown.</p> <p>Under such circumstances, it is no defence, that another party claims the same sum, but the money should be paid into Court, and such third party brought in by way of interpleader.</p>

Where by the terms of a contract of sale of real estate, a clay is fixed for the payment of money by the vendee, and the delivery of a deed by the vendor, the vendor is bound to seek the vendee and… Held: no evidence that the vendee did not intend to complete the contract on the day specified in the contract; and would not excuse the vendor’s default to perform or tender a p.-rfonnaace of his part.

The issues in this action came on to be tried before Judge Daly, without a jury, on the 24th and 2oth days of February, 1859. The defendants severally, by their respective attorneys, moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The Court ruled and decided that the complaint was insufficient ; to which ruling and decision the counsel for the plaintiff excepted.

Appeal by plaintiff from a judgment of the Marine Court at general term. The principal facts are these: One Kinshimer was the owner of a gold watch which he valued at $175 to $200. He was the agent for the defendant, and had collected renls for him. Kinshimer had failed to hand over a check which he had received for those rents, and the defendant commenced a civil action for the recovery of the debt.

Appeal by the defendant from an order made at Special Term denying a motion made by the defendant Caro to dismiss the complaint on the ground that it did not comply with the summons. The notice inserted in the summons states that the plaintiff1, on a failure to answer, on the part of the defendants, will take judgment for a specific sum.

<p>The object of this action was to recc made by the plaintiffs for the benefit The complaint and tlie affidavits set • Conroy arrived at the port of Galvesf. • condition, and that the plaintiffs, to er . voyage,' made advances to repair Le . sary charges for the handling of fre’ standing with the master, that the- - the lien of the master. The mast' . consign the vessel to the defends . ‘•raft drawn by the master, to rein:' did not accept the draft, and the ma consign the vessel. It was furtlu being liable, assigned to the plain tor such advances, but that the allow the plaintiffs to collect ■ s.’eged charter party from the - deavoring to collect the freight. - ‘ ■’ in & ■; _ - ...* to continue h ■ certain neces-"■v; with the under- ' - be subrogated to .intifts agreed to 1 their accepting a - n. The defendants coupon declined to .that the master ■ _.en on the freight ...s had refused to :':t, and under an imed, and were enntiffs claimed that such charter party was void as against them, and prayed for a judgment for the freight actually collected by the defendants, and for an injunction and receiver to collect such freight. It also appeared by affidavit, that the owners of the barque were insolvent.</p> <p>A libel had been previously filed, against the barque, in the United States District Court.</p> <p>The defendants, by tlieir answer, setup that the advances were made on the credit of the owner of the vessel, and not on the credit of the vessel ; that the draft was drawn without authority ; that the plaintiffs and the master knew of this charter party, and they denied the agreement with the master, charged in 'the complaint. They averred a violation of the master’s agreement under the charter party, and denied that anything was due the master of the barque. They set up the defendants’ charter party with its attendant circumstances, and their right to collect the freight under it. They further set up the libel in the United States District Court, against the barque, and an interlocutory decree in the proceedings thereunder, in f0-d -if the plaintiff, r ' M:</p> <p>Thé folio^-J ‘ pinion was given at. Special Term.</p> <p>Hilton, J. It a ppears that the barque Conroy, commanded >-oy Abner Cornell, inaster, arrived at Galveston, Texas, on her voyage from New York, in a disabled condition, needing repairs and supplies ", and requiring money wherewith to pay charges on cotton fer transportation from the interior to the coast, and which payment was necessary to enable her to obtain such cotton as freight.</p> <p>The plaintiffs were merchants at Galveston, and on the application of the master, made the necessary advances for those purposes, by means of which the vessel obtained freight upon her homeward voyage to New York, amounting to $2,180.</p> <p>The amount thus advanced by the plaintiffs was $8,971 43, about $1,000 of which was applied in the payment of the charges upon the cotton which 'was obtained by the barque for freight.</p> <p>After the arrival cf the barque dated April 8th., 1359, the captain at this port, and by writing assigned and transferred to li.ti plaintiffs all the freight, money and earnings of the vessel u:ion the voyage, and all lien and interest which he as such piaster had hereto, for or on account of such advances, or of his liability therefor, as collateral security for the repayment to the idainfiffs of the sums thus advanced by them.</p> <p>The owners of the vessel being insolvent, the plaintiffs aver that they will lose their advances unless they can be protected by a lien on the freight for the advances so made to the captain to enable him to obtain it, and as a Court of Equity, we are asked to enforce this lien thus acquired through the captain, for the benefit of the plaintiffs, by appointing a receiver to collect the freight, and restraining the defendants from, interfering with it.</p> <p>In opposition to this claim, the defendants insist that they arc solely entitled to the freight carried by virtue of a charter party, dated December 10, 1858, entered into between them and the owner of the barque, by .which the vessel was chartered to them for the voyage in question.</p> <p>Under this charter party the defendants were collecting the freight, when this action was commenced, and an injunction against their further interference with it -was granted.</p> <p>^Uie plaintiffs now ask that this restraint be continued S.ring the pending of this litigation, and that a receiver be appointed to collect the freight earned upon the voyage in question.</p> <p>On the argument of this motion many other facts of a minor character were presented, and many questions discussed, which I do not intend to refer to at this stage of the action, desiring that the parties at the trial may not he embarrassed by any view which might now be taken respecting them, and believing that the present application should be disposed of on the ficts here narrated.</p> <p>Xor is it material that the second defence set up in the def.-ndants’ answer should be passed upon further than to remark 'hut it does roe appear that at the time of filing the libel in the hi-irict Court by the plaintiffs, against the vessel in rem, -•'■aiming a lien for the same moneys which are, in this action, '-"tempted to be collected as a lien upon the freight, that the defendants possessed, by assignment from the captain, his lien, as master of the vessel, for indemnity for the personal responsibility incurred by him as such master in a foreign port. It therefore cannot be said that the plaintiffs might have enforced the lien, now claimed in that proceeding, because it is not shown that they possessed any claim to it when that proceeding was instituted.</p> <p>That the master had a lien upon the freight and earnings of the vessel for the voyage, in respect to his advances and personal responsibilities necessarily made or incurred by him while at Galveston, for the safety of tire vessel and the successful prosecution of her homeward voyage, I think cannot be doubted, Van Bokkelin v. Ingersoll, 7 Cow. 670 ; S. C. 5 Wend. 315 ; Lewis v. Hascock, 11 Mass. 72 ; Ship Packet, 3 Mason, 255 ; 3 Kent, 167, note 2 ; Parson's Mercantile Law, 381. And this lien thus given by law is capable of being assigned by him so as to vest in the assignee the same rights which he possessed by reason of it. Jewett v. Coffin, 20 Wend. 603 ; Judah v. Kemp, 2 John. Cases, 418.</p> <p>The plaintiffs, therefore, occupy the same position before the Court as the captain or master, and in an action against parties claiming to collect the freight under color of right acquired through a charter party, made with the owner of the vessel, an injunction is sought pending a litigation in which the rights of the respective claimants are to be determined. I think the circumstances shown are such as. justify me in granting the motion.</p> <p>It cannot be that a master’s lien thus acquired can he divested by the owner of the vessel, by any means short of actnal satisfaction by payment, and to so hold, would be in effect, declaring a lien to exist which at any moment might he evaded at the will of the owner. . . The injunction will, therefore, he continued, and a receiver appointed. •</p> <p>From this decision the defendants appealed to the General Term of this Court.</p>

<p>Appeal by the plaintiff from a judgment dismissing the com-. plaint on the trial.</p> <p>This action was brought by the plaintiff, as receiver of the defendants, Blashford, Clark, and Hall,., appointed in supplementary proceedings at the instance of certain creditors, to set aside an assignment made by Blashford, Clark, and Hall, for the benefit of their creditors.</p> <p>The parties having rested, the cause was submitted to the judge (Beady, J.) who found as a conclusion of law, that the assignment, and all the trusts and provisions thérein contained were good and valid. The reasons for his decision are given in the following opinion.</p> <p>Beady, J.—The provision in the assignment by the defendants in this case directing the assignee first to pay all the just and reasonable expenses, costs, and charges, and commissions of executing and carrying into effect the assignment, “ and all reasonable and proper charges for attorney and counsel feel respecting the same,” does not render the assignment void; the expenses of the trust are usually provided for by the assignment, and when they are not, the assignee is authorized to retain out of the moneys that come into his hands enough to pay them. Noyes v. Blakeman, 3 Sand. S. C. 531; Clark v. Hoyt, 8 Iredell Equity, 222 ; Egbert v. Brooks, 3 Harrington (Del.), 110; Hill on Trustees, 570; Lewin on Trusts, 450; Webb v. Shaftesbury, 7 Vesey, 480 ; Brooksopp v. Barnes, 5 Mad. Ch. Rep., 90. And the fees of the counsel for services in suits, or for advice in the general management of the trust are properly embraced in the item of expenses. Fearns v. Young, 10 East, 184; Jones v. Stockett, 2 Bland., 417; Noyes v. Blakeman, supra. An assignee may in most cases screen himself against mistake, or where he is in doubt as to the line of his duty, by taking the advice of counsel, and for reasonable fees for such advice he will he allowed in his account. Jones v. Stockett, 2 Bland., 409. The protection of the assigned estate may often render it necessary to consult and to employ counsel, and the sums paid in such cases should be allowed to a reasonable extent, in all cases where it appears that any necessity induced such consultation or employment, or that circumstanees existed which-justified the expenditure. The compensation of assignees is limited, and the courts have not yet declared that they should appropriate it to the payment of expenses necessarily incurred in the discharge of their duty, An assignee cannot, it is true, charge counsel fees for services rendered in that capacity by himself, and it is also true, that a provision thereto would render the assignment void. Nichols v. McEwen, 21 Barbour S. C. Rep. 65. It was said on the trial of this case that Nichols v. McEwen applied to all cases where the assignment provided for counsel fees, but such is not the fact; the decision rests upon the facts that the assignee was a counsellor at law, and that the allowance of counsel fees was made to him by the language of the assignment. (See opinion of Justice Denio, in Court of Appeals on the affirmance of the judgment of the Supreme Court.) The provision, therefore, in the assignment of the defendants is in fact a direction to the assignee to employ a right, recognized a,nd enforced in courts of justice, viz.: To deduct reasonable and proper charges paid for attorney and counsel fees, respecting Ms trust. (See Statute of 1858, chap. 314, extending powers of assignees.)</p> <p>It is also said, that the assignment is void, because it provides for the payment of a debt, the amount of which is left blank in the schedule. The debt is thus stated: “ William Fullerton, amount due for services and counsel fees.” I cannot discover on what principle such an omission as here complained of should vitiate an assignment. The exact sum is not stated, it is true, but the direction is to pay the sum due, whatever it may he, and it is capable of being ascertained without difficulty. In Hawley v. Wall, 1 B. & A., 103, it appeared that the plaintiff signed a composition deed, but did not put the amount of his debt opposite his name at the time of his execution of the deed. He desired the person who presented it to come the next day; on the next day he refused to state the amount, and to be bound by the agreement. Lord Ellenborough held, that the deed being executed in blank, it was executed for the amount of plaintiff’s debt, whatever it might be. This principle applied to the case in hand, makes the provision good.</p> <p>The preference was for the amount due, and though that amount might he the subject of difference on the settlement of the accounts of the assignee, it cannot reasonably be regarded as turnishiag a fatal objection to-the validity of the assignment. 1 taiuk the proposition for these reasons untenable. It was also smd that the reservation by the assignors of any surplus rendered the assignment void. The provision in this respect secures the surplus after the payment of all the debts of the assignors in full, and if no such reservation were made, it would follow as matter of law. After the payment of all the debts of the assignors, the surplus belonged to them, and should be handed over as matter of course; but if the assignment only relates in this respect to the copartnership debts of the assignors, it is not necessarily fraudulent as to individual creditors of the different members of the firm. Bogart v. Haylet. 9 Paige, 296. The appropriation of the whole of the copartnership property to the payment of the joint debts seems to he a proper and equitable disposition of it. The defendants are entitled to judgment.</p> <p>The defendants then appealed to the general term.</p>

The action was brought to recover damages against the defendants for the negligence and carelessness of the driver of one of their ears, by which the infant son of the plaintiff, aged about six and a half years, while returning from school, was run over by defendant's car, and his arm so crushed that amputation became necessary.

. This action was brought in the District Court, for the' Fourth, Tudicir.1 District, upon a promisory note for one hundred lollars. The defendant answered, alleging that the note was an accommodation note, made for the benefit of James L. Oheesem-iE, and that it had been paid.

<p>Appeal by the defendant from a judgment rendered in a District Court, on a motion by plaintiff for judgment on the pleadings.</p> <p>The action was brought .to recover rent of certain premises in the City of Few York. The matters set up in the defence are fully stated in the opinion of the Court.</p>

Appeal by the defendants from a judgment entered on the report of referee. The plaintiff’s assignor contracted with the defendants to set the curb and pave Fifty-fourth street, from Third to Fourth Avenues. The plaintiff, under the direction of the Street Commissioner, while carrying on the contract, did certain work upon the line of the street, not called for by the contract, and for which he brought action.

Appeal by tbe defendant from a judgment of tbe Third District Court. Tim action was brought to recover a penalty of twenty-five d /liars against tbe defendant, for refusing- to obey tbe order of a dock master to haul a vessel away from pier 20 and 21, East Elver, tbe defendant being master of the vessel. The ordinance sued under is chap. 34, “ Of vessels, wharves, arid ships,” passed May 8, 1839.

<p>A tender hv the vendor, of an. unindorsed custom house permit, authorizing a delivery of the goods by the warehouse man, it appearing that the permit was sufficient if indorsed by the vendor, to enable the vendee to take possession,—Held, a sufficient offer of delivery of the goods. The want of the indorsement was immaterial, as the indorsement conld have been made immediately had the vendee made objection on that ground. [Following dictum in Dunham v. Pettee, 8 3ST. Y. 503.J</p> <p>Where it appears from the course of dealing of the warehouse man, or by the agreement of the parties, that the goods stored will he delivered without requiring immediate payment of the storage, the warehouse man relying upon the personal credit of the pariy, there is no lion; because such a course of dealing is inconsistent with an implied agreement at the time of the deposit, that the property is not to be taken away unless the storage is paid.</p> <p>Where it was the established usage of the storehouse keeper to deliver property to houses in good standing, relying upon their personal credit for the payment of the storage, the right of lien was waived, and the Court would have no right to imply, nor would a jury he justified in finding, that the contract of the plaintiff with the storekeeper was different from that of other houses in good standing; but it must be presumed that the plaintiffs contracted upon the same terms as others in like situations until the contrary is shown. /</p> <p>There being no lien upon the property for storage, and the vendee on the permit already tendered, having the right to the possession of the property, it would be unreasonable to require that, at the time of the delivery, the vendor should pay the storage.</p>

<p>Appeal -by the plaintiff from a judgment entered on a dismissal of the complaint at Trial Term.</p> <p>Hie complaint set forth that David Treadwell, the plaintiff, being a builder, made a lawful contract in writing on the 16th day of June, 1853, with the school officers of the Twelfth "Ward of the city of Aew York, to furnish materials for, and to construct and erect, the carpenter work of a brick school-house, for the said city, to be located in 87th street.</p> <p>That C. H. Tucker, a mason, on the same day made a' similar contract with the said school officers to furnish and erect the mason work of the said scliool-house.</p> <p>That the said contracts were several, and had no connection with each other, and that the said Treadwell was required by his contract to place his carpenter work in and upon the said mason work.</p> <p>That the said parties in the performance of the said several • contracts, erected the said building nearly to completion, and that the work of each was at different times, and at different stages of construction, duly inspected and accepted by the defendants, and that on the 13th day of Aovember, 1853, by some defect in the mason work of the said buildings, and from the imperfect and unsubstantial manner of its construction, one wall thereof fell in, doing great damage to the work and materials of the said Treadwell, the plaintiff.</p> <p>That by the falling of the said wall, the plaintiff was thrown out of employment, with four men, for the space of three months, and subjected to other heavy losses and damages.</p> <p>That when the said walls were repaired, the plaintiff proceeded, with the knowledge and consent, and at the request of the school-officers aforesaid, to repair and rebuild, and to furnish anew the material for the carpenter work of said buildings, and did so furnish and build the same and complete the said building, which was duly inspected and accepted by the said school officers.</p> <p>That, the plaintiff; has never been paid for the damage caused by the said fall, and that the same is reasonably worth the sum of three thousand dollars.</p> <p>The ansvv ever inspect ? of the defendants denies that the said work was i or accepted by them, or that the plaintiff procceded with their knowledge or consent, or at their request, to repair and rebuild the said house, and that they have no knowledge or information sufficient to form a belief as to the other allegations of the complaint.</p> <p>On the trial, the plaintiff having rested his case, the defendants moved to dismiss the complaint on the following grounds, • among others:</p> <p>I. That neither the school officers of the Twelfth Ward nor the Board of Education were the agents of the defendants, and the defendants are not liable for their acts, omissions, or want of care and skill, or of that of their employees.</p> <p>II. That admitting that they were such agents, and had authority as such to employ the mason Tucker, and the plaintiff, then the plaintiff and Tucker were two servants or employees in the employ of one principal, and in the same general business, and that for any injury which the plaintiff may have sustained through the negligence of Tucker, the defendants are not liable.</p> <p>III. That Tucker was an independent contractor, for whose negligence or want of skill, or for that of his servants or employees, the defendants are not liable.</p> <p>The motion was granted by the Judge (Beady, J.) and judgment ordered for the defendants. The plaintiff then appealed to the General Term.</p> <p>I. A municipal corporation is liable for damages caused by the negligence of its contractors. 2 Denio, 433; 3 Hill, 531; 3 Duer, 406; 4 N. Y. 338; 5 N. Y. 369; 1 Sandf. 226 ; 3 N. Y. 463; 12 Wheat. 40; 5 Sandf. 289; 4 Ham. (Ohio) 500; 10 Ohio R. 160 ; 15 Id. 475 ; 8 Pick. 356 ; 23 Id. 31; 3 Hill, 193 ; 16 Eng. L. & Eq. 445, 447, note 1;</p> <p>II. The acts and contracts of the Board of Education and of the school officers of the various wards of the city of New York, are the acts and contracts of-the city, (1) on principles of " geney. School Law, § 25; Angell & A. on Corp. 46, 50 ; Parcy on Agency, 2; Story on Agency, 8, 9. The city by approving the appropriations of the school officers, as xi did, through the Finance commissioners, and allowing the work to be done, indorsed their action as its own. Bayley v. The Mayor &c., 3 Hill, 531; 2 Denio, 433. See 4 Dallas S. C. Pa. 206. (2.) On ground of ownership; School Law § 25, (amend-of 1853.) Mayor, &c. v. Bayley, 2 Denio, 443, 405 443, 405; Jolley v. The Board of Police Commissioners, Mss; Code§ 111.</p> <p>III. Plaintiff can have no other remedy than the one sought in this action. If the damage was caused by Tucker, as defendants claim, then Tucker is a mere middleman or builder, and responsible only to the party for whom he built And the same would he true of the Board of Education or of the school officers. Appleton v. The Water Commissioners, 2 Hill, 433; City of Albany v. Cunliff, 2 N. Y. 165. See 2 Denio, 118; 2 N. Y. 129 ; 7 Id. 459.</p> <p>IY. But the damage claimed in this case was not caused by Tucker, but by the defendants themselves, as represented by the Board of Education.</p> <p>The doctrine that a principal is not responsible to one servont for damage caused by another servant, has, therefore, no application to this case, as it is not yet decided that the damage was caused by Tucker,</p> <p>But supposing it caused by Tucker, that doctrine is, then, only applicable to cases where the injured servant has, by the terms of his contract, by implication or otherwise, agreed to take the risks of his employment, and then only when the injury is one to the person, and there can be a remedy against the immediate wrong-doer. Such were the cases of Farwell v. The Boston & Worcester R. R. Co. 4 Met. 49, and of Coon v. The Syracuse & Utica R. R. Co. 5 N. Y. 492.</p> <p>I. The respondents are not liable, as the work which was being performed by the plaintiff, and Tucker, the mason, was not performed under contracts made-with the respondents or by their agents, and no person can be rendered liable to respond to a party for injuries sustained by him through the negligence of a third person, unless 'the relation of principal and agent, or master an-d servant, exists between them. And such relation cannot be created except by contract, express c-r implied, between the principal and agent, or master and servant. Stevens v. Armstrong, 2 Selden, 435 ; Laugher v. Pointer, 5 Barn. & Cres. 547 ; Milligan v. Hedge, 12 Adol. & Ellis, 737; Sproul v. Hemmingway, 14 Peck. 1; Reeves Dom. Rel. p. 310; Story on Agency, sec. 452-6. (1) The school officers of the Twelfth Ward, who made the contract with the plaintiff and with Tucker, are not the agents of the defendants. The corporation has no control over their action. Davies’ Laws, 1057; Laws of 1851, p. 74. (2) Though the title is in the corporation, the control of the property is in the Board of Education, and also the school funds.</p> <p>II. If the appellant has any claim at all, it is upon the Board of Education, or the Board of School Officers, who etnployed Tucker.</p> <p>III. Conceding that the school officers and the Board of Education are the agents of the respondent, the mason and carpenter (the appellant) were two servants in the employ of one principal, and the rule is, that a principal cannot be held responsible to one- of his agents or servants for injuries sustained by him through the negligence of another agent or servont when both are engaged in the same general business. And this rule applies, though the employments of the agents are distinct, when both are necessary in the prosecution of a common enterprise. Coon v. Utica and Syracuse R. R. Co. 7 N. Y. 492 ; Priestly v. Fowler, 3 Mees. & W. 1; Murray v. S. Carolina R. R. Co. 1 McMullen, 385 ; Hays v. Western R. R. Co. 3 Cushing, 270; Brown v. Maxwell, 6 Hill, 594; Kegan v. Western R. R. Co. S N. Y. 175 ; Tarrant v. Webb, 37 E. L. & E. 281.</p>

This was an appeal from a judgment of the special term of this Court, sustaining a demurrer to the answer. The action was brought upon a promissory note against the maker. The defendant after denying that the plaintiff was ¿he holder or owner of the note, set out that the note was given by him in part payment for a house purchased by him from the plaintiff.

Appüal by the defendant from a judgment entered at trial term on the verdict of a jury. The action was brought by the plaintiff against the defendant, who were owners of adjoining lots, to recover damages caused by the negligence of the defendant in permitting water to run from his premises upon those of the plaintiff.

Appeal by the defendant from a judgment of the Eirst District Gourt. The action was brought to recover the sum of $76 05, paid, by the plaintiff to the defendant on the false representations of the defendant’s agent.

Appeal by the defendants from a judgment entered on a .verdict of the jury at the Trial Term. ■ The action was brought to recover damages for injuries to the plaintiff by his being thrown from his carriage, caused by its coming in contact with spikes protruding frour the rail or sleeper of the defendants’ road in Third avenue. The road was at the time of the injury temporarily located at one side of the street, to enable the city corporation to construct a sewer.

<p>kvw.s-r, by the defendants from a judgment of the First District Court.</p> <p>The plaintiff sued to recover the value of a valise, which he, as a passenger upon the defendants’ steamboat, running from New York to Fall River, had deposited in his stateroom. The plaintiff testified that he took stateroom Ho. 9, and paid for the same; that he had a valise with him, containing some clothing and other articles, which he took into the stateroom with him. A key was furnished him by the clerk of the boat. He locked his stateroom and went down to the saloon; in his absence the valise was taken from the stateroom.</p> <p>The defence was, that the luggage was not delivered by the plaintiff to the defendants, who had a regular baggage master to receive and care for the luggage; and consequently they viere not liable.</p> <p>The justice gave judgment for the plaintiff, and the defendants appealed to this court.</p> <p>I. To constitute delivery, the luggage must be given into carrier’s charge, so that he has notice of intention to hold him responsible, and_ he may have possession, so as to enable him to fulfill his duties. Buckmaster v. Levy, 3 Camp. 404 ; Selway v. Holloway, 1 Ld. Raym. 46 ; Tower v. U. & S. R. R. Co. 7 Hill, 47. Where a guest leaves luggage in his room in an inn, and takes the key for the purpose of taking care of it himself, the innkeeper is not liable. Burgess v. Clements, 4 M. & S. 306. So where plaintiff, instead of giving parcel to the driver, put it into his own bag. Mills v. Cattle, 6 Bing. 743. So where owner was to go with cart. Brind v. Pale, 8 Carr. & P. 207. In the last two cases, goods were in the carrier’s possession ; but there was no recovery, because the carriers were not trusted. So where passenger put money into his trunk instead of giving it to captain. Orange Co. Bank v. Brown, 9 Wend. 85.</p> <p>II. No question of delivery is raised by the case. The baggage "was put on the boat, from which it was taken. Robinson v. Dunmore (2 Bos. & P, 416), is not in point for plaintiff. That was not a question of common carrier, but of a cartman who especially engaged to carry goods, and, on objection to insufficiency of his tarpaulin, warranted that goods should go safely. Plaintiff' sent his servant with goods, because defendant was a stranger, and the servant paid for watching them one night. The goods being stolen, the carrier was held liable on special agreement and warranty.</p> <p>III. But the question at bar is, whether there was of was not delivery to carrier. Cayle’s case (8 Co. 33), is not in point, because baggage in a room, at an inn, is delivered to the innkeeper, but not' so plaintiff’s baggage.</p>

Appeal by the defendant from a judgment of the Sixth District Court. The action was brought upon a lost promissory note, alleged to have been made in San Francisco, May 19, 1855, payable to plaintiff or order on demand, with interest at ten per cent, per annum. The justice before whom the cause was tried, rendered judgment for the plaintiff for the principal of the note, and interest from its date at the rate of ten per cent.

Appeal by the defendant from a judgment of the Marine Court, at General Term.

<p>A lease executed by a married woman, containing covenants on her part to pay the rent, and expressing no intention to charge her separate estate therefor, is absolutely void, and constitutSs no bar to an action, against the husband for use and occupation.</p>

<p>Appeal by the defendants from an order of the Court at Special Term, granting a motion to preclude evidence being given, upon the trial, of an account set up in the answer.</p> <p>The Court made a qualified order that “ the defendants be precluded from giving any evidence of the account, and the items thereof stated and mentioned in the answer of the defendants served in this action, except so far as may be necessary to establish the single defence of an account stated and settled between the parties, it being alleged, on this motion, that that is the only defence sought to be interposed in this action, and set up in the defendant’s answer.”</p> <p>The order appealed from was erroneous.</p> <p>The Court should have determined whether the answer alleged an account within §158 of the Code, or not. If an account, time to furnish items should have been given on .terms. If not an account, the motion should have been denied entirely.</p> <p>I. The answer of the defendant alleges an account against the plaintiff, within the meaning of § 158 of the Code of Procednre. The motion papers showed that the items, or particulors, of the account, had been demanded a long time before, and that the defendants’ attorney refused to furnish them. The proper way to proceed was by way of motion, before the case was called for trial, that the defendants he precluded from giving any evidence of the items of the account. Kellogg v. Payne, 8 How. Pr. Rep. 329; Code, § 158.</p> <p>II. The attorney for the defendantá, on the motion, assumed the ground that the answer did not allege any account in this case, and stated that the defendants relied wholly upon the accounting; and conceded, upon the argument of motion, that all the allegations of the answer by way of account, had reference exclusively to the accounting, and that they intended to give no evidence of account except as the same might be given incidentally in proving the accounting, as alleged in the answer. The counsel should now he. held to his own interpretation of the pleading.</p> <p>III. The making of the order was a matter of discretion ex-elusively, that cannot he reviewed. The § 158 of. the Code, invests the Court with the discretion to order a Bill of Particulars in all cases. The motion in this case appealed to that discretion, and the judge would probably have granted the motion, and ordered a Bill of Particulars to be furnished, if the case was not one of those where the party is entitled to it be merely demanding it, if the attorney had not conceded, as he did, that he should give no proof of any items of the account, except by way of establishing the accounting.</p>

This was an action commenced in the Marine Court, to .charge the defendant for certain supplies furnished to the brig Ida Baynes, in the month of September, 1857. The defendant denied that in the month of September, 1857, he was the owner of the brig, or promised to pay for such supplies. On the trial, the plaintiff offered in evidence the registry of the brig, dated March 7th, 1857, and also an affidavit of ownership, made December 21, 1857, by the defendant.

Appeal by the plaintiff from a judgment of the First District Court, dismissing the complaint.

The action was brought in the Marine Court, to'recover the value of a horse.

<p>" Appeal by the plaintiff from a judgment of the Marine Court at General Term.</p> <p>The facts fully appear in the opinion of the Court.</p>

Appeal by the defendants from a judgment of the Marine Court, at General Term. The action was brought to recover for three bills of powder sold by the plaintiffs to the defendant, in 1852, on a credit of eight months. On the trial the defendant admitted that “ the powder mentioned in the complaint was sold and delivered to the defendant by the plaintiffs, in the manner and at the times and prices therein alleged,” and relied solely on the Statute of Limitations as a defence.

<p>Appeal by the defendant from .a judgment entered at Special Term on the report of a referee.</p> <p>In December, 1852, the defendants were jobbers of carpets and other goods in the city of New York, selling mostly to retailers in the Southern and Western States, and in the northern and western counties of this State. Under date of December 10, 1852, an agreement in writing was entered into between one Crawshaw and defendants, by which Crawshaw was to manufacture and ship carpets to defendants for sale on commission, and defendants were to make advances thereon. The only part of this agreement which is material is the 4th clause, in these words:</p> <p>Fourth.—That said firm of A. Journeay, Jr. & Co. shall guaranty all sales of said carpets which they may make, and shall keep all bn hand covered by insurance against fire, and in addition to all charges for insurance, storage, drayage, labor, and other customary charges with commission merchants in New York, they shall be entitled, as a full compensation for their services, to a commission of six per cent, on the amount of dtl sales to customers of the first class, and upon the amount of all sales to customers of the second class an additional and .further commission, so that the sales to customers of the second class shall yield and produce to the parties of the first part as much, and no more, per yard, than the sales to customers of the first class, this additional premium being for the additional risk incurred, and for the longer period they may be obliged to wait for the receipt of the proceeds; it being also left to the said firm to determine who are the first and who are the second class of customers.</p> <p>Under this agreement the business was carried on with Grawshaw and his successors and assignees until September, 1858, the defendants from time to time receiving goods, making advances and rendering accounts sales. The sales were to small dealers, a large proportion of whom resided in distant places.</p> <p>In rendering the account sales, the defendants, in the case of sales to customers of the second class, returned the sales at the rate of sales to customers of the first class, instead of returning them at the actual rate, and then deducted the excess over the price to customers of the first class.</p> <p>In 1854, this action was brought, charging, amongst other things, that the defendants had rendered false accounts, and fraudulently retained a portion of the price for which the goods were sold, and claiming that they had, for this and other misconduct and fraud, forfeited their commissions.</p> <p>The defendants denied all misconduct and fraud, and justified the return of the sales to customers of the second class at the prices for which sales were made to customers of the first class under the fourth clause of the agreement.</p> <p>The case was tried before a referee. The referee found against the defendants upon two of the charges contained in the complaint, to wit, the reclamations for short measure, and the withholding of a portion of the price for which some of the goods were sold. As a penalty for ¿his, he forfeited the defendant’s commission.</p> <p>The defendants appealed to the General Term.</p> <p>I. The referee does not find, as a matter of fact, that the defendants were guilty of fraud or of intentional misconduct. His conclusion of law, that defendants did not earn, and were not entitled to commissions, is, therefore, not sustained by his finding of fact. There is no case where it is held that an agent forfeits his commission, except for fraud or wilful misconduct judicially established. The referee does not convict defendants of fraud, yet he punishes them as if they were guilty.</p> <p>II. The cases where agents have been disallowed their compensation on account of neglect or misconduct, were • cases where the agent was suing. We believe there is no case where the .principal has been permitted to recover it back when once paid.</p> <p>It is well established, that the agent who defrauds his principal earns nothing by way of compensation. (Smith’s Mer. Law, 155 ; Sea v. Carpenter, 16 Ohio, 412; Thurst v. Holding, 3 Taunt, 31; Ridgway v. Ludlow, 3 Halst. Ch. R. 123; 1 Parsons on Contracts, 84, and Cases cited ; Dunlop’s Paley’s Agency, 104, note f).</p>

<p>The facts in the case are sufficiently stated in. the opinion of the Court.</p>

Appeal by the defendant from a judgment of the Fifth District Court. The defendant was the owner of certain premises in Mott street, in this city, which he had rented to the plaintiff, and received the rent for up to the 1st of May, 1861. On the 1st day of May, 1861, and while the plaintiff was absent, the defendant broke the door open with an axe, took out the windows, and removed the furniture of the plaintiff from the premises, and threatened to injure the plaintiff.

Appeal by the defendants from a judgment of the Marine Court at General Term. The plaintiff took passage in the defendants’ steamship at Savannah, Georgia, for the city of New York. The receipt given at the time he purchased his ticket is as follows : “ Steam Ship Alabama, Savaitsah, Sept. 13ih, 1858.

<p>Appeal by defendants from a judgment entered at the Trial-Term on the verdict of a jury.</p> <p>The facts fully appear in the opinion of the Court.</p>

<p>Where camn-s of passengers, by a general.regulation, make it the duty of ■ their agents to take charge of property inadvertently left in their cars, and provide at their depot a place for its safe keeping, where the owner may apply for it, it must be deemed a part of th?ir business to take charge of such articles and keep them for the passenger.</p> <p>.And although they do not engage for tile carriage of luggage, and do not incur respecting it the extraordinary liability of common carriers, yet the existence of the regulation shows Hint they undertake, as incidental to their business, to take charge of it, if left in their care, when the fact is brought to their knowledge; and the specific compensation which they receive for the carriage of tlm passenger is sufficient to,constitute them bailees for hire, While the property remains in their custody.</p> <p>The plaintiff left a satchel in defendants’ car, which the conductor took charge of, and upon the return-trip placed it in the care of the receiver of the road, • by whom it was delivered to a person who had no right or claim to it,— Ildd, that the defendants were liable as for. a conversion.</p> <p>Where property is not put in a bailee’s charge by tlie owner, but comes into his possession through the owner's neglect, and where be may not know to whom it belongs, or by wliom it was left, lie should not be held responsible for delivering it to the wrong person, if he lias exercised all tire care and vigilance that could reasonably ho expected of him under the circumstances.</p> <p>The question of care and vigilance is one of ftict for the tribunal which tries tlie ease, and its finding will not ordinarily he disturbed on appeal. ’</p>

. Appeal by the defendants from a judgment of the Marine Court at General Term.

Appeal by the plaintiff from a judgment of dismissal granted by the First District Court, on the ground that the promise on which the action was brought was within the statute of frauds. The facts sufficiently appear from the opinion of the Court.

<p>Appeal by the plaintiff from a judgment of the Marine Court, at General Term, for the defendant, on a demurrer to the complaint.</p> <p>The complaint alleged that plaintiff was a “ general furnish-</p> <p>ing undertaker,” doing business in the city of New York, and that the defendant was the Public Administrator in and for the said city of New York. That on or about the 9th day of June, 1860, one Anna Winchester, who had been, previous to that date^ residing in said city, died intestate, and without having any friends and relations in said city. That thereupon the plaintiff, in his capacity as such undertaker, superintended the burial of the said Anna Winchester, and did and performed certain work, labor and services, furnished certain materials, and paid, laid out, and expended certain moneys, in effecting such burial, which said work, labor, and services so rendered, said materials so furnished, and moneys so paid, laid out, and expended, were of the value, reasonably worth, and amounted in the aggregate to the sum of one hundred and eighty-one dollars and ten cents. That said charge was reasonable and proper, and that the. said funeral was, in every respect, suitable to the degree and circumstances in life of the said Anna Winchester. That on the 18th day of July, 1860, letters of administration were granted and issued to the defendant as such public administrator, by the Surrogate of the city and county of New York. That the defendant has in his bands, as administrator of the said Anna Winchester, assets to the amount of over six hundred dollars, in cash, which he has received and taken possession of as such administrator, and which is part of the estate of the said Anna Winchester, deceased. That while the said defendant had in his hands such assets, the plaintiff demanded payment from the defendont, &c. •</p> <p>The defendant demurred to the complaint, as not stating facts sufficient to constitute a cause of action. The demurrer was allowed, and the judgment being affirmed at the General Term of the Marine Court, the plaintiff appealed to this Court.'</p> <p>I. The.Public Administrator, on taking out letters, became invested with all the rights, powers, and liabilities of any other administrator ¡ and may, in like manner, sue and be sued; and is to be treated by creditors precisely the same as any other administrator. 3 Rev. Stat. 5th ed. 212.</p> <p>II. An executor or administrator, with assets, is liable .upon an implied contract to pay the funeral expenses of his testator, suitable to his degree, although he does not give orders for it. Williams on Executors, vol. 2, 1623, 1624; Rogers v. Price, 3 Young & Jerv. 28 ; Tugwell v. Hayman, 3 Camp. 298; Corner v. Shew, 3 Meeson & Welsby, 350.</p> <p>■ III. And the executor or administrator is liable on such a contract personally, and not in his representative character. Dayton on Surrogates, ed. of 1855, 286; Brice v. Wilson, 3 Neville & Manning, 512 ; Corner v. Shew, Hayter v. Moat, 2 Meeson & Welsby, 56. (1.) In Corner v. Shew, above cited, it was held, that the implied promise is on the part of the executor, personally, and not in his representative capacity. And the Judge who delivered the opinion of the Court, then adds: “We are all of that opinion.” (2.) It would seem, even, that the naming the defendant executor in the declaration is mere surplusage, and that he is liable de honis propriis, if liable at all. (3.) The principle is laid down in the various cases to be, that as an express contract by the executor would certainly have bound him personally, the implied promise cannot place him in a different condition than if he made an express contract to the same effect. (4.) The rule is the same in the.case of an administrator. Hayter v. Moat, 2 Meeson & Welsby, 56.</p> <p>I. An administrator is not individually ox personally liable for funeral expenses of deceased where he has neither given nor adopted directions for the bnrial of the deceased.'</p> <p>II. Administrators have no power to act in relation to the estates of the deceased persons until administration is granted, when they become vested with the property of deceased.</p> <p>III. It does not appear on the face of the complaint that administration was ever granted to the defendant on the estate of Anna Winchester, deceased. The place and time administration was "granted should be set forth. Rightmeyer v. Raymond, 12 Wend. 51.</p> <p>IV. There are no facts stated in the complaint- from which a contract can be implied between defendant and plaintiff for defendant to pay the claim sought to be recovered.</p>

<p>One who is appointed to a municipal office, but who is unlawfully excluded therefrom by a third person, who alone performs the duties of the office, cannot recover the compensation allowed by law for such services, without at least showing that he has taken every proper legal measure to obtain possession of the office.</p>

Appeal by the defendants from a judgment rendered on the report of a referee. The action was for maliciously procuring the arrest and imprisonment of the plaintiff, on a charge of embezzlement. The facts are fully stated in the opinion of the Court.

Appeal by the defendant from a judgment entered on a verdict, and from an order denying a motion for a new trial.

<p>Appeal by the defendant from an order denying a motion to vacate order of arrest or to reduce amount of bail.</p> <p>The plaintiffs were makers óf a note for $562 25, due June 13,1861. The firm of Thomas Monroe & Co. received this note from, the plaintiffs, and endorsed it to Mason, Lawrence & Co. After the endorsement, Thomas Monroe & Co., the endorsees, made an assignment to the defendant for the benefit of their creditors. The day before the note matured, one of the plaintiffs applied to the defendant for an extension of time for payment.</p> <p>The plaintiffs were informed that Mason, Lawrence & Co. held the note, and that the defendant had no control over it; hut the result of the conversation was, that the plaintiffs transferred to Saunderson a bill of lading for one hundred barrels of flour, then in New York, subject to freight charges. The defendant gave the following receipt for the bill of lading:—. “ New York, June 12, 1861. Received of Jaroslanski & Bros. " bill of lading for one hundred barrels of flour, dated Chicago, “ June 6th, per Buffalo, which I- agree to hold as security for ■" their note due June 13th, $562 25, the sale of which is under “ their direction. Z. W. Saunderson, Asssignee of Thomas “ Monroe & Co.”</p> <p>Saunderson then informed the holders of the note of the receipt of the flour by him, and of the purpose for which he had received it, and they withdrew the note from bank, where it had been placed for collection. On August 10, 1861, no demand having been made on the plaintiffs for payment of the note, and no notice of any intention to sell the flour having been given them, the defendant sold the flour for tire then market price—vis. $4 35 per barrel.</p> <p>On December 24th, 1861, the plaintiffs demanded the flour from Saunderson, and made him an offer to pay the note and expenses. He informed them that he had sold the flour. On April 9th, 1862, the demand and offer was renewed, and the same answer made. *</p> <p>Upon this the plaintiffs brought an action against Sannderson for converting the flour to his own use, and claimed to recover the whole value of the flour, which they fixed at $600. The defendant was held to bail in $600; and a motion was made to discharge Mm, or reduce his bail.</p> <p>The Court, at Special Term, denied the motion to discharge the defendant from arrest, and-refnsed to reduce Ms bail, Hmtoxt J. rendering the following opinion:</p> <p>Hiltos J.—The receipt given by the' defendant at the time the bill of lading for the flour was transferred to Mm, clearly shows that the transfer was made and intended for collateral security for the payment of the note held by Mason, Lawrence & Co., to whom it had been previously transferred by Thomas Monroe & Co. There was no special power of sale given to the defendant, but, on the contrary, the receipt indicates that the plaintiffs reserved to themselves the right to control and direct any disposition which was to be made of the flour.</p> <p>. The transaction was clearly a pledge, requiring a demand of the plaintiffs to be first made for the payment of the note, to authorize a sale of the flour; and, in addition, the plaintiffs were entitled to reasonable and personal notice of the sale intended.</p> <p>It appears that neither .notice to redeem, nor notice of the sale, was given the plaintiffs, and it thus became optional-With them to treat such an unauthorized disposition of their property, as die affidavits show has been made by the defendant, as a wrongful conversion of it, and maintain an action of trover for its value. Stearns v. Marsh, 4 Denio 227. The papers -submitted show that this is such an action.</p> <p>Therefore, the motion to vacate the order of arrest must be denied.</p> <p>From the order denying the motion, the defendant appealed to the General Term.</p>

This action was brought to recover the price of certain pistols sold by the plaintiff to the defendants. The defendants set up ; First, that the sale was-by sampleSj and that the pistols delivered were inferior to the samples, and Secondly, that the sale was brought about by false representations of the vendor.

The defendant in this case, being the lessee of the pier at the foot of Laight street, levied upon property in two barges for his wharfage. It appeared upon the trial that the two barges were not fastened to the pier, but lay in the slip, and that thej were third or fourth from the bulkhead.

Appeal by the defendant from a judgment of the Seventh District Court. Held: a third mortgage. A second mortgage had passed to a decree of foreclosure, and defendant expecting that he would have to purchase at the sale, wanted the §7000, to enable him to pay off the prior mortgages, taxes, etc. Plaintiffs made the requisite searches, but Schoonmaker not being In a condition to perform the agreement on his…

Appeal by the plaintiff from a judgment entered on the report of a referee at Special Term. Held: in Smith v. The Mayor, &c. of New York, that a resolution of the Common Council, authorizing members of committees to hire carriages when engaged in transacting the business of their committees, conferred a valid authority to engage carriages when thus occupied ; that contracts of such a nature were not designed to be embraced by the…

Appeal by tbe- plaintiff from a judgment entered at tbe Trial Term. The action was brought against tbe defendant as the second indorser of a check. It appeared on the t lai that one John A. Stewart being indebted to the defendant, for tbe purpose of paying a debt delivered to tbe defendant a check upon the Bank of Commerce in New York, purporting to be signed by “ Plant Brothers,” to the order bf one H. Hoag.

<p>The plaintiff was in possession of certain premises under a paroi agreement with the owner that he should have a lease for five years after May 1st following. The defendant having become the owner of the premises, the plaintiff agreed in writing to surrender possession of them to him on the 1st of October preceding said 1st day of May, on payment of 0350;</p> <p>Held—1. That the paroi agreement between plaintiff and the first owner was valid, and gave the plaintiff a right of possession until the 1st day of May thereafter.</p> <p>8. That the plaintiff’s agreement with the defendant was founded upon a sufficient consideration and was valid: and the plaintiff having performed on his part, was entitled to compel a performance on the part of the defendant.</p> <p>To entitle plaintiff to recover the amount agreed to be paid on his surrender of possession he was bound to show that he was ready and willing to surrender on the day agreed on, unless a strict compliance with the condition, on that day, was waived by the defendant; and if such were the fact, it rested with the plaintiff to show it.</p> <p>What facts will show a wai ver of strict performance—query ?</p> <p>On the 1st of October, the defendant’s agent came to the house to take the height of the buildings. He had not been instructed by the defendant to get the key, and the plaintiff, in consequence of a violent storm on that day, and because he could not get into the house lie was going to, did not resume his effort until the next day,—Held, that though the evidence of a waiver on the part of the defendant was slight, and perhaps doubtful,' yet the Court below having deemed it sufficient, the judgment should not be disturbed.</p>

Appeal by the defendants from a judgment entered on the verdict of a jury at Trial term. The plaintiff sued the defendants, to recover the sum of fifteen hundred dollars damages, for injuries, which he alleged he sustained from falling into- the- coal or vault hole, opposite premises No. 139 Prince Street, in the city of New York. The complaint did not contain any allegation of presentment of demand to the Comptroller, as required by the Act of April 1-i, I860.

Appeal by the defendants Mcllvain and Young front a judgment on a v.erdict rendered on the second trial of the cause. Held: and such is the law, that if the note received from the principal be payable but one day ahead, and the surety is not shown to have assented to the extension, he is thereby discharged.

Appeal by defendants from an order made at Special Term, denying a motion to open a default. The complaint was upon a promissory note made by John B. Corlies, and endorsed by Henry A. Burt. The defendant Oorlies answered, setting up that the indorsement was merely for accommodation, and that the note was taken by the plaintiff from him on a usurious consideration.

Appeal by the plaintiff from a judgment of the First District Court, dismissing the complaint. • The action was brought by the proprietor of the Few York City Directory, to recover the price of the insertion of two business advertisements in the Commercial Register annexed to bis Directory, one for thirty-five dollars, and the other for two dollars and a half.

Appeal by the defendant Lorn a judgment of the Marine Court at General Term. The facts of the case, and the grounds of appeal, are fully stated in the opinion of the Court.

Appeal by the defendant from a judgment of the Eighth District Court. The plaintiff recovered a judgment in the Eighth District Court of the City of New York against the defendant, for 01 Yo 13, on the 10th day of July, 1862.

<p>In cases of cross-indebtedness growing out of mutual dealings, a court of equity will always interpose to set off one debt against the other, and adjudge the balance to be the sum equitably due.</p> <p>One of the cross-debtors, after the contract creating the debt had been executed, and his liability fixed, made an assignment for the benefit of his creditors. Held, that this did not affect the equitable right of the other to set-off his debt.</p> <p>A general assignee for the benefit of creditors succeeds merely to the rights of the assignor. He is not, in respect to the property transferred, a bona fide holder for value, but takes it as a trustee, subject to any equities which may exist between the debtor and his creditors.</p> <p>An injunction to restrain the assignee from disposing of the evidence of the plaintiff’s mdebedness, is a necessary part of the relief sought in such. nn action, and a motion to vacate it was denied.</p>

Appeal by the plaintiff from an order made at Special Term, setting aside a judgment as irregularly entered. One Mary Higgins obtained a judgment in the Fourth District Court, against the defendant Lyons', who is a constable in the city of Hew York, for official misconduct, and on the return of the execution unsatisfied, leave was obtained of the Court of Common Pleas to commence an action upon Lyons’ bond. An action was commenced against Lyons and his surety Char-lock.

Appeal by the defendant from a judgment of the Eighth District Court. - The. facts are stated fully in the opinion of the Court.

Appeal by the defendant from a judgment of the Eighth District Court. The action was brought to recover from the defendant the value of certain supplies furnished to the brig Hope, in the port of New York. It appeared in evidence on the trial that the defendant loaned one Webster a sum of money, to secure which Webster caused to be executed to the defendant a hill of sale of the brig, which vessel Webster had purchased at a Marshal’s sale.

Appeal by the defendants from a judgment of the Marine Court at General Term. The action was brought to- recover the value of five bales of cordage and rope, received by the defendants for shipment from New York to Milwaukee.

Appeal by the defendant from an order at Special Term denying a motion to vacate an order of arrest.' The facts sufficiently appear in the opinion of the Court.

<p>Where there is no disturbance of actual possession, or where the holding over by the landlord is not with the intent of keeping the tenant out of possession, after he has become entitled to it, there can be no pretense of an eviction.</p> <p>The plaintiff demised, to the defendants a plot of ground for ten years, which they used as a lumber yard, reserving to himself the right to occupy a small wooden building upon the land, for a year and a half, and which he used for the storage of certain articles for one day over the time, having received no intimation from the lessees of their intention or wish to use it. Upon that day they notified him of their intention to remove, upon the ground that he had broken the lease by withholding a part of the premises, and imroediately commenced removing, which occupied them eighteen days.</p> <p>Held, that there was no disturbance of the lessees’ possession, as they had never been in occupation of the building, and as the holding over was with no design to retain it against their wish, it was simply an attempt to get up an eviction, and constituted no defence to an action for the rent.</p>

Appeal by plaintiff from an order made at Special Term on a motion made by the plaintiff to dismiss an appeal taken from the General Term of the Marine Court. The General Term of the Marine Court had granted the plaintiff a new trial, and the cause had been set down for trial for a particular day. After this, and before the trial, the defendant served upon the plaintiffs attorney a notice of appeal, with a copy of an undertaking.

Appeal by the plaintiff from the judgment of a District Court.

Appeal by the plaintiff from a judgment at Trial Term, dismissing the plaintiff’s complaint. The action was brought to recover the sum of ninety dollars as extra compensation, in addition to freight and charges,for delivering a cargo at a pier other than the one at which the plaintiffs usually delivered.

Appeal by the defendant from the judgment of a District Court. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment rendered for the plaintiff on the trial.

Appeal by the plaintiffs from a judgment of a District Court. ■ The action was brought to enforce alien filed under the Mechanic’s lien law. The facts are fully stated in the opinion of the Court.

Appeal by the plaintiff from a judgment at Special Term, confirming the report of the referee. The action was brought by the plaintiff as a sub-contractor, against the defendant Haley as contractor, and Stone as assignee of the contractor and of the owner Kenney.

Appeal by the plaintiff from an order at Special Term denying plaintiff’s motion. The plaintiff commenced a proceeding to foreclose a-Mechanic’s Lien. The lien was duly filed in the office of the Clerk of the City and County of New York, on the 18th of March, 1863. The usual nAice of foreclosure, and a bill of particulars, were served on the wife of the owner, his agent, in the premises, more than twenty days before the oth-day of.

<p>A .warehouseman who takes goods upon storage for hire is answerable for their loss, or the loss of any part of them, not proceeding from the. inherent nature of the goods, such as absorption, deterioration or like cause, unless he can show that the loss occurred under circumstances exonerating him from all blame; or if he cannot do that, that he exercised a degree of care in their safe-keeping that would repel any suspicion of the loss having occurred through his negligence or dishonesty.</p> <p>It is sufficient for the plaintiff in the action to show that the property entrusted to the warehouseman has not been restored upon demand, or has been returned diminished in quantity, or injured. It is then incumbent upon the defendant to show how the loss or injury occurred, or that he exercised proper care,—as it is to be assumed that the one who had the control and custody of the property, is better able to account for its loss or injury than the one who confided it to his keeping.</p> <p>The presumption that all persons are presumed to have duly discharged any duty imposed upon them by law, is allowed for the benefit of those entrusted with the discharge of public duties as well as for those interested in or affected by the discharge of them. Whether a presumption of this nature is to he applied to private persons or not, will depend upon the circumstances of each particular case.</p> <p>Where a bailee for hire returns the property committed to his care materially injured or fails to return all that was entrusted to him, it is a more legitimate inference to conclude that there was a want of proper care and diligence than to presume that it was exercised.</p> <p>The plaintiff stored with the defendant ten pipes of gin, which were gouged in . the defendants’ wareroom on the day when they were received, and when gouged, upon their redelivery to the plaintiff, there was found to be a deficiency in two of the pipes of about sixty gallons, to recover for the value of which the action was brought. Upon this state of facts, the defendants moved for a non-suit upon the ground that there was nothing to show that the loss was occasioned by their negligence,—Held, that the motion was properly denied.</p> <p>The defendants then proved that the two pipes were stored with the rest in a loft to which nobody had access but themselves and their employees. They gave some evidence of the trustworthiness of their employees, but neither they nor their employees were examined as witnesses to show that they knew nothing of the manner in which the loss occurred, and there was evidence from winch it was fairly inferable that the two pipes had been re-coopered while in the defendants’ loft, but by whom or for what purpose was not shown ;—Held, not sufficient to exonerate them from liability.</p>

This was an action against the defendant as administrator with the will annexed of Elizabeth Larkin. The testatrix by her last will and testament, by which she appointed her ■ husband, Moses Larkin, her executor, after devising certain personal estate, devised the residue of her estate, real and personal, and the rents, issues and profits thereof, to her husband, Moses Larkin, during his natural life, and after his death, the rest, residue and remainder to her children.

Appeal by the defendants from a judgment at Trial Term. The case was tried before Daly, First Judge. On the trial it appeared that the plaintiffs shipped at Antwerp, in Belgium, on board the steamer Belgique, nineteen cases of segars, taking from the master of the vessel bills of lading, making the segars deliverable to the defendants, Hartog & Valkenhuysen, at New York, to which port the steamer was bound.

Appeal by defendants from a judgment of the Marine Court at General Term. The plaintiff, as owner of certain premises, brought ail action for their use and occupation, against the defendants as his tenants.

Appeal by the plaintiff from an order at Special Term, setting aside two judgments for costs awarded to the defendant. The action was brought to recover damages against the defendants, a foreign corporation, for negligently and carelessly killing the plaintiff’s horse in Yew Jersey. The plaintiff ivas a non-resident, but this fact did not appear in the pleadings. After issue joined the defendants obtained an order to compel plaintiff to file security for costs.

This action was tried before-Daly, F. J., and a jury. The action was to recover rent from .August 1, 1351, to May 1, 1355, of premises No. 23 Maiden Lane. The defendants set up an eviction.

Appeal by defendants from an order granted at Special Term, striking out the defendant’s answer as sham and frivolous. The action was for goods sold and delivered.

Appeal by the defendant from, a judgment at Trial Term, entered on the verdict of a jury. The plaintiffs brought this action to recover of the defendant penalties for an alleged violation of the Fire Laws of the city of New York. The complaint alleged that the defendant was the owner of the building 464 Pearl street, in New York city ; that said building was constructed of timber, and that it was not a dwelling house, nor used or occupied as a dwelling house.

Appeal by the defendant from a judgment entered on the report of a referee. This was an action to foreclose a mechanic’s lien.

Appeal by the defendant from an order made at Special Term, denying a morion to set aside an order of arrest. The defendant was originally arrested on the day of a General Election, Hovember 3, 1868. He moved for his discharge on the ground that he was 'an elector, entitled to vote» and was therefore exempt from arrest on election day.

Appeal by the defendants from an order entered at Special Term, that judgment be entered on plaintiff’s demurrer to the answer. The facts, as admitted • by the pleadings, were these.

Appeal by the defendant from a judgment of the Llarine Court at General Term. The action was brought to recover the value of sixty barrels of flour, alleged to have been purchased of the plaintiff by the defendant by and through his clerk and agent, T. Oest, in May and July, 1S62.

Appeal by the defendant from an order made at Special Term directing judgment for the plaintiffs on the ground that defendant’s demurrer was frivolous; and also from the judgment entered on said order.

<p>Where a valid contract has been entered into for the renewal of a lease, by which it is provided that the amount of rent to he paid shall be settled by arbitration, and either party refuses to appoint an arbitrator, a court of equity will compel a specific performance, and order a reference to ascertain what the amount of rent should be.</p> <p>A lease, executed by the plaintiffs to one K. for a term of five years, contained a provision that the lessee “ might have the privilege of a further lease of the premises for five 3'ears, the rent to he fixed by two persons, chosen,'1 &c. Before the expiration of the lease, the lessee died, and the defendant, his devisee and the sole executrix of his will, entered and continued in possession of the premises until after the expiration of the term of the lease. The defendant and an agent of the plaintiffs, but without the plaintiffs’ authority, appointed a person each, who agreed upon a rent to be paid by the defendant for the renewed term. The plaintiffs refused to ratifv- the act of the agent, and notified the defendant that they were renCly to proceed by arbitration, as provided'by tire lease. The defendant refused to appoint an arbitrator. In an action to have the alleged arbitration declared void, and to have the rent for the renewed term fixed tinder the direction of the Court,— liel/l, on a demurrer to the complaint, that the action was maintainable.</p> <p>The continuing in possession by the defendant after the expiration of the lease, was equivalent to an election to take the further lease; and hy such election the covenant to appoint arbitrators became binding upon both parties.</p> <p>On the refusal of the lessee, therefore, to appoint an arbitrator, as the lessor could not give a new lease"until the amount of the rent should be fixed, the lessor is entitled' to the equitable aid of the court to ascertain it.</p> <p>If the remedy which a party may have at law will not put him in a situation as beneficial to him as if the agreement were specifically performed, relief will be afforded in equity.</p>

Appeal by the defendants from a judgment entered, on the verdict of a jury. • The action was brouifht to recover damages for a nersonál injury occasioned' to the plaintiff by the carelessness and negligence of the defendants’ servants.

Appeal by the plaintiff from a judgment entered on a dismissal of tho complaint at the trial. The facts are fully stated in the opinion of Judge Hilton, delivered on the trial, on granting the motion to dismiss the complaint, at the close of the plaintiffs case.

<p>It is the duty of a judge of the Marine Court presiding at a trial by a jury to give judgment upon the verdict; and this judgment he cannot intermit or avoid by making an order for a new trial.</p> <p>An appeal from such a judgment, when entered, brings up only questions of law, and the appellant cannot be heard upon the objection that the verdict was contrary to evidence.</p> <p>There is no provision of law allowing a single judge of the Marine Court to hear a motion for a new trial, or providing for an appeal in that Court from an order either granting or denying such a motion.</p> <p>The reversal of a judgment upon the ground that it is against the weight of evidence, and an order for a new trial by the General Term of the Marine Court, constitute a final determination, ñom which an appeal may be taken to the Common Pleas.</p>

<p>Appeal by the plaintiff from an order made at Special Term (IIiltox, J.), November 19th, 1863, vacating a judgment as to defendants.</p> <p>It appeared from the affidavits read on the motion, that the plaintiff obtained in May, 1861, on a default and inquest at the Trial Term, a judgment against tlie defendants Mather, Bixby, McIntyre, and Samuel Osgood.</p> <p>The defendants McIntyre, Mather, and Bixby, were copartners in 13*31, under the" firm-name of McIntyre, Bixby N Co. The action was upon two promissory notes made by Osgood to McIntyre for his personal accommodation, and by him indorsed in the firm-name McIntyre, Bixby & Co. without the knowledge of authority of his partners. The notes not being paid at maturity, action was brought thereon. McIntyre employed counsel to defend the action for all of the defendants. The defendants Matlier and Bixby were not served with process, and had no knowledge of the pendency of the action, or retainer of the attorney who appeared for them.</p> <p>From an order vacating the judgment as to the defendants Mather and Bixby, with leave to answer, the plaintiff apjeealed to the General Term.</p>

The action was founded upon an undertaking in replevin, given by the defendants as sureties of one Thomas P. Sherlock. Sherlock brought suit against Hugh Lahey to recover possession of a horse, and on taking the horse, gave, with the defendants to this action, the usual undertaking. Before the trial of that action, Sherlock died, and his widow was appointed his administratrix.

Appeal by the defendant from a judgment entered on a referee’s report. The action was brought to recover six months’ rent from May 1st, to ¡November, 1st, 1868, of a portion of the basement of the-building Mo. 161 Broadway. The first story above the basement was leased in February, 1863, by the owner in fee of the premises to the Columbia Fire Insurance Company.

<p>• Appeal by the defendants Lewis anil Blood from an order overruling a demurrer to the complaint, and from a judgment entered at Special Term, upon a trial before Hiltooi, J., without a jury. . . • . -</p> <p>The action was brought by the plaintiff, as a judgment creditor of the defendants Lewis and Blood, to have a certain bill of sale of a stock of goods, executed by Lewis and Blood to one P. R. Lewis, and by him assigned to the defendant Burlock, adjudged and decreed fraudulent and void, as made with intent to hinder and delay creditors. A decree was entered adjudging the sale fraudulent and void, as against the plaintiffs, and ordering that it be referred to a referee to appoint a receiver of all the property purporting to be thus assigned. It was also ordered by the decree, “that the defendants, under the direction of the referee, assign, transfer and deliver over, and account for all property which, at the commencement of this suit, wras in the possession or under the control of said defendants, or either of them; and if any lias been disposed of, then the defendants who have so disposed of the same must pay over to said receiver, under the direction of the referee, the value of the same.”</p> <p>The decree also contained a provision, that if such property should not produce sufficient in the hands of the receiver to pay the amount of the plaintiff’s judgment, the plaintiff should recover judgment against the defendants for any deficiencies which should he reported by the referee, after taking and stating the receiver’s accounts. •</p> <p>The defendants appealed from this decre„e. The plaintiff moved to dismiss the appeal, upon the ground that the decree appealed from was not a final determination, from which, an appeal could be taken. "</p>

<p>Appeal by the administratrix of the .defendant Theodore Keimer, deceased, from an order at Special Term, denying a motion to revive and continue the action.</p> <p>The defendant Keimer only was served with process, and alone appeared in the action. At the trial he obtained a judgment in his favor for the sum of one hundred and ninety-one dollars costs. The plaintiffs served a notice of- appeal, and a copy of their proposed case, with "a stay of proceedings pending the appeal. The defendant died the next day, and his widow obtained letters of administration upon-his estate.</p> <p>The plaintiffs having refused’ to apply to have the action continued against the defendant’s representatives, the administratrix obtained an order to show cause why the action should not be revived, she being made a party thereto.</p> <p>The Court having denied the motion, the administratrix appealed to the General Term.</p>

Appeal by tlie relator from an order at Special Term, vacating an order made by Hilton, J., November 19, 1863, adjudging the respondent Murphy guilty of a contempt; and also vacating and setting aside all proceedings subsequent to such order.

Appeal by the defendants on a case and exceptions. The action was brought to recover two thousand dollars, being the sum settled and fixed as liquidated damages to be paid by the defendant in case of a violation by him of an agreement, under seal, entered into between the parties, whereby the defendant in consideration of $3,000, The answer averred that $2,000 was the real consideration money of the agreement, and denied that the plaintiff had suffered damages. « . .

Appeal by the defendants from a-judgment entered on the report of a referee.

<p>Appeal by the defendants from a judgment at Special Term. The case was tried before Daly, J., without a jury, by consent of parties.</p> <p>The action was brought to recover of the defendant, a corporation hating and controlling a line of telegraph between the city of New York and Washington, D. 0., damages for a mistake in a message transmitted over the defendant's line, by the plaintiffs, at Washington, to their brokers, Drexel, Winthrop & Co., at New York.</p> <p>It was shown on the trial, that on the 14th clay of October, 1863, the plaintiffs delivered to the defendant at its office in Washington, the following message, directed to Drexel, Winthrop & Co;</p> <p>“ If we have any old Southern on hand, sell same before board “ —buy five Hudson at board—quote price.”</p> <p>“ Eittexhovse, Fast & Co.”"</p> <p>The message received hy Drexel, "Winthrop & Oo., was as follows :</p> <p>“ If we have any old Southern on hand, sell same before board “ —buy five hundred before board—quote price.</p> <p>“ Bittexhouse, Faxt & Co.”</p> <p>By an understanding between the plaintiffs and .their brokers, the words “old Southern” in the message meant Michigan Southern Railroad stock. The words “ five Hudson ” meant five hundred shares of Hudson River Railroad stock; and the word “board’’meant the stockbrokers’ board in New York. The agents, without suspicion of the error in the telegram, sold all the Mieldgan Southern of the plaintiffs’ before the morning board, and purchased five hundred shares of the Michigan Southern stock at the hoard for the plaintiffs, at forty-four thousand three hundred and thirty-seven dollars and fifty cents, that being the lowest price for which they could be bought. Immediately after the purchase, the brokers notified the plaintiffs by telegraph, of the purchase, and price. The same day, the plaintiffs directed their brokers, by telegraph, to cancel the erroneous sale and purchase of the Michigan Southern stock, and to purchase the five hundred shares of Hudson River stock. The message was received late in the day, and after the board adjourned. The brokers sold on the street, the same afternoon, the five hundred shares of Michigan Southern, for the best price they could obtain, forty-three thousand eight hundred and sixty-two dollars and fifty cents, being four hundred and seventy dollars less than they had to pay for them at the board. They also purchased on the street, five hundred shares of the Hudson River Railroad stock, as directed by the plaintiffs, at one hundred and thirty-nine dollars and fifty cents per share, that being the lowest price at which they could be obtained. The lowest price at which the same stock was sold at the morning board on that day was one hundred and thirty-six dollars per share, and the average price was one hundred and thirty-six dollars and seventy-five cents; making a difference between the lowest price at the morning board, and the price paid hy the plaintiffs' brokers, on'the whole five hundred shares, of one thousand seven hundred and fifty dollars, and a difference between the average price at the morning board, and the price paid, of one thousand three hundred and seventy-five dollars.</p> <p>The broker testified that had the correct despatch been received by him, he would have purchased the five hundred shares of Hudson River stock", for the plaintiffs, at the first hoard in the morning. .</p> <p>The testimony on behalf of the plaintiffs being closed, the defendant’s counsel moved to dismiss the complaint, on the following grounds:</p> <p>1. That the message as delivered by the defendant to Drexel, Winthrop & Co., was so indefinite and uncertain in its directions to buy, as to put them upon inquiry as to its meaning; which was overruled by the Court.</p> <p>2. That the words five hundred in the connection in which they were used in the message as delivered, conveyed no anthority to Drexel, Winthrop & Co. to purchase Michigan Southern Railroad stock; which was overruled by the Court, the Court deciding that the message as delivered, authorized Drexel, Winthrop & Co. to purchase five hundred shares of Michigan Southern Railroad stock.</p> <p>8. That the purchase of five hundred shares of Michigan Southern Railroad stock, by Drexel, Winthrop & Co., was not a legitimate consequence or result of the defendant’s error in the delivery of the message; which was overruled by the Court.</p> <p>4. That on discovery of the error in the message as delivered after the purchase of Michigan Southern Railroad stock, it was the duty of the plaintiffs, or their agents, Drexel, Winthrop & Co., to notify defendant of the purchase, and give the defendant an opportunity to adopt it, and assume the consequences thereof. The Court sustained this point, and held and decided that as no such oportunity was given the defendant, bufón the" contrary, the plaintifis sold the said stock without consulting the defendant, the plaintifis could not recover any loss incurred by such purchase and sale. To this ruling, the plaintiffs' counsel excepted.</p> <p>5. That the pinchase of the Hudson River Railroad stock was a voluntary purchase, made with full knowledge on the part of the plaintifis of the error in the delivery of the message, and of the market price of said stock, and that the damages alleged and claimed by the plaintiffs to have resulted therefrom, were speculative merely, and did not result from tlie defendant’s error. The Court overruled this point, and the defendant’s counsel excepted. • _</p> <p>6. That the purchase of Hudson River Railroad stock made by Drexel, Winthrop & Co. was not made in accordance with the directions of the plaintiffs, inasmuch as such purchase was not made at the board, and the defendants could not be liable thereon ; which ivas overruled by the Court, and the defendant’s counsel excepted.</p> <p>7. That the negligence and carelessness of the plaintifls and their agents, in misconstruing the telegram, contributed to the injury alleged, and the plaintiffs could not recover; which was overruled by the Court, and the defendant’s counsel excepted.</p> <p>8. That after the discovery of error, and before purchasing the Hudson River Railroad stock, it was the duty of the plaintiffs to notify the defendant, and having omitted to do so, the plaintifls could not recover for the loss on the purchase; which was overruled by the Court, and the defendant’s counsel excepted.</p> <p>Tlie Court, thereupon, decided that the plaintifls were entitled to recover of the defendant the sum of one thousand three hundred and seventy-five dollars, with interest thereon from the 14th day of October, 1863, amounting in all to the sum of one thousand four hundred and "twenty-five dollars and eighty-nine cents, and entered judgment accordingly.</p> <p>From the judgment entered on this decision, the defendant appealed to the General Term. "</p> <p>I. The defendant is not a common carrier. It does not imdertake to carry either persons or merchandise. It is simply a contractor undertaking to perform labor and services, and is liable only for damages for non-performance of its contract.</p> <p>II. The damages claimed are not the immediate, consequential and necessary residís of the mistake of the defendant, but are remote consequences which could not be produced by the action of the plain tills through their agents (Wibert v. N. Y. and, Erie R. R. Co., 19 Barb., 36).</p> <p>HI. The first message was so indefinite and uncertain in its directions to purchase, that the brokers should have been put up! on their guard, and were charged with the duty of making further inquiry before acting under it.</p> <p>IY. The plaintiff’s first message directed the purchase of u five Hudson at board.” Their second message repeated the first in substance, and directed their agents to “ execute balanee of order.” The agents were therefore clearly and cmphatically commanded to purchase the Hudson River Railroad stock at the board. They purchased it on the street after the adjournment of the board, in violation of the directions, and the defendant cannot he charged with the consequences. If they had followed instructions, and made the purchase at the next morning board, it does not appear that any loss would have followed. This point is fatal to that branch of the plaintiffs’ claim upon which a recovery was had, and the complaint should have "been dismissed. •</p>

<p>Ho contract is implied that a house is fit for habitation, as the tenant can examine it, and the landlord may know no more respecting it than it is in the power of the tenant to discover for himself. But where the landlord knows that a cause exists which renders the house unfit for occupation, it is a wrongful act on his part to rent it without notice of its condition, and where the tenant, after discovering the condition of the house, quits it, the landlord should not be permitted to take advantage of his own wrong and enforce the contract for the payment of'the rent.</p> <p>A landlord rented'a dwelling house to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house, proceeding fronvsome unknown cause, which rendered it unfit for habitation. The tenant, ignorant of the circumstances, went into possession with his family, and in a very short time all the inmates of the house experienced the injurious effects of the stench, producing vomiting, &c. The tenant attempted to abate the nuisance, but without effect; and after a month's occupotion, on the advice of his family physician, quit, the premises,—EM, that the concealment was a fraud on the part of tire landlord, and that the tenant was justified in leaving.</p> <p>Even where fraud has been practiced, a tenant, if lie continues to occupy the premises, must pay rent therefor, but after the discovery of the fraud, he is entitled to a reasonable time within which to repudiate the contract.</p> <p>Thus where the tenant continued in occupation about a month, hut did so under tlie assurance of the landlord that the cause of the complaint should be removed,—EM, that his continuance during that period was not of such a nature as to amount to an adoption of the contract, or to make the tenant liable for the payment of the rent for the period while in ac'tual occupation.</p>

Appeal by the defendant from a judgment of the Marine Court. oTIie plaintiff brought a suit iu the Marine Court to recover a balance of rent due from ¡¡November 1st, 1S63 to May 1st, 1861. It ivas admitted that the plaintiff leased the premises in question to the defendant for six months from the 1st of ¡¡November at §35 per month, and that he, defendant, had paid but 390 on account of it.

Appeal by the plaintiff from a judgment of the Sixth District Court, dismissing the complaint. . The action was brought to recover the value of certain gas-brackets and chandeliers, claimed to be wrongfully detained by the defendant. The fixtures were attached to two buildings in Thirty-Eighth Street, in the City of New York, belonging to the plaintiff’s assignor. Diehard W. Horn, who by deed conveyed the houses to the defendants.

<p>Appeal from a judgment by the plaintiff. The facts are fully stated in the opinion.</p>

<p>Appeal by the plaintiff from a judgment entered on a referee’s report.</p> <p>This was an action against the defendants as common carriers to recover the value of a trunk placed on board their boat, the “New World.” On the 14th of August, 1861, the plaintiff sent a trunk containing his wife’s clothing by a cartman to bo delivered on board one of the defendant"s boats for Albany. The cartman took the trunk to the clock where one of the defendants’ employees asked him “ where he was going?” He answered that he wanted to put the trunk on board. The man then directed him “to drive to the first-gangway and put it on board.” The cartman carried it on board and left it with the other tranks at the baggage-room door on the boat. He did not ask the person who directed Lira for a check, though he had checks in his hand, and did not call any person’s attention to the trunk when he placed it at the baggage-room door.</p> <p>The person who spoke to the cartman was the dock agent of the defendants, whose duty it was to instruct persons coming with baggage not going '-vest of Albany, to take it on board the boat, or, if going west of that place, to have it checked on the dock and placed in baggage cars. The baggage-room on board the boat was in charge of another person, whose duty it was on presentation of passenger tickets to check baggage for Albany and Saratoga. "When baggage was brought unaccompanied by a passenger ticket, he took charge of it, if his attention was called to it, but not otherwise, and he took measures to enable him to identify the person entitled to it. This trunk had no card or mark on it to identify it, so far as was shown by the evidence.</p> <p>The referee found the above facts, and that this usage of the defendants had existed for thirteen years; that the defendants had large cards posted conspicuously with the words, “Albanybaggage checked on the boat. Baggage for the west checked on the dock,” and that the trunk had been demanded by the plaintiff, but never recovered. He also found - that the plaintiff "was negligent in delivering the trunk, and that the complaint should be dismissed.</p> <p>On this report the defendants entered up judgment, from which the plaintiff appealed.</p>

<p>Where a guest at an inn. is notified that he must put his baggage in a particular place, that it may he safely kept, and he neglects to do so, the innkeeper is not liable in case of its loss.</p> <p>A guest was lodged in defendant's inn, in a room with several other persons, without objection on his part. He asked the chambermaid if he might leave Ms baggage in the room, and was told by her to deposit it with the clerk at the bar, that, being the established regulation of the house. The guest placed his baggage under his bed, and during his temporary absence from the room it was taken ;—Held, that tire innkeeper was not liable.</p>

<p>The General Term of the Marine Court has the same power as the General Term of the Supreme Court to correct the entries of its own judgments and decisions.</p> <p>On a motion before the General Term of the Marine Court to dismiss aa appeal thereto, for waut of prosecution, an order was erroneously entered affirming the judgment appealed from -—Held, that, the General Teim might, on motion, correct such order, so as to make it conform to the real decision of the court.</p> <p>An order of the General Term of the Marine Court dismissing an appeal thereto for want of prosecution, is not a final determination, from which an appeal can be taken to the Common Pleas.</p>

<p>Appeal by the defendant from s judgment of the Eighth District Court.</p> <p>The fiicts are fully staled in the opinion of the Court,</p>

Appeal by the defendant from a judgment of the District Court for the Third Judicial District.

Appeal by the defendant from a judgment at Special Term overruling a demurrer to the complaint.

<p>An attorney cannot serve, professionally, both parties to a controversy, and . where lie has been retained by one, he cannot recover for professional services rendered in the same matter to the other.</p>

The judge on the trial charged the jury that a certain, amount, if anything, was due to the plaintiff, being the amount of the draft on which suit was brought with interest and protest fees, and that if they found for the plaintiff, they should find for him for that amount.

Appeal by the defendant from the judgment of the First District Court. The action was brought upon an instrument described in the complaint as a promissory note of the following form. New York, July 23,1864. “ We promise to pay to Lansing Fogarty, or order, the sum “ of twenty dollars, provided he proceed to sea in the schooner “ Mary S. Tibbitts, agreeable to the shipping articles he has signed, as cook. “ $20.00. FT A C- a t? On —which ivas endorsed over to the plaintiff.

Appeal by the plaintiff from a judgment of the Special Term, dismissing tbe complaint. The defendants were the inventors of an improvement in machines for pulverizing quartz, for which they had obtained •a .patent.

<p>Where the review and reversal of a judgment by the ultímate appellant tribunal was a nullity, because the appeal was not taken in a way that entitled the Court to hear it, but for which the appellant was not responsible,—He’d, after nine years of acquiescence and repose by the party who recovered the original judgment, that he would be restrained by a Court of Equity from enforcing it, unless be consented that an appeal might then be brought with the same effect as if it had been brought within the time prescribed by law.</p> <p>Where a Court has not jurisdiction of the subject matter, the consent of parties will not confer it; but a consent that an appeal may he brought after the time has elapsed for bringing it, is not liable to that objection. The appellate Court having the general power to review judgments upon appeal, such a consent docs not confer it, but it is a mere waiver of the right to insist that the timo has passed for bringing the appeal.</p> <p>The extent to which a Court of Equity will go in staying proceedings upon judgments,—commented upon and considered.</p>

Appeal by the plaintiff from a judgment of the Eighth District Court. The action was brought to recover the sum of fifty dollars-forfeiture under the “ Act to prevent extortion by railroad companies,” passed March 27, 1857.

<p>Appeal from the judgment of the Sixth District Court.</p> <p>The plaintiff brought an action against the defendants, a.city Eailroad Company, incorporated under a license from the Mayor, Aldermen, and Commonalty of New York, ratified by an Act of the legislature, for the carrying of passengers, and. by that license or grant were restricted to a fare of five cents for each passenger. The Company having increased their fare to six cents, the plaintiff sued for fourteen cents, the sum of the excesses of fare on fourteen trips, and for fifty dollars, the penalty under the provisions of the General Eailroad Act, for an overcharge.</p> <p>The District Court gave judgment for the defendants on these facts, and the plaintiff appealed.</p>

Appeal by the defendant from a judgment at the trial term, entered upon a verdict for the plaintiff, directed by the Court.

Appeal by tlio defendant from a judgment of the Special Term on the verdict of a jury. The action was brought against the defendants for damages for the incorrect transmission of a message sent from Yew York by the defendants’ line to the plaintiff in San Francisco. The cause was tried before Beady. -J., and a jury.

<p>Eleven persons were brought up upon writs of habeas corpus and certiorari, all of whom had been committed by police justices for disorderly conduct, and had been transferred from the City Prison to the Work-House on Blackwell’s Island. Their discharge was moved for for various alleged irregularities, both in the proof of commitment and in the orders for their transfer, all of which appear in the opinion delivered.</p>

<p>The facts of" this case sufficiently appear in the opinion vi Daly, F. J.</p>