Volume 1 — E.D. Smith's Common Pleas Reports

This was an action of assumpsit, brought against the defendant, as the acceptor of a bill of exchange, by the holder of an instrument in writing, of which the following is a copy: On the 1st of September next, without grace, pay to the order of Daniel F. Webster, twelve hundred and fifty dollars, at the Phenix Bank, New York, for value received. “New York, May 19, 1839. “Daniel F. Webster. “ $1,250. “ Endorsed, “Daniel F. Webster.” Across the face of the instrument was…

This action was to recover upon a verbal agreement of the defendants to pay the amount of two drafts for $1,821 62, drawn by one Andrews upon the plaintiffs. A quantity of wool had been purchased by Andrews, the vendors taking in payment therefor the plaintiffs’ acceptances of the drafts in question.

This was an action to recover the value of twenty two cases of German hosiery, alleged to have been the property of the plaintiff, and wrongfully taken and converted by the defendants to their own… Held: that the plaintiff was entitled to recover the value of the goods according to defendants’ sale thereof, without deduction, and assessed the damages of the plaintiff at $3,560. From the judgment entered at special term, the defendants appealed.

This action was brought against the defendant, as the alleged acceptor of a draft drawn upon him by one Browne, who had endorsed the same for a good consideration to the plaintiff. The answer denies the acceptance, and charges, that the writing upon the draft, purporting to be his acceptance, is a forgery. When the draft was offered by Browne to the plaintiff, the latter doubted the genuineness of the defendant’s signature.

This action was brought to recover payment for certain hardware furnished by the plaintiff to a son of the defendant, upon the alleged promise of the latter to be responsible therefor. The grounds of the plaintiff’s allegations are stated in the opinion. At the trial, the judge charged, that if the agreement between the parties was an original one, it did not come within the statute of frauds, but was an undertaking which was binding for an indefinite period.

<p>The tenant of a part of a building, not guilty of negligence or malfeasance, is not liable to a tenant of another portion of the same building, for damages resulting from the defective construction of the demised premises, or from the insufficiency of a fixture therein, by which the'flow of Croton water is regulated.</p> <p>If injury result from the negligence of the owner, either in constructing or upholding the freehold, he is liable, and cannot by letting, divest himself of such liability; although he is not in general responsible for the negligence of the tenant in the use. If the injury result from the negligence of the tenant, he is liable. Thus, both landlord and tenant may be responsible for the same injury.</p> <p>As between different tenants, under a common landlord, the question of liability for injuries arising from the condition of the premises, is always one of negligence in the use. The negligence may consist in either the careless use of well constructed apparatus, or in the use of apparatus which the tenant has reason to know is in a condition unfit for use.</p> <p>Such tenants are not under contract with each other, express or implied; but their reciprocal obligations rest upon the duty, which every man owes, to employ care, that in the exercise of his own rights, those of his neighbor be not injured.</p> <p>The doctrine, that a party cannot recover, where his own negligence concurred in producing the injury for which he seeks redress, does not bind him to the utmost possible caution, but to ordinary care and prudence only.</p> <p>The case must be a very peculiar one, which will justify the court in rejecting evidence, because the fact, which it tends to prove, is already sufficiently established; to entitle a plaintiff to say that the defendant has not been prejudiced, the fact in question should be conceded on the trial, thus dispensing with further proof.</p>

Action for rent of premises number forty four Cortlandt street, on a lease from plaintiff to defendant. The plaintiff was a lessee of the owner, and the defendant was a sub-tenant. Payment of rent was resisted on the plea of an eviction.

This action was to recover the value of lace goods, purchased hy the plaintiffs of J. R. Jaffray & Sons, and sent to E. M. Needles, one of the plaintiffs, at the Irving Hotel, where he was staying, and of which the defendant was the proprietor. The plaintiff, J. Needles, was not a guest at that house.

This was an appeal from the third district justice’s court. The plaintiff’s case was sustained principally by the evidence of one Lewis, who testified that he (Lewis) had sold a house belonging to the defendants for $3,950, under an agreement with them that he should obtain at least that sum for the house; that if the sale produced more, the excess should belong to him; and that they would in any event pay him a commission.

<p>Where a judgment creditor receives notes for a part of his debt, and agrees that if all the notes are paid as they respectively become due, he will acknowledge satisfaction of the judgment; but if either note be not paid at maturity, the sums received (if any) shall be credited on the judgment; he may treat the agreement as rescinded, and proceed to enforce payment of the original indebtedness, when any note is not paid at maturity.</p> <p>The enforcement of the contract is not in the nature of a penalty. The creditor may, therefore, refuse to receive payment of the notes after the day on which they fall due.</p> <p>A court of equity will not relieve the debtor from the strict performance, to which, it seems, both parties to such an agreement will be held.</p>

This action was brought by the plaintiff, upon an alleged agreement with the defendants, by which he was employed as their clerk and agent, from April 1st to December 1st, at $60 per month. On the 30th day of June, the plaintiff was discharged by the defendants, and left their employment.

This suit was brought by the father of a child of the age of seventeen months, to recover damages for injuries sustained by the child, in being run over by a horse and wagon in charge of the defendant’s servant. The proof showed no want of care in the servant. At the time of the accident, the child was sitting in the track made by the wheels of vehicles passing and repassing, in 28th street, near the 11th avenue, in this city.

<p>Where, in the court below, additional evidence was admitted, after the parties had once rested, but before the case had been finally submitted, and while they and their witnesses were all present; held, that the matter was in the discretion of the justice, and that a judgment will not be reversed for such a departure from the usual course of proceeding, the opposing party not having been prejudiced thereby.</p> <p>In determining his own manner of using the public highway, a party has a right to rely upon ordinary prudence in the use of it by others, not to justify carelessness in himself, but to warrant him in pursuing his own business in a convenient manner.</p> <p>Accordingly, the proprietor of an omnibus line is liable for an injury resulting from either the negligence of the driver in his employ, or from the defective construction of a stage used on the line, where the party receiving the injury has not contributed to it by his own fault.</p> <p>Upon a question of fact, the finding of a justice is the same in its effect as the verdict of a jury.</p>

<p>Action for wharfage. The case came up on appeal by the defendant, from the marine court, where judgment was entered for the plaintiff. The facts appear in the opinion. It may be stated, however, that there was a communication to the pier, from the side of the boat, through and over similar vessels lying alongside; and that, in some trifling instances, oysters had been thus landed on the pier. But the only usual and convenient manner of loading and unloading the boat, was to take her cargo in by the stern, and discharge it over her bow, direct upon the bulkhead, to which she lay bow on, and permanently fastened.</p>

<p>This was a suit for medical services. The plaintiff was a physician. On the trial before referees, witness testified to having seen him at the defendant’s residence occasionally, in professional attendance upon his wife and child. A day book or journal, in which the plaintiff was in the daily habit of entering charges, and which contained the account upon which this action was brought, was then put in evidence, it having been shown that he had no clerk.</p> <p>The plaintiff produced witnesses, who testified that they had settled accounts with him, by his books, and had found them correct; some stating that their settlements were made before, and others after, the commencement of this suit. By other persons, it was proved that charges against them were correct, although not yet settled. Upon objection to a portion of the plaintiff’s testimony, a point was also raised, as to whether it was necessary that a witness, who proves the settlement of his account with the plaintiff, should, at the time of such settlement, have actually seen the books.</p> <p>The referees found for the plaintiff. From the judgment upon their report, the defendant appealed to the general term.</p>

<p>To establish a defence in an action for rent, on the ground that the agreement under which the premises were occupied, is void by the statute against gaming, it must be shown that the landlord, at the time the agreement was made with the tenant, was a party to the illegal intent, and let the premises in furtherance thereof.</p> <p>Where a landlord lets premises for a certain term and for an illegal purpose; and before the term expires, the tenant surrenders the premises to a third party, who agrees with the landlord to take them, and to pay at the end of the term the rent contracted for with the original tenant; it does not follow as matter of law, that the-agreement with such third party is also tainted with illegality.</p> <p>It seems that the statute regulating the taking of depositions de bene esse, and requiring the officer to insert therein every answer of the witness examined, which either party shall require to be included, is complied with by confining the direction to answers, leaving the officer to exclude questions in bis opinion illegal or irrelevant. And a party is not empowered by this statute to go into a course of irrelevant inquiry, and have answers thereto included in the deposition.</p> <p>Where the terms of an agreement, as expressed by the parties in their oral negotiation, and as finally settled upon by parol, are in evidence, it is doubtful whether the proving of such parol agreement requires the production of a written paper, to which parties, at the time of making the parol agreement, referred as a mere guide in settling the terms thereof.</p> <p>The simple order of admitting proof, is in the discretion of a referee.</p>

<p>This cause was heard upon the defendant’s appeal from a judgment entered against him in the marine court. A son of the plaintiff, residing with him in Delaware county, in this state, twenty years of age, in his employ, and traveling upon his business, took passage in this city for Kingston, on board of a steamboat in part owned by the defendant. After paying his passage, and depositing his trunk and hat box in a place on the boat designated by one of the hands, to whom the captain had referred him as the person who would take charge of it, he went on shore. Upon returning, within thirty minutes, the baggage was missing, and was never restored. The captain was immediately informed of the loss. The trunk and box contained, in addition to ordinary clothing, twelve dollars in silver money, cotton goods for pantaloons, a vest pattern, a type and marking ink, snuff box, and calico for a dress. The son was sworn as a witness, and testified that the clothing, (although his wearing apparel,) and the other contents of the trunk and box, were the property of his father. The recovery in the court below was for the value of the clothing, money, and all the articles enumerated.</p>

<p>The plaintiff, being tenant of certain premises under a hiring for one year, paid to the water commissioners the charge for the use of the Croton water therein, for that year. After four months, he gave up the possession, and the landlord relet the premises, for the residue of the year, to the defendant, who took possession and used the water. It was by the plaintiff’s agency in procuring the new tenant, that the reletting was effected. Held, that the defendant was not 'liable to the plaintiff, for any part of the water rate so paid by the latter, nor for the value of the water used, nor, in any form of action, for using the same.</p> <p>It is not proper for a justice, in a case before him, to volunteer and make amendments of the pleadings, not moved for by either party.</p>

<p>A defendant against whom a verdict had been rendered, in an action for fraudulent misrepresentations of the credit of a person to whom the plaintiff was thus induced to loan money, which he lost in consequence, moved for a new trial, on the ground of newly discovered evidence, explaining and adding to conversations from which the alleged misrepresentations were inferred, or proving other parts of such conversations, and altering their effect. Held, that the newly discovered evidence was neither cumulative nor impeaching, so as to justify the refusal of a new trial.</p> <p>In actions of this nature, similar acts are admissible in evidence, whether occurring before or after those for which a recovery is sought.</p> <p>Such acts must have been of a like fraudulent character; but after similar representations have been shown, fraud in making them may be inferred from other matters proved in the cause.</p> <p>A witness’ opinion of a conversation, if objected to, should be excluded; but the objection must be made at the trial, to enable the opposite party to remove it, by requiring the witness to state the conversation itself, as nearly as he can remember it.</p> <p>The same terms, namely, payment of costs, are imposed in granting a new trial upon newly discovered evidence, as upon the ground that a verdict is against the weight of evidence.</p>

This action was brought against the defendants, as common earners, to recover the value of goods delivered for transportation under special contracts in the following form : New York, August 10th, 1848.—“This memorandum of agreement between the Western Transportation Company and Hamlin & Day, of Chicago, Ills., witnesseth, that the said Western Transportation Company agree to forward the goods of said Hamlin & Day, from New York to Chicago, Ills., as follows : or sugar,…

The defendant was sued in the marine court, by a short summons, issued upon filing a bond, with proof that the plaintiff was a non resident of the city and county of New York. The defendant appeared on the return day and excepted to the security filed, on the ground that the surety in the bond resided in Kings county, was not a freeholder in the city of New York, and had not justified.

The plaintiff complained against the defendant, in the marine court, and alleged, that on a day specified, the defendant contracted to deliver to him 150 barrels of sugar, at 5⅝ per pound; that he had delivered 104 barrels pursuant to the contract, and refused to deliver the balance. Damages claimed were a sum certain as the difference in value on 46 barrels, between the contract price and the market value at the time of the plaintiff’s demand.

This suit was brought in one of the district courts, to recover rent from a surety upon an ordinary agreement between landlord and tenant. The defendant pleaded, (1,) an eviction of the tenant, and (2,) that the agreement had been rescinded and the tenancy terminated by consent.

<p>To entitle a plaintiff to commissions on a sale, it is necessary, first, that he should establish his authority to act as the agent or broker of the defendant, either by previous employment or by the acceptance of his agency and the adoption of his acts; and secondly, he must show that his agency was the procuring cause of the sale.</p> <p>Where a Broker, duly authorized to sell property at private sale, has commenced a negotiation with a purchaser, the owner cannot, while such negotiation is pending, take it into his own hands and complete it, either at or below the price limited, and refuse to pay commissions. But the employment of a broker does not preclude the owner from making efforts to sell; and if he effect such sale to a purchaser not procured by the broker, he wifi not be liable for commissions.</p> <p>A broker, having been employed to sell property at public auction, is entitled to be paid for his expenses and services in bringing it into notice, although the property is afterwards disposed of at private sale.</p>

The plaintiff in this action, claiming to be a mortgagee of personal property, sued the defendants, one of whom was a constable, and the other a judgment creditor of the mortgagor, alleging a conversion of the property by them, in levying upon and selling it under an execution. The cause was tried in the sixth district court. The mortgage was produced, and the mortgagor testified that it had been executed by him.

This case came up upon the plaintiffs’ appeal from a judgment entered against them, at special term, upon the verdict of a jury. The facts are fully set forth in the opinion.

This was an action upon a promissory note' for $637 28, The answer alleged, 1st, payment, and, 2dly, that the plaintiff was “indebted to the defendant in upwards of $1,000, for freight upon 1,500 logs and 150 piles of dock timber, or thereabouts.” The set off and counter claim in the answer, and the plea of payment, were controverted in the reply. The cause was tried before a referee, who reported against the defendant upon the first branch of the defence.

This was an action for rent. The plaintiff complained upon a lease,, as follows : That on or before the first day of November, 1847, the defendant agreed with the plaintiff to hire and take from the said plaintiff the house and premises known as No. 107 St. Mark’s Place, Eighth street, in the city of New York, for the term of eighteen months, commencing on the first day of November, 1847, and ending on the first day of May, 1849.

This was an action to compel specific performance of an agreement for the sale to the plaintiff of land in the city of New York, made by a third person as agent of the defendant.. A broker, attending an executor’s sale of land, purchased five lots in the name of the defendant, considering that at the price at which they sold, the defendant would probably like to take them.

This action was brought by a wife against her husband, for a divorce. Upon the plaintiff’s motion, on notice to the defendant, an order was granted, directing him to pay a specified sum each month, to be applied to the plaintiff’s support, and subsequently a further order was made, on like notice, directing him to file security for the payments, on pain of a sequestration of his property.

<p>Where a plaintiff, having agreed to make certain furniture for a third person, to be paid for in cash, when it was finished, upon its completion made out the bill to him, and he being unable to pay at the time, the plaintiff refused to deliver it upon his credit; but at his request went with him (expecting to receive payment) to the defendant, who took the bill and promised to pay it, and thereupon the plaintiff charged the furniture to the defendant, and delivered it to the person for whom it was made; it was held, that the defendant was liable upon his promise as upon an original undertaking.</p> <p>Where a promise of this kind is in form absolute, to pat, the court must, as matter of law, hold it to be original, unless it further appear, as a matter of fact, that it was made and intended as collateral; and where the whole credit is given to the promissor, he is responsible.</p> <p>If an assignor of a thing in action, called to prove the plaintiff’s title, and as his witness in the cause, is made the defendant’s witness for the purpose of an examination on his voir dire, and testifies to facts showing the plaintiff to be the real party in interest, the defendant is so far bound by his declarations as to preclude an exception to his admission as a witness, although some circumstances of suspicion may attach to the assignment.</p> <p>Admissions of an assignor, made after the assignment, being incompetent, there is no error in the exclusion of a general question, not limited as to time, intended to obtain proof of an assignor’s admission.</p> <p>The testimony of a person in possession of a written instrument within a few days of the trial, may be sufficient to prove the loss without calling a party himself to show that it has not been recovered.</p> <p>A variance between a pleading and the proof, the first alleging delivery of goods to the defendant, and the latter showing delivery to a third person on the defendant’s credit, is not ground for a reversal of a judgment, when the merits have been investigated and justice done between the parties.</p>

<p>Where a vendor voluntarily delivers goods, without any reservation, and designedly leaves them, of his own free will, in the vendee’s exclusive possession, for a period of time, he waives simultaneous payment, and the title passes to the vendee, unless such delivery or waiver is procured by fraud.</p> <p>It seems, however, that where the goods sold are of great bulk or. large in quantity, so that the delivery is necessarily at different times, or occupies a considerable period in its progress, the vendor would not be bound to insist upon payment before the whole bulk or quantity was delivered or tendered; but that even in such case, if he voluntarily leaves the property in the possession of the vendee after the delivery is complete, the title vests, especially if on requesting payment he is put off, and acquiesces in the postponement</p> <p>Where a defendant admits in bis answer, his participation in an alleged trespass, and the judge at the trial neglects to instruct the jury that such admission is made, a remark in the charge, that it is for the jury to say how far the testimony proves the defendant guilty, when it appears to the court on review that the evidence does not implicate him at all, is not an error of which the defendant can complain.</p> <p>Whether or not the rule of pleading be now as formerly, that facts should be alleged “ according to their legal effect,” it does not follow that when the very facts, and all of them, which it is necessary for the defendant to prove to entitle him to the judgment prayed for, are stated in the complaint and are admitted or proved, the plaintiff may not recover thereon, whether the legal effect of those facts be alleged or not.</p> <p>In an action for trespass, where the facts are, that two of the defendants actually committed the act, and that a third defendant instigated and employed them to do it, and it is sought to charge the trespass upon all the defendants, it seems, that an allegation of the instigation, &c., in reference to the third defendant, is a better compliance with the requirements of the code (§ 142, sub. 2) than an averment of the legal conclusion that he committed the trespass.</p> <p>Whether, when a defendant, by concealment and misrepresentation, induces a servant to admit him to the plaintiff’s house, such admission by the servant is any defence to an action of trespass for entry, &c. ; quere ?</p> <p>For an involuntary trespass, or one committed under an honest mistake without intent to injure, the damages should be confined strictly to compensation for the injury sustained by the plaintiff ; and in estimating the amount of such damages, all the particulars wherein the plaintiff is aggrieved, may be considered, whether of pecuniary loss, pain, insult or inconvenience.</p> <p>But unless the trespass is willful, or committed in reckless or wanton disregard of another’s rights, or accompanied by circumstances showing malice or a corrupt motive, vindictive or exemplary damages should not be allowed.</p>

<p>The plaintiffs agreed to sell 103 barrels of rye to R., to be delivered by them to him in New York, and to be paid for by him in cash on delivery; but by a change in this arrangement it was agreed that R. might have the rye converted into flour, to be returned to the plaintiffs at their landing at Poughkeepsie, and then to be by the plaintiffs brought to New York and delivered to R., in performance of the original agreement of sale. Upon this second arrangement, R. agreed with the defendant to receive the rye from the plaintiffs, flour it, and return it to them. Afterwards, R., being unable to pay for the rye, gave up his contract, the plaintiffs to stand in his stead in relation to this rye, under the agreement with the defendant for the flouring. The defendant was notified of this change in relation to payment for flouring, and assented to it, and the plaintiffs assured him, that on his delivering the flour at the plaintiffs’ landing, they would pay him for flouring. Instead of so delivering it, the defendant shipped the flour to New York, where 14 barrels were sold. In an action of replevin by the plaintiffs, to recover the remaining 89 barrels, it was</p> <p>Held, 1. That as something remained to be done by the plaintiffs, namely, bringing the flour to New York, before it would, pursuant to the agreement between R. and the plaintiffs, become the property of R., the title thereto continued in the plaintiffs. 2. That R. had the right to make the flour liable to the defendant’s claim for milling, but that beyond that, he had no power either to pledge or sell it.</p> <p>Held, also, that the defendant’s contract being, not only to flour the grain, but to deliver it at" the plaintiffs’ landing, he was not entitled to payment until such delivery Was made; and that it was at the place of delivery that he might insist upon payment, before actually parting with the possession.</p> <p>A misuse of property pledged, or which is subject to a lien, by attempting to sell it and sending it to a market for that purpose, without notice to the owner, and without offering to deliver it or demanding payment of the lien, is in itself a conversion of the property, destroys the lien, and renders unnecessary a demand by the owner before commencing a suit to obtain the possession.</p> <p>An amendment of the pleadings will not exclude, at the trial, a deposition previously taken in a cause, where the amendment simply changes the technical issue, without altering the true issue between the parties.</p> <p>If, in consequence of the amendment, either party wishes a further examination of a witness named in the deposition, a motion should be made for á further commission ; or if his testimony is inapplicable to the new issue, a motion to suppress the deposition would be proper.</p> <p>General evidence of the indebtedness of a bailor to the bailee, not confined to the property upon which it is sought to prove the existence of a lien in favor of the bailee for his services, is not competent.</p>

<p>Appeal from the sixth district court, where the plaintiff obtained judgment for work done and materials furnished. The facts are sufficiently indicated in the opinion.</p>

<p>Two partners, contemplating a dissolution of their partnership, agreed to divide their stock, and that the machinery belonging to them should be given to the party who would give the most for it. They accordingly separated the stock into two portions, allotting one to each; but before the arrangement was completed, one partner complained that some of the stock was missing, and a quarrel interrupted the execution of their design. One of the parties then left their place of business in charge of the other, caused a demand to be made for half of the property, and recovered the value thereof in a justice’s court. Held, that the judgment was erroneous, in relation both to the stock and the machinery, and that enough had not been done to vest in the plaintiff a separate, exclusive property in the subject of the suit.</p> <p>One partner or tenant in common of chattels, has nó right to demand a delivery to himself of the whole or one half of the property. Both are entitled to the possession, and neither to the exclusive possession of the whole or of any part.</p>

<p>An act of the state of Kentucky authorized certain persons to raise, for the benefit of a college, §100,000 “by lottery, in one or more classes, as to them should seem expedient.” They were required to execute a bond to the state, in the penalty of §100,000, conditioned for the faithful discharge of their duties; also to pay “all such prize or prizes as might be due agreeably to the scheme which they might agree upon and publish,” and provided such scheme should not reserve more than 20 per cent., and afterwards to pay to the college all sums which might be due in consequence of the drawing of the lottery. They were also authorized to sell “ the scheme, or any class or classes of said lottery,” for not less than 10 per cent, on the amount proposed to be drawn, to any person who should enter into a bond to the state, with good security, conditioned faithfully to comply with the terms of the act.</p> <p>The original managers gave the bond required of them,but, without doing any thing further under the act, they sold the whole grant to other parties, who entered into a bond to the state, in the penalty of $8,500, with the defendants as sureties.</p> <p>A drawing of the lottery was had, and one Lee held a ticket, which, according to the conditions of the scheme adopted by the new managers, entitled him to a prize of $8,000. Failing to receive the money, he sued the sureties upon the bond last mentioned, in the name of the Commonwealth of Kentucky.</p> <p>Held, that the act contemplated a responsibility on the part of the original managers; that they were bound to arrange and publish the scheme of the lottery, in a class or classes, and that then they might sell the same; that they could not sell the whole grant with the entire arrangement of the lottery ; that they having done so, no lottery could be drawn under the act; and that the defendants were not liable upon the bond.</p> <p>Held, also, that from the fact that the bond was given to the state and the lottery drawn under it, it does not follow that the state had a right to enforce it without reference to the statute, the bond being executed in pursuance of a statutory provision.</p> <p>There being nothing in the act permitting the purchasers from the original managers to sell out to third persons in whole or in part; to entitle the holder of a ticket to a prize, he must have shown that the. same was procured from the original purchasers, or from their authorized agents in their name.</p> <p>The breach of a voluntary bond given to a state to do some act for a third person, would not afford any substantial ground of damage upon which the state could recover. It would require some legislative authority for the taking of such a bond, before the state could recover upon it beyond nominal damages.</p>

This case came up on the plaintiffs’ appeal from a judgment in favor of the defendant, entered at a special term upon a verdict.

This was an action upon a bond executed by the defendants to the plaintiff, as follows : Know all men by these presents, that we, Horace F. Clark and David P. Hall, of the city of New York, are held and firmly bound unto Augustus Lyon, of the town, &c., and state of Connecticut, in the sum of six hundred dollars, lawful money, &c., for which payment, well and truly to be made, we bind ourselves, jointly and severally, &c. The bond then recited that a suit was pending in one…

<p>Where a written agreement was shown and read to the party, and she, knowing the contents, took a pencil to sign it, but found that her name had been subscribed by her brothel, who had himself signed as surety, and she thereupon delivered the agreement, stating that she supposed he had written her name, and it was all right ; held, in the absence of fraud or imposition, that there was a sufficient execution.</p> <p>It is conclusively presumed, where there is a written agreement, that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing; and therefore parol evidence of prior parol promises cannot be received, although one of the parties may have been grossly deceived by verbal promises, on the part of the other, which have not been performed.</p> <p>Although the terms of a lease bind the landlord to repair, his neglect to do so will not authorize the tenant’s abandonment of the demised premises, unless, by the terms of the agreement, the repairs were made a condition precedent to the obligation to occupy.</p> <p>The landlord’s failure to repair, where he is bound to do so by bis agreement with the tenant, will not amount to an eviction, but only to a breach of covenant.</p> <p>Where a landlord leases a house without covenants to repair, the tenant, finding it untenantable, cannot set up an eviction by the landlord, for suffering it to remain in that condition.</p> <p>A subsequent parol agreement to repair, where there is no new consideration therefor, is not binding: and the continuance of the tenant in the occupation, in such case, is not a sufficient consideration.</p>

This was an appeal from an order at special term denying the defendants’ motion to vacate an order of arrest. The facts are stated in the opinion.

The plaintiffs commenced this action by the service of a summons. Before the complaint was drawn, they moved for an order of arrest against the defendant. The affidavits used upon the motion showed that they had obtained judgment against the defendant, as the endorser of a promissory note.

This was an appeal by the defendant from a judgment entered upon the report of a referee, in favor of the plaintiff. The facts appear in the opinion..

The plaintiff sued the defendant in the marine court, as owner of a horse and cart, for the negligence of his servant in driving against and injuring a horse belonging to the plaintiff. The, plaintiff’s horse and cart were proceeding directly ahead of the defendant’s, when the former were turned and backed to the curb, and the wheels of the defendant's cart passed over the feet and against the legs of the plaintiff’s horse. The case was tried before a jury.

This suit was tried twice. Upon the first trial, the defendant had a verdict and judgment. The plaintiff appealed to the general term; but pending the appeal, the plaintiff moved, at special term, to set aside the verdict for certain alleged misconduct on the part of one of the attorneys.

The defendant in this suit was the proprietor of what is now known as a commercial agency, and as such, conducted a business which is described in the opinion of the court. He was sued by the plaintiffs for injuries to the credit and standing of their firm from a libel contained in the following words: “ Taylor, Hale and Murdock, Columbus, Miss. “ This concern does not seem to thrive here. M. is capable in some respects, but is not a successful manager.

This case has been tried three times. On the first trial the defendants recovered judgment, which was reversed by the supreme court, an appeal at that time lying from the common pleas to that court. The second trial resulted in a verdict for the plaintiff; but the cause was sent back to this court by the court of appeals, upon a technical error in the record, not involving the merits.

This suit was to obtain possession of personal property which had been taken by the defendants under an execution upon a judgment.

The action was brought by the assignee of a claim for money lent. The plaintiff offered the wife of the assignor as a witness. Objection was made and sustained by the court below. No other witness was offered.

This was a controversy relating to the ownership and earnings of a ship. The plaintiff obtained judgment for an interest of one sixth in the same, amounting to about $4,000. The defendant moved for a new trial at special term, upon a case. The motion was denied, and the decision thereon was affirmed at the general term.

The plaintiff, an. attorney and counsellor at law, complained against the defendant in the second district court, for services as an attorney and counsellor, in conducting his defence of a suit in the superior court. That suit was for the claim and delivery of personal property levied upon by the defendant under an execution issued out of the marine court. It was on the superior court calendar for five terms, and during the fifth term, was referred.

The plaintiff in this suit sued the defendants in the second district court for $100, being his wages as a seaman on board their brig. The defendants demurred to the complaint, on the ground that the court had no jurisdiction over the subject matter of the action. The justice sustained the demurrer, and gave judgment for the defendants, from which the plaintiff appealed.

These were actions of ejectment brought to recover certain premises situate in the city and county of New York, consisting of a farm at Bloomingdale and two houses and lots in the city, of which the defendant was alleged to he seized in fee.

<p>The was an action in debt, and was brought before the adoption of the code, to recover upon a promissory note, wffiich appeared to have been executed by the maker under seal. The note was drawn as follows :</p> <p>“ $168. New York, December 12th, 1837.</p> <p>“ On demand I promise to pay John A. Merritt, or order, one hundred and sixty-eight dollars, for value received.</p> <p>“Wm. H. Cornell, [l. s.]”</p> <p>The plaintiff, at the trial, having rested after producing evidence of the signature, the defendant moved for a nonsuit, on the ground that the seal should also have been proved. At the suggestion of the presiding judge, a verdict was taken for the plaintiff, subject to the opinion of the court upon a case to be made, with liberty to the court to order a nonsuit.</p> <p>The cause was argued before Judge Ulshoeffer, then first judge, (see note (b) in the margin, p. 336,) and before Ingraham and Dalt, JJ. Judge Ulshoeffer concurred in the opinion of Judge Ingraham, and Judge Dalt dissented, without delivering a written opinion. A motion was afterwards made by the defendant’s counsel, to set aside the judgment for an alleged irregularity. It was then urged that the note was more than six years past due; that the statute of limitations would have attached, if the note had not been under seal; that, therefore, a motive existed for affixing the seal after the delivery of the note; and that such should be the presumption, in the absence of proof of the sealing at the time of the execution. In deciding the defendant’s motion, the court made an order, in which, among other things, a re-argument was allowed upon that point, upon certain conditions, as it had not been raised by the defendant on the first argument. The suit was then settled.</p>

The papers in this suit have not been found by the reporter, and he has been unable to ascertain the names of counsel engaged in it. The form in which the cause came up to the general term cannot, therefore, be stated; but all the facts essential to an understanding of the points decided and discussed, appear in the opinion. (a)

<p>On the return day of the summons in this cause, the parties appeared in the sixth district court. The pleadings were put in and an adjournment taken to a future day. Within ten minutes, the defendant’s counsel returned to the justice’s desk and desk landed a jury, which was refused, the reason assigned heir, that the demand was too late, the case having been adjourned and the plaintiff having left the court. The defendant excepted to the decision. On the adjourned day the cause was tried upon the merits, and judgment directed for the plaintiff. The defendant’s application for a jury and his objection to the refusal of the justice to issue a venire, first came to the plaintiff’s knowledge upon the defendant’s appeal from the judgment.</p>

This was an appeal from a judgment for $2,881 21, entered at special term, in favor of one defendant against his co-defendants. The facts are stated in the opinion.

An attachment was issued against the defendant, McKenzie, in the superior court, for a contempt in refusing to testify before referees in a suit pending in that court between G. W. and J. C. Comstock, plaintiffs, and L. S. Comstock, defendant, and in a cross suit between the same parties. The order for the attachment provided that the said McKenzie be held to bail in the sum of one hundred dollars.

<p>One who finds a horse, takes possession of and uses him, so that he is injured, is hound to compensate the owner for such injury.</p>

This suit was commenced in the second district court, by a short summons, personally served upon the defendant, within the county of New York. On the return day, the plaintiff proved his case and took judgment. Within fifteen or twenty minutes after the judgment was entered, the defendant appeared and claimed that the hour named in the summons had not passed.

This was an appeal by the defendant, from a judgment, in favor of the plaintiffs, upon a referee’s report. The facts are stated in the opinion.

This suit was for an alleged conversion by the defendant, of a case of otto of roses and about one hundred bags of gum Senegal, which the plaintiffs, merchants in Marseilles, had consigned to their factor, one John Michael, for sale on commission in New York. The value of the property was stated at $4,000.

The plaintiff in this action obtained an order, at special term, sustaining his demurrer to the answer. The order was affirmed at general term, by an endorsement upon the papers in suit, of the words, “ with $10 costs.” The plaintiff then moved at the general term, on notice, to modify the direction contained in the endorsement, so as to allow full costs of an appeal,

The parties having appeared, the plaintiff complained for work and materials, and the defendant answered by a general denial, and alleged that his contract with the plaintiff had been rescinded. The defendant then objected to the process, on the ground that the cause of action was not stated therein. This objection was overruled, and an adjournment was taken.

The suit was commenced by attachment, which was applied for on the grounds, 1. That the defendants were indebted to the plaintiffs on contract; 2. That the defendants were about to depart from the city and county where they last resided, with intent to defraud their creditors; 3. That they had disposed of their property with the like intent.

<p>A servant, finding a chattel in the master’s house, (not being his property,) and retaining it by the master’s consent, may maintain an action of trover against a wrongdoer who converts it.</p> <p>Accordingly, where a servant woman found certain Texas notes in the house of her employer, who assumed their custody for her benefit, and entrusted them to the defendant for the purpose of ascertaining their value, &c., apprising him that she (the employer) was acting for the servant, and held the notes for her, and the defendant sold them and appropriated the funds to his own use; it was held, in an action brought in the names of the servant and her husband, for a conversion of the notes, that the defendant was liable for the value and interest from the time of their sale by him.</p> <p>Whether a house servant, who finds lost jewels, money or chattels in the house of his or her employer, acquires any title even to retain the possession, against the will of the employer ; quere ?</p>

The plaintiff’ sued the defendants upon a quantum meruit, for certain ornamental work and carving. It appeared that the plaintiff had been employed by the defendants to do a prescribed amount of carving upon two tables, for a stipulated price, to be paid when the work was finished.

The defendant pleaded a tender of a sum less than the claim, paid such sum into court, and produced testimony fixing it as the value of the services. The plaintiff offered to show the legal rates of cartage by a pamphlet copy of some of the city ordinances. This offer was rejected in the court below; and the tender being admitted, the defendant had judgment upon his plea.

An officer in the hank testified, that the defendant had but a few dollars therein at the date of the cheek, or at any time before the trial, except that a deposit was once made by him, but suffered to remain less than a day. It was also said by the bank officer, that the defendant would not have been allowed to overdraw Ms account. The plaintiff relied upon these facts, without showing a presentment at the bank and demand of payment before suit.

<p>In an action for obstructing a right of way, where the defendant answers by a general denial, the title to real estate cannot be said to come in question so as to oust a justice’s court from jurisdiction, if the defendant, being called as a witness, in the course of his testimony, proves on his own behalf the plaintiff’s title. The defendant himself having shown the title, it cannot be regarded as disputed, within the meaning of the statute, so as to oust the justice of jurisdiction.</p>

The plaintiff in this suit, having recovered a judgment against the defendant, Martin, as administrator of an estate, and having obtained leave of the surrogate, issued execution, which was returned unsatisfied. The surrogate, upon the requisite proofs, then ordered the usual bond, executed to the people by the defendant, Martin, and by the other defendants as his sureties, upon obtaining letters of administration, to be prosecuted.

<p>Appeal from the marine court, where the plaintiffs obtained judgment. The facts are given in the opinion.</p>

This action was brought'in the sixth district court, to recover for the services of a young man, who had been bound to the plaintiff, as an apprentice, but left him, and entered the employment of the defendant. By the indentures of apprenticeship, the young man appeared to be still in his minority; but the defendant proved him to be upwards of twenty-one years of age. The plaintiff had judgment, and the defendant appealed.

This was an appeal from one of the district courts, where judgment was obtained for the plaintiffs. The defendant, on the appeal, produced, for the first time, a release of the claim sued upon, executed by the plaintiffs before the action was commenced. A person appeared and defended the suit at the trial, for and with the authority of the defendant.

<p>The code has not rendered a guardian or next friend, in whose name a suit is prosecuted for an infant, a competent witness for the plaintiff. He is still excluded, being a party to the record.</p> <p>Where evidence, erroneously admitted, tends directly to establish the plaintiff's case, although the issue might have been determined in the same way upon the other testimony, the error is not a “ technical ” one, but affects the merits, and cannot be disregarded in reviewing the judgment.</p> <p>This court has no discretion, in reversing a judgment, to order a reversal without costs.</p>

This suit was brought in the sixth district court. The summons was not served by a constable, but by a person specially deputed by the justice for the purpose, and was returned with a written statement that the service had been made. Both parties, on the return day, appeared in court. The defendant’s counsel urged that the justice had no right to depute a person to serve a summons, and that the service was not legal. This objection was overruled, and an exception taken.

The plaintiff in this suit brought an action by attachment in the marine court, against John Doe, master of the English ship “ Vivid,” for wages as a sailor. The defendant here, appeared as attorney in that action, and obtained a discharge of the attachment by executing a bond to the constable, conditioned that the obligor, Charles Edwards, should pay any judgment, with costs, charges, and legal expenses, which might be recovered in the said action.

The plaintiff hired certain premises from, the defendant, for one year, from, the first day of May, 1852, at the rent of $500, payable every two months, in advance, and deposited with him $41 66, taking a receipt, in which the defendant (the landlord) agreed to hold the money as security for the performance of the tenant’s contract, and to apply it finally to the advance payment, which would accrue on the first day of March, 1853.

<p>This was an appeal from a judgment entered upon the report of referees. By an agreement between the parties, the plaintiff became a copartner with the defendants in a victualing saloon, which had been conducted by them. No capital was contributed by the plaintiff, but he was to pay the defendants interest on one half the capital already invested, i. 6., the value of the stock, fixtures, the value of the leases, the good will of the business, &e. The defendants were to do all repairs at their own expense, and at the end of the year the plaintiff was peaceably to give up possession of the premises to the defendants. The business continued after the end of the year, upon the same terms, till the plaintiff separated from the defendants. He then brought this suit in the form of an action at law, to recover one half of the value of furniture purchased during the term of the copartnership, and one half the value of the good will of the business.</p> <p>The cause was referred, and the referee reported in. favor of the plaintiff upon both branches of his claim. The amount awarded to him for the furniture, was fixed by deducting fifty per cent, from the cost, as it appeared stated upon the hooks of the firm. The defendants presented no evidence as to the worth of the furniture.</p> <p>A motion was made at special term, before Woodruff, J., to set aside the report. The following is an extract from his opinion upon the right of the plaintiff to recover for the good will:</p> <p>“ I perceive no foundation, whatever, for any claim for the value of any good will, if there he any such thing as good will of the business disconnected with an actual interest in the place where it is carried on. The plaintiff agreed to carry on business with the defendants for one year, and then to leave it in their hands. His attention and services may have improved ¿he business ; if they did so, that may have been the very motive which induced the defendants to enter upon the original agreement; at all events, they were in the possession of the business before he went there ; they admitted him to a participation in its profits on condition, among other things, that he would peaceably leave the possession to them at the end of ¿he year; so that without stopping to inquire whether there is any such thing as the good will of a business separate or detached from the place itself in which it is carried on, it is sufficient to say—</p> <p>“1st. If it was attached to the place, he was by the agreement bound to leave it, and the defendants were not bound to pay him for doing so.</p> <p>“2d. If it was not thus attached to tho ¡place of business, if it could be detached and used separate therefrom, (which to me at least is a novel suggestion,) the defendants have no more taken possession of it than the plaintiff. Both are carrying on the same business, and the defendants might as well ask the plaintiff to pay them for it, as joint property used by him, as he make the present claim upon them. The referees, therefore, erred in admitting any evidence of such value, and in making any allowance for such good will.”</p> <p>The report was confirmed, with the condition that the plaintiff deduct from his recovery $400, allowed for the good will. This condition was accepted, and judgment was entered for the value of the furniture as reported due to the plaintiff. From this judgment the defendants appealed.</p>

This was an action in debt, commenced before the passage of the code, against the defendant, Barber, impleaded with the defendant, ¥m. W. Reed, upon a judgment recovered against them in the supreme court of the state of Michigan. The declaration was in the usual form.

This was an appeal by the plaintiff from an order entered at special term, denying a motion to set aside the report of a referee. The facts are stated in the opinion.

<p>Where a single covenant or agreement is broken in four particulars at the same time, the plaintiff cannot maintain four separate actions thereon, in which each breach is stated as a separate cause of action.</p> <p>A recovery of judgment and satisfaction in one action, is a bar to any other action for breaches which had occurred when the first action was brought.</p>

This case came up on the defendants’ appeal from a judgment against them entered upon a referee’s report, and upon exceptions to his ruling in refusing to nonsuit the plaintiff. The facts are given in the opinion.

This was an appeal by the defendants, from a judgment for §500, entered against them, under the direction of a single judge at special term, upon the verdict of a jury. The questions determined at the general term, arose upon the denial, by the presiding judge at the trial, of a motion for nonsuit, and upon exceptions to his charge. The facts are fully set forth in the opinion.

This was a motion for a new trial made by the defendants at the general term, in a suit commenced under the old system of practice, and in which the plaintiff had twice recovered a verdict. The opinion contains the facts.

This was an action for damages, laid at $12,650 25, upon the breach of a contract for the sale of one hundred and fifty casks of madder. The agreement was concluded between the defendant and the plaintiff, William P. Dana, through the agency of a broker.

This was a suit to recover the possession of personal property, levied upon by the defendants under an execution and judgment against a third person. The plaintiffs claimed the goods under a chattel mortgage, given to secure to the plaintiffs the payment, by the mortgagee, of a sum named therein.

The plaintiffs in this case were merchandise brokers in the city of Baltimore. The defendants resided in St. Louis; and one of them (Chouteau) being temporarily in Baltimore, called at the plaintiffs’ counting room. Being shown a sample of indigo, which the plaintiffs stated that they wished to sell, the parties went to the store of Wirgman, a commission merchant, where the article was, and there met one Tully, of Philadelphia, who was the owner.

This was an appeal from an order denying a motion for an attachment against a witness, as for a contempt of court, in disobeying a subpoena. The writ was served at about 12, noon, on Saturday, returnable before a referee at 3½ on the afternoon of the same day. The witness had closed his house, and his family were, at the time of the service, already on board the steamboat for Long Branch.

This was an action of assumpsit, brought before the adoption of the code, by the payees of a bill of exchange against the drawers. The first trial took place before Ingraham, First J., and resulted in a judgment of nonsuit, from which the plaintiffs appealed. The cause was heard at a general term, and the court directed a new trial. This decision was made in 1851.

<p>Where property is wrongfully detained, the owner may assign his title to the proerty, and the assignee, after a fresh demand thereof, may maintain an action, in the nature of the action of trover.</p> <p>A demand from the directors of a corporation, who are common carriers, is not necessary in such case, when the agents of the corporation, of whom the demand was made, are charged with the whole duty of receiving, keeping, and delivering property, had by the corporation for transportation.</p> <p>Accordingly, where a passenger on a rail road, having lost the check of his baggage, applied for the latter, to one of the company’s employees at the station, who replied that the check or proof of the property by affidavit, must be produced ; and the passenger afterwards assigned the baggage to the plaintiff, who, in company with the passenger, demanded it anew of a baggage master at the station, who represented that it was not in the defendants’ possession; held, that the plaintiff’s right of action, against the company, for the value of the baggage, was complete.</p> <p>It is not erroneous to reject evidence as irrelevant, merely because a state of the proofs might subsequently arise which would render the evidence pertinent and proper; although, when counsel avow an intention to supply testimony, in the further progress of the cause, which would give pertinency to the question objected to, the court, in the exercise of that discretion which regulates the order of proofs, may properly allow an immediate answer.</p>

The defendants in this action were sued in the marine court for damages, laid at $250, by reason of a collision between their steamboat and. one belonging to the plaintiffs. The testimony was voluminous, and numerous points were raised and discussed in the arguments of counsel, upon the appeal taken by the plaintiffs from the judgment entered against them in the court below.

This was an action in the first district court, brought by the owners of a vessel, for freight from Boston to New York. The defendant, in the court below, was permitted to set off and claim by way of recoupment, premiums paid by him to effect a further insurance upon his goods, in consequence of an alleged wrongful deviation in the voyage, by taking the vessel to Piermont before landing here.

The parties to this suit held the relation of landlord and tenant. During the tenancy, the landlord entered upon the demised premises, and made alterations and additions, involving the necessity, among other things, of taking down and replacing a stairway. The tenant brought an action of trespass, in the marine court, and recovered a judgment, from which the defendant appealed.

<p>When the assignor of the plaintiff, is examined as a witness on behalf of the plaintiff, under § 399 of the code, the defendant can offer himself as a witness to the same matter only, to which the assignor has been examined.</p> <p>But when the assignor testifies, not only to the performance of work, labor, &c., and the price or value thereof, but also to the amount of payments made by the defendant on account, and the balance remaining due, the defendant may offer himself, to show that a greater amount has been paid, and when so offered, he must be received.</p> <p>A claim for a balance of $86, for work and labor, the aggregate of which work and labor amounted to $400, reduced by payments to the sum first named, does not create a case of mutual accounts, within the meaning of the statute defining the jurisdiction of justices’ courts. Payments on a claim are not, in any proper sense, items of an account in favor of the defendant. The account, although reduced by payments, is on one side only, within the meaning of the statute.</p> <p>It is otherwise, when the defence seeks to set off items arising in a course of mutual dealing, which themselves constitute an affirmative claim in the defendant’s favor, and which have not been specifically appropriated, as payments, to the reduction of the plaintiff’s claim.</p>

This was an appeal by one of two copartners, from a judgment entered against them in one of the district courts. The facts appear in the opinion.

<p>Tito plaintiff in this action, sold and delivered certain personal property to one Jacob Raw, for $180, of which $150 were paid in cash on the execution of a bill of sale, and upon the delivery of the goods. It was provided in the bill of sale, that the balance, thirty dollars, should be paid on a specified day, and that, upon such payment, the title to the goods should become absolute in the purchaser; but, in default of the payment, the plaintiff was empowered to take possession, and dispose of them. Subsequently, Raw sold the chattels to the defendant, apprising him, as it would appear, of the plaintiff’s lien, and allowing him to retain $30 to discharge it. The plaintiff, however, was not paid at the time appointed. He then caused the goods to be demanded of the defendant, and commenced this suit in the second district court for the value, to the extent of his interest therein, thirty dollars. Other facts appearing at the trial, will be found in the opinion of the court.</p> <p>The plaintiff recovered a judgment, and the defendant appealed.</p>

This action was brought against the maker of a promissory note for $600, originally delivered to the payee in payment for lumber. The note was by him transferred, with other paper, to the plaintiffs, before it became due, to be by them collected and applied on account of a pre-existing indebtedness of the payee, to the plaintiffs.

<p>This action was brought by the plaintiff, as the assignee of a claim upon an account between one Glover and the defendant. The cause was referred for trial, and the referee reported in favor of the plaintiff, for §833 50. The defendant applied for a new trial, upon exceptions to the ruling of the referee in admitting testimony. The points raised on the argument are sufficiently stated in the opinion.</p>

Appeal by the defendants, from a judgment for $1,583 95, entered upon the verdict of a jury, under the direction of a single judge, at special term. The facts appear fully in the opinion.

This was a suit upon a judgment. The complaint alleged that this court, upon notice to the defendant, had granted leave to commence the action; that on or about the sixth day of November, 1840, the plaintiff recovered a judgment in the said court against the defendant, for $465 81, which judgment remains in full force, and not satisfied nor annulled, and that the defendant is indebted to the plaintiff thereon in that amount, with interest.

This case came up on the defendant’s appeal from a judgment entered at special term, upon the verdict of a jury, in favor of the plaintiff, for $266 16. The facts are given in the opinions.

<p>An action at law, cannot he maintained to recover against, an assignee of property assigned for the benefit of creditors, a judgment for debts due to one of the creditors, on the ground that the assignee has been guilty of a breach of trust in neglecting to collect and apply in discharge of the trust an amount due upon the sale of the assigned property.</p> <p>The remedy in such' a case, is by a suit in the names or for the benefit of all the parties beneficially interested, and in which the interests of all the creditors shall be protected, and in which the court may exercise its equitable jurisdiction, and compel the trustee to account for and pay over the funds in his hands, and proceed to execute the trust; or replace him by a new trustee ; or direct, summarily, that a receiver be appointed, with power to collect the outstanding debts, and apply them as provided in the assignment; or if the fund has been impaired by the neglect of the trustee, require him to make good the loss.</p> <p>The code has not abolished the distinction between legal and equitable relief. There is but one form .of action, whether the relief sought be legal, or equitable, or both; but a plaintiff must so frame his complaint as to enable the court to administer the particular relief to which he may be entitled.</p>

This was an action against the surety upon a bond. Judgment for the sum named in the condition of the bond, ($500,) together with interest and costs, was entered for the plaintiff át special term. An appeal was taken by the defendant. The facts relating to the points decided appear in the opinion of Woodruff, J.

This suit was brought by the treasurer of the New York Hospital, to recover the penalty provided in § 3 of the act relating to the harbor masters of this port, passed March 16, 1850. (Laws of 1850, chap. 72, p. 81.) The defendant was the owner of a boat or scow, having a deck, but which, the witnesses testified, was not a sloop, schooner, or ship.

The plaintiff in this action was an auctioneer, and was employed by a constable to sell a small stock of boots and shoes The defendant became the purchaser; the terms being cash, and the goods to be immediately removed. The plaintiff paid over to the constable the sum for which the goods were sold, and then repeatedly called upon the defendant, who on several occasions promised to pay.

The following is the decision of Woodruff, J., at special term: “ The answer avers, that the note in question was payable in terms to the defendant by the description, “ R. Beman, Treasurer,” and was endorsed by him, “ R. Beman, Treas. that he was, in fact, treasurer of the Union Manufacturing Company; and that it was received and endorsed by him as such treasurer; and that he was authorized by said company to endorse the note to the plaintiffs as such treasurer; all of…

This was an appeal from an order made at chambers, denying a motion of the defendant’s attorney to vacate the satisfaction of a judgment against the plaintiff. The grounds of the application are stated by Daly, J., who delivered the opinion of the court.

The defendants in this suit, intending to put up a building, had plans and specifications prepared, and then, through their architect and otherwise, procured the usual estimates from several masons. Among the propositions submitted, was one from the plaintiffs; and it was found that they offered to contract for the erection of the building upon terms lower than was proposed in any other application.

The plaintiff in this action obtained a judgment in the sixth district court, against the defendant, for damages for the detention, by the latter, of a small wooden structure or tenement, described in the opinion which follows. The plaintiff claimed title to the property as the purchaser under a sale upon an execution issued pursuant to a judgment of a justice’s court, against the original owner.

Appeal by the defendant from a judgment of the marine court. The plaintiff had complained for repairs to a carriage. The defendant answered: 1. That by the terms of his original purchase of the article from the plaintiff, the latter was bound to keep .it in good order, which had not been done; 2. That the repairs were poorly executed; and 3. The defendant claimed to recoup his damages for the unreasonable detention of the carriage.

The plaintiff, on the 28th day of September, 1852, caused a summons against the defendant to be issued from the fifth district court. It was served on the defendant the following day, and was returnable the ensuing sixth of October. On the return day, both parties appeared before the justice, by their respective attorneys.

Action in the second district court, for a balance alleged to be due to the plaintiff, for two years’ services as a morocco dresser. The defendant pleaded a denial and set off. A parol agreement was put in evidence, from which it appeared that the plaintiff had been employed for the two years, at a stipulated rate of compensation. The services of the plaintiff were proved. A judgment was entered for him, and the defendant appealed.

This action was 'commenced in the marine court, by a voluntary appearance of the parties, 'without process. The complaint was, “for work, labor and services, and for commissions on saW of vessel, to wit, the Boston,’ damages $100.” The defendant interposed a general and specific denial.

The complaint in this cause alleged that the plaintiff and the defendants had formed a copartnership association, called The German Book Printers’ and Authors’ Society, having for their principal object the publication of a newspaper, styled The New York Evening Gazette. The association was governed by a constitution, in which it was provided, among other things, that each member should contribute, by instalments, $100 to the capital stock.

This cause came on for argument upon issue joined on a demurrer to the complaint, and by special order of the court was heard before the full bench in general term. The facts are stated in the opinion.

This was a proceeding under the act for the better security of mechanics and others, known as the lien law of 1851. The claimant, (plaintiff,) who” was a carpenter, had effected a lien upon buildings situated at the corner of 8th Avenue and 48th street, in this city, of which the defendant was the owner, by filing a notice pursuant to the sixth section of the act. The parties appeared in the marine court, the owner having been served with the notice prescribed in § 4.

Motion to strike out part of a complaint served in an action or proceeding under the lien law of July 11, 1851, commenced against the owners as defendants, by their original contractors as claimants. The facts appear sufficiently in the opinion.

The defendant in this suit, being the owner of six lots of land in the city of New York, agreed in writing to sell them, for the sum of $18,000, to one Peter Kahoe, a builder,-who agreed to proceed immediately to erect dwelling houses thereon, of a prescribed pattern, to be completed within a specified time. The defendant further agreed to advance to Kahoe $24,000 in twelve instalments, each payable at a certain stage in the progress of the buildings.

This was an appeal by the plaintiff, from a judgment entered against him by the direction of a single judge at special term, upon the report of a referee. The issue was joined under the mechanics’ lien law of 1851. The facts bearing upon the points decided, appear in the opinion.

Thus plaintiff in this suit obtained a judgment in the marine court, against the defendant, as the owner of a building in the city of New York, for materials furnished to a contractor, who was employed by the owner in the erection. The proceeding was under the act of 1851, “ for the better security of mechanics,” &c. An appeal was taken to this court. The facts, so far as they can be ascertained from the return, are given in the opinion.

Appeal by the defendant (owner) from a judgment entered against him in the sixth district court, in favor of the plaintiff (claimant). The facts, so far as they appeared .on the appeal, are given in the opinion.

The plaintiff commenced a suit, alleging in his complaint that he was the owner of a certain block of houses; that three liens had been docketed for work and labor performed towards their erection; that upon the two first liens, no proceedings had been taken by the claimants to bring them to a close ; that, as respects the last, a notice had been served requiring the plaintiff to appear in the marine court, and submit to an accounting and settlement; and that the two liens…

<p>The question considered in this case arose upon a motion made therein at special term. The opinion gives the facts.</p>

This was an action against the defendant, (the owner,) under the mechanics’ lien law of July, 1851, to recover a sum claimed to be due to the plaintiff from» one Nehemiah Hand, the contractor. The case was tried in the sixth district court, where judgment was given for^the claimant, and the- defendant appealed. The facts relating to the points decided appear in the opinion.

This suit was commenced on one of the district courts, to recover a claim which accrued to the plaintiff under an agreement with a contractor. It appeared, in the court below, that a proceeding had been instituted by the plaintiff in this case, and was still pending against the owner of the building, to foreclose a lien effected thereon by the said plaintiff, to secure the very debt upon which this suit was founded. The plaintiff had judgment herein.

This was an action brought in this court, under the lien law of 1851, for materials furnished by the plaintiffs to a building owned by the defendant. The notice, filed under the sixth section, claimed $139 89, with interest.

<p>Motion to strike out portions of the answer. The opinion sets forth the facts and the grounds of the application.</p>

Appeal by one of the defendants (the owner) from a judgment rendered against him and his co-defendant, (the contractor,) by the fourth district court, in favor of the plaintiff (a sub-contractor). Upon the trial, the defendants admitted the execution of a contract between them for the erection of a house, and that the plaintiff had a valid demand, as claimed against the contractor, for materials furnished to the building.

The plaintiff in this suit, having performed work and furnished materials, under an agreement with a contractor, for and upon a building owned by the defendant, obtained a judgment against the owner, in the sixth district court, in proceedings under the lien law of 1851. It was admitted at the trial, that nothing was owing from the owner to the contractor, according to the original terms of their contract, and that all of such terms had not been fulfilled by the contractor.

<p>Demurrer to a set off alleged in the answer. The opinion states the facts.</p>

<p>Action in the marine court, under the mechanics’ lien law of 1851. The plaintiff recovered a judgment in the court below, and an appeal was taken to this court by the defendant. The opinion contains a full statement of the facts.</p>

The plaintiff in this proceeding, having filed with the clerk a notice under the sixth section of the lien law of 1851, served upon the defendant the usual notice pursuant to § 1, accom* panying it with a bill of the particulars of his claim. The defendant appears to have served upon the plaintiff’s attorney an answer, without waiting for a formal complaint, and the cause was then regarded by the parties as at issue, and was placed upon the trial calendar of the court.

This was an action by the contractor against the owners, under the provisions of the lien law of 1851. Judgment was obtained by the plaintiff. The defendants appealed, relying upon an exception taken by them to the ruling of the justice, excluding testimony offered on their behalf at the trial.

The points raised in this case, which was a proceeding under the mechanics’ lien law of 1851, are fully stated in the opinion of Woodruff, J. The following is the order entered at special term, and from which the defendants appealed: “ At special term,” &c. “ On reading and filing notice for the defendants (owners) to appear and submit to an accounting pf the amount due, with proof of service, and other papers, and also on reading and filing notice of set off served by the…

The defendant in this suit was the owner of certain buildings in the city of New York. The plaintiff obtained a judgment against him, in the marine court, upon proceedings to foreclose a lien claimed to have been acquired by the plaintiff, for work done upon the houses as a carpenter, under an agreement with a sub-contractor, who was employed by the contractor.

The defendant (owner) appealed from a judgment entered against him in the marine court, in a proceeding taken under the lien law by a creditor of the contractor. The question in the case arose under the ruling of the justice, excluding testimony offered for the appellant at the trial.

<p>Where a claimant has followed the precise course prescribed by the statute, to create a lien and to bring it to a close, and has served his complaint pursuant to an order made on the appearance of the parties to join issue; the owner cannot demur and take an objection to his proceeding, because he has not made the contractor a party thereto.</p> <p>The claimant, under such circumstances, is, in all respect, rectus in curia ; and when the case is such as to require the equitable interposition ofothe court to cause other parties to be brought in, it is not by way of objection to what has been done by the plaintiff, but by way of appeal to its authority, to make the proceeding (rightly instituted) effectual to do complete justice to all who may be affected by it.</p> <p>It is not very material in what particular form the application to cause the contractors to be made parties comes before the court; but in general, the order should be made on the defendant’s motion or petition.</p> <p>When the application is made by such motion or petition, or is urged in the defendant’s answer, it seems, that in granting the order, the court will not charge the plaintiff with costs.</p>

The claimant in this proceeding, effected his lien upon a building in the city of New York, owned by the defendant, by filing a notice containing all the requirements of § 6 of the mechanics’ lien law, passed in 1851.

<p>In a proceeding under the mechanics’ lien law, to foreclose a lien claimed by the plaintiff, the plaintiff must show that the work, &c., for which the lien is claimed, was done in conformity with a contract made by the owner for the erection, &c. of the building.</p> <p>Where the building is erected by a purchaser of the lots, for his own benefit, the vendor is not the owner of the building, within the meaning of the lien law of 1851, although the legal title to the lots has not yet been actually transferred. (a)</p>

<p>The claimant, under the mechanics’ lien law of 1881, must show, before he can have a judgment, that work has been done for which the owner is actually liable, according to the terms of his contract with his contractor for the erection of the building.</p> <p>A lien may be acquired which will be effectual to reach money which does not become payable until after the filing of the notice; but the owner cannot be required to make payment until the moneys become payable.</p> <p>Whether, when the owner himself institutes the proceeding by compelling the claimant to proceed and foreclose, such owner can be permitted to defeat the claim by showing, that although the money is earned or the work is in progress, the day of payment has not arrived; quere ? (a)</p>

This action was brought by a house painter, under the act for the better security of mechanics and others, passed in 1851.

This was a proceeding under the mechanics’ lien law of 1851, and was instituted by the sub-contractors, to recover from the owner of buildings in the city of New York, by the foreclosure of a lien effected thereon, a claim against the contractors, for labor performed and materials furnished in the erection. The trial was by the court, without a jury, Wood-buff, J., presiding, and a judgment was directed for the plaintiffs.