Volume 1 — Hall's New York Superior Court Reports

<p>Charles Gatfield, by his will, dated April, 1798, devised as follows: “ I give and bequeath to my wife Sarah, all my estate, real and personal, during her lite: the house and lot No. 37, situate in Mulberry-street,” “ to my heirs Maria and “Eliza Gatfield in fee-simple forever: if one of them should die, the property to “ descend on the other : in case both should die, the property to descend on my “ wife Sarah; only she is to pay to my brother Archibald Gatfield one shilling “if demanded.”</p> <p>The testator died in 1793. Maria died in her childhood; Eliza attained the age of 21 years, married, and afterwards died in the lifetime of her mother, without leaving or ever having had any issue, and without making any disposition of the property. Her husband also died in the lifetime of the testator’s widow. The widow, shortly after the husband’s death, married one Strang, by whom she had issue five children, who were her heirs at law. She continued in the possession of the premises until 1827, when she died. After her death Archibald Gatfield, the heir at law of the testator, brought an action of ejectment against the defendant, who was one of the children and heirs at law of the widow, for the recovery of the house and lot.</p> <p>Held, that he was not entitled to recover. That the words “ if one of them “ should die,” and “ in case both should die,” should be taken to mean a dying ■without lawful issue; that the court were at liberty to supply the words, in order to carry the testator’s intention into effect; and that upon the death of the daughters without issue, the whole estate in the house and lot became vested in their mother.</p>

<p>In assigning breaches, in an action of covenant, it is sufficient, in general, to follow and negative the words of the instrument declared</p>

Mr. Selden, in behalf of Patten, one of the defendants in this cause, moved that an exoneretur be entered on the bail-piece. He read an affidavit stating, that a suit had been commenced against the bail in which the capias ad respondendum had been returned, one defendant taken, the other not found. The plaintiff upon this return had, under the statute relating to joint debtors, (1 R. L. 321.) declared and proceeded against both the bail.

This was an action of assumpsit on a policy of insurance against fire, upon a certain building in the City of New-York, upon which the defendants had underwritten to the amount of eight hundred dollars. The defendants pleaded the general issue ; and the cause was tried before Mr. Justice Hoffman on the 11th day of July, 1828.

Mr. C. Walker, for the defendant moved to set aside a default upon a special affidavit, but, which contained no averment of merits. The suit was an action on several promissory notes, and the declaration contained special counts on the several notes, together with the usual common counts. The defendant pleaded specially to the counts on the notes, but omitted the general issue entirely.

Mr. W. Price, in behalf of the plaintiff in this case, made an application for the appointment of a guardian ad litem to the defendant, an infant, who had been arrested, but had not appeared, nor taken any notice [of the arrest. He read an affidavit setting forth, that the action was brought for necessaries furnished to the infant.

<p>Where a check on a bank ia given, in the 'ordinary course of business, it is not presumed to be received in absolute payment of a debt, even if the drawer have ibnds in the bank, but as the means whereby the holder may procure the money. The holder becomes the agent of the drawer to collect the money : and if guilty of no negligence in presenting the check for payment, whereby an actual injury ia sustained by the drawer, he will not be answerable, if from any peculiar circumstances attending the Bank, the check be not paid; but in a suit against the drawer for the consideration of the check, the holder may treat it as a nullity, and resort to his original cause of action.</p> <p>The plaintiffs sold the defendant a quantity of timber, and having presented their account for the same to the defendant, on the 28th day of May, 1828, at 5 o’clock, P. M., received his check on the Franklin Bank of the City of New-York, for §1000.—At half past ten o’clock A. M. the next day, the Bank was prohibited from making any payments, by an Injunction out of Chancery; and the Check was, consequently, never presented.—Held, in an action brought by the holders against the drawer of the check, under these circumstances, that the plaintiffs might waive the check altogether, and recover the value of the timber, in an action of indebitatus assumpsit.</p>

This was an application for a new trial, on the part of the defendants. The cause, upon which the application was founded, was tried at the July term of this court, before Mr. Justice Hoffman. At the trial, the presiding judge rejected all the evidence offered by the defendants to sustain their defence, and the plaintiffs obtained a verdict.

Mr. Hawes, in behalf of the plaintiff, moved to set aside a default, which had been entered against him for not declaring, pursuant to a rule duly entered for that purpose, in the book of common rules.

' Assumpsit upon a bank check, drawn by the.defendant on the Franklin Bank of the City of New-York,' made payable to cash or bearer, and delivered to the plaintiffs by the defendant., , The declaration contained- a count upon the check, together with the common money-counts. • The cause was tried before Mr. Justice Hoffman, on the 12th day of July* 1828.On the trial, the plaintiffs produced and prov-r ed the check and read the same in evidence. .

This was an action of assumpsit, upon three several policies of insurance against fire, tried before Mr. Justice Hoffman, on the 10th day of July, 1828. The declaration contained a count upon each of the policies.

This was an action for money had and received, by the defendants, to and for the use of the plaintiffs. The declaration contained the usual money counts, together with a count upon an insimul computassent. The defendants severed in their defence ; and Jewett appearing^ by his own attorney, pleaded the general issue, and gave notice of set-off.

Mr. D. Graham, for the plaintiffs in this cause, moved for leave to discontinue without costs, thé defendant having since the commencement of the suit, obtained a discharge under the insolvent act. [Laws N. Y.vol. 5. sess. 42. p. 115.] The motion was opposed by Mr. Ketcham, for the defendant, upon the ground that the motive for discontinuing, was not founded upon the discharge, but upon the fact, that the action had been commenced in such a way, that it could not be…

This was an action of assumpsit, against the defendant (who was an auctioneer) for selling certain goods The declaration contained two special counts ; a-count for goods sold and delivered, and the usual money counts.

The attorney for the plaintiff in this cause, in preparing his bill of costs, charged for drafts and copies of the affidavits of five different persons, whose testimony was necessary to establish the preliminary proofs of the plaintiff, and also for administering the oaths.

This was an action of debt on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas for the county of Suffolk in the state .of Massachusetts.

Mr. C. C. King, in behalf of the plaintiffs, at the last August term of this court, moved for leave to amend the declaration in this cause by inserting special counts therein.

This was an action of assumpsit, on a policy of insurance upon three cases of merchandise, containing, principally, artificial flowers, silk goods and muslins, “ at and from New-York to Ba- “ tavia,… Held: that the identical goods insured could, by any construction, be considered as the proceeds of themselves.

This was an action of assumpsit for money had and received. The defendant pleaded the general issue, and gave notice of a set-off. The cause was tried before Mr. Justice Hoffman, on the 11th day of June, 1828.

Assumpsit for money had and received. Plea,[ the general issue, and payment, with a notice of set-off. Held: at which the said rector presided, and that he, notwithstanding the remonstrances of those who had contributed their funds, received the votes of persons having no interest in said church, for wardens and a vestry, according to a printed list, which he had prepared and circulated, whereby he procured the former wardens and vestry to…

This was an application on the part of the defendant to compel the plaintiff to give security for costs, upon the ground, that he was a non-resident. The plaintiff, in reply,, put in an affidavit stating his residence to be in the city of New-York. The defendant then read affidavits to show that the plaintiff was an atheist, and had no belief in a superintending Providence, or a state of future rewards and punishments.

This cause came before the court on a demurrer to the plaintiff’s evidence. The declaration contained two counts.

<p>An action lies in favour of a landlord, against any person, who so wrongfully and maliciously disturbs his tenants, that they abandon his premises, and the landlord thereby loses his rent.</p> <p>The declaration in this case set forth, that the plaintiff was possessed of the unexpired term of a house, which he demised to certain'jpersons, who entered, and were in the quiet possession of the same. That the defendant, knowing^ that they rightfully held possession as tenants of the the plaintiff, and wrongfully and maliciously intending to injure him, “ so disturbed his said tenants” that they were obliged to abandon the premises: whereby the plaintiff lost his rent, and the premises became injured for the want of occupation.</p> <p>Upon demurrer to this declaration it was held, that the plaintiff wasfen titled to judgment.</p>

Judah moved for an attachment against the sheriff of the city and county of New-York, for contempt, in not bringing in the defendants’ bodies, founding the motion upon an affidavit containing the following statement of facts, viz : The capias ad respondendum in this cause was returnable at the term of October, 1828. The first week in term had elapsed, and no bail had been put in by the defendants.

Judgment having been rendered in favour of the plaintiff in this cause upon demurrer to his declaration, the defendant was allowed to withdraw the demurrer, and answer over upon payment of costs. The defendant having neglected to do this, the plaintiff proceeded with his cause, and executed a writ of inquiry.

The plaintiff brought his action upon a certain agreement in writing made with the defendant, and the defendant pleaded, in abatement, the non-joinder of C. H. Hall as a co-defendant, he being a joint contractor with the defendant, and equally responsible to the plaintiff upon the agreement.

<p>Where an important witness is absent from the country, and will not return until' several terms have elapsed, this court will put off a cause for a reasonable period, notwithstanding the delay may comprehend more than one term.</p>

This was an action on the case against the sheriff for a neglect of his official duty. The declaration contained two counts. In the first, the plaintiff claimed damages of the sheriff for not levying on the property of a defendant under certain executions issued in favour of the plaintiff; in the second, for not returning said executions. Plea, not guilty.

This was an action of assumpsit, upon a policy of insurance against fire, for five years, executed by the defendants in favour of the plaintiff, to the amount of $2000, upon “ a three .story brick building, with a slate roof, situated on the corner of Hudson and King streets,” in the city of New-York, as described in a certain report, filed in the office of the defendants.

<p>Where a defendant, in an action of assault and battery, has been held to bail without affidavit, and without an order of a judge for that purpose, to an amount exceeding $500, the court upon application will order the bail to be reduced to that sum.</p>

<p>A seaman, charged with disobedience of orders and mutinous conduct, was voluntarily discharged from the ship by his captain, who expressed regret for the difficulties which had occurred, and promised to pay the seaman his wages. In an action brought by the latter against the master, it was held, that the captain’s promise operated as a waiver of any forfeiture of wages by the seaman, for disobedience of orders during the voyage.</p>

The defendant in this case, was tried on the 4th day of September, 1828, before Mr. Justice Hoffman, on an indictment found by a jury, impannelled under the act entitled,‘ an act to prevent forcible entry and detainer.” [1 R. L. 96..] At the trial the relator, for the purpose of showing his title to the premises in question, and his possession thereof, offered in evidence, 1.

This was an action upon a policy for insurance tried before Mr. Justice Hoffman. The policy was an open one in the usual form, on cargo for $5000, dated the 19th day.of February, 1827, and subscribed by the defendants. That part of it, which is deemed material to this case, was as follows, viz :— “ Cargo.

This was an action of covenant, upon the following charter-party.—“ Chartered from N. B. Gram, the brig Fancy, Miner “ master, for a voyage from hence to Angostura and back, for the “ sum of twenty-seven hundred and fifty dollars: twenty-five “ running lay-days to be allowed at Angostura to discharge the “ outward and receive the homeward cargo, and twenty dollars “ per day demurrage for detention over that time.

This was an action of assumpsit, brought to recover money placed in the hands of the defendant, as a stake-holder, upon the event of a trotting match. The declaration was in the common form, for money had and received, money paid, &c. Plea, the general issue.

This was an action upon a promissory note, made by one George Gibson, in favour of the defendant, endorsed by him to one Rogers, by Rogers to Samuel C. Hyslop, by Hyslop to one Peter W. Spicer, and by him to Charles B. Spicer. Plea, the general issue. - The. cause was tried on the 12th day of September, 1828, before Mr. Justice Hoffman.

This was an action of debt on a bond, for eight thousand five hundred dollars, executed by the defendant in favour of the plaintiffs, and bearing date on the third day of January, 1815.

<p>In an action against a witness for the penalty imposed upon him by the statute, [1 R. L. 524.] for not attending at a trial, when duly subpoenaed, the declaration must state specially, among other tilings, that the fees of the witness were paid or tendered to 1dm, and it is not sufficient to allege that the witness was “ legally subpoenaed according to the practice of the court.”</p>

This was an action upon a policy of insurance for $1000, made by the defendants in favour of the plaintiff, upon the freight of all kinds of lawful goods and merchandise laden or to be laden on board the schooner Penobscot-Packet, at and from New-York to Wilmington, in the state of North Carolina, from thence to Curaqoa and Bonair, and at and from thence back to New-York. The declaration contained a special count upon the policy, together with the common counts for money.

This was an action on the case against the defendants, for rescuing out of the custody and control of the plaintiff, one Charles Windsor, for whom the plaintiff was bail. The declaration contained two counts.

Assumpsit brought by the holders of a promissory note against the defendant as endorser. The note purported to be drawn by one Richard H. Arnold in favour of the defendant, and to be by him endorsed. Plea, the general issue.

This was an action of indebitatus assumpsit, brought by the plaintiff as the surviving partner of the firm of H. D. The cause was tried before Mr. Justice Oakley, on the 9'th day of October, 1828.

This was an action of assumpsit for money had and received by the defendant to the use of the plaintiff. The declaration contained all the usual money counts, together with a count upon an insimul computas set. Plea, the general issue. The action was originally brought in the Supreme Court, but was transferred to this, by consent of parties, according to the provisions of the act.

Mr. J. Stevens in behalf of the defendant in this cause, moved to set aside a report of referees, to whom the accounts of the parties had been submitted under a rule of court.

<p>Upon an application for a new trial, on the ground of newly discovered evidence, where such evidence rests in the knowledge of a witness, the Courfwill require the party moving to produce an affidavit of the witness, setting forth the tacts upon which he relies, or to show that it could not be obtained.</p>

<p>An action of debt, for the recovery of rent founded on a lease, will lie in favour of the lessor, notwithstanding the lease may have expired.</p> <p>The assignee of a lease, who enters upon and occupies the demised premises, is liable for the rent in like manner with the assignor. In declaring against him, he may be described as assignee in general terms; and the manner in which the assignment was made, need not be set forth. But the assignee cannot be made answerable, by the action of debt, for the rent of any part of the premises demised, except that which has been possessed and enjoyed by himself; and the rent in such cases may be apportioned, the action being founded on the privity of estate merely, and not on the privity of contract.</p> <p>The plaintiffs demised certain premises for a term of years to one F. L. Vultee. The lessee, a short time before the expiration of the term, died, and the defendant, (his widow,) took out letters of administration upon his estate, and continued in possession of apart of the premises, until the lease expired. An action of debt being brought against her for all the rent which was in arrear at the time of the expiration of the lease, it was held, that she was only liable in this action for the rent of such parts of the premises as had been occupied by her after her husband’s death.</p>

The declaration in this case contained two founts. The first was upon a promissory note for $1457. 74., bearing date the first day of May 1827., made,by the firm of N. .Rogers ind Son, in favour of the defendant, payable twelve months after date at the Bank of New-York, and endorsed by the defendant to the testator of the plaintiffs.

The declaration in this case, contained two counts. The first count was upon a promissory note for $8,000, made by the defendants in favour of Fitch Rogers deceased, of whose last will and testament the plaintiffs were executors. The note was dated on the 31st of December, 1814, and was payable two years after its date with interest. , The second count was for money lent, money had and received, money paid and upon an account stated.

<p>In an action of slander no evidence can be given of any loss or injury sustained by the plaintiff unless the same be specially stated in the declaration, and this whether the special damage be the gist of the action, or whether the words be actionable per se.</p> <p>Where, therefore, under the allegation, that, in consequence of the speaking of the slanderous words, “ certain Insurance Companies in the city of New-York, re- “ fused to insure any vessel commanded by the plaintiff, or any goods laden on “ board any vessel by him commanded,” the plaintiff was permitted to prove that the New-York Insurance Company refused to make such insurance ; the evidence was held to have been improperly admitted.</p> <p>In this action, the plaintiff cannot give evidence of the fairness of his general character, until it is attacked by the defendant; and the fact, that a justification has been pleaded, makes no difference in the rule.</p> <p>Where the plaintiff, therefore, was allowed to give evidence of his general goad character, after the defendant had gone through with his defence, without impeaching such general character, this evidence was also held to have been improperly admitted.</p>

This was an action of trespass, de bonis asportatis, brought against the defendants, (one of whom was an officer) for seizing property under an execution against one Charles Lawrence, which the plaintiff claimied as his own. The defenants severed in their defences, and gave distinct pleas. The officer pleaded not guilty.

This was a motion to set aside an adjustment of the loss in this case, made by O. H. Hicks, Esquire, to whom the adjustment was referred under a stipulation in the case. [See page 247. ante.] On the trial, the plaintiff did not prove any abandonment, nor the delivery of such preliminary proofs, as showed the defendants with exactness, the amount of the property lost: some part appearing to have been saved.

<p>If a vessel during the prosecution of her voyage be stranded near her port of'destination, and, for the purpose of relieving her, the cargo be put into lighters and forwarded to such port, and during the passage in the lighters, a part of it sustain damage, such loss is a proper subject of general average.</p> <p>A vessel on her voyage from New-York to Mobile, having on board goods belonging to the plaintiff and the defendant, was stranded near Mobile Point. While in this situation, all the goods on board, were put into lighters bythe master and forwarded to Mobile, with instructions to his agent, not to deliver them to their respective consignees, until the general average was secured. The goods all arrived at Mobile ; but on their passage from the véssel to that place in the lighters, those belonging to the defendant were damaged to an amount exceeding §2000.</p> <p>In adjusting the general average at Mobile, the loss on the defendant’s goods was taken into the account, and the proportion assessed upon those belonging to the plaintiff amounted to §86,76. This sum the agent of the captain exacted from the plaintiff’s consignee before he would deliver the goods to him, and it was paid accordingly, under that compulsion. The brig was shortly afterwards got off, and proceeded up the bay, but was driven back by a gale of wind and again stranded, when she was abandoned to the underwriters.</p> <p>Upon an action brought to recover the amount thus paid by the plaintiff to the defendant it was held, that this was a proper case for a general average; that the loss upon the defendant’s goods was correctly taken into the accountjin making the adjustment, and that the plaintiff was not entitled to recover. But if this were not so, it seems that the adjustment made at Mobile would be conclusive, upon the ground that Mobile, in relation to New-York, is to be considered upon a question of average as a foreign port.</p>

This was an action upon a policy of insurance, tried before the Chief Justice on the 14th day of November, 1828.

<p>It is well settled, that in an action of slander for words which are not actionable per se, the plaintiff cannot recover, unless he shows special damage as the consequence of the words. And quart ? Whether words spoken by a public officer in his official capacity concerning another, are ever actionable ? And if so, whether the plaintiff must not show express malice in order to maintain the action 1</p>

This action was brought to recover the amount of a joint and several promissory note for $15,000, made by Lewis Benedict, (the defendant) W. S. Dezeng, J. H. & E. S. Beach, Gilbert F. Lush, Gregory & Bain, Chandler Starr, Elias Mather & Co., Spencer Stafford, and H. and S. Stafford, in favor of Messrs Keeler & Rogers and endorsed by them to the plaintiffs. The note bore date the 22d of Oc. vf .; dv twelve months thereafter to Keeler & Rogers, at the Fulton Bank.

<p>In an action upon a policy of insurance against fire, if the defendants admit that they are liable for the loss, and the controversy between the parties relates solely to items of injury, and the amount of loss sustained by the assured, the court will refer the matter to referees, to adjust the amount.</p> <p>In mixed questions of law and fact, where long accounts are involved, it is the practice of the court to hear the cause until the questions of law are disposed of, and then refer the accounts to referees. If the referees named are objected to by eitherparty, the court will draw them from the jury box. ;</p>

Assumpsit, brought by the plaintiffs to recover the amount of a post-note for fifty dollars, made by the defendants, and hearing date on the 23d of December, 1826, payable sixty days after date, to Jasper Grosvenor, or order, on demand.

This was an action on the case, for a false return on a writ of fieri facias, at the suit of the plaintiff, against one Samuel B. Hiclccox. The declaration contained two counts.

The plaintiff in this suit, brought an action of debt on a replevin bond, executed by the defendants; but the real party in interest was one Abraham Depew. Two of the defendants had previously commenced an action of trespass against Depew, in the preme Court, which was also pending. The question in controversy, related to the title to seventy barrels of apples, which had been levied on, by an execution, out of the Marine Court, in favour of Depew, against one Wheeler.

This was an action of assumpsit, for goods sold and delivered. The plaintiff sought to recover for a ceroon of indigo, which was described in his bill of particulars, as weighing 1141bs. subject to a deduction of ten per cent, for tare. The defendants pleaded the general issue, and a tender of $>' 182, on the 22d day of May, 1828. The plaintiff replied, denying the tender.

This was an action upon a policy of insurance, made by the defendant, on account of-, bearing date the 14th of September, 1825, on merchandise ; each package of which, not excepted in the memorandum, was to be subject to its own averages bs if separately insured. The goods were to be shipped prior to the first of April, 1826, on board of any vessel or vessels from Liverpool, or London, to New-York, and the sum subscribed to the p0pCy wag $30,000.

The plaintiffs declared against the defendant in an action of debt, upon a judgment obtained against him by the plaintiffs in “ the Supreme Court of the State of New-York,” at the May-term ef said Court, in the year 1827, for the sum of eleven hundred and forty-four dollars and thirty-seven cents.

This case was formerly before the court, upon a demurrer to the plaintiff’s evidence, [ante p. 201.] It was an action upon a guaranty given by the defendant to secure the payment of three certain promissory notes, made by one Scovell in favour of the plaintiff. • The declaration contained four counts.

<p>Motion for a new trial.</p>