Volume 1 — Hilton's New York Reports

These actions were brought in tbe Marine Court to recover tbe wages of tbe plaintiffs as seamen on board tbe sbip Palestine, on a voyage from San Francisco, bound for a port in tbe Atlantic states. Tbe defendants denied tbe indebtedness and alleged payment, desertion, breach of contract on tbe part of tbe plaintiffs. Mid that tbe vessel earned no freight.

Appeal by defendant from a judgment of the fifth, district court. This action was brought to recover damages for trespass The facts sufficiently appear in the opinion of the court.

Appeal by defendant from a judgment of the Marine Court. This was au action upon a promissory note. The defence was, that the note was given to induce a firm, of which the plaintiff was a member, to sign a compromise agreement, releasing the defendant from his indebtedness to his various creditors; that it was given without the knowledge or consent of the other creditors and was therefore void.

Appeal by defendant from a judgment of tbe third district court.

Appeal by defendant from a judgment of tbe Marine Court. This was an action for false imprisonment. The pleadings were verbal. Tbe evidence for the plaintiff showed that he was arrested upon a warrant issued by a police justice, upon the complaint of the defendants, but was discharged upon their cross-examination.

Ai’peal by defendants, under section 366 of tbe Code, from a judgment of the Marine Court by default. The action was upon a promissory note. The expuse set up for the default and the defence sought to be interposed sufficiently appear in the opinion of the court.

<p>Appeal by plaintiff from a judgment of tbe Marine Court. Tho facts sufficiently appear in the opinion of tbe court.</p>

Demurrer to complaint. This was an action upon a promissory note, made by the defendant to the order of the plaintiffs, and delivered to them by the defendant.

<p>Appeal by plaintiff from a judgment of tbe Marine Court. Tbis was an action for use and occupation and in which tbe complaint was dismissed in tbe court below. Tbe facts sufficiently appear in the opinion of tbe court.</p>

Appeal by defendant from a judgment of the Fourth District Court. This action was for rent. The answer contained a denial of tbe allegations in the complaint and a plea of prior adjudication. Upon the day to -which the trial was adjourned, after joining issue, the defendant moved to amend his answer, by inserting an allegation that the leased premises became untenantable by tbe negligence of the landlord. The motion was denied and tbe defendant excepted.

Appeal by defendant from a judgment of the Marine Court. This was an action for goods sold and delivered. They were delivered to the brother of the defendant, but were charged to the defendant himself, the agreement between the parties being that the goods which were sold by the defendant’s brother .were to be paid for and the others were to be returned..

Appeal by the defendant from a judgment of the Marine Court. This action was brought against the defendant as surety upon a lease. Both the lease and the guaranty were in writing, the lease being for two j’ears.

<p>H., being the lessee of certain premises under a lease ending May 1st, 1854, and the owner of a new lease commencing on that day, assigned the latter, on the 14th of March, 1854, to C., and gave him possession. In a subsequent action ifor rent up to the 1st May, 1854, held,</p> <p>I. That parol evidence was admissible to show that 0. took possession under H. prior to 1st May, 1854, and that evidence of such occupation, coupled with the declarations of the defendant, were sufficient to sustain an action for use and occupation prior to 1st May.</p> <p>2. That in the Marine Court a complaint for “one quarter’s rent of ” premises, describing them and stating the amount claimed, was sufficient to sustain a recovery in such an action.</p> <p>3. That a covenant by tire plaintiff, in the assignment, against back rents, did not estop him from recovering for the use and occupation of the premises by the defendant, prior to the time when the assigned lease was to take effect.</p>

Appeal by defendant from a judgment of the Marine Court. This action was brought by the plaintiffs, as partners, against the defendant, for goods sold and delivered. The only evidence offered was that of the plaintiffs’ book-keeper, who testified tbat be presented tbe bill to tbe defendant, wbo admitted its correctness and promised to pay it.

• Appeal from o. judgment of tbe Marine Court. Tbis was an action against tbe defen dan to as indorsers of a promissory note. Tbe defendant Hughes alone defended.

Appeal by defendant from a judgment of tbe Marine Court. This was an action to recover damages for injury to person and property. Tbe defendant set up a counter-claim in bis answer. Tbe facts were these: The plaintiff occupied tbe first story of tbe store 145 Elm street, as a blacksmith’s shop. Tbe defendant occupied tbe story immediately overhead. He bored several auger boles in tbe floor of bis room and poured water down on tbe workmen and tools in tbe plaintiff’s sliop.

<p>N. sold boots and shoes to the wife and children of the defendant, for which this action was brought by N.’s assignee. The answer set up a counter-claim for a cemetery lot sold to N. by tho defendant’s wife. Tho evidence showed that the defendant’s wife had sold to N. a certificate which entitled him to a deed of a lot in tho C. H. Cemetery, that he obtained upon tho certificate such a deed from the company owning the cemetery, and took possession under it. There was also some evidence of an agreement between him and the defendant’s wife, that ho should pay for the lot, one half in boots and shoes; Held :</p> <p>1. 'That this did not constitute a good counter-claim in the action against the defendant by the plaintiff’s assignor. It was neither in favor of the defendant nor against the plaintiff.</p> <p>2. That though it was not admissible to establish a counter-claim, it was admissible for the purpose of showing that the goods were delivered to the defendant’s wife, in payment of moneys owing to her by N., and that no liability was ever incurred on the part of the defendant to pay for them.</p> <p>3. That under the loose system of oral pleadings allowed in justices’ courts this evidonee was admissible in such a court, under an answer which set up the facts as a counter-claim.</p> <p>4. That it was immaterial whether the defendant’s wife gave to N. a strictly legal transfer for the lot, provided he obtained, upon the certificate given to him, possession of the property and a sufficient deed thereof.</p> <p>Parol proof of the commencement and trial of a former suit is admissible; but it seems not evidence of matters that would appear in the pleadings.</p> <p>A witness, in testifying to a conversation, will not be required to give the precise words used. He may be allowed to state the substance merely.</p> <p>A notice to the plaintiff, to produce a letter written by the defendant to the plaintiff’s assignor, does not entitle the defendant to offer secondary evidence of its contents, upon the plaintiff's failure to comply with the requisition in the notice, lie should subpoena the assignor to produce it. If it has been lost or destroyed, parol evidence of its contents may be given.</p> <p>"Whether the written rules of a company may be proved by parol? Quere.</p>

This action was brought by Adolphus F. Buddenburg, as as-signee of John Wendlandfc, against Valentine Benner, to recover for tbe loss of clothing stolen from 'Wendlandt’s room, while a gnest at the Monte Christo, a boarding-honse kept by defendant. On the trial it appeared that the defendant kept a boardinghouse, and plaintiff’s assignor was one of his boarders.

The plaintiff claimed to recover the value of an iron safe, sold to tbe defendants at. a stipulated price.

<p>Where a justice of a district court enters judgment for an amount less than that found by him to be due, although through inadvertence, this court cannot give the proper judgment, but can only reverse and allow a new action to be brought.</p>

<p>This court will not reverso tho finding of a referee upon a question of fact, although it differs from him in the result at which he has arrived, if there is conflicting evidence upon the point.</p> <p>In an action brought by an emplojme to recover the contract price agreed to ho given him, upon an averment of readiness and tender of performance on his part, and refusal to accept performance on the part of his employer, it is no defence that a former action has been brought by him to recover both damages for tho defendant’s breach of the contract in discharging him and a balance of salary up to tho time of his discharge, where the claim for damages was withdrawn upon the trial, and judgment rendered only for the balance due for services actually rendered prior to the discharge.</p> <p>And a tender of performance having been made prior to such action, it is not necessary to repeat the tender in order to maintain a new action on the contract.</p> <p>In such an action, the employee, having been discharged without just cause, is entitled prima facie to recover the full amount of the contract price up to tho time of tho commencement of the action. It devolves upon the defendant to show, in mitigation of damages, that the plaintiff might have obtained employment elsewhere.</p>

<p>.Appeal by defendant from a judgment entered on a report of a referee. This was an action on a promissory note against the defendant as endorser. The defence was tbrec-fold.</p> <p>1st. That the endorsement was made without consideration, and that the note was diverted from tbe purpose for which it was made.</p> <p>2d. That tho note was made by the makers, H. Wilbur & Co., and passed by them, with two other notes, to the Meriden Agency Company, upon the agreement that they wore to furnish therefor, to the makers, bills of the City Bank of Cape May, New Jersey, of the denomination of one, two, three and five dollars, which bills were to be stamped so as to be recognized, and were to be kept in circulation by Wilbur & Co. until the notes were paid, and that this agreement rendered the notes void under the provisions of the Revised Statutes relative to unauthorized banking, contained in 2 R. S. (4th ed.), p. 118, and post.</p> <p>3d.- That it was discounted by the Meriden Agency Company, a foreign corporation; that they kept an office in the city of New York for the purpose of discounting paper; that this was contrary to the same provisions, and rendered the notes void^</p> <p>The cause was tried before a referee, who reported in favor of the plaintiff. The following extract from his report states the facts material to the case.</p> <p>“ I further find and report,' that the said note was, together with two other notes, made by H. Wilbur & Co., and endorsed by the defendant, the three together amounting to six thousand dollars, delivered to the Meriden Agency Company, a corporation with banking powers, doing business in the state of Connecticut, in pursuance of an agreement made by and between Curtis L. North, (he president of said company, and Henry Wilbur, of the said firm of H. Wilbur & Co., by which agreement the said company were to furnish to said Wilbur the amount of said notes, less a discount at the rate of six per cent, per annum, in the bank bills of the City Bank of Cape May, a banking institution situated in and doing business under the laws of the state of New Jersey, of the denomination of one, two, three and five dollars, which bills were current in the city of New York at a discount of one-quarter of one per cent., and were redeemed from time to time at the office of J. II. Washburn, in said city, the agent in said city of said Meriden Agency Company, the bills-so to be furnished to said Wilbur to be marked and identified and circulated by him in the state of New York, and as fast as redeemed by said Washburn to be taken up by said Wilbur from time to time, with funds current at par in the city of New York; that this arrangement was to continue for one year, and the said notes, given by said H. Wilbur & Co., were to be receded from time to time during said year; that the said notes were endorsed by the defendant, Cornell, without consideration, and for the accommodation of the makers, and with a view to said proposed arrangement. I further find and report, that the said arrangement was never executed, but the full amount of said three notes was paid to said Wilbur in funds of banks in the city of New York.”</p> <p>It further appeared by the bvidence that the amount paid for the notes was equal to their face, that no interest was deducted, ai^that the payment was made after the notes had run some time. The note was passed to the present plaintiff by the Meri-den Agency Company.</p> <p>The defendant offered evidence to show that the Meriden Agency were engaged in the business of discounting paper as a business, in.this state, in violation of the statute, but the evidence was excluded. Judgment was perfected on the referee’s report in favor of the plaintiff, and the defendant appealed therefrom.</p> <p>I. The note was made, endorsed and delivered to the Meriden Agency Company in pursuance of an illegal agreement to circulate the bills of the City Bank of Cape May, under the denomination of $5, in the state of New York, in violation of the statute, and was therefore void in the hands of that company, and of any persons claiming through them. Pratt v. Adams, 7 Paige, 615; Bank of Chenango v. Curtisf 19 John. 826; 2 R. S. (4th ed.) 119, §§ 11, 12, 13.</p> <p>II. The illegality of the contract, under which the note was made and'delivered, was not waived, nor the contract. legalized by the fact that the notes were subsequently otherwise paid foiv Be Groot v. Van Buzar, 20 Wend. 390-395.</p> <p>III. Tbe note in suit was discounted by tbe Meriden Agency Company, in violation of tbe statute prohibiting foreign corporations from discounting notes witbin tbe state. 2 R. S. (4th ed.) 118, § 3-5, and 6-9; p. 698, § 2.</p> <p>IV. Tbe note was endorsed without consideration, and waa diverted from tbe purpose for which it was given.</p>

Appeal by plaintiff from a judgment of the Fourth District Court. Tins action was brought by the plaintiff as assignee of one Frederick Wellmann, to recover for clothing furnished to Aáy the infant children of the defendant.

Appeal by, defendants from a judgment of tbe Marine Court. This action was brought by the plaintiff, as assignee of one 0. ^f>glie, to recover the value of a trunk and contents from the defendants, who were owners of the ship “Harmonía,” on board which it was shipped by 0. Broglie at Havre, to be carried to New York, it never having been delivered there.

Appeal by tbe defendants from a judgment of tbe Seventh District Court. Tbis was an action to recover damages Tor tbe unlawful taking of personal property. Tbe defendants justified tbe taking under an execution against William Gelhaar. Tbe evidence showed that William Gelhaar was tbe original owner of tbe property, which consisted of tbe contents of a ’drug store. That be gave a chattel mortgage upon it to Phillip Gelhaar on tbe 4lh of December, 1855.

<p>In an action to restrain the defendants’ use of the plaintiffs’ trade-mark upon an. article intrinsically valuable, it is no defence that the trade-mark in question is a < false and fraudulent one, used by the plaintiff with intent to deceive, and that the | article which is accompanied by it is not what the trade-mark indicates it to be. i</p> <p>In such an action the trade-maiks containing these words respectively: — one of them, “ H. & M.’s” patent thread/Barnsley,” and'the other] “G. & W.’s celebrated patent! thread, Berwick,” held, that it -was no defence that the threads were not patented, f and were not made by tlm .persons whose names they bore, nor by their assignees I or successors, nor at the places designated on the trade-marks, but that the trade- I marks were false and fraudulent; and a motion to amend the answer, by insert-1 ing allegations to that effect, was properly denied. f</p>

Appeal by defendants from a judgment of 1he Marine Court. This action was brought against Rushmoxe- (1. Hutchins and Pomeroy Sawyer, as joint makers, and S. S. Rowland, as endorser, of a promissory note. It was commenced by short summons. Tbe return of tbe justice did not disclose that there was any evidence of tbe defendants’ non-residence.

Appeal by defendant from a judgment of tbe Marine Court. This action was brought by the plaintiff, the owner of a house in Forty-fourth street, between the Ninth and Tenth avenues, to recover damages for injuries occasioned by a fat-boiling establishment belonging to the defendant, and situated on tbe adjoining lot.

Appeal by defendant from a'judgment of tbe Second District Court. This was an action to recover damages for the unlawful detention of personal property.

<p>It is erroneous to permit a witness to testify to an account from a transcript of the party’s hooks, without their production, and especially so when Ms adversary has given Mm notice to produce the hooks on the trial.</p> <p>A justice has no power to compel a party to the suit to testify, when he is not placed on the stand hy his adversary. Unless called hy his opponent he cannot be made a witness.</p>

Appeal by defendant from a judgment of the Seventh District Court. This was an action brought to recover. damages for a wilful trespass. The facts sufficiently appear in the opinion of tbe court. Judgment was rendered for tbe plaintiff for $25 and costs, from wbicb tbe defendant appealed. Submitted without argument by tbe respondent.

Appeal by defendant from a judgment of the First District Court. This action was brought to recover for brokers’ services, rendered to the defendant by the firm of Yan Lien & Go., who assigned the claim to the plaintiff.

On tbe return day of tbe summons in tbis action, tbe defendant failed to appear, and an inquest was taken and judgment was rendered thereon. On tbe defendant's motion, this judgment was after-wards set aside, and tbe cause was set down for trial for the 20th of February. Tbe cause was not put on the calendar for that day, but was placed on tbe calendar on tbe 28d of February.

Appeal by defendant from a judgment of tbe Marine Court. The facts, as they appeared by tbe return, are fully stated in tbe opinion of the court. An affidavit of the defendant’s attorney was attached to the return containing an excuse for the default, on which the judgment appealed from was entered.

Appeal by defendant from a judgment of the Fourth District Court. This was an action by the plaintiff, as assignee of Daniel Griffin, to recover $25 rent. Daniel Griffin was the lessee of tbe building No. 47 Dey street. In the rear of tbis building is another, approached both by an alley way and by the hall of the front building, which runs through from front to rear.

Appeal by defendant from a judgment of the Seventh Dis-tritt Court. The defendant was the proprietor of the Elm Park Hotel. A horse belonging to him having been stolen from his barn, he caused the following advertisement for its recovery to be inserted in the New York Herald: “ $50 Reward. — Stolen, from the barn of Elm Park Hotel, o¡p the Bloomingdale Road, on the evening of October 22d, a bobtail gray mare, about fifteen hands high, together with harness and red blanket.

<p>Appeal by defendant from a judgment of tbe Marine Court. This action was brought by tbe plaintiff as assignee of one Charles S. Roe, to recover rent.</p> <p>Charles S. Roe was the owner of premises No. 406 Sixth avenue. At the time he became the owner of the premises they were leased to one 0. W. Burnham — 0. R. Burnham being surety on the lease. 0. W. Burnham died. No letters of administration were taken out, but his widow assigned the lease to 0. R. Burnham, the surety, who took possession, and subsequently leased to the defendant. The plaintiff’s assignor, C. S. Roe, collected a part of the rent for the quarter previous to that for which this action is brought, by obtaining from 0. R. Burn-ham an order on the defendant therefor. And it appeared by the testimony of C. S. Roe himself, that being asked by 0. R. Burnham’s agent to take the defendant as a tenant, he declined to do so, and said he knew no tenant except the surety. It was also in evidence that the defendant had paid 0. R. Burnham’s agent the rent sued for, $25 in cash, and the balance of $125 in his note. At the time the rent was demanded of him on the part of the plaintiff’s assignor, and prior to his payment to 0. R. Burnbam, be claimed some deductions on account of gas-fixtures, and damages for leakage in tbe roof, but offered to pay $75 to Roe in full. Judgment was rendered in tbe court below for tbe plaintiff, from wbicb tbe defendant appealed.</p> <p>cited Smith y. Stewart, 6 Johns. R. 46; Bancroft y. Wardell, 18 ibid. 489.</p> <p>cited Kenada y. Gardner, 3 Barb. S. 0. R. 589.</p>

<p>Appeal by defendant from a judgment of tbe Sixth District Court. The facts are sufficiently stated in tbe opinion of the court.</p>

Appeal by defendant from a judgment of tbe Fifth District ■'fifourt. This action was brought to recover $4.96 for splicing a hawser. It appeared that the defendant employed the plaintiffs to splice the hawser for the steam tow-boat Titan; that he was in the tow-boat business, in partnership with one Joseph P. Martin ; but it did not appear that at the time of the enjoyment the plaintiffs were aware of the defendant’s partnership.

Appeal by defendants from a judgment entered on a verdict of a jury. This was an action to recover damages for an injury occasioned to tbe Manhattan, tbe plaintiffs’ steamboat, by a collision with tbe James Rumsey, tbe defendants’ ferryboat. Tbe Manhattan is a Hudson river steamboat. On the 13tb of June, 1853, she left ber pier at tbe foot of Robinson street, and proceeded up tbe North River. About Canal street it met tbe.

<p>(3-. ha ring, -without the knowledge or consent of the owner, pledged with the defendant, a pawnbroker, property belonging to P., whether the defendant has any lien upon it for his advance — qmzre ?</p> <p>The pawn-ticket having been assigned to P., and notice of her ownership of the property and of the assignment of the ticket to her having been given to the defendant, he is liable to her for the value of the property, if-he afterwards delivers the property to the original pledgor.</p> <p>Ho action can be maintained by an owner of a chattel, when the assignment under which he claims transfers the property only, except for a conversion of the chattel subsequent to such assignment.</p> <p>And when the transfer or assignment is made to the plaintiff after the property has rassed out of the defendant’s possession, a demand of it by the-plaintiff from the ®fendant, and a refusal on his part to give it up, because he had actually parted with its possession to the person from whom he received it,, does not constitute a conversion.</p>

Appeal by defendant from a judgment entered on tbe report of a referee. This action was to recover for money lent. Tlfé' defendant pleaded infancy. Tbe cause was referred, and tbe referee found tbat tbe plaintiff bad lent money to tbe defendant to tbe amount of $122; tbat at tbe time it was lent tbe defendant was an infant, but tbat after be became of age be admitted tbe indebtedness, and promised to pay it.

Appeal by defendant from an order at special term sustain-^ ■ ing a demurrer to a part of defendant’s answer. This was an action to recover a balance of $233.89, upon a judgment for $508.79, recovered by Elam Hurd and Julius T. Alden against tbe defendant and assigned to the plaintiff. A part payment of tbe judgment was admitted by the complaint.

<p>Appeal by defendants from a judgment entered on tbe report of a referee. This action was brought to recover damages for tbe conversion of personal property. The complaint averred the taking and carrying away, by tbe defendants, of certain personal property belonging to one Lucy Sherwood, and that prior •to the commencement of the action she sold the property so taken •to the plaintiff. It neither averred a demand subsequent to that assignment by tbe plaintiff on tbe defendant, nor did it aver tbat she .had-assigned to tbe plaintiff her claim for damages against the defendant. The defendants justified under an execution issued against one Daniel Sherwood, Lucy Sherwood’s husband. The value of the articles claimed was about seventeen hundred dollars.</p> <p>Upon the trial it appeared that Lucy Sherwood, prior to and at tlic time of'her marriage to Daniel Sherwood, was keeping a grocery store on the corner of Hudson and Charles streets, New York citj, the contents of which were her sole and separate property. In January, 1850, she married Daniel Sherwood, and changed the sign, putting up the name of L. Sherwood over the door. The two continued to carry on the business together, the goods being purchased from the income of the store. In September, 1853, Daniel Sherwood confessed judgment to the defendants, Elder and Painter, for goods furnished to the store. Under this judgment an execution was levied by the defendant Lineback, a deputy sheriff, on the contents of the store. It was for the sale under this execution that this action was brought by the plaintiff, as the assignee of Lucy Sherwood. The referee found that a few of the articles levied upon, in value $66, were the separate property of Lucy Sherwood, being specific articles which belonged to her at the time of her marriage. As to the rest, he found that they bad been purchased since the marriq^K from the income of the store.</p> <p>It appeared that at the time of the levy the sheriff was notified that Lucy Sherwood claimed the entire stock of goods, but it. did not appear that he was informed that any portion of them had belonged, in specie, to her prior to the marriage; or that the articles which so belonged to her were distinguished in any way from the rest.</p> <p>Upon the trial the defendants moved for a dismissal of the complaint for insufficiency of proof, which was denied. The referee reported in favor of the plaintiff for the sum of $66, and from the judgment entered on that report the defendants appealed.</p> <p>I. The referee should have dismissed the complaint. 1. There was no evidence of any demand by the plaiutiff after the assignment to him. Sherman v. Wells, 18 Barb. S. C. R. 500; Hall v. Robinson, 2 Com. 293; Robinson v. Weeks, 6 How. Pr. R. 161; Cass v. N. Y. <fe H R. R. Co., 1 E. D. Smith’s C. P. R. 522; Howell v. Kruen, 0. P. Ms., Woodruff, J.; The People v. Tioga C. P., 19 Wend. 73 ; Gordon v. Adams, 12 Wend. 297. 2. There was no evidence as to the value of the articles.</p> <p>II. The business carried on was, in law, the business of the husband. Lovett v. Robinson, 7 How. Pr. R. 105; Yan Siclcel v-Van Siokel, 8 How. Pr. E. 268; Bussell v. Gibson, 8 ibid. 456; Uoiuland v. Fort'Edward Co., 8 ibid. 505; Martin y. Martin, 1 Com. 473. And the "wife having made an appointment of this property to the business, or to her husband, she surrendered her prior title to them, and left nothing to pass by her pretended assignment to the plaintiff. Vanderhyden v. Mallery, 1 Com. 452; Merritt y. Johnson, 7 Johns. 473; Gregory y. /Stryker, 2 Henio, 628; Andrews v. Durant, 1 Kern. 35.</p>

Appeal by defendant from a judgment entered by direction of tbe court upon a trial without a jury. The facts sufficiently ajj’jiear in the opinion of the court.

<p>it is not necessary that a witness should be an expert in tanking in order to prove a usage of banks. If he knows tbe usage be is competent to testify to it. whether he is a banker or employed in a bank, or is accustomed to deal with banks.</p> <p>1 bank has a right to pay notes or checks for a dealer at his request, even after he has made a general assignment for the benefit of his creditors, until notice of such assignment is given to it.</p> <p>And such a payment is good as a set-off in. an action by the assignee against the bank, for a balance of account due the assignors at the time of the assignment, upon collaterals left with notes for discount.</p> <p>A direction in a note, making it payable at a given bank, is equivalent to a request ' fp the bank to pay it.</p>

Appeal by plaintiffs from an order at special term sustaining a demurrer to complaint. The facts sufficiently appear in. the opinion of the court.

Appeal by plaintiff from a judgment of tbe Sixth District Court. This action was brought against tbe defendant, tbe proprietor of Taylor’s International Hotel, in Broadway, to recover tbe value of an opera glass, left by tbe plaintiff in tbe saloon of that hotel, and there lost.

Appeal by defendant from a judgment of tbe First District Court. This was an action to recover rent. In 1854, tbe plaintiff leased to- one Andrew J. Powers tbe bouse No. 153 Third avenue,. New York city, for five years. In May, 1854, Powers failed, and made a general assignment to the defendant for tbe benefit of his creditors. His lease was not specifically mentioned in this assignment.

Appeal bjr defendant from a judgment of the Marine Court. The facts in this case are sufficiently stated in the opinion of the court.

Appeal by defendant from an order at special term denying a motion for a resettlement of a bill of exceptions. The facts out of wbicb tbe motion arose are very fully stated, in tbe opinion of tbe court.

Appeal by defendant from a judgment of tbe Marine Court. This was an action brought against tbe defendant, who is a constable of tho city of New York, under the following provision of the Bovised Statutes. “If a constable neglect to return an execution within five day's after tbe return day thereof, the party, in whose favor it kvas issued, may maintain an action of debt against such constable, and shall recover therein tbe amount of the execution, with interest, from the…

This was an appeal from a judgment of the Marine Court. The action was brought to recover damages for taking and carrying away two oil cloths, claimed to belong to the plaintiff, of the alleged value of sixty dollars. On the trial, the plaintiffs had judgment for sixty dollars and costs, and defendant appealed. The facts are stated in the opinion of the court.

Appeal by defendant from a judgment of the Marine Court. The action was brought by tbe plaintiff as assignee of one Cr. D. Clark, to recover for goods sold and delivered. The goods were delivered to one Greorge Deagle. The question was, whether the undertaking of the defendant was collateral or not. The facts in the case are fully stated in the opinion of the court. The judgment in the Marine Court was for the plaintiff.

Tbis action idfc&s brought to recover damages for injuries sustained by plaintiff through the alleged negligent driving of a cart by defendant’s servant. The facts were, substantially, that the plaintiff was an organ grinder; and on tho 80th of March, 1855, was crossing the street, Park row, carrying his organ on his back, at a moment when the cart in question was coming down the street, from .Center street.

This action was brought upon an agreement in writing to deliver wines, segars and merchandise. Tbe instrument was unsealed, and was as follows: I hereby agree, and bave agreed, for value received, and on demand, to deliver to Pierre Saracco, or order, wine, segars and merchandise to tbe value of one hundred dollars. New York, Feb. 24, 1852. L, Ginochio. In presence of John E. Monaghan. (Endorsed.) Pay to tbe order of E. Giberton, for value received. New York, March 25, 1852.

Appeal by defendants from a judgment of the Marine Court. • This was an action to recover for freight for the transportation of a quantity of corn from Buffalo to New York. The charge was at the rate of twelve and a half cents per bushel. The corn was brought down, one lot on the canal boat Times, and one.lot on the canal boat Red Gauntlet.

Appeal by defendants from a judgment of the Marine Court. This action was brought against the defendants as common carriers, to recover for the loss of twenty-three boxes of Hock wine. The defendants constitute the Union Transportation Company; they received the goods in question at New York, to transport to St. Louis, Mo., and gave the following bill of lading for them: 1853. Union Transportation Co. By Erie Canal.

Appeal by plaintiff from a judgment of tbe Marine Court. This was an action against tbe defendants as common carriers, to recover damages for injuries to the goods of tbe plaintiff, Tbe goods were delivered to tbe Northern Indiana Railroad Company, to be carried to Bergen, New Jersey. They were forwarded, after leaving that road, by tbe road of the defendants, who collected, on delivery, tbe freight for tbe entire transportation.

^¿jppeal by defendants from a judgment of tbe Marine Court. The action was brought by tbe plaintiff as assignor of one Nicholas A. Knox, to recover damages against the defendants as common earners, for the loss of merchandise, consisting of two half pipes of brandy, delivered to the defendants for transportation, directed to St. Paul, Minnesota. The goods were safely carried by tbe defendants to Dunkirk, the terminus of their road.

Appeal by defendants from a judgment of tbe Marine Court. This was an action brought against the defendants, as common carriers, for injuries to a shipment of potatoes while in their charge. The potatoes in question were shipped by the plaintiffs on the Buffalo and Corning Railroad for New York, that road receiving freight for the whole distance, and undertaking their safe delivery in New York.

Appeal by defendant from a judgment of tbe Marine Court, This was an action to recover damages for lost baggage, belonging to Martin and Lucas Scbmidt, tbe plaintiff’s assignors, who were emigrants, and whose baggage was lost at Castle Garden under the following circumstances: 4 The Commissioners of Emigration allow certain railroad companies, running out of New York city, to keep ticket offices in Castle Garden.

Appeal by plaintiff from a judgment of tbe Marine Court. This was an action against tbe defendant as acceptor of a draft drawn upon him, and accepted in these words: “ Accepted, John P. Lord, Treasurer Neuvitas M. Co., 31 Oct., 1854.” Upon tbe trial parol evidence was offered by tbe defendant and admitted under tbe plaintiff’s objection, for the purpose of showing that, tbe diaft was accepted by tbe defendant as treasurer, and by tbe authority of the Neuvitas Mining Company.

Appeal by defendant from a judgment of the Seventh District Court. Tbis was an action to recover damages for injuries occasioned to tbe plaintiff’s bouse by blasting done under tbe supervision of tbe defendant.

Appeal by defendants from a judgment entered upon tbe report of a referee. This action was to recover for work and labor performed and materials furnished by the plaintiff, in the erection of a building in Fourteenth street, New York city, for the defendants. The answer averred that the work was not performed according to contract, nor within the time limited by contract, and claimed to recoup damages therefor.

Appeal by defendant from a judgment of tbe Sixth District '.fclourt, entered on default. The original summons in this action was made returnable at 9, A. M. It was returned personally served by a constable. Upon, tlie return, the defendant did not ■appear, and tbe plaintiff asked for an adjournment, which was graii ted, and marked upon the summons accordingly.

Appeal by plaintiff from a judgment of tbe Fourth District Court. This action was brought to recover wages claimed to be due Louis Wilkiming as clerk. Tbe answer contained a plea of prior adjudication.

Appeal by defendant from .a judgment of tbe Fifth District Court. This action was brought to recover damages for a breach of warranty on the sale of oysters. The defendant, besides denying the warranty, claimed to have acted in the sale as agent for the firm of Mackay, Skidmore & Cook. Judgment was rendered for the plaintiff, from which the defendant appealed. The principal question was, whether the facts proved showed a warranty.

Ari’EAL from a judgment of the Third District Court. This was an action for goods sold and delivered, upon a written order signed by tbe defendant. To prove the signature, the plaintiff relied wholly on an admission of defendant.

Appeal by plaintiffs from a judgment of the Second. District Court. This was an action to recover a penalty of thirty dollars, for a violation by the defendant of the ninth section of the get of 1847, concerning the pilotage of vessels in the East River.(a) The justice dismissed the complaint, upon the ground that the action should have been brought by the master.warden of the port of New York. The plaintiffs appealed.

Appeal by defendant from a judgment of tbe First District Court, entered by default. On tbe return day of tbe summons, in .this ease, the defendant failed to appear until after tbe cause was called, and it was adjourned to tbe 25tb of June, 1856. On tlr^t day tbe defendant- was late, and did not enter the court room until after tbe canse bad been taken up, and the justice bad just finished taking tbe testimony of the plaintiff's witness.

Appeal by plaintiff from a judgment of tbe Fourth District Court. This was an action to recover rent. Tbe plaintiff and tbe defendant occupied together tbe store No. 7 Broad street — ■ the defendant biting tbe front part of it from tbe plaintiff. A partition, running across tbe middle of tbe store, separated the shops of tbe plaintiff and the defendant, both being occupied as paint shops. Tbe action was brought for tbe rent due for tbe quarter ending 1st November, 1856.

Appeal by defendant from a judgment of the Third District Court. The cause was commenced in April, 1856, and was adjourned from time to time, by consent of the parties, until the first of September, when the cause was tried, and judgment was rendered for the plaintiff. The facts upon which the appeal of the defendant was based are fully stated in the opinion of the court.

Appeal by plaintiff from an order at special term awarding costs to defendants. This was an action to recover tbe sum of $52 due for storage, &c., and to enforce a lien on certain piano fortes therefor. In November, 1854, an agreement was made between tbe plaintiff and tbe defendant Pirsson, by tbe execution of the two following writings, tbe one executed by Pirsson to Trust, and tbe other by Trust to Pirsson. “ I hereby agree to pay Joseph IV.

Appeal by defendants from a judgment of the Third District Court. This action was brought to recover for work and labor performed by the plaintiff for the defendants. Judgment was rendered for the plaintiff for $100. The facts are stated in the opinion of the court.

Appeal by defendants from a judgment of the Second District Court. This action was commenced by a short summons, the plaintiff being a non-resident and giving security. Ou the return day the defendants appeared, and moved to dismiss the suit upon the ground that the defendants could only be sued by a long summons. The objection was overruled, the defendants answered, and the cause was thereafter twice adjourned.

This action was brought to recover damages for defendant’s alleged refusal to give plaintiff possession of a portion of premises at No. 245 Canal street, in the city of New York, leased to plaintiff by the defendant.

The complaint in this action averred, that on the 18th day of March, 1855, the plaintiff, a segar dealer, was occupying the store No. 439 Broadway, at the yearly rent of $1,500; that he was about to leave at the close of the then current year, in consequence of the rent being raised to $1,600; that the defendant being then engaged in manufacturing and selling candies at a store very near to that occupied by plaintiff, and believing that if plaintiff surrendered the premises…

Appeal by defendants from an order denying a motion for an extra allowance. In this case the defendants demurred to the complaint. The demurrer was sustained, and judgment ordered for the defendants, with leave to the plaintiff to amend. From this order the plaintiff appealed, and it was affirmed on appeal.(a) Tbe defendants then moved for an extra allowance. Tbe motion was denied.

Tbe action was brought to recover upon an instrument in tbe following form. “ New York, Nov. 15,1856. “ We promise to pay William Seotsmer or order, forty dollars, being tbe amount of bis advance wages in tbe ship called tbe Arabia, provided -be proceeds to sea in said vessel according to tbe shipping articles. “ ($40.) Clark & Deane, 183 South street. “ Per JOHN Wilson.” sIt appeared tbat defendants kept a skipping office, and were engaged in tbe business of skipping seamen.

Appeal by defendant from a judgment of tbe Sixth District Court. This was an action against tbe defendant as surety upon a lease. The lease was made by tbe plaintiff to one Francis Crossin, for five years from tbe 1st of May, 1854. It was in evidence that tbe defendant could neither read nor write, and be signed tbe agreement as surety with bis mark.

This action was brought to recover for instruction in music, given by the assignor of the plaintiff to the defendant, upwards of seven years before the commencement of the suit. To meet the de-fence of the statute of limitations, the defendant relied on an alleged part payment of $5 within six years. The evidence on this point is stated in the opinion. The justice rendered judgment for the plaintiff, and the defendant appealed. The respondent, in person.

Appeal by plaintiffs from a judgment of tbe Second District Court. This was an action to recover for money paid by the plaintiffs, to the use of the defendants, under the following circumstances : The plaintiffs and the defendants owned adjoining lots of land in Brooklyn. By mistake, owing to a confusion in the numbers of the lots, the plaintiffs paid the taxes, $41.40, due on the defendants’ lot.

Appeal by plaintiff from an order at special term, overruling a demurrer to answer. This action was brought to recover rent. Tbe plaintiff leased to the defendant the first floor of No. 8 Fulton. street, New York city, at a yearly rent of $1,500, for one year from the 1st of May, 1854, with the privilege of one year’s renewal at the same rate.. This action was brought to recover the rent clue for the quarter ending 1st May, 1855.

<p>Appeal by defendants from a judgment entered on a verdict of a jury. This action was brought upon an acceptance of tbe defendants, drawn by The Bock -Biver Yalley UnioD Bailroad Company for $1,000, accepted by tbe defendants, and indorsed to tbe plaintiffs. Tbe cause was tried before Judge Ingrabam and a jury. Tbe draft having been read in evidence, tbe plaintiffs rested. Tbe defendants then offered evidence of tbe following facts: That the draft was one of eight of an aggregate amount of $21,675.43, drawn by tbe Bock Biver Yalley Union Bailroad Company on tbe defendants, and accepted by tbem. To show tbe agreement under wbicb these drafts were accepted by tbe defendants, they introduced, in evidence, tbe following letters, written by tbe president of tbe Rock River Yalley Union Railroad Company to tbem:</p> <p>“ Office Rock River Yalley Union Railroad Company, No. 18 Exchange Place.</p> <p>“New York, August 25th, 1853.</p> <p>“ Messrs. Ward Brothers & Co., ■ New York.</p> <p>“ Gentlemen, — Tbe Rock River Yalley Union Railroad Company may have occasion to draw on your bouse from time to time in sums to suit, amounting in all to $10,000 or $15,000, at 60 days’ date, for use on tbe Janesville end of tbe road; and in case any drafts should be drawn for that purpose by me, I crave due honor on presentation, of wbicb due advice will be given yon, charging your usual commission for accepting; and for my drafts so drawn, Í agree-to deposit with you bonds of tbe city of Janesville, -at a margin of 15 per cent, as collateral security, and to place you in funds at least three days before tbe maturity of my drafts, otherwise you are to avail of tbe said bonds for your reimbursement without further notice.</p> <p>“ Respectfully yours,</p> <p>“A. Hyatt Smith, Pres’t.</p> <p>“Approved — R. J. Walker, Director and Trustee.</p> <p>“ In accordance with tbe above I beg to advise my draft in favor of A. Hyatt Smith, Aug. 8tb, 90 days, wbicb please honor for $1,700.”</p> <p>“New York, Sept. 28, 1853.</p> <p>“Messrs. Ward Brothers & Co.</p> <p>.“Gentlemen, — It is tbe desire of tbe company to extend tbe amount stipulated in tbe annexed letter, to an amount not exceeding in all twenty-two thousand dollars, upon tbe same terms therein set forth, and have to request you to honor my drafts in conformity.</p> <p>“ Respectfully yours,</p> <p>“A. Hyatt Smith, Pres. R. R. V. U. R. R. Co.”</p> <p>Herewith you will receive 23 bonds of the city of Janesville, for $1,000 each, to be held by you. as collateral in accordance with the terms-of the letter, and the receipt to be given by you to show more fully xhe nature of the transaction.”</p> <p>To this letter was attached a list of the drafts drawn by the railroad company on the defendants, among which was the acceptance in suit.</p> <p>The defendants also introduced in evidence the following receipt given by them to the company :</p> <p>“ New York, September 28th, 1853 — Received from A, Hyatt Smith, Esq., President R. R. Y. U. R. R. Co., twenty-three of 8 p. c. city of Janesville bonds of the par value of one thousand dollars each, as collateral security for his several drafts accepted by us (as advised), under his letters to us of the 25th August, and September 28th, as follows:</p> <p>[Here follows a list of drafts including the draft in suit.]</p> <p>“Said bonds are numbered as follows:</p> <p>la 9 - - - 9 61 a 68 - - - 8</p> <p>47 a 50 - - - 4 72 & 75 - - - 2</p> <p>Total.23</p> <p>' “ In case of non-fulfillment on the part of said company to place us in funds in accordance with tbe above-mentioned letters, authority bas been given to sell the said bonds for reimbursement, without further notice ; and their consent given us to use, transfer or hypothecate the same in the mean tinje at our option, we being required, on payment or tender of the amount of said drafts at any time before said drafts mature., or bonds shall have been sold, to return to said company an equal quantity of said bonds, and not the specific bonds deposited.</p> <p>“Ward BROTHERS & Co.”</p> <p>No evidence was offered by tbe defendants as to wbat bad been done with tbe bonds referred to in this receipt, or as to tbeir value.</p> <p>Tbe defendants offered to prove that, on tbe upper or Janes-ville end of tbe road, the line was entirely uncompleted; that the other end was partially completed; and that tbe defendants were creditors, as mortgage bondholders and otherwise, of tbe company to the amount of over $100,000 at tbe time tbe agreement above described was made. This evidence was objected to and excluded by tbe judge. It further appeared that tbe draft was passed by A. Hyatt Smith, President of tbe Rock River Valley Union Railroad Company, to tbe firm of II. O. Clark & Co., of lyhioh firm be was a member, as part of tbe capital which be bad agreed to invest in that firm, and that it was passed by them to tbe present plaintiffs, by whom it was applied on a debt due to them from H. O. Clark & Co., but whether it was in absolute payment and discharge of the debt did not very distinctly appear. On this evidence the judge directed tbe jury to find a verdict for the plaintiffs, and judgment having been perfected on tbe verdict which was rendered pursuant to this direction, the defendants appealed.</p> <p>I. To warrant an unqualified direction at tbe trial in favor of either party, the facts claimed to have been proved by tbe party against whom tbe direction or instruction is given must be undisputed. Rich v. Rich, 16 Wend. 676; Dwyer v. Sowzer, 6 ibid. 487 ; Orawfm-d v. Wilson, 6 Barb. 518.</p> <p>II. Tbe facts proved constituted a perfect defence to tbe action, and tbe court.erred in instructing the jury that, on tbe evidence, tbe plaintiffs were entitled to recover.</p> <p>1. Tbe plaintiffs did not take tbe draft in tbe regular course of trade, and were not holders thereof for value. Receiving paper on account of a pre-existing debt, even when received as so much payment, is not receiving it for value, or in tbe regular course of trade. Qoddingion v. Bay, 20 Johns. 651; Payne v. Cutler, 13 Wend. 605; ¡Stalker v. McDonald, 6 Hill, 93; Roosa v. JBrotherson, 10 Wend. 85; Holbrook v. Mix, 1 E. D. Smith’s R. 159.</p> <p>2. The acceptance bj a creditor of a bill or note of a third person, even when not indorsed by the debtor, never operates as a satisfaction of a precedent debt, unless it is expressly shown that such at the time was the understanding, even although a receipt is given acknowledging the bill or note to have been received as payment in full. Noel v. Murray, 1 Duer, 388; Mun-roe v. Hoff, 5 Denio, 362; 1 Smith’s Leading Cases, 256, note; Porter v. Talcot, 1 Cow. 359 ; Raymond v. Merchant, 3 ibid. 147; Burdick v. Creen, 15 Johns. 247. And see Fulton Bank v. Phoenix Bank, 1 Hall Sup. Ct. R. 574. ^||</p> <p>3. If the plaintiffs are not holders in the regular course of trade, and for value, the defendants can set up, as against them, the same defence which they could against the drawers or payees, viz.: a fraudulent diversion of the draft from the purposes stipulated between the drawers and acceptors when it was accepted. Wardell v. Howell, 9-Wend. 172; Brown v. Taber, 5 ibid. 566 ; Small v. Smith, 1 Denio, 583; Ontario Bank v. Worthington, 12 Wend. 593.</p> <p>III. The court erred in refusing to receive evidence of the special interest of the acceptors in the completion of the Janes-ville end of the road.</p> <p>I. There being no conflict of testimony, it was the duty of the judge to charge as he did.</p> <p>II. Defendants showed nothing impeaching the plaintiffs’ title as bona, fide holders of the acceptance.</p> <p>1. The plaintiffs received it for a valuable consideration in the usual course of business, before maturity, and without notice of any defect of title or consideration. Story on Bills, § 192; Story on Prom. Notes, § 195 and note; Frisbe v. Lamed, 21 Wend. 450; St. John v. Purdy, 1 Sandf. S. C. R. 9; Seneca Go. Bank v. Neass, 3 Comst. 442; Youngs v. Lee, 18 Barb. 187.</p> <p>2. The parties wbo transferred it to tbe plaintiffs so received it, and plaintiffs are entitled to all the benefit thereof. Same authorities; White v. Springfield Bank, 3 Sandf. S. C. R. 222; Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Sa-lina v. Babcock, 21 ibid. 499; Mohawk Bank v. Carey, 1 Hill, 513.</p> <p>III. The acceptance was not an accommodation one, nor made without consideration.</p> <p>1: Defendants agreed to receive a commission for accepting.</p> <p>2. They also had a deposit of negotiable eight per cent, bonds to the amount of $23,000, as a further consideration for the Upceptance. Byles on Bills, p. 177; Story on Bills, § 183; Cameron v. Chappel, 24 Wend. 94; Bow v. Schutt, 2 Denio, 621.</p> <p>3. The bonds were not merely received as collateral security, but were in law exchanged with defendants for the acceptance.</p> <p>IV". Defendants did not show any fraudulent diversion of the draft. No proof was given that it had not effected the substantial purpose for which it was made and accepted.</p> <p>Y. The evidence offered by the defendants, and excluded, was insufficient, if not irrelevant.</p>

- Motion by plaintiff for judgment on a verdict taken subject to tbe opinion of tbe court at general term. This action was brought upon a policy of insurance upon freight of merchandise, laden or to be laden on -tbe propeller General Warren, owned by plaintiff. Tbe question in the case was, whether plaintiff bad an insurable interest at the time of the loss ?

Appeal by defendant from a judgment of the Second District Court. The action was .brought to recover for ale sold and delivered to the defendant by the plaintiff’s assignor. The sale and delivery, and amount due therefor, were proved by the testimony of tbe plaintiff’s assignor, corroborated by that of D. 0. Fuller.

Appeal by tbe plaintiff from a judgment of tbe general term of the Marine Court, reversing a judgment in ber favor given upon trial before a single judge of that court. The general term reversed the judgment without further directions in respect to any future proceedings in the action.

The action was brought on a check, alleged to have been drawn by defendants under their firm-name of Billinge & Jones, on tbe Importers’ and Traders’ Bank, for $400, wbicb was averred to have been “ duly delivered ” to plaintiff before maturity, and to have been presented at maturity, but payment refused,-of wbicb defendants bad due notice. Billinge alone was served with process.

The action was brought to recover rent of certain premises consisting of lofts with steam power, hired by the defendant of the plaintiff. The hiring was from October to the first of May following. The steam-power furnished was not sufficient for defendant’s purposes, and on this account he removed from the premises about the 1st of December.

-Apptcat, by plaintiff from a judgment of tbe Third District Court. This action was brought to recover $100 for services alleged to bave been rendered to defendant by tbe assignor of • tbe plaintiff, as a broker, in negotiating tbe sale of a lot of land in New York city, owned by defendant, to one Kerr. Tbe evidence in tbe cause is sufficiently stated in tbe opinion of tbe court. The justice rendered judgment against tbe claim, and tbe plaintiff appealed.

<p>leave to appeal to the Court of Appeals, from a judgment of this court, in an action commenced in an inferior court, will only be granted where the case involves great interests, or settles a principle of law affecting the decision of numerous other cases.</p>

Appeal by defendant from an order of the special term overruling a demurrer to the complaint.

Tbe action was to recover damages for the breach of a contract for tbe sale and delivery of a horse by defendant to plaintiff. There was evidence tending to show that tbe horse was worth $300, while tbe purchase price agreed on was only $150; and tbe justice rendered judgment in favor of the plaintiff for $100 damages. Tbe evidence rebed on, to show a breach of tbe agreement by tbe defendant, appears in tbe opinion of tbe court.

Appeal by plaintiff from a judgment dismissing tbe complaint. This was an action to recover the value of a lot of cari# dies, alleged to belong to the plaintiff and to be unjustly detained from Mm by the defendant. The cause was tried before Judge Brady and a j ary, and the complaint dismissed. The facts are fully stated in the opinion of Judge Daly.

Appeal by defendants from a judgment upon a verdict. The action was brought upon a promissory note for $600, made by the defendants, William A. Allen and James M. Gray, as co-partners, to the order of the defendant Henry Erben, and endorsed by him and the defendants James Stringer and William A. Townsend. The answer of defendants Stringer and Townsend denied presentment, and notice to them, of protest; alsp denied plaintiff’s title to the note.

Appeal by defendant from a judgment of tbe Third District Court. This action was brought to recover $26.40, half a month’s storage of certain sugars sold by plaintiff’s assignors to defendant. The defendant pleaded a general denial, and also set up a counter-claim for $82, paid by him for insurance upon the sugars in question. It appeared, on the trial, that the sugars were sold by the plaintiff’s assignors to the defendant by a written bill of sale.

Appeal by plaintiff from a judgment entered on a report of a referee. Held: that the defendant could not recover by a counterclaim, in this action, damages for deficiencies in the work. From the judgment dismissing his complaint, entered on this report, plaintiff appealed. I. The defendant must be -deemed to have waived the production of any different certificate than such as was produced.

<p>Appeal by defendant, under § 866 of tbe Code, from a judgment rendered in a district court by default. Tbe action was for a violation of a city ordinance. The complaint did not specify the ordinance complained of, tbe blank left for tbat purpose in the form used not having been filled up. The defendant failed to appear, and judgment was rendered against bim. Tbe nature of his excuse for bis default, &«., is sufficiently stated in tbe opinion of tbe court.</p>

Appeal by defendant from a judgment of a district court. On the return of tbe summons in tbis case tbe defendant failed tdftppear. On the application of tbe plaintiff, tbe cause was adjourned, and the plaintiff left the court-room. Thereafter, but on the same day, and while tbe court was still in session, tbe defendant entered, and, at bis request, tbe justice entered bis appearance and received bis answer.

The affidavit of William Carlisle, on which the proceedings before the justice were based, stated that he was owner of the premises claimed (the back basement room of the house 47 Troj street, in New York city); that be rented them to Elizabeth Markey for one month ; that, daring that term, Catharine McCall, Jane McCall and Richard Carlisle entered on the premises under Markey, and she,, as deponent was informed and believed, demised the same to them; that the term had…

<p>Appeal by defendants from an order made at special term by Jl^ge Brady, directing judgment on account of tbe frivolousness of an answer. Tbe action was upon an undertaking given on appeal in tbe usual form. Tbe nature of tbe defence set up in tbe answer is stated in tbe opinion of tbe court.</p>

Appeal by plaintiff from au order of the special term denying a motion for leave to issue execution. The facts disclosed by the affidavit on which the motion was based were as follows:— In 1842, the plaintiff recovered judgment in this court against the defendant for $77.58. In 1854, he assigned the judgment to John M. Martin, who now applied, in the name of the plaintiff, for leave to issue execution.

The complaint alleged that about January 1st, 1854, the plaintiff made a contract with the defendant, whereby the defendant agreed to furnish paper for, and to print and bind for Me plaintiff, within thirty days, 2,000 copies of a book of memoirs, for the price and at the rate of $271 for each thousand copies, payable at three months from the completion of the work.

Appeal by defendant from a judgment entered ou tbe report of a referee. The action was for damages, for failure of defendant, as lessor, to givejalaintiiF possession of premises leased. On tbe trial before tlie referee, tbe plaintiff produced a written lease under seal, the form of which was as follows: “ This is to certify that I have let and rented unto Mr. John E. Dean — [Here follows description of premises, amount of rent, &c.] (Signed) “ Gr.

<p>To enable a broker to recover from a vendor of real property commissions upon tbe sale, he must show, not only an agency in effecting the sale,'but also that he was employed by the vendor to negotiate it.</p> <p>Where, in an action by a broker against a vendor of real property, the only evidence was, that plaintiff negotiated the sale, that the contract was 'drawn up and signed in the plaintiffs office, the defendants being present at the time, and that tho defendants had stated tó plaintiff that he must get his commissions from the purchaser — Heidi that there was no evidence of an employment of plaintiff by defendants, and that a judgment in favor of plaintiff for commissions was erroneous.</p>

Appeal by defendants from a judgment of tbe-Seventh. Dis; trict Court. This action was brought to recover damages for the loss of the plaintiff’s horse. The facts out of which, the action arose are sufficiently stated in the opinion of the court.

Appeal by plaintiffs from a judgment of tbe Sixth District »Court. This was an action to recover for work, labor and materials furnished in repairing a mill belonging to ibe defendant. The amount of the claim was $72.08. The mill was originally purchased by the defendant from the plaintiffs. The defendant alleged that they warranted it at the lime of the sale.

<p>r^i an action upon a premium note in a district court, an averment in the complaint, after setting- out the note, that “the company did, in the years 1850-1855, make assessments upon the said notes, and required the defendants to pay a certain portion thereof] which assessments the defendants have neglected and refused to pay,” is a sufficient averment of the making of assessments, and of a demand and refusal, to show a cause of action. If the defendant wishes more particular information, ho must apply to have the pleading amended.</p> <p>To sustain such an action, it is not necessary for the company to show that they have sustained losses. The statute vests in the directors the right of making assessments whenever they shall deem it necessary, for the honorable and prompt payment of losses, or of tho expenses of the company, and the rig-lit of deciding when such assessments are necessary.</p> <p>But only tlio amount actually assessed can be recovered in such action; and a resolution laying- an assessment of'-per cent, is a nullity, and can form no basis for a claim upon the note.</p> <p>The books of a corporation may bo proved by any person who was present when they were made, and who knows of his own knowledge that they are correct records of the transactions which they profess to record. The secretary need not be called to verify them himself.</p>

- Appeal by plaintiff from a judgment of the Marine Court. Tbe action was brought by tbe plaintiff, as assignee of the firm of Bates & Franc. The defence was a set-off. Judgment was rendered for tbe defendant, which was affirmed by the general term of tbe Marine Court, from which the plaintiff appealed. The .facts are fully stated in the opinion of the court.

Appeal by plaintiff from an order granting a new trial. This was an action brought to recover damages for injuries to the person of the plaintiff, occasioned by the falling of a staging. George Law, one of the owners of the steamer Ohio, employed the firm of Simonson & Lugar lo repair that steamer, and hired tiie dock of the defendants for that purpose.

Appeal by plaintiffs from a j udgment of the Marine Court at general term. This was an action for rent. The plaintiffs, in January, 1854, executed to tbe firm of Thompson & Eoesler a lease of tbe store No. 14 Maiden Lane, for two years and two months, from the first of March, 1854. The rent was $7,500 per annum, and was payable on the first days of May, August, November, and February, in eacb year.

Appeal by defendant from a judgment of tbe Marine Court. Tbis action was brought by the plaintiff, as receiver of the property, &c., of Aaron Woodruff. Aaron Woodruff, being insolvent and owing about $1,700, sold bis stock of goods to one A. D. Gale for $1,000. Gale was one of Woodruff’s creditors, and, by the agreement between them, Gale was to pay himself out of tbe $1,000, and apply tbe balance to the payment of tbe rest of Woodruff s debts.

Motion by plaintiff for judgment upon a case made. This was an action against the defendant Michael Doody, as principal, and David Draddy, as surety, upon a bond given by tbe former as constable of tbe city of New York, for tbe faithful performance of bis duty as sucb constable.

Appeal by plaintiff from an order of tbe special term, denying a motion to vacate a judgment entered on an award of arbitrators. By tbe affidavits on which this motion was founded, it appeared that tbe plaintiff bad preferred a claim against the defendants, a Jewish society, for services and disbursements in making passover bread, under a contract with them.

<p>Appeal by plaintiff from a judgment entered on tbe report of a referee. The action was brought by tbe plaintiff, as as-signee of Lucy Sherwood, to recover damages for tbe taking of personal property, claimed to be a part of her separate estate, and taken on execution against ber husband Daniel Sherwood. The cause was tried before a referee, who reported for the plaintiff for a small part of his claim. Judgment was entered therein, but was reversed on appeal by the defendants, and a now trial was ordered, upon the ground that the complaint was defective, in neither alleging that the plaintiff had made a demand subsequent to the assignment to him, nor that Lucy Sherwood had assigned her claim for damages against the defendants. See report of the case, ante, j age 178. The plaintiff then amended his complaint, alleging that Lucy Sherwood bad assigned her claim for damages as well as the property itself to him. Upon the second trial, the referee dismissed the complaint. The plaintiff appealed. The facts are stated in the opinion of the court.</p>

Appeal by plaintiff from an order discharging tbe defendant from arrest. This action was brought to recover $1,000, money borrowed. At tbe time of the loan, tlie wife of tbe defendant, whose maiden name was Josephine Wilson, was receiving from England, through the hands of James G. King & Sons, monthly payments of £15 each.

Case submitted without controversy on an agreed statement of facts, under section 872 of the Code. Held: or any amendment to or alteration of their jurisdiction, does not come within the range of amendments to the city charter. To amend or change the jurisdiction of a constitutional or state court, does not belong to an amendment of the charter of the cityrif New York.

Appeal by plaintiff from a judgment of the Sixth District Court. This was an action for rent. The defendant, by an agreement in writing, hired the premises No. 156 West 35th street, for sixteen months from the first of January, 1856. The agreement introduced 'by the plaintiff was signed by the defendant — the tenant — only. There was no evidence offered upon the trial, as to whether the plaintiff had given a written lease to the defendant or not.

This was an action, brought to procure an adjudication upon a will, and to obtain a decree declaring certain parts of it to be void. The will in question was that of Nathan Gilman, Jr. It contained, among other bequests, the following clause, which the plaintiff* the widow of the deceased, sought in this action to have declared void: “ Item.

Appeal by defendants from a judgment entered upon tbe ■report of a referee. Tbe facts sufficiently appear in the opinion of the court.

Appeal by defendant from a judgment of tbe Marine Court. This was an action to recover damages for an alleged conversion of personal property of the plaintiff. Judgment was rendered for $127 for the plaintiff, by the justice who tried the cause, which was affirmed at the general term of the Marine Court. The defendant appealed. The facts are stated in the opinion of the court.

Appeal by defendant from an order in proceedings supplementary to execution. In December, 1856, tbe plaintiffs recovered judgment against tbc defendant for $8,031.01. Execution was issued thereon and returned unsatisfied, and proceedings supplementary to execution were thereupon commenced.

Appeal by plaintiff from a judgment of the Marine Court. . Charles (x. Stoppani leased the premises No. 32 City Hall Place to Joseph Nathan, for the term of three years from the first of May, 1854, E. Cottengcr becoming Nathan’s surety for the punctual payment of the rent. Nathan assigned the lease to Jean Schoenfeld, who, in turn, assigned it to J. W. Weinrich, who agreed to pay the rent therefor to Schoenfeld, the defendant, C. B. Richard becoming his surety therefor.

<p>Appeal by plaintiff from a judgment of tbe Fourth District Court. The facts are fully stated in the opinion of the court.</p>

Appeal by defendant from a judgment of the Third District .Cc^rt. The appeal was taken on the ground of error in fact; that the judgment was prematurely rendered in the absence ■of defendant, on the 18th of March, when the cause had been •.adjourned to the 19th. Affidavits were submitted on both sides, .on the question whether the 18th or the 19th was, in fact, the adjourned day.

<p>The acceptance by a creditor, from his debtor, of a sum less than the entire debt in full payment and discharge, and the giving of a receipt therefor, expressed to be in full, does not operate to discharge the debtor. He can be discharged only by a release under seal.</p> <p>But a mutual agreement by various creditors with each other to receive from a debtor a sum less than their respective claims, or sucli an agreement by a single creditor with his debtor, upon tbe faith of which other creditors are induced to make a similar compromise, is binding. The benefit which each creditor gains by the engagement of the others to forbear, and. the consequent securing of a fund for the mutual benefit of all, is a sufficient consideration to sustain such an agreement.</p> <p>li seems that whore the debts lie in simple contract the composition agreement may be by parol.</p> <p>C., having made an agreement with a number of his creditors to compromise at the rate of forty cents on the dollar, made a similar agreement with one \V., to whom he paid forty per cent, of his indebtedness to him, receiving from him a receipt in full. Ho also gave him a sealed agreement to g-ivo his note for forty per cent, additional as soon as his compromise should he completed with all his creditors, on condition that W. would sign a paper purposing to compromise his claim for forty per cent. The latter engagement was never performed.</p> <p>there being no evidence that the other creditors of C. were induced to compromise by the action of W.,* that W. was entitled to recover the balance of his debt from C!</p>

This action was brought by tbe plaintiff as judgment creditor of tbe defendant George A. Keim, to set aside, on tbe ground of fraud, a conveyance made by George A. Keim and bis wife to tbe defend int Chamberlin, and by Mm convoyed to Mary E. Keim, tbe wife of George A. Keim. Upon tbe trial, tbe plaintiff offered in evidence a judgment in bis favor, against tbe defendant George A. Keim, entered on confession.

Appeal by defendants from a judgment of the Sixth District Court. This was an action on a due bill made by tiie defendants in the following words: “New York, April 9tk, 1857. “ Balance due Mr. John J. Yan Allen sixty dollars on one horse. “ $60. (Signed) Allen Bp.othees.” . The nature of tbe defence and tbe facts in tbe case are fully stated in tbe opinion of tbe court.

<p>Appeal by defendant from a judgment entered by default in tbe Second District Court. Tbe return of tbe justice stated that a summons was duly issued, requiring tbe defendant to appear and answer, &c.; “that tbe said summons was, by tbe return, duly made thereon by B. Carpenter, one of tbe constables of the city and county of New York, certified to have been served, with tbe complaint verified, on tbe defendant in person in the city of New York, on the 12th 'day of June, 1857that on the return day tbe plaintiff appeared, but tbe defendant did not," whereupon judgment was rendered for tbe plaintiff for tbe amount specified in tbe summons and complaint, without further proof. A verified complaint, entitled in tbe cause, was attached to the return, but was not referred to therein. This complaint averred that the defendant was indebted to one-Cornell in the sum of $17, “ on an account, for the settlement of the closing of a partner? ship of the firm of Baker & Cornell,” which account and claim Were assigned by Cornell to the plaintiff “ on or about the-day of-,” and averred a demand of payment thereof from the defendant, and a refusal by him to pay.</p>

Appeal by defendant from a judgment of tbe Marine Court at general term. This action was brought upon a promissory note made by Ibe defendant, payable to tbe order of one A. B. Capwell, and endorsed by bim. It was discounted at tbe Atlantic Bank, in the city of New York, for Mr. Capwell, was protested for non-payment, and was taken up the day after; by whom it did not appear.

Appeal by defendants from a judgment of the Fourth District Court. The action was upon two orders for $10 each, negotiable, given, the one to Cornelius Desmond and the otfier to Kob-ert Williams, and both assigned to the plaintiff. The drafts were lost by the plaintiff, and were not produced on the trial, nor was any bond of indemnity against them tendered. It did not appear that the defendants made any objection to the recovery upon that specific ground, or demanded a bond.

This ivas an action upon a promissory note, made by the defendant, payable to bis own order, indorsed by liim, and bald bv tbe plaintiffs.

Appeal by defendants from an order at special term, denying a motion for leave to amend an answer. This action was brought, to recover a sum of money alleged to have been loaned to the defendants by William B. Hatfield, in his lifetime. The original answer denied the loan of money, and averred that WMiam.

Appeal by plaintiff from a judgment of the First District Court. The facts are fully stated in the opinion of the court.

<p>Ho acknowledgment or promise is sufficient evidence of a new or continuing contract, to take a case out of tlie oporation of the statute of limitations, unless contained in some writing signed by the party to bo charged thereby.</p> <p>The effect of the enactment of the provision in the Code of 1849, requiring such promise to he in writing, is to establish a new rule of evidence for all cases, where the action is brought after the period limited by statute.</p>

Appeal by defendant from an order of reference. The facts are stated in the opinion of the court. I. The action is not referable, under the Code, without the consent of parties. Code, § 271. 1. The trial of the issues of fact, in this action, does not require the examination of a long account on either side.

<p>In an action upon a draft, or chock, for $3,168, the defendant, in his answer, alleged that the chock was given in payment of certain property purchased by him from the plaintiff, and warranted by the latter to bo of a certain quality; averred a breach of the warranty, and claimed to recoup $500 damages therefor.</p> <p>JMd — a proper case for an order, under § 214 of the Codo, directing the defendant to satisfy part of plaintiff’s claim admitted to be due.</p> <p>Buie 35 of the court, allowing twenty days for the payment of costs, or the performance of any condition imposed by an order, has no application to such an order, which may be enforced cither as a judgment or as a urovisional remedy.</p>

<p>Bail are entitled to be discharged upon the death of their principal, and they have, themselves, an undoubted right to make the motion for such discharge.</p> <p>There is no arbitrary or positive rule in respect to the time when the presumption of death may be drawn from the continued absence of a person. It is not necessary that seven years or any specific period should elapse, to lay the foundation for such presumption, but it may be drawn whenever the facts of the case will warrant it.</p> <p>If the party, whose death is in question, went to sea, and nothing has been heard of the vessel in which' he left, or of those who went in, hei, the presumptipn, _ after a sufficient length of time has expired, will be that the. vessel was lost, and that all on board .of her perished.</p> <p>"What s a sufficient length of time to create such a presumption considered, and tho cases upon the question collated and examined.</p> <p>T. having departed upon a voyage, the ordinary limit of which was four months, _ and seventeen montlis having expired, and nothing having been heard of th,e. vessel in which he sailed, or of those who were in her, and the period of time being much more than sufficient to have heard from all the commercial ports of the world—</p> <p>Held, that it must be presumed that the vessel was lost, and that those .on board of her, including T., had perished; and therefore his . bail were entitled to bo disr charged.</p> <p>The presumption of death in such a ease does not. rest upon the fact that the party, has been absent and unheard of for such length of timé alone, but upon the weightier circumstance that the vessel has not been heard from. .</p> <p>The question in such a case is not, whether it is not possible that the party Smy bo. alive, but whether these circumstances do not present so strong a probability of his death that a court of justice should act thereon. Presumptions founded in a.' reasonable probability must prevail against mere possibilities. Otherwise the-conclusion could never be arrived at, that a man was dead- until the natural limit of human life had been -reached.</p> <p>Porinal and preliminary objections, not involving the merits of.a.motiou, will not be, considered upon appeal, unless it affirmatively appears that they were taken and overruled, when the motion was brought on for a hearing.</p>

Appeal by defendants from an order at special term granting an extra allowance. This action was tried before one of tbe judges of tbis court and a jury, in February, 1853, and a verdict rendered for tbe plaintiff for $6,000, A stay of proceedings was ordered and a case made, - on which tbe defendants moved at special term for a new trial. In March, 1854, a new trial was ordered.

<p>In an action brought against a firm of the name of I. K. & Brothers, M. K. was, by mistake, named as defendant instead of H. K. Although no summons or complaint was ever served upon him, he appeared and answered, denying that lie was a partner in the firm. The plaintiffs then moved for leave to discontinue against him without costs, and to substitute the name of H. K. for that of M. K, where-ever it occurred in the summons and complaint. On appeal from the order granting the application, Seld,</p> <p>I. That the order rested in the discretion of the court, and was not appealable.</p> <p>II. That the circumstances of the case fully warranted the order as granted.</p>

<p>This court has jurisdiction of all actions against the corporation of the city of New York, upon any cause of action whatever, -whether it be of a legal or equitable nature.</p> <p>So held in an action to restrain the enforcement of an ordinance of the corporation, upon the ground that it was passed in violation of an agreement entered into by the corporation with parties affected by the ordinance: and also that it was illegal anj^Aiauthorized by law.</p> <p>Che Board of Metropolitan Police Commissioners are not state officers, within the meaning of Chap. 488 of Laws of 1851, 'p. 920. They are officers of a locality or district, .and, in a proper caso, may be restrained by this court, in the exercise of its equity powers, in like manner and to the like extent as other local or county officers.</p> <p>The only limitation upon the legislative power and control of the corporation of New York city over the streets within its limits is, that they shall be appropriated to no use or purpose which is not alike free and common to all travellers. This power cannot be surrendered, either in whole or in part, into the hands of any person or persons, without previous legislative sanction.</p> <p>ft seems that converting the streets to railroad purposes, and permitting rail tracks to bo laid upon them, and used by an association or individuals for carrying merchandise or passengers for hire, is devoting them to an exclusive use, and cannot be permitted without the express authority of the legislature.</p> <p>And although the power to grant this permission must be derived from the legislature, yet the corporation, by exercising it, is not deprived of its control over the streets in all other respects; and it may, in the grant, impose such conditions respecting- the manner in which the rail tracks shall be used, and upon which the future use thereof shall depend, as it may think proper.</p> <p>By the act of the legislature incorporating the N. Y. & H. R. R. Co., passed April, 1831 (Laws 1831, p. 323), it was provided, that nothing contained in it should authorize the construction of their railway across or along any of the streets of tho city of New York without the consent of the mayor, &c., who were thereby authorized to grant permission to so construct it, or to prohibit its construction; and, if constructed, to regulate the time and maimer of using the same, and the speed with which carriages might move on it.</p> <p>In December, 1831, on the application of the company, an ordinance was adopted by the mayor, Ac., permitting the track to be laid in certain streets, providing, however, that if, after its construction, it should, in the opinion of ttie mayor, &e., constitute an obstruction or impediment to the future regulation of the city, or the ordinary uses of any street or avenue, the company should forthwith provide a satisfactory remedy therefor, or remove the rails; and, also, expressly reserving and retaining to the mayor, &c., the right to regulate the description of propelling power to be used on the track, and the speed of the same, as well as all other power reserved in the act of incorporation. The ordinance was to have no binding force, or go into effect, until the railroad company, in writing and under seal, covenanted to abide by and perform its conditions. An agreement of this nature was executed and filed in the office of the city comptroller, and thereupon the company laid their track on the Fourth avenue and other streets. In December, 18S4, the mayor, &e., of New York prohibited the running of steam engines, or locomotives, on the track of the company on Fourth avenue south of Forty-second street, after eighteen months from that time.</p> <p>Held, 1. That the ordinance was valid, and was not a violation of any of the franchises granted to the railroad company. ^</p> <p>2. That granting permission to lay the track did not deprive the mayor, &c*from subsequently regulating its use by the company.</p> <p>3. That the agreement of the company was valid as a restriction upon its corporate power, and was in no sense a transfer of it.</p> <p>4. That the corporation can make no valid contract which will interfere with its legislative control over the streets; and any such contract, if made, is revocable at its pleasure.</p> <p>A party, applying to a court for the application of its equitable powers, should be held to the rule, “that he who seeks equity must do equity.” He will not be allowed found his claim upon a permission in a contract, while he repudiates the conditions upon which the permission was granted.</p> <p>A corporation, like an individual, may be bound by an implied contract, provided the subject matter of it is within the scope of its corporate authority.</p> <p>Courts are bound to assume, where a discretion .is vested in a municipal body, exercising functions of a legislative character, that good reasons existed for doing an act which was the result of such a discretion.</p> <p>The duty .of enforcing all the public ordinances of the city of New York, especially those applicable to police or health, is imposed by law upon the Board of Metropolitan Police Commissioners. The ordinance in question might be classed under either head.</p> <p>When a motion is brought before the court upon an order to show cause, the order is regarded as a notice of motion, and the party obtaining it entitled to open and close the argument.</p>

At Special Term, February 8tk, 1859. . MOTION to dismiss complaint. This was an action of claim and delivery, brought to recover the possession of certain gambling apparatus and obscene pictures.taken from tbe plaintiff’s premises by Police Justice Connolly, and delivered by bim to tbe custody of tbe defendant, as property clerk of tbe Board of Police Commissioners.