Volume 1 — Jones & Spencer's New York Superior Court Reports

William and John Gregory were brothers. John Gregory made his will, in and by which he provided and declared as follows : . “ Secondly.

<p>As a general rule, the words of a covenant in a written instrument ■ that are intended to create a lien upon personal property, should clearly indicate that such lien is created and attaches, and takes effect upon the subject matter at the time of the execution of the instrument.</p> <p>In all cases the words asserting the lien should speak in presentí,” ii intended to create or vest a lien at the time of the execution of the instrument.</p> <p>When the words of a covenant, relating to a proposed lien, express future action of the parties for the creation of the same, and it also appears that the subject matter of the proposed lien is not in being, but must be brought into existence, to admit of any lien thereupon, the just and logical conclusion follows, that future action for the creation of the lien was intended by the parties, and no lien was created by the covenant.</p> <p>Notice of an alleged claim or lien will not make it valid when invalid before the notice. It is only when the alleged lien can be sustained and adjudged as valid, that the question of notice can affect the case.</p> <p>The case of Wood 0. Lester (29 Barb. 145) reviewed and commented upon.</p>

<p>l. Married women.—Husband and wife.—Personal property.—A. Effects of the acts of 1848, 1849, 1860, 1863.</p> <p>1. Where the marriage takes place in England, and the parties subsequently come to this State, the wife having the possession of and bringing with her certain money, p^rt of which belonged to her before marriage, and the balance of which she acquired in England by her own labor subsequent to the marriage; the title to and property in said money is governed and to be determined by the common law of England, in.the absence of proof of any statutory enactment of that country on the subject; and the statutory enactments of this State have no bearing on the question.</p> <p>3. Being so determined, the money is the property of the husband.</p> <p>II. Burden of proof.</p> <p>1. If in said case the wife claims the money as hers, it devolves on her to show a change of property from her husband to her.</p> <p>a. The property in the money so brought in this State is not, by mere force of the married women’s acts of this State, transferred to the wife.</p> <p>b. Gift or transfer, presumption of. When both parties supposed that the money belonged to the wife by law; either by a transfer effected by the mere force of our State law, or by force of some statutory provision of the English law, a presumption of a gift or transfer will not arise from the husband’s acquiescence in the wife’s possession, his asking her a loan of a portion of the money, his payment back of a part and promise to repay the whole.</p> <p>1. No opinion is intended to be given as to whether such acquiescence, loan, payment and promise would in any event afford a presumption of a gift or transfer.</p> <p>m. Married, women carrying on business with capital furnished hy husband. Hffect of.</p> <p>1. In such case the business, its stock, accretions, profits and new stock purchased, will, as to the creditors of the husband, be regarded in law as belonging to him, except as to such new stock only which his wife can identify and prove as having been bought on her credit and not paid for, or bought with her money with the intent that the property therein should vest in her.</p>

<p>I. Negligence contoibutory by passenger. Defective eyesight.</p> <p>1. Defective eyesight does pot absolve from the use of the organs of hearing.</p> <p>2. Where a passenger, whose vision is so impared that he is able to see only ninety or one hundred feet, is about to alight from a train, and a train is approaching, the noise of which can be heard a mile, he is bound to wait until he can see, by the use of his impaired vision, that the way was clear.</p> <p>a. Evidence of negligence. Consequently, if such a passenger in alighting from the train in which he was, and attempting to cross the track on which such approaching train is coming, receives therefrom aP injury, he is chargeable with contributory negligence, in that he neglected to make a proper use of his organs of hearing.</p> <p>3. Excuse f oí- omitting ordinary precautions. What is not.</p> <p>a. A brakeman calling out on approaching a station the name of the station, is neither a guaranty nor an intimation to the passengers that it is safe to leave the cars.</p> <p>b. Such outcry does not relieve the passengers from using the precautions, care and diligence in leaving the train, which they would otherwise be bound to use.</p>

This is an appeal from an order denying a .motion to vacate an order of arrest. The action was commenced by the service of a summons for a money demand on contract issued under subdivision 1 of section 129 of the Code. Ho complaint was served with the summons, nor has one yet been served.

The action was brought by Bussell D. Miner against Annie M. Beekman, Hugh Crombie and others, to redeem five lots of land in the city of Few York, situated on Fourth-avenue, between Eighty-fifth and Eighty - sixth streets, from the lien of a mortgage, and to recover possession. The complaint alleged: That Isaac M. Woolley, the owner, and his wife, made a mortgage upon said premises to Leonard W. Lawrence, November 8, 1838, to secure one thousand dollars, payable in one year.

This action is brought to recover damages for not safely carrying and delivering certain goods entrusted to the defendant for its carriage as a common carrier.

The plaintiff entered into a contract with the defendant, whereby he agreed to serve the defendant as salesman for a period of time extending from January 1, 1868, to December 31, 1868, for the sum of two thous- and four hundred dollars per annum. The present action grew ont of this contract. Tne plaintiff in his complaint alleges that he performed his duties as salesman under the said contract, until about November 27, 1868, when the defendant discharged him.

This-action was tried in December, 1869, before the court and a jury. The court directed a verdict for the plaintiff, and ordered the exceptions to be heard in the first instance at general term, and it now comes before the court upon a case and exceptions.

These several actions were all referred in June, 1870, - ' to Hon. William Mitchell, Thomas Houston and Francis K. Thurber, and tried together before said referees, and submitted on July 5, 1870, and on July 6 the referees met and consulted and deliberated together, in regard to their decision and report in the case, and concluded that they could not agree upon a report, and separated, after authorizing referee Mitchell, one of their number, to inform the counsel of the…

The cause was tried in April, 1870, before the court and a jury, and resulted in a verdict in favor of the plaintiff for the sum of fourteen hundred and fifty dollars. Upon the coming in of the verdict, the defendant moved upon the court minutes for a new trial, which motion was denied, and afterwards judgment was perfected upon said verdict for the plaintiff. Defendant appealed from the order denying the motion for a new 'trial, and from the judgment.

<p>In the case of a'nonjoinder of defendants, and appearing on the face of the complaint, a demurrer is the proper remedy. If the defect does not thus appear, the defendant may set it up in the answer, but if no objections are taken by demurrer or answer, they shall be • deemed as waived (Code, §§ 144, 141,148).</p> <p>Objections to parties must be taken in this way, and cannot be made for the first time at the trial of the action.</p> <p>When a complete determination of the controversy cannot be had without the presence of other parties (additional to those of the record), the court must cause them to be brought in {Code, § 122).</p> <p>Such action of the court may be invoked by motion of any party, or may proceed by the direction of the court as of its own motion, based upon the facts and circumstances appearing in the case, but in such case the court should not nonsuit or dismiss the complaint because of this defect that thus appears for the first time, and which was not theretofore noticed or objected to by any party.</p> <p>The court should make such an order in the premises as will preserve the rights and equities of all parties interested in the subject matter of the action, whether of the record or otherwise, and ample time given to all parties to prepare for and meet the changed order or issue in the case.</p> <p>The rulings on section 122, of Code, appearing in the case of Sheldon 0. Wood, 2 Bosw. 267, and 24 N. T. 607, cited and approved.</p>

The pleadings in this action consist of a complaint and answer, of which the following are copies.

Motion to dismiss an appeal heard before the six judges of the court, at the December general term, 1870.

The complaint alleged that the plaintiffs were lawfully seized in fee, and were the owners, and were entitled to the possession of certain premises, situate, lying and being on the easterly side of Crosby-street, in the Fourteenth Ward of the city of New York, bounded and described as follows, viz: Commencing at a point on the easterly side of Crosby-street, on the division line between the lots distinguished on a map made of the lands of Nicholas Bayard, by the numbers…

In August, 1851, Hogan, the plaintiff’s testator, contracted to sell to one Willock, certain lots in this city ; and agreed to make advances of money, to assist Willock in building ; and when the buildings were enclosed, Hogan was to convey the lots to Willock, and Willock was to execute a mortgage to Hogan, for the purchase money and advances.

The only questions argued upon this appeal, arose upon the refusal below, to dismiss the complaint. The action was to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants’ servant. The motion to dismiss was on the ground that the evidence showed concurring negligence of the plaintiff, and did not show any negligence on the part of the defendants.

<p>Collision. Vehicle on track immediately in front of the horses attached to a horse car.</p> <p>1. Negligence, what constitutes in driver of vehicle.</p> <p>A. Turning off of the track at right angles.</p> <p>2. Negligence, what does not constitute in driver of the ea/r.</p> <p>B. Non-stoppage of the car in time to prevent collision. Held, where the driver of a cart driving along a track immediately in front of the horses attached to a car suddenly turns off of the track at right angles, and the car collides with the cart, that</p> <p>1. The driver of the cart was guilty of negligence.</p> <p>2. The driver of the car was not guilty of negligence.</p> <p>Streets. Railroad’s exclusive, or peculiar, right of, to.</p> <p>Dictum, in Willard v. Eighth Av. R. R. (3 Bosw. 314), to the effect that city railroad corporations have a peculiar right to the highway, repudiated.</p> <p>The doctrine of the cases of Baxter v. Second Av. R. R., 3 Bolt. 511; Barker v. Savage, 1 Sweeny, 288; Belton v. Baxter, Ante,—approved.</p>

This action was to recover damages for injuries sustained by the plaintiff, through the alleged negligence of the defendants’ servants. The facts will sufficiently appear in the opinion of the court. The action was tried before Mr. Justice Joses and a jury. A motion was made at the close of the evidence to nonsuit the plaintiff, which was denied. The case was submitted to the jury under the charge of the judge, and a verdict was rendered for the plaintiff.

This action was to foreclose a mortgage made by the defendants, Browning and Moore, dated August 4, 1868, to secure to the plaintiffs the payment of twenty thousand dollars. The complaint alleged, amongst other things, that Geissler and Faussel, two of the defendants, had, • or claimed to have, some interest in or lien upon the mortgaged premises, but which had accrued subsequently to the lien of the mortgage.

This action is brought by plaintiff, who is the author of a work entitled “ Our Eulers and Our Eights; or, Outlines of the United States Government,” against the defendant, who published the work under a contract with the plaintiff, to recover the sum of five per cent, on -the retail price of eight thousand copies of said book, which number of copies he alleges the defendant published, and which sum of five per cent, he alleges was to be paid to him under the contract.

<p>Appeal from a judgment.</p> <p>The plaintiff alleged, that he was employed to superintend the operations of the “Hocking Valley Oil and Coal Company,” a corporation organized under the general manufacturing act of this State, at a salary of one hundred and twenty-five dollars for the first month, and one hundred and fifty dollars per month afterwards. That he continued in their employment for one year and eight days, when there was found to be due to him the sum of one thousand and four dollars and twenty-eight cents, for which the company gave to the plaintiff their promissory notes. The notes not being paid at maturity, the plaintiff obtained judgment against the company for the amount.</p> <p>The defendant was a trustee and stoelcholder of the company, and the plaintiff sought to charge the defendant for the debt of the company, on three several grounds, namely:—First, as a stockholder, that no certificate that the capital stock had been paid in, had been filed; and, Second, that the indebtedness of the company was for services. Third, as trustee, that the company had never filed an annual report.</p> <p>It appeared on the trial that the company was incorporated November 21, 1864. In the certificate of formation, it was provided that the number of trustees who should manage the concerns of the company, for the first year,” should be five, and the defendant is named as one of the five.</p> <p>The plaintiff continued in the employment of the company until May 8, 1866. One of the company’s notes given to the plaintiff, bears date April 1, 1866, and was payable in thirty days. The other bore date June 28, 1866, and was payable one day after date.</p> <p>No certificate of the paying in of the capital stock of the company, had ever been filed; nor had the company, at any time, filed any annual report; nor was there any proof that there had or had not been, at any time after the formation of the company, any election of trustees.</p> <p>It was proved that the plaintiff was also a stockholder of the company.</p> <p>There was some evidence which it was claimed tended to show that the defendant had acted as trustee down to the time the notes were given.</p> <p>That evidence was, that the defendant was present when the settlement was made with, and the notes given to, the plaintiff, and took part in the meeting. The only evidence in respect to the nature of the services, was as follows:—</p> <p>The plaintiff, who was examined on his own behalf, was asked if he had been employed by the company, and he answered:</p> <p>I was. I was employed by Mr. Puleston the defendant and Dr. King, in the Spring of 1865, the first of May. Mr. Puleston did not tell me he was secretary of the company at that time. I was there to oversee the work and to develop their property in forcing wells. That was my business there, to endeavor to obtain oil.</p> <p>Q. Did you bore wells ? A. Yes, sir. I was one of a gang that undertook to bore.</p> <p>Q. State what you did ?</p> <p>A. I was one that helped to put down wells. I sharpened the tools, and did any kind of work that was done, a portion of it.</p> <p>Q. When did you commence to work for the company ?</p> <p>A. I commenced the first day of May, 1865.</p> <p>Q. What was said to you in respect to working before you went there, at the time you were employed ?</p> <p>A. There was considerable said.</p> <p>Q. State what was said by Mr. Puleston ?</p> <p>A. Mr. Puleston gave me a history of the work and the way it had been conducted.</p> <p>Defendant’s counsel moved to dismiss the complaint on the grounds:</p> <p>First. This action being brought against the defendant as a stockholder, the plaintiff cannot recover, it being in evidence that he is himself a stockholder in the company.</p> <p>Second. The plaintiff cannot recover against the defendant as trustee, because he has not proved that at the time of the creation of the debt the defendant was a trustee.</p> <p>Third. This action cannot be maintained to charge the defendant upon his individual liability as stockholder upon the ground of service rendered to the corporation, because the services of a superintendent are not such services as are contemplated by the statute.</p> <p>Fourth. The plaintiff having recovered against the company a judgment which, upon its face, shows simply a debt of the company upon promissory notes, cannot, upon the evidence furnished by such judgment, maintain an action against the defendant to charge him upon his individual liability as stockholder for services rendered to the company.</p> <p>The motion was denied, and the defendant excepted.</p> <p>The defendant asked the court to charge the jury, that if they found, that after the making of the note, and at the time of its maturity, there was no evidence to show that the defendant was acting as trustee, the plaintiff could not recover.</p> <p>The request was refused, and the defendant excepted.</p> <p>The court directed a verdict for the amount claimed.</p> <p>The defendant appealed.</p>

In November, 1862, the defendant’s bark Antietam being ashore near the Delaware Breakwater, he sent the following telegram to his agents in New York : “ Dated Lewes, Del., 13, 1862. “Received New York, Nov. 13, 1862. ‘To Metcalf & Duncan : ‘ ‘ Send me small tug-boat, steam-pump, engineer, my diving apparatus and diver, or telegraph -Eben Eaton, 90 Bolton-st., South Boston, to' come. Make the best trade you can. “W. A. FARNSWORTH.” Messrs.

<p>Where one of the joint makers of a note or bond dies, no recovery can be had against his estate at law, upon such note or bond.</p> <p>The only remedy is against the surviving maker of said note or bond. This rule of law subject to an exception, where the bond or note was given to secure a joint debt or liability of the parties thereto.</p> <p>This rule of law is one of the common law, and the Code of Procedure has not changed the same. Section 136 affects only the practice.</p>

<p>The ruling of a referee in regard to the admission of testimony on the part of plaintiffs at one stage of the trial, which as the pleadings then stood was erroneous and subject to an exception, may be cured by subsequent proceedings on the trial on the part of plaintiff, such as an amendment of the complaint and testimony based upon such, amendment, by which it appears that plaintiffs was not prejudiced by the rejection of the evidence in the first instance.</p>

The deféndant was the proprietor of “ Sweeny’s Hotel,” in this city. The house was kept on what is called the “European plan,” i. e., the renting of rooms, with a restaurant for meals.

The action was for personal injuries sustained by the plaintiff, caused by the alleged negligence of the defendants’ servants. The complaint alleged that the defendants were the owners of the steamship “ Columbia.” That the plaintiff was on board the lighter “Florence,” engaged in unloading the steamship, when through the negligence of the defendants’ servants, a bale of tobacco was dropped upon the neck and shoulders of the plaintiff, and another fell upon and broke his leg.

The action was to recover first the snm of five hundred dollars, for extra work done and performed by the plaintiff for the defendants, and second, upon a special contract made by the defendants to pay the plaintiff one hundred dollars a week, during the time the work in the defendants’ distillery was suspended. Bice was the only defendant served.

On February 1, 1870, there existed at the city of New York, a firm under the firm name of George W. White & Co. The members of this firm were George W. White, Albert B. Colfax and Charles B. Overton as general partners, and Nathaniel Whitman as special partner.

The facts of the case sufficiently appear in the opinion. Francis H. DyJcers, attorney and of counsel for respondent made, on the question involved, the following point.

<p>Mechanics’ Lien.—Power of General Term to restore. On reversing a special term order discharging a mechanics’ lien, and vacating an order continuing the lien, the general term may include in the order of reversal, an order requiring the county clerk to restore the lien and the record of the order continuing it.</p>

<p>Negligence.—Passenger case.</p> <p>1. Contributory negligence by passenger in alighting from a horse car.</p> <p>If, when a horse car has reached its terminus on the up trip, and is about to start on its return trip, it is negligence in the driver to start until he has ascertained that all the passengers on its up trip, who wish to alight, have got out, it is contributory negligence on the part of one of said passengers, who delays in attempting to alight, until he sees the horses passing along the side of the car for the purpose of being attached to the other end, so as to proceed on the return trip, to persist in said attempt without first in some way attracting the attention of the driver or conductor to the fact that he desired to alight, or taking some other precaution to prevent being thrown off by reason of the motion of the car.</p>

<p>This was an appeal from an order of the special term. The facts sufficiently appear in the opinion of the court.</p>

The plaintiff obtained an attachment against the bark Harriet, under State statute of April 3, 1863, on his claim for services as a stevedore, in loading the vessel. The defendants gave a bond to procure the discharge of the vessel, and. the action in the court below was brought to recover on this bond, the amount of the claim of the plaintiff.

Exceptions ordered to be heard at general term. The action was to receive a balance of purchase money of a stock of goods. In March, 1865, Branigan, the plaintiff’s assignee, sold and delivered to the defendant, for a consideration of four thousand dollars, his stock of goods in the store No. 65 Mott-street in this city.

This action was brought to recover the Value of certain materials furnished and services performed by the plaintiff, for the defendant, in altering and repairing the house of the latter.

<p>Where a building contract provides that a certificate of the performance of the work must be obtained from the architects, before payment could be required, and the facts were, that the contractors applied for, and were refused such a certificate by the architects, without the architects pointing out to, or claiming of the contractors, that any material defect or incompleteness in the work existed,—Held, that the sensible and legal ■ interpretation of that clause must be, that an approval of their work, based upon the requirements and specifications of the contract, was required and meant. That the expression or non-expression, of the approval or non-approval, of the architects, or of their mere will or determination, without reference to the contract, was not the object or subject of this clause, nor within its letter or spirit. Their refusal to certify must be based upon, and supported by, some real and substantial failure on the part of contractors to fulfill their duties under the contract, and such failure should be pointed out and protested against by the architects under whose direction the work progressed. It must appear that the work was not performed as provided in the contract, and that the contractors were not really entitled to the certificate, if a party relies upon the absence of such certificate, or the refusal to give it by his architects, to defeat an action to recover for the work under the contract. If it appears that the work was well and properly performed, according to the contract, the refusal of the architects to give the certificate does not affect the case.</p> <p>In the case of a contract to do and perform certain work by a day named, and the parties afterwards vary the terms of the contract, by a change of, or an addition to, the work that required more time to perform, and the contractors went on with their work, with the consent of their employer, beyond the time named in the contract, and the work was finally performed, substantially, as provided in the contract, except as to the time named therein, within which it was to be finished.—Held, that this extension and addition to the work described in the contract, and the assent of the party requiring the same, that the contractors should go on beyond the time mentioned in the contract, to finish the same, operated as a deviation and change in the terms of the contract, so far as the same related to the time of the completion of the work, and estopped and precluded the party from setting up or claiming to recover against the contractors, damages for the non-completion of the whole work within the time appointed in the contract.</p>

On exceptions ordered to be heard at the general term in the first instance. The defendant was owner of the steam propeller Oceanus, running between Providence and New York, and on May 23, 1868, received on board that vessel, at Providence, certain goods to be carried to New York, and there delivered to the plaintiffs.

The action was ejectment. The answer contained a general denial and a claim of adverse possession, under claim of title, for more than twenty years.

This action was brought to recover two hundred and fifty dollars damages for the wrongful conversion by the defendant, of a horse, the property of the plaintiff. The defendant justified the taking, as being by and under the direction of one Felix V. B. Kennedy, who had been appointed a receiver of the property and effects of the plaintiff by the court of common pleas, in certain proceedings supplementary to execution in an action' pending in said last named court.

The action was brought to recover damages for injuries sustained by plaintiff, a printer by trade, while riding upon one of defendants’ cars, on the ground that such injuries resulted from the negligence of defendant’s servants.

<p>This action was brought against the defendant, as a stockholder of the Peekskill Enamelled Iron Company, by one of its creditors, under the 10th section of the Manufacturing Corporation Act, which is in the following words:</p> <p>§ 10. “All the stockholders of every company incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by said company shall have been paid in, and a certificate thereof shall have been made and recorded, as prescribed in the following section ; and the capital stock, so fixed and limited, shall all be paid in, one half thereof within one year, and the other half thereof within two years from the incorporation of said company, or such corporation shall be dissolved.”</p> <p>Upon the trial, all the facts necessary to establish the liability of the defendant, as a stockholder, to the plaintiff, as well as the further fact that when the indebtedness was contracted by the company and accrued, there were several judgment creditors of the company besides the plaintiff. The plaintiff had judgment, and the case came before the general term on the single point presented by the defendant’s counsel, that all of the judgment creditors should have been joined in the action, and that a suit of this character cannot be maintained by one only, of several creditors.</p>

The action was to recover for personal injuries received by the plaintiff, by the alleged negligence of the defendants’ servants. The action was tried before Mr. Justice Spehcer and a jury. The defendants moved to dismiss the complaint, on the grounds: first, of the plaintiff’s negligence; and, second, of no proof of negligence on the defendants’ part. The motion was denied, and the defendants excepted.

The action is brought on an instrument of which the following is a copy : “Hew York, July 20, 1869. “ If General Tochman obtains for me a loan of $50,000 on the property located on Tenth-avenue, on terms suitable to me, I promise to pay him four per cent, on the loan in a check payable out of the same, for the purpose of his promoting emigration to Virginia. “ W. P. Brown.” The General Tochman mentioned in the instrument is the plaintiff, and the party signing it the…

The plaintiff shipped from the port of ¡New York to St. Thomas five bales and two cases of merchandise by the steamship North America, belonging to the defendants.

The plaintiff brings this action to recover sixty-nine dollars, an alleged balance of a deposit of one hundred dollars, made with the defendants. The defendants admit the deposit having been made, but allege that it was made by plaintiff, and accepted by defendants, subject to the conditions expressed in the charter and by-laws of defendants, of which plaintiff had knowledge.

The action was to recover a payment made upon a contract of purchase of real estate, agreed to be sold and conveyed by the defendant to the plaintiff. The complaint alleged the making of the contract, the payment of the money, and that the defendant had riot delivered or offered to deliver a deed of the premises, although often requested by the plaintiff to do so. The answer denied every allegation except, the making the contract and payment of the money.

In October 1863, one George B. Waldron made application to the defendants for an assurance on his life for the sum of fifteen thousand dollars.

The action was to recover the contract price of seventy bales of cotton, weighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants.

<p>Appeal from an order at special term, setting aside a verdict and awarding a new trial, upon a case and exceptions.</p>

of a referee, and from an order of the special term denying plaintiff’s motion to set aside the referee’s report upon the alleged grounds: 1. That the report was procured by improper means; 2. That it was different from what the referee had told plaintiff’s counsel it would be ; and, 3. That the referee having changed his opinion in a manner that was improper, renders the report invalid. The facts sufficiently appear in the opinion of the court.

Exceptions ordered to be heard at general term. In January, 1868, the firm of Banta & Brinkerhoff made an agreement with the defendant whereby they were to furnish him two lots of circus figures, one lot for four hundred and seventy-five dollars, to be finished in .thirty days, and the other for six hundred and twenty-five dollars, to be finished in sixty days. Banta & Brinkerhoff employed a Mr. Hamilton to make the figures.

<p>Appeal from an order denying a motion to vacate an order of arrest.</p>

<p>An appeal lies from an order denying a motion to appoint a receiver in proceedings supplemental to an execution, and is subject to review at general term under the decision of the court of appeals in the Matter of Duff (41 How. Pr. 350).</p> <p>The exercise of a sound discretion by the judge in refusing to appoint a receiver may be reviewed by the general term.</p>

The action was brought against the defendants, hnsband and wife, to recover upon the following promissory note : $1000. New Torlc, Novbr. 17th, 1870. Thirty days after date we promise to pay to the order of Mr. Henry Frecking the sum of One Thousand Dollars, at 401 Fifth Street, 1ST. Y. city, for value received. U. S. Revenue Stamp BOc. cancelled. A. Holland. B. Holland. Due Decbr. 20th, 1870. The defendants answered separately.

Motion to dismiss an appeal for want of prosecution. i . The judgment was entered and roll filed and appeal taken therefrom by the defendant in J une, 1870. In November, 1S71, the respondent on motion at special term obtained an order declaring the case on appeal abandoned, and he now moves upon the order and upon the judgment roll to dismiss the appeal.

This action was brought to charge the defendant as a stockholder of the New York and Galena Lead Mining Company, for a debt due to the plaintiff from the company, under section 18 of the act relating to manufacturing and mining companies, passed in 1848, and subsequently amended.

This action was brought by the plaintiff, a judgment creditor of the New York and Galena Lead Mining Company, a corporation organized under the act of 1848, to charge the defendant, as a trustee of said company, with the payment of the debt, upon the ground that no annual report had been filed as required by law.

This suit was brought to obtain a perpetual injunction by judgment restraining defendant from continuing to publish the following circular: Ebbrhard Faber, Pres’t. Levi L. Tower, / ,,g Jos. Reckendoreer, Treas. George Merritt, j ^ THE RUBBER TIP PENCIL COMPANY. Incorporated July 20, 1869, under the laws of the State of New York. Capital $378,000. Act of Legislature, February 17, 1848, and Supplementary Acts.

Bill of exceptions heard in the first instance at the general term. The exceptions and the facts of the case appear fully in the opinions of the judges.

This is an appeal from an order vacating an order of arrest and exonerating the bail. The complaint (which was served after the order of arrest was granted) and the answer thereto were as follows: Y. Y. Superior Court. William E. Hoy, Survivor of George D. Fowle and Hugh D. Bice, composing the firm of Fowle & Co., Plaintiff, against Blanton Duncan, Defendant. ► Complaint.