Volume 1 — New York City Court Reports

The plaintiffs, bankers, doing business under the firm name oí Lassing, Wies & Co:, loaned to one Kraus, the sum of §1,000, upon his note for that amount, indorsed by the defendant, Charles Sultzer. When the note became due, Sultzer was in Europe, and it was protested for non-payment.

The plaintiffs sued the defendant to recover $235.50, a balance claimed to be due upon account stated.

<p>Where a conveyance is made to husband and wife, they do not take as joint tenants, nor as tenants in common. Botli are seized of the entirety, and the whole goes to the survivor, discharged of the other’s debts; and the statutes relating to married women have not changed this common law rule. So held, in an action where the sufficiency of a complaint in an action for deceit in the sale of lands, was questioned on this account.</p>

<p>The lien of a mechanic for work done upon a chattel in his possession, being given by law, takes precedence over a chattel mortgage thereon previously filed.</p>

<p>A person becoming a member of a benevolent society, and subscribing to its constitution and by-laws, becomes bound by their provisions.</p> <p>A provision thereof allowing the society reasonable powers to discipline, try, and expel members attempting to impose on it, sustained in a case where the party" accused appeared before the society, and submitted to its jurisdiction by taking part in the trial.</p> <p>The sufficiency of the evidence and propriety of the expulsion cannot be considered in a collateral matter.</p>

The plaintiff, upon the death of her husband, who was janitor, became the janitress of Public School No. 18, situated in Fifty-first street, between Fourth and Lexington avenues, in the city of New York. The defendant was one of the clerks of the board of education of said city.

<p>Extent of the Set-off allowed by Section 112 of the Code.—S. S. and J. A. S. had a claim against the defendant, which they assigned to the plaintiff, on September 18, 1875.</p> <p>On October 1, 1875, the defendant, without notice of such assignment to the plaintiff, purchased a judgment against the plaintiff’s assignors, which they claimed to set-off against the demand assigned to the plaintiff. Held, that such set-off was not allowable.</p>

<p>An agreement by a plaintiff’s attorney, made with a surety of the defendant in an action, to discontinue it on payment of $1,000, is valid, provided the client assents thereto. It is an original and not a collateral undertaking.</p>

<p>The foreclosure of a second chattel mortgage, made after the first fell due, operates as a conversion of the mortgaged property as to the holder of the first chattel mortgage.</p>

<p>A promissory note given to an innkeper for liquors and cigars-sold on credit to the maker, who was not a lodger in the house, is void.</p>

<p>Liability of Common Carrier.—Act of God defined.—The steamer “ Am6rique,” while upon the high seas on a voyage from New York to Havre, encountered a violent gale, lasting forty-eight hours, during which the vessel sprang a leak in her engine compartment, which could not be overcome by the pumps, and which increased to such an extent, that all the fires in the furnace were extinguished by the rising water, and the engine came to a stand-still. At about 5 p. ir. of April 4, the captain finding that the leak was still making headway, that the engine compartment had many feet of water in it, that the fires in the furnace had been for some time extinguished, that the pumps could not be worked, and being convinced that the ship could not float much longer, took advantage of the presence of several vessels which had answered his signals of distress, transferred his passengers and crew to said vessels, and at about 8 p. m. abandoned the “ Am6rique,after first having held a consultation on the subject with all his officers, who concurred with 'him in the necessity of such a course. The 11 Amérique, ” though disabled, did not sink, and was found upon the ocean by two English steamers, and was towed by them into Plymouth, England. The plaintiff, who was a first cabin passenger upon the vessel, brought action to recover the value of his baggage and apparel, which were stolen from his state-room, after the vessel was abandoned. Held, that as the vessel did not go down, the defendants, notwithstanding the peculiar circumstances which led to the loss, were not relieved from their common law liability, as insurers against theft and robbery, and were bound to make good the plaintiff’s loss. That if the vessel, without negligence, had gone down, the act of God would have been a complete answer to the action ; but, as it did not go down, there was no defense.</p> <p>The reasons stated.</p>

The plaintiff sued to recover $2,000 damages for slander, uttered by the defendant in the room of a lodge, of which the plaintiff and defendant were members. The defendant charged the plaintiff with dishonesty. The words used were: “ You (pointing to the plaintiff) stole $40.” The answer was a general denial. Upon the conclusion of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that the words used were, under the circumstances, privileged.

<p>The defendant indorsed a note made by one Tieton, an infant, to the plaintiffs’ order. Held (1), that the plaintiffs might prove the circumstances under which the indorsement was made, for the purpose of showing that the defendant intended to become first indorser, and to make himself liable as such to the payees, the plaintiffs. That (3) the infancy of the maker was personal to the infant, and available as a defense only to him. That (3) an indorser, by becomlug such, asserts to the world, the competency of the maker to contract, and cannot gainsay it afterwards. That (4) an extension of time, granted to an infant, is valid as against his creditors, they being of age. How far the acceptance of new securities, payable in futuro, operates as an extension of time to pay the original debt—considered.</p>

The complaint in this action alleges that the defendants, Robert Simpson and Wilson Simpson were copartners in business as pawnbrokers, in the City of New York; that on the 11th of April, 1878, the said firm received certain personal property belonging to the plaintiff as security for a usuriousaoan made by the firm to the plaintiff of the sum of two hundred and fifty dollars for twelve months, with interest, at the rate of twenty-five per cent, per annum ; that at the end…

The note in suit, for $3,000, was made by the defendant and delivered to the Brittenstene Silver Mining Company for 1,000 shares of the capital stock of said corporation, of the par value of $10 a share. In consideration of this note the company agreed to issue and deliver said shares to the defendant. The company delivered 166 of these shares, but there was no proof showing that it ever issued or delivered to the defendant the remaining 834 shares.

<p>Conditional sales upon the installment plan, wherein the title is not to pass until the goods are fully paid for, upheld, and then- conditions enforced.</p> <p>'What amounts to a waiver of the conditions, and the distinction in law between waiver before and after breach, considered.</p>

This was an application for a mandamus to compel Mr. Justice McAdam to re-settle an order made by him denying an application made by the relator. The justice declined to re-settle the order, on the ground .that a re-argnment of the application had been ordered, and that the relator had availed himself of such re-arguIment. These facts were conceded.

The action was tried at the March, 1876, term, and a verdict directed for the plaintiffs. The motion for a new trial, which was made upon the minutes of the trial judge, was denied by him, for the reasons stated in the following opinion, filed at the time:

<p>Motion to set aside judgment. &c.</p>

<p>The act of 1863 (chap. 487), under which the plaintiff aud his associates (the Harbor Masters) were appointed, having been repealed, and the offices created by it abolished, the penalties imposed by the act are not recoverable even in pending actions.</p> <p>Under such circumstances the court may allow a discontinuance of the action, without costs.</p>

<p>Motion, to open default taken upon a motion to overrule a demurrer as frivolous.</p>

<p>Where railroad shares are transferred after interest has accrued thereon, the right to the accrued interest passes by the assignment. The stock is the principal and the interest merely the incident thereof, and follows the former.</p>

<p>The master is not liable to one servant for an injury occasioned by a co-servant, unless such co-servant was an incompetent person and the injury resulted from such incompetency or from defective machinery.</p>

<p>A judgment recovered in the marine court, like, one recovered in the other courts of record, is not outlawed until twenty years after the recovery thereof.</p>

<p>Judgments against joint debtors, when and how to be entered. The practice, stated.</p>

<p>The plaintiffs who are the editors and proprietors of a certain monthly paper, called “La America,” sue to recover $75 for inserting an advertisement therein, under the following contract:—</p> <p>“New York, June 1st, 1882.</p> <p>“I hereby subscribe for the term of twelve months for a space of i page in 6 La America ’ commencing with the June number, for which I will pay Three Hundred Dollars : payments to be made quarterly on receipt of first paper containing my advertisement.</p> <p>“ J. Bryaw.”</p> <p>The fifst quarterly installment became due October 1, 1882, and the action is to recover the amount thereof.</p> <p>The main defense is that the contract was obtained upon the representation that “La America” had a subscription circulation of over six thousand copies per month, and that the representation was false, and known to be untrue when it was made. Upon the trial, the defendant testified that the agent who procured the subscription from him, represented that the circulation exceeded six thousand, and that the defendant could have proof of that before he paid his bill. The agent who procured the subscription was called to rebut this evidence, instead of doing which, he admitted, that he told the defendant that the paper had a circulation of 6,000 to 8,000 per month. This corroborated the defendant. The defendant made propositions to settle the plaintiffs* claim, but these were conditional upon the plaintiffs making affidavit that the representation as to their circulation was true. The plaintiffs refused to make the affidavit, and said they would offer the proof in court. Upon the trial, the jury awarded the plaintiffs a verdict for the amount claimed, and the defendant appeals.</p>

<p>In an action by the widow of a deceased member to recover from the Lodge of Odd Fellows $50 to defray the funeral expenses of the deceased, and a stipend of $150 more for the benefit of herself and family, under the by-laws of the lodge, containing provisions allowing such pecuniary aid in case of the death of its members,—Held, that a by-law, operating as a forfeiture of the widow’s right to the benefits, because the member’s dues, although fully satisfied, were not paid at the precise time required by the lodge, was void, and no bar to the right of recovery.</p>

<p>The unreliableness of expert testimony, practically demonstrated. Motion for leave to discontinue without costs or upon terms, under certain circumstances, denied. ,</p>

The plaintiff, a member of the Segar-makers’ Protective Union, sued the defendant, a police officer, to recover $2,000 for an alleged assault and battery. It appeared that Congress, in March, 1883, reduced the tax on tobacco, so that it aggregated $3 on 1,000 cigars. The Protective Union thereupon determined that it would be fair for the manufacturers to profit by this reduction at the rate of $2 a thousand, leaving the other dollar a thousand for the men who did the work.

<p>Every affidavit should show on its face that it was taken within the jurisdiction of the officer who certifies it.</p> <p>The omission of the venue may sometimes be supplied by amendment.</p>

<p>The action was brought- to recover back $2,500 paid to the defendant, the proprietor of the Hotel Bellevue, at Bellevue, near Seabright, N. J., when the latter threatened to remove the plaintiff from the hotel in the summer of 1882. The plaintiff’s claim was, that while his wife was confined to her room, and dangerously ill'wit-h typhoid fever, which she had contracted at the defendant’s hotel, Captain Corey, the defendant, at about three o’clock in the morning made noisy preparations, declaring it his intention to remove her from the hotel to an out-house where the servants slept, unless $2,500 was paid by Mr. Levy. A check for the money was then given.</p> <p>Captain Corey, as a defense, set up a denial that the money was obtained by threats, and claimed that it was given upon an amicable arrangement made between the parties. The case excited considerable interest, and a number of the guests were examined, as well as the Board of Health of Monmouth county, and other officials of that place.</p>

<p>A policeman is a public officer, and when sued for an act done in his official capacity, he is entitled to double costs if he succeeds in his defense.</p>

<p>Costs, how taxed, and taxation, how reviewed upon appeal. The practice, stated. The phrase ;‘with costs to abide the event,” when used iu an order granting a new trial, explained and declared. What costs are recoverable thereunder. The authorities, reviewed.</p>

<p>Liability of owners of dogs for injuries done.—The owner of a domesticated animal is not liable for its conduct, in the absence of proof that the animal was known to the owner to be vicious or to have a propensity to bite mankind.</p> <p>The fact that the corporation ordinances in regard to permits and muzzles were not complied with does not make the owner liable.</p>

Plaintiff sought to hold the trustees of the Brooklyn bridge personally responsible for damages for injuries sustained by her on the occasion of the disaster upon the bridge on Decoration day. Defendants moved to dismiss the complaint, which was granted.

<p>A sleeping car company is neither an innkeeper, nor a common carrier, and, in the absence of negligence, incurs no liability for the loss of the property of its patrons.</p>

<p>An attorney who is sued and appears in proprio persona, and succeeds in the action, is entitled to the same costs as if he had appeared as attorney for another.</p>

<p>Interpleader.—Trust.—Effect of deposit by one person in trust for another, where the former retains the bank book.</p>

<p>Summary proceeding to dispossess a judgment debtor holding over after sale on execution. Validity of a moneyed judgment for mesne profits in an action of ejectment. The rule at common law and under the code. '</p>

<p>On the conclusion of the plaintiffs’ case the trial judge dismissed the complaint upon the ground that the contract set out in the pleadings was not a sale, but an agreement to sell certain “bat guano,” on its arrival at this port, on board of the brig “Arabellathat the contract was conditional upon the arrival of the guano, and that it terminated on the arrival of the vessel without the guano. This ruling was in accordance with the law laid down in Shields v. Pettie (4 N. Y. 122).</p> <p>The plaintiffs appeal.</p>

<p>Appeal from a judgment rendered on a trial without a jury.</p>

<p>Application for defendant’s discharge as an imprisoned debtor under the fourteen days act.”</p>

The plaintiff and his two assignors occupied different apartments in the tenement house known as No. 77 First avenue, in the city of New York. They weré monthly tenants, and the defendant was their landlord and the owner of the property.

<p>Unsafe building taken down by the department of buildings.</p> <p>Effect thereof upon tenant under covenant to keep in repair.</p>

<p>Liability of stockholders of manufacturing corporation; effect of judgment against corporation; pleading, numbering separate causes of action, &c.</p>

<p>Penalty for non-service of printed papers upon appeal. Exhibits used upon the trial, are constructively in the possession of the court, and may either be ordered on file, or their temporary custodian may be required to allow copies thereof to be taken.</p>

<p>Moneys, while in the hands of a receiver appointed by the court, are in custodia legis, and are not subject to levy under mesne or final process.</p>

<p>When a lease or an assignment thereof is under seal, no one not a. party can sue or be sued upon it, nor can a recovery against the occupant be sustained while such lease or assignment is outstanding in the name of another.</p>

<p>The defendant certified a check drawn upon it by one Goll, to the order of W. W. Coomes.</p> <p>The plaintiff claimed title to the check through Coomes’ indorsement, while Coomes, on the other hand, denied the transfer and claimed title, and notified the bank not to pay plaintiff.</p> <p>Held, to be a proper case for interpleader on application pf the bank.</p>

<p>If a manufacturing corporation created under the laws of New Jersey has no office or place of business in that State, and opens an office and transacts business in the city of New Tort, the incorporators are personally liable for all debts contracted in the corporate name. The charter in such a case does not fit the company, and the incorporators by going outside of it cannot screen themselves from personal responsibility.</p>

<p>Oases and amendments upon appeal are not legally settled under the rules of court until they have been approved and ordered on file by the trial judge; and this whether the parties have agreed upon a settlement or not.</p>

<p>Action upon bond of special guardian. Jurisdiction of the common pleas in regard to sale of infants’ estates. When leave to sue guardian’s official bond necessary, and when cause of action thereon complete.</p>

<p>The service of a summons outside of the territorial jurisdiction of the marine court is a nullity, but if the defendant appears generally in the action it will be deemed a voluntary appearance, and a subsequent plea to the jurisdiction after such appearance is untenable.</p>

<p>Where a party wall was erected under a paroi agreement between two adjoining owners, orie-half upon the land of each,</p> <p>Held, that the contract, although by paroi, having been executed, is not within the statute of frauds, and that the owner erecting the wall may recover one-half of its cost from the adjoining proprietor.</p>

<p>The rule deducible from the authorities is that taking from the debtor a note of a third person, for a pre-existing debt, is not payment, unless expressly agreed to be taken in payment, or unless such new note be paid.</p>

<p>The marine court has jurisdiction of actions upon undertakings given in actions pending in other courts, as well as upon those given in.</p>

<p>Duty of Carrier under C. 0. D. Contract.—Effect of taking Consignee’s Check.—Ratification by Shipper.—The consignee’s check is not payment, and the carrier is liable if the check is not paid. But if the consignor receives the check from the carrier without objection, he ratifies the unauthorized act of the carrier, who is in consequence relieved from liability.</p>

<p>Judgment non obstante veredicto can only be ordered in a case wherein the defendant has obtained the verdict of the jury.</p>

<p>A defendant arrested by an erroneous name is not necessarily entitled to have the order set aside for the misnomer. The reasons stated. Power to amend in such a case.</p>

<p>Appeal from judgment of fifth district court in favor of plaintiff, for $65 and costs.</p>

<p>The defendant served an offer to allow judgment to be taken against him, with costs and disbursements to the date of the offer. Held, that the plaintiff was not bound to accept such an offer, as he was entitled to the costs and disbursements for entering judgment on the offer. The offer should be unconditional.</p>

<p>Mrs. Iris C. Swigley let the furnished house, No. 41 West Forty-fifth street, to J. Alfred Jones, from August 1, 1878, till May 1, 1879, at $150 per month, with the further proviso that if Mrs. Swigley was absent from and did not receive board upon the premises she was to be entitled to the further sum of $25 per month. Mrs. Swigley availed herself of this provision, and was absent at Saratoga from August 9 to September 9, and upon her return she demanded the aforesaid $25. It was not paid, and she commenced proceedings to dispossess. The tenant’s counsel claimed that such proceedings were not maintainable against a furnished housé. Judge McAdam overruled this objection, holding that the contract was entire, and must be performed in its entirety ; that the lease called for a fixed rent, and that it could not be apportioned ; and that the fact that furniture was embraced in the lease of the realty did not defeat the summary remedy awarded by statute, as the furniture was a mere incident of the grant, and the landlord had judgment.</p>

<p>The true owner has a right to follow his property or its proceeds, into whatever form the same may have been converted, so long as the means of proving identity remain.</p>

<p>Where parties, stipulate upon a given event ■ to pay a specified sum, • the natural and plain import of the language is, that upon the happening of the contingency they will pay that' precise sum, not that it shall stand by way of penalty.</p>

The plaintiff, who was a commuter on the defendant’s railroad, started through the entrance of the depot at the northwest corner of Forty-second street and Park avenue, on January 21, 1873, and ran in a direct line to catch the 6:10 P. M. Harlem train, then nearly ready to leave.

The summons and complaint herein were served March 25, 1879, and on the 31st of the same month the defendants appeared, by Stanley, Brown & Clarke as their attorneys, and demurred to the sufficiency of the complaint.

The complaints herein, having been served upon the defendant, it appeared by its attorneys, and served a combined answer and demurrer thereto, which was returned to the attorneys who served the same, with the following reasons therefor indorsed thereon. (1.) Because improperly verified. (2.) As irregular, in joining in one plea the answer and demurrer. (3.) That it was served without authority.

<p>Where, by the terms of a composition deed, notes are unconditionally accepted in payment of the debt due, and there is no provision that in case of non-payment of the notes, the original debt is to be revived, such, debt is absolutely discharged, and the creditors’ only remedy is upon the notes received in payment.</p>

<p>Several claims already due under the same contract form one indivisible cause of action, which cannot be split up for the purpose of bringing a number of actions. The reason and efíect stated.</p>

The plaintiff, while passing along the sidewalk in front of the store of the defendant, No. 450 Pearl street, this city, on October 26, 1878, was knocked down by a large box used for packing looking-glasses, and sustained injuries for which he brought the present action to recover $2,000 damages. The evidenpe disclosed, without contradiction, that the box was thrown against the plaintiff by two boys who were playing upon the sidewalk at the time.

<p>Objections which might have been obviated upon the trial must be raised there, or they are waived'. They cannot be raised for the first time upon appeal.*</p> <p>Inability, through sickness, to fulfill a contract for personal services, excuses further performance, and the party may recover as upon a quantum meruit, for the services rendered up to the time he is disabled. This is upon the familiar principle that the performance of a condition is excused, when it is prevented by the law, or by the act of God.</p> <p>But where a party contracts to do a thing which is possible at the time the contract is made, he is not excused from the contract by a contingency thereafter, arriving, which deprives him of all the benefit contemplated by the contract, because it is his own fault that he did not expressly provide against such contingencies.</p> <p>-* See 1 A. B. 92; 3 Sand/. 399; 4 Id. 109; 4 E. D. Smith, 473; 3 Id. 310; 1 Silt. 61, 72, 531, 537.</p>

<p>Extract from the 9th annual 'report of the Society for the Prevention of Cruelty to Animals, page 23.</p>

In an action brought by one Crowley against the sheriff, Wm. C. Conner, to recover treble damages under the statute for exacting illegal fees, it appeared that the charges were paid to one assuming to act as deputy sheriff.

<p>The marine court has no power to reform a contract, and then allow a recovery upon the contract as reformed, although superior courts of record have such jurisdiction.</p> <p>A bill of sale may be void as to creditors, and good, as between the parties to it. A liquor license is not assignable, and profits from an unlicensed liquor trade are not recoverable.</p>

The plaintiff, a married woman, residing with her husband, brought action against the defendant to recover damages for the detention of a sewing-machine. The action came on for trial in the third district court, city of New York, on June 6, 1866, before Justice Bull (who was acting in place of Justice Smith, who was absent). The plaintiff testified on the trial that she bought the machine in January, 1862, and she received the money from her husband.

<p>A breach of -warranty does not justify the rescission of a sale. The appropriate remedy is to recoup or counterclaim the damages resulting from the breach. Fraud is the only ground upon which a contract can be rescinded.</p>

William B. Crosby applied to Mr. Justice MoAdam for a summons, under the statute, to dispossess a, tenant for non-payment of rent. The justice declined to entertain the proceeding, upon the following grounds: “The justices of the marine court find themselves so crowded with the ordinary business of the court, that they decline to step aside from it and entertain summary proceedings, which they believe appropriately belong to the district courts.

<p>Where the plaintiff, in an action of replevin, recovers six cents damages, and the value of the property recovered was assessed at $30: Neld (following several cases), that.the plaintiff was, under the statute as to costs, entitled to recover the same amount of costs as damages.</p>

<p>In an action of trespass guare clausum fregit, the defendant is entitled to the taxable costs, unless the plaintiff recovers a verdict of $50 or more.</p> <p>A justice of the peace has jurisdiction of such an action.</p> <p>The amount finally recovered, and not the amount demanded in the complaint, determines the question whether or not the action is one within the moneyed jurisdiction of the justices’ court.</p>

In July, 1878, the plaintiff was the proprietor of what is denominated an inn, at No. 50 First street, in the city of' New York, which was conducted by him under a license issued by. the commissioners of excise, authorizing the sale by him at said place of lager beer; the defendant Mayforth, an officer attached to the 17th precinct police, on Monday morning, the 22d day of July, 1878, at fifteen minutes of one, A. M., discovered that the door of plaintiff’s place of business…

<p>The plaintiff, who is the lessee of premises known as numbers 116 and 118 Greene street, in the city of New York, brought this action against the defendant, for illegally, maliciously and with force breaking into and entering upon said premises, to the plaintiff’s alleged damage, $2,000. The defendant, by way of justification, pleads that what he did was lawfully done in virtue of his office as one of the captains of the municipal police, in recapturing an escaped prisoner, and that the damage, which was trifling, was done in the necessary and proper discharge of his duty. The justice who presided at the trial, in effect, charged the jury that the arrest by the captain was illegal, and that the plaintiff was entitled to recover whatever damages were done to his premises. The jury, acting upon this instruction, found for the plaintiff, and the defendant, feeling aggrieved, appeals.</p>

<p>The plaintiff, as tenant, hired a tenement from the defendant, for one month from May 1, 1874, and paid the month’s rent in advance. The plaintiff did not receive possession on the first day of the term, because of the wrongful overbolding of the tenant in possession, whose term expired on that day. The plaintiff, in consequence, sued to recover back the rent paid. Neld, that as the plaintiff was prevented from taking possession by the wrongful act of a third person, and not by any act of the defendant, he was not liable for the wrong.</p>

<p>The bankruptcy of the plaintiff, after suit brought, does not necessarily require that the action he continued in the name of the assignee.</p>

Trial by the court without a jury. The defendants sent their engineer to the plaintiffs to ascertain what a particular size of leather belting would cost. The engineer saw Mr. Dodge, the plaintiffs’ salesman, who looked at the price list, and then put upon a blank card the figures 242 as the' rate per foot the plaintiffs were charging for the size inquired about.

<p>Motion for new trial on judge’s minutes.</p> <p>The plaintiff sued the defendants jointly for false .imprisonment, claiming that although she was arrested at the instigation of the wife, in the absence of her husband, that the latter is liable for the personal torts of the wife, and that he was therefore not only a proper but necessary party to the action (citing Rowe «. Smith, 45 JST. Y. 233 ; 56 Id. 43 ; 27 How. Pr. 374). The complaint was dismissed at the trial as to the husband, upon the ground that the wife caused the plaintiffs arrest, upon suspicion of feloniously taking two canary birds, the separate property of the wife, and that for all acts, tortious or otherwise, committed by the wife in respect to her separate property, the husband is not liable. The plaintiff now moves for a new trial, upon the ground that this direction was erroneous.</p>

<p>The jurisdiction of local courts in actions between foreigners, especially subjects of the same country, defined.</p>

<p>Where the justice who tried a cause dies before settling the case and amendments on appeal, the settlement may be made by any other judge of the court.</p>

<p>The proposed case and amendments upon appeal must be settled by the judge who tried the cause, notwithstanding the fact that after the trial and before the required settlement, the judge’s term of office had expired.</p>

<p>The general term of the court of common pleas have rendered a decision reversing a judgment obtained before Mr. Justice Callahar, of the first district court, in the case of the Beady Boofing Com-of New York against one Chamberlin. The action was brought to recover the value of wine which the plaintiff claimed to have sold to the defendant. The defense was that he received the wine from one Bidgway, in payment of rent of rooms which were leased to Bidgway in defendant’s house, supposing that Bidgway owned the wine, as he gave defendant to understand, and that defendant had settled with Bidgway on that basis and given him a receipt in full. It appears that Bidgway was all the time in the employ of the company. A further defense was that plaintiff, whose business was to put roofs on houses, had no license to sell liquors under the excise law of the State of New York, and had not paid the internal revenue tax to the United States, as the law requires ; and also, that the justice had lost jurisdiction of the case at the time of his decision.</p>

<p>An attachment issued against one of the members of a copartnership firm cannot be levied upon debts due to the firm.</p> <p>Only tangible property of the firm can be attached, such as can be sold upon execution.</p>

The defendant employed the plaintiff, a real-estate broker, to negotiate for the purchase of a house and lot in Thirty-eighth street, in the city of New York. The price of the house was fixed at $34,500. It was subject to a mortgage of $12,500, and the owner’s equity, i. e., $22,000, was to be paid for in diamonds of that value. These terms were assented to by Mr. Lawrence, the owner of the house, as well as by the defendant.

The plaintiff sued the defendant Risley as the maker and the defendant Copeland as the indorser of a promissory note in these words: [$150] New York, February 1, 1879. Three months after date I, as assignee of John S. Prouty, promise to pay to the order of H. P. Copeland one hundred and fifty dollars, at my office, No. 128 Broadway ; value received. John E. Risley, As assignee of John S. Prouty in bankruptcy. Indorsed, H. P. Copeland.

Action for false imprisonment in causing the plaintiff’s arrest by a police officer without a magistrate’s warrant-. The defendant justified the arrest by a plea setting forth ownership in the house No. 17 Beach street, in the city of New York, and possession under color of title and claim of ownership of the back yard belonging thereto.

The action was commenced March 13, and issue was joined March 20, 1876. The case was put on the calendar on the 27th of the same month. The discharge in bankruptcy was granted March 15, 1877.

<p>The drawer of a check having funds at the bank must have notice of the presentment and non-payment before he can be made liable by suit.</p> <p>The complaint must aver either notice to the drawer or a want of funds, otherwise it will be demurrable.</p> <p>Section 534 of the Code of Civil Procedure construed.</p>

<p>Removal to United States Court under the local prejudice act. The petition need not state the particular reasons for the local prejudice. The right to the removal becomes perfect on filing the petition, and the plaintiff cannot defeat it by reducing the amount demanded to less than $500.</p>

<p>Pawnbrokers and other pawnees are not responsible for goods stolen without their fault or neglect.</p>

The plaintiff, who is president of the Hoboken Council No. 99 of the Royal Arcanum, an association of Hoboken, Hudson county, New Jersey, consisting of seven or more persons, sues the defendant in trover for the conversion of a portion of its property.

<p>Construction of sections 1,418 and 1,414 of the Code of Civil Procedure. The provisions for the release of a levy on the interest of a defendant in a partnership do uot apply to a case where the property is levied upon as the sole individual property of such defendant.</p>

The defendant obtained an order requiring the plaintiff, who resides at Flushing, New York, to appear at that place, before a referee named in the order, and submit to an examination as a witness before trial. The plaintiff moved to set aside the order as unauthorized, and from the order of the special term judge, •denying said application, the plaintiff appeals.

<p>An order for service by publication cannot be granted in this court except in cases where property is attached.</p>

The plaintiff, a speculator in stocks, sued the defendants, his brokers, to recover $2,000 damages, arising out of an unauthorized sale by them on August 14, 1879, of one hundred shares of Wabash, and a like number of shares of the Lake Shore Railroad Company.

The facts are substantially these: Neil McCallum & Co. had a claim against C. H. Cutler for $68.08, which they assigned to the plaintiff orí June 14, 1879. On June 16, 1879 (two days after the assignment of this particular claim to the plaintiff), McCallum & Co., the assignors, made a general assignment for the benefit of creditors to one Silver, who was subsequently removed, and the defendant, Charles H. Truax, substituted in his place.

<p>Landlord and Tenant.—Implied agreement as to terms of rehiring.</p>

<p>Trial by the court without a jury.</p> <p>On the 5th day of August, 1879, the plaintiffs in the above actions went to the swimming baths managed by the defendant at Seventh avenue and Fifty-ninth street, in the city of Hew York. They paid a subscription of five dollars for learning to swim, and an additional fee of twenty-five cents every time they enjoyed the comforts of the bath. In accordance with the rules of the establishment, they delivered their valuables to the clerk, who required them to write their names upon a slip of paper, and this, with the property, was deposited in a small box, which was locked and the key given to the plaintiffs. Augustus Levy deposited a gold watch worth $150,' and a pocketbook containing $8 ; Julius Levy (the uncle of Augustus) deposited a gold watch, chain, charms and locketj worth $210, and a pocket-book containing $10. Upon their return from the bath they handed the key to the clerk and made a request for the property deposited. The clerk, on turning to the box, said their property must have been taken by some other person. The various boxes were then searched, but the missing property was not found. How or by whose agency it disappeared is not disclosed. ' The plaintiffs bring these actions to recover the value thereof, and the defendant contends that he was only a gratuitous bailee, and as such liable only for ordinary care, and this he claims to have exercised.</p>

<p>Where two actions are tried under a stipulation that one is to abide the event of the other, the successful party is entitled to a trial fee in both.</p>

<p>The plaintiffs, who were the agents and ship’s .husbands of the bark Rockett, sued to recover for advances made on account of the bark at the request of the defendant. The defendant, among other defenses, contended that because one of the plaintiffs was the owner of half of the vessel and the defendant the owner of the other half, they were in effect partners, and that an action at law was not maintainable, and that the appropriate remedy was by bill in equity for an accounting. Upon this ground the defendant moved to dismiss the plaintiff’s complaint</p>

<p>Bailment. Liability of bailee to arrest. Effect of form of action. The rule stated.</p>

<p>Appeal by Fannie S. Bevans, plaintiff in the first of the above entitled actions, from an order made at special term, directing certain moneys in the hands of Henry T. Coates, a third person indebted to the j udgment debtors, to be applied on the judgment held by Henry W. Farley et al., the plaintiffs in the second of said actions.</p>

<p>Motion for leave to discontinue without costs.</p>

<p>Motion for a new trial upon the minutes.</p>

This was an appeal from an order at special term, directing that the judgment herein be marked satisfied of record, and the defendant’s sureties released from all liability. The facts were, plaintiffs had a judgment against defendant, against whom an order of arrest had been granted in the action. Defendant had been a resident of New York city. Pending the action he removed to Brooklyn. Execution was issued against his property to the sheriff of New York county.

<p>Appeal from judgment entered on verdict of a jury in favor of the plaintiff.</p>

<p>The proof required in an action against the indorser of a promissory note made payable to the order of the plaintiffs, and wherein the plaintiffs are presumptively first indorsers. The rule and the exceptions to it,—stated.</p>

<p>Breach of executory contract to print a newspaper from materials to be furnished by defendants, and the damages recoverable thereon.</p> <p>Trial by the court, without a jury.</p>

<p>A bank with whom collaterals are deposited has a right to assume in respect thereto that the parties to a negotiable instrument arc liable in the form in which they contract, unless they have notice to the contrary.</p>

<p>The production of a negotiable note on the trial' creates a presumption that the plaintiff is a bona fide holder thereof, and the allegation that the note came lawfully into his possession carries with it the presumption of ownership.</p>

<p>Motion to vacate attachment..</p>

<p>The 1 vv as to conditional sales defined. The general rule is that when a chattel is delivered to one who has bargained for the purchase thereof, and agreed to pay therefor at a future day, under an express contract that no title is to vest in him until payment, the property of the vendor is not divested, and the purchaser takes, at most, only a right by implication to the use of the chattel, until default in the stipulated payment. But the principle of conditional sales will not uphold such sale when the' property is delivered to the buyer for consumption or for sale or to be dealt with in any way inconsistent with the ownership of the seller, or in a manner which would necessarily destroy his right of property.</p>

This was an action against the sheriff for a false return. Plaintiff proved a judgment for $162 in March, 1880, against one Schilberg, assignment to himself, execution to defendant, possession by Schilberg of a drug store, the property in which was worth about $1,000, the use of which for a year $300.

This action was commenced on December 13,1876. The complaint was the ordinary one for goods sold and delivered. The plaintiffs, upon affidavits alleging that the sale was procured by means of false representations, procured an order of arrest against the defendant. On affidavits denying the fraud, the defendant moved to vacate the order of arrest, which motion was denied on the merits.

<p>Sufficiency of complaint against indorsers on notes under section 534 of the Code of Civil Procedure.—.Demurrer.—Statute of 1833 (ch. 381) as to the use by an individual of a copartnership name.</p>

<p>Theatrical contract.—Meaning of the term “for a season of twelve weeks or more, if mutually agreeable.”</p>

<p>Where the owner of a building contracts with a competent person to construct a sewer, at a stipulated price for the whole work, he is not liable to third persons for any injury resulting from the negligent manner in which the sewer may have been left at night by the workmen employed by the contractor.</p>

The plaintiff declared upon the following instrument as a promissory note, to wit: “$S4.

The complaint charges that on May 26, 3877, the plaintiff’s assignors recovered a judgment in this court against one -Daniel McGuire; that thereafter and in January, 1880, said McGuire made a motion to have the judgment satisfied of record ; that in said motion the defendants John Callahan and Thomas McGuire, who were sureties on a limit bond in said action, joined with the said Daniel; that their motion was granted, whereupon the plaintiff’s assignors (the jndgment…

<p>Master and Servant.—Negligence.—Fall of Scaffold.—The employer is not an insurer of the safely of his servants, and is not liable to an action unless some specific act of negligence is proved against him.</p>

<p>Where one of the members of a firm of attorneys signed a paper in which they said “they would charge no costs or counsel fees” in a certain case ; no consideration was expressed. Held, that this did not release the defendant from his liability to pay for the services rendered in said case up to the time of said writing.</p>

Trial by the court without a jury. The record shows that Jacob A. Mittnacht brought suit in the second judicial district court, against John B. Gschwend, to recover the possession of certain personal property valued at $250. After issue joined and before trial, the defendant in that action, John B. Gschwend, made application to remove said action to the court of common pleas for trial, under the act of April 13, 1857, relating to the district courts.

The plaintiff sued to recover $1,200 from0 the defendant, under a policy of insurance .issued by it, whereby Catharine Coan was insured against loss or damage by fire to the amount of $2,200.

<p>A return by a city marshal as to the time and manner of service of a precept in summary proceedings is conclusive against attack in collateral proceedings. It gives the magistrate jurisdiction, and protects him and the party at whose instance the proceedings were instituted.</p>

<p>A claim for interest on a mortgage cannot be recovered unless it was due at the time of performing the contract under which it was claimed. It cannot be apportioned at law. Where an oval contract of exchange of property is made, and an unpaid difference is due, the party having the difference in his favor may sue for the unpaid purchase-money, but his action must be upon the contract as executed, and not upon the oral contract, which, being void, cannot bo the subject of such an action.</p>

<p>The receiver herein was first appointed in supplementary proceedings instituted in the marine court. Subsequently another judgment creditor filed a bill in the supreme court to set aside a conveyance, made by the judgment debtor prior to the appointment of the receiver. Upon motion made in the supreme court, the same receiver was appointed in that action, and collected rents, &c., pending the litigation. The judgment creditor succeeded in the supreme court action, but in the meantime a mortgage had been foreclosed and the property sold, so that the receiver was only able to collect the rents aforesaid. The receiver filed his accounts, and the question was presented whether these rents were to go on the judgment in the judgment creditor’s action in the supreme court, or upon the judgment in the marine court on which the receiver was first appointed.</p>

<p>The commissioners of charities and correction, when prosectfting as , overseers of the poor, must sue in their individual names, with their official designation added.</p>

<p>A process server lias no roving commission to strike out the names of defendants from process nor to insert others in their stead.</p>

In the much-lifigated suit brought in the marine court by Henry Brewster & Co. against Rufus Hatch, to recover a portion of the price of a carriage and for repairs, which has been twice tried and twice heard on appeal in the marine court, and twice in the court of common pleas, Judge Me Ad am gave the following opinion upon a motion by defendant for leave to amend his answer.

<p>The president of an unincorporated association consisting of more than seven members may maintain an action on behalf of the association, . against its treasurer, for moneys of the association converted by him to his own use, and an order of arrest may issue in such action.</p>

The plaintiff sued the defendant in the New York marine court, as the indorser of two promissory notes of $1,000 each, made by one Kelly. The notes in question were given upon a settlement of two actions.

Action upon an under faking executed by the defendants as sureties, wherein ifc is recited that the plaintiff in the action has instituted proceedings against James Marshall and William C. Craig, to recover the possession of certain personal property specified in an affidavit made by the plaintiff, pursuant to the second chapter of the seventh title of the second part of the Code of Procedure.

<p>Interpleader between assignee and judgment creditors of assignor. —One D., on October 22, 1878, assigned a claim to the plaintiff, who brought action thereon against the defendant January 8, 1879. The defendant, on an affidavit showing that the same money was claimed by F. & M., under an order made in supplementary proceedings, commenced on a judgment recovered by them against D. (the plaintiff’s assignor) applied for an order discharging the defendant from the action and substituting F. & M., the judgment creditors, as defendants in her place. The supplementary proceedings were commenced November 13, 1878, against the defendant herein, as a third person having money in her possession belonging to the judgment debtor, and culminated in an order made therein January 26, 1879, ordering her to payr the claim herein over to them. Held (reversing the order of the special term), that interpleader could not be ordered under such circumstances; that an action cannot be brought upon such an order; and that the judgment creditors had therefore no right of action against the defendant for the recovery of said fund; that if the judgment creditors desired to bring an action, they should have procured the appointment of a receiver, and have made their claim or brought the action in his name. The reasons stated.</p>

<p>Action to recover statutory penalty of $50.</p>

<p>Motion for new trial upon the minutes.</p>

<p>Under the statutes of Hew York, marriage neither pays, transfers nor extinguishes a debt owing by the husband to the wife, and the wife may sue her husband in a common law action to recover back the loan. An attachment in favor of the wife against the property of the husband in such an action sustained,</p>

<p>Actions on deeds and other specialties, inter paHes, must be brought by, and in the name of a person who is a party to the instrument, and a third person, a stranger to the deed, cannot sue thereon. In the case of a simple contract, a promise made for the benefit of a third person is valid, and may be enforced by the promisee, if he has an interest in the subject matter of the promise.</p>

<p>An unconditional promise in writing to accept a draft made before it is drawn is deemed an acceptance under the statute (1 Edm. R. S. 733, § 8) in favor of a person receiving the bill for a valuable consideration on the faith of such promise.</p>

<p>Where a defendant is sued for brokerage, and pays the amount of the commissions into court, and interpleads two rival claimants fcr the fund, the question to be determined between such claimants is which of the two is entitled to the fund. Whether the agreement under which the plaintiff beeame entitled to the commissions be open to the objection of illegality or inmorality, is one which the party paying the fund into court alono can raise, because, if such a transaction injures any one, it is the person paying the money; and where such person does not complain, but waives such defense by admitting his liability, and paying the amount of the claim into court to be contested for by the parties to the record, and the question of illegality as between the plaintiff and his employer may be considered out of the case.</p>

<p>Master and Servant.—Discharge of Employee.^If a servant, without the consent of his master, engage in any employment or business, for himself or another, which may tend to injure his master’s trade ■ or business, he may lawfully be discharged before the expiration of the agreed term of service. Ho man shall be allowed to have an interest against his duty. ‘</p>

<p>Master and Servant. Duty of Employee.'—The plaintiff was employed to sing a base or baritone part in the choir of the defendant’s church. The defendants directed him to take a subordinate part, which he refused to do. He was thereupon discharged before the expiration of the term of service. Held, that the discharge was illegal.</p>

<p>The defendant, upon receiving his appointment as the attorney of a telegraph company, agreed that if the plaintiff, who is also an attorney, would assist him in the litigations pending against the company, he would by way of recompense divide the salary of the office. Held, that as between the parties the agreement was valid, and that it neither offends public policy nor good morals.</p>

<p>The defendant executed an instrument, whereby he agreed that if the plaintiff withdrew from a contemplated purchase of goods, waived his opportunity and did not buy them, that he, the defendant, would in case he bought them, pay the plaintiff $75. Held, that it was a valid contract, and that the rule making void agreements not to compete at a public sale had no application.</p>

This is a motion to make William TL Mundy personally liable for the costs of the action upon the ground that E. M. Killings, the relator on whose information the action was commenced, was a non-resident of the county.

<p>Bankruptcy.—Perpetual stay, &e.—The defendant’s answer was interposed May 3, 1878. On August 31, 1878, the defendant filed his petition in bankruptcy, and was on the same day adjudged a bankrupt. On July 18, 1879, judgment was recovered herein. Two months previously, to wit, on May 9, 1879, the defendant procured his discharge from all debts and claims against his estate which existed on said 31st day of August, 1878. The claim in suit existed on that day, and was provable against the estate. Held, that the debt was extinguished.' That the defendant was not obliged to plead his discharge by supplemental plea, and had the right to allow the suit to go to judgment, and seek relief by an application for a perpetual stay.</p> <p>The costs allowed upon an order affirming the judgment held not to be discharged. The reasons stated.</p>

<p>Action on note given in settlement of an action in the supreme court, which the plaintiff promised to discontinue but did not. The defendant by supplemental plea to the supreme court action, pleaded the giving of the note sued upon as payment. Held, that he thereby affirmed the binding force of the settlement, and had no defense to the action on the note.</p>

<p>Trial by the court without a jury.</p>

<p>Motion by the corporation counsel to set aside judgment.</p>

The plaintiff entered into the employ of the defendant, a book-maker on horse races, and accompanied him to New Orleans, Nashville, Louisville, Baltimore and other places, under an arrangement by which he was to receive $5 per day, for traveling and other expenses, and at the end of the season $500 for his services.

<p>Pleadings.—In an action of trover for the conversion of personal property, an allegation in the complaint “that the defendant wrongfully took, 'carried away and converted to his own use, the property of the plaintiff” is suffipiently broad to admit evidence showing that the possession of the goods was obtained by fraud.</p>

<p>Pauper cases.—The statute in reference to permitting persons to sue in forma pauperis should be strictly construed. The reasons stated.</p>

<p>A guardian cannot sue in forma pauperis. The reasons stated.</p>

<p>The defendants, who are dentists in the city oHSTew York, were sued for damages said to have been caused by the negligent manner in which they extracted a tooth, in consequence of which alleged negligence part of the tooth went down the plaintiff’s throat and lodged in the bronchial tubes, which convey air from the month to the lungs. The plaintiff suffered considerable pain, had frequent attacks of coughing, followed by vomiting, and in about four weeks thereafter, during one of these attacks, the tooth was thrown up, and relief followed in due course. While the tooth was being extracted the plaintiff was under the influence of an anaesthetic called laughing-gas. The jury rendered a verdict in favor of the plaintiff for the sum of $500, and from the judgment.entered on this verdict the defendants appeal.</p>

<p>Motion for a new trial upon the minutes, the jury having found a verdict against both defendants.</p>

<p>Trial by the court without a;] ury.</p>

<p>Trial by the court without a jury.</p>

<p>An action will lie for the conversion of trade dollars. What amounts to. such a conversion.</p>

<p>C. employed the plaixtiff to do certain work, and the plaintiff, after doing less than quarter of the work contracted to be done, abandoned it, being dissatisfied with O.’s financial condition. The defendant, who owned the property, thereupon told the plaintiff to go on and complete the contract, and that he "would pay the bill. The plaintiff thereafter completed the work. Held, that the defendant was liable for the bill.</p>

The defendant moves under section 1778 of the Code of Civil Procedure, for an order extending the time to answer.

<p>Upon the trial, the jury rendered a verdict in favor of A. Addison Teets, one of the defendants, and against Philip Teets, the other defendant, for §110 damages. Philip Teets moves upon the minutes to set aside the verdict rendered against him, and this is the motion to be decided.</p>

<p>Motion for new trial on the ground that the verdict is against the weight of evidence.—The fact that the verdict arrived at by the jury differs from that which the trial judge would have directed if he liad the power to do so, does not entitle the defeated party to a new trial.</p>

<p>Attachment of moneys in hank.—Motion to compel hank to pay over.—A person in whose hands moneys have been.attached cannot be compelled, upon a mere motion, to pay over. The remedy is by action or by supplementary proceedings.</p>

<p>Parties and witnesses attending in good faith any legal tribunal are privileged from arrest in going to and returning therefrom.</p> <p>The immunity from service of process without arrest is limited to witnesses, and does not include parties.*</p>

<p>Supplementary proceedings.—Power to limit examination.—</p> <p>Where it appeared that the judgment debtors had made a general* assignment for the benefit of creditors, and that the judgment creditors had filed a bill in the superior court to set the assignment aside,—Held, that the examination of the debtors on supplementary proceedings in the marine court should be limited to property acquired since the general assignment.</p>

<p>Consolidation of actions.—The marine court, on a motion to consolidate, may remove to itself an action pending in one of the judicial district courts.</p>

<p>Landlord and Tenant.—Covenant to repair.—A covenant to repair extends to all repairs, irrespective of the cause of the defect. Where there is an express covenant to “keep in repair” there can be no independent collateral oral undertaking on the part of the landlord by which he and not the tenant is to perforin this covenant.</p>

<p>Special Partnership.—False Certificate as to Capital.—Bankruptcy of the General Partners, and its effect, &c.—A check given to the general partners, and not passed to the credit of the firm until several days after the filing of the certificate and affidavit required by statute, is not such a payment of capital by the special partner as the statute contemplates. The false certificate does not make the parties general partners, though liable as such to creditors. The liability is in the nature of a statutory penalty, which is enforceable only by action.</p>

<p>Motion for new trial on newly-discovered evidence.—Where the evidence newly discovered is of that problematical character known as expert testimony the motion for a new trial should be denied.</p>

<p>A bond of indemnity given to the sheriff applies to a levy made before the bond was given; and the defendant in a suit by the sheriff upon the bond is charged with the knowledge of the prior levy and sale by the giving of the bond, unless he gives affirmative proof upon the trial of ignorance of those facts.</p>

<p>The settlement of ¡i disputed account at any sum the parties fix upon is a good accord and satisfaction, but an error of addition in figuring up the account does not conclude the parties, although a receipt in full has been given, and the amount of the error in the addition (uot having been considered in the settlement) may be recovered.</p>

<p>Motion costs.—Effect of subsequent discontinuance without costs. —Where ail action is discontinued without costs, the discontinuance is in the nature of a final judgment, and interlocutory costs, being incidents of the principal thing, are extinguished.</p>

<p>Motion by defendant to correct jndgment by striking an amended complaint from the roll.</p>

<p>A plaintiff may sue on contract for goods sold and delivered, and if the defendant pleads that the term of credit on which the goods were sold had not expired when the action was commenced, the plaintiff may in such an action avoid this defense by proving that the credit was obtained by fraud.</p>

<p>Discontinuance of action.—Where the cause of action has been assigned, and the assignee on the one hand and the defendant on the other, agree to discontinue the action, effect ought to be given to their agreement.</p>

<p>Partnership Names.—Where persons come from other States and make contracts here, they must in respect to usury, licenses and firm names, conform to the laws of New York, or they will lose their ventures. Pennsylvania, although a foreign State, is not a foreign country. Where a firm doing business in Philadelphia, Penn., under the firm name of “ John B. Ellison & Sons," opened a branch office in the City of New York, and sold in their firm name goods to the defendant, for which the latter gave a note,—Held, that as 11 JohnB. Ellison,’’ whose name was used in the firm, had no interest therein, that under chapter 281 of the Laws of 1833 forbidding the the use of names of persons not interested in the firm, no recovery could be had.</p>

<p>Motion to set aside the judgment entered herein, upon the ground that the court had no- jurisdiction of the action, or that the action be transferred to the supreme court.</p>