Volume 1 — Sweeny's New York Superior Court Reports

This action was on two promissory notes made by defendant Farrar, payable to the order of, and endorsed by, defendant Bloodgood.

Action to recover damages for causing the death of the plaintiff’s intestate. The complaint alleged that the death was caused by the wrongful act, neglect, and default of a servant and agent of the defendant, employed by him as driver of a pair of horses belonging to the defendant. The answer denied all the allegations of the complaint. The case was tried before Mr. Justice Barbour and a jury.

This case was tried before a referee. The parties to this action are husband and wife. The plaintiff was entitled, under the will of her father, to a certain share of his estate, in her own right, and free and clear from all inter ference of her husband. She gave a power of attorney to her husband, the defendant, to demand and receive the proceeds of her share of her father’s estate. The defendant was also one of the executors of the estate.

<p>A letter of attorney to collect, does not authorize the attorney to indorse a draft in the name of Ms principal. Meld, that a defendant, to whom the attorney had indorsed the draft, was liable to the principal, in an action for money had and received.</p>

<p>On appeal from the taxation of a sheriffs bill of fees the appellate court will be controlled by the evidence before the taxing officer, and where no proof whatever is furnished by the sheriff, not even the usual affidavit required by law, the correctness of his charges will be determined upon the evidence furnished by the party objecting.</p> <p>Where an execution had been levied upon property sufficient to satisfy the judgment, and the judgment was compromised for less than the whole amount, held, that the sheriff was entitled to poundage upon the whole amount of the judgment. Held, also, that three dollars a day was a reasonable sum for watchmen.</p>

<p>The fee of lands taken under that part of the Act of 1813, which relates to the opening and laying out streets (Laws of 1813, vol. 2, p. 408), as amended by Act of 1818 (Laws of 1818, p. 196), does not pass to the Corporation until an acceptance of the, land by some affirmative act by the Corporation, unless the Corporation neglects so to accept during the fifteen months, succeeding the confirmation of the report of the commissioner. In case the Corporation so neglects, the fee will not pass until at least the expiration of said fifteen months.</p>

<p>Where, in a contract made by a vendor at A. to ship goods from B. to C., no time is mentioned within which the shipment is to be made, the law implies a contract to make the shipment within a reasonable time.</p> <p>This reasonable time is to be determined on a consideration of all those facts which both parties had in view in making the contract.</p> <p>As a general rule in such a case, a reasonable time is that which is sufficient to transmit notice of the contract from A. to -B., and to complete a shipment commenced immediately on the receipt of such notice.</p> <p>Special facts, either known, or presumed to he known, to both parties, will modify these rules.</p> <p>Hence, obstructions of a railroad over which the vendor expected to receive the goods, by freshets or rebel raids, or a delay of that railroad in delivering the goods, or an appropriation by that railroad of the goods to its own use, not being shown affirmatively to have been known to the vendee at the time of the making the contract, cannot be considered in determining the question as to what should be deemed a reasonable time for its performance, they not being presumed to be within the vendee’s knowledge. The eases of Wibert v. Erie Railroad Company (12 N. Y., 251), Cross v. Beard (26 N. Y., 85), Cooker v. Franklin Co. (3 Sumn., 530), are not in conflict.</p> <p>But a fi-eshet, being an act of God, will excuse non-performance if it render performance impossible.</p> <p>It must, however, be pleaded as an affirmative defense.</p> <p>It must also be proved to have rendered performance impossible.</p> <p>And at the time of making the contract must have been unknown to the vendor.</p> <p>Where the contract is for the vendor to ship goods from one place to the vendee at another place, no time or place being prescribed for payment, in such case the shipment is to be precedent to the payment.</p> <p>Discussion as to what acts and matters will operate as a waiver of performance, or of a breach.</p> <p>Under section 158 of the Stamp Act of June 30, 1864, the omission to affix a proper stamp does not avoid an instrument, unless such omission was with intent to evade the provisions of the act.</p> <p>Therefore one who seeks to exclude from being given in evidence an instrument by reason of its invalidity in not being properly stamped must show affirmatively that the omission was with intent to evade the provisions of the act.</p> <p>But, if the burden of proving the absence of such intent was on the party offering the instrument, still, if it be received by the Court under the general objection that the want of a proper stamp renders it invalid, a judgment will not be reversed by reason of such reception.</p> <p>As the defect arising from the want of a proper stamp could have been remedied by evidence as to the intent of the omission, the objection,' to be tenable (in case of reception), must be placed on the ground of the absence of such evidence. Per Jones, J.</p> <p>An unstamped contract is not invalid, unless the omission to stamp was with the intent to evade the provisions of the act of Congress, and the burden of proving such intent is upon the party objecting. Per concurring opinion of Moneli, J.</p>

Action to recover the possession of a lot of land, and the building thereon, situate on the south-east corner of Madison avenue and Thirty-first street, in the City of New York. s The action was tried before Mr. Justice Jones, without a jury, who ordered judgment in favor of the defendants, confirming their title to the premises in question, from which judgment the plaintiffs have appealed.

This case was tried before Chief-Justice Robertson and a jury. The action was to recover possession of certain real property in this city. Upon a former trial the jury found a verdict for the defendants, which upon appeal* was set aside and a new trial ordered.

This action was to recover damages alleged to have been sustained by reason of alleged violation of instructions in regard to sale of cotton consigned by the plaintiff to the defendants as commission merchants in New York City, and was tried before a referee. The case came up on ,appeal to the general term on exceptions to the referee’s report. The principal exception raised the question as to the value of the cotton in controversy.

The action was to recover a quarter’s rent (from May 1 to August 1, 1862), under a written lease, for six years, from May 1,1860, of the first floor of the building on the south-east corner of Broadway and Twenty-third street.

This case was tried before Mr. Justice McCunn and a jury. After the plaintiffs had closed their case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion of the lumber for which the action was brought as merchantable, was not prime or merchantable, respectively, as claimed, but was only refuse, and of a vastly inferior quality to prime or merchantable.

This action was tried before Mr. Justice Jones. The nature of the action, and the facts, will fully appear from the following finding of fact and conclusions of law. Held: including, of course, the holder of the 1,000 shares, which are the subject of this sale— the increment attached to each and every share of stock at that time existing. The vendor, therefore, actually received the 1,000 shares of additional stock.

A motion was made at Special Term, before Mr. Justice McCunn, for the appointment of a receiver. The action was to recover possession of real property. The complaint alleged that plaintiff, being the owner of the premises leased the same for a term of years to the defendant Nichols, by lease, with covenants against underletting, unless by the consent, in writing, of the lessor.

<p>This was a motion for a reargument of an appeal.</p> <p>The action was brought originally against the Mayor, &c., of the City of New York to recover damages for the death of the plaintiff’s intestate, occasioned by the alleged negligence of the servants of the defendants. The Mayor, &c., appeared, and answered the complaint.</p> <p>The issues came on for trial before Mr. Justice McCunn and a jury, when the plaintiff’s counsel moved to amend the summons and complaint, “ pursuant to a consent signed at the office of the Corporation Counsel,” by substituting the Board'of Supervisors of the County of New York, as defendants, in the stead of the Mayor, &c. The motion was granted, and an order in form entered by the Clerk.</p> <p>The trial then proceeded, and resulted in a verdict against the defendants. An appeal was taken to the General Term, and a case made presenting the proceedings on the trial.</p> <p>The General Term reversed the judgment and vacated the order allowing the amendment, on the sole ground that the consent of the Corporation Counsel was ultra vires and void.</p>

Demurrer argued at Special Term, before Chief-Justice Robertson. The complaint alleged that the defendant was created under an act of the Legislature, entitled “An act to. create a Metropolitan Fire Department, and to establish a fire department therein.” That the defendant owned and operated, worked and managed a certain fire steam-engine.

This case was tried before Mr. Justice Jones and a jury. The facts are as follows: In July 1, 1862, the plaintiff leased 182 Fulton street, this city, to John P. Wake, for the term of eleven years and ten months, at the yearly rent of one thousand dollars; and, in addition thereto, if the premises should, at any time during the continuance of the term thereby granted, be rented for or yield to the said Wake, “ his executors, administrators, or assigns, more than one thousand…

This case was tried before a referee. The action was brought by the plaintiff as administrator of Richard Quinn, deceased, to recover against the defendant for services as draughtsman and surveyor. Upon the trial the plaintiff offered in evidence a letter from defendant to Richard Quinn, containing the terms and agreement of employment. Defendant’s counsel objected to the letter being admitted in evidence, on the ground that the letter was unstamped.

This case was tried before a referee. Appeal from a judgment. This was a proceeding under the lien law of 1863.

This case was tried before Mr. Justice Jones and a jury. The action was brought to recover damages sustained by the plaintiff by being run over by a horse and cart belonging to defendants. The jury found a verdict for the plaintiff. A motion for a new trial was denied. The defendants appealed from the order refusing a new trial, and also from the judgment. The questions presented to the General Term, and also the facts, are stated seriatim in the opinion of the Court.

This case was tried before Mr. Justice Barbour and a jury. The plaintiff, then being about the age of nine years, on the 6th day of September, 1861, got into the defendants’ car at Fifty-ninth street, to go down to a butcher’s shop on the First avenue, between Forty-sixth and Forty-fifth streets. He got in at the rear platform; after a while passed through the car, and seated himself on the step of the front platform.

<p>The taking possession by a landlord of demised premises, in which there remains fixtures belonging to a tenant, after such tenant has been removed from the premises by “summary proceedings,” is not, of itself, a conversion by the landlord of the tenant’s property so left on the premises.</p> <p>Nor is a landlord liable, in an action of trover, for refusing to deliver such property, on demand of the owner, made after the landlord had leased the premises and delivered the possession to another tenant. The demand should be made of the lessee in possession*</p>

This case was tried before Mr. Justice Jones and a jury. Held: and upon which the defendant was liable to them; in the event of the plaintiff not succeeding in the recovery of the $500 as a loan, he would be remediless, while the defendant has his remedy against Merrill, who received the money.' The check, being drawn to the order of the defendant and indorsed by him, is complete evidence that…

This action was tried before Chief-Justice Robertson and a jury. This action was brought to recover damages sustained by a collision between a car of the Central Park, North and East River Railroad Company, and a locomotive of the Hudson River Railroad Company. On the 30th of July, 1866, the plaintiff entered one of the cars of the Central Park, North and East River Railroad Company, intending to ride as far as Eorty-first street and Tenth avenue.

This case was tided before Mr. Justice McCunn and a jury. The action was brought to recover liquidated damages for breach of covenants by defendant, contained in a lease by plaintiff to him of premises Nos. 604, 606, and 608 Broadway.

This case was tried before Mr. Justice McCunn and a jury. The action was to recover for property destroyed by a mob on the 14th of July, 1863. Plaintiff was a jeweller,,and had a place of business at No. 299 Tenth avenue, New York, in which were his tools and implements of trade and a small stock of goods.

This case was tried at Special Term, before Mr. Justice Freedman. This was an action in equity, in the nature of a bill quia timet, to compel the defendant specifically'to perform a covenant of payment and indemnity in favor of plaintiff.

<p>This case was tried before Chief-Justice Robertson and a jury.</p> <p>The action was for goods sold and delivered. In ¡November, 1867, plaintiff held an auction sale of certain farm produce, stock, and farming utensils, before then belonging to the estate of which she was administratrix. The defendant, a neighboring farmer, sent two of his hired men to purchase for him property at this public auction. One of them purchased, and had struck off to him, for the defendant, various articles of property, to the amount in all of eight hundred and. fifty-eight dollars and thirty-five cents; and the other purchased and had struck off to him, at the sale, articles to the amount of ninety-one dollars and ninety-five cents. All -the articles, so purchased, were delivered and taken to the defendant’s farm, and used thereon. The defendant acknowledged his liability for articles to the value of eight hundred and thirty-six dollars and forty cents, but refused to pay for the balance, about one hundred and fourteen dollars, alleging that the purchase of those articles was wholly unauthorized by him. He so testified, and the two hired men corroborated him in that respect on the trial. There was some evidence tending to show that the hired men.had discretionary authority as to what they should purchase on defendant’s account; also some evidence tending to show that all the property, including the articles in dispute, was bid. off in the name of defendant, by the hired men,, respectively, and defendant’s name given to the auctioneer as the purchaser; and that afterward defendant ratified these acts of his agents, and agreed to pay. The preponderance of evidence, however, was the other way.</p> <p>The jury found a verdict for the plaintiff for the full amount claimed.</p> <p>The defendant appealed.</p> <p>The verdict was against evidence, and should be set aside.</p> <p>The sale of the goods in question was at auction, and there is no doubt that the defendant was not present at the sale. He can be charged with the amount in dispute only by establishing either that the goods which he denied having purchased were bought by his agents authorized to buy them, or that he agreed to become responsible for their purchases as his own.</p> <p>There was no original authority to purchase the goods in question shown by the testimony. Both of the men who are alleged to have bought them for the defendant, while testifying that they had been authorized by him to buy some things, srich as hay, oats, &c., deny that they were authorized to buy the goods in dispute, and state that they bought those things for themselves, gave their own names in at the sale, and were personally charged with them by the auctioneer. There was no testimony by which these statements .are contradicted.</p> <p>The jury could have had no right to interpret any thing in the conversation or acts of defendant as amounting to an acceptance by him of the purchases in question as his own, and as a.promise to pay for the goods so bought; such a promise would have been within the statute of frauds. The Judge’s charge was explicit on this point. Tet, as the proof is all to the effect that the defendant did not authorize the purchase, the jury must have founded their verdict upon some such supposed subsequent assumption of the debt by him.</p> <p>No exception having been taken to the charge of the Justice this Court will review only the exceptions taken to certain parts of the evidence relative to questions of law, and none of such exceptions are well taken.</p>

<p>A statement, by a judge of some or all of the reasons which have operated upon Ms mind and induced his ultimate decision upon a question before him is not a subject of exception.</p> <p>A proceeding before a judge other than the one before the trial was had, and that, too, after the latter had, upon a similar motion, denied the same, was wholly irregular.</p> <p>The proper course for the aggrieved party was to have appealed from the first order to the General Term.</p>

<p>Effect of section 5, title 2, chap. 7, part 2 R. S., with reference to the charge of the judge; and what uncontroverted facts will not, as matter of law, constitute an immediate delivery, &c:, under this section.</p> <p>If the facts bearing on the question of Immediate delivery, followed by an actual and continued change of possessions, are uncontroverted, the judge should determine, as matter of law, whether there was such immediate delivery, &c., or not; if he determine there was, he should charge the jury that it devolved on the defendant to prove that the sale, &c., was fraudulent, and made with the intent to hinder, delay, or defraud creditors; it he determine there was not, then he should charge the jury that it devolved on the plaintiff to show to their satisfaction that the sale, &c., was made in good faith and without any intent to defraud, and if the plaintiff failed so to show to their satisfaction, that then they should find a verdict for the defendant. If the facts bearing on the question of immediate delivery, &c., are in dispute, then the question, as to whether there ’was such immediate delivery or not, should be submitted to the jury, with instruction that as they found on that question, so would the burden of proof on the question of fraud devolve; if in the negative, it would fall on the plaintiff to prove to them satisfaction that the sale, &c., was made in good faith and without any intent to defraud; and if he failed so to satisfy them, their verdict must be for the defendant; if in the affirmative, it would fall on the defendant to prove to their satisfaction that the sale, &c., was fraudulent, and made with the intent to hinder, delay, or defraud creditors; and if he failed so to prove, then the verdict must be for the plaintiff State of facts which in this case were held as matters of law insufficient to show an immediate delivery, &e.</p>

This case was tried at Special Term before Mr. Justice Garvin.

Justice Jones, at Special Term, allowing the respondents, as the successors of “ The Mechanics’ Banking Association,” to bring an action against the appellant, upon a judgment recovered in 1854, to test the validity of an insolvent’s discharge. “ The Mechanics’ Banking Association ” (the original plaintiff in the judgment in question) claim to have become “ The National Mechanics’ Banking Association of New York,” under and in pursuance of the act of Congress of June 3,1864…

This was an action in equity to rescind and have declared void a certain contract in writing, executed by the plaintiffs and the defendant Beers, for the sale to the latter of certain lands on the corner of Elm and Worth streets, in the City of New Y ork, on the ground of fraud and mistake; the contract to purchase having been made by defendant Beers, as agent of and for the benefit of defendant Faulkner, and duly assigned to him.

This case was tried before Chief-Justice Barbour and a jury. The action was to recover rent reserved in a lease of land and premises in the City of New York, executed by the plaintiff, as lessor, to The Judson Horseshoe Company, lessee. The action was brought against the defendant Sears, and also Frederick Judson, and John Doe and Richard Roe (names unknown).

This case was tried before Mr. Justice Jones and a jury. Appeal from judgment entered upon the verdict of the jury in favor of the plaintiffs, that the plaintiffs have possession of one hundred sewing machines, and assessing the value thereof at $7,000, &c., &c.; and, also, from an order denying the motion made by the defendants upon the Judge’s minutes for a new trial. The facts fully appear in the opinion of the Court.

This case was tried before Mr. Justice Jones and a jury. Appeal from the judgment entered upon the verdict rendered, and from an order denying the defendants’ motion for a new trial on the judge’s minutes, and Appeal from an order made at Special Term, denying defendants’ motion for a new trial, on the grounds of surprise and newly discovered evidence. The facts are disclosed by the opinion of the Court.

<p>A continuing contract to pay for all the beef which should be sent to a market stand occupied by one McM. cannot be terminated by a mere notice to the vendor that the defendant had nothing to do with the business carried on at such stand. The promise to pay had no connection with the business; and the contract could be cancelled only by notice that the defendant would no longer be liable.</p>

TMs case was tried before Mr. Justice Freedman and a jury. The complaint alleged that the defendant, employed the plaintiff to sell two mortgages of forty thousand dollars upon real and personal estate ; that, upon such employment, the plaintiff performed work and services reasonably worth one thousand dollars, which sum the defendant had promised to pay. The answer was a general denial.

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiffs and against the defendant. The exceptions presented but two questions, namely, first, whether an agreement was entered into between the parties as found by the referee ; and, secondly, whether the agreement so found was a legal and valid agreement.

This was an action to recover damages for injuries sustained by plaintiff in consequence of being thrown or falling from the front platform of one of defendants’ ears, under the wheels, and being so injured as to require amputation of one of his legs.

This case was tried before Mr. Justice Jones and a jury. The action was to recover damages against defendants, carriers of passengers for hire, for negligently causing the death of John H. Gonzales, plaintiff’s intestate. On the 15th of November, 1864, Gonzales took passage on one of defendants’ “ way” passenger trains for the village of West Mount Vernon, where he resided, and at which place was a station on defendants’ road.

This case was tried before Chief-Justice Barbour and a jury. ■ The action was brought to recover damages for injuries sustained by plaintiff from falling into an excavation.

This case was tried before a referee. The action was brought to recover commissions alleged to be due to the plaintiffs for orders for artificial limbs sent to the defendants ; also for the defendants’ proportion of the cost of advertising their artificial leg in circulars and books issued and distributed by the plaintiffs. The referee reported in favor of the plaintiffs: Judgment was entered, and defendants appealed to the General Term.

<p>An agreement to give a lease or to rent is not a lease unless accompanied by actual possession; and unless there be a special covenant to that effect, a lessor is not bound to put his lessee in possession of the demised premises as against a -wrongful holder.</p>

This was a motion made at General Term to set aside an order made at a previous General Term, reversing a judgment entered upon a report of a referee. An appeal from the judgment had been argued before a General Term of the Court composed of three of its justices. Subsequently, upon a concurrence of two of the justices, a decision was filed and an order entered reversing the judgment.

This case was tried before Mr. Justice Monell and a jury., The action was to recover damages alleged to have been sustained by plaintiff from injuries received through the negligence of the defendants.

This, case was tried before Mr. Justice Freedman and a jury The action was to recover damages sustained in consequence of the death of plaintiff’s husband, through the alleged negligence of defendants. The defendants are a corporation, and own a factory building in Delancey street, in the city of New York, and were and are engaged in the business of manufacturing and selling sewing-machines.

Justice Jones, denying a motion to stay the proceedings in the action. The action was to foreclose a mortgage made by Jacob B. Tallman, one of the defendants, to John P. Hays, and assigned to the plaintiff.

This case was tried before Mr. Justice Jones and a jury. The action was brought to recover commissions on the sale of certain real estate belonging to the defendant. The defendant denied in his answer that the plaintiffs procured him a purchaser for the property. The jury found a verdict for the full amount claimed and the defendant appealed. A motion was made for a new trial on the judge’s minutes and denied, but no appeal was taken from the order denying said motion.

<p>Where the language of a contract is so uncertain, or the subject-matter to'which it ia intended to apply is so doubtful, that the true, intent -and meaning of the instrument cannot be satisfactorily ascertained from the contract itself, parol evidence is admissible to explain.</p> <p>On a question of fact, where there is evidence tending to sustain the cause of action or defence, the case should be submitted to the jury.</p> <p>A new trial granted for error in the judge in excluding competent evidence, and in taking case from the jury which should have been submitted to them.</p>

The action was to recover two thousand five hundred and twenty dollars as liquidated damages for the breach of a contract. between the parties.

This case was tried before Mr. Justice Jones and a jury. Appeal from judgment, and order denying motion for new trial.

There are two orders appealed from: one dated November 2, 1868, and entered December 26, 1868 : one dated January 15,1869. As to first order: This appoints a receiver over the specific real estate described in the complaint, and therein averred to belong to a partnership therein alleged to have existed between William and John Gregory, as well as generally of debts due that copartnership.

This case was tried before Chief-Justice Robertson and a jury, The action was brought by agents to purchase, to recover against the principal the amount paid by them in the purchase, and also their commissions and expenses, less the sums realized by them on a- sale of the goods purchased, made by them after their principal had refused to reimburse them.

This was an appeal from an order made at Special Term, by Mr. Justice McCunn, dissolving an injunction which restrained the defendants from cutting through and erecting a skylight upon the roof of the premises No. 815 Broadway.

This is an appeal from a judgment entered upon the report of a referee. The action was brought to recover the value of fifty shares of the capital stock of the Columbian Insurance Company, alleged to have been the property of plaintiff and wrongfully converted by the defendant to his own use.

This case was tried at Special Term, before Chief-Justice Barbour. The action was brought to compel the conveyance by the defendant to the plaintiff of the undivided half part of certain lots of land in this city.

The action was to recover against the defendants, as common carriers, the loss, by melting and leaking, from seventeen firkins of butter, shipped by the plaintiffs, at the port of New York, on board of the steamer “ Western Metropolis,” owned by the defendants, to be conveyed to the city of New Orleans. The complaint alleged that the butter was so negligently and carelessly stowed and carried by the defendants, that it leaked from the firkins or was otherwise damaged.