Volume 10 — Abbott's New York Practice Reports

<p>Defamation.—Complaint.</p> <p>To say of a man, after a libel has been published, that he is the author of it, is actionable per se.</p> <p>Where one of a board of public officers, at a meeting of the board—while a resolution was pending, recommending the employment of the plaintiff—declared, that he knew that the plaintiff was the author of an obscene caricature, which had been published to ridicule one of the official acts of the board, and which was also a libel upon individuals,</p> <p>Held, 1. That the charge was pertinent to the subject under discussion, and was conditionally privileged.</p> <p>2. That, to entitle the plaintiff to maintain an action for defamation, he must establish that the charge was made without reasonable or probable cause.</p> <p>3. That the defendant having declared that he knew that the plaintiff was the author of the caricature, without indicating what he relied upon for making the assertion, an averment in the complaint that the plaintiff was not the author, and had no complicity therein, was sufficient, prima facie, to show that there was a want of probable cause.</p> <p>Where the occasion upon which the words are spoken repels any presumption of malice, and proof of it is necessary to maintain the action, it is sufficient to aver that they were spoken maliciously, without setting forth, in the complaint, the facts and circumstances which show the existence of malice.</p> <p>What is meant by the term malice, explained; and the dictum, in Brommage a. Prossor (4 JB. & Q., 247), that there are two kinds in actions for defamation, and a distinction between the word in its popular and its legal sense, declared to be erroneous.</p>

<p>Appeal.—Notice of Decision.—Dismissal of Appeal.—Striking out Answer for Contempt.— Substituted Service.—Attachment for Contempt.</p> <p>A decision rendered by a court of record, upon default of the appellant, is not appealable.</p> <p>Actual notice of a decision overruling a preliminary objection to an order to show cause, and requiring the party to appear on a further day named, is sufficient notice to appear then, although no formal order be made and served.</p> <p>An appeal will not be dismissed on the ground that the appellant has violated a stipulation by which he obtained a stay of proceedings pending the appeal.</p> <p>Form of affidavit for examination supplementary to judgment,—Held, sufficient.</p> <p>Forms of proceeding by substituted service under Laws of 1853, p. 974, at defendant’s place of business where he evades personal service, and his residence is not known; and forms of proof of such service, and of attachment,—Held, sufficient.*</p> <p>The judge to whom the application for an order for substituted service is made, being satisfied that all requirements bf the statute, necessary to confer jurisdiction, have been complied with, may make the order; and having been made, it cannot be questioned collaterally, as for instance upon a motion to vacate an attachment which was issued thereon, and which recites all the necessary jurisdictional facts.</p> <p>It is competent for the court, on appeal in such case, to take cognizance of the fact that the conditions necessary to confer jurisdiction recited in the attachment really did exist, though not set forth in the moving affidavits.</p> <p>An attachment for contempt being regular upon its face, and containing all the recitals essential to confer jurisdiction, the party moving to set it aside upon the ground of defects in the proceedings upon which it was founded, or for a failure to serve an affidavit of the facts charged as constituting the contempt, must show affirmatively the defect or omission, or, by affidavit in support of his motion, must create such a presumption as will throw upon the other party the onus of proving that his proceedings are regular.</p>

<p>Exception directed to be heard in the first instance at general term.</p> <p>The action was against the defendant, sheriff of the county of Kings, to recover upon his liability as bail under the provisions of the Code.</p> <p>The allegations of the complaint were as follows : .</p> <p>The plaintiffs above named, by Benedict, Burr & Benedict, their attorneys, respectfully show to this court:</p> <p>That at all the times hereinafter named they were co-partners, doing business in the city of New York, under the firm name of Metcalf & Duncan.</p> <p>These plaintiffs, on information and belief, further allege, that the defendant, Burdett Stryker, was sheriff of the county of Kings at and from August 1,1857, to December 31, 1857.</p> <p>That an order of arrest, of which a copy is hereto annexed, marked Schedule B, was duly issued by the Honorable C. A.</p> <p>Peabody, at that time a justice of the Supreme Court of the State of Hew York, to the said defendant, on or about the 15th day of August, 1857, in an action in said court, wherein said plaintiffs were plaintiffs, and one George C. Harriman was defendant, requiring the defendant in this action to arrest and hold to bail, in the sum of five thousand dollars, the said Harriman.</p> <p>That thereupon said defendant arrested said Harriman, on or about the 20th day of August, 1857, and thereafter allowed the said Harriman to escape from his custody ; and on or about the 25th day of August, the said defendant delivered to the plaintiffs’ attorneys, by whom the order of arrest was subscribed or indorsed, a paper purporting to be a certified copy of an undertaking of the bail taken by him upon the discharge of the said Harriman from arrest, a copy of which is hereto annexed, marked Schedule A; but the same was not executed by two or more sufficient bail, and did not state their places of residence and occupations, according to law ; and that on the next day—that is to say, on or about the 26th' day of August, 1857—a notice was duly served on said defendant, that the plaintiffs did not accept the said bail, but that after the receipt of the said notice by the said defendant, neither the said defendant nor the said Harriman gave to the plaintiffs or their attorneys, by whom the said order of arrest was subscribed, notice of the justification of the same, or other bail, before a judge of the court or a county judge, at any specified time or place, nor any justification, or other notice of justification, as required by law.</p> <p>That on the 12th day of August, 1858, the plaintiffs obtained judgment in said action against said Harriman for the sum of three thousand seven hundred and forty-three dollars and seventy-seven cents, and on the 13th day of August, 1858, caused to be filed a transcript of said judgment in the office of the clerk of King’s county, and an execution to be duly issued to the then sheriff of King’s county, upon said judgment against the property of said Harriman, which was thereafter returned by said sheriff wholly unsatisfied; and thereafter, and on the 27th day of August, 1858, an execution against the person of said Harriman was duly issued to the said sheriff, which has also been returned by the said sheriff, “ defendant not found.” That the said judgment has. not been paid, nor any part thereof, but the same is still unpaid, not appealed from, modified, reversed, or discharged.</p> <p>That the amount of said judgment and interest was duly demanded of said defendant, before the commencement of this action, and the payment of the same refused.</p> <p>Wherefore the plaintiffs demand judgment against the defendant for the said sum of three thousand seven hundred and forty-three dollars and seventy-seven cents, and interest thereon from the 12th day of August, 1858, besides costs of this ' action. Benedict, Bubb & Benedict,</p> <p>Plaintiffs’ Attorneys.</p> <p>The answer denied most of the allegations of the complaint.</p> <p>The action was tried at a circuit court in the county of Kings, before Mr. Justice Lott and a jury, on the 29th day of March, 1859.</p> <p>The plaintiffs, to prove the issues on their part, by Samuel Duncan, one of the plaintiffs, proved the copartnership stated in the complaint, and put in evidence a copy of a judgment-roll, by which they proved the judgment against George C. Harriman, as stated in the complaint. The plaintiffs also proved the ' issuing of the order of arrest, and the arrest of Harriman thereon, by the defendant, as alleged. They also gave in evidence the certified copy of the undertaking mentioned in the complaint, and proved that the same was delivered to the plaintiffs’ attorneys, by whom the order of arrest was subscribed or indorsed, on the 25th day of August, 1857. The terms of the undertaking were, that George C. Harriman, the defendant, “ shall at all times render himself amenable to the process of this court, during the pendency of this action, and to such as may be issued to enforce the judgment thereinbut the instrument did not state the occupations of the bail.</p> <p>On the undertaking were indorsed the affidavits and certificate of acknowledgment.</p> <p>The plaintiffs also proved that a notice that the plaintiffs did not accept the bail, was served upon the defendant, as stated in the complaint.</p> <p>The defendant admitted that a transcript of the judgment ' against George C. Harriman, above-mentioned, was filed in the office of the clerk of Kings county, on the 13th day of August, 1858.</p> <p>The plaintiffs also proved the issuing and return of the two executions, as stated in the complaint, and that the amount of the judgment was demanded of the defendant before the commencement of this action.</p> <p>Thereupon they rested their case, and the defendant’s counsel then offered to prove that George 0. Harriman, at the time of his arrest by the defendant, and for a long time before, was, and ever since had been, utterly insolvent, and unable to pay the judgment, or any part thereof, and that he had no property, real or personal, at the time of his arrest, or for a long time before, or at any time since such arrest other than was exempt from execution. To this proof, the counsel for the plaintiffs objected, on the ground that it did not constitute a legal defence to the plaintiffs’ action, and was not admissible in mitigation of the damages recoverable by the plaintiffs in this action.. The court sustained the objection, and excluded the offered proof, to which decision of the court, the defendant’s counsel excepted.</p> <p>The interest on the judgment was admitted to be $164.40. The defendant then rested, and the court thereupon instructed the jury, that the plaintiffs were entitled to recover the amount of the judgment, with interest, and directed the jury to render a verdict for the plaintiffs for $3908.17. • To which direction and charge, the defendant’s counsel, excepted.</p> <p>The jury then rendered their verdict as directed; and the court thereupon ordered the exceptions to be heard in the first instance, at the general term, and that judgment in the mean time be suspended.</p>

The decision below will be found reported 9 Ante, 124, where the facts are fully stated. From that judgment the defendants appealed to the general term.

The appellant was indicted in the General Sessions, and convicted of a misdemeanor in violating the provisions of chapter 69 of the Laws of 1847, relating to the Hell Gate pilots. That act provides that there shall be appointed by the governor and Senate fit and proper persons to act as pilots for the safe pilotage of vessels through the channel of the East River, commonly called Hell Gate.

The action was brought by Louis and Eliza Chamboret, plaintiffs and respondents, against James Cagney, defendant and appellant.

<p>Appealable Order.</p> <p>An order made at special term, denying a motion to strike out allegar tions from a complaint as irrelevant, is not appealable.*</p>

This action was brought by Charles H. Dabney, John Pierpont Morgan, and James J. Goodwin, plaintiffs and respondents, against Simon Stevens, Edward Learned, Courtlandt P. Dixon, and William L.… Held: and the above-named defendants, never having resigned or retired from their said trusteeship, continued to be and were the trustees of said company from its formation until after the time that the indebtedness hereinafter mentioned was incurred.

Motion on behalf of the plaintiff’s next friend, that the plaintiff’s attorney reimburse to him his expenses in the action. The facts are stated in the opinion. .

Motion at the trial to dismiss complaint. This was a creditor’s action brought by the plaintiff, an executor, appearing as sole plaintiff, seeking to set aside an assignment for benefit of creditors which the debtors, who composed a limited partnership under the Revised Statutes, had made.

<p>Motion for an injunction.</p> <p>The facts are stated in the opinion.</p>

The facts of the case found by the referee were thus stated in his report. The plaintiffs were a corporation duly created by the Legislature of the State of Connecticut, in 1833, and they transacted their business at Hartford, in that State. The defendants were a corporation organized under the General Manufacturing Law of the State of New York, passed in 1848.

It appeared by the evidence on the trial, that William Cochran, defendant, contracted with David Ripley & Sons, plaintiffs, for the use of a log to be used by Cochran on a job he intended to do at Elizabeth, N. J., on Westminster Church. Cochran obtained credit through a letter of introduction and recommendation from third persons.

This action was brought by Henry L. Faris and another, appellants, against William H. Peck and Roderick F. Clow, to recover damages for a conspiracy to defraud the plaintiffs. An order to arrest the defendants was granted, which, upon motion, was discharged at special term. The plaintiffs appealed.

Joseph S. Priest, the plaintiff, was about entering one of the defendants’ cars at Troy, when the brakeman stationed there to see that passengers had procured tickets before entering the car, demanded the plaintiff’s ticket. The plaintiff said he had had no time to procure one. Whereupon the brakeman seized the plaintiff, struck him, and thrust him from the car. The occurrence was in December, 1866. The action was commenced in April, 1869.

<p>Case.—Motion for New Trial.</p> <p>Upon a motion for a new trial founded on a case, which motion was made before the judge who tried the cause, the case, as agreed upon by the counsel, stated a charge to have been made which was materially-differen.t from that which had been actually made by the judge.</p> <p>Held, 1. That the charge should be stricken out of the case, and a correct account of the charge inserted.</p> <p>2. That, as the judge still adhered .to the views expressed in the charge.as sq stated, the motion should be denied.</p> <p>But exceptions which were contained in the case thus agreed on should not be stricken out, although the judge’s notes of the trial did not mention that any such were taken.</p>

<p>Supplementary Proceedings.—Error in Transcript of Judgment.'—Jurisdictional Objection.</p> <p>Supplementary proceedings cannot be maintained upon an affidavit which does not truly describe the judgment.</p> <p>The plaintiff having recovered judgment against Ira "Weed and Mary Weed, docketed a transcript in which the defendants were stated to be Ira Weed and Mrs. Weed.</p> <p>Held, that supplementary proceedings founded upon such docketed judgment must be dismissed.</p> <p>Such an objection goes to the jurisdiction of the judge granting the order, and cannot be cured by amendment, nor waived by the party; but is available at any time in the proceedings. ' .</p> <p>The defendants will not be punished for contempt for disobeying an order founded on such an erroneous affidavit.</p>

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

In December, 1866, the plaintiff commenced an action against the defendant for divorce, in the New York superior court, which, in February, 1867, he discontinued. On January 16, 1868, he commenced this suit, in the New York common pleas. A motion for alimony and counsel fees was made, and on July 33, 1868, granted. From this the defendant appealed, obtaining a stay of proceedings. The order was, on May 18, 1869, affirmed, at general term.

' Motion to open a default. The plaintiffs resisted the granting of the motion, except with a restriction precluding defendants from interposing the answer of a Former Adjudication, the facts are stated in the opinion.

The action was by Gray and others, on behalf of themselves and all other creditors, against the members of a limited partnership and their assignee under an assignment for the benefit of creditors, and it sought an accounting by the assignee, and an application of the assets, under direction of the court, to the claims of creditors. The plaintiffs who appeared, and joined in the complaint, were several, not joint creditors.

<p>Appeal from order overruling demurrer to complaint.</p> <p>This action was brought under the acts of 1847 and 1849, to recover damages resulting from the death of John C. Beach, caused by an explosion or escape of steam on board the defendants’ steamboat, the Empire State, while on her passage from Fall River to the city of New York, the deceased being a passenger on board of said boat.</p> <p>The complaint alleged that he was at the time a resident of the city of New York; that the defendant was a corporation of Massachusetts; that the deceased paid his fare and took passage at Fall Biver for New York; and that the explosion or escape of steam which caused the death, took place through the wrongful act, neglect, and default of the defendants and their agents and servants.</p> <p>The defendants demurred to the complaint, substantially upon the ground that it is not alleged in the complaint, nor does it appear therefrom, that the act or acts complained of occurred within the State of New York.</p> <p>The judge at special term, in deciding the demurrer, assumed that the death, and disaster occasioning it, did not take place within the State of ¡New York; he nevertheless held that the action was well brought, and overruled the demurrer. The case at special term is fully reported, 6 Ante, 415.</p> <p>From this judgment the defendants appealed.</p>

<p>Motion for an attachment.</p> <p>This was a motion upon an order to show cause why an attachment should not issue against the plaintiff, Frederick W. Ford, for contempt, in disobeying an order for the payment of temporary alimony.</p> <p>In November, 1870, an order was made, requiring the plaintiff to pay a sum specified in the order, to the defendant, Mary Ellen Ford, for her support during the pendency of an action for a divorce.</p> <p>The order was served on the defendant, and payment of the sum mentioned in the order demanded.</p> <p>On his neglecting to pay, the order to show cause was made.</p>

Appeal by several defendants from a judgment awarding a fund to the other defendants. This action was brought by the plaintiff as administrator of Albert Lewis, deceased, who had consigned goods to the defendant Perry for sale, and it sought an accounting and payment of the balance due. Other parties were made defendants on allegations that they claimed liens on the balance by virtue of attachments, the validity of which the plaintiff contested.

Motion to direct the clerk to tax costs. This action was brought to recover damages for a trespass alleged to have been committed by defendant, in carrying away plaintiff’s goods. It was tried before Mr. Justice Gilbert, in October, 1868, and a verdict rendered for plaintiff for two hundred and seventy-five dollars. Exceptions having been taken, the court directed the entry of judgment to be suspended, and the exceptions to be heard in the first instance at the general term.

The action was brought by Ann Hodnett against MacPherson Smith, and others. The complaint alleged a conversion by defendants of plaintiff’s property, consisting of the contents of a liquor store.

<p>Appeal from an order.</p> <p>The action was brought by John Premo against Philip Smith.</p>

<p>Infant.*—Sale of Lands by General Guardian.— Authority of County Court to grant Order to Sell.</p> <p>The provisions of 2 Rev. Stat., 193,—entitled “Of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates,”—do not authorize a release or quitclaim to be made on behalf of infants,—e. g., for the purpose of abandoning land taken for a local improvement.</p> <p>Proceedings under an order from a county court, authorizing a consent to such a release, are void.</p> <p>The jurisdiction of the court to alienate the infant’s title by a sale, is derived wholly from the statute.</p>

<p>Mechanics’ Lien.—Costs.</p> <p>If the owner, against whose property a mechanics’ lien is filed for a claim justly due, does not protect himself by depositing the amount with the county-clerk, he will be liable for costs of proceedings to foreclose the lien.</p> <p>It seems, that it would be otherwise if the amount claimed in the notice of lien were reduced on the trial.</p>

Demurrer to complaint. The action was against the defendant as late sheriff of the city and county of New York.

' Motions for several orders in supplementary proceedings, and for execution against the person. The plaintiff, having obtained judgment against the defendant, commenced supplementary proceedings against him under section 292 of the Code; and obtained an order forbidding him from interfering with his property. Upon the return of the •order a reference was directed to examine the defendant and witnesses. The nature of the testimony sufficiently appears in the opinion.

Cyrus Scofield sued James H. Whitelegge, to recover the possession of personal property. The complaint was as follows : “ The above-named plaintiff, for a complaint in ibis action, alleges that the above-named defendant has become possessed of and wrongfully detains from this plaintiff, the following property, that is to say: one rosewood Ernest Gabler piano, No. 6604 (Ernest Gabler, maker), of the value of four hundred dollars.

It appeared by the pleadings and the orders appealed from, that this was an action brought by the plaintiff, alleging a partnership between herself and the defendant, and praying for a dissolution, an account, a receiver, and sale, and a distribution of the property—and payment to herself of whatever was found due to her. The answer denied every material fact alleged, and the issues thus raised were brought to trial.

This action was brought by Leonard B. Lindsley and Isaac B. Cotterell, to recover the amount of thirteen promissory notes, made by the European Petroleum Company, to the order of L. E. Lahens, and indorsed by Lahens to the plaintiffs.

Motion to vacate order of arrest. This was an action for fraudulent conversion of the proceeds of certain uncurrent money sent by the plaintiffs to the defendants, with instructions to convert the same into bankable money, and remit by draft to A. Bell & Sons, bankers, in New York City. The defendants acknowledged the receipt of the money by letter dated June 18, 1859, and agreed to remit as directed.

An injunction was granted, and a receiver of the rents and profits of the premises, the title to which was the subject of this action, appointed in July, 1858, at a special term. The facts of the case are fully stated in the report of that and other proceedings in the cause, 8 Ante, 7. The Corporation appealed from the order for an injunction and a receiver*

<p>Motion to dismiss the proceedings of the petitioner en the ground of former adjudication.</p>

The action was to recover commissions for a number of accommodation indorsements made by plaintiff for defendant. The plaintiff moved for a reference of the issues, upon an affidavit that his claim consisted of a large number of items of account, about two hundred items of which were denied by the answer, and that they would have to be separately proved on the trial.

<p>Demurrer to complaint.</p> <p>In 1866, the common council of the city of Elmira, under the provisions of its charter, 'paved certain portions of some of its streets with wooden pavement, assessing the expenses thereof upon the property-owners adjoining such improvements.</p> <p>This action was brought by the plaintiff, Ariel S. Thurston, “in his own-behalf, and in the behalf of divers others and numerous persons interested in the questions in the complaint presented by the plaintiff,” —to restrain the collection of the entire tax or cost of the pavement, amounting to the sum of twenty-nine thousand dollars.</p> <p>A demurrer was interposed to the complaint, thus raising an issue of law.</p> <p>The several questions raised by the pleadings sufficiently appear in the following opinion.</p>

Richard and Lawrence Hackett sned Edward Belden upon an account, on which plaintiffs, as partners, alleged defendant to be indebted to them. The facts are particularly stated in the opinion.

In September, 1868, the plaintiff, Henry McGuckin, filed with the clerk of the city and county of Hew York, a notice under the mechanic’s lien law, to the effect that he had a claim against the defendant, Julia A. Coulter, on account of work performed and materials furnished upon and in the house and premises on the north-east corner of Hinth-avenue and Sixty-second-street, owned by the defendant; and which had been performed and furnished under a contract with the defendant…

Order to show cause why plaintiff should not have discovery and inspection of certain documents.

<p>Petition for a discovery.</p>

Motion to strike out a defence, or make it more definite and certain. The complaint was for slander.

An application was made to the defendant, Hon. Gray H. McMaster, the county judge of Steuben, for the issue of bonds of the town of Bradford, in aid of a railroad company, under the act of 1869. The issue of the bonds having been allowed, the relator, Hosea Longwell, procured this writ of certiorari, to review the proceedings, upon grounds stated in the opinion.

Motion to strike ont part of an answer. The answer in this action alleged, among other things, that certain third persons, whose interest in the subject-matter of the action appeared from the complaint, were necessary parties to the action, and that a complete determination of the controversy could not be had without their presence. This part of the answer the plaintiff moved be stricken out.

The action was on a promissory note. The allegations of the complaint were as follows: “ That Samuel W. Whittelsey, and William Whittelsey as his security, on the 30th day of December, 1836, at the city of New York, made their promissory note in writing, whereby they promised to pay to Friend Whittelsey or order, ninety days after date, three hundred dollars, for value received. “And said plaintiff further shows, that on the 14th day of February, 1837, at the said city of…

Motion to dismiss an appeal. The action was brought by Madison J. H. Ferris against Benjamin Hart, Lloyd Aspinwall, Gr. Gr. How-land, and others, forming “The National Express and Transportation Company.” The defendant Aspinwall, in his answer, besides making a general denial,' set up certain new matter, to which plaintiff demurred. The special term overruled the demurrer, and ordered judgment for the defendant, with costs.

This was a proceeding under the act to abolish imprisonment for debt, and to punish fraudulent debtors. (laws of 1831, 396.) The petition for a warrant against the défendant set forth a judgment against him, and charged that he had money in his possession which he unjustly refused to apply to the payment of the judgment, and also that he had removed and secreted property belonging to him with intent to defraud his creditors.

<p>Pilotage.—Act of Congress.</p> <p>Hotwithstanding the United States pilotage act (Act of Congress of July 35, 1866), sea-going vessels in the harbor of Hew York are subject to pilotage under the State law.</p> <p>The amendment to the act of 1866, passed February 35,1867, is a re-concession, to the States, of the powers as exercised by them through laws existing at the time of the passage of the original act.</p>

Motion to strike out part of complaint. The action was for a malicious prosecution and arrest. After setting forth the facts relied on as constituting the «wrong complained of, the complaint alleged that the defendant maliciously procured to be published matter concerning the same, which was libellous upon the plaintiff. - These allegations the- defendant moved to be stricken out, as irrelevant or redundant.

Motion that plaintiff be required to amend his complaint. The complaint alleged that, heretofore, by request of the wife of the defendant, the plaintiff and her servants performed for the defendant at, &c., “ work, labor, and services, and furnished divers materials therefor, at the days and times, and in and about the matters and things, and at the prices, specified in an account already delivered to the defendant in respect thereof, and upon which the defendant paid her on…

William L. Wilson, the plaintiff, a duly licensed pilot for the port of New York, on July 34,1870, offered his services to the schooner H. H. Thompson, then bound to said port. At the time of the offer the schooner was not far from Barnegat, and, it was claimed, not on pilotage ground. The evidence as to the position of the vessel, and also as to the limits of pilotage ground, was conflicting.

In August, 1851, the plaintiff’s testator contracted to sell to one Willock certain lots in this city, and agreed to make advances in 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.

Demurrer to complaint. The plaintiff in his complaint alleged the following facts: In the month of January, 1856, Hamel owed Grimm $400, and in payment of the debt sold Grimm the fixtures and stock of a grocery store, and executed a bill of sale therefor; that immediately thereafter Hamel entered into the employment of Grimm as his clerk in attending such store; that in December, 1856, such stock of goods was taken by Lockwood, a constable, upon an execution issued upon a…

This action was tried before a referee. After the referee had made his report, entitling the plaintiff to a judgment,—1st, for the two causes of action set out in his complaint; and, 2d, for a cause of action for $66.82, not mentioned in the complaint,— the plaintiff obtained an order at the Broome Special Term, in April, 1859, in the following form: “ Ordered, that the plaintiff have leave to amend the summons and complaint in this cause, by inserting in the summons a…

Trial by the court. This action was - brought upon an undertaking given on behalf of a defendant, to release property levied upon under an attachment under section 240 of the Code of Procedure, in an action against one Mrs. Boxsius. Before judgment, a motion was made, upon affidavits, to vacate the attachment, and an order was made granting the motion. Judgment was subsequently recovered, and, it remaining unpaid, this action was brought on the undertaking.

Trial by the court. This was an action brought by the plaintiff against the sheriff for the escape of John D. Williamson, who had been arrested upon execution against his person, and was confined within the liberties of the jail, having given the usual bond to such sheriff. The action was tried before Mr. Justice Hoffman, a jury being waived, pursuant to the Code.

<p>Appeal from a judgment, and from an order denying a motion, which had been made on the judge’s minutes, for a new trial.</p> <p>This action was upon a policy of life insurance upon the lives of the plaintiff and her husband, and upon the death of either payable to the survivor. The husband died, and the plaintiff sued upon the policy.</p> <p>The defendants answered that the policy had lapsed and become void, by reason of the failure of the plaintiff or her husband to pay the premiums when they became due. The premiums were, in fact, paid by the plaintiff, after the time for payment had expired, to a person employed by the company; but the defendants claimed that this person was not authorized to receive them, and by receiving them to waive the forfeiture.</p> <p>The cause was twice tried ; upon the first trial, the court directed judgment for the plaintiff. This judgment was reversed at the general term, upon the ground that as the case then stood the plaintiff was not entitled to recover, and that, in any aspect, it was error to order a verdict for the plaintiff upon a state of facts which at best should have been submitted to the jury for their finding, and also because of the erroneous exclusion of evidence offered by the defendant, viz: the charter and by-laws of defendant’s company. That decision is reported in 9 Abb. Pr. N. S., 91.</p> <p>There was then another trial, upon which the court directed a verdict for. the defendants, and the plaintiff appealed.</p> <p>The nature of the evidence on the second trial appears from the opinion of the court.</p> <p>After the testimony was closed, counsel for defendant asked the court to direct a verdict for the defendant, upon the following grounds :</p> <p>1. That by the policy of insurance it expired by its terms on April 25, 1869, and also on July 25, same year, when the premium became due and not paid.</p> <p>2. That also by its terms, the policy could only be renewed or revived by an officer of the company.</p> <p>3. That there was no evidence in the case that it had ever been renewed or revived.</p> <p>4. That there was no evidence that the premium due April 25, 1869, or on July 25, same year, had been paid to the company.</p> <p>5. That the receipt of the money, under the circumstances under which it was paid, was not a revival of the policy nor a payment of the premium, according to its terms, nor a waiver of the forfeiture by the default theretofore made.</p> <p>[Plaintiff’s counsel objected. The objection was overruled and exception taken. ]</p> <p>Counsel for plaintiff then asked leave to go to the jury on all the questions of agency, whether the company, in the position in which Mr. Holley was put by them, was not bound by his acts, and whether the notice given them a month before the death of Mr. Kolgers to the cashier did not require of them to give some notice to repudiate the act of which they were bound to take notice, and whether all plaintiff did was not properly done, and whether they were not bound to impose upon some of their officers, or some of their agents, the duty of repudiating the payment which was brought to their own knowledge.</p> <p>The court declined the request of plaintiff’s counsel, to which ruling plaintiff excepted.</p>

<p>Trial by the court without a jury.</p> <p>The facts are fully stated in the opinion.</p>

The supreme court, at special term, set aside an award of commissioners for lands of Gideon M. Dayton, taken by the Albany and Susquehanna Railroad Company, and ordered a rehearing, upon grounds stated in the opinion of the court. From the order of the special term the railroad company appealed.

The action was brought to recover the possession of eight and one-half casks of oil, and ten bushels of coal, and one tank of oil, the property of the plaintiffs, of which it was alleged the… Held: viz., to the American Oil Manufacturing Company.

Trial by the court without a jury. This was an action brought by the sheriff to recover against the defendants, a foreign insurance company, a debt owing by them for a loss on policy to CooJce da Barton, residents of another State.

<p>Motion to dismiss complaint.</p>

<p>Receiver in Supplementary Proceedings.—Assignee for Benefit of Creditors.</p> <p>A receiver in supplementary proceedings is not trustee alone for the parties at whose instance he was appointed, but for all the creditors of the judgment-debtor.</p> <p>He is to administer the property vested in him, under the direction of the court, for the benefit of all, first discharging those debts which have acquired an equitable priority.</p> <p>The receiver in supplementary proceedings brought an action to set aside an assignment for benefit of creditors made by the judgment-debtor, and obtained judgment therein.</p> <p>Held, that the judgment should allow to the assignee all payments made under the assignment to others than himself prior to the commencement of the action.</p>

<p>Appeal from a decree made by the surrogate in the final settlement of accounts rendered by the defendants.</p> <p>The facts are stated in the opinion.</p>

Motion on the part of defendants to vacate a judgment and execution for irregularity. It appeared that plaintiff’s attorneys resided in Hew York, and defendants’ attorneys in Troy. The time to answer expired January 16,1860.

Demurrer to answer. The action was brought by plaintiff as treasurer of the Racket Court Club, to recover rent. The contents of the pleadings sufficiently appear in the opinion.

This action was brought by the plaintiffs to recover a penalty of fifty dollars, for an alleged violation of an ordinance passed by them on January 25, 1869, in the following words. “ That no petroleum oil, kerosene oil, or other liquid (having like composition or qualities as a burning fluid as said oil), shall be kept or offered for sale as a burning fluid for lamps, or in any receptacle for the purpose of illumination ; nor shall such oil or fluid be purchased for use, or…

<p>Election of Remedies.—Complaint.</p> <p>In an action for wrongfully taking and detaining personal property, the complaint demanded judgment for damages in the amount of the value of the property, with interest.</p> <p>Held, the summons not being before the court, that it was not to be deemed that plaintiff’s action was founded on a waiver of the tort, and a resort to an implied promise to pay, but that the foundation of the action was the tort.</p> <p>Of the election of remedies under the Code.</p>

<p>Application to enforce payment of personal tax.</p>

This action was brought by Michael Lienan and others, against William Dinsmore, President of the Adams Express Company. It appears that the plaintiffs sold goods to one David Wolff, of Memphis, Tennessee, amounting to one-thousand and thirty-seven dollars and fifty-six cents.

Trial by the court. The action was brought by the Shaler & Hall Quarry Company, to enforce the liability of the defendants, George Bliss and.

<p>Justice’s Court.—Appeal.</p> <p>On appeal from a justice’s court under sections 353 and 366 of the Code, the appellate court must hear at the same time and pass upon all the questions, both those of error in law and of error in fact, and of a motion for a new trial. Where the appellate court refused to hear argument upon the whole case, at the same time requiring the appellant to argue his motion for a new trial before proceeding with the ease, or lose the benefit of it, the Supreme Court reversed the judgment and left the cause pending upon the appeal in that court to be proceeded with anew.</p>

The action was brought against the defendants as executors. of Isaac L. Craft deceased, who was a coexecutor with the plaintiffs of the will of Robert Sands. The object of the action was to adjust and recover the amount of assets held by the decedent at the time of his death, as such coexecutor. The referee awarded costs to the plaintiffs, on the ground that defendants had refused to refer the claim under the statute, and the defendants appealed.

This was an action to recover from the defendants the price paid by the plaintiff for what purported to be ten shares of the stock of the Hew York and Hew Haven Railroad Company. The plaintiff employed the defendants as brokers to purchase for him ten shares of that stock. The defendants purchased what was passing in the market as the genuine stock.

Demurrer to complaint. This was an action against the defendants for disturbing a public meeting, or for preventing a public meeting from being held. It was alleged in the complaint, that on the 16 th of February, 1857, Messrs.

This action was brought by William H. Carpenter and William H. Adams, Jr., against Francis T. ¿eating and Henry A. Keating.

<p>Writ of error to the General Sessions.</p> <p>The prisoner was, on the 21st of May, 1858; indicted for assault, with intent to kill, upon one Philip Wolfe, and also for a robbery committed, as averred in a second indictment, on the same day, in stealing over $100, by violence, from the person of Philip Wolfe. To the first indictment the defendant pleaded guilty of an assault and battery, and was sentenced to four months’ imprisonment on October 23,1858. On Rovember 5, 1858, a notice was given of a motion for a new trial, and on Rovember 15, 1859, an order was made,in the General Sessions, by Russell, City Judge, that the conviction and the sentence upon conviction be quashed, and that the order of imprisonment be revoked, “ said indictment having been on the same day” (i. e., the day of its finding), “ by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as robbery.”</p> <p>From this order of City Judge Russell the People appealed to the General Term of the Supreme Court by a writ of error.</p>

<p>Demurrer to the complaint.</p>

The alternative writ alleged that the relators entered into a contract with the Commissioners of Records, a board created by the act of April 13, 1855, by which the relators were to prepare and print indexes to the records of the county, payment to be made by the chamberlain of the city as the work progressed, upon the certificates of the commissioners ; that they had completed portions of the work entitling them to payment of $47,131.97, and had “in due form of law,…

Motion, under the act of 1858, to vacate an assessment. This was a petition brought by William H. McCormack and others, to vacate the assessment for paving Sixth-avenue, from Forty-second-street to Fifty-ninth-street, with Nicolson pavement.

Demurrer to part of an answer. The complaint was as follows: That at the several and respective times thereafter mentioned, the plaintiffs were, and now are, residents of the province of Canada, one of the colonial possessions of the kingdom of Great Britain, of which they are and always have been subjects.

<p>Arrest.—Affidavit.—Allegation of Ownership.</p> <p>In an action by a married woman respecting her separate property, an affidavit on which to obtain a provisional remedy—e.g., arrest—is not insufficient because it alleges -in general terms that the property in question was her separate and individual property, without showing how it became so.*</p>

<p>Sheriff.—Bail.</p> <p>A sheriff who becomes bail may surrender his principal by rearresting him.</p>

<p>Insolvent’s Discharge.</p> <p>Facts throwing suspicion upon the honesty of the insolvent’s proceedings.</p>

<p>Petition for a discharge in insolvency.</p>

<p>Affidavit of Merits.—Summons.—Service and Proof of.</p> <p>Proof of service deemed to be made out, on conflict of affidavits.</p> <p>An affidavit of merits, alleging that the note- in suit has been paid, without stating when, where, or how, is insufficient as a ground of motion to open a judgment.</p> <p>Service of a summons by a party is a mere irregularity, which cannot be taken advantage of after judgment.*</p>

This action was brought by Abraham Bininger against Abraham B. Clark and Melville B. Clark, to enjoin the latter from an alleged wrongful use or imitation of the firm name of the late firm of A. Bininger & Co., in which both parties had been partners.

The action was brought by the plaintiff, a baker by trade, to restrain the defendant from designating the bakery establishment kept by him at Ho. 432 Broadway, in the city of Hew York, as “ Howe’s Bakery,” and from otherwise using the name of Howe in the business, so as to induce the public to believe that the business carried on at 432 Broadway was conducted by the plaintiff.

This action was brought by William H. Bailey against John O’Mahony, Thomas J. Barr, August Belmont, and Ernest B. Lucke. The complaint in the action alleged that John O’Mahony, one of the defendants, had received from a large number of persons large sums of money, and had given in return therefor certificates of ten dollars each, signed by said O’Mahony, payable to bearer, of which the plaintiff was the holder and owner of the aggregate of one hundred dollars.

Charles R. and Theodore E. Townsend brought actions against the Glen’s Falls Insurance Company, the Narragansett Fire and Marine Insurance Company, and the Merchants’ Insurance Company, respectively, to recover upon three policies issued by those companies. The causes were referred to three referees, two of whom were merchants, and the other a counsel- or at law.

This was an action against defendants as bail, -commenced on the 12th day of Hovember, 1855. Held: that the prisoner was entitled to his discharge on the ground claimed, and that therefore, as there had been no valid surrender, the motion for exoneration must be denied.

<p>Criminal Law.—Habeas Corpus.—Bail.</p> <p>One who is arrested in one county under a bench-warrant duly issued on an indictment in another county, cannot be let to bail in the former county; he must first be carried to the county whence the warrant issued.</p> <p>It is only a prisoner who has been committed that can be bailed on habeas corpus, under 2 Revised Statutes, 668, § 43. One who is merely held under arrest to be carried to the county where he is to be committed, cannot be so let to bail.</p>

<p>Injunction.—Amendment.</p> <p>An injunction is not the proper remedy to. restrain a multiplicity of suits.</p> <p>An amendment of an injunction extending it to the agents and attorneys of the party, should not be allowed if the injunction should not have been granted originally.</p>

Solhinger, from which judgment an appeal was taken to the court at general term. During the pendency of the appeal, the defendant obtained from one of the justices of the superior court of the city of New York, a discharge under the New York insolvent law, known as the two-third act (3 Rev. Stat., 5 ed., 91), whereby he was discharged from all Ms debts. The proceedings for the discharge were commenced since the UMted States bankrupt act went into operation.

The nature of the complaint sufficiently appears in the opinion. The demurrer was on the ground of a misjoinder of causes of action. The demurrer was sustained at special term by Mr. Justice Pierrepont, and the defendant appealed.

This action was brought by Samuel S. Gregory against Helen C. Cryder. The cause was referred to a referee, and the trial was continued before Mm from time to time for about two years, and was finally submitted on November 2, 1869. Upon proceeding with his examination of the case, the referee discovered that some exhibits, used in evidence, had not been left with the other papers.

<p>Habeas corpus.</p>

. The decedent, James B. Taylor, died August 22, 1870. The paper propounded as his will bore date June 30, 1870. The decedent was a man of business, and left a large property. He had hired a safe in the offices of a safe deposit company, for keeping his valuable papers. No will was there found after his death ; but the paper propounded was discovered between the leaves of a book in his library.

<p>Judgment on Discontinuance.—Notice of Motion.—Witness’ Eees.—Taxation of Costs.</p> <p>On discontinuance by plaintiff, defendant cannot enter judgment for costs; but must proceed to have the action dismissed, if the costs on the discontinuance are not paid.</p> <p>Notice of motion to set aside a judgment for irregularity on the ground that it is improperly entered, sufficiently specifies the objection that the judgment was entered without authority.</p> <p>"Facts requisite to be shown to entitle the prevailing party to tax-fees for travel' of witnesses.</p> <p>A witness who actually attends in two cases between the same parties, is entitled to fees in both.</p>

Motion by the defendant for an allowance under section 309 of the Code. The case was admitted to have been a difficult and extraordinary one. The only question was, whether there had been a trial within the meaning of the Code. On this point the facts were as follows: The complaint sought to make the defendants, who are brokers, liable for the default of their principal.

<p>Order to show cause why a stay of proceedings should not be vacated.</p>

The decision of the court on the original motion is reported Ante, 103. The facts of the case are fully stated there, and in the following opinion:

The plaintiff, James P. Matthews, recovered judgment against the defendant, Kate Wood, who thereupon moved, upon the judge’s minutes, for a new trial, which was denied. She then appealed from the order denying the new trial, and also from the judgment; both were affirmed on the same hearing, and the clerk of the court taxed the costs of two appeals.

A verdict for the plaintiff, Timothy O. Yan Alen, having been rendered in this action, the defendant moved for a new trial on the judge’s minutes, which motion was denied. Judgment was afterward entered on the verdict, and defendant appealed from the judgment, and from the order denying the new trial, by one notice of appeal. The judgment and order were each affirmed at the general term, with costs.

The action was for an accounting. The complaint set forth a partnership adventure between two firms, and alleged that plaintiff had, by assignment, succeeded to the interest of a member of one of the firms, and alleged that a settlement of accounts which had been made, was obtained by defendant’s false representations, and without plaintiff’s knowledge.

<p>Appeals from' three orders refusing to set aside judgments for irregularity.</p> <p>Three actions were brought, by Louis Sexaner, by Grustavus Petzold, and by Jacob Klaiber, respectively, against the defendant, Henry C. Bowen, who was their employer, to recover balances alleged to be due them, for work, labor, and services.</p> <p>On the last day to answer, the defendant’s attorney served answers of general denial and breach of contract, which were verified as follows:</p> <p> [Venue.] </p> <p>Henry C. Bowen, being duly sworn, says, that he is the defendant in this action, and that the foregoing answer is true, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.</p> <p> [Jurat.] [Signature.] </p> <p>These answers were returned by the plaintiffs’ attorney, on the same day, with an indorsement thereon to the effect that the verification was defective; and on the following day he entered judgments as upon failure to answer.</p> <p>Defendant then moved, at special term, to set aside the judgments for irregularity.</p> <p>These motions were denied, and the defendant appealed.</p>

<p>Motion to set aside an order.</p> <p>This was a motion made to set aside the order confirming the report of the commissioners of estimate and assessment, appointed on the application of the commisioners of the Central Park, for the opening of the Morning Side Park, so far as it related to the five lots hereinafter mentioned, and which were taken for said park ; and also for an order directing the commissioners to make the awards for those lots to Patrick Callaghan, or unknown owners. The report of the commissioners was confirmed July 28, 1870, and contained awards to Phineas H. Kingsland and Wesley Smith, as the owners of five leases of the lots, executed to them by the mayor, aldermen, and commonalty of the city of New York for the term of a thousand years, in pursuance of sales for unpaid taxes' and assessments, and a nominal award Of one dollar to Patrick Callaghan, the owner of the fee.</p> <p>It appeared that the award had first been made, by the commissioners, to Mr. Callaghan, and afterwards changed to unknown owners, and subsequently, when Mr. Kingsland and Mr. Smith presented their claims before the commissioners, they changed the award, and made their report as above stated.</p> <p>The report, as first made, was examined by Mr. Callaghan, and finding the awards given to him, he went away to California, and he alleged that he had no notice that the awards had been changed.</p> <p>It also appeared that a Mrs. Currie had, in August, 1870, commenced an action of ejectment, claiming that she was the owner in fee of three of the lots, in which action the mayor, aldermen, &c., Mr. Kingsland, and Patrick Callaghan were made defendants.</p>

<p>Discovery and Inspection.</p> <p>On an application for discovery, enough must he shown to satisfy the court that there is reason to believe that the documents sought do in fact contain material evidence. Merely showing a belief that the papers in general of the plaintiff contain matter which would help the defence, is not sufficient;</p> <p>It must also appear that the party does not possess other means of proof.*</p>

Appeal by the plaintiff, Herman Dreyer, from a judgment rendered in one of the district courts. The defendant, Louis Rauch, being desirous of selling a bakery belonging to him, authorized the plaintiff, Dreyer, the defendant, Frederick Schmitt, and one Christopher Weinz (each of whom was areal estate broker and acting for himself individually), to sell the same, he agreeing to pay to the one who should procure him a satisfactory customer a commission of five per cent.

The complaint contained two causes of action. The first was, that the plaintiff, at defendants’ request, performed work and labor for them, and boarded their servants and hands; that after-wards the plaintiff and defendants accounted together, and upon' such accounting there was found due and owing for such work, labor, and board, from defendants to plaintiff, over and above all accounts, payments, and off-sets of defendants, the sum of §61.87, which defendants promised to…

This action was brought in a justice’s court to recover the value of a quantity of wood which belonged to the plaintiff, and was left by him within the bounds of the Deposit and Cannonsville Plank-road, in the town of Tompkins, in the county of Delaware. The defendant removed the wood out of the road, down a bank, and some of it fell into the Delaware river.

This action was brought upon a promissory note, in the words and figures following, to wit: (( $OQQ * ' On or before two years, we jointly and severally promise to pay to Michael Casey, or his order, the sum of two hundred dollars. Given under our hands, “ January 8, 1856. (Signed) “ Bernard McCabe, “ Catholic Pastor. “ Charles J. Brabason.” The defendant alleged in his answer that he signed the note as surety, and without consideration.

Demurrer to second defence in the answer. The complaint stated that on the’7th day of September, 1859, at Lenox, in the county of Madison, the defendant assaulted, and beat, and wrongfully and falsely imprisoned the plaintiff, and feloniously ravished her. Judgment was demanded for ten thousand dollars damages, besides costs.

This action was brought by John W. Paddon against James C. Taylor. The complaint alleged that one Hicks, with whom Paddon had had previous dealings, applied to purchase of the plaintiff one hundred and sixty-eight barrels of flour, payable in cash, which were delivered to him. That the purchase was fraudulent.

I. March, 1860.—Motion to vacate an order made by a referee allowing an amendment of the complaint.

Indictment for a misdemeanor in violating the provisions of 1 Laws of 1867, ch. 375, being an “Act for the more effectual prevention of Cruelty to Animals.” The indictment was as follows: “ City and County of New York, ss. “The jurors of the people of the State of New York, in and for the body of the city and county of New York, upon their oath present: That George W. Tinsdale, late of the first ward of the city of New York in the county of New York aforesaid, he then and…

Douglas Chesebrough sued Thomas H. Tompkins and George N. Palmer upon a promissory note made by Tompkins to Palmer’s order, and by him transferred. It was proved on the trial that Tompkins had made the note as payment for some shares in a patented article owned by Palmer, and had given it to one Brown, Palmer’s agent, who had indorsed Palmer’s name upon it.

<p>Abatement.—Continuance.</p> <p>Upon the death of a defendant, it is not absolutely necessary that the application for a continuance be made within a year ; but the court may order a continuance, if within the year, upon a simple motion,—if after the year has elapsed, then on a supplemental complaint.*</p>

Motion to vacate attachment. The plaintiff, John C. Stockwell, holding coupons issued by the State of Illinois, and many years overdue, brought an action to recover thereon, naming as defendants, Erastus N. Bates, State treasurer, and the State of Illinois.

Defendant was arrested in two causes, on the ground that a certain debt due plaintiff had been fraudulently contracted. He now moved to vacate the orders.

Summons for examination of party before trial. This action was brought by James W. Todd against Edward Lambden. The defendant, a resident of New Rochelle, in the county of Westchester, was served in the city of New York on November 16, 1870, with an affidavit, summons and notice to attend for his examination before trial, under section 391 of the Code of Procedure, before one of the judges of the supreme court, at the court-house in the city of New York.

<p>JUDGMENT FOB COSTS.-MODE OF ENTERING.—APPEAL.</p> <p>Where on a recovery of a money demand by the plaintiff, the defendant is entitled to costs, the costs should be set off against the plaintiff’s recovery, and there should be but one judgment entered and execution awarded, for the excess of the one over the other, to whichever party it belongs.</p> <p>When, in such a case,' defendant entered a judgment for his costs, and plaintiff’s application to have the judgment set aside was refused by the court—</p> <p>Held, that the judgment should be reversed on appeal, and the proceedings remitted.</p> <p>It seems, that the order denying the motion to set aside the judgment would be appealable.</p>

Motion to refer back the cause for a resettlement of the case and exceptions. In this case, on an appeal to the general term, after a trial by a referee, the court ordered that the facts found by the general term be annexed to the judgment-roll. On appeal from the general term to the Court of Appeals, the appellants moved in the latter court that they have leave to apply to the Supreme Court for a resettlement of the case.

<p>Motion to vacate an attachment granted as a provisional remedy.</p>

<p>Motion by judgment-creditor to vacate a judgment entered by confession.</p>

Motion to vacate attachment. On August 12, 1870, a summons for money demand on contract was issued in this action, and an affidavit was made by John G-.

<p>A foreign railroad corporation running its trains over the road of a railroad corporation of this State, is not liable for an injury to cattle caused by its train, but to which the negligence of the owner contributed, though the road has not been fenced as required by the act of I860.*</p>

' This action was brought by Jesse N. Bolles, as receiver, against John A. Duff, Wm. H. Roberts and John M. Trimble. On July 26, 1856, Trimble assigned to Whitney and Earl, of Hew York city, as security for a loan to him, a lease of certain lots, upon which he afterwards erected what was known as Laura Keene’s theater, costing about fifty thousand dollars. Upon its face the assignment was absolute.

<p>Surplus.—Judicial Sale.</p> <p>A sale of a decedent’s real property at a judicial sale, does not convert it into personalty; and an application to the court by a creditor for payment of the surplus, must be founded on an order of the surrogate for the sale of the decedent’s real property, and payment of the applicant’s demand.</p>

<p>Appeal from judgment at special term on a trial by the court.</p> <p>This was an action to recover dower. The complaint, the material facts whereof sufficiently appear in the opinion, demanded judgment for a third part of the premises mentioned, and that the same be admeasured and set off to her, and for damages for its detention.</p> <p>On the trial of the action, at a special term, it was conceded that the plaintiff' had been duly paid the pecuniary allowance provided for her by the will. Judgment was given for the plaintiff, the court assigning the following reasons: “ There is no probability that the testator intended that the plaintiff should have both provisions. Tet as he has not said so in terms,.and there is no absolute incompatibility, she is entitled (under the authorities cited) to both, and is not obliged to elect.”</p> <p>From this judgment the defendants appealed.</p>

Motion to open judgment, and to be let in to defend. This was an action against several defendants on a joint liability. An action was previously commenced against them by the same plaintiff, but dropped on account of an irregularity in omitting a subscription to the summons.

<p>Insolvent’s Discharge.—Demand arising on Contract.</p> <p>An insolvent is not entitled to his discharge from an indebtedness which arose from his embezzlement of money and evidences of debt, which came to his possession as a clerk in the course of his employment as such; but this must be clearly shown; the mere statement in the petition that the demand arose when he was clerk of the creditors, for money, &c., which he had in his possession, and did not account for, and appropriated to his own use,—is not sufficient ground for denying the discharge.</p>

Motion to discharge from arrest and for an exoneretur. The action was for malicious prosecution. Defendant was arrested on an order granted October 27, 1859, by the Justice, Ingraham, and was held to bail in the sum of $5000. He now moved, on affidavits, to be discharged, and that his bail be exonerated. The leading facts in the case are stated in the opinion.

Motion in arrest of judgment; and writ of error. I. February, 1860.—The prisoner had been tried at the Oyer and Terminer on an indictment for the murder of one Leary, and was convicted. His counsel now moved an arrest of judgment <?n account of a defect in the indictment.

<p>Appealable Order.</p> <p>To make an order appealable from the special to the general term, it must affect a substantial right. But the fact that it involves an exercise of discretion, does not necessarily prevent such an appeal. The general term cannot dismiss an appeal, simply because the order appealed from is discretionary.</p> <p>The general term may, if satisfied that injustice has been done, set aside an order made by it, and again hear the case.</p> <p>What is a “ substantial right,”—discussed. Per Grover, J.</p>

Motion that complaint be made more definite and certain. The complaint in this action stated that plaintiff had been appointed receiver, under supplementary proceedings, on several judgments recovered against the defendant, Johnson, and had accepted the appointment, and was vested with all the rights and powers of such a receiver; that on May 14, 1859, Johnson was owner and in possession of a large amount of property, real and personal, and then executed to the defendants,…

<p>Motion for leave to enter judgment.</p>

<p>Ne Exeat.—Motion to Discharge.</p> <p>A writ of m exeat allowed under the Code.</p> <p>A denial of any intention of leaving the State is not of itself a sufficient ground for discharging a writ of ne exeat.</p> <p>In an action in which a receiver had been appointed, the court granted a motion to discharge defendant from imprisonment conditionally upon his delivering the property in suit to the receiver.</p>

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

This was an action brought by Sarah M. Fordred, to recover the sum of one hundred and forty-five dollars and sixteen cents deposited with the defendant by her son, Drayson Fordred. . Fordred had given the mother a draft upon the bank dated May 30, 1863, for all money and interest standing in his name. The first deposit was not made until July 30, 1863. Drayson Fordred died June 3, 1864, and the draft was not presented until the latter part of September, 1868.

<p>Supplementary Proceedings.—Return of Execution.</p> <p>An execution may be returned at any time after it is issued, and supplementary proceedings may be taken immediately thereon ; and it is immaterial that the return was made before the expiration of sixty days, at the creditor’s request. The court will not go behind the return, except on a direct motion to set it aside.*</p>

The action was brought by George W. Read as executor, against Edward Lambert. The allegations of the complaint were, substantially, that Henry W. Read employed the defendant Edward Lambert, on commission, as his broker and agent, in buying and selling securities, and collecting the interest thereon.

<p>Jurisdiction of Marine and Justices’ Courts.—Waiver of Want of Jurisdiction. — Evidence. ■—Decree of Surrogate.</p> <p>Whether an action on the official bond of an executor or administrator is an action against the executor or administrator as such, within section 64 of the Code, excluding justices’ courts from cognizance of such actions,—Query?</p> <p>An order of another court cannot be proved by a copy of the record, even though signed by the judge and attested by his seal, unless it is proved or certified to be an examined copy. Per Hilton, J.</p> <p>A complaint on the bond of an executor or administrator which does not show unconditionally that the surrogate had jurisdiction to issue letters on the decedent’s estate, is insufficient. Per Brady, J.</p> <p>The surrogate has not power, on application made before final accounting, to direct payment of a debt out of the order of preference prescribed by the statute, unless proof is made that the debt is due. Per Brady, J.</p>

This action was brought by Eliza O’Leary to recover the value of some property taken by the defendant, Anthony Walter, sheriff of Kings county, on execution, under a judgment recovered against Thomas O’Leary, plaintiff’s husband, at suit of one Fredeke.

<p>Officer.—Action for Salary.—Evidence.</p> <p>What is sufficient evidence that an officer has taken his oath of office f In an action to recover an officer’s salary, where it is not shown that he rendered any services, but his readiness to do so if he had been required is relied on, it is necessary to prove that he was duly qualified.*</p>

The action was brought by plaintiff as administrator of a deceased person. The complaint stated that the deceased was a passenger in a car of the defendants, to be carried from East Albany to the city of New York, for a certain reasonable reward.

Motion to compel amendment of the complaint. This was an action brought by a receiver against several defendants who were trustees of a corporation, seeking to charge them individually with a debt of the corporation.

<p>Stay of Proceedings.—Waiver of Irregularity.</p> <p>Defendant obtained an exparte order staying proceedings, which plaintiff did not treat as void, but moved to set aside ; and the court denied the motion, and directed that the order should stand.</p> <p>Held, that this rendered the stay valid.</p> <p>Plaintiff having entered judgment, notwithstanding an order staying his proceedings, defendant moved to set aside the judgment, and pending the motion, written notice of the judgment being served on him, in order to limit his time to appeal, defendant took an appeal from the judgment.</p> <p>Held, that this was not a waiver of his motion to set aside the judgment.</p>

<p>Motion to open order refusing discharge from execution.</p>

The action was by a wife against her husband for an absolute divorce ; and the plaintiff now moved for an allowance pending the suit.

<p>Trial by Juey.—Justice’s Couet.—Statute oe Feauds.</p> <p>It is competent for a party in an action in a justice’s court, who has demanded a trial by jury, to waive that mode of trial by consent in open court.</p> <p>An agreement by one who has the refusal of property, to attempt to procure a sale to a third party, is not within the statute of frauds.</p>

The action was brought on an undertaking given by defendants as sureties on an appeal taken by their principal from the decision of a single judge 'to the general term, in an action in the New York Marine Court. The appeal was dismissed; and the respondent brought the present action against the sureties in the undertaking. Defendants had judgment, and the plaintiff appealed.

Motion to dissolve an injunction. The defendants in this cause, immediately after its commencement, took steps, under an act of Congress, referred to in the opinion, to remove the cause from the State courts to the United States court. The justice of the supreme court refused to recognize the removal, and granted several injunctions, and appointed a receiver after the defendants had completed their proceedings to take the cause from his court.

<p>Stay of Proceedings on Appeal from Order vacating Judicial Sale.</p> <p>On appeal from an order discharging the purchaser at a judicial sale, and directing his deposit to be repaid, the court refused to consider the merits of the order appealed from; but the purchaser not being shown to be irresponsible, tbe court refused to stay the repayment of his deposit.</p>

The plaintiff having recovered judgment against the defendant, applied to a judge of the court for an order in supplementary proceedings, under section 294 of the Code, to require third parties to appear and be examined.

<p>Cause of Action.—Personal Liability of Trustees of Corporation.</p> <p>Under section 12 of the act of 1848—to authorize the formation of corporations for manufacturing, &c., purposes—a trustee who is elected as such, subsequent to the neglect of the corporation to file the report required, is not thereby rendered liable for a debt previously contracted. So held, where the corporation subsequently to his election, and before any report was filed, gave their acceptances to the creditor, and the action was brought on such acceptances.</p>

On April 25, 1859, the defendant obtained a discharge in insolvency, by order of S. D. Morris, the county judge of Kings; and the relators now brought a certiorari to review the proceedings.

Motion to dissolve an injunction. The injunction was granted as a provisional remedy, and the grounds upon which the defendants asked to have it dissolved were, that the affidavits on which it was granted, were not served ; that it was granted before any service of the summons, and, therefore, before any action had been commenced; that the undertaking given on the granting of the injunction was not executed by the plaintiff, nor by any person on his behalf, but merely by…

The facts of the case are fully reported, 7 Ante, 193, and 8 Tb., 253, in which latter volume the decision on the order now appealed from is stated.

<p>Petition to vacate an assessment.</p>

Trial by the court. This action was brought by the trustees of the Congregation Beth Elohim against the Central Presbyterian Church of the city of Brooklyn, to have a contract declared void, and to reclaim four thousand dollars of the consideration paid on it.