Volume 10 — Bosworth's New York Superior Court Reports

This action was brought by the plaintiff, a judgment creditor of Curtis Judson, against him and Hiram Cranston and George Slater, to set aside an assignment and transfer, made by Judson to the defendant Cranston, and to have it declared fraudulent and void, as to the plaintiff. On the 5th of December, 1854, the copartnership theretofore existing- between the defendants, Judson and Cranston, was dissolved by mutual consent.

Appeal by the defendants, Charles Kunzmuller and Frederick Kunzmuller, from a judgment entered in favor of the plaintiffs, John C. Martin and John W. Graydon, on a verdict recovered on the trial of the cause on the 16th of May, 1862, before Mr. Justice White and a Jury. In April, 1861, the defendants bought, at a large discount, three promissory notes of Graydon, McCreery & Co., one of which did not become due until the latter part of the following month.

This was an appeal from a judgment entered upon the verdict of a Jury in favor of the plaintiffs, and also from an order denying a motion for a new trial. Held: that parties dealing in a particular trade, must be understood to use the language of it, and not of common conversation. The fact, that no such brand as designating the •kind of lead, was known to commerce, would be a good enough ground for rejecting it from the description as a mistake or useless part. (Wig. on Ex.

This action was brought to recover possession of a lot of land on Forty-sixth street in the City of Hew York. The cause was tried on the 21st of April, 1862, before Mr. Justice Robertson and a Jury. The plaintiff, having shown title to the lot in question, in Daniel B. Tallmadge, by a deed to him from Henry J. Seaman and wife, dated March 1,1836, offered in evidence: First. The petition of said Tallmadge to the District Court of the United States for the Southern.

The relief demanded in this action, was to enforce an agreement on the part of the defendant, that- he would execute and deliver a bond to the… Held: owned and controlled by said Gray, (a schedule whereof is hereto annexed,) amounting in all to the sum of one hundred and six thousand dollars and upwards, as follows: The case now on the calendar of the Superior Court, and all issues therein embraced, are to be referred to Henry Mcoll, Esquire, as sole Referee, to hear and…

This was an appeal from a judgment entered on a verdict recovered on a trial before Mr. Justice Barbour and a Jury, on the 11th day of May, 1862. The plaintiff, who is a stone cutter, was in the habit of having marble brought over the Harlem railroad from South Dover to Forty-second street, in the City of New York.

This was an action upon a contract of insurance, to recover for damage by fire to a stock of goods of the plaintiffs, in a store in the City of Yew York, on the, 11th of July, 1860. The character of the contract appears by the pleadings and evidence hereinafter stated. The defendants were a corporation, chartered by the State of Pennsylvania; the plaintiffs were partners under the firm of “ Joseph Kelly & do.” .

This action was brought by Catharine Fogal, Sophia Randall, Peter Provoost, Amanda Tyte, Charles M. Day, John Fogal, Alexander Tyte and… Held: that although some of the plaintiffs were barred by the statute of limitations, the others, who were not barred, were entitled to redeem their share of the land, on payment of their portion of the debt, and thereupon a judgment was entered, dismissing the complaint as to the plaintiffs Peter Provoost, Amanda Tyte, Charles M. Day and…

This action was upon a judgment recovered by the plaintiff against one Martin, the defendant’s testator, on the 26th of ¡November, 1840, in the Tribunal of Commerce, of the city of Paris, France. The answer denied all the allegations in the complaint, except the death of the testator, and the defendant’s appointment as his executor.

The exceptions taken upon the trial of this cause, before Mr. Justice Moxell and a Jury on the 27th of March, 1862, were directed by the Court to be heard, in the first instance, at the General Term, and judgment in the meanwhile to be suspended. In August, 1860, the plaintiff made a contract with the Messrs.

Justice Eobertson and a Jury, on the 8th of November, 1861. The action was for an assault and battery. One of the plaintiff’s witnesses (his son) testified, that he was not present at the occurrence between the parties, but saw the plaintiff on the evening of the same day. He was then asked this question: “Will you state whether he appeared to be hurt?” which was objected to by the defendant and allowed by the' Judge. The defendant excepted.

Justice Mohell and a Jury, on the 17th of February, 1862, and from an order denying a motion for a new trial on a case made. This was an action to recover rent against lessees and’ their assignees, by the plaintiff, who was lessor. ■ The answer of the defendants denied only the indebtedness without controverting the facts alleged in the complaint.

This action was brought to recover the amount of a promissory note for $3,934-r¡nr, made by the defendant to the plaintiff’s order, dated April 11, 1853, and payable four months after date.

, the Referee before whom the issues in the action were tried. The plaintiff sued to recover one-quarter’s rent, which fell due on the first of August, 1861, under a lease made by him to Erastus Z. Wright and Theodore Mace, of a store in Beekman street, in the City of New York.

<p>1. Where an assignee, under a voluntary general assignment for the benefit of creditors conveying, though without specifying it in terms, a lease of real property, enters immediately on all the demised property, excepting parts then in the occupation of sub-tenants of the assignors, and, as assignee, occupies the same until within a few days of the expiration of the lease, and collects the sub-tenants’ rents for the whole of the last quarter, and it is not shown that he entered merely to remove the goods, and that his occupation was no longer than was reasonably necessary for that purpose, nor that he gave notice to the lessor that he did not intend to accept the term as assignee, and there is no explanation of his having collected the rents, he is liable to the lessor, for rent, as assignee of the lease.</p> <p>2. In such case the burden of proof is upon him, to show that the lessees, his assignors, have paid the rent, if he relies on that fact.</p>

Fash, Esq., Referee, to whom the issues in .this cause were referred for trial. This action was brought by the plaintiffs as assignees of the Ogden Bosendale Cement Company, to recover from the defendants the sum of $588.61, the value of a quantity of cement shipped on a boat navigating the canal of the defendants, and damaged by the sinking of the boat caused by an obstruction on the bottom of the canal.

The action was to recover the price of three cases of blue kerseys, alleged to have been.sold and delivered by the plaintiff to the defendants Charles Blake and .Henry 0. Landon, in November 1861.

<p>1. When a party to a contract which is void by the-statute of frauds for not being in writing, refuses to perform, placing his refusal solely upon the ground of- inability to do so, and the other party is not in default, the former cannot maintain an action against the latter to recover back money paid under the contract, without making a demand for its repayment before suit.</p> <p>2. The vendor in an executory contract for the sale of land suffered the land to be sold for non-payment of taxes. The purchaser delayed, and finally refused, to complete the purchase, but solely on the ground of his inability to pay; and he now sued to recover back what he had already paid.</p> <p>Held, That inasmuch as during all this time the vendor’s right to redeem from the tax sale was subsisting, and he was ready and willing to complete the contract, he was not to be deemed in default. -.</p>

<p>1. A creditor, receiving from his debtor, as collateral security, a promissory note made by a third person, past due, with the request to collect it and apply the proceeds to the payment of the debt, though without any express direction to sue upon it, incurs the obligation to use diligence in its collection, and to sue if necessary. In such case, the debtor stands in the relation of guarantor for the collection of the note, and is entitled to the exercise on the part of the holder, of such diligence as is required of a bailee for hire, or of a pledgee.</p> <p>2. The degree of diligence required must be determined from the facts and circumstances of the case, as a question of law.</p> <p>3. Where creditors received such a note as collateral security at a time when the makers were abundantly able to pay it, and on their demanding payment the latter intimated that they had a defense, but the creditors neither notified the debtor thereof, nor brought suit on the note until three months thereafter, and meanwhile the makers had become insolvent, whereby the amount of the note was lost; — Held, that negligence was imputable to the creditors, and that they were liable to the debtor for the amount of the note, and could not recover from him their costs of obtaining judgment against the makers.</p>

Appeal by the defendants from a judgment in favor of the plaintiffs, entered on a verdict recovered on a trial of the cause before Ch. J. Bosworth and a Jury, on the 9th and 10th days of June, 1862; and from an order denying a new brial. ' The plaintiffs, Rufus K. Delafield and George Baxter, sued to recover damages done to their canal boat, which was run into by a ferry boat of the defendants, in the port of Hew York, in January, 1857.

<p>1. Where several persons engage in an enterprise, one of them agreeing to assist by advancing money, and to share in the losses, if any, but not to receive any part of the profits, which are to be divided among the others exclusively, although such one is not to be deemed a partner as between the others and himself, nevertheless, if he holds himself out or allows himself to be held out as a partner, to a third person, who, under the belief that he is such, enters into a contract with them, he is liable ' upon such contract.</p> <p>2. Upon such a contract, notwithstanding that it was joint, a recovery may be had against one alone; and this although another of the debtors has been released by the plaintiff upon a compromise under the Joint Debtor Act.</p>

Appeal by the defendants, from a judgment recovered by the plaintiff against them, after a trial before Mr. Justice Monell and a Jury, on the 8th of January, 1862, and from an order denying a new trial. The action was brought against Patrick Monaghan, John Cavanagh and Leonard Gosling, to recover damages on account of the seizure and sale of certain household furniture, which one Schenck had mortgaged to the plaintiff.

<p>In an action for damages for converting plaintiff’s personal property and ejecting him from his store, it appeared that the plaintiff made a general assignment for the benefit of his creditors to the defendant, who was his landlord, and that some time after the assignment, the plaintiff having meanwhile continued in possession, the defendant excluded him from the premises and took possession of all the goods there, claiming that they all passed under the assignment. The plaintiff testified that a part of the goods so withheld from him, he had acquired subsequent to the assignment, and that at the time of the eviction he was doing a profitable business.</p> <p>Held, upon the evidence in this case:</p> <p>1st That it was error to nonsuit the plaintiff as to his claim for conversion of the property which he alleged that he had acquired subsequent to the assignment.</p> <p>2d. That the eviction was not a case for vindictive damages, the defendant appearing to have acted in good faith.</p> <p>3d. That the plaintiff was entitled to recover his actual damage for the breaking up of his business, and that a verdict for nominal damages should be set aside.</p>

justice Moncrief, without a Jury, in ¡November, 1861. The plaintiff sued to compel the specific performance of a contract by the defendant to purchase twelve lots of land on Fourth avenue, between 133d and 134th streets, in the Oity of ¡New York. The defendant alleged that the plaintiff’s title was defective, and he therefore refused to complete the purchase.

The cause was tried before Hr. Justice Honcbief and a Jury, on the 21st January, 1862, and resulted in a verdict for the plaintiff for $336.70. The pleadings and evidence sufficiently appear in the opinion of the Court. Argued that the verdict was against the weight of evidence; and that the action was not prosecuted in the name of the real party in interest. Insisted, that in the conflict of evidence, the verdict ought not to be disturbed.

Appeal by the defendants from a judgment against them entered on a verdict, and from an order denying their application for a new trial. This action was brought to recover from the defendants damages for injuries alleged to have been sustained by the plaintiff, David O. Mchols, an infant of the age of fifteen years, through the negligence of the defendants’ servants* while he was a passenger upon one of their cars. The damages were laid at $10,000.

This action coming on to be tried before one of the Justices of this Court and a Jury, and testimony having been given on behalf of the respective parties, and having been closed, upon motion of the defendants the complaint of the plaintiff was dismissed, with the direction that the exceptions be heard in the first instance at the General Term, and in the meantime that judgment be suspended.

Appeal by the defendants, from a judgment in favor of the plaintiffs, and from an order denying the defendants’ motion for a new trial. l liis action was brought by Willett Rowe, Samuel Hemingway, John Pearsall, Tredwell Pearsall and Sarah E. Eneas, against William M. Smith, Jesse Jones and George F. Lough, on a charter of the schooner, Jesse A. Woodhouse, to the defendants. The plaintiffs sought to recover freight and demurrage.

This was an appeal from a judgment entered in favor of the plaintiff, upon a verdict recovered on a trial before Mr. Justice Mororibf and a Jury, on the 21st May, 1862.. In this action, La Q. Eawson, David J. Cory and Squire Carlin, were originally named as defendants, but the sumrnons was served only upon the defendant, Eawson, and no proceedings were taken against the other defendants.

Oh the trial of this cause, which was had on the 16th of October, 1862, before Chief Justice Bosworth and a Jury, the Court directed a verdict for the plaintiff, and that the questions of law, arising in the case, be heard in the first instance at General Term, and that the entry of judgment be suspended in the meantime.

This was an appeal by the defendant, from a judgment in favor of the plaintiff, entered on the report of John H. White, Esq., Beferee, to whom the issues in the cause were referred. The action was brought to recover the sum of five hundred dollars, paid to the defendant by one Jared Brewster, for the plaintiff’s use.

This was an appeal from a judgment in favor of the plaintiff, on a verdict recovered on a trial before Mr. Justice Monorief, without a Jury, in April, 1862. Held: also, in the case of obligations to husband and wife jointly. (1 Rolle Ab., 342; Bar. & F., D.; Id., 349, citing Yr. Bk., 43 Ed. III, 10; Demlyn v. Browne, Moore, 887; Coppin v. —, 2 P. Wms., 496; Christ’s Hospital v. Budgin, 2 Vern., 683; Dalton v. Midland Railway Co., 20 Eng.

The action was brought to recover the value of certain cotton pledged by the plaintiff to the defendant’s testator, and alleged to have been sold by the latter without authority, and in violation of the rights of the plaiutiff. The cause came on to be tried before Mr. Justice Moeell and a Jury, on the 13th and 14th days of February, 1862.

This action was brought to recover the amount of a sealed bond for $1,000, with interest coupons- annexed, issued by the defendants, and payable to Edward Bement or his assigns. The bond was underwritten : “ For value “ received, I assign this obligation to -. Wit- “ ness my hand and seal, this 18th of June, 1851. “E. BEMENT.” (Seal.) The bond thus underwritten was purchased by the plaintiff in the market.

Appeal by both the plaintiff and the defendants from a judgment entered upon a verdict in favor of plaintiff. This action was brought against Charles A. Meigs, Augustus W. and E. B. Greenleaf, for an alleged violation of their duty in selling certain stocks. A decision upon a demurrer to the complaint is reported in 13 Abb. Pr., 467, S. O., 22 How. Pr., 340.

This case was a controversy submitted upon an agreed statement of facts, to be determined by the Court without action, pursuant to section 372 of the Code of Procedure. On or about the fifth day of April, 1862, Mrs. Charlotte Dobbin, of the City of Hew York, died in said city, leaving a will, whereby she appointed the defendants, William B. Lang and Anson Willis, her executors, and they afterward entered upon their duties as such.

Exceptions ordered to be heard at the first instance at General Term. The plaintiff’s assignor, Edwin Benton, w’as appointed a Police Clerk by the Mayor and Board of Aldermen of a the City of Hew York, on the 31st of December, 1857 and continued in office for six months. This action was to recover two months’ salary, namely, for the months of January and February, 1858.

This was an appeal by the defendant, from a judgment entered in favor of the plaintiff, upon a verdict recovered on a trial, on the 24th day of October, 1862, before Chief Justice Bosworth and a Jury. The action was upon a promissory note made by the defendant, and dated the 2d of August, 1853, payable to the Bank of Albany, .on demand.

Appeal by the plaintiff, from a judgment in his favor, and from an order denying a new trial. This was an action to recover the value of certain furni ture delivered by the plaintiff to the defendant, and alleged in the complaint to have been sold to the latter. The defendant’s original answer set up, as a counterclaim, a demand for rent against the plaintiff for about $150.

The exceptions taken on the trial of this case were directed by the Court to be heard in the first instance at the General Term..

This was an appeal from a judgment recovered by the plaintiff in a creditor’s suit against the defendants, O. B. Guthrie, Elwood Byerly and Allston Allen. The plaintiff was a judgment creditor of the defendants Byerly and Allen. His judgment was recorded against them as copartners and joint debtors, in December, 1861, for $1,467.76, and an execution was issued and returned unsatisfied.

This was an appeal from a judgment entered in favor of the defendants upon a dismissal of the complaint at the trial.

This was an appeal by the defendants from a judgment entered on the report of John M. Barbour, Esq., as Eeferee, in favor of the plaintiff. This action was brought against John Binsse and Louisa La Farge, executor and executrix of the will of John La Farge, deceased, to recover for plumbing work done by the plaintiff for the deceased in and upon an extensive building, to be used as a hotel, in the City of Hew York, while in the course of construction.

This was an appeal from a judgment in favor of the plaintiff, entered upon the report of a Referee. This action was brought for a settlement of the accounts of an alleged partnership between the parties, the plaintiff claiming a balance to be due to him on such accounting. The defendant denied the alleged partnership, and all indebtedness.

This was an appeal by the plaintiff from a judgment in favor of the defendant, entered after a Ijrial before the Court without a Jury. John Moffat, the plaintiff, brought this action against William B. Moffat and Julia C., his wife, to establish the existence of a copartnership agreement between himself and William, and for a dissolution and an account and a division of the assets, which consisted of both real and personal property.

This was an appeal by the defendants from a judgment in favor of the plaintiff, and also from an order denying a new trial, entered on the verdict of the Jury. In the year 1857, George Pegram, the plaintiff and respondent, was a produce and grain merchant in St. Louis, Missouri, and the defendants, Joseph Oarson and Hazeltine G. Vickery, were commission merchants and dealers in produce in the City of New York.

This was an appeal by the defendants from a judgment entered in favor of the plaintiffs upon a verdict.

This action was brought to recover damages for a refusal on the part of the defendant to transfer shares of its capital stock on its books to the name of the plaintiff. The action was tried before Ohief Justice Bosworth and a Jury, on the 26th and 27th days of June, 1862. The plaintiff claimed title to the stock in question, under a sale by a Receiver appointed in supplementary proceedings against one Wheaton, the former owner of and original subscriber for the stock.

This was an appeal by the plaintiff from a judgment entered on a verdict for nominal damages recovered by him on the trial of the cause.

This was an appeal from an order made on an application to set aside a sale made by a Receiver appointed in supplementary proceedings taken on a judgment recovered in this action. The Receiver was appointed in June, 1862. An order was obtained by him, by default, authorizing him to sell the defendant’s real estate, on advertising it in a daily newspaper in New York for three weeks.

This was an appeal from an order discharging an attachment against the defendant, for not appearing pursuant to an order directing him to appear and be examined touching the possession by him of property as a judgment debtor on supplementary proceedings.' No papers of any kind accompanied the attachment, except an affidavit showing the service of the first order, and another showing the. difficulty of serving an order to show cause instead of an attachment in the first place.

The plaintiffs having recovered a judgment against the defendant for $218.90, and having issued execution, which was returned unsatisfied, instituted supplementary proceedings against him.

This was an appeal from a judgment rendered in favor of the plaintiff against the defendant, upon motion, on the ground of the frivolousness of a demurrer. The complaint, which named “The Continental Bank” as the plaintiff, alleged that- the defendant made his promissory note, of which a copy was set forth and by which it appeared that it was payable “ to the order of IT.

In this action the plaintiff sought to set aside a conveyance of laud which he had made to James J. Eing, deceased, of whose estate the defendant, Zebedee Eing, was the administrator, and which was intended as a compensation for the intestate’s services and disbursements as attorney and counsel and otherwise, during a period of about thirteen years.

<p>1. An application, by a stranger to a suit, to be allowed to intervene and be made a defendant, in order that he may litigate the plaintiff’s claim and set up a claim against the original defendants adverse to, and exclusive of, that of the plaintiff, is not a matter of strict right, but rests in the discretion of the Court.</p> <p>2. Such an application should be denied where the applicant is prosecuting a separate action adapted to secure all the relief to which he claims to be entitled.</p> <p>3. So, too, after he has prosecuted such separate action to a trial upon the merits, an application made by him to have a judgment recovered in the former action set aside, on the ground of fraud and collusion, should not be granted.</p>

Justice White upon the trial of this cause before him without a Jury, that the cause stand over for further proofs. The action was brought by the plaintiff against Sylvanus Ward, executor, and the Mastérson, Smith & Sinclair Stone Dressing Company, &c., as defendants.

<p>1. Where a cause is at issue on issues of fact, and is regularly noticed for trial and placed on the calendar, and, when reached in its order, the complaint is dismissed on the failure of the plaintiff to appear, there has been a trial of the action, within the meaning of section 309 of the Code of Procedure, which authorizes the making of “ a further allowance,” after trial, in certain cases, in addition to costs.</p> <p>2. On appeal from an order granting an allowance in addition to costs,vthe Court will not review the discretion of the Judge in respect to the amount granted.</p>

Appeals from orders setting aside warrants of attachment and orders of arrest, in two actions by different plaintiffs against the same defendants. The plaintiffs in* the first action were George W. Powers, Greenleaf TL Sheridan, and Randal J. Powers. The plaintiffs in the second action were Adrian Iselin, Ernest Giraud and Henry J. Barbey. The defendants were William Graydon, James Graydon, Thomas A. McOreery, George H. Seeley and William A. Scott.

<p>1. Where it. appeared by the affidavits upon which an order of arrest was granted, that the defendant incurred the debt sued for in purchasing property from the plaintiffs, by fraudulently representing that he was a man of wealth, and the owner of a plantation and mine, and he gave his notes to the plaintiffs for the amount of the debt, and after they became due and were unpaid he falsely represented to the plaintiffs that he was partner in a firm upon whom he had authority to draw for the debt; whereupon the plaintiffs received from him, in lieu of the notes, his drafts upon his alleged firm, which the firm refused to accept: Held, that the order of arrest in this case was properly granted, and that upon the affidavits, on which a motion to set it aside was made and opposed, an order refusing to set it aside should be affirmed.</p> <p>2. Receiving the drafts under such circumstances does not preclude the plaintiff from obtaining an order of arrest.</p>

This action was brought against John Egerton and W. H. Williams,-Arnold, and John and Henry Brown, (the last two names being used to designate unknown defendants, partners of the firm of Williams, Arnold & Co.,) and Thomas W. Wasson, Levi C. Hgnson, George C. Fish, and Josiah Bumstead, upon three promissory notes, of which John Egerton was maker and the other defendants were indorsers.

<p>1. A stockholder of a corporation cannot, in an action for damages against the directors, whom he alleges have fraudulently misapplied the property of the corporation, and thereby rendered his stock valueless, recover for any damage which consists solely of his loss of the share of the assets embezzled by them.</p> <p>2. To maintain such action, he must show that he has sustained damages beyond the intrinsic depreciation of the value of the stock, by the removal of such assets. An allegation, in the complaint, that the stock had become valueless, is not sufficient.</p> <p>3. In order to recover his share of the damages for injury done to the corporation, by the embezzlement of its assets, he must make the corporation a party to the action.</p> <p>4. Where the plaintiff in such an action seeks to charge the defendants as trustees, a third person who combined with them in the wrongful acts complained of, cannot properly be made a party defendant.</p>

This was an appeal from an order denying plaintiff’s motion for an attachment against the defendant as for a contempt. The action was brought by one partner against another, for an account and settlement of the partnership affairs.

This was an appeal from an order made by the Chief Justice, directing a readjustment of the defendant’s costs as taxed by the Clerk.

<p>It was decided in this case that there is no limit to the number of term fees taxable' for terms in which a cause has been necessarily on the calendar of the Court of Appeals.</p>