Volume 10 — Daly's New York Common Pleas Reports

<p>Motion to confirm the report of a referee upon the final accounting of an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

Application by an assignee under a general assignment for the benefit of ci editors for payment to him of moneys of the assigned estate in the hands of his attorney. Foley & Co. made an assignment for the benefit of their creditors to Edward True. Part of the assets assigned were claims against debtors of Foley & Co., which the assignee employed his attorney, David Leventritt, Esq., to collect.

Application by an assignee under a general assignment for the benefit of creditors for leave to compromise a claim belonging to the estate. The facts are stated in the opinion.

Application by an assignee under a general assignment for the benefit of creditors for the discharge of himself and the sureties on 1ns bond.

Application by an assignee under a general assignment for the benefit of creditors for the discharge of himself and the .sureties on his bond from liability to creditors who had •executed a. general release.

<p>An allowance may be made to an assignee for benefit of creditors, for services rendered him by counsel upon his accounting; but allowances will not be made to counsel who appear for creditors.</p>

<p>Application for a decree upon the final accounting of an assignee under a general assignment for the benefit of creditors.</p>

<p>Upon an application for a discharge of an assignee and his sureties it must appear that creditors have been advertised for, as provided by section 4 of the Assignment Act, and that a citation to attend the accounting has been issued and served, as provided by sections 11 or 12, and that an accounting has been had, as provided by section 20.</p>

Application by an assignee under a general assignment for the benefit of creditors for a reference of his accounts, and for the discharge thereupon of himself and the sureties on his bond.

Application to confirm, the report of a referee upon the accounting of an assignee under a general assignment for the benefit of creditors.

Application by an assignee under a general assignment for the benefit of creditors for his discharge. The facts are stated in the opinion.

Application by an assignor and assignee under a general assignment for the benefit of creditors for the discharge of the assignee and the sureties on his bond and the re-assignment by him to the assignor of any assets of the assigned estate remaining in his hands.

<p>Application by a creditor of assignors under a general assignment for benefit of creditors to vacate an order vacating a previous order for the examination of a witness and the production of books and papers of the assignors.</p> <p>Upon the petition of the National Park Bank, a creditor of Bryce & Smith;, who had made an assignment to Lewis for benefit of creditors on July 23d, 1878, an order was made on December 13th, 1878, for the examination as a witness of Alfred D. Griswold, an accountant employed by the assignee, which directed the assignee to produce the books of account, papers, &c., of the assignors. On December 24th, 1878, the order of December 13th was vacated upon an application ex parte by the assignee ; and on December 27th, 1878, upon application of the National Park' Bank, an order was granted requiring the assignee to show cause why the order of December 24th should not be vacated and the examination proceed as originally ordered. The facts appearing on the return of this order to show cause are stated in the opinion.</p>

Motion to remove a receiver and vacate an injunction. The action was brought to set aside a general assignment for the benefit of creditors made by the defendants Josiah F. Fowle and William A. Brown, Jr., to the defendant John H. Folk. Prior to January 2d, 1879, a limited co-partnership existed under the firm name of ■“ J. F. Fowle,” of which the defendant Josiah F. Fowle was the general, and the defendant William A. Brown, Jr., was the special partner.

Application to confirm the report of a referee upon the final accounting of an assignee under a general assignment for the benefit of creditors. The accounting was ordered upon petition of Whitlock & Anderson, creditors of the assignor. The facts are stated in the opinion.

<p>An assignee for the benefit of creditors who uses the funds of the assigned estate in the purchase of claims against the assignors, for less than the estate would have yielded to creditors on an honest administration, is not entitled to the profits derived from such purchase ; creditors influenced by him so to transfer their claims should be allowed to present claims for the balance due upon their ratable proportions of the estate ; and no commissions or expenses should he allowed to the assignee from the time that he began so to misuse his position.</p>

<p>Application to compel an accounting by an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinions.</p>

<p>Motion for an attachment against an assignee under a general assignment for the benefit of creditors, for his failure to pay over to the creditors moneys directed, by the final decree upon his accounting, to be paid by him to them.</p> <p>The decree upon the final accounting of the assignee charged him with a specified sum, the total amount of the proceeds of the assigned estate and interest, and, after allowing him certain sums for expenses, &c., directed the remainder thereof, the sum of §7,131.08, to be distributed among the creditors named in the decree, and payment thereof to those creditors or to their attorneys was ordered to be made forthwith.</p> <p>Upon service on the assignee of a copy of the decree and a demand in writing of the sums due certain of the creditors, made by their attorney, the assignee answered, “ that he had ho money of the assigned estate referred to in said decree, and could not pay the money required to be paid by said decree, or comply with its termswhereupon the creditors made this motion for an attachment against him.</p> <p>The affidavit of the assignee, in opposition to the motion, alleged that the funds of the estate were collected and retained by the firm of George W. Kidd & Co., of which he was a member, and that George W. Kidd, also a member of said firm, was one of the sureties on his hond as assignee, and was amply responsible ; that the firm had been dissolved, and that he had commenced an action against his former copartners to recover the trust funds, which was still pending. Parts of these allegations were controverted by affidavits on behalf of the creditors.</p>

Application by an assignee under a general assignment for the benefit of creditors for leave to accept an offer of compromise by creditors of the assignor. The facts are stated in the opinion.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors, after his removal. The facts are stated in the opinion.

<p>Where proceedings have been taken in the Supreme Court to compel an assignee for the benefit of creditors to execute his trust and distribute the funds in his hands, this court will make no order for that purpose.</p>

<p>Application by creditors of the assignors in a general assignment for the benefit of creditors, for the payment to them of the proceeds of goods consigned by them to the assignors.</p> <p>Tiie facts are stated in the opinion.</p>

Application to confirm the report of a referee upon a trial of a disputed claim under a general assignment for the benefit of creditors. The claim was made by Lawrence Gr. Eisley, as the surety of Eisley & Burris, the assignors, upon a lease, for the payment by Mm, subsequent to the assignment, of rent becoming due on the lease for two quarters, and of a bonus for the surrender and cancellation of the lease. The claim was disputed by the assignee, and was referred.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

Application to confirm the report of a referee upon an accounting by a retiring assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

Upon the application at Special Term it appeared that no proof of claim had been presented to the assignee by certain persons named as creditors in the schedules of the assignors, and that the claim had not been paid by the assignee. For this reason the application was denied, and the assignee was directed to pay all creditors whose names appeared on the schedules, whether they had presented claims or not. From the order entered on this decision this appeal was taken.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

Application to confirm the report of a referee .upon a disputed claim under a general assignment for the benefit of creditors. The claim was made by John S. Hulin, as the maker of certain promissory notes alleged to have been obtained from him by the assignor by false representations, and transferred to preferred creditors in consideration of their release of their claims.

Teial by the court of an action for foreclosure of a mechanic’s lien. The lien was filed by the plaintiff, Robert McMurray, for work done by him upon buildings owned by the defendant, Robert Hutcheson, under a subcontract with John Jennings, the principal contractor, who had previously made a general assignment for the benefit of his creditors to William E. Price, without completing the work under his contract. Other facts are stated in the opinion.

<p>The duty of an assignee for the benefit of creditors is to uphold his trust, npt to impeach it; he cannot object to the payment of a creditor preferred in the assignment, on the ground that the preference is fraudulent.</p> <p>Upon an application by a creditor for a partial accounting by an assignee, and for the payment of the whole or part of such creditor’s claim, it is discretionary with the court to order such payment or not.</p>

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion. x

The application was made by Joseph Reiss, a creditor of the assignor. A previous application by him had been denied, with costs, which remained unpaid.

Application by a creditor preferred in a general assignment for the benefit of creditors for payment of the preferred claim. The application was made by Charles Hauselt upon a preference in the assignment made by Neil McCallum & Co., copartners, for the benefit of their creditors. The facts are stated in the opinion.

<p>Where a reference of a disputed claim or matter under section 36 of the Assignment Act (L. 1877, c. 446 ; L. 1878, c. 818) is ordered by the court, the proceeding before the referee is a trial of the Issues involved in the dispute, and an order of reference “to hear and determine ” is proper. The decision of the referee can only be reviewed by the general term of this court.</p> <p>Costs in such a case are allowed to the successful party as in an action, and must be taxed. An extra allowance, as in an action, may also be awarded. Referee’s fees may be allowed at the rate of six dollars per day.</p>

<p>After the filing of an assignment for the benefit of creditors, nearly all the assignor’s creditors executed an instrument empowering a committee of themselves to control and manage, compound and release their claims, ■ and consenting that the business of the assignor might be continued by . the committee themselves, or through the assignee or others. The business was carried on for a time by the assignee, and a dividend was paid by him to the creditors out of the proceeds. Subsequently an agreement was entered into between the committee, on behalf of the creditors represented by them, and the assignor, fora composition, upon, the payment by the assignor to those creditors of a specified percentage of the portion of their claims remaining unpaid. The agreement also contained provisions for the transfer by the assignee of the assigned estate, upon certain conditions, to the assignor, and for the continuance by the latter, under certain restrictions, of his former business, for the purpose of obtaining thereby the means of paying the amount of the composition. The estate was not, however, so transferred to the assignor, and the business was continued by the assignee, with the assistance of the assignor, and dividends were paid to the creditors out of the proceeds ; but before the dividends so paid had reached the amount of the composition, and before the expiration of its terms, the assignor died. Held, that his personal representatives, upon paying to the creditors the amount required, in addition to the dividends already paid, to complete the payment of the composition, were entitled to be subrogated to the rights of the creditors It was no objection to this, under the circumstances, that such dividends had been paid by the assignee, instead of by the assignor, they having been in fact paid out of the fund contemplated by the agreement.</p>

<p>Appeal from a judgment of this court setting aside a general assignment for the benefit of creditors as fraudulent.</p> <p>The defendants Healy and Conway were partners in trade. In December, 1878, they made an assignment for the benefit of creditors, to the defendant Cunningham, who was a preferred creditor for $1,604.50 made up of two promissory notes, and owing to him by the said assignors. It appeared upon the trial, that both these notes were dated the same day, to ■ the same payee, but the smaller was signed by the defendant Bichard Healy, individually. The plaintiffs were judgment creditors of the partnership, and brought this action to set aside the assignment as fraudulent, and a decree to that effect was given by the court below. The defendants appealed.</p>

<p>Under an assignment, by members of an insolvent copartnership, of their copartnership and individual estate, for the benefit of creditors, if the individual estate of one of the assignors is more than sufficient to pay his individual indebtedness, the claims of his individual creditors are to be paid in full, with interest to the date of distribution.</p>

<p>Under section 21 of the General Assignment Act an examination of the hooks of an assignor can only he ordered in aid of the assignment.</p>

Application to overrule exceptions to the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

<p>Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

Application to confirm the report of a referee upon an accounting by an assignee, and upon disputed claims under a general assignment for the benefit of creditors.

<p>That an assignee for the benefit of creditors has disposed of the assigned estate in bulk is not ground for his removal, where it is a fair question whether the price received is not a good one. All questions arising as to the propriety of the sale may he inquired into upon the accounting of the assignee.</p>

<p>Motion to vacate an order for the examination of one of the assignors in a general assignment for the benefit- of creditors.</p> <p>The copartnership of Swezey & Dart, composed of John A. Swezey and Joseph Dart, being insolvent, a general assignment for the benefit of creditors, executed by Joseph Dart alone, assigning the copartnership property and his individual property not exempt from attachment, was filed, in which -the claim of Buckingham & Paulson, copartners, and creditors of Swezey & Dart, was preferred. Upon their petition, an order was granted requiring Dart to appear and be examined in order to determine the interest of Swezey & Dart, and of their assignee, in a certain trade-mark, which, the petition alleged, Dart claimed and was about to use. Dart applied to vacate the order for his examination, and, should his application be denied., for a stay of proceedings pending an appeal from the order denying his motion.</p>

The assignment was made by Jacob Goldsmith and Lewis Goldsmith, comprising the firm of J. Goldsmith & Co., to Leopold Wertheimer, on November 1st, 1881.

<p>A petition by a corporation for the examination of witnesses, under section 21 of the General Assignment Act, should be signed and verified by an officer of the corporation.</p> <p>Such an examination will be allowed only where its object is to promote the administration of the assigned estate.</p> <p>Sections 20 and 21 of the act considered.</p> <p>A preferred debt must be paid by an assignee for the benefit of creditors though it be usurious.</p> <p>Semble, that the assignee may plead usury in answer to a demand for the payment of a debt not preferred.</p> <p>Query, whether a creditor can compel an assignee to plead usury.</p>

In April, 1830, a motion was made by Erastus H. Benn upon a petition, for an order to compel Harvey T. Cleveland, as assignee of Gustav Radtke and Albert Luscher, to pay the sum of $250, which motion was denied. An appeal having been taken to the General Term of this court, the said order was reversed with costs, and an order was made directing the said Harvey T. Cleveland as such assignee to pay to Erastus II.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

<p>Application to confirm a report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

Application by creditors of the assignors in a general assignment for the benefit of creditors for the removal of the assignee, an examination of the books of the assignors, and an inspection of a stock of goods, part of the assigned estate. The facts are stated in the opinion.

<p>A creditor who receives a percentage of his claim from his debtor’s assignee for benefit of creditors, and in consideration thereof executes an assignment of the balance to such assignee, which assignment is taken by the latter for the benefit of the debtor, will not be permitted to avoid his assignment by showing that he executed it under the impression that it was a mere receipt on account, he not being able to read the paper owing to defective vision and the want of glasses, there being no fraud nor false representations on the part of the assignor or the assignee, nor any act done to induce him to sign, and it appearing that similar assignments were made and percentages received by other creditors under an arrangement with the assignor after an attempted composition at that rate with all the creditors had failed, the original proposed composition deed having however been signed by the creditor in question, with others.</p> <p>A court of equity will relieve parties from a mutual mistake of fact; but not when ignorance or mistake is confined to one party, and no unconscientious advantage is taken by fraud or concealment by the other. Even if the creditor had the right to avoid his assignment of the balance of his claim, he would have to refund the sum received.</p> <p>The principles that govern transactions between trustees and cestuis que trust do not apply to the transaction, because the assignee did not secure to himself any benefit by the assignment of the claim, but took it for the sole benefit of the assignor. As, however, there was no definite finding of fact to that effect, the assignee was required to file a stipulation that such assignment was taken in behoof of and for the assignor and his estate.</p> <p>Where a party who has filed exceptions to a referee’s report afterwards moves to confirm it, he must be held to support it as correct in fact and conclusion.</p>

<p>Application for a citation to an assignee for the benefit of creditors to account.</p> <p>The application was made by the assignor and a creditor.</p> <p>The facts are stated in the opinion.</p>

<p>Application for the removal of an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

<p>Application for the removal of an assignee under a general assignment for the benefit of creditors.</p> <p>O</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages for the wrongful taking by the defendants of personal property claimed by the plaintiff as assignee under a general assignment for the benefit of creditors. To the assignment, which was made to the plaintiff by Clinton II.

The facts are stated in the following opinion of Hon. J. S. Bosworttt, the referee.

The petition of the debtor showed that he was imprisoned under two exeentions against his person issued upon judgments recovered by one Joseph Morris in two actions against William R. Mowe, Lewis H. Cole, and the petitioner, claiming damages for fraudulent purchases of goods from the plaintiff by the defendants as copartners under the firm name of Mowe, Cole & Benson.

' The plaintiff recovered a judgment against the defendant on the 18th February, 1880, and execution was immediately issued to the sheriff of the City and County of New York, where the defendant resided.

The action was brought upon an undertaking given to obtain the return, to the defendants in a replevin suit, of the property replevied. The replevin suit was commenced by Simon Auerbach, the plaintiff in this action, against Samuel M. Jacoby and Simon Batt, composing the firm of Batt & Jacoby, who had made a general assignment for the benefit of creditors, and Elias Goodman, their assignee.

<p>Appeal from a judgment of this court entered upon the verdict of a jury rendered by direction of the court.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court entered on the verdict of a jury.</p> <p>The action was brought to recover for an alleged wrongful taking and detention of goods of the plaintiff. The defendant, as sheriff of the city and county of New York, proceeding under an attachment against the property of one Henry M. Franklin, had levied upon the goods in question, which, with other property, had been in the possession of Franklin. ■Other facts are stated in the opinion.</p> <p>At the trial, the jury found for the plaintiff, and judgment in favor of the plaintiff was entered on the verdict. From the judgment the defendant appealed to the general term of the Marine Court, which affirmed the judgment; and from this decision the defendant appealed to this court.</p>

<p>An action may be maintained by a married woman, even in a court having no equity powers, upon a cause of action transferred to her directly by her husband.</p> <p>Part of the subject matter of a conveyance was described as “ all book accounts, bills receivable, judgments, claims and demands whatsoever, due or belonging to ” the grantor. Held, that this included a claim on which a suit by the grantor was pending, and which was expected to ripen into a judgment.</p> <p>Under a stipulation, unqualified in its language, that the testimony of a witness upon a former trial may be read in evidence, no objection to the admissibility of such testimony can properly be entertained.</p> <p>After the dismissal, by the general term of the Marine Court of the city of New York, of an appeal by defendants from an order continuing an action in the name of an assignee of the plaintiff, it is erroneous for the general term of that court, on a subsequent appeal by the defendants from a judgment in the action, to reverse such order, and to reverse the judgment on account of supposed error in making that order; although, it seems, on an appeal to the Court of Common Pleas from the judgment, a review of the order which dismissed the appeal might have been had.</p>

Exceptions taken by the plaintiff at a trial term of this court ordered to be heard in the first instance at the general term. The facts are stated in the opinion.

The action was brought by John Matthews, George Matthews, and Elizabeth Matthews, to recover from the defendants William Snifien and George SnifEen, the possession of certain jiersonal property claimed by the plaintiffs to have been conveyed to them by Leopold Freund by a mortgage made by him to the firm of John Matthews. The facts are stated in the opinion. Judgment was rendered in favor of the defendants; and from the judgment the plaintiffs appealed to this court.

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York, affirming a judgment of that court entered upon the verdict of a jury.</p> <p>The action was brought to recover damages for the alleged unlawful taking of a piano-forte, in February, 1875. The defense was that the piano was obtained in August, 1873, from defendants, by fraud and conspiracy on the part of John L. Rough, Charles Sacia and Henry T. Bassford, to which plaintiff and her husband were parties.</p> <p>The piano was sold by defendants to Bough, in August, 1873, he giving his note at four months for the price. The note was not paid, and defendants recovered judgment thereon against Bough, January 30th, 1874.</p> <p>In February, 1875, defendants took the piano from plaintiff’s possession in replevin proceedings against her husband’s father, Charles Sacia, they claiming then to have discovered that the piano had been obtained originally from them in pursuance of fraud and conspiracy. For such taking, plaintiff (to whom the piano had been conveyed by her father-in-law, who got it by sale from Bough), brought this action. Defendants recovered a verdict, upon which judgment was entered in their favor. From the judgment the plaintiff appealed to the general term of the Marine Court, which affirmed the judgment; and from this decision the plaintiff appealed to this court.</p> <p>Upon the appeal the plaintiff claimed that the judgment against her should be reversed, because : I. The alleged fraud and conspiracy were not proved; II. Because the recovery by defendants of the judgment on the note of Bough for the price was an election to affirm the sale to the latter, and a bar to any right to the return of the piano; and III. That the testimony of Bough, the' only witness to prove the alleged fraud and conspiracy, was inadmissible. Several exceptions were taken by plaintiff in the course of the trial, which she claimed required a reversal.</p>

Between May 12th, 1879, and June 5th, 1879, the firm of Nathan Mayer & Co. made, it was claimed, five different purchases of goods from plaintiff, and the bills made out by plaintiff were all substantially as follows, except as to the goods and amounts: “ Claims for damages or errors must he made on receipt of goods. New York, Hay 12th, 1879. Mr. Nathan Mayer c& Qo. Bought of James Talcott, Commission Merchant, 108 and 110 Franklin street. 5-30.

<p>Appeal from a judgment of this court entered upon the report of a referee.</p> <p>The facts are stated in the opinions.</p>

<p>In an action for the recovery of the possession of personal property, brought before the provisions of the Code of Civil Procedure relating to such actions took effect, the complaint alleged a wrongful detention of the goods, and the answer was simply a general denial. Upon the trial, it appeared that the goods had been furnished by the plaintiff to the defendants under a contract for their manufacture; and the complaint was dismissed, on the ground that there was no sufficient proof of a rejection of the goods by the defendants or a demand for them by the plaintiff. Held, that as, under the then existing law, the issues raised by the answer entitled the defendant to claim a return of the property, proof of a demand by the plaintiff was unnecessary; and that there was sufficient evidence to be submitted to the jury upon the question whether the goods were rejected by the defendants, which rejection, taken in connection with their defense, would render a formal demand by the plaintiff unnecessary.</p>

Exceptions taken at a trial term of this court ordered to be heard in the first instance at the general term. The facts are stated in the opinion.

<p>Appeal from a judgment of this court entered upon the dismissal of a complaint.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages sustained by an alleged wrongful dismissal fiom employment of a clerk. The evidence showed that on the 31st of December, 1879, the plaintiff was orally engaged to serve for one year, which year should terminate on the 31st of December, 1880.

The action was brought to recover damages for the arrest and imprisonment of the plaintiff. A previous action had been brought by the defendants, Edward M. Townsend and Henry C. Yale, against Isaac Hebenzahl, the plaintiff in this action and Montague S. Marks, in which an order of arrest against Hebenzahl and Marks was granted and they were arrested and held to bail.

<p>At the trial of an action to recover damages for personal injuries to a hoy four years of age, by being ran over in a public street, by defendants’ wagon, the plaintiff requested the court to charge that if the jury found that the plaintiff was non sui juris and escaped into the street without negligence on the part of the parents or custodians, the plaintiff could recover, if they believed the defendant was guilty of negligence. Held, that as there was conflicting evidence as to whether the plaintiff escaped into the street or was left there by his custodian at the time, a refusal to so charge was not erroneous.</p>

<p>Appeal from a judgment of this court entered upon the dismissal of a complaint.</p> <p>The facts are stated in the opinion.</p>

The action was brought in October, 1879, to recover from the defendant, rent for the months of May, June, July, August and September, 1879, of certain premises situated at New Brighton, Staten Island, which he alleged that he had rented to the defendant for a period of one year from the 1st of May, 1879, at the yearly rent of $1,200.

<p>Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages for the loss of the plaintiff’s overcoat at the defendant’s hotel. The plaintiff’s uncle was a guest at the Park Avenue Hotel, corner of 32d Street and 4th Avenue, in the City of New York. The plaintiff lived at No. 31 West 20th Street, New York. He was invited by his uncle to dine with him and his family at the hotel and go afterwards to the Charity Ball.

The action was brought to recover commissions claimed by the plaintiff, as broker, for procuring tenants for Ho. 339 West 34th Street, Hew York. The justice dismissed the complaint and rendered judgment in favor of the defendant. From the judgment the plaintiff appealed to this court.

The action was brought to recover the amount of three promissory notes, made by the defendant Cochrane to the order of the plaintiffs, and indorsed by the defendant Walker. Judgment was rendered in favor of the plaintiffs against both the defendants. From the judgment the defendant Walker appealed to this court.

The action was brought to recover rent for one month, from April 26th to May 26th, 1881, for premises at No. 252 Broadway, in the city of New York. The facts were, that the defendant, who was receiver of several corporations, occupied the premises in question as a tenant of the Trinity Church corporation until May 1st, 1880, when he removed to Albany, leaving in the premises four large iron safes and some office furniture.

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

<p>To authorize a justice of a district court in the City of New York to dismiss a complaint on the ground that, one of the defendants being a nonresident, the action should have been commenced by a short summons instead of the ordinary summons, proof of the fact of such non-residence is requisite; and if such proof is not given until after answering, the objection is waived.</p>

Exceptions taken by the plaintiff at a trial term of this court, ordered to be heard, in the first instance, at the general term. The plaintiff was appointed a clerk in the Fire Department, June, 1874, and employed in the Bureau of the Fire Marshal. He continued in the position until December 31st, 1875, when he was discharged without being informed of the cause of removal, or called upon for any explanation.

The action was brought upon a policy of insurance issued by the defendant to Thomas Pitt, the plaintiff’s husband, and a certificate of insurance issued by the defendant to the plaintiff herself, to recover the amount of the insurance thereby effected on the tug Corinne, as upon á total loss.

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover a balance claimed to be due for poultry sold by the plaintiffs to the defendant. The defense was payment and satisfaction. The facts disclosed were that defendant owed plaintiffs $332.48 for poultry. Charles J. Schmitt, one- of the plaintiffs, called on defendant to collect the bill.

<p>Appeal from a judgment of this court entered on a verdict of a jury rendered by direction of the court.</p> <p>The facts are stated in the opinion.</p>

Exceptions taken at a trial term of this court, ordered to be heard, in the first instance, at the general term. The action was brought for the recovery of $7,500 for services rendered by the plaintiff as attorney and counsel, under an agreement with Samuel Wood, deceased, in an action pending in the Supreme Court, wherein Abraham Hewlett was plaintiff and Samuel Wood, Samuel A. Wood, and others were defendants. On January 7th, 1878, Hr.

<p>An old and unoccupied wooden house in the City of New York was attacked in the day time on the day of a general election by boys of from eight to seventeen years of age, who, numbering at first only three or four, began tearing down and carrying away the stoop; and, increasing in number to more than fifty, continued for an hour or longer to demolish the building, until it was substantially wrecked, so that the owner was subsequently compelled to take it down. They dispersed at the coming of a policeman, and there was no indication of any intent to resist opposition by the public authorities or private citizens, nor was anything done “to the terror of the people,” the injury appearing to have been accomplished not with any common purpose, but rather to gratify individual propensity. Held, that the city was not liable for the damages in an action by the owner, under L. 1855, c. 438, giving such a right of action “ whenever any building,” &c., “shall be destroyed or injured in consequence of any molí or riot.”</p>

This is an action for divorce. At a special term of this court, held in June, 1881, an order was granted directing payment of temporary alimony and a counsel fee by the plaintiff to the defendant or her attorneys. Such order not having been obeyed, after service and demand, a warrant of commitment was issued upon application, June 21st, 1881. This warrant was vacated upon motion, by an order of the court dated July 21st, 1881. From this order the defendant appealed.

Case submitted without action. The submission was as follows : “ Benjamin B. Johnston claims to recover of Augustus Merritt, three hundred dollars, and Augustus Merritt resists said action. “ The following are the facts upon which the said controversy depends: “ Daniel Berrien, Theodore Berrien and Charles Reimer, composing the firm of D. Berrien & Co., on March 31th, 1880, hired and rented from D. Willis James, the building and premises known as No. 231 Pearl Street, in the…

The action was brought against defendant as a stockholder of the “ Manhattan Sewing Machine Company,” to recover the amount of a promissory note of the company for $1,433.85 at six months, dated August 7th, 1872, payable to the Shaw & Lippencott Manufacturing Co. or order, which fell due February 10th, 1873.

Parkinson, directing the sheriff to pay to her the surplus in his hands arising from a sale of certain premises under an execution in this action against the property of the defendant. Mrs. Parkinson, to whom the surplus was awarded, was the grantee of the premises in question from the judgment debtor by deed recorded March 30th, 1881. On the sale under the execution in this action, which took place June 1st, 1881, she bought the premises, paying $702 to the sheriff.

<p>A mortgage oí chattels, which is not accompanied by immediate delivery and not followed by actual and continued change of possession of the things mortgaged, if not filed as required by L. 1833, c. 279, is void, as against the simple contract creditors of the mortgagor, as well as against judgment creditors.</p> <p>An action to set aside such a mortgage may be maintained by a receiver of the property of the mortgagor appointed in proceedings supplementary to execution against him under Code of Civ. Pro. c. 17, tit. 12, art. 2, notwithstanding the mortgage was duly filed before the appointment of the receiver, if it was not so filed before the service upon the mortgagor of the order requiring him to appear and be examined as a judgment debtor in the proceeding in which the receiver was appointed; and even though the mortgage was executed and delivered before the enactment of the provisions oí the Code referred to, by which the title of such a receiver is made to relate back to the time of the service of such order.</p>

<p>By an act of the legislature of 1871 (L. 1871, c. 269), the City and County of New York was required to levy and collect, in that and in each and every following year, a tax of a specified amount, and pay the same over to the plaintiff, a charitable corporation, to be applied to its purposes and objects. Held,, that the amendment of 1874 to the constitution of the state (art. 8, § 10), which prohibited giving or loaning the credit or money of the state to or in aid of any association, corporation or private undertaking, with some exceptions not including the plaintiff, annulled the act óf 1871, and that, even although the city thereafter con. tinned, without authority, to levy and collect the tax, the plaintiff could not maintain an action against the city to recover the amount.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York, and frond an order of said general term vacating an order of that court which directed a verdict and the entry of judgment thereon, and ordering the entry of the judgment also appealed from.</p> <p>The facts are stated in the opinion.</p>

<p>A complaint contained two causes oí action, the first for false imprisonment and the second for malicious prosecution, both founded upon the same facts. At the trial, a motion to dismiss the second cause of action was denied, and both were submitted to the jury, who found for the plaintiff on the first and for the defendant on the second. Held, that there was no ground for complaint by the defendant for the denial of the motion to dismiss.</p> <p>Money was obtained from the defendant, an officer of a company, by a person representing that the works of the company had been destroyed by an explosion, and that he had been sent as a messenger to defendant by the manager at the works, who bad neglected to supply him with money for his expenses. Afterwards, the defendant, having learned that no such explosion had occurred, and being told by the manager that the description of the pretended messenger was exactly the plaintiff’s, procured the arrest of the plaintiff therefor, without a warrant, by a police officer ; but after the plaintiff had been imprisoned three days, doubt arising as to his identity with the person who obtained the money, the defendant consented that he be discharged, and he was discharged accordingly. Held, that to an action for false imprisonment for suck arrest of the yamtiff, reasonable grounds or probable canse therefor was not a defense; as the oflense for which plaintiff was arrested was the obtaining of property by false pretenses, which is not a felony either at common law or by statute.</p> <p>The jury found a verdict for plaintiff for $1,500 damages for such false imprisonment. Held, that, under the circumstances of the case, this amount was not so excessive as to require a reversal of the judgment.</p>

<p>Section 1678 of the Code of Civil Procedure, regulating foreclosure sales, prescribes only a rule of proceeding, to render available the judgment of foreclosure; and therefore the amendment of 1881 (L. 1881, c. 682) allowing two or more buildings situated on the same city lot to be sold together, is effectual, pursuant to its provisions, to render valid sales, previously made which would be lawful according to its terms.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of Hew York affirming a judgment of that court entered upon a verdict rendered by direction of the court.</p> <p>The facts are stated in the opinion.</p>

In September, 1879, the plaintiff in this action was in the employ of the defendant at Ho. 8 College Place, and was at the time about 15 years of age. Several lofts of the building seem to have been occupied by the defendant.

<p>Appeal from a judgment, of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury, upon a stipulation to reduce the amount of the verdict.</p> <p>At some date in or prior to August, 1878, the defendant employed Harnett, a real estate broker, to procure a loan of $35,000 for him at six per cent, interest per annum to be secured upon certain real estate in the City of New York. In that month Earle, a clerk for Harnett, applied to the plaintiff’s assignor, George H. Burling, to obtain the loan. He succeeded in doing so, and informed the defendant Sep- - tember 4th, 1878. On that date the defendant gave to plaintiff’s assignor a writing in these words:</p> <p>“Brooklyn, Sept. 5th, 1878.</p> <p>“Mr. George H. Burling.</p> <p>“ Dear Sir:</p> <p>“ I am ready to accept your loan on the 5th inst. at one p. h. provided the same has not been taken elsewhere. The commission to be four hundred dollars, and also provided the ■lawyer’s fees can be agreed upon.</p> <p>“Very truly yours,</p> <p>“ 0. Godfrey Gunther.”</p> <p>From the evidence this was written September 4th, instead of the 5th, as dated.</p> <p>The defendant afterwards did nothing. On September 6th, the parties who had accepted the loan withdrew their acceptance, because the papers were not delivered as promised on the 5th, and so notified George H. Burling. This action was brought by Burling’s assignee to recover four hundred dollars commissions. There was a contention of fact, upon the trial, over the question of an original employment of George H. Burling by the defendant to procure the loan. The trial in the Marine Court resulted in a verdict for four hundred dollars in plaintiff’s favor. The defendant’s motion for a new trial upon the minutes was denied, and an appeal taken from the order and judgment entered upon the verdict to the general term of the Marine Court, where the judgment was affirmed upon the plaintiff stipulating to reduce the recovery from four hundred to one hundred and seventy-five dollars. From this decision the defendant appealed to this court.</p>

<p>An instrument in writing, made and delivered by the defendant to the plaintiff, by which the former promises to pay to the order of the latter “seven dollars monthly in the following manner, to wit, seven dollars five days after date, and seven dollars on the first day of each succeeding month for twelve months from date, for the privilege of advertising purposes ” of a nature and extent particularly specified, “for the term of one year from date,” is a promissory note; and may therefore be pleaded, in an action upon it, as “an instrument for the payment of money only” within section 534 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment of this court entered upon the report of a referee, and from an order denying a motion to vacate the report or to refer it back to the referee.</p> <p>The facts are stated in the opinion.</p>

<p>Where an infant, after a purchase of property by him, claiming the right to rescind the purchase on the ground of his infancy, restores the property to the vendor, and it is accepted by the latter, the infant may recover back money paid by him to the vendor upon the purchase.</p>

<p>• Appeal from an interlocutory judgment of this court overruling a demurrer to a complaint.</p> <p>The facts are stated in the opinion.</p>

<p>C., having contracted to furnish and set the brown stone work upon eight houses for the defendant, an arrangement was made between them and the plaintiff, a dealer in brown stone, that the plaintiff should furnish the stone required for the houses, on 0. giving him an order for the price, accepted by the defendant. Such an order, requesting the defendant to pay to the plaintiff or order “the sum of $40ti when the stoops of the said eight houses are set, and the sum of $375 when the brown stone work of the said houses is completed, and charge the same to me, ” was signed by C. and accepted by the defendant and delivered to the plaintiff, who thereupon furnished the stone. In an action, by plaintiff upon the order for the sums above mentioned, it appeared that the stoops were, in fact, set, and the brown stone work completed, by other persons employed by the defendant, after 0. had abandoned the contract. Held, that the plaintiff was not entitled to recover those sums from the defendant.</p>

<p>Appeal from a judgment of this court entered upon the verdict of a jury.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury and an order of that court denying a motion for a new trial.</p> <p>In September, 1877, the defendant being the owner of four lots upon the north side of 126th Street, and west of the 7th Avenue, made a building contract with one McGown, by which McGown was to erect eight houses upon said lots, and the defendant was to loan to McGown during the course of the construction of said houses certain sums of money, and upon the completion of the houses the lots were to be conveyed to McGown and McGown was to execute mortgages back. The contract between the defendant and McGown contained certain specifications as to the buildings to be erected, and as to the advances which were to be made by the defendant to McGown as the buildings progressed—the number of payments being five; the third payment being due when all the plumbing and gas-fitting work was completed and the water and gas connections made so as to supply the same where required; the fourth payment being due when the painting inside and outside of each and every house was completely finished ; and the fifth and final payment being when the buildings were completely finished in all respects. And it was further provided that these payments were not to be made while there were any mechanics’ liens filed, and if the work was unreasonably delayed by McGown, the defendant had the right to terminate the contract and foreclose McGown’s interest by a sale at public auction, which sale was to be an absolute bar of all claims upon the part of McGown. The houses were to be completed to the satisfaction of the defendant and ready for occupation by the 1st of April, 1878. McGown commenced work upon the contract on the 19th of November, 1877. Before any payment became due under the contract to him he assigned the contract to one William Archer, by and with the consent of the defendant. William Archer thereupon undertook to complete the McGown contract with some modification as to the character of the work, which was agreed upon between Archer and the defendant. The plaintiffs in this action, being about to supply certain plumbing work and materials for said houses, applied to the defendant to know if he would accept the orders in suit of Archer, and upon receiving an acceptance of said orders .they made their contract with Archer and completed the work according to the modified terms agreed upon between Archer and the defendant. The orders were as follows :—</p> <p>“ New York, July 5th, 1878.</p> <p>“ Thos. J. McCahill, Esq.: Please pay to Ellison & Todd two hundred and fifty dollars out of the fourth payment under the contract of Sept. 18th, 1877, between yourself and Jas. McGown, when that payment is reached; said amount being on account of plumbing work and material furnished on 126th Street houses.</p> <p>“ William Archer.”</p> <p>Indorsed as follows :—</p> <p>“ Accepted, to be paid only when fourth payment is reached, as per contract between McGown and myself, and not otherwise.</p> <p>Thos. J. McCahill.”</p> <p>“ July 10th, 1878.</p> <p>“ New York, July 5th, 1878.</p> <p>- “ Thos. J. McCahill, Esq.: Please pay to Ellisou & Todd five hundred ($500) dollars out of fifth payment, under the agreement of Sept. 18th, 1877, between yourself and Jas. McGown, when that payment is reached, said amount being on account and in full for plumbing work and materials furnished on 126th Street houses.</p> <p>“ William Archer.”</p> <p>Indorsed as follows :—</p> <p>“ Accepted, to be paid only when fifth payment is reached, as per contract between McGown and myself, and not otherwise.</p> <p>“ Thos. J. McCahill.”</p> <p>“ July 10th, 1878.</p> <p>The plaintiffs, upon noticing the qualified acceptance of the defendant, asked him what the McGown contract was, and defendant replied, “ Why, that is only a name; we drew up an agreement, but he has nothing to do with it now; it is only a name.” And lie further said that he had sufficient money under the McGown contract to pay the orders.</p> <p>In August, and after the completion of the plumbing work, the work upon the buildings was suspended by Archer, and the foreclosure of a mortgage upon the premises was commenced. The buildings were sold and were bought in by the defendant, and the mechanics who had filed liens, which were all for work done before the third payment became due, were paid the sum of upwards of $1,500, upon those liens.</p> <p>Afterwards a new contract was entered into between the defendant and Van Alstyne & Smith, and the buildings were completed by Van Alstyne & Smith substantially according to the McGown contract.</p> <p>The plaintiffs now bring this action upon these orders upon the ground that the money is due, because the houses have been completed; and having obtained a judgment at the trial term of the Marine Court, the same was affirmed at the general term ; and from such affirmance the defendant appeals to this court.</p>

<p>Under L. 1871, c. 635, § 28, as amended by L. 1874, c. 547, enacting that certain buildings therein described “shall be provided with such fire escapes, alarms, and doors, as shall be directed by the Superintendent of Buildings,” an owner of such buildings, although he has once provided them with fire escapes, in compliance with the direction of that officer, may subsequently be required to provide additional fire escapes therefor-</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial.</p> <p>The action was brought upon two promissory notes made by the defendant payable to the plaintiff or order. The defendant’s answer alleged the filing of his petition in bankruptcy, after the making and delivery of the notes, and his discharge from all claims provable against his estate on August 16th, 1878, which would include the notes in suit. The plaintiff replied, alleging fraudulent representations of solvency by the defendant when the goods were purchased and the notes given for their price.</p> <p>The jury rendered a verdict for the defendant, and a motion by the plaintiff for a new trial upon the minutes was denied. The judgment and order were affirmed by the general term of the Marine Court; and from the decision' the plaintiff appealed to this court.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury.</p> <p>The facta are stated in the opinion.</p>

<p>Appeal from a judgment of this court entered on the report of a referee.</p> <p>The facts are stated in the opinion.</p>

<p>The liability of the attorney for the plaintiff, to the amount of one hundred dollars, for the costs of the defendant in an action where the defendant is entitled to require security for costs, under sections 3268, 3278 of the Code of Civil Procedure, may be enforced by an application for an order requiring the attorney to pay that amount on account of such costs.</p> <p>The denial on the ground of laches of a motion by the defendant to require the plaintiff to give security for costs, does not affect the liability of the plaintiff’s attorney for the defendant’s costs.</p>

<p>Freight is not earned, under a bill of lading calling for the delivery, from a canal boat, at a specified pier, of a cargo of coal “alongside,” if the boat sinks with the cargo after arrival at such pier and notice thereof to the consignee, but before a reasonable time for him to take the coal from the boat has elapsed.</p>

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

<p>By an agreement for the hiring of premises, the tenant was to take possession of them on the 15th of April, at a certain rental per year, the term to expire on the 1st of May of the following year. He took possession on April 15th, accordingly, and occupied and paid the rent until July of that year, when ho removed from the premises. Held, that, the agreement being void by the Statute of Frauds, the tenant was liable only for the use and occupation of the premises for the time he actually occupied them; and that a tenancy from year to year was not to be implied from his occupation under the circumstances.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon a dismissal of a complaint, and affirming an order requiring the plaintiff to elect between causes of action stated in the complaint.</p> <p>The facts are stated in the opinion.</p>

On May 8th, 1878, Antonie Stuebing, a minor daughter of Charles and Annie Stuebing, was run over by one of defendants’ line of stages, and died from the injuries. On May 10th, the father, by a written instrument, in consideration of one hundred dollars, released and discharged the defendants from all and every claim he had against them, arising from the death of his child.

The action was brought against a foreign corporation, to recover damages for a personal injury to plaintiff, committed out of the state. Upon the hearing it appeared that the plaintiff was a non-resident of the state, and the motion to set aside the service of the summons and complaint was granted. From the order entered thereon the plaintiff appealed.

The plaintiff having filed a mechanics’ lien against property of the defendant, this motion was made by the defendant to discharge the lien upon executing and filing a bond for that purpose, pursuant to the lien act of 1875 (L. 1875, c. 379, § 18, subd. 4). The motion was denied on the ground that the general lien act of 1880 (L. 1880, c. 486) did not authorize the application. From the order denying her motion the defendant appealed.

Exceptions taken at a trial term of this court, ordered to he heard in the first instance at the general term. The facts are stated in the opinion.

The action was brought to recover damages for injuries received by the plaintiff by falling on the sidewalk of Spring Street, in the City of New York, on Friday, January 17th, 1879. The sidewalk was at the time covered with snow and ice. On the Sunday preceding there had been a snow fall, and another on Wednesday, ending on Thursday afternoon.

The action was brought by plaintiff, who was the assignee of Albert G. Woodruff and others, composing the firm of Wood-ruff, Morris & Co., to recover the sum of $55.37, the amount of . costs upon an appeal in the Marine Court, from an order made in an action brought by said firm against Daniel McGuire.

William R. Hynes, a resident of New York, was accustomed to spend considerable time in Europe. In the spring of 1871, while at the Langham .Hotel, London, he made the acquaintanee of the plaintiff Mrs. Hynes (who was a British subject), and an intimacy sprang up between them.

The defendant in this action was a voluntary association, and the action was brought by the plaintiff, claiming to be a member thereof, to recover certain sick benefits. The by-laws and constitution of this association were so worded as to permit three-fourths of the members present to amend them in any respect as they might see fit, and there was nothing which required notice of such amendment to be sent to the members.

The action was brought to recover damages for the taking of certain household furniture seized and sold by defendant, a city marshal, under an execution against the property of D. A. Skinnell, on March 7th, 1877. The plaintiff had purchased the property from Skinnell, February 1st, 1875, and the question submitted to the jury was whether this sale was fraudulent, and intended to hinder, delay or defraud the creditors of Skinnell, the vendor.

In November, 1875, the plaintiff, then about thirteen years old, either attempted to board or succeeded in boarding a train moving over the defendant’s railway, in Eleventh Avenue. On the trial, the plaintiff testified he had hold of the car rail, with one foot on the step and the other just leaving the ground, when defendant’s brakeman kicked him in the chest, breaking his hold upon the rail, whereby he fell, and the car passed over his leg.

<p>In an action to recover treble damages, under L. 1879, c. 168, for alleged extortion in exacting dockage for a canal boat lying and unlading at a bulkhead claimed by the defendant to be his private property, the burden of proof is on the plaintiff to show that the bulkhead -was within the class of bulkheads to which the act of the legislature fixing dockage and wharfage charges is applicable.</p>

Exception taken at a trial term of this court ordered to be heard in the first instance at general term. The action was brought against defendant, a foreign corporation, for an injury to the person of plaintiff, committed n New Jersey. The answer was a defense to the merits.

<p>Appeal from a judgment of a district court in the- City of Now York.</p> <p>The facts are stated in the opinion.</p>

In July, 1879, an action having been commenced by the defendant Michael Englert against one August G. Genez, an application was made for an order of arrest against said Genez, and upon such application an undertaking executed by all the defendants herein in the manner and form required by the Code was offered and accepted by the judge to whom the application was made, who thereupon issued an order of arrest, upon which order the said Genez was arrested and was released upon…

<p>After an answer lias been stricken out as frivolous, and judgment thereon ordered against a defendant, he should not be permitted to plead another defense known to him at the time of serving such frivolous answer, and purposely withheld by him.</p>

The action was brought upon a promissory note made .by the defendant William P. Rogers, to the order of the defendant James F. Rogers, and indorsed and delivered by the latter to the plaintiffs. The note was made without consideration, for the accommodation of James F. Rogers, and was indorsed and delivered by him to the plaintiffs as collateral security for the purchase by them for his account, of certain stock, which they were to carry for him.

The action was brought for an accounting of the affairs of a copartnership. On the 2nd of January, 1877, articles of copartnership were entered into between the defendant, Joseph Beckel, Elizabeth Stowell Weldon, Emile II. Roth, L. F. Weldon and Benjamin F. Beckel.

The action was brought upon a promissory note made by the defendant John Davis, Jr., to the order of the plaintiff, and indorsed by the defendant… Held: as security, a mortgage by Davis of household furniture owned by the latter. After the note became due, the plaintiff took from Davis a new mortgage of the same property, with the exception of articles worn out or injured, and including other articles not in the original mortgage of greater value than the articles omitted.

The complaint in the action alleged the copartnership of the plaintiffs; the fact that the Urbana Wine Company was a corporation duly organized and that prior to the 18th of November, 1880, the plaintiffs sold and delivered to the corporation certain goods at a price exceeding the sum of $506, and that the same or a portion of said price was on said day due and unpaid, and that the plaintiffs then demanded payment thereof ; that on or about the day last mentioned, at the…

One Vernon K. Stevenson, jr., who was a real estate broker, was employed by the defendant to sell certain premises in the City of New York. The premises were advertised and offered for sale by Mr. Stevenson to various parties. In December, 1879, one Mrs. Gill called at the office of Mr. Stevenson to make inquiry in respect to houses, she desiring to purchase a residence, and stating that she wanted one on the Fifth Avenue.

The action was brought against J. Gr. Wilson and John D. James, as partners, for collecting and appropriating the proceeds of a promissory note entrusted to them by plaintiffs for collection. The collection and appropriation was by James, without the knowledge or consent of Wilson, and the plaintiffs obtained an order of arrest against James only. Judgment was recovered against defendants jointly, and a joint execution was issued against their joint and separate property.

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>The facts are stated in the opinion.</p>

Trial by the court without a jury of an action by a judg-' ment creditor to set aside conveyances by his judgment debtor. The facts are stated in the opinion.

<p>In an action of ejectment, the answer set up, with other defenses, an equitable counter-claim, which was dismissed upon trial of the issue thereon at an equity term of the court, and subsequently, the other issues were tried before a jury, who found a verdict for the plaintiff. Meld, that the defendant was not entitled, upon payment of the costs,under 2 It. S. 309, § 37, to a new trial of the equitable issue on the counter-claim, but only to a second trial of the other issues.</p>

The action was brought against the sheriff of the City and County of New York for an alleged trespass. Another action for the same trespass having been brought in the Marine Court of the City of New York by the same plaintiff against an indemnitor of the sheriff, in which satisfaction for the trespass had been made by the indemnitor, the sheriff moved for leave to set up such satisfaction by way of supplemental answer in this action.

<p>Tbial upon a demurrer to a complaint.</p> <p>The facts are stated in the opinion.</p>

<p>An agreement between a husband and wife and a trustee for the wife provided for a separation of the husband and wife during life, the wife to have the custody of their children, the husband to pay to the trustee a certain sum weekly for the support and maintenance of the wife and children in discharge of the husband's liability therefor, and the trustee to indemnify the husband against any other charge or expense therefor and against all debts thereafter contracted by the wife on her own account or on account of the children. The husband and wife did, after-wards, and pursuant to the agreement, live separate; and the provisions of the agreement were for a time performed, until, the husband having offered to support the wife and children if they would reside with him, and the wife having refused the offer, he thereupon ceased to make the stipulated payment to the trustee. Held, that the agreement was valid as to the wife, even if the provision in respect of the custody of the children was invalid; that the husband was liable to the trustee for the support of the wife and children, so far as the agreement had in good faith been executed, notwithstanding the wife’s refusal of his offer; and that the trustee might recover from him the amount stipulated in the agreement.</p>

<p>Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>In and prior to March, 1879, the defendants were owners of Gilmore’s Garden, and had leased the same to one Kelly for che purpose of having there an international walking match. The tenant had leave to make alterations, but was bound to restore the premises at the end of his term to the same condition they were at the beginning. At the time of the lease, there was a balcony across the westerly end, ■ subdivided into boxes, each containing a table and from four to ■six chairs. The tenant removed these, and during the exhibition the balcony was crowded with persons, occupying every available space, when it fell, from want of sufficient strength to support the weight. The plaintiff was there at the time, and was injured by the fall.</p> <p>This action was brought to recover damages for the injuries received. The jury found a verdict for the plaintiff. A motion by the defendants for a new trial was denied, and judgment in favor of the plaintiff was entered on the verdict. From the judgment "and the order denying their motion for a new trial the defendants appealed.</p>

<p>Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>The court has power, on motion of a defendant, after a verdict against him, to set aside the verdict as against the weight of evidence, although he did not move, at the close of the testimony, for a direction in his favor, or for a dismissal of the complaint.</p> <p>Upon the trial of an action to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the defendant’s negligence, the plaintiff and two witnesses on his behalf, both connected with him in some way, testified to circumstances showing negligence on the part of the defendant, and freedom from negligence on the part of the plaintiff; the main features of their testimony bearing a striking resemblance. They were directly contradicted by five witnesses on behalf of the defendant, four of whom were disinterested, and no one of whom was impeached or shaken by cross-examination; all of them were spectators of the occurrence in question, and gave an account of it that was clear, consistent, and reasonable; and two other persons, both disinterested and respectable, testified that the plaintiff himself, on two different occasions, before suit brought, made to them statements that not only contradicted his testimony at the trial, but confirmed with great circumstantiality and exactness the testimony given by the other witnesses for the defendant. Meld, that a verdict for the plaintiff was in conflict with the overwhelming weight of evidence, and should be set aside.</p>

<p>Trial of action to foreclose a mechanic’s lien.</p> <p>The facts are stated in thé opinion.</p>