Volume 10 — Jones & Spencer's New York Superior Court Reports

<p>Appeal by the defendant from a judgment entered upon the report of a referee.</p>

In this case the complaint was dismissed, and the exceptions were ordered to be heard in the first instance at the general term. The action was brought to recover damages for failure to .perform a contract for the sale and conveyance of real estate situate in the city of New York.

Appeal by the defendant from a judgment in plaintiff’s favor, upon a verdict for seven thousand one hundred and seventy-three dollars and seventy-five cents.

Appeal by the plaintiff from the judgment entered upon the verdict, and from the order denying a new trial on the judge's minutes. The action was brought by the plaintiffs, to recovei the value of a package entrusted to the defendant’s care for transportation to Memphis, Tenn. The facts, and the history of the case, appear in 35 N. T. Super. Ct. (3 J.&S.) 182 ; 53 U. T. 652 ; 56 Id. 168; 38 N. T. Super. Ct. (6 J.&S.) 248 ; 62 D. T. 35; 40 If. T. Super. Ct. (8 J.&S.) 512.

<p>ACTION TO RECOVER A PENALTY.</p> <p>Under the general or revised statutes it is provided as follows ; " Upon every process issued for the purpose of compelling the appearance of the defendant to any action for the recovery of any penalty or forfeiture, shall be indorsed a general reference to the statute by which such action is given, in the following form, ‘ According to the provisions of the statute regulating the interest on money,’ or ‘ according to- the provision of the statute concerning sheriff,’ as the case may require, or in some other general terms referring to such statute ” {Banks' Bevised Statutes, 4th Edition, marginal page, 784, § 7). The object of this pro- . vision was to inform the defendant of the nature of the action, when the' same was commenced by the ordinary process (capias) of the courts of record before the adoption of the Code; but when the action was commenced by the service and filing of a declaration, which contained the information, it was held to be a compliance with the statute (Thayer v. Lewis, 4 Denio, 271).</p> <p>The same principle has been applied to the present practice, and it has been held, that where the information is contained in the complaint attached to and served with the summons, that the statutory requirement is fulfilled. (Cox vi New York Central & H. Pu. R. R. Co., 61 Bari. 615).</p> <p>The complaint in this action that was attached to and served with the summons, shows that the action was to recover a penalty for “the violation of the insurance acts and statutes of the State.” This is a sufficient compliance with the statute.</p> <p>But under the Code there is just reason to hold that the statute is no longer in force.</p>

<p>Appeal by the defendants from a judgment entered upon the verdict of a jury.</p>

This is an appeal from a judgment in favor of the plaintiff for $5,633.88, entered upon the report of Edward L. Owen, Esq., referee to hear and determine the issues. The action was brought by the plaintiff, claiming to be the owner of the barque “Trait d’Union,” to recover damages for an injury to the barque, caused by a collision with the ferry-boat Martha, owned by the original defendant, Gideon L. Knapp.

<p>Appeal from judgment.</p>

Verdict for plaintiff, and the exceptions ordered to be heard in the first instance at general term. The action was on contract, against the defendants as partners. The defense of Edward L. Merrifield was that he was a special partner, under the statute for the formation of limited partnership.

'Appeal from judgment for defendant, on report of referee. The action was to recover money paid and laid ont by plaintiffs at request of defendant, for advertisements caused to be made by plaintiffs at request of defendant. On the trial, it was shown that the defendant requested the plaintiffs to procure certain advertisements to be made in newspapers, of sales of real estate.

The action is for the taking and detention of personal property. The answer contains a general denial, and sets up that the property in question belongs to one William H. Lane, and that it was taken under an execution against him in favor of one James C. Greggs. The plaintiffs obtained possession of the property under the claim and delivery proceedings.

The motion was heard at special term, before his Honor Judge Sedgwick, who rendered the following opinion: I am of opinion that the court has no power to grant this motion; but that while the case is on trial before the referee, the relief asked is placed by the Code within the discretion of the referee, acting as the court. This decision being placed upon a want of power, the order is appealable. Motion denied. Ten dollars costs to defendant.

<p>I. TRUSTEE; CONVERSION; TROVER.</p> <p>1. Possession wrongfully obtained.</p> <p>(a.) A trustee who, through a purchase in his own name, and for his own benefit, of property belonging to the cestui que trust, in relation whereof he is trustee, from one holding the same in pledge, or hypothecation, or under a mortgage or lien, in a manner in which he is authorized to sell, acquires possession thereof, is chargeable with a conversion.</p> <p>2. Demand and refusal.</p> <p>(a.) Although he acquires the possession rightfully for the purposes of the trust, yet if, when by the terms of the trust, the property is deliverable to the cestui que trust, he on demand refuses to deliver, lie is chargeable with a conversion.</p> <p>3. Fobm of action.</p> <p> (a.) Agreement. </p> <p>1. The cestui que trust need not base his action an the agreement which raises the trust.</p> <p> (b.) Trover. </p> <p>He may bring a common law action of trover for the conversion.</p> <p>II. VALUE OF NEGOTIABLE SECURITIES.</p> <p>1. Evidence oe.</p> <p>(».) The testimony of a witness as to the market value at a somewhat remote period, founded: on a general recollection, based on his keeping the run of the market price in consequence of Ms being very much interested in the company which issues the securities, is competent and sufficient prima farie,</p> <p>ALTHOUGH</p> <p>he has no recollection of buying or selling, or as to any sales or purchases made, at that period.</p>

The action was brought to recover the balance of the purchase price of a cargo of wheat .sold by the plaintiff in October, 1868. The defendant alleges that he was the agent of the firm of C. A. Steen & Co., and that the purchase was made for them, of which the plaintiff had notice.

This action was brought by the plaintiffs, a corporation under the laws of the State of ¡New York, against the defendants, to recover the sum of $80,000, and interest, which snm was advanced by the plaintiffs upon forty-two forged bonds of the Buffalo, ¡New York & Erie ¡Railroad Company, on July 5, 1873. The loan was made to the defendant, Charles Ralston, who was not served with process, he having run away as soon as he obtained the money from the plaintiffs.

Appeal by the defendant from a judgment for $15,993.92 entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action is brought to recover the cost price of 133 shares of stock, of the “New York Construction Company,” which the plaintiff alleges were purchased by the defendant on June 30, 1873, to be paid for on October 10 following, or previously, at defendant’s option.

<p>DEMURRER TO COMPLAINT.</p> <p>Facts stated, not sufficient to constitute a cause of action.</p> <p>The complaint claimed damages for the non-fulfillment of a contract for the sale and purchase of gold.</p> <p>It alleged that the sale and purchase was made under and in accordance with, the rules of the gold exchange, and that said rules formed part of the agreement, and that one of them, controlling the contract, provided, that on all contracts made at the board, either party might require a deposit of twenty per cent, as security, &c. That after notice, &c., under this rule, the defendant refused to make this deposit, and plaintiff after-wards sold the gold at a lower rate than the price named in the contract, &c.</p> <p>Held, that although the rule of the gold exchange is expressly confined to the contracts made at its board, yet if parties choose to agree that their contracts shall be governed by, and be subject to, the rules of the gold exchange, they can do so, and such rules may be resorted to, in ascertaining the character, and the fulfillment or breach of such contracts, so far as those rules control or relate to the same, and the allegations of the complaint are sufficient to bring the contract under the • control and interpretation of the rule set out therein.</p> <p>The effect of this rule is that a failure to deposit as therein provided, constitutes a breach of the contract that is made subject to it; and not only that, but it also gives the aggrieved party an immediate right of action for his damages; proof of tender or readiness to perform becomes unnecessary. The defendant, by his refusal, caused a failure to complete the contract, and cannot now avail himself of the non-performance that he has occasioned (Clark «. Crandall, 37 B<lrb. 73; Moses ». Bierling, 31 H. T. 463; Nelson v. Plimpton F. E. Co., 55Id. 484). The plaintiff in this case was not the pledgee of the gold. On the failure of the defendant to complete the contract he could resume his original rights in respect to the gold, and could sell if unrestricted by any obligation to give notice to the defendant (Pollen ®. Le Eoy, 30 IF. 7. 556 ; Dustun y. McAndrew, 44 Id. 78; Lewis y. Greider, 49 Barb. 635).</p>

Motion by the plaintiff for leave to re-argue the motion for a new trial, made by the defendants at the December general term, 1875.

Appeal by defendant from a judgment entered upon the report of a referee. The action is for the recovery of $126.83 collected by the defendant as an attorney at law for the plaintiff. The defendant admits the collection of the money, but avers that the plaintiff owes him $500 for professional services, and asks judgment against the plaintiff for the balance.

The action was for damages for the unlawful ejection of plaintiff from the ear of defendant, while plaintiff was on a journey. Held: unless the jury should find as a fact, that he had notice of the regulations put in testimony, and also charged that these regulations were reasonable.

Verdict for defendant by direction of court, under exceptions ordered to be heard in first instance at general term. The action was for damages for non-delivery upon demand of segars stored by plaintiff with defendants as warehousemen.

This is an appeal from a judgment rendered at special term, March 20, 1876, after a trial of issues of fact before the court without a jury. Held: and Chapman attended. Ten or twelve out of about nineteen creditors were present, or were represented. It appeared that Rothman’s indebtedness was about $10,000 and his assets about $3,000.

Appeal by the plaintiff from a judgment in favor of the defendants, dismissing the complaint and dissolving an injunction granted pendente lite without costs. This action, in the nature of a creditor’s bill, was brought by the plaintiff, a judgment creditor of the defendant John Gr.

<p>Appeal by defendant from a judgment for $9,142.30, entered upon a verdict in favor of plaintiff; also, from an order denying defendant’s motion for a new trial made on the minutes of the court; also, from an order made at special term, after judgment, denying defendant’s motion for a new trial on the ground of newly discovered evidence.</p> <p>The action was brought to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants, who are common carriers- of passengers for hire.</p> <p>On the afternoon of February 3, 1873, the plaintiff, with other passengers, crossed the platform extending from defendant’s waiting room to the track of their railroad, in order to enter a train then about to depart from one of their stations. It had been snowing-during the day and the night previous. The platform was in an icy, snowy, slippery condition. The plaintiff slipped upon the ice, fell, and sustained serious injuries, from which it is improbable that he can ever entirely recover.</p> <p>At the close of the plaintiff’s case, the defendants moved to dismiss the complaint, on the ground that the evidence failed to show negligence on their part, and tended to establish want of due care on the part of the plaintiff. The motion was denied. It was renewed at the close of defendant’s evidence, and again denied.</p> <p>The court charged the jury, among .other things, that “the defendants were bound to be on the alert during cold weather,,and to see whether there was ice upon the platform, and to remove it, or make it safe by sanding it, or putting ashes upon it, or in some other manner ; and that the omission to do so, or something equivalent, was negligence.” Also, “that the defendants were bound under the circumstances of this case, to keep the platform free from snow and ice, or from being slippery, . . . so as to allow passengers to go upon it in safety.” "Exception was taken by the defendants to these portions of the charge.</p> <p>The jury rendered a verdict for $9,000 in favor of the plaintiff.</p> <p>The court declined to set aside the verdict as against the weight of evidence or as excessive, and the defendant’s motion upon the minutes, for a new trial on these grounds, was denied.</p> <p>After judgment, the defendants applied at special term for a new trial, upon affidavits tending to show that the conductor, who had charge of the train, and who witnessed the accident, but who was not called as a witness at the trial, could testify to material facts not within the knowledge of defendant’s superintendent at the time of the trial. The newly discovered evidence was to the effect that the plaintiff fell on the steps leading from the waiting-room to the platform; that there was no snow or ice upon those steps, and that he afterwards admitted that the company was not to blame. Several affidavits were read in opposition, contradicting the conductor, and showing that the trial had been once postponed in order to enable the defendants to secure his attendance or procure his deposition, and that they finally proceeded to trial voluntarily in his absence, without applying for a further postponement, and without attempting to take his deposition under commission or otherwise.</p>

95 costs entered upon the dismissal of the plaintiff’s complaint. This case has been twice tried. On the first trial, the complaint was dismissed at the close of the evidence on behalf of the plaintiff. Exceptions then taken were heard in the first instance, as ordered, at general term, and were overruled. The court of appeals reversed the judgment thereupon entered in defendant’s favor, and directed a new trial.

Youngs. The summons and complaint were served, on March 27, on the defendant Mrs. Youngs, at the-residence of the defendants, by a deputy sheriff. She informed him that her husband was ill within the house, and declined to give him permission to see him or to serve him. The officer in Ms affidavit stated he was unable for these reasons to make such service, and an order was made for a substituted service.

Tkis action arose out of a written contract, by which the plaintiffs agreed to furnish the necessary materials for filling up, and to complete the filling of Seventy-sixth street, in the city of New York, and have the ■ same completed on or before June 1, 1873, and by which the defendant agreed to pay for such work, upon the completion thereof, at the rate of twenty cents per cubic yard.

Exceptions heard at general term. The defendant consigned to the plaintiffs, who are merchants at Buenos Ayres and Monte Video, two cargoes of coal for sale on commission. The action is brought by the plaintiffs to recover for advances and an alleged balance for disbursements on account of freight, demurrage, &c., over and above the proceeds realized from the sale of the coal.

Appeal by attorney for plaintiff. This is an appeal taken by plaintiff’s attorneys from an order made at special term setting aside an execution and levy made thereunder. •Execution was issued October 25, 1876. The judgment upon which it purported to be issued was satisfied óf record on October 17, 1876, and so marked upon the docket. Upon affidavit showing these facts, defendant moved to set aside the execution and levy.

Exceptions heard at general term. The action was brought by the plaintiff to recover four months’ salary, to wit, from September 1, 1871, to January 1, 1872, as attendant on and messenger of the superior court. The complaint and answer were as follows : ‘‘ The complaint of the plaintiff respectfully shows to the court: “First.

The action was brought against the defendant as maker of a promissory note for $360, signed Martin & Co. The defendant denied that he was ever a partner of the firm of Martin & Co., and also pleaded usury. At the trial, which took place May 5, 1876, testimony was given on both sides, and plaintiff had a verdict, upon which judgment was entered.

<p>I. COSTS — JUDGMENT FOR.*</p> <p>1. Order of general term reversing the judgment and ordering a new t>'idl with costs to the appellant to abide the event,—effect of, upon the costs. '</p> <p>1. Respondent, on again succeeding upon the new trial, cannot include in his bill of costs as a taxable item, the amount adjudged to him for costs by the judgment reversed.</p> <p>(a.) This although the reversal was for a technical error.</p>

Appeal by the plaintiff from a judgment entered upon a verdict in defendant’s favor, and from an order denying a motion for a new trial. The action is to recover damages for the removal of two partitions in the rear of a store, eight feet eight inches wide, occupied by the defendant as a tenant under a letting from a former owner, and converting the materials.

This was an appeal from an order denying a motion made at the special term on a case for a new trial. This action was brought for the recovery of §50,000 damages against the defendant for injuries sustained by the plaintiff, in being run over by defendant’s cars, on June 17, 1874, at the corner of Fifty-seventh street and Fourth avenue, in the city of New York.

<p>PRACTICE; RULES OF COURT.</p> <p>Enforcement by order.</p> <p>Bule 10 of this court and 44 of general rules.</p> <p>The rules of the courts seek to secure cases and exceptions properly settled and definitely determined, as to their form and contents, before coming before the appellate courts for consideration, and to give all parties opportunity to have the questions brought up fairly and accurately for review.</p> <p>If a party appellant, prints, files and serves a case that is not the case as settled, a wrong is committed, and it is a necessary incident to the powers and jurisdiction of a court in the administration of justice, that it should have control over its files and records, to prevent their use wrongfully. And such control can be enforced by order as in this case, in conformity with rules 10 and 44.</p> <p>The authority and force of these rules was provided lor in section 470 of the Code, and in Laws of 1870, chapter 408, section 13. When the statutes or the rules of the courts do not cover a case, the rules of the court of king’s bench are followed (Dubois ». Phillips, 5 Johns. 335; Rule 97).</p>

This is an appeal by the defendant Busenbury, from a judgment entered against him personally, for §3,076.50.

This is an appeal by the defendants, Mattlage and Wedemeyer, from a judgment for $3,602.49, rendered against the defendants at a trial before the court at special term.

The action is brought to recover a balance of $3,000, for building three five-story houses for the sum of $16,500 on defendant’s land, under a contract made by the defendant with the plaintiffs. After the action was commenced the defendant paid on account of the buildings and for the plaintiff’s use in a proceeding for the enforcement of a mechanic’s lien, $1,000.

The action is brought upon a policy of insurance, made by the defendant on the life of James Neill, the husband of the plaintiff. The policy was for $5,000, and was issued in 1868. The premiums were all duly paid. The answer of the defendant sets up that it was stated in the application for insurance, that the age of the insured was fifty years, whereas the defendant avers upon information and belief, that his age was fifty-five years.

<p>FRAUD.</p> <p>False representations and a suppression or omission to state all the liabilities of a firm, when professing to so do, for the purpose of obtaining credit, are equally inconsistent with honesty and good faith.</p> <p>A party is not obliged to answer questions nor to volunteer statements in regard to his capital and business affairs, when seeking credit; but when he undertakes to give a statement of his affairs in order to obtain such credit, common honesty requires him to give a truthful and full statement, and under such circumstances, there is as much fraud in a suppression or omission to disclose an integral part of his liabilities in order to deceive the party from whom he seeks credit, as there would have been in making a false representation as to the amount of his assets.</p> <p>It is impossible to reconcile alleged failures of memory in regard to large liabilities (which in this case exceeded the capital claimed in the statements and representations) with what is commonly known and recognized as honesty and fair dealing among business men. Such allegations cannot be received in justification of such suppressions and omissions. The approval of the acts of a party under such circumstances would be at variance with the settled principles on which mercantile transactions and commercial credit , rest and are governed.</p>

The complaint averred the making- of a contract between the plaintiff and one Leonard, for the sale and conveyance to the latter of a house and lot of land on the northerly side of Twenty-seventh street, in the city of Hew York, for the price or sum of $21,500, to be paid partly in cash, parity by a conveyance of other premises to the plaintiff, and partly by the purchaser's assuming the payment of a mortgage for $15,000, then on the premises, and subject to which the…

The action was for the value of services, alleged to have been rendered by plaintiff at request of defendant and for his benefit. The answer, beside allegation of special matter, in substance denied generally the averments of complaint.

Exceptions ordered to be heard in first instance at general term. The action was for rent of a dwelling-iionse, for the quarter beginning May 1, 1875. The defendant had been tenant for the previous year, and had held over and remained in possession until May 11, 1875, when he moved with his goods and family from the house.

Exceptions ordered to be heard in first instance at general term. Verdict for plaintiff, with stay of entry of judgment. Held: “ that the manner of the taking down of defendant’s building, not having been regulated by a contract which preserved the rights of the plaintiff in the party-wall, and no notice having been given to the plaintiff that such work would be done, the defendant is liable for the consequence of the acts of commission and omission of all…

An order had been made at special term on a case by the judge who tiled the cause, granting a new trial, and at this time was argued the appeal of plaintiff from the order granting a new trial.

<p>Appeal from judgment on verdict of jury for plaintiff.</p>

Exceptions ordered to be heard in first instance at general term, after dismissal of complaint.

This is an appeal by the defendant from a judgment rendered at a trial term in an action tried by the judge alone without a jury. The action was originally against Henry Stark-weather, who died after issue joined and before trial. The suit was revived against his administratrix with the will annexed, on November 23, 1875.

Appeal by plaintiff from judgment entered on dismissal of complaint. Held: and also agreed to furnish plaintiff a certain portion of space for the exhibition of his wares, and to furnish tables on which to place his show cases, and to give plaintiff an exhibition ticket; that the plaintiff prepared certain of his wares for the exhibition, in accordance with his application, at great cost, and duly offered…

Exceptions ordered to be heard at general term. The action was brought to recover $2,000 and interest upon a policy of insurance issued upon the life of Dr. Samuel H. Butler, the husband of the plaintiff, for her benefit, on July 18, 1870.

The plaintiff sues the defendant as a common carrier for the value of a trunk and contents, upon the ground that the same was lost by defendant’s negligence. The answer admits that the defendant is a carrier for hire, but alleges an agreement limiting the liability of the defendant in case of loss to $100, unless specially agreed for. That no such extra risk was agreed or paid for.

An appeal from an order granting a reference to ascertain damages upon an injunction. The injunction was modified, but not vacated, and leave was granted to plaintiff within ten days after service of supplemental answer, to re-enter an order dismissing the complaint on payment of costs.

This is an appeal from a judgment dismissing the complaint on referee’s report. The plaintiffs recovered a judgment for work, &c., against the Patent Lock Shank Button Company, a foreign corporation, incorporated under special act of the legislature of the State of New Jersey. Execution was returned unsatisfied. The defendant was sued as a stockholder, holding stock not fully paid for, in an amount exceeding plaintiffs’ claim.

This is an appeal by the defendant Arnstein from an order denying a motion to vacate the judgment entered herein and the execution issued thereon and to allow him to defend the action. In 1871, Caroline Pollock brought a replevin suit against the plaintiff in this action (being the defendant in that one) and she as principal and Wahlig & Ma- . thias as sureties, executed an undertaking to procure the delivery of the property to her.

An appeal from a judgment entered upon a decision in favor of the defendants, dismissing the complaint with costs. On March 24, 1368, the defendants leased to the plaintiff the premises on the south-east corner of Broadway and Twenty-second street, in the city of Hew York, for the term of twenty-one years, which premises the plaintiff sub-let to various tenants.

<p>I. PARTNERSHIP.</p> <p>. 1. ATTACHMENT ISSUED, IN AN ACTION AGAINST CO-PARTNERS UPON A FIRM DEBT, AGAINST ONE OF THE FIRM.</p> <p>(a) What can be seized under.</p> <p>1. Only the right and interest of the partner against whom the attachment issued, in the partnership goods; which is the surplus remaining after the partnership debts have been paid.</p> <p>(b) Agreement between attaching creditor and subsequent assignee of the firm, whereby in substance the assignee was to sell the attached goods; and the applicability of the proceeds to be determined by the court or otherwise, as the parties might agree.</p> <p>1. Effect of. It places the attaching creditor in the position of a jiurchaser of the attached interest at a sheriffs sale thereof.</p> <p>Held—</p> <p>it appearing on the trial of an action brought by the attaching creditor, based on such agreement, that at the time of the levy of the attachment the firm was insolvent, that no part of the proceeds was applicable on the judgment obtained in the action in which the attachment issued, and therefore the complaint, was prop- ■ erly dismissed.</p>

This is an appeal from a judgment entered on a verdict in favor of the plaintiff, and also from an order denying defendant’s motion for a new trial, made on the minutes of the court. This action is brought on a policy of life insurance, for $1,500, issued by the defendants on the life of plaintiff’s husband, John A. Ritzier.

The plaintiffs leased and demised to the defendant, Daniel S. Youngs, certain lands and premises described in the complaint, for the term of his natural life, at the annual rent of one dollar, with power to sub-let any and all of the buildings thereon, and to collect the rents therefor, during the said term. The lease contained no covenants or conditions, and no re-entry clause.

Appeal by defendant from a judgment for $4,495.49 entered on a verdict in favor of plaintiffs. The action was brought to recover damages for the wrongful conversion of a quantity of red cedar logs and cedar bolts. A general denial of the allegations of the complaint constituted the issue.

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Liability of, in their representative capacity.</p> <p>A party who has rendered services to the estate after the death of the testator or intestate, but in pursuance of a contract made with the latter during his life, can recover the value of the same, in an action against the executors or administrators.</p> <p>Where such an action has been brought, and a jury found the contract to have been made as claimed by the plaintiff, the verdict cannot be disturbed except for errors of law committed on the trial.</p> <p>Where exceptions taken on such a trial are ordered to be heard in the first instance at general term, no question of fact can be considered by the general term; nor the point that the verdict is against the evidence; nor can the verdict be set aside on the ground that it is excessive; and the exception to the decision of the motion for a new trial on the minutes of the court, is also unavailable. The only mode for reviewing such decision is by an appeal from the order denying the motion. (See cases cited in the opinion of the court.)</p> <p>EVIDENCE.</p> <p>Admissibility of, under § 399, Code.</p> <p>In the case at bar the court, against the objection and exception of the defendants, permitted the plaintiff to testify on his own.-, behalf to a conversation and interview with the defendant’s - intestate in regard to the services that he was to perform, and':, which were the subject of this action, upon the theory that the • witness could leave out his own personal share of the conver--sation, and testify only to such part thereof as was had between •= the deceased and another.</p> <p>Held, to be error, as such testimony was within the rule exclud-s - ing such transactions and communications (Code, § 399). Cases-cited and commented upon: Simmons v. Sisson, 26 N. Y. 276; . Lobdell v. Lobdell, 36 JY. Y. 333; Cary ®. White, 59 JY. Yi. 338; Brague v. Lord, 41 Buper. Gt. Reports, 193.</p>

The action is for the recovery of money advanced. The plaintiff’s case was as follows: Two firms, Hartshorne & Co. and Hartshorne & Brand, brewers, doing business in connection, failed in business and made an assignment for the benefit of their creditors to the defendant, who was one of the creditors. The defendant permitted or authorized the members of the insolvent firm to carry on the business with the assigned property for the benefit of the creditors.

<p>negligence.</p> <p>In this case, upon the trial in the court below, the verdict was for the plaintiff. The argument before the general term, was upon the usual questions in such cases:</p> <p>First. Did the proofs establish that the accident was caused by the negligence of the defendants 1</p> <p>Second. Did the proofs establish that the negligence of the plaintiff did not contribute thereto ?</p> <p>The court, upon a full review of the facts and circumstances, fully set forth in the opinion, held the affirmative of each of these questions, and affirmed the judgment.</p>

On the trial the judge charged, among other things, as follows: “I charge you that no contributory negligence is to be imputed to him (the plaintiff) from the mere fact that he had indulged in drink merely to the extent of its becoming perceptible from the smell of the breath.

<p>I. DEPOSIT IN BANK PAYABLE TO THE WRITTEN ORDER OF THE DEPOSITOR.</p> <p>1. ACTION AGAINST THE BANE TO RECOVER.</p> <p>(as) Defenses, what ake not.</p> <p>1. OhecTo, payment of. The fact of payment by the bank of the amount of a cheek drawn by the depositor to the order of a payee, to a person other than such payee, on the forged indorsement on the check of the name of such payee, does not constitute a defense.</p> <p>1, It is not a payment to the written order of the depositor.</p> <p>2. Negligence of depositor. This, unmixed with the element of inducement by or through the depositor to pay on the forgery, constitutes no defense.</p> <p>1. Negligence, what will not constitute.</p> <p>(a) A depositor signing checks for amounts not due to the payee, trusting, without making a personal examination, to his clerk’s statement that such amounts were due, and after signing, handing them to the clerk, will not.</p> <p> II RATIFICATION, WHAT R0E8 NOT AMOUNT TO. </p> <p>1. Non-discovery of the forgery of the indorsements upon checks drawn by a depositor to order of a payee, which checks had been honored by the depository and returned to the depositor with his pass-books where he was charged with the amounts thereof, for a length of time after such return, say two years, and the not malting any claim, against the depository until after such discovery, is hot a ratification of the payments made on such forged indorsements.</p> <p> III. AGCOUNT 8TATED. </p> <p>1. DEFENSE OF, TO AN ACTION BROUGHT ON A CONTRACT.</p> <p>(a) Pleading of Plaintiff, what not necessary.</p> <p>1. A reply denying the account stated, or if admitting it, the setting forth that plaintiff was erroneously debited or credited therein (as the case may be), in respect of the cause of action, is not necessary. °</p> <p>2. Amended complaint. Nor is it necessary to amend the complaint by inserting allegations of error in the account, with a view to open it.</p> <p>(&.) Overcoming effect of defense of ; what may be shown.</p> <p>1. Errors or mistakes affecting the result.</p>

<p>Appeal from judgment entered on order at trial dismissing complaint.</p> <p>The facts appear in the opinion.</p>

This action, in the .nature of a creditor’s bill, was brought to set aside an assignment for the benefit of creditors, and was tried in April, 1875, at special term.

The plaintiff as assignee of one Jacobs brought this action for three installments, alleged to be due by the defendant, under a contract. The first installment had been paid under the judgment hereafter referred to. The contract, made October 26, 1870, was that Jacobs agreed to advertise the defendant’s card, “the same as now in Frank Leslie, in thirty papers for one year, with good notices once in six months, for six hundred dollars, to be paid quarterly in advance.

This case comes up on plaintiff’s motion that this court direct a judgment to be entered upon a verdict rendered in favor of the plaintiff, subject'to the opinion of the general term. The plaintiff sued to recover the salary alleged to be due him as landscape architect of the Department of Public Parks from May 31,1876, to July 31, then next, inclusive.

The plaintiffs leased the premises No. 396 Broadway, New York, for two years from May 1, 1874, to William H. Ward, for $8,000 a year, payable quarterly on the usual quarter days. On July 30,1875, Ward entered into partnership with the defendant under the firm name of Ward, Dickson & Co., which was to continue by the partnership agreement for one year from August 10,1875.

It seems proper, with a view to giving all the facts upon which the decision of the court is based, to particularly set forth the stipulations referred to in the opinion, and the facts out of which they arose. After judgment had been entered on the verdict, in Knox v. Hexter, defendant appealed to the general term and obtained an ex parte order staying plaintiff’s proceedings.

<p>The action is brought upon the defendant’s guaranty of four notes of Joseph Bernhard, two of which had been paid. The defense is usury. The four notes are all dated March 11, 1873, at the city of New York, and are payable there. The guaranty was delivered simultaneously with the notes by Bernhard, to the plaintiff, by mailing the same to him in a letter at the city of New York, by his direction.</p> <p>The action was tried before the court without a » jury by consent of parties, and judgment was ordered for the defendant against the plaintiff, with costs.</p>

The plaintiff and Joseph Heron, on May 11,1875, in New York made this agreement: “ I have this day bought of Joseph Eneas, the cargo of cocoanufcs on board the schooner ‘Win. R. Knighton,’ now here, for forty dollars per thousand, as they run, throwing out cracks and rots only. The cargo to be of prime, merchantable quality, culls not to exceed ten per cent,. Ten working days to discharge.

<p>I. PERSONAL PROPERTY—TITLE TO.</p> <p>1. Purchase by A at the request of B.</p> <p> (a.) Title and property nests in A, when. </p> <p>B, doing business at New York, sent an order to A, doing business at Buffalo, to buy wheat for him and ship it, advancing the purchase price himself. A not having the money with which to pay the purchase price, applied to the cashier of C, (a bank at Buffalo) stating he had the order to buy, and asking if the bank would discount a draft at 20 days, drawn on B at New York for an amount sufficient to pay for the wheat with the bill of lading consigning the wheat to the Bank as security; the Bank consented to do so. A thereupon purchased, the wheat ordered by B, and shipped it, consigning it not to B, but to the cashier of the Bank, and drew a draft on B for the purchase money, but only agreed to deliver the wheat to the drawer upon condition that the draft should be accepted and paid. The Bank discounted the draft, receiving from A the Mil of lading for the wheat as security, and gave A a check for the proceeds of the discount, with which A paid the purchase price óf the wheat. A made the purchase as principal vendee without disclosing to his vendor for whom he was acting. After the order to purchase, but before the purchase, B wrote to A, asking him not to draw for any margin, but to advance the whole purchase price himself, assigning as a reason that prior thereto he had purchased on his (B’s) order, and had drawn on him at sight for part of the purchase money, known as “margin,” and a time draft for the balance, which he (A) had procured to be discounted by the Bank of Commerce, in Buffalo, with a bill of lading as collateral; and the Bank was refusing to deliver the bill of lading until the time draft was paid; and he (B) was trying to get the bill of lading in that case, and suggesting to A to consign to his (B’s) “ care” instead of “notifying me.”</p> <p>HELD THAT</p> <p>(1.) A, upon the purchase, became the owner of the goods, with full power and authority to dispose of it as he saw fit.</p> <p>(8.) A, by his transaction with the Bank, transfered his title and ownership to the Bank,</p> <p>fl. BILL OF LADING.</p> <p>1. Special endorsement—effect of, as to the passing of-TITLE BY DELIVERY OF THE BILL OF LADING, OR BY ITS INDORSEMENT AND DELIVERY.</p> <p>(a.) Upon a bill of lading whereby wheat was shipped by A. consigned to 0, at the City of New York, to be delivered to. C or~ its order, on payment of freight and charges, C indorsed a letter. • directed to B, stating that the bill of lading, with insurance outlie same, were pledged to it (C), as security for the payment-, of an accompanying draft drawn on him (B!; and that the - property was placed in his (B’s) custody in trust for that purpose, and that it was not to be devoted to any other use until) the draft was paid; and that upon his (B’s) accepting and pay? ing the draft, its (C’s) claim would cease. C sent the draft t with the bill of lading attached to its correspondent at New.York, who presented the same to B, who accepted them,., and.. detached and retained the bill of lading and certificate of insurance annexed. B did not pay the draft.</p> <p>HELD,</p> <p>The property in the wheat did not pass to B.</p> <p>(5.)' On or shortly after the arrival at New York of the boat on which the wheat was shipped, but before its delivery to any consignee, B procured a sample thereof and sold the cargo by such sample at the Produce Exchange, to D, who knew that the cargo was afloat and had not been delivered to any consignee. B, by producing to the carrier’s agent the aforesaid bill of lading, prevented a delivery of the wheat to D.</p> <p>HELD</p> <p>The draft having been dishonored that D acquired no title to or property in th» wheat as against 0.</p> <p>III. USAGE, INADMISSIBLE.</p> <p>1. "PKOOF OF USAGE, WHICH WOULD AID B OB D TO MAKE TITLE</p> <p>TO THE WHEAT, IS INADMISSIBLE.</p> <p>Because it cannot be invoked to change the established rules of law, or to change or modify the express terms of the contract.</p>

This action is a part of the litigation growing out of the agreement, in substance set forth in Belmont v. Ponvert (35 N. Y. Super. Ct. 208).

<p>I. Witness.</p> <p>1. IMPOSSIBILITY OF FACTS SWORN TO, DISCREDITING BY.</p> <p>(<t) Impossibility in part only, not.</p> <p>Where the evidence shows that the fact sworn to is in part true and in part erroneous, arising from mistake or miscalculation or excusable exaggeration, the witnesses, as to the fact, are not wholly discredited.</p> <p>H. Reversal op judgment.—What not cause eor.</p> <p>1. Verdict for less, than plaintifi is indisputably entitled to, is not cause for reversal on appeal by defendant, if that be the only error.</p>

The appeal was taken from a judgment entered in favor of plaintiff against defendants, upon the report of a referee. The case was tried before Henry E. Howland, as referee.

The action was brought for the recovery of $100,000 damages for an alleged libel, published in the Sun, April 18, 1877. Defendant demurred, on the grounds stated in the opinion.

<p>Appeal from judgment entered on verdict for plaintiff, and from an order denying defendants’ motion for a new trial.</p>