Volume 11 — Abbott's New York Practice Reports

<p>Motion to set aside warrant of attachment as unauthorized by law.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss appeal. Jnlia King, for whom Sarah A. Wood, administratrix, was substituted, sued Erastus B. Phillips in the supreme court, for assault and battery. The facts material to the decision are stated in the opinion.

<p>Appeal from an order made on a motion by defendants, to . substitute an adverse claimant of the fund in suit as defendant.</p> <p>The decision of the motion is reported 8 Ante, 354.</p>

<p>Appeal from a judgment.</p> <p>The facts are fully stated in the opinion.</p>

Mandamus, and action in the nature of quo warranto. The mayor of the city of New York with the consent of a majority of the Board of Aldermen, removed .the defendant from the office of city chamberlain, and appointed Mr. Platt, the plaintiff, in his stead.

<p>GrUAKDIAtf. —ApMIXISTRATIOlf.—POLICY OE STATUTE.</p> <p>The guardian of a minor son of an intestate is not entitled, under the provisions of 2 Rev. Stat., 74, §§ 27, 28, 33, to letters of administration, in preference to an adult daughter, whether in cases of intestacy or of administration with the will annexed.</p> <p>The policy of the statute is to grant administration directly to those most interested in the estate, and the appointment of representatives of persons entitled is purposely preferred to strangers only.*</p>

John McGinn sued Joseph Ross, in the New York superior court, to recover the balance of the purchase money, due on the sale of a stock of goods and fixtures in a store. The facts of the case were as follows : On March 29, 1865, Branigan, the plaintiff’s assignor, sold and delivered to the defendant, for a consideration of four thousand dollars, the property in question.

The object of this action, which was brought by Daniel B. Bush, and others, in the supreme court in Monroe county, against Henry R. Treadwell, was to have the title to certain real estate in the city of New York declared to be in plaintiffs,—on the ground that the deed conveying the title to defendant was a mortgage,—and for a conveyance thereof to the plaintiffs, and an accounting by the defendant.

The action was brought to restrain defendant from infringing plaintiff’s trade-marks or name. Plaintiff recovered judgment, which was affirmed at general term, 10 Ante, 264; and defendant appealed to the Court of Appeals, and gave security to stay plaintiff’s proceedings. Meanwhile he continued his use of the trade-mark or name; and plaintiff how moved for an attachment for contempt.

This action was brought in the supreme court, by William 0. Kain against Franklin H. Delano and Peter B. Olney.

Motion to continue a temporary injunction; and trial by the court. This was an action brought by the plaintiff in his own right, and as a trustee of Sarah Huyler and Maria E. Richards, against The Northwest Protestant Reformed Dutch Church in the city of New York, to restrain them from removing from the plaintiff’s vaults in the churchyard, the remains of deceased persons reposing there, to compel them to restore such remains if they had been removed, and for damages.

Motion to dismiss an appeal for want of jurisdiction. James H. Lake, plaintiff and respondent, sued Wilson Kels, defendant and appellant, in a justice’s court; and having obtained the judgment from which the appeal was taken, he now moved in the county court to dismiss the appeal. The facts are stated in the opinion.

<p>Motion to compel purchaser at a judicial sale to take a conveyance.</p> <p>The facts are stated in the opinion.</p>

John H. Woodgate brought this action against Abraham Fleet and his wife, the loan commissioners of Queens county, and Albert Ayres, in order to have his title to certain lands declared, and the priority of the equities in relation thereto decided.

This action was commenced in March, 1859 ; the complaint charged the defendants with an indebtedness of $141,586, for moneys fraudulently obtained from plaintiff between the first day of January, 1849, and the 16th day. of March, 1858, by means of overdrafts and false entries in the books of account of the plaintiff, in collusion and with the aid of a book-keeper in the employ of the plaintiff during that time.

Habeas corpus to inquire into the detention of Catharine' Forbes, who was imprisoned on a summary conviction as a vagrant. The facts are stated in the opinion.

Habeas corpus to inquire into the detention of Wm. M. Gray, who was imprisoned on a summary conviction as a vagrant. The facts are stated in the opinion.

<p>Motion to remit an indictment to the general sessions.</p> <p>The facts are stated in the opinion.</p>

<p>Arrest.—Execution against the Person.</p> <p>After an order of arrest has been discharged on motion, the defendant is not liable to arrest on execution against the person, though on his default at the trial a special verdict is found, stating that he was guilty of the fraud charged in the complaint.</p>

David H. Lantz brought an action against George A. Buckingham, upon the following facts. The defendant, being the owner of a lot in Greenwood Cemetery, conveyed the same to the plaintiff by an absolute conveyance. The plaintiff executed at the same time to the defendant an instrument in writing, reciting the conveyance and agreeing to reconvey the same to the defendant, on repayment to him of the consideration money, with interest, in one year.

Motion to set aside judgments. These were motions made by the corporation counsel, and by the comptroller of the city, proceeding under the Laws of 1859, ,ch. 489, § 5, to set aside three judgments obtained against the city. The first judgment was in a suit brought, in which the People and Taylor & Brennan were plaintiffs, to recover from the city and its lessees the possession of lands. The proceedings in this action are recounted in the opinion of the court.

This was an application by the petitioner, Charles Lembke, to be discharged from imprisonment on an execution issued against the person of the defendant upon a judgment obtained July 30, 1870, in favor of Albert Berger and others, plaintiffs,- against the petitioner, defendant in that action, entered by default for want of an answer.

Motion to vacate a judgment. Josepli P. Merrill sued Florence A. Merrill for a divorce, a vinculo matrimonii. The defendant answered the complaint, denying the charge of adultery therein set forth, setting up condonement, and charging adultery on the plaintiff. The plaintiff replied to the answer denying the condonement, and the adultery charged against him.

Motion to dismiss the complaint. James W. Anderson, as receiver, brought this action against the Glenville Woolen Co., Joseph Ripley, and Alexander J. Cameron. Ralph H. Isham and John Orser, sheriff of New York county, brought a cross action against Andrews, the receiver, and Firmin Cousinery and William Craig, on whose motion and in whose suit Andrews had been appointed receiver.

<p>Dismissal of Complaint.—Reglect to Prosecute.—Costs.</p> <p>The fact that defendant has actually noticed the cause for trial, does not preclude him. from moving to dismiss the complaint for unreasonable neglect on the part of plaintiff to proceed.</p> <p>What is such unreasonable neglect.</p> <p>When, in granting an order dismissing the complaint for plaintiff’s neglect to proceed, leave is reserved to him to bring the cause to trial on payment of costs, the costs should include all the costs to which defendant is entitled up to that time.</p>

Motion to have action continued. This action was brought in the name of John Orser, late sheriff of the county of New York, against the Glenville Woolen Co., Joseph Ripley, Alexander J. Cameron, and Joseph H. Isham. The facts of the case are given in Andrews v. Glenville Woolen Co. (ante, p. 78).

Motion, to substitute a different plaintiff and different attorneys. Two actions were brought in the superior court in October, 1855, by the Grlenville Woolen Co. ; one against Joseph Ripley and the other against Alexander J. Cameron, to enforce the payment of subscriptions alleged to be due the company. In November, 1855, in an action brought in the supreme court by R. Gr. & J. Gr.

This was an action to restrain the defendant, a constable, from executing a warrant to dispossess the plaintiff obtained in summary proceedings to recover possession of certain premises. The facts are fully disclosed by the opinion.

The New York and Harlem Railroad Company leased from Elbert S. and Elizabeth Kip the premises lying between Forty-seventh and Forty-eighth-streets and Fourth and Lexington-a venues, in the city of New York, for a term of twenty-one years, from December 1, 1858. In November, 1869, the company filed their petition, under the amendment to the general railroad act (Laws of 1869, 441, ch. 237), to acquire the title in fee of the land for the purposes of a depot.

Habeas corpus to inquire into the detention of James Divine. The prisoner was committed on conviction of petit larceny, at a Court of Special Sessions in the city of New York. The facts are fully stated in the opinion.

Trial by the court. The action was brought to recover damages for not fulfilling a contract for the purchase from plaintiff* of certain stock. The time of the making of the alleged agreement was prior to the act of 1858 (Laws of 1858, 251, ch. 134), repealing the Statute prohibiting stock-jobbing. (1 Rev. Stat., 710.) The plaintiff was not the owner of the stock at the time of making the agreement, nor was he in possession of it.

<p>Motion for an injunction.</p>

Action of ejectment. This action was brought to recover possession of part of the Old Port Military and Parade Ground, in Oswego.

<p>Appeal from an order.</p> <p>The facts of the case are as follows : On March 8, 1864, the will of Sarah L. Marvin, in which Le Grand Marvin was named as executor, was admitted to probate by the surrogate of Erie county. George L. Marvin, one of the heirs at law of the deceased, contested the probate and appealed to the supreme court, where the will was declared void, and the surrogate directed to annul the record and probate of the alleged will. On appeal, the judgment was affirmed by the court of appeals, and the remittitur from that court having been filed in the supreme court, and judgment having been had thereupon, the surrogate decreed the annulment and revocation of the record and probate of the will, and decreed the payment by the proponent, to the contestant, of all the costs of the proceedings, reserving, however, for a future hearing, the question whether they should be paid by him personally, of charged on the estate. He also ordered the proponent to file an inventory of all the goods, &c., of the intestate, which had come into his hands, stating, according to his knowledge, information and belief, what had become of them. From this decree, Le Grand Marvin (executor, &c.), Francis G. Lockwood (trustee named in the alleged will), and Anna Savage and Jane Lockwood (legatees), appealed to the supreme court and gave a bond for costs of the appeal. That part of the penal clause which is material to the decision, was in the following form:</p> <p>‘ ‘ Supreme Court.</p> <p>“ Know all men by these presents: That we, Edmund B. Vedder, and Charles E. Shepard, of said city, are held and firmly bound unto the people of the State of JVew YorJc, also to George L. Marvin, of Buffalo city, &c. ”</p> <p>The condition was, “that if said appellants shall diligently prosecute such appeal, and pay all costs that shall be adjudged against them in the event of their failure to obtain a reversal of the decision so appealed from, then,” &c.</p> <p>The respondent moved at general term for a dismissal of the appeal, on the ground, among others, that a proper bond had not been given. The motion was granted, on condition that the respondent should, within ten days, file with the clerk of the court a stipulation that the decree appealed from be modified by striking out all relating to the inventory, and that he should pay ten dollars costs of the motion. The respondent stipulated, and paid costs accordingly, and the appellants appealed to the court of appeals.</p>

<p>Appeal from an order.</p> <p>This action was brought by George L. Marvin and wife, as heirs at law of Sarah L. Marvin, against Le Grand Marvin and others, executors and legatees under her will, for the partition of the real estate of which she died seized. The action was brought pursuant to Laws of 1853, p. 526, ch. 238, § 2, which provides that: “Any heir or heirs claiming lands, tenements or hereditaments by descent, from an ancestor who died holding and being in possession of the same (whether such heir or heirs be in possession or not), may prosecute for the partition thereof, notwithstanding any apparent devise by such ancestor, and any possession held under the same devise, provided that such heir or heirs shall allege and establish in the same suit, action or proceeding, that such apparent devise is void.” The complaint alleged, 1. Seizin and death of Sarah L. Marvin, leaving George L. Marvin and Le Grand Marvin her sole heirs at law. 2. That Le Grand Marvin had presented for probate, a paper (which was set forth), purporting to be the last will and testament of Mrs. Marvin, under which the defendants claimed. That in fact it was not duly executed by her, and that her execution thereof was obtained by fraud.</p> <p>It contained no allegation of ouster.</p> <p>The relief demanded was that the pretended devise be declared null and void ; that the defendants be enjoined from setting up said devise, and that the premises be partitioned between the heirs at law. The plaintiff obtained a judgment, which was affirmed at general term, and by the court of appeals.</p> <p>After this, the defendants moved for a second trial of the action, under the statute for granting new trials in actions of ejectment (2 Rev. Stat., 309, § 37). The motion was denied, and the order denying the motion affirmed by the court at general term, whereupon the defendants appealed to this court.</p>

Petition for leave to file a supplemental complaint to continue the action against the heirs at law of the defendant. This was an action in the nature of ejectment, commenced in 1848. A verdict and judgment was rendered in favor of the defendant, which was affirmed at general term. The Court of Appeals granted a new trial; but while the appeal was pending in that court, the defendant died, leaving children.

The relators, Josiah B. Blossom and others, applied for a mandamus against Hon. Homer A. Nelson, secretary of state, to compel him to file in his office the certificate of incorporation of an alleged benevolent society. The court at special term denied the motion. See 10 Abb. Pr. N. S., 200, for the decision rendered on making that order, and for the facts of the case. From that order denying the motion, the relators appealed to the court at general term.

<p>Supplementary Proceedings.</p> <p>In what case a third party examined in supplementary proceedings is entitled to costs.</p>

William H. Platt and others, executors of Nathan C. Platt, deceased, brought an action in the supreme court against George W. Platt, for the purpose of setting aside releases and conveyances made by Nathan 0. Platt to the defendant.

<p>Parties.</p> <p>The court will not order new parties-defendant to be brought in against the will of the plaintiff, unless their presence is necessary to the determination of the action.</p>

<p>Undertaking.—Insolvency of Surety.</p> <p>The court will not require a party who has given security with two sureties, as the condition of a favor shown by the court, to renew the security merely because one surety has become insolvent.</p>

This action was brought by Carl Holm against Christopher C. Wust, in the Brooklyn city court, to recover possession of an abstract of title to certain premises owned by plaintiff, which it was alleged defendant wrongfully withheld. Plaintiff was about to execute a mortgage on the' property to a Mrs. Cutler, who had employed defendant, who was an attorney, to search the title.

This was an action brought by a husband and wife to recover for an assault committed upon the wife. The plaintiff obtained an order of arrest; which the defendant now moved to vacate.

Pursuant to chapter 407 of the Laws of 1855, the Commissioners of Records incurred expenses in executing the duties devolved upon them, and made contracts for copying and printing the Indexes of Records in the register’s office; and, in 1859, made application to the Board of Supervisors to raise the amount necessary to enable them to complete their duties under the statute. The Board of Supervisors refused to do so, on the ground that the act of 1855 was unconstitutional.

<p>Appeal from an order.</p>

This action was brought by Duncan, Sherman & Co., to recover one thousand dollars, paid under a mistake to the deputy sheriff, in an attachment suit in which the present defendants, Jacob Berlin and others, were plaintiffs. In January, 1866, a suit was commenced in the supreme court by Berlin and others against Hamilton Blagge & Co., to recover about sixteen hundred dollars.

<p>Arrest.—Fraud in Contracting Debt.</p> <p>Where defendant after having borrowed money on a promise to apply it to a specific use, converted it to another.</p> <p>Held, that he was liable to arrest for a fraud in contracting the debt.</p>

This action was upon a note dated September 17, 1868, payable in four months, for two hundred and ninety-three dollars and eighty cents, made by defendant, J. M. Keep, indorsed by the defendants T. N. Hickox, N. I). Redhead and D. C. Brown, to the defendant James D. Vail, and by him transferred to the plaintiffs Mason and Von Au.

The plaintiff moved to strike out the answer of defendant, and after the motion had been argued and submitted to the court, he died.

The substance of the complaint is stated in the opinion. The defendants severally demurred to the complaint, on the ground, among others, that it did not state facts sufficient to constitute a cause of action. These demurrers were overruled by the special term, with, costs. The case is reported, 6 Ante, 270, note. From these orders overruling the demurrers, the defendants appealed to the general term.

<p>Quo Warranto.—Title to Oeeioe.</p> <p>An action in the nature of quo wwrranto, to determine the title to a public office, will not lie before the commencement of the term of office.</p> <p>The court can only give judgment of ouster; and this can only be done when an existing usurpation is shown.</p>

<p>Motion to set aside a judgment by confession.</p>

<p>'Appeal from a judgment of the Hew York Marine Court.</p>

Motion to continue until the hearing ‘a preliminary injunction previously issued, restraining the defendant from removing the iron rails upon some twenty miles of the eastern portion of its road. In 1851, a corporation, known as the Albany Northern Railroad Company, was organized under the general railroad act, to construct a railroad from the city of Albany to Eagle Bridge, in Rensselaer county.

The action was brought by Russell D. Miner against Annie M. Beekman, Hugh Crombie and others, to redeem five lots of land in the city of New York, situated on Fourth-avenue between Eighty-fifth and Eighty-sixth-streets, from the lien of a mortgage, and to re-* cover possession. The complaint alleged: That Isaac M. Woolley, the owner, and his wife, made a mortgage upon said premises to Leonard W. Lawrence, November 3, 1838, to secure one thousand dollars, payable in one year.

<p>Habeas corpus to inquire into the cause of detention of Israel Kahn.</p> <p>The facts are stated in the opinion.</p>

In this cause a commission to take testimony in England had been obtained by plaintiff, and executed in the course of the proceedings. The plaintiff’s notice of taxation of costs, included as one item, commission-fees, $192.12, and his affidavit to disbursements, was merely in the ordinary form, that the foregoing disbursements have been, or may be necessarily made or incurred, in the action.

Demurrer to complaint. This was a suit against the proprietor of the New York Times for a libel; consisting in an article containing certain statements relative to the plaintiff’s conduct in matters in which he had been employed as a lawyer. The case came up before Justice Hoffman, in the Superior Court, on demurrer by plaintiff to the defendant’s answer.

The action was for an alleged invasion of the plaintiffs’ right to the use of the word “ Cocoaine,” with certain devices, constituting a trade-mark.

<p>Assessment.—Municipal Ordinance.—Court.</p> <p>An ordinance of a municipal corporation, passed by one board at one session, but not passed by the other until the next session, is not duly passed, and is void.</p> <p>A subsequent amendment, duly passed, does not operate to give validity to the ordinance.</p> <p>Such objection to an ordinance authorizing an assessment, is a “legal irregularity” within the act of 1858, allowing assessments in the city of New York to be set aside.</p> <p>That act is not unconstitutional as conferring any new office or trust on the justices of the Supreme Court.</p>

Motion to vacate a temporary injunction, and to set aside a writ of ne exeat.

Motion to quash return. The facts in this controversy fully appear in the report of a previous proceeding, 10 Ante, 321.

Demurrer'to complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The substance of the complaint is contained in the following opinion.

Trial by the court. This action was brought by John W. Thompson and William A. Wait against the Erie Railway Company and the Farmers’ Loan and Trust Company. As originally commenced, it included as defendants the directors of the Erie Railway Company. Before proceeding to trial the plaintiffs discontinued as to such persons, and amended their complaint, limiting its allegations to the two defendants above named.

<p>Appeal from an order at special term, confirming the report of commissioners of estimate and assessment, in the matter of the application of the Mayor, &c., of the city of New York, to open Fourth avenue.</p> <p>The facts are fully stated in the opinion.</p>

Chauncey M. Felt, who was, at the November election in 1871, a candidate for the office of áuditor of the city of Brooklyn in the county of Kings, applied for and obtained from the court an order that the board of county canvassers of the county of Kings show cause before the special term “why a mandamus should not issue directing the said board to throw out and not to canvass the pretended returns of the inspectors and canvassers of election for the first election district…

In the voluminous moving papers of the plaintiff, it was shown that, in 1850, Charles Goodyear, who had then recently invented his processes of vulcanizing india-rubber, applied to the plaintiff, and solicited him to take an interest in the development of the new invention in its applications to educational apparatus.

Petition to transfer a lunatic to his home in India. The petition was presented in the name of Heera Baee, wife of the lunatic ; and the proceedings entitled “in the matter of Bomanjee Byramjee Colah, a lunatic.” The facts are stated in the opinion.

The complaint alleged that on March 30, 1859, the plaintiff possessed and owned certain personal property of the value of $640, and on or about that day, the defendant obtained such property, and wrongfully converted it to his own use; that before the commencement of this suit, the plaintiff demanded'it of the defendant, who refused to deliver it; whereupon, judgment was demanded for $640, with interest from April 12, 1859, the day of making such demand.

<p>Will.—Under Influence.</p> <p>Before a will, the execution of which, was obtained from the testator by the party claiming under it, under circumstances indicating undue influence, can be admitted to probate, it must appear affirmatively that it was made by the testator when he had intelligence to comprehend its provisions, and independence to adopt or reject them.</p> <p>If the provisions of a will executed by an old and feeble man, differ from his previously expressed intentions, and differ in favor of those who stood in confidential relations with him, it is evidence of fraud and undue influence, which must be overcome by the most satisfactory testimony that the testator understood its provisions, and acted freely.</p>

The plaintiff in this action had obtained an injunction, under section 219 of the Code, restraining a sale of the real property of his debtor, one of the defendants, under judgment and execution in favor of another defendant.

<p>Foreclosure.—Wbit of Assistance.</p> <p>Upon a sale in foreclosure, the court gives possession to the purchaser as against all persons who are parties to the suit, or who came into possession under either of them pending the suit, but does not undertake to remove persons</p> <p>who go into possession after the purchaser has received, his deed, and conveyed the premises to another.</p> <p>One who enters over fifteen months after the sale, is not to be deemed as having entered pending the suit, and cannot be removed by a writ of assistance, though he entered under a party to the suit.*</p>

Demurrer to answer. This was an action brought against the defendant, as sheriff of the city and county of New York, to recover the amount of a debt owed to the plaintiffs by one Jacob Cohen, who escaped from the custody of the sheriff. The defendant put in an answer, averring that the escaped debtor had been in some respects wronged by the plaintiffs, and that he was insolvent, and could not have paid the debt, even had he been detained longer.

<p>Motion for judgment on answer as sham and frivolous.</p> <p>The facts are stated in the opinion.</p>

The complaint alleged that the defendant, in commencing his addresses to the plaintiff, stated to her that liis former wife was dead.

<p>Divorce.—Pleading.</p> <p>A complaint in an action for separation from bed and board, which does not specify particularly the nature and circumstances of the complaint relied on, and set forth times and places with reasonable certainty, is bad on demurrer.</p> <p>A decree declaring a marriage contract void, cannot be granted on a complaint which demands no other relief than a separation from bed and board, unless the defendant has answered.</p>

Motion to set aside execution issued out of this court on a judgment docketed in the office of the county clerk, on a recovery in the marine court.

<p>Motion to discharge order of arrest, for insufficiency of proof on which the order was issued.</p>

Demurrer to complaint. The plaintiffs brought this suit against the directors of the ■ Hew York City Fire Insurance Company, to hold them personally liable for the amount due on a policy of insurance issued by the company to the plaintiffs upon their printing and publishing establishment.

An order of arrest was obtained in this case on two affidavits. The first was made by Henry E. Bowen, who stated the incorporation of the plaintiff, that he was its secretary, that the firm of Hayward & Cantrell were indebted to the plaintiff in the sum of two hundred and ninety-four dollars eighty-four cents, on a promissory note made by them, payable one month after date.

This action was brought to charge the separate estate of a married woman with the payment of a debt alleged to have been contracted by her on the faith or for the benefit of it. The court at special term dismissed the complaint, on the ground that the amount of the alleged debt was less than $100. From the judgment thus entered, plaintiff appealed to the general term. A similar case between different parties came before the court at the same time, and in the same manner.

Trial for homicide, and writ of error. The prisoner, Edward H. Ruloff, was indicted for murder in the first degree, for the felonious shooting with malice aforethought, of Frederick A. Mirrick, on August 17,1870, in the city of Binghamton, Broome county.

The plaintiff in this action failed and suffered judgment against her for costs, on the ground of a former settlement of th.e matters in controversy. After the judgment was recovered, a commission of lunacy was issued against her, and she was by the inquisition declared to have been insane for a long period, which overreached the time of the alleged settlement.

Motion by defendants for an attachment, and also for a writ of restitution. John W. Fdmonds, for the plaintiff, objected to the motion being heard, on the ground that the papers served were not folioed as required by rule 20 of the rules of this court. TFro.

Motion to set aside execution. Judgment was entered against defendant by default for $4,583.62. Subsequently plaintiff’s attorney gave defendant notice in writing, that he claimed a lien on the judgment for his counsel-fee of $100, over and above the costs. After service of that notice, plaintiff and defendant, without the knowledge of the plaintiff’s attorney, settled the suit, and plaintiff gave defendant a satisfaction-piece, which was duly filed in the clerk’s office.

The action was originally commenced against the defendant intestate to recover an indebtedness on contract. After issue joined, the original defendant died, and the present defendant was appointed his administratrix. Plaintiff, instead of presenting his claim to the administratrix, applied for and obtained leave to continue the action against her by supplemental complaint. He proceeded therein to judgment.

<p>Demurrer to complaint.</p> <p>The facts are stated in the opinion.</p>

<p>Building Company.—Individual Liability of Stockholders.</p> <p>A stockholder in a building company formed under chapter 122 of the Laws of 1851, who has made advances or incurred liabilities for the benefit of the corporation, may, when called upon to respond to his statutory liability, set off such advances or liabilities in extinguishment thereof.</p>

<p>Costs.—Appeals in Marine Court.</p> <p>What costs may be allowed by the New York Marine Court on appeals, and by the Common Pleas, on appeal from that court.</p>

<p>Appeal from order denying motion to vacate arrest.</p> <p>The moving papers were very voluminous, but their contents are stated in the opinion of the court.</p>

Demurrer to complaint. The action was brought by plaintiffs, who were attorneys and counsellors at law, to recover for services and disbursements.

The relators obtained an alternative mandamus requiring the aldermen to take action, and pass upon or confirm the award of a contract to the relators for cleaning the streets and avenues of the city of New York for the term of five years, or show cause, &c. The aldermen returned that they had taken action thereon, and had refused to confirm the award of the contract. ■' The relators insisted that the bid made by them was the lowest offered; that the inspector had awarded…

<p>Protest op Hote.—Complaint against Indorser.</p> <p>Notice to an indorser of a note of non-payment thereof, is not sufficient to charge him. He must have notice of presentment or demand and non-payment.</p> <p>In a complaint against an indorser, an allegation that the note was duly presented and payment demanded, but it was not paid, and due notice of nonpayment was given, &c., is insufficient on demurrer.</p>

<p>Appeal from an order denying a motion to vacate an injunction theretofore granted against the defendants.</p>

Proceedings to open four several judgments recovered against the defendants by George Martin, Oliver Valentine, H. F. Gilmore, and Samuel FTusam, respectively. These actions were all originally commenced in the Marine Court, and the judgments were there obtained. Transcripts were then filed in the county clerk’s office, and executions thereon issued, as out of the Court of Common Pleas.

By the act entitled An act relative to the Law School of Columbia College,” passed April 7, 1860, it was enacted, that the professors in the Law School of Columbia College, and the law committee of the trustees of said college, are constituted a committee, any three of whom, being counsellors at law, shall form a quorum, upon whose examination and recommendation, as evidenced by the diploma of said college, granted upon such recommendation, any graduate of said Law School…

I. May 15, 1871. Motion by defendant for an additional allowance of counsel fee. Frank Leslie sued Sarah Ann, Ms wife, in this court, for an absolute divorce, on the ground of adultery. The previous proceedings in the case, are reported in 6 Abb. Pr. N. S., 193, and 10 Id., 90. • The facts material to the present application appear in the opinion.

Motion to amend a verified answer. This action was brought to recover thirty thousand dollars, which Cyrus Strong, the plaintiff, alleged that Walton Dwight, defendant, obtained of him by reason of false and fraudulent representations which defendant made to him in 1867, respecting the- price defendant t was to pay for a large track of land in Canada, and the quantity and value of the pine timber on said land, plaintiff claiming the defendant represented that the land was to…

This action was brought against Daniel Herbert and others, by Michael Hallaban, assignee of Jacob Demarest, to enforce a mechanics’ lien. The facts appear in the opinion. Judgment at special term was given for plaintiff, and defendants appealed.

• Andrew S. Stone and others recovered in this court on the 30th day of January, 1858, a judgment against Bufus Sanger (the defendant above named) for $3,389.19, on which an execution was issued, and returned unsatisfied.

<p>Motion to dismiss the appeal for want of prosecution.</p> <p>The papers used on the motion showed that the judgment roll was filed on June 30,1870, and that on November 6, 1871, the respondent; on motion, had obiained an order at special term, declaring the case upon appeal abandoned;</p>

<p>Costs.—Trial Fee.—Judgment on Pleadings.</p> <p>Where an application for judgment on a pleading as frivolous, under section 247 of the Code, is granted,but reserving leave to plead over, the moving party is entitled to costs of a motion only.*</p>

<p>Costs.—Trial Fee.—Judgment on Pleadings.</p> <p>Where an application for judgment on a pleading as frivolous under section 247 of the Code of Procedure, is granted absolutely, without leave to plead over, the successful party is entitled to costs of the cause, before and after notice, and a trial fee.*</p>

<p>Motion to set aside execution.</p>

<p>Appeal from order refusing to dismiss a complaint and directing a verdict.</p> <p>The complaint of the plaintiff, Bernard Samuels, against John McDonald, Robert Murray, Cornelius Yan Ness and Nicholas Muller, named as defendants therein, alleged as follows:</p> <p>That on May 24, 1867, the plaintiff arrived at the port of New York from Liverpool, in the steamer Manhattan, having in his possession several trunks and other personal effects, the property of the plaintiff.</p> <p>That upon such arrival, and before the said steamer had come to any wharf in the said port, the above named defendants, by their servants and employees, boarded said steamer by means of a small steamboat, and then and there, the defendants, claiming to act under some contract, license or permission from the commissioners of emigration, a corporate body established by and under the laws of the state of New York, did, without obtaining the consent of the plaintiff, but claiming the exclusive right to carry and convey the baggage and personal effects of passengers from said steamship to the city of New York, take into their possession the said trunks and personal effects of the plaintiff, and undertook to carry and convey the same safely to the city of New York, and there safely keep the same in the premises occupied by the defendants at Castle Garden, in said city, charging as compensation therefor, the sum of ten cents for each package not taken away by the owner within forty-eight hours.</p> <p>That among the said trunks and chests of the plaintiff taken possession of by the defendants, as aforesaid, was a chest containing a large quantity of clothing and other articles, of the value of about thirteen hundred dollars.</p> <p>That the plaintiff has repeatedly demanded the said trunk last mentioned, from the employees of the defendants at the usual place of delivery of such articles, and has offered to pay the sum charged by the defendants for the care and custody thereof; but the defendants neglected and refused to deliver the same to the plaintiff, and admitted their inability to deliver the same, whereby the same has become wholly lost to the plaintiff.</p> <p>Wherefore the plaintiff demanded judgment against the defendants for his damages to the amount of fifteen hundred dollars.</p> <p>The defendant, McDonald, alone was served with process, and his answer constituted, in effect, a general denial.</p> <p>By stipulation in writing between the plaintiff and the defendant McDonald, the summons and complaint were amended by the striking out of the name of Robert Murray, as one of the defendants, and inserting the name of John Daly as defendant, in lieu of said Murray.</p> <p>The action was tried before a judge and jury.</p> <p>At the close of plaintiff’s case, defendants’ counsel moved for a dismissal of the complaint, for the reasons:</p> <p>1. Because, by the statutes, the defendants were the mere servants of the commissioners of emigration, and could not- be made liable for any baggage delivered into Castle Garden until it was checked by the railroads represented by the agency.</p> <p>2. Because the complaint alleged a delivery to defendants on board of the vessel, which had not been proved, and such allegation could not be sustained by proof of delivery in the Garden:</p> <p>3. That, if these defendants were liable at all, it was a joint liability which could not be severed, and all must be sued and served, or the action could not be maintained.</p> <p>3. That, by statute, these defendants could not be made liable for any city baggage not intended for inland transportation, this baggage being under the sole control of the commissioners of emigration.</p> <p>• The court denied the motion, to which defendant’s counsel duly excepted.</p> <p>The evidence thereupon introduced showed that at the time alleged, to wit, May 34, 1867, the defendants McDonald, Yan Ness and Daly were jointly engaged in a kind of business in the interior of Castle Garden, which appeared to have been as follows:</p> <p>McDonald represented the Pennsylvania Railroad, Yan Ness the Erie, and Daly the New York Central. For the benefit of those roads in soliciting travel, and their convenience in booking passengers and receiving and checking their baggage, these parties, known as the railroad agency, were admitted into Castle Garden for that purpose, to the exclusion of all other parties. These railroad agents (the defendants) derived a profit by way of a commission or allowance upon the tickets sold by them. It appeared that the commissioners of emigration allotted to these agents a portion of their premises, in which to transact their business, arid imposed- upon them as a consideration of the privileges accorded to them, the duty of receiving,' taking charge of and delivering the baggage and effects of the immigrants who intended to remain in the city as well as of those who purchased tickets for those railroads; and the commissioners allowed the defendants to charge ten cents for each package which remained in their custody over forty-eight hours, according to one witness, or twenty-four hours according to defendants’ testimony: The money thus received went to the individual benefit of the defendants, and made part of a general fund, which, after paying the- expenses of labor, etc., was divided among them. If the expenses had exceeded the profits, the defendants would have had to pay them.</p> <p>It also appeared that under another regulation made by the commissioners of emigration it was the duty of Captain Hall to convey the baggage of the immigrants from the steamer to Castle Garden, and that the employees of Captain Hall checked such baggage before it was taken from the steamer.</p> <p>After the close of the evidence on both sides, plaintiff’s counsel moved to strike out the name of Nicholas Muller in the complaint, as he had put it in on the information that he was one of the railroad agents at the time the baggage was lost, and it appeared from the testimony in the case that he was not an agent at that time.</p> <p>The court granted the motion, to which defendant’s counsel duly excepted.</p> <p>The defendant’s counsel then requested the court to dismiss the complaint and to direct a verdict for the defendants, for the reasons urged by him on the motion for a nonsuit, and for the additional reason :</p> <p>That it appeared from the evidence that the defendants were the mere agents in all cases of either the railroad companies they represented, or the commissioners of emigration, and could not be personally charged in this case.</p> <p>The court refused so to do, to which defendant’s counsel duly excepted.</p> <p>The court, on motion of counsel for the plaintiff, directed the jury to find a verdict for the plaintiff against the defendants John McDonald, Cornelius Van Ness and John Daly, and the jury, thereupon, under the direction of the court, rendered a verdict for the plaintiff, and assessed the damages at eight hundred and seventy-nine dollars.</p> <p>The court then ordered that the exceptions taken by the defendants be heard at the general term of this court in the first instance, and that judgment in the mean time be suspended.</p>

<p>Motion to discharge an attachment against the property of the defendant as a non-resident debtor.</p>

Dismissal of complaint. This action was brought to recover the amount of a certain mortgage on two lots now appropriated as a portion of the site for the new reservoir. The plaintiff, who was mortgagee, had no notice of the proceedings, by which the lots were taken into jiossession by the city except by publication.

<p>Attachment.—Action fob the Recovebt of Money.</p> <p>An attachment, as a provisional remedy under the Code, may issue as well in actions to recover damages for wrongs, as in actions of contract, when defendant is not a resident of the State, or has departed with intent to avoid service, or keeps himself concealed with that intent. An action to recover damages for a wrong is deemed an action for the recovery of money.</p>

Application to require an assignee for the benefit of creditors to render an account, and pay accordingly, under the act of 1880. The facts are fully stated in the opinion.

<p>Appeal from order, at special term, denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action.</p> <p>The complaint alleged a conversion of certain stock deposited by James E. Lyon, plaintiff, with the defendants, James M. Isett and others.</p> <p>At the time of said motion the trial of the action was pending before a referee. The motion was denied upon the sole ground that it appeared to the court “that the suit is in tort for the wrongful conversion of property, and that no recovery can be had therein, except in tort, and that said discharge would not, in any event, be a bar,” &c.</p>

<p>Appeal from order made at special term, denying motion to vacate order of arrest.</p> <p>This action was brought against the three defendants, Bogart, Jefferis & Jackson, to recover for goods obtained from the plaintiffs upon fraudulent representations. Plaintiffs obtained an order of arrest upon affidavits which alleged that the action was brought to recover the price of certain goods, describing them, sold and delivered by the plaintiffs to the defendants on a day and for a price specified, the price whereof became, by the terms of sale, payable thirty days from the time of sale, but that defendants had not paid any part of it; that defendants compose the firm of Bogart, Jefferis & Co., and have been heretofore, and now profess to be engaged in the auction business ; that they occupied a spacious store on Broadway, and by conspicuous signs invited the confidence of the business community.</p> <p>The affidavit then,set forth that on July 2, 1859, defendant Jefferis came to plaintiffs’ store and asked the price of Pennsylvania Knitting Company’s shirts and drawers; that he represented that they had a customer who would buy three hundred dozen of such goods. The plaintiffs refused to sell goods to be sold by defendants at auction, and Jefferis assured them they did not wish them to sell at auction, but had a customer who stood ready to take them at a price named. Upon the faith of these representations plaintiffs sold the goods, and delivered them to defendants.</p> <p>When the bill became due it was not paid, and on several successive occasions one of the plaintiffs called at defendants’ place of business, and on each occasion Jefferis promised that they would make payment in a short time, but they did not do so. On one of these occasions Jefferis being asked whom the goods were sold to, said he could tell, but it would not do any good. He was responsible, but was not known. On further inquiry he acknowledged that he had sent the goods to Baltimore, to one Byerly. He said they were sold on credit, and he would try to get the buyer’s note for plaintiffs. Upon this promise plaintiffs gave further forbearance.</p> <p>This promise being broken, Jefferis subsequently promised to pay cash, and when one of the plaintiffs accordingly called at defendants’ place of business, when he saw both Jefferis and Jackson, who both gave him to understand that they had been disappointed in remittances, and Jackson said that he would bring the money to the plaintiffs’ store on a specified day, and if it was not paid by that time they would take means to collect, adding that he would then explain why it was not paid before. On subsequent occasions Jackson assured, them that the money was perfectly safe, and there was no need of suing. In answer to an inquiry whether the goods which he had said were sold to Byerly, of Baltimore, were disposed of, Jackson said he did not know whether they were sold outright or not, or whether they could be got back or not, as Jefferis had managed the matter pretty much; and he then called Jefferis in to answer. In answer to the inquiry whether plaintiffs could get the goods back, Jefferis shook his head without saying any thing, and in answer to the question whether they were sold to Byerly, he said they were partly sold and partly not. In answer to an inquiry as to defendants’ solvency, he said they relied upon having every cent of their money. He said he could explain his transaction if he chose, but it would do no good. The affidavit also alleged, on information and belief, that the goods were not sold to Byerly.</p> <p>The affidavits further stated a very similar transaction by the defendants with the house of Britton & Co. at about the same time, in which transaction Jefferis and Jackson were the actors.</p> <p>On the plaintiffs’ affidavits, the defendant Bogart movéd to vacate the order of arrest as against himself.</p> <p>The motion was denied at special term, and the defendant appealed.</p>

Motion to allow appeal to the court of appeals, and consequent re-argument of the appeal. This action was brought by Michael Ahern to recover for services performed by him for the defendants. The action was brought in the district court of the first district of the city of New York.

This action was brought by Victor Vincent, a judgment creditor of the New York and. Galena Lead Mining Company, a corporation organized under the act of 1848, to charge the defendant, Alfred B. Sands, as a trustee of said company, with the payment of the debt, upon the ground that no annual report had been filed as required by law.

Motion to confirm an award. The parties in this case agreed to submit their matters in dispute to the arbitrament of two gentlemen, with authority “ to select a third party, not interested in the ice business, to decide any point of disagreement between them, whose decision shall he final.” The two arbitrators named in the submission afterwards executed an award, in which it is stated that they “ have, by the appointment of Mr. Geo.

Demurrer to answer. The action was brought by the lessors of premises in the city of Hew York, to recover from the assignee of the lessee an assessment which the lessors had been compelled to pay.

<p>Motion for new trial, on the minutes of the judge.</p> <p>The plaintiff having recovered a verdict in this action on the 14th day of June, 1860, the defendants, June 16, 1860, moved on the judge’s minutes for a new trial.</p> <p>This action was brought on the allegations that the plaintiff, in the early part of 1858, consigned to the defendants a specified quantity of wool, to be sold for and on account of the plaintiff, for cash; that the defendants received and sold the wool, but paid only $2,000 of the proceeds to the plaintiff, and refused to pay the balance. The complaint demanded judgment for the residue of the proceeds, which, including interest, the jury found to be $5,553.57.</p> <p>The defence relied on was, that one B. A. Sweet owned the wool; that it had been purchased for him, in Wisconsin, by one M. W. Sherwood, and with Sweet’s'money, on an agreement with Sherwood to forward it to Sweet, at Albany; that instead of doing so, Sherwood transferred it to plaintiff as security for antecedent advances, with notice of the rights of Sweet; that Sweet notified the defendants that the wool was his, and demanded that the' proceeds of it be paid to him, and that they had in part paid him such proceeds, except the $2,000 which they had paid to the plaintiff.</p> <p>The defendants, to show that the wool was Sweet’s, and that the plaintiff took it under circumstances giving him no right to it, called M. W. Sherwood as a witness.</p> <p>On his being sworn, it was proved that he was then in the custody of the sheriff of Saratoga county, on an execution against his body, issued on a judgment recovered against him by said Sweet, in the Supreme Court of this State, on the 14th day of February, 1860, for $4,334.43 damages, besides costs. That said Sherwood was so produced as a witness under a habeas corpus ad testificandum.</p> <p>The judgment-record of the suit of Sweet a. Sherwood, was put in evidence.</p> <p>The summons stated that in case of failure to answer, “ the plaintiff will take judgment against you (Sherwood) for $3,923tót, with interest from the 14th day of July, 1858, besides costs.”</p> <p>The complaint, which was verified on the 7th day of September, 1858, stated, that prior to the 9th of June, 1859, Sweet “ employed” Sherwood as his agent to purchase 20,000 pounds of wool for Sweet in the State of Wisconsin, and forward the same to Sweet, at Albany, “ Sweet agreeing to pay to Sherwood” either one-half the profits made on the sale of the said wool, or one cent per pound commission for “ Sherwood’s services, as he, the said Sweet, might elect.”</p> <p>That for that purpose Sweet, between the 9th of June and the 14th of July, 1858, furnished and advanced to Sherwood §6,000, and also one hundred and five wool sacks, of the value of §52fo°-o. That with a portion of said moneys Sherwood purchased and forwarded to the said Sweet thirty-four bales of wool, containing 7,041 pounds, purchased for him, as the said Sweet is informed and believes, and amounting in value to the sum of §2,112t%°o. That he also returned thirty-four of the wool sacks, of value of §17.</p> <p>That with the remainder of the moneys so furnished by “ Sweet to Sherwood,” Sherwood “ purchased wool in his own name, and sold and assigned the same, together with the remainder of the said wool sacks,” to other parties; that he has refused, and still refuses to deliver the last-mentioned wool to Sweet, or to furnish and deliver the. wool purchased with the moneys so advanced by Sweet, “ and also refuses to refund or return the moneys so advanced and furnished by said Sweet,” after deducting therefrom the amount thereof expended in the purchase of wool delivered by “Sherwood to Sweet, or to render any account there of to” Sweet.</p> <p>It alleges a demand by Sweet upon Sherwood of the moneys not expended in the purchase of wool delivered by Sherwood to Sweet, and an account thereof, and that Sweet “ has also demanded the wool purchased therewith, but has been unable to obtain the said moneys or an account thereof, or the wool purchased therewith,” and prays judgment for the sum of §3,923to°6) with interest from the 14th of July, 1858, with cost of this action.</p> <p>The defendant put in an answer verified November, 1858.</p> <p>The action was referred to and tried before a referee, who, by his report, dated February 9,1860, found upon the pleadings and evidence, that the facts substantially as stated in the complaint are true; and stated, in conclusion, that “ there can be no doubt that the plaintiff is entitled to recover the money advanced, less the proceeds of the wool received with interest from the time of last advañce, July 14, 1858. This amount is $3,923.20, with interest to December 28, 1859, (1 year, 5 months, 14 days, $411.23), making in all $4,334.43, for which sum the plaintiff should have judgment.</p> <p>The defendants in this suit, in order to áhow that the wool in question was the property of Sweet, and that they were justifiable in paying the proceeds arising from the sale of it to him as such owner, after he had given notice of his title and demanded such proceeds, offered to prove the facts stated in the complaint in the suit of Sweet a. Sherwood.</p>

Motion to strike out part of a complaint. Simon Sterne brought this action against A. S. Herman, and six others alleging, 1. That the New York Pengot Coal Co. was a corporation organized under the manufacturing companies act of 1848. 2. That at a time designated, one Weissenborn as a servant of the company rendered the services hereinafter stated. 3.

<p>Appeal from a judgment entered on a referee’s report.</p> <p>William S. Barton, plaintiff, recovered judgment of foreclosure of a mechanic’s lien against Isaac Hermann and John Barry. Defendant Hermann appealed. The facts appear in the opinion. A decision on a motion to set aside the referee’s report and stay entry of judgment on the ground that the lien had failed because of failure to renew, is reported in 8 Abb. Pr. JSÍ. K, 399.</p>

<p>Motion for leave to amend complaint.</p> <p>The facts are stated in the opinion.</p>

<p>Injunction.</p> <p>The usual injunction in supplementary proceedings only affects property received, earned or due before the making of the order.</p>

Motion to vacate order dismissing complaint. This was an action to recover damages for an assault and battery and false imprisonment committed on plaintiff by defendant’s orders on the 4th April, 1860.

This was an action brought by the plaintiffs against Joseph B. Bcclesine, to recover one hundred and thirty thousand dollars, alleged damages asserted to have been sustained by reason of divers alleged libelous publications, whereby persons were induced to refuse to make applications for insurance, &c., of and concerning the plaintiffs, contained in a chart of life insuranee companies, annually published by the defendant, and in which is embodied a brief synopsis of the…

Demurrer to complaint The plaintiffs stated in their complaint, that they were the owners, and entitled to the immediate possession, of three hundred and twenty-five pounds of silk, of the value of one thousand dollars, which was delivered to the defendant for the special purpose of being manufactured into sewing or fringe silk, and which had been so manufactured; and which silk the defendant illegally detained, after demand thereof; and they demanded judgment for the…

<p>Receiver.—Insurance Company.—Corporation.—Withdrawal of Capital.</p> <p>The objection, that a plaintiff suing as receiver of a corporation does not show that his appointment was founded on a petition, does not apply where the receiver was appointed on consent of the corporation, in an action brought under section 40 of 2 Revised Statutes, 463.</p> <p>Hotes given to an insurance company, under section 5 of the general law, are absolute and payable at all events without an assessment. They are not contingent on the happening of losses.</p> <p>Hence, when there are two departments in a company—one stock and one mutual —it is no defence to a note given on insurance in the mutual department, that all the losses in that department have been paid, and that the unpaid losses accrued in the other department.</p> <p>A corporation cannot make a valid agreement with one who delivers to them securities to form a part of their original capital, and going to make up the amount of such capital required by law, that they will subsequently surrender the same for a less security, which will not meet the requirements of the law. Such an agreement is a fraud upon the law.</p> <p>The surrender and cancelling of such a security, in pursuance of the agreement, does not release the liability of the one who gave it to the corporation. To allow it to have effect would he to sanction a withdrawal of capital, contrary to section 1, of art. 1, tit. 2, chap. 18, part 1, of the Revised Statutes.</p>

<p>Libel.—Irrelevant Matter in Answer.</p> <p>In an action by the author of a book against the publishers of a newspaper, for libel in these words: “ Dr. B. makes a very bad book and vends medicines to match,”—the answer alleged: 1. That plaintiff had been engaged in vending worthless books calculated to deceive; and injurious and deceptive compounds, as medicines. 3. That defendants, in their capacity as journalists, deemed it their duty to expose all such deceptions. 3. That certain books published by plaintiff, specifying them, were of an immoral and deceptive character. 4. That plaintiff prepared certain medicines, specifying them, which were a fraud and a swindle; and that evidence of these allegations would be given in justification and mitigation of damages.</p> <p>Held, that these allegations should not be stricken out as irrelevant.</p>

<p>Demurrers to replies.</p>

<p>Certiorari.—Mew York Common Pleas.—Power of Associate Judge.—Acting Mayor.—Mayor’s Power to remove Officers.—Delivery of Books, etc.</p> <p>The Supreme Court have not power by certiorari to arrest a special proceeding,— e. g., proceedings to compel delivery of official books and papers, under 1 Rev. Stat., 124, §§ 50-53,—instituted before a judge of another court sitting at chambers, prior to any final determination being made of the matter involved.</p> <p>The legitimate office of the common-law certiorari is to review and correct decisions and final determinations, not to divest the inferior jurisdiction of the right of terminating the proceedings, nor to withdraw from it the question to be tried.</p> <p>Under the present enlarged jurisdiction of the New York Common Pleas and its judges, the provision of Laws of 1844, 30, ch. 32,—declaring that no habeas corpus or certiorari shall be allowed, removing a proceeding before judgment or final decision, from the Court of Common Pleas,—applies not only to proceedings in the court, but also to all such proceedings as by statute are authorized to be instituted before any judge of the court.</p> <p>Upon these principles, a certiorari addressed to a judge of the Common Pleas to remove proceedings to compel the delivery of books and papers belonging to a public office, before such proceedings have been brought to a determination, may be disregarded as a nullity by the judge to whom it is addressed.</p> <p>Under the various provisions of law relating to the New York Common Pleas, an associate judge of that court possesses the power conferred by the Revised Statutes upon the first judge of the county in respect to those proceedings.</p> <p>Under the charter of the city of New York, as amended 1857 (1 Laws of 1857, 874), in the absence of the mayor from the city, the president of the Board of Aldermen becomes mayor in fact for every purpose, and can exercise all his powers, including the appointment and removal of officers.</p> <p>The mayor has no power to suspend the chamberlain. The latter officer is only the chief of a bureau, and it is only heads of departments that he may suspend.</p>

Eberhard Faber brought this action against Frederick George D’Utassey and Henry T. Bragg, for damages for the infringement of a trademark; and on the separate answer of the defendant Bragg, as being frivolous, moved for judgment against him.

The action was ejectment, brought by George B. Rockwell against William Brown and others. The answer contained a general denial and a claim of adverse possession, under claim of title, for more than twenty years.

<p>Application, for discharge of debtor under 2 Rev. Stat., 32, ch. 5, tit. 1, art. 6, on preliminary objection.</p>

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

Habeas corpus and certiorari to inquire into the detention of Philip Collins. The prisoner was confined in the City Prison of the city of New York. The warden of the prison brought him into court in obedience to the command of the habeas corpus; and returned that he held and detained the prisoner by virtue of a commitment (setting forth a copy of it), issued by William Schirmer, coroner of the said city, dated December 11, 1860.

<p>Motion to discharge attachment issued against defendant under section 227 of the Code of Procedure, as a non-resident.</p>

This action was brought to recover damages for injuries sustained by Willian Ward, plaintiff, a printer by trade, while riding upon one of the defendants’ cars, on the ground of negligence of defendants’ servants.

<p>Stay of Proceedings on Appeal.</p> <p>On appeal from a judgment directing the delivery of personal property, such as will depreciate by time and use, it would not be just for the court to allow a stay of proceedings upon an undertaking to obey the order of the court upon the appeal, under section 336 of the Code of Procedure. The respondent should have indemnity for the use and the depreciation of the property in case the judgment is affirmed.</p>

In this action an order of arrest was granted against the defendant, on the ground of fraud in contracting the debt for which the action was brought. He moved to set it aside, but his motion was denied at special term; and on his appeal to the general term, the order denying the motion was reversed conditionally, on the ground that by accepting a note for the debt, and suing thereon, the plaintiff had waived the right to arrest.

This action was brought in the marine court, by James S. Carpenter and Jacob Mertz, to recover for injuries to a horse arising from the alleged defective laying of a rail on defendants’ road. The facts appear in the opinion.

<p>Pleading.—Sham Answee,</p> <p>An answer which contains a denial of any material allegation of the complaint, if verified, cannot be stricken out as sham.</p> <p>In an action for goods sold, or for services, the allegation of the value thereof in the complaint is material, and a verified answer containing a denial of that allegation cannot be stricken out as sham.</p>

This action was brought on an insurance policy, and by the terms of the policy, the time within which action must be brought upon it was limited. The action was tried by the court without a jury, and the complaint was dismissed on the ground that the cause of action was such that it should have been tried at a circuit before a jury. The dismissal was without prejudice to a new action. The decision is reported 10 Ante, 34.

Order to show cause. This was an action to wind up a partnership that had existed between William Barry, plaintiff, and James Kennedy, defendant. A receiver was appointed of the partnership property, the order being made as a provisional remedy under the Code of Procedure.

<p>Foreclosure.—Distribution of Surplus.</p> <p>Where the mortgagor is dead, the supreme court has power to distribute the surplus on a mortgage foreclosure, among the persons entitled ; and will not, therefore, direct the county treasurer, in whose hands such surplus is, to pay the same to the surrogate under 2 Laws of 1867, p. 1690, ch. 658.*</p>

<p>Motion to vacate an order.</p>

George W. Metcalf sued Josiah. H. Baker, to recover damages caused by the negligence of the defendant’s servant, in driving the defendant’s horse and wagon into the carriage in which the plaintiff was riding. The case was referred. Defendant moved to dismiss the complaint on the ground, 1. Of plaintiff’s concurring negligence. 2. That the action should have been against the defendant’s servant.

<p>Appeal.—Payment on Execution.—Restitution.</p> <p>Where, pending an appeal, judgment is entered and the execution paid, the court below does not thereby lose jurisdiction of the case, and if the judgment be reversed on appeal, it will order restitution on motion made upon notice.</p>

The complaint was on two bills of exchange, drawn on the defendant by one P. G. Kane in favor of Mrs. E. Kane. It alleged that the drawer delivered them for valuable consideration to the payee, and that they were subsequently accepted by defendant; and that thereafter, and before maturity, they were indorsed by the payee for valuable consideration to the plaintiffs; and were not paid at maturity, though duly demanded.

This was an action for partition, brought by Rose Smith, against Margaret Mulligan and others. The facts are these : .John Mulligan, a citizen of the United States, died intestate, at the city of Brooklyn, December 4, 1868, seized and possessed of certain real .estate in that city.

The principal irregularity complained of, and that on which the decision at special term turned, was, that jurisdiction was not obtained of the person of the defendant, Samuel Mitchell, who was alleged to be an infant idiot, or lunatic, of the age of twenty years.

Motion to set aside levy of execution, and to satisfy the judgment as to George Barnstorf, one of the defendants. Matthias Carstens and others sued Louis Barnstorf and others, in the Kew York common pleas. The facts are stated in the opinion.

Motion, to require plaintiffs to file security for costs. The facts are stated in the report of the motion to vacate the attachment (10 Abb. Pr. N. S., 395).

Motion to vacate warrants of attachment issued under section 227 of the Code of Procedure. These actions were brought in this court, one by John C. Haviland and others, another by Henry D. Butler, and others, and a third by J. B.. Spelman and others, against Louisa D. Wehle. Attachments having been granted against defendant’s property, she now moved to vacate them. The grounds of the motion were: 1. Irregularity. 2.

<p>Appeal from order made at special term requiring Francisca Klein, plaintiff, to make her complaint more ■definite and certain, and also striking out all allegations charging George Klein, defendant, with improper, scandalous and. licentious conduct with other females than the plaintiff.</p>

Demurrer to the complaint. Frederick T. Mappier brought this action against John Mortimer and three others, to charge them individually, under sections 10 and 13 of the manufacturing Companies’ act of 1848, as having been stockholders and trustees in the Kelly Skirt Manufacturing Company.

On the 30th day of November, 1847, Peter Chandler made and executed Ms last will and testament, and among numerous bequests made the following : “I give and bequeath to my executors the sum of three thousand dollars, in trust, to pay over the same in six years from my decease, to the person who, when the same is payable, shall act as the treasurer of the American Protestant Society, reorganized in the city of Hew York, under its present name in the year 1844, to be applied…

The action was for partition. The complaint was filed in the clerk’s office on the 14th of October, 1859. The copy summons filed omitted the names of S. A. Maverick and wife, who were defendants. The order of publication was made on the 18th of October, 1859. The deposit in the post-office of the summons and copy complaint for the non-resident defendants, was made on the 22d day of October, 1859.