Volume 11 — Daly's New York Common Pleas Reports

History of the Riot. In the autumn of 1848, William C. Macready, a well-known and eminent English tragedian, came to this country to play a farewell engagement.

Trial of an action to establish a trust. This action was brought to establish the validity of a trust deed, made in November, 1875, by Elizabeth T. Holbrook to the plaintiff, and to release certain leasehold property from the lien of an attachment obtained by the defendant Rosenthal in an action commenced by him against the defendant Von Roques.

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

The action was brought to foreclose a mortgage of certain premises in the City of New York. In August, 1871, the- defendant Almira E. Holahan was the owner in fee of the premises, and then gave the mortgage in suit. The realty was subject to the dower interest of her mother, Susan Lyons, who joined in the mortgage.

<p>By an agreement in writing for the sale of goods, the purchaser was to have an exclusive agency, and was to he allowed a specific discount and the privilege of exchanging any of his purchases at any time. Interest was not mentioned in the contract; and there had been no final settlement or adjustment of the dealings of the parties under it. Held, that the purchaser was not liable for interest on the price of the goods.</p> <p>Where goods, sold with the privilege to the purchaser of exchanging them for others, are returned by him to the vendor for exchange, the title to them remains in the purchaser until they reach the custody of the vendor, and a loss by damage to the goods while in transit must be borne, as between the vendor and purchaser, by the latter.</p>

The complaint alleged the making of an excavation by defendants at the intersection of Fourth Avenue and Sixty-third Street, their partnership, that the place was left unguarded, and that plaintiff’s wife, while lawfully passing along the street, fell down the embankment made by the excavation, and was injured, to plaintiff’s damage $10,000. The answer averred contributory negligence by the wife, and a settlement with her, wherein plaintiff waived any claim.

The action was brought by plaintiffs, as surviving partners of the defendant’s intestate, to recover possession of goods, chattels and money alleged to be in defendant’s hands as administrator of the deceased partner. The answer, besides other allegations, put in issue the partnership. It included in its demand for relief a prayer for the appointment of a receiver, in which the plaintiffs joined by their reply. The latter moved for the receiver.

<p>Appeal from a judgment of this court sustaining demurrers to a complaint.</p> <p>The facts are stated in the opinion.</p>

<p>When a contract for an improvement in the City of New York has been made by the city without the previous publication of the resolution for such improvement required by law, the city does not become liable to the contractor in damages, by preventing him from performing such contract.</p>

The plaintiff in this action, being the occupant of the building No. 1532 Broadway, in the City of New York, made an application to the defendant, through her husband as her agent, for the supply of gas. The application was put in writing, and signed by the husband in the name of the wife, and he made a deposit of $10 with the gas com pany; he thereupon received a receipt for the $10, which he carried home and gave to his wife.

<p>Upon the trial of an action against a railroad company brought for alleged neglect of defendant causing the death of plaintiff’s intestate, it appeared that deceased, while in the employment of defendant, and at work as a laborer upon the tracks in its yards, was struck and fatally injured by a car coming from behind him, without a brakeman upon it, and to which impetus had been given by a detached locomotive. It also . appeared that this method of moving cars over these tracks, sometimes with and sometimes without a brakeman upon them, was daily practiced by defendant; that deceased had been employed there for more than a month before he was injured; and that only a day or two before he had been warned of the danger by defendant’s foreman, and urged .by him to take care, under penalty of dismissal. Held, that a motion by defendant to dismiss the complaint should have been granted, as deceased had failed to exercise ordinary care for his own safety; also, that upon the facts disclosed, lie must be charged with knowledge that the cars were moved in this way, and must be deemed to have assumed the risk incident thereto as one of the risks of his employment.</p>

The defendants are dock builders, and the plaintiff, when injured, was in their employ. It became needful to remove a land and water pile driver from New York to Jersey City. The removal was made by raising the land machine up and along side the water machine by a rope attached to the former, and running over the top of and attached to the drum on the latter, which was worked by its engine.

The plaintiff, in or about May, 1876, went into possession of a dwelling house in the City of New York belonging to the defendants, under a written lease, for one year from May 1st, 1876, at a rental of $1,000, payable monthly, in advance. The rent for May and June was paid.

Exceptions taken at a trial term of this court and ordered to be heard in the first instance at the General Term. The action was brought to recover from the defendants, as consignees and agents of vessels which had brought alien passengers from foreign ports to the port of New York, the amount of the duty imposed upon such passengers (by L. 1881, c. 431, p. 590) and remaining unpaid, with the penalties for default in payment.

<p>Plaintiff being entitled to money in the hands of defendant, an attorney at law, which had been collected by the latter upon a judgment in favor of another, notified defendant of his claim and directed him not to pay over the money to the judgment creditor; but defendant, afterwards, pursuant to an order of the court in which the judgment was recovered, paid over the money to the judgment creditor upon the latter indemnifying defendant against the claim of plaintiff. Held, that plaintiff was entitled to recover the amount from defendant.</p>

The facts are stated in the following opinion of Hamilton Cole, Esq., referee, dated February 27th, 1882: “On the 19fch day of February, 1879, the plaintiff and defendant entered into a contract for the purchase and sale of real estate. Upon the execution of the contract the plaintiff paid $1,500.

<p>Under section 2260 of the Code of Civil Procedure, authorizing appeals in summary proceedings to recover possession of real property, an appeal may be taken to the General Term of this court from an adjudication of the General Term of the Marine Court of the City of New York in such proceedings.</p> <p>Summary proceedings to remove a tenant, on the ground of an illegal use by him of the demised property, cannot he maintained under section 2231 of the Code of Civil Procedure where such illegal use has ceased before the application is made. In such case, the only remedy of the landlord to enforce his right of re-entry under section 1 of chapter 583 of Laws of ISIS, since the repeal of the last clause of that section by chapter 245 of Laws of 1880, is an action of ejectment.</p>

<p>In an action against a licensee under a patent for royalties accruing, under the license, upon the manufacture and sale of the patented machines, allegations in the answer, by way of counter-claim, that by reason of false and fraudulent representations and the use of tricks and devices by plaintiff, and the manufacture of machines in violation of the agreement, defendant suffered loss and damage, not staling what were the representations or the tricks and devices, and not showing what provisions of the agreement are alleged to have been violated, do not require any reply by plaintiff.</p> <p>Invalidity of plaintiff’s patent is not a defense to such an action.</p> <p>Upon a reference in such an action to take an account of the machines manufactured and sold by defendant during a certain period, if defendant refuses to produce -his hooks of account showing his sales of such machines during that period, although required by subpoena and by direction of the referee, it may properly be presumed that the number is as great as the number previously accounted for by defendant during a corresponding period.</p>

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

<p>Upon the trial of an action for work performed and materials furnished, plaintiff offered in evidence his books of account, the charges in which against defendants had been made by plaintiff’s wife, in the regular course of business, she acting as his clerk. It appeared that the entries in the books had been made by her in part from small books of plaintiff’s workmen, in which they put down and furnished at the end of each day their accounts of work and materials, and in part from memoranda made on slips by her husband or by herself in his absence, when goods -went out. She testified that she knew the entries to be correct when made. Held, that the books were properly admitted as plaintiff’s books of original entry, notwithstanding defendants’ objections on the ground that they were “ mere copies of books in existence.”</p> <p>The admission in evidence of such books without the preliminary proof requisite as a foundation for their introduction, is not cause for granting a new trial, if no objection was made to them at the time on that ground. The origin and grounds of the rule allowing a party to give his books of account in evidence, explained, and the nature and extent of the preliminary proof required, stated.</p>

On the 20th of January, 1881, the plaintiff, while passing over the sidewalk bordering Christopher Street Park, slipped on the ice and was injured. This park is below Fifty-ninth Street. The court on the trial dismissed the complaint, from consideration of but one question. From the judgment and an order denying a motion for a new trial the plaintiff appealed to this court.

Case submitted under section 1279 of the Code of Civil Procedure.

<p>Appeal from a judgment of this court entered upon overruling a demurrer to a complaint.</p> <p>The defendant in this action on the 14th day of May, 1872, issued its policy of insurance, whereby, amongst other things, in consideration of the payment of the sum of $26.93 by the assured, August Werner, of New York, and of the quarter-annual payments of a like amount, to be paid on or before 12 o’clock noon of the 14th days of May, August, November and February in every year during the continuance of the policy, until he should have paid ten full years’ premiums, it insured the life of said Werner in the amount of one thousand dollars for the term of ten years ending with the 14th day of May, 1882. The policy then provided for the payment of the amount insured, “ provided always the terms and conditions under which this policy is issued shall have been observed by the person whose life is hereby insured, and provided that this policy shall have been maintained in full force and effect by the payment of all premiums falling due hereon up to and including the date mentioned for the last payment thereof.” The policy further provided that upon the surrender of the policy while the same is in force, or within thirty days thereafter, a paid up policy will be issued in lieu thereof. The policy further provided that “ the payment demanded for a year’s insurance under this contract shall be known as the premium hereof, and shall in all cases be due in advance with the beginning of each year. Where said premium is divided into quarterly or semi-annual parts, the unpaid portion of the year of death shall be deducted in the settlement hereof.” The policy further provided that “ the'said premiums must be paid on or before the days above mentioned for the pay-</p> <p>ment thereof,” &c. The complaint, of which the policy was made a part, set forth that plaintiffs had paid the premiums thereon in quarterly instalments, as stipulated, up to and including May 14th, 1879, making in all $780.97, but had omitted inadvertently and by a clerical error to pay the instalment of August 14th, 1879, but did on November 14th, 1879, tender to defendant the two -quarterly instalments then due, but that defendant refused to receive the same or to continue-the said insurance for the full amount thereof; that plaintiffs were entitled, according to the practice of the said company, as they are informed and believe, to a paid up policy for seven-tenths of the full sum insured, namely, seven hundred dollars. That on October 15th, 1880, they tendered the policy for surrender, and demanded a paid up policy as aforesaid, but defendants refused to accept such surrender or issue a paid up policy.</p> <p>Defendants demurred, 1. For misjoinder of parties plaintiff, in that August Werner is not a proper plaintiff, and has no cause of action. 2. Also that Phillipene Werner, his wife, is not a proper plaintiff, and has no cause of action upon the matters alleged. 3. That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>The issues of law were brought to trial and the demurrer overruled, with leave to answer; the defendant failed to answer, and plaintiffs entered judgment upon findings of fact according to the allegations of the complaint, except that the value of the policy and the amount of the paid up policy were found to be $600 instead of $700 as alleged in the complaint; and from the judgment .thus entered this appeal is taken.</p>

A summons, and a complaint which was defectively verified, were duly served upon the defendant. Upon the return day of the summons the defendant failed to appear, and the plaintiff took judgment without proof, as though his complaint had been sufficiently verified; and from the judgment thus rendered the defendant appealed.

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

<p>A defendant is entitled to costs, as of course, upon the dismissal of the complaint, although he has set up and afterwards withdrawn a counterclaim.</p>

Trial of an action to restrain injuries to real property and to recover damages for injuries committed.

Motion to continue an injunction. The action was brought to restrain an alleged infringe-? ment of a trade-mark claimed by plaintiff, and for an accounting and damages.

Motioh for leave to amend an offer of judgment. The offer of judgment for a sum of money, served, on behalf of defendant, upon plaintiff’s attorney, was subscribed by defendant’s attorney, but the latter did not annex thereto his affidavit to the effect that he was duly authorized to make such offer, as required by section 740 of the Code of Civil Procedure. The plaintiff. did not accept the offer.

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

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

<p>The court has no power to restrain by injunction the execution of a warrant issued upon a final order in a proceeding for forcible entry and detainer, pending an appeal from such final order, where there are no allegations of fraud or collusion in the proceedings or want of jurisdiction of the magistrate.</p>

<p>The business of bookmaking—described as the making of a memorandum by any person, upon his own book or paper, of his own bet or wager— is within the prohibition, in chapter 178 of Laws of 1877, of recording of bets or wagers, although the practice of bookmaking was unknown at the time of the passage of the act; such practice being within the letter of the statute, and the evident intent of the legislature in passing the act being to suppress the unlawful business of betting or gambling in any and every form.</p>

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

Trial upon demurrer to complaint. The action was brought to recover damages for the breach by the defendant of an agreement with plaintiff.

The action was brought against one Peter Diehl, to re-recover the sum of $250 claimed by plaintiff as a balance of commissions due him as broker for the sale of certain lots of land.

<p>A client is responsible for the fees of a stenographer employed by his attorney to take minutes of a proceeding under a suggestion to which the client accedes. Whether or not such proceeding was instituted by him is immaterial.</p>

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

The action was commenced in the District Court in the City of New York for the Fourth Judicial District, by summons. Upon the return of the summons the plaintiff, by way of complaint, alleged that the defendant had converted to his own use certain property belonging to her. The defendant answered by a general denial. The cause being tried, the justice found in favor of the plaintiff for '$50 damages, and $22.50 costs and extra costs.

The action was brought to recover the sum of $27,149.70, which plaintiff, a depositor with defendant, claimed to be due him, over and above his drafts on his deposits. The sum in question was the aggregate of twenty-three checks charged against him in balancing his pass-book on September 14th, 1865. On the first trial of this case the jury gave a verdict for the whole amount of his claim.

Case submitted under section 1279 of the Code of Civil Procedure. On October 10th, 1834, Beekman and others leased to Edward Smylie certain premises on Henry Street, New York City, for the term of twenty-one year-s, from May 1st, 1834, with covenants for two renewals of twenty-one years each.

<p>The publication of a statement that persons employed in a certain department “ have been dismissed for alleged thefts of leather belonging to the department,” with a comment, that “ the rascals ought to feel thankful for getting "off without more severe punishment,” is libellous, as amounting to a charge of theft.</p>

<p>Defendant published, in a newspaper called “ The Fireman’s Journal,” and relating to affairs of firemen, under the heading “ The New York Department,” a statement that “the entire staff of harness makers of the department, being three in number, have been dismissed for alleged thefts of leather’belonging to the department.” At the time of the publication, plaintiff, with two others, had just been discharged from the Fire Department of the City of New York, in which he had been employed as a harness maker. Held, that the publication referred with sufficient distinctness to plaintiff to sustain an action by him for libel therein.</p> <p>To an action for libel by repeating an accusation against plaintiff, it is not a defense to show that such accusation was made, without proving the truth of the accusation.-</p>

The complaint in this action alleged that the plaintiffs, together with the defendant Averill, were the executive committee of a political organization in the City of New York known as the “ Reform Association,” and that the defendant Speir was a candidate for the office of Judge of the Superior Court of the City of New York at the election held in November, 1873.

In October, 1877, one W. R. Bergholz commenced an action against this defendant to recover the sum of $5,000' for services alleged to have been performed for it by Bergholz. The defendant answered denying the indebtedness.

<p>Appeal from a judgment of this court entered upon the dismissal of a complaint, and from the order dismissing the complaint.</p> <p>Prior to the 26th of August, 1880, Robert W. Oliver and John Enders Robinson, residing in the City of Richmond, State of Virginia, had been conducting the tobacco business in said City of Richmond and also in the City of New York.</p> <p>On said 26th of August, said Oliver & Robinson signed an instrument and acknowledged the same before a commissioner of deeds for the State of New York residing in said City of Richmond, whereby they purported to bargain, sell, transfer, assign and convey unto one Oscar S. Grady, the party of the second part named in said instrument, all their personal property and stock in trade and debts due for goods sold by them in • their business in the City of New York, in trust to reduce the same to cash and pay certain of the creditors of said Oliver & Robinson. Said instrument was.sent by said Oliver & Robinson to the City of New York after being signed and acknowledged by them, and was on the 1st day of October, 1880, delivered to said Grady, who thereupon executed an instrument accepting the said trust, and acknowledged the same before a notary public in said City and County of New York. The said Grady thereupon took possession of the property mentioned in said deed of assignment and proceeded to sell the property. The assignee did not file any bond or schedules as required by the assignment law of the State of New York. On the 14th day of October, in an action commenced in the Supreme Court by the Merchants and Planters’ Savings Bank of Richmond against the said Oliver & Robinson and one Mathews, mentioned in said assignment, an attachment was duly issued against the property of the defendants in that action, under which attachment the sheriff of the City and County of New York, took possession of some of the stock in trade which Oliver & Robinson had attempted to transfer to the siiid Grady. On the 23d of October, 1880, the said Grady, as assignee for the benefit of the creditors of Oliver & Robinson, commenced this action against the said sheriff for the conversion- of the said property. Subsequently other attachments were issued against said defendants Oliver & Robinson and Mathews.</p> <p>The sheriff in his answer justified the seizure under the attachment upon the ground that the foregoing assignment was fraudulent and void.</p> <p>Upon the trial of this cause, these facts appearing, the complaint was dismissed and an order entered to that effect, upon which judgment for defendant was entered. From the judgment and the order dismissing the complaint plaintiff appealed.</p>

<p>As the police officers appointed by the Department of Public Parks in the City of Hew York have, under L. 1871, c. 290, § 6, within the territorial jurisdiction of the department, the same powers as members of the police force of that city, such an officer may make an arrest, without warrant, for a violation of the ordinances of the department committed in his presence.</p>

The defendant was originally arrested in each of nine actions. He moved to vacate each order of arrest and his motions were denied. He appealed from the orders denying his motions and they were affirmed.

<p>Interlocutory costs may be set off against the judgment finally rendered in the same action, notwithstanding a promise by the party to whom the costs were awarded that they should belong to his attorney in the action.</p>

<p>After the dismissal of the complaint at the trial of an action, the judge has no power to grant a new trial upon his minutes.</p>

The plaintiff, Mrs. Hencken, held two policies issued by the defendant the United States Life Insurance Company upon her husband’s life; one dated July 7th, 1859, when he was 31 years of age, for $5,000, at a quarterly premium of $30.45, and the other dated May 9th, 1866, for $5,000, annual premium $275 for ten years; and she was entitled to dividends out of the profits of the company declared upon the policy, to be collected by her with the face amount of the policy when…

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

<p>After the death of one member of a partnership, his executors, pursuant to directions in his will, continued the partnership business with the surviving partners in the same firm name, of which the name of the deceased partner formed part. Held, that this .was a violation of the act of 1833 (L. 1833, c. 281, § 1), providing that no person shall transact business in the name of a partner not interested in his firm.</p>

<p>An appeal from an order denying a motion to set aside the service of a summons is not waived by the service of an answer setting up, as a plea to the jurisdiction, the same facts relied on by the defendant as the grounds of the motion.</p>

The complaint in this action—after alleging the commencement of an action in the Marine Court by this plaintiff against one Charles E. Auchise, in which action an order of arrest was issued directed to the defendant in this action, whereby he was ordered to arrest the said defendant • Auchise and hold him to bail in the sum of $1,500, and that thereupon this defendant duly arrested the. said Auchise and served upon him the summons and complaint and other papers in said…

■ Appeal from an order of this court denying a motion to strike out .part of a complaint as irrelevant and redundant. The allegations of the complaint are -stated ante, p. 301, 302.

<p>The assignee under a general assignment for benefit of creditors entered into an agreement in writing with the mortgagee in a chattel mortgage by his assignor, that he would sell the mortgaged goods, and if the mortgage “ should be determined to be a valid lien by the judgment or decree of a court of competent jurisdiction,” that he would pay to the mortgagee out of the proceeds of such sale the amount of the mortgage debt. Held, that the assignee was precluded from taking an appeal from a judgment in an action brought against him and the mortgagor to foreclose the mortgage, which adjudged the mortgage to be valid.</p> <p>Where, upon cross-examination, a witness refuses to answer a question which, although upon collateral matters, is not otherwise objectionable, but the answer to which may tend to criminate or degrade him, the party asking such question may further ask the witness his reason for refusing to answer, and compel him to claim his privilege if his refusal is based upon that ground.</p>

<p>If, after the employment of a servant, but before the term for which he is employed begins, the employer learns that the servant is a drunkard, it is sufficient ground for a refusal to accept his services.</p> <p>Upon an appeal from a decision of the General Term of the Marine Court of the City of New York affirming a judgment of that court entered upon a general verdict, an error not excepted to in that court, is not ground for reversal.</p>

<p>Upon, an appeal from a decision of the General Term of the Marine Court of the City of Kew York affirming a judgment of that court entered upon a general verdict, the court can deal only with questions of law arising upon exceptions duly taken, and cannot correct errors of the jury.</p> <p>Thus the court cannot reverse such a judgment on the ground that the verdict was the result of a compromise on the part of the jury.</p> <p>Amendments may be allowed in an appellate court to sustain a judgment, but never to reverse a judgment.</p> <p>Where a contract is made by a married woman for her own personal services, and payment for such services is to be made to her, it will be presumed, in the absence of proof to the contrary, that such services are to be performed on her sole and separate account; and she may sue for and recover her earnings under the contract.</p>

<p>Appeal from an order of this court denying a motion for re-taxation of costs.</p> <p>The facts are stated in the opinion.</p>

Exceptions taken at a trial term of this court ordered to be heard in the first instance at the General Term. In January and February, 1880, the defendant Scofield made to his own order six promissory notes at four months, aggregating $20,000. He procured the defendant Degraaf to indorse the notes for his accommodation, and the notes so indorsed were discounted by the plaintiff for the maker, upon an agreement which the defendant Degraaf claimed was void for usury.

The action was commenced January 27th, 1876, to recover damages against defendant’s testator, Wm. C. Conner, as sheriff of the City and County of New York, for failure to return an execution against Charles G. Wilson upon a judgment recovered by plaintiff against him, which execution was issued to the sheriff on the 22d day of November, 1875.

<p>Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.</p> <p>The action was brought to recover the sum of $1,970, the price of goods sold and delivered by plaintiffs to defendants. Defendants set up a counter-claim for breach of warranty on a previous sale of cloakings for which they had paid plaintiffs the full agreed price, $8,883.50. Plaintiffs denied the warranty.</p> <p>The sale of the cloakings in question was upon an executory contract, by which plaintiffs, a New York house, took an order from defendants in February, 1880, for cloths to be manufactured by Geo. Ellison Nephews, of England, and delivered in June and July. Mr. Entz, one of the plaintiffs, exhibited certain samples of cloakings to Mr. Bull, of the defendants’ woolen department, at the time of taking the order, and the goods were ordered by Mr. Bull from the samples. Mr, Bull testified that it was agreed between Mr. Entz and himself, at the time of giving the order, that the goods ordered were to be equal in quality to the samples, and the general characteristics of the goods all through were to be equal in every respect to the sample. Mr. Entz denied this, and said that it was understood that the samples should represent the style; that not a word was said to Mr. Bull from which he could infer that the samples were samples of goods plaintiffs could furnish if ordered; that nothing whatever was said about character or quality of the goods; that the plaintiffs’ trunk of samples was sent up to Mr. Bull and he selected the goods in Mr. Entz’s absence, nothing being discussed between them but price.</p> <p>After the goods were delivered the defendants retained them some two months without examination, but then, discovering that the goods were not equal to the sample in quality and texture, but were tender and rotten throughout, notified plaintiffs that they held the goods subject to their order. The plaintiffs, denying that there was a warranty in the sale of the goods, insisted that the defendants were bound, as in the case of ordinary executory contracts, to examine and return the goods at once if found to be unmerchantable ; and that, having retained them without examination, their acceptance of the goods was to be assumed, and their right to reclamation was gone.</p> <p>Defendants claimed that their acceptance of th’e goods and retaining them without examination was induced by the act of the plaintiff in sending to them, immediately prior to the delivery, sample cards with samples cut from the cloth in each bale, and purporting to represent the cloth in bale, and that such samples were of sound merchantable goods and were false representations as to the quality of the goods in the bales. This false representation, it was claimed, induced the acceptance of the goods. Mr. Entz testified that he understood the samples to be samples cut off the respective bales of goods, exhibiting the character and quality of the goods in such bales, and that he sent them to Mr. Bull, at his request. They were cut off the end of the piece and delivered with the cases. In this instance, at Mr. Bull’s request, they were delivered before the cases.</p> <p>The Judge left the case to the jury on two questions of' fact: 1st, was there a warranty; 2d, were the defendants prevented from making an examination of the goods by the-sending of the sample cards. The jury were directed to find specially on the question of warranty; and therefore to the question, “Did Entz say to Bull the goods that were-to be furnished would be equal in quality to the small pieces-of goods that were exhibited when the goods were ordered? ” they answered, “Yes.”</p> <p>The jury stated also that they found “for defendants for-the amount of goods claimed to be damaged at purchase-price, $3.25 per yard, same to be returned, less amount of' plaintiff’s claim; 1,970-|- yards, at $3.25, $6,464.53—$2,118- = $4,286.53, for defendants.</p> <p>The plaintiffs asked a reversal on the grounds that: 1st, there was no proof of warranty; 2d, no fraud in inducing acceptance; 3d, errors in rulings upon the trial; 4th, unauthorized and irregular verdict.</p>

The facts, as averred in the complaint and proved on the trial, were as follows: Defendant Hochstadter, as attorney-at-law, received from James R. Hills his check upon the Chemical National Bank for $120, dated May 1, 1878, payable to the order of George W. Bruce. This check was given by Hills in payment of a claim held by Bruce against one Fairchild, an insolvent.

The action was brought to recover damages for the conversion by the defendant of personal property claimed by the plaintiffs. The facts are stated in the opinion.

The plaintiff was a passenger on January 1st, 1881, on defendant’s railroad from Hoboken to Montclair. He gave the conductor of the train a ticket for a passage from Montclair to New York. The conductor refused to receive it and demanded his fare. The plaintiff refused to pay fare, and the conductor directed the brakeman to put him off. The latter did so in spite of active resistance from plaintiff.

<p>Card hoard on which pictures of animals, birds' and other objects were printed, was cut into strips, on each of which was a part of a picture, and which constituted games or puzzles, to which the terms “ sliced animals,” “ sliced birds,” or “sliced objects” were applied, according to the subjects of the pictures. Held, that these were arbitrary words, in no manner descriptive of the articles, and might be protected as trademarks.</p>

<p>Appeal from a judgment of the District Court in the City of New York for the Sixth Judicial District.</p> <p>The facts are stated in the opinion.</p>

Previous proceedings in the action are stated 9 Daly 331, 334. The order there mentioned appointing Abram Wake-man, Esq., referee, in the place and stead of William Bloom-' field, deceased, having been affirmed (9 Daly 336), a motion was made by the defendant The Mayor, &c., at Special Term, to increase the number of referees to three; pending which the plaintiff deceased, and the action was continued by the present plaintiff as administratrix.

<p>Under the amendment of section 629 of the Code of Civil Procedure passed May 12th, 1883 (L. 1883, c. 404)—which provides that upon the hearing of an application to vacate or modify an injunction order, “ the court or judge must, when the alleged wrong or injury is not irreparable and is capable of being adequately compensated for in money, vacate the injunction order,” upon the defendant’s executing an undertaking as thereby prescribed—an application by defendants who have appeared upon the return of an order to show cause why an injunction granted provisionally should not be continued during the pendency of the action, and have opposed its continuance, has the same force and effect as if they had applied upon notice to vacate the injunction ; and if made while the motion to continue is, though argued, still under consideration, it is, within the meaning of the amendment, an application “ upon the hearing.” So held, where the motion to continue had been argued, but not decided, before the passage of the amendment.</p> <p>The injury complained of was the withholding from plaintiffs of payments provided for in a lease, the amount of which payments had been reduced by subsequent agreements, to set aside which agreements the plaintiffs had brought the action. The defendants offered to pay the reduced amounts. Held, that the alleged wrong or injury was “ capable of being adequately compensated for in money ; ” that the extent of the injury which the plaintiffs could sustain from vacating the injunction was the difference between the amounts payable under the lease and the reduced amounts payable xmder the subsequent agreements, from the time of the service of the injunction until the action could be tried and the rights of the parties finally determined by a judgment; and that the undertaking should be in such form as to indemnify the plaintiffs against any loss or injury they might sustain by the vacating of the injunction from the time of vacating it to the trial and judgment.</p> <p>The amendment makes no distinction between injunctions ad interim and injunctions pendente lite; and where, pending a motion to continue an ad interim injunction, the indemnity contemplated by the statute is given, it puts an end alike to the injunction ad interim and to the motion to continue it.</p>

<p>Where an action of an equitable nature is brought to cancel a tripartite agreement, by which the parties thereto assumed to modify previously existing leases and agreements between them-by reducing the amount of the rents fixed by such leases, and making other changes, the fact that the plaintiff might have brought an action as lessor for rent reserved jn one of such leases, in which action the agreement sought to be can-celled could be attacked upon the same grounds, and in which a final recovery of rent notwithstanding that agreement would be as effectual as any final judgment in the equitable action, could be, does not preclude him from maintaining such, equitable action where one of the parties to the tripartite agreement, who is therefore a necessary party to any action seeking to avoid it, being in no way liable for the rent reserved to plaintiff, could not be brought in as a party in an action for such rent.</p> <p>An action hy a corporation to set aside an agreement made by its directors without authority, or fraudulently, may be maintained notwithstanding the corporation itself is, hy the use of its name by its directors, a party to the agreement it seeks to repudiate.</p> <p>Such an action may be maintained without a disaffirmance by the stockholders of such agreement if the directors had no authority to make the agreement; but if it is impeached because of fraud, the contract being a voidable one, due diligence must be used in electing to avoid it. The timely commencement of a suit by one or more stockholders, asserting the rights of stockholders as a class may be sufficient; it is not requisite that each particular stockholder should sue. And a party who has by injunction restrained the bringing of such suits cannot object to delay of stockholders to sue while so restrained.</p> <p>Acts of a board of directors of a corporation, done by them on behalf of the corporation, but in excess of their authority, or in violation of their trust, may be impeached by a board of directors subsequently elected.</p> <p>The mere commencement of an action in the nature of a bill of peace, brought to determine all questions relating to, and to restrain bringing any action on account of certain agreements, the subject of dispute, does not prevent one of the defendants therein from maintaining such an action, until the right to an injunction has been established, either preliminarily or by final judgment.</p> <p>The doctrine of res ádjuclicata does not apply to interlocutory judgments or orders which may be vacated or modified by the court which rendered them.</p> <p>A judgment against a corporation involving the validity and effect of an agreement made in the name of the corporation hy its directors, which judgment is not founded on proofs, but wholly on admissions of facts hy the same directors, is not a bar to a subsequent action by the corporation to set aside the agreement. Such a judgment is nothing more than a judgment by consent; and its nullity, though it has not been set aside or reversed, may be established in another action. The denial of a motion to vacate such a judgment adds nothing to the force or effect of the judgment.</p> <p>The plaintiff in an action to rescind a void or voidable agreement is not to be denied relief because he cannot restore the other parties to such agreement to the same position which they occupied before they entered into the agreement, where such other parties put themselves in the position in which they find themselves with full knowledge that plaintiff claimed the agreement to be void and fraudulent, and after every means to restrain the wrong had been taken at once, by those who had the right, on plaintiff’s behalf, to question the legality of the transaction.</p> <p>The rule that, if any party to an agreement sought to be rescinded has, in consequence of it, done anything which cannot be undone, or has omitted to do anything which he might have done, no rescission can be had, does not apply to things done or left undone hy such a party who had knowledge, before anything was done or omitted to be done, that the agreement was repudiated, either by the other party or by those who had a right to contest its validity on his behalf.</p> <p>The rule that to retain any part of what has been received upon a contract is incompatible with its rescission, does not apply where, if the contract sought to be rescinded had never been made, the party rescinding would have been entitled to receive more than what was received under the contract. In such a case no offer to return is necessary, nolis it proper for the court to order restitution. It is only where the party rescinding has no claim to what has been received, except by force of the contract sought to be rescinded, and therefore its retention is incompatible with the rescission, that a return or offer to return is necessary.</p> <p>In May, 1879, the Mew York Elevated Railroad Company, and the Metropolitan Elevated Railway Company, each being the owner of elevated railways in the City of Mew York then in operation, though not fully completed, which it was desirable for-the interest of the companies and of the public should be completed and operated under one management, entered into a tripartite agreement for that purpose with the Manhattan Elevated Railway Company, by which each of the former companies was to execute a lease of its roads, etc., to the latter, and certain agreements were made respecting outstanding contracts for construction, etc., to be assumed by the Manhattan company, and respecting various payments to be made by the others ; and the Manhattan company agreed to assume payment of the principal and interest of the first mortgage bonds of each of the other companies, to pay, as rental, to each a certain sum annually and an annual dividend of ten per cent, upon the stock of each of them, and to issue bonds of the Manhattan company for a large amount, convertible into its own stock, to the other companies ; the amount of the sums so to be assumed and paid, of the dividends guaranteed, and" of the bonds to be issued by the Manhattan company being the same for each of the other companies. Pursuant to the terms of such tripartite agreement, the leases and agreements provided for were executed and carried into effect, and bonds were issued by the Manhattan company, which were converted into its stock, and the stock was distributed by the other companies among their stockholders. It was soon ascertained that great miscalculations had been made as to the cost of completing the various lines, and the completion of the Metropolitan structure absorbed a sum much greater than had been anticipated ; the net income derived from the business of the roads fell far below the anticipations of the parties, the cost of operating the roads having greatly increased and the amount of travel, especially upon the Metropolitan lines, being much less than had been expected ; the properties of the corporations were subjected to taxation, which, under the leases, the Manhattan company was bound to pay, to an extent which had not at all entered into the calculations fixing the rental; and many actions were brought and claims made against the companies for injuries to private property from the construction and operation of the roads. In consequence the Manhattan company, early in 1881, was admitted by its president to be hopelessly insolvent, unless relieved from the taxes imposed on it; the revenues derived from the roads were found insufficient to meet the engagements it had undertaken in the leases, the Metropolitan company earning barely sufficient to pay the fixed charges on its road, and the New York company earning sufficient to pay its fixed charges and also a dividend to stockholders; and on July 1st, 1881, the Manhattan company made default in the payment of interest on the bonds of the other companies and of the dividends of their stock. Suits founded on the .insolvency of the Manhattan company were brought against it by bondholders of the other companies, and injunctions asked and obtained restraining payments by it to stockholders of those companies ; suits on the same ground were brought against it by the attorney-general, in which temporary receivers of its property were appointed; and an action was brought and other proceedings taken by the New York company to recover possession of its property from the Manhattan company and the receivers, by reason of the insolvency of that company and its defaults in payments under the lease. On the other hand claims were made and an action brought by and on behalf of stockholders of the Manhattan company to recover from the other companies the par value of its stock, received by them and distributed among their stockholders, on the ground that it had received no value for the stock ; and this claim was also asserted by the Manhattan company and its receivers in the proceedings by the New York company to recover its property. Meantime negotiations were pending for a settlement of these various matters of difference, and for modifications of the leases which would enable the Manhattan company to continue the operation of the roads, on the basis of concessions by the other companies; and in October, 1881, an agreement for that purpose was entered into between them, whereby the tripartite agreement and leases of May, 1879, were modified, the principal changes being a reduction of the dividend rentals from ten to six per cent., and a provision that the dividend rental to the New York company should be paid before that to the Metropolitan company; and each of the three companies released the others from all actions, claims and demands except such as were embraced in and created by the agreement and leases as modified and by the new agreement. By a supplemental agreement made at the same time, the rental dividends to the New York company were made cumulative, and its claims under the leases were to be paid up to October 1st, 1881. These October agreements were executed, on the part of the Metropolitan company, by authority of its board of directors, -without the assent of the stockholders, and were never ratified by the latter in any manner; and suits to set aside these agreements were immediately brought by individual stockholders. Subsequently, and soon after the election of a new board of directors of the Metropolitan company, a suit was brought by them in the name of the company to set aside the October agreements on various grounds, among thorn violation of trust and fraud on the part of certain members of the former board of directors in entering into the scheme to benefit themselves at the expense of their corporation.</p> <p>Meld, that upon the evidence, the charge of fraud was not sustained; that in view of the importance of keeping the properties under one management, for which the Manhattan company afforded the best means, the necessity of making some concessions for that purpose, the difference in the relative values of and profits realized and to he anticipated from the respective properties, the claim made by the Manhattan company against the others, and the claim.of the New York company to recover possession of its property, under all the circumstances the settlement might be approved as the best solution of the existing controversies, and that it involved no unjust discrimination against the Metropolitan company; that no fraudulent intent on the part of the former directors of that company, whose action was attacked, was to be deduced from the proofs as to their respective interests in the properties and their acts and conduct in connection with the making of the agreements; and that subsequent acts by them, in carrying into effect the agreements and further promoting their general purpose, although tending to show subsequent fraudulent intent and bad faith toward the stockholders, were not sufficient to establish an original fraudulent intent at the time of the making of the agreements themselves.</p> <p>In order that a fraudulent intent in an original act—as, the making of an agreement—may be deduced from subsequent acts, they must be inconsistent with anything but a fraudulent intent originally, and not relate to any subsequent fraudulent intent. Afraudulent intent formed after an agreement has been executed and delivered, although formed for the purpose of aiding the carrying into effect the terms of the agreement, cannot relate back to the original agreement.</p> <p>A provision in the charter of a corporation that the directors are to manage the business and affairs of the company, does not confer on them the right to exercise every corporate power, but merely to manage the ordinary business and affairs of the company for the carrying on of which it was organized, leaving the right remaining in the shareholders composing the company to set in motion or confirm corporate action within the corporate powers, but extraordinary or unusual in its nature. Acts making organic or fundamental changes in the character or business of the corporation cannot be done either by the directors alone or the stockholders alone; both the executive and administrative officers must unite with the shareholders. So held, in regard to a lease of the entire railway and other property of a railway company for a long term of years.</p> <p>The principle of the rule that every contract entered into by a director with his corporation may be avoided by the corporation within a reasonable time, irrespective of the merits of the contract itself, extends to the case of a contract between two corporations, of whose directors some hold that office in each corporation, so that they contract as directors of the one, with themselves as directors of the other. But, it seems, this disqualification of common directors does not extend to common shareholders, so as to render them incompetent to ratify agreements between their companies; the disability rests entirely upon the fiduciary relationship.</p> <p>And where one of the corporations seeks to rescind such a contract, the fact that the number of its directors who voted for the contract was sufficient to constitute a majority even if all the common directors had voted against the contract, does not cure the infirmity. The corporation is entitled to all the knowledge and skill which each and every director can bring to bear upon the subject before the directors. If there is even one director who is disqualified, the whole action of the board is subject to repudiation.</p> <p>Neither would it affect the question, that the shareholders of the company seeking to rescind knew, at the time of electing such directors, that they were also directors of the other company; if the shareholders had not then any reason to suppose that any such contract was to be made.</p> <p>In order that an agent or trustee may act for two principals, the principals must each know, not only that he is the agent of each, but also that action by the agent is contemplated, in which such agent is to represent the hostile interests of both principals, and if such knowledge is not shown, the principals may repudiate.</p> <p>The evidence of a party may be disregarded by a jury or a court trying questions of fact, although it is in no wise impeached or affected; notwithstanding the different rule obtaining in respect to the evidence of disinterested witnesses.</p>

<p>Appeal from a judgment of the General Term of the-Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a .jury and an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>During the term of a lease by defendant to plaintiff of the lower portion of a building owned by the former, it became necessary for defendant to change the place of the pipes which conducted water from the roof of' the building, and to provide and put up new pipes for that purpose. To do this a firm of tinsmiths were employed and instructed on behalf of defendant by an agent having due authority from defendant to do so, whom the agent had previously employed and considered to be skillful workmen; and one of that firm personally supervised the work as it was done by their workmen, and, as he testified, examined it when done. A loose or open joint was made in the pipe where it passed through a wall of the building, and was left unsoldered ; in consequence of which rain water from the roof ran through the opening and down in and along the wall, and injured plaintiff’s goods in the lower part of the building. Held, that defendant was liable to plaintiff in damages for such injury.</p> <p>Defendant was not relieved from liability by a clause in the lease that plaintiff should not claim for “ damages caused by the elements, by leakages in roof or piping as the damages were the result of leakage of the piping caused, not by the elements, hut by the negligent manner in which the pipes had been put together upon re-adjusting them, after the lease was executed and plaintiff was in possession.</p>