Volume 11 — Duer's New York Superior Court Reports

Appeal by the defendant Eisher from a judgment at special term. The action was brought in pursuance of a former judgment of the court, made in an action brought by John Adams, President of the Eulton Bank, against the plaintiff Leavitt, and the defendant Eisher, to compel them to determine in a suit between themselves the right to a transfer and certificate of sixty shares of the capital stock of the Eulton Bank, to which each of them claimed to be legally entitled.

31. The action was for work and labor done and performed for the defendants at their request, and for lumber and other materials sold and delivered to them, and the complaint demanded judgment for $534, with interest.

Tbe action was brought to recover the sum -of $3,842.22 with interest claimed to be due from the defendant to the plaintiff. The complaint charged, First. That the defendant was indebted to the plaintiff in the sum of $3,697.99, for so much money paid, laid out, and expended for the defendant, and at his request. Second. That P. Gr.

This action was tried in December, 1853, before Chief Justice Oakley and a jury, and under specific instructions, a verdict was found for tbe plaintiff, which was taken subject to the opinion of the court, at General Term, upon the questions of law arising in the case.

This was an appeal by tbe plaintiff from a judgment of non-suit, and was heard upon a bill of exceptions. The action was commenced before the Code, and was brought to recover damages for the breach of an implied warranty in the sale of goods by sample.

Appear from a judgment for the defendants upon a demurrer to the complaint.

Appeal by the defendants from a judgment entered on a verdict for the plaintiffs. The action wa§ brought to recover the sum of $2,204.44, with interest, which the plaintiffs alleged they had paid to the defendants, ás the consideration of the purchase from them of a bill of exchange for the sum of £450 10s. sterling, purporting to be drawn by the Guernsey Commercial Bank, but which, it has been ascertained, was a forgery.

Appeal by the plaintiffs in the first action, and the defendants in the second, from judgments entered upon the report of a referge. The complainant in the first action set forth a contract by which the defendant agreed to sell and convey to the plaintiffs certain property in the city of New York, for the sum of $50,000.

This action was brought by Andrew Switzer, to recover the value of certain household furniture, alleged to have been wrongfully taken from the plaintiff by the defendant, and converted to the use of the latter.

The plaintiffs, Danforth “ Paterson, July, 80, 1851. “ Peter H. Schenck, Esq., “Dear SiR, — The object of this is to make inquiry in relation to the standing of Messrs. Courtney Schenck & Brother.

This was an action to recover tbe value of certain bousebold and ornamental furniture, which the complaint averred belonged to the plaintiff as a mortgagee, and that the defendants had unlawfully seized and converted the same to their own use.

The action was brought to recover the price of certain goods, which the complaint alleged that the plaintiff had sold and delivered to the defendants, as partners, trading under the firm of Waller & Burr. The sale was stated to have been made between the 1st day of December, 1852, and the 1st of April, 1853.

Appeal by the defendant from a judgment for the plaintiff. The action was by the holder of a check against the drawer, to recover the amount of the check, with interest from the time of its dishonor. The complaint averred the making of the check, its transfer, demand and refusal of payment, and due notice thereof to defendant.

Appeal by tbe plaintiffs from a judgment dismissing tbe complaint with costs. Tbe action was by the plaintiffs, as endorsees, against tbe defendants as makers of a promissory note for $250, dated 17th May, 1851, and payable ten days after date to Hobarfc T. Moore, or order.

Appeal by tbe defendant from a judgment entered on tbe report of a referee, for tbe sum, including interest and costs, of $1,397.96. Tbe action was brought on a promissory note of $1,250.25, against the defendant as maker. The note was dated December 3, 1850; was payable eight months after date, to the defendants’ own order, and was endorsed by him to the plaintiffs.

This was an action to recover $500, tbe penalty of a bond given by the defendant Sturtevant and the other defendants as his sureties, upon his arrest under an attachment issued against him by this court, for his contempt in disobeying an injunction, (vide 1 Duer, 451.) The prosecution of the bond had been ordered by the court, and the action was brought by the plaintiffs as assignees of the sheriff, under the provisions of the Revised Statutes.

Appeal by plaintiffs from a judgment dismissing tbe complaint. The action was brought to recover damages for the breach of a contract of sale.

This action came before tbe court upon an appeal from a judgment. Held: that the Chancellor could delegate the power of consenting, and the order were construed to allow a sale without the consent of a master, there would be a further and insurmountable objection to it; that the consent of the Chancellor, either directly ox through a master, could not be dispensed with, according to the letter or spirit…

The complaint is in these words: Tbe plaintiffs in this action complain of tbe defendants herein, and state and show to tbe court, that they, the said plaintiffs, were, on the 10th day of November, 1852, and still are copart-ners doing business in the city of New York, in the name, firm and style of Tuller, Hutchins & Lassell, and that on the same day and year aforesaid, the said defendants were and still are copartners, doing business in tbe firm name of Davis, Byrne,…

Appeal by tbe defendants from a judgment for tbe plaintiffs, upon a demurrer to tbe complaint. Tbe complaint, after stating tbat tbe plaintiffs were a body corporate by tbe name of “Tbe New York Life Insurance Company,” and referring specially to the several acts of tbe ¿Legislature by which they were so enacted, proceeds as follows: And the plaintiffs further show, that their office and principal place of business is in the First Ward of the City of New York.

<p>To maintain an action to recover the possession of personal property, the plaintiff must prove the legal title to be in himself or a special property with a right to the possession of it, at the time the action is commenced.</p> <p>A stereotyper, who is employed to prepare stereotype plates, and makes them out of materials belonging to himself, and with his own labor, cannot be divested of his legal title to the product or plates, by a tender unaccepted, of a just compensation for his labor and materials.</p>

The defendant is sued as endorser of a note for $234T\\, dated at tbe city of New York, July 30th, 1850, and payable six months from its date, at Augusta, Georgia, to the order of the defendant, and by him endorsed to the plaintiffs. The complaint alleges presentment of the note to the maker, demand of payment; neglect to pay it; protest of the note, and dire notice thereof to defendant.

Appeal by tbe plaintiffs from a judgment at Special Term, dismissing tbe complaint. The action was on a promissory note for $363.09 on which the defendant Place was sought to be charged as last endorser. The complaint was in the usual form, and averred all the facts necessary to be proved to charge the defendant. The answer denied demand of payment and notice of refusal. The action was tried by the Chief Justice without a jury, 26th April, 1854.

The case came up on an appeal from a judgment entered the 11th of November, 1854, upon a verdict, after a motion for a new trial was denied at Special Term. The verdict was for the amount of five certified checks on the bank of the defendants, and amounting with interest to $6,522.66. The facts and the questions of law arising thereon sufficiently appear in the opinion of the court

The action was brought for the delivery of the possession of a piano and piano-stool, which the complainant alleged were wrongfully detained by the defendants, and were worth $200. The answer denied the allegations of the complaint, and the cause was referred by consent to Robert Emmett, Esq., in May, 1854.

The complaint states a cause of action arising upon a sale between certain dates by the plaintiff to tbe defendant of thirty-six dressed hogs, alleged to be worth $327.87, admits a payment of $150 on account, and claimed that a balance was due of, and prayed judgment for, $177.87, with interest from the 15th of October, 1854.

This action came before the court on appeal from a judgment. It was tried on tlie 8th of May, 1854, before Mr. Justice Duer and a jury. It was commenced against the defendant and one Theodore Lent.

These actions were on two policies of insurance, — one by the Commercial Insurance Company for $9,000, the second by the Columbia Insurance Company for $6,000. The, insurance in each was on the steamer Albatross, valued at $60,000, on a voyage at and from Uew York to Vera Cruz, and back to New York. The complaints were in the usual form, and averred a total loss by the perils of the sea, and demanded judgment for the whole sums insured, with interest.

This action came before tbe court on an appeal by tbe plaintiff from an order overruling separate demurrers, interposed to parts of tbe separate answers, of tbe defendants, Aspinwall & Merrick. Tbe action is libel, and tbe complaint states tbat tbe plaintiff is a physician and doctor of medicine, wbo graduated and received bis diploma from tbe College of Physicians and Surgeons of tbe state of New York.

Appeal by defendants from a judgment at Special Term in favor of plaintiff for $588.85, damages and costs.

Appeal by the defendant from a judgment for the plaintiff, for $316.28, including costs. The complaint alleged that the defendant had employed one A. H. Ritchie, to make for him four engravings at the price of $50 for each plate; that Ritchie had accordingly engraved and completed the plates, but that the defendant had refused to receive and pay for them.

The action, was brought to recover from the defendants, the corporation of the city, the' sum of $3,941, for work and labor performed by the plaintiff.

<p>Motion for judgment on a verdict in favor of tbe plaintiff for $203, taken, subject to tbe opinion of tbe court at General Term. That the-case, may be properly understood, it is necessary to set forth, tbe pleadings.. Tbe complaint is as follows: “ Tbe above-named plaintiff complains as follows: Tbat tbis plaintiff, from and prior to tbe first day of September, 1851, until after tbe fourteenth day of September, 1853, was a policeman of tbe city of New York, duly appointed as suck, and entitled to tie exercise of snci office as policeman, and entitled to tie compensation allowed by law tierefor.”</p> <p>And plaintiff furtier says, tiat prior to tie 1st day of September, 1851, ie was duly detailed by tie Mayor of said city to attend as suci policeman, and perform tie duties of policeman, at tie office of tie Ciief of Police, in said city, during tie wiole of tie above specified period, from prior to tie said 1st day of September, 1851,- until tie 14th day of September, 1858, and did; during tie wiole of said period, perform suci duties. And plaintiff furtier says, tiat by an act of tie Legislature of tie State of New York, entitled “ An Act authorizing tie Common Council of tie city of New York to regulate tie salary of policemen in said city,” passed April 10, 1850, tie Common- Council of said city were duly empowered and authorized to fix tie compensation of policemen.</p> <p>And the plaintiff further says, tiat tie said Common Council, in due form of law, passed an ordinance, on tie 18th day of August, 1851, in tie words and figures following, to wit:</p> <p>AN ORDINANCE.</p> <p>Tie Mayor, Aldermen and Commonalty of tie city of New York, in Common Council convened, do ordain as follows:</p> <p>§ 1. Tie salary of captains of police is hereby fixed at tie sum of eight hundred dollars per annum.</p> <p>§2. The salary of the assistant captains of police is hereby fixed at tie sum of seven hundred dollars per annum.</p> <p>§ 3. Tie compensations of sergeants of police, and policemen performing post or patrol duty in their respective wards, shall be for each and every day’s service, at tie rate of six hundred dollars per annum.</p> <p>§ 4. Tie salary of policemen detailed by tie Mayor or Chief of Police for tie performance of any special duty is hereby fixed at tie sum of five hundred dollars per annum.</p> <p>§ 5. This ordinance shall take effect on tie first day of September next.</p> <p>And tie plaintiff furtier says, tiat tie said Common Council, on the 14th day of November, 1851, in due form of law, passed another ordinance, in the words and figures following, to wit:</p> <p>An Ordinance amending an Ordinance fixing the compensation of Captains of Police and Policemen, approved August 18th, 1851.</p> <p>The Mayor, Aldermen and Commonalty of the city of New York in Common Council convened do ordain as follows:</p> <p>§ 1. The third section of the ordinance prescribing the compensations of captains and assistant captains of police, sergeants of police and policemen, approved August 18th, 1851, shall be amended by striking out the words “for each and every day’s service at the rate of,” so that said section, when thus amended, shall read as follows:</p> <p>§ 2. The compensation of sergeants of police and policemen performing duty in their respective wards, shall be six hundred dollars per annum.</p> <p>| 3. This ordinance shall take effect immediately.</p> <p>And the plaintiff farther says, that the said Common Council on the 15th day of September, 1853, in due form of law, enacted as follows:</p> <p>“Resolved, that the pay of the detailed policemen be and is hereby fixed at the same rate as all other policemen, viz., six hundred dollars per annum, to take effect from the first day of January, 1853.”</p> <p>And plaintiff further says, that during the aforesaid period, to wit, from the first day of September, 1851, to September 14th, 1853, he received for his said services as policeman only at and after the rate of five hundred dollars per annum, whereas the amount actually due to plaintiff for his aforesaid services, under the ordinances aforesaid, over and above what he so received, is two hundred and three dollars and eighty-four cents; which amount the plaintiff duly demanded from Azariah C. Flagg, Esq., Comptroller of the city and county of New York, and which said Comptroller refused to pay.</p> <p>Wherefore, the plaintiff demands judgment for the said sum of two hundred and three dollars and eighty-four cents, with interest from the twenty-fourth day of January, 1854, besides costs.</p> <p>The answer of the defendants to the complaint herein, respect-folly shows to the court:</p> <p>First. — That they admit that the said plaintiff was, during the periods mentioned in said complaint, a policeman of the city of New York, and was detailed by the Mayor of said city to attend as such at the office of the Chief of Police, in said city, during the period therein alleged, and they aver that the said plaintiff was appointed as such policeman on or about May 10th, 1850, for the term of four years thereafter.</p> <p>Second. — And these defendants, further answering, admit the passage of the various resolutions in said complaint, set forth., creating and fixing the salaries of captains, assistant captains, sergeants and policemen. And these defendants, farther answering, aYer that it is expressly provided by the act “entitled an act authorizing the Common Council of the city of New York to regulate the salary of policeman in said city,” passed April 10th, 1850: “That (§ 1) the compensation of officers and patrol-men named in this act shall hereafter be fixed by the Common Council, and when so fixed shall not be increased or diminished during the time for which they were, or shall be hereafter, appointed.”</p> <p>Third. — And these defendants, further answering, aver that by an act of the Legislature of the state of New York, entitled, “An act further to amend the charter of the city of New York,” passed April 12th, 1853, it is provided as follows: (§ 10.) “No additional allowance beyond the legal claim under any contract with, the Corporation, or for any service on its account, or in its employment, shall ever be allowed.”</p> <p>And these defendants, farther answering, aver that the ordinance in said complaint referred to, passed September 15th, 1853, raising the pay of detailed policemen to six hundred dollars per annum, to take effect from the first day of January, 1853, was in violation of the first section of the said act of the Legislature, passed April 10th, 1850, and of the said 10th section of said amended charter, (the salary of said plaintiff having been fixed by the ordinance passed August 13th, 1851, at five hundred dollars per annum, as alleged in said complaint,) and consequently was illegal and void.</p> <p>The said defendants, further answering, aver that they have paid to the said plaintiff all that was due to him for services rendered as such detailed policeman, and they deny that there is due to the said plaintiff from these defendants therefor, the sum mentioned in said complaint, or any sum whatever.</p> <p>Therefore, the said defendants, pray that the said eomplaint may be dismissed, with costs.</p> <p>moved for judgment- on the verdict, and argued as follows:</p> <p>I. The third section of an ordinance passed by the-Common Council, on the 18th day of August, 1851, had the effect, in law, to fix the salary of all policemen at $600 per year, notwithstanding the attempt by the' fourth section of the same-ordinance to limit the pay of detailed men to $500 per annum.</p> <p>An act entitled “ An act - authorizing .the Common Council of the city of New York to regulate the salary of policemen in said city,” passed April 10, 1850, (see Laws. 1850, p. 668,) provides that “The compensation of officers-and patrol-men named in--this act shall hereafter be fixed by the Common Council,” &c.</p> <p>Under this act of the Legislature the Common Council, in the 3d section of the ordinance in question, enacted that “ The' compensation of sergeants of police and policemen performing post or patrol duty in their respective wards, shall bej for each and every day’s service, at the rate of six hundred dollars per annum.” This section was amended by an ordinance of the Common Council, passed 14th November, 1851, so as to read, “ The compensation of sergeants of police, and policemen performing duty in their respective wards, shall be six hundred dollars per annum.”</p> <p>The language of the next section is, “ The salary of policemen detailed by the Mayor or Chief of Police, for the performance of any special duty, is hereby fixed at .the sum of five hundred dollars per annum.’.’</p> <p>This 4th section, I maintain, is inconsistent with the preceding one, and directly contrary to the spirit and letter, of the act of 1850, which gave the Common Council power to fix the salary-of policemen, and altogether nugatory and void.</p> <p>II. In any event, the plaintiff is entitled to compensation from the first of January, 1853, to the fifteenth day of September of that year, when the Common. Council passed an ordinance providing “That the pay of the detailed policemen be, and is hereby, fixed at the same rate as all other policemen, viz., six hundred dollars per annum,, to take effect from the first day of January, 1853.”</p> <p>There is nothing in the act of 1850 prohibiting the Common Council from passing the ordinance last named.. The entire section of the Act of 1850, applicable to this subject, is in these words: “ § 1. The compensation of officers and patrol-men named in this Act' shall hereafter be fixed by the Common Council, and when so fixed, shall not be increased or diminished during the time for which they were or shall be hereafter appointed. Police officers, when sent out of the county on public business, shall be allowed all necessary expenses, upon the same being sworn to and approved by the Mayor, and allowed by the Board of Supervisors.”</p> <p>Detailed men, as well as those performing ordinary duty, are “patrol-men.” The salary of patrol-men, or those doing “post or patrol duty,” was fixed by the 3d section of the ordinance of the 18th of August, 1851. The expression is, “performing postor patrol duty in their respective wards.”</p> <p>If detailed men performed “ patrol” duty, and were therefore “patrol-men,” their salary then became fixed at $600 per annum. If they were not “patrol-men,” then the statute does not on its face prohibit the Common Council from raising their salary whenever they see fit. The law imposes upon all policemen the obligation to do duty both in and out of the respective wards where they reside — at all events, whenever their superiors in command shall so direct them. The idea is whimsical and fantastical, of making the locality of their services a criterion as to salary.</p> <p>The service is the same, whether performed in one- ward or another, or in different wards, as their superiors in office shall in their wisdom direct. The statute recognizes no such “ distinction without a difference.”</p> <p>IH. The 10th section of the statute entitled “ An act further to amend the Charter of the City of New York,” passed April 12th, 1853, which provides that “no additional allowance beyond the legal claim under any contract with the corporation, or for any service on its account or in its employment, shall ever be allowed,” has no application to this case.</p> <p>Here the rule laid down in Dwarris on Statutes, 558 :• “A thing which is in the letter of the statute is not within the statute unless it be within tbe meaning'of the enactment,” should be borne in mind.</p> <p>The whole of this section relates to contracts, express or implied. This is the subject matter of the section. Within every rule of legal construction or even of verbal criticism, the language employed should be construed with reference to that subject matter. Throughout this statute, where the word “contract” appears, it is palpable that it refers to an express contract. This is sufficiently apparent from the 12th section, which is in these words: “ § 12. All work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than two hundred and fifty dollars, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice for the frill period of ten days; and all such contracts, when given, shall be given to the lowest bidder with adequate security. ' All such, bids or proposals shall be opened by the heads of departments advertising for them, in the presence of the Comptroller and such of the parties making them as may desire to be present.” ></p> <p>The expression in the 10th section, “under any contract with the corporation” means a contract over $250, which must be made in the particular manner designated by the 12th section.</p> <p>The phraseology “ or for any service on Its account, or in its employment,” refers to work done, not “involving an expenditure of more than two hundred and fifty dollars,” and to cases where there is no express contract, but one implied in law.</p> <p>The latter clause of the 10th section was necessary, in order to prohibit the Common Council from paying “ additional allowance beyond the legal claim,” existing against them, where the amount involved does not exceed $250. The whole object of this section was to prevent contractors from pillaging the public treasury.</p> <p>“ The real intention will always, in statutes, prevail over the literal sense of the terms.” (Dwarris on Statutes, 557.)</p> <p>The doctrine has been fully settled By the court of last resort, that the right to compensation, as regards salaried officers, grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him. (Conner v. The Mayor, &c., 1 Sel., 285; Warner v. People, 2 Denio, 272.)</p> <p>The plaintiff is clearly entitled to judgment for the amount, for which a verdict was taken.</p> <p>I. The plaintiff is not entitled to recover. 1. By the act entitled “ An Act authorizing the Common Council of the City of New York to regulate the salary of policemen in said city,” passed April 10th, 1850, the Common Council have an exclusive discretion in regulating and graduating the compensation of the-various members of the police department. (Laws of 1850, p. 668.) 2. The only limitation placed upon their discretion in this respect, is that which prevents them from increasing and diminishing the compensation when so fixed during the time for which the officer or patrol-mañ shall have been appointed. (Id.) 3. The ordinance of August 18th, 1851, making a distinction between the salaries of patrol and detailed policemen, was, therefore, valid.</p> <p>II. The ordinance of the Common Council, passed September 15th, 1853, was illegal, and tfull and void. 1. The compensation of the plaintiff having been “fixed” by the ordinance of August 18th, 1851, the Common Council have no power to increase or diminish the same during the time for which the plaintiff had been appointed. (Laws of 1850, p. 669.) The People, ex rel, Stuart, v. Edmonds. Opinion — Clerke, J., Special Term; Morris, J., General Term. 2. The “Act” in relation to the police department in the city of New York, passed April 13th, 1853, gave the Common Council no power to increase the compensation of officers, policemen, or doormen, who were appointed under the act of 1850, and whose terms had not expired. 3. The ordinance is in conflict with the provisions of the 10th section of the Amended Charter of 1853. The only “ legal claim” which the plaintiff had against the corporation at the time of its passage, was a claim to compensation at the rate of $500 per annum, under the ordinance of August 18th, 1861.</p> <p>LV. The complaint should be dismissed, with costs.</p>

Motion on behalf of the plaintiffs for judgment, and a verdict in their favor, taken subject to the opinion of the court at General Term.

This action was brought to recover from tbe defendant tbe amount of four checks payable to bearer, drawn by themselves and. dishonored by the bank on wbicb they were drawn. The aggregate amount of the checks was $800. The cause was tried before Slosson, J., and a jury, on the 6th of December, 1854.

Appeal by tbe plaintiffs from a judgment dismissing tbe complaint, with costs. Tbe complaint was for work and labor performed, and materials furnished by tbe plaintiff, at tbe request of tbe defendants, in tbe excavation and completion of a common sewer in tbe city of New York, and averred that tbe same were reasonably worth. $10,000, for which sum judgment was demanded. The defence' was, a payment in foil.

This was an action, to recover tbe possession of a lot of ground, and of tbe building tbereon, known as No. 109 in' Washington street, in tbe city of New York. Tbe cause was tried on tbe issues made by tbe pleadings before Slosson, J., and a jury, 26tb and 27tb of October, 1854. Tbe plaintiff, to maintain tbe issue on bis part, produced and read in evidence— 1.

Appeal by the defendant from a judgment in favor of the plaintiff, for $732.16, with interest and costs. Held: if the defendant would give a new note, bearing simple interest; the defendant did so; the note was withdrawn from the bank, and the present note — the one in evidence — substituted.

This was an aetion against the defendant Wilder as the drawer, - and the defendant Smith as the endorser of a promissory note for' $1,797.63. As several questions on the trial arose on the pleadings, it is neeessary to state them m extenso.

Appeal by tbe defendants, from a judgment in favor of tbe plaintiffs, for $2,685.36, including costs. Tbe action was against tbe defendant, Sisson, as tbe acceptor, and tbe defendant, Loomis, as tbe drawer of two bills of exchange —each is for tbe sum of $2,000 drawn by Loomis, in New York, payable to bis own order, and endorsed by bim, and addressed to Sisson at Poughkeepsie, and there accepted.

<p>The terms of § 111 of the Code, that “every action must he prosecuted in the name of the real party in interest,” are imperative, and are subject to no exceptions other than those stated in § 118. Hence, since the Code, even a dormant partner is a necessary party as a plaintiff in an action for the recovery of a partnership debt, founded on a partnership contract, -whether the relief sought be legal or equitable.</p> <p>Each partner is not a trustee for his copartners, and hence is not a trustee of an express trust, within the meaning of § 118 of the Code.</p> <p>Judgment dismissing complaint affirmed, with costs.</p>

This action was brought to recover damages for the conversion, by the defendant, of personal property alleged to belong to the plaintiff. It was tried on the 10th of May, 1854, before Mr. Justice Duer and a jury. One Charles Lupton was examined on behalf of the plaintiff, and gave evidence tending to show that the property was owned by the plaintiff.

<p>The owner of a building which is in a course of construction under a contract, is not answerable for injuries to a third'person, which appear to have been ocea, sioned solely by the negligence or misconduct of the contractor or his servants.</p> <p>But an action for damages is maintainable against the owner, when an act of the contractor resulting in an injury to third persons, appears to have been done in execution of the contract, and in accordance with its terms.</p> <p>So when an act of the contractor creates a nuisance, the owner, if he suffers it to remain, is liable to every person whose rights or interest it may injuriously affect.</p> <p>Held, that as the case before the court did not fall within either of these exceptions, the defendant xras entitled to a judgment, dismissing the complaint, with. costs.</p>

<p>Although before the Code the sheriff could uot be made liable, as a trespasser, for taking the goods described in a -writ of replevin, from the possession of a third person, claiming to be the owner, yet in the action which the Code has substituted for that of replevin, he can only take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant himself, or of his agent.</p> <p>The provisions of § 216 of the Code, requiring, that when the property taken by the sheriff is claimed by any other person than the defendant or his agent, such person shall make and serve upon the sheriff an affidavit, showing his title to the property, and his right to the possession, are only applicable when the property is taken by the sheriff in the proper discharge of his duty, from the possession of the defendant or of his agent.</p> <p>The sheriff, although not personally present when goods are wrongfully taken by a deputy, is yet liable as a trespasser for the acts of the deputy, and may therefore be joined with the deputy as a defendant in an action for the recovery of damages from the wrongful taking.</p> <p>The defendants in such an action, when the wrongful taking is proved, are not allowed to set up, as a defence, a paramount title in a stranger.</p> <p>The rule of damages is the market value of the property when wrongfully taken.</p> <p>Judgment for plaintiffs, with costs.</p>

<p>An infant child of one of several tenants of a dwelling-house and premises who hired, each a distinct part thereof, was injured by the breaking of a stone covering a vault attached to the house, while he was standing upon the stone. It did not appear by the pleadings, whether this stone was within a public street, or wholly on the premises of the defendants, the owners and lessors. Held, that a cause of action is not established merely by proof, that the defendants were owners and landlords of the premises, and that while the plaintiff stood on this stone, it broke, and he fell into the vault beneath, and was injured. It is necessary to prove some fault or negligence of the defendants, which caused the casualty. If the defendants erected the building, or had it done by a contract calling for materials, or workmanship, which would leave the covering of the vault insecure, and if they knew this, or if by such inquiries as a discreet person would make under the circumstances, they would have ascertained this, they ' would be guilty of negligence in so building, or in making such a contract. In such a case, a person injured, by such a covering, if free from negligence himself, could recover.</p> <p>If it is sought to make the defendants liable on other grounds than those of negligence, in not constructing the cover of the vault properly, or in not keeping it in a proper condition; such as that the area is within a public street, or that a duty imposed by some municipal ordinance has been violated, those grounds should be stated in the complaint, so that issue can be taken upon them, and the defendants may come prepared to try those issues.</p>

Appeal by tbe defendant from a judgment in fayor of tbe plaintiff. Tbe action was brought by tbe plaintiff, as endorsee of a promissory note, bearing date tbe 8tb day of February, 1854, wbicb tbe complainant averred was made by tbe defendant, and whereby be promised, for value received, to pay tbe sum of $100 to tbe order of one Henry Fiorelli.

This was an action for tbe recovery of real property, and damages for its detention, and was tried before tbe Chief Justice and a jury, in January, 1855, wben a verdict was taken for tbe plaintiff, subject to tbe opinion of tbe court at General Term, upon a case and exceptions.

This was an action by tbe plaintiff, as endorsee, against tbe defendant, as maker of a promissory note for $438.40. Tbe complaint stated tbat tbe note was dated on tbe 30tb of October, 1852, was payable six months after date .to tbe order of one James D. Potter, and by bim was endorsed to tbe plaintiff. It averred demand and refusal of payment, and demanded judgment for tbe amount of tbe note, witb interest.

Appeal by tbe defendant from a Judgment at Special Term in favor of the plaintiff. The action was brought to compel the defendant to assign to the plaintiffs, a lease of certain premises in . Broad street, in the city of Hew York, upon the ground that he had taken the lease in his own name, in fraud of their right, and in violations of an agreement by which he had transferred to them for value, the good-will of a subsisting lease.

This action, was tried before Mr. Justice Slossom, and a jury, on the 13th of December, 1854. • It came before the General Term, on exceptions taken to the charge of the Jndge. It is brought to recover the value of a mare belonging to the plaintiff, and alleged to have been killed while being driven in Eiffch avenue, near 32d street, by the negligent, careless, and improper driving of a wagon and horses of the defendant, and by his servant.

This action came before the court, on an appeal from a judgment in favor of tbe plaintiffs, upon a trial bad before Boswortb, J., without a jury. Held: gave a right to the innocent holder. A special action of assumpsit will lie on behalf of the holder of a certificate against a corporation, for refusing to permit a transfer. {Kortright v. The Commercial Bank of Buffalo, 22 Wend. 348; Morgan v. The Bank of North America, 8 Serg. & Rawle, 87; Matter of Shipley, 10 John.

<p>Boa-worth, J., dissented on the grounds, 1st. That the questions arising on the merits of the case, had been decided adversely to the plaintiff, by the late Court of Chancery. That this case disclosed no considerations of such cogency or importance as justified a review and reversal of the judgment of that court.</p> <p>2. That if this court could take jurisdiction of such an action, it must he for the reason that an author has, at common law, a property in his unpublished manuscripts. That it has no jurisdiction of actions relating to property, unless the matter in controversy, exclusive of costs, exceeds §100. That this action being brought to enjoin the publication of a single letter, possessing no literary merit or actual value, and it not being alleged that such publication would either produce damage, offend good taste, or wound the feelings of any one, the court is precluded by statute from taking jurisdiction.</p> <p>8. That this court has no jurisdiction of an action to prohibit acts, merely on the ground that the performance of them would violate the courtesies of life, or be an abuse of private confidence, when such acts will neither affect property of the value of, nor produce injury amounting to, $100.</p> <p>4. That it is very doubtful, whether state courts can take jurisdiction of such an action, in any case, since Congress has legislated upon the rights and remedies of authors and inventors, whatever may have been the practice previously.</p>

This was an action of assumpsit. It was commenced and issue was joined in it before tbe Code. It was tried in 1852. Tbe jury, under tbe direction of tbe court, found a verdict for tbe defendant. Tbe questions of law arising in tbe case were directed, by tbe justice trying tbe cause, to be first beard at tbe General Term, and tbe entry of judgment to be in tbe mean time suspended. Tbey were so beard, and judgment was there directed to be entered in favor of tbe defendants.

Aftes the General Term had ordered a new trial in this action, for the reason that the deposition of Strakosch, which had been taken de bene esse, was allowed to be read without sufficient proof of his continued absence from the state having been first given, the plaintiff, on due notice and on affidavits served therewith, moved the General Term, for an order permitting him to prove at the bar of the court, or before a referee to be appointed, that Strakosch left the state…

Tbe plaintiffs bad brought two actions against tbe defendants, botb upon tbe same contract, but for two distinct instalments accruing upon it. Tbe first suit was commenced on January 8, 1855, at wbieb time tbe instalment sought to be recovered in tbe second suit was not due. Tbe second suit was commenced on tbe 17th February following. Tbe actions were at a considerable distance from each other upon tbe calendar.

This case came before tbe court, on an appeal by tbe defendant from a judgment, ordered in favor of tbe plaintiffs, under § 247 of tbe Code, on account of tbe frivolousness of tbe answer. Tbe complaint stated a loan made by plaintiffs to defendant, of $7667⅞⅜, for wbicb sum and interest it prayed judgment.

This is an appeal from an order of Mr. Justice Boswbrth, directing this action to.be removed into the Circuit Court of the United States, for the southern district of New York. The action was commenced against Palmer, Cook & Co. as partners, by force of a summons on Palmer only. All of tbe defendants are citizens of California, and tbe plaintiff is a citizen .of Hew York.