Volume 11 — Jones & Spencer's New York Superior Court Reports

Appeal by defendant from a judgment for $16,523.55 in favor of plaintiffs, entered upon the report of three referees. The action was brought to recover damages for a conversion of goods by a warehouseman. The answer was that the goods had been stolen without fault on the part of defendant. It was admitted that the warehouse in question was a United States bonded warehouse.

The action was to recover possession of a lot of land. It was originally commenced by Sarah L. Hudson, as plaintiff, and on her death Louisa B. Cooper was substituted as plaintiff. The issues were tried once before and a verdict directed for the defendants, plaintiffs’ exceptions to be heard at general term in the first instance.

<p>EQUITY.</p> <p>In equity, action will lie to recover interests in property, where parties have obtained the legal title to the same by a series of fraudulent and unconscientious acts and dealings.</p> <p>Where one, by a series of such acts, and by collusion with others, has placed a party in a situation of embarrassment for his own advantage, and then availed himself of the opportunity to obtain the property of that party, by a purchase or transfer through other parties with whom he is in collusion, at a sacrifice, he can be called to account in an equitable action.</p> <p>A court of equity could and should afford relief against such fraudulent action, although no false statements appear to have been made in the premises.</p> <p>In this case, however (the general facts appearing in the opinion of the court), it was held that the evidence fell far short of establishing such a case.</p>

This case comes before the court on the defendant’s appeal from a judgment entered on a verdict and from an order denying a motion for a new trial. The complaint alleges the receipt by the defendant as a common carrier of the plaintiff’s portmanteau on October 8, 1870, and the defendant’s failure to deliver it.

Appeal by plaintiff from order refusing to grant costs to be paid out of the estate of defendant’s testator, the plaintiff having recovered judgment.

Appeal by defendant írom judgment entered upon verdict of jury, and from order denying motion made on minutes for a new trial.

<p>The action is brought to dissolve marriage on the ground of adultery of the defendant with one William Zandt.</p> <p>—The answer denies the adultery and alleges con-donation. Upon consent an order of reference was made to hear and determine all the issues. The referee reported in favor of the plaintiff upon all the issues. The defendant duly filed her exceptions to the referee’s report. The plaintiff moved upon the referee’s report and the testimony to confirm such report. The defendant moved at the same time upon the exceptions, report and testimony, to vacate such report, and for further relief. Defendant’s motion was granted and plaintiff’s motion denied. Upon the settlement of the order defendant’s attorney made default, and plaintiff’s attorney entered. an order recommitting the report and testimony to the referee. Upon motion this default was opened, and after full argument an order was made dismissing the complaint upon the merits. A decree was entered accordingly. Plaintiff appealed from the order of dismissal and the judgment entered thereon.</p> <p>—That the issues in the case were referred to the referee to hear and determine the same, not to take testimony and report the same to the court, as was the chancery practice where such matters were sent to a master in chancery. The report of the referee in this case, like the verdict of a jury in a case of conflicting evidence, is conclusive as to questions of fact. He takes the testimony, sees and hears the witnesses, and is quite as well able as a jury to come to a correct conclusion upon the facts (Davis v. Allen, 3 N. Y. [3 Coms.] 168 ; Ritter v. Cushman, 35 How. Pr. 248 ; Hoagland v. Wight, 7 Bos. 394). The rule of the court that no judgment in an action for divorce shall be entered except upon the special direction of the court, was adopted doubtless with the object of preventing any possible fraud or collusion of the parties. It never was intended, that a judge, sitting at special term, should have the powers of an appellate court, to decide upon the weight of evidence, in a case where there was a conflict of evidence, and to review exceptions in a case after a referee in a contested trial to whom the issues have been referred to hear and determine, and before whom a long and careful trial has been had, has made his decision. The statute provides for a trial by a referee, and no rule can alter that statute. In Waterman v. Waterman, 37 How. Pr. 43, the court say: “The Code does not allow of a reference to take the evidence and report it to the court, with the opinion of the referee merely, nor of any reference, except for a trial of the issue in a case where an issue has been joined in the action. It is a part of the system inaugurated by the present constitution (art. 6, sec. 10)—that the former practice in equity suits by evidence taken before an examiner, and not in the presence of the tribunal deciding the issues, should be done away, and it is only in cases where no issue has been joined, or where some interlocutory question is involved, that a reference to take and report evidence is not allowable ” (Code, §§ 271, 246). Same case, p. 40: “It is true that the authority of this court to grant divorces is derived from the statute. The title in the revised statutes, which confers the authority, shall be exercised by the ordinary proceedings in a chancery suit, except when it makes specific provisions to the contrary (2 R. S. 142, 149, 1st Ed.). Under the Code, the requirement that the facts contested by the pleadings shall be tried by a jury is modified by section 253 as follows : “An issue of fact in an action for a divorce from the marriage contract on the ground of adultery must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided by sections 270, 271. Here is a clear authority to dispense with a jury trial and substitute a trial, by the court or referee.” The referee takes the place of the court or jury, and the report of a referee in a case at issue should be confirmed, leaving the party defeated to his or her remedy of appeal. The case of Renwick v. Renwick, cited by the chief justice, in 10 Paige, 420, in support of the doctrine “ that, no matter what may have been decided by the referee, the court must finally determine” has no application to this case, and does not in the slightest degree militate against the propositions we have set forth under this point. That case was decided in 1843 under the chancery practice. Ho defense was interposed, and the matters were referred to a master in chancery, to take proof of the facts and report the same, with his opinion ; not to hear and determine, as is now the practice. The case of Van Epps v. Van Epps, in 6 Barb. 320, also cited by the chief justice, was also under the chancery practice (1843). The case of Merrill v. Merrill, 11 Abb. N. S. 74, sustains our position. Judge Jones says: “When an issue is joined, that issue must be disposed of in some way authorized by the law. It can be disposed of only by a trial and there are but three modes of trial: one by jury, and one by the court, and one by a referee (Code, §§ 253, 254, 255). When issues joined in the cause are referred, the referee must determine the issue. The report of the referee should therefore have been confirmed, leaving the defendant to seek her remedy by appeal if she so desired. There are no exceptions in the case, taken by her, which are at all tenable. While the appellant insists that the only proper course for the learned chief justice who heard the motion, to pursue, was to confirm the report, still if there was any irregularity or any requirement of the statute which had not been complied with, the only other order that the court at special term could make was an order recommitting the report and testimony of the refereé to take further proof of the facts, and the order of October 16, 1876, was therefore proper, and should have been allowed to stand. The practice is the same whether the cause be submitted on the report without an appearance by the defendant, or on argument of exceptions to the report (2 Van Santvoord’s Equity Practice [2nd Ed.] 240). The order of January 27, 1877, vacating the order of October 16, 1877, denying the plaintiff’s motion, and dismissing his complaint on the merits, and the judgment thereon of March 5, 1877, both of which have been appealed from, should be set aside, and an order entered confirming the referee’s report, leaving the defendant to her appeal therefrom. Under the statute (2 R. S. 145, § 40) “the court may award a new or further trial of such issue, as often as justice shall seem to require.” If this plaintiff is not entitled to his judgment absolute, justice certainly requires that a new trial should be ordered.</p> <p>—That the court, at a special term, had full power to vacate the referee’s report and to dismiss the complaint on the merits of the case. 1. A motion to this effect had regularly been made, and notwithstanding the referring of all the issues to the referee, to hear and determine, the court still retained its supervisory power (Sullivan v. Sullivan, 9 Jones & S. 519; see also opinion of the chief justice, and cases cited). The appellant assumes the position that the court cannot malte any decree at all, should it, in the exercise of its supervisory powers, consider that the findings of the referee were improper ; that it must in such case invariably recommit the report. Suppose this to be done, once and repeatedly—say fifty times, and still the same report is sent in, and the court still considers the findings unsupported by the testimony, though the merits have been fully and exhaustively developed, must there never be a final decree? must there be a perpetual game of battledore between the court and the referee ? When can a final decree be, made ? “ When all the facts and circumstances, material and necessary to a complete explanation of the matters in litigation are brought before the court, and so fully and clearly ascertained on both sides, that the court is enabled, upon a full consideration of the case made out and relied on by each party, finally to deter- • mine between them, according to equity and good conscience” (1 Wait Pr. 438). 2. The statute, in express language, authorizes a dismissal of the complaint when forgiveness is shown. Supposing the appellate court to hold broadly that in an action for divorce on the ground of adultery, where all the issues are referred, the court, at special term, has no power to give judgment contrary to the findings of the referee upon the issue of adultery, it must make an exception when the defense of condonation has been established. The statute says : “Although the fact of adultery be established, the court may deny a divorce in the following cases :......2nd. Where the offense shall be forgiven, &c.” (3 R. S. [5th Ed.] 236, § 55). The learned chief justice, in his opinion, says : “ The proof of the forgiveness by the plaintiff of the alleged offense of defendant is so fully in accordance with the statute that, even if the defendant had committed the offense, the plaintiff could not maintain his suitand the court, therefore, by virtue of the power conferred by statute, denied the divorce—i. e., dismissed the complaint. This power to deny a divorce is clearly conferred upon the court, and not upon the referee. The opinion of Mr. Justice Monell, in Amory v. Amory (6 Robt. 516), is analogous. Though the appellate court see fit to vacate and reverse the order and judgment appealed from, it would not be proper to go further and confirm the report of the referee, and give judgment in favor of the plaintiff. Though the appellate court should hold that an error was made at special term, and that the court exceeded its powers in dismissing the complaint, even then the plaintiff should not have a new trial. The interests of justice do not require it, and from the merits of the case, the plaintiff does not deserve it.</p>

The action was for personal injury occasioned by defendant’s negligence. The jury rendered a verdict for plaintiff for $1,000.

<p>APPEAL; WITHDRAWAL AND DISMISSAL OP.</p> <p>Where an appeal has been dismissed on the consent of the only appellant, no other party to the aetionhas a right to move the general term afterwards for an affirmance of the order or judgment appealed from. The party appellant or the parties appellants are the only parties who can move the court in favor of the appeal.</p>

The complaint alleged a sale and delivery of 1051 carboys of oil of vitriol or sulphuric acid by plaintiff to defendant, and the action was brought to recover their price. The answer set forth a written contract, alleged that plaintiff failed to deliver a large number of the carboys called for thereby, and claimed damages by reason thereof.

<p>Appeal from a judgment and order denying a new trial. The facts in the case appear in the opinion of the court.</p>

The complaint averred that plaintiff by deed, conveyed certain real estate to defendant for the price or sum of $30,000, which said sum the defendant agreed to pay to the plaintiff, deducting therefrom all existing mortgages, liens and incumbrances to the date of said deed, and to which mortgages, liens and incumbrances, said lots were sold subject. That the plaintiff duly delivered said deed to the defendant, on or about said ¡November 27, 1872.

An appeal from an order of the special term directing the sheriff of New York county to satisfy an execution issued to him in this action against the property of the defendants, upon the ground that the defendants have paid on account of another execution issued against the plaintiff by virtue of section 293 of the Code of Procedure.

This is an appeal from a judgment, entered on a verdict in favor of the plaintiffs, and also from an order denying defendants’ motion, made on the judge’s minutes, for a new trial.

<p>I. Court of Record.</p> <p>1. POWER OVER PROCEEDINGS IN ACTIONS PENDING THEREIN.</p> <p>(a) Has inherent power, irrespective of statutory provisions, to modify or vacate and set aside its own orders, judgments, and proceedings, in its discretion.</p> <p>1. In whose behalf exercised. May be exercised in behalf of the party by whom and in whose favor the order or judgment was entered, or the proceeding had.</p> <p>2. Hmrnple.</p> <p>(a) Setting aside taxation of costs so as to allow a MOTION FOR AN EXTRA ALLOWANCE TO 33E MADE.</p> <p>1. On motion of the party who inadvertently taxed his costs the court set aside the taxation so as to remove an objection theretofore made under general rule 66 to a 'motion made by him for an extra allowance.</p>

The petitioner claims that he is entitled to receive an award for damages to certain premises, made by the assessors on changing the grade of Manhattan street. Held: is liable to bp deprived of it without the advantage of a suit or proceeding where his rights can be passed upon by a jury or asserted on appeal.

In this action, judgment was entered upon the report of a referee, in favor of the plaintiff, against the defendants, for $37,077.56. Both plaintiff and defendants appealed. The plaintiff, by his complaint, alleged that on or about September 15, 1870, he procured for the defendants a sale to the French government of arms and military goods, at the aggregate price of $286,937.93.

At the trial of this action, after the testimony was taken, the court directed a verdict for the defendant, and ordered the' exceptions to be heard in the first instance at the general term. The complaint was upon two promissory notes, charging the defendant as indorser.

<p>RECEIVERS, SUBJECT TO ORDERS OP COURT.</p> <p>Neglect or refusal to comply with such orders subjects him to punishment by fine and imprisonment, for contempt.</p> <p>The summary jurisdiction of the courts, under the common law, to punish a delinquent officer for disobedience to its lawful order, has not been restricted by statute.</p> <p>It is sufficient if the party charged with contempt had reasonable notice of the application to punish him, and was served with copies of the affidavits upon which it was based. The law does not contemplate an idle ceremony in serving papers that have already been served, and which are in the possession of the party accused, and are referred to in the order to show cause, served on him (Albany City Bank i>. Schermerhorn, 9 Paige, 375).</p>

The facts are sufficiently stated in the opinion of the court. —I. It may be conceded for the . purposes of this case, that the answer does not set up a defense in bar of plaintiffs’ claim. It is a counterclaim. The learned judge below sustained the demurrer because the answer was called a defense, and not a counter-claim. It has been expressly decided that such misnomer—if such it be—is not an objection of any validity (Springer v. Dwyer, 50 N. Y. 22). II.

Appeal by the plaintiff from the order of the special term, staying his proceedings until final judgment in an action pending in the supreme court, wherein the defendants are plaintiffs and this plaintiff is defendant.

The action was for a dissolution of the marriage bond. On May 13, 1876, an order was' made at the special term, on the defendant’s application, that the defendant have sixty dollars to be paid to her or her counsel for the defense of this action, and that she be allowed the sum of §3.50 per week, as alimony herein.

, denying, with costs, a motion to vacate a judgment for irregularity. The plaintiffs are children of the late Johanna Christian Offinger, who, upon his death, left them, by will, certain real estate in the cities of ¡New York and Hoboken, subject, however, to the life estate of their mother, his widow. She afterwards died intestate. At the request of the plaintiffs, defendant, De Wolf, thereupon took out letters of administration, upon the estate of the late Mrs. Offinger.

By the judgment rendered at special term, August 3, 1875, the defendant was directed to surrender to the plaintiff the possession of the premises described in the complaint, upon payment to it, within one month, of the sum of $4,507.16, which had been found and reported to be due and owing by plaintiff. to defendant, as of May 31, 1875, less the sum of $1,010, being half of the disbursements paid by plaintiff for referee’s fees.

Appeal by plaintiff from a judgment entered on a verdict in favor of defendants. The action is upon a negotiable certificate of indebtedness, of which the plaintiff claims to be the lawful owner and holder, by virtue of its indorsement to him, by the payee and another, for value and before maturity.

In the year 1867, the plaintiff was employed by the supervisors of the county of New York, as an attendant upon the supreme court of the State of New York, held in and for the city and county of New York, and continued to perform the duties required of him as such attendant until May 1, 1872.

<p>Receipt purporting to be in full, and to be an absolute bar to all claims and demands, is subject to explanation, and does not conclude the party making the same, from proof of facts and circumstances showing, that it was not in full, and that there were existing claims and demands unpaid, although not due at the time the receipt was given (Ryan v. Ward, 48 JJ. Z. 204 ; Bliss ®. Shwarts, 65 W Z 444).</p>

The complaint averred: (1) That on June 1, 1874, at Bergen, in the State of New Jersey, the defendant, Charles D. J. Noelke, made his certain promissory note in writing, dated on that day, and… Held: the rule as settled in Hull v. Marion, 2 Sup. Ct. (T. & C.) 420; affi’d 59 N. Y. 652; Moore v. Cross, 19 N. Y. 227; Murphy v. Merchant, 14 How.

<p>Appeal from judgment dismissing the complaint.</p>

This action is brought for an accounting between partners. Held: that even if Ballard and Halley were, as alleged, insolvent, the principle adopted was the correct one.

<p>Appeal by defendant from judgment entered upon verdict of jury, and from order denying motion for new trial.</p> <p>The plaintiff in this case was driving a loaded wagon along the track of defendant’s railroad. One of defendant’s cars approached behind him. Plaintiff turned his horse to drive off the track. Before the wagon had got entirely clear of the track, the car struck its tail and upset it. Plaintiff’s wagon and horse, and himself were injured. To recover for these injuries the action is brought.</p> <p>There have been two trials of the cause.</p> <p>Upon the first trial a verdict was directed for the defendant upon motion, oh the ground that no negligence had been shown on the part of defendant, and that the plaintiff had been guilty of contributory negligence, judgment was suspended, and the exceptions ordered to be heard at the general term in the first instance. The decision of the trial term was affirmed (33 Superior Ct. 186).</p> <p>From the judgment thereupon entered, the plaintiff appealed to the court of appeals, and the case came up for argument before the commission of appeals, which by a vote of three to two reversed the decision of this court, and held that there was a question for the jury (65 N. Y. 554).</p> <p>The second trial was had before Judge Sedgwick and a jury. The judge submitted the cause to the jury-</p> <p>The charge of the judge, with the above statement, sufficiently indicates the nature of the case, the evidence, and the facts.</p> <p>The charge, with the exception of two passages which are not material here, was as follows :</p> <p>Gentlemen :—The most general rule of law that is ' applicable to this case is that the driver of the wagon, the plaintiff, and the driver of the car, were each of them bound to use the prudence of a man of ordinary caution and intelligence. In their conduct they must come up to that standard. Neither is held to extraordinary care, but to the care that is given by men of ordinary caution and ordinary intelligence, under the circumstances that you shall find to exist. Of course it is impossible that the law should make any other standard than that. You do not try to weigh a man’s faculties and see how smart he was, how bright, how attentive, and say whether or not as a matter of fact he was as prudent as he could be by nature. It would be impossible for a jury to do that, or a court, if they attempted it. They can only compare a man’s actions with ordinary prudence and "care, as the jury know it from their own experience. And that rule of law you will keep in mind, of course, in passing upon the facts of the case, in saying which party in this controversy is wrong.</p> <p>The next rule of law which it is required that the courts shall turn the attention of the jury to, is that the plaintiff must make out a case. If he does not establish by a preponderance of evidence what it is necessary for him to prove in making out such a case as this, then the jury cannot say that he has made out a case, and must find for the other party.....I have omitted two 'witnesses for plaintiff—the boy and the officer, Mr. Greubelstein. As to the boy, it is right that you should bear in mind that at the time of the transaction he was eleven years of age. If he was then what he is now, he was, undoubtedly, a smart, clearheaded, honest young fellow, but his youth affected his capacity to observe many facts at the same time. That is, the best cultivated minds, and having the quickest sight and the quickest faculties, can see several things at once, and weigh them at once. The more immature or the less cultivated they are the more the attention is fixed upon a part of a transaction. I do not mean, in saying that, that you shall disregard the boy’s testimony, or to weaken its effect in any way; I merely call your attention to that fact, which is a fact which you must consider in weighing his testimony.</p> <p>Then in regard to Mr. Greublestein’s testimony— you have had him before you.....</p> <p>You will reconcile the testimony together. It is not necessary for you to take the whole of any one witness’s statement. You may take parts, and take all the probabilities of the case, and all these considerations that I have alluded to, and say what, as a matter of fact, occurred at that time, putting these facts together in their natural and probable order. And in judging, in the way that I have endeavored to describe, you will get considerable aid in judging of the probabilities of the case from such undoubted facts as there may be in the evidence.</p> <p>I think this fact is clearin the beginning, but you must say whether it is or not. Groeneman, the boy, could not say when Adolph, the plaintiff, came on Avenue A. The witnesses for the defendant, three or four of them—four, I think—the driver, the conductor and the two Dempseys—say that he came on the avenue and on the track of the defendant, and was before the car of the defendant between Fifteenth and Sixteenth streets. Now, Mr. Adolph does not say when he came on, and does not explain that, and therefore, unless you disregard the whole of the testimony, and do not take into consideration those things that I have said as to the absence of any testimony on the part of the plaintiff, then I think you will come to the conclusion that the loaded wagon which Mr. Adolph, the plaintiff, was driving, was on the railroad between Fifteenth and Sixteenth streets, and the car was behind it. Now, if that be the case, gentlemen, you will apply your minds to what would be probably done under the circumstances, and then say as to whether or not the evidence of the" witnesses for this defendant is true—that from the point at which, between Fifteenth and Sixteenth streets, the plaintiff did come on, they were calling to him and whistling, etc. Mr. Dempsey thinks they called once before the final accident. Mr. Donovan says it was several times. The driver’s testimony on that point you have heard, and the other Dempsey’s testimony. Now say whether you think he was called to several times.</p> <p>A Juror: I would like to ask a question. Does it appear in the evidence where the car was when he saw them come on the street % The car may have been back three or four blocks.</p> <p>' Mr. Vanderpoel : Half a block.</p> <p>The Court : That is a very material consideration, but whether it was or not, you take all the facts together, that it was within that distance that it required the hallooing, if yon believe that was done, and also the car to vary its speed according to the rate of the wagon ahead of it; consider the facts as they are.</p> <p>Mow, if those facts are established, what was the duty of the plaintiff in respect of it ? He had as good a right on that track as the defendant’s car; there was no superiority of right; he had a right to travel on the track. But the defendant’s car could move but in one direction—on the rails—and therefore the law says that it is the duty of a wagon situated as the plaintiff’s wagon was, to get out of the way of a car immediately behind it, using reasonable care for that purpose, and all the speed that might be reasonably required under the circumstances ; and in addition, as it was the car driver’s duty to observe the wagon ahead of the car, on the other hand it was the duty of the driver of the wagon, the plaintiff himself, knowing that this was the condition of things, knowing how this track was occupied, knowing that cars were coming along, to give that attention to the situation of things behind him that might be called for from a man of ordinary intelligence, while at the same time he was doing his other duty in looking ahead of him, and on both sides. That is, it was not his positive duty to keep a lookout behind at all times, because it was his duty to look ahead and on each side ; but he was to give some attention to it, and such attention as you, as jurymen, think should be reasonably given under those circumstances. Then you will say whether or not, if giving that reasonable atttention, he could have known that this car was following behind him, and was intending to assert its rights to pass along the track, and could have gone off on the west side, the east side by the conceded testimony being obstructed. If he did not give such attention, then to that extent the plaintiff would be guilty of contributory negligence, if that negligence led to the accident.</p> <p>These are considerations immediately prior to the time of the accident happening. Now the accident is about to happen and there is a conflict of testimony; I think the broadest conflict of testimony that there is. Mr. Q-roeneman says that the car was thirty or forty feet off when he heard the car-driver halloo, or first noticed the car. The plaintiff says it was fifty feet off. Mr. Greubelstein’s testimony on that point I am uncertain as to, and the jury must find what it was.</p> <p>On the other hand, the defendant’s witnesses say that the car was much nearer the wagon than that; they say it was within five or six feet of it immediately before the accident happened. You must determine the distance and say what it was. Now the plaintiff being obliged to prove his case under those circumstances, if this be the fact that the car, when he first saw it, was at such a distance from him that by using reasonable diligence, prudence and speed, he could have gotten off the track before the car came upon him, he is guilty of the kind of negligence which deprives him of his action, and that ought to be the law. Two parties together produce an accident; nobody, no court, no jury could tell which did the most of it and which was most guilty. One does it as much as the other. On the other hand, if he used that kind of caution that I have described, and could not get off the track any more quickly than he did, could not avoid the effect of the onward movement of the car, then he is not guilty of contributory negligence, and on that point you will decide in his favor.</p> <p>The next thing will be, was the defendant, under those circumstances, guilty of negligence ? Well, now, gentlemen, the defendant is called upon to use the same kind of caution as the plaintiff is called upon to use. Now recollect all the circumstances ; where the car was behind the wagon, how it was following on, what a reasonable man would be led to think after following a man a block or half ¡ a block as to his not getting off at any particular time; that is, whether having shown that he did not hear the car-driver, or did not attend to the car-driver, if he chose to keep on the track, what reason there would be for a car-driver, under those circumstances, to believe that suddenly, without any notice, he meant to get off the track.</p> <p>Look at that circumstance. Look at the circumstances on the other hand under the rule of law that I have given to you impliedly, that the car-driver was bound to keep such a distance behind the wagon, and to keep his horses and his car under such control that they would not run against the wagon when it did get off. Look, if you can find from the testimony of the case, at what speed the plaintiff was turning off; whether or not if he had continued that speed there would have been a collision. Because one ©f the positions of the defendant is—and one of the witnesses swears to it—and it is more or less a matter of opinion, and you must be yourselves the judges of that—that if this wagon had continued at the rate at which it began to go it would have passed beyond the track, and there would have been no collision.</p> <p>The witnesses for the defendant at the same time say that there was a jerk of the reins which made the horse go more slowly without bringing the wagon to a stop. Look at all those things and say whether or not the defendant, the car-driver, was guilty of negligence in judging as to the probability of this car’s striking the wagon tail, and if you are satisfied from the evidence that the defendant was negligent, you will, having found before that the plaintiff was free from negligence under the circumstances of the case, find a verdict for the plaintiff, and you will then assess Ms damages, which will be a full compensation for the sufferings, as he has given in evidence, from his injuries that have happened, and for all the suffering that will happen during the time that the injuries are likely to continue—you will give him a compensation for the injury to his horse and for the injury to his wagon.</p> <p>On the other hand, if the plaintiff has left the case in such doubt that you are not able to say that the preponderance of evidence is in his favor, why then you must find for the defendant; or, if you find that the plaintiff is guilty in any degree of contributory negligence, you must find for defendant. And again, if you find that the defendant was without fault you must find for him.</p> <p>Defendant’s counsel submitted various requests to charge.</p> <p>Only those which the judge refused will be adverted to. Those refused were numbered 5, 6, 7, 8, 9, 10, 11, and 12. They were :</p> <p>V. “That the plaintiff, under the circumstances, was bound to exercise care and diligence, and keep a lookout for a car approaching from the rear.”</p> <p>I refuse to charge this.</p> <p>To the refusal of the court to charge said request, defendant, by its counsel, then and there duly excepted.</p> <p>But I do charge he was bound to exercise care and diligence, and he was bound to pay such attention as his other duties in front of him would permit, but the approach of a car in the rear he was not specifically called upon to look out for ; that is, to turn around, but he must give some attention to that. That, in going along any railroad street, is as important as anything else ; he knows that the cars come along, and they have, as I have explained, a right to pass him, —that is, a right to demand that he should get out of the way.</p> <p>X. “If the plaintiff saw the approaching car in time to get off the track and did not do so, then he he was guilty of negligence and cannot recover.”</p> <p>I prefer to refuse that, because I will modify it. If he saw it, and then under all the circumstances of the case, by using ordinary skill in the management of his horse, the same kind of skill that the driver of the car was called upon to use with his horse, and under the circumstances of the case, if he could have got off, why, then he was bound to do it; and if his not getting off led to the accident, then he cannot recover.</p> <p>To the refusal of the court to charge said te'nth request, and to the charge of the court in respect thereto, and modifying the same, defendant, by its counsel, then and there duly excepted.</p> <p>XI. “ It is undisputed that the plaintiff drove upon 'the track of the defendant for upwards of two blocks, and it was his duty, under the circumstances, to have kept a lookout behind him for an approaching car, and if he did not do so, then he was guilty of negligence and he cannot recover.”</p> <p>I refuse to charge you, gentlemen, in those terms.</p> <p>To which refusal of the court to charge said eleventh request, defendants, by its counsel, then and there duly excepted.</p> <p>I say I think the great weight of the evidence in this case is, that he was before the car from a point between Fifteenth street and Sixteenth street, to the point between Seventeenth and Eighteenth streets, where the accident happened. That is a question, however, for you, although that is my opinion; and then, instead of being his duty to keep a lookout, I hold that he was called upon to attend to it in the way I have several times described to you.</p> <p>A Juror: I would like to ask a question. My mind is far from being clear upon this point; suppose this plaintiff had stood on the track in front of that car, and they knew that he knew that he stood there, and they had come np and hit him as they did.</p> <p>The Court : How, gentlemen, there is a disadvantage in taking supposititious cases; but if it is any illustration, let me say, that if, under those circumstance, the car coming up behind should run into the wagon, it would be guilty of negligence, which, so far as that is concerned, would give the man a right of action, but the man would lose his right of action for standing on the track, as being guilty of contributory negligence; in such a case as this they would be guilty of negligence, and the party injured could not recover from the other.</p> <p>The defendant also requested the court to charge as follows :</p> <p>VI. “Upon the evidence in this case it is undisputed that the plaintiff was unnecessarily upon the' track of defendant at the time of the collision, there being nothing to prevent his driving upon one side of the track.”</p> <p>The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.</p> <p>The defendant also requested the court to charge as follows :</p> <p>VII. ‘£ That this is a fact to be borne in mind by the jury in determining whether the plaintiff was free from negligence.”</p> <p>The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.</p> <p>The defendant also requested the court to charge as follows:</p> <p>VIII. “ From the fact of the plaintiff’s having driven his wagon on the railroad track, in front of the car, and continuing thereon without any apparent necessity, he was bound to use greater care and diligence, and keep a better lookout, than he would have been if he had not been on the track, that he might avoid the collision.”</p> <p>The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.</p> <p>The defendant also requested the court to charge as follows:</p> <p>IX. “ The defendant was entitled to the unrestricted use of its rails, for the progress of its cars, and the plaintiff, being unnecessarily on the track, was bound to exercise care, to see that an approaching car was not impeded, and if by reason of the plaintiff’s being there, the collision ensued, the plaintiff cannot recover even though the conductor and driver of the car were negligent.”</p> <p>The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.</p> <p>The defendant also requested the court to charge as follows :</p> <p>XII. “ The verdict should be for the defendant.”</p> <p>The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.</p> <p>The jury thereupon retired, and afterward returned a verdict for $5,000.</p> <p>Defendant’s counsel moved for a pew trial upon the minutes, which was denied, and an order was entered to that effect.</p> <p>Judgment was thereafter entered on the verdict; from which, as well as the order denying the motion for a new trial, the present appeal was taken.</p> <p>—I. The court below should have granted the motion for the dismissal of the complaint, or have directed a verdict for the defendant. Failing-in this, it should have granted the motion for a new trial, which was denied. We desire to call the attention of the court to the fact that plaintiff now admits his hearing the shout of the driver, which introduces a new element'in the case, and also to the overwhelming preponderance of evidence that the plaintiff jerked his horse as he turned from the track and by his unskillfulness produced, or at least, contributed to the accident. All that the majority of the commission of appeals decided upon the facts before them was that there was some evidence to go before the jury as to whether the plaintiff’s negligence contributed to the injury. The duty of the court still remained, after submitting the case to the jury, to set aside their verdict when it was clearly against the weight of evidence (Hollacher v. O’Brien, 5 Hun, 277; Adsit v. Wilson, 7 How. Pr. 64 ; Heritage v. Hall, 33 Barb. 275 ; Cothran v. Collins, 29 How. Pr. 155). If the court shall be of the opinion that, under the decision of the commission of appeals, the case was one to go to the jury, we ask its attention to the errors in the manner of submitting it.</p> <p>II. The court erred in refusing to charge the sixth, seventh, eighth, ninth, tenth, and eleventh, requests of defendants. We submit that the charge did not cover the ground fully and fairly and the exception and the refusal to charge as requested cover the whole ground. First. The court erred in refusing to charge the fifth request (Baker v. Savage, 45 N. Y. 191; Ernst v. Hudson River R. R. Co., 24 How. 97 ; Nicholson v. Erie R. R. Co., 41 N. Y. 542 ; Baxter v. Troy and Boston Co., Id. 502 ; Hart v. Central Co. of N. J., 42 Id. 472 ; Griffen v. N.Y. C. R. R. Co., 40 Id. 34; Wilcox v. Rome, &c. R. R. Co., 39 Id. 358; Wild v. Hudson River R. R. Co., 29 Id. 315 ; Bunn v. Delaware, &c. R. R. Co., 6 Hun, 303; Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470 ; Meyer v. Clark, 45 Id. 285, 289). Third. The refusal to charge * the eighth request was error (Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314 ; Barker v. Savage, 45 N. Y. 191, 194; Suydam v. Grand St., &c. R. R. Co., 41 Barb. 377; Whittaker v. Eighth Ave. R. R. Co., 51 N. Y. 295, 299. See also Hegan v. Eighth Ave. R. R. Co., 15 Id. 382; Belton v. Baxter, 14 Abb. Pr. [N. S.] 404). The rule applicable to a person driving on the wrong side of the road is closely analogous. Although a person is not bound to confine himself to his proper side of the road, yet if he does not, he is bound to use a greater degree of caution than if he kept the proper side (Pluckwell v. Wilson, 5 C. & P. 375 ; 24 E. C. L. R.; Simonson v. Steltenerft, 1 Edmonds, 194). Fourth. The court also erred in refusing to charge the ninth request of the defendant. The request was in accordance with the rule laid down in Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380, 383; and Willbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314. Fifth. The court also erred in refusing to charge the defendant’s tenth request (Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470; Meyer v. Clark, 45 Id. 285, 289).</p> <p>III. The court below, as we have shown, did not submit the question of contributory negligence to the jury in such a manner as to impress upon them properly the rule of law and the bearing of the facts in the case upon it. The jury overlooked, or entirely disregarded other parts of the charge, so that their verdict was against the charge as actually given. What is the duty of an appellate court upon such a state of facts has been very clearly laid down (Sheldon v. Hudson R. R. R. Co., 29 Barb. 226, 229; Haring v. New York & Erie R. R. Co., 13 Id. 380; Suydam v. Grand St., &c. R. R. Co., 41 Id. 380; Macy v. Wheeler, 30 N. Y. 231, 237).</p> <p>—I. The plaintiff had the right to be upon the track where he was, and to drive his wagon upon or across it, and it was as much the duty of the defendant to keep its car off the plaintiff’s wagon, as it was that of the plaintiff to escape being run over (Opinion of Earl, C.; Hegan v. Eighth Avenue R. R. Co., 15 N. Y. 380).</p> <p>II. It being plaintiff’s duty to turn his horse and wagon off the track when he saw or heard the car approaching, he had a right so to do, and to sufficient time for that purpose ; and it was the duty of the driver of the car to give him a reasonable opportunity to do so (opinion of Earl, C.); and in turning off the track the plaintiff was chargeable only with the exercise of that care, which, under similar circumstances, would be exercised by ordinary men ; quoted with approval by Lott, C., in Eaton v. Erie R, Co. (51 N. Y. 551): “If plaintiff uses ordinary care he cannot be deemed to have contributed to the negligence ” (Centee v. Furney, 17 Barb. 94, 97, and cases cited; Eakin v. Brown, 1 E. D. Smith, 36).</p> <p>III. None of the exceptions taken by the defendant’s counsel to the refusal of the learned judge to charge specifically as requested, were well taken. In considering these exceptions, we ask the court to examine the whole charge in connection with the several requests; keeping in view the following rule as laid down by the court of appeals in Sperry v. Miller, 16 N. Y. 413. “In considering whether a single proposition contained in a charge is erroneous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the context, is erroneous, yet a new trial is not to be granted for that cause, when it appears that the jury could not have been misled thereby.”</p> <p>IV. It was not error for the judge to refuse to charge the ninth request in the phraseology asked, and the exception to the refusal is not well taken. This request embraces three distinct propositions, and if either of them is not correct, it was not the duty of the court to charge as requested. The rule is stated in Carpenter v. Stillwell (11 N. Y. [1 Kern.] 79), as follows: “ That a request must be in such form that the judge may properly charge in the terms of the request without qualification” (Haggart v. Morgan, 5 N. Y. 422; Hunt v. Mayber, 7 Id. 266). 1st. We deny “That the defendant was entitled to the unrestricted use of its rails for the progress of its cars” (Baxter v. Second Avenue R. R., 3 Rob. 511 ; Hegan v. Eighth Avenue R. R., 15 N. Y. 380. See opinion of Monell, J., in the case at bar, 33 N. Y. Super. Ct. 188, overruling the dictum in William v. Eighth Ave. R. R. Co., 3 Bos. 320 ; Fettretch v. Dickinson, 22 How. Pr. 248). 2nd. We have shown that the plaintiff was not unnecessarily on the track.” 3rd. We deny the correctness of the proposition, that “if by reason of plaintiff’s being there the collision occurred, the plaintiff cannot recover, even though the conductor and driver of the car were negligent.” Surely a car-driver cannot with impunity, negligently drive over and injure a person, although such person may be for the moment unnecessarily on the track (Kenyon v. N. Y. C. & H. R. R. Co., 5 Hun, 479, and cases there cited ; Green v. Erie R. R. Co., 11 Hun, 333).</p>

Appeal by plaintiff from judgment dismissing the complaint. On October 1,1867, plaintiff deposited with defendant $485 ; and on the same day she and her husband deposited with defendant in their joint names, the further sum of $485. Plaintiff and her husband had for many years prior to this resided, and carried on business, at Paradara, on the Island of Cuba; and these deposits were made while they were on a temporary visit to this country.

81, entered upon a verdict in the plaintiffs’ favor by direction of the court. —I. The respondents will probably contend that because they gave credit for the amount of this note upon an antecedent indebtedness, that that was sufficient consideration.

<p>Appeal by the defendant from a judgment for $2,689.73, entered upon a verdict in plaintiff’s favor, and also from an order denying a motion for a new trial, and also from an order denying a motion to set aside the verdict of the jury.</p> <p>—I. The first exception, the benefit of which is claimed by appellant, is to the admission of the article published in No. 15 of The Dramatic News. (1.) The articles in suit, if untrue, were libelous per se, and in contemplation of law malicious ; and as no proof to negative the legal presumption of malice would have been allowed, so none should have been taken to prove malice, except such as would have been also admissible in aggravation of damages. Malice, as a part of the cause of action, being already conclusively presumed (See Townshend on Slander and Libel, 3rd Edition, § 176 ; Id. 132, note 1; Daly v. Byrne, 1 Abb. N. C. 15, and note), the only effect of the proof excepted to was to enhance damages, and all the authorities are agreed that no subsequent publication can be used for this purpose (See Burson v. Edwards, 1 Carter [Ind.] 164; Forbes v. Myers, 8 Blackf. [Ind.] 74; Mix v. Woodward, 12 Conn. 292-3). (2.) The article admitted to prove malice, is itself libelous per se (See Townshend on S. & L. 3rd Ed. § 176), and to admit it in this action, is to render defendant liable to double punishment, as the same article may be made the basis of another action (Mix v. Woodward, 12 Conn. 292-3; Frazier v. McCloskey, 60 N. Y. 337; Root v. Lowndes, 6 Hill, 518; Titus v. Sumner, 44 N. Y. 266 ; Runkle v. Butler, 7 Barb. 260). (3.) If this article was considered by the jury in aggravation of damages, still it would not bar a suit upon the article itself as a substantive cause of action (Campbell v. Butts, 3 N. Y. 173).</p> <p>II. The next exceptions are to the admission of articles published in Nos. 18 and 35 of The Dramatic News, respectively. (1.) The observations in Point I. also apply to these exceptions. (3.) These articles appear on their face to have been published after the commencement of the action, and on that ground alone were inadmissible (Frazier v. McCloskey, 60 N. Y. 337).</p> <p>III. A witness was asked respecting the similarity of “Pique” to “Her Lord and Master.” The questions were objected to and excluded, and defendant excepted. Prior to the offer of this proof, plaintiff had put in evidence, under defendant’s objection and exception, and in proof of malice, an article published by defendant, charging this similarity. The questions were material, if this article was properly admitted, to prove the truth of the latter. We concede that this would be trying a collateral issue, but claim that the error was in opening .the door (See Point II.). As. the issue was raised by plaintiff, we had the right to meet it. It is the province of this court to determine which ruling was erroneous ; both cannot be correct.</p> <p>IV. The plaintiff introduced in evidence (objection and exception taken), an article from. the New York World, purporting to be a letter from “Eleanor Kirke, the reputed authoress of “Flirtation.” The letter, even if genuine, was immaterial; and if material, it was not proved to have been written by Mrs. Kirke ; and if it had been proved, it was incompetent testimony. The ground taken by the justice, that it formed a part of a letter to the defendant from plaintiff’s attorneys, is insufficient. No such letter appears in evidence, and if offered, might itself have been made the subject of objection.</p> <p>The fact, which we concede, that Mrs. Kirke’s letter in the “ World,” was referred to in a letter from plaintiff to defendant, which defendant published as a part of the libelous article (the second cause of action), has no effect. That article (the letter from plaintiff’s attorneys was a part of it) cannot be enlarged by extraneous matter, even though referred to in the article, except for purposes of explanation. No explanation was -necessary.</p> <p>Y. The defendant excepted to the refusal to admit in evidence in mitigation of damages, and in explanation of an exhibit of plaintiff, an article published in No. 24 of The Dramatic News. For the purposes of this argument, it is not claimed that this article could have been properly admitted if the plaintiff had not previously introduced in evidence an article from No. 25 of The Dramatic News. The article offered by defendant and excluded by the court, was published prior to plaintiff’s exhibit, and explains it. The two should have gone to the jury together.</p> <p>YI. In sustaining the objection referred to in Point Y., the judge said, in the hearing of the jury: “I could not admit that article in evidence. The idea that a man can one day blackmail another man in that way, and another day turn round and make another statement, will never do.” This remark may be considered in two aspects—(1) as in the nature of a charge to the jury ; and, (2) as improper influence exerted upon the jury during the trial of a cause. (1) If we consider the expression objected to as in the nature of a charge to the jury, it was erroneous (Vedder v. Fellows, 20 N. Y. 126; Burke v. Maxwell, 16 Albany L. J. 209). (2) If we consider the expression as an improper influence exerted on the jury in favor of a party pending a trial, we shall find the only questions to be: Whether any influence was exerted; whether it was improper; and, whethe. it was in favor of a party to the cause. Under the authorities this expression calls for a new trial (Thurman v. Chapman, 45 Barb. 98 ; Green v. Selfair, 11 How. Pr. 260 ; Cilley v. Bartlett, 19 N. H. 324 State v. Hascall, 6 Id. 352; Perkins v. Knight, Id. 474 ; Coster v. Merest, 3 Broderip & Bingham,, 272; Knight v. Inhabitants of Freeport, 13 Mass. 318). The case of Caldwell v. N. Y. Steamboat Co. (47 N. Y. 398), is not in conflict. In that case the jury had returned for instructions, when the circuit judge remarked that he thought there was not much difficulty in arriving at a conclusion. As the circuit judge had expressed no opinion on the merits, and given no intimation of what his opinion was, the court of appeals affirmed the judgment. The remark did not tend to prejudice either party against the other. This is the reason the appellate court did not interfere, and this is the only difference between the cited case and the case at the bar.</p> <p>VII. When the defendant had rested (having examined two witnesses upon the bad character of plaintiff), counsel for plaintiff stated that he had sent for witnesses on the question of plaintiff’s character, to which the court replied, in the hearing of the jury: “So far as regards the last witness, on the subject of character, you need not give yourself any • trouble about it.” To this remark, exception was taken. Here, again, the court erroneously invaded the province of the jury. It would have been proper to explain to the jury the principles which should guide them in weighing the testimony of a witness ; but it was for the jury alone to determine what weight to give to the testimony. The court had no right to say to the jury, or in their hearing of a witness whose testimony was pertinent to the issue, as the testimony of the witness referred to was, that they should not consider it,—and such was the clear import of the objectionable language (See authorities cited in Point VI.). It cannot be argued, to bring the case within some authorities, that this was a mere expression of opinion qualified by the judge in Ms charge when he explicitly left the question to the jury. He did leave to the jury, the question whether the defendant had proved bad character ; but he did not leave it to them to determine the credibility of this particular witness and the weight of his testimony. Taking the expression excepted to, together with the charge proper, the matter was left to the jury, in substance as follows ; You are to pay no attention whatever to the testimony of the witness Hallam, but may consider whether, upon the testimony of Brown, the other witness on character, the defendant has proved the plaintiff to be a man of bad character.</p> <p>—I. The subsequent publications were properly received. The evidence offered was of the same character in each case, and offered for the same purpose, and the objections and exceptions were, except the first, in the same words, (a) The objections and exceptions state no ground. “ The rule is settled beyond discussion that a general objection will be disregarded” (Valton v. National Fund Life Assurance Co., 20 N. Y. 35 ; Shaw v. Smith, 3 Keyes, 316 ; McDonald v. North, 47 Barb. 532 ; Requa v. Holmes, 16 N. Y. 201; Chester v. Dickerson, 54 Id. 13 ; Levin v. Russell, 42 Id. 255; Somerville v. Crook, 9 Hun, 668 ; Frazier v. McCloskey, 60 N. Y. 339). (b) The evidence was properly received as proof of malice and in aggravation of damages. The rule is in England well settled that other publications by the defendants are admissible to show actual malice (Folkard on Libel and Slander, 459 ; Barnett v. Levy, 3 H. L. 395, 414; Barnwell v. Adkins, 1 M. & Gr. 807). And this although such publications are subsequent to the bringing of the action (Pearson v. Le Martin, 1 Scott N. C. 607. See also Macleod v. Wakley, 3 C. & P. 311; Folkard on Libel and Slander, 460; Camfield v. Bird, 3 Car. & Kin. 56; Chambers v. Robinson, Str. 691). Exactly in point is Chubb v. Westly (6 C. & P. 436). There is in this State some apparent conflict of decision (Bissell v. Elmore, 48 N. Y. 564; Thorn v. Knapp, 42 Id. 478). This case is distinguishable from Frazier v. McCloskey (60 N. Y. 337). In that case the charge made by defendant to the admission of which exception was taken was actionable per se. In the case at bar the articles complained of, or at least parts of each of them, would not have sustained an action, since they were within the bounds of legitimate criticism, while they showed, nevertheless, hostility and malice toward the plaintiff (See also Thomas v. Croswell, 7 Johns. 269 ; Defries v. Davis, 7 Car. & Payne, 112). (c) The learned judge in his'charge directed the jury on this point properly and as requested by the defendant, thereby preventing the evidence admitted from having any improper effect.</p> <p>II. The questions as to the resemblance between the play “ Pique” and the novel “Her Lord and Master” were properly overruled. The three objections were properly sustained, (a) Ho authority exists for permitting a witness to state the resemblance between two writings, neither of which is in evidence, though both are within the reach of subpoena. The questions called for statements of the contents of writings not produced, and worse still, for the conclusion of the witness in regard to them. The rule heretofore followed in similar cases, is to cause the writings to be read in court (Reade v. Sweetzer, 6 Abb. Pr. N. S. 9 ; Toole v. Young, Corylon on Stage Right, 84 ; Strauss v. Francis, 4 Fost. & F. 939, 1107). The rule allowing witnesses to compare absent objects has always been based by the courts on necessity (Hotchkiss v. Germania Ins. Co., 5 Hun, 90; De Witt v. Barly, 17 N. Y. 342; Com. v. Sturtevant, 117 Mass. 122). Ho such necessity exists here. (5) The witness was not competent to give the testimony asked for. He had never read “ Pique,” and had seen it acted only once, a year and four months before the trial. It did not appear when he had read “Her Lord and Master.” Hence no foundation had been laid for his testimony, (c) The evidence sought was wholly immaterial (Townshend on Libel, 3rd Ed. 679 ; Fitzgerald v. Stewart, 53 Penn. 343; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuser, 11 Johns. 38; Lamos v. Snell, 6 N. H. 413; Daly v. Munro, Sup. Ct. Sp. T 1876; Reade v. Conquest, 11 C. B. (N, S.) 479 ; Boucicault v. Fox, 5 Blatchf. 87). It was inadmissible in mitigation of damages (Dolevin v. Wilder, 34 How. Pr. 488). Nor could the evidence be offered to show the bad character of the plaintiff (Townshend on Slander and Libel, 3rd Ed. 679, § 407; Inman v. Foster, 8 Wend. 602; Kennedy v. Gifford, 19 Id. 296 ; Mapes v. Weeks, 4 Id. 659 ; Watson v. Bush, 5 Cow. 499 ; Fitzgerald v. Stewart, 53 Penn. 343 ; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuzer, 11 Johns. 38; 1 Greenl. on Evidence, § 55 ; Lamos v. Snell, 6 N. H. 413). id) Bor was the evidence material to prove statements in the articles from defendant’s paper not sued on. If the evidence had been offered for this purpose, counsel should have so stated on the trial, and cannot now take advantage of this ground (Cases cited, infra).</p> <p>III. The letter from the World was properly received. It had been read by the defendant, and had been referred to in the letter of plaintiff’s attorneys written after the first, and printed in the second libelous article (supra).</p> <p>IV. The article offered by defendant was properly excluded (Townshend on Slander and Libel, 3rd Ed. 687, and cases cited; Hotchkiss v. Olyphant, 2 Hill, 510).</p> <p>Y. The remarks of the court were not subjects of exception. They were proper, and the charge prevented any possible injury from them.</p> <p>VI. The damages were not excessive (Fry v. Bennett, 9 Abb. Pr. 45 ; Coleman v. Southwick, 9 Johns. 45 ; Southwick v. Stevens, 10 Id. 443 ; Knight v. Wilcox, 18 Barb. 212).</p>

<p>I. Corporations.</p> <p>1. Manufacturing, organized under chap. 40, Laws of 1848.</p> <p>{a) Stockholders ; liability of for debts of under section 24.</p> <p>1. Not liable (among other events) unless suit for the collection of the debt shall be brought against the company within one year after it shall become due.</p> <p>(d) Promissory note made and given by corporation</p> <p>TO ITS CREDITOR FOR A DEBT OWING HIM; EFFECT qF ON RIGHT AND LIABILITY OF STOCKHOLDER.</p> <p>1. So long as the debt for which the note was given remains unextinguished, the liability of the stockholders is in respect thereof only; consequently, to hold stockholders, suit must be brought against the company within one year after that debt became due.</p> <p>1. Extinguishment ; what does not operate</p> <p>AS WITHIN THE PURVIEW OF THE STATUTE.</p> <p>(a) Corporation’s own promissory note in hands of its creditor does not.</p> <p>This although</p> <p>the creditor may have procured the note to be discounted and had taken it up on its protest.</p> <p>(b) Judgment. One obtained upon the debt, or one obtained by the creditor upon the corporation’s own note given him for the debt, does not.</p>

<p>I. Maxim.</p> <p>1. Damnum absque injuria.</p> <p>(a) Injuries necessarily resulting from doing an author- ' IZED ACT, FALL WITHIN THE MAXIM.</p> <p>1. "W gave B a license to open apertures through the floors and ceilings of his (W’s) store. W’s goods were damaged by the dust and debris arising from the opening of the apertures. There was a conflict of testimony as to whether there were injuries to the goods other than such as would necessarily result from the licensed acts of B.</p> <p> Held </p> <p>1. That B was not liable for such damages as necessarily resulted from the doing of the licensed act.</p> <p>2. That B was liable for such damages as did not so result.</p> <p>AND AS A RESULT HELD,</p> <p>3. That a charge “ that if B had a license, and went into the premises by permission of W, but was guilty of depreciating the value of W’s goods, he is still liable for the whole damage he has done,” was erroneous,</p> <p>n. Implication from express authority.</p> <p>1. An express authority carries with it by implication an authority to do such damage and injury as necessarily results from the performance of the act authorized in express terms.</p> <p>III. Trial, conduct of.—Appeal.</p> <p>1. Charge to disregard all that counsel has said of irrelevant matter.</p> <p>(a) Case ; what necessary to contain to present an exception THERETO FOR REVIEW.</p> <p>1. Should either show that the party claiming to be aggrieved called the attention of the court specifically to the irrelevant matters that had been spoken of by counsel, or should contain the alleged irrelevant matter.</p>

<p>I. Party to action.</p> <p>1. Examination of against parties claiming under a deceased person, under section 399 of the Code of Procedure.</p> <p>1. Question not allowed.</p> <p>(a) About the time you were introduced to Mr. Garner (the deceased), did you commence any action for- him ? This is inadmissible as calling for evidence of employment of the witness by the deceased.</p> <p>IT. Evidence.</p> <p>1. Experts, opinion of as to value of services.</p> <p>(a) Cannot be based on what.</p> <p>1. Not on the testimony of a witness or witnesses as to what services were rendered.</p> <p>(5) May be based on what.</p> <p>1. On facts stated by witnesses, and claimed by counsel to have been proved by their testimony.</p> <p>(a) Questions to expert, what may be put.</p> <p>1. Hypothetical ones based on such facts may be put.</p>

Appeal by defendant from a judgment rendered at special term, June 22, 1877, after a trial of issues of fact by the court without a jury. Held: held that the thirty-sixth section of the Rapid Transit Act was unconstitutional and void; that the defendant had no authority, in law, to construct its proposed railroad, either by virtue of its charter or the provisions of that act; and, accordingly, that the plaintiff .was entitled to a perpetual injunction restraining defendant…

Appeal by defendant from a judgment entered in favor of plaintiff upon the verdict of a jury.

This is an appeal by defendant from a judgment in favor of plaintiff for $937 81, entered upon a verdict, and from an order denying a motion for a new trial on the minutes. The action was for the conversion of certain billiard tables and implements.

<p>EVIDENCE. —NOTICE OF PROTEST, SERVICE OF.</p> <p>The original entries in the protest-book of a notary, who is dead, are proper evidence to show demand and notice of non-payment, and such entries should be admitted by the court (3 B. B. 5tli Ed. 474, § 36).</p> <p>When the word “mailed” appears in a memorandum in the official register of a deceased notary, it is consistent with reason and the meaning of the term, to presume that it describes what that act in its ordinary performance calls for, i. e., placing a letter in the post-office, with postage prepaid, to be delivered under public authority.</p>

<p>Appeal of Thomas J. Barr, receiver, from an order respecting proceeds of property that came into his possession as receiver and were deposited in the Bowling Green Savings Bank, of which Sheppard F. Knapp, Esq.., is receiver.</p> <p>—I. The court had no power to grant the order of injunction appealed from on the application as made by the respondent. (a.) An order of injunction can only be granted by the court when it appears “from the complaint” that the plaintiff is entitled to a judgment against the defendant, restraining the commission or continuance of which, “during the pending of the action,” etc. (Code of Civ. Pro. § 603). (b.) The respondent presented no complaint, and therefore the granting of the injunction was without authority. Nor was there any action pending, as judgment of discontinuance of this action had been entered long prior to the granting of the same. The order could only be granted “before final judgment” (Code, § 608). (c.) Even a defendant to obtain an injunction order must serve a complaint in the nature of a cross suit (Thursby v. Mills, 1 Code R. 83).</p> <p>)II. The order appealed from tends to enjoin thpa'appellant from exercising the duties of his office as receiver. Such an injunction cannot be granted (People v. Sampson, 25 Barb. 254).</p> <p>III. The order appealed from incapacitates the appellant from complying with the order of April 16, directing payment of the money in question, or purging himself of contempt under the order of August 7,1877. (a.) The order'enjoins the appellant from collecting or receiving moneys deposited by him as receiver in the Bowling Green Savings Bank. How can he then pa> the fine imposed under the order of August 7, 1877 ? The order in effect enjoins the appellant from doing that which he is directed to do under the order of Mr. Justice Sanford.</p> <p>IY. The respondent is not entitled to both the property and body of the appellant.</p> <p>—I. This receiver is not “a party aggrieved,” by the order of December 3, 1877, and has no right of appeal therefrom. For that cause, his appeal should be dismissed. He is not a party to this action, nor the representative of .a party. He is the mere instrument of the court (Cory v. Long, 43 How. Pr. 492; Martin v. Kanouse, 2 Abb. Pr. 392; Matter of Bristol, 16 Id. 398). and has no right to be heard upon any point embraced in that order (Tallman v. Hinman, 10 How. 89). “ It is too clear for doubt, that a receiver has no right to inter-meddle in questions affecting . . . the disposition of the property in his hands, or to any extent to be regarded as the representative of any one or more of the parties to the cause” (Matter of Colvin, 3 Md. Ch. Dec. 300, 302, 303).</p> <p>II. The respondent’s lien upon this reserved property and its proceeds—his right to payment therefrom by this receiver, and his contempt of the court in refusing to make such payment, have been adjudged. A sequestration of the reserved property and its proceeds, for which the receiver is accountable, follows of course (People v. Rogers, 2 Paige, 103). The order of August 7, directing his commitment,—which has not been enforced,—constitutes no objection to the order of December 3 (Mumford v. Stoker, 1 Cow. 178; Ontario Bank v. Hallett, 8 Id. 192). Until the respondent shall have obtained satisfaction of his claim, he may pursue every remedy which the law has provided in his behalf.</p>

Appeal by the plaintiff from a judgment rendered in favor of the defendants, upon a trial by the court, dismissing the complaint. The action was to recover moneys paid by the plaintiff to the defendants, to discharge an assessment upon premises, of which the plaintiff was tenant, and which the plaintiff claimed by the terms of his lease he was required to pay. The defendants set up by answer, that the assessment was paid voluntarily on May 10, 1873.

The action is upon a policy of insurance issued by the defendant, bearing date August 10, 1867, whereby it insured the life of Edwin W. Mitchell, in the sum of $5,000, for his own benefit, upon certain terms and conditions which were therein specified. The policy was assigned to the plaintiff December 9, 1867.

The complaint was, “that heretofore, to wit, on February 23 and 27, and March 19, 1877, at the city of New York, these plaintiffs, who were and now are-co-partners doing business under the name and style of Bobbins, Bodington & Company, did authorize and empower the defendant as their confidential agent to sell for them in the city of New York, foreign bills of exchange, and that on the dates aforesaid the defendant did sell in the city of New York, for and on account of the…

<p>DISCONTINUANCE OE ACTION. —EJECTMENT.</p> <p>The plaintiff’s right to discontinue on payment of costs terminates when the action passes into judgment, for the defendant can then claim a right to the adjudication even if the same was wholly or partially unfavorable to him, and his right does not depend upon the judgment having been actually entered of record. It was enough that a point had been reached which made the action ready for judgment.</p> <p>Leave to discontinue was never granted after a peremptory rule for judgment or demurrer.</p> <p>After a special verdict, the plaintiff might discontinue by leave, as a matter of great favor, because the special verdict was not complete and final.</p> <p>Leave to discontinue after a general verdict was never granted (2 Williams Saunders, 73).</p> <p>In the case at bar, an action of ejectment, the judgment was entered, and execution issued, and plaintiff put in possession of the premises by the sheriff. Subsequently it was vacated, and another defendant added, but the plaintiff was allowed to keep possession of the premises under the execution until a judgment should be rendered in defendants’ favor, and after answer of defendants denying plaintiff’s right to possession of the premises, and claiming ownership in fee in the same, the plaintiff claims the right to discontinue on payment of costs without a restoration of the possession of the property.</p> <p>Manifestly the plaintiff has no right in this condition of things to discontinue the action to enable him to bring a new action, or to compel the defendants to bring an action to recover the possession of the property now in the plaintiff under the judgment.</p>

This action is brought against the sheriff to recover the value of twenty hogsheads of molasses, seized by him about June 6, 1867, under an attachment issued on June 6, 1867, against the property of Thomas R. Gordon, in favor of Charles S. Archer, Washington Archer, and Pitt T. Tucker. Plaintiffs had a verdict. A motion for a new trial was denied. Judgment was thereupon entered on the verdict.

This is an action brought by the plaintiff, as •■assignee of Joseph Kittell and Alexander Klingenberg, judgment creditors of one Charles L. Lazarus ■(whom the… Held: that the common law jurisdiction of the State courts, in matters growing out of bankruptcy proceedings, is not abrogated or divested, except where the jurisdiction of the United States court is expressly made exclusive by the act (Claflin v. Houseman, 93 U. S. 130. See also Cook v. Whipple, 55 N. Y. 150). VII.

The complaint set forth that James Egan died seized of certain real estate described, consisting of three houses and lots, leaving him surviving, the plaintiff, his widow, and two sisters, Catharine A. Walsh, and Julia Egan, his only heirs-at-law, and next of kin ; that Julia Egan, on March 31, 1868, conveyed all her interest in said real estate to Catharine A. Walsh, who on January 20,1872, died intestate, leaving her surviving, as her only heirs at law, the defendants in…

<p>The substance of the complaint in this action is; that plaintiffs deposited with Henry Clews & Co. certain securities in trust and for the purpose of securing said Henry Clews & Co., in the event of plaintiffs failing to remit to the firm of Clews, Habicht & Co., of London, the requisite funds to pay certain bills of exchange to the extent of £6,000, which Henry Clews & Co. authorized the plaintiffs to draw on Clews, Habicht & Co., of London, to provide for which Henry Clews & Co., at plaintiffs’ request, opened a credit with the banking-house of Clews, Habicht & Co., of London, for £6,000 ; that plaintiffs took up and paid, or furnished Henry Clews & Co. with the funds wherewith to pay, all the bills of exchange drawn by them on Clews, Habicht & Co., of London, and demanded of Clews & Co., the said securities, which demand was complied with except as to certain bonds, the subject of this action ; that defendants, Henry Clews and Theodore S. Fowler, ° composing the firm of Henry Clews & Co., fraudulently hypothecated with the defendants, composing the firm of Fred Butterfield & Co., the said bonds for money theretofore loaned and advanced by said Fred Butterfield & Co., and said bonds are still in the possession of said Fred. Butterfield & Co. ; that Henry Clews & Co. borrowed from Fred. Butterfield & Co. about half a million of dollars, and hypothecated with them, as security therefor, property of the value of about a million of dollars ; that if said Butterfield & Co. either bought said bonds or advanced any money thereon in good faith, and without notice of their belonging to plaintiffs, yet they have sufficient other property in their hands from which they will realize enough to pay their own claims and demands against Henry Clews & Co., without having recourse to said bonds ; that Frederick S. Taylor, as assignee of Henry Clews and Theodore S. Fowler, claim some interest in said bonds. The prayer of the complaint was as follows:</p> <p>“ 1st. That the defendants, Henry Clews & Co. and Fred. Butterfield & Co., deliver to these plaintiffs the said twenty-nine first mortgage bonds of $1,000 each, of the Toledo, Peoria and Warsaw Railroad Company, Eastern Division, with the interest received thereon, together with all damages sustained by these plaintiffs for the conversion thereof.</p> <p>‘ ‘ %nd. That if the said defendants, Fred. Butter-field & Co., shall have advanced any moneys on said bonds in good faith and without notice, then that said defendant, Fred. Butterfield, be allowed the amount so advanced thereon.</p> <p>“3rd. That if the said defendants, Fred. Butter-field & Co., shall hold and own said twenty-nine bonds in good faith, then that they account to the plaintiffs for the property and securities held by them and received from said defendants, Henry Clews & Co., and ■ after the said defendants, Fred. Butterfield & Co., shall have been paid therefrom their said claims and demands against said defendants, Henry Clews & Co., that they pay the surplus or so much thereof as shall be necessary to satisfy the plaintiffs’ claims, demands and damages against said defendants, Henry Clews & Co.</p> <p>“ 4ill. That the plaintiffs have judgment against the defendants, Henry Clews & Co., for all damages that said plaintiffs have sustained by reason of the unlawful conversion of said bonds.</p> <p>‘5ill. That an injunction issue, restraining the defendants from parting with or disposing of said twenty-nine bonds; that a receiver be appointed, and that the plaintiffs have such other and further relief as to the court shall deem meet.”</p> <p>The answer of Henry Clews and Theodore S. Fowler, among other things, denied that they fraudulently hypothecated said bonds, and alleged that they were hypothecated for the purpose, among other things, of carrying out the letter of credit, and the arrangements between plaintiffs and themselves.</p> <p>The answer of the other deféndants, among other things, denies the alleged fraudulent hypothecation, denies that Fred. Butterfield & Co. have sufficient property, other than said bonds, in their hands, from which they will realize enough to pay their own claims and demands against said Henry Clews & Co., without having recourse to said bonds, and denies that defendant, Taylor, claims some interest in said bonds. The answer contained no affirmative allegations to the effect that these defendants were bona fide holders for value without notice.</p> <p>The action was tried at special term as an equity suit. The learned judge before whom the cause was tried found as conclusions of law :</p> <p>“ 1st. That said bonds in suit are negotiable instruments, the title to which passes by delivery.</p> <p>“2nd. That the estate of Wm. Butterfield, or his personal representatives, are the holders, in good faith, of said bonds in suit, and entitled to retain the same.</p> <p>“3rd. That said Frederick Taylor has no interest in said bonds, either individually or as a member of the firm of Fred. Butterfield & Co., or as assignee of said Henry Clews & Co.</p> <p>“4th. That the defendants, Frederick Butterfield, Frank H. Ini oes, Edward A. Price, Frederick Taylor, and Peter B. Worrall, are entitled to judgment dismissing the complaint as against, them, with costs, and two hundred and fifty dollars allowance.</p> <p>“ 5fh. That as to the defendants, Henry Clews and Theodore S. Fowler, the issues in this action should be tried by jury.”</p> <p>Upon this finding, judgment was entered dismissing the complaint as against Fred. Butterfield, and others, constituting the firm of Fred. Butterfield & Co., and as against Frederick Taylor, as assignee of Henry Clews & Co., but without prejudice to the plaintiffs’ right to a trial by jury of the issues raised by the answer of the defendants constituting the firm of Henry Clews & Co.</p> <p>Plaintiffs appeal from the judgment and each and every part thereof.</p> <p>—I. There was a mis trial. The action was purely of an equitable character, and the court had no authority to dismiss the complaint as to some of the parties, and direct another branch of it as a matter of law to be tried by a jury (1 Story’s Eq. Jur. § 703, and cases cited; Bay v. Coddington, 5 Johns. Ch. 54; Lloyd v. Gordon, 2 Swanst. 180; Patrick v. Harrison, 3 Brown Ch. 476; Jackson v. Butler, 9 Mod. 297; S. C., 3 Atk. 306; Osborne v. U. S. Bank, 9 Wheat. 738; Hamilton v. Cummings, 1 Johns. Ch. 517; Kobbi v. Underhill, 3 Sandf. Ch. 277; Hasbrouck v. Vandervoort, 4 Sandf. 74; State of Illinois v. Delafield, 8 Paige, 527; 2 Story Eq. Jur. § 1032; Eden on Inj. 210; Brinkley v. Brinkley, 56 N. Y. 192; 1 Story’s Eq. Jur. § 71; 2 Id., § 1, 483; Code of Pro. § 387). (1.) The extension of the jurisdiction of courts of law to cases which formerly were subjects of equitable jurisdiction exclusively has not ousted the jurisdiction of courts of equity (White v. Meday, 2 Edw. 486, and cases cited ; Sailly v. Elmore, 2 Paige, 497; Mayne v. Griswold, 3 Sandf. 464; American Ins. Co. v. Fisk, 1 Paige, 90; McLaren v. Pennington, Id. 102). Where equity obtains jurisdiction of a cause for any purpose it will retain it until justice is effected (1 Story Eq. § 74; Id. (11 Ed.) § 64, k; De Bemer v. Drew, 39 How. Pr. 466; Le Roy v. Veeder, 1 John. Ca. 417; Rathbone v. Warren, 10 Johns. 587, 596 ; King v. Baldwin, 17 Id. 384).</p> <p>II. The defendant Fred. Butterfield, and the other defendants, composing that firm, did not allege in their answers that they had received the bonds in question in good faith, without notice and for valuable consideration (1.) Before the Code of Procedure this was requisite (Wallyn v. Lee, 9 Ves. 24, 33, 35 notes; Gallatin v. Cunningham, 8 Cow. 361; Frost v. Beekman, 1 Johns. Ch. 288; Balcolm v. N. Y. Life Ins. Co., 11 Paige, 454-456). (2.) The rule under the code is as of old; in order to admit testimony that a party is a bona fide holder for a valuable consideration, it is necessary that the answer should contain allegations to that effect (Weaver v. Barden, 49 N. Y. 286-9; Field v. The Mayor, 8 Id. 179). Therefore the court erred in allowing the defendants to prove that they were bona fide holders of the plaintiffs’ bonds for value, and the ^exception thereto is well taken.</p> <p>III. Frederick Butterfield carried on and transacted "business under the firm name of ‘ ‘ Fred. Butterfield & Co. of 1866.” This was a fictitious name, and having obtained possession of the plaintiffs’ bonds in violation of the statute of the State of New York he cannot hold them as against the plaintiffs (Laws, 1833, Ch. 281; see 4 General Stat. [Edm. ed.], 449). (1.) This act of the defendant, Fred. Butterfield, was within the plain provisions of the statute prohibiting such a trans.action and upon principle and authority renders it void (Griffith v. Wells, 3 Denio, 226; Swords v. Owen, 2 J. & S. 277; S. C., 43 How. Pr. 176; Pennington v. Townsend, 7 Wend. 276; 1 Story Eq. Jur. 296). (2.) If Frederick Butterfield could not recover the purchase money on a sale of the bonds, can he hold them against the owners when it appears he obtained them by and through the same illegal means ? Is it not a fundamental principle of law that no right can be derived from any contract made in express opposition to the laws where such contract is made % (Duncan v. McLure, 4 Dall. 308; Hall v. Mullin, 5 Har. & J. 693; Clark v. Shee, 1 Cowp. 197; Swords v. Owens, 43 How. Pr. 176; Ramsdell v. Morgan, 16 Wend. 517; Dean v. Howes, Hill & Denio, 37; Keutgen v. Parks, 2 Sandf. 60. See also Dix v. Van Wyck, 2 Hill, 522; Griggs v. Howe, 2 Keyes, 166; Armstrong v. Lewis, 3 M. & K. 45; Woodworth v. Bennett, 43 N. Y. 273; Tregoning v. Jenner, 7 Bing. 97; S. C., 20 E. C. L. R. 60).</p> <p>—I. A consideration of the pleadings deprives of all force the objections to testimony introduced on behalf of the defendant Butterfield, based upon the ground that it was not pleaded in the answer, viz.: the objection to the proof of the honafides of the loan and pledge of securities, and also of Butterfield’s not being himself interested either in the loan as security for which the' bonds in suit were pledged, or in the bonds themselves.. There was no necessity of pleading such matter in behalf of the firm of Fred. Butterfield & Co., and the complaint contained no allegations against Butterfield, except in his capacity as a member of that firm. They made no attempt to amend their complaint so as to notify Butterfield that they would, upon the trial, attempt to fasten upon him an individual liability, nor did they bring in as parties the persons really interested in the bonds. They chose to go to trial upon the complaint in its original form, and, having introduced evidence tending to show an individual liability on the part of Butterfield, attempted to shut out testimony on his behalf, on the ground that his answer did not properly plead matter of defense to a claim of which no mention is made in the complaint. Such testimony was properly admitted over the objection that it was not pleaded, which was the only objection taken.</p> <p>II. The only ground upon which the special term took, or could take, jurisdiction of the present suit, as containing any equitable cause of action, was the claim set up in the complaint that the plaintiffs were entitled to an accounting and a marshaling of the securities held as collateral by Fred. Butterfield & Co., and to the release of the bonds in suit from the lien of their loan, on the ground that they held sufficient other collateral security for its payment without having recourse to these bonds. The evidence shows that the securities held as collateral would not realize sufficient to pay the loans for which they were pledged. This testimony is uncontradicted. Upon the proof of this fact, there disappeared from the case the only element entitling the plaintiffs to the interference of a court of equity.</p> <p>III. The plaintiffs claim that the loan of $690,000 was, on account of the use of the term “Fred. Butterfield & Co. of 1866,” in contravention of the statute of April 29, 1833, prohibiting the use of fictitious names in business. This statute must be construed in connection with chapter 400 of the Laws of 1854 (Session laws of that year, page 1084), and chapter 144 of the Laws of 1863 (Session laws of that year, page 227), which are in pari materia, and which provide that the use of a copartnership name may be continued upon complying with their provisions as to filing a certificate and publishing an advertisement to that effect. The object of these statutes was to prevent persons from obtaining credit on the responsibility of supposed names included in the term “Co.,” but here Fred. Butterfield represented an actual responsible name as to all the world except his partners, and “ Co.” represented two names—William Butterfield and L. A. Jacobus. Fred. Butterfield was a partner liable for all the debts of the firm, and it was only as between himself and the two persons included in the term “Co.” that his liability was limited. The statute in question cannot avail the plaintiffs. For (1.) no case can be found in which a party has been allowed to take advantage of the statute, unless it was specially pleaded (O'Toole v. Garvin, 1 Hun, 92, and cases there cited). (2.) The court will not deprive the personal representatives of William Butterfield of their property by its judgment in an action to which they are not made parties, and have not had an opportunity to be heard. (3.) The transaction was not within either the spirit or the letter of the law, even if it be conceded that the making of the loan was “transacting business” within the meaning of those terms as used in the statute. The law was intended to prevent persons obtaining credit to which they were not entitled. In the present case credit was given to Clews & Co. The term was used in the liquidation of the affairs of a firm which had ceased doing business, and with the addition of the words “ of 1866,” employed simply as an ear-mark to keep the proceeds of the property of that firm entirely separate from other funds. (4.) There is no proof that the provisions of the enabling statute of 1854 have not been complied with. In the absence of such proof, the court will not presume that a party committed a misdemeanor (Hartwell v. Root, 19 Johns. 345; People v. Pease, 27 N. Y. 45; Farmer’s Loan Co. v. Curtis, 3 Seld. 470).</p> <p>IY. Finally, should it be held, not only that the statute applies, and that the plaintiffs can take advantage of it, but also that no subrogation takes place, still the judgment of the court below should be affirmed, as the plaintiff’s remedy at law, by an action of replevin, was perfect against the parties holding the bonds ; and with such a controversy the special term, or, in other words, the equity side of the court, had nothing to do, the defendants being entitled to a trial by jury (People v. Albany R. R. Co., 57 N. Y. 161; Hudson v. Caryl, 44 Id. 553; Bradley v. Aldrich, 40 Id. [1 Handd] 504; Mann v. Fairchild, 2 Keyes, 111; Heyward v. City of Buffalo, 14 N. Y. 534).</p>

The action was brought against Philip Goldman and William Hartman, for a conspiracy, by means of which the plaintiffs were cheated and defrauded out of eight bales of Havana tobacco. The defendant Hartman interposed no defense, and on the trial was plaintiffs’ chief witness.

In July and August, 1876, the plaintiffs were cotton brokers, and one of them a member of the cotton exchange.

Appeal by the plaintiff from an order of reference made October 4, 1874, and also an appeal by the plaintiff from an order made on June 8,1877, confirming the report of the referee.

<p>Appeal by defendants from a judgment directing the reformation of a deed, executed by the defendant Smith and wife to the plaintiff, by striking out a clause by which the plaintiff assumed and agreed to pay three mortgages and interest thereon, being liens on the premises conveyed, ás a part of the consideration or purchase money therefor.</p> <p>The action was tried at the special term, and the court made the following findings of fact and conclusions of law.</p> <p>Findings of Fact.</p> <p>I. That on or about the 14th day of April, 1874, the defendants James H. Smith and John A. Dake, made and executed the written contract specified in the complaint, and a copy of which is annexed thereto.</p> <p>II. That subsequently, and before the time appointed for the execution and delivery of the deeds therein provided, said Dake assigned his interest in that part of said contract which provided for the conveyance of the four lots situate on Seventy-seventh street, mentioned in said contract, to the plaintiff Kilmer, as collateral security toward the payment of an indebtedness then due by said Dake to said Kilmer, and directed the deed of said lots to be made to said plaintiff, and which was assented to by said defendant Smith, and thereupon, in consideration of the premises, the plaintiff duly executed and delivered to the parties, a release and satisfaction of a mortgage, which the plaintiff then held as a security for said Dake’s indebtedness to him, upon the house and lot owned by said Bake, situate in Fifty-seventh street, and the same house and lot which formed a part of the subject matter of the contract before mentioned.</p> <p>III. That neither said Bake, nor the plaintiff Kilmer, ever at any time agreed to assume and pay the three several mortgages upon the four lots in said 77th street, mentioned in said contract, and specified in the complaint, nor either, nor any part of either of them, nor did said Bake, or said plaintiff, ever, at any time, in any way assume the payment of either or of any part of said three several mortgages.</p> <p>IV. That the clause contained in the deed of the said four lots in Seventy-seventh street, made by the defendants, James H. Smith and Annie M. Smith, to the plaintiff, set forth in the complaint herein, and therein particularly complained of, and which is in the words following, viz. : “Which said three several mortgages, together with the interest thereon, the party of the second part hereby expressly assumes and agrees to pay off and discharge the sa-me, forming a part of and having been deducted by the said party of the second part from the consideration or purchase money hereinbefore expressed,” was inserted in the said deed by said defendant Smith, without the knowledge or consent of the said Bake and the plaintiff, or either of them, and the plaintiff took said deed and caused ■the same to be recorded in ignorance of the fact that the said clause, or any clause or words of like import or effect was contained therein, and supposing and understanding that the said deed in that particular (as in all other respects) corresponded to the express terms of the said written contract, and the insertion of said words and clause above recited in said deed was unauthorized by the terms of the said contract and was a fraud upon said plaintiff.</p> <p>Conclusions oe Law.</p> <p>That the plaintiff is entitled to judgment in this action as demanded in the complaint.</p> <p>That the said deed made by the defendants James H. Smith and Annie M. Smith to the plaintiff before mentioned be reformed and corrected by striking out therefrom and canceling the clause contained therein, and which is in the words following, viz. : “ Which said three several mortgages, together with the interest thereon, the party of the second part hereby expressly assumes, and agrees to pay off and discharge the same, forming a part of, and having been deducted by the said party of the second part from the consideration or purchase money hereinbefore expressed,” and the agreement and covenant purporting to be made and created, thereby requiring the plaintiff to pay off the said three several mortgages upon the said four lots in Seventy-seventh street, mentioned in said contract and in said complaint, be adjudged and decreed to be canceled and null and void, and the register of deeds in and for the county of New York be ordered to change and correct the record of said deed on the record thereof in his office, by striking out and erasing and canceling the before-recited clause and words now contained therein.</p> <p>And it appearing that none of the defendants in this action have answered and defended therein except the defendants James H. Smith and Annie M. Smith, the plaintiff is entitled to have judgment against the said defendants, James H. and Annie M. Smith, for his costs of this action.</p>

Appeal by the defendant Abendroth from so much of the interlocutory judgment rendered herein, at a special term of this court, as… Held: and in it the plaintiffs participated ; at said meeting, this defendant was duly chosen the assignee in bankruptcy of said firm, and thereafter, he duly qualified as such, and entered upon and discharged the duties of his said office ; all of which was done by and with the assent of the plaintiffs, who were then and there the lawful…

This is an action brought by John H. Cheever against the Gilbert Elevated Bailway Company, to recover the sum of $10,816.77, with interest from the day of May, 1873. Held: that plaintiff might maintain an action for money had and received against defendant.

Appeal by defendants, from a judgment entered on a verdict in favor of plaintiffs. Also from an order denying defendants’ motion, made on the judge’s minutes, for a new trial.

<p>L U. S. BANKRUPT LAW.</p> <p>1. Marshal.</p> <p>(a.) Powers and duties in seizure of property of bankrupt.</p>

<p>Appeal by plaintiff from judgment entered on verdict directed in favor of defendant.</p>

<p>COUNTER-CLAIM—SET-OFF—-RECOUPMENT.</p> <p>1. Not allowed, when.</p> <p>(a) Joint claims in favor of two out of 'a number of defendants cannot he counter-claimed, set-off or recouped, wheii the action is such that a joint judgment cannot be rendered against such two, separately from the others.</p> <p>1. Partnership, Action for account.</p> <p>(a) The administratrix of B. brought action against H. and A. and several others, alleging a copartnership between B. and the defendants, and demanding an accounting. H. and A. put in a joint answer, whereby they denied the allegations of the complaint; and for a second defense averred that they, being members of a certain firm, entered into an agreement with the plaintiff in their individual capacities, whereby they employed him to render services for them, and in effect averred that all the services he rendered, and all that he did either for them or the firm, were rendered and done under that agreement; and for a third defense, by way of counter-claim, they set up what they relied on as a cause of action in their joint favor against the plaintiff, arising out of the agreement in the second defense referred to. Plaintiff demurred to the third defense. The demurrer was sustained at special term, Sanford, J., writing, holding above propositions. The answering defendants appealed.</p>

The action was brought to recover commissions for effecting an exchange of personal property for real, estate. The evidence was conflicting as to the employment and as to plaintiffs being the procuring cause. The judge charged the jury that if they believed the testimony of the plaintiff, and upon that found that he was employed as a broker, and that Avhatever services he rendered, he rendered under such employment, then he would be entitled to recover a verdict of $2,580.50.

<p>Stipulation not vacated, when.</p> <p>Where a party enters into one for the purpose of obtaining that which he could not otherwise have procured, and thereby obtains it, he should not be relieved from it.</p>

Appeal by the defendant McDonough from an order appointing a receiver herein and directing him to pay to the receiver $346.13.

The action was for the wrongful detention of a piano. By his answer defendant claimed title by virtue of a sale to him by plaintiffs. The issues were tried by a referee. On the trial, the plaintiffs proceeded on the theory that the sale was to defendant, but void by reason of his fraud. The referee, on conflicting evidence, found for defendant. From the judgment entered on his report plaintiffs appealed.