Volume 12 — Abbott's New York Practice Reports

John 0. Tinney sued the New Jersey Steamboat Company for injuries suffered by Mm while being carried as a passenger on one of the defendants’ line of steamboats from Hew York to Albany. The plaintiff embarked on the defendant’s boat “ Dean Richmond,” at Hew York, and retired to sleep in a berth furnished him by the company, and to which Ms ticket entitled Mm.

This was an action to recover possession of a farm. On the first trial the offer of the defendant to prove an equitable defence was rejected, and the plaintiff had a verdict, which was afterwards set aside, and a new trial granted, costs to abide the event.

I. December, 1860.—Motions by defendants to set aside amended complaints as irregular; on the ground that they were served without leave of the court. The facts are stated in the opinion.

Demurrer to answer. Elias Mayer sued Adolph Louis and Henry Rosenheim, in the Xéw York supreme court. The complaint charged the defendants as partners, and was founded on two certificates of deposit. These certificates were set out.

Joseph R. Stuyvesant brought ejectment against Gottlieb Grissler and others. The facts are as follows: In July, 1867, the plaintiff, being the owner of part and the lessee of another part of certain premises in this city, leased them to Browning & Moore for a term of ten years from May 1, 1868, at an annual rent of six thousand dollars.

Janette H. Corning and Samuel S. Dauchy, the defendants in this action, were administratrix and administrator, with the will annexed, of one Samuel G. H. Cook, deceased, and the defendant Dauchy was also at the same time executor of Janette C. Huntington, deceased. The action was commenced by plaintiff against them, describing them as the administratrix and administrator, with the will annexed, of Janette C. Huntington, deceased.

<p>Supplementary Proceedings.—Earnings of Sixty Days.</p> <p>The provision of section 297 of the Code, respecting supplementary proceedings, by rvhich the earnings of a debtor for sixty days “preceding the order” are exempted, refers to the order for the application of the debtor’s property, not to the original order for his examination.</p> <p>Motion in supplementary proceedings for an order that certain property be applied to the judgment.</p> <p>The facts are stated in the opinion.</p>

Demurrer to complaint. The plaintiff, by her complaint, stated that she was owner of certain lots of land on or near Seventy-seventh-street, in the city of New York; that the defendants instituted proceedings for regulating that street, and in October, 1858, demanded of her, as the equitable and just assessment on such lots, and on her, as the owner thereof, for that improvement, the sum of $2,641.52, with some interest; that she left the matter to her husband, as her agent;…

An order was made by Mr. Justice Sutherland, at special term, on the 17th day of August, 1860, denying the motion of the defendants to stay all proceedings in the above-entitled action, until a certain judgment, rendered in the Superior Court of New York, in favor of said defendants, for costs, in an action in which James McMahon was plaintiff and the Mutual Benefit Life Insurance Company was defendant, should be paid and satisfied.

The plaintiff brought his action in the Marine Court to recover a sum of money alleged to have been paid to the collector of assessments in payment of an assessment upon a lot of the plaintiff. The collector had credited the payment to another lot, and refused to rectify the mistake. The defendants demurred to the complaint. Judgment was given for the plaintiff on the demurrer, and the defendants appealed to this court.

<p>Default on Appeal from Marine and District Courts.</p> <p>The New York Common Pleas, at general term, require both parties to an appeal from an inferior court to be ready for argument when the case is called. Engagements of counsel are not considered an excuse in such cases for postponing the hearing.</p> <p>Upon an application to set aside a judgment of affirmance on such an appeal, regularly taken by default, the court require the appellant to show that his case presents á meritorious question; and this is ascertained by the statement of the case without argument, or by inspection of the return.</p> <p>The promise of a maker of several promissory notes that he will pay one of them when it shall mature, is no consideration for an agreement by the holder to forbear and give time for the payment of the other notes ; and the court will not open a default on appeal, where such an agreement to forbear is the only defence.</p>

<p>Motion for injunction and receiver.</p> <p>The facts are stated in the opinion.</p>

<p>Habeas Corpus.—Arrest.—Privilege of Police Officer.— Construction of Statutes.</p> <p>Upon habeas corpus to inquire into the detention of a defendant arrested on civil process, the judge may examine into the legality of the warrant in question, and the arrest or detention under it; and may discharge the prisoner if the case is one in which the process issued would not be allowed by law,—e. g., if the prisoner was arrested in violation of his privilege.</p> <p>Under section 34 of the Metropolitan Police Act {Laws of 1860, 446, §34),—which provides that “no person holding office under this act shall be liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, while.actually on duty,”—it is only while actually on duty that such persons are exempt from arrest.</p> <p>It seems, however, that the exemption from military service and jury duty is absolute and unlimited.</p> <p>Punctuation often determines the meaning of a sentence.</p>

<p>Justice’s Couet.—Charge to the Juey.—Appeal.</p> <p>A justice of the peace has a right to charge the jury ; although it is usual to omit to do so, and his omission or refusal is not error; hut where his charge is manifestly erroneous, especially if given at request of the successful party, it is error for which the judgment should be reversed.</p> <p>Where the j ustice in his charge assumed in favor of the defendant a material question upon which the evidence was conflicting, by instructing the jury that another question was the only point to be passed on,—Held, that judgment for the defendant should be reversed.</p>

Three several motions were made on behalf of the relator, John B. Cornell, surviving partner of the firm of J. B. & W. W. Cornell, on three several notices of motion, each for a peremptory mandamus, one against Richard B. Connolly, comptroller of the city of Hew York, and two against Michael Horton and others, the commissioners of the new county court house, in the city of Hew York.

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

The action was brought upon a note made and dated at Lock-port, in this State, May 30, 1857, for $400, and payable one year after date to the order of defendant, Wm. J. Dunlap, at Niagara County Bank (also in this State). The note was made by Wright, and indorsed by Dunlap for the accommodation of the other defendant, Virgil C. Taylor, and to enable him to raise money upon it.

<p>Appeal from an order made by the county judge in proceedings supplementary to execution upon a justice’s judgment for less than twenty-five dollars.</p>

Motion by a receiver of a corporation, who was appointed in this action, to compel a receiver appointed in another action to deliver to him the assets. The action was brought by the plaintiff against the Hew York Marble Co,, and Heniy Dwight and James R. Bume, who were trustees of that company.

This was an action brought to restrain the defendants from using the name or motto “ Live and Let Live” upon the signs at their refreshment saloon, No. 212 Broadway, on the ground that it was an infringement on the plaintiff’s right to the sole use of the name in that vicinity; such name having been kept up at his saloon No. 214 Broadway, for many years.

The facts of the case are fully stated in our report of the previous proceedings on mandamus against the hoard of supervisors. (11 Ante, 114.)

<p>Motion to compel Amendment op Pleading.—Rule 50.— Excuse fob Delay.</p> <p>A motion to strike out matter from a pleading cannot be made unless notice thereof is served within twenty days after service of the pleading.</p> <p>This rule applied in a peculiar case where the moving party sought to excuse his ' delay on the ground that he had been misled.</p>

James L. Munson, the plaintiff in this proceeding, presented a claim to T. M. Howell and others, who were administrators of the estate of one Mallory, deceased ; and they disputing the claim, it was agreed that it should be referred under the' statute (2 Rev. St at., 89). The referees reported against the claimant, and the defendants entered up judgment for costs as in an action.

This was an action against bail. After it was commenced, their principal returned from abroad, and they thereupon applied, on grounds which are stated in the opinion of the court, for further time to surrender him. The application was granted hy the court at special term, and the plaintiffs appealed.

Proceedings, upon habeas corpus, instituted by the relator to obtain-'possession and custody of his two infant daughters. The facts are set forth in the opinion.

<p>Trademark.— Right to Use Firm Name.—Effect of Purchasing Partnership Property.</p> <p>A purchaser of all of the partnership property of a firm, on their dissolution, does not thereby acquire the right to use the firm name as a label on his goods, or to advertise himself as the successor of such firm, and will be restrained in so doing.</p> <p>The case of Peterson v. Humphrey (4 Abb. Pr., 394), criticised and disapproved.</p> <p>On an application to restrain the unauthorized use of a firm name, it is not necessary to show that actual damage or loss has accrued to . the plaintiffs.</p>

<p>Chattel Mortgage.—Filing.—Execution.</p> <p>The provisions of the statutes relative to the filing of chattel mortgages (3 Rev. Slat., 222, 5 ed.) do not apply to assignments of chattel mortgages. The latter are not required to be filed.</p> <p>Neither chattel mortgages nor assignments are required, by that statute, to be filed as against an execution-creditor of the mortgagee.</p> <p>Although a mortagor, after the mortgage had been assigned by the mortagee to a third party, as security for a debt due from the mortgagee to such third party, conveys, without the knowledge or consent of such third party, by bill of sale, the mortgaged property to the mortgagee, which bill of sale is put on record by the mortgagee, and the assignment is not upon record, yet the mortgage, in point of law, is not cancelled by the giving the bill of sale against the assignee of the mortgagee.</p> <p>A purchaser at an execution-sale of the property mortgaged, under an execution against the mortgagee, the judgment obtained and execution issued after the giving and recording of the bill of sale by the mortgagor to the mortgagee, will acquire no title to the property mortgaged and so sold, as against the vendee of the assignee of the mortgagee, on a sale made in foreclosure of the mortgage assigned.</p> <p>The only title the mortgagee acquires in the property mortgaged, by a conveyance by the mortgagor to him after the mortgagee had previously assigned the mortgage to a third person, is a mere equity of redemption, which is not the subject of levy and sale under execution, unless it be united with the right of possession for a definite period.</p>

The defendant, on May 1,1857, hired two rooms in No. 212 Broadway, New York, belonging to one Davis, who, on July 16, 1857, leased the whole building to one Knox. On the same day, Knox assigned the lease to one Russell. On August 1, 1857, the defendant paid the quarter’s rent, then due, to Knox, as the agent of Russell. On September 30, 1857, Russell assigned the lease to the plaintiff, who, on November 1, demanded the rent of the whole expired quarter from the defendant.

<p>Appeal from an order striking out an amended complaint.</p> <p>The facts appear in the opinion.</p>

Mary Ann Barker, as administratrix of Elijah C. Barker, brought this action against Lemuel B. Clark. The summons was for specific sums with interest. The complaint, after alleging plaintiff’s due appointment, residence, &c., set forth several causes of action, the statement of one of which, 'here, is sufficient to show all the questions raised.

I. Motion for confirmation of report of commissioners of appraisal in proceedings taken by the commissioners of the Central Park, in the city of New York, to acquire lands for the extension of the park. The facts are stated in the opinion.

<p>Motion for a stay of proceedings pending an appeal.</p>

<p>Habeas corpus.</p> <p>The facts are stated in the opinion.</p>

Henry A. Dumesnil was administrator, and Jane P. Spotts was administratrix of Harry I. Spotts. Henry A. made Ms separate final accounting, on wMch he had the report of an auditor ; and the surrogate of the county of New York, upon motion, and after hearing all the parties in interest, confirmed the auditor’s report, and made a decree of final settlement of the administrator’s accounts.

<p>Assessments in the City of New York.—Proceedings to Vacate.</p> <p>The fraud under which an assessment may be set aside under the act of 1858, must be actual fraud, not mere omissions, errors, or negligence.</p> <p>A petition for the paving of a street, asked to have the expense paid one-half by the Common Council and one-half by the owners, and the published notice of the pendency of the application so stated. The work was done and the assessment charged the whole expense upon the owners.</p> <p>Held, that this was not a legal irregularity for which the assessment could be set aside.</p> <p>In determining an application to vacate an assessment, the judge is confined to the allegations in the petition.</p>

This was an application to take proofs of the frauds and legal irregularities in relation to certain assessments alleged in the petition.

<p>Assessments in the City of New York.—Proceedings to Vacate.</p> <p>The act of 1858, giving proceedings to vacate assessments in the city of New York for fraud or legal irregularity, does not create any new ground for vacating assessments.</p> <p>The fact that where work exceeding five hundred dollars in expense was performed by contract, the contract was not given to the lowest bidder, is not a legal irregularity for which an assessment thereof can be vacated, after it has been confirmed without objection.</p> <p>The fact that such a contract was given to a higher bidder does not amount to fraud within the statute, when it is not shown that the lowest bidder ever offered to fulfil his bid.</p> <p>Defects in the proceedings not objected to in the petition, cannot be considered.</p> <p>The feet that an assessment has been vacated on the petition of A*, respecting his premises, does not make the question res adjudicate, on the petition of B. to vacate it in respect to his premises adjoining.</p>

<p>Assessments in the City of New York.—Vacating for Fraud or Irregularity.</p> <p>The irregularity in passing an assessment ordinance by one board of the Common Council in one year and the other board in the following year,—Held, cured by an amendment appointing new assessors.</p> <p>The act of the Corporation in accepting a bid higher than the lowest, is not a legal irregularity within the statute, nor is the fact that the contract-price exceeded the bid.</p> <p>It is an objection to granting a petition to vacate an assessment that the petitioner was not owner of the premises affected, when the assessment was confirmed.</p>

<p>Demurrer to complaint.</p>

<p>Motion to vacate a judgment.</p>

<p>Mechanic’s Lien.—Parties Defendant.</p> <p>In a proceeding to enforce a mechanic’s lien, the person for whom the building was erected, and who contracted to pay for it, is “the owner,” within the statute.</p> <p>Hence, in a lien for work on a public-school building in the city of Hew York, the ward school-officers, who select the site, and contract for the building; the Board of Education, under whose direction the school-officers act in so doing, and who pay for the building; and the mayor, aldermen, and commonalty of the city, who have the use of the building, and the right of its disposal after its use as a school ceases,—are all proper parties, to be joined as “the owner” of the building, within the meaning of the statute.</p> <p>The provision of the Laws of 1851, 747, § 25, as amended by the Laws of 1853, 635,—requiring all suits in relation to school-property to be brought in the name of the Board of Education,—does not apply to such a case.</p>

<p>Counter-Claim.—Joint and Several Liability.— Relief in Equity.</p> <p>Under the Revised Statutes (2 Rev. Stat., 354, § 18, subd. 6), a set-off was not authorized, of a demand due from the plaintiff to all of several defendants jointly; but by the Code of Procedure (§ 150) if the liability is joint and several, one of several defendants, although sued jointly with other parties to the contract, may avail himself of a counter-claim existing solely in his favor against the plaintiff; and if allowed, it will operate wholly or pro tanto as the case may be, as a satisfaction of the plaintiff’s claim, and bar a recovery against the remaining defendants.</p> <p>Where, however, the defendants are jointly and not severally liable, neither under the Revised Statutes nor under the Code can a demand due from the plaintiff to one of the defendants separately be set up, at law, as a counter-claim by all or either of the joint debtors.</p> <p>An undertaking, in the form usual under the Code of Procedure, given by several mere sureties, without words of severance, is a joint obligation.</p> <p>Equity will not reform an undertaking so as to make it joint and several instead of joint, where the undertaking itself creates the whole liability and there is no antecedent indebtedness.</p> <p>But where the plaintiff is insolvent, equity will allow a counter-claim held by one of two jointly indebted defendants, to be set up and to operate in favor of both defendants.</p>

I This was a motion for mandamus to the street-commissioner bf the city of New York, to compel him to award a contract to the relator, who had made proposals therefor, pursuant to advertisement.

Question of costs. In this action an attachment was issued to the sheriff of New York, under section 227 of the Code, for an amount exceeding $16,000. The sheriff served it by leaving a copy with sundry persons who were supposed to be indebted to the defendants, or to have money in hand belonging to them to an amount probably sufficient to pay the demand.

<p>Evidence.—Contradicting Witness.</p> <p>The rule that a party who has called a witness will not be permitted to impeach him, does not go to the extent of preventing the party from otherwise proving the truth of a fact to which the witness may have testified, although the proof may have the effect of directly contradicting him.</p> <p>It is only as to statements of matters merely collateral that the party calling the witness and making the inquiry is bound.</p>

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

Louisa Donai Wehle sued Henry L. Butler, Jonaathan J. Broome and Oliver M. Clapp, copartners in business, for the conversion of plaintiff ’ s goods.

The plaintiff recovered judgment against the defendant, a little more than two years ago, upon a promissory note, upon failure to answer. The defendant had recently moved to have the judgment opened, and to be allowed to come in and defend.

<p>This action was brought to recover possession of. certain property which had been levied on by the defendant Vultee, as a constable, under an execution issued out of the District Court of the city of New York, for the first judicial district, upon a judgment recovered by the Manhattan Firearms Manufacturing Company against Robert Marston. The plaintiff claimed the property by virtue of a chattel mortgage executed to her by said Robert Marston, the son of the plaintiff. Robert Marston was a gunsmith, and kept a store; he mortgaged his stock in trade to the plaintiff, his mother. She left the’ property, after the mortgage to her, in his possession, with directions to go on and sell and treat the property as he had done before the mortgage. The property was levied upon by Vultee, while in the possession of Robert Marston, to satisfy the said judgment.</p> <p>The only evidence given as an excuse for leaving the property in possession of the mortgagor was that of the plaintiff herself, and that was, that she did it to enable him, the mortgagor, to support his family.</p> <p>Exceptions were also taken to a part of the charge.</p> <p>The action was tried before a jury on the 12th day of May, 1860. The jury found for the plaintiff, and on the first day of June, 1860, judgment was entered for plaintiff. The defendants then moved for a new trial at a special term of the court held in November, 1860, which was refused, and the defendants then appealed from the judgment, and from the order denying a new trial, to the general term of the court.</p>

<p>Habeas Corpus.—Privilege of Witness.—Grand Jury.—Contempt.</p> <p>The constitutional provision, that no person shall be compelled, in any criminal case, to be a witness against himself, exempts the witness only where the matter or trial under investigation is criminal, and is against himself. No one who is not a defendant can claim the exemption.</p> <p>The provision of section 52 of the charter of the city of New York (1 Laws of 1857, 894), that a person guilty of bribery may be compelled to testify respecting it, but his testimony cannot be used against him—is not unconstitutional.</p> <p>It is not necessary that a commitment of a witness for refusing to testify in such a case, should show affirmatively that he was not entitled to the privilege, even though the commitment state that he claimed the privilege.</p> <p>Where the witness refused to testify before the grand jury in their private session, and was then brought before the Court of Sessions, and for his refusal was committed ;—Held, that the commitment was regular. The oath of secrecy taken by the grand jury is not violated by their reporting to the court the contumacy of a witness. The jurors are a part of the court, and the court has power to compel such witness to attend before it, and inquire into and punish his contempt.</p> <p>It is not necessary that a commitment in such case should show the relevancy of the question, or how the answer might affect the prisoner.</p>

<p>Assessment eor Local Improvement.—Petition to Vacate.—Legal Irregularity.—Retroactive Statutes.</p> <p>Under a resolution of the common council of New York city,—directing a street to be paved, and “ cross-walks to be laid or relaid at intersecting streets, under the direction of the Croton Aqueduct Department,”—it is not necessary that cross-walks should be laid at all the intersecting streets, but it is sufficient if they are laid at those intersections at which, in the judgment of the department, they are necessary and proper.</p> <p>Under section 38 of the New York city charter of 1857,—which provides that all contracts made by authority of the common council shall (except in certain cases) be made after advertisement inviting proposals,—Reid, that when an improvement is ordered by the common council which embraces several kinds of work capable of being separately performed by different parties, some of which are patented and others not patented, separate proposals should be invited for that part of the work which is not patented, and for which there can be competition.</p> <p>Where, therefore, the laying of Nicolson pavement (a patented article), and stone cross-walks (not patented), was done under one contract, which had been let after proposals for Nicolson pavement only had been invited,—Reid, that the contract was unlawfully entered into, and an assessment for such work was vacated.</p> <p>Quei'e, as to whether the common council, under section 38, may lawfully contract for a patented article.</p> <p>It is lawful to allow the contractor, in addition to the sum fixed in the contractor’s proposal, a sum equal to the inspector’s fee for each day less than the contract time within which he completes the work.</p> <p>The collector of assessments in New York city may charge a commission of two and a half per cent, on the whole sum paid by him into the bureau of assessments, and may, therefore, compute the two and a half per cent, not only on the other expenses of the work, but also on his own commission.</p> <p>The principle upon which an assessment is made, if erroneous, is not a “legal irregularity” within Laws of 1858, p. 574, § 3, ch. 338, and is not the subject of review in a petition under that statute.</p> <p>The act of 1870, ch. 383, in regard to assessments in Mew York city, has not a retroactive effect in a case heard before the act passed.</p>

<p>Appeal from an order vacating an attachment.</p> <p>The plaintiffs in this action obtained an attachment under the</p> <p>Code of Procedure, on affidavits that the defendants were about to dispose of their property with intent to defraud creditors. The only facts stated in support of this were, that defendants, when called.on to give security for the debt, which they had originally agreed to give, stated that if they were sued they would assign their property for the benefit of creditors, and should provide first for confidential creditors. The defendants moved at a special term to vacate the attachment on the ground that these facts were insufficient to justify it. The plaintiffs opposed the motion, and offered additional affidavits in opposition, to show that defendants had made a general assignment of all their property, by whicli plaintiffs contended they had no further interest therein, and no right to oppose the motion.</p> <p>The motion was granted (see the decision reported, 10 Ante, 390), and the plaintiffs now appealed to the general term.</p>

Creditor’s action to set aside an assignment for benefit of creditors made by the judgment-debtor. It appeared, on the trial of this action, that the debtor had made a general assignment for the benefit of creditors, in July, 1860. The assignment was acknowledged and recorded as required by the act of 1860, but the debtor had made no inventory, as required by section 2 of that act.

George W. Douglass applied under tlie act of 1858 to vacate an assessment imposed for regulating and grading Sixty-fourth-street from Third-avenue to Fifth-avenue, in Hew York city, on the ground that the resolution and report of the committee recommending the improvement, or notice thereof, had not been published as required by section 7 of the charter of 1857, which provides as follows: “All resolutions and reports of committees which shall recommend any specific…

Motion to dismiss appeal. This action was tried by a justice of the court and a jury, and exceptions were taken on the trial, to questions of law in the charge of the justice to the jury. Judgment was entered for the plaintiff, and from this judgment the defendant now appealed.

<p>Service by Publication. — Proof of Yon-Residence.—Affidavit of Deposit in Post-Office.—Definition of Word “Week.”</p> <p>To obtain an order allowing service of summons by publication, in a foreclosure suit, an affidavit of the non-residence of the defendant, made on information and belief, is sufficient.*</p> <p>An affidavit of a person that he deposited a copy of the summons and complaint ‘ ‘ duly directed ” to the defendant “ at Belleville, New Jersey, and paid full postage thereon, there being a regular mail communication between the city of New York and Belleville, New Jersey,”—Held, suEcient to show a deposit of the summons and complaint, duly directed, &c., in the post-oEce at Hew Torio.</p> <p>* Compare Brooklyn Daily Union ®. Hayward (11 Abb. Pr. N. S., 235). See, also, Bascom v. Smith (31 N. Y. 595), where an affidavit stating that deponent “ applies for an attachment against defendant, on the ground that he is a non-resident of,” &c., without any other direct allegation, was sufficient to sustain jurisdiction, as against third parties.</p> <p>A week is a definite period of time, commencing on Sunday and ending on Saturday; and under the rule requiring service by publication to be made, by publication “not less than once a week for six weeks, ” the notice need not be published on the same day in each week, but may be on any day in each 'week during the six weeks. Seven days’ interval between publications is not essential.</p>

Motion to punish for contempt. In this action, which was brought to restrain the defendants from abandoning a part of their railroad, an injunction was obtained by the plaintiffs, forbidding defendants and their agents from taking up or removing their road, or selling or disposing of the iron forming the track thereof, or any part thereof, except such as were unlit for use, and necessarily removed in repairs.

Trial of an action by William H. Weed and others against Gilbert Peterson and others, to restrain the use of a trademark and to recover damages. One Daniel Simmons, who, from 1842, had been engaged in the business of making axes, took the plaintiffs into partnership with him in 1848, under the name of “D. Simmons & Co.,” which they used on their stamps and labels. The firm continued till Simmons’ death in 1860, without any change in the trademark.

This was an application by the defendant for leave to renew, upon affidavits on his part, a motion to vacate an order of arrest, he having heretofore moved to vacate upon the affidavits , upon which the order of arrest was granted, and the motion having been denied, and the order of denial affirmed upon appeal. The action was on contract, and the facts upon which the arrest was obtained were not set forth in the complaint.

Motion to exonerate bail. On the 16th of August, 1858, an action was commenced in this court against O. H. Berryman, and an order of arrest was obtained against him. The action was for an assault and battery. Upon that arrest the present defendants, Carrington and Kirby, entered into an undertaking together with Berryman, dated August 25, 1858, engaging that Berryman should at all times render himself amenable to the process of the court during the pendency of the action.

John J. Grace, the relator, applied for a mandamus addressed to the board of police commissioners of the city of Troy, under circumstances stated in the opinion.

<p>Costs.—Right of Party testifying in his own behalf to recover Witness-Fees.</p> <p>A party, upon making the necessary proof that he attended the trial only as a witness, and not in any respect as a party, should be allowed witness-fees for . his travel and attendance.</p> <p>The affidavit of the party claiming witness-fees for his own attendance as a witness in his own behalf, should be required in all cases, in addition to any other proof, that he attended solely as witness, that may be offered ; for no one but the party himself can swear positively or conclusively to the fact that he was not attracted by his interest in the cause to attend at the trial. His own affidavit should be deemed sufficient; but that ought not to be dispensed with.</p>

Motion that the plaintiff file security for costs. The action was brought by John Norris, as administrator of the goods, &c., of Nehemiah F. Pearson, deceased, against Frederick W. Breed. The facts sufficiently appear in the opinion.

This action was brought to restrain the defendant from using the word Cocoine as the name of a compound sold by him, on the ground that it was an infringement of the plaintiffs’ alleged right to the exclusive use of the word Oocoaine for such compound. The plaintiffs obtained an injunction, and, after judgment as to their title, an order of reference to ascertain their damages.

Trial by the court. Thomas Nash brought this action against R. D. Douglass, to compel the defendant, who was an officer of the Children’s Aid Society of the city of Brooklyn, to return plaintiff’s son, who was a minor, and also to recover one thousand dollars damages for the alleged enticing away and harboring of said minor. The material facts appear fully in the opinion.

This action was brought against Mr. Flagg, the comptroller of the city of New York, and others, in their capacity as officers of the Corporation. The plaintiff procured an injunction in the action, which, being subsequently dissolved, the defendants obtained an order of reference to ascertain the damages they had sustained by reason of the injunction.

<p>Application for a mandamus.</p> <p>The facts are fully stated in the opinion.</p>

Samuel C. Brown sued Charles Leigh, in the supreme court; and in his complaint alleged that one William F. Brown, being, on a day named, the owner in fee, and in possession of certain lands, conveyed them in fee to plaintiff. That plaintiff was the owner in fee of such lands, and in possession thereof. That defendant unjustly claimed an estate therein for not less than ten years. Judgment was demanded that defendant be declared barred of all claim to the land.

Joseph. W. Turnbull sued Eli Osborn and Charles B. Fish in the Brooklyn city court,' for six thousand five hundred dollars, money lent and advanced. The answer was a general denial. On the trial, the plaintiff proved that on February 9, 1870, he had a check for seven thousand dollars, drawn by Mayor Kalbfleisch, of Brooklyn, and that this check he had given to Fish, and received in return three checks made by Osborn & Fish (the defendants).

The proceeding was an application for a mandamus against the comptroller of the city of ew York. The facts are fully stated in our report of the previous proceedings in this controversy. (11 Ante, 114; 12 Ib., 70.) From the latter decision this appeal was taken.

<p>Appeal from an order adjusting costs.</p> <p>The facts appear in the opinion.</p>

Motion to vacate an order of arrest. James S. Negley sued Patrick C. Devlin in the New York superior court, and obtained an order of arrest against the defendant.

.Appeal from an order requiring security for costs. ' The plaintiff was a resident of the county of Kings, and the defendant on that ground obtained an order requiring him to file security for costs. From this order the plaintiff appealed.

<p>Referee’s Report.—Irregularity.</p> <p>The charges upon which a motion to set aside a referee’s report for improper conduct with the successful attorney, undue influence, &c., is based, must be affirmatively proved.</p> <p>A report cannot be set aside upon mere suspicion or surmises, especially when these are founded on alleged previous improprieties with the unsuccessful side.</p>

<p>Examination of Party.</p> <p>The examination of a party, which the Code permits before trial as a substitute for the examination at the trial (Code, § 391), cannot be had until after issue joined.</p>

William A. Coit sued Joseph B. Stewart in the supreme court, to recover on two promissory notes made by defendant.

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

The action was brought by the plaintiff against three defendants, Stewart, Budd, and Avery, for malicious prosecution and false imprisonment. At the circuit, the judge, upon the evidence which is stated in the opinion, directed a dismissal of the complaint. From this judgment the plaintiff now appealed.

Motion to dismiss an appeal. Charles Hoffenberth sued John T. Muller, in the marine court, and on April 4, 1871, judgment was entered in favor of the defendant. On the 24th the defendant’ s attorney consented in writing that the plaintiff have twenty days’ further time to serve case and perfect appeal to the court of common pleas.

Morris Raphaelsky sued James Lynch, in the New York superior court, for the conversion of certain cases of tobacco, which the defendant, as sheriff of New York county, had, on January 7, 1864, seized under an attachment against William Salamon. The tobacco at the time of the seizure was in store, and a warehouse receipt therefor had been made to James Parker.

<p>Motion for readjustment of costs.</p> <p>The facts appear in the opinion.</p>

This was an action against the defendant founded on his liability as an innkeeper for baggage of the plaintiff, his guest. The plaintiff recovered a verdict, and from the judgment entered thereon, and from an order denying a new trial, the defendant .now appealed.

This was a creditors’ action, brought against B. Greenwood, R. B. Greenwood, and R. W. Brewster, to set aside an assignment made to R. B. Greenwood by the other defendants, on December 26,1854. The plaintiffs recovered judgment against the defendants B. Greenwood and Brewster, on December 13, 1854, by default, for the sum of $1,026.80, founded on a note signed “ B. Greenwood & Co.,” which was the partnership name of those defendants.

<p>Extba Allowance on Discontinuance.</p> <p>Plaintiff may discontinue, although defendant has put in a counterclaim.</p> <p>The court may compel the plaintiff to pay to the defendant an extra allowance in addition to the taxable costs, as a condition of discontinuing.</p> <p>Such extra allowance was granted, in a case where defendant had retained counsel, and served an answer joining issue with the plaintiff’s cause of action, and setting up a counter-claim, and where plaintiff, after having been required to do so, had failed to file a bond for costs.*</p> <p>* Compare Leslie v. Leslie, 10 Abb. Pr. N. S., 64.</p>

The action was brought to restrain an infringement of plaintiff’s trade-mark. Judgment was rendered for the plaintiffs, from which defendants appealed.

This action was brought by Amos K. Hadley, plaintiff, against Eleazer Ayres, defendant, to recover the sum of two thousand nine hundred dollars, which the former alleged that the latter owed him over and above all payments and counter-claims, for professional services rendered as an attorney and counselor at law, in prosecuting and defending divers suits in the courts of this State, and drawing sundry contracts and agreements, between January 1, 1857, and June 27, 1867.

<p>Arrest. .</p> <p>A complaint showing a cause of action for the recovery of possession of real property, but claiming no damages for the withholding, is not sufficient to authorize an order of arrest, especially where no injury to the premises is shown.</p> <p>It seems, that subdivision 1 of section 179 of the Code, so far as it mentions taking, detaining, or converting property, refers to personal property only.</p>

Motion to open default, and for leave to enter discontinuance. This was an action for slander, which was brought to an issue, and noticed for trial by the defendant’s attorneys. On the 11th of February the cause was reached, and the plaintiff not appearing, the action was, on motion, dismissed with costs.

Motion to vacate an order for the examination of the plaintiff, granted at the instance of the defendants, before issue joined. This action was brought by Amos K. Hadley, plaintiff, against Jonathan 0.

<p>Defences.—Foreign Usury Laws.</p> <p>In an action on a promissory note, the defence was, that the note was made in violation of the usury laws of a foreign State. By those laws the contract was declared not to be avoided, hut by way of penalty for a violation, a forfeiture of three times the excess of interest reserved, was to be allowed in an action on the contract; or if paid, to be recovered back,—Held, that the defendant could not, in this State, avail himself of the penalty even by way of defence.</p>

This was an action brought by Barton and his wife against Gledhill and his wife, to recover for a slander alleged to have been spoken by the wife o'f Gledhill against the wife of Barton. The judge rejected the testimony of the plaintiffs on the objection that they were husband and wife, and could not testify on their own behalf; and the defendants succeeded. The plaintiffs now appealed.

Thomas D. Penfield brought this action against Edward D. James, Sarah James and others, for the fore closure of a mortgage of five thousand dollars on property in the city of New York. Pending the trial, and before verdict, the two defendants, James, who were the only parties against whom a personal claim had been made, and were the only parties who had answered, offered to allow judgment against them for a certain sum, with interest and costs.

<p>Former Adjudication.</p> <p>Where defendant pleaded a former judgment between the same parties, and it appeared on the trial by his evidence that there was a former action pending between them in the Marine Court, in which the plaintiff had -recovered, but which recovery that court, at the general term, had reversed, without, however, ordering a new trial, or rendering final judgment,—Held, that such reversal was nevertheless a bar to the present action.</p>

Mr. Mitchell was an attorney and counsellor-at-law, and was, as such, retained by, and acting for, one McKechnie, who was the defendant in an action brought by J. H. McCunn and J. Moncrief, in the Court of Common Pleas for the city and county of ¡New York, to recover from McKechnie the possession of a certain lot of land in that city.

The action was by John Godfrey, upon a policy of insurance for a loss by fire. The answer put in issue merely the value of the property destroyed or injured. Three other similar cases came before the court at the same time on the same motion.

Victor Vincent brought an action against Charles Bamford, in the New York superior court, to charge the defendant as a stockholder in the New York & Galena Lead Mining Co., for a debt due to the plaintiff from the company, for which he had recovered a judgment, execution on which had been returned unsatisfied. The defendant was sought to be made liable therefor as a stockholder of the company, under section 18 of the manufacturing companies act of 1848.

<p>Motion for an attachment.</p> <p>This was a motion by defendants, to make plaintiff’s assignee in bankruptcy liable, under 321 of the Code, for costs recovered by defendants. After the action had been at issue a year, the plaintiffs became bankrupt, and an assignee was duly chosen, who pressed the suit to trial. The defendants were successful upon the trial, and entered judgment for seven hundred and ninety-four dollars and ninety-eight cents, costs ; and then moved for an order that the assignee be made liable for the costs, and for an attachment against him, on his failure to pay them.</p>

Trial by the court. This action was brought by John Mulligan against Jacob Elias, to have the chemical works of the defendant, as carried on by him, in William sburgh, declared a nuisance and enjoined, and to recover incidental damages. The facts sufficiently appear in the opinion of the court.

<p>Demurrer to complaint.</p>

Demurrer to complaint. This action was brought by the plaintiffs, who were judgment-creditors, and also stockholders of the New York and Liverpool United States Mail Steamship Company, against that company, the Balance Dock Company, another corporation, and James Brown and other defendants, some of whom were officers, and stockholders, and some creditors, of the first-named corporation. The contents of the pleadings are stated in the opinion.

Motion to vacate a preliminary injunction order. The action was brought by the town of Rochester against Jacob Davis and others. The material facts are stated in the opinion.

Petition of Solomon Jacobs to be discharged from imprisonment, under 2 Rev. Stat., 28, Art. 5, entitled, 11 Of voluntary assignments by an insolvent, for the purpose of exonerating his person from imprisonment.”

<p>Assignability oe Cause of Action.</p> <p>The right of action which one has, who has been induced by fraud to execute a conveyance and part with possession, is not assignable. The deed being, voidable only, but not void, if it passes all the estate of the grantor, a subsequent grantee cannot maintain an action to set it aside.*</p>

<p>Injunction.—Contested Motion.—Power of County Judge.</p> <p>The Code of Procedure (§ 225) authorizes a motion1 to dissolve a preliminary injunction to be made before añ answer to the complaint is put in.</p> <p>A county judge cannot make an order to show cause why an injunction should not be continued, returnable before himself.*</p> <p>The decision in Parmenter v. Roth (9 Abb. Pr. N. S., 385), that a county judge cannot decide a contested motion, applies to the granting of injunction orders.</p> <p>Where an injunction order was granted, restraining the defendants until further order, &c., and also requiring them to show cause, on a day named, why the order should not be continued,—Held, that the order was an ad interim order, and ceased on the day for showing cause, unless it was then continued by a valid further order.</p> <p>* To the same effect, compare Town of Rochester v. Davis, page 270 of this vol.</p> <p>An injunction order which forbids an incorporated railroad company from leasing or selling any part of the property of the company, is an injunction which suspends the “ general and ordinary business of a corporation,” within section 224 of the Code, and 1 Laws of 1870, p. 421, ch. 151, § 1, and cannot be granted by a county judge.</p> <p>It seems, that an injunction restraining the corporation from entering into a particular contract for the building and equipping of the road, would be of the same nature.</p>

This was an action against the drawer and indorsers of a bill of exchange or draft, and was tried at a circuit in the first district, held by Mr. Justice W. F. Allen. The defence set up by the indorser who litigated the action, was, that the draft was given in renewal of a former draft made and indorsed by the same parties, which was usuriously discounted by the plaintiff, in its inception, the indorsers being accommodation indorsers, without consideration.

The action was for foreclosure of a mortgage upon real property; and after the usual judgment was had directing a referee to sell the premises, the plaintiff died. The referee proceeded and sold the lands; and the purchaser having demanded possession from the occupants, which was refused, applied for a writ of assistance, which was denied, and the purchaser appealed.

<p>Appeal.—Notice to Limit Time.</p> <p>Where the successful party treats the case as one in which a notice of the entry of judgment is necessary, in order to'limit Ms adversary’s time to appeal, and accordingly gives him such notice, a notice of appeal seasonably served after such notice is enough, and the party cannot object that the notice of appeal should have been served within twenty days after judgment.</p>

Eliza Maloney, as widow of Patrick Maloney, deceased, brought an action in the supreme court to recover her dower interest in certain lands. Patrick Maloney, her husband, being the owner of the premises, had, on November 11, 1864, conveyed them to his brother, Michael Maloney, for a consideration of one dollar, and in this conveyance the plaintiff had joined, and released her dower in the usual form. On December 28, 1864, Michael Maloney conveyed the premises to plaintiff.

<p>Appeal from an order vacating an order of arrest.</p> <p>In this action, which was brought in the Supreme Court, the plaintiff applied to the county judge of the county of Sullivan, for an order of arrest. The defendants, on affidavits and on one day’s notice, applied to the same judge to vacate the order, which he accordingly did. The plaintiff now appealed to the Supreme Court at general term.</p>

<p>Trial by the court.</p> <p>This action was tried before Justice Balcom, at a special term, of the court, in Delaware county, commencing on the 28th day of May, 1861, when the following facts were proved or conceded :</p> <p>Jonas H. Bixby and wife gave Arad Stowell and another a mortgage on certain lands in the town of Tompkins, Delaware county, dated the 5th day of November, 1855, which was duly recorded in the office of the clerk of Delaware county the 15th day of November aforesaid. The mortgage and bond that accompanied it, were given to secure the payment to said Stowell and another of $530, and interest thereon. The plaintiff purchased the bond and mortgage, and became the owner thereof, on the 14th day of February, 1860. He foreclosed the mortgage by advertisement, and became the purchaser of the mortgaged premises, in good faith, for the sum of $1500, on the 15th day of May, 1860. The sum of $640.37 was then due and unpaid on the mortgage and bond.</p> <p>There was no lien on the premises prior to the mortgage by judgment, decree, or otherwise. But between the time the mortgage was recorded and the 17th day of December, 1857, judgments were duly recovered and duly docketed in the office of the clerk of Delaware county, in the aggregate amounting to about $4700, which were not paid and were in full force when the plaintiff purchased said premises, and they were liens thereon.</p> <p>The plaintiff caused notice of the sale, by virtue of the mortgage, to be duly served in due time, according to law, on the mortgagors and the owners of said judgments, and on all others, except the defendant, who had any lien or claim on said premises prior to the sale.</p> <p>Th.e defendant had a judgment against the mortgagor, Jonas H. Bixby, and another, for about $38, which was duly docketed in the office of said clerk on the 17th day of December, 1857; which judgment was a lien on the mortgaged premises when they were purchased by the plaintiff.</p> <p>The plaintiff was ignorant of the existence of the defendant’s judgment until after he purchased the premises and paid therefor, and paid over the surplus money as hereinafter mentioned ; and prior to his purchase, the plaintiff caused a search for liens upon said premises to be made by the clerk of Delaware county, and such clerk sent him a certificate, which purported to show all the judgments against the mortgagor, Bixby, docketed in his office and in force, on the 6th day of April, 1860; in which certificate the defendant’s judgment was not mentioned, by reason of an oversight of the clerk.</p> <p>The defendant was not served with notice of the sale of the mortgaged premises, in consequence of the ignorance of the plaintiff that he had a judgment against Bixby. But the defendant was a subscriber for, and reader of, the newspaper in which said notice was published, during the entire time of its publication; and he passed the place where the sale was made, and knew the plaintiff was then selling the premises, by virtue of said mortgage, and-heard the plaintiff bid $1500 therefor; and he did not object to the sale, or inform the plaintiff that he had a judgment against Bixby, the mortgagor. He did not then think of his judgment, and supposed he should collect it out of property other than said mortgaged premises.</p> <p>Henry Evans had the first lien by judgment on the premises, subsequent to the mortgage, and the defendant was his attorney, and within a day or two after the plaintiff purchased the premises, he, as attorney of Evans, demanded the surplus money of the plaintiff, arising from the sale, over and above satisfying the plaintiff’s mortgage, and the plaintiff paid such surplus money to the defendant for Evans.</p> <p>The premises were worth less than $4000 when the plaintiff purchased them; and the lien thereon by the defendant’s judgment was then of no value whatever, by reason of the older liens on the premises; and the premises are not now worth the amount of the liens thereon prior to the defendant’s judgment.</p> <p>Within a few days after the defendant received the surplus money of the jfiaintiff, and before the first of June, 1860, he caused an execution against the property of the mortgagor, Bixby, in due form, to be issued on his judgment, and directed and delivered to the sheriff of Delaware county, for collection; and he caused said premises to be advertised for sale on said execution.</p> <p>The plaintiff, on the 5th day of June, 1860, caused a notice in wilting to be personally served on the defendant, in the following words and figures, to wit:</p> <p>“ To Truman H. Wheeler, Esq.: I understand that you have a judgment against Jonas H. Bixby, a transcript of which was filed in the clerk’s office of Delaware county on or about the 17th of December, 1857. Also, that you have recently issued an execution upon said judgment against the said Bixby, and that you are now advertising the premises now occupied by me for sale under, and by virtue of, said execution. It therefore becomes necessary for me to commence a suit in equity to foreclose your equity of redemption. You will please to take notice, that if you will discontinue your proceedings for the sale of the said premises, I will commence said suit in equity, and will ask for a decree of the court, that your equity of redemption be foreclosed without costs; but if you refuse or fail to discontinue said proceedings, I shall ask that your equity of redemption be foreclosed with costs of suit. Dated June 3d, 1860.</p> <p>“Yours, &c., Charles Root.”</p> <p>The defendant did not discontinue said advertisement, but refused to do so; and the plaintiff soon commenced this action to restrain the defendant from selling said premises on his judgment or by virtue of said execution, or any execution issued or to be issued, on said judgment; and he obtained an injunction so restraining him during the pendency of the action.</p> <p>The plaintiff demanded judgment in his complaint—1st. That the defendant, his agents, and all persons acting under him, be forever restrained from selling said premises by virtue of the defendant’s judgment; 2d. That the defendant, and all persons claiming under him, be foreclosed of all interest, liens, and equity of redemption in said premises; and for other and further relief, with costs.</p> <p>The defendant in his answer claimed, among other things— 1st, That he be subrogated to the rights of the plaintiff in the premises, on paying him the amount of his mortgage, and that the plaintiff should convey the premises to him; or, 2d, That the plaintiff convey the premises to him on being paid the $1500 he gave therefor, with interest; or, 3d, That the plaintiff pay him the amount of his judgment against Bixby, the mortgagor, with the sheriff’s fees on the execution issued thereon, and also the costs of the action.</p>

<p>Appeal from a judgment.</p>

Order to show cause cause why an order for defendant’ s examination should not be vacated.

Motion to dissolve injunction. This was an action in the nature of a bill of interpleader. The plaintiff, in the year 1856, leased of defendant Wright, who was the father-in-law of the defendant Youle, premises in the city of New York, for the term of one year. Defendant Youle, as the agent of defendant Wright, collected the rent of the premises. Seaman continued to occupy the premises from that time until the present without any new lease or agreement.

One Nathaniel Brown, being indebted to Calvin W. How in 1845, deposited with him, as collateral security for the payment of two notes at twelve months, nineteen certificates of the Illinois and Michigan Canal Company, and one certificate of State indebtedness, then valued by Brown and How at thirty-five cents per dollar. At the maturity of the notes in 1846, Brown deposited, as further collateral security, two other certificates of a different character.

Order to show cause why an order should not be vacated. Elizabeth A. Cockey and others brought this action against Frederick FT. Hurd; and after issue joined, defendant moved for leave to serve an amended and supplemental answer. Pending the motion, plaintiff obtained an order under section 401 . of the Code of Procedure (subd. 7), appointing a referee to take the affidavit or deposition of the defendant, to be used in opposition to such motion.

<p>Appeal from an order granting an application of the comptroller, to open a judgment against the city.</p> <p>The facts are stated in the opinion.</p>

Motion to confirm referee’s report. This was an action brought against several defendants, to obtain a partition of certain premises in the city of New York. None of the defendants having answered, the action was referred to a referee. It appeared that the defendant, Mrs. Ryker, who was one of the owners, had been in possession of a portion of the premises; and other portions had been rented to other tenants.

Exceptions to nonsuit. This action was brought by the plaintiff, as the assignee of one Charles Schurig, to recover the sum of one hundred and seventy-three dollars, paid by Schurig to the plaintiff, as surety for the payment of rent by the Brooklyn Turn Verein. The Turn Verein was an unincorporated association, of which Schurig and the defendants, together with others, were members.

Application to dissolve stay of proceedings. This was an appeal to the general term, from an order made at special term confirming the report of the commissioners in the matter of opening Seventy-sixth-street from Eighth Avenue to the Hudson river. The parties appellant were property holders and owners adjacent to the proposed opening, and who were liable to assessment therefor.

<p>Motion for appointment of commissioners of appraisal under general railroad act.</p>

This was an action brought by the plaintiff against the sheriff, for the escape of John D. Williamson, who had been arrested upon execution against his person, and was confined within the liberties of the jail, having given the usual bond to such sheriff. The action was tried before Mr. Justice Hoffman, a jury being waived.

Whitelegge in the New York superior court, to recover the possession of personal property. The allegations of the complaint were as follows: “ The above-named plaintiff, for a complaint in this action, alleges that the above-named defendant has become possessed of and wrongfully detains from this plaintiff, the. following property, that is to say: one rosewood Ernest Gabler piano, Ho. 6604 (Ernest Gabler, maker), of the value of four hundred dollars.

The action was brought on several promissory notes made by the defendant, payable to John Buckingham, executor, etc., of J. M. L. Scovill. These notes were indorsed by John Buckingham as executor.

Barnet Bildersee and others sued Joseph Aden and others, in the supreme court, on an undertaking which had been given by the defendants under section 341 of the Code, to procure the release of goods levied on under an attachment issued as a provisional remedy under the Code of Procedure, against the property of one Mrs. Boxius, in a former suit. This attachment had, subsequent to the giving of the undertaking, been vacated by Mrs. Boxius, on counter affidavits.

The action was brought by plaintiff to recover damages for injuries alleged to have been sustained by son of plaintiff by being nm over on 17th of July, 1858, by one of defendants’ stages. The answer denied every allegation in the complaint relating to the injury, and averred that if it happened it was through the negligence of the plaintiff’s son.

<p>Motion to dissolve an injunction.</p> <p>The facts are stated in the opinion.</p>

Appeals from an order vacating a judgment, and from an order of reference to ascertain the amount to he paid the judgment-creditor out of a fund in court. The defendant Blake was a party defendant in two actions of foreclosure.

This was an action against defendants, Higgins & Farrell, as indorsers of a promissory note. Madden & Stewart, the makers, having failed in business, proposed to their creditors a composition, by which the creditors were to accept the debtor’s notes for sixty-two and one half cents on a dollar, and were to look to the rents of certain property for the residue of their demands.

<p>Demurrer to answer.</p>

Motion to continue an injunction. The action wag brought by Julien Crevier, Jr., upon facts which are stated in the opinion.

Motion to set aside judgment. This action was commenced by the service of a summons and complaint on all of the deféndants on the 19th of February, 1861, and was brought to compel' the defendants, Susan and Michael, to execute a mortgage on certain premises in Queens county, which was the place of trial mentioned in the complaint.

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

Motion to continue injunction. This action was brought by Harry Wall against Stephen T. Gordon and others, upon facts which are stated in the opinion.

<p>Application to bring on an appeal out of its place on the calendar.</p> <p>The facts are stated in the opinion.</p>

William Kern and Conrad Homel sued J. Rachow, in the superior court. The action was to recover the value of wood mouldings sold by the plaintiff to the defendant, between March 1, 187’0, and January 1, 1871, and for which defendant gave plaintiff his note, dated January 18, 1871, payable three months aftel date. An order of arrest was granted on the ground that the defendant had disposed of his property with intent to defraud his creditors.

<p>Pleading.—Amendment oe Course.—Setting aside Judgment.</p> <p>The plaintiff upon whom an amended answer is served is not at liberty to disregard it, merely because he deems it inconsistent with the original answer, or considers that it sets up a new defence.</p> <p>A denial of the full amount claimed, and admission of a certain amount to be due, and a tender of that amount, all properly go to constitute one defence.</p> <p>Where in an original answer there is no express admission of a certain fact, but only an implied admission arising from silence, inserting the omitted denial by the service of an amended answer is not necessarily inconsistent.</p> <p>Where the plaintiff brought suit in the Supreme Court on a demand of but sixty-four dollars and interest, and defendant answered, admitting and paying into court a sum which was seven cents less than the amount claimed; and the plaintiff disregarded the answer and irregularly obtained an order for judgment for the amount claimed,—Eeld, that the order for judgment should not be permitted to stand, but should be set aside with costs.</p>

Ann W. Townsend, as administratrix of Thomas Townsend, deceased, sued Platt C. Ingersoll in the supreme court, in 1870, on a promissory note made by defendant to plaintiff ’ s intestate, in 1854. The defense was the statute of limitations, and that the note had been given as collateral security for the performance of an agreement which had been fulfilled.

<p>Appeal from an order of arrest.</p> <p>The facts appear in the opinion.</p>

<p>Discovery and Inspection.—Appeal.</p> <p>An order (Code, § 388) granting an inspection or copy of books, papers, and documents relating to the merits of the suit, rests in the discretion of the judge; and the court will not, on appeal, review the question whether, under all the .circumstances, the case was a proper one for the exercise of the power.</p> <p>It is entirely in the discretion of a court to hear a renewal of a motion or not. They can, as they may deem advisable, hear it on precisely the same papers; and their discretion , in this respect cannot be reviewed by an appeal from the order.</p>

This was an action brought for the partition of lands. One of the defendants, Josephine A. Demphill, was an infant, and resided in California.

This action was brought by Samuel D. and Elbridge S. Hovey, plaintiffs and respondents, against The Rubber Tip Pencil Company, defendants and appellants, and now came before the court on an appeal from an order denying motion to confirm the report of the referee, appointed to ascertain damages sustained by defendant, by reason of the injunction.

<p>Costs of Attachment.*</p> <p>On an attachment under the Code, if the attached property is not sold, the sheriff is not entitled, as matter of right, to poundage.</p> <p>He cannot tax in such case, as matter of right, more than eighty-two cents.</p> <p>Five dollars for levying, and two dollars per day for keeper's fees, is ample reasonable compensation for the sheriff's services, in those respects, in executing an attachment.</p> <p>So held, where the property attached was personal, and nothing appeared showing that the sheriff was put to any trouble or expense, further than sending a subaltern to the store to take and remain in charge; and it did not appear that there was any difficulty in finding or getting possession of the property.</p>

<p>Municipal Corporation.—Power to impose License-Fees. .</p> <p>If the Common Council enter into a specific agreement with a company, prescribing the regulations to which the latter shall be subject, requiring no further license, and reserving no right to require one, they are excluded by their contract from afterwards enacting that a license shall be a condition to entitle them to run their cars. Their contract is nothing more or less than a license.</p> <p>The Common Council of the city of New York entered into an agreement authorizing defendants’ assignors to construct a railroad and run cars in certain streets of the city. The agreement recited a resolution of the Common Council, requiring the parties, before the agreement should take effect, to bind themselves to perform its stipulations, and also “ all such other regulations or ordinances as may be passed by the Common Council relating to the said railroad."</p> <p>Held, that this reserved to the Common Council the power of regulating the mode of running the road for public safety and convenience, but it did not reserve to them the right to require any license-fee for running cars.</p>

<p>Motion to continue temporary injunction.</p> <p>James Bach, a stockholder in the Pacific Mail Steamship Company, brought this action against the company and its officers, for an injunction, upon grounds stated in the opinion.</p>

Two actions were brought against the defendant by different plaintiffs at about the same time.. Each plaintiff on the same day obtained an order in his action, granting an attachment under the provisions of the Code of Procedure against the property of the defendant. The attachment issued in the suit of the plaintiff Yale was delivered to a deputy-sheriff in the evening, and on the same evening was levied by him on defendant’s property.

Motion to set aside execution. William J. Mann sued the New York Central & Hudson River Railroad Company, in the supreme court, to recover a large number of penalties against the defendant, for demanding and receiving illegal fare for riding on its cars between Buffalo and Tonawanda, and recovered judgment for one thousand nine hundred and four dollars and fifty-nine cents for penalties and illegal fare, and one hundred and twenty dollars and thirty-six cents costs.

Motion to discharge from imprisonment. This was a motion made to discharge the defendant, Erastus Davison, who was in confinement in jail, on a final commitment issued on a final decree in a suit in equity, wherein this court ordered a certain lot, and house thereon, situated in the city of Mew York, to be conveyed by the defendant to the plaintiffs.

Motion to have execution returned satisfied. Daniel E. Dole sued the New York Central & Hudson River Railroad Company in the Buffalo superior court; and about the-same time twenty-five other similar actions were instituted, to recover several penalties of fifty dollars each for alleged violations of the “Act to prevent extortions by railroad companies” {Laws of 1857, ch. 185), and also to recover the excess of fares paid by the plaintiffs.

<p>Motion to set aside judgment for irregularity.</p> <p>The facts are stated in the opinion.</p>

James Rowe sued Salmon S. Stevens, in the New York superior court, to recover the usual broker’s commission for services rendered by plaintiff to defendant, in finding a purchaser for fifteen lots of land owned by defendant.

The action was brought for wrongfully taking and converting property. The plaintiff claimed to own the same as assignee of Frederick Weichel, by virtue of an assignment dated the 14th of November, 1859, alleged to have been made for the benefit of creditors. The defendant was the sheriff of the county of Eings.

<p>FlXTUBES.-SUMMARY PROCEEDINGS.-MEASURE OF DAMAGES. CHARGE."</p> <p>A brick chimney which was sunk three feet into the ground for a foundation, and pierced the roof, and could not be removed without being taken down, together with machinery, which were erected and put into the building by the tenant for the purpose of trade, are not fixtures, but may be removed by him on being dispossessed for non-payment of rent.</p> <p>Where a tenant is dispossessed for non-payment of rent by an officer, who, by the directions of the defendant, prevents him from removing his movable property, this is a conversion of such property on the part of the defendant.</p> <p>In an action for the conversion of such property under such circumstances, the measure of damages is the value of the property for the purpose of removal; that is, in the case of the chimney, which cannot be removed without destruction, the value of the material, subject to the obligation to remove it.</p> <p>Though the value of the chimney as it stood may be proper evidence in such case as well as the value of the material, a charge that the jury had a right to consider the cost of the chimney and its value for the purposes for which it was used at the time, and also its value to be removed, is erroneous.</p>

Application by Samuel B. Stevens, to have an election of six directors in the Schoharie Yalley Railroad Company set aside. The facts are stated in the opinion.

Action to oust defendant from the office of superintendent of the poor. This action was brought by the People on the relation of Henry A. Furman (the relator being also joined as co-plaintiff), against Harrison Olute, to oust the defendant from the office of superintendent of the poor of the county of Schenectady, and to install the relator in his place.

Motion to vacate a judgment entered by confession. One Silas H. Marks had obtained from the defendant a judgment upon confession, without action, for $8,345, to secure himself against contingent liabilities as the indorser of notes made by Reynolds, amounting to $4,450; and “ also, as was set forth in the statement authorizing the judgment, for the purpose of securing the said Silas Marks, as trustee, in behalf of John Yan Horn and George E. Keep, against contingent…

Motion to continue an injunction. John Gr. Burch, and nine others, members of the common council of the city of Albany, brought an action against Thomas Cavanaugh and eight others, three of whom were the city marshal and his assistants, and the others were the remaining members of the board of common council.

Exceptions heard in the first instance at general term. John Jay Philbrick sued Henry C. Dallett and others, in the New York superior court, upon a draft of ten thousand dollars, drawn by Requelme & Co., of Havana, upon and accepted by the defendants, composing the firm of Dallett & Son, at Philadelphia, to the order of the plaintiff, and dated February 26,1869.

This action was commenced on the 28th day of January, 1858, to recover the amount of a-promissory note for $700, made by Josiah Wendell, to the order of and indorsed by Barton B. Wood. The defendant Wendell appeared, and by his answer alleged that the note in controversy was void on account of usury. The defendant Wood made no appearance, and judgment was taken against him by default.

Hearing upon exceptions to referee’s report. F. N. Bangs, for the assignee in bankruptcy ; That the receiver’s taking possession was a legal process, cited 7 Blatchf., 262; Re Binninger & Clark, 6 N. B. R., 43; Re Merchants’ Ins. Co., Platt v. Archer, MSS.

<p>Affidavit to obtain Arrest.</p> <p>Requisites of an affidavit to obtain the arrest of the defendant in an action for criminal conversation with the plaintiffs wife.</p>

execution against the person. This action was brought to recover a balance alleged to be due from the defendant for moneys collected by him while in plaintiff’s employment. The defence was, that the demand, if any existed, which was denied, had been settled by the defendant’s giving a bond and mortgage upon real property in Brooklyn. The allegations in the complaint amounted to an averment that the action was brought to recover for money received in a fiduciary capacity.

Motion to set aside satisfaction of judgment. This action was brought by John E. Wade against H. D. Orton. The facts are stated in the opinion.

The defendants were commissioners of highways of the town of Hebron, and this proceeding was to compel them to open a road which had been laid out by referees on appeal from their decision. The objections appear in the opinion of the court.

Motion to strike out part of an answer. This action was brought against two defendants for malicious prosecution and false imprisonment. The complaint alleged that one of the defendants was in the employ of the other, in business in the city of New York.

The action was brought to recover thirty-five hundred dollars, a quarter’s rent, due November 1, 1869, of the premises, with the buildings thereon, known as No. 475 Broadway, running through to Mercer-street, under a lease of the premises made by the plaintiffs, the owners, to the defendants, dated January 15, 1869, for five years from May 1, 1869, at the annual rent of fourteen thousand dollars, payable quarterly.

<p>Debtor and Creditor.—Surplus Moneys.—Costs.</p> <p>Where surplus moneys arise upon the foreclosure of several mortgages, and they are claimed by judgment-creditors having the first liens upon both of two such funds, by a mortgage-creditor having a lien on only one fund, and that lien subsequent to such judgment-creditors, and by also other judgment-creditors having liens upon both funds, but their liens being subsequent both to the first-mentioned judgment-creditors and to the mortgage-creditor,—the judgments prior to the mortgage are to be paid out of the fund not subject to the mortgage; if that fund is not sufficient to pay them, the balance is to be paid prior to the mortgage, out of the fund on which the mortgage is a lien; the mortgage is next entitled to payment out of the surplus funds on which such mortgage was a lien; and the subsequent judgment-creditors are entitled to payment only after the payment of the prior judgment-creditors and the mortgage-creditors.</p> <p>The fact that the holder of such mortgage took it by assignment after the recovery of the subsequent judgments, does not affect the question of priority.</p> <p>Where a judgment was recovered upon the check of A., made for the accommodation of B., who indorsed it, and the judgment was paid by B.,—Held, that it could form no valid security in the hands of B., or any one representing him; and the fact that A. had received money to be applied to the payment of the check, but neglected to apply it, could not be made available to give such judgment validity, and thus sustain its priority over a subsequent judgment which remained unpaid. Neither the judgment-creditor holding such judgment, nor subsequent judgment-creditors, are affected by such a misapplication of the money.</p> <p>Allowances in addition to the taxable costs, under the provisions of the Code, cannot be made upon an order disposing of surplus funds arising on foreclosure of a mortgage; but the court has authority to allow to the parties a suitable compensation for costs and disbursements, to be paid out of the funds.</p>

Motion to dissolve injunction. John A. Yan Yeghten brought this action against Gardner Howland and others, and obtained a preliminary injunction, upon facts stated in the opinion, and defendants now moved to dissolve it.

In this action the defendant interposed, as a bar, a former judgment between the same parties. It appearing that snch judgment was simply a dismissal of the complaint in the former action, the court excluded it, and the plaintiff having recovered, the defendant appealed.

<p>Action for Penalty. —Form of Summons.—Pleading in Penal Actions.— Remedy for Irregularity.</p> <p>The summons and complaint in an action to "recover a statute penalty-should not be set aside merely because the summons is framed under subdivision 2 of section 129 of the Code of Procedure, and gives notice of an intention to apply to the court for relief, instead of to the clerk for judgment under subdivision 1.</p> <p>It seems, that the provisions of 2 Rev. Stat., 480, § 1;—authorizing a short mode of pleading in penal actions, by referring simply to the statute on which the action is founded,—is repealed by the Code of Procedure, which requires the facts constituting every cause of action to be alleged.</p> <p>If an action for a statute penalty can. under the Code, be deemed an action on contract, the proper way of objecting to the use, in such an action, of a summons “for relief,” instead of a summons “on contract,” is not by setting aside the summons or complaint, but by an application for relief after judgment, if the judgment obtained be one to which plaintiff is not entitled.</p>

<p>Receiver.—Supplementary Proceedings.—Counter-claim:.— Appeal.</p> <p>A third person indebted to, or- having property of, a debtor of whose property a receiver is appointed with such debtor’s consent, in supplementary proceedings, cannot, in an action brought by such receiver to reach the debtor’s property"in his hands, avail himself of any irregularities in the proceedings for the appointment of the receiver, which do not affect the jurisdiction of the court or officer who made the appointment.</p> <p>Supplementary proceedings are not void merely because the execution was returned without waiting for sixty days to expire after it was issued. Where there is no collusion or fraud shown, and no intent proven on the part of "the plaintiff or his attorney to prevent a levy on the property of the debtor, the sheriff need not keep an execution for sixty days.</p> <p>The objection that the execution was improperly returned before the sixty days had expired, cannot be raised collaterally. It can only be available on a direct motion to set aside the return to the execution. If the debtor does not make the objection himself, no other person can take advantage of it.</p> <p>In an action by a receiver to reach things in action of the debtor held by the defendant, the answer denied the plaintiff’s right thereto, because there were moneys due the defendant for which he held such assets as security. Held, that this did not constitute a counter-claim ; and the fact that the plaintiff did not reply to the answer, did not entitle the defendant to the allowance of the claims against the debtor which he had set up in the answer.</p> <p>If, on a reference in such a case, the referee determines against the defendant’s claims, the defendant must except to the report, if, upon the appeal, he would have a review of the errors of the referee in this respect.</p>

<p>Demurrer to complaint.</p> <p>This action was brought by John A. Poster, as receiver, against John Townshend, JohnWythe and others.</p>

<p>Mechanics’ Lien.</p> <p>Under the Mechanics’ lien Law of the city of Hew York, the right of lien extends to all such materials as ordinarily enter into, or are used in, the construction of buildings, and which are within the express or implied terms of the building contract made between the owner and contractor.</p> <p>Where the contract imposed upon the builder the duty of removing rock from the surface of the land, preparatory to laying the foundation-walls,—Held, that powder and fuses furnished, being necessary for the purpose of blasting the rock, and enabling the contractor to construct the contemplated building, must be classed as materials, within the meaning of the lien law.</p>

This action was brought by the Shaler & Hall Quarry Company, to enforce the liability of the defendants, George Bliss and Charles Abernethy, as trustees of the Hudson River Stone-dressing Company, a corporation organized under the general manufacturing law of the State of New York, for acceptances, by the latter company, of the plaintiff’s drafts, dated respectively on the 20th and 27th days of April, 1854, for the respective sums of $832.75 and $1,209.40, both payable to…

In 1855 the plaintiffs recovered judgment a'gainst the defendant for about $250. In 1857 the defendant procured a discharge from his debts, under the two-thirds act. Notwithstanding such discharge, the plaintiffs, on the 13th of January, 1860, caused an execution to be issued on the judgment, directed to the sheriff of Kings county, and the same was levied on the defendant’s property acquired since his discharge.

Andrew W. Green sued the New York Central Railroad, in the New York common pleas, to recover against the defendants, as common carriers, for the loss of plaintiff’s baggage while he was a passenger on defendant’ s road, which the complaint alleged extended from little Falls to New York city.

Motion to compel purchaser, on foreclosure and sale of leasehold premises, to take the deed and pay the balance of the purchase-money, or submit to a resale at his risk and for his account. The facts appear in the opinion.

<p>Motion to vacate an order of arrest.</p> <p>6</p> <p>This was an action against the drawer of a bill of exchange which was payable to order of a third party. The plaintiffs obtained an order for defendant’s arrest, upon affidavits alleging that the defendant, the drawer, had falsely represented that one Huse had authority from the payee to indorse the same, and*''that the plaintiffs had been thereby induced to discount the bill so indorsed by Huse. This order the defendant now moved to vacate.</p>

Habeas corpus. The prisoner had been convicted at the Court of Special Sessions', in the city of Hew York, in June, 1860, of stealing a purse containing $12.50 from the person of Margaret Shay, and was sentenced to six months’ imprisonment in the penitentiary.

Motion to set aside a judgment. In this action defendant obtained orders staying proceedings, under circumstances which are stated in the opinion. The plaintiff having entered judgment, notwithstanding the stay, defendant now moved to set aside the judgment as irregular.