Volume 12 — Daly's New York Common Pleas Reports

<p>To sustain proceedings by the Receiver of Taxes of the city of New York to enforce payment of a tax upon personal property by punishment as for contempt, he must show that there were no goods or chattels in.the possession of the person upon whom the tax was imposed which might have been levied upon and sold under the warrant issued for the tax. A return by the marshal that he found “no stock of goods” on which to levy, is not conclusive on this point.</p>

The action was brought by Harvey S. Almy and George . W. Almy, copartners constituting the firm of Almy & Co., joined with Peter Bowe, sheriff of the city and county of New York, as plaintiffs, pursuant to section 677 of the Code of Civil Procedure, to recover from H. K. & F. B. Thurber & Co. property in their possession attached by the sheriff in an action by his'co-plaintiffs against John Gomard & Co., of Cura go a. The attachment against the latter as non- residents was…

At some date in or prior to August, 1878, defendant employed Harnett, a real estate broker, to procure a loan of 135,000 for him at six per cent, interest per annum to be secured upon certain real estate in the city of New York. In that month Earle, a clerk for Harnett, applied to plaintiff’s assignor, George H. Burling, to obtain the loan.

Defendants in this action were trustees of the estate of Samuel Wood, deceased, and as such were the owners of the Pavilion Hotel, at Woodsburg, L. I. Plaintiff was a house painter and frescoer, &c., doing business in this city, and for certain work done upon said hotel by him this action is brought.

The action was brought to foreclose a mechanic’s lien. The complaint alleged the furnishing of materials and the filing of the lien. The answer put in issue both of these allegations.

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

<p>In an action for the malicious prosecution of a former action against plaintiff, in which he was arrested upon an order of arrest procured by defendant, neither the fact that such previous action was dismissed for want of prosecution, nor the fact that the order of arrest was vacated, is, of itself, sufficient evidence of want of probable cause. Where the former action was itself an action for malicious prosecution of defendant by plaintiff upon a criminal charge, and on the trial of this action the affidavits upon which the order of arrest in such former action was vacated, being admitted in, evidence without objection, tended to show that the criminal charge against defendant, upon which he had been arrested, and which was alleged by him to have been made by plaintiff, was in fact made by another person, but the testimony of witnesses on behalf of defendant showed that he had every reason to believe that the charge was made by plaintiff: Held, that the jury were fully justified in finding a verdict for defendant; for the charge made, whether it be the foundation of a criminal prosecution or of a civil action, must be shown to have been wilfully false to establish that want of probable cause, the inference and natural conclusion from which is that the criminal prosecution or civil suit was maliciously brought.</p> <p>At the close of the trial of the action, plaintiff requested the judge to instruct the jury that if defendant had been guilty of any fraud or wrong by giving bogus bail or procuring the order of arrest, it would be an element for the jury to consider as to whether there was malice; and the judge declined to charge upon that point any further than he had already charged. Held, that this was not erroneous, since under the instructions already given, the jury were entitled to consider that circumstance, together with the other evidence, in determining whether the defendant had brought the action knowing that he had no ground of complaint against the plaintiff; and a finding that the defendant in bringing the action was actuated by malice, would not be sufficient to entitle the plaintiff to recover, in the absence of affirmative evidence establishing the want of probable cause.</p> <p>Where, upon an objection to a question to defendant while under cross-examination as a witness, it appeared that his answer might tend to expose him to a charge of keeping a house of ill fame, an offense punishable by imprisonment in the common jail: Held, that the question was properly excluded; although it did not appear whether the objection was made by defendant himself or by his counsel, or whether it was his objection as defendant or as witness.</p>

<p>An agreement indorsed upon the back of a policy of life insurance, that “In case the holder of this policy wishes to cancel it after three annual premiums have been paid, a fair proportion of the premiums will be returned, if applied for before the policy has expired,” is not void for uncertainty; in an action thereon by the insured, it may be shown by extrinsic evidence what would be a fair proportion of the premiums to be returned; and for that purpose expert testimony showing the surrender value is competent.</p> <p>The insured is not estopped from urging such claim by continuing to make " payments of premiums pending the action.</p>

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

The complaint in this action alleged that the defendants, Robert Simpson and William Simpson, were co-partners in business as pawnbrokers in the city of New York; that on the 11th day of April, 1878, the said firm received certain personal property belonging to the plaintiff as security for a usurious loan made by the firm to the plaintiff of the sum of two hundred and fifty dollars for twelve months with interest at the rate of twenty-five per cent, per annum; that at the…

Exceptions taken at a trial term of this court, ordered to be heard in the first instance at the General Term. Dr. Bailey, deceased, was a man of wealth, who resided and died in the city of New York, and deposited large sums of money in the New York Savings Bank to the credit of various accounts. Among other deposits on the 30th day of July, 1864, he deposited the sum of $400 to the credit of B. Bailey in trust for Ida Mabie, the plaintiff.

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

The plaintiff was a married woman, living with her husband in the city of New York. From her own savings she bought certain furniture, which she pláced in the rooms occupied by herself, and her husband, in which the husband had also some furniture.

The action was brought to recover damages for injuries to certain real estate of the plaintiff on West Third Street (formerly Amity Street); in the city of New York, from the erection, existence, and operation of the elevated railway of the defendant, upon that street, in front of plaintiff’s property. Upon trial before a referee, he reported in favor of the defendant, and judgment for defendant was entered upon his rejiort. From the judgment the plaintiff appealed.

<p>On the trial of an action against a city for injuries to plaintiff from a fall alleged to have been caused by slipping on ice npon the sidewalk of a public street of the city, evidence was given that snow had fallen two or three days before plaintiff was injured; that at the place where the accident occurred, water was discharged upon the sidewalk by a leader from the roof of a house, contrary to the city ordinances, and froze there; and that ice had thus formed at that place, during the winter, and for several days prior to the accident. Held, that this was sufficient for submission to the jury upon the question of the ice having been there long enough to charge the defendants with constructive notice.</p> <p>Held, further, that the city ordinance requiring that the water from such leaders, passing into the street, should be conducted under the sidewalk, was properly admitted in evidence.</p> <p>The existence of an obstruction long enough to give implied notice being sufficient to charge the city, no additional time can be allowed to the city for the owner of the adjoining premises to clean the walk; nor can the fact that such owner had theretofore promptly cleaned the walk be considered material.</p> <p>In addressing the jury at the close of a trial, counsel for plaintiff attempted to read from a reported case; upon objection being made, he closed the book, and then stated to the jury what had been decided in that case, which, he told them, was on “all fours” with the case on trial; and the court, npon a request from defendants’, counsel to direct him to desist from this mode of summing up, declined to do so. Held, that this was error, for which a judgment for plaintiff should be reversed.</p>

The defendant in this action was engaged in the erection of eight houses in the city of New York, and the plaintiff was employed by the defendant as a hod-carrier at said building on the 20th of July, 1881; and on the 22d of July, the foreman of the defendant, with the assistance of one William Lane, another hod-carrier, made a ladder of certain dimensions, which was to be used by the hod-carriers in going up from the parlor story to the story above.

The corporation of the city of New York granted to one La Marche, a licensed plumber, a permit to make an excavation in Thirty-first Street extending from the premises of James Carroll to the sewer in the roadway, in order to make repairs to the pipe connecting said premises with the sewer. The permit was issued March 20th, 1880. Work was commenced on the 22d or 23d, and completed about the 26th (Friday).

<p>Appeal from a judgment of the General Term of the Marine Court of the city of New York, reversing a judgment of that court entered upon a dismissal of the complaint at the trial.</p> <p>The action was brought on an undertaking given by the defendants, upon the issuing of an attachment. The answer of the defendant Sabin admits the making, “ and as to all the other allegations, this defendant denies the same either upon his own knowledge, or as not having any knowledge or information thereof sufficient to form a belief in respect to the same.” The plaintiffs counsel at the trial moved for judgment on the pleadings upon the ground that the answer contained no denial of any material allegations of the complaint, and did not allege any affirmative defense. This motion was denied and exception taken. The vacatur of the attachment relied on by the plaintiff, is by an order of the General Term of the Supreme Court, entered upon appeal from an order of the Special Term denying a motion to vacate. The learned judge on the trial in the Mai’ine Court dismissed the complaint, by an order granted after the jury had found a verdict for the plaintiff, decision of the motion to dismiss having been reserved.</p> <p>The plaintiffs appealed from the judgment to the General Term of the Marine Court, where it was reversed, and judgment ordered upon the verdict. From this decision the defendant Sabin appealed to this court.</p>

<p>Upon an application by plaintiffs in an action of ejectment for an order requiring the defendant to furnish a bill of particulars of matters averred in his answer, being allegations of the practical location of boundary lines so as to exclude the lands for which the action was brought from other lands of plaintiffs’ predecessors in title, it appeared that plaintiffs’ counsel was fully informed of the matters of defense, having been counsel in previous actions where the questions and facts presented by the defense had been the subject of direct investigation; and it appeared from his own affidavit upon which the application was made that the object of the motion was not to obtain information as to the lines referred to in the answer as having been practically located, but to confine the defendant to some one or other of several such lines, and to compel him to declare by whom he would claim on the trial that such line had been located. Held, that, under the circumstances, defendant should not be compelled to furnish the particulars applied for.</p>

The action was brought for an accounting between partners. The defendants answered separately, admitting the partnership agreement and business under it. The defendant Rothschild alleged a release under seal, and the other defendant payment of all sums due the plaintiff. The plaintiff moved for a reference, and his motion was granted. From the order of reference the defendants appealed.

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

<p>Appeal from an order of the General.Term of the Marine Court of the city of New York, affirming an order of that court at Special Term opening a judgment entered against the defendant b default, and allowing him to answer upon terms.</p> <p>The order of the Special Term was entered May 15th, 1882, and the appeal to the General Term was taken May 22d, 1882. An appeal to this court was not permitted by the law in force before the statute passed July 1st, 1882 (L. 1882, c. 399, p. 571), which statute also declared “ nor shall any amendment made by this act invalidate or impair the effect of any proceeding heretofore taken ” (p. 573). An order of the General Term of the Marine Court affirming the order appealed from was entered November 8th, 1882. From this order plaintiff appealed to this court.</p>

<p>Where leave to prosecute an action as a poor person is granted, an attorney who applies for and obtains such leave is bound to act for the plaintiff without compensation, beyond the costs that may be recovered, and is not entitled to retain any portion of the recovery, notwithstanding an agreement with the plaintiff therefor, even though the costs of the action are set off against the costs recovered by defendant against his client in a former action for the same cause.</p>

The facts are stated in the opinion. This action was brought under authority of an order granted by the Surrogate of Westchester county, giving the plaintiff as executrix of the last will and testament of Andrew Hood, deceased, leave to maintain an action on her own behalf and on behalf of all other persons interested or claiming to be interested in the estate, upon the bond given by Frederick Hood, a non-resident executor named in said last will and testament.

<p>In an action between copartners for a dissolution of the copartnership and an accounting, where the principal issue was as to the respective shares of the parties, under the copartnership agreement, in the profits of the business, it appeared that the agreement was oral, and plaintiff and defendant, the sole witnesses to it, contradicted each other. Plaintiff, however, was corroborated by written admissions made by defendant, in a letter from him to plaintiff, that his account had been largely overdrawn, which, while plainly consistent with plaintiff’s testimony, were wholly irreconcilable with the testimony and claims of defendant; and it further appeared that defendant had, without plaintiff’s knowledge and without authority, issued notes in the firm name to a large amount which he had used for his own private purposes, to secure an antecedent individual debt, and in stock speculations and betting. Held, that defendant’s testimony ought to be rejected as unworthy of belief, and a judgment entered upon the report of a referee in his favor should be reversed upon appeal.</p>

<p>Appeal from a judgment of the General Term of the Marine Court of the city of New York, affirming a judgment of that court entered upon a dismissal of the complaint.</p> <p>On the 8th day of February the plaintiff shipped certain tanks of glycerine upon one of the defendants’ steamships at Hamburg and received a bill of lading acknowledging the receipt of the goods in good order and well conditioned and contracting to deliver the goods in like good order and condition at Hoboken. The bill of lading provided that the carrier should not be answerable for leakage, breakage, corruption, rust or torn wrappers.</p> <p>Upon arrival of the tanks in the vessel one of the tanks was found empty, the rim being broken and the tank cut in two places and with a number of indentations where cases had been shoved against it.</p> <p>Plaintiffs thereupon commenced this action in the Marine Court to recover damages because of the loss of the glycerine, and upon the trial of the action, the foregoing facts being shown, the court dismissed the complaint upon the ground that no negligence upon the part of the carrier had been shown. From the judgment thereupon entered plaintiffs appealed to the General Term of the Marine Court, where such judgment was affirmed; and from such judgment of affirmance plaintiffs appealed to this court.</p>

The action was brought to recover damages for alleged fraud and conspiracy, by which defendants induced the plaintiffs’ testator, Christopher Miller, to purchase.for $13,600 a bond and mortgage for $15,000, which mortgage, upon said Miller’s attempting to foreclose the same, was held to be invalid, and upon which he recovered only the sum he had paid therefor, to wit, $13,600.

The complaint alleged that about the month of October, 1377, plaintiff was the owner and possessor of the sum of five hundred dollars on deposit at the Church of Alphonse in the city of New York, and that the said moneys did continue on deposit with the aforesaid institution until about the day of September, 1882; that about the last mentioned date defendants, without the knowledge and consent of plaintiff, did take and withdraw the said funds belonging to plaintiff from the…

<p>Appeal from an order of the General Term of the Marine Court of the city of New York affirming an order of that court granting a new trial, and from the judgment entered upon the order of affirmance.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of this court directing a clerk of a district court in the city of New York to pay to defendant costs paid to the clerk upon an appeal by defendant from a judgment of the district court.</p> <p>Plaintiffs recovered a judgment in the district court on January 5th, 1882, against defendant for $60, and $17.50 costs. Prior to January 20th, 1882, defendant appealed to the General Term of this court, serving notice of, appeal and giving the undertaking prescribed to stay execution. Defendant then paid to the clerk of the district court the costs and fee for a return. The judgment was reversed with costs. The appellant thereafter demanded the $17.50 costs, which had been paid to the clerk when the appeal was taken, and on default of payment moved in this court at chambers for an order directing the clerk to pay the money. On the motion it appeared that the clerk had paid the amount to plaintiffs’ attorney, January 28th, 1882. The court granted the motion; and from the order granting the motion the clerk appealed.</p>

<p>Appeal from a judgment of the Marine Court of the city of New York affirming a judgment of that court entered upon the verdict of a jury.</p> <p>The action was brought to recover rent reserved in a lease of one flat or floor of a building in the city of New York. The facts are stated in the opinion.</p>

■ Prior to April 14th, 1881, the New York Life Insurance Company had a mortgage upon certain premises owned by the defendant, and the plaintiff having become liable as indorser upon certain promissory notes of the defendant, the latter made mortgages to secure the plaintiff upon the same premises upon which the New York Life Insurance Company held such prior mortgage.

The action was brought to foreclose a mechanic’s lien upon certain buildings erected by plaintiff under a contract with defendant, the owner. The facts are stated in the opinion.

<p>Appeal from a judgment of the General Term of the Marine Court of the city of New York reversing a judgment of that court entered upon the verdict of a jury, and directing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>In an action brought by a widow against a life insurance company, the complaint alleged that plaintiff’s deceased husband had, before his marriage with her, obtained from defendant a policy of insurance upon his life, and that, after the marriage, he assigned the policy to her; that subsequently he and defendant, conspiring to cheat and defraud her of the benefit of the policy, allowed it to lapse and permitted the premium day to pass without the payment of the premium, for the purpose and with the intent to cancel the policy and to issue another to the husband for his own use and benefit; that the premium was not paid on the day when it was payable, and the policy was surrendered by him to defendant and was cancelled, but afterwards the premium was paid by him and defendant issued to him a new policy not payable to nor for the use or benefit of plaintiff. It did not appear from the complaint that the surrender and cancelling of the former policy was on or before the day upon which the premium on it was payable. Held, that no cause of action was disclosed, either upon the original policy or upon the ground that the new policy was a substitute for such original policy and as such belonged to plaintiff; and the complaint was properly dismissed.</p>

The action was brought upon two instruments in writing alleged in the complaint to be promissory notes made by the defendant payable to the order of the plaintiff.

<p>Defendant let out rooms in the upper part of a building to lodgers, whom he did not supply with meals; but he leased the basement of the building to another person who kept a restaurant there as an independent establishment, to which a doorway gave access from the lodging rooms. Held, that defendant was not an innkeeper, and therefore not entitled to a lien as such upon property of persons to whom he let rooms; and that, as the keeper of a lodging house, he was not entitled to such a lien, mere lodging house keepers having no lien upon the effects of lodgers either at common law or under the statutes of this state.</p>

<p>The acts of Congress of August 6th, 1861, and July 17th, 1862, confiscating property used for insurrectionary purposes and property of rebels, did not authorize the confiscation of property of a corporation.</p>

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

The facts are stated in the opinion. The accident was of a nature which could be easily foreseen by any one accustomed to the course of business in the city.

<p>Appeal from a judgment of this court entered upon the verdict of a jury directed by the court.</p> <p>The facts are stated in the opinion.</p>

Appeals from orders of this court entered upon motions to enforce payment of alimony under a judgment of separation from bed and board. ' Judgment was rendered in the action on March 17th, 1878, separating the parties from bed and board, and allowing, as alimony, to plaintiff, a yearly sum equal to one half the aggregate net incomes of the parties, to be diminished or increased annually, if necessary, in order to preserve the equality of income.

The facts are stated in the opinion. The contract on which this judgment was recovered was an agreement to pay $1,000 of the fees due plaintiff from Homer Cook, his client, in Chicago. This is clear and uncontradicted from the pleadings and from the evidence. Upon the evidence and the pleadings there can be no question that plaintiff’s recovery, if he is entitled to any, must be upon the promise to pay the debt due from Cook for legal services.

<p>Appeal from a judgment of this court entered upon an order directing judgment for plaintiff upon an answer as frivolous, as against one defendant, and severing the action and allowing it to proceed against the other defendants.</p> <p>The facts are stated in the opinion. See also the report of a previous decision in the same case, 10 Daly 466.</p>

jury and from an order denying a motion for a new trial. The plaintiff who was an attorney and counselor at law, had been the attorney for Chester Bushnell, who was one of the defendants in this action, in a former action brought by Bushnell against the other defendants in this action, which former action was settled by the parties, without making payment to the plaintiff herein of his compensation as the attorney for plaintiff in that action; whereupon he brought this suit…

The facts are stated in the opinions. . The question of contributory negligence was a question entirely for the jury, and the court will not affirm the judgment on this ground even if in their… Held: as matter of law, that such contributory negligence was shown as would prevent a recovery (Wilson v. Charleston, 8 Allen [Mass.] 137; Durkin v. Troy, 61 Barb. 437; Quincy v. Barker, 81 Ill. 300; 25 Amer. Rep. 278; Shaefler v. Sandusky, 33 Ohio 346; 31 Amer. Rep. 533).

<p>A lease for a term to commence at a future date, the rent to be payable monthly in advance during the term, was signed by both parties in duplicate and left with the agent of the lessor, to be delivered by him to the lessee when the first month’s rent should be paid. Afterward and before the date when the term was to commence, the lessee asked for the lease for the purpose' of showing it to his attorney, but was told by the agent that he could not have it until he paid the rent for the first month, which he refused to do. Held, that there had been no delivery of the lease, as there had been no acceptance by the lessee, and he was not bound by it.</p>

<p>Appeal from a judgment of the General Term of the Marine Court of the city of New York, affirming a judgment of that court entered upon the decision of the court upon a trial without a jury.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from an order of this court denying a motion to amend a judgment of divorce.</p> <p>■ The appeal was taken by plaintiff from an order of the Special Term, made April 15th, 1882, denying her motion to amend the judgment of divorce in this action, entered December 15th, 1877, by inserting therein a provision allowing alimony to plaintiff, such judgment making no provision on that point. It appeared from plaintiff’s motion papers that although she had demanded alimony in her complaint, yet no provision was made therefor in the judgment, because defendant requested such omission, promising, if she would waive such a provision, he would faithfully pay her moneys from time to time in a fair and reasonable amount, also that he would pay her one half of his wages every month as long as she needed it, and that plaintiff, relying upon such promise, consented to the entry of the judgment without any provision for alimony. The promise was denied by defendant.</p> <p>The relief which was applied for in Kamp v. Kamp (59 N. Y. 212), was relief which was forbidden by the statute (2 R. S. 146, § 45), which gave the court no power to award any allowance for the wife’s support beyond what the court should “ deem just, having regard to the circumstances of the parties respectively.” This, the Court of Appeals says, means their circumstances at the time of making the decree. The case of Erkenbrach v. Erkenbrach (N. Y. Daily Reg., May 29th, 1882), is very similar to Kamp v. Kamp in its material facts, and in that case also the plaintiff’s application was denied. Park v. Park (18 Hun 466), holds the same doctrine. And see Kerr v. Kerr (9 Daly 517). But in the case at bar plaintiff is not asking for relief based upon any change in defendant’s circumstances. She asks that the decree may be opened and that such a provision may be made for her support as the court shall deem just, regard being had to the circumstances of the defendant at the date of the decree.</p> <p>The objection by the defendant—that the court has no power to grant the plaintiff’s application, because, inasmuch as alimony was prayed for in the complaint and was not allowed in the decree, the. judgment of the court-was against her claim, and that she was not entitled to it—is not sound. “ The law presumes,” said Judge Allen in the Kamp case, “ that every question involved in the action was passed upon by the court.” But it is only a presumption. The exact length and breadth of a judgment may always be shown by aliunde proof, which does not contradict the record (Doty v. Brown, 4 N. Y. 71; Dunckel v. Wiles, 11 N. Y. 420; White v. Madison, 26 N. Y. 118; Kerr v. Hays, 35 N. Y. 337; Angel v. Hollister, 38 N. Y. 378; Pierce v. Tuttle, 58 N. Y. 650 ; Wilcox v. Lee, 1 Robt. 355; Briggs v. Wills, 12 Barb. 567 ; Stedman v. Patchin, 34 Barb. 221; Marcellus v. Countryman, 65 Barb. 201). Every court of record has plenary power, when not restrained by statute, over all suits entertained and all judgments pronounced by it (Code Civ. Pro. § 723; Hogan v. Hoyt, 37 N. Y. 300; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357 ; Pitt v. Davison, 12 Abb. Pr. 385; Hatch v. Central Nat. Bank, 78 N. Y. 487; McKelvey v. Lewis, 44 N. Y. Super. Ct. [12 Jones & S.] 561; Baldwin v. Mayor &c. of New York, 42 Barb. 549).</p> <p>The. motion is to amend the judgment, &e., and for further relief. Under such a notice the court may properly grant any relief within the case made by the petition ( Van Slyke v. Hyatt, 46 N. Y. 264).</p> <p>The court has not jurisdiction to grant the motion. The decree was final. It involved an adjudication upon the subject of alimony, which was distinctly prayed for in the complaint. From the moment when the decree was entered, jurisdiction of the action and the parties to the action ended, except with the qualification that if the form or entry of the order, as it appears of record, was a mistake or error and not really the judgment or decree which was made by the court, that mere form or entry could be corrected by the court for its own sake. There being no pretense of such mistake or error, and no pretense of fraud upon the court, it can never recall the case to life (Kamp v. Kamp, 59 N. Y. 212). To assert otherwise is contrary to the principle which gives value to “ a thing adjudged.”</p> <p>The order which is appealed from is in harmony with the authorities. See Kamp v. Kamp (59 N. Y. 212); Erkenbrach v. Erkenbrach (N. Y. Daily Reg. May 29th, 1882).</p>

Trial of an action to cancel a tax. The action was brought to cancel the tax for the years 1874 and 1875 on the lot, with the building thereon, now known as Ward Map No. 4Block 228, of the Twelfth Ward, in the city of New York. The property is shown on the following diagram : The lot in question, No. 4-|-, is made up of the rear portions of the three lots 1, 1-|-, and 2, which front on Second Avenue, No. 4£ fronting on One hundred and twelfth Street.

Trial of an action to recover from an assignee under a general assignment for the benefit of creditors, moneys alleged to have been held in trust by the assignors.

The action was brought upon two promissory notes made by defendant payable to plaintiff and delivered in settlement of an obligation of defendant’s then due, of which plaintiff claimed to be the holder.

In April, 1869, the plaintiff and defendant formed a partnership by an agreement under seal. Among other provisions was the following: “All losses happening to the said firm.....and all expenses of the business shall be borne by the said parties in equal proportions.” The business proved unprofitable and was wound up in December, 1869. The plaintiff, on or before June, 1870, paid and expended moneys for said firm in its business.

A decree of separation was granted in this action to plaintiff in August, 1869. The custody of the three children of the parties, (born respectively in 1863, 1865 and 1867), was awarded to plaintiff. No provision for alimony, nor for the support, education, or care of the children was made in the decree. This motion was made in March, 1879.

The action was brought to recover possession of one undivided half of premises conveyed by a quit claim deed dated May 5th, 1885,- executed and delivered to plaintiff, an attorney at law, by defendant Callan. Plaintiff under same date delivered to defendant Callan his agreement to render for said defendant all necessary and requisite legal services to secure him the title to the entire premises, and to save him from the payment of any costs and expenses.

The action was brought to recover damages for an alleged conversion of a policy of insurance upon the life of the husband of plaintiff, payable to plaintiff; the conversion alleged being the surrender and cancellation of the policy by an assignee from plaintiff and the life insurance company, both of whom were made defendants in the action. Other facts are stated in the opinion.

Exceptions taken at a trial term of this court, ordered, to be heard in the first instance at the General Term. The action was brought by plaintiff as assignee of the Sonoma Valley Wine and Brandy Company, by assignment dated May 15th, 1880, to recover $157.45, balance of account of sales and consignments to the defendants as co-partners under the firm name of George Hamlin & Co., to October 18th, 1878.

Thé order of reference was to ascertain the damages sustained by defendant by reason of an injunction granted in the action which was afterwards dissolved. The referee reported that defendant was entitled to damages for fees to his counsel for services incurred in and consequent upon removing the injunction.

The complaint alleged that the defendant, at the time mentioned, was the sheriff of the county of New York; that the plaintiffs, on or about the 6th day of March, 1882, were the owners of certain chattels, being the fixtures of a liquor store kept at No. 96 Monroe Street, in the city of New York; which goods were more particularly described, and enumerated in the chattel mortgages and schedules thereof, annexed, and to which plaintiffs prayed leave to refer as a part of the…

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

The action was brought to recover the price of certain ornamental trees, shrubs, &c., alleged to have been sold by plaintiff to defendant. Plaintiff’s claim was founded upon an order in writing for such trees, shrubs, &c., alleged by him to have been given by the wife of defendant, and to have been signed, b)r her direction, by defendant’s daughter. The alleged signature was near the middle of the list of articles contained in the order.

The action was brought to recover money which had been paid by plaintiff to defendant on a contract for the sale and conveyance by defendant to plaintiff of certain real property, the deed for which, when tendered, plaintiff refused to accept.

Cebtiobabi to review the action of the defendant, as Comptroller of the City of New York, in removing the relator from the office of Auditor of Accounts in the Finance Department of that city.

The action was brought to recover damages for an alleged wrongful discharge of plaintiff on May 18th, 1882, from employment claimed by him to have been for one year from March 20th, 1882. Defendant’s answer denied employment for a year. At the trial, the complaint was dismissed, and judgment for defendant was entered thereon. From the judgment plaintiff appealed.

The action was brought by plaintiff, as executrix, to recover the sum of $2,000, part of the purchase money of land sold by her testatrix to defendant, to secure the payment of which sum defendant had executed and delivered to the testatrix a mortgage of the property so purchased by him.

The action was brought by plaintiffs, copartners under the firm name of Strahlheim & Hertz, against Abraham Wallach and Edward Wallach, composing the firm of A. & E. Wallach, and Frederick Lewis, their assignee for benefit of creditors, and others, alleging in their complaint that' in July, 1883, at the City of Paris, France, they received from the said firm of A. & E. Wallach an order for a quantity of fairs to be manufactured and sold and delivered to A. & E. Wallach at…

The action was brought to recover damages for injuries to property of plaintiff from water leaking through the roof of the building No. 661 Broadwa)r, in the city of New York, the upper part of which building was occupied by plaintiff under a lease thereof from the defendants, which lease contained a covenant on their part “to put and keep the roof of said building and premises in good repair during the continuance of said lease.” The defendant George L. Kingsland alone…

Appeals from a judgment of the General Term of the Marine Court of the city of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial; and from an order of said General Term affirming an order of said Marine Court denying a motion for a re-taxation of costs.

The action was brought to recover commissions claimed by plaintiff as a broker on an exchange of real estate between the defendant and one Matthias B. Smith.

The action was brpught to recover from the defendant an indebtedness of the Self-Folding Tucker Company, upon an alleged individual liability for such debt as a trustee of that company. The company was incorporated under the general manufacturing act of February 17th, 1848 (L. 1848 c. 40), and the acts amendatory thereof.

<p>Appeal from a judgment of this court entered upon the report of a referee.</p> <p>The action was brought to recover damages for alleged breaches of agreement by defendants, as to which the referee, in an interlocutory report which was not excepted to by either party, found, in part, as follows :—</p> <p>“Early in 1875 the plaintiffs and defendants made an agreement to the following effect, viz.: that plaintiffs, who were engaged in the business of exporting agricultural tools and implements, should endeavor to work up a foreign trade in the lawn mowing machines manufactured by the defendants, and that in consideration of their exertions for that purpose, and of their giving the defendants’ machines a preference over all others, they, the defendants, should not sell any of their machines to other persons, either resident abroad or engaged at home in the export trade, except to a firm of Markt & Co., with whom they had already established a connection, and that in order to protect the plaintiffs in doing this business, the defendants would sell them their machines at prices lower (but it was not determined how much lower) than to Markt & Co.’’</p> <p>“Relying upon these agreements, the plaintiffs exerted themselves in various ways by personal efforts and advertisements, &e., to establish, and finally did establish, a considerable export trade in the defendants’ machines in England and elsewhere abroad.’’</p> <p>At the trial, plaintiffs introduced evidence tending to show that certain firms, who were exporters, had actually bought such lawn mowing machines of the defendants for export, and that they were all customers of plaintiffs. They further offered “to prove the ^profits that they, plaintiffs, were making on like mowers purchased from the defendant and sold by them to exporters in New York, at or about the times the said different sales were made by defendant to said firm.” This was objected to by defendants, and was ruled out by the referee, “ on the ground that, assuming the persons named to have, been exporters in the City of New York, the true measure of damages should be the difference, if any, between the actual sales made by the defendants to these respective persons and firms, and the price at which the defendants were selling similar lawn mowers at or about the same time to the plaintiffs.” To this ruling plaintiffs excepted.</p> <p>It further appeared from the record that, at a subsequent stage of the case, plaintiffs’ counsel stated, in reply to an inquiry of defendants’ counsel, that plaintiffs claimed that the evidence showed that, under the rules laid down by the referee for estimating damages, plaintiffs had sustained damages to the extent of $85, growing out of the sales to Markt & Co. by the defendants, in violation of their agreement; the said rule as laid down by the referee being that the plaintiffs were entitled to the difference between the prices of mowers to Markt & Co., and the prices of similar mowers sold at or about the same time by defendants to plaintiffs, when the prices to plaintiffs were higher than to Markt & Co., because plaintiffs were entitled to prices at least as low as to Markt & Co.: and the further sum of $360.74, growing out of defendants’ sale of lawn mowers to various alleged exporters, in violation of defendants’ agreement. Defendants’ counsel thereupon stated that while he claimed that the evidence, when all in, would show no violation by defendants of any of their agreements with plaintiffs, and no legal damage whatever resulting to plaintiffs from any of the alleged violations, nevertheless, to save further expense and delay in litigating questions involving so small an amount, he offered to consent to the referee's reporting that plaintiffs had sustained damage to the extent of $222.87, half the amount claimed, and that the same be deducted from the amount of defendants’ counterclaim, as thereafter established.</p> <p>The record further showed that “ plaintiffs’ counsel, upon . consideration, accepted defendants’ said offer,” reserving the right to, and then and there making and entering their exception to the rule of damages laid down by the referee in reference to the goods sold by defendants to Markt & Co.</p> <p>The record further showed that no further evidence was offered by either party on the subject of damages, and that the referee found and reported in accordance with said offer and acceptance that plaintiffs had sustained damages and were entitled to be credited on defendants’ counterclaim with $222.87.</p> <p>Defendants’ counterclaim was also established by consent of parties at $4,242.43, from which the referee deducted the damages agreed upon, $222.87, and ordered judgment in favor of defendants for the balance, $4,019.56, and costs. From this judgment plaintiffs appealed.</p>

The action was brought to recover for services rendered under a contract made by Salmi Morse, one of the defendants, with the plaintiff. The complaint alleged that the other defendants were secret co-partners of Morse, and that he acted by their authority in contracting with plaintiff.

The complaint alleged that defendant was a corporation engaged in operating a railroad in the Territory of New Mexico, and in so doing conducted the business of carriers of passengers for hire ; that one Louis Adolph Isaac, was a passenger upon defendant’s railroad; that the car in which he was riding was, without any fault or negligence on his part, and solely by reason of t.he gross negligence and wrongdoing of defendant, violently precipitated down an embankment, and he…

The facts are stated in the opinion. A decision upon a former appeal in the same case is reported in 9 Daly 371, where the previous proceedings are stated. Upon the new trial directed by that decision, a verdict for plaintiff was directed by the court; and from the judgment entered thereupon defendant appealed.

The action was brought to recover treble damages for alleged excessive fees received by the defendant as an official stenographer, for a copy of stenographic notes of the testimony in a cause in the court of Oyer and Terminer. At the trial, the jury found a verdict for defendant. From the judgment entered thereon, plaintiff appealed to the General Term of the City Court, which affirmed the judgment; and from this decision of the General Term plaintiff appealed to this court.

The facts are stated in the opinion. The decision of the judge at special term, referred to in the following opinion, is reported in 11 Daly 214.

for a new trial. On May 2d, 1881, about noon, the plaintiffs intestate, a bright boy twelve years old, with two companions, crossed the double tracks of the New York and Harlem Railroad used by the defendant, from the east to the west side. The point of crossing was near the end of One Hundred and Sixty-ninth Street, which is not open west of the track. The crossing was partially planked and provided with guard rails, and had been long used by wagons and pedestrians.

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

88 damages and costs, and from an order denying a motion for a new trial upon the judge’s minutes. The plaintiff, in February, 1882, was a member of the firm of E. Rosenwald & Bros., in the business of packers and dealers in leaf tobacco in the city of New York, which at that time packed and held the great bulk of the crop of certain leaf tobacco called “80 New York Big Flats,” of which the firm of N. Lachenbruch & Bro. held a packing of several hundred cases.

The facts are as follows: On August 31st, 1881, the defendants, by an instrument of that date, leased to the plaintiff certain articles of household furniture for seventeen and a half months at a reserved rent of $184.20, payable as follows: $30 in cash, receipt of which was acknowledged, and the balance, $154.20, in payments of $9 on the last day of each and every month thereafter during the term of the lease.

<p>Appeal from a judgment of this court entered upon the decision of a judge at a trial without a jury.</p> <p>The facts are stated in the opinion.</p>

The action was brought upon a policy of fire insurance in the sum of $5,000 issued October 3d, 1881, for one year from October 9th, 1881, upon a stock of goods destroyed by fire January 31st, 1882. At the trial, the jury found a Verdict for plaintiffs for the amount of the policy, with interest, being the sum of $5,358.53. From the judgment for plaintiffs entered upon this verdict, defendant appealed.

Trial upon demurrer to complaint. The action was b.rought to recover damages alleged to have been sustained by the issuing of a void attachment and levy thereunder by the sheriff, in an action in the Supreme Court by the defendants in this action as plaintiffs against the plaintiff in this action and others as defendants, to charge them withliabilityfor the debt of the McKillop & Sprague Company, of which it was claimed that such defendants were trustees.

The action was brought by Saulesbury L. Bradley to recover rent, under a lease by him of an apartment or suite of rooms in a building in the City of New York to defendant for the term of one year from the first day of October, 1881, at the yearly rent of $1,620, payable monthly in advance, the amount claimed being the sum of $135, becoming due on June 1st, 1882.

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

<p>In an action for rent under a lease, the answer of defendants, the lessees, set up as a counterclaim that defendants had, at the special instance and request of plaintiff, paid, laid out and expended certain moneys to " and for his use, which he promised to repay to them, but failed to do so. A bill of particulars of the counterclaim described the moneys paid as “cash paid in and about buildings mentioned in the complaint.” It appeared from the lease that the plaintiff had thereby covenanted to place the demised premises in repair. Held, that evidence was admissible on behalf of defendants of an employment of them by plaintiff to make such repairs for him under a special contract, which had been fully performed on their part, although such special contract was not pleaded.</p>

On May 8th, 1882, the canal boat Emma was lying at a certain bulkhead in the port of New York, in charge of the defendant Mahoney. On that day one of the harbor masters of said port ordered Mahoney to remove the boat from the place at which she was stationed. He refused and neglected to obey said order.

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

<p>In an action to recover damages for injuries alleged to have been the result of negligence of defendant and his servants, it appeared that the injury was caused by apparatus which was in charge of a servant of defendant, but that it occurred while such servant was temporarily absent and the apparatus was under the control of a stranger; and plaintiff did not show that such stranger assumed control of it with the knowledge or consent of defendant’s servant. Held, that the complaint was properly dismissed.</p>

The action was for damages for wrongful discharge of' plaintiff, who was hired by defendants as foreman of the-cutting department of their business. The answer was a. general denial, except of defendants’ copartnership. On-the trial, defendants gave evidence to justify the discharge-of plaintiff on the ground that tie had received, from the tailors to whom he gave out work, money to influence his-conduct as foreman of defendants’ establishment.

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

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

An appeal was also taken from an order denying a new trial for alleged misconduct of the jury, but this appeal was abandoned on the argument before the General Term. The action was upon a building contract between plaintiff, a builder, and defendant, as owner, for the erection of two houses on Tenth Avenue, near 106th Street, for the sum of $19,250.

The action was for “ damages for non-delivery of goods.” The facts shown were: On November ,4th, 1882, at Newark, N. J., one Mercy delivered to defendants’ express company a package to be shipped to plaintiffs at New York, and received a receipt which contained the condition that in no event should the company be liable for any loss or damage unless the claim therefor should be presented to them in writing within thirty days after the date of the receipt in a statement to…

<p>Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

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

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

The action was brought to recover damages for injuries received by plaintiff by the falling of a scaffold, on which he was working for defendant, in painting and scraping the steamship Alps.

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

The action was brought for money alleged to have been received by defendants from the sale by them, as plaintiffs’ brokers, of certain shares of stock of the Fairfax Mining Company, which were delivered by plaintiffs to defendants for that purpose at the City of New York, upon being notified of such sale. The stock was, in fact, sold by defendants at San Francisco, through agents there, and the stock needed for delivery upon the sale was borrowed for the purpose.

The action was brought in the Marine Court of the City of New York, by creditors of the Paragon Match Company, a manufacturing corporation organized under the general act of February 17th, 1848, to recover their claims against the company from the defendants, as trustees of the corporation, on the ground of an alleged failure to file the annual report required by section 12 of that statute. At the first trial, a verdict for plaintiffs was directed by the court.

The assignors, copartners under the firm name of R. & H. Adams, were silk manufacturers, and, on or about July 14th, 1882, made a contract with the claimant, James Talcott, their factor, that he should sell all their goods in stock and the entire production of their mills, at a specified commission, for a term thereby fixed of more than three 3'ears.

The defendant corporation is organized under the laws of this state. The defendant Thompson is Commissioner of Public Works of the City of New York, and, when this action was brought, claimed the power and authority to permit the corporation to excavate the streets of the city for the purpose of laying its mains, and was about to or had given permission.

The action was brought to foreclose a mechanic’s lien claimed by plaintiff for materials furnished by him for the erection of a school building in the City of New York, upon moneys due from the defendants The Mayor, Aldermen and Commonalty of the City of New York, upon a contract with Peter Vanderbilt, also made a defendant, for the erection of such building.

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

<p>Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

' On the 28th day of May, 1881, the plaintiff delivered to the defendant a quantity of personal property for storage in his warehouse.

The action was brought to set aside certain deeds by which the property known as No. 40 Stuyvesant Street in the City of New York was conveyed to the defendant Sophie Kingsland. Daniel Kingsland (who is designated in the following opinion as. “ Daniel Kingsland the elder ”) at his death left surviving him four children, the jroungest of whom was a son bearing the same name (who is designated in the following opinion as “Daniel Kingsland the younger ”).

<p>The act of 1822, relative to intelligence offices in the City of New York (L. 1822 c. 15 p. 12), which authorized the Common Council of that city to pass ordinances for licensing intelligence offices and to fix the license fees, was not superseded or repealed by the Consolidation Act of 1882; the provisions of the latter act in respect of the keepers of intelligence offices being merely cumulative of the pre-existing law. ■</p>

The action was brought to recover a penalty imposed by the New York City Consolidation Act of 1882 for keeping ether on sale in that city without a permit. Judgment for defendant was rendered by the justice of the District Court, from which plaintiffs appealed to this court.

The complaint alleged the incorporation of plaintiff, the institution by it of various grand lodges and branch lodges and officers, and their respective duties; among other things, that it was the duty of the financial secretary of the grand lodge to receive from the branch lodges and to pay over to the treasurer of the grand lodge, and it was the duty of the treasurer of the grand lodge to collect from the financial secretary and deliver to the central grand lodge, certain…

Trial of a controversy submitted on a case agreed upon. The statement of the facts contained in the case submitted was as follows: “I. That heretofore, and on the 6th day of April, 1865, the legislature of the State of New York duly passed an act known as chapter 296 of the Laws of 1865, of which section 2 provides as follows: “‘ § 2.

<p>Appeal from a judgment of this court entered upon the dismissal of a complaint.</p> <p>The complaint alleges that prior to the month of August, 1873, the plaintiff was engaged in business as a merchant in the State of Alabama, and that the defendants, on August 15th, 1873, filed a petition in bankruptcy in the United States District Court of that state against him, praying that he be adjudicated a bankrupt; that a provisional warrant in bankruptcy against the estate of the plaintiff was issued August 16th, 1873, under which his property was attached. Subsequently, on August 21st, 1873, an order of said court was made requiring the defendants to file the bond in dispute in the sum of $5,000, to indemnify the plaintiff for any damges which he might sustain on account of said provisional warrant, if he should be proved not to be a bankrupt and the proceedings against him by the petitioning creditors should be dismissed.</p> <p>A suit had been previously brought in a circuit court in Alabama b}r the defendants against the plaintiff, which was ultimately decided in his favor. The parties litigant thereupon agreed upon a statement of facts reciting the trial and judgment in the state court, and submitted the same to the judge of the court in bankruptcy, upon the question whether or not the judgment of this state court was conclusive, and the judge, on September 5th, 1874, ordered that “judgment go for the defendant.” Thereupon the goods of the alleged bankrupt were restored to him, and he sued to recover ,the penalty named in the bond as indemnity for damages sustained.</p> <p>After the plaintiff rested his case the counsel for the defendants moved to dismiss the complaint on the following grounds:</p> <p>1st. That the bond in question was void, as the court had no authority to order it, and that there was no consideration to support it.</p> <p>2d. That if it were valid, its condition was never performed and the liability of the defendants has never attached.</p> <p>The complaint .was dismissed, and from the judgment thus entered the plaintiff appealed.</p> <p>The bond was valid, and executed and delivered upon a good and sufficient consideration. Under sections 39 and 40 of the bankrupt law, as it was in August, 1873, the issuing and continuance in force of the injunction and of the provisional warrant were not matters of right of the petitioning creditor, but rested wholly in the discretion of the district judge. The court, on hearing the bankrupt, might at any.time in its discretion make a further order vacating the provisional warrant or permitting it to remain in force on such terms as to security &c. as would protect all parties to the proceeding (Bump on Bankruptcy 9th ed. 42, 43; Be Muller, 1 Deady 513; M. & M. Nat. Bank of Pittsburg v. Brady’s Bend Iron Co., 12 Nat. Bankr. Reg. 491; Re Holland, 12 Nat. Bankr. Reg. 403; Rosenbaum v. Garrett, 3 Hughes 662; Re Ellinger, 18 Nat. Bankr. Reg. 222; Re Wallace, 1 Deady 433).</p> <p>It was not essential to the validity of the bond that it should be expressly authorized by the bankrupt law. It is well settled in this and in the other states of the union, especially in the state of Alabama, that where a bond is given voluntarily, if it does not contravene public policy, nor violate any statute, it is valid and binding on the parties to it (Munter v. Reese, 61 Ala. 295; Wolffe v. McClure, 19 Ala. 564; Barnes v. Webster, 16 Mo. 265; Classen v. Shaw, 5 Watts 468; Archer v. Hart, 5 Fla. 234; Winthrop v. Dockendroff, 3 Me. 156; Park v. State, 4 Ga. 329; Barker v. Bartol, 7 Cal. 551; State v. Cannon, 34 Iowa 352; Greathouse v. Dunlap, 3 McLean 303; Rowlet v. Eubank, 1 Bush 477). This rule has been repeatedly applied in cases where, a statute having provided for the giving of a bond in a particular manner, the bond actually given did not comply with the statutory requirements; in such cases the bond has been held to be a good common law bond and to be enforceable. Thus a bond derives no force from the statute (Holbrook v. Klenert, 113 Mass. 268; Baker v. Haley, 5 Me. 240).</p> <p>There was such a breach of the condition of the bond as entitled plaintiff to recover. The rule is well settled that to entitle a plaintiff to maintain his action upon a bond given to him, all that is required is a substantial breach of the condition (See Dunbarton v. Pelfrey, 27 N. H. 171; O'Neil v. King, 3 Jones [N. C.] L. 517; Candler v. Trammell, 7 Ired. [N. C.] 125).</p> <p>The United States Dis trict Court sitting in bankruptcy was a statutory court whose jurisdiction, procedure and powers were entirely governed and confined by the provisions of the act creating it. It was absolutely without either equity or common law powers (Daniel, J., in Cary v. Curtis, 8 How. 286; United States v. Cultus Joe, 15 Int. Rev. Rec. 57; Scott v. The Young America, 1 Newb. 101; McIntyre v. Wood, 7 Cranch 504; Ex parte Cabrera, 1 Wash. C. Ct. 232; Wheaton v. Peters, 8 Pet. 593; Ex parte Bollman, 4 Crunch 75). As to the authorities cited by counsel for plaintiff, on the trial, that the court had power to exact such a bond as'this (National Bank of Pittsburg v. Brady's Bend Iron Co., 5 Nat. Bankr. Reg. 491; Re Holland, 12 Nat. Bankr. Reg. 403 ; Rosenbaum v. Garnett, 3 Hughes 662; Re Muller, Deady 513), an examination of those cases shows that they do not tend to sustain the proposition. The United States District Court sitting in bankruptcy, therefore, had not jurisdiction to order a bond not contemplated in the statute which created the court and defined its jurisdiction (Bouvier Law Dict. tit. “ Jurisdiction ; ” Burrill Law Dict. tit. “Jurisdiction; ” Re Norris, 4 Nat. Bankr. Reg. 10). Whatever a court does or requires in excess of its jurisdiction is void, and all subsequent proceedings fall with the void act or order which gave them birth (See opinion of Field, J., in Windsor v., McVeigh, 93 U. S. 274, 282, 283; opinion of Miller, J., in Ex parte Lange, 18 Wall. 163, 176-178 ; also Bigelow v. Forrest, 9 Wall. 339; Bayr. Micon, 18 Wall. 156). Among the illustrations of this rule in the courts of New York are a large number of cases where bonds given to procure the release of vessels taken on attachment under the act of 1862 were held void, because the court was without jurisdiction to take such bonds (Broakham v. Hamill, 43 N. Y. 554 ; 54 Barb. 209; Fralick v. Betts, 13 Hun 634; Murphy v. Salem, 1 Hun 141; Pool v. Kermit, 59 N. Y. 554; Vose v. Cockroft, 44 N. Y. 514). Cases in Alabama, by the law of which state this case is to be determined, are to the same effect (Wightman v. Karsnes, 20 Ala. 446; Forster v. Glazener, 27 Ala. 391; Grum v. Howell, 27 Ala. 663).</p> <p>Nothing was done by the judge as a condition for the order. The order was made that the petitioners file a bond to indemnify the alleged bankrupt for a past act lawfully done under the lawful process of the court. When a case is one where a condition is proper, it must be imposed, if at all, when a process is vacated or issued; and a judge cannot, after issuing a process, recall it and require a bond (Matter of Bradner, 87 N. Y. 171).</p> <p>In all the cases in which a bond has been held valid, because required by the order of a court, the court has been one possessing equitable power, and the bond has been required in the exercise of that power (Decker v. Judson, 16 N. Y. 439; see also Ames v. Webber, 10 Wend. 575; Chandler v. Brecknell, 4 Cowen 49 ; Brown v. Murray, 4 Dowl. & Ryl. 830; Ford v. Townsend, 1 Rob’t 39); and in all the cases reported the bond was required as a condition of some action of the court then and there to be taken.</p> <p>By the Revised Statutes of New York, and by the Code of Alabama, the validity of a common-law bond without consideration has been destroyed (2 R. S. 406 § 77; Ala. Code § 2981). But if it be assumed that the bond was a voluntary one, it was still without consideration, and, for that reason, void ( Wayne v. Sherwood, 14 Hun 423; Cadwell v. Colgate, 7 Barb. 253; Homan v. Brinckerhoff, 1 Denio 184; Webb v. Albertson, 4 Barb. 51; Benedict v. Bray, 2 Cal. 251, approved in Caffrey v. Dudgeon, 38 Ind. 512; see cases cited in opinion of the court; also Commonwealth v. Bassford. 1 E. D. Smith 218; Murphy v. Salem, 1 Hun 141 ; Fralick v. Betts, 13 Hun 634; Fool v. Kermit, 59 N. Y. 554; Vose v. Cockroft, 44 N. Y. 415; Broakham v. Hamill, 43 N. Y. 554; 54 Barb. 209; Byers v. State, 20 Ind. 47; other cases are Ancoin v. Guillot, 10 La. Ann. 124; United States v. Hipkin, 2 Hall Amer. Law Jour. 80 ; Ward v. Syme, 8 N. Y. Leg. Obs. 95 ; Rockwell v. Me Govern, 40 N. Y. Super. Ct. 118, aff’d 69 N. Y. 294). The rule in Alabama, as here, is. that to render a bond, not good as a statutory bond, valid as a common law or voluntary bond, it is requisite that it should be supported by .a consideration (Alston v. Alston, 34 Ala. 15; Hester v. Keith, 1 Ala. 316; Gayle v. Martin, 3 Ala. 593; Whitsett v. Womack, 8 Ala, 446; Williamson v. Wolf, 37 Ala. 298; Sprowl v. Lawrence, 33 Ala. 675).</p> <p>The fact that the marshal had taken possession of plaintiff’s goods on the 16th of August, 1873, on a provisional warrant theretofore issued, did not constitute any legal consideration for the bond required on the 21st of August and given on the 4th of September, because the seizure was a past act done under lawful authority (Day v. Bach, 87 N. Y. 56 ; Metcalf on Contracts, 193; 2 Parsons on Contracts, 391; Pritchard v. Norton, 106 U. S. 124; Chaffee v. Thomas, 7 Cowen 358; Farnsworth v. Clark, 44 Barb. 601; Frear v. Hardenburgh, 5 Johns. 272; Dearborn v. Bowman, 3 Metc. 155 ; Green v. First Parish, 10 Pick. 499 ; and the following Alabama cases; Shaw v. Boyd, 1 Stew. & Port. 83; Duncan v. Hall, 9 Ala. 128; Jackson v. Jackson, 7 Ala. 791).</p> <p>There was no moral obligation sufficient as a consideration even for an express promise (Metcalf on Contracts, 178; Ingraham v. Gilbert, 20 Barb. 151; Smith v. Ware, 13 Johns. 249, 257; Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Conn. 57; and the following Alabama cases ; Keenan v. Holloway, 16 Ala. 53; Barron v. Vandvert, 13 Ala. 232; Vance v. Wells, 6 Ala. 737; 8 Ala. 399).</p>

<p>In an action in a district court in the city of New York, for goods sold and delivered, upon affidavits that the goods were obtained by false and fraudulent representations, an order of arrest was granted and served upon defendant; and a motion by him to vacate it was denied. Held, that, upon the trial, proof by plaintiff of the sale and delivery of the goods and non-payment therefor, without proof of the fraud averred in the affidavits, was sufficient to entitle him to recover, and to have execution against the person of defendant; the provisions of subdivision 4 of section 549 of the Code of Civil Procedure having no application to the district courts.</p>

<p>Appeal from a judgment of this court entered upon the report of a referee and from an order granting an additional allowance.</p> <p>The facts are stated in the opinion.</p>

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

<p>Trial of an action by the court without a jury.</p> <p>• The action was brought bjr judgment creditors to set aside a general assignment by the judgment debtor for the benefit of his creditors.</p> <p>It appeared from the evidence that the defendant Spethmann, the assignor, being insolvent and intending to go to Europe to see his creditors, executed an assignment for the benefit of his creditors, without preferences, to the defendant Winkhaus, which was dated and acknowledged by both the assignor and assignee on March 19th, 1883. The instrument contained the usual acceptance of the trust by the assignee. The assignment was not delivered at the time, and was not intended by the parties to take effect as an assignment on the date thereof, but was retained by the assignor and by him handed to his attorney, with the express direction to keep it until further orders from him, or until said attorney thought necessary to file it for the best interest of all the creditors. The assignor sailed for Europe on March 21st, 1883, and immediately thereafter, the plaintiffs began an action and obtained an attachment therein against the property of the debtor Spethmann on the ground of his non-residence. After the levy of the attachment the assignment was first delivered by the assignor’s attorney to the assignee, and was thereupon filed. The attachment was subsequently vacated on technical grounds. It appeared also that the whole stock in trade of the assignor had, prior to the assignment, been consigned to the firm of which the assignee was a member, and was held by them for sale on commission and as security for advances made thereon.</p>

Motion to set aside an amended return upon appeal from a district court in the city of New York. The facts are stated in the opinion.

<p>Appeal from a judgment of a district court in the City of New York.</p> <p>In an action in a district court a warrant of attachment was issued and levied upon personal property of the defendant. A motion by him to set aside the attachment was denied. Judgment was rendered for plaintiff, defendant' admitting the claim upon which the action was brought.. From the judgment, the defendant appealed to this court,, seeking a review of the refusal to set aside the attachment»</p>

<p>Goods were ordered hy defendants from plaintiffs, nothing being said as to where or by whom the goods should be made, though it was understood they were not in existence ; hut it did not appear that defendants expected plaintiffs themselves to manufacture the goods. Plaintiffs were agents of, and sold goods and took orders for several manufacturers of such goods, among them for a corporation of which plaintiffs were stockholders as well as sole agents ; and by this corporation the goods ordered were in fact manufactured for plaintiffs. B'eld, that this was a sale of goods within the Statute of Frauds, rather than a contract for work and labor (re-affirming the doctrine of Millar v. Fitzgibbons, 9 Daly 505).</p>