Volume 12 — Jones & Spencer's New York Superior Court Reports

<p>Master and Servant.—Railroad Companies.</p> <p>If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption on the ground that the servant was in fact pursuing his own purposes, without reference to his master’s business and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine the issue.</p> <p>Where different inferences may he drawn from the facts proved, and, when, in one view, they may be consistent with the liability of the master, the case must be left to the jury (Rownes ». Del. Lack. & Western R. R. Co., 64 W T. 129).</p> <p>When a train is in motion and a man appears with a conductor’s cap and badge and acts as such and is so recognized, it must be presumed that he is in the railroad company’s employment as a conductor.</p> <p>The duty of protecting the train from trespassers, and of removing them from it, seems to be incident to, and within the scope of such powers as belong to the person in charge of it,—i. e., the conductor.</p>

Appeal by defendant from an order denying a motion to set aside a verdict fdr $1,000 in plaintiff’s favor, on the ground that it was contrary to evidence, and that the damages were excessive. The.exceptions were ordered to be heard in the first instance at the general term, and judgment in the meantime to be suspended.

Appeal by the plaintiff to the general term from a judgment in favor of the defendant upon a demurrer to the answer. The action is for an accounting under an agreement, which is made a part of the complaint, and which grants to the defendant the exclusive right to use a certain trademark registered in the United States patent-office August 10, 1876.

The complaint was to recover $2,900, had and received by defendants to plaintiff’s use. It also charged the defendants, as drawees of the bill of exchange hereafter referred to. It also claimed judgment upon a statement of facts sufficiently referred to hereafter. The defendants were bankers in New York. One Creagh did business in Boston. The defendants sent to Creagh forms of bills of exchange, advice-sheéts, and lists of bankers in Europe.

<p>Appeal from a judgment rendered on a verdict in favor of the plaintiff, and also from an order denying defendants’ motion, made on the judge’s minutes, that the verdict be set aside and a new trial granted.</p> <p>The action was brought to recover $10,000, as the reasonable value of services alleged to have been rendered by the plaintiff, in and about the custody, preservation, and safe keeping of the personal property of defendants’ intestate, after his decease.</p> <p>The cause has been twice tried.</p> <p>At the first trial, the jury rendered a verdict in favor of the plaintiff for $8,476.80.</p> <p>Exceptions then taken by defendants were heard in the first instance at general term, in May, 1877, and were sustained. The verdict was set aside and a new trial ordered, on the ground that the plaintiff had been erroneously examined as a witness in his own behalf, in regard to a personal transaction between himself and the defendants’ intestate (40 N. T. Superior Oí. [10 J. & S.~\ 427).</p> <p>A second trial, in June, 1877, resulted in a verdict in favor of the plaintiff for $9,862.50, upon which judgment was entered for $10,414.72.</p> <p>The defendants moved for a new trial on the minutes, on the ground that the verdict was against the evidence, and excessive in amount.</p> <p>The motion was denied.</p> <p>Defendants appeal both from the judgment and the order denying their motion.</p>

Appeal by defendants from a judgment for $6,085.33, entered October 33, 1877, on a verdict in favor of the plaintiff ; also from an order denying defendant’s motion, made on the judge’s minutes, for a new trial, on the ground that the damages are excessive, the verdict against the weight of evidence, the evidence insufficient to sustain the verdict, and on exceptions taken at the trial; also from an order granting an extra allowance of five per cent.; also from an order…

The action is brought to recover damages for personal injuries sustained by the plaintiff on November 22, 1875, by falling into an unguarded opening extending from the yard of a public school building in Vandewater street, in the city of New York, into the cellar of said building, in consequence of the negligence of the defendant in allowing the covering thereof to be left open.

Appeal by the defendant from a judgment in the plaintiff’s favor, entered upon a verdict for §10,000, and also from the order denying a motion for a new trial.

Appeal by the defendant Hezekiah Watkins from a judgment directing that the agreement set forth in the complaint be specifically performed and awarding other relief to the plaintiff. On the first day of October, 1872, the co-defendant, B. L. Ludington, sold and conveyed to the plaintiff a house and lot on Lexington avenue, for $30,000.

The complaint averred that at the times referred to, the defendants were residents and citizens of the State of New York, and owners of the steamer Waco, which belonged to and was registered in the port of New York, that the defendants loaded her,' among other things, with 300 cases of crude petroleum, in violation of section 4,472 of the Revised Statutes of the United States ; that when she sailed from the port of New York, and down to the time of his death, the deceased…

The complaint alleged that the defendant wrongfully entered into and upon certain lots, land of the plaintiff, and took certain lumber. The answer was a general denial. On the trial the plaintiff read a stipulation that the fee simple of lands known as Harlem Commons, including the lots in question, were on May 1, 1882, vested in Dudley Selden. Harlem Commons were laid out on a map on file in the Register’s office, and the lots in question were 59 and 60 thereon.

The facts of the case, as found by the learned judge before whom the trial was had, at special term, without a jury, are, briefly, and so far as material, as follows : On October 1, 1872, Samuel Simon, Jr., made and delivered to the plaintiff his bond for $40,000, conditioned in the payment of $20,000, on October 1, 1875, with interest.

This is an appeal from an order overruling the plaintiff’s demurrer to the second and third defenses set up in the separate answer of the defendants, Thomas B. and John H. Band.

56 costs, on a dismissal of the complaint, after a trial of issues of fact at special tern, by the court without a jury.

The action was brought to recover the value of work, labor and services, alleged to have been rendered by plaintiff’s husband and assignor to the defendant, at his instance and request; and also a commission of five per cent, upon sales effected by the plaintiff’s husband and assignor for the account and benefit of the defendant, under an agreement between them that he should receive such commission by way of compensation for effecting such sales.

The action was brought upon two promissory notes in writing, made by J. M. Falconer & Co., to the order of Manning, Bowman & Co., and by them specially indorsed to the order of the plaintiff.

The action was brought to recover $561.68, as money necessarily paid out and expended by the plaintiff, for the use and benefit, and at the express request of the defendant, in effecting the temporary removal of machinery in the plaintiff’s building, in order to enable the defendant, while excavating the adjoining premises to a depth more than ten feet below the curb, to obtain convenient access to the plaintiff’s wall, for the purpose of shoring it up and supporting it by…

The action is brought to recover $459.30, the price and value of merchandise sold and delivered by plaintiff to defendants between February 7 and April 5, 1877, on a credit of sixty days. Such sale was made and credit given, as the plaintiff alleges, in reliance upon false and fraudulent representations made by the defendant Solomon Herman as to the solvency and pecuniary resources of the defendants’ firm.

The original defendant deposited in court $5,041. The case showed these facts. On September 6, 1867, Nicholas Butterly, husband of defendant Henrietta Butterly, applied in writing to the North America Life Insurance Company for insurance on his life ; and to the direction to “ Specify name of person or persons for whose benefit assurance is desired. If wife of person to be assured, say so,”—stated: “ Nicholas Butterly.

. Exceptions of plaintiff, heard at general term in first instance, upon dismissal of complaint. The complaint, alleged as follows: “ I. That the plaintiff is an infant under the age of twenty-one years. “II. That on the fifth day of October, A, D. 1874, at said city of New York, upon application duly made on his behalf!, the said Chas. J. Nehrbas was, by an order of this court, duly appointed the guardian of the plaintiff for the purposes of this action. “ III.

<p>Appeal from order.</p>

The defendant Davies made a mortgage to the plaintiff, in 1869, to secure the payment of $44,000 on the first of June, 1870, with semi-annual interest. The mortgage covered lots in the City of New York, owned by Davies. The mortgagor, subsequently to the execution of the mortgage, and during the same month in which it was made, conveyed the mortgaged premises to the defendant Cudlip. By the terms of the conveyance to him, Cudlip assumed the payment of the mortgage.

This is an appeal from the judgment of the special term of this court entered on July 17, 1877. The action was brought to compel the specific performance of an alleged contract for the purchase and sale of a house and lot on the northwest corner of Madison avenue and Fifty-sixth street. The complaint was dismissed upon the merits.

Exceptions ordered to be heard at general term. The action is brought to recover the sum of $5,000 under a policy of insurance issued by the defendant to that amount upon the dwelling and boarding-house of the plaintiff, and the furniture therein, and a renewal of the policy and its continuance in force to July 2, 1875; subject to all the conditions in the original policy. The property insured was destroyed by fire on December 15, 1874.

The defendants appealed from a judgment entered upon a verdict of a jury under the direction of the court, and from an order denying a motion for a new-trial upon the minutes. The plaintiffs are sugar refiners, doing business in Philadelphia. They sue to recover a balance of $2,981.52 and interest, for two hundred and fifty barrels of crushed sugar, claimed to have been sold by them to the defendants, doing business in Montreal, Canada.

This is an appeal from an order of the special term denying an application of the defendant to set aside an execution and to compel satisfaction of a judgment. The motion rose under the following stipulation. “New York Superior Court.” Otto Kromer against Autou Heim.

This is an appeal from a judgment against the defendant entered upon the verdict of a jury, and from an order denying a motion for a .new trial made upon the judge’s minutes.

<p>I. Agreement.</p> <p>1. Modification, when consideration fob necessary.</p> <p> (a) Bent, reduction of. </p> <p>1. An agreement to reduce the rent reserved by a lease for the balance of the demised term thereafter to ensue requires a new consideration.</p>

<p>I. Contracts.</p> <p>1. Promissory note.</p> <p>(a) Consideration, what sufficient.</p> <p>The settlement of a litigation is a sufficient consideration for notes given in pursuance of, and to effect, the settlement.</p> <p>H Settlement.</p> <p>1. Estoppel by.</p> <p>When parties to a litigation come to a settlement thereof, and one, pursuant to the settlement, and to carry it into effect, gives to the other bis promissory notes (such other complying with the terms of settlement on his part), he cannot, in an action on the notes, set up that Ms adversary in the litigation so settled had no legal cause of action against Mm, without showing fraudulent concealment of material facts which were not within his knowledge when he gave the notes.</p> <p>(a) Especially is this the case where the defendant in an action on the notes himself proves the settlement and compromise.</p>

This action was brought against the defendants as copartners on a number of promissory notes made under the name and designation of “ The Davenport Railway Construction Company.” In addition to the statutory provisions referred to in the opinion, there were read in evidence various provisions of the statutes of Iowa, respecting remedies against corporations and stockholders referred to in the points.

The motion was founded on affidavit, and it was denied solely on the ground that the code of civil procedure gives an absolute right to such examination, or, in other words, that there is no power to vacate the order.

Appeal Tby defendant from order denying his motion to vacate an order for Ms examination after service of summons, but before service of the complaint.

<p>Appeal from order overruling demurrer</p> <p>The action was brought against John M. Falconer and Richard Roe, whose real name was unknown to the plaintiff, composing the firm of John M. Falconer & Co., as makers of two promissory notes.</p> <p>The defendant John M. Falconer appeared and answered, and a verdict having been rendered against him, judgment was entered and perfected against both defendants.</p> <p>Subsequently the appellant Henry M. Barrowcliffe, was served with a summons requiring him to show cause why he should not be bound by said judgment. He thereupon demurred to the complaint in the action on the ground that it did not set forth facts sufficient to constitute a cause of action as against him.</p> <p>The court at special term overruled the demurrer with costs to the plaintiff, and adjudged Barrowcliffe bound by said judgment, unless lie should withdraw the demurrer, pay the costs and serve an answer to the complaint in said action.</p> <p>From that order the present appeal is taken.</p>

Plaintiff was appointed a foreman in the Fire Department of the city of New York in 1865. In August, 1872, a certain charge was preferred against him. He was tried on the charge before the committee on discipline of the fire department. The committee found him guilty, and its sentence was that his resignation be demanded.

Appeal by defendants, from an order denying defendants’ motion for a new trial made on a case, exceptions and affidavits. The motion was heard before the Hon. John ■Sedgwick, who delivered the following opinion : “ Sedgwick, J. The case of Fabriliris v. Cook (3 Burr. 1771), does not support the present application.

Appeal by plaintiffs from an order of the special term denying their motion for an allowance under section 309 of the code. The order recited as the reason for the denial' “ That the court has not the power to grant an allowance under said section in such a case as that presented by the pleadings in this action.” -

On April 8, 1876, Henry Yolkening deposited in the New York Life Insurance & Trust Company, $4,000, to the credit of a certain action to which he was defendant,, as. additional security on an appeal, taken by him.

The action was brought to recover a balance of $597, for goods sold and delivered, and for certain disbursements.

The action was brought March 9, 1870, to recover certain dividends declared between June 1, 1861, and February 1, 1870, upon eighty-four shares of the capital stock of the Phenix Bank, and upon the same stock of the Phenix National Bank, into which the Phenix Bank became merged.

The motion for a new trial was made on the exceptions taken during the trial, and also on the ground that the verdict was excessive and contrary to the evidence and the law.

<p>This action was brought to compel the specific performance of the following agreement:</p> <p>“ Know all men by these presents, that for and in consideration of the sum of five hundred dollars, lawful money of the United States, to us duly paid by Horatio N. Gray, we agree to sell, and by these presents do agree to grant, convey, assign, transfer and set over, unto the said Horatio IT. Gray, two indentures of leases, bearing date the second day of October, in the year one thousand eight hundred and forty-six, and November twenty-second, one thousand eight hundred and fifty-nine, made by the corporation of the city and county of New York, State of New York.</p> <p>“The conditions of this assignment are, said H. N. Gray to pay seven thousand dollars, and to assume the assessment of opening Lexington avenue; five hundred dollars to be paid on signing this agreement, fifteen hundred dollars on May 1st, ensuing, and bond and mortgage for five thousand dollars at three years, from May 1st, 1871, with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances; to have and to hold the same unto the said Horatio N. Gray, his assigns, from the 1st day of May, for and during all the rest, residue and remainder yet to come of and in the term of years mentioned in the said indenture of leases, subject nevertheless to the rents, covenants, conditions and provisions therein also mentioned. And we do hereby covenant, grant, promise and agree, to and with the said H. ET. Gray, that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back rents, taxes, assessments and incumbrances whatsoever.</p> <p>“In witness whereof, we have hereunto set our hands and seals this first day of April, one thousand eight hundred and seventy-one.</p> <p>“ WM. P. SEELEY, [l. s.] “WM. P. BENSEL, [l. s.j “ Executors.”</p> <p>The leases referred to in the agreement were:</p> <p>1st. One dated October 3, 1848, for a term of fifty years, given on a sale for the taxes of 1841, 1842, 1843.</p> <p>2d. One dated November 23, 1861, for a term of five hundred years,' given on a sale for the taxes of 1853 and 1854.</p> <p>The complaint alleged that defendant, on or about May 1, 1871, received from plaintiffs under said agreement “ possession of said lot of land, and that thence hitherto he has retained possession of the same.”</p> <p>The prayer of the complaint was as follows :</p> <p>“ Wherefore they demand judgment against the defendant for the said $1,500, with interest thereon from May 1, 1871, and that he shall be compelled to execute and deliver to them a bond and mortgage-according to the requirements of the said agreement; and that as security for payment by him, according to the terms of the said agreement, these plaintiffs may have a lien upon the said indentures of lease and upon the said lot of land of which the following is a description : All that certain lot of land situated on the southerly side of Eighty-seventh street, between Third and Fourth avenues, containing in width in front and rear, twenty-five feet, six and two-thirds inches, and in depth on each side one hundred feet, eight and a half inches, and the improvements thereon ; and that in the event of failure by the defendant to pay for the same as aforesaid, the same may be sold by and under the direction of this court, the defendant being compelled to unite in such sale, and the proceeds thereof applied so far as necessary to such payment, and that for any deficiency these plaintiffs may have judgment against the defendant and that they may recover against him the costs of this action.”</p> <p>The answer as amended on the trial averred that the contract was one to convey a good and valid title to the premises therein referred to, for the full term of the leases described, and that the consideration paid and agreed to be paid by and in said contract was for said title; that plaintiffs had no title other than such as they derived under the tax leases mentioned in the agreement, which were void and worthless ; that there was no consideration for said agreement, and that defendant never received, entered into or took any claim, occupation, or possession of said land of or from the plaintiffs or any act of theirs according to, or under or by virtue of said agreement, or any agreement whatever with plaintiffs, but that he did take title and possession from the actual owner of the fee of said lands, of whom he purchased the same after plaintiffs had failed to give him a good and valid title thereto. It also averred the payment of the sum of $500, mentioned in the contract, and the sustaining of damages to the extent of $250, for examining the title, and of $500, for removing buildings, and preparing to take possession, which three several sums defendant prayed to counterclaim.</p> <p>On the trial it appeared that defendant was in possession, that the lot was a part of the Harlem common lands, and was conveyed by the Harlem common commissioners to Dudley Selden by deed recorded Lib. 194 of Conveyances, p. 44, and by Dudley Selden and wife to Isaac Adriance, by deed recorded in Lib. 291 of Conveyances, p. 594. It also appeared that Isaac Adriance had died, leaving a will by which he devised all his property real and personal to his wife, Margaret E. Adriance, which will was admitted to probate October 21,1862 ; and that Margaret E. Adriance, by deed dated August 1, 1871, and recorded in the Lib. 1175 of Conveyances, p. 672, for the consideration of $5,000, conveyed the lot in question to the defendant. There was no proof that Selden or Adriance ever went into actual possession of the lot; the evidence tended to show the contrary. There was conflict of evidence as to under whom and under what defendant entered and the manner of his entry.</p> <p>There was also evidence as to defects and irregularities in the levying of the taxes for which the premises were sold, in the proceedings for the sale, and in the compliance with the statutes requiring certain things to be done after the sale before the giving of a lease.</p> <p>The cause was tried at special term without a jury.</p> <p>The learned judge before whom it was tried, found, as matters of fact:</p> <p>“I. That the parties entered into the agreement in question.</p> <p>“II. That the said leases were irregular and defective, and that the requirements of the statute of 1843 were not complied with ; and that the proceedings taken to authorize the making of said leases on the part of the mayor, aldermen and commonalty were defective or irregular, in these respects, to wit: As to the first lease. 1. That there is no certificate of the comptroller of the fact of the service of the notice of redemption, as required by § 24, art. 3, c. 230, Laws 1843. 2. The notice of redemption, dated December 11,1849, signed by Gordon L. Ford, was unauthorized and invalid, and its service a nullity. 3. The taxes for payment of which the lot in this lease was sold were illegally assessed for the years in question, viz. : 1841 and 1842 and 1843. 4. No legal demand for the payment of the taxes for those years was or could be made. 5. The certificate of the assessors attached to the assessment roll and signed by them is not verified or sworn to (53 Af. T. 49). 6. No certificate of the assessors is attached to the assessment roll for the years 1842 and 1843. As to the second lease. 1. No order was taken by the comptroller for advertising the lands or tenements in said lease described, pursuant to § 1, art. 3, c. 230, Laws of 1843. 2. There was no publication of the delivery of the assessment rolls to the tax commissioners three times in each week, in newspapers in New York, employed by the corporation of said city, during the years 1853 and 1854. 3. The notices served requiring payment of the taxes for the years 1853 and 1854, were defective in form and substance and service, viz.: (1) It was not served upon the person from whom the tax was due, nor with sufficient time. (2) It did not specify the amount of the tax, (3) Nor the percentage to accrue thereon. (4) Nor that payment should be made on or before January 1. 4. The redemption notice of February 18, 1862, as served by Phineas 0. Kingsland, was irregular in form and false in substance. (1) It does not state for what £ taxes and ■ regular rents for Croton water ’ the premises were sold. (2) It does not state the name of the purchaser of the premises. (3) The notice recites that £ the' said premises have been conveyed to me,’ and is signed £ Eliza C. Kip.’ The conveyance was in fact to Wm. B. Peyton. (4) The notice recites that the premises were sold for taxes and Croton water rents upon the same, without stating for what year or years, and also recites the amount of the taxes and charges as $31.58, which is incorrect, as shown by the lease. 5. The sale for the year 1859 was irregular, and also the redemption notice. (1) Four lots were sold, of which one was illegal, as exempt from any sale. (2) Two of the lots were redeemed for $44.49, out of $88.98, for the four lots sold; the sale as to the other lot was canceled, leaving $22.24 against the lot in question. The redemption notice erroneously required payment of $31.58. 6. The demand of the forty-two per cent, upon $31.58 was unauthorized and invalid. 7. The premises were in occupation, but there is no proof of service of redemption notice upon the occupant by a person residing in the city of Kew York. 8. There is no proof of proper service of said notice upon the last assessed owner.</p> <p>£ 1 III. That the defendant did not enter into nor take possession of the premises in question, under the contract, but refused so to do when requested by the plaintiffs, and notwithstanding their offer of indemnity"; that the delivery of the key of the building situated thereon was not intended to be, and was not accepted as, a delivery of possession of the premises.</p> <p>“IV. That the defendant did take possession on or after July 15, 1871, under license and authority from Mrs. Margaret Adriance, the owner of the fee, and not otherwise, and that he afterwards acquired title to the said premises in fee by conveyance from her, dated August 1, 1871, ‘Exhibit E.’</p> <p>“V. That on or about April 1, 1871, the defendant paid to the plaintiffs the sum of $500 as part of the consideration of the said contract then executed.” .</p> <p>And found the following conclusions of law :</p> <p>“I. I find that the contract between the parties for the specific performance of which this action is brought, is an undertaking on the part of the plaintiffs to transfer something more than mere municipal corporation tax lease, defeasible under certain circumstanced by redemption or otherwise.</p> <p>“I find that by the terms of the contract the plaintiffs were bound to grant, convey and assign to the defendant not only such indentures of lease, but with them an estate in land, viz.: ‘ in all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances,’ to be held by the defendant and his assigns, from May 1, 1871, for and during the residue of the term of years mentioned in said indentures.</p> <p>“II. I find that the contract being an executory agreement, for the sale of an estate in land, is not within the prohibitions of the Revised Statutes with respect to the implication of covenants in conveyances of real estate (1 B. S. 738, § 140).</p> <p>“ III. I find therefore that a covenant, that the vendors had a good title not only to the instruments purporting to be the leases, but to the premises therein described, for and during the residue of the term purporting to be granted thereby, is accordingly to be implied.</p> <p>“IV. I also find that in the case of municipal corporation leases where the contract provides for an assignment not merely of the instruments as such, but of the estate and term thereby purporting to be granted, there is also to be implied a covenant that the corporation had the right and power to grant the estate and term, in manner and form as therein expressed.</p> <p>“V. I find that under the construction of the said contract as above found, the burden of proof was upon the plaintiffs, to show the regularity and validity of the instruments by the tender of which they claim to have sufficiently established performance of or readiness to perform the contract on their part.</p> <p>“ VI. I find that the said leases being defective and irregular, as found in the second finding of fact above stated, were void, and conferred upon the lessees and their assigns no estate, title or interest whatsoever in the premises thereby purporting to be demised, and that there was a failure of the consideration of the said contract of April 1, 1871.</p> <p>‘1VII. I find that the defendant is entitled to recover back the $500 paid by him on account of said contract with interest from the date of payment, and that he should have judgment therefor, and for dismissal of the complaint upon the merits with costs.”</p> <p>Judgment was entered for defendant accordingly, and plaintiffs appealed.</p>

Appeal by the plaintiff from an order overruling his objections to the proceedings for his examination before trial. The defendant obtained an order for the examination of the plaintiff before trial, and on the same day a copy of the order and affidavit on which it was obtained was served on the attorney for the plaintiff.

<p>Conversion.—Sale of stock without notice.</p> <p>Plaintiff's assignors, who were stock brokers, purchased stock for defendant on a margin, and carried the same. Their request for more margin being disregarded, three days after making the same, they sold the stock without notice to defendant, which sale he refused to accept, and thereafter sent defendant an account showing a balance thereon against him, for which this action is brought.</p> <p>Held, that the relation between said brokers and defendant being that of pledgee and pledgor, the sale of the stock without notice to defendant was an act of conversion that debars plaintiff from maintaining this action.</p> <p>Also held, that a subsequent offer by said brokers of stock to replace that improperly sold, was nugatory (see cases cited in opinion).</p>

Appeal by defendants from a judgment in plaintiff’s favor, entered upon a verdict for $600. The action was brought to recover damages for injuries received by the plaintiff in falling through a coal-hole in the side-walk of defendant’s premises. The answer alleged that the injury was caused by the negligence of the plaintiff.

<p>Appeal by the defendant from a judgment entered in plaintiff’s favor, upon the report of a referee.</p> <p>The action is brought to recover the possession of a bond for $1,000 of the Morrisania Steamboat Company, claimed to have been deposited with the German Savings Bank August 20,1873, for safe keeping, and found there by the defendant when he was appointed its receiver. The defendant claims it was transferred to the bank for a good and valuable consideration. The referee found for the plaintiff, and the defendant appeals.</p>

The action was for compensation for services by plaintiffs, under the following written agreement: “ This Agreement, made this 25th day of April, A. D. 1871, between Messrs.

Exceptions ordered to be heard at general term, in the first instance, complaint being dismissed.

Appeal by defendants from judgment entered on verdict and from order denying motion for a new trial made upon the minutes.

The action was brought to recover the value of one hundred and two cases of Japan ear-shells, sold and delivered to the defendants at the agreed price of sixteen cents per pound.

Tke action was brougkt against the defendant as sheriff for unlawfully taking and carrying away the contents of a certain printing establishment owned by the plaintiff, and of the value of $9,500. The defendant justified— 1. Under three several executions against the property • of one John Halloran, under which the property was originally seized ; and 2.

<p>Appeal from judgment dismissing plaintiff’s complaint.</p>

This action was brought to enforce a covenant between two owners of different adjoining pieces of land, situated on the south side of Thirtieth street, between Broadway and Fifth avenue, in'the city of New York.

Appeal by defendants from the order denying their motion for a new trial, and also from the judgment entered against them upon the verdict directed by the court at the trial. The action is to recover upon a policy made by defendants June 8, 1874, and insuring for three years plaintiff’s house and furniture, &c., at Lloyd, Ulster county, New York.

Appeal by defendant from a judgment entered upon a decision of a judge after trial at special term, and after the coming in of the report of a referee, appointed to take and state an account. The action is to recover from the defendant a royalty of one cent for each pair of hinges manufactured by the defendant, under a patent for plaintiff’s invention of an improved spring hinge made in 1862.

This is a motion by defendant, Abendroth, for a new trial, upon exceptions taken at a jury trial, a verdict having been rendered in favor of plaintiff, by the direction of the court. The judge ordered the exceptions to be heard in the first instance at the general term, and the judgment in the meantime suspended. The plaintiff sued the defendants as copartners in the firm of Griffith & Wundram. The cause of action is a balance unpaid of an account stated.

This' case comes before the court in a controversy submitted under section 1279 of the Code. The facts appear in the opinion.

At the trial a verdict for $1,580.30 was directed for the plaintiff, and it was further directed that the exceptions taken by the defendant at the trial, be heard in the first instance at the general term. The action was brought to recover certain commissions, which the plaintiff claimed he would have earned, had the charters of vessels been concluded, which were lost from the defendant’s failure to deliver in due time a telegraphic message.

The action was for damages from the breach by de- fenclants of a contract alleged to have been made between them, acting by one Harrison, as their agent or broker, and the plaintiffs, for the sale and delivery to the latter of coupons taken from bonds of a railroad company, to the amount of $4,950. The main defense was that Harrison was not defendants’ agent. Both Harrison and the defendants resided in New York.

In May, 1876, an agreement in writing was made by the parties to this action, by which the plaintiff agreed for the term of three years to take charge of a kitchen and restaurant, in a house owned by the defendant ; in consideration of which the defendant agreed to let the plaintiff occupy and use the kitchen, room for a restaurant and other rooms in the house, with the privilege to the plaintiff to keep for his own profit a first-class restaurant and dining-room, for the…

<p>This action was commenced February 21, 1876.</p> <p>The plaintiffs recovered a judgment against The New York Mail Steamship Company, February 10, 1868, upon a debt that became due in October, 1867, for $2,100.35.</p> <p>An execution issued on said judgment, February 11, 1868, which was not returned until March 1, 1870, and then returned unsatisfied.</p> <p>During all this time defendants were the owners of '431 shares of the capital stock of said company. The capital stock of- said company was never fully paid in, and a certificate of the same filed, in regard thereto, as required by the statute.</p> <p>The complaint, after stating these facts, claimed that defendants were liable to pay said judgment. The answer set up the statute of limitations as a defense.</p> <p>Plaintiffs demurred to this answer, and the demurrer was argued at special term.</p>

<p>Appeal from an order of the special term, directing judgment for plaintiff, on the answer of the defendants as frivolous.</p>

<p>Appeal from an order of the special term, directing that the defendants have judgment on their demurrer to the plaintiff’s complaint, with leave to the plaintiff to amend his complaint as to the statement of the cause or causes of action, on payment of costs.</p>

Plaintiff was appointed, in the year 1852, an attendant or officer upon the supreme court in this county, by the board of supervisors, and continued to hold that position until March 1, 1874. Held: as a conclusion of law, that the board of supervisors were, by section 3 of chapter 382 of the Laws of 1870, prohibited from increasing the salaries of court attendants, and that the resolution of May 26, 1870, was void.

<p>Appeal from judgment entered upon the verdict of a jury and from order denying defendant’s motion on the minutes for a new trial.</p>

<p>Motion by appellant for a re-argument of the appeal herein.</p>