Volume 13 — Abbott's New York Practice Reports

Joseph Fellows brought an action against John Heermans, in the supreme court, to set aside or reform a certain sealed instrument, made by plaintiff to defendant, conveying all the grantor’s real and personal estate, on account of the grantor’s age and infirmities, and in consideration of one dollar, with a proviso that the grantee should sell and' convey the lands at retail, and that the avails should be paid over to the grantor during his life, and afterwards applied to'…

<p>Appeal from a judgment recovered in' a justice’s court against a stockholder, for a debt of the corporation.</p> <p>The facts are stated in the opinion.</p>

<p>Abatement.</p> <p>An action cannot be regarded as having abated by reason of the death of one or more of the several parties to it, when the proper parties still remain before the court, enabling it to make a final judgment respecting the subject-matter of the controversy.</p> <p>If, on the death of the party, the cause of action survives to or against some other of the parties, so that a perfect decree or judgment as to every part of the litigation can be made between the surviving parties, the suit does not abate as to the survivors.</p> <p>Pending an action brought by a copartnership against the defendants as assignees of an insolvent debtor, of whom the plaintiffs were judgment-creditors, .one of the plaintiffs and also one of- the defendants died. Held, that as in eaoh'instance the survivor succeeded to the rights and liabilities of the decedent for all the purposes of the action, the action did not abate, and the survivors might proceed without reviving it.</p> <p>In such case it is only necessary to put upon the record a suggestion of the death ' of the deceased parties, in conformity with 2 Rev. Stat., 386, § 1, though if either party desires it, an order may be entered directing the action to continue between the survivors.</p>

Habeas corpus. This was an application by a parent, to obtain a habeas Corpus for the discharge of a son who had enlisted in the United States service during his minority, without the consent of his parents. The facts relating to the application appear in the opinion of the court.

<p>Pleading.—Amendment.</p> <p>Where, after commencing an action by the service of summons, demanding judgment for a specific amount, the plaintiff discovers that his cause of action is greater than he had supposed, and entitles him to demand a larger amount, his application for leave to amend the summons should he granted. So held, where the cause of action was single and entire.</p> <p>The fact that the amendment defeats the Statute of Limitations as to the additional claim, or may affect defendant’s remedies against third parties, forms no objection.</p>

• Motion for change of receiver. This was a creditor’s action, brought to set aside a conveyance as fraudulent. The motion was (according to notice) upon “ the pleadings, decree, and proceedings in the action,” as well as upon affidavits.

<p>Appeal from an order at the trial nonsuiting the plaintiff.</p> <p>Philip Hackford, as administrator of William Hack-ford, sued defendants to recover damages for the intestate’s death in consequence of a collision with one of their trains at a highway crossing. The facts appear in the opinion.</p>

This action was brought to recover the sum of two hundred dollars for official services and attendances on behalf of the defendant, as commissioner to take testimony to be used in the State of Ohio. The defendant's denied that they agreed to pay this sum, and that the services actually rendered were of any greater value than thirteen dollars. The cause was referred to Abraham Underhill, who reported in favor of the plaintiff for $23.

This action was brought by the People of the State of New York, by Marshall B. Champlain, their attorney-general, as plaintiffs, against William M. Tweed, Elbert A. Woodward, James H. Ingersoll and Andrew J. Garvey, to recover of the defendants the sum of six million three hundred and twelve thousand dollars, which, it is alleged, the defendants wrongfully obtained from the county treasurer of the county of New York, and appropriated to their own use.

This action was brought to foreclose a mortgage on a lot of land in the city of Brooklyn. The same premises had been foreclosed under a prior mortgage, held b-y the Rutgers Fire Insurance Company, the appellants, and had been purchased by them, at the sale under the decree, for $500. By some oversight the company did not make the plaintiff in this action a party defendant to their foreclosure suit.

Trial at circuit. This was an action brought by Dewitt C. Littlejohn, who had been speaker of the Assembly of this State in the year 1860, against Horace Greeley, one of the editors, proprietors, and publishers of the Hew York Tribune, to recover damages for an alleged libel published in that paper, September 26, 1860, which was set forth in the complaint with the innuendoes as follows : “ A correspondent earnestly inquires our opinion concerning the nomination for members…

This was an action to foreclose a mortgage, given to secure the payment of two promissory notes made by William D. Salisbury. The complaint prayed judgment of foreclosure and sale, and for deficiency against William D. Salisbury. Salisbury interposed the defence of usury, and afterwards, at request of the plaintiff, withdrew his answer, on receiving a discharge or release of all liability from the plaintiff, which release is set forth in the opinion.

<p>Motion to strike out answer as sham, irrelevant, and frivolous.</p> <p>The facts are sufficiently stated in the opinion.</p>

Proceedings supplementary to execution against the property of the defendant. The examination of the judgment-debtor, and other witnesses, disclosed as facts ¡-—That on or about the 1st day of February, 1860, the defendant and Jeremiah Haley, Jr., entered into co-partnership, as hair-dressers, under the name and style of Williams & Co., and purchased from Jeremiah Haley, Sr., the hair-dressing saloon Ho. 197 Broadway, for the sum of $8,000.

Motion to require the plaintiff to elect which count of his complaint shall be stricken out, and that it be made more definite and certain, so as to show whether it is founded in contract or in tort. This motion was founded on a complaint which professed to state two distinct causes of action.

Motion to discharge an attachment. This was an action upon a promissory note of $1094.79.

Motion to set aside a judgment and execution. .. The applicant, Thomas Holyóake, moved upon several affidavits. His own set forth, that .the defendant and judgment-debtor, Morrison, died in March, .1860; that in June, 1858, Morrison applied to him for. a loan on a mortgage of a -house and grounds in Brooklyn, arid offered. to .employ a . lawyer to search the. title.

Motion, to set aside execution. On October 9th, 1861, plaintiff perfected judgment against defendant, and on the same day issued an execution upon the judgment to the sheriff of the city and county of Eew York, under which execution the sheriff levied upon a stock of goods of defendant, and put a man in charge. After .levy, defendant appealed to the general term, and gave an undertaking to procure a stay of proceedings on appeal, and served a copy of the same on the sheriff.

This action was commenced to recover the sum of $2,500, 'the amount of five promissory notes, made by the defendants The amended complaint averred that the plaintiffs were a corporation, duly incorporated by the laws of the State of Hew Jersey (with power to sue and be sued), and did business in the State of Hew York, and set out the several notes as distinct causes of action, according to their legal effect.

This action was commenced in October, 1856, and issue was joined in March, 1858. In May, 1859, the defendant served a copy of proposed amended answer, with notice of a motion for leave to amend, which motion was granted. Several commissions were subsequently issued to take the testimony of several witnesses, and among others the plaintiff.

This action was brought upon an undertaking of bail in a civil action, entered into by the defendants on behalf of one Walscheid. The defence set up that judgment was rendered in favor of Walscheid by default, and that, though the default was opened, and judgment finally rendered against him, he had meanwhile left the State.

The action was brought by Giles W. Porter against the defendant, for the wrongful seizure and sale of personal property, the alleged property of said Porter. The defendant interposed a general denial. During the pendency of the action, Giles W. Porter died, and the action was continued by, and in the name of Mary C. Porter, acting executrix of the last will and testament of said Giles W. Porter, as plaintiff.

The plaintiff had entered into a contract under seal with the defendant, in which the plaintiff described himself as agent for his sisters, and covenanted that his sisters should perform at the defendant’s theatre; for which services the defendant agreed to pay them $100 per week. The complaint set forth this covenant (which it stated to be made with the sisters), a breach, and an assignment, by the sisters, of their cause of action to the plaintiff. The sisters were minors.

This was an action on two promissory notes. The complaint was verified as follows: [Venue.] Angelo L. Myers of said city, being duly sworn, doth depose and say, that the above complaint is true to his own knowledge, except as to those matters stated on information and belief, and as to those matters he believes it to be true.

In June, 1850, Thomas Lewis executed to plaintiffs a bond conditioned for the payment of $20,000, and interest, which bond was secured by a mortgage upon five lots, in the county of Kings, made by Thomas .Lewis and Clarissa C., his wife.

, directing the sheriff to pay the proceeds of a sale of the property of the defendant to the plaintiff, Dunderdale, instead of to Jacot, the appellant. In December, 1859, the defendant Sauvestre confessed judgment in favor of one Jacot, for $1,000. On May 22, 1860, an execution was duly issued thereon to the sheriff of New York city.

<p>Constitutional Law.—Local Statute. —Title of Bill.</p> <p>The subject of an act authorizing the closing of one street and the opening of a new one, the expense to be assessed on neighboring property, in a different mode from that prescribed by the charter,— is not indicated by the title, “An act to alter the commissioner’s map of the city of Brooklyn, ” and the provision "is, therefore, rendered void by the provision of the constitution which requires the title of local acts to indicate their subject.</p>

This was an action on a policy of marine insurance. The ; complaint stated the shipment and loss of the goods insured, ! amounting in value to $6,500, in thirty-seven different items, Í all shippéd within three days. The answer denied' the shipment. Í The plaintiff moved, at special term, for á reference, upon a gen- ; eral affidavit that a long account was involved. The defendants opposed, upon an affidavit that the shipment was fraudulent.

<p>Motion to strike cause from circuit calendar for irregularity.</p> <p>The facts are sufficiently stated in the opinion.</p>

Taxation of sheriff’s fees on execution. This action was brought by Andrew J. Crofut against John Brandt. The facts are sufficiently stated in the opinion.

Application on habeas corpus for discharge from imprisonment. Judgment was rendered in this action, on a report of referee, that the defendants specifically perform their contract with the plaintiffs, and convey to them a house and lot in Twenty-sixth-street, New York (now estimated to be worth $12,000), and for which the plaintiffs had principally paid. This judgment was rendered by the court on the 7th day of May, 1856, and was not appealed from.

William A. Hadden and others, composing the firm of Hadden & Co., sued Jeremiah W. Dimick, in the supreme court, to recover damages for the violation of the following agreement: “It is hereby agreed between J. W. Dimick and Hadden & Co., that the said J. W. Dimick shall, for the three years next ensning, . . . consign, exclusively to the said Hadden & Co., all the blankets of his manufacture to be sold by them, and that the commission to be allowed Hadden & Co. for such…

The Buffalo Union Iron Works brought an action in the Buffalo superior court against the city of Buffalo, to have declared illegal certain assessments levied upon plaintiffs’ property, and to have defendants enjoined from collecting the same. These assessments had been made to defray one-half the expense of removing certain obstructions in the Buffalo river, on the banks of which plaintiffs owned land. The facts are stated in the opinion.

The complaint in this action, omitting some merely formal parts, was as follows: ' I. That the plaintiffs are partners, doing business in the city of Hew York as bankers and brokers, under the firm-name of “ E. Whitehouse, Son, & Morison.”* II.

Trial by the Court. These were two actions brought to recover damages for the taking and carrying away of thirty-nine chilled-iron and two sheet-iron safes, alleged to have been the property of the plaintiffs, at Chicago, in the State of Illinois. The causes were tried at the Rensselaer County Circuit, before Mr. Justice Hogeboom, without a jury.

In this action (which is reported at p. 25 of this volume), the defendant Tweed (who had been held to bail in one million dollars), upon notice to the plaintiffs, moved at special term to reduce the amount of bail required by the order of arrest, and for such other order as might be just. The motion was made solely on the affidavits on which the order was granted. It was based on three grounds: 1. That defendant had done no wrong in the premises and was liable to no one. 2.

This action was brought in the supreme court in the county of New York, by the board of supervisors of that county, against William M. Tweed, to recover from him the amount of fraudulent and excessive bills, which the complaint alleged he had, as president of the board of supervisors, procured the audit and payment of, and a share of which he had received.

<p>Mandamus .—Common Schools . —Citizen ship.</p> <p>The general rules governing applications for ’the writ of mandamus are, that it cannot be claimed in every case where a person is injured by the improper act of public officers. The court is to consider whether the claimant’s right is clear:; whether he has not a legal remedy by action for damages; and whether the officers complained of are not clothed by law with some discretion in respect to the subject of their acts. ,</p> <p>In the city of Albany, there being no division of school districts, an inhabitant cannot claim the absolute right to select for his children such school as he pleases, in disregard of the regulations of the board of public instruction.</p> <p>The board of public instruction have the power, in their discretion, to adopt regulations for the admission of pupils by which the assignment of children between schools affording equal advantages shall be determined.</p> <p>It seems, that if they should unlawfully exclude a child from a school, the remedy would be by action.</p> <p>A regulation of a board of public instruction, assigning a particular school for colored children, and excluding .colored children from schools assigned for white children, is not in violation of the fourteenth amendment of the Constitution of the United States, which prohibits the States from making or enforcing any law which shall abridge, the privileges and immunities of citizens of the United States.</p>

Demurrer to complaint. This action was brought upon a bond given to discharge an attachment issued against the steamship Metropolis, to enforce a lien for materials sold in the city of New York for said steamship, then in course of construction in the State of Massachusetts. When the vessel came to this port an attachment was issued against her, therefor, under the act of 1862; and the bond in suit was given to procure her release.

Motion to set aside execution. Stephen S. Barnes recovered judgment in May, 1862, against James Grill and P. F. Grill, and in the same month John Tracy and another recovered a judgment against James Grill. Motions were now made in both actions to set aside executions which had been issued on these judgments respectively. The circumstances material to the question appear in the opinion.

This action was commenced in 1847, in the Mew York Common Pleas, to recover judgment for the amount of a mechanic’s lien upon real property of the defendants David B. and Eli H. Reed, for the sum of one hundred dollars. The defendants were the owners in severalty of two lots upon the Tenth Avenue, in the city of Mew York, at the time the plaintiff worked upon the buildings thereon erected.

Motion to open default on appeal. John Luft and others sued Charles Graham and others, on a promissory note. The note was made by the.defendant McKenzie, and payable to the order of the plaintiffs, and was indorsed by the defendant Graham, for the purpose of giving credit to McKenzie with the plaintiffs, under the circumstances stated in the opinion. The plaintiffs having recovered judgment, an appeal was taken, and the cause was put upon the calendar of the general term.

Edward Hall sued Francis Sigel, John F. Grerdes, and Carl Buchheister, and a number of others, in the supreme court, to recover from them as trustees of “ The Association of the United Sharp Shooters of New York and Vicinity,” a debt of the corporation due to the plaintiff, for which he alleged his assignor had recovered judgment against the corporation, and issued execution, which had been returned unsatisfied.

Motion to discharge an attachment. In May, 1861, an attachment was issued in this action against the defendants, who were a foreign corporation, and the sheriff levied it upon property, which he now held.

-■ Motion to vacate an order, fixing the amount'of security to be given on appeal to the Court of Appeals. In ■ this action, upon supplementary ■ proceedings,.

<p>Demurrer to an answer setting up that defendant had been discharged in insolvency.</p>

Motion by the plaintiff for a precept for costs. The facts are sufficiently stated in the opinion. W. W. Badger, for the motion.—I. This motion is made under Laws of 1847, ch. 890. Section 3 is intended to include all interlocutory costs, and to substitute a fieri facias for an attachment. (Hulsaver a. Wiles, 11 How. Pr. 446 ; Mitchell a. Westervelt, 6 Ib., 265 ; Wetzel a. Schultz, 13 Ib., 191 ; Lucas a. Johnston, 6 Ib., 121.) II. The costs claimed are clearly interlocutory.

Motion to vacate a judgment for irregularity, and to vacate an order of arrest and proceedings under it.

<p>Appeal from a judgment.</p> <p>William W. Stone and others sued William C. Browning and others, in the supreme court, to recover the balance of the purchase money of a quantity of goods, claimed by the plaintiffs to have been sold and delivered by them to the defendants, under a verbal contract of sale.</p> <p>The defendants denied the allegation in the complaint in reference to the sale and delivery. They also set up, among other defenses, separate defenses, that goods were sold by sample, with an express warranty that the goods exhibited were fair and correct samples of the whole, and also that the sale was within the statute of frauds, and void.</p> <p>A motion was made to dismiss the complaint on those, among other grounds, when the plaintiff’s rested their case, and again at the close of the evidence. The motions were denied.</p> <p>The defendants’ counsel then requested the court to charge the jury upon several distinct propositions, one of which was in the following terms: “Ninth. If you find the defendants never intended to and did not, in fact, accept the goods delivered, then your verdict should be for the defendants which request was refused. Exceptions were taken to the denial of the motions to dismiss the complaint, and to the refusal to charge in accordance with the above request.</p> <p>The judge charged the jury, on the rule of law applicable to sales, by warranty and sale, to which no exception was taken by either party.</p> <p>The jury found a verdict in favor of the plainiffs, and a judgment was entered thereon.</p> <p>The supreme court at general term, held that the question whether the sale was by sample, &c., was properly submitted to the jury; and that the rule of damages including plaintiff’s commissions for re-sale was proper ; and that the assertion of a lien was not, under the circumstances, inconsistent with an absolute delivery ; and affirmed the judgment. Reported in 49 Barb., 244.</p> <p>Defendants appealed.</p>

Motion by one of two joint judgment-debtors to set aside the judgment. The facts are sufficiently stated in the opinion.

<p>Joinder of Actions.—Liability of a Defendant in several DISTINCT CAPACITIES.-IRRELEVANCY OF THE RELIEF DEMANDED.</p> <p>The plaintiff, formerly the tenant of a lessor now deceased, brought an. action to recover damages for the breach of a covenant in the lease, that he should receive a renewal of the lease, executed by parties entitled to the premises, from which the plaintiff had been evicted by title paramount to that of his lessor. The complaint claimed to recover from the defendant, as executor of the lessor, and also as executor of a devisee of the lessor, and also in his individual capacity as grantee from the lessor’s devisee, for the damages sustained by the eviction. Hdd (on demurrer to the complaint, upon the grounds that it did not state facts sufficient to constitute a cause of action, and that several causes of action were improperly united), that the defendant was liable in each of these three capacities, and that the liability in these three respects could be enforced in one action.</p> <p>Where a complaint is faulty in claiming relief not authorized by the facts set forth, the defendant’s only remedy is by motion, to strike out such parts of the demand, for relief as are irrelevant.</p> <p>On the argument and decision of a demurrer to the complaint, the court can make - no order for an amendment in respect to the extent of the relief demanded in the complaint.</p>

Trial by the court without a jury. Harmon D. Hull brought this action against Thomas Stevenson. The facts are stated in the opinion. . -

These actions were brought to compel an accounting from defendants of the amount received by them for the insurance of the steamboat “ Arrow,” which was destroyed by fire, and for the earnings of, and disbursements and expenses made and incurred upon, the “Thomas E. Hulse” and the “Arrow.” The complaints alleged that defendants, William Eadford and Thomas E. Hulse, were joint-owners, tenants in common, and proprietors of the “Arrow,” and that the same parties, with one Yan…

The prisoner was indicted by the grand jury of the county of Monroe, for the murder of his wife, Mary Montgomery, at the city of Rochester, in said county, on November 13, 1870. He was tried for the said crime at a court of oyer and terminer held in Rochester, in May, 1871, and was found guilty. A motion for a new trial was denied ; and a certiorari was issued to the end that exceptions taken on the trial should be examined in the supreme court before sentence.

The plaintiffs’ creditors at large of the IT. S. Steam Sugar Refining Company, a corporation created under the general law, authorizing the formation of corporations for manufacturing, mining, mechanical, and chemical purposes, passed February 17, 1848, commenced this action for themselves and all other creditors who should come in, &c., to procure the dissolution of the company, and the appointment of a receiver for the sequestration and distribution of its assets; on the…

<p>Fees oe Referees on Appeal, in Highway Oases.</p> <p>Where several persons appeal from an order of commissioners of highways laying out a road, the referees appointed to decide upon the appeal, are entitled to the fees of a single appeal only.</p> <p>The liability of the appellants in such cases is joint and several, and the referees may recover their entire fees from any one of them.</p>

Motion to compel the plaintiff to file a second bond for costs. The plaintiff in this action was a foreign corporation, and had filed security for costs at the commencement of the action, as required by 2 Rev. Stat., 457, § 1. The obligors in the bond became insolvent, and the defendant made the present motion.

This action was brought to charge the defendants, as trustees of the Empire Stone Dressing Company,—a corporation organized under the general manufacturing law of this State,—with personal liability for an acceptance of such company, hearing date, April 4th, 1854, and payable sixty days from date $ on the grounds: I. That the annual report required by the twelfth section of the General Manufacturing Act, was not filed by said company within twenty days from the first day of…

The court had ordered the arrest of the defendants during the pendency of this action, and upon appeal the order was affirmed by the general term, upon facts which are fully stated in our report of this case. (9 Ante, 58.) The plaintiff having subsequently recovered judgment, moved at special term for leave to issue execution against the person, upon the same state of facts. The motion was denied, and the plaintiff appealed.

The action-was upon a judgment recovered in another State. - The complaint.was in the following form: '■ The plaintiff states the following facts as constituting his complaint and cause of action herein, that the defendant is . justly indebted to him. in the sum-of, &c., together with interest thereon, from, &c., which said indebtedness arose and' accrued as follows ¡—That heretofore, to wit, on, &c.,in Warren County Circuit Court, State of Flew Jersey, the plaintiff, by the…

I.—Appeal from an order granting an allowance. • Judgment having been rendered for the defendant in this action, which was brought for the recovery of over $140,000, his counsel applied to Leonard, J., at special term, for an’ extra allowance of $3000, which was granted. From this order the plaintiff appealed. The defendant moved to dismiss the appeal, and the appeal and motion were heard together.

Motion, by the plaintiff, for judgment, under section 247 of the Code. The facts are fully stated in the opinion, except as to the first defence of the answer, concerning which the court expressed no opinion.

This was an action pn a promissory note, alleged to have been made by the defendants, Porter and Gordon, under the firm-name of Geo. B. Gordon. An attachment was issued on July 7, 1860, and levied upon certain goods belonging to Gordon. But on June 23, 1860, an execution had been issued upon a judgment of the Supreme Court in favor of Porter against Gordon, and levied upon the same goods. After this double levy, the‘goods were sold by the sheriff.

Motion to strike out answer as sham, irrelevant, and frivolous, and for judgment under sections 152 and 247 of the Code.. The facts appear in the opinion.

Motion to reduce bail. This action was. brought by Winchester Britton ((who was district-attorney of Kings county,) against Henry A. Richards, for libel. The details of the material facts appear in the opinion.

■Appeal from an order, disallowing five term-fees in a bill of costs, directed to be paid as a condition of granting a new trial. In this action, an appeal had been taken by the plaintiff from, a judgment entered upon the verdict of a jury, to the general term; the general term granted a new trial, on the ground that the verdict was against evidence, on payment of all costs from and after notice of trial.

Trial by the court. The plaintiff was a carpenter and joiner, and had furnished materials and labor of the value of $420 in the construction of a house upon the premises of the defendant in Brooklyn.

Motion to compel purchaser at judicial sale to complete his purchase. Philip Daly brought an action, in this court, against James H. Burchell and others, to foreclose a mortgage made by Nathaniel J. Burchell to the plaintiff. Burchell, the mortgagor, after making the mortgage, and before this action was brought, assigned his property, including the mortgaged premises, to Nathaniel Burchell and Leander Stone; and they were made parties in this action.

<p>Modification of Injunction- oedee.—Motion to dissolve Injunction BY A PARTY CHARGED WITH DISOBEYING IT.</p> <p>Where defendant had previously moved to dissolve an injunction, and his motion' had been denied, with leave to renew upon affidavits sufficient to clear him of misconduct, in disregarding the injunction, by removing the property in disobedience of it;—Held, that the order imposing this condition did not contemplate a literal purging of the contempt, or denial of the alleged breach of the injunction, but was intended merely to require the defendant to purge himself of a wilful contempt.</p> <p>When the rights of the parties to an action are yet to be ascertained, the power of the court to grant injunctions ought not to be so employed as to work a possible injury to either.</p> <p>Where, upon an undertaking insufficient to indemnify the defendant against loss, an injunction had been granted, forbidding him to move a canal-boat in his possession, and of which he claimed to be the o.wner, near the close of navigation, when freights were high, and a brief delay might have caused the loss of a trip ;—Held, that the injunction should be modified so far as to permit the defendant to employ the boat in the usual and customary method upon the canals of this State, and upon the Hudson river, not removing the same out of the State.</p>

The defendant had put in his answer in due time, containing a general denial of the complaint, and other defence. Before the expiration of twenty days after the service of this answer the defendant’s attorney served an amended answer, setting up, besides the former answer, the Statute of Limitations. The plaintiff’s attorney returned this answer, upon the ground that the defendant could not amend his answer, setting up a new defence, without special leave of the court.

<p>Dower. — Default. — Evidence Necessary to Sustain Judgment.—Effect of Act of 1870.</p> <p>In an action, by a widow to recover her dower, in which infant defendants interpose the usual answer, submitting their rights to the court, proof of service of the papers and of the failure of the adult defendants to answer, is insufficient to sustain a judgment; and a purchaser at the sale under such judgment is not bound to complete his purchase. It is only in an action for the recovery of money only, that judgment upon a verified complaint may be ordered without any further proof of its allegations.</p> <p>The act of 1870 (2 Laws of 1870, p. 1720, ch. 717), authorizing the sale of real estate in which any widow shall be entitled to dower, in satisfaction thereof,—does not dispense with proof of the material allegations of the complaint.</p>

' Appeal from an order denying a new trial. The action was brought upon several promissory' notes indorsed by the defendant. The answer, which was verified, denied notice of dishonor or protest.

Motion to vacate an order. Friend Pitts and others brought this action against Mary Ann Pitts and others, for a partition, and obtained a judgment, in which an allowance for dower was made to one Rachel Ann, wife of John Pitts, who were also defendants in the partition suit. The defendant, John Pitts, now moved to vacate an order for payment into court of such allowance, on grounds which fully appear in the opinion.

The facts upon which the original motions were made are stated in the following, opinion, rendered. at special term, in July, 1859. Weight, J.—The material question is, whether the plaintiffs are entitled to the aid of a court of equity to enforce, for their benefit; the agreement of the 15th of February, 1858.

<p>Motion for allowance of alimony and counsel fees in an action for a limited divorce.</p>

<p>Habeas Corpus.—Process of Marine Court.— Order of Arrest.—Marshal.</p> <p>An order of arrest, made by the New York marine court, under the act of 1872, regulating procedure in that court,—which substituted an order instead of a warrant of arrest, —is properly directed to and served by a marshal of the city of New York.</p> <p>The act of 1865,—which gave a marshal of the city power to serve summons and other processes from the marine court,—applies to orders of arrest, which by the act of 1872 were substituted for warrants.</p>

<p>Exemption of Witness from Service of Process while in Attendance at Court.—Quasi Appearance by Defendant.</p> <p>A person attending court as a witness is privileged from the service of a summons, for the commencement of an action against him, until the expiration of a reasonable opportunity to return to his residence. The rule is the same in the case of foreign witnesses who come into our courts as witnesses, voluntarily, and without having been served in the State with compulsory process.</p> <p>An appearance by defendant in an action will not be held to waive defects in service of process, unless a general appearance is entered, or some act amounting to an appearance is done, not referring to the particular right or remedy to be saved by a special appearance.</p> <p>Where defendant moves to have the summons dismissed on the ground that it has been improperly served, and for that purpose makes and flies an affidavit stating the facts relied on to show irregularity, and his attorneys obtain and serve an order to show cause why the summons should not be dismissed, and ordering the proceedings to be stayed, and extending defendant’s time to answer for twenty days,—these facts do not constitute such an appearance in the cause by defendant as to amount to a waiver of the irregular service of the summons.</p>

<p>Costs.—Allowance in Partition and other Cases mentioned in Section 308 of the Code.</p> <p>Under the provisions of sections 308 and 309 of the Code, as the latter is amended by the Laws of 1859 (969, ch. á68, § 8), the court have no discretion to allow, as a court of equity, any extra costs in actions specified in section 308, except the allowance fixed in that section.</p> <p>The allowance fixed in that section cannot be made to any other party than the plaintiff.</p>

This action was brought by Adrian H. Muller and others against Elias S. Higgins. On the rendering of the verdict the defendant moved for a new trial upon the judge’s minutes, under section 264 of the Code. The motion was denied. Upon the taxation of the plaintiffs’ costs, the clerk disallowed any other than a motion fee for the motion for a new trial, and the plaintiff appealed.

One Eychen hired a part of the defendant’s house. While he occupied it, the defendant cut a door into one of Eychen’s rooms. He assigned his cause of action for the injury, to the plaintiff; and, being examined as a witness, was asked by the plaintiff, “ How much damage did you sustain in this operation of the work?” The defendant objected in general terms, but was overruled. Judgment was rendered in'favor of the plaintiff for $40.

<p>Revival of Action of Trespass against Defendant’s Administrator.</p> <p>An action in trespass for damages in taking and carrying away plaintiff’s goods does not abate by the death of the defendant, but may be revived against his executor or administrator.</p> <p>The provisions of the Revised Statutes (2 Rev. Stat., 114, § 5, and Id., 447, § 1) in relation to actions of trespass by and against executors and administrators, are not abrogated by the Code of Procedure.</p> <p>If there be several defendants in such action, and one of them die, although the action cannot be continued as a joint action against the survivors and the representatives of the deceased, it may, under section 274 of the Code of Procedure, be continued as a separate action against the representatives of the deceased.</p>

This was an action brought by the plaintiff as a creditor of an insurance company, and seeking to hold the defendant, who had been one of their trustees, liable personally for his claim against the company, on the ground of negligence and mismanagement on the part of the trustees. The complaint will be found appended to our report of Andrews a. Murray (9 Ante, 8).

Motion to set aside a precept issued to collect costs of proceedings upon demurrers interposed to part of an answer. This suit was upon a policy of insurance on merchandise, issued by the defendants. The defendants set up in the first three heads of their answer various matters of defence; and then, in the fourth, fifth, and sixth heads of the answer, set forth, by way of separate counter-claims, three promissory notes made by th.e plaintiffs and held by the defendants.

<p>Irrelevancy of Answer.—Demurrer for Insufficiency.</p> <p>An entire answer, to be irrelevant, must be not applicable or pertinent to the cause of action alleged, and not serving to support any defence, in whole or in part, to the action.</p> <p>It seems, that the right to move to strike out an answer for irrelevancy, and the right to demur to an answer for insufficiency, were not designed" for the same purpose ; and it is not optional with the plaintiff whether he will resort to a demurrer or to a motion, to test the sufficiency of the answer.</p> <p>If an entire answer can be stricken out as irrelevant, the irrelevancy or frivolousness must be palpable arid clear, and not require argument to establish it. If the question is to be presented for argument, and requires consideration, it should be done by demurrer.</p>

<p>Demurrer to an answer.</p> <p>The facts are sufficiently stated in the opinion.</p>

Demurrer to a complaint. This xx'as an action brought to restrain the defendant, John Kelly, sheriff of Mew York county, from selling the interest of the defendant, Lawrence, in the property of the firm composed of the defendant, Lawrence, and the plaintiff, upon an execution against Lawrence alone. The defendant, Lawrence, did not contest the action. The defendant, Kelly, demurred to the complaint.

This action was brought by Thomas Hamilton against The Third-Avenue Railroad Company, to recover damages claimed to have been sustained by plaintiff, in consequence of being put off one of the defendant’s cars for an alleged non-payment of fare.

<p>Creditors’ Action.—Injunction.—Contempt.</p> <p>A. creditors’ action cannot be maintained upon a judgment taken against joint-debtors, of whom a part only have been served with the summons, and where no excuse for the want of,such service appears.</p> <p>Nor can it be maintained unless an execution has been issued against all the judgment-debtors. and that remedy pursued to every available extent.</p> <p>It seems, that it cannot be commenced until sixty days after the execution was • issued, even though' the sheriff returns it unsatisfied.at an earlier day.</p> <p>A defendant .being restrained by injunction from disposing of certain property, left it in the charge of his clerks at his §tore, mixed indiscriminately with other property, and having informed the clerks of the existence of the injunction, left the store without any effort to separate and identify the property, and did not interfere personally in the management of the business for some time afterwards. During his absence his clerks sold some of the property covered by the injunction. Held, that the defendant had, by connivance, violated it, and was in contempt.</p> <p>Though a party in contempt, even when the court has not adjudicated him to be so, cannot be heard to ask for a favor, he must be heard upon a matter of right.</p> <p>When a defendant, while in contempt for violation of an injunction, moves for its dissolution, and is entitled pn the merits thereto, liis motion should be granted ' on payment of the costs of the proceedings taken for .his punishment.</p>

Gilbert S. Van Pelt brought this action against The United States Metallic Spring Boot and Shoe Heel Company, to dissolve the defendant’s corporation. The complaint' alleged that the defendants were a corporation, duly organized under the general incorporating act of this State, and transacted its business in the city of New York.

Motion to dismiss complaint. This action came on for trial before the court at special term. At the trial, the defendants moved to dismiss the complaint. The substance of the complaint is set forth in the opinion of Mr. Justice Mullin, on the motion to continue an injunction granted at the commencement of the action. (10 Ante, 321.)

William Redmond brought this action to compel distribution of assets of defendant, a foreign corporation, among the stockholders.

Demurrer to complaint, on the ground that it did not state facts sufficient to constitute a cause of action. 1 The facts are sufficiently stated in the opinion.

Beadleson and others applied to the court by petition, to remove Shepherd Knapp as trustee of two mortgages, made by the Avenue C Railroad Company, upon its road, &c., and for the appointment of a successor. The grounds of the application appear in the opinion.

This action was commenced in August, 1859, to set aside two conveyances made on the 10th and 11th November, 185V, by which the leasehold property, No. V65 Broadway, in the city of New York, was assigned by the plaifttiff to Rhodes, and by Rhodes to Jane McKenzie, who was the wife of plaintiff. The property was worth about $35,000, and at the time of the conveyance was mortgaged for $8,500.

<p>Appeal from, a judgment.</p> <p>Three separate actions were brought by administrators, to recover damages sustained by the death of John Madden, Michael Kelly and Patrick Landers, respectively, while on board the steamboat Westfield, on Sunday, July 30, 1871, and were severally tried before Judge Neilson and a jury.</p> <p>The Westfield was owned by the defendants, and at the time of the accident was engaged upon the ferry from New York to Staten Island. The accident occurred between the hours of one and two o’ clock in the afternoon of Sunday. The boat was in the ferry slip on the New York side, making ready to start on her trip, when suddenly the boiler exploded, killing a large number of passengers, and among others, Kelly, Madden and Landers. A verdict was rendered in each case for the full amount allowed by statute, and from the judgment entered thereon, the defendant appealed to the general term of this court. The appeals are submitted together, the cases being alleged to involve points of error common to all.</p> <p>The charge of Judge Neilson in the first of the cases, the charges in the other cases being of like character, is as follows:</p> <p>Gentlemen of the Jury:—It remains for me to discharge a duty which is imposed upon me, and which is to afford you any assistance I can to enable you to discharge the more burdensome duty that rests upon you. As you have learned from the testimony, the defendants, an incorporation, had in use on July 30 last a steamboat, the “ Westfield,” used in carrying passengers from the city of New York to Staten Island. The plaintiff and her husband and child were passengers on the “Westfield’’ at the time of the explosion, and the husband was killed. It does not seem to admit of much doubt, perhaps none, that that loss of life was occasioned by that explosion, yet it stands as a question of fact for you. It would seem to be admitted in the answer of the defendants, and when a thing is admitted in the answer that supersedes the necessity of proof. The plaintiff, having taken out letters of administration, brings this action to recover the damages suffered by that death.</p> <p>This peculiar action, not known to the common law, has been created by the statute. Our statute provides, in substance, that damages to the extent of five thousand dollars, to be estimated with reference to the pecuniary loss or injury, may be recovered by the representatives of the deceased for the benefit of the widow and next of kin, if such death was caused by a wrongful act, neglect, or default. The words used are comprehensive, and are put disjunctively—wrongful act, neglect, or default. The case, too, must be such that the deceased, had he survived, might have had an action to recover damages for the personal injury.</p> <p>All such actions are grounded in negligence. The plaintiff charges the negligence upon the defendant, and is bound to sustain that charge. The negligence of the defendant is an indispensable element of the case. By the term negligence is intended the want of that care which, under the circumstances of the particular case, might reasonably be expected from one of mature age, and possessed of forethought and prudence. But the degree of care is not the same in all cases. The relations of the parties, and the nature of the particular transaction which brings them together, enter into the ' question. In this instance steam power was used in transporting passengers. The relations which existed between the defendants and the deceased, are quite .clear and beyond dispute, and before you proceed to examine the testimony bearing upon the question of negligence, it is necessary that you should have in your mind clearly, the degree of care which was due from the defendants, as carriers, to the deceased as a passenger on their boat.</p> <p>The rule is this: The defendants, in receiving the deceased as a passenger on the “ Westfield,” were bound to carry him safely so far as human forethought would go, using the utmost care and diligence in respect to their means of conveyance, the boat, the use and control of the steam power, and faithfully to do all that human skill and forethought and the application of known, scientific methods would have enabled them to do for the protection of the passengers.</p> <p>The case confronts you in a double aspect: first, as to the condition of the boiler, machinery and appliances, which should have been in proper order and fit for use, so far as that could have been secured by care and skill; second, as to the steam power, that should have been attended to and managed with the greatest care, skill and vigilance, and with the use of the known and adequate appliances.</p> <p>As to each of the branches of the case you will consider what was done, what, if anything, was omitted or neglected, and thus bring yourselves to the determination of the question, whether or not that death was 'caused by a wrongful act, neglect, or default.</p> <p>To be more specific: You will inquire, first, whether this boiler, in view of the use to which it had been applied, had or had not been properly examined and repaired within a reasonable time prior to this explosion. Second, whether or not its age should or should not have furnished an admonition to have more frequent and painstaking tests applied, if any could have been, to find indications of weakness in the boiler. Third, whether or not the then condition of the boiler justified, in the exercise of the utmost care and skill, the use or presence of steam power to the extent it was allowed to accumulate on this occasion. Fourth, whether or not the steam was allowed to increase too freely without sufficient provision for its escape. Fifth, whether or not the persons then and there in charge possessed the proper experience, and skill, and prudence, and if they were so possessed, then whether they were in fact sufficiently vigilant in the discharge of their duty.</p> <p>Other specific points will doubtless occur to you. But you are to consider such, and the like questions, with a view to the negligence charged, the wrongful act, neglect, or default mentioned in the statute.</p> <p>You will bear in mind that this corporation acted, and was then and there represented, by its agents and employees. What was done or neglected to be done, was the act, neglect or default of the defendants, as much so as if corporations could have been there in actual personality. In contemplation of law, they were present. The due sense of this leads, or should lead, corporations to select fit and proper agents, men of skill and vigilance, and inspire the agents themselves with a due sense of the trust assumed by them.</p> <p>I have thus stated to you the rule of law applicable, and indicated some of the special points of inquiry most directly involved. It is your duty to accept fully, and without a shade of mental reservation, the rules of law stated. The court has a right to claim that; your sworn duty imposes that. Thus, and only thus, do you cooperate with, the court in the discharge of an important duty. But, on the other hand, I wish to pay a like degree of respect to your great office; You are the sole judges of the weight of the testimony, and of the credibility of the witnesses. A sense of this restrains me from commenting upon the proofs at large, and from indicating to you what my own opinions may be on the questions of fact involved. If I could do so, I.would avoid disclosing what my convictions may be on this evidence. It may well be that my convictions may agree with yours. It may well be, also, that your apprehension may have enabled you to see through any disguise I may have attempted to assume in my wish of not intruding upon your province in respect to the facts. But, however that may be, you will sympathize with my wish to have the law properly administered, and the facts properly applied, as I shall sympathize with your wish and determination to mete out full and exact justice between these parties.</p> <p>Without pausing to indicate the characteristic proofs which have been fully brought to your notice by counsel, it is proper that I should call your attention to some points of the testimony in the case, in respect to which you should not be unduly influenced.</p> <p>First. Witnesses have been examined, who, by reason of their special experience and studies as to steam and steam boilers, take the character of experts, and, contrary to the usual course of examination of witnesses, are allowed to give their opinions. This is a kind of proof calling for great scrutiny. It is often dangerous, seldom conclusive. But opinions upon questions of skill and science are to be heard, and are to receive such respect as the jury may think them entitled to. You will consider the character and special qualifications of the witnesses—the reasonableness of the opinion given, the contradiction, if any, and accept what, and only what, satisfies your conscience and judgment. Such witnesses differ. Of that, you had significant illustrations. They could not be uniform, even as to the hammer test, a test in respect to which you may well have opinions. But you will deal with those witnesses as you think best. I have no right to say what you should believe or disbelieve. But it is my duty to caution you to scrutinize the testimony of these opinions, and to distinguish between facts secular and scientific, on the one hand, and mere opinions or speculations on the other. You are not to be controlled by the mere opinion of any witness, if in conflict with the opinion which you may adopt upon your enlarged examination of the case.</p> <p>In the next place, I have to call your attention to what has been said about the hidden mysteries of steam, and the conflicting theories which have existed as to the causes of steam boiler explosions. Such notions always creep into cases of this description, and tend to cast a shadow over the facts, and darken the judgment. It matters little how experts and scientific men may differ as to mere latent possibilities. So long as steam is hot, and the inside of the boiler an uncomfortable place for the student, there may remain room for speculation. But you should not allow yourselves to be discouraged in the free discharge of your duty by modest doubts in respect to unattained acquisitions. Without being fully initiated into the mysteries of steam—mysteries which Nature with a firm hand, still holds in reserve, you may consider whether we have not sufficient knowledge for all practical purposes— know that boilers may be defective, that steam can be managed and controlled by the use of proper methods, and the exercise of due care.</p> <p>In the next place, I wish to caution you as to the circumstances proved, and referred to by counsel, to wit, that the directors of this company living on Staten Island, travel on these boats. The evidence on that subject was objected to by plaintiff’s counsel, but I thought proper to receive it. The fact is before you that the directors went upon the boats of this com-pony to and from New York daily. It was due to them that the fact should appear. It goes to their good faith, but it does not touch the vital question before you. It may be that those directors had faith in their boat when they should not have had, in the skill and care and prudence of the men employed when they should not have had, and their presence or absence on these boats leaves the vital question for you to examine, and is not at all covered by the circumstance that they had faith in the boats or in the men.</p> <p>I have further to say, that you should dismiss from your minds all extraneous matters. It has been stated to you, and, I think, stated with undue freedom, as if it were a fact in the case proved before you, that there .are a great many of these cases, and that a recovery in each would amount to a great deal of money, and that the company would be ruined. I need hardly say to gentlemen of your intelligence, that there is no such evidence before you, and that it is becoming in you, as a matter of self-respect, as well as due to the court and to the parties, that you discharge from your minds all sense of any such matter. You will try this case as if this were the only case, irrespective of the question whether the. defendants will suffer or not.</p> <p>I have already called your attention to the double aspect of the case; first, as to the boiler and appurtenances; and, second, as to the accumulation of steam. It seems to me that the second of these branches of the case may be the most deserving of your attention. There were safety-valves for the discharge of the steam, and the question arises:—first, whether these valves, if put in full operation, would have passed off the excess of steam. Second, whether the valves were put in proper use to relieve the steam. Third, did the engineer devote to the. steam and to the use of the safetyvalves, the high degree of care and skill proper to the exigency, or not. These inquiries are for you. In this connection I call your attention to the act of Congress, which is set up in the defendant’s answer, under which they had this test of the boat in June—a few weeks before the accident—when the certificate was given.</p> <p>You are at liberty to consider whether that test, as proved here by the government officer, was fairly applied according to the requisition of the act to which counsel have called your attention, and then further consider whether the certificate to carry twenty-five pounds should have been exceeded under any circumstances. If I remember the evidence of the engineer, he stated that at no time after the last test or examination, had he allowed the steam on his boat to go up beyond twenty-five, except on this occasion. You will please inquire whether on this occasion there was any necessity for it, any excuse for it—whether there was any default or neglect in respect to it.</p> <p>The age of the deceased has been proved to you, and that he was a man in health, that he leaves a wife and child, and that brings the case within the statute as to recovering “ damages for the benefit of the widow and next of kin,” and if you come to the question of damages, you will consider what amount should be given, not exceeding, however, five thousand dollars.</p> <p>Among the numerous requests to charge, was the following:</p> <p>“If the decedent at the time of the injury complained of, was on board of the defendants’ ferry-boat” to be carried by defendants while traveling for pleasure, contrary to the statute, plaintiff cannot recover.</p> <p>Judge Neilson said :—I refuse to charge that. We have, gentlemen of the jury, a statute which prohibits work and labor on the Sabbath, also traveling, except going to and from church not exceeding twenty miles, and except to visit the sick, procure medical attendance and the like, and imposes a fine of one dollar. Our courts, in this State, have gone so far as to say. that a contract made on Sunday shall not be enforced, and that a person who performs work and labor on Sunday shall not recover for his services, and that, I believe, is the extent to which the courts of this State have as yet had occasion to go in the construction of that statute. Courts are obliged to put constructions upon a statute when a question presents itself as it does here, and very properly here, because, the question being a new one, counsel for the defendants have a right to take the point and hereafter be able to have it considered by the court above, if need be. We construe statutes with reference to the supposed intent of the legislature, and with reference to the policy of the particular thing involved in its effect. And when it has been found that a given construction of a statute was impolitic—works out injustice, then, from Lord Coke’s time down, courts have been very astute in hitting upon some construction that should avoid the particular evil. My own view is, that this statute answers the purpose for which it was passed ; that it has no connection whatever with a transaction like this, and that this fine of one dollar does not at all indicate an intent to have the statute reach a case where there may be traveling upon cars or steamboats, thousands of people, and where, from mismanagement or inefficiency of employees, lives may be lost.</p> <p>Moreover, this action does not arise strictly on contract. If it did, the question would, perhaps, present a different aspect. It arises under this statute of ours, giving the action in case of death caused by a wrongful act, neglect, or default.</p> <p>The question is the more respectable, however, from the fact that, under a like statute, the supreme court of Massachusetts has made the very same decision the counsel claims here. But the supreme court in Pennsylvania, and also the supreme court of the United States, at least in one case, where Judge Grier wrote the opinion, decided the other way. In this State we accept the decisions of courts of other States, so far as they commend themselves to our judgment and conscience, but no further. I think the law in Massachusetts is not to be followed. I have just then to add —perhaps it is unnecessary—that this is a question for the court, and one with which you will not concern yourselves at all. I make this decision because I believe it conforms to the intent of the legislature and the meaning of the statute, having, as you have, a profound sympathy with the keeping of the Sabbath.</p>

Demurrer to a complaint. The plaintiffs in this action were the owners of ond half of the brig Alma; the defendant McLauchlin was the owner of the other half of the vessel. The brig was lost at sea, and the defendants Edmiston were employed by McLauchlin as insurance brokers to collect an insurance of $6000, which had been effected before her loss, The Edmistons collected a considerable portion of this insurance-money, and took notes for the remainder.

Demurrer to the complaint. The complaint in this action, omitting the formal parts, was as follows: ■ “The above plaintiffs allege that they have been duly appointed and qualified, by the surrogate of the county of Hew York, to act as the sole executors of Daniel Fanshaw, deceased.^ The above executors, complaining, show to this court, that the said Daniel Fanshaw, in his lifetime, in the year 1857, was assessed in the sum of $420.13, for constructing a sewer on the Third…

This action was brought upon a promissory note made by the defendants Lane and Guild, and indorsed by the defendant Bobert Lane. The makers and the indorser answered separately, setting up defences which are sufficiently stated in the opinion of Mr. Justice Leonard.

The facts are fully stated in the following opinion of the surrogate, delivered in February, 1859.

Daniel Morgan, the respondent, was appointed the general guardian of Mary Jane Morgan and Sarah E. Morgan, minors, in August, 1851, and continued such guardian of Mary Jane, until her death, in 1855, and of Sarah E., until February, 1859, at which time, she having become fourteen years of age, and petitioning therefor, Thomas Buchanan, Jr., was appointed her general guardian. Mary Jane died unmarried and intestate, and her estate therefore descended to her sister.

<p>Applications for writ of error and stay.</p> <p>Henry Rogers was convicted of the murder of John Donohue, in the oyer and terminer of the county of Kings. In November, 1873, he applied to a judge of the supreme court in that county, for a writ of error and stay of proceedings.</p>

On the 25th of July, 1859, the mayor and commissioners of health adopted a resolution directing the city inspector to exe- . cute a contract with the relator for the removal of dead horses, offal, &c., &c., from the streets and from the slaughter-houses, and other places, in the city of Blew York, at a stipulated price of $750 per month. On the 28th of July, 1859, an agreement, in writing, was signed by the city inspector and the relator.

Motion to dismiss an appeal from an order refusing a new trial. This action was tried at the Tioga circuit. The jury rendered a verdict in favor of the defendant. The plaintiffs made a motion at a special term for a new trial, upon a case, which was denied. The defendant then entered judgment against the plaintiffs for costs. The plaintiffs afterwards appealed from the order, denying their motion for a new trial, to the general term.

<p>Witness.—Use and Occupation.</p> <p>An agent held to have acted within- his instructions ; and that therefore, not being personally liable upon the contract, he was not incompetent as a witness in respect to the transaction, by reason of any interest.</p> <p>Under 1 Eevised Statutes, 748, § 26, providing that “any landlord may recover, in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed,” the action for use and occupation may be maintained, if the defendant either held or occupied -the premises. It was formerly well settled that the action would lie where the lands were held by the defendant without being actually occupied, and this provision of the Eevised Statutes does not alter the rule.</p> <p>The cases of Wood a. Wilcox (1 Denio, 37) and Beach a. Gray (2 lb., 84), explained.</p>

<p>Injunction.—Trademark.</p> <p>The name of the place where an article is manufactured cannot be joined with a word descriptive of the article manufactured, in such a manner as to give the exclusive use of the phrase as a trademark, to the person first using it to designate an article sold by him,— e. g., the words “ Worcestershire sauce ” used to designate a sauce made in Worcestershire, cannot be used as a trademark "so as to give plaintiff an exclusive right to their use, and defendant will not be enjoined from using them.*</p> <p>But where defendant puts up for sale his manufactured article, with labels and wrappers which are a colorable imitation of those used by plaintiff,—e. g., where the color of the paper, the words used, and the general appearance of the labels show an evident design to give a representation of those used by the plaintiff,—he will be enjoined from so doing, and the fact that he puts his own name on the wrappers, &c_, as the manufacturer of the article, will not prevent it from being an infringement on plaintiff’s trademark.*</p>

Martin R. Cook and others brought this action against George A. Starkweather and others, to enjoin an alleged infringement of a trademark. The plaintiffs claimed to be the owners of a certain trademark which originally consisted of “Valley Whiskey,” and afterwards “Old Valley Whiskey.” A previous owner, from whom the plaintiffs purchased the brand, had added to it the three letters AAA and a Maltese cross.

At the commencement of the action an injunction had been issued restraining the defendants from selling, transferring, or removing the goods, which was set aside upon defendants’ motion; but a stay of proceedings was allowed on the order setting aside the injunction, _ provided the plaintiff increased the security given on issuing the injunction, by an undertaking in .$10,000, to be approved by a justice of the court.

This action was brought to recover the possession of a piece of land situated in the county of Chemung, and was tried at a circuit held in that county in February, 1854; when, by direction of the court, a verdict was rendered in favor of. the plaintiff, subject to the opinion of the court at general term, on a case to be made.

This was an action on a judgment recovered in Pennsylvania. On the trial of the cause the plaintiff's produced and proved a. Pennsylvania judgment-roll, and then rested their case. . The j udgment-roll showed that there was no personal service upon the defendants in Pennsylvania, but at one place in the margin appeared the words “D. W. Woods” against defendants’ names.

This action was brought by Roxcellena Homan against Alexander Earle, to recover damages which the plaintiff claimed she had sustained by reason of the defendant’s refusal to fulfill a promise of marriage. The trial took place before Judge Neilson and a jury, and resulted in a verdict of fifteen thousand dollars for the plaintiff.

Certiorari, to review proceedings on habeas corpus, had before a justice of this court acting as judge at chambers. Held: and praying for the writ of habeas corpus, to the. end that he might be discharged. The writ was granted, returnable the same day. Proceedings were thereupon had.

This action was'brought to recover the sum of $570, claimed to be due from the defendant, under an order made in supplementary proceedings by a justice of the Supreme Court. The plaintiff had obtained a judgment against one Crane, for about $1400; after the return of execution unsatisfied, the plaintiff, under § 294 of the Code, examined the defendant as the debtor of Crane.

In the action of The People v. William M. Tweed and others, for acts done by him in relation to the auditing of certain claims against the city of New York (see p. 25 of this vol., where the complaint will be found), a motion was made by the defendant, Tweed, to change the place of trial, from the county of Albany, in which the venue had been laid, to the county of New York. The grounds of the motion are stated in the opinion.

Motion to vacate a sale, under a decree of foreclosure and sale, on the ground of irregularity. The facts appear in the opinion of the court.

Motion to set aside judgment for irregularity, and for leave to defend on the merits. This was an action upon a promissory note of $2868.27, made by the defendants to the order of the plaintiff, expressing value received.

Motion to vacate judgment by default and to be let in to answer. Frederick H. Greer sued William M. Tweed, Jr., in the New York common pleas, and took a judgment by default. The facts are stated in the opinion.

<p>Criminal Pleading.—Indictment, for Official Misconduct.—Particularity.—Caption.</p> <p>An indictment against persons composing a board of town auditors, for official misconduct in auditing bills, cannot be sustained, if it simply aver that the bills audited were “unjust and illegal,” or “ pretended and extortionate; ” but it also must aver the particular facts which make the accounts “unjust,” &c.</p> <p>The caption of an indictment taken at the sessions must state that the grand jurors were then and there sworn and charged. If the indictment is removed from the sessions to the oyer and terminer, the caption should be affixed by the clerk; and' without ,such caption, the indictment is bad on a motion to quash.</p> <p>It seems, the objection would not be a good one after.the trial on the merits.</p>

' Motion to vacate an ordeiy dismissing an ■ application under section 240 of the Code. In fhis action an attachment was issued against the property of the defendants, as' a foreign corporation, which was levied on moneys belonging to defendants in the hands of the sheriff of Hew York. The defendants gave two days’ notice of an application to be made at chambers, to discharge the attachment, on giving security as required by section 241 of the Code.

Motions to dismiss sixty-six different actions, with costs to be paid by plaintiffs’ attorneys, on the ground -that they were commenced without authority. These actions were brought to recover in each the penalty of $50 imposed by Laws of 1857, ch. 628, for the sale'of spirituous .liquors in quantities of less than five gallons in' contravention of that act.

Motion to set aside orders as irregular. In two actions, one brought by Henry W. Thaule, and the other by Margaret Krekeler, against Adam Ritter, executor, &c., the plaintiffs after issue joined and before trial, upon an affidavit conforming to the requirement of section 391 of the Code and rule- 21 of the supreme court, obtained the signature of a judge of this court to a summons in each of these cases, dated March 19, 1872, requiring the defendant to appear before the…

Demurrers to a complaint. This action was brought by Francis Skinner, Henry H. Horton, Edmund F. Cutter, Josiah Bardwell, and William B. Brintnell, against numerous defendants.

Habeas corpus. The prisoner liad been examined upon supplementary proceedings in the New York Common Pleas, under a judgment in favor of John O’Connell for $313.37. His examination resulted in the discovery that he had some time before the examination disposed of certain property for about $1,100; for the disposition of a considerable portion of this sum he did not account.

The action was brought to recover from the defendants, Charles A. Meigs, Augustus Greenleaf, and E. B. Greenleaf, who were stock-brokers, damages for having sold, against their duty as agents of plaintiff, stock which they had purchased for him. The allegations of the complaint are stated in our report of the decision at special term, 12 Ante, 267. From, that decision the plaintiffs appealed.

Examination, of a third party, under section 236 of the Code, as to property of a debtor against whom' an attachment had been ’ issued as a provisional remedy. This action was commenced March 1st, 1860, and attachment issued as a provisional remedy against the property of the defendant. It did not appear that any thing had been done under the attachment. In December of the same year, judgment in the action was entered against the defendant.

This was an action for the foreclosure of a mortgage of $1,500. The plaintiff procured a judgment for foreclosure, and the sale of the premises, and advertised a sale. The defendant Warner appealed from the judgment, and procured from a judge of the court' an order fixing the sum to be secured on appeal, for the value of the use and occupation of the premises, as prescribed in section 338 of the Code, at seven hundred dollars.

Motion to require non-resident plaintiffs to file security for costs. • The plaintiffs were residents of Mississippi, and commenced the present action in December, 1860.