Volume 13 — Daly's New York Common Pleas Reports

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

<p>Upon trial of an action for damages for personal injuries, it appeared that plaintiff had suffered pain therefrom for several weeks, had felt twinges for several months, and might feel them in the future, as there was a chronic inflammation of the knee joint; but no bones were broken and no limb rendered permanently useless; the capacity of plaintiff to pursue her trade had not been seriously impaired, and there was but little reason to believe that her power of locomotion would be permamently impaired. Held, it not being a case for vindictive damages, that a verdict for plaintiff for $10,000, the interest upon which sum would equal plaintiff’s entire earnings at her trade, was excessive, and the judgment entered upon the verdict should be reversed.</p>

Upon appeal from a final order in a summary proceeding to recover possession of real property in the City of New York, the order was affirmed, with costs to the respondent. His costs having been taxed, the appellant moved for a re-taxation.

<p>In an action against an elevated railway company for damages from a fire caused by sparks from defendant’s locomotive, evidence that the locomotive, at the time of the injury, emitted a quantity of sparks so large and so brilliant that the attention of the witness, who had frequent opportunities for observation, was immediately attracted, is sufficient to make a prima facie case of negligence against defendant.</p>

<p>Motion to vacate a preliminary injunction.</p> <p>The facts are stated in the opinion.</p>

Application by an assignee under a general assignment for the benefit of creditors for leave to bid at a sale of property of the assigned estate. The facts are stated in the opinion.

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

<p>Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

<p>Application for an order for the examination of the books of assignors in a general assignment for the benefit of creditors.</p> <p>■ The facts are stated in the opinion.</p>

<p>A dog attacked another which was muzzled, and thereby incapacitated for defense; and after having been once driven away, made a second attack upon it, and was then killed by the owner of the dog attacked. Held, that 'such killing by him was justifiable, if necessary to save his dog from serious injury, but not if done unnecessarily, as an act of vengeance.</p> <p>The killing of a dog may be justified by proof that it was accustomed to bite mankind, and that it was upon the highway unmuzzled and in a condition to do injury to human beings. Proof that the dog was ferocious is not limited to acts within a year prior to the trial; acts of ferocity done at any time may be shown, but they will not make out a defense if it should appear that for a long time the dog had ceased to be dangerous.</p>

<p>Supplies for defendant’s hotel were ordered from plaintiffs by a steward employed by defendant for that purpose, and were delivered by plaintiffs with bills or memoranda of the amounts made out to the hotel, which were examined by defendant or his bookkeeper, who then gave the steward the money to pay for them; but he paid plaintiffs for a part only, and kept the balance of the money.for his own purposes. Held, that defendant was liable to plaintiffs for the price of goods furnished remaining unpaid. »</p>

. The action was brought to recover damages for assault and baftery and for false imprisonment of plaintiff by a servant of defendant. At the trial the jury found a verdict for plaintiff. A motion by defendant for a new trial was denied, and judgment was entered on the verdict. From the judgment and the order denying the motion for a new trial, defendant appealed.

<p>An agreement for the hiring of real property from July to May 1st of the following year at-a certain rent, and for a year thereafter at an increased rent, constitutes but a single agreement for a hiring for more than one year, and is therefore, if not in writing, void under the Statute of Frauds.</p> <p>Where, in a petition in summary proceedings for the recovery of real property, none of the allegations are stated to be on information and belief, a verification by an agent of the landlord stating that all the material allegations of the petition are within his personal knowledge, for which reason he makes the verification, and that the contents of the petition are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true, is sufficient, being a positive oath to the truth of the whole petition upon personal knowledge, and containing all the particulars required by the Code.</p>

<p>Where the testimony of a plaintiff in his own behalf is contradicted, not only by other witnesses, but also by his own writings, made long before the litigation began, and unexplained by him, his testimony should, be disregarded; and a judgment in his favor supported only by such testimony must be reversed.</p>

<p>The Repealing Act of 1880 did not deprive the district courts In the City of New York of their jurisdiction over actions upon bastardy or abandonment bonds, by repealing the provisions of section 1 of chapter 389 of Ihe Laws of 1802 (see L. 1880 c. 215 § 1. subd. 38), which conferred such jurisdiction upon those courts; since the Repealing Act must be regarded as taking effect after section 3215 of the Code of Civil Procedure, which provided (subd. 3) that district courts should have jurisdiction of such actions, “in a case where, it is prescribed, by a special statutory provision, that such an action can be maintained in a district court.”</p>

<p>Appeal from an order of this court denying a motion by plaintiffs to strike out the first defense in the answer of defendants to plaintiffs’ first cause of action.”</p> <p>Such defense was as follows :</p> <p>“ And, further answering on their information and belief, they deny each and .every allegation in said complaint constituting the plaintiffs’ first alleged cause of action.</p> <p>The motion was to strike out the defense as sham, or that the answer be made more definite and certain as to what allegations were so denied, and that plaintiffs have such other and further relief as might be just.</p> <p>The court at Special Term held that the matter complained of was a part of a defense (it being set forth in the answer, together with other allegations, and not separately numbered) ; that as part óf a defense it could not be stricken out as sham (Code Civ. Pro., § 538), and denied the motion. From the order denying the motion the plaintiffs appealed.</p>

The plaintiff was the holder of a life insurance policy, dated December 29th, 1871, issued by the defendant. This policy was upon what is called the ten-year dividend system.

Motiost for re-argument of an appeal. The facts are stated in the report of the decision upon the appeal, 12 Daly 445, and in the following opinion.

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

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

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

The action was brought to recover damages for an injury to plaintiff occasioned by cinders from a locomotive engine of defendants, in use upon their elevated railroad over Sixth Avenue in the City of New York, falling upon him and striking him in the eye while driving a horse-car under defendants’ railway.

The action was brought in the district court of the City of New York for the Seventh Judicial District, and was removed to this court. The pleadings in the district court were oral.

<p>Plaintiff was employed by a car company in cleaning its cars and preparing them for use on the road of defendant, a railroad company, with which the car company had contracted for the use of the cars, and which had no part in the work of keeping the cars clean and fit for use. She was not hired or paid by the railroad company, and was not subject to the orders or control of its managers. While, in the course of her employment, crossing the tracks of the railroad company, she was struck and injured by one of its cars put suddenly in motion. 1-Ield, that she might recover damages for such injury from the railroad company, even though the injury was due to negligence of employes of that company; she being the servant of an independent contractor.</p> <p>In crossing the tracks at the time of the injury, plaintiff acted in obedience to orders of the manager of the car company, and could not have performed her work without crossing the tracks. Held, that she was not upon the track as a mere licensee, but by the express permission of the railroad company, to aid in the accomplishment of an object that concerned its business, and that it owed to her the duty to move its cars with the care that a man of common prudence would have taken under the circumstances.</p>

The action was brought to recover a sum claimed as the balance remaining unpaid of the price of paper sold and delivered by plaintiffs to defendants.

<p>The Married Women’s Acts of this state have not taken away the husband’s estate by the curtesy in the real property of his wife which remains at her death undisposed of and unbequeathed ; and summary proceedings for the recovery of such property from a tenant under a lease by a married woman in her lifetime may be maintained by her husband as tenant by the curtesy after her decease.</p>

<p>Appeals from a decree of this court entered upon the report of a referee upon an accounting by an assignee for the benefit of creditors.</p> <p>• The assignment of Markham & Orsor, merchant tailors, was filed on April 22nd, 1880. From that date to May 29th, 1880,' the assignee continued the business, made up the stock into suits of clothing, completed work in progress, employed the assignors at salary to conduct the business &c. The inventory and schedules were made up and filed on May 14th, 1880, after the assignee had been conducting the business for two weeks. They were made up by the assignor Orsor, under the direction of the assignee. They showed $14,311.21 of liabilities. As to assets they set forth:</p> <p>Boob accounts (nominal value), . $4,237.70 (actual), . $1,243.50 Stock, ' “ 1,923.43 “ 1,416.71</p> <p>Fixtures, “ 1,000 “ 233.50</p> <p>The items of book accounts, stock and fixtures were not given in the printed case on appeal.</p> <p>The account of the assignee dated December 27th, 1881, was substantially as follows :</p> <p>Dr.</p> <p>Receipts, while the assignee conducted the business, from sale of merchandise to parties not enumerated in inventory and</p> <p>schedules (Schedule A, I, 1), ■......$1,401.16</p> <p>Collections from debtors enumerated in inventory, made during same period (Schedule A, I, 2), .... 471.50</p> <p>Sale of cloths, fixtures, &c., at auction on May 29th, 1880</p> <p>(Schedule A, II),....... 1,027.72</p> <p>Outstanding book accounts collected after May 29th, 1880, from debtors enumerated in the inventory and schedules</p> <p>(Schedule A, HI),........ 958.42</p> <p>Auction of book accounts December 2d, 1881 (Schedule A, IV) 10</p> <p>Collections of property not included in the inventory and collections from parties who bought stock while the assignee was supervising the business (Schedule B), ■ . . . 330.25</p> <p>Cr.</p> <p>$4,199.05</p> <p>Expenses incurred by the assignee while conducting the business (Schedule C),.......$1,572.06</p> <p>Expenses incurred by assignee and not enumerated in last</p> <p>schedule (Schedule C, 2),...... 685.21</p> <p>Preferred claims paid (Schedule D, 1), . . . . • 1,284.83</p> <p>Balance in hands of assignee for distribution and expenses of accounting,......■ . . . 656.95</p> <p>$4,199.05</p> <p>Upon the reference of the account the assignee, presented a supplementary account making a different statement as to the result of Ms conducting the business. It was substantially as follows:</p> <p>Dr.</p> <p>Receipts from goods sold and delivered as per Schedule A, 1,1, $1,401.16 From ditto hut collected subsequently to May 29th, 1880, as per Schedule B, ....... 285.25</p> <p>$1,686.41</p> <p>Collections from inventoried debtors but whose goods were made up mainly under assignee, ..... 471.50</p> <p>(This is Schedule A, I, 2, in gross).</p> <p>Auction sale ($1,037.72).</p> <p>$2,157.91</p> <p>Cr.</p> <p>Expenses, salaries of assignors and their bookkeeper</p> <p>during the same period, .... $305</p> <p>Salaries cutter and tailors for ditto, . . . 230</p> <p>Kent,........ 230</p> <p>Merchandise and incidentals, .... 272.82</p> <p>Tailors for work done outside, .... 394.29</p> <p>-$1,432.11</p> <p>The referee to whom the accounts were referred allowed the account as rendered, with the exception of $115 of the payment of $840 to Thomas & Wilder, preferred creditors, being a portion of the $1,284.83 of claims paid (Schedule D), and charged the assignee with a balance of $771.95. The court at Special Term (10 Daly 122), refused to confirm the report, upon the ground that it was not shown that the conduct of the business by the assignee resulted in benefit to the estate ; that it was shown that the assignee continued the business for the benefit of the assignors to enable them to compromise with their creditors ; and that no proper vouchers were furnished for a large number of payments. The court stated that the account would be referred back to permit the assignee to produce proof as to what proportion of the sum paid to tailors was for work done before the assignment; but the assignee asked for a re-argument of the exceptions to the referee’s report, and tliis being granted, and the court reaching the same conclusion as before, a final decree was entered charging the assignee with all the expenses of conducting the business, viz., $1,540.88, and adjudging that the amount in his hands was $2,312.83 ; being the amount so disallowed and the amount found by the referee, $771.95.</p> <p>From this decree appeals were taken by the assignee and by J. B. Ellison & Sons, who made a claim against the estate. ■ The assignee appealed from so much of the decree as disallowed certain credits claimed by him and charged him with a balance of $2,312.83, and ordered him to pay costs to Charles de Ueufville, a preferred creditor. J. B. Ellison & Sons appealed from so much of tlie decree as directed the assignee to pay said de Neufville the moneys in his hands.</p>

<p>Appeal from a judgment of the district court in the City of New York for the Second Judicial District.</p> <p>The facts are stated in the opinions.</p>

The facts are stated in the following opinion rendered at the Special Term, September 29th, 1884, upon the motion by plaintiff to continue the preliminary injunction previously granted.

The action was brought to recover damages for the erection, maintenance and operation of an elevated railroad structure in front of the plaintiffs dwelling-house, No. 106 Amity Street.

<p>A passenger on a railway train, traveling free upon a pass good for fren passage in the ordinary cars of the railroad company, who pays compensation for transportation in and is accepted as a passenger in a drawing-room car, becomes a passenger for hire, and is not bound by stipulations in the free pass exempting the railroad company from liability to him for injuries.</p>

In a previous action in this court, brought by the plaintiff James Walsh against Edward Fitzpatrick, one of the defendants in this action, the latter was arrested on the 5th day of June, 1877, under an order of arrest obtained by plaintiff against him in the action, and gave bail under the provisions of the Code of Civil Procedure then in force, the other defendants in this action, Charles Schulz and James Fitzgerald, becoming his sureties.

Submission of controversy upon admitted facts. The case submitted was as follows : “Philemon H. Frost, the plaintiff, claims to recover of Samuel McMillan, the defendant, S500 as damages for trespass.

<p>If, upon delivery of goods sold under an executory contract, the purchaser does not return or offer to return them, he cannot afterwards, on the ground that they are not of the kind or quality contracted for, recover ' damages, or, in an action for the price, recoup or set off the difference in value.</p> <p>It seems, that the only exceptions to this rule are cases of express warranty, or^f fraud, or where, from the nature of the contract, there could be no examination of the goods by the vendee. Per Charles P. Daly, Oh. J.</p>

The defendant employed one John F. Baker as his attorney to prosecute the plaintiff for alleged false and fraudulent representations in the sale of seventy-five shares of stock in the Cory Artificial Fuel Company. Baker sued the plaintiff, and the action is still pending. Before its commencement he received from the defendant seventy-five shares of the stock of said company as security for his professional services.

<p>Submission of controversy upon admitted facts.</p> <p>The case agreed upon was, that plaintiff demanded specific performance of a contract for the purchase of real estate by defendant from plaintiff, entered into between them, which was set forth; and defendant claimed that he should not be forced specifically to perform, because plaintiff’s title was not such that he could convey a good, clear, and indefeasible title in fee simple to said property according to said contract.</p> <p>The ease stated, as among the facts upon which the controversy depended, that plaintiff’s title was derived from a purchase made by him of the property under foreclosure sale by order of the Supreme Court, in an action in which he was one of the plaintiffs, and several persons named, being all the defendants in the action, were necessary and proper parties ; that “ the summons and complaint were, by the court at Special Term, September 15tli, 1879, ordered to be served on ” certain of the defendants named, “ as nonresident, by publication once a week for six successive weeks, etc., in the usual form; such publication was made in the two newspapers named in said order; ” and copies of the affidavit presented on making said order, the order, and the affidavit of mailing the same, were set forth.</p> <p>The order of publication commenced with a caption, as follows: “ At a Special Term of the Supreme Court of the State of New York held at the County Court House in the City and County of New York on the 15th day of September, 1879. Present—Hon. Theodoric Westbrook, Justice;” and was signed, “ T. R. Westbrook, J. S. C.”</p> <p>It further appeared from the case that certain of the defendants, against whom such service by publication was ordered, did not appear or answer in the action.</p>

The action was brought by plaintiff, as the payee named in the following instrument, to recover the sum therein mentioned from defendant upon its acceptance thereof : “ New York, Nov. 6th, 1882. “ To the New York Wood Turning Co.: “ On completion of the square turning machine made for turning newels (Machine No. 2), please pay to Benjamin Fox, and charge to me on account of said machine, the sum of one hundred and one dollars and 25-100, a note of $100, now in the hands of…

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

<p>In an action to recover money paid by plaintiff upon a contract for the sale and conveyance to him by defendant of real estate, a counterclaim by defendant for specific performance of the contract by plaintiff may properly be set up in the answer.</p>

of the City Court of New York affirming a judgment of that court entered upon a verdict rendered by direction of the court. The facts are stated in the opinion.

<p>Defendants, who were warehousemen, received from plaintiff for storage, a trunk containing clothing and other articles, all, at the time of delivery to them, in good order and condition. When the trunk was returned by them to plaintiff, about five weeks afterwards, the contents were saturated with water, and so soaked, mildewed, and some of the articles so rotten, as to indicate either that the trunk had been immersed in water or that the water had permeated it gradually. Held, that these facts warranted the presumption that there must have been a want of ordinary care on the part of defendants while the trunk was in their custody, and that, in the absence of any explanation by them of how the injury occurred, they should be held liable to plaintiff for the damage therefrom.</p>

The defense demurred to was, substantially, that, at and prior to the time of the commencement of the action; one Edward H. Strobel, one Austin Huntington, and one George A. Miller were attorneys and counselors at law in the State of New York, and that said Miller was the attorney for the plaintiff in this action; that Huntington, as an inducement to the placing, or in consideration of having placed, in his hands or in the hands of Strobel or Miller the demand alleged in the…

<p>Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion to vacate an attachment.</p> <p>The facts are stated in the opinion.</p>

<p>Upon a sale of negotiable paper by one having possession without right or authority to sell, to establish bad faitli on the part of the purchaser, as against the rightful owner, it-must appear, not only that he had notice of facts that would put a prudent man upon inquiry, but that he knew of facts that would necessarily lead the mind to believe that the seller was disposing of the paper without lawful authority.</p>

<p>An order of the General Term of the City Court of Mew York reversing an order of that court striking out a portion of an answer as irrelevant and redundant, is not appealable under section 3191 of the Code of Civil Procedure; such order merely affects a mode of procedure, and does not deprive the plaintiff of any substantial right or touch the merits of his case.</p> <p>It seems, that a denial in an answer of knowledge or information sufficient to form a belief, “as to each and every allegation” in the complaint not specifically denied, is bad, as containing a negative pregnant.</p>

Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

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

Exceptions taken at the trial of an action in this court directed to be heard at the General Term. The parties to the action were the owners of adjacent premises supported by a party wall. The defendant employed a contractor to make certain alterations in her house which included the lowering of the beams of the first floor whereby it became necessary to cut into the foundation in her own side of the wall several inches for each beam.

The action was brought by a lessor against a lessee to recover damages for breach of a covenant in the lease to surrender the demised premises at the expiration of the term in the same condition they were in at the execution of the lease, and a covenant to pay the rent or charge upon the premises for Croton water during the term.

The action was brought to recover the sum of $525 and interest, rent due December 1st, 1882, in advance, on a lease of premises known as No. 129 Fifth Avenue, in the City of New York, made by Mary A. Kieff to L. C. Cocks for a term of eight months from September 1st, 1882. The lease was assigned to plaintiff on December 14th, 1882.

<p>Appeal from an order of the General Term of the City Court of New York affirming an order of that court vacating a judgment.</p> <p>The facts are stated in the opinion.</p>

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

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

The facts are stated in the opinion and in the report of the decision upon a former appeal in the same case (see 12 Daly 332).

<p>In an action against an elevated railway company for causing the death of plaintiff’s intestate, it appeared that deceased, while in the employment of defendant, had occasion to cross the track by a footway from which a flight of steps provided by defendant for the use of its employes, led to the station platform; and, while he was on the steps, he was struck by one of defendant’s engines and killed. It was at a time of night, when no regular trains were run upon the road. There was evidence that, before the accident, one of the steps was in an unsafe condition, that defendant’s attention was called to the fact, and that it failed to make them safe. When deceased was found after the accident, he had in his hand a piece of the defective step, and the lower part of the flight of steps had been carried away. No one was on the station platform, and the engineer of defendant’s locomotive, the only witness of the occurrence, testified that all he saw was an object coming out between the station platform and the structure; he could not tell what it was. Held, that, in view of all the circumstances, it was for the jury to determine whether the deceased was chargeable with contributory negligence; and their finding that he was not should not be disturbed upon appeal.</p>

<p>The fact that actions are pending in another court against an assignor and assignee under a genera] assignment for benefit of creditors, to set aside the assignment, is not a bar to a proceeding in this court to compel the assignee to account; nor does it present a reasonable excuse for delaying the account.</p>

<p>Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the decision of a justice upon trial without a jU]7-</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from a judgment of the District Court in the City of New York for the Seventh Judicial District entered upon the verdict of a jury.</p> <p>The facts are stated in the opinion.</p> <p>William A. Keeler and Jacob A. Gross, for appellant.</p> <p>Simon Greenbaum, for respondent.</p>

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

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

The action was brought to recover from defendant, as president of the Turtle Bay Park Association, Limited, an installment of salary alleged by plaintiff to be due to him for services… Held: subscriptions to the joint capital stock made, president, treasurer, and other officers were appointed, and under such organization business was actually carried on for a considerable time. Plaintiff was elected manager at a salary of $100 a month, and served as such for several months.

<p>Appeal from an order of this court granting leave to prosecute the official bond of a marshal of the City of New York.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover the possession of a certain printing press, of which, the complaint alleged, plaintiff was the owner, and which plaintiff had leased to one Landman by a contract in writing, a copy of which was annexed to the complaint. The substance of the contract is stated in- the opinion. The complaint further alleged that defendant had become possessed of and wrongfully detained the printing press from plaintiff.

Case submitted on a statement of facts agreed upon. The question submitted was as follows: Is the act, chapter 279 of the Laws of 1884, valid and sufficient to authorize the Board of Estimate and Apportionment to fix the fees, percentages and allowances of the plaintiff during his term of office at the rates set forth in their resolution of December 29th, 1884, for services thereafter to be rendered ? The facts upon which the question arose are stated in the opinion.

Exception to the dismissal of a complaint at the trial of an action in this court, ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.

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

The summary proceeding was brought by Elias M. Sperling, as landlord, to remove Michael Isaacs, as tenant, from certain premises, for non-payment of rent. Upon the return of the precept, Isaacs appeared and answered, and Timothy S. Brown and others intervened and filed an answer denying the facts alleged in the petition, and setting forth that they, and not the petitioner, were the owners of the premises, and that Isaacs was their tenant, and not the tenant of the petitioner.

<p>In an action for the conversion of a quantity of household furniture of a certain value, and for insulting and abusing plaintiff and injuring her premises and other property, to her damage in a sum alleged, defendant did not demur for the misjoinder of causes of action, which appeared upon the face of the complaint. His answer contained a general denial, and justified the taking of the furniture under a chattel mortgage. Held, that the denial of a motion made at the trial to compel plaintiff to elect for which cause of action she claimed to recover, and of a motion to strike out allegations of the complaint, was not error.</p> <p>Upon the trial it appeared that plaintiff, in March, 1881. had purchased from defendant the furniture alleged to have been converted by defendant, paying a part of tbe price in cash, and giving for the balance the mortgage under which defendant justified the taking upon the ground of a default by plaintiff in the payment of installments of the price to secure which the mortgage was given. Held, that evidence of defendant’s representations as to the character of the furniture at the time he sold it, and of promises by him to repair it, was admissible, as explaining the suspension of the payment of the installments, and as bearing upon defendant’s intention as to an alleged waiver of the default; that evidence as" to the intoxication of defendant when he came to remove the furniture was admissible, as affecting the reliance to be placed upon his version of the transaction; and that testimony as to the breaking of locks and interference with property not belonging to him was admissible, as sustaining the claim that property was taken by him belonging to plaintiff and not covered by the mortgage.</p> <p>A demand by defendant, made after the default, for payment of the installments due, was a waiver of the breach of the condition of the mortgage; he could not afterwards recall the waiver and insist upon the forfeiture. After such demand and an offer on behalf of plaintiff to pay the amount demanded, defendant had no right to take the property; and for such taking plaintiff would be entitled to recover the value of the goods so converted at the time of the conversion.</p>

The action was brought by plaintiff on his own behalf and on behalf of other creditors of Joseph Kuntz and Louis F. Kuntz, who had been co-partners in business under the firm name of J. & L. F. Kuntz, and who had entered into a composition agreement with their creditors, including plaintiff, whereby they agreed to pay to each creditor in full satisfaction of bis debt one third of the amount due to him, in their notes, to be indorsed by their father, Michael ICuntz.

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

<p>• Appeal from a judgment of the District Court in the City of New York for the Eighth Judicial District.</p> <p>The facts are stated in the opinion.</p>

<p>In an action for injuries occasioned by the taking or impairing of easements appurtenant to real property owned by tenants in common, and by maintaining a continuing nuisance to the same property, in which it appears from the complaint that one of the plaintiffs sues, as executrix, in respect of injuries during the life-time of her testator, and also, as his devisee, in respect of injuries since his death, the other tenants in common being all properly joined as plaintiffs, the complaint is not demurrable on the ground of misjoinder of parties plaintiff.</p>

<p>Application for discharge of a debtor imprisoned, under execution.</p> <p>The facts are stated in the opinion.</p>

<p>Application for the removal of an assignee under a general assignment for benefit of-creditors.</p> <p>The facts are stated in the opinion.</p>

Application to compel payment, by an assignee under a general assignment for the benefit of creditors, of a claim preferred in the assignment. The facts are stated in the opinion.

<p>Pending the trial of an action before a referee, plaintiff, upon leave granted, served an amended complaint, to -which defendant demurred, and the issue of law arising thereupon was referred to the same referee. After hearing upon the demurrer, the referee reported that the demurrer should be overruled, and directed judgment for plaintiff, with leave to defendant to answer on payment of the costs of the action. Held, that the costs so required to be paid did not include an allowance under sections 3252, 3253 of the Code of Civil Procedure, as the judgment on the report was not a final judgment; and that only costs accrued since the filing of the complaint were included, and not costs arising under the former pleading.</p> <p>The time for which fees are to be allowed to a referee upon the trial of an issue of law, as time “ spent in the business of the reference,” under section 3296 of the Code of Civil Procedure, is a reasonable time for the examination of the questions of law submitted to him, to be determined by the nature of the case or the questions he had to pass upon.</p>

<p>After the death of one member of an insolvent co-partnership, an assignment of the co-partnership property for the benefit of creditors, with preferences, made by the surviving partners with the assent of the personal representatives of the deceased partner, may be valid, both as between the surviving partners and the creditors of the firm, and the surviving partners and the personal representatives of the deceased partner.</p> <p>One of the members of a co-partnership died, leaving a will, in which he named, as executors, one of his co-partners and another person; but the latter did not qualify as executor, and the co-partner named became the sole acting executor. After his death, and before the executor had qualified as such, the surviving partners, the firm being insolvent, made a general assignment for benefit of creditors, with preferences to a large amount. The partner named as executor united with the other surviving partners in the execution of the assignment, and the person named as his co-executor, but who did not qualify, advised and approved the assignment. Held, that upon these facts, the consent and sanction of the personal representatives of the deceased partner were sufficiently shown to sustain the assignment; and that their action in approving the assignment by the surviving partners was not in excess of their powers as executors, notwithstanding the statutory restriction (2 R. S. 71 § 16), that no executor named in a will, shall, before letters testamentary are granted, have power to dispose of or interfere with the estate of the testator.</p> <p>An assignment by co-partners for the benefit of their creditors is not rendered invalid, by a provision authorizing the assignee to sign the copartersliip name to checks, drafts, etc., where, by the terms of the assignment, this can only be done when it is necessary to carry into effect the object, design, and purpose of the trust, and wheresueh power can only be used in the interest of the estate and of the creditors.</p> <p>The rule that a declaration of a grantor, made after his conveyance, cannot be given in evidence against the interests of a third party under it, applies to admissions by assignors in an assignment for benefit of creditors, of fraudulent acts on their part tending to vitiate the assignment.</p>

<p>By the conditions of a chattel mortgage, if the mortgagors should, at any time before the day of payment of the mortgage, suffer any attachment to be issued against them, the sum of money mentioned in the mortgage was to become instantly due and payable, and the mortgagee was authorized to take the property, to sell and dispose of it, and out of the proceeds to retain and pay the amount of the mortgage and all charges, rendering the surplus, if any, to the mortgagors. An attachment was subsequently issued against the mortgagors, and levied upon the mortgaged property. Held, that the mortgagee was entitled to recover from the sheriff the possession of the property, or of a check for the amount of the value of the property, which, by arrangement between the parties, was substituted for the property, under an agreement that it and the money it represented were to remain the property of the mortgagee, subject only to any valid and subsisting lien upon the property.</p>

Appeals from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury, and from an order of the General Term of that court, affirming an order granting a re-taxation of costs. The facts are stated in the opinion.

The complaint alleged the delivery, between March 30th and April 3d, 1885, by plaintiff to defendant, “who during that time was a commission merchant,” of 170 sheep and lambs to be sold for plaintiff for cash, and after deducting defendant’s commissions of 20 cents a head, to pay the balanee of the price to plaintiff; that defendant sold the sheep and lambs for $724.35, which he received; that his commissions amounted to $35.40, leaving due to plaintiff $688.95, which…

<p>An executor is not liable to an undertaker for necessaries furnished by the latter for the funeral of his testator, although he may have assets of the estate sufficient to pay the claim, where the funeral was ordered by and i-he credit given to another person.</p>

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

<p>Appeal from a judgment of the District Court in the City of New York for the Sixth Judicial District.</p> <p>The facts are stated in the opinion.</p>

This action was brought by the plaintiffs to recover an amount due for goods sold and delivered to the defendant.

The complaint alleged that on October 15th, 1873, defendants delivered to plaintiff their certain bond, conditioned for the payment of $19,000; that $12,000 remained unpaid; and demanded judgment therefor.

Appeal írom a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial, and from a subsequent judgment entered upon the dismissal of the complaint on a new trial.

1 Appeal from a decree of this court confirming the report of a referee upon a final accounting by assignees under a general assignment for the benefit of creditors. The facts are stated in the opinion.

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

<p>Plaintiff, who was an attorney, having acquired knowledge of an old and unclaimed deposit in a savings bank, induced the defendant, one of the next of kin of the depositor, and who was wholly irresponsible and insolvent, to procure himself to be appointed administrator ; and an agreement was entered into between them, by which plaintiff was to receive half of the fund as compensation for disclosing its existence and for necessary legal services in securing it. Defendant, however, after-wards refused to collect the money or to make the payment to plaintiff agreed upon. Held, that plaintiff was not entitled, upon a complaint alleging these facts, and the insolvency of defendant, and that he refused and neglected “in fraud of plaintiff’s rights” to take or receive said money or to pay plaintiff, to recover a judgment against defendant for one half of the fund to be paid out of the estate.</p>

<p>Appeal from a judgment of the District Court in the City of New York for the Seventh Judicial District.</p> <p>The facts are stated in the opinion.</p>

The work stated to have been done by plaintiffs was the furnishing of stoops and railings; the debtors of plaintiffs were alleged to be Peter McCormick andWiHiam H. Hall, and the reputed owner of the premises was alleged to be WilRam H. Hall; and it was set forth that said McCormick agreed to pay plaintiffs for the work and materials. Upon trial by the court without a jury, the complaint was dismissed and judgment for defendant was thereupon entered.

<p>Appeal from an order of this court referring an action to a referee to hear and determine.</p> <p>The facts are stated in the opinion.</p>

The action was brought for a weekly payment under a written agreement by which plaintiff was to render services as salesman from May 11th, to December 31st, 1885, for the compensation of 5 per cent, commission on his sales, 3 per cent, on duplicate orders of his sales, and 3 per cent, on sales for any such customers of the house as he might influence to buy; with the privilege of drawing $25 per week, said amount to be deducted from his commission.

<p>Defendant and others, officers of the M. P. Life Insurance Company, wrote to certain trustees of the W. & O. Life Insurance Company, a letter, proposing, as the result of negotiations for the consolidation of the business of the two companies, the purchase, of the whole of the capital stock of the W. & O. Company by the M. P. Company, in which, after stating the methods of accomplishing and the purposes of .the proposed . consolidation, they said: “It need hardly be said, but for greater clearness we do say, and thereto pledge ourselves, that the contract obligations entered into by the W. & O. Company with its policy holders and others, of every name and nature, will be rigorously fulfilled to the same extent and in the same manner as if no change such as is contemplated should take place.” And at the end of the letter, in a distinct instrument signed by them, they wrote : “ We hereby individually and collectively guarantee the fulfillment of the agreement in the foregoing letter.” The W. & O. Company having appointed a special committee to consider and report upon the proposed fusion, another letter was addressed to such committee by the M. P. Company signed by defendant and another as officers, of the latter, in which, referring to their previous communication as containing a formal agreement to abide by the contract obligations of the W. & O. Company already existing, they said further: “ We repeat that pledge here, and add, that in our understanding, it embraces agreements with agents and others, as well as policy-holders.” The proposition thus made was accepted by the W. & O. Company and was carried out. The W. & O. Company was solvent at the time; and soon afterwards, in consideration of the payment by it of a large amount of money, the M. P. Company agreed to assume all its liabilities. Nearly six years afterwards, both companies were dissolved, and at that time the assets of the W. & O. Company were insufficient to re-insure its oui£ standing risks, there being a large deficiency. Held that the owners of a paid up endowment policy of the W. & O. Company which became due after the dissolution, and upon which they had received dividends on the settling up of the affairs of that company, were not entitled to recover from the defendant, upon the guaranty signed by him with others, as above mentioned, the amount remaining due upon the policy .after deducting the payments received. The guaranty signed by defendant amounted to nothing more than an assurance to the trustees who were to obtain the stock required, and to the special committee to whom the matter was referred, that the new trustees who were to be appointed, and who were to have thereafter the control of the W. & O. Company’s affairs, would, in conducting its affairs thereafter, recognize and fulfill all its pre-existing contract obligations, whether to policy holders or to others; and did not bind the signers, unqualifiedly and absolutely, imder all circumstances, to pay all the policy holders of the W. & O. Company when their policies became due, or what might remain due upon them if the company should thereafter become insolvent and be unable to pay them.</p>

<p>Application to open a decree of this court entered upon the report of a referee upon a final accounting by an assignee under a general assignment for benefit of creditors.</p> <p>A citation was issued upon the petition of the assignee to all creditors and other persons interested in the assigned estate to attend his final accounting as assignee, but was not served on one Mrs. Durand, a creditor who was preferred in the assignment, but whose claim had not been presented to the assignee before the issue of the citation, although the time limited by the advertisement for creditors to present their claims, published pursuant to the provisions of the General Assignment Act, had expired. The accounting was referred to a referee, and his report ivas confirmed and a final decree entered thereupon; but after the entry of the decree, Mrs. Durand applied to have the decree opened and the accounting remitted to the referee, and to be allowed to be heard thereon before him.</p>

Trial of an action to set aside an agreement and for an accounting. The action was brought for an accounting between co-partners and to have an agreement, made on January 24th, 1884, by which plaintiff transferred to defendant his share of certain merchandise of the firm, declared void for the fraud of defendant.

The plaintiff foreclosed a mortgage which she held upon premises in the City of New York, and under a decree in foreclosure therein the same was sold on May 2nd, 1879, at public auction, for $2,100, to John H. Belter, her son, who subsequently assigned his bid to the plaintiff. The defendant was present at the sale, and immediately thereafter the plaintiff went into possession and has so remained. She has since paid the taxes and made improvements exceeding $1,000.

<p>Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon an order overruling an answer as frivolous, and affirming said order.</p> <p>The facts are stated in the opinion.</p>

<p>It seems, that the provision of the act of June 9th, 1885 (L. 1885 c. 456 § 22) requiring buildings to be kept provided with metallic leaders for conducting the water from the roof, applies to buildings erected before the passage of the act as well as to those erected subsequently.</p> <p>Under the further provision of the act “that in no case shall the water from the said leaders be allowed to flow upon the sidewalk, but shall be conducted by drain-pipe or pipes to the sewer,” an owner of a building erected prior to the act who permits water from the roof to be discharged from the mouth of the leader upon the public highway, is liable to the penalty imposed for a violation of the act.</p>

<p>Appeal from an order of the General Term of the City Court of New York affirming an order of that court directing the repayment by defendant’s attorney of a sum of money paid to him by the clerk under a previous order of the court.</p> <p>The facts are stated in the opinion.</p>

The action was brought against sureties upon a lease, to recover rent accruing under the lease. The plaintiffs’ testator, Peter Townsend, owned the premises known as No. 129 Fifth Avenue, in the City of New York, and by a lease dated April 19th, 1881, demised the same to Mary A. Kieff until May 1st, 1883, at a monthly rental of $250.

<p>In an action against the owner of a building in the City of New York, for damages for personal injuries sustained by plaintiff by falling into a coal-hole in the public sidewalk in front of the building, it appeared that the coal-hole had been maintained, for nearly eighteen years, in its position on the inner part of the sidewalk of a crowded thoroughfare, without any permission or license therefor, and that it was left unprotected by any crib or curb while open; that at the time of the injury to plaintiff it was open and used for the purpose of putting in coal on behalf of lessees of the premises from defendant; and that the janitor of the building, who was an employe of defendant as well as of the lessees, was present when the hole was opened, and did nothing to render it secure while in use. 3eld, that defendant and his lessees were all responsible for continuing the nuisance, and the fact that the injury occurred by reason of the tenants’ use of the coal-hole, not the defendant’s, was not ground for a motion by him to dismiss the complaint, or for exceptions to the judge’s charge.</p> <p>The provisions of the ordinances of the City of New York requiring the inclosure of openings on the sidewalk by a box or crib are not to be construed as implying that such box or crib shall not be in place when the opening is in actual use.</p>

The action, was brought originally against J. Morgan Howe to recover for broker’s commissions on the sale of a house and lot in the City of New York. Morris B. Baer and Morris B. Bronner, composing the real estate firm of Morris B. Baer & Co., had also claimed the same commission. Howe obtained an order to show cause why they should not be substituted as defendants in his place.

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

<p>Appeal from a judgment of this court entered upon the decision of the court at a trial without a jury.</p> <p>The action was brought to foreclose a mortgage of real property situated in the City of New York.</p> <p>On September 8th,. 1884, John Coar and Mary Jane Coar, his wife (the appellant), executed a mortgage to one Frederick C. Walker to secure the payment of the sum of $7,000, with interest, which mortgage was recorded September 12th, 1884. Coar was the owner of the fee, and on September 10th, 1884, executed a deed of the mortgaged premises to one Alexander Marshall, which was recorded September 13th, 1884. On September 10th, 1884, Marshall and his wife executed a deed of the mortgaged premises to Mary J. Coar, the appellant, which deed was not recorded until December 23d, 1884. The mortgage was assigned by Walker to the plaintiffs October 14th, 1884, and the assignment was recorded October 15th, 1884.</p> <p>At the time of the assignment of the mortgage, Coar, the mortgagor, executed and delivered to the plaintiffs the following certificate:</p> <p>“I, John Coar, do hereby represent to E. H. Purdy & Co. that the bond and mortgage made by me to Frederick C. Walker, dated September 8th, 1884 (the mortgage having been recorded in the office of the Register of the County of New York on the 12th of September, 1884, in Liber 1873 of Mortgages, page 419), are valid; that there is unpaid and to become due thereon the sum of seven thousand dollars, with interest from September 8th, 1884, and that there is no offset thereto or legal or equitable defense as against the same.” 3</p> <p>The appellant was the only party defending the action, claiming that the bond and the mortgage in which she joined were delivered without consideration; that she signed the same supposing that it was made and delivered for the consideration therein named, and that the plaintiffs paid no consideration for the assignment.</p> <p>At the trial the court rendered a decision for plaintiffs, and judgment was entered thereupon for plaintiffs for foreclosure and sale of the mortgaged premises. From the judgment the defendant Mary J. Coar appealed.</p>

The action was brought for the breach of a copartnership agreement “ that neither of the members of the copartnership of A. Sinsheimer & Co. should indorse the firm name aforesaid upon any promissory note.” The copartners were the defendant Galitzenstein and A. Sinsheimer, the plaintiff’s assignor. The answer was a general denial. At the trial the jury found a verdict for defendant. From the judgment entered upon the verdict plaintiff appealed.

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

The action was brought to recover a penalty. No designation to serve the summons, of the process-server by whom it was served on defendant, was indorsed on the summons, but his general appointment in writing by the Corporation Attorney was filed in the office of the Clerk of the Court. The justice, notwithstanding defendant’s objection, held this a sufficient compliance with the law and rendered judgment for plaintiffs. From the judgment defendant appealed to this court.

'■ Appeal from an order of the General Term of the City Court of New York affirming an order of the Special Term of that court, upon appeal from taxation of costs by the Clerk. The clerk had taxed costs in favor of plaintiff up to the time of the service of a written offer of judgment, and in favor of defendant John E. Quackenbush after such offer. The Special Term directed full costs to be taxed in favor of plaintiff against said defendant.

The action was brought to recover $1,827, balance due plaintiffs for losses incurred in transactions in grain and corn speculations conducted by them for defendant. The complaint alleged an account stated on February 6th, 1883, with balance of $6,693 found due to plaintiffs. The answer sets up: 1.

The action was brought for goods sold and delivered by plaintiff to defendants as co-partners under the firm name of A. & K. Flynn. The firm was composed of Alicia Flynn, Kitty Flynn and Patrick Farrelly. Defendant Farrelly served an answer setting up as a defense that he was a special partner under an agreement and certificate of limited partnership between Mm and his co-defendants, made in New Jersey, in accordance with the laws of that state.

Appeal by plaintiffs from an order of the General Term of the City Court of New York, reversing a judgment of that court entered upon the verdict of a jury rendered by direction of the court. The action was brought for the conversion of three horses. The defendant, a livery stable keeper, claimed a lien upon the horses for their keep from February to June, 1884, inclusive, under a contract with the owner, D. M'.

Appeals from a judgment of this court entered upon the dismissal of a complaint at the trial and from an order denying a motion for a new trial.

On January 7th, 1884, Morris Wolff and Martin Kahn, co-partners, under the firm name of M. Wolff & Co., made an assignment for the benefit of their creditors to Gustav Gomprecht, a brother-in-law of said Morris Wolff. The assignment contained preferences aggregating $83,469.05; one of the preferred claims was that of L. Schoolherr, who was the father-in-law of said Martin Wolff and of said Gustav Gomprecht, and a partner in business of the latter, for $22,621.39.

<p>Defendant agreed to loan to S. a sum of money upon certain unfinished houses, to secure which loan S. made to defendant a bond and mortgage, in which the loan was spoken of as being for advances by defendant to S. “ to aid her in completing the four dwelling houses now in course of erection upon the lands described in the mortgage.” S., before receiv- • ing the whole amount, gave to plaintiff an order from 'defendant forra sum less than the balance remaining in defendant’s hands, S. being at the time indebted to plaintiff to at least the amount of the order for materials already used in the buildings. Held, that the delivery of the order to plaintiff operated as an assignment of the fund to the amount specified; that the words of the bond and mortgage quoted above did not bind S. to any particular application of the money; and that even if they did she could properly use a part of the money in paying debts . already due for materials used upon the buildings.</p>

<p>In an action for divorce, a stipulation in writing was entered into between the parties that the right to a trial by jury be waived and that it be referred to a referee to take proof and report. Upon this an order was made referring the action to a referee to take proof of the facts stated in the complaint and report, with liis opinion thereon; and also to take proof of the service of the summons and complaint. Subsequently, defendant served a supplemental answer, upon, a stipulation between the attorneys for the parties that such supplemental answer be considered as denied by the reply and the issues thus raised be included in the order of reference already entered; and upon this stipulation another order of reference was entered, that the issues raised by the supplemental answer and reply be tried before the referee in like manner as if included in the original order of reference. Held, that as the intention of the parties was apparently to have the issues tried privately by a referee instead of in open court, an order might properly be made amending the order's of reference so that the action and all the issues therein should be referred to the referee to hear and determine the same and report thereon. .</p>

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

<p>Appeal from an order of this court in an action for divorce, striking out defendant’s answer containing substantially a general denial, on the ground that the defendant had failed and neglected to comply with an order of the court, directing the payment of alimony, referee’s and counsel fees.</p> <p>The facts are stated in the opinion.</p>

<p>By an agreement for separation of husband and wife, which recited that it was made between the husband and wife, as principals, and plaintiff and another person named, as sureties, the husband covenanted to and with the wife and plaintiff, among other things, to pay to plaintiff, for the support and maintenance of the wife and children, a certain yearly sum; and. plaintiff covenanted that he would indemnify the husband against all debts of the wife, then existing or thereafter contracted; and the other person named as surety covenanted that the husband should perform all of the conditions on his part, and particularly that he should pay the sum of money mentioned. Held, that the agreement was valid, and constituted plaintiff a trustee of an express trust, entitled to sue in his own name for a payment under the agreement.</p> <p>The complaint in such an action need not set forth facts showing the existence of grounds for a limited divorce; allegations that the parties, immediately after the execution of the agreement, acted upon it, and have since continued to do so, are sufficient.</p> <p>Such an agreement is not annulled by a decree of divorce obtained by the wife in another .state for cause exisiting prior to the execution of the agreement.</p>

The action was brought against James H. Coleman upon an instrument in writing, a copy of which is set forth in the opinion. Defendant having died after the report of the referee was filed, the action was revived and continued against James A. Eagan, his administrator, who appealed from the judgment entered upon the report of the referee.

<p>Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon an order overruling an amended demurrer to a complaint.</p> <p>The facts are stated in the opinion.</p>

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

<p>Plaintiff was employed as a broker, by defendant, to procure a purchaser for certain lots of land, and did procure a purchaser, who in good faith agreed to purchase the lots at the price and on the terms fixed by defendr ant; but defendant refused to sell them except subject to the right of a lessee of the premises to remove a stable which was thereon, no such condition having been made until after the purchaser had been procured. Held, that plaintiff was entitled to his commission.</p>

<p>At the trial of an action, testimony on behalf of defendant was admitted, without objection, contradicting a written contract relating to the same transaction, which was afterward introduced in evidence. Held, that it was error to refuse a motion subsequently made by plaintiff to strike out all testimony at variance with the written agreement, and a request by him for an instruction to the jury to disregard such evidence.</p>

<p>Appeal from a judgment of the General Term of the City Court of New York reversing a judgment of that court entered upon the decision of the judge upon a trial by-the court without a jury.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the following opinion rendered on the application for the removal of the assignee at the Special Term, January, 1886.

<p>Appeal from a judgment of tlie General Term of the City Court of New York, affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial.</p>

The action was brought to recover damages for injuries to the person of plaintiff, caused by the bite of a dog alleged to have been kept by defendant. At the trial the jury found a verdict for plaintiff, and a motion by defendant for a new trial was denied and judgment for plaintiff entered upon the verdict.

The action was brought to foreclose a mechanics’ lien for work, labor and materials. The lien was filed July 19th, 1884, for the sum of $7,017.98, a balance claimed to be due plaintiff for the reconstruction of certain premises in West 35th Street. Plaintiff claimed on a quantum meruit.

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

<p>A certificate of the formation of a limited partnership was executed by one only of the general partners, before the special capital was paid in, and two days afterwards the cash was paid, the certificate was executed by the other general partners and the special partner, and the affidavit required by the statute was filed. Held, that this was a sufficient compliance with the statute, and that the special partner could not be held liable as a general partner on the ground of the falsity of the certificate at the time of its execution by the first general partner; since the certificate could not be said to be made until all the parties executed it.</p>

<p>Appeal from an order of this court denying a motion to cancel a lis pendens.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover rent under a lease. Upon trial before a jury in the district court, the justice directed the jury to find a verdict for plaintiff, and judgment for plaintiff was entered on the verdict. From the judgment defendants appealed. On the argument of the appeal the judgment was affirmed, but after entry of judgment thereupon a motion was made by defendants for a re-argument of the appeal, and was granted.

The complaint was dismissed upon the ground that it did not state facts sufficient to constitute a-cause of action. The action was to recover damages sustained by the levy of an attachment in an action brought by defendants against the plaintiff and others in the Supreme Court, which attachment had been vacated.

The action was brought to recover rent for the month of February, 1885, under a lease expiring May 1st, 1885, of apartments in the building known as the “ Sonny,” in West 57th Street in the City of New York. At the trial in the district court, the justice rendered judgment for plaintiff. From the judgment, defendant appealed to this court.

Appeals from an interlocutory judgment of this court sustaining a demurrer to a complaint, and from a final judgment sustaining said demurrer and dismissing the complaint, with costs. The facts are stated in the opinion.

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

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