Volume 14 — Abbott's New Cases

j George H. Higgins brought this action against Han-; nah W. Higgins, his wife, and others, to recover property and the proceeds of property, to which she had acquired title, directly or indirectly from him, under circumstances which appear sufficiently in the opinion. Judgment below was for the plaintiff, and the defendants appealed..

Adam Turkes brought this action against Joseph Beis, to establish an equitable lien for unpaid purchase money upon a sale by him to defendant of certain leasehold property and to enforce payment of the same. In November, 1858, George Thorn and another obtained a lease of certain land in New York city for a term of years, and entered into possession and erected valuable buildings on the premises.

William Post sued Charles Kreischer and another, for the conversion of a large lot of oysters, which he had planted in Staten Island Sound, an arm of the sea, between high and low water-mark. On the trial it appeared that the plaintiff had planted oysters in the same locality for over twenty years.

Lucia Coulson sued Eliot B. Whiting, in the city court, and recovered judgment. Defendant appealed. The facts sufficiently appear in the opinion.

<p>Motion by defendants to strike out an amended summons and complaint.</p>

<p>Obber ob Judgment.—Amendment.</p> <p>An offer of judgment made by an attorney, without affidavit, to his authority, is not merely , irregular, but insufficient in substance, and a nullity not amendable.</p> <p>An amendment which virtually creates a new proceeding is not within the intent or spirit of- Code Civ. Pro. § 734, authorizing the court to amend proceedings.</p>

<p>Creditors’ Suit.—Pleading ; answering over after demurrer overruled.</p> <p>The mere rendering of a decision overruling a demurrer, with leave to answer in a specified time, is insufficient to fix or limit tfie time to so answer.</p>

<p>Pleading ; answer oe corporation.</p> <p>Under Code Civ. Pro., § 1768,—providing for an order directing that the issues in an action against a corporation be tried,—such an order is not conclusive, either on the question of the form of the pleading, or the sufficiency of the issue.</p>

<p>Discontinuance oe action.</p> <p>The fact that plaintiff has been permitted to withdraw a juror after the case has been partially tried, does not preclude him from discontinuing on payment of costs.</p> <p>Where he was allowed to withdraw a juror upon terms, among which was that the case should be set down for trial for another day, Held, that he still had the right either to proceed to trial on the adjourned day, or to discontinue upon payment of defendant’s costs.</p>

<p>Pleading; fobm of denial.</p> <p>A defendant who has information sufficient to form a belief as to facts alleged in the complaint, and desires to deny the same, may make such denial upon information and belief.</p>

<p>Motion to vacate order for the appointment of a receiver in supplementary proceedings.</p>

.Motion to vacate attachment. Plaintiff sued on a contract to sell and deliver machines to the defendant, on the defendant’s failure to receive and pay for the articles and obtained an attachment against defendant’s property as a provisional remedy under the Code of Civil Procedure.

<p>It is the absolute duty of a transfer agent in this State, of any moneyed or other corporation existing beyond the jurisdiction of the State, to exhibit at all reasonable times during the usual business hours, to any stockholder, -when required, the transfer-book and a list of the stockholders, if in his power so to do.</p> <p>A demand for the exhibition of the stock-book is not sufficient as a demand for the transfer-book.</p>

This was an appeal to the general term from an order of the special term refusing to vacate an injunction. Alfred A. Howlett, a shareholder of the Syracuse, Chenango & N. Y. R. R. Co., brought this action in its behalf (alleging its disability to sue, &c.), to restrain such corporation and its receiver, James J. Belden, from granting to the defendant, the N. Y., West Shore & Buffalo Rw.

The plaintiffs, who together constituted the firm of Muser Brothers, brought this action against Fanny Lewis, Joseph Lewis her husband, and others, to recover the value of certain goods alleged to have been stolen from plaintiffs and received and converted by the defendants. The answer admitted that Joseph and Fanny Lewis were husband and wife, and denied generally the other allegations of the complaint.

an order of special term denying defendant’s motion to dissolve an injunction. This action was brought by the First Reformed Presbyterian Church of York, against Samuel Bowden and others. The facts are stated in the opinion, and also stated, in some further detail, in our report of the previous decision by Mr. Justice Macomber, made on the previous motion to dissolve, founded bn plaintiff’s papers only, which will be found in 10 Abb. N. Q. 1.

Motion by defendants to dissolve an injunction granted by the county judge. Edwin Isham and others brought this action against Langley Fullager and others, to enjoin the defendants, who constituted a majority of the trustees of the First Presbyterian Church of Dunkirk, from continuing to maintain the defendant Adams as pastor of the church, and to restrain him from acting as pastor. The facts are fully set forth in the opinion.

The action was brought by the plaintiff, the Oregon Steamship Company, to recover $13,465.25 alleged to have been paid to the defendant George K. Otis, as plaintiff’s agent, by the U. S. government.

John Craigie and others brought this action originally against Brown Brothers & Co. to recover the proceeds of certain drafts.

Petition for leave to intervene and continue proceedings to compel an executrix to account. In May, 1874, John Fortune died, leaving a will wherein he provided for the support of his niece, Elizabeth' Connick. In September, 1883, Elizabeth, claiming that she had not been paid, began proceedings, to compel the executrix of John Fortune to account and pay the legacy.

The plaintiff, Levi H. Parsons, claiming to be a shareholder in the Varlmff Mining, Smelting and Milling Company, a corporation formed under the laws of the State of New York, brought this action against Joseph Hayes and others, president, and directors of such corporation. The complaint alleged, inter alia, that the corporation was under a disability to sue, by reason of being controlled by its directors, who were guilty of malfeasance in office.

This was an appeal from a judgment, of a referee in favor of defendants in this action, and in favor of Thomas Boyd in another action, dismissing the complaint. The defendants Louis Tim and others, copartners, having obtained an attachment against the property of Clinton II. Smith, in the hands of his assignee, John Gf. Smith (see 13 Abb.

<p>Replevin.—New Trial ; newly discovered evidence.</p> <p>A new trial because of newly discovered evidence should not be granted, where a witness for the applicant, upon the trial, who was the only person from whom such evidence could be obtained, was not interrogated upon the subject, even though before the trial, he had, upon inquiry by the applicant or his attorney, denied his ability to give the evidence. Legal diligence required that he should be interrogated upon the subject when he was a witness in the pase.*</p> <p>The rule that a new trial should not be granted because of newly discovered evidence, where it does not appear that the evidence, if given, would probably have changed the result of the trial,— applied.</p>

William M. Earl and another, who were stockbrokers in business under the firm name of Earl & Dayton, sued William H. Howell, upon a promissory note given by him to settle a balance due on account of operations in the purchase and sale of stocks, under an agreement, the substance of which appears in the opinion. The defendant claimed that the note was invalid because given in settlement of a wagering contract.

The village of North Tarrytown applied for a writ of certiorari to review the report of W. L. Cobb and others, commissioners appointed by the supreme court, awarding damages to Mary E. Clark, for a change of grade of the village street, in front of her premises. The facts appear in the opinion.

Trial by the court. Elizabeth M. Conkling brought this action against Henry E. Davies and another to annul a deed of settlement.

Motion by defendant for confirmation of referee’s report, &c. Cross-motion by plaintiff for judgment, &c. The action was brought to obtain a separation or' limited divorce. The defendant made default in answering, and an order of reference was made, after hearing counsel for both parties, to take proofs of the allegations in the complaint, and directing that the referee report such proofs to the court with his opinion thereon.