Volume 14 — Abbott's New York Practice Reports

Russell D. Miner brought an action in the Mew York superior court against Annie M. Beekman and others, to-redeem certain premises from the lien of a mortgage. The facts of the case were, that on Movember 3, 1838, Isaac M. Woolley, being owner in fee of the lands described in the complaint, mortgaged them to Leonard W. Lawrence, to secure one thousand dollars, payable Movember 3, 1839. On May 16, 1842, Woolley conveyed the same land, subject to that mortgage, to the plaintiff.

I. Appeal from an order requiring the plaintiff, a non-resident, to file security for costs. This was an action to obtain the delivery of certain personal property, valued at $150. The plaintiff had obtained the delivery of the property as a provisional remedy under the Code, upon an undertaking,- in the sum of $300, as prescribed in section 209 of the Code.

Demurrer to the complaint by the defendant, Jacob Hunter. The complaint alleged, that December 4,1843, the plaintiff recovered a judgment in the Supreme Court against John Sniffen, deceased, for $7,301.25; upon which, there was owing to' plaintiff $1,017.27, with interest; and that he filed a transcript thereof in Kings county.

William H. Baldwin, as receiver, sued John T. Martin and others in the New York superior court in November, 1867, to set aside, on the ground of fraud, an assignment made in… Held: in denying the motion, that the burden of proof, under the plea of the statute of limitations, was on the' defendant to show that the plaintiff had discovered the fraud more than six years beftife suit. The plaintiff had judgment, from which the defendant appealed to the court at general term.

<p>Motion to sét aside a verdict.</p> <p>The facts are fully stated in the opinion.</p>

The defendant was tried in the Kings County Court of Sessions, Hon. Samuel Garrison, County Judge, presiding, on an indictment for seduction under promise of marriage.

Justification of bail. This action was the same as is reported in volume 13 of this series, under the title of People v. Tweed, pp. 25, 148. It now came before the court on the justification of the bail of the defendant Ingersoll.

The action was instituted by Dennis McNamara against Peter Eisenleff, under subdivision 10 of section 53 of- the Code of Procedure, to recover the possession of personal property claimed.

This action 'was brought by John Beisegel against the ¡New York Central' Railroad Company. Previous decisions are reported in 33 Barb., 429 ; 34 N. Y., 622 ; 40 N. Y., 9. The facts material to this decision appear in the opinion.

This action was founded upon a promissory note of §200, made by defendant, and payable to Isaac Bush, or order, ninety days after date, and dated July 17, 1852. The note was indorsed by Isaac Bush, and by him transferred to plaintiff, about the 12th or 14th of December, 1857.

The prisoner, John Gaffney, was indicted, tried and convicted at a criminal term of the Buffalo superior court, held in July, 1872, of the crime of murder in the first degree, and sentenced to be executed. A motion for a new trial was now made on a bill of exceptions, and also on the indictment, and affidavits alleging irregularities on the part of the jurors during their deliberations. The facts important to be considered will sufficiently appear in the opinion of the court.

<p>Recitals m Undertaking-.—Estoppel.—Fraud.</p> <p>Those who execute an undertaking are estopped from contradicting its recitals to defeat the instrument.</p> <p>In an action upon an instrument in the form of the undertaking required by the Code (§§ 240, 241) to be given on the discharge of an attachment, reciting the commencement of an action, the issuing of the attachment, and the making of application for its discharge;—Held, that the subscribers to the undertaking should not be allowed to show that recitals were untrue.</p> <p>Evidence of fraud on the part of persons other than plaintiff, without his privity, in procuring the execution of the instrument sued upon, is properly rejected.</p>

Alexander Folsom sued John Van Wagner to compel specific performance of an alleged agreement for the. sale of land in Columbia county of the value of twelve thousand dollars. The cause proceeded to issue, and was twice on the calendar at the Columbia circuit, and the defendant was ready for trial.

The defendant Mather had been arrested under an execution against the person, upon a judgment for $1,536.68. Held: raised no objections to the form of the application, but claimed the right of examining the petitioner and other witnesses as to the petitioner’s property. At the conclusion of the examination, the creditor opposed the discharge, on the ground, that certain transfers of the petitioner’s property were fraudulent as against creditors.

Motion to set aside, for irregularity, an order dismissing the complaint. This was an action upon a promissory note. In August, 1860, the plaintiff died. Ho order was entered continuing the action in the name of the representatives of the plaintiff. In January, 1861, the defendant, not having been apprised of the death of the plaintiff, took an order dismissing the complaint upon default. The plaintiff’s attorney makes the present motion.

<p>Nomsuit.—Dismissal eor Failure to briug- the Case to Trial.</p> <p>In actions where there is but one defendant, his only remedy for the failure of the plaiútiff to bring the cause to trial, is to notice it for trial on his part, and take judgment of dismissal if the plaintiff fail to appear when called.*</p>

Motion to set aside the settlement of a case as irregular, and to send it back to the referees for resettlement. This was an action of assumpsit, commenced in 1844. The action was delayed by the execution of commissions in Europe, and other causes, until April, 1854, when the issues were referred to three referees to hear and determine. The referees dismissed the complaint.

<p>Cause of Action.—Contributory Negligence.</p> <p>It is negligence on the part of a passenger, to get upon a street car that is already too crowded to allow him to ride safely.</p> <p>On a tempestuous night the plaintiff got upon a crowded car, on a street railroad. There being no room on the rear platform, he got on the front platform, from which he was pushed off, after the car was in motion, by the crowd in the car and on the platform. Held, that this was a case of contributory negligence on his part; and</p> <p>■ although there was probably negligence on the part of the company, he could not maintain an action against them for the injuries sustained by him.</p>

Motion to correct a verdict. The defendant alleged, in his answer, a tender before suit. With his answer he brought the amount tendered into court. The action was on a parol demise, which the plaintiff averred terminated on the first of May. This was denied by the defendant, who alleged that the demise terminated on the first of January.

Motions to dismiss two petitions to vacate an assessment for regulating and grading Second Avenue.

<p>Varying Written Agreement by Parol Evidence.—Former Adjudication.—Lien of Judgment. — Entry of Order.— Mistake in Amount due on Execution.</p> <p>The court will not on motion allow parol evidence to enlarge the operation of a written agreement between the parties to an action, so as to discharge the lien of a judgment upon real estate belonging to the person against whom the judgment was recovered.</p> <p>An omission to enter an order does not give the right to agitate the same question by a fresh motion. The unsuccessful party can enter the order when he desires to appeal, if the prevailing party omits to do so.</p> <p>Where a plaintiff had two judgments against the same defendant, upon each of which execution had been issued, and the court, after hearing the parties, had decided that the sum realized under the execution was properly applicable to ■one of the judgments,—Sdd, that such order was conclusive upon the parties unless reversed on appeal.</p> <p>Where an execution against property omitted to give the judgment-debtor credit for a payment which had been previously made upon the judgment, and real property was sold under the execution, hut for a sum less than the amount actually due upon the judgment,—Edd, that the execution was not void by reason of the omission, and that the purchaser’s rights under the sale were not to be disturbed.</p>

John O’Donnell filed, a lien under the mechanics’ lien law relating to the city of New York, against Joseph H. Rosenberg, owner of land and building in the city of Yew York; and George Graf also filed a lien against Louis Zaun and. Andrew Schappel, the contractors for the construction of the building.

This was an action to recover $500 for merchandise sold to the defendant. An order of arrest was issued on the ground of fraud in contracting the debt. The facts upon which the motion was based are sufficiently stated in the opinion.

Petition for removal of cause. George S. Levy sued Fitzgibbons and O’Neil for an accounting and settlement of the copartnership affairs of the firm of Levy & Fitzgibbons. The defendant O’Neil, being a non-resident, now applied on petition for a removal of the cause, as to him, to the United - States circuit court for the southern district of New York.

Motion to dissolve an attachment issued as a provisional remedy. The action was brought to recover the sum of $2,268.65 for goods, suitable for use in the manufacture of shirts and drawers, sold and delivered to the defendant.

• Motion for set-off. Samuel D. and Elbridge S. Hovey sued the defendants in this court for an injunction. The action was dismissed and the injunction dissolved ; and the defendants recovered judgment for their costs on the dismissal of the complaint. The previous proceedings are reported in 13 Abb. Pr. N. S., 360.

Bishop and Rhien sued Mrs. (Jarcia for goods sold, and recovered judgment on failure to answer. The judgment remaining unpaid, the plaintiffs ascertained that defendant had recovered a judgment in her own favor against one James Clute.

Motion to discharge an order of arrest. This action was brought to recover the price of a quantity of goods sold. An order of arrest was obtained on the ground of fraud in contracting the obligation, and also in attempting to dispose of property to defraud creditors. The defendants moved to vacate the order of arrest, upon affidavits contradicting the affidavits upon which the order of arrest was issued.

This action, and another one which was brought by George P. Haylor and others at the same time, were brought against Francis A. Hoffman, Otto Gelpcke, and Alexander Seller, who were partners in business in Chicago, Illinois. The causes .of action were partnership debts. The plaintiffs obtained attachments to be issued on the ground of the non-residence of the defendants.

<p>Negligence.— Burden of Proof.— Contributory Negligence. —Questions of Law and Fact.—Nonsuit.</p> <p>In an action by a manufacturer, against one from whom he purchased certain ingredients used in his process of manufacture, to recover damages for injuries caused by the negligent delivery to him of a substance different from that which he ordered, whereby the product for which he employed the ingredient was injured, the absence of contributory negligence on the part of the plaintiff must be proved by him, by direct evidence, unless it can be inferred from the facts and circumstances of the case.</p> <p>Where the servant of the plaintiff could, by slight attention, have perceived that the substance furnished was not the ingredient required, and - could thereby have avoided the injury, the plaintiff cannot recover.</p> <p>The evidence being undisputed, contributory negligence in such case is a question of law; and the complaint should be dismissed by the court at the trial.</p>

This was an action of ejectment for dower. William James Stewart, the husband of the plaintiff, died in 1823. During his lifetime, and after his intermarriage with the plaintiff, he was seized in fee of a tract of land including the premises in question. The premises in question are part of an old lane, known as Stewart’s Lane, which ran through the lands of James A. Stewart, the father of the plaintiff’s husband.

Demurrer to the complaint. This was an action by John A. Newbould against Thomas Warrin, Samuel Lord, William J. Lewis, and others.

<p>Motion for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Money Paid.—Validity of Assessment.</p> <p>One who sues to recover money which he alleges he paid by mistake in discharge of an assessment on defendant’s land, must prove the validity of the-assessment.</p> <p>The bill signed by a deputy collector of assesments is not evidence of the assessment, as against the defendant.</p>

Motion to vacate order of arrest for insufficiency of the affidavits on which it was granted. The action was brought by Frederick Muller against Augustin Perrin.

<p>Injunction.—Summary Proceedings to recover Possession of Land.</p> <p>An injunction will not be granted, before judgment, for.any purpose which can be attained by other ordinary process of the law.</p> <p>It ought not to issue for the purpose of restraining a judicial officer from transcending his jurisdiction; a writ of prohibition being the proper remedy in such a case.</p> <p>It should not require the performance of any act, but only forbid performance.</p> <p>It seem, that summary proceedings to recover possession of land can be restrained ' by injunction, only when they are used as means of fraud.</p>

Motion to compel amendment of a pleading. The action was brought by Eugene Pink against Emil Justh. It now came before the court on a motion to strike out parts of an answer as irrelevant or redundant ; also to require several alleged defenses to be separated; also to require parts of the answer to be made more definite and certain.

The action was brought by Francis Skinner and others against J. N. Oettinger and L. Goldstein. Upon affidavits showing that the defendants had assigned all their property for the benefit of creditors, giving preferences to certain persons, some of whom were their relatives, and tending to show that the assignment was fraudulent, plaintiff obtained an attachment. On affidavits denying fraud, the defendants moved to set aside the attachment.

Demurrer to answer. Noah L. Wilson, David Gibson, and William F. Roelofson recovered judgment on February 13,1866, in this court, in an action brought by them against William A. Hilyer, and William L. Yan Derzee, as persons jointly indebted upon contract. The' process was served upon Hilyer only, and judgment was entered against both, under the statute (Code of Pro., § 136, subd. 1).

The action was brought by Schieffelin, Dix, Gellatly & Westerfield against R. C. Hawkins, assignee, and P. and A. Duelos. The complaint set up facts which appear fully in the opinion of the court. To entitle plaintiffs to the set-off, their claim against the assignors must, at the' time of the assignment, have been a matured claim—one on which a suit at that date could have been brought against the assignors.

<p>Certiorari.</p> <p>Samuel M. Meeker procured the issue of a certiorari to remove to the supreme court proceedings had by the city of Brooklyn, in the matter of the assessment for the grading and pavement of Ralph Avenue. The grounds relied upon by the relator sufficiently appear in the opinion of the court.</p>

Frederick S. Winston sued Stephen English in this court, for damages for the publication of several alleged libels. An order of arrest was granted upon an affidavit, and the defendant was arrested. The summons was served at the same time. Immediately the defendant applied for, and obtained, an order for the examination of the plaintiff, with a view to ascertain information respecting the alleged libels, upon which to frame his answer.

This action was commenced in April, 1858, by the plaintiffs, a corporation created under the laws of the State of Connecticut. After being at issue, it was noticed for trial by both parties, and in January, 1861, was tried, the jury disagreeing. The plaintiffs suspended business in February, 1861, and subsequently all their property passed into the hands of a receiver.

Trial by the Court. This action was brought by Frederick Fairchild, as receiver of the property of Thomas Gwynne, against Thomas Gwynne, and J. A. Gwynne, assignee, to set aside a general assignment for the benefit of creditors, made by Thomas on the 2d day of May, 1860. This assignment was not acknowledged before delivery. It was proved by the subscribing witness on June 8, 1860.

Carrie L. Morgan sued Henry Whittaker, Jr., in the supreme court, to recover moneys alleged to have been paid to the defendant by one Moore for the use of, and to be paid over to, the plaintiff. The action was commenced by the service of a summons. Before serving a complaint, the plaintiff applied to the court upon an affidavit, for an order requiring defendant to appear for examination as a witness in the cause under sections 390 and 391 of the Code..

Motion to commit for contempt. This was an action by Jane Smith against William Smith, for a divorce. On the 9th of December, 1861, on the application of the plaintiff, an order was made, directing the defendant to pay a counsel-fee of $250 within ten days.

Benjamin Gr. Dusenbury, executor, &c., of Catherine Corwith, sued Mark Hoyt, in this court.

Demurrers to the complaint in two actions. These were two creditors’ actions: the first, brought by Alfred Field and others, against Isaac L. Hunt, George M. Chapman and Julia Ann Chapman: the second, by John Askham and others, against the same defendants.

Augustus Paul, an assignee for the benefit of creditors, brought this action against DeWitt Parshall and another defendant, to procure a judgment declaring an assignment of certain bonds and mortgages fraudulent and void, as against the creditors represented by the plaintiff, and for equitable relief.

Trial by the court. This action was brought by James McGay against Franz Keilback and Robert Reid. Reid was one of the constables of the city of Hew York, and, under an execution issued out of one of the district courts of that city against the property of one Linsheimer, seized certain personal property. The present plaintiff claimed the property, and Reid obtained from Keilback the ordinary indemnity bond and retained possession of the property.

John A. Moody sued E. B. Leverich and R. H. Allen, in the New York marine court, alleging that plaintiffs engaged him as superintendent of their machine shop for one year, at a yearly salary of three thousand dollars, payable in monthly installments of two hundred and fifty dollars, and wrongfully discharged him in June, 1870; that he had continued ready to serve, and had offered to do so ; that the monthly payments for September and October, 1870, were due him, for which he…

This action was brought by George Carter against Frederick Koezley, to recover possession of a lot of land in 83d street, in the city of Hew York, with damages for withholding. The answer set up, besides a general denial, the following defences : Second.

The relator, Eichard Hanrahan, procured, in May, 1859, an alternative mandamus against the defendants, The Board of Police of the Metropolitan Police District of the State of New York. Hanrahan had been a member of the Municipal police of the city of New York.

<p>Appeal from a judgment.</p> <p>Josiah B. Polk sued Augustin Daly on contract. The facts are fully stated in the opinion.</p>

The relator in this case, Henry Peck, had been a member of the Municipal police force of the city of New York, and obtained an alternative writ of mandamus against the Board of Police of the Metropolitan Police District of the State of New York, in May, 1859. The present case is in all respects similar to that of The People on rel. Hanrahan a. The Board of Police (Ante, 151), and the proceedings in both cases were identical.

This was an action against Lawrence, and Kelly, sheriff of New York county, to restrain such sheriff from selling partnership property of Mowbray & Lawrence, upon an execution against Lawrence alone. The defendant Kelly had demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and his demurrer was sustained. (See 13 Ante, 317.) The plaintiff’s motion for an injunction and receiver now came on for argument.

<p>Allowances.—Eund in Court.—Equitable Allowance for Counsel-fees.—Amendment of Judgment.</p> <p>The cases in which allowances are provided for in section 308 of the Code, are excluded from the operation of section 309 of the Code.</p> <p>The power of courts of equity to grant counsel-fees out of a common fund belonging to the parties to the action, as a part of the relief which should be given on the final disposition of the cause, is not affected by the Code.</p> <p>Provision, under the equitable power of the court, for the payment of counsel-fees out of a common fund belonging to the parties in the action, can be made only by the judge who tried the cause.</p> <p>The mistakes which may be amended under section 173 of the Code, do not include judicial errors in rendering judgment.</p> <p>In an action involving the construction of a will, the court have no power to amend the judgment after it has been entered, by inserting an allowance to certain of the parties, in addition to that given by § 308 of the Code, by way of indemnity to the expenses of the suit.</p>

The plaintiffs are the assignees in bankruptcy of Melancthon Inman, a bankrupt. This action is brought to set aside a deed from said Inman and wife to Hiram Priest, as being in fraud of the bankrupt law. The deed was dated January 18, 1871. The consideration expressed in it is six thousand six hundred and eighty dollars. Inman was declared a bankrupt on February 38, 1871, and the plaintiffs were appointed assignees on March 31 of the same year.

Motion by a receiver to punish for contempt the plaintiff who had brought this action against the receiver without leave, and to stay the proceedings in such action.

This was an action brought by John W. Barker and another, against William W. Wheeler, upon two acceptances made by him. The action was commenced on the third day of September, 1861, by the service of a summons and complaint, the latter containing no allegations of fraud. The plaintiffs procured an order of arrest against the defendant upon affidavits imputing fraud in contracting the debt.

The action was brought by Julius S. Gilman against Isaac J. Oliver. At the trial of the action, the court directed the employment of a stenographer, under section 256 of the Code—half the expense. to be paid by each party. On taxing the costs, the defendant, in whose favor judgment was rendered, claimed to be allowed the amount paid by him to the stenographer.

Demurrer to a complaint. This action was brought by George W. Platt, assignee of Rath an G. Platt, against Andrew Y. Stout, to recover the sum of $2,000 received by Stout for fees as chamberlain of the city of Rew York. The complaint averred that prior to the 14th day of May, 1860, the defendant was in possession of, and claimed to hold and administer the office of chamberlain of the city and county of Mew York.

. Appeal from an order. After issue joined in this action, plaintiff obtained an order under section 491 of the Code of Procedure, subd. 7, appointing a referee to take the affidavit or deposition of the defendant to be used in opposition to a motion by defendant for leave to serve an amended or supplemental answer.

This action was brought by Emile Yon Schoening against Andrew Buchanan and Thomas Mitchell, to recover personal property alleged, to be of the value of $60. The property was returned to the defendant on the usual undertaking. The jury found a verdict for the plaintiff, and assessed the value of the property at $40, but failed to find any damages for the detention of the property by the defendants. The defendants claimed their costs, and had them adjusted by the clerk.

This action was brought by Elias Fassett against Samuel W. Tallmadge and others, to set aside a conveyance made by a debtor of the plaintiff to Tallmadge, on the ground that it was fraudulent and void as to creditors.

<p>Parties.—Reviewing Election in Corporations.— Authority of Attorney.—Affidavit to be used on Motion.</p> <p>The remedies given by statute {Oode of Pro., § 432; 1 Bev. Stat., 603, § 5) for testing, by direct action for the purpose, or by a summary inquiry, the title of officers of a corporation, are exclusive.</p> <p>Persons, other than the defacto officers of a corporation cannot maintain an action in the name of the company, without its authority, for the purpose of indirectly trying the title to the offices by means of an action ostensibly brought to enforce an obligation in favor of the company. " ,</p> <p>The court will refuse to proceed in an action at the instance of an attorney who it appears has no authority fro.m the party he claims to represent.</p> <p>An order to take the affidavit óf a party to be used upon a motion is not a matter of right, but the court will determine as to the propriety of the examination upon the circumstances of the case.*</p>

This action was brought by Jeremiah W. Johnson against Abraham B. Conger and Mary R. Conger, his wife, to obtain the specific performance of a covenant to execute a renewal of a lease. The plaintiff was the lessee of the premises No. 25 Catharinestreet, in the city of New York, under a lease with covenants of renewal, and this action was brought to compel the defendants to execute a renewal lease and for an injunction.

George Philippi sued Gabriel Wolff, in the supreme court, for causing the death of Ms wife by willfully and maliciously procuring an abortion upon her.

Motion to set aside an execution against the person. The complaint stated that the plaintiffs were a religious corporation, and the1 defendant its treasurer. That as such treasurer he received certain moneys belonging to the plaintiffs, which they had demanded and the defendant had refused to pay, and had converted to his own use. The defendant, by his answer, put in issue the plaintiffs’ incorporation.

Trial by the court. This was an action for the partition of certain real estate situated in the city of Eew York, owned jointly by the plaintiff and defendants. The answer set up that the property in question was owned by the parties to the action as tenants in common. That the parties were partners in trade, and had carried on business on the premises in question, and that the property sought to be partitioned had been owned by them as such co-partners.

Motion to continue an injunction. William H. Popham sued William J. Wilcox and others, to enjoin them from infringing plaintiff’s trademark. The complaint alleged, that for upwards of twenty years the plaintiff has been engaged in the business of refining, packing and selling an article of merchandise, known as prime leaf lard.

<p>I.—Trial by the court.</p> <p>This was an action, by Alexander Matthews against The Mayor, &c., of New York, George A. Hoyt, Stephen J. Field, David Dudley Field, and Harriet D. Field, brought to restrain the Corporation from executing leases of four lots on 26th street, in the city of ¡New York, which had been sold for assessments, on three grounds: 1. That the assessments themselves were irregular and illegal. 2. That the proceedings to enforce them ■had also been irregular and illegal. 3. That since the sale the Corporation had sold the same lots for subsequent assessments to the landlord of the plaintiff. A demurrer was first interposed by the Corporation upon the ground that the court had no jurisdiction to grant relief. The demurrer was overruled by Mr. -Justice Davies. An answer was then put in, and the case tried before Mr. Justice Mullin.</p> <p>It appeared upon the trial that the plaintiff was the lessee from the defendants Field of one of the lots in question. That the defendants Field were the owners in fee of the four lots. That the Corporation had, in 1844, executed to the defendant D. D. Field a lease of these lots for seventy years for the unpaid taxes of 1837, 1838, 1839, and 1840. That the four lots were sold in one parcel, in June, 1856, by the Mayor, &c., of ¡New York, to satisfy two assessments for local improvements, one for the opening of Twenty-sixth-street, and the other for setting curb and gutter in the Eighth Avenue. It appeared that the assessments were confirmed in 1838.</p> <p>Upon the evidence which was adduced in regard to the proceedings taken by the Corporation in laying the assessments and conducting the sale, the following irregularities were claimed by the plaintiff as established. With regard to the opening of 26th street: 1. That there was no ordinance or resolution authorizing the opening. The one proved was passed in March, 1838, nearly two years afte'r the petition presented to the Supreme Court for the opening. The signature of the mayor to the petition was not enough. The statute required that the “ Mayor, Aldermen, and Commonalty, in Common Council convened,” should act upon the matter and direct the opening. 2. The petition to the Supreme Court and its order related to the opening of 26th street, from the Fourth Avenue to the Hudson river. The report and subsequent proceedings related to the opening of the street from the Bloomingdale Eoad to the Hudson river, and that there w^s, therefore, no application to the Supreme Court,,and no order of that court for the assessment which was actually made. 3. It did not appear by the report of the commissioners, that they gave notice of presenting it to the court in more than one newspaper. 4. The report of the commissioners did not set forth the names of the owners of the property, or declare that the owners were unknown. 5. The land taken and the land assessed belonged to the same owners. For taking their own land the owners were assessed $386.</p> <p>With regard to the Eighth Avenue assessment, the plaintiff objected that there did not appear to have been any ordinance or resolution of the Common Council authorizing it.</p> <p>With regard to the proceedings to collect the assessment the plaintiff claimed: 1. That there was no warrant to the collector to collect and receive the assessment. 2. That the affidavits of the collectors as to demand upon the owners were defective. 3. That though the lots were occupied at the time, no notice was left with the occupants. 4. That the notice of sale was defective, (1) in giving the date of confirmation of the 26th street assessment incorrectly; (2) in giving an erroneous description of the lots; and 5. That five lots were sold together for two assessments, while one of the assessments covered but three lots.</p> <p>II.—Appeal from a judgment.</p> <p>From the judgment entered upon the foregoing decision, the defendants, The Mayor, &c., of New York, appealed.</p> <p>I. The respondent shows no canse of action for an injunction. 1. The respondent avers that the two assessments were void. If he is correct, the lease to Hoyt would be a nullity. When a party claims title to or an interest in lands, under a lien or assessment sale, he is bound to show that every single step has been taken which the law prescribes; and if he fails to do so, he cannot obtain possession of the lands or of any interest therein. (Striker a. Kelly, 2 Den., 323; Doughty a. Hope, 3 Ib., 594; 1 N. Y., 79; Sharp a. Speir, 4 Hill, 76; Sharp a. Johnson, Id., 92; Leggett a. Rogers, 9 Barb., 406; and cases cited.) Mr. Hoyt will be obliged to resort to an action of ejectment, in which it will be incumbent on him to prove a strict compliance with every provision of the statute under which the sale was made. (Sharp a. Johnson, 4 Hill, 92, and cases supra.) 2. The notices to which the complaint refers are those prescribed by the 10th section of the act of 1839. (Davies’ Laws, 820.) The service of such notice is necessary to confer upon the Corporation the power to sell the assessed premises. The neglect to make such service nullifies the whole proceeding, and the case is brought, therefore, precisely within the doctrine laid down in the cases above cited. 3. The provision of the act of 1816, § 2, that “ the lease shall be conclusive evidence that the sale was regular” (Davies' Laws, 600), does not affect the case. That provision only refers to the regularity of the proceedings at the sale, or immediately preceding such sale. (Striker a. Kelly, 2 Den., 323.) 4. The decision is put partly upon the ground that there was a defect in the affidavit of the collector. If this is so, the defect is jurisdictional, and the case is brought in exact point with Striker a. Kelly, supra. 5. The case of Scott a. Onderdonk (14 N. Y., 9) does not affect this case, because in that case it appears that the Brooklyn assessment statute makes the execution of the lease prima-facie evidence of the validity of the assessment. 6. This is not a proceeding under eh. 338 of the Laws of 1858, and the provisions of that act have no bearing in this case.</p> <p>H. The allegation that the date of the confirmation of the assessment for the opening of 26th street was erroneously described in the notice of sale does not avail the respondent, inasmuch as it does not appear that he was in any way aggrieved.</p> <p>I. Since there are no findings of fact, the court must presume that the facts justified the legal conclusions of the special term. (Viele a. Troy & Boston R. R. Co., 20 N. Y., 186; Carman a. Pultz, 21 Ib., 547; Grant a. Morse, 22 Ib., 323.)</p> <p>II. The assessment for opening 26th street was illegal and void for the reasons urged in the court below. (Davies’ Laws, 528, 529, 532, 537; Platt a. Stewart, 8 Barb., 493.)</p> <p>III. The Eighth Avenue assessment was illegal and void. (Davies’ Laws, 526, § 175.)</p> <p>IV. The proceedings to collect both assessments were irregular and illegal. (Davies’ Laws, 598, § 1; Ib., 599; Ib., 820, § 10.</p> <p>V. The court had jurisdiction to vacate these assessments and subsequent proceedings, and to restrain the giving of leases. 1. Such was the law before the statute of 1858, because the giving of leases would have created conclusive evidence of the regularity of the proceedings, contrary to the fact. (Davies’ Laws, 600; Scott a. Onderdonk, 14 N. Y., 9.) 2. The act of 1858 would have given jurisdiction if there had been none before. (Laws of 1858, ch. 538.) This act does not specify the manner in which the assessments are to he attached and set aside. It only provides that the party aggrieved may apply to a judge of the Supreme Court. A complaint is an application. (Morgan a. N. Y. & Albany R. R., 10 Paige, 290.)</p> <p>VI. There was also another and independent ground of interference, and that was the fact that the Corporation had after-wards sold the same property for taxes subsequently laid, and given a conveyance to the landlord of the plaintiff. It would, therefore, be most inequitable for the Corporation to grant another lease, covering, in part, the same period of time, and tending to destroy the title which they had given. A court of equity will not allow a vendor or lessor thus to embarrass his vendee or lessee.</p>

This action was brought by Simon Ferner and Hymes Kraushaar against Alfred L. Williams, upon two promissory notes of R. H. Gibson & Co., indorsed by Williams. These notes were by their terms payable at the office of the makers, 94 Woodward Avenue, Detroit.

This action was brought by Dennis McMahon, Jr., assignee, &e., against Thomas E. Allen, to set aside a conveyance made by one Charles T. Harrison to Allen of an undivided half of a life-interest in a house and lot in Houston-street, in the city of New York. The action was commenced in March, 1853. In September, 1858, and before final judgment in the cause, an order was made by consent, appointing William Tucker receiver of the rents and -profits of the property.

I. February, 1862.—Appeal from an order setting aside an execution issued by the defendant upon a judgment entered in his favor for costs.

Charles P. Livermore and others were plaintiffs in this action against Henry Bainbridge and another, executors, upon an account stated, growing out of the dealings of the plaintiffs with defendants’ testator, as his stockbrokers. The referee to whom the cause was referred, reported, after a protracted trial, in favor of plaintiffs. Defendants moved to set the report aside, and the motion was granted. Plaintiffs appealed.

This was an action by Richard Bortle and another against William H. Mellen and another, upon a bond given on the discharge of a steamboat from attachment. The cause was tried before a referee, who rendered judgment for the plaintiffs. The defendants’ counsel procured various extensions to serve exceptions, until sixty days after notice of the entry of judgment.

This action was brought by Peter J. Ackerman against John P. Ackerman, upon two bonds amounting to $4,200. Judgment was recovered in favor of the plaintiff, on failure to answer, on October 13, 1860, for $4,565.89, damages, and $17.73, costs.

<p>Attachment in Justices’ Courts.—Jurisdiction.—Constable’s Return.</p> <p>Before a justice of the peace, or a district court of the city of New York, can acquire jurisdiction to proceed to trial in an action commenced hy warrant of attachment, the return of the officer serving the attachment must show a strict compliance with the statute: especially where the defendant has not appeared.</p> <p>In cases of attachment issued out of a justice’s court, or district court of New .York, service of the attachment and inventory upon a person in charge of the property attached is insufficient, unless it appears affirmatively that the defendant has no place of residence within the county.</p>

<p>Andrew W. Billings sued William Smith O’Brien, in the third district court of New York, for conversion of fifty-eight dollars and thirty-one cents, a share of* defendant’s pay as a customs officer, which he had bought of defendant, and which he alleged defendant had collected and converted to his own use instead of paying over.</p> <p>The answer was, first, a general denial, and, second, that the transaction was void as against public policy.</p> <p>The plaintiff’s business was that “of purchasing public pay and claims against the government.” The defendant at the time of this transaction (in 1872) was an inspector in the United States custom house at New York. His pay was four dollars a day, payable monthly. It appeared that the plaintiff had, on occasions previous to September, 1872, purchased or bargained for the purchase of defendant’s monthly pay or salary, or • some interest therein; and on September 2, fifty-five dollars and seventy-four cents being dne him for an existing debt, he (as he testified) bought of defendant, by an oral agreement, the sum of sixty-one dollars and thirty-one cents of his pay for the month of September, which would become payable on October 1. Defendant, however, in October collected the whole of his September salary,- and only repaid the plaintiff three dollars on account, so that plaintiff claimed fifty-eight dollars and thirty-one cents as and for the balance of his interest in those moneys.</p> <p>For that sum, with costs, &c., plaintiff recovered judgment in the court below, the effect of which was to render defendant liable to arrest and imprisonment in case of non-payment of the judgment, under section 50 of the district court act of 1857.</p> <p>Exceptions were taken by defendant’s counsel on the trial to numerous admissions, and refusals to admit testimony, to a denial of a motion to dismiss the complaint, and to refusals of requests to charge the jury, which appear in the points of counsel and the opinion of the court.</p>

Motion to change the place of trial. The plaintiff in this action was a foreign corporation; the defendant, James M. Sweetland, executor, &c., resided in Madison county in this State. The plaintiff had an agency in the city of New York for the transaction of business. The action was one of those mentioned in section 125 of the Code. The plaintiff laid the place of trial in the city and county of New York.

On the trial of this action the court refused to allow evidence to be given that the notes to secure which a mortgage was given were founded on a usurious consideration, although it was admitted that the “ defendant was the owner of the premises” incumbered, on the ground that the defendant, not being the owner at the time of the execution and delivery of the mortgage, and having become so subsequent to that time, must be regarded as having had notice of it, and was not in a…

Wilmerdings & Mount obtained an order in the supreme court, requiring N. Hill Fowler, an attorney, to pay over to them the sum of about nine hundred dollars, with interest, which Fowler had collected under the following circumstances: Fowler (under the name of Nathaniel H. Fowler) and others, had formerly recovered a judgment against one Lowenstein for about eight hundred dollars ; and in 1887,' Lowenstein having meanwhile consigned to Wilmerdings & Mount goods, upon the…

This action was brought by Charles K. Bingham, receiver &c., of Alfred Disbrow, a judgment-debtor, against Alfred Dis-brow, William Strang, Bethia E. Disbrow, and James A. Dis-brow, administrator, &c., of Stephen R. Disbrow, to set aside a transfer by Alfred Disbrow, the judgment-debtor, and by William Strang, his assignee, of his distributive share in the estate of Stephen R. Disbrow, his deceased brother.

This action, in which the American Life Insurance & Trust Company were plaintiffs, and Harper V. D. Van Epp& was defendant, came before the court on an application to compel defendant to pay costs.

<p>Motion to strike out certain portions of the complaint as irrelevant, and to make other portions thereof more definite and certain.</p>

This was a proceeding instituted by George W. Cavanagh, Sarah Foster, and Samuel Foster, by petition to the Supreme Court, under 2 Rev. Stat., 317, § 1, for the partition of a lot of land with dwelling-house in Fifty-first-street, New York city. A special guardian was appointed for certain infant owners of three-fifths of the property. Three commissioners were appointed to make the partition.

This was an action upon two promissory notes made hy the defendants, payable to their own order, and by them indorsed and delivered to the plaintiff.

<p>Liability of Landlord foe In juey to Subtenant by Defective Fixtuees.</p> <p>The owner of a dwelling is not liable for a personal injury suffered by a sub-tenant of the lessee from the explosion of a kitchen boiler, which was constructed of suitable materials, and with care and skill.*</p> <p>He would be liable, however, it were so improperly put up that an explosion might have been anticipated. In such a case the dangerous fixture may be regarded as a nuisance; and the owner of the premises guilty of gross negligence.</p>

I. November, 1861.—Application for an absolute writ of prohibition. Samuel W. Slocum, one of the respondents, a resident of Brooklyn, in Kings county, began, on the ninth day of September, 1861, by attachment in the Marine Court of the city of Hew York against the relators, two of whom were also residents of Brooklyn, three suits on as many promissory notes made by them, and given to and held by him for §600, §650, and §600, respectively.

<p>The action was brought to have an easement declared in favor of the plaintiffs, as owners of the dominant, against the defendants, as the owners of the servient premises, and to have the defendants perpetually enjoined. The facts sufficiently appear in the opinion.</p>

Appeal by William A. Martin, purchaser at a sale under a judgment of foreclosure, from an order of the special term, denying his motion to be relieved from such purchase. The action was brought by Daniel Lenihan against Edward Hamann, and others.

This action was brought by John M. Hubbard, against the New York and Harlem Railroad Company, upon two bonds made by the defendant for $1,000 each.

In this action, which was brought by the Erie Railway Company against Jay Gould, the court allowed an order, on defendant’s application, appointing a referee to take the affidavit or deposition of Wm. R. Travers, to be used on a motion in the cause, and requiring Mr. Travers to appear before the referee at such time and place in the city of New York as the referee should appoint. This order the plaintiffs moved to vacate, as having been improvidently granted.

I. April, 1862.—Demurrer to the complaint. This action was brought by Frederick F. Betts, against John H. Bache, to recover $1813.47 alleged to have been lost by betting and gaming. The complaint alleged, that on or about the 1st day of October, 1861, the defendant received the sum of $1813.47, belonging to, or on account of the plaintiff, and which is now due him, contrary to the provisions of the statute against betting and gaming, and claimed judgment therefor.

<p>Appeal from a judgment.</p> <p>• Philip 0. Hubbell filed a notice of lien against the premises of John Schreyer, in the city of Hew York, for bililding materials. In his notice he stated that Ms claim was against the owner, and Thomas Holt, the contractor, upon a verbal agreement: •</p> <p>A subcontractor, Francis Muldoon, also filed a notice against the same premises, stating his claims to be against the owner for one "sum, and against the contractor for another sum.</p> <p>The issues raised by the answer of the owner were referred, upon consent, and judgment was entered on the referee’s report, from which the owner appealed.</p>

This was an action by Abraham W. Birkbeck, assignee of George Remsen, sheriff of Kings county, against William R. Stafford and John Davidson, to recover $263, sheriff’s fees and compensation. On the 22d June, 1860, one Spencer H. Stafford, as one of a firm of attorneys-at-law, of which the defendants were members, caused to be delivered to Remsen, the sheriff, a warrant of attachment issued by Hr.

Judgment had been recovered in the Sew York Common Pleas in favor of Sidney H. Stuart against Julius G. Salhinger for $308.93. The defendant was, discharged from his debts by Hon. Thomas W. Gierke, a justice of the Supreme Court, in the First Judicial District, on the petition of creditors having debts amounting to two-thirds of all the debts owed by him, under 2 Rev. Stat., 16. The judgment-creditor, after the granting of the discharge, issued an execution upon the judgment.

Motion to dismiss the complaint. This action, brought by Patrick Sarsfield against George W. Yan Yaughner and Elizabeth Greer, was in the nature of a creditor’s bill, founded on a judgment against Yan Yaughner, of $88.83, on which was due a balance of only $31.02. Yan Yaughner moved to dismiss the complaint, as involving too small a sum to occupy the court.

Application by a purchaser at a sale under a decree in partition to be discharged from the purchase. This action was brought by William E. Clark, an infant under fourteen years of age, Thomas Clark, and Letitia Clark, against Martha E. Clark, Louis M. Clark, Victor B. Clark, Eliza Jane Clark, and Stephen P. Russel, public administrator, for the partition of a lot of land, No. 36 Sheriff-street, in the city of New York.

Demurrer to the complaint. The action was brought by Richard F. Carman against the city of New York, to recover $1500 for damages to certain fruit-trees. The complaint, omitting formal parts, was as follows: I. That the above-named defendants are a municipal corpora- . tion, duly incorporated under and by virtue of the laws of the State of New York. II.

The relator, Jacob H. Martin, instituted this proceeding against Isaac Albright and others, commissioners of highways of the town of Rew Scotland.

Trial by the court. This action was brought by Maria M. C. Wetmore against Daniel Holsman, Charles F. Wetmore, and Katharine II. Wet-more, to set aside a marriage settlement executed by the plaintiff, in contemplation of marriage with the defendant C. F. Wetmore, to the defendant Holsman and another, in trust, on the ground of the infancy of the plaintiff at the time of executing such settlement, and of alleged misapprehensions on her part of its effect.

James O’Brien, sheriff of New York, sued the defendants on a policy of insurance they had issued in favor of E. S. Candler, Jr., upon Ms property, wMch was subsequently destroyed by fire. Held: issued at the suit of various creditors of Gaudier, and of which attachments he had given notice to the insuranee company for the purpose of binding the fund in their hands.

This was an action by James L. Porter against James C. Willet, sheriff, &c., for the wrongful taking and detaining from the plaintiff of one thousand pounds of brass kettles, six barrels of sad-irons, four sets of tinners’ tools, and two casks of hollow ware, of the value of $750. The plaintiff claimed a delivery of the goods, or if a delivery could not he had, then to recover their value.

Randolph W. Townsend sued Sigmund M. Peyser and others for professional services. The cause was referred ; and after some sixty sessions the referee reported in favor of the plaintiff. On adjustment of costs the referee’s fees were allowed at five dollars a day, on the ground of an alleged agreement made between the parties to this effect, which, however, was contradicted. The plaintiff appealed from the judgment, in so far as it was in favor of one of the defendants.

Wm. K. Clare sued the National City Bank, to recover damages for injuries sustained by him by the fall of a board from their buildings in Wall-street, as he was passing upon the sidewalk, while the… Held: and I charge you, that the defendants are responsible for the careful manner in which the workmen whom they ‘ caused ’ to be put upon the premises performed the work assigned them.”

This action was brought by William W. Springsteed against Peter Lawson, to recover $325, for breach of warranty, and fraud in the sale of a horse.

The action was brought by George A. Baker and William W. Baker, against Henry Wales. The facts are stated in following opinion delivered at special term: Sedgwick, J. — The facts seem to be that the plaintiffs kept in their office parcels of summons, with places left blank for defendants’ names and amounts to be claimed. The inference is, that if a business interview were not satisfactory, service of summons would follow, after the blanks had been filled up.

The plaintiff, Joseph Hoffman, assignee of one Willcox, brought this action against James Van Nostrand and. eight others, the surviving trustees of the Merchants’ Exchange Bank, for an accounting and for the delivery of to him of forty shares of stock in the Firemen’s Insurance Company. The action was 'referred to Hamilton W. Robinson, Escp, who reported in favor of the defendants. The plaintiff-appealed.

Motion by a creditor of the defendant to be made a party to supplementary proceedings. This action was brought by Jasper and Edwin Corning against the Glenville Woollen Co. Judgment was recovered by the plaintiff, who subsequently instituted supplementary proceedings, and in aid thereof procured an order for the examination of Ripley H. Cameron, under section 291 of the Code, in whose hands was property of the judgment-debtor.

Summons to show cause why two joint-debtors, against whom judgment had been entered, should not be bound by the judgment. This action was brought in 1852, by Henry D. Townsend against Lindley Murray, Jr., and Stewart Newell, surviving partners of the firm of William Tyack & Co., upon an acceptance. The summons and complaint were served only upon Murray, Newell being at that time a non-resident. Judgment had been entered in form against both defendants in 1856.

This action, brought by Benjamin M. Whitlock against Aaron Joseph, in the Marine Court of the city of Hew York, was tried before a jury in June, 1859, and a verdict rendered for the defendant. The facts are fully stated in the opinion.

This action was brought by Conrad A. and William Cronnse, against Ebenezer A. Fitch and Peter A. Cronnse. The case was tried at the Albany circuit, before Mr. Justice Gould and a jury, January 15,- 1861, and resulted in a verdict for the plaintiff, whereupon the judge ordered that the case should be heard on exceptions, at the general term, in the first instance.

Motion to compel one Eben Wheeler to pay the costs awarded to 'defendants. This action was brought by John R. Wheeler, receiver, against Mehemiah Wright and William G. Wright, to set aside a conveyance of real property.

Motion by plaintiff to set aside an execution against his person. This action was brought by John Purchase against George F. Bellows, to recover the possession of certain personal property alleged to be wrongfully detained, with damages for its detention. Judgment was rendered in favor of the defendant for the costs of the action.

<p>Injunction.—Affidavits on Motion.—Burden of Proof.</p> <p>A covenant in partnership articles, prohibiting either partner from continuing in any business within one block of the premises occupied by the firm, for a limited period after its dissolution, will be enforced by injunction.</p> <p>Where the party opposing a motion, introduces affidavits setting up new matter, in avoidance of the allegations contained in the affidavits of the moving party, the latter has a right to introduce new affidavits for the purpose of contradicting such averments of new matter.</p> <p>But the moving party will not be allowed to set up new matter in such affidavits in avoidance of the allegations of his opponent.</p> <p>In proceedings upon a motion,—e. g., an application for a provisional remedy,— the burden of proof lies upon the party holding the affirmative of each particular issue. If the party opposing the motion admits the principal allegations upon which it is founded, but sets up new matter in avoidance, the burden of proof devolves upon him.</p> <p>Where the evidence or testimony of one party to the action is explicitly contradicted by the evidence or testimony of another, the party holding the affirmative of the issue must be corroborated in some manner, or fail.</p>

Adam Brown sued Sigmund P. Windmuller and Simon Tobias, in an action involving an accounting in reference to mercantile transactions between the parties. The trial of the cause was referred; and after a protracted trial the referee reported in favor of the defendants. The cause now came before the court on appeal from the clerk’s taxation of costs.

' Francis Dainese sued Richard H. and Anthony B. Allen, to recover upward of six thousand dollars, which he alleged had been over-paid to the defendants by the plaintiff’s agents, in transactions embracing shipment of goods to plaintiff by one Zantzinger, his agent. The defendants set up a counter-claim arising out of the same transactions.

Motion to set aside the complaint. This action was brought by C. F. Norton against Cary & Salisbury. The facts relied upon, as causes of action, are stated in the opinion.

This action was brought by Wm. Schaus to recover damages alleged to- have been sustained by him from water which entered his cellar, as he alleged, through the negligence of the defendants in opening a ditch in front of plaintiff’s premises for laying gas mains in the street. The answer was a general denial.

Sylvester J. Graver sued Lucinda Wilson iñ the supreme court to foreclose a mortgage given by defendant to plaintiff, as collateral to her bond for one thousand dollars and interest.

Demurrer to an answer. This action was brought by William S. Wait against John Ferguson, to recover $12,011.85. The plaintiff had recovered a judgment for this amount in the Madison Circuit Court, a court of general law and equity jurisdiction in the State of Illinois, against the Mississippi and Atlantic Railroad Company, for services as an officer of the company. A writ of fieri facias had been issued upon the judgment, and returned unsatisfied.

This action was brought by P. Letitia Phillips against George A. Wicks and Angelina G. Wicks.

John I. Loomis sued Martha and John Ruck, on a promissory note made by Martha, the wife of John, payable to her own order, and indorsed by her, and also indorsed by John, her husband.

<p>Appeal from an order directing a commitment for contempt.</p> <p>This action was brought by Peter Morris against Thomas J. "Walsh, to cancel a building contract. The plaintiff obtained judgment; the contract was adjudged cancelled, and defendant required to execute a release and conveyance of the premises, and to deliver up the keys of the houses. Failing to do so after personal service of a copy of the judgment, an order to show cause was issued, why an attachment should not issue. The defendant opposed the application upon several grounds ; among others, that' a certified copy of the judgment should have been personally served with the order to show cause, and that no demand had been made by the plaintiff, who, before judgment, had been appointed receiver for the delivery of the property. The objections were overruled, and the defendant adjudged guilty of a contempt, and committed to jail. Subsequently, while defendant was in jail, a second commitment was granted against the defendant, who had declined to execute a release under circumstances sufficiently set forth in the opinion. From the order for the second commitment the defendant appealed.</p> <p>I. The tender to the defendant of a release to execute, and the demand relied on, were made of the defendant while he was in prison, in custody under the first proóeeding. There were no witnesses present to sign the paper, and no commissioner to receive the defendant’s acknowledgment of the instrument; the instrument tendered to him to sign was defective for want of a seal. It was therefore no deed; besides, the defendant ought to have had the opportunity of submitting the papers to his counsel for examination. He was deprived of this by his incarceration and his inability to communicate with him. This right to consult counsel in criminal cases is carefully guarded in this State by statute as well as by judicial decisions. (2 Rev. Stat., 708, 4 ed., § 14; People a. Restell, 3 Hill, 289.)</p> <p>H. The judgment of the court required that the demand to be made of the defendant for the execution of the release and for the delivery of the possession of the premises should be in writing. Ho such written demand was ever made.</p> <p>IH. Two commitments have been issued to the sheriff in this case. The second commitment is irregular, and should be set aside for the reason that what occurred on the issue of the first attachment was the same matter, and was therefore res adgudicata.</p> <p>The fact that he was already in jail under a commitment for a previous contempt in disobeying another and separate requirement of the same judgment does not invalidate his commitment for this contempt. Whether he executed the release or not did not affect his previous commitment, and to allow that to invalidate this commitment would be to allow the defendant to take advantage of his own wrong. Any authority which makes void acts done under duress will be distinguishable from this, inasmuch as the act here required did not require him to 'do any thing for which he was then imprisoned, but an entirely different business from the contempt for which he was detained; while, in order to make duress, the act required must relate to his imprisonment and be procured from him in order to obtain his discharge from his then imprisonment. If the defendant had executed the release mentioned in the second order, it would not have in any manner affected his imprisonment on the first, therefore there was no duress.</p>

This was aj case on the equity side of the court, and was tried before the judge without a jury. The facts appear in the opinion.

Motion to dismiss an appeal. This action was brought in the City Court of Brooklyn by James J. J ones against Susan A. and Reuben H. Decker. The defendants separately demurred to the complaint. Judgment was rendered for the plaintiff on the demurrers, with leave for the defendants to answer, on payment of costs. The defendants took the present appeal from this decision as from an order, but gave no security for costs.

Motion to vacate three judgments entered on confession. On the 22d of Hovember, 1861, three judgments were entered in the Supreme Court against Austin Sherman on confession. The first judgment was in favor of Ephraim Lyon, for $3,471.42.

In this action, which was brought by the executors of Robert J. Brown, deceased, against Isaac Hermann and others, ¿for a deficiency arising upon the foreclosure of a mortgage, it appeared that Anna D. Anthony, one of the defendants, was the owner of the equity of redemption, and had acquired it by a deed which declared that she assumed the payment of the mortgage. At the time of such conveyance to her she was a married woman, and so remained up to this time.

This was a proceeding by Joseph McG-raw, against Mary Alice Godfrey to foreclose a mechanic’s lien created under the act of .1863 (Laws of 1863, ch. 500), for the city of Hew York, and was brought by the plaintiff as lienor against the defendant, as contractor and owner of certain premises in the city of Hew York, on which, the plaintiff did certain work and furnished certain material in October, 1870, and each month thereafter until January 33, 1871,. on which day the the…

Alexander Irving sued Luther Milbank and others upon an undertaking given pursuant to section .335 of the Code, to stay execution on a judgment pending an appeal to the court of appeals.

Motion to restrict the defendants to one bill of costs. This action was brought by James, John, Fletcher, and Joseph W. Harper, against Royal Chamberlain and twenty others. The action was commenced in January, 1860, twelve only of the defendants were served with summons.

This was an action by John Morton and John M. Canda against Anthony F. Campbell, sheriff of Kings county, for not holding a defendant to bail on an attachment issued, by the county judge of Bungs, in supplementary proceedings. The plaintiffs had recovered a judgment against one Seth B. Cole for $1,838.75 ; supplementary proceedings were instituted against Cole, property disclosed, a receiver appointed, and Cole was directed to transfer his property to such receiver.

<p>Filing of Pleadings.—Costs.</p> <p>Costs may be allowed on an ex parte motion to compel the filing of a pleading, where the party omits to file it after notice requiring him to file it.</p>

The relator obtained a writ of habeas corpus requiring the respondent to produce the body of Louis Heilbronner, an illegitimate child, born of her, in the city of Albany, some six months previous to the proceedings. The relator returned that the child was in his custody. The relator further stated— That said Hoster is a married man, but has no children born to him; that he has sufficient means to properly and suitably support, bring up and maintain said infant Louis.

The relator was Thomas Reilly; the defendants were Frederick Johnson and James D. McMann.

This action was brought by George W. Johnson and James M. Wallace, against Charles Smith.

Application by St. Ann’s Church, in Brooklyn, for leave to mortgage certain real estate.

<p>The PT. Y. Catholic Protectorate.—Indentures oe Apprenticeship.—Proceedings before Committing Magistrate.</p> <p>Under Laws of 1863, ch. 448, § 5, subd. 2, the oath of the mother before a magistrate, that her child absents herself from home without her consent, refuses to obey her lawful commands, and is bad and ungovernable beyond her years, is sufficient evidence to authorize the magistrate to commit the child to the N. T. Catholic Protectorate, chartered by that act.</p> <p>A charitable institution empowered to bind out children committed to its charge to learn proper trades and employments, cannot bind out a child by an indenture which does not bind the master to teach the child any trade or employment, but simply binds him to feed, clothe and educate the child, and cause it to receive religious instruction.*</p> <p>Error in the magistrate’s designation of the institution to which he ordered a child committed, may be cured by a fresh commitment.</p>

Motion to set aside execution against the person. This action was brought by Alexander Meech against Kellogg H. Loomis. The defendant was taken into custody under an order of arrest, requiring bail in the sum of $200, which defendant was unable to give.

This action was brought against Jacob H. Meach, Elijah P. Bhshnell, Samuel Dewey, commissioners to build a bridge in Greene county, and Frederick Hill, county treasurer of the county. In the year 1869, application was made to the board of supervisors of Greene county, for authority to build a bridge over Catskill creek, in the village of Catskill, under the provisions of the Laws of 1869, chapter 855.

Motion to vacate orders of arrest. This was an action against John A. Kennedy, superintendent of the Metropolitan Police, Captain Davis, a captain of police in that force, and several patrolmen of the force, for false imprisonment. Orders of arrest against all the defendants were granted by a justice of the court as a provisional remedy under the Code, and the defendants now moved to vacate these orders.

Charles J. Pusey sued the New Jersey West Line Railroad Company (the successors of the Passaic Valley and Peapack Railroad Company) on the following instrument: . “ This is to certify that the Passaic Valley and Pea- • pack Railroad Company hereby acknowledge the • re-. ceipt from Ebenezer Hanford of the sum of $10,000, in work done and materials provided by him in the month of December, 1869, and January, 1870, under his contract with said company for the construction of…

S. Circuit Court. This action was brought hy John S. Anderson against the Manufacturers’ Bank, to recover $633.33 damages, for not properly presenting and protesting… Held: that, on the record, a plea in abatement to the jurisdiction was waived by a plea in bar. 2. In both cases the court held, that in the particular case the court had jurisdiction. 3. In neither case did the court hold, that defendant must plead in abatement to take advantage of jurisdiction of the action.

Motion to vacate a judgment. This action was brought by James T. Soutter against John 0. Mather, as maker, and Bichard Schell, as indorser, of a promissory note for eleven hundred dollars.

Motion to set aside judgment. This was an action by George W. Wheeler against William. H. Chesley, upon an acceptance for $240. The plaintiff’s complaint was verified as follows : [Venue.]—F. 0.

<p>Motion to postpone assessment of damages.</p>

<p>Motion fob Discovery.—Subpcena duces tecum.—Sufficient Description of Documents. — Irregularity. — Waiver.— Amended Complaint. — Time to Answer. — Substantial Eight.</p> <p>The fact that papers, sought to be discovered preparatory to trial, may be procured by subpoena duces tecum, served upon, the adverse party, is not a conclusive answer to an application for an order for their discovery. But if the court see that obtaining the proof in that way is as practicable as by a discovery, the motion will be denied.</p> <p>On motion for discovery, in an action against an assignor, his assignee, and preferred creditors, to set aside the assignment, there is a presumption that such creditors have possession of the notes, to secure payment of which they are preferred, and which are shown to have been delivered to them.</p> <p>On motion for discovery, the applicant is not required or expected to give an accurate description of the documents sought. The description need only be sufficiently precise to enable the party who is called onto produce, to know what is required.</p> <p>No application to set aside proceedings for irregularity merely will be allowed, unless made within a reasonable time ; nor where the party applying has taken a fresh step, after knowledge of the irregularity.</p> <p>But the right to put in an answer to an amended complaint, is substantial, and a waiver of it should not be implied.</p> <p>Where the defendant, after service of an amended complaint, under an order allowing him to elect to let his answer stand, or to serve a new answer, had suffered the trial (which was brought on before the time for him to elect had passed) to proceed on the issues raised by his first answer;—Sdd, that he did not thereby waive his right to serve a new answer.</p>

This action was brought by William M. Shipman against Thomas H. and Isaac C. Shafer, and Charles Underhill, to recover $57.57, as the netproceeds of certain butter and pork sold by the defendants, on commission for the plaintiff. The defendants, after receiving the proceeds, sent the plaintiff their check, post-dated, for $51.32, the amount then due.

<p>Ancillary Administration.—Foreign Executor, when not Required to Account here.</p> <p>An executor appointed in another State in the case of a testator domiciled there, although he may take out ancillary letters in the Surrogates’ Courts of this State, to reach assets here, can be compelled to account here, at the instance of a beneficiary under the will, only for such assets as the testator left in this</p> <p>State, and which were here at the time when the letters ancillary were granted. With respect to all other assets he is to account in the jurisdiction of the principal administration.*</p> <p>There may, however¡ he exceptions to this rule,—e. g., where the hulk of the estate is within the jurisdiction of ancillary administration, the will is clear, the debts are paid, and it is apparent that no injury could arise.</p>

The plaintiff, John Cook, brought this action as assignee of a partnership, under the firm of Cornell & Conly, to enjoin the defendants, John Kelly and others, from disposing of the assigned property, and for further relief. He moved, at special term, for an injunction and receiver, but the motion was denied, and he now appealed. The decision of the motion is reported, 12 Ante, 35.

[The following opinion of the chief justice should have been inserted in our report of the case, Ante, 185, but was not received at the time that report was published.]