Volume 14 — Daly's New York Common Pleas Reports

<p>The act of 1867, authorizing the construction of an elevated railway in the City of New York, “ along both sides of Greenwich Street to Ninth Avenue, and along both sides of Ninth Avenue, or streets west of Ninth Avenue,” providing for the appointment of commissioners with power to authorize the removal of obstructions, etc., to designate the points at which staircases in the streets should be erected for public access to the railway, etc., and authorizing the railway company to “ rent, purchase, or acquire such buildings or parts of buildings as may be convenient for the stations or depots for public access to the railway ” (L. 1867 c. 489), did not empower the railway company to build stations or to place stairways in or over any streets other than those in which it was authorized to lay its tracks.</p> <p>Neither was power to do so conferred by the provisions of the act of 1875 that the company might make and adopt such alterations and improvements in the structures, etc., as the commissioners might authorize or approve, and that “ the position and construction of the tracks, . . . stations, and other structures, which said company is or may be authorized by law to construct, may be such as said company-may adopt and the said commissioners approve ” (L. 1875 c. 595).</p> <p>That act did not confer any new franchise, but only confirmed and regulated franchises previously granted.</p> <p>Defendants, successors to the company to which the franchise was granted, erected, adjacent to the railway track, but wholly in another street intersecting Greenwich Street, a station, opposite plaintiff's building, parallel to it, equal to it in height, and so close to it as to intercept the light and darken its interior to such an extent as to prevent plaintiff from carrying on his business in it as beneficially and profitably as he had previously done. Held, that his pecuniary loss thereby was such special damage that he might maintain an action to perpetually restrain defendants from erecting or maintaining such station, and to compel its removal. And whether plaintiff was the owner of the fee to the middle of such street, or had only an easement therein as an abutting owner, was immaterial.</p> <p>The fact that plaintiff himself, by maintaining a wooden awning over the sidewalk, somewhat darkened his building, though not so much as to prevent him from carrying on his business in any part of it, could not deprive him of the right to relief against defendants’ unlawful structure.</p>

<p>Appeal from an order of this court made at Special Term opening defendant’s default, and reviving the action in the name of the defendant’s administratrix, and allowing her to serve a supplemental answer, setting up a discharge in bankruptcy of the original defendant, in his lifetime.</p> <p>The facts are stated in the opinion.</p>

The action was brought to dissolve a co-partnership alleged to have been entered into between the plaintiff’s testator, James McCall, and the defendants. The business was that of dressmaking, in which the defendant Schamu M. Moschowitz is an expert.

Appeals from orders of the General Term of the City Court of New York affirming orders of that court denying motions to vacate attachments. These were two attachments issued against the defendant as a non-resident of the state. The defendant was a married woman, and for many years prior to April, 1885, had lived with her husband in the city of New York, in a house owned by her.

<p>In an action removed from a district court in the city of New York, this court has power to allow amendments of the pleadings, within the limits of the jurisdiction of the district court, and of its powers to grant amendments.</p>

• The action was brought to recover damages for personal injuries received by plaintiff, an employe of defendants, from the falling of an elevator operated by him under their directions.

<p>The defendant submitted to the superintendent of buildings of New York City, pursuant to the act of 1885 (L. 1885 c. 456 § 30), specifications and plans of buildings which he proposed to erect. The plans were approved, and the buildings were erected in full compliance therewith, save! as to the thickness of the chimney breasts, which were built twenty inches instead of twenty-eight inches thick. Held, that as the statute contained no provisions fixing the thickness of chimney breasts, defendant was not liable to the penalty therein provided (§ 505), for erecting buildings in violation of the methods of construction required by the statute. A penalty must be expressly created and imposed by statute; it cannot be raised by implication.</p>

The action was brought for rent, for the months of January, February, March, and April, 1886, at $37.50 per month. Judgment was rendered in favor of plaintiff for $173.18, being the amount of rent claimed, with interest and costs. 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>

Appeal by defendant from a judgment of this court entered upon a verdict for plaintiff for $10,000, damages, besides costs, for personal injuries sustained through defendant’s negligence. The facts are stated in the opinion.

<p>Appeal from a judgment of the General Term of the City Court of New York reversing a judgment entered by „ direction of the court, setting aside a verdict rendered subject to the opinion of the court.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover for salary as treasurer of defendant corporation from July 1st, 1874, to January 26th,'1877, at the rate of $2,000 per annum. The defendant, the Southern Railroad Association, was chartered by the State of Tennessee in order, apparently, that it might take leases of the Mississippi Central Railroad and connecting railroads and exercise their franchises.

<p>Case submitted on a statement of facts agreed upon.</p> <p>The facts are stated in the opinion.</p>

An assignment by James N. Townsend and Samuel ' Baker for benefit of their creditors was made December 28th, 1867. The assignors were adjudicated bankrupts in 1868, and in 1869 John Sedgwick, Esq., was appointed their assignee in bankruptcy. In 1872 the assignor Baker brought an action in the Superior Court against Crosby, the assignee, and Townsend, the other assignor, for an accounting.

The action was brought in 1884 to recover a balance due on a promissory note made in Missouri in 1869 by defendant, then a resident of .that state. In 1872 defendant removed to Iowa and continued to reside there until 1883, when he removed to New York.

The action was brought to recover damages for breach of a contract for the personal services of plaintiff as an actor for six weeks at the agreed rate of $200 per week, plaintiff having been discharged at the end of the third week. The discharge occurred in the summer time, when there were but three reputable theatres open in New York City, and in them there were no vacancies known to plaintiff.

The action was brought to recover commissions upon and money paid out in the purchase and sale of wheat for defendant. The defendant ordered plaintiffs’ agent to purchase wheat, deliverable in May, at a certain price, which order was executed at the Board of Trade in Chicago by plaintiffs’ correspondent there. The transaction was duly entered on the agent’s books.

The proceeding was brought under chapter 338, Laws of 1858, as amended by chapter 312, Laws of 1874, and section 898 of the Consolidation Act, to vacate an assessment for regulating, grading, setting curb and gutter-stones, and flagging Tenth Avenue, from Manhattan Street to One Hundred and Fifty-fifth Street in the City of New York. The facts are stated in the opinion.

<p>The fact that an assessment for á street improvement was not made and confirmed for thirteen years after the finishing of the work will not invalidate the assessment as to one who purchased prior to such confirmation, believing that the assessment was paid, it appearing that upon inquiry the fact of non-payment could have been discovered.</p>

<p>Appeals from orders of this court confirming reports of a referee.</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.</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.</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>

new trial. The action was brought to recover for injuries occasioned by the negligence of defendant’s driver, while plaintiff was in the act of alighting from one of defendant’s horse-cars. The jury found a verdict for plaintiff for $800 damages. The facts are stated in the opinion.

The action was brought to recover a penalty for violating the act of 1885 (L. 1885 c. 456 § 28), in permitting persons to stand in the passage-way of defendant’s theatre. The facts are stated in the opinion.

The facts are stated in the opinion. It was competent for Garnsey to provide in his first contract with Warren for the payment of the latter in any way that they might agree upon (Dowdney v. McCullom, 59 N. Y. 367; Crane v. Genin, 60 N. Y. 127; Payne v. Wilson, 74 N. Y. 348; Gibson v. Lenane, 94 N. Y. 187).

The action .was brought to recover a balance due upon an account for goods sold and delivered to Alexander M. C. Smith in his lifetime, for the use of certain steamers alleged to have been owned by Mm. The defendant claims that the sale and credit were not to the deceased, but to his brother Philemon H. Smith. Alexander died after the goods had been delivered.

The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. According to the testimony on the part of the plaintiff, she and her daughter, on the 24th day of October, 1884, were waiting at the northwest corner of Third Street and Avenue B. for a Houston Street car. They hailed a car, and the driver looked at them and stopped the car.

<p>Appeal from an order of this court rejecting a claim under a general assignment for the benefit of creditors.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of this court entered upon the decision of the judge on the trial» of a proceeding to foreclose a mechanic’s lien.</p> <p>The facts are stated in the opinion.</p>

<p>The relator, a corporation organized for the purpose of constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors under the pavements of the streets of the cities of Hew York and Brooklyn, having obtained, in 1883, from the common council of New York, permission, pursuant to acts of 1879 and 1881 (L. 1879 c. 397, as am’d L. 1881 c. 483), to lay its wires in and through the streets and make connections with them underground, made application, in 1886, to the department of public works of that city for a permit to make excavations in the streets to construct its lines, which was refused, on the ground that the plan had not been approved by</p> <p>the board of subway commissioners appointed under the act of June 13th, 1885, as required by section 3 of that act (L. 1885 c. 499). Held, that an application for a mandamus to compel the granting of such permit was properly denied.</p> <p>The act of 1885, read in connection with the act of 1884 (L. 1884 c. 334), which it amended, gave the subway commissioners jurisdiction over the laying of all electric wires and cables, and of all companies using or intending to use underground wires through the streets; and applied to the relator, although its purpose was to lease its wires and not to operate them.</p> <p>Such application of the act of 1885 to the relator did not render it unconstitutional, as impairing the obligation of the contract created, in 1883, by its acceptance of the grant of the common council; the act did not take away or materially alter or impair the relator’s franchise, but simply regulated its use by prescribing that the electrical subways should be constructed according to a plan to be approved by the commissioners, which was a lawful exercise of the police power of the state.</p> <p>Neither does that act violate the provision of the constitution of the state, that no private or local bill shall embrace more than one subject, and that shall be expressed in its title (Const, art. 3 § 16) ; it is not made a local act merely because its operation is confined to cities having a certain population, there being but two such cities; and it embraces but one subject, the placing of electrical conductors and the mode of carrying that purpose into effect, which subject is expressed in its title, “An act providing for placing electrical conductors underground in cities of this state, and for commissioners of electrical subways.”</p> <p>Nor does the provision in the act that the act of 1884 “ is amended and made to conform in all respects to the provisions of this act” (§ 2), bring it within the provision of the constitution that “ no act shall be passed which shall provide that any existing law shall be made or deemed a part of said act, or that any existing law shall be applicable, except by inserting the same in such act” (Const, art. 3 § 17).</p>

<p>Appeal from an order of the General Term of the City-Court of New York, reversing an order of that court setting off a judgment for costs in favor of defendant against a judgment on the merits in favor, of-plaintiff.</p> <p>The facts are stated in the opinion.</p>

<p>A complaint set forth as a cause of action a running account for the transmission of telegraphic messages. The answer set up as a counterclaim damages caused by the plaintiff’s negligence in addressing and delivering to defendants a telegraphic message not intended for them, on which they acted in good faith to their injury. Held, that the answer set up a cause of action founded on a tort and was therefore demurrable.</p>

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

The action was brought to recover damages for breach of a contract for the sale of real estate, by plaintiff as vendee against defendant as vendor. The jury rendered a verdict for plaintiff for $1,500 damages. The facts are stated in the opinion.

<p>Defendants, directors of a company heavily involved, entered into an agreement with plaintiffs, whereby the latter agreed to pay the indebtedness of the company, and defendants transferred to them the majority of stock and right to manage the company, agreeing that the indebtedness “ shall and will not exceed ” a certain sum, and that if it should exceed such sum, defendants would pay the excess and save plaintiff’s harmless therefrom. Held, that plaintiffs’ agreement was to discharge the indebtedness of the company, whatever the amount should be, and that they could recover from defendants the excess of such indebtedness over the sum named, regardless of the ability of the company to pay such indebtedness or whether plaintiffs had in fact at that time paid such excess.</p>

The action was brought by plaintiff to recover for rent of premises leased to defendant. It appeared on the trial that defendant removed from the premises before the expiration of the term of the lease, and gave the keys thereof to plaintiff, who advertised the premises to lease, and, after some delay, leased the same for the unexpired term at a decreased rental.

The plaintiff’s assignor Newhall, having brought an action in the Superior Court of the City of New York against Appleton and others, defendants herein, and being a nonresident, was ordered to file security for costs; and in compliance with that order he deposited $500 with the clerk of the court in lieu of an undertaking.

<p>Appeal from an order of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury.</p> <p>The action was brought to recover for injuries sustained by plaintiff, a tenant, through the negligence of defendant, the landlord, of a tenement house. The jury rendered a verdict for plaintiff for $400 damages.</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>

The action was brought to recover the price of meat sold to defendant upon his alleged false and fraudulent representations that in the purchase thereof he was acting as agent for one Gillen.

<p>The acceptance of the bond of a debtor payable in one year, on the understanding that an extension is to be granted, is sufficient consid-</p> <p>eration to support a mortgage, executed by a third person, to secure the bond, and a covenant therein to pay the debt; and a failure to record such mortgage, the land having passed into the hands of a bona fide purchaser without notice, will not affect the creditor’s right of action against the mortgagor on the covenant.</p>

<p>By the. terms of an agreement between S. and G., in consideration of a loan of a certain sum of money by S. “ for use in the business of heating, ventilating, etc.,” for which G. gave S. his note with certain specified securities for its payment, and in further consideration of services of S. “in securing sales in said business, and for any further moneys he may, at his own option, advance for use in said business,” G. agreed “ to divide equally the yearly net profits of said business.” It was also agreed “ that said loan ... is expressly for use in said business and for no other use whatsoever; ” that any moneys either might advance for use in the business should draw interest; that G. should receive “ as compensation for the management of said business,” a yearly sum, “to be charged as an expense;” that G. should render a quarterly statement of the condition of the business, and make an annual division of profits; and that any commissions accruing to G. in the course of the business should be an asset, subject to such division. Held, that they were partners as to third parties in such business, and S. was liable upon contracts made by G. therein.</p>

The action was brought to recover damages for the loss of horses killed by a collision with defendant’s railroad train, alleged to have been caused by negligent management of the train.

<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 the judge on trial by the court without a jury.</p> <p>The action was brought in the City Court of New York by the plaintiffs as heirs at law of Caroline M. Riggs, deceased, against the New York Refining Company, to recover for rent of premises leased to said company by Franklin C. Field, trustee of said Caroline M. Riggs under a trust deed or antenuptial settlement made in 1853, reserving to said Caroline M. Riggs the power of appointment by will. The defendant company, before answer, on application to the court, obtained an order allowing it to pay the rent in dispute into court and substitute, in place of itself as defendant, George C. Genet as trustee under the last will and testament of Caroline M. Riggs. Thereupon plaintiffs filed an amended complaint alleging facts to show the invalidity of the will of said Caroline M. Riggs, and demanding a further judgment that said George C. Genet, in his character as trustee, had no claim upon the money.</p> <p>At the trial, the court found that the alleged will of Caroline M. Riggs was invalid, and gave judgment for plaintiffs. From the judgment, defendant Genet appealed to the General Term of the City Court, which affirmed the judgment, and from that decision defendant appealed to this court.</p>

The action was brought to recover damages for alleged negligence of defendant causing the death of plaintiff’s intestate. The defendant, a foreign corporation, was the owner of a steamship known as the Devonia. Plaintiff’s intestate was a longshoreman employed by the firm of Henderson Brothers of New York, and worked for them as a gangway man in February, 1884. On the 20th of February, 1884, said steamship was lying at Pier 21, North River, discharging cargo.

The action was brought by plaintiff to recover broker’s commission, amounting to $710, for negotiating a sale of a piece of real estate formerly owned by defendant. The defendant did not answer. In affidavits he admitted his liability to pay such amount, but averred that one T. W. Freeh, another broker, claimed such commission for procuring such sale.

<p>Leave to appeal to the Court of Appeals will be granted only where the application therefor shows that the construction of a public statute is involved; or that the questions of law are of public importance or affect large public interests; or that the principles involved are also of importance to others than the parties to the suit; or that a number of cases are depending upon the decision.</p>

The action was brought in the First District Court to recover the premium on a policy of insurance issued on property belonging to the defendant. The defendant alleged payment of the premium tó Pomroy & Mackaye, insurance brokers, who had transacted business in several other matters for the plaintiff. About eleven months after such payment, the plaintiff applied to the defendant for the payment of the premium which had already been paid to the brokers.

The action was brought to compel specific performance, by defendant, of a contract to sell real estate to plaintiff. The defendant was, at the time of the commencement of the action, the owner of the plot of land in question, lying, between 137th and 138th Streets and Eighth and New Avenues in the City of New York.

<p>In an action for personal injuries caused by slipping on the stairs of a tenement house owned by defendant, plaintiff was allowed to show that defendant was the owner of considerable property. Held, that such evidence was inadmissible, and its admission prejudicial, it having the tendency to prejudice the minds of the jury by contrasting 1 the pecuniary conditions of the parties to the action.</p> <p>The court also allowed the question to be asked plaintiff: “ State whether or not the defendant stated to you that he had had some accident in the house, and that he ought to have fixed it, or in some other house.” Held, that this was erroneous, the question not being definite as to what stairs and house.</p>

<p>In an action for personal injuries, alleged to have been caused by defendant’s negligence to plaintiff while a passenger on defendant’s ferry-boat, the only evidence for plaintiff as to the way in which the accident occurred was his own testimony, which was not clear or very satisfactory, and contradicted material allegations of his complaint; his account of what he was doing for some hours preceding, and of what happened immediately after the accident, was also unsatisfactory, although the injury was not such as to cause his apparent confusion of mind and want of recollection; he was contradicted by several disinterested witnesses as to the circumstances of the accident; one of them testified, that immediately after the accident, plaintiff frequently said it was his own fault, and this plaintiff did not explicitly deny, but said he had no recollection on the subject. Held, that a verdict for plaintiff should be set aside, as against the weight of evidence.</p>

The action was brought for absolute divorce. Upon motion, there had been allowed to defendant a certain sum of money for counsel fee and five dollars per week as alimony pendente lite. Pending trial of the case before a referee, plaintiff, after having introduced evidence concerning a certain woman, desired to have defendant appear in person at the reference, so that the witnesses might say whether or not she was the woman in question.

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

<p>Plaintiff, while employed by the owners of a building in course of construction in cleaning out rubbish from the cellar, was injured by the fall of a mass of brick, stone, and timber from the fifth story, caused by the overloading of that floor with brick and stone, by the contractor for the mason work, who was erecting the walls. The plans and specifications of the building had been approved by the building department, and the mason work and carpenter work had been contracted for with the owners, to be done according to the plans and specifications, by separate contractors, respectively, who were well known, experienced, and competent. An inspector of the building department had examined the work every day as it progressed, and approved it up to the day of the accident; but on that day he and others had warned the employes of the contractor for the mason work who were hoisting brick not to overload the beams. It did not appear that the owners had knowledge, or even constructive notice, of the excessive overloading of the fifth floor. Held, that they were not liable for the injury to plaintiff.</p>

<p>Appeal from a judgment of this court in proceedings to foreclose a mechanic’s lien.</p> <p>The facts are stated in the opinion.</p>

<p>Motion to vacate judgment on forfeited recognizance and for restitution of money paid thereon.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the General Term of the City Court of New York adjudging the appellant, James Sutton, guilty of contempt of court in becoming a fictitious surety upon an undertaking given on an appeal to the General Term of this court from a judgment of the City Court in favor of plaintiff in the action.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages sustained by a fall on the staircase of the premises 152 Broadway, New York, alleged to be due to the negligence of the defendant’s company in not properly lighting the stairs. The plaintiff visited the building for the purpose of calling upon a subtenant of a portion of the premises, which portion had been leased to the tenant by the company.

<p>On an application by plaintiff, in an action to recover for injuries caused by negligence of the proprietors of a travelling show, for discovery and inspection of defendants’ books, it appeared that all the property of the show belonged to defendants; that a man in their employ was the ticket-taker and sent the collected tickets to defendants; that the main object of the show was to draw attention to patent medicines prepared and sold by defendants; that the accounts of the show were kept by defendants; that, after the fall of the seats, by which plaintiff was injured, they procured new seats for the show; and that they paid damages to some of the persons injured by such fall. The show bore the name of one called “ Nevada Ned” and was ostensibly conducted by him. Held, that these facts warranted the presumption that defendants’ books would show that they were the actual proprietors, and the order for discovery and inspection was properly granted; that the fact that one of the defendants, on a preliminary examination, swore that he was not able to testify fully without his books, and might therefore have been compelled to produce them to refresh his memory, was no ground for refusing the order for inspection, as such production might not have answered plaintiff’s purpose.</p>

The action was brought to recover an attorney’s costs, on an undertaking given by defendants on obtaining an order of arrest, which order of arrest had been set aside. The facts are stated in the opinion.

In May, 1885, the defendant, Daniel Donovan, commenced an action in the City Court of New York against the plaintiff, Robert G. Cornell, and obtained an order of arrest on giving an undertaking signed by Donovan as principal and the other defendants herein as sureties.

This was an action on the equity side of the court, in which the plaintiffs prayed for a judgment declaring the defendant Samuel H. Crook to be a trustee of a certain c1 lease for the benefit of the plaintiffs as administrators of Samuel H. Crook, Jr., deceased, and requiring an assignment of such lease by said defendant to said plaintiffs.

<p>On a motion to vacate an attachment, it appeared that, prior to January 14th, 1887, defendant was engaged in business as an importer of laces, having a special partner; that on that day, the- firm, being largely indebted, sold out its business and assets to C., who had, up to that time, been a cleric in its employ and was a nephew of the special partner; that defendant still continued in the business, superintending it as he had done before, and that on September 26th, 1887, C. made a general assignment for the benefit of creditors, having just previously confessed judgment to defendant for $26,265 for alleged loans o£ money, and having also assigned to defendant $12,000 of book accounts, at the same time claiming to owe defendant $75,000 out of a total of liabilities of $150,000. Plaintiff claimed that, at the time of the sale of the business, the firm was indebted to her in an amount exceeding $19,000 for money loaned; that at that time defendant informed her agent that he had sold out the business to C. for $100, which sum was all that defendant had in the world; and that C. was amply responsible, and had ample means to carry on the business; and that in reliance upon such representations she accepted the notes of C. without indorsement for her claim. Held, that the facts were suf-</p> <p>ficient to sustain the attachment, and that the fraud by which plaintiff was induced to take the notes of C. in payment of her claim, authorized her to disaffirm the agreement and revive the original indebtedness of defendant.</p> <p>An agreement under which plaintiff was to receive one-half of defendant’s share of profits in a business, as compensation for a loan of money, is not necessarily void for usury, and, as between the parties, does not constitute a partnership.</p> <p>The allegation that an account was stated between plaintiff and defendant, “ and upon such statement a balance of . . . was found to be due from the defendant to the plaintiff,” sufficiently charges a breach of contract, under section 636 of the Code of Civil Procedure, to sustain an attachment.</p>

<p>Appeal from an order of this court granting an examination of defendant before trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of this court entered upon the report of a referee.</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>

The action was brought to foreclose a mortgage of real property, and a referee was appointed to determine^what claims of creditors were liens upon the surplus anting-from the foreclosure of the mortgage, and their priority. The facts are stated in the following opinion rendered at Special Term, April 29th, 1887. y _ *

<p>A judgment on a forfeited recognizance will not be discharged because of the illness of the surety at the time the recognizance was forfeited.</p>

<p>Appeal from a judgment of the General Term of the City Court of New York affirming a judgment .of that court sustaining a demurrer to a complaint.</p> <p>The defendant was, at the times mentioned in the complaint in this action, a director in the American Opera Company, Limited,—a domestic corporation organized under the Limited Liability Act of 1875. The plaintiff is a judgment creditor of the said corporation in the amount of $145.04, with interest from January 29th, 1887, that being the day when said judgment was recovered.</p> <p>The complaint alleges the above facts, and also that said defendant was one of the incorporators of said company and a stockholder holding eighty shares of its stock which he has not fully paid for; and also that the original capital stock of said company was $250,000, which was increased on the 23d day of July, 1886, to $500,000, of which capital stock only $148,000 has ever been paid in. Said complaint further alleges that said defendant signed an annual report of such corporation, dated January 3d, 1887, which was filed in the office of the secretary of state, at Albany, New York, on or about the 20th day of January, 1887, and which was false in several material particulars. Judgment is demanded against said defendant for the amount of said judgment recovered by plaintiff as aforesaid, against said corporation.</p> <p>The answer denies that the shares of stock held by the defendant have not been fully paid for; admits that defendant is a director in said corporation and that he signed the annual report above referred to; admits, by not denying, that the whole of the capital stock of said company has not been paid in, and alleges that defendant has no knowledge or information sufficient to form a belief as to any of the other allegations in said complaint contained, including the various matters wherein it is charged* in said complaint that said annual report was false.</p> <p>For a further and separate defense to.the cause of action set forth in the complaint, the defendant alleges, “ That heretofore ,and before the commencement of this action, the defendant advanced and loaned to the said American Opera Company, Limited, the sum of $8,000, which sum was to be repaid to this defendant; but the same has not been repaid, and there is now due and owing to this defendant by the said American Opera Company, Limited, the sum of $8,000, on account of the money loaned as aforesaid.”</p> <p>To such so-called further and separate defense last quoted, the plaintiff demurred on the ground that the same is not sufficient in law, and states no facts sufficient to constitute a defense to this action. Such demurrer was overruled at the Special Term of the City Court. The interlocutory judgment thereon entered was affirmed at the General Term of that court; and from the order of affirmance plaintiff appealed.</p>

The plaintiff is owner of a lot of land on the corner of 70th Street and 9th Avenue, in the City of New York, upon which he is erecting a building. His work has progressed up to the laying of the first tier of beams.

The action was brought to recover certain moneys, alleged to have been collected for plaintiff by defendant acting as his attorney, and appropriated by defendant. The facts are stated in the opinion.

The plaintiff entrusted certain goods of the value of $100 to one Joseph Morton, Jr., a duly licensed auctioneer in the City of New York, to sell at public auction. Morton sold a part of the goods and received for the same $69, but never accounted to plaintiff for the same, nor for the goods unsold, but converted them to his own use and absconded to parts unknown.

Motion to dismiss exceptions taken at a Trial Term of this court and ordered to be heard at the General Term. At the trial of the action the complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance at the General Term. The case was settled, but was not printed by plaintiff.

<p>Defendant, as trustee of an estate consisting of extensive apartment houses, employed De K., husband of the beneficiary, as agent to take charge of the same. Plaintiff furnished labor and materials for such houses on De K.’s order without defendant’s knowledge. The income received from the houses was, by defendant’s order, after De K.’s discharge, and after notice that plaintiff looked to defendant for payment, applied to the payment of interest on a mortgage on the buildings, under a prior promise to the mortgagee to make such application. Held, that defendant was bound by De K.’s acts, and personally liable for debts contracted by him in the line of his authority, though he had no funds in his hands to pay the same; and the delay by plaintiff in not presenting his claim until after De K.’s discharge was no defense.</p>

<p>Plaintiff, while in defendants’ store for the purpose of purchasing a cloak, wishing to try on a cloak which she had selected, and fearing a draught, stepped into another department with the salesman, where she laid her own cloak on a counter intended for the exhibition and sale of goods, behind which there was a clerk waiting on customers, whose attention was not called by plaintiff to the cloak. She stepped a few feet away to the mirror, tried on the selected cloak, examined . and purchased it, and returned to the counter for her own cloak, but it was gone. Defendants had floorwalkers and a detective in that part of their store, part of whose duties it was to see that nothing was stolen from the store. They endeavored to find the missing garment, without avail. Held, that there was no bailment, as the cloak was not delivered to or accepted by any one in defendants’ employ; and even if there was a constructive deposit, it was a mere.gratuitous bailment for the bailor’s benefit, and, there being no gross negligence or fraud, plaintiff could not recover.</p>

Exceptions taken by plaintiff to a dismissal of the complaint at a Trial Term of this court, directed to be heard in the first instance at the General Term.

<p>In an action for wages as a driver or conductor on a horse-car railroad, the defense was á breach of a special agreement made by plaintiff, by which, for a violation of either of the rules requiring plaintiff to register every person getting upon the car and prohibiting him from receiving fare from a passenger, the sum of $15 was to be deducted from his wages then due or to become due, such sum to be considered as liquidated damages and not as a penalty, and a report of detectives of a violation of such-rules to be conclusive evidence. Held, that such agreement was valid and binding; that a failure to discharge plaintiff immediately upon the alleged breach was no waiver; and that it did not avail plaintiff to deny a breach of such agreement duly reported by two detectives.</p>

The action ivas for the foreclosure of a mechanic’s lien. The facts are stated in the opinion. The report of the referee to whom the action was referred adjudged that the defendants lienors, Moller and St. John, Hoyt, & Co., were entitled to the money found due from the defendant owner, Darmstadt, to the defendant contractor, Douglas, and that the defendant Steers was not entitled to any part thereof. From the judgment entered upon this report the defendant Steers appealed.

<p>Plaintiff was hired by defendants by oral contract for one year, the services to commence at a fixed date some, days after the making of the contract. At the end of the year he continued in defendants’ employ in the same capacity, receiving the same wages, for three months, when he was discharged without cause. Held, that the first contract was continued for another year by plaintiff’s holding over by the implied consent of defendants; that the new contract could not be affected by the alleged invalidity of the old one as in violation of the statute of frauds; and that the question of the invalidity of the first contract on such ground could not be raised, the contract having been fully performed.</p>

<p>The account and schedules of an assignee of a manufacturing business, verified by his oath, stated that he had paid a dividend of 32 per cent, to theoereditors. On the accounting it appeared that, as he purchased more than one-fourth of such claims (held by foreign creditors), at 25 per cent., having them transferred to persons in Ms employ, he or the assignors secured the difference of 7 per cent. Held, that such claims should be allowed, but only to the amount that the assignee had paid for them; that for such attempt to cheat the creditors he should be denied commissions; and that he should not be allowed the expenses of continuing the business, the only evidence in support of such claim being his own oath, and it not appearing that the estate was benefited thereby.</p>

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

The action was brought to foreclose a mechanic’s lien, and was referred to a referee. A motion to vacate and set aside the order of reference and the referee’s report was made by Morris, one of the defendants, appellant, on the ground of irregular and improper conduct of the referee, in receiving evidence and hearing counsel for some of the parties, after the case was closed, and in the absence of and without notice to the appellant.

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

The action was for damages for injuries sustained in falling into a basin or culvert in the sidewalk in front of No. 44 Beach Street in New York City.

The action was brought to recover damages sustained by an overflow of Croton water from defendants’ premises on the upper floor of the building known as 191 Church Street and 35 and 37 White Street in this city, whereby the goods of the plaintiff, which were in the first floor and basement of said premises, were injured. The answer was a denial.

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

The action was brought to recover damages for the loss of services of plaintiff’s wife, and medical expenses, alleged to have been occasioned by injuries sustained by her being struck by a clothes-pole which fell while being erected by defendant in the rear of tenement premises owned by him, and in which plaintiff leased rooms. At the trial, the jury found a verdict for defendant.

<p>Appeal from a judgment of the General Term of the City Court of New York modifying a judgment of that court entered on the verdict of a jury.</p> <p>The action was brought for false imprisonment. It appeared that plaintiff: and a companion, being suspected of theft of defendant’s goods, and the evidence being very strong against them, each accusing the other of the theft, were taken by defendant to the police station, and there detained by a police officer over night, and in the morning were committed by the police justice after hearing their stories. The case was twice tried. On the first trial the jury rendered a verdict for $50 damages. On appeal to the General Term, the court, considering that the evidence only warranted a verdict for nominal damages, reversed the judgment and ordered a new trial. On the new trial the jury again returned a verdict for $50 damages. On appeal from the judgment entered thereon, the General Term reduced the verdict to six cents damages and six cents costs, and, as reduced, affirmed the judgment. From that decision plaintiff appealed to this court.</p>

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

Appeals from an interlocntory judgment of this court directing a reference to take and state the accounts of a co-partnership, and from the final judgment entered upon the report of the referee. The facts are stated in the opinion, and in the report of the decision rendered on the trial of the action at Special Term (13 Daly 415), upon which the interlocutory judgment appealed from was entered.

<p>In an action by an administrator for the pecuniary loss sustained by the next of kin of plaintiff’s intestate from his death, alleged to have been caused by defendant’s negligence, it appeared that the intestate left no father, mother, widow, children, or other persons dependent upon him for support; that his only next of kin were a brother and sister in Ireland, and three nephews in New York City, where he carried on the business of junk dealer. The testimony did not show that he ever did anything to support or in any way assist any of these relatives, nor what he earned, or what the value of his life was to his next of kin. Held, that a verdict of $1,000 should not be set aside as excessive.</p>

<p>Appeal from an interlocutory judgment of this court overruling a demurrer to a complaint.</p> <p>The complaint alleged that defendant, the locator of certain mining claims in California, procured the incorporation under the laws of New York of the South Pacific Mining Company, a corporation organized for the purpose of mining, reducing, refining, etc., of ores, with a capital stock of $500,000, divided into a like number of shares; that he caused the officers of such company to issue to himself the entire capital stock in payment of a conveyance of the mining claims, and also procured the listing of the securities of such corporation on the New York Mining Stock Exchange, on various representations and reports as to the condition of the company and the value of its properties, and secured the confidence of the officers of the exchange and of plaintiff by procuring well-known men of financial ability to accept offices in such company; that the defendant from time to time gave to members of such stock exchange</p> <p>orders to sell large quantities of the stock, and to others of said members orders to buy at prices fixed by the defendant ; that the execution of such orders created a large apparent demand for the stock, and gave it an apparent market value; that plaintiff, in reliance upon the financial standing of the officers of the company, and in ignorance of the fraudulent acts of defendant, believing that the stock was fully paid and lawfully issued, and that the price at which it was selling upon the exchange was created by bona fide purchases and sales and represented its true market value, and in reliance upon 'the representations contained in said certificates, in good faith purchased upon the exchange, through a member thereof, 200 shares of the stock for $17,035, being the market price upon said exchange ; that the lots located as mining lots were not open to location, and neither defendant nor his company acqúired any title thereto, all of which was well known to defendant; that the stock was and is and always has been perfectly worthless, and that the prices at which plaintiff purchased wore wholly fictitious and created by the sales and purchases made on defendant’s order, for the purpose of deceiving the public, and that the company was organized and the stock issued for-the sole purpose of selling said stock to the public, and all the alleged acts were done in pursuance of a corrupt design to cheat and defraud the public, including plaintiff. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. On the argument of the demurrer at the Special Term, the following opinion, referred to in the subsequent opinion of the General Term, was delivered.</p>

<p>Defendant company, on transferring to plaintiff certain shares of its stock in payment of letters patent assigned by her, agreed “ that the dividends accruing” to plaintiff on such shares of stock “shall amount to at least $219 on or before May 17th, 1886, and to the additional sum of $219, on or before May 17th, 1887.” No dividend being declared by May 17th, 1886, defendant paid to plaintiff $219. A dividend of 5 per cent, was declared January 17th, 1886, and plaintiff was paid the same, amounting to $175, and also on May 17th, 1887, the difference between such dividend and $219. In July, 1887, the company declared a dividend of 3 per cent., but defendant refused to pay plaintiff any more thereof than the proportion earned after May 17th. Held, that dividends, unlike interest, do not “ accrue” until they are declared, and that plaintiff, under the terms of her agreement, was entitled to the whole of the July dividend.</p>

Appeals from a judgment of this court entered upon the decision on a trial by the court without a jury. The facts are stated in the opinion.

<p>In an action on an undertaking on attachment to recover, as damages, counsel fees incurred by plaintiff in the attachment suit, expert witnesses were examined as to the value of such services. Two of them testified that they were reasonably worth $150, and the plaintiff’s attorney himself testified that they were worth $250. The court instructed the jury: “ You will determine from the evidence presented to you from the witness stand, what compensation, 'between $150 as fixed by some of the witnesses, and" $250 as fixed by G. himself, he would be entitled to,” etc. “But as to the value of the services, you are bound by the evidence presented by witnesses, from the witness stand; you are not to rely upon any judgment that all or either of you may have, as to the compensation you should give an attorney for such services.” Held, that this was erroneous; the jury should exercise their own judgment upon all the facts in the case.</p>

<p>Where, on the decision of a demurrer, leave to amend or plead is given, the proper practice is to enter an interlocutory judgment containing such provision, and if the party does not avail himself of the privilege given to amend or to plead, then to enter final judgment in the action. The time allowed to amend or plead does not run until the entry of the interlocutory judgment.</p> <p>On the overruling of defendants’ demurrer to the complaint, in an action to foreclose a mechanic’s lien, with leave to plead within ten days, plaintiffs, after waiting the ten days, entered an order for judgment which was not in proper form, there being no proof taken and no direction for a sale of the property; and judgment was entered upon such order, which was also irregular for want of a provision for a sale of the property, and as containing a direction that a further judgment be entered against the property. Held, on appeal, that such judgments should be reversed, and, as the demurrer was not well taken, leave should be given to enter an interlocutory judgment upon the original order overruling the demurrer, without costs of appeal.</p>

<p>Motion for leave to appeal to the Court of Appeals.</p>

<p>In an action for an accounting of co-partne'rship affairs, defendant alleged a prior termination of the partnership by a written instrument of dissolution signed by both parties, and a settlement of accounts in accordance therewith. Plaintiff denied that he had signed such an instrument; but defendant’s testimony to its execution was corroborated by other instruments, afterward signed by plaintiff, transferring his rights in certain firm property, apparently in pursuance of the terms of the disputed instruments, and by a receipt, also subsequently signed by plaintiff, for a sum of money received from defendant “ in full of account and settlement; ” as to which receipt plaintiff alleged that the words above quoted had been added after he had signed it. Held, that while the burden of proof to establish the validity of these instruments, and the actual making of the settlement claimed under them, was on defendant, he made out a strong presumptive case by the production of the instruments themselves, and his own oath as</p> <p>to the genuineness of the signature and the circumstances attending their execution; and as the admitted facts did not support plaintiff’s denial, involving accusations of forgery and fraud, which the law is loath to presume, but rather corroborated defendant’s testimony, the weight of evidence was so clearly in defendant’s favor that findings by the referee in favor of plaintiff" on these points were error, for which a judgment thereon should be reversed.</p>

Plaintiffs bought a bill of goods from defendant, at the agreed price of $165.87, which, a few days later, they paid. Overlooking the fact of payment, plaintiffs, two weeks thereafter, sent defendant by mail the bill for the goods with a check for the price. The bill was receipted by the defendant and returned to plaintiffs, and the check was deposited and collected by defendant.

The action was brought to recover for the cost of repairing a roof and a party wall left in a jagged and dangerous condition by defendant after tearing down the adjoining building, and also for damages to the foundation of a stoop on the same premises, caused by defendant digging on his adjoining premises in the work of rebuilding thereon. Further facts are stated in the opinion. The jury found a verdict for plaintiff for $942.

<p>Where, on appeal from an order of the General Term of the City Court affirming an order granting a, new trial, the appellant, at or before the argument, discovers his mistake and asks permission to withdraw the, appeal, the court will dismiss it on payment of costs, where there is" no doubt of the appellant’s good faith in taking the appeal, and will not award judgment absolute against him.</p>

The action was brought to recover the sum of $40 lost in .defendant’s sleeping car. At the trial it appeared that plaintiff, a passenger in the sleeping car, when he retired for the night in his berth, placed his vest, in the inner pocket of which was a pocket-book containing the $40, under the pillow of his berth farthest from the aisle, being the pillow on which his head rested.

The action was brought to recover damages to goods caused by an overflow of Croton water from the premises occupied by defendants into the premises below them occupied by plaintiff in the building No. 68 Reade Street, in this city, of which premises respectively the parties were tenants. The damage occurred between Saturday night, May 19th, and Monday morning, May 21st, 1883.

The action was brought to recover the possession of goods of the value of $572 which had been sold by plaintiff to the defendants Phraner and Arthur, who were the assignors of the defendant Lewis, in whose possession the goods were when the action was commenced. The complaint alleged that the defendants wrongfully took the property from the plaintiff and that they wrongfully detained the same.

Exceptions taken at a trial term of this court ordered to be heard in the first instance at the General Term. The action was brought by Mrs. Feitner as widow of George Feitner, who died in May, 1882, for dower in the - premises on the north side of 48th Street, 375 feet west of 9th Avenue.

<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 made at a trial striking out an answer as frivolous.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendants from a judgment and order 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.

The action was brought to recover damages to an easement of light, air, and access to plaintiff’s premises, by the construction of an elevated road in the street in front of her premises. Further facts are stated in the opinion.

<p>Plaintiff and defendant entered into a contract by winch it was agreed that plaintiff should superintend the erection of four houses on defendant’s land, giving the necessary time thereto, defendant to furnish all the capital required, and, upon sale of the houses when complete, to pay plaintiff one-third the net profits, if any; that proper books of account should be kept, and plaintiff, in case the venture resulted in a loss, should pay one-third of such loss; that defendant should not further encumber the property without plaintiff’s consent, and should allow plaintiff $3 per week for incidental expenses, and $20 a week to be charged against his share of the profits, or, in case the venture resulted in a loss, to be repaid. Held, that such agreement constituted them partners, and that plaintiff, after the houses were completed, could compel a sale thereof, to the end that the partnership accounts might be adjusted and closed.</p>

The action was brought to recover upon coupons — 80 debenture coupons of $15 each, being six months’ interest on debenture bonds, payable February and August, 1887 ; six coupons of first mortgage bonds $30 each, payable January and July, 1887; and interest on debenture coupons due February and August, 1887.

<p>A debt due a citizen of New York from a resident of another state may be attached in the latter state under garnishee process, by a resident of that state to whom the citizen of New York state is indebted, where the laws of such state allow the attachment of debts; and such attachment is a good plea in abatement of an action by the citizen of New York to recover the debt.</p>

The action was brought to recover for damage to a cargo of malt, on board of the canal boat “ George Knight ” in transit from Newark to New York, insured by an open policy issued by defendant.

<p>In an action brought in Hew York by a husband against his wife for' separation on the ground of abandonment, it appeared that the parties were married in Pennsylvania and resided there together; that the husband subsequently took up his residence in Hew York, and the wife refused to follow him, but continued in Pennsylvania, such refusal and continuance being the alleged'abandonment. Held, that the courts of Hew York had no jurisdiction, the residence of the husband in Hew York not drawing with it the residence of the wife so as to make them both residents of the state within section 17G3 of the Code of Civil Procedure.</p>