Volume 14 — Jones & Spencer's New York Superior Court Reports

The facts are as follows: On February 17, 1873, the plaintiff made his bond, in the sum of $15,000, payable on February 15, 1875, to one Luyster, and to secure payment of the bond, mortgaged certain real estate. On February 18, 1873, the plaintiff conveyed to the defendant the mortgaged premises, subject to the mortgage.

Plaintiff appeals from an order made at the trial term after judgment, and after the usual motion on the minutes had been argued and denied, granting defendants a new trial, on the alleged ground of surprise and newly-discovered evidence, set forth in affidavits in which an order to show cause at the trial term after judgment was obtained from the justice holding the term, after he had denied by formal order the motion made on the minutes..

58 of their alleged claim, and that the action be severed, and they be at liberty to discontinue or proceed with the action as to the residue, under section 511 of the Code of Civil Procedure. Or that the del fendant be directed to pay that sum into court, pursuant to section 717 of Code, on the ground that cause therefor is shown by the moving papers.

Appeal by the defendant, from an order adjudging him guilty of contempt, and fining him $250. Also appeal by the plaintiffs from the denial of their motion to fine the defendant for the amount of plaintiffs’ judgment, with interest, costs and disbursements.

Appeal by the defendant, James I. Brooks, from a judgment directing a transfer to the plaintiff of certain capital stock and bonds of “The Silver Islet Consolidated Mining and Land Company.” The judgment was entered upon findings made by Sedgwick, J., at special term. The plaintiff sued to compel the specific performance of an alleged contract, to sell and deliver, under certain conditions, to the plaintiff, the bonds and stock above mentioned.

Appeal by the defendant from an order denying motion to strike out the plaintiff’s reply. The plaintiff sued to recover damages alleged to have been sustained through the defendant’s negligence. The defendant set up as a distinct defense that the plaintiff had released the cause of action. The plaintiff replied that the release was obtained by fraud, and undue influence, and without consideration.

This action was brought to compel the defendant Hauselt to account, as assignee of the firm of Rancke & Rust, of which firm the plaintiff was a member. Upon a trial at special term the plaintiff’s complaint was dismissed, and an affirmative judgment was rendered against him. This judgment was reversed at general term, and a new trial ordered.

An action was brought by Gustav Amsinck and -Gustav H. Gossler against two defendants, as partners under the firm name of Hernandez & Tracy, upon an indorsement, in their firm name, of a bill of exchange. The summons was served upon the defendant Hernandez only, notwithstanding the other defendant, 'Tracy, resides in the city of New York.

The action is brought upon a contract made between the plaintiff and the defendant to recover $4,500 and interest, which the plaintiff claims to be due from defendant on a sale to him of one-half interest in a contract averred to have been made between the Consolidated Tobacco Company of California and the firm of William A. Park & Co., of which the plaintiff was a member, constituting that firm sole agent of the California Company.

A demurrer was interposed to the complaint, which was sustained by the special and general terms of the court, but overruled by the court of appeals, which ordered judgment for the plaintiff on the demurrer, with leave to the defendants to answer on payment of costs within thirty days. Before the expiration of the thirty days the plaintiff obtained an order at special term, which was opposed by the defendants, granting an extra allowance to the plaintiff of §150.

<p> Costs in an Equity Action. </p> <p>1. Unsuccessful administrator-defendant.</p> <p> (a) Not entitled to, when. </p> <p>1. The court, upon adjudging that a fund in the hands of an administrator-defendant which he claims belongs to his decedent, in fact belongs to the plaintiff, and that neither the administrator nor his decedent has any interest therein, cannot direct the payment of the defendant’s costs out of such fund. '</p>

<p>I. Marine Insurance.</p> <p>1. SEAWORTHINESS, WARRANTY OF.</p> <p>(it) Implication of. The mere fact of effecting the insurance, independently of the particular terms used, impliedly warrants that the vessel at the commencement of the voyage is seaworthy.</p> <p>(Z>) Extent of the warranty. That the material of which the vessel is made, its construction, the qualifications of the captain, the number and description of the crew, the tackle, sails, and. rigging, stores, equipment and outfit generally, are such as to render it in every respect fit for, and able to encounter with safety the ordinary perils of the proposed voyage or service. It extends to qualities and defects of the vessel unknown, and that could not have been known, no less than those known, to the assured.</p> <p>(c) Condition precedent. This warranty is a condition precedent to the policy attaching, and the burden is on the assured to prove seaworthiness, whether the loss or injury proceeded from a want of it in any particular or not.</p> <p>(d) Waiver or modification of the warranty.</p> <p>1. Burden of proof as to.</p> <p>It rests on the assured to establish.</p> <p>2. What will not operate as.</p> <p>1. Measures taken by the assurer, such as having a survey made to satisfy himself as to the sea-worthiness of the vessel, will not of themselves so operate.</p> <p>2. Description of vessel in policy. The fact that the vessel had been built for sound and inland navigation, that the assurer knew such fact, and that by the policy she was described as “the Steamboat Novelty,” do not, as matter</p> <p>0 of law, restrict the implied warranty of general seaworthiness to a limited warranty of seaworthiness for sound and inland navigation, n. Application of above principles.</p> <p>A vessel which had been built for sound and inland navigation, which fact was known to the assurer, was insured under the description of “ the Steamboat Novelty,” at and from Newark, New Jersey, to the St. John’s River, Florida, with privilege of port or ports on the way. The assurer required that the vessel should be surveyed by an inspector in their employ, who should report on her condition to it, before it would accept the risk, and. also required that the assured should pay the inspector’s fee for making the survey. The inspector made the survey, and rated the vessel “A. 1% for sound and inland navigation,” but did not refer to a novel arrangement of the machinery, and the peculiar application of the propelling power, which, of itself, according to the opinion of some of the witnesses, rendered the vessel unseaworthy. After this report, the policy, dated November 2, 1876, was issued. The boat started from Newark, November 27, and lay at Clifton Dock, Staten Island, over night, leaving</p> <p>there to go down the bay on the morning of the 28th. When a little below and about a mile and a half from the Staten Island shore, she collided with a schooner coming up the bay. The collision broke a hole in the side of the Novelty, and she was run in towards the Staten Island shore, and beached about fifty yards out from the shore, her bow resting on the bottom and her stern swinging. On the 39th, a notice of abandonment was served on the assurer, which was not accepted.</p> <p>Held,</p> <p>A chwt'ge that, as matter of law, there was under these facts a modification of the warranty of seaworthiness, and a refusal to leame to the jury the question whether there was, in point of fact, any waiver or modification, were erroneous.</p> <p>1. Immaterial error.</p> <p>1. There being abundant evidence upon which fhe jury might have found a breach of the warranty, in case there „ was no waiver or modification, the errors cannot be regarded, as immaterial, so as that the charge could be sustained, notwithstanding their commission.</p>

<p>Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury for §4,159.61, and from the order denying a motion for a new trial on the judge’s minutes.</p>

<p> Negligence— liability of carriers of passengers for—intervening carnes of injury. </p> <p>While the plaintiff, a passenger in one of defendant’s ships, was" lying in her berth, the tier of berths above suddenly gave way, and tilted down towards her, causing great noise and confusion; immediately after, and before she had recovered self-possession, the steward of the ship pulled her from the berth and tried to set her upon her feet; before she was free from his control and firmly on foot, the ship made a lurch which sent her along the floor, against the door on the other side, and back to the floor, thereby causing her severe injury. The negligence pleaded was the defective construction of the berths.</p> <p>JSeld, that it was the duty of defendant, as a common carrier of passengers, to use the utmost care and foresight in the maintenance and construdtion of said berths; that the falling of said tier was presumptive evidence of negligence on defendant’s part; that from the time of the falling thereof to the time of the injury of plaintiff, there was a continuous and connected series of occurrences induced or caused by the falling, and the plaintiff never having been placed in a position where she must herself bear the risk of the motion of the vessel, having been deprived of her bodily power to protect herself by the act of defendant’s agent, the defendant is liable for the injuries so suffered by her.</p>

The action was for damages for false imprisonment. In an action of Leitch against the present plaintiff, an order of arrest was made, and under it the present defendant, through his deputy, arrested the present-plaintiff. The plaintiff, giving bail, was discharged by the sheriff.

Motion to dismiss appeal. After the respondent had obtained judgment below, the appellant stayed proceedings upon it, by giving the usual undertaking with two sureties. On their justification, one was held sufficient, and the other insufficient. The appellant obtained further time, in which to serve a new or further undertaking.

The complaint charged that plaintiff, being the owner of the stock, business and good-will of a printing office, at No. 9 Spruce street, in the city of New York, the defendant became and remained his agent in said business, and had entire charge thereof, as foreman or superintendent; that it was agreed between them that “ defendant was to devote his entire time and his best energies to plaintiff’s business, and was to account faithfully to plaintiff for all profits realized…

The complaint alleged that the plaintiff was on, &c., a scholar, attending a public school of the city, in the 4th ward ; that five of the defendants were then, &c., “holding the office known as ward trustees or school trustees of said ward, and were charged with the care, custody and safe keeping of said school building and premises, and with the duty of keeping the same at all times repaired, and in a secure, safe and proper condition at all times, for the use of this…

Appeal by defendant from judgment and from order denying motion for new trial. This was an action upon a policy of marine insurance. A cargo of potatoes had been insured “ free from particular average.” While the canal boat that contained the cargo was moored to the dock, after her arrival at Yonkers, to which the insurance was made, she was sunk by a storm. The cargo was submerged, with the exception, as the testimony left doubtful, of a small part of the cargo.

The action was for false imprisonment. The complaint charged that the defendant, being a member of the police force of the city, maliciously and illegally compelled the plaintiff, against his will, to go with him to a police station-house, &c. The answer alleged, that at the time, &c., the plaintiff was acting in a loud, disorderly manner at night, in the public street, and. was guilty of conduct tending to a breach of the public peace and quiet; and upon the defendant’s…

Appeal by defendant from judgment and from order denying motion for new trial. . The complaint showed that the plaintiff was a midwife, and that the defendant was the publisher of the World, a newspaper published in the city of New York. That defendant maliciously published a false and. scandalous article in its paper, and that thereby the plaintiff has been injured in her trade and business as a midwife.

<p>Appeal by plaintiff from judgment.</p> <p>The action was begun by the plaintiff against The Mutual Life Insurance Company, to recover the amount of a policy of insurance upon the life of Henry Goldsmith, for the benefit of his wife, Pauline Gold smith, the present defendant, and assigned by her to the plaintiff. The insurance company was allowed by order to substitute the present defendant in its place, having deposited in court the amount due upon the policy.</p> <p>The policy was payable to the wife, on the death of her husband, or if he should be living on November 1, 1880, then, on that day. The husband died in 1877. Before his death, his wife assigned the policy to the plaintiff, by an instrument in writing which guaranteed “the validity and sufficiency of the foregoing assignment to the above named assignee.” The assignee paid four quarterly premiums, before the death of Mr. Goldsmith.</p> <p>The court held that the assignment was void, for want of power of the wife to assign, and adjudged that the defendant was entitled to the fund in court, excepting an amount equal to the premiums paid by the plaintiff, which amount was adjudged to be paid to the plaintiff.</p>

<p>Appeal from order, denying defendant’s motion to correct the form of judgment. The facts appear in the opinion of the court.</p>

<p>Appeal from judgment. The facts appear in the opinion.</p>

This is an appeal from a judgment of the special term on the report of a referee, sustaining a demurrer to the- complaint, on the ground that it does not set forth facts constituting a cause of action.

<p> Motion to charge person beneficially interested, with costs * </p> <p>It is within the discretion of the court, and is a proper exercise thereof, to deny, as prematurely made, a motion to charge the person beneficially interested in the recovery in an action (2 B. 8. 619) with the payment of a judgment for costs entered therein, when an appeal from said judgment is ponding at the time said motion is made, though no security upon appeal has been filed, and no stay of proceedings granted. The denial of the motion upon said ground may be deemed equivalent to a stay.</p>

The action was brought upon a policy of insurance whereby the defendant insured Allen Brothers against loss or damage to a cargo of paper upon the canal boat W. S. Alden, on a voyage from Troy, N. Y., to Philadelphia, Pa. The boat was towed to New York, and went alongside a certain pier in the North River. While there, the sea being heavy, the swell of a steamboat rolled her so that she spilled a part of the paper which was on her deck. The loss was thereby occasioned.

<p>Appeal from judgment. The facts appear in the opinion.</p>

<p> Attorney and client—Evidence. </p> <p>In an action brought by a client against her attorney, to recover moneys alleged to be wrongfully detained by him, the main fa¿t at issue was whether a certain sum of money was paid by her to the attorney in satisfaction of his charges for services, &c., or whether the said sum was delivered t.o him upon the understanding that part thereof was to be received in full satisfaction of his said charges, and the remainder to be used in settling certain claims which were (as alleged by the client) falsely stated by said attorney to exist,—Reid, error to refuse to charge that the jury might consider the value of the attorney’s services, and the disbursements incurred by him for said client, as having a bearing upon the probabilities of the case.</p>

<p>Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial upon the minutes.</p>

The action is brought for goods sold and delivered to, and for work, labor and services rendered for the firm of W. Gr. & J. E. McCormack, of which firm it is alleged the defendant Fowler was a partner, by virtue of an agreement annexed to the complaint. The answer denies the partnership, and sets up special defenses. The court dismissed the complaint on the ground that defendant Fowler was not a partner with the McCormicks. The facts appear in the opinion of the court.

<p> Motion to compel successful party on appeal to perfect judgment. </p> <p>When judgment of affirmance is rendered by the general term, it is the duty of the respondent to prepare and file a proper judgment-roll, based upon the said decision, and the appellant has a right to insist upon the performance of that duty. This is so, though the appellant has failed to file the printed case and exceptions as settled, under rule 85, the point not having been raised at the argument of the appeal, and the proposed case, proposed amendments and settlement of tne judge having been filed.</p>

<p> Former recovery—action, to recover installment on cont/ra6t-*-when barr to action for breach. </p> <p>Plaintiff having been wrongfully discharged from defendant’s employment, brought action to recover certain installments of her wages, being all that she would have been entitled to under the contract at the time the action was brought. The complaint was in form for wages, but it appeared upon the face thereof that no services were rendered after plaintiff’s discharge. Judgment was taken by default, and was paid in full by defendant.</p> <p>Field, that the above recovery exhausted plaintiff’s remedy for damages for breach of contract, and is a bar to a subsequent action therefor.*</p>

Appeal by the defendants, executors, &c., of Abraham Levy, deceased, from an order appointing the plaintiff receiver of rents and protits of certain real estate devised by the deceased, pending an iaction for a partition of the same.

Appeal by the defendant, from a judgment for $15,695.16, entered upon the verdict of a jury, and also from the order, denying a motion for a new trial upon the minutes. The facts sufficiently appear in the opinion of the court.

<p>Guardian ad litem.— Security for costs.</p> <p>A guardian ad litem is responsible for costs under the Code of Civil Procedure, but he is not required to file security therefor.</p>

<p>Motion for re-árgument by respondent. The facts appear in the opinion.</p>

<p>Appeal from order denying motion to open inquest and for leave to serve a supplemental answer setting up discharge in bankruptcy.</p> <p>The facts sufficiently appear in the opinion.</p>

The action was brought by plaintiff to recover, of the sheriff of Mew York county, damages for the conversion of property which plaintiff owned at the time of the conversion. Before the time to answer the complaint had expired, the sheriff’s indemnitors, under and in pursuance of sections 1,421 to 1,426 of the Code, were substituted as defendants in the place of the sheriff.

<p>Appeal by plaintiff from judgment entered on verdict directed by the court.</p> <p>• The facts appear in the opinion.</p>

The complaint alleged, in substance, that defendant employed plaintiff, an attorney-at-law, to sue for and collect a certain claim held by him against the United States government, upon a contingent fee of one-half of all sums thereafter recovered for, or paid back to, him, the defendant, his representatives or assigns, on account of the claim referred ; that under this agreement plaintiff rendered services and expended money, and through attorneys employed by him caused a…

<p> Judge's charge—error in, when not cured by subsequent cha/rge.—Gortmwn carrier.—Burden of proof. </p> <p>Where the court erroneously charges the jury, as matter of law, that a certain material fact is as contended by plaintiff, such error is not cured by a subsequent charge, made upon request of defendant’s counsel, to the effect that the burden of proof is on plaintiff to show the said fact to be as claimed by him, and that on the evidence in the case it is a question for the jury whether it is so or not, and if they believe such to be the fact, they will find, &e.,—the original charge in that regard not having been withdrawn.</p> <p>In an action against a common carrier for loss of goods, alleged to have occurred by the negligence of the carrier, the burden of proof as to the delivery of the goods is on the plaintiff.</p>

<p>Appeal from order directing that attachment issue against the late sheriff of the city and county of New York.</p>

The complaint alleges in substance that defendant engaged the services of plaintiff as a professor in its seminary, and employed him as such for one year from July 1, 1873, to July 1, 1874, and agreed to pay him for his services at the rate of $1,300 per annum, and the occupation of a certain house; that he entered on his employment and performed the duties thereof until July 10, 1873, when he was discharged ; the defendant, during the whole of the period from July 10, 1873,…

<p>Appeal from judgment and order overruling demurrer.</p> <p>The facts appear in the opinion of the court.</p>

This action was brought to recover damages alleged to have been sustained by plaintiff’s testator, by reason of defendants obtaining from him by false and fraudulent statements and misrepresentations, and by fraudulent concealment, for a small consideration (to wit, §35), a deed or release of the northerly half of a street sixty feet in width, lying between lots 140 and 143, and the East road (now Fourth avenue), and the Middle road (now the Fifth avenue) as shown on a map…

<p>Mistrial—what constitutes—Surrogate—effect of order of under chapia' 394, Laws 1870—jurisdiction of—Bes adjudicata.</p> <p>In this case the judge upon the trial, after the parties had rested, stated that if the plaintiff would stipulate to make and print a case for the general term, and that, In case of his failure there to maintain his verdict, a verdict should be entered for defendant, he would direct a verdict for the plaintiff, and order the- exceptions to ■ be heard in the first instance at general term. The required stipulation being given, a verdict was thereupon, by consent of counsel for both parties, directed for the plaintiff, and the exceptions ordered to. be heard in the first instance at general term.</p> <p>Meld, that in the absence of an exception to the direction of a verdict, defendant can have no relief from the general term, other than a new trial, upon the ground that there was a mistrial ; that the foregoing arrangement was a confounding of the two remedies by which the proceedings upon a jury trial cati be reviewed in the first instance at general term, before judgment.</p> <p>The action was brought by plaintiff as administrator, to recover certain moneys deposited in a savings bank in the name of defendant as trustee, for plaintiff’s intestate.</p> <p>Meld, that, an order of the surrogate, under chapter 394, Lams 1870, deciding that said administrator, by virtue of his office as such, was entitled to the custody of the bank-book, was not an adjudication of his title to the funds represented thereby ;* also held, that the surrogate had no jurisdiction to try such a claim, and that the defect was not waived by the appearance of the parties.</p> <p>What constitutes res actjudicata, and how a party may avail himself thereof; also jurisdiction of surrogate, when must be shown and how,—considered by the court.</p>

Sixth avenue. There was a former trial, oh which judgment was rendered in favor of defendant; an affirmance by the general term of this court (39 Super. Ct. 372); and a reversal by the court of appeals.* The action was brought to enforce the provisions of a covenant contained in an agreement, dated July 25, 1859, from the plaintiffs to one Joseph Beers, forbidding the use of the said premises for business purposes.

<p>I. Meal estate.</p> <p>1. ADVERSE POSSESSION.</p> <p>(a) Grantor, in favor of.</p> <p>1. Adverse possession can commence and run in favor of a grantor, as to either the whole or a part of the granted premises.</p> <p>1. Tim, though he has never given the grantee possession.</p> <p>1. Evidence to establish. It should show a clear, unequivocal and notorious disclaimer of the grantee's title.</p> <p>1. In this case held such disclaim.</p> <p>(5) Corporation, title by adverse possession.</p> <p>1. Has power to acquire such title in protection of an undoubted power to hold the lands in question.</p> <p>(s) Warranty deed, effect of as estoppel.</p> <p>1. does not estop grantor from beginning an adverse possession, and acquiring thereby a title which will not accrue to the benefit of the grantee.</p> <p>1. Possession, effect of not giving.</p> <p>The above is the rule equally when possession is not given, as when it has been given and there has been a re-entry.</p> <p>(d) Implication from adverse possession, and policy of</p> <p>DOCTRINE OF.</p> <p>1. It necessarily implies that a title has been competently aaguirred through one or another of the methods of transferring title recognized by law, and which, if relied on by a warrantor, who had not gained title by adverse possession, mould enure to the benefit of the covenantee.</p> <p>But</p> <p>Where title by adverse possession is relied on, the Policy of law forbids an examination of any particular claim from its conclusive presumptions that there has been some unquestionable claim.</p> <p>8. STREET OPENINGS IN THE CITY OP NEW YORK.</p> <p>(a) Land not bequibed fob a stbeet, effect of making and</p> <p>BECEIVING AWABD THEBEFOB.</p> <p>1. An award by commissioners for land not required for the street, but which is a part of a lot, a portion of which was required,, and which the commissioners deem it expedient to include in their estimate and. assessment, and the ac- . ceptance of such award operate as a conveyance of the land to, and vest the title in, the corporation of the city of New York.</p> <p>H. PRESUMPTIONS AND ADMISSIONS.</p> <p>(a) Evidence.</p> <p>1. Oannot he relied on (when they do not operate as an estoppel) to the exclusion of decisive evidence as to the matters to which they relate.</p>

<p>The questions determined in the following opinion arose on a trial by the court and jury of the issues in this action, which, as to the defendants Henry Clews- and Theodore S. Fowler, had been directed to be tried by jury (see 43 Super. Gt. 411, 416; affirmed, 76 N. Y. §598.)</p> <p>The pleadings upon which the questions relating to the discharge in bankruptcy of defendants Clews and Fowler, aver as follows :</p> <p>The original answer contained this averment:</p> <p>“ I. The answer of the defendants Henry Clews and Theodore S. Fowler, to the complaint in this action, by J. M. Gruiteau, their attorney, shows to the court on information and belief that these defendants, on the twenty-eighth day of November, 1874, on petition of certain of their creditors, were duly adjudicated bankrupts under the laws of the United States, and such proceedings were thereafter had, that Nelson J. Tap-pan, Esq., was duly elected and appointed the trustee of said defendants, having as his committee Cornelius F. Timpson, William F. Drake and Allan H. Munroe, and that the said trustee succeeds these defendants to all their interest and property in the securities mentioned in said complaint.”</p> <p>The supplemental answer was as follows:</p> <p>“ The supplemental answer of the defendants, Henry Clews and Theodore S. Fowler, to the complaint in this action, served by leave of the court, first had and obtained, shows to the court that subsequent to the service of the original answer herein, in pursuance of the bankruptcy proceedings mentioned in said answer, and the order of the court of bankruptcy, the district court of the United States for the Southern District of New York, sitting as a court of bankruptcy, did make an order and grant to said defendants certificates of discharge under the /seal of said court, on the 24th day of December, 1875, discharging the above-named defendants and each of them, forever, from all debts and claims which, by the Revised Statutes of the United States, title Bankruptcy, are made provable against the estate of said defendants, which existed on the 18th day of November, 1874, excepting such debts, if any, as are by said law excepted from the operation ■of a discharge in bankruptcy.</p> <p>“ Wherefore these defendants, Henry Glews and Theodore S. Fowler, ask that whatever claim may, by the judgment of this court, be against them, maybe adjudged discharged by the aforesaid order and decree of the United States court, and that these defendants have a judgment for costs in this action, and such other relief as to the court may seem just.”</p> <p>The amendment to the supplemental answer allowed fry the court on the trial was the insertion, after the word “bankruptcy” and before the prayer, of the following: “The copies certificates of the bankruptcy discharge of each of the defendants are hereby hereunto annexed, marked respectively, Exhibit A and B, and to be taken as part of this answer.</p> <p>“And the defendants further allege that the claim and indebtedness set forth in the plaintiff’s complaint herein is one that was discharged by the operation of said bankruptcy discharge, and was provable in said bankruptcy proceedings, and was not one which was ■exempt from the operation of the bankruptcy statutes.” The copies were annexed.</p> <p>The issues were tried before his Honor John J. Freedman and a jury. In the course of the trial his Honor rendered the following opinion:</p>

Appeal by assignee in bankruptcy from order denying the prayer of a petition made by him, that the judgment entered be set aside, and that the assignee be substituted in place of- defendant, and allowed to serve answer and defend. On the hearing of the petition the following appeared to be the facts: The plaintiffs, being partners in business with defendant, brought, this action for a dissolution of the copartnership, and an accounting.

<p> Recovery of costs against party beneficially intei-ested in claim. </p> <p>Where the owner of a claim assigns the same to a third party, upon consideration that the said assignee shall begin and prosecute an action thereon, at his own expense, and when the said claim is collected pay to the assignor one-half of the amount received over and above all costs, said assignor is beneficially interested in the recovery, under 2 R. 8. 619, § 44, and is liable for the costs of the action so brought. This, though he did not retain or appoint the attorney, or furnish funds for the prosecution of said action, or in any way interfere therewith, or direct the progress thereof.*</p>

<p>Appeal by the defendant from a judgment in favor of plaintiff, entered upon a verdict for $3,000, and from an order denying a motion for a new trial on the judge’s minutes.</p> <p>The action was brought to recover for personal injuries suffered by the plaintiff while in defendant’s employment, from the machinery of a printing press while in motion.</p> <p>Among many exceptions taken upon the trial by the defendant was one to the ruling of the judge permitting the plaintiff to exhibit to the jury his right arm, which was greatly mutilated and injured ; there was also an exception to the judge’s charge in regard to damages, which is fully stated in the opinion.</p>

<p>Appeal from an order denying the defendant’s motion that the plaintiff be required to give security for costs.</p> <p>This action was brought to recover the sum of §6,000, which the plaintiff claims to have deposited with the defendant in 1874. The answer admits the receipt of the money, but alleges that it was to be applied to certain purchases for the plaintiff’s benefit; that it was so applied, and that not only was the amount deposited by the plaintiff exhausted in such purchases, but that the defendant advanced moneys on the plaintiff’s account, for which he counter-claims. The complaint was served August 8, the answer September 8, and the reply December 34, 1879. The case was noticed for trial in February, 1880, and was on the calendar, at the time of this appeal, but had not been reached. The order to show cause in this matter was granted July 14, returnable August 5, 1880 ; the order denying the defendant’s motion, now appealed from, was entered September 7, 1880. It was alleged in the plaintiff’s affidavits, used upon this motion, that the plaintiff and defendant were formerly on terms of intimacy, and that the defendant well knew at the time this suit was brought that the plaintiff lived in Brooklyn.</p>

<p>‘Order for hearing of exceptions at general term—when may be made.— Motion to vacate order—irregularity must be specified.</p> <p>.It is not irregularity for the trial judge at the same time that he denies defendant’s motion for a new trial on the minutes, to order the exceptions to be heard in the first instance at general term, there being but one motion, viz.: for a new trial.</p> <p>.It seems, that a motion that the exceptions be heard in the first instance at general term, may be made after the denial of a prior motion for a new trial on the minutes upon exceptions.</p> <p>"Upon a motion to set aside an order for irregularity, the order to show cause must, under rule 37, specify the irregularity, even if it appear in the affidavit.</p>

The action was begun in September, 1878, its object being to set aside an insurance policy for fraud, and to recover moneys paid on account thereof. The answer denied any fraud, and alleged that the plaintiffs acted with full knowledge of all the facts and circumstances in reference to the matters complained of. Issue having been joined, the case was on the calendar of this court at the May term in 1879, and went over at the request of plaintiffs’ counsel.

<p>Appeal from an order directing the defendant to serve a bill of particulars.</p> <p>The plaintiff, claiming to be the owner, by assignment from one Doody, of a draft for $1,000, drawn to the order of Doody by one Patrick Brennan, upon one Henry Heyman, on November 1,1876, and duly accepted by Heyman, sues, alleging substantially a conversion of the draft and of $800 collected upon it by the defendant, who is an attornéy. The assignment of the draft to the plaintiff is alleged to have been made September 27, 1877. The defendant, among other defenses, alleges that the draft was put in his hands for collection by Doody, the owner, upon the agreement between Doody and himself that he should place the proceeds, above the expense of collection, to the credit of Doody, on account of divers moneys then and theretofore owing to him by Doody, and on account of contracts, liabilities and obligations then and theretofore assumed by him for Doody ; that Doody was largely indebted to him for professional services (to the amount of at least $1,100). In another subdivision of his answer the defendant alleges that he having performed all the conditions on his part, to be performed by said agreement, by applying the money coming to him as he was directed by his agreement with Doody, Doody released and discharged him from every obligation growing therefrom, and “growing out of any other matter or thing from the . beginning of the world.” The plaintiff demanded a bill of particulars. It was not furnished. Thereupon a motion was made before the late Chief Judge Curtis for a bill of particulars, or that the answer be made more definite and certain. The order granted directed the defendant to grant a bill of particulars :</p> <p>First. As to the contracts, liabilities and obligations alleged in the answer to have bpen assumed by the defendant for Doody, and of the moneys stated to be due from Doody to the defendant.</p> <p>Second. Of the time, place and amounts of the indebtedness mentioned in the eleventh paragraph of the answer—that is, “a large indebtedness from said Doody to this defendant, and this defendant at said time was largely obligated and liable for certain matters to outside parties for said Doody.”</p> <p>Third. As to the moneys mentioned in the twelfth paragraph of the answer as having been paid by the defendant, &c.; and,</p> <p>Fourth. As to • the indebtedness for professional services.</p> <p>From that order the defendant now appeals to this court.</p>

R. Co. Also, appeal from order dismissing plaintiff s motion to continue injunction and to punish the Baltimore & Ohio R. R. Co. and John W. G-arrett for contempts; vacating order bringing in the American- Union Telegraph Co. as a party defendant and authorizing sup-' plemental summons and complaint; vacating order of injunction granted against it; and dismissing supplemental summons and complaint.

<p>Appeal from judgment.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendant from judgment, and from order denying a motion for a new trial.

<p>Appeal from judgment, dismissing complaint at the trial term.</p> <p>The action was under the statute, for compensation, for the pecuniary injury to the next of kin of the intestate, from the death of the intestate, caused as alleged by the negligence of defendant’s servants.</p> <p>At the trial, the complaint was dismissed on the ground, that, by the preponderance, of testimony, it appeared that negligence of the deceased contributed to the cause of the injury.</p>

This was an action for damages, from an alleged unlawful conversion of plaintiff’s goods and chattels, by defendant’s intestate, in taking and selling them under distress warrants for rent, in the State of New Jersey. The intestate was the ground landlord. He leased the premises to Moses H. Bean. Moses H. Bean leased them to one Ely, for the unexpired term, and also the goods, chattels and household furniture in the house.

The action was by the plaintiff, as general assignee of one Scheuer, for the benefit of the latter’s creditors. The complaint charged a wrongful taking and conversion, by defendant, of Scheuer’s goods. On the trial it appeared that the defendants had begun an action in the supreme court on an account stated, and that, in such action, they applied for and obtained an order of attachment.

Appeal by defendant from judgment. The action was on a policy of defendant that insured, for the benefit of the plaintiff, her husband’s life. On the trial, the testimony showed that the application for the policy was made by the husband for the plaintiff, and in her name, and her name was signed to it by him as her agent. The .application contained the following questions: “Q. (A) Are your habits of life correct and temperate ?

<p>Appeal is only from an order denying a motion on the judge’s minutes, under section 999 of the Code, for a new trial.</p> <p>The action charged the defendant with negligence through its servants, for damages for personal injuries to plaintiff, and resulted in a verdict for the defendant.</p> <p>It appears that the plaintiff, a woman fifty-four , years of age, while in the act of crossing Canal street, a little west of Mott street, was knocked down by the near horse of the team attached to one of defendant’s street-cars, which was then going westerly on the northerly railroad track in Canal street, and one of her feet injured by one of the car wheels. The plaintiff, prior to the accident, was employed in lucking hair which is used for mattrasses, cushions, &c., and on this occasion had obtained, from a store on the south side of Canal street, two rolls of hair about three feet long and a foot and a half thick, weighing about twenty-eight to thirty pounds each. These rolls were placed on her right shoulder, one on top of the other, and their dimensions and position were such as to obstruct both her vision and hearing on the side which was the direction the car was coming. Other facts will appear in the opinion.</p>

The plaintiff brings the action in ejectment against the defendant, Darcy, to recover possession of a lot of land in the city of New York, on the north side of One-Hundred-and-Twentieth street, twenty feet in front, by one hundred feet in depth ; the easterly side of the lot being one hundred feet from Third avenue. Darcy claimed to be lessee of the city, and the Mayor, Aldermen, &c., on their application, were joined as defendants, and had leave to answer.

, entered on March 19, 1880, for $969.93, and against the defendant, Noonan, for the sum of $1,004. 93. • The defendant, Noouan, had a contract with the Mayor, &c., to do work upon the Boulevard, for which work he was to receive the aggregate sum of $65,523.20. Payments by the terms of this contract were to be made at different times by installments. The fourth and fifth payments had become due and payable by August 26, 1879, before the commencement of this action.

The complaint was as follows : “ 1. That the plaintiffs are, and that at all the times mentioned herein, they were, partners doing… Held: managed and disposed of by me for the uses and benefits of the parties hereinafter named, and upon the trusts hereinafter specified, to wit: “ First. To pay the expenses of the business. “ Second. To pay to Barney, Butler & Parsons the following sums of money: [As it is conceded this amount was paid, it need not be recited.] “Third.

<p>Master and servant—liability of railroad company for wrongful act of servant.—Judge's charge as to credibility.—Evidence— police and hospital records of accidents.</p> <p>Whether the wrongful act of the servant of a railroad company not inconsistent with the nature of his employment, was done in pursuance of his employment and in the interest of his employers, or wickedly and maliciously out of his own spite, is always a question for the jury; and when the jury find such act to have been done in pursuance of the servant’s employment and to serve the interests of the employer, the employer is liable.</p> <p>The above principles applied to a state of facts, showing that plaintiff, a lad eight years of age, being a trespasser on one of the dofeudants’ trains, then moving at the rate of ten miles an hour, was kicked therefrom by one of the defendants’ servants, thereby suffering severe injuries: the court holding that there was no distinction in the authorities between the commission of such an act by the conductor and by other servants of the company.</p> <p>A chance expression of opinion as to the credibility of a material witness, made by the judge in his charge, and which he subsequently qualified by a statement to the effect that the jury are not bound thereby, does not necessarily furnish good ground for exception.</p> <p>Records kepi at the police station and hospital, showing injuries received by plaintiff from an accident, are not admissible in evidence against him in an action for such injuries, it not appearing that the entries therein were made by persons having knowledge of the facts or from statements of the plaintiff.</p>

Appeal by defendant from a judgment entered upon the report of a referee.

<p>Appeal by plaintiff from judgment dismissing complaint.</p>

<p>Motion by defendant for leave to appeal to the court of appeals.</p>

<p> Pleading—false representations, how alleged—failure to allege properly, 'when waived. </p>