Volume 15 — Abbott's New Cases

Trial by the court. Joseph F. Loubat brought this action against Herman R. Le Roy, Treasurer of the Union Club of the city of New York, to have a resolution of the governing committee of the club expelling the plaintiff from membership declared null and void. The material facts are stated in the opinion.

Motion by defendant to vacate an injunction order upon the execution of an undertaking as provided in section 629 of the Code of Civil Procedure, as amended by chapter 404 of the Laws of 1883.* Adeliza S. Thayer brought this action to restrain the Rochester City and Brighton Railroad Company, a horse railrod company, from laying its tracks in a public street. The further material facts appear in the opinion.

Motion by the defendant, on exceptions taken at the Monroe Circuit, ordered heard at the general term in the first instance, for a new trial after a verdict for the plaintiff. Susanna Schomer brought this action against the City of Rochester, for personal injuries received while passing over a bridge in Smith street over the Erie canal.

In an action brought by the People to wind up the Globe Mutual Life Insurance Company as an insolvent corporation, William McDermott was appointed referee to try the validity of any claim against the company, and to take proof generally of all its claims and obligations, and was directed to report his proceedings to the court with the testimony taken by him and his opinion thereon.

Thomas F. Hayes, as the substituted general assignee of Duncan A. Grant, for the benefit of his creditors, brought this action against Alexander V. Davidson, sheriff of the city and county of New York, to recover damages for the conversion of personal property, forming part of the assigned estate.

This was an action by William I. Chase and wife against Nelson Chase and others, for partition of lands.

Frank Seifert brought this action against the city of Brooklyn for injuries to his premises by reason of the overflow of a sewer thereupon. The complaint, after alleging defendant’s incorporation, and plaintiff’s ownership of the premises, proceeded : “ III.

Action for an accounting in respect of the estate of one William Dougherty. The plaintiff is the executor of Mary J. Dougherty one of the trustees. The other trustee Oscar Spence died insolvent and has never accounted. Five thousand dollars in Government bonds of the estate and other property had disappeared.

Trial by the court. The action was brought by James W. Manier as surviving executor of the will of Robert S. Phelps, deceased, against William Gh Phelps and others, heirs at law and next of kin of the deceased, and the residuary legatees, for the construction of said will. The material facts fully appear in the opinion.

Trial by the court. This action was brought by Edward Hughes against Joseph H. Jones and others, Joseph H. Jones being the son of Richard Hughes who was also known by the name of David Jones. The circumstances are fully stated in the opinion. The complaint alleged that Richard Hughes, otherwise known as David Jones, on or about October 7, 1870, owned Buckhorn Island in the Niagara river, and had done so for a long time previous.

The New York Cab Company (Limited), a corporation organized under the laws of New York brought this action to restrain Daniel Mooney from using plaintiff’s trade-mark upon his cab. The material facts appear in the opinion.

<p>A court of sessions has the power to suspend sentence after conviction and may at any time afterwards impose the sentence prescribed by law.</p> <p>But if the rights or status of the prisoner are changed after the suspension of the sentence,—as if the prisoner is under sixteen years of age and may be sentenced to the house of refuge, which does not disfranchise him,—after passing that age, he cannot be sentenced under the conviction had before attaining that age.</p>

Hearing before a referee. The action was brought by Issac Noyes, Jr., and Stuart Earley, on their own behalf and of other creditors who might come in, &c., against Jerry A. Wernberg, as general assignee .of the firm of Charles A. Wilson & Bro., and others, to compel an accounting and distribution by the assignee.

Daniel Herbert, and another brought this action against J. Warren S. Dey, for work done and materials furnished by them for him. The defendant pleaded a counter-claim for damages for the loss of the use of a dwelling house by reason of plaintiffs’ failure to construct a dry cellar,as,it was alleged, they had agreed to do by the contract under which the work and materials in suit were done and furnished.

<p>Application for leave to vacate and annul discharge in bankruptcy of Herzig and others.</p>

Demurrer to complaint. This action was brought against the Mayor, Aider-men and Commonalty of the city of New York to recover damages for an injury sustained by the plaintiff, in consequence of a defect in the bridge known as Williams bridge, which it was the joint duty of the city and of the county of Westchester to maintain. The contents of the complaint are more fully stated in the opinion.

<p>Application eor payment op debts.—Power op temporary administrator OR COLLECTOR.</p> <p>A temporary administrator, after the lapse of a year from the grant of his letters, may, on satisfying the surrogate that the assets exceed the debts, have leave to pay a demand presented against the estate, as an administrator could in his own discretion; subject to such objection as may be interposed upon his subsequent accounting.</p> <p>On an application for such leave, the court will not try the validity of the claim; although the leave may properly be refused in case of indication of mistake, exorbitance or fraud.</p> <p>The order granting leave may properly reserve to the contestant the right to dispute the claim on an accounting.</p>

<p>Executors’ and Administrators’ accounting ; statute - barred claims.—Limitation of claims against estate; acknowledgment by administrator.</p> <p>The claim of a judgment creditor against a decedent, of whose estate an executor or administrator has been appointed, is barred by the lapse of twenty-one years and six months from recovery of the judgment.</p> <p>An oral promise of the executor or administrator, made on receiving the claim, and before the lapse of that time, that he will include the claim in his final account, so that it can be paid if entitled to priority, does not take the case out of the statute.</p> <p>Nor does an allegation by him, in an answer to a petition of another creditor for payment, to which the judgment creditor in question was not a party, setting up such judgment as entitled to priority over the petitioners’ claim.</p> <p>Nor does the filing of a petition for settlement of account, and citation of the judgment creditor describing him merely as a “judgment creditor,” but without otherwise indicating the judgment or debt.</p> <p>Any person interested in an estate, as creditor or next of kin, is entitled to object that a claim presented is barred by the statute of limitations, even against the wishes of the executor or administrator accounting.*</p>

<p>Executors and administrators ; accounting and payment op debts.</p> <p>Costs of an action, against an executor or administrator for a debt of the decedent, may be allowed a preference, notwithstanding the ■ statute (3 R. S. 7th ed. 2298, § 28) declares, that the obtaining of a judgment shall not entitle a debt to preference.</p> <p>But the executor or administrator cannot be allowed for cpunsel fees in such action, although successful in reducing the claim, if the fees have not been paid; especially where the situation of the estate is such, that allowing them would necessarily deduct them from the dividend to one creditor.</p>

The material fgcts appear fully in the opinions of the general and special term.§ From the interlocutory judgment directing an accounting, defendants appealed.

Isaac W. Bennett brought this action against the Agricultural Insurance Company of Watertown, New York, upon a fire insurance policy issued by it upon a dwelling owned by the plaintiff. The facts appear fully in the opinion.

This was an appeal from a judgment of the special term of the supreme court (which followed the decision in Smith v. Tim, 14 Abb. N. C. 447), declaring the assignment from one Clinton H. Smith to John Gr. Smith void, by reason of an alleged defect in a notarial certificate of acknowledgment. The action was brought in behalf of judgment creditors to reach equitable assets.

Trial by the court. George B. Jaques and another, as partners, brought this action against The National Exhibit Company, to restrain the continuance of an alleged nuisance. The plaintiffs were jewelers doing business on Broadway in the city of New York. They occupied the store on the ground floor of the building ; the store has its front twenty-five feet wide on Broadway, with two show-windows and a doorway for customers.

I. May, 1882. Appeal by the defendants from a judgment for the plaintiff entered upon the verdict of a jury. This action was brought by Albert C. Clark against Sidney Dillon and others, for the loss of the services of plaintiff’s wife, who was injured by falling into an excavation made by defendants in a city street.

Motion to overrule demurrer to complaint, and for judgment. The nature of the action and the material facts appear in the opinion.

Trial by the court. Peter Townsend sued Cassius H. Read and Gustave E. Sussdorff for rent accruing under a lease and for the payment of which defendants became sureties. The facts appear in the opinion.

Issue of law joined by service of demurrer to two counter-claims contained in the semrate answer of the defendant Myers. William K. Vanderbilt sued William B. Baldwin and Sinclair Myers, to recover back $2,000 paid on account of the purchase price of land upon the execution of a contract for its purchase by the plaintiff of the defendants, and for damages for the refusal of defendants to fulfill the contract and convey the land.

Trial by the court. The plaintiff, Peter Cooper’s Glue Factory, brought this action in the nature of a bill of interpleader, against Martin T. McMahon, receiver of taxes in the city of New York,'James Tanner, collector of taxes in the city of Brooklyn, and David F. Johnson, register of permits in the city of Brooklyn, to compel the defendants to interplead as to their respective rights to collect taxes upon the personal property of the plaintiff, and to obtain a decree…

Appeal by the defendant from an order of the general term of the supreme court, fourth department, reversing a judgment in his favor, entered upon the verdict of the jury upon trial at the special term, and granting a new trial.

Lyman Mallary sued Frank B. Allen for goods sold and delivered to the defendant by plaintiff’s assignor., An attachment was granted on an affidavit by plaintiff’s agent which was vacated on motion, upon the ground that the affidavit did not comply with section 636 of the Code of Civil Procedure requiring, in such an action that the affidavit show that “the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him.” From the order…

<p>Jurisdiction ; equitable ; action to establish lost stipulation for discontinuance of action in another court.</p> <p>The supreme court has jurisdiction to entertain an action 'to establish the existence of a lost stipulation providing for the discontinuance of an action in the marine court of the city of New York, particularly where the stipulation was made in another action in the supreme court.</p> <p>It is error to dismiss the complaint upon the ground that the plaintiff has an adequate remedy at law by motion in the marine court, as these remedies are concurrent.</p>

Appeal' from an order denying a motion to vacate an attachment. The action was brought by Edward Friend and another, to recover a firm debt of the defendants, Samuel Michaelis and another. The material facts appear in the opinion.

John D. W. Joy and another, partners, sued Nathan J. Schloss and another, partners, for damages for breach of defendants’ contract to buy goods of the plaintiffs. The material facts appear in the opinion.

Trial by the court. Henry O. Wait brought this action against Evaline Jameson, to recover possession of lands situated in the village of Salamanca, and forming a part of the Indian reservation in the county of Cattaraugus. The material facts appear in the opinion.

Alvin D. Puffer sued Walter F. Reeve, to recover possession of a soda-water apparatus delivered to one Bell by plaintiff under an instrument called a lease.

<p>Bills, Notes, etc. ; action on note.—Husband and Wipe CANNOT BE PARTNERS.</p> <p>At common law, the unity of husband and wife precluded the existence of a copartnership between them, and this disability has not been removed by the enabling acts of 1848, 1849, I860, and 18U8. A married woman cannot, therefore, be held liable upon a note signed by her husband in the name of a firm composed of her husband and herself.</p> <p>Fairlee v. Bloomingdalo, 14 Alb. N. C. 341, followed, and Graft «. Kinney (ante, p. 397), opposed.</p>

Trial by the court without a jury. The complaint in this action, brought by Jacob I. Housman against Winant W. Weir, alleged a former partnership between the parties in the business of planting oysters, and that during the partnership, and with the joint funds and labor of the parties, there was staked oat and appropriated for their business purposes certain land under the public waters of this State, in Prince’s Bay, in Bichmond county, which had not been before staked out…

<p>Action fob Non-betubn of Execution.—Shebiff ; liability FOB BEFUSAL TO EXECUTE VOID PBOCESS.Execution; against whom issued.</p> <p>An action was brought by a relator to recover a penalty for the violation of the excise law, and was entitled in the names of three persons “ as the Board of Commissioners of Charities of the County of Kings;” and, on plaintiff’s failure to appear, judgment for the defendant was entered and docketed against such persons, “ as the Board,” &c. In an action against the sheriff for non-return of an execution issued against such persons individually,—Held, that the docket and judgment did not authorize such an execution, which was therefore void, and though regular on its face, defendant was justified in refusing to execute it.</p>

Trial by the court upon agreed facts. The action was brought by Edwin J. Bieder, by his guardian, against George Steinhauer and Nelson Moore, executor of the last will, &c. of Linus Moore, as sureties upon a bond given by one John Bieder for the faithful performance of his duties as guardian of the plaintiff, an infant.

<p>Action on Judgment.—Leave to Sue.—Execution.—Pleading ; . DEMURBEB.</p> <p>An executor may maintain an action upon a judgment in favor of his testator against the judgment debtor without leave of court, notwithstanding he also has, under Oode Oiv. Pro. § 1376, the right to have execution on the judgment. The latter remedy is merely cumulative.</p> <p>It seems, that the objection that leave to sue has not been obtained may be raised on demurrer to the complaint for insufficiency.</p>

Trial by the court. Porter G-. Dennison, brought this action against William P. Taylor, for moneys received by defendant as an award for land taken for railroad purposes. The facts appear fully in the opinion.

<p>Habeas corpus; legality op judgment op justice not reviewable.—Service; indorsement op statute on copy summons served.</p> <p>Under Code Civ. Pro. §§ 2032, 2034, relief from imprisonment on an execution issued by a justice of the peace on a judgment in an action for violation of the excise law, cannot be liad by habeas corpus, upon the ground of want of jurisdiction of the justice to render the judgment, because he had no proof of delivery to defendant of a copy summons, indorsed with a reference to the statute under which the action was brought as required by section 1897, or because he lost jurisdiction by an improper adjournment, or because the costs imposed were excessive, if upon proper facts the justice would have had power to render the, judgment he did.</p> <p>The test of the prisoner’s right to relief by habeas corpus is not that the court or magistrate should have had jurisdiction of the subject-matter, for which the judgment was rendered, and of the person of the party against whom it was rendered, but that the tribunal should be “competent” by reason of its “civil or criminal jurisdiction ” to render the judgment by virtue of which the imprisonment is inflicted.</p> <p>Under Code Civ. Pro. § 1897,—requiring the copy summons delivered to defendant to be indorsed with "a general reference to the statute under which the action is brought,—it seems, that proof of the service of the summons only does not show that the copy delivered contained the indorsement required to be upon such copy, and not required to be upon the original process.</p>

Motion to confirm report of referee, allowing claims against a lunatic’s estate. The claim was made by William 0. Walker and Abbey J. Palmer, against the estate of Harvey I. Walker, a lunatic. The nature of the claim and the material facts appear in the opinion.

Trial by the court without a jury. Albert Zoller brought- this action against Michael O’Keeffe, Martin E. Doyle, and Robert H. Leslie, to recover a debt of the New York Brewing Company, a corporation of which the defendants were trustees.