Volume 15 — Abbott's New York Practice Reports

Appeal by plaintiffs from so much of an order of special term as denied an injunction pendente lite restraining defendants from employing the words “ Worcestershire Sauce” as a trademark. This action was brought by John W. Lea and others, against Julius Wolf and another, to enjoin them from selling a sauce made by them as “Worcestershire Sanee,” the plaintiffs claiming that those words were their trademark, which they had an exclusive right to use.

This cause, being an action for the foreclosure of a mortgage, was first tried before Justice Hoffman, and is reported in 13 Ante,'61; and afterwards the judgment rendered at that trial was reversed at general term (S. 0., 14 Ante, 241), on the ground of error in the obtaining of the same. Having been retried, it came before the general term a second time, on appeal from the judgment rendered at such second trial. The facts are stated in the opinion.

Motion to dismiss complaint, with costs, for plaintiff’s omission to bring the action to trial. This action was brought by Anson Gr. Champion against Albert Webster and others,, to foreclose a mortgage. The facts are stated in the opinion.

This was an action of trespass, and was tried in a justice’s court in Ulster county, on September 6, 1859, when the following facts were proved: The defendant, as a constable, by virtue of an execution against the property of the plaintiff, in or about the month of July, 1859, levied upon a quantity of oats, and a tow-line, belonging to the plaintiff, who was a householder, having a family for which he provided. ' The plaintiff had only such property as is exempt from levy…

<p>This was an application by relatives of Catherine M. Rickard, a minor under fourteen, for the removal of a guardian appointed by the county judge of Schoharie county, and for the appointment of another guardian, and for an accounting of the present guardian, and for any other or further relief which the court may direct.</p> <p>The petition was made by the uncles and aunts of the minor, who were fifteen in number, and were the nearest of kin.</p> <p>The residence of the minor and of thirteen of the petitioners was Schoharie county, all of whom resided in said county at the time of the appointment of. the guardian by the then county judge.</p> <p>William Rickard, the father of the minor, died in February, 1871.</p> <p>By his will, the title of his real property, valued at about fourteen thousand dollars, vested in the minor, provided, however, that if she “ die and leave no children or issue, then, and in that case,” the said lands were devised to two nephews.</p> <p>On February 18, 1871, Mr. Becker was appointed general guardian of the minor, by the then county judge of Schoharie county.</p> <p>On March 13, following, letters testamentary were issued to Mr. Becker, as the sole executor of the will of said William Rickard. Up to February 13, 1873, no inventory or account had been filed by Mr. Becker, as guardian. As executor, he filed an inventory, September 30, 1872, more than eighteen months after letters were issued to him.</p> <p>The grounds of the application for removal appear in the opinion.</p>

Smith Williams sued Benjamin A. Willis for money received; and the defendant’s answer interposed, as a counter-claim, a demand for a sum for services rendered. The reply was a mere denial of the answer. On the trial evidence was offered by defendant of the services alleged, which it appeared were rendered more than six years before the action was brought.

Petition to open a final accounting of the executor of the estate of Joseph W. Brick, and for a further account. The facts, so far as material to the questions determined, are stated in the opinion.

The plaintiff, James C. Voorhees, as assignee of one Crawford, sued defendants to recover a part of the proceeds of a note which had been lodged with defendants as collateral to a loan, and had been collected by them under the following circumstances : The note was made by one Smith for three thousand seven hundred and fifty dollars, payable to the order of Devereux, Rich & Co., who held it, and lodged it with the defendants as collateral to a loan, which they afterward…

This action was brought to recover damages for the breach of an alleged promise of marriage. The complaint set forth the contract, and charged the defendant with the breach of it. The answer, claiming that the undertaking of the defendant was conditional, admitted the refusal to marry, and set up special matter in justification. After the issue thus joined had been noticed for trial and the case put on the calendar, thé defendant died.

<p>Appearance.—Extension.—Stay.</p> <p>The court ought not to grant an extension of time to appear, nor should it grant a stay of proceedings on the application of a defendant who has not appeared in the action.</p>

The plaintiff in this action, Adam D. Wheelock, as assignee in bankruptcy was the personal representative of- bankrupt firm, C. M. Tremaine & Bro.

The action was brought by the plaintiff to recover the sum of one hundred thousand dollars damages for breaches upon the part of the city, of what is commonly called the “Hackley Contract,” an interest in which had been assigned to him.

Mr. Wm. G-. Shanks, city editor of the Tt'ibune, was committed to the county jail by the oyer and terminer of Kings, for contempt in refusing to answer questions put to him before the grand jury as to the authorship of an article in the Tribune.

Demurrer to supplemental complaint. This action was originally brought by Maynard E. Carrere, the plaintiff, against Paul Spofford, the survivor of the late firm of Spofford & Tileston, to secure an accounting from the defendant, as such surviving partner, of moneys which the firm had received as agents of certain steamships in which plaintiff was a part' owner, and to which he claimed to be entitled.

Appeal by defendants from order overruling demurrer to complaint; also, appeal from, order refusing to dissolve preliminary injunction. This action was brought by George F. Von Beck against the trustees of the village of Rondout, and William Golden, an officer of the village, to enjoin the collection of an assessment which plaintiff contended was illegal. The facts sufficiently appear in the opinion of the court.

Motion to strike out answer as sham. This action was brought by William Watson and another to recover the sum of $2,800, the amount due on a promissory note, dated October 30, 1860, and executed by the defendants, Thomas L. Rushmore, John A. Cone, Pendleton G. De Graw, William A. Harding, James A. Timpson, William Johnson, George Corbin, and Lyell T. Olmstead, who at said time composed the firm of Rushmore, Cone & Co. It appeared by the affidavit of Mr. Sweet, one of the…

The Broadway and East Side Stage Company brought an action against the American Society for the Prevention of Cruelty to Animals, and Charles Johnson and others, John Marshall and others, and S. W. Andrews and others respectively, brought similar aqtions,—to enjoin interference with their lines of stages in the city of New York. I. Motion for an injunction.

<p>Prohibition to the General Sessions.</p>

This action was brought by William L. Hartshorn against Charles Newman and C. Belden Hall. The summons stated, that on failure to answer, &c., the plaintiff would take judgment for $400, with interest from Hay 26th, 1862.

<p>Estoppel to dent Inooepobation.—Detective Organization > cubed by Subsequent Statute.—Mutual Insurance Company ■organized in Departments.—Receiver’s Assessment.</p> <p>Persons who make contracts with a corporation de facto, cannot deny its legal existence.</p> <p>Any errors or informalities in the mode of the formation of a corporation, under a general act for the organization of corporations, are cured by a special act recognizing the existence of the corporation, and changing its name.</p> <p>A mutual insurance company, organized under the General Insurance Companies Act of April 10, 1849, may divide its risks into classes, according to the degree of hazard, and assess the premium notes only for the payment of the losses happening in the class to which such notes belong.*</p> <p>All the notes of a mutual insurance company constitute its capital stock ; and, although the notes of one department must be first assessed to pay the losses of that department, yet, if they are found not sufficient, and any thing remains in the other department beyond paying the claims upon it in that branch, resort must be had to those remaining assets until the whole are exhausted. If tho necessity exists, resort must be had to the entire fund of the company.</p>

This action was brought by the Slater Bank against James H. Sturdy, Jonathan P. Bryant, Solomon Frederick, and sixteen others. It was in the nature .of a creditor’s action, founded upon a judgment against four of the defendants for $1427.94. It set forth that such judgment-debtors being insolvent, had given three mortgages—one to defendants, Bryant, Richmond & Draper, one to defendant Albert. W. Carpenter, and the other to the remaining defendants.

Anne R. Hann brought this -action against Barker Van Voorhis, and Elias W., and Maria D. Van Voorhis, alleging that she had recovered judgment, and had issued execution which was unsatisfied, against the defendant Barker ; and that the defendants Elias W. and Maria D. were executors under the will of Elias W. Van Voorhis, deceased, and were trustees for the benefit of the defendant Barker, under a trust to receive the rents and profits of the estate, and pay a part of the…

Motion to compel purchaser to complete purchase. This motion was made after judgment and sale in an action to foreclose a mortgage, brought by William K. Thorn against Lawrence Sheil and Lucy, his wife, to compel John Hanken and another, who had bid in the property at the foreclosure sale, to complete their purchase. The fee of the premises in question, subject to the mortgage forclosed, became vested in Michael McCaffry, in May, 1864.

<p>I. September, 1873.</p> <p>N. Hill Fowler applied to the court for a reargument of the appeal in this case, the decision of which was reported 14 Ante, 349. His application was based on the allegation that the decision in the court below and in this court was based on a misapprehension or mistake of facts in the following respects:</p> <p>1. That it appeared by the papers that Fowler had no interest in the judgment he collected, but acted solely as attorney for Bamberger; and that he paid over the net proceeds to Bamberger.</p> <p>2. That upon the face of the papers it appeared that Fowler was justified in believing Rice’s claim fraudulent. That Wilmerdings’ deposition was not ex-parie, but the judgment debtor had notice of the proceeding. And that Fowler was acting adversely to Wilmerdings & Mount, and he owed no professional duty to them.</p> <p>And that the decision against the applicant was made on the erroneous assumption to the contrary, on these points.</p> <p>In opposition to the motion, it was suggested that the application was too late, as the remittitur had been sent from this court to the court below.</p>

The infant, Caroline F. Mcllvaine, of the age of nineteen years and nine months, presented her petition to the court, verified by her own affidavit, and that of John L. Mcllvaine, her next friend, asking that her general guardian, Joseph W. Savage, he directed to sell a portion of the infant’s real estate, sufficient to raise the sum of four thousand dollars, and to apply two thousand dollars for the purchase of furniture, to enable the infant to commence housekeeping, and…

<p>This action was brought by Francis J. Geis against Frederick W. Loew.</p>

<p>Judicial Sale.—Duties of Referee.</p> <p>Under the usual judgment for sale in foreclosure,—directing the referee or other officer making sale, after paying his own fees and expenses of sale, and all liens for taxes, assessments and prior mortgages, to pay from the residue, the costs and the mortgage debt,—if the referee pays the sums awarded out of the residue, before paying off the liens, he does so at his peril.</p> <p>It is the referee’s duty to pay off liens as directed by the judgment; and he cannot relieve himself of this duty by stipulations in the terms of sale.</p> <p>Although the terms of sale permit the purchaser to pay off the liens, , and retain the sum out of the purchase money, he is not bound to do so, but may pay the whole price and require the referee to execute the judgment.*</p> <p>If the purchaser claims that he has paid off admitted prior liens, and tenders the balance of the purchase money, an objection to the sufficiency of the proof of the payment must be made by the referee, if at all, at the time of the tender.</p> <p>If the referee refuses to pay off or allow such prior liens, the court may compel him to do so.</p> <p>It is no defense to proceedings to punish for contempt in disobeying an order, that an appeal is pending † (there being no stay); nor is the fact of the party’s inability an excuse, where it was caused by his own disobedience.</p> <p>On appeal from an order punishing for contempt, the appellate court cannot consider new affidavits alleging that the party has meanwhile complied with the order of the court below.</p>

This action was brought by Matthias Bloodgood against George Benjamin Mickle and others. Rachel Miller was seized in fee of an undivided half of certain premises situated in Dey-street, in the city of New York, together with other premises as tenant in common with one Andrew Mickle.

This action was brought by Nathaniel and Henrietta Chauncey against William B. Lawrence and William B. Lawrence, jr., for the foreclosure of a mortgagefor $14,000 upon forty-nine lots in the city of New York.

<p>Stay of Proceedings.—Remittitur.—Fixing.—Reargument.</p> <p>Rule, 16 of this court,—which provides that either of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings,—does not prevent a judge from staying the filing of a remittitur without service of papers and notice of motion.</p> <p>A single judge of the court may order the filing of a remittitur to be stayed, in whosesoever hands it may be, at any time before it is actually and regularly filed in the court below.*</p> <p>The mere coming of the remittitur to the hands of the clerk of the court below, is not an actual filing. Bo held, where, on being served with the stay, he handed the remittitur back to the attorney, without having marked it filed, and expressly refused to file it.†</p>

This action was brought by Daniel H. Lawrence, James M. Griggs, and John A. Kingsbury, against H. Ross Jones, to recover $209.,22. On the 14th day of June, 1862, plaintiffs sent the summons and complaint to the sheriff of Steuben county for service, but the sheriff was not able to serve them. On the 2d day of July, 1862,' plaintiffs obtained a warrant of attachment against defendant, as a non-resident, and also, an order for the service of the summons by publication.

This was an action brought by Elizabeth Daguerre, executrix, &c., against John Orser, late a sheriff of the city and county of New York, to recover from him damages for the escape of Benjamin Blagge, against whom the plaintiff had obtained an order of arrest, and who escaped from the custody of the sheriff under that order. It was shown at the trial that Blagge was insolvent, and so continued till the time of his death.

Motion to continue injunction. This action was brought by John J. Trenor against James S. Jackson. The plaintiff is the lessee, for a term of ten years from May, 1870, of the premises on the southeast corner of Sixth-av. and Forty-eighth-st., in the city of Hew York,-and known as Hos. 842, 844,-846 and 848 Sixth-avenue.

The relators were the lowest bidders for constructing the gate-houses of the new Croton reservoir. The Croton Aqueduct Board awarded the contract therefor to them, subject to confirmation by the Common Council. The Common Council refused to confirm the award, but gave the contract to other bidders. Baldwin & Jaycox then instituted a suit, and a proceeding by mandamus, to obtain the contract, but were unsuccessful, the court holding that they had no claim against the city.

This action was commenced to recover of the defendant, as executor of Eliza Lewis, and also as executor of Daniel W. Gautier, and also in his individual capacity, damages, by reason of alleged breaches in the covenants set forth in certain leases mentioned in the complaint. The complaint is fully set forth in our report of the decision at special term (13 Abbotts’ Pr., 195), from which decision the defendants now appealed.

<p>Application for an order of arrest.</p> <p>The nature of the application sufficiently appears from the opinion.</p>

Writ of error to New York General Sessions. John Fellinger, the plaintiff in error, was convicted of burglary in the first degree, by the New York General Sessions, October 9,1887, and sentenced to imprisonment, in the- state-prison, for life. In October, 1862,' the prisoner obtained a-writ of error. The court below returned the record.

<p>Applicatión for a permanent injunction.</p>

In this action, which was brought by Seth H. Klinck against John Kelly, sheriff, &c., the clerk, on adjusting defendant’s costs, after a verdict in his favor, allowed to him, as “double costs,” one-half the whole taxed bill of costs and disbursements. There having been a new trial ordered in the action, the clerk allowed to defendant five circuit term fees, after the order for a new trial, in addition to five like term fees before the first trial.

I.—July, 1862. Motion for readjustment of costs. This action was brought by John Hanna against John D. Dexter. At the January circuit the plaintiff applied for a day’s adjournment on account of his attorney’s absence ; the defendant objected unless the cause should be-put over the term. The cause was then ordered off for the term on payment of the costs of the day. ■ The case was on the day-calendar in'February when it was put over the term on defendant’s motion.

<p>Austin Gr. Day sued Harriet A. Stone individually ;and as administratrix.</p> <p>The complaint alleged, that plaintiff had been engaged in the business of manufacturing and selling certain goods; that he employed Israel Stone, as his agent, at a monthly salary, and on going abroad he gave Stone a power of attorney, to sign and indorse checks for him. That Stone continued in his employ as such agent for about two years, when he died; and that while so employed Stone had no other income and no other property but his salary, except a little furniture. That as plaintiff’s agent he had received about ninety thousand dollars which he had never accounted for; and (on information and belief) there were in his hands at his death about thirty-five thousand dollars of plaintiff’s money. That he had on deposit in bank in his own name over twelve thousand dollars of plaintiff’s money, on which neither he nor his estate had any claim. That in addition thereto he had as such agent certain stock of a corporation (fully described) standing in his name, but belonging to plaintiff. That the surrogate issued letters to defendant as the administratrix of Stone, and that she thereby had drawn the moneys out of bank and had obtained possession of the certificate of stock and all the papers and books of the business, and had removed them to some place unknown, and had refused on demand to return them. That she is irresponsible ; and drew the moneys from the bank knowing that she had no right to them.</p> <p>That before bringing this action, plaintiff had demanded of her as administratrix the moneys, books, &c., and duly offered to refer the claim, but she refused to comply. That many of the aforesaid acts she claimed to do in her individual capacity. That the surrogate had not ample jurisdiction to settle the controversy, and plaintiff had no adequate remedy at law.</p> <p>Wherefore he asked judgment, 1. For an injunction. 2. For payment of the bank deposit. 3. For repayment- of advances made by plaintiff, to be ascertained by an acounting. 4. For a delivery and transfer of the stock. 5. For a surrender of the plaintiff’s books and papers. 6. For an accounting and payment of moneys due from the intestate to plaintiff; and, '7. For general relief.</p> <p>Defendant demurred for misjoinder of a cause of ■action against her individually, and a cause of action against her as administratrix.</p>

The plaintiffs John Georg Billhofer and Georg Arnold, were partners in trade in Bavaria, Germany. The defendants Victor Heubach, Augustus Johnson, and Alfred Heubach, were partners in trade, composing the firm of Victor Heubach & Co., in the city of Hew York.

<p>Taking Inquest.</p> <p>Under an order of the court extending the defendant’s time to answer, on condition that he signed a stipulation to take short notice of trial, and that the date of issue should be of the date when the answer was originally due, a stipulation to that effect was made, and defendant accepted notice of trial, and the cause was placed on the calendar before the answer was served. After the commencement of the term the answer was served, but no affidavit of merits was filed, and plaintiff took an inquest and entered judgment. Held, that the judgment was regularly entered.</p>

Jacob Chatterton, the plaintiff in error, was indicted jointly with Charles F. Fisher, for receiving stolen goods. The form of the indictment, so far as any question arose upon it, and the prisoner’s request to charge, appear in the opinion.

<p>Eminent Domain.— Discontinuance oe Proceedings to Acquire Lands.—Vested Right.</p> <p>In proceedings to acquire lands for public use under a statute allowing this to be done in invitum on making compensation,—an adjudication of the necessity or propriety of taking certain lands determines the right of the respective parties (subject to the further proceedings to fix the compensation), and after such adjudication the applicants cannot discontinue, nor should the court permit them to discontinue without the consent of the land owners.</p>

<p>Offer to allow Judgment.—Collusion.—Removal of Receiver.</p> <p>A judgment entered upon an offer to allow judgment under Code, § 385, for the ' full sum demanded in the summons and complaint, is valid.</p> <p>Confession of judgment without action, under §§ 382, 383, of the Code, is analogous to the confession by bond and warrant of attorney under the former sys- ' tern of practice ; the proceeding under § 385 is analogous to the former mode of judgment upon cognovit.</p> <p>The court has power to set aside a judgment entered upon an offer under § 385 of the Code, and will exercise such power when the proceeding was taken collusiveiy, to evade the provisions of the Code relating to confession of judgment. The employment of the judgment-debtor by his receiver to collect a portion of the assigned demands, is not alone sufficient to authorize his removal from his trust.</p>

Writ of error to the Hew York General Sessions. The plaintiff in error, John B. Holmes, was convicted of forgery in the first degree in the Hew York General Sessions of the Peace in Hovember, 1857, and sentenced to imprisonment in the state-prison for fifteen years and six months. The prisoner sued out a writ of error in January, 1861.

Appeal by the defendant from a judgment entered on the verdict of a jury. This was an action of ejectment to recover lands lying in the city of. New York,, which the defendant claimed to hold by virtue of a sheriff’s sale upon an execution against one Price, under whom the plaintiff claimed.

Motion to require the prevailing party to enter judgment. This action was brought by John Purdy, survivor, &c., against John R. Peters, Jr., and others, executors. The cause was tried before Mr. Justice Gierke, in May, 1859; judgment was rendered in favor of plaintiff for $5,255.86, damages and costs; the defendants appealed to the general term, where the judgment was affirmed.

Writ of error to New York General Sessions. John J. Hayes, the plaintiff in error, was convicted of bigamy at the General Sessions of New York, September 18, 1861, for having married one Jane White, while his former wife, Sarah E. Blair, was living. A ceremonial marriage between Hayes and Sarah E. Blair was proved and admitted.

Aaron Erickson and another brought this action, in the nature of a creditor’s bill, against Mary A. Quinn and others, to reach certain real property alleged to have been conveyed to the defendant, Mary, with intent to defraud the creditors of one O’Maley. The Union Bank, afterwards the National Union Bank of Rochester, recovered judgment in 1861 against O’Maley, and execution was issued, and returned unsatisfied in part.

Common-law Certiorari. This was a certiorari obtained on the relation of Patrick E. Dillon, and directed to the Board of Metropolitan Police of the Metropolitan Police District of the State of Hew York, composed of John Gr. Bergen, Thomas P. Acton, and James Bowen, Commissioners of Police. The certiorari was issued in October, 1861, and brought up proceedings had in August, 1860, removing the relator from the police force.

The plaintiff in this action married his first wife in England in 1839; soon separated from her and married a second wife in this country in 1843 ; obtained a divorce from the second wife in 1864, in an action which she did not defend ; and in 1865 married a third wife, both the first and second being living.

The plaintiff and defendant made an agreement, under seal, dated May 1,1850, in substance, that the defendant might temporarily put sand upon his four lots on the corner of Madison Avenue and Twenty-fifth-street; tobe removed on ten days’ notice. The fence was to be kept in good order, and the flagging on Twenty-fifth-street, opposite the entrance to be made, was to be replaced when possession was given up.

Sidney D. Roberts sued Robert H. Berdell in the supreme court, to recover damages for the alleged conversion by defendant of four mortgage bonds of the Long Dock Company, which belonged to one Seymour, and were pledged by him with defendant as security for a loan, and which defendant after repayment of the loan refused to return to Seymour.

Although an order directing the names of certain parties plaintiff to be stricken out, might be deemed a mere question of practice within the discretion of the court, and not re viewable on appeal in the Court of Appeals, yet where such an order further requires the remaining plaintiff to join such parties as defendants, and prescribes what allegations he should assert in his amended complaint, it presents questions which may be reviewed by an appeal to the Court of Appeals.

Appeals from three judgments of a district court in the city of New York. These actions were brought by Frederick F. Betts against Sherlock Hillman and one Mathews, to recover the sums of $100, $150, and $200 respectively, for money lost at three sittings, by a game commonly called faro. The defendant Matthews was not served; the defendant Hillman answered in each of the actions, denying the allegations of the complaint.

<p>David Richards sued Orange Judd and others for libel, and the cause now came before the court on appeal from ah order of the special term, striking out the complaint, and dismissing the same with costs, for plaintiff’s refusal to answer certain questions propounded to him as a witness, pursuant to the order of the court.</p> <p>The plaintiff alleged in his complaint, in substance, that he is and has for many years been the sole pro- • prietor, owner and manufacturer of articles of medicine and merchandise, generally and publicly known as Dr. Richau’s Golden Remedies; which he has for ten years last past manufactured and put up, and offered for sale and sold ; and that, by means of extensive advertising and the good qualities of such Golden Remedies, he has secured large sales and profits.</p> <p>He also alleged, that the defendants are publishers of a monthly magazine, known as the American Agriculturist., and having a circulation monthly of two hundred and fifty thousand' copies ; that in November, 1872, the defendants published in their said magazine a certain libelous article, in the following words: “ Sundbx Humbugs.—Our newer readers keep inquiring about the trustworthiness of this, that and the other doctor for varioxis diseases. We answer, that every so-called physician, every medical institute, or college or association that advertises medicine or medical advice, by circular or otherwise, is a quack ; in short, a swindle. The whole tribe of those who advertise ‘ marriage guides,’ ‘ female medicines,’ ‘ advice to the young,’ ‘errors of youth,’ ‘eye doctors,’ ‘ear doctors,’ ‘consumption curers,’ ‘ cancer doctors or medicines,’ &c., &c., are positively quacks and impostors, to whom it is unsafe to address even a letter of inquiry; also, the ‘ Golden Remedies,’ inquired about by several, are nonsensical quackery. We have not room for a lot more of humbugs on hand, but will renew the war upon them in the next volume ; and, as hitherto, we expect to shield at least all our readers from swindlers, and, through them, many other people.”</p> <p>The plaintiff alleged also, that the defendants, by means of these words, published as hereinbefore set forth, insinuated, and meant to be understood by those to whom it was published, and to the public at large, as charging the plaintiff with being a quack, impostor and swindler, and that the said “ Golden Remedies,” manufactured solely by the plaintiff, were wholly valueless and useless, and possessing no medical qualities whatever, and that by means of the publication the plaintiff has been injured in his reputation and in his business, and been deprived of custom and trade, and lost the sale of goods and profits, which he would -otherwise have made, to his damage twenty-five thousand dollars.</p> <p>The defendants in their answer admit, in substance, that they are publishers of the American Agriculturist, and that, in December, 1872, they published the article under the caption of “ Sundry Humbugs,” above set forth. They allege also, that the publication is substantially true, and was published with good motives and for j ustifiable ends. They also set out, in extenso, the circulars sent forth by the defendant with his “Golden Remedies,” in which the plaintiff describes himself as a physician who has had a general practice in all parts of the world ; and they aver various facts tending to show that the alleged medicines -of plaintiff are valueless as remedies for disease, being ■compounds costing but a few cents per bottle, and selling at several dollars, which the public would shun if the constituent parts were known.</p> <p>The defendants propose in their answer to give evidence of all the various facts alleged, both in justification and in mitigation of damages.*</p> <p>Issue being joined, the defendants upon affidavit procured an order and summons for the examination -of plaintiff as a witness on their behalf, before the trial.</p> <p>On such examination, the plaintiff testified that a bottle marked “Dr. Richau’s Golden Remedies, Ho. 2,” was one of the medicines he advertises and vends to the public. He was then asked of what balsam Ho. 3 was composed ? He refused to answer the question, on the ground that it was irrelevant, immaterial, and a secret in his trade. The judge directed the plaintiff to answer the question. He then answered: “It is a secret compound, composed of various ingredients, which possess great medicinal properties;” and refused to state the names of the ingredients.</p> <p>He then gave evidence showing that he was not a •doctor of medicine, and had never received a diploma, and had not been engaged in a general practice of medicine in any part of the United States.</p> <p>He then testified that he advertised “ Doctor Rieham s Grolden Elixir de Amour, or Elixir of Love and being asked, “of what is it composed?” here-fused to answer.</p> <p>The court at special term, after argument, ruled that the plaintiff must answer the question which had been propounded; and on the question being repeated to him, he answered: “It is a secret compound of various ingredients which possess great medicinal properties ;” and refused absolutely to give any other answer.</p> <p>The court at special term, on presentation of these facts, held that the answer was evasive ; and the plaintiff, under the advice of his counsel, refusing to give any other answer, the court ordered his complaint to be stricken out and dismissed, with costs.</p> <p>Plaintiff appealed.</p>

This was an action by Margaret Moncrief against John Mohcrief for a limited divorce. The cause was tried in December, 1860, at special term, where decision was reserved. The court at length dismissed the complaint, but without costs, and judgment was entered in favor of the defendant without costs, in February, 1861. On appeal, the judgment was affirmed, also without costs.

This action'was brought by Elmer H. Garbutt, William H. Black, and Mortimer Hendricks, against Isidor Hanff and Adolph Aroni, to recover $217.83, the price of certain groceries' sold to defendants. The plaintiffs obtained a warrant of attachment, as a provisional remedy under the Code, on the ground that defendants were about to dispose of their property with intent to defraud creditors. The warrant was issued May 8 th, 1862.

<p>R. H. Dowling took proceedings in the New York common pleas to foreclose a mechanic’s' lien upon premises owned by the defendant, Charles P. Bucking. Pending the proceedings, the claimant assigned his claim to Messrs. Hills & Wakeman, as collateral security for his indebtedness to them. The assignment is stated in the opinion.</p> <p>The common pleas, on appeal from an order denying defendant’s motion to compel these assignees to pay the costs of the unsuccessful prosecution of the suit, held that, as it did not appear that the assignees had conducted or carried on the proceeding, or aided in so doing, they were not liable. Defendant appealed to this court.</p>

This action was brought by Joseph W. Goddard and Frederick E. Goddard, against Charles W. Crosby and John W. Benson, to recover $1,175.45, the value of certain raw silk which it was claimed defendants had converted to their own use. The answer was a general denial. The defendant Benson was allowed to put in a supplemental answer.

<p>Appeal from an order.</p> <p>This action was brought by Hamilton E. Towle against Hiram C. Covert.</p>

This was an action by Matthew E. Oarnahan against Loyal S. Pond and Samuel Gilman. After judgment in favor of the defendants, they applied for leave to issue execution against E. W. Tiers & Co., as assignees of the demand in suit. It appeared that the plaintiff assigned his demand to Messrs. Tiers & Go. after suit, but before issue, as collateral security for several demands which they had against him.

Ernest Heye sued Edwin R. Robertson and Samuel Winternitz to recover possession of personal property alleged to have been wrongfully detained from him by the defendants.

This action was brought by George Price against Henry Peters and J. A. Ingram, in one of the Hew York district courts, and judgment recovered by the plaintiff, upon two promissory motes made in September, 1860, for $142.64. Supplementary proceedings were instituted, under which Peters was partially examined: he declined to answer certain questions, whereupon plaintiff moved for an attachment, with the view of punishing him for a contempt.

Demurrer to complaint; and motion to vacate judgment. Henry S. Cambios, claiming by, several mesne assignments, sued' Frederick ¡Butterfield, Samuel J. Wheeler, Orlando W. Joslyn, and John Y. Bostwick, to recover a demand of- one hundred and sixty thousand dollars. He alleged that the defetidant Wheeler had borrowed this sum of the defendant Butterfield, and that Butterfield had assigned the right to recover it to Joslyn and.

<p>Motion, to dissolve an injunction.</p> <p>This action was brought by Jacob Sterman against John A. Kennedy, Morris De Camp, and Eussell Wells, to obtain an injunction. The plaintiff was a duly licensed auctioneer, carrying on his business at No. 153 Broadway, and had been doing a large and prosperous business, his annual expenses exceeding $5000. On July 9th, 1862, Wells, one of the defendants, a' policeman, stationed himself in front of plaintiff’s store, and was there every day, and nearly all day, pointing out plaintiff’s establishment to the public as a “ Peter Funk” or mock-auction concern, in which they would have their pockets picked, or be robbed, stating that its occupants were thieves; and as plaintiff passed in or out of his store, Wells would call attention to him, saying, “ There goes a thief—a boss Peter Funk.” This greatly injured, and was calculated to destroy, plaintiff’s business. The complaint alleged that Wells acted under the authority of Morris De Camp, captain of the Metropolitan Police, and John A. Kennedy, superintendent, all of whom were alleged to be pecuniarily unable to respond for their acts in damages. It was also alleged that the defendants avowed the intention to continue the course above described, wherefore plaintiff prayed for an injunction and other relief.</p> <p>To this complaint were annexed the affidavits of six persons verifying the complaint, showing how large crowds were collected around the plaintiff’s store by the conduct of the defendants, and his business entirely prevented. In one affidavit was contained a respectful letter from Mr. Whitehead, attorney for the plaintiff, to Kennedy, which Kennedy did not in any way notice. A temporary order for injunction was made by Mr. Justice Barnard, which the defendants now moved to dissolve.</p> <p>The defendants Kennedy and Wells put in answers, De Camp not having been served. They set up on information and belief, that the plaintiff’s establishment was a mock-auction shop, the sales in which were confined to watches and jewelry., and they set up that all they did was in their official capacity to warn strangers against the frauds practised in mock-auction establishments. It was also alleged that the plaintiff did not give public notice in the newspapers of any sale designed to be' made on either of the days when any of the acts were done of which the plaintiff complained. The answer was not supported by affidavit.</p>

In August, 1860, Elias Fassett recovered a judgment in this court against the appellant, Samuel W. Tallmadge, for the sum of $20,586.77. In December of the same year, Fassett commenced the present suit against the appellant and one Andrew Harder, in the nature of a creditor’s bill, and sought to set aside a conveyance made by the appellant to Harder, on the ground of fraud.

Israel W. Moses sued the Waterbury Button Company and obtained an attachment against property issued as a provisional remedy under the Code. The defendant, having given the usual undertaking to procure a discharge, entered an order thereon by plaintiff s verbal consent, which order plaintiff now moves to correct so as to save Ms right to except to the sureties and have them justified before the delivery of the property.

Daniel Berrian sued the defendants on a contract for work and materials.

Hugh McRoberts was elected treasurer of Richmond county in November, 1873, and took and filed his oath of office December 2 following. The annual meeting of the supervisors was held on October 25, 1873. The official bond of McRoberts was dated December 29, 1873, and acknowledged and delivered to the supervisors January 14, 1874. It was approved by them January 22, and was filed in the Richmond county clerks office January 23, 1874.

A paper purporting to be the last will and testament of Lazarus Heady, deceased, was offered for probate, and was contested by the heirs at law and next of kin on various grounds, the chief one being that it had not been duly executed. The alleged will was written on a sheet of legal-cap paper and occupied the first and third pages, the second page being left blank, as also the fourth page.

The complaint in this action was in the following form: “New York Superior Court.—The Butchers and Drovers’ Bank of Providence, plaintiffs, against Frederick Jacobson, Jonas Gr.

Irving Hayes sued Schuyler C. Thompson, and recovered judgment, on a verdict at the circuit. The defendant now moved to set aside the verdict on the ground that one of the jurors was a cousin of the plaintiff, a fact which was not known to the defendant until after the trial was had.

Motion on the part of the defendant to set aside an attachment issued under section 229 of the Code. This action was brought by Lyman Tibbitts and William Ikins against Henry M. Townsend.

This action was brought by Francis H. Salters against Theodore Salters, and Theodore Salters, Anna Salters, and Lansing Pruyn, executors, and Euphemia M. Yence, to determine the construction of the will of Francis Salters, deceased. Theodore and Anna Salters appeared and answered; Lansing Pruyn, their co-executor appeared and put in a several answer. The cause was noticed for trial on both sides.

Motion to confirm report of referee. The petitioner, Martha E. Clark, filed a claim against $753.52, in the hands of the chamberlain of the city of Mew York, surplus moneys on a sale in foreclosure, in an action by Horace F. Clark against Margaret Clark, widow of Owen Clark, the executors of Owen Clark, and several others.

Judgment was recovered in this action by Joseph Abels against Isaac H. Westervelt and Henry Camp, on the 9th October, 1861, for $947.11. An attachment had been issued against the property of Westervelt, as a non-resident, September 11th, 1861, and about the same time levied on the partnership property of Westervelt and Camp. Execution was issued immediately upon the recovery of the judgment.

I. April, 1873. The testator, Thomas Timpson, died in 1856, leav-' ing a will, by which, after giving various legacies, he devised and bequeathed all the rest and residue of his real and personal estate to his children, their heirs and assigns, share and share alike. . By the next clause of his will he authorized his executors and the survivor of them to sell and convey his real estate, so devised.

Writ of Error to New York General Sessions. Honeywell Vincent, otherwise called Henry Vincent, the plaintiff in error, was convicted at the New York General Sessions of forgery in the first degree, and sentenced to an imprisonment of ten years in the state-prison. He sued out a writ of error. The case came up upon the indictment and postea.

The Lake Mahopac Manufacturing Company applied to the supreme court, on affidavits, for the issue of a mandamus to compel George L. Yan Nort, the commissioner of public works of the city of New York, to make application to the supreme court for the appointment of commissioners, to ascertain and appraise the compensation to be paid, by the city, to the relators, for property taken by the city under an arrangement originally made with William M. Tweed, the predecessor of the…

I. Motion to discharge attachment. This action was brought by Thomas Thacher against John H. Cutter, to recover $10,315.79, as the plaintiff’s share of the--profits under a contract between the parties for the manufacture, .shipment, and sale of whiskey. On the 7th day of July, 1860, the plaintiff obtained a warrant of attachment against Cutter as a non-resident debtor.

Milton A. Goodenough brought this action against Wm. H. Spencer, to recover possession of certain personal property which Spencer had transferred by bill of sale to Stevens, his counsel, and which Stevens had sold to the plaintiff.

This action was brought to recover two years’ rent, under a. lease, of a stone-yard, in New York city, for three years from Hay 1st, 1857. The lease was in writing, signed by the respective parties, but not under seal. The defendants occupied the premises, and paid rent till May 1st, 1858. The principal defence was a surrender and acceptance prior to May 1st, 1858.

This action was originally brought by Abram S. Vosburgh, and continued by John S. Vosburgh, administrator, against Charles R. Huntington, Charles E. Beveridge, and Nathaniel P. Jacobs, to obtain the delivery of two hundred and four fir-kins of butter, valued at $760. The butter was delivered to the plaintiff at the commencement of the action under proceedings of claim and delivery.

Judgments for costs were recovered against one Samuel W„ Tallmadge, in three several suits, upon which executions were issued by the attorney for the plaintiffs, to Rensselaer county.

Motion to set aside a judgment of affirmance taken by default. The appellant had never served any case, nor obtained any extension of time to do so, although the time allowed for that purpose had. long since passed. The respondent noticed the appeal for argument, put it on the calendar, and, the appellant not appearing when the cause was called, the respondent took a judgment of affirmance by default.

Motion to set aside a discontinuance. This action was brought by the State of Indiana against William Woram, Edw. Y. Haughwout, William A. Swain, John H. Smith, Jacob Bodine, John Totten, Sen., and Richard D. Little, to set aside certain conveyances by Haughwout of real estate, in Richmond county. The other facts are sufficiently stated in the opinion.

Motion to compel the plaintiff to elect between the several counts of his complaint. This action was brought by William E. Smith against Benjamin Douglass and Robert G. Dun, to recover the sum of $10,000. The complaint, by way of preamble, set out an agreement in writing, by which the defendants employed the plaintiff as clerk for the term of five years from the 15th day of April, 1857, at a salary of $600 for the first year, with an increase of $100 for each year succeeding.

Motion to dismiss complaint for failure to file security for costs. This action was brought by George Cadwell against Stille Manning, Samuel F. Fighter, and Jarvis Gwinn, on an indorsement for $1,295.74. Manning and Gwinn obtained an order for the plaintiff, a non-resident, to file security for costs within twenty days, or show cause, on August 7th, 1862, why the complaint should not be dismissed.

In two actions—one by James B. Adrience, and others, and the other by Herman Bacharch, and others, against Alfred E. Lagrave, the defendant moved to set aside the service of the summons and complaint?, and to vacate the orders of arrest, which had been granted.*

This action was brought by Benjamin Salters, Jr., and David Porter Lord, against Edward Ralph, Jr., to recover damages for a failure to perform a contract.

Plaintiffs sued Mark Hale, as the maker, and Hezekiah Cass, as the indorser of a promissory note for one thousand three hundred and fifty dollars, payable at the plaintiff’s bank. The note was dated October 18, 1872, and payable one month after date. The plaintiffs were an association organized under the general banking law of this State, enacted in 1838. The parties agreed upon, and submitted to the court the following facts.

Application by the committee of a lunatic to be discharged from his office. In April, 1859, a committee of the person and estate of Hannah E. Miller, a lunatic, was appointed by this court, who immediately entered upon the discharge of his duties. The entire estate of the lunatic consisted in an income of six hundred dollars per annum, resulting from a trust created for that purpose.

Demurrer to the complaint. This action was brought by Montaigne Ward against L. H. Servoss, wife of Thomas L. Servoss, upon a note for $425, in which she agreed to make the amount chargeable upon her separate estate. The note was dated March, 1862. The complaint alleged that the defendant’s separate estate consisted of certain land, and sought judgment, specially charging it. The defendant demurred for want of cause of action.

This action was brought by William B. Scott, Robert H. Thorn, and Richard 0. W. Moore, against John and Daniel Pilkington, to recover the amount of three bills of exchange for one thousand pounds sterling each, drawn by Fleming & Alden upon the defendants, and purchased by plaintiffs, but which defendants refused to accept. The defendants, in February, 1856, delivered to Fleming & Alden the following letter: “ New Yoke, 16th February, 1856. “ Messrs.

Motion to make the complaint more definite and certain. This action was brought by John S. Giles against John F. Betz to recover $831.81. Defendant was surety for Glandee & Torney, tenants of the plaintiff.

Motion to strike out defences. This action was brought by George Kellogg against William Baker, to recover $480.15. The answer averred three defences. 1. Statute of Limitations. 2. Compromise and release. 3. General denial. Plaintiff had previously moved to strike out the second defence as sham. The motion was heard before Mr. Justice Barbour, who ordered the third defence to be stricken out as sham.

This action was brought by Joseph Hart against John A. Kennedy, Thaddeus C. Davis, and Dewitt C. Smith, to recover $20,000 damages for an alleged false imprisonment. An order of arrest was obtained, requiring that the defendants be held to bail in $1,000 each. On motion, Hr. Justice Gierke vacated the order as to the defendants Kennedy and Davis, and reduced the amount of bail required from Smith to $250.

<p>Hew Trial.—Verdict against Evidence.</p> <p>The general rule applied in penal actions and in actions fof defamation, that a verdict for defendant will not be set aside as against evidence if the plaintiff has sustained only nominal damages, should be applied to actions for assault and battery, especially where the plaintiff was not wholly blameless, and has not been grossly injured or insulted.*</p>

Mary Ann Hayden, a married woman, in her life time, deposited money in the Brooklyn Savings Bank. After her death, her mother presented her pass book at the bank to the teller, who after putting some questions to her to test the identity of the depositor, which were readily answered, paid her the balance due on the account, believing that he was paying the individual who actually deposited the money. Patrick Hayden, the husband of the deceased, was present at the time.

<p>Mechanic’s Lien.—Construction oe the Statute.— Parties.—Notice oe Lien.</p> <p>Where, after part of the work called for by a contract made by several joint contractors, has been finished and paid for, and the contract abandoned, if one of the joint contractors, by a new arrangement with the owner, goes on and completes the work, he may file a lien in bis own name therefor ; and the fact that he subsequently takes an assignment from the other original joint contractors, does not show that they were interested, and were necessary parties.</p> <p>An ambiguity in the introduction of the notice, in describing the claim as being against one person, instead of as against two, may be cured by reference to a full and accurate statement of the claim in subsequent parts of the notice.</p> <p>The mechanic’s lien law is to be treated as a remedial statute ; and though it is to be strictly construed so far as to require substantial compliance with every material provision by which the property of a third person may be incumbered by the mere act of the claimant, yet it is to be construed not so strictly as to deprive creditors of the benefit intended to be conferred.</p> <p>A mistake in a notice filed under the act of 1863,—e. g., not naming all the debtors,—may be deemed cured by the provision of section 2, of the act, that no variance shall impair the claimant’s right, but relief shall be given according to the*evidence.</p> <p>In a proceeding under that act, the court may give a personal judgment against the owner, if the debt was his proper debt.</p>

This action was brought by Alexander Atocha against dementi P. Garcia, to recover the value of board and lodging. The complaint contained allegations of fraud in the contracting of the debt in question, intended to show a ground for arresting the defendant, as a provisional remedy. The plaintiff caused the defendant to be so arrested, and now, the cause being at issue, moved for a reference, on the ground that it would require the examination of a long account.

The plaintiff, having a judgment on which an execution against the defendant had been returned unsatisfied, applied, in 1859, to Judge Robinson, then county judge of Albany county, for an order, under section 292 of the Code, to examine the defendant in regard to his property. The order was granted, duly served, the defendant appeared, and the examination was in part had, and adjourned to a subsequent day.

The action was brought by a husband against his second wife for a divorce. He obtained judgment by the wife’s default to interpose a defense, and he married again. Subsequently dissensions arose between him and this third wife; and the second wife, from whom he had been divorced, applied to the court to open the judgment on the ground of fraud.

The plaintiff in the action last reported, brought another action against his third wife, Constance, for a divorce from her on the same ground as those he relied on formerly in his action of divorce against his second wife, Caroline, which is above reported.

John T. Hodges, the plaintiff, now deceased, recovered judgment in this action against Anson Wolcott, the defendant, on October 13,1856, for $1163.72. Execution was issued against the defendant as a resident of the city and county of New York and returned unsatisfied. On December 13, 1859, a supplementary order was granted by Hr.

This was an action by John Aitken and others against Sarah C. Clark.

This action was brought by Michael Mullaney, administrator, against William Spence, to recover five thousand dollars damages for the death of the plaintiff’s child, four years and six months old, caused under circumstances which fully appear in the opinion. The case now came before the court on appeal from a judgment of nonsuit, and from an order denying a motion, made upon the judge’s minutes, for a new trial.

<p>Removal of Guardian by Surrogate.—Hew Appointment.— Residence of the Infants.—Married Women.</p> <p>Under 2 Rev. Stat., 153, § 17,—which provides that on the removal of a guardian the surrogate may proceed and appoint a new guardian,—the new appointment is to he made by the surrogate whose order of removal created the vacancy, without regard to the residence of the infants.</p> <p>Section 9 of chapter 157 of Laws of 1860 (repealed by the Laws of 1862, ch. 172), which constituted every married woman joint guardian of her children with her husband, related to married women only; and they became, not sole guardians, but only jointly with their husbands. To such as had no husbands, the act did not apply.</p>

This action was brought by James Ross against Alexander Longmuir. The complaint was verified, and the defendant-served an answer, claiming a recoupment.

The relators were Charles F. Livermore, Henry Clews, Henry W. Mason, and Theodore Fowler; the respondent, Alexander Hamilton, Jr. In May, 1862, Hamilton, as landlord, commenced summary proceedings against the relators, to recover possession of an office on the first floor of Jauncey Court, in the city of Hew York, on the ground, as stated in the affidavit on which the summons was issued, that he had leased the office to the relators for the term of one year, commencing May…

Elise Magnin sued William B. Dinsmore, as president of a joint stock company; and defendant offered to allow judgment, which plaintiff did not accept, but went to trial and recovered a verdict not more favorable than the offer. The judge who presided at the trial, therefore, awarded to the defendant all costs subsequent to the offer.

Elizabeth Brown brought this action against Hiram Northrup and Joseph S. Chick, to recover possession of a promissory note, which the plaintiff alleged she deposited in bank for collection, and which, as she alleged, the.bank had delivered to the firm of Stewart, Steele <& Co. for collection, and they had assumed to transfer to the defendants, in payment of their own precedent debt. It was further alleged that defendants had become insolvent.

In the matter of mechanics’ liens, filed in this court, against the premises, Nos. 740 and 742 Broadway, four motions were made. Three of the motions were to discharge three liens filed by W. Jones, on the ground that they were filed more than three months after the work was done' and materials furnished.

This was an action against the defendant for infringing plaintiff’s trade-mark.

William R. Carnes was the plaintiff in this action, having been substituted for Arthur B. Carnes, deceased. George W. Platt and John L. Griffin were defendants. The facts are fully stated in our report of the previous decision, in volume 7 of this series, page 42. That decision was reversed by the court of appeals (see 2 Abb. Ct. App. Dec., 159, note).

<p>Demurrer to complaint.</p> <p>The facts appear in the opinion.</p>

The action was brought to recover the difference between 78 and 84 cents per cubic yard, on an extensive excavation of rock, which the plaintiff had made for the defendant. The parties had verbally agreed upon the price, but differed in their recollection of the terms—the plaintiff claiming that they had agreed at 84 cents per yard, and the defendant that their agreement was for 78 cents, at which rate he paid the plaintiff.

This was an action hy Daniel Brooks against William BL Hanford, to recover damages for assault and battery. The facts-are fully stated in the opinion.

<p>Supplementary Proceedings. —Adjournment.— Contempt.</p> <p>A creditor in supplementary proceedings, who neglects to adjourn or extend the proceedings after the examination of the debtor has been had, thereby allows the proceedings to drop, and cannot subsequently, without notice to the debtor, compel a witness to appear and testify. "</p>

This action was brought by James A.. Brown against Margaretta Niess. It now came before the court on defendant’s-motion to set aside for irregularity a judgment of affirmance rendered at general term.

This action was brought by Ernest Richter against Henry R. Murray and Robert S. Tait, upon two promissory notes of $111.98 each. ■ The complaint, omitting formal portions, was as follows: “ 1st. That there is due to the plaintiff from the defendants, the sum of one hundred and eleven dollars and ninety-eight cents, with interest thereon from May 4th, 1858, on a written instrument, of which the following is a copy, to’ wit: “6 $111t9ó8o Mew York, May 1st, 1857. “ ‘Twelve…

Hannah M. Noe, administratrix of Isaac D. Hammond, deceased, recovered two judgments against John S. Christie, on which executions against the person were issued ; and defendant now moved to vacate two of such0 executions, which had been issued to the sheriff of the county of Richmond. The grounds of the motion appear in the opinion.

<p>Receiver. —Peesioe.</p> <p>Moneys due to a debtor, from the public authorities, as a pension, can not be reached by a creditor of the pensioner until actually paid over to the debtor.</p> <p>A pensioner has no property in future payments to be made to him on account of the pension.</p>

Edward L. Field, surviving administrator of Julia F. Brailesford, sued Joshua M. Van Cott, and Eli H. Reed in the New York common pleas, on an administration bond, made by defendants, together with Thomas Gr. Van Cott, administrator with the will annexed, of the goods, &c., of Gabriel Van Cott, deceased. The complaint was substantially in the form which was sustained in the case of People v. Falconer, 2 Sandf., 81.

<p>Motion for an order for an attachment.</p> <p>The facts are stated in the opinion. '</p>

November, 1861.—Appeal from a judgment. This action was brought by John Stevenson against John B. Buxton, to compel the specific performance by defendant of his agreement to convey the house and lot No. 152 West Thirty-second-street, New York city.

<p>Appeal from judgment entered upon the verdict of a jury, in favor of the plaintiffs, for one thousand seven hundred and fifty-nine dollars and fifty-nine cents. The facts appear in the opinion.</p>

This action was brought by Abraham Newfield against Hayman Copperman, and now came before the court on a motion by defendant on a case, for a new trial.

James W. Fisher sued defendants, alleging in his complaint that he owned fifty shares of the full paid stock of defendants, who were a corporation under the life and health insurance companies act of 1853, incorporated thereunder about September 24, 1866 ; that by the charter, each stockholder was entitled to receive a semi-annual dividend riot exceeding three and a half per cent. ; that no dividend had been paid upon plaintiffs stock; that defendants had received large sums…

<p>This was an appeal from a judgment at the circuit.</p> <p>The action was brought by William Halsey against Adolphus W. Flint and Josiah Simpson, upon an undertaking which the defendants, as sureties, had given upon an appeal in another action.</p> <p>The facts appear in the opinion of the court.</p>

Kelson Millerd, .Theron J. Paine and Robert C. Brown, sued William B. Thorn and Albert B. Smith, in the supreme court, for goods sold. The complaint alleged that plaintiffs were copartners at the time of the sale, and the time of suing,\and it alleged the sale in the usual form.

Supplementary proceedings. Judgment was recovered in this action in favor of Henry W„ Ward, plaintiff, against the defendants, Welcome E. Beebe and Elisha Ruckman, April 29,1862, for $610.40. After the return of the execution unsatisfied, an order was issued for the defendant Beebe to appear and submit to an examination. He failed to comply with the order. The plaintiff moved for an attachment, which was denied. The remaining facts are sufficiently stated in the opinion.

This action was brought by Edward Rowe against Elmor Thompson. The facts are sufficiently stated in the opinion. The plaintiff had judgment, and defendant appealed.

Irvine sued Wood Brothers as occupants, and Fowler as owner of premises, for negligence. Judgment was recovered.

Ellen L. Putnam, as administratrix of her deceased husband, brought this action in the New York superior court to recover of defendants the damages sustained by the death of her husband. The deceased was riding in defendants’ horse car, in the city of New York, in the evening, having two ladies under his escort.

Judgment was recovered in favor of James O. Eiggs against Daniel W. Whitney, in this action. Subsequently, John J. Tyler was appointed receiver of the judgment-debtor, in supplementary proceedings in this court, in December, 1857. Tyler was afterwards appointed receiver, in certain actions, in the Superior court. One William Topham had rented to Whitney premises in College Place, New York city, for eight years and two months, from March 1st, 1851, at a rent of $900.

<p>Probate.—Parties.—Record oe Surrogate’s Court.—Ire arts.—Testamentary Capacity.—Burden oe Prooe.— Lucid Interval.</p> <p>It seems that any interest, however slight, or the bare possibility of an interest, is sufficient to entitle one to oppose probate; and that the executors under a will may oppose the probate of a later will, although the parties beneficially interested under the earlier have released their interest.</p> <p>The surrogate cannot allow the testimony and proceedings on an application for probate to be withdrawn from his court, on the abandonment of the proceedings by the proponent.</p> <p>Nor can the court, on the consent of the guardian ad litem of an infant, or his counsel, refuse or allow probate, without formal proof and an actual decision upon the merits.</p>

This action was brought by John Purchase against Mahlon Mattison and John B. Mattison, upon two cheeks for two hundred dollars each, drawn by the defendants upon a bank in Hew York city. The answer was, that the checks were obtained by one Zolinger from the defendants by fraud, and under an agreement that was hot performed, and that plaintiff took them without consideration and with knowledge.

This action was brought by Jacob Caspar against James O’Brien, sheriff, &c., and now came before the court on appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying defendant’s motion for a new trial upon the judge’s minutes.

Jesse Hoyt, Leonard Hazeltine, Jr., and.Theodore J. Husted, sued Gorham F. Baker and others, to recover the possession of a cargo of corn, and damages for its detention. The defendants were ;—Gorham P. Baker and Gilbert Montague, warehousemen in the city of Brooklyn; Abiel Akin and Lloyd I).

<p>Appeal from a judgment.</p> <p>This action was brought by James Gibson, assignee of Hugh McCrossan, against William C. Haggerty and Ogden Haggerty, to recover $105.46. In July, 1859, William' Sturgis and others recovered judgment against McCrossan, the assignor of the plaintiff, and an execution issued thereon was returned unsatisfied. On a sufficient affidavit, an order, under section 294 of the Code, was made by Mr. Justice Roosevelt, in November, 1859, requiring the present defendants'to appear and answer, concerning any property in their hands bélonging to the judgment-debtor McCrossan. One of the defendants, examined under this order, testified that there was in the hands of the defendants’ firm of Haggerty & Co., belonging to the judgment-debtor McCrossan, the sum of $105.46. Hpon this examination, Hr. Justice Gierke, on December 5th, 1859, made an order requiring the defendants to pay this sum of $105.46 to the said judgment-creditors of HcOrossan; and on the same day the defendants paid the same. The plaintiff alleged that the judgment-debtor HcOrossan had, in fact, made an assignment of these moneys to him on the 27th day of April, 1859; but admitted that the defendants had no notice of it, at the time they made the payment under the order. The plaintiff herein made a demand upon the defendants of these moneys, to wit, $105.46, before the commencement of this action. Judgment was rendered for the defendants, and plaintiff appealed. By stipulation, the only question to be decided now was, whether the order of Judge Gierke of December 5th, 1859, under which the defendants paid the $105.46, was legal and valid.</p>

This action was brought by Samuel Stockwell against John H. Hillier and Thomas Yietch, to recover possession of personal property. The plaintiff, a resident of Kentucky, was the ownei of ten barrels of whiskey, which he consigned for sale, on his account, to the firm of Purdue & Ward, consisting of John Purdue and John S. Ward, commission merchants in the city of Hew York.

Greorge S. Hazard and Prank W. Piske sued William H. Abel, as president of the Western Elevator Company, to recover damages for twenty-four thousand bushels of corn, alleged to have been converted by the defendant, an elevating company of Buffalo. The cause was tried by the court without a jury, May 7, 1873.

This action was brought by Edward Evans against S. M. Wood, to recover $32, the price of certain clothing made by defendant for the plaintiff. Both parties were non-residents of the State. The plaintiff had judgment, and defendant appealed.

This action was brought by Henry G. Rice and others against Augustus Whitlock, upon an undertaking executed by the defendant as surety in an action between the present plaintiff's and one Isham, as defendant, on an appeal taken therein from the special to the general term of this court.

\ This was an action by Eliza Malone against B. M. Stilwell 1 and Elizabeth Stilwell, to recover two thousand dollars for an alleged slander.

George M. Chapman sued Alexander Douglas, Joseph B. Taylor and Alexander Matthews, in the New York - common pleas, to recover the value of a safe and its contents, taken from the possession of the plaintiff in November, 1866, by the sheriff under an attachment issued in an action brought by the defendant, Douglas, against the New York Silk Manufacturing Company.

Motion to confirm report of referee, appointed to ascertain defendant’s damages by reason of an injunction. The action was by Robert Strong against Benjamin De Forest and Charles L. Rowan. The facts are sufficiently stated in the opinion.

This action was by William T. Julio against Henry T. Ingalls and others. The defendants moved upon an affidavit showing non-residence of the plaintiff, and that a former action had been brought against the defendants by the same plaintiff, in the Supreme Judicial Court of Massachusetts, in which judgment was rendered in favor of the defendants, and for their costs, §115.44. The defendants, likewise, submitted an authenticated copy of the record of the action in Massachusetts.

Judgment was recovered in this action by John H. Morrell against Eibe Hey, for $199.38. After the return of execution unsatisfied, an order for the examination of the defendant, in supplementary proceedings, was issued, and a reference ordered to take such .examination.

<p> Habeas corpus. </p> <p>In the case of Lawton v. Wells, in the marine court, judgment for plaintiff was entered by default, and execution issued to Marshal Toplanyi, who levied upon chattels of the defendant, the judgment debtor, part of which were deposited with Richard Walters, auctioneer. The other part, consisting of a watch and chain, were pawned by an employee of Toplanyi, and subsequently redeemed by said Walters. The judgment and execution were set aside, by a consent of the attorneys; and an order of the court entered thereon.</p> <p>By order of said court, dated March 21,1874, it was directed that “Marshal Toplanyi and all persons holding for him or having in possession the goods and property by him taken . . . respectively deliver up the said' goods and property to the defendant on demand.”</p> <p>These orders were served on Richard and Charles Walters, who delivered up all the chattels except the watch and chain, upon which they claimed a lien for moneys paid in taking them out of pawn. On orders to show cause why said Richard and Charles Walters should not be punished for contempt in refusing to return the goods and chattels, an order was made on April 15,1874, notwithstanding the motion was resisted on the ground of said lien, adjudging both Charles and Richard Walters guilty of contempt, and ordering that each pay to the clerk of the court a fine of one hundred dollars for the use of defendant, and fifty dollars costs to his attorney, and that they be imprisoned until they and each of them pay the said fines and costs, and until they restore and deliver to said defendant the goods and property referred to in the order of March 21,1874, and that a commitment should issue to carry that adjudication into effect.</p> <p>A commitment was thereupon issued, under which the relators were taken into custody. They were discharged on habeas corpus, the court holding that the commitment was defective on its face, among other things, in not stating definitely the property to be re-, turned..</p> <p>A second commitment which attempted to cure these defects, was thereupon issued out of the marine court, and the relators were again taken into custody.</p> <p>A second writ of habeas corpus was then sued out.</p>

In June, 1862, Caroline Swayze presented to the justice of a New York District Court an affidavit setting forth that one Eve Wilson was her tenant in respect to premises 149 Varickstreet, New York; that in 1807, Isaac Worden leased these premises to Samuel Helmes for fifty-six years by lease, in writing, at the yearly rent of $27.50; that in said lease, Helmes covenanted and agreed to pay and discharge all such lawful duties, taxes, and assessments as should, during the…

The plaintiffs, the Farmers’ and Mechanics’National Bank of Philadelphia, sued Walworth D. Crane and Joseph C. Danckelman, copartners, to recover the amount of an over-draft; and in the comulaint alleged fraud. Judgment was obtained against both defendants. Separate executions were issued against the person of each defendant. The plaintiffs neglected to charge the defendant, Danckelman, in execution, and he was discharged by an order of supersedeas.

Appeals from orders dissolving injunctions. These were two creditor’s actions, the first brought by Alfred Field and others against Isaac L. Hunt, George M. Chapman, and Julia Ann Chapman, against the same defendants.

This was an appeal from an order vacating judgment on a referee’s report, and setting the report aside. The facts are fully stated in our report of the order from which the appeal was taken, in 14 Abb. Pr., N. S., 227.

Henry Elsworth' took these proceedings against Kieren Muldoon, under 2 R. S., 312, to determine conflicting claims to the title to lands in the city of Hew York. The case -depended on the facts stated in the report of Livingstone v. Arnoux, at p. 158 of this volume.

I. January, 1863.—Motion for an injunction restraining the defendants from continuing and maintaining a hog-yard, slaughter-house, and fat-boiling house, and forbidding them from herding or slaughtering hogs on their premises in New York city, and from boiling offal thereon. This action was brought by Henry Dubois and others against Jenks Budlong and others.

This action was brought by Henry H. Muller against William Bayard to recover $1500 as damages for a trespass in entering upon plaintiff’s premises and carrying away certain movables. The plaintiff had a verdict for $40. With the view of obtaining costs in the action the plaintiff applied for a certificate that • the title to land came in question. The facts sufficiently appear from the opinion.

Motion to set aside an execution and return, and to vacate an s order in supplementary proceedings. j Judgment was recovered by William S. Thompson and others ] against Lydia Sargent, a married woman, for $567.79.

This action was brought by Charles A. Bulldey, Eichard Harluck, and Edward H. Bulkley, against Abiel B. Marks, Edmund C. Bramhall, George P. Lord, and Samuel JST. Brown, to recover $2,334.18, the amount of two promissory notes. The facts are fully stated in the opinion. The action was tried before Hon. Judge Hilton. The testimony of Brown and Lord taken upon commission was read.

This action was brought by Joseph Husson against Edward Fox to recover $5,000 for money lent and services as an attorney. Pending the trial before a referee, on the petition of the plaintiff and the opposing affidavits on the part of the- defendant, Hr. Justice Barnard granted an order /or the discovery by defendant of the contents of his boobs, &c. The facts and the form of the order sufficiently appear from the opinion. The defendant appealed.

This action was brought by Lorrain Freeman against James , Munns and wife, Anthony McEeynolds, Helen A. Clark, Eandolph Barnes, and others, to foreclose a mortgage for $5,600. After the sale and payment of the mortgage-debt and costs, there remained a surplus of $1,173.18. This surplus was claimed by Archibald M. Allerton, jr., and by Mary L. Clark, an infant daughter of the above-named Helen A. Clark, the latter having departed this life since the commencement of the action.

Motion to set aside an order for the examination of a judgment-debtor in supplementary proceedings. Judgment had been recovered, in this action, in favor of John McEwan, plaintiff, against Nathan G. Burgess and W. James, for $196.86. On the return of an execution, unsatisfied, the plaintiff obtained, from a justice of this court, an order for the examination of Burgess on an affidavit setting forth the usual facts, and that Burgess had a place of business in New York city.

The plaintiff, Peter Levins, brought this action against Solomon B. Eoble, an attorney, to recover certain moneys alléged to have been placed in his hands by the plaintiff.

Motion to set aside an order for the examination of a judgment-debtor in supplementary proceedings. The judgment was for costs on dismissing the bill in a suit in chancery, brought by Seth Driggs against Samuel B. Williams. Decree was entered June 8th, 1842, and the money judgment remained unsatisfied of record.

This was an action brought for the foreclosure of a mortgage. After failure to answer, a referee was appointed to take the usual proofs and compute the amount due. On the coming in of his report, plaintiffs applied for judgment of foreclosure and salé.