Volume 15 — Jones & Spencer's New York Superior Court Reports

This action is- brought to foreclose a mechanic’s lien filed by plaintiffs.

Appeal by defendant from a judgment in favor of plaintiffs, entered upon a verdict of a jury in May, 1878, for $7,525. The action was brought by the plaintiffs’ assignors, F. S. Weeks & Co., for damages to their stock of goods, consisting of paper-hangings, occasioned by the flooding of their cellar, in consequence of the alleged fault of the defendants, in July and August, 1873.

<p>Appeal from an order of the special term denying the motion of the petitioner to vacate an assessment.</p> <p>The assessment was laid April 27, 1871. This proceeding was begun December 27, 1879.</p>

Appeal by the defendants from an order denying a motion for a new trial on the minutes. Appeal by the defendants from an order denying a motion for a new trial on the ground of surprise. Appeal by the plaintiff from an order granting a ■ new trial on the ground of newly-discovered evidence. All these appeals were heard together. The action was brought to recover for the plaintiff’s services in selling subscription publications for the defendants upon special contract.

Appeal by defendant from order denying his motion for a new trial on payment of costs and damages. The action was in ejectment. Issue having been joined, the cause was called for trial. The defendant did not appear and an inquest was taken. The defendant moved for a new trial, under the statute referred to in the opinion, on payment of costs and damages.

Appeal by the defendants from a judgment in favor of the plaintiff for $1,063.67, recovery and costs, entered upon the findings of the court without a jury. The action was brought to set aside a purchase of $200,000 in United States bonds, made by the defendants, as brokers for the plaintiffs, and to recover the sum of $10,746.74, with interest, on the ground of fraud. The findings of the court were as follows: “First.

This case comes before the court upon exceptions ordered to be heard in the first instance at the general term.

<p> Sale of stock and “dividends declared during the time,” &c.—what dividends pass. </p> <p>Under a written contract to accept stock at a specified price, within a limited period of time, which contains the following clause: “ The undersigned is entitled to all the dividends or extra dividends declared during the time,” &c., dividends declared before making the contract and payable after the time therein limited, do not pass ;—this, though there be a custom among brokers in the city of New York (where such contract was made and to be executed), allowing such dividends to the purchaser.</p>

The action was to compel the defendant to issue and deliver to the plaintiff a certificate for twenty-seven shares of its capital stock, and for certain dividends thereon.

The complaint was as follows : “ The complaint of the plaintiff by Edward GL Black, his attorney, respectfully shows, on information and belief: That on or about the 22d day of January, in the year 1876, the said plaintiff and defendant entered into an agreement in writing, whereby the plaintiff agreed to make for the said defendant a perforating machine for perforating ¡Number 22 iron, 30 inches wide, with two sets of feed-rollers with feed-gear, with continuous and…

On May 8, 1877, the defendant sold to one Henry P. Finlay 600 hogsheads of St. Vincent sugars conditioned to be May—June shipment, for which the purchaser was to furnish a credit. The purchaser applied to the plaintiffs, who drew up a letter of credit and delivered the same to Finlay, the purchaser, who sent it to the defendants inclosed in his letter on the same day. The letter of credit was as follows: “Hew York, May 8, 1877. “Messrs.

<p>Appeal from judgment entered upon the verdict of a jury, rendered pursuant to the direction of the court.</p> <p>The defendants, Henry Wettstein, John Ulrich •Oehninger, and Albert Meyer, during the time mentioned in the complaint, were partners carrying on business in the city of Hew York, under the firm name of Wettstein, Oehninger & Co.; and the plaintiffs were partners doing business under the firm name of Honegger & Lavater, at Zurich, in the republic of Switzerland.-</p> <p>The plaintiffs sought to recover in this action 89,718 francs and 8 centimes, being balance claimed to be due on account of goods sold and consigned by plaintiffs to defendants’ firm.</p> <p>These goods so sold and consigned by plaintiffs were silk dress goods, manufactured in Switzerland, subject to an ad valorem duty, and were to be, and were, delivered by the plaintiffs to said firm of Wettstein, Oehninger & Co., at the city of New York.</p> <p>Subsequent to the purchases and consignments above mentioned, and prior to the commencement of this action, an action was commenced in the supreme court of this State, by said Henry Wettstein as plaintiff, against said John U. Oehninger and Albert Meyer, for a dissolution of the firm of Wettstein, Oehninger & Co., and settlement of its affairs ; and on May 1, 1876, judgment was duly entered in said action, dissolving said copartnership of Wettstein, Oehninger & Co.</p> <p>In and by said decree Feodore Mierson was appointed receiver of all the credits and property of said late firm, and he thereupon took upon himself the duties of such office and continued to act as such receiver.</p> <p>After the appointment of said receiver and before the commencement of this action, the plaintiffs commenced proceedings in the supreme court to recover from the receiver the case marked W O C No. 9, appearing in their bill of particulars, claiming the same to have been consigned and not sold.</p> <p>This matter was referred to Mr. Buggies as sole referee, and on July 23, 1878, he made his report adverse to the plaintiff’s claim and adjudging'that the same were not consigned goods, but that the receiver held the same as owner.</p> <p>This report was confirmed by an order dated July 25, 1878.</p> <p>The claim of the plaintiffs upon which they seek to recover in this action was originally filed with Mr. Buggies, the referee in the action brought to dissolve the firm of Wettstein, Oehninger & Co., and said referee was directed, in and by the decree therein, to ascertain the amount due the several creditors of said firm. To this amount so filed, the receiver filed objections, and the proceedings thereon are still pending and undetermined.</p> <p>The answer of the defendant, Wettstein, is in effect a general denial.</p> <p>The defendant, Albert Meyer, also interposed a general denial, and then set up his individual discharge in bankruptcy.</p> <p>The defendant, John Ulrich Oehninger, in his an-, swer admitted the claim of the plaintiffs, but pleaded a release as to himself.</p> <p>The receiver, having reason to believe that this action was commenced by the plaintiffs to avoid the defense interposed by him before the referee, and that, in consequence of the neglect of the defendants to set up all the defenses they had, there was danger that the plaintiffs might recover a judgment in this action to be used before the referee as a final adjudication, on petition duly applied to this court to be made a party defendant, and for leave to defend. His prayer was granted, and an order duly entered, of which the following are the material parts, viz. :</p> <p>“jIt is ordered, that Feodore Mierson, as receiver of the goods, chattels and credits of the firm of Wettstein, Oehninger & Co., be and he is, as such receiver, hereby made a party defendant in the action of John Honegger and another against Henry Wettstein and others, in the superior court of the city of New York, and that he have leave to appear and answer, and to defend the action, provided he so answer within twenty days from the 19th day of December, 1879, and the plaintiff’s proceedings in said action are heréby stayed therein to have him appear and answer within twenty days from said 19th day of December, 1879.</p> <p>1 ‘It is further ordered, that this order shall not affect the complaint of the plaintiffs, nor the answers and amended answers of the defendants, but the same shall stand as they are; neither shall it affect the depositions already taken in this action ; but the same may be read upon the trial of this action against the defendants, and each of them, and against the said Feodore Mierson, as such receiver, with like effect as though the same had been taken after the answer of the said Mierson, as such receiver, had been served; and this order is made upon such condition.</p> <p>“ It is further ordered, that issue shall be of the day of the amended answers of the defendants, Wettstein and Meyer, were served herein.”</p> <p>The receiver thereupon interposed an answer containing four separate and distinct defenses, viz. :</p> <p>1. A general denial.</p> <p>2. That all the goods in suit were, under the laws of the United States, chargeable■ with an ad valorem, duty upon importation ; that they were all shipped by the plaintiffs under and pursuant to a fraudulent agreement between the plaintiffs and the defendants to deceive and cheat the government of the United States out of its proper duties and revenues by means of false invoices, and that the plaintiffs and the defendants intentionally and in pursuance of said fraudulent agreement did so cheat and defraud the government of the United States by means of false invoices used as the basis for assessing and fixing the amount of the duties chargeable thereon ;</p> <p>3. The pendency of the proceedings before the referee for the same claim, and that they are undetermined ; and,</p> <p>4. The adjudication as to the goods marked WOO No. 9.</p> <p>Upon the trial plaintiffs’ counsel objected to the receiver introducing any evidence in the action, upon the grounds that under the pleadings he is not entitled to any judgment in the action, but that the plaintiffs are entitled to judgment against him ; also, that the receiver would only be entitled to relief, in any event,, even if his pleadings showed he was entitled to inter-' vene, to the extent of the assets in his hands.</p> <p>Plaintiffs’ counsel also objected to the witness on behalf of the other defendants, upon the ground that no such defense is set up in the answer as to them.</p> <p>The court held that such evidence should be excluded, and the defendants duly excepted.</p> <p>Defendant’s counsel asked leave to amend the answer in this case, on behalf of defendant Mierson, on the ground that there was an omission, through inadvertence and haste in drawing the answer, by introducing the following clause:</p> <p>“And this defendant is informed and believes that the said Honegger & Lavater are aided and abetted in their attempt to supersede the rights of your petitioner;, conferred as aforesaid, by one or more of the partners of the said late firm of Wettstein, Oehninger & Co.; and he has reason to believe, and does believe, that the said action in the superior court has been brought by collusion between the said Honegger & Lavater, and one or more of the said late firm of Wettstein, Oehninger & Co., for the purpose of obtaining a judgment which can be pleaded and proved before said referee-upon said contest.”</p> <p>The court allowed the amendment.</p> <p>Plaintiffs’ counsel renewed the motion to exclude the testimony previously offered, on the ground that the receiver is not entitled to make that defense under the pleadings. 2. That assuming the allegations of the pleadings are true, it does not entitle the receiver to intervene as a defendantin other words, he is not entitled to any relief in the action—no claim is made against him. 3. He cannot prevent a recovery against the three defendants, inasmuch as the plaintiffs are entitled to enforce the personal judgment which may be obtained against the other defendants, and it does not lie with the receiver to make a defense for them which they have not set up.</p> <p>The court excluded the evidence and noted an exception.</p> <p>' Defendants’ counsel offered to contradict the invoice mentioned in the complaint, and bill of particulars made out by the plaintiffs of the goods or merchandise mentioned in the complaint, and in the evidence or deposition of Honegger.</p> <p>Objected to on the same grounds, and also upon the grounds that it is not competent. Excluded; exception.</p> <p>At the conclusion of the evidence on both sides, which largely went to the question of value, the court dismissed the complaint as against the defendant Oehninger, denied the motion of the defendant Meyer for. a dismissal as to him on the ground of his discharge in bankruptcy ; denied a similar motion of the defendants, Wettstein and Meyer, on the ground of fraud on the government, and the further ground that the release of Oehninger operated as a discharge of all the partners ; denied .the motion of the defendants, Wettstein and Meyer, and of- the receiver to be permitted to go to the jury upon the questions of fact involved in the case; and, on motion of the plaintiffs, directed a verdict in favor of the plaintiffs against the two defendants, Wettstein and Meyer, for the sum of $24,224.97, all of which rulings were duly excepted to.</p> <p>Judgment having been entered upon the verdict, the defendants, Wettstein and Meyer, and the receiver appealed.</p>

Appeal by plaintiffs from judgment entered upon the report of a referee. Held: that the $30,000 of insurance in the three general policies, after reserving $10,306 on the losses of the Granite State, Lewiston, Everett and Boot Mills, must contribute to the Lowell loss in the proportion of the unexhausted balance of the insurance, viz., of $19,694; and that thereafter the Lowell loss was to be apportioned upon…

<p>Appealed by plaintiffs from judgment entered upon the report of a referee.</p>

Appeal by plaintiffs from a judgment entered against them upon the verdict of a j ury and from the order denying their motion upon the judge’s minutes for a new trial: The action was brought to recover the principal and interest of a note made by the defendant to the order of the plaintiffs, dated July 30, 1874, and payable eight months after date, for $514.74. The only defense pleaded is want of consideration.

<p>Appeal by defendant from judgment of divorce on the ground of adultery.</p> <p>Motion by plaintiff to dismiss appeal on the ground that no case was made and filed.</p> <p>The facts appear in the opinion of the court.</p>

Appeal by plaintiffs from a judgment in favor of the defendants, entered upon the report of a referee. The facts appear in the opinion of the referee, as follows : “ J. S. Boswobth, Referee.

The action was to obtain possession of a bond and mortgage, drawn payable to plaintiff, and to restrain defendant from parting therewith, &c. Title thereto was claimed by both plaintiff and defendant. The facts in the case, as found by the court below, on defendant’s requests, are substantially as follows: In September, 1869, Benjamin Loder sold certain lands and premises, situated at Bye, Westchester county.

Appeal by plaintiff from the final part of an order directing plaintiff to pay to defendant the sum of $238, assessed on the undertaking executed by plaintiff on procuring injunction, as damages sustained by defendant by reason of the injunction. Further facts appear in the opinion.

The action was brought against the sureties upon an undertaking in discharge of an attachment granted, in an action by the plaintiff against one Henry Barrowcliffe. The action was commenced on March 27, 1879 ; a warrant of attachment issued on that day against Barrowcliffe as'a non-resident, and property was after-wards duly levied upon before the giving of the undertaking.

<p>I. Preference. *</p> <p>1. Bankruptcy act.</p> <p>(a) What not necessarily a preference.</p> <p>1. A mere transfer of property does not necessarily constitute a preference.</p> <p>1. Presumption. To raise a presumption that a transfer is a preference, it should be shown that the transfer was of the whole or a considerable portion of the debtor’s property.</p> <p>2. Rebutting presumption. When the presumption rests on the fact that a considerable portion was transferred, it may be rebutted by showing that enough property was left to pay all remaining creditors, in money, as much value as was obtained in goods by the creditor alleged to have been preferred.</p>

One Smith had entered into a contract with the corporation of the city to regulate, grade, Ac., apart of 9th avenue, for which the corporation contracted to pay him certain sums.

The action was upon an alleged executory contract of sale. The complaint alleged, that the plaintiff and the defendant entered into an agreement in writing, of which the following is a copy : “ Bought by the undersigned, of Messrs.

Exceptions ordered to be heard at general term in first instance, the court having directed a verdict for plaintiff. The action was in ejectment, and the question that' is decided on this appeal relates to whether the defendant gave any competent evidence of the execution of an instrument sufficient to convey an interest in the-premises.

Exceptions ordered to be heard in first instance, at general term, after direction of verdict for plaintiff. The plaintiffs consigned property, viz.: 339 bales Esparto grass, to their factors, who were a firm called E. & C. Stokes, to sell. E. & G. Stokes employed, in their own name, the defendants as brokers, to sell the property.

One Stephen Knapp furnished material and did certain work to an armory in this city to the value of more than $9,000. He claimed that this was a valid indebtedness on the part of the defendant to him, and brought an action therefor.

The facts appear in the opinion of the court at special term, as follows: “Horace Russell, J.—This action is brought to recover the sum of $16,000, bequeathed to Mary Ann Hogan, by her father, Daniel Curtin, and to compel the administratrix to .sell or mortgage real estate to pay the bequest. “The conceded facts of the case 'are: that Daniel Curtin, a resident of the city of New York-, clied January 7, 1870, leaving a will, which was probated March 4.

. Appeal from judgment entered upon the verdict of a jury and from order denying defendant’s motion upon the minutes for a new trial. The facts appear in the opinion of the court.

<p>Partnership—liability of firm, property to levy under execution on judgment against individual partner—sale, how made, and what passes thereund&r.— Oode of Procedure, §§ 234, 235, 237, 291, 463..— Code Civil Procedure, §§ 1413-1417.</p> <p>The personal property oí a firm, subject to levy upon execution against a partner for his individual debts, consists of the tangible personal property of the firm only; and’an actual and not a merely constructive levy must be made thereon. At the time of the sale the property must be in the actual possession of the sheriff, and within view of those in attendance; and the sheriff must sell only the interest of the partner proceeded against, according to the principles of law-applicable to the sale on execution of personal property in general.</p> <p>A sale of the partner’s interest in the firm generally, pursuant to a merely constructive levy, is not sufficient to pass title to the purchaser.</p> <p>The law and authorities in regard to levy upon and sale of firm property for debt of individual partner, the procedure thereon, and the effect thereof upon the partnership, reviewed by the court.</p>

This is an appeal by defendant from a judgment entered on the verdict- of a jury, and from an order denying a motion for a- new trial on the minutes. On July 6, 1878. the plaintiff entered one of the defendant’s cars at Fiftieth street, paid his fare, five cents, and rode up to Sixty-fifth street. The car he was on was what is known as a short car, and did not go above that street.

This is an- appeal from an order denying a motion for a new trial on three grounds, viz.: newly discovered evidence, surprise, and that the verdict was procured by conspiracy. This was an action to recover damages for certain injuries alleged to have been sustained by the plaintiff by and through the negligence of the servants of the defendant.

This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes, and also from an order denying a motion for a new trial made on the case containing defendant’s exceptions, and upon the ground of newly discovered evidence and surprise at the trial.

■ Appeal by defendants from a judgment, entered on the verdict of a jury, and from an order denying a motion on the judge’s minutes for a new trial. The action was brought by the plaintiff, as administratrix, for negligence, causing the death of plaintiff’s intestate. The defendants were copartners in the business of manufacturing and operating hod-elevating machines.

The action was brought to recover damages for an injury sustained by plaintiff, while at work as a machinist, upon defendants’ premises, repairing a defective steam-engine.

By the affidavits, it was shown that defendant, More, -filed an individual petition in bankruptcy, and obtained his discharge. It also appeared that the judgment in the action was against the defendants jointly, on a note given by them as a firm, and that at the time of the petition in bankruptcy, that firm had a large amount of assets. The motion was denied.

48, entered in favor of the plaintiff upon the verdict of a jury.

By their complaint the plaintiffs alleged : That in December, 1877, they received from the firm of Netter & Co., bankers and brokers, a certificate representing two hundred shares of the capital stock of theU.

In November, 1878, Armour & Co. employed John Cameron, of Chicago, an insurance agent, to place a large line of insurance on their warehouses and stock in Chicago. Cameron informed Armour & Co. that he would employ John P. Dickinson, an insurance broker of New York, to place $80,000 of insurance on their buildings.

<p>Attorney—when not precluded under General Buie 5, from executing undertaking.</p> <p>An attorney, who has not practiced as such for some time, e. g., for one year, and is engaged in another vocation, under General Rule 5, is not precluded, by the fact that he is an attorney, from executing an undertaking in an action.</p>

<p>Appeal from part of an order denying motion for judgment on answer as frivolous.</p>

<p> Measure of damages—when market ‘value, and when cost of manufacture, &a. </p> <p>In the case of manufactured goods, evidence of the cost of production, and of other facts tending to show actual value, is only admissible to furnish measure of damages for conversion, &c., when there is no market rate.</p> <p>In this case, the plaintiff having shown the sale of several hundred copies of the book in question, and thereby established a market value, —Held, that evidence offered by defendant, tending to show the small scientific value of the work, and the cost of production, was inadmissible.</p>

<p> ■Novation. </p> <p>In order to constitute a contract of novation, it is necessary that the original indebtedness be extinguished; thus, where A. promises orally to pay the debt of B. with funds of B. in his possession, the creditor to whom such promise is made, cannot enforce the same, unless it appear that B.’s indebtedness was released or extinguished, no new consideration passing between the parties.</p>

48, entered on a verdict in favor of the plaintiff, and also from an order denying defendant’s motion for a new trial. In 1868, the defendant issued to the plaintiff a policy of insurance for $5,000, on the life of her husband. The premium was made payable semi-annually, one-half in cash and one-half in a loan, with thirty days’ grace. On February 9, 1877, when the thirty days’ grace expired, the plaintiff did not pay the half-year’s premium then due.

Appeal by plaintiff from order, made on motion of defendants Dixon and Learned, modifying order of discontinuance. The facts appear in the opinion.

Appeal by plaintiff from an order vacating an order, granted ex parte, for the examination of the defendants.

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

26, and costs. Also appeal from order denying defendant’s motion for new trial on ground of surprise and newly discovered evidence.

Appeal by defendants from judgment in favor of plaintiff, entered upon decision of a judge at special term. The action was begun against defendants’ testator in his life-time.

Exceptions of plaintiff ordered to be heard in first instance at general term, upon dismissal of the complaint at trial term. The facts sufficiently appear in the opinion.

Appeal by defendant from judgment entered upon decision of a judge sitting at special term. The defendant, a banking corporation, lent, in September, 1873, to one Farnham, a clerk of Berry & Heiser, $50,000, payable whenever the defendant should request payment, the loan being what is usually called a loan on call. As security for payment Farnham pledged with the bank seventeen promissory notes, amounting on their face to the sum of $59,726.88.

<p>Appeal by defendant from judgment entered upon verdict of jury.</p> <p>The complaint averred that the defendant entered upon certain premises, which were in the lawful possession of plaintiff, ejected him by force and violence therefrom, and took, carried away and converted to his own use, property of the plaintiff of the value of $3,000, &c.</p> <p>The answer contained a general denial and further averred that the defendant was the assignee in bankruptcy of one Bray, that within six months before the filing of the petition in bankruptcy, Bray fraudulently, and in fraud of creditors, procured certain judgments to be entered against him in favor of plaintiff, and that on the sale, under executions upon such judgments, the plaintiff bought the property in question, with the intent and design to evade the bankruptcy act and in fraud of the creditors, of Bray. On the trial it was shown that the plaintiff had bought part of the property in question at execution sales under judgment obtained by him against the bankrupt Bray. The counsel of defendant proceeded to examine the plaintiff as to the notes upon which he obtained the judgments.</p> <p>This was objected to, as attempting to assail the title to the leasehold property, without showing the parties to be in a position to attack it, and the objection was sustained. Defendant’s counsel afterwards offered competent evidence of the petition and the further proceedings in bankruptcy against Bray, and the assignment in bankruptcy to the defendant as assignee, for the purpose, as he said, of showing defendant’s title to the property in question. This was objected to and the objection sustained.</p>

Appeal by plaintiff, from judgment entered upon verdict directed by court, for plaintiff, in nominal damages ; and also from order denying motion for new trial, made upon the minutes. The defendants were stock-brokers and in consideration of the guaranty of a third person, against loss-in the matter, agreed with the plaintiff to buy and hold for him, subject to his order, certain shares of stock.

This action was tried below by a jury, and a verdict was rendered for the plaintiff. After verdict defendant made a motion for a new trial on the judge’s minutes, which was denied, and defendant excepted. No order was entered denying the motion, consequently the only appeal taken was from the judgment entered on the verdict.

<p>Supplementary Proceedings.</p> <p>1. Receiver, order appointing.</p> <p>(a) Piling and recording under the code of procedure.</p> <p>1. Should be filed and recorded in the office of the clerk of the county where the judgment debtor resides, and in order to vest the receiver with real estate of the judgment debtor, in the office of the clerk of the county where such real estate is situate (§ 298). It is not necessary to record it in a register's office.</p> <p>(6) Jurisdiction to make.</p> <p>1. When and by whom to be shown.</p> <p>In an action brought by a receiver appointed by a judge's order against third persons, he must prove every fact necessary to confer jurisdiction.</p> <p>2. Matters necessary to confer.</p> <p>1. A money judgment.</p> <p>2. An execution issued on a money judgment and returned unsatisfied.</p> <p>1. What is not such an execution. One which, in reciting the judgment, leaves the amount, and date of docket, blank, is not.</p> <p>3. An order supplementary to execution.</p> <p>1. Non-production of, when not accounted for. Not by the testimony of the clerk of the court that he cannot upon search find it in his office. Such evidence does not authorize secondary proof.</p> <p>4. That the proceedings supplementary were instituted or carried on by the owner of the judgment.</p> <p>1. When such fact does not appear.</p> <p>It does not, when a corporation obtained a judgment, and thereafter it was dissolved by judicial action, and a receiver of all its property, &c., was appointed, and there is no evidence that the supplementary proceedings were instituted by the receiver; but on the contrary in the proceedings the corporation appeared to be the owner of the judgment, and the proceedings were carried on as if it had a legal existence.</p> <p>5. That the proceedings, from their institution up to the time of the appointment of the receiver, were kept alive by regular adjournments, and that proper notice of the application for a receiver was given.</p>

Appeal by defendant, from an order denying their motion to suppress deposition, taken under commission, issued on plaintiffs’ motion. The facts appear in the opinion.

<p>Appeal from judgment on verdict for plaintiff, and from order denying motion for new trial made upon the case.</p> <p>The action was for damages, alleged to have been caused by the negligence of defendant’s servant.</p> <p>The plaintiff was a passenger in a horse-car of the defendant. At her request the conductor of the car stopped it, to allow her to alight. As she was on the plátform, about to step down, and before her foot had reached the step, the conductor, by ringing the bell, started the car ahead, which caused her to fall. While falling, the conductor suddenly thrust out his hand to save her; he did not catch her, but, according to plaintiff’s testimony, the motion of his hand accelerated her fall.</p>

<p>Contract of sale—construction of—seller’s option—condition precedent— waiver.</p> <p>The contract sued upon, after specifying quality, &c., contained the following clause: “ Said alcohol . . to be delivered . . alongside buyer’s vessel, at the rate of five hundred barrels per month from November to April, inclusive, seller’s option, free of expense to buyer, provided name of vessel and number of pier are made known before the arrival of the goods here. Alcohol to be regauged here, actual gauges given and charged for as per custom-house gauger's returns.”—Held, that the notification of the vendors, by the vendees, of the name of the vessel and number of the pier, was ' a condition precedent to the obligation of the vendors to deliver, and this irrespective of the vendor’s duty to furnish gaugers’ returns ; and, further, that there was no obligation on the part of the vendors, to give the vendees notice of the time of the intended delivery.</p> <p>It appeared that after the November delivery under said contract, and on December 15, the vendors made an assignment of all their effects for the benefit of creditors. It also appeared that on December 81, a letter from the vendees, demanding the December delivery, and offering to pay therefor, according to contract, upon presentation of gaugers’ returns, was handed to the vendors, who thereupon said, “we accept it.” The vendees also offered to prove that on the same day they requested the vendors to state whether it was “ necessary for them (the vendees) to do anything by way of tender or performance of their contract to keep it alive, or to tender the money or do anything of that kind,” and were told that it was not, —Held, not sufficient evidence to send the case to the jury on the questions whether or not the above condition precedent had been performed, or whether the vendor had waived its performance.</p>

Appeal by plaintiff from an order appointing a referee to take proof of and determine the amount of damages, if any, sustained by the defendants, who are here respondents by reason of an injunction order issued in the action. When the action was begun, and when the injunction order was made, there were, beside the present defendants, Dixon, Learned and Knox, two other defendants, Williams and Kernochan.

<p>Parties—relief as between—adjudication between co-defendants, when not granted—joint claim must be prosecuted against parties jointly defendants or jointly plaintiffs.</p> <p>An adjudication between co-defendants, to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the plaintiff and one or more of the defendants, and where the court decides that plaintiff is not entitled to the relief asked by him, for the reason that he is not the real party in interest, an adjudication will not be made as to the rights of the defendants between themselves.</p> <p>The forms of procedure do not permit the prosecution of a joint claim,—e. g., by accounting, &c.,—against parties who do not appear' jointly as plaintiffs or defendants.</p>

Appeal by plaintiff from order dismissing the complaint as to the defendant, William W. Dusenbury, administrator, &c., for alleged neglect to prosecute the action. The action was in equity for an accounting. The transaction out of which the claim arose was an alleged joint adventure between the plaintiff, a firm of Thomas Dusenbury & Son, and other persons.

Appeal by plaintiff from order setting aside order for defendant’s examination before trial. The action was for damages to plaintiff from defendant’s alleged breach of a partnership agreement, and from the unlawful breaking up of the business of the copartnership. The answer, after putting in issue the allegations of the complaint, interposed a counter-claim, the allegations of which were denied by plaintiff’s reply.

<p>Appeal by plaintiffs from order staying proceedings in this action, until costs of a former action should be paid.</p>

Conner,_ Brb and Watson. This case has been tried before, when verdict was directed for defendants. On appeal the verdict was set aside (46 Super. Ct. 91). The action was for alleged false imprisonment. The deceased Conner had been sheriff, and during his term, arrested plaintiff by virtue of an order of arrest. The plaintiff gave the usual underbaking with sureties.

<p>Motion, to tax sheriff’s fees and disbursements after sale on execution.</p>

<p>Stay of proceedings for non-payment motion costs—costs of appeal not motion costs—waiver.—Code Civil Procedure, §§ 768, 779, 3,239.</p>

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

<p>Appeal from order opening a default on condition of payment of costs and of plaintiff stipulating that issues be referred.</p>

<p>I. DECISION ON DEMURRER. APPEAL.</p> <p>1. Effect of. A decision which overrules a demurrer, with or without leave to withdraw the demurrer and answer or reply, or which sustains the demurrer, with sir without leave to amend the pleading demurred to, and directs judgment thereon, and directs either final or interlocutory judgment is an oedee.</p> <p>' 2. Non-APPEAL ABILITY OF OEDEE.</p> <p>No appeal will lie until after final judgment.</p> <p>3. Appeal fbom final judgment only, effect of.</p> <p>Does not bring up for review the decision of the court below made on the demurrer.</p> <p>4. Review op decision below, how obtained.</p> <p>By an appeal from the final judgment specifying in the notice of appeal that order overruling or sustaining the demurrer is also</p> <p>APPEALED PEOJI.</p>