Volume 16 — Abbott's New York Practice Reports

This action was brought'by William S. Woods and others against Louis F. De Figaniere, President, &c. The demand in suit was against a joint-stock company, of which the defendant was president. A summons was issued, requiring the defendant to appear and be examined, pursuant to section 391 of the Code.

William L. Troxell sued John 0. Haynes, William B. Fiske, Richard N. Wen man, Frank J. Tinkham, and William H. Donaldson, and on the commencement of this action an ex-parte injunction was granted upon an undertaking in the usual form. On motion of the defendants this injunction was dissolved as to all of the defendants except Haynes.

Motion to revoke letters. Andrew Alexander died on June 13, 1873, leaving a last will and testament which contained the following clause: “I hereby nominate and appoint my said wife the executrix of this my will, hereby revoking all former wills by me made, and request that such male friend as she may desire shall be appointed with her as co-executor.” Letters testamentary were duly issued to Mary E. Alexander, his widow, and afterwards on or about March 2, 1874, upon her…

Charles D. Evans sued Charles H. Kalbfleisch and. others, executors. The complaint alleged that the plaintiff was employed and retained by the defendants’ testator h> render, and that he did render, services for such testator, as his attorney and counsel, and in preparing and procuring testimony in a suit expected to be brought,, and which afterwards was brought, against such testator.

' This action was by John Gardner and Charles Coleman against Daniel Tyler and John J. Boyd, to recover $19,649.85.

Defendant’s testator, in 1856, agreed with plaintiff, for a valuable consideration, to provide her with support and a home for her life. On his death, in 1870, his provision for her maintenance ceased, and she now sued his executors. On the trial plaintiff claimed entire damages for the breach, and was allowed to put in evidence the Northampton tables to prove her probabilities of life.

,, This action was brought by Frederick Fairchild, as receiver of Thomas Gwynne, a judgment-debtor, appointed in proceedings supplementary to execution, to set aside as fraudulent a general assignment made by the judgment-debtor. The defendants were John A. and Thomas Gwynne.

An application was made in this matter to the surrogate, by the administrator, for leave to compromise a claim of the estate against the Third Avenue Railroad Co., which is perfectly solvent. The claim is for five thousand three hundred and fifty dollars, for labor done under a contract.

<p>Pleading.—Consideration oe Contract to Marry. —Amendment. —New Trial.</p> <p>Where, by the complaint, the promise of marriage is stated to have been in consideration that the plaintiff would have carnal connec- , tion with the defendant, the plaintiff can not recover.</p> <p>Where a part of a consideration of a contract is good, but the other part grossly immoral, the two being joined as one transaction, the whole fails.</p> <p>It seems, that the complaint may be amended after new trial granted, if cause can be shown.</p>

Cornelius Thompson sued James R. Craig on an alleged breach of warranty in the sale of horses. It appeared that one Morgan bought the horses with money furnished by defendant, and undertook on his own responsibility to sell them to the plaintiff. The details appear in the opinion. On the trial the plaintiff recovered three hundred dollars.

This action, by Dexter B. Britton against Charles B. Phillips, was brought to recover damages for breach of a contract to convey certain real estate. The cause was referred, and plaintiff had judgment for $1,613.80. On appeal, this judgment was reversed, and a new trial ordered.

The White Hall & Plattsburg R. R. Co. sued Michael J. Myers in this court for the balance due on his subscription to the capital stock of the plaintiff’s corporation, made on the first organization of the company, in January, 1866.

<p>Appeal from a judgment.</p> <p>This action was brought by Charles G. Kellogg against Ephraim J. Totten, on articles of agreement for dissolution of partnership. The complaint was as follows:—</p> <p> [Title of the cause.] </p> <p>“ Charles G. Kellogg, of the city of Brooklyn, complaining by A. H. Dana, his attorney, against Ephraim J. Totten, of Bichmond county, showeth to the court that the plaintiff and defendant were, in the month of February, 1852, in mercantile business as commission merchants and general jobbers at San Francisco, in California, under £he firm-name of Totten & Kellogg, and had been so for a considerable time previous, viz.:— the period of about a year and three months.</p> <p>“ Plaintiff further saith, that their business at the time above mentioned was supposed by him to be promising, although it had not yielded a large profit, and that a proposition having been made about that time, by defendant, to plaintiff, to sell out his partnership interest, it was finally, with some modification, accepted by the plaintiff.</p> <p>“ He further saith, that the said defendant Totten had not at that time any capital in the concern other than his equal partnership interest—all the capital originally put in hy him having been drawn out at the time of the agreement to dissolve.</p> <p>“ He further saith, that the basis of the proposition, and the inducement to plaintiff to accept, was the value of the business done by said firm, with or for certain customers and certain business connections and acquaintances, not the property actually on hand; that one of the principal customers was John Johnson, of the city of Hew York, whose business had been brought to the concern by Totten, and of which defendant claimed to have, and plaintiff believed he had, control. That he was, in fact, the general agent of said Johnson, having a power of attorney from him for the transaction of all his business in California. That said Johnson had consigned largely to the firm, and that some part of the goods had been sold upon a credit not yet expired, and a portion of the goods remained on hand.</p> <p>“ That by the terms of the agreement entered into between plaintiff and defendant, all the partnership interest of defendant was sold out to plaintiff for the sum of §4,000. All the property of the partnership was transferred to plaintiff, together with the business of the late firm, plaintiff to pay all the debts of the firm—what was due in San Francisco by the 1st of March then next, and the foreign indebtedness by the 1st of June following; and it was expressly understood and agreed, that as respected any indebtedness to said Johnson, plaintiff was to have till the 1st of July to pay it, and defendant then stated he had a power of attorney from said Johnson by which he had power to make such agreement, and that it would be binding upon his principal, and at the same time the said defendant took possession of and assumed the coiftrol of the goods of said Johnson still remaining unsold; the said defendant further undertook to secure for plaintiff the business of said Johnson, and to aid- him generally in keeping all the customers that said defendant Totten had brought there, and maintaining the credit of the concern.</p> <p>“ Plaintiff further saith, that he complied with the conditions of this agreement, by paying defendant Totten the sum of §4,000,, and paying all the indebtedness of the firm in San Francisco within the period specified; that he also made preparations for the payment of the foreign indebtedness, and would have discharged the same without any difficulty within' the time prescribed. That the said defendant remained as clerk of plaintiff in the store, where the partnership had been conducted, at a salary of $200 a month, up to the 28th of Hay following, to which time he was paid his" salary in full, and quit plaintiff’s employment, with no intimation of any different understanding or intention than what had been agreed as above set forth; and the plaintiff was at that time doing a prosperous business, and had the confidence of his customers. That before the time defendant left plaintiff’s employment, a part of the goods which were on hand, at the time of the dissolution, together with other goods subsequently purchased by plaintiff, had been sold to customers, and were marked for delivery, and that such sale had been made by defendant Totten himself, as a clerk of the plaintiff. That on or about the 31st day of Hay, 1852, without further notice to plaintiff, all the goods of said Johnson remaining unsold were withdrawn by said defendant Totten, from the store of the plaintiff, and a suit was commenced for the recovery of the whole indebtedness of the said firm to the said Johnson; and plaintiff avers that sucli suit was instituted at the instance of said defendant, and was prosecuted under his directions, although in form the suit was against said defendant Totten, as well as against the plaintiff in this suit. That the suit was commenced by attachment of all the goods in the store of the plaintiff, including those which had been sold after the dissolution, and which were ready for delivery to the purchasers, as before mentioned." That the said defendant Totten, came with the officer who had the process, and directed the seizure of the goods.</p> <p>“ That the plaintiff’s business was interfered with and greatly injured by this seizure of his property, and that although he obtained a release by giving bonds, yet the giving of security for so large an amount was an injury to his credit, and a large absorption of his means in procuring sureties.</p> <p>“ Plaintiff further saith, that at the same time the said Johnson, who' had thus by defendant Totten’s advice come to San Francisco, set up a store in the immediate neighborhood of plaintiff, which plaintiff believes and avers was done at the instance of defendant. That defendant publicly recommended to plaintiff’s customers to go to the other store, and advised those who had been in the habit of dealing with him, and of temporarily making deposits of money, to withdraw such deposits, stating that their funds were unsafe in his hands ; that he came daily in front of plaintiff’s store to seek his customers in order to make these statements; and plaintiff believes, and so avers the fact to be, that said defendant Totten, designed by this course of proceedings to ruin the plaintiff, and that the effect of it was that the plaintiff’s customers did withdraw their deposits, that his credit was injured, and his business declined.</p> <p>“Plaintiff further saith that judgment was eventually recovered by said Johnson against Totten & Kellogg, in the suit above mentioned, for the sum of about $16,000, and was paid by said Kellogg, to which said defendant Totten, contributed nothing, and, in fact, left San Francisco during the progress of the trial and before the recovery of said judgment, and came to this State, where he has since remained, and the plaintiff was compelled to bear the whole loss of the winding up and settling the concern under the circumstances herein specified.</p> <p>“ Plaintiff further saith that by the issuing of the attachment, and by the proceedings of the said defendant Totten, herein set forth, plaintiff’s credit was ruined, and he was compelled to settle immediately all outstanding accounts due by the firm, and to close up business relations with other concerns in the interior, and finally was broken up in his business, and that the assets of the firm were insufficient to pay its debts, so that the plaintiff incurred heavy loss.</p> <p>“ Plaintiff insists that the result was caused entirely by the conduct of said defendant Totten. That the agreement entered into at the time of the dissolution was violated by defendant Totten, and that he ought to pay all the damages caused thereby, or that the agreement for dissolution ought to be declared void, and the said defendant be adjudged to repay the $1,000 received by him, with interest, and to contribute to the payment of the debts of the late firm, which were paid by plaintiff after the agreement for dissolution.</p> <p>“Wherefore plaintiff prays judgment for damages caused by the acts of said defendant, to the amount of $30,000, or that the defendant repay the sum of $4,000, with interest from March, 1852, and his proportion of the debts of Totten & Kellogg paid by plaintiff, or still remaining unpaid, and of the expenses incurred by plaintiff in settling such indebtedness as shall be found due on a just accounting, and for that purpose, that an account be ordered according to the usual practice in the settlement of partnership business, and for such further or other relief as this court shall deem proper, together with the costs of this action.”</p> <p>When the cause came on for trial at circuit, the defendant’s counsel objected that it was an equity case, and could not be tried there. Thereupon the judge ordered the complaint to be amended by striking out the prayer for equitable relief, and after a trial a verdict was rendered for the plaintiff for $7,550.</p> <p>The other material facts appear'in the opinion.</p> <p>From the judgment entered on this verdict the defendant appealed.</p>

Irene Tim sued in this court Solomon Tim for a divorce a vinculo, on the ground of defendant’s adultery. The answer contained eight defenses, alleging that plaintiff was not defendant’s wife, and that he was never-married to her, and denied any act of adultery on his part. The fourth defense alleged that the plaintiff’s name-was not Irene Tim, but was Irene Ashton.

Daniel A. Sanborn sued Marshall Lefferts, Edward A. Eaton, and others, in the city court of Brooklyn, to -charge them, as individually liable for a debt of the Ventilating Rubber Shoe Company, a corporation formed under the general manufacturing, &c. corporations act of 1848, and the' amendments thereto.

This action was brought by Joanna Johnston against Robert John Johnston, her husband, to obtain a limited divorce. The plaintiff obtained a writ of ne exeat, which the judge who granted it subsequently set aside; and she now appealed to the court at general term.

Motion to confirm the report of commissioners appointed to acquire land for a public park. This was an application by the Board of Commissioners of the Central Park, in the name and on behalf of the mayor, aldermen, and commonalty of the city of New York, relative to the acquisition of lands for a public park or place between the southerly side of One-hundred-and-sixth-street and One-hundred-and-tenth-street, and Fifth and Eighth Avenues, in the city of New York.

Henry B. Barnes and others sued in this court Jacob H. Mott, Arnold H. Wagner, Clark C. Wilson,.

Patrick Martin applied to the court for a peremptory mandamus against Abraham L. Earle, the auditor, and Andrew H. Green, the comptroller, of the city of New York. The grounds of the application appear fully in the opinion.

This action was brought by George A. Fanshawe, David TVTilliken, and Wisner H. Townsend, against William G., Edward H., and Jessé C. Lane, Her Boyce, Joseph W. Parmelee, William F. Boardman, Leroy M. Wiley, and Frederick FT. Lawrence, to set aside an assignment made by the firm of “ Lanes, Boyce & Co.” The facts are sufficiently stated in the opinion.

Edward W. Davis, and others, brought an action in this court against the American society for the prevention of cruelty to animals, and Henry Bergh, for an injunction against making arrests under the circumstances which appear from the pleadings and opinion below.

Samuel Bonnell, Jr. and Eli W. Blake respectively brought two several actions in this court, against Geo.

This action was brought by Silas Boynton against John Boynton, before a justice of the peace in Washington county, to recover damages for taking and converting certain property, and for the use and occupation of a barn.

This was an application to the surrogate of Oswego county, by Matthias Pennick and others, for leave to issue execution upon a judgment recovered against Jerome B. Bentley, since deceased.*

William II. Hoag brought an action in this court against Charles A. Lamont, Calvin T. Hubbard, Hernán D. Walbridge, and William S. Andrews, trustees of the American and European Crystalized Egg Company, to charge them personally with a demand against said company, for the reason that no report was made by the company within twenty days-after January 1, 1871, as required by law. The following facts were proved.

The supervisors of Richmond county recovered at the Richmond circuit, in April, 1873, in a suit by them against John H. Van Clief, Sr., a verdict for four hundred and sixty-three dollars and ninety-nine cents, subject to the opinion of the court at general term, and the defendant’s exceptions were ordered to be heard at general term in the first instance.

This action was by Charles Kelsey against Robert M. Ward, Walter S. Gove, and Edward P. Morris, to recover $1,700, a year’s rent of premises in Brooklyn. The nature of the action and the questions involved are fully stated in the opinion. The defendants appealed.

Sarah F. Dauchy procured an order of arrest against Thomas S. Miller, in an action against him in this court.

Exceptions directed to be heard at general term in the first instance. This action was by Peter W. Hoagland against Jacob Miller and Isaac Shaurman, to recover $802.61. One Samuel Ford had executed a mortgage to one Hogan for $12,000; subsequently Hogan assigned to the present defendants an interest in the mortgage to the extent of $5,667, which sum defendants proposed to advance to Ford for the purpose of improving the property.

Mary F. Wade brought an action in the city court of Brooklyn, against Martin Kalbfleisch, for breach of promise of marriage. Pending suit, the defendant died. A motion on behalf of the plaintiff to revive the action against his executors, was denied at special term, the opinion of Neilsoh, Oh. J. thereat, being reported in 15 Abb. Pr., 16. The general term, on an appeal from the order denying the motion, affirmed the same, with costs, February 10, 1874.

In this action, which was brought by John Purchase against George F. Bellows, the defendant prevailed and had judgment for his costs, $606.42. After the return of an execution against property unsatisfied, the defendant issued an execution against the person, which on motion was set aside.

Motion to dismiss an appeal. This was an action for slander, brought by David White against Tempke H. Klinken. At the trial, the jury found a verdict for plaintiff for fifty dollars. The court allowed the defendant thirty days to make a case, and ordered that all plaintiff’s proceedings be stayed in the mean time, except that he be at liberty to enter judgment. Judgment was entered February 5,1863, and on the following day the plaintiff served notice of the entry of judgment.

The plaintiff was a hanking association formed under the general act of 1838, and brought this action against James M. Willard and George Curtiss, to charge them as indorsers of a promissory note. The answer set up usury, and also denied that the plaintiff was an incorporation under the act (which the allegations of the complaint had referred to), and denied that its corporate name was the Leonardsville Bank.

Elizabeth H. Spicer sued George Spicer to recover the sum of forty-one thousand dollars, claimed to be due her as dower in the lands of her deceased husband. It appeared that Elizabeth married one Miller, in. 1839. He subsequently deserted her; and after more than five years’ absence she, believing, as she testified, that he was dead, married John Spicer. An intermediate marriage it is not necessary to notice.

This action was brought by Thomas S. Nelson and James S. Sturges, trustees, against James Eaton, upon a note payable to the order of the Atlas Mutual Insurance Company, for §681.25.

This action was brought by Henry P. Degraff against Almon Hovey, to recover $1,500 damages for converting and disposing of personal property. The nature of the transactions out of which the claim arose was as follows. The defendant applied to Wentworth & Degraff, of which firm plaintiff was a member, to buy certain furniture.

This was a foreclosure-action brought by Thomas J. Morris against Andrew Crawford and seventeen other defendants. Part of the defendants had been served with the summons or had appeared, leaving others unserved, who had not appeared.William R. Stafford was appointed guardian ad litem for Maria E. and A. M. Stafford, infant defendants, and put in an answer not denying the allegations of the complaint, and submitting the rights of the infants to the court.

The action was brought by Thomas Lewis against Charles Graham, Andrew and Bobert McKenna, and others. The summons had been served on the defendants McKenna by publication, and deposit in the post-office. The irregularities complained of related to errors in publication, and defects in the affidavit of service.

Contested probate of a last will. The testator, Louis Bonard, devised and bequeathed his entire estate, amounting to about one hundred and fifty thousand dollars to The American Society for the Prevention of Cruelty to Animals, a corporation of this State (created by 1 Laws of 1866, ch. 469). The text of the will is stated at length in the opinion of the Surrogate.

<p>Statute of Limitations.—Sheriff’s Fees.—Account stated.</p> <p>A cause of action does not accrue within the meaning of the Statute of Limitations till the creditor has the right to demand present payment from his debtor.</p> <p>Thus, the time of limitation upon a claim by the plaintiff in foreclosure against the sheriff for money received on a sale of the mortgaged premises, does not begin to run until the sheriff’s deed is delivered, and the sale perfected.</p> <p>An agreement by a sheriff to accept less than the amount of his fees, if the person to whom they are charged will allow the amount thus reduced,—Held, to be without sufficient consideration.</p>

This action was brought by Eliza Ann Wilson against Orel J. Holden to recover damages for the non-performance of a certain contract, whereby he agreed to purchase a lot of land situate on the corner of Seventh Avenue and Forty-fifth-street, in the city of New York.

<p>Appeal from a judgment.</p> <p>This action was brought by Robert H. Kerr and John P. Morgan against William T. Blodgett and Orlando Meads. The plaintiffs were judgment-creditors of one John Meads, Jr., of whom the present defendants were assignees. The relief asked was accounting and the payment of plaintiffs’judgment. A similar action in favor of James B. Wilson was heard at the same time. The claims were against a limited partnership, of which John Meads, Jr., was the general partner, and one William Tilden was the special partner. The complaint set forth that the assets had all been distributed among the creditors of John Meads, Jr., under and in pursuance of a judgment for that purpose, obtained by Dexter Reynolds against them. That on the distribution each creditor represented received a little over 61 per cent. That Dexter Reynolds bought up the claim of one of the creditors, and with it commenced a suit in the Supreme Court, Albany county, against the assignees, averring he was a creditor of the limited partnership, and claiming an accounting and settling of the trust-fund. That this suit was collusive in its nature, and instituted with a view to have a distribution in defiance of the rights of the plaintiffs and of some other creditors who refused to sell their respective claims at a sacrifice. That the present defendants, who were defendants in that suit, voluntarily appeared and admitted service of the suit. That they interposed no defence, and did not set up or assert the rights of their cesf/wís que trusty the creditors of John Meads, Jr. That the defendants, by their agent, John Meads, Jr., and other agents, while the proceedings were pending, were in frequent communication with the plaintiffs, endeavoring to purchase the plaintiffs’ claim at a lower price than its said value under said assignment. That the plaintiffs refused at all times to sell their said claim at the prices offered, believing that the same was worth more under the assignment, and were waiting, patiently, the maturity of the Meacham notes for distribution. That shortly after the mating of the assignment, and as soon as some portion of the trust-funds of said assignment were collected and in the hands of the assignees, John Meads, Jr., and others, acting on his behalf and on the behalf of the said defendants, or said Tilden, or of all of said parties, endeavored to and did purchase, from time to time, various claims against the assigned estate, from the creditors of the firm of John Meads, Jr. That false and fraudulent statements were made to said creditors as to the value of the assigned estate, and the probable time of distribution, to induce them to sell the same at a great deal less than their real value. That many of the claims purchased, were purchased at thirty and forty per cent, on the dollar, when the same were worth, under the assignment, sixty per eent., and so known to the defendants to be worth that sum.</p> <p>That in the month of June, 1859, almost all of the claims against the assigned estate had been, by said parties, purchased at the time of the commencement of said proceedings.</p> <p>That according as said claims were purchased, the same were assigned to John Meads, Sen’r, and Charlotte Meads, and one to the said Dexter Reynolds, who were represented as the parties purchasing the same, and stated as the parties advancing and paying the same.</p> <p>But, that said purchases of said claims were made, from time to time, in reality, for the benefit of the said limited co-partnership of John Meads, Jr., and the said defendants, and the said Tilden, and were paid for out of the trust-funds of said assignment; that such defendants, from time to time, furnished from the collections of the assigned estate, funds, although nominally loaning said moneys to said John Meads, Sen’r, and William Tilden & Nephew.</p> <p>That at the time of the commencing of said proceedings, nearly all of said claims against said estate had been purchased, and were nominally assigned to John Meads, Sen’r, and the said Charlotte Meads, but really were the property of the partners aforesaid.</p> <p>That at the time of the distribution under said proceedings, all of the claims against the assigned estate were nominally the property of John Meads, Sen’i, or his estate, and of the said Charlotte Meads, excepting a few hundred dollars, including the. claim of the plaintiffs, and the same had been purchased in manner aforesaid, at a price far less than their value, and that realized on said pretended distribution. That distribution was made in such proceedings of a little over 61 per cent., to these creditors who were thus represented. That all of the proceedings were conducted in a referee’s office in Albany.</p> <p>As soon as the plaintiffs ascertained the facts of the case, they brought these actions against the assignees, and claimed their dividend under the assignment; and in anticipation of the possible defence under that judgment of distribution, they set up the whole facts of the case, charged the collusive nature of that judgment, the breach of trust by the assignees, and prayed that it might be adjudged to be no protection to them.</p> <p>, The complaints contained another prayer for other general relief, and claimed that the plaintiffs be paid the whole of their judgments and interest. ♦</p> <p>The causes came on for trial before Hr. Justice Allen, who refused to permit the plaintiffs to try their cases, saying he took their facts, as averred in. the complaints, to be true, and dismissed the complaints. The plaintiffs appealed.</p>

This. action was by Caleb H. Potter against Demetrius M. Chadsey, James E. Craig, and James H. Leeds, upon a promissory note of $3,000, made by Chadsey, and indorsed by Craig and Leeds separately.

Motion to vacate an injunction. This was an action of interpleader brought by the United States and John J. Cisco against Theodore Vietor and George E. Duckwitz, and the State of Texas. The injunction restrained Vietor and Duckwitz from proceeding in an action which they had brought in this court in the second district against Cisco, for damages for seizing and withholding certain negotiable bonds of the United States, known as Texas Indemnity Bonds.

Examination of adverse party before trial, and motion to punish for contempt. This action was by William S. Woods and John D. Williams against Louis F. De Figaniere, President of the Pioneer Iron Furnace Company, a joint-stock company, consisting of more than seven shareholders or associates, to recover $953.91 for goods sold and delivered, and other causes of action arising upon contract. The plaintiffs procured an order for the examination of the defendant before trial.

This action was brought by Henry 0. Fox against Henry Heath, Eobert D. Wynkoop, Eobert D. Wynkoop, Jr., and Gustavus A. Eollins, to set aside an assignment. The defendants, Heath and Wynkoops, doing business in the city of New York, under the firm-name of Heath, Wynkoop & Co., on the 23d day of May, 1861, made a general assignment to the defendant, Eollins, of all their property, in trust, for the benefit of their creditors, each executing the deed of assignment.

The writ was addressed to the Mayor, Aldermen, and Commonalty of the city of New York, to review the proceedings relative to an assessment for regulating and grading Eightieth Street, between the Fifth Avenue and the East River, in the city of New York. The street-commissioner advertised for proposals for the work, estimating it at 20,000 yards of rock excavation, and 8,000 yards of earth excavation.

This action was brought by Joseph H.'Williams and Angeline M. his wife, against Bridget, Mary, Ann T., and Joseph A. Hernon, William 0. Barrett, and Thomas White, for the partition of a lot of land in Eighteenth Street, in the city of New York. The Hernons defended; issue was joined December 6, 1859. The cause was tried before Philo T. Euggles, referee.

This action was by Henry A. Burr and William H. Riblet, assignees of George Colyer and Thomas Dugard, against James Bigler for certain equitable relief, and to remove a cloud on plaintiffs’ title to a tract of land, and to certain water-rights in the neighborhood of Eleventh Avenue and Twenty-seventh Street, Hew York city.

<p>Application by a trustee, appointed in foreign insolvency proceedings, to have an injunction which had been granted against the insolvent modified.</p> <p>An action was pending in this court between Gorham D. Abbot, plaintiff, and the American Hard Rubber Company, and various of its directors and others. An injunction had been obtained in that action restraining the payment of several notes made by Poppenhusen & Konig, in favor of the American Hard Rubber Company. At the date of the present application, the sum due was $27,000. The action was commenced February 29, 1860. On the 9th day of November, 1860, William B. Bristol, the present petitioner, was by a decree of the Court of Probate of Bethany, Connecticut, appointed trustee of the American Hard Rubber Company, in certain proceedings in insolvency, and entered upon the execution of his. trust. In June, 1861, a decree was entered in the injunction-suit in this court. The decree made no provision either for the further continuance of the injunction or for its being vacated. Bristol now applied to the court on petition to have the injunction modified so as to allow the payment of the notes of Poppenhusen & Konig.</p>

This action w;as brought by Eras tus Plato against John Kelly, sheriff, and Bernard Reilly, to contest a levy Upon certain property under an execution against Kelson Plato. An order for the examination of the plaintiff as a witness was made under section 391 of the Code, under which the examination of the plaintiff as a witness was commenced on March 21,1861, and continued on various days till May 29, 1862.

This was a proceeding under the Mechanics’ Lien Law, instituted by James Webb against Wynant Van Zandt, to enforce the builder’s lien for the erection of a house, under a contract by which the plaintiff was to have been paid in three several instalments—two at different stages of the work, the third on the completion of the house; the lien claimed, also, to include a demand for the value of certain extra work.

Demurrer to the complaint. The Eire Department of the city of New York brought this action against Richard Williamson to recover a penalty for an alleged violation by him of the Laws of 1862, 574, ch. 356.

This action was Drought in the Sixth District Court by William H. Jackson and another against Charles Smith. The plaintiffs had judgment, from which the defendant appealed to this court, and gave the undertaking required by sections 354 and 356 of the Code of Procedure, which was approved by the district justice and filed with the clerk of the Court of Common Pleas. After the filing of the undertaking, the plaintiffs issued execution upon the judgment.

This action was brought by Elias Watson against William 0. Barker, to recover $3,700. The facts are sufficiently stated in the opinion. The plaintiff had judgment, and the defendant appealed.

This action was originally brought by Obadiah Newcomb, in September, 1849, against Eugene Keteltas, as trustee of the estate of John Gardner, deceased, against Malvina Keteltas, Jules de Dion, and Jane his wife, as the cesiuis que trmt under the will of John Gardner, and against Orlando D. McLain and Stephen Palmer, executors of John Hyer, deceased. Newcomb died in 185Y, and Henry G. Dunnell and others, his executors, were substituted as plaintiffs in the action.

Simpson Tolan brought an action in this court against Frant Conover and another, based on the following state of facts. The plaintiff sold a stock of goods and fixtures to the defendants. An inventory was made, with prices attached. In footing a number of long columns of figures, there was an error of one thousand and twenty dollars against the plaintiff, and in favor of the defendants, by one of whom (Conover) the footing was made.

James O’Brien, sheriff of the city and county of New York, brought four actions in this court against The Merchants’ Insurance Company, The Commercial Fire Insurance Company, The Williamsburgh City Fire Insurance Company, and The Mechanics’ & Traders’ Insurance Company, respectively, to collect the amounts of four policies of insurance, of two thousand five hundred dollars each, by virtue of seven warrants of attachments, amounting to about seven thousand dollars, against…

In May, 1871, Frances M. W. Dunworth, being then an infant over fourteen years of age, applied to this •court for the appointment of her father, Wilfred Dun-worth, as her general guardian, and he was accordingly duly appointed guardian of her person and estate. Recently, the guardian, for causes assigned, has been relieved of his trust.

Judgment was recovered in this action by Daniel Darrow against William P. Lee for $201. An execution was issued, and an order made, under section 294 of the Code of Procedure, directed to the Bank of North America. By the examination of the cashier of the bank, it appeared that there was a deposit in that bank to the credit of the defendant, amounting to $2,480.

This action was brought by John B. Ireland, as receiver, against Samuel B. Potter, Archibald A. Thomas, and Frederick F. Betts.

This was an application for a peremptory mandamus to compel the respondent, William F. Havemeyer, as mayor of the city of New York, to countersign a warrant drawn by the comptroller of the city.

This action was brought by James R. Wolfkiel against Sidney Mason and T. Bailey Myers, upon an undertaking given to stay proceedings pending an appeal to the general term, taken by the Sixth Avenue Railroad Company from a judgment, in another action, in favor of the present plaintiff. This judgment was affirmed; and the present action was brought on the 7th April, 1862.

This was an action by Henry G. Rice and William H. Stewart against Augustus Whitlock, upon an agreement or undertaking, which recited that a judgment had been recovered in the Hew York Common Pleas against one R. H. Isham for $3,994.73, from which Isham had taken an appeal, but without giving security to stay proceedings; that supplementary proceedings were pending against Isham, and an attachment had been issued against certain property of his in Connecticut: the present…

Henry D. Stover, appointed receiver of The Ocean National Bank, by the comptroller of the currency, under the act of congress of June 3rd, 1864, establish ing the national banks, and the acts amendatory thereof, received, as part of the assets of the bank, several promissory notes made by M. P. Wood, and indorsed by H. D. Stover, against both of whom this action was brought, on the notes, for the sum of nine hundred and ninety-two dollars and one cent.

The plaintiff was the owner, on November 1, 1866, of one hundred shares of stock in the joint stock company known by the name of Wells, Fargo & Company. The par value of the stock on that day was one hundred dollars per share, and its actual value in market was two hundred and eighty-five dollars per share.

<p>Appeal from a judgment.</p> <p>This action was brought by John W. Kelsey and nine others against Jonathan Beers and William Morrison, upon the statutory bond given to procure the release of the bark Manhattan, previously known as the Vittorioso, which had been seized in November, 1858, under the title of the Revised Statutes entitled : “ Of proceedings for the collection of demands against ships and vessels.” On the 17th day of April, 1858, the firm of John Thursby’s Sons libelled the bark, for supplies, in the District Court of the United States for the Southern District of BTew York, whereupon she was on the same day seized by the United States marshal, upon due process, and the usual proceedings in admiralty were thereafter had, and the vessel was sold by the marshal on the 5th day of June, 1858, to one Isaac Jennings, and the money paid into court. The sheriff of Kings county, by virtue of an attachment issued on April 12th, 1858, in a suit against one King Burns, attached'the vessel some time in April; and subsequently, but prior to the sale of the vessel by the marshal, by virtue of an execution against the property of King Burns, sold all Ms right, title, and interest to and in the bark, subject, however, to the claim and seizure of the marshal, whose representative protested on the spot against the interference of, and sale by the sheriff. The plaintiffs were present at the sheriff’s sale of the vessel, and had personal notice of the seizure of the same by the marshal. During the winter and spring of 1858, plaintiffs did work and furnished materials for the vessel, at the request of the owner. Such work and materials were so done and furnished by plaintiffs prior to the sale of the vessel by the marshal, except a portion of plaintiff Kelsey’s claim, which defendants admitted to have accrued after the sale, and offered to pay.</p> <p>The defendants, in answering, denied that the plaintiffs’ claims or any of them (save the aforesaid portion of Kelsey’s claim) were, or ever were, liens upon the vessel under the statute, and claimed that the plaintiffs were effectually barred and precluded from having or enforcing their supposed claims, admitting, however, the portion of Kelsey’s claim aforesaid. The action was referred to Charles W. Newton, Esq., to hear and determine, who, after the hearing, reported in favor of plaintiffs, to which defendants excepted, and took this appeal.</p>

Application, under the Fourteen Day Act, to be discharged from imprisonment. The petitioner, Gilbert B. Comstock, was upon the limits, having given bail when taken in custody under an execution against the person, issued upon a judgment recovered against him by Amelia»G. Bylandt for $500 and costs. Comstock now petitioned for his discharge under 2 Rev. Stat., 81.

William Arthur brought this action in this court against John A. Griswold, and others, as trustees of The Iron Mountains Company, of Lake Champlain, for alleged fraud in inducing plaintiff to make loans, amounting to the sum of forty-five thousand dollars, to said company, as well as on their liability as such trustees, for filing a false report, &c. After a trial and judgment in favor of the plaintiff, . the defendant, John A. Griswold, died, pending an appeal, and his…

This action was brought by John H. Foland against Edward Johnson and Robert Squires, to recover $500 damages for assault and battery and false imprisonment. The facts and pleadings are set forth in the opinion. The plaintiff demurred to the answers of the defendants ; the demurrer was sustained, and defendants- appealed.

Margaret Carroll brought this action in May, 1873, in this court, for admeasurement of dower, claimed by her as the widow of John Carroll. Elizabeth Carroll, a defendant, claimed that she was John Carroll’s wife at the time of his death, and that several infants, also defendants, were their children. To the said Elizabeth and her children, John Carroll had devised his real estate, by a will proved before the surrogate of Kings county, February 13th, 1873.

. The defendants, Edwin Smith and Charlotte A. Smith, confessed a judgment in favor of Abraham Knickerbacker, in August, 1858, for $1,000, and costs. The present appeal was taken by the defendant Charlotte from an order of Mr. Justice Beckham, made in November, 1862, refusing to set aside this-j udgment as irregular and void against the female defendant..

The defendant, George Lamoree, received, as sheriff of Dutchess, October 30, 1867, an execution in favor of J. Frank Phillips against Henry W. Wheeler and two others, partners, for three thousand one hundred and forty-one T258¥ dollars on a judgment recovered in the first judicial district, New York.

<p>Appeal from an order denying a motion to vacate an injunction.</p> <p>This action was brought by Cordelia Mattice against Aaron Gifford, Addison H. Hays, and William Hotchkiss. The facts are sufficiently stated in the opinion.</p>

John Flanders and R. McK. Ormsby, brought this •action in this court against Moses Odell, to recover on an account for - services rendered by them as attorneys and counsel, said account exhibiting seventeen items of charge on the debit side and one item on the credit side thereof, and showing a balance of eleven hundred and twenty-six dollars and thirty-five cents due.

This action was brought by Charles Elmore, as receiver of Johnson and other judgment-debtors, against Henry Vallette, to set aside the transfer to Vallette by Johnson of $20,000 in bills receivable belonging to the judgment-debtors, transferred as collateral to an individual indebtedness of Johnson. The defendant demurred to the complaint, specifying among other grounds of objection that there was a defect of parties defendant.

<p>Parties.—Demurrer.—Appearance. —Foreign Corporation.—Service.—Cause oe Action. —Railroad Companies.</p> <p>A defendant, by demurring solely on the ground that the court has no-jurisdiction of the person, and by putting in a qualified appearance for that purpose alone, does not confer jurisdiction.*</p> <p>A demurrer assigning as its ground that the court has no jurisdiction of the person of the defendant, does not raise any question as to the regularity of the proceedings by which service of process has been made; but only the question whether the defendant is such a perSon as can be subjected by process to the jurisdiction of the court.</p> <p>In an action by a resident of this State, against a foreign corporation, the court can not acquire jurisdiction of its person, or legally render a personal judgment against it, unless the corporation elects voluntarily to appear.*</p> <p>Individuals sued in their capacity of trustees appointed by a court of another State, over an insolvent corporation of such State, and for acts done as such trustees, stand upon the same footing, in this respect, as a foreign corporation. The court can not gain jurisdiction of the persons of any of such a board of trustees, bj' the personal service of process within this State.</p> <p>In general, a corporation can not maintain an action seeking to have its own contract, voluntarily entered into, canceled, merely because ultra vires.</p> <p>The superintendent of a railroad company, in possession of the road under a corporation or trustees for creditors, is not a proper party to an action to recover possession of the road.</p> <p>A contract by a New York railroad company, giving the possession and control of its road to a foreign connecting railroad company,— Reid, authorized by the acts of 1839 and 1869 as to connecting ■ roads, and not void as against public policy.</p>

This action was brought by John Brodsky against Anton Ihms. The nature of the action, and facts which appeared upon the motion, are fully stated in the opinion of the court.

This action was brought by William Harris against States H. Head, John Beal, and others, to recover for $150.13, for work, labor, and materials. The items set forth in plaintiff’s bill of particulars were of one date, and as follows: u “To plumbing work in store Ho. 30Pearl St., as per contract, ......$80.00 Harble top to wash basin, extra, . . 10.00 Extra Work.

This was an action brought by Dexter Washburne and another against Dewitt 0. Langley and another. The defendant Langley was served with the summons and complaint on September 1st, 1862.- The other defendant had not been served. In due time, Langley appeared by Lucien Birdseye, Esq., as his attorney. On September 23d, 1862, Langley’s attorney obtained from Hr.

This was an action by Douglass McCotter against Alexander McCotter, Alfred E. Beach, and the Mayor, &c., of ¡New York, to restrain the defendants McCotter and Beach from receiving certain money from the city of Mew York.

<p>Contempt.—Grand Jury.—Attorney-General. —Delegation oe Power.—Deputy.</p> <p>At common law it was a contempt of court for a witness or bystander to communicate with the grand jury touching a complaint under examination before them, without their request.</p> <p>To constitute such communication a contempt under the New York statute relative to criminal contempts (3 Rev. Stat. 378, § 10), the manner of making it must involve some contemptuous behavior committed during the sitting of the court, and at least tending to impair the respect due to it.</p> <p>It seems that the word “ behavior ” in 3 JSev. Stat. 378, § 10, subd. 1, providing for the punishment of disorderly, contemptuous and insolent behavior committed during the sitting of a court of record, may embrace the delivery to the grand jury of an aspersive letter from an unofficial person; for the grand-jury room is an extension of the court-room, and its session is a part of the session of the court.</p> <p>But where the president of the American Society for the Prevention of Cruelty to Animals, while holding written appointments from the Attorney-General of the state and the District-Attorney of the county, authorizing him to act as deputy of each of those officers in prosecuting complaints within the cognizance of the society, addressed a letter signed by him as president of the society and under its seal, to the grand jury, reviewing and expostulating against a recent decision by them, ignoring a bill founded on a •complaint for promoting a dog-fight which had been preferred by an agent of the society,—Reid, that such letter ought not to be construed as designed to interrupt the administration of justice, but rather as having been sent in an honest endeavor to discharge official duty; and that, so construed, it could not be deemed a contempt.</p> <p>The powers of the Attorney-General of the state of New York, and his authority to appoint a deputy, discussed in argument.</p>

• Appeal from an order refusing leave to put in a supplemental answer. This action was brought by John B. Morel against Garelly, Baare, and Geer, to recover a debt contracted in France. After answer, defendants were discharged by bankruptcy proceedings in France, which discharge they moved to set up by supplemental answer.

<p>Examination of Witness before Trial.*—Order to Appear not an Order to show Cause.—Motions, where made.— Filing Dep®sition nunc pro tunc.—New Promise by Infant on coming of Age.</p> <p>An order, requiring the adverse party to appear before the 'officer and attend the examination of a witness, is an order made out of court, and without notice, and the Code of Procedure authorizes such an order to be made by any judge of the court; in any part of the State.</p> <p>It cannot be regarded as merely an order to show cause why the deposition should not be taken, and hence equivalent to a motion on notice, and therefore not proper to be made in the first district in an action triable elsewhere.</p> <p>It may be otherwise of an order, under the Laws of 1851, ch. 472, to show cause why the testimony should not be taken by a referee, to be appointed by a judge.</p> <p>The neglect of a party, at whose instance testimony is taken conditionally, to file the original deposition within ten days, as required by 2 Rev. Stat., 393, may be cured by granting him leave to file it nunc pro tunc.</p> <p>An explicit acknowledgment, after coming of age, of a debt contracted in infancy, is not equivalent to a new promise, though it may be evidence from which the jury may infer a new promise.</p>

The prisoner, Louisa Nash, had been arrested and committed on a charge of larceny; and on habeas corpus issued by the city judge, she had been discharged by that magistrate from imprisonment.

This action was brought by William H. Anable against the Forest & Agricultural Steam-engine Company^ Henry R. Conklin, Abraham Inslee, Stephen B. Conklin, and David Harrisson, to recover upon a promissory note alleged to have been made by the company who were defendants, and to have been indorsed by the individual defendants.

This action was brought to recover dower. Plaintiff was married to Charles Kade in the year 1857. The marriage was dissolved by judgment in an action brought by the plaintiff herein against her husband. The divorce was a vinculo matrimonii. The lands, out of which the plaintiff claims to be endowed, were acquired by her former husband in 1868, and after the parties had been divorced. In 1869, Kade ;so!d and conveyed the land to the defendant, who is ■still the owner.

This action was brought against Alexander Caselli, Louis' Emile Lahens, and others, by Thomas Fielden, and others, as judgment-creditors of the defendant Caselli, to set aside certain alleged fraudulent assignments, and to compel an accounting. Three defences were interposed by the defendant Lahens, to the second of which the plaintiffs demurred.

William P. Morgan brought this action for an absolute divorce from his wife Caroline L. Morgan, on the ground of her alleged adultery. The action was referred to a referee.

<p>Offer to allow Judgment.</p> <p>In an action against several defendants, an offer to allow judgment, under section 385 of the Code, in order to preclude the plaintiff from recovering costs if he fails to obtain a more favorable judgment than contained in such offer, must be expressly an offer on behalf of all the defendants, or, at least, on behalf of-all as to whom the cause is in a situation to perfect judgment.* *</p> <p>A judgment against all joint-debtors must be deemed more favorable than a judgment for the same amount against a part of them only.</p> <p>It seems, that the offer in any case would be insufficient if it involved the necessity of severing the action.</p>

This action was brought by August De Weerth, Jr., against Albert Feldner, to recover the amount of a debt alleged to have been fraudulently contracted. The parties were residents of Prussia, and the debt was contracted there. An order of arrest was issued, on the ground that the defendant had been guilty of a fraud in contracting the debt for which the action was brought.

<p>Fobm of tax.—Village oobpobation.</p> <p>A village corporation can not by combining several unconnected objects in the pian oí a building vote a single and. entire tax for the-purpose.</p> <p>Thus a village corporation, being authorized by a special statute to-lay a tax for building an engine-house, and by another statute to lay a tax for building a council chamber and police station, both taxes-to be laid in the manner prescribed in the general village corporation act, can not combine the objects, and give notice and take the vote on the proposal to tax for an entire sum.</p>

This aption was brought by August Haupt against Hermann F. Pohlmann, to recover $10,00(Mamages for malicious prosecution and imprisonment. The complaint alleged a malicious prosecution of the plaintiff by the defendant, in charging him with grand larceny and embezzlement; the arrest, examination, and commitment, and the discharge of the plaintiff, the grand jury having refused to return a true bill.

James H. Moran and Marcus L. Cobb, as assignees-in bankruptcy of Matthew D. Bogert, brought this-action in this court against Catharine Bogert, to recover the balance due on the price of certain horses, &c., sold March 8, 1871, to defendant by plaintiffs, and for interest on such balance.

Alfred H. Willmont, a non-resident, brought this action in this court against Cornelius M. Meserole and others. The defendant named obtained an order requiring the plaintiff to file security for costs in the sum of five hundred dollars. Within the time limited by the order, the plaintiff caused a bond to be executed by N. McG-regor Steele as surety, which was conditioned that said Steele would pay all costs which might be awarded to the defendant in the action.

This action was brought by Henry Solms against Laurent Lias, to recover damages for injury to the plaintiff’s land in Clinton Street, Hew York, by the inflowing from a privy located on the defendant’s land adjoining. The circumstances of the trial are sufficiently stated in the opinion. Th'e plaintiff had judgment, and defendant appealed.

Charles Hedges, Henry Drisler, Jr., and Samuel Furman, on the one part, and George W. Bungay, Jr., as assignee for the benefit of Eleazer P. Bowen’s creditors,, on the other part, agreed to submit the question in difference between them, which might have been the subject of a civil action, to the court at general term, under section 372 of the code of procedure.

This action was brought by Charles Devlin against Thomas and Anthony S. Hope, Donaldson, and others. One HacMey had entered into a contract with the city of New York to clean the streets for a term of years for a specified compensation. Subsequently, HacMey, to obtain funds sufficient to enable him to perform his contract, had assigned various interests in the profits of the contract,—among others, the present plaintiff was entitled to one-eighth of such profits.

Maria J. Cornell, the wife of Mark Cornell, owned a farm in Westchester county, subject to a mortgage for three thousand dollars. Mark Cornell procured from the defendants Jayne and M'ercer the sum of five hundred dollars, for the alleged purpose of stopping the foreclosure of the mortgage. He, however, attended the sale thereunder, and bought the property, and assigned his contract of purchase to one Hopper, to whom the conveyance was made.

Motion to set aside an order of arrest. This action was brought by Annie Mclvor against John EL McCabe, to recover damages for injuries to the person of plaintiff. The alleged injuries were inflicted at Jersey City, in the State of New Jersey, where both the parties resided. The defendant had a place of business in the city of New York, where he was served with the summons. An order of arrest was issued, which the defendant now moved to set aside.

<p>Usury.—Mortgage.—Mechanics’ Lien.</p> <p>The purchasers at the foreclosure sale under a mechanics’ lien, which attached subsequently to the record of a mortgage of the same estate, may set up as a defense in a suit for the foreclosure of the mortgage, usury in the transaction on which the mortgage is founded.</p> <p>The practice on proving bond and mortgage discussed by counsel, citing cases.</p> <p>The powers of life insurance companies to make loans considered by counsel, citing the authorities.</p>

<p>Appeal from, an order sustaining a demurrer to the complaint.</p> <p>This action was brought by George W. Ooster against Mary Ann Isaacs, to recover the sum of $400, as rent of a store in Rew York city, to be collected out of the separate estate of the defendant, a married woman. The allegations of the complaint, omitting the averments of the lease, entry, and occupation, and non-payment of rent, were as follows: “That on and prior to the 26th day of February, 1861, the defendant, Mary Ann Isaacs, was, and she has ever since been, a married woman, being the wife of one Lyon Isaacs, of the city of New York; and that she was, at the date aforesaid, the legal owner of a separate property; consisting in part .of a freehold estate in certain lands in the county of Kings, and in the county of Schoharie, in the State of New York, acquired and held by her under and in pursuance of the laws of the State of New York, in respect to the separate estates of married women; and that the said Mary Ann Isaacs, at and prior to the date aforesaid, was engaged in carrying on a millinery business in the city of New York, in her individual name, pursuant to the laws in such case made and provided; and, upon making application for the premises hereinafter described, represented herself to be a married woman, and that /her husband had been unfortunate in business, and was unable to do any thing himself, and that she carried on the millinery business in her own name, and upon her sole and separate account, and wanted the premises for such business; that the said defendant is possessed of a sole and separate property, and is the lawful owner of the real estate hereinbefore mentioned, and holds the same °as her sole and separate estate.”</p> <p>To this complaint the defendant demurred. The demurrer was sustained at special term, before Mr. Justice Monerief, and plaintiff appealed.</p>

In this case, the defendant demurred ito the complaint, and the plaintiff moved at special term for judgment upon the demurrer as frivolous.

Abram Smith, as executor of Edward Smith who died in March, 1867, brought this appeal from a decree of the surrogate of Rockland county, and made Jane Christopher and Enos Smith, who were legatees under Edward Smith’s will, respondents.

I. Ma/rch, 1863.—Common-law certiorari. The writ was obtained by Stephen t. Cook, the relator, against the Board of Police of the Metropolitan Police District. The facts are fully stated in the opinion. The writ was returnable at special term. n. September, 1863.—Appeal from the above judgment. From the decision of Mr. Justice Peckham, the Board of Police appealed to the general term.

<p>Appeal from a judgment.</p> <p>This was an action brought by Olara A. Davenport against Elisha Ruckman, and the mayor, aldermen, and commonalty ■of the city of New York, to recover damages for injuries sustained by the plaintiff in falling into an excavation made in the sidewalk_of a public avenue in the city of New York, and not sufficiently guarded, in front of a building on such avenue, of which the defendant Buckman had a lease.</p> <p>The excavation in question was an area or cellar-way below the level of the pavement, extending on the sidewalk six feet in front of the line or side of the street, with descending steps to a cellar-way in the front wall of the building. It was not covered or railed in at the time of the accident, and had been in the same condition for some time previous. It had been once inclosed by wooden doors, and at another time by an iron railing, which had long previously been removed.</p> <p>The defendant Buckman did not make the excavation, but was the assignee of a lease for twenty-five years of the premises behind it, into which the steps in it led, and by such lease owner of the buildings to be erected during the term. They were occupied at the time of the accident by a tenant of his (Lamb), with whom he agreed to put the premises in repair. The defendant Buckman never repaired the premises, was frequently there to collect, his rents, and paid his own.</p> <p>The plaintiff’s organs of sight at the time of the accident were affected by disease, so as to diminish her power of vision considerably; yet she could distinguish persons and colors and objects having a distinct outline. Just previous to the accident she had encountered other risks of accident from defective vision.</p> <p>A verdict having been rendered for the plaintiff, with damages, various exceptions taken on the trial were ordered to be heard first at general term.</p> <p>One exception was taken to a refusal to dismiss the complaint, and others to instructions to the jury and refusals to charge as requested.</p> <p>The counsel for the defendants, the Corporation of the city of JSTew York, requested the court, among other things, to charge in substance in reference to their duty as follows:—</p> <p>First. They were not bound to see that such an opening as that into which the plaintiff fell was closed in the daytime.</p> <p>Second. They were not bound to see that the streets were in such a condition as to be safe for a blind person to pass without a guide.</p> <p>Third. They were not liable -unless the opening into which the plaintiff fell was of such a character as to have been dangerous to persons in possession of their sight, and exercising ordinary care.</p> <p>And in reference to the conduct and negligence of the plaintiff:—</p> <p>First. She was bound to use more than ordinary care in passing along the sidewalk.</p> <p>Second. It was negligence for her to walk upon the sidewalk without a guide, if she was unable to determine for herself whether it was free from obstructions or excavations.</p> <p>The counsel for the defendant Ruckman requested the court to charge the jury, in substance, among other things in reference to his liability for the injury to the plaintiff: 1, That he was not in possession of the premises at the time, but his tenant Lamb was, who had been so for six days before the date-of the lease to him, and was bound by his lease to keep the premises in repair; 2, That Lovett or Mitchell owned them in fee; and 3, That the defendant knew nothing of the removal of a railing adjoining the excavation in question, and was prevented from repairing by Lamb. And, also, in reference to the condition of the excavation, that the plaintiff could not recover, unless a person, with ordinary vision, using ordinary care and prudence, passing along the sidewalk in broad daylight, would be unsafe, or liable to be injured from the unsafe condition of the area; and, lastly, that the plaintiff was guilty of negligence in going into a public street in her condition.</p> <p>The court instructed the jury as to the duty of the Corporation in reference to excavations of this kind, that it was “ their duty to see that places of that description were kept in a safe condition;” there was in the ordinance passed by them “ an implied permission to construct thezn in the manner pz’escidbed,” and when made with such permission they are “ responsible for injuries necessarily resulting from them.” It is their duty to see that such places are maintained in a proper and safe condition, and in reference to their being chargeable with notice of the “ dangerous condition of any such opening;” that “ if it had been a recent occurrence.....an express notice of some kind” to them would be required, but where the dangerous condition of the street or sidewalk has continued for a long space of time such express notice is not necessary. They may be reasonably presumed to have become acquainted with the condition of the street in this particular. They have ample means and every facility secured to them for fulfilling their duties, and seeing that all dangerous places in the public streets are properly guarded; they are bound to fulfil that duty, and if they neglect it are to be held responsible.</p> <p>In reference to the plaintiff’s negligence in going into the streets unattended in the actual condition of her organs of sight, the court charged the jury “ that the circumstance that she was partially blind, and fell into the opening in the daylight,” was not “ of any importance” (to which the defendants’ counsel excepted). The question was, “ whether it was so improper and imprudent for the plaintiff to have gone into the street unattended in her then condition of sight, that it would be negligence on her part to do so.” But if she “ possessed sufficient sight to give her reasonable assurance that she might travel the streets safely while they were in good and proper condition, in the condition in which the defendants were bound to maintain them, she would not be guilty of negligence in going abroad unattended.” The assumption in law must be that the streets are in good condition, and the question to be determined by the jury was, “Had the plaintiff sight enough to go with reasonable assurance of safety through the streets” if they were kept in good condition. To these instructions the defendants’ counsel excepted.</p> <p>The court instructed the jury, also, that the defendant Ruck-man was to be considered the owner of the house, and it was “ his duty to provide proper guards for the opening, and see. that it was safely kept;” also, to “ have it in a safe condition at the time the house passed from him to his tenant;” and “ he was responsible whether allowed to put it in repair afterwards or not,” if the premises “ were in a bad, unsafe condition before he gave it to his tenant, and placed the property out of his control negligently or carelessly.” To these instructions the defendant Ruckman’s counsel excepted.</p>

The defense was that one of the sums, two thousand seven hundred and fifty dollars, was never received; that the sum of two thousand three hundred and fifty dollars was but two thousand dollars, and this two thousand dollars and the other two sums were returned to the plaintiff before this action was commenced. The answer also contains five counter-claims against the plaintiff.

Appeal by defendant from a judgment of a court of a justice of the peace.

This action was brought by Charles N. Baldwin, upon a judgment recovered in this court, in 1849, by Joshua P. Humphreys and another, against the defendants, Elizabeth C. Kimmel and Alexander F. Kimmel, for $169.45.

The proceedings by which the judgment appealed from was recovered appear fully in the report of the case in the common pleas (16 Abb. Pr. IV. S., 397).

This action was brought by Thomas and Samuel Barbour against Gilbert F. Everson and another, to set aside a general assignment, executed since the passage of the act of 1860, on the ground that no inventory had been made as required by that act, and that the assignee had not given security. The plaintiff now moved for an injunction and the appointment of a receiver.

This action was brought by Robert G. Rankin against Gustavus A. Sacchi, impleaded with Albert C. Ramsey, and many others.

<p>The facts of this case are fully reported at p. 91 of this volume.</p>

I. December, 1859.—Motion to confirm report of referee awarding surplus moneys. This action was brought by Livingston Livingston against Elizabeth Miller, John Mildrum, William McAuley, Benjamin F. Pinckney, and thirty-four others, for the foreclosure of a mortgage upon seven houses and lots on the corner of Thirty-sixth Street and Fourth Avenue, New York city. There were three prior mortgages upon several portions of the land.

<p>Demurrer to complaint.</p>

Trial by the court. This action was brought by Philip Millspaugh, as executor of Charlotte Fuller, against Lewis Putnam, George B. Morse, and fifteen others, to obtain the direction of the court in regard to his trust and the distribution of the estate.

Motion to set aside execution against the person. This action was brought by Winslow L. Whiting against Willard G-. Putnam and George S. Gardner, in the First District Court of Rew York city, to recover $68.98, the price of' a lot of butter, lard, and flour sold to the defendants. The complaint set out also facts tending to show that the defendants had been guilty of a fraud in contracting the debt. Gardner alone was served with summons. The other facts appear in the opinion.

This action was brought by William B. Litch against John Brotherson. The action was referred, at special term, in December, 1861, to a referee, to hear and determine the issues.

Motion to change the place of trial. This action was brought by Joseph Philbrick against Thomas C. Boyd, to recover the proceeds of the sale of 320 bushels of wheat, which the plaintiff averred had been improperly sold, and the proceeds converted to defendant’s use. The latter answered that he received the wheat as warehouseman, with power to sell, and that he had fully accounted for the proceeds. The plaintiff lived in Washington county; the defendant in Monroe county.

<p>Motion to set aside a report.</p> <p>The facts appear in the opinion.</p>

<p>Austin Sherman brought this action against William C. Conner, sheriff of the city and county of New York, for an escape, and the summons was left at his-office during defendant’s absence, with his under-sheriff. The defendant now moved to set aside the judgment entered thereon.</p>

In March, 1861, Samuel M. Pettengill recovered judgment against Robert E. Mather, for $1,536.08. Subsequently the plaintiff obtained an order for leave to issue an execution against the person of the defendant, which was affirmed by the general term. (12 Ante, 436.) Execution was accordingly issued, and the defendant gave bail for the jail limits. In March, 1862, the plaintiff consented, in writing, that the sheriff should release the defendant from imprisonment.

The action was brought in the city court of Brooklyn by Daniel L. Noyes and William D. Wines ^against George Phillips, to recover damages for the breach of an agreement not under seal, to exchange a house and lot owned by the defendant for certain ■vacant lots owned by the plaintiff, the material parts •of which agreement involved in this appeal are as follows: “Agreement made and concluded on March 14,1873, ^between George Phillips ... of the first part, ;and Daniel L.…

This action was brought by the Eire Department of the city of New York against Richard Williamson, to recover a penalty of $50 for a violation of the Fire Laws, applicable to the city of New York.

Philip Flood, the administrator of the estate of Arm Williams, deceased, filed an account of his proceedings in respect to the estate. In the account was embraced a claim of the administrator against the intestate for three hundred dollars for rent, alleged to have accrued between May, 1861, and May, 1866, and before the death of the intestate, and the parties are all duly cited to attend the proof of this claim before the surrogate.

This action was brought by Nathaniel L. Griswold against Langdon H. Havens and three others. The facts are sufficiently stated in the opinion. The motion below was based upon several alleged irregularities. J udgment had been perfected in the Supreme Court, March 24th, 1863, and the motion was not made till May of the same year: the defendants appealed.

<p>Appeal.—Stay of Filing Remittitur.</p> <p>After an appeal has been determined, the court below will not order the filing of the remittitur to be staye.d, upon affidavit of the applicant that he intends to apply for a reargument in the appellate court, and showing grounds therefor. The court below ought not to question the decision of the appellate court, nor to delay enforcing it, without some sanction from that court or one of its judges.*</p> <p>But where a judge of the appellate court grants an order that the adverse party show cause why a reargument should not be had, and directing that in the mean time the remittitur be stayed if it had not been sent down, the court below may properly order that the filing of the remittitur be stayed pending the application to the appellate court, even though the remittitur had been sent down when the order to show cause was made.</p>

This action was brought by L. F. Barnes against Thomas B. Smith. The complaint contained three statements of causes of action. The first set forth a judgment obtained by Thomas Bidgway against defendant and John Gr. Diamond and John Smith, in the Common Pleas of Pike county, Pennsylvania. The second set forth a like judgment against defendant and John Gr. Diamond. The third set forth a like judgment against defendant alone.

<p>Attorney and Client.—Illegal Contract.—Transfer in Fraud of the Law.</p> <p>A merely colorable transfer of a thing in action for the purpose of ostensibly disconnecting the real party in interest, and of prosecuting an action on it in the name of one who has no interest, is fraudulent and illegal; and unless there is something in the relation of the parties to the transfer to take the case out of the general rule, the court will neither enforce it, nor restore the parties.</p> <p>The same rule should he applied though the assignor acted in the transaction by an agent. But where sr^ch a transfer is shown to have been procured by the assignee while acting as attorney for the assignor, and by advice given in that capacity, and for the purpose of suing in his own name, equity requires that it should not be enforced, or if it has been executed, that it should be rescinded on the application of the client.*</p> <p>The provision of the Code of Procedure, which leaves the compensation of attorneys to be fixed by agreement with the client, does not alter the rules as to the validity of purchases by attorneys from their clients.</p>

Robert H. Thompson brought this action against Jay Gould and others, alleging in his complaint that one Harrison on September 24, 1869, at the city of New York, entered into a contract of sale with the defendants, by which Harrison was to sell and deliver on the next day, September 25, through the New York Gold Exchange Bank, twenty-one hundred thousand dollars ($2,100,000), gold coin of the United States, to one Albert Speyers, and the defendants agreed that Speyers should…

I. August, 1875.—Matter of the final accounting of George S. Wright, administrator, &c., of John S. Wright, deceased. John. T. Wright died November 1, 1868, intestate. On the 17th of the same month letters of administration were granted to 'George S. Wright, his son, it being claimed that the decedent left no widow. He left surviving, by his wife whom he survived, ten children.

Motion by plaintiff for a new trial. This action was brought by Ezra G-ould against John Mortimer and others, to set aside a sale of real estate under the foreclosure of a mortgage given by plaintiff’s grantor. The material facts are detailed in the opinion.

<p>Arrest.—Active and Constructive Fraud.—Res Judicata.</p> <p>An appeal from an order denying a motion to vacate an order of arrest is not prejudiced by the entry of judgment against defendant, and the bail becoming charged pending the appeal.</p> <p>To justify an order of arrest on the ground of a fraudulent disposition of property, proof of an actual fraudulent intent is required.*</p> <p>The fact that an assignee for the benefit of creditors is misappropriating the proceeds of the assigned estate with the knowledge and assent of the assignor, who is acting as agent for the assignee, is not proof of a fraudulent disposition of property by the assignor within the meaning of section 179 of the Code,—which authorizes arrests.</p>

In the matter of the accounting of Benjamin Brown, surviving executor, &c., of James H. Blackwell, deceased. It appeared from the testimony in this matter that the testator died in 1858, leaving a will by which he provided, among other things, that his executors or the survivor of them should sell and convey his real estate, and should pay out of his estate his debts and funeral expenses and some small legacies.

<p>Petition in insolvency, under the Two-thirds Act.</p> <p>Samuel Emberson applied to the chief-justice, upon a petition signed by creditors, purporting to be such to the amount of two-thirds of all his debts, for his discharge from his debts as an insolvent, under the provisions of article 3 of title 1 of chapter 5 of part 2 of the Revised Statutes of this State. (2 Itev. Stat., 16.)</p>

The writ was issued on the relation of the Pacific Mutual Insurance Company.

The action was brought by the People against the Albany and Vermont Railroad Company, to compel defendant to repair and operate its road between Waterford Junction and Eagle Bridge, a distance of about twenty-one miles. The case was severely litigated. It was difficult and extraordinary, involving large interests and new and difficult questions of law. The value of the property directly affected by the result of the action, exceeded $50,000 in amount.

This action was brought by John Bishop and David Fitzpatrick to compel the defendants, John and James Edmiston, to account for certain insurance moneys collected by them for the plaintiffs and the defendant Charles McLauchlan, being for insurances on a vessel formerly owned by the plaintiffs and McLauchlan, and to pay over to the plaintiffs the amount coming to them respectively, in proportion to their respective interests in the vessel insured.