Volume 16 — Bosworth's New York Superior Court Reports

This is an appeal, by the plaintiff, from a judgment dismissing his complaint with costs. The action was tried in June, 1857, before Mr. Justice Hoffman, without a jury.

This case comes before the court, on an appeal by the defendants, from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion, made by the defendants for a new trial. This action was commenced on the 20th day of December, 1855, and issue was joined on the 9th January, 1856.

<p>1. In an action to recover the possession of personal property, brought by one who has been appointed, on proceedings supplementary to execution, a receiver of the property of a judgment debtor; and brought against such debtor and his wife on an allegation, that the property in question is the property of the plaintiff and is wrongfully detained from his possession by the defendants; the plaintiff cannot recover on merely proving that the property was demanded of the wife before suit brought, and that she made answer, that her husband “ did not own anything.”</p> <p>2. A married woman is not, as such, the agent of her husband, to respond to or act upon a demand made upon her for the delivery of property, which, a plaintiff may legally require the husband to deliver to him.</p> <p>3. Her omission to comply with such a demand, or to act in reference to it; or an answer by her to such a demand that her husband does not own anything, will not subject him or her to an action to recover the possession of such property, or to recover damages for its wrongful detention.</p> <p>4. When a person, who has been appointed a receiver of the property of a judgment debtor, demands the delivery to him of personal property, as being the property of such debtor, if the demand is sufficient in other respects, the objection cannot be taken at the trial that he did not exhibit, at the time of such demand, the evidence of his appointment as receiver, if the refusal to deliver, was not placed on that ground.</p>

This action comes before the Court, upon a verdict which was taken, by the direction of the judge presiding at the trial, in favor of the plaintiff, for $13,663.66, subject to the opinion of the Court at General Term, upon a case to be made; the parties stipulating that the date from which interest is to be computed, and the amount, should be subject to adjustment by the Court, the judgment in the meantime to be suspended.

<p>1. Where the owner of premises in fee, having demised the same for a term of years, dies intestate before the expiration of the lease; one of his heirs-at-law can sue alone to recover his aliquot part of subsequently accruing rent.</p> <p>2. That was the rule before the Code, and the Code has not affected the practice in this respect.</p>

Justice Bosworth, on demurrer to the plaintiff’s complaint. The complaint was as follows: City and county of Hew York, ss: The complaint of William H. Whitford, administrator of all and singular the goods, chattels and credits which were of Jeremiah H. King, deceased, plaintiff in this action, respectfully shows to this court— That the defendants are a corporation, incorporated by the name of The Panama Railroad Company, under and by virtue of an act of the Legislature of…

This action comes before the Court, on an appeal by the defendant from a judgment entered on the report of a referee. It is brought upon a note which, with the indorsements thereon, reads thus, viz.: “$500.

This is an appeal by the plaintiffs from an order made at Special Term, sustaining a demurrer to their complaint: The action is on a policy of insurance by which the defendants insured the plaintiffs… Held: that an abandonment, to be valid, must in all cases set forth the grounds upon which it is made; and that these must be such that, admitting them to be true, the right of the assured to recover a total loss is a necessary consequence.

This controversy comes before the court at General Term, upon a case containing the facts upon which it depends, agreed upon by the parties, as prescribed by § 372 of the Code.

Henry F. Tailmadge, Hugh Maxwell, James J. Van Allen and Cornelius R‘.

This is an appeal by the plaintiff from a judgment against him, entered on the Verdict of a jury. The action was tried before Mr. Justice Boswobth and a jury, on the 22d of December, 1857. It is on a marine insurance policy, issued by the defendants.

This is an appeal by the defendants from a judgment entered on the report of Henry Nicoll, Esq., as referee. The action was brought in December, 1854, to recover from the defendants $5,600 (and interest), being the amount due upon a bond and mortgage which the plaintiff had assigned to them, and for which he alleged they were to issue to him shares of their capital stock to that amount, and which stock they refused to issue.

This action was tried on the 22d December, 1857, before Mr. Justice Duer and a jury, and resulted in a verdict for the plaintiff, upon which judgment was entered, and the defendant appealed.

The plaintiff in this action is Ernest Zachrisson, and the defendants are Gustavus A. Poppe, William Poppe & Henry Schultz, composing the firm of Poppe & Co. It comes before the Court on an appeal by the defendants, from a judgment against them, for the amount of the plaintiff’s claim, entered on the report of a referee.

This action was tried on the 12th of November, 1857, before Mr. Justice Slossoh and a jury. The jury found a verdict for the plaintiff, for nominal damages only, and on the plaintiff’s exception to the charge the case came to the General Term. The following are the facts appearing on the trial: On the 19th September, 1854, Jacob Maeek and another sold certain paper mills, &c., to Messrs.

These actions, respectively, were tried before Mr. Justice Hoffman, at Special Term, by mutual consent, without a jury, and, in each, judgment was ordered for the plaintiff.

This action, comes before the Court on an appeal by the defendant, from a judgment entered on a verdict of $6,000 damages, rendered against him on the 31st of May, 1856. It was commenced in February, 1849. It first came before the Court, at its April General Term, 1851, on demurrers by the plaintiff, to the answers of the defendant. The demurrers were sustained, and liberty was given to amend the answers. (5 Sand.

This suit was originally commenced by the plaintiff, in the Supreme Court, in equity, against Abraham C. Thompson, George B. Fiske and The Long Island Railroad Company, and also against Digby V. Bell, as auditor-general, George B. Cooper, as treasurer, and Gideon A. Whittemore, as secretary of state, of the State of Michigan.

This cause came on to be heard at General Term, upon a case agreed upon between the parties, pursuant to § 872 of the Code, as follows, to wit: “By an indenture of lease, dated the Sd day of April, 1857, executed by and between the plaintiff as lessor, and William and Marcus Fñedlander as lessees, the plaintiff demised and rented to said lessees all the lofts above the first or principal story of the brick store number twenty-two, on the south side of John street, in the…

This case came before the General Term upon a verdict for .the plaintiff, taken subject to the opinion of the Court, and upon a hearing thereof, judgment was ordered for the plaintiff on the verdict at the March Term, 1857. The report of the case as disclosed upon that hearing is contained at length in 6 Duer, 588.

This cause came on to be heard at General Term, upon an appeal from the judgment rendered for the plaintiff, on a verdict had on the trial before Mr. Justice Bosworth and a jury, on the 20th day of October, 1857.

This action was tried before Mr. Justice Slossoh and a jury the 20th day of October, A. D. 1857, and on the trial the complaint was dismissed on the ground that no cause of action was proved. The plaintiffs sued as assignees of one Samuel Churchman to recover the loss sustained by him in consequence of the refusal of the defendants to accept at Panama, in New Granada, and pay for certain coals claimed to have been sold by Churchman to the defendants.

This is an appeal by the plaintiff from a judgment of Mr. Justice Hoffman, at Special Term, made the 11th of January, 1858, dismissing the complaint.

This action is brought by the administrators of Robert L. Mabey, deceased, who, on the 28th of October, 1854, became a stockholder in the Empire City Bank, (a banking association formed under the act of 1838), against the defendant, a director of the bank, to recover damages for violation of the provisions of part 1, chapter 18, title 2, article 1, section 10 of the Revised Statutes, alleged to have been committed by the defendant, as such director, between January 1, 1852,…

This action was tried before Mr. Justice Bosworth and a jury, October 16th, 1857. The plaintiff had a verdict, and from the judgment entered thereon, and from an order denying a new trial, the defendants appealed to the General Term. The facts and the grounds of the appeal sufficiently appear in the opinion of the Court.

This action comes before the General Term on an appeal by the plaintiffs from a judgment rendered at Special Term on the verdict of a jury in favor of the defendants, and also on an appeal from an order denying a motion, made by the plaintiffs, for a new trial, on a case containing the evidence. It was tried in May, 1857, before Mr. Justice Slossoh and a jury.

This action was tried before Mr. Justice Woodruff and a jury, on the the 25th day of March, 1857. The action was brought in 1856, upon two promissory notes made by the defendant at ninety days and dated May 24th, 1842, one payable to the order of I. M. Twitchings, and indorsed by him in blank, and, the other made by the defendant dated the 24th of December, 1844, at four months, payable to the order -of S. Kipp and A. Brown, and indorsed by them.

This action was tried at Special Term before Ob. J. Duer (without a jury), on the 5th November, 1857. The action was brought to compel the specific performance of an alleged agreement by the defendant Weeks, to convey to the plaintiff three lots of ground in the city of New York, with the buildings thereon.

This action comes before the General Term on an appeal by the defendants from a judgment, entered at Special Term. It was tried before Mr. Justice Hoffman and a jury, in December, 1857. The appeal presents only questions of law. The action was brought to recover the value of a diamond bracelet, which it was alleged belonged to the plaintiff and had been wrongfully converted by the defendants to their own use.

This action comes before the Court, at General Term, on an appeal by each party. The defendant appeals from a judgment entered against him on the report of Abraham Underhill, Esq., as referee. The plaintiff appeals from the same judgment, because the whole amount of his claim was not allowed.

This is an appeal by the plaintiffs; (William Bargett and John Picard) from a judgment in favor of the defendants, (The Orient 'Mutual Insurance Company) dismissing their complaint. The action was tried before Mr. Justice Slosson and a jury, in February, 1858.

This is an appeal by the defendant, from a judgment in favor of the plaintiffs entered on a verdict against the defendant, at a trial before Mr. Justice Slosson and a jury, on the 18th of May, 1858. This action, is Replevin for fourteen cases of sample fancy goods.

This is an appeal by the defendant from a judgment, entered against him on the report of a referee. The action is brought by the plaintiff as assignee of John B. Stevens, attorney and counsellor at law, to recover for professional services rendered by the latter for the present defendant, Isaac H. Merkel, in- a suit in which Merkel was plaintiff and one John Adair was defendant.

<p>1. TJnder the Code, as it was amended by .the act of April 11, 1849, lands may be partitioned by action.</p> <p>2. A party entitled, and intending to commence such an action, may, before service of the summons, procure a guardian for minor defendants to be appointed, in the manner prescribed by 2 B. S., 317, §§■ 2, 3.</p> <p>3. When a guardian, thus appointed, has made and filed such a bond as the order appointing him and the Revised Statutes prescribe; i and has given notice thereof to the party intending to institute such action; he has thereby effectually consented to act as guardian, and has accepted of his appointment as such.</p> <p>4. The summons and complaint, in such action for partition, should be served on him as such guardian, and such service is a legal and valid service on the minors whom he represents.</p> <p>5. The omission of such guardian to file an answer to the complaint, or to give notice of his appearance in the action, will not affect the validity of a judgment that partition be made, especially if an answer be filed by virtue of an order of the Court, as of the time when it might have been regularly served as a matter of course; though such order be made after judgment has been perfected.</p> <p>6. Such defects or objections are not sufficient to justify the Court, in dismissing a suit for the specific performance of a contract to purchase lands, the vendor’s title to which depends upon the validity of a judgment in partition, rendered upon such proceedings.</p>

This is an appeal by the defendants, (The New Yorlc Life Insurance Company) from a judgment entered against them (February 9, 1858) in favor of the plaintiff, (Oliver Hoyt,) on the report of B. W. Bonney, Esq., as referee. The action is on a policy of insurance, dated the 22d of May, 1849, effected by one Anson W. Francis, with the defendants, in the sum of $1,000, for the term of three years, on the life of Thomas F. Castle.

This is an appeal by the defendant from a judgment rendered against him. The action was tried before Mr. Justice Hoffman in December, 1856, without a jury; a trial by jury having been waived. It was commenced in May, 1853, against Joseph Stuart, as executor, &c., of Andrew Gray, deceased, defendant, by J. Edwards Hoyt as plaintiff. The latter having died, pendente lite, the action was continued, by order dated May 1st, 1855, in the names of Wm.

This is an appeal by the defendant, from a judgment against him, entered in favor of the plaintiff on the verdict of a jury. It was tried before Mr. Justice Woodruff and a jury, in June, 1856.

This is an appeal by the defendants, from a judgment rendered against them, in an action tried before Mr. Justice Slosson and a jury, in April, 1858. Robert Chapman is the plaintiff, and Dines Carolin and James A. Carolin are the defendants.

This is an appeal by the defendants, Carl L. Recknagel and Gustav Schwab, from a judgment against them, in favor of the plaintiffs, William Kelson, and William Kelson, Jr. The action was tried in May, 1858, before Mr. Justice Slossoh, without a jury, a trial by jury having been duly waived.

After the argument of this cause, and the decision made therein, at the June Term, 1857 (reported 1 Bosw., 557), the defendant applied for, and, upon grounds which it is not material to state, obtained a resettlement of the case.

This action comes before the Court at General Term, on an appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of a referee. Mordeoai L. Marsh, the plaintiff, sues as assignee of Frances Jackson.

This is an appeal by the defendants, The, Mayor, Aldermen and Commonalty of the City of New York, from a judgment in favor of George S. iSt. John, the plaintiff. The action was tried before Mr. Justice Bosworth and a jury, on the 15th day of March, 1858.

This action came on to be heard on appeal from a judgment for the plaintiff on the report of Abraham Underhill, Esq., as referee. The statement of the case is as follows: In the year 1853, the defendants, as partners, composed the firm of John Steward, Jr., & Go., in the city of Hew York. The plaintiff, Archibald H. Lowery, was also a merchant doing business in the said city.

This is an appeal from an order,' made -by Mr. Justice Hoffmah, in April, 1857, sustaining a demurrer to the complaint.

This action was tried before Michael Ulshpeffer, Esq., as referee. He reported in favor of the plaintiff the sum of $1,060. Upon that report judgment was entered for the plaintiff, and from the judgment the defendant appealed to the General Term.

This is an appeal by the defendants from an order denying a motion made by them for a new trial. This cause was tried before Mr. Justice Woodruff and a jury, on the 23d of April, 1858, when a special verdict was taken, as hereafter set forth, in favor of the plaintiffs, and for the sum of $3,486.41. A motion was made at Special Term, by the defendants, for a new trial, which was denied by an order of the 7th of May, 1858; and from that order the present appeal is taken.

This is an appeal by the defendant from a judgment entered against him, March 27, 1858, on the .report of Hamilton W. Robinson, Esq., as referee. The action was commenced about the 7th of June, 1856, against the defendant as the maker of two several promissory notes, which with the indorsements thereon, read as follows, viz.: “$1,000.

This action comes before the Court, on questions of law arising at the trial, and which were there ordered to be heard, in the first instance, at the General Term. It was tried before Mr. Justice SlosSON, and a jury, in February, 1858.

This is an appeal by the defendant from, a judgment entered against him on the report of Henry Nicoll, Esq., as referee. The action is brought by Henry 0. Andrews against William B. Clerke, as survivor, &c., of Thomas Clerke, deceased.

This action comes before the Court, at General Term, on an appeal by the defendant from an order denying a motion for a new trial, and also on an appeal from a judgment entered on a verdict in favor of the plaintiff. It was tried in November, 1857, before Mr. Justice Woodruff and a jury. The action is brought to recover damages on account of the death of Johann N. Karl, which death, the complaint alleges, was caused by the negligence of the defendant.

This action comes before the Court, at General Term, on an appeal by the defendant from a judgment entered against him, on the report of E. P. Cowles, Esq., as referee. The plaintiff sues as indorsee of a note, made by the defendant, dated August 14, 1855, payable “to the International Insurance Company or order, for value received,” twelve months after its date, at the Bank of Commerce, in New York, being for the sum of $1,000.

This case was heard, at General Term, on an appeal by the plaintiff from an order of Mr. Justice Boswobth, modifying an injunction, and not granting the appointment of a special receiver. The action herein is brought by the plaintiff as receiver of the property of James Strauss, Joseph Emanuel and Abraham Emanuel, judgment debtors.

<p>1. When a judgment and éxecution creditor (whose execution has been returned unsatisfied) brings a suit against his debtor to set aside, as fraudulent, an assignment made by the latter of his property, and includes the assignee as a defendant, and prays in his complaint for such relief, and that a receiver of the assigned property may be appointed, and that the plaintiffs’ debt and costs may be paid out of the same; that the defendants make discovery of the entire assets whether the assignment be adjudged void or not; and that the assignee account for such property as a trustee in behalf of the plaintiffs and other creditors of the said assignor; the Court will not, upon motion, compel the plaintiffs to elect, either to proceed to set aside the assignment as fraudulent, or to proceed under it as a valid assignment for an account of the assets assigned; and if he elect the latter course, strike out all allegations of fraud and the prayer that the assignment be adjudged fraudulent; and if he elect the former, strike out the prayer for a discovery, and an account of the assets assigned, by the assignee as a trustee on behalf of the plaintiff and other creditors of the assignor.</p> <p>2. Such a motion could not be granted, in any aspect, except upon the assumption, that it is well settled law; that if the plaintiff fail to establish the fraud, he can have no relief in the present action. Such a question can only be settled, according to the orderly course of practice, at the trial.</p> <p>3. Where, as in the present case, it is not asked that any allegations of fact should be stricken out of the complaint, as being irrelevant to the proper statement of a case to set aside an assignment as fraudulent, the plaintiffs should be permitted to prove them all if they can, and should have granted to them such relief as the facts they may prove may entitle them to demand; and what that relief should be, should be left to be determined at the trial.</p> <p>4. In such a case, the prayer for relief, when concisely and clearly stated should not, on motion, be incautiously interfered with by the Court; inasmuch as it is the duty of the Court, upon the trial, (whatever the relief prayed), to grant any relief consistent with the case made by the complaint and embraced within the issue; and inasmuch also, as upon a failure to answer, no relief can be granted exceeding that demanded by the complaint.</p> <p>5. In so far as such a motion is made on the idea, that such a complaint contains two several causes of action which cannot be properly united, it is a sufficient answer to it; that the appropriate mode to test that question is by a demurrer; and a party should be restricted to that remedy.</p> <p>6. Motions, made before a cause is at issue, the decision of which cannot effect any practical result beyond the determination, prior to the trial, of the extent of the relief which the Court would deem it proper to grant, as one state of facts, or another, should be established at the trial; should not be entertained.</p>

This was a motion by the plaintiff to dismiss the defendants’ appeal from a judgment entered on the report of a referee. The facts sufficiently appear in the opinion of the Court.

The complaint alleged a sale and delivery of goods to the defendant; that he agreed to pay therefor $61.04; admitted the payment of $3.50, on account, and prayed judgment for the balance.

<p>This is an appeal by the defendant from an order made by Bosworth, Oh. J., on the 26th of January, 1859, denying defendant’s motion to set aside an attachment against his property, granted in this action on the 17th of January, 1859, by the Chief Justice.</p> <p>The affidavit on which the attachment was granted, stated facts establishing that a cause of action existed in favor of the plaintiff against the defendant, for money lent, and the amount due. It appeared thereby that the defendant was not a resident of the State of New York, and it contained various allegations of fact tending to show, that the defendant was about to dispose of his property with intent to defraud his creditors. The defendant moved, on that affidavit and on one made by himself, to vacate and set aside the attachment. The defendant, in the latter affidavit, states “that he is informed and believes that the attachment in this action was granted by his Honor, Chief Justice Bosworth, and delivered to the sheriff for service and execution, before the summons in this action was served upon deponent.</p> <p>“ That the deputy-sheriff, at the time of the service upon-this deponent of the summons herein, delivered to this deponent a copy of the said attachment.” The defendant’s affidavit contained various other allegations, some of which were inserted to show that he had ceased to be a resident of Washington, D. C., and had abandoned his residence there and become a resident of New York before this suit was commenced; and others to repel the suggestion that he was about to dispose of his property with intent to defraud his creditors. The order to show cause why the attachment should not be vacated, specified as the grounds on which it should be set aside, the following, viz.:</p> <p>First. That the defendant was a resident of New York.</p> <p>Second. That the affidavit on which the attachment was granted was insufficient, and,</p> <p>Third. That the attachment was granted and issued before the summons was served; and therefore, (as it was insisted,) before the Court had acquired jurisdiction of the action. That the acts of the Chief Justice in issuing it, were acts done in a matter of which he had no jurisdiction.</p> <p>The motion was opposed on various affidavits tending to show that the defendant was not a resident of the State of New York; and, as the plaintiff insisted, also tending to show that the defendant was about to dispose of his property with intent to defraud his creditors.</p> <p>There was nothing in the affidavits tending to show, that the attachment was granted before the summons had been issued and delivered to the sheriff to be served, or that the attachment was served until after the summons had been actually, and personally served, on the defendant. The papers did not contain a copy of the attachment, and, therefore, did not show whether or not, by its terms, the sheriff was directed (after service of the summons had been made) to attach defendant’s property, &c.</p> <p>The motion to set aside the attachment was denied, and the following opinion was filed with the decision:</p>

This action comes before the Court, on an appeal by the defendant Ward, from an order made, pro forma, on the 15th of January, 1859, by Mr. Justice Pierrepont, which order declared that the defendant Ward is not entitled to costs, in this action, and directing that the adjustment of costs in his favor which the clerk had made, be disallowed.

The defendant moves to vacate an order holding him to bail. The action is on a cause of action not arising on contract; the cause of action being the alleged false and fraudulent representations of the defendant as to the means and pecuniary liability of S. A. Parker & Co., whereby the plaintiff was induced to sell and deliver to the latter goods on credit.

This is an appeal by the defendants from an order overruling their demurrer to the plaintiff’s complaint; made the 30th of March, 1859, by Mr. Justice Hoffman.

This was a motion by the plaintiff for an order requiring the referee (appointed herein to inquire into and determine what would be a suitable amount to be allowed to the plaintiff for permanent alimony, and how the same should be secured,) to proceed in such reference, or that another referee be appointed, in his place,, to proceed therein.

This was a motion, by the defendant, to set aside a proposed amendment to the defendant’s case, prepared by him for the purposes of an appeal from a judgment entered on the report of a referee. The amendment served proposed to amend by striking out the entire case, and substituting a case as drawn up by the plaintiff’s counsel.

This is an appeal by the defendant from an order made by Mr. Justice Woodruff, on the 25th of June, 1859, denying a motion made, for a commission to examine witnesses on his behalf in California, and for other relief. The motion was made on the petition of the defendant, and affidavits of third persons, and was opposed on affidavits of the plaintiff and others, and upon other papers.