Volume 16 — Howard's Practice Reports

<p>The Code, admitting all parties to be heard in one. suit, does not apply to the writ of mandamus.</p> <p>Where the Croton Aqueduct Board awarded a contract for building a new reser? voir in the city of Kew-York, to Fairchild & Co.,upon which, Dinsmore & Wood, whose.application for the same was rejected, sued outa writ of mandamus; and on appeal to the general term by Dinsmore & Wood, they-procured an order to stay proceedings until a final hearing should be had;</p> <p>iZéM, on motion by Fairchild & Co., to vacate this stay of proceedings, that they were not in a situation to move for such an order. They were no parties to the mandamus, and were in no wise affected by the judgment and order upon it. The order did not bind them, and as against them, did not protect the Croton Board.</p>

<p>The testator, by his will, authorized his executors to lease to his widow, for a term not exceeding fourteen years, bis house in Murray Streep (Hew-York,) at a rent of $800, they, and not the lessee, paying all taxes, assessments, insurance and repairs. The lease, however, was to be “ on the condition that she should occupy the premises for her residence.”</p> <p>After the death of the testator, it appeared that great changes were taking place in that part of the city, and the immediate neighborhood, which had rendered the premises unsuitable for a residence, (where the widow and family then resided,) but of far more value for business.</p> <p>The question was, whether under the will there was any authority to change the residence during the lease? Under a clause of the will which authorized the executors, not only to make repairs on the real estate, (not excepting the Murray street residence,) but alterations and “improvements to the buildings” as they may consider most for the benefit of those interested therein, extending even to the “removal of existing buildings, and the erection of other buildings, of such form and construction as they (the executors) may think most expedient.” The court held, that with the consent of the widow, the executors were clearly empowered to tear down the dwelling in Murray street, and erect a store or other structure thereon, corresponding with the altered condition of things.</p>

Wright, Gould and Hogeboom, Justices. This was an appeal by the defendants from an order of Mr. Justice Gould, overruling a demurrer to the complaint.

<p>A defendant applying for a second adjournment in a justice’s court, must bring himself within the statute, and show affirmatively and satisfactorily, that he has used due diligence to obtain the attendance of the absent witness. An affidavit alleging that.the witness was not within reach of the process of the court on the day the affidavit was made, is not sufficient. Ii the affidavit had alleged that the witness had been out of the reach of process since the last adjournment, it would be sufficient.</p> <p>A mere notice of appeal without stating any grounds upon which the appeal is founded, is not sufficient. In such a case, the justice would not be bound to make his return. And if he did make it, the appeal on motion would he dismissed. And it is not sufficient for the notice to contain “ a ground of error,” or “ grounds of errorbut it must state truly the grounds, and all the grounds upon which the appeal is founded, or upon which the appellant relies. (See decision to the same effect in Derby agt. Hannin, 15 How. 32.)</p> <p>It seems, that the only remedy against commissioners of highways for not repairing highways, is by indictment, except that in a proper case, they might also be proceeded against by mandamus.</p> <p>If a person can, in any case, sustain an action against such commissioners for damages sustained by a road negligently and wrongfully left out of repair by them, it can only be when the damages sustained are special, and peculiar to the plaintiff; but it cannot be for such damages as are incident and common to all persons who may have occasion to travel on the road.</p> <p>Quere. Whether in an action against commissioners of highways for damages for not repairing a highway, and in actions of this kind, it is not the same in a justice’s court, as in the supreme court, that although the amount of damages claimed, ($100,) is not put in issue, (the defendants not denying the action,) still, the amount of damages must be proved ? But whether this be so or not, the defendants, by not denying, do not in any view of the case admit only such damages, as on the face of the complaint they are legally liable to pay.</p>

<p>A formal entcepUon to a referee’s report under an interlocutory decree, is not necessary. Where the exceptions to the evidence before the referee at the hearing are specific enough, it is not necessary to repeat them on the summing up before the referee, or at any other time.</p> <p>Where the decree of the court, without expressly deciding Mrs. Evertson’s estate was liable for the want of reasonable care and diligence in collecting the money due upon the bond and mortgage, directed the referee to ascertain whether she failed as to her duty in that respect, and the referee having reported fully upon the point, this court confirmed the report—the referee having had full opportunity to canvass and weigh the whole evidence thereon.</p>

Weight, Gould and Hogeboom, Justices. This was an appeal from an order of Mr. Justice Weight, at special term, denying a motion for a peremptory mandamus.

<p>Where the complaint prayed that a deed of trust should he declared, “void, null and of no effect,” and also “ for such further or other relief as may be agreeable to equity and good conscienceSeU, that although the deed could not be declared to be void, null and of no effect, yet under the general prayer of the complaint, the court might allow it to be reformed. And it was reformed by inserting in it a power of revocation.</p>

<p>Johnson, Welles and Smith, Justices.</p> <p>Appeal from an order of special term, entered in August, 1856, overruling demurrers to 1st and 2d answers.</p>

On the 28th of February, 1855, a resolution of the common council of the city of New-York, was approved by the mayor, directing the street commissioner to furnish each member of the common council, to the mayor’s office, and to the chambers of the boards of aldermen and councilmen, a copy of the map of wharves and piers of the North and.East rivers, as originally drawn by Daniel Ewen, city surveyor, and embracing the alterations and additions to date.

Oír the 10th day of September, 1857, L. 0. Hoffman, Esq., Justice of the Peace of the town of Waterford, rendered a judgment in favor of the plaintiff and against the defendant, for $50 damages, and $1.63 costs. The defendant appeals.

<p>Motion to change place of trial from New-York to Washington county.</p>

The cause was noticed for trial by both sides, at the September circuit, 1856, in Washington county. The action involved the examination of a long account, and was clearly referable. The defendant’s attorney wrote to plaintiff’s attorney, two or three weeks before the trial, proposing to refer the cause, but received no answer, and again drew his attention to it orally.

<p>Alleged collusive appointment of a receiver.</p>

Application to determine the right of plaintiff to the additional allowance under section 308 of the Code, as amended by the act of April 13, 1857, in an action to foreclose a mortgage, where defendants paid the amount due with the costs specified in section 307, before judgment; the payment having been made and received under stipulation of the parties, that it should not affect the plaintiff’s right to the allowance, if the court should be of opinion he was entitled to it.

<p>On a motion to discharge an order of attachment issued under the Code, the defendant may read cownier affidavits in support of his motion.</p> <p>Under the Code, an attachment is not process for the commencement of an action ; it is an order in the action, for the arrest of the debtor’s property, in the nature of bail for the payment of such judgment as the plaintiff may obtain; it may issue in a proper case, at the time of commencing the action, or at any time afterwards. In these respects, it is entirely unlike the attachment provided by the Revised Statutes, that being the commencement of a proceeding instituted and conducted out of court, before an officer who derives his power in the matter from the statutes.</p> <p>The Code, where in its provisional remedies, it uses the term residence, or resident, means legal residence. And legal residence means the place of a man’s fixed habitation, where his political rights are to bo exercised, and where he is liable to taxation. The idea that the word “ resident,” when used in the statute, means domicil, or home, or habitation in one place, and the reverse in another, is absurd. That a man may have a residence in one state to vote, and in another to exempt him from attachment, seems preposterous."</p>

This bill is filed to get rid of the consequences of an unfortunate speculation in Gold Hill stock, on the alleged ground of fraud and misrepresentation.

<p>Appeal from adjustment of costs.</p>

<p>There is no law now different from what it was before 1847, when the law m regard to the separate estate of a married woman was passed, giving her any more authority to carry on business, and contract debts now, than she had then.</p> <p>In neither case are her contracts valid, so far as her liability is involved. Payment of debts contracted in regard to the separate estate of the wife, both before and after the passage of that law, was enforced against such- separate estate in equity. The mere purchase of goods by a wife, because she has a separate estate, would not constitute a lien thereon. The property, if purchased by the wife, unless paid for out of her separate estate, would belong to her husband, and be liable to seizure for his debts; and he, if he sanctioned the purchase, would be liable to an action for it. (See to the same effect Lovett agt. Robinson, 7 How. 105, and Cobine agt. St. John, 12 id. 333.)</p> <p>And the mere fact that the plaintiffs knew and so alleged in their complaint, that the defendant, a married woman, had personal estate, and that when they sold her the goods, they trusted her more willingly on that account, does not create any new liability on the part of the defendant.</p> <p>If the plaintiffs could in any way obtain a lien for the debt on the separate estate, it could only be by the sale of property which was used for the benefit of such separate estate, or upon a direct pledge of such estate at the creation of the debt.</p>

The defendants gave their note to the International Insurance Company, of which the plaintiff was president, for the premium on a policy of insurance on a vessel. Subsequently, the president loaned the company some $2,000, and without any resolution on the part of the directors, took this, with other notes, to reimburse himself. The notes, however, were regularly indorsed to him by the company.

<p>Am individual hanker is a corporation sole. And if an individual banker is a corporation sole, he may take any corporate name he may choose, and sue in that name.</p> <p>Therefore, Charles Cook, an individual banker, carrying on the business of banking at Havana, New-York, under “.the act to authorize the business of banking,” passed April 18th, 1838, and the several acts amending the same, in the name of “ The Bank of Havana,” had a legal capacity to sue in such name.</p> <p>The plaintiff in this case, stated his title in the complaint in this way: “ The . Bank of Havana, the plaintiff in this suit,” &c. The question was, whether this was a sufficient averment to show the plaintiff had legal capacity to sue 1 Held, that the plaintiff should have recited .the title of the.act and the date of its passage, under which proceedings were had for its incorporation, (2 K. S. 459, § 13,) as was properly decided by Judge Mitchell, in Johnson agt. Kemp, (11 How. 186.)</p> <p>The complaint, therefore, showed on its face, that the plaintiff had not legal capacity to sue, and for this cause was denwrrdble. (11 How. 216.) And as the defendants took no objection by demurrer or answer, that the plaintiff had not legal capacity to sue, by sections 147 and 148 of the Code, they are deemed to have waived the same.</p> <p>Had it been necessary to set forth in the complaint that the plaintiff was a corporation, to have made the complaint “ state facts sufficient to constitute a cause of action,” then the defendants could have taken advantage of the defect in the complaint upon the trial. {Code, § 148.) But the capacity of the plaintiff to sue, has been held to be independent of the cause of action. (11 How. 216.)</p> <p>The complaint in this case, however, did state facts sufficient to constitute a cause of action. By the Revised Statutes, (2 S. S. 458, § 3,) which is stiR in force, it is provided, “ In suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar, that the plaintiffs are not a corporation. Therefore, to put the plaintiff to proof of such fact, the defence of nul iiel corporation must be set up by answer.</p>

<p>The defendants in these cases, two railroad companies, were indicted for a public nuisance in running their engines and cars through Atlantic street, and through a tunnel in Atlantic street, in the city of Brooklyn, New-York.</p> <p>The defendants moved to change the place of trial from the county of Kings, on the ground that there was a strong and controlling excitement against the defendants upon the principal question involved in these controversies in the city of Brooklyn, caused principally by those who had been instrumental in procuring the indictments;</p> <p>Held, that if the objection to the jurors extended no further tlfan to the residents of Brooklyn, and if it prevailed generally as to them, but not to those residing in the other towns in the county, it was enough to call upon the court to change the place of trial. Because, comparatively the number of jurors from the other towns in the county must be very small, the population of Brooklyn being 205,250, while that of the other towns was 11,105.</p> <p>Held, also, that the several facts stated to show that there was a strong excitement and a hostile feeling against the defendants, in reference to the charges of nuisance contained in the indictments, prevailing extensively, not only among the residents along Atlantic street, but extending through the entire city, was sufficient to authorize the court to order the place of trial to be changed. It was accordingly changed to the cohnty of Westchester.</p>

<p>The omission to record an instrument does not prejudice the right of the grantee, as against a subsequent grantee, with notice.</p> <p>It was held in this case, that the plaintiff through his agent, had notice from the facts and circumstances, of a prior mortgage to his own, although it was unrecorded ; and that such prior mortgage was decreed to be prior in lien upon the premises, to the plaintiff’s mortgage.</p>

Motion to set aside judgment. The plaintiff obtained a judgment against defendants in the above action, on the 22dof October, 1856, for $1,668.25, damages and costs, and filed roll in Washington county. The complaint was not sworn to, but the plaintiff took his judgment without any formal proof before the clerk.

<p>Vagueness in pleading, it is well settled, is not frivolousness, it is to be corrected by amendment, and not visited by judgment.</p> <p>On an application for judgment on the ground that the answer is sham or frivolous, it is enough that a good defence is “shadowed forth.” If it can be seen that the defence set up, if true, is good, it is sufficient to prevent a summary judgment. It is only necessary that the defence should not be clearly bad.</p> <p>In this case, the defendants set up a want of consideration in the note given on the purchase of wines, so called; alleging that the wines purchased, called “Port,” “Pale Sherry,” “Burgundy,” “ Muscat,” and “Madeira,” turned out to be mere sham fabrications.</p> <p>Held, that it was due to the public health that a full trial should be had. If it was true, (as alleged in the answer,) that manufactories existed in the city of New-York, for the getting up of “unwholesome and spurious mixtures,” to be palmed off upon the unsuspecting as wines of “ the pure juice of the grape,” under the captivating names above mentioned, the courts, instead of suppressing, should assist in their investigation and exposure.</p>

Plaintiff in this case is. a resident freeholder and a tax payer in this city, and brings this suit in his own behalf and in behalf of other, tax payers.

<p>This was a motion for judgment for want of reply to answer. The plaintiff was to have ten days to reply, on payment of $10 costs. The plaintiff did not reply, but noticed case for trial.</p>

<p>The maker of a promissory note loaned to the payee, for the use of and sold by the latter, as business paper to a third party, cannot set ujfthe defence of usury, to the payment of the note, where the payee, if any one, was the only person who paid any extra interest.</p> <p>Where there has been a regular judgment by default, upon a promissory note, upon due service of process, and execution issued to the sheriff, the defendant’s application to be let in to defend, on the ground of usury, comes too late. He should at least, have waked up before the call of the sheriff with the execution.</p>

Present, Welles, Smith and Johnson, Justices. Appeal from order denying motion to set aside judgment. The judgment was duly entered on the 3d of December, 1857, upon affidavits showing the service of summons and complaint in the action, on the defendant personally, on the 12th of November, previous; that there had been no appearance on the part of the defendant, and no answer or demurrer received by the plaintiff’s attorney.

<p>Demurrer to complaint.</p>

Motion to stay proceedings. The action was brought to recover a balance claimed to be due upon a special contract. Issue being joined, it was referred to referees, who reported that there was due to the plaintiff the sum of $722. For this amount, with $844 costs, making $1,066, judgment was perfected on the 27th of July, 1857.

Before Bosworth, Hoffman, Slosson, Woodruff and Pierrepont, Justices. Appeal from order at special term granting an injunction.

Davies, Sutherland and Ingraham, Justices. Held: “ that this transaction did not constitute Hall a copartner with W. & B., either as between themselves or as to third persons, and that Hall was not individually or jointly liable with W. & B. ” for this hay. Judgment was entered upon the report of the referee, from which the plaintiff appealed. First.

<p>Motion by plaintiff for leave to discontinue the action with out costs.</p>

Motion that defendant be required to pay money admitted to be due. The complaint contained three counts. The^rsi count stated that the defendant had hired of the plaintiff a certain store in the city of Albany, for which he agreed to pay a stipulated rent, together with the taxes which should be assessed thereon, and that the defendant had failed to pay such taxes, amounting to $177.84.

<p>Demurrer to complaint.</p> <p>The first of these cases was on contract, and the other was a trespass suit. The defendants demurred to the complaint in each case, on the ground of misjoinder of plaintiffs, and that the complaint did not show a cause of action, and in the trespass case, the additional ground that several causes of action were improperly united. The demurrers were argued together.</p> <p>The complaint in the contract case is as follows:</p> <p>“ The complaint of the plaintiffs shows to this court, that the plaintiff J"ohn Dunderdale is the husband of the said Emily Dunderdale; that the said Emily Dunderdale was the keeper of a boarding-house in the town of Gastleton, in the county of Eichmond, in the year 1856; - that on or about the first day of May, in s.aid year, the defendant hired and took board and rooms with the said Emily Dunderdale, for herself and servants, and used and occupied the stable belonging to said Emily Dunderdale, and continued to receive such board and to use and occupy said rooms and stable, from said first day of May, until on or about the 17th day of November, 1856, for which she then and there agreed to pay said Emily Dunderdale, what such board, and the use and occupation of such rooms and stable were reasonably worth; that the same were reasonably worth the sum of $865.50, for the period aforesaid; and although requested so to do, the defendant has not paid the same or any part thereof, except the sum of $18 ; that the amount so due the said Emily Dunderdale is her separate property. Wherefore, the plaintiffs demand judgment against the defendant for the balance of $847.50, with interest from ¡November 17th, 1856.”</p> <p>In the trespass case, the complaint contained two counts:</p> <p>In the first count, after alleging the relationship of husband and wife, between the plaintiffs, the complaint stated that the defendant “ broke and entered a certain close, in the possession of and occupied by the said Emily Dunderdale, lying, ” &c., 11 and then and there dug down a certain stone wall,” and also “ broke and entered the dwelling-house occupied, by the said Emily Dunderdale, and forced open the doors, whereby the said Emily Dunderdale was hindered and prevented from having the use and enjoyment of the said close and dwelling-house, and her furniture and household articles were greatly damaged, &c.” The allegations of the second count were the same as the first, except that the trespass alleged was, that the defendant “ ejected, expelled, put out and amoved the said Emily Dunderdale and her family from the possession of the said close and dwelling-house.”</p>

<p>On an application for a toondamus to compel the clerk of the marine court to issue an execution on a judgment of reversal by the general term, of a judgment of the special term of that court, on the ground that all the proceedings founded on the appeal to the general term were void, and that the judgment of the special term remained in full force, for the reason among others of less importance, that the time allowed by statute for bringing the appeal had expired,</p> <p>Held, 1st. That the question on tho motion to dismiss the appeal decided by the general term of the marine court, was one concerning the regularity or validity of proceedings within its own especial cognizance; and with regard to which, it is proper that its decisions should generally be deemed conclusive. If¡ indeed, the time allowed by statute for appealing had expired, the court had no power to extend it; but they were the best judges of the fact, whether the time had expired, and whether all the other proceedings in relation to it were regular.</p> <p>2d. Even if the proceedings relative to the appeal had been a nullity, the counsel for the relator, after unsuccessfully moving to dismiss the appeal on the ground of irregularity and nullity, argued the meritorious points involved in the case on the appeal before the general term. This was a complete waiver of all defects relating to the manner of the appeal, although before the argument on the merits, they might have amounted to a nullity.</p> <p>Provided the action is legitimately within the jurisdiction of the court, a party cannot appear to urge objections on the merits, seeking to avail himself of a decision in his favor, and at the same time reserve a right if it should be against him, to assail the form in which the essential subjects in dispute have been presented.</p> <p>And 3d. It is very doubtful whether it would be a proper exercise of the discretionary power of this court on an application for a mandamus, to grant it on an occasion merely concerning the practical proceedings in another, though inferior court of judicature.</p>

Motion .on behalf of the Bank of Central ¡New-York, a judgment creditor of the defendants, to set aside the judgments in the above actions, and for such other relief as the moving party may be entitled to. The judgment in favor of the Bank of Central ¡New-York, was perfected on the 6th of ¡February, 1858, against all the defendants, upon confession of judgment by all.

This action was brought to recover penalties for violations by the defendant of the law of 1857, entitled, “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors.” The complaint contained allegations that the defendant had at Cineinnatus in the county of Cortland, on certain specified days, sold strong and spirituous liquors and wines, in quantities less than five gallons at a time, without having a license therefor; and that he had forfeited the…

This action was tried on the 24th day of June, 1854, in the supreme court, first district, before Judge Mitchell, (Charles L. .White being plaintiff, and Eobert Bullock defendant,) and a verdict obtained by White of $3.03.

On the 28th of March, 1843, defendants leased to the plaintiffs the premises known as “ Castle Garden,” for eleven years from May 1st, 1843.

Present, Welles, Smith.and Johnson, Justices. Motion to dismiss appeal, on the ground that no case or exceptions has been proposed or settled. Cause tried before referee. The facts appear in the opinion of the court.

The complaint is demurred to for two causes. First, that it does not set out a good cause of action, and second, that two different causes of action are improperly united.

<p>Common law rights of action as they existed at common law, and equitable rights as they existed in equity, the legislature did not intend to change by the passage of the Code. But they intended to blend the processes and forms for the enforcement of those rights into a single suit, so that the courts might administer complete justice to the parties in one action, as far as possible.</p> <p>It is therefore no longer necessary or admissible, to restrain by injunction in one suit, the proceedings in another action pending in the same or another court.</p> <p>Thus, where a party brought his action in the second district, for the delivery and possession of two canal boats, which he obtained on giving the requisite security under the statute, and pending this action, the party from whom possession was obtained brought an action in the seventh district, claiming the rights of an equitable mortgagee, and a right to redeem said boats and pay off whatever amount was due the party who had obtained possession, also an injimctilm restraining the party in possession from using or disposing of said boats pending the litigation,</p> <p>Seld, on a motion by the plaintiff in the last suit, for the appointment of a receiver, tad a motion by the defendant at the same time for a dissolution of the injunction, that to allow the appointment of a receiver, and divest the defendant of the possession he had acquired, and thus draw to thé seventh district the litigation between the parties, was entirely inadmissible. The plaintiff might, if he was not obliged to do so, interpose the matters set up in his complaint as an equitable defence to the replevin suit, and thereby obtain such equitable relief as he might.be entitled to. The motion for appointment of a receiver denied, and the motion for a dissolution of the injunction granted.</p>

The complaint alleges that on or about the 11th of April, 1857, in consideration of the plaintiff’s promising and agreeing with the defendants that he would, upon receiving from the defendants a sum of money therein mentioned, and upon certain promissory notes being delivered to him, transfer and assign to the defendants all the rights and interests he then owned, by means of moneys paid out by him upon a bid made by him upon the sale of certain real estate under a certain…

<p>A plaintiff cannot be allowed to restrain by injunction a defendant from obtaining payment of indebtedness due to him, and tie up and endanger a large amount of property, by preventing the collection of notes and other indebtedness, for the purpose of obtaining by the plaintiff payment of a comparatively small claim. Such a use of the writ of injunction is not warranted; it would create a- greater wrong than it was intended to remedy.</p>

Gray, Mason, Balcom and Campbell, Justices. Application for peremptory mandamus. The board of commissioners of excise for the county of Otsego, in pursuance of the act to suppress intemperance, &c., passed April 16, 1857, received in that year, for licenses granted to persons residing in the town of Otsego, as appeared by averments in the alternative mandamus, the sum of $390, and paid the same over to the county treasurer, in pursuance of the 5th section of that act.

<p>In an action for maliciously and falsely obtaining an order of arrest against the plaintiff in another action, the complaint is defective where it omits to state that the order of arrest had been vacated, or that judgment had been rendered for the defendant therein, unless it appears that the order was a nullity áb initio.</p>

Demurrer to complaint. [1] [1] Complaint.—The plaintiff complains of the defendant, and for a cause of action avers, that on the ninth day of January, 1858, the plaintiff was duly appointed administrator of all and singular of the estate, goods, property, effects and credits of the above-mentioned Eliza Green, his wife; and the plaintiff then and there accepted and took upon himself the duties of said trust, and received letters of administration pursuant to said…

<p>In granting an allowance under the Code in case of a reference, the certiftcate of the referee furnished to the court to show what has been done in the case, is proper for that purpose. But the court grants the allowance in such cases.</p> <p>Where a motion for an allowance is made to a judge at chambers in the first district, on a notice of two days, and is opposed without objection as to the time of the notice, it cannot be again raised on a subsequent motion to set aside the order for irregularity.</p> <p>In the first district, all motions except for new trials may be made at chambers, and this includes motions for an allowance, which are required by the Code to be made by the court.</p> <p>Besides, an order made at chambers (in the first district) is always made during the term of the court, as a special term is always held during the hours of attending at chambers.</p>

<p>Motion to dismiss cemplaint.-</p>

Present: S. B. Strong, Emott and Birdseye, Justices. This action was commenced by summons issued by a justice of the peace for the county of Westchester, on the 26th day of January, 1856, returnable February 8 th, 1856, at which time the parties appeared, and the plaintiff filed his complaint in writing against the defendants as common carriers, for negligence in not delivering to one Sanford Hallock, at Mount Vernon, in said county, four barrels of flour and one barrel of…

Before Bosworth, Hoffman, Slosson, Woodruff and Pierrepont, Justices. This action was brought against the defendants upon a bill of exchange, drawn by the husband and indorsed by his wife, for $510.78.

Before Welles, Smith and Johnson, Justices. Appeal from order at special term, denying motion by defendants to set aside or modify judgment for plaintiff, by striking out or vacating all of the judgment relating to costs, &c.

Present: Welles, Johnson and Smith, Justices. Appeal from a judgment entered upon the report of a referee. The facts sufficiently appear in the opinion.

Motion to settle issues, &c. From the year 1844 to May, 1847, the plaintiff and the defendant Gurdon Grant, together with George Coffin, were partners in the lumber business at Troy and West Troy, under the firm of Grant, Coffin & Church. The defendant Freeman was also engaged in the manufacture of lumber at Glenns Falls, in the county of Warren.

<p>On an appeal from the decree of a surrogate, admitting or rejecting a will to probate, the supreme court have no inherent power to award costs, but must follow the directions of the statute in reference thereto.</p> <p>Therefore, on appeal from a decision of the surrogate admitting a will to probato, followed by a reversal upon a question of fact, remitting the question at issue to a jury for a new trial, is but a single stage of the proceedings in the cause, and the court cannot absolutely award costs to the appellant, upon such reversal. The costs of the appellant in such case must depend upon the final determination of the question in controversy.</p> <p>And where the appellant succeeds in reversing the decree of the surrogate upon a question of fact, but fails on a new trial to impeach the validity or execution of the will, he has no right to costs, but should pay costs to the respondent.</p> <p>And where on appeal, the decision of the surrogate is affirmed, and where it is reversed upon a question of law, then the court shall award costs to be paid by the party failing, or out of the estate of the deceased, as the court shall direct. (2 E. S. ith ed. §§ 19 and 20.)</p>

Joseph Keefe was cited to show cause why he should not be punished for contempt in arresting Fitton after he was discharged on the return of the writ of habeas corpus.

The plaintiff had a verdict at the Oneida circuit in November, 1856, and upon the taxation of his costs, the following facts appeared. The circuit was appointed to be held on the 20th of October, 1856, on which day, the presiding judge, without ti’ying any causes, adjourned the circuit till the 10th of November, 1856. Public notice of the adjournment had been previously given.

The complaint of the plaintiff in this action shows: That the said plaintiff has the lawful title as the owner in fee simple to the following described real estate situate in the city of New-York, in the county and state of New-York to wit: All that certain lot, piece or parcel of land, situate, lying and being in the city, county and state of Mew-York, on the northerly side of Twenty-ninth street, and between Lexington avenue and Third avenue, bounded, described and…

<p>Motion for costs against the defendants as executors.</p> <p>The action was brought upon two promissory notes alleged to have been made by the defendants’ testator. Before the suit was brought, the plaintiff presented his demand duly verified to the defendants, and demanded payment, which was refused. He then offered to refer the claim to three disinterested persons, to be approved by the surrogate, as provided by law. In reply to this offer, the defendants delivered to the plaintiff a stipulation in writing, whereby they offered and agreed to refer the claim to John Banker, Ephraim Ogden and Job Andrews, three impartial and disinterested persons, to be approved of by the surrogate. The plaintiff declined to refer the claim to the persons named, but served upon the defendants a notice wherein he renewed his offer to refer the claim according to the statute in such case provided, and to appear before the surrogate at such reasonable time as the defendants might name, to have the reference agreed upon and perfected. The defendants were further notified that their omission to ap* point a time for meeting before the surrogate, would be regarded as a refusal to refer. ISTo reply was made to this notice by the defendants. An action having been brought upon the demand, and issue having been joined, the cause was tried at the Rensselaer circuit in June, 1857, and resulted in a verdict in favor of the plaintiff, for the full amount of his claim. The plaintiff moved for costs against the defendants, both upon the ground that the payment of his demand had been unreasonably resisted, and also that the defendants had refused to refer the same, pursuant to statute.</p>

The plaintiffs having life interests in part of the property devised by Samuel Norsworthy, deceased, have brought this action to obtain a judgment directing a portion of such real estate to be sold, in order to pay off and discharge various assessments now laid upon the property, and for which they allege the property will be sold, if not soon redeemed therefrom by payment.

<p>In actions of slander the rule formeriy was, that when the words required a knowl-. edge of extrinsic facts, either to show their meaning or their applicability to the plaintiff, all such facts must be both averred and proved. The only change made by the Code in this respect, is to dispense with such averments of extrinsic facts, showing the applicability of the slander to the plaintiff.</p> <p>It is still necessary, as it formerly was, to aver and prove any facts necessary to explain the meaning of the words used. It is also necessary, of course, to al- ' lege that the words were spoken of and concerning the plaintiff.</p> <p>"Where the objection taken at the trial, is for the want of a material averment which the plaintiff must prove in order to sustain his action, unless the judge permits an amendment on the spot, the objection is as fatal as it would be onp ■ demurrer.</p> <p>But where the objection first taken on the trial is for the want of an innuendo, stating the meaning of the words, and tiiis question is fairly left to the jury, and they find them slanderous, the court ought not, after the verdict, to interfere. The verdict aids the defect, even if the want of such an averment would have been good cause of demurrer.</p> <p>And it is well settled that the meaning of the words used by the defendant, cannot be proved by the opinions of witnesses, or then statement as to how they understood them.</p> <p>In this case, the plaintiff was charged to have been a “ receiver of stolen goods,” which words were considered actionable per se. But a charge that “he had received stolen goods,” would not have been considered actionablejperse, without the additional allegation that he knew they had been stolen. Per S. B. Strong, Justice.</p>

This action was brought by the plaintiff against the defendants for the purpose of having-a certain judgment declared void as against the plaintiff.

<p>Where an appeal is taken from a judgment of a justice of the peace, to the county court, and the county court, as it is authorized to do by the 13th subdivision of § 30 of the Code, (in cases where the county judge is disqualified from hearing the appeal,) transfers the action to the supreme court, the appellant on the reversal of the judgment is entitled to the same costs only as if the reversal had been rendered by the county court, to wit: $15, together with the fees of officers, and disbursements.</p> <p>The allowance for costs on appeal, provided by the 5th subdivision of the SOIth, section of the Code, is only applicable to appeals to the supreme court. An appeal above mentioned is not made to the supreme court, but to the county-court, and is by operation of law transferred to the supreme court.</p>

<p>Motion to remove a cause into the circuit court of the United States.</p>

Action upon a promissory note. _ The action was tried by the court without a jury, and the facts were agreed upon and submitted by stipulation. A brief statement of facts will present the question. The plaintiff is an attorney of this court, and commenced an action in April, 1857, against the defendant to foreclose a mortgage, upon which there was due $760.

This is an action instituted in this district, for the purpose of disposing of certain questions involved in actions instituted in the eighth district, to foreclose two mortgages executed at' different times and on different parts of their road, by the Buffalo and New-York City Railroad Company.

James. Rosekrams and Potter, Justices. Tins is an appeal from an order of the special term, denying a motion to set aside a judgment. The motion was denied on the ground of laches alone. The action was commenced about the 1st of October, 1857, and the judgment entered on the 81st of December, 1857. The defendant was a non-resident of the state, living in the state of New-Jersey, and the service of the summons was claimed to have been made by publication under the Code.

The defendant having died, leaving a last will and testament by which Louisa La Farge and John Binsse were appointed his executrix and executor, and letters testamentary having been issued to them, they on an affidavit of these facts and on the pleadings, now move “ for an order to continue this action in the name of Laura Keene as plaintiff therein,” against them as such executrix and executor, “as defendants therein, and to declare said action to be in the same plight and…

Motion to set aside proceedings. These actions were commenced in the Troy mayor’s court, in March, 1857. Each action was brought upon a promissory note made by one Chichester, and indorsed by the defendants, - On the 4th of April, 1857, judgment was perfected in each action against all the defendants by default. The amount of the judgment in the first action is $312.39, and in the other $369.86.

Before Bosworth, Oh. J.r Huffman, Slosson and Pierrepont, Justices. The defendants move to dismiss an appeal taken by the plaintiff from an order, (made on the 19th of June, 1858,) sustaining a demurrer to plaintiff’s amended supplemental complaint. N This amended supplemental complaint was served pursuant to an order made December 22d, 1856. The defendants appealed from that order, arid demurred to the said complaint.

<p>Motion" for judgment of dismissal of complaint.</p>

Motion to amend notice of appeal. A verdict for the plaintiff on the trial of this action, was found hy the jury on the 31st day of May, 1856. Before judgment thereon was entered the defendant; moved at special term for a new trial. This motion rayas' de?, aied. The order denying a new trial was entered on ¿ihe 13th day of April, 1857.

Before Bosworth, Hoffman, Slosson, Woodruff and Pierrepont, Justices. Motion to dismiss appeal from order denying motion for a new trial. A motion for a new trial was made in this action before one of the justices at special term, and without argument, he decided to deny the motion. On the 13th day of April, 1857, the counsel for the parties appeared before the judge, for the purpose of settling the order.

<p>Motion by plaintiff for costs of action on judgment entered upon report of referees, and for an extra allowance.</p>

<p>Although a person cannot be arrested more than once by process out of different courts in the same state, for the same cause of action, the rule does not apply where the first process is absolutely void by reason of want of authority on the part of the court or officer who issued it</p> <p>Neither the marine court of the city of New-York, nor any of its judges, possess any power to Issue an order of arrest under section 119 of the Code.</p> <p>Where the defendant received as agent or attorney of the plaintiff, a specific sum of money for the specific purpose of paying it over to a certain insurance company, for interest and insurance due to them by the plaintiff, and while the money was in the defendant’s hands, the plaintiff demanded it back, and the defendant refused to pay it back, on the ground that the plaintiff had agreed in consideration of the performance of certain conditions by a third person, which was then in progress, the defendant might pay a portion of the money to such third person, and that by paying the money back to the plaintiff it would be violating such agreement, and the plaintiff thereupon procured an order of arrest for the defendant;</p> <p>Held, that although the defendant might not have acted in bad faith, or was guilty intentionally of any breach of trust, yet he was legally bound to refund the money to the plaintiff when he demanded it; he was merely the agent of the plaintiff, who had a right to dispense with such agency at any time. Motion to discharge arrest denied.</p>

The issues of fact presented by the pleadings had been, tried at a previous term, before Justice Johnson, and found in favor of the plaintiff, and an interlocutory decree made by him referring it to a referee to compute the amount due upon the bond and mortgage, and ascertain the situation of the mortgaged premises in the usual manner of such orders. The referee had made his report to which the defendant’s counsel had 'duly excepted.

<p>In order to ascertain and determine whether a defence is a demurrer or an crostver, it is only necessary to ascertain whether it requires that any facts should be proved, or not.</p> <p>A defect in a complaint may arise from having too many or too few parties; and either defect appearing on the face of the complaint is the subject of demurrer.</p> <p>"Where the defendants in a portion of their answer took the objection of a want of parties in the complaint, held that it must be considered as a demurrer, and as they could not answer and demur to the same count in the complaint, .they must elect which they would abide by.</p>

The complaint in this action showed by its allegations that Daniel Richards, for the purpose of securing the payment to Edward Belknap, of the sum of $4,755, with interest thereon, on or about the first day of March, 1850, executed and delivered to said Belknap, a bond bearing date on that day, in the penalty of $9,510, on condition that the same should be void if the said Daniel Richards should pay to the said Edward Belknap, Ms executors, &c., or assigns, the said sum…

Before Duer, Chief Justice, and woodruff, Justice. This action comes before the court at general term, on an appeal by the defendants from a judgment entered against them on the report of a referee.

Motion to vacate order. The action was brought by the plaintiff as a judgment creditor of James C. Forsyth, to set aside an assignment executed by the judgment debtor to the defendant Robert A. Forsyth. On the 24th of April, 1855, an order was made upon application of the plaintiff, directing that the question involved in the pleadings, whether or not the assignment was made with intent to hinder, delay or defraud creditors, should be tried by a jury.

<p>Before any proceedings can bo taken to remove a tenant, (where the relation of landlord and tenant exists,) from the demised premises pursuant to the act entitled 11 summary proceedings 'to recover the possession of lands," &c, (2 S. S. 155,) it is incumbent on the landlord to establish three additional facts by the affidavit upon which the proceedings are founded :</p> <p>1. That the rent reserved in the le se has become due and payable. 2. That its payment has been duly demanded. And 3. That default has been made in its payment. These facts must be properly stated, or the officer has no power to proceed. »</p> <p>When there is a personal covenant of the lessee for the payment of the rent, a demand of payment from him personally, either upon the land or elsewhere, will doubtless be a good demand within the meaning of the statute.</p> <p>In this case, the affidavit of the landlord stated that “ the sum of $350 was due and payable on the 24th day of September instant; that deponent on that day demanded said rent at the usual place of business of said Schenk, in the town of Eishkill, of his agent, who informed him that said rent could not be paid.” Held, that the affidavit was radically defective, and wholly insufficient to support the landlord’s proceedings. The demand was made at the lessee’s usual place of business, not on the premises, and of bis agent, without saying who tho agent was, or what was the nature of his agency.</p> <p>Restitution of the premises may be awarded to the tenant, although the lease contains a covenant that upon failure to pay the rent at the time appointed, the estate of the lessee, and all his interest in the demised premises should from thenceforth cease and be absolutely void. Such a covenant docs not determine the estate oí the lessee and make it absolutely void. It becomes by the omission to pay the rent voidable at the option of the lessor, for whose exclusivo benefit it applies, and a proper demand and refusal to pay must be shown to void it.</p>

Oh the 17th day of February, 1855, Gilbert Wright, senior, the father of the plaintiff, owned and occupied, in the town and county of Saratoga, a farm consisting of one hundred and fifteen acres of land; and on that day entered into a written agreement with the defendant in the following language: “It is agreed between Gilbert Wright, of the first part, and Joseph Mosher of the second part, as follows : the said Gilbert Wright agrees to let his farm where he now lives, to J.…

This action was brought by the plaintiff, claiming to be the owner of the leasehold estate at the corner of John and William streets, in… Held: and a demand of such rent shall have been made., or three days' notice in writing, requiring the payment of such rent or the possession of the premises, shall have been served by the person entitled to such rent, on the persons owing the same, in the manner prescribed for the service of the summons in the 32d section of this title.”…

C. L. Allen, James and Rosekrans, Justices. This is an appeal from a judgment entered upon the report of a referee.

<p>The notice .of appeal from, the justice’s judgment to the county court in this case, specified the grounds of appeal as follows: “ That material testimony offered on the trial was excluded;” that “material testimony was admitted which ought to have been excluded;” that “the evidence was insufficient on the question of damages, and that the judgment was against the law of the case.”</p> <p>Held, that these allegations of error were altogether too vague and general; they presented no particular points for review.</p>

The complaint in this action was upon a judgment rendered by E. Newton, Esq., a justice of the peace of the county of Niagara, on the 23d day of November, 1849, in favor of Enos Steele, against the above-named defendant for $25.97, damages and costs, which it was alleged had been assigned to and was owned by the plaintiff. The defendant denied the allegations of the complaint, and set up specially the statute of limitations as a defence.

<p>Present, Henry E. Davies, Josiah Sutherland and Henry Hogeboom, Justices.</p>

<p>Where one justice of a district sitting at special term, has judicially passed on a question raised on motion, another justice should not on a renewal of that motion, under leave given, take upon himself to pass adversely on the same point, but should deny the renewed motion, to the end that the judgment of the general term may be obtained.</p> <p>The mere making of a counter claim by a defendant, after arrest, is not per se ■ conclusive ground lor his discharge.</p>

Action for partition of lands. The complaint avers that the plaintiffs are seized and possessed, one in fee simple of the one undivided third part, and the other of one-eighth part of all the mines, ores, minerals and metals, lying and being upon certain tracts or parcels of land, situate in De Puyster, in the county of St. Lawrence, known and distinguished as lands, &c., describing them as lots Nos. 125 and 126 and 131, together with the right to raise, work and carry away…

This was an appeal by the defendants from a judgment entered against them in favor of the plaintiff, on the 13th of June, 1857, for $937.75 damages and costs. The cause was tried at the Kings circuit, in June, 1857, before Mr. Justice Birdseye and a jury.

<p>Motion to discharge order of arrest.</p>

<p>The defendant obtained credit upon these representations: “I am perfectly good and responsible for all the goods I may purchase ; I own in Jersey City the house and lots in which I am living, which I value at between five and six thousand; and I consider this good and sufficient for any goods I may buj-; I also own real estate in Williamsburgh, and I have other property.”</p> <p>The question was, whether this representation was false, and known by him to be so, when he made it.</p> <p>The defendant, without any change having taken place in his circumstances in. the meantime, about a month after such representations, made an assignment of all his property for the benefit of creditors; which assignment disclosed about double the amount of indebtedness, to the amount of property assigned.</p> <p>Held, that this exhibit of the defendant’s affairs implied upon its face, that the ■ representations mado by him were clearly false, and must have been known by him to have been so.</p>

This action was commenced before a justice of the peace, who rendered a judgment therein in favor of the plaintiff,- and from which judgment the defendants appealed to the Cortland county court. The county judge of Cortland county was incapable of acting in the cause, and for that reason the Cortland county court transferred it to this court. The question was raised whether the appeal should be heard at a special term or a general term of'this court.

This was an appeal from the judgment of a justice of the peace in Cortland county, to the county court of that county. The county judge was incapable of hearing the appeal by reason of the fact that he had been counsel for one of the parties in the matters out of which the cause of action arose; and he transferred the cause to this court, pursuant to the directions contained in section thirty of the Code.

Grover, P. J., Green, Marvin and Davis, Justices. Verdict subject to the opinion of the count at general term, upon a case to be made by the plaintiff.

<p>This was an action on the case, and the- defendant James K. Bowen, was acquitted, and a judgment recovered against Wells C. Bowen, and the defendant James K. Bowen, taxed a full bill of costs against the plaintiff, and this motion is for a re-adjustment.</p>

Grover, P. J., Green, Marvin and Davis, Justices. Motion for new trial upon exceptions. The complaint charged the defendant with taking and converting to his own use a large number of books, thetoroperiyof the plaintiff. The answer was, first a general denial. 2d. It alleged that the title to the property was in one Tyrrell, and that the sheriff took the property by virtue of an execution against Tyrrell, issued upon a judgment in favor of the defendant.

<p>Under section 29Í of the Code in proceedings supplementary to execution, an order “ enjoining and restraining the debtor from making any transfer or other disposition of his property, not exempt by law from execution, or from any interference therewith,” (and that section allows of no other or different order,) does not at all affect the right of the debtor to what he earns after the granting of the order.</p> <p>And where a defendant is ordered to show cause why he should not be punished as for a contempt in disobeying such an order, the affidavits must satisfy the court and show affirmatively beyond a reasonable doubt, that the money or property the defendant has received and paid out, &c., or any part of it was due him, or earned by him prior to the date of the order.</p>

Motion to discharge attachment in these suits against the property of the defendant Wilson, as a non-resident. Facts found by the court. On appeal November 27th, 1858. The defendant admits he was a resident of Norwalk, where he resided when he retired from business in New-York, and fixes his resolution to become a permanent resindent of New-York, to be in 1856. When he went to Norwalk, he went to reside on a farm belonging to his wife.

Present, Davies, Sutherland and Hogeboom, Justices. This was an action to recover the sum of $786, for the transportation of certain cattle over the plaintiff’s road from JDunkirk to Bergen, in September, 1854. The defence was that the promise to pay was by parol, and void by the statute of frauds. The trial was had before Justice Peabody, without a jury, on the 5th of March, 1857. He rendered judgment for the defendant, and the plaintiffs appeal to this court.

<p>Motion to set aside sale of portion of the Canandaigua and Miagara Falls Railroad.</p> <p>At Leroy, in Genesee county, this road approached a mill race upon a high embankment, and crossed the race at right angles upon a stone culvert. The embankment was some 100 feet in width at its base, and the culvert some 70 feet in length. This mill race led to a mill some distance north, which at the time of the construction of the railroad was covered by a mortgage, which also embraced the mill race to its head. The railroad company entered upon the premises in 1852, under a contract of purchase from the owners of the fee of this mill property, race way, &c., and constructed said embankment and culvert for their railroad, and have since occupied the same for the purpose of such road. The track of the Buffalo, Corning and ¡New-York Bailroad Company, also crossed this mill race at another point. The plaintiffs commenced a suit in this court to foreclose their said mortgage, making the two railroad owners and others parties, and obtained the usual decree of sale. The owners of both railroads appeared in the suit, but on the sale the agent and attorney of the owners of the Canandaigua and ¡Niagara Falls Bailroad failed to be present through an accident, and the premises were sold in parcels. The mill property, including all the rights and casements in relation to the mill race for about $7,000, leaving a deficiency of $2,300, for which the strip of the Canandaigua and ¡Niagara Falls Bailroad consisting of the stone arch and a few feet of the embankment leading to it, excepting the mill race and the right and easement thereof for the use of the mill, and the flow of the water thereto, was sold to Thomas Brown,-who gave his note to the mortgagees therefor, payable in six months.</p> <p>The motion was now made to set aside the sale, upon various allegations of mistake, unfairness, concealment and surprise, and other grounds.</p>

<p>Present, Gray, Mason, Balcom and Campbell, Justices.</p> <p>Proceedings were instituted in the Broome county court, by Thomas Cary, as overseer of the poor of the town of ISTanticoke, to have Henry Smith declared an habitual drunkard, and for the appointment of a committee of his person and estate. An inquisition was taken and returned to the county court, finding Smith to be an habitual drunkard, and incapable of conducting his own affairs.</p> <p>The petition of the overseer of the poor upon which the proceedings were founded, and the inquisition, both showed that Smith had property situated in the county of Broome, of the value of about four thousand dollars. Upon the return of the inquisition to the county court, counsel for Smith opposed the confirmation of the same, on the ground that that court had no jurisdiction to entertain the proceedings. First. Because the amount of property belonging to Smith, as appeared in the proceedings, exceeded two hundred and fifty dollars; and secondly. Because, the petition of the overseer of the poor, on which the commission was issued, by virtue.of which the inquisition was made, did not state facts sufficient to give jurisdiction ; and because sufficient facts and circumstances were not shown by affidavits or otherwise, to warrant the issuing of the commission. And upon those grounds, Smith’s counsel asked the county court to dismiss the proceedings. But that court refused to do so, and held .that it had jurisdiction of the proceedings, and would entertain and proceed with the same.</p> <p>Smith appealed from the decision of the county court to this court. He served notice of his appeal on the county judge of Broome county, and filed his petition of appeal to this court, in the office of the clerk of that county, in which petition he made the overseer of the poor respondent. The overseer filed his answer to such petition, in the same clerk’s office; and the case has been argued upon the notice of appeal, petition of appeal, answer of the overseer of the poor thereto, and the return of the county judge and county court, to the notice of appeal.</p>