Volume 16 — Jones & Spencer's New York Superior Court Reports

Appeal by defendant from a judgment in favor of the plaintiff, entered upon a verdict for $21,915.81. The following facts appeared by the admissions in the pleadings and the testimony on the trial: On March 9, 1870, the plaintiff, keeping a bank account with the defendant, drew and delivered to William Thomas Thomson and William M. Ramsay a check for $17,500, which was made payable to the order of Mrs. Margaret Halpin. On the same day the check was certified by the defendant.

66, entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial. The facts are stated in the opinion.

<p>Appeal from judgment entered upon the report of a referee.</p> <p>The facts are stated in the opinion.</p>

<p> Discontinuance of action—right to. </p> <p>Plaintiff is not entitled to discontinue, as of course, on payment of costs, after verdict by jury or decision by the court. Erom the time a determination has been reached, defendant’s right to enter the formal judgment or decree becomes superior.</p>

Appeal by defendant, William P. Earle, from an interlocutory judgment rendered at special term, requiring him to account as executor and trustee. The facts as found by. the court are substantially as follows :— Morris Earle died May 7, 1859, leaving a large estate.

The complaint alleges that the defendant, a railroad corporation organized under the law of the State of Connecticut, by maintaining a locomotive engine-house adjoining the plaintiff’s house, creates a nuisance and damages her property.

The action is to recover for injuries to the person of the plaintiff through the negligence of the defendant, on April 18, 1877. It was commenced on January 15, 1880. The defendants pleaded the one year’s statute of limitation, and the reply was that she had three years under the Code of Civil Procedure, and that the period had not elapsed when the suit was brought.

On June 8, 1878, John J. Mastín, a member of the firm of John J. Mastín & Co., and also cashier of the Mastín Bank, a corporation doing business as a banking house at Kansas City, in the State of Missouri, drew at St. Louis four drafts on the defendants, amounting to §35,000, in the firm name of John J. Mastín & Co., and payable to the Mastín Bank, to raise money for the benefit of the Mastín Bank, which was in need of funds.

The facts found by the referee, as stated by the court, are as follows: “1. That the plaintiff, George W. Wood, is a lawful child of the defendant, Maria Mulock, by John Wood, her first husband, and that said defendant is the daughter of John W. Gilbert, late of the ciiy of New York, deceased, who died prior to the year 1854. “ 2.

<p> Co-partnership—liability as partner, of one not member of the firm. </p> <p>It is only where one held forth to the world as partner, is so held out by his direct authority or connivance, that the rule is, that he is so held out to every creditor or customer. In other cases, the liability of one not a member of the firm, and sought to be charged as such, rests upon the principle of estoppel by conduct ; and, while it is immaterial whether or not he share the profits and losses, and no particular mode of holding" out is requisite, yet it must appear that he has done something which he had no right to do, and which was calculated to, and did, create a belief that he was a partner, and that plaintiff was actually misled thereby. This is especially so where the particular holding out complained of rests on negligence alone.</p> <p>The above principles applied to the facts in this case and defendant held entitled to a dismissal of the complaint.</p>

<p> Marine insurance —implied warranty of seaworthiness—evidence of unseaworthiness. </p> <p>That a canal-boat, upon arrival in port, after a voyage of forty-eight hours, without having encountered storm, stress of weather or other peril of the sea, in fine weather and smooth water, and though properly loaded, suddenly sank at her dock without apparent cause, and in such a way that in going down she looked as if she broke in two, is presumptive evidence of unseaworthiness at the time of sailing.</p> <p>Rogers v. Sun Mutual Ins. Co. (46 Super. Ot. 65), followed as to • implied warranty of seaworthiness by effecting insurance, etc.</p>

Appeal by defendant from judgment of $674.17, entered upon the verdict of a jury, and from order denying motion for new trial. The facts appear in the opinion.

Appeal by defendant Hutchitison from order denying his motion to vacate an order for the examination of the defendant Hogg.

This case comes before the court upon exceptions, directed to be heard in the first instance at general term. The action was claim and delivery, to recover the possession of a mare and her paraphernalia. The defense was that the mare belonged, not to the plaintiff, but to her husband, Thomas B. Armitage, and that the defendant had a lien upon the animal under the stable-keeper’s act.

The action was for the recovery of the sum of $250, alleged to have been deposited by the plaintiff, as security for the x>erformance of his contract, upon a purchase of five hundred tons of coal from the defendant, at auction, on September 27, 1876.

<p>Appeal from an order denying a motion to punish defendant for contempt. The facts are stated in the opinion.</p>

The action was brought for a partnership accounting, to open and correct accounts that had been stated and then to state the account generally. The facts are stated in the opinion.

Appeal by plaintiff, from judgment entered upon the decision of a judge at special term. The action was brought to have appraised, the value of a building on a lot of land, in order that the plaintiff might pay or tender the amount to the defendant in accordance with the covenants of a lease, to the terms of which lease, the parties to this action were respectively bound.

On the trial, it appeared that the plaintiff had furnished, in his own house, board and lodging to the defendant when she was an infant. She had arrived at age before action begun. The board and lodging were furnished at the express request of the general guardian of the defendant. The defendant had means consisting of real property. The defendant had made no express request that the board be furnished, or promise to pay the value of the board.

Appeal by plaintiff from judgment in favor of defendant Clark, dismissing complaint against him. Appeal by defendant Banta from judgment against him, in favor of plaintiff entered on verdict of jury. The plaintiff was a hod-carrier employed to carry bricks, &c., to a scaffold on a building which the defendant Banta was erecting under a contract between him and the owner, defendant Clark. The plaintiff was hired by Banta.

Appeal by defendant from judgment entered upon the decision of a judge at special term. The action was for accounting, under two written contracts. By the first, the plaintiff, as owner of letters patent No. 66,065, dated June 25,1867, and re-issue, No. 7,388, dated November 7, 1876, licensed the defendant to make for one year, wire bale ties, as described in the patents, and the defendant promised to pay a certain royalty.

Appeal by defendant from an order requiring the defendant to deliver to plaintiff’s attorneys copies of certain papers referred to in answer of defendant.

On a case agreed upon between the parties, pursuant to section 1279 of the Code of Civil Procedure. The husband of the plaintiff died, leaving her, his widow, and four minor children. By his will, he appointed as its executor his friend James Duff, and its executrix, his wife, the plaintiff. The will devised to them, after a specific legacy to his wife, all his estate, real and personal, in trust among other things for the benefit of his children.

Appeal by the plaintiff from an order granting an extra allowance of $.2,000, and from a judgment adjudging that the complaint be dismissed, that the defendants Reardon and Richard S. Treacy recover of the plaintiff, as receiver of the property of Edward Reardon, $124.68 taxable costs, and the further sum of $2,000, granted as an extra allowance, and that Ferdinand Kurzman as receiver in this action, pay to the said Reardon and Richard S. Treacy the balance in his hands,…

Appeal by plaintiff from judgment dismissing complaint, and from order denying motion made upon the judge’s minutes for a new trial.

The action was at issue, and was noticed for trial at the January term, 1875, by the plaintiff, and placed on the calendar of jury causes for that term, where it remained until 1878. The defendant never noticed the case for trial. ' The complaint was dismissed January' 3, 1882, for want of prosecution, and defendant noticed his costs for taxation.

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury rendered pursuant to the direction of the court.</p> <p>The facts appear in the opinion.</p>

<p>Submission of controversy to general term on a case agreed upon.</p> <p>The facts appear in the opinion.</p>

The facts as stated by the court are as follows : On November 19, 1866, the plaintiffs leased the premises 3, 5 and 7 White street, for twenty-one years from May 1, 1867, to one Sturgis ; the lease contained a stipulation on the part of the lessee to erect a building, to cost not less than $30,000, the lessors agreeing to pay one-half the value of the building at the expiration of the term ; and upon payment the building was to belong to them; the lease was assigned to one…

Exceptions ordered to be heard in the first instance at the general term. ’The complaint alleged that the defendants, as stockbrokers, purchased for the plaintiff, on July 1, 1878, two hundred shares of the capital stock of the Central Railroad of New Jersey, for which the plaintiff paid, the price, and that the defendants held said stock for the plaintiff ; that on August 23, 1878, the defendants, being in pecuniary difficulties, and intending immediately to suspend payment…

The complaint was as follows: “I. That on or about the 19th day of May, 1880, in the city of New York, the defendant, Benjamin A. Willis, an attorney at law, in said city, made with the plaintiff a certain agreement or contract in writing, wherein, in consideration of the sum of $24,000, to be paid to him as therein set forth, by the plaintiff, the said Willis did contract and agree with the plaintiff to sell to said plaintiff three certain lots of ground on the south side…

<p>Municipal corporation—right of recorder to make orrenew lease for New York city. — Offer of judgment—how applied.—Estoppel.—Res adjudicata.</p> <p>The plaintiff sued the city to recover rent for certain premises for a period ending November 1, 1877, in which action the court of appeals held that the original letting to the recorder was with sufficient authority, and that the holding over, under the circumstances, made -the defendants tenants from year to year, until May, 1877. After that decision, in January, 1881, the defendants offered to “ allow judgment to be entered against them for the principal sum of $1,000, with interest on $500 thereof from the 1st day of February, 1877, and interest on $500 thereof from the 1st day of May, 1877,” besides the costs. The plaintiff accepted the offer, and then brought this action to recover the rent from May 1, 1877, to May 1, 1878. It appeared upon the trial that the board of aider-men, in December, 1876, adopted a resolution setting apart, forth e recorder, rooms in a building belonging to the city. There was no proof that this resolution was brought to the notice of the plaintiff. It appeared that the rooms designated were not ready for occupancy until the latter part of June, 1877, and that the recorder continued in possession of plaintiff’s rooms until July, 1877.</p> <p>Held (affirming judgment dismissing the complaint),</p> <p>1. That, without authority from the board of aldermen, or such acquiescence in his holding overas would amount to a ratification, not only was the recorder without authority to take a lease, but he was equally without authority to create an implied'renewal of a lease by holding over after the expiration of a term; and the resolution of the board of aldermen having been passed three months before the beginning of a current year, there was nothing from which the acquiescence of the municipal authorities to a renewal of the lease could be inferred.</p> <p>2. The offer of judgment in the former suit, being a general one to compromise the claim sued upon, and there being no evidence to show that the offer was for the two first named quarterly installments, it could not be considered as relating to a particular part of the claim on which the suit is brought; and the judgment entered upon the offer to compromise did not constitute an adjudication upon the rights of the parties, with reference to the subject-matter in litigation, so as to create thereafter an estoppel to a denial by the defendants of a tenancy after May 1, 1877.</p> <p>3. The claim for rent falling due August 1 and November 1, 1877, having been made a part of the plaintiff’s cause of action in the former suit, compromised by the offer, became merged in the judgment entered therein; so that the plaintiff’s action in this case, so far as that portion of his claim is concerned, is barred by that judgment.</p>

Whitehouse, who has died since the action began. The complaint was entitled “ Mansfield Compton v. John O. Whitehouse and Henry Elliott, and John O. Whitehouse and Henry Elliott, as executors of the last will testament of Joseph O. Whitehouse, deceased, and Henrietta Hollingshead and Charles Aikman, as executors of the last will and testament of William M. Hollingshead, deceased.” It alleges that in September, 1867, Joseph T. White-house and William M. Hollingshead, as…

Appeal by the plaintiff from an order overruling demurrers to defenses alleged in the answer, and from the judgment entered upon such order. The complaint alleged that on September 8, 1867, Joseph.

<p> Attorney and client—costs belong to client—false representation as to amount collected—settlement between.—Nonsuit—power to direct. </p> <p>Under the Code, the costs in an action belong to the party; the attorney has simply a lien for the amount of his compensation, whether measured by the costs or otherwise.</p> <p>Upon settlement with his attorney, a client is justified in relying upon the attorney’s word as to the amount collected on the judgment, without doubt or inquiry as to the accuracy or verity of the statement.</p> <p>That an attorney, upon a settlement with his client, represents that the sum recovered under a judgment, was an amount equal to the original claim and interest, whereas including costs it was a much larger sum, and the client, believing and relying upon such statement, accepts said first named amount in settlement—furnishes ground for an action of deceit against the attorney.</p> <p>The power of a judge to direct a nonsuit is limited to a case where there is no evidence to support- a verdict for plaintiff, and where no-inferences can be drawn from the undisputed evidence favorable to plaintiff.</p>

Appeal by plaintiff from judgment dismissing complaint, entered upon decision of judge at trial term, a jury having been waived. The plaintiff and defendant entered into a contrac t in writing, whereby the defendant was to allow the plaintiff to place certain advertisements in the cars of the company, for two years, to end on December 30, 1878, and the plaintiff was to pay $100 monthly. The parties proceeded under the contract down to December 30, 1878.

Motion to dismiss an appeal. While the plaintiff was riding in a car of the Sixth avenue Railroad Company the head of a horse driven for the Twenty-third street Railroad Company broke through the window, and portions of the glass struck the plaintiff’s eye and injured it so that it was necessarily taken out, and he sued the two roads jointly to recover damages for the injury, alleging that each was negligent.

This is an appeal from an order at the trial term dismissing the complaint, and from the judgment entered thereupon. The action was brought to recover from the defendant, as one of the trustees of the McKillop and Sprague Company, a debt of the corporation, under section 12 of the act of 1848.

<p> Special vei'dict—right of court to disregard same. </p> <p>The Code of Civil Procedure has not changed the rule that the office of a special verdict in equity is to inform, the conscience of the court, and that on the final hearing it may be disregarded.</p>

Exceptions ordered to be heard at general term in first instance. Action to recover damages for breach of .covenant. The facts are stated in the opinion.

Appeal by defendant from an order denying a motion to strike from the complaint irrelevant and redundant matter. The complaint, as a first cause of action, alleged tiiat the defendant, on September 27, 1872, delivered his promissory note, payable to plaintiff or order, for money loaned to defendant by plaintiff.

Appeal by plaintiff, from judgment that complaint foe dismissed. The action was on written contract by which plaintiff sold to defendants “onehundred tons of pig iron, to be shipped by sail in December, 1879, or January, 1880, at seller’s option, and to be delivered ex ship in New York, etc.” On February 2, plaintiff notified defendants that he was advised that the iron so sold had been shipped January 12, per ship Blomindon’ ’ from Great Britain., to New York.

Appeal by defendant from judgment entered upon verdict in favor of plaintiff. The action was upon a policy of insurance. A cargo of potatoes upon a canal boat was insured. “ free from particular average ” until safely landed at Yonkers, on the Hudson river. The boat arrived and was moored to the dock. After 109 barrels of potatoes were safely landed, an unusual wind drove against the boat cakes of ice, and did such hurt to her that she sank and was almost entirely submerged.

Exception by defendant to a direction by the court that the jury find for plaintiff, ordered to be heard in first instance at general term. The plaintiff claimed to recover, in this action, a balance of salary, alleged by him to be attached to a subordinate place in the fire department of New York city. The facts appear in the opinion.

Appeal by defendant from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial made upon the minutes. The facts appear in the opinion.

The plaintiff, on May 25, 1878, was in the employ of the defendant as a laborer, and as such engaged in the work of putting in oats on the third floor of defendant’s depot, when part of the floor gave way and fell, in consequence of which the plaintiff fell with it and sustained serious injury. He brought this action, alleging negligence in the defendant, to recover $30,000 damages.

<p> Muncipal employee—removal—action for salary.:—Pleading. </p> <p>The complaint herein alleged plaintiff’s appointment by the Board of Police Commissioners, in December, 1879, as foreman in the Bureau of Street Cleaning at $900 per annum; that he performed all services required of him until March 30, 1881, when he was duly removed ; that he was paid therefor at the above rate for the whole period, excepting two months and twenty-eight days, and demanded judgment for the amount of plaintiff’s salary for that time. The answer admitted the non-payment of salary for said period, and denied the other allegations, as to which it admitted only, “that between October 19, 1880, and March 30, 1880 (the period referred to in the complaint), the plaintiff was an employee of the Bureau of Street Cleaning, performing services in said Bureau for which he was paid at the rate of $900 per annum;” and as a separate defense alleged that plaintiff was duly removed and notified of his removal on July 22, 1880, and performed no services between said date and October 19, 1880.</p> <p>Held, that the burden of proof was upon plaintiff to show an appointment or employment of such a nature or for such a period as entitled him to salary irrespective of rendition of services; and that it cannot be held on the pleadings, that plaintiff was an officer within the meaning of the charter whose salary was fixed by statute and annexed to the office so that the Board of Police Commissioners had no control over it.</p> <p>Whether an appellate court has the power to disregard a point which clearly appears from the record and is pressed upon the appeal, because it was not specifically made below, qumre.</p>

Appeal by plaintiff from judgment rendered by-jury, under direction of the court in favor of the defendant.

<p> Revival of action, both parties being dead. </p> <p>The provisions of the Code directing the continuance of an action by or against the representatives of a party to the action who has died since the commencement thereof, do not include a case where all the parties are dead at the time of the motion, and by the common law such action abates.</p>

<p>Certiomri—duty of court upon—when proper.—Board of Health—duty to record births and to hear application therefor.—Laws 1880, chap. 269—construction of.</p> <p>The proper mode of reviewing the action of the Board of Health of Hew York city in refusing to register the births of children as provided by chapter 259 of the Laws of 1880, is by writ of certiorari.</p> <p>Said law being remedial, and one which affects the public, and also a rule of evidence, the provision therein, that births which fail to be recorded through neglect, may be recorded by said Board, in a special book, etc., applies to all births whether before or subsequent to the passage of the act.</p> <p>The Board of Health is bound to examine and pass upon such application upon presentation of the proper facts; and it is no defense to a refusal so to do, that the relief prayed for is in contravention of a rule of the board adopted by it.</p> <p>Though the language of the statute is permissive, as it affects public interest, the duty of recording such births is obligatory upon the board, when the statutory proof is made. Per Aenoüx, J.</p> <p>The statute provides that the entries of such unrecorded births shall be made in a special book, and therefore, they do not fall within the meaning of that clause of the second section of the act providing that “ no change or alterations shall ... be made in the records . .without proof satisfactory to and upon the approval of the said board,” and consequently the board has no general discretion thereunder to deny such application. Per Aenoüx, J.</p> <p>The powers and duties of said board, and the practice to be followed in such examinations, considered by the court.</p> <p>The principles governing the court in the considerations of matters brought before it upon certiorari, stated.</p>

<p>Appeal from judgment dismissing the complaint at the trial, and from an order denying a motion for a new trial.</p> <p>The facts appear in the opinion.</p>

Appeal by defendant from judgment rendered on decision of a judge at special term. Action for the specific performance of a contract to purchase real estate. The plaintiffs contracted to sell, and the defendant to purchase, the premises known as 13 West Thirty-second street in this city, for the sum of $40,000.

Exceptions by plaintiff, ordered to be heard in first instance at general term; The action was for injuries to real estate, owned by testatrix and alleged to have been- done in her lifetime. Among other defenses the answer set up the statute of limitations. The question was whether, under the Code of Civil Procedure, section 9, article 1, title 3, chapter 8 of part 3 of the Revised Statutes (2 Edm. 467 ; 3 Banks' 6 Ed. 733), continued in existence, as to actions by executors.

<p>I. Corporation.</p> <p>1. Ultra Vires—Two Phases.</p> <p>1. One where the public is concerned—as when the act- is in vioviolation of a peremptory statute, or rule of law.</p> <p>2. The other, where only the corporate body and its stockholders, or it and its stockholders and third persons dealing with it and through it with them, are concerned—as when the act is contrary to a directory statute.</p> <p>2. Effect of this distinction with respect to the standing of a plaintiff.</p> <p>(aa) If the act complained of falls within the second phase, a judicial discretion exists to grant or refuse the rigid enforcement of a directory statute, according as good faith and the circumstances of the case require. The plaintiff must have a standing in equity to be heard and his position must commend him to the conscience of the court.</p> <p>(b) If the acts falls within the first phase, the court will proceed for the sake of the public, irrespective of the parties, and equity will follow the law and is peremptory.</p> <p>3. Stock dividends unlawful.</p> <p>1. The declaration by a corporation of this State of a dividend payable in stock of profits already invested in the acquisition of property, or the improvement of property already on hand, or otherwise, for the benefit of the company, falls within the first phase.</p> <p>The issue of certificates representing such stock dividend also falls within it.</p> <p>4. Stock to purchase other property with.</p> <p>Telegraph Companies.—Under the laws of this State a telegraph company may issue stock for the purchase of the property, etc., of any telegraph company, organized under the laws of this or any other State, upon complying with certain statutory provisions.</p> <p>II. Agreements.</p> <p>1. Lawful and unlawful provisions in, effect of.</p> <p>Where the various provisions are so intimately connected as to constitute a single and entire scheme, it cannot be upheld in part and rejected in part. The whole agreement must be rejected.</p> <p>III. * Application of above principles.</p> <p>The Western Union Telegraph Company, on January 19, 1881, entered into an agreement with the American Union and Atlantic- and Pacific Telegraph Companies for the purchase by it of the-property, etc., of the other two companies at certain prices payable in its stock, amounting in the aggregate to $23,400,000. The-agreement provided that the capital stock of the Western Union should be increased by $38,926,590, represented by shares of $100, and such increase should be distributed as follows: $15,526,590, to holders of its present shares, the same being to represent Reinvestment of earnings in the purchase, construction and equipment of additional lines, wires and general plant since the 1st day of July, 1866, and the remaining sum of $23,400,000, for the acquisition of the property, etc., of the American Union and Atlantic- and Pacific Telegraph Companies. It also provided that the amount of $58,855.50, parcel of the then capital stock of said Western. Union Company, owned by it and then in its treasury, should be-distributed in like manner to its shareholders. After the agreement had been entered into, and after the shareholders had approved of the investments of the earnings, the plaintiff, on January-22, purchased his stock. Within a few days after January 19, three-fourths of the shareholders assented to the increase of the-stock, then another agreement was made providing there should be an immediate delivery of the property and payment of the consideration so far as that could be done. This was done, and the-property was delivered and payment was made, not in the strict terms of the original agreement, because the statutory limit of" publication of notice for the increase of capital stock had not expired, but in the obligations of the company redeemable in stock. After this, on February 5, a stockholders’ meeting was held, at. which there was full and formal ratification of the above agreements, and an approval of the proposed increase of stock, by votes-representing more than three-fourths of the shares then outstanding.</p> <p>After all this, the plaintiff, on Feb. 12,1881, commenced the action.</p> <p> Held, </p> <p>1. That, unless the acts complained of fell within the first phase of" ultra vires acts, the plaintiff had no standing in court.</p> <p>2. That the contemplated acts of dividing among the stockholders of the Western Union shares of stock as representing investment of earnings, and issuing certificates representing the stock so to-be divided, fell within the first phase 'of ultra vires acts, were unlawful, and in violation of peremptory statutes, and therefore-plaintiff was entitled to maintain the action.</p> <p>3. That the issue of the stock which was issued for the purchase of the property of the other companies was lawful.</p> <p>Judge Arnoüx as to this dissented, holding:</p> <p>1. That the object of the purchase was clearly shown to have been “ the suppression of competition,” and that the letter of the law did not authorize a purchase for that object, and intimating that, even if it were authorized by the letter, yet that it did not fall within the spirit, and that the letter must yield to the spirit.</p> <p>2. Because it was to be distributed by the Western Union among the shareholders of the selling companies, which is unlawful.</p> <p>4. That the different provisions of the agreement of February 19, were so intimately connected that it could not be upheld in part and rejected in part.</p> <p>5. That the plaintiff was at least entitled to an adjudication declaring the illegality of the agreement of January 19, 1881, and enjoining the distribution of the $15,526,599 of stock.</p>

<p>Appeal from judgment dismissing complaint with costs, and from the order granting an allowance.</p>

Appeal by plaintiff from order granting motion, made by defendant to set aside an order of arrest. The plaintiff had begun an action in the common pleas, in contract, for the same cause of action relied on in this action. A Stilwell warrant was issued and executed in the common pleas. The defendant afterwards filed a petition in bankruptcy.

<p> False representations—statement that accounts are good, import and effect of—evidence to show falsity.—Tort—waiver of. </p> <p>In an action for damages from false representations, whereby it was alleged plaintiff was induced to advance a certain sum in return for an assignment of divers book accounts, together with a note of the defendant Proal of the same amount, the alleged representation being “ that said accounts were perfectly good ” and “ could and would be collected in time, to pay said note before it became due and the proof being that the defendant Proal stated that the accounts were good, giving his reasons for so believing, and that the defendant Pool went over the accounts one by one with plaintiff, stating each man to be good, except some few as to whom he gave no opinion.</p> <p>Held, that defendants were entitled to a charge that defendant Pool did not, as matter of fact, state that all the accounts were good; 1, because an allegation that an account was represented to be good, is not supported by proof of a representation that the person charged by the account is good; 2, because he made no representations whatever, as to many of the accounts.</p> <p>It seems, that the representations alleged are merely expressions of opinion ; but if an action thereon can be maintained, it is only on the theory, that they related to the actual indebtedness and pecuniary solvency, at the tiine of the representations, of the persons charged.</p> <p>The testimony of a collector to whom they were given, showing that after the use of diligence only a small portion of said accounts had been paid, such testimony consisting of an account of failure to get replies from some, a denial of liability from others, further promises from others, which were not kept, etc., is not proof of the falsity of such representations ; and the declarations of the parties to the collector, are not evidence against the defendants, of the truth of the matters declared.</p> <p>Upon the maturity of the above note, plaintiff surrendered it, and accepted a new one for the same sum, less the amount of the collections made on the accounts, and repeated said transaction at the maturity of the new note.</p> <p>Held, that thereby plaintiff waived any cause of action in tort which he may have had upon the alleged false representations.</p>

Appeal by defendants from a judgment in favor of plaintiff, entered on a verdict of a jury, as directed by the court.

In May, 1872, defendant called upon plaintiff at Ms office, and informed Mm that he, defendant, knew where he could-buy certain shares of stock in the New York Waterproof Paper Company for plaintiff, at $9 per share, and that the same could not be had for any lower price. Plaintiff told defendant that he might buy said stock for him, and upon the same day defendant procured certificates for the shares and delivered them to plaintiff, who paid therefor.

<p>Appeal from order.</p> <p>The facts appear in the opinion.</p>

Plaintiff contracted to buy certain lots of defendant and to give other property and cash in payment. The plaintiff’s counsel objected to defendant’s title to the lots in question, claiming that an undivided interest in the premises was still outstanding in certain heirs who were of the half blood to the original owners, and the defendant’s counsel contended that the half blood was-excluded by statute.

<p>I. Counter-claim—Tort to Contract.</p> <p>1. Landlord and Tenant.</p> <p>(a) In an action against a tenant after his dispossession for rent, accrued prior thereto, he cannot counter-claim damages arising from a tortious withholding by the landlord, having its inception subsequent to the dispossession, of personal property remaining in the premises after the dispossession.</p> <p>II. Pleading.</p> <p>1. Tortious taking or withholding, when not pleaded.</p> <p>(a) A pleading which alleges that “A. took possession of . . . . (certain chattels) and has detained and kept the same, and agreed to pay whatever the same were reasonably worth, but has not paid for the same, and that the same are reasonably worth the sum of $-” does not state a cause of action, or a counterclaim, in tort.</p> <p>III. Lessor and Lessee.</p> <p>1. Implied promise to pay for appliances put in by tenant, WHEN NOT RAISED BY THE LAW.</p> <p>(a) S. leased two certain lots from J. covenanting to erect there on a building of a certain description. The lease provided that at the expiration of the term, the building was to belong to the lessor upon payment of half of its appraised value, or the lessor might give a new lease at an appraised value, and that the building should belong to the lessor at the end of that lease. S., at the same time, leased from another party certain lots, forming with the first one an L. This lease contained precisely the same covenants as the.one from J. S. erected a building covering all the lots. He planned the building, and provided it with certain appliances, e. g., an elevator, a. steam heating apparatus, etc., part being in first set, and a part in the second set of lots. These were in the building when it was accepted by the tenant, were always used by the various sub-tenants, were substantially attached to the building, and cannot be removed without considerable injury. The assignee of S. mortgaged the land to B. The appliances were not mentioned in the mortgage. Afterwards, B. foreclosed and bought in. Afterwards, Mrs. S. H. Jewell, to whom J. had devised one of the lots leased by himtoS., in connection with the owner of the other lot dispossessed B., and under the warrant of dispossession, they were put into possession of the premises with the said appliances thereon ; and they made leases, including the use of the appliances, to persons who as sub-tenants were in possession at the time of the dispossession.</p> <p> Held, </p> <p>1st, that the law would not imply a promise by the lessors or those claiming under them, to pay the reasonable value of the appliances;</p> <p>2nd, if there was an implied contract to pay, it was a joint one of Mrs. Jewell and the owner of the other lot; and therefore a cause of action on it could not be counter-claimed against a cause of action which only Mrs. Jewell had.</p> <p>2. Tort-feasor, as to appliances, when lessor not.</p> <p>(a) In the case above put, even conceding that the appliances did not constitute part of the building, the mere taking possession of them by the lessor with the building, she not disposing of them, but leaving them in the possession of the sub-tenant.</p>

Appeal by the plaintiffs from an order of the special term denying their motion for the continuance of an Injunction during the pendency of the action. The facts are stated in the opinion.

By certain conveyances the plaintiffs became the owners and lessors, and the defendant the lessee, of certain premises in Forty-sixth Street, kept as a livery stable.

In May, 1870, the plaintiff, Andrew Knauer, took - from the defendant an endowment insurance policy guaranteeing the payment of the sum of $2,000 at the end of fifteen years from the date thereof to him, or, in case of his prior death, to his wife, Katie Knauer. The premium upon this policy was $139.38 per annum, payable in quarterly installments. He paid the premiums up to and including the quarterly premium due January 27, 1874.

Appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was for damages for the alleged negligence of the defendant, whereby the plaintiff’s intestate lost his life. The defendant is a corporation owning a dry dock and engaged in the business of repairing vessels. The plaintiff’s intestate was in the defendant’s employ as a laborer.

The action was commenced on February 13, 1882, and was brought to dissolve a partnership, which plaintiff alleged existed between him and the defendant, for a receiver, and for an accounting. The facts are stated in the opinion of the court at special term, which is as follows:

Exceptions ordered to be heard in first instance at general term, complaint having been dismissed The complaint averred that “ at all the times, hereinafter mentioned they were and still are copartners, doing business in the city of New York, under the firm name or style of Pollard, Pettus &Co.;” that defendant duly made, executed for value received, delivered to the plaintiffs, his certain promissory note, as follows: “New York, January 3, 1877. “Two years after date I…

This action is brought to obtain an injunction restraining the defendant-, as Commissioner of Public Works of the City of New York, from placing a water-meter upon the premises of the plaintiff, known as Nos. 26, 28, and 30 Frankfort street, in said city. The facts are stated in the opinion.

<p>Motion for the continuance of an injunction restraining the defendants from filling in the space on the south side of plaintiff’s pier at Forty-third street, ■on the North river, in the city of New York.</p>

<p> Contract to manufacture machine—breach of—measure of damages. </p>

<p>Appeal by defendant Ritter, from order allowing plaintiff to serve an amended complaint.</p>

(See report of first appeal, 46 Super. Qt. 184.) The action was brought to recover the sum of $500, alleged to have been wrongfully retained by defendant upon a settlement between Mm and plaintiff’s testatrix, as attorney and client.

<p> Real party in interest—who is—motions to substitute name of after direction of verdict.—Draft indorsed for collection.—Exceptions ordered to be heard at general term—-when computation of verdict cannot be considm-ed upon. </p>

Appeal by defendant from judgment entered on verdict in favor of plaintiff. The action was on the following pleading, viz.: That there was due and owing from, the above named defendant to a certain firm, of which the plaintiff was assignee in bankruptcy, $1,596.29, on account of moneys advanced and services rendered by them as stockbrokers to him, at his request, in “purchasing, carrying and selling” certain shares of stock.

The complaint does not purport to be upon an account, but simply for professional services rendered to the defendant in the matter of the estate of John Hancock, deceased. It claims, that these services were, together with disbursements expended on that behalf, reasonably worth the sum of $5,000, and admits payment on account thereof of $975.

Action for alleged conversion of stock and fixtures of a men’s furnishing store on February 3, 1876.

Action for specific performance, and to declare a trust in favor of plaintiff in certain real estate field by-defendant. The parties are husband and wife. The facts as found by the trial judge are substantially as follows : In 1865, the plaintiff and defendant intermarried.

The action was for damages for personal injuries, because of the alleged negligence of the defendants, in not putting safeguards around holes which, they had dug in the Ninth avenue. The defendants, as contractors with the New York Elevated Railroad Co., were engaged in May, 1879, in digging pits or holes in the Ninth avenue, for the purpose of laying foundations for the columns required for the support of the road then about to be erected.

Action to recover commissions claimed by plaintiff to be due to him from defendant for brokerage upon the purchase of the steamboat Plymouth Rock, from Jay Gould. Defendant contended that plaintiff’s compensation was contingent upon certain conditions which had not been fulfilled.

Appeal by defendant from judgment entered on the verdict of a jury, and from order denying defendant’s motion on the minutes for a new trial. Action to recover damages for an injury to plaintiff’s person alleged to have been caused by negligence. On May 28, 1878, the plaintiff, while walking down Broadway, was struck on his head by a brick, which fell from a building then being demolished.

Appeal by defendants from judgment entered upon the verdict of a jury rendered pursuant to the direction of the court. By the contract between the parties for the sale and purchase of lumber and timber, delivery was to be made in cargo lots, and upon arrival each cargo was to be settled for when discharged, the buyers to pay the freight in cash and the price in orders on the Dock Department, and each, side to pay one-half of the cost of the measurement and inspection.

The following opinion was delivered at special term, by Sedgwick, J.: “In the matter of Hatch (43 Su/per.

The plaintiff, as the assignee, through several mesne assignments, from one Terence Smith, sued to recover from the city a balance of $700, due Smith for work done upon the Ninth avenue. The defendant Russell, making a claim to the sum of $544.60 out of the fund, because he had furnished to Smith the materials, &c., for the work done by him, was made a party defendant.

<p> Action for causing death by negligence—when deceased deemed chargeable as matter of law with contributory negligence in crossing railroad track. </p>

The complaint alleged that defendant was a domestic corporation, duly organized, etc., having a place of business in New York City, and proceeded : “3. That from April 1, 1880, to September 20, 1881, plaintiff held the office of secretary of said company, and discharged all the duties and services appertaining thereto.” “4. That the salary of the said office, during all said times, was duly and regularly fixed by said company at $1,800 per year.” “5.

Appeal by defendant from judgment entered on verdict for plaintiff and from order denying motion for new trial, made upon the minutes, one of the grounds of motion being that the damages recovered were excessive. The action was for damages for injury alleged to have been caused by negligence of defendant’s servants. The plaintiff testified that in the accident proved, she fell and broke her knee-pan.

On or about June.27, 1879, judgment in this action was entered in defendant’s favor upon a demurrer, from which judgment an appeal was taken, and on or about April 5, 1880, the judgment was reversed and judgment directed for plaintiff. The order was settled on notice, and was absolute. The original plaintiff having died, the action was revived, and thereafter, and on or about May 10, 1882, judgment herein was entered without notice of any kind.

<p> Action for causing death—not enough that plaintiff proves facts equally consistent with negligence or care on part of defendant. </p>

<p>Appeal from an order striking out certain parts of an amended answer, as irrelevant and redundant.</p> <p>The action was upon a bond.</p> <p>On motion, the court below struck out paragraphs 4, 5, 6, 7, 8, 9 and 10 of the answer as irrelevant and redundant. Paragraph 11 contained a denial that the contingency upon which the obligation of the bond depended had occurred, but such fact was not pleaded in form nor numbered as a separate defense.</p>

<p> Order of arrest obtained on same grounds as cause of action—when will not be vacated. </p>

<p>Appeal from order denying motion to open default.</p>

<p>Appeal from an order denying plaintiff’s motion for reference.</p>

<p>Appeal from order setting aside an inquest and judgment on terms.</p>