Volume 17 — Abbott's New York Practice Reports

Judgment was recovered in this action by Henry W. Ward against Welcome E. Beebe and Elisha Euckman for $610.40. Euckman was a judgment-creditor of Ward’s in another action. Supplementary proceedings under section 294 of the Code of Procedure were instituted against Beebe in Buckman a. Ward,' but no1 notice of the proceedings was given to Ward or his attorney.

<p>Trial by Jury.—Witness.—Husband and Wife.</p> <p>In an action for an accounting in respect to both real and personal property, the transactions being alleged to be in the nature of a partnership, the practice of courts of equity does not confer on either party the absolute right to a trial by jury. •</p> <p>The right to a trial by jury in civil cases is waived by entering on the trial before the court without a jury without making objections.</p> <p>Before the act of 1860, as well as since the amendment of 1862, husband and wife were not in general admissible as witnesses for and against each other.*</p>

The action was brought by the President, Directors, and Company of the Lee Bank, plaintiffs, against George B. Satterlee, defendant, upon three bills of exchange drawn by one Pierre C. Kane, at Lenox, in Massachusetts, upon the defendant George B. Satterlee, and accepted by him. These bills were drawn payable to the order of Mrs. Edith Kane, by her husband, and were accepted by Mr. Satterlee after being thus drawn.

, This cause having been on the calendar of the Court of Appeals for more than five terms, the clerk of the Superior Court, upon taxing the costs after the remittitur was sent down, allowed the successful party only five term-fees, from which decision an appeal was taken to the court, which, at special term, held that a fee was taxable for every term, and directed the costs to be adjusted accordingly. An appeal was now taken to the court at general term.

This action was hy Daniel J. Shaw against Henry Dwight, Jr., and Ancel St. John. The plaintiff had jndgment which had been affirmed with costs by the Cotirt of Appeals. The cause was on the calendar of the Court of Appeals twelve terms, not reached or necessarily postponed. On appeal from the clerk’s adjustment of costs, the plaintiff was allowed to tax only five term-fees: he appealed.

This action was brought by Sarah Anna Bihin against John A. Joseph Bihin. The plaintiff and defendant intermarried in 1849, at the city of New York; were then inhabitants of the State, and were so at the commencement of this action. They proceeded the first year of their marriage to Europe, resided. at Limburg, Belgium, and resided there three years. Returned to Philadelphia, Pennsylvania; afterwards’ resided in Queens county. The action was commenced in 1861.

At a Surrogate’s Court, held in and for the county of Sara-toga on the 31st day of December, 1855, it was decreed by the surrogate that certain instruments offered for probate as the last will and testament of James Macgregor, deceased, be admitted to probate, and certain other instruments offered by James Buell be rejected.

Motion to vacate judgment, and for leave to answer. This action was brought by Sanford L. Macomber against The Mayor, Aldermen, and Commonalty of the city of Mew York, to recover $538, the compensation due plaintiff as assistant keeper of one of the corporation yards. The facts are fully stated in the opinion. The motion was made by Robert T. Haws, comptroller.

Trial by Referee. This action was brought by a husband to obtain an absolute divorce from his wife, on the ground of alleged adultery on her part. The answer denied the adultery and charged the plaintiff with the commission of the like offence, and claimed judgment in favor of- the defendant for a dissolution of the marriage contract on the ground of adultery. The pleadings were verified. The issues were referred by consent to Hon. Murray Hoffman, to hear and determine.

This was an action by Jacob Wortman against Harriet Wort-man for a divorce, on the ground of adultery. The summons was undertaken to be served by publication. The defendant did not appear. A judgment of divorce was ordered on the 30th day of Hay, 1862.

The plaintiff, James Kennedy, was master of the steamship “ City of Baltimore,” one of the vessels of the “Liverpool, New York & Philadelphia Steamship Company,” and brought the action as master of the vessel, for freight on merchandise, carried in that vessel from a foreign port, consigned to the defendants, David Eilau and another.

<p>Actions against Married Women.—Sole Trader.—Sealed Instrument.—Admissions.—Measure of Damages.</p> <p>Although a sealed instrument executed by an agent who has only a parol authority, is not good in general, and will not sustain an action against the principal, yet admissions contained in it are competent-evicRmce against the principal.</p> <p>Thus, in an action for use and occupation of demised premises, -the rent reserved in a sealed lease which was executed by defendant’s agent, but is void for want of sealed authority to execute it, furnishes, as against the defendant, the measure of damages.</p> <p>In an action against a married woman, her admissions are competent evidence.</p> <p>A married woman may be sued, in all matters respecting her separate estate, as if she were single. '</p> <p>This rule applies to the form of the action as well as to the parties.</p> <p>An affidavit bearing the signature of the adverse party, is properly received to prove admissions, without proof of the authority of the magistrate who administered the oath.</p>

Motion to strike cause from the calendar. . ° This action was brought by Maria Anderson against Patrick Dickie. The plaintiff had judgment, and the defendant appealed. Plaintiff noticed the appeal for argument, and placed the appeal on the calendar. The defendants moved to strike the cause from the calendar. The facts and grounds of motion are stated in the opinion. '

This action was brought by William A. Morris and George Kissam, executors, against Henry H. Morange and others, for the foreclosure of a mortgage: plaintiffs had judgment, and defendant Morange appealed. An order was made at Kings Special Term, directing that the notice of appeal from the judgment in this action, served on the clerk, be set aside and taken from the files of the court, on the ground that it was not served within thirty days- after notice of the judgment.

The action was by William Lobach and John F. Schepeler against George Hotchkiss, owner of the schooner Stephen Hotchkiss, to recover $552.18, the balance of an amount expended by Fischer, Bussing & Co., of Vera Cruz, Mexico, in the year 1855, in settlement of a claim for salvage, and other disbursements, arising out of a stranding of the schooner at Alvarado, Mexico. The cause was tried before Mr. Justice Clerke and a jury.

This action was brought by Henry Bawls- and C. St. John ■ Seymour against William W. Carr, Máry P. Carr, and said Mary as administratrix of Joseph C. Stone.

This action was brought by Abraham R. Van Rest, Jr., against Thomas G. Talmage, to recover $8,929.25 as balance due on two bonds given by defendant to Abraham R. Van Rest and assigned to plaintiff. The defence was payment, with accord and satisfaction. The cause'was tried before Mr. Justice Gierke and a jury.

The action was brought by N. A. Cowdrey against Jacob Carpenter. After judgment, the plaintiff obtained an order for the examination of a debtor to the defendant, supplemental to the execution. Pending the proceedings, and before any examination had taken place, the defendant appealed from the judgment to the general term of this court. He perfected his appeal by the usual notice, and gave an undertaking pursuant to sections 334 and 335 of the Code.

<p>Demurrer to complaint.</p> <p>The pleadings are sufficiently stated in the opinion of the court.</p>

<p>Cebtiobabi.—Notice.—Sevebal Wbits.</p> <p>A common-law certiorari, to review the proceedings of a board of officers or inferior tribunal, may be granted on an ex-jiarle application.</p> <p>Several writs of certiorari may be issued in one case, where this is necessary in order to bring up the entire record.</p>

I. The complaint should have been dismissed. 1. It did not state facts sufficient to constitute a cause of action. (Dunlap a. Gibbs, 4 Yerg., 94; Hoare a. Peck, 6 Sim., 51; Cuthbert a. Creasy, 4 Bligh., O.S., 125; Wienes a. Ogden, 4 Wash. C. C., 631; Fyson a. Pole, 3 Younge & Coll., 266; Story's Eq.

I. The sale and certificate “ became null and- void” by the redemption of the premises sold. 1. The defendant in the execu ■ tions upon which the sheriff claims to have sold this property, is entitled to redeem it, within one year from the time of sale, by payment of the sum bid, with ten per cent, interest. (2 Rev. Stat., 370, §§ 45, 46.) The subsequent sale under foreclosure, does not affect the defendant’s right to redeem. The statute is absolute.

Trial by the court. This action was brought by Charles S. Willett, trustee of Charles M. and Drusilla Willett, infants, against James Stringer, William A. Townsend, and Bobert and George Billin, to obtain an injunction, and other special relief. The facts and the questions involved will be understood from the opinion.

<p>Counter-Claim.-Foreclosure.</p> <p>The right of the plaintiff to claim, and the right of the defendant to counterclaim, upon any given or supposed facts in controversy, must be reciprocal.</p> <p>Thus, in an action for the foreclosure of a mortgage, defendants not personally liable to pay the amount secured, cannot interpose a counter-claim arising out of transactions unconnected with the subject of action.</p>

Motion to vacate an order of arrest. This action was brought by Edward T. Draper and Elizabeth Clark, to recover $85.51, the price of certain merchandise.

The appellant was Marcus P. Woodruff, executor of John O. Woodruff, deceased. The respondent was Emily B. Woodruff, widow, executrix, and residuary legatee, under the will of John O. Woodruff. The appellant, the deceased, and one Robert M. Henning, had been copartners in the firm of Woodruff & Go.

<p>Death or Party.—Revivor.—Supplemental Complaint.</p> <p>On the expiration of a year from the death of a party to the action, the court has now power, on motion, to allow a continuance of the action by or against his representatives.</p> <p>The supplemental complaint contemplated by section 121 of the Code, as a substitute for a bill of revivor, is served as a matter of right; and upon such complaint, and the pleading of the adverse party, the propriety of allowing a continuance of the original action is the only question in controversy, and is to be tried like any other issue.</p>

<p>Excusing Default.—Teems.—Appeal.</p> <p>The settled power of the court to set aside inquests, and to open defaults in its discretion, for the purpose of attaining justice by a fair trial, may be exercised even after open and confessed negligence.</p> <p>An inquest should be set aside, unless the court can be fully satisfied that the defendant had no evidence which would materially reduce or defeat the recovery. On appeal from an order proper to be granted only as a matter of favor, the court at general term, in support of the order, will presume, till the contrary appear, that it was so granted.</p>

This action was brought by Thomas B. Wattson and Edward L. Clark against Thomas Thibou, upon nine promissory notes, amounting to $17,723.34. The complaint was verified 12th August, 1861: an attachment was issued and summons served by publication: an answer was1 put in February 21st, 1862, setting forth that on September 10th, 1861, the defendantzdelivered to plaintiff four bonds, amounting to £3,692 7s. 3d., which the latter accepted in full satisfaction.

This action was brought by Alfred Tamisier against Carolina Cassard and Andres Cassard, upon a promissory note for $263.81. The complaint alleged that it was indorsed by the payee to the plaintiff, and that he was the lawful owner and holder. The defendants answered, denying that the plaintiff was the owner and holder of the note, and averring that one Victor Giraudy was the real owner and holder thereof, and the real party in interest.

Motion to strike out complaint as scandalous, or to strike out portions of it as scandalous, irrelevant, and redundant, and to make it more definite and certain. This action was brought by Simon Mussina and Jacob Mussina .against Lot C. Clark and Alfred DeGroot, counsellors of the court, to recover $100,000 damages for an alleged conspiracy to delay and. defeat the plaintiffs in an action brought by. the present plaintiffs against Stillman.

This action was brought by George M. Beebe against Walter K. Marvin on a judgment recovered in Kansas for $364.

This was an action by Sylvester Cahill and Gilliam B. Seely against Courtlandt Palmer and the Mayor, &c., of Hew York, to obtain a judgment for $73,040, awarded to Palmer by the commissioners appointed to assess damages for certain lands acquired by the city of Hew York for a public park. The form of the complaint is sufficiently stated in the opinion.

<p>Common Schools in New York City.—Removal of Teacher.— School Trustees.—Notice of Meetings.—Resignation of Trustees.—Removal.—Power of Majority.—Public and Private Trust.—Corporation.</p> <p>A certificate, issued under the Laws of 1851, ch. 386, § 11,—which makes it the duty of the city superintendent, under general regulations of the Board of Education, to examine into the qualifications of persons proposed as teachers of common schools in the city of New York, and to grant certificates,—need only specify in which class of schools the person is qualified to teach.</p> <p>And where, under this statute, and a by-law of the Board of Education which required that the certificate given should express the gradé of the teacher, the superintendent gave a certificate expressing the grade, and that the teacher was qualified as first assistant of a grammar-school;—Eeld, in the absence of evidence of any further regulation of the board, that the teacher might lawfully serve as principal of the primary department of a grammar-school.</p> <p>The power of the board of trustees to employ teachers under the same statute, coupled with the general authority to conduct and manage the schools, necessarily implies the right to remove them, espepially under a by-law of the Board of Education regulating the proceedings on such removal.</p> <p>The power of the city superintendent, under the same statute, to annul the certificate given to any teacher, is distinct from the power of the trustees to remove a teacher.</p> <p>The members of a body intrusted with the management of a matter of public concern,— e. g., a board of school trustees,—are deemed to have notice of a general or stated meeting held pursuant to the by-laws of the body.</p> <p>Under section 10, subd. 7, of the same statute, which authorizes the trustees by the vote of a majority to declare vacant the seat of any trustee who shall refuse to attend three stated meetings, the tender by a trustee of his resignation, with its acceptance by a majority, renders his seat vacant.</p> <p>The office of a trustee of common schools in the city and county of New York, becomes vacated by the removal of the incumbent from the county.</p> <p>In case of a vacancy in the board of trustees of common schools in New York city, the remaining members of the board are authorized to continue the performance of the duties of the board without waiting till the vacancy is filled, inasmuch as the power of appointment, or of nominating for appointment, is not vested exclusively in the board of trustees.</p> <p>When a general power is conferred upon two or more bodies, they must all come together for consultation and deliberation; though when they have done so, the vote of the majority of the persons present controls, even though one of the bodies should leave before the vote is taken.</p> <p>The provision of 2 Bev. Stat., 555, § 27, that where a duty or authority is confided by law to three or more persons, a majority of such body may act upon a meeting of all, is applicable to the boards of trustees of common schools in the city of New York.</p> <p>This provision, in its application to bodies intrusted with the management of matters of public concern, is to be thus interpreted: that when all the members are notified that a meeting is to be held, and a majority of the whole number attends, the majority so attending may organize and legally proceed to the transaction of business. As respects those who neglect or refuse to attend, it is the same as if they had attended and dissented from the act of those who were present.</p> <p>Where, in matters of a private nature, a power is to be exercised by certain designated individuals, all must concur in its exercise, and the death, absence, or disability of any one of them, will not make the execution of the power by the remainder of them valid.</p> <p>But where powers, to be exercised as a continuous public trust or duty, are confided to designated persons, and some die or become disqualified, the others may discharge the trust or perform the duty, provided there is a sufficient number to confer together, deliberate, and, in view of a possibility of division of opinion, to decide upon the course to be adopted.</p> <p>If such a power or duty is confided to two only, and one dies or becomes incapable of discharging it, the other cannot act alone, unless, to prevent a failure of justice, it is indispensable.</p> <p>The Board of Education of the city and county of New York may be sued : possessing the powers and privileges of a corporation, it is subject to the obligations incident to such powers.</p>

This action was brought by John Mitchell and another, assignees, against William B. Moffat, in his lifetime, to recover the amount of a demand for labor and materials in repairing defendant’s buildings. The defendant interposed an answer: after his death the suit was revived by his executor, Bichard E. Mount, Jr. The cause was tried before a referee, who reported in favor of plaintiffs for $1,020.84.

<p>Appeal from an order of tlie Supreme Court, First District, refusing a mandamus.</p> <p>The proceeding was instituted by William Eagle against John Keyser. A motion was made on due notice, in the Supreme Court, at special term, for a mandamus, directed to the register of the city and county of New York, commanding him to file a satisfaction-piece of a mortgage recorded in his office, and to cancel and discharge of record the mortgage. The motion was denied by order of the court.</p> <p>On appeal, the court, at general term, reversed that order, and directed a mandamus to issue, commanding the register to receive and file, and record in his office, the satisfaction-piece. (39 Barb., 58J.) But the court would not require the register to discharge the mortgage on the record, and the appellant appealed from the order, so far as it did not direct the writ to issue for that purpose. The mortgage was made by the relator, William Eagle, to Samuel Maycock and John Wright, executors of the will of James Espié, deceased, to secure the payment of $1,200, being money belonging to the testator’s estate, loaned by them as such executors to Eagle. Maycock having died, the money was paid to John Wright, the surviving executor, and the certificate of payment was executed and duly acknowledged by him. The mortgage purported to be made by William Eagle, of the first part, to “Samuel Maycock and John Wright, executors of the estate of James Espié, deceased, of the second part,” who were described subsequently in the mortgage as “ the party of the second part.” The register declined to receive or file the certificate, or to cancel or discharge of record the mortgage, on the ground that it should be executed not only by John Wright, bnt also by the executors of the will of Samuel Haycock. It was proved by affidavit that they refused to execute it, insisting that they, as executors of Hr. Haycock’s will, had no interest in the mortgage, and that the mortgage debt did not belong to his estate, or form any part of its assets. It was shown by affidavit that the loan to Eagle was made by Haycock and Wright as executors of the will of Espié, and that the mortgage was held by them as such executors, and the money secured by it belonged to the estate of Espié.</p> <p>I. The register is authorized to discharge the mortgage only when a certificate signed “ by the mortgagee, his personal representatives or assigns,” shall be presented to him. (1 Rev. Stat., 761, § 28.)</p> <p>II. The certificate offered to the register by the relator was not such as is prescribed by the statute. It affected to treat. the mortgage as the property of the estate of James Espié, and the certificate is signed by “ John Wright, surviving executor.” The uniform practice in the register’s office for the last thirty years, in respect to such mortgages, is shown by affidavit. And the case of People a. Hiner (32 Barb., 612), is an express decision that upon such a certificate the register should not cancel the mortgage. (Same case, 23 How. Pr., 223.)</p> <p>III. The relator on this application does not come before the court as the survivor of two mortgagees who have made a joint loan ; he claims simply to act as surviving executor, and as if the mortgage money was payable to him as such executor. From the face of the mortgage, it is not the property of the estate, but that of the mortgagees themselves. (Peck a. Mallams, 10 N. Y. (6 Seld.), 509.) It seems doubtful whether a mortgage taken to two persons jointly, survives so that the survivor can collect the whole. (Rigden a. Vallier, 2 Ves. Sr., 258; 2 Story's Eq., § 1206; 2 Powell on Mortg., 699, 700.) In view of this doubt, and the uniform manner in which the register’s predecessors have conducted the business of that office, the register was justified in refusing to discharge this mortgage.</p>

This action was to recover damages for a libel upon the plaintiff, published-in the ¡New York -Evening Express, of which the defendants are the-editors and proprietors.

<p>Pleading.—Jurisdiction oe Foreign Court.</p> <p>In pleading the judgment of a court of record of a sister State, the provision of section 161 of the Code of Procedure applies; and it is sufficient to allege that the judgment was duly recovered, without stating the facts conferring jurisdiction.</p>

Motion to dismiss an appeal. The action was brought by Richard Kelly, suing as a receiver, &c., against Rachel Bloom, administratrix, &c. The facts of the case sufficiently appear in the opinion of the court.

Exception to dismissal of complaint heard at the general term in- the first instance. This action was brought by Jarvis N. Lake against The Artisans’ Bank, to recover the sum of $1,058.33, being a portion of the balance of about $1,800, standing to the credit of the plaintiff, on the 27th day of July, 1857, on the books of the defendant.

This action was brought by Gerard Yon Latham against Thomas Eowan and William P. Libby to recover $5,000.

Exceptions heard at general term in the first instance. This action was brought by Samuel Hankinson against Wiliam M. Giles, to recover $5,000 damages for an alleged malicious prosecution.

This action was brought by Sarah A. Mathews against Sackett L. Duryee, Charles S. Mathews, Jr., Annie E. Hayes, and Sophie S. Mathews, to recover dower in certain surplus moneys arising after sale on foreclosure. Charles S. Mathews, the husband of the plaintiff, was seized in fee, during marriage, of certain real estate mentioned and described in the complaint.

This was an appeal taken by Richard E. Mount, Jr., executor of William B. Moffat, from an order allowing an execution against him upon a judgment recovered by John Mitchell and Abraham Cummings. The action was pending against Moffat, in the New York Common Pleas, at the time of his death. The action was continued against Mount as executor ; and plaintiff, in July, 1863, had judgment for $1261.70, after a trial at law upon the merits.

This action was brought by Gerard Yalton, and Amos Adams, the latter as assignee of Daniel Martin, against The National Loan Fund Life Assurance Society, to recover the sum of $10,000, and interest, upon a policy of insurance issued by the defendants on the life of one Conrad Schumacher.

Exceptions heard, at the general term in the first instance. This action was brought by Theodore Eeimers and Gotlieb Schmidt against John P. Eidner, Edward Thiel and Hugo Wachsehlager, to recover $4235.36 damages for defendant's’ failure to accept and pay for three hundred and ninety-three bags of saltpetre under the following contract: New York, September 25, 1855. Sold to Messrs. Eidner, Thiel & Co., for account of Messrs.

The action was by John F. Cook against John A. Bidwell. The facts are sufficiently stated in the opinion. I. The order of the 4th of November, 1862, requiring the defendant to appear, &c., should have been set aside. No order was necessary at that stage of the proceedings, even if the plaintiff was entitled to examine the defendant before the trial. The proper proceeding was to serve on the defendant a summons. (Voorhies’ Code, § 392, and cases; Gaughe a. Laroche, 14 How.

This action was brought by Rem Suydam against The Grand-street and Newtown Railroad Company, to recover $10,000 for personal injuries. The jury found a verdict for the plaintiff for $1,500. After the denial of defendant’s motion for a new trial, judgment was entered, and the defendant appealed. The material parts of the testimony in the court below are fully stated in the opinion.

I. The judge had no jurisdiction to grant the second order. The interest upon a judgment is an incident to it, not a part of it. II. The $8 costs was improperly allowed. If the non-payment of interest and disbursements gave jurisdiction, the defendant’s motion should have been merely denied. I. The order for substituted service could not be made except upon the return or affidavit of a sheriff, deputy sheriff, or constable. (Laws of 1853, 974, ch. 511.) II.

The action was by Austin Packard against loftis Wood, for an accounting between quasi-partners. Plaintiff had judgment for $29,322.10, from which defendant appealed to the general term, but without staying execution. Nearly the whole of the judgment had been collected by the sale of the defendant’s real estate to one Peter B. Amory. On the appeal, it was ordered that the judgment be reversed, unless plaintiff submit to certain reductions.

The writ was directed to the Mayor, Aldermen, and Commonalty of the city of New York; the proceedings sought to be reviewed were in relation to an assessment for regulating and grading Eightieth-street, between the Fifth-avenue and the East river, New York city. The street commissioner advertised for proposals for the work, estimating it at 20,000 yards of rock excavation, and 8,000 yards of earth excavation, and calling on the bidder to fix his price per cubic yard.

This action was brought by Gustavus H. Hotop against Heinrich Neidig and Newell Bliss, to set aside an assignment as fraudulent against creditors. It had been tried before Hon. 0. P. Kirkland, referee. The defendant Bliss made a general assignment to Neidig for the benefit of creditors.

These were two similar actions, by William Hancock and John Foley against Thomas Palmer; the first, brought upon five bills of exchange drawn by the plaintiffs upon the defendant, and accepted by him; and the other, upon two promissory notes of the defendant, drawn to the order of the plaintiffs, amounting in the whole to $16,856.55.

This action was by Charles Goings against Ludlow Patten and Alexander S. Clark.

This action was commenced by the plaintiff for the foreclosure of a mortgage alleged to have been executed, together with a bond accompanying the same, by the defendant, F. M. King, to C. P. King, and by the latter assigned to Ira Miltimore, and by him assigned to Jeremiah Blood as collateral security for the payment of two notes, which are claimed by defendants to be usurious, one of the notes securing 20 per cent, interest, and the other 12 per cent.

The prisoner, Jacques Monnais, was convicted, in September, 1863, of a rape upon the person of one Margaret Lyons. The prisoner was indicted, together with one Miner, in favor ot whom, before the trial, a nolle proseguí was entered.

Exceptions heard at general term in the first instance. This action was brought by Charles Barth against George Burt, to recover $165 damages for a breach of warranty in the sale of certain hogs. The case below was tried before Mr. Justice Gierke and a jury.

Motion by the defendant upon affidavits and order, to show cause why a special jury should not be struck for the tidal of this cause.

Motion by plaintiff for an order confirming the report of a referee in favor of the plaintiff for $95, and for judgment. „ William Curry, deceased, by his last will and testament, gave to his wife as much of his money and property as she should need for her comfortable support.

The action was by George W. Jones, late the Minister of the United States to New Grenada, against William H. Seward, Secretary of State of the United States, to recover damages for an alleged false imprisonment of the former by order of the latter in November, 1861.

In 1860 the wife of Hr. Johnson, the relator, died, leaving him three children, aged eight, six, and five years. In April, 1861, he left the children with Mr. Erhert, the defendant, promising to pay him $12 per month for the support of the two boys, and allowing him to adopt the third one, Anna, till such time as he could obtain the means to support them himself.

This action, brought by James Savage and another, against Edward Cock, was commenced in a-justice’s court in Queens county. The complaint was for manure sold and delivered to the defendant. The defendant’s answer consisted of a general denial of the allegations of the complaint. The plaintiff obtained judgment against the defendant for $121.70, damages and costs. From this judgment the defendant appealed to the County Court of Queens county.

I.A justice of the Supreme Court, like any other officer, when acting out of court, is an officer of limited jurisdiction. He may do just what the Legislature has authorized him to do; and whatever he does more than this, is done without jurisdiction. (Bangs a. Selden, 13 How. Pr., 374; Clark a. Judson, 2 Barb., 90.) II.

Motion by defendant for an order mme pro tunc denying a new trial, or for an order attaching case to the judgment-roll. The action was brought by Richard C. Gurney against William J. Sharp, and was tried before Mr. Justice Brady and a jury, November .12, 1863, and a verdict rendered by jury, for plaintiff, for $420. On November 17, 1863, judgment absolute was perfected by plaintiff.

' Motion for leave to serve supplemental answer. This was an action by Jane Henry against James Henry for a limited divorce, on the ground of cruelty. The defendant, after having answered, alleging the like conduct on the part of the plaintiff, now moved for leave to serve a supplemental answer, setting up adultery on her part, and asking an absolute divorce by way of counter-claim.

John Reynolds was convicted at the Hew York General Sessions of manslaughter in the third degree, in slaying Patrick Mathews. One of the justices of the Supreme Court certified, under the statute, that there was sufficient cause for staying proceedings, and the present certiorari was procured by the district attorney for the purpose of reviewing the conviction.

Motion, on the part of the defendants, to dismiss the complaint for unreasonable neglect to proceed with the cause. This action was brought by Bobert H. Corbett against Horace B. Claflin and others.

Hutton against Charles H. Babcock and others, to recover the rent which the latter had covenanted to pay in a lease of a store or warehouse in the city of Hew York. By the lease the plaintiffs had covenanted that the sub-cellar of the premises should be free from percolation of water through the walls, &c. The defendants set up in their answer that this covenant had been broken, and claimed damages therefor in effect as a counter-claim.

This action was brought by George P. Trigg against Edward Hitz, Sereno D. Nickerson, Thomas W. Nickerson, Charles H. Mansfield, and William Bossman. The plaintiff had bought of one Bernard Bice 300 quintals of codfish for $1,285, and gave in part payment his check for $600.

<p>Parties.—Arrest.—Fiduciary Capacity.—Guaranty.</p> <p>Under an agreement that a manufacturer should consign his wares to B. & M. for sale, and that C. & H., who had guaranteed such notes as might be taken by B. & M., should receive, collect, or otherwise in their discretion dispose of the same ; such notes, and their proceeds in the hands of 0. & H., are received in a fiduciary capacity for account of the manufacturer, and may be followed in the hands of any person not a purchaser for value.</p> <p>An order of arrest may be granted against the debtors in an action to recover moneys received in á fiduciary capacity, although the action seeks incidental equitable relief against transferees of the trust fund.</p> <p>After a trial by the court, and a decision directing judgment for money, on the ground that it was received in a fiduciary capacity, the court refused to vacate an order of arrest which had been granted on the same ground.</p>

This action was brought by Jesse FT. Bolles, as receiver of John M. Trimble, a judgment-debtor, against Trimble, John A. Duff', and William H. Eoberts. The action was brought pursuant to leave from the court. The action was to set aside an assignment and conveyance of real estate in Hew York city.

Demurrer to the complaint. This action was brought by Elizabeth G-. Lowber against William Kelly and Gabriel Winter. It appeared from the complaint that Winter had conveyed to plaintiff certain land in Hew York city, of which Winter was the owner in fee, but of which Kelly was in possession. The substance of the complaint sufficiently appears from the opinion.

<p>Hature of Causes of Action.—Capacity to Sue.—Actions between Co-trustees.</p> <p>A surviving assignee in trust cannot maintain an action against the executors or administrators of a deceased co-assignee, to require them to account for and pay over money collected by the deceased as such assignee. The cestm que trust are the proper plaintiffs.</p> <p>A complaint against executors, &c., seeking to charge them in their representative capacity, cannot be sustained on demurrer, if the facts alleged show only a personal liability on their part.</p> <p>It seems, that a trustee may maintain an action against his co-trustee to restrain a violation of duty, and even succeed in obtaining his removal.</p>

This action was brought by Samuel J. Hunt against Catharine A. Connor, administratrix of John H. Connor, upon a note of ■$3,729.13' made by defendant’s testator. The case was three times tried, resulting, on the first two occasions, in a verdict for defendant: the third trial resulted in a verdict for the plaintiff. The further facts sufficiently appear from the opinion. The defendant appealed.