Volume 17 — Bosworth's New York Superior Court Reports

This case was brought to a hearing at the General Term, on motion by the plaintiff for judgment on the verdict had by him on the trial of the action before Chief Justice Oaklet and a jury January 26th, 1857.

This action is brought upon a promissory note for $2,506.35, made by the defendants, payable to the Reliance Mutual Insurance Company or order,. seven months after date, and dated August 22d, 1854. Before the maturity of the note the payees became insolvent, and on the 28th day of March, 1855, the plaintiff was appointed receiver of the goods, property, &c., of the Company, in and by proceedings had in the Supreme Court, and an order made therein.

This action came before the Court at General Term on questions of law arising at the trial, and there ordered to be heard at the General Term in the first instance. It was commenced in March, 1856, and was tried before Chief Justice Bosworth and a jury, on the 16th of November, 1858.

This is a motion by the plaintiff for judgment on a verdict in Ms favor taken subject to the opinion of the Court. The case presenting only questions of law, they were ordered, at the trial, to be heard hr the first instance at the General Term. The action was tried before Mr. Justice Slosson and a jury, on the 23d of April, 1857.

This is an appeal by the defendant, Smith, from an order denying a motion made by him on a case (containing exceptions) for a new trial. The action was tried before Mr. Justice Pierrepowt and a jury, on the 22d of June, 1858.

This case comes before the Court, on questions of law arising at the trial, and there directed to be heard in the first instance at the General Term. Held: and this action prosecuted by the plaintiff, solely for the benefit and advantage of the said trustees.” At the trial, the plaintiff read the note in evidence and rested. William.

This is an appeal by the defendants from a judgment entered against them, upon the report of Henry Nicoll, Esq., as referee.

This is a motion by the .plaintiff for judgment on a verdict in his favor, taken subject to the opinion of the Court at General Term, on the questions of law arising at the trial. In July, 1855, Delachwpelh commenced an action in this Court against Amos B. Thompson, to recover the possession of personal property.

This is an appeal by the plaintiffs, from an order of the 1st of June, 1858, denying a motion made by them for a new trial; and also from a judgment entered on the 2d of June, 1858, in favor of the defendants, Hart & McCorkle, for the sum of $111.31, their costs of the action; and from a judgment, entered the same day, in favor of the defendant Tuller, for the sum of $108.05— his costs of the action.

This action came before the Court at General Term, by .appeal taken by the defendant from the judgment entered on a verdict for the plaintiff .on a trial before Chief Justice Oakley and a jury,.on the 4th day of March, 1857.

The case came before the Court upon an appeal from a judgment entered upon the decision of Philo T. Ruggles, Esq., as referee. He found that there was nothing due from the defendant to the plaintiff; but, on the contrary, that the plaintiff was indebted to the defendant in the sum of $5.14. Judgment for the defendant was entered upon his decision for that amount, with costs, being, in the whole, $85.69.

This case was heard at the General Term after a judgment-dismissing the complaint, and giving costs to the defendant, was ordered at the trial, the Court directing that the case be heard on the exceptions at a General Term of the Court, with a stay of proceedings to enforce such judgment, until the General Term * had passed upon the same. . The action was tried before Mr. Justide Pierrepont and a jury, on the 12th of October, 1858.

This action came before the Court in General Term on an appeal by the defendants from a judgment entered upon a verdict in favor of the plaintiffs for $866.75. The complaint herein alleges that the defendants had and used certain machinery, &c., belonging to the plaintiffs as assignees of Goodyear & Ely, from November 1st, 1848, to October 1st, 1855, which articles were worth $824.

This action came before the Court by appeal from the judgment rendered for the plaintiff on a verdict in his favor for $2,112. The action was tried on the 21st day of April, 1858, before Mr. Justice Slossou and a jury.

This action was brought against the defendants as sureties or guarantors for the payment of rent, and the performance of covenants by Edward H. Newman.

This action comes before the Court on questions of law, arising at the trial, and which were there ordered to be heard in the first instance at the General Term. It was tried before Mr. Justice Slossow and a jury, on the 21st of June, 1858-. It is brought to recover the possession of a package of bank bills.

These were cross-appeals by both plaintiff and defendants, in an action tried before Mr. Justice Pierbepoht and a jury on the 12th of May, 1858. The action was brought to recover from the defendants as common carriers, for the loss of the plaintiff’s traveling trunk and its contents, under the following circumstances, viz.: The plaintiff, on the 11th day of September, 1855, left Boston for Mew York by the Fall River route.

This is an appeal by the defendants from a judgment entered against them upon the report of E. P. Cowles, Esq., as Referee. The action was commenced by Mortimer Livingston, Receiver of the General Mutual Insurance Company, as plaintiff, against William Nelson and William Nelson, Jr., as defendants.

This is an appeal by the defendants from an order made by Mr. Justice Hoffman, denying a motion for a new trial, made upon the ground that the verdict in favor of the plaintiff was against the weight of evidence. ■ The main facts from which the controversy arises are as follows: The defendants, a Marine Insurance Company in Hew York, employed McLimont as their agent in Quebec, under a letter of authority dated December 14th, 1854.

This is an appeal by the defendants from a judgment entered on the decision of Mr. Justice Boswobth, made upon the trial of the action before him without a jury. It was tried in May, 1857. The action was commenced by the service of a summons and complaint, on the 29th of October, 1855.

The parties to this controversy are Jane Campbell, executrix, &e., of Daniel Campbell, deceased, plaintiff, and The International Life Assurance Society, of London, defendants. It was submitted to the court under section 872 of the Code.

This action was brought against the defendant as drawer of a bank check for $2,215.20, dated October 14th, 1856, drawn on the Nassau Bank, payable to the order of O. N. Mills, and by him indorsed to the plaintiffs; payment whereof was duly demanded, and being refused, the defendant had notice thereof.

This case comes before the Court at General Term, on questions of law arising at the trial, and there ordered to be heard, in the first instance, at the General Term. It was tried before Mr. Justice Slosson and a jury, on the -16th of November, 1858, when a nonsuit was ordered. . , ...

This is an appeal by the plaintiff, (William Beach Lawrence, Jr.,) from a judgment against him, entered upon a verdict in favor of the defendant, (John Woods,) rendered upon a trial had before Mr. Justice Woodruff and a jury, on the 13th of May, 1858.

This action comes before the General Term on an appeal by the defendants from a judgment entered against them at Special Term, in favor of the plaintiffs, on the 3d of July, 1857, for $42,152.97. Held: inter alia, as matter of law, that neither the plaintiffs nor their assignors ever had any just or valid claim against the State. His 14th conclusion of law is as follows, viz.: “ 14th.

This action comes before the Court at General Term, on a verdict taken subject to the opinion of the Court on questions of law 'arising at the trial, and there ordered to be heard in the first instance at the General Term. This action was commenced on the 12th of April, 1856, and was tried before Mr. Justice Hoffman and a jury, January 29, 1858.

This is an appeal by the plaintiffs,'from an order at Special Term, made by Mr. Justice Slosson,- on the 22d of October, 1858, overruling plaintiffs’ demurer to the second and third defenses, stated in the defendant’s answer. ' The action is brought against the Sheriff for the escape of one Stephani from his custody as such Sheriff. Stephani was in custody upon a process for contempt.

This is an appeal by the defendant, Henry A. Chittenden, from a judgment, entered on a verdict rendered against him upon a, trial had before Mr. Justice Pierrepont and a jury, on the 18th of February, 1858, in an action in which the Woodruff & Beach Iron Works are plaintiffs.

This action comes before the Court on questions of law arising at the trial, and there ordered to be heard, in the first instance, at the G-eneral Term, the entry of judgment in the meantime to be suspended. It was tried on the 12th of January, 1858, before Mr, Justice Woodruff and a jury, when a verdict was ordered in favor of the plaintiffs for $36,541.95.

Appeal by the New York Mutual Insurance Company, the defendants, from a judgment in favor of David Ogden, the plaintiff, rendered on a trial had on the 21st of June, 1858, before Mr. Justice Pierrepont, without a jury.

This is an'appeal by the plaintiffs, (surviving members of the firm of Olyphant & Son,) from a judgment in favor of the defendant, rendered upon a demurrer to the defendant’s answer. The complaint is upon a bill of exchange, dated New York, August 12th, 1847, and drawn there by Edward J. Mann on the defendant, George W. Atwood, for £1,500, payable sixty days after sight, to the drawer’s own order.

This is an appeal from a judgment setting aside an assignment executed by Robert Waller to Thomas Waller, Hovember 28, 1855, as being fraudulent and void, as against the creditors of the assignor. The appeal is taken on behalf of Logan, the receiver, who was made a defendant by the supplemental complaint.

This is an appeal by the plaintiffs from a judgment rendered against them, on a demurrer to their complaint. The plaintiffs, by an indenture of lease dated the 1st of February, 1836, demised certain real estate therein described to Wm. H. Parkhurst, Administrator, for a term of years, to wit: for twenty-one years from the 21st of May, 1836; which lease, with all the covenants contained in it, was subsequently extended and continued in force until the 1st of May, 1858.

This action comes before the Court at General Term, on two appeals taken by the defendant, which were argued together. The action is brought to recover damages - for an assault and battery committed by the defendant upon the plaintiff. It was tried before Mr. Justice Slossow and a jury, on the 5th of March, 1858, and. the plaintiff recovered a verdict for $500. On the 12th of March, 1858, judgment was entered on the verdict, and a judgment-roll filed.

This is an appeal by Henry Placide, the plaintiff, from a judgment in favor of William E. Burton, the defendant, entered on the report of Henry Nicoll, Esq., as Referee. In 1854, the defendant was the manager of a theatre in the city of New York, known as Burton’s Theatre, and the plaintiff was an actor.

This is an appeal by Augustus Studwell, (the plaintiff,) from a judgment against him in favor of Gilbert R. Terrett, (the defendant.) entered on the report of Hamilton W. Robinson, Esq., as Referee. The summons, by the service of which the action was commenced, was served January 13th; the complaint February 12th, and the answer March 12th, 1857.

This is an appeal by the plaintiffs from a judgment against them, entered on a verdict rendered at a trial before Mr. Justice Woodruff and a jury, on the 21st of June, 1858. Isidor Bernhard and Seigel Bernhard, composing the firm of . Isidor Bernhard & Son, are the plaintiffs, and William Brunner, Samuel Brunner and Jacob Brunner, composing the firm of ■ William Brunner & Co., are the defendants. The action is upon a check in these words, viz.: “No. 8874.

This is an appeal by Jasper W. Gilbert, the defendant, from a judgment in favor of Samuel W. Davenport, the plaintiff, entered on a verdict rendered on a trial had before Chief Justice Oaklet and a jury, on the 10th of April, 1856.

This is an appeal by the defendant, Easton, from an order made by Chief -Justice Bosworth in December, 1858, overruling a demurrer taken by defendant, Easton, to the plaintiff’s amended and supplemental complaint.

This is an appeal by the plaintiff from a judgment dismissing his complaint, and also from an order -denying a motion for a hew trial. The action was tried before Mr. Justice Pierrepoht, and a jury, on the 1st of November, 1858.

The questions of law arising on the trial of this action were there ordered to be first heard at the General Term. It was tried before Mr. Justice Woodruff and a jury, on the 9th of February, 1857.

This is an appeal by the defendants from a judgment against them, entered upon a verdict rendered upon a trial had before Mr. Justice Slosson and a jury, on the 27th of May, 1858. The plaintiff sues as indorsee of a note, which, with the indorsements thereon, reads as follows, viz.: “ $1,000. Hew Yore, Dec. 1st, 1855. “ Twelve months .after date, we promise to pay the International Insurance Company, or order, for value received, one thousand dollars.

This is an appeal from an order allowing a supplemental complaint to be filed, and vacating a previous order allowing the original complaint to be amended. The action is brought by the plaintiff as a judgment creditor of John L. Colby by judgment recovered March 27, 1857, to set aside a deed of land executed by John L. to Mary.

This is a demurrer to the defendants’ answer. The case made by the complaint is, that a pension certificate has been duly granted and issued to the plaintiff by the government of the United States, pursuant to the acts of Congress in that behalf; that it is in the possession of the defendants, who, on demand made, refused to deliver to the plaintiff, and the judgment is prayed that they deliver it to the plaintiff, and pay damages for its detention.

Ah appeal by the plaintiff from an order denying a motion made by him to set aside an execution for irregularity. William Marsh, the plaintiff, prior to commencing this action, was appointed by a Judge of this Court a receiver of the property and effects of one F. C. W. Wedekind. He was so appointed on proceedings supplementary to execution, in an action in which one Benjamin Marsh was plaintiff, and said Wedekind was defendant.

In this action the defendant made a case upon which'to move for a new trial. The plaintiff’s counsel prepared an entire‘case and served it as a substitute, by way of amendment. . . Thereupon the defendant moved to set aside the .proposed amendment, and an affidavit was read on the motion stating that the proposed case was very inaccurate, and that the substitute proposed more nearly corresponded with the proceedings on the trial.

The defendant moves to vacate an order made in this action October 11th, 1859, requiring him to be held to bail in the sum of $13,000. The action is trover to recover the value of 260 shares of the stock hereinafter mentioned. i The plaintiffs, June 21st, 1859, gave to defendant their note at three months for- $2,500, and on the 18th of July,. 1859-, their further note at three months for $4,000.

The defendants move for a new trial, on the ground of newly discovered evidence. The action is brought by the plaintiffs to restrain the defendants- from imitating their trade mark and selling a preparation of the defendants’ manufacture under a label so closely imitating the alleged trade mark of the plaintiffs as to deceive dealers; and to recover damages for injuries to the plaintiffs, which they allege they have sustained by reason of such misconduct.

The defendant moves at Special Term . on a-.case, and on affidavits of newly discovered evidence, for a new trial.

<p>1. In an action against a defendant for criminal conversation with the plaintiff's wife, he may be held to bail on an affidavit which states a cause of action, and nothing more.</p> <p>2. Such an action is one for “ injury to person,” within the meaning of those words as used in section 179 of the Code, subdivision 2.</p>

Jambs L. Ferris was, on the 10th of December, 1858, or claimed to be sole owner of the baric .Convoy, and through his attorney, G. A. Ferris, entered into a charter party with the defendants, dated that day, chartering the vessel to them on her voyage from Galveston, Texas, to the port of New York. The owner was to keep the vessel tight and strong, in the usual language of such an instrument.

On exception to the bail put m by the defendant on his arrest in this action, and on appearance to justify, it appeared that the bail was a practising attorney of this Court and of the other Courts of this State. On that ground, the bail was rejected. (See Case and Opinion, 2 Bosw., 709.) From the order disallowing such bail, the defendant appealed to the General Term. I. Attorneys were not disqualified to be bail by the common law.

Motion by the defendants for leave to file a supplemental answer. The facts sufficiently appear in the opinion of the Court.

This is a demurrer by the plaintiffs to a part of defendant’s answer, which is pleaded as a separate defense. The facts appear fully, in the following opinion.

This is an appeal by the plaintiff from an order made by Mr. Justice Pierrepont, on the 14th of November, 1859. On commencing this action, on the 29th of September, 1859, the plaintiff obtained an injunction restraining the defendants from doing certain acts therein specified, which injunction was served on the defendants. To obtain it, he gave such an undertaking as section 222 of the Code requires.

<p>1. In an action, brought by an assignee in trust for the benefit of creditors, where such assignee is also a non-resident, the Court may, in its discretion, compel him to file security for costs.</p> <p>2. An order that he file security may be made, after the plaintiff has taken an appeal from, a judgment entered against him in the action.</p>

This is an action brought to recover money alleged to be due for the employment of the defendant and the charter of his vessel, for a voyage to Virginia for oysters.

This is an appeal by the defendants from an order made in this action on the 7th of April, 1860, by Mr. Justice Moncrief. The action was commenced in January, 1860, to recover tor the loss of services of plaintiff’s infant daughter, alleged to result from injuries caused to her by the negligence of the defendants’ servants.

<p>The facts sufficiently appear in the following opinion:</p>

<p>1. On proceedings supplementary to execution, neither a witness nor a person alleged to have property belonging to the judgment debtor, can be required to answer questions put with a view to eliciting evidence tending to show that transfers of property made by such debtor were made with intent to defraud creditors.</p> <p>2. Property in the possession of a third person claiming title, no matter how fraudulent the transfer, the Judge cannot order to be delivered to the creditor.</p> <p>3. The object of the examination is the discovery of property in the possession or control of the debtor.</p>

<p>In an action against a female, she cannot be arrested and held to bail, on the ground that she fraudulently contracted the debt on which the action is brought.</p>