Volume 17 — Jones & Spencer's New York Superior Court Reports

Appeal by plaintiff, from order denying motion to set aside execution issued against the person of plaintiff. The action was in tort. The complaint was dismissed on the trial, and judgment for costs entered against plaintiff. The defendant’s attorney had agreed with defendant, that the former was to receive the taxed costs, if the defendant recovered.

<p>Appeal from a judgment in favor of the defendant for costs, iipon dismissal of the complaint at trial term.</p> <p>The action was for damages for false representations alleged to have been made by the defendant in purchasing goods upon credit from the plaintiffs.</p> <p>The defendant was a merchant tailor in the city of New York. The plaintiffs were merchants in Boston. The plaintiffs began to sell goods to the defendant in May, 1881, ■through their traveling agent. Before extending credit to the defendant they made inquiries as to the defendant’s financial standing, of the Bradstreet Company, a mercantile agency to which the plaintiffs were subscribers, a part of whose business it is to furnish information to such of their subscribers as inquire. The report was as follows: “McKinley, J. W., Tailor, New York City.</p> <p>“John W., 127 Nassau street, states, ‘Have a stock on hand of $2,500 and no liabilities, as I pay cash for all my purchases.’</p> <p>“ He has been in the above business for the past forty years, during which time said failed twice, the last- time some three or four years ago, and effected a compromise at fifty cents; was formerly at 506 Broadway, afterwards at 264 Broadway, and moved to present location last May, which he is obliged to vacate next May, as the building is to be taken down.</p> <p>“ His wife is said to own property, the income of which supports the family. Parties who have known him many years speak of him as an honest, industrious man ; though doing a small, close business, and not doing much, if anything, more than making á living for himself. Is not known to be asking any credit, as he became so very slow in his payments, that those who have sold him for years decline selling him except for cash.</p> <p>“21 .... F.....Feb. 25, 1881.</p> <p>“Nov. 22, 1881. To Macullar, Parker & Co.: The correctness of this report is not guaranteed, but having been obtained by us in good faith—from authorities deemed reliable—it is transmitted to you in strict confidence for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.</p> <p>Respectfully, The Beadsteeet Company.”</p> <p>A witness in the employ of the Bradstreet Company testified that the statement “Have a stock on hand of $2,500 and no liabilities, as I pay cash for all my purchases,” was made to him by the defendant on or about February 25,1881, and that, at the time, he informed the defendant that he came there as an employee of the Bradstreet Company for the purpose of getting a statement of his financial condition.</p> <p>One of the plaintiffs testified that he sold the goods in question relying on the truthfulness of this statement which, upon his inquiry, was furnished him by the Bradstreet Company.</p> <p>The defendant purchased several bills of goods in May and June from the plaintiffs, for which he paid. The sales and credits,, on account of which this action was brought, were made in August, September and October. In November, the defendant made a general assignment, preferring certain members of his own family, among others his wife, to whom he recited an indebtedness of nearly $1,800, all borrowed before September, 1880, and $850 borrowed from other persons before February, 1881. His inventory showed an indebtedness of $4,097.63, with assets of the nominal value of $2,526.80, and actual value of '$1,553.80.</p> <p>The defendant did not deny that he made the statement in February attributed to him, but said he did not recollect it. It was proved on behalf of the defendant, that on or about June 20, another reporter of the Bradstreets called upon the defendant to get a report of his financial condition for the use of the Bradstreet Company. The reporter’s testimony was as follows: “I asked him if he felt inclined to give me some figures regarding his condition, as we had some inquiry at the time, and I desired to represent him properly; we had quite a long-conversation ; I can’t remember the exact words in the matter, but he did not feel inclined to give any statement; he seemed to be under the impression the agencies had done him harm ; did not think well of them; that they did not represent him properly, and a statement would not do him any good ; a statement would not do him any good if made ; he seemed to think he was all right.”</p> <p>Q. ‘1 Can you refresh your recollection from any data in your possession, or by the report you made to the company about that?”</p> <p>A. “Yes, sir; I have a memorandum in my pocket; it was: ‘ J. W. McKinley, tailor, New York City, 418 Sixth avenue, formerly 127 Nassau street, near John ; for several years he was located at Broadway and Prince streets, then 264 Broadway, and one year, 127 Nassau ; moved to present location last May; he declines giving any information; he is believed to be working with his wife’s "money; is stated to have failed two or three times; regarded as of little responsibility, and jobbing houses in the city say they would sell him only for cash.’ That report was spread upon the books of the Bradstreet Company June 20, 1881; it was put on file and distributed to those who inquired.”</p> <p>Q. “Did you, after that.date, call upon Mr. McKinley and have other conversation about a report ?”</p> <p>A. “Yes sir; after his failure.”</p> <p>The court below dismissed the complaint, on the ground that “Bradstreet & Company were, for the purposes of the trial, the plaintiffs’ agents. The information which they communicated to the plaintiffs required the plaintiffs subsequently to ascertain whether they had received further information which qualified the former representations.” The latter information, spread upon the books of Bradstreet & Company on June 20, before any of these bills were contracted, was that the defendant was doing business with his wife’s money, and was of little or no responsibility. The plaintiffs were bound to ascertain whether there had been any change in the report to the agency or otherwise. In law, the plaintiffs are chargeable with the knowledge of that further report made to their agents. The complaint must be dismissed.”</p>

The litigation arises out of a transaction which took place about October 23, 1868, between the plaintiff and one Cobb, resulting in the sale by Cobb of certain wheat.

<p>Appeal from judgment in favor of the defendant directed by a judge sitting at special term for the trial of issues without a jury,- and from order allowing an amended answer.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendant from judgment in favor of plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial. The facts are stated in the opinion.

<p>Exceptions ordered to be heard at general term on the dismissal of the complaint at trial term, at the close of the plaintiff’s case.</p> <p>The complaint alleged that the plaintiffs were the owners of a quantity of household furniture delivered by them to one Juliet Schoenrock on November 30, 1878, upon an agreement of lease and conditional executory sale, and that on July 12, 1879, the defendant wrongfully took and converted, and unjustly detains the same ; that Mrs. Schoenrock made default in the payment of the rent reserved for the use of the furniture, that the plaintiffs had not agreed to extend the time for the payment of the accrued rent, and were entitled to the immediate possession of the property ; that on July 30, and after Mrs. Schroenrock had made default, the plaintiffs demanded the return of the property to them, but that the defendant retains it to their damage, &c. There were similar allegations in regard to a quantity of furniture delivered to Mrs. Schoenrock by the plaintiffs on December 3. The plaintiffs also made a similar claim upon an assignment to them in relation to certain household goods delivered to Mrs. Schoenrock on November 23,1878, by one Stephen A. Spencer. The answer was a general denial.</p> <p>The agreement on which the furniture first described in the complaint was delivered to Mrs. Schoenrock, was as follows: “This agreement, made by and between Bohde Bros, of the first part, and Mrs. Ernest Schoenrock, daughter of Gen. A. G-ridley, of 244 West Fifty-sixth street, city of New York, county of New York, of the second part, witnesseth : The party of the first part hereby rents furniture and bedding, as per schedule, [then follows list] to the party of the second part, for the period of twelve months, from the date hereof, for the "consideration of one hundred and fifty dollars paid down and the sum of fifty or more dollars a month, payable promptly at the office of said Bohde Bros., 414 Sixth Avenue, corner of Twenty-fifth street, New York, on the first day of each month consecutively, during the continuance of said agreement, commencing on the nineteenth day of November, 1878. And the party of the second part agrees to use the said furniture with proper care, and pay for the use thereof, the said several sums above mentioned as there specified. In case the said party of the second part shall fail to make said payment on the days above named, unless by special agreement, or shall, in any way, violate any of the agreements hereto, the right of possession of the said furniture shall thereupon revest in the said party of the first part. And it is further agreed by and between said parties, that if the party of the second part shall at any time within three months from this date, pay.to the party of the first part the sum of $729.30, the party of the first part will, on receipt of said sum, deliver to said party of the second part all the articles mentioned in schedule as above, with a receipted bill of sale, and it is further agreed by and between said parties, that if full amount is not paid in the period of three months, the sum of $35 is to be added to the sum above named, and it is further agreed between said parties, that fifteen days grace will be allowed on each payment, and at the expiration of twelve months, if full amount is paid, to deliver the above goods with a receipted bill of sale thereof, but this further agreement is not to be understood as in any way affecting the agreement to rent the furniture as above ; which rented furniture is, and shall remain the property of said party of the first part, until he otherwise hereafter disposes of it, and is not to be removed from the present residence of the party of the second part, without full authority in writing from the party of the'first part hereto. In witness, etc.”</p> <p>The agreement of December 3 and the agreement with Spencer were in substance like the above, except that in the Spencer agreement Mrs. Schoenrock was to pay $50 down, and $50 a month, payable promptly at Spencer’s office on the 15th day of ea ch month, consecutively, during the continuance of the agreement, commencing on January 15.</p> <p>On the trial the plaintiffs proved the delivery by them to Mrs. Schroenrock of the furniture described in the first two counts of the complaint, and that she paid, at the time of the first delivery, $145; January 17, $50; April 4, $100 ; May 2, $25,—in all, $320 on account of the first contract. Hothing was paid on account of the second. On May 2, Mrs. Schoenrock told one of the plaintiffs that she and her husband were going to Europe; whereupon he said he would wait for further payments on her contracts with him until she got back, she stating that she would likely be gone some time, two or three months. The plaintiffs also proved the delivery by Spencer to Mrs. Schoenrock of certain furniture, and the subsequent assignment of his claim to the plaintiffs. Mrs. Schoenrock paid Spencer at the time of the agreement $50, and on April 4,1879, $25, and nothing thereafter. Spencer testified with reference to the transaction, “ I allowed the matter to run along different from the contract. I knew of her going to Europe about the time she went.” But both he and Mrs. Schoenrock testified that there was no agreement or statement on the part of Spencer that he would wait for further payment until her return from Europe.</p> <p>Mrs. Schoenrock placed this furniture in a French flat house, 244 West Fifty-sixth street, owned by the defendant. This flat had been rented from the defendant by her husband. She, with her husband,' went abroad on May 5, 1879, leaving this furniture in those apartments in charge of a servant. She returned July 26, 1879, and upon going to the apartments was denied admission, and ascertained that the furniture left there had been sold at auction by the defendant’s direction and bought in by him.</p> <p>On July 12, 1879, the defendant took possession of the premises and sold the furniture in question at auction, himself being the purchaser, for the sum of $144. There is a mention in the bill of sale that the sale was upon a chattel mortgage ; but there was in fact no chattel mortgage, although there had been some conversation between Mrs. Schoenrock and the defendant, before her departure for Europe, about giving a chattel mortgage to secure the rent which should accrue' during her absence. On July 29,1879, written demands upon the defendant were made by the Bohdes and by Spencer through their attorney for the return of the furniture in question.</p> <p>The trial judge dismissed the complaint at the close of the plaintiffs’ case, on the ground that “the plaintiffs have not made out a case, not having proved that they demanded payment of the installments from Mrs. Schoenrock and that sire refused to pay them; that, therefore, they had not shown that they are entitled to'possession.”</p>

Appeal by plaintiff from judgment dismissing complaint as ordered on trial before a jury. The complaint was for goods sold and delivered to the respondent and the other defendants as partners in trade. The answer denied each of the allegations excepting such as were thereinafter expressly admitted.

Motion by respondent to dismiss appeal. The plaintiff brought this present action for libel, and recovered judgment. From this judgment defendant took the present appeal. The plaintiff, after the entry of judgment, brought another action for libel against the defendant.

Appeal by plaintiff from order approving an undertaking given by the defendant on an appeal from the general term to the court of appeals. The undertaking was signed by the defendant. No sureties were given, but the performance of the. undertaking was guaranteed by a corporation called the Fidelity and Casualty Company.

<p> .Negligence—interference with the highway.—Evidence—declaration of servant, when admissible against master. </p> <p>Whenever a natural person or a corporation is authorized by way of duty or privilege, to disturb the surface or bed of a highway, in the exercise of the right,due diligence must be used to prevent accidents to wayfarers.</p> <p>This obligation is independent of the obligation to do the work skillfully, and is not lessened by the fact that the right to. interfere with the highway is exercised by means of a contract with other persons. The duty is imperative, so long as the interference with the highway exists, and no notice thereof is necessary to charge the party exercising such, right.</p> <p>In an action against defendants to recover for damages from an accident happening through a breach of such an obligation, evidence to show that on the night of the accident a watchman employed by defendants, stated “ that it was his last night as watch, and he didn’t think it worth while to put lamps out on the holes,” is inadmissible against said defendants, and its reception is error, demanding a new trial.</p>

Appeal by plaintiff from judgment entered upon decision of a judge, trial by jury being waived. The plaintiff was a depositor with defendant. One Morgan was plaintiff’s bookkeeper, and had the key of the safe.

Action, for specific performance. Certain conversations and letters were received in evidence “ágainst plaintiff’s objection and ■ exception,” tending to show that the execution of the contract in suit by defendant was understood to be conditional, etc., and also tending to show knowledge by defendant that the bonds referred to in the contract were owned by defendant, as executor, and were at the time of the execution of the contract and when this suit was brought, held by a…

Appeal by defendant from judgment in favor of plaintiff entered upon verdict and from order denying motion for a new trial made upon the judge’s minutes. The facts and exceptions appear in the opinion.

<p>Appeal by a defendant in an action for foreclosure of a mortgage, from certain provisions in the judgment of sale, etc.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendant from order denying motion to open judgment entered for want of answer. The action was to recover the sum of $87.50 upon contract. Before the time to answér had expired, the parties, without the intervention of the attorneys, made a settlement, by which the defendant paid to the plaintiff the sum of $50, in satisfaction of the claim made in the complaint. It did not appear conclusively that this settlement included the costs of the action.

Appeal by plaintiff from order requiring plaintiff to give security for costs under section 8268 of the Code of Civil Procedure. The action was begun in December, 1877. The motion below, that plaintiff give security for costs, was made in September, 1882.

<p> Pleading—construction of.—Order of a/rrest.—'False representations. </p> <p>In an action to recover damages for inducing plaintiff to part with his money by false and fraudulent representations, the complaint alleged that defendant stated to plaintiff that he (defendant) was “ the sole owner of the stock of a certain corporation .... which company owned and held the title to about thirty-three acres of land situated at Appalachicola, Franklin county, Florida, having thereon a large and valuable saw-mill .... water front .... wharves, all of which he represented to be of great value and a rare investment.” The complaint further stated that defendant “ pretended to point out to plaintiff the metes and bounds of said lands,” and “ further pointed out that the company’s land included, etc.” Defendant’s ownership of the stock was fully proven by his affidavits.</p> <p>Upon a motion to vacate an order of arrest,—Held, that the clause “which company owned, etc.,” and those which follow, are to be deemed descriptions of the property made by the pleader, and not allegations of statements made by defendant to plaintiff; that the allegation “all of which he represented to be of great value, etc.,” concerns a matter of opinion, not of fact; that the words “ pretended to point out,” and “ pointed out,” are not the equivalent of said or represented; and that, as the above were the false representations relied on, and as they were not stated in the complaint with definiteness and certainty sufficient to constitute such a cause of action, the order of arrest must therefore be vacated.</p>

<p> Demand—when necessary in action to recover goods obtained on false representations.—Attorney—credibility of, when witness in behalf of client.—Commercial agencies—statements to. </p> <p>In an action brought to recover the possession of certain goods alleged to have been obtained by false representations, as against one who innocently took and held said goods as assignee for the benefit of creditors of the vendees, a demand must be shown; but in such case no demand is necessary as against the vendees who made the assignment.</p> <p>That the assignee in such case claims in his answer to own the goods, and through the sheriff retakes them, does not obviate the necessity of proving a demand on him.</p> <p>Where the sole evidence of a demand is given by one of the attorneys for plaintiff, as he is not to be deemed a disinterested witness, and his credibility is a question for the jury, the court should not on his testimony withhold the question of the demand from the jury.</p> <p>In such an action the evidence showed that four or five months previous to the sale in question, defendants stated to a commercial agency that their liabilities were §4,500, and their assets §35,000, which statement was false, and known by defendants to be so; that the statement was made with intent to deceive; and that learning of this statement and relying upon it, etc., plaintiffs made the sale in question to defendants upon credit. Held, that plaintiffs had a right to presume that defendants solvent condition would continue to the time of the sale, and that if defendants fraudulently concealed their insolvency from plaintiffs the sale was void.</p> <p>Evidence was admitted showing that defendants made similar representations to other persons about the time of that in question here. Held, no error. 1</p>

Appeal by defendants from judgment entered on verdiet for plaintiff and from order denying a motion for a new trial made upon the minutes. The facts are stated in the opinion.

Appeal by defendant from order permitting plaintiff to sue, as a poor person, under Code of Civil Procedure, § 458 et seq. The facts appear in the opinion.

Appeal by plaintiff from order vacating an order of preliminary injunction. The action was for judgment restraining the defendants, who were respectively the mayor, the comptroller, and the commissioners of public works, of the city of New York, from granting to the Equitable Gas Light Company, a corporation formed under L. 1848, ch. 37, the right to lay gas-pipes in the streets of this city, etc.

The motion was made on the ground that the attachment was contrary to the provisions of U. S. Rev. Stat., § 5242, the defendant being a national bank. The motion was. made by the receiver of the property, etc., of the de-, fendant. The action is to recover the amount of a certificate of' deposit for $5,0.00 issued by defendant October 6, 1881, payable to the order of one George E. Horne on demand, and assigned to plaintiffs.

Appeal by plaintiffs from order vacating an order of arrest as to defendant Charles B. Kendall. The order of arrest was made under Go. Civ. Pro. § 549, subd. 4. The complaint was upon contract, and alleged that the defendants were guilty of a fraud in contracting the liability.

Appeal by defendants from judgment entered upon verdict in favor of plaintiff, and from order denying motion for new trial made upon the minutes. The action was for damages for personal injury sustained by plaintiff in slipping upon snow and ice, negligently permitted by defendants to lie upon the sidewalk of a public street in the city. The facts and defendants’ exceptions appear in the opinion.

<p> Examination of party before trial—purpose of—when vacated. </p> <p>If the papers upon which is granted an order for the examination of a party before trial, show upon their face that it is to be used not to obtain evidence for the trial, but for another object, the order should be vacated.</p> <p>Whether this so appears is to be ascertained by construing the affidavit as a whole.</p>

entered September 4, 1883, against the defendant for $4,855.08, and from an order denying a motion for a new trial on the judge’s minutes. Defendant’s counsel moved at the close of plaintiff’s case for a non-suit, on the ground that under the evidence in this case the claim appeared to be barred by the statute of limitations; which motion was denied; defendant excepted. The facts and other exceptions appear in the opinion.

<p>Appeal from an order of special term denying a motion made on behalf of the plaintiff for a bill of particulars of the ‘1 obvious fraud ’ ’ alleged in the defendant’s answer.</p> <p>The facts appear in the opinion.</p>

<p> Injunction pendente lite against the doing acts based on an act done, which, is illegal as contravening a positive statute. </p> <p>1. Dissolution of, not granted, either because The plaintiff’s pecuniary interest is small, or because</p> <p>the injunction -will afford him. but little protection or relief, or the denial of it inflicts on him but little injury, or because</p> <p>persons through the act done, have bona fide acquired rights, and an interest in having the acts done which are sought to be restrained, or because</p> <p>the statute violated by the doing of the act done has prescribed the appropriate and only remedy therefor,</p> <p>or</p> <p>for all these reasons combined.</p> <p>2. Issue of injunction in such case, what sufficient gbound fob. That the plaintiff has some pecuniary interest however small, in having the acts restrained, and that the restraint may afford him some protection or relief is sufficient.</p>

<p>Appeal from a judgment in favor of the plaintiff for $8,934.68. The action was tried by Judge Truax, without a jury. The facts.are stated by the court.</p>

The jury in this case having found a verdict for the plaintiff for $126, the court ordered the exceptions of the defendants to be heard in the first instance at general term. The facts are stated in the ojfinion.

<p>Appeal from judgment in favor of the defendant entered on a verdict of a jury, and from order denying motion for new trial on the minutes.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a motion for new trial on the minutes.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendant from judgment entered on order of special term overruling demurrer to the complaint, and ordering judgment for ’plaintiff. The action was to recover the possession of certain goods obtained from plaintiff upon false representations, made to a commercial agency.

<p> Negligence—use of door under hatchway in store Try customer. </p> <p>Where it appeared that plaintiff and other customers of defendants had been in the habit, with defendants’ permission, of using a certain door in their place of business for exit and . entrance, which door was obviously intended for the transfer of freight, etc., and not for the use of customers, —in an action by plaintiff to recover damages for injuries caused by the falling of a hogshead through a hatchway above said door while plaintiff was entering the store, defendants are not entitled to have the jury charged that plaintiff, in entering by said door, took all risk of so doing. By giving such permission, defendants assumed a duty to plaintiff of protecting her from negligence.</p> <p>The question whether permission was given by defendants'so to use said door, is presented to the jury by evidence that prior to the happening of the accident, it had been used by plaintiff and others for exit and entrance.</p> <p>Where, in such case, the evidence shows that immediately before entering said door, plaintiff was met by one of defendants’ employees, who told her in a loud voice and with an excited manner and pushing her slightly, not to enter, defendants are not entitled to a charge that, “if the jury believe that plaintiff was directed by an- employee of defendants not to enter said door, and through heedlessness or inattention she did not hear what was said to her, or hearing it disregarded the warning, the defendants are not liable.” First, because the request implies that it was enough if said person were an employee, though plaintiff were ignorant of the fact; and second, because plaintiff, in either event, is not, under the circumstances, chargeable as matter of law with want of due care.</p>

Appeal by plaintiff, from judgment of nonsuit at trial term. The action was for damages, alleged to have occurred from the negligence’of defendant’s servants. The facts and exceptions appear in the opinions.

Appeal by plaintiff from judgment entered upon verdict of jury in favor of defendant.

62, damages and costs, and from an order denying a motion for a new trial.

<p> Order of arrest—jurisdiction—undertaking.—Irregularity, how waived. </p> <p>Semble,that the failure of the judge granting an order of arrest to require from the plaintiff an undertaking in an amount at least equal to one-tenth of the bail required by the order, in compliance with § 599, Code Civ. Pro., is an error, rendering the order void for want of jurisdiction. *</p> <p>But such error is waived and cured where after arrest thereunder, defendant, obtains an order to show cause in which he claims relief in the alternative, either that the order should be vacated and set aside on the merits and for irregularity (which is not specified, as required by rule 37), or that the amount of bail required in said order be reduced, upon which application the bail is reduced to an/amount bringing the plaintiff’s undertaking within the requirements of § 599, Code Civ. Pro.</p>

<p>Appeal from a judgment dismissing plaintiff’s complaint.</p> <p>The facts appear in the opinion.</p>

Appeal by defendant from a judgment in favor of plaintiff and against the defendant, for $5,618.74, entered on the verdict of a jury, by the direction of the court. The facts appear in the opinion.

Appeal by plaintiff from judgment ordered at special term, dismissing the complaint. The facts are as follows: There were two parcels of land in the city of New York, which may be called respectively A and B. Upon A there was a first mortgage and also a second mortgage, which second mortgage was also upon B. B was conveyed to the plaintiff, and was made by the conveyance subject to the mortgage upon it, it being recited that such mortgage rested in part upon other land.

31, damages and costs, and also from an order denying defendant’s motion for a new trial on the judge’s minutes, and to set aside the verdict.

02. The facts are as follows : One Lewis Beckel sued George M. Mittnacht to recover the possession of a certain safe, keys, &c., or their value; in that action the defendant was arrested for eloigning the property, and gave an undertaking upon arrest, his bail being the defendants in this action. Said action was tried and resulted in a judgment for the plaintiff Lewis Beckel; execution was duly issued therein and returned unsatisfied.

Appeal by plaintiffs from order vacating attachment. The plaintiffs were owners of the brig James Miller, and the defendant a foreign corporation. The action was- to recover damages for injuries done to the brig by collision with a steam lighter belonging to the defendant, at a port on the Texas coast. The summons and complaint were personally served upon defendant’s secretary in this city on-July 8, 1882..

<p> Contract—when extrinsic evidence admissible to explain phrase m. </p> <p>Where the defendants, who where book-publishers, employed the plaintiff to canvass for certain'serial publications, under a written contract, in which they agreed to pay him “four dollars an order” for the subscriptions taken by him; in an action by plaintiff for his commissions,</p> <p>Held, that extrinsic evidence was admissible to show that said phrase had a well-settled meaning in the business, understood by both parties, viz.: four dollars for each bond fide subscription taken for the whole work, after the subscriber had accepted and paid for ten parts thereof.</p> <p>Further held, that the books of account of defendants, the publishers, containing statements of subscriptions obtained by plaintiff, and other agents, of which latter there was_no proof that defendant had knowledge, were admissible in proof of the meaning of said phrase.</p> <p>Further held, that in determining whether or not said phrase was so clear and definite that extrinsic evidence is inadmissible, regard must be had to the consideration that it was used in a contract which had pecuniary gain for its object and to describe the means by which it was to be reached.</p>

<p> Amended answer—right to serve, waiver of. </p> <p>The defendant’s right to amend his answer as of course, is not waived by his service thereafter of notice of trial.</p> <p>Under section 542 of the Code of Civil Procedure, the plaintiff has no right to demand that such an answer be stricken out, unless it appears that it was amended for purpose of delay.</p>

This action was tried- before the court and a jury. The court ordered a verdict for the plaintiff, and then directed that the exceptions be heard in the first instance at the general term. The facts of the case are as follows: The defendant was and still is a corporation, duly organized and existing under and by virtue of chapter 319 of the laws of the State of New' York, passed April 13, Í848, and of the several acts amendatory thereof.

Appeal by defendant from judgment for plaintiff entered on verdict, and from order denying motion for new trial, made upon judge’s minutes. The action was for damages to plaintiff, from the alleged negligence of defendants. A motion was made to dismiss the complaint, which was denied, to which and various other rulings, exceptions were taken, the ground of which is stated in the opinion.

<p> Partnership—evidence of—agreement to share profits of single partner.Oeneral Term—duty of on appeal. </p> <p>A. and W. entered into articles of copartnership, providing that the profits and loss should be divided forty-five per cent, to A. and fifteen per cent, to W., thirty per cent, to be left undivided, and if no other disposition thereof were made, to be divided as above; also providing that said thirty percent. “ will be credited to A., and it is understood that where both parties of this contract agree, they may annually divide part or the whole of the profits.” Some months thereafter, W. wrote to G. a letter which was signed by A. in his own name, offering G. of the said “mercantile contract . . . between W. and myself, thirty per cent, of the profits .'. . of which I represent seventy-five per cent., you to answer . . . for any loss,” etc. This proposal was accepted by G. in writing.</p> <p>Held, that the above facts show that by agreement between both of the original partners, G. became entitled to thirty per cent, of the profits of the partnership business, and also liable for the losses, and therefore, became a partner in the firm, and not merely a sharer of the profits of A.</p> <p>It is the duty of the General Term, on appeal, to find whether or not the case as it was, supported the holding of the judge below, e. g., that plaintiff was a partner—where the ground upon which the judge rested the holding as stated in the appeal book, is not sufficient to sustain it.</p>

, Appeal by defendants from judgment entered on verdict of jury, and from order denying motion for new trial made upon the minutes. c .The action was brought to recover damages for the refusal of the defendants to accept 200 casks of sauerkraut, under a written agreement, by which they bought from the plaintiffs that number of casks, to be shipped by a November steamer from Hamburg to Bremen, the goods to be of good, merchantable quality.

Appeal by plaintiff from judgment that his complaint be dismissed. The action was for damages from negligence. The plaintiff was a seller of newspapers. He walked along Mott street, intending to go into an eating-house on that street. His sight was imperfect; when he had gone near the eating-house, about nine feet from it, thinking that he had reached, it, he turned and went up steps that, in fact, belonged to defendants’ warehouse.

<p>Appeal from judgment entered on verdict for plaintiff directed by court.</p> <p>The facts appear in the opinion.</p>

Appeal by plaintiff from an order granting motion for new trial, made by defendant after verdict for plaintiff. The action was for damages for a breach of covenant to repair. The plaintiff had a verdict. The defendant moved, for a new trial upon the minutes of the judge. The motion was granted, and the plaintiff appeals from the order entered on this motion. The facts appear in the opinion.

Appeal by plaintiff from judgment entered upon direction of judge at trial term that the complaint be dismissed* upon the ground that it did not state facts sufficient to constitute a cause of action.

<p>Appeal by defendant from order denying defendant’s motion to vacate order of arrest.</p> <p>The facts appear in the opinion.</p>

<p>Appeal by defendant from judgment entered on decision of judge.</p> <p>The facts appear in the opinion.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint, and from an order denying a motion for a new trial on the judge’s minutes.</p> <p>The facts appear in the opinion.</p>

The stipulation in action No. 3 was to the effect that the verdict of the jury, or direction or order of the court, in certain other actions between the same parties should be taken and considered as having been rendered and made in this action.

Appeal by. defendant from judgment for plaintiff entered in a verdict of jury, and from order denying a motion for new trial made upon the minutes of the judge.

Appeal by plaintiff from judgment entered on verdict in favor of defendant, and from order denying motion for new trial made upon judge’s minutes.

Appeal by defendant, from judgment entered on verdict by jury. The action was for damages for personal injury caused by defendant’s negligence. The facts and exceptions appear in the opinion.

Appeal by plaintiff from order vacating an order for examination of defendant supplementary to execution. The facts appear in the opinion.

One James Moore was surety on a bond in which he bound himself, his heirs, executors, and administrators. He died, leaving a will, which was duly proven. By this will he devised a portion of his real estate to three of the defendants, and all the residue of his real estate to Ellen Fagan and Mary J. Magnes.

This is an appeal from a judgment in favor of plaintiff, entered upon the report of a referee, and also from the order of reference. The action was brought to recover damages for breach of a contract entered into, February 12, 1881, between the plaintiffs and the Economy Packing Company, a corporation organized under the act of February 17,1848.

This action was tried before the court without a jury. The plaintiff and the defendants appeal from the judgment rendered. The facts are stated in the findings made by the trial .court, substantially, as follows : Plaintiff recovered a judgment against defendant Henry Tutte, for $494.76, June 19, 1882. Execution was issued upon said judgment and returned unsatisfied.

Appeal by plaintiff from a judgment in favor of defendant entered on verdict of a jury. The facts and exceptions are stated in the opinion.

This is an action for alleged false representations by defendant of the credit of third parties, viz., the firm of D. W. Bloomberg & Co,, through which plaintiff sustained damage. After issue joined, defendant, at special term, moved for leave to interpose a supplemental answer, setting out facts, which he claimed transpired after the filing of the original answer, and constituted a defense to the action.

49, entered on the verdict of a jury. The action was brought by Hess Bros. & Go., stock brokers, to recover from the defendant, as executrix, an indebtedness .of $9,437.98, with interest from January 8, 1881, arising oiit of transactions had with defendant’s testator. Various exceptions to refusals of the court to charge the jury as requested were taken, which, together with the facts, are set forth in the opinion.

<p> Assignment in fraud, of creditors.—Judge's charge.—Evidence.—Burden of proof. </p> <p>In an action against the sheriff to recover the possession of certain chattels alleged to have been wrongfully taken under an execution against a third party from whom plaintiff claimed title, where the evidence showed that the transfer to plaintiff was made by said judgment debtor in fraud of creditors and was not followed by change of possession, etc., the judge-charged the jury, in the language of the statute, that the transfer was presumptively fraudulent and void as against creditors, and that the presumption was conclusive unless it be made to appear on the part of the person claiming under the transfer, that it was in good faith, etc., to which plaintiff excepted. Plaintiff testified that the consideration was §1,000, and that he paid §600 in cash, and the rest by satisfaction of an antecedent debt. There was no request to charge that if the jury believed the assignment to have been made for a valuable consideration » the burden was on defendants to show knowledge of fraudulent intent on plaintiff’s part.</p> <p>Held, that a verdict for defendants should not be disturbed, and that the jury were not bound to believe plaintiff’s testimony as to the cash payment, he being an interested party.</p> <p>Further held, that the burden was upon plaintiff to show that goods acquired after the transfer which were levied on by the sheriff, were paid for by plaintiff.</p>

Application by plaintiff for judgment on a verdict of a jury, subject to the opinion of the court at general term. The facts herein are the same as in the preceding case.

Appeal by plaintiff from j ndgment entered on report of referee dismissing the complaint. The action was for alleged equitable cause. The plaintiff sought to enforce a cause of action in a Massachusetts corporation assigned to him. He gave facts tending to prove the cause of action, and to show that it had been assigned to him he offered in evidence a written transfer signed in the name of the corporation, by its treasurer, with the corporate seal affixed.

Appeal by plaintiff from judgment in favor of defendant dismissing the complaint, upon the order of the judge at trial term. The action was for damages to plaintiff, through the alleged negligence of defendants in permitting to remain in the sidewalk of a street an iron vault-cover having a surface so smooth and slippery that it did not furnish a safe foot-hold for passengers.

<p>Hearing upon a writ of certiorari, the return thereto, and the papers upon which the writ was granted, under Code of Civil Procedure, § 3138.</p> <p>The following facts appeared on the record: The relator was chief clerk in the Bureau of Inspection of Buildings, a subordinate bureau of the Fire Department of the city of Hew York, and charged with the duty of administering and enforcing the building laws of the city {Laws 1883, Ch. 410, § 417).</p> <p>An owner of the building presented himself before the relator while acting as chief clerk of the bureau with plans and specifications for an alteration of the building, and made application in due form for permission from the Inspector of Buildings to proceed with the alteration, and also said that he would like to go on with the alteration before the permission would be given. The relator answered, that it was necessary to have the Inspector’s approval, as well as the examiner’s report; but as the Inspector was out of town, it could not be done, but that the Inspector having left instructions to act in matters that “ we thought the Inspector would approve of during Ms absence,” he, the relator, told the applicant that he could, proceed with the work. The applicant began to make the alteration on the day of the application. The next day the relator sent an examiner to the building who, on the following day, reported against the application. The Fire Commissioners notified the relator that they proposed to dismiss hirfi from his clerkship, specifying as the cause of the removal, the facts that have been stated. The relator was heard before the Board, and thereupon was dismissed by order. The relator procured the writ of certiorari to review the proceedings of the Board in the matter.</p>

Appeal by defendants, from an order denying their motion for a reference. Defendants are stock-brokers. The plaintiff claimed judgment in the sum of $9,861.43., for money, which she alleged she deposited with them as bankers.

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

It appeared from the petition that the action was for an alleged conversion by defendants of the contents of a certain printing office of which plaintiff claimed to be the -owner, and that the defense was that the property was taken in execution on a judgment against one Belden, the the real owner thereof, and on the 26th of August, 1875, bought in good faith, and for value, by defendants, on a .•sale by the sheriff; further, that any transfers of the property by Belden to…

<p>Motions—renewal of—when leave must be obtained.—Reopening of judgment— order upon.</p> <p>A motion addressed to the discretion of the court cannot be renewed upon the same or substantially the same state of facts, unless leave thereto has been obtained; and failure to • obtain such leave furnishes ground for reversal of the order granted on the second application.</p> <p>Amotion to reopen a judgment, addressed to the discretion of the court, should not be granted where the applicant fails to establish either default, surprise, inadvertence or excusable neglect.</p> <p>Upon an application to reopen a judgment, after,trial upon the merits, before a referee, appointed to try the whole issues, an order cannot be made directing the referee to take certain testimony concerning the issues and report with his opinion to the court the judgment meanwhile to stand as security, etc. A judgment on a referee’s report cannot be so reviewed.</p>

Appeal by plaintiff from an order granting to the defendant an inspection of certain books and papers in the possession of plaintiff, for the purpose oí properly drawing the answer. The books, papers, etc., of which an inspection was desired, were the following:—the journal and ledger kept by defendant as superintendent of plaintiff ; a certain balance sheet taken therefrom ; and certain vouchers in support thereof. Further facts appear in the opinion.

Appeal by defendant from judgment in favor of plaintiff •entered upon the report of a referee. Action to recover against the representative of a deceased partner for services rendered to their firm, upon the allegation that the surviving partners are insolvent.

Exceptions taken by plaintiff heard in the first instance at general term.

<p> Contract for sale of docle property—construction of terms of sale —repairs to he made in discretion of commissioners. </p> <p>C. purchased of the Mayor, &c., of the City of New York, the right to use for a term of years a certain pier for wharfage purposes, etc., which sale-was made expressly subject to the published terms of sale, applying also-to rights in other dock property sold at the same time, and which contained the following provisions : “ The Department will make, either prior to the commencement of the lease in each case, or as soon thereafter as practicable, such repairs to any of the above-named premises in the judgment of the commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the term for which leases are sold ; but all the premises must be taken in the condition in which they may be on the date of commencement of lease, and no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the Department No claim will be received or considered by the Department for loss of wharfage, or otherwise, consequent upon any delay in doing the work of repairing, or consequent upon the premises being occupied for repairing purposes.”</p> <p>In an action by the Mayor, &c., for rent falling due about a year thereafter, C. interposed a counter-claim for damages for failure to repair, etc., which the court refused to entertain, substantially, on the ground that there could be no recovery thereon, holding that evidence of the condition of the pier at the time of"the commencement of the lease was immaterial.</p> <p>Held, error that the above provisions in the terms of sale constituted a contract, under which the commissioners were bound to form a judgment,, which need not he oral or quasi-judicial, as to whether the pier in question was in need of repairs ; that whether or not, this judgment was formed could be shown by circumstantial evidence including the force of legal presumptions, and evidence that the pier was in a plainly dilapidated condition, was of this character and therefore admissible.</p> <p>Further held, that the discretion of the commissioners as to the extent of the repairs to be made in each case was not absolute.</p> <p>Further held, that the clauses providing that no claim that the property is not in suitable condition at the commencement of the lease, nor for loss-on account of “ any delay” in making repairs, will be allowed, do not prevent a recovery herein.</p>

Exceptions by plaintiff ordered to be heard in first instance at general term. The action was for damages for the conversion of & policy of insurance.

<p> Statute of frauds.—Promise to pay debt of another.—Original undertaking. </p> <p>"Where one of two creditors of a certain firm holding the notes of said firm for its indebtness, at the request of the other creditor, and to enable the . latter to collect his claim, promises before the same are payable, to delay proceeding on said notes till a certain time after their maturity, in con- . sideration of which the other creditor agrees to pay said notes at the date | named, such agreement to pay said notes is an original undertaking and not within the statute of frauds, and is therefore enforceable, though notin writing.</p>

Appeal by defendant from judgment in favor of plaintiff, on verdict of a jury, and from order denying motion for new trial.

<p>Attachment—service of—what reached by levy—successive levies.—Banking— rights of bank after service of attachment, to pay check theretofore certified.—Notice of bad faith.—Authority— right to delegate.</p> <p>Authority to do acts merely ministerial or mechanical may be delegated ; and, accordingly, the sheriff may delegate to an assistant the power to certify a copy of a warrant of attachment, and make a notice thereof, as required by the Code of Civil Procedure.</p> <p>The Code of Procedure, unlike the new Code, makes no provision for successive levies under an attachment ; but under either Code the only property reached is that on hand at the time of the levy, which is perfected by service of the warrant and notice.</p> <p>The certificate required in case there is property incapable of manual delivery, is. of the property on hand when the levy is made, and it is no part of the levy and does not extend the effect of the service of the warrant and notice.</p> <p>Where a bank certifies a check, and an attachment against the maker is 'thereafter served on the bank, its right to pay the check to any person subsequently presenting it depends on his being a bona fide holder for value (Bills v. National Park Bank, 89 N. T. 343, followed). Whether, in the absence of suspicious circumstances the bank is authorized to consider any one presenting the check a bona fide holder for value ; or, whether it must in such case interplead the holder thereof, with the attachment creditor, quaere.</p> <p>The facts in this case considered and held, sufficient to show notice to the bank of absence of bonafides, etc.</p>

<p>Telegraph companies.— Consolidation i>y lease.—Laws 1870, ch. 568.—Injunc-tion.— Corporations.—Statutory construction.</p> <p>Upon a motion by a stockholder of the Western Union Telegraph Co., to continue a preliminary injunction against the consummation of an agreement for the acquirement by lease of ail the property, lines, etc., of the Mutual Union Telegraph Co., it appeared that prior to the service of the temporary injunction, the transaction had been consummated excepting only the payment of the consideration by the Western Union Co.</p> <p>Held, that as such a transaction between telegraph companies is authorized by Laws 1870, ch. 568, it cannot be enjoined as tending to create a monopoly and contrary to public policy.</p> <p>Said leas'e was intended to cover the property of the lessors in different states, but contained a.clause that it should not be construed to pass title to property in any state where such transaction would be illegal, and made provision for adjustment of consideration in such case. It appeared that the consolidation of telegraph companies was illegal in the state of Pennsylvania where certain of the properly of said Mutual Union Co. was situate,</p> <p>Held, no ground for an injunction; that it is doubtful whether the constitution and laws of a state can be enforced against companies formed under the Jaws of another state and having power to consolidate at home; that whether or not the provision in the lease intended to meet the above objection, is sufficient, the objection is of no force here,- for a partial failure of consideration contemplated by the contracting parties, and with reference to which the bargain was closed, does not justify a court to interfere.</p> <p>Defendant, further objected that the consolidation of the Western Union Co., with the Atlantic & Pacific Co., and the American Union Co., and the increase of stock to pay therefor, and for distribution among the stockholders of the former company, had been adjudged illegal.</p> <p>o Meld, that the decisions made, went only so far as to pronounce illegal the scheme involved in that consolidation, of gratuitously distributing among the stockholders about 15 millions of increased stock, which rendered that particular agreement null and void.</p> <p>It was also objected that the stock and bonds of the Mutual Union Co. referred to in the lease were illegal.</p> <p>Meld, immaterial, if true, since they merely furnish the measure for the agreed rental; that it can make no difference to the Western Union Co. or its stockholders whether the rental is paid to the Mutual Union Co. or its stockholders; that as to the bonds, the Western Union Co. is estopped from disputing their validity.</p> <p>Further, held, as to all of the above objections, that they fail to show want of power, and involve only matters of discretion affecting price and questions of policy, and courts cannot dictate the business policy to be pursued by a corporation, though such discretion may be unwisely, imprudently or even recklessly exercised by it.</p> <p>Daws, 1870, oh. 568, provides that no purchase, sale, lease or conveyance by any telegraph company, under said act, "shall be valid, until it shall have been ratified and approved by a three-fifths vote of its board of directors or trustees, and also by the consent thereto in writing, or.by vote, at a general meeting duly called for the purpose, of three-fifths in interest of the stockholders in such company, present or represented by proxy at such meeting. ” The scheme in question was duly ratified and approved by three-fifths of the board of directors of the Western Union Co., and three-fifths in interest of the stockholders consented thereto in writing.</p> <p>Meld, not a sufficient compliance with the statute, inasmuch as such consent of the stockholders was not given at a general meeting called for the purpose.</p> <p>Accordingly held, that plaintiff was entitled to an injunction against the consummation of the lease in question during the pendency of the action, with leave to the Western Union Co., to convene a general meeting of the stockholders for the purpose of procuring the proper statutory ratification thereof.</p> <p>The principles of the law of corporations and of statutory construction, stated and applied by the court.</p>

Motion to commit sureties on undertaking, for contempt. Susan Egan sued Joseph Lynch, in the superior court, ■claiming$25,000damages foralleged breach of promiseof marriage. Lynch was arrested and held in $10,000 bail, Daniel Peixotto and Horatio M. Sadler being sureties upon the undertaking on which the order of arrest was granted.

' Appeal by defendants from a judgment directing sale of certain real estate, as asked by the complaint and that proceeds be divided, an actual partition being impossible. The plaintiff claimed to be owner of an undivided half of the property and tenant in common with the defendants who were owners of the other undivided half as was alleged by the complaint. The plaintiff derived title by a deed of conveyance made by Babeta Bram on September 28, 1881.

Action for conversion; the ground of arrest was the same. The papers showed that the'defendants, commission merchants in the city of New York, received from the plaintiffs merchandise upon the agreement that defendants would sell the same as agents for the plaintiffs and remit the proceeds of sales to them; that the defendants did sell said merchandise to the amount of about $800, but did not remit the proceeds, but refuse to pay the same.

p in the answer of the defendant and directing judgment for the defendant thereon. Action upon the following section of the Code of Civil Procedure: u § 1902. The executor or administrator of a decedent . . . may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent’s death was caused, against . . . 'a corporation which would have been liable to an action in favpr of the decedent, by reason thereof, if death had not ensued.

<p>Appeal from order fixing the compensation of Charles • W. Dayton, the receiver, etc., of Henry F. Hammill, at the sum of $675.</p>

<p>Appeal from order denying a motion on the part of the plaintiff for an order overruling the defendant’s answer as frivolous, and for judgment thereon.</p>

<p>Appeal from order granting injunction pendente lite.</p>

<p>Appeal by plaintiff from judgment in favor of defendants, entered upon decision of judge Lat special ter.m.</p>

Appeal by defendant from order allowing plaintiff to discontinue the .action against a co-defendant and allowing plaintiff to serve an amended complaint.

Appeal by defendant from order directing a reference to hear and determine and from order denying motion to modify the same.

<p>Appeal by plaintiff from judgment entered on verdict of jury.</p>

<p>Appeal from judgment dismissing complaint with costs.</p>