Volume 18 — Jones & Spencer's New York Superior Court Reports

Appeal by plaintiff, from judgment dismissing the complaint at the close of plaintiff’s case. The action was for an alleged conversion of bonds made by plaintiff.

<p>Appeal by defendant from interlocutory judgment.</p>

Appeal by defendant from a judgment, in favor of plaintiff, and also from an order denying a motion for a new trial. The action was brought to recover damages for the publication of a libel.

The question in contention in this case was submitted to the court in compliance with section 1279 of the Code of Civil Procedure.

<p> Partnership—proportion in which losses are to be'shared. </p> <p>Where one member contributes only mo.ney to the partnership and the other member contributes time, labor and skill, but no money, each contribution is to be set against the other, and in case of failure each loss is to be borne exclusively by the loser without auy right to contribution from the other; though the member contributing money has only one-fourth “interest in the business,” and the member contributing time, etc., has three-fourths.</p> <p>The rule however, is not inflexible, and each case i's to be decided from its own circumstances and the intent of the parties to be deduced therefrom.</p>

Appeal by plaintiff from an interlocutory judgment in favor of defendant. There was an original complaint which was demurred to. The demurrer was overruled, but the plaintiff amended the complaint. The defendant answered. The plaintiff demurred to certain matters set up as defenses. Certain of the demurrers were overruled and others were sustained.

Appéal by plaintiffs from judgment dismissing complaint entered on direction of a judge before a jury. The action, was for the price of goods, tendered to plaintiff under a contract of sale. The facts appear in the opinion.

Appeal by defendant from interlocutory judgment in favor of plaintiff, entered upon an order sustaining plaintiff’s demurrer to a part of an answer that pleaded a nonjoinder of certain parties who it was claimed should have been made defendants. The facts appear in the opinion. I. It is well settled that on a demurrer judgment must be given against the party committing the first error of substance.

Appeal by defendants from judgment entered in favor of plaintiff upon a direction by the court to the jury to find for plaintiff.. The action was upon a promissory note.

Appeal by plaintiff from judgment for defendant, that the complaint be dismissed, entered upon direction of judge, at trial before a jury. The action was for damages from alleged false and fraudulent representations. The facts appear in the opinion.

Appeal by defendants from order denying their motion made at special term upon a case, to set aside the verdict and for a new trial. The motion was made on the ground that the verdict was against evidence and contrary to the law of the case. The facts appear in the opinion.

Appeal by defendant from an order granting to plaintiff an inspection of documents to enable him to draw his complaint. The facts appear in the opinion. I. The agreements to be inspected are the evidences and muniments of defendant’s title to the property which the plaintiff seeks to recover.

Appeal by plaintiff from order granting motion of defendant that plaintiff file in the office of the county clerk certain depositions of witnesses taken in a proceeding, supplementary to execution, instituted by plaintiff. The witnesses were examined in the supplementary proceeding by virtue of section 2444 of the Code of Civil Procedure. Section 2433 declares that such a remedy is a special proceeding.

Appeal by plaintiff from judgment entered on the direction of a judge at trial term dismissing the complaint, and from order denying plaintiff’s motion for a new trial made upon the judge’s minutes. The action was for damages to the plaintiff from the negligence of the defendant in permitting the ceiling of the store rented by defendant to become and to remain broken and loose, so that it finally fell upon plaintiff to his great hurt.

Appeal by plaintiff from order vacating an order for the examination of defendant before trial. The facts appear in the opinion. At the worst, the complaint only alleges the jurisdictional facts imperfectly or not sufficiently at large. But for such defect defendant’s remedy was a motion to make more definite and certain (Code Civ. Pro. § 546), and not a motion to turn plaintiff out of court for imperfecty pleading. The allegations of a pleading must be construed (Code Civ.

Appeal by plaintiff from judgment in favor of defendant entered upon a direction at trial term dismissing the complaint. The action was for damages for personal injury caused, as alleged, by negligence of defendant’s servants. A train of defendant’s struck the horses in a wagon driven by plaintiff, as he was driving over a crossing of defendant. Further facts appear in the opinion.

<p> Certiorari, writ of.—Remoxdl of chiefs of bureau and clerics under the municipal goverment of New Tori. </p> <p>Review of statutes in regard to the removal of incumbents holding office under the city government. Charter of 1857 (chap. 446, §§ 20, 21); charter of 1870 (chap. 187, § 29) Laws of 1873 (chap. 335 §§ 25, 28, 32); construction of the latter, by the court of appeals, in People, ex rel. Mayor, &c. x. Nicholas, 79 N. T. 582.</p> <p>Section 28 of the charter of 1873, as re-enacted in section 48, of chapter 410 of the Laws of 1882 (Consolidation Act), under which the present controversy arose, provides in substance that the heads of all departments „shall have power to appoint and remove all chiefs of bureaus, clerks, &c., in their respective departments, but no regular aleri or head of bureau shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation. The relator 'was a regular clerk under the comptroller within the meaning of § 28.</p> <p>The only questions presented by the record in this case are,—Whether the relator was sufficiently informed of the cause of his proposed removal and whether he was allowed a sufficient opportunity of making an explanation. Upon these questions the decision of the court of appeals, People ex rel. Thomas Keeth v. Hubert O. Thompson, Com’r of Public Works (not yet reported) controls.</p> <p>Held, in accordance with the latter decision, that no trial, not even a summary one. was contemplated by § 28.</p> <p>No testimony is required to be taken as to the basis of the comptroller’s action ; it is enough that he assign a sufficient cause for the removal, and furnishes to the relator an opportunity for explanation.</p> <p>The relator had no absolute right to an adjournment, nor any further notice, as in his petition he concedes that he had had many interviews witli the comptroller, in each of which he had protested against the charge made against him, and therefore was well aware of the full extent of such charge, and all he could do-was to deny the same, but the comptroller possessed the power to determine the weight to be given to such denial and the whole matter, upon facts within his own knowledge or information satisfactory to himself, which he was not bound to disclose.</p> <p>The information given to the relator of the cause of the proposed removal need not be given in writing. In this case, the conversation preceding the service of the formal notice of May 15, 1883, conveyed sufficient information to relator of the cause thereof.</p> <p>.The refusal of the comptroller to hear the relator through counsel was not an abuse of his discretionary powers, and does not constitute a sufficient ground for reversing the removal thereafter made.</p> <p>The question of the reasonableness of the time allowed for making an explanation rests to a great extent in the discretion of the officer clothed with the power of removal, and unless such discretion is abused, the courts will not interfere. -</p>

Action to obtain a limited divorce. Respondent procured . an order by default, granting her $12 a week alimony, pendente lite, and $100 counsel fee. Subsequently, and on December 11, 1882, as a favor to appellant, default was opened, and the matter referred to a referee, to take proof of appellant’s financial ability to pay alimony and counsel fee; the appellant to stipulate to pay the costs and expenses of the reference, which the stipulation appellant gave.

<p>Appeal from an order of the special term denying the application of the petitioner to be appointed special guardian, of his daughter on the ground that the petition does not show the applicant to be a responsible person, within the meaning of the Code of Civil Procedure § 469, and of the 49 th general rule.</p> <p>The facts appear in the opinion.</p>

<p>Motion for a new trial on verdict directed for the defendant on exceptions taken by the plaintiff which were ordered to be heard in the first instance at general term. The facts appear in the opinion of the court.</p>

<p> Sale of stocks, by brokers—to close out or cover stocks purchased and carried for a customer—notice of same, and sufficiency thereof.—Evidence. </p> <p>Where the testimony of the witnesses is conflicting as to the facts of a certain interview between the parties, the jury may determine as a question of fact, as to which of the witnesses they will believe.</p> <p>The judge on the-trial charged the jury as matter of law, that the notice given to defendant by plaintiffs according to defendant’s testimony was insufficient to enable them to close him out without further direction, leaving the jury to determine whether they should believe him or the plaintiffs, and the jury founded their verdict upon defendants version of ■ the facts:—Held to be correct.</p>

<p> Negligence, question of. —Street raib'oad cars, their rights and liabilities. —Public processions and parades, and regulations for their protection and escort. </p> <p>A person injured by a passing horse-car while taking part in a procession or parade upon the public streets, is to be held to the same proof to establish his case as an ordinary passer-by.</p> <p>In these cases, the plaintiS must establish by a preponderance of testimony that he was free from all negligence, and that the defendant was guilty of negligence in' the premises.</p> <p>The statute provides-for protection of street railroad cars, from processions and parades, as also for measures to be taken by processions and parades for protection and escort from the police, while using the streets on their march (Laws of 1872, chap. 590).</p>

<p> Contract for service—salary to be fixed in the future. </p> <p>Where the plaintiff -was employed, September 1, 1881, by the general manager of the defendant, at a salary of not less than $1,800 per annum, to be fixed by the board of directors at their next meeting, and the directors did not fix plaintiff’s salary until February 24, 1882, and then at the rate of $960 per annum, and did not inform plaintiff of the fact until October 81, 1882, when he was discharged,—Held, that the verdict of the jury awarding plaintiff the salary of $1,800 per annum should be sustained.</p>

<p>Appeal from judgment in favor of plaintiff for $1,141.60, on verdict of a jury ; and from an order denying defendants’ motion for new trial.</p> <p>The facts appear in the opinion.</p>

<p>Appeal from judgment at special term in favor of the respondents, dismissing the complaint.</p> <p>The facts appear in the opinion.</p> <p>I. Whatever is declared on the face of an instrument to refer to an annexation such annex is a part of it, and should be read with it (Van Vliet v. Slausson, 45 Barb. 317; Coddington v. Davis, 1 N. Y. 186; Rogers v. Kneeland, 10 Wend. 219); and being part of it should be recorded with it in the county clerk’s office (L. 1877, p. 543, c. 466, §§ 2, 24). Where a schedule is made a part of the conveyance and is referred to as containing the specification of the property conveyed, and was intended to be annexed, it must be annexed not only as a description of the property but as necessary, by the very terms of the instrument, to complete the transfer (Moir v. Brown, 14 Barb. 39 ; Scott v. Guthrie, 25 How. 481). The absence, therefore, of the schedules A and B from the record, leaves it silent as to the persons to be benefited.</p> <p>II. The validity of an assignment for the benefit of creditors takes effect by virtue of the record thereof. This is the inception of it and jurisdiction to permit and entertain subsequent proceedings depends upon this act of recording. These jurisdictional essentials consist of 1, the writing ; 2, subscribing by assignor and assignee ; 3, assent of assignee in writing; 4, acknowledgment by both.; 5, duly recording in the county clerk’s office, and were provisions to remedy an abuse and are to'be strictly followed (Fairchild v. Gwynne, 16 Abb. 23; Taylor v. Trancose, 76 N. Y. 599). An assignment was recorded without an assent of the assignee in writing. Proof of oral assent was held immaterial. The failure to record the assent in writing, rendered the instrument inoperative and void as against creditors claiming under an attachment (Rennie v. Bear, 24 Hun, 123). The instrument designates two schedules alleged to be annexed to it. This renders these schedules part and parcel of the instrument, inseparable from it, to be handed with it for record to the county clerk, and to be recorded with it.</p> <p>The 67 N. Y. 199, cited in the court below, is not an authority. That appeal was dismissed for want of jurisdiction (p. 204). And the schedules in the act provided for are not those provided for by the instrument itself.</p> <p>I. An assignment that passes title is sufficient, although the subject matter conveyed is only generally described. Schedules were not necessities. Says Folger, J.: “The right to assign does not rest upon the statute. The act does not give the right. The right exists at common law. It recognizes the existence of the power in the citizen to make an assignment for the benefit of his creditors, and does no more than prescribe the mode in which the power shall be used.” “It is a statute, not of creation, but of direction ” (Thrasher v. Bentley, 1 Abb. N. C. 39). Says Church, Ch. J.: “ The evident purpose of the statute was to secure a faithful performance of the duties of the trustee under the assignment. The assignment placed the property beyond the reach of the ordinary process of courts, and it was to give creditors security for it in that condition that the act was passed” (People v. Chalmers, 60 N. Y. 154). So far, then, as the assignor is concerned, an assignment by him , without schedules at all is valid. The common law required no schedules, and in the light of the foregoing decisions and the general rule that a general description of the assigned property is sufficient to convey title, this assignment is sufficient. Mr. Bishop states the requisites of such an assignment to be: 1. A conveyance of the debtor’s property, 2. A trust, 3. To sell the property, 4. To distribute the proceeds (Bishop Insolvent Assignments, 106).</p> <p>II. The assignment is complete without the schedules, although schedules be referred to in it. They are not necessarily a part of the assignment. At common law they were not required. The statute does not require them as part of the assignment (Laws 1877, ch. 466 ; 3 R. S. 7 ed. 2276; Kellogg v. Slauson, 11 N. Y. 302; Matthews v. Poulteney, 33 Barb. 127). . 1 ‘ Where the description in the body of the assignment is of all the debtor’s property with a refence to schedules, and the schedules are in fact not annexed, at the time of the delivery of the instrument such omission will not invalidate the assignment” (Birchell v. Strouse, 28 Barb. 293; Platt v. Lott, 17 N. Y. 478 ; Turner v. Jaycox, 40 N. Y. 470; Wronkow v. Killeen, 3 Month. L. Bul. 82). In Produce Bank v. Morton (67 N. Y. 199), held, that an omission to make and deliver schedules did not invalidate the assignment. Here was an omission to comply with a plain statutory direction, absolute and requisite. An omission of assets from schedules does not make the assignment void (Shultz v. Hoagland, 85 N. Y. 464).</p>

Appeal by defendants from a judgment entered upon the report of a referee in favor of plaintiff. The facts in the case appear from the report of the referee, who reported substantially as follows: That the plaintiff is an infant over fourteen years of age, and that on April 3,1882, at a special term of the superior court, an order was made and entered whereby Henry C. Odell was, in due form of law, appointed guardian ad litem for said infant for the purposes of this action.

Appeal by plaintiff from a judgment dismissing the complaint, entered upon the findings of a judge at special term. The facts of the case appear in the opinion of the court. The agreement between Dash and the defendant was not within the statute of frauds.

This case is an appeal from a judgment entered in favor of the plaintiff upon a verdict of a jury. Held: that it was a loss by a peril of the sea, and not by mortality within the proper meaning of this word, as used in the policy.

<p>Appeal by defendants from judgment entered upon verdict of jury in favor of plaintiff.</p> <p>The action was for damages for conversion of check.</p> <p>The court directed a verdict for plaintiff. The facts in the case appear fully in the opinion of the court.</p>

Appeal in an action, begun under the provision of chapter 315 Laws of 1878, in relation to the enforcement of claims, upon money due by the city of New York to contractors. The appeal is by defendants whose claim was by the judgment postponed to the claim of respondents, other defendants. The plaintiff had filed his claim, brought an action within ninety days from the time of such filing and within the same time, filed notice of pendency of the action.

Appeal by defendant Levinus from an interlocutory judgment overruling his demurrer to the complaint. The action was in ejectment against appellant and three other defendants.

This action was brought by the appellant to obtain an injunction to restrain respondent from placing a water-ureter upon the premises of appellant, known as Nos. 26, 28 and 30 Frankfort street, in the city of New York, and the issues in the case were tried at special term, which resulted in a judgment dismissing the complaint, and this appeal is from that judgment.

Appeal by defendant from judgment entered on verdict of jury, and from order denying his motion for a new trial made upon the judges minutes. The action was upon certain promissory notes of defendant, the complaint alleging that the debts evidenced by them were incurred by the fraud of defendant. The facts appear further in the opinion.

There are two appeals in this action, both by plaintiff, one from an order of this court, made at special term, February 21, 1883, that a writ of possession issue directing the sheriff of New York county to deliver to the defendants, the mayor, &c., the possession of the premises the right to which is in controversy in this action ; and the other from an order of this court made at special term, April 2, 1888, denying plaintiff’s motion to vacate the above mentioned order,…

Appeal by defendant Main from judgment in favor of plaintiff and defendants Mulry, foreclosing certain mechanics’ liens, on property of the defendant Main, in the city of New York. The facts are stated in the opinion. I. The notices are not verified as required by the statute of 1880.

Appeal by defendant from judgment entered on the report of a referee. The action was for the recovery of an amount equal to half of the profits of a business done by the defendant as a builder, as compensation to plaintiff, for his services under a special agreement with the defendant. The facts appear in-the opinion.

<p>Appeal by defendants .from an order granting plaintiff’s motion for judgment on the ground of the frivolousness of the answer.</p> <p>The facts appear in the opinion.</p> <p>If the answer is conceded to be true, can the giving of this waiver raise a contract of new promise by the iqdorser, for, that is the object of the plaintiff in pleading the waiver % It is incredible, that a man should be held to have made a promise under such a state of facts. It is elementary law that such a waiver, given after the default of the holder, does not create a new promise without proof that the. indorser in signing the waiver had knowledge of the default when he signed it. By omitting presentment and notice, the holder lost a recourse to this defendant (Spies v. Gilmore, 1 N. Y. 321 ; Cayuga Bank v. Warden, Id. 413 These omissions of the holder may be waived by the indorser’s subsequent promise ; only that promise must be made with full knowledge that he has been discharged by the neglect of the holder (Tebbetts v. Dowd, 23 Wend. 379 ; Story on Bills, § 361; II Daniels Neg. Inst. § 1149).</p>

Appeal by plaintiff from judgment, dismissing complaint, entered upon findings at special term. Action to recover from the defendant, in her representa-. tive capacity, a certain sum alleged to have been dué to the plaintiff from William Ryle in his lifetime by virtue of a contract made between said Ryle and plaintiff. The defendant was charged in the complaint in her capacity as executrix of said Ryle’s estate, by appointment of the surrogate of Passaic county, New Jersey.

This is an appeal from an order made at special term denying the defendant’s motion to vacate an order of arrest, and allowing the plaintiff to amend an affidavit on which the order of arrest was granted, by obtaining a proper certificate of the prothonotary annexed thereto. The order of arrest was granted under subdivision 3 of section 550 of the Code of Civil Procedure, in an action for moneys received in a fiduciary capacity, upon affidavits made by plaintiff and others.

Plaintiff brings this action to recover thirteen hundred and twenty-six dollars for breach of contract.

<p> Order for inspection of boolcs, etc.—when granted </p> <p>The granting of power to search through the books of account to find isolated entries not particularized, to enable plaintiff to frame his complaint, rests in the discretion of the court, and it should only be allowed where the purpose and necessity of such examination are apparent.</p> <p>According, where in an application for an order to examine defendants’ books to ascertain the names of persons to whom defendants had sold certain merchandise in contravention of their agreement to sell only to plaintiff, in order to enable plaintiff to frame the complaint, the petition alleges that defendants did so sell to other persons,—Held, that the application should not be granted; that the knowledge or information which enabled plaintiff to make this distinct and definite statement, was enough to enable plaintiff to frame her complaint.</p>

Appeal by plaintiffs from judgment in favor of defendant entered upon findings of a judge, that complaint be dismissed with costs.

At the close of plaintiff’s evidence and of the case, defendant’s counsel moved to dismiss the complaint, on the fol lowing grounds : First. That there was no evidence of any negligence on the part of the city. Second. That there was evidence of contributory negligence on the part of the plaintiff.

Appeal by defendant from judgment entered upon finding and conclusions of a judge, he trying the issues by consent. The action was for damages for the conversion by defendant of goods and chattels, part of the testator’s estate. The act of conversion, as alleged, was the defendant’s buying and receiving from the plaintiff, before she had taken out letters testamentary, the goods and chattels in question, she selling and delivering them to the defendant.

<p> Demurrer—Misjoinder of causes of action—Valse representations.—Pleading. </p> <p>An alleged cause of action, “that by false and fraudulent representations defendant had induced plaintiff to sign a bond, conditioned for the payment of $1,700, and also a mortgage upon plaintiff’s real estate, to secure the payment of the bond, which were made and executed to a third person by defendant’s request, to whom defendant delivered them, receiving from such third person $1,700, for the same,” may be joined in the same complaint with a second cause of action for the conversion of personal property of the plaintiff by the defendant (Code, § 484, subd. 6; Cleveland ®. Barrows, 59 Bar. 374). The plaintiff had a property in the bond after execution and before delivery (Decker ». Matthews, 12 N. T. 313), and the complaint alleges that defendant obtained the bond from her by false pretenses, thereby taking and tortiously converting the same.</p> <p>Upon demurrer, the presumption that plaintiff will be obliged to pay said bond, will be held sufficient to take the place of an allegation of damage. Where the complaint" avers “that with intent to deceive and defraud the plaintiff, defendant falsely and fraudulently stated and represented certain matters of fact, as to his own financial condition, and as to property owned by him,” etc., such an averment implies a charge that the defendant knew the representations to have been false, or that he knowingly made them (Marie v. Garrison, 83 N. T. 28).</p>

Appeal by defendant from a judgment in favor of the plaintiff for $13,191.97, entered upon the verdict of a jury, and from an. order denying defendants’ motion on the judge’s minutes for a new trial. The facts appear in the opinion.

<p> New trial, on the grounds of surprise, inadvertence and excusable neglect. </p> <p>.Where the facts sought to be proven upon a new trial, were directly involved in the main issue litigated upon the former trial, and had they existed, should have been then and there established, it is a serious question whether a motion is not too late in any aspect of the case.</p> <p>If a party having an election to pursue one of several courses, adopts one of them at a stage of the litigation, at which the election must be made, he is deemed to have waived all others, and this rule must be strictly enforced. ,</p> <p>It is claimed in this case that the counsel for appellant omitted to prove at the trial, the actual payment of a valuable consideration for the bonds for the conversion of which respondent brought this action, and the amount thereof, in consequence of the statements made by respondents counsel to the effect, that he, the said counsel, did not attack the good faith of the defendants. Held, that assuming this statement to have been made, the defendants had no right to be misled thereby, inasmuch as good faith and the actual payment of value on the faith of the bonds, and the proof thereof, were necessary to the establishment of the defense, and plaintiff’s counsel was under no duty to inform the defendants specifically and accurately as to, the exact requirements of their defense in the case.</p> <p>A claim was made that defendant’s counsel was misled as the trial by the action of the trial judge, in ordering a verdict subject to the opinion of the court at general term. Held, untenable. If defendants’ counsel considered such a disposition of the case involved, a sacrifice of some right or advantage of the defense, he should have drawn the attention of the court to the same, and requested a different disposition, which he omitted to do.</p> <p>At the general term, the question relating to the burden of proof was sharply contested between the parties, and the court held that defendants were bound to prove their good faith and the payment of a valuable consideration for the bonds, and also held that there was no such evidence (49 Super. Of. 338). Held, that to grant a party a new trial after such a determination, to enable him to give proof of what he considered and treated as immaterial upon the first trial, although fully involved in the issues, cannot be sanctioned by authority, but on the contrary would establish a dangerous precedent. In every such case a party must be held bound by the course and action pursued by his counsel.</p>

<p>Appeal from order denying motion for stay of proceedings.</p> <p>The facts appear in the opinion.</p>

Submission of controversy without action on case agreed on by the parties named as plaintiff and defendants ; for the purpose of submitting the controversy to this court. The facts appear fully in the opinion.

Appeal by the plaintiff from a judgment in an action for false imprisonment, dismissing the complaint on the merits without costs. The facts in the case appear fully in the opinion of the court. Held: if at all, for the sheriff's acts, by his direction communicated through his solicitors, and such directions are held beyond the attorney’s authority.

The facts are stated in the opinion. The following principles are well settled: 1. When land is paid for by a firm, it is regarded in equity as chattel. 2. It is entirely immaterial in whose name the legal title stands. 3. The possessor of the legal title holds the property in trust for the purposes of the partnership. 4.

Re-argument of plaintiff’s appeal from order of the special term of November 8, 1882, vacating the attachment herein (see former appeal, 49 Super. Ct. 234). A motion was made before issue joined, upon the complaint and affidavit of plaintiff’s attorney, and all proceedings in the action previous to the notice of motion, to vacate the attachment. On the argument of the motion, plaintiff’s attorney read defendant’s answer and his own affidavit.

The judgment was entered on a verdict rendered by a jury in accordance with the instruction of the trial judge. The facts appear in the opinion. I. The covenant in the original lease runs with the land. In fact, the covenant is with P. Lorillard and his assigns (Taylor's Landlord & Ten. §333 ; Piggot v. Mason, 1 Paige, 412; Wood’s Landlord & Ten. 667 to 679). II. It was abreach of that covenant not to provide for renewals in the plural in the covenant of 1840.

<p> Municipal corporations—liability of city of New York for condition of sidewalk in front of public school building.—Notice.—Oity ordinances. </p> <p>In an action against the City of New York to recover damages for personal injuries sustained, by slipping upon ice which had formed on the sidewalk in front of a building the title to which was in the city and which was used as a public school building:</p> <p>Meld, that notwithstanding the city ordinance requiring owners or occupants of dwellings to remove snow or rain which shall freeze on the sidewalk, within four hours, under penalty, etc.—the city cannot be held in such an action as this, without proof of actual or constructive notice of i? the condition of the sidewalk before the happening of the accident ; and further, that the mere fact of ownership by the city raises no presumption of notice.</p>

53 and interest, and from an order denying defendant’s motion for a new trial. Two causes of action are stated in the complaint: 1st. For neglecting to return an execution. 3d. For neglecting to pay over a sum collected, alleged to have been more than $1,500. Further facts appear in the opinion.

The complaint was on a promissory note. The answer, First, “ Denies each and every allegation therein contained except as hereinafter admitted,” and afterwards admits in terms the making of the note, and sets up an accord and satisfaction. Further facts appear in the opinion. Assuming that there was a general denial in the answer, neither before the Code or since, could evidence be given under a general denial that the consideration of a note had partially failed.

The action was brought in June, 1882, to recover possession of a lot oi land in the city of New York. Plaintiff claimed title thereto by inheritance from her father, and it appeared that the property was conveyed to her by a partition deed, dated and delivered about July 12,1848, to which her brothers and sisters were parties, and had not since then been conveyed by her. It appeared that her father left a will, but there was no proof of its contents.

Appeal by defendants from a judgment in favor of the plaintiffs entered upon the verdict of a jury in favor of the plaintiffs against the Metropolitan Elevated Railway Company for $5,000, and against the Metropolitan Elevated Railway Company and the Manhattan Railway Company, jointly, for $15,000, and from the order denying the respective motions of the defendants upon the minutes of the trial judge for a new trial. The facts are fully stated in the opinion.

This action was brought to recover damages for injuries sustained by the plaintiff through the negligence of the defendants. Held: broke, and the plaintiff and the elevator fell into a cellar; that the chain and elevator were new and had been used but eight days, and that the chain was, what is known as a “ three-eighths ’ ’ chain. At the time of the accident the elevator was going down empty with the plaintiff on it. Further facts appear in the opinions.

Appeal by defendants from judgment entered upon verdict of jury in favor of plaintiffs. The facts appear in the opinion.

Plaintiff’s exceptions, ordered to be heard in the first, instance at. general term, after a direction to jury to find for plaintiff, in the sum of $134.13. • Action against an insurance company to recover for damages by fire to certain oil paintings, the property of plain tiff and insured by defendants.

Appeal by defendant from order denying motion to set aside order of arrest of defendant. The action was brought to recover the possession of certain chattels from defendant.

Defendant’s exceptions ordered to be heard in first instance at general term, the court having directed a verdict for plaintiff. Action to open an account stated, to recover $1,550 of plaintiff’s money retained by defendants, being the amount of an alleged draft upon defendants, erroneously charged against plaintiff, in said account.

Appeal by defendant from judgment entered on verdict of jury, for plaintiff in the sum of $20,000. The action was for damages, from the negligence of defendants.*

Appeal by defendant from order denying motion to set aside judgment taken on default of appearance. Appeal by plaintiff from a part of same order that set aside an execution against defendant’s person. The facts'are stated in the opinion.

Defendant’s exceptions. ordered to be heard in first instance at general term, verdict being directed for plaintiff. Action to recover damages upon a breach of an implied warranty of title on a sale of certain machinery by the defendant to the plaintiff, under a contract in writing made between them in the city of New York.

Appeal by defendants from judgment entered on verdict of jury, and from order denying defendants’ motion for a new trial made upon the minutes. This action was brought to recover damages sustained by plaintiff in falling down a stairway leading to the cellar of a certain tenement house, in the city of New York, in which she lived.

It appeared that Daniel McGovern, the plaintiff’s testator, was in his lifetime a liquor merchant, carrying on business at the city of New York, and reputed to be a man of means. At the time of his death he was apparently in possession of a large stock of goods and a valuable good will, the sign over the door of the place of business being in his name, as were also the licenses under which the business was transacted. He left a will which was duly propounded for probate.

Appeal by defendant from judgment for the plaintiff entered upon the findings of a judge at special term.

, Cady, as clerk of arrears, to accept certain arrears of taxes for the years 1861, 1862, 1866, 1867 and 1868. The relator moved for an alternative mandamus and alleged the ownership of the property, the assessment of taxes in the years mentioned above ; she also alleged that said taxes remain unpaid ; that they were a lien on her land; that she had tendered the respondent the amount of such taxes and the accrued interest, and that he had refused to accept the same.

Action to recover $2,000 damages, claimed to have been sustained by the plaintiff, consequent upon being ejected from the cars of the defendant on October 28, 1881.

Questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure. On April 25, 1871, Edward King and William Henry-King were the owners in fee of certain lots of land situate on the Bloomingdale road, between Ninety-sixth and Ninety-seventh streets, in the city of New York. On that day this property was conveyed by them by deed, containtaining the usual covenants, to Richard Brennan.

Appeal by plaintiff from order of the special term, denying a motion to vacate an order for the examination of the plaintiff as a witness before trial, and for the examination of the plaintiff’s body and person to be made by snch physician as may be procured to attend by the defendant. The action was for damages for personal injuries alleged to.have been caused by defendants negligence. The facts appear in the opinion.

Appeal by plaintiff from judgment of the special term on trial of the action by the court without a jury.

The action was brought to recover the value of one-third of certain shares of the stock of the Northern Pacific Railroad Company, issued by said company to defendant, under a contract between said company and defendant, in which contract plaintiff claimed an interest under a memorandum of agreement, between him and said defendant. The defense was a settlement and general release. Further facts appear in the opinion.

Appeal by plaintiff from judgment entered on verdict of a jury. The action was brought to recover the sum of $900 and interest which plaintiff claimed to be the amount agreed upon in settlement and compromise of a disputed claim of plaintiff against defendant, for damages, for the death of plaintiff’s child by falling from a tire-escape of the house hired by him from defendant. The facts appear in the opinion.

<p>Appeal from order requiring security for costs.</p>

Appeal by defendants from judgment entered on verdict of jury against them. The action was against the defendants as sureties, on an undertaking given upon an appeal from a judgment in an action of claim and for delivery of personal property. The facts appear in the opinion. The only question in the case, was as to the right of plaintiffs to possess themselves of these chattels, and as to them, the appellate court did not affirm the judgment, but reversed it.

Plaintiff’s exception to the order of the trial justice directing a verdict for defendant, heard at general term in first instance. Plaintiff’s assignor leased of defendant a house for a term of years at $300 per month. The lease contained the ordinary provisions; a covenant of the tenant to repair, and also a clause as follows: “In lieu of security, party of the first part accepts and the party of the second part agrees to pay to him the sum of $900.

Submission of controversy to the general term. Prior to this submission the-defendant had conveyed to the plaintiff certain real estate in the city bf New York, arid the deed contained a covenant against assessments and incumbrances. Plaintiff claimed that an assessment of forty years’ standing remained a lien upon the premises, and that defendant was liable for the payment of the same by reason of said covenant.

<p>Application for a mandamus to compel the respondents, The Northern Pacific Railroad Company, “to exhibit to the relator the transfer-books of the preferred stock of said company, or other books containing the names and addresses of the holders of the preferred stock of said company ; and to permit said relator, his attorney or clerks to take therefrom the names and addresses of the registered holders of said preferred stock.”</p>

Demurrer by defendant to the several causes of action set up in the complaint, on the ground that the facts stated do not constitute a cause of action. The facts appear in the opinion.

Action for an injunction to restrain defendants from placing poles or wires in Twenty-fifth street, and for judgment directing the removal of such poles and wires as are now erected in said street, between Broadway and Sixth avenue. The facts of the case appear fully in the opinion of the court.

Appeal by defendant (1) from judgment entered in favor of the plaintiff upon a verdict of the jury for the sum of $17,110.08, exclusive of… Held: that this .action was properly brought against the defendant as executor ; (2) thafc, if the plaintiff establishes a breach of contract by the defendant, it is not necessary for the plaintiff to produce, or to account for the non-production of, any architect’s certificate which the contract provided should be procured, at a time…

The case was on the day calendar October 1, when a request was made to the court to fix a day for the trial which would relieve the witnesses from unnecessary attendance. The court denied the application, and stated that the witnesses must be in attendance. They were accordingly in court on October 2, on which day the court adjourned, on account of the sickness of the trial judge, to October 4. On October 4 the case was called.

Motion to modify general term order. The order is to stand, as to its directions for the judgment, neither party to have costs of appeal.

<p>Hearing upon a wit of certiorari, the papers on which it. was granted, and the return thereto.</p>

to correct his minutes, so that the same shall show the fact of the surrender of a license by the defendants during the trial and whether or no such license was surrendered.

<p>Appeal from an order denying a motion made by plaintiff for leave to inspect and to take copies of the defendant’s books.</p>

<p>Appeal from judgment.</p>