Volume 19 — Abbott's New York Practice Reports

The decision on the order appealed from is reported, 17 Ante, 265. The executor on appealing to the Supreme Court from the order allowing the execution to issue, gave a bond, with sureties, in the penalty of only $100, conditioned to prosecute the appeal with effect, and to pay all costs that might be adjudged against him in the Supreme Court.

Peter S. Woodbury and Earl Douglass, two of the defendants in this action, John Kelly, sheriff, being the third, moved for and obtained an order dated February 12th, 1862, that William A. Hinds, the plaintiff, file security for costs, on the ground that he was a non-resident, which order was on appeal affirmed.

Motion to dissolve an injunction. This was a suit for an injunction against the defendants, restraining them from bringing suits against the plaintiffs, and for an order of interpleader. The complaint set forth that the plaintiffs, Abraham Wakeman and John D. Ratting, were employed by one of the defendants, Gilbert UST.

Motion to dissolve an injunction. This was a creditor’s action brought by Harris M. Baldwin, Nathaniel Fisher, and Henry Dix, against Julian G. Tynes, Adolphus D. Smith? and Samuel S. J. Frith, to set aside an assignment for benefit of creditors made by Julian G. Tynes and, Adolphus D. Smith, composing the firm of Tynes & Smith, to the defendant, the assignee, Samuel S. J. Frith.

This action was brought by Max Maretzek, the manager of an opera in the city of New York, against the defendants, William Cauldwell and Horace P. Whitney, publishers, editors, and proprietors of The Sunday Mercury, a weekly paper published in the city, to recover damages for two articles printed therein in October, 1863.

<p>The action was brought to recover the amount of a promissory note purchased by the plaintiffs at a discount of 11 per cent, per annum.</p> <p>The note was signed with the firm name of the defendants, S. H. and C. W. Foster, was drawn by S. H. Foster, one of the firm, for his own use, was not entered on the books of the company, and had nothing to do with the business of the firm. S. H. Foster, after he made the note, sold it to one Furman at 11 per cent, discount, who sold it to the plaintiffs at the same rate.</p> <p>The answer denied that the plaintiffs were bona fide holders of the note, and averred that the note was without consideration and void.</p> <p>The judge before whom the cause was tried ordered a verdict for the plaintiffs, subject to tife opinion of the court on a case to be made.</p>

<p>Attachment against Ships and Vessels.—Sheriff.</p> <p>In proceedings by the attachment of vessels under the act of 1862, the filing of a specification of the debt previous to applying for the writ, is necessary only where the vessel has left port.</p> <p>The omission to specify the names of the owners of the vessel in the application is not a fatal defect.</p> <p>Clerical defects in the application may be amended upon its presentation.</p> <p>If the undertaking offered do not conform to the statute, it may be amended under the-power given by 2 Rev. Stat., 556 ; and when amended will be valid from the time of its execution.</p> <p>A sheriff cannot execute a writ or warrant of attachment out of his own county. Where he did so under a mistake as to the boundary of his county, the property attached was ordered to be released.</p>

The respondent, Mary Ann Yoorhies, had obtained a judgment against the appellant, Milton St. John, as administrator, upon a demand against the estate which he represented. The administrator had contested the claim, and appealed from the judgment against him to the Court of Appeals, where it was affirmed. The plaintiff in the judgment, the present respondent, then applied to the surrogate for leave to issue execution under 2 Rev. Stat., 116.

<p>Appeal from a judgment on a demurrer to an answer.</p> <p>This action was brought by John Donovan against the Mayor, Aldermen, and Commonalty of the city of Hew York, to recover for work, labor, and materials. The contents of the pleadings are stated in the opinion of the court.</p> <p>At special term, judgment was ordered for the plaintiff on his demurrer to the answer of the defendants, and the defendants appealed.</p>

<p>Attachment in Justice’s Court.—Defective Return.—Jurisdiction.—Attachment Bond.</p> <p>A statement in an affidavit that the defendant is justly indebted to the plaintiff on a demand arising upon keeping his horses,—MM, to be a sufficient statement that the demand is one “arising upon contract, express or implied,” within the meaning of the statute (2 Men. Stat., 273 ; 3 ed., 462, § 216), to sustain an attachment. It is sufficient that the affidavit tends to establish such a demand.</p> <p>Under the Non-imprisonment Act, a bond by the plaintiff with one surety is sufficient to warrant the issuing of an attachment.</p> <p>Where the body of the attachment-bond wholly omitted the name of the surety, but the bond was plainly subscribed by him for the purpose of becoming surety, and the justice approved of him as “ the security in the bond,”—Meld, a sufficient signing by the surety to render the bond valid.</p> <p>Where the constable fails to state in his written return the date of the service of the attachment, and to date his return, these data m'ay be supplied from other facts in the proceedings.</p> <p>Where a constable fails to state in his written return that he left a copy of the inventory and attachment with the person in whose possession the property attached was at the time of the service of the attachment, the omission is fatal to any judgment upon such attachment, whether it is questioned on appeal or collaterally, and no other evidence of that fact can be admitted to sustain such judgment.</p> <p>A statement that a copy of the inventory and attachment were “ left with B.’s wife, as B. cannot be found in this county," is a sufficient statement that B. was not personally served.</p>

The plaintiff, George Bowman, recovered judgment against the defendant, William M. Tallman, in February, 1864. The defendant appealed to the general term, and gave the necessary undertaking to secure a stay of proceedings upon the judgment. The appeal was argued at the general term, and on the 28th of May, 1864, the court orally announced its decision, affirming the judgment.

This action was brought by Caleb S. Monroe and another against the Galveston, Houston, and Henderson Railroad Company and others, as defendants, to have assets of the company applied to payment of the plaintiffs judgment against it.

<p>This was an appeal from an order denying the petition of the defendant for leave to put in a supplemental answer in a suit for a limited divorce for alleged cruelty and abandonment.</p> <p>The facts were as follows:</p> <p>After the commencement of the suit, and on the 21st of • March, 1863, upon an application made for alimony pendente lite, the court directed, by its order, that “ the plaintiff must offer to return to the society of the defendant, in case he shall ■ provide a place for her support, within a week from the making of this order; and, in case she does so, the defendant must provide such place and support. If she does not, the.motion must be denied: if she does, and he does not supply such place and support, there must be an order for his allowing $8 a week until the determination of the cause, and $30 counsel-fee.”</p> <p>The plaintiff being quite poor, and having no means of support for herself and her infant child, thereupon offered to the defendant, in writing, to return to his society, on his providing ' a suitable abode and support for her in accordance with the terms of the order. Seventeen days afterwards the defendant notified the plaintiff that he had, in pursuance of the order of the 21st March, and the offer of the plaintiff under said order, provided a suitable place for her abode at No. 1258 Broadway, and also a suitable support for her at said house.</p> <p>The plaintiff, thereupon, caused the proposed residence to be examined; and finding it, in her opinion, unsuitable, declined to reside there, and notified the defendant thereof.</p> <p>The proposed supplemental answer simply averred that, on the 25th of March, 1863, the plaintiff offered to return to the society of the defendant on his providing a suitable place of abode and support for her; that on the 11th of April, 1863, the defendant offered to and did provide a suitable abode and support for her, and offered to receive her back, and that she refused, and still refuses to accept such offer.</p> <p>Leave to interpose this answer was applied for and refused at special term, and the defendant appealed.</p>

<p>Motion to vacate an order of arrest.</p> <p>The facts are stated in the opinion.</p>

Motion to vacate an order of arrest. The defendant, as the attorney of the plaintiff, received, for her, money paid into court for her use in a former action, but refused to pay it over to her, on the ground that the defendant in such former action, who had paid it into court, had some claim thereon. She brought this action to recover the amount; and having obtained an order for his arrest, he now moved to set it aside.

<p>Motion for leave to demur.</p> <p>In this action, and another by another plaintiff against the same defendant, the defendant, after issue of fact joined, moved for leave to withdraw her answer and" put in a demurrer to the complaints.</p>

<p>Pleading.—Answers.</p> <p>Although the Code does not expressly require the defendant, in his answer, to state the relief he demands, he must set forth whether he interposes a mere defence or a counter-claim.</p> <p>An answer, setting up as a defence a failure of consideration, must state whether it is a partial or total failure.</p>

The relator sued out a writ of certiorari, directed to F. W. Loew, Esq., justice of the fifth judicial district in the city of New York, requiring him to send the record of proceedings, had before him on the application of John Powers, for a warrant to dispossess the relator, and one Cutter, of certain premises in the city of New York, with the process, warrant, &c., to the justices of the Supreme Court at the general term thereof, &c. In obedience to this writ, the justice…

<p>Dissolution of Religious Corporations.—Powers of the Supreme Court over their Real Estate. — Mortgagees in Possession.</p> <p>Religious corporations can only be dissolved by the Legislature. The consent of a majority of the corporators, with the direction and order of the Supreme Court, will not effect a dissolution.</p> <p>The power of the Supreme Court over the real estate of a religious corporation is limited to the sale thereof, and does not extend to authorize a gift or surrender of such property.</p> <p>The purchase of a mortgage, on which no default has been made, by a party in the wrongful possession of the mortgaged premises, gives him no right to hold the property as mortgagee in possession.</p>

The action was brought by Thomas G. Walker for money had and received. The complaint set forth that Holbrook, the plaintiff’s assignor, in the year 1854, deposited with the defendants, as security for money borrowed from them, divers bonds and choses in action, which the defendants had disposed of at a price largely exceeding the amount of plaintiff’s indebtedness ; and it asked judgment for such excess, with interest, as for money had and received.

This action was brought on a policy of insurance, which in the written portion insured Nathaniel Hayward against loss or damage by fire, to the amount of five thousand dollars, on the buildings occupied as an India rubber factory, and on property contained therein, situate, &c., viz., $400 on their building, No. 1, on plan filed in the office of the Washington Insurance Company, New York; $1,100 on machinery, tools, steam-engine, and shafting, contained in building No. 1;…

Appeal by plaintiffs from an order made at the Chenango Special Term, in February, 1865, by which a charge of $20, for “ prepared case,” was struck from the plaintiffs’ bill of costs, which had been allowed by the clerk of Otsego County. The action was commenced in a justice’s court and by successive appeals taken to the Súpleme Court, in which last-mentioned court the plaintiffs were beaten and judgment was rendered in favor of the defendants.

The action was upon a bond conditioned to pay $3,800 on the 21st of May, 1865, with interest payable semi-annually, on the 21st days of November and May in each year.

Motion to resettle an order. The defendant, José Valiente, in the above action appealed to the Court of Appeals from an order of the general term reversing a decision of the court below and granting a new trial, and thereupon gave an undertaking, according to § 334 of the Code, in the sum of $250.

Motion to vacate an order to continue a mechanic’s lien. This was a proceeding to foreclose a mechanic’s lien effected upon Ward School Humber Eight, in the city of Hew York, on the 14th day of June, 1864, to which The Mayor, &c., The Board of Education, and other parties having liens, were made parties.

<p>Jurisdiction of City Judge in Summary Proceedings.— Office of the Writ of Prohibition.</p> <p>The city judge of the city of New York has jurisdiction of summary-proceedings to dispossess a tenant from premises in that city.</p> <p>The power to hear and decide proceedings for the summary dispossession of tenants is a judicial power, and as such included in the powers of the recorder conferred upon the city judge of New York by the act creating that office ; and the power to issue summons and warrant in such cases is incident thereto.</p> <p>It is not within the office of the writ of prohibition to correct irregularities in judicial proceedings, but only to restrain the courts from exceeding their jurisdiction ; it should not be issued where there is another and easier remedy.</p> <p>A writ of prohibition, when allowed'by a justice out of court, may be quashed on motion at special term, even if returnable at the general term.</p>

This was a motion by one of the defendants (Taylor) to compel the plaintiff, who had been appointed in this action receiver of the partnership effects of a firm, whereof the parties to this action were members, as such receiver to pay the fees of a referee for taking an account therein underran order of the court. The action was brought by John Perkins against Joseph W. Taylor and others.

Tjie plaintiffs, Dundas T. Pratt and Benjamin Beath, of Philadelphia, brought an action against the defendant, Thomas B. Ohase, upon three promissory notes, two of them dated at Philadelphia in 1854, and the third dated at Buffalo, 1855, all payable in Buffalo. The complaint set out the residence of the plaintiffs in Philadelphia, and of the defendants in the State of ¡New.York.

The action was brought by Amelia J. Parks, an infant, against James W. Parks. An order was made at special term setting aside the summons and complaint, on the ground that the plaintiff, though an infant, prosecuted her action without the appointment of a guardian. The order was to the effect that the proceedings be set aside, unless the plaintiff within twenty days should procure the appointment of a guardian, and pay ten dollars costs of motion.

This action was brought by Rath an Broughton before a justice of the peace, to recover from Ransom Mitchell for an alleged breach of warranty of a horse the defendant sold to the plaintiff for $125. The plaintiff alleged that the defendant warranted the horse sound and right every way, and that he was unsound in his right hind-leg, and was vicious when being shod. The justice rendered a judgment in favor of the' defendant for costs.

Appeal by both parties from a judgment. This action was brought by the plaintiffs, Wjlliám Loeschigk, Otto Wesendonk, Gusta vus Kutter, and Edward Luckemeyer, judgment-creditors of Samuel D. Addison, as survivor of Joseph Addison, against tfie defendants, to set aside as fraudulent and void certain conveyances, assignments, and transfers of property made by Samuel E>. Addison to the defendant Rachel A. Addison, and also to the defendants Hatfield & Marshall.

This was an action brought by William T. Wilkins against William P. Earle and William A. Earle, to recover a sum of money which the plaintiff, when a guest in the defendants’ hotel, had deposited in their safe, and which had been embezzled by their clerk.

<p>Interest on Legacies.</p> <p>Under the provisions of the Revised Statutes, interest on general legacies commences to run from the period of one year from the issue of letters testamentary, not in one year from the death of the testator.</p> <p>It seems, however, if a direction be given in the will for an earlier payment, or a clear inference can be drawn of such an intention on the part of the testator, from the language of the will, then interest commences to run from the time fixed for the payment of the principal; and annuities, or incomes and interest upon sums directed to be invested upon trust to pay over interest or income, commence to run from the death of the testator.</p>

<p>Application for a writ of error to the Court of Sessions of Hew York.</p>

Demurrer to complaint. This action was brought to recover premiums of insurance on a policy issued by the plaintiffs; The contents of the pleadings are stated in the opinion. The demurrer was sustained at special term, and the plaintiffs appealed,

This action was brought by the widow of George H. Howell, to recover on a policy of insurance upon the life of her deceased husband, issued by the defendants. The facts are fully stated in the opinion of the court.

<p>Estoppel.—Waiver of Cause of Action.—Defences.</p> <p>The rule that where the true owner of land tacitly suffers another person to occupy and improve the same without interposing his own claim, he will be barred in equity from claiming the property without compensation for the improvements, does not apply where his acts or silence have not misled such other party.</p> <p>Where the person encroaching knows what he is doing, it is not necessary for the true owner, in order to protect his rights, to give notice to desist.</p> <p>When a cause of action has once accrued, it can only be destroyed by satisfaction or release.</p> <p>Thus, where the defendant owning land, and knowing what was his true boundary, put up a building which encroached upon the adjoining land of the plaintiff;—Held, that the mere passive acquiescence of the plaintiff did not affect the title.</p>

Motion to dissolve an injunction. ‘ The complaint of the plaintiff, Francis B. Carpenter, set up the following facts: that he was the administrator of Lloyd Glover, who had during his lifetime formed with the defendant, George H. Danforth and others, the “National Bank Note Company that the plaintiff’s decedent and Glover had both been active trustees in the management of the company; that the company had declared no dividends, applying all its profits to the enlargement of…

Demurrer to complaint. The complaint showed, 1st. That on the 16th day of April, 1864, the defendants agreed to sell to the plaintiffs a certain farm in South Dover, Dutchess County, N. Y., “ adjoining the New York and Harlem Railroad, free from all encumbrances except as to a mortgage,” &c. That on examining title, plaintiffs found recorded “a covenant and agreement made by Robert L. Reade (a former owner of said premises) with the New York and Harlem Railroad Company,…

David Ryan was convicted in the Court of General Sessions of larceny from the person of one John Jourdan, who was the principal witness for the People, and who was shown to have been “ under the influence of liquor quite noticeably,” at the time of the larceny. Two witnesses testified to the good character of the accused. The recorder charged, among other things, as follows : “ The only evidence” (for the accused) “ is evidence of good character.

This action was brought by John W. Porter against Henry G. Bronson; upon a judgment which one Charles Quinlan had recovered against Bronson, in an action formerly brought by him in the Marine Court of the city of New York.

<p>Injunction.—Equitable Protection of Business Secrets.</p> <p>The courts will not, by injunction, restrain a party from the violation of a contract in which the parties have fixed and liquidated the damages for such violation.</p> <p>It does not alter the case that the parties defendant are insolvent.</p>

Order for the examination of the defendant, at the instance of the plaintiff, before trial. This action was brought by William H. McVickar against the various persons, members of the firm of Morris Ketchum, Son & Co., and their assignees, and Augustus W. Greenleaf and others. E. B. Ketchum, one of the defendants, was in prison upon charges of forgery, but had not yet been put upon his trial.

Petition to vacate an assessment. James W. Beekman, the owner of one hundred and five lots, assessed for regulating and grading First Avenue from 37th to 91st streets, petitioned to have such assessment vacated under the act of April 17, 1858, upon the ground of various frauds and irregularities.

This action was similar to that of Sands a. Harvey, above reported (Ante, 248), and was also commenced after the act of 1862. It came before the general term of the Fourth district, upon an appeal from a similar order of. reference.

The action was brought against William J. Bell, Robert Courtney, and Samuel A. Hill, to recover from them $8,200, alleged to be due tp the plaintiff from them, for stock sold by them as his brokers. The answer of the defendants admitted that there was 'a balance of $5,528.70 due from them, upon the transactions stated in the complaint. -For the third and fourth defences it alleged, “ 3.

Geer, against the plaintiff; and also for leave to make Elias S. Young and James A. Ruthven parties defendants to the action.

Habeas Corpus. The relator having been committed to jail for disorderly conduct until she should give security to keep the peace, procured a writ of habeas corpus to test the question if such a commitment was valid. Mr. Barnaby, in support of the writ, insisted that the commitment was for an indefinite period, and in analogy with the rulings of the courts on other indefinite commitments was void.

The action was brought by James 0. Willet, late sheriff of the city and county of Yew York, against Theodore Galliardet, John D’Homergue, and Charles Lassalle; upon an undertaking given by the defendants, on the arrest, in a former action, of the defendant Galliardet.

<p>Certiorari to review proceedings in insolvency.</p>

The action was brought upon an undertaking of bail, given by the defendants Thomas Stacy and Anastasios Nicholas, upon the arrest of one Edwin R. L’Amoureux, upon an order of arrest granted in a civil action against him under the Code of Procedure. The undertaking was in the usual form.

This was an action for work and labor, and legal services rendered by the plaintiff as counsel for defendant, claiming two thousand dollars. On demand by defendant, a hill of particulars was put in by plaintiff, containing five distinct items of charges on the debit ■side, and one item on the credit side. The defendant pleaded a general denial, and also set out a special defence.

Appeal by the plaintiffs, from an order denying their motion that the defendant be required to amend his answer.

This action was brought by James L. Cheeseman against James. H. Sturges and others. The facts material to this appeal are fully stated in the opinion of the court.

This action, which was brought by Anthony Simmons, as executor of the will of Elisha Eldridge, against Clinton Eldridge, and Henry and Betsey Moyer, was referred to a referee, who upon the opening of the trial, before any evidence had been adduced, dismissed the cause upon the ground that there was no cause for action. From the judgment entered thereon, the plaintiff appealed.

<p>Creditor’s Action.—Proof of Eeturn of Execution.—Existence OF LEVIABLE ASSETS.-ElGHT OF DOWER.</p> <p>la a creditor’s suit, the previous issue and return of execution, when requisite, is sufficiently proved by producing the execution with the sheriff’s return and the date of filing indorsed thereon, and testimony of a witness that he had seen it on file in the clerk’s office.</p> <p>Showing that there was some personal property which might have been seized, does not affect the plaintiff’s right to maintain the action, unless it be also shown that he knew of its existence, and omitted to levy.</p> <p>Where the wife of a debtor joins with him in the execution of a fraudulent conveyance of his real property to a third person, who reconveys to her, and the conveyances are set aside at the suit of a creditor, she is not .entitled to have her dower reserved to her by the judgment.</p>

This action was brought by John Purchase against George F. Bellows, to recover the possession of certain personal property alleged to be wrongfully detained, with damages for its detention. Judgment was rendered in favor of the defendant for the costs of the action. After an execution upon this judgment, issued against the property of the plaintiff, had been returned unsatisfied, the defendant issued an execution against plaintiff’s pei’son.

' - Appeal from an order vacating an order requiring security for costs. i ,, The plaintiff in this action was an infant, appearing by John Grantman, his guardian ad litem, appointed under the provisions of the Code of Procedure.

■ Appeal from an order amending a verdict. The action was tried before one of the justices of the court and a jury. At the close of the evidence the presiding justice directed such jury to.bring in a general verdict; and also to answer in writing certain written questions presented to them by him, affirmatively or negatively, according to their opinion, as to how they should be answered from the evidence. The jury rendered a .general verdict in favor of the plaintiff.

The plaintiff, in this action, Edward Lupton, issued an attachment against the property of the defendants, James C. Jewett and others, and the same having been levied, the defendants applied to the justice issuing the attachment, upon affidavit that the value of the property was less than the amount claimed by the plaintiff, for the appointment of an appraiser, in order that they might have the attachment discharged on giving security in its stead.

■ Appeal from an order. The plaintiff appealed from a judgment of a justice of the peace in summary proceedings to recover the possession of land, under chapter 193 of the Laws of 1849. The appeal was transmitted to this court by the County Court of Wayne, the county judge having acted as counsel in the proceeding before the justice, and being for that reason incompetent to hear the appeal.

Appeal by the defendants from a judgment on a verdict recovered by the plaintiffs. The action was brought by George Hoffman and William Place to recover on a policy of fire insurance issued by the defendants. The policy was issued in February, 1861, to the firm of Hoffman, Place & Co., a partnership then existing, composed of the plaintiffs and one Silvernail.

Motion to vacate order of arrest. This action was brought by James Hazlett and another against James Gill, to recover damages for an alleged false and fraudulent representation, made by the defendant, respecting the pecuniary responsibility of the firm of Gill & Co. The defendant was not a member of the firm.

The plaintiff sued the defendant, one of the proprietors of a newspaper, for compensation for services as a reporter or otherwise. At the trial, before Mr. Justice Leonard, the defendant’s counsel moved for a nonsuit, on the ground 5that the plaintiff had not joined the other owners. This the court overruled, on the ground that no such defence had been set up in the defendant’s answer. .

Justice Bakboub, on the 31st of October, 1863. The plaintiffs were judgment creditors of the defendants, Demarest & Middleton.

In this action, an order had been made directing a commit mitment for disobedience of an injunction, and from this order the defendant appealed. The appeal was placed on the non-enumerated calendar for the February term, and a notice of motion to dismiss the appeal and also of argument was served by the respondent’s attorney for that term, but no notice was served by him for the present term. When the case was called for argument at the present term,

Exceptions taken at the trial of the cause, and directed- by the court to be heard in the first instance at general term.

<p>Appeal.—Motion.</p> <p>When the parties to an action have settled the judgment, and the plaintiff has-acknowledged satisfaction, the court will not hear an appeal which had been previously taken, merely because the plaintiff’s attorney desires judgment on the appeal for the protection of his right to costs. If the settlement of the judgment is a fraud on his rights, his remedy is by motion.</p>

Justice Monoribf and a jury, on the 12th of May, 1862. The action was brought by Bath aniel A. Cowdrey against Jacob Carpenter. The facts were as follows : In August, 1860, the defendant sold to the plaintiff a bond and mortgage of $2,000. The mortgage Covered two lots of land' in this city. It was made by one Coit to E. H. Hawke, the defendant’s assignor. There was a prior mortgage of $5,000 covering.the two lots, and also other property adjoining.

The allegations of the complaint in this action, which was brought by Benjamin M. Stilwell and Shubael E. Swain, were as follows : On the 24th day of December, 1860, Bathan C. Platt was duly removed from the office of city chamberlain, and on the same day Daniel Devlin was duly appointed to that office, and being qualified, he entered upon the discharge of the duties of the office, and selected the Broadway Bank as the depository of all moneys belonging to the city and…

This was an appeal from an order denying a motion for a discovery. The plaintiffs, Louis Ansen and others, brought, this action upon an alleged breach of a contract by the defendant, Philip H. Tuska, to purchase, b-y sample, a quantity of merchandise, which the defendant had refused on a tender of it to accept, on the ground. that it did not correspond with the sample.

Writs of habeas corpus were issued at the instance of Helena Miller and eleven other persons, imprisoned upon Blackwell’s ■ Island, upon commitments for disorderly conduct in the city of New York.

<p>Appeal from an order.</p> <p>In this action, the plaintiff sought to set aside a conveyance of forty-five lots of land in the city of ¡New York, which he had made to James J. Ring, deceased, of whose estate the defendant, Zebedee Ring, was the administrator, and which was intended as a compensation for the intestate’s services and disbursements as attorney and counsel and otherwise, during a period of thirteen years.</p> <p>The plaintiff obtained a judgment of this court, upon a trial before Mr. Justice Hoffman, requiring defendant to reconvey to the plaintiff the land in question : from which judgment the defendant appealed ; and pending the appeal he executed the deed required by the judgment, and deposited the same with the clerk of the court, to abide the event, of the appeal. The parties then entered into a stipulation,'in which, after reciting the existence of such judgment, conveyance, and appeal, and the fact that there were taxes and assessments unpaid, and that other taxes and assessments might become a lien before the conclusion of the controversy, they agreed “ that if the said James Mason shall have paid, or pay and discharge, or cause to be paid and discharged, any taxes and assessments, liens which have, at any time since the said judgment, been, or now are, or hereafter, before the termination of the controversy as aforesaid, may in any way exist or encumber the said lands, or any part thereof, that the moneys so paid, with the interest upon them, shall, in case the said Mason shall not ultimately prevail, be and become a lien, in the nature of a mortgage, in his favor upon the said lands; and that the said Zebedee Eing, his executors, administrators, and assigns, shall, in that event, pay the said Mason the amount of taxes and assessments thereon so paid, with the interest thereon. -</p> <p>“And that the said' Zebedee Eing, his hems or representatives, shall not be entitled to receive back from the clerk of this court the said deed, and the same shall not be returned to him upon any judgment in his favor in the said action, or upon such appeals, imtil he or they shall have paid or reimbursed to the plaintiff, or his legal representatives, any sum or sums of money paid by him or them for any liens for taxes or assessments which existed upon the said lands at the time of the original judgment recovered before Justice Hoffman, or at any time thereafter, prior to the decision of such appeals, together with the interest thereon.”</p> <p>Upon the appeal to the Court of Appeals, that court set aside the .conveyance, but held that the defendant was entitled to recover compensation for the intestate’s services: they opened the judgment appealed from for the purpose of having the value of the services, other than professional, ascertained and allowed to the defendant; and "for this purpose directed the court below to proceed by reference or otherwise, and declared that the land in question should stand as security for the payment of such sum as might be found due by the plaintiff to the estate of the intestate. The remittitur contained some further provisions, which are hereinafter stated in the opinion of this court.</p> <p>On the 29th of November, 1861, the plaintiff applied to this court upon the remittitur and affidavits, and obtained an order referring it to Henry Nicoll, Esq., to inquire and report on such claim. Some proceedings incidental to the reference are reported, 10 JSosw., 598.</p> <p>The plaintiff moved at special term in March, 1863, for an order that the deed of the lands be delivered to the plaintiff, on his giving a mortgage thereon to the defendant for such sums of money as might ultimately be adjudged due to him, with leave to sell from time to time, on substituting the proceeds of sales for the part sold ; or that a part of the lots might be released from any lien in favor of the defendant, or that the plaintiff might have leave to sell or mortgage a part of the lots. This motion was made on affidavits alleging that delays in the prosecution of the reference to ascertain the defendant’s claim had been caused by the defendant, and that meanwhile the plaintiff had paid upwards of $17,000 taxes and assessments on the 45 lots, and that the value of all the lots was upwards of $150,000 ; and that if nine of the least valuable were sold they would probably produce upwards of $21,000, sufficient to repay the assessments in question.</p> <p>The defendant opposed this motion, upon an affidavit explaining the delays upon the reference, and alleging that several of the lots would have to be taken for opening new streets, and that what would remain would be very heavily assessed for improvements; and that the lots remaining, if enough were sold to repay the assessments already paid, would not much exceed in value the amount of the defendant’s claim, if substantiated, and that the security now- held by the defendants ought not to be diminished.</p> <p>The motion was granted, the following opinion being rendered.</p> <p>Robertson, J.</p> <p>By the judgment of this court, which in that respect is not altered by the judgment of the Court of Appeals, the conveyance to the defendant’s intestate, which was in question, has become, irremediably, a mere security for the amount due from the plaintiff,—in fact," a mortgage,—while the plaintiff is owner of the fee.</p> <p>The instrument under seal, executed by the defendant while the appeal was pending, although in form a contract, the rights arising under which in other respects may not. be interfered with in this action, is a stipulation in the action, so far as the retention by the clerk of the court of the deed executed by the defendant, for the security of advances by the plaintiff for taxes and assessments, is concerned. That instrument evidently contemplated the determination of the controversy by the decision in the court of last" resort, either by the reversal or affirmance of the decision in this court; in the former case making the advances to be on account of property of the defendant, and in the latter, of the plaintiff. The defendant cannot deprive the plaintiff of the benefit of the deed in the clerk’s hands, as security for such advances; and as the property now belongs to the plaintiff, the payments have turned out to be on his own account.</p> <p>Whether the Court of Appeals had this agreement under seal before them when making the order in the remittitur, is immaterial: they did give this court power to modify the security. They, probably, having overthrown the deed as a conveyance from client to counsel, intended that the latter should only have so much security as would protect his claim, and left it to the court to regulate it.</p> <p>The plaintiff has strengthened the defendant’s security, as well as protected his own interest, by the payment of taxes and assessments on the whole property. If it does not impair that-security, he ought to have at least as much of the land conveyed to him as would enable him to reimburse himself for the outlay. The valuation of the lots on Fifty-fifth street, between Madison and Fourth avenues, seem sufficient for that purpose. The estimate of the rest of the property, given by an expert, who is not contradicted by any one shown to have any knowledge of the value of real estate in the neighborhood, is shown to be $122,000, exclusive of the land taken for Madison Avenue. The plaintiff has a judgment in this case for nearly $20,000, on which interest is due from its rendition, in November, 1858, amounting at present to nearly $25,000. This judgment was for money had and received for the plaintiff’s use. The defendant’s claim, as sworn to, is about $75,000, principally for work and labor, and some expenditure of money, the details of which are not given; and there is no evidence that any account was ever rendered. Interest, therefore, is probably not allowable on it (Rensselaer Glass Factory a. Reid, 5 Cow., 587; Robinson a. Stewart, 10 N. Y., 189); but if allowed for the same time as the plaintiff’s claim on the judgment, the amount would swell to $97,000, and deducting the sum of $25,000 due to the plaintiff, the balance due the defendant would be $72,000. It would, therefore, be reasonable to give the defendant the benefit of as much of the land as would be security for $75,000, the largest amount which he would recover.</p> <p>The plaintiff has never bound himself to pay any taxes and assessments, and each party, without the agreement before mentioned, would have been obliged to protect his own interest by keeping down taxes and assessments. Still, it is possible that such encumbrances may arise before the determination of the controversy in this case; and as the plaintiff now is in the position of a mere mortgagor applying to redeem, enough property should be included in the mortgage to secure the defendant for any possible payments he may be obliged to make for taxes or assessments, unless the plaintiff can protect him by a separate bond of indemnity with good sureties against them.</p> <p>In- order to ascertain how much the probable amount of taxes and assessments may be, and what part of this land may be left in the hands of the defendant, as security therefor, and for the payment of $75,000, in case he recover the same and interest, there must be a reference to the same referee, before whom the proceedings for an account are pending, to determine what portion of the premises in controversy are sufficient for the purpose. The plaintiff may have forthwith a release of the property on Fifty-fifth street, if he desire that as part of the property to be released to him, and the reference can proceed as to the residue. Upon the confirmation of the referee’s report, the defendant must release to the plaintiff the property not reported to be necessary for his own security, or the deed in the clerk’s hands can be delivered to the plaintiff, who shall thereupon execute and deliver to the defendant a mortgage to him upon the land so reported to be a proper security, conditioned to pay the amount to be found due, on the accounting, and also á release of the covenant under seal contained in the agreement already referred to.</p> <p>The order made herein to be settled on two days’ notice, and amendments to be served one day before.</p> <p>Pursuant to this decision, an order was entered, directing the clerk to deliver the defendant’s deed to the plaintiff, upon the plaintiff’s delivering in return therefor a mortgage on thirty-six of the lots conditioned for the payment of whatever sums should ultimately be found due to the defendant in the action, and on the plaintiff at the same time delivering a release of the covenants contained in the stipulation above referred to, and further providing that it be referred to the same referee. who was proceeding with the investigation of the defendant’s claim, “ to inquire and report how many of the said thirty-six lots of land, if any, will be necessary or required to give the defendant sufficient security for the .payment of the amount likely to be awarded to the defendant on the final judgment in this action .... and also any probable amount of taxes and assessments likely to accrue on such portion, if any, of the said thirty-six lots so required, before the termination of this action; and that on the coming in and confirmation of the report of the referee on the inquiry hereby directed, the said defendant shall execute and deliver to the plaintiff a release, from the said mortgage, of all of the said thirty-six lots of land, as shall not be reported as necessary or required to give the defendant sufficient security.”</p> <p>From this order the defendant now appealed.</p>

<p>Habeas corpus, to inquire into the detention of John Williamson, who was imprisoned in the House of Refuge.</p>

This was an appeal from an order of the special term denying a motion for a new trial, and from a judgment entered on a verdict in favor of the plaintiff for $13,173.52. The action was brought against the defendant, the sheriff of the county of New York, to recover damages for the taking and conversion, in April, 1858, of chattels alleged to belong to the plaintiff, a corporation' created by the laws of the State of Connecticut.

This action was by Jeremiah Gr. Hamilton against Wentworth S. Butler, to recover $550 ; and the defendant in his answer claimed $1,000 against the plaintiff. The case was tried three times. On the first trial, after the evidence was all in, the justice discharged the jury on account of some misconduct on the part of one of the jurymen, and put the case off for the term. On the second -trial at the next term the jury failed to agree, and were discharged.

<p>Trial by the court.</p> <p>The complaint in this case set out the sale and delivery, on the 12th August, 1865, by the plaintiffs, of twenty thousand dollars in gold to the defendant, Peter R. Mumford, for $28,200, payable on the delivery of the gold ; the receipt of the check for that amount, its presentment, and the refusal of the bank to pay it for want of funds; that Mumford was guilty of a fraud in the purchase of the gold, knowing well that he had no funds in the Mechanics’ Bank to meet his checkthat Mumford had sent to. the defendant, John Oakey, certified checks on the Tradesmen’s Bank to the amount of about $53,000, with the request that Oakey would hold, the same for his, Mumford’s, benefit; that Oakey drew the checks from the Tradesmen’s Bank and deposited the amount to his own credit in the Nassau National Bank, another of the defendants in this action, drew his checks therefor, and had the same certified by the Nassau National Bank, but had not parted with the checks, and that the money was still in the bank, and the checks with Oakey; that the plaintiffs commenced an action against Mumford on the 19th of August, 1865, for the recovery of the check of $28,200,.and on the same day issued an attachment, and had it levied on the property of Mumford in the Nassau National Bank, the $53,000 nominally to the credit .of Oakey being really held for the use of Mumford ; the recovery of judgment in that action; and that it was Mumford’s intention that the certified check should be delivered by Oakey to him, or used for his benefit.</p> <p>That the defendant, Albert Speyer, claimed this money by virtue of an assignment made by Mumford to him, August 19, 1865; but that the attachment above mentioned was levied by the sheriff on the money before the execution and delivery of the assignment; that the deposit of the money and drawing of checks as above, stated was a contrivance of Mumford’s and Oakey’s to secure the money from the creditors of Mumford, and to prevent or defeat the levy of an attachment or execution thereon.</p> <p>That it was pretended by Mumford, Oakey, and the Nassau National Bank, that the money belongs to Oakey, and is not subject to the claims of Mumford’s creditors.</p> <p>The plaintiffs then demanded judgment, that the said money be decided to be Mumford’s money at the time of issuing and levying the said attachment, and for other relief.</p> <p>The different defendants answered in various ways, all, however, substantially denying that the property was levied upon under the attachment.</p> <p>Under motions and orders of the court, the sum in dispute was paid into court by Oakey, except $3,000, which Oakey claimed to reserve in payment of a debt due to himself.</p> <p>On the trial, a motion was made' to dismiss the complaint as not showing facts sufficient to constitute a cause of action, which was denied. Proof was then given of the judgment in the other case, and that the attachment was duly issued and was served on the Nassau National Bank, between 12 and 1 o’clock on Saturday, the 19th of August, and on Oakey at a few minutes past 3 p.m. John Oakey in his testimony admitted that, he received the money for Mumford, it being intended to hold the same so as to make an arrangement with the creditors. It was also shown that the assignment to Speyer was delivered on the 19th of August, about 2.45 p.m., a short time before the attachment was served on Oakey, though after the attachment was served on the bank. This assignment was for the benefit of creditors.</p>