Volume 19 — Bosworth's New York Superior Court Reports

This action was brought against the defendant as surety for the payment of rent reserved in a lease, for the term of three years, given by the plaintiff to one Meadore. The plaintiff claimed to recover for rent which, according to the terms of the lease, was payable on the 1st day of August of the last year of the term for the quarter ending on that day, i. e., from the 1st of May to the 1st of August.

This is an appeal by Elisha W. Hinman the defendant, from a judgment in favor of George Cassard the plaintiff, entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, on the 10th day of February, 1859.

This action was brought by the plaintiff, as administrator of the goods, chattels, &c., of one Charles D. Bibelga, to recover damages, (by virtue of the statute authorizing the administrator, in such case, to maintain an action,) by reason of an injury received by the intestate, when walking along the Eighth avenue, in the city of New York, from falling off an embankment, which injury caused his immediate death.

This is an appeal from an order, made at Special Term, before Duer, J., February 28, 1857, sustaining the defendant’s demurrer to the complaint, and ordering judgment unless the plaintiff amend, &c. The complaint sets forth the making and delivery of a policy by the defendants, whereby they insured and agreed with the plaintiff that they “ would pay and make good to him any loss or damage which he might sustain by fire, (within one year from the date thereof,) of any of his…

Motioh for judgment upon a verdict taken by consent, subject to the opinion of the Court at General Term, with leave to enter judgment of nonsuit or dismissal of complaint, if so advised. The cause was tried before Chief Justice Boswoeth and a jury, on the 23d day of April, 1858.

This action came on for hearing by the defendant’s appeal from the judgment for the plaintiffs, for $1,622.49, damages and costs, entered on the decision of Timothy D. Pelton, Esq., Referee, before whom it was tried on the 3d day of May, 1858. The action was brought upon a promissory note made by the defendant and indorsed to the plaintiffs.

This action was tried before Jesse C. Smith, Esq., as Referee, on the 28th day of January, 1859. It was brought to recover the possession of a chronometer, with damages for the alleged illegal detention thereof.

Justice Slosson, on the 20th of June, 1859. The action is brought to recover the sum of $946, as the value of certain chairs alleged to have been sold and delivered by the plaintiffs to the defendant, in June, 1857, to be paid for in the notes of John A: Machado & Company, having not more than six months to run; which notes the plaintiffs have demanded of the defendant, and he refused to deliver the same.

Appeal by the defendant from a judgment for $1,182 damages and costs, entered on a verdict for the plaintiff, rendered on a trial before Mr. Justice Pierrepoht, on the 29th day of June, 1859. The action is brought upon a check for $1,000, drawn by the defendant, payable to the order of F. C. Houghton and by him indorsed in blank. The answer of the defendant professed or attempted to set up two defenses.

This case came before the Court to be heard, upon exceptions taken on the trial thereof, before Mr. Justice Pierrepont and a jury, on the 10th day of March, 1859. Upon which trial the complaint was dismissed. The plaintiffs excepted, and the Judge ordered the exceptions to be heard in the first instance at General Term, and the judgment to be in the meantime suspended.

This is an appeal by the defendant from a judgment for $2,886.49 damages and costs, entered in the plaintiff’s favor, on the decision of John Crosby, Esq., Referee, before whom the action was tried.

This action is brought for the redemption of certain two houses and lots from an alleged mortgage. Held: which he promised to' do. That the said Lynch has - never executed such acknowledgment, but claims to hold the houses and lots absolutely as his own property as purchaser. .......

This action was brought against the defendant, Patón, as maker, and Carpenter & Jaques as indorsers of a promissory note, for $1,000, payable four months after date.

This case was brought to hearing' upon exceptions taken by the defendant, Joseph Bocheleau, on a trial had before Oakley, Oh. J., on the 24th day of May, 1853, on which trial the plaintiff recovered a verdict for $200, the exceptions having been ordered to be heard in the first instance at the General Term.

Justice Woodruff and a jury, on the 15th day of November, 1858.

Appeal by the defendant from a judgment entered on the verdict of a jury rendered on a trial had before Mr. Justice Woodruff, on the 27th of January, 1859. The plaintiffs sue as second indorsees of a note made by defendant, dated August 14, 1855, for $1,000, payable to the International Insurance Company or order, at the Bank of Commerce in New York, twelve months after its date.

This is an appeal by the defendant from a judgment entered on the report of Stephen P. Nash, Esq., as Referee. The action is brought to recover damages for the wrongful taking and conversion by the defendant on or about the 18th of April, 1856, of a piano forte, then in the lawful possession of one Herman Schlarbaum, of the value of $325.

Appeal by the defendant from a judgment entered on a verdict rendered on a trial had before Mr. Justice Woodruff, without a jury, on the 3d of October, 1859. The defendant is sued as payee and first indorser of a note for $524.63, dated January 1, 1854, made by P. J. Thomas, payable to defendant’s order, six months after date, at the Seventh Ward Bank.

This is an appeal by the plaintiffs from a judgment entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, in May, 1859; and also from an order refusing a new trial. The defendant is sued as the maker of a note for $1,980, dated July 5, 1854, payable to the order of Thompson, Stillman & Company, sixty days after its date.

This is an appeal by the defendant from a judgment entered against him on the report of Benjamin D. Silliman, Esq., as Referee. The action was commenced on the 17th of March, 1857.

These actions come before the Court on questions of law arising at the trial, and there directed to be heard at the General Term, in the first instance. The suit of Burr v. Wilcox was commenced on the 23d of June, 1858, and was tried on the 25th of June, 1859, before Mr. Justice Pierrepont and a jury. It was originally commenced against Elisha C. Wilcox, to recover of him as a stockholder in the Hudson River Stone Dressing Company, $1,000, and interest from June 23d, 1858.

This is an appeal by the defendant from a judgment against him, and from an order denying a motion for a new trial.

Justice Slosson and a jury, on the 8th day of December, 1858. The plaintiffs are assignees of a claim against the defendants, upon a policy of insurance issued by the defendants to one Elisha B. Morrell, whereby they insured his goods in a certain building owned by him in Brooklyn; the amount insured by the defendants was $1,000, and there was other 'insurance ón the goods to the amount of $2,000.

<p>Ah appeal by the defendants from a judgment, and from an order denying a motion made by them for a new trial. The action was tried before Mr. Justice Pierrepoht and a jury, on the 27th of June, 1859.</p> <p>The complaint states, that the defendants are a - Company incorporated1 and established as common carriers; that as such, they received on the 6th of July, 1857, at Boston, a box of goods the property of the plaintiff of the value óf $91.59, to be carried from Boston and delivered to the plaintiff at ¡Eew York; a failure to deliver the goods and prays judgment for such value with'interest.</p> <p>The answer, first., admits that the defendants. are an incorporated Company, but denies that-they are" common carriers; second, it admits that on the 6th of July, 1857, they received at Boston a box or package of the plaintiff, to be carried by them as an Express Company and not otherwise, and to be delivered to the plaintiff at Eew York, and denies any knowledge of the contents of the box, or of its value; third, it alleges the carrying and safe delivery of the said box, and denies all other allegations of the complaint.</p> <p>The plaintiff gave evidence of the delivery of a box with such contents as the complaint specifies, to Pratt & Curtis, express-men at Chelsea, near Boston, to be delivered by them to the de fendants, to be carried by the latter and delivered to the plaintiff at 181 Broadway, Eew York, and that they “do business as common carriers with all that call.”</p> <p>F. Haslam, testified, that “they were to carry the package to Edward Haslam, the plaintiff, at 181 Broadway.” * * “ The box was to be delivered at 181. Broadway. Eothing was said about the charge for carrying the box. Ten years ago I did business with the defendants. ' I have done no business with them since the box was lost.” The plaintiff" then rested; and the defendants moved to dismiss the complaint, which motion was denied, and they excepted.</p> <p>The defendants then called Harvey Marsh, a driver of one of their wagons, and gave evidence tending to show, "that, in July, 1857, he took a box for the plaintiff and left it inside of the door at the foot of the stairs on the ground floor, and then went to the plaintiff’s place of business in the 4th story, -and the plaintiff not being in, told a boy he found there, “1 have got a box at the foot of the stairs by Express,” and that he must take care of it. That he then went down, saw the box standing where he had placed it, and then drove off.</p> <p>Alonzo Lockwood, a driver of a wagon for the defendants, testified, that he went to the plaintiff the same day, to get a receipt for the delivery of the box, and the plaintiff said he had not received any. He was asked this question: “What is the usual custom of Express Companies, in delivering packages in this city?” On objection the question was excluded, and the defendants excepted.</p> <p>John JBoey, the manager of the defendants’ freight department was asked, and without objection answered these questions. “Are you acquainted with the customary mode of delivering boxes of this size, when the place of delivery is not on the first floor? A. I am. Q. Is there a general custom in respect to the delivery of packages? A. There is. It is our invariable custom to leave packages of this size down stairs.”</p> <p>JErastus Littlefield, of Kinsley & Company’s Express, testified, “ I know that there is a custom in this city among Express Companies as to delivering boxes, &c. When the box is bulky or weighty, it is the custom to leave them down stairs, and notify the parties. In such case, we never take them up stairs.”</p> <p>The plaintiff then testified, that neither the defendants, nor Kinsley & Company’s Express had ever left any thing for him down stairs, that the boy alluded to was an office boy, about 14 years old, and had no authority to receive packages; that he never heard of a custom to deliver boxes by leaving them down stairs; that the defendants never claimed “ that any such custom as this, as regards delivery to him, existed.” That he had always received boxes of the size mentioned, up stairs at his room.</p> <p>Alfred Gr. Badger, testified, that he occupied the same room with the plaintiff, that he received packages almost daily from the defendants. “ They ordinarily deliver them in my room. They always so deliver them. All packages to the plaintiff were usually delivered in the room.” No other witnesses were examined.</p> <p>When the testimony was closed, the defendants’ counsel renewed the motion to dismiss the complaint, which motion was denied, and the defendants thereupon duly excepted.</p> <p>The counsel for the defendants then requested the Judge to charge the jury —</p> <p>That if they should find from the evidence that the defendants had delivered the box to the plaintiff in the usual and customary mode practised by expressmen in the city of New York, that their verdict should be-for the defendants.</p> <p>The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had delivered the box in the mode sanctioned by previous transactions of similar character with the plaintiff, that their verdict should be for the defendants.</p> <p>The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had caused the box to be deposited in a secure place within the building, where the plaintiff kept his office, and had caused immediate notice thereof to be given to the person in charge of the plaintiff’s office during business hours, and while he was absent, and that person’s conduct led the defendants to believe that he was satisfied with such delivery, and would attend to the box, that their verdict should be for the defendants.</p> <p>The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the person in charge of the plaintiff’s office had not used diligence in taking charge of the box after notice, and that but for such neglect the loss would not have occurred, that their verdict should be for the defendants.</p> <p>The Judge declined to charge in the language of the requests, but charged the jury as follows, to which exception was duly taken by defendants:</p> <p>That the important question in the case was, whether the Company had made a legal delivery of the goods. That depositing a light package at the street-door of the building, in the upper part of which the plaintiff’s office was situated, was not an actual delivery to the plaintiff. But, that if the jury were satisfied from the evidence that the plaintiff personally, or by his lawful agent, acquiesced in such mode of delivery, or ever gave the defendants to understand by a customary course of business or otherwise, that he would consider such mode of deposit a delivery, then the defendants were- not liable.</p> <p>That if the boy had authority from the plaintiff to act as his agent in this matter, and as such agent accepted the delivery as made, or being the plaintiff’s agent, so acted as to induce the defendants to believe that he accepted the goods at the place where they were left, then sufficient delivery was made out, and the defendants were not liable. But that a deposit of a light package on the pavement of the street was not of itself a delivery in a case like this, unless in some manner induced or accepted by the plaintiff or his agent; and that if the jury did not find from the evidence that any delivery had been made or accepted as above mentioned, then the defendants were liable.</p> <p>The defendants’ counsel thereupon excepted to the whole of such charge, so far as the same was not in accordance with the defendants’ request to charge.</p> <p>The jury found a verdict for the plaintiff for $104.41.</p> <p>The defendants moved for a new trial on a case, and the motion was denied. From the order denying it, and from the judgment entered on the verdict, the present appeal is taken.</p>

Justice Hoffman. The action was brought to compel the specific performance of a contract for the sale of real estate, upon which now stands the defendants’ church edifice on Canal and Green streets, in the city of Mew York, at or near the northwest corner of those streets. The complaint alleged that the defendants are a religious corporation, duly incorporated under the statutes for the incorporation of religious societies.

Appeal by the defendants from an order denying a motion made by them for a new trial. The action was tried before Mr. Justice Pierrepont and a jury, on the 8th of June, 1859. The defendants insured the plaintiffs on one-third of their interest in a cargo of coffee from Rio de Janeiro to Charleston, in the barque Susan. The ship sailed from Rio October 10th, 1855, and shortly after leaving port met with stress of weather, sprung a leak, and put back to Rio.

This case was brought to a hearing upon exceptions taken by the defendant on the trial thereof before Mr. Justice Slosson, on the 22d day of June, 1859, which exceptions were ordered to be heard in the first instance at the General Term, the judgment to be in the meantime suspended.

This is an appeal by the defendant from, a judgment entered on the report of John M. Eager, as Referee. The complaint, verified February 7th, 1857, states that about February 11, 1852, Henry 0. Bowers, Ralph L. Howell, and John J. Tallmadge, owned the Western Lake-Boat Line of Canal Boats, and the Oswego and Western Line of Canal Boats, and composed the firms of Bowers, Tallmadge & Company, and R. L. Howell & Company.

This case came before the Court to be heard on exceptions taken by the plaintiffs on the trial thereof, before Mr. Justice Slosson and a jury on the 12th day of May, 1859, on which trial the jury rendered a verdict for the plaintiffs for $4,877.48 against the defendants, John S. Birch, William G. Hutting and Lucius B. Hutting, (who composed the firm of John S. Birch & Co.,) and against the plaintiffs in favor of the defendants, Tilt, Thorp and Hewman.

Appeal by the defendant from a judgment against him for $18,397.85, damages and costs, and that he deliver and assign to the plaintiffs certain policies of insurance and documents relating thereto, which was rendered on the decision of William Kent, Esq., Referee, before whom the action was tried.

P. Cowles, Esq., to whom the cause was, by consent of parties, referred, to hear and determine. The action was brought by Mortimer Livingston, as Receiver of the General Mutual Insurance Company, to recover from the defendants the amount of their promissory note, dated January 5th, 1854, for $1,368.09, payable seven months after date to their own order, and indorsed to the said Company.

This is an appeal by the plaintiffs from a judgment for the defendant, entered upon the report of Livingston Livingston, Esq., to whom the action was, by consent, referred, and before whom it was tried on the 29th day of December, 1858. The action was brought to recover the price of 3,426§£ bushels of rye sold to the defendant on the 27th day of August, 1858, at seventy-five cents per bushel.

This is an appeal by the plaintiff, and also by some of the defendants, from a judgment entered November 4, 1857, on a trial had before Mr. Justice Hoitman, without a jury.

This is an appeal by the plaintiffs from a judgment in favor of the défendant, rendered on a trial had March 18th, 1859, before Mr. Justice Slosson, without a jury. The complaint states that the defendant made his promissory note dated October 28, 1855, for $551.25, payable one year after its date to the order of the Atlas Mutual Insurance Company, for value received, and delivered it to said Company.

This is an appeal by the defendant from a judgment rendered on a trial had November 9,1858, before Mr, Justice Slossoh without a jury.

John R. Currie is plaintiff in this action, and Edward P. Cowles and Wife, and the President, Directors and Company of the Housatonic Bank, are the defendants. The suit was commenced October 15, 1855. The complaint states that William and James Currie owned the houses and lots, No. 263 Tenth street; Nos. 131 and 133 Eleventh street, and No. 58 East Twenty-Sixth street, in the city of New York, and being embarrassed, assigned them to Gr.

Appeal by the defendants from a judgment on a verdict. Trial had before Bosworth, Oh. J., and a jury, November 15th, 1859. The suit is on a note in these words, viz.: 145 Subscription Note. $1,000. New York, Aug. 25, 1856. Twelve months after date, we promise to pay the Globe Mutual Insurance Company, or order, for value received, one thousand dollars, payable at the Merchants’ Bank. Due Aug. 25-28, 1857. McCOLL & FRITH. No. 537.

Appeal by the defendant from a judgment entered on the report of the Hon. William T. MeCoun, as Referee. The action was brought by Rigney as the vendor of real estate situate at the corner of Fifth avenue and Thirty-Second street, in the city of New York, to enforce the specific performance of a contract for the sale of it to the defendant.

This action was brought to recover the fees, allowed by the laws of the State of New York, for the pilotage of a vessel into the port of New York, (fixed by such laws at $57.60,) with the interest thereon from the 28th of December, 1857, upon the grounds: that the plaintiff is a Pilot, duly licensed for the port of New York by the Board of Commissioners of Pilots created and organized under and by virtue of the laws of this State; that the defendant is the owner of the…

Appeal by the defendants from a judgment entered upon the report of Edward P. Cowles, Esq., Referee. The complaint herein alleges, in substance, that on the 12th of September, 1855, the plaintiff was possessed of land at Athens, in the State of New York, and entered into certain agreements with the defendant, James H. Sturges and one Braisted, by which it was agreed to put up buildings, machinery, &c., for the gathering of ice for sale.

Appeal by the plaintiff from a judgment and an order denying a motion made by him for a new trial. The action was tried before Boswobth, Ch. J., and a jury, May 2, 1859. It was brought to recover possession of personal property which the plaintiff claimed to own, and which the defendant, as Sheriff, had seized on an execution on a judgment rendered December 20, 1856, in favor of Henry Husmeyer against James Gr.

This action, was brought in the Supreme Court, of July Term, 1846, and was tried on the 21st of March, 1848, before Mr. Justice Edwards of that Court, by whom a nonsuit was ordered at the trial. The plaintiff made a case whereon to move for a new trial, and in that stage of the proceedings, the action was, with others, (pursuant to statute,) transferred to this Court, and the motion brought to a hearing in General Term.

Scudder, Esq., as Referee, who, on the trial of the action, dismissed the plaintiff’s complaint.

<p>1. The judgment of a Court in another State of the United States has no other or greater force or effect in this State, than it has in the State where it was rendered.</p> <p>2. The statutes of Missouri provide that “ all contracts which, by the common law, are joint, shall be construed as joint and several;” and, “in all cases of joint assumptions of copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable:" Held, in an action brought in this State against B., Gr., and D., to recover money paid by the plaintiffs in this State upon bills drawn by B., Gr., and D., as copartners, and accepted here by the plaintiffs without funds for the accommodation of such drawers, that a judgment for the same cause of action, recovered against B. in Missouri, is no merger of the original cause of action as against Gr. and D., and does not discharge the latter therefrom.</p> <p>3. Held, also, that, in such case — the plaintiffs having accepted from B. his bond, under seal, in compromise of such judgment, conditioned for the payment of the amount agreed upon, by installments of $500 each, for which B. gave his notes at one, two, three, four and five years respectively, with a further provision that, although satisfaction of the judgment was then entered ot record, such satisfaction thereof should not be deemed payment of the debt unless such notes should be paid at maturity, and in default of such payments the amount paid should be credited and the whole residue of the amount of such judgment should remain due, and the debt evidenced by the judgment should remain in full force until all the five notes are paid—these facts are no defense to an action in this State against Gr. and D. upon the original cause of action, although no default has been made by B. in the payment of his said notes.</p> <p>4. These propositions are deemed the necessary result of the decision in Suydam v. Barber. (18 N. Y. R., 468.)</p>

Appeal by the defendants from a judgment rendered ón a trial had in March, 1859, before Mr. Justice Hofeman, without a jury.

A CASE upon questions of law arising at the trial, and there ordered to be first heard at the General Term. The suit is by the plaintiff as indorsee, and against the defendants as indorsers, of a note which, with its indorsements, is in the words following, viz.: ‘‘$595.80.

Appeal by the defendants from a judgment rendered on a trial had in February, 1859, before Mr. Justice Hoffman, without a jury. The action is brought by Henry J. Wright, as plaintiff) against Richard A. Storrs, survivor of Daniel Burgess, (who composed the firm of Daniel Burgess & Company,) and John Paine, administrator, &c., of said Daniel Burgess, to recover a sum alleged to be due to the plaintiff from said firm of D. Burgess & Company.

Appeal by the plaintiff from a judgment ordered on a trial had November 14, 1859, before Mr. Justice Moncbiee and a jury. This action was commenced on the 6th day of February, 1858, to recover $1,000, alleged to be due for the rent of the store and premises No. 163 Greenwich street, in New York city, for the quarter ending November 1, 1857.

Appeal by the defendants from a judgment on a verdict rendered on a trial, had June 7, 1859, before Mr. Justice Pierrepont and a jury. This is a suit brought by the plaintiffs, copartners in trade, and as such copartners, owners of one-half of the brig Crimea, of Bath, Maine, to recover the sum of $712.62, net freight-money of said brig, collected by defendants, and belonging to plaintiffs, as owners of said one-half.

This case came before the Court upon a submission of a controversy, without action, pursuant to section 372 of the Code of Procedure. The case containing the facts agreed upon by the parties was authenticated in due form, and was as follows, viz.: “ The parties to this controversy hereby mutually agree upon and submit to this Court the following statement of facts: “jFirst.

Appeal by the defendant from a judgment entered upon the report of A. Underhill, Esq., as Eeferee. The action was brought, December 26, 1857, by the plaintiff, as assignee of E. 0. Suydam, to recover $1,666, for moneys lost by Suydam at play at the game of faro, and won by the defendant, between the 19th of September and 51st of October, 1857. The complaint states that Suydam so lost, in all $1,736.

<p>1. Where two adjoining dwelling houses are supported by a wall standing partly on the soil of each owner, which was erected as ar party wall, and has been used as such over twenty years, and one of such owners without the consent of the other removes it while in a sound condition and suitable and sufficient for the purpose for which it was erected, and erects a store on his lot and a new party wall, he is liable to the owner of the adjoining lot for any loss of rent caused, and the expense of all repairs made necessary by the removal of the old and the erection of the new party wall.1</p>

Appeal by the plaintiffs from a judgment against them entered on the report of J. W. C. Leveridge, Esq., as Referee. Held: “ as matter of law, that in furnishing the said supplies to the said ship or vessel, in which the plaintiffs and defendants, and others not included in this action, were interested, the plaintiffs acquired no lien, and they cannot recover against these defendants in this action, for such supplies as are stated in said complaint. “…

This action comes before the Court on questions of law arising at the trial upon exceptions, there taken by the defendants, to refusals of the Court to charge as requested, and also to the charge made. The suit was tried before Bosworth, Ch. J., and a jury, on the 13th of March, 1860.

This action, was tried on the 22d day of June, 1859, before Mr. Justice Pierrepont, and a jury. The issues therein, so far as it is material to state them for the purposes of the case as decided in General Term, were as follows: The complaint alleged that on the 22d day of August, 1857, the defendants forcibly took and carried away certain goods and chattels of the plaintiff, of the value of $6,000, and converted them to their own use.

<p>1. After a trial, and a review at General Term of the exceptions taken at such trial, the Court, upon a motion to conform the pleadings to the facts proved, cannot so amend them as to convert, merely by force of such amendment, a correct decision into an erroneous one, and an irreversible into a reversible judgment.</p> <p>2. After judgment, or after a trial and a hearing at General Term and a decision there of the questions of law arising at the trial, amendments of the pleadings are allowed only for the purpose of upholding the judgment, when that would be just, but not_ for the purpose of making regular and correct proceedings erroneous.</p>

Motion by the plaintiff in an action for assault and battery and false imprisonment for judgment on a default of answer, and that, instead of an order that a writ of inquiry of damages issue to the Sheriff, to be executed by him before a Sheriff’s jury, an order might be made directing that the plaintiff’s damages be assessed at the now present Trial Term, before the Judge holding such Term, and a jury there impanneled.

This action was brought to recover damages for the wrongful conversion by the defendant of divers goods and chattels of the plaintiffs.

This is a motion to open a default taken at General Term, on the first Monday of June, 1860, affirming the judgment as to the defendant Kimball, and also to vacate an order made on the 16th of that month, denying a previous motion to open such default. The defendants appeared by different attorneys; at a trial before the Court, without a jury, the plaintiff’s complaint was dismissed, and judgment was perfected in May, 1858.