Volume 19 — Howard's Practice Reports

On the 24th day of November, 1858, Randolph and others commenced an action in the supreme court, as judgment creditors of Sands and Paradise, to set aside an assignment made by Sands and Paradise to one John Dean, for the benefit of their creditors, and enjoined the assignor and assignee from disposing of any of the property of Sands and Paradise; and on the lYth day of December,• 1858, obtained the appointment of Luther R. Marsh, Esq., as receiver of the assigned and other…

This was a summary proceeding to remove the defendant from the possession of a farm, in the town of Binghamton, as tenant of the plaintiff. It was commenced before a justice of the peace, under the act of 1849.

This was a libel filed by William C. Talbot and others, “ composing the firm of W. C. Talbot & Co., of San Francisco, and the Puget Mill Company, of Puget Sound,” against the defendants, as owners of brig Eolian, to recover damages by reason of an alleged violation of a charter for a voyage from San Francisco to Puget Sound, with a cargo of plank, square timber and spars; thence to China; and thence, with merchandize and passengers, back to San Francisco.

The defendant moves to dissolve an injunction granted in favor of the plaintiff, who was appointed receiver of the American Timber Bending Company, upon the return of an execution against the company unsatisfied, by virtue of the provisions of 2 Revised Statutes p. 463, § 36.

Upon the summons and complaint in this action, with the usual affidavit of verification, and upon an undertaking executed by two persons, neither of whom is the plaintiff, an injunction order was granted by a justice of this court before the summons had been served on the defendants, and the injunction order was served with the summons and complaint upon each of the defendants.

<p>A resale of mortgaged premises on foreclosure, ordered on terms, where, among other circumstances of suspicion, it appeared that the agent of the mortgagor induced the latter to believe that a certain sum (near the value of the premises) would be bid by a responsible party, and requesting the mortgagor not to attend the sale; and that, on the sale, the premises were struck off to the party named for $2,500, less than the sum mentioned, being more than 10 per cent less than the actual value of the premises.</p> <p>Besides, it appeared that the result of the sale, if carried out, would probably involve the mortgagor in the loss of all her property, and leave her liable for a large deficiency on the second mortgage.</p> <p>It is in the discretion of the court to order a resale on foreclosure of mortgaged premises, although the sale may be more than 10 per cent less than their value; but a sale of premises ordered by a surrogate, must be set aside, and a resale ordered, in pursuance of the statute where such a deficiency appears on the sale. •</p>

<p>Where the order appointing a receiver of the defendants’ property, authorized him “ to pay the amounts due and maturing for materials and supplies about the operation and for the use of said road.” Held, that it could not properly be construed to include the payment of a renewed promissory note, originally made by the company in payment of a claim for re-rolling iron for the use of the road in 1856 or ’57.</p>

This action was brought to set aside a deed of a lot of land, on which there was a house, situated in the town of Veteran, Chemung county. The deed was executed by Solomon Bennett, in 1856, to the defendant, Mary H. McKee, the wife of the other defendant, John A. McKee.

An inquest was taken in the cause by the defendants • before Mr. Justice Strong, who held that the admission contained in the affidavit of the plaintiff (commencing the action) served with the other papers in the cause, was sufficient, and required no other proof of value, and assessed the value of the property at the amount stated in said affidavit. On the trial, subsequently, before Mr. Justice Emott, no proof was given or offered as to the value of the property.

This action was commenced in March, 1859; the complaint charged the defendants with an indebtedness of $141,586, for moneys fraudulently obtained from plaintiff between the first day of January, 1849, and the 16th day of March, 1858, by means of overdrafts and false entries in the books of account of the plaintiff, in collusion and with the aid of a book keeper in the employ of the plaintiff during that time.

<p>Under § 309 of the Code, an extra allowance of costs may be ordered, upon the dismissal of the complaint by default, upon proof of service of notice of trial of issues of law.</p>

(For a full statement of the whole facts of the case, see 1 Bosworth-, 246.) The plaintiffs are commission merchants in the city of New York, with a branch house in New Orleans. The defendants are commission merchants in Liverpool, with a branch house in New York.

<p>The right and duty to examine, inquire and determine, whether or not an applicant for admission to practice as an attorney and counsellor of this court, is qualified for and entitled to such admission is, by the constitution, vested in the court; and the legislature cannot take away such right.</p> <p>The act of the legislature upon this subject, passed April 7, 1860, in relation to the law school of Columbia College, does not materially differ from the act relative to the law school of the New York University, and the principle of the decision made in that matter (ante page 97,) applies to and must determine the present application.</p>

<p>It is clear that the fairness of a judgment obtained against a lunatic may be attacked by an equitable action instituted by his committee.</p> <p>And, as under our present system, general jurisdiction in law and equity has been" conferred on this court, there is no well grounded objection to its setting aside judgments against lunatics on motions made by their committees.</p> <p>Difficult questions of fact arising on such motions may be referred to a referee to determine.</p>

The complaint contained allegations for work and labor done at the request of defendants. At the trial the plaintiff recovered judgment.

<p>The lien of an attorney for his compensation attaches to the subject matter of the claim, and exists from the commencement of the action to judgment; and the taxable costs ar e prima facie the measure of such compensation.</p>

This case came up on an order that defendants show cause why an injunction granted against them for selling certain collateral securities hold by them should not be made perpetual. The following is the opinion of the court, in which the facts are stated:

An action was commenced in April, 1858, by the plaintiff against the defendant, by the personal service of a summons and complaint; notice in the summons being in pursuance of subdivision 1 of section 129 of the Code. The complaint set forth a lease by the plaintiff' to the defendant, dated March 30th, 1851, of a certain farm in the town of Phelps, in the county of Ontario, for the term of one year from the first of April ensuing its date.

<p>eeBarrels” manufactured in this country and sent to Cuba, and there filled with molasses and brought back to our ports, are not liable to duty,</p> <p>Thé fact of their being filled with molasses on their return does not destroy their character of c< growth or manufacture of this country,55 nor that they are not cein the same condition,55—they are barrels still, whether filled with well-water or molasses from Cuba.</p> <p>Where the usual oath was offered to bo made by the importer that the article was the growth and manufacture of this country, as prescribed by the act of Congress, and was waived by the deputy collector, as being unnecessary and useless, the duty being claimed on another ground,</p> <p>Held, that it was only in case that the collector conceded that the article was entitled to entry duty free, so as to leave only the fact of the American character of the article to be established that the oath could be material or required by the collector,</p> <p>Held, also, that the collector iá estopped to set up thn omission to make the oath as a defence, where it has been waived by his deputy; being bound by the acts of the latter.</p>

This action was brought to charge certain real estate situated in the town of Decatur, in the county of Otsego, with the support of the plaintiff, and to compel the defendants to account for the use of the same. The defendant, Leonard, answered the complaint by a general denial of the whole and every part of it. It was then referred to S. H. Grant, Esq., to take and report the evidence to the court.

This action was brought by the respondents to foreclose a mortgage. The mortgage was executed by the defendant, Isaac Townsend, to his brother, Gamaliel Townsend, for about $1200, under the following circumstances : Jonathan Townsend, the ancestor of the two brothers, owned a farm in Tyrone, Schuyler county, N. Y., of about 108 acres, which he devised to his two sons—forty acres to Isaac and the balance to Gamaliel.

This suit was brought against the collector, to recover back a penalty of twenty per cent on the value of the goods for under valuation of silks, entered at the custom house, under the 8th section of the act of 1846. The penalty amounts to $508.20.

<p>This court has power to relieve a party to an action pending in it, from a judgment or order obtained against him by reason of the negligence, ignorance, or fraud. of his attorney, without any reference to an action against, or to the responsibility of the attorney.</p> <p>It is only when the courts require of their attorneys and suitors the exercise of entire good faith in the prosecution or defence of actions that they discharge their whole duty to the community.</p> <p>It is the right of a municipal corporation, by its proper officers, to apply to the court for protection, and it is the duty of the court to grant it, if it is made to appear that the conduct of their counsel is prejudicial to the rights of the city; especially, where the legislature has conferred upon the corporation counsel the management of all civil actions, independent of any directions from its officers.</p> <p>Under the facts and circumstances shown in this case, held, that it was the duty of the corporation counsel, on application to him by the mayor and comptroller of the city of New York, to appeal to the general term from the judgment entered for a large amount against the city, upon a report of a referee at special term, . nd that the subsequent order of the special term, setting aside this judgment on h 'tion of the comptroller, under the statute, was right. (See s. c., 18 How, J r. 97 and 213.)</p>

<p>In the matter of salvage service, there is no obligation of law, nor custom in the port of New York, requiring steam tugs to relieve each other gratuitously9 when disabled and requiring assistance.</p> <p>Where the Joseph Johnson, a tug employed in towing vessels in and out of New York harbor, came in collision with the schooner Henrico, off the Jersey shore below Sandy Hook, by which her smoke pipe was carried away, as well as some of the wheel arms and buckets, and part of the wheel house, and one end of her main shaft thrown out of its bed, her bowsprit broken off and her upper joiner work injured; being disabled from using her steam power, and left in an unnavigable condition, and after some twenty-four hours she drifted nearly into deep water and out of control of her anchor,</p> <p>And the steam tug Achilles (of great strength and power) at this time having approached, and, at the request Of the men on the Joseph Johnson, went to the schooner Henrico, (some five miles off,) and took off the master of the Johnson, (who had been on board of the schooner from the time of the collision,) and returned and passed a hawser to the Johnson, and towed her into New York, occupying some six hours in the whole,</p> <p>Held, that the state of the Johnson was unquestionably one of danger, and constituted the interposition and recovery by the Achilles an act of salvage,* and not one of towage merely; but no way attended with circumstances *of extraordinary merit in personal efforts, or exposure of life or property by the salvors.</p> <p>That on the facts disclosed $1000 was an adequate reward for the service rendered.</p>

<p>No action can be maintained in a state court for a tort committed in the Brooklyn Navy Yard,—the state having ceded the exclusive jurisdiction of that place to the United States $ the courts of the 1st ter only have jurisdiction of such actions.</p>

<p>Consignees, to whom, goods are shipped, and recognized by the master of the vessel as the proper parties to receive it, and to whom it was delivered by him and freight demanded, and who have made advances upon the goods in the usual way, can maintain a suit against the vessel for damages to the goods, although there were no bills of lading executed.</p> <p>"Where a master of a vessel consents to receive goods on board his vessel and carry them to the port of destination, he subjects the vessel to the common law liability of carrier, even if there is no bill of lading or other agreement entered into by the master. But' where there is a written agreement fixing the terms upon which the shipment is to be made, the vessel is bound by it.</p> <p>Where the shipper enters into an agreement repugnant to the terms of a charter party, of which he has no notice, his interests cannot be affected injuriously thereby.</p> <p>Held, upon the weight of testimony in this case that the cargo of cotton was badly stowed, and that sufficient attention was not paid to the sea water in the vessel, by using the pumps—the cotton being very wet when discharged from the hold of the ship. The vessel held liable for the damages.</p> <p>Where a libelant insists upon recovering damages to a cargo of cotton in an independent suit, he cannot apply any portion of them by way of abatement in a suit for the recovery of freight on the cotton, although he has set up in his answer to the latter suit such damages by way of abatement. The damages are an entirety.</p> <p>Where a portion of a cargo of cotton was shipped on deck, in violation of a fair inference from the terms of the agreement, and the freight to be paid was the usual rate for cotton under deck, held, on a question of right to recover for the rull amount of freight, as mentioned in the agreement, the freight of " that portion of the cotton carried on deck be reduced to deck freight, and at the same time the vessel held responsible for the transportation of it under deck.</p>

The stipulation containing the facts agreed upon, states that “the defendants, on the 3d day of October, 1859, at their store in Ithaca, without having a license to sell any strong or spirituous liquors or wines, sold strong beer in a quantity less'than five gallons, to wit: a glass of strong beer to Mr. J. E. Smith, to be drunk in their store or shop, and which was drunk in their said store.” The defendants claimed that they had a right to sell such glass of strong beer…

■ This action is brought against the defendants, who are president and cashier of the Mohawk Bank of Schenectady, to recover damages, which plaintiff alleges he has sustained by the false and fraudulent statement and report made and published by them of the condition and resources of the Mohawk Bank of Schenectady, as they existed on the 19th day of June, 1858, the plaintiff having, subsequent thereto, became the owner and purchaser of thirty-six shares of the stock of said…

<p>Appeal from a judgment at special term.</p>

This is an appeal from an order made at the special term, dismissing an appeal from an order of the city court of Brooklyn, granting a new trial upon terms, on the ground of newly discovered evidence. The judge, at special term, held that such an order was not appealable.

This action was tried before Mr. Justice Pierrefont and a jury, verdict being rendered in favor of the plaintiffs, and judgment thereon being entered, the defendants appealed to the general term. The action is for a total loss on a marine policy of insurance for $10,000 upon the ship Adriana, dated the 21st day of March, 1856, to take effect from the date thereof, and to continue till the voyage was ended, and the vessel moored in safety for twenty-four hours.

<p>On exceptions, in a case of collision, the amount allowed a barge for demurrage, while undergoing repairs, was held erroneous, where it appeared by the proofs that fifteen days elapsed after the barge was raised, and the owner had notice of the fact before he began to discharge her of her cargo. The fifteen days estimated service was not chargeable to the respondent. Also a pro rata abatement for wharfage. A charge of @60, for clothes of the master lost in the vessel, held not chargeable to the respondent.</p>

Motion on the part of the defendants for allowance of costs to them, and for disallowance of costs to the plaintiff, &c.

Application to compel the delivery to the applicant, of books and papers belonging to the supervisor of the town of Florence, Oneida county, N. Y.

<p>Where spiritualism with its usual tendency to free love on the part of the husband works its legitimate results, in the separation of his wife from him, she will be awarded the custody and care of the younger children, and the older children put to a boarding school (where the husband’s means are sufficient) at the husband’s expense; (without any particular modification of the general sentiment, that he is a public fool,)</p>

<p>Held by the court—1. That if it can be fairly inferred from the stipulations of the contract that the libelants meant to trust to the personal responsibility of the owner, the contract is inconsistent with the exercise of a lien, and the same is waived. (17 How. R., 53.) And it would also be waived if an unconditional credit were given for the payment, extending beyond the time for which a lien is given by the state law. (7 Peters, 324.)</p> <p>2. That the fair import of the lien law of this state is, that the material man shall have a lien for what the owner agrees to give him in payment for his work and materials, provided that which is agreed to be given is by the agreement to be given before the expiration of the time allowed by law for the lien to exist".</p> <p>3. That the owner of the Highlander agreed to pay the libelants by a note at three months, to be given when the work was finished, and for the fulfillment of that payment the libelants had a lien. And if the note for $1,400, at three months, had been given or tendered by the owner, the lien would have ceased, as in that case there would have been a credit extending beyond the time allowed by the state law for the existence of the lien.</p> <p>4. But the note not having been given or tendered, the libelants still have a lien upon the boat, as well for the balance upon the contract, as for the extra work.</p> <p>5. Wharfage not an item of lien in such a case, it is not a material furnished nor a necessary incident of the contract.</p> <p>6. In order to tax witnesses5 fees under the act of congress, (10 Statutes at Large, 167,) it must appear that they have actually been paid eo nomine at or before trial.</p>

<p>Where the partnership effects of an insolvent firm, are assigned to pay preferred private debts of one of the partners, for which neither the firm nor his co-partner were liable, the assignment is fraudulent and void as against the creditors of the firm.</p> <p>(The supreme court in this case, and in the case of Cox agt. Platt, ante page 121, and perhaps in several others, held that this provision in the assignment violated no statute, but only a principle of the common law which gives partnership creditors a preference in payment out of partnership property over the individual creditors of the several partners. Hence where there was no actual fraud, it did not invalidate the whole assignment. The provision being an illegal one, but not fraudulent, did not vitiate any other part of the assignment. This decision, of course> overrules those of the supreme court.—Rep.)</p>

<p>Held, in this case, 1. That it is the duty of the common council of the city of Rochester to raise the amounts necessary to support the public schools, and the payment of teachers, by the requisite taxes for that purpose; and the common council may raise in its discretion such sums as it may deem proper to purchase sites, build and repair school houses, within the limits prescribed by the charter for that purpose.</p> <p>2. It is the duty of the board of education of the city of Rochester, and it has the requisite power in its discretion, to disburse all such moneys raised and received according to law, in purchasing sites, building and repairing school houses and supporting teachers, and discharge all the contingent and incidental expenses connected therewith.</p> <p>3. The board of education can make no valid contracts except for the disbursement of the money raised, received and appropriated by law, and subject to its order for expenditure during each current school year, or which may remain in the treasury unappropriated by previous boards.</p> <p>4. It is the duty of the board of education to distinguish in its drafts and orders upon the moneys in the hands of the treasurer, between moneys drawn for building and repairing school houses, and moneys drawn and appropriated for the payment of teachers9 wages; and these funds should be kept distinct in the books of the city treasurer, and in the books of the school superintendent.</p> <p>The draft in this case in favor of the relator, being upon its face an order to -pay money for the building of a school h,ouse, and to be charged to that fund, the treasurer rightfully refused to pay it, there-being no money in the treasury applicable to the payment of such order.</p> <p>In refusing to make such payment the respondent simply performed his duty as treasurer of the city, intrusted with the public moneys, to keep faithfully such moneys, and allow no unlawful appropriation or diversion of the same from the particular object for which they were raised and designed by law.</p>

<p>It is never necessary in a complaint for injury to the person or property, to aver that the act did not occur through the negligence or carelessness of the plaintiff. Therefore, in an action under the statute of 1855, ch. 428, where the complaint averred ec that the plaintiff was the owner of goods and chattels in the town of Westfield; that a riot was there committed by certain persons, and the dwelling-house in which such goods and chattels then were, was set on fire by a mob, and the property of the plaintiff was thereby destroyed,”</p> <p>Held, sufficient. It was not necessary for the plaintiff to aver that he did not aid in, assist or permit the destruction of the property.</p> <p>Where the complaint averred that the statute was passed by the legislature, held, that the objection that the act was not passed by a three-fifth vote, could not be taken on demurrer. The presumption from the averment is, that it was properly passed.</p> <p>The act of 1855 held not unconstitutional, as violating the 1st section of the 10th article of the constitution, which says: “The county shall never be made answerable for the acts of the sheriff.” The only ground of liability under this statute, is the existence of a mob, or riot in the county, and the destruction of property by such mob.</p>

The Syracuse City Bank asks that the sheriff of the county of Onondaga be directed to pay to it certain moneys in his hands, the avails of certain property of the defendants in the above actions sold by him, and which moneys are claimed by the Onondaga Bank.

An order was entered, June 14, 1860, directing the defendant to deliver certain notes held by him, as trustee, to a receiver appointed previously in the action, and it was referred to a referee to summon the parties before him and direct the delivery to be made.

It is alleged in the complaint, in substance, that the defendant, Richard B. Stone, in January, 1858, for the purpose of defrauding his creditors, and particularly the plaintiffs, fraudulently and without consideration confessed a judgment to his brother, George B. Stone, for $1,354.19.

This case comes to us by an appeal from an order made by the judge of the city court of Brooklyn, setting aside a verdict and ordering a new trial. No judgment has yet been rendered in the court below, and the counsel for the respondent makes the objection that an appeal will not lie to this court from an order made before judgment.

<p>Where an attachment has been vacated by the court, after opposition and argument on the merits of the application, another application for the attachment on substantially the same facts, whether before the same or another court, will not be entertained.</p> <p>The defendant is not to be continually vexed by the same application; nor are the same or different tribunals to hear and decide upon the same matters more than once.</p>

<p>A plaintiff is barred from the right of maintaining an action in a state court against foreign consuls accredited to this country; and such consuls are not required to answer in chief, in order to procure the benefit of their exemption from suit in a state court.</p> <p>Where such consuls are joined in an action with other defendants, who are properly sued, and an injunction order inadvertently granted, the plaintiff may discontinue, without costs, as to the consuls; but only on payment of costs and damages arising from the injunction as to the other defendants; and not then if they have interposed a counter claim.</p> <p>Where a referee has reported the facts, and not the damages which the defendants have sustained by reason of an injunction order, the report will not be confirmed.</p>

This action was brought to charge certain real estate, situated in the county of Chenango, which the plaintiffs claimed was owned by the defendant, Clarissa A. Willard, wife of the defendant, William F. Willard, with the payment of a debt of less than $100, that said Clarissa contracted after her marriage, by employing the plaintiffs to repair and paint a house on the premises, which the plaintiffs sought to charge the debt upon.

<p>The right of a defendant to remove a cause into the United States court, is lost where he moves in this court to discharge an order of arrest.</p>

<p>Under the present union of common law and equity jurisdictions in the same court, and a modification of its practice, a defendant, in an action of ejectment, may set up and rely upon such equitable defence as he may have to the plaintiffs right of action, and which was formerly only available by resort to a separate tribunal.</p> <p>Where the court of appeals have reversed a judgment of the supreme court, and ordered a new trial; and on the second trial substantially the same evidence only is produced, this court, on a review of such second trial, are not bound to follow the decision of the court of appeals, where it appears that some material facts in the case, and some legal principles resulting therefrom, were not brought to the notice of the court of appeals, and which facts and principles have the effect to qualify and perhaps take away entirely the effect of the judgment rendered by that court.</p> <p>Where a party defendant, in a suit in partition (in the late court of chancery), died pending the proceedings (after an order taking the bill as confessed, and before a referee to the master), held, that the suit abated as to such defendant, and his interest in the lands which were the subject of it, and his title then vested in his heirs at law; but this event did not remit the proceedings as if they never had been; they were open to be revived and resumed at the same stage of progress as they were at the time of such death.</p> <p>The process by which the representatives of the deceased defendant were to be brought into court, was the service of a copy of an order to revive; but like all other process the service might be waived, and the party appear voluntarily and become an actor in the proceedings.</p> <p>And where such proceedings, in partition, after the death of such defendant, were conducted to a sale of the premises, the giving of a deed to the purchaser, and the deposit of the proceeds in court, without an order to revive as to the heirs at law of such defendant,</p> <p>Held, that the decree of sale was not a final act in the proceedings, and that the heirs at law of such defendant, having subsequently become parties and actors in suits for the distribution of such proceeds, asserting and claiming the regularity of the partition and sale, before any order to revive had been entered or served, was an appearance equivalent in all respects to the due service of the order to revive, and concluded them as to the regularity of the proceedings, and estopped them from denying that their title passed by the sale, as against a bona fide purchaser of the premises.</p>

<p>Where a party obtains judgment under § 247 of the Code, he can recover costs as upon a trial.</p> <p>Where more than one action is brought upon a bond, promissory note, or other instrument against different parties thereto, as mentioned in § 304 of the Code, a full till of costs can only be recovered or taxed in one action, and the disbursements only in the others; and where there is but one such action brought, and there is a proper severance caused by the acts of the defendants, the same principle prevails. But where, after severance and judgments, two appeals are brought (which are in the nature of original or new actions), the plaintiff, if he succeeds, is entitled to full costs upon both appeals. The provision of § 304 does not apply to the costs upon an appeal prosecuted by the defendant.</p>

<p>Where an express company, as a common carrier, took from a person a promissory note, to be transmitted to a tank for discount, with directions to bring back the proceeds to him, accompanied by a letter from such person to the cashier of the bank to return the proceeds of the note to him by the express company, the company, on delivery of such proceeds to such person, held, not liable, although it turned out that the recipient of the proceeds stole the note, and falsely represented himself as the maker and owner of it.</p> <p>There was no promise or duty that could be raised, either express or implied, that the express company would deliver the proceeds of the note to the genuine person, the real maker of the note, who it appeared was a stranger to the company, and had no connection with the transaction.</p> <p>Besides, it appeared that the person who procured such note to be discounted, and the proceeds to be thus returned to him, had, before sending the note, altered it, whereby it became a forged note, and not obligatory at all upon the real maker; held, that it would be an alarming and dangerous doctrine to lay down that a common carrier is responsible for the conveyance of forged paper.</p>

<p>Where a plaintiff resides out of the city of New York, he may bring his action before any justice of the district courts in the city; and, in such case, the summons must be served not less than two days before the time for appearance mentioned in it: a service on the 14th returnable on the 16th, is good.</p> <p>Where the defendant said, when he received the summons, he put it in his pocket and forgot it until the time of its return had passed; held, not a good excuse for granting a new trial, especially where the court could see that he had no substantial defence.</p>

This action was commenced December 25, 1858. The plaintiff claimed to recover the value of a piano, taken by the defendant as sheriff of the county of Cortland.

This was a motion to stay proceedings on the appeal from the order, until the appeal from the judgment could be heard in the general term. Trial was at Albany circuit, January, 1853. Motion for new trial, &c., made and denied at Rensselaer special term, October, 1853. An appeal taken from that order; that appeal heard at general term, and the order affirmed. An appeal from that decision of the general term taken to court of appeals.

<p>Where, on an application by the plaintiff for alimony, in an action of divorce, the pleadings and papers present a case of serious doubt of her ultimate success, the application will be denied.</p>

Motion to amend answer and re-adjust costs. The action was commenced in 1858, to recover the possession of personal property; the defendants appeared and answered the complaint by Robert Livingston, their attorney ; the cause was placed upon the calendar, and reached at the June trial term, 1860, and on the application of the defendants the court made an order that the trial of the action go off for the term, on payment of the costs of the term, to be adjusted by the clerk,…

This is hh action brought by the attorney-general in the nature of quo warranto, for the purpose of obtaining a judgment oristing the defendant, Orson Ames, from the office of county superintendent of the poor, in and for the county of Oswego, and also declaring the relator, Lucius A. Hovey, entitled thereto. The action was commenced by the service on the defendant the usual summons and complaint.

An order in supplementary proceedings was made by Hon. Noah Davis, Jr., a justice of this court, residing in the eighth district, on the 24th day of February, 1860, appointing Dennis Bowen, Esq., of Buffalo, referee, and ordering defendants to appear before said Bowen on the 28th day of February, 1860, for examination. On the 29tl) day of March, 1860, defendants made a motion before Justice Davis, at Chambers, in Erie county, for an order vacating said order of reference.

<p>The court will not interfere, by injunction, to protect a party in the use of trade marks, which are employed to deceive the public, and to deceive them by fraudu lent representations contained in the labels and devices which are claimed to con stitute wholly, or in part, such trade marks. (Following the case of Partridge agt. Mcnck, 1 Howard’s Appeal Cases, 54=7.)</p>

<p>A sale (of real estate) may be made as well by an executory contract, as by a deed of present bargain and sale.</p>

<p>Report of referee set aside as against the weight of admissible evidence, and new trial ordered.</p>