Volume 2 — Abbott's New York Practice Reports

<p>Malicious PeosecutioN. — EvideNCE.</p> <p>In an action for malicious prosecution, the fact that the jury convicted the plaintiff, in the prosecution alleged to have been malicious, is conclusive evidence of probable cause.</p> <p>And where this fact appears by the declaration, it is fatal to the suit.</p> <p>The only exception to the rule, is the case in which the plaintiff sets up that his conviction was fraudulently procured by the defendant, by means which prevented the plaintiff from setting up his defence.</p>

Appeals from orders. This proceeding arose in the supreme court in the first district, upon the petition of Mortimer Livingston and Henry W. Livingston, infants, by John Livingston, their guardian, for the removal of Daniel 0. Birdsall from the office of trustee under the trust deed of William Winter.

Motion to compel a, purchaser, on a sale in partition, to complete bis purchase. This was an action commenced under the Code, in February, 1853, for the partition of the lands late of one Jennings, among his heirs at law. Judgment of partition was rendered, and a sale was made, at which one J. G. Flammer became the purchaser. Flammer subsequently refused to complete his purchase, upon the following grounds. 1.

The plaintiff brought his action, and recovered judgment, in the county of Schoharie. At the commencement of the suit he obtained an order of arrest, under which the defendant was taken, on the 6th January, 1852, and held to bail. After the plaintiff obtained judgment, no execution having been issued, the defendant’s bail surrendered him, and on 19th July, 1854, were exonerated.

<p>SUMMARY PROCEEDINGS.-NOTICE.-AFFIDAVIT.</p> <p>A notice of thirty days given during a calendar month which contains but thirty days, is a “month’s notice.”</p> <p>The requisites of a landlord’s affidavit made upon application for the summary removal of a tenant at sufferance who holds over after notice.</p> <p>Failure to appear before the justice on the return of a summons in summary proceedings to remove a tenant, admits the rights of the landlord, and precludes the tenant from afterwards objecting to irregularity in the proceedings on certiorari.</p>

20), against persons sub-posnaed as witnesses before a committee of the Board of Aldermen of New York City, for their refusal to testify. A special committee was appointed April 26, 1855, by the Board of Aldermen to investígate a report made by the Chief of Police to the Board, stating the places of birth of the policemen in the employ of the department, and to investigate also, any and all frauds in the police department.

<p>Exceptions taken on the trial and directed to be heard in the first instance at general term.</p> <p>The action was brought by Henry B. Leeds, and Allen B. Miner, on a contract by which the defendant, Sidney W. Bowen, had employed them as auctioneers to sell a stock of goods.</p> <p>The cause was tried on the seventh day of March, 1862, before Mr. Justice White, and a jury. The facts are stated in the opinion of the court. It.may be added, that the plaintiff Miner testified that "About the first of ¡November, Mr. Bowen called upon us .and engaged us to make a sale of his property. * * * He wished us to take charge of the sale, and do everything in our power to make it a successful sale, stating that he would advertise it specially himself, and would either have his catalogue printed, or that it was in process of printing. He wished us to perform all the necessary duties with that exception, and asked me what we would do it for the lowest, and I told him we would provide the proper clerks, distribute Ms catalogues, and take all the necessary and incidental action to make it a successful sale for five per cent., if that should be the amount of the sale.” Another witness testified that Mr. Miner told the defendant that if the sale amounted to ten thousand dollars, he would distribute the catalogues he intended to have made out for paper and paper hangings, and would put in his general advertisement, and furnish the clerks, and perform all the duties of the sale for five per cent.</p> <p>The testimony on the part of the defendant, did not conflict. with this, except in contradicting that he agreed to sell the whole stock,-or any particular amount.</p> <p>The counsel fqr the defendant requested the judge to charge the jury that unless there was an agreement in writing, made between the parties,, the plaintiffs were not entitled to recover- a greater amount than two and a half per cent., upon the amount of the sales actually made by them.</p> <p>The judge refused so to charge; to wMch refusal the counsel for the defendant excepted.</p> <p>The judge charged the jury that an agreement in writing was not necessary for such a service as the plaintiffs undertook to perform for the defendant. They might make the agreement verbally; when the service, as proved to be here, was more than the special services wMch the statute contemplates, an agreement made verbally was binding upon the parties; and he therefore directed the jury to render a verdict for the plaintiffs for five hundred dollars; to which charge the counsel for the defendant excepted.</p> <p>The jury found a verdict accordingly, and the judge further ordered that the exceptions taken herein be heard in the first instance at the general term,'</p>

Motion to discharge purchaser at a judicial sale. This action was brought, by Daniel 0. Silleek, administrator, &c., of Adelia Silleek, and another plaintiff, against Jesse A. Heydriek, and others, for foreclosure of a mortgage; and after judgment and sale, the purchaser objected to the regularity of the proceedings, and moved to be discharged.

Samuel M. Pettingill and another, owners of a house in the city of Hew York, commenced summary proceedings under the statute to regain possession thereof, from the tenant Mary Y. Bean, on the ground that she was holding over after the expiration of her term. Their application for a warrant to dispossess the tenant was made to Hon. A. D. Russel, city judge of the city of Hew York. Pending the proceedings, the tenant brought the present action for an injunction.

Exceptions taken at the trial, and directed to be heard in the first instance at the general term.

<p>Divisibility of ActioNs. — Distinct Aooounts.</p> <p>The plaintiffs carried on two distinct branches of business, in distinct apartments, employing different clerks in each, and keeping distinct accounts. The defendants dealt with them in both branches of business, but the plaintiffs kept separate accounts with them, in each branch, and sent in separate bills for the amounts due. — Held, that the two accounts constituted distinct causes of action ; and a recovery upon one formed no bar to a suit upon the other.</p>

Demurrer to complaint. This action was brought by Leonard B. Lindsley and others against Frederic W. Simonds and Abraham Edwards, to charge them as stockholders, with certain debts of their corporation.

The plaintiffs had brought two actions against the defendants, both upon the same contract, but for two distinct instal-ments accruing upon it. The first suit was commenced on January 3, 1855, at which time the instalment sought to be recovered in the second suit was not due. The second suit was commenced on the 17th February following. The actions were at a considerable distance from each other upon the calendar.

The application was by motion, on notice, heard at the Columbia county special term, the relators being residents of Albany, an adjoining county.

This action was brought by the plaintiff as assignee of the firm of Charles Pitt & Son, upon an account for work and materials furnished for the defendant. The defence was a general denial, payment, and set-off. On the trial before the justice, the plaintiff called one of the assignors as a witness.

This application was for an attachment against the person of the defendant, to compel him to answer for an alleged contempt in not appearing to be examined previous to the trial, in accordance with a summons served on him by the plaintiff. The facts sufficiently appear in the opinion.

Attachment against the estate of an absconding parent. In February, 1865, upon proof presented by the wife of W. B. that her husband had absconded from her and her children, leaving them chargeable upon the public for support, Police Justice Ledwith, of the city of Hew York, issued a warrant under his hand and seal reciting the facts, and authorizing the commissioners of public charities and corrections to take and seize the goods, chattels, effects, things in action, and…

John Cavanagh was tried and convicted at the Kings County Oyer and Terminer for violation of his duty as a commissioner of excise, and was sentenced to fine and imprisonment, in the county jail. Tie was subsequently discharged on habeas corpus, on two grounds. (The People v. Cavanagh, 1 Parker's Or. P., 588; Matter of Cavanagh, 10 Dow. Pr. P., 27). 1.

Appeal by the defendants, from an order denying a new trial after verdict against them, and from the judgment entered on the verdict.

The New York Superior Court had ordered the comptroller of the city of New York, to pay a certain judgment for $1,527 83, which the relator had recovered in that court, against Walter E. Jones and one Johnson, out of money due from the City to Jones. The comptroller accordingly drew this warrant upon the treasurer, payable to the sheriff, for the amount of the judgment.

<p>RECOVERY OF SPECIFIC PERSONAL PROPERTY.-DAMAGES.</p> <p>In an a'ction for the recovery of specific personal property, with damages for its detention, in case of failure to answer, the damages must be assessed by a sheriffs jury, unless a long account be involved, in which case a reference may be ordered. But plaintiff may waive damages, and take judgment for the delivery only.</p>

This was an action brought in the Marine Court to foreclose a lien under the “ Act for the better security of Mechanics,” &c. It was argued in the Marine Court upon an agreed statement of facts. From this statement, it appeared that the plaintiffs, A. M. Quimby & Son, were employed in the fall of 1854 by Sloan & Leggett to attach lightning rods to certain buildings in process of erection by the latter firm.

Demurrer to complaint. The action was brought by William H. Lewis, assignee of the Broadway Bank, against the Park Bank.

Motion to set aside execution. The plaintiff in this action, John W. Hadfield, having recovered judgment against the corporation of the city of New York issued execution therein, which, the defendants now moved to set aside.

This action was brought by John Hager against Henry Tibbits.

This action was brought by Henry 0. Adams against Peter Gr. Bush and Jacob G. Bush, survivors of Peter G. Gaiioek, deceased, to recover for services alleged to have been, rendered by the plaintiff, upon the retainer of defendants and Garlock, as their attorney and counsel.

Demurrer to complaint. This was a proceeding to foreclose a lien. The facts in this case were the same as in that of Quimby a. Sloan, Ante, 93, except that in this case the notice of lien was not filed until after the recording of tlie 'assignment. The complaint set forth the assignment, averring that it was made subject to the plaintiffs’ rights under the act. The action was brought in the Common Pleas.

This was a proceeding commenced in the Sixth District Court of the City of New York, for the foreclosure of a mechanic’s lien. The plaintiffs, constituting the firm of P. Cannon & Co., claimed a lien against the defendants, Wagner, as owner, and Rowe, as contractor, for building materials furnished. Upon the trial the plaintiffs called the defendant Rowe, the contractor, as a witness.

This action was brought by Teaz against David Chrystie and the Mayor, Aldermen and Commonalty of the city of New York. Upon the trial below, the following facts appeared : That the defendant, Chrystie, had a contract dated 20th September, 1853, with the defendants, the Mayor, Aldermen, and Commonalty of the city of New York, to do the mason-work in building a station house in the Sixth Ward, for which a stipulated sum was to be paid in instalments.

The plaintiff having recovered, on a trial before a referee, only part of his claim, moved for a new trial, on the ground of surprise and newly discovered evidence. The motion was denied; and on appeal to the court of appeals, the order was affirmed, on the ground of a defect in the moving papers, the only judge who expressed an opinion on the merits of the case, holding however, that on the merits, the moving party would have heen entitled to a reversal of the order.

<p>APPLICATION FOR JUDGMENT.-REFERENCE.</p> <p>Where the complaint prays for an accounting, and judgment for the balance ascertained to be due, instead for a specific sum, it is necessary, in case of failure to answer, that an account should be taken by a referee.</p> <p>Application to the court for judgment upon failure to answer, may be made at Chambers.</p>

Motion to set aside an execution against the person. The facts on which the motion was based, are fully stated in the opinion. Section 284 of the Code, prohibits the issuing of an execution after the lapse of five years from the rendition of judgment, but does not prohibit the continuaance of an execution which has been issued within such five years. (Pierce a. Craine, 4 How. Pr. II., 257). The statute of 1787, (1 liev.

Motion to correct a case made for the purpose of an appeal. After the decisions in this cause immediately hereinabove reported, the plaintiff appealed to the court at general term from the order made by Hr. Justice Bocees, by which his renewed motion for a new trial was denied ; and at the general term the court directed the appeal to be dismissed.

The plaintiffs obtained at special term an order directing a reference to take and state an account between the parties, late partners. The defendants appealed from this order to the general term. They deposited $250 with the clerk as security upon this appeal. The defendants now moved, upon an affidavit that plaintiffs were proceeding under the order of reference, notwithstanding the appeal, for an order staying proceedings on the part of the plaintiffs.

Appeal by the defendants Joseph H. Batten, James W. Wilson, and Samuel W. Bridgham, from a judgment entered in favor of James A. Euthven and John B. Jervis, who were the plaintiffs, suing as executors, &c., of James Euthven, deceased.

<p>Action for a specific performance, injunction, &c.</p> <p>The facts involved sufficiently appear in the opinion of the court.</p>

In October, 1854, the relators, Henry S. and G. I. Figaniere, commenced an action in the New York Marine Court, against one Thomas Jackson, to recover damages for an alleged trespass. The action was tried before Justice Phillips and a jury, and the plaintiffs recovered a verdict for $450. The defendant appealed to the General Term, where an order was made granting a new trial, unless the plaintiffs would consent that their verdict should be reduced to $250.

Motion that defendant be required to satisfy a part of the plaintiff’s claim, admitted by the answer to be just. This was an action against the maker of two promissory notes, amounting to $1,667.84. The defendant, without denying the demands in his answer, claimed a set-off for money laid out and expended, and for work and labor, amounting to $150 ; tacitly admitting a balance due to plaintiff of $1,517.17.

This was an action to recover the possession of specific personal property, — fire-crackers, wine, india-rubber, &c. The affidavit of the plaintiff, in support of bis requisition, omitting some descriptive phrases, introduced merely for the purpose of identifying the property claimed, was as follows:— TITLE OF THE CAUSE.

.Motion for a re-taxation of costs. This action was brought by John Bird against the city of Brooklyn. The plaintiff’s attorney procured to be taxed by the clerk of the city court of Brooklyn (in accordance with the previous practice of that officer) a bill of costs including an item of one hundred and fifty dollars, for fifteen term fees. Defendant’s attorney now moved for a re-taxation.

This action was brought by William Newell against Ezra Wheeler, Frederick Lacey, Thomas Roundey, Jr., and O. W. F. Randolph. It was tried before Mr. Justice McOunn and a jury, at the March trial term of this court, in 1865. The action was brought to recover damages for a breach of contract. The plaintiff alleged that he was the owner and patentee of a patent for cleaning and polishing coffee.

<p>Writ of error.</p> <p>Roger Lamb, the plaintiff in error, was tried and convicted of the murder of his wife, at the March term of the court of general sessions, 1865, A. D. Russel, city judge, presiding; and the prisoner was sentenced to be executed. Upon the fifth of May following, a writ of error and stay of execution was obtained, and the case carried to the court of appeals. Upon the trial, the plaintiff in error offered to prove the character of the deceased, which was excluded, and exception taken. This, with certain exceptions taken to the judge’s charge, constituted the grounds upon which a reversal of the judgment was asked upon the part of the prisoner. The facts and circumstances of the homicide, and the points npon which a new trial was ordered, will fully appear in the opinions of the court.</p>

<p>EXAMINATION OF ASSIGNOR. — COMPETENCY OF DEFENDANT.</p> <p>When the assignor of a thing in action is examined by the plaintiff, (his assignee), the defendant can only offer himself as a witness to the same matter to which the assignor has testified, and not to matter which does not controvert the facts testified to by such assignor, but goes in avoidance or discharge of the liability resulting from those facts.</p> <p>Thus when a plaintiff proves by such assignor a sale to the defendant, it is not competent for the defendant to testify, on his own behalf, to a subsequent payment, or a release, or infancy, or other matter in avoidance of the legal consequences of the facts sworn to by the assignor.</p> <p>Whether such payment might be testified to by the defendant when the purchase and payment were simultaneous, and the assignor was examined as to the transaction generally. — Query ?</p>

<p>EXAMINATION OS' JUDGMENT DEBTOR.-SECOND EXECUTION.</p> <p>Issuing a second execution is not a waiver of supplementary proceedings commenced against the defendant under a prior execution returned unsatisfied.</p>

The committee of the New York Common Council who applied for an attachment against Mackellar and others, (Briggs a. Mackellar, Ante, 30), subsequently, in continuing their investigation subpoenaed George W. Matsell to attend and testify before them. The witness appeared, and was sworn, but before any questions were put to him declined to answer any questions that might be proposed. Accordingly, this application was made, for an attachment against him.

This action was commenced by the service of a summons, which stated that a complaint would be filed, and where. The defendants appeared separately, by different attorneys, who gave notice of retainer, but did not within twenty days after service of the summons, demand in writing a copy of the complaint.

The plaintiff moves for an order directing the sheriff to execute a writ of Habere facias possessionem, in a particular manner. Plaintiff and defendant owned adjoining lots. Defendant erected a building on his lot, and encroached one inch and seven-eighths of an inch on the easterly side of plaintiff’s lot. Plaintiff then built on his own lot, placing his easterly wall directly against the westerly wall of defendant’s building.

Motion that cause be set down for trial. This action was put at issue some years before the Code took effect. It having been tried, and a new trial ordered, the defendants noticed it for trial for the present October Term of this eourt, and placed it on the calendar. When it was reached, and called in its place on the calendar, the plaintiffs objected, that the defendants had no right to notice it, it having been put at issue before the Code.

<p>VERIFICATION.-By ATTORNEY OR AGENT.</p> <p>An attorney may verify a pleading on beha^“ of his non-resident client, although it appears that the client has a resident agent, and that it is through him that the attorney has obtained his information.</p> <p>It is not necessary that a pleading should be verified by the agent who knows most about the matter.</p>

<p>Motion that defendant be required to satisfy part of plaintiff’s claim, admitted by bis answer to be just.</p>

Demurrer to complaint. This action was brought by James O’Beily against the Mutual Life Lisurance Company of Hew Tort. The relief demanded in the complaint was that a certain policy of insurance upon the life of the plaintiff, executed by the defendants, may be declared valid and binding upon them, and that he may he reinstated in his rights in respect thereto, or that a new policy may be executed by them, and further or other' relief.

This action was brought in the Third District Court of the city of New York. The evidence for the plaintiff, the substance of which is stated in the opinion of the court, having been closed, the defendant moved fora non-suit, which was granted; and plaintiff appealed. It was competent for the owner of the wagon to dispose of it, so as to vest in the purchaser the right to sue and recover from any person who may be in the unlawful possession thereof.

Motion to set aside verdict, and for a new trial; ordered to be heard at General Term. This was an action upon a judgment recovered against the defendant in 1845, by Williams and others, and by them assigned to the present plaintiff. In defence, the defendant plead a discharge in insolvency granted to him in 1848, under the Two-thirds Act, by Mr. Justice Sandford, of the Superior Court.

This action was brought by Samuel A. Magnus, and others, against Samuel Trischet. After judgment and the settlement of a case, the defendant made two motions—one for re-settlement of case, he insisting upon inserting in the case the following clause; “ the within case contains all the evidence taken on the “trial,” which had been disallowed on the settlement; the other motion was for a new trial on the case.

Justice Babnard, denying motion for mandamus. The relators, Edward M. Banks, and others, trustees of schools, &c., citizens of this State, and residents of the 21st ward of the city, and trustees of common schools in that ward, obtained an order to show cause why a mandamus should not issue to compel the defendants, The board of education, to appoint Abner B. Holley, principal teacher of the male department of ward school No. 49, situated in that ward.

The plaintiff sued the defendant in the Marine Court on a claim for moneys received in a fiduciary capacity, and recovered judgment. Execution against property having been returned unsatisfied, the plaintiff issued an execution against the person of the defendant out of the Marine Court.

<p>Appeal by the plaintiff from a judgment against him on a verdict.</p> <p>The action was brought by Clarke B. Wheeler, on a promissory note made by the defendants,Elisha Buckman and William Lake, and which the plaintiff in his complaint alleged was indorsed by one Bussell, the payee, and delivered to the plaintiff in February, 1854. .</p> <p>The making and delivery of the note to Bussell, the payee, was admitted by the answer of the defendant, Buckman. The amount of principal and interest due upon the note was proven to be five hundred and thirty-one dollars and eighty-seven cents.</p> <p>Among other things the defendant offered to prove that the plaintiff commenced a suit on the same note in the Marine court, in the name of Bobert P. Bussell, the payee of the note, against Lake and Buckman.</p> <p>To this evidence the plaintiff objected; the court overruled the objection, and admitted the return from the Marine court, upon an appeal to the court of common pleas, in the suit of Robert P. Russell, against Lake and Ruckman. The counsel for the plaintiff excepted to such admission.</p> <p>It appeared from that return that the complaint in that action, which was made in February, 1854, and was signed by Wheeler (the present plaintiff), as attorney for Russell (the plaintiff in that action), set forth the note in suit, alleging it to be the property of Russell; that the defendants set up among other things, that the sheriff, under an attachment issued at the suit of one Drury against the property of Russell, had attached the note, in Wheeler’s hands; and that the justice of the Marine court had dismissed the action, on the ground that the sheriff was a necessary party.</p> <p>The return having been read, Wheeler offered to show that the reason why he brought such suit in the name of Russell, the payee, was, that he believed the note was not negotiable, and must, without a formal assignment other than the indorsement, be sued in the payee’s name. This evidence the court excluded.</p> <p>It appeared also, that in another former action, brought on this note, by Wheeler in his own name, in this court, and which had been dismissed, he had alleged in his complaint that Russell had assigned the note to him by an instrument under seal, dated in December, 1854.</p> <p>The testimony being closed, the court, without any summing up of the cause by the respective counsel, instructed the jury directly, and in express terms, to find a verdict for the defendants, which they did, according to the instruction, without leaving their seats.</p> <p>To these instructions, and to the ruling of the justice before whom this cause was tried, the counsel for the plaintiff excepted; judgment was entered upon the verdict; and from the judgment the plaintiff now appealed.</p>

This was an action brought against the bondsmen of a constable to recover the amount of a judgment for not returning an execution within the time required by law. Upon the trial it was objected that the bond was void by reason of not having been given according to the statute— and also that leave had not been given to prosecute the bond. The objections were overruled in the court below, and judgment rendered for the plaintiff; from which the defendants appealed.

This action was brought by A. T. Finn against G-. W. Gustin, E. G. Hutchins, A. II. Gustin and Eebecca M. Snyder, upon a note made by A. II. Gustin and Snyder, who were partners, by their firm name of A. II. Gustin & Co., payable to G-. W. Gustin and Eushmore, also partners, in their firm name of G. W. Gus-tin & Co., and by them endorsed. There was judgment against the defendants generally for the' amount claimed, and they appealed.

Demurrer to a complaint. This was an action of libel, brought by Joseph W. Caldwell against Henry J. Kaymond, Fletcher Harper, Jr., and Edward B. Wesley, proprietors and publishers of the New York Daily Times.

<p>Abatement oe Nuisance.—Injunction.—Constitutional Law.</p> <p>The common law right of summarily abating public nuisances is not abolished by the constitutional provisions protecting private property. Hence, if an act of the plaintiff which is interfered with by the health officers be a public nuisance, he cannot be entitled to an injunction to prevent their interference with it.</p> <p>The act of 18C5, constituting the Metropolitan Board of Health, does not authorize the Board to determine what shall be deemed public nuisances; but leaves that as a jurisdictional question</p> <p>That act is not unconstitutional as contravening the provisions of the constitution respecting the establishment of inferior local courts j nor as delegating legislative powers.</p>

Demurrer to complaint. This action was brought by Thomas P. St. John against William II. Griffith, William N. Brown, Samuel Moody, and Thomas Xetchum, to compel the specific performance of an agreement to give a chattel mortgage, alleged to have been entered into by Griffith and Brown with the plaintiff.

<p>Presentation of Check.—Waiver of Presentment.</p> <p>Bank chefcks issued and .payable in the city of New York, should be pre. sent.ed during the same or the next succeeding day during the usual banking hours, in order to charge the drawer in case of the insolvency of tho hank. A later presentment, except under circumstances excusing the delay, will discharge the drawer.</p> <p>The fact that the payees of such a chock received it as agents of third persons (also doing business in the same city,) and that delay occurred in passing the check to their principals, does not excuse from making presentment within that time.</p> <p>The drawer’s promise to pay a- check which has not been seasonably presented, is not binding as a waiver of presentment, unless he was aware or had notice of all the facts as to presentment that would tend to discharge him.</p>

<p>Bill of Exceptions. — Peactice in Case of Death of Paett.</p> <p>After decision upon a case made with leave to turn the same into a hill of exceptions, no exceptions can be taken but such as appear in the case.</p> <p>Where a defendant dies after the argument of an appeal and before the decision, and the judgment of affirmance is thereupon entered, nunc pro tunc. as of a day before his death, the thirty days limited by rule 18 for turning the case into a bill of exceptions, do not begin to run until the personal representatives of the deceased are made parties to the suit.</p> <p>The plaintiff may proceed to collect his judgment, and the representatives must at their peril cause themselves to be made parties, or the judgment must be enforced against them.</p>

The prisoner, William B. Babcock, was arrested on a charge of being concerned in a robbery of Government bonds from ' Bufas L. Lord. On the 20th of November, 1866, an indict-merit was found against him in the Court of General Sessions for receiving the bonds, knowing them to be stolen.

The action was brought by James H. McWilliams against John M. Mason, upon the defendant’s guaranty of payment of the bond of Thomas Carlile, for fifteen hundred dollars. Held: amounting to one hundred and ninety-seven or one hundred and ninety-eight dollars, which had been protested for some time.

This case was before the general term of the Supreme Court in November, 1854 ; and the argument and opinions rendered are reported in 18 Barb., 590. The facts will be found fully stated in that report. They were briefly as follows. The plaintiffs, John Brower and Jacob Cram, made an agreement with one of the defendants, Thomas E. Lovett, to sell to the firm of Thomas E. Lovett & Co., in which he was a partner, fifty barrels of potashes, for $1657 08, to be paid on delivery.

This was an action brought in the New York Marine Court, by William Churchill, Jr., against Joseph B. Marsh and Cornelius G. Yan Deusen, for the recovery of $229 91, due on a promissory note made by defendants to the plaintiff.

The plaintiff in this case was a married woman, and while traveling with personal baggage on the defendant’s road, the baggage was lost. She brought this action in her own name, without joining the name of her husband, to recover damages for the loss. After verdict in her favor, the defendant appealed.

Motion to dismiss complaint at the trial. This action was brought by Richard Fannin against William McMulIin, and John Fenner and his wife, to enforce specific performance of a contract of purchase of lands. The plaintiff had advanced money to enable the defendant McMulIin to complete a purchase of real properly, upon an agreement for an equal interest in the property upon contributing equally to the purchase money.

This was an action brought by Francis M. Knight and Moses Powell, upon a note made by the defendant Leopold Lang, and payable to the order of The Franklin Marine Insurance Company. It was given by the defendant for a premium on a policy of insurance issued to him by the company. It was endorsed, “ Knight & Powell or order.

Appeal by defendants from an order of the Otsego county court, awarding costs to the plaintiffs in that court. This action was brought by Calvin P. Smith against William . May and Lewis Spencer. The facts are stated in the opinion.

This action was brought by Chauncey L. Thompson against Elmer D. Jenks to recover the value óf some cattle the defendant caused to be levied upon and sold by virtue of an execution in his favor against the plaintiff. The defendant obtained a judgment against the plaintiff before a justice of the .peace for $202 34 damages, and sixty-two cents costs, on the 10th day of April, 1841.

Petition for leave to continue actions. These were two suits, the one brought by Parmenus Johnson against Denison Williams, the other a cross suit between the same parties. They were commenced originally in the late Court of Chancery, and were continued to the filing, in 1841, of a decree for an account, interlocutory to a final decree. The account was never taken. In 1850 the suits were revived in the Supreme Court, but no further proceedings taken.

Application to discharge certain parties from examination on proceedings supplementary to execution. The facts in this case appear in the opinion of the court. I. The proceedings are supplemental and ancillary to execution, not independent in any way, and are designed to help out the execution.

<p>Motion to vacate an order appointing a receiver.</p>

<p>Motion to vacate a docket of a judgment of the Marine Court, a transcript of which had been filed in the county clerk’s office.</p> <p>In January, 1855, the plaintiffs, Caesar Henry De La Figa-niere, and Guilhelme J. De La Figaniere, recovered a verdict in this action, which was for a trespass, for $450 damages.</p> <p>Judgment was entered on this verdict for #480 43 damages and costs. From this judgment the defendant appealed to the general term of the Marine Court. The plaintiffs, meanwhile, filed a transcript of their judgment with the county clerk. The defendants prosecuted their appeal, and an order was made therein by the general term, granting a new trial, unless the plaintiffs should elect to reduce their judgment to $250. The order specified no time within which such election should be made. The plaintiffs omitting to make any election, the defendant procured an order from one of the justices of the court, requiring them to make such election within three days, or in default thereof, that their complaint be dismissed. On their default so to do, an order was made dismissing their complaint.</p> <p>The defendant now moved to vacate the docket of the judgment with the county clerk.</p>

<p>Appeal from an order at special term denying an application for a mandamus.</p> <p>The case before the special term is reported Ante, 126,* where the facts will be found sufficiently stated.</p>

The facts appear in the opinion of the Court. The resolution passed by the board of aldermen and the board of councilmen of the city of Hew York, December 20th, 1864, and approved by 'the mayor the same day, was as follows: “ Resolved, That the Hudson Biver Bailroad Company be and they are hereby permitted to extend their tracks from Chambers street through College Place and Warren street to Broadway, for the use of their city cars, and to lay a side track in Hudson street…

<p>Cause of Action foe Negligence.—Charge to the Jury.</p> <p>The rule that ene injured by the negligence of another cannot recover, if his own negligence contributed to the result, discussed, and its application determined in reference to injuries sustained by-insufficient guards for horses on a ferry boat.</p> <p>The proper terms of a charge to the jury in such a case.</p>

Motion to set aside a verdict taken subject to the opinion of the court at general term. This was an action brought by Thomas B. Coddington against Messrs. Gilbert, Coe, and Johnson, bankers, under the following circumstances.

Order to show cause why an injunction should not issue. This was an application by John Thompson, of New York city, broker, for an injunction to restrain the Commissioners of the Canal Fund from making a loan of $1,250,000, for the canal enlargement, for which they had advertised to receive bids.

The plaintiff had obtained judgment on a demurrer to the complaint, and on the taxation of his costs, claimed to be entitled to three term fees, of $10 each, which the clerk, unless otherwise directed by the court, had refused to allow. The plaintiff, upon notice, applied for this direction.

Trial by the Court. The former proceedings in. this action are fully reported in 19 All. Pr., 105, where the decision at special term, upon the first trial, is given, and in 1 All. Pr., N. S., 214, where the decision at general term, reversing the former decision, is given.

Appeal to the justice at chambers from the adjustment of the costs by the clerk. A copy of the complaint in this action was served on the defendants’ attorneys, February 7,1855. The plaintiffs’ attorneys extended the time for the defendants to answer from time to time to the 30th day of May, (upon which day the answer was served), upon stipulations fixing the date of the issue, and allowing the cause to be put on the calendar.

<p>JuROKS.-WITNESSES.-QuESTIONS AS TO PREJUDICE.</p> <p>A juror challenged for principal cause on a criminal trial, on the ground of having formed or expressed an opinion of the guilt of the prisoner, may be examined by the challenging party, to prove the challenge.</p> <p>What questions are admissible on the examination of a juror challenged.</p> <p>A witness may be cross-examined as to whether he belongs to a secret society,— e. g., the order of United Americans — with a view to show that the principles and objects of such society are such, that his testimony is liable to suspicion of unfairness.</p>

This action was'brought by a wife for a separation, from bed and board, under the statute. The facts established are stated in the opinion of the court. Judgment for the plaintiff having been entered, the defendant appealed to the court at general term.

The proceedings on the appeal in this case, are reported, Ante. 109. The plaintiff now moved for a re-hearing of the appeal.

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

<p>Motion to dissolve an injunction.</p> <p>This action was brought by Archibald Watt against Platt Rogers, William Ogilvie, and Daniel H. Curtis. The complaint set forth that previous to and in the year 1839, he was the owner of thirty-one lots of ground in the city of New York ; that in 1839 he entered into an agreement with the defendant Platt Rogers, for the sale of these lots to him ; that in 1840 Rogers having become dissatisfied with the title, and desirous to rescind the purchase, the plaintiff agreed to purchase the lots in question from him for $4787.95, of which $1768.62 was paid by the plaintiff to Rogers at the time, and the balance, $3019.33, was agreed to be paid in 1845, the plaintiff giving his bond for such payment ; that the plaintiff remained in possession of the lots ; that in 1850 Rogers, in fraud of the plaintiff’s rights under the agreement, sold and conveyed the lots in question to the defendant, William Ogilvie, for $2000 ; that this was a very inadequate consideration; that Ogilvie immediately afterwards sold and conveyed seven of the lots to the defendant, Daniel H. Curtis ; that no notice of these sales and conveyances was given to the plaintiff, and no demand of possession was made upon him ; that he being in possession sold some portion of the soil of said lots, to persons who carried away the same; that in April, 1853, the defendants Ogilvie and Curtis each commenced a suit against the plaintiff in the Common Pleas for trespass in taking away said soil; that j udgments were rendered against the plaintiff in both suits, on the ground that the title acquired by the plaintiff under his agreement with Rogers could only be enforced in equity, and could not be set up as a bar in the action ; that plaintiff appealed from these judgments to the General Term ; and, that the plaintiff had always been and still was willing to perform his part of the contract between himself and Rogers. The prayer of the complaint was, that Rogers might be compelled to make specific performance of his agreement to sell and convey the lots to the plaintiff, on being paid by the plaintiff what was due under the agreement, — that the sale made by Rogers to Ogilvie might be set aside, — and that the defendants Ogilvie and Curtis might be enjoined from further proceedings to enforce the judgments recovered by them against the plaintiff.</p> <p>A temporary injunction was granted, which the defendants now moved to dissolve.</p> <p>One objection taken was, that instead of the words “ infor-ipafion and belief,” required by tbe Code in the verification of pleadings, the verification in this case contained the words “ information or belief.”</p> <p>I. A fully verified complaint may be used instead of the affidavit required by section 220 of the Code. (1 Whitt. Pr. 261, and cases cited). But this complaint is not verified as required by the Code. It is on “information or belief,” it should be in the conjunctive. {Coda § 157; Davis v. Potter, 4 IIow. Pr. II. 155). It was not sufficient to be used as an affidavit.</p> <p>II. A temporary injunction can only be granted where the relief demanded is in whole or in part a perpetual injunction. {Code, § 219; Corning v. The Troy Iron Nail Factory, 6 How Pr. P., 89; Hovey v. McCrea, 4 lb. 31 ; Voorhies' Code, 230, note).</p> <p>III. An injunction will not be granted in one suit to stay proceedings in another; the proper course is to make application in the suit sought to be stayed, for a stay of proceedings. (Diedericks v. Hoysradt, 4 How. Pr. P., 350 ; Hunt v. The Farmer’s Loan and Trust Company, 8 lb., 416 ; Grant v. Quick, 5 Sandf, 612 ; Voorhies’ Code, 229; 1 Whitt. Pr., 255).</p> <p>IY. Injunction will not be granted to stay proceedings at law, where the matters set up constitute a defence which might have been set up in the action at law. {Story's Hq. Jur., §§ 894, 895, 896; 2 White & T. Eq. Cas. {Am. Law. Lib.), 88-98; Bay v. Canning, 19 Verm. P., 496; McVickar v. Walcott, 4 Johns. 510; Duncan v. Lyon, 3 Johns. Ch., 351 ; Barker v. Elkins, 1 Lb., 465 ; Lansing v. Eddy, lb., 49 ; Smith v. Lowry, Lb., 320; Dodge v. Strong, 2 Lb., 228 ; Murray v. Graham, 6 Paige, 622 ; Perrin v. Stryker, 7 lb., 598 ; Harrison v. Davenport, 2 Barb. Ch. R., 77 ; Yilas v. Jones, Í Comst., 274; Foster v. The State Bank, 17 Ala. P., 672). The present plaintiff could have availed himself, in the actions at law, of any defence, whether legal or equitable. {Code, § 150). The grounds for the relief claimed against the defendants Ogilvie and Curtis’ judgments are, — that plaintiff had an equitable title and rightful possession, and that defendants had not title at the time of bringing suit. These facts, if true, could have been set up in defence to the actions.</p> <p>Y. It is apparent from the complaint that plaintiff is not entitled to the relief sought. 1. There is no allegation of performance or tender of performance, on the part of the plaintiff, of his agreement with the defendant Rogers. 2. More than ten years have elapsed since the claim accrued, and it is barred by the Statute of Limitations then in force, (2 Rev. Stats. 2 ed., 229, § 52), under which actions of equitable cognizance were barred at the lapse of ten years.</p> <p>I. The objection to the verification of the complaint may be cured by substituting “ and ” for “ or.”</p> <p>II. The complaint does not pray for a perpetual injunction, because, if the plaintiff succeeds in this action, and Rogers is decreed to perform his agreement with the plaintiff, and the conveyance from Rogers to Ogilvie is set aside, a perpetual injunction will not be needed. The court, under the prayer for further relief, will vacate the judgments.</p> <p>III. Rogers was not a party to the suits brought by Ogilvie and Curtis, against the plaintiff, and the plaintiff could not have the relief against him in those actions which he seeks in this. He did not omit to set up in those actions what he conceived to be a good defence to them, under section 150 of the Code ; viz : That neither Ogilvie nor Curtis had title to the lots, or possession of them. But the Court ruled out the defence on the ground that the plaintiff, — then defendant, — could not set up his equitable rights against Rogers, in an action brought against him by a grantee of Rogers for a trespass. The question between Rogers and the present plaintiff’, could not be tried in these actions.</p> <p>1Y. The plaintiff’s right of action only accrued on the breach by Rogers of his agreement with the plaintiff, by the sale of the lots to Ogilvie, in 1850.</p> <p>Y. The injunction shpuld be allowed to stand until the coming in of the defendant’s answer, when the Court will have the statement of each party before it. The equities of the complaint are not denied as yet.</p>

Motion to discharge a mechanic’s lien. The action was brought by William Fettrich, as. receiver, against Eichard Totten. The facts are stated in the opinion of the court.

<p>Motion "by the plaintiff to refer the cause.</p>

A commission had issued in this action for the examination of witnesses at Sandusky, Ohio. The parties had united in the commission, and the defendants now applied for a re-execution of it, on the following grounds : I. That the plaintiff, on the first execution of the commission bad appeared by counsel, without having given notice to the defendant or his attorneys of his intention to do so. II.

Motion to set aside judgment and execution. The plaintiffs in the judgment in this case were Augustus M. Leach and Horace E. Smith. The defendants were Foster J. Weeks and Freeman. The New York Commercial Association was incorporated by an act of the Legislature, passed April 19th, 1862.

<p>Attachment, and Levy on Money.</p> <p>ío attach a debt due to the defendant in the attachment, .the notice served on the debtor must specify the debt.</p> <p>A notice in general terms referring to all debts and property of the defendant is not enough to give the attaching creditor priority over subsequent proceedings of other creditors.</p>

Motion to confirm, a referee’s report. This action was brought by the plaintiff, Sarah W. Midgeley, as a creditor of the firm of Wilson Midgeley & Jennings, to compel the defendants, Thomas Slocomb and another, to account, as assignees of the firm. The action was referred to Judge Greenwood to take the account, adjust the claims of the respective creditors, and report.

<p>Motion, that this cause be removed to the United States Circuit Court for this District.</p> <p>The grounds of the motion appear in the opinion.</p>

The will of Augustus Adolphus Limburger, deceased, having been admitted to probate, Frederick Limburger, the uncle of the deceased, appealed from the decree. John H. Rauch, one of the .respondents, was the guardian of the deceased, and Catherina Rauch, the other respondent, was the wife of such guardian. The will of the testator gave all his personal estate to Mr. and Mrs. Rauch, and appointed the former his executor.

This was an action to recover for books sold and delivered to the defendant in 1851, by the firm of Mason & Law, by whom the claim was assigned to the plaintiff Dyer. On the trial in the court below, the plaintiff introduced evidence to show that the defendant, William Forest, ordered the books in question at the store of Mason & Law, for his son, a member of the firm of Forest & Borden, doing business in California.

The plaintiffs, who were creditors of defendants’ firm, sued for the appointment of a receiver, and to enjoin the defendants from making an assignment of their assets. The facts are stated in the opinion.

<p>Appeal from an order of the special term, granting a motion to vacate the transcript of a judgment.</p> <p>The decision of the special term in this case, now appealed from, is reported Ante, 23T, where the facts are stated.</p>

Motion to dissolve an injunction. This action was brought in the name of the People of the State of New York against Richard Mattier and others. The five defendants were, with others, elected in June, 1866, trustees of the New York State Inebriate Asylum.

<p>Affidavit. — Limited Paetneesiiip.</p> <p>An affidavit, to accompany a certificate of a limited partnership, (under 2 .Rev. Stais4 ed. 174, $ 7) need not follow the exact words of the statute. If it clearly establishes the facts required by the statute, it is sufficient.</p> <p>Where the affidavit refers to the certificate, it may be explained by the statements of the certificate.</p> <p>An affidavit that the special partner has “ actually paid in,” the capital contributed by him, is equivalent to an affidavit that he has paid it in “in cash.”</p>

<p>Motions and Orders.—Costs.</p> <p>The costs allowable on an order made in the county court upon denying a motion to dismiss an appeal from a justice’s court,—stated.</p> <p>An order, made by the court, must be entered accordingly, and it is irregular to disregard it because-erroneous, and to enter a different order.</p> <p>The costs upon an appeal from an order of the county court are not the costs of motion fixed by section 315 Of the Code of Procedure, but are costs of an appeal from an order fixed by section 307.</p> <p>Where, upon an appeal from an order fixing the costs, the order appears to be irregular, the court may do justice to the parties, by a new order, without requiring the matter to be again brought up.</p>

<p>Beal Estate — Be-sale.</p> <p>Under what circumstances, and on what terms, a re-sale of real property sold at a judicial sale, will be ordered.</p>

This action was brought by Oliver S. Carter and Henry E. Hawley against Theodore H. Loomis, to recover the amount of moneys alleged to have been embezzled by the defendant from the plaintiffs. The plaintiffs procured an order of arrest against the defendant upon which he was imprisoned. The plaintiffs, after the arrest, and after default on the part of the defendant, delayed for some time to enter up judgment.

This action was brought by Charles, George, and George W. Goodyear and Henry Durand, against Edwin A. Brooks, and ten other defendants.

<p>Real Estate. — Re-Sale.</p> <p>Under what circumstances, and upon what terms, a re-sale of real property sold at a judicial sale, will be ordered.</p>

<p>ATTACHMENT. —N ON-ReSIDENCE.</p> <p>A person who carries on, within the city of New York, a regular and systematized business, and who, in the course of his occupation, spends his time during the regular business hours of the business days of the week in the city, keeping his bank account there, and there in good faith conducting all his business transactions, is not a non-resident within the meaning of the attachment laws ; although his family reside in another State, and he himself spends his Sundays, or even all his nights with them.</p>

The complaint in this action, alleged that during the year 1838, the plaintiff carried on mercantile business in Great Britain, and the defendants, Samuel F. Crafts, Henry Stevens, and John Tucker, were in partnership in business in New York. That during 1838, plaintiff consigned goods to the defendants, as factors, to be sold on commission.

This was an action brought by Collover Randall and Sophia his wife, against John Raab, to recover a lot of land in Essex-street, in the city of New York. The answer set up the statute of limitations, and averred title in the defendant. The cause was tried May 19,1854, before Mitchell, J., without a jury. The following facts were admitted and found. That the premises in question were formerly owned by Peter Collyer.

Motion to dissolve injunction. This action was brought by Mrs. Emma L. Wright against Silas G. Evans. The complaint alleged that the plaintiff was owner of two lots known as Ho. 226 Madison avenue, upon the rear of which there was a house and lot fronting on Thirty-eighth street, in which plaintiff resided.

In December, 1865, the common council of the city of Hew York, by a resolution approved by the mayor, directed the comptroller of the city, the defendant in this case, to execute a lease of premises in Hassau street, belonging to Mr. Wood, the relator, for the sum of $18,000, per annum, for a term of years, for the use of officers of the city corporation.

<p>Appeal from an order at special term, denying a motion to vacate a judgment for irregularity.</p>

In 1845 a judgment was recovered against Wheaton by Williams, Dellicker, Baldwin, and Small, and was subsequently assigned to Small. Held: (for the purpose of this motion) an extinguishment of the judgment. III. The property sought to be reached by the execution is real estate which has been purchased by the defendant since his discharge, and has been by him conveyed to, and is now held by bona fido purchasers for full value.

This action was brought by the Merrimack Manufacturing-Company against Thomas Garner, Darius B. Mangara, and L. Mortimer Thorn.

The complaint in this action set forth that Couthout and Bleecker had formerly recovered a judgment against the defendant Kanouse, of which the plaintiff had become the owner, by purchase and assignment. That the defendant had since recovered a judgment against the plaintiff; which was recovered in certain suits in error in the New York Superior Court and in the Supreme Court of the United States.

Motion to make complaint more definite and certain. This action was originally commenced by Martin against Kanouse alone. The nature of the action, and the course of the earlier proceedings in it, are stated Ante, 327. After a demurrer and answer on the part of Kanouse had been put in, and judgment had been ordered for the plaintiff upon them for frivolousness, Andrew S. Garr applied to the court to be made a defendant to the action, and an order to that effect was granted.

The complaint in this action, which was verified, was as follows:— Title of the Cause. City and County of New York, ss.— John Englis, plaintiff in tliis action, by Martin, Strong and A. F. Smith, bis attorneys, complains of William H. Brown and William P. Furniss, defendants in this action, and alleges and avers— That at the several times herein mentioned, the defendants were the owners of the steamboat Rhode Island.

<p>Habeas Corpus.—Jurisdiction of State Courts.—Conflict of Laws. »</p> <p>Under the acts of Congress of February 13,1862, and March 3,1865, the oath of a soldier, on enlisting, that his age is above eighteen years, makes the enlistment binding and valid, and the officers of the government and the courts have no ptpver to discharge, in such a case, upon the ground that the soldier was under age, and had enlisted without consent of parent or guardian.</p> <p>Nor does it affect the validity of the enlistment in such a case, that the reenut was, at the time, an indentured apprentice.</p> <p>A State court has not power, upon a habeas corpus, to inquire into the validity of an enlistment in the army of the United States. Since the validity of the enlistment depends upon the construction of the acts of Congress, the application should be to the judicial tribunals of the United States.</p> <p>The case of Abelman v. Booth, 21 Sow. {TJ. S.), 506, explained and followed.</p>

This action was brought by Laura Keene against John S. Clark and another, to recover damages for the alleged unauthorized performance, under direction of the defendants, of the drama “ Our American Cousin,” and to obtain an injunction restraining the continuance of the infringement.

The affidavit of the defendant on which the motion was made, stated that he was served with the summons and complaint by the plaintiff himself; that judgment had been rendered, and execution issued and levied, &c. The defendant had not appeared in the action. The proof of service incorporated in the judgment roll, was the affidavit of the plaintiff himself. The motion wTas denied at special term, and the defendant now appealed.

This action was brought by Francis D. Fowler and De Grasse B. Fowler, against John Kennedy, Samuel Smith, and Oliver S. Halsted, Jr., to recover for stores and provisions furnished by them to the bark Griffon.

<p>Under the provision of the act of 1866 (Laws of 1866, 2056),—relating to the Croton aqueduct department in the city of Hew York, and providing that any vacancy in their number shall be filled by the members of the board remaining in office,—the vacancies referred to are those in the board, and not in the offices of the previously named engineer and assistant commissioner.</p> <p>A law providing for raising money by taxes, in one county of the state, is not to be regarded as a local statute, within the provision of the constitution requiring the object of local statutes to be expressed in the title.</p> <p>Mandamus is not the proper remedy to test a claim to the office of president of a board of public officers: the claim of the possession of the books and papers should be tried by the proceedings provided for that purpose, by statute; and the title to office should be tried by an action of quo warranto.</p> <p>A mandamus should not be issued, as a general rule, in cases where the right of the relator depends upon holding an act of the legislature unconstitutional.</p>

<p>Appeal from a judgment rendered at special term, in favor of plaintiff on demurrer to a complaint.</p>

Motion to set aside judgments in two actions. The actions were brought by Alexander S. Petrie and others, against Michael Fitzgerald.

This action was brought by the plaintiffs, a corporation established in the State of New York, against the defendants, who were a corporation formed under the laws of the State of Connecticut, to recover the value of goods destroyed in the city of New York in the defendants’ warehouse.

It appeared upon the papers that this action was brought against the defendant Bouck as surety, and the other defendants as principals, to recover rent due upon an ordinary landlord and tenant agreement. The defendant Bouck appeared separately and demurred to the complaint. The issue of law was noticed for trial by the plaintiff for September term, 1854, and each subsequent term to June, 1855, inclusive, when it was tried at special term.

Petition to have an election of directors of the Atlantic Mail Steamship Company set aside. The facts are stated in the opinion of the court.

contended that the defendant had become charged with costs in consequence of his own neglect to pay money into court, and was therefore entitled to no relief.

Demurrer to answer. This action was brought by Moses Pardo, Jr., against George A. Osgood and Cyrus Curtis, receivers of the Columbian Insurance Co., upon a policy of insurance issued by the company before it became insolvent. Upon procuring the policy, the plaintiff gave his premium note to the company. On or before the 20th of January, 1866, a loss occurred on which the plaintiff claimed $2,252, and presented proof of the loss accordingly.

<p>Appeal from a judgment for plaintiff, on a demurrer to the defendant’s answer.</p>

Motion to dismiss an appeal. Proceedings having been commenced for the extension of the Bowery, in the city of New York, from Chatham Square to Franklin Square, commissioners of estimate and assessment were appointed by the corporation, to examine and report. They reported in favor of the improvement and their report was confirmed at special term. The objectors appealed from the order confirming the report. The commissioners now moved to have the appeal dismissed?

<p>Assignment fob Benefit of Cbeditobs.—Fraudulent Intent. ■ ■</p> <p>An assignment for the benefit of creditors must substantially and fully comply with the provisions of the act of 1860.</p> <p>An assignment may be set aside if the schedule omits a part of the property, though only for the purpose of diminishing the amount of security to be required from the assignee; or if it directs a larger payment to a creditor than is actually due him,</p>

This action was brought to settle the affairs of a partnership between the parties. Issues of fact were framed, and tried before a jury; and, after their finding upon the issues, the plaintiff moved for a judgment directing an account to be taken, up to the time of trial.

<p>Application for a re-adjustment of costs.</p>

<p>Motion for a new trial.</p> <p>This action was brought by Francis P. Bowing against the defendants, who were stock' brokers, to recover damages from them -for the alleged wrongful delivery of securities in their possession belonging to him, without authority from him.</p> <p>It appeared upon the trial that the plaintiff had some disagreement with his wife; that he gave the defendants written instructions not to deliver up the securities except upon his own written order; that during his severe illness an order, purporting to be signed by him, was presented to the defendants by the plaintiff’s wife, and the securities delivered to her upon it. Medical testimony was given, showing that the defendant was at the time of the date of the order incompetent to sign such an instrument; and the plaintiff contended that the order was a forgery.</p> <p>The jury found for the plaintiff, and on their verdict judgment was entered for the value of the securities.</p> <p>The defendants now applied for a new trial upon two grounds; . first, alleging the discovery of new evidence on the question of the capacity of the plaintiff at the time referred to ; second, on thé ground that the action was not maintainable, because it was founded on a fraud committed by the plaintiff’s wife.</p>

This action, which was brought by Jonathan against Edmund Ackroyd, was for the purpose of settling the affairs of a partnership, and to have an accounting from the defendant, and payment of whatever might be found due.

Motion to set aside an order for assessment of plaintiff’s damages and for leave to answer. This was an action of assault and battery. Within twenty days after service of the summons and complaint, the defendant appeared by attorney, but made default in answering. When the time to answer had expired, the plaintiffs applied exparte and obtained an order that his damages be assessed by a jury.

Preliminary objection to a motion to vacate an order of arrest. The defendant was arrested on December 21, 1855. On December 22, he gave bail with the usual justification upon the undertaking. On December 29, the plaintiff excepted to the sufficiency of the bail. On January 8, the defendant gave notice of justification for the eighteenth of that month. On January 17, the defendant gave notice of the motion to vacate the order of arrest for the twenty-eighth of that month.

This action was brought by Stephen T. Clark against James and Erastus Brooks, for the purpose of settling a partnership alleged to have existed between the parties, who were ■ publishers of the “ ¡New York Express.” In 1864, upon application of one of the parties, the court made an order settling certain issues in the action, to be tried by a jury.

This was an action for the foreclosure of a mortgage. Judgment of foreclosure and sale having been entered, the premises were offered at public sale, and were struck off to James Rida-bock. The purchaser afterwards raised objections to the title, founded on alleged irregularities in ⅛⅞ proceedings in the action.

This action was brought by Marshall A. Mathis, administrator of John Yan Pelt, against William W. Yanderbilt. The complaint contained three counts substantially as follows. First, That defendant had received from the plaintiff’s intestate forty thousand dollars to be applied in building a steamboat, and had instead applied it to his own use ; but had after-wards promised to the plaintiff to repay the money with' interest.

Motion to dismiss an appeal. For the facts out of which this action arose, see Ante, 327,330. I.A. S. Garr being a defendant in the action, (though the plaintiff wrongfully refused to recognize and treat him as such) and being aggrieved by the order, had a right to appeal from it. (Code, § 325; Maltison v. Jones, 9 Sow. Pr. P., 152.) II. This appeal was not vitiated by Kanouse’s being joined in it pro forma. (Voorhies’ Code, 4 th ed. 513, note g.) III.

The plaintiff in this action, Charles W. Hutchinson, was a judgment creditor of the New York Central Mills, whose execution had been returned unsatisfied, whereupon he commenced this action against the corporation, its officers and sundry other persons, among them Burton D. Hurlbut.

, Appeal from an order at special term over-ruling a demurrer to a complaint. Held: that a complaint which embraces two or more causes of action in a single count is demurrable. I. The allegation that payment was duly demanded is sufficient to show a cause of action. {Code, §162; Roberts a. Morrison, 11 Ley. Ohs. 60; Gay a. Paine, 5 How. Pr. P. 107 ; Allen a. Patterson, 8 Seld. 475). II.

Motion to strike out parts of an answer, as irrelevant and redundant. This was an action for slander, brought by Yalentine L. Ormsby against Benjamin Douglass.

This action was brought by Max Maretzek, the manager of an opera in the city of Hew 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.

The plaintiff in this action having purchased a sewing-machine, the vendor gave orders to a carrier to deliver the machine to the plaintiff at his address. The .carrier by reason of losing the directions delivered the machine to defendant. The machine being out of order, defendant, who- was a machinist, paid the expressage and repaired the machine, his charges therefor being $9.25, which he insisted upon having before he gave up the machine.

<p>Judgment. — Lien ON Real Estate. — “Secubed on Appeal.”</p> <p>The sureties upon an appeal are entitled to notice of an application on the part of the appellant for an order, under section 282 of the Code, directing an entry on tho docket, that the judgment is secured on appeal.</p> <p>It is discretionary with the court to grant such an order.</p> <p>When the papers were not sufficiently full to enable the court to grant an application for such an order — ordered that the case might be referred.</p>

This action was brought by Cornelius L. Bus'mell against Smith J. Eastman and Levi Eastman: The plaintiff sued on his own behalf and on behalf of such other creditors as might come in and contribute to the expenses of the action. . The object of the action was .to set aside a conveyance or mortgage made by'the defendant, Smith J., to the defendant Levi, on allegations that it was made with an intent to delay, hinder and defraud Ids creditors.

Motion to set aside judgment for irregularity. The defendant, a resident and elector of Stephentown, in. Rensselaer county, was served with the summons and complaint in this action, by the sheriff of the county, on November 6, 1854, the day of the general election. Upon the basis of that judgment plaintiff entered judgment by default; which the defendant now moved to set aside. The motion papers were accompanied by a notice of appearance. cited Laws of 1842,109, ch. 180.

Application, for discovery. In this ease the complaint and affidavits set forth that the plaintiff, being owner of some mines in Nevada, valued at $50,000, made a deed to one Thomas F. Gould, whereby^ for •the nominal sum of one dollar, the same were conveyed, but with the understanding that Gould would proceed to New York and dispose of the same with other mines then under .his control.

<p>Appeal. — Costs.</p> <p>Where there is but one set of papers, one argument, and one judgment, there is but one appeal, and the successful party is entitled to but one bill of costs, notwithstanding that the several adverse parties appeared by different attorneys.</p>

Motion to strike out a demurrer to a complaint, as frivolous. The complaint in this action was for the foreclosure of a mortgage.

<p>JURISDICTION ON FEDERAL CoüRTS.-E.EMOYAL OF CASES FROM State Courts.</p> <p>When three aliens and one citizen of the State of New York, brought, in one of the courts of that State, a suit against a Connecticut corporation, upon a claim in which they had a united interest, — Held, at special term, that the defendants ■were not entitled under $ 12 of the Federal Judiciary Act of 1789 to have the cause removed to the United States Circuit Court.</p> <p>This decision affirmed on appeal to the general term.</p>

Motion to dissolve an injunction. The object of this action was to enjoin the defendants from building an embankment, in the construction of their road, across a pond and brook, the water of which was used by the plaintiff for milling purposes. The plaintiff was lessee, for a long term of years, of the land covered by the water ; and the railroad company had obtained the right of way over the land.

Judgment was entered in this action, which was upon tort, in March, 1850, but was afterwards vacated. The plaintiff now moved upon the sheriff’s certificate of service of summons and complaint, and the affidavit of no answer, which had been used upon the original entry of judgment in 1850, for judgment in his favor anew. His motion was denied at special term, with liberty to him to renew it upon additional papers.

Motion to vacate a judgment for irregularity. The plaintiff in this action commenced proceedings supplementary to execution, based upon the usual affidavit showing the recovery of judgment by him against the defendant in the New York Marine Court, for $162 41, the filing of a transcript, the issue of execution and the return of the same unsatisfied. As an answer to the proceedings, the defendant moved to vacate the judgment for irregularity.

This was a case made for the purpose of settling a controversy arisen between Mary O’Hara against Dever, surviving executor of the last will and. testament, of Peter O’Hara, deceased, and as administrator, with the will annexed, of Cecelia A. O’Hara, deceased, and Hannah O’Hara, sole executrix, &c., of Edward L. O’Hara, deceased.

■ This action was brought by J. Beekman Fish and S. Bayard Fish, against Charles Wood, to recover for building materials sold by them to one Franklin, to be employed in the erection of a house by Franklin for the defendant; the plaintiff claiming that Franklin made the purchase as agent of the defendant.

This case was brought by Horatio ÜT. Walton, administrator de bonis non, against Sarah P. Walton, executrix, &c., of William B. Walton, deceased. Jonathan Walton died, leaving William B. Walton bis execntor, who, after receiving assets of the estate, died, leaving the defendant his executrix. The plaintiff was appointed administrator, de bonis non, of the unadministered assets of Jonathan, the first decedent.

Demurrer to a complaint. This was an action of slander brought by William R. For-syth against John Edmiston and James Edmiston. The complaint stated three causes of action.

This judgment was rendered in favor of David S. Mills against John S. Thursby, and was founded on a judgment recovered by Mills against John Thursby in his life time.* The defendants appealed.

<p>Motion to discharge the defendant from arrest.</p>

<p>Motion to discharge the defendant from arrest.</p>

This action was brought by Horace B. Claflin and others, against Butterly and Devin. On the trial a verdict was taken in favor of plaintiffs, subject to the opinion of the court at general term.

<p>COMPETENCY OF ASSIGNOR.-SECONDARY EVIDENCE.</p> <p>One who has made an absolute assignment of a claim, may be called as a witness for his assignee in a suit upon the claim, notwithstanding that the assignment contains a covenant that a specified sum is due upon it.</p> <p>Of liquidated damages, as compared with a penalty.</p> <p>What evidence of the loss of papers, is sufficient to admit secondary evidence of their contents.</p>

Demurrer to a complaint. This action was brought by Kirk, Captain of the Guard of Liberty, on behalf of the members of the company. The defendant demurred to the complaint for defect of parties plaintiff.

<p>Motion to vacate judgment for irregularity, or for leave to defend upon the merits.</p>

This action was brought to recover damages for injuries sustained by a horse belonging to the plaintiff, by reason of the negligence of the defendant’s servant in managing and driving a stage owned by her.

<p>SUPPLEMENTARY PROCEEDINGS.-ASSIGNEE OF JUDGMENT.Second Examination.</p> <p>The assignee of a judgment may institute supplementary proceedings under the Code, although the party applying became the assignee of the judgment after the execution was returned unsatisfied.</p> <p>After an examination of judgment debtor on supplementary proceedings, had before a referee, has been once completed and closed, it cannot be re-opened except upon special order for that purpose.</p> <p>After a judgment creditor has had one complete examination of his debtor, he cannot institute a new examination as if it were the first, but must apply on notice and affidavits showing a special reason why a new examination should be had, for an order for that purpose.</p>

Motion to dissolve an inj unction. This action was brought by George W. Matsell and. William. Mackellar against P. J. Flanagan and — Finch, composing the firm of Flahagan & Finch, William D. Bancker, Thomas W. Timpson, Samuel Yates ;—Dickerson and John Doe, composing the firm of Dickerson & Co., Philip Dwyer, Wm. Simpson, and — Sharp.

<p>Costs. — Delay.</p> <p>What amounts to laches, in bringing on a motion for a readjustment of costs.</p> <p>The provision of 2 Rev. Stats., 617, $ 26, that where there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on the issues found for him, and the defendant on those found in his favor, is not abrogated by the Code.</p>

<p>Application to compel a witness examined upon supplementary proceedings to answer a question propounded.</p>

Motion that defendants be required to make their answer more definite and certain. This action was brought by the plaintiff, Eleanor Corbin, as executrix of Timothy Corbin, deceased, against John and Alfred George, to recover the amount due on a contract for the sale of real estate, made by the deceased with the defendants. The answer contained four defences.

I.—October, 1864. Appeal from a judgment. The complaint in this action, which was brought by Mary H. Pennell against Edwin Wilson, alleged the entering into an agreement, on July 1,1863, between the plaintiff and defendant, for the sale and purchase of a house and lot of land in this city ; that the agreement provided for the payment of §4,060, part of the purchase, on the first day of November, 1863, when the deed was to be delivered; that it was further agreed between the…

This was an action for assault and battery and false imprisonment, brought by George Blythe against Aaron J. Tompkins. It was tried before Justice Balcom, at the Tompkins circuit, in February, 1856. The jury found a verdict for the plaintiff for $20 damages, and it was thereupon ordered that the cause be reserved for further consideration pursuant to section 264 of the Code.

<p>Supplementary PkoceediNgs. — AppointmeNT oe Receivee.</p> <p>On application for the appointment of a receiver upon proceedings supplementary to execution, the judgment debtor cannot object to the appointment on the ground that the examination has not shown him to be the owner of any property.</p>

<p>Complaint. — CoüNts.</p> <p>It is no longer proper for a plaintiff to set out one and the same cause of action in several counts.*</p>

<p>Motion to discharge a defendant from arrest.</p>

<p>Leave to answee. — Ubury.</p> <p>The fact that an answer regularly served sets up the defence of usury, is no reason why the court should refuse the defendant leave to amend it in matters independent of that defence.</p>

Motion to confirm report of referee. _ This was an action for a limited divorce, on the ground of cruelty and desertion. The complaint of the plaintiff alleged that since the 17th of Decemher, 1864, the defendant, her husband, deserted her..