Volume 2 — Bosworth's New York Superior Court Reports

Justice Slosson, granting an injunction to restrain the defendant, pendente lite, from selling, disposing of, or advertising, or offering for sale, any soap (not. manufactured by the plaintiffs) put up in boxes, wrappers, or labels, in a form and style, alleged in the bill of complaint, to be a fraudulent imitation of the boxes, wrappers, labels, etc., used by the plaintiffs, to designate their own manufacture.

Appeals from a judgment rendered at Special Term in April, 1854, on trial before Mr. Justice Hoffman. The two actions were in the nature of cross actions, involving the same questions and affecting, in the principles involved, the same parties; and by stipulation they were tried together, and the same proofs used, and one judgment pronounced in both.

This action was tried in October, 1856, before Mr. Justice Duer and a jury. It was commenced by the United States Trust Company of Hew York, as Receiver of the Empire City Bank, against Dennis Harris, as maker of a note for $10,122.50, dated October 31,1854, payable 60 days after its date, to the defendant’s order, and by him indorsed.

This action comes before the Court, at General Term, on an appeal by the defendants from an order granting a new trial, in respect to the question of damages, on terms, and also from the judgment entered on a verdict in favor of the plaintiff. It was tried in June, 1855, before Mr. Justice Bosworth and a jury. The plaintiff is a married woman.

This action comes before the Court, at General Term, on a verdict ordered to be taken in favor of the plaintiff, for the amount of his claim, subject to the opinion of the Court on a case to be made, and directed, at the trial, to be heard in the first instance at the General Term. It was tried in December, 1855, before Ch. J. Oakley, and a jury. The action was commenced against the - Union Bank, as defendant.

This action comes before the Court at General Term, on an appeal by the plaintiffs, from an order made by Mr. Justice Hoffman, on the 8th of January, 1857, sustaining a demurrer interposed by the Atlantic Mutual Insurance Company, to their complaint, and directing judgment to be entered in favor of the defendants so demurring, with liberty to the plaintiffs to amend their complaint, within twenty days after notice of such order.

<p>When the Bond of Submission, by which the parties thereto submit the matters in difference between them to the decision of arbitrators, provides that the award must be in writing, and ready to be delivered on or before the 1st of January, 1848, and the time for the delivery of the award is extended by successive agreements, in writing, signed and sealed by the parties, the last of which is dated the 1st of June, 1860, and by it, it is agreed that “ the time for the parties to close their arguments, on the arbitration under the annexed bond, is hereby extended to the 12th day of June instant; and the time for the arbitrators to make and deliver their award, on said bond, is hereby extended to the first Monday of July next.” At a meeting of the arbitrators, on the Tth of June, it was agreed, by the respective parties, that both parties should close their arguments on the 14th of June; and the counsel for the defendant, one of said parties, summed up on the said 14th of June, and the arbitrators adjourned until the 19th of’said June, and then heard the counsel for the other party snm up, against the objection of the defendant thereto, made at the time. Held, that the arbitrators exceeded their powers, and that their award was void, for that cause.</p> <p>The agreement of the parties, as to the time within which the arguments were to be closed, prescribed a limit to the powers of the arbitrators in that respect, and by hearing the argument on the 19th of June, they transcended their authority, and their award is void, however just it may be in principle. One of the arbitrators is a competent witness to impeach his award, by giving testimony of facts, they being open, and having transpired in the presence of the parties, and of their counsel.</p> <p>A complaint, upon an award, which directs one party to pay to the other a sum named, on demand, and provides, that on payment by the one of that sum, and the receipt of it by the other; each shall execute and deliver to the other a re-</p> <p>lease, in full, of all claims and demands, from the beginning of the world to the date of the submission, unless it avers the delivery, or tender of such a release, by the party to whom the sum is awarded to be paid, or an oifer to deliver the same, on payment of the sum so awarded, does not state facts sufficient to constitute a cause of action, notwithstanding it avers a demand of payment, and a neglect and refusal by the defendant to pay the sum awarded.</p> <p>This objection can be taken on an appeal from the judgment, although it was not taken at the trial; and although the allegations of a demand of payment, and of the neglect and refusal to pay, are not controverted by the answer.</p>

This action comes before the General Term, on an appeal by the plaintiff from a judgment rendered by Mr. Justice Duer, on the 31st of January, 1857, in favor of the defendant, on a demurrer interposed by him to the plaintiff’s complaint.

This action comes before the Court at General Term, on an appeal by the plaintiff from a judgment in favor of the defendants. It was brought to recover damages sustained by the plaintiff, while a passenger on the cars of the defendants, from a collision between the train on which he was riding and a freight train belonging to the N. Y. & New Haven Railroad Company. It was tried in June, 1856, before Judge Woodruff and a jury.

This action comes before the General Term, on a verdict for the plaintiff, taken, subject to the opinion of the Court on questions of law directed to be heard at the General Term, in the first instance.

This action is brought by John and Alfred Schermerhorn, and Maria Graven, by her next friend, against William Niblo, to compel a specific performance by him of his contract with them, of the date of the 19th of February, 1856, to purchase of them a house and lot in West 24th street, in the City of New York. It was defended on the ground, mainly, that he was not bound to accept such a title as the plaintiffs tendered, and were able to give.

This action comes before the Court at General Term, on an appeal, taken by the defendants, from a judgment entered, on the decision of a referee, in favor of the plaintiff, for $3,121.05. The action is brought to recover the alleged contract price of certain parcels of cutlery, sold by the plaintiffs to the defendants, about the 8th of April, 1856.

.This action comes before the Court at General Term, on an appeal by the defendants from a judgment entered against them on the report of a referee.

This action comes before the Court, on a verdict taken subject to its opinion at General Term, with power to the Court to render a judgment for such amount as it may deem the plaintiff entitled to, or to set aside the verdict, and order a dismissal of the complaint, or a judgment for the defendant. Either party to be at liberty to turn the case into a bill of exceptions.

The Atlantic Mutual Insurance Company are the plaintiffs in this action, and William H. Bird and John Neilson.are the defendants.

This action comes before the Court, upon appeals taken by the defendants, Joseph Naylor and Peter Naylor, separately, from the judgment which was rendered on a trial of the action before Hoffman, J., without a jury. It was commenced about the 27th of July, 1855, and brought to trial in Febuary, 1856. It was brought by Henry Doolittle, as plaintiff, against Joseph Naylor, Abraham W. Grallier, Charles A. Coe, Henry Bradley, William H. Burroughs and Peter Naylor, as defendants.

This cause was tried before Mr. Justice Slosson and a jury, and comes before the Court, upon an application for a new trial, on a case made. The learned Judge refused to permit the counsel of the defendant to go to the jury, upon certain questions of fact, holding, that there were none which it was their province to determine; and directed a verdict to be given for the plaintiff, which was accordingly rendered.

This case is brought before the Court, on an appeal by the defendant from a judgment entered in favor of the plaintiff, upon the decision of a referee. The plaintiff, an architect by profession, entered into a contract with the defendant, to furnish him with plans, sections, elevations and specifications, with a general estimate of the expense of erecting ; and to superintend the erection of, a new dwelling, about to be built by the defendant, in Lexington Avenue.

This action comes before the Court, at General Term, on an appeal by the plaintiff from parts of a judgment entered on the 8th of May, 1857. Held: “ that the amount of $796.50, charged against the defendant, for the depreciation of value by lapse of time, from the 1st May, 1853, to the 18th of June, 1856, was improperly allowed, upon the ground, that the defendant had already been charged with the full amount of the fair yearly value of the premises, which furnished a…

This action is brought by the plaintiffs, as endorsees of a promissory note, for $1000, dated Nov. 5, 1855, at 6 months. Held: as security, certain Texas scrip, and a promissory note, made by one Walter Mead, then past due.

The plaintiff, by her complaint, alleges a sale on the 18th of July, 1854, to herself, by the defendant, of sundry household furniture and chattels, for the price,of $5425, and the execution and delivery by the plaintiff to the defendant .of certain promissory notes, and a mortgage to secure the payment of the purchase money. That the plaintiff has paid upon the said notes and mortgage the sum of $2580.

Henby Sheldon, George E. Byxbie, William Heiiry Sheldon and Levi Ohesnutwood are the plaintiffs in this action, and Fernando Wood is the defendant. It comes before the Court, at General Term, on an appeal taken by the defendant, from the judgment therein, which was entered on the report of referees, to whom it was referred, to hear and determine the same. The plaintiffs herein sue as assignees of Edward E. Marvine.

These two actions are reported together, as they were argued upon the understanding, although heard at different General Terms, that all the Judges who heard the arguments would confer with each other, before deciding either of them. They did so confer, and both actions were decided at the same time.

This is an appeal by the defendant, Maxwell, from an order made at Special Term, November 10, 1856, overruling his demurrer to the plaintiff’s complaint. The complaint states, that “ the plaintiff heretofore, and on or about the 26th day of February, 1856, was employed as auctioneer, by Messrs.

The complaint alleges, that on or before the 20th of October, 1854, the plaintiff Newell and the defendant were partners in business, and as such, had divers assets; and that on that day, the defendant, for value received, sold and assigned to the plaintiffs, jointly, “ all his interest in each and every of said assets, and in all the partnership property; and among said assets, so sold and conveyed, was an account and demand against the firm of Blood-good & Bouse, for the…

This case comes before the Court, on a verdict taken for the plaintiff, valuing the property in question at the sum of $200, subject to the opinion of the Court at General Term, with liberty to the Court to enter judgment of dismissal, and with liberty to either party to turn the case into a bill of exceptions. The cause was tried in May, 1854, before the late Chief-Justice Oakley, and a jury.

This action comes before the Court, at General Term, on appeal by the defendants from a judgment entered against them on the report of a referee.

This is an appeal by the defendants, from a judgment, entered on the verdict of a jury, in favor of the plaintiffs, for $1187.73. The action was tried in May, 1856, before Mr. Justice Slosson and a jury. Daniel Qwen and Jeremiah Gr. Lugar, the plaintiffs, as partners, owned and run a line of stage omnibuses through the Tenth Avenue, in New York City, in which avenue the track of the road of The Hudson River Railroad Company, (the defendants,) is laid.

This is an appeal, by the plaintiff, from a judgment dismissing his complaint, ordered at the trial, which was had in March,. 1856, before Chief-Justice, Oakley and a jury. This action is brought by the plaintiff, as a member of the Knickerbocker Building Association, to recover from, it the moneys he had contributed to it, on the theory, that he had ceased to be a member, under circumstances that entitled him to recover the moneys he had paid in, as a member.

This is an appeal by the defendant, from a judgment entered in favor of the plaintiff, on the report of a referee.

The President, Directors and Company of the State Bank at New Brunswick, in the State of New Jersey, are the plaintiffs in this action, and Samuel Mettler, J. Spaulding Reynolds and William F. Mettler are the defendants. It now comes before the Court, at General Term, on an appeal by the plaintiffs, from a judgment, in favor of the defendants, entered on the report of a referee, to whom it had been referred to hear and decide it.

This is an appeal, by the plaintiffs, from an order denying a motion for an injunction pendente lite, as prayed for in their complaint. Held: and upon the pledge -and security of the same, and 316 other ceroons of quina or bark,” 24 of which are parcel of the 1539 in question. “ That, at the time of said application, said defendants were informed by said Mosquera & Co., and they believed, and they now state on information and belief, according to the fact, that said…

This action came before the Court, upon an appeal, by the defendant, from an order made at Special Term, before Mr.- Justice Slosson, overruling a demurrer to the plaintiff’s amended complaint.

This action comes before the Court at General Term, upon questions of law, arising at the trial, which were there ordered to be heard, in the first instance, at the General Term. The cause was tried on the 17th and 18th day of December, 1856, and, at the close of the plaintiffs testimony, the complaint was dismissed.

<p>1. When a mechanic, in the course of his business, makes repairs, upon an agreement to give credit for a stipulated time, he has no lien upon the article so repaired for the value of such repairs. If the person, for whom they are made, becomes insolvent, before the article, so repaired, goes out of the possession of the mechanic, the latter cannot assert a lien on account of such intervening insolvency.</p> <p>2. There .is a marked difference, in some respects, between the right of stoppage, in transitu, and that of a mechanic to detain. Insolvency alone creates the former. The common-law right of a mechanic to detain, arises and exists, as 'well, against a solvent as an insolvent employer. Neither the solvency nor the insolvency of the latter can be deemed an element in the creation of the right of lien which exists in favor of the mechanic.</p> <p>3. When a defendant, before answering, serves an offer that the plaintiffs may take judgment, for a sum named with costs, which offer is not accepted, and subsequently puts in an answer which not only controverts the amount due, upon the plaintiffs’ cause of action, but sets up a counter-claim, and the plaintiffs recover the precise sum offered and a judgment that the defendant is entitled to nothing upon his counter-claim, they recover a more favorable judgment than that offered, and' the. defendant is not entitled to costs, as a matter of right, from the time of such offer.</p>

In this action William T. Hooker, as President of the Continental Bank, is plaintiff, and Joseph F. Franklin is defendant. It comes before the Court at General Term, on an appeal by the defendant from a judgment entered on the report of John L. Mason, referee. It was commenced on the 22d of April, 1857.

A verdict was taken for the plaintiffs in this action, and an order was made at the trial, that the entry of judgment be suspended, and that the questions of law, presented by the defendants’ exceptions, should be heard at the General Term in the first instance, and judgment be there applied for.

This action comes before the Court by appeal from a judgment for the plaintiff, ordered on the trial of the action at Special Term, before Mr. Justice Hoffman, without a jury.

This is an appeal by the plaintiff, from a judgment for the defendant, ordered by Mr. Justice Hoffman, at Special Term, on demurrer to the complaint, on the ground, that it did not state facts sufficient to constitute a cause of action. In January, 1835, George Rapelje conveyed certain lots of ground to William A. Burtis, and, to secure to Rapelje the payment of a part of the purchase-money, Burtis and his wife, at the same time, mortgaged to him the premises conveyed.

This action comes before the Court on an appeal from a judgment for the defendant, ordered at the trial, dismissing the plaintiff’s complaint, and awarding to the defendant… Held: that the words themselves did not warrant the inference of malice in the defendant. The plaintiff claimed the right to go to the jury upon the words themselves, and insisted upon his right to do so, and to ask the jury to infer from them, that the defendant was actuated by malice in the speaking.

<p>J. B. was the owner of several contiguous lots, fronting on a public street, running to the corner formed thereby with an intersecting street, and, also, of the contiguous lots in the rear, fronting on the cross street; and for 40 years prior to his death, he had used an alley-way, running from such cross street, along the rear of the first-named lots, as a means of access and egress from and to the rear of such lots, upon the rear of one of which was a small house, let from time to time, to various tenants, who used the alley-way.</p> <p>After the death of J. B. the premises continued to be so used for several years, and one of the lots was leased, by the heirs, for five years, and was described in the lease, as hounded northerly, in the rear, by an alley for the use of this lot in common with the lot adjoining This lease, by assignment, came to the plaintiff. Afterwards, during the term of the lease, partition was voluntarily made by such heirs, and in conveying the said lot to the one to whom it was allotted, it was described in the deed, as “ running to the southerly side of the alleyway, and thence southeasterly, along the said alley-way, 21 feet 10 inches,” and it was conveyed, “together with all and singular the appurtenances,” etc. The lot was thereafter, before the expiration of the lease, conveyed in the same termg by such grantee, to the plaintiff, the tenant in possession.</p> <p>After the expiration of the lease, the defendant, a grantee of other of the heirs, closed the alley by an erection on the line of the cross street.</p> <p>Held, in an action to compel the removal of the obstruction, and for damages,</p> <p>1. Ho easement was created, during the life of J. B., which would pass to the grantee of one of the lots by mere force of the word “ appurtenances” in the deed from the heirs-at-law, so as to give such grantee a right to use the alleyway. Ho one can be said to have an easement in his own land, and no right of way could exist, as such, so long as the title to the alley and the contiguous lots, was vested in fee in the same person.</p> <p>2. The conveyance made on the partition of the lots, describing one of them as running to the alley, and running along the alley, in connection with the actual use of such alley at that time, and for many years before, as a way of ingress and egress from and to such lot, are sufficient to show an intent to create the easement, and to confer the right of way on the grantee, who thereby acquires an easement in the alley, which, in turn, passes to his grantee.</p> <p>8. Where a lot is conveyed which has a front bounding on a public street, the grantee does not take “ a right of way by necessity,” through an alley lying at the rear of the lot, although there be on such rear a dwelling house, and the grantor has, for forty years, used the alley as a way of ingress and egress for his tenants in such house.</p>

This action comes before the Court on two appeals taken by the plaintiff, one being from an order denying a motion made by him for a new trial, and the other being from a judgment, upon an order, dismissing his complaint, made at the trial. It was tried on the 22d of June, 1857, before Mr. Justice Woodruff and a jury.

<p>1. Where a lessee covenants, in the lease executed to him, for a particular use of the demised premises, equity -will restrict him to that use by injunction.</p> <p>2. Where the use sought to be enjoined, violates not only the covenant of the lessee, but the sanctity of the Sabbath, the interposition of the Court by injunction is eminently proper.</p> <p>3. Where, by the terms, of the lease, it cannot be assigned without the written consent of the lessors, and it is assigned by virtue of the written consent of a person professing to act as their agent; and as a consideration of obtaining such consent, the assignees covenant to make such use of the premises as their assignor had covenanted to make, and they enter upon the premises and occupy them solely by virtue of such consent and assignment; they cannot, in a suit brought by the lessors against them to restrain them from using the premises for purposes other than those specified in their covenant, compel the lessors to prove that their professed agent was, in fact, such agent, having the powers which he assumed to exercise.</p> <p>4. A suit by such lessors, to enforce the contract, is, as between them and such assignees, a ratification and adoption of the acts of such agent, and in such a case, sufficient evidence of his authority.</p> <p>6. In such an action, the defendants cannot show as against their landlords, that the latter have no beneficial interest or estate in the demised premises.</p> <p>6. It is no defence to such an action, that the use covenanted not to be made, and which the defendants are making, in violation of their covenant, is not a public or private nuisance; nor that such prohibited use will not deteriorate the premises in value; nor that the lessees have expended large sums with a view to such prohibited use, which they will lose if not permitted to violate their covenant.</p> <p>1. A declaration of the agent, that his principals would not enforce such covenant, if no disorderly or improper conduct was permitted on the premises, is no defence to an action to enforce the covenant.</p>

This action is brought upon a judgment recovered in the Superior Court of the County of Suffolk, State of Massachusetts, on the 18th February, 1856, for $293 79/100.

This action comes before the General Term upon a general verdict for the plaintiff, taken, as the case states, “subject to the opinion of the Courtaccompanied by the answers of the jury to specific questions submitted to them. The action was tried on the 11th day of February, 1857, before Mr. Justice Slosson and a jury. Fo question arose on the pleadings, except the question of variance.

This action comes before the Court, on appeal from a judgment for the plaintiff, on the report of a referee. Held: as matter of law, that the plaintiff was entitled to recover, notwithstanding his dealing with Edgerton & Co., and reported in favor of the plaintiff, that he recover $333.50, with interest from October 13th, 1853. The defendants appealed.

This action comes before the Court on an appeal by the defendant, Wicker, from a judgment entered on the verdict of a jury in favor of the plaintiff. It was tried in June, 1857, before Mr. Justice Woodruff and a jury. Jacob D. Woodruff is the plaintiff, and James C. Wicker and William P. Sackett are the defendants. The defendant Wicker alone answered the complaint. Fo questions arose upon the pleadings.

This case came before the Court, in General Term, on appeal from an order modifying an injunction.

This was an appeal, by the plaintiffs, from an order, requiring the plaintiffs to produce accounts and papers, to enable the defendants to prepare their answer to the plaintiffs’ complaint.

Appeal by the defendant, Smith, from a judgment entered on the 11th of August, 1857, and from an order amending the same, of the 16th of November, 1857. The alleged irregularities and errors on which the application was made below, are sufficiently stated in the opinion.

Motion to strike out parts of the defendant’s answer, or to make the answer more definite and certain. The alleged defects in the answer sufficiently appear in the opinion.

Demurrer to complaint. The action is brought upon a bond given by the defendants to procure the discharge of a vessel from an attachment, issued under title 8, of chapter 8, of part 3, of the Revised Statutes.

What questions maybe reviewed on appeal from a judgment: Whether the Court have power to extend the time to appeal: How far a notice of appeal may be amended: Effect of arguing, on appeal from a judgment, points which can . only be properly considered on appeal from an order denying a new trial. Heard in Special Term before Woodruff, J. Heard in General Term before Bosworth, Hoffman, Slosson,

An application was made, in this case, by the plaintiffs for an injunction to restrain the defendants from cutting away a narrow strip of six inches in width from the front wall of the plaintiffs’ house, and extending from the ground to the top of the wall, and from extending the front of a store, in progress of erection, over and in the place of the six inches so cut away; so that the apparent width of the front of the plaintiffs’ building would be six inches less, and the…

This case comes before the Court at General Term, on an appeal by the defendants, Maher and McCarty, from an order made by Mr. Justice Hoffman, on the 24th of September, 1858, substi-. tuting the “ East River Bank” as plaintiff in the action, instead of “ David Banks, Receiver, of the East River Bank.” The appellants are sued as second indorsers of a promissory note.

This action, came before the General Term by appeal from an order, overruling the plaintiffs’ demurrer to the “ fifth separate defence,” contained in the defendants’ answer.

An order was made under section 179 of the Code, by which the Sheriff was required to arrest the defendant, and hold him to bail. On being arrested, he executed an undertaking, with two sureties, in the prescribed form. The sureties were excepted to, and notice was given that they would justify. They appeared at the time and place named, and were examined. From their examination, it appeared that they were practising attorneys and counsellors of the court.