Volume 2 — Daly's New York Common Pleas Reports

This was a demurrer to the complaint, on the ground that it did not state fact's sufficient to constitute a cause of action. The plaintiffs are a corporation of which the defendant is a member, and is, as its name imports, an association of master stevedores.

This was an action brought to restrain the defendants, who compose the Croton Aqueduct Board, from stopping the supply of Croton water to a building owned by the plaintiff. The plaintiff moved for a preliminary injunction, the grounds of the motion appearing in the opinion of the court.

The petitioner, Andriot, having been convicted, under the act to abolish imprisonment for debt or to punish fraudulent debtors, of disposing of his property with intent to defraud his creditor, and committed to prison, presented his petition to be discharged from imprisonment upon making an assignment of all his property under the sixteenth section of the act. All the material facts will be found in the opinion denying the application.

Appeal by the defendants from a judgment of the First District Court. The action was brought by plaintiffs who were brokers, to recover brokerage for affecting a sale of twenty thousand pounds of copper to arrive, at the request, and on the employment of the defendants. By the terms of the brokers’ note of sale, the copper was to arrive during the month in which the sale was made.

r Appeal by the defendant from an order denying a motion to set aside an execution, issued herein, for irregularity. On the 2d day of December, 1865, the plaintiff recovered, and duly docketed in the office of the county clerk, a judgment against the defendant, in the First District Court, for $61.85, and on the same day an execution was issued for the amount of said judgment to the sheriff of the county of New York, signed by the attorney for the plaintiff.

This was an appeal from a judgment entered on the report of a referee. The action was brought by the plaintiff as a judgment creditor of the defendants Many and Lewis, to have a sale made by them to the defendant Phillips set aside, as having been made with intent to hinder, delay, and defraud creditors. The case was referred to Lewis B. Woodruff, Esq., as sole referee, to hear and determine.

Appeal by one of two defendants from an order made at special term, denying a motion to open a default, and set aside plaintiff’s proceedings, except on conditions. The action was brought for violation of trade mark.

order directing a purchaser at a foreclosure sale to complete the purchase, and from an order directing that an attachment for contempt issue against him for refusal to obey, bailable in the sum of ten thousand dollars. This action was brought for the foreclosure of a mortgage in which a judgment of sale was rendered for the plaintiff,, from which the defendant Bleakie appealed, without, however,, giving the undertaking, required by law, to stay proceedings.

Appeal by the defendants from a judgment of the Marine Court at general term. The plaintiff, owning seven barrels of cider brandy, sent them to one Melick, a commission merchant, to be sold. One Yan Dyke called on Melick about the 10th of October, and inquired if he had any cider brandy for sale, and took samples ; said he was buying for the defendants, and asked if Melick knew them.

<p>Appeal by the defendant from a judgment entered on the verdict of a jury at trial term.</p> <p>The action was brought upon an undertaking to pay all costs and damages which might be awarded upon appeal from a judgment of the Marine Court to the general term of that court.</p> <p>The complaint alleged, among other things, that on the 31st -day of December, 1865, the defendants made and executed their certain undertaking in writing.</p> <p>On the trial, after the jury was empaneled, the defendant’s counsel moved to dismiss the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action, in that it failed to allege a delivery of the undertaking. The court denied the motion. It was subsequently proved that the undertaking was filed with the clerk of the Marine Court.</p> <p>The only evidence of the affirmance of the judgment appealed -from, to secure which the undertaking in question was given, was a certified copy of the order of affirmance. The motion to dismiss was renewed, which was denied, and the judge sent the case to the jury, who rendered a verdict for the plaintiff. The defendants appealed.</p>

' The defendant was a member of the Metropolitan Police force, and being arrested upon a civil process while not upon actual duty, moved to vacate the order of arrest on the ground that by the amendment of the Police Act, adopted in 1864, he was absolutely exempted from arrest. The motion was denied,, and the defendant appealed.

Appeal by the defendant from a judgment of the Fourth District Court. This action was brought against the defendant as one of the sureties on an attachment bond given by one John B. Fuller, for his appearance. Fuller was a judgment debtor, and having .failed to appear and make discovery concerning his property, as required by an order of Justice Leonard of the Supreme Court, an attachment was issued against him for the contempt committed.

Appeal by the defendant from a judgment at trial term, and from an order denying a motion for a new trial. The action was brought to recover $250 damages for injuries to plaintiff’s horse, cart and harness, caused by a collision from the careless and negligent running of one of defendants’ dummy engines over their road in Hudson street, near Harrison, on or about the 3d of September, 1864.

Appeal by the defendant from a judgment of the Eighth District Court. The facts are fully stated in the opinion of the COlU’t.

Appeal by the defendants from a judgment of the Marine Court. The action was for rent of premises 114 Chambers street, leased by the plaintiff, as administrator, to the defendants for one year from the first day of May, 1862, at an annual rent of §1,800, payable quarterly.

Appeal by the plaintiff allowing a demurrer to the complaint. The complaint alleged and the demurrer admitted: 1. That the Broadway Bank, the assignor of the plaintiff was, on the 26th December, 1860, by the city chamberlain, appointed depositary of moneys belonging to the city and county of Kew'York, and notice thereof given to the defendant. 2.

Appeal by the plaintiff from a judgment of the Fourth District Court. The facts, so far as they concern the grounds of the appeal, are stated in the opinion of the court.

<p>The object of the Mechanics’ LienLawisto protect the mechanic, laborer and material man, and as between these persons and the owner, the equities of the former are superior to the latter, unless the. latter’s equities arise out of his contract with the contractor, aifecting the right of the contractor to recover the contract price, or the amount that may be due him.</p> <p>The Mechanics’ Lien Laws, and especially the provision (Laws of 1863, chap. 600, § 13) declaring that no transfer of the contractor’s interest should affect the right of any person entitled to file liens, operate as equitable transfers to a lienor of the money due to the contractor by the owner at the time of the filing his lien, against which nothing should prevail except that which should spring out of the contract itself, such as omissions from, or violations of, its obligations, affecting its performance, and consequently the amount due to the contractor.</p> <p>Hence, where the owner retained, out of the sum due to the contractor, an amount to be held by her, as security, for a claim for damages in a suit pending between them in a matter having no reference to the contract for building, as to which a lien was filed by a sub-contractor: Held, that such retention must be regarded as a transfer, within the spirit of the provision of the act of 1863, which the contractor had no right to make, and which cannot destroy the equitable assignment of the fund due to the contractor, created by operation of the statute.</p> <p>The right of the owner to set off a demand against the contractor, in an action by a sub-contractor to foreclose a mechanic’s lien, discussed.</p>

<p>The plaintiff, who was a guest at the defendants’ hotel, on the eve of his departure therefrom, surrendered his room, and at the same time requested the defendant’s clerk to take charge of his valise during a short absence from the city, when he would return and pay his bill. The valise was taken charge of, and a brass return check was given therefor to the plaintiff. On the plaintiff’s return, several days afterward, he registered his name, and was assigned a room, intending to remain some days. On calling for his valise, and presenting the return check, it was ascertained that the only valise in the baggage room, bearing the number of the plaintiff’s check, was not thy plaintiff’s valise, which could not be found. Held, that whether regarded as an ordinary bailment, or as property in the defendants’ hands, which they had a right to detain until the lien upon it was discharged, the defendants were bound to the exercise of ordinary care and diligence; and the burden was upon the defendants to show the circumstances of the loss. In default of any such affimative proof by the defendants, the presumption will arise that the defendants were guilty of negligence.</p>

Appeal by defendants from a judgment of the Marine Court at general term. The action was brought to recover damages which eight boxes of paper hangings had sustained while in the possession of the defendants as common carriers. The defendants’ steamer reached New York Thursday evening, and the goods were discharged on Friday.

Appeal by the defendants from a judgment of the Seventh District Court. The action was brought for rent for the month of June, 1866, of certain premises, which had been hired by Mrs. Dusenbury, in the absence of her husband and without his authority, from the plaintiffs, for one year from May 1, 1866, on which day she went into possession.

<p>A copartnership agreement provided that either partner might dissolve and close np the copartnership, upon the failure of the other partner to contribute his proportion of the capital. Held, that this clause, in the event of such failure, conferred sufficient authority upon the first partner to execute a general assignment of the firm’s property, for the-benefit of creditors, especially where there is evidence that the delinquent partner knew of, and consented to, the assignment.</p> <p>A sale upon credit of part of their property by an insolvent firm is a circumstance which may be considered, with others, as bearing upon the question of a fraudulent intent, but alone does not necessarily establish it. And where it appears that the property was sold upon a usual credit, to a responsible person for its reasonable value, and that the debts preferred by the assignment 'subsequently made, were honestly owing, and nothing appears but that there was other property of the insolvents not covered by the sale, the court will not overrule the finding of the referee, that the sale and assignment had not been made with intent to hinder, delay, or defraud creditors.</p>

<p>Appeal "by the defendant from an order vacating an order for the examination of the plaintiff as a judgment debtor on proceedings supplementary to execution.</p> <p>On the 20th day of February, 1861, the plaintiff petitioned, under the Two-third Act, for his discharge as an insolvent debtor. In March of the same year, in a suit pending at the time of the petition, the plaintiff suffered a default, and the defendant dismissed the complaint, and entered a judgment against the plaintiff for $110 costs. In the following November, the plaintiff was discharged from his debts. The defendant procured an order for the examination of the plaintiff on supplementary proceedings, which the plaintiff moved to vacate, on the ground of the discharge, and on the further ground that the judgment of dismissal had been taken in violation of a parol stipulation. The motion was granted, and the defendant appealed.</p>

Appeal by the defendants from a judgment of the Marine Court at general term. This action was brought to recover the value of certain goods transported by the defendants. On the 25th day of August, 1864, the plaintiffs shipped by the defendants’ road one case of clothing directed to “ C. W. Oollyer, Hicksville,” which was delivered, with other goods, by the defendants’ servant upon the platform at Hicksville, on the 27th day of August, in good order and condition.

The notice of protest was sought to be proved by the notary’s certificate, which certified that notice was given to “ Charles Devlin, New York.” The notary testified that he directed the notice to the defendant, at the corner of Second avenue and Fifty-second street, although he was not positive, and could not tell without looking at his books, which were not produced. The defendant really resided at the corner of Second avenue and Fifty-seventh street.

<p>It is not negligence for a person to attempt to cross a street railroad track while a car is approaching at a high rate of speed, if there is in fact ample time to cross the track before the car, and the person could have done so but for an unavoidable accident.</p> <p>Thus where the plaintiff, seeing a car approach, started to cross the street in front of it, but in ample time to have escaped it, but while crossing the track slipped and caught hie foot in a hole in the pavement, and was run over by the car before he could escape—Held, that a motion for nonsuit, on the ground of the plaintiff’s contributory negligence, was properly denied.</p> <p>The bodily pain or suffering, which constitutes an element in estimating damages for bodily injuries, is not confined to that which may have been incurred before the trial, but includes such future suffering as it is reasonably certain from the evidence must result from the injury.</p>

<p>Appeal by the plaintiff from a judgment entered on a dismissal of the complaint at trial term.</p> <p>This action was brought to recover of the defendants, as common carriers of passengers by steam ferry boats between New York and Hoboken, the damages alleged to have been sustained by plaintiff in consequence of an injury to bis leg, occasioned by the falling of a horse upon it, on board of one of the defendants’ ferry boats. The complaint alleges that the defendants carelessly and negligently caused the horse to be driven against the plaintiff; omitted to give any notice of its approach; omitted to land the horses and carts before admitting plaintiff on the boat; omitted to prevent the overcrowding of the boat, pier, and bridge; omitted to provide proper safeguards against the horse; omitted to provide any place of retreat for said plaintiff from the horse; and omitted to take any precaution necessary for the safety of the plaintiff.</p> <p>The answer admits that an injury was sustained by the plaintiff from an accidental collision» with a horse driven by persons unknown, but denies every allegation whereby negligence or carelessness is imputed to the defendants, and avers that the injury was occasioned by the plaintiff’s own negligence, in negligently and carelessly exposing himself upon that part of the boat appropriated to the use of horses and vehicles.</p> <p>On the trial, the plaintiff having rested his case, defendants’ counsel moved to dismiss the complaint, on the ground that the evidence was insufficient to show that plaintiff’s injuries were occasioned by the negligence of the defendants, and on the ground that the plaintiff had contributed, by his negligence, to produce the accident. The court, granted the motion solely on the latter ground. The plaintiff then appealed to the general term.</p>

Appeal by the defendants from a judgment of the Marine Court at general term. The plaintiff leased to defendants for the term of ten years and two months, from March 1, 1859, the premises No. 205 East Twenty-fifth street. The premises were injured by fire. There was a clause in the lease, that in case the building should “ be destroyed and burned down,” and the plaintiff should not rebuild within a reasonable time, the defendants had the right to terminate the lease.

In August, 1865, plaintiff obtained a judgment against the defendants for $500 damages, and $88.87 costs. Held: at general term, that the execution was not regularly issued, as the judgment was satisfied of record; that the costs having been paid, the attorney could have no lien upon the judgment for coimselfees, until the amount of such fees were definitely ascertained.

Appeal by the defendant from a judgment of the Third District Court. The action was brought to recover damages sustained by the plaintiff by reason of the defendant’s negligence in the management of her property. The answer alleged that the defendant was a married woman, and set up a general denial.

<p>Appeal by the defendant from a judgment of the Fourth District Court. The action was brought to recover possession of personal property, under section 206 of the Code of Procedure, The complaint demanded judgment, “that the defendant be adjudged to deliver to plaintiff the said property, and to pay him $50 damages for the detention thereof.” The summons was for the relief demanded in the complaint, and for judgment “ for $250 for keeping and detaining personal property.”</p> <p>It appeared on the trial that the defendant had refused to deliver the property to the marshal, who was required, by the indorsement upon the usual affidavit, as provided by the Code, to take immediate possession; and, on proof of the plaintiff’s ownership, and the value of the goods, the justice gave judgment absolute in favor of the plaintiff for $250, as provided by section 277 of the" Code of Procedure. The defendant appealed, on the ground that the operation of section 277 of the Code, prescribing the form of judgment in actions for claim and delivery, was not extended by the Laws of 1862 to the Marine and District Courts.</p>

<p>Although a third person may be guilty of negligence in the manner of using the defendant’s premises, with the latter’s permission, yet where such use, harmless in itself, is rendered hazardous to others by the defendant’s neglect to provide sufficient fixtures to Ms premises, the latter will be liable for the consequences of such neglect.</p> <p>A landlord having discontinued the use of gas upon his premises, removed the fixtures from the gas pipes, leaving the latter open and uncovered, in the apartments wMch were afterward let to, and occupied by, the plaintiff. The landlord subsequently gave to the tenant of a lower floor of the premises, permission to introduce gas into the house, which the latter did. In consequence of the gas pipes in the plaintiff's apartments being open, the room became filled with gas, and an explosion took place, causing injury to the plaintiff. Held, that the landlord was guilty of negligence, and, in the absence of contributory negligence on the plaintiff's part, was liable in damages for the injury sustained.</p> <p>Where in an action for negligence, the justice before whom the cause was tried did not pass upon the question whether the plaintiff was guilty of contributing to the injury by his own fault, but dismissed the complaint upon the sole ground that the defendant was not liable as matter of law, the court will not, upon appeal, inquire whether or not the plaintiff was guilty of negligence, for the purpose of affirming the judgment.</p>

Appeal by the defendants from an order denying a motion for a new trial. , The action was brought for the pru-pose of settling a copartnership alleged to have existed between the plaintiff and the defendants, in the publication of the newspaper, “The New York Express.” Issues were framed, on motion, as follows : First.—What were the respective interests of the plaintiff and defendants in the copartnership mentioned in the pleadings in this action, from the thirtieth day of…

<p>Although the Act of 185V does not in terms require the justification of sureties to an undertaking required to remove a cause into the Common Pleas from a District Court, the undertaking is nevertheless subject to the approval of the justice, who may adopt any reasonable mode of satisfying himself of the sufficiency of the sureties offered.</p> <p>Hence where, in an action in a District Court, the defendant submitted an undertaking to remove the cause into the Court of Common Pleas, and the justice required the defendant to produce his sureties for justification, and on examination one of them was rejected, as being insufficient, and the cause was adjourned, to enable the defendant to produce the other surety; Held, that a judgment rendered for the plaintiff, on the adjourned day, on the failure of the defendant or his surety to appear, was regular, and would he affirmed on appeal.</p>

This action was brought against the defendants, as the Trustees of the ¡New York Brick Company, for having failed to file the statement required by the Act of 1848, § 12. A trial was had before a referee, upon whose report a judgment was entered dismissing the complaint. Separate bills of costs were taxed in favor of the several defendants who had appeared.

Appeal by the defendant from a judgment of the Seventh District Court. The action was brought to recover $147, to which the defendant interposed a defense, and presented to the justice an undertaking, and a draft of an order to remove the cause to the Court of Common Pleas, pursuant to the provisions of sec. 3, chap. 344, Laws of 1857, p. 707. The justice retained the papers, without either approving or disapproving of the same.

The action was brought to recover damages for a breach of covenant, contained in a lease, entered into by the defendant with the plaintiff. The justice before whom the cause was tried dismissed the complaint, and from his judgment the plaintiff appealed. The facts fully appear in the opinion of the court.

<p>The plaintiff, a broker, was employed by the defendant to effect a sale of land, and to that end the plaintiff introduced to the defendant one B., who proposed to take the land in part payment of other land he wished to sell. The offer was rejected, but nearly two years afterward, the defendant sold the land to B.’s wife, through B.’s agency: Meld, that the plaintiff was not entitled to recover broker’s commission for effecting such sale.</p> <p>A broker, employed to effect the sale of land, who makes an agreement with a purchaser, introduced by him, that in case of the latter’s offer of an exchange being accepted, he, the broker, shall be paid a gratuity, cannot recover a broker’s commission from his first employer in case the offer of exchange is accepted. (Per Brady, J.)</p>

<p>Appeal by the defendant from a judgment of the Marine Oourt, at general term.</p> <p>The action was between two citizens of the State of New York, and was brought to recover damages for an assault committed by the defendant, on board the vessel R. B. Schmidt, of which he was captain, while said vessel was at Light House Inlet, near Charleston, State of South Carolina.</p> <p>At the conclusion of the testimony, the defendant’s counsel moved for judgment, by reason of the want of jurisdiction in the court. The motion was denied, and judgment rendered for the plaintiff, which, being affirmed by the general term of the Marine Court, the defendant appealed to this court.</p>

Appeal by the defendant from a judgment of the general term of the Marine Court. The action was brought to recover the value of a watch, and a sum of money ($50), stolen from the plaintiff’s room, while a guest at defendant’s house, known as Sweeney’s Hotel. The defendant denied his liability as an innkeeper. It appeared in evidence that he kept a public house, at No. 68 Chat-ham street, New York, upon what is called the European plan.

. Appeal by tbe plaintiff, from an order of the special term, allowing the defendant to amend his answer on terms. Held: that they could not be given in evidence without being pleaded. The defendant then moved to amend his answer, by setting up these proceedings as a bar, and also as evidence of the value of Bowman’s services.

The action was tried on the 8th day of May, 1866. It appears to have been understood between the attorneys that the justiceshould take his own time to decide the case, and that time should be given for appeal. The defendant sent several times a week to ascertain if the case had been decided, and twenty days after the trial was informed by the justice that he had not yet decided it. On the 10th of June, judgment was entered for the plaintiff, although dated May 15, 1866.

<p>Appear by the defendants from an order made at special term.</p> <p>The defendant, St. John, demised to the plaintiffs, copartners, under the firm name of Read, Gardner & Co.,” the premises 52 and 54 Park Place and 49 Barclay street, for two years, from Hay 1, 1864, at the rent of $10,000. The lease contained this covenant, to wit: “And it is further agreed between the parties hereto, that in case the parties of the second part shall give six months’ written notice previous to the expiration of this lease, of their desire to renew this lease upon the same terms for a further term of two years, this lease shall be extended or renewed accordingly.”</p> <p>On the 31st of October, 1865, the plaintiffs mailed a notice, signed “ Gardner, Dexter & Co.,” to St. John, at Norwalk, Conn., he having moved there, notifying him of their desire to renew the lease. It was claimed that the defendant had given the plaintiffs his address there, and directed them to communicate to him by mail any matters relative to the demised premises ; and told them that any letters so addressed, would reach him in twelve hours. The defendant, St. John, alleged that he gave his address merely in order that he might be notified of any needed repairs. The notice so mailed was not received until November 4th. The defendant, St. John, did not call for his rent November 1st, as was his custom, but, coming to the city for that purpose on that day, he was taken ill, and was only able to call on November 3d, and was then personally served with a copy of the notice, on his stating he had not received the one mailed. No objection was then made as to the time, manner, or sufficiency of such service, but on the 21st December, 1865, he notified the plaintiffs that, considering the use they had made of the premises by storing cotton to his prejudice, he would not accept the notice of renewal as a compliance with the lease, and, on the 19th March, 1866, he conveyed the premises to the defendant, James R. Smith, who, on that day, notified the plaintiffs to surrender the premises on May 1st, 1866.</p> <p>The plaintiffs, thereupon, commenced this action, to compel a renewal of said lease, and praying for an injunction to restrain the defendants from proceeding to eject the plaintiffs from the demised premises. On a motion for the injunction, the following opinion was given at special term:</p> <p>Oardozo, J.—I have concluded, though with some hesitancy, that this is one of the cases in which the relief sought should be granted, within the rule laid down in Rawstorne v. Bentley (4 Brown’s Ch. R. p. 415). The delay in giving notice was but a few days, even if the notice served by mail be laid entirely out of consideration. But it seems to me, upon a very careful consideration of the conflicting affidavits, as to the verbal authority given by the defendant to the plaintiffs to communicate with him by mail respecting the matters of the tenancy, that the plaintiffs might have been misled into the belief that the authority extended to the notice requisite to effect the renewal, and that, therefore, a case of surprise or accident, without their fault, is presented, which calls for the interposition of the court.</p> <p>Although it may be true that the service of notice would effect the contemplated extension of the lease, yet, that can only be so, when the strict letter of the covenant has been complied with.</p> <p>Where equitable considerations, which cannot be available before a magistrate as a defense to proceedings to dispossess a tenant, are to be resorted to, an application to a court of equity is necessary and proper.</p> <p>The injunction prayed for, will, therefore, be allowed, upon such undertaking as may be reasonable, the amount of which will be fixed upon the settlement of the order herein, and upon the further condition, that the plaintiffs stipulate that, if an appeal be taken within five days, they will, if the appellants desire, accept notice of argument for the third Monday of the present month.</p> <p>From this decision, the defendants appealed to the general term.</p> <p>as to insufficiency of notice, cited McDermott v. Board of Police (5 Abbott Pr. 422); S. C. (25 Barb. 635); Rathbun v. Acker (18 Barb. 393; 1 Rev. Stat. 606, § 4; 4 Kent Com. 125). As to the equities of the case, he cited Story’s Equity Jur. § 1323; House v. Burr (24 Barb. 525), and claimed that the plaintiffs were not free from laches.</p> <p>cited Vassar v. Camp (11 N. Y. 441); Rawstorne v. Bentley (4 Brown Ch. 415); Viele v. Troy & Boston, R. Co. (20 N. Y. 184); Edgerton v. Peckham (11 Paige, 352).</p>

Apueal by the defendant from an order at special term, denying a motion to vacate an order of arrest granted under the third subdivision of section 179 of the Code of Procedure. The facts are stated in the opinion of the court.

Appeal by the defendants from a judgment of the Marine Court at general term. The action was brought for false imprisonment.

<p>Appeal by the defendant, from an order at special term, denying a motion to vacate an order of arrest. The action was brought upon a judgment recovered in the Circuit Court of Cook County, Illinois, on the 4th day of September, 1865, for $3,766 65.</p> <p>On an affidavit setting forth the fraud of the defendant in contracting the debt upon which the judgment was obtained, an order of arrest was granted. The defendant moved, upon affidavits, to vacate the order of arrest, which motion was denied, and the defendant appealed.</p>

<p>A depositor with a savings bank is charged with notice of a' regulation of the bank, which is printed in his pass-book, given to him at the time of the deposit, that “ payments to persons producing the pass-book shall be valid payments to discharge the bank; ” and he is bound promptly to notify the bank of the loss of his pass-book. A payment to a person producing a depositor’s pass-book, and an order with his forged signature, two days after the loss of the pass-book by the depositor, without notice to the bank of the loss: Held, to exonerate the bank from liability, the depositor having been negligent in delaying to give notice of his loss.</p> <p>It seems that a by-law of a savings bank, which declares that payments of deposits to any person producing the depositor’s pass-book shall be valid payments to discharge the bank, is void, as not being within its charter power to prescribe regulations for the return of deposits. (Per Cardozo, J.)</p>

Appeal by the plain tiffs'from a judgment at trial term, dismissing the complaint. The action was brought by the plaintiffs as judgment creditors of John E. Gook and Charles K. Howlett, to set aside as fraudulent and void, an assignment made under the following circumstances. Cook & Howlett were doing business in October, 1860, and were then insolvent.

Appeal by the defendant from a judgment of the Marine Comb at general term. The plaintiff was a passenger on the steamer Daniel Drew, from Albany to blew York. On the arrival of the steamer at blew York, one of the servants of the defendant, who was an expressman, came on board the boat, and applied to plaintiff to carry and deliver her baggage.

<p>This was an appeal from a judgment entered on the report of a referee in favor of the plaintiff.</p> <p>The action was commenced in the Sixth District Court, for goods sold and delivered after issue joined; the defendant filed the requisite bond, and the case was removed to the Court of Common Pleas.</p> <p>After removal, the parties pleaded anew, the plaintiff claiming for goods sold and delivered. The action was referred, and on the trial before the referee, plaintiff was allowed to prove, under defendant’s exception, that at the time of the sale and delivery of the goods, defendant, although a married woman, had a separate estate, consisting of an income arising out of real estate, and that she agreed to pay for the goods out of such separate estate.</p> <p>After giving such evidence, plaintiff was allowed by the referee, under defendant’s exception, to amend his complaint by inserting the following allegation: That the defendant, at the time of the sale and delivery aforesaid of said goods, possessed a separate estate or income arising from real estate in the city of New York, and charged the same with the payment of the claim in this action.</p> <p>The plaintiff" proved an assigned demand consisting of fourteen different items for goods sold and delivered at divers times, commencing May 20, 1855, and ending November 14, 1857, amounting in all to $185.</p> <p>The referee in his report, allowed plaintiff interest on the said several items separately, from the time of the sale to the date of the report. The referee also found that at the time of such sales and delivery, defendant was a married woman, and possessed a separate estate, and that she intended to charge and did charge such separate estate with payment of said items of merchandise, and that such indebtedness was a lien upon the separate estate and income of the defendant, and that plaintiff was entitled to the appointment of a receiver.</p>

<p>Appeal by the defendant from a j udgment at trial term, •entered oh the verdict of a jury.</p> <p>The action was brought to recover damages for injuries sustained by the plaintiff from his falling into a coal hole, in the sidewalk, opposite to the premises 144 Thompson street, in the city of Kew York. It appeared that the plaintiff, while passing along the sidewalk, in the early part of the evening, stepped upon one edge of a coal slide cover, which protected a vault under the sidewalk. The cover turned over upon being stepped upon, and one of the plaintiff’s legs slipping through, the whole weight of his body fell upon the upturned edge of the cover, severing the urethra, and otherwise seriously injuring him.</p> <p>It appeared that coal slide covers of the kind in question are now generally disused, being thought unsafe. The covers now commonly used are cast-iron covers constructed with spikes which fasten into the pavement. It also appeared that the pavement into which the cover in question was set, was sandstone, which had worn away and rendered the cover more easily displaced, which would not have been likely to occur had the pavement been of blue stone. There was a conflict of evidence as to whether the cover in question was fastened by a chain below, or whether it had rusted off.</p> <p>On a denial of a motion to dismiss the complaint, the court (Daly, F. J.), charged the jury as follows:</p> <p>The first question in this case is whether the corporation are liable to pay for this injury in the shape of damages, and that depends on the question whether it was occasioned by their negligence. That is to be determined by the extent of their duty, and whether the intermission of. that duty in this particular case, was the cause of this accident. The corporation are bound to keep the streets and avenues of the city in such repair that they may be safely traveled when open for use, and if they negligently suffer them to get out of repair, they are liable for any injuries that may happen through that negligence. When the words “ public street ” are used, they are used as a compound word, and include the sidewalks, which are more used for pedestrian travel than the portion of the street lying between them. Every thing on which the passenger travels is a part of the sidewalk. Every thing which has been allowed by public regulations to be traveled on is part of the sidewalk. It is a convenience to occupants of houses to be able to communicate from the sidewalk to the vault below, and for that purpose an aperture is allowed under certain securities which have been defined by the ordinances that have been read to you, and when these are complied with or conformed to, there can be no negligence on the part of the corporation, or on the part of the •owner or occupant of the premises. The aperture, which is used generally for the purpose of receiving coal, has an iron cover, which may be removed when the opening is needed for use, and replaced when that service is over. It is secured in the most common mode by a chain fastened below, or, in more recent cases, by the fitting of the cover, which dispenses with the necessity of a chain. However, as a matter of common use throughout the city, the old grating is still employed, chiefly , because it admits light and air into the vault below, and for that reason is, when it is equally well secured, better than the solid plate. It has been commonly preferred, and in use is equally safe.</p> <p>Now, it is the duty of the corporation to see that these gratings or covers are secure, and, in connection with that duty, the corporation may impose any regulation it considers necessary with regard to them or to the public streets. It may exercise any control it may think proper in the shape of an ordinance, and its officers, whether in the street department, or in any other department, may require such conformity thereto on the part of owners of dwellings, and on the part of those who use the public streets, as may secure the public safety. Whatever may conduce to that, overrides all other considerations; for that is a paramount object, and the corporation, having this duty imposed on it, and being invested with ample powers, is responsible, when, by their negligence, injury occurs. Of course the corporation is not liable where no reasonable exercise of vigilance on their part could advise them of the cause which produced the injury ; which I may illustrate by a case tried before me some years ago, in which I held that the corporation were not responsible for the gross negligence of a tenant, whose servant had left a grate opening but partially covered, and that it would be unreasonable to hold them liable for damage under such circumstances. They are not supposed to keep an amount of watchfulness that will enable them to detect every instance in which the proprietor or occupant of property has been guilty of negligence of this description; but if the aperture of a vault has been suffered to fall into decay, until the grating has become notoriously unsafe by reason of such neglect, the responsibility rests with the corporation. It is impossible that a defect of this kind should exist without the knowledge of some one. This insecurity in the covering of vaults in sidewalks, is a matter of common occurrence. I have frequently felt called upon to stop and have a vault covered; and when a policeman sees a vault uncovered, it is to be taken for granted that he will communicate with the occupant of the building, and enforce its being secured.</p> <p>This case, therefore, turns upon the question, whether the covering of this vault was one unfitted for use; whether it had worn away by attrition in the progress of time, so that the bed, which is alleged to have been of brown stone, was no longer fitted to retain the iron grating with security, or to prevent it from turning round, or up and down. If that were the case, it was of no consequence what chain was attached to it below; for the chain would only keep it steady in a particular part, and it might revolve,on its axis. If, however, it arose entirely from the fact of its not being fastened below, then it would be a case of negligence on the part of the owner of the building; if not, then the question is, whether it was of such long standing, and so obvious in its character, that the corporation must-have known it through the officer whose duty it is to ascertain the condition of the public streets, and to see that they are secure for the safe transit of travelers. That is a question of fact for you to determine.</p> <p>The defendants’ counsel asked the court to charge the jury as follows:</p> <p>1. That the defendants, having passed resolutions regulating the manner in which gratings should be constructed and secured, and vaults covered, have discharged their entire duty, and are not liable in this action.</p> <p>The court refused so to charge, and defendants’ counsel excepted.</p> <p>2. That unless the jury believe from the evidence, that the-defendants had a direct notice of the defective condition of the grating and neglected to repair it, they are not liable. '</p> <p>The court refused so to charge, and the defendants’ counsel excepted.</p> <p>At the request of defendants’ counsel, the court charged that, unless the jury believed from the evidence that the grating was, at the time of the accident, and had been out of order for such a length of time as reasonably to imply notice to the defendants of its defective condition, the defendants were not liable ; and on a like request, the court charged that the defendants were not liable for injuries resulting from a violation of their ordinances.</p> <p>On a request of defendants’ counsel to charge that the police are not the agents or servants of the defendants, and not responsible to them in any degree, the court said: That is abstractly correct. The corporation has not the power over th e police which it has over its usual agents. Neither has it over the board of education, and several other bodies which have been made independent of it; nevertheless the municipal authorities are clothed with general powers in respect to the public streets. The corporation can by ordinance impose duties upon the police just as it can upon its agents. It can direct that the streets shall be watched in a particular way.</p> <p>The case was then submitted to the jury, and they rendered a verdict for $1,000 in favor of the plaintiff.</p> <p>The defendants appealed to the general term from the judgment entered upon the verdict.</p>

<p>Appeal by the defendant from a judgment dismissing the complaint. The facts fully appear in the opinion of the court.</p>

Appeal by the defendant from a judgment granted on a demurrer to a complaint as frivolous, in an action to foreclose a mechanic’s lien. The grounds of the demurrer appear in the opinion of the court.

<p>The fact that a passenger by the defendant’s steamboat, at the time of paying for his passage and a state-room, wore his overcoat (which he afterward deposited in his state-room, whence it was stolen without fault on his part), cannot be regarded as indicating an animus custodiendi on his part, to the exclusion of the carrier, so as to relieve the latter from liability for the loss.</p> <p>The granting, for compensation, of the use of a state-room, in the absence of notice to the contrary, is a designation of the place in which the passenger may place his ordinary baggage, but not to the exclusion of the carrier, inasmuch as the whole vessel is in the possession and under the control of the carrier, and the animus custodiendi of the passenger, as to wearing apparel in temporary use, ceases when the article is placed in the state-room.</p> <p>The proprietor of a steamboat is liable for wearing apparel stolen from a passenger’s state-room, in the absence of negligence on the part of the latter.</p>

<p>It is not essential to state, in an affidavit to obtain an order for the examination of a judgment debtor, in supplementary proceedings upon a judgment in a court of record, that the judgment has been docketed in the county clerk’s office. It is otherwise where the proceedings are founded upon a judgment obtained in a District Court of the city of New York.</p> <p>A receiver of the property of a judgment debtor, appointed in supplementary proceedings, is not estopped from proving that the debt for which the judgment was obtained was fraudulently incurred, by the fact that the judgment creditor waived the fraud by bringing an action for the debt.</p> <p>Fraudulent representations of solvency, by which one induces credit to be given him just before making a general assignment, are evidence to indicate a general scheme of fraud, of which the assignment was a part.</p>

Appeal- by the defendant from a judgment of the Marine Court at general term. This action was brought to recover the value of two watches, alleged to have been sold to defendant, through Bray & Dauchy his agents.

On the trial of this action, the court (Cabdozo, J.) directed a verdict for the plaintiff, subject to the opinion of the general term. It appeared in evidence that the plaintiffs agreed with the defendant to manufacture for, and sell and deliver to, him, a number of hair mattresses; a portion of them to be of the weight of thirty-six pounds each, and the remainder of twenty-eight pounds weight each.

<p>Appeal by the defendant from a judgment entered on the verdict of a jury at trial term.</p> <p>This was an action for an injury sustained by the plaintiff, about nine o’clock in the evening of the 9th day of July, 1864, from being struck by a barrel of flour, which was being rolled from a truck in front of the defendants’ store, No. 19 South street, over a skid extending from the truck to the store. When struck plaintiff was stepping over the skid.</p> <p>The complaint substantially avers that the truck and skid belonged to the defendants, and that it was the defendants’ servants who were unloading the truck, and who rolled the barrel in question over the skid, and that the injury was occasioned by the negligence of the defendants. and their servants.</p> <p>The defendants, by their answer, alleged that the truck and skid belonged to a licensed boss carman, who was employed by them to carry and deliver the flour into their store, for cartage to be paid therefor by the defendants; also that the truck and skid, at the time of the injury to the plaintiff, were in the possession and in the charge of the boss carman and his servants, by whom the flour was being unloaded from the truck, on the 9th.</p> <p>On the trial it appeared that the plaintiff was struck by 4 barrel rolled over the skid by a man on the truck; that one end of the skid rested on the back part of the truck, and the other end was in the store. Before attempting to cross the skid, the plaintiff stopped on the stoop until a barrel passed over it, and then, in attempting to pass, he was struck by another barrel, which the truckman threw on the skid while the plaintiff was in the act of passing.</p> <p>The plaintiff testified that he noticed on the track “ J. H. & Co.” (being the initials of the defendants’ firm), in red letters on a white ground. He also testified that, in an interview with the defendants, within a few days after the injury, in which their attention was called by him to the injury, and the circumstances under which it had happened, one of the defendants said: “ I will go round and see my carman,” and “I will be back in a few minutes; ” and that, on coming back, he said: “ I have seen my carman, but, as usual, nobody knows any thing about it.”</p> <p>Upon the plaintiff resting his case, the counsel for the defendants moved for a dismissal of the complaint, upon the ground that there was no evidence of facts sufficient to warrant the finding under the pleadings that the relation of master and servant existed between the defendants and carman, which motion was denied, and the defendants’ counsel excepted.</p> <p>The defendants’ evidence showed that the truckman was a licensed boss carman; that he owned several trucks, and hired men to drive them, and paid his men by the week; that he was under no contract for his time with defendants, but worked for any person who might employ him; that he owned the truck in question, and that Henry Sarles, the driver, and person who unloaded it, and rolled the barrel in question, was in his employment for wages paid by him; that he was engaged by defendants to carry the flour in question with his own team and men, from one of the docks to their store, and that he was to be paid four cents a barrel for the carriage and delivery; that he was personally present at the time of the delivery of the flour at the store on the evening in question; that he had no special arrangement with defendants; if they gave him work, he did it, otherwise he had other places to work, and that he had put the letters “ J. H. & Oo.” on the truck out of compliment to the defendants; that he had another truck with the name “ of S. Smith ” on it; that he kept his carts near the defendants’ store ; that the flour was received, on the occasion in question, at the store door, by two persons who stood near the store end of the skid, to catch the barrels, and roll them in the store; that defendants had no other relation to the truckman than such as any man has to a public drayman, or carman, whom he employs to do specific carting for him; and that he had done carting in that way for defendants for twenty years.</p> <p>At the close of the evidence, the counsel for the defendants again moved for a dismissal of the complaint, on the ground originally urged, that there was no evidence to find that the relation of master and servant existed between the defendants and the carman ; but that, on the other hand, it appeared that the barrel by which the injury was effected was rolled by a man on the truck, who was in the employment of Warren Cronk, a public licensed boss carman, who was the owner of the truck; and that it was done while Cronk was in the performance of a special contract made by him, with the defendants, to carry the flour from the dock, and to deliver it at defendants’ store at an agreed price per barrel. The motion was denied, and the defendants’ counsel excepted.</p> <p>The judge charged the jury, among other things, that the question of fact for them to determine, so far as the evidence was in conflict, was whether the carman exercised a distinct or independent employment or business, and was employed by the defendants to carry the flour from the pier, and to deliver it at the store, at an agreed price, or an established rate, per barrel; or whether he stood to the defendants in the relation of servant, and was subject, as such, to the exercise of their control and supervision, in the performance of the service which he was employed to do. In the first case, the defendants would not be responsible for the negligent acts of the servants of the car-man ; but, in the other case, they would be liable. The judge then called the attention of the jury to certain “special circumstances ” in the evidence, claimed by plaintiff to establish the relation of master and servant between defendants and Cronk; that Cronk had been employed by the defendants in a certain way, for a period of from ten to twenty years; that he was attached in such a sense to the house of defendants; that he kept his carts in the vicinity of their store; and that the initials of the firm were painted upon the truck.</p> <p>The judge further said: “If you arrive at the conclusion that there was that relation,” of master and servant, “ existing, to which I have adverted as necessary to make the defendants responsible for the acts of Mr. Cronk, or the persons in his employment, you will be justified in the conclusion, from the existence of such a relation, that the defendants are responsible.”</p> <p>The defendants’ counsel excepted to the submission by the judge of the length of time that the defendants had employed the carman, and the other circumstances referred to by the judge, as insisted on, as taking the case out of the rule as applicable to an ordinary case of employment of a carman by a merchant.</p> <p>The counsel for the defendant asked the judge to charge:</p> <p>“ That, as the case stood on the evidence, there was no sufficient evidence of facts to warrant the finding that the relation of master and servant existed between the defendants and the caiman, or his driver on the truck.”</p> <p>The judge declined so to charge, and the defendants excepted.</p> <p>The jury found for the plaintiff damages to the amount of $750.</p> <p>From the judgment entered on the verdict the defendants appealed.</p>

<p>This is an appeal, by the plaintiff, from an order made at special term, appointing a referee to hear and determine the issues in this action.</p> <p>The action was brought on a written contract made by and between the plaintiff and the defendants, on the 6th day of July,, 1864. The contract recited that the plaintiff had conveyed to. the defendants a certain mining claim and water-power, near-Austin, Lander county, Territory of Mevada, being two ledges, of silver ore, called Romulus and Remus; and that the defendants proposed to form a corporation, under the laws of the State of Mew York, and make the stock of the said company 800,000 shares, divided into shares of $100 each, for the purpose of working said mines, and place the same in operation forthwith, or as soon as the same could be reasonably done. By the contract the defendants agreed to pay the plaintiff $18,750 on or before September 15, 1864, and deliver to him one-fifth of the capital stock of the proposed corporation : “ it being understood that said parties of the first part ” (the defendants) “ intend to carry out the aforesaid purposes, and in case of failure on their part to succeed in said project, then they are to cancel said deed; and the party of the second part ” (the plaintiff) “ thereupon agrees to cancel this agreement; said deed to remain, until the. consummation of the above agreement, in the hands of Charles W. Baker, as an escrow.” The complaint states that the defendants organized a company in pursuance of the said contract, and issued shares as therein proposed, and received and accepted plaintiff’s deed, and immediately conveyed the property to the Roman Brothers Silver Mining Company, and delivered to the plaintiff one-fifth of the stock of said company; and that the plaintiff demanded of the defendants $18,750, but the same had not been paid, &c. The defendants, in their answer, admit the contract, the organization of the company, the delivery and acceptance of the deed, the conveyance to the company, the delivery of the one-fifth of the stock to the plaintiff, and his demand for $18,750, and set up two defenses : First, “ that they were induced to enter into the said contract by certain fraudulent misrepresentations on the part of the plaintiff.” Second, “ that by the terms of the said agreement, the same was to be canceled and given up if the defendants should not succeed in carrying out the project in said agreement contemplated and mentioned; ” and the defendants claim that they failed to succeed, and without any fault on-them part, but on account of the fault of the plaintiff. It appeared from the affidavit used by the defendants on their motion for a reference below, that the plaintiff had been made superintendent of the company, and, as such, had received $14,250, in different payments, to be used in the development of the mines; that it had not been used for that purpose; and that plaintiff had rendered an account of said funds, consisting of seventy-six different items, most of which were disputed, and all of which would have to be examined, and proof taken of them, on the trial of this action, and that the trial would involve the examination of a long account. An affidavit of the plaintiff was read on the motion denying the charge of misrepresentation, or fault, on his jtart, and that there were any items of account involved in this action; and alleging that the said sum of $14,250, received and expended by him in his official capacity as superintendent of said company, had nothing to do with the issues in this action, and that his accounts have long since been settled with the company.</p> <p>Motion for reference granted.</p> <p>From the order entered the plaintiff appealed to the general term.</p> <p>I. The principal issue involved in this action is one of fraud; such an issue is not referable, and must be tried by jury (Constitution of the State of New York, Art. 1, sec. 2; Levy v. The Brooklyn Fire Ins. Co., 25 Wend. 687; 10 How. Pr. 11; 18 How. Pr. 213; 18 How. Pr. 310). The foundation of this action is not an account; the pretended account urged by the defendants as the foundation of a claim for a reference is not in the action at all : (1.) It is not between the parties to the action (Van Rensselaer v. Jewett, 6 Hill, 373). (2.) If the pretended account is sought to be introduced, to show a reason for the defendants’ want of success, it should not be admitted, because the defendants succeeded within the meaning of the contract, as they had organized the company, and accepted the deed, which was to remain in escrow until the consummation of the contract; and having conveyed the property to the company, they were unable to cancel the deed and rescind the contract, and are, at all events, estopped from denying their success. (3.) If the proposed account is in the action at all, it is only collaterally so, and is not the foundation of an action, and is no ground for a reference (Freeman v. Atlantic Mutual Ins. Co., 13 Abb. Pr. 125; Cameron v. Freemam,, 18 How. Pr. 310).</p> <p>II. A collateral issue may be referred without referring all the issues which should not be referred (Graham v. Golding et al., 7 How. Pr. 260).</p> <p>I. The order appealed from is not appealable. This has been distinctly held in this court, in Ubsdell v. Root (1 Hilton, 173); the court citing and approving Gray v. Fox (1 Code R. N. S. 334); Bryan v. Brennon (7 How. Pr. 359); Dean v. Empire State Mutual Ins. Go. (9 How. Pr. 69); Tallman v. Hinman (10 How. Pr. 89); such an order does not involve the merits of the action (Baker v. Nussbaum, 1 Hilton, 549; Conlan v. Latting, 3 E. D. Smith, 353). The certificate required by a rule of this court (Code, p. 921) has not been procured in this case.</p> <p>Under the Code, the authority to refer is much broader than before, for the Revised Statutes restricted a reference to actions founded on contracts (2 R. S., p. 384); but by the Code (sec. 271), there is no such restriction, and an action founded on fraud is referable (Sheldon v. Wood, 3 Sand. 739), also the issues on a motion for a provisional remedy (Jackson v. De Forest, 14 How. Pr. 81).</p>

Appeal by the defendant from a judgment of the First District Court. The action was commenced before the justice by summons, with a complaint annexed. On the return day the parties appeared before the justice, and the defendant interposed no answer to the complaint, but admitted the facts therein stated to be true.

Appeal by the plaintiff from a judgment of the general term of the Marine Court, affirming a judgment of dismissal. The action was brought on a bond given by the defendants. The complaint alleges that Lydia C. Smith and Darius W. Smith, her husband, on the 25th February, 1865, by warranty deed, with full covenants, conveyed certain premises in the city of New York to the plaintiff.

<p>Appeal by the defendant from a judgment of the Third District Court.</p> <p>The action was brought to recover damages sustained by the plaintiff under the following circumstances: The defendant owned a horse which was accustomed to bite; he knew of the vicious propensity of the animal, and, to guard against it, usually kept him muzzled. On a day in October, 1866, the horse was standing on the sidewalk in Twelfth street, before defendant’s wagon, which was backed up to defendant’s lumber yard. The horse was not muzzled at the time; he had been fed a .short time before, and the muzzle had been r emoved to feed and water him; after which the horse was led, by the person who had him in charge, to the wagon, and hitched to it. The defendant’s servant was then about to go to the stable for the muzzle to put on the horse. At this time, the plaintiff, returning from his dinner, came along the sidewalk, and stepped from the walk into the street to pass the horse’s head; but as he was in the act of stepping back near the horse’s head, he was caught and bitten in the- shoulder by the animal. The plaintiff had known the horse for two or three years, and knew that it was accustomed to bite. The defendant’s servant saw plaintiff approaching, and called out to him by way of warning. Plaintiff did not hear the call until he was at the horse’s head, and, as he turned toward the person calling, he was bitten. Plaintiff knew that the defendant kept his horse muzzled, but did not notice that the muzzle was off until he was seized and bitten. The plaintiff says, when he was bitten, the defendant was engaged in loading the wagon. The plaintiff was laid up, and prevented from working, for two weeks, from this injury, and incurred medical expenses incident to his cure. The justice rendered a judgment in favor of the plaintiff for $50 damages, from which judgment the defendant appealed to the general term of this court.</p>

<p>Appeal from an order made at special term sustaining demurrer and dismissing the complaint, and from the judgment entered thereon.</p> <p>The action was brought to recover rent. The plaintiff alleged, in his amended complaint, that Edwin P. Christy, on the 20th of June, 1859, being the owner of the premises No. 102 • Grand street, let the same by written lease to the defendant, for the term commencing June 20, 1859, and ending May 1, 1860, at the yearly rent of $1,000, payable monthly in advance; that the defendant took possession under the lease, and continued to occupy the premises until May 1, 1864, upon the same terms and conditions, and that the rent was reasonable for the use and occupation of said premises. That defendant had not paid any rent upon the premises since May 1,1862; Edwin P. Christy died on 24th May, 1862, seized of said premises in fee. That an action had been commenced in the Supreme Court for the appointment of a receiver of the rents and profits of the real estate of said Christy, to act' pending a certain controversy before the surrogate in regard to the probate of the alleged will of said Christy, deceased. All parties having any interest in the premises, after the death of said Christy, either as heirs, devisees, or otherwise, were made parties to said action. That the plaintiff was appointed receiver, and entered upon his duties as such on the 26th February, 1864, with power to enter into and upon said premises, and to have the possession and control thereof, and to rent ,the same from year to year, and to take all necessary and proper measures for the recovery of the rents and profits thereof in arrear and unpaid, and <£ that there is now in arrear and unpaid from the said defendant to the said plaintiff, by reason of the premises aforesaid, $1,916.59, with interest,” and judgment is demanded for that sum.</p> <p>The defendant demurred to the complaint, on the grounds: 1. That the complaint did not state facts sufficient to constitute a cause of action against the defendant for any claim or demand prior to 26th February, 1864. 2. That the complaint did not</p> <p>state facts sufficient to constitute a cause of action subsequent to that date.</p> <p>At the special term judgment was ordered for the defendant on the demurrer, from which order and judgment the plaintiff appealed to the general term.</p>

<p>Appeal by the defendants from a judgment rendered at trial term on a verdict.</p> <p>The action was brought to recover rent for the use and occupation of certain premises. The facts are fully stated in the opinion of the court. On the plaintiff’s resting, the defendants moved to dismiss the complaint, for the reasons: 1. That there was no resolution of the common council authorizing the comptroller to lease this vault. 2. That there was no previous appropriation made covering the expenses. The motion was denied. The jury rendered a verdict for plaintiff, fand judgment was entered accordingly. Defendants appealed to the gen'eral term.</p> <p>The action of the comptroller, in hiring the vault in question, is insufficient to bind the corporation; because, as is admitted, no resolution had been adopted by the common council authorizing him to hire it, and the comptroller possesses no power to make such a contract in behalf of the city until directed by the common council (see sec. 38, Charter of 1857, in Valentine’s Laws, p. 278; Revised Ordinances of 1859, chap. 8, art. 2, sec. 14). And the corporation is not liable for, or bound by, the acts of its officer, the comptroller, exceeding the authority conferred upon him (see Hoffman’s “ Laws Relating to the City and County of New York,” vol. 1, p. 151, et seq. ; People v. Stout, 23 Barb. 349; Altemus v. The Mayor &c. 6 Duer, 446; McSpedon v. The Mayor &c. 15 How. Pr. 462; Swift v. The City of Williamsburgh, 24 Barb. 427; Brady v. The Mayor &c. 2 Bosw. 173; Quinn v. The Mayor &c. [M.S. opinion by Cardozo, J.]; Farmers’ Loan & Trust Co. v. The Mayor &c. 4 Bosw. 80). The comptroller is a. public officer, performing, under various laws, certain functions, and having no power except as he acts in conformity with them (Smith v. The Mayor &c. 4 Sandf. 221; Brady v. The Mayor &c. 2 Bosw. 173; Murphy v. Commissioners of Emigration, 27 How. Pr. 44 ; Bonesteel v. The Mayor &c. 22 N. Y. Rep. 162).</p>

Appeal by the defendants from a judgment at trial term. The action was brought by the plaintiff to recover the loss by fire of certain property insured by the defendants. The policy was dated the 14th day of February, 1865, and for $23.50 insured the plaintiff against loss or damage by fire to the amount of $3,500 on his stock of fireworks, ordnance stores, and other merchandise, hazardous and extra hazardous, contained in the brick building, bTo. 16 John street, blew York.

<p>Equity will restrain a person from fraudulently using another’s trade-mark, and from imposing Ms goods thus trade-marked upon the public.</p> <p>One who in and by his trade-mark makes representations which deceive the public cannot ask a court of equity to restrain the use of such deceptive trademark by another. But a mere false or exaggerated statement in a public advertisement of the manufactured article, tending to recommend its use,to the public, will not deprive the owner ofia right to be protected in the exclusive use of his trade-mark.</p> <p>One who has fraudulently imitated the trade-mark of another, and offered for sale his own goods as those of the owner of the trade-mark, cannot be heard to raise the objection that the latter’s goods are injurious to health.</p>

<p>Appeal by the plaintiffs from a judgment entered on a report of a referee.</p> <p>The action was brought against the defendant an surety for one Charles Brady, on a lease made to him by the plaintiffs, on the 7th day of January, 1858. The answer admitted that the defendant became surety, but set up that she was then a married woman, the wife of one Hobby R. Stephens, and hence the agreement was void. The action was tried before William F. Allen, Esq.,.as referee. On the trial, it was shown that the defendant’s husband was living in December, 1856, and the plaintiffs sought to show that he had died about that period, by introducing testimony as to his habits, the state of the weather at the close of the year 1856, the common rumor and report of his death, and belief of his relatives therein, and their action thereon—all of which was excluded by the referee, who, at the close of the trial, found, among other things, “ that the defendant had, before the making and execution of the said covenant, intermarried with one Hobby R. Stephens, and was then his lawful wife, and the said Hobby R. Stephens was then living. The fact that the said Hobby R. Stephens was then living is based .upon the presumption of law in favor of the continuance of life, with proof tending to show that he was seen alive after that day, and in the absence of any satisfactory legal proof that he was then dead.”</p> <p>From the judgment entered upon the report in favor of the defendant, the plaintiffs appealed to the general term.</p>

This action was brought by the plaintiff as assignee of the following instrument: “ $2,400. Mew York, May 1st, 1859. - Due Mary L. Hall twenty-four hundred dollars, with interest on fourteen hundred dollars from October 21st, 1858, and with interest on one thousand dollars from January 29th, 1859, being proceeds of Francis Oilman’s mortgage note, and of three Mad River and Lake Erie R. Road bonds.

This was a proceeding to foreclose a mechanic’s lien, under the Act of 1863, and was brought by the contractor against the owners and subsequent lienors. Issue having been joined, .the action was referred to Samuel F. Barger, Esq., to hear and determine the issues therein.

Appeal by the defendants from a judgment rendered in the First District Court. The action was brought to recover for services rendered by the plaintiffs, as brokers, in procuring a charter for defendants’ vessel. On the return day mentioned in the summons, the defendants answered by general denial.

Appeal by the defendant from a judgment of the general term of the Marine Court. The action was brought to recover damages alleged to have been sustained by reason of a collision between one of the defendant’s cars and the plaintiff’s horse and wagon, on the 22d day of June, 1865.

<p>A partner who absconds, under circumstances indicating an intention on Ms part to abandon the business and leaye its control and management to the remaining partners, will be deemed to have consented to an assignment of the firm assets by Ms partners for the benefit of firm creditors; and an assignment so made will be upheld as against judgment creditors of the firm.</p>

<p>Appeal by the defendants from a judgment rendered in a District Court.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

Appeal by the defendants from a judgment entered on the report of a referee. The defendants in the action had judgment and execution against the plaintiffs’ vendor, upon which they indemnified the sheriff, who thereupon sold out all of the plaintiff’s property, and applied part of the proceeds to a prior execution, under which formal levy had been made.

Appeal by the plaintiff from a judgment of the Fourth District Court upon demurrer. The action was brought to recover of the defendants the sum of three dollars and seventy-five cents, for three months interest on two hundred and fifty dollars, at the rate of six per cent, per annum.

Appeal by the defendant from a judgment of the Sixth District Court. The action was brought for services rendered in painting a dwelling-house at the request of the defendant, and was commenced by attachment, on the return of which, the defendant, by counsel, appeared solely to object, and moved to vacate the attachment upon the ground, amongst others, that the affidavit upon which it was issued was insufficient.

<p>To defeat a recovery by a servant, for services offered to be performed by him under an unexpired contract of employment, on the ground of his discharge by the master, the latter must establish affirmatively that the discharge was for .just cause. A mere admission by the plaintiff upon the trial that his discharge was for “ alleged cause,” has not the force of present proof of facts from which a sufficient cause may be inferred.</p> <p>At a general meeting of the members of a religious society, the plaintiff was elected sexton for one year, at a fixed annual salary, and entered upon his duties. At a meeting of the board of trustees resolutions were afterward passed discharging the plaintiff for “ alleged cause,” and he was also expelled from membership with the congregation: Held, that it not appearing that membership was a prerequisite to the position of sexton, his expulsion did not affect his legal rights, under the contract of employment as sexton.</p>

Appeal by the defendant, from two orders, made at special term, enjoining him and his assignee from disposing 'of his property, and appointing a receiver thereof. The facts sufficiently appear in the opinion of the court.

<p>The owner of goods who, by his conduct, enables another to assume the credit of their ownership, whereby a third person is led to purchase them in good faith, cannot recover either the goods or their value from the buyer. It is not necessary that the owner should stand by and permit the sale.</p> <p>It being unlawful, by a city ordinance, for any one to take out a license as a public cartman, except the. actual owner of the cart licensed: Held, that where the owner of a cart permitted another to take out a license for his cart, it was tantamount to a declaration of ownership by the licensee, with the owner’s knowledge and consent, and the latter will be estopped from claiming ownership as against a londjide purchaser of the cart from the licensee.</p>

Appeal by the defendant from a judgment rendered at special term on an award of arbitrators. The action was brought to recover the price of a quantity of blue blouse flannel, amounting to $97,684.97, sold and delivered to the defendant by the plaintiff on a credit of four months.

Appeal by the defendants from a judgment entered upon the verdict of a jury found by the direction of the court at trial term. The action was brought to recover the possession of 200 dozen ladies’ shoes, of the value of $2,200.

Appeal by one of the defendants from an order denying a. motion to dissolve an injunction heretofore granted herein. The facts sufficiently appear in the opinion of the court.

Appeal by the plaintiff from a judgment dismissing the complaint. The action was brought to foreclose a mechanic’s lien for labor done and materials furnished toward the erection of a public school building in the nineteenth ward of the city of New York.

Appeal by the defendant from a judgment entered on the verdict of a jury. The action was brought to recover damages for the loss of 138 bales of cotton, part of a larger amount, which had been delivered to the defendants at Philadelphia, to be transported by them to New York. 790 bales of cotton were shipped by the plaintiffs, June 25th, 1864, at Cairo, Illinois, on the Illinois Central Eailroad, to be carried by them to Chicago.

Appeal by the defendants from a judgment'entered on the verdict of a jury at trial 'term. The facts are fully stated in the opinion of the court.

<p>A party will be restrained by injunction, from using a label as a trade-mark, resembling an existing one in size, form, color, words, and symbols, though in many respects different, if it is apparent that the design of the imitation was to depart from the other sufficiently to constitute a difference when the two were compared, and yet not so much so, that the difference would be detected by an ordinary purchaser unless his attention was particularly called to it and he had a very perfect recollection of the other trade-mark.</p> <p>It will be inferred in such a case, that the design was to obtain in the manufacture and sale of an article, any benefit or advantage that might be gained by its being purchased for another article of the same description which was known in the market, and a court of equity will protect a party from any such attempt on the part of a rival, to reap the fruits of the enterprise and industry of the. other, in making his fabric known and recognized by a distinctive trade-mark.</p> <p>The sale or transfer of the wood-cuts of a trade-mark does not carry with it the property in the trade-mark itself, unless under circumstances indicating that such was the intention, and this will not be inferred where they were transferred to be used in the printing of labels to be placed upon an article which, by agreement, was to be manufactured under the supervision of the proprietor of the trade-mark.</p> <p>There is a right of property in a trade-mark which maybe transferred to another by assignment.</p>

This was an application on the part of Bye to become a citizen of the United States. The facts appear in the opinion of the court.

The relator, Percy, an attorney, was, by the order of Justice Barnard; of the Supreme Court, committed to the county jail for thirty days; for contemptuous conduct in the view and presence of the court. He sued out a writ of habeas corpus in the Court of Common Pleas, and moved for his discharge upon the ground that the order for his committal was illegal and void.

This was an action for the dissolution of a copartnership and for an. accounting. The parties, plaintiff and defendant, settled the suit without consulting the plaintiff’s attorney, who now applied for the appointment of a receiver of the partnership property to secure his lien for the payment of his costs.

This action was brought to compel a specific performance of an agreement entered into by the defendants to purchase, and take an assignment of, a leasé of certain premises of which the plaintiff was the lessee. The agreement provided that the defendants should take the lease, subject to the conditions and restrictions contained in it.