Volume 2 — Duer's New York Superior Court Reports

This action was brought to enforce payment of the sum of $265, the amount of an assessment imposed on certain lands of the defendant in the City of New York, for .the benefit… Held: that a tax laid upon real estate in the city of New York, for the purpose of opening or improving a street, &c., takes preference to a prior mortgage. It is apparent from the course of legislation in this state, that the legislature have ever treated these statute liens precisely as a mortgage.

The action was brought to recover damages for the breach of a covenant in an agreement between the parties for the sale and conveyance of a house and lot in the city of New York. It was tried before Mr. Justice Sandford and a jury, in May, 1851.

The action was for the recovery of a printer’s bill, and was tried before Mr. Justice Paine and a jury, in April, 1852, and a verdict rendered for the plaintiff for $152.80. The case upon the pleadings and evidence is as follows:— In April, 1850, F. H. Upton wrote a pamphlet in relation to the trial of Professor Webster, of Boston, and employed the plaintiff to print 2,000 copies of it.

This action was brought against him and Davis, upon a note dated September 25th, 1850, at nine months, for $1,259, made by Davis, payable to the order of John Crum, and endorsed by Boyd first, and subsequently by Crum. The jury, under the direction of the Court, found a verdict for the plaintiffs, and assessed the damages at $1,396ta®t, with liberty to defendants to make a ease to be heard in the first instance at the General Term. The defendant Boyd now moves on a case made.

This action was brought by the plaintiff, as father of Wm. C. Rising, Jr., a minor, between 7 and 8 years of age, to recover of the defendant damages alleged to have been sustained, being the costs and expenses of proceedings by Habeas Corpus to obtain possession of the child, and also the value of the services of the child, whom, as the complaint alleged, the defendant removed from the state to prevent his being brought up on the Habeas Corpus, and delivered to his father,…

The action was to recover damages for an assault and battery, and was tried before the Chief Justice and a jury in October, 1852.

The action was brought to recover against the defendant, Storm, as first endorser, the amount of five promissory notes, made by a corporation named the Empire Mills; dated December 10th, 1850, payable to the defendant or order six months after date, and amounting in the aggregate to $10,000. The second endorsers, the other .defendants, were the persons composing the mercantile firm of Austins & Spicer, and had suffered judgment to be taken against them by default.

The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow and the remaining five children of the deceased.

<p>The omission of a party on whose behalf a sheriff is acting to interfere with him in the discharge of his duties, or to complain of the manner in which they are performed, is no evidence of his assent to the sheriff's neglect or violation of duty.</p> <p>Hence where such omission is the only proof of the assent of the party that is relied on, the question whether the assent was given ought not to be submitted to the jury.</p> <p>A vessel in the custody of the sheriff was lying near one of tW wharves of the city, when there were strong indications of an approaching storm, but he took no measures himself nor instructed any one to take any measures on his behalf, for the safety 6f the vessel, and during the night a storm arose in which she sunk.</p> <p>Held—that the question whether reasonable care and diligence had been used by. the sheriff to guard the vessel against the consequences of the storm ought not to have been submitted to the jury, but a positive instruction ought to have been given that he had been guilty of negligence, which rendered him liable.</p> <p>Upon these grounds new trial ordered. Costs to abide event.</p>

<p>This case came before the general term on an appeal from a judgment sustaining a demurrer to the answer to the complaint.</p> <p>The plaintiff, as assignee of Charles King, brought this action to recover for goods sold and delivered by King to the defendants between the 20th of February and the 1st of July, 1851, on a credit which expired on the 25th of December, 1851. King assigned this account to the plaintiff on the 18th of September, 1851.</p> <p>The defendants were owners of a note made by King on the 2d of June, 1851, payable six months after its date, and which was purchased by them on the 5th of June, 1851.</p> <p>In their answer, they claimed an equitable right to' set off the note against, and in extinguishment of, a like amount of the account, on the grounds that they owned the note when King assigned the account he had against them to the plaintiff; that King was then and since has been insolvent, and since then has moved out of, and ceased to reside in, this State. There was no allegation in the answer, that King assigned to the plaintiff with the intent to prevent one demand being set-off against the other, or that he knew when he assigned that the defendants owned the note mentioned in their answer, or that his subsequent removal from the State was fraudulent.</p> <p>All-other facts requisite to a full understanding of the case, are stated in the opinion of the Court.</p> <p>made and argued' the following points.</p> <p>I. It is a primary principle, that the assignee of a thing in action (other than negotiable paper) takes it subject to all equities between the original parties. (Murray v. Sylburn, 2d Johns. Ch’y R. 441, 443; 2d Story’s Ev., § 1047; Niagara Bank v. Rosevelt, 9 Cow. 409.)</p> <p>II. Die present case is fully within the equity, if not within the letter, of the statutes of set-off.</p> <p>III. The answer presents a clear case for an equitable set-off, and courts of equity have uniformly compelled a set-off under like circumstances.</p> <p>(See cases below cited.)</p> <p>1. The counter-claim or set-off is properly presented by answer. It was not necessary to file a cross-complaint. (Jennings v. Webster, 8 Paige, 503; Gay v. Gay, 10 Paige, 369, 377.) 2. The power of courts of equity to compel a set-off is not derived merely from the statute. It rests upon the original jurisdiction of courts of equity, and upon their general power over their suitors. (Gay v. Gay, 10 Paige, 369, 376; Simpson v. Hart, in error, 14 J. R. 63; Merrill v. Fowler, 6 Dana, on p. 306; 2d Story’s Eq. Jur., §§ 1431, 1432, 1437, 1444.) 3. The true and actual debt due from defendants to King, at the time of his assignment to plaintiff, was only the balance between their respective demands against each other. This was the rule of the civil law, and has always been acted upon by courts of equity. 4. The facts of the insolvency of King, and his removal beyond the State, and that defendants have no security for their note, are controlling reasons with a court of equity for compelling a set-off. (Lindsay v. Jackson, 2d Paige, 581; Gay v. Gay, 10 Paige, 369, 376; Stewart v. Chamberlin, 6 Dana, 32; Merrill v. Fowler, 6 Dana, 305; Jennings v. Webster, 8 Paige, 503. 5. A court of equity, under such circumstances, would compel a set-off, even against a plaintiff who had purchased for actual consideration paid at the time. It certainly would, in a case like the present, where no consideration has passed. (Stewart v. Chamberlin, 6 Dana, 32; Merrill v. Fowler, 6 Dana, 305; Chance v. Isaacs, 5 Paige, 592.) 6. The fact that the note of King was not due at the time when he assigned the book account to the plaintiff, does not impair the equitable right to a set-off. The right to an equitable set-off became perfect the moment King became insolvent. It was enough, at any rate, that the note would mature before the account. (Chance v. Isaacs, 5 Paige, 592; Lindsay v. Jackson, 2 Paige, 581; Gay v. Gay, 10 Paige, 369.)</p> <p>made and argued the following points.</p> <p>I. The claim of the defendants is not a demand against the plaintiff, nor is it such as might have been set off against Charles King, the assignor, while the demand on which suit is brought belonged to him. (2 R. S., 3d ed., p. 450, § 39, sub. 7, 8,10,11.) The defendants’ demand had not become due at the time of the assignment to plaintiff of demand on which suit is brought; consequently, no right to set off defendants’ demand existed at the time, and the assignee took the claim clear of any right of set-off' against it. (Wells v. Stewart, 3 Barb. S. C. Rep. 40; Graves v. Woodbury, 4 Hill, 559; Spencer v. Barber, 5 Hill, 569; Watts v. The Mayor, &c., 1 Sand. Supr. Ct. R. 23; Beckwith v. The Union Bank, 4 id. 604.)</p> <p>II. The defendants have no right, in equity, to set off the note held by them against the plaintiff’s demand.</p> <p>1. The demands are independent, and not connected with each other. To be the subject of set-off, in equity, under its extra statutory jurisdiction, there must be a connection between the demands. (2 Story’s Eq. Jur., § 1434; Schermerhorn v. Anderson, 2 Barb. S. C. Rep. 584; Rawson v. Samuel, 1 Craig and Phil. 161, 173, 174, 178.) 2. No equitable right of set-off in favor of the defendants, had attached at the time of the assignment to plaintiff, the note held by them not being then due. A court of equity would not interfere to enforce or establish a set-off in their favor of a claim not due. The doctrine of equitable set-off has never been carried to the extent of changing the contracts of parties. (Bradley v. Angel, 3 Com. 475; Spencer v. Barber, 5 Hill, 569; Ainslie v. Boynton, 2 Barb. S. C. Rep. 263; Lindsay v. Jackson, 2 Paige, 584; Duncan v. Lyon, 3 John Ch. Rep. 358, 360.)</p>

The action was against the defendant, as the first endorser of a promissory note for $2,045/T5T, purporting to have been made by Messrs. McIntosh & Co., payable to his order. It was defended on the ground that the endorsement was forged.

<p>Elisha. Peck, in his lifetime, owned in fee several lots of ground on the northerly side of Third street, between the First and Second avenues, each 20 feet wide, being Nos. 65 to 75 inclusive, No. 75 being the most easterly of the number.</p> <p>On the 8th of April, 1839, Peck and wife sold and conveyed by deed to John Hanrahan, lots 65, 67, and 69. The deed, besides the usual full covenants of warranty, contained this clause, viz. “ And the party of the second part has the privilege of building a party wall twelve (12) inchés thick, extending six inches on each side of the easterly line, forty-two feet deep, which wall the said party of the first part agrees to pay for, when used, and that each party has the privilege of extending said party wall ten feet further on the same conditions.”</p> <p>In August, 1839, Hanrahan erected a dwelling house on lot 69, the most easterly of his three lots, and constructed the easterly wall twelve inches thick, six inches of it being on lot 69, and the other six inches on lot 71, which latter lot was yet owned by Peck. The wall was of the value of $400.</p> <p>On the 20th of March, 1840, Hanrahan and wife sold and by deed conveyed lot 69, to the plaintiff’s intestate. The deed described the lot by metes and bounds, and conveyed the same “ together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity of Hanrahan and wife of, in, and to the same and every part and parcel thereof, with the appurtenances, unto the sole and separate use of the plaintiff’s intestate, her heirs and assigns for ever.” .</p> <p>In April, 1846, Peck sold, and by deed conveyed the lots 71, 73, and 75 to Hanrahan, together with all the tenements, hereditaments, and appurtenances thereunto belonging.</p> <p>After this purchase, and in April, 1846, Hanrahan erected buildings on the'three lots last named; and in the erection of the building on 71 used, and made a part thereof, the party wall of the intestate’s building on the easterly side of lot 69.</p> <p>The plaintiff’s intestate died in October, 1847, leaving her surviving Thos. IT. Burlock, a son, issue of her marriage with the plaintiff, Horton H. Burlock.' The plaintiff was appointed her administrator in Hay, 1852. Hr. Peck died in Nov. 1851, and the defendants are his executors, and have qualified as such.</p> <p>Neither Hr. Peck in‘his lifetime nor his executors, since his death, have paid anything for the party wall so used, either to1 the intestate or to the plaintiff. To a complaint stating these facts, the defendants demurred. Judgment was given for the defendants on the demurrer at Special Term, on the ground that the agreement of Peck to pay for the party wall, did not enure to the plaintiff’s intestate, under the deed given to her, and that on the wall being so used, she as grantee had no right to recover the half of its value. From this judgment the plaintiff appeals.</p> <p>made and argued the following points in support of the appeal:</p> <p>I. The covenant respecting the party wall was a real covenant, running with the land—because, 1. There was a privity of estate between the covenantor and his grantee. £. The .covenant related to and was made for the benefit of the land. 3. It was the intention of the parties to the deed containing the covenant' to make it a covenant running with the land. (Spencer's Case, 3 Coke, 66. Law Library, 27 vol., N. S. page 75 and notes. Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Vivian v. Arthur, 1 B. and C. 410. S. C., L. R. 113. Vernon v. Smith, 5 B. and Ald. 1, (7) C. L. R. 8. Holmes v. Buckley, 1 Equity Cases Abridged, 27. Brewster v. Kitchin, 12 Mod. 166. 27 Law Library, 84 and 85, 92 and 93. Morse v. Aldrich, 19 Pick. 449. Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 120. Weyman's Ex'rs v. Ringold, 1 Bradford, 53.)</p> <p>H. The covenant amounted to a grant of an easement which was rendered appurtenant to the lands of the covenantor and Ms grantee. Such clearly was the intention of the parties to the deed—because, 1. The land upon which the party wall was to be erected was granted and set apart by the covenantor and his grantee as and for a party wall between the property. 2. One half of the wall was to be erected on each lot, and the wall thus to be erected remained the sole property of Hanrahan, or his assigns, until Peck or his assigns used the wall and paid therefor a certain sum, to be ascertained. The wall then became the joint property of the owners of the contiguous lots. (See Mott v. Hawkins, 5 Taunton, 20. Sherred v. Cisco, 4 Sandford’s Law Reports, 481.) 3. The conveyance of either lot carried with it, as an incident, the wall or the rights which the party had in and to the wall under the covenant. The burdens and benefits of the covenant were cast upon the respective owners of the lots. 4. If Hanrahan had conveyed to the intestate before building the wall, she would have had a right to build the wall under the covenant, and upon Peck’s afterwards using the wall built by her he would be liable to pay one half of the expense of such wall. 5. If Peck or his grantee had or at any time should extend the wall ten feet further, the intestate, or her heir—devisee or grantee, would, on using such extended wall, be bound to pay one half of the expense thereof. 6. The covenant is in substance and effect, that Peck, whenever the wall shall be used either by him or his assigns, will pay therefor, to the owner of the contiguous lot, at the time of such use. Y. When Hanrahan used the wall, he not only used the part that was upon his own lot, but the part that was on the lot of the intestate. (See Laws of 1830, pages 349 and 350, § 2, § 4. Laws of 1831, page 392, § 1.) 8. Ho person is named in the covenant, as the party to whom the payment for the wall is to be made, and in such a case it is a "well settled principle that the stipulation will be enforced in equity, in favor of the party for whose benefit it is intended, or who is the party legally or equitably entitled, though he be a stranger to the undertaking. 9. The intestate is the person for whose benefit the covenant was made, she being the owner of the lot 69 Third Street, and the easement attached thereto, in lot Y1 Third Street, at the time of the use of the wall. (Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Hills v. Miller, 3 Paige, 256. Trustees of Watertown v. Cowen, 4 Paige, 510. City of Cincinnati v. Lessees of White, 6 Peters’ R. 431. 3 Kent’s Com. 433. Worth Ipswich Factory v. Batchelder, 5 N. H. R. 192. Balley v. Wells, 3 Wilson, 26. Bucheridge v. Ingram, 2 Vesey Jr. 317. Brewster v. Kitchin, 1 Lord Raymond, 317. Holmes v. Buckley, 1 Abridged Equity, 27. Earl of Portsmouth v. Bunn, 1 Barn. and Cress. 694. Cruise’s Digest, title Deed, 32, Chapter 6, § 39, § 40. First American Edition. Holmes v. Sellers, 3 Lev. 305. 1 Inst. 147. Willard v. Tillman, 2 Hill, 276. Demarest v. Willard, 8 Cowen, 206. Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 124. Sampson v. Easterby, 9 B. and C. 505. Cubit v. Porter, 8. B. and C. 254, 257. Wiltshire v. Sidford, 1 Mann and Ryl. 404. Morgan v. Mason, 20 Ohio R. 401. Gray v. Cuthberton, 2 Chitty’s R. 482. Lametti v. Anderson, 6 Cowen, 302. Thompson v. Rose, 8 Cowen, 266. Campbell v. Mosin, 4 I. C. R. 344, 6 do. 21. Vivian v. Arthur, 1 B. and C. 410. Gale and Wheatley on Easements, 200 and 201. Savage v. Mason, 3 Cushing, 500. Brown v. Pentz, M. S. Superior Court, February, 1850, Affirmed by the Court of Appeals, April, 1851. Weyman's Ex'rs v. Ringold, 1 Bradford, 53. 1 R. S. 748, § 2.)</p> <p>HI. The conveyance of lot 71 Third street, by Peck to Hanrahan, did not discharge Peck from liability on his covenant, to pay for the party wall whenever it was used either by him or his grantee. It is like the case of a lessee and his assignee ; both are liable, one on his express covenant, and the other by reason of his privity of estate. (Taylor’s Landlord and Tenant, pp. 212 and 213.) The assignee may discharge himself from liability, by transferring his interest in the lease, but not the lessee; he always remains liable. (Ibid.)</p> <p>IV. The plaintiff is entitled to recover from the defendants, the-value of one half of the party wall built by Hanrahan, and on the lots 69 and 71 Third street, at the time of the conveyance by Hanrahan and wife, to the intestate—because, 1. The covenant itself cast the burden of paying for the wall, when used by Peck or his assigns. 2. The intestate was the owner of the lot and wall at the time the wall was used by Hanrahan, and neither Peck nor his assignee who used the wall, had then any interest in the lot or wall, and payment was not to be made until the wall was used. 3. ‘The intestate was, in fact and in law, the assignee of Hanrahan of the lot to be conveyed, and the entire wall. By the deed to her, all the right, title, interest, and claim of Hanrahan to the lot, house, and wall, passed. An easement appurtenant to the land passes with the land, though the deed neither mentions the easement, nor privileges and appurtenances generally, unless it be expressly reserved in the deed, or by another made at the same time. (2 Hillard’s Abridgment, 119 and 349; 3 Kent’s Com. 433; Pattison v. Hull, 7 Cowen, 747.) 4. The privilege to use the land of the testator, for the building of the party wall, given in the deed to Hanrahan, operated as a grant of the use of six inches of the land of the testator for that purpose, and that privilege beyond all doubt was one running with the land, and passed to the intestate by the deed to her. 5. That part of the covenant being one running with the land, the whole of it is, as the covenant cannot be broken into fragments, and part be a real covenant, and part a personal one. 6. When Hanrahan conveyed to the intestate it was an unbroken covenant respecting the land, and something to be done concerning it, to wit, the using of the wall and paying for one half of it at the time of using, and the covenant not only related to so much of the wall as was built on the lot of either owner, but each had an interest in the entire wall and the land it covered. (Weyman's Ex'rs v. Ringold, 1 Bradford, 60, 61; Matts v. Hawkins, 5 Taunton, 20; Campbell v. Mezier, 4 John. C. R. 337, 6 do. 21.) 7. That assigns are not named in the covenant makes no difference; the deed to the intestate passed to her all the equitable interest that Hanrahan had under the covenant, whether the covenant runs with the land or not, and gave her a right of action in her own name since the Code. (Code of 1851, § 111; Thompson v. Rose, 8 Cowen, 266; 4 Kent, 159; White v. Whitney, 3 Metcalf, 81; Platt on Covenants, 481; 3 Law Library, 315; Smith’s Leading Cases, 89.) 8. Although assigns are not named in the covenant, they are necessarily implied; the land is granted to Hanrahan, his heirs and assigns for ever, and by reference to the grant of the land the assigns of the grantee are clearly named. 9. The grant of the land being to Hanrahan, his heirs and assigns, the deed may read thus, the parties of" the first part grant and convey to the party of the second part, his heirs, and assigns, for ever, all that certain piece of land, &c., with the privilege, &c.” ■</p> <p>Y. The judgment in favor of the defendant is clearly erroneous, and should be reversed with costs, and judgment rendered for the plaintiff for the amount claimed.</p> <p>made and argued the following points.</p> <p>I. The complaint does not state facts sufficient to constitute a cause of action.</p> <p>H. There is no covenant on the part of Peck, the testator, running with the land, by which Mrs. Burlock acquired any right "whatever. The covenant related to a thing not in esse, but to be done upon the land, and Hanrahan’s assigns- are not named. (Tullman v. Coffin, 4 Comstock, 134; Thompson v. Rose, 8 Cowen, 266; Allen & Paxson v. Culver, 3 Denio, 284-296; Weyman’s Ex'rs v. Ringold, 1 Bradford, 40.)</p> <p>IH. The deed to Mrs. Burlock describes the land only, by metes and bounds, no reference is made to a party wall, nor is' a dwelling-house named. Mrs. Burlock took, and her heir holds, all that she purchased or intended to purchase. Whatever rights. Hanrahan had, and which he did not convey expressly, he reserved.</p> <p>IY. In pursuance of the agreement between Peck and Hanrahan, which was personal in its character, Peck actually paid Hanrahan for the party wall by conveying the adjoining lot to Hanrahan, which Hanrahan immediately improved—allowance was then made to Hanrahan for the party wall, and if the plaintiff now succeeds, the effect will be to compel Peck and his representatives to pay for the whole wall instead of half.</p> <p>Y. Each owner owns, in severalty, the portion of the wall situated on his own land—with no qualification except that neither has a right to pull it down without the other’s consent. (Sherred v. Cisco, 4 Sandford, 480.)</p> <p>YT. If the agreement set out in the complaint is a covenant running with the land, then Hanrahan (Peck’s grantee) should pay for it; Peck never used the wall. The same Hanrahan, who was the grantee of Burloek, purchased of Peck the adjoining lot, No. 71, and was the first to use the wall by building on No. 71.</p>

The cause, hy the consent of the parties, was tried hy the Chief Justice without a jury, in October, 1852. The action was brought to recover against the defendants the value of three lithographic presses and fourteen lithographic stones, and the following are the material facts, as stated in the pleadings, and established by the evidence.

The object of the complaint was to restrain the defendants from collecting, by warrant or otherwise, a tax, amounting to more than $2,500, on the personal property of the plaintiff. The tax had been assessed upon him as a resident of the third ward of the city of Yew York, between the 1st of January and the 1st of April, in the year 1850, for his proportion of the taxes for that year, upon the valuation of his personal property at $200,000.

The action was brought to recover the amount of four checks certified by the defendants to be good. The complaint stated that the plaintiffs were the holders and owners of four checks drawn by A. B. Tripler on the defendants. That one of the checks, dated 9th of April, 1850, was for the sum of $800—another, dated 11th April, 1850, for the sum of $1201.80—another, dated 16th April, 1850, for the sum of $1662—and the last, dated 20th April, 1850, for the sum of $735.

This was an appeal from, a judgment entered at Special Term upon the report of a referee. The judgment was in favor of the plaintiffs for $214.56.

This was an action to recover damages against the defendants for their breach of a contract relative to the sale and delivery to them of 500 tons of Scotch iron.

This action was brought to recover judgment for two promissory notes, made by the defendant, payable to the plaintiff’s order. The making of the notes was not denied, but the defendant, in her answer, set up that she was a married woman; and that at the time of the making of the notes, and at the time of putting in her answer, her husband was living. The cause was tried before Mr. Justice Campbell and a jury, in January, 1853.

Appeal, by defendant, from a judgment at special term, in favor of the plaintiff, for $1,441.25. The action was brought to recover damages for the breach of an agreement, relative to the sale and exchange of certain real estate in the city of New York. The complaint averred that, on the 1st of April, 1851, the plaintiff and defendant entered into an agreement, in writing, under seal, and then set forth the agreement verbatim.

<p>The objection, that there is an improper joinder of parties, when the facts appear on the face of the complaint, can only be taken by a demurrer. Code, §§ 144, 147, 148.</p> <p>When a claim against an estate is not presented to the executrixes or administrators within the 6 months prescribed by the Revised Statutes, the only effect of the omission is to limit the recovery in a subsequent suit by the creditor to the amount of the assets in the hands of the executor or administrator at the time of the commencement of the suit, and to deprive the plaintiff of all right to recover costs. (2 R. S., p. 88, § 34.)</p> <p>The right of action is only barred when the claim was presented, and having been disputed or rejected was neither referred nor prosecuted within 6 months thereafter. <2 R. S. ib. §§ 38, 39, 40, 42.)</p> <p>Where an order is made by the surrogate for the payment of a sum of money by the administrator to a creditor or distributee, and the order upon appeal has been affirmed by the Supreme Court, the administrator is estopped by such affirmance from alleging any error or defect in the proceedings before the surrogate.</p> <p>An order which concludes the administrator equally concludes his sureties.</p> <p>An administration bond is more than a bond of indemnity; its breach gives an immediate right of action against the sureties.</p> <p>An order of the surrogate directing the prosecution of the bond and declaring it to be assigned, is a sufficient assignment within the statute; the surrogate, not . being a party to the bond, cannot assign it as an obligee.</p> <p>The action upon the bond is, under the Code, properly brought in the name of the person for whose benefit its prosecution is directed. Judgment for plaintiff.</p>

Tras was an action to recover possession of an equal undivided tenth part of two houses and lots, in the city of New York, and was commenced on the 19th of May, 1851. It was tried before Mr. Justice Campbell, on the 28th January, 1853, by consent of the parties, without a jury.

J. Boswobth, at special term, allowing a demurrer to the answer. The action was brought by the plaintiffs as payees against the defendant as the maker of a promissory note for $2,782.88. The complaint was in the usual form, and demanded judgment for the amount of the note with interest.

This was an action to recover a balance of the annual rent of premises in the city of New York, alleged to be in arrear.

This came before the General Term, on an appeal from a judgment at Special Term, and involves the question of the proper' construction of that part of the policy of insurance which describes the subject-matter insured.

The cause was tried before the Chief Justice and a jury, in February, 1850. The action was upon a policy of insurance, executed by the defendants. By the policy, the defendants insured the plaintiff to_the amount of $10,000, “against total loss only,” upon the freight of goods, laden or to be laden on the ship St. Patrick, which was -valued at $48,000. A technical total loss of the vessel was to constitute a total loss of freight.

Motion, on behalf of the plaintiff, upon a case to set aside the report of a referee, and the judgment entered thereon at special term, in favor of the defendant.

Appeal by the defendants, Smith & Brush, from a judgment and order at special term, denying to them a new trial upon exceptions taken on the trial, and also upon the ground that the verdict was against evidence. The action is for a malicious prosecution, and in its original form was not only against the present defendants, Smith & Brush, but also against Eugene Keteltas & Wm.

This was an action by the plaintiff as endorsee against the defendants as first and second endorsers of two promissory notes made by McConnell & Brothers, and payable 12 months after date to the order of Wanzer, Minor & Co., at the office of Rich.

Appeal by plaintiffs from a judgment at Special Term, dismissing the complaint. The action was brought to recover damages for the breach of a special agreement, relative to the chartering of the-ship Sarah on a voyage from Baltimore to Havre.

This action was brought by the plaintiffs, as the assignees of the firm of Thompson and Co., to recover the sum of $228.87, with interest, for goods sold and delivered by T. & Co. to the defendant. The answer did not deny the sale, but claimed to set-off a promissory note from Thompson & Co. to the defendant, for $653.70, dated May 16th, 1851, payable seven months after date. The credit for the goods expired on or before the 18th of December, 1851.

<p>Appeal from an. order at special term, allowing a demurrer to the complaint;</p> <p>The complaint is in the following words:</p> <p>John Paine, James Phalen, and John M. Bixby, plaintiffs, complain that Adon Smith, administrator of the goods and chattels, &c., of Jonathan Hunt, late of New York, deceased, defendant, refuses to pay unto the plaintiffs the sum of two thousand two hundred and forty-two dollars and ninety-two cents, with interest from the 16th day of October, 1846, due and owing unto said plaintiffs by said Jonathan Hunt, in his lifetime, and by Adon Smith, as administrator, &c., in manner following:</p> <p>For that in his lifetime, to wit, on the 9th day of May, 1846, Jonathan Hunt purchased, at a sale made under and in pursuance of a decretal order or decree in a certain suit then pending in Chancery, before the Vice-Chancellor, entitled, “John J. Palmer, Special Receiver, v. Isaac M. Woolley and Matilda D. his wife, and others,” certain portion of the premises mentioned and described in said decretal order or decree, bidding for the same by his agent, Jeremiah Lathrop, and causing the said premises to be struck off to one Adon Smith, and that said Jonathan Hunt, after paying, through his agent, Jeremiah Lathrop, the ten per cent, and auctioneer’s fees, according to terms of said sale, then and there failed to comply with said terms of sale and complete his said purchase, but forfeited his said ten per cent., whereupon a motion was made in the above mentioned cause or suit so pending for a re-sale, which was granted, and amongst other things ordered that on said re-sale the surplus of said re-sale, after paying the amount bid on said re-sale, interest, cost and charges, be paid over to said Jeremiah Lathrop, and that the deficit, if any, be paid by said Jeremiah Lathrop; and that at said re-sale, according to the Master’s report thereon made the 8th day of October, 1846, and confirmed the 16th day of said month, there was a deficiency upon said re-sale of $2,242.92^, which is still due and owing to the plaintiffs, they then being the owners in fee of the said property, after satisfying liens thereon. Whereupon the said plaintiffs demand judgment against the said defendant, as administrator of the goods, chattels, &c., of Jonathan Hunt, deceased, for two thousand two hundred and forty-two dollars and ninety-two cents, with interest thereon from the sixteenth day of October, one thousand eight hundred and forty-six.</p> <p>The demurrer stated no other ground of objection, than that the complaint “ did not state facts sufficient to constitute a cause of action.”</p> <p>Hr. J. Campbell, by whom the case was heard at special term, ordered that the demurrer should be allowed and the complaint dismissed with costs, unless the plaintiffs should within 20 days amend their complaint and pay the costs of the demurrer—and it was from this order that the appeal was taken.</p> <p>I. The demurrer is bad under the Code, because it specifies no defect. (How, Practice R. vii. 278 ; do. vi. 361.)</p> <p>II. The complaint is good upon demurrer. It states a contract with the court, to the benefit of which the plaintiffs are entitled; that one Lathrop, the ostensible contractor, was not the real'party in interest, and that the intestate is the real party in interest.</p> <p>III. Before the Code, the present plaintiffs could have filed a bill to set in motion the former order.</p> <p>I. The complaint shows no contract by defendant’s testator with the plaintiffs, for the purchase of any lands. (2 R. S. 135. § § 8, 9. Townsend v. Hubbard, 4 Hill, 351; McWharter v. McMahon, 10 Paige, 393; Coles v. Bowne, ib. 537.)</p> <p>II. It shows no conveyance to him, nor offer to convey, nor any excuse for such omission.</p> <p>IH. It shows the purchase to have been made by another person, to wit, Lathrop. . '</p> <p>IT. It shows that the default of the purchaser at the Chancery sale was judicially disposed of in the suit, by the court having jurisdiction; and that the defendant’s testator was not held as purchaser by the court. This is an adjudication of the whole matter. (Strong v. Dollner, 2 Sandf. Sup. Ct. R. 444; Brown v. Frost, 10 Paige, 247.)</p>

<p>Case on verdict, subject to the opinion of the court at general term.</p> <p>The action was tried before Mr. Justice Bosworth and a jury on the 8th of March, 1853. The pleadings are as follow.</p> <p>New York Superior Court.—City and County oe New York.—Eli O. Taylor v. Philip Nussbaum & Julius Strauss. —The complaint of Eli 0. Taylor, the above-named plaintiff, shows to this court, that, at the city of New York, on or about the 1st day of April, 1851, he sold and delivered to Philip Hussbaum and Julius Strauss, the above-named defendants, twenty head of cattle, for which said defendants promised and agreed to pay the sum of fifty dollars per head; that said defendants have since said sale paid on account of such cattle the sum of nine hundred and eleven dollars, and that said defendants are still indebted to Mm, the said plaintiff, for a balance of the moneys agreed to be paid for said cattle, in the sum of eighty-nine dollars, for which amount, with interest from the first day of April, 1851, the said plaintiff claims judgment against the said defendants.</p> <p>Eli O. Taylor v. Philip Nussbaum & Julius Strauss.—■ City and County of New York, ss. September 7, 1852.—Said defendants, by A. J. Perry, their attorney, answering the complaint in this action, say, that the said sum of nine hundred and eleven dollars so by them paid to plaintiff, by reason of such purchase, was paid by these defendants, and was received by said plaintiff as and for a full and complete accord and satisfaction of any and all claim and demand whatever, which the said plaintiff had against these defendants by reason of the sale and delivery of the cattle mentioned in the complaint.</p> <p>Defendants further answering, say, that in the course of their business they slaughtered the said cattle, and then first discovered that the said cattle had been much bruised, which bruising greatly injured the beef, causing these defendants much damage, and that it was in consideration thereof that the said plaintiff agreed to take, and did take, the said sum of nine hundred and eleven dollars in full satisfaction of his said original claim and demand of one thousand dollars for the said cattle.</p> <p>Upon the opening of the case, the counsel for the plaintiff moved for judgment on the pleadings.</p> <p>The court reserved its decision on such motion.</p> <p>The defendants’ counsel then called as a witness,</p> <p>Max Doctor, who, being sworn, testified as follows:—I know the plaintiff; I am in the employ of the defendant Nussbaum; the defendants bought from the plaintiff the cattle in" question; I saw the cattle after they were slaughtered; the beef was in bad condition; the cattle were slaughtered the same day they were purchased; I was present at a conversation between plaintiff and defendant Nussbaum; this conversation took place in the street after the cattle were slaughtered; we met the plaintiff, and Nussbaum told plaintiff the cattle were bruised; plaintiff said he had nothing to do with it, that Belden collected the bill; what he threw off the plaintiff would be satisfied with; one thousand dollars was the price to be paid for the cattle; I know Belden; I have a receipt for money •paid Belden for the cattle; I have seen Belden write; I know his handwriting; the receipt now shown me is in his writing.</p> <p>The receipt was here read in evidence, and is in the words and figures following, to wit:</p> <p>New Yorki, April 23d, 1851.</p> <p>Received of Philip Hussbaum and Julius Strauss, nine hundred and eleven dollars, in full settlement and satisfaction, for twenty head of cattle, sold by Eli O. Taylor to them on the 1st day of April, 1851, for the sum of $1,000 00.</p> <p>W. H. Beldeh.</p> <p>$911 00</p> <p>I don’t recollect that I was present when the money was paid.</p> <p>On being cross-examined, the witness further testified: I believe the plaintiff lives in Albany; I saw him before the sale; I don’t know who was present at the sale except the plaintiff and defendants; I don’t know as Belden was; I understand the sale was made by plaintiff; the conversation above referred to took place a week after the sale ; myself, plaintiff", and Hussbaum were the only persons present at the time of the conversation ; Taylor knew we were dissatisfied with the cattle; Taylor said I suppose Belden will do what is right; whatever Belden would do he was satisfied with; I did not see plaintiff afterwards; saw Belden and defendants together after conversation ; can’t recollect that I saw Belden sign the receipt; Belden called at slaughter-house once or twice; saw Belden at slaughter-house after conversation ; the first time I saw Belden at slaughter-house, he would only allow $50 for bruises; I was not present when Belden called the second time; Belden said he was authorized by plaintiff to do what was right; he said he would allow what was right; Belden and defendant did not agree at that time as to the amount to be deducted; I was not present at the time of the sale of the cattle to defendants; the sale was not made the day the plaintiff first called at the slaughter-house; the cattle were not in the city then; the sale was made the next day.</p> <p>On being again directly examined, said witness further testified: I heard Belden and defendants talk about amount of deduction to be made; Belden would not allow more than $50; this was after defendant had conversation with plaintiff in the street; defendants wanted $150 deducted for cattle being bruised; Belden on this occasion stated that he had seen plaintiff, and plaintiff had told him to make a deduction of every thing that was right; when defendant made remark about deduction of $150, Belden offered him $50; defendant said he could not stand it; it was not enough; this was a few days after the conversation with plaintiff in the street.</p> <p>The defendants here rested their case.</p> <p>The plaintiff then called as a witness,</p> <p>William H. Belden, who, being sworn, testified as follows r I know the plaintiff and defendants; I was the agent for the plaintiff for the sale of the cattle in question ; my brother, who is my partner, sold the cattle to defendants; I can’t say whether the plaintiff was in the city at the time of the sale; he was in the city a day or two before the sale; two weeks after the sale I called on the defendants to collect the bill; I saw Nussbaum; I can’t say whether or not the last witness was present when I called; I asked Nussbaum to pay the bill; he refused to do it; he wanted a deduction from the bill for the cattle being bruised; I do not know how much he wanted deducted; did not agree on the amount to be deducted at the first interview; I did not make an offer until I had seen Taylor; I can’t tell whether I mentioned Taylor’s name; I saw plaintiff afterwards, and before the defendants paid me; plaintiff never authorized me to make any deduction; I made the deduction myself on my own responsibility, as I wanted to get the money; defendants refused to pay the whole bill, and I deducted $90; I sold the cattle for plaintiff on commission; myself and brother were partners; I never at any time told Nussbaum, or any other person, that plaintiff had authorized me to make any deduction whatever.</p> <p>On being cross-examined, the witness further testified: I had made deduction on cattle sold before; I never made any deduction on cattle sold by us for plaintiff; I had done so on my own sales.</p> <p>The defendants’ counsel proposed to show that witness had frequently made deductions on bills for cattle, when the cattle had, after slaughtering, been found to be bruised, for the purpose of showing that it was the usage of persons collecting bills for cattle to make deductions.</p> <p>The jolaintiff objected to the testimony, and the court sustained the objection, to which the counsel for the defendants excepted.</p> <p>The testimony was here closed, and the cause submitted.</p> <p>The counsel for the plaintiff requested the court to charge the jury, that the evidence did not show a legal authority in the witness .Belden, as agent for the plaintiff, to accept a less sum than the contract price for the cattle, and that notwithstanding the payment of such sum, and the receipt of the same by said Belden, in full payment of the contract price, the plaintiff was entitled to a verdict.</p> <p>The court hereupon charged the jury that the evidence-produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of such contract price, and the jury found the following facts, subject to the opinion of the court at general term, upon the question of the plaintiff’s right to recover, notwithstanding such payment and receipt.</p> <p>The counsel for the plaintiff excepted to that portion of the charge of the court, wherein the court charged that the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, and desired the court to note such exception.</p> <p>The jury thereupon found—.</p> <p>First, That after the sale and delivery of the cattle, defendants paid to "William H. Belden the sum of $911, which sum the said Belden agreed to accept in full payment of the said cattle, by reason of the same having been found bruised when slaughtered.</p> <p>Second, That said Belden was legally authorized by the plaintiff to accept such sum in full payment of the contract price of 'the cattle.</p> <p>The jury hereupon, by direction of the court, and with the consent of the parties, rendered a verdict in favor of the plaintiff, for the amount claimed by the complaint, with interest, $100.96, subject to the opinion of the court at general term, on the questions of law arising in the case, with liberty to the court to dismiss the complaint.</p> <p>moved for judgment on the verdict, and insisted on the following points.</p> <p>I. The question, whether the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, was a question of fact, and ought to have been submitted to the jury.</p> <p>II. The plaintiff never gave. Belden authority to accept the sum paid, in full of the contract price. He himself says, “Plaintiff never authorized me to make any deduction. I made the deduction myself, on my own responsibility, as I wanted to get the money. Defendants refused to pay the whole bill, and I deducted $90.”</p> <p>III. There was no contract or agreement between plaintiff and the defendants, that Belden should make this deduction from the bill. Even if the testimony of Max Doctor be credible, the reasonable and legal interpretation of the conversation between plaintiff and defendants is, that he, the plaintiff, would be satisfied with whatever Belden should do in the shape of a deduction, provided the defendants had a legal right to any deduction from the contract price. The sale was made by Belden, who alone knew the terms and conditions of sale. The alleged conversation between the defendants and Belden upon this subject, contained in Doctor’s testimony, is in harmony with this view—if there was a contract or agreement between plaintiff and defendants, that Belden should make any deduction he pleased, whether the defendants had a legal right to it or not, it would be, without consideration, a nud/wm pactmm, and of no binding obligation.</p> <p>IV. Had Belden been legally authorized by the plaintiff to accept a smaller sum than the contract price, in full payment of the contract price of the 'cattle, his acceptance of such smaller sum does not deprive the plaintiff of a right of action for the balance. . The payment of part is no satisfaction of the whole. There was no legal consideration for the deduction. The defendants had no legal claim to any deduction from the contract price. The doctrine of ca/oeat em/pior applied to the bruised condition of the cattle. There was no warranty of soundness. There is no pretence of fraud. The payment made was not a good accord and satisfaction. (Johnson v. Brannan, 5 Johns. 269; Seymour v. Minturn, 17 Johns. 169.) That the doctrine of caveat emptor applies to the sale of the cattle, see Hilliard on the Law of Sales, 224; Fitzherbert’s N. B., 94 c.</p> <p>claimed that judgment should be entered in their favor, and argued as follows.</p> <p>I. The answer alleges, that in consideration of the damage suffered by the defendants, on account of the cattle having been bruised, the plaintiff agreed to settle, and did settle his claim at a less sum than he originally demanded. The evidence proves the allegation. This is no answer of an accord and satisfaction, but of an agreement between the parties to settle, and a settlement.</p> <p>II. The insufficiency of a smaller sum to cancel a greater, pleaded in form, of an accord and satisfaction, proceeds on the ground of the palpable inadequacy of the less to the greater sum. (Walkman v. Ingleby & Stoke, 5 John. R. 386, 391, and cases cited.) If, in addition, however, to the less sum paid, any other consideration is shown from which the court can see that a benefit could be derived to the plaintiff’s satisfaction, that makes the payment of the smaller sum good as an accord and satisfaction. As, if the less sum be paid at a different place, or before the day agreed (Walkman, v. Ingleby, supra; Fitch v. Sutton, 5 East’s R. 230). »If the amount is disputed, the acceptance of a sum smaller than the demand, is a good accord and satisfaction (Palmerton v. Huxford, 4 Denio, 166). The answer and the evidence in this case both show that the amount was disputed, and that in consideration of the cattle having been bruised, $89 were thrown off in settlement.</p>

Appeal by defendants from a judgment at, Special Term, in favor of plaintiff, for $2,852.29. A bill of exceptions was attached to the record. The action was for an assault and battery, committed by the defendant on the plaintiff, in the month of June, 1850. The defendant, in his answer, admitted that he had inflicted several blows upon the plaintiff, at the time and place mentioned in the complaint, but denied that he had done so without •provocation.

This was an action to recover damages for the wrongful detention by the defendant, of certain articles of clothing, and stuff for clothing, alleged to be the property of the plaintiff. The answer took issue on all the averments in the complaint. The cause was tried before Mr. Justice Bosworth at the trial term for March, 1853.

The following are the pleadings. City and County of New York, ss.

Case on a verdict subject to the opinion of the court at General Term, The action was against the defendants, as the owners of the ship Princeton, a ship employed in the carriage of passengers and freight between the ports of Liverpool and New York, and was brought to recover the value of a trunk and its contents, the property of the plaintiff, which it was alleged,'through the negligence of the defendants, were stolen and lost on the pas» sage of the ship from Liverpool to…

Appeal, by plaintiff, from a judgment dismissing the complaint. The action was brought to recover the amount of a bill, alleged to be due from the defendants to the plaintiff, for services rendered by him at their request, as a physician and surgeon.

.Appeal from an order at special term, overruling a demurrer to the complaint. The complaint is in the words that follow. The plaintiffs in this case complain against the defendants, and allege that they, the said plaintiffs, are co-partners, doing business under the firm of Fairbanks & Allison, in the city of Halifax, in the province of Hova Scotia.

Appeal by defendant from a judgment at special term upon the report of a referee, in favor of the plaintiff, for $4627.70, including… Held: that “ The operation of the lien law is to transfer to the snb-contractor, so much of the contractor’s claim against the owner as would be sufficient to pay the debt of the contractor to his subcontractor.” Under the above decision, the whole amount due by the defendants is transferred to the lien holder. In Lehretter v, Koffman (Com.

Appeal of plaintiffs from a judgment at special term dismissing the complaint. A bill of exceptions taken upon the trial was annexed to the record. The action was against the defendant, as late sheriff of the city and county of New York, for making false returns to three several executions. The complaint charged, 1.

Motion, on. the part of the defendant, for a new trial, upon a case and exceptions. , The action was brought to recover damages for the wrongful and malicious taking and detention by the defendants, of certain personal property belonging to the plaintiff.

Cabe on a verdict for the plaintiff, taken subject to the opi-' nion of the court at general term.

This action was brought by the plaintiff, as endorsee, against the defendants, as makers of three promissory notes, each payable to the order of B. K. Olark, each dated Hay 1,1845, two of which were severally for the sum of $133, one at eight, and the other at ten months, and the third was for $135, and payable at twelve months.

Case upon a verdict for the plaintiff, subject to the opinion of the court, at general term. The action was brought to recover the amount of two policies of insurance upon the life of one Charles Hoyes.

Case upon a verdict for plaintiffs taken subject to the opinion of the court at general term. The action was for the recovery of the value of the use and occupation of premises known as Ko. 20 Wooster street, in the city of Kew York, and came on for trial before Mr. Justice Paine, and a jury, on the nineteenth day of April, A. D. 1852, and terminated on that day. The complaint was in the usual form. The answer denied the tenancy.

Case upon a verdict for the plaintiff, subject to the opinion of the court at general term, upon the exceptions taken on the trial. The action was brought by the plaintiff, late sheriff of the city and county of New York, against the defendant, as one of the sureties upon the bond given to the plaintiff, as sheriff, by Thomas Dunlap, one of Ms deputies, for the faithful performance of the duties of Ms office.

Appeal by defendant from a judgment at special term, in favor of-the plaintiff» for $1,228,10, with costs. The action was tried before Bosworth, J,, at a special term, on the 28th May, 1853, The nature of the controversy, the questions raised and decided, and the exceptions taken, sufficiently appear in the statement of facts found, and in the opinion delivered by him.

Appeal by plaintiff from a judgment, at special term, upon exceptions taken at the trial. The action was for the delivery of personal property, with damages for its detention.

Appeal by defendants from a judgment at special term, denying a new trial, upon a bill of exceptions. The action was upon a policy of insurance against fire, executed and delivered by the defendants to the plaintiff1 upon a stock of goods belonging to him in a store at Racine, in the State of Wisconsin.

Case upon a verdict for the plaintiff, subject to the opinion of the court at general term. The action was on a policy of insurance against fire, on a stock of groceries and liquors, in the store of one Oarston Hennings, the assured, in the city of New York. The plaintiff claimed as the assignee of Hennings.

Appeal, by the defendant, from an order at special term, setting aside the report of a referee in favor of the plaintiff. The action was for goods sold and delivered to the defendant, and work performed for Mm, and at his request. The answer merely took issue on the allegations in the complaint.

08. The appeal was founded upon exceptions taken by the defendant’s counsel upon the trial. The action was brought by the plaintiff, as endorsee, against the defendant, as first endorser of a promissory note. The defences set up in the answer were, want of notice of the dishonor of the note, and usury.

TW complaint was filed by the plaintiff, as the special partner in a limited partnership, against the defendants as the general partners, who conducted the business of the firm under the name and style of Hamlin, Sloan & Squires, and the relief demanded was, that the defendants should be enjoined from interfering with or disposing of the goods, property, or credits, of the partnership; from collecting any moneys due thereto; that a receiver might be appointed to take charge…

This, substantially, is the same case as Chegaray v. Jenkins (reported, 3 Sand. S. C. Rep. 409). It involves the same questions, and seeks to recover the same amount.

; that at various times previous to the 1st January, 1853, the plaintiffs (doing business under the name of Heustadt & Barnett) sold the said A- Joel & Co. merchandise to the amount of $2,1-91 t=ul, and that the credit had expired on the sales, and the amount was due and unpaid; that the said A, Joel & Co. had recently come to the United States, and established themselves in business on an extensive scale, and had contracted large debts by making purchases of the plaintiffs…

This was a complaint filed by the plaintiff as receiver of Cornelius Lockwood, a judgment debtor, to set aside an assignment made by the debtor to the defendant.

Gash upon exceptions, directed to be heard in the first instance at the general term. The action was brought upon a bond given by the defendant, to discharge an attachment against the property of L. S. Hargous & Co., merchants of Vera Cruz, as non-resident debtors.

Motion, on the part of the defendants, for a new trial, upon exceptions, and also upon the ground that the verdict was against evidence. The action was upon a policy of insurance against fire, and was brought to recover the sum of $2,500, which was alleged to be the amount of the loss which the plaintiffs had sustained, by reason of the destruction, by fire, of the property insured.

The complaint alleges, that the plaintiff, on the 22d February, 1851, bargained with the defendant to buy of him a piece of ground at and near the south-east corner of Atlantic street and Clason Avenue, in Brooklyn.

This action was brought to recover of the defendant, Searls as makers, and the defendant, Newell, as endorser, ths amount of the check following, “… Held: that the check on its face was entitled to grace; and that this being the law, and the check being, according to this rule of law, payable three days after the day named on its face—proof of a usage contrary to the law, and that it was payable according to its face, was not admissible to control the parties. The following

<p>The Superior Court has no jurisdiction to appoint a receiver of the property or effects of a foreign corporation, for the purpose of winding up its affairs.</p>

<p>Dehubbeb to complaint. The pleadings are fully stated in the opinion of the court.</p>

<p>In an action on promissory notes, given for work and labor done, and materials furnished by the plaintiff, in building, altering, and repairing certain buildings belonging to the defendant, it is a good defence, that the plaintiff. before he commenced the action, had commenced proceedings in the Common Pleas, to enforce his lien upon the buildings for the same debt,</p> <p>Such a proceeding is an action, substantially, for the same cause, with the additional remedy that, if the debt is established, the lien will be enforced,</p>

This was a motion, on the part of the defendants, to dissolve an injunction restraining them from proceeding to build on a certain part of a lot belonging to them, on the corner of the 3rd Avenue and St. Mark’s Place. The facts are fully stated in the opinion of the judge.

<p>Motion for an injunction, before Mr. Justice Bosworth. All the material facts are set forth in his opinion.</p>

<p>The question of title to lands is, in all cases, a question of ownership.</p> <p>The question does not arise in an action to recover damages for the breach of aa agreement to convey lands, when the only issue made by the pleadings is, whether an inchoate right of dower in the wife of the defendant was a subsisting encumbrance.</p> <p>In such an action, if the plaintiff recovers only nominal damages, the defendant is entitled to full costs.</p>

The action was brought, as against Paterson, for goods sold and delivered to him, and, as against Shaw, on his guarantee of payment for goods so sold, during one year, from June 11, 1852, to an amount not exceeding $400. A balance of $407.98 was alleged to be due, for which, with interest from January 5, 1853, judgment was prayed against both defendants. The defendant, Shaw, demurred to the complaint, and (among other causes) assigned the following.

<p>Tn an action against the defendant as acceptor of a bill of exchange, which was addressed to J. L., President of the Astor Bank, and accepted by him, as president, the complaint did not aver that the bank accepted the bill, or that J, L. was president, or, as president^ had any authority to accept.</p> <p>SeU, that it sufficiently appeared upon the face of the HU, that it was drawn upon, and duly accepted by the bank.</p> <p>Demurrer to complaint overruled, with costs.</p>

<p>A motion for the appointment of a receiver, when the order to show canse against the appointment is served before the commencement of the suit, will be denied as irregular.</p> <p>It is very doubtful whether the Superior Court has jurisdiction of a proceeding ■under the B. S. for the dissolution of a moneyed corporation.</p> <p>It is clear that the court has no authority to exercise the visitorial powers that were formerly vested in the Court of Chancery.</p>

<p>In an action to recover damages for slanderous words spoken of a married woman, if the words are actionable per se, the husband is a necessary party as plaintiff.</p> <p>Where the words are actionable only by reason of special damage, the husband must sue alone.</p>

<p>The superior court has jurisdiction of an action for the partition of real estate, situate within the city and county of New York, irrespective of the residence of the parties (Code, § 123, sub. 2, and § 33, sub. 1).</p> <p>Jurisdiction over the person is as fully acquired by the voluntary appearance of the defendant, as by service of a summons (Code, § 139).</p> <p>'When, upon the petition of infants over the age of 14, a guardian ad litem has been appointed in a partition suit, the order is valid, although no summons had been previously served upon the infants.</p> <p>The jurisdiction of the court is, therefore, complete, when an answer on behalf of' the infants has been put in by the guardian so appointed.</p> <p>The appointment of a guardian ad litem, in a partition suit, is regulated by the E. S., and is made by the court (2 E. S., § 2, p. 31V).</p> <p>To such an appointment, the cases of The People v. Hoffman (1 Wend. 48V) and Grant v. Van Schoonhoven (9 Paige, 225) have no application.</p> <p>The personal service of a summons upon an infant of the age of 14, under § 134, sub. 4 of the Code, has no other use than to hasten the period, within which the plaintiff may apply for the appointment of a guardian, when the infant himself neglects to apply, since, until this appointment is made, there can be no further proceeding against the infant.</p> <p>When it is not denied that the signatures of infants to their petitions for the appointment of a guardian ad litem are genuine, it is no objection to the validity of the judgment in the action in which they were defendants, that it does not appear upon the record, that proof was furnished to the court that the signatures were genuine. It will be presumed that proof was given.</p> <p>A variance in the name of an infant as stated in the complaint, and in the petition for the appointment of a guardian, may be disregarded as immaterial, both under the Code and under the E. Statute of Amendments (Code, § 1V6 ; B. S., § V, sub. 10, p. 425).</p> <p>Order, compelling a purchaser to take a title, to which the only objections were those above stated and overruled, affirmed, with costs.</p>

<p>A counter claim, as defined by the Oode, includes only causes of action existing against the plaintiff on the record, and on which, under the old system, an action at law, or a suit in equity, might have been maintained against him.</p> <p>Hence, in an action against the maker of a negotiable note by an endorsee, facts that, admitted to be true, amount only to a valid counter claim against the payee and endorser, cannot be set up, for any purpose, in the answer of the defendant.</p> <p>But, if the facts, although pleaded as a counter claim, constitute a good defence by way of a set-off, or recoupment, and the note was transferred under circumstances that rendered it subject to all existing equities between the maker and payee, they may be set up as a bar, in whole or in part, to the plaintiff’s recovery.</p> <p>Upon this ground, demurrer to the answer overruled, with costs.</p>

<p>Motion to set aside a second execution, and to compel a return of the first as satisfied. The facts are fully stated in the opinion of the judge.</p>

<p>When a complaint is not properly verified, the verification is a nullity; but the error does not affect the regularity of a subsequent judgment.</p> <p>It appearing that an order, extending the time to answer, together with a copy of the affidavit upon which it was founded, and which stated the name of the defendant’s attorneys, and his absence from the city, had been served upon the plaintiff’s attorney,</p> <p>Held, that the service thus made, was equivalent to a notice of appearance.</p> <p>Held, that as the damages had been assessed without notice to the defendant, the judgment entered thereon was irregular.</p>

<p>To an action to recover a debt contracted .by partners, a surviving partner and the personal representative of a deceased partner, cannot be united as defendants.</p> <p>The surviving partner is alone liable at law, and it is only when the remedies against him are exhausted that relief may be had in equity against the representatives of the deceased partner.</p> <p>But as the objection to such a joint action appears upon the face of the complaint, it cannot be taken in an answer, but must be, raised by a demurrer.</p> <p>It is not waived, however, by the omission to demur, but as the complaint shows no cause of action against the representative of the deceased partner, it may be taken advantage of upon the trial under § 148 of the Code.</p> <p>A defendant against whom a judgment is prayed by the complaint, although . no summons has been served on him, has a right to appear and answer under § 139 of the Code.</p> <p>In an action upon a promissory note, an answer, which fails to contradict the allegations in the complaint, showing the possession and property of the plaintiffs, but merely denies their right to prosecute as owners, is plainly frivolous"</p>

<p>An execution upon a judgment cannot be issued upon the application of the executors of a deceased plaintiff.</p> <p>Sections 283, 284 of the Code, are only applicable when the parties to the judgment are living.</p> <p>The proper remedy for enforcing a judgment, by the personal representative or assignee of a deceased plaintiff, is by action under § 428 of the Code.</p>

<p>A petition for the discharge of a debtor, imprisoned under an execution, cannot be heard by a judge at chambers. It must be presented to the court at a regular special term.</p> <p>It cannot be heard, in the first instance, at a general term: the court at general term exercising only an appellate jurisdiction, with the exception of the cases specified in § 265 of the Code.</p>

Ajst execution against the defendant, upon a judgment obtained against him by default, having been returned unsatisfied, an order was made and duly served, for his examination, under the Code. He did not appear on the day appointed by the order, and a motion was now made, upon the proper affidavit, that an attachment be issued against him.

A judgment was rendered in favor of the defendants for their costs of this action, which was duly docketed. The plaintiff appealed to the general term, and deposited with the clerk $250 in lieu of giving the undertaking prescribed by the Code, The judgment having been affirmed at general term, the plaintiff appealed to the Court of Appeals, and gave an undertaking which stayed all proceedings in this court, pending the appeal, on the judgment appealed from.

<p>When the act of a municipal corporation, against which relief is sought, affects injuriously the whole community over Which the corporate jurisdiction extends, the attorney-general is a necessary party to the prosecution of the suit.</p> <p>It is only when the corporate act which is a public wrong works also a special injury to particular individuals, that the action can be maintained in their names alone.</p> <p>Where the presence of other parties than those mentioned in the complaint is necessary to the complete determination of a controversy, the language of the Code, § 122, is imperative; they must he brought ire</p> <p>A judgment in an action, in which the attorney-general is a prosecuting party, hinds the public which he represents, and is a bar to an action by individuals for the same cause; consequently, his presence is necessary to “ the complete determination of the controversy/’ when the corporate act which is sought to he restrained or annulled is a public injury.</p>

The plaintiff brought this action to recover a claim, or demand, which E. Zachrisson had against the defendants, and which had been sold and assigned to the plaintiffs. The complaint states that the defendants, £ It avers a sale and assignment of the debt, to the plaintiff, in trust, and that he has a right, as owner, to the debt or demand, and prays judgment for the amount of it. The account annexed to the complaint, is in the form of debtor and creditor.

This was an action to recover the possession of certain lots bf land, in the city of New York. The complaint averred, that the lots which it described, ‘were, on or about the 15th of January, 1853, conveyed by Francis Price to the plaintiff, by a warranty deed.

This action was brought by tne plaintiffs as tenants, against the defendant as landlord, for a breach of a covenant contained in an agreement for the letting of the basement of the premises known as Ho. 464 Pearl street, New York.

This was an action against the defendant, as maker of a promissory note. Judgment m personam had been entered against her, for want of an answer, for $349.87, the amount of the note and interest, with costs of the action. The defendant moved to set aside the judgment for irregularity, and for other relief, on affidavits, showing that at the time she made the note she was, since has been, and still is, a married woman.

Tup, complaint was filed to set aside a conveyance of real estate, in the city of New York, upon the grounds of the incompetency of the grantor, and the exercise of undue influence. Upon the coming in of the answer, issues were directed, which were found by the jury in favor of the defendant. Subsequently, at a special term, a new trial was refused, and the complaint finally dismissed. The defendant now moved for an allowance under § 308 of the Code.

<p>The defendant in an action, will be allowed to set off a judgment in his favor for costs, against a judgment upon a verdict, in favpr of the plaintiffs, when the latter are shown to be insolvent, notwithstanding they had previously assigned the verdict to their attorney.</p>

<p>Appeal from an order at special term. All the material facts are stated in the opinion of the court.</p>