Volume 2 — E.D. Smith's Common Pleas Reports

<p>An alteration in the date of a general release, which purports to discharge the relessee from, all claims and demands “ to the day of the date,” is a material alteration; and when made by the relessee after exeeution by the relessor, and without his authority or assent, it would avoid the release.</p> <p>The authorities are divided upon the question whether, when a material alteration appears upon the face of the instrument, it is to be presumed, in the absence of explanation, to have been made before or after the exeeution and delivery.</p> <p>It seems, upon a review of adjudged cases, that the best rule, and the one most in accordance with the judicial decisions of the state of Sew York, is, that the instrument, with all the circumstances of its history—its nature—the appearance of the alteration—the possible motives to or against malting it— and its effect upon the parties respectively, ought to be submitted to the jury; and that the 'court cannot presume that the alteration was made after the signing, from the mere fact that it appears on the face of the instrument, whether under seal or otherwise.</p> <p>In bar of a recovery on a money demand, a release was produced, which appeared, on inspection, to have had its date altered by the obliteration of the word “ March” and the substitution of “ May.” There was some evidence that other relessors had executed the instrument before the plaintiff, and that they signed it after the day of the date as altered. It was not alleged that any claims had accrued to the plaintiff from the defendant between the two dates, to constitute a motive for the change. Held, that there was no error in the decision of referees, admitting the release in evidence.</p> <p>Under such a state of facts, the question whether the instrument had been vitiated by a fraudulent alteration, is a question of fact for a jury or referees.</p> <p>Where the plaintiff claims that a release has been altered after its execution by him, an exception, on the ground of irrelevancy, to the admission of testimony showing the time of such execution, is clearly untenable.</p> <p>The fact that an instrument was actually executed at the time indicated by the date substituted for the original date, explains the alteration, and renders the instrument admissible in evidence.</p> <p>Evidence that another creditor of the defendant was induced, by his fraudulent representations, to execute a release without knowing the nature of the instrument which he was thus solicited to sign, was held incompetent to sustain a charge that the same fraud was practiced upon the plaintiff by an agent of the defendant, no pretence being made that the former had acted under the influence or with a knowledge of the fraudulent representations, or knew that such other creditor had signed a release.</p> <p>In an action of debt, it appeared that the plaintiff and other' creditors of the defendant had united with him in petitioning for his discharge as an insolvent, as authorized by the statute on the application of an insolvent and of his creditors, to the amount of two thirds of all his indebtedness. In compliance with the statute, the plaintiff annexed to the petition his own affidavit that the defendant was indebted to him in the sum for which he now brought suit. Before the petition was presented, the plaintiff executed to the defendant a full release of all claims, but did not withdraw his name from such petition, nor require the return of his affidavit. The same were, therefore, afterwards presented to a judge by the defendant, who thereupon made oath before him, that the account of his creditors, therewith delivered, and which included the plaintiff’s name, was in all respects just and true. The insolvent discharge, for reasons not disclosed, was refused. Held, that the defendant’s oath did not operate, as between him and the plaintiff, as an estoppel in pais, or otherwise, to prevent him from insisting upon the release as a defence, and that there was no error in receiving the release in evidence and considering it with the other testimony in the cause.</p> <p>Held, further, that the defendant was not estopped to set up the release, as a defence to the plaintiff’s claim, by any rule founded upon public policy, nor by reason of the fraud attempted by him: such fraud, if any, having been participated iu by both parties, ought rather to be disregarded altogether, in determining their mutual rights.</p> <p>An admission acted upon alone by the party making it, is not conclusive upon him. It must have been acted upon by others, whose rights have been affected by a reliance upon its truth, and who would be prejudiced in consequence of the admission, if the party were suffered to deny that it is conclusive.</p> <p>The integrity of judicial proceedings forbids that a party to a record should be permitted to impeach the verity .of what he has himself made the foundation of its validity. He will not be allowed to deny the facts alleged by him in a judicial proceeding, (which facts have been acted upon by others, through his procurement,) so as to impeach their claims founded thereon.</p> <p>Therefore, in any matter growing out of an insolvent assignment and discharge, obtained in reliance on the affidavit of the debtor, he would not be permitted to deny the truth of such affidavit.</p> <p>And accordingly, where an insolvent debtor obtains a judicial discharge under his petition and affidavit, supported by the petition and affidavit of a creditor, neither of them can be permitted, as against the trustees to be appointed, or other parties to that proceeding, to deny the truth of their respective affidavits, so as to affect the regularity or integrity of the proceeding.</p> <p>But every proceeding in court, or every affidavit made by a party to a judicial proceeding, does not necessarily conclude him in a matter not connected therewith nor founded thereon.</p> <p>It seems, that the fact that an admission is sworn to, is not, in itself, essential in determining whether it concludes the party making it.</p> <p>The doctrine of estoppel in pais should be carefully guarded and properly limited in its application.</p> <p>It seems, that in cases connected with the administration of public justice and of government, the rule respecting admissions is more strictly construed; and they are often held conclusive on grounds of public policy, and from the jealousy with which frauds upon the state itself are guarded against, and the rigor with which the revenue laws are protected.</p> <p>An objection that a witness has already answered the same question, or that the subject thereof is exhausted, is addressed to the discretion of a court or referees.</p>

This action was brought in the Fourth District Court, upon a judgment of the same court, obtained therein by the plaintiff against the defendant. An objection was taken before the justice, to this jurisdiction, on the ground that no leave had been granted under § 71 of the Code, to commence the present suit. This objection was overruled. The plaintiff had judgment and the defendant appealed.

<p>This suit was commenced in the Marine Court hy attachment under the thirty-fourth section of chapter 300, laws of 1831, and a judgment was obtained against the defendant, who appealed to this court. The further facts are stated in the opinion.</p>

This cause was commenced in the Fourth District Court by the service of a summons, made out in the ordinary form, but containing no statement of a cause of action. Both parties appeared and put in a complaint and answer, no objection being taken to the process. An adjournment was then had by consent. On the adjourned day, the defendant did not'appear.

This suit was in the nature of a suit in equity for a foreclosure, and was brought against the defendant, Leavenworth, and his assigns, upon a contract for the purchase of land. The plaintiff alleged default in the payment of $6,990, with interest, and in the payment of interest on $21,578 from a day specified. The judgment demanded was, that the money be paid within a given time, or that the defendants be strictly foreclosed.

<p>An order was made at special term, denying a motion to remove one of the referees in an action, after trial had before them, and after their report was set aside, and the cause referred back for further testimony. Held, that the order was not appealable.</p> <p>A court has the power, in its discretion, to allow a re-hearing before the full bench of any order made in the same court by a single judge at special term.</p> <p>But such an allowance is not an appeal within the provisions of the Code, and is not a matter of right except when the order involves the merits, or falls within some of the subdivisions of § 349.</p> <p>To obtain a review, at general term, of questions of practice, decided by a single judge, in cases not involving the merits, and wherein no appeal is allowed by § 349 of the Code, the party desiring such review should obtain the certificate, prescribed in the old rule of the Court of Common Pleas, showing that the judge, by whom the decision is made, deems the question of such importance and doubt as to render the review proper, (a)</p> <p>The court, upon appeal from the decision of a motion, does not interfere with the discretion of the judge at special term, in granting or refusing costs upon the motion.</p> <p>Where a cause, founded upon a claim against an executor, was tried before referees, appointed by the surrogate, with the consent of the parties, and a report was made which was set aside, with a direction to take farther testimony and report specially; held, that a referee, unimpeached, would not be removed, on the defendant’s motion, for the reason that he and the plaintiff’s attorney were occupants of the same office, this ground of objection having been known to the defendant when he consented to the appointment.</p> <p>The additional fact that the plaintiff’s attorney has taken an assignment of the claim, to secure his costs, does not so alter the relations of the parties as to justify the removal of the referee, when the effect would be to direct a new trial ab initio, and thereby create a large additional expense upon the reference.</p> <p>Where a motion to remove a referee was denied, with costs, unless the moving party should elect to pay the costs of the reference and of motion, in which case the cause was ordered to be tried by a jury; held, that the provisions of the alternative, being operative only at his option, could not be made the subject of review or modification on his appeal.</p>

These were appeals from the Marine Court, in three cases. The facts, which were identical in all, are stated in the opinion.

A summons was issued in this case out of the Second District Court, against the defendants, a corporation created by the laws of the state of New Jersey, having an office for the transaction of business in this city. On the return day, the plaintiffs and the defendants appeared by their respective attorneys. A complaint was put in by the plaintiffs, as assignees of the claim of a surveyor, for services in that capacity and for the preparation of a map.

The defendants in this cause, on the return of a summons issued against them from the Marine Court, attended and answered the complaint. An adjournment was taken, and on the adjourned day the plaintiff produced his testimony and took judgment. After he and his witnesses had left the court, the defendants appeared and asked that the case might be opened and the evidence in support of his defence received. This was refused by the justice. ■ An appeal was taken to this court.

Tras was an action in the Marine Court, to recover money paid by the plaintiff on a judgment of that court, which was afterwards reversed upon appeal. The plaintiff proved his payment of the money upon an execution issued pursuant to the judgment. He then offered in evidence a copy of an order, entered in the appellate court, reversing the judgment, and which was certified by the clerk, without a seal. No judgment of reversal had been entered.

This was an appeal from an order at special term, setting aside a judgment and execution. The facts are sufficiently given in the opinion.

<p>This court, on appeal, is bound by the justice’s return of the facts in the case.</p> <p>If important matter is omitted in the return, the party aggrieved should cause it to be amended, and affidavits may be used as the foundation of an order directing a more full or specific return.</p> <p>To entitle the defendant, in a justice’s court, to demand an adjournment when a day has been appointed for the trial, he must make oath that he cannot safely proceed by reason of the absence of material testimony.</p> <p>Where a justice, upon the plaintiff opposing an adjournment of the cause, denied the defendant’s application to adjourn, and afterwards, without proceeding to trial, departed from his office, stating that it was uncertain at what time he should return, and at about three o’clock in the afternoon he resumed the holding of his court, and suffered the plaintiff to proceed with the trial in the defendant’s absence; it was held, that the effect of the justice absenting himself was, under the circumstances, a discontinuance of the suit, and that he thereby lost jurisdiction thereof, unless the parties voluntarily awaited his return, or in some manner assented to the delay.</p>

The plaintiff, having appealed to the general term, from a judgment entered upon a verdict rendered against him, applied to the court at special term, before the appeal was brought to a hearing, to set the verdict aside.

The complaint in this action was upon a joint and several bond, executed by the defendant and others as sureties for one Cavanagh, conditioned to be void on payment, by Cavanagh, to the plaintiffs, of the amount to be recovered by the plaintiffs in a suit pending at the time of the execution of the bond, wherein the plaintiffs in this cause were parties plaintiff and Cavanagh was defendant.

<p>Upon notice of a motion to strike out a specified portion of an answer, “ and that the plaintiff have such other or further relief as to the court shall seem meet,” the plaintiff is not entitled to an order striking out the entire answer.</p> <p>An answer by one of two parties sued as makers of a note, alleging that he has not sufficient knowledge or information whereon to found a belief whether the defendants, or either of them, made the note, is palpably false on its face. (b.) A defendant may set up as many defences as he may have, notwithstanding it appear that if one of them be true the others are immaterial and unnecessary. A debt due to one of two joint makers of anote, cannot be set off against the note; and, therefore, an allegation that the note was transferred to avoid such a set off, and that it was held by the payee until after it became due, is irrelevant, and will be stricken out on motion.</p> <p>An allegation that one of the joint makers has been discharged by the holder, is not irrelevant.</p>

The Court of Appeals having dismissed an appeal taken in this cause by the defendant from a judgment entered against him in this court, and having denied a motion to restore the appeal, with leave to renew, the defendant obtained an order at special term, upon affidavits, staying the plaintiff’s proceeding in this court for ten days, to enable the defendant to renew his motion in the appellate court. From this order the plaintiff appealed.

On the return of the process issued therein, the defendants appeared personally and with an attorney. Neither the justice nor the plaintiff being in attendance, the clerk, about thirty minutes after the hour named in the summons, announced that the case was dismissed in consequence of the plaintiff’s failure to attend, and added that the justice would not, probably, be present during the day.

Appeal by the plaintiff from a judgment in favor of the defendants, given in the Marine Court. The opinion shows the facts.

Appeal by the plaintiff from a judgment of the Third District Court, in favor of the defendant. The opinion gives the facts.

This was an appeal by the defendant from a judgment of the Sixth District Court in favor of the plaintiff. The facts are stated in the opinion.

This suit was brought in the Third District Court, to recover the contract price for certain engraving executed by the plaintiff for the defendant, hut rejected. The defendant recovered a judgment below, from which an appeal was taken.

<p>This suit was commenced by attachment, in the Marine Court, to recover wages earned by the plaintiff on board the steamship “ Sarah Sands,” on a voyage from San Francisco to Panama. The process was entitled against “ John Doe,” owner, &c. The vessel was attached, but the grounds upon which the court below issued the writ, or what facts were shown to bring the case within the statute authorizing this form of proceeding, are not disclosed in the papers produced on the appeal.</p> <p>In April, 1852, on the return day of the process, the plaintiff appeared by attorney, and averred a breach of contract, on the part of the owner of the vessel, to pay the plaintiff’s wages as cook and steward.</p> <p>Captain Wm. C. Thompson appeared by attorney as defendant, claiming ownership of the vessel, and pleaded a general denial and a settlement, effected, as he alleged, through the intervention of a British consul. On his application and by consent, a commission was then issued to take the testimony of witnesses in California, and Justice Lynch, in the court below, directed a long adjournment.</p> <p>On the 20th of August ensuing, the cause was tried before Justice Cowles, the parties submitting several written depositions.</p> <p>At the request of the attorney for Captain Thompson, the plaintiff had stipulated to furnish the real name of the defendant in the suit before the adjourned day. This does not seem to have been done, except that the testimony showed Thompson and one Oddie to have been the owners of the vessel at and before the time of the voyage. She was chartered by other parties, who had transferred their interest to the Pacific Mail Steamship Company. The steamer was under the exclusive control of this company when the plaintiff was engaged. No contract was made by him with the owners, who had no connection with the voyage, except that Thompson was in the company’s employment as master of the vessel.</p> <p>Thompson’s allegation of ownership, made in his plea, was. not controverted on the trial.</p> <p>Judgment was rendered in the Marine Court, in favor of" the plaintiff. An appeal was taken by Thompson to this court. The return was accompanied with an affidavit of the plaintiff, stating, among other things, that he had never sued Wm. C. Thompson, and did not intend to sue him, nor was he a party to the cause, but a stranger thereto.</p> <p>All the papers and proceedings, of which return was made to this court, were entitled like the original process, with no amendment or substitution in respect of the names of parties in suit.</p>

This action was brought by the plaintiff for services as a seaman on board a Bremen vessel, of which the defendant was master. The vessel sailed to New York, and thence to Buenos Ayres. ' She then returned to this port, and preparations were making to proceed again to South America, when the seaman procured his discharge under a writ of habeas corpus, issued by a judge of one of our courts.

This action was brought by a passenger on board a packet ship, for an assault and battery alleged to have been committed, during a voyage, by the master and first and second mates, who were all made parties defendant. An order to hold to bail was granted on the 25th of September, 1852, returnable November 25th. The defendant, Hackstaff, was arrested and served with the summons and complaint. He afterwards appeared by attorney and gave bail.

This was an appeal from an order granted at special term, making an allowance to the defendant of ten per cent, upon $488, the amount… Held: that the judgment spoken of in the Code, by which the right to disbursements is to be determined, is the judgment for costs, and that when a plaintiff is not entitled to costs, he cannot have disbursements. “ So here, an extra allowance, if made, is allowed as costs. “Whoever, then, recovers costs may have an extra allowance, if the…

<p>A District or Justice’s Court in the city of New York has no jurisdiction in an action, when neither the plaintiff nor either of the defendants resides within. . the district. No valid judgment can be rendered, although the parties appear and go to trial on the merits, without objection.</p> <p>The 103d section of the act to reduce, &c., (2 Rev. Laws, 379,) declares that a judgment rendered in such a case shall be utterly void.</p> <p>The general rule, that a party may voluntarily appear and waive a defect in the jurisdiction of the person only, cannot operate when the statute declares the judgment itself void.</p> <p>The statute relating to the Marine Court (2 Rev. Laws, 383, § 111) in express terms confers jurisdiction on that court, upon a voluntary submission of the parties; but § 111 does not apply to the Justices’ Courts.</p>

The plaintiff sued the defendant in the Third District Court, upon a sale and delivery of 20,000 bricks, and recovered judgment for their market value as proved.

<p>Ajppeal by the defendant from, a judgment of the Marine Court. The cause was heard on the return, and upon affidavits produced by both parties. The material facts are apparent in the opinion of the court.</p>

<p>The plaintiff brought his action in the Sixth District Court, against the defendants jointly, for the value of certain geese, part of which were owned by him and part by one Duffy. The geese had been accustomed to stray upon lands occupied as the defendants’ residence, in the upper part of the island of Kew-York, and were poisoned by the wife, without the husband’s knowledge, during his absence from home.</p> <p>The plaintiff recovered judgment simply for the loss originally sustained by him, although he also claimed as assignee of Duffy’s right of action.</p> <p>Other material facts appear in the opinion. The appeal was prosecuted in behalf of the plaintiff.</p>

<p>Where tlie terms of a sale made by an auctioneer require that his fees should be paid by the purchaser, he may maintain an action against the purchaser, for such fees, in his own name.</p> <p>On a sale of real estate, if a memorandum of the contract of sale, containing the requisites prescribed by the statute of frauds, be signed by the vendor, or his authorized agent, it is not essential to the validity of the contract, that there should also be a memorandum subscribed by the purchaser.</p>

<p>Ik this action, the plaintiff recovered judgment in one of the lower courts, against the defendants, for damages to certain furniture entrusted to them as common carriers. The defendants appealed to this court. The material facts are given in the opinion.</p>

This action was brought in the Second District Court, “ for ($33 25) money paid and expended, at the request of the defendant, for his benefit, and which he promised to repay and judgment was recovered by the plaintiffs for $28, after crediting the defendant with a payment, on account, of $5 25. The defendant appealed.

<p>In March, 1851, the defendant agreed to hire from the plaintiff the privilege of occupying an office in conjunction with him, at Mo. 14 Wall-street, in the city of Mew York, for a term to commence on the first of May, 1851, and to terminate on the first of May, 1852, at the rate of $100 per year. The agreement was not in writing.</p> <p>The defendant occupied the office not less than twice a week, for short periods, from the early part of May, 1851, until some time in the July following.</p> <p>It was in evidence, that a witness went to the office in June, 1851, under an agreement with the defendant to serve him and the plaintiff as a clerk, and remained until Movemher, 1851. This agreement with the clerk was not, in the mean time, rescinded.</p> <p>Upon these facts, L. B. Shepard, Esq., to whom the cause was referred for trial, held that the hiring was void by the statute of frauds. (2 R. S., 3d ed., p. 194, § 8. And see Oroswell v. Crain, 7 Barbour, 196.)</p> <p>The referee found, however, that the plaintiff was entitled to recover “ for use and occupation by the defendant or his clerk, but that such recovery must be limited to the actual term of the occupancyand he referred, in his report, to 2 R. S., 3d ed.., § 26 ; Little v. Martin, 3 Wend. 219; Wood v. Wilcox, 1 Denio, 37; Beach v. Cray, 2 Id. 84; 2 Saunder’s P. O. & E. N., 5th Am. ed., 1851, p. 1,176.</p> <p>Using the agreement as furnishing competent evidence of the value of the premises for the time they were occupied, the referee reported in favor of the plaintiff for $47 35. The defendant was thus, of course, entitled to the costs of suit, which amounted to $46 25.</p> <p>From the judgment entered upon the report, the plaintiff appealed.</p> <p>Some questions were raised upon the pleadings, but they were not pressed when the cause was argued.</p>

One Bedell made a promissory note for $1,698, and delivered it to one Searls, to be used for the payment of a debt which the latter owed to Jones, one of the defendants in this case. Searls obtained the note from Bedell, the maker, upon a promise to transfer to him therefor certain stock.

This cause was tried by the court, without a jury, at a special term, held by his honor, Judge Ingraham, who rendered judgment for the plaintiff. The case came up to the general term on a bill of exceptions.

This action was brought in 1851, against, the defendant, as the maker of a promissory note, dated in 1841, and payable on demand. The complaint contained only the ordinary averments, alleging the execution and terms of the note, and a demand and refusal of payment. The defendant pleaded payment and the statute of limitations. The plaintiff replied, denying payment, and averring that the cause of action did accrue within six years.

The defendant was the lessee of a hotel owned by the plaintiff, who had also rented to him certain furniture contained therein. The rent of the hotel being payable monthly, in advance, the tenant was dispossessed for its non-payment in the middle of a month, and,- upon leaving, took with him a part of the furniture.

<p>It seems a sufficient ground for dismissing an appeal, that the notice of appeal does not state the grounds thereof.</p> <p>This court, on appeal from a justice’s court, has no power to order a new trial on the ground of newly discovered evidence, where a trial has been had and both parties have appeared below.</p>

<p>Appeal by the defendant from bne of the district courts.</p>

<p>Appeal from a district court. The facts are sufficiently given in the opinion.</p>

TW was an appeal by the defendant from a judgment entered against Min in one of the district courts. The facts are given in the opinion.

<p>Appeal from one of the district courts, upon the grounds stated in the opinion which follows.</p>

The defendant in this action was sued in the Sixth District Court, where a summons was issued for “ a money demand on contract.” The complaint was in writing, as follows: “ The plaintiff complains of the defendant for this, that on or about the 4th day of December, 1852, defendant let and rented unto Jerry Buckley, premises situated in the Third Avenue, agreeing thereby, in consideration of $5 per month, to allow the use of Croton water, yard and woodhouse, and two counters;…

<p>Where stolen goods were sold to the defendant’s wife, who knew of the theft; it was held, that the defendant was not liable to the owner for their value, without proof of a demand upon him before suit brought, there being no evidence that the defendant himself had any knowledge of the transaction.</p> <p>Evidence of the former honesty of a witness, who admits the commiSion, by him, of various larcenies, is not admissible to sustain his character for truth.</p>

This was an appeal from an order, made at special term, overruling a demurrer. The complaint was for goods sold, and was drawn by filling up the blanks in a printed form. The following is an exact copy, the written words being italicized: In the Court of Common Pleas for the eity and county of New Torh. Enoch Chamberlin, John E. Hoagland.and John Bell against John Kaylor and Daniel Kaylor. Complaint for goods sold at different times.

In December, 1851, the plaintiff was at Chagres, in Central America, awaiting a means of conveyance to New York, when a steamer, owned by the defendant, arrived at the former place. The plaintiff thereupon purchased a passage ticket at the office of the mercantile house of Zachrisson, Nelson & Hyams, where a printed handbill, signed by them, in writing, as agents, was displayed, with the words, “ For New York direct.

The plaintiff, in Ms own right and as assignee of several brother mariners, sued the defendant, who was master of the American steamer, “ Baltic,” for wages earned on a voyage from New York to Liverpool.

Shit in the Marine Court, for the value of 3,500 segars claimed by the plaintiff, levied upon and sold under an execution against the property of one Bartlett. The defendant was sought to be charged with the trespass, on the ground that he had executed, as surety, a bond of indemnity, given by the execution plaintiff to the sheriff, upon the latter declaring his intention to relinquish his levy.

The plaintiff, arriving at this port from Europe, went to a house kept by the defendant for the reception and accommodation principally of emigrants. His trunk was taken in charge by the defendant, who placed it in a cellar used as a receptacle for baggage. The defendant gave the plaintiff notice that the cellar would be unlocked and open during a certain time, and advised him to watch for the prevention of loss by theft during such exposure.

This was an appeal by the Hudson River Rail-Road Company, from a judgment of the Marine Court, for damages suffered by the owner of a horse and cart, from a collision with one of the company’s cars, within the city of Hew York.

Appeal by the defendant from a judgment recovered against him by the plaintiff, in the Marine Court. The facts are stated fully in the opinion.

<p>Appeal from the Third District Court, where the defendant was nonsuited in an action for damages for an alleged wrongful detention and conversion of goods. The opinion discloses the material facts.</p>

This was an action upon a promissory note for $1,425 30. The note was payable to the order of Westlake & Coger, who obtained it from the maker, Holloway, with whom they had a running account. The understanding was, that it would be applied to the payment of a bill for iron, amounting to the same sum, due from W. & C. to Grinnell, Minturn & Co., who, however, refused to receive the note.

This was an action upon two promissory notes, both drawn in the following form: “ $539 16. “New Yobk, March 12th, 1850. “Four months after date, we promise to'pay to the order of W. H. B. Smith, at-five hundred and thirty-nine dollars and sixteen cents, value received. “David Hubbell Hott, Chairman of the Ex.

The plaintiff in this action, being a broker, was employed by the owners to sell unimproved real estate in the city of New York, and at the same time authorized to make a loan upon it to the purchaser, upon the conditions hereafter stated.

This action was commenced on the 18th day of March, 1852, for goods sold July lYtli, 1845, and was tried before Judge Ingraham, without a jury. The defence interposed was the statute of limitations. The plaintiff insisted, first, that by the terms of sale, the defendant was to give his note for eight months, and thus, allowing days of grace, that the actual credit did not expire nor the cause of action accrue until the 20th day of March, 1846.

It was said, in the return, that no judgment had been docketed by the clerk of that court, on the decision of the justice. The grounds upon which the appeal was founded were not stated in the notice of appeal, as required by § 353 of the Code, and it did not appear that the appellant had made any payment of the respondent’s costs, pursuant to § 354.

Appeal by the defendant from a judgment against him in the First District Court, for work, labor and services. The appellant produced affidavits to supply alleged deficiencies in the justice’s return, and based his argument in favor of a reversal upon the state of the proofs appearing from the affidavits in connection with the return.

<p>A person cannot be agent for both purchaser and seller, and earn a compensation from each, unless by distinct arrangement between all who are concerned. (See Watkins v. Oousall, 1 E. D. Smith’s C. P. R. 65.)</p> <p>The duties imposed by an employment to sell for the best price are inconsistent with those created by an undertaking to buy upon the best terms; and if one who is employed as agent or broker to make a purchase, accepts from the owner, without the employer’s knowledge, an agency and a commission for selling, he cannot afterwards claim compensation from the buyer.</p> <p>Hence, in an action upon an alleged agreement, whereby A. was to effect the purchase of lots, and the proceeds of a re-sale thereof were to be divided equally between A. and the defendant, the object of the action being to recover for the plaintiff, as assignee of A., half of such proceeds, collected by and in the hands of the defendant; held, (the making of the agreement having been put in issue,) that it was competent for the defendant to prove that what A. did in the matter of the pui-chase was under an employment, by the owner of the lots, to sell them for a .commission.</p> <p>Where two persons agree to share the profits of a contemplated purchase, one of them may not receive, for his separate private use, a commission from the seller. So to take and apply it, would be a fraud upon his associate.</p> <p>Under such an agreement, whatever commission is allowed by the seller, must be charged to the party who receives it, as part of his share of the profits.</p>

This was an appeal from a judgment of the Marine Court, in favor of the assignee of a passenger, against the New York and New Haven Eailroad Company, for the value of a valise. The facts will be seen in the opinion.

<p>The plaintiff, having been nonsuited on the trial of this cause, moved for a new trial. The motion was denied at special term, and the plaintiff appealed. The opinion states the facts.</p>

Action by the father, for the services of a minor son, who had. been apprenticed to the defendant for two years, at a specified compensation for each year. The contract provided that all wages should be forfeited, if the minor should leave the defendant’s employment before the expiration of the .full term, which he did, in consequence of the defendant’s refusal to make any payment of wages while the term was running. One of the district courts gave judgment for the plaintiff.

Appeal by the defendant from a judgment against him, rendered in one of the district courts. The action was to recover $50, as a balance alleged to be due to the plaintiff, for a specific service as a broker in a matter mentioned in the opinion. The facts, forming the basis of the decision in this court, are therein stated.

The plaintiff, in his own right and as assignee of the interest of one Watson, sued the Hew York and Harlem Railroad Company, in the Marine Court, for the value of a package of artificial flowers. The company had an arrangement with Dudley’s Express Company for the transportation of light freight on passenger trains, and each train was accompanied by an agent of the express company.

Action in the Marine Court, commenced June 30th, 1853. The plaintiff claimed that the defendants owed him $125, as a balance due for rent of premises, at the rate of $350 per annum. The defendants contended that the rate agreed upon was $300, and that on the first of May, 1853, they owed for one quarter, $75. It was admitted, at the trial, that this sum “ was tendered before suit brought,” but no money was paid into court.

The papers submitted were the return, a notice of argument with proof of service on the appellant, and written points on behalf of the respondent only.

<p>Where, in blasting rocks on his own lots, an owner threw stones upon an adjoining lot, occupied by a person as tenant, and so extended his blast as to forcibly split out the rock in the lot of such person, undermining the foundations of his house and rendering it insecure; held, that he was liable in damages to the tenant of such adjoining lot.</p> <p>The liability attaches, whether the injuries are committed negligently, or in the use of all reasonable care.</p> <p>The tenant, in such case, recovers for the injury to his possession, not for an injury to the freehold; and he is entitled to whatever damages he sustains by the interference with his possession.</p> <p>Evidence, on the question of the measure of damages, to the effect that one of the conditions of the tenant’s estate in the premises required him to execute the ordinary repairs made necessary by use, would be irrelevant; but proof, that by such condition he was bound to make repairs rendered necessary by causes such as the defendant’s acts, would, it seems, be competent.</p> <p>It seems, that an owner may not be liable for the consequences of mere excavation on his own lot, prudently conducted, although the earth and walls of adjacent premises slide in for the want of protection.</p> <p>Where the owners of a lot gave written notice, in their own name, of their intention to blast rock on such lot; held, in an action against them for injuries caused by the blasting, that the notice was prima facie evidence that they were themselves the actors in the work, and was sufficient to render them liable for damages caused by their agents in executing the same, unless the contract between the agents and owners was proved to be such as would relieve the latter from responsibility. (a)</p>

The plaintiff brought his action for three quarters’ rent from 1st May, 1847, to 1st February, 1848, upon a written lease, not under seal, of a dwelling house and three lots, in the village of Harsimus, New Jersey, for one year from May 1st, 1847, to May 1st, 1848.

This was an appeal by the plaintiff, to the general term, from an order granting a motion to vacate an order of arrest, under circumstances detailed in the opinion, given on the decision at a special term, which is inserted as follows: ■ Woodruff, J. The defendant in this action is an attorney and counsellor at law, residing and conducting his professional business at Memphis, in the state of Tennessee.

Appeal by the plaintiff from an order made at special term, opening the defendant’s default and permitting him to answer.

<p>Moneys illegally exacted by the register of the city of New York, as a condition upon which alone he will permit an inspection of the index to the records in his custody, may be recovered back.</p> <p>A payment to him of an illegal fee, upon his refusal to permit an inspection of the records without it, is not a “voluntary payment” in the eye of the law.</p> <p>In such case, the register cannot protect himself, by averring that he acted as the agent of the city of New York, and has paid the illegal fee into the city treasury.</p> <p>He has no authority from the city to make any but legal charges; and if he exceed such authority, he is personally responsible.</p> <p>Whether any fee, for permitting a person to search in the records, when no actual search is made by the register, is given in the fee bill; (2 E. S. 638, § 40, [§ 30 ;] quere ?</p> <p>If not, then such fee is not “ allowed by law,” within the meaning of 2 E. S., p. 4?3, § 50, 4th ed.</p> <p>The words, “ allowed by law,” in that statute, import some specific provision by law for the service rendered.</p>

This was an appeal by the defendants from a judgment of the Marine Court, in favor of the plaintiffs. The facts appear in the opinion.

<p>Under § 899 of the Code, when the assignor of the cause of action is examined by the plaintiff, the defendant can only offer himself as a witness to testify to the same matter to which the assignor testified on the plaintiff’s behalf.</p> <p>The defendant, in such case, cannot, by cross-examination of the assignor, elicit testimony to other matters, and make such cross-examination the ground of an offer of himself as a witness to such other matters.</p> <p>But where assignors of the claim in suit, being attorneys at law, testified, on behalf of the plaintiff, to a general retainer by the defendant to render legal services in suits affecting the defendant, and that such services were rendered under that retainer, and the value thereof, the plaintiff claiming thereupon to recover what those services were reasonably worth; it was held, that the defendant had a right to offer himself as a witness to prove that he had never employed the assignors under such general retainer, but that their employment was under a special agreement, fixing the terms and conditions upon which the services were rendered. Such testimony goes to the same matter testified to by the assignors.</p>

Appeal by the defendant, upon the facta stated in the opinion which follows, from a judgment of the Second District Court, in favor of the plaintiff.

TW, defendant in this case was sued in one of the district courts, wherfe, in default of his appearance, judgment was rendered against him upon the evidence stated in the opinion of this court, to which he appealed.

The papers in this case are not on file. The action appears to have been brought in one of the district courts, by a tenant against his landlord, for the breach of a covenant or promise to repair the demised premises, alleged to have been made at a period subsequent to the original agreement for the letting; and for damages resulting to the tenant from the untenantable condition of the premises, and from an alleged eviction from a part thereof. ■ Evidence of the subsequent…

<p>It is not necessary that a non-resident, bringing an action in the district or justices’ courts of the city of Hew York, should commence his suit by warrant or “ short summons ” and give security. He may, if he so elect, sue by the ordinary summons.</p> <p>An authority given by a party to his wife, to receive a sum of money for him, does not make the wife his agent, in such a sense that her subsequent declarations made respecting the contract or conditions upon which the money was paid, are admissible in evidence against him.</p> <p>A mere agent to receive money cannot bind his principal by declarations relating to transactions antecedent to the payment, tending to show that the money received is not due. (a)</p>

<p>This was a new suit, commenced after the affirmance, hy this court, of a judgment rendered by the justice of the first district in favor of the defendants, in an action between the same parties. The decision in that case is reported, ante, p. 200. The present suit was commenced in the same district court, for the same cause of action.</p> <p>The facts certified in the return were identical with those stated in the report of the former case, above referred to, except, that in the present case, it appeared distinctly that the blasting, of which the plaintiff complained, was performed for the defendants by a contractor, under an agreement, whereby the work, with the manner of its performance, had been wholly assumed by him.</p> <p>In this cause, the plaintiff had judgment, from which the defendants appealed.</p>

The plaintiff brought his action in the Marine Court, to recover the value of a horse killed by the defendants’ cars, at the junction of 116th-street and the Fourth Avenue, (Harlem,) within the corporate limits of the city of Hew York. The cause was tried by a jury, who found a verdict for the plaintiff.

This was an action in the nature of trover, to recover the value of property levied upon by a constable, under an execution issued upon a judgment of the Marine Court, in favor of one of the defendants, against the plaintiff. The date of the judgment, execution, and levy was September 15, 1851.

Oh the 23d of May, 1849, the plaintiff and one Ralph H. Miller, entered into a written agreement, of which the following is a copy: “This agreement, made this twenty-third day of May, 1849, witnesseth, that Ralph H. Miller, of the town of Waterford, and state of Connecticut, being on the eve of departure for San Erancisco, California, and wanting funds to pay his way there, Gurdon Miller, of the city of Brooklyn, having advanced the necessary funds for outfit and all other…

This was an action against the public administrator in the city of New York, to recover $1,725, collected from the Seamen’s Savings Bank, in the course of his administration upon the effects of one Hugh Roberts, deceased. The plaintiff claimed that the bank book, received by the intestate as his voucher on making the deposit, had been absolutely given to her by him, iif his life time, and that she had thereby acquired a title to the amount standing to his credit in the bank.

<p>Appeal by the defendant, in an action in the nature of the action of trover, from a judgment of one of the justices’ courts. The opinion states the facts.</p>

Action for freight, upon a shipment of sheet iron. The complaint alleged, that the defendant shipped certain merchandise from Liverpool to New York, in a vessel owned by the plaintiffs, and agreed to pay the freight, which, upon the arrival and delivery of the merchandise to the defendant, was demanded ; that the freight amounted to $360, and remained due and unpaid by the defendant.

<p>Action for wages by a laborer employed upon a railroad on the isthmus of Panama. The facts relating to the points decided, appear sufficiently in the above marginal notes or abstracts, and in the following opinions filed on the decision of the appeal, which was prosecuted by the defendant from a judgment of the Marine Court.</p>

<p>Appeal by the defendants from a judgment against them for an alleged unlawful detention and conversion of a draft drawn upon the Royal Bank of Ireland. The case and evidence are distinctly stated in the opinion.</p>

This cause was commenced by a summons issued from one of the district courts. On the return day of the process, both parties appeared, and the plaintiff requested an adjournment, to which the defendant consented. The justice thereupon announced a postponement of the trial, and fixed the time ten days thence. Neither party made objection.

<p>This action was brought to recover damages for the infringement of a trade mark devised by the plaintiff who was a manufacturer of calf skin leather, in France.</p> <p>On the trial, which was conducted before Ingraham, First J., and a jury, it appeared in evidence, that, about a year before the sales by the defendant of skins differently manufactured, but bearing the plaintiff’s trade mark, a new mark had been adopted, and the use of the one in question wholly discontinued by the inventor, Lemoine.</p> <p>One of the sales complained of, was made to the plaintiff himself, through an agent residing in New York and authorized to purchase.'</p> <p>The complaint in the action was verified, by the plaintiff’s agent above mentioned, in an extended deposition, wherein several allegations respecting the' origin of the trade mark, the use thereof by the defendant, and other matters relating to the controversy between the parties, were stated to be true upon the affiant’s own knowledge. Upon the trial, he was called as a principal witness for the plaintiff; and on his cross-examination, the fact was elicited, for the purpose of impeachment, that he did not and could not actually know the truth of several averments made in his verification of the complaint, some of which were shown to be at variance with facts. The verification in question was in the English language, of which the witness, who was a Frenchman, had so little knowledge, that his testimony was necessarily given through an interpreter.</p> <p>On resuming his direct examination, the witness, in answer to questions which were objected to, stated that part of the deposition was read over to him, part in English—which he could not understand—and part in French, before he verified it; that he was not capable of reading it himself; that he did not know what portions were read in the two languages respectively ; and, in reply to the question, also objected to, “ What kind of knowledge did you mean in the affidavit by your own knowledge?” he stated, that he “made a supposition,” from circumstances which he mentioned.</p> <p>The judge charged, among other things, that the defendant was liable for the sale of leather stamped with a former trade mark of the plaintiff, although at the time of the sale the latter employed exclusively a mark of a different device, and that his property in the original trade mark was not divested by discontinuing its use. Also, that the plaintiff was entitled to recover nominal damages, even if a sale was made by the plaintiff’s procurement. The proof of the plaintiff’s property in the trade mark in question, rested solely upon the evidence of the plaintiff’s agent, in reference to which the jury were instructed as follows:</p> <p>“ The witness, Boscher, makes out the necessary proof, if he is to be believed. “Unless the matter of his affidavit annexed to the complaint is explained, he is not entitled to the same credit as the other witnesses. “ That affidavit did not state the truth. “ It is not pretended, on the part of the plaintiff, that it is true. “ It is said, in explanation, that he is a foreigner, and does not understand English, especially when read to him, as it is claimed his affidavit was, and that he confounded knowledge by information, with what is known to the law as personal knowledge. “ But he had no right to swear to an affidavit, the contents of not know, and it is for the jury to say what deg ought to be given him under the evidence point. “ If he has willfully sworn falsely in is not to believed in any thing. “ But if he in one statement, and his testimony is confif other facts in the case, he may be believed, so confirmed.”</p> <p>Exceptions were noted to the submission to the jury of the question of credibility, under the circumstances proved, and other portions of the charge were also excepted to.</p> <p>A verdict was found for six cents. A motion for a new trial, made by the defendant at special term, was denied, and an appeal was prosecuted from the decision thereon.</p>

<p>The court may grant a new trial, as well where the damages are inadequate, as where they are excessive, if the case be such as clearly to indicate that the jury have acted under the influence of partiality, bias, or a perverted judgment.</p> <p>Accordingly, where a recovery was had in an action for the defendant’s negligence, whereby the plaintiff was injured and sustained severe bruises upon his mouth and face, and one of his teeth was knocked out; it was held, that a verdict of the jury for $10 only, was grossly inadequate, and that the plaintiff was entitled to a new trial, on payment of costs, unless the defendant should consent to a material increase in the amount of damages found.</p> <p>Although a motion for a now trial is addressed, in some degree, to the discretion of the court, and it is not essential, on such motion, that a formal exception should in all cases have been entered to a ruling on a question of evidence; yet the court will not feel called upon to relieve a party, in a case where counsel, while testimony has been given which may be strictly inadmissible, have remained silent, without calling attention thereto, or making any objection, and where there is no pretence of fraud or surprise.</p>

Actioít for the conversion of a wagon. On the 4th of October, 1853, one Hanml, for whom it had just been manufactured, executed and crelivered to the plaintiff, under seal, a bill of sale of this and other personal property, the consideration being the cancellation of a note held by the plaintiff against him, for borrowed money. The wagon was retained by one Stuart, the maker, for the price due him, and no change of possession followed the sale to the plaintiff.

<p>The plaintiff brought Ms action in one of the lower courts, alleging a contract, on the part of the defendant, to deliver a certain quantity of “prints,” and averring, as a breach of the contract, that the defendant had not delivered the article called for, but had substituted “ papers.” These were terms given to different qualities of waste paper, by dealers therein, the former word being applied to a (jkality superior to that designated by the latter.</p> <p>The damage claimed, was the alleged difference in value between the article furnished and that required by the contract of sale. The case established upon the trial, appears in the opinions delivered upon the appeal, which was brought by the defendant, from a judgment recovered in favor of the plaintiff.</p>

<p>Two actions, each entitled as above, were brought against the defendant, in the Marine Court, to recover for work performed upon the Isthmus of Panama. The defendant employed, in New York, and took to the isthmus, a large number of laborers. These suits were two of a number prosecuted by several persons on their return to New York, (b)</p> <p>The plaintiff claimed under assignments, executed in the first suit by one Cosgrove, and in the second by one Fagan, both in writing, sealed, and expressing the consideration as of one dollar.</p> <p>In the former, judgment was rendered for the defendant; in the latter, for the plaintiff.</p> <p>Appeals were taken to this court in both cases. Al- ' though now reported together, they were submitted and determined separately. The essential facts of each case are disclosed sufficiently in the respective opinions.</p>

This action was brought by the Mayor, Aldermen, and Commonalty of the city of New York, against a person having charge of the barge “ Mitchell,” to recover the penalty provided in § 13 of the 2d title of the ordinance entitled, “Vessels, wharves, and slips,” passed May 8,1839.

The plaintiff sued as the assignee of a claim of Beebe and Hallet, for one half of a brokerage commission received by the defendant Barnard, on the sale of a house and lot. The defendant and the plaintiff’s assignors were real estate brokers, and the claim was founded upon an agreement which, with the material circumstances of the case, is stated in the opinion. Judgment was given in one of the district courts against the defendant, who appealed to this court.

<p>In the Marine and Justices’ Courts, a recovery may be had upon a quantum meruit for work and labor proved to have been performed, although the complaint is upon a special agreement only, which is not put in evidence; provided the ease is submitted without objection, and decided, apparently, with the whole merits before the court.</p> <p>Under such a state of the pleadings and evidence, the justice, upon the plaintiff’s application, should allow an amendment to the complaint, under the 11th subdivision of § 64 of the Code, and thereupon, if necessary, grant the defendant an adjournment.</p> <p>A party’s books are never evidence of payments made by him.</p> <p>Proof that an employer has regular pay days, whereon his workmen are accustomed to receive their wages, and that the plaintiff has been seen to receive payments on those days, is not prima, fade evidence that work has been paid for, which was performed subsequently to the last day when a payment is shown to have been actually made to him.</p>

This was an application, under § 366 of the Code, founded upon the return of a justice of the Marine Court, and upon affidavits, for relief from, a judgment entered by default. The defendant sought to excuse his failure to appear before the justice, on the ground that the process, if served at all, had not been served properly, nor in a manner calculated to apprise him of the intention to sue. The circumstances attending the alleged service appear in the opinion.

The plaintiff brought suit for commissions in 'obtaining for the defendant as his agent, orders for engraving, die sinking, &c. At the trial, the defendant’s counsel asked a witness, “ What is the usual and uniform rate of commissions allowed by the defendant to his agents ?” The question was objected to and overruled. The case came up to the general term upon the defendant’s appeal from a judgment rendered in favor of the plaintiff.

This was an appeal, by the defendant, from a judgment of one of the district courts, for goods sold. The grounds of the appeal, and the facts relating thereto, appear in the opinion of Woodruff, J.

TWke were both appeals from the Marine Court. In the first case, which was tried before Justice McCarthy, the plaintiff recovered judgment upon a claim, assigned to him by two persons, for certain money collected for their use by the defendant. The plaintiff’s case, after proof of the assignment, was established solely by the testimony of the assignors, given subject to the objection that no previous notice of their intended examination had been served.

This was an action for slander, and came up on an appeal from a judgment against the defendant, upon the verdict of a jury, in the Marine Court. The point decided arose upon the charge of the justice, and is stated, with the evidence relating thereto, in the opinion.

<p>Appeal in an action upon a bond. The facts, so far as they are disclosed in the papers, appear in the opinion.</p>

This action was on a bond, conditioned that a seaman should “ proceed to sea ” in the ship “ Harpy.” The seaman went on board and placed himself under the command of the master. The vessel was afterwards detached from her wharf and hauled out into the stream, where the seaman deserted, on the eve of the intended departure. The First District Court gave judgment for the plaintiff, from which the defendant appealed.

<p>The complaint in this action alleged, that the defendant, being a contractor on the Panama Railroad, entered into an agreement with one Barthley Monahan, to labor on that road as a carpenter, for a specified time, and upon terms which were set forth; that, after working for a few days, an agent, superintending the road, discharged him, without cause, whereby he was thrown out of employment, and subjected to damages in an amount stated; and that his claims for such damages and for wages earned had been assigned to the plaintiff. The answer alleged, that Barthley had himself violated the contract, by uniting with other laborers in a revolt.</p> <p>It appeared from the evidence, that after combining with others to abandon the work, Barthley, with the acquiescence of the superintendent, had returned and resumed it, but was soon afterwards dismissed. There was no proof of renewed misconduct. The Marine Court gave j udgment for the plaintiff. The defendant appealed.</p>

This was an appeal by one of three joint makers of a promissory note, from a judgment against them. The reasons urged for a reversal are stated in the opinion.

<p>A false answer, not verified, is a “sham, answer,” and may he stricken out on motion.</p> <p>So, where several defences are set up in an answer, one or more of them, if false, may be stricken out as sham, and the others remain upon the record.</p> <p>But the Code does not authorize the striking out of one or more allegations forming a part of a particular defence, when the effect may be to change the nature of such defence.</p> <p>A motion to strike out an answer, or a part thereof, as sham, must include at least the whole of one particular defence, or it should be denied.</p> <p>Where a defence is shown to be false by positive testimony, the affidavit of the defendant that he believes it to be true, is no answer to a motion to strike out the defence as sham.</p>

This was an appeal by the plaintiff, from a judgment of the Fourth District Court, in favor of the defendant, upon a demurrer to the complaint. The facts are stated in the opinion of Ingeaham, Feest J.

This action was commenced by the owner of a house and lot against his lessee, and against two sub-tenants, who were respectively in the occupation of separate parts of .the-house. The lease contained a covenant not to assign, and provided that the premises should be kept insured, during the term, for the benefit of the lessor. In case of a violation of either of these stipulations, the lease was to be forfeited and the lessor permitted to re-enter.

Action in the Sixth District Court for work and materials furnished to buildings owned by the defendant. The plaintiffs were carvers, and were employed by contractors engaged in the erection of the buildings in question. The grounds whereon liability on the .part of the defendant was alleged and denied, appear in the opinion.

Ih this case it appeared that a horse, in charge of the defendant’s servant, took fright from the act of a hoy in carelessly throwing down a wheelbarrow, and ran away, bringing a cart attached to him in contact with a horse belonging to the plaintiff. This action was brought for injuries caused by the accident to the horse last mentioned. The plaintiff alleged that the servant did not make proper efforts to secure and restrain the horse in his care. .

This action was brought by a landlord to recover rent due from a tenant upon an ordinary agreement to let.

Actiost in the Sixth District Court for work and labor in painting a portrait of the defendant’s wife. The defendant employed the plaintiff to execute the work, and when it was delivered, declared it “ a first rate portrait,” promised to pay the contract price, directed it to be sent to a frame-maker’s, where it was accordingly sent, framed and returned to him.

This was an action in the nature of trover, to recover the value of a set of four-horse stage harness, levied upon by the defendant, under an execution against a third party. The plaintiff claimed as the assignee of the debtor, under a general insolvent assignment, in trust for the benefit of creditors. On the trial, in the Fourth District Court, the assignor was produced as a witness for the plaintiff, and objected to, but the objection was overruled.

This cause was tried before Dalx, J., and a jury, and resulted in a verdict and judgment in favor of the plaintiff, upon a promissory note, for $857 55. The defence, and the questions arising upon the testimony offered to sustain it, appear in the opinion.

. This was an application made in pursuance of the provisions of the Revised Statutes, allowing a debtor, imprison- ' ed in execution, to petition for his discharge upon making an assignment for the benefit of the execution creditor.

<p>Where the sheriff sells the property of joint debtors, at once, under numerous executions, the title of a bona fide purchaser at the sale will not be invalidated by the fact that some of the executions were issued upon judgments entered on the confession, without action, of one partner against both. It is sufficient to confer title, that a part of the executions were founded upon judgments in actions wherein process was duly served.</p> <p>An owner who has let personal property for a certain term, cannot, while the term is yet unexpired, maintain an action in the nature of replevin against a third person for a wrongful taking.</p> <p>Where a part of property, sold under execution, consisted of stereotype plates, which, although accessible, were not, in accordance with the directory provisions of the statute, in actual view at the time of the sale; it was held, that, although a sheriff cannot sell by sample, yet that, for the purpose of furnishing criteria whether the sale was so conducted as to bring the best price, it was competent to show, that the plates would suffer injury by handling—that impressions therefrom were displayed—and that such was the usual mode of disposing, at trade sales, of articles of the kind.</p> <p>Upon a sheriff’s sale, under execution, of articles constituting the establishment of a publishing house, certain stereotype plates, being part of the property sold, were in a vault connected with the building, but apart from the rooms wherein the sale took place. Held, that the sale would have been void if the vault was locked, or the plates were in such condition that they could not be reached and examined by the persons in attendance; but that the sale was valid if, at the time thereof, an opportunity was given to the purchasers to go and examine the plates, although the same were not immediately in view.</p> <p>In an action to test the validity of a sheriff’s sale under execution, evidence of a negotiation and agreement during the progress of the sale, between certain execution creditors in attendance, whereby it was arranged that a party, in view of specified considerations, was to bid in the property, with the alleged object of preventing a sacrifice, is admissible.as part of the res gestee, and is proper to repel any presumption of fraud.</p> <p>Where, at an execution sale, different articles were disposed of in one lot, with the debtor’s assent and at the request of judgment creditors and others interested, who were present; it was held—there being no proof of bad faith—</p> <p>■ that evidence of the mere intention of persons attending the sale to purchase, in case the property had been sold in separate parcels, was incompetent.</p> <p>In an action of replevin, to obtain property purchased at an execution sale, how far the questions, whether there was an intent to defraud creditors— whether the property was within view of those attending the sale—whether it was offered in such lots and parcels as were calculated to induce the highest prices—and whether the plaintiff has in any manner parted with his present interest in the property in such wise as to bar his prosecution of the suit, are questions of fact for the jury ? Quere.</p> <p>In submitting to a jury a question of fact, a judge may add the expression of his own opinion, in relation thereto, upon the testimony; and such an exercise of his discretion forms no ground for exception.</p>

The complaint in this action alleged, “That while the steamboat South America, whereof the plaintiffs are owners, was proceeding on her trip or passage from New York to Hudson, on the night of the 3d of November, 1851, sailing against the wind, the schooner ■ Celeste, whereof the defendant was owner, while proceeding on her passage from Albany to New York, and sailing free before the wind, by and through the carelessness of the said defendant and his agents or servants, came…

Tras was an action in the nature of trover, to recover $11,000, as the alleged value of an extended list of articles, enumerated in a schedule annexed to the complaint. The property consisted chiefly of the machinery employed in an iron and anchor manufactory; but the list contained some manufactured articles, with bars and anchor iron, and also a coal house, barn, office, and a building or shop 150 feet in length by 45 feet wide.

<p>Tras action was brought by the plaintiff, as assignee of John M. Trimble, an architect, for labor and materials furnished in the erection of the Broadway Theatre, Hew York. The case came up to the general term, upon the defendant Raymond’s appeal from a judgment for $4,874 18 damages, and $644 91 costs, entered against both defendants, upon the report of E. 0. Benedict, Esq., sole referee, by whom the cause was tried. The grounds of the appeal are stated and sufficiently illustrated, in the opinion of the court.</p>

Action against a judgment debtor and his sureties, upon a bond or instrument given by him to the sheriff as security for his appearance on the return of an attachment issued against him for a contempt, in proceedings supplementary to execution.

This action was brought by the Fire Department, to recover the fixed penalty of $500, and the continuing penalty of $50 per day, provided by the “ Act for the more effectual . prevention of fires in the city of New York, and to amend,” &c., passed March 7, 1849.

This was an action against an insurance company located in the county of Wayne, in this state, and was commenced by serving a summons upon one Van Wart, the agent, in the city of New York, of several distant corporations. A judgment having been entered by default, the defendants, in December, 1853, obtained an order to show cause why it should not be vacated for irregularity.

<p>Appeal from, an order at special term. The facts are stated in the opinion.</p>

<p>An occupant of a house, damaged by blasting, may maintain an action for the injury to his possession, whether he is the owner or merely a tenant, (a) Accordingly, in such an action, the title to real estate does not necessarily come in question, so as to oust a justice’s court of jurisdiction.</p> <p>Evidence that a party gave orders concerning, and superintended the Masting, is sufficient, ■prima fade, to sustain a judgment charging him with damages caused thereby, without proof respecting the contract or capacity under wMch he acted.</p>

Action by the assignee of a claim for rent. The cause was tried before one of the justices of the Marine Court. The defendant recovered a verdict and judgment upon the set off mentioned in the opinion. The plaintiff appealed.

The plaintiff being the assignee of a claim for the construction and delivery, pursuant to contract, of patterns for a gas meter, commenced this action in the Marine Court. The complaint was for work, labor and materials; and the plaintiff’s case was sustained, in part, by testimony of the wife of the assignor. The defendant suffered judgment, and appealed to this court.

<p>Appeal by the defendant, upon the ground stated in the opinion, from a judgment of the Fourth District Court.</p>

Appeal by the defendant, from one of the justice’s courts, where a tenant recovered judgment against a landlord, for a forcible ejection of the plaintiff’s family and effects from the demised premises.

The plaintiff was the second endorsee of a promissory note, made by two of the defendants to the order of the third, by whom it was endorsed to one Swords. The defence was, that the note was made and originally endorsed for the accommodation of the immediate parties thereto, for the purpose of raising money, and that it was discounted by Swords at a usurious rate. The note was delivered by the makers and the payee to one Inglee, a broker, to be negotiated.

Action for commissions on the negotiation of a sale and exchange of certain houses and lots. The Marine Court gave judgment for the plaintiff. The case came up on the defendant’s appeal; when it appeared that, instead of the usual original return, there had been filed a copy containing the testimony at length, and the decision of the justice, but no abstract of the pleadings or statement of the issues involved in the cause.

Motion, by an owner, to vacate a judgment, recovered by a sub-contractor, under the lien law of 1851. The opinion states sufficiently the facts of the case and the grounds of the application. The defendant insisted, 1st. That the judgment, being entered against him generally, was irregular in form; and 2d. That if not vacated on that account, it should be reduced to the sum mentioned in the notice of lien, exclusive of costs.

Action in one of the district courts, by a laborer upon a building, against a contractor employed by the owner in its erection. The plaintiff filed a notice of claim and created a lien upon the building. Afterwards, without proceeding to foreclose the lien, he sued the contractor in the ordinary form for a balance due, and recovered judgment, from which an appeal was taken.

TW plaintiff sold and delivered to the defendants, upon their joint order, lime, cement and laths, which wei;e used in the erection of a building owned by the defendant, Ehle. The notice of claim, prescribed in the sixth section of the mechanics’ lien law of 1851, was filed by the plaintiff, and a lien was effected upon the building for the price of the materials furnished as above stated.

Osr the 30th of August, 1853, the defendant, Clark, being the owner in fee of land in the' city of New York, entered into a contract with the defendants, O’Brien and McNeven, of which the provisions were as follows : 1. Clark covenants •.to sell to them the land, at the price of $4,500, with interest, payable half yearly, from November 1st, 1853; and 2.

The plaintiff in this action, having performed labor and furnished materials in the erection of a building, “ by virtue of a contract with the owner thereof,” filed with the county clerk a notice to effect a lien, pursuant to the sixth section of the act of 1851, “ for the better security of mechanics and others,” and served notice on the defendant, who was the owner of the premises, to appear and submit to an accounting, as provided in the fourth section of that statute.

The defendant, McOliff, was a contractor with the corporation of the city of New York for the repair of a public building owned by the latter.

One Peter Morris, being the owner of a lot of land in the city of-New York, entered into a contract with Carpenter & Jaques, builders, for the erection of a house thereon, and the latter agreed with Jaques & Mooney, stone-cutters, for brown stone to be used in the construction. The stone was furnished in alleged conformity with the agreement.

Appeajl, by the defendants, from a judgment rendered against them, in proceedings under the “ act for the better security of mechanics and others,” passed July 11, 1851. From the 10th of June to the 8th of July, 1854, the plaintiff, under the employment of Thomas Larkin, performed labor upon buildings owned and in course of erection by the latter, in the city of New York. Larkin was also the owner, in fee, of the land on which the building stood.

Demurrer to complaint in an action under the statute for the better security of mechanics and others, passed July 11, 1851.

Motion to vacate an ex parte order, granted in a proceeding under the l The plaintiff, Thomas Butler, having furnished granite and performed labor, pursuant to a verbal agreement with the defendant, Joseph Naylor, and in conformity with a contract made by the latter for the erection of a building on a lot of ground owned by the defendant, David Magie, at the corner of Water and Moore streets, filed with the county clerk, on the sixth of September, 1854, the notice prescribed…

This was a proceeding under the “act for the better security of mechanics and others erecting buildings and furnishing materials… Held: in substance, that the notes of the owner for his own debt did not constitute an absolute payment, but merely suspended the right of action until their maturity; that taking such notes did not divest the contractors of the right to acquire a lien, even before their maturity, but merely suspended the right to enforce it; and that the…

The evidence in this case disclosed the following facts. In 1852, or early in 1853, the defendant, William H. Paine, made a valid written agreement to sell six lots, on the Fifth avenue, New York, to one Moses Larkin, and to advance money to aid him in improving the property, the purchase money and advances to remain, for a period, in part unpaid, and secured by bond and mortgage.

These actions were brought to foreclose liens effected, under the act of 1851, “ for the better security of mechanic's and others,” for the value of labor and materials furnished by the respective plaintiffs, pursuant to the employment of the defendant, Hanlon, and in conformity with a contract between the latter and his co-defendants, the' Trustees of the Yorkville Baptist Church.

Tras was an action upon the case, brought in the New York Court of Common Pleas, in 1815, under the provisions of the “ act for the better security of mechanics and others erecting buildings in the city of New York,” passed April 20, 1830, (Laws of 1830, p. 412,) to recover for work, labor and materials bestowed in flagging the sidewalks, yards and areas of thirteen houses in the city of New York.

This was an appeal from the general term of the Hew York Common Pleas, affirming the judgment of the special term, dismissing the complaint of the plaintiffs and granting judgment in favor of the defendants, in an action brought under the provisions of the “ act for the better. security of mechanics,” &c., passed April 20,1830, as amended April 13,1832, to recover the value of certain work performed and materials furnished by the plaintiffs, and used in the erection of a…

The action in the court below was prosecuted to enforce a lien upon a building and lot, owned by the defendant, pursuant to the act entitled “ an act… Held: as matter of law, that the plaintiff had not acquired a lien upon the building, and decided that the defendant was entitled to judgment, which was accordingly entered, and the judgment was, on appeal, affirmed at a general term; upon which the plaintiff appealed to this court. The case was submitted upon printed points.

In June, 1854, the school officers of the nineteenth ward, in the city of New York, entered into a written contract with the defendant, Patrick McAuliffe, for the erection of an edifice in 51st street, in accordance with certain plans and specifications. In July ensuing, the contractor employed the plaintiff to perform labor and furnish materials in the construction of the building, which he did, to the amount and value of $1,548 66.