Volume 2 — Hilton's New York Reports

The plaintiff sued as assignee of certificates of stock in the “Greenwich and California Mining and Trading Company,” an nnincorporated association. His complaint averred that the assets of the company had been sold, and the proceeds delivered to defendant, as treasurer of the company, and that defendant had promised to pay over the fund to the shareholders at the rate of $189.96 per share. It also averred the transfer of certain shares to the plaintiff.

<p>In an action, brought by the assignee of the lessor against the lessee, to recover rent on a covenant in the lease, the defendant cannot show a breach by the original lessor of a parol agreement to make repairs, entered into subsequent to the making of the lease.</p> <p>The liability of an assignee of a lease upon the covenants real annexed to the estate and running with the land, (under 1 Eev. Stat. 141, §§ 23, 24, 25,) extends only to covenants broken while he remains possessed of the estate. He is not chargeable for a breach of covenant which happened previous to the assignment.</p> <p>In an action brought by the assignee of the lessor, against the lessee, to recover rent on a covenant in the lease, defendant offered to show that, during his occupancy, he did not have possession of a part of the demised premises; but this fact was coupled in the offer with an agreement by the lessor as to the allowance to bo made for defendant’s damages in that behalf.</p> <p>Held, that, from the offer thus made, it appeared that the deprivation occurred during the defendant’s occupancy under the original lessor, and that the evidence was properly excluded. The offer should have been, to show an exclusion since the assignment to the plaintiff.</p>

Appeal, by the defendant, from a judgment against him rendered by the Third District Court. The facts appearing by the return are sufficiently stated in the opinion.

<p>An action may be maintained to recover back a part payment made upon an executory contract by parol for the sale of land, where the purchaser was induced to enter into the contract by a false representation by the vendor as to a material fact.</p> <p>Whether such an action can be maintained where the contract is free from fraud, and the vendor is able and willing to perform,—guare? Per Daly, First Judge.</p>

<p>In an action commenced in the Marine Court by a summons wMch required the defendants to answer “ a complaint for a money demand on contract,” the plaintiffs, on the return of the -summons, the defendants having appeared, applied for leave to amend it by substituting the words “ an injury to personal property ” for “ a money demand on contract.” The court permitted the amendment, and the defendants excepted.</p> <p>Held, on appeal, that permitting the amendment was an act of discretion on the part of the court below, which was riot properly the subject of review.</p>

<p>To maintain an action on contract, it must appear that the plaintiff is the only person possessed of any ownership or interest in the demand; so that, on a recovery and subsequent payment, all rights of action in respect to it will be barred as against the defendant.</p> <p>"Where plaintiff sued as assignee of a demand which originally accrued to two partners, but the assignment proved was executed by but one of the partners, and purported to transfer only Ms “ right, title, and interest ” in tho claim, and there was no proof that the partnership had been dissolved, or that the claim was ever vested in the partner making the assignment, or that tho other partner had ever done any act which would estop him, or would vest his interest in the assets of the firm in his partner, held, that the plaintiff could not maintain his action.</p>

<p>Express companies who receive and agree to transport goods or packages from place to place for hire, in the ordinary and approved means of conveyance, are common, carriers, although they are not owners of, nor interested in, the conveyances by which the goods are transported,—disapproving HersfiM v. Adams, 19 Barb. 577.</p> <p>A forwarder is one who, for a compensation, takes charge of goods entrusted ox-directed to him, and forwards them; that is, puts them on the way to their place of destination by the ordinary and usual means of conveyance, or according to the instructions ho receives. His compensation is limited to his care and trouble, and the charges paid by him in receiving, keeping, and duly forwarding; and, when he has placed the goods in the course of transit by the proper conveyance, his duty is at an end. He has no interest in, and receives no part of the compensation paid for the carriage and due delivery of the goods.</p> <p>A common carrier is one who, for a reward, undertakes to carry goods for persons generally, as a public employment. It is the receipt of, or the right to, the freight or charge for the carriage of goods, together with the public nature of their employment, that constitutes them common carriers.</p> <p>The U. Express Co. received certain boxes of fruit, which they agreed, by a receipt in writing, to deliver at the depot at H. within twelve days, on payment of freight, stipulating against accidents and casualties beyond their control, and particularly that their guaranty of special dispatch should not cover eases of unavoidable or extraordinax-y casualty. They also stipulated that fruit should be at the owner's risk of transportation, loading, and unloading; that they would not be liable for injury to any articles of freight, during the course of transportation, occasioned by the weather, or accidental delays, or natural tendency to decay; that they would pay five cents per 100 pounds for each day the goods were delayed beyond con-. tract time, and that all claims for damages, &c., should be presented for settlement at their office in Hew Tork. They shipped the fruit so received to M., the place of its destination, via the H. T. G. RR. and the G. W. RR., -with which roads alone they had any arrangements for transportation. Eor nearly two months prior to. their taking" the fruit in question, the G-. W. RR. Co. had been unable to receive freight as fast as the H. T. C. RR. delivered it, and, in consequence, there was a great accumulation of it, and a delay of at least ten days, on the average, in the transportation. The fruit in question was, in consequence, delayed over twenty days upon the route, and was nearly ruined by decay when it reached M. There was another road by which the fruit might have been sent, but the U. Express Co. had no arrangements for transportation with that road. In an action against the U. Express Co. to recover damages for the injury to the fruit, held,—</p> <p>I. That the defendants’ agreement to deliver the freight received, according to the conditions of their tariff, classification, and rules, rendered them liable as common carriers for the safe carriage and delivery of the goods, and subjected them to the liability incident to that employment, except so far as it was limited by express stipulation.</p> <p>II. That proof by the consignee that he did not receive the goods within the time specified, coupled with evidence that a part of them did not arrive, was sufficient evidence of the failure of the defendants to deliver at the depot at SI., to throw on them the onus of showing when the fruit did arrive at the depot. It was a matter peculiarly within their knowledge, and slight evidence on the part of the plaintiff was therefore sufficient to throw on them the burden of proof.</p> <p>III. That the defendants were liable for the decay of the fruit. The clause providing that they should not be liable for natural decay, must bo understood as applying to decay to which the fruit might be subject during the prescribed time within which the defendants undertook to deliver it at St, not to such as was occasioned by the defendants’ delay.</p> <p>IV. That the clause providing that the defendants should pay five cents per 100 pounds for every day the goods were delayed beyond the time fixed by the contract for delivery, did not limit the liability of the defendants thereto. They were liable in that amount whether the plaintiff suffered any loss by the delay or not, and were also liable for any actual damage to the fruit occasioned by such delay. That clause in the agreement applied only to oases where the property was delivered xminjured, but after the contract time.</p> <p>V. That it was not necessary for the plaintiff, as a condition precedent to the defendants’ liability, to present the claim for settlement to them, at their office in New York. In order to avail themselves of any defence arising under the clause of the contract providing for such demand, it was necessary for them to plead a readiness to pay the amount of damages at such place, and follow it up by a tender of the amount in court.</p> <p>VI. That the facts shown as being the cause of the delay did not prove that it was the result of an accident or casualty beyond the defendants’ control. It was their duty to have known.the conditions and possibilities of transportation upon the routes over which they-were accustomed to transport their goods, before entering into a contract to deliver within a specified number of days; especially so when the cause .of the detention was a disarrangement and want of facilities upon one of the roads not of a sudden development, or of a temporary duration, but one that had existed for some time prior to their making the contract.</p> <p>Where there is a special contract to .carry within a prescribed time, the carrier is held to .a rigid.performance of it, and is not excused even by inevitable necessity, unless he has provided against it by positive stipulation.</p>

Appeal by defendant from a judgment of the Fourth District Court. The action was brought to recover for broker’s commissions. Judgment was rendered for the plaintiff. The facts in the case are fully stated in the opinions of the court.

<p>Where a party has been injured by a collision upon a public highway, he cannot maintain an action if the facts show that he has in any manner, by his own carelessness or neglect, contributed to or caused the injury of which he complains.</p> <p>M. left his horse and cart standing- upon a public pier or dock, within two feet of the edge, at a timo when the pier was crowded, and there was room for only one horse and cart to pass upon it. The horse’s bit was out, and he was feeding. The defendants’ cart, passing, came in contact with M.’s cart, and threw it and the horse into the river, where the horse was drowned.</p> <p>Eeld, that M. could not recover therefor. He was not only obstructing a public highway, but was guilty of gross negligence in leaving his horse at the edge of a dock, after removing the bit, the only thing by which the animal could, in case of accident or emergency, be controlled.</p>

<p>The intentional doing of a wrongful act with knowledge of its character, and without cause or excuse, is malicious.</p> <p>Malice is of two kinds: malice in law—which is inferred from an act unlawful in itself, and injurious to another; and express or actual malive—which relates to an actual state or condition of mind to be established as matter of fact by the circumstances of each case.</p> <p>It is not necessary, to constitute express malice, that the act should proceed from hatred or ill-will. It may be inferred from an apparent mischievous intention of the mind, or from inexcusable recklessness.</p> <p>E. and L., being engaged in a game of shooting at a target by blowing a sharp arrow of steel through a tube, L. blew through the tube at B., and, notwithstanding the repeated remonstrances of E. and others, continued to do so until at last the arrow struck E. in the eye, severely wounding him so as to confine him to bis bed for nearly four months and a half, and to cause the total loss of the eye.</p> <p>Held, under the circumstances, sufficient to warrant an inference of actual malice, and to justify a verdict for vindictive damages.</p> <p>The judge at the trial charged the jury that if the injury was purely the result of an accident, the defendant was liable only for actual damages; hut, if the defendant acted with the intention of annoying, harassing, or teasing the plaintiff, then the rule would be different; and in the latter case, even if the injury was unintentional, the jury might give more than the actual damages—they might give “smart money.” HeZcZ, correct.</p> <p>In actions for injuries to the person or character, it is not possible, in the nature of things, to ascertain or measure the extent of the injury by any absolute pecuniary standard. In such cases, the damages cannot be fixed and established in money by the evidence. The law cannot repair what has been done, or replace the party in so good a position as he was. All that it can do is to compel the party who did the injury to make a pecuniary satisfaction; and, in ascertaining what it shall be, all the circumstances under which the injury occurred, are to bo considered.</p> <p>In an action to recover damages for an injury to the person of the plaintiff, by the unlawful and malicious act of the defendant, it is neither a defence nor matter in mitigation that the plaintiff was engaged in an unlawful game upon the Sabbath at the time of the injury.</p>

This suit was originally commenced in the name of Hermann Ludewig as plaintiff, and, under the title of Ludewig v. McDonogh, was on the calendar. After issue joined, Ludewig died, and the present plaintiff was substituted. The defendant put in a new answer, denying, among other things, the appointment of administrator ; but the cause was not put upon the calendar under its new title. The cause being reached by its original title, an inquest was taken.

Appeal, by defendant, from a judgment of the Marine Court at general term. The action was brought by the plaintiff, as assignee of Catherine Sturtevant, to recover $305.10 alleged to be due her for board. Mrs. Sturtevant kept a boarding house on Staten Island. On July 3d, 1856, the defendant applied to her for board for himself and wife, and family—in all, six persons.

The action was for goods sold and delivered. The cause was referred, the referee reported in the plaintiff’s favor, judgment was perfected upon his report, an appeal was taken therefrom, and, on the appeal, the judgment was reversed, and a new trial was ordered. The order, omitting the recitals, was in the following words: •* * * “It is this day ordered that such judgment be reversed, and case referred back to the referee, either party to produce -further testimony.

<p>Appeal by defendant from a judgment of the Third District Court. The facts of the case are fully stated in the opinion.</p>

Appeal by defendant from a judgment of the Marine Court at general term. This was an action to recover for broker’s commissions earned by one-- Britton, and assigned to the present plaintiff. The defendant applied to Britton to procure him a loan on two houses in Twentieth street, New York city. The application was in writing, and was signed by S. B. Feet.

<p>The defendants, as shipping masters, agreed with P. to procure him employment on board a certain vessel, as carpenter for the voyage, at $23 a month, and to notify him of the sailing of the vessel in time to enable him to get on board. They failed to give him timely notice, and the vessel sailed without him.</p> <p>In an action upon the contract, where it appeared that the breach complained of resulted in aloss of employment by P., attended by inability to obtain other service,</p> <p>Held, I. That the damages recoverable were the same as if the service of P. under the agreement had actually commenced and he had been improperly discharged.</p> <p>H. That proof of a custom that shipping masters, in such cases, act as agents of the captain of the vessel, was inadmissible.</p> <p>III. The action being brought before the term of the employment agreed upon expired, the recovery was limited to the damages sustained up to the time of the trial.</p>

The action was brought against the proprietors of the New York Times, to recover for the services of plaintiff in the preparation of an article published in that paper. On the trial before the justice, the plaintiff was sworn in his own behalf. He testified to having seen in the Times a standing notice that voluntary correspondence containing important news, was solicited, and, if used, would be liberally paid for. In consequence, he prepared the article in question.

Appeal by defendants from a judgment of the First District Court. This action was brought to recover damages for injuries occasioned to the plaintiff’s house in the building of a sewer.

Appeal by defendant from a judgment of the Third District Court. The action was brought by the plaintiff upon a judgment recovered by Grershom A. Seixas, against the defendant Amasa B. Howe, on the 16th day of December, 1857, in the First District Court, for the sum of $24.25, and assigned to the plaintiff. The only question was, whether he could maintain the action without showing leave of court first obtained to bring it.

Appeal by plaintiffs from an order at special term, setting aside a judgment and permitting the defendants to defend. The defendants moved to dismiss the appeal.

Appeal by defendant from a judgment of the First District Court. In May, 1856, the plaintiff delivered to the defendant’s express, running between New York and Bloomfield, a cask of crockery to be carried to one A. Livingston, with directions to collect the bill therefor on delivery. A Mr. Kent was employed at the time as the driver of the express.

Appeal by plaintiff from a judgment of the court at special term dismissing the complaint. The plaintiff brought this action as receiver of Daniel Adee, appointed after the return of an execution unsatisfied in favor of R. J. Richards. The complaint alleged that Adee, on the 8th of February, 1851, purchased of the defendants and paid them for a certain judgment, which they were about to obtain against A. IT. Metcalf, on notes endorsed by Adee.

Appeal by defendants from a judgment upon a trial before the court without a jury. The facts are fully stated in the opinion of the court.

The action was brought against the defendant as endorser of a note for $200, made by one James Pelton. It appeared that Jacob D. Mills, a brother of the defendant, applied to the plaintiffs for a loan of $500. The president of the plaintiffs told him to get the defendant’s name as collateral, and the bank would make the loan.

This was an action upon a promissory note. The defence was a release under the two-thirds Act. An answer setting up this release was drawn and verified in season for service, and was left by the defendant’s attorney with his clerk to serve, he himself being called from town.

<p>Appeal by defendant from a judgment entered on the report of a referee. The facts are fully stated in the opinion of the court.</p>

Appeal by defendants from a judgment of the Second District Court. The facts are fully stated in the opinion of the court.

Appeal, by defendant, from an order granting a new trial. This was an action against the defendant as sheriff of the city of New York, to recover damages for an alleged escape of a prisoner.

Appeal by plaintiff from a judgment of the First District Court. The facts are fully stated in the opinion of the court.

Appeal by defendant from a judgment of the Marine Court. The action was brought to recover the sum of $300, broker’s commissions on the sale of a house belonging to the defendant. The only question in the case was whether the sale was effected through the plaintiff, or through one dentworth, another broker. Judgment was given for the plaintiff for the fall amount claimed, which was affirmed by the general term of the Marine Court. The defendant appealed.

Appeal by plaintiff from a judgment of the Third District Court. The facts are fully stated in the opinion of the court.

Appeal by defendants Born a judgment of the Fourth District Court. This action was brought to recover for services rendered ■ to the defendants, as their clerk, for the months of October, November, and December, 1857.

This cause came before the general term on a verdict for plaintiffs, taken subject to the opinion of the court upon questions of law reserved. The action was brought to recover upon a policy of insurance made by defendants. This policy covered shipments already made, and others to be made, by plaintiffs, and reported to the company, and endorsed by them on the policy.

<p>Appeal by defendants from an order confirming a referee’s report, and from judgment entered thereon. The facts in this case, and the way in which it came before the court, are fully stated in the opinion.</p>

Appeal by defendants from a judgment of the Marine Court. The action was brought to recover brokerage claimed by plaintiff under a special contract. On the trial, judgment was rendered in favor of the plaintiff, which was affirmed by the general term of the Marine Court. The defendants appealed. The facts out of which the claim arose, and the contract relied upon, are fully stated in the opinion of the court.

The affidavit of George Carpenter, the appellant’s counsel on the former hearing of this case, showed that he had been led to believe the argument of the appeal would go off for the term, by consent; and, in consequence, did not make due prejDaration for the argument.

Appeal, by plaintiffs, from a judgment upon a verdict. The action was brought to recover for goods sold and delivered. It appeared that, on October 3d, 1854, the defendants ordered from the plaintiffs seventy-six cartons of black velvet ribbons, to be ' procured by plaintiffs from France. The written memorandum, given by defendants when ordering the goods, specified the quantity and description of ribbons desired, but was silent as to quality.

Appeal by defendant from a judgment of the First District Court. This action was brought to recover $43.23, freight on niuety-eight casks of ale. On the 17th of January, 1858, the ship Harriet Hoxie arrived in this port, having on board, among other cargo, a consignment of ninety-eight casks of ale to the defendant. On the 22d she commenced unloading, and on the 23d the ale was landed.

<p>In an action for damages for the unlawful conversion of certain goods, it appeared that the goods in question were sold by the plaintiffs to the defendants, on an agreement that they were to be paid for in cash. Previous to delivering the goods, the plaintiffs made inquiries, in respect to defendants, as to whether they could be “trusted with a cash article,” &e.; and, receiving a favorable answer, the goods were sent to defendants’ store, by a cartman, in the ordinary way. Bills wero sent in on the same day, followed by a call for the money on the day following, and on several days after. Defendants, however, refused to pay cash, but offered certain bills of exchange, drawn by plaintiffs, for a part of the amount, and the balance in cash.</p> <p>Held, that this evidence did not show an unqualified delivery of the goods, but that it was a proper question for the jury, whether, in making the delivery, the plaintiffs intended to waive the condition for payment in cash; and that a motion to dismiss the complaint, on the ground that the evidence showed an unqualified delivery, was properly denied. Daly, F. X, dissented.</p>

<p>On a cash sale to a solvent buyer, where there is no fraud used to obtain possession, but the goods are voluntarily delivered in the usual and ordinary course of business, the title passes to the buyer by the act of delivery, and he has, with the possession, the right of immediate disposition, unless there are circumstances clearly showing that it was the intent of the parties that no title should pass until the cash was paid.</p> <p>The mere fact that the sale was for cash, will not, of itself, be sufficient to warrant the legal inference that the delivery was conditional, and that no title was intended to pass to the buyer until the cash was paid.</p> <p>As a general rule, on a sale of chattels, where no time is fixed for payment, payment and delivery are to be simultaneous acts, and the seller is not bound to deliver until payment is tendered.</p> <p>But this rule is not applicable to the case of a sale of a large quantity of merchandise, the delivery of which may occupy considerable time, and in which some period must also intervene to enable the buyer to ascertain the correctness of the weight, to adjust the tare upon the different packages, and generally to ascertain the quality and condition of the merchandise received.</p> <p>Where a custom is shown of allowing a buyer of merchandise a certain time to examine the quantity and condition of the goods delivered, during which no interest is charged on the purchase money, and the buyer is allowed to sell the merchandise freely, as well before as after payment, the parties must be regarded as contracting with reference to this usage; and, in such a case, though the merchandise be sold for cash, the title will pass upon delivery, although the cash is not paid.</p> <p>Eull effect should be given by the court to any commercial usage which recognizes the right of property as in the buyer, where it is voluntarily delivered to him, untainted by fraud and untrammeled by conditions, whether it be what is termed a cash sale, or a sale upon time.</p> <p>The reasonableness and propriety of such a usage considered.</p> <p>If a sale is conditional, the seller is bound to exact the performance of the condition,, either at the time of the delivery, or very shortly thereafter; or he will be deemed to have waived it.</p> <p>Upon a cash sale, the acceptance of a part of the purchase money is a waiver of the right to reclaim the goods, and perfects the buyer’s title even though the delivery was conditional.</p> <p>L. & W. sold to F., on the 1st of March, 312 tierces of lard for cash, which they proceeded at once to deliver to him, and which he proceeded to sell again to others. On the 5th of March, having 50 tierces remaining, he delivered 44 of them, together with another lot, all being included in one invoice, to R., as collateral to secure the repayment of certain advances. On the same day, L. & W. presented their bill to F. for payment, and, on the 9th or 10th, F. made them a part payment on account. A few days later, he gave them his check, post dated, for a part of the balance, but before its maturity he failed, and made a general assignment, for the benefit of his creditors, to L. In that assignment the claim of L. & W. was placed in a second class of preferred creditors, and 24 per cent, was thereafter paid them under the assignment. It appears that, by usage in the city of New York, from a week to ten days is given to buyers, in the case of cash sales, to examine and weigh the merchandise, &e., during which time it is customary for them to treat with and freely sell it, as well before as after payment. Held,</p> <p>I. That the parties must be regarded as contracting with reference to this usage, and must be governed by it.</p> <p>IL That the sale could not be regarded as conditional, but that the ownership and title passed to F. at the time of delivery.</p> <p>IU. That if it were otherwise, the acts of L. & W. in accepting a part payment and in taking the per centage under the assignment, and the act of L. in accepting the trust reposed in him by the assignment, were inconsistent with the idea that the sale was a conditional one, and waived any right to reclamation, even if otherwise they had possessed such right.</p> <p>The cases upon the question, “What constitutes a conditional, and what an absolute sale?” collated and examined.</p>

Appeal, by plaintiff, from a judgment of the First District Court. The action was brought by the plaintiff, as assignee of one S. F. Mossman, who kept a bullion office. The defendant is proprietor of a hotel, and W. S. Bennett was, in January, 1858, Ms bookkeeper and bartender.

The plaintiff is the general assignee, for the benefit of creditors, of Marianna and Elizabeth De Young, and brought this action to recover for goods alleged to have been entrusted by the De Youngs to the defendant Maria Waas, as their agent, to be sold upon commission. The plaintiff obtained an order for the arrest of the defendant Abraham Waas.

Appeal by plaintiff from, a judgment entered on the report of a referee. Held: that where the goods which were the subject matter of the sale, were not to be delivered till a future day, as one of the three things required by the 17th section (of the English statute, which is the same substantially as ' the 3d section of our present statute,) viz., a part acceptance could, not be complied with at the time of…

Appeal by plaintiff from a judgment of the Marine Court at general term. On or about the 19th day of May, 1856, two attachments against the property of Joseph Crawford were duly issued h}' and out of the Marine Court of the city of New York to the plaintiff, as constable, one of which attachments was at the suit of Skelding & Thorp, for $279.17, the other at the suit of John Anderson, for $208.85.

Appeal by defendant from an order at special term refusing a motion for a new trial. This action was brought to recover three weeks’ rent under the following agreement: Memorandum.of an agreement between the New York Academy of Music and James H. Hackett, for a lease of the Academy for a period of two months from the first day of October, one thousand eight hundred and fifty-four. 1.

There were two actions commenced in the Marine Court, where the plaintiffs had judgment. The defendant appealed to this court, where the judgments were affirmed. The defendant now applied, under section 11 of the Code, for leave to appeal to the Court oí Appeals. The question raised upon the appeal was, whether the Marine Court could acquire jurisdiction of an action against a non-resident defendant who was proceeded against by long summons?

Appeal by defendant from an order at special term, striking out part of an answer as irrelevant. The complaint was against the defendant as indorser of a promissory note.

The action arose out of the proceedings of the so-called Vigilance Committee of San Francisco, in California.

The action was brought to recover damages, laid in the complaint at $800, for killing a horse belonging to plaintiff) through the negligence of defendant’s servants. The pleadings did not show where the plaintiff resided. They showed, however, that the defendants were a corporation created by the laws of New Jersey, but having an office, and owning property within this state. The alleged killing of the plaintiff’s horse took place in New Jersey.

^ed in favor of the defendant for his costs, as adjusted, after deducting therefrom the amount,, reported by the referee as due'the plain tiff in the action. The facts sufficiently appear in the following opinion A the judge who heard the motion at special term, May 8, 1858. ‘J'-'

The action was brought on a draft or bill of exchange, drawn by defendants at Wellesville, Ohio, in favor of the plaintiff, a resident of Ohio, on Atwood & Co. of Hew York. It appeared that the plaintiff had retained the bill some nine or ten days before sending it on to be presented. It was finally presented to the drawees, but they had failed two days before the presentment, and payment was therefore refused.

The action ivas brought to recover for goods sold and delivered by Strauss & Emanuel Brothers, on September 1st, 1857, to the defendants, upon a credit of six months, At the time of the sale the defendants held a note of Strauss & Emanuel Brothers, having about three months to run, for an amount exceeding the price of the goods purchased.

Appeal by defendant from a judgment of the justice of the First District Court. The return showed that the action was commenced by a summons returnable before the justice of the fourth, district, at his court room, in First avenue, in the city of New York. On the return day of the summons the parties appeared, and the defendant put in an answer.

The action was to recover for certain marble mantels alleged to have been sold to the defendant; and, also, for the labor and materials used in putting them up in eight houses belonging to him in Thirty-sixth street, in the city of New York, and built for Mm under a special contract therefor made with William H. Oronk.

<p>Appeal from a j udgment entered upon a report of Hamilton W. Robinson, Esq., referee; in favor of the plaintiff. The action was brought by the plaintiff, as receiver of Mary E. Foster, appointed by a judge of this court upon supplementary proceedings founded on a judgment, recovered against her in favor of A. T. Stewart & Co., for over $3,000. The complaint alleged .that the defendant, acting as agent for Miss Foster, had received from the trustees, under her father’s will, money's which he had not paid over or accounted for, and asked to have the amount in his hands paid over to the receiver of her property, to be applied in extinguishment of her debt on the judgment. The answer denied that the defendant had received the amount alleged in the complaint, and set up, as an offset against any balance in his hands, professional services as a lawyer, rendered by him in the management of her affairs.</p> <p>The supplementary order, requiring the defendant to appear and be examined concerning her property, was granted April 15th, 1857. She appeared pursuant to it, submitted to an examination, and on June 9th, 1857, the plaintiff was appointed receiver of her property and effects. The referee found the following facts established at the trial before him :</p> <p>“ That the defendant, from time to time, between the fifth day of February, 1856, and the fourteenth day of May, 1857, received from Anthony Hoguet, trustee under the will of James Foster, Jr., deceased, of Mary E. Foster, and as her agent, the sum of thirty-eight hundred and seventeen dollars and eighty-two cents; that he had paid over to the said Mary E. Foster, or to and for her use and benefit, the sum of thirty-five hundred and thirty-, three dollars and fifty-two cents, and that a balance of two bun-,dred and eighty-four dollars and thirty cents of said moneys so received by said defendant for the use and benefit of said Mary E. Foster, remained in his hands on the fourteenth day of May, 1857, the time of the commencement of this action. That the professional services mentioned and referred to in the answer, and for which the defendant sought to retain the moneys in his hands, were not rendered by the defendant, but by the firm of G. C. & E. J. Genet, of which the defendant was a member, and that he had not shown any individual right to recover therefor, or to retain any of said moneys for the payment or satisfaction of the claims of that firm for such services.”</p> <p>On this report, judgment was entered in favor of the plaintiff for $372.26, and the defendant appealéd, making the following exceptions to the finding of the referee:</p> <p>First. That the referee included in his finding an item of-$100, on the 4th day of May, 1857, and an item of $306.82, on the 14th day of May, 1857, moneys of Miss Foster, which accrued to her, and were received by defendant subsequent to the order for the examination of Miss Foster on proceedings supplementary to execution under which the plaintiff was appointed receiver.</p> <p>Second. That the referee had not allowed defendant the benefit of the claim of G. C. & E. J. Genet for services, as a defence to plaintiff’s claim to moneys in his hands. Third. That the 'finding of facts by the referee was contrary to the evidence.</p>

Appeal by the defendant from a judgment entered upon the report of a referee in favor of the plaintiff. The facts of the case fully appear in the opinion of the court.

The action was brought to recover for goods sold and delivered; the plaintiff’s bill of particulars therefor amounting to $98.75. The answer denied the allegations of the complaint, alleged payment of the plaintiff’s claim, and averred that plaintiff was indebted to defendant for medicines sold, and for medical services rendered, and demanded judgment for a balance claimed. The bill of particulars of defendant’s claim amounted to $58.50.

The defendant, John L. Hubbard, was owner of the buildin $ in question, he having contracted with the defendants, Van Clev i and Eyerson, for the erection of it. The plaintiff was employed by Van Cleve and Eyerson to furnish materials for and build the stairs in the house, which he did, and thereby became entitled to receive from them $199. For this amount he filed a notice of lien.

The complaint alleged that one Graves took from plaintiff a lease of certain premises in New York citythat in August, 1857, Graves sold the stock, fixtures, steam engine, &c., used by him upon the nremises. to one Baldwin; that Baldwin entered into possession of the premises; that Baldwin shortly afterwards sold the stock, fixtures, and steam engine to defendants, who entered into possession of the premises, and continued in occupation thereof until November 1, 1857.

Appeal by plaintiffs from a judgment of the District Court for the first district. The action was brought to recover damages for the conversion of certain chattels, household furniture, &c., by the defendants Alpheus Reinor, Claus Reinor, Robert Reid and others.

The plaintiff having recovered a judgment in the First District Court against the defendant, the latter appealed to the general term of this court. The undertaking for costs filed by him was, however, drawn in the form usual in appeals from the special to the general term of the Supreme Court, and was not drawn in compliance with section 354 of the Code. The plaintiff moved to' dismiss the appeal on the ground of this defect in the security.

The defendant set up, as a defence to the action, a discharge under the Two Thirds Act; the justice held the defence established, and gave judgment in his favor. The plaintiff appealed. The grounds of objection to the discharge are fully stated in the opinion.

Appeal by defendant from a judgment of the District Court for the sixth district. The action was brought to recover for a quarter cask of brandy, sold by the plaintiffs to the defendant on August 26,1857, on a credit of six months. There had been a prior sale of brandy by the plaintiffs to defendant, to recover for which plaintiffs had brought a former suit.

<p>Where a guaranty of the payment of rent, to grow due upon a lease, is expressed to be “in consideration of the letting,” it will be intended, for the purpose of giving a consideration to the guarantee, if nothing to the contrary is shown, that the landlord agreed to let, in consideration of the promise of the surety; and this, notwithstanding the guaranty bears date after the lease.</p> <p>After the execution of a lease by the lessee, and of a written guaranty of the payment of rent by a surety, the lessee called on the lessor, and objected to taking possession of the demised premises, on the ground of their defective state of repair. The lessor thereupon promised to make the repairs required.</p> <p>Held, that this promise was wholly without consideration, and the breach thereof by the lessor formed no defence to a*, action against the surety upon his guaranty.</p>

The action was by the plaintiffs, as administrators of William H. Warner, to recover damages for his death, caused by the negligent act of defendant’s servants. The trial was had before Judge Hiltopt and a jury, and the charge of the judge presented the principal grounds of exception by the defendant.

Appeal by the defendants from a judgment entered at special term upon the verdict of a jury. The material facts in the case are fully stated in the opinion.

Appeal by the defendant Coe from a judgment entered against him at special term in favor of the plaintiffs.

Appeal by the defendants from a judgment entered at special term upon a verdict of a jury in favor of the plaintiffs. The action was brought to recover for injuries received by the plaintiff Maria, while attempting to get on a passenger car of the defendants.

The return showed that the complaint was verified in the form prescribed by the Code, and a copy thereof had been served with the summons.

The action was brought to recover for coal sold and delivered to the defendant. It appeared at the trial that the defendant had given, in payment for the coal, a bank bill, which, on being sent to the bank for deposit, was discovered to be a counterfeit. It was thereupon tendered to the defendant, and he refused to receive it.

<p>Extending the time for the payment of a note, past due, at the request of the maker, and without the consent of an indorser upon it, discharges the indorser from his liability.</p> <p>P. held a note of G. indorsed by S. After its maturity, and without the consent or knowledge of S., P. accepted from G. a payment in cash on account, and his note for the balance due, payable three months thereafter. Held,</p> <p>I. That P. thereby extended the time for the payment of the original debt, and suspended any right of action upon it, during the period the new note had to run.</p> <p>II. Such an extension of credit to G. effectually released S. from liability as indorser upon the original note.</p>

The action was brought to recover the contract price agreed upon for shoring up in a particular manner a wall of the defendant’s building. It appeared at the trial that the plaintiff was employed by one Woodruff to erect a building on a lot on Broadway, adjoining the plaintiff’s store, and a part of that employment was to shore up the wall in question, which Wood-ruff was obligated to do by the “Act respecting excavations in New York and Brooklyn,” passed January 24th, 1855.

The suit was brought upon a promissory note for $33, made by the defendant July 2,1852, payable to Phineas Morse or bearer on. the first day of October (then) next. The answer set up that the cause of action did not accrue within six years previous to the commencement of the action.

The action was brought by the plaintiff to set off a judgment by confession, recovered by him against the defendant Cook, against a judgment for costs recovered by Cook against the plaintiff, and also to set aside an insolvent discharge granted to the defendant Cook subsequent to the judgment so entered against him, but prior to the judgment entered in his favor.

<p>Leave to go to the Court of Appeals in an action commenced in a district court, will not be granted, where the question decided by this court relates only to the practice in those courts under the provisions of the District Court Act, and a case involving the same question has been previously permitted to be taken to the Court of Appeals.</p> <p>go held in a ease where, upon appeal, the judgment was reversed, because the action was commenced by a non-resident plaintiff by long summons, and without giving security for the defendant’s costs.</p>

<p>If a defendant, after moving for a non-suit at the trial, upon the ground that the evidence is insufficient to justify any recovery, supplies the proof, the want of which formed the basis of the motion, it will be no ground for reversing the judgment on appeal, that the proper evidence was not before the court at the moment the non-suit was asked.</p> <p>In an action for goods sold and delivered, it is necessary to a recovery, that the price or value of the goods should be shown.</p> <p>A receipt upon a bill of goods sold, is conclusive evidence of payment, unless contradicted or explained.</p>

<p>A married woman cannot contract so as to bind herself generally, and her general personal engagements will not operate so as to bind her separate estate.</p> <p>The laws relating to married women, passed in 1848 and 1849, have not removed this general disability ¿o contract.</p> <p>It seems, the husband of a woman engaged in business is liable for debts or obligations contracted or incurred by her with his assent, either express or implied.</p> <p>A claim for damages arising out of a violation of a contract made by a married woman, granting the use of a thing attached to a freehold, possesses none of the elements necessary to obtain relief against her separate estate. Per Beady, J.</p>

The appeal rested upon exceptions by the defendant to evidence ad ■ mitted.or ¿rejected at the trial, and which are fully set out in the opinion. .Judgment having been given in favor of the plaintiff, -the defendant ¡appealed.

Appeal by the plaintiff from a decision of a judge at chambers, and an order entered thereon, refusing to allow a certain inquiry to be made of a defendant, upon her examination on proceedings supplementary to execution. The facts are sufficiently stated in the opinion.

The action was commenced by the service of a summons and complaint. The complaint stated that the defendants were bankers, and that Edward McGuire,- assign- or of the plaintiff, opened an account, and had dealings with them, upon which defendants became indebted to him in a balance of $3,899.86, which they had refused to pay. It also alleged an assignment of this claim to the plaintiff.

The action was brought to recover the value of 140 gallons of liquor, being a deficiency in quantity on a sale of liquor, in barrels, by the defendant to the plaintiff. The sale was made by the number of gallons marked on the outside of each barrel; but, after delivery, the actual quantity was ascer-. tained, according to a usage of the trade, by which one barrel is taken from every ten, and measured, and an estimate made of the whole quantity founded on such a measurement.

<p>In an action brought to reach the separate estate of a married woman, the complaint alleged the making of a promissory note by the husband, the guaranty thereof by the wife, the protest of the note, and notice thereof to her. Also that, at the making of the guaranty," she possessed a separate estate; that the note was given by the husband in payment for services rendered thereto in the erection of a building, &e.; that the guaranty was accepted on the credit of such estate, and that the note thus guaranteed had been duly indorsed to the plaintiff. Held, bad on demurrer.</p> <p>A married woman cannot contract by guaranty, and as the only cause of action alleged against her was upon such a contract, and not upon any equitable obligation or demand, the payment of which would be enforced out of her separate estate, the complaint therefore was defective.</p> <p>A chose in action may be transferred by parol as well as by writing, and a blank indorsement upon a written instrument, not a promissory note, is sufficient to pass all interest in it.</p> <p>Per Brady, J.—In an action against a married woman, her separate property may be reached by judgment and execution in the ordinary form, and in the same manner as if she were a feme sole.</p>

Appeal by the defendants from a judgment entered against them in the Sixth District Court. The action was to recover for moneys which accrued to the plaintiff, as a member of the defendants, for monthly benefits. On the return of the summons, the president of the society appeared, admitted that it was an incorporated body, and that the money claimed had accrued to the plaintiff, but alleged that he had been paid.

The plaintiff recovered the value of a horse belonging to him, killed upon the defendants’ track by a train of cars. The defendants appealed. All the facts shown by the return are given in -the opinion.

The action was brought to recover the value of certain services rendered to the defendants by the plaintiff, while in their employment at Hicaragua and elsewhere, between September, 1855/ and January, 1858. The defence set up was, that the defendants had paid the plaintiff in full for the services so rendered.

<p>The damages recoverable in an action for a breach of covenant, must not only be averred in the complaint, but must be shown with reasonable certainty at the trial, and not left to speculation and conjecture.</p> <p>N. claimed damages of B., and threatened a suit for an alleged breach of covenant. The claim being disputed in good faith by B., they met, and after considering the subject, B. paid $20, which N. accepted, saying that all his claim was settled, and he would not sue: SeU, a binding accord and satisfaction.</p>

Motion to dismiss an appeal taken on behalf of Kinshimer, a tenant, to the general term of this court, from a determination made by a justice of a district court, in a summary proceeding by Eomaine, as landlord, to recover the possession of certain premises in the occupation of Kinshimer.

<p>Motion to continue an action in the name of the acting executor of a deceased plaintiff.</p>

Motion to vacate a judgment entered upon a forfeited recognizance, and to remit the forfeiture. The grounds upon which the application was based, fully appear in the opinion.

Trial before a judge without a jury. The action was brought upon a written instrument in the usual form of a bond, but without seal, conditioned for the payment of $35,000 in certain instalments. The defence was, substantially, that it created no obligation or liability, as no consideration appeared upon its face.

<p>Motiou for a new trial. The plaintiff) as executor of Susan Ayres, deceased, brought this action to recover the value of certain property claimed to have belonged to the testatrix, and which was levied upon and sold by the defendant, in his official capacity, by virtue of an execution against Samuel Carpenter. The defendant set up in his answer a justification for the taking under the execution; put at issue the title of the testatrix and the plaintiff to the property ; and, as a distinct defence, claimed that the action had not been brought within three years after the cause thereof accrued. At the trial, evidence was introduced respecting the ownership of the property, and the time when it was levied upon and taken by the defendant. It also appeared that the testatrix died January 10th, 1851; that letters testamentary were granted to the plaintiff March 23d, 1853 ; and that this action was brought May 19th, 1854. ■ The plaintiff’s testimony respecting the time the levy was made, consisted of several witnesses fixing the date from memory alone, unaided by any memoranda or circumstance calculated to impress the precise day upon their memory with any peculiar distinctness. They concurred, however, in testifying that the levy was made on May 23d, 1851, and that the goods were removed the following day. The witnesses on the part of the defendant, upon this point, consisted of the deputy sheriff who made the levy, and the person who was subsequently put in charge of the property, and afterwards assisted at its removal. The deputy testified from a memorandum made by him on the back of the execution at the time of the levy, and from which he was enabled to state positively that the levy was made on May 2d, 1851. Upon both of the questions thus presented as to the ownership of the property and the time the cause of action accrued, the jury, under a charge of Judge Daly, who tried the cause, calling their attention particularly to the issues to be determined, found a verdict for the plaintiff.</p> <p>The defendant applied for a new trial on the ground that the verdict is against the weight of evidence, and especially that, as to the time when the levy was made and the cause of action accrued, it' is contrary to the charge of the judge.</p>

<p>An assignment for the benefit of creditors, with or without preferences, made by one or more members of a firm, without the consent, concurrence, or authority of all, is void.</p> <p>What constitutes such an authority, considered.</p> <p>B. and R. were copartners. B., after collecting part of the assets of the firm, absconded, and, by letter, abandoned the remaining assets to R., who executed, in tiie name of the firm, a general assignment for the benefit of the creditors. Seld, that such a surrender and abandonment invested R. with power thus to dispose of the partnership property.</p> <p>Where such an authority can fairly be implied from facts and circumstances, courts of equity will uphold acts done under it.</p>

Motion to vacate an order for the examination of the defendant, a judgment debtor, under proceedings supplementary to execution. The affidavits on which the motion was grounded, showed that the defendant had been once fully examined under a previous order granted upon the same judgment, and no property discovered; and alleged that the last order had been obtained for the purposes of vexation and annoyance.

Demurrer to a complaint. The nature of the action and the character of the pleadings sufficiently appear in the opinion. a ,

Demurrer to a complaint. jThe complaint was in the following form: “ That, during the year 1857, he (said plaintiff) was the lessee and tenant of a certain lot of land in Hudson city, state of New Jersey, containing about six acres, said lot being a vacant lot, used as a cattle yard and pasture, and situate in said city near and between the court house and the residence of Judge E. T. Carpenter, and near and between Newark avenue and the Hoboken road.

Motion to vacate a judgment entered at general term, affirming a judgment of a district court. It appeared that the defendant appealed from a judgment rendered against him, and, after procuring the return of the justice to be filed, noticed the appeal for argument, and had it placed on the general term calendar for January last.

The action was upon a promissory note made by the defendant Chave to the order of the defendant Briggs, and subsequently indorsed to the plaintiff. The complaint was in the usual form, alleging the making of the note, its delivery to the payee, and his subsequent indorsement of it to the plaintiff for a valuable consideration before maturity.

Demurrer to an answer. The complaint alleged that on March 6th, 1858, the plaintiffs let and leased to the defendant the house and premises No. 248 Hicks street, Brooklyn, for one year, to commence on May 1st, 1858, at the rent of $600, payable quarterly; and in consideration of such letting, the defendant covenanted and agreed with the plaintiffs to pay them the rent as aforesaid.

Trial before a judge, by consent of parties, without a jury. The action was brought against the defendants as sureties upon a constable’s bond, given to the mayor, aldermen and commonalty of the city of Few York, pursuant to the provisions of section 147 of “ Ah act to reduce several laws relating particularly to the city of Few York,” passed April 9,1813.

Trial before a judge without a jury, in an action to foreclose a mechanic’s lien upon building and premises No. 18 East 37th street, belonging to the defendant. It appeared that the plaintiff had contracted with the defendant, as owner, to do the mason work on the building in question for $5,800, the work to be done to the defendant’s satisfaction, and according to certain plans and specifications referred to in the contract.

<p>The applicant petitioned for a change of name under the provisions of the act referred to, passed December 14th, 1847. See 3 R. S. (5th ed.) 873. All the material facts in the petition are stated in the opinion.</p> <p>The petitioner, in person.</p>

Proceedings to foreclose a mechanic’s lien. The claimant served upon the owner a notice in proper form, requiring him to appear in this court on this day, and submit to an accounting and settlement of the amount claimed to be due to the contractor.

<p>A summons is irregular which, at the time of service, is unaccompanied by a complaint, and does not state where the complaint is or will be filed.</p> <p>When a defendant has appeared in the action, a notice of discontinuance is inoperative, unless accompanied by payment of costs.</p>

On proceedings supplementary to execution against the defendant, it appeared from his examination that he was a cartman, and that the corporation of the city of New York was indebted to him for his personal services, as cartman, within the previous sixty day's, an amount more than sufficient to pay the judgment.

Motion to open a judgment entered by default, and for leave to the defendant to answer. The action was to recover of the defendant the penalties imposed by law for selling liquors, in quantities less than five gallons at a time, without a license.

<p>Id an action against husband and wife, where her interest is separate and distinct from her husband’s, a joint answer must be verified by both.</p> <p>A joint answer of several defendants, who are not united in interest, must be verified by all.</p>

<p>Supplementary proceedings cannot be instituted upon a judgment recovered in a justice’s or district court for an amount less than $25, exclusive of costs.</p> <p>On such a judgment an execution can issue only against the personal property of the ' debtor.</p> <p>Such proceedings are only allowed upon the return of an execution unsatisfied in whole or in part, issued to a sheriff, against the real and personal property of the debtor.</p>