Volume 2 — Jones & Spencer's New York Superior Court Reports

<p>There was an agreement between the parties, that the plaintiffs should purchase and sell-three hundred shares of stock on the joint account of the plaintiffs and defendants.</p> <p>Plaintiffs purchased the stock, in June, 1868, in accordance with this agreement, and with the approval of the defendants, the plaintiffs furnishing the money. It was also agreed that plaintiffs, as a firm, might sell this stock for the joint account of the parties whenever they should think best or see fit, and the certificates of the shares were deposited in plaintiffs’ safe, and there remained until May or June, 1869, when Henry H. Thompson, one of the plaintiffs, without the knowledge or consent of his partner, and co-plaintiff, or of the defendants, took this stock from the safe and sold the same for his own account at a less rate or sum than the original cost of the same, and applied the proceeds to his own personal use and account.</p> <p>This sale was not known to the plaintiff, Humphrey Thompson, nor to the defendants, for some weeks or a month after it occurred.</p> <p>Meld, that this act of one of the plaintiffs, in taking and selling the stock on his own account, and applying the proceeds thereof to his own account, was not a sale of the said stock pursuant to the agreement between plaintiffs and defendants. If considered as the personal act of that plaintiff, who did the same, it was an unlawful conversion of the property of others. If considered as the act of the plaintiffs, it was a breach of the agreement, for the defendants were entitled to the best judgment and action of the plaintiffs as a firm and of each member thereof in the sale of that stock, and they cannot be held to an account upon such a sale.</p> <p>The subsequent acts of the plaintiffs in' purchasing stock and tendering the same to the defendants, and on their refusal to accept it, selling the same on notice, &c., could not, and did not, affect the result, &c., nor heal this breach of the original agreement. Defendants held not liable for any loss that the plaintiffs sustained in the transaction.</p>

The action in which the judgment was obtained, was to recover the amount of three promissory notes, made by the plaintiff, for the accommodation of the defendant, on which the plaintiff had been sued, and which he was obliged to pay, with costs of suit. The complaint alleged, that the notes were obtained by the defendant by means of false and fraudulent representations. The relief demanded was a judgment for. the amount of the three notes, interest, and costs of suit.

The action was- to recover damages for personal injury, and was referred to a referee, to “hear and determine the same, and that he report to this court with all convenient speed.” The complaint alleged that the injury was caused by the negligence of defendant’s servant, in driving the defendant’s horse and wagon into the carriage of the plaintiff. A motion to dismiss the complaint on the several grounds : 1. Of plaintiff’s concurring negligence. 2.

Exceptions ordered to be heard at the general term in the first instance. The facts in the case appear in the opinion of the court.

The parties were the owners, as tenants in common, of certain real estate in this city. The complaint alleged that the defendant had received the rents and profits of the estate and had not accounted to the defendant for any portion of it. The answer averred that the defendant had over-paid the plaintiff’s testator and devisor, on account of such rents.

The action was upon an undertaking given upon the arrest of the defendant Wildey. The defendant was arrested on July 2, and the-undertaking was given on August 10,1869. Judgment in the action was entered on July 10, 1869, when an execution against the property was issued and returned unsatisfied. An execution against the person of the defendant was not issued until March 1 1870. The court dismissed the complaint, and the plaintiff excepted.

, of defendants’ books. During the trial of this action by a referee, the defendant Schmidt was subpoenaed, duces tecum, to pro dnce the books of account of the defendants. Failing to produce them, a motion was made to punish the witness for the disobedience, which motion was denied by the referee, on the ground that the production of the books, for the purpose indicated by the plaintiff, at the trial, would not entitle the plaintiff to inspect them.

Appeal 'from an order at special term denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action.

. Tlie complaint was as follows : “The plaintiff, complaining of the defendant, shows to the court: “ 1. That the plaintiff is the wife of the defendant, and that plaintiff was married to defendant at the city of Coblentz, in Germany, on or about May 6, 1847. “II.

<p>The defendants, publishers of a daily evening newspaper, known as The Evening Mail, are the successors of Charles H. Sweetzer in that enterprise, and plaintiffs furnished printing paper for use in their business, to recover payment for which they bring this action.</p> <p>The account on plaintiff’s books stands in the name of Charles H. Sweetzer, Evening Mail, and was commenced and continued for some time previous to defendants becoming such publishers. After the change, in answer to plaintiffs’ inquiry as to the change in the account on their books, Sweetzer told plaintiffs there was no necessity for a change, as he was the principal stockholder and the manager of the corporation, and, in fact, he was the Evening Mail Association, &c,, and plaintiffs continued the account on their books under the same name. Held, by the referee, and sustained by the court, that the sale of the paper was made and the credit given to Sweetzer and not to defendants, and plaintiffs could not recover in the action.</p> <p>See dissenting opinion by Mohell, L, reviewing Meeker v. Claghorn, 44 H. T. 349.</p>

This is an action against the maker and indorser of a promissory note, which was as follows: “ New York, December 11, 1869. . “Four months after date I promise to pay to the order of D. Woodhouse, Esq., five hundred dollars, at 4 and 6 Pine-street. Value received. “Arch! G. Rogers.

The action is to recover damages for words printed and published by defendant. The defendant was the editor and compiler of a certain pamphlet entitled “Life Insurance Chart, 1866-67, fourth edition. Synopsis of annual returns of life insurance companies organized or doing business in the State of New York for the year ending, December 31, 1867. ” The complaint contains five counts.

One Elias B. Balcom being indebted to the plaintiff in about one thousand dollars, the plaintiff commenced a suit against him, and obtained a warrant of attachment against his property. Held: the language must give way to the intent (Ludlow v. McCrea, 1 Wend. 228).

This action was brought to obtain an injunction against defendants restraining them from infringing a certain trademark, claimed by plaintiff to have been adopted by him for the designation of spool… Held: unanimously, that the plaintiff was entitled to the allowance prescribed by section 308, in addition to the regular costs. Davison v. Waring, 9 How. Pr. 254.

Action to recover for the publication of certain advertisements in newspapers printed and published in the island of Cuba. Held: in accordance with the decisions of the courts. 2. The contract gave to the defendants the option to pay the plaintiff either nine cents in currency, or four and a half 'cents in coin per printed line for each insertion of the advertisement in the Spanish journals of the island of Cuba, embraced in the circular list. 3.

Appear from judgment. This action was brought to recover a balance due for goods sold and delivered. The defenses were a general denial, and coverture of the defendant. On the trial, the plaintiff on his direct examination testified, that he sold to defendant three hundred and thirty-one dollars’ worth of furniture, and that there was a balance of one hundred and one dollars and fifty cents due which the defendant had promised to pay.

This is an action of claim and delivery brought to recover from defendants the possession of certain United States government bonds which are averred to belong to the plaintiff. The answer admits the incorporation oí the company, the possession of the bonds, a demand made for them and a refusal to deliver, but denies all the ‘other allegations of the complaint. Thus, the only point in issue was as to the owner- . ship.

This action is brought to recover one hundred and forty-eight dollars and fifty-seven cents'for lager bier sold and delivered to defendant by plaintiff, at an agreed Drice.

This action was brought to recover the sum of four thousand one hundred and eighty-two dollars, the balance alleged in the complaint to remain due of the sum of seven thousand dollars, which the complaint alleges the defendant promised to pay the plaintiff for services rendered by plaintiff as a builder, and materials furnished by him, in and about the erection of certain buildings.

This is an appeal by the defendant from a judgment entered upon the report of a referee. Held: as matter of law) that the covenant in the lease for the payment of taxes and assessments was only a covenant for the payment of money, arid that the lessée ought to be relieved from the lessor’s right' of forfeiture which had attached. because of the failure of the foriher to make such payments at the several times required by the…

The action was to recover on two causes of action: first, for money advanced, and second, for expenses incurred.

The action was commenced in April, 1866, and was pending before a referee, with numerous meetings and much testimony taken, until July 25, 1871, when the evidence was declared by the referee closed on each side, and the trial adjourned to September 7, for summing up. On July 18, the motion by the defendant for a commission was noticed, and adjourned from time to time to September 7, when it was dismissed on failure of the defendant to appear.

This was an appeal from, a judgment recovered by the plaintiff for the value of a stock of goods, taken by virtue of void attachments issued on application of the defendants out of the marine court. The defendants procured six attachments, all of which were vacated by order of the marine court. The goods were sold upon an execution issued by defendants upon a judgment obtained in one of these actions.

<p>The firm of Steinhart & Heyne was composed of Otto Steinhart & Frederick W. Heyne, and in June, 1868, were indebted to the firm of Scholler & Co. in the sum of seven hundred and eighty-four dollars and fifty-nine cent's. About the same time, Heyne sold'his interest in the firm of Steinhart & Heyne to John F. Doellner, who, with Steinhart, formed the new firm of Steinhart & Co. One of the considerations of the sale was Doellner’s agreement to pay the debts of Steinhart & Heyne, among which was the debt due to Scholler & Co.</p> <p>On August 7, 1868, Steinhart sold out his interest in the firm of Steinhart & Co. to Doellner, and Doellner gave him a bond of indemnity against all the valid debts and liabilities existing against Steinhart & Co. mentioned in the schedule annexed, and the schedule contained the following entry: “ 8'¿holler & Go., $784.59.”</p> <p>Scholler & Go. commenced an action against Steinhart & Heyne, and recovered judgment, by default, for eight hundred and forty-three dollars and three cents, which Steinhart paid. Steinhart brings suit on the bond of indemnity against Doellner to recover the amount paid on that judgment.</p> <p>Doellner claims that this debt of Scholler & Co. was not a valid debt against the firm of Steinhart & Co., and not included in the terms of the bond of indemnity.</p> <p>Held, by the referee and by the court on appeal, that this debt of Scholler & Co., against the firm of Steinhart & Heyne, was also a valid and subsisting debt and lidbilil/y against the firm of Scholler & Co., and as such included in and covered by the bond of indemnity, and plaintiff could recover said debt, and all losses, damage and expense to which defendant was necessarily subjected to, by reason of said debt and liability.</p> <p>Held, also, that plaintiff could recover only the costs that had accrued and were incurred by him upon the summons being served upon him, as he did not then give any notice of the action to the defendant Doellner, but allowed the costs and expenses to increase by judgment and execution, and therefore he cannot recover for any costs and expenses after that time.</p>

<p>A. and B., as copartners, commenced an action against 0., to recover money lent and advanced. Judgment was entered upon the offer of C. allowing the same.</p> <p>Afterwards, and on May 30, 1871 (A. having died), on motion of ' plaintiff’s attorney, in behalf of the survivor, plaintiff, and by the consent of the defendants’ attorney, an order was entered, vacating the judgment, and withdrawing the offer of 0. for judgment, and vacating all proceedings in the action after the service of the summons, and amending the summons by inserting the name of another defendant (D.), and allowing the complaint to be _ amended and served within twenty days, and on May 37, 1871, another order was entered on motion of plaintiff, and with the consent of the attorney for defendant, 0., reciting that the ■ amendments of the summons and complaint had been made, and ordering that the summons and complaint on file be amended in like manner.</p> <p>On June 1, 1871, defendant D. was served with the amended summons and complaint, and he moved at special term that such service be set aside, and that the order amending the summons and complaint, by which he was made a party defendant, be vacated. This motion was denied, and he appeals to the general term, from the order denying the same, and the plaintiff moves to dismiss the appeal.</p> <p>Held, that the defendant D. is not, under section 820 of the Code, entitled to appeal from, the order refusing to vacate the order complained of.</p> <p>The judgment vacated did not affect D., and the order vacating the same did not affect him, nor was he affected by any proceeding in the action before he was made a party; until then he was a stranger to the- action. By amendment of summons he was made a party, 'and having been served therewith he was then called upon to answer. He cannot complain of this any more than if he had been made a party, and served at the commencement of the action.</p> <p>He can plead the former judgment against C. in bar or as an ex-tinguishment of the original claim. No right or claim of his has been affected in the least by these proceedings, nor been the subject of adjudication, and therefore he has not been aggrieved.</p>

<p>The evidence of what goods sold for at a sheriffs sale or auction should be received for the consideration of the jury as to the value of the same, in a case where an action is brought to recover the value of the same goods, and damages for the taking, &c.; and when compared with other evidences of value, offered in the case, should be allowed such weight as the circumstances of the sale and the degree of competition actually exhibited should entitle it to (Campbell v. Woodworth, 3 N. Y. 500; Dixon v. Buck, 42 Barb. 74; Gill v. McNamee, 43 N. Y. 46).</p>

This is an action to recover on a marine policy of insurance on hay, laden on the canal boat “ George R. Hale,” on a voyage from New York to Washington City. The boat left New York in December, 1863, mco the canals, and reached Philadelphia, December 31, and on the morning of January, 1, 1864, proceeded down the Delaware River to the Chesapeake and Delaware Canal at Delaware City, in a tow of about twenty-five boats, towed by four or five steamers.

This action is brought to recover three thousand dollars damages claimed to have been sustained by reason of certain false and fraudulent representations alleged to have been made' by the respondents to the appellants, by which the latter were induced to purchase the stock and fixtures of a cigar stand in the premises No. 585 Broadway, New York, paying therefor one thousand, and twenty-four dollars, and also to take a lease of the stand from tlie respondent for one year at…

Appeal by the plaintiff from an order made on June 14, 1871, granting a motion to vacate an order of arrest. The action is to recover the .value of wood mouldings sold by the plaintiffs to the defendant, between March 1, 1870, and January 1, 1871, and for which defendant gave plaintiff his note, dated January 18, 1871, payable three months after date.

This action was brought to obtain a construction of the will and codicil of John Alstyne, deceased, and to determine the identity of one of the legatees. The will, among several other gifts to charitable institutions, bequeathed the sum of five thousand dollars in the following words : “ Ninth.

This was an action to redeem from a foreclosure sale. On November 19, 1862, the defendant, John Murphy, became the purchaser, at a sale under foreclosure, of a mortgage made to him by one Philip H. Doremus, for six hundred and fifty dollars, of a lot on Eightieth - street, in the city of New York, one hundred and eighty-one feet six inches easterly of Bloomingdale Boad.

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>The facts and points in the case appear from the opinion of the referee.</p>

<p>In the exercise of its jurisdiction in respect to receivers and receiver-ships, the rights of all parties in interest are committed to the guardianship and protection of the court, whose duty must ever be to watch all the proceedings, even those involving small amounts, lest some one might suffer injustice.</p> <p>A receiver is simply an officer, and the court has authority to determine his compensation, and is not limited by that fixed by statute to executors, &c., or to that fixed by the Code at section 344, subd. 4 (Gardner v. Tyler, 8 Keyes, 505).</p>

■ Appeal from order at special term sustaining plaintiff’s demurrer to the answer.

The action was to foreclose a mortgage upon real property, made by the defendant Phillips in May, 1865, to secure the payment of four thousand dollars, on the first day of May, 1868, with interest at six per cent.. per annum. Subsequently to the delivery of the mortgage Phillips conveyed the premises to the defendant, Krekeler, who afterwards conveyed to the defendant Thaule.

<p>The plaintiff, with her child, about two years old, were passengers on one of defendants’ street cars, and the conductor stopped the car at her request, and she sought to alight therefrom with her child in . her arms. While in.the act of alighting, and with one foot on the step and the other on the ground, or before she had got clear of the car, the conductor rung the bell, and the car started.</p> <p>The plaintiff wore, as a part of her clothing, a hoop skirt, and one of the steel hoops of the same caught on a nail projecting from the platform of the car, and the plaintiff was thrown upon the ground and dragged some distance over the pavement before the car was stopped, and she was seriously frightened and injured.</p> <p>The defendants on the defense claimed contributivo negligence on the part of plaintiff, that she wore hoops, an unnecessary article of female apparel, and being thus attired was bound to exercise more eare in entering and alighting from a car than a man, which she did not do; also that the hoop skirt worn by plaintiff was the proximate cause of the accident, or the use of the same contributed to cause the injury, and therefore she could not recover.</p> <p>Held, If hoop skirts are worn by such passengers as the railroad company were in the habit of conveying, the defendants were bound to provide for the safety of the passengers wearing that kind of a garment, for they are bound to carry safely such passengers as they take and are in the habit of taking, and with as much care and caution as prudent and cautious persons would be bound to exercise.</p> <p>An ordinary passenger, and still less a woman with a child in her arms, cannot be expected (by the exercise of their ordinary faculties) to anticipate and avoid such an obscure danger as the evidence shows this to have been, and there appears to be no sufficient reason for disturbing the conclusion of the jury upon the evidence, that the injury to the plaintiff was caused solely by the negligence of the defendants.</p>

The action is against the maker of a promissory-note, payable to the order of Charles E. Forman. The defendant set up that he made the note in suit solely for the accommodation of the payee, and never received any consideration therefor.

The action is to recover of the defendant, as a stockholder in the American and Mexican Silver Mining Company, for services performed for the company, in the capacity, as alleged, of its servant. The complaint alleged the recovery of a judgment against the company and the return of an execution unsatisfied.

This action was tried by the court and a jury, and resulted in a verdict for the plaintiff, upon which a judgment was entered on February 1, 1870. The defendants appealed to the general term, and the appeal is now pending.

• • Appeal from a judgment; also from an order refusing a new trial. The facts in the case and the question appear fully in the opinions of the court.

The action was upon a policy of marine insurance to recover, as for a total loss, the value of seventy casks of ale, shipped on board the brig “Ballot Box” at the city of New.York, to be carried by sea to the port of Galveston, in the State of Texas. The subject insured was among the memorandum articles and insured “ free of partial loss.” The vessel proceeded on. her voyage, and on endeavoring to enter the harbor of Galveston, stranded, and subsequently became a total loss.

Case and exceptions sent to the general term for hearing in the first instance. The facts appear from the opinion of the court.

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>The facts and points of the case appear in the opinion of the court.</p>

<p>One Charles W. Johnson as the attorney of plaintiff and others, re-received from one John B. Caldwell a draft of one thousand four hundred and fifty-eight dollars and twenty-nine cents, made by the firm of Nolan & Weary, upon "the defendants at sight, payable to the order of plaintiff.</p> <p>Johnson indorsed the name of plaintiff upon the draft and sold the same to the firm of Warren, Hussey & Co., through their agent, Joseph A. Thatcher, receiving the value thereof in money from Thatcher, and delivering him the draft. At the time of the negotiation and sale of the draft by Johnson he exhibited to Thatcher Ms power of attorney, that he claimed contained authority to indorse and sell the draft, and Thatcher examined it. This power of attorney authorized Mm to receive from Caldwell certain moneys, and effects in his (Caldwell’s) hands, and under the same he had received this draft, payable to the order of plaintiff, but it con-Í tained no authority .to sell or to indorse the draft, or in any manner to change or exchange or dispose of the effects he received from Caldwell under the power.</p> <p>Meld, that the draft became and was the property of the plaintiff from the time the same was delivered to Johnson, and the power of the latter in reference to it was confined to the simple act of delivering or transmitting the same to the plaintiff.</p> <p>The indorsement being without authority, it passed no title, property or interest, in the same to Warren, Hussey & Co., and defendants were liable to pay the sum to the plaintiff.</p> <p>Written instruments creating a power must be strictly construed, and the authority therein given not extended beyond that clearly given in terms or beyond what is absolutely necesssary for the exercise of the power (Story on Agency, § 68).</p>

<p>The tender of a warehouse receipt is sufficient tender where the subject in dispute is ponderous or incapable of a personal delivery (26 Bari. 372 ; 5 J. B. 835; Story on Sales, §§ 311, 312).</p> <p>Notice of a party to a contract for the purchase and sale of specific property, that he would not be able to take and pay for the property contracted for by him is a waiver of any right to a delivery or tender (Burge ». Korp, 5 Bolt. 1).</p> <p>The exception to the whole charge of the judge in bulk is too general and broad for consideration, even if some portion is erroneous (Haggard v. Morgan, 1 Seld. 422</p>

The history of this case is as follows : The action was brought to restrain the defendants from using the rear wall of the plaintiff’s building, by placing beams or timbers therein, and from building upon or occupying a certain piece of land in the rear of such wall. Upon the report of a referee, judgment was entered dismissing the complaint.

This action was brought upon an undertaking, given under section 187 of the Code, in an action wherein the plaintiff herein was plaintiff, and Henry H. Grodet principal, was defendant, and executed by Henry H. Grodet, as and Henry T. Grodet and C. N. Van Zandt, sureties.

This action was brought to recover damages sus tained by the plaintiff through the erroneous trans mission of a telegram sent by him over the defendant,’ telegraphic line.

The action was brought by Giles W. Porter against the defendant for the wrongful seizure and sale of personal property, the alleged property of said Porter. The defendant interposed a general denial. During the pendency of the action, Giles W. Porter died, and the action was continued by and in the name of Mary C. Porter, acting executrix of the last will and testament of said Giles W. Porter, as plaintiff.

The action was brought to recover thirty-five hunIdred dollars, a quarter’s rent, due November 1, 1869, |of the premises, with the buildings thereon, known' as To. 475 Broadway, running through to… Held: was a prolongation or continuation of his tenancy, which, as it had been originally created by the defendants, prevented their taking the ground that there was a complete perfect surrendry.

The action was brought' to recover eight hundred and twenty-one dollars and ninety-one cents, the amount of an order drawn by John Gr. Hoffman in favor of the plaintiff, and accepted by the defendant, and payable by its terms out of the fifth payment to which John Gr. Hoffman might become entitled under a certain builder’s contract made with the defendant. The answer alleged that said John Gr. Hoffman abandoned the contract before the fifth payment became due.

This is an appeal by the defendants from a judgment entered on the report of a referee. A late sheriff in the county of New York sues to recover from the defendants a sum of money alleged to have been deposited with them by the firm of Stewart & Co., who were defendants in a suit in which an attachment issued to the plaintiff as sheriff.

<p>The provision of the Code (subdivision 8, section 401), which requires a judge before whom any motion is made, to obtain, modify or set any order for an injunction, order of arrest, or warrant of attach•ment, to render and make known his decision on such motion within twenty days after the day the same was submitted to him for decisión, is simply directory, and its non-observance furnishes no reason for vacating and setting aside his decision made after the twenty days had expired.</p> <p>The following decisions declaring the provision of section 267 of the Code, that provides that the judge before whom a case is tried, must file his decision within twenty days, as merely directory, cited as authority in this case: O’Brien ®. Bowers, 4 Bom. 668; People ®. Dodge, 5 How. Pr. 47; Lewis ®. Jones, 13 Abb. Pr. 427; Stewart ®. Slater, 6 Due}', 83 and 102.</p> <p>A party considering himself aggrieved by the delay of the judge (beyond the twenty days) in filing his decision, can by mandamus compel him to render and make known the same.</p>

<p>An order of the court, granting to a party the inspection and copy of books, papers and documents in the possession or control of the other party (Code, § 388), is appealable (Matter of Duff, 51 How. Pr. 350).</p> <p>Under the authority of the case, Matter of Duff, Ante, any discretionary order made at special term is appealable to the general term of the same court.</p> <p>The discretion of a judge should not be -his mere will and pleasure.</p> <p>It should not be arbitrary nor capricious.</p> <p>Discretion is “ Discernere per legem quid sit justum."</p> <p>An application to the court under section 388 for inspection, copy, &c„, may also include a discovery” under the revised statutes (Lowell v. Clark, 7 How. Pr. 158).</p>

<p>Whenever a composition is made with creditors, every agreement or arrangement by which an advantage is secured by any one or more of the creditors which is denied to others, is a fraud upon the creditors from whom it is concealed, although it neither has or can have the effect of depriving them of any portion of the amount which they had agreed to receive, and all such agreements are void (See the facts stated in opinion of the court, including this case within this rule and the authorities cited).</p>

<p>The defendant and her husband assigned to plaintiffs a chattel mortgage, and the defendant covenanted in the assignment as follows:</p> <p>“And the said Sarah Hester, by and with the consent of her husband, does hereby covenant and agree, that the sum of six thousand five hundred dollars remains due and unpaid upon said chattel mortgage, and she hereby guarantees the payment of the same.”</p> <p>The plaintiffs foreclosed the chattel mortgage, and recovered about one thousand eight hundred dollars, and brought suit to recover four thousand seven hundred dollars, and interest on the guarantee.</p> <p>The answer among other things set forth the foreclosure and sale of a part only, and that all of the property was worth more than the amount due, and that defendant was ignorant of the amount realized at the sale. The reply took issue upon all the matters set forth in the answer.</p> <p>The plaintiff on the trial merely proved the interest on four thousand seven hundred dollars, to date of trial, and rested.</p> <p>Defendant moved to dismiss the complaint, which was denied, and then proved she was a married woman at the time of the execution of the guarantee, and rested, and moved again for a dismissal, which was denied, and the jury rendered a verdict for five thous- and two hundred and eleven dollars and seventy-seven cents.</p> <p>The following rules and principles of law applied by the court in its judgment of reversal (exclusive of the question of defendant being a married woman): The general rule, that the burden of proof is on the party holding the affirmative, has an exception that applies here, namely: that when the plaintiff grounds his right of action upon a negative allegation, the establishment of this negative is an essential element of the case (1 Greenl. on Shi. § 75), unless the subject matter of the negative averment lies peculiarly within the knowledge, of the other party. In the latter case the allegation is taken as true, unless disproved by the party having peculiarly the knowledge.</p> <p>As the issues were framed in this case, the plaintiff was bound to give affirmative proof of his averment that Tie had not been paid on the mortgage. . . . • . .</p> <p>, I. The alleged breach was the nonpayment.</p> <p>H. The nonpayment was an omission of a third party, of which omission both parties had equal knowledge.</p> <p>HI. The amount realized, or that had been paid, was peculiarly within the knowledge of- the plaintiff, who took and sold the property under the mortgage, and received the proceeds.</p> <p>IY. This ruling is especially applicable in a case where the defendant, being a surety, may ask an account from the plaintiff of the proceeds of the mortgaged property.</p>

<p>A., under authority, collected moneys for B., who assigned the same to 0. After the assignment an action was commenced by D. against the assignor B., and an attachment was issued therein and the sheriff levied upon the moneys in the hands of A., as the property of B. In the mean time, A. had notice of the assignment of the moneys in his hands from B. to 0., yet, notwithstanding, after the perfection of the judgment in the action of D. against B. and issue of execution, A. paid over the moneys to the sheriff on the execution.</p> <p>These facts being established in an action brought by C. against A., to recover these moneys, it was Held, that the payment of the moneys .by A. to the sheriff on the execution issued in the attachment suit was no protection against, nor bar to, the recovery of the moneys by 0., the plaintiff, in this action.</p> <p>A. should have called upon 0. to interplead in the attachment suit, or otherwise sought the protection of the court, after he had received notice of the assignment. He paid the moneys over to the sheriff at his own risk.</p>

<p>It is the duty of the court, at general term, to examine anew the questions of fact and law that arose at special term (upon a motion for a new trial that was granted on terms), in the consideration of an appeal from the order (Macy v. Wheeler, 80 N. 7. 281).</p> <p>And if, upon a full review of the facts, by the general term, it appears that they do not justify, or are not sufficient to sustain the order of the special term, the order should be reversed.</p>

<p>The law imposes the duty upon every one, when upon a public highway, to use reasonable care and diligence to avoid threatened danger, and to protect himself and property therefrom, and for this purpose he is bound tó use all his senses. When a driver, who has a carriage and horses in charge, directs his mind and senses to the perusal of a newspaper, and releases all hold upon and control over the horses, at a time when he is standing by or near a railroad track that is being cleared of snow by a snow-plow and sweeper, of the approach of which he is heedlessly regardless or unconscious, it presents a case wherein, if damage occurs to the horses and carriage, he is guilty of negligence, and cannot recover (Barker «. Savage, Gt. of App., not reported, see opinion of Grover, J.).</p>

<p>Appeal from a judgment.</p>

<p>In cases of alleged fraudulent transfer to avoid process, the papers, although correct on their face, are not conclusive. Testimony impeaching their validity and effect can be given, of almost any kind not clearly irrelevant, for the reason that the defrauded party oftentimes depends upon the proofs of many facts and circumstances . which together show the mala fieles of the transaction, yet, separately, might be deemed immaterial.</p> <p>When a party by Ms words or acts designedly induces another to believe in the existence of a certain state or condition of things or circumstances, and induces him to act in that belief, the party so inducing him is estopped from alleging or proving a different state of things and circumstances from that he had induced the party to believe in by his statements or acts.</p> <p>An ordinary illustration of this rule is where a sheriff, seeking property of a defendant to levy his execution upon, is informed by • another party that certain property pointed out by him belongs to the defendant, and in consequence' of that statement the sheriff levies upon the same. The party making such a statement is estopped from afterwards claiming that property as his own, and proving that he owned it at the time he made the statement, in order to recover its value from the sheriff.</p> <p>The existence of this rule is necessary for the prevention of fraud and wrong and lies at the very basis of society, and a public officer has to rely upon the protection afforded him by this rule.</p>

<p>What a person said at the time of an accident, of which he was the cause, which would tend to prove that the accident was caused by his carelessness, may be received in evidence to establish the fact of negligence, under the rule that it was a part of the res gestm.</p> <p>The only other question in this case was whether the evidence was sufficient to authorize a submission to, and a finding by, a jury, that the injury to the plaintiff was caused by the negligence or want of care of defendant’s servant while engaged in defendant’s employment. (See the statement in opinion of the court.) Held to be sufficient, and that the court below erred in dismissing the complaint.</p>

<p>Appeal from a judgment.</p>

<p>Appeal from a judgment.</p>

* The plaintiff is the tenant of the defendant under a lease for a term of years, where a right of re-entry is reserved for non-payment of taxes and assessments. The plaintiff for a long period omitted to pay taxes and assessments on the demised premises. The landlord brought ejectment against the plaintiff, to enforce the forfeiture. About twelve years of the term of the lease were yet unexpired.

<p>Where a party calls himself as a witness and is examined in chief, the opposite party may go into the whole case on a cross-examination, and need not confine himself to a cross-examination on the matters that were the subject of the direct examination.</p> <p>A party to the action, examined as & witness, does not become the witness of the opposite party to that extent that the latter should not be permitted to ask leading questions of him in regard to matters that were not the subject of the cross-examination, and it is error in the court to rule in such case that the opposite party, by this course of examination, makes the party witness his witness in regard to those matters.</p> <p>It is the right of the opposite party in such a case (by rigid cross-examination, &c.), to search out every thing in the way of motive (using that word in a broad sense), that would affect the mind of the witness, and its emanations, on the trial.</p> <p>When part of the case-or defense is based upon the state of mind, at a certain time, of a party to the action, who becomes a witness on the trial, it is pertinent and proper that he should state (in answer to leading questions from the opposite party) what was his declara- ' tion as to his state of mind at a subsequent time, in reference to. a subject alleged by him to have induced that former state of mind which was essential to his cause of action.</p> <p>The subject of fraud and fraudulent representations, and actions based thereupon, considered and discussed in the light of many cases cited in the opinion of the court, and made applicable to this case.</p>