Volume 2 — New York City Court Reports

<p>Protest of check—books of dead notary as evidence. When the notary who protests a note dies, the protest may be proved by producing his notarial book, proving its character, that the handwriting is that of the notary, and that it was a book kept for the purpose of entering protests, &e.</p>

<p>Trial by the court without a jury.</p>

<p>Composition in bankruptcy. Regularity of proceedings. Tender. Conditions. The resolution, for composition in bankruptcy and its approval by the court, followed by payment, operate ipsofacto as a discharge. When jurisdiction attaches everything done within the power of that jurisdiction will, when collaterally questioned, be held conclusive. Where the creditor refuses to receive the payment, the necessity for a tender is dispensed with. If a tender is refused on a specific ground, no other can be urged against it.</p>

<p>A youth of thirteen years, employed to feed a wood-chopper, was injured while adjusting a belt belonging to the machinery of the establishment. It was out of the line of his special employment, and the direction was given by a fellow-workman. Held, that the employer was not liable.</p> <p>See note at end of case, on Infants in Dangerous Employments, and as to Who are Fellow-Workmen.</p>

<p>Death benefits. Benevolent society. Where a member paid his dues to an officer of the society at a time and place other than that specificallydesignated and appointed for such purpose in the bylaws, and the same are paid into the treasury of the society, and the fact entered on its minutes which were read and approved of at its next meeting,—Held, that the payment was legal and preserved the member’s status.</p> <p>Where a subordinate lodge is charged with the duty of reporting certain facts to1 the Grand Lodge as a condition precedent to imposing on the Grand Lodge the duty of assessing and collecting death benefits, and the subordinate lodge refuses to perform this duty, the person to whom it is owing may maintain an action against the subordinate lodge for such breach of duty, and the sum which the Grand Lodge would have raised if such duty had been performed,—to wit, $1,000,—is the legal measure of damages.</p>

<p>While a parent is not liable for the tortious or negligent acts of his minor children, he is liable if he negligently leaves a loaded revolver in an unlocked bureau drawer in a room in which his minor children are allowed to play, if one of them, not knowing the danger, takes the pistol and inflicts injury upon the person or property of another. The ground of liability is the negligence of the parent.</p>

<p>Where one or more defendants are sued upon a joint or several liability, and one answers and the others make default, the entire costs may be taxed against all the defendants-</p>

<p>Where one without title or permission enters into and builds upon the lands of another, he becomes a squatter, and may be proceeded against as such ; or, if he maintains the possession thus obtained by force, he may be proceeded against for forcible detainer. What constitutes adverse possession.</p>

<p>Where a person employs a broker to buy or sell a particular kind of stock, the latter becomes a fiduciary in regard to the moneys which come into his hands; but if moneys be deposited with the broker from time to time as margins, the fiduciary relation necessary to authorize an arrest does not exist between the broker and the customer.</p>

<p>A corporation cannot conceal itself to avoid the service of process.</p>

<p>Statues of limitations as applicable to legal represenatives or heir at law.</p> <p>Section 392 of the Code of Civil Procedure does not apply to a case where an executor or administrator qualifies shortly after the</p> <p>death of the decedent. When the statute of limitations has once attached, it is not revived by this section.</p>

<p>The defendant, who is a builder, was employed by Mrs. Salter, the tenant, to make certain repairs to the house she occupied. The defendant sent some of his men to make such repairs as Mrs. S. directed. While making the repairs, the men sent by the defendant opened a grating in front of the basement door, and the plaintiff, a servant employed by Mrs. S., fell through into the cellar below and was severely injured. The question of negligence was submitted to the jury, as was also the question whether the men were acting under the immediate direction of the defendant or of Mrs. S. The jury havingPound for the plaintiff,—Held, that the verdict must be sustained. That the men who opened the grating were employees’ of the defendant, and he is liable for their negligence</p>

<p>Appeal from judgment entered on the dismissal of the complaint.</p>

<p>Injunction in summary proceedings. Equity will not restrain an action of ejectment or summary proceedings, where it is apparent that the plaintiffs have a good defense to such action or proceeding at law.</p> <p>Where several courts have concurrent jurisdiction, the right t® determine the controversy belongs to the tribunal to which resort is first had.</p> <p>If the plaintiffs, who are proceeded against as tenants, have a defense which is available at law, they must make it in the proceeding without resorting to a court of equity.</p>

This action was tried before Judge Shea, and decided by him a few days before his term of office expired. His term as justice expired December 31, 1883, and he signed the findings of fact and conclusions of law January 4, 1884. Judge Shea held that he had power to do so. The defendant moved to vacate the findings and the judgment entered thereon, on the grounds before mentioned, which are assigned as irregularities avoiding the judgment.

<p>The parties made an agreement for the exchange of certain real property. They agreed to convey the property “free from all incumbrance,” except a mortgage which was to be assumed. The deed which the defendant held for his property contained" a covenant against nuisances, and on the day for closing the contract, the plaintiff refused to take title, on the ground that the covenant aforesaid constituted an incumbrance. Held, that the covenant against nuisances was an incumbrance on the property, as it restricted its use, and that the plaintiff was entitled to recover $-00 damages, that being the sum which the party in default stipulated to pay to the other.</p>

<p>Dissolution of benevolent society—Rights of members. An unincorporated society is not dissolved until its funds are divided among its members. An officer who receives moneys belonging to the society and by his negligence loses it, is responsible for the loss.</p>

<p>Where the plaintiff misdescribed the defendant as “ Solomon Toube Company,” and the title turned out to be a name under which Solomon Toube did business,—Held, that as the summons had been served on Solomon Toube, an amendment might be allowed inserting his name as defendant.</p>

<p>Examination before trial in action for libel. While a defendant will not be compelled in an action for libel or slander to furnish evidence in answer to a bill for discovery, the plaintiff may be required to submit to an examination (within proper limits) as to the truth of the libel.</p>

<p>Opening default against corporation on application of stockholder. The court may permit a stockholder to intervene and defend on behalf of the corporation.</p>

<p>Where an agent of the above society, appointed pursuant to an act of the Legislature, transcends his authority, he is personally liable therefor, and the society is not, unless it directed the act or approved of it afterwards.</p>

<p>Malicious prosecution—act of agent of corporation. While a corporation, like an individual, is ‘liable for torts committed, including assaults, libels, false imprisonments and malicious prosecutions, the corporation is not liable for malicious prosecution in the absence of evidence of malice.</p>

<p>Thegplaintiffs agreed to furnish the defendant with “ No. 2” foundry iron. Nothing was said as to the use intended to be made of it. The iron sold was of - the brand called for by the contract. The defendant claimed that in order to make the iron suit its purpose it had to mix Scotch iron with it, and therefore undertook by way of counter-claim to charge the plaintiffs with the increased cost. Held, that such damages were not recoverable.</p> <p>Hule as to special damages in exceptional cases. See note at foot of case.</p>

<p>Appeal from an order overruling defendant’s answer as frivolous.</p> <p>The action was against the defendant as the indorser of a promissory note made by one D. S. James to the order of plaintiff. The complaint, after setting forth the making of said note by D. S. James, alleges: “ That thereafter, and before the maturity of said note, and before its delivery to the plaintiff, the said defendant, Edward D. James, indorsed'the said note, and the same so indorsed was delivered to plaintiff by said D. S. James, for value, before maturity thereof.” The complaint then alleges presentment of the note at maturity, demand of payment, refusal, protest and due notice of protest to the indorser, and non-payment of the note.</p> <p>The answer, first, “ denies each and every allegation in the said complaint contained, not hereinafter admitted or qualified; ” and, second, alleges that defendant nd orsed the note for the accommodation of the plaintiff.</p>

<p>Where plaintiffs sue as upon contract and enter judgment in that form it is a bar to an action of deceit in inducing the credit which gave rise to the cause of action.</p>

<p>Seduction of daughter. Action by parent. The action of seduction is based on mere loss of service, but this is eminently a legal fiction. Proof of the slightest loss of service, or the most trifling injury, if the direct result of the act, is sufficient to uphold the action.</p>

<p>The husband is liable for the tortious acts of the wife committed in his absence, since the Code, in the same manner, and to the same -extent that he was before the Code.</p>

<p>The master is not liable for a criminal prosecution set on foot by his credit clerk without proof that the master either authorized it in the first instance or approved of it afterward.</p>

<p>The defendant owned a second mortgage on certain real property. The plaintiff’s assignors purchased the property, subject to the mortgage, but did not assume its payment. The defendant signed an agreement to take off ten per cent, from the face of their mortgage. The plaintiff’s assignors thereafter conveyed the property, and the vendee paid the balance due on the mortgage without exacting the deduction of ten per cent. Held, that the action could not be maintained.</p>

<p>Measure of damages on sale. Defendant bought a steam engine of the plaintiff for $400, and agreed to sell it to a customer for $682.50, and sought to counter-claim the difference, to wit, $282.05. Held, that in the absence of proof that the engine had no market value, or that the plaintiffs knew of the sub-contract at the time of sale, that the special and exceptional rule of damages claimed was inapplicable.</p>

<p>Renewal of lease. Special partnership. Steam power. Damages. Where a lease is made for two years with the privilege of renewal, and the tenant in due time serves the requisite notice of an election to take the renewal, the original lease is thereby continued in force for the new term. No formal renewal instrument is necessary. When the lease is renewed the tenant is liable for the rent, whether he occupies the premises or not; but with regard to steam power which the defendant was to receive, the rule is different. The actual loss to the landlord in consequence of the tenant’s failure to receive the steam power is in such a case the basis of compensation, and this must be proved.</p>

<p>Liability of corporation and trustees for counsel fees. Where the trustees of a corporation have a contest as to the regularity of their election, or as to the propriety of their conduct, and employ an attorney to represent them, they become personally liable to the attorney for his fees, but the latter has no claim therefor against the corporation. Ordinarily, the officers of a corporation, in employing an attorney, make the corporation liable only in the cases in which it is a party, or is pecuniarily interested. Nothing short of an official act of the corporation, evidenced by an entry cn its minutes or the like, will make it liable for fees in contests or litigations in which it is not a party, or in which it is rot pecuniarily interested.</p>

<p>The defendant as a broker rented the plaintiff’s premises to a customer of Ms for six months and five days at the agreed rental of $500 for the term. The defendant claimed brokerage for the entire year. Held, that the brokerage was limited to the agreed rental and did not extend to the entire year.</p>

<p>Decision on motion for judgment.</p>

<p>Stable-keeper’s lien. The statute giving a livery-stable-keeper alien is a remedial one, and must be liberally construed to advance the remedy. It was intended to give a lien where none existed before.</p> <p>An inchoate lien attaches from the moment the horses enter the stable. It is waived if the statutory notice be not given, and it ripens into an effective lien the moment the required notice is given, and relates back and embraces all charges due.</p>

<p>An owner of real estate may employ as many brokers as he pleases,. and is liable only to the one who finally procures the customer.</p> <p>Where there are two brokers, the one who first calls the customer’s attention to the property is not necessarily entitled to brokerage, and if the other broker in good faith and without collusion consummates the sale he is entitled to the commission.</p> <p>In an action by the first broker it is competent to prove that the owner paid the brokerage to the second party.</p>

<p>Appeal from judgment entered on a verdict directed by the trial judge in favor of the plaintiff.</p>

<p>Breach, of promise to marry. Damages. The plaintiff, a widow, forty six years of age, who had buried two husbands, sued the defendant, who was her junior in years, for breach of promise to marry. There was no allegation of seduction, and no proof that the defendant owned any property or had any wealth. Held, that under such circumstances, it could not be claimed that the plaintiff’s prospects were blighted, her. fond hopes crushed, or her proud spirit broken. Her age and condition would indicate that she had arrived at that time of life when disappointment becomes the rule rather than the exception ; and that a verdict for $2,500 was excessive.</p>

<p>Bought-and-sold note. Sale by broker. Where the terms are agreed upon, the broker should reduce them to writing in the form of bought-and-sold notes. He cannot (unless the parties consent) vary the terms agreed upon by sending to the contracting parties notes containing other terms. The effect of discrepancy between the note sent the vendor and that sent the vendee, considered.</p>

<p>Where the defendant agreed with two others to purchase at auction in his own name, but on joint account of the three, certain wire cloth, the funds for the purchase being furnished by the three, and the defendant subsequently sold the cloth and received the proceeds,—Held, that the three were not partners, and that the two might maintain separate actions at law against the defendant, to recover their respective shares of the proceeds.</p>

<p>Where the mother of six children directed the defendant to deposit in bank to. their credit an amount of money, and the defendant executed the direction by depositing the money in bank in his name in trust for the children,—Held, that a valid and irrevocable trust was thereby created.</p>

<p>Appeal from judgment rendered at trial term.</p>

On July 12,1883, the plaintiff became a passenger on the defendant’s cars, on a trip from Bay Ridge to Coney Island. On passing through the gate at Bay Ridge the ticket was punched by the gateman, and while upon the cars it was punched by the conductor.

<p>'Where a contract of sale is executed, there is no implied warranty as to quality.</p> <p>If the contract is executory, and the goods are to arrive, a different rule attaches. But even where the goods are to arrive, the warranty implied by the law must be reasonable, and the purchaser must bear the risk of deterioration which is necessarily consequent upon the transmission.</p> <p>The value of English currency is fixed by statute.</p>

<p>A guardian may sue in his own name for a debt due to his ward, an administrator may sue in his own name for a debt due to the estate he represents, and a person appointed committee of a lunatic may sue in liis own name on a promissory note given to him as such committee, and in neither case need.the official designation of the party plaintiff be added to his name. The plaintiff in each of these cases is the trustee of an express trust and may sue in his individual name.</p>

<p>The action was to recover damages for injuries done to certain goods in which the plaintiffs had a special property. The damage was caused by an overflow of water said to have been caused by the negligence of the defendants.</p> <p>The facts are substantially these: The plaintiffs occupied the sub-cellar of the building No. 68 Reade street, in the City of New York, for the storage of merino and woolen undershirts and drawers which were consigned to them for sale on commission, and on which they had made advances. The basement and ground floor were occupied by the Dixon Crucible Co., who were the plaintiffs’ lessors. The defendants,' with two of their tenants (Mr. Hill and Dabney & Co.), occupied the second floor directly over the store occupied by the Crucible Co.</p> <p>There were water fixtures on the floor occupied by the defendants, used by them and their two tenants, consisting of a tank over the water-closet, supplying water to the closet and wash-basin and urinal, and there was a pump used for filling the tank, and a pipe, coming up from beloAv, supplying water through the pump to the tank. There was an overflow pipe, commonly called a waste-pipe, both for use "in the water-closet basin and to provide against overflow of the tank in pumping. The fixtures were so arranged that the overflow, in case the tank became full, should run through the pipe into the closet and so off into the waste-water pipe, carrying it into the main street sewer, and the tell-tale pipe was to indicate to the pumper that the tank was full. It Avas. not ■ to carry off the overflow. There Avas a stop-cock, eighteen or twenty inches above the floor, which intercepts the water before it gets to the pump and which regulates and controls the delivery of water to the second floor.</p> <p>The entire supply of water ..to.the building Avas controlled by a stop-cock in the basement occupied by the Crucible Co., which, when turned off, prevented the water from entering any part of the building. It was the custom of this company or' its" employees every night, at about six o’clock, to shut the water off from the building, so that no wafer could be obtained on defendants’ floor after that hour, and this custom was known to and relied upon by the defendants. There is evidence that' on the Saturday evening preceding the injury the employees of the Crucible Co. shut off the water from the building at the close" of the business day, about ten minutes before six o’clock, and it does not appear that it was turned on again, before Monday morning, May 21, 1883. ...</p> <p>On this same evening, Dabney -Co. (defendants’ tenants), remained o.n the second floor (where the overflow occurred), after the defendants and their- employees had left for-the day. •</p> <p>The water arose on Sunday, the 20th of May, 1883, up to the second floor of said premises, filled .the tank and' overflowed, the waste-pipe, for some reason or other (not clearly established), proving inadequate • to carry off the supply.</p> <p>This overflow damaged the plaintiffs’ property to the amount of $1,318.90, for which sum, with interest, the trial judge ordered judgment in favor of. the plaintiffs, on the ground of negligence-on the part of the defendants, and from this judgment the .defendants appeal.</p>

<p>A hotel-keeper who sells goods of his guest to satisfy a board bill is guilty of conversion, unless he is authorized by the guest to sell, or unless he forecloses his lien in the mode pointed out by the statutes.</p>

<p>Notes given on gambling transactions are declared void by statute, but if they are transferred to an innocent holder, and while in his hands the note is renewed, the taint of illegality is removed, and the innocent holder may recover on the renewed note, although he could not have recovered on the original note.</p>

<p>Action on a promissory note. Defense, usury. The facts appear in the direction to the jury to find for the ' plaintiff,</p>

<p>A salesman employed 11 to travel through the southern part of the United States,” and to follow the instructions of the persons “ thus employing him,” cannot he required against his will to travel through other territory, and refusal so to do does not authorize his discharge.</p>

<p>Contracts for the delivery of goods to be manufactured are contracts for the sale of merchandise within the statute of frauds, unless the goods are to be manufactured by the vendors themselves.</p>

<p>The plaintiffs did business under the name of “The Bail way Map and Publishing Oo.” The defendant gave one Taunton an order in the company’s name for 1500 pamphlets. The contract was on an official blank of the company’s on which thes name of B. O. Prescott appeared as general manager, and S. D. L. Taunton as superintendent. There was a printed memorandum on the head: “ Make all checks payable to the order of B. 0. Prescott.” Taunton collected the entire bill from the defendant in installments in money and checks, some of the checks being made to the order of Prescott and some to the order of Taunton. Taunton subsequently, absconded, and the plaintiffs sued to recover the amount of the checks payable to Taunton’s order, claiming the amount as a balance due on the contract, on the ground that Taunton had never accounted to the plaintiffs for the money. Held, that the payment to the superintendent was under the circumstances a good payment to the plaintiffs.</p>

<p>A contract to pay for the use of a party wall is personal to the builder, and does not pass to his grantee by a conveyance of the property. The contract to pay is also personal to the party contracting to pay, and is not discharged by his conveyance of the property, nor by the grantee’s assumption of liability, or by the fact that the grantee used the wall.</p>

<p>Albert Williams, M. D., having applied to. have the ceremony performed, pursuant to a promise of marriage with his niece, the question has arisen whether, on the ground of affinity, there is any law of this State which disqualifies them from entering into the marriage state.</p>

<p>A receiver appointed in supplementary proceedings cannot sell real estate, nor can the debtor be compelled to make a transfer of the real estate to the receiver unless it be situated in another State.</p>

<p>An affidavit in supplementary proceedings should allege that the defendant is a resident or has a place of business within the county—either is sufficient. If the plaintiff proceeds on both grounds he must do so in the conjunctive.</p>

<p>Where a notice of appearance is served by an individual as attorney for defendant and a notice of motion is subsequently served in a firm name, without first entering an order of substitution, the service is irregular.</p>

<p>Ordinarily, possession of property obtained by means of legal proceedings, and by due course of law, does not render the person so possessing themselves wrongdoers in any sense which makes them guilty of conversion, either in taking or maintaining the possession which the law has given them.</p> <p>Proceedings in claim and delivery against a bailee generally conclude the bailor, by reason of the privity existing between them.</p>

<p>The rule as to sufficiency of offers, stated. Verification and omission, effect of. Counter-claim, effect of. How the question of interest is regulated in determining the sufficiency of the offer..</p>

<p>The plaintiff, a workman in defendant’s employ, was' excavating on the defendant’s land so near his neighbor’s lot that the wall upon the neighbor’s land fell into the excavation and injured the plaintiff, who sued Ms employer to recover damages. Held, that as the danger was not within the peculiar knowledge’of the defendant, but alike apparent to the plaintiff and defendant, and as either might have foreseen it by the exercise of ordinary intelligence, the plaintiff was guilty of contributory negligence, and could not recovered. In other words, there was mutual and co-operating negligence on the part of both master and servant, which deprived the latter of any remedy against thé former.</p>

<p>A corporation, unless restrained by statute, mey employ servants of any class necessary for the prosecution of the business, in the same manner as may be done by natural persons. Parol evidence is admissible to prove the official character of the persons who acted as defendant’s officers. Effect of continuing employee after the expiration of the hiring, considered.</p>

<p>The court may grant an allowance not only on the amount of the plaintiff’s claim, but of any counter-claim extinguished by the verdict.</p>

<p>The master of a vessel, as general agent of the owners, has authority in the home port to bind them by his contract for necessaries.</p> <p>An undisclosed principal is not liable if the goods were charged to the agent, and the principal, in ignorance that any claim is made on him, pays the demand to the agent.</p>

<p>If a justice has jurisdiction of summary proceedings he cannot be prohibited from adjudging upon the questions involved, and it cannot be presumed that he will announce an erroneous judgment. The question of prohibition, considered.</p>

<p>The statute of limitations operates on the remedy merely, and does not extinguish the debt; and a payment on account revives the remedy, whether it be made before or after the statute has once attached.</p>

<p>Where a judgment is recovered against a marshal who acted under a bond of indemnity, there is a breach of the obligation, and the marshal may maintain an action without first paying the judgment. Notice to the sureties of the original suit was necessary, so as to enable them to elect whether they would as indemnitors defend the action. The notice may be served on the attorney or one of the sureties.</p>

<p>The defendant made a promissory note for Si,500 to the order of the Mount Morris Bank. The note recited that the maker had deposited with the payees, as collateral security, Emery E. Child’s note-indorsed by Burgess & Goddard for $6,180. The plaintiff purchased the note in suit from the payees, and received with it the-collateral note, from which they erased the names of the indorsers. Held, that the plaintiff was bound to keep the collaterals so as to be able to surrender them, without mutilation or injury, at the trial, and that erasing the name of the indorsers on the collaterals, relieved the defendant from liability on the note in suit.</p>

<p>The defendant obtained a warrant for the arrest of one Clarke for keeping a disorderly house, and for the arrest of “all vile and improper persons found on the premises,”—this being the usual form of warrant in such cases. The plaintiff was arrested by the police under this warrant. Held, that as he was not named in it the defendant was not liable.</p> <p>Gh-ab net warrants condemned.</p>

<p>Where the defendant is defeated at the trial, and succeeds upon-, appeal in having the judgment reversed, with costs “ to the appellant ” to abide the event, and the plaintiff succeeds upon the new trial, he cannot tax in his favor the costs upon the appeal.</p>

<p>The defendant stipulated to try the cause on June 26, or suffer an inquest. He failed to appear on that day, and moved to open the default on the ground that he was out of town on that day, and could not be present. Held, no excuse.</p>

<p>The validity of an execution cannot be inquired into on the return' of' an order in supplementary proceedings. The remedy is by special notion.</p>

<p>Where the action is in forma pauperis, it cannot be stayed on account of the non-payment of costs awarded against the plaintiff in a previous action,</p>

The plaintiff sued to recover damages for injuries done to his property by an explosion of dynamite cartridges known as “ bolognas,” under the following circumstances: In November, 1881, the defendant, who is a contractor, was engaged in removing rock from certain lots on the north side of Seventy-third street, between Second and Third avenues, in the city of New York.

<p>In order to maintain an action for malicious prosecution, the plaintiff is required to prove that the proceeding was instituted without probable cause, and was malicious.</p> <p>The question of probable cause depends upon the prosecutor’s belief, based upon reasonable grounds, such as would lead a discreet person to the belief that a crime had been committed.</p>

<p>A member of an unincorporated society may sue it for money loaned, by bringing an action again st it in the name of its president or treasurer. Having the power to borrow_money the society may issue obligations for its payment,.</p> <p>A society may sue its members for unpaid dues.</p>

<p>Motion for new trial on the minutes.</p>

<p>Where an administrator is a party, his declarations and admissions are evidence against him.</p> <p>A plea of payment is supported only by proof of payment in money or its equivalent.</p>

<p>Liability of dog owners. To charge the owner of a domesticated animal for a bite or other misconduct, the owner must be shown to have knowledge that the animal is inclined to do the particular kind of mischief that has been done. Scienter must be alleged and proved. Dogs are not necessarily nuisances, and their owners are not, as a rule, liable for maintaining a nuisance. The .reasons, stated.</p> <p>Had and vicious dogs may be killed by any one.</p>

The plaintiff, a carpenter, in March, 1884, bought a carpet from the defendant for $38, on the installment plan. After the carpet had been delivered and one installment paid thereon, the defendant sent a chattel mortgage for the plaintiff to sign. As the plaintiff was not home, it. was signed by his daughter, without his authority.

<p>Rank checks. The drawer of a bank check is regarded as the principal debtor, and negligence of the holder in presenting it does not absolutely discharge him from liability, unless he has suffered some injury from the neglect. Burden of proof. Waiver.</p>

<p>Motion for a new trial on the minutes.</p>

<p>A debt contracted by an assignee, though for the benefit of the assigned estate, charges the assignee individually, and the action therefor should be against him individually.</p> <p>When amendment allowed, and on what terms.</p>

<p>Trial by the court without a jury.</p>

<p>Promise to repay money paid by mistake. The plaintiff by mistake paid a sum .of money to redeem defendant’s premises from a tax sale. The defendant promised to repay plaintiff the sum paid, and the action was founded on this promise. Held, that the promise was valid, and the action maintainable. The plaintiff need not prove the regularity of the tax or the sale.</p>

<p>Negligence-MDverflow of water; Liability of occupant. A tenant is -not chargeable with-the duty of turning off a stop-cock on his premises, .•unless be has knowledge or notice that.there is. a stop-cock on his portion of. the premises,, ^.nd that there is danger of an. overflow of water unless the stop-cock is turned oil. Negligence .cannot be inferred or ’' • guessed at from the mere fact of an injury. It must be proved. Tenants have the right to assume and act on the assumption that the water apparatus connected with the closets and house are so constructed that they will carry away into .the streets or sewers whatever water. can, in the ordinary way, reach their premises or the closets attached to them.</p>

<p>Appeal from judgment entered on verdict in favor of the plaintiff.</p>

<p>Motion for new trial upon the minutes. .</p>

<p>Trial by the court without a jury.</p>

<p>Landlord and tenant. Liability of assignees, &c, Where rent is payable monthly in advance, and the assignee enters in the middle, of the month, he is not liable for any portion of the current-month, but only for rent subsequently falling due.</p>

<p>In order to charge a corporation with the debt of another corporation, it is necessary for the plaintiff - to show that the defendant (cor- • poration), at a meeting of its board of directors, assumed the debt in a legal manner.</p>

<p>Motion for new trial on the minutes.</p>

<p>Motion for new trial.</p>

<p>An undisclosed principal may sue in his own name upon a parol contract made in the name of the agent, providing it creates obliga- ■ tions and gives remedies which are mutual; but where an agent executes a lease in his own name as landlord, for a longer term than one year, in a manner not authorized, and the act in consequence does not bind his principal, the latter cannot in turn enforce any liability upon it against the tenant.</p> <p>Leases for a longer period than one year must be subscribed by the landlord or his agent thereunto duly authorized by writing.</p> <p>A seal is not necessary on a lease for a term of one year or more.</p>

<p>A stockholder of a corporation, created under the general manufacturing act, is not personally liable, unless the debt contracted by the corporation is payable within one year. He is not liable for rent under a lease to the corporation, having two years and more to run.</p>

<p>"Where a note, check or draft is. indorsed John Doe, “prest->” ‘f cashier,” or “■ treasurer,” it may be the obligation of the corporation Doe represents, if the act be for its benefit, but where the intention'is clear that the act was intended to create an individual liability, Doe is personally liable.</p>

<p>The action was brought to recover the sum of $150, death benefits, under the constitution and by-laws of the defendant. The defense was that the intestate was not in "good standing” under the by-laws, because his dues were not paid promptly at the time therein specified for the payment, although it was admitted that at the time of the death of the member nothing was owing by him to the defendant, the deceased having in his lifetime paid all his dues. It was also claimed that as the charter of the defendant limited the funeral benefits to one hundred dollars, it was ultra mreS‘for the corporation to agree in' its constitution and by-laws to pay any sum in excess thereof.</p> <p>Meld, that a by-law forfeiting the funeral benefit in case a member’s dues, although fully satisfied, are not paid at the precise time required by the lodge, is unreasonable, illegal and void, and no bar to a recovery.</p> <p>That the amount of benefits must he limited to that authorized by the charter, and cannot exceed the sum therein fixed notwithstanding the by-laws provide for a much larger one.</p>

<p>The plaintiffs, who do business at Paducah, Kentucky, sold to the . defendant a fire-proof safe No. 87, for. which he agreed to pay $400 in cash and a. second-hand safe then in the defendant’s store at Cincinnati. The 87 safe w;as sent on to .Cincinnati. The contract was made at the defendant’s store in Cincinnati, and the delivery of the second-hand safe was to be made there. The plaintiff suffered the second-hand safe to remain in defendant’s store until a fire occurred which destroyed the building and its contents; including the second-hand safe. The present action was to .recover 'the value of said safe.. Meld, that title to the second-hand safe .had passed to the plaintiffs, that the risk attends the title and not the possession, and that the defendant was not liable.</p>

<p>A deposit in a savings hank may he transferred by delivery of the bankbook with intent to pass the title.</p> <p>A notice to an agent which his duty requires him to communicate to. his principal is notice to the latter.'</p>

<p>Appeal from order setting aside verdict in favor of the plaintiff and directing judgment for defendant.</p>

<p>Where a broker employed to sell real estate acts for both buyer and seller and the fact is unknown to his principals, he cannot recover for his services from either party. If, on an exchange of property, it be made known to all the parties, that the broker is acting as a middle man, and is to be paid by both sides, he may recover from both. If the agency be limited to bringing the parties together, and does not involve the duty of negotiating for either, he may recover from both, whether the fact that he was to be paid by both was known or not, as the'mere bringing of parties together does not involve negotiation or call for the exercise of the broker’s judgment or advice. Agents must act in the best of faith toward their principals.</p>

<p>Where a creditor receives a check on a bank in payment of a debt, he takes upon himself the duty of presenting the check to the bank without unreasonable delay. If the creditor is guilty of unreasonable delay, and the bank fails in the meantime, the loss is on the creditor. But if the drawer of the check stops payment of it at his bank, the subsequent failure of the bank is no defense to him in an action on the check.</p>

<p>The defendant testified on supplementary proceedings that he executed a bill of sale to a person named Tyng ; that he was introduced to him by his attorney, and knew nothing of him. The attorney was called as a witness and asked to state who Tyng was. He declined, on the ground of privilege. Held, that the inquiry did not involve a confidential communication and was not privileged.</p>

<p>A recovery of less than §50'in an action for breach of promise to marry, ■ entitles the defendant to costs.</p>

<p>An actress who goes to Europe to fill a three months’ engagement is not leaving the State to defraud creditors.</p>

McAdam, Ch. J. Where it is sought to stay the prosecution of an action because the costs of a former action have not been paid, it must appear from the record that the actions are identical (10 Weekly Dig. 199; 10 Reporter, 152; 9 Daly, 259). The plaintiff swears that he holds two notes of the defendant of the same date and amount, and that the $500 note included in the former action is not the one sued upon here. The motion for a stay will, therefore, be denied. No costs.

<p>Where an order to examine a debtor is founded on the fact that he resides in this county, and the debtor moves to vacate it on the ground that he resides in another State,.—Seld, that, as in either case the plaintiff was entitled to the order, the motion must be denied.</p>

<p>When judgments against trustees become liens on the real estate of the cestui que trust, considered.</p>

<p>A witness subpoenaed by duces tecum may be relieved by the court from producing unnecessary books.</p>

<p>A supplemental answer pleading a general release should he allowed only on payment of all costs to date of the application.</p>

<p>The defendant after issue joined noticed the cause for trial, but the plaintiff failed to put it on the calendar. Held, that the defendant was entitled to $15 for proceedings after notice of trial.</p>

<p>In an action against,a commission merchant to recover the proceeds of sales of consigned goods, the plaintiff ought to give the items of the goods consigned and the defendant his account of sales.</p>

<p>Neither an action nor a counter-claim can be maintained at law by one partner against another growing out of an unsettled partnership relation. The remedy is in equity.</p>

<p>Administrator’s bond. Liability of sureties. Jurisdiction. Tbe sureties of an administrator are liable for costs awarded against their principal, in a proceeding in the surrogate’s court “touching the administration of the estate.” The decree or order to pay is all that is necessary to warrant the action against the- sureties. The city court has jurisdiction of such an action.</p>

<p>Where a public officer succeeds at á trial in obtaining final judgment in his favor, he is entitled to double costs. He is not entitled, however, to a double bill on the mere reversal of a judgment, recovered against him.</p>

It appeared that Mrs. Conway, a widow, occupied a tenement at No. 248 Elizabeth street, and that she disappeared early in April, 1885, leaving the April rent unpaid. The landlord commenced summary proceedings, obtained judgment, and the marshal under warrant put the landlord in possession. Instead of putting the tenant’s goods on the sidewalk they were put in the cellar.

<p>To make the owner of a dwelling out of possession liable to the occupant for an overflow or leakage from water-pipes, it 'is necessary to prove that the owner interfered in some way with the management of the premises by making repairs and doing them negligently, or the like. An owner is not liable for injuries caused by defective pipes unless there be some defects in their construction. .</p>

<p>A book-keeper is not a laborer within .the meaning of the general manufacturing act, and the fact that he was to be paid by the week does not change the result. The nature of the service to be rendered, and not the mode of payment, determines whether the employee is a laborer or not within the statute.</p>

<p>Motion for new-trial on judge’s minutes.</p>

<p>Judgment for costs in action by an infant by guardian ad litem must be entered against the guardian.</p>

In the year Í854, one David McMaster was owner in fee simple of a tract of land on the southerly side of West Twenty-fifth street, in the city of New York. William A. Cummings was also owner in like manner of a lot on the easterly side of McMaster’s property, each being of the same depth, viz., ninety-eight feet and nine inches to the center of the block.

<p>Costs after consolidation of actions. The costs of one action only taxable.</p>

<p>Compound interest not allowable. The mode of computation, stated.</p>

The defendant, by written contract dated July 9, 1886, agreed to convey to the plaintiffs, for $50,700, the lots 939 and 941 Second avenue (situated on the northwest corner of Second avenue and Fiftieth street, being 44 feet 4 inches in width on. the avenue and 80 feet in depth on the street), covered with three houses, two facing the avenue and one facing Fiftieth street.

<p>Motion for re-argument of appeal.</p>

<p>The plaintiffs, who are real estate brokers, were employed by the defendant to find a customer for a valuable lease held by him. His equity was.Iarge and was to be paid for in cash or secured by “ real estate security.” Held, that the term “ real estate security” meant by mortgage on real estate, and that a bond by a real estate owner was insufficient. ' ■</p> <p>Further, that the brokers, not having found a person willing to secure the equity .by mortgage on real estate, were not entitled to brokerage.</p>

<p>Accord and satisfaction—receipt in full. The payment of a portion of an undisputed account, and the giving a receipt in full does not preclude the creditor from recovering the balance unpaid.,</p> <p>The circumstance that the debtor borrowed the money to make the supposed settlement does not alter the legal effect of- the transaction.</p>

An order in supplementary proceedings was served upon the defendant, at the Grand Central Depot, while getting on the train for the State capítol, to attend to• his official duties as a member of assembly from the Fifth District of this city. The defendant has failed to appear, or in plainer language has disobeyed the order. Counsel has appeared for. him and urged the impropriety of the service.

<p>Summary Proceedings. A grantee of lands may as such maintain summary proceedings to recover possession of the premises for non-payment of the rent due subsequent to the grant, and may in the same proceeding include a demand for prior rent assigned to the grantee by the grantor.</p>

<p>Motion for new trial on the minutes.</p>

<p>Appeal from judgment entered on dismissal of complaint.</p>

<p>An application for leave to discontinue is in the nature of a petition to the court for relief, and. does not violate an order staying plaintiff’s proceedings.</p>

<p>Negligence must be determined by what was known before and at the time of the accident, and not by subsequent facts ; in other words, it must be decided' upon the facts as they existed at the time of the injury. Special damages must be alleged as well as proved.</p>

<p>Joint and Several Acts of Negligence—Proximate and Remote Causes. Persons who co-operate in an act directly causing injury-are jointly liable for its consequences, if they acted in concert in causing a single injury. But persons who act separately, each causing a separate injury, cannot be made liable, even though the injuries thus committed are all inflicted at one time, and precisely similar in character.</p> <p>Where separate injuries are so committed, the proximate cause of both is liable for all the damages.</p> <p>The measure of damages in an action by a husband for injuries to his wife are limited to loss of services and expenses which he personally incurs.</p> <p>See note at end of case as to joint wrong-doers.</p>

<p>Contract for services respecting mining lands. Performance. The express stipulations of a contract, where the manner and details are essential, must be complied with. The difficulty or improbability of accomplishing an undertaking will not excuse performance.</p>

<p>S. B. V. opened an individual account with the Bowery Savings Bank. He was at that time executor of the estate of his father, Abraham Valentine. S. B. V. afterward departed this life, and the envelope containing the bank-book was indorsed, “ Trust funds belonging to the accounts of Charles E. Valentine,- Mary Jane Valentine, and John H. Valentine, with Samuel B. Valentine, Ex. and Trustee.”</p> <p>Charles E. Valentine, some years before the deposit was made, executed an assignment to the plaintiff óf all his interest in Abraham Valentine’s estate. It was claimed that the fund on deposit was part of the accumulated income from Abraham’s estate, which,' by the deposit and indorsement on the envelope, was specifically set apart for the said Charles E. Valentine, and, consequently, passed by his assignment to the plaintiff. Held, that on the facts stated, no title passed in the deposit to Charles E. Valentine, or to his assignee. It is doubtful whether a trustee can create a trust in funds held by him in trust.</p>

<p>A provision inserted in a mortgage, that “no part of the premises-conveyed are to be used for any trade, business, or purpose that will prove a nuisance to the owners of the adjoining premises ” is inoperative as a covenant running with the land. The foreclosure of such a mortgage does not continue the inhibition. As such a provision does not inhibit any particular trade, calling, or purpose, it is not such a covenant as amounts to an incumbrance, even if contained in a grant. It merely restricts the use for purposes which may prove a nuisance to neighboring premises. The law, which is impressed on every grant, inhibits such a use, and no force is added to the inhibition by the insertion of these words in the instrument.</p>

<p>First cousins may lawfully intermarry.</p> <p>See note as to the Marriage of Minors.</p>

<p>The legal fee for the service of 'a summons is $1, and 6 cents for each mile traveled in performing the service.</p>

<p>Motion to open judgment recovered against the corporation by default.</p>

<p>Defendants appearing by different attorneys and interposing sepa- ■ rate answers are not entitled to separate bills of costs, if the attorneys so appearing are partners, or if one is the clerk of the other.</p>

<p>A defendant sued for breach of promise to marry pleaded infancy in defense. The jury found that he was of lawful age. The defendant waited until he became of age (according to his theory), and then moved to set the judgment aside,—Held, that the motion . must be denied. The remedy of the defendant was to have appealed from the .judgment, and reviewed the finding of the ■ jury.</p>

<p>Action against Owner of Dwelling for Overflow of Water— Pleadings. Where an owner not in occupation is sued for an overflow of water by a tenant in possession, the complaint ought to allege facts, showing specifically the breach of duty making the owner liable.</p>

<p>An affidavit should allege facts, and not conclusions which are merely the affiant’s opinion. It is for the court to draw inferences and conclusions, and then only from facts proved.</p>

<p>Motion for leave to discontinue action as to defendant, Max Herman, on plea of infancy.</p>

McAdam, Oh. J.—The recent Half-Saturday Holiday act does not prevent the service of papers or the execu- . tion of writs in legal proceedings on that day, or on any part of it.. Motion for leave to-issue new execution granted.

<p>A servant always takes the risk of “ known dangers,” and risks which are patent need not be called to his attention. The plaintiff, an employe of the defendants, fell down stairs, and was injured. He attributed the fall to the want of lights in the hallway. Held, that as no lights had ever been used/in the hallway, and the danger was patent, no recovery could be had.</p> <p>Observation is notice, or supplies notice—which is, in effect, the same thing.</p>

<p>The owner, lessee or occupant of a tenement is under no legal obligation to keep lights in the hallways of the house, nor to maintain hand-rails. The absence of lights or hand-rails does not proye negligence.</p>

<p>Statute of Limitations—New Promise — Joint Debtors. The defendants were partners, and plaintiffs dealt with them as a firm. The firm dissolved, and one of the defendants, in the name of the firm, made a new promise in writing. Held, that as the plaintiffs had no notice of the dissolution, both defendants were liable. '</p>

<p>A condition that no action shall be sustained, unless brought within a specified time, is valid.</p>

<p>A contract of purchase, where the parties intend that the property shall not be delivered, but that settlements shall be had, at appointed times, of the differences in value based on the rise or fall of the market, is void.</p>

<p>Where a debtor pays the widow of an intestate a debt due the deceased, and she afterwards administers, the letters relate back and legalize the payment.</p>

<p>Usury is a crime ; but a mere intention, not followed by execution or attempt at consummation, does not constitute crime. An intention to exact §25 bonus on a loan, expressed the night before the loan was made, is not usury, if when the loan is actually made no unlawful interest is actually reserved or taken.</p>

<p>Where a watch is worn merely as an ornament, and used only on special occasions, it may be reached on supplementary proceedings against the owner.</p>

<p>Trial by the court without a jury.</p> <p>J. Over falser, at Bellefontaine, Ohio, drew his draft whereby he requested the defendant to pay to the order of R. Lamb, cashier, &c., the sum of $500. The payee sent' the draft to the plaintiff herein as agent for collection. The draft was presented to the defendant’s bookkeeper, who filled up a check on the New York National Exchange Bank in favor of the plaintiff for $500. The defendant signed the check, and his bookkeeper gave it to the messenger of the plaintiff, who in exchange for it gave him the draft. Shortly after the delivery of the check the defendant was for the first time informed that the check had been drawn to pay the draft. He thereupon stopped payment of the check at his bank, and telephoned the plaintiff that the check had been given by mistake, and that payment had been stopped. The plaintiff answered, “ All right; send up the draft, and we will return the check.” The defendant thereupon returned the draft, so thg,t the plaintiff has both check and draft. The action is on the check.</p>

The plaintiff sued to recover damages for a breach of contract, by which the defendant, the proprietor of “ Turn Hall,” let it to the plaintiff for an athletic entertainment, to be held on the evening of December 14, 1886. The affair was extensively advertised, and sparring and gymnastics formed a feature of it.

<p>Where money is deposited by a debtor with a third person with directions to apply it in payment of a. debt, without any communication to, or understanding with the creditor, no trust is created which the creditor can enforce.</p> <p>Where, however, money is deposited by C. with B. to pay O.’s creditors, and the latter assent to it, and become privy to the arrangement, a valid trust is created for their benefit, which they may enforce against B.</p>

The action is on a past-due promissory note made by the defendant, and delivered to the plaintiffs for $1,541.30. The answer sets up no defense to the note, but pleads as a counter-claim the breach of two independent contracts* one made April 6, 1886, for the delivery of six boat-loads of coal of 182 tons each, payable thirty days after delivery.

<p>Severance of Action as to Principal and Interest.—Interest is a mere incident of the principal, and, as a necessary consequence, follows it. An action cannot be severed so as to allow judgment for the principal, and permit it to be prosecuted for the interest alone.</p>

<p>Averments as to the representative character of an executor or administrator are unnecessary where the cause of action accrues after the death of the testator.</p>

<p>Referee’s Fees.—A referee may charge a reasonable fee for considering the matter before him, and for making his report.</p>