Volume 2 — Sweeny's New York Superior Court Reports

The action was to recover damages for a breach of two written contracts.

This case was tried before Mr. Justice MoCmsnsr and a jury. The action was against sureties on a bond as follows: “ Know all men by these presents, that we,, Henry A. Burr and Charles St. John, of the City of Hew York, are held and firmly bound unto the Board of Water Commissioners of the City of Detroit, incorporated by the Legislature of the State of Michigan, February 14, 1853, in the sum of fifty thousand dollars, to -be paid to the said commissioners, for which payment,…

This case was tried before Mr. Justice Monell without a jury. It is an appeal from a judgment entered in favor of defendants. The court found the following facts: That on or about the 19th day of September, 1868, the plaintiffs sold to defendants ninety-oue tons and fourteen hundred weight of coal. That the contract of sale was made through one Charles L. Foxwell, acting for and on behalf of plaintiffs.

The action was to recover damages for being forcibly dispossessed of a room, in a building owned by the defendants. The action was tried by a referee, who found as facts that the plaintiff rented from the defendants, some time during the year 1862, a room in the building of the defendants, and occupied the same from such renting to September 4., 1868.

The defendants were sued as copartners, to recover for the use and occupation of the fourth story of the buildings Bos. 87 and 89 Elizabeth street, in this city. The complaint alleged that the plaintiff was the owner of Bos. 85, 87, and 89 of said street. That during the year ending May 1, 1867, the defendants were in the possession, use, and occupation of the fourth story of said Bos. 87 and 89, as tenants of the plaintiff.

This case was tried before Chief-Justice Barbour and a jury. The action was to recover the value of twelve one-thousand-dollar United States bonds. It was alleged that the bonds had been deposited by the plaintiff with the defendants for safe keeping, and which, upon a subsequent demand, the defendants refused to return.

This ease was tried before a referee. The action was brought to recover damages sustained by a collision between a sloop of the plaintiff and a propeller of the defendants, in consequence of which the plaintiff’s sloop, with her cargo, was sunk. The facts are fully set forth in the opinion of the court. The referee found in favor of the plaintiff, and defendants appealed to the General Term.

This case was tried at Special Term before Mr. Justice McOunn. The action was to recover the amount of a debt or demand ■ owing to the plaintiffs by “ The North-western Bank of Georgia.” The complaint alleged the creation and incorporation of the bank by the name above stated, by an act of the legislature of Georgia, passed March 4, 1856. That the capital stock of the bank was fixed at two hundred thousand dollars, divided into two thousand shares of one hundred dollars each.

This ease was tried at Special Term, before Mr. Justice Jones. The action was brought by the appellant as assignee, for the foreclosure of a bond and mortgage executed to his assignor, John W. Wolcott, by the respondent.

This ease was tried before Hr. Justice Fithian and a jury. The Blacldieath Goal Company, incorporated under the general act for the incorporation of mining companies, was indebted to the plaintiff for goods sold and delivered. There were four trustees, and the company had failed to make and file an annual report, as required by the statute, whereby the trustees became jointly and severally liable for the debt.

This was an appeal from an order granting an injunction, made at Special Term, by Mr. Justice McOunn. The defendant, by indenture, leased to the plaintiff certain premises in this city, for one year from the 1st of May, 1869, at a rent payable monthly, in advance.

<p>The failure of the plaintiff, for more than four years, to put his cause upon the calendar, so that it could be brought to a trial when reached in its order, according to the course and practice of the court, entitles the defendant to a dismissal of the complaint, under the twenty-seventh rule of this court.</p> <p>To entitle the prevailing party to an allowance, under the 309th section of the Code, it is not necessary that a trial should have been had. It is enough that a defense has been interposed.</p>

<p>No appeal lies from an order denying a motion to compel a party to make his pleading more definite and certain, and to strike out irrelevant and redundant matter contained therein.</p>

Justice Jones. The action was to recover money received by the defendants to the plaintiffs’ use. After issue joined, the defendants were summoned by one of the judges of this court to be examined as witnesses before the trial, at the instance of the plaintiffs.

The action was to recover for services rendered by the plaintiff, as an attorney at law for the defendant, in prosecuting an action •against the Brevoort Petroleum Company.

Action was brought against the defendant, an attorney-at-law, to recover the amount of a debt due from one Lloyd to the plaintiffs, which they had employed the defendant to collect, and which it was alleged had been collected by him. The plaintiffs alleged that they agreed to allow and pay the defendant a fee of fifty dollars for collecting. The defendant denied that any agreement was made in regard to fee or compensation for collecting.

The evidence in this case established the following facts: That in March, 1867, the plaintiff loaned the defendant'a bond issu'ed by the South-west Pacific Bailroad Company. Three days afterwards plaintiff requested its return from defendant, and was informed by defendant that he had used the bond in obtaining a loan. Plaintiff then told defendant he had no right to use the bond in that manner, and that he must return it that day.

This action was to have the satisfaction or cancellation of a chattel mortgage declared null, and the lien of the mortgage restored. On the 22d of June, 1868, the plaintiff sold to one E. A. Burt the lease and furniture of the Albion Hotel, in this city.

The action was to compel the performance of the following agreement, assigned to the plaintiff. “New York, March 1,1865. “ For value received, I hereby agree, on the payment of a certain promissory note; drawn by Lemuel Arnold, dated December 24, 1864. four months after date, for five thousand six hundred and sixty-six 10-100 dollars, to transfer to the said Lemuel Arnold, or to his order, eight thousand five hundred and eighty-five shares of the capital stock of the Sherman…

The plaintiff claimed to recover from the defendant the sum of $5,118.98 and interest from June 22, 1866, for an alleged balance of moneys collected and received by the defendant as her agent from the executors of the last will and testament of plaintiff’s father (the late Mangle M. Quackenboss).

This action is brought to recover the price agreed to be paid by defendants for twenty-six hogsheads of sugar which were sold and delivered by plaintiffs to defendants. The answer sets up as a defense in bar that the sale was by sample, and that four of the hogsheads delivered were not of the kind and quality of sugar which the plaintiffs agreed to sell to the defendants, and did not correspond in kind and quality with the sample.

This was an action to recover a balance, claimed by the plaintiffs to be due them, for advances and commissions, upon a final settlement of the accounts of four importations of nitrate of soda, made by them for the defendants.

The case was tried before Mr. Justice Jones and a jury. The complaint in this action claimed to recover the price of fifteen barrels of oil, containing 609-|~ gallons, at the price of $1.85 per gallon, alleged to have been sold and delivered by plaintiff to defendants. The defense in the action was based upon the fact of the nondelivery of the oil or any portion of the same.

The indebtedness in this case was contracted in part on July 9, 1869, and in part on July 16, 1869, and arose out of the sale and delivery to defendant of three cargoes of coal. The indebtedness matured part on August 12, 1869, and part on August 19, 1869.

This was an action on a policy of insurance to recover for a loss alleged to have been insured against. The parts of the policy which bear on this controversy are as follows: No. 5,812.

TMs action was commenced in November, 1868, and was tried in November, 1869, before Mr. Justice Jones and a jury.

This action was brought under the “ act to prevent extortion by railroad companies,” passed in 1857, which provides that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so • received, by the party paying the same.” The complaint alleged a separate cause of action against the defendants for asking and receiving a greater rate of fare than is…

Justice Fithian, vacating an order of arrest issued against the defendant. In her affidavit to obtain the order of arrest, the plaintiff stated that she had lived with the defendant as his lawful wife for nearly sixteen years, and until some three months previous to bringing the suit, when he abandoned her and refused to support her, and gave out that he was not her husband, and she had no claim upon him as his wife.

<p>Where a complaint, in the narration of the facts constituting the cause of action, stated several causes of action, one for false imprisonment and another for malicious prosecution, but they were so blended and run into each other as to leave it uncertain which was the real cause of action—Jield^ that the remedy was by motion to have the causes of action separated and numbered, and that a demurrer for misjoinder of causes. of action was not the proper remedy.</p> <p>The rule which requires causes of action to be separated and numbered is not exclusively for the convenience of parties, or merely to furnish them with information concerning the action or defense, but also for the convenience of the court, to assist it in the examination of the questions to be decided.</p> <p>Therefore, until a pleading is made to conform to the requirements of the Code and rules, the court will not take upon itself the labor of ascertaining whether two causes of action are or are not stated in the complaint.</p>

<p>Where the evidence of the defendant’s negligence is conflicting, it is error to take it from the jury, and to determine as a matter of law that there is negligence.</p>

Justice McCunn, vacating an order of arrest against defendant Temple. This action was brought against the defendants as copartners, to recover for money lent and advanced to them by the plaintiffs. Upon an affidavit that the money was obtained through false representations, made by the defendants, an order of arrest was granted.

This action was brought on an instrument of which the following is a copy: “ New York, February 14,1868. “ Mr. G. Carpenter, 13 Chambers street. “ Please pay E. Richardson, Esq., or order, five hundred dollars for value received, besides the amount stipulated to pay Mr. R. out of the proceeds of the claim against the Peabody estate, now in your hands to collect, when the same shall have been collected by you. “ Respectfully yours, “H. B. Melville. [Written across the face:]…

Justice Jones, sustaining plaintiffs’ demurrer to the counterclaim set forth in the answer of the defendant. The complaint alleged as a cause of action that on September 28,1868, the defendant unlawfully and wrongfully took and carried away certain goods, chattels, household furniture, wearing apparel, and jewelry, the property of the plaintiffs, of the value of $4,170, and that he converted and disposed of the same to his own use to plaintiffs’ damage $5,000.

This case was tried before Mr. Justice Monell and a jury. The action was brought to recover a balance for rent due upon a lease under seal. The defendant Breslin, by separate answer, denied each and every allegation contained in the complaint.

<p>An order allowing bail to surrender the principal in their exoneration is appealable. * A motion cannot be renewed upon the same or substantially the same facts without leave of the court for that purpose obtained. The practice upon this point stated.</p>

This case was tried before Hr. Justice Jones and a jury. Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order made at Special Term denying defendant’s motion for a new trial upon a case. The complaint alleged a conversion by defendants of plaintiff’s property, consisting of the contents of a liquor store.

This case was tried before Judge Jones and a jury. Appeal from a judgment entered upon the verdict of a jury. The action was brought for the recovery of the usual broker’s commission for an alleged sale of certain real estate. The answer in effect amounted to a general denial of all the allegations contained in the complaint.

The action was brought against the defendants as trustees of the Simpson Water-proof Manufacturing Company, upon an alleged liability… Held: and the above-named defendants, never having resigned or retired from their said trusteeship, continued to be and were the trustees of said company from its formation until after the time that the indebtedness hereinafter mentioned was incurred. “ That between the 13th day of March, 1865, and the 5th day of June in the same year, the…

The evidence showed that on the 25th of October, 1862, the schooner Isabella sailed from New York on a voyage to Boston, with a cargo of pig-iron and whiting in her hold, and petroleum on deck, which petroleum, being 270 barrels, belonged to the defendant Bridge.

The action was brought to recover margins deposited with defendants, as brokers. In April, 1865, the plaintiff employed the defendants, who were commission stock brokers, to conduct certain transactions in stocks for him, and paid them during that month and the following one, in the aggregate, the sum of $2,000 as margins, as security for any loss in his operations.

This was an appeal from a judgment. This case was tried before Mr. Justice Fithian and a jury. The plaintiff was the publisher of a newspaper called the “ Gazette,” and sued the defendants to recover for publishing an advertisement of the defendants.

This case was tried before Mr. Justice Monell and a jury. The point chiefly litigated on the trial was whether the defendants, Milo H. Parsons and Levi S. Parsons, who defended this action, were liable with Edward F. Baker, also made a defendant, but who did not defend.

This case was tried before Judge Freedman and a jury. The action was brought upon a written contract or sold note, signed by the defendants, for the recovery of damages alleged to have been sustained by the plaintiffs because of the non-delivery to them of forty thousand gallons-of petroleum according to the terms of the contract, which contract or sold note was in the following form: “ New York, February 21,1868. “ Sold to Sterling Oil Works, for account of Messrs.

TMs case was tried before Judge McCunn and a jury. This action was brought to recover the sum of $6,000, alleged in the complaint to have been obtained from the plaintiffs by means of certain false and fraudulent statements and representations made to them by the defendant. Upon the trial a verdict was rendered for the defendant by direction of the court, and the plaintiffs appealed from the judgment entered thereon.

The order appealed from was made upon an application of the defendant to have this cause removed to the United States Circuit Court, pursuant to the 12th section of the act to establish the judicial courts of the United States passed by Congress (U. S. Statutes at Large, vol. i., pp. 73-79). The order denied the application.

Appeals from two orders. The plaintiff was a member of the firm of W. P. Long & Co., which was composed of the plaintiff and defendant.

Appeal by defendants from an order made at Special Term, referring the action, and all the issues therein, to a referee to hear and determine the same. Held: That the answer was insufficient to raise an issue of fraud.

The complaint in this action claims to recover $644.48 for goods, wares, and merchandise sold and delivered by plaintiffs to defendant in October, 1867. The answer is a simple denial of the allegations of the complaint, and issue was joined in the action September 24,1868. On motion of defendant, 'Abraham Speyer, one of the plaintiffs, was examined before the trial as a witness, and his deposition filed pursuant to sections 390, 391, 392, of the Code.

<p>Where a bill of lading requires the carriers to deliver the property to a consignee therein named, or to his assigns, no action can be maintained by the shipper without a surrender of the bill of lading, or the consent of the consignee.</p> <p>Such a bill of lading is like any negotiable instrument, and good in the hands of any person to whom it may be delivered for value.</p>

This action was brought to obtain an injunction restraining the printing and publishing, by the defendant, of a drama or comedy called “ Play.” The complaint alleged that immediately prior' to… Held: in the case of Murry v. Elliston (5 B. and Ald., 657), and in Coleman v. Mathew (5 T. R., 245), that the author, having given his composition to the public in one form, was not entitled to its exclusive use in the other.

This case was tried before Mr. Justice Fithian and a jury. The action was against the defendant as the proprietor of “ Hope’s Dispatch,” a common carrier, to recover for the loss of merchandise forwarded by such “ dispatch ” from Baltimore to the city of Hew York. The defendant’s receipt and contract was as follows: “ Through by rail to Yew York, without break of bulk, via Harrisbnrgh and Central Railroad of Yew Jersey. Hope Dispatch. Fast Freight Line.

The action was against the defendant Hartman as the surety upon the bond of his co-defendant Wuest, the executrix of the last will of Peter Wuest, given under section 18 of 2 Rev. Stat., 72. Letters testamentary were issued to Mrs. Wuest in September, 1866. The condition of the bond was that as such executrix she would faithfully execute her trust and obey all orders of the surrogate. The bond was dated and executed in January, 1867.

The action was upon a promissory note made by Eittig and indorsed by Mittnacht, and payable “ at Ho. 1 Tryon row, in the city of Hew York.” The complaint alleged presentment of the note for payment at the place named therein, and the non-payment thereof. And further, that Mittnacht, the indorser, was present at such presentment, and had actual knowledge of such non-payment, and waived formal notice thereof, and then and since has promised to pay the note.

<p>Where, upon an application for a bankrupt’s discharge, a creditor preferred charges of perjury against the bankrupt and one of his witnesses—held, in an action by such witness for an alleged libel, that if these charges were material to the bankruptcy proceeding, they were privileged, and that the burden was upon the plaintiff to show they were not material.</p> <p>Where, on the trial of such action, it appeared that the bankrupt’s proceeding was attacked on the ground of fraud—held, the charges were material.</p>

This ease was tried before Judge Jones and a jury. The action was brought for personal injury. Held: in a case in many respects similar to this, that it is to be deemed “a part of the employment of a driver of a city railroad car to put a person off the platform of the car who may be there without right, or contrary to the regulations of the company / and also that it is by the company confided to such driver to determine whether…

A demurrer by the defendant to the complaint was overruled at Special Term, and judgment ordered for plaintiff, with leave to defendant to answer over. From this order the defendant appealed, under section 349 of the Code, to the General Term, and the order was affirmed with costs of the appeal. An adjustment of costs was had, and a precept issued to collect the same.

The action was brought for the recovery of $4,500 damages alleged to have been sustained by the plaintiff in consequence of a false representation made to him by defendant in the sale or exchange of some stock.

This was an appeal from a judgment and from an order denying a motion for a new trial. The judgment was entered upon a verdict of a jury rendered in favor of the plaintiff for an amount alleged to be due to him from defendants, for his services as a foreman of a factory for the manufacture of cork hats, under a written contract dated at Philadelphia, August, 1866, by the terms of which plaintiff was to receive $30 per week from the defendants.

The action was against the defendant as owner of the ship Carolus Magnus, to recover for damage to a portion of a quantity of licorice brought by the ship from Liverpool to Hew York in the summer of 1860.

This was a motion to require the. sheriff to pay or deposit with the clerk a sum of money alleged to have been received by the former in lieu of bail, upon an order of arrest, or to apply the same in satisfaction of the judgment which had been obtained in this action. The motion was denied at Special Term, and the plaintiffs appealed.

The action was against the defendant, to enforce his joint and several liability as one of the trustees of the Montana Mill Company, a corporation formed under the laws of this State, arising from the omission of such company to file its annual report, pursuant to the provisions of the statute.

The action was against the defendant to enforce his joint and several liability, as one of the trustees of thé Montana Mill Company, a corporation formed under the laws of this State, arising from the omission of such company to file its annual report, pursuant to the provisions of the statute.

This case was tried before Mr. Justice Monell and a jury. The action was brought to charge the defendant as the acceptor of two drafts drawn by one E. Kingsland. The complaint alleged the making and delivery to the plaintiffs of two several bills of exchange, drawn by E. Kingsland upon the defendant, payable one day after sight, and accepted by the latter, but which he had failed to pay on presentation for that purpose.

The case was tried before Judge McCunn and a jury. The action was against the defendant as owner of the steamship Granada, to recover for loss on part of a shipment of cotton from Charleston, S. C., to this city.

, The action was to compel a conveyance by the defendant to the plaintiff of certain lands in the State of Georgia. The action was tried by Judge Spencer, without a jury, who found the following facts: That on the 31st of August, 1867, by deed of that date, Porteus B. Roberts and Mary A., Ms wife, sold and conveyed to Henry 0. Gardiner and Thomas D. Sherwood (the plaintiff) a certain tract of land in the complaint particularly described.

The action was against the defendants to recover damages for a conspiracy to defraud the plaintiffs. An order to arrest the defendants was granted, which upon motion was discharged at Special Term. The plaintiffs appealed.

This was a motion to dismiss an appeal for a neglect and failure to prosecute. The papers used on the motion show that the appellant made a case on appeal; that such ease was settled by consent of the attorneys for the respective parties; that thereafter the appeal was, noticed for argument at the January General Term, 1870, and placed on the calendar for that term by the respondent.

The action was brought to recover damages for personal injuries sustained by plaintiff while a passenger on one of defendants’ cars, and was brought on for trial before the court and a jury in January, 1868. After the plaintiff had rested, defendants’ counsel moved for a dismissal of the complaint, which motion was granted.

The case was tried before Judge Ebeedman and a jury. The action was brought to recover for a watch and chain and two dollars in money, claimed to have been stolen while the plaintiff was stopping at defendants’ hotel. The plaintiff arrived at the Hotel Jegel on the 9th of December and stayed there until the 18th. During this time, to wit, on the 13th, the proprietorship of the hotel was changed, the defendants then becoming the proprietors.

This action was to compel the specific performance of a contract for the sale to defendant by plaintiff of certain premises on the southwesterly corner of Sixth avenue and Seventeenth street, in the City of New York, consisting of two lots, in depth on each side 100 feet, and in front and rear, 46 feet, more or less, with buildings thereon, of which the plaintiff was the owner in fee.

<p>Contested motions will be entertained and heard only at the regular Special Term of this court, unless differently ordered by the judge holding such term.</p> <p>The practice of one judge vacating the order made by another, and hearing, and deciding the subject-matter heard and considered by another judge, deprecated.</p> <p>The power or authority for such a proceeding is bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and has neyer beep, tolerated in this court.</p>

This cáse was tried before a referee. The action was brought to recover of defendant an alleged balance of account due from him as the agent of plaintiffs in New York. The only defense claimed and urged rested upon the fact that one William W. Cain, a clerk of' the defendant (employed, as defendant claimed, in the business of plaintiffs), had embezzled the amount sought to be recovered, and consequently defendant was not liable.

This was an action of ejectment brought by the children of Sophia L. Davis to recover the possession of certain leasehold premises, situate in the city of Kew York.