Volume 20 — Howard's Practice Reports

<p>An order of arrest sustained, where the defendant agreed to pay cash for beef cattle on delivery; and while the plaintiff and defendant were consulting as to payment, the defendant’s agent drove off the cattle, and had them slaughtered the same day. And the defendant thereupon induced the plaintiff to accept a draft, which, he said, would be honored at sight, but which was, in fact, dishonored and valueless. Held a scheme of fraud.</p>

<p>The court will not ordinarily take from a party the custody of his property without notice to him, and giving him an opportunity to show cause against it.</p> <p>A receiver will not be appointed upon an ex parte application, before the appearance of the defendant, or until he has made default, after service of process, except in cases of emergency.</p> <p>If the process of injunction will not restrain the disposal of property, a receivership will he but of little avail.</p> <p>It seems, that a receiver appointed by this court, would not be able to make title under his appointment to property in another state, in the possession of the owner there, who has not been within this state, or in any way made answerable to the process of the court.</p> <p>Where parties, who are creditors by virtue of a lien, either legal or equitable, created by an executory contract between themselves and the principal debtors, upon the property of the latter, they may not be called upon to permit the property of their debtors to go into the hands of a receiver, except it should be to secure the payment of their debt, or the appointment made subject to their rights.</p>

In 1850, the plaintiff, by his attorney, commenced an action in the supreme court against one Clark, in the course of which the appellants executed an undertaking as bail on arrest of defendant. The plaintiff obtained judgment in 1852, at which time he became, and continues, insolvent, leaving his attorney unpaid.

This action was brought for the partition of a farm of land in the county of Westchester. It comes up by separate appeals by the plaintiff and several of the defendants, from different portions of the judgment, which was rendered at special term, upon the report of a referee, who had been directed to take proof of the title and of the other matters stated in the pleadings.

This is an appeal from the judgment entered upon the report of E. E. Marbury, Esq., the referee, in favor of the plaintiff. The action was brought by the general assignees of Messrs. Lane, West & Co., to recover from the defendant moneys paid by that firm, as ships’ husband in the year 1855 and 1856, to insure defendant’s interests in the schooners Emeline and Kate Stewart.

<p>The act of April 17, 1860, prohibiting certain exhibitions and plays within the city and county of New York, on Sunday, held to be constitutional and valid, as a lawful exercise of legislative authority.</p> <p>Consequently, the defendants, by exhibiting on Sunday, a play called “ One of our People,” or the “ Brave Isaac,” in the building Nos. 37 and 39 Bowery, known as the “New York Stadt Theatre,” incurred the penalty prescribed by this act, to wit: guilty of a misdemeanor, and in addition to the punishment therefor provided by law, subjected to a penalty of $500, with a forfeiture of license.</p>

In these cases the plaintiffs, after a regular trial, obtained judgments against the defendants in the marine court of the city of New York. The comptroller of the city of New York, under the act of 1859, (Laws of 1859, p. 1127,) caused a motion to be made in the court of common pleas to open the judgments, on affidavits alleging fraud in obtaining them.

<p>A mortgagor, who has sold and conveyed the premises subject to the mortgage, is not in a position to oppose the appointment of a receiver, for the protection of the property to other creditors.</p> <p>What acts of neglect of mortgaged premises, connected with the probable insolvency of the mortgagor, sufficient to authorize the appointment of a receiver.</p>

<p>The plaintiff produced affidavits to show that he was not included in the defendant’s schedule of debts ; received no notice of application for discharge; and was a citizen of another state, neither joining in the discharge, nor receiving any dividend from insolvent’s estate; and he contended that his debt was not extinguished.</p>

This was an action upon an attachment bond, given by the defendants on releasing a vessel upon which the plaintiffs claimed a lien for repairs. Held: and firmly bound unto the plaintiffs, in the sum of one thousand two hundred dollars, to be paid to the plaintiffs, their executors or administrators, and for which payment said defendants bound themselves, their heirs, executors and administrators, jointly and severally.

The prisoner was indicted for arson in the first degree, but the district attorney said he doubted whether he had sufficient evidence to convict him of arson in any degree, unless it was the fourth. The prisoner pleaded guilty of arson in the fourth degree, and threw himself upon the mercy of the court, and asked that sentence upon him be suspended, and that he be discharged from imprisonment.

The defendants, Calvin F. S. Thomas, Jedediah H. Latlirop, and Solon H. Lathrop were partners in trade at the city of Buffalo. On the 3d day of December, 1856, believing themselves to be solvent, Jedediah sold out all his interest in the business and assets of the firm to his co-partners, and retired from the firm.

The legislature, at their last session, enacted a law authorizing John Kerr and others, defendants in this action, to construct a railroad in the city of New York, running through Green street, University Place, Broadway, and other streets, on a route commonly known as the “ Broadway Parallel,” to be constructed on the most approved plan for city railroads, and run as often as the convenience of passengers may require, and to be subject to such reasonable regulations as the…

The mayor, &c., of the city of New York, demur to the complaint in this action, because, first, no cause of action is stated against the city corporation as defendants; second, that the People &c. and the other plaintiffs are improperly j oined in this action as against the city.

<p>Equity will reform, an assignment in trust for creditors, making preferences, where the draftsman has made a plain mistake in reducing to form the instructions or the expressed intent of the assignor, but not his silent intent.</p> <p>But such an instrument will not be reformed upon the answer of the defendants, when all the persons interested in the assignment are not parties to the action.</p> <p>The § 274 of the Code, that the judgment may grant to the defendant any affirmative relief, does not apply to cases where the proper parties are not before the court, and can only be brought in by cross action.</p> <p>Evidence of mistake in reducing the assignment to writing is not admissible to explain away the fraudulent intent expressed upon the face of the instrument.</p>

Two motions were made on behalf of the plaintiffs in this action: one to strike out a portion of the defendants’ answer, and that certain parts of it be made more definite and certain, or that defendants be required to elect as to certain defences; and the other, for the appointment of a receiver.

The Bank of the Commonwealth, the relator in this case, is a banking association in the city of New York, formed under the act to authorize the business of banking, passed April 18, 1838. Its capital stock actually paid in amounts to $150,000, of which the sum of $188,884.84, is invested in real estate occupied as a banking house,.&c., which sum being deducted from said capital, leaves a balance of $561,165.16.

Motion to stay proceedings in first entitled suit until after the trial of the suit secondly entitled. The plaintiffs in the first entitled suit, state in their complaint that one Thomas W. Smith was indebted to such hank in notes in the sum of $5,500, and in drafts upon R. S. Torry, accepted by said Tony, in the sum of $1,033.33,. protested for non-payment.

<p>Service of notice of motion for a mandamus, on a majority of the contracting board (a part of the canal board,) of the state, including the chairman, held a sufficient service.</p> <p>When a party has no other adequate remedy, and his right is clear and undoubted, ma/ndamus is not only the proper remedy, but is one of the most efficient proceedings known to the law for the enforcement of a right.</p> <p>Where a contractor by his proposal, affidavits, certificates, bond, penalty, sureties, justification, and all the preliminary conditions required by the contracting board in their published notice to contractors for proposals to do certain work, has fully complied therewith, and is the lowest bidder, no combination with other bidders appearing, the board are bound by statute to award him the contract.</p>

<p>It seems3 that where a judgment against the mayor, &c., of the city of New York, is vacated on application of the comptroller under the statute, for fraud alleged, and a new trial ordered, the plaintiff will not be allowed costs, as terms upon which the judgment is vacated. In this case, $10, costs of the motion to each party, was ordered to abide the event of the action.</p>

<p>It is no ground to vacate a judgment for costs entered by the defendant, that the costs were not taxed, where the costs are on notice retaxed and the judgment corrected accordingly.</p> <p>It seems, that whore motion papers are badly defaced with interlinations and erasures, the court will deny the motion for that reason.</p>

<p>Where in an action against a collector of customs judgment is obtained against him for the amount of duties exacted and received by him, under protest, for goods imported, the owner-plaintiff can issue his execution against, and the collector is liable personally, for the amount of the judgment.</p>

<p>An order of arrest should be obtained on affidavits; no issue as to alleged fraud can be made by the pleadings.</p> <p>Where statements made in an affidavit to obtain an order of arrest were, that the defendant made representations to the plaintiffs, upon faith of which they received and gave the money for the check (sued on) and which representations were charged to have been false3 held sufficient (if true, and they were not denied) to sustain the arrest.</p>

<p>Where an ordinance of the common council of the city of New York, under which work is to be done, provides that the work is tobe done under the directions of the street commissioner and one of the city surveyors, it confers no authority on these officers, or either of them, to change or modify in any essential particular, the provisions of the contract, made and entered into for the performance of the work.</p> <p>When the specification issued by the street commissioner is made part of the estimate of the contractor, and which is incorporated into the contract, the common council thereby authorize the street commissioner to contract only for the work thus specified, and the street commissioner has no authority to make any other contract with the contractor, or to change or modify any of the provisions of the proposal after the same has been ratified and confirmed by the common council.</p>

This was a motion made on behalf of plaintiff to change the place of trial in this cause, from the county of Lewis, where it was ordered on the demand of the defendant, and restore it to the county of Oneida, where it was originally fixed in the complaint.

<p>A denial by a debtor of facts sworn to on the part of the plaintiff, is not sufficient to vacate an order of arrest. There must be a preponderance of evidence either by other witnesses or by the statement of other matters to confirm the defendant’s denial.</p>

Motion to set aside a judgment entered by confession on the ground of the insufficiency of the statement. The statement and confession were as follows: “ Judgment is hereby confessed in this cause for the sum of two hundred and thirty-three dollars and seventy cents, and I hereby authorize the plaintiff or his attorney to enter judgment for the above sum, together with costs of this suit, in the clerk’s office of the county of Saratoga, and in this court.

<p>Where an individual, a resident of the state of Wisconsin, purchased a bill of goods in the city of New York, on an agreement to give his note therefor, to be indorsed by a certain person residing in the state of Illinois; that the goods were delivered and the note executed by the maker in the city of New York, payable at the bank of the indorser in Illinois, where the indorser made his indorsement, and which was subsequently sent by the maker, by mail, and received by the vendors of the goods in New York, in pursuance of the agreement,</p> <p>Held, that the contract of the maker was to be performed in Illinois; but the contract of the indorser was to be performed in New York, and was governed by the laws of New York.</p>

The following are the facts in the above entitled cause, agreed upon by the respective parties thereto and submitted, as the evidence herein to the court.

The facts, &c., in this case will be found fully reported ante page 98. It seems that the following opinion (which from a hasty glance, was supposed to be in another suit between the same parties,) should have taken the place of the one there published as the opinion of the general term, the latter probably being sent by mistake, as it appears to be the original draft, from which the following was written out.

This was a motion on the part of the defendant for extra allowance under section 309 of the Code.

This action was duly noticed for trial on the part of the plaintiffs, at the circuit court appointed to be held at Plattsburgh, in the county of Clinton, in October, 1859. Four Avitnesses residing in New York city, a distance of three hundred miles from Plattsburgh, and one residing in Utica, two hundred and fifty miles therefrom, were subpoenaed by plaintiffs, and their full fees paid for travel and one day’s attendance.

Demurrer to answer. The plaintiff, a foreign corporation, brought this action against the defendant, as acceptor of a draft or bill of exchange, for $3,600. The draft was drawn by V. H. Tisdale & C-o., to the order of E. F. Whittemore & Co., and the latter indorsed the same in blank, and duly delivered the same to the plaintiff.

This was a common law certiorari to referees appointed by the county judge of Cattaraugus county, to review the order of commissioners of highways, touching the laying out of a highway. The referees reversed the order, and this court affirmed their order, and the question now presented, is, shall the prevailing party have costs ?

<p>Where a check (or negotiable paper) is made and delivered to a person for the sole purpose of raising money on it, and an express agreement to take up a former check of the same amount, which had been previously loaned by the drawer to the person receiving it, and the latter, instead of using the check for such purpose, indorses and transfers it to a third person on account of a prior indebtedness due to the latter from such indorser, and for which credit is given by such third person to the indorser, the drawer has his remedy in equity, (although he might be protected at law,) and by an injunction against the holder of the check to restrain its negotiation.</p> <p>The latter is not a bonajide holder for value, although he was ignorant of the purpose for which the check was made, and the agreement under which it was to be used.</p>

Motion by defendant to vacate an order of arrest granted by Justice Davies in this action, on the 13th day of September, 1858. The motion is made upon the affidavits and papers on which the order was granted.

The complaint sets up a claim to a vault in the grounds of this church on Franklin street, under the following deed: The parties of the first part “ for and in consideration of the sum of two hundred dollars, current money of the United States of America, to them in hand paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold and conveyed, and by these presents,…

<p>By the general act incorporating religious societies, the trustees of the society have the power to remove their house of worship from one lot to another, or from one village to another, without any application to the court.</p> <p>It is necessary to apply to the court only in case of a sale of the real estate of the society; and on such application it is not necessary to give notice to the pew-holders.</p>

The defendant was proprietor of a boot store. The plaintiff bought a pair of patent leather boots at the defendant’s store, and paid $10 therefor,—the defendant warranting them to be “ a fine pair of boots.” The plaintiff, on reaching his home, discovered a slight tear in the leg of the left boot, and on the following day he returned the boots to the same salesman, and reclaimed the price, on the ground of the defect.

■ Motion by defendants to set aside amended complaints as irregular, on the ground that they were served without leave of the court.

<p>A defendant may confess judgment (Code, §§ 382-3) to secure contingent liabilities of the plaintiff himself, and as trustee for other similar creditors; the statement specifying the trust, and the particular claims of each, and the plaintiff agreeing in writing to act as such trustee.</p>

<p>Where a complaint demands judgment of separation from bed and board forever, without any demand for relief generally, or for any other relief, and where on demurrer the facts stated do not entitle the plaintiff to the judgment demanded, the complaint cannot be made more definite and certain. It is a matter of special statutory regulation not affected by the general provisions of the Code.</p> <p>Nor can the plaintiff in such action have a decree of nullity of the marriage contract on the ground that the facts stated warrant such a decree; because he has not asked for such judgment in his complaint; and where the defendant has not answered (but demurred) the relief cannot exceed that demanded in the complaint. (Code, §275.)</p>

<p>Where by the terms of a will, three executors are appointed, who are vested with the title of the whole property, real and personal, upon trust; and are qualified, on the resignation of one of the executors and his proper discharge from his office, the remaining executors are vested with the entire estate.</p> <p>Therefore, where one of three executors on application to the court, for leave to resign his trust and to be discharged therefrom, was by,an order of the court duly discharged and his resignation accepted, but the order contained a provision that in case no new trustee should be appointed in his place at the time his accounts should be passed before the referee, then he should, under the direction of the referee, deposit with the N. Y» Life Ins. and Trust Co., all the personal property in his hands, subject to and until the further order of the court, &e.,</p> <p>Heidi that this provision in the order was entirely outside of the proceedings and unauthorized. The remaining trustees were vested with the entire estate, and consequently, with the usual incident of the right of possession.</p>

<p>Where the plaintiffs agreed to sell to one of the defendants, three promissory notes at a stipulated price, and permitted him to take them from their office without exacting payment, and nothing said about giving credit; that said defendant agreed to sell said notes to the other defendant, and permitted him to take them in the same way, and the latter forthwith sold and delivered t-he notes to bona jide customers, received the money, and appropriated part of it to his own use, and sent the remainder, with a note, through the first defendant to the plaintiffs,</p> <p>Held, that both defendants were properly arrested and held to bail; it appearing that all the parties were note brokers, and the plaintiffs alleged that they never intended to give credit to the first defendant, and that it is the universal custom, usage and understanding among note brokers and dealers in commercial paper in Hew York city, that the transfer of the paper and payment of the money therefor shall be simultaneous acts.</p>

Shepard as defendant in each cause. The actions were ejectment. They were commenced in 1854-5. They were put at issue and referred by consent of parties to Judge Paige, Judge Gibson and Judge Belbing, as referees, who heard the same, and to whom they were finally submitted, in January, 1856. In January, 1858, the defendant Hamilton died. In August, 1859, the referees made their report in each cause in favor of the defendant.

<p>Motion for re-adjustment of costs.</p>

<p>Where, on a question of fact, the plaintiff swears one way, and the defendant directly adverse, (as authorized by § 397 of the Code) and the defendant introduces a letter of the plaintiff in evidence, written before the commencement of the action, flatly contradicting his oath, the jury are bound to disregard his oath.</p>

On the petition of Benjamin Clapp and others, children of Jacob Clapp, a commission de lunático inquirendo, issued out of this court on the 31st of March, 1859, to inquire in regard to the soundness of mind of the said Jacob, and his capactity to have the management of his own affairs.

This action was brought by the plaintiffs to recover from the defendants the sum of three thousand dollars, with interest from January 1st, 1855, for printing and binding, at the defendants’ request, fifteen hundred copies of a book known as “ The City Charter, with Kent’s Notes.” The complaint sets forth, that on December 16th, 1853, in compliance with the mandate of a resolution passed that day by the defendants’ common council, the clerk of said common council retained…

Appeal in each cause, from judgment on report of referee. The first of these actions was commenced by the plaintiff, Lawrence, against the defendant’s testator, Gallup, on the 12th day of February, 1855, and the second action was commenced by Gallup against Lawrence, on the 17th day of the same month.

<p>A court of equity has no power to stay by injunction the collection of a tax, alleged to be illegal, on the ground that the plaintiffs were a foreign corporation, and had no place of business in this state.</p> <p>Equity cannot be appealed to in any case to restrain the collection of a tax or assessment which is void.</p>

This was an appeal to the general term of this court from an order made and entered at the special term, vacating a judgment obtained against the defendants by the plaintiff for $2,231.10 with costs. The facts appear at large in the opinion.

<p>There is no distinction in principle as to the right to a lien in rem between the cases of supplies furnished to a ship owned by owners who are subjects or citizens of a foreign country, and a ship owned by owners who are citizens of the United States, but residents of a different state from that in which the supplies were furnished. In both cases it must appear on the part of the material man,</p> <p>1st. That the supplies furnished, or repairs done, were necessary for the seaworthiness of the vessel.</p> <p>2d. That the vessel, its owner, master or agent, had no money or credit in the port where the debt accrued sufficient to raise means to pay for the supplies, save by reference to an implied hypothecation of the rem.</p> <p>3d. A party who advances moneys to the master of a disabled ship, in a port of . another state, to which she does not belong, and in which her owners do not reside,.to" enable the ship to get the required supplies or repairs, is entitled to the same lien in rem as the material man.</p> <p>4th. Where such a lien exists the taking a note in payment does not divest the lien if, on the trial, the creditor is ready to produce and surrender it.</p> <p>5th. It is unnecessary to spread out in the libel the evidence upon which the allegations rest. The particulars and amounts which make up the claim are matters for reference, or for investigation on the trial, if the claimants come into court upon answer.</p>

Appeal by defendants from order of county judge of Sullivan county, requiring William McElhone to pay $18, or be committed to the county jail of Sullivan county. The facts are sufficiently stated, in the opinion of the court.

Motion by defendants to substitute Peter Erik Larsson and others in their place as defendants in the action, -and to discharge the present defendants from all liability to either party.

<p>Appeal from judgment entered upon verdict. Exceptions taken at the trial. The facts will sufficiently appear in the opinion.</p>

This action was for a malicious prosecution and false imprisonment. The cause was tried at the circuit, before Mr. Justice Davis, who dismissed the complaint on motion of defendant’s counsel. An appeal from the judgment upon that decision was made to the general term, by the plaintiff.

<p>Motion by the relator for a peremptory mandamus.</p>

<p>The common council of the city of Syracuse, after the appointment of commissioners to assess the damages to be awarded to the owners of the lands to be taken as a public street, and after the award has been made and confirmed by the lapse of time in which an appeal may be taken, have no authority to discontinue the proceedings.</p> <p>If the common council neglect to proceed and open the street, the court may grant a mandamus to compel them to proceed, when applied to by any person interested in the proposed improvement.</p> <p>And a person who has an interest in the proceedings, to enable him to recover the damages awarded to him by the commissioners, has such an interest as authorizes him to make the application.</p> <p>And a mandamus will be granted in such case, where c< the final determination of all the proceedings,” in the way pointed out by the city charter has not been had, which is required to create the liability of the city to pay the award.</p>

The plaintiff sued to recover the amount of a promissory note, drawn hy James B. Townsend and dated the 19th day of March, 1855, for the sum of $1,250, payable seventy-five days after date to the order of the New York and Saugerties White Lead Company, and indorsed by them and the other defendant, and discounted by the plaintiffs in good faith before maturity and for value.

<p>Where the return to an appeal served on the respondent is imperfect, his remedy must be sought by a special motion to the court. Rule 7, which allows the entry of a common order dismissing the appeal, applies only to cases where there is an entire omission to servo a copy of the return within proper time.</p>

<p>A propeller, which is usually employed as a tug-boat in and about a harbor, violates the act of Congress of July 7, 1830, by exclusively carrying passengers for hire to any given place for a single trip, without a license obtained under and in pursuance of said act. By an exception contained in the act of Congress of August 30, 1852, such a boat is authorized to carry passengers without such license, while it is employed in its legitimate business of towing, &c.; but not where it leaves that business for the purpose of transporting passengers.</p>

<p>Where a broker loans money on a promissory note, as the agent of another, and charges and receives a commission for the loan, without the knowledge or participation of the lender, the transaction is not usurious,</p> <p>Where Sayre testified that he loaned the money to Hardenburgh, took the note and gave it to Hayward, from whom he (Sayre) got the money, and that Hayward received a share of the money paid to him, held3 that this evidence did not warrant the jury in finding the note usurious. Hew trial ordered. (Seems to be a pretty close case,)</p>

<p>A complete title to a chose in action, consisting of a debt due from a third person, passes by its assignment, without notice to the debtor.</p> <p>A voluntary payment by a judgment debtor of an execution against him to the sheriff, under § 293, cannot prejudice a prior assignee of the judgment in good faith. (See to the same effect Robinson agt. Weeks, 6 How., 161.)</p> <p>And it makes the payment none the less voluntary, that an order was issued and served on the judgment debtor, under § 294 of the Code, but by consent was withdrawn before the payment by the debtor.</p>