Volume 20 — Jones & Spencer's New York Superior Court Reports

Appeal by the defendant Swivel from a judgment entered after trial before a judge at special term without a jury. Also, appeal by the New York Café Co. (limited), from an order of the special term, refusing to resettle or modify the judgment entered in this action, and directing the said judgment to be entered nunc pro tunc, as of June 10, 1884.

<p> Usury—finding against not disturbed.—Notice to produce—what compliance with. </p> <p>In an action to foreclose two mortgages, the defense was usury. Plaintiffs relied on two certificates as to the validity of the mortgage, and as to there being no defense to them. Defendants called a witness who testified to hearing a conversation between one of defendants and the plaintiffs’ testator (the mortgagee), tending to establish the usury-relied on, and also - called two others who testified to admissions by the mortgagee tending in the same direction. The court below found in favor of plaintiff. Held, that the finding should not be disturbed.</p> <p>A notice to produce a certain account-book containing entries of money paid by M. to L. and by L. to M., was given. A book was produced which complied with the notice. Meld, a compliance with the notice, although a witness who testified to having seen this book at a certain interview also testified, that at the same interview he had seen another book.</p>

The application was based on an affidavit, the pleadings in the case, and a notice of motion, which merely asked “for an order permitting the plaintiff to amend his complaint herein.”

<p>Appeal from a judgment in favor of the plaintiff and . against the defendant for $686.50, entered on the verdict of a jury.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by defendant from judgment entered upon a verdict for plaintiff. The action was for damages from negligence of defendant’s servants. The facts sufficiently appear in the opinion.

Appeal by plaintiff from judgment dismissing complaint, entered on a direction of a judge at a jury trial term. The action was for damages from negligence of defendants. The facts sufficiently appear in the opinion.

Appeal by plaintiff, from judgment dismissing the complaint entered upon a direction of a judge at a trial term, with a jury.

<p> Patent—me of—royalties—Oonstruetion of agreement as to.—Trademark.—Sweet Garporal. </p> <p>Plaintiff and defendant, Erancis S. Kinney, entered into an agreement, whereby plaintiff granted said defendant the exclusive use of a certain patented process for treating and curing tobacco during the continuance of the patent, and defendant agreed to pay one cent a pound for every pound of tobacco treated by him by said process; and whereby it was further agreed that should defendant fail to use the process in the treatment of 250,000 pounds of tobacco annually, the license for the exclusive use should cease; but defendant was still to have a license, not exclusive, to use the process in the manufacture of cigarettes and smoking tobacco. At the time of making this agreement, defendant was selling a cigarette, to which he had given the name of “ Caporal.” • He proposed to call cigarettes made according to said process “ Sweet Caporal,” to which plaintiff assented, and he did make cigarettes according to that process and sell them under that title up to a certain period (up to which all royal, ties were paid), after which, neither he nor his transferee, the other defendant, used the process, but they continued to sell cigarettes under the name of “Sweet Caporal.”</p> <p>Held, that defendant, Erancis S. Kinney, was not, under the agreement, bound to continue the use of the process, but was only bound to pay a royalty on such cigarettes as he should manufacture under the process; and that defendants, not having manufactured under that process since the period up to which all royalties had been paid, plaintiff had no claim against them for royalties.</p> <p>Held farther, that as the word “Caporal” had been applied to cigarettes by defendant, Erancis S. Kinney, before he had ever used the process in question, and as the word “Sweet ” prefixed to it was only descriptive of qualhy, the plaintiff could have no right to the exclusive use of those words, either separately or in conjunction, as a trade-mark applicable to cigarettes; and consequently, as there was no evidence of any agreement, as to the use of the name of “ Sweet Caporal,” specially on cigarettes treated under the process in question, or that plaintiff or her assignees should have any exclusive right to use such a name as a trade-mark, plaintiff was not entitled to an injunction restraining defendants from using that name as applied to cigarettes.</p>

<p>Conversion.—Bill of lading attached to draft—property of discounter of draft in goods consigned, where consignee refuses to accept draft or goods. ■— Collector of port—duty as to freight lien of common carrier on such goods.</p> <p>Where a bill of lading is delivered as collateral security, by the consignor to the discounter of a draft on the consignee, and the consignee refuses to accept the draft or the goods, or to pay the duties or freight, the holder of the draft and of the bill of lading as collateral, has no absolute legal right to the possession of the goods.</p> <p>The collector of the port, the goods not being entered in the custom-liouso, but remaining in his custody subject to the duties, charges and carrier’s lien for freight, and he having no notice of any claim by the holder of the draft and bill of lading, is justified in regarding himself as bailee of the carriers, and as holding the goods as their agent and in their behalf and subject to their lien for unpaid freight.</p> <p>The collector’s permitting, upon the carriers filing bills of lading of the goods together with the other papers required by the custom-house regulations, the goods to be withdrawn from the custom-house and re-shipped to the place whence they came, without any notice of any claim on the part'of a holder of a draft with a bill of lading as collateral, will not render him liable to such a holder as for a conversion of the goods.</p> <p>The principle of Strickland ®. Barrett (20 Fide. 465), which is, that where the negligence or laches of the true owner causes or seems to justify one, whose possession was not tortious in the beginning but rightful, in dealing with the goods as his own, an action for conversion will not be sustained, might, with justice, be applied to the case at bar.</p> <p>Corson ®. Oliver (2 Abb. If. O. 852), and Pease ®. Smith (61 If. T. 477), are not applicable to the case at bar.</p>

<p>Award to unknown owners—payment to chamberlain after action commenced., pleaded as defense—effect on costs and interest.</p> <p>In an action to recover an award to unknown owners, payment to the chamberlain, pleaded as a defense, does not, in any way, affect the question of costs upon a recovery by plaintiff. Its only effect is to stop interest on the award from the date of the payment to the chamberlain.</p>

72 in favor of the plaintiff, for damages and costs, entered on verdict of a jury. The facts sufficiently appear in the opinion.

<p>Appeal from a judgment entered on dismissal of the complaint at trial term on the pleadings.</p> <p>The facts appear in the opinion.</p>

<p>Motion for a dismissal of the complaint after trial at special term.</p> <p>The action was for an injunction.</p> <p>The facts appear in the opinion.</p>

Appeals from two judgments entered on the report of a referee, dismissing the plaintiff’s complaints. The facts appear in the opinion.

<p>Appeal from judgment in favor of plaintiff entered on' verdict of jury.</p> <p>The facts appear in the opinion.</p>

Plaintiffs’ evidence as to the special damages suffered by them from the nuisance, enjoined, in addition to that referred to in the opinion of Judge O’Gorman, was as follows : One of the plaintiffs testified, “We think a great portion of our customers come to our store from Broadway along the southerly side of Vesey street. I have seen the effect of this bridge on pedestrians.

Mr. Day, the appellant, was the owner of seven hundred shares of the plaintiff’s capital stock, represented by seven certificates, each for one hundred shares, standing in his name and transferable on the plaintiff’s books by Mr. Day or his attorney, on the surrender of the certificates.

<p> Reformation of instrument—representations of legal effect.—Joinder of actions.—Damages recoverable in action for reformation. </p> <p>A false declaration of the legal purport and effect of an instrument is a sufficient ground for its reformation'—e. g., a lessor, on his attention being called, by the lessee, to the omission, from a proposed written lease, of sundry provisions which formed part of the oral agreement, in execution of which the written lease was to he made, represented that it was a matter of no importance, because the provisions had been previously agreed on and such previous agreement would not be affected by the execution of the lease ; believing and relying on which statement the lessee executed the lease. Held, a proper case for reformation. There was either a mutual mistake, or mistake on one side and fraud on the other.</p> <p>Wilson v. Been, 74 H. Y. 531, distinguished.</p> <p>Damages for breach of instrument when reformed may be sued for and recovered in the action for reformation.</p>

Appeal by plaintiff from judgment dismissing complaint on the merits, entered on direction of judge at trial term before a jury. The complaint averred, and the answer admitted the making of the following contract, in writing : “If I sell my iron ore mine known as the McIntyre bed, in town of Livingston, Ool.

Appeal by defendant from judgment entered on verdict for plaintiff, and from order denying motion for a new trial made upon the minutes. The action was for compensation promised to be paid by defendant to plaintiff, for procuring a person willing to exchange real estate, under a special contract. The facts appear in the opinion.

Submission of an agreed state of facts, under section 1279 of the Code of Civil Procedure. Theresa Salomon and one Cohen made a written contract for the sale and purchase of real estate. Theresa Salomon was by it to make a conveyance to Cohen or his assignees, “ of the fee simple of the said premises, free from all incumbrances.” Cohen assigned to Bryan Lawrence. On the day for performance Theresa Salomon tendered performance to Lawrence.

Appeal by a defendant from an order setting aside a stipulation made between him and a co-defendant. The facts appear in the opinion.

Appeal by defendant from judgment entered upon the verdict of a jury and from order denying motion for new trial made upon the minutes. The plaintiff was the servant of another corporation than the defendant. In the course of his service he was working upon a certain railroad track, awaiting the coming of a car for the purpose of coupling to another by which he stood.

Appeal by defendant from a order' denying his motion to vacate an order for his examination in proceedings supplementary to execution. The ground of the motion to vacate was that the execution had not been returned unsatisfied. The execution was delivered to the sheriff on October 21, 1884, and returned by him February 5, 1885.

Appeal by plaintiffs from judgment for defendants entered upon a direction at trial term before a jury, that the complaint be dismissed. The action was for damages from fraudulent concealment and false representations, alleged to have been made in respect of the credit and means of Freneau & Co., the makers of certain promissory notes which the plaintiffs bought of the defendants. The facts appear in the opinion.

<p>■ Plaintiff’s exception to a dismissal of the complaint at trial term before a jury, ordered to be heard in first instance at general term.</p> <p>The defendants were the stockbrokers of plaintiff, who had deposited with defendants certain securities in a transaction in which defendants had bought for plaintiff shares of railway stock. The plaintiff tendered to them an amount as due by him upon the sale, and demanded the securities deposited by him. The defendants refused to deliver on the ground that the plaintiff owed more than he had tendered. .</p>

Defendant demurred to the complaint on the following grounds : First.—That the court had not jurisdiction of the person of the defendant: Second.—That the court had not jurisdiction of the subject of the action ; Third.— That the amended complaint did not state facts sufficient to constitute a cause of action.

Appeal by defendant from order denying its motion for leave to serve a supplemental answer. The complaint contained, among other averments, the following: “I. That at all times herein mentioned, the plaintiff was, and still is, a dealer in grain, provisions and produce, having his office in the city of Hew York, and having a large number of customers dealing with him in his said business. “II.

Appeal by defendants from judgment entered on verdict of jury, and from an order denying motion for new trial on the minutes. Action of trover against brokers for an alleged sale-against instructions. The defense was (1st) that the goods were sold by plaintiff’s order, and (2d) that they were sold for a general balance due for advances. Further facts appear in the opinion.

Exception to a dismissal of the complaint ordered to be heard at general term. This action was brought to recover compensation for damages which the plaintiff alleges he sustained through the negligence of the defendant. The facts are these : As the plaintiff was passing along Broadway near Maiden Lane, there was an explosion in and under the surface of the street in said Broadway.

Appeal by plaintiff from judgment for defendant, dismissing complaint, entered upon a direction at trial term. The action was for assault and battery. The facts sufficiently appear in the opinion.

Appeal by plaintiffs from judgment dismissing complaint entered upon findings and conclusions by a judge trying, by consent, the issues without a jury. The plaintiffs were the children of Frederick Wuesthoff and his wife Amalia. The action was upon a policy of insurance upon the life of the said Frederick Wuesthoff, in the sum of $5,000.

Appeal by plaintiff from order granting defendants’ motion that the judgment be opened and defendants allowed to amend their answer and have a new trial on the issues so to be formed.

Appeal by plaintiff, from judgment dismissing the complaint, entered upon the complaint and the demurrer to it. Action for damages for failure to deliver a telegraphic message given to defendant for transmission.

Action for damages for personal injuries, viz.: the loss of an eye, caused by defendant’s negligence. Plaintiff obtained a verdict for $8,000, which was confirmed by the general term (51 Super. Ct. 25), and, after return of execution against the property unsatisfied, issued an execution against defendant’s person, no order of arrest having been obtained in the action.

The action was brought to recover certain royalties. Having come on for trial, it was submitted for decision on the following propositions :—11 Plaintiff’s proposition.

' The firm of Siedenbach, Schwab &Co., and the individual members thereof, made a general assignment for the benefit of their creditors, to William Sulzbacher, who having realized from the assigned assets, $50,000, deposited it with said National Shoe and Leather-Bank, the defendant, to his credit, and payable to his order, as such assignee. Said Sulzbacher prior to March 11, 1884, drew out of said bank all of said money except $16,465.42.

Action to restrain the defendants, The Manhattan Railway Co. and the New York Railroad Co. from obstructing or incumbering Pearl street, or for maintaining, continuing or operating the structure of the elevated railroad in Pearl street, in the city of New York. The facts appear in the opinion.

Appeal by defendant from judgment entered against him upon a demurrer and from the order overruling the demurrer. The facts appear in the opinion.

<p>Action on a promissory note. At the trial, a verdict was directed in favor of the plaintiff, and defendants’ exceptions were ordered to be heard in the first instance at the general term.</p> <p>The facts appear in the opinion.</p>

Appeal by the plaintiff from judgment entered in favor of defendant upon the dismissal of the complaint at the trial. Action upon a policy of insurance containing the following clause: “ S. K. Schwenck, on account of whom it may concern, in case of loss, to be paid to him or order, does make insurance and cause himself to be insured, lost or not lost, at and from New York via Norfolk to St. Anns with privilege, &c.” The policy was duly introduced in evidence.

<p> Demurrer to complaint and supplemental complaint—misjoinder of parties and of causes of action.—Discontinuance—how effected. </p> <p>Where the complaint sets forth a cause of action arising out of injury to real property,—viz., a lease of certain premises, owned by the two plaintiffs,—caused by the building and operation of.an elevated railroad, and the supplemental complaint alleges an assignment to one of the plaintiffs, of all the interest of the other in said claim, and also sets forth a cause of action for personal injuries in behalf of the plaintiff to whom the assignment is made,—viz., for injuries to his health, &c., arising from the building and operation of said road,—no change being made in the supplemental complaint as to the title of the action or description of the parties, and no leave to discontinue as to the plaintiff making the assignment having been obtained—a demurrer to the whole pleading will be sustained; first, because, one of said two causes of action does not affect all the parties; and second, because one of the causes of action falls under subd. 2 of section 484 of the Code of Civil Procedure, and the other under subd. 4, and since they do not arise out of the same transaction, they are improperly united.</p> <p>That two causes of action which cannot properly be united, are stated in one count, does not deprive defendant of his right to demur for misjoinder.</p>

The complaiqi; alleges “ that on the 4th day of October, 1884, at or near the premises No. 77*Grand street, in the city of New York, the defendant, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff, the following false and defamatory words, viz : ‘Those people up-stairs keep a whore-house, and I can prove it,’ meaning thereby this plaintiff, whereby plaintiff was injured in her reputation to the damage of $5,000.” The answer was a…

<p>Appeal from a judgment entered against the defendant, February 19,1884, for $40,385.09, on a verdict rendered in plaintiffs’ favor, and from an order denying a motion for a new trial.</p> <p>Action upon a building contract.</p> <p>The cause was tried before Truax, J., who charged the jury as follows :—</p> <p>“The plaintiffs allege that in February, 1882, they entered into a contract with the defendant to make certain changes in a building on the south side of Forty-second street, in this city, according to certain plans and specifications, and that the defendant agreed to have thoso changes made prior to or on July 1, of that year. The plaintiffs say they have complied substantially with all the requirements of their contract. They admit that there was a delay in the completion of the building, but they say that that delay was not caused by any neglect on their part, but was caused by and through the neglect of the defendant. The defendant admits the making of the contract; but he denies that the contract, has been performed as it should have been, and he alleges that the delay which it is admitted occurred, was not through or on account of any action on his part. He denies that the delays in finishing the building and completing the work to be done under the contract, were caused by modifications of, or deviations in the work, varying it from the original 'contract, or that any such modifications or deviations were made at the request of the defendant or his agents; and he expressly alleges that such delays and failure to complete the work were wholly through, and the result of the carelessness and neglect and improper conduct of the plaintiffs. The questions for you to determine, therefore, are: Have the plaintiffs substantially complied with the covenants and conditions of their contract in the building they have given to the defendant ? and, second, were the delays in handing over the building on July 1,' caused by the plaintiffs, or caused by the defendant ? The plaintiffs, as I have told you, say the delay was owing to the changes made in the plans and specifications, by the defendant through his agents. But it is for you to say what is the fact. Did the plans show and call for a Whittier elevator, or did they call for some other ? If, as they have stated, the plans call for a Whittier elevator, then a change was made, and that change excuses any delay caused by such change. In relation to the water-closets, I do not remember that there is any evidence (and if there is, I ask counsel to call attention to it now) that the plans called for any particular water-closet.”</p> <p>Mr. Norwood.—“They were to be as in ‘the Benedick.’”</p> <p>The Court—“ I am of opinion, and so charge, that the plans did not specifically call for the same appliances that there were in the 6 Benedick.’ If that be the fact—if the plans and specifications did not call for any particular water-closet—then, I charge you, it became the duty of the defendant to notify the plaintiffs, in due time, what water-closet he required ; because it would not be just for the defendant to wait until the last day of June to inform the plaintiffs what water-closets he wanted, and on that day say, ‘ put in such a water-closet,’ and then charge them with delay in not having them in by July 1. When did the defendant, then, inform the plaintiffs what water-closet he wanted ? The plaintiff, Mr. Chesley, as I remember the evidence, said it was in June. The defendant, on the other hand, or his agent, produced a letter, dated May 23, in which he notified the plaintiffs what water-closet he wanted. So that I think you may take it for granted that on May 23, 1882; the defendant did notify the plaintiffs that a certain water-closet was required in the building. Was that notification a sufficient length of time before July 1, to give the plaintiffs an opportunity to get the water-closets in there ? In other words, was any delay caused in the construction of the building by the failure of the defendant to inform the plaintiffs until May 23,—what water-closet was needed ? You will consider that in relation to the question of delay.</p> <p>“There was some evidence, too, as to the fire escapes. Now the contract says that the defendant may, if he sees fit, have a fire escape in the building. It was his duty, then, to notify the plaintiffs at a reasonable time before July 1, what kind of a fire escape he wanted, so that the plaintiffs might put it up there ; and if he failed to do so, that failure would excuse the plaintiffs for delay caused thereby.</p> <p>“ So much for the facts of the case in relation to the question of delay.”</p> <p>u There is a question now, as to the compliance by the plaintiffs with the conditions of their contract—whether they performed the covenants of their contract. Have they built the building according to the plans and specifications ? Now a literal compliance is not entirely requisite. Have they substantially built the building according to the terms of the contract %</p> <p>££I charge you that, in order to justify a recovery, before you can find a verdict for the plaintiffs, the defects, if there be any, must be only in the minor details, and must not pervade the whole building. I charge you that if there was any material variation from the specifications, without the consent of the owner, and this material •variation runs through the whole building, so that the defendant has not got what he contracted to get, then the plaintiffs are not entitled to recover in this action. I say, ‘without the consent of the owner.’ By that I mean without the consent of Mr. Clement or Mr. Ellis, who were the agents of the owner—-without the consent of the owner or his agents ; and this consent may be implied from the acts as well as from the express words of the owner or his agents. In other words, is there such a state of facts as would warrant you in concluding from the evidence, that, with full knowledge of the condition in which the work had been done, the defendant accepted the work ? If there be any such facts, and you can fairly draw that conclusion from those facts, then I charge you that there has been an acceptance. In other words, it is not necessary that an acceptance should be in the words ‘ I accept.5 Tou may imply it from the acts of the party. But the acceptance of the architects is not the acceptance of the defendant in this action ; because there is no evidence (I charge you) that the architects were agents of the defendant, so that they could bind Mm by accepting the work.</p> <p>“ I also charge you that the occupation of the building by the defendant is not a waiver of strict performance of the contract; that a party is entitled to retain, without compensation, the benefit of a partial performance, where, from the nature of the contract, he must receive such benefits in advance of a full performance, and is, by the contract, under no obligation to pay until the performance is complete.</p> <p>1 ‘ In relation to the changes in the contract, I have charged you that the architects were not the agents of the defendant, and that they had no right to make any change without the consent of the defendant. There must be no willful deviation from the specifications, and if there was any such deviation, there must be a verdict for the defendant, unless the defendant or his agent has consented thereto.</p> <p>“While the plaintiffs were under obligation to comply with the contract and specifications, still, if the defendant knew that they had not so complied, and accepted and paid for the work then done, without objection, you would be entitled to consider that as a waiver of strict compliance.</p> <p>“ The. plaintiffs claim that they have fully and sufficiently performed their contract according to its terms, and according to the specifications and plans, and that the matters which are the subject of complaint by the defendant, are not attributable to any failure in performance by the plaintiffs, and in considering this claim of the plaintiffs, you are instructed that the rule of law is that if you find that the proof supports this claim, the plaintiffs are entitled to your verdict.</p> <p>“There has been evidence that there was a defect or deflection in the walls. If this deflection in the walls was caused by the plans not being the right kind of plans for the building—if it was caused through a defect in the plans instead of a defect in the construction of the work by the plaintiffs, then that is not the plaintiffs’ mistake, and they are not responsible for it—it is the mistake of the defendant.</p> <p>“If you find that the plaintiffs have performed their contract in every respect except as to time, and you further find that the delay in completing the contract by the time specified, was attributable to changes in the work from the original contract and specifications made at the request of the defendant, of those acting for him, then the plaintiff can recover, notwithstanding such delay.</p> <p>“A substantial compliance only is required, and if the owner suffers the builder to go on after the time limited has expired, with knowledge of its condition, without expressing disapproval, he waives the forfeiture which he might otherwise have claimed. He was bound to express his dissatisfaction at the delay; and if he intended to take advantage of it, should have acted with promptness at the time, instead of allowing the contractor to expend time and money in the completion of the work.</p> <p>“ If the plaintiffs were proceeding to complete their contract according to its terms, and according to the specifications, and changes were made in reference to the elevator, water-closets, or in any other respects, at the request of the defendant or his agent, and such changes, or any of them, prevented the completion of the contract by July 1, 1882, then the plaintiffs are excused for not completing at that date. If you find any of the facts that I have mentioned, which excused the non-completion by July 1, 1882, then the plaintiffs were bound to complete the work only within a reasonable time ; what was a reasonable time is a question to be determined by the jury from the circumstances of the case.</p> <p>“Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects or unintentional omissions, he may recover the contract price, less the damage on account of such defects ; if the jury find the general purpose of the contract between the parties has been accomplished, the plaintiffs are entitled to recover upon the contract.</p> <p>“The principal question is perhaps, in relation, to the compliance by the plaintiffs, with the terms of their contract, in respect to this twelve-inch wall. I leave it for you to determine, whether the twelve-inch wall was completed substantially as required by the terms and specifications of the contract. If you come to the conclusion that the twelve-inch wall, as built, is substantially what the contract calls for, although it may not be the one in every particular, then your verdict will be for the plaintiffs. If, on the other hand, you come to the conclusion that it is an entirely different thing, and does not do the work which was required of it, and which a wall specified in the plans would do, then I charge you the plaintiffs have not performed their contract and cannot recover in this action. I leave that fact for you to determine.”</p>

Application by the plaintiff for judgment, on a verdict for the plaintiff, ordered by the trial court, subject to the opinion of the general term. Action to recover $1,500, deposited by plaintiff as vendee, on signing a contract for the purchase and sale of real estate, also $608.33 expenses and counsel fee in examining title.

Appeal by the plaintiff from a judgment entered on report of a referee. Action to re-open and set aside certain statements of account between partners, and for an accounting.

Appeal by plaintiff from judgment entered upon findings, &c., of judge at special term.

Appeal by plaintiff from order striking the case from the calendar of issues of fact at special term, and directing that the issues be tried before a jury.

The motion was founded upon a covenant in the mortgage, that after default in payment of principal or interest, the mortgagee or his assigns should be at liberty, immediately after any such default, upon a complaint filed on the foreclosure of said mortgage, to apply for, and should be entitled, as a matter of right, and without regard to the value of the mortgaged premises, or the solvency or insolvency of any owner of said premises, or of the mortgagors, and on ten days’…

Appeal by plaintiff from judgment entered upon order and interlocutory judgment sustaining defendant’s demurrer to complaint on the ground that it improperly unites causes of actions.

Appeal by defendants from judgment entered upon findings and conclusions of judge at special term. The plaintiff was assignee of Benjamin Willis, who had made with the defendant William Bellamy, a contract for purchase by the former, and sale by the latter, of certain real estate. The purchaser paid $500 on the delivery of the contract. The contract was under seal. Further facts appear in the opinion.

Appeal by defendant from judgment entered upon verdict of jury and from an order denying motion for new trial made upon the minutes. The action was for damages to plaintiff, for injuries to her received in falling from a car of defendant, and caused, as alleged, by the negligence of defendant’s servant. Further facts appear in the opinion.

Plaintiff’s exceptions ordered to be heard at first instance at general term. The action was for negligence, in allowing West One Hundred and First street to be graded so that part of it went to the top of a wall that retained the bank there, the rest of the street going from the foot of that wall. The wall was about twenty-five feet high. The complaint alleged that the plaintiff’s intestate, while walking in the street, fell from the top of the wall and was greatly wounded.

Appeal by defendant from judgment entered on verdict of jury, directed by the court in favor of plaintiff. The action was brought for the purchase price of goods sold and delivered to defendant by a firm of Vanuxem, Wharton & Co., on a credit of sixty days. Before the sixty days had expired, Vanuxem, Wharton & Co., sold their right of action to the plaintiff, which was a national bank.

The action was to obtain judgment setting aside a transfer of a seat in the Stock Exchange, made by the defendant to his son, in fraud, as was averred, of the creditors of the former. The court below found, among other things, that said transfer was without valuable consideration. Further facts appear in the opinion. The judge directed that the complaint should be dismissed.

Appeal by defendant from judgment entered upon the report of referee. The action was on a building contract for the value of . materials and labor furnished by plaintiff while building, for defendant,' a house.

The defendant, by an instrument in writing, leased certain premises to the plaintiff, at a yearly rent of $2,500, payable monthly in advance, for a term of three years from May 1, 1884. Plaintiff sublet the upper part, at the monthly rent of $91.66, to one Boera, who entered thereon May 1, 1884.

<p>Contract—meeting of minds on subject of—Unilateral mistalce, effect of —: Warranty by exhibition of sample—Measure of damages, vendor no title—Breach of contract to deliver in presentí, time of—Error on trial, curing of.</p> <p>Where the subject of the contract is plainly described in the agreement signed by the parties, the agreement is of itself the best evidence of meeting of minds and assent, and, in the absence of fraud or mutual mistake, is conclusive.</p> <p>Where the mistake is that of one party alone, the rule of law is that whatever his real intention may be, if he manifests an intention to another party so as so induce that other party to act on it in making a contract, he will be estopped from denying that the intention as manifested was his real intention, and cannot avoid the contract on the ground of mistake.</p> <p>Where a sale is made by sample, the possession of the sample by the seller is constructively sufficient possession of the bulk of goods from which the samples are represented to be drawn,to authorize the purchase]-, in the absence of any evidence to the contrary, to beliqve and act on this belief, that the vendee was actually in possession of the bulk; and is sufficient to raise by implication a warranty of title to the bulk in the vendor. Want of actual possession of the bulk is in such case, as between the vendor and vendee, immaterial.</p> <p>The measure of damages against the vendor for breach of contract of sale of personal property, the vendor in fact having no title to the property sold, but making the sale innocently, is the difference between the contract price and the value at the time of breach.</p> <p>The time of breach of contract of sale and delivery in presentí, is, as against the vendor, when there is either an absolute refusal to deliver, or a distinct announcement of an inability to deliver.</p> <p>Error in exclusion of evidence is cured by the subsequent admission of evidence on the same point offered by the party against whom the error was committed.</p>

The complaint alleged ¿hat on April 16, 1885, one George F. Wilson, engaged in business in New York city, made an assignment for the benefit of creditors, of the property of the limited partnership carried on under his name, and of which he was general partner, to plaintiff, which assignment was duly accepted by plaintiff, and filed in the county clerk’s office April IT, 1885 ; that plaintiff, on the same day, took possession of the assigned property and proceeded to take an…

Appeal by plaintiff from dismissal of the complaint a trial term, on the opening of the case. The facts are stated in the opinion.

The action was brought to recover damages for an injury to the plaintiffs’ horse, alleged to have been caused by the negligent driving by the defendant’s servant of his ice wagon, over the foot of the horse. The injury was so severe, that it, in the end, occasioned the loss of the horse. The defendant interposed as a defense a general denial, and alleged contributory negligence on the plaintiffs’ part.

entered on a verdict in favor of plaintiff, and from the order denying defendant’s motion on the minutes for a new trial. The action was to recover damages for injuries sustained by plaintiff while in the employment of defendant as a longshoreman, on November 27, 1882, on the steamship Catalonia. The facts are fully stated in the opinion.

The substance of the allegations of the complaint is as follows : The New York, Ontario and Western Bailway Oo. was indebted to plaintiffs in the sum of $85,000 ; plaintiffs, having wholly failed to procure the settlement and payment of this indebtedness, after protracted and persistent efforts to that end, were persuaded by the defendant Winslow (president of said company), to confide all negotiations for such settlement to defendant Bard.

<p>Appeal from, order requiring defendant to furnish a bill of particulars.</p>

Appeal by defendant from a judgment of $14,402.95, entered against it upon the verdict of a jury, and from the order denying defendant’s motion upon the minutes for a new trial. The facts appear in the opinion.

Appeal by defendants from a judgment enjoining and restraining them from using the sidewalk in front of their store for certain purposes.

<p>Appeal from a judgment of the special term decreeing foreclosure and sale of mortgaged premises.</p> <p>The facts and exceptions appear in the opinion.</p>

<p>' Appeal from judgment entered upon the decision of a judge at special term.</p> <p>The facts appear in the opinion.</p>

The action was brought to recover upon a policy of insurance for a loss sustained by fire. Among other defenses, the answer set up an allegation that, in accordance with a condition in the policy authorizing a cancellation thereof by the company at any time on notice, and on return or tender of pro rata unearned premiums, the policy was duly canceled prior to the loss in question.

The action was brought to recover the value of sixty-five bales of cotton lost in transportation by the defendant, as a common carrier. The facts appear in the opinion.

- The complaint avers that the plaintiff is the only child, and heir at law of Gershom B. Smith, deceased ; that Gershom B. Smith died leaving a last will and testament, which was duly proved on February 12, 1883 ; that on the sanie day, the defendant qualified as executor ; that by the third clause of the will, the said Smith devised certain premises owned by him in fee, and known as Nos. 18 and 20 Howard street, in this city, to the defendant Cornell as executor in trust…

<p>Appeal from judgment in favor of plaintiff against defendant, entered on report of referee.</p> <p>The facts appear in the opinion.</p>

The action was brought to obtain an adjudication that a certain bond and mortgage had been canceled and satisfied, as provided for in the will of Jacob Weeks, deceased, and to obtain a discharge of record of the mortgage, &c. The facts are substantially as follows : Jacob Weeks died September 9, 1881, leaving a widow, Catharine Weeks. At the time of bis death he owned a. bond and mortgage for $15,000, made to him by his-brother, Nathaniel T. Weeks, and Mary'Weeks, his wife.

' Hearing upon the return to a writ of certiorari issued to review the proceedings of the Board of Education of the city of New York, whereby the relator was removed as teacher in the public schools of the city. The facts appear in the opinion.

Appeal by defendant from judgment in favor of plaintiffs, entered upon the findings of a judge at special term.

Plaintiff’s exception to the dismissal of the complaint ordered to be heard in first instance at general term. Action for damages from alleged negligence of defendant The testimony showed that the plaintiff, a workman employed by the defendant, was directed by the foreman of the latter to go upon a scaffold to do work there. The scaffold had been built under the order of the defendant. The scaffold fell while the plaintiff was at work upon it.

Action for an alleged wrongful taking of certain goods. Plaintiff claimed title to them under and by virtue of a purchase made by him August 7, 1888, at a sheriff’s sale under an execution upon a judgment recovered by him in a certain action in which he was plaintiff and Ettel & Mackintosh were defendants.

Appeal by plaintiff from judgment entered against him for costs upon the verdict of a jury, and from order denying his motion upon the minutes for a new trial. Action for an alleged wrongful taking of property.

Plaintiff was the holder of a promissory note made by the defendant to the order of one Clifford W. Clarke, and by said Clarke indorsed and delivered to the plaintiff. Clarke died before the trial took place. On the trial the defendant, who had been called as a witness in his own behalf, was asked by his counsel two questions, which tended to show that the note in suit was given by the defendant to said Clarke, to take up a note on which defendant was bound.

Appeal by defendant from judgment entered against him upon the verdict of a jury, and from order denying motion for a new trial. Action to recover the value of certain goods purchased by plaintiff at an auction sale of the goods and chattels belonging to the St. James Hotel, which .he could not get, although he had paid for them. The sale took place on April 24 and 25, 1883. It was conducted by an auctioneer, under the direction of the defendant.

Appeal by plaintiffs from judgment dismissing the complaint upon the merits entered upon the report of a referee.

Action to recover $6,298.87, claimed to have been received by the defendant to and for the use of the plaintiff and her assignors. The referee found the following facts :—“In and prior to the year 1873, one John Eogers, father of the plaintiff, owned the fee of a lot lying between One hundred and eighty-second and One hundred and eighty-third streets, in the city of New York. The lot was mortgaged to the Manhattan Savings Bank. Eogers died July 17, 1871.

In the year 1883, the plaintiff, by motion, asked for the same relief as was demanded in the moving papers, upon which the order' appealed from was made. No leave to renew the motion was applied for or granted.

<p>Appeal from order of the special term, sustaining plaintiff’s demurrer to the second and third defenses set forth in the defendant’s answer.</p>

The conditions on which the defendant was permitted, by an order of the special term to serve an amended answer, were not complied with, and thereafter the-defendant stipulated to proceed to trial under the original pleadings. The trial took place before a referee who, on consent of the parties to a reference, had been appointed by the court to hear and determine the issues.

The controversy in this case arises upon a delivery by plaintiffs to defendants of three hundred and ten bellies, weighing two thousand seven hundred and thirty-six pounds, under a contract calling for about four thousand pounds of bellies at 9f cents per pound for heavy, and Ilf cents for light smoking bellies, and the only question presented by the appeal is one of fact. It is how many of the bellies so delivered were light smoking, and how many were heavy bellies.

Action to recover for plaintiff’s services as architect in altering one house, and in building another, for the defendant.

The defendants Back and Fishel, on October 14, 1884, made a general assignment for the benefit of creditors to the defendant, Moritz Kellner, which assignment preferred, among other, one F. Fishel, a brother of one of the assignors, for the sum of $3,000.

Appeal by plaintiff from order setting aside execution against defendant’s person.

<p> Appeal from interlocutory judgment entered on order sustaining demurrer, said order not being appealed from. </p>

<p>Appeal from an interlocutory judgment overruling demurrers to the supplemental complaint herein, and from the order overruling the de-</p> <p>murrers (see same case, ante, p. 299).</p>