Volume 21 — Jones & Spencer's New York Superior Court Reports

Appeal by defendant from judgment entered upon the decision of a judge at special term. The facts appear in the opinion. on the questions considered in the opinion, argued : —I. While the premises remained vacant and unenclosed, the statute of limitations did not run against Smith and those he represented, or who claimed through or under him. II.

<p>Appeal by defendant from a special term order, denying his motion to vacate and set aside the execution herein, and to stay all proceedings on the part of the plaintiff to enforce the judgment herein, until the hearing and decision of the general term on the case and exceptions on appeal herein.</p> <p>The motion was heard at special term before Judge Ingraham, who delivered the following opinion:</p> <p>“Ingraham, J.—The only question to be determined on this motion is whether or not an appeal has been taken from the judgment below within the time allowed bylaw. By section 1300 of the Code, an appeal must be taken by serving on the attorney for the adverse party and upon the clerk a written notice to the effect that the appellant appeals from the judgment or order, or from a specified part thereof.</p> <p>“No such notice was served within the thirty days from the service of notice of entry of judgment.</p> <p>“The only section of the Code authorizing the courts to supply defects in the proceedings necessary to perfect the appeal, is section 1303, which provides that where the appellant seasonably and in good faith serves a notice of appeal, either upon the clerk or the adverse party, but omits, through mistake or inadvertence, or excusable neglect to serve it upon the other, or to do any other act necessary to perfect the appeal, the court may, in its discretion, permit the omission to be supplied. The power granted by this section, however, is only where the notice of appeal has been served either upon the clerk or upon the adverse party within the time allowed by the Code, and in this case, as no notice of appeal was served within the thirty days after the notice of entry of judgment, no power is given by this section to permit the deponent to serve the notice.</p> <p>“ The only remaining question is, whether the consent of the plaintiff extending the time of the defendant to serve a proposed case and exceptions was a waiver of the notice of the entry of judgment or of the right to insist that no appeal has been taken within the time allowed.</p> <p>“It appears, however, in this case, that at the time the consent was given, the plaintiff’s attorney expressly refused to receive a notice of appeal, on the ground that the time in which to serve the notice had expired ; and having taken that position, it is difficult to see how they could have intended to waive the right which they expressly insisted upon by granting the stipulation.</p> <p>“ The case of Staats v. Garrett (21 Week. Dig. 39), cited by defendant, was very different from the case at bar. There the notice of appeal had been served and accepted by the respondent without objection, and the court held that the consent extending the time to make a case was a confession or admission, that the notice of appeal had been received in time, or at least a confession that the notice of entry of judgment was for some cause ineffectual. In this case, however, the plaintiff’s attorney had refused to receive the notice of appeal, refused to waive the default, and insisted that no appeal had been taken. Under such circumstances it cannot be held that there was any waiver.</p> <p>“ The failure to serve the notice of appeal in this case was evidently a mistake on the part of defendant’s attorneys or some one in their employ, and upon the facts shown, would justify the court in relieving the defendant from the effect of such mistake if it was in the power of the court.</p> <p>“ Section 784 of the Code provides that the court or a judge cannot allow either of those acts, viz.: c The commencement of an action or the taking of an appeal, to he done after the expiration of the time fixed by law for doing it,’ except in a case specified in the next section, which does not apply to the case at bar. The court has no power, therefore, to relieve the defendant from the effects of the failure to serve the notice of appeal within the time allowed.</p> <p>“ I have examined the questions presented on this motion without regard to the claim on the part of the plaintiff that the question has been passed upon by Judge O’Gorman, and having come to the conclusion that no appeal from the judgment has been taken, it is unnecessary to determine whether or not the questions were included within such decision.</p> <p>“ The motion must, therefore, be denied.”</p> <p>on the questions considered in the opinion, argued :—I. The notice of appeal was duly filed with the clerk of this court, because of the extension of the time to make a case given by plaintiff’s attorneys. Granting time to make a case was an extension of the time to serve a notice of appeal. The only object that a party has in making a case is to appeal. A case subserves no other purpose. Then to say you may make a case after your time to appeal has expired, is a mockery, a delusion and a snare. It invites a party to make large expenditures of time, labor and money, which are absolutely useless if this view prevails. This is the meaning of the consent according to that view : “I extend your time to serve the case, but I will refuse to accept it when served.” On the other hand, we contend that the meaning of such a consent is : “ I will accept the case if served within the extended time.” And that implies that the party will argue the appeal upon that case if it is correct, or that he will have it corrected, and then argue the appeal. No other meaning can honestly be given to such a consent, and that being the case, the notice of appeal was filed in time.</p> <p>II. The service of the proposed case on appeal on August 18, was a sufficient notice of appeal, and was duly served (Baker v. Scott, 2 Sup. Ct. [T. & C.] 606). Such a case conforms to the requirements of the Code for an appeal, which simply demands that it shall be in writing (Code Civ. Pros. § 1300).</p> <p>III. The extension of time to serve the case was either a waiver of any default, or an admission that the time to appeal had not expired. 1st. The service of a notice of appeal after the time had expired is a nullity. And when a paper is an absolute nullity, it is not necessary to return it. 2nd. We are in a similar situation, because the last extension was given after the notice of appeal had been filed with the clerk, to the knowledge of plaintiff’s attorneys. This motion was not made to the favor of the court, for we were well aware that the court had no power ex gratia to extend the time to appeal, but the motion was made strictissimi juris, and as such the defendant should have prevailed (See also Staats v. Garrett, 12 Weekly Dig. 39 ; S. C., on appeal, 97 N. Y. 630).</p> <p>cited: Parsons v. Winne, 17 Week. Dig. 237; Whiting v. Townsend, 67 N. Y. 40 ; Cotes v. Smith, 29 How. Pr. 326 ; Humphrey v. Chamberlain, 11 Ib. 274 ; Whitney v. Townsend, 7 Hun, 233 ; Wait v. Allen, 22 N. Y. 321; Salls v. Butler, 27 How. Pr. 133 ; 27 N. Y. 638 ; Morris v. Morange, 26 How. Pr. 247; Waring v. Senior, 48 Ib. 226 ; Kelly v. Sheehan, 76 N. Y. 325.</p>

Exceptions heard at general term. Under the direction of the court, a verdict was' rendered against defendant Laimbeer, who alone… Held: “ It is not incumbent on the mortgagee to supervise the recorder, and see that the mortgage is recorded and indexed.” Some cases arising under the recording act, that visit the consequences of the failure of the clerk to discharge his duty, upon the party whose act was the foundation for the performance of that duty, do not conflict…

<p>Appeal by defendant from order denying his motion to vacate the judgment against him entered on verdict of jury.</p>

Re-argument of appeal from judgment, and from order denying defendant’s motion for a new trial. cited :—Magnin v. Dinsmore, 56 N. Y. 168 ; same case on second appeal, 70 Ib. 410 ; Belger v. Dinsmore, 51 Ib. 166 ; Steers v. Liverpool, N. Y. & P. Steamship Co., 57 Ib. 1; Wetzell v. Dinsmore, 54 Ib. 496 ; Berry v. Dinsmore, U. S. Circ.

Appeal by plaintiff from a judgment entered against him upon a decision made on a trial at special term, of issues of law raised by a demurrer interposed by him to the first defense set up in the separate answer of the defendant Charles H. Town, on the ground that it is insufficient in law, upon the face thereof; and by a demurrer interposed by him to the first defense contained in the separate answer of the defendant Be j amis T. Kissam, on the same ground.

Appeal by defendant from judgment entered upon report of referee in favor of plaintiff. The action was, among other things, for the recovery of damages from the breach of a contract, causing loss of future profits.

The action was brought to recover sixty-six thousand four hundred cigars, and $500 in money. On the trial, the claim for the $500 was abandoned.

Appeal by plaintiff from a judgment entered against her upon a dismissal of her complaint upon the trial of the action before the court and a jury.

<p>Mandamus—proceedings in —pleadings— trial—verdict—judgment.</p> <p>In mandamus proceedings the alternative writ answers to the complaint in an ordinary action, and the facts constituting the grievances are to be stated in the manner in which a cause of action is to be stated in a complaint, and two or more of such grievances may be joined as so many causes of action. The return to the writ fulfills the functions of an answer.</p> <p>All issues of fact are raised by the return, to which the provisions of chapter sixth of the Code as to the form and contents of an answer containing denials and allegations of new matter, except those relating to verification and counter-claims, are made applicable, and which may contain two or more complete statements of facts, assigning cause why the mandate of the writ should not be obeyed ; these complete statements are regarded as separate defenses, and must be separately stated and numbered.</p> <p>No counter-claim can he set up in the return, and there can be no reply.</p> <p>Issues of law are to be raised by demurrer to the writ or to the return—or to any complete statement of facts contained in the writ as constituting a separate grievance, or to any complete statement of facts separately ■ assigned in the return as cause for disobeying the command of the writ.</p> <p>Where the demurrer is to one or more but not all of the complete statements of fact in the writ, a return may be made to those not demurred to ; and where the demurrer is to .one or more, but not all of the compíete statements of fact contained in the return, an issue of fact arises with respect to the remainder of the return.</p> <p>Issues of fact are triable by jury, unless a jury trial is waived, or a reference consented to. They are to be brought on for trial in the same manner in which issues of fact joined in any ordinary jury case are usually brought on. It is not necessary to have issues stated for trial on a special motion.</p> <p>The verdict is to be given as if the action were an action by the relator against the defendant for a false return, and the jury may render a general verdict, or may be directed to find specially upon any or all of the issues.</p> <p>The verdict must be returned to, and the final order (which is to be deemed a final judgment) must be made, by the special term; and the judgment is to be entered, docketed and enforced as prescribed by section 2082. MacKellar v. Rogers, 52 Super. Ot. 468, distinguished.</p>

The facts appear in the opinions. The following opinion was delivered at special term: “Ingraham, J.—From the facts as they appear in this application, it is clear that the defendant… Held: that the fact that a person had a place of business in the city of New York was not sufficient to constitute him a resident, so as to exempt him from attachment. “In Matter of Collins (64 How. 65), it was held that residence means the act or state of being seated or settled in a place.

Exceptions ordered to be heard at general term. Action on promissory note made by defendants’ firm. Laimbeer defended on the ground that he was a special partner. The limited partnership was formed October 1, 1883, apd its certificate was filed and recorded on that day. Laimbeer contributed $20,000 in cash on the same day as special capital.

Action for damages for injuries alleged to have been caused by the negligent acts of defendant’s servants. The facts appear in the opinion.

Appeal on the part of the defendants from an order denying a motion for the cancellation' of a Us pendens filed by plaintiff. —I. This motion was proper if plaintiff could make no further claim for a conveyance of the property in this action. The provision of Code Civ. Pro. § 1614, as to final judgment is new, and has not previously been construed.

The action was brought by a judgment creditor to set -aside certain conveyances made by his debtor.

<p>Appeal from judgment dismissing complaint upon the merits, entered upon direction of the court at trial term before a jury.</p> <p>Action was upon a policy of marine insurance for the loss of a canal-boat.</p> <p>The facts appear in the opinion.'</p>

Appeal by plaintiff from order directing plaintiff to serve a further bill of particulars. The facts appear in the opinion. I. The sole purpose of a bill of particulars in an action for slander is that the defendant may have the time and place at which the words were spoken pointed out so definitely and distinctly that he may know with certainty the occasion to which the complaint refers (Jones v. Platt, 60 How. Pr. 278; Solomon v. Stock Ech’ge, 49 Super.

<p> Trial—exceptions to charge and refusals—False imprisonment—Excessive damages—Evidence—admission in pleading. </p> <p>Where several requests to charge were submitted to the court, some of which were charged as requested, some in a modified form, and others were not charged, and the court declined to charge the requests otherwise than as charged, and a single general exception was taken as follows: “to the refusal to charge as requested, and severally to each refusal to charge, and to the charge.” Held, that such exception presented no question for review.</p> <p>An admission of a material fact in the answer is evidence against defendant on said point.</p> <p>A party who directs a police officer to arrest another under circumstances not justifying an arrest, is responsible for such wrongful arrest.</p> <p>In an action for false imprisonment the fact that plaintiff has a family is material, as affecting the kind and degree of mortification and inconvenience caused by the arrest.</p> <p>In such an action, a witness for plaintiff was asked when and how he learned of the arrest, which was objected to as immaterial and irrelevant. The answer was, “through the New York papers of July 20 or 21.” Nothing further was said as to the contents of the publication, nor was any claim for damages made on account of such publication by plaintiff or alluded to in the charge. Held, that defendant could not have been injured by such evidence, and that its admission was not ground for a new trial.</p> <p>In an action for false imprisonment, a verdict for $3,000 was set aside by the court as excessive, and on a second trial a verdict of $2,750 was rendered. Held, that as a second jury had deliberated upon the damages, compensatory and exemplary, it would not be proper to set the verdict aside as excessive, in a case concerning the protection of the law to the personal rights of citizens.</p>

Appeal by plaintiff from judgment dismissing complaint entered upon order sustaining demurrer to complaint. The ground of demurrer was that the complaint did not state facts sufficient to make a cause of action. I. The trust and confidence induced by undertaking any service for another, is a sufficient consideration to create a- duty in the performance of it.

<p>Plaintiffs’ exceptions ordered to be heard in first instance at general term, after dismissal of complaint.</p>

Appeal by defendant from order that within twenty days the defendant’s attorney serve upon the plaintiff’s attorneys a bill of particulars, as directed by a former order, and that in case of default a defense of payment be stricken from the answer.

<p> Motion to dismiss—when exact ground to be stated—misapprehension of evidence by trial judge. </p> <p>Where, upon a motion to dismiss the complaint for insufficiency of evidence, defendant’s counsel must from the circumstances have perceived that the trial judge was under a misapprehension as to the exact words of the evidence, and that the evidence as apprehended by the judge would justify the denial of the motion, he should by stating the exact ground of the motion call the judge’s attention to such misapprehension, and if he fails to do so an exception to the denial of his motion will not be sustained.</p>

Appeal by Willis M. Ranney from an order denying his motion to vacate an order directing him to pay the costs of the action. The facts appear in the opinion. argued :—I. The order was void for want of jurisdiction .in the court to make it. The service of notice of the application upon the attorney of the nominal plaintiff did not confer jurisdiction to grant it (Carnahan v. Pond, 15 Abb. Pr. 194; Ward v. Roy, 69 N. Y. 96). II.

Appeal by plaintiff from an order denying his motion to vacate and set aside an order for his examination.

<p>Appeal by defendant from judgment and order denying motion for a new trial.</p> <p>The facts appear in the opinion.</p>

The action was brought by the plaintiff, as mortgagee, to foreclose a builder’s loan mortgage on certain lots of land in New York city, made by defendant Kelly, as owner in fee, and for money advanced from time to time by plaintiff on account of the mortgage in the progress of the building of houses on the lots. The bond and mortgage were executed in August, 1883.

Appeal by plaintiffs from, judgment dismissing complaint, entered on direction of court at the trial term. The facts appear in the opinion.

Submission of a controversy upon facts admitted, under sections 1279 and 1285 Code of Oivil Procedure. The relator and the defendant each claimed to be entitled to the office of clerk of the district court in the city of New York for the tenth judicial district. On November 28, 1885, the incumbent of the office in question resigned that office, and thereupon, the justice of the court appointed the defendant as clerk.

Appeals by defendant from two orders denying motions made to compel the attorneys for.the plaintiff, as persons beneficially interested in the action, to pay a judgment for costs. The facts appear in the opinion.

<p> Benevolent associations—contracts with. </p> <p>The by-law of defendant, a benevolent association, upon which action was brought, was as follows: “In case of the deatn of a brother of this order, his widow or heirs shall receive the amount agreed upon by the constitution, which shall, however, not exceed $1,000.” Held, that in the absence of qualifying circumstances, the beneficiary intended in the contract shown by such by-law, &c., is the lawful wife of the member in question ; that it is. legally possible for such member to designate as the beneficiary a person living with him as his wife, though not legally married to him, and if such designation is assented to, and becomes part of the contract, the person so designated may, on the member’s death, recover on the contract, though the burden of proof is on her to clearly establish said designation, and that it became part of the contract.</p> <p>Courts will not assist in encouraging concubinage, and no right of a lawful wife or child will be permitted to be taken away except upon clear proof.</p> <p>Story v. Williamsburgh M. M. B. Assoc. (95 HI T. 476), distinguished and limited.</p> <p>In this case upon a review of the evidence,—held, that plaintiff who, though not legally married to the deceased, had lived with him as his wife, did not sufficiently establish that she had been accepted by defendant as the beneficiary of the contract made with the deceased member, and that such acceptance had become part of the contract to the exclusion of the lawful wife who was living at the time of the member’s decease ; and therefore, that a direction of a verdict in favor of plaintiff was erroneous.</p>

<p>Appeal from judgment dismissing complaint.</p> <p>The facts appear in the opinion.</p>

Exceptions ordered to be heard at general term in the first instance. The facts and exceptions appear in the opinion. on the question considered in the opinion, urged: I. The goods shipped by plaintiffs were in accordance with the requirements of' the contract. 1st. The goods were ordered to be sent “ as samples.” 2d. The only direction as to length was the expression, “ Say, thirty to forty yards to a piece,” and these words were words of expectation and estimate only; II.

Appeal by defendant from judgment entered in favor of the plaintiff upon the decision and findings of a judge at special term. The action was brought to recover for a non-delivery of sixty-three pigs or slabs of tin, part of a consignment of one thousand seven hundred and three slabs shipped by Katz Bros., to whom defendant issued its bill of lading.

■ This action was brought to reform a. contract under seal, for the sale and purchase of certain real estate, and to recover damages for its breach. The contract was entered into between defendant Weinberg, party of the first part, and the plaintiff, party of the second part, and was for the sale by Weinberg to the plaintiff, and the purchase by plaintiff from Weinberg of said real estate.

Appeal by defendant from a judgment entered after a trial at special term. The facts appear in the opinion. on the questions considered in the opinion, argued :—I. The trial of this action should have been postponed until the interpleader suit had been determined. 1. Some of the transferees claim title by legitimate transfers, and threaten suits as against the defendant to enforce their alleged rights to dividends on the shares, which dividends Day also claims.

This action is brought to recover the sum of $3,000, paid on the execution of a contract whereby the defendant agreed to sell to the plaintiff the unexpired term of a certain lease of premises known as No. 7 West Forty-seventh street in the city of New York.

<p>Order on demurrer not appealable.—Bond, general rule that persons not parties to a sealed instrument are not liable thereon, applicable thereto.</p> <p>An order sustaining or overruling a demurrer is not appealable. An interlocutory judgment must be entered.</p> <p>Semble, a bond is one of those instruments to which the general rule that only the party named in and who executes a sealed instrument can be held liable thereon, applies.</p> <p>As a bond is required to be under seal, which is an essential characteristic, the fact that the obligor might have, by an instrument not under seal, made a valid contract to pay the sum mentioned in its condition, does not bring it within the exception to the general rule, which exception covers only those sealed instruments which are not required to be under seal to give them the force and operation which their motive and character call for. Per Ingraham, J.</p>

mortgage on certain real estate), to pay the claim of the petitioner for the amount expended by him in shoring up a wall of the house on the mortgaged premises.

Appeal by defendants from judgment entered on verdict in favor of plaintiffs. The facts appear in the opinion. on the questions considered in the opinion, argued :— I. This charter party, upon which the respondents base their cause of action, was canceled by mutual consent. This appears from the correspondence between Seager Brothers and Mr. Card.

Appeal by plaintiff from judgment, entered upon verdict for defendant, directed by the court.

<p>Undertaking on arrest, invalid as a statutory undertaking.—“Final judgment”—meaning of the phrase as used in such undertaking—Rights and liabilities of the undertaker.</p> <p>The final judgment, to the mandate issued on which the party executing the undertaking undertakes that the arrested party shall render himself amenable, is a judgment upon the very claim on which the order of arrest was made, as it was presented by that order. Consequently, no liability arises on such an undertaking, out of the failure of the defendant to render himself amenable to a mandate issued on a judgment rend ered not only for that claim, but also for a claim not then made.</p> <p>A fortiori, no liability arises when the additional claim, for which judgment was rendered, is founded on a cause of action not originally contained in the complaint, but inserted therein by amendment made under the order of the court, after defendant’s defense in answering, and after the time to amend as of course had expired.</p>

Appeal by defendant from judgment entered on verdict for plaintiff and from order denying defendant’s motion for a new trial made upon the minutes. The facts appear in the opinion.

Appeal by plaintiff from an order vacating order obtained by plaintiff, in examination of officer of defendant, as claimed by plaintiff, and for production and inspection of certain papers.

Exceptions of plaintiff ordered to be heard in the first instance at general term, the verdict having been directed for defendant.

This is an action for a partnership accounting. The complaint alleged that plaintiff and defendants, Elliott Smith and S. Sidney Smith, together with Augustus F. Smith, for several years prior to January 1, 1876, had been, and were up to that date copartners, under the firm name of Martin & Smith, in the business of attorneys and counsellors at law; that the firm was on that day dissolved by the retirement of Augustus F. Smith ; that Augustus F. Smith died in August, 1876,…

Appeal by defendant from judgment entered against him upon the decision of a judge at special term.

Appeal by plaintiff from a judgment dismissing the complaint entered on the report of a referee.

<p> Value, when testimony as to incompetent—Memoranda inadmissible. </p> <p>Testimony as to value of articles given by a witness whose knowledge is derived solely from the bills therefor, made out by the vendors of the articles receipted, is incompetent. A fortiori, a list of such articles, with values attached, made out by such witness from recollection of the contents of such receipted bills (the articles having been purchased about eleven years before), the bills having been destroyed and two years having elapsed since the witness saw them, is inadmissible either as an extension of the oral testimony of the witness or otherwise.</p>

The referee found as facts I. In or about the month of June, 1873, one Augustine B. McDonald had a claim pending before the mixed commission on British and American claims, under the treaty of May 8,… Held: and in whatever securities it might have been invested, it and the securities were to be charged with the amount of the plaintiffs’ interest therein.

Appeal by defendant from judgment entered on decision of the court at special term. Held: that no place of payment being mentioned, the mortgagor may give notice to the mortgagee that he will make payment at a particular place, and, unless objected to at the time, tender there -would be good (3 P. Wms. 378; Smith v. Smith, 25 Wend. 405).

Exceptions ordered to be heard at general term. The action was brought to recover damages sustained by reason of the collection by a marshal, under a warrant issued to him for the collection of the taxes of 1881, of certain taxes assessed against certain persons. The claims of the various parties were all assigned to the plaintiff. The total sum collected amounted to $2,365.93, and was collected on or prior to March 2, 1882.

<p>Appeal by defendant from judgment entered on report of referee.</p> <p>The facts sufficiently appear in the opinion.</p>

18. The action was tried by a single judge without a jury, and was brought to compel Hezekiah Watkins to make good a deficiency of $3,514.54, arising on a sale of real estate under foreclosure of a mortgage, on the ground that Watkins had, by his written agreement, assumed payment of the mortgage.

Appeal by plaintiff from order made at special term, that he restore to defendant, Mary A. Nostrand, $471.27, being amount of costs collected by his attorney under a judgment obtained against her in this court at special term (See 47 Super. Ct. 441). That judgment was first affirmed by the court of appeals.

Appeal by defendants from order amending complaint. The defendants had demurred to the complaint. The demurrers were overruled and leave was given to plaintiff to enter judgment, as demanded by the complaint. The complaint did not ask for any money judgment by way of damages. Before judgment was entered, the plaintiff made a motion upon which the order appealed from was made.

Appeal by defendants from judgment entered on verdict for plaintiff as directed by the court; and from order denying motion for new trial made upon the judge’s minutes. The facts sufficiently appear in the opinion. argued :—I. The question as to the liability of these defendants for a deficiency on a sale of the mortgaged premises was in issue in the suit brought by Wiener in the supreme court, was tried by that court and decided in favor of the defendants.

Appeal by plaintiff from judgment entered on findings by a judge in an action of ejection tried without a jury by consent. The action was in ejectment. The defendant was in possession of the western part of the land indicated on above diagram, up to the center of party-wall “A.” The plaintiff claimed that he was entitled to the land on the east, from a line about five feet west of the center of party-wall “A.” The complaint was dismissed upon the merits.

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

Plaintiff’s exception to a direction of verdict in.favor of defendant, ordered to be heard in first instance at general term. argued I. If the question raised in this case as to the construction of the contracts upon the evidence produced, is to be determined by the court, the court has erred in directing a verdict for the defendant. It should have directed a verdict for the plaintiff.

Appeal by defendants from judgment entered on verdict for plaintiffs as directed by the court, and from order denying defendant’s motion for a new trial made upon the minutes. The facts appear in the opinion. :—I. The motion to dismiss after the close of plaintiffs’ case should have been granted and the denial of the motion was error. The charter party was not proved nor was it even offered in evidence.

Appeal by plaintiff from judgment dismissing complaint, as directed by the judge at trial term. The facts appear in the opinions.

Appeal by plaintiff from judgment dismissing complaint entered on findings by judge at special term. The facts appear in the opinion. I. The assessment is void on the ground that there was no jurisdiction in the assessors to impose the assessment, or in the department of parks to do the work.

This case comes before the court pursuant to an order made by the judge at trial term, directing a verdict of $24,382.91, in,favor of the plaintiff, subject to the opinion of the court at general term, both parties waiving all exceptions.

<p>Appeal by defendant from judgment for plaintiff entered upon verdict of jury.</p> <p>The facts appear in the opinion.</p>

Appeal by defendant from judgment entered upon verdict for plaintiff, as directed by the court, and from order denying motion for new trial made upon the minutes. argued :—I. There is no allegation in the plaintiffs’ complaint that they delivered the full bill of goods, and it is submitted that in this particular the complaint is fatally defective and defendant’s motion to dismiss was proper and should have been granted (Nelson v. Bostwick, 5 Hill, 37 ; Douglass v. Rathbone,…

Exceptions of defendant directed by the court to be heard in the first instance at general term. The facts appear in the opinion.

, for the amount admitted to be due under a contract entered into by one French and the city. The action was commenced by the plaintiff to foreclose a hen filed under the municipal hen act, against the moneys due under said contract. On May 16, 1884, one Samuel G. French entered into a contract with the board of education in this city to furnish a quantity of coal.

Appeal by defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying defeiidant’s motion for a new trial. The action was brought to recover for damages alleged to have been sustained by the plaintiff through the negligence of the defendant.

The facts appear in the opinion. on the questions considered in the opinion, argued: argued: I. The motion “to dismiss the complaint on the ground that the proof established, not an agency on the part of Hermanee, but an absolute sale to him, and that consequently the goods were liable to be seized by the sheriff under the warrant of attachment,” should have been granted and it was error to deny the motion (Luden v. Hazen, 31 Barb. 652; Bonesteel v. Flack, 41 Ib. 435 ;…

Appeal by defendant from judgment entered upon the report of a referee. Held: that there is an implied condition in letting a furnished house that it shall be reasonably fit for habitation. If not, tenant may quit. See also to same effect Sutton v. Temple (12 Mees. & W. 60); Campbell v. Lord Wenlock (4 Foster & Finlanson, 716); Wilson v. Hatton (E. L. R. Exch. Div, 336).

Exceptions taken by plaintiff ordered to be heard in the first instance at general term, and verdict directed for defendant. The facts appear in the opinion.

Appeal by defendant from judgment entered on a verdict for the plaintiff found on the direction of the trial judge, and from an order denying a motion for a new trial. Action against David J. Hutchinson, Alexander Hogg, and Alexander Patterson, as copartners, to recover $4,207.83, being the aggregate amount remaining due on account of certain promissory notes made by the firm of Hogg & Patterson, and payable to the plaintiff.

The defendants in this action are sued as “a body duly created by law specially charged with enforcing the laws of this state and preserving the peace of the city,” and the complaint alleged that the defendants by their servants and policemen have threatened to arrest the plaintiff and all his employees, and to interfere with plaintiff’s business and prevent him from carrying on the same at his place of business in the city of New York, claiming that the plaintiff violates…

Defendants’ exceptions ordered to be heard in the first instance at general term. Action in replevin to recover certain wines which plaintiff claimed to have consigned to defendant Schanzlin for sale, and which defendant claimed to have bought.

In March, 1883, the plaintiff' entered into a written agreement with Albert M. Palmer, for the lease by him to the plaintiff of the “Union Square Theatre,” of which agreement the following is a copy : “First.—That the party of the first part (Palmer) hereby agrees and covenants to furnish for the term of three weeks, commencing August 20, 1883, to the party of the second part (the plaintiff), the Union Square Theater in the City of New York, cleaned and lighted for the…

<p> Insurance policy—printed and written portion—construction of same, when difference exists. </p> <p>Where a printed form of policy is used, providing that its general language should be controlled by indorsements of special risks, the printed portion of the policy is incomplete and ineffective as a contract, until made definite and certain by the indorsement which in each case fixes the amount and nature of the risk.</p> <p>Accordingly, where the printed policy insured against loss of goods “ laden on board vessels, railroad or carriage,” while the written indorsement insured the goods against “ risks of fire, and navigation, and transportation, while on vessels, steamboats, or railroads, or in hotels, and while in custody of the assured or his traveling salesman.”</p> <p>Held, that the word “carriage” not being found in the indorsement, the loss of goods while laden in a carriage is not one of the risks insured against.</p> <p>Further held, that the phrase “and while in custody of the assured or his traveling salesman,” cannot be taken as constituting a separate risk.</p>

<p>Appeal from a judgment entered in favor of the defendants at special term.</p> <p>The facts appear in the opinion.</p>