Volume 22 — Jones & Spencer's New York Superior Court Reports

<p>Motion to set aside executions against the person.</p>

<p> Notice of motion, when must he given.—Motion to sever action. </p> <p>Where defendants’ answer admits part of plaintiffs’ claim, an order, under section 511 of the Code of Civil Procedure, that the action be severed and that plaintiffs have judgment for the part admitted, may be made' ex parte, although in general it may be better practice to require notice to be given; and where defendants are not prejudiced the order should not be disturbed.</p> <p>General rules as to notice of motion stated by the court.</p>

Exceptions ordered to be heard at general term. Action of ejectment to recover possession of four lots ■of land on the north side of Eighty-Third Street, between First and Second avenues in this city.

Appeal by defendants from a judgment entered on a verdict in favor of plaintiff against defendants, and from an order denying a motion on the judge s minutes for a new trial. The action was brought to recover damages for an assault and battery and false imprisonment.

<p>Appeal from an order made at special term granting plaintiff’s motion for judgment on the answer as frivolous.</p> <p>The facts appear in the opinion.</p>

Appeal by both plaintiffs and defendants from the judgment entered on the trial at special term. The facts appear in the opinion.

Appeal by the defendants from a judgment entered on report of a referee, directing the foreclosure of a mechanic’s lien. The facts appear in the opinion.

On June 29, 1883, judgment was entered against defendant by default for $3,412.78, which was docketed July 3, 1883. On defendant’s motion the default was opened and he was allowed to come in and serve his answer and defend, on the condition among others, that the judgment stand as security, but no execution to issue thereon until after the determination of this action. Defendant came in and served an answer.

Motion on the part of the defendants for judgment on a verdict. The court below ordered the plaintiff’s exceptions to be heard in the first instance- at general term. The action was brought for money alleged to have been wrongfully obtained from the plaintiff by the defendants by means of a fraudulent trick or device, and under an alleged agreement which amounted to a conspiracy to defraud the plaintiff of his money by means of an exchange of' checks.

Appeal by plaintiff from judgment dismissing complaint entered upon direction of the judge at trial term. A statement of the case is contained in the opinion.

Exceptions ordered to be heard at general term. Action in ejectment to get possession of three lots of land situated on the Southeast corner of Madison Avenue and Fifty-seventh street in the city of New York. On June 30, 1871, an assessment on the said lots for paving Fifty-seventh street was confirmed. That assessment was not paid.

The action was brought by the plaintiff to recover damages claimed to have been sustained by her by reason of an alleged breach by the defendants of a contract, by the terms of which they agreed to employ the plaintiff as an actress for the period of three years from September, 1883.

Exceptions ordered to be heard at general term in the first instance. The judge who presided at the trial term dismissed the complaint upon the evidence presented by the plaintiffs, and directed that the exceptions be heard at the general term in the first instance, judgment in the meanwhile being suspended. Action to recover for goods sold and delivered to the defendants.

Exceptions taken by the plaintiff and ordered to be heard in the first instance at general term. Action to recover from the defendant the amount of two drafts drawn on it by the firm of Wills & Wildberger, of Memphis, the drafts being discounted by the plaintiff.

Action to restrain a breach of a covenant, contained in a lease made by George Sloan, of whose will the plaintiff was sole executrix, to William R. H. Martin and Frank R. Chambers, not to assign the lease or un derlet the premises, or any part thereof, without the landlord’s consent. The defendants, Martin and Chambers, threatened to underlet a portion of the demised premises to defendant, The American News Company, for a term of sixty days.

Action to abate a nuisance, to recover damages sustained by reason thereof, and seeking a perpetual injunction, by decree, from the parrying on of any trade or occupation offensive to the senses or injurious to the plaintiff’s property. The action has been before tried at special term and thence appealed (See 48 Super. Gt. 31).

<p> False imprisonment—what does not constitute. </p> <p>Plaintiff was arrested by a police officer on a charge of assault, and taken to a police court, where his conduct was such as to disturb the proceedings of the court, and upon the direction of one of the officers thereof he was removed by the policeman to the prisoners’ room adjoining, until his case was brought up. There was no evidence that his case would have been sooner disposed of had he not been so removed.</p> <p>Held, not sufficient to sustain an action of false imprisonment against such court officer.</p>

50 damages for breach of contract. The complaint alleged that the plaintiff was engaged by the defendant as a singer in the defendant’s theatrical company for a term of two seasons, to commence on the 12th day of May, 1884, at a salary of one hundred and twenty-five dollars per week; that she performed for the defendant until June 3, 1884, when she alleges she was denied the privilege of further performing for the defendant.

Plaintiff and defendant entered into a contract whereby defendant agreed to convey to plaintiff certain premises, and plaintiff “ in consideration and payment thereof ” was to convey certain other premises to defendant, pay $1,900 in cash, and assume a mortgage existing on defendant’s said property. At the time of execution of this agreement plaintiff paid to defendant $500 of said $1,900. On the day fixed for the consummation of the contract defendant refused to complete.

The plaintiff sued upon a bond given to secure part of the purchase money of land in Virginia. The defendants set up a counter-claim of $20,000 damages for fraud.

Appeal by defendants from judgment entered upon verdict for plaintiff, and upon order denying motion for new trial made upon the minutes. The' action was for damages from the alleged responsibility of the defendants, who were the physicians of plaintiff, to plaintiff as their patient, for her removal by the public authorities to the smaE pox hospital. The jury found for plaintiff.

Appeal by defendant from judgment entered on verdict of jury and from order denying motion for new trial. Action for damages for malicious prosecution and false imprisonment. The facts appear in the opinion.

Appeal by plaintiff from a judgment in favor of defendants entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

Appeal by defendants from judgment entered on verdict of jury, and from order denying motion for new trial. The action was against the defendants as trustees of a manufacturing company, for failing to file an annual report, at a time when the plaintiff was, as he claimed, a creditor of the company on account of services rendered.

Appeals from orders denying defendant’s motions to vacate orders appointing a receiver in proceedings supplementary to execution.

Appeal by plaintiff from an order made at special term discharging the defendant from imprisonment under an execution against his person.

<p> Eusband and wife—Necessaries furnished wife, action against husband for, not barred by mere pendency of action for divorce, nor by that and the mere granting or refusing alimony. </p> <p>In the case at bar the action was for necessaries furnished the wife between July 15 and August 15, 1885, on the application of the wife but on the husband’s credit, the husband and wife during that period living separate and apart. It appeared on the trial of the action that on May 21, 1885, the wife commenced an action against her husband for separation and support, that a motion was made by the wife for alimony which was denied on July 24, 1885, and that the action was discontinued in January, 1886. There was also evidence given upon which the jury might have found that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do, and that plaintiff had supplied her with the necessaries in question in good faith and in ignorance of the pendency of the action for a separation. The complaint was dismissed.</p> <p>Held, (1) that the dismissal of the complaint was error; (2) that the case of Gatlin v. Martin, 69 N. T. 393, was an exceptional case; and under the facts in the case at bar was not an authority in support of the dismissal of the complaint.</p>

<p>Appeal from judgment entered upon a verdict directed in favor of the plaintiff.</p> <p>The facts appear in the opinion.</p>

<p>Appeal by Ann E. Wilkins, as executrix, &c., of William H. Wilkins, deceased, from an order made at special term continuing this action against her as executrix.</p> <p>The facts appear in the opinion.</p>

The action was brought to compel the specific performance by the defendant (the vendee) of a contract for the sale of certain real estate in New York city, to wit, number 19 Washington Square (North). The sale was made at auction.

The defendant was sued for negligence committed in its capacity of a common carrier, the complaint alleging in substance that the plaintiffs shipped a horse over defendant’s road at Reading, Pennsylvania, which defendant agreed to carry and deliver safely to plaintiffs at Jersey City, New Jersey, and that by reason of the defendant’s negligence one of said horse’s fore legs became broken, for which plaintiffs claimed damages in the sum of $350.

This action was brought to recover damages caused by plaintiff falling from one of defendant’s cars.

<p>At Special Term, before Ingraham, J.</p>

<p>Board of Excise—Review by mandamus of refusal to grant license—Practice upon—Rule applicable—Consolidation Act, §§ 1998, 2010.—Laws 1886, Chap. 496.</p> <p>It was the intention of the legislature in Laws 1886, Chap. 496, to allow a person whose application for a license has been refused, to review the action of the commissioners composing the Board of Excise by the writ of mandamus therein provided.</p> <p>The practice prescribed by article 4, title 2, chapter 16 of the Code of Civil Procedure, applies to proceedings on such writ, and the relator in such case should proceed in the first instance by alternative writ of mandamus.</p> <p>Where the relator does not deny the facts set up in the affidavit on the return, but proceeds to argue the application thereon, it is equivalent in effect to a demurrer.</p> <p>Where it appears that the applicant maintains at the place proposed for sale of liquors under the license applied for, a place of exhibition or</p> <p>• performance mentioned in § 1998, Consolidation Act, the license should not, under the provisions of § 2010, Consolidation Act, and Chapter 496, Laws 1886, be granted.</p> <p>Upon a review of the proceedings of the Board of Excise by mandamus as above, such board being a subordinate tribunal, if it appears that it had jurisdiction, that there was evidence legitimately tending to support its decision, and that no rule of law affecting the rights of the relator has been violated, the adjudication will be held final.</p> <p>Upon a review of the facts in this case, and the authorities, held, that there was evidence tending to show that the relator maintained at the place referred to, a place of performance included in § 1998 Consolidation Act.</p>

Exceptions by plaintiff ordered to be heard in the first instance at General Term, the court having directed the complaint to be dismissed. The action was upon promissory notes, made by a firm, in which it was claimed that defendant was a general partner. Papers had been filed to make a limited partnership, and to renew it. There were two renewals.

<p> Complaint, insufficiency of when question as to cannot be raised at trial. Averments as to conditions precedent, sufficiency of. Things not in existence, no legal title can pass to by assignment or grant before they come into existence, but an equitable title to them when completed will pass, which may be relinquished or waived. Acts constituting a relinquishment or waiver. Agreements not inconsistent. Construction of agreements as constituting agency only. Power to collect not assignable. </p> <p>Where the answer makes no issue of fact with the complaint, but merely sets up counterclaims, the defendant is not entitled to object to the sufficiency of the complaint.</p> <p>Plaintiff sold to defendant the exclusive right to give performances of certain plays for thirty consecutive weeks, commencing about Monday, October 22d, 1883, one performance each night to be given during said period; the defendant agreed to pay plaintiff two hundred dollars each week for thirty consecutive weeks, commencing the first Saturday after the performances began.</p> <p>■Held, that the only condition precedent to the weekly payments becoming • due was the giving of one performance; and that it was sufficient for the complaint to state that payments had been begun.</p> <p>One L’Arrange and one Neuendorff entered into a contract whereby L’Arrange assigned to Neuendorff the exclusive right of performance at the Germania Theatre of “all plays, dramas and comedies composed or arranged by him, and which from to-day forth will be written by Mr. L’Arrange, and furthermore exclusively all property rights on all these plays for the United States with the exclusive right to give to other stages permission to perform such plays, fix the royalties and collect the same, and authorized Mr. Neuendorff to act as the sole proprietor of the same ”; and whereby it was agreed that Mr. Neuendorff should pay to L’Arrange for every performance of said plays at the Germania Theatre a royalty of five per cent, of the gross receipts, and that all other moneys which Neuendorff should receive by disposing of his property rights to said plays to other theatres of the United States, should be divided equally between Mr. Neuendorff and Mr. L’Arrange after mak- . ing certain deductions; the account and payment of all moneys due to Mr. L’Arrange to be made every year after the close of the season. After making this contract Neuendorf? entered into a contract with Daly, the defendant, whereby after reciting therein that he was the agent of L’Arrange, and other dramatic authors residing on the continent, he in consideration of one dollar paid to him individually and of one dollar paid to him as such agent agreed for himself, and as such agent, to deliver to said Daly a copy of every unpublished or unwritten play by said persons, and to give to him the exclusive right of performance or permitting or causing, to be performed on the stage the English version thereof throughout the United States, and Daly agreed to make to Neuendorf? as such agent as aforesaid certain payments for such delivery, and exclusive right in a certain specified manner. Thereafter said L’Arrange composed and wrote a play named in English “ Dollars and Sense.” He instructed Neuendorf? not to deliver this play to Daly, but to give it to Wallack, a manager of a theatre, for examination and approval or rejection. Neuendorf? so informed Daly. Daly then began negotiations with an agent of L’Arrange for a right in the play. Pending the negotiations between Daly and the agent of L’Arrange, Wallack rejected the play, and returned his copy to Neuendorf? who handed it to Daly. Thereafter the negotiations between Daly and the agent of L’Arrange ripened into an agreement by which L’Arrange gave Daly the right to perform the play, he making to L’Arrange certain payments of royalties therefor. Daly produced thp play with large gross receipts, and jjaid to L’Arrange the royalties thereon agreed on between them. Before the representations of the play had ended, and before Daly had paid the royalties on receipts from later performances, Daly had information of the agreement between Neuendorf? and L’Arrange. Neuendorf? claiming to have a demand against Daly for royalties on said play under the agreement between them, assigned such claim and by various mesne assignments it was assigned to defendant, who sought to counterclaim'it in this action.</p> <p>Held, First, that the play not being then in existence the execution of the agreement between Neuendorf? and L Arrange could not pass any title to or interest in it before it came into existence; that that agreement was as to plays not then in existence executory, and gave only an equitable title to them when completed; that the equitable vendee might refuse to take title, and if he did so he could not afterwards set up a title; that the acts of Neuendorf? negatived the idea that he claimed or took title under the executory agreement; that he never became the owner, and that Daly was not bound to look upon him as the owner. Second, that the amount to be divided between Neuendorf? and L’Arrange under the agreement between them was not represented by the amount to be paid by Daly to L’Arrange under the agreement between them. Third, that tha agreement between Daly and L’Arrange was not inconsistent with any obligation imposed on Daly by the agreement between him and Neuendorff. Fourth, that there was no cause of action against Daly for royalties on said play; and that the counterclaim for such royalties was properly disallowed.</p> <p>Neuendorff also had a contract with Mr. Von Schoenthan, whereby Von Schoenthan transferred to Neuendorff the right and power to grant to all other stages (that is other than the Germania Theatre, as to which other provisions were made) in the United States the right of production of all stage plays composed for the Germania Theatre, to affix and determine the compensation and royalties and to collect them for him, Von Schoenthan, Neuendorff to pay to Von Schoenthan fifty per cent, of the income received by him from such production on such other stages, after making certain specified deductions. Von Schoenthan composed certain plays, which it is assumed were embraced in the above agreement between Daly and Neuendorff. After the making of that agreement Daly made an arrangement with Von Schoenthan directly for their production. Daly did produce them with the result of large gross receipts. Defendant claiming by mesne assignments a demand asserted by Neuendorff for royalties on these plays under his agreement with Daly, sought to counterclaim that demand.</p> <p>Held, 1. That under the terms of the agreement between Neuendorff and Von Schoenthan, Neuendorff was merely an agent of Von Schoenthan for the production of his plays on stages other than that of the Germania Theatre. 2. That the power to collect given to Neuendorff was a personal confidence reposed in him, and a trust, and was not assignable. 3. That there was no cause of action against Daly for royalties on such plays; and that the counterclaim for such royalties was properly disallowed.</p>

<p>Plaintiff’s exception, ordered to be heard in first instance at General Term.</p> <p>The facts sufficiently appear in the opinion.</p>

Cross appeals from judgment entered in favor of plaintiff, upon a verdict of jury for plaintiff. The facts sufficiently appear in the opinion and the head note.

<p>Appeal from judgment dismissing complaint, entered upon direction of the judge.</p> <p>The facts appear in the opinion.</p>

Plaintiff’s exceptions ordered to be heard in first instance at General Term after a dismissal of complaint before a jury. The facts sufficiently appear in the opinion.

<p> Goupon-Bonds—Interest coupon, when independent obligation, negotiability of—Tender accompanied by conditions, when it does not stop interest—Deposit, when equivalent to tender. </p> <p>Interest coupons attached to a bond as they mature, and are not paid on demand, ripen into new and independent obligations of the obligor in the hands of the holder of the bond. This independence does not rest on their negotiable character.</p> <p>When negotiated, such coupons may, in the hands of third parties, become to some extent independent obligations by virtue of their negotiable quality.</p> <p>A tender to stop the running of interest on an instrument for the payment of money, must not be accompanied by a condition not authorized by it.</p> <p>A tender of the principal sum due on a coupon-bond and of the interest due thereon, accompanied by the condition that all the interests coupon then due be presented with the bond for payment, imposes a condition not authorized by the bond.</p> <p>Where a negotiable instrument (a coupon-bond in this case) is payable at</p> <p>■ a particular time and place, the timely deposit by the party liable thereon of funds for making the payment at the time and place named, is equivalent to a tender of the sum payable, and is a bar to the recovery of interest subsequent thereto, provided such deposit is not accompanied by a condition not authorized by the instrument.</p> <p>A deposit for the payment of coupon-bonds accompanied by the condition that all coupons for accrued interest must accompany the bonds and be presented with them for payment, imposes a condition not authorized by the bonds, and will not stop the running of interest.</p>

<p> Partition judgment, who not affected by—Ejectment, possession under an assessment sale, when a defence. </p> <p>One in possession of premises claiming a right for a term of years is not affected by the judgment in an action brought after the commencement of such possession for a partition of such premises, to which he is not a party.</p> <p>Possession of premises founded on a sale by the corporation of the City of New York for an unpaid assessment, which possession under some authority derived from that corporation commenced before the plaintiff in ejectment acquired title, constitutes a good defence to.the ejectment action, where there is no proof showing the invalidity of the proceedings under which such possessor claims the right of possession, or otherwise showing that he took possession unlawfully, and no proof that the plaintiff in ejectment or anyone of his predecessors in title ever was in possession.</p>

<p>Appeal from judgment entered upon a verdict.</p> <p>The facts sufficiently appear in the opinion.</p>

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

<p> Negligence case—Crossings—Warning, obligation of not necessarily satisfied by ringing bell—Siifficiency of—in general a question for the jury under the circumstances of each case—Effect of obstructions—Contributory negligence, facts raising a question for the jury. </p> <p>The accident occurred at a point where the railroad of the defendant crossed a highway. There were three tracks, two used for the passage of trains, and the third being the most easterly one, a side track on which there, were twenty empty cars. The highway had a rise of eight feet in the one hundred feet next easterly of the track. The vehicle in which plaintiff was seated was coming from the east and proceeding westerly along the highway. The driver listened and looked but neither saw nor heard anything indicating the approach of a train. The engineer of the train testified that the bell was rung for some time before they reached the crossing, but that he could not see the carriage until it appeared on the track, and he was beyond the empty cars. Other persons in other positions saw and heard the train. .</p> <p>Held, 1st, That the mere ringing of the bell was not of itself under the circumstances such a sufficient warning to travelers on the highway, although it could be heard and the train seen by persons in a different position, as that a finding by the jury that the defendant was negligentin the performance of its duty to give warning, would not be sustained.</p> <p>2. That under the circumstances of this case it could not be said that as a question of law the defendant was not guilty of negligence, but it was for the jury to say whether as matter of fact it was negligent in the use and management of its railway'.</p> <p>3. That tiio question of negligence on the part of defendant should have been left to the jury.</p> <p>The plaintiff was not the driver of the vehicle. She was the servant of the driver and was on_ the back seat of the carriage taking care of a child. She neither looked nor listened, for any indication of an approaching train. It did not appear that any act of hers would have avoided the accident.</p> <p>Held, that the question as to whether there was contributory negligence on her part should have been left to the jury.</p>

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

<p> Insurance policies—Authority to cancel, evidence of insufficient—Ratification, insufficiency of evidence of-—Option to cancel on giving notice—notice must be personal. </p> <p>Five insurance policies were issued to plaintiff, one being issued by the defendant, the others by three other companies. The policies were procured to be issued by one Rieger who was employed by one Spitzer, who was employed by plaintiff. The premiums on the five policies amounted to $166, of which plaintiff paid to Spitzer $100. In this state of affairs the five policies being in plaintiff’s possession Spitzer demanded payment of the balance for premiums; plaintiff said, “I don’t want your policies ” went to the safe, said he had enough insurance and did not want any more, and gave Spitzer two policies issued by companies other than defendant. Rieger had paid the premium on these two policies out of the $100. Spitzer delivered these two policies to Rieger and afterwards by an agreement between Rieger and the defendant, the policy issued by defendant was cancelled.</p> <p>Held, that no authority was given to cancel the policy issued by the defendant.</p> <p>After this, Rieger called on plaintiff and had a conversation on the subject, with the result that plaintiff said to Rieger, “that on the following Saturday, if I gave him these two policies he would bring down the other two and give them to me, and eleven dollars.” Rieger did not accept this offer. There was no evidence that Rieger expressly informed the plaintiff that he had cancelled defendant’s policy.</p> <p>Held, no ratification of Rieger’s act of cancellation.</p> <p>The policies gave the company the option at any time to cancel it on giving a certain notice and making a certain refund.</p> <p>Held, that the notice must be given personally to the assured, or his agent authorized to receive it, and that such personal notice not having been given, the policy was not cancelled under the option reserved in it.</p>

Ajipeal from a judgment entered on the report of a referee. The action was brought to set aside certain assignments and deeds on the ground that they were fraudulent and void.

<p>Appeal from a judgment entered on the report of a referee.</p>

Appeal by the defendant from an order denying defendant’s motion for a new trial on the minutes; and from the judgment. Action for personal injuries caused by negligence of the defendant.

<p> Action for specific performance of contract—Lease, covenants and conditions of—Must be strictly performed on the part of the lessees, to entitle them to the fulfillment of the conditions and covenants on the part of the lessors, the fulfillment of which is based upon the conditions of the same being fully and strictly performed by lessees. </p> <p>In this case, the lessees were entitled to a renewal of the lease, in case they fully and faithfully performed and fulfilled all the covenants on their part, among which were covenants, that the lessees should build a dwelling house on the premises, also that they would not assign nor sublet the premises, without the consent of the lessors.</p> <p>After the execution of the lease, by another instrument, the lessors for a valuable consideration discharged the lessees from the covenant to build the dwelling house, and permitted the lessees to assign the lease to one Martin McIntosh, (the plaintiff) on the express condition that said McIntosh should not assign the lease nor sublet the premises without the consent of lessors. Said instrument also provided that said lease in all its parts shall be observed and acted upon by the parties, as though the covenant to build the dwelling house had not been inserted • therein. The plaintiff took possession under this instrument and an assignment of this lease, and erected upon the same a building for business purposes, and at the expiration of the term, on the lessors’ refusal to renew the lease, brought action to compel the specific performance of the contract to renew.</p> <p>During the term of the lease, the plaintiff assigned the lease to one Martha McIntosh, who afterwards re-assigned the same to him. The plaintiff in his complaint, alleged that this assignment and re-assignment was made with the knowledge and consent of the defendants (the lessors), who in their answer denied the same. This issue of fact and all the issues of fact thus made, were determined on the trial against the plaintiff, and the trial judge found that the leasings and sublettings were made without the knowledge or consent of the defendants (the lessors), and consequently there was no waiver of the covenant on the part of the lessors. Held, on appeal, that the rule is well established that where a party seeks to enforce a contract by action, he is not entitled to recover, unless performance by him of all its conditions is shown, or unless actual waiver is proved with full knowledge of the default.</p> <p>The defendants, although a religious corporation, have a right to insist upon the letter of the covenants in the lease being fulfilled, notwithstanding their enforcement works great injury to the plaintiff.</p>

<p> Negligence. </p> <p>In this case the judgment was affirmed because it did not appear that the accident complained of was to be attributed solely to the negligence of the defendants. There was no proof as to the way in which the accident happened, and the jury could not have properly inferred from the evidence that the deceased was free from contributory negligence. The views of the trial judge were held to be correct, and he held “ That to sustain a recovery, the negligence complained of must have been the primary cause of the injury, and in this case the injury did not result from the condition or fastening of this grating, but from the manner in which it was used. If there was negligence in its use, from the position in which it was placed by the co-servant of the deceased, it was not the general negligence of the city.'”</p>

The complaint alleged that the plaintiff made to a firm, styled Groot & Chapman, composed of the defendant and two others, a lease of certain rooms for one year, to begin May 1, 1882, at the yearly rent of $4,500, payable quarterly, and in addition thereto $12 monthly for janitor’s fees; that the lessees entered; that on August 1,1882, $1,125 “became due as rent, besides some other amount for janitor’s fees; that the same was not paid, and the said lessees were in default…

<p>Appeal from a part of a judgment allowing a set-off of defendants’ costs against amount recovered by plaintiff.</p> <p>Appeal from order denying defendants’ motion to compel clerk to enter a separate judgment for defendants in the amounts of costs taxed in their favor.</p>

Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes. Appeal by defendant from order denying motion for new trial made at special term upon the case as settled, and affidavits.

<p>Assignment—Married woman—Legal and equitable poioer of disposition of her separate property—Policy of insurance on the life of husband payable to the wife, the premiums being paid by the husband—Consideration and construction of the statute, Laws 1873, chap. 821, § 2.</p> <p>The nature of the gift of a policy of insurance by the husband on his life as a provision for the wife after her husband’s death, raises the question, whether these facts do not limit the power of the wife to dispose of it during the husband’s lifetime. Also whether as against creditors the husband had the right to use his money in payment of the premiums, if such use were fraudulent as to the creditors. In the latter case the statutes on the subject of these insurances make it legal and not fraudulent as to creditors for the husband to take out these policies, to a certain amount or for the wife to take them out, the premiums to a certain amount to be paid out of the husband’s property. Said statutes make no provision as to the wife’s power of disposition, but they declare that such policies in favor of the wife shall be her sole property.</p> <p>Prior to the Act of 1873, chap. 821, page 1235, the courts held that it was the implied intent of the statutes, that the wife should not assign insurance, taken out under tire statutes (Eadie v. Slimmon, 26 N. Y. 15, and other cases following), but since the Act of 1873, the statutes do not imply such an intent in respect to a policy, made payable to a married woman, and in which children have no legal or equitable interest. In such a case, the wife during life, is solely interested. Olmstead v. Keyes, 85 N. Y. 593.</p> <p>In this case the plaintiff respondent made an instrument which on its. face was an assignment of polices which had been issued under the statute. The assignment was made as security for advances made on the faith of it to her husband. After the death of plaintiff’s children the policies were not re-delivered to the defendant assignee. They remained in his possession from the time of the assignment. By the testimony the indications were that the plaintiff assented to the possession of the policies by the defendant after the death of the children. From January, 1882, no child was living. In June, 1884, the plaintiff first made a demand for them.</p> <p>Held, That the inference is, that during the intervening time, plaintiff had assented to the claim of defendant, and that the policies were effectively assigned, and assigned for a valuable consideration.</p>

The action was brought to recover for mustard seed sold and delivered by the plaintiff to the defendants.

Action for personal injuries caused by negligence of the defendant. Appeal by defendant from an order, denying a motion made upon the judge’s minutes to set aside a verdict in favor of plaintiff and grant a new trial. Exceptions to be heard in the first instance at General Term.

Appeal by defendants from judgment entered on verdict of jury and from order denying motion for new trial, made upon the judge’s minutes.

Appeal by defendant from a part of an order, which part denies a motion of defendant that plaintiff be directed to state separately several causes of action, claimed by defendant to be set up in the complaint. Motion by plaintiff to dismiss the appeal on the ground that since the making of the order, the defendant has served an answer.

Appeal by defendant from judgment for plaintiff entered upon the verdict of a jury. The facts and the questions raised appear in the opinion.

Appeal by defendant from judgment entered upon verdict of jury in favor of plaintiff, and from order denying motion for new trial made upon judge’s minutes.

<p>Appeal from judgment entered on a trial before the court without a jury.</p> <p>The facts sufficiently appear in the opinion.</p>

Exceptions by defendant, heard at General Term. This action was brought to recover the sum of money paid by plaintiff to the defendant upon the execution of a contract for the sale to and purchase by the plaintiff of certain real estate, pursuant to the terms of the contract, and also to recover the expenses of examination of the title. The question litigated was as to whether the defendant had, or had not, tendered to plaintiff a good title.

<p> Obstructing and delaying the recovery of judgment, and in the meantime collusively suffering judgments to be recovered against the defendant, under executions on which all the defendant's property was sold so that the obstructed judgment ichen recovered was uncollectible, gives no cause of action, conspiracy not being charged. </p> <p>The trial court found that the defendant being president of a corporation, made and swore to an affidavit in an action against it by the plaintiffs which he knew to be essentially untrue, and on it obtained an order to show cause why a bill of particulars should not be furnished with a stay of proceedings and an extension of time to answer, and afterwards interposed an answer also sworn to by him, which he knew to be false, that those acts of the defendant were done with intent to hinder and delay plaintiffs in the collection pf their claim against the corporation; that while the plaintiffs’ proceedings were thus obstructed, he, the defendant, by collusive arrangements with others, and in a great part upon fictitious claims, procured and suffered the recovery of judgments against the corporation and the issuing of executions thereon, under which all the property of the corporation was sold and disposed of before the plaintiffs could obtain their judgment, so that when the plaintiffs did recover judgment, it was uncollectible and worthless although it could have been collected if the plaintiffs had not been obstructed as stated. The complaint did not charge a conspiracy. Held, that these facts constituted no cause of action against the defendant.</p>

Appeal by plaintiff from judgment dismissing the complaint entered upon the findings of a referee. The facts sufficiently appear in the opinion.

<p>Appeal by plaintiff from judgment of dismissal of complaint, entered upon direction made before a jury.</p> <p>The action was for damages from act of defendant’s servant as alleged.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by defendant from, such part of the interlocutory judgment as directed the appointment of a receiver of certain property. Motion by respondent to dismiss this appeal.

<p>Use and occupation, evidence as to value of, in an ejectment action in a peculiar case—Objections not raising what might be a tenable ground— 2lesne profits, time when right to accrue.</p> <p>To prove the value of the use and occupation of a piece of land recovered by the plaintiff in an action of ejectment, which piece adjoined other lands of plaintiff on which a building was erected, and which piece could not or would not in the usual course of things be held, used or occupied separately from such other lands, it is admissible to prove what would be the rental value of plaintiff’s building with and without the land in dispute. The difference between the two would be the fact to be used by the jury in determining prima facie, the value or the use and occupation of the land in dispute.</p> <p>Strictly perhaps, a question which calls on the witness to make the calculation and state the result is objectionable, as calling for a result from a mental calculation on premises not given to the jury. But if so, that objection is not covered by objections that the question was hypothetical or that it related to a state of facts that did not exist.</p> <p>Mesne profits prior to the accruing of plaintiff’s title, cannot be recovered by him in an action of ejectment.</p>

This is an appeal from an order denying a motion for a new trial. The case was before this court on an appeal from the judgment, on which appeal the judgment was affirmed. The facts sufficiently appear in the opinion.

This is an appeal from a final judgment entered on an order overriding a demurrer, and from such order. The complaint alleges the appointment of the plaintiff as receiver of taxes in the city of New York, and his entry upon the duties of his office as such receiver.

Appeal by defendant from judgment entered on verdict of jury, and from order denying motion for new trial made upon the minutes.

<p>Value of personalty, evidence as to.—The fact that plaintiff had bought articles, not in shops, and by private bargains with persons not in trade, and had articles given her, do not constitute her a competent witness to the value of such articles.</p> <p>Valuation in a policy of insurance.—The valuation contained in a policy of insurance procured, to be issued by the defendant on property as belonging to the plaintiff, such valuation being given by the plaintiff in the absence of the defendant, is not evidence in favor of the plaintiff against the defendant, of the value of the property.</p> <p>Bias and, animosity.—Where a wife sues her husband for the conversion of articles claimed to have been given her by him, and for the most part her title arose from words, as to which she was in several instances the sole witness, evidence that on a certain occasion, she being angered at a certain action of her husband, with repeated oaths said that she would smash every thing in the house, that she would get even with him, is material and pertinent. A fortiori, where there is direct conflict between the husband and wife as witnesses as to whether there had been the gifts claimed by her.</p>

Appeal by defendants from judgment entered upon findings in a common law action, tried, by consent, before the court without a jury.

<p> Dispossess proceedings, against the sub-lessee of an assignee of a lease, not enjoined at suit of execution purchaser of the lease. </p> <p>Where intermediate the docketing of a judgment against a lessee and sale of the lease and his interest therein, under the execution issued thereon, he assigns the lease and the possession change^to the assignee, and the assignee sub-lets a portion of the demised premises, the rent reserved by the sub-lease (no other facts appearing) is, under the principles of the preceding case, payable to such assignee, and he has a right to institute dispossess proceedings for the non-payment thereof. Such execution purchaser cannot interfere with the exercise of that right by injunction.</p>

Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes.

Appeal by defendant from order requiring him to answer a question propounded to him when under examination in proceedings supplementary to execution, etc.

Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial, made upon the minutes.

Appeal by plaintiff from order opening a judgment against defendant and allowing a supplemental answer to be served, on payment of trial fee and disbursements in entering judgment.

<p>Appeal from an order made at Special Term requiring defendant Thompson, sued as surety on an executor’s bond, to furnish a bill of particulars of the facts, by reason of which his principal ceased to act as executor and entered on his duties as trustee in respect to property referred to in the complaint, and stating the act or acts by which plaintiff is alleged to have assenteto said principal’s acting as trustee.</p>

<p>Appeal from order made at Special Term, permitting plaintiff to serve an amended complaint.</p>

<p>Appeal from judgment dismissing complaint.</p>

Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying their motion upon the judge’s minutes for a new trial.

<p>Appeal from a judgment of the Special Term dismissing the plaintiff’s complaint with costs.</p> <p>Action for injunction and damages.</p>

<p> Negligence—Public streets. </p> <p>In this case the plaintiff, while walking along Fourth street, New York city, fell over a block of stone, that had been used for a stepping stone and for a long time been allowed to remain on the sidewalk and to be used for that purpose, and the plaintiff was injured thereby.</p> <p>The trial judge directed the jury as a matter of law that the defendant was negligent in allowing the block to remain on the sidewalk.</p> <p>Held, That there was error in such direction, the question of negligence should have been submitted to the jury. Dubois v. City of Kingston, 102 N. Y. 221.</p>

<p>Appeal from judgment for costs entered on verdict in favor of the defendant and from an order denying plaintiff’s motion for a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff for two hundred and forty-two dollars and fifty cents, entered on a verdict by direction of the court.</p>

<p>Appeal from a judgment entered on findings of a judge of this court, a trial by jury being waived by consent.</p>

<p>Appeal from an order of the special term granting plaintiff’s motion for an inspection of certain written •agreements in the possession or under the control of the defendant.</p>

Motion on the part of the plaintiffs for a new trial on exceptions ordered to be heard in the first instance at general term.

<p>Appeals by plaintiffs from order granting motions for new trials.</p> <p>The facts sufficiently appear in the opinion.</p>

Motion to dismiss appeal. This action was originally brought against Samuel B. Clark. He demurred to the complaint. The demurrer was overruled with leave to answer in twenty days. An interlocutory judgment to this effect was entered and served. Within the twenty days Clark died without having answered. After the expiration of the twenty days no answer having been interposed, plaintiff entered final judgment against Clark.

<p>Lowest bidder under chapter 410, Laws 1882, relative to work done for, and material furnished to, the city of New York.</p> <p>To constitute the lowest bidder to whom under chapter 410 of the Laws of 1882, a contract for the doing of work for the city of New York is authorized to he awarded, it must at least appear, where the biddings are under an advertisement by the city stating an estimate by its surveyor of the nature and extent of the work to be done and inviting proposals therefor, that such estimates were made by the use of the best means of making certainty as great and uncertainty a# slight as practicably possible, so that they shall be an approximate description of the work actually done and so that a calculation of the cost of the work based on them, will be more or less (disregarding inevitable and relatively unimportant inaccuracies) the same as if the calculation were made as to the work when done, and that the cost of the work under his • bid calculated on the basis of such estimate was lower than its cost would be under any other bid calculated on the same basis.</p> <p>Estimates founded merely upon guess as to the facts on which they are based do not constitute either a proper or legal means or element by which to determine the facts as to the lowest bidder for the work to be done.</p> <p>As in the case at bar, there was evidence to the effect that the official who made the estimate on which the calculations were made, based on the bidding, and under which the contract was awarded to the plaintiff as the lowest bidder, was in ignorance of the quantity of the work to be done and the proportion of rock and earth, and merely guessed at these matters; and as the defendant was not allowed to give evidence that would have helped to determine the character of the estimate as a description of the work to be done, and would have tended to show that proper means were not used to make the estimate certain to any extent —the judgment was reversed and a new trial ordered.</p>

Appeal by plaintiffs’ attorney from order denying his motion to set aside orders of discontinuance. The facts sufficiently appear in the opinion.

<p> Attorney, action by for damages for the collusive settlement of action in which he was plaintiff's attorney when not maintained. </p> <p>The complaint in the action, brought by an attorney against the plaintiffs and defendant in an action wherein he was attorney for the plaintiffs, for damages on account of the settlement and discontinuance of that action by agreement between them, alleged that the claim sued on in that action had been assigned to the attorney; that notice of such assignment had been given to the defendant to that action, and that after such notice the plaintiffs and defendant in that action fraudulently conspired together to defraud plaintiff by settling the action, and in pursuance of that conspiracy did settle the action and caused an order to be entered discontinuing it in fraud of plaintiff’s right, and thereby the plaintiff lost the amount of his interest in the claim and the benefit of his collateral security.</p> <p>Held, that the allegations in the complaint were insufficient to constitute a cause of action, and that the complaint was properly dismissed at the trial.</p>

This is an appeal by the plaintiff from an order of the special term, entered December 11, 1886, granting a motion that two judgments entered in the court of common pleas in favor of the defendant and respondent and against Richard Taylor, the assignor of plaintiff, one.for $279.57 on December 4, 1885, and the other for $82.44 on September 11, 1886, and that $150,40 of a judgment entered in this court in favor of said defendant and against said Richard Taylor for $255.48 on…

The action was brought against Lemuel B. Clark in his lifetime. He demurred in person and as attorney, and an interlocutory judgment was entered, overruling the demurrer, with leave to answer in twenty days. The defendant died within the twenty days, and thereafter final judgment was entered against him. The action was revived, and his executrix substituted in his place as defendant, and an appeal taken. The facts appear in the opinion.

Appeal-from judgment sustaining a demurrer. The complaint herein alleged the commencement of an action by the present plaintiffs against Lemuel B. Clark, this defendant’s testator; and set forth at length the complaint therein (the facts of which are fully stated in the opinion of the court in the last reported case, ante p. 494); the entry of judgment therein that the assignment there in suit was void, and that plaintiffs recover the sum of $1,667.31; the death of the…

<p> Marine insurance—Seaworthiness—Barratry—Freight, when deemed earned though worthless cargo is shipped—Conspiracy between owner and shippers to ship worthless cargo and sink ship, evidence of when insufficient. </p>

Action on an undertaking given on discharge of an attachment.

Also appeal from judgment in favor of the defendant entered upon the report of a referee.

<p>Appeal from judgment rendered after trial by jury, and from an order denying motion on the minutes to set aside the verdict and for new trial.</p> <p>For the facts in the case, see 53 Suffer. Gt. 419.</p> <p>The respondent had testified that the appellant at one time had told him that there was three or four thousand dollars more due the respondent, which he (the appellant) could not pay; that he did not have the money at that time, but that he would give his note at three or four months for said amount. This testimony was contradicted by the appellant. The appellant then sought 0 to show that as a matter of fact he had at the time this ^statement was alleged to have been made more than the sum of three or four thousand dollars in the bank—and questions tending to show that such was the fact were asked, and under the objection of the respondent, excluded.</p>

<p>Appeal from judgment entered in favor of the defendant upon the verdict of a jury. S. F. Kneeland, for appellant. Taylor & Ferris, for respondent. Before Sedgwick, Ch. J., and Freedman^.</p>

<p>Appeal from judgment entered upon the verdict of a jury, and from two orders denying defendants’ motion for a new trial. Aaron J. Vanderpoel, for appellants. Edward P. Wilder, for respondent.</p>

<p>Appeal from order. John L. Hill, for appellants. A. P. & W. Man, and Chas. C. Protheroe, for respondents.</p>

Appeal by defendant from order denying defendant’s motion for a further bill of particulars. Edwin R. Leavitt, for appellant. Austin G. Fox, for respondent.

<p>Appeal from an order made at special term allowing the plaintiff to amend his complaint on payment of twenty dollars costs. Whitehead, Parker & Dexter, for respondent. Davies, Cole & Rapallo, attorneys, and Edward C. James of counsel, for appellant.</p>