Volume 23 — Jones & Spencer's New York Superior Court Reports

<p>Appeal from a judgment in favor of the plaintiff.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial.</p> <p>The action was brought by the plaintiff to recover damages for injuries alleged to have been sustained by him by being struck in the eye by a small particle of iron, which fell on him from the defendant’s road while riding on the front platform of a surface horse-car in West Broadway, through which street the defendant’s road is operated. The alleged negligence consisted in defendant allowing its railroad track to become worn, and scaly, and in allowing particles, of iron to accumulate on the structure of the said railroad, so that particles or scales of iron could be detached and thrown therefrom by defendant’s train of cars, and in not providing means to prevent the discharge or falling of such pieces, scales or other materials into the street beneath the track.</p>

<p>Appeal from interlocutory judgment entered upon order overruling defendant’s demurrer to one of the causes of action in the complaint, and from such order.</p> <p>The cause of action demurred to was thus set forth : “ That at all the times hereinafter mentioned the plaintiff was, and still is a resident of and engaged in business in the city of Brooklyn, in the state of New York, and that the defendant was, and that it still is a corporation duly organized under the laws of the state of Pennsylvania. That on or about April 24, 1884, this plaintiff and the defendant entered into an agreement whereby this plaintiff agreed to sink about one hundred and fifty-four wrought iron piles about ten feet deep into the sand, for an iron pier at Cape May, in the state of New Jersey, and to place and secure iron transverse girders on top of the piles, and to put in place the transverse and lateral rods and struts designated in the plans and specifications which accompanied said agreement, and that all such work should be. performed within thirty days after iron sufficient therefor had been delivered, provided the iron so delivered was in proper form and adapted to said work, and was delivered in sufficient quantity, and that the floor of the pier was laid as fast as required for the erection of the iron work; and, whereby, the defendant agreed to pay to this plaintiff at the rate of twenty-seven dollars for each pile sunken, and to deliver all the iron so called -for by said agreement, plans and specifications, at the site of said pier, as rapidly as the progress of the work required, and to furnish a competent engineer to furnish lines and levels, and to lay the floor of the pier as fast as it was practicable, and to make payments to this plaintiff twice each week as the work progressed. That the plaintiff duly performed all the conditions of said contract on her part, but that defendant failed to deliver the iron called for by said contracts, plans and specifications, in proper form or adapted to said work or in sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as fast as it was practicable to lay it, and that in consequence of such failures this plaintiff was delayed in the performance of her contract fifty-five days more than she would have been, had the defendant performed the conditions of said contract on its part, and was for said fifty-five days obliged to keep a number of men and her tools and machinery ready to engage in said work, and to pay said men for their working time in said fifty-five days, to the damage of this plaintiff forty-two hundred and ninety dollars.</p>

<p>Appeal by defendant, from judgment entered upon verdict for plaintiff, and from order denying motion for new trial.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by plaintiff from judgment dismissing complaint entered on direction of judge at trial term before a jury. The facts appear in the opinion.

<p>Appeal by defendants from judgment entered upon findings and conclusions made by a judge, in a case tried by consent before him without a jury.</p> <p>The facts appear ill the opinion.</p>

Appeal by defendant from a judgment entered upon a verdict rendered by the jury in favor of the plaintiff, on a second trial'of the action. On the first trial a verdict was rendered for defendant under the direction of the court. Upon plaintiff’s appeal from the judgment entered on that verdict, the judgment was reversed and a new trial ordered. (For the report of the case see 54 Super.

<p>Appeal by defendant from judgment entered upon report of referee.</p> <p>The facts ajtpear in the opinion.</p>

<p> Money had and received—Evidence—Copy Affidavit—Proof of handwriting by counsel. </p> <p>The firm of II. B. & Co., after their discharge in bankruptcy, realizing more from certain assets than estimated prior to said discharge, proceeded to make a dividend thereof, to which end they made enquiries of defendant concerning plaintiff as one of their former creditors, and in reply were informed by defendant that he, defendant, was at the time said firm’s indebtedness accrued, a partner of plaintiff: that he had the firm books, &c. Said firm of H. B. & Co. drew their check for the amount of the dividend, as follows : “ Pay to the order of John Pondir [defendant] for the use of Holthausen & Co., [plaintiff] ”...... and delivered the same to defendant. Defendant was not a partner of plaintiff, but was employed by the latter at a compensation of part of the profits.</p> <p>Held, That an action for money had and received could be maintained by plaintiff for the recovery of the amount of said payment from defendant.</p> <p>It is not a good objection to the introduction of an affidavit in evidence, that the original is not produced, when it appears that the said original is out of the state and camiot be produced under subpoena.</p> <p>A counsel is not forbidden by the rule of privilege Horn testifying as to his client's handwriting.</p>

The plaintiff in the first action sought to recover for alleged conversion by the defendant of certain shares of stock. The second action was brought to recover for certain advances made by the plaintiff in that action to the defendant. Both actions were tried together before the same referee. Further facts appear in the opinion.

<p>Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.</p> <p>The facts sufficiently appear in the opinion.</p>

<p> Injunction—not granted when lis pendens failed. </p> <p>An injunction will not he granted restraining the disposition of real property during the pendency of an action in relation thereto, where the rights of the plaintiff are fully protected by the filing of a notice of lis pendens.</p>

<p>This action was tried before a judge and a jury.</p> <p>The trial judge directed the jury to render a verdict in favor of the plaintiff, and further directed that the exceptions be heard in the first instance at the general term.</p> <p>The facts appear in the opinion.</p>

<p>Appeals from judgments entered on the trial of the-above actions before the court at special term.</p> <p>The facts appear in the opinion and the head note.</p>

The facts sufficiently appear from the head note, and the opinions. Held: and no suspicion of any unfair or questionable dealing in the transaction on his part. “In this form of action the burden is on the plaintiff to prove affirmatively that the agreement to convey to him has been violated by the defendants, and that the title which they were able to give him was not such as he was bound to receive.

<p> Lease in counterparts, two to be construed together—General Term, when error in not disposing of case below as a matter of law cannot be assigned at—Infectious disease, ivhen not defense to action for rent. </p> <p>' The action was for rent of a dwelling house let by plaintiff to defendant. By the lease in plaintiff’s possession the house was let “ to be furnished substantially as it now is.” By the counterpart in defendant’s possession “ it was let to be furnished as it now is.” At the time of making the lease the house was, to the knowledge of both parties, occupied by a tenant of the plaintiff. Held, that by legal implication the counterpart held by defendant expresses what is expressed by the word “ substantially ” in the lease held by plaintiff.</p> <p>One of the defenses to the action was that the requisite amount of furniture was not in the house. On the trial, both sides litigated this question. At the close of plaintiff’s case defendant moved for a dismissal of the complaint. At the close of the proof on both sides the judge ■ submitted that question to the jury upon the evidence given on both .sides, with the instruction (requested by defendant) that, “if the jury ■believe that the house as offered to the defendant June 1, 1885, was not furnished substantially as it was when the lease was executed, they .must find for the defendant.” No request for a direction of a verdict for defendant was made. Held, that the defendant could not complain ■of the disposition of the case.—(1st) because at the time of the motion to dismiss, plaintiff had made out a case for the jury; (2d) because the submission to the jury was acquiesced in by him.</p> <p>-Another defense was that the house had been infected; this was overruled. Meld, no error, it appearing that the infection occurred without plaintiff’s fault long after the making of the lease, and there being no ■ covenant as to the fitness of the premises for occupation as a dwelling.</p>

The action was brought to recover damages alleged to have been sustained by the plaintiff, without negligence on his part and through the negligence of the defendant.

<p> Will—devise of life estate, with limited power of disposition. </p> <p>Where the will gives the devisee, the testator’s wife, a life estate in his-. real property, and then provides, “ it is my will that.....my real estate be at the disposal of my wife for distribution among her own relatives,”—upon the death of such devisee without the exercise of this power, the fee is held by the heirs of the testator, free from such power.</p> <p>Upon construction of the will in question in this case, held that it gave-to the widow only a life estate in the realty, with a limited power of disposition thereof.</p>

Appeal by defendant from judgment entered on a verdict as directed by the court, and from an order denying a motion for- a new trial made upon the minutes. The defendant had been and was a stockholder of a warehousing corporation, incorporated by chapter 701,. Laws of 1872. The company was indebted upon certain promissory notes, upon which actions had been brought against it, judgment against it obtained, and execution thereunder returned unsatisfied.

<p>Appeal from order of the Special Term referring the issues in this action for trial before a referee.</p> <p>The facts appear in the opinion.</p>

The action was to procure the repayment to the plaint • iff of the ten per cent, deposited by him with the auctioneers, on a stile by auction of certain real estate, and to recover the expenses of examining the title, on the ground that the vendors could not give a good title. The answer, among other things, alleged a cause of action against the plaintiff for a forfeiture of the ten per cent., alleging that the vendors have a good title.

<p>Trial of an action.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by defendant from judgment and from order denying a motion for a new trial. Sufficient particulars of the contract referred to in the opinion, will be found in the report of the decision on a former appeal in this case (53 Super. Ct. 46). The other facts sufficiently appear in the opinion.

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

<p>Labor associations (unincorporated) right to adopt device—Infringement ' on device may be enjoined—This in action by some, on behalf of all members—Illegality or contravention of public policy not sufficiently shown.</p> <p>Bight to adopt a device. An unincorporated association of operatives, performing work on materials furnished to its members thereby producing an article manufactured out of such materials by their work, may adopt a device for the purpose of designating that the articles contained in a receptacle, to which it is attached, were made by a member of the association.</p> <p>Protection of right. The members of such association have a property right in the device so adopted, which is entitled to the protection of a court of equity, on the same principle, and under the same circumstances and restrictions, upon and under which courts protect trade marks and good-will.</p> <p>Parties plaintiff to action. One or more members of such association (the members thereof being numerous) may sustain an action, on behalf of themselves and all the other members, to restrain an infringement on such device.</p> <p>Illegality not established. The fact that one of the objects of the association is to maintain fair wages for its members, and that the association furnishes its labels bearing its device thereon, to those shops and manufactories only, which employ exclusively its members, do not conclusively show that its object was illegal as against public policy.</p>

Place as plaintiff, in the stead of the former plaintiff. The action was begun in the name of Barker Place, as executor, &c., against the present defendant. Final judgment was for the defendant. Barker Place, as executor, &c., appealed from this judgment to the general term. Before the appeal was taken, proceedings were begun before the surrogate to remove Barker Place, as executor.

Appeal by defendant from an interlocutory judgment, that defendant account, etc. The facts sufficiently appear in the opinion.

Appeal by the purchasers at a sale, conducted by a referee, under a judgment in foreclosure, from an order denying the prayer of their petition to be relieved from the purchase ; and another appeal, by the same persons, from an order compelling them to complete the purchase. Upon the decision of the motion, from the orders entered on which the appeals are taken, the court at special term, delivered the following opinion :

<p>Appeal by plaintiff from judgment dismissing complaint, entered upon order made at trial term before a j'ur7-</p> <p>The facts sufficiently appear in the opinion.</p>

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

<p> Deed absolute on its face, and subsequent agreement making grantee a trustee as to proceeds of sale of the premises—When do not constitute mortgage. </p> <p>A., who held title to premises belonging to his firm, conveyed these premises in 1871 to B., a special partner, to whom the firm owed $60,000, the deed being absolute on its face, and reciting that the conveyance was subject to a mortgage of $6,000 which the grantee assumed. The deed was forthwith recorded as a conveyance, and nine days thereafter, B. made an agreement with the members of the firm, reciting the conveyance to him of property, as security for the sum of $30,000, and agreeing, among other things, that whatever he realized above $30,000 from the sale of the premises, which he held as trustee, he would pay over to the others, and if he sold them for less than that sum, without .their consent, he should forfeit his claim on them for the difference. It was also provided that the sale was to be effected in two years. B. died in 1873 and A. in 1880, both leaving wills. In 1882 the agreement was recorded both as a deed and a mortgage. In 1881 the executors of B. assigned all his interest in the agreement to C., who, without malting B.’s heirs parties to the' action, foreclosed the instrument, and on the foreclosure sale conveyed the premises to defendants. Plaintiff contracted to purchase the premises from defendants, but objecting to the title as defective, sued to recover back the money paid and the expenses he incurred on account of the contract.</p> <p>Held, That the deed and agreement together are not a mortgage in form, nor did the parties thereby intend that there should be a mortgage ; that B. became the owner of an absolute title in fee, with absolute power of disposition, and a trustee as to the proceeds only; and that upon his death the legal title to the premises vested in his heirs, who could not be affected by any transfer by the executor, and the title of defendants was therefore not only doubtful, but bad.</p>

<p>Appeal from two orders.</p> <p>The facts appear in the opinion.</p>

<p> Personal injuries—Damages for future pain and disability, when question of not to be submitted to jury. </p> <p>In an action for damages for personal injuries, the only testimony relating in any way to plaintiff’s injuries, was her own, from which it appeared that her leg was broken, her arm fractured, and her scalp torn from her forehead for several inches; that she had suffered pain all the time since the accident; that she had not been able to walk without crutches from the time of the accident to the time of her testifying, viz.: about two years; that the condition of her broken leg interfered with her ability to walk; and that she could not fill any situation.</p> <p>Held, that on this testimony alone, it was error to submit to the jury the question of future pain and future disability, with power to award damages therefor.</p> <p>Sedgwick, Ch. J., dissented, holding that, while there might be a doubt as to the right of the jury to award damages for future pain, it was competent for them to decide unaided by expert testimony, whether or not her disability to fill a situation ensued from her broken leg, and would or would not be reasonably certain to continue.</p>

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

defendants’ warehouse was “ frost proof,” etc. On January 30, 1886, the Clyde Steamship Company discharged on its dock, in Brooklyn, seventy-one barrels and one box of tuberose bulbs, belonging to the respondents ; twenty-five barrels were at once carted away by the respondents, the balance, forty-six barrels and one box, remained on the dock for several hours.

<p>Appeal from an order denying defendant’s motion to set aside the judgment entered on the report of a referee; and also' appeal from an order directing the clerk to readjust the bill of costs presented by the plaintiff, and to allow plaintiff full costs as though the recovery had been for the recovery of fifty dollars or more.</p> <p>The facts appear in the opinion.</p>

<p>Appeal from judgment entered on the dismissal of the complaint on a trial before a jury.</p>

Appeal by defendants from judgment entered upon the decision of a judge at special term. The following opinion was delivered by the court at special term:

Action to recover $250, which plaintiff paid to defendant under a contract made by defendant as executor of one Taylor, for the sale of property known as No. 240, Lexington avenue, New York city, and also the sum of $50 counsel fees.

<p>Appeal from a judgment in favor of the plaintiff.</p> <p>The case was tried before the court without a jury. The facts sufficiently appear in the opinion.</p>

Appeal by defendant, from order continuing order of injunction, pendente lite.

<p>Appeal by plaintiff from order denying plaintiff’s motion to set aside the report of a referee and for a new reference.</p>

<p>Appeal from order adjudging the defendant guilty of contempt, for a refusal and neglect to obey and perform the judgment in this action, and committing him to the county jail; there to be kept and imprisoned, until he shall pay the fine and costs imposed, and do and perform the matters and things required in and by the judgment of the court, as set forth therein.</p>

Action to recover an instalment under contract by which defendants on their part, guaranteed and agreed to pay plaintiff, in each and every year of the term of seven years succeeding July 1, 1874, dividends of not less than seven per cent, upon the par value of the stock of a certain corporation, amounting to the sum of $150,000, subscribed and paid for by plaintiff. Further facts appear in the opinion.

Apppeal by defendant from a judgment in favor of plaintiffs entered upon the report of a referee. The facts appear in the opinion.

Appeal by defendants from order continuing order of injunction. The defendants Hartwell and Woodward made a general assignment for the benefit of their creditors to defendant Lantry, as assignee. The plaintiff was a creditor for wages. He was not preferred by name in the assignment.

<p>Appeal from order denying motion to strike from judgment in foreclosure, certain matters.</p>

<p>Appeal by defendant from judgment entered upon verdict of jury, and from order denying a motion for a new trial.</p>

<p> Landlord and tenant—Election of landlord to treat tenant holding over as tenant for new term, when it accrues—Posting notice to let, not inconsistent with election to hold as tenant—Notice of election to hold as tenant (if in any event necessary) not inefficacious because given after complete removal. </p> <p>Where a tenant after the expiration of his lease, supposing there is no particular hurry in getting out, remains in possession of the demised premises four days after the expiration of the term, leisurely removing his goods to other premises previously hired by him, which could have been removed in a much shorter time, but giving instructions to his employee in charge, to move the things out at once, if any one from the landlord asked for the keys, Held, that these facts showed an intentional act of using the premises for a time for Ms benefit; and that the landlord had a right to elect to treat him as a tenant, upon the conditions of the first letting.</p> <p>The posting on the premises by the landlord, pending negotiations for a new term commenced before the expiration of the old one, of a bill “To Let,” and allowing it to remain after the expiration of the term, Held, not inconsistent with an election to treat the tenant, as a tenant for a new term.</p> <p>After the right of election has accrued, Held, that the giving of a notice to insist on the right (even if in any event necessary) was not inefficacious, because not given until after the tenant had completely removed.</p>

Appeal by defendant from an order directing the defendant to pay alimony. The following opinion was delivered at special term:

This action is to recover on two policies of insurance upon the life of George H. Palmer, issued by the defendant, one for $2,500, and the other for $10,000. George H. Palmer in his lifetime made a general assignment, for the benefit of his creditors, to Charles Eberlin. Charles Eberlin on the complaint and his affidavit, moved to be brought in and made a party defendant to the action.

Appeal by plaintiff from, judgment for defendant entered upon, findings and. conclusions of the court at special term. The facts appear in the opinion.

The plaintiffs were the owners of certain premises in the city of New York, and the defendant was the owner of the premises adjoining on the east. The plaintiffs brought their action to recover damages for injuries which they alleged they sustained, by reason of the emission of smoke, dust, and dirt upon their premises, through certain stove pipes which the defendant had inserted into the wall separating the plaintiffs’ premises from those of the defendant.

The motion was based upon the following covenant in the mortgage : “ And it is further expressly covenanted and agreed, by and between the parties hereto, that if default shall be made in payment of the principal sum mentioned in the condition of the said bond, or of any part thereof, or of the interest which shall accrue thereon, or of any part thereof, or of any tax or assessment, or of any part thereof, or of the interest thereon, or of any part thereof, at the respective…

Action for damages sustained by plaintiffs through the partial destruction of their vessel, the bark “Phison,” alleged to have been caused by defendant's negligence. The facts and exceptions appear in the opinion.

Appeals from judgment in favor of plaintiff, entered upon the verdict of a jury. The facts sufficiently appear in the opinion.

Appeal by plaintiff from judgment entered on verdict for defendants, and from order denying motion for new trial made upon the minutes. The facts sufficiently appear in the opinion.

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

<p> Contracts—Merger of former agreement in later—Provision of contract for sale of house to deliver in good condition—Effect on, of acceptance of deed with contemporaneous agreement providing only for certain items of work. </p> <p>Defendant, by an agreement in writing, agreed to sell plaintiff a certain house and lot, the house to be delivered in good condition, and the deed to be delivered on April 28, 1887. Defendant paid the earnest money; assumed a mortgage on the property, and when the deed was delivered, paid the cash balance of the purchase price, except $350, retained under the following agreement signed by both parties: “ On closing contract between Richard B. Disbrow [plaintiff] and Samuel E. Harris [defendant), there has been allowed to Mr. Harris $50, for grates (not in), and Mr. Harris has retained $300, to secure completion of sidewalks and iron gate on stoop, and when done, said Disbrow is to receive the $300.” Plaintiff, having completed sidewalks, etc., brought this action to recover the $300, unpaid on the contract. Defendant set up a counter claim founded upon an alleged failure to perform the agreement to deliver the house in good condition, on the 28th day of April, 1887, at the same time the deed was to be delivered.</p> <p>Held, upon consideration of the intent of the parties, gathered from the contents of all the instruments, the pleadings and evidence, that there was a merger of the preliminary contract of sale in the later instruments, which ■ the parties evidently designed as a complete performance of the entire original contract; and that the trial judge did not err in refusing evidence as to the bad condition of the premises, in support of the counterclaim.</p>

<p> Sale on trial—retention of property beyond time fixed fir test. </p> <p>In sales on trial, the failure to return the goods within the time specified for trial makes the sale absolute.</p> <p>In the case at bar, the contract and extension of time to test, show that it was the intention of the parties that on or prior to December 1st, the machines should be paid for or returned; that if within that time defendant did not desire the machines, he was to properly box them as plaintiffs’ property, and deliver them subject to its order, at the nearest railroad station; that this was not done, but the machines were without further extension of time, retained by defendant and used, either in testing them, or for purposes of his own, till the following February, when plaintiff first learned that defendant did not desire them. It also appeared that, in proper time, defendant was notified by plaintiff that it considered the sale absolute.</p> <p>Held, that by his acts, defendant had made his election, and must be assumed to have accepted the machines, as though they had answered satisfactorily every test imposed.</p>

<p> Attorney—Liability of for costs in action by non-resident. </p> <p>The attorney for a non-resident plaintiff who has filed no security for costs is liable therefor to the extent of $100, under § 3278, Code Civil Procedure, though he was not plaintiffs attorney when the action was begun.</p>

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

-The action was brought by the Boston Marine Insurance Company as subrogated to the rights of its assured, to recover from the defendant the amount of a loss paid by plaintiff under its policy of insurance upon certain master’s drafts, hypothecating the ship “Zorka,” of which ship defendant was sole owner, and his firm of Slocovich & Co., the consignees.

The complaint alleged that the plaintiff is the widow of one Burgess Cluff, deceased; that said Cluff died on or about March 12,1871, leaving him surviving this plaintiff and their two children; that said Cluff left a will which was duly admitted to probate by the surrogate of county of New York; that letters testamentary were duly issued by the surrogate of said county to one Edward E. Tower, on or about April 12,1871; that the defendants, together with said Tower,…

<p>Infant, judgment against by court of general jurisdiction, validity of, under ■ Code of Procedure, although no affidavit of service in the judgment roll.— General guardian may derive benefit, through a judgment in an action to which both he and the infant are parties.</p> <p>Where the judgment roll in an action in a court of general jurisdiction (judgment entered June 12, 1852), contains an affidavit made by the father of an infant defendant, setting forth that the summons was personally served on the infant, and praying for the appointment of a guardian ad litem, and further shows that a guardian ad litem (other than the father) was appointed; that he appeared by attorney and interposed an answer praying that plaintiff be compelled to make proof of the facts alleged in the complaint; that a referee was appointed to take such proof and report; that the referee issued a summons to the attorney of the adult defendant and to the attorney of the guardian ad litem requiring them to attend on the reference, which was duly served on the parties; that the referee then took such proof and reported that all the allegations of the complaint were true, and that the plaintiff should have a certain judgment; and that the report was duly confirmed and judgment entered in accordance therewith; but did not contain an affidavit of service on the infant.</p> <p>Held, no proof being adduced that the summons had not been served on the infant according to law, that the judgment was valid as against the infant, and the infant was conclusively bound thereby.</p> <p>The action above mentioned was brought by Hickson W. Field, Sr., against John M. Bradhurst, Elizabeth B. Field (then an infant) and others, for the specific performance of a contract of sale of real estate contained in a lease to the plaintiff, under which lease the plaintiff had an unqualified right to terminate the lease and purchase the property, subject to which lease the property was granted by John M. Bradhurst and wife to Hick-son W. Field, Jr., and wife, and their issue. The judgment, among other provisions, adjudged that John M. Bradhurst and wife and Elizabeth A. Field, by her guardian ad litem,, execute and deliver to Hickson W. Field, senior, a deed conveying to him the premises in fee simple. It also appointed Hickson W. Field, Jr., guardian for Elizabeth B. Field, his daughter, with certain specific directions.</p> <p>Held, that under the circumstances there was no bar to Hickson W. Field, Jr., deriving title or benefit through the judgment, arising out of a relation of general guardian sustained by him towards the infant.</p>

<p>Deed, purporting to convey an estate or interest greater than the grantor in fact had, when not sufficient to pass under § 1, title 5, eh. 1, part 2, B. S., the interest or estate, which he in fact had.—Surrogate's decree on accounting, circumstances rendering it a serious question whether infant parties are absolutely concluded by it.—Power of sale not well executed, by conveyance in satisfaction of a debt due by decedent.—Trustee, a deed by one of three in whom the legal title is by will vested in trust, when it will not pass a title which a purchaser will be compelled to take.</p> <p>E. made a deed to L. J. P., purporting to convey seven undivided tenths of certain real estate. These seven tenths had previously been conveyed to R. under an agreement by which he held two of them in trust to convey to A. S. and two in trust to convey to L. J. P. The two to be conveyed to A. S. had been so conveyed before the deed to L. J. P.; and L. J. P. made affidavit that the deed to him was not intended to convey R.’s entire interest. Held, that an objection to the deed to L. J. P. that it did not pass the entire interest or estate which R. then had, was well taken, and was not overcome by the provisions of § 1, title 5, chap. 1, part 2, R. S.; but on the contrary, that deed was at least liable to be reformed in equity at the suit of R.’s representatives as heirs-at-law.</p> <p>An executrix and trustee presented to the surrogates’ court a petition for an accounting, and from the schedules filed in connection therewith it appeared that Abraham Scholle had presented to her a claim against the estate which she classified as uncertain and disputed. It did not appear on what the claim was based. Afterwards she presented a petition for a final accounting and the account and schedules filed in connection' therewith showed that the claim of Scholle had been settled by a conveyance of decedent’s interest in certain real estate, but the precise nature of the settlement was not fully disclosed and no copy of the deed was submitted. Under those circumstances, Held, that it was a serious question whether infants, though represented by a special guardian, were by the decree entered on the accounting, absolutely concluded as to the settlement made between the executor and Scholle of his claim (which was based on a written guarantee of the deceased that fifty per cent, of the principal and interest of a bond secured by a mortgage on real estate in which the decedent had a three tenths interest, one L. J. P. two tenths interest, one W. three tenths, and Scholle himself two tenths, should be paid, and that he would pay one half of the taxes and assessments on the property), whereby he should withdraw his claim against the estate and allow it to be settled up and the executrix should withdraw the answer interposed by her in an action brought by him to foreclose the said mortgage, and relinquish all interest she had in the mortgaged premises, individually and as executrix and trustee; or as to deed executed and delivered pursuant to the settlement.</p> <p>Where a will gives to an executor power to sell real estate as he shall deem expedient and for the best interests of certain legatees, Held, that the power is not well executed by a conveyance to a creditor of the deceased in discharge of the debt due him.</p> <p>Where a will devises real estate to the executors thereinafter named in trust, with power to sell, dispose of, and convey at such time and times and in such •manner as to them should seem proper and best for the interest of his estate, and then nominate and appoint three persons executors, Held, under the authority of Argali «. Raynor, 20 Hun 267, and Jordan «. Poillon, 77 2V. Y. 518, that a deed made and executed by one of the three, the other two being in life and not having renounced their executorship and trusteeship, will not pass a title which a purchaser will be compelled to take.</p>

The court below directed a verdict for plaintiff, in the sum of $2,661. The exceptions taken by defendants were ordered to be heard in the first instance at a general term. The facts sufficiently appear in the opinion and the head note.

Appeal by defendant from judgment entered upon verdict of jury. The facts sufficiently appear in the opinion and in the head note.

<p>Appeal "by defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by each party from a judgment entered upon a report of referee, directed in an interlocutory judgment. The facts sufficiently appear in the opinion and the head notes.

<p> Costs—where the remittitur from the court of appeals simply shows that the judgment beloiu was modified as stated in the opinion, without costs, the appellant has a right to have his liability for general term costs determined on a motion—What is necessary to be shown on such motion.—Omission of opinion from appeal booh, effect of. </p> <p>The remittitur from the court of appeals in this action (which was an equity action), recited that that court did order and adjudge that the judgment of the general term of the superior court, appealed from by the defendant, be modified as stated in the opinion, without costs; and then proceeded, “ Therefore it is considered that said judgment be modified as stated in the opinion, without costs.” The defendant moved at special term to have the special term judgment, and that of the general term, for costs, canceled of record on depositing with the clerk of the court the amount of the special term judgment, or that amount with interest thereon to date of its tender to plaintiff’s attorney. The motion was denied and from the order entered on that denial the present appeal was taken.</p> <p>Held, (1) That defendant had a right to have his liability for costs beyond the amount tendered by him determined, and that a motion is the proper remedy. (2) That the court of appeals had power to relieve the defendant from the general term costs; but as it did not appear from the remittitur that the court had in express terms exercised this power, and as the remittitur referred to the opinion of that court (which was not printed in the appeal book on the present appeal) as the source from which the nature and extent of the modification was to be gathered, there was nothing to show that it intended to interfere with the costs imposed below, or that its actual determination was to relieve defendant from the general term costs, and as the burden of showing such an intention, or such an actual determination, rested on the defendant, the order below should be affirmed.</p>

Defendants Wetmore, White and Maynard, residents of Marquette, Michigan, were there personally served with summons, complaint, order and notice under § 440 of the Code. The order contained the provisions of that section for service without the state, only; and not those for publication or mailing. The order appealed from set aside, and vacated the order for this service, with costs to defendants.

Exceptions ordered to be heard in the first instance, at general term. The action was brought by plaintiff, as widow of George Feitner, deceased, for dower in a lot in 48th street, in this city, of which lot the defendants are seized and possessed. The material facts are these: The plaintiff was born in 1820, and was married to said George Feitner in 1835.

<p> Presumption in favor of findings of fact, when appeal book fails to state that it contains all testimony taken on trial, etc. </p>

<p>No provision in a written contract providing that time shall be of the essence of the contract and that there shall be no waiver of any part of the contract except in ivriling, can afford immunity to a party thereto, from the consequences of his own acts by which performance is made impossible— Effect of failure to insist on forfeiture for non-performance within time fixed, and directing continuance of work—not inconsistent with right to damages for non-performance on time.</p>

Motion by each party, for judgment upon a verdict directed for the plaintiff by the court, subject to the opinion of the general term. The complaint contained two causes of action based upon the refusal of the department of docks of New York city, to award contracts for certain work in the said city, plaintiff claiming to be the lowest regular bidder therefor.

Action in ejectment. This case has been twice before the court on appeal. (See 53 Super. Ct. 398, and 54 Ib. 365.) On the first appeal it was held that the plaintiff was the owner of the strip of land in dispute.

<p>Appeal from, order.</p> <p>This motion was made by the plaintiff in August, 1886, for leave to continue the action against the estates of Park and Baxter, and also to be relieved from his default and failure to file a bond for costs as required by order of the court, made June 11, 1878, and that he be now permitted to comply with that order. The action was commenced by the service of summons in June, 1877. The complaint was served in November, 1877, plaintiff’s time having been previously extended by order. Notice of motion for order requiring plaintiff to give security for costs was served March 12, returnable March 20, 1878. The hearing on this motion was adjourned,, at plaintiff’s request from time to time until June 4, 1878, when it was argued, and the motion was granted fixing the undertaking at $2,000. Order was entered and served accordingly June 11, 1878, requiring the bond to be filed within sixty days after service. The undertaking never was filed. The defendant Park died December 13,1882, and his administrator was appointed January 6, 1883. The defendant Baxter died February 17, 1884. The administration of his estate is in Vermont. The defendant Stewart was not served.</p> <p>The following opinion was delivered at special term :</p>

<p>Exceptions taken by the defendant, James B. Colgate, ordered to be heard in the first instance at the general term.</p>

<p> Different assignments of chose in action—that prior in point of time protected though assignee has gimen no notice either to the subsequent assignee or to the debtor—Estoppel, acts of prior assignee insufficient to constitute. </p>

<p> Time to answer amended complaint properly extended pending appeal from order allowing amendment. </p>

<p>Cooke v. Platt, 98 N. Y. 38, and Platt v. Platt, 105 Ib. 497, followed— Judgment against receiver of estate of testator not to be satisfied out of rents of property belonging to devisees under the will, collected by said receiver, appointed on removal of the executors—Leave to file exceptions to report after time has expired.</p>

<p> Examination of defendant to enable plaintiff to frame complaint—when not granted. </p>

<p> Trial before court—necessity of requests to find—When appellate court will not look into testimony. </p>

<p>Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. For the facts of this case, see 50 Super, Ct. 311.</p>

The action was brought to recover damages alleged to have been sustained by plaintiff through defendants’ failure to perform their agreement to assume and pay a certain mortgage. The facts of the case will be found stated in the opinion of Sedgwick, Ch. J., in Knobloch v. Zschwetzke, 53 Super. Ct., 394.

<p>Negligence—Employer and employee—When foreman is fellow servant— Suitable appliances.</p>

Appeal by defendants from judgment entered upon the decision of a judge at special term. Action for an accounting on a joint enterprise. The facts appear from the following opinion of the court at special term:—

Appeal by plaintiff from judgment in his favor. The facts appear in the following opinion of the court at special term :—

<p> Evidence—Parol evidence not allowed to add to or vary a written contract of sale required to be in writing by the statute of frauds. </p>

<p>Appeal by defendants from an order allowing plaintiffs to serve an amended complaint upon payment of $20 costs.</p>

<p>Appeal from order vacating an order directing service without the state.</p>

<p>Appeal from order of the special term denying defendant’s motion for a bill of particulars.</p>

<p>Exceptions of the defendant Colgate taken at the trial, and ordered to be heard in the first instance at the general term.</p>

<p>Appeal by the plaintiff from a judgment in favor of the defendant dismissing the complaint. The action was tried before the court without a jury.</p>

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