Volume 24 — Abbott's New Cases

Motion to vacate orders for examination of witness-before trial. These were several actions brought by the plaintiffs,. August, Bernheim and Bauer, against several National Banks in the City of New York to recover moneys deposited by plaintiffs with the said banks, and paid out by the latter on forged checks. One Frederick Fishel, the chief bookkeeper of plaintiffs, and the person who committed the alleged forgeries, was incarcerated in Ludlow Street Jail.

In the matter of the final judicial settlement of the ■account of Catherine N. Curtis and Albert Gr. Waterbury as executors of the last will and testament of John Skill-man, deceased. Hearing on the report of a referee.

Motion by defendant for leave to amend answer, and for leave to inspect notes and letters in the hands of plaintiff. The plaintiff, Emma E. Dryer, set up a claim against the-estate of Harvey Barnard, of whom defendant, Elon G. Brown, is the sole surviving executor, on four promissory notes, alleged to have been executed by the deceased. The proceeding was originally a reference, under the statute, of a disputed claim against an estate.

Appeal by the plaintiff from an order setting aside trial and directing severance of action. This action was commenced on August 27, 1888, by Christian Senft, who then owned certain property known as No. 2267 Second avenue, against the defendants, to enjoin the latter from maintaining an elevated railway in Second avenue in front of plaintiff’s property, and to recover damages for past injuries.

<p>1. Joinder of actions; action for money loaned, united with action to enforce lien.] A cause of action for money loaned, and a cause of action for the enforcement of a lien upon specific avails of certain real estate mortgaged to secure the loan and sold under an order, of the court, by the committee of the mortgagor, who had become insane, may be united in the same complaint, under § 484 of the Code of Civil Procedure.</p> <p>2. Pleading ; allegations sufficient to sustain cause of action.] Where the personal representative of a mortgagee brought an action to enforce a lien upon the avails of the mortgaged property, sold under an order of the court by the committee of the mortgagor, who had become a lunatic, and a demurrer ,was interposed on the ground of insufficient facts, etc., for the reason that the lien of the mortgagee upon the land did not appear to be lost, as the land must have been sold subject to the mortgage. Held, that as the complaint did not show that the mortgage was on record, the purchaser might have taken free therefrom, and that therefore the demurrer was bad.</p>

<p>Extradition ; immunity of person brought from another state for extradition.] A person brought to this State from the State of Hew Jersey, under proper authority, for the purpose of procuring his extradition from this country to a foreign country under a treaty between the two governments, upon a charge of embezzlement, and it appearing on the preliminary hearing that such charges cannot be sustained, must, upon being discharged, be allowed a reasonable time to return to the place whence he was brought; and an arrest in a civil suit before the lapse of such reasonable time will be ineffective to hold the prisoner, who must under such circumstances be discharged and allowed a reasonable time to depart from the State.</p>

Motion by defendant for a new trial. This action was brought by the plaintiff to recover from the defendant damages for the alienation of plaintiff’s wife’s affections. The jury rendered a verdict for plaintiff for $2,500. The defendant contends that the verdict is not sustained by the evidence, and asks that a new trial be granted. The material facts are sufficiently set forth in the opinion.

<p>Highway ; award for lands tahen.'] The right to an award for lands taken for a street opening vests in the owner of such lands at the time of confirmation of the commissioner’s report, and will not pass to a subsequent grantee of such owner by a deed of the premises, which in terms excepts so much thereof as has been taken for the opening of the street in question.</p>

<p>Oorporations ; remedies of member to review fine.] A member of art incorporated association formed for the purpose of obtaining by legal means a fair remuneration for the labor of its members, who has been fined for violation of the laws of the corporation, in continuing in the employment of one who had not complied with its rules as to payment of employes, cannot maintain an action to annul such fines and for restoration of his privileges, until he has exhausted the remedies provided by the by-laws by appeal from the imposition of the fines to the next monthly meeting of the association, and to the judiciary of the International Union.</p>

<p>Costs; additional allowance.] In an abutter’s action for injunction against an elevated railroad and damages for interference with plaintiff’s easement, the court awarded plaintiff a sum for past damages, and directed the injunction if defendants failed to pay a fixed sum for injury to the fee value. An additional allowance was made to plaintiff of five per cent, upon the first sum only. On plaintiff’s appeal from so much of the order as refused an allowance based upon the sum fixed as the injury to the fee value,—Held, that the action of the court below did not amount to a denial of the power to grant an allowance based upon the latter amount also, and that upon such partial appeal the court would not interfere with the discretion of the trial judge.</p>

<p>Costs; granting of costs and extra allowance after return of remittitur.] Where a party is defeated upon the trial of an action, and has therefore had no occasion or opportunity to ask for costs or an allowance, but succeeds, upon an appeal to the court of appeals, in obtaining a favorable judgment; the Special Term may, upon application, after the filing of the remittitur and the entering of an order thereon, grant to such party the costs of the action and an additional allowance.</p>

Appeal by defendants from a judgment entered on a verdict in favor of plaintiffs. This is an action to recover damages for false and illegal imprisonment of plaintiff tiy persons in the employ of defendants. The defendants were proprietors of a retail dry-goods establishment, and employed a large number of persons. The facts out of which the cause of action arose are as follows. Plaintiff, on February 27, 1880, entered 'defendants’ store, and made sundry small purchases.

Appeal by plaintiff from judgment dismissing the complaint. The action was brought by Sophie Cloos against Bernard Cloos for the partition of real property. The complaint alleged that the plaintiff and defendant are joint tenants of the premises, 241-243 Hudson avenue, in the city of Brooklyn, and demanded the usual judgment in partition.

Demurrer to complaint. The complaint alleged that on April 4, 1888, the plaintiffs caused to be issued to the sheriff a warrant of attachment in an action in the superior court, against John G. Bernharth et al., and that the sheriff, under said attachment, received $900 in money.

Appeal by defendant from judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for the unlawful expulsion of plaintiff from the defendant association.

<p>1. Municipal corporations ; presentation of claim under act of 1886. J Under L. 1886, c. 672, providing that actions against cities of over . 50,000 inhabitants for personal injuries sustained by negligence shall not be maintained unless notice of intention to commence such action, and of the time and place of which the injuries were received, shall have been filed with the counsel to the corporation or other proper law officer within six months after such cause of action shall have accrued,—the filing of a claim with the comptroller in compliance with another act, the forwarding of the same to the corporation counsel, and an examination thereafter of the claimant by the latter officer, within six months of the injury, is not sufficient.*</p> <p>2. The case of Denair ©. City of Brooklyn, 5 JV". 7. Supp. 835, opposed.</p>

<p>Appeal by defendant from a judgment of the General Term of the city court of Brooklyn, affirming an interlocutory judgment overruling a demurrer to the complaint.</p> <p>The action was brought by Thomas J. Gavin against the city of Brooklyn to recover $500 damages for injuries alleged to have been done to plaintiff’s horse and cart through the negligence of the defendant.</p> <p>The complaint did not allege that the plaintiff’s claim had been presented to the comptroller of the defendant for adjustment, and defendant demurred on the ground that such complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term and that decision was affirmed by the General Term.</p>

* The action was brought by Ellen Munn against Joseph M. Cook and George Frederick Munn. The nature of the action and the proceedings are fully stated in the opinion of Daniels, J.

<p>Costs; separate bills to defendants appearing by same attorney.1 If the summons and complaint are not served on a defendant until after a co-defendant has appeared and answered, necessitating a separate answer on his part, the court will require payment of separate bills of costs as a condition of discontinuance by the plaintiff, although the defendants appeared by the same attorney, where, however, their -answers are substantially different.</p>

The relator, Richard W. G. Welling, a resident and taxpayer of the city of New York, obtained an order directing the respondents, the commissioners of excise, to show canse why a peremptory writ of mandamus should not issue commanding them forthwith to render decision upon a complaint against one Scheuplein lodged with them by the relator under section 8 of Chapter 175 of the Laws of 1870, as ■ amended by Chapter 549 of the Laws of 1873.

<p>1. Injunction to enforce contract.] The doctrine is now generally-recognized that while a court of equity will not ordinarily attempt to enforce contracts which cannot be carried out by the machinery of a court, e. g., contracts for personal services—it may nevertheless practically accomplish the same end by enjoining the breach of a negative promise—as not to work for another—and this power will be exercised whenever the contract is one of which the court would direct specific performance if it could practically compel its observance by the party refusing to perform through a decree for specific performance.</p> <p>2. The same.] Such contract, to be so enforceable, must be one for the breach of which damages will not afford an adequate compensation ; the plaintiff must come into court with clean hands, and his contract must not be so oppressive as to render it unjust to the defendant to enforce it. It must be one in which there are mutual promises, or which is founded on a sufficient consideration ; its terms must be certain, and in respect to it the minds of the parties must have distinctly met so that there can be no misunderstanding of their rights and obligations.</p> <p>8. The samé.] A provision in a contract for personal services which reserves the right to employ for the following season to the same employer, simply preventing others from negotiating with the employe, creates nothing more than an exclusive right as against other employers, and until consummated by an agreement for such following season imposes no definite or complete obligation to engage with the same employer, and leaves all the terms of such re-engagement open to negotiation. In a legal sense it is ■ merely a contract to make a contract if the parties can agree, and as such is not enforcible against the employe by injunction against entering into other employment.</p>

Trial by the court. William M. Bennet brought this action to recover certain moneys claimed to be due under a covenant contained in a deed made by his ancestor to the defendant.

<p>1. Descent; application of L. 1889, c. 406.] The provisions of L. 1889, c. 406, § 1, which amended the statute of descents by creating a provision in favor of the widow, etc., applies only in cases of intestacy.*</p> <p>2. Executors, etc.; inventory under said act.] Section 2, of said act, making an additional provision for the widow out of the personal estate, where her interest in the real property, in addition to her dower right, is of less value than $1,000—applies only to the estate of a decedent who leaves real estate.†</p>