Volume 24 — Howard's Practice Reports

Bosworth, Oh. J., Moncrief, Robertson, Barbour and Monell, Justices. Appeal from a judgment. Case was tried by.a jury. On the 23d of November, 1859, in the evening, plaintiff was passing up the Bowery. When crossing Second street the plaintiff was struck by one of the defendants’ stages, (whose route lay through the Bowery and Second street.) The pole struck the plaintiff, knocked him down, broke his arm and injured his neck.

Motion by plaintiff for leave to perfect his appeal from an order of special term dated December 24th, 1861, granting leave to defendant, Henry Light, to issue execution on the judgment in his favor for $42.84, docketed in Yates county clerk’s office May 6, 1853, and vacating the satisfaction-piece upon said judgment lately filed in said office.

<p>After an executor has filed an inventory of property belonging to the estate, he is not precluded from showing that property not belonging to the estate was inventoried, and may also show that the property belonging to the estate was of less value than the amount at which it was inventoried.</p> <p>That is, the inventory is not conclusive evidence against the executor, of what the assets consist of, and of their value, although it is prima facie evidence against him. on the accounting before the surrogate.</p>

Motion to correct a judgment roll. Also separate motion to strike from the entry of judgment, plaintiffs’ costs, and that defendant be allowed to recover his costs by a proper entry in the roll.

This was an appeal from a judgment rendered by Justice Van Cott in fourth district court, in July, 1861. The appeal was argued in October, 1861. The general term rendered its decision at this term, reversing the judgment.

The circuit commenced on Monday the 6th of January. On that day the defendant made the usual affidavit of merits, which was filed on the following day (Tuesday) at 8o’clock in the forenoon, and before the opening of the court, on that day.

A motion is made, on an order to show cause, to set aside the service of the summons and all subsequent proceedings herein.

<p>An assignee of any thing hut commercial paper, when he takes it tona fide, is liable to all the equities which exist against the demand while in the hands of the assignor.</p> <p>In an action to set off judgments, one against the other, the statute of set-off must control; and the equities of the parties are paramount to the attorney’s lien for costs,</p>

<p>An action involving the construction of a will.</p>

An action to settle the accounts of the plaintiffs as executors, to construe the will and determine the rights of the parties.

<p>Where the defendant denied that the claim in suit was for money received for the benefit of the defendant’s co-partnership firm, but was money borrowed by his co-partner for his individual benefit, and that it was never appropriated to the use of the firm,</p> <p>Held, that evidence to show that the money borrowed was not in fact used in the business of the firm, was properly excluded where the evidence was not sufficient to cast any Suspicions upon the bona Jides of the loan being for the firm. Also that evidence to show that on a final settlement of the partnership accounts by arbitration, this debt was not mentioned on either side, was properly excluded. Also, evidence to show that in the formation of the partnership, the partners arranged between themselves to procure what money they should want in their business from a particular source, was properly excluded. Also, evidence to show that no claim was made upon the defendant for the debt for a year and a half after the plaintiff knew of the insolvency of the other partner, was properly excluded.</p> <p>Held, also, on the motion for a new trial, that the case belonged to that class of cases of conflicting evidence and doubtful facts, in which the verdict of a jury one way or the other is practically conclusive, and ought not to be disturbed.</p>

<p>The intent of the statute of 1860, (Sess, Laws, 771,) giving to the keeper of a boarding house a lien to the extent of the board due, is, to give them the same lien which an inn-keeper has upon the effects of a guest, without reference to the character of the guests, whether they are transient ox permanent boarders.</p>

This action was commenced October 6th, 1853, to recover the amount of two drafts, each drawn and indorsed by Miles White, and accepted by the defendants, by their firm name of Penfield, Harwood & Co., each for $1,000 ; the one dated October 2lth, 1852, at six months, the other dated September 10th, 1852, at eight months. The defendants answered, denying each and every allegation in the complaint.

The bill is filed in this case by the complainant, to compel the defendants to account and pay over to her moneys received by them on the sales of the nine volumes of Cowen’s reports since the expiration of the copy rights of Goulds & Banks, which, it is charged, expired on the 26th of April, 1838, 13th of November, 1843, and at various dates intermediate these two periods.

This action was brought against the defendant as executrix of David Brown, deceased, to recover $500 upon a subscription by the testator for the erection of the church edifice of the plaintiffs; also $100 subscribed by him towards the salary of the minister.

<p>The appeal to the "court of appeals in this caiise was taken, the undertaking and justification, &c. filed in the month of June, 1859, and the respondent’s attorney noticed the same regularly, in good faith, seven terms consecutively, until it was argued. The respondent’s attorney supposed, from a letter received from the clerk, that the return was duly filed with the clerk of the court of appeals, on the 13th September, 1859, until April, 1860, when he received another letter from the clerk, stating that he had given the respondent’s attorney wrong information respecting the filing of the return in this cause ; that it was another similar cause which he referred to in his first letter; that the return in this cause was not then filed. Whereupon, in April, 1860, the respondent’s attorney served a notice on the attorneys of the appellant to file the return within ten days, &c.; which notice was complied with. After the decision of the cause in the court of appeals, in April, 1861, affirming the judgment of the supreme court, and after the filing the remittitur, the respondent’s attorney served the adverse attorneys with a bill of costs in the court of appeals, in which he charged $50, five term fees, three of which terms were notices of argument before the return was filed. The sum of $30, for these three terms, was stricken from the bill on taxation, and the respondent appealed.</p>

This is an action by the complainant for a divorce from her husband on the ground of adultery of defendant, and plaintiff moves for a reference on the ground that defendant has made default. The complaint is on oath, and defendant has put in an answer without oath, claiming the right to do so. Plaintiff returned the answer because it was not verified. The complaint was sworn to by the guardian, and not by the infant.

This was an appeal from an order granting an injunction and appointing a receiver of certain property during the pendency of the action. The facts are sufficiently stated in the opinion of the court.

<p>A defendant may move for a nonsuit vihen the plaintiff rests; or he may give testimony and rest, and then move for a non-suit. The refusal of the judge to grant such motion is equally, in either case, a good ground of exception.</p> <p>After the testimony has been given by the defendant, and both parties have rested, and the defendant moves upon the whole evidence for a nonsuit, it is the right and duty of the circuit judge to direct a non-suit at that stage of the cause, if the plaintiff is not entitled to recover, and a verdict in his favor could not be sustained.</p> <p>Where there is a disputed question of fact—as, whether the engine bell of a railroad train was rung at the proper time before crossing a public highway, and evidence upon both sides is given, which is contradictory—it is especially and appropriately a question for the jury to determine the means of knowledge and credibility of the several witnesses, and where the weight of evidence rests upon this issue.</p> <p>In an action for damages for injuries to the person, caused by negligence, the plaintiff must present a case of unmixed negligence;—a case where the injury is the result exclusively of the defendant’s negligence;—where no negligence or fault of his own contributed in any degree to producing such injury.</p> <p>In no case is it the duty of the circuit judge to submit a case to the jury, unless the evidence is so doubtful or conflicting that a verdict for the plaintiff or defendant could be sustained, and ought not to be disturbed, upon the principles governing the review, by the courts, of the verdicts of juries.</p> <p>The doctrine that the courts should not nonsuit, or set aside verdicts, as without or against evidence, in cases of negligence, because such verdicts, from the nature of the case, and the character of the facts and circumstances to be investigated, and going to establish negligence, are based so much upon mere opinion, that they cannot possibly be reviewed, wholly misconceives the theory upon which justice is administered in this country.</p> <p>It is not the jury, but the courts which administer justice. The duty and responsibility of seeing that equal and impartial justice is meted out to all men, devolves, under the constitution, by the common law, upon the judges of the courts. Juries are mere assistants of the courts, whose province it is to aid them in the decision of disputed questions of fact. If there is no real dispute in a case, the court gives judgment.</p> <p>In the judgment and opinion of a majority of men, common prudence forbids the attempt by any person to cross the track of a railroad in constant use, without first taking the precaution to looh both ways upon the track, and see and-ascertain that a train is not approaching in either direction; and the omission to do so is, per se, gross negligence, in view of the danger to be avoided, and the fatal consequences involved in any accident resulting from such omission.</p> <p>As upon the whole issue in this case, it was impossible for the jury to find that the plaintiff had made out a clear, affirmative case of negligence on the part of the defendants, unmixed with any degree of negligence on the part of the deceased, contributing to the injury sustained, it was not the duty of the circuit judge to have submitted the case to the jury, and the motion for a non-suit was properly granted. (Reversing the decision at general term supreme court, 19 How. Pr. R.} 205.)</p>

The appellant was the owner of five lots on the north side of Thirty-fifth street, between Second and Third avenues, on which were erected five brown stone houses, three stories high. The referee found the value of this property to be $34,000. On the premises were incumbrances amounting to $22,500, viz : $3,500 on each house and lot, and a $5,000 mortgage on the five.

Mandamus. The relator was one of the commissioners of excise of Cortland county.

This libel was filed by the owners of the steam-tug O. P. Smith, to recover a salvage compensation for services rendered to the schooner.

<p>Where it is apparent, by admissions in the answer, that it is sham or false, it will be stricken out as such, although verified.</p>

The prisoner in this case was indicted for passing a counterfeit coin, in the similitude and resemblance of an English sovereign, made current by the laws of the United States. He had pleaded guilty of passing the coin, but his counsel had taken exception, and called on the district attorney to bring into court the alleged base coin for inspection. This had been done.

<p>Demurrer to complaint for want of parties.</p>

These were appeals from judgments entered upon the report of á sole referee. The actions were brought to recover for labor and team-work performed by the plaintiffs, and in some cases by the plaintiffs’ assignors, on the defendants’ railroad, for sub-contractors. There was another action, brought by John.

This libel was filed by the owners of the lake boat Frank Carver, against the owners of the steam-tug Catharine, and the owners of the steam-tug Geo. Birkbeck, jr., to recover the damages occasioned to the Carver while in tow of the Catharine, by a collision with a dumber barge in tow of the Birkbeck, on the 8th of November, 1854, in the East river.

<p>The right of a defendant to offer judgment under section 385 of the Code, in an action regularly commenced against him, is not limited to cases in which he would only confess a part of the plaintiff’s claim. The offer may be for the full sum demanded in the plaintiff’s summons and complaint.</p> <p>The employment of the defendant, by the receiver, in supplementary proceedings, to make collections for him, where it appears no part of the assigned fund has been used for the benefit of the defendant, is not a sufficient ground for a removal of the receiver.</p>

<p>Where the plaintiff in his complaint averred that Henriques was insolvent on the 17th Sept. 1857, and that hy fraudulently concealing that fact from the plaintiff, and by representing to him that he was prosperous and successful in business, he led the plaintiff, on the 4th Sept., 1857, to consign to Mm $40,000 worth of segars:</p> <p>And where the evidence of the plaintiff, among other things corroborative, disclosed that Henriques wrote to the plaintiff on the 17th Sept. 1857, saying that e< business is good with me,” and thatcc though money is -very scarce, I do not suffer by it,” and asking another large shipment of segars; and in eight days after such letter he failed, leaving $80,000 of indebtedness, upon his own showing, and $250 worth of effects to meet it, having by one stroke swept away the whole of the segars consigned to him by the plaintiff to pay $51,000 of indebtedness to members of his family,</p> <p>Meld, that upon such a state of facts, the plaintiff was entitled to go to the jury upon the question whether Henriques, by concealment and a false representation of his real condition, did not procure the shipment of the 4th of September to be made to him, neither expecting nor intending to pay for the goods, but designing to appropriate them in the way he did. The question was fairly raised, and it was a question of intent, which was not for the court, but the jury.</p>

This action was brought by Benjamin Keller, administrator of Rachel Keller, to recover damages for injuries to her, and for killing her, by defendants, at Canastota, in the county of Madison, on the 29th day of August, 1854, under and in pursuance of the act of 1847, entitled “ An act requiring compensation for causing death by wrongful act, neglect or default,” as amended by chapter 256 of the Laws of 1849.

<p>An order made out of court, upon notice, must be first entered with the clerk before an appeal can be taken. (Code, § 350.)</p> <p>And when an order is required to be entered with the clerk, and a party is required to give notice of the order, he cannot give the notice until he has entered the order.</p> <p>Therefore, as regards all orders granted on notice, which are required to be entered with the clerk, the party has no right to give the written notice allowed by § 332 of the Code, until after the order has been entered.</p> <p>Where the order was entered May 27th, and the notice of appeal was served on tb.e 27th June, held, that the service of the notice of appeal was in time.</p> <p>Rule 42 does not require the party demurring to serve on the opposite party any copy of the pleadings or other papers when the question to be decided arises on demurrer.</p> <p>It is, to say the least, questionable whether any court can extend the time to appeal.</p>

Action for limited divorce. It appeared, on the trial, that the parties were married about thirty-three years ago, and have ever since resided in Otsego county. During their married life there have been misunderstandings and slight controversies, but not of a serious character, until about four or five years ago, when the defendant was guilty of cruel and inhuman treatment toward the plaintiff; he used personal violence and did her bodily harm.

<p>Motion by defendant to set aside plaintiff’s summons, and complaint, &c., for irregularity, in an action of slander, on the ground that the plaintiff was an infant, and had commenced the action in his own name, without the appointment of a guardian.</p>

<p>Where, in an action upon a promissory note, the defendant interposes the defence and proves infancy, when the note was given, the jury should be directed to find a verdict for the defendant, although some facts may have come out’on the trial tending to show that the defendant had been doing business for himself, and representing himself as of full age:</p> <p>And where, in such case, the judge omitted to give such direction to the jurj', but gave them particular instructions as to the law of the case, and they found a verdict for the plaintiff,</p> <p>Held, that the verdict should be set aside on a motion made upon the minutes of the judge, under § 264 of the Code, if the awkward phraseology of that section could be applied to the case.</p> <p>It must be assumed that a motion to set aside a verdict, and for a new trialee upon insufficient evidence,” under § 264, means a motion for a new trial on the ground that the verdict is against evidence, as was the clear and plain language under the old practice.</p> <p>A safe rule in such cases is, to apply the former practice, and interpret the obscurities and deficiencies of the Code by its light.</p>

<p>Where the aoife, after her husband’s absence for five successive years, and without her having known, during that time, that he was living, (see 3 jR. 227, 5th ed.,) married a second husband,</p> <p>Held, that the first marriage was only placed by the law in abeyance. It only temporarily suspended the rights of the first husband, unless, by his own neglect or acquiescence, he waived or abandoned them.</p> <p>The first husband, in this case, having omitted or neglected to resort to the proper remedy, by filing a bill and proceeding in the manner prescribed by the statute, to annul the voidable (second) marriage, the latter marriage continued in force after the death of the first husband, and had the same force and effect as if, when it was solemnized, the first husband was not alive.</p> <p>A deed of separation between husband and wife, which is without consideration, and consequently void, does not affect the husband’s rights in the property and business of the wife, or the debts contracted in her name; and such property passes to his assignee, in an assignment for the benefit of creditors</p>

The respondents are a benevolent society in the city of Buffalo, organized under the laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies.” The relator was a member thereof and was excluded, and he made a motion for a peremptory mandamus, compelling the respondents' to reinstate him to membership. The facts sufficiently appear in the opinion. Motion for mandamus.

The defendant was under examination as a witness, upon a subpoena duces tecum, on the part of the plaintiff, before trial, under section 391 of the Code. The witness produced, under the subpoena, a certain book, which he testified contained charges made by Way dell & Co., for cooperage on the first shipment of cigars referred to in the pleadings, and which the witness testified he had paid.

<p>Marvin, P. J.; Davis, Grover and Hoyt, Justices. Appeal from order of special term denying motion for readjustment of costs.</p>

<p>In respect to any agreement, the non-fulfillment of which will not admit of pecuniary compensation, the court will afford relief by a specific performance} although it is chiefly with regard to real property that the substitution of damages by way of redress is generally insufficient.</p> <p>Where the plaintiff, as owner of a first mortgage upon leasehold property, claimed that the defendant, who was owner of a second mortgage on the same property, had violated an agreement with him in bidding off the property at the sale thereof on the second mortgage, in the name of another person, who refused to pay certain expenses upon the property and a specified payment on the first mortgage, in pursuance of the agreement to waive the foreclosure of the first mortgage,</p> <p>Held, that if the plaintiff had sustained any injury it was in consequence of the delay in not prosecuting a foreclosure of the first mortgage. The damages caused by the delay were capable of being measured and ascertained by a jury; that if the plaintiff was entitled to any redress under the agreement, it was by an action for damages.</p>

This was an action in equity, tried at the Albany September circuit, 1860, before his honor Justice Gould. The decision was in favor of the defendant, upon which judgment was entered for the amount of his costs and disbursements. Prom this judgment the plaintiff appeals to the general term. The action was commenced by service of summons and complaint on the 2lth of July, 1858. The plaintiff was an engineer, engaged in running a locomotive on the New York Central Railroad.

<p>Demurrer to defendant’s answer.</p>

<p>The enlistment of a recruit, under eighteen years of age, in the naval service of the United States, without the consent of his parents or guardian, is not binding or obligatory, although he took an oath, when he enlisted, that he was twenty-one years of age. The oath can only be conclusive against the recruit, and not against others claiming a legal right to his services.</p>

<p>This is an appeal by the plaintiff from a judgment rendered in favor of the defendants, pursuant to the directions of Mr. Justice Gould, on the 5th day of November, 1858, for the sum of $85.06, being the amount of their costs in the action. The cause was tried before the said justice, ] without a jury, at the Rensselaer circuit, on the 16th of 1 October, 1858. The plaintiff was a banking corporation 1 in the city of Troy, and was assessed, in the year 1855, the sum of $187,873 upon its capital stock, as the personal property of said bank. The assessment roll containing this assessment was duly returned to the board of supervisors of the county of Rensselaer. At the annual meeting of said board, in 1855, and within two days of the commencement of their session, the bank presented to said board a petition, asking exemptioh from taxation under chap. 654 of the Session Laws of 1855, accompanying the petition with an affidavit that the plaintiff had not been, during the preceding year, in the receipt of net annual profits or clear income equal to five per cent, of the capital stock of said bank, paid in, or secured to be paid in, nor of any.net profits or clear income at all.</p> <p>The act of the legislature above referred to, provides that if any incorporated company named in the assessment roll should, through its proper officer, show to the satisfaction of the board of supervisors, at their annual meeting, within two days of its commencement, by the affidavit of such officer; that the company has not been, during the preceding year, in the receipt of net annual profits or clear income equal to five per cent, of its capital stock paid in, or secured to be paid in, after deducting from the amount of their capital stock the assessed value of their real estate, such company shall be entitled to commute for their taxes on such capital stock, by paying directly to the treasurer of the county, a sum equal to five per cent, on such net annual profits or clear income, and also the amount of the taxes on their real estate.</p> <p>The board of supervisors referred said petition and affidavit to a committee, who reported in favor of exempting the plaintiff from taxation on personal property, pursuant to their petition; and the board subsequently resolved that the committee having charge of this subject, be authorized to expunge the assessment of The Manufacturers’ Bank from said assessment roll. It was accordingly done. No tax was extended by the board opposite to said assessment, nor otherwise laid upon the capital stock. The real estate of the bank was duly assessed, and the tax thereon paid to the chamberlain.</p> <p>The defendants proved the various acts of the legislature, having reference to the levy and collection of taxes in the city of Troy, and that under and in the manner required by said acts, the defendants, on the 4th of October, 1855, imposed a city tax for that year, to the amount of $2,250.61 on the capital stock of the plaintiff, and after-wards issued their warrant for the collection thereof, .in the usual form. Under this warrant a levy was made under the direction of the defendants, by an officer, who seized and took of the plaintiff’s property a sum sufficient to pay said tax, and the expenses of collection, and the proceeds thereof were paid to the chamberlain of the city. For the amount thus levied and collected, the plaintiff instituted this suit. The plaintiff contended that proof of the foregoing facts entitled it to exemption from the payment of the city as well as the county and state taxes. The defendants insisted upon the contrary, and having duly objected to the proof introduced as to the action of the board of supervisors upon the petition and affidavit of the plaintiff, as irrelevant and immaterial, moved to strike out such proof. The justice granted the motion, and the plaintiff excepted. The justice then decided that the defendant was entitled to judgment, and to this the plaintiff excepted. Judgment having been rendered accordingly, the plaintiff appealed to the general term.</p>

This was an application on behalf of the plaintiffs, for an inspection of the books and papers of the defendants’ assignors, in the possession of the defendants.

<p>Where the husband purchased lumber for the building of a house on real estate which he falsely represented belonged to him, and on the credit of owning such property, when in fact the real estate at that time, and the house afterwards erected upon it with such lumber, belonged to his wife, and the house was built with her knowledge and approbation,-—</p> <p>Held, in an action in equity by the plaintiff against the husband and wife for the price of such lumber, that the facts thus established created an equitable lien in favor of the plaintiff upon the real estate, and it was thus decreed.</p>

This was an action to compel the bank to allow the transfer of one hundred shares of their stock standing in the name of Robert Middlebrook, deceased, to his son, Louis N. Middlebrook, the plaintiff. The facts were as follows : The deceased was a resident of Trumbull, in the probate district of Bridgeport, Connecticut, and died in May, 1861.

The plaintiff brought Ms action against the defendant for an infringement of Ms well known trade mark, “Jules Jurgensen,” engraved on the cap or inside back of each, of his own genuine watches. The action was tried before the court without a jury, who, after hearing the proofs and allegations of the parties, found the following facts and conclusions of law thereon.

<p>Where on an indictment for misdemeanor, it appears that the offence consists of a series of acts, and a part of the series is a complete misdemeanor, there can be no merger in a felony, and the conviction for a misdemeanor will be sustained, although the evidence may show' the commission of an act of felony.</p> <p>But where, on such indictment, the act which is the gist of the indictment is a single act, and the evidence shows the commission of a felony, the misdemeanor may be merged in the felony.</p>

<p>Whore consignments of lumber are made by the consignor to the consignee under a contract between them that the consignee is to sell the same on commission, at eight per cent., which is to include a premium for guaranty of soles, and to account for the net proceeds, after deducting charges and commissions, the consignee acts in a fiduciary capacity, and is liable to arrest for not paying over the proceeds received from purchasers.</p> <p>It seems, that where the purchaser does not pay, and the consignor or owner of the lumber sues the consignee for the price upon the contract of guaranty, the latter is to be considered as a mere debtor, and not liable to arrest.</p>

<p>On an indictment for keeping a disorderly house, the character of the house cannot he proved hy general reputation.</p> <p>No one should he convicted of any criminal offence upon mere reputation or rumors.</p>

<p>The statute (Laws 1862, p. 476) declares that<e it shall not be lawful to sell or furnish any wine, beer strong or spirituous liquors to any person in the auditorium or lobbies of such place of exhibition or performance mentioned in the first section of this act." ,</p> <p>Reid, that where the warrant charged the defendant with having sold lager beer, instead of c< beer," it did not charge an offence on its face.</p>

The plaintiff claims the title to a large amount of personal property sold to him by Garner & Co., who held as mortgagees thereof in possession, or by transfer from Seaman & Muir, the former owners, and also the mortgagors, voluntarily made in consideration of an antecedent debt due to, and liabilities previously incurred by Garner & Co. for Seaman & Muir. The mortgage covered the whole stock of the debtors.

<p>Demurrer to complaint.</p>

The defendant entered into an agreement in writing, under seal, with William W. Horton, bearing date the 13th -day of December, 1855, by which the latter bound himself •to build a saw-mill for the defendant on his lands, in the town of Roseboom, in a manner therein specified, and furnish all the materials therefor, and complete and have it ready “ for running, in a good workmanlike manner, by the 25th of August, 1856.” The defendant was to pay Horton .$600 for building the…

The defendants in this action were Hiram Hyde, James C. Cogswell, and The American Telegraph Company. The complaint set forth an agreement between Hyde and D. H. Craig, wherennder Hyde subscribed for 330 shares of the capital stock of the telegraph company, 210 of which were to belong to Craig, and the remaining 120 shares to Hyde.

This cause was tried January 31, 1862, and a verdict rendered for the plaintiff. On the 8 th of March, a judgment was entered for $1,377.24, from which an appeal was immediately taken by the defendants to the general term. Subsequently, the plaintiff it is alleged, with the view of defrauding his attorney out of his fees for services, assigned the judgment to one William Cutler, without the knowledge of his attorney.

<p>An appeal lies from an order overruling a demurrer to one of several alleged defences, with liberty to reply to that part of the answer demurred to.</p> <p>Where the complaint alleged a cause of action on contract for goods, wares, and merchandise sold and delivered; for work, labor and services done and performed, and for money paid, laid out and expended, as one cause of action; and for an accounting and a balance due the plaintiff, and a promise to pay, as a second cause of action, and the defendant put in first a general denial; second, a set-off or counter-claim for goods sold and delivered, money paid, laid out and expended, &o., and for a general balance on account; and third, a multifarious defence of a legal and equitable character,to which last defence the plaintiff demurred, Held9 that if the last defence, although containing a set-off, and matter of purely an equitable nature, and therefore multifarious, contained allegations of fact sufficient to make out a proper case for a set-ojf9 it must be held good as a counter-claim9 notwithstanding it might also contain other statements of no value as a defence—no objection having been taken on that ground—the remedy being by motion to strike out, not by demurrer.</p> <p>Held, also, that should the third defence contain no sufficient ground for a set-off, but matter for equitable relief only, having no connection with the subject of plaintiff’s action, the demurrer would be well interposed, although the latter defence was pleaded as a counter-claim.</p> <p>A counter~claim9 to be available to a party, must afford to him protection in some way against the plaintiff’s demand for judgment, either in whole or in part. It must, therefore, consist in a set-off or a claim, by way of recoupment, or be in some way connected with the subject of the action stated in the complaint; and an answer which does not meet these requirements is insufficient.</p>

This was an action to recover damages against the' city by reason of certain obstructions in the channel of the Harlem river, between Manhattan Island and Ward’s Island, whereby the plaintiffs claim their steamboat was wrecked and lost. The cause was tried before Mr. Justice Hogeboom and a jury, on the 3d day of October, 1861. The case shows that after the plaintiffs rested, “ the defendants moved to dismiss the complaint.

<p>Appeal from an order of special term granting extra allowance of costs. The facts appear fully in the opinion.</p>

<p>Where a monthly tenant occupies rooms of a landlord, with an agreement to pay rent in advance, and leaves the premises the latter part of the month* he is not liable for the rent of the subsequent month, which has not become due.</p> <p>Where it appeared that the filth from a privy, either on or adjoining the premises, flowed over the apartments occupied by the tenant, without any fault on his part, and rendered them unfit to occupy, the tenant was justified in abandoning them under the provisions of the f c act in relation to the rights and liabilities of owners and lessors, and of lessees and occupants of buildings,55 passed April 13, 1860.</p> <p>The injury to the premises contemplated by this act, to authorize a surrender of possession, must be of a physical nature, such as if done by the landlord would amount to an eviction of the tenant from the whole or part of the demised premises.</p> <p>The occupant of apartments in a tenement house, is not bound either to see to the erection of a proper sink or privy upon the premises, or to cause it to be emptied to prevent an overflow. This is a matter which the landlord is required to look after and prevent, or else to stand to the consequences.</p>

The plaintiff in error was indicted for unlawfully, willfully, maliciously and mischievously driving the horses attached to a freight car, on. the Fourth avenue railroad, against another railroad car then and there being, then and there injuring the last mentioned car, he so intending, &c. The prisoner was convicted.

<p>Misjoinder of parties plaintiffs is ground of demurrer to the complaint.</p> <p>In such case the complaint does not state facts sufficient to constitute a causo of action.</p> <p>In an action to obtain construction of a will, the complaint should state that the testator left property, and also whether real or personal or both.</p> <p>If there be no trust declared or raised by the will, and the legatees and devisees take absolutely, they must vindicate their rights by an action or actions at law —not by an action in equity for its construction.</p> <p>A person who is not executor nor in any sense a trustee is nob entitled to ask instruction or advice from the court.</p> <p>In case a trust be declared by will, and questions of doubt arise as to its true meaning, any person having an interest in the property held in trust may apply by action to have the will construed or its validity determined.</p>

An order had been obtained to vacate the proceedings in this case, on the ground that the summons had been filed without an adhesive stamp, as required by the United States Internal Revenue Act, approved July 1, 1862. Edmon Blankman, defendant’s counsel, contended that the provisions of the statute rendered all original proceedings invalid and of no effect unless stamped.

This action was commenced on the 29th of January, 1858, to recover of the defendants $9,000, and interest from the 10th day of May, 1855, for an alleged over-payment to the defendants as owners and mortgagees of the lots Nos. 158, 164 and 166 Centre street, upon the proceedings for the extension of Canal street and the widening of Walker street.

This case is a creditors’ suit, brought against the judgment debtor, Anthony Yorks, with his son Theodore D. Yorks, his brother-in-law Zimri Cook, and others, and the charge is fraud in the transfer of the property of the judgment debtor to the other defendants. The action was commenced in November, 1861, and an injunction order was granted on the 2 2d day of that month, by George Hastings, county judge of Livingston county, in which county the action was brought.

<p>In a complaint for slander, where the words charged were, Cf nothing ails him but the pox; he is rotten with it, he got it,’3 <fce., held that the words are actionable per se.</p> <p>If the allegations of special damage by reason of the words spoken are not sufficiently specific, the objection cannot be raised by demurrer; the remedy is by motion under the Code, (§ 160.)</p>

<p>The complaint set forth three separate causes of action: 1st. A note payable to E. L. B., or bearer, made by defendant and assigned to Plaintiff.</p> <p>2d. A note payable to J. W. H., or bearer, made by defendant and assigned to plaintiff.</p> <p>The plaintiff stated, on his information and belief, that the defendant executed these notes, &c.</p> <p>The 3d count was for goods sold and delivered by plaintiff to the defendant, upon the information and belief of plaintiff, on which the plaintiff claimed a balance.-</p> <p>The defendant moved to strike out the .words, “ information and belief,” wherever they occurred; also to make the complaint more certain by stating the time when the notes were assigned, and the time of the sale of the goods, and the kind of goods, with costs of motion.</p>

In May, 1860, an action for a strict foreclosure was brought by James Wood, in which action the plaintiff was joined as defendant. The plaintiff and his then co-partner, Peter McLaughlin, held a mortgage subsequent to the one in suit and upon the same premises. They were therefore made parties defendants, with the usual allegations that no personal claim is made against these defendants.

Motion by defendant for an extra allowance of costs, under section 309 of the Code. The facts sufficiently appear in the opinion of the court.

<p>A law which makes an act punishable in a manner in which it was not punishable when committed) or which increases the punishment with which the act was punishable when committed, is ex post facto and void.</p> <p>The plaintiff in error was convicted of arson in thejirst degree) committed in 1857, which, under the Revised Statutes, was punishable with death) and was sentenced under the act of 1860, which substituted imprisonment for life for the punishment of death, to imprisonment in the state prison for life.</p> <p>Held) that the provisions of the act of 1860, changing the punishment of arson in the first degree, were intended to apply only to offences thereafter committed; but if it should be held otherwise, then that those provisions are ex post facto and void) so far as they were intended to apply to a crime of arson in the first degree, committed before the passage of the act. In either view of the act and upon either holding, the judgment of the court below must be reversed.</p> <p>Where a judgment against a prisoner is reversed upon the ground alone that a wrong judgment was given3 upon a lawful and regular trial and conviction, he cannot constitutionally be tried again: he must be discharged.</p> <p>(This law would seem to fully meet andsettleMrs. Hartung's case; for although there was no bill of exceptions in this case, and there was one in her case) yet the judgments in both cases were reversed on the ground alone that there was a wrong judgment given. It is difficult to see how the court canloohinto a bill of exceptions when there is a wrong judgment brought'up by the record, and the error being created by a statutory law.—Rep.)</p>

<p>Appeal from order of special term that defendants recover their costs and disbursements, as in an ordinary action in that court.</p>

Motion made on an order that the plaintiff show cause why he should not pay to Henry C. Adams, the attorney and counsel for the defendant in this action: 1st. The amount of the defendant’s taxed bill of costs and disbursements, as,the same were entered in the judgment in this action, together with the interest thereon from the date of the judgment, (July 24,1862.) 2d. The amount justly due to said Adams for his general services and disbursements rendered by him for his…

<p>Appeal from an order at special term vacating and discharging an order of arrest. The facts will appear in the opinions of the court.</p>

The parties were this day heard on the matter of the alleged contempt of the defendant, in not paying into court the sum of money which he was so ordered to pay hy the judgment or an order made in this action, on the 12th of December, 1859.

The receiver of the ¿Etna Insurance Company, after personal demand of payment of notes made to said company, and refusal to pay the same, applied to Mr. Justice ■Campbell under the act entitled “An act to facilitate the closing up of insolvent and dissolved Mutual Insurance Companies,” passed April 21, 1862, to appoint a referee to hear the proofs and allegations of the parties.

This action is brought by the receiver of the Island City Bank against the defendant, who was president and director, to recover from him certain moneys for wrongful acts charged against him. The defendant answered to the complaint, denying all the allegations made against him. The case was referred and the referee has dismissed the complaint as insufficient and containing no cause of action.

Frederick F. Betts & Co., on the 24th day of August, 1861, obtained an order or contract from the United States government for the manufacture and d elivery to the government of five thousand sets of military equipments.

<p>The public keeping of intoxicating liquors on Sunday is not a misdemeanor under the police act of 1860.</p>

<p>Writ of error to the supreme court, by the plaintiff in error, to bring up a conviction for bigamy.</p>

<p>Appeal from a judgment at special term. . The facts will appear in the opinion of the court.</p>

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

In the year 1853, as appeared in this case, George E. Howell, of this city, as agent for his wife, insured his life for her benefit and the benefit of his children in the Knickerbocker Life Insurance Company, of this city, in the sum of $5,000. The premiums were paid regularly and punctually, as claimed from that time until 1861.

<p>Appeal from an order allowing a trial fee upon an application for judgment, under ^ 247 of the Code, upon the ground that the demurrer-to the complaint was frivolous.</p>

This was an appeal by Charles Brower from an order appointing- a receiver in supplementary proceedings in above action, on the ground that, as a judgment creditor having supplementary proceedings pending, he was entitled to eight days’ notice of an application for a receiver, by another creditor, and that a less notice wTas insufficient.

The action was tried by the court at the Genesee November circuit, 1862, and decision of the court was in favor of the plaintiff for $196. The hill of costs, containing charges for term and trial fees, amounting to $70, was presented to the clerk for adjustment. These items were rejected and $20 substituted. The action was upon a premium note given for a policy of insurance.

.The plaintiff seeks by this action to compel the specific performance of a contract dated 24th September, 1860, whereby the defendant agreed to convey to him, on the ninth day of October following, two parcels of land in New Jer-, soy, subject to a mortgage described in the contract, in consideration of receiving from him on that day the stock of goods and fixtures of a certain store in Brooklyn, then kept and occupied by the plaintiff, with the horse, harness, and grocer’s…

<p>Where an execution has been duly issued and duly returned by the sheriff unsatisfied in whole or in part, and the plaintiff has in no wise interfered, he may safely act upon the return of the sheriff, to institute proceedings supplementary to execution. And the question whether there was property which the sheriff ought to have taken and sold for the purpose of satisfying the judgment in whole or in part, cawnot 6e raised.</p>

<p>Where the plaintiff has the right to take the persons of all the defendants in satisfaction of his judgment, it carries with it the right to proceed against the 6ail of one of them, as to whom there may be a return of non est inventus.</p>

Bosworth, Ch. J., Moncrief and Robertson, Justices. Appeal from judgment at special term. The facts will sufficiently appear in the opinion of the court.

Action on bond to appear on adjournment of examination before two justices, on charge of bastardy. The following facts were proved upon the trial: The warrant was issued on a proper complaint by William H. Doty, a justice of the peace of the town of Wayne, in said county, and the defendant was arrested and brought before the said justice, who thereupon called to his aid and associated with himself Levi Knox, another justice of the same town.

Motion by defendant to remove cause to circuit court of the United States for the northern district of New York, upon the ground that the plaintiffs are citizens of the state of New York, and the defendant is a corporation created by the laws of Connecticut, and located and doing business in that state.

These actions were brought to recover for professional services. In the first case the plaintiffs sued as surviving partners of Edward Sandford, for services in his lifetime, and for their own services after his death in September, 1854, and up to January, 1856. The second suit was brought by one of the partners for services from January, 1856, when he became the sole attorney for the defendant, to the summer of 1858.