Volume 24 — Jones & Spencer's New York Superior Court Reports

<p> Charter party—construction of—Demurmge. </p> <p>Where the charter party contains a provision: “ Twenty-five running clays are to be allowed the said merchants (if the ship be not sooner dispatched), for loading the vessel at port of loading, and for the discharge with the usual quick dispatch.”</p> <p>In an action brought by the owners for demurrage, Held that the charter party does not allow twenty-five days for discharging m addition to the same time for loading, but that.the vessel must be discharged with such quick dispatch as is usual under similar circumstances in port of discharge.</p>

<p>Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, at trial term, and from order denying motion for new trial made on the minutes, etc.</p> <p>The action was brought to recover $20,000 damages for personal injuries alleged to have been sustained through the negligence of the defendant.</p> <p>The plaintiff, an infant, under five years of age, while crossing University Place in March, 1884, between five and six o’clock in the evening, was run over and seriously injured by one of defendant’s horse cars. The jury found a verdict in her favor of $5,500. The learned trial judge left the question of the negligence of the defendant’s servants to the jury. As to the question of negligence on the part of the plaintiff, he held that if she had been sui juris, her negligence, as proved would have prevented her recovery, but that she, not being sui juris, by reason of her infancy, the question arose whether the negligence of her mother, under whose charge and control she was, constituted contributory negligence, and that question the trial judge left to the jury, as matter of fact. The defendant’s counsel moved for dismissal of the complaint; requested that the trial judge should direct a verdict for the defendant; moved for a new trial, and duly took exceptions to the rulings against him, and has appealed therefrom and from the judgment.</p>

<p> Equitable action—as to changing after trial into an action at law and thereupon rendering judgment as if the action were one at law—Judgment so rendered, when not sustainable.—Exception to denial of general motion to dismiss made at the close of all the evidence, raises these questions on appeal.—Demand of jury not' necessary.—Action for money had and received is an action at law.—To such an action when brought to recover back money voluntarily paid by mistake, notification of the mistake and demand of payment are prerequisite. </p> <p>An equitable action based on allegations of fraud, deceit, deceitful influence, collusion, conspiracy and misleading, and praying for an account-, ing and payment to plaintiff of whatever might be found due, cannot after its trial at special term as an equity action, he changed into an action at law.</p> <p>A judgment in such an action as in an action at law, dependent on facts not alleged in the complaint, and as to which no issue was raised, no finding made, and no trial had, cannot be sustained.</p> <p>These points may be raised on appeal under an exception to the denial of a general motion to dismiss made at the close of all the testimony. It is not necessary that the motion should be stated to be made on these grounds. Nor is it necessary that defendant should demand a jury.</p> <p>An action for money had and received to and for the use of the plaintiff, is an action at law on contract triable before a jury.</p> <p>Where money is voluntarily paid by mistake, a notification of the mistake and a demand of payment back are prerequisite to an action for money had and received to recover it.</p>

The referee in rendering his decision delivered the following opinion, which sufficiently sets forth the facts of the case :—

Appeal by both parties from the judgment herein. The action was tried before a referee. The complaint contained two causes of action. The referee dismissed the complaint as to the first cause of action and as to the second cause of action directed a judgment against the defendant for damages, and for injunctive relief. Judgment was entered in conformity with the report.

<p> Disci'alionarij power of sale—when cannot be executed by single executor. </p> <p>A will contained the following clause: “I hereby authorize my said executors to sell all or any part of my real or personal estate at any time in their joint discretion—that is to say, one is not authorized to sell or exchange without the consent and co-operation of the other—and to give valid deed to the purchaser.” One of said executors renounced his right to letters testamentary.</p> <p>Ilehl, that the remaining executor, who qualified, could not execute the above power, solely, notwithstanding the provisions of § 2642, Code Civ. Proc.</p>

Appeal by Charles Forbes, a surety, from an order directing the application of moneys deposited with the clerk of the court, to the payment of defendant Wilder’s costs. The facts appeared in the opinion.

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

Action of ejectment, commenced October 19, 1883. The facts sufficiently appear in the opinion. Held: that such adverse possession did not exist, chiefly becaus'e the owner of the fee had not, during the running of these leases, the right to immediate possession, and could not have succeeded in action of ejectment against said Matsell, senior. “At the recent trial before me without a jury, the defendants changed their plan of…

<p>Award for lands taken, recovery of with interest from party for zvhose benefit the land was taken, although such party had deposited the money pursuant to an order of the court.</p> <p>Where in proceedings instituted by a railroad company (the defendant in this action, formerly known by the name of the G.lbert Elevated Railroad Company) for the condemnation and acquisition of lands, under the general railroad act (Laws of 1850, chap. 140) as amended by Laws of 1876, Chap. 198, the commissioners awarded the damages for one parcel to unknown owner, and for another parcel to A. R. E. (the plaintiff herein), as owner or person interested, against the objection of A. R. E., who insisted that the awards should be made to him „ specifically, and so reported; and thereafter the supreme court at general term after hearing counsel for A. R. E. in opposition by its order bearing date December 16,1879, confirmed the report of the commissioners, and ordered that the company deposit the amount of the awards in the Shoe and Leather Bank, and that on making such deposit it should be entitled to enter upon the possession of, and use for the purposes of its incorporation, during its corporate existence, the lands in respect whereof the awards were made; the company had theretofore entered into possession of the premises; and thereafter it deposited in the Shoe and Leather Bank the amount of the awards to an account known and designated as unknown parties to be hereafter designated by the court “in the matter of the Gilbert Elevated Railroad Company” and thereafter the general term of the supreme court on appeal made an order bearing date June 8, 1886, whereby it modified the report of the commissioners, so that said damages so awarded as aforesaid should be awarded to be paid to A. R. E., and confirmed the report as so modified ; and further ordered that the sums of money theretofore deposited in respect of such awards in the Shoe and Leather Bank pursuant to said order of December 16, 1879, together with any accumulation of interest thereon, if any, growing out of such deposit, be paid by said bank to such A. R. E., and thereafter the company making no new deposit under the order of June 8, 1886, and doing nothing towards paying the awards to A. R. E. and not procuring the two general term orders to be recorded in the office of the county clerk in the books there kept for the records of orders in condemnation proceedings, A. R. E. procured such orders to be so recorded, and then demanded of the company payment of the amounts so awarded with interest thereon from December 16, 1879, which being refused, A. R. E. brought action therefor against the company.</p> <p>Held, That plaintiff was entitled to recover the said sums awarded with interest thereon from December 16, 1879.</p>

Appeal by purchaser from order directing him to complete purchase made by him, at a sale under the judg- . ment in the action. The action was for the foreclosure of a mortgage.

<p>Jurisdiction of action by non-residents against foreign corporation, on causes of action arising without the state. An action under Lord Campbell's act for a death, is an action in tort, and if the death and the injuries causing it occur without the state no court of this state has jurisdiction of an action therefor by a non-resident against a foreign corporation—Letters of administration issued in this state do not invest one, in fact a non-resident, with the character of a resident—Such want of jurisdiction is not waived by not being relied on in the answer—It may be raised on motion at any stage of the action—The granting of the motion does not violate § 2, Article 4, of the Constitution of the United States.</p> <p>No court of the state of New York has jurisdiction over an action for damages brought by a non-resident thereof against a foreign corporation upon a cause of action arising without the state.</p> <p>A cause of action to recover damages for the death, on an English vessel owned by an English corporation, on the high seas,, of a passenger being carried on- such vessel under a contract of carriage, which death was caused by the colliding on the high seas of that vessel with another, is not a cause of action for damages for a breach of contract to carry safely, but is an action in tort under Lord Campbell’s act, and arises out of the state of New York. No court of this state has jurisdiction over an action brought by a non-resident thereof on such a cause of action against such corporation—The transitory nature of the cause of action does not give such jurisdiction.</p> <p>Letters of administration issued by a surrogate of this state to a non-resident thereof, does not invest such non-resident with the character of a resident of the state for the purposes of an action against a foreign corporation. Notwithstanding the issue of such letters he still remains a non-resident.</p> <p>A waiver of such a want of jurisdiction does not flow from the fact that the defense is not set up in the answer.</p> <p>Such want of jurisdiction may be brought to the attention of the court at any time on motion, e. <7., by a motion at special term to set aside the summons and to dismiss the complaint for such want, even after issue joined by an answer not setting up such defense. And the court may then by granting the motion declare to the parties that for that reason no further proceedings should betaken.</p> <p>The granting of such a motion does not violate section 2, article 4, of the Constitution of the United States.</p>

<p>Corporations de facto—power to take and convey real estate—effect of omission of seal on certificate made under 2 B. S., 7th ed., p. 1654.— Estoppel.</p> <p>The absence pf seals from the record under 2 B. S., 7th ed., p. 1654, of the certificate of incorporation of a church (the original certificate being lost, and there being no evidence whether or not seals were affixed to the original), does not so far invalidate the organization of the church as a corporation as to prevent it, as such corporation, from passing title to real estate, the organization of the church being in all other respects regular, the purchase of the real estate having been for church purposes, and the sale made in pursuance of an order of court allowing it.</p> <p>Under such circumstances, the church is a corporation de facto at the least capable of taking real estate and conveying with the permission of the court.</p> <p>The grantor, of such church, having received the consideration of the deed from his grantee as a corporation, would be estopped from asserting that it was not a corporation.</p>

<p> Vicious Animals—right to keep when properly restrained.—Volenti non fit injuria. </p> <p>Defendants were owners of a dog, which tq their knowledge was savage and prone to bite human beings, and which was kept by them chained. Plaintiff, at the suggestion of a fellow servant, and with the view of making the dog familiar with him by feeding the dog, voluntarily, and with knowledge of his propensities, went within his reach and was by him severely bitten.</p> <p>Held, (1) That the keeping of . the dog was not unlawful, he being properly restrained so that persons pursuing their ordinary or lawful avocations, were not exposed to danger.</p> <p>(2) That the suggestion of the fellow servant did not enlarge the responsibilities of defendants, there being no proof that the suggestion was within the scope of his employment, or was prompted or authorized by defendants.</p> <p>(3) That in either event, the plaintiff could not recover, the maxim volenti non jit injuria, being applicable.</p>

<p>This case comes before the court (1) on a motion made by the plaintiff to dismiss defendant’s appeal from the judgment, on the ground that at the time of the service of the notice of appeal the defendant’s time to appeal from the judgment had expired, and (-2) on plaintiff’s appeal from an order staying all proceedings to enforce the judgment until after the determination o.f defendant’s appeal which was from the judgment, and an order denying defendant’s motion for a new trial.</p> <p>The plaintiff’s right to have defendant’s appeal from the judgment dismissed on the ground that it was not taken in time, depends upon the sufficiency of the notice of entry of judgment which was served.</p> <p>Section 1351 of the Code of Civil Procedure prescribes that an appeal to the general term must be taken within thirty days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof.</p> <p>The issues having been tried at a jury term and a verdict having been rendered for the plaintiff, the appropriate judgment thereon was entered March 24, 1888, and on the same day a copy of such judgment was duly served on defendant’s attorney personally. The copy judgment so served filled one side of a sheet of white paper, and securely attached to the back of such sheet was another sheet of colored paper of the same size. The outside of the colored sheet contained at the top thereof the following notice, viz.: u Take notice, that the within is a copy of a judgment this day duly made in this action and entered in the office of the clerk of this court. New York, March 24, 1888. Yours, &c., Ira D. Warren, Plaintiff’s Attorney.</p> <p>“ To E. Luther Hamilton, Esq., Defendant’s Attorney.” And as folded up and served with the copy of the j udgment, the colored sheet further contained on its outside and in a plain and conspicuous manner the following indorsement, viz.: New York Superior Court.—Richard Y. Harnett against Robert E. Westcott, as President of Westcott’s Express Company.—Copy Judgment and Notice of Entry.—Ira D. Warren, Attorney for plaintiff, No. 170 Broadway, N. Y. City, N. Y.” Under precisely the same indorsement contained on a duplicate copy, the defendant’s attorney gave the following admission, viz. : “ Due and timely service of a copy of the within Judgment is hereby admitted. Dated New York, Mch. 24, 1888. E. Luther Hamilton, Attorney for Deft.”</p>

Appeal by plaintiffs from so much of the judgment as dismisses the complaint as to one defendant. Motion by defendant to dismiss appeal. The facts appear in the opinion.

<p> Negligence—evidence of custom. </p> <p>In an action brought by plaintiff who was employed by a stevedore engaged in unloading coal from one of defendants’ boats, for injuries alleged to have been sustained by plaintiff through the negligence of defendants, in the management of the derrick used in unloading said cargo of coal.</p> <p>Held, though it appeared that the stevedore was employed by defendants as such stevedore, to unload said coal, and the derrick and its appurtenances used for that purpose, belonged to said stevedore, yet it was competent for plaintiff to show that the unloading was to proceed according to a certain custom, and that it was part of the custom for the captain of the boat, or some one specially designated by him for that purpose, in the interest of the boat to attend to the guy rope and to direct the movements of the boy who managed the hoist horse.</p>

<p>Verdict for plaintiff, subject to opinion of general term.</p> <p>Action in ejectment, for the recovery of certain lots of land, formerly a part of Harlem commons.</p> <p>A verdict for the plaintiff was rendered by instructions from the court, and an order was subsequently made under stipulation of counsel that the verdict should be set aside, and that a verdict should be entered for the plaintiff, subject to the opinion of the general term, that Elizabeth B. Andrews, an infant, is the owner of the real estate described in the amended complaint, and that the plaintiff,, as guardian, is entitled to the benefit of said real estate.</p> <p>The facts appear in the opinion.</p>

Appeal by plaintiff from judgment dismissing complaint, upon the merits entered upon order made at the trial before the jury. The facts appear in the opinion.

Appeal by defendant John H. Starin from an order adjudging him guilty of contempt of court. The facts appear in the opinion.

(See report of this case on appeal from judgment entered on order overruling demurrer, 54 Super.

<p> Personal injuries sustained through negligence, Damages for same. </p> <p>The work assigned by defendants to plaintiff, was the uncoupling of cars while they were slowly moving upon the rails. At the time the injury was sustained, he was proceeding to uncouple cars, in such manner as he had been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the rails, which caused his body to fall until his left arm was caught between the bumpers of the cars, and as thus caught, he moved or was moved some distance beyond this hole, while the cars were moving, and the injury was sustained, resulting in the loss of the arm of plaintiff.</p> <p>The negligence of defendants in the premises was predicated and claimed on the ground, that it was their duty to keep the place where the hole was, in such state and condition that the plaintiff in the course of the work and duty assigned to him, would not fall therein.</p> <p>Held, that it was the duty of the defendants to have a covering over the hole or pit, that would protect the servant who was working above the same. At the least it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering over this hole or pit. It was not a risk of the plaintiff’s employment, which he took upon himself when he chose to enter the employment of the defendants. The plaintiff had no reason to believe that the track was not safe at all times when he was called to step upon it in the performance of his work, or that there was any risk or danger to him in doing so. Whether the plaintiff was guilty of contributory negligence, was a question for the determination of the jury.</p>

Appeal by defendant from judgment entered on verdiet c>f a jury and from order denying motion for new trial,'made upon the minutes.

<p>Appeal from final order denying application for mandamus.</p>

The facts in the case appear in the opinion of the referee, appointed under the interlocutory judgment, and in the opinion of the court on the appeal.

<p> Evidence—Res gestae—Baggage Express Company. </p> <p>Statements of the president of the company on a demand for a trunk, the railroad check for which had been given to an agent of the express company in order to enable the agent to procure it for transportation by the company, which agent gave the usual receipt for it to the effect that the trunk' had been received by the company, are admissible against the company on objection to any statements made by one on whom a demand is authorized to be made, which demand is required to be made by law, is too broad.</p> <p>Plaintiff gave to the agent of the defendant a baggage check for a trunk and received the usual receipt therefor. The trunk not being delivered, the plaintiff demanded the trunk or the check from the president of the company at the office of the company. Objection was taken to the reception in evidence of any declarations or statements made by the president at the time of such demand, upon the ground, that being made after the loss, they were inadmissible and irrelevant, to bind the defendant, and were hearsay. The objection having been overruled, Held, that this ruling was right, and that it was not error to receive this evidence.</p> <p>In any view of the case, the objection was certainly too broad and general, for if it had been sustained as made, it would have prevented the witness from testifying that the defendant refused to comply with the demand.</p>

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

The action was brought by plaintiff to compel specific performance by defendant of a contract to purchase real property in New York. The issues in the action were upon the title of the plaintiff to the land in question.

<p> Demurrer. </p> <p>A demurrer by defendants to the complaint on the ground that the court lias not jurisdiction of the subject of the action, does not concede that the complaint does state facts sufficient to constitute a cause of action, especially is this so, when by the same demurrer, the defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer to the complaint should not be overruled, because it may appear on the face of the complaint that a cause of action is stated therein, against one of the defendants who does not demur. It is not enough that the complaint states a cause of action against one of the defendants who does not demur, in order to sustain it against a defendant who does demur. The test is, does the complaint state a cause of action against the defendant who demurs ? If it does not the demurrer must be sustained.</p> <p>It appears from the complaint that the defendant, The New York Iron Mine, is a corporation organized under the laws of the state of Michigan, and the plaintiff alleges in his complaint certain facts which he claims entitle him to relief against the defendant, The New York Iron Mine ; and the relief that he claims is, that it be decreed that this defendant shall declare and pay such dividends as upon an accounting may appear proper, etc. The case of Fisher v. The Charter Oak Life Ins. Co., 52 Super. Ot. 179, is a conclusive authority in favor of this demurrer, and it must be sustained. It was there held that the courts of this state will not interfere with the internal administration of the affairs of a foreign corporation; that the law does not give any remedy here for the things complained of, and therefore that the court has no jurisdiction of the subject of the action.</p> <p>As it does not appear on the face of the complaint that the defendant, The York Mining Company, is a foreign corporation, the demurrer of that company that the court has not jurisdiction of the subject of the action is overruled, and for the same reason that portion of the demurrer of the defendants, Tilden’s executors, is also overruled, but the demurrer of the last named defendants that the complaint does not state facts sufficient to constitute a cause of action is sustained.</p>

<p> Reference of issues —Attorney and client. </p> <p>The issues in an action brought by an attorney to recover for the value of services rendered will be referred to hear and determine only when it appears that in consequence of the nature of the demand and of the proofs required to sustain it, it would be impracticable to try the case with a jury.</p> <p>Where in such an action the bill of particulars discloses that the demand is mainly for services rendered on divers different days in four suits or proceedings, and that the amount of the disbursements is inconsiderable, a reference of the issues will not be ordered.</p>

This action is brought to recover $1,000, balance of $2,500, given to defendant by plaintiff while an infant for investment in certain classes of securities under an agreement dated September 24, 1885.

<p>Appeal from a judgment dismissing the complaint upon the merits with costs, and also from an order denying a motion for a new trial upon the judge’s minutes.</p> <p>The action was tried before the court and jury.</p> <p>The Stanton Street Baptist Church desiring to move its location, sold its property in Stanton street, and with the proceeds of the sale purchased some lots in Twenty-third street. For the purpose of erecting a church edifice on the Twenty-third street lots a subscription was started. The subscription paper was as follows :</p> <p>“ We, the undersigned, hereby agree to pay on May 1, 1882, or sooner, at our option the sums severally set to our names towards a church edifice fund of fifty thousand dollars ($50,000) now being raised by the Stanton Street Baptist Church of New York city, on condition that the aggregate of subscriptions herein found shall not be less than the said amount of fifty thousand dollars ($50,000).</p> <p>“Moneys received will be paid into the New York Life Insurance and Trust Company.</p> <p>“Location of the new building to be Twenty-third street, corner of Lexington avenue.”</p> <p>On April 30, 1882, there was subscribed to this paper $50,145. Among these subscriptions however were one of “ Ladies Aid Society, Mrs. H. O. Hiscox, President, $5,000.” “ One of Young Men’s Mission Society, Harry Angelí, President, $5,000.” “ One of Youths’ Mission Society, E. D. Garnsey, President, $25.” And that of Catherine Weeks (the defendant’s testatrix), $5,000.</p> <p>This action was brought to recover the $5,000 subscribed by Catherine Weeks.</p> <p>It appeared in the evidence that the Ladies Aid Society, the Young Men’s Mission Society and the Youths’ Mission Society were unincorporated, and were formed for the purpose of prosecuting the work of the church in different channels; that the Ladies Aid Society was an old society having a special line of missionary work under its charge; that the Young Men’s Mission Society was an old organization for benevolent purposes; it also appeared that the subscriptions of these societies had been paid but not until after May 1, 1882; it also appeared that none of these societies were formed for the purpose of subscribing or soliciting subscriptions for the building of a church edifice.</p> <p>At the conclusion of the testimony on behalf of the plaintiff the court dismissed the complaint. The plaintiff then moved' for a new trial on the minutes which was denied.</p>

<p> Examination of party defendant after issue and before trial—when order for, not obnoxious to the objection that its object is to discover the evidence on which defendant relies to sustain his defense although its object is to prove the converse of defendant's affirmative allegations.—Boohs and papers, production of may be required as an incident to the examination. </p> <p>This action is brought on a certificate or agreement issued by defendant whereby it agreed on satisfactory proof of the death of Edward L. Chaffee to pay to his wife, the plaintiff, if then living, otherwise to the heirs or legal representatives of said Edward, the sum of $10,000 from the death fund (thereafter defined) of the defendant at the time of such death or from moneys that should be realized to such death fund from the next assessment to be made as thereinafter provided; and whereby it was provided, that no claim should be otherwise due and payable except from the reserved fund as thereinafter provided; and whereby it was further provided that only the excess of the reserve fund over $100,000, should be applicable to make up any deficiency that might exist in the death fund at the time a death claim was due for the payment of such claim.</p> <p>The complaint alleged, among other things, the death of said Edward, that due proof of such death had been given to defendant, and that the plaintiff was his widow. It contained, however, no allegation either that there was $10,000 or any less amount in the death fund at the time of the death of said Edward, or that $10,000 or any less sum had been realized from the next assessment, or that any subsequent assessment had been made, or that there was $100,000 or any greater sum in the reserved fund. It prayed judgment for $10,000 with interest or for such sum as the court might find and decree to be due upon the policy under its terms and provisions.</p> <p>The answer, among other things, affirmatively alleged, that at the time of the death of said Edward, the reserve fund of said association did not amount to the sum of $100,000, that there was no money in the death fund of said association applicable to the payment of the claim, if any, under said certificate, and that in pursuance of the provisions of said certificate and in accordance with the constitution and by-laws of said association an assessment was made, and that the amount realized to the death fund and applicable to the payment of the said certificate, if any sum whatever be due or payable, was the sum of $3,393.90; but denied that any sum whatever was due or payable under said certificate.</p> <p>On the application of the plaintiff before trial based on the pleadings and an affidavit of one Fiske, it was ordered, that defendant’s secretary be examined and his deposition taken pursuant to sections 872 and 873 of the Code of Civil Procedure and that he appear at a time and place specified in the order, and submit to an examination concerning the matters relevant to the issues in the action and concerning the matters stated in said affidavit. The order further directed him to produce the books and papers named in said affidavit, on said examination. On defendant’s motion this order was vacated.</p> <p>Held, that as the evidence sought to be obtained was to prove facts necessary to be established by plaintiff in support of her action, and as that evidence could only be obtained from defendant's officers and its books, and as it was not certain what officer had the necessary information, and as the books and papers might be required to make the examination of the witness effective, the vacation of the order was error.</p>

<p> Interpleader—Motion in nature of—Crantablé on application of an answering defendant, setting up no adverse claim, the other defendants (one of them answering) claiming adversely to the plaintiff-—Terms of order, restraining the plaintiff and the other defendants, ordering instrument \'to be deposited—Conditions, interest on principal from the time it is claimed to run must be brought into court—Costs, order need not impose. </p> <p>In this action the complainant claimed a principal sum with interest thereon from a certain date to be due from the corporation defendant upon a contract made by it. That defendant answered the complaint admitting the claimed principal sum to be due under the contract to some person and that it had been due since the date from which interest was claimed; but alleging that the other defendants claimed the sum to be payable to them; that it was ignorant of the rights and interests of the plaintiff and the other defendants in said sum and of their equities in respect thereto, and had no means of ascertaining the same; that it had-not since the principal sum became due been able to make payments to any one with safety, and that when said principal sum became due it was ready and willing, and had ever since been ready and willing, to pay the same to the persons rightfully, lawfully and justly entitled to receive it; and praying that it might be allowed to pay into court the said principal sum; that thereupon the interest on which the indebtedness arose (a policy of insurance) be surrendered to it; that it be discharged from all liability thereon and that plaintiff and other defendants be restrained from prosecuting any action against it on said instrument or anything connected therewith.</p> <p>One of the other defendants also answered.</p> <p>On the complaint, the two answers, and an affidavit which set forth no additional material facts, the corporation defendant moved at a special term held at chambers, for the relief asked for in its answer. On such motion the court made the order set forth in the opinion. The order ■ imposed no costs, and did not require the interest on the principal sum to be brought into court.</p> <p>Held, 1st. That the court had no power to discharge the corporation defendant without payment of the interest claimed as well as the principal; that if it had an equitable defense to the claim for interest, it must remain a party to the action and set it forth by answer.</p> <p>2d. That the order below should be modified by requiring the corporation defendant to pay the principal sum with interest thereon from the day from which it was claimed to the date of the payment of the principal.</p> <p>3d. That the order as modified should be affirmed.</p>

The action was brought to recover damages for the seizure of certain personal property that plaintiffs claimed to own under an attachment against a third party.

<p>Appeal from a judgment entered upon a verdict of a jury, rendered at trial term by direction of the court.</p> <p>The facts appear in the opinion.</p>

<p>Judgment on the pleadings at trial term, on the ground that no defense was interposed by the answer.</p> <p>The action was upon two promissory notes, made by the defendant and his partner for $5,000 each. The complaint was verified four days after the second note fell due. Every allegation in the complaint was expressly admitted at the trial.</p> <p>The answer however sets up in defense, that the notes were given under a written agreement of plaintiffs, that “ everything being satisfactory ’’ the notes were to be renewed at maturity so as to make the loan of two years duration; that subsequently plaintiffs further agreed to renew the notes for the same period “ except in case of unusual disaster ” to the defendant’s firm; that before the notes fell due the defendant’s firm furnished a statement to the plaintiffs showing a profit on the business done between the time of giving the first note and the time of rendering the statement; that the plaintiffs, after receiving this statement and examining the books, gave notice that they would not renew and told the defendant’s firm to make an assignment for creditors to one of' the plaintiffs, threatening, if this were not done, to make the defendant and his then partner, Guy B. Seely, pay all they owed; that before this, Seely & Trowbridge “had made such arrangements that they could have continued their business to a profit,” if the plaintiffs’ loan could not be collected from them; and that from the time they got the plaintiffs’ money up to the time of these “ wrongful acts” of the plaintiffs, the business of the defendant’s firm was profitable; but that on account of these things which the plaintiffs said, “ especially in view of the depressing effect which the said wrongful acts of the plaintiffs hereinabove mentioned in their notification and threats aforesaid, had upon the mind of the said Guy'B. Seely, which incapacitated him, said Seely, in a great measure from transacting the business to an advantage, this defendant and the said Guy B. Seely were unable to further prosecute their business successfully, as they would otherwise been able to have done, and their business and affairs were so disarranged that in justice to the creditors of this defendant and of the said Guy B. Seely, it became necessary that an assignment for the benefit of ercditors should be made by the said Guy B. Seely and this defendant, which they accordingly made on or about the Wth day of October, 1887; and that, as a result of the said assignment, the business, of the said Guy B. Seely and this defendant was entirely broken up and destroyed, and resulted in great loss and damage to them.” The date of the assignment was nineteen days before the first note would become due.</p> <p>Held, That the plaintiffs, notwithstanding their declarations could not compel the defendant to pay the notes, at maturity, if there was a valid agreement to renew which could be enforced. N. Y. Trust & Loan Co. v. Helmer, 77 N. T. 64; Pomeroy v. Tanner, 70 N. T. 547. Their declarations could not be considered a cause for the defendant’s firm stopping business, or making an assignment for which the plaintiffs would be responsible. The plaintiffs were not deprived of the right to consider the execution of the assignment, by the defendant’s firm as “ an unusual disaster ” which freed them from the obligation to renew, because they requested defendant’s firm to make the assignment. One of the conditions of the agreement set forth in the answer, was, that plaintiffs should advise defendant as a partner might advise and giving advice should not deprive the plaintiffs of the benefits that would accrue to them, if the advice given was received and acted upon. There aré no averments in the answer which modified the inference or conclusions arising from the making of the assignment.</p>

<p>Appeal by the appellant from an order made at special term.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>Appeal from judgment entered on verdict for plaintiff and from order denying motion for a new trial made upon the minutes.</p> <p>After the close of the testimony on both sides and before the judge charged the jury, defendant submitted the following requests to charge :</p> <p>1. The city of - New York is not the insurer of the safety of the public streets, and is- compelled by law to do no more than take reasonable care of the same.</p> <p>2. The city has, in law, the right to determine the particular kind of pavement which shall be used for its streets and sidewalks; and it is, therefore, not for the jury to say whether stone, iron or wood be safest or best for such purpose.</p> <p>3. There is no obligation assumed or imposed by law upon the city to keep its streets at all times and at all hazards in an absolutely safe condition for travel; the liability, therefore, of the city, so far as this case is concerned, and in all cases of a like nature, depends upon the fact whether the municipality has exercised due care under the circumstances in the maintenance or reparation of the streets. The mere existence of a defect from which a traveler sustains injury does not (independently of negligence) establish a culpable breach of duty on the part of the municipality.</p> <p>4. The jury, therefore, must not assume in this case, that because the iron plates, or some of them, used as gutter coverings, have worn smooth “ here and there,” that any responsibility or liability thereby necessarily attaches to the municipality.</p> <p>5. The omission of the city authorities to provide an underground sewer at Washington and Warren streets, for the purpose of carrying off the water from the street, furnishes no evidence whatever of negligence.</p> <p>6. There being no evidence whatever of consequential damages, the value of the horse alone, testified as being 13 50, is all plaintiff can recover.</p> <p>Thereupon the judge charged as follows:</p> <p>The plaintiff alleges that on the 3d of October, 1887, a horse belonging to him was injured through negligence of the defendant, and without any negligence on the part of the plaintiff or of his servants.</p> <p>The defendant denies that plaintiff’s horse was injured through its negligence; and it also denies that it was injured without negligence on the part of the driver of the horse.</p> <p>The first question, then, that you will determine is, was the horse injured, without negligence on the part of the driver of the horse ? And the next question is, was he injured through the negligence of the defendant. By the defendant, I mean the corporation of the city of New York and its servants.</p> <p>If you come to the conclusion that the horse was injured without negligence on the part of the driver of the horse, and through the negligence of the defendant, the city of New York, then you will ascertain what was the value of the horse.</p> <p>It is the duty of the city of New York to keep its streets in such a condition that persons may travel through them without injury to life or limb, not only in fair weather but also in rainy weather. But the corporation is not an insurer of the safety of those who use the streets. It is bound only to exercise a reasonable degree of care and diligence through its appointed officers ; and if it has exercised that reasonable degree of care and diligence, and then an accident should happen, still it is not negligent.</p> <p>The corporation of the city of New York is bound, when it has received notice that there is a dangerous place in one of the streets, to remove that danger within a reasonable time. And the corporation is also bound to loóle, on its own account, to see whether there are dangerous places in the streets.</p> <p>Now, the negligence of the corporation, if it be negligent, in this case consists in the fact that it either failed to repair this defective place, if it be a defective place, after it had received notice of the defect, or that it allowed it to remain in the defective condition for so long a time that it was negligent in not finding out that there was such a defect there. In other words, its negligence in the last view would be what the lawyers call constructive negligence—negligence because it failed to exercise due care in ascertaining whether or not there was a defect in the streets.</p> <p>You have heard the testimony as to this point, and it becomes material then, for you to ascertain how long the street was in a defective or dangerous condition, if it be a dangerous condition. And if you find that it had been in such a condition for months or years prior to that time—prior to the third of October—then you would be authorized in saying that the city was negligent in not repairing it.</p> <p>If the plaintiff is entitled to recover at all, he is entitled to recover only the value of the horse. That value, I believe, has been fixed by the experts at §330 or §350. You may find, if you conclude that the plaintiff’s property was injured without negligence on his part and through the negligence of the defendant, in any sum up to §350, but as I told you, you can find against .the city only if you come to the conclusion that this was a dangerous place, and also if you come to the conclusion that it remained there for so long a time that the city was negligent in not repairing it.</p> <p>The other requests I refuse to charge.</p> <p>At the conclusion of the charge defendant’s counsel excepted as follows : “ I except to your honor’s charge and to the refusal to charge my requests, other than the first and sixth; said first and sixth having been charged.”</p> <p>The other facts sufficiently appear in the opinion.</p>

<p>Evidence, exelusion of, when not injurious to appellant—agency as to a particular transaction, exclusion of testimony as to general powers of a superintendent of a corporation when not injurious, § 829 Code of Civil Procedure, who not debarred from testifying by its provisions, one for whose benefit the business in relation to which the evidence is given, he being an inf ant,is not.</p> <p>One of the questions involved in this case was whether one Schoenberg, the superintendent of plaintiff, was constituted the agent of plaintiff according to whose directions defendant was to construct a certain machine; evidence was given on behalf of the defendant that at the time when he was employed to construct the machine the president said 'to him, “You make this machine as Schoenberg instructs you.” The court charged the jury that Schoenberg, as superintendent, simply had no authority to direct the defendant; but that if the president did make to defendant the said statement the defendant had a right to act in accordance with the instructions given by Schoenberg. Held, that the exclusion of testimony as to the custom of the superintendent, as to the mode of the business of the company, as to whether any person other ' than the president was authorized to give orders, and as to whether the witness (not being the president) authorized the superintendent to give directions as to the machine in question, or for extra work, was not injurious to the appellant, even if the evidence was relevant, and therefore its exclusion was not ground for reversal.</p> <p>On the trial a son of the defendant was permitted to testify to directions given by Schoenberg (Schoenberg being deceased). Held, that although the business -was set up and prosecuted for the benefit of the son, yet as he had no legal interest in it and as being an infant he could not have a legal interest, and as he was not a party to the action and was not interested in the event, and was not one from whom the defendant had acquired an interest he was not precluded from testifying by the provisions of § 829 of the Code of Civil Procedure.</p>

Appeal by defendants from judgment entered Upon findings made at special term.

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

Appeal by defendant from judgment entered upon verdict of jury. This action was brought to recover commissions alleged to have been earned by Louis Sternberger, a stock broker, for services alleged to have been rendered by him as broker'in the purchase by him for the defendants jointly and at their request certain shares of stock, and for a balance due on the purchase money of such stock advanced by him for the purchase thereof at the request of the defendants.

<p> Opening and closing argument, which party entitled to same. </p> <p>Where the defendant has the affirmative of an issue, he has the right to open and close the argument to the jury, and it is error to deny him the right. Murray v. N. Y. Life Ins. Co., 85 N. T. 236. It is a legal right not resting upon the discretion of the court, and if denied and exception is taken to the denial, is subject to review on appeal.</p>

<p>Appeal from judgment in favor of the plaintiffs entered upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.</p>

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

<p> Negligence, damages resulting therefrom—Ambulance entitled to right of way. </p> <p>Upon the question of defendant’s negligence and plaintiff’s contributory . negligence this case was one for the consideration of the jury.</p> <p>Under chapter 186, of the laws of 1879, the ambulance was entitled to the right of way as against the ice wagon, and the plaintiff, in a certain aspect of the case, had a right to assume that defendant’s driver would pay proper heed to the ringing of the ambulance bell and plaintiff’s shout- ' Ing.</p>

<p> Bond or Agreement of Indemnity by the defendants to the plaintiff, covenanting to save plaintiff’s harmless upon its guaranty of indemnity to a sheriff, against the consequences of levies under executions in his hands—Extent of liability. </p> <p>The extent of the liability depends upon the conditions of said agreement, and these are to be so construed as to give due effect to each and every part thereof, according to the intention of the parties at the time. When thus construed, a reference in a part of one of the recitals to a sum of $214.52, must be rejected as plainly erroneous when it so appears from the remaining portion of the same recital.</p> <p>This reference does not constitute the whole of the recital, in regard to the extent of the bond given by the plaintiff for defendants to the sheriff, for in continuance the recital' further states in reference to the said bond “ a copy of which bond is hereto annexed marked * A ’ and forms a part hereof.” The copy of the bond referred to, being actually annexed, it forms a part of the recital, and corrects any misdescription therein, and shows the amount of liability assumed by the plaintiff to be $10,000. There is no ambiguity. The operative words of the agreement are clear and cannot be controlled nor affected by the erroneous recital. Holmes v. Hubbard, 60 N. Y. 183.</p> <p>It makes no difference, that some of the other execution creditors executed to the plaintiff separate indemnity agreements for the whole loss, similar to that given by these defendants. If all the execution creditors, including the defendants, had executed to the plaintiff a joint indemnity agreement, a different question would be presented.</p>

<p> Attorney, misconduct of; Summary power and jurisdiction of the court in the premises, should be invoked only in an action in which the alleged misconduct was committed and in the court in which such action was brought. </p> <p>This court has power over an attorney, only so far as relates to his conduct in an action in this court. The practice has always been to make a motion of this kind in the particular action in which the misconduct occurred. It does not appear that defendants have so conducted themselves in this action, that the summary power of the court should be invoked against them.</p> <p>The application should have been made in the original action in which the alleged misconduct was. committed, and it does not appear that such original action was or was not in this court, and if it was not, the application could not be entertained, hence the order denying the motion is denied.</p>

The facts sufficiently appear in the opinions and the head note. The judge at special term on denying the motion, wrote as follows:—

<p>Negligence, rounding a corner at a greater speed than allowed by the ordinance, with other circumstances, sufficient to call for submission to the jury.—Contributory negligence, a foot passenger crossing a street railroad is not subject to the same duties as one crossing a steam railroad.— Failure to see approaching street car, not as matter of law contributory negligence.</p> <p>Where the injury sued for was caused by a street ear passing easterly, along a street running east and west, and rounding a curve southerly, into a street running north and south, striking the injured party at the northwest corner of the streets, and there is evidence that the car approached and rounded the corner at a rate of five or six miles an hour, and the driver testified that he saw the party when he was a block away in the street running east and west, that there was nothing between the car and the injured party, and it did not appear that the driver attempted to stop the car until it was close to the injured party, or that there was anything to prevent the driver from stopping the car before it struck the injured party, Held, that the question of defendant’s ■ negligence was properly submitted to the jury, and in connection with this evidence, the jury might consider the ordinance prohibiting the turning of corners with vehicles or horse, or horses, at a greater speed than three miles an hour.</p> <p>Contributory negligence.—The rule as to the duty of a person about to cross a steam railroad track does not apply in equal strictness to a person about to cross a horse-railroad in a crowded street in a city. A failure to see an approaching street car under such circumstances is not, as matter of law, contributory negligence.</p>

<p>Submission of controversy upon agreed facts, and the question presented is, whether the real estate of the plaintiff used for the purpose of its incorporation is exempt from taxation.</p> <p>The facts sufficiently appear in the opinion.</p>

<p> Brokers—commissions not earned, in the absence of bad faith, unless they bring parties to prove an agreement. Evidence, insufficient to establish a bringing of the parties to an agreement. </p> <p>Plaintiffs are real estate brokers and brought this action for commissions on a leasing of real estate. Defendant being desirous of leasing a building of which he was the owner, employed a broker named Goodale, who was in charge of the building and had the keys and who caused to be affixed on the building a sign, that persons wishing to rent should apply to him. The plaintiffs knowing that the building was to lease, sent a party to look at it and afterwards one of the plaintiffs had an interview with defendant in respect to leasing to that party, in which he said to defendant,—“ The commission is one per cent on five years lease, to which defendant replied that is all right but I think I would not like to rent to that party because I do not like the business; ” and also said, “ I suppose about $11,000 would take the building to a good party on alease.” Afterwards plaintiffs on behalf of their party, made a definite offer to defendant for a five years lease from May 1, 1887. This offer was declined. Defendant demanded that rent should begin March 1st and said to plaintiffs, “if your parties will take the place from March 1st, I will let them have it on the terms they propose.” After this, on January 31st, plaintiffs renewed the former offer with the exception of making the rent begin April 15th instead of May 1st, saying that was the best offer their parties could make. Defendant being pressed • to give a definite answer to this offer wrote to plaintiffs declining the offer and ending his letter with “ the negotiation is now closed.”—About a week after this the parties, on whose behalf plaintiffs had been negotiating with defendant, opened negotiations through Mr. Goodale, the ' result of which was a lease to them on the terms offered by plaintiffs, except that the rent was to commence April 1st. There was no evidence of bad faith on the part of the defendant. The facts were undisputed.</p> <p>Held, (1) that plaintiffs had not earned commissions in as much as they had failed to bring the parties to an agreement. (2) That a direction of a verdict for plaintiffs was error.</p>

Appeal by plaintiff from a portion of a judgment in his favor. This is an action of replevin for certain machinery. The case was submitted to the jury who found the title' to the property to be in the plaintiff, and that he was entitled to its return and assessed the value of the property at $2,100, and the damages for detention at $445.

Appeal by the defendant from judgment in favor of plaintiff for $3,540 damages, entered upon verdict of a jury, with costs, and also from order denying motion for a new trial upon the usual grounds. . The plaintiff claiming to be the owner of the property No. 156 West Fifty-third street, brought this action for the damages claimed to have been sustained by her in consequence of the maintenance and operation of defendant’s railway in front of her property.

Application by plaintiff for judgment on the verdict of the jury in favor of the plaintiff by direction of the court, subject to the opinion of the court at general term. One Burchell, being the owner of two adjoining lots 503 and 505 West Fifty-fourth street, 503 being the most easterly lot, built on them two houses each five stories high, having a party wall between them twelve inches thick.

The pamphlet for the tax sale in question in this action contained nine columns.—The first was headed “Number.”—The second “On or between what streets or avenues.”—The third “Between what streets or avenues.”—The fourth “Description.”—The fifth “To whom assessed.”—The sixth “ Block number.”—The seventh “ Ward map number.”—The eighth and ninth had but one heading, viz.: “ Amount of taxes.” On the tax sale a lot described in said pamphlet by the following entries in the…

<p>Appeal from order of special term made on the application of Thomas Lyons, a purchaser at the partition sale in the above entitled action, releasing said Lyons from his purchase because of a defect in the title.</p> <p>Appeal from order of special term denying the application and motion of plaintiff, made in the above entitled action, that J. Remain e Brown, the assignee of the bid of B. P. Fairchild, another bidder at said partition sale, be compelled to take title to the premises included in said bid; said Brown having declined so to do because of alleged defects in the title.</p> <p>The facts and points in the case fully appear in the opinion of the judge at special term, which was as follows :—</p>

<p> Personal injuries, action for—Evidence. </p> <p>Prior to the commencement of this action, the plaintiff had brought a suit (afterwards discontinued), against the Knickerbocker Ice Company to recover damages for the same injuries.</p> <p>Held, that the fact of bringing such a suit, did not estop him from bringing this action against the defendant, the evidence in regard to the institution, prosecution and discontinuance of the suit against the Knickerbocker Ice Company, and the explanations of the defendant in regard to the same, were matters for the consideration of the jury.</p> <p>So, also, the testimony concerning an offer made by the plaintiff to pay the witness Conway, $100, was properly submitted to the jury, with plaintiff’s explanation concerning the same, to be considered in determining how much weight should be given to plaintiff’s testimony.</p> <p>The point raised by defendant, as to the calling and examination of the witness Johnson by the trial judge, presents no ground for reversal. The witness was accepted by the plaintiff as his witness. If the circumstances under which this was done and the remarks that passed between the trial judge and the counsel for the defendant at the time tended to prejudice the defendant’s ease with the jury, the defendant upon a case properly made of the facts, should have moved at special term for a new trial as a matter of discretion. As this was not done, no relief can be granted upon a mere general exception.</p>

<p>Life Assurance Policy, terms and conditions of same, and the proper and legal distribution and payment of amount as provided therein. Demurrer to complaint.</p> <p>The facts and claims set forth in the complaint in this action, that were demurred to are as follows:</p> <p>That defendant executed a policy of insurance for the sum of $5,000 on the life of Archibald T. Finn, for the sole use of his wife, Jane E. L. Finn, with a provision that in case Mrs. Finn died before her husband . the insurance should be payable to their children ; that Mrs. Finn died in the year 1864 (before her husband), leaving her surviving her husband and three children, namely: Katherine A. Anthon, wife of George C. Anthon, Myraette Miles, wife of Charles A. Miles, and Caroline C. Finn; that Katherine A. Anthon died about the year 1881 (before the death of her father), leaving her surviving three children, namely: Christeane Anthon, and Archibald F. and George C. Anthon, the last two named being the wards of the plaintiff; that Myraette Miles died in November, 1882 (before the death of her father), intestate and without issue, and letters of administration were thereafter issued to her husband, Charles A. Miles; that Archibald T. Finn, the cestui que vie, died in March, 1885, leaving him surviving his daughter Caroline C. Finn (the only one of his daughters surviving him) and his three grandchildren, the children of his daughter Katherine A. Anthon; that in’ November, 1885, the defendant paid one third of the amount of the policy, to said Caroline C. Finn, one third to the administrator of Myraette Miles, and the remaining one third equally among the children of Katherine A. Anthon; that there is now due and owing to the plaintiff, as guardian of Archibald F. and George^C. Anthon, one ninth of the entire amount insured by the said policy, said ninth being equal to the amount wrongfully paid by defendant to the administrator of Myraette Miles, deceased, namely, $555.50.</p> <p>Held, that the distribution and payment of one third of the amount insured by the policy to the administrator of Myraette Miles, was unauthorized and illegal; that Mrs. Miles having died before her father, : the cestui que vie, without issue, her administrator had no right to any share of the money payable on the death of the cestui que vie, Archibald Finn, that the defendant must pay to the plaintiff the amount claimed.</p>

Appeal by the applicants from an order vacating the attachment issued in the action, with the condition that the applicants pay the fees of 'the sheriff. The appeal is from so much of the order, as required the payment of the fees of the sheriff.

<p> Warranty by assignment of claim, implication of—Implied trust, raising of by letters—Warranty of title to, and validity of claim, matters constituting breach—Payment which might otherwise be referred to a contract, when consideration to support an assignment—Complaint, surplusage of averments will not impair a right of action sufficiently set forth—Complaint, dismissal of, effect of, exception to, not impaired by omission to except to refusal to direct verdict. </p> <p>Upon an assignment of a claim for a consideration paid, a warranty ia implied that the assigned claim is an existing valid one, (at least to the extent of the consideration paid,) which may be transferred, and that it had never been satisfied or discharged by the act of the assignor.</p> <p>Where parties having a demand against the owner of a vessel for money disbursed on the vessel and commissions, take out to cover such demand an open policy, loss payable to them or whom it may concern, and the following day receive a letter from the owner requesting them to have the advances secured, if they had not already done so, so that in case of loss they would not call on the owner for advances, and reply the next day by letter stating that they had covered the amount, the letters amount to a declaration of trust, or to an agreement that they would hold the policy for the owner, and apply the insurance money to the payment of the demand against the owner.</p> <p>Where, by agreement between an assignor and the person against whom the claim undertaken to be assigned existed, certain moneys payable by the assignee to the assignor were to be by him applied to the ex-tinguishment of the claim undertaken to be assigned, a payment of such moneys by the assignee to the assignor made before the execution of the assignment conditionally on its execution, operates (it being sufficient for that purpose) to extinguish the claim undertaken to be assigned, and there being nothing to pass by the assignment, there is a breach of the implied warranty.</p> <p>Where a contract contains a clause that one of the parties thereto shall not be bound to make a payment provided for if the other party makes or does any agreement or act past or future, whereby a right of subrogation which the former party would otherwise" have had to a right of recovery by the latter party against any person, is released or lost, the malting such an agreement, or doing such act, relieves the former party from any liability under the contract, and the payment by the former party to the latter of the sum thereby agreed to be paid, is not to be referred to the contract, but forms a good and sufficient considera- ■ tion for an assignment by the latter to the former of a right of recovery to which the former would otherwise have been entitled to be subrogated.</p> <p>Where a complaint sets forth enough to support an action for a breach of warranty, the action will be supported in that aspect, although it contains allegations which are superfluous to such a cause of action.</p> <p>The rights secured by an exception to a ruling dismissing the complaint are not impaired by an omission to except to the court’s denying plaint- . iff’s motion for a direction of a verdict in his favor.</p> <p>Application of above principles.—Defendants having a demand against the owner of. a vessel for advances and commissions, took out to cover such demand a policy of insurance on the vessel underwritten by plaintiff on March 31st of the tenor and character above indicated. On the ■ first and second days of April letters passed between the owner and the defendants of the nature and character above indicated. The vessel made a total loss Plaintiff refused to make payment under policy unless defendants would assign to it their demand against the owner. Defendants agreed to do so; thereupon plaintiff made payment and received an assignment as promised. The complaint contained many allegations of fraudulent representation or concealment, but striking out these there was sufficient left to support an action for a breach of warranty. Defendants moved for dismissal of the complaint, which was granted, and plaintiff excepted; then the plaintiff moved for a direction of a verdict in his favor, which was denied, and no exception taken. Held, that the judgment should be reversed.</p>

Appeal by plaintiffs from judgment entered upon the dismissal of the complaint at the trial. The facts sufficiently appear in the opinion.

Appeals by defendant (1) from order denying her motion to set aside the order for the examination of a third party alleged to have personal property of the defendant, a judgment debtor, in his possession; (2) from order denying her motion to set aside the order by which a receiver of her property was appointed in proceedings supplementary to execution without notice to her; and (3) from order and supplemental order directing the said third party to deliver the personal…

<p> Negligence and contributory negligence. </p> <p>The plaintiff, an infant about six years old, seeks to recover damages for an injury to his hand caused by defendant’s alleged negligence in leaving a derrick on the street unfastened and unguarded.</p> <p>At the time of the injury, that occurred on a Sunday, the plaintiff and other boys had been playing in the street in the vicinity of the derrick, and plaintiff sat down on the drum or cylinder of the derrick to peel some peanuts. While in that position and thus occupied, some boy turned the wheel of the derrick, and the plaintiff, to save himself from falling, grasped instinctively for support, and, in doing so, his hand was caught in the cogs of the cog-wheel of the derrick and one of his fingers was crushed. The plaintiff at the time was in charge of his brother, who was eleven years old, and accustomed to have the care of the plaintiff on the street by the direction of the parents of plaintiff</p> <p>The trial judge left it to the jury to say whether the plaintiff was or was not sui juris, whether he was or was not guilty of contributory negligence ; aiid in case he was sui juris, whether the plaintiff’s brother or his parents were or were not guilty of contributory negligence; and in regard to the negligence of the defendant, the Mai judge left it to the jury to say: (1) whether the derrick, in the condition and place where it was left by defendant, was or was not a dangerous machine and likely to cause injury to children if left unguarded or unfastened; (2) whether, as a matter of fact, it was left unguarded or unfastened or both ; and (3) if it was both dangerous to children, and unguarded and unfastened, whether that condition, as a matter of fact, constituted negligence in the defendant.</p> <p>Held, that the disposition of these questions by the Mai judge was, under all the circumstances appearing in evidence, as favorable to the defendant as he could expect; that there was no error in this submission, and there was sufficient evidence to sustain the same; and although the defendant produced sufficient evidence that, if believed by the jury, would sustain a verdict in his favor, but the result was only to create a conflict of evidence which the jury had to determine. That the instructions given to the jury, in their entirety, covered all that the defendant was entitled to, and the exceptions to the refusals of the judge to charge differently, are untenable.</p> <p>That no error appears in any of the rulings of the trial judge, nor any sufficient reason for disturbing the verdict of the jury; nor can it be maintained that the verdict was excessive.</p>

<p>Appeal from an order made at special term continuing an injunction pendente lite.</p>

This action was brought upon a judgment alleged to have been recovered by the plaintiff against the defendant in the Court of Common Pleas of Northampton county, Pennsylvania. The judgment roll offered in evidence by the plaintiff on the trial is printed in full in the case. It was objected to by defendant as without jurisdiction, but the court admitted it in evidence, and directed a verdict for the plaintiff to which direction defendant excepted.

<p> Supplemental answer, not allowed to set up an unsubstantial defence, nor to set up a record which, without being set up by answer, can be read in evidence with like effect as if set up. </p> <p>Where it appears by the moving papers that the matters sought to be set up in the supplemental answer as a plea in bar to an action on a quantum •meruit, for work done and materials furnished on a vessel, is a judgment of the United States District Court against the plaintiff, rendered after a trial of the issues joined by a libel filed by him against the vessel to enforce a claimed lien thereon for such work and materials, and the answer thereto filed by the owner of the vessel (being also the defendant) who asks leave to serve a supplemental answer dismissing the libel on the ground that no maritime lien existed, the motion for leave to serve a supplemental answer should be denied.</p>

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

Appeal by plaintiff from an order denying bis motion for an order requiring' the defendant to elect by which of certain parts of an answer the defendant would abide. His motion was founded on his affidavit in which he set forth : “The.object of this motion is to require the defendant to elect as to which pleading he will abide by.

<p> Assignment for benefit of creditors—Non liability of assignee's sureties for the omission of the assignee to pay a claim of his attorney for services directed by the final decree on his accounting to be by him paid out of the funds of the assigned estate. </p> <p>The plaintiff in this case had rendered services as attorney and counsel to an assignee under an assignment for the benefit of creditors. Upon an accounting by the assignee, to which his sureties were parties, a final decree was made by which the assignee was directed to pay from the funds in his hands, as assignee, within a specified time, to the plaintiff in this action, the attorney for the assignee, the sum of $2,123.37 with interest. At the time of the entry of this decree the assignee had on hand, as such, more than that sum. Plaintiff was not a party to the accounting proceedings and presented no claim therein. After the decree the assignee made a payment to plaintiff on account. This action is brought against the sureties of the assignee to recover the balance of the $2,123.37, remaining after deducting such payment, upon the assignee’s failure to pay it. '</p> <p>Held, on demurrer to the complaint, that the sureties were not liable.</p>

The action was commenced by one Edward Ralph. The complaint counted on a promissory note for $750, made by defendant to the order of Henry S. Cohu, dated December 11, 1878, payable four months after date, and alleged that prior to the commencement of the action said Cohu died intestate, and letters of administration were duly issued to certain persons who prior to the commencement of the action, and after the maturity of the note, assigned and transferred it to the plaintiff.

<p> Municipal ordinances. Effect of a subsequent ordinance limiting the extent of an improvement authorized by a prior one upon a contract made under such prior one for the doing of the work thereby authorized—As to injunction against contractor enjoining him against prosecuting his work except to the extent authorized by the subsequent ordinance. </p> <p>'Where a municipal ordinance authorizes certain work and a contract is entered into between a contractor and the municipality through its proper officer in conformity with such ordinance for the doing of such work, such contract remains in full force with the liabilities of the respective parties that the law attaches thereto, notwithstanding the passage of a subsequent ordinance altering, diminishing, or limiting the extent to which the work was authorized by the first ordinance.</p> <p>Until the municipality acts on the later ordinance, and by its proper authorities forbids the contractor going on under his contract, he has the right to pursue the work in conformity therewith.</p> <p>Under such circumstances a citizen of the municipality claiming that he will be seriously injured by the prosecution of the work beyond the extent authorized by the later ordinance, cannot enjoin the contractor from proceeding with his work in conformity with his contract.</p>

<p> Statute of Limitations—Amendment to complaint on the trial—Evidence under same, etc. </p> <p>Plaintiff brought an action in September 1886, to recover for services pier-formed from April, 1880, to July, 1881, and one of the defences set up in the answer was the statute of limitations, yet plaintiff went to trial without asking to amend his complaint, and on the trial was allowed, the defendant objecting, to amend his complaint by alleging “that he was not to be paid for his services until the defendant was able to piay running expenses, and was also allowed to prove, defendant still objecting, that the defendant became able to pay its running expenses on the 1st day of January, 1883.” Held, that the motion to amend should have been denied on the ground of the plaintiff’s laches in moving for amendment. It is no answer that the defendant was not misled in his defence. The plaintiff’s motion should have been denied. Another reason for reversal is, that against the objection of the defendant, the plaintiff was allowed to show that defendant became able to pay running expenses in 1883.” This was the reception of evidence on an issue not presented by the complaint, in other words, the complaint as amended did not state the cause of action on which plaintiff recovered. That the defendant became able to pay its running expenses was a condition precedent, which should have been alleged in the complaint, and it was error to admit evidence of such material fact or condition not so alleged.</p>

<p> Practice on appeal—Order appealed from must be duly entered and appear in the printed case. </p> <p>In this case, although the notice of appeal states that defendant appeals from an order made after the verdict was rendered, refusing to grant a new trial, the printed case did not contain any such order.</p> <p>Held, that the court will not review on appeal, an order denying a motion for a new trial, unless that order shall have been formally entered and appears in the printed case on appeal.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial, etc. The facts in the case fully appear in the opinion of the court.</p>

<p>Appeal from an order denying a motion made by the defendant to vacate an order of arrest.</p>

<p> Commission to take testimony. </p> <p>The power of the court to issue a commission is derived from and depends upon §§ 887, 888 and 889 of the Code of Civil Procedure. In this ’ ease the name of the commissioner was not inserted in the order for the commission, and the order provided for the examination of “ Such other witnesses as the defendants may submit the names and addresses of to the plaintiffs.” Held, that because of these two defects the order .is irregular.</p> <p>The respondent failed to show that the persons whose testimony he desired to take were not within the state, and made no allegation that the testimony of two of the persons he sought to examine were material, etc. Held, that these omissions were fatal. ,</p>

<p> Certificate of the trial justice that the title to real estate came in question cm the trial. </p> <p>It was conclusive upon the taxing officer in entering the judgment so as to include costs. Such a certificate is not such an intermediate order that can be brought up for review by an appeal from a' final judgment. There can be no available exception made to such a certificate, consequently, in the case at bar, there is no ground for the reversal or modification of the judgment based upon the certificate having been improperly granted. The relief in such case is by a motion to set it aside. In the case at bar there was no order formally made or entered, granting the motion for the certificate, and, as the case stands the defendant’s remedy, if aggrieved, is by motion and by appeal.</p>

<p> Contract, terms thereof as to time of performance, and certificate as to the time by commissioner of public works. </p> <p>When by the terms of a contract the computation of time as to delay, etc., is to be certified by the commissioner of public works, and it does not appear that he had refused to certify, no other method of settling the facts, which the contract provided should be determined by the commissioner, can be resorted to.</p> <p>In the case at bar, the court would have ignored the provisions of the contract, if it had allowed the jury to undertake the decision of a question which the parties agreed should be made by the commissioner of public works.</p>

<p>Appeal from an order at special term directing the appellant to print and serve all the papers referred to in an appeal from an order of August 31, 1888.</p>

<p>Appeal from judgment in favor of plaintiff entered upon findings etc. at special term.</p> <p>This action was brought by the plaintiff seeking to be released from a contract for the purchase of the premises described in the complaint, which he had bid off at an auction sale made by the defendants on the 25th day of May, 1887.</p> <p>The defendants asked a judgment for specific performance.</p> <p>The question litigated is whether the defendants were able at the closing of the title to give the plaintiff a good marketable title. The defendants’ title arises as follows:</p> <p>Nicholas G-. Kortright died prior to April 1, 1874, in possession of and the owner in fee simple absolute of such premises, together with others. He left a will which was duly proved and admitted to probate as a will, and real and personal estate, and which was as follows :</p> <p>“I, Nicholas G. Kortright, being of sound and disposing mind, memory and understanding, do make, publish and declare this my last will and testament in manner following, that is to say :</p> <p>“First.—My executors hereinafter named shall as soon as may be after my decease pay from my estate all my just debts and funeral expenses.</p> <p>“ Second.—I give and bequeath to my wife all my household furniture, books and plate.</p> <p>“ Third.—The residue of my property real and personal shall be equally divided between my wdfe and my children and I direct that my executors shall as soon as may be conveniently done after my decease, divide such residue into as many equal shares as may be necessary to give to my said wife and children each two shares thereof, any child or children of mine who shall be born after my decease shall share equally with those born during my life.</p> <p>“ Fourth.—At the time of such division my executors shall set apart to my wife and each of my children two of such equal shares which shall be designated as belonging to the said parties respectively.</p> <p>“ Fifth.—My executors shall convey to my wife and each of my children one of such equal shares which shall be held by the said parties respectively at their absolute disposal free from all control whatsoever.</p> <p>“ Sixth.—My executors shall retain the residue of such equal shares in trust for the benefit of my wife and children and shall pay to my wife and each of my children during their natural lives respectively the interest or income of one of such equal shares; my executors shall keep separately the accounts of each share so retained by them.</p> <p>“ Seventh.—At the death of any of my said children leaving lawful issue, the share of the child or children so dying shall vest in such issue.</p> <p>u Eighth.—At the death of any of my said children without leaving lawful issue, the share of the child or children so dying shall vest equally in my surviving children and the lawful issue of such of my children as may before that time have died, such issue to take the share which his, her or their parent respectively would have taken, if living.</p> <p>“ Ninth.—After the death of my said wife that portion of her share remaining in the hands of my executors shall be divided equally among my surviving children and the lawful issue of such as may before that time have died; the lawful issue of such of my children as shall have died before the death of my said wife shall take the portion which his, her or their parent respectively Avould have taken if living.</p> <p>“ Tenth.—The provision herein made for my said wife is to be received by her in lieu of her doAver in my estate.</p> <p>“ Eleventh.—I give my executors full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my debts as hereinbefore provided to invest the proceeds in other real estate or in personal securities as they in their discretion may deem most for the interest of the parties interested in my estate.</p> <p>“ Lastly.—I hereby nominate and appoint Edward Min turn and George W. Blunt, of the City of New York, Executors of this my Last Will and Testament, and trustees of my said estate, hereby revoking all former wills by me at any time made.”</p> <p>The executors and trustees named renounced and refused to qualify.</p> <p>On June 8, 1874, letters of administration, with the will annexed, were issued to Sarah J. Kortright and Benjamin Collins, who qualified and entered upon their duties.</p> <p>In 1876 Sarah J. Kortright instituted in the Supreme Court of this state, a suit for the partition of the real and personal estate whereof Nicholas G. Kortright died seized ■ and possessed, and in her complaint prayed that a partition and division of the said estate, real and personal, as directed by said will, might be made among the parties interested therein, under the direction and according to the course and practice of the court, by commissioners to be appointed for that purpose. And in case it should appear that a partition .thereof or of any part thereof could not be made without material injury to the rights of the parties interested therein, then that the same might be sold under the judgment of this court'; and that the proceeds of such sale, after paying the costs and charges of this suit, might be divided among the parties hereto according to their respective rights and interests therein; and that, to that end that the rights and interests of the parties interested in the said estate or in the proceeds thereof, might be ascertained and declared by the judgment of the court; and also prayed for the appointment by the court of a trustee under the will of said deceased in the place and stead of the trustees therein named ; and that the said trustee so appointed might by the judgment of the court be seized as trustee of the shares in said will directed to be held in trust during the lives of the parties interested therein, and that the rights and interests of the parties thereto in the same might be ascertained and declared by the judgment of the court.</p> <p>The parties to that action were Sarah J. Kortright, plaintiff, and Gouverneur and Lawrence M. Kortright, defendants.</p> <p>The defendants being infants, J. W. C. Leveridge was appointed guardian ad litem for them. The usual order' of reference on title was made. On the coming in of the referee’s report, an interlocutory decree was entered bearing, date October 2, 1876, whereby it was, among other things decreed, that the rights and interests of the several parties to the suit of, in and to the land and personal property referred to and described in the complaint were as stated and set forth in the said referee’s report; and decreed that partition be made of said land and property (describing the land) among the parties to the suit according to their respective rights and interests therein as the same were reported by the said referee, and had been ascertained by the court and established by the judgment; and whereby J. W. C. Leveridge, W. Cary Smith and Bernard Smyth, were appointed commissioners for the purpose of malting such partition. And the commissioners were directed to divide the said lands and premises and personal property into six equal parts, quantity and quality relatively considered, and to allot to the plaintiff one of the said six equal parts to be held by her at her absolute disposal, and one other of such equal parts to be held for her benefit during the term of her natural life, by the trustee .hereafter to be appointed by this court to execute the trusts created and declared by the will of Nicholas G-. Kortright, deceased; and to allot to the defendant, G-ouverneur Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life ; and to allot to the defendant, Lawrence M. Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life, such shares to be held and enjoyed by the said parties in severalty according to their rights and interests therein as ascertained and determined in such judgment.</p> <p>Thereafter the commissioners made their report, dated March 14, 1877, whereby they reported, among other things, that they had divided the lands and premises in the interlocutory decree and commission particularly described, into six equal parts, designated by them as allotments Nos. 1, 2, 3. 4, 5 and 6; that they had set apart, allotted and assigned to the said Sarah J. Kortright the premises in allotment No. 4; to be held for her benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Sarah J. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaidthat they had set apart, allotted and assigned to the said Lawrence M. Kortright, the premises in allotment No. 5, to be held for his benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Lawrence M. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that they had set apart, allotted and assigned to the said Gouverneur Kortright, the premises in allotment No. 6, to be held for his benefit by the trustee, thereafter to be appointed by the court, according to the right and interest of the said Gouverneur Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that the said allotments were valued by them as follows : allotment No. 1 at sixty-five thousand four hundred and seven dollars; allotment No. 2 at sixty-five thousand seven hundred and twenty-two dollars; allotment No. 3 at sixty-five thousand four hundred and five dollars; allotment No. 4 at sixty-five thousand three hundred and fifty dollars; allotment No. 5 at sixty-five thousand two hundred and fifty dollars ; allotment No. 6 at sixty-five thousand two hundred and fifty dollars ; that the only personal property remaining in the estate was of the value of about twenty-two thousand dollars; that they had made no division thereof for the reason that it would not be more than sufficient to pay a certain mortgage.</p> <p>. They also reported as to payments to be made for equality of partitions.</p> <p>Thereafter, on the 15th day of March, 1877, an order was made on the petition of Sarah J. Kortright, whereby it was ordered, “ that Benjamin Collins of the city of New York, be and he is hereby appointed trustee under the will of Nicholas G. Kortright, deceased, to hold that portion of the estate of said deceased which under the said last will and testament was devised and bequeathed to the said Sarah J. Kortright, and Gouverneur Kortright and Lawrence M. Kortright during the terms of their natural lives respectively, being three equal sixth parts of the said estate, on his executing a bond to each of the said parties in the penalty of ten thousand dollars with the said Sarah J. Kortright as surety, conditioned for the faithful performance of his duties as such trustee, and for rendering a faithful account of his trust in all courts and places when thereunto required, which bond shall be approved as to its form and manner of execution, and as to the sufficiency of the surety therein, by one of the justices of this court and filed in the office of the clerk of this court , and that, in accordance with the directions contained in the said last will and testament, that the said trustee keep separately the accounts of each of the said shares, and that he pay over to the said Sarah J. Kortright, Gouverneur Kortright and Lawrence M. Kortright respectively during their respective lives the interest or income of the share so set apart to them respectively by the said commissioners, and that on the death of any or either of them he pay over and transfer any money or property in his hands belonging to such shares respectively, according to the provisions in the said last will and testament contained, and as this court may hereafter direct.”</p> <p>Thereafter, on the 24th of March, 1877, a final decree was made in said partition action whereby, among other things, it was decreed, that the partition so made by the aforesaid commissioners be firm and effectual forever ; that the appointment of Benjamin Collins as trustee, theretofore made by the order of March 15, 1887, “ be and the same hereby is declared absolute, and that the said Benjamin Collins as such trustee, be and he hereby is invested with full power and authority to execute the trusts created and declared in the said last will and testament of the said Nicholas G. Kortright, deceased, and with all the powers and duties, and subject to the obligations with which trustees are by law invested in like cases;” that the lands and premises constituting allotment No. 4, should be and the same was thereby vested “in the said Benjamin Collins, as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Sarah J. Kortright, during the term of her natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Sarah J. Kortright, during the term of her natural life, and after her death to pay over and divide the principal thereof, to and between the said Gouverneur Kortright and Lawrence M. Kortright,' or their lawful issue, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the lands and premises constituting allotment No. 5 should be and the same was thereby vested “in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Lawrence M. Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Lawrence M. Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof, to and among the lawful issue of the said Lawrence M. Kortright, or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the said lands and premises constituting allotment No. 6, should be and the same was thereby vested “ in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Gouverneur Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Gouverneur Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof to and among the lawful issue of the said Gouverneur Kortright or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” and that the said Benjamin Collins “ be and he is hereby appointed trustee of the said personal property now remaining in the said estate, and he is hereby authorized to receive from the administrators with the will annexed of -the said Nicholas G. Kortright, the said personal property as the same shall be ascertained and declared by the decree of the surrogate of the county of New York, on the final settlement of the accounts of such administrators before such surrogate, and that he pay therefrom: First.—The fees, costs and allowances hereinafter awarded and allowed to the said referee and commissioners, and to the plaintiff’s attorney and guardian ad litem. Second.-—The taxes and assessments upon the real estate in the city of Brooklyn herein-before referred to. And Third.—A certain mortgage hereinbefore referred to upon the said premises on the northeast corner of Madison avenue and Twenty-eighth street in the city of New York, or so much thereof as the said personal property might be sufficient to pay.”</p> <p>Sarah J. Kortright intermarried with one Taylor and was thereafter known as Sarah J. Taylor.</p> <p>Thereafter an order was made at the special term of the Supreme Court on the 3d day of August, 1882, in a matter entitled “ In the matter of the petition of Benjamin Collins, Sarah J. Taylor, Gouverneur Kortright and Lawrence M. Kortright for the discharge and release of Benjamin Collins, as trustee,” whereby it was ordered, “ that upon the said Benjamin Collins conveying and paying unto such trustee or trustees as may hereafter be duly appointed by this court in his place and stead all his rights, titles and interests as trustees of, in and to all and singular the trust estate, both real and personal, with which the said trustee is seized and possessed of as trustee, that he be and he hereby is permitted to surrender his trust and is released and forever discharged of and from all liability or reclamations by the said petitioners, or either of them, by reason of his acts and conduct as such trustee.”</p> <p>Thereafter, on the 24th of November, 1882, an order was made on the petition of Gouverneur Kortright, appointing Lawrence M. Kortright (upon giving a bond for $10,000) trustee under the will of Nicholas G: Kortright, to hold the share (being the premises included in allotment 5) set apart by the commissioners in partition for the benefit of said Gouverneur Kortright, and to be held in trust for his benefit. On the same date an order was made on the petition of Lawrence M. Kortright, appointing Gouverneur Kortright (upon giving a bond for $10,000) trustee under the will of- Nicholas G. Kortright, to hold the share (being the premises included in allotment 6) set apart by the commissioners in partition for the benefit of Lawrence M. Kortright, and to be held in trust for his benefit.</p> <p>The Supreme Court had full jurisdiction over the persons of the defendants in the partition action, and all the orders in .that action were made on proper notice to them.</p> <p>On a sale made by Lawrence M. and Gouverneur Kortright, as trustees, certain of the premises included in allotments 5 and 6 were purchased by the plaintiff, who objected to the title on the ground that they were not vested with any powers of sale.</p> <p>The cause was tried at special term. On the trial the plaintiff, among others, made the point that Lawrence M. and Gouveneur could only get a power of sale under the orders appointing them, and that those orders did not confer such power.</p> <p>The judge at special term held with the plaintiff on this point, writing.</p>

Appeal by defendants from judgment for plaintiff, entered upon an order sustaining demurrer to a defence set up in the answer. Statement of the case bX the Court.

Appeal by plaintiff from judgment dismissing complaint entered on finding and conclusion of the court, in equity. The facts sufficiently appear in the opinion.

Appeal by defendants from an order amending judgment. Statement of the Case by the Court. The action was in equity and the whole issue was of fact (§ 964). The decision of the court was “to direct the judgment to be entered ” (§ 1021), and the clerk was to enter judgment as directed therein (§ 1228).

<p> Conversion of goods, damages for. </p> <p>In the case at bar, the goods in question were taken by defendant as the assignee for the benefit of creditors of one John W. Dexter. A demand for the goods was alleged in the complaint and admitted by the answer, but it was shown on the trial that at the time the demand was made the goods had been destroyed by fire, without any fault or negligence on the part of the defendant. Held, that a demand and refusal to deliver, do not establish a conversion where at the time of such demand the property in question is not in existence, and that the accidental loss or destruction of an article by one lawfully in its possession, is nota conversion, and the complaint was rightfully dismissed.</p> <p>After the plaintiff had rested her case and the defendant had moved the dismissal of the complaint and the court had announced its intention to grant the motion, the plaintiff offered to show that her assignor, to whom she alleged the goods in fact belonged, was driven away from the house in which the goods were stored and from which they were afterwards taken by the defendant, and that the defendant knew of this fact before the assignment was made to him, and before he took the possession of the goods. The court below refused to allow the plaintiff, at that stage of the proceedings, to show this fact. Held, that under the circumstances of the case, this refusal was not error.</p>

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

<p>Appeal from a judgment dismissing the complaint upon a trial before the court and a jury.</p>

<p>Warrant of attachment, issue of, when causes of action exist that are specified under section 635 of the Code of Civil Procedure. Proof of the same required, etc.</p> <p>The proof required to be made by section 636 of the Code of Procedure, is legal proof or evidence, and the judge has no right to be satisfied with less, and it should be by affidavit stating facts, not conclusions. A verified complaint if regarded as an affidavit must fulfil the requirements of other affidavits as to the manner of stating the facts. In any event the facts established by the affidavits, should fully sustain the claim made upon them before the plaintiff can be entitled to an attachment. A plain case must be made by reasonable and satisfactory proof. Held that the order of the special term, in this case, vacating the attachment, should be affirmed.</p>

<p>Appeal from a judgment entered upon the verdict of a jury.</p>

Statement of the case by the Court. On Oct. 15th, 1885, the defendant engaged the plaintiff as a salesman from that day until Nov. 1, 1886, at the rate of §3,000 per year. The plaintiff entered upon the employment on the day of the engagement and was paid at the rate of §3,000 a year until the 1st of November, 1886.

<p> Envoy extraordinary and minister plenipotentiary—International law, rule of as to immunity from, service of civil process in the country to which the minister is accredited. </p> <p>In this case Guzman Blanco, the defendant, was an envoy extraordinary and minister plenipotentiary, duly accredited from Venezuela to France, and recognized as such by the United States; and while in the city of New York, and awaiting early means of conveyance from New York to France, was served with a summons in this action, and failing to make any appearance in the action a judgment was recovered against him for the sum of $2,194,536, and a motion was made at special term in his behalf to vacate and set aside the judgment and to vacate and set aside the service of the summons in this action on the ground, that when the summons was served he was an ambassador, and as such, not amenable to any civil action brought against him in this state.</p> <p>Held, that the service of the summons in this action, made upon Guzman Blanco, and the judgment subsequently entered against him based upon said service, are of no force, and are void, and are therefore vacated and set aside.</p>

Statement of the case by the Court. On December 3, 1885, the plaintiff in this action recovered a judgment in this court against the defendant, for the sum of $2,511.82, and that judgment was duly filed and docketed on that day.

<p>This is an action for damages by reason of personal injuries. Three points were raised on appeal.</p> <p>First:—That the trial judge erred in refusing to charge as requested “ that the jury cannot upon the testimony in the case allow any damages for medicine, lotions or medical material.”</p> <p>Second:—That the trial judge erred in refusing to charge as requested: “ That prior to the adoption of the Code of Procedure in this state*, or prior to the present constitution of this state, the plaintiff:, being a party, was not a competent witness in his own behalf, and that it is under that constitution he is enabled to be a witness, and the question as to his credibility is entirely one for the jury, and that they have a right in considering the case to wholly reject his evidence; ” and erred in charging in this regard as follows : “ I charge you without any reference to the constitution that the plaintiff’s testimony, as that of every other witness, is to be considered by you and believed or disbelieved according as your good sense and judgment govern you‘”.</p> <p>Third:—That the trial judge erred in refusing to strike out the testimony that plaintiff immediately after the accident said “ Take these splinters out of my leg; take these splinters out.”</p>

<p>Appeal by defendants from order vacating order requiring the plaintiff to deposit with the clerk the agreement upon which the cause of action is based, or etc.</p>

The action was one at law. The original plaintiff died more than ten years before a motion to revive was made. The motion was denied at Special Term on the ground that too much time had elapsed; and an order was entered denying the motion.

This is an action of ejectment. A verdict was directed for the plaintiff, and exceptions were ordered to be heard at the General Term.

<p> Appeal—On a second appeal, the law as expounded on the first must govern, there being no essential differences in the facts. </p>

<p> Trial, conduct of—Rulings on objections to questions, and striking out answers. Uncertainty of questions, ground for their exclusion—Statement to Physician if not appearing tí be made for his professional guidance, and the time when made not appearing, is inadmissible—Where on a party's examination, a witness has denied having had any conversation with another witness on a certain subject, it is in the discretion of the trial judge whether on the same party's examination, he will allow further interrogation as to a conversation on that subject. The necessary consequences of a future or conditional state of affairs cannot be asked of a witness. Credibility of witness, assuming that of two loitnesses for the defence one or the other must be responsible to the defendant by reason of an accident complained of occurring through the defective condition of the sidewalk in front of his particular premises, yet that fact cannot be used by the jury to estimate the credibility of either in particular, therefore a refusal to charge that the defendant has a right of action over against the owner of the property in front of which the accident occurred for the reimbursement of any verdict rendered, is not error. Instances of irresponsive ansivcrs. </p>

<p> Examination of party after issue and before trial, allegations not necessary in moving papers. </p>

<p>Appeal hy defendants from judgment entered upon verdict for plaintiff, as directed by the court.</p>

<p>Appeal from a judgment entered in favor of plaintiff, upon a verdict of a jury.</p>

<p>Appeal by plaintiffs from a judgment entered on a verdict directed by the trial judge in favor of defendants.</p>

Appeal by defendants from judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.

Appeal by Ann M. Philipe, executrix of the will of Antonio Philipe, denying her motion to open a default taken against Antonio Philipe in his lifetime, and for leave to prosecute the action and to defend and contest the validity of a counterclaim contained in the answer.

<p>Appeal by plaintiff from a judgment dismissing her complaint in an action brought-to recover damages from alleged negligence of defendant’s servants.</p>

<p>Appeal from a judgment entered on the dismissal of the complaint at trial term, and from an order granting an extra allowance.</p>

<p>Appeal from an order denying plaintiffs’ motion to strike out certain portions of respondents’ answer.</p>