Volume 25 — Abbott's New Cases

Appeal by defendant from a judgment of the General Term of the Supreme Court for the first judicial department which affirmed a judgment in favor of plaintiff rendered after a trial at circuit. The action was brought to annul the defendant corporation. [The decision of the circuit court with the opinions rendered is reported 22 Abb. AT. C. 164].

Proceeding under 3ST. V. Consolidation Act (Z. 1882, c. 410, §.898) to reduce or vacate an assessment because of fraud or substantial error. The order appealed from denied the petitioner’s application.

Ellen T. Hayes .brought this action against Charles J. Nourse, Jr., to recover the amount of a deposit made upon an auction sale of real estate by the defendant, upon the ground that the title was not marketable.

This was an action for partition. The issue lay between the defendant Maria ft. Withington and her brothers and sisters, co-defendants. She claimed that under her father’s will she was entitled to one half interest in the property left by him. Her brothers and sisters contended that the testator died intestate as to the same. The issues were tried at special term and judgment was entered against the said defendant.

<p>.Pleading; right to compel reply. ] A plaintiff will not be compelled to-serve a reply to new matter in an answer which sets up the statute of limitations and an adjudication in another State, which is claimed to constitute res judicata.*</p>

<p>1. Pleading; single cause of action.] A complaint for damages for false representations, inducing plaintiff to purchase stock in a corporation and to render services to it, states but a single cause of action having two items of damage.</p> <p>2. The same ; making definite and certain.] In such case the plaintiff will not be required, on motion, to make more definite and certain the allegations as to the items of damage sustained. The remedy is by motion for a bill of particulars.*</p>

<p>Trial by the court in an action for specific performance ■of contract to exchange real property.</p> <p>The opinion sufficiently states the facts.</p>

Action for goods sold and delivered by plaintiff to defendants. Defendants were contractors, and at the time of the alleged sale were engaged in building an aqueduct for the City of Sew York, under a contract. The other facts •appear sufficiently in the opinion.

<p>1. Pleading; complaint for negligence will not sustain recovery for nuisance.] A complaint for damages for personal injuries occasioned by the negligence and carelessness of defendant in failing to keep a sidewalk in safe and proper condition, will not sustain a recovery on the ground that defendant unlawfully interfered with the previous condition of such sidéwalk, rendering it unsafe and a public nuisance.*</p> <p>5. Amendment.'] An amendment changing a complaint for negligence to one for the creation of a nuisance, entirely changes the ground of action, and will not be allowed on the trial, or subsequently upon the argument of an appeal.†</p>

<p>Evidence ; broker's action for commissions.] In a broker’s action for commissions upon the sale of real property, where the defendant claims that by the terms of plaintiff’s employment he was to receive his commissions only upon performance by the purchaser, defendant may, for the purpose of showing that the purchaser’s failure to perform was not due to defendant’s own default, prove that an outstanding lease of the premises was known to such purchaser, who agreed orally to take subject to it, for the rule excluding parol evidence to vary a writing does not apply in such case in favor of the plaintiff, who was not a party to the writing.</p>

<p>1. Pleading; demurrer reaches first bad pleading.] In determining a demurrer to one of the later pleadings in an action, the court should consider the sufficiency of all the prior pleadings and render judgment against the party who has interposed the first insufficient pleading. Where, therefore, upon a demurrer for insufficiency to a reply to a counterclaim, the court finds that the reply is sufficient, but that the counterclaim and the complaint are both defective, judgment should be rendered in favor of the defendant upon the insufficient complaint.*</p> <p>2. The same; demand for judgment on counterclaim.] It seems that a plea of a counterclaim is defective in substance where it contains no demand for judgment in defendant’s favor against the plaintiff.</p> <p>3. The same ; complaint by assignee of contract for specific perform-an-ce.] A complaint for specific performance in an action by an assignee of a contract for the sale of certain securities by plaintiff’s assignor, which alleges that such assignor, (but not plaintiff) is ready and willing to transfer the subject of the sale to defendant, upon the latter paying plaintiff therefor, is insufficient, where the assignor is not a party to the action. It seems that in such case the assignment should have included the subject of the sale or the assignor should have been united as a party.</p>

The action was bought by the Rector, Church-wardens, etc. of St. Stephen Church, against James Blackhurst to recover possession of its corporate seal, which the complaint alleged had been wrongfully taken into the possession of defendant and detained by him.

Application by Thomas Gommerford Martin, for a peremptory mandamos, requiring the W. J. Johnston Co., Limited, tp allot? him, his attorneys or representatives, to examine and inspect and take extracts from the records and books of account of said company, and the book kept by said corporation containing the names of all persons who are, or since its incorporation have been, stockholders in the company, and showing their places of residence, number of Shares of stock held by…

<p>This was an application by the petitioner for leave to mortgage part of its real estate. The petition was as follows:</p> <p>To the Supreme Court of the State of New York:—</p> <p>The petition of the rector, wardens and vestrymen of the Church of the Messiah, a Protestant Episcopal Church in the city of Brooklyn, respectfully represents :</p> <p>I. That the name of the said corporation is, The Rector, Wardens and Vestrymen of the Church of the Messiah, and the names of its trustees and its principal officers and their places of residences are as follows : [statmg them.]</p> <p>II. The object or purpose of the incorporation of said church is the propagating of the Christian Religion, and said church as a religious association is duly incorporated under the Act, entitled “ An Act to amend the acts to provide for the incorporation of religious societies so far as the same relate to churches in connection with the Protestant Episocopal Church,53 passed May 9, 1868.</p> <p>III. As such corporation they are the owners of the following described piece or parcel of land, situated in the twentieth ward of the city of Brooklyn, N. Y., bounded and described as follows : [description.]</p> <p>I"V. Tour petitioners further show that the interests of the said corporation or association will be promoted by the mortgage of the real property above specified, and the reasons therefor are as follows :</p> <p>Tour petitioners are desirous of mortgaging said real estate in the sum of twenty-five thousand dollars ($25,000), payable in one year with interest, and the Dime Savings-Bank of the city of Brooklyn, X. T., has agreed to lpan said sum to your petitioners upon the security of their bond add mortgage upon said property in the usual form; your petitioners wish to borrow said sum upon the security of said mortgage because they have commenced the erection of a chapel upon said premises which adjoin the church edifice of your petitioners ; the necessities of your petitioners’ congregation require the speedy completion of said chapel, and the contract for its erection calls for payments at stated intervals; your petitioners have not sufficient funds to complete said chapel and fulfill the terms of said contract, and said mortgage is to be placed for the purpose of raising the-necessary funds therefor; it is expected that said mortgage will be paid at an early day from -voluntary contributions by your petitioners’ congregation. Xo real estate or interest in real estate, belonging to said corporation, has ■ been sold or mortgaged under any order of the-court at any time within five years last past.</p> <p>V. That at a regular stated meeting of the trustees of' the church of the Messiah, held July 17, 1890, more than two-thirds of said trustees were present, and a resolution was unanimously adopted directing that this application be made. A copy of said resolution, attested by the church clerk, is. hereunto annexed and made a part of this petition.</p> <p>VI. That the market value of the real property of said corporation or association is one hundred thousand dollars i ($100,000), upon which there is no encumbrance ; that said corporation or association has no outstanding debts or liabilities ; that the cash value of its personal assets is twenty thousand dollars ($20,000).</p> <p>VII. Tour petitioners show that they have no funds wherewith to complete said chapel, and it is - proposed to apply the avails of said mortgage, when received by them, to payments for the erection of said chapel, as aforesaid.</p> <p>VIII. Your petitioners therefore ask that an order be ■entered giving them leave to mortgage the real estate above described upon the terms aforesaid, and that the moneys .realized from such mortgage be applied as above specified.</p>

The Union Dime Saving Institution sued Florente Feltz, and Otto Bauman on a bond executed on January 23, 1879, by the defendant Bauman, as principal, and the defendant Feltz, as surety. Held: that the principal was appointed to a new office; that he ceased to be a clerk or book-keeper on his appointment as teller, and that for his acts as such teller the sureties were not liable.

Ajjplication by William Van Valkenburg for a writ of mandamus requiring the respondent, Theodore Myers, the comptroller of the city of New York, to pay the relator’s salary weekly.