Volume 25 — Howard's Practice Reports

These cases were duly referred to the Hon. William B. Weight, as a referee, to hear and determine. After numerous adjournments and some delays the briefs were finally submitted late in November, 1862. The statement of the referee (verified by the affidavit of counsel) is that ‘it was agreed by the parties, at the hearing before him, that he might decide the cases within such time as his official engagements would reasonably permit.

Maria P. Devin presented a petition to the late surrogate of the city and county of New York for the appointment of N. B. Laban as administrator of the goods, chattels and credits of Henry 0. Patchin, late of said city, deceased. Mary Grace Patchin, otherwise called Mary Grace Melvin and Mary Grace Sparks, appeared before the surrogate and claimed to be the widow of the deceased, and asked to have letters of administration upon his estate granted to her.

<p>Stocks of the United States, constituting a part or the whole of the capital stock of a bank organized under the banking laws of the state of New York, are not subject to taxation by the state. (Reversing the decision in this case, and overruling the decision of the court of appeals of New York9 in the case of People ex rel» Rank of Commonwealth agt. Commissioners of Taxes9 #c., 23 2V. Y. R.9 192.)</p>

<p>The statement male in the confession of judgment, in this case was, substantially, that the indebtedness arose for lumber sold and delivered by the plaintiffs to the defendants in the year 1855, and before the date of the statement, (which date was October 15, 1855;) that the quantity of lumber so sold and delivered during that time was about 685,000 feet, and that the same was of the value of about §6,500, and that the amount remaining due and unpaid from the defendants to the plaintiffs for said lumber was §3,500, held, that the statement was sufficient. A review of the several reported cases taken, concluding with the opinion that, in the supreme court, some of the judges and courts have carried the doctrine on the subject of the statement of facts, out of which the indeotedness arose, to an unwarrantable degree of strictness.</p> <p>(It would seem that the case of Neusbaum agt. Keim, (24 N, Y. R., 325,) decided since the decision in this case, would sustain this decision.—Rep.)</p>

<p>Appeal from judgment on report of a referee.</p>

<p>This court has the power to collect a judgment against a married woman for costs, by execution, whether that power be based upon section 287 or not. The execution, however, must direct the collection of the amount stated in it, out of her separate estate.</p>

In 1854, Samuel Bowne delivered his bond to defendant, conditioned to pay $8,000, with interest, in August, 1857. The bond was given to secure a loan of $8,000 to Bowne, for which the defendant gave his check upon the Chemical Bank, payable in gold, at the option of Bowne. As a further security, Bowne and his wife executed a mortgage on certain land in Richmond county.

This action was commenced in a justice’s court. The plaintiff recovered a judgment of $159.50 damages, and $2.80 costs. The defendant appealed from this judgment, to the county court of Montgomery county, under the provisions of section 311 of the Code, as amended in 1862, and specified, as therein required, five several particulars, in each of which he claimed that judgment should have been more favorable to him.

<p>Any enlistment of one, in the regular army or in the volunteer service, who has attained the age of eighteen years is regular and valid, and requires no consent of natural or legal guardians.</p> <p>Where a recruit on his enlistment swears that he is eighteen years of age, the act of congress of February, 1862, declares that the oath shall be conclusive as to his age. But where it appears that the recruit was under eighteen years when he took the oath and enlisted, the act cannot be held to estop the master or parent who sets up a claim to the minor and a right to his services, from asserting it through the proper legal tribunals. The act is only conclusive as between the government and the recruit, in such case. (This agrees with the case of Webb, 24 Horn., 247.)</p> <p>An infant can, in law, make no binding contracts, and the government can only deal with him in subordination to the general principles of law, and in accordance with the rules it has itself prescribed. Inside of the age of eighteen years the government can make no contract with a recruit, and although a parent or guardian may waive his rights to the minor, and as to thcpast be concluded, the claim is not lost by mere delay, nor, perhaps, by any act which does not carry with it a clear indication of consent and recognition, both past and prospective.</p> <p>Where charges for desertion have been preferred against a recruit, who has served in the army, and he is under arrest, awaiting the action of a court martial, the parent or guardian cannot make an application on habeas corpus for his discharge, and take him from the jurisdiction to which he has voluntarily subjected himself, on the ground that he is under eighteen years of age, and took a false oath when he enlisted. When the government has vindicated its authority, such an application may be sustained.</p>

James Collins, Jr., a resident of New Jersey, came to New York, and enlisted in the naval service of the United States on the 16th day of May, 1863, without the consent of his parents, and was put on board the receiving ship North Carolina, at the Brooklyn navy yard, commanded by captain Mead. Judge Scrugham, a supreme court judge, granted a writ of habeas corpus, returnable before Judge Garrison, at his chambers, city hall, Brooklyn.

<p>In an action in justice’s court, plaintiffs recovered judgment for $140, and costs. Defendant appealed, and in his notice of appeal claimed that the judgment should have been more favorable, in that it should have been in his favor. On trial on appeal, plaintiffs recovered a verdict for $68.59.</p> <p>Hold, that defendant gave plaintiffs no opportunity to correct the judgment, except by an entire reversal, and therefore plaintiffs were entitled to costs on the appeal.</p>

<p>Appeal from judgment of general term of the supreme court.</p>

This was an appeal from an order made by the county judge of Genesee county, in proceedings supplementary to execution, denying the plaintiff’s motion for a receiver of the property of the defendant Curtiss.

This was.a motion to vacate the order of arrest holding defendant to bail in $44,000.

The plaintiff, a judgment creditor of the firm of E. Stone & Co., brought this action to set aside as fraudulent and void a transfer of their stock of goods to the defendants, Stone and Hall.

<p>The facts will sufficiently appear in the opinion of the court.</p>

Upon the death of a sole or surviving trustee of an express trust, the trust vests in the supreme court; and it is the duty of the court to appoint another person as trustee to complete its execution. The proper mode of appointment of the new trustee, it being necessarily summary and not by formal bill, is by application by petition under the statute.

<p>Where there is no agreement between attorney and client as to the amount of the attorney’s compensation for conducting the proceedings in the action to judgment* the court will* if the circumstances warrant it* allow the attorney better compensation than the taxed bill of costs will afford.</p> <p>And such compensation cannot be defeated by an immediate assignment of the verdict by the client to a third party* and payment'to the attorney of the taxed bill of costs* and a demand for delivery over of the papers in tjie cause to another attorney.</p>

<p>This action coining on to be tried before Chief Justice Bosworth and a jury, and the plaintiffs having produced evidence in support of the averments in their complaint and rested their case, upon motion of the counsel for the defendant, the court ordered a dismissal of the plaintiffs’ complaint against the objection of the said plaintiffs, and the said plaintiffs’ counsel then and there duly excepted to said dismissal and refusal to submit the case to the jury then and there impanneled to try the same; whereupon the court ordered the questions of law arising on the exceptions taken at the trial—the case presenting only questions of law—to be heard at the general term in the first instance, and the entry of the judgment in the meantime to be sus-. pended.</p>

<p>The act of 1850 (Sess. Laws 1850, p. 81) providing for the appointment oí harbor masters in the city of New York, and their fees or compensation SfC.3 does not conflict with the provisions of the constitution of the United States giving power to congress to collect duties and regulate commerce.</p> <p>The harbor masters3 fees are exacted, not for entering or anchoring in the harbor, but using the soil ee by loading or unloading, or making fast to wharves.53 They are in their nature and intent local port charges for services rendered to vessels and cargoes in port.</p> <p>It is no part of the design of the law to levy a tonnage duty or to lay an impost on imports or exports under the name of fees or compensation to be paid to the harbor masters.</p>

<p>Where a surety signs with his principal the usual application to a gas light company for a supply of gas at a designated house, he is only liable to the company for the gas furnished there to his principal. He is not liable for any gas furnished to the successor of the principal, after a change in the proprietorship of the house, even though the company has had no notice of a change of proprietors.</p>

<p>Where a married woman purchased certain farming stock and implements upon a certain farm, and gave a chattel mortgage thereof, signed by herself and others as security for the purchase money, and on the next day purchased said farm as her separate estate,</p> <p>Held, in an action to charge her separate estate on failure to pay the purchase money for said chattel property, which property it was alleged she had converted and disposed of, that there was no equitable principle upon which a court should enforce the payment of the plaintiff’s debt out of the separate properly of the defendant generally. The fact was not found that the chattels were purchased and the debt incurred by the defendant for the benefit of her separate estate or any particular part or portion of it.</p> <p>Resides, the plaintiff had a remedy at law on the guaranty of payment annexed to the chattel mortgage.</p>

The action was by a judgment creditor tq set aside an assignment in trust for the benefit of creditors, made by Daniel 0. Salmon and Dwight. Salmon to Cornelius Shirley and Joseph A. Scoville, upon the ground that it was fraudulent as to creditors. The assignors were copartners, and the assignment was of all their property, copartnership and individual. The amounts in value respectively of the individual property of the assignors, conveyed by the assignment, were unequal.

<p>Motion to set aside a writ of peremptory mandamus for irregularity.</p>

<p>The act of April 9, 1860, conferring authority on the defendants to construct, operate and use a railroad (known as the Seventh Avenue railroad) for the conveyance of passengers for compensation through, upon and along certain streets and avenues in the city of New York, is not an invalid exercise of legislative power in the absence of any constitutional inhibition or restraint.</p> <p>The constitutional inhibition which forbids the taking of private property for public use <e without just compensation,” does not apply on the ground that the act makes no provision for compensation to the corporation of the city or to the owners of lots fronting on the streets, because,</p> <p>1st. If the corporation owns the streets—if the absolute fee be in the corporation, and it assents to the construction of the railroad track, as it is alleged they will, it removes any constitutional objection to the law.</p> <p>2d. The plaintiffs, other than the people, have no property, estate or'interest in the land forming the bed of the streets in front of their respective premises to be protected by the constitutional limitation upon the right of eminent domain, because the 178th section of the act of 1813, relating to the city, provided for the <e relinquishment of the lands and premises” constituting such streets, by the original proprietors, and that, upon the final confirmation by the supreme court of the report of the commissioners of estimate and assessment, the corporation should become and be seized in fee simple of said lands and premises. Thereafter no property, estate or interest in the land included in the streets opened under the act, remained in the adjacent proprietors,</p> <p>3d. But the streets in question are not owned by the corporation of New York. They cannot sell or dispose of them, or even divert them to private use. Any and all title or interest which the city has in them is held in trust for public use ; is public property, and not private or municipal. The city corporation has no property in the streets of a character to be protected by the constitutional limitations upon the right of eminent domain; consequently no property in the soil of the streets to be constitutionally protected against the acts of the state in regulating their use,'</p> <p>All public streets or highways are for the use of the people of the whole state9 whether located in town or country. The interest in such use, or the ownership thereof, is publici juris; and the power of governing and regulating such uses is vested in the legislature as the representative of the whole people,</p>

In 1851, the defendant, Hiram Hyde, of Truro, Nova Scotia, borrowed of James G. C.ogswell, of Halifax, £3,000, Nova Scotia currency, pledging as security four certificates representing 120 shares of the capital stock of the American Telegraph Company (a corporation of the state of New York) of the par value of $12,000.

<p>A motion for a reargument of an appeal will not be granted where there was a conflict of evidence—the plaintiff and defendant being the only witnesses—in the court below, upon which the verdict and judgment were rendered.</p>

<p>A right of action for carelessly and negligently setting fire to and burning up grass and fences, and hay stacked upon a farm, is assignable. (An interesting review of rights of action xmder the statute which do and do not survive and go to the executor and administrator.</p>

The complaint alleges that at certain times therein mentioned, the defendant, by himself and agents, &c., broke and entered plaintiff’s close, in town of Durham, Greene county, and then and there cut down trees and timber of plaintiff, growing thereon, and exposing standing timber to the wind so that it was liable to be blown down and injured. The defendant’s answer, first, admitted expressly that the land and premises were the premises of plaintiff.

This was an action to recover of tlie'defendant (a bank in Boston) $300 in bills of eastern banks sent to that bank by the plaintiffs, a firm of brokers in this city, through the Park Bank for redemption. The action was brought to trial at the November circuit, 1860, before Sutherland, J., and a jury.

The mortgage sought to be foreclosed in this case, and the bond accompanying the same, on their face purported to secure to the Home Insurance Company the payment of the sum of $4,000, with interest.

The relator was admitted to the practice of medicine and surgery by the New York Medical College, and regularly awarded his diploma by the faculty thereof, on the 28th day of February, 1854.

Appeal by plaintiff from taxation of the two defendants’ respective bills of costs, who each appeared by different attorneys, on a reference to ascertain damages.

<p>Where the general term, on a. common law certiorari, reversed a decision of a county judge and referees upon the question of laying out a private road, without any directions as to costs, and a judgment was entered with costs against the county judge and referees and the appellant who brought the appeal to the county judge, from the decision of the commissioners of highways,</p> <p>Held) that the judgment was irregular and unauthorized—there should have been a special application to the court for the award of costs. Such application should properly have been made at the general term / although the special term has unquestionably authority to hear such a motion.</p> <p>The special term on motion, having corrected the judgment of the general term by allowing costs against the appellant who brought the appeal from the commissioners of highways and whose lands were taken for the road, apd disallowed costs as against the county judge and referees;</p> <p>Held) on appeal from the order of the special term that the general term would not review the decision of the special term, as the question was one resting in the dh - cretion of the judge holding special term.</p>

<p>Where it was alleged in the complaint that the defendant carried on a lucrative business as a butcher in Avenue A, in the city of Mew York, at Mo. 248, and on the 20th Feb., 1861, executed to the plaintiff a bill of sale (copy annexed) for the consideration of §220, the store fixtures and several designated articles of personal propcty therein, as a butcher’s shop, but without describing where they were, or otherwsse identifying them; and it was also alleged that the defendant, on the 20th Feb., 1861, executed to the plaintiff an agreement (copy annexed) whereby the defendant agreed with the plaintiff not to <{ buy or keep a butcher’s shopf within six blocks of Mo. 248 Avenue A, in the city of Mew York, during the next ten years,” averring that by such bill of sale and agreement the defendant intended to and did sell to the plaintiff the good will and patronage of the busi~ ness3 and then averred a violation by the defendant of such agreement, by opening a butcher’s shop within one block of that kept by the plaintiff; and the defendant admitted in his answer the execution of the bill of sale and the delivery of the articles mentioned in it, for the sum of $220, and alleged that it expressed all that was intended tobe conveyed; that the second instrument was executed after the bill of sale and delivery of the property, and was separate and distinct; that it was without consideration; that no note or memorandum expressing the consideration was in writing, signed by the party to be charged, and that the same was void under the statute,</p> <p>Heldy that the stipulation not to keep another butcher’s shop was evidently void within the statute of frauds, if it stood alone; and that the bill of sale was equally ineffectual, as it did not describe the property sold, and would have passed no title had not the property been delivered; but the evidence showed that they were attempts to reduce to writing an actual oral agreement between the parties, and that such agreement comprised the sale of the contents of the store kept by the defendant, and the good will of the stand} to be protected by the defendant’s undertaking for ten years not to interfere with such business by opening another similar shop, in consideration of the sum paid by the plaintiff.</p> <p>Judgment for the plaintiff, restraining the defendant fyom violating the agreement in question, and that he recover such damages as he shall be found by a referee to have sustained by past violation.</p>

In November, 1860, the defendants moved, at special term, to vacate an order of discontinuance entered ex parte by the plaintiff in this action, and to restore the said action to its condition before the entry of said order, and to stay proceedings in a second action between the same parties, alleged to be for the same cause of action.

<p>Where A. at the request of B. advances to him the amount of a month’s salary which B. has to earn, and agrees to pay at the expiration of the month, and takes an assignment from B. of his salary as security, it is usury for A. to take over 7 per cent, per annum interest on the amount of such advance.</p> <p>It is not the case where the lender of money assumes a rislc upon the loan by which repayment is hazarded, and upon which, it is not usurious though an excessive rate of interest is charged; but it is only the security which depends upon a contingency, B. being liable though the security should fail to yield anything.</p>

<p>A plaintiff who brings an action as receiver appointed under proceedings supplementary to execution, to reach the property of the judgment debtors which he alleges has been fraudulently assigned by them for the benefit of creditors, is not entitled to an order of injunction, nor an order for the appointment of a receiver of the property, umless he furnishes to the cowrt some evidence that he is entitled to the relief demanded in his complaint, or has an apparent right to the property.</p> <p>The ordinary affidavit of verification of the complaint, is not sufficient to establish as a fact> the positive allegation in the complaint that the assignment was made to hinder, delay and defraud the creditors of the assignors:</p> <p>Nor is an affidavit showing that the assignee is a non-resident of this state* and had employed the assignors to assist him in executing his trust* sufficient evidence of the fact that the assignment was made with the fraudulent intent alleged—there being no allegation in the complaint* nor any proof offered that the assigned property was not immediately delivered to the assignee and the possession continued in him. And the fact that he was a non-resident of the state did not tend to establish the fact that the assignment was made with a fraudulent intent.</p>

Application by plaintiff for an injunction pendente lite, to restrain the defendants from selling, disposing of, or advertising, or offering for sale, any soap (not manufactured by the plaintiff) called and known as “ Genuine Yankee Soap.”

<p>There is no limitation to the number of term foes in the court of appeals, which are taxable under subdivision 7 of section 307 of the Code. The limitation of term fees only applies to the circuits and the special and general terms.</p> <p>The judgment of the special term was rendered in favor of the defendant for his costs, amounting to $193.25; the judgment of the general term affirmed the judgment, with $54.80 costs of the appeal. The court of appeals affirmed the judgment of the general term, with costs, and ten per cent, in addition upon the “ amount of the judgmentheld, that the ten per cent, should be computed upon the amount of both the judgments below, but not upon the interest accrued on the judgments.</p>

<p>Where a married woman brought an action against her husband and others, for an accounting of the rents and profits of certain leasehold premises on which she claimed to have erected certain buildings -with her own means, (but not at her husband’s request, or upon any understanding between them,) and alleged that for upwards of two years past, her husband being a e< shiftless and improvident person, and unwilling to make any exertion for the support of the plaintiff and her child, left her and has not since resided on said premises,” and for five months had not contributed a dollar to her support or her child residing with her, although he has always received the rent of the premises; also alleged that her husband combined with one of the other defendants to defraud her of her right in the buildings and procured her removal from apartments occupied by her, and for that purpose he put such defendant in possession of a part of the buildings whereof the latter claimed to be landlord, and he had resorted to summary proceedings to dispossess the plaintiff, and that said defendant was irresponsible,</p> <p>Held3 1st. That the allegations in the complaint first referred to might be sufficient to sustain an action for the purpose of procuring a separation or maintenance. As auxiliary to such relief, if the husband was engaged in fraudulently secreting or disposing of his property in collusion with others, to evade the making a proper allowance for his wife, the court would have a right to interfere by injunction to prevent such disposition if not made, or annul it if made.</p> <p>2d. Unless the plaintiff had alleged and prima facie established a right in herself to the legal ownership of the premises, or a right of possession to a definite part thereof, or some equity to remain in possession separate from any rights as a wife3 the summary proceedings taken against the plaintiff’s husband alone were of no importance. The warrant issued on such proceedings would not authorize the officer to eject the plaintiff if she had any separate interest, without an opportunity of being heard in her defence.</p> <p>3d. There was nothing in the complaint or affidavits establishing any right of the plaintiff in the premises or claim to them, or the possession of any part thereof independently of any general rights she might have as a wife to a suitable maintenance. Her application of her means to build a house on them without any understanding with her husband, gave her no right in a lien on the premises, and did not afford any ground to sustain an injunction to protect her equitable rights.</p> <p>4th. The case being thus stripped of the aspect of an action to sustain an equitable right to the lease of the premises, or the possession of part thereof, brought against the legal owner and a fraudulent grantee, with notice of the rights of the equitable owtier, to whom the latter could never he tenant, could only be sustained upon the ground of a proceeding to enforce a maintenance. And that right would not give the plaintiff the privilege of selecting a particular portion of her husband’s property and insisting it should be set apart for her; on the contrary, the amount and means of maintenance, and the mode of securing it, is entirely within the discretion of the court. Complaint allowed to be amended.</p>

<p>A provision in the village law of the village of Cohoes, passed in 1855, reads as follows: ee § 96. No person shall sell or give any spirituous or intoxicating liquors within the bounds of said village upon the Sabbath day.” And after stating other provisions, it says: Every person offending against either of these provisions shall be subject to a fine of §25.”</p> <p>The general excise law of 1857 (§ 13) imposes a penalty of $50 for selling any strong or spirituous liquors in quantities less than five gallons without a license; and by § 14 a similar penalty for selling the same in any quantity to be drank in the seller’s house, shop, outhouse or garden; and by § 21 makes it a misdemeanor for any tavern keeper or licensed person to sell or give away any intoxicating liquors or wines on Sunday.</p> <p>Held3 that the provision in the village law might be upheld as a valid police regulation, applicable to that particular locality, without coming in collision with any of the provision of the general law; that the village law was not repealed by the general law by implication.</p> <p>Therefore held3 that the trial and convictiop. of the defendant, under the village law, for giving or selling spirituous liquors on the Sabbath, could be sustained where a verdict or judgment finding him guilty of giving away the liquor could not be properly set aside for want of evidence.</p>

<p>•A summons issued without a United States reveime stamp is irregular and void; and a subsequent affixing a stamp to it will not cure the defect. The act of congress, of July 1, 1862, requiring such stamps, is no improper interference with the powers of a state court. (This is adverse to the decision in Walton agt. Bryenth, 24 How. JPr.R., 357.)</p>

Appeal by defendants from a judgment in favor of the plaintiff, rendered at special term. It appears that the plaintiff obtained from the defendants a lease of a slip ; and it recites the resolution of the common council, on the 16th June, 1852, directing the leasing to plaintiff of the slip at the foot of Wall street, or so much thereof as belongs to the city.

Appeal by defendants, John L. Rowe, mortgagor, and • wife, and John I. Rowe, judgment creditor, from an order made by Justice Miller, at special term, denying their motion for a resale of the mortgaged premises sold by a referee under a judgment of foreclosure.

<p>Where the evidence at the circuit on questions of fact, necessary to sustain the plaintiff’s cause of action, is equivocal, and the judge, without being requested by the plaintiff to submit the cause to the jury, orders a nonsuit, to which the plaintiff takes an exception, the general term on appeal cannot review the decision upon the questions of fact, as no exceptions have been taken to such decision; consequently the nonsuit, being the application of the law to proved or ascertained facts, cannot be disturbed.</p>

<p>On a question of fact, where on the trial before a referee the witnesses contradict each other upon several material points, no other course can be pursued than to hold that the conclusion of the referee, in whose presence the witnesses were examined, is final.</p>

Appeal by defendant from a judgment in favor of plaintiff for the recovery of an amount of money paid to defendant by plaintiff, on a contract for the conveyance of real estate, upon finding that the contract had been rescinded by the parties, and adjudging that a specific performance of the contract could not be ordered.

This was an application on behalf of the defendant to be discharged from imprisonment as an imprisoned debtor. The records show that the cause of- action upon which the plaintiff recovered judgment was somewhat novel. It was technically called “ malicious trespass.” The defendant sought to collect a milk bill. The plaintiff tendered him all, and even more than he believed to be due; he demanded a still greater sum, and would not receive what was offered.

<p>In an action between husband and wife for divorce for adultery, one of them cannot be a witness against the other.</p> <p>Whatever construction, in other respects, may be given to § 399 of the Code, it does not affect the common law rule that husband and wife cannot be witnesses against each other.</p>

<p>A comty judge has power to grant an order, ex parte, to extend time to answer thirty days</p> <p>Such an order is not a stay of proceedings of the plaintiff for a longer time than twenty days, and therefore requiring notice under the provisions of sub. 6, § 401 of the Code.</p>

Appeal by defendants from an order of special term denying defendants’ motion to open their default taken at general term, and for leave to file exceptions and make a case, but with leave to renew the motion at general term after the dismissal of the appeal to the court of appeals.

<p>Appeal from judgment of county court of Niagara county reversing judgment of a justice of the peace.</p>

Statement of facts by the appellant. L. This was an action in equity brought for the purpose of compelling the defendant to pay the rents reserved in a lease, and to perform all the lessee’s covenants. Judgment was given for the plaintiff on a trial without jury at special term before Mr. Justice Davies, May 30, 1859. Exceptions were taken by the defendant; and, having made a case, the defendant appealed to the general term July 2, 1859. II.

<p>A married woman cannot be held to hail in an action of assault and battery, under the Code. The Code has not changed the law in this respect.</p>

<p>Tender bars an action to recover the debt only when pleaded9 and the amount thereof is paid into court, and notice thereof given in or with the plea.</p> <p>Where the plaintiff returned the defendant’s answer as a nullity, and assigned as reasons, that the answer was not accompanied with notice of payment of the money into court, and that it had not in fact been paid,</p> <p>Held, that the course pursued by the plaintiff was in accordance with the practice in force when the Code took effect; and there was no provision of the Code inconsistent with this practice.</p>

<p>Where, on a question of fact, the plaintiff swears one way, and two defendants swear directly the other way, (under the liberal provisions of the Code,) it is a conflict of evidence which cannot be reviewed on appeal—the conclusion of the court below on the question, though in favor of the plaintiff, isfvnal.</p> <p>Where the employment of the plaintiff was for a year, at the rate of $700 per annum, an objection by the defendants that the plaintiff could recover nothing until the termination of the year, is of no effect, where it appears that the plaintiff had received every month during the time he was in the defendants’ employ about the amount he would be entitled to at this rate per month.</p>

A writ of habeas corpus was issued in the above matter, by Judge Betts, on the 10th day of September, returnable on the 12th, and on the 12th adjourned to the 15th, for the purpose of allowing General Canby, the party on whom the writ was served, to make a return, and by order of the court the proceedings were further adjourned to the 19th instant, and prisoner was ordered to be confined in the Park barracks, city of New York.

This was an action against the defendants, who were sued as the owners of a schooner called the Ney, to recover damages for the alleged breach of a charter party, dated May 21, 1859, made in the port of New York, by Robert McKeag, the master of the vessel, to and in favor of the plaintiff, whereby the said McKeag undertook to carry a cargo of lumber from Alsop’s Mills, in the state of Florida, to Point-a-Petre in the island of Guadeloupe, on certain terms therein stated.

This is an action, by a receiver, appointed in supplementary proceedings, to reach the interest money paid by the defendants, as executors, to the judgment debtor. A bequest was made to the judgment debtor by the will of his father, the terms of which were, that the sum should be invested on bond • and mortgage, and the interest money paid by the executors, one of whom is the judgment debtor, to the judgment debtor.

This was an appeal from an order of Mr. Justice Daly, dissolving an ex parte injunction, obtained b-y the plaintiff against the defendants under these circumstances, viz; The defendant, Alexander McCotter, recovered a judgment against the city of New York for over $141,000, for damages for breach of contract by the city in not completing what is called “the Ward’s Island purchase.” 4'his case is now in the court of appeals.

The defendants being copartners in business, and nonresidents, made a general assignment of all their property, and directed the payment of certain preferred debts named in- a schedule annexed, then all other partnership debts of the assignors, and then the individual debts of the assignors, and to return the surplus.

This is an action brought by the assignee of the vendors of certain goods and merchandise sold by them to the defendant, to recover the value thereof.

This action arose in a justice’s court, and was in trespass, on a complaint that the defendant entered certain premises of the plaintiff, in Hebron, Washington county, and- wrongfully took and carried away the property of the plaintiff, without his consent, and injured the plaintiff ’s barn, and took out the stalls, and otherwise damaged the building, and took and carried away personal property to a large amount.

This is an action in the nature of a quo warranto, to test the title of the relator and the defendant to the office of county treasurer of the county of Lewis.

<p>Appeal by defendants from judgment at special term.</p>

The order appealed from in this case required the defendant to give or allow the plaintiffs to take copies of entries in a book alleged to be under his control, and in case of refusal precluded him from making certain defences or controverting certain facts alleged in the complaint. The action was brought against the defendant as president of a joint stock association consisting of more than seven persons.