Volume 26 — Jones & Spencer's New York Superior Court Reports

Appeal by defendant from judgment entered upon verdict of jury for plaintiff, and from order denying motion for new trial made upon the minutes.

<p>Appeal from a judgment, entered at trial term upon the verdict of a jury, and from an order denying defendants’ motion to set aside the verdict and grant a new trial.</p>

This cause was tried at a trial term before a judge and a jury. The court directed that the' complaint be dismissed, and ordered the exceptions to be heard in the first instance at general term.

This is an appeal from a judgment entered in favor of the plaintiffs on a verdict which was ordered by the court; and from an order denying a motion for a new trial'. The action was brought to recover for goods sold and delivered.

<p> Witnesses, what may be asked of them on cross-examination tending to show hostility to or bias in favor of one of the parties to the action—Damages sustained and recovery sought, how affected by statute of limitations. </p> <p>One of the questions presented by the exceptions of defendants was to the ruling of the court at trial term permitting witnesses to testify as to what, in their opinion, the rental value of plaintiffs’ premises would have been if the defendants’ railroad had not been constructed.</p> <p>Held, that the reasons and construction of the general term of the supreme court, of the First District in the Kinkele case, and the fact that there ‘is sufficient evidence to sustain the findings of damages, etc., in the case at bar, other than that to the admission of which exceptions were taken, justify the overruling of said exceptions in accordance with the suggestions contained in the McG-ean case. A witness may be asked questions on cross-examination, tending to show his hostility to or bias in favor of one of the parties to the action, and if he denies such hostility or bias, he may be contradicted by other evidence. Such is the general rule that has been so long established by the courts in the trial of cases that it should not be disturbed by the judges. Any change in the same should be left to the Legislature.</p> <p>Held also, that no recovery can be had for damages that arose more than six years prior to the commencement of the action; but all damages sustained within the said six years may be recovered under a lease that was made more than six years before the commencement of the action, but after the construction of the elevated railroads. Damages sustained during any particular period embraced within the six years, may be recovered.</p>

The action was brought to recover damages for a breach of a warranty of a lintel sold to plaintiff by defendant. The defendant by counter-claim sought to recover the purchase price of the lintel.

Appeal by defendant from judgment entered upon report of referee. Appeal by plaintiff from same judgment. The facts sufficiently appear in the opinion and the head notes.

The action was founded on the eighth clause in the following agreement: “ This Indenture, made the day of 1885, between Henry Johnson, of Flixton, near the city of Manchester, in the county of Lancaster, engineer, of the one part, and Charles Roberts Johnson, of the city of New York, in the state of New York, in the United States of America, engineer, of the other part. “ Whereas, the said Henry Johnson did obtain and now owns certain Letters Patent of the said United States…

<p>Trial—Defences not alleged in the answer when available—Lienor’s action against owner, what provable in defence—Evidence.</p> <p>Where a trial proceeds upon the assumption that the action is brought on a certain cause of action, which is not the cause of action alleged in the complaint, defences applicable to the causes of action upon which it is assumed that the action is brought, although not set up in the answer, are provable; .and if evidence tending to establish them is excluded under objection and exception it is cause for reversal.</p> <p>In an action brought by a lienor against an owner to recover for materials furnished to a contractor on the ground that at the time of tiie filing of the notice of lien there was a sum due by the defendant owner to the contractor, the defendant owner may show in defence, that the contractor had not completed the work and the amount of work uncompleted, the cost of completing the work and payments made to the contractor on account of the contract.</p>

<p> Burthen, of proof—General assignment, attack on validity of on the ground of an improper and illegal preference—Unauthorized endorsement—Trial, conduct of, plaintiff s requests for a direction in his favor, when not waived by introduction of further evidence. </p> <p>Where the validity of a general assignment for the benefit of creditors is attacked on the ground that the assignors endorsement on a preferred note (they being liable only by reason of the endorsement) was unauthorized, the burthen of proof to establish that the endorsement was unauthorized is on the attacking party, whether he be plaintiff or defendant.</p> <p>Evidence which would sustain a finding that the endorsement was not shown to have been authorized is not enough to uphold a verdict invalidating the assignment. To invalidate the assignment it must be affirmatively shown that the endorsement was unauthorized.</p> <p>Where at the close of defendant’s case the plaintiff’s counsel moves for a direction of a verdict in his favor which motion is denied and he excepts to such denial, he does not deprive himself of the benefit of his exception by endeavoring through the introduction of further evidence to have the case presented to the jury most favorably for his client.*</p> <p>Note.—This must bo taken with the qualification that such further testimony does not disclose facts, or is not of such a nature as to require a submission to the jury.</p>

Exceptions ordered to be heard in the first instance at general term.

Appeal by defendant from judgment entered upon findings and conclusions of law made by a judge sitting by consent of parties without a jury. The facts sufficiently appear in the opinion and the head note.

<p> Contract to manufacture, when non-conformity to the contract affords no defence to contract price, or ground for damages—Immaterial evidence, exclusion of questions tending to elicit, not error. </p> <p>Where articles manufactured under a contract are delivered to and received and used by the party for whom they are manufactured and no return or offer to return is made, they being of such a character as to be capable of being returned, the conclusion is that they were accepted as manufactured in accordance with the contract, and the party receiving them is concluded from claiming they do not conform to the contract and is liable for the contract price and is not entitled to any damages for a claimed non-conformity. The court deemed it unnecessary to consider as to a qualification to this rule, that where the defect complained of is not discoverable until after use or close inspection, a retention without complaint after the lapse of a reasonable time in which to discover the defect must occur before an acceptance as in conformity with the contract will be presumed, because the proof showed that' one of the defendants had full knowledge of what was claimed to be defect before the delivery of the articles.</p> <p>To sustain a counterclaim for 51 days delay in delivery, defendants put in evidence their books containing entries of the actual delivery; connected with these entries were blue lines; a witness testified that the entries were made long before the blue lines. Held, that it was immaterial to ascertain from the witness what the meaning of the blue marks was.</p>

Appeal by plaintiffs from judgment entered upon verdict for plaintiffs, and from order denying plaintiffs’ motion for a new trial, and from an order denying defendant’s motion for a new trial, which latter order recited that plaintiffs consented to the granting of the motion. The facts sufficiently appear in the opinion.

<p> Revivor, meaning of “successor in interest” in Section 751 Code Civil Procedure—Petition for order of revivor, insufficiency of—Expedient rule to require notice to be given to administrator or executor. </p> <p>The words “ successor in interest ” in section 757 Code Civil Procedure, refer only to the possessor of an interest which commences, or as to the right of enjoyment depends, upon the fact of a death occurring.</p> <p>A petition for a revivor which simply sets forth that the cause of action was duly assigned by an administrator or executor by an instrument duly executed and acknowledged is insufficient. The assignment itself should be set forth.</p> <p>It is an expedient rule to require notice of a motion to be given to any party who may be affected by the granting of the motion; especially in the case of a motion by one claiming to be the assignee of an administrator or executor for an order of revivor should notice be given to the administrator or executor.</p>

<p>Appeal by plaintiff from judgment entered upon a verdict rendered on the direction of the Court against him, and from an order denying plaintiff’s motion for a new trial.</p>

<p> Order for ike examination of defendant’s officers and boolts before complaint, when it may be vacated. </p> <p>The motion to vacate in this case was made, (1) upon alleged indefiniteness and insufficiency of plaintiff’s affidavit, and (2) upon affidavits and exhibits showing cause against the order. Held, that the power of the court to vacate the order for either of the reasons stated cannot be questioned.</p> <p>At this stage of the case plaintiff was bound to show that the examination was material and necessary to enable him to frame his complaint. The object of allowing the examination before the complaint or joinder of issue, is not to enable plaintiff to ascertain whether or not he has a cause of action, but to enable him to elicit material facts necessary to be known and incorporated into a statement of the cause of action which exists and he has. It was necessary that the plaintiff should have established the good faith of his application and the materiality and necessity of the examination, for the purpose of framing his complaint. This the plaintiff failed to do and consequently the order should have been vacated.</p>

<p>Appeal from judgment entered upon the decision of a judge at an equity term.</p>

<p> Action for money had and received by defendant for the use of plaintiff's assignor Defences to such an action. </p> <p>Plaintiff’s assignor, John E. Sehipper, made a draft on his brother Gerhard Sehipper of Bramen, Germany, for 1,500 Reichsmarks, equal to $360, payable to the order of the defendant at five days sight, and gave the draft to defendant to collect for him. Defendant undertook to collect the same and to pay to the said John F. Sehipper, the amount of the same as soon as he was advised by cable from the bankers in Germany, to whom the draft was to be sent, that it was paid. The draft was sent, presented and paid, and defendant advised of payment by cable, and afterwards received the money, yet defendant refused to pay the proceeds of said draft to John F. Sehipper when the latter demanded the same. The grounds of his refusal, as claimed by him, appear in the opinion of the court, which were held to be no defence to this action under the circumstances. That the case, as presented, is governed by the principles that usually apply between principal'and agent. The agent collected the money of his principal without incurring any responsibility except to pay it over to his principal according to the terms of his employment, and having refused so to do he is liable. It was therefore error to direct a verdict for defendant.</p>

<p>Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s 'motion upon the minutes for a new trial. • ■</p> <p>The facts sufficiently appear in the head note and opinion.</p>

<p>Appeal from judgment of dismissal of complaint.</p>

<p>Submission' in an agreed case. The facts sufficiently appear in the opinion.</p>

<p>Motion by defendant to vacate attachment on the papers on which it was issued, permitting an affidavit to be read in opposition, when not substantial error, Haebler v. Bernharth, 115 N. Y. f59,— effect of on question of sufficiency of affidavit. .</p> <p>Permitting an affidavit to be read in support of an attachment upon a motion to vacate upon the papers on which the warrant of attachment was granted, is not substantial error where the affidavit on which the warrant of attachment was granted, authorized its issue.</p> <p>In the case at bar the Court of Appeals, in 115 N. Y., 159, has held that the affidavit on which the attachment was granted was sufficient to authorize its issue.</p> <p>Under this decision the permitting the plaintiff to read an affidavit in opposition to a motion by defendant to vacate the warrant of attachment on the papers on which it was issued, was not substantial error.</p>

. Appeal from order allowing an amendment to the complaint. The complaint alleged that plaintiff is and was a corporation duly organized ; that Second Avenue between 123d and 129th streets in the city of New York, is a public highway laid out and opened under chapter 86 of the Laws of 1813, entitled “ an act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813 ; that upon-the opening of said avenue the corporation of the…

<p>Appeal by the defendant from a judgment entered upon a verdict rendered by the direction of the court at trial term in favor of plaintiff.</p> <p>Appeal in the same action by plaintiff from a judgment dismissing his complaint as to his second cause of action.</p>

<p>Corporation under “ Manufacturing Corporations Act of 18J/S, power to mortgage their property— Chattel Mortgage, sale thereunder.</p> <p>In this action the plaintiff seeks equitable relief, and prays that two chattel mortgages covering the personal property of the Star Printing Company, including printing presses, etc., be declared void, also for an injunction, etc. The judge at trial term dismissed the complaint on the merits. The case on appeal does not state that it contains ail the evidence, and, therefore, for the purposes of decision on this appeal, all the facts found by the trial judge must be assumed to be. true.</p> <p>The Star Printing Company was a domestic corporation, engaged in the publication of the “ Star,” a newspaper in the city of New York, and borrowed from various persons, contributors to the loan, the aggregate amount of $25,030, for the payment of which it executed and delivered' to defendant Andrews, who represented all the contributors to the loan, its five promissory notes of $5,000 each, and as security for their payment executed mortgages on all its personal property, including the chattels in question in this action. Judgments were subsequently recovered against the company, and execution issued thereon, under which all its chattels were sold, and there was a sale subsequently to these of the property of the company made by a receiver. Public notice was given at each of such sales, that the chattels in question were subject to the liens of said mortgages. The plaintiff acquired the title of the purchasers at said sales, and the' printing presses that were so mortgaged are in its possession, and now seek to have the mortgages declared void, and the lien removed, The defendant Dayton, by assignment of the mortgages, represents the contributors to the original loan of $25,000 to the Star Printing Company. The plaintiff claimed in the complaint that the chattel mortgages were invalid because the consent of the corporators had not been obtained for the execution of the same, and their consent was necessary. The plaintiff also contended that as to one of the printing presses, it had been substituted after the first mortgage was executed in place of another press, and the consent of the corporators to the first mortgage, if it was obtained, did not apply to the substituted mortgage.</p> <p>The defendant contends, that as the plaintiff represents the purchasers of these chattels, who had notice of the execution and lien of these mortgages before the sales thereof, it is estopped from taking advantage of any defect caused by the absence of any consent of the corporators, if any such defect existed, but that, in point of fact, all needful consent on the part of the corporators, to the exécution of the mortgages, had been obtained and filed.</p> <p>Held, that the money was loaned on the security of these mortgages, and that the amount so loaned is wholly unpaid, there is no question; and that the corporation and the lenders did in fact consent to the substitution of the mortgage on the new printing press, in place of the press theretofore mortgaged, is not denied. That assent of the corporators, as set forth in writing and filed, was an assent “ that the real and personal property of the Star Printing Company may be mortgaged,” and the language was broad enough to warrant the cancellation of the mortgage on some of the chattels with the consent of all parties to the mortgage, and the substitution of another mortgage on other chattels. That the purchasers of these printing presses at public sale, having full notice of the mortgages as liens on the presses, cannot take advantage of the alleged defect, as to want of consent by the corporators to the execution of the mortgage, even if it existed. Whatever depreciation of price occurred at the sales, because of these liens and notice of the same, the purchasers reaped the advantage. It would be unjust and inequitable that they should be permitted to repudiate the lien. Findings of the trial judge approved, and the judgment appealed from affirmed.</p>

<p> Master and servant, duty of former to furnish lader with sound and suitable tools and machinery, and keep same -in repair. </p> <p>The relation of the master is not that of insurer of the safety of his servant, but the master is bound to use all reasonable care, diligence and caution for the safety of those employed in his business and while in his employ. He is bound to exercise ordinary care in providing his servant with sound and suitable tools and machinery while he is engaged in the prosecution of liis work, and the same must be kept in good repair. Ignorance by the master of defects in the instrumentalities, used by his servant in the performance of his work, is no defence when by the exercise of ordinary care and inspection the master could have discovered and remedied the defects, or avoided danger incident therefrom.</p> <p>In this case, the defendants knew, or- were bound to know, that the elevator had been under repair on the day of the injury to the plaintiff; that the repairs had not been completed, and the elevator was out of order. They also knew that it was the custom and duty of the plaintiff to close and fasten the iron doors over the elevator at night, when the day’s business was closed, and to use the elevator for that purpose, and they should have informed plaintiff of the condition of the elevator, or warned him not to use the same, or otherwise prevented its use, and his exposure to danger therefrom. It was a new element of danger, against which they were bound to put plaintiff on his guard, for the defective and dangerous condition of the defendant’s elevator on the evening of the accident, was not one of the risks of his employment which plaintiff assumed.</p> <p>Held, that there was enough proved and established by the plaintiff on the trial to support the conclusion that defendants had been derelict in the performance of the duty which, as masters, they owed to the plaintiff, and that they had not exercised in his behalf that ordinary care which the circumstances demanded, and to which plaintiff was entitled.</p>

<p>Appeal from judgment entered upon the report and findings of a referee.</p>

<p> Conveyance of real estate made with intent to defraud creditors— Insolvency, presumptions of, at time of conveyance. </p> <p>On December 29, 1882, defendant Peter Hefferan, being indebted to plaintiff in the sum exceeding $9,000, made a voluntary conveyance of real property to his wife, through his son as an intermediary agent, receiving from his wife after the conveyance, a general power of attorney giving him the absolute right of control.and disposition of said property and its proceeds. On December 25, 1882, the plaintiff made a demand upon Hefferan for the payment of the plaintiff’s claim, when he declared his intention not to pay the same, and immediately thereafter (Dec. 29th,) conveyed the property to his wife.</p> <p>In January 1883, plaintiff commenced an action in the Supreme Court against Hefferan, and, on May 18, 1883, Hefferan permitted an inquest to be taken against him for $9,847,18, upon which judgment was entered and execution issued thereon against Hefferan’s property, which was returned wholly unsatisfied. Held, that upon these facts, without explanation, that the conveyance from Hefferan to his wife had been made with intent to delay or defraud creditors. The plaintiff certainly had made out aprima facie case, which called for a judgment in his favor.</p> <p>The court, after reviewing the decisions as applicable to the facts in this ease, and suggesting that the precise question had not been passed upon by the courts of this state, held that the decisions cited should bo accepted so far as they place upon defendants the burden of showing the grantor to have been in a position to make the conveyance at the time of its execution and delivery. Held, that where a person is heavily indebted to another, and shortly after a demand for payment of the indebtedness had been made and refused, makes a voluntary transfer of real property worth $30,000 to his wife, from whom he receives a general power of attorney to sell and dispose of the property conveyed and its proceeds, and at the time the debtor had no other real property, and execution had issued and been returned unsatisfied within seven months after the making of the conveyance, upon a judgment of over $10,000, obtained on this debt in an action brought to set aside the conveyance as" fraudulent, the debtor is bound in justice and fairness to make explanation before he can claim a finding from the court that the conveyance was not made with the intent to delay or defraud creditors.</p>

<p>Appeal by plaintiffs from an order allowing defendants to serve an amended answer.</p>

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

<p> Discovery of boolcs and papers—Examination of party 10 enable plaintiff to amend his complaint. </p> <p>The papers on which a motion is made for an order for an examination and discovery of books and papers to enable a party to make or amend a pleading must show the necessity of such an examination. When it appears that the object sought is to obtain information concerning an anticipated defence and other matters beyond the making of the pleading, the order should be denied.</p>

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

<p> Fire insurance—Fraud set tip in answer—Reference, discretion of court in ordering the same. </p> <p>In each of these actions the defendants-appeilants, have set up in their answer a charge of fraud on the part of the insured, and for this reason the motion made by each defendant for a compulsory reference was properly denied. Although the character of the action is to be determined, yet in the exercise of its discretion the court will look at the papers submitted on both sides, and if it appears that a charge of serious fraud is involved in the issues the motion for a compulsory reference may well be denied even if the action is referable, and with the exercise of that discretion the court on appeal will not interfere.</p>

<p>Extra Allowance, should be denied where it does not appear that the right which plaintiff sought to enforce was of any value and therefore there was no fact which could be used as a basis for computation upon which to predicate an extra allowance.</p>

<p> Bill of particulars in regard to negligence in management of an elevator. </p> <p>The allegation in the complaint that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed? In what respect was it negligently and improperly managed and operated? or, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated ? These are questions plaintiff should answer in a bill of particulars. If plaintiff cannot show this and prove the same she cannot recover. The mere happening of the accident does not place upon defendants the burden of proving that it was not caused by their negligence.</p>

The action was commenced in the year 1888, in the name of Cornelius Gfeorge Crowley, grantor, and Joshua C. Sanders, grantee, against Mary Murphy and others, under section 1501 of the Code of Civil Procedure, to recover the possession of certain premises situate within the city and county of New York. The complaint was subsequently amended by striking the name of Joshua C. Sanders therefrom. The facts sufficiently appear in the opinion and head note.

Appeal by plaintiff from an order denying his , motion to compel a delivery to him by the sneriff of certain articles. The question involved on this appeal is as to the sufficiency of an affidavit delivered to the sheriff-to prevent the delivery by him to the plaintiff of certain articles taken by him under a requisition issued to him by plaintiff in an action of claim and delivery.

<p>Appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>The action is one of the usual actions brought by an abutting property .owner against the defendant. The facts sufficiently appear in the opinion.</p>

<p> Alimony and counsel fees in actions against the husband for a divorce a, vinculo matrimonii, rule as to granting, when not granted. </p> <p>Alimony is not granted as matter of course in actions by the wife against the husband for divorce a vinculo matrimonii, nor are counsel fees.</p> <p>The wife, in order to obtain either alimony or counsel fees, must present a case to the court showing that she has a fair prospect of success in the action.</p> <p>Where the charges of adultery are made on information and belief, and the husband positively denies them, she does not present such a case.</p>

The action was brought, to recover damages for the breach of a covenant for quiet and peaceable enjoyment under a lease. On or about the 6th day of August, 1888, plaintiff entered the premises mentioned in the complaint under a verbal lease with the defendant, which lease was to expire on the first day of May, 1889. The plaintiff remained in occupation of the premises until about the 9th day of November, 1888.

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

<p> Action to recover the possession of personal property purchased from the assignors of plaintiff under fraudulent representations.—Referee, his findings of fact must be sustained by the evidence. </p> <p>The appeal in this ease turns upon the question whether there is sufficient evidence to sustain the findings of fact made by the referee. Held, that the record shows that there is sufficient evidence to sustain the same. The evidence was capable of the construction which the referee placed upon it and, upon the whole case, we cannot say that the preponderance of the evidence is the other way. For these reasons a reversal cannot be had on the. sole ground that we might have reached different conclusions if the issues had been submitted to us as trial judges in the first instance upon the evidence disclosed by the record. The referee saw the witnesses on the stand and was able to ■ notice their manner in giving their testimony, and better able to reach correct conclusions and construction upon the same.</p>

This point was not presented or argued by counsel, Controversy submitted under section 1279 of the Code. The facts sufficiently appear in the opinion.

<p>Ejectment, action of, when it lies—Conveyance in trust, estate of trustees and cestui que trust under same^~Mortgage foreclosure action, parties to same required to foreclose the legal estate in the land.</p> <p>The plaintiffs, Clara Isabelle Curtis and Julia Curtis Munson, are the daughters of James L. Curtis and Clarissa E. Curtis (who was Clarissa E. Racey before her marriage to James L. Curtis), and the plaintiff, Edith Hastings, is the granddaughter of the said James L. and Clarissa E. Curtis. Prior to the marriage of James L, and Clarissa E. Curtis, and in June, 1832, they entered into an agreement with one Eliza Racey, that, after reciting that a marriage was about to be solemnized between said James L. Curtis and Clarissa E. Racey, also stated that Clarissa E. Racey was entitled to certain money and property, and that after said marriage the said Clarissa E. Racey should have power to dispose of her property, real and personal, by will or appointment, and that Eliza Racey should, upon the written request of said Clarissa E. Racey, invest the money of said Clarissa E.' Racey as she should direct and appoint, and should hold such investments' as the trustee of said Clarissa E. Racey.</p> <p>That, prior to said agreement and marriage, one Isaac Marquand Dimond was seized in fee of the real estate, the subject of this action, subject to a purchase money mortgage that he had executed to one William Wagstaff. That Dimond conveyed the property to the said James L. Curtis, who conveyed the same to one Stilwell, who conveyed the same to said Clarissa E. Curtis; and, in May, 1837, the said James L. and Clarissa E. Curtis conveyed the said real estate to the said Eliza Racey, upon trust, to receive the rents and profits of the same and apply them to the use of said Clarissa E. Curtis; and upon the further trust that the said Eliza Racey should, at the decease of said Clarissa E. Curtis, convey said real estate to the children of Clarissa E. Curtis, living at her decease, and the surviving children of such of them as might then be dead, in equal portions per stirpes and not per capita. That said Clarissa E. Curtis died intestate, November 3, 1886, leaving her surviving her daughters Clara Isabelle Curtis and Julia Curtis, and her grandchildren Edith Hastings and Ernest Hastings, her only heirs at law. That Eliza Racey, the trustee, died on or about December, 1848.</p> <p>That Ernest Hastings died October 11,1884, and by his last will and testament devised all his property, real and personal, to said Edith Hastings. That one George H. Hinman was duly appointed trustee by the Supreme Court, January 31, 1889, in the place of said Eliza Racey, deceased. That on the 7th day of June, 1889, said Hinman, as such trustee, conveyed the said real estate to the plaintiffs, Clara Isabelle Curtis, Julia Curtis Munson, and Edith Hastings, and on the 24th of June, 1889, the said Hinman, as trustee, and the said last named plaintiffs, "conveyed to the plaintiff, John Townshend, four undivided tenth parts of said real estate. That the mortgage on the said real estate executed by said Dimond to said Wagstaff became by several assignments the property of one George Lovett, who foreclosed the same by an action in the court of chancery of the state of New York, in the year 1838, in which action the said Isaac M. Dimond, James L. Curtis, and Clarissa E. Curtis, his wife, and Eliza Racey, were defendants, and such proceedings were had in said action that the said Clarissa E. Curtis and Eliza Racey filed their joint and several answers, and "on or about April 9, 1840, a decree was entered in said action and the said real estate was sold under the direction of William Mitchell, and the said George Lovett and one Samuel Cowdrey became the purchasers and received a conveyance of the same from the said Mitchell,' and said purchasers entered into possession of the same. The defendants in this action claim ownership of the said real estate under said action of foreclosure and sale from the said Lovett and Cowdrey. Plaintiffs bring this action of ejectment to recover the property from the defendants.</p> <p>Held, That at the time of the commencement of the action for the foreclosure of the mortgage, and of the entry of the decree therein, the whole estate was in Mrs. Racey and Mrs. Curtis, in Mrs. Racey for life, and in Mrs. Curtis in fee in reversion, who were parties defendant in that action; that Mrs. Racey and Mrs. Curtis were barred by the decree in the foreclosure action, and the whole legal estate passed to the purchasers at the master’s sale; that the children of Mrs. Curtis, as the holders of a mere contingent right in equity which did not give them an estate in the land, were not necessary parties to that action. This was the decision of this court in regard to a part of this same property in the case of Townshend v. Frommer, 57 IF. Y. Superior Court, 90, and its correctness must be assumed here. At the time of the alleged execution of the power in trust, appearing in this action, the defendants had the whole legal estate in the land, and still hold the same under and by virtue of the superior and prior lien given by the mortgage and the foreclosure and sale thereunder, and, therefore, the estate of the defendants was not divested, nor subject to be divested, by the execution of the power in trust. If the children of Mrs. Curtis have any right left which can he asserted, it must be asserted in equity. They are in no position to maintain an action in ejectment.</p> <p>In Townshend v. Frommer, 57 superior Court Reports 90, the reporters deemed it impracticable to report the points of counsel because of their volume and extent. The same and additional points appear in this case. The important questions involved seem to demand that a summary shall be given. Reptrs.</p>

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

<p> Accord and satisfaction by the voluntary act of a party injured to one or more joint tortfeasors, is a discharge of all. </p> <p>Plaintiff bought certain property from one Duntze. At the time Duntze owed one Wagner, and the firm of Austin, Nichols & Co., the substituted defendants herein. Plaintiff knew of the indebtedness to Wagner, but was ignorant of the fact that Duntze owed Austin, Nichols & Co., and to protect himself against the claim of Wagner procured the signature of Wagner to the bill of sale with Duntze. This bill of sale contained a statement that the property was free from all claims, etc. Afterwards Duntze confessed judgment to Austin, Nichols & Co., and execution issued thereon, and the sheriff levied on the property sold by Duntze to plaintiff, who paid the sheriff under protest $479.02. Afterwards plaintiff obtained from Wagner the sum of $475,00, and gave a document in which he acknowledged the receipt of the said sum and stated that it was in full for all claims and demand against the said Wagner. It appeared that plaintiff had no other claim against Wagner except that growing out of the sale of the property by Duntze and Wagner to him, but plaintiff sought to establish on the trial that he borrowed this $475, from Wagner.</p> <p>Held, The case presents this state of facts: Plaintiff makes a claim for the same cause of action against two parties. One of these parties pays the claim and afterwards plaintiff brings an action against the other party. We are of the opinion he cannot maintain such an action. The payment by Wagner acted as an equitable assignment by the plaintiff of any cause of action he had against the sheriff for seizing and injuring his property, and it was error for the trial judge to charge the jury as stated in the case. If the $475 was a loan by Wagner, as claimed by plaintiff, it would not act as an equitable assignment, but that question of loan or equitable assignment should have been submitted to the jury. The charge to the jury was, in effect, a direction to find for plaintiff on that point, and the defendants having excepted, it was not necessary for the defendants to go to the jury on that point.</p>

<p>Appeal from a judgment entered on the report of a referee, and from an order confirming the report of said- referee, and from an order denying plaintiffs motion to send the ease back to the referee. The decision on a former appeal is reported in 55 Super. Ct. Rep.</p>

<p>Appeal from an order made at special term adjudging the defendant guilty of contempt in not paying alimony and counsel fee.</p>

<p>Verdict for plaintiff subject to the opinion of the general term. The facts sufficiently appear in the opinion.</p>

Appeal by defendant from a judgment entered on the decision of the court upon a trial before the court without a jury. This action is brought to recover back the amount paid by plaintiffs to defendant for an assessment levied on their property for paving Thirty-sixth street between Seventh and Eight avenues with Belgian or trap block pavement and for laying and re-laying crosswalks at the intersecting streets and avenues.

<p>Application for judgment in an action tried before a jury where the court directed a verdict for defendant subject to the opinion of the court at general term.</p> <p>The facts sufficiently appear in the opinion.</p>

<p> Service by mail, when no presumption of delivery—Notice, insufficient proof of service of. </p> <p>Where it does not appear to what place a letter mailed, postage prepaid, was addressed, there is no presumption that it was delivered at any place, or to the person to whom it was addressed.</p> <p>A course of business whereby after letters are signed they are copied in a letter book, addressed and put in the mail by either a clerk or messenger, will not raise a presumption that a particular letter was addressed to the person to whom it was intended to be sent at any particular place, or that the messenger knew the correct address of such person.</p> <p>Service of a notice to do an act is not proved by the mere evidence that a messenger delivered an envelope about thé contents of which he knew nothing; nor is it proved by showing that in a book there was a copy of a letter bearing a certain date requiring certain acts to be done in and about a particular business and that about that time a messenger of the writer delivered a- sealed envelope, of the contents of which he knew nothing, to the person to whom it was addressed, there being no evidence that there were not other business relations between the parties which called for the sending of letters requiring acts to be done in and about them, or that no letters on other matters were delivered about the same time.</p>

<p>Appeal from judgment entered upon the findings of the court on a trial by the court without a jury.</p> <p>The facts sufficiently appear in the head-notes and the opinion.</p>

<p> Errors, not so prejudicial as to call for a reversal, instances of. </p> <p>Where the main issue in an action in equity was whether the plaintiff was entitled to an injunction restraining a continuing trespass by the defendants on certain premises, and the evidence'justified a judgment for injunction, and the court, at defendants’ request, undertook to ascertain the value of the premises so that on payment of such value the injunction could be dissolved, and in so doing erroneously, under defendants’ objection, admitted evidence of offers made for the property, such error is not cause for reversal of a judgment adjudging that defendant be perpetually enjoined until the payment of the amount found and adjudged to be the value of the premises, which amount was abundantly sustained by competent evidence. One of plaintiff’s witnesses, under defendants’ objection, testified that a certain piece of property sold for $29,000; afterwards defendants’ witness testified in chief that it sold for $29,500.</p> <p>Held,—the admission of the testimony given by the plaintiff’s witnesses was not cause for reversal.</p>

<p> Trade-mark—Firm or business Same, when parties will be protected in its use—Proper and improper use of a name or title in business. </p> <p>In the case at bar plaintiff asks judgment that defendant be restrained and enjoined from using the name of “ J. W. Scott Company, Limited,” in the business of buying and selling, coins, postage stamps, albums, catalogues, curiosities and antiquities, or under any name in which the word “Scott ” appears.</p> <p>Prior to December, 1885, John W. Scott was engaged in such business under the name of “ J. W. Scott & Co., or Scott & Co.” in the city of New York, and was one of the most prominent and best known dealers in the articles mentioned, and about that time he agreed to sell to Gustave B. Caiman, his business. It was contracted and agreed between them that a corporation should be formed under the name of Scott Stamp and Coin Company, to whom, with some exceptions, the business and business property, copyrights, trade-marks, good will and firm najne, and the devices and designs owned and controlled by J. W. Scott, under the name of J. W. Scott and Company, should be conveyed, transferred and pass, and that part of the consideration for the same should be paid to Scott in the capital stock of the corporation. This contract further provided, that J. W. Scott should help Calman and the corporation in the business so long as he (Scott), should continue to be a stockholder in the corporation, and that J. W. Scott should not engage, directly or indirectly, in any business of the same kind in the United States, for the period of two years from the date of the contract. After three years had elapsed from the date of the contract, and after Scott had sold to Caiman his stock in the company, J. W. Scott engaged in the same business again, and gave the use of his name to defendant, under the name of “ J. W. Scott Company, Limited.” The plaintiff never did any business under this name, nor under the name of J. W. Scott & Co., or Scott & Co., but always under the name and title of the corporation plaintiff, “ Scott Stamp and Coin Company, Limited.”</p> <p>Held, that the provisions of the contract fully establish that, after the lapse of two years, J. W. Scott might engage in the same or a similar business. This he had the right to do under his own name, provided he did it honestly and fairly. That every man has the absolute right to use his own name in his own business, even though he may thereby interfere with and injure the business of another bearing the same or a similar name, provided he does not resort to any artifices, or do any act calculated to mislead the public as to the identity oi the establishments and thereby produce injury to the other beyond that which results from the similarity of names. It is only where a man uses his own name in such a way as to wrongfully appropriate and convert the business and reputation of another bearing the same or a similar name. Inasmuch as J. W. Scott, after the lapse of two years, had the right to engage in a business similar to that of plaintiff, under his own name, he had a right to give his name and its use to the defendant; and the fact that mistakes are made by customers, and that confusion arises, does not give to the plaintiff any right to an injunction, and thereby prevent and enjoin the right to such use by the defendant. The present case really turns upon the question Has the defendant company made an improper use of its name to the prejudice of the plaintiff ? The evidence does not warrant an affirmative answer to that question, and upon the whole case defendant is entitled to a judgment of dismissal of the complaint.</p>

Appeal by plaintiff from judgment entered upon the report of a referee. The facts sufficiently appear in the head notes and the opinions.

<p> Life Insurance.—Forfeiture, waiver of, </p> <p>The life of Charles Marshall, the plaintiff’s husband, was insured by defendant, but the policy was forfeited for non-payment of arrears, and plaintiff sought a renewal and reinstatement. At the time of her application Charles Marshall was lying sick in the hospital with the disease of which he subsequently died. Plaintiff concealed the fact of his illness from defendant.</p> <p>Held, that such concealment avoided whatever was done towards reinstatement or renewal. Upon the whole case there was not sufficient evidence upon which the jury could have found that the defendant waived the forfeiture clause.</p>

Appeal' from order vacating an order granting a a new trial as a matter of right, on payment of damages and costs in an action of ejectment. The following opinion was delivered at special term.

<p>Exceptions of plaintiff ordered to be heard in the first instance at general term upon judgment of dismissal of the complaint ordered by the court at trial term.</p>

<p>Contract—Complaint, default in answering two causes of action therein, and demurrer as to third—Subsequent proceedings—Referee, trial before and rulings considered—Referee’s power of amendment of pleadings.</p> <p>In this case, the complaint set up three causes of action; one to recover the amount due on the contract set forth, another to recover for extra work and material, and a third to recover for damages sustained by plaintiff because of the' failure of defendant to furnish a certain structure and materials as agreed, in time for progress of the work, and by the unwarranted delay plaintiff was obliged to keep in service and pay for more days work than she would have paid had defendant performed and fulfilled the contract on its part. Defendant did not answer the first two causes of action, but demurred to the third, and judgment was rendered in favor of plaintiff on defendant’s default on the first two causes of action. Subsequently, on the demurrer being overruled and defendant answering the complaint as to the third cause of action, the issues raised thereby were, by consent of parties, tried before a referee, whose rulings on the trial are the subject of consideration on this appeal. Held, that the judgment entered upon the first two causes of action was an adjudication to the effect that plaintiff had performed all the conditions of the contract, and the defendant on this trial was not entitled to contend against the same.</p> <p>The defendant contended that the referee erred in admitting certain evidence on the trial that tended to vary the written contract. The referee admitted the evidence, ruling at the same time that if it tended to alter or modify the contract, he would grant a motion on the part of defendant to strike it out. lX No such motion was made by the defendant. Held, that it . was not error for the referee to admit the testimony conditionally. Also held, that the testimony did not vary the contract. That it related to the time when plaintiff was to commence work on the contract and was not in conflict therewith.</p> <p>Held, that the referee did not err in refusing to" allow defendant to amend its answer on the trial by setting up a new defence. The referee had not the power to allow such amendment to be made.</p> <p>Held, that it was not error for the referee to admit evidence on the trial showing the daily rental value of the plant of machinery used by the plaintiff in the work, for such evidence tended to show one element of the damage sustained by the plaintiff through the delay of the defendant in the performance on its part of the conditions of the contract.</p>

The facts sufficiently appear. in the opinions delivered at the special term and at general term, and in the head notes.

<p> Trusts under a will, express and implied—Power in trustees to hold and sell and distribute the rents and profits and the proceeds of a sale. </p> <p>Joseph W. Meeks, the testator, died seized of certain property, leaving a last will and testament whereby the said property was devised to the plaintiff and another person, in trust, as executors and trustees. (1.) The executors and trustees are directed, until the sale of the real estate as provided in the will, to keep the buildings in repair and insured; to pay all taxes and assessments on the property, and to collect and receive the rents and profits. (2). The executors are further expressly authorized, empowered and directed to sell at public auction, at such time and manner as they shall think best, all the real estate, etc., and to divide the proceeds into four parts, and pay over one and invest the other three in three separate trusts each for one life with remainder. (3.) Until the conversion of the real and personal estate into money, and its division as provided, the said absolute legatee and the three life legatees are to receive the income of the residuary estate, share and share alike. The defendants moved to dismiss the complaint on the grounds (1.) That the will attempts to Great an express trust not authorized by the Revised Statutes; (2.) That the trust created may suspend the power of alienation in contravention of the statute of perpetuities, and (3.) That the action should have been brought in the names of the real parties in interest.</p> <p>Held, That to entitle plaintiff to judgment it must appear that the title to the property in question became vested in the plaintiff, as trustee, or that he was entitled to the possession and enjoyment of the property. The testator clearly expressed his intention in the will, that his property should not descend to his heirs at law; and the heirs at law, as such, are not entitled to the proceeds of the sale of the property, or to the rents and profits realized therefrom, during the period that should elapse between the time of the death of the testator and the time of such sale. It is the plaintiff, as trustee, who would have been entitled to the amount required to have been paid for the prop erty, if the defendants had taken the same under the right of eminent domain; and, until the sale of the property by the plaintiff, as trustee, he is entitled to the possession of the property and to the rents and income thereof. It is the plaintiff, as trustee, therefore, who can maintain an action for the use and occupation of the property and for an injunction to restrain a trespass upon it; and a conveyance by him to the defendants, under the power of sale contained in the will would have conveyed a good title. The heirs at law of the testator were not necessary parties to this action to restrain a trespass upon the property, or to recover possession thereof, or damages for such trespass, nor necessary parties to a conveyance of the property in order to vest a good title thereby. The executors and trustees took the legal title to the property under the will. The intention of the testator that they should take the title to the estate, collect the rents and profits until it should be sold, and then receive the proceeds of sale and divide the same, is clearly expressed by the will. The will created an express trust to sell the property, receive the rents and profits and to apply the same, and the proceeds of the sale, to the use of the persons having a life estate in the same or otherwise entitled thereto.</p>

Appeal by plaintiff from a judgment in favor of defendant entered upon the verdict of jury, and from orders denying plaintiff’s motions for a new trial on the judge’s minutes, and on the case as settled.

. Appeal from judgment entered against defendants upon verdict of jury, and from order denying motion for a new trial made upon the judge’s minutes. •

<p> Plaintiff should claim in his complaint and on the trial whatever he deems himself entitled to. </p> <p>In the ease at bar, the plaintiff did not in his complaint, nor in the course of the trial, advance the claim which, on the motion for a new trial, he for the first time advanced, namely, that he is entitled to ten per cent, discount on certain purchases; that he has not received the same and that the jury should have given a verdict for that amount at least. Held, as no such claim or suggestion was made before the rendition of the verdict, the court will not indulge in the presumption that he did not secure it for the purpose of reversing the judgment.</p>

<p>Appeal from judgment dismissing the complaint with costs, entered upon the decision of a judge after trial of the issues at special term.</p>

<p> Landlord and tenant—Undertenant—Damages under lease where undertenant is deprived of the possession and use of the premises. </p> <p>The case at bar was considered and decided by the court and the judgment reversed for error in the court below in allowing the plaintiff to give evidence, and the jury to consider it, of loss of profits in the business during the time plaintiff was deprived of the use of the premises, limited to a period of six months.</p> <p>Held, That loss of profits, as an element of damages, must be the direct and immediate fruit of the contract, and must be independent of any collateral engagement or enterprise entered into in expectation of the performance of the principal contract. If they are of this character, they are part and parcel of the contract itself and enter into and constitute a portion of its very elements; and if they are not of this character, they should be excluded, not because they are in themselves remote, but because they depend wholly upon contingencies, which are so many, so various, and so uncertain. If they are also remote, that constitutes an additional reason for their exclusion. Judged by these rules the profits sought to be recovered in this case were clearly contingent, if not remote. Whether or not plaintiff could have made any profits for six months continuously, depended upon many, various and uncertain contingencies. It was purely problematical, and consequently the supposed lost profits were, purely contingent and speculative, and it was error to allow the plaintiff to testify, and.the jury to consider the testimony, as .to the alleged loss of profits. That the measure of damages that should have been adopted was the amount represented by the excess of the actual rental value which the premises would have had if they had been completed in time, over the rent reserved in the lease.</p>

<p>Appeal from judgment entered upon a dismissal of the complaint at the trial.</p>

<p>Action for the recovery of a penalty of fifty dollars, under chapter 185 of the Laws of 1887, entitled ‘ ‘ An Act to prevent extortion by railroad companies. ”</p> <p>The plaintiff claimed that on the 20th of August, 1889, he took passage on a passenger train of the defendant to be carried on the defendant’s road from 134th street, in the city of New York, to Morris Park, in the state of New York, and thence back to said 134th street. That he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum that the defendant had the right to ask. and receive, whereby defendant became liable to pay to the plaintiff under and by virtue of the statute of the state of New York, entitled “ An Act to prevent extortion by railroad companies,” passed March 27th, 1857, the sum of fifty dollars, together with the sum of fourteen cents so asked and received as aforesaid, in excess of the legal fee.</p> <p>The defendant is a foreign corporation chartered by the state of Connecticut in the year 1844, and in 1846, by chapter 195 of the laws of the state of New York, it was granted permission to extend its railroad from the state line of Connecticut to thé New York and Harlem Bailroad, connecting therewith at Williams Bridge, upon certain conditions, one of which provided that the charge for transportation of any passenger Shall not exceed three cents per mile in the state of New York. This condition is not applicable to the case at bar, because it is expressly limited to that part of the road specified in the act, and defendant was not a passenger over that part of the road. The passage of the plaintiff, from which plaintiff’s claim arose, was on a railroad known as the Harlem Elver and Port Chester Bailroad, used and operated by the defendant under a lease, and the liability of the defendant rests upon the legal status of the last named company, and the rate of fare it had a right to charge. This company was shown to have been organized under chapter 763 of the Laws of 1866, as amended by chapter 722 of the laws of 1869. Neither of these laws fixes or limits the rate of transportation over the road, and taken together authorize the construction, maintenance and operation of the road in a certain manner, which includes a lease by certain persons, specifically named, and their associates “when duly formed into a corporation under and pursuant to an act to authorize the formation of railroad corporations and to regulate the same, passed ” April 2,1850. This is the general railroad act of New York. Subdivision 9 of section 28 of this act confers upon railroad corporations organized and formed under its provisions, the power to regulate the compensation to be paid to them for the transportation of passengers, providing, however, that such compensation shall not exceed three cents a mile, and it was upon this subdivision and the amendments to said act in 1857 and 1886, that the trial judge rested when he held the defendant liable for the penalty.</p> <p>Held, that it was essential and necessary that the actual and due formation of a corporation, under this general railroad act, as provided in the Acts of 1866 and 1869, should be shown before the prohibition contained in the said general railroad act can be enforced by the infliction of a penalty under it or the pets amendatory thereof, for the general railroad act in terms applies only to corporations formed under it. Under the assumption that the defendant, as a foreign corporation, under its lease of the Harlem Elver and Port Chester Railroad, had no right to charge a higher rate than the Harlem Biver and Port Chester Railroad Company, when legally organized, could have charged under the general railroad act, and that the defendant, as lessee, is liable for the penalty in every case in which its lessor would have been liable, yet it still remained incumbent upon the plaintiff to establish at the trial and as a part of his case, that the special acts authorizing the formation of the Harlem Biver and Port Chester Bailroad Co. were followed up, and carried out, by an actual and due formation of a corporation under and pursuant to the general railroad act. There being no evidence on this point, its absence is a fatal defect and error, for the judgment rests upon the provisions of a penal statute. The claim is that defendant- is guilty of extortion. In such a- ease the rule is well settled, that all doubtful points are to be construed in favor of the defendant, and the plaintiff must show a clear right to the penalty, and that he must bring himself strictly and literally within the operation of the statute, which he failed to do.</p>

<p> Practice—Verdict directed for plaintiff—Exceptions ordered to be heard in the first instance at general term,.—No exception taken to the direction of the verdict—Party against whom, the verdict was directed deemed to have acgv-iesced in the direction. </p> <p>In this case, at the trial, evidence was given on both sides, and upon, the close of the evidence plaintiff’s counsel moved that a verdict be directed for plaintiff on certain grounds which he stated. The court granted the motion and directed the jury to find a verdict for the sum of $5,164.99, and the jury rendered a verdict accordingly. The court thereupon ordered the exceptions taken during the trial to be heard in the first instance at general term, and the entry of judgment upon the verdict be suspended in the meantime, and until the hearing and decision of the general term of this court upon the said exceptions. There was no exception by the defendant to the direction of the verdict by the court.</p> <p>Held, That in this case the first requisite for a disturbance of the verdiet is that there should be an exception to the direction of the verdict, and, without such an exception, it must be deemed and held that the party against whom .the verdict was rendered, acquiesced in the direction. The necessary consequence of this acquiescence, and of the lack of power in the general term to disturb the verdict as directed, is that all prior exceptions taken before the verdict was directed, and in the course of the trial, have become immaterial, and the exceptions must' be overruled and judgment ordered for the plaintiff upon the verdict.</p>

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

On verdict for plaintiff, the exceptions taken by the defendant were ordered to be heard in the first instance at general term.

<p> Findings of fact, irreconcilable of, cannot after judgment rendered be remedied by the judge icho made them on a motion made before him sitting at a term other than that at which the judgment was rendered. </p>

In this case the jury rendered a verdict for the plaintiff for $500. Before entry of judgment plaintiff’s attorney filed a stipulation to remit one dollar of the verdict. Judgment was entered for the reduced amount and costs.

<p>Appeal from order setting aside a verdict which had been directed in favor of the plaintiff and granting a new trial.</p>

<p> Examination before trial, when not set aside on the ground that it might, call for. testimony that could be used to subject the examined party to a statutory penalty. </p>

<p> Opening default taken for non-appearance on call of calendar, insufficiency of affidavits. </p>

<p>Appeal from an order of the special term denying defendants’ motion for a retaxation of costs.</p>

Plaintiff as vendee and defendants as vendors entered into a contract for the sale and purchase of certain lands on October 18, 1888. Plaintiff was to pay the purchase money partly in cash and partly by taking the premises subject to a mortgage for $22,500, bearing interest at five per cent and having five years to run from November 1,1886. The deed was to be delivered on November 15, 1888. On November 12th plaintiff discovered that the mortgage was due November 1, 1889.

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

<p>Appeal from judgment entered after trial before the court without a jury, and from an order giving defendants an extra allowance.</p>

<p>Appeal from an order requiring a bill of particulars.</p>

<p>Motion for a re-argument.</p>

<p>Appeal from an order granting plaintiff an allowance for counsel fee.</p>