Volume 27 — Abbott's New Cases

Motion by defendant at Special Term to insert in a' case on appeal exceptions to rulings made at the trial,, that had not been there taken.

<p>"i. Contract against public policy i\ One of two rival news agencies is not entitled to enjoin the enforcement of a by-law of the Associated Press, an unincorporated association, providing, in effect, that no paper receiving news from the Associated Press shall enter into any agreement with or take news from any rival telegraphic news agency.</p> <p>2. The samei\ Although the distribution of news is in a certain sense a public business, the character of the public interest is not such as to render such by-law a violation of the constitution, or so offensive to any public interest as to entitle a person not a party to the agreement under which the by-law was made to have its enforcement prevented ; and the fact that the plaintiff will be injured by the by-law is not alone a sufficient reason for an injunction.</p>

Demurrer to complaint on the ground that the court has no jurisdiction of the person of the defendant or the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action.

<p>Appeal from judgment and order of the General Term of the City Court of New York, affirming judgment on a verdict and an order denying motion for a new trial.</p> <p>Action by Amalia Gregory against August Fichtner, as executor, etc., for conversion of several pieces of jewelry by defendant’s testator.</p>

<p>1. Motion for 7iew trial; ReheariTig' of. After the circuit at which a motion for new trial was heard and denied, has ended, a motion to vacate the order of denial and rehear the application cannot be made at special term or chambers. The remedy is to appeal.</p> <p>2. New trial after verdict on special issues. Where jury trial is a matter of right, the court has no power, even in an equity case when the issues have been tried in the exercise of that right, to disregard the verdict, as in the case of special issues on a question not triable by jury as of right.*</p>

Motion to confirm report of commissioners appointed to ascertain the compensation to be awarded for certain lands sought to be acquired by the United States.

<p>Injunction against taking ex parte proceedings.] Although an injunction should not be granted by one court, against taking proceedings in another tribunal of competent jurisdiction, an injunction may be granted against taking such proceedings, except on notice to the person who seeks the injunction.</p>

recover possession of demised premises upon the alleged expiration of the lease. The premises were leased by James McCreery to the defendants, Louis Metzger & Co., for a specified term with a privilege of remaining for an additional term provided that “the owner did not desire possession of the premises for building purposes,” and that the lessees. should advise the “ owner or his agents ” of their intention to stay not later than a certain date.

Action by Warren Bryant and John W. Way land as executors of the will of Francis W. Tracy against Agnes Ethel Tracy and Harriet Tracy Robinson for the construction of a paragraph in the will of their testator depriving any devisee or legatee contesting the will of all benefits conferred by it.

Action by Morgan L. Livingston and Silvia Livingston against the Manhattan Railway Co. and the Metropolitan Elevated Railway Co. for an injunction and damages. Defendants’ affidavit in support of the motion stated that the referee had made a large number of findings •and conclusions upon defendants’ requests, which he had not included in the report.

The action was brought by John H. Springer against Julius Bien and others for an accounting for certain moneys received by defendants upon which plaintiff claimed to be entitled to commissions. Further facts are fully stated in the opinion.

Action for services by George F. Langbein and others, against August Schneider. The services were rendered by the plaintiffs as attorneys at law to the wife of defendant in consultations and preparation of papers in a suit for separation upon the ground of cruel and inhuman treatment. The papers were never served, the parties having become reconciled.

Action by Lowell Lincoln as substituted assignee of John F. Plummer & Co. against Frederick C. Linde,. Frederick W. Conklin and Colson C. Plamilton for conversion in unlawfully detaining plaintiff’s goods and causing them wrongfully to be attached and sold.

This action was brought by the First National Bank of Chicago against Robert J. Dean, Edward N. Dean and Alvin J. Donally. It appeared from the complaint that the defendants had issued to Marshall Spellman & Co., negotiable receipts for brandy in a free warehouse. Marshall Spellman & Co. indorsed the receipts, to the Meade,Van Bokkelen Co., who indorsed them to-the plaintiff.

The complaint was as follows : 1. That at all times hereinafter mentioned the plaintiff was, and is, engaged in the business of breeding and running horses for purses and stakes at the different racetracks throughout the United States, and that in the course of the plaintiff’s business he has stables at different race-tracks throughout the United States, at which racetracks the horses owned by the plaintiff are run. 2.

a motion to vacate and set aside a referee’s report. The action was brought by John B. Devlin, administrator of Charles Devlin, upon a contract made between the city of New York and one Andrew J. Hockley for cleaning the streets of the city. The intestate was interested in the contract as assignee. The defendants •other than the Mayor, etc., of the city óf New York claimed to be jointly -interested in the contract, but refused to join as plaintiffs.

Motion to vacate judgment. .The action was brought by David Moss and Morris Goldstein against the N. Y. Elevated Railway Company and the Manhattan Railway Company, to restrain defendants from operating their road in front of plaintiff’s premises and for damages.

Summary proceedings brought by Sarah E. Barnum and another to recover premises leased to John. Fitzpatrick for non-payment of rent. The tenant set up as a defense an entry upon the-premises by the landlord amounting to an eviction..

The action was brought by Erastus P. Backus, as sheriff of St. Lawrence county, against William PL Kimball, as executor of Pliny Wright, deceased, under Code Civ. Pro. § 655, subd. 2 (amend. 1889).

Motion to vacate an order for the examination of an, officer of a corporation before trial. Action by Moses E. Bloom against Pond’s Extract Co. for breach of contract by defendant to employ plaintiff to paint signs.

Motion to continue an injunction. The action was brought by Louis J. Jordan as owner of a collection of models exhibited in “ Dr. Kahn’s Museum of Anatomy ” against Eugene O’Con-nor, trading as George A. Leavitt & Co., and Louis Strassburger to restrain defendants from selling at auction dilapidated models belonging to Strassburger as belonging to Dr. Kahn’s museum.

<p>1. Alpeal. Denial of motion to have referee's findings upon requests Sín^luded in report.] Although the court possesses power to send a case back to the referee to have findings made specially at the request of either party incorporated into the report, a refusal to do so is not error if the omitted findings would not affect the result reached. Whether- the findings of fact stated in the report are supported by evidence cannot be determined upon appeal from such order of refusal only.</p> <p>2. The same.] Upon appeal from a judgment both on questions of law and fact, the special findings on the requests of the parties may be printed as a part of the papers on appeal, and if properly mentioned in the notice of appeal, a review of the order denying the motion to send back the report to have such findings included may also be had at the same time. A party is not therefore prejudiced for the purposes of appeal by a denial of the motion to send the report back to have findings included.</p> <p>3. Reference. Findings.] Code Civil Procedure, section 1023, in requiring a referee to pass upon the requests to find “ at or before ” the time when the report is rendered, does not give a party an absolute right to have all the findings of the referee included in the report, independent of the question whether , their omission was prejudicial.</p> <p>4. The same.] It seems in most cases that it is more expedient for a court or referee to refuse all requests to find that do not affect the result.</p>

The action was brought by Ruth Torbett against Parke Godwin to recover a debt of the American Opera Company, Limited, on the ground that the annual report of that company signed by the defendant as an officer of the company was false in material representations. It appeared by the complaint that the debt became due in 1886, and the report complained of was made in 1887. The further facts are fully stated in the opinion.

Motions, submitted at the same time in a large number of actions to enjoin the operation of the elevated railways in front of plaintiffs’ premises and for damages already inflicted, for the awarding of issues as to the value of the property taken by the railway and past damages under Code Civ. Pro. § 970, as amended by L. 1891, ch. 208. The facts are fully stated in the opinion.