Volume 27 — Jones & Spencer's New York Superior Court Reports

<p>Action for injunction to restrain a party from using or carrying on business under a geographical name (Westchester) that had been used by the plaintifffor a number of years exclusively asairade mark or name for his business, &c.</p> <p>The evidence and the findings of the trial judge were to the effect that the defendant and his associates, in the year 1878, established and carried on business under the name of “The Westchester Hat Company ” and afterwards, and in the year 1880, established and carried on business in Brooklyn under the name of “ The Westchester Clothing Company.” That since 1880 the defendant has conducted and carried on business in New York city, and advertised the same under the name of the “New York and Westchester Clothing Company,” and as such was advertised in Westchester County and became well known under that name to the residents of Westchester County. That the name of “ The Harlem and Westchester Clothing Co.” was not adopted and used by the plaintiffs until October, 1881.</p> <p>Held, that it clearly appearing that the name of “ The Harlem and Westchester Clothing Co.” was not adopted by the plaintiffs until 1881, they cannot prevent the use by the defendant of the name “ Westchester ” when it was adopted and used by defendant as a name under which his business was carried on before it was adopted by the plaintiffs. The case from the plaintiffs’ standpoint does not present a strong claim for equitable relief. The stores of the plaintiffs and the defendant are a mile apart. The names adopted by each are not alike; neither are manufacturers of goods, and there is no question of trade mark in the case. According to plaintiffs ’ evidence the defendant was using this title a short time after plaintiffs adopted the name which they seek to protect, and plaintiffs have allowed, without objection or protest, the use of the name by defendant for over seven years, and this tends to show an acquiescence in the use by the.defendant of the name adopted by him. That it is not necessary to determine the question as to whether or not a party can, by adopting a geograph - ical name, under which he does business, acquire such a property right to use that name as to prevent others from using it in any combination for the same purpose. The judgment was right and should be affirmed.</p>

<p>Appeal from judgment entered on the dismissal of the complaint.</p>

<p>Appeal from interlocutory judgment entered on an order overruling a demurrer to the complaint.</p>

<p>Appeal from judgment on verdict of a jury.</p>

<p>Appeal from interlocutory judgment overruling the demurrer to the complaint.</p>

<p>Appeal from a judgment entered upon an order dismissing the complaint at trial term.</p>

<p> Action to recover damages caused, by the construction and operation of the elevated railroad—Loss of rentals, etc. </p> <p>In a former action between same parties to recover damages to same property, between May, 1879 and May, 1883, it was adjudged that the damages sustained by plaintiff were at the rate of $300 per year. Counsel for defendants requested the court to rule and to charge the jury that this judgment was conclusive evidence as to the amount of damages sustained by plaintiff between 1879 and 1883.' The court refused so to rule and charge. Reid, that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in this action.</p> <p>A witness was allowed to testify, against the objection of defendants, to the amount of depreciation in the rental value of plaintiff’s property, due to the elevated railroad. The grounds of defendants’ objection was that the witness was asked to give an opinion as to precisely what the jury was to decide. Reid, that although the witness dii'ectly spoke as to the amount of depreciation, the answer was not injurious to defendants, for at the same time he gave the value before and after the railroad was built, the difference being the amount of depreciation that he had previously testified to. The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. Reid, this was not correct, because if plaintiff was not in occupation during the terms of leases given, they were in occupation between those terms.</p>

<p>Appeal from judgment entered upon a verdict of jury, directed by the court, and from an order denying motion for a new trial on the judge’s minutes.</p>

<p> Common carrier—Bill of lading—Liability for negligence. </p> <p>This action was for the value of two casks of wine. The casks were found on the arrival of the steamship to be in a broken condition, some of the staves having been broken, and the whole of the contents had leaked out. The bill of lading provided that the defendant should not be liable for breakage or leakage. The plaintiff claimed that the facts of the breakage and leakage created a presumption of negligence in the breakment of the casks for which defendant was liable under the bills of landing, or that, at least, it was for the jury to say whether the condition of the casks did not show negligence.</p> <p>Held, that assuming the law to be that when casks or things of that nature are generally carried without breakage, if ordinary care is used, the fact of breakage leads to the presumption that ordinary care was not used, yet such a presumption can be made only in regard to casks that are made of such material, and in such manner, that will give them the strength to resist the ordinary operations on the ship; yet if nothing be known or presumed as to the strength of the cask, no knowledge or ex- ■- perienee would exist upon which it might appear probable that the casks would bear ordinary usage. The manner in which these casks were made, or the strength of the material, were not shown, although proof on the subject could have been had, and there can be no presumption as to their strength, and the plaintiff did not show facts upon which a presumption of negligence of defendant could be assumed, nor any question on that point, for the consideration of the jury.</p>

<p> Witness—Testimony, immateriality and irrelevancy of. </p> <p>The plaintiff was a witness in his own behalf. On his cross examination he testified that he had been arrested about some coats; that a party that was with him stole the coats, and that he, the plaintiff, was arrested and convicted, and served a term in the House of Refuge. On the re-direct examination he was asked, Were you guilty or innocent of that transaction P The counsel for defendants did not object to the form of the question but objected to it as immaterial and irrelevant, and the objection was sustained and plaintiff’s counsel excepted to this ruling.</p> <p>Held, that this ruling was error. That the witness had aright to show his innocence and, if impossible, relieve himself from the unfavorable inferences that might be drawn from the facts of his conviction. No record of the conviction was produced, but if it had been it would not have been conclusive of the plaintiff’s guilt.</p>

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

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

<p> Banking, rights of bankers—Trust, when not impressed—Personal judgment, when not given in an equity action—Jury trial, when not waived. </p> <p>There being two depositors in a bank (husband and wife) having accounts therein, the husband drew a check on the bank against his account to the order of the wife, the wife deposited the check to her account, the bank charged the check to the account of the husband and credited it as cash to the account of the wife; after this the plaintiffs gave notice to the bank that the husband before giving his check to his wife had transferred to them the balance in bank to his credit. Held, that the title to the check had passed to the bank before notice of the transfer to the plaintiff, and the bank had a right to charge it up against the husband’s account.</p> <p>The evidence not showing that the wife had been, guilty of any fraud in obtaining the check or had acted in any way other than in good faith, or that she was other than a bona fide holder of the check for an existing debt. Held, that no trust was impressed on the amount of the check carried to her credit.</p> <p>The cause of action alleged in the complaint being an equitable one, and the cause having been tried before the court without a jury as an equity action, and the cause of action alleged in the complaint not having been proved, and the complaint not having been amended to conform to the proof, Held, that a personal judgment could not be had; and further, that even if the evidence disclosed the existence of a cause of action for a personal judgment, the defendant against whom it was so disclosed had a right to a trial thereof by jury.</p> <p>The defendant, Patrick McCann, at special term, proceeded on the trial before the court without a jury without demanding a jury trial. This was all that appeared in the case on the point of a waiver of a right to trial by jury. Held, that the case contained no evidence of any waiver of a trial by jury.</p>

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

<p> False imprisonment, action for, against two defendants; evidence must establish contributory acts of both sufficient to establish conspiracy between them to procure the same. </p> <p>Held, that there was no evidence on the trial to sustain the verdict or a finding, that Simon Dessau instigated or requested the plaintiff’s arrest. It was error, therefore, in the court to refuse to dismiss the complaint, and it was error to submit the case to the jury as one for a conspiracy between the defendants, as to which there was not a particle of evidence as against the defendant Simon Dessau, and it was an error that affected both defendants. Sedgwick, Ch. J., dissenting.</p>

<p> Work, labor mid service must be contracted for, accepted, or the benefit of the same availed of by the party to or for whom they are rendered to enable the party rendering the same to recover compensation. </p> <p>The plaintiff was the owner of certain steamboats, kept for the purpose of rendering assistance to disabled vessels or extinguishing fires, and the captains of two of such steamboats, seeing the defendants’ warehouse in flames on the 20th day of January, 1886, proceeded to the docks adjoining the warehouse and endeavored to extinguish the fire. There was no express request by the defendants to the plaintiff or his agents to render such service on the said 20th of January, although during the time that the plaintiff’s boats were present and assisting in extinguishing the fire one or more of the officers of the company defendant were present. It also appeared that the agents of the plaintiff were requested to withdraw their boats, by one of the officers of defendants, on the evening of the 20th of January. That on the succeeding day the fire broke out afresh, and one of the officers of the defendants directed a police officer to request the plaintiff to send back the boats, and in accordance with such request the boats were returned on the 21st, and rendered service until the 23d.</p> <p>The defendants moved to dismiss the complaint so far as the services were alleged to have been rendered on the 20th of January, 1886, on the grounds that the plaintiff was not employed on that occasion, or even requested by defendants to do any work or service. This motion was denied. The motion was renewed at the close of the testimony and again denied, to which denials defendants excepted.</p> <p>Reid, that the defendants did not employ the plaintiff on the 20th of January, 1886, and were not placed in such a position that they were bound to notify plaintiff, as soon as they became aware of the fact that he was endeavoring to put out the fire, that he must stop or the defendants would not be responsible, etc. That the defendants did not accept of the service rendered by the plaintiff on that day, and did not avail themselves of the same. All that can be said is that they did not object when they saw others joining with their agents in efforts to extinguish the fire. It cannot be held that, under such circumstances, the owners of property being destroyed by fire are under any implied obligation to pay those who voluntarily appeared and aided in putting out the fire or in saving the property.</p>

<p> General assignment, declared fraudulent and void as made with the intent to defraud creditors, etc. </p> <p>In this case the court below, at trial term in equity, and the general term on appeal, held that the assignment by Richard L. Schulhof to Loew was made with the intent to hinder, delay and defraud the creditors of said Schulhof, and was fraudulent and void. The court below also found, as conclusions of law, that plaintiff was entitled to a money judgment against all the defen dants for the amount of the judgment recovered by the creditors, at whose suit he was appointed receiver, with costs, and judgment had been rendered against all in accordance with such conclusions. In regard to the defendants Kraus and Clara Schulhof, the court, at general term, held that, upon the facts found, they were not liable to pay to the plaintiff the amount of the judgment recovered by the said creditors, as none of the judgment debtor’s goods ever came into their possession or control, and neither of them received any portion of the judgment debtor’s property or any of the proceeds thereof. The property remained in the hands of the assignor until it was destroyed by fire, and neither of the defendants Kraus or Clara Schulhof have ever received any of the same. The complaint which seeks to set aside as fraudulent a bill of sale of property that had been absolutely destroyed before the commencement of the action, and the setting aside of which could give the creditor no relief nor advantage, states no equitable cause of action. There was no cause of action against defendants Kraus and Clara Schulhof, and the judgment as to them should be reversed and a new trial ordered, with costs to abide the event.</p>

<p> Party wall, character and requisites, agreement to build, construction oj agreement, etc. </p> <p>Parties agreed that plaintiff might build a party wall of twelve inches and locate one half of it on the defendant’s premises “ as a party wall to be continued and used as such," and the defendant agreed that whenever he should desire to use and should use the party wall in the erection of a building on his premises adjoining, that he would pay the plaintiff the sum of $741.16, that being one half of the sum that was to be expended for the erection of the party wall; and the plaintiff afterwards built a wall of twelve inches in thickness, one-half being on each lot, but on the side of the wall towards plaintiff’s house he left spaces in the wall to be used by him as flues. There were twenty-two of these spaces, and their depth was such that they reached over, upon the defendant’s lot, two inches 1 beyond the centre of the wall. The defendant afterwards built on his lot, a house, and did not use the party wall for the beams of his house but built next to it a wall eight inches in thickness upon which he placed the ends of the beams of his house. The only use he made of the party wall was to anchor to it the additional wall he built.</p> <p>This action was brought by the plaintiff to recover the sum named in the agreement that was to be paid by the defendant when he used the party wall. There was no proof that defendant, before proceeding to build his house, was aware of the fact that the plaintiff had placed these flues in the wall built by him.</p> <p>Held, that in the construction of this agreement, by ordinary rules, a common meaning must be attributed to the phrase “ party wall,” it not appearing that the agreement intended any special, local, or technical meaning. The common idea of a wall is that it is a solid structure, and it is reasonable to hold this in this case when the alternative held would permit the party building it to leave spaces or hollows in the wall to suit his interest and convenience, without consultation with, and the assent of, the other party; and it is impossible to justify the use by the plaintiff of two inches of the defendant’s land in making these flues for ■ plaintiff’s particular use and purposes. The wall built by plaintiff was not a party wall in the full sense and meaning*of that phrase and the agreement, and he is not entitled to recover for the same.</p>

Appeal by defendant from so much of a judgment dismissing a complaint as grants an additional allowance to the plaintiff computed upon the amount of a counter-claim.

<p> Practice—Oase on appeal, appellants' duty and right of on preparation of, respondent's duty in proposing amendments—Statement that case contains all the evidence as to striking it out. </p> <p>It is the duty of an appellant in making up a ease on appeal to insert therein so much of the evidence as he considers material to present the questions involved on the appeal; and if he intends to present for review questions of fact, it is his duty to insert in the case a statement to the effect that the case contains all the evidence taken upon the trial of the action, and he is entitled as of strict right to have such a statement in the case.</p> <p>Respondent's remedy, if the case does not fairly represent the testimony, is not to have the statement as to the ease containing all the evidence stricken out, but to propose amendments asking to have inserted in the case the evidence which he deems material and which he claims to have been omitted. If the respondent does not see fit by proposed amendments to call the attention of the trial judge to any material evidence that has been left out, it must be taken for granted that the ease presented by the appellant does contain all the material evidence.</p>

Appeal frorii an order made at special term granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee’s terms of sale and complete their said purchase.

Appeal by the defendant from a judgment entered in favor of the plaintiff upon the decision of the court at special term. The action was brought to foreclose a mechanic’s lien.

<p> Lease.—Action on breotch of covenant for the quiet and peaceful enjoyment of premises leased. </p> <p>No special damages for the eviction was alleged in the complaint, and the measure of damages is the value of the unexpired term less the rent reserved. Certain questions tending to show special damages were rightfully ruled out because special damages had not been pleaded. Neither of the witnesses, offered as experts, had any knowledge on the subject about which they were questioned, and their opinions were properly excluded.</p>

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

<p>Appeal from an order denying a motion made by the plaintiffs to open and vacate the report and findings of the referee herein, and to take the testimony of another witness, and to direct the referee to proceed herein as if his said report had not been delivered.</p>

<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 was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendants. Each of the defendants appeared separately and denied the negligence.</p>

<p> Action to recover damages for false and fraudulent representations in regard to shares of capital stock. </p> <p>Held, that the dismissal of the complaint on the trial of this action was error, for there was evidence in the case from which a jury could properly conclude that certain statements as to existing facts, set forth in the complaint as having been made by defendant, were false, and made by the defendant with intent to deceive the plaintiff, and thereby plaintiff was deceived and induced to purchase the stock in question. The evidence and the case should have been submitted to the jury.</p> <p>The evidence that the respondent undertook to buy for the appellant certain stock owned by one Allen, thus acting as the agent of appellant, and the subsequent sale of his own stock to appellant, was a fraud in law for which the appellant could rescind and recover the money paid, furnishes another sound reason for the reversal of this judgment in accordance with the case of Conkey v. Bond, 36 N. Y. 427.</p>

<p> Security for costs, when required by statute and when the court, in its discretion, may direct the same. </p> <p>Section 3271 of the Code of Civil Procedure provides, that in an action brought by or against an administrative capacity, the court may, in its discretion, require the plaintiff to give security for costs.</p> <p>In this case, the court, on motion, did so require, and the only question presented on the appeal is whether any grounds existed for the exercise of such discretion. Held, that in the present case it seems in harmony with the Code to assume the responsibility of the plaintiff, if the administrator satisfy the court that he has a good cause of action, but the allegations of the complaint are upon information and belief, and the court is not informed of the sources of the information. This fact, accompanied by the specific statements in the affidavits submitted by the defendant in regard to the circumstances of the accident, supplied sufficient grounds for the exercise of the discretion of the court below. Upon the concession of pecuniary irresponsibility on the part of plaintiff, it certainly became his duty to satisfy the court that he had a good cause of action against the defendant, which he failed to do.</p>

<p>Appeal from an order denying motion to vacate a judgment. The case appears fully from the opinion of the judge at special term, which is as follows:</p>

<p> Attorney at'law, services of, under special agreement. </p> <p>Plaintiffs were employed as attorneys at law, by defendants, to litigate certain claims or make settlement of same. The settlement negotiated was not satisfactory to.defendants, whereupon plaintiffs gave to defendants a blank consent for the substitution of other attorneys, and wrote them a letter consenting that defendants should proceed towards the settlement, and added these words: “in the event that yo'u settle these controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided in the agreement.” The referee found, and the evidence supported the finding, that the terms of settlement were not substantially the same terms that the defendants had rejected. Held, that the plaintiffs were not entitled to recover the compensation provided for in the agreement.</p>

<p>Appeal by plaintiff from an order vacating order for examination of defendants to enable plaintiff to frame complaint.</p>

<p>Appeal from an order of the court at special term.</p>

<p>Appeal from a judgment entered upon a verdict rendered, by the direction of the court, in favor of the plaintiff.</p>

<p>Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial made upon the judge’s minutes.</p>

<p>Undertaking given to procure an orcter of arrest, amount for which sureties are liable.</p> <p>The complaint in this action charged the defendant, as one of the sureties ' upon an undertaking given to procure an order of arrest, and it was also averred therein that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250, and that such judgment was paid. On the argument of the demurrer to the complaint, it was not denied that this payment enured to the benefit of the surety, this defendant, but it was claimed that he remained liable to ■ pay damages sustained by plaintiff by reason of the arrest, not exceeding $250. The undertaking of the surety is “ that if the defendant in the ac- . tion do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest in said action, not exceeding the sum of two hundred and fifty dollars,” in accordance with section 559 Code Civil Procedure.</p> <p>Weld, that the sum specified (§250) is intended to describe the limit of the liability of the surety; that all costs and all damages shall be taken in conjunction, and that to them together shall be applied the words of the undertaking “ not exceeding the sum of two hundred and fifty dollars ; ” and costs having been paid to the extent of $250, the surety is not liable further upon the undertaking.</p>

The complaint was dismissed -at the trial term, and the exceptions were ordered to be heard in the first instance at general term.

Appeal by defendants from judgment in favor of the plaintiff, entered upon the decision of a judge at special term. The facts .sufficiently appear in the opinion.

<p> Contract for the purchase of goods, payment to be made by a draft as thereby provided. </p> <p>The contract provided for payment by draft on defendant’s London bankers drawn by Green & Whineray and in no other way. Held, that the contract contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to defendant. The plaintiff sought to overcome the difficulty by proving against the objection and exception of the defendant, that it was orally agreed that defendant should accept the goods on their arrival in New York and pay cash for them. Held, that the positive denial of the defendant that such agreement was ever made, the case presented a question of fact which should have been submitted to the jury, for the defendant moved to go to the jury upon it and duly excepted to the denial of his motion.</p>

Appeal by defendant from judgment entered upon verdict of jury and from order denying motion for a new trial made upon the judge’s minutes. The facts sufficiently appear in the opinion and the head note.

<p> Negligence—Action for damages for personal injuries sustained, in consequence of the negligence of the defendant. </p> <p>The injury alleged was, in part, of the arm of plaintiff. A physician who had attended the plaintiff testified in her behalf, that when he last examined her arm she had persistent pain on its motion. Defendant’s request to strike out this testimony on the ground that it involved the assumption that there was pain “now," was properly denied. A fair interpretation of the answer of the witness shows that it did not involve the assumption claimed.</p> <p>A question put on behalf of the plaintiff to same witness was, “You examined her (plaintiff) a few days ago and she told you, while you were examining her, that she was suffering from pain in that arm ? ” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s having pain, and upon the ground that it involved an assumption that there was pain at the present time. Held, that the question was not objectionable upon the grounds stated.</p> <p>A question as to the permanency of the injury was objected to on the ground that such permanency was not alleged in the complaint. Held, that this objection was properly overruled as there was no necessity for such an allegation in the complaint.</p> <p>Held, that defendant’s proffered evidence as to the extent of the injury to tiie car in which plaintiff was a passenger, was properly excluded. It had no relevancy to the plaintiff’s injuries or to the force of the collision as described by the plaintiff.</p>

<p> Indemnity bond to sheriff touching acts of deputy. </p> <p>This action was brought upon a bond of indemnity, executed by the defendants, in the penalty of $10,000, and conditioned to save harmless the plaintiffs’ testator as sheriff touching the acts of the defendant Dodge, as deputy sheriff. The plaintiffs’ case and the amount of defendant’s liability were substantially admitted by the pleadings and admissions of counsel, unless the affirmative defence set up was established, namely: That on November 28, 1877, the defendant McDermott notified plaintiffs’ testator that he declined being surety for defendant Dodge from that date. That thereafter Dodge procured a new bond to be executed bearing date December 1, 1877, which bond was delivered to plaintiff’s testator, and substituted for and in the place and stead of the bond sued upon, and thereupon defendants were Released, etc. Held, that there is no evidence in the case that the plaintiffs’ testator, Bernard Reilly, was notified, prior to the commission of the acts complained of, that defendant Mc-Dermott declined longer to be a surety for defendant Dodge. Service of a notice to that effect upon the under-sheriff November 28,1877, was not service upon the sheriff. Section 56, Art. 5, Tit. 2, Chap. 3, Part 3, Revised Statutes does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose, it can only be made so by service upon the person indemnified individually, and not as an official, for in legal effect the bond was to Bernard Reilly and not to Bernard Reilly as sheriff. The acceptance of the new bond. February 5, 1878, certainly discharged the sureties of the former bond, but this discharge was operative only from the date of the acceptance of the new bond. The action of the under-sheriff in notifying Dodge to get another bondsman, and that he should receive no new business, did not operate to prevent Dodge from exercising the office of deputy sheriff by virtue of the process given to him and did not release the sureties from their obligation, and it was, in fact, while he was exercising the office that the acts complained of were committed and before the new bond was accepted. The sureties were liable generally upon the bond and the plaintiffs were entitled to judgment accordingly.</p>

. Appeal by defendants from judgment entered upon findings and conclusions made at special term.

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

<p> Order for examination of plaintiff before trial relative to matters pertinent to the issues under the Oode—Jurisdiction of the court to make such an order. </p> <p>It appeared from the papers read on this motion, that the plaintiff is not a resident of this state but resides in the state of Virginia; that he has not been within this state since the commencement of this action and does not intend to come here before trial. Held, that the court possesses no inherent power to order the examination of a party before trial at the instance of an adverse party. The jurisdiction is purely statutory and depends solely upon the provisions of the Code. Therefore, whenever it appears that the party sought to be examined is a non-resident of the state, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make what appears to be a useless order. In the present case no such proof was adduced, and, moreover, it affirmatively appeared that service of the order cannot be made within the state. Irrespective, therefore, of the question of the good or bad faith of the application, this order was properly refused. There is no power in the court to require the plaintiff, who is a resident of another state, to come to New York from such state for the sole purpose of being examined.</p>

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

<p>Appeal from an order made at special term setting aside the summons in this action and all proceedings therein.</p>

<p>Appeal from an order denying plaintiff’s motion for a discovery and inspection of defendant’s books and papers.</p> <p>The following opinion was delivered by the court at special term, viz.:—</p>

<p>Appeal from a judgment dismissing the complaint with costs.</p>

<p>This is an appeal from so much of a judgment entered upon the decision and by the direction of the special term of this court as by its terms “ adjudged that plaintiff is not entitled to recover of the defendant the principal of the- bonds mentioned and described in the complaint in this action,” and also from that part of such judgment which by its terms “ limited the recovery in the action to the interest upon said bonds represented by the interest warrants mentioned in the complaint; ” and also from such parts of said judgment “ as awarded costs by way of an additional allowance to said plaintiff, or by which the recovery of any sum whatever is adjudged to said defendant,” and from the order making such allowance of additional costs.</p> <p>The action was for the recovery by the plaintiff of the principal and interest secured by three several bonds (with interest warrants or coupons attached) of which the plaintiff was the holder and owner, issued by the said defendant company, which bonds bore date the 1st day of July, 1887, and were numbered 43, 44 and 45 and were payable to bearer, for the sum of $1,000 each, on the 1st day of July, 1912, with interest at the rate of 6 per cent per annum, payable semi-annually, on the 1st day of July and January in each year; on the ground that such principal and such interest as remained unpaid had become due and payable by the terms of the bond. The said defendant having made default in the payment of the half-year’s interest due upon each of said bonds on the 1st day of January and July, in the year 1889, such interest having been duly demanded in manner and form as required by the condition of each of said bonds, and such default having continued for six months without the consent of the plaintiff.</p> <p>The answer admits the ownership of the bonds, etc., the continuance of the default; denies the demand, and avers substantially in bar and avoidance that the remedy sought in this action could not be had (except as to the interest). That the plaintiff was confined to the remedy provided by the terms of the mortgage, and that such remedy was exclusive, and the payment of the bonds, etc., could only be enforced by the foreclosure of the mortgage in the manner provided therein.</p> <p>The court found, as matter of fact, that the principal of the several bonds, as also the interest secured by the several coupons in suit, was due and payable at the time of the commencement of the action, and directed judgment for* the interest, but held “ that the plaintiff was not entitled to recover in this action the principal of said bonds.” And at the request of the plaintiff, as matter of fact, “ that the bonds mentioned in the complaint in this action did, by reason of the provisions contained therein and in said trust deed or mortgage, become due and payable by reason of the continued default of the said defendant in the payment of the interest thereon, as aforesaid, before the commencement of this action, but that the remedy of the plaintiff for the enforcement of the payments of said bonds is provided for by the terms of said trust deed or mortgage in the paragraphs thereof, above found, and is confined to the remedy so provided.”</p> <p>Judgment was entered in said action on the 28th day of June, -1890, in accordance with the conclusion above cited.</p> <p>The case as presented to this court is confined to the record and exceptions appearing therein under § 998, Code of Civil Procedure.</p> <p>The clauses of the bond and trust deed or mortgage are as follows: The trust deed provides: “ If default be made by the said party of the first part (defendant) on _any half-year’s interest on said bonds and the warrants or coupons for such -interest shall have been presented and its payment demanded, and such default shall have continued six months after such demand without the consent of the holders of such coupon or bond, then and thereupon the principal of all of said bonds shall be and become immediately due and payable, anything in said bonds to the contrary notwithstanding, and the said party of the second part may so declare, and upon the written request of the holders of a majority of said bonds then outstanding shall proceed to collect both principal and interest of all such bonds outstanding by foreclosure and sale of said property or otherwise as therein provided.” The provision of the bond as to the effect of such default is as follows: “ And in case of the default in the payment of any of the interest coupons attached to this bond in the manner provided in the trust deed, or mortgage hereinafter mentioned, then and in that case the principal sum of this bond shall become due in the manner and with the effect provided in the said trust deed or mortgage.”</p>

<p>Appeal by defendant from a judgment entered in favor of plaintiff upon the decision of a judge at special term, a trial by jury having been waived.</p>

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

Appeal by John B. Alden, from an order of the special term adjudging him guilty of contempt of court ■ for bringing an action without the leave of this court against George H. Stonebridge, Jr., who at the time was the receiver of the New York Book Company, appointed by this court.

<p> Title to real estate.—Action to recover so much of the purchase price of real estate, paid at the sale by plaintiff, with the expenses incurred by him in examining the title, etc., on the ground that the defendants could not convey nor assure a good title to the premises. </p> <p>Held, that the plaintiff was entitled to receive from defendants a good marketable title within the rule laid down by the Court of Appeals in The Methodist Episcopal Church Home v. Thompson, 108 N. 7. 618, and in Moore v. Williams, 115 lb. 586. He was not bound to show that the title tendered was absolutely bad. Upon the whole case, the judge of the court below was fully justified in finding that the defendants, did not offer to give, and could not give, a good marketable title. The defects in the title, and the legal questions arising thereon, fully appear from the opinion of the court.</p>

<p> Contract under seal, delivery of, parol evidence admissible to establish the fact that the delivery was conditional, and the condition never fulfilled. </p> <p>A sealed contract, not relating to an estate in lands, that was executed and delivered to take effect when some act had been done or condition fulfilled by one of the parties thereto, does not become binding upon the parties thereto until the act is done or condition fulfiled. Parol evidence is admissible to establish the facts relating to such conditional delivery and to the act and condition required to be done and fulfilled before the contract became of binding effect as between the parties. The contract in question was made by William H. Russell and the plaintiff, as parties of the first part, and the defendants, as parties of the second part, and by its terms the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a certain invention covered by a patent, issued to Russell, during the term of the patent ; and as consideration for such grant, the parties of the second part (defendants) agreed to manufacture the patented article and to pay to each of the parties of the first part the sum of two and one-half cents on each article manufactured as a royalty. This agreement was executed by all the parties under their respective hands and seals, and one copy so executed was actually delivered to the plaintiff. The answer admits the making of the contract, but alleges, as a defence, that it was agreed between the parties, at the time of making, that it was not to take effect as to the plaintiff until after he had acquired a one-half interest in the patent by the performance of an agreement between him and Russell, the other ]Jarty of the first part to the contract, for the purchase of said half interest. That the plaintiff never carried out nor fulfilled such agreement with Russell, and never acquired a half interest in the said patent, and subsequently abandoned all attempt to gain an interest in such patent, and relinquished and transferred to said Russell all his rights and interest in this contract.</p> <p>On the trial the defendants offered to prove, and did prove, by parol testimony, against the objection of the plaintiff, the oral agreement between the parties as stated; and upon this evidence the court found, as matters of fact, that at the time of the execution of the contract it was expressly agreed between the parties that it should not take effect as a contract until the plaintiff should have acquired a one-half interest in the patent from Russell, etc., and that the plaintiff had never acquired that interest. These findings were fatal to plaintiff’s case, if the evidence upon which they rested was admissible, and the only question presented on this appeal is whether or not it was error to receive such parol evidence.</p> <p>The court, on review, held as follows: (1) A deed of real estate delivered to . a party or to his authorized agent, and not to a stranger, is absolute, and parol evidence of conditions qualifying the delivery, or affecting its delivery, is inadmissible. (2) Parol evidence is admissible to prove that a writ- ' ten paper, not under seal, which in form is a complete contract, although delivered, was nevertheless not to become a binding contract until the | performance of some condition or act, the proof of which rested in parol evidence. (3) It remains to be fully determined what the rule is in regard to an instrument under seal which is not a deed or conveyance and does not relate to the transfer of the possession of land. Under this last point great confusion exists among the decisions. Formerly the tendency was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point at issue and now under consideration has never been put to rest.</p> <p>Á careful analysis of all the cases, with reference to the state of facts peculiar to each, shows that the existing confusion arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery, has been almost exclusively in cases of instruments under seal in which the delivery constituted or involved a symbolic transfer of the possession of land.</p> <p>Held, that after due consideration of all that has been urged on .both sides, the rule prohibiting parol evidence as to a qualified or conditional delivery should be confined to the class of instruments in which the delivery constitutes or involves a symbolic transfer of the title and possession of land. In this view of this case the evidence was properly admitted and the exceptions of the plaintiff are untenable..</p>

Appeal by the plaintiff from a judgment for costs entered. by the defendant upon the verdict of a jury in favor of the plaintiff for six cents, and also from an order denying plaintiff’s motion to set aside the verdict and for a new trial.

<p> Injunction, order of ex parte, vacation of, when it should he continued durr ing the pendency of the action. </p> <p>This action is brought by plaintiff to enjoin and restrain defendant, his agents,, etc., from building or permitting the.building or erection or use or maintenance of any structure, upon an alleged reserved space of land between the street line and a line drawn parallel thereto and eight feet therefrom, and that any structure already erected or in process of erection, in violation of the agreement set forth in the complaint, be ordered and adjudged tobe removed by defendant, and that the defendant be so enjoined during the pendency of the action; and for one thousand dollars damages.</p> <p>The complaint alleges the ownership in 1846 of sixteen lots of hind on the northerly side of Thirteenth street, between Broadway and Fifth avenue, in divers persons, naming the alleged respective owners of each lot. It further alleges that such owners agreed in writing to reserve or lease a space in front of said lots, as lies between the street and a line drawn parallel to said street, and a distance of eight feet therefrom, as and for an open space or court which should never at any time thereafter be appropriated for, or be in any manner occupied by, any edifice, building or wall, orbe in any manner obstructed other than by the necessaiy steps for entrance, verandas and balconies, platforms and pedestals and iron fences and railings connected therewith, and enclosing the same, and the foundations and copings upon which said iron fence or railing may be placed. An alleged copy of the agreement is annexed to the complaint. This agreement and the complaint recites that lot No. 47 was owned by Alonzo A. Alvord; that Susan Alvord (who was the" wife of Alonzo A. Alvord) acquired a triangd- . lar strip of land between lot No. 47 (one of said lots) and Thirtieth street from James W. Anderson and wife in 1883, but afterwards the owners of ■ said lots and parties to said agreement built houses on said lots in aoeordanee with the sámeV that by virtue of certain mesne conveyances from Lewis Beach, an owner, and one of the parties to said agreement, the plaintiff became seized of one of these lots; that defendant, by like conveyances fromAlgnzti A. Alyoi'd.and'Susan Alvord, his wife, became seized of said lot No.' 47,"together with the said triangular piece, and is building and threatens to build an addition and projection in front of the building on his lot on the space reserved as an open space or court in front of said lots by said agreement.</p> <p>An ex parle- order of injunction was made in the case by Judge Tbuax forbidding the violation of the covenant in the said agreement and the erection of said addition and projection. This order was vacated by the order of Judge Dugro and its continuance during the pendency of the action denied. This appeal is from the last-named order.</p> <p>It seems that Judge Dugro conceded that the merits were entirely with the appellant, but that the injunction should be vacated upon a question of law, namely : That the covenant which was violated, having been executed in 1846 by Mrs. Alvord, who wuis a married woman, although it was acknowledged by her, was not so acknowledged separate and apart from her husband, and that, therefore, no estate passed, and the defendant was not bound by the equity of the covenant.</p> <p>Held, that the covenant was not a conveyance within the statutory meaning of that term respecting the acknowledgment of conveyances by married women. It did not purport to grant or convey any estate, and none passed or was intended to pass by it. r Its objects were expressed by these words: “ The parties to these presents have agreed with each other to improve their said lots * * by leaving eight feet * * on the front thereof as an open space or court.” It was intended to insure uniformity of construction in the entire block that one might build his house back from the street eight feet without the light, air or vision being cut off by projections on either side. The execution of the plan by the parties was all that was necessary to make it binding upon those who agreed to it, or their successors in interest or estate. Such an agreement was a wise and beneficent one, and alike beneficial to all the owners. The objection to the defective acknowTedgment is personal to Mrs. Alvord, for she might at any time have corrected it, and no intervening right or equity prevents this from being done by her now if it were necessary; but it is not necessary. Mrs. Alvord is still living and has never repudiated the covenant and does not seek to do so. The houses were built on this block, in confirmity to this covenant, over thirty years ago. The houses were erected and the covenant consummated during the life of the husband whos e agreement (even regarded as a . conveyance) was valid while he lived by virtue of his exclusive right of • control and of 'sale. When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge which, like other charges, recognized in equity, becomes effective when . declared so by the courts. A wife under the law existing at the time might by her sole act charge her estate in equity under some circumstances in which she had not the power of conveyance. Mrs. Alvord charged her ■■ estate in this instance. It needed no conveyance or writing to create this easement, even if the right conferred rises to the dignity of that title. The act or consent of all those interested was sufficient.</p> <p>The authorities in this state go so far as to hold that these covenants run with the land, and without any assignments of the covenants may be enforced by any owner or occupant.</p> <p>Injunctions in this class of cases are granted and held almost as of course upon proof of a breach of the covenant. The defendant bought with knowledge of the covenant and took subject to it. It was binding upon the Alvords and is certainly valid as to the plaintiff, a remote grantee, charged with notice of the equity. The plaintiff fully established her right to equitable relief by injunction, and it was error to vacate the same. The order appealed from must be reversed and the application to continue the injunction granted, with costs.</p>

<p> Demurrer to counter-claim in answer on the ground that it does not state facts sufficient to constitute a cause of action. </p> <p>The facts in the case fully appear in the opinion, of the court.</p> <p>On the review Held, construing all the allegations of the answer as favorably to the defendants as the rules permit, the answer merely shows that the plaintiffs should not have advanced their money on the draft without first obtaining clean bills of lading without any qualification whatsoever. The plaintiffs were not the shippers of the goods; did not obtain the bills of lading from the carrier, but from Braun and Bloem, the parties from whom the defendants received the goods. The plaintiffs were not the agents of the defendants in the sense that imposed upon them the duty of seeing to the manner of shipment of the goods, or to the phraseology of the bills of lading, or if communicating to the defendants the mode of shipment or contents of the bills of lading. All these, and such like things, were matter of concern between Braun and Bloem on the one hand and the defendants on the other. There being no duty, and consequently no breach, the defendants could not have svrffiered any damage from any act or omission of the plaintiffs in the premises, and hence the counter-claim alleged no cause of action against them. For these reasons, without considering the other objections raised and urged to the answer, on the ground that it contains conclusions instead of facts, the demurrer was properly sustained.</p>

<p>Appeal by defendants from order made at special term, striking out portions of answer.</p>

<p> Demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action. </p> <p>The absence of contributory negligence on plaintiff’s part need not be alleged in the complaint; that fact is involved in the allegation of defendant’s negligence. Prima facie, all servants of a common carrier employed in the railway service, are fellow servants, and neither has a cause of action against the master for the negligence of another. The rule is, that all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are employed in the same general business, although in different grades or departments of business, and are fellow servants who take the risk of each other’s negligence. The rulings of courts in other states, drawing a distinetion between the grades or departments of service under a common master, and giving a remedy to a laborer or clerk in jured by an engineer, etc., have never been approved by the courts of this state, and are contrary to their decisions.</p>

The plaintiff sued to recover $675 for services rendered to the defendants in procuring a purchaser for their property on the Northwest corner of 9th Avenue and 17th street, at $67,500. The plaintiff is not a broker, and relied upon a special agreement to pay him one per cent commission.

The plaintiff sued to recover $542.30, for so much money, “ laid out and expended for and at the request of the defendant.” The action was commenced April 8, 1890, and ten days afterward the plaintiff served a bill of particulars of his demand, the first item of which was for “ cash loaned defendant $234.” The answer which consisted of a “ general denial,” was served May 5, 1890.

The action, was for the conversion of a bay horse, buggy and harness belonging t.o the plaintiff. The defendant admits the ownership of the property by the plaintiff, and alleges in defence that the property was sold at auction to satisfy a claim due to the defendant, and that at such sale the defendant, at plaintiff’s request, bought the property in at $240, and that the plaintiff then pledged the same with the defendant as security for all his charges aggregating $342.16.

The action is upon a policy of insurance issued by the defendant, July 28, 1888, upon the steamship “ Samana,” which then belonged to the Steamship Samana company. The plaintiff owned all the stock of this company, except a nominal amount of twenty-five dollars which was held by five persons to satisfy some requirement of the English law. He was the managing owner, and for practical purposes the company. The vessel was valued in the policy at $45,000.

The action is on a bill of exchange accepted by the defendants and transferred to the plaintiff before maturity. The circumstances leading to the acceptance and transfer are substantially as follows: “ The defendants, merchants, doing business in New York, were accustomed to made purchases of earthenware, of the firm of Henry Alcock & Go. of Colridge, Staffordshire, England, with which firm they had a line of credit.

Appeal by plaintiff from an order sustaining a demurrer to the complaint, and from an interlocutory judgment entered thereon.

Appeal by plain tiff from judgment entered on a verdict of a jury for the defendant, and from an order denying plaintiff’s motion for a new trial made upon the judge’s minutes.

Appeal by defendant from judgment entered on verdict for plaintiff as directed by the court, and from order denying motion for new trial. On the motion for new trial the judge below wrote as follows:—

<p>Appeal by defendant from judgment entered on a verdict for plaintiff, and from an order denying motion for new trial.</p>

<p> Receiver, his rights, powers and duties in relation to creditors who had semred a lien upon property of the company before his appointment. </p> <p>Held, that.the petition and.motion of the creditors that the order of injunction in these proceedings be so modified as to allow them to enter judgment and issue executions in their actions in the city court, was properly denied.</p> <p>It clearly would not have been right nor proper to allow these creditors to proceed ex parte, and without such protection to the assets as the presence and power of the receiver afford. If the attachments in the actions are valid, there is a lien upon the property levied upon in favor of the creditors in those actions. That lien will be preserved and, so far as proper, satisfied in the administration of the assets by the receiver. There is no reason for the granting of any modification of the injunction at the present time. If, hereafter, there is any improper action or delay on the part of the receiver whereby the petitioning creditors shall suffer, it will be in time for them to move for protection, etc.</p>

<p> Promissory note, defence that plaintiff is not the bona fide owner or holder of same. </p> <p>This action was against the defendant as the maker of a promissory note. The payee, after endorsing the note, transferred it to plaintiff. The only question in the case is, whether the plaintiff was incontrovertibly shown to have been the bona fide purchaser of the note.</p> <p>The defendant’s counsel did not claim, on the trial, that the jury should pass upon the credibility of the witnesses who testified to the circumstances of the discounting of this note. These circumstances did not disclose any notice to the plaintiff of any defect in the claim of payees and endorsers against the defendant. Plaintiff gave for the note its face value less interest to the day of its maturity.</p> <p>After a review of the testimony and facts in the case, in any way tending to establish the defence, Held, that the judgment should be affirmed.</p>

Appeal by plaintiff from a judgment in favor of defendants entered on a verdict for plaintiff for six cents damages * from an order denying plaintiff’s motion for a new trial on the ground that the verdict was for insufficient damages, and from an order refusing to allow the costs of the action to the plaintiff. The facts sufficiently appear in the opinion.

<p> Action to obtain injunction relief against the maintenance and, operation of defendants' elevated railway in front of plaintiff's premise's, and damages sustained therefrom, etc ■ 1 </p> <p>Upon the trial plaintiff sought to recover not only damages to the prop- . erty during his ownership of the same, but also damages sustained by his father, as former owner, between April and October, 1882, which had been assigned to him. The defendants insisted throughout the trial, that these assigned damages were not incidental to plaintiff’s equitable cause of action; and that, as to them, they had a right of trial by jury. The trial judge overruled the objections of the defendants, and, against their exceptions, determined to plaintiff such assigned damages.</p> <p>Held, that this ruling constituted error. The principle and rule that permits past damages to be assessed in actions of this character as incidental to the relief granted, cannot be so extended as to permit a plaintiff to purchase an outstanding claim from another person that is enforceable only at law and to write it with a claim of his own for equitable relief, and thus deprive defendants of the right to a mode of trial which would have been secured to them had the claim been put in suit by the original holder.</p> <p>Held, also, that, upon the pleadings and the evidence on the trial, the award of past damages and the assessment of damages to the fee value should not be permitted to stand. The award of damages must be founded upon a fair and reasonable construction of the evidence, in view of all the facts and circumstances disclosed, and the probabilities deducible therefrom according to common experience, and such a construction of the evidence in this case does not sustain the relief granted. The amounts awarded are unwarranted by the evidence, as well as in excess of the amounts demanded in the complaint.</p>

<p>Appeal from judgment entered in favor of defendant for $615, with interest and costs, on report of referee •to whom the case was referred to hear, try and determine the issues.</p>

Statement of the case by the Court. The action is in replevin to recover the possession of certain goods, of the value of about $7,000, which were sold by the plaintiffs and delivered by them to the defendants Carpenter and Lockwood, upon the faith of certain representations as to their financial standing and condition, which turned out to be ‘fraudulent. Part of the goods have been made up into 832 waterproof garments, identified in the complaint by certain numbers.

The judgment awards to the plaintiff the sum of $780.42, for past damages, and contained an injunction restraining defendants from operating their railway, in front of the premises, unless within a time specified they pay the sum of $1,500.

Appeal by defendant from order denying its motion to set aside service of summons. The following opinion was delivered by the court at special term:

Cross-appeals taken by plaintiff and defendants, from a judgment rendered in favor of the plaintiff and against the defendants upon a trial by the court without a jury. The following opinion was delivered by the court at special term :—

<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> Action to recover moneys that were claimed to have been paid in excess of the contract price for the purchase of land. </p> <p>It is undisputed that plaintiff purchased of defendant a tract of land, known as “ Vergemore,” at De Lancey’s Neck, in the town of Mamaroneck, N. Y., at auction, on June 4th, 1890, for the sum of $3,125 per acre, pursuant to the terms of sale which described said tract of land as containing 22 57-100 acres. After signing the agreement to purchase, annexed to said terms of sale, and paying the sum of $7,058,12, ten per cent, of the purchase price as therein provided for, plaintiff claims to have discovered that the said premises did not contain 22 57-100 acres, but contained only 18 734-1000 acres of land and no more. Thereafter, on July 7, 1890, plaintiff tendered to defendant the sum of $51,490.63 (making with the $7,053.12 paid on the day of sale, a total of $58,543.75), which plaintiff claimed was the balance of such purchase price, being at the rate of $3,125 per acre for 18 734-1000 acres of land, and demanded a deed pursuant to said agreement. Defendant, however, refused to accept such payment or deliver such deed upon the ground that said premises contained 22 57-100 acres, and that the total purchase price was $70,531.25. Thereupon plaintiff paid defendant said last named sum of $70,531.25, and received from the latter a warrantee deed of said premises, with the understanding and right to plaintiff to receive back and recover of defendant so much of said purchase money as should equal the excess thereof, over and above the price of the actual contents in acres of said premises to be determined. in this action, at the rate of $3,125 per acre.</p> <p>The plaintiff claims that the actual contents of said premises so purchased is 18 731WL000 acres, and in his complaint demands judgment for the sum of $11,987.50, with interest from July 8, 1890, which plaintiff claims represents and is equal to the excess of said purchase money so paid on the basis of 22 57-100 acres over and above the price of said actual contents in acres of said premises at the rate of $3,125 per acre. The defendant puts in issue the allegations that said premises contain only 18 734-1000 acres of land, and insists that they consist of and contain 22 57-100 acres of land.</p> <p>The question, whether these premises consist of less than 22 "57-100 acres is the pivotal point in the case. No question of title is raised nolis any question as to the character of the sale presented. The only question is, how many acres does the deed convey P Held, that the descriptive clause in the deed covered premises to low water mark on Long Island Sound; and with that mark as a boundary it was clearly established that the premises or plot, described in the deed, contained 22 57-100 acres. The plaintiff’s reasoning that high water mark was the boundary, and that there was only 18 731-1000 acres in the plot, is not sustained by the decisions cited by the court.</p>

Appeal by plaintiff from a part of an order made at special term, upon plaintiff’s motion for an injunction pendente lite. The following opinion was delivered by the court at special term :—

<p>Appeal from the judgment of the special term in favor of the plaintiff and against the defendant for $11,531.96.</p>

<p> Chattel mortgage, prior liens based thereon—Conversion of property. </p> <p>This is an action for conversion.. On October 28,1889, the Yonkers Brass Works, a copartnership composed of Samuel Hunt, Herman Siebert and Charles Florence, executed and delivered to the plaintiff a chattel mortgage payable in thirty days, and which mortgage covered principally the machinery and tools of the Yonkers Brass Works at Yonkers, 'New York. The mortgage to the plaintiff was for twenty-three hundred and fifty dollars, and was given to secure an indebtedness for money loaned and goods sold exceeding said sum. There is no dispute but that the Yonkers Brass AVorks owed the plaintiff said sum. About a month prior to the giving and filing of the mortgage to plaintiff, the said Yonkers Brass .AVorks executed and delivered a chattel mortgage to one Jewett to secure the payment of a promissory note for twelve hundred dollars, dated September 21, 1889, and payable in twelve months from its date, with interest, and providing that until default should be made in the payment of the said-sum of money that the Said Yonkers Brass Works were to-remain and continue in peaceable possession, etc. Subsequent to the execution and delivery of both of these mortgages said Yonkers Brass Works, on November 12, 1889, executed a bill of sale whereby they transferred to the defendant all the property of the Yonkers Brass Works, including the property in question in this action; and at the same time delivered to the defendant a key of the factory in which the chattels were contained. That the property was taken possession of by the defendant in this action was proved beyond the shadow of a doubt. On December 5, 1889, the plaintiff foreclosed his chattel mortgage at the city of Yonkers, New York, the foreclosure sale taking place in front of the factory of the Yonkers Brass AVorks. The defendant was represented at said sale by its attorney, Mr. Perry, who refused the plaintiff admission to the factory, and stated that the goods and chattels offered for sale belonged to the defendant. The sale proceeded and the goods and chattels were bought in by the plaintiff, but he could not obtain possession of them. On December 10, 1889, the plaintiff served on the defendant a written demand for the possession of the property, which was refused, defendant stating that it was its intention to hold on to the property. On December 30, 1889, the plaintiff commenced this action, and after the defendant had answered therein, the first or Jewett mortgage was assigned to one Roy, who made an arrangement with defendant by which that mortgage was to be considered then due, and on the 28th day of February, 1890, it was foreclosed and the defendant became the purchaser, and thereupon it served an amended answer setting up these facts as a further defence. Held, that the defendant acquired no rights that can affect the issues in this action by the purchase of the chattels at the sale under the foreclosure of the Jewett mortgage, which was considered due by the arrangement between Roy and defendant. Whatever right of action the plaintiff had at the commencement of this action could not be taken away from him without his consent, and he was not a party to said agreement or foreclosure, nor did he acquiesce therein or assent thereto. The bill of sale of the chattels to the defendant, after the execution and filing of the mortgage to the plaintiff, cannot and did not deprive the plaintiff of any rights under his mortgage. That bill of sale was executed and delivered to defendant with full knowledge of the two preceding mortgages.</p> <p>The principal error assigned by defendant, was the refusal of the court below to permit defendant to show that, at the time of the execution of the mortgage to the plaintiff, the plaintiff agreed to start in business again the persons who gave the mortgage before the expiration of the time mentioned in the mortgage, which defendant claimed was a part of the consideration for the execution of the mortgage. Held, that the question here presented is not on the admission of parol evidence to explain, vary, or contradict a written instrument, nor is it a question as to the admission of parol evidence tending to establish an independent agreement. There being no agreement claimed as between plaintiff and defendant, the latter cannot avail itself of a breach of contract between plaintiff and the Yonkers Brass Works. If such an agreement existed and was a part of the consideration of the mortgage, it constitutes no defence here, and the rulings of the trial court on this question were proper.</p> <p>The facts in the case show a conversion of the property in question by the defendant.</p>

<p>Appeal from a judgment in favor of the plaintiff and against both defendants, entered on the verdict of a jury, and from orders denying the motions of the defendants for a new trial.</p>

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

, at trial term, a jury having been waived. The following statement and opinion was delivered by the court at trial term : “ The plaintiff, a corporation doing business at Chattanoga, Tennessee, sues the defendants, as makers of a promissory note, dated August 15, 1889, wherein they ■promised to pay, four months after said date, to the order of the North Alabama Lumber and Manufacturing Company $1,463.91. The payees endorsed and transferred the note to the plaintiff.

Motion by receiver for an order permanently restraining and enjoining William Eggert and Edward Eggert, the sheriff of the county, Charles Wahlig, Frank A. Wahlig, and Frederick Wahlig, Michael Goode, city marshal, and all other persons, from taking any further steps in various actions and proceedings heretofore taken on behalf of them or either of them against “ The Christian Jensen Co.” Second—Directing the receiver to borrow sufficient money to enable him to properly box…

<p> Negligence—Excessive damages, </p> <p>Held, in this case,- that, upon the facts disclosed, the question of negligence on the part of the person having charge of the infant-plaintiff, and of defendant’s negligence, were questions for the jury, and were fully and fairly submitted under a charge which carefully guarded every right of .the defendant. Under all the circumstances the verdict of $12,000, for the loss of plaintiff’s leg, and the suffering connected therewith, is not excessive in amount.</p>

The provisions of the order were as follows :— “ It is ordered that Louis Grosclaude and Octave D’Hainaut be, and they hereby are, substituted as defendants in this action in the place and stead of the Union Dime Savings Institution. “ It is further ordered that the defendant, the Union Dime Savings Institution, close said account numbered 210,718 in the name of Josephine Laurent and Francois Faivre, and open a new account as a deposit to the credit of this action, under its…

<p>On the settlement of the order to he entered on the decision in this case, reported in 58 N- T. Superior Court Reports, page 885.</p>

<p> Refusal to find a request to find a conclusion of law on the question of damages, when not error. The court was requested to find as a conclusion of law, that in computing the compensation to be made to the plaintiff for the taking of his easements the defendants were entitled to have taken into consideration the benefits resulting to plaintiff and peculiar, thereto; the court refused the request. Held, no error; the matter.requested was not a conclusion of law. but a mediate process in applying, the rule of measure of damages in ascertaining the damages. </p> <p> Finding of the loss in the rental valtie of the premises, effect of. Held, that such finding means the loss on the whole of the building; that all parts of the building had been considered; such parts as to which there had been a loss of rental value, and such parts as to which there had been ' an increase of rental value, and that taking all parts together there had been a loss; that benefits are not to be deducted, from the damages but to be considered in ascertaining whether there were damages. </p> <p> Shadows cast by a structure not immediately in front of the premises. Ik was argued by the appellants that the court erred in admitting testimony as to light being cut off by shadows cast by a station which was twenty-five feet south of plaintiff's premises, on the ground that the plaintiff had an easement only directly in front of his premises. Held, that the testimony was properly admitted, that appellants' position was inconsistent with the practical use of a street intending to benefit property upon it, as more light is thrown on a house from the sides than immediately in front. </p>

<p>Appeal from a judgment.</p>

<p>Appeal from an order.</p>

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

Appeal by defendants from an order of reference granted on the ground that the trial of the action would involve the taking of a long account.

<p>Appeal from a judgment dismissing the complaint oa the -merits entered upon the findings and decision of a; judge on a trial at special term before the court withouha jury.</p>

Plaintiff’s exceptions ordered to be heard in the first instance at general term, a verdiet having been rendered for defendant upon the direction of the court. Hatch & Warren, for plaintiff.

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

<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 judge’s minutes for a new trial.</p>

<p>Appeal from a judgment entered upon findings and conclusions of a judge on a trial at special term before the court without a jury.</p>

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