Volume 28 — Jones & Spencer's New York Superior Court Reports

Appeal by the plaintiff from a judgment in favor of defendants dismissing plaintiff’s complaint with costs, and also from an order denying plaintiff’s motion for a new trial.

<p> Action for damages for an injury sustained by plaintiff for which she claimed the defendant was liable. </p> <p>In March, 1882, the defendant obtained permission from the city of New York, to construct a bridge across the Harlem River for its trains, etc., on condition that defendant should keep and maintain a footway thereon with necessary and convenient stairways and approaches thereto from the street at either end. After the construction of said bridge, stairways and approaches, defendant took charge of and kept the platform approaches to the stairways. Plaintiff, in December, 1888, crossed over the bridge from north to south, and had just reached the foot of the west stairway to the street, when her foot caught in a projecting board in the platform approach, that caused her to fall with the result of severe injury. This projecting board in the platform had been left in this dangerous condition for thirty days previous to the accident. The facts relating to the accident, and the serious character of the injury to plaintiff, were not disputed, and the question of contributory negligence was fairly presented to the jury, who found in favor of plaintiff.</p> <p>Held, that defendant undertook to construct and maintain the bridge with suitable and necessary approaches thereto, and was bound to keep the same in complete order. Both principle and authority imposed upon the defendant the obligation of keeping the same in repair. The approaches were as necessary as the bridge itself. This defective condition of the platform approach rendered a part of the street unsafe for the ordinary purposes of travel, and constituted a nuisance. The responsibility for the repair and maintenance of the platform approach in a safe condition rested upon the defendant. There was no evidence tending to show that any other person or organization than the defendant was responsible for the condition of the plank at the time the plaintiff stumbled upon the same and fell. The instructions of the learned trial judge to the jury in this respect were correct and are sustained. The obligation of the defendant to the public in the premises was not kept, and any special damage arising from the failure of defendant in this respect, furnishes ground for a private action without regard to the question of negligence on the part of the defendant. The defendant was liable to the plaintiff in damages for the injury sustained by her, unless her own negligence contributed thereto. The question of contributory negligence was correctly submitted to the jury, and the conclusion in favor of plaintiff was fully justified by the evidence.</p>

<p> Usury, when defence of must be pleaded. </p> <p>The action is brought to recover the sum of $3,000 which the complaint alleged was loaned by the plaintiffs' testator on or about April 15, 1SS5, to the defendant to be repaid on or before May 1st following. The answer contained a general denial. On the trial the plaintiffs offered, and the court received, in evidence against the defendant’s objection a paper in the following words : “ New York, April 15th, 1885. Received from W. A. Wilchers, Esq., three thousand dollars for which I agree to pay him April 30, 1885, $3,250. Jno. W. Kohlsaat.” Against like objection the court admitted in evidence a letter from the defendant to plaintiffs’ testator, dated May 16, 1885, containing the following words : ‘' Herewith please find 23 Mexican State Bonds of the face value of $1,000 each, as collateral security until payment of the $3,250 for loan of $3,000, April 15, 1885.” Plaintiffs then rested and defendant moved to dismiss the complaint on the ground that no evidence had been shown within the pleadings and that the alleged agreement as shown by the note and letter was void for usury. The court denied the motion and subsequently directed a verdict in favor of the plaintiffs for three thousand dollars and interest.</p> <p>Held, that the defence of usury was unavailing to the defendant because not pleaded, while there was evidence from which the jury, if the issue had been made, might have found that defendant on obtaining the loan had further agreed to pay a usurious rate of interest, usury did not conclusively appear as matter of law from the evidence.</p> <p>Upon the defendant’s contention that the evidence offered did not sustain the transaction alleged in the complaint, but if anything an altogether different transaction, Meld that there was not a fatal variance between the proof and the allegations of the complaint.</p>

Appeal by plaintiff from an order dismissing the complaint and directing exceptions to be heard in the first instance at the general term. The facts are sufficiently stated in the head note.

Appeal by the defendants from an order denying their motions in each of said actions, to vacate and set aside the reports of the referee in each of said actions, and that the referee be directed to make reports therein which shall include all the facts found by him and the conclusions of law found thereon.

<p> Action to recover $1,000 deposited by the plaintiff with the commissioner of public works to accompany a bid or proposal for regulating and grading the first new avenue west of Eighth avenue. Statutory grounds for forfeiture of such a deposit, and notices required of an award of the contract to such depositor, etc., etc. </p> <p>Plaintiff claimed in his complaint that the $1,000 had been withheld from him on the ground that it had been forfeited to the defendant, but that it had never been forfeited because there had been no award of the contract to him, and no written notice of five days, as required by the statute, had been given to him that any award had been made to him. Defendant’s answer denied the allegations of the complaint that there had been no award and no notice, etc., and plaintiff moved at special term to strike out the defence contained in the answer as sham, and to overrule the answer as frivolous, and for judgment, etc. Upon the hearing and arguments of these motions at special term, an order was entered sustaining the motions, and judgment was entered for plaintiff.</p> <p>Held, that the five days’ written notice that the contract had been awarded to plaintiff was not given to him. The section of the statute creating the forfeiture is penal in its nature and must be strictly interpreted. Forfeitures are not favored and courts adhere to the precise words of the conditions to prevent a forfeiture. If the plaintiff’s bid met all legal requirements, it became the duty of defendant’s agents to formally award the contract to the plaintiff and give him the five days’ written notice of such award, and if the sureties of the plaintiff were not satisfactory to the comptroller, he should have notified the plaintiff and afforded him a reasonable opportunity to furnish others. The plaintiff not being legally notified of the award, and not notified of the rejection of his sureties and afforded an opportunity of furnishing others, has not been put in default, nor has the defendant by forfeiture or otherwise become the owner of the plaintiff’s deposit.</p>

Judgment for absolute divorce was entered in this action October 5, 1888, in favor of the respondent, upon the ground of adultery, awarding her $800, payable quarterly, as alimony, and also the custody of their two children, and. $250 each, payable quarterly, for their support, maintenance and education. These amounts, making $1300 annually, have been paid to the respondent.

<p> Practice—Motion for vacation of judgment and order for extra allowance because of their entry after the death'of one of the plaintiffs who was also the attorney of record for plaintiffs. </p> <p>The Verdict having been rendered before the death of the attorney of record, and one of the x>laintifis, Held, that the final judgment for costs, etc., could be entered nunc pro tunc, as of the day on which the verdict was rendered and the motion for an extra allowance made.</p>

<p>Security for costs, defendant's right to demand same under section 3208 of the Code, absolute unless defendant waives that right by laches, and if so waived it becomes discretionary with the court to grant the motion upon defendant's satisfactory explanation of his delay.</p> <p>Held, in the case at bar, that the defendant was not entitled to the security demanded.</p>

<p> Dismissal of complaint for want of prosecution in an action for a separation. </p> <p>This action, was begun March 26, 1891. Defendant was arrested on that day on proofs that he was about to leave the State, and was held to bail and subsequently surrendered by his bondsmen, to the custody of the sheriff, on the 29th day of April, 1891, and since that time has been in Ludlow street jail. The answer was served April IS, 1891, and after several] extensions of time to reply, a reply was served July 2, 1891. The cause was not noticed for trial for the October or November terms, and younger issues have been tried in their regular order on the calendar before this motion to dismiss was made. The plaintiff claimed that defendant was in contempt for non-payment of alimony, ordered by the court, and that she has not the means to prosecute the action, etc., and defendant being in contempt, etc., is not in a position to move to dismiss the complaint.</p> <p>Held, that defendant is in custody by the surrender of his bondsman and is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt, and the motion to dismiss presented the usual questions on such a motion, with the circumstance in favor of the moving party, that he has been in prison seven months, with a strong probability that he must remain there unless relieved by the trial and determination of this action. It was discretionary with the court to grant or refuse this motion; and an appellate tribunal will not interfere except in a case where the discretion has been abused or improperly exercised, and, in the case at bar, it was not so abused or exercised.</p>

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

<p>Appeal from interlocutory judgment of the special term overruling a demurrer to the complaint.</p>

<p>Appeal from a judgment entered in favor of plaintiff against the defendant for damages and costs, and adjudging that the plaintiff was and is entitled to the injunction granted in this action. The facts in the case fully appear in the opinion of the judge at equity term, as follows :</p>

The material facts in the case appearing in the opinion of the judge at special term, and the same having been referred to hy the judges of the general term in the opinion of the court, the same is set forth, as follows:

<p>Appeal from judgment entered in favor of plaintiff upon the decision of a judge at special term.</p>

<p> Execution against the person, order .to show cause why the same should not be vacated when it fails to specify the irregularity complained of, but such irregularity may be waived by the complainant, as in this case. </p> <p>The plaintiff waived the right to insist upon the preliminary objection, that she made upon the return of the order to show cause, when the court directed the defendant’s attorney to furnish to plaintiff’s attorney a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave the plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he desired; and within the time plaintiff’s attorney did submit an affidavit and brief.</p> <p>Held, that, under these circumstances, a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.</p> <p>As to the merits, it appeared on the hearing of the motion, that the case was one of great hardship to the defendant; the negligent act complained of was the act of one Sharp, a co-partner of defendant, in the business of dentistry, who was not served with the summons in the action, the defendant Stewart alone contesting plaintiff’s claim. The defendant having failed to issue an execution against the person of defendant Stewart within ten days after the return of execution against property, as required by § 572 of the Code (in fact, until more than 26 days had elapsed), the comt was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown why the application should not be granted. Upon this point the case presented a question of fact upon which both parties submitted affidavits, which were, to some extent, conflicting.</p> <p>Held, that, upon the whole case, as presented, it cannot be held that the learned judge, at special term, committed a legal error in the determination of the fact against the plaintiff.</p>

<p> Negligence, res gestae, declarations of a servant which are a part of the same, are admissible. Time when, and place of, such declarations, discussed. </p> <p>There was no error in the admission of evidence, and the only complaint made as to the exclusion of evidence, relates to the exclusion of a question put by plaintiff’s counsel, to a witness called by the plaintiff, as to what the driver of defendant’s ice cart said to the witness in regard to the wheel running over the plaintiff. The period of time to which the question related was after the accident had happened. The driver’s act had then been entirely finished.</p> <p>Held, that any statement then made by defendant’s driver must necessarily have been only an admission of the fact in regard to an occurrence then past, and, as such, it was clearly inadmissible against the defendant. No declaration is part of the res gestae, if made after the act has been completed. It matters not whether only a minute or an hour or a day has elapsed after the occurrence had taken place. This testimony was offered as original evidence against the defendant, and, as such, was inadmissible, as ruled by the court. This being so, the court properly refused to allow plaintiff’s counsel to follow up his exception to the refusal by a general offer of what the counsel proposed to show.</p>

Appeal by defendant from a judgment entered upon a verdict in favor of plaintiff and from an order denying a motion for a new trial. The facts are sufficiently stated in the head note.

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

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

<p> Assault—Request to charge, when too broad in view of surrounding circumstances. </p> <p>In an action to recover damages for assault it was shown on the trial that defendant called on plaintiff at his office for the purpose of adjusting an . account owed hyplaintiff to defendant’s firm. A dispute arose between them and plaintiff ordered defendant out of his office. Defendant started to leave, when, as he testified, plaintiff followed and struck or pushed him. Defendant then returned and committed the acts claimed to amount to an assault. The jury' rendered a verdict for defendant. Plaintiff’s motion for a new trial was denied. He appealed from the judgment entered, but omitted in his notice of appeal to specify the order denying the motion for a new trial. Held, that no questions of fact on the trial were open for review.</p> <p>The trial judge charged : “ If the plaintiff put his hands upon the defendant the defendant had a right to resist, and to use such force as would prevent the plaintiff from inflicting injury upon him.” Held, no error.</p> <p>Upon plaintiff’s request the judge refused to charge, “as matter of law, that the premises being the premises of the plaintiff, when he ordered the defendant to leave, it was his duty to do so, and that upon his failure to do so the plaintiff had a right to use the necessary force to eject him, and that in using such necessary force, if he did not use any unnecessary violence, it would give the defendant no right to assault him.” The judge also refused to charge at plaintiff’s request, “ as matter of law, that after the defendant was ordered by the plaintiff to leave the premises and had left through the private door he had no right to return.” E.eld, no error, that in view of the testimony given hy defendant the requests were too broad.</p>

Cross appeals from judgment entered in favor of plaintiff upon the decision of a judge at special term. The opinion of the judge at special term, referred to and approved in the opinion of the court on the appeal, was as follows:

<p> Action to recover damages for personal injuries received by plaintiff, and caused by the negligence of defendants. </p> <p>In this case, the explanations given by the defendants, in their proofs on the defence, were so full that the burden of proof was cast upon the plaintiff to establish the fact or facts that, notwithstanding the explanations given,, there was a specific act of omission or commission for which defendants were responsible and caused the injury.</p> <p>Held, that the plaintiff failed to sustain this burden and the true cause of plaintiff’s injuries, and whether or not the defendants or others were responsible for that cause, were left in uncertainty and doubt, and the complaint was properly dismissed.</p>

Lombard, Ayres & Co., a corporation, was duly incorporated under the laws of the state of New York on the 4th day of March, 1880, for the purpose of “ distilling and refining petroleum and incidentally thereto to buy, sell, manufacture, hire, let, store and otherwise deal in all materials, apparatus and products necessary or useful therefor or resulting therefrom or within the scope thereof, as such business is ordinarily conducted.” The defendants, Josiah Lombard, Marshall…

<p> Partnership and partners, general and special; the relations and character of each to creditors and to each other—Interference. </p> <p>This action was brought upon a promissory note made by Nathan Klein and indorsed by the firm of A. Hoexter & Co. The firm of A. Hoexter & Co. was a “ limited partnership," formed under the laws of this state, and consisted of the defendants Augustus Hoexter and Leo W. Hoexter, as general partners, and. the respondent I-Ienry W. Strauss, as special partner. The plaintiff seeks to hold the respondent liable as a general partner for the following reasons : 1st. Because Leo W. Hoexter was a minor; 2nd. Because the affidavit on the formation of the special partnership falsely stated that the respondent contributed $50,000, in cash; 3d. That respondent had interfered with the business of the firm in violation of the statute by commencing an action in the Court of Common Pleas and had himself appointed receiver of the firm; 4th. That by such proceedings he had dissolved the firm prior to the expiration of the term set forth in the certificate of its formation, and 5th. That the respondent did not allege in his answer nor show by proof that the partnership was dissolved by the act of the parties prior to the time limited, and that the $50,000 capital, alleged to have been contributed by him, had been used or exhausted in the business.</p> <p>The court held, on these points, as follows: The first is untenable. The policy of the law is to encoiu-age and protect infants; hence, they are capable of entering into a partnership, since it cannot be universally affirmed that it may not be for their benefit. The partnership contract of an infant is not void, but voidable only, and the defence of infancy is a personal privilege on the part of the infant only, and no one but the infant can take advantage thereof. The partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement. There is nothing in the law relating to limited partnerships prohibiting or preventing infants from becoming a general partner therein, nor relieving a special partner from liability for their contracts in the same.</p> <p>The second point is without proof to support it.</p> <p>The third point is without merit. The action brought in the Common Pleas, was brought in interest of the creditors and for the preservation of the trust funds of the partnership, and was not such an interference by the special partner as makes him liable as a general partner.</p> <p>The fourth point is without force, because if the partnership was dissolved prior to the term fixed it was dissolved by reason of the insolvency of the firm and by operation of law, and not by the voluntary acts of its members.</p> <p>As to the last point, whether the $50,000 of special capital was exhausted or not, was fully answered by the records offered in evidence by the plaintiff that established the fact thfit the obligations against the firm were more than sufficient to exhaust the entire capital, general as well as special.</p> <p>The onus probande, was upon the plaintiff to prove such irregularities as made the respondent liable as a general partner, and failing in this, the trial judge properly dismissed the complaint as to respondent. If the onus of proving the special partnership had fallen upon the respondent, he would have been required to produce the best evidence of the same, namely, the original papers, etc., but when, as in this case, the plaintiff, without objection, proves a special partnership without the formality of the production of the original papers, the evidence with all the presumptions following it, must be acted upon as if the best evidence had been produced.</p> <p>Interference by a special partner which makes him liable as a general partner, must be something more than mere observation or such incidental supervision and advice which a person, having capital invested in a firm, would naturally give to an enterprise in which the greater part of his fortune may be invested. Such interference means active participation and domination in and over the affairs of the firm. The interference which makes a special partner liable as a general partner is not a legal but an illegal interference, the one being fully authorized by law, the other not. In the present case there was no interference contrary to the provisions of the act, but only such interference, and in such manner, and to the extent that is expressly authorized thereby:</p>

This is an appeal from a judgment entered upon a decision of Judge Dugro, rendered after a trial before him without a jury. The action was brought to recover a penalty of fifty dollars incurred by the defendant under the provisions of the act entitled, “ An Act to prevent extortion by railroad companies,” Chap. 185 of the Laws of 1857, as amended by Chap. 415 of the Laws of 1886, together with the excess of fare charged, amounting to fourteen cents.

Statement of the Case by the Court. On January 19, 1885, Frederick A. Baldwin and two others recovered a judgment against Ira E. Doying and Thomas H. Beekman, impleaded with Willet Bronson for §1,978.36. On June 5, 1885, the judgment passed by assignment to Wm. A. Davis. The judgment was affirmed upon appeal to the general term, and judgment of affirmance entered March 4, 1886, for §96.94 costs. On June 6, 1887, the two judgments were assigned by Davis to Alvin Burt.

<p>Appeal from a judgment entered on the dismissal of the plaintiff’s complaint at trial term.</p>

<p> Counterclaim,—Assignment, written or oral, and in the latter case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in further anee of such intent. </p> <p>In this case the counterclaim and its assignment were both put in issue by the reply. The referee before whom the case was tried, refused to find, as matter of fact, that any assignment had been made as alleged in the answer. This was tantamount to an affirmative finding that no transfer was ever made in fact, and if there was no assignment the claim or demand could hot be used or considered as a counterclaim.</p> <p>In this case, whether the transaction be called a gift, sale, assignment or transfer, it is not evidenced by any symbolical or constructive delivery of anything, nor by any unequivocal act of the parties. The alleged assignee merely said to the alleged assignor “ that he would transfer the indebtedness over,” the amount was not stated, although the claim as one against the plaintiff was mentioned, and there was not even a charging up of the account sought to be transferred in any way. Held, that the evidence under any interpretation does not establish an assignment sufficient to pass the title. The element of “ intent ” runs all through the cases, and this is generally a question of fact, and the referee has decided it adversely to the defendant, and the judgment appealed from must be affirmed.</p>

<p> Certiorari to review the action of the Board of Police Commissioners in removing the relator from the police force of the city of New Torlc. </p> <p>The relator was tried by the police board on charges preferred to said board that the relator was so much under the influence of liquor as to be unlit for duty at 1.33 p. m. January 1, 1891, at the expiration.of his tour of patrol'duty. The facts in the case appear fully from the points of counsel and the opinion of the court.</p> <p>Held, that the testimony in support of the charges, was sufficient to sustain them were it not for the explanation offered by the relator, which seems to be fully sustained by the evidence on his part, and takes the sting out of the charge and shows that the conduct complained of was not a breach of discipline but the result of an accident. The rule undoubtedly is, that the commissioners are the statutory judges, and when they find on conflicting evidence their judgment should not be set aside except in a case where a verdict of a jury would, under like circumstances, call for the exercise of the supervisory power of the court to correct error and injustice. There is no conflict of evidence here that makes the finding of the commissioners so sacred that it should not be the subject of review. If the facts are as sworn to by the relator and the two citizens, that the relator’s horse slipped and he was thrown to the ground and rendered unconscious, and the citizens gave him whiskey which by the subsequent heat of the radiators in the station-house put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached witnesses and not even contradicted, and their story was highly probable. The commissioners, while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offense charged. Eor the failure of the commissioners to give proper effect to explanations offered, their adjudication must be reversed and the relator restored.</p>

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

<p> Action to recover damages for the loss of service of a daughter of plaintiff, who was debauched by the defendant, and thereby the plaintiff was deprived of her assistance, society, comfort and service. </p> <p>The jury found all the facts in favor of the plaintiff and returned a verdict in his favor, assessing the damages at $3,500. The appellant claims that the damages so found were excessive and should be reduced. Held, that for injuries of this character the plaintiff was entitled to recover exemplary damages. This is a universal rule. In these cases the loss of service is merely nominal although the damages that may be recovered are large and are left much to the discretion of the jury, who may take into consideration all that the parent can feel from the nature of the loss. They may look upon the parent as losing the comfort as well as the service of the daughter, and the jury do right in giving liberal damages. In this case the verdict was not excessive, and the jury were warranted in finding as they did.</p>

<p>Husband and wife. Action by husband to recover for his pecuniary loss, and for the loss of the services and comfort of the society of his wife, caused by the wrongful act of the defendant.</p> <p>On Christmas night, 1888, the plaintiff, his wife and two young nieces, hoarded a train of defendant in the lower part of the city, intending to go to plaintiff’s home, near Seventy-second street and Ninth avenue. On reaching the railway station at the latter place they started to leave the car. The plaintiff started first, and the two little girls followed next, and Mrs. Allen was last in the order. Before Mrs. Allen could leave the car and get off the train, and as she stood in the open door of the car platform, the train started. She was told by the guard to get off. She said, “ How can I when the train is in motion ? ” The guard then said, “ Get off, I say,” and putting his hand upon her back, pushed her. Mrs. Allen was lame, having a stiff knee, and when she was pushed she fell off the platform of the car upon the platform of the station, and the train, which was full of passengers, passed on, leaving Mrs. Allen with the plaintiff and the two little girls on the station platform. The result of the fall was a fracture of the scapula of the left shoulder, which never united, and she was permanently disabled in her left arm and shoulder. The injury is claimed to be incurable, and she is compelled to wear an iron frame about her body to support the shoulder, and she can make no exertion without pain; and it is also claimed that some of the muscles were permanently detached from the shoulder. The jury found a verdict in favor of the plaintiff for three thousand dollars, and the defendant claims that this amount is excessive.</p> <p>Jleld, that the verdict of the jury settles the facts as stated, and the proofs were sufficient to sustain the verdict. In actions of this kind the loss of the society and companionship of the wife is an element of damage in addition to the loss of service. The claim comprehends and includes the loss which will continue during her life. In view of the facts and circumstances, the recovery was not excessive. The various exceptions taken during the trial to the reception and refusal of evidence, to the judge’s charges and his refusals to charge as requested, are without merit.</p>

<p>Ddmages to abutting property caused by trespass of elevated railroad.— Judge’s charge—Particular use to which premises are actually put, as not interfered with by operation of road, no answer to plaintiff’s right to have unrestricted use of same.</p> <p>In an action to recover damages to usable value of plaintiff’s premises alleged to be due to maintenance and operation of the defendants’ elevated railroad in the street in front thereof, the trial judge charged the jury : “In deciding the question of damage to rental value during said period, you should consider it with reference to the purpose for which said premises were occupied and used during said period, and give due weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut-glass goods, and that such goods are exhibited to better advantage by artificial light than by ordinary light.” The plaintiff only excepted to this portion of the charge. The jury rendered a verdict of six cents in favor of the plaintiff. Held, that the portion of the charge excepted to was inaccurate because it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied. The plaintiff was entitled to the use of his property for any purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.</p> <p>Defendant consented to withdraw the portion of .the charge excepted to, but no direction was given to the jury to disregard it, nor anything said by the court from which the jury might intelligently infer that it should be disregarded. Held, that the error was not cured; that the fact that the jury rendered a verdict of six cents for the plaintiff, while the proof indicated that the loss was of a more substantial character, showed that the erroneous charge left its impression on the mind of the jury.</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>The action was against the defendant, as the executor of Barbara Ulrich, to recover for the work, labor and services of the plaintiff and his wife, in taking care of and nursing his mother, Barbara Ulrich, in her old age, from March, 1885, down to the time of her death, which occurred October 1, 1889. The answer denied the employment or the rendition of services.</p> <p>The court charged the jury, that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict, otherwise not.</p> <p>The jury found for the defendant, and from the judgment entered on their verdict and the order denying a motion for a new trial, the plaintiff appeals.</p>

Appeal by defendant from a judgment of the special. term, requiring said defendant to specifically perform a contract for the purchase of certain real estate, to accept the deed, and pay $21,400 the balance of the purchase money.

Motion by defendant to dismiss the plaintiff’s appeal. The action was brought by plaintiffs as manufacturers in Switzerland against the defendants, their commission agents in this city, to recover $18,958.40. The defendants set up various defences and counterclaims. The action was referred and the referee awarded the plaintiffs $10,130.45, with interest, aggregating $12,-276.29.

<p>Appeal from an order denying a motion of defendant to set aside a stipulation, and for leave to amend the answer.</p>

<p> Attachment, warrant of, vacation of same on motion. </p> <p>The plaintiff, by whom the attachment against the defendant -was obtained, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him, and in it he swears that the sum claimed is due “ over and above all counter-claims known to him." The defendant claims that the affidavit is insufficient because the plaintiff being only an assignee should have added to the above the words “ or to his assignors,” and that he should also have shown the sources from which he derived his knowledge, that there were no counter-claims.</p> <p>Held, that the language used by the plaintiff is the exact phraseology required by section 636 of the Code in that regard. The rule is not the same where the affidavit is made by an agent or attorney of a plaintiff as it is when made by the assignee of a claim who is himself the plaintiff. In the latter case the mere statement required by section 636 of the Codo is sufficient. This conclusion is logical and just, because the law will presume that the owner of the claim, having made himself liable for costs and given a bond, has knowledge of what he states, stands upon the same footing as his assignor would have stood had he not assigned the claim, but had become the plaintiff in an action to enforce it. If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, -whether the plaintiff is the assignee or the original owner of the claim, unless it affirmatively appears that he could not have had any personal knowledge of the matter.</p>

<p>Attachment, motion to vacate, etc.</p> <p>This was an appeal from an order denying a motion to vacate an attachment made in the same action reported previously (antep. 269). The motion was made subsequently to the other and before another judge, and upon different grounds, and may be named motion No 2. The facts and points in the case appear in full from the points of the counsel and the opinion of the court.</p> <p>Held, that the defendant could not have set up a counter-claim in this action even if the assignors were the plaintiffs instead of their assignee, and defendant having no counter-claim against plaintiff’s assignors, can have none against the plaintiff, the assignee of the claim.</p>

<p>Appeal from judgment dismissing the complaint, on the ground that said complaint does not state facts sufficient to constitute a cause of action.</p>

<p> Duress and compulsion—Contract, action to recover money paid under the same. </p> <p>This action was brought to recover from the defendants a sum of money alleged to have been paid to them by plaintiffs under duress and compulsion. The action was tried before a referee, who dismissed the complaint, holding that the proofs failed to show that the money was paid under duress and compulsion. The facts in this case, and the points of law raised by counsel, are important, yet too voluminous for a report of the same, beyond the limits of the opinion of the referee</p>

The facts and points in this case fully appear in the-opinion of the judge at special term, which was as follows, and upon which the judgment was affirmed on appeal:

<p>Appeal from an order of the special term sustaining an injunction.</p> <p>The facts and points in the case fully appear in the opinion of the judge at special term, which was as follows:—</p>

<p>Appeal from a judgment entered upon the special verdict of a jury and the findings and decision of the trial judge at a trial term. The facts and points in the case appear fully in the opinion of the judge at trial term, which was as follows :</p>

A verdict for plaintiff was directed at the trial term5 and the exceptions were ordered to be heard in the first instance at the general term. The character of the action is set forth in the head note.

<p>Case agreed upon in a controversy and submitted for decision to the general term pursuant to section 1279 of the Code and the sections following thereto.</p> <p>The plaintiff and defendant, on June 18, 1891, entered into contract by which the plaintiff agreed to sell and the defendant agreed to buy a piece or lot of land, described in the contract of sale, subject to a mortgage for $4,000 in favor of one Julia M. Scarlett. The premises were to be conveyed by a good title, free from any lien or encumbrance except said mortgage. A deed was duly tendered but refused by defendant, on the ground that there was a lien or encumbrance on the .property besides the Scarlett mortgage arising out of the facts set forth in the case submitted, and the plaintiff claims that no lien or encumbrance exists thereby. Whether or not there is such a lien or encumbrance is the question in difference between the parties submitted to the court.</p> <p>The following additional facts and questions appear in the submitted ease. On or about October 18, 1890, the department of public parks in the city of New York, duly filed a map of a proposed avenue or street in the twenty-third ward of the city of New York, pursuant to chapter 681 of the laws of 1886, in the office of the said department of public parks, in the office of the register of the city and county of New York, and in the office of the secretary of state, and each of said maps remains of record in the office where the same was filed. Said maps were made out, filed, executed, acknowledged, certified, in all respects as required by chapter 681, Laws of 1886, section 672 of the Consolidation Act, and the amendment thereto, chapter 530, Laws of 1885, and all other acts relating to the department of public parks and its powers in regard to the streets in the 23rd and 24th wards, which are hereby made a part of this case. All the requirements of said acts now in force were in all respects complied with by the department of public parks in filing the map aforesaid. On the said map the department of public parks laid out a street or avenue of the first-class which covers the whole of plaintiff’s lot.</p> <p>Section 673 of the Consolidation Act, and all other acts which provide for the opening of streets or avenues in the 23rd and 24th wards and which confer powers in regard to streets or avenues in the 23rd and 24th wards on the department of public parks, or on the commissioner of street improvements of the twenty-third and twenty-fourth wards, and particularly Consolidation Act, § 671 as amended by chapter 487, Laws of 1887; § 672, as amended by chapter 530, Laws of 1885, § 674; sections 677 and 958, and chapter 545, Laws of 1890, are hereby made a part of this case. By sections 677 and 958 of the Consolidation Act, it was provided, among other things, that when proceedings were taken to open any of the streets laid down on maps as provided in the laws already referred to “ No compensation shall be allowed for any buildings, erection or construction which at any time subsequent to the filing of the maps, plans or profiles mentioned in section 672 of this act, may be built, erected or placed in part or in whole upon or through any street, avenue, road, public square or place exhibited upon such maps, plans or profiles.”</p> <p>No proceedings have ever been taken to open the street or avenue laid out as aforesaid across the plaintiff’s lot, or to acquire the plaintiff’s land by condemnation proceedings, no building is erected thereon, and the same is a vacant lot which derives almost its entire value from the possibility of being used for building purposes. If the lot cannot now be built upon without the house being destroyed without compensation in the event of the street being opened as prescribed by the statutes above set forth, the lot is not worth what defendant agreed to pay, whereas if it can be used for building purposes it is worth at least $5,000.</p> <p>Upon this state of facts, maps having been filed for streets or avenues of the first class covering the entire lot and the requirements of the law having been in all respects complied with, the defendant claims that under the statutes relating to the subject and particularly sections Gif and 95S of the Consolidation Act, the filing of the said maps creates a lien or encumbrance upon the said lot, in that it prohibits the erection of any building thereon under penalty of having no compensation made for such building, if the city should thereafter acquire the property by condemnaíio 1 proceedings; and the plaintiff claims that the said statutes so far as they prohibit the erection of any building thereon under penalty of having no compensation made for such building, if the city acquires the land by condemnation proceedings, are unconstitutional and void because (1) they deprive the plaintiff of his property and liberty without due process of law, in violation of the constitutions of the state of New York and the United States; (2^ they take the plaintiff’s private property for public use without just compensation, in violation of the constitution of the state of New York; and (3) they deprive the plaintiff of the equal protection of the laws, in violation of the constitution of the United States.</p> <p>Upon these facts the questions submitted to the court are: 1st. Are the provisions of the said statutes and particularly sections G77 and 958 of the Consolidation Act, that if any building is erected on a street laid down on a map filed by the department of public parks, no compensation shall be awarded for such building if the land on which it is erected is subsequently acquired by the city for the street or avenue laid out upon it in condemnation proceedings, unconstitutional and void ? 2nd. Is there a lien or encumbrance on the plaintiff’s lot created by said statutes ?</p> <p>If the first question is answered in the affirmative and the second in the negative, the judgment is to be rendered in favor of the plaintiff and against the defendant, that the defendant take the title tendered by said deed of said lot and pay the sum of §1,000, without costs.</p> <p>If the first question is answered in the negative, and the second in the affirmative, judgment is to be rendered in favor of the defendant, without costs.</p> <p>Held, that the statutes under which the map of the contemplated street opening was filed are constitutional. The statutes in question do not attempt to regulate private property, and do not interfere with the use thereof. The filing of the map is merely notice, to whom it may concern, of an intention to open a street at a place indicated. It does not divest the owner of his title to the property, nor in any way encumber or impair it until the proceedings pirovided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken and the streets laid down by the map may never be opened for public use. The title is in no wise impaired, for the owner of the property may use it as he pleases for any legal purpose to which it may be devoted. If, however (after the notice arising from the filing of the map), he voluntarily changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse him for the expenditures so made. The constructive notice affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern, and is not a fact that the owner is bound to communicate to a purchaser, nor is its suppression fraudulent. The filing of the map is in no manner nor to any extent, a defect of title, or a cloud on the title, nor an encumbrance. It is not a claim antagonistic to the owner, but in harmony with and in recognition of his title. The plaintiff had good title to the property he contracted to convey. There is no lien or incumbrance on it created by the statutes, and the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of §1,000, with costs, according to the terms of the submission.</p>

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

<p>Appeal from a judgment rendered at an equity term of the court.</p>

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

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

<p>Appeal from a judgment entered February 11, 1891, upon a report of a referee, which awards plaintiff $1,457.00 past damages, sustained by him on account of the maintenance and operation of defendants’ elevated railroad in front of his premises, No. 926, Sixth avenue, besides $280.18, costs of the action. The judgment further enjoins the defendants from maintaining or using their elevated railroad structure or operating their railroad thereon, in front of said premises, No. 926, Sixth avenue, except on the payment to plaintiff of $3,150.00, as the price of so much of his property in the street as has been taken by defendants.</p> <p>This action covered two separate parcels, viz., Nos. 624 and 926 Sixth avenue. The learned referee apportioned the damages as follow:</p> <p>No. 624 Sixth avenue :</p> <p>Rental damage none.</p> <p>Value easements . | 800.</p> <p>No. 926 Sixth avenue :</p> <p>Rental damages . 1,457.</p> <p>Value easements . 2,350.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>The opinion of the referee is as follows:—</p>

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

<p> Action by plaintiff while in the employ of the company-clefendant, for damages resulting from injuries received from being bitten and JcicJced by a vicious horse, owned by the company- </p> <p>The first position held by defendant is that there was no evidence that the horse was dangerous and vicious, or accustomed to attack or hurt those handling and caring for him. Held, that the'plaintiff was entitled to the judgment of the jury on this point.</p> <p>It was further claimed by defendant that if the horse was vicious there was no evidence that the defendant knew it. The evidence upon this point related to the knowledge and action of one Totten and one McQuade, who were claimed to be the agents of defendant and in such relation to and service with the defendant as made their knowledge the knowledge of the defendant. Held, that this was a question of fact proper for the jury, and that, under the circumstances proved, Totten’s knowledge was the knowledge of the defendant, as was also the knowledge of McQuade; that they were both agents of defendant, and the defendant was bound by their knowledge. Held also, that the court below correctly refused to charge the jury, that even if the men employed by defendant in the stable to keep and take care of the horses knew of the horse’s viciousness, yet that fact did not charge the defendant with notice or knowledge.</p> <p>There was an objection raised to the court instructing the jury to find whether or not defendant owed a duty to plaintiff, to instruct him with respect to the character of the horse in question. Held, there was such a duty if the horse was dangerous and known to be so by McQuade, who put the plaintiff to work upon the horse, as the jury might find. There was no error in this instruction. The employment of plaintiff by defendant was to attend to horses not vicious or dangerous. If the plaintiff was ordered to attend a horse that was dangerous or vicious, it was the duty of the employer to warn his servant of the character of the horse and of the risk he was about to take if that character was known to the employer.</p> <p>Held, that the court correctly refused to charge that the plaintiff, in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar to that complained of, and that the defendant knew it. It was sufficient to create liability on this point, that what defendant knew previously of the character of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.</p>

<p> Mechanic's lien, discharged by the filing of bond whichtook the place of the land as security, etc—Building contract, substantial performance. </p> <p>The appellant claims that the lien was invalid, and seems to rely upon one of the findings of fact to the effect that the work covered by the contract was not fully completed at the time of the trial. Meld, that a substantial completion was not referred to in this finding is evidenced by the fourth finding which states, as follows: “ that before the 14th day of July, 1890, plaintiff had substantially completed the plastering work required to be done.”</p> <p>The case shows that the trial judge found that plaintiff had substantially performed the contract and the work for which he filed the lien, and that allowance was made for the lack of full performance. Meld, that where there has been a substantial compliance with the terms of a building contract, the contractor is entitled to recover the full amount of his contract less such sums as may be required for remedying the lack of full performance and completing the contract fully.</p>

<p> Elevated railroads—Damages caused by future operation of trains a proper element of compensation—Release by mortgagee. </p> <p>In fixing the amount which the defendant elevated railroad companies may pay to obviate the injunction granted with reference to plaintiff’s abutting premises, it is proper to include as the subjects to be compensated for, the future passage of trains, with the dust, cinders, steam, smoke or odors incidental to such operation upon the permanent elevated structure. Sperb v. The Metropolitan Elevated Railway Company, 16 N. Y. Supp., 392, disapproved.</p> <p>The judgment should provide for a release to the defendants of the easements taken for the maintenance and operation of the elevated railroad, by the owner of the mortgage found to be an existing lien upon the premises in suit.</p>

Appeal by defendants from a judgment entered upon the report of a referee awarding an injunction, to be obviated upon payment of the sum fixed as compensation for easements taken, and incidental damages.

<p>Motion by defendants for a new trial upon exceptions directed to be heard in the first instance at general term.</p>

<p> Ejectment—Premises sought to be recovered must be intelligently described in the complaint. </p> <p>The sole question argued or decided in the court below, relates to the sufficiency of the description of the premises set forth in the complaint, as follows: “ commencing at a point in the easterly line of said premises three and one-eiglith inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet west'erly from the easterly line thereof.”</p> <p>Held, that this description is that of a straight line and nothing else. As it is impossible to deliver the possession of a straight line the complaint clearly does not set forth facts sufficient to constitute a cause of action, and, therefore, the demurrer must he sustained.</p>

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

<p> The rights of property in laioful owners thereof—Felonious conversion of personal property. </p> <p>The right of property is absolute and inherent in the owner, and his right of dominion in and over it entitles him to its use and possession at all times and in all places.</p> <p>A bona fide purchaser of stolen goods for value, acting in complete ignorance that he was dealing in stolen goods, acquires no right of property by such purchase. When a chattel once passes feloniously from the possession of the lawful owner, no subsequent holder of the same can acquire any title thereto except by the consent of its lawful owner.</p> <p>Conversion is an unauthorized act which deprives a person of his property permanently or for an indefinite time. Wrongful intent is not an essential element in a conversion. It is conversion if the rightful owner has been deprived of the use and possession of his property by some unauthorized act of another in assuming dominion or control over it. The question of demand does not arise in this case. A demand of the possession of property and a refusal to deliver, are necessary to put a party in the wrong and render him guilty of conversion only in a case where the defendant has exercised no act of ownership over the property and has otherwise acted and proceeded in good faith. If the property in question has little or no marketable value, the actual value to the owner is the just rule. The jury may consider the cost of replacing the property. In all cases of conversion, except where punitive damages are allowable, the true rule to be adopted rests upon the fundamental theory which affords the plaintiff a just indemnity for the loss he has sustained, the actual value to the plaintiffs for use in their business is the proper rule of damages.</p>

<p> Lien against moneys due a contractor, from the city of New York, filed and assigned to plaintiff and sought to be foreclosed by plaintiff. </p> <p>Held, that as to most of the lienors there is a fundamental consideration which disposes of the lien as to them. It was found below that the notices of lien filed by them were valid under section 1825 of chapter 410 of the Laws of 1882. That section requires that the notice shall state the amount of the claim and from whom due, whereas the notices stated in legal effect that the amount claimed was due by Rogers, the contractor with the city, under a contract made by Rogers through his agent, one Fortunato. The referee found that this was not in accordance with the facts; that Fortunato was not the agent of Rogers, and the contracts were made with Fortunato, who was a sub-contractor of Rogers. The notices, therefore, were not within the statute, and were not the foundations of liens, and the judgment rendered in favor of the plaintiff and defendants Smith & Brandell, and Curtis & Blaisdell, should be reversed and a new trial ordered. The notice of lien, filed by defendants Ritch was objected to on the ground that the contract made with Rogers was in reality made with a firm to which defendants succeeded. This matter was not open to litigation, for the appellants in their answer affirmatively allege that they entered into a contract with defendants Ritch to furnish stone as alleged in their complaint. This objection to the notice should not be sustained. The facts connected with the claim-of the defendants Ritch cannot be examined because it does not appearthat all the evidence is in the case that was settled, and the judgment as to the respondents Ritch should be affirmed.</p>

Appeal by defendants from a judgment entered upon decision of judge after trial at special term. The action was to recover an injunction and incidental damages by reason of defendants’ elevated railroad in Third avenue in the city of New York, with regard to abutting property owned by plaintiff. The trial judge awarded an injunction, fixed a sum as compensation which defendants might pay to plaintiff to obviate the same, and directed judgment for rental damages.

<p>This action was commenced on October 2, 1891.</p> <p>On October 16, 1891, defendant appeared, demanded complaint, and on the same day obtained order requiring plaintiff to give security for costs by paying into court two hundred and fifty dollars, or by filing an undertaking, or show cause October 23,1891, why he should not give security with an ad interim stay of proceedings.</p> <p>The plaintiff then gave notice of motion for leave to sue as a poor person.</p> <p>These applications were heard together on November 30, and on December 3 the justice hearing the motions denied the plaintiff’s motion for leave to sue as a poor person, and also denied the defendant’s motion for security for costs.</p> <p>The plaintiff did not appeal, but the defendant brings this appeal from the order denying its motion.</p>

<p> Judgment taken for want of answer—Motion to open the default—Terms. </p> <p>In this case the defendant asked the court to open this default and permit him to plead partial payment and usury, which the court denied unless the defendant gave a bond for the full amount of the note, with two sureties justifying in $5,000, which condition defendant claims to be onerous and deprives him of Ms defence, as he is unable to give such a bond. Held, that the affidavits in this case were too vague and uncertain to authorize the court to hold that usury was shown to have existed under the facts shown, especially when the form of the statements on this subject intimates that there are other facts not stated wMch would be relevant and should be considered before holding that there was a defence of usury.</p> <p>The' defendant also claimed that he had a defence of payment or partial payment by the giving of a note for about half of the amount of the note in action. If this note was given, it would not have been a payment. The defendant’s affidavit left it doubtful as to whether the note was ever given to plaintiff, while the affidavits of the plaintiff are to the effect that the note was not given. The court would have been justified in denying the motion absolutely.</p>

Appeal by plaintiff from an order striking out bis complaint and from the judgment entered thereon. Appeal by defendant from an order sustaining plaintiff’s demurrer to part of the answer and from the judgment entered therein. The facts and points in the. case in the first appeal fully appear in the opinion of the judge at special term, which is as follows :—

<p> Usury must be proved by clear and positive proof, it is never presumed. </p> <p>The note, that is the subject of this action, was executed and delivered upon the surrender of a note given for a similar amount, and bearing date of January 1, 1884. The latter note was given for a note of same amount, bearing date of January 1, 1883. The evidence does not connect the last note with any preceding loan or note. On January 1, 1881, ’ a note of §100,000, payable in eighteen months from date, was delivered by defendant to plaintiffs. The evidence fails to connect this last note with the note in suit sufficiently to warrant any consideration for it or for any loans which are alleged to have preceded the same.</p> <p>Held, that any usury which is alleged to have tainted the loans which preceded the note last mentioned, is not connected by the evidence with the note in suit, and the defence of usury fails. In reference to the checks that were offered in evidence and claimed to represent payments of a portion of the profits of defendant’s business, the evidence does not warrant a finding that they were the result of a usurious agreement.</p>

Appeal by defendants from a judgment entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict.

Appeal by defendant from a judgment in favor of plaintiffs entered on the verdict of a jury, and from an order denying defendant’s motion for judgment in its favor on said verdict. The facts are sufficiently stated in the opinion of the court.

<p> Ejectment—Adverse possession—Foreclosure of mortgage and the estate and interests of parties not made parties in the action of foreclosure. </p> <p>This action was brought to recover the possession of real estate from which, as alleged, the plaintiff had been unlawfully ejected by the defendants. The facts appearing on the trial and the points claimed by the respective parties are fully set forth in the opinion of the court.</p> <p>Held, that, upon the whole case, the plaintiff failed to establish title in herself, by adverse possession, or any right to possession superior to that of the defendants.</p> <p>Another view of the case also favors the defendants, namely: The defendants are in possession and have at least the rights of mortgagees in possession. Upon the sale under the first foreclosure of Price v. Scudder, the premises were bought by Edward Price, who immediately entered into possession. Although the foreclosure was defective the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26, 1855, the date of his death, is admitted in the brief of the attorney for appellant. The defendants claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt, and the defendants are entitled to all the rights of Edward Price by virtue of his possession as mortgagee, as well as those derived by virtue of the conveyance from the master. For these reasons ejectment will not lie against defendants. The remedy of the plaintiff was in equity. In every aspect of the case, as made by the plaintiff, the complaint was properly dismissed.</p>

<p>Appeal from an order of the special term directing service of a bill of particulars by the plaintiffs upon the defendant.</p>

<p> Undertaking to pay to the commissioners of charities and correction a certain sum weekly for the support of a family for one year. </p> <p>This action was tried before a judge of this court, without a jury, and judgment was entered upon his findings of fact and conclusions of law. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under section 999 of the Code. That section applies only to jury trials.</p> <p>I-Ield, that the motion for a new trial, which was made in the court below upon all the grounds stated in section 999, was, therefore, properly denied, and the order is now affirmed.</p> <p>It appeared upon the trial that in February, 1887, the same plaintiffs brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof in the district court of the first judicial district of the city of New York. That Andrew J. Constantine answered in that action and set up several defences, and upon a trial of the issues raised by the findings in that action a general judgment was rendered in favor of defendants, and upon an appeal from said judgment to the general term of the court of Common Pleas the said judgment was, on or about October 29, 1887, in all respects affirmed. It is well settled that only one recovery upon the recognizance or undertaking may he had upon a refusal to fulfil its conditions at any time after it has been executed, and that the whole amount is forfeited upon a single breach. Held, that the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication, and as such, it is conclusive between the parties on every question caused by it, and is a complete bar to the present action, at least,-so far as the -appellant now before the court is concerned.</p> <p>Judgment reversed and a new trial ordered.</p>

<p> Assignments or conveyances with intent to hinder, delay or defraud creditors. </p> <p>Action to set aside a bill of sale and an assignment of accounts as fraudulent and void as respects judgment creditors, represented by plaintiff as receiver.</p> <p>Held, on appeal, that the evidence amply sustains the findings of fact made by the trial judge, and the judgment creditors represented by the plaintiff are not estopped from maintaining this action ; and the legal conclusions reached are the logical and inevitable result. Even in the absence of an actual intent to hinder, delay or defraud creditors, a conveyance or transfer of property, the only consideration of which is an agreement on the part of the transferee that he will apply the proceeds in payment of the debts of the transferor, is void, unless the same is executed in the manner prescribed for a general assignment, and a conveyance in consideration of future services of any kind is also void as against then existing creditors.</p>

Statement of the Case by the Court. The plaintiff is a religious society, incorporated under the laws of the state of New York. From January, 1883, to May, 1891, it was the owner in fee of a certain lot of land, with the building thereon, situate on the Southerly side of Forty-fifth street, west of Second avenue in the city of New York, known on the tax map of the city as No. 32, in Block 248, in the Nineteenth Ward.

<p>Appeal by defendants from judgment in favor of plaintiff entered upon decision of judge at special term.</p>