Volume 3 — Abbott's New Cases

This was an action for limited divorce by Anna. E. Gardiner, against John H. Gardiner. The complaint alleged the marriage of the plaintiff to the defendant, and that both parties, were residents of this State. It then set forth in detail numerous acts of cruelty, and alleged: Seventh.

<p>Attachment.—Cebtibtcate op Property attached.—Contempt. —Production op Papers.—Beperence.</p> <p>A person required to give a certificate of property in Ms hands belonging to the defendant in an attachment, who refuses to do so, may be compelled to submit to examination as well as one who giyes a false certificate.*</p> <p>He cannot put an end to the examination by denying defendant’s title to the goods.</p> <p>If he refuses to answer on the ground that papers in his possession show that the goods do not belong to the defendant, he must, if required, produce the papers, and may be punished for contempt if he refuse.</p>

<p>Attachment.—Fobm of Obdeb fob.—Dischabge of.—Justification of Sureties.</p> <p>A defendant may apply, under section 687 of the Code of Civil Procedure, for a discharge of an attachment as to the whole, or a part of the property attached.</p> <p>The practice thereon,, stated.</p> <p>The order, discharging an attachment, should state whether the discharge applies to the whole of the property attached, or to part only ; and if so, to what part. But it is not necessary to insert directions as to the manner of the redelivery, unless they are called for by special circumstances.</p>

<p>'Construction op Agreement by lessor to Rebuild.—Inpants.— Lease.—Judicial Notice.—Mortgage. —Partition. —Referee’s Report.—Sale.</p> <p>That property, sought to be partitioned, is incumbered by a mortgage is no obstacle to a sale. The court may take judicial notice of a general depression in the market value of real estate. *</p> <p>A sale in partition should not be ordered, where infants, or a trustee without power to purchase, are parties entitled, unless it appears that actual partition, with or without compensation, cannot be made. Where there are several parcels, impossibility of dividing one of them is not a reason for ordering a sale of that one.</p> <p>Where infants are interested in property sought to be partitioned, it is the duty of a court of equity to be sedulous to protect their rights and prevent a sacrifice of their interests, so far as consistent with the legal and equitable rights of others; and in determining whether a sale or an actual partition shall be made, the court should closely scrutinize the probable effects of either course upon the interests of the infants.</p> <p>If there be inequality of value between one portion of property to be partitioned, that cannot be divided, and another portion that can be, the commissioners may make such allotment of the several parcels as will produce equality, or may produce equality by awarding proper compensation to be made in money.</p> <p>Actual partition, as between all the plaintiffs on one side, and all the defendants entitled, on the other, may be awarded, in preference to a sale and allotment of individual shares of the proceeds.</p> <p>Where a referee in partition reported that one portion of the property was capable of being partitioned and another was not, but omitted to state whether the whole property was not so situated that an actual partition could be made, although the order of reference required such a report,—Held, that objection to the report on the ground of such omission was well taken.</p> <p>An agreement that the tenant under an outstanding lease should be paid for his building on the premises at the expiration of the term, whether it be an incumbrance or not, may be deemed an equitable charge to be considered in making actual partition.</p>

<p>Damages.—Injunction.—Einai Decision. •—Reference. —Remittitur. ■—Sureties . —Undertaking.</p> <p>Where sureties on an undertaking given on obtaining a preliminary-injunction, by the terms thereof, were liable “if this court shall finally decide that the plaintiff was not entitled to the injunction, ” and the court at special term so decided, and at general term affirmed that judgment, and an appeal was taken to the court of appeals; Held, on a motion for a reference to ascertain the damages, sustained by defendant, that the decision of the court of appeals, when the remittur is sent down, should be deemed the final decision of the court.*</p>

Action for an accounting by a trustee. Trial by the court. The action was brought by Woodruff, Morris & Co., the plaintiffs, to compel George 0. Boyden, the defendant, to account for certain property purchased by him at a sale by the sheriff of Alleghany county, Pa.3 under execution on a judgment in his favor against John D. Ramaley of Pittsburgh.

Edward C. Hazard, Frank Creen and Albert J. Smith, sued William S. A. Wilson and John Armstrong, in the New Tork common pleas, on a promissory note. The action was commenced by service of summons and complaint, on September 1, 1877, on the defendant, John Armstrong.

<p>Stay on Appeal.</p> <p>Pending an appeal to the general term, from a judgment of the special term granting a perpetual injunction, the court at special term has power to order a stay of proceedings on the judgment appealed from.†</p> <p>An order of the court or a judge thereof is the only way of securing a stay in such a case.</p> <p>Such an order should be granted where, since the judgment appealed from has been rendered, the doctrine on which it was founded has been overruled by the appellate court.</p> <p>Proper security may be required as a condition of granting the stay. The effect of the decisions in the Elevated Railroad Cases considered and explained.</p>

<p>Receives. •—Contempt. —Mandate. —Appeal.</p> <p>When a receiver of a copartnership has been appointed, one of the parties cannot be punished as for a contempt in not delivering over property of the partnership to the receiver, unless the judgment or order appointing the receiver directs such delivery.*</p> <p>The term “Mandate,” under section 14, subdivision 3, of the Code of Civil Procedure, for a disobedience to which, a party may be punished as for a contempt, defined.</p> <p>No appeal lies from an order appointing a receiver.†</p>

This action was brought by Maria H. Brush, guardian of Walter F. Brush, Jr., against C. August Schuster, Julia Eberhardt, wife of Frederick Eberhardt, Pauline Bosch, Fanny Bosch and Bernhardt Bayerle, to foreclose a mortgage for $3,000 on real property in the city of New York. The three female defendants were all infants, and Hubbard Hendrickson, Esq., was appointed their guardian ad litem.

<p>Cause oe Action.—-Merger.—Election.—Deceit.—Partnership. —Costs in Action Against Executors.</p> <p>Where a member of a copartnership procures credit for his firm by means of false and fraudulent representations, and subsequently dies, a judgment, recovered against the surviving partner for the debt contracted by means of such representations, does not merge the right of action against the decedent’s executor or administrator for the deceit.</p> <p>Suing the surviving partner on the debt, does not waive the right of action against the decedent’s representative for the tort, as the plaintiffs are not bound to elect, but are entitled to recover of the former whatever they can secure under the contract and also to obtain against the latter redress for whatever damage they may have sustained from the fraud, †</p> <p>Since the judgment against the surviving partner can only be made available against the decedent’s estate through the intervention of a court of equity, the estate is protected against a double recovery.*</p> <p>The fact that plaintiffs may gain a preference as to the individual as well as to the partnership assets, is no objection to the action for the deceit against the individual estate.</p> <p>Double preference is allowable where the creditor holds double security—one joint, and the other individual,'</p> <p>A finding of fraud is sustained by the testimony of a single competent witness, to a conversation with a deceased person.*</p> <p>Where the existence of a former adjudication was in issue, and evidence of its existence was given, but the referee made no finding on the subject, and was not requested to—Held, that an exception to his not deciding that the adjudication was a bar, could not be sustained.</p> <p>Section 317 of the Code of Pro.† does not allow costs against executors and administrators where they are exempted therefrom by the Bevised Statutes.‡</p> <p>TMs provision is not confined to costs to be paid by the executor or administrator personally, but is general.</p> <p>In an action of a legal nature brought against an executor or administrator, a referee cannot award costs, as of course, against such defendant on awarding judgment against him. *</p> <p>There must be a special application,† in such a case, to obtain even a general award of costs.</p>

<p>Examination of Party before Trial.—Party.—Witness.—Sections 870, 873-874, of Code of Civ. Pro.</p> <p>The affidavit to obtain an examination before trial under sections 870, 873-874, of Code of Civ. Pro., need not pursue the exact language of the statute, but is sufficient if in substantial compliance therewith.*</p> <p>Form of a sufficient affidavit.</p>

Motion by defendant to vacate an order for his examination before trial. Hume Webster and others sued Alden B. Stock-well, for $25,000, the amount of two drafts drawn by the defendant upon the Howe Machine Co. of New York. The answer denied, on information and belief, the presentment and notice of non-acceptance and the protest.

<p>Examination before Trial.—Service of Papers.—Witness Fees for Party.</p> <p>An order for the examination of a party before trial cannot be enforced by proceedings for contempt, without proof of personal service of an order or subpoena on the party, and payment or tender of fees.†</p>

Motion by defendant to examine plaintiff before trial. George C. Wetmore, as assignee of Freeman Campbell, deceased, moved against B. A. Hegeman, executor, &c., for leave to file a supplemental complaint, for the purpose of establishing, by virtue of an alleged assignment to Wetmore, his right to he substituted as the plaintiff, in order to perfect a judgment upon a referee’s report, made several years ago in favor of Freeman Campbell, in an action wherein the latter was…

<p>Examination of Party before Trial.—Production of Books, &c., thereon.—Witness.—Sections 803, 804, 805, and 873 of Code of Civ. Pro.</p> <p>In the supreme court, a party to an action "will not be compelled to produce his books and papers by subpoena duces tecum,, while under examination as a witness before trial, under section 873 of the Code of Civil Procedure.</p> <p>The only mode by which a discovery of books and papers can be obtained before trial is under sections 803, 804, 805, &c„</p>

Motion by plaintiff for discovery and inspection of books. Eobert Cr. Walmsley brought this action against William Nelson, Jr., to recover $1,437.23, for money paid out and expended by the former for and on account of the latter, while in his employ, from May 1869, to October, 1872. The summons and complaint were served on the defendant on April 5, 1877.

<p>Demurrer to an answer.</p> <p>William E. White sued Albert A. Drake for $83.25, ■being the amount of several choses in action assigned' to said Drake, by one Robert Woodruff.</p> <p>The defendant in his fourth answer alleged as follows : “Defendant, for a further and separate defense, alleges on his information and belief that the plaintiff is not the real party in interest, but that said Wood-ruff is the real party in interest.”</p> <p>To this part of the answer the plaintiff demurred on the ground that it was insufficient in law upon its face, and constituted no answer or defense to the complaint or any part thereof.</p> <p>I. A mere allegation in an answer that a party to an action is not the real party in interest, is bad upon demurrer (Bentley v. Jones, 4 How. Pr. 204, 205; Russell v. Clapp, 3 Code R. 65; Thomas v. Desmond, 12 How. Pr. 321; Brown v. Ryckman, Id. 314 ; Seeley v. Engell, 17 Barb. 537; Jackson v. Whedon, 1 E. D. Smith, 142 ; Savage v. Corn Exchange, &c. Co., 4 Bosw. 15 ; Code of Civ. Pro. § 499 ; Code of Pro. §§ 147, 148; Burnside v. Matthews, 54 N. Y. 78, 82; Wright v. Wright, Id. 437, 441).</p> <p>II. “The defense that the plaintiff is not the real party in interest is new matter. A general avernment to that effect, however, is not enough ; the facts must be stated which constitute the defense, and which show that he is not the party in interest. ’ ’ And plaintiff may demur (Pomeroy's Remedies and Remedial Rights, p. 733, § 711, and cases cited ; 24 Ind. 318; 11 Id. 369 ; 10 Id. 205 ; 6 Id. 309 ; Code of Civ. Pro. § 494).</p> <p>III. Such a defense is not frivolous, and the remedy is not by motion. It is a material allegation, and if not. properly pleaded in the complaint the remedy is by demurrer (Tamisier v. Cassard, 17 Abb. Pr. 187).</p> <p>I. If the clause of .the-answer demurred to is too defective to constitute any part of a defense, it should be stricken out on motion (Bliss' Code, p. 341; Townsend v. Norris, 2 Weekly Dig. 433; Smith v. Greenin, 2 Sandf. 702; Ketcham v. Zerega, 1 E. D. Smith, 553 ; Thomas v. Harrop, 7 How. Pr. 57.</p> <p>II. If it does not consist of new matter it cannot be-demurred to. The clause or part of answer here demurred to is more in the nature of a negative to plaintiff’s right to maintain the action.</p>

<p>Foreclosure. —Mortgage.—Surplus.</p> <p>Under the surplus money rule, it is the common practice for the plaintiff to apply for the surplus money under a subsequent incumbrance held by him, but not referred to in his complaint, if the land was sold free from it, as it stands for the land in respect to those having liens or vested rights therein.</p> <p>The rule that a subsequent incumbrancer without notice of the foreclosure suit has no claim on the surplus, is not technical, but is founded upon the equitable principle that he cannot have a lien upon both land and surplus.</p> <p>If plaintiff, by selling free from his junior incumbrances not mentioned in the complaint, practically releases to the purchaser on the foreclosure sale, all claim to the equity of redemption, he may ask to have the surplus on the sale applied to the payment of such incumbrances.</p>

<p>Order to mark Judgment “ Secured on Appeal,” when invalid. —Sureties on Undertaking on Appeal, when discharged.— Subrogation.—Parties in Equity.</p> <p>Where an order to mark a judgment “secured on appeal,” was obtained on the application of a law firm, of which one of the sureties on the undertaking on appeal was a member, upon notice .to the plaintiff in the judgment, but without notice to the other surety on the undertaking,—</p> <p>Held, that the order was valid as to the plaintiff in the judgment, and. the surety, whose law firm made the motion, but was invalid as to the surety who had not been notified of the application.</p> <p>The several members of a law" firm constitute but one person in the law. The act of one in the course of the partnership business is the act of all.</p> <p>Upon the payment of the judgment by one of the sureties on appeal, he is entitled to be subrogated to the rights of the creditor existing at the time he signed the undertaking, and may enforce the judgment against all property on which it was then a lien, unless the lien had been lost through some act or omission of the creditor.</p> <p>The rule is, however, that the surety can enforce the judgment against lands of the judgment debtor, conveyed away by him, in .the inverse order of alienation only.</p> <p>When a person advances money to take up a mortgage, and the same is paid upon the understanding and belief on his part, that the mortgage is the only lien upon the land, the party so paying is entitled to be subrogated to the rights of the mortgagee, as against a judgment recorded subsequent to the mortgage, marked “secured on appeal,” although the same was so marked without notice to a surety on appeal, who afterwards paid the judgment.</p> <p>It is a rule in equity, that all persons should be made parties defendant, and such persons may be brought in on the trial, whose presence is necessary to a complete judgment, with respect to all interests involved, under the issues raised by the pleadings.</p> <p>The objection to an action in equity, that the plaintiffs remedy is at law, should be taken at the first opportunity.*</p>

<p>Assumed Name.-—Demubbeb to Complaint.—Evidence.—Libel.— Pleading.</p> <p>In an action for libel the plaintiff cannot give evidence of any loss or injury which he has sustained by the publication, unless it be specially stated in the complaint.</p> <p>When words charged as libelous are not actionable in themselves, the plaintiff must allege and prove that by reason of the libelous matter he has sustained some pecuniary damage.</p> <p>As the sole effect of the innuendo in a complaint is to explain, it cannot introduce new matter, nor in any degree enlarge the sense of the words to which it relates.</p> <p>To impute that one has acted in business matters under a contract or obligation entered into by an assumed name,—for example, that a wife made a contract by an assumed name,—is not libelous.</p> <p>To enable a husband to sue alone for a libel upon his wife, he must show a publication of words not libelous per se, and causing special damage to himself. In other cases the wife must join as a plaintiff.</p>

Motion by defendant for judgment on report of a referee. The action was for divorce on the ground of adultery. It was referred to Hon. John M. Barbour, former Chief Judge of this court, to hear, try, and determine the issues therein. He found, as matter of fact, that all the allegations of adultery were not established, but that all other allegations of the complaint were,. He therefore found that defendant was entitled to a dismissal of the complaint, without costs.

Report of commissioners in lunacy, appointed under special commission. Jacob Staudermann was convicted of murder and sentenced to death at oyer and terminer in the city of New York, in October, 1875. It appears that he had been regarded by his neighbors as weak minded, and the murder was the shooting of a young lady to whom he had been paying his addresses, and who had treated him with contempt.

Appeal by defendant from a judgment of general term, affirming judgment for plaintiff entered on a referee’s report. Charles W. Nash and Nelson H.'Fuller sued Isabella H. Mitchell on a bank check, drawn on her account, and post-dated, by her husband, as her attorney, and by him given to plaintiffs in exchange for their check of the same amount. The defendant had a separate estate, consisting of ten, acres of land in Westchester county, N. Y., and of lands in New Jersey.

Inquisition by special commission. The prisoner was indicted in the court of general sessions of the city and county of New York, on December 6, 1876, by the grand jury of this county upon a charge of arson in the first degree, for setting fire to-the dwelling house No. 123 Third avenue, in the city of New York, on the night of October 26, 1876.

<p>Criminal 'Responsibility of the Insane.—Limits of an Epileptic Circle.</p> <p>There is a period during an epileptic seizure, lying midway of complete self-obliviousness and self-consciousness, when the sufferer, although he has regained the power of automatic action, is not yet sufficiently restored to .his right mind to know the nature or consequences of his own acts, and does not, therefore, possess the mental capacity which is necessary for criminal responsibility.</p> <p>Facts on which an epileptic mother was held not criminally responsible for killing her child.</p> <p>It is not essential to the confinement of 'a criminal lunatic that an inquisition or report of the commissioners made under the acts of 1874, &c., and finding the recent existence of insanity, at the time of the commission of the act, should state that the person continúes insane.</p> <p>For the purpose of custody under the act, the insanity is presumed to continue, until further inquiry.*</p>

<p>Feigned Insanity.</p> <p>What facts constitute sufficient evidence that appearances of insanity are feigned.</p>

<p>Powers oe State Commissioner.—Proceedings for Discharge.</p> <p>—Continued Detention.</p> <p>Under L. 1874, p. 590, c. 446, tit. 10, § 4, as amended by L. 1876, p. 266, c. 267, the State commissioner in lunacy may proceed to inquire, not only into the legality of the original commitment to an asylum, but also into the propriety of continued detention.</p> <p>Under these statutes a commitment to an asylum, under the forms prescribed by the commissioner, may be deemed to have the same effect as to the liberty of the person, as had a commitment by a committee of a lunatic’s person, after office found.</p> <p>So also when an asylum superintendent has reasonable doubt as to the right to detain a patient after appearance of recovery, he may apply to the commissioner for a melius inquirendum.</p> <p>Pacts on which it was held that a lunatic, though in some respects improved in condition, ought not to be discharged.</p>

Report of the commissioner in lunacy on a question referred by the court. Eliza Gilbert, a woman of nearly seventy years of age, who had been found by inquisition to be of unsound mind and for whom a committee had been appointed, under whose care she had been for some twenty years, presented a petition to the supreme court to be allowed to make out of her property a gift of $3,500 for the support of certain indigent brothers and sisters, in sums of $500 each.

The petitioner was duly committed to the State Homoeopathic Asylum for the Insane, as a violent and dangerous lunatic, on September 1, last, upon the following evidence: He imagined that some waiters in a restaurant in New York, which he frequented, had drugged his food, because of sudden illness which attacked him soon after partaking of it.

On January 22, 1874, Mrs. Jane C. Norton, of Brooklyn, wife of the relator, was duly committed as a lunatic to the Bloomingdale asylum. This institution is a department of the New York Hospital, and under the administrative control of its board of governors. •She was removed therefrom by her said husband, while •still uncured, on December 24, in the same year.

Foreclosure of a mortgage. This suit was by David Hirsch against Alicia F. Trainer, individually, and as executrix of the last will and testament of Marcella Hanrahan, John B. Trainer, her husband, and others, to foreclose a mortgage made in November, 1873, by the said Marcella Hanrahan to her son-in-law, John B. Trainer, and assigned by the latter to the plaintiff. ' Hirsch first heard of the mortgage through his attorney, who simply told him such a mortgage could be…

Motion to vacate an order for the examination of a person not a party, before commencement of action, under section 871 of the Code. The order for the examination was granted on the following affidavit: “ Thomas E. Bryan, being duly sworn, says that he is of the age of 40 years, and resides, and for 21 years last past has resided in the city, county and State of New York. ‘‘Deponent further says thathe is about to commence an action in this court, by Messrs.

<p>Doweb not Released by Abticles op Sepabation between Husband and Wipe.</p> <p>An agreement by a wife, in articles of separation, to release her dower in her husband’s lands, will not discharge them therefrom, unless she elects to ratify it after his death.</p> <p>Although she accepted and is in the enjoyment of the pecuniary provision for her maintenance therein given, she is not estopped from claiming dower after her husband’s death.</p> <p>The wife cannot release to her husband her dower right, directly or indirectly.</p>

I. Preliminary injunction. John Patten brought this action against the New York Elevated Railroad Company, in the city of New York, to restrain them from entering upon the west side of Greenwich street, in front of his premises, for the purpose of moving the pavement or soil, or building their railway or switch therein, or in any wise incumbering the use of the street; and for damages for acts of this nature already committed.

I. Trial by the court, June, 1876. The plaintiff was a railroad corporation, created and organized under the general act of 1850, and as such corporation, for more than twenty years, it has owned and operated a double track horse railroad through Sixth avenue, from Amity street to the Central Park at West Fifty-ninth street; and, also, during the same period, it owned in fee certain lots of ground, with buildings and improvements thereon, fronting on Sixth •avenue, and…

Trial, by the court, of an action for an injunction. This action was commenced by Jeremiah V. Spader on April 28, 1876, against The New York Elevated Railroad Company, to enjoin the latter from extending and operating its railroad across the Battery in the city of New York. The plaintiff was the owner of No. 7 Bridge street, which constituted lot No. 15 of the government-house block, which was bounded by State street, Bridge street, Whitehall street and the Bowling green.

Trial, by the court, of an action for an injunction. This action was brought by Rufus Story against The New York Elevated Railroad Company to enjoin them from constructing their elevated railroad in Front street in the city of New York in front of the plaintiff’s premises. The plaintiff was the owner of Nos. 7 and 9 Front street, and claimed also to own one-half of the street in front.

<p>This was an appeal from an order of special term superseding a writ of certiorari.</p> <p>In April, 1876, proceedings under the statute relating to bastards were instituted against one Reynolds, before W. H. Barrett, a justice of the peace of the county of Oneida. Upon the return of the warrant, Justice Barrett associated with him Godfrey W. Miller, another justice of the peace of said county.</p> <p>The proceeding was then adjourned from time to time until June 9, 1876. Upon that day, the parties appeared before Justice Barrett, but Justice Miller did not appear.</p> <p>By consent and verbal stipulation of both parties entered in the minutes of the proceedings, R. U. Shermar, another justice of the peace of the county of Oneida, was associated with Justice Barrett in place of Justice Miller, and the question at issue was tried before them.</p> <p>Reynolds was adjudged to be the father of the child and an order of filiation was made. From that order, Reynolds appealed to the Oneida county court of sessions.</p> <p>At a regular term of that court held in December, 1876, appellant’s counsel moved to quash the proceedings and discharge the defendant on the ground that Justices Barrett and Miller constituted the legal court to try the issue, and that the court as thus organized, could not be changed or modified even by consent.</p> <p>That by substituting Justice Sherman in place of Justice Miller, the court had lost its jurisdiction, and that the same could not be restored even by consent.</p> <p>That the order of filiation made by Justices Barrett and Sherman was vbid.</p> <p>The court of sessions denied the motion.</p> <p>Thereupon, on the application of the appellant and before a trial had been had in the court of sessions the supreme court issued a writ of certiorari to review the proceedings. Respondent then moved at the Oneida special term held in April, 1877, to supersede and set aside the writ on the ground that the writ had been improperly issued in that it could not properly issue to review a proceeding that had not been finally determined. That it could not issue until the proceeding had been tried in the court of sessions, and a final decision had in the matter.</p> <p>Argument was heard at the same time on the motion to quash and supersede the writ, and on the return to the writ.</p>