Volume 3 — Abbott's New York Practice Reports

The action was commenced in March, 1860, to recover for-services alleged to have been performed by the plaintiff, Isaac C. Lea, for the defendants, The American Atlantic and Pacific Ship Canal Company. The plaintiff averred that the defendants were a corporation, and set out the cause of action for services. The defendants answered, the answer being sworn to by their secretary, denied the averments in the complaint, and set up a counter-claim.

<p>Application for judgment on frivolous answer.</p>

<p>Application for a mandamus, directing the justices and ■clerk of the Marine Court to issue execution upon a judgment of that court.</p>

This action was brought by George W. and Nathan C. Platt against Samuel P. Townsend, upon a promissory note. The complaint stated the making of the note, which was for $2,500, by the defendant, and its endorsement by the original payee to the plaintiffs.

Motion to change the place of trial. This action was brought by Ross W. Wood and Alexander H. Grant against Frederick Hollister arid Jane his wife. Both the plaintiffs resided in New York city; both the defendants in Utica, Oneida county. New York county was named as the place of trial. The complaint was in the nature of the former creditor’s bill.

Motion to open or set aside a judgment, and for a new trial. This action was commenced in July,' 1857, by Angelina Amory against James Amory, to procure a divorce upon the ground of the alleged adultery of the defendant. The defendant, by his answer,' after denying the marriage, alleged, as a separate defence, that, at the time of the supposed marriage, the plaintiff was the lawful wife of one William A. Williams, who was then living.

<p>Partnership.—General and Special.—^Application op Assets.</p> <p>A general partnership may exist in respect to a single adventure; or may he made to extend over any number of adventures agreed upon by the parties.</p> <p>To constitute a general partnership, nothing more is necessary than that the parties should agree to conduct a specified business, and to share its profit and loss. The business may be of a general nature, or may be confined to particular transactions; but in either case the partnership is general.</p> <p>Where parties agreed to carry on upon joint account the shipment of goods from Calcutta for sale in New York, providing in their agreement for the mode of payment, manner of sale, division of profits and sharing of losses, but prescribing no limit to the duration of the business or to the amount or number of shipments.</p> <p>Held, 1. That the parties were general partners.</p> <p>2. That the agreement did not create a new and distinct partnership as to each shipment, so that a liability incurred for one. shipment could not attach to another—although it provided .that “profit and loss should be settled in New York upon the winding up of each shipment.” The terms of the agreement, and the course of business'under it, constituted a general partnership between the parties, covering all the shipments made.</p> <p>3. That in the settlement of the partnership affairs, goods or assets of the firm, appertaining to the joint enterprise, whenever shipped, and whether in the hands of the partners themselves, or of their assignees in trust for creditors, must be applied to the payment of the joint debts.</p>

The complaint in this action was filed by M. H. Throop against Israel Hatch.

<p>Motion for an injunction.</p> <p>This action was brought by Charles T. Cromwell agoinst Thomas Stephens and others, composing the Croton Aqueduct Board, for the purpose of obtaining an injunction to restrain the Board from stopping the supply of the Croton water to a . building owned by the plaintiff. The-question involved turned upon the character of the building, and the mode in which it it was used; the facts respecting which are stated in the opinion of the court. ■</p>

<p>Application for directions to the clerk, respecting the adjustment of costs.</p>

<p>Costs.—Counter-claim.</p> <p>Where, in an action on contract, the plaintiff recovers less than fifty dollars, but extinguishes a counter-claim set up in the answer which exceeds that amount, neither party is entitled to costs.</p>

<p>Appeal from an order of the special term directing a set-off between two judgments..</p>

A special committee of the New York Common Council having been appointed to investigate the action of the Committee on Streets, Theodore F. Nims was subpoenaed (under Laws of 1855, 24 ch. 20), to attend before them and be examined as a witness. On his examination he refused to answer certain questions; the nature of which appears in the opinion. John Van Tine, on behalf of the Committee of investigation, now applied for an attachment pursuant to the act.

<p>. Appeal from a judgment of the District Court for the Sixth District.</p> <p>. This action was brought by Josephine Webster against August L. Nosser to recover damages for a breach of covenant entered into by the defendant with the plaintiff, in a lease. The Justice of the District Court before whom the cause was tried dismissed the complaint, and from his judgment the plaintiff appealed. The nature of the claim of the plaintiff appears in the opinion of the court.</p>

Motion to change the place of trial. Lewis Baker, with five others, was indicted for the murder of William Poole. On the first trial, in the City of New York, the jury failed to agree. A second trial was commenced after four days spent in impanneling a jury, but was interrupted by the sickness of one of the jurors. A certiorari was then issued at the instance of the District Attorney, removing the cause from the Oyer and Terminer, to the Supreme Court.

<p>Pleading.—Action fob Monet lost at Plat.—Fobm of Complaint.</p> <p>A complaint in an action to recover back money lost at play by the plaintiff to the defendant, which merely states that the defendant won at gaming, of the plaintiff a specified sum, with an averment of demand and indebtedness, and a reference to the statute, does not state facts sufficient to constitute a cause of action.</p> <p>Such complaint should aver that the money was lost and was paid or delivered to the defendant, or should otherwise show that the money was actually received by him. '</p> <p>■ Where a complaint in an action is defective for not stating facts sufficient to constitute a cause of action, the defect is not waived by the defendant answering it; but may be objected to upon the trial notwithstanding.</p>

The action was brought by Catharine Gori against Alfred 0. Smith, jr. The complaint claimed $20,000 damages for non-completion of a contract for the purchase of land. The defendant _ in his answer, besides alleging a defense, set up a counter-claim for $20,000 damages for non-performance of such • contract by the plaintiff. On this claim the plaintiff took issue by a reply. The action was tried before Justice MoCmw, without a jury, in October, 1864.

This action was brought by John P. Theissetin against John D. D. Bossett; and was referred to a referee for trial. The referee being unable to make his report within sixty days, as prescribed by the Code, obtained from defendant’s attorneys a consent extending the time within which to report, until the 4th day of July, 1863, and subsequently another further extension until December, 1863.

<p>N. Y. Marine Court.—Appeals.—Jurisdiction of N. Y. Common Pleas.—Mandamus.</p> <p>The act of 1853, authorizing an appeal from the decision of a single justice of the Marine Court, to the general term, does not take away the right of appeal from the Marine Court to the Common Pleas.</p> <p>But such an appeal can only be taken from a determination of the Marine Court made at general term.</p> <p>An appeal taken from the decision of a single justice of the Marine Court direct to the Common Pleas, is premature, and gives the latter court no jurisdiction. Notwithstanding that upon such appeal the Common Pleas order the judgment appealed from to be reversed, it remains in full force; and it is the duty of the clerk of the Marine Court, to issue, on application, an execution upon it.</p> <p>A mandamus will be granted to compel the performance of this duty by the clerk.</p>

TMs action was brought by George K. Chase against Robert Hogan; and after the death of Hogan was continued against Roswell D. Hatch and others, executors of Hogan. It was brought upon a contract between the plaintiff and Robert Hogan, dated September 18, 1856, by which Hogan agreed to sell, and the plaintiff to purchase a certain lot of land for $5,000, and plaintiff agreed to erect on said lot a house, which should be fully completed before May 1st, 1857.

Judgment, upon failure, to answer, was entered against the defendant, December 26, 1854. In April, 1855, proceedings supplementary to the execution were commenced, and the examination was begun and continued through several days, when, on June 27, 1855, an order was obtained by the defendant to show cause why the judgment should not be vacated* The other facts are set forth in the opinion.

<p>Application for a judgment on a verdict taken subject to the opinion of the court.</p>

This action was brought by Dennis McMahon, assignee of Charles T. Harrison, against Thomas C. Allen, to set aside a conveyance of property made by Harrison, the plaintiff’s assignor, to the defendant, upon the ground that it was procured by the defendant, from Harrison, by means of fraud. The action being referred to a referee for trial, he made his report that the fraud alleged was proved, and that the conveyance ought to be set aside.

<p>Charge to a jury, at circuit.</p> <p>This was an action of slander. The defendant’s barn was-burned in the night time. He afterwards accused the plaintiff of setting it on fire; which words were the slander complained of.</p> <p>The defendant in his answer denied speaking the slanderous words set out in the complaint; and for a second defence, set up that the defendant did set fire to the barn. Also, that the defendant had probable cause to believe, and did believe, the plaintiff was guilty of setting fire to the barn at the time it was alleged in the complaint that the defendant charged the plaintiff with such crime.</p> <p>The plaintiff proved that prior to the commencement of the action the defendant said that the plaintiff ‘ was the man who fired his barn, and that he (defendant) knew it to be so.’</p> <p>The defendant gave evidence tending to prove that the plaintiff was guilty of the offence of setting the barn on fire. He also proved facts and circumstances which his counsel claimed showed that he believed all he had said of the plaintiff was true at the time be spoke the slanderous words complained of. Much rebutting evidence was given, that tended to show the plaintiff was innocent of the crime the defendant had charged upon him. The trial occupied two days.</p>

<p>Bill of Exceptions.—Time fob making it.</p> <p>Sections 268 and 272 of the Code limit the time within which exceptions to the decision of a judge or report of a referee may be served, to ten days after notice of the judgment.</p> <p>Leave given to make a case with liberty to turn it into a bill of exceptions, does not extend the right to take exceptions beyond the ten days.</p>

<p>Appeal.—Liability of Constable.—Failure to make Return.</p> <p>The decision of a justice upon a motion to dismiss the summons for variance between the summons and the complaint, is not reviewable in the Common Pleas upon appeal from the judgment.</p> <p>The provisions of 3 Revised Statutes, 263, § 159, rendering constables liable in the amount of an execution for failure to return it, are not applicable to constables of the justices courts in the city of New York.</p>

This action was brought by Martha Ernst, the widow and executrix of Henry Ernst, against the Hudson Biver Bailroad Company, to recover damages for the death of Henry Ernst, her husband, who was run over by a train upon the defendant’s road, at the village of Bath, on December 29, 1855. The action has been some time in litigation. It was commenced in 1856, and was first brought to. trial in 1859, before Justice Gould; at which time the complaint was dismissed.

<p>Amendment ox Pleadings.—When Allowable.</p> <p>The provisions of the Code authorizing the amendment of pleadings after judgment, only permit amendments to be made for the purpose of sustaining the judgment.</p>

<p>Lien.—Action for Recovery of Money.—Costs.</p> <p>An action brought to enforce a lien, in which the plaintiff claims, not possession of the property subject to the lien, but judgment for-the amount of the debt, is am. action for the recovery of money, within section 304.</p> <p>The court cannot exercise discretion over the costs of such action, under section 306.</p> <p>Where plaintiff’ proved a claim of $40, and defendant a counter-claim of $39—Helif that defendant was entitled to costs.*</p>

<p>Amendment.—Action against Sheriff.</p> <p>It is only when the purpose of amendment is to conform the pleading or proceeding to the facts proved, that the court is restricted from allowing an amendment which changes the nature of the claim or defence.</p> <p>When the application is for any other purpose, it ought to be considered as similar applications under the Revised Statutes were.</p> <p>What amendment to the complaint should be allowed in an action against the sheriff for an escape.</p>

I. March,. Appeal from an order denying leave to file a supplemental complaint. This action was brought by Dennis McMahon, jr., as administrator with the will annexed of Euth S. Eathbone, against Thomas E. Allen. The object of the action was .to enforce an accounting for moneys received by the defendant as agent of John Harrison, deceased, who had been the executor of Eathbone, and thus the predecessor in administration of the plaintiff.

This action was brought by William Tulloss and Harris Thompson against Joseph Rapelye, as maker of a promissory note. The note was drawn payable to “ Samuel C. McGraw” simply. The payee endorsed his name upon it, however, and delivered it to the plaintiff.

This action was brought under the act of 1849, (2 Rem. Stats., 4 Ed., 717, § 121), by Hector Curtois against L. F. Harrison as Treasurer of the Young Men’s Democratic Union Club. I. That the judge erred in dismissing the order for Harrison’s examination, because the making that order was discretionary with the judge who made it, and it could not be dismissed by another upon the same state of facts: and II. That Harrison was liable to the examination demanded.

<p>Justice’s Coubrt.—Demurrer.</p> <p>On demurrer to the complaint in an action in a justice’s court, the court, if it deems the objection well taken, should order the pleading to be amended; and if it is not amended, should disregard it.</p> <p>A justice has no power to pronounce judgment on a demurrer without such order.</p>

<p>Examination of Parties.—Counter-claim.</p> <p>The defendant was examined by the plaintiff on the trial; after which, being examined upon his own behalf, he testified to a counter-claim that existed previous to the indebtedness upon which the action was brought.—Held, that the plaintiff was properly admitted to testify as to this new matter.</p> <p>Under a general objection to the competency of a witness, objections to the competency of individual answers given by him, cannot be raised.</p>

<p>Appeal from a justice’s judgment.</p>

<p>Appeal from an order of the special term denying a motion for a new trial.</p>

<p>Practice in Marine Court.—Inquest.—Judgment.</p> <p>An inquest taken in the Marine Court having been set aside and the cause placed on the calendar, the defendant failed to appear on the trial; whereupon the justice, by order, without proof, directed that the former judgment should stand. Held, error. The justice should have taken the plaintiff’s proofs, and rendered a fresh judgment.</p>

<p>Appeal from a justice’s judgment.</p>

<p>Appeal from the judgment of the justice of a district court.</p>

<p>Appeal from the judgment of the justice of a district court.</p>

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

<p>Married Women.—Recovery by Husband.</p> <p>The husband has a right to maintain an action for monéys due to the wife, unless it appears affirmatively, not merely that the moneys were those of the wife, but that they were held by her in the modes prescribed in the statutes of 1848 and 1849.</p>

<p>Appeal.—Settlement of Case.—Filing.</p> <p>The neglect of an appellant who has regularly served notice of appeal, to procure his case to be filed within ten days after it has been settled, confers no right upon the respondent to have the appeal dismissed, but it finally disposes of the case or exceptions, and leaves the parly to argue his appeal on the judgment record alone.</p> <p>Of the effect of laches in making application for leave to settle a case after the expiration of the time allowed for so doing.</p>

<p>Affidavits on Appeal.—False Return.—Jury Trial.—How Waived.</p> <p>On appeal to the Common Pleas from a justice’s judgment, affidavits cannot be employed in addition to the return.</p> <p>Where a party demands a jury trial in a justice’s court, and neglects to appear on the adjourned day, the justice may proceed to hear the cause without a jury.</p> <p>Failure to pay the jury fees in season for the issuing of the venire, in such case, is a waiver of the right to jury trial.</p>

<p>Assignment of Chose in Action.—Competency of Assignor.</p> <p>That the claim in suit was assigned to the plaintiff merely to enable the assignor to testify, does not render the latter incompetent; but only affects his credibility.</p>

<p>Marine Court.—Recoupment.—Counter-claim.</p> <p>A defendant in the marine or in a justice’s court, has a right to recoup damages upon the same contract on which he has been sued, so as to reduce the plaintiff’s claim against him.</p> <p>Whether in those courts the defendant can recover upon a counter-claim,—Query ?</p>

This action was brought by William Chamberlain against Young, Choles, and others, to foreclose a mortgage on certain real estate in Tarrytown.

Demurrer to a complaint. This action was brought by Dayton J. Viburt, appointed in former supplementary proceedings receiver of the effects of Henry K. Frost, against Henry K. Frost himself, and William J. Frost. The object of the action was to procure a certain assignment of property, made by Henry to William, to be set aside as fraudulent.

Benjamin Romaine died in 1844, leaving a will with eight codicils. The surrogate of New York admitted the whole of these to probate. An appeal was taken from this decision to the circuit judge, who reversed it; whereupon issues were ordered ,to be tried by a jury, under the statute. The jury found that the will and the first five of the eight codicils were duly executed, and constituted the will of Romaine.

Motion to discharge an order of arrest. This action was brought by “Ballouhey & Fouillet” against Auguste Cadot, to recover for conversion of property of the plaintiffs, who were glass-ware manufacturers at La Rochelle, France. The defendant was arrested upon an order holding him to bail in the sum of $35,000; which order he now moved to vacate.

This action was brought by James Brooks against Jackson S. Schultz, and others, composing the Metropolitan Board of Health, and for the purpose of procuring an injunction against the proposed action of the Board. A preliminary injunction was obtained, ex parte, on numerous affidavits.

This action was brought by Felix B. B. Kennedy, as receiver of Waterman C. Bradley, against Gould H. Thorp, and Waterman 0. Bradley. The facts out of which the action arose, were, that Bradley had made a general assignment in trust for the benefit of creditors to Thorp, almost immediately previous to which he had made extensive purchases of goods upon representations of solvency.

<p>Appeal from a judgment of a justice.</p> <p>This action was brought by Martha Walker against Isaac Swayzee and Caroline Swayzee his wife.</p>

Owen O’Conner, the father of John O’Conner, sued out a writ of habeas corpus in December, 1866, directed to Major-General Butterfield, Superintendent of the general recruiting service of the United States, commanding him to produce the body of John O’Conner, appearing, by the petition of the said Owen, to be his son, enlisted into the service shortly before that time, under the age of twenty-one years; the said Owen being entitled to the custody and services of his son.

<p>Appeal from an order at special term denying a motion to set aside executions in two causes.</p>

<p>Appeal from a judgment of the justice of a district court.</p>

Motion to dismiss an appeal from an order of reference. This action was brought by Ubsdell, Pierson and Lake, against one Root, to recover for goods sold and delivered to the wife of defendant. The account of the sales consisted of ten items. Issue was joined, and the cause regularly brought on for trial, and being called, the plaintiffs’ attorney moved for a reference, on the ground that the trial would involve the examination of a long account.

. Appeal from, a judgment rendered upon a verdict. This action was brought by Catharine N. Forest against her husband, Edwin Forest, to procure a divorce on the ground of adultery. The .answer denied the charges of the complaint, and set up recriminatory charges of adultery alleged to have been committed by the plaintiff, upon which the defendant prayed to be divorced from her.

This was an action or proceeding, under the Mechanics Lien Law, for the foreclosure of certain mechanics hens, on premises in the city of New York, of which the defendant Abbatt, was owner. An adjudication was had, and judgment was entered in favor of the owner, declaring the premises exempt from the hens. A notice of appeal from the judgment was then served by Yan Oleve; but no order was made staying proceedings under the judgment.

Appeals from two orders. The relator, Elizabeth Brunett, obtained a judgment in the supreme court against John Butcher, on which proceedings supplementary to execution were commenced before the county judge of Otsego, by whom it was ordered that the defendant appear before a referee to be examined concerning his property, and that the evidence of such party and of such witnesses as might be offered should be reported to said county judge.

This action was brought by William H. Masterson, and others, against Arthur Short, and others. The plaintiffs were proprietors of a livery stable opposite the Central Park, in the city of New York; and the object of the action was to restrain the defendants from keeping hackney-coaches at a public stand in front of their stables, in competition with their business.

I. June.—Motion to strike out a portion of an answer. This action was brought by Robert Diddell against Abigail Ann Diddell, his wife, to procure a divorce on the ground of adultery. The complaint charged the plaintiff with the commission of acts of adultery with one Hill, at various times in 1855 and during the first four months of 1856.' The answer denied the commission of the offence charged in the complaint.

<p>Motion for an allowance.</p>

<p>Motion to dismiss an appeal.</p> <p>The appeal was taken by the defendants from an order of the Supreme Court, made at a general term in the city of New York, on December 31st, 1864, affirming an order of the special term, made December 18th, 1863, denying a motion of the defendant to set aside a sale of certain real estate in the city of New York, and that a re-sale should be had under a judgment of the court previously rendered.</p> <p>The facts of the case are as follows: The action was brought by Charles King, Edward J. King and Sylvester Brush, against Nathan 0. Platt, to compel the specific performance by the defendant of an agreement to purchase real estate in New York. The purchase price was $75,000, and the time fixed for the performance was October 6th, I860. It resulted in a judgment in favor of the plaintiffs, which was entered on the 15tll of March, 1862.</p> <p>This judgment adjudged the balance of the purchase money unpaid, with interest, to be $78,412 60, and directed the defendant to complete his purchase within ten days, by paying the costs, &c., and $22,162 60 of the purchase money due, and execute and deliver his bond and mortgage on the premises to secure the balance ($56,250).</p> <p>It was further adjudged, that if the defendant failed to comply with the judgment within the ten days, then that the premises be sold at auction under the direction of a referee; and that out of the proceeds of the sale the referee pay costs, &c., and the amount due the plaintiffs, and deposit any surplus to abide the order of the court; and if there should be a deficiency, that the defendant pay the same, &o.</p> <p>No appeal was taken from this judgment. When the sale took place, the whole property brought $75,950, and was purchased by or in behalf of the plaintiffs, leaving a deficiency of about $10,000.</p> <p>The premises were conveyed to the plaintiffs by the referee, and he made and filed his report.</p> <p>On February 12th, 1863, the defendant procured an order requiring the plaintiffs to show cause why the sale made should not be vacated and set aside, and a re-sale ordered.</p> <p>• This order was obtained upon affidavits suggesting the following as grounds upon which a re-sale was moved for : ■</p> <p>1. That the sale was made on the day of a charter election*</p> <p>2. That the auctioneer, named in the notice, did not personally officiate at the commencement of the sale.</p> <p>3. That the price bid was inadequate.</p> <p>4. That the plaintiffs approached bidders at the sale, and deterred them from bidding, and prevented competition, &c.</p> <p>These allegations were met and substantially denied by affidavits on the part of the plaintiffs; and when the motion caine on to be heard at special term, an order was first made referring it to a referee, “ to take proof whether any, and if so, what inducements, communications or representations were made or held out by the plaintiffs or their agents, or in their behalf, or by the referee, to deter or prevent bidders at the sale had under the judgment in this action;” and he was directed to report proof to the court. On the coming in of the report, counsel were again heard upon the report- of the referee and the original papers, and on December 18th, 1863, the motion was denied, with costs. This order was affirmed at the general term, and from the order of affirmance the appeal of the plaintiff was taken to this court December 29,1866.</p> <p>I. The question involved in the application to the supreme court resulting in the order appealed from, required the exercise of mere discretion, and the decision of the supreme court is final, and the order not appealable to this court. This has been several times so adjudged by this court. (Dow v. Conden, 28 N. Y., 122; Buffalo Savings Bank v. Newton, 23 N. Y, 160; Wakerman v. Price, 3 Comst., 334; Hazleton v. Wakeman, 3 How. Pr., 357.) 1. In the cases cited the order of the court below directed a re-sale, but in this case the re-sale was refused. Whether the decision be one way or the other can make no difference, as the right of appeal depends upon the character of the questions involved in the order appealed from, and not upon how they were decided. If resting in discretion, a decision either way is final. 2. In fact, it is very easy to see that there is no fixed legal right involved in the present question. It is, simply, • whether an officer of the supreme court has duly executed its process, or has abused it; and that question belongs to the court whose judgment or process is claimed to have been abused. 3. A matter resting in the discretion of a court or judge, is not such a right as can be made the subject of an appeal to this court. 4. It may be conceded that the general term could hear an appeal from an order of the special term in a case like the present, but that does not prove that an appeal lies to this court. (People v. New York Central R. R. Co., 29 N. Y, 418.)</p> <p>It. The appeal was too late, and for that reason should be dismissed. 1. The statute requires that an appeal under the subdivision 3 of section 11 of the Code must be taken within two years after “ the judgment shall have been perfected by filing the judgment roll.” (Code, §§ 11, 331.) 2. The judgment roll in the present case was filed March 15, 1862, and the appeal taken on December 29, 1866. 3. The statute seems to be plain that the appeal from an order under subdivision 3 of section 11, must be taken within two years after the judgment in the action is perfected, and however unwise this provision may be the court must give it effect.</p> <p>I. The appeal in this cause -was taken in time. 1. The word “ judgment ” in section 331 of the Code signifies the “actual determination” made at general term ; in this case, the order appealed from, which is “ a final order in.the nature of a judgment.” (Bank of Genesee v. Spencer, 18 N. Y., 152.) It cannot signify the special term judgment in this action ; because the time to appeal can be limited only upon something from which an appeal can be taken. By the Code, it is uniformly limited upon the thing, or notice of it, appealed from. The special term judgment had been perfected more than t^vo years when the general term order was made. Thus, an appealable order might be made at a day when the time to appeal from it had expired. An absolute legal right would begin to exist when its day had passed. 2. This appeal was taken within two years after the general term order, and is in time. That such appeals have been entertained, see Wolcott v. Holcombe, 31 N. Y., 125.</p> <p>H. The order is appealable within subdivision 3 of section 11 of the Code. It is a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. 1. The order is final. While it remains, there is no other proceeding in the action possible. Except for this appeal, the litigation is ended ; nor is there left to the appellants any remedy. 2. It affects a subj stantial right. The equity of redemption in valuable real estate is gone beyond recovery. A judgment for $10,269 67 deficiency has passed against appellants. An order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, or with a greater amount than he ought to pay, affects his rights, not in a matter of form, but in substance. (People v. Central R. R., 29 N. Y, 422.) 3. It was made on a summary application for a resale after judgment, and assumes the validity of the judgment. It is settled in this court, that the order referred to in subdivision 3, is one founded upon the judgment and recognizing its vaEdity. (McGregor v. Comstock, 19 N. Y., 583 ; Selden v. D. and H. Canal Co., 29 N. Y. 637.) 4. Under circumstances clearly distinct from this case, orders in cases of judicial sales, have been held not to be appealable. (Dows v. Congdon, 28 N. Y., 122 ; Buffalo S. Bank v. Newton, 23 N. Y., 160 ; Wakeman v. Price, 3 Comst., 334; Hazleton v. Wakeman, 3 How. Pr., 457.) In aE these cases, the motion for re-sale was granted. There were further legal proceedings to be taken ; a re-sale, a report, and the proceedings thereon; the order was .not final. The respondent’s substantial right, viz.: to collect •the principal and interest of his claim, was not affected. (Colier v Whipple, 13 Wend., 228.) 5. In the last reported case in .the court of errors, an appeal was entertained from an order of the Chancellor refusing to grant a resale. (Tripp v. Cook, 26 Wend., 143.)</p> <p>III. The grounds upon which this case was presented to, and decided in the Supreme Court were not addressed to its discretion. The relief was claimed as a right, a legal remedy, from the fraud of respondents. It is when the order involves no question of strict legal right, that it is deemed within the discretionary powers of the court below, and not appealable. Dows v. Congdon, 28 N. Y., 124.) In this case this question of strict legal right is involved: Whether the respondent’s "misconduct and interference with bidders at the sale, resulting in them purchase of the property and a judgment for deficiency, was not unconscientious and oppressive, and a violation of fixed principles of equity?</p> <p>IV. The respondents’ interference with free bidding was a constructive fraud, and a violation of the settled equitable principles by which judicial sales are controlled. (See Thompson v. Davis, 13 Johns., 115; Twining v. Morrice, 2 Brown’s Ch., 331; Jackson v. Crofts, 18 Johns., 110; Collier v. Whipple, 13 Wend., 226 ; Brown v. Frost, 10 Paige, 246; American Ins. Co. v. Oakley, 9 Paige, 259; Gould v. Libby, 24 How., 440; Story Eq. Jurisp., 293; 1 Sugden V. & P., 96, § 12; Brisbane v. Adams, 3 Comst., 129.)</p>

<p>Execution against the Person.—Judgment of Justice’s Court.</p> <p>Execution against the person cannot be issued, under section 288 of the Code, upon a judgment rendered in a district court, although a transcript of it has been filed with the county clerk, so that the judgment is to be deemed a judgment of the Common Pleas.</p>

<p>Partnership Creditor.—Rights in the Estate of Deceased Partner.</p> <p>Before a creditor of a firm, one of the partners in which is deceased, can compel the payment of his claim out of the estate of the deceased partner, he must recover judgment against the surviving partner, and show a failure to collect the judgment on execution.</p>

Motion to set aside inquest on ground of irregularity, or to open it upon the merits. The action was brought by Bogardus and Barrows against Richtmeyer and Bliss.

<p>Injunction.—Complaint.—Affidavits.</p> <p>An injunction can only issue upon a complaint. Affidavits, without a complaint,</p> <p>are not a proper basis for the order.</p>

Motion to dissolve an injunction. This action was brought by Stephen Crocker against Abner Baker, Zebulon H. Benton, and the Alpine Mining Company, The object of the action was to reduce the amount of a mortgage to seven thousand dollars, and to restrain the foreclosure of it by advertisement. The plaintiff’s action was grounded on alleged fraud ; which was averred in the complaint, merely on information and belief.

<p>Appeal from an.order of the special term denying a motion for re-taxation of costs.</p> <p>This action was brought by David Gray against Alexander Hannah. It originated in a justice’s court, where the plaintiff recover'd a judgment for eighty-six dollars damages, besides costs. The defendant appealed to the Monroe county court, where a new trial was had, and the plaintiff received a verdict for eighty dollars only; and as the recovery was less favor-' able for him than in the justice’s court, the county court ordered that he pay costs to the defendant, and that they be set off against the plaintiff’s recovery. On appeal to the general term of the supreme court, that order was reversed, with ten dollars costs. (See 1 Abb. Pr., N.8., 48.) The plaintiff then docketed a judgment in the county court for the amount of his recovery, besides interest and $49 81 costs, and collected the same. The ten dollars costs allowed by the court on appeal were pot included in the judgment, nor collected ; and subsequently the plaintiff procured the clerk to tax the costs of such appeal at $61 48. The defendant then moved at special term for a re-adjustment of such costs, on the ground that the plaintiff was entitled to only the ten dollars costs allowed by the order; but the motion was denied, and the defendant appealed.</p>

<p>Several cross motions.</p> <p>This action was brought by Teresa Asking against Angelo Hearns.</p>

An appeal from an order of the county court. This action was brought by William Harper against Lewis Allyn. The question presented in the present proceeding, which was one of calendar practice only, appears from the opinion.

This action was brought in the district court of the city of New York for the sixth district, by Charles C. Schmitt against Charlotte Costa, for $56 claimed-as balance due upon the sale of a sofa, by the plaintiff to the defendant. The defence was that defendant was a married woman ; and that the statutes relative to married women did not authorize a personal action against her, inasmuch as she carried on no business, and ■owned no separate estate.

<p>Motion to dismiss appeals.</p> <p>This action was brought by Richard M. Hoe against Jesse Sanborn. The facts involved in the present hearing are sufficiently stated in the opinion.</p>

This action was brought to recover the value of services rendered by the plaintiff, a physician, to defendant’s family, for which services the plaintiff claimed $500. • The answer set up three defences, viz :—1. A denial of the facts stated in the complaint. 2. A counter-claim, damages sustained by the defendant, by reason of negligence and malpractice, amounting to $5000. 3. A counter-claim of $171, for wines sold and delivered to plaintiff.

Abraham Bogart, Jr. was indicted for misdemeanor, consisting in a violation of the act of 1846, {Laws of 1846, 408), which forbids any other officer than the committing magistrate to let to bail, unless notice of the application to bail shall be given to the district attorney;—&c. The indictment charged, that one William ETambe was indicted for grand larceny, and was thereafter committed for trial by Recorder Smith, of the city of Hew York;—that while he stood committed, the…

<p>Legal and Equitable Remedies.—Merger.</p> <p>In an action by one claiming under the grantor in a perpetual lease made subject to a rent charge, brought to recover possession of the premises, upon the ground of a breach of the condition to pay the rent, where the defendant claims an extinguishment of the rent charge by a technical legal merger, the plaintiff may rebut that defence by showing that in equity no merger has taken place.</p> <p>It is not necessary, under the Code of Procedure, in such a case, that the plaintiff should resort to a separate action of an equity nature, to have the existence of*the rent charge declared. The whole merits of the controversy may be tried in the action to recover possession of the land for the non-payment of the rent, notwithstanding the Sets relating to the alleged merger would have been, before the' Code, of equitable cognizance.</p> <p>The cases upon the union of legal and equitable remedies established by the Code of Procedure, reviewed.</p> <p>The rule that although there is a unity of two estates in one possession, yet no merger will take place if the circumstances show an intent to maintain the two interests distinct, applied in a peculiar citse.</p>

Motion in a foreclosure case after judgment, to stay the plaintiff from further proceedings on payment of the interest in arrear.

In March, 1860, one Edmonds obtained a judgment in a district court of the city of New York,, for about eighty dollars, against the plaintiff’s testator, for which an appeal was taken, but without the requisite steps to stay execution.

Objection to complaint on the trial for the want of proper parties defendant. This action was brought by John L. Tonnelle against Valentine U. Hall and others, as executors of John Tonnelle deceased.

This action was brought by Thomas Dunham and Frederick Dimon against Samuel Whitehead, James Hare and John Pugh.

<p>Motion for a stay of proceedings.</p>

<p>When, upon trial of a cause at circuit and before a jury, the court, on motion of defendant when the plaintiff rests, dismisses the complaint, and the plaintiff excepts, it is competent for the judge to order the exception to be heard, in the first instance, at general term.</p> <p>Where, on an appeal founded on such an exception, it clearly appeared - that the court had decided the cause upon a wrong issue, and had ■ omitted to notice a fact material to the plaintiff’s case,—Held, that the exception ought to be regarded as sufficient to warrant the appellate court in reviewing the decision.</p> <p>An indorser who pays the amount of a note to a holder, under a mistaken belief, founded on statements of the holder, that he, the indorser, has been duly charged, or that a prior indorser has been, may, on discovering that he was not so charged, maintain an action to recover back the amount paid.</p> <p>To constitute a voluntary payment within the rule that a voluntary payment cannot be recovered back, it must be made with a full knowledge of all material facts.</p>

<p>Criminal Contempt.—Disobedience of Order.</p> <p>The power of the court to punish, as for a criminal contempt, “ wilful disobedience of any process or order lawfully made by it,” should not be exercised unless the acts constituting the alleged contempt are clearly proved, and constitute a positive violation of the plain terms of the process or order.</p> <p>If the order disobeyed be capable of a construction consistent with the innocence of the party, of any intentional disrespect to the court, an attachment should not be granted.</p>

' This action ■ was brought by Francis Dainese to obtain an injunction restraining the defendants, the members of the firm of R. H. Allen & Co., from prosecuting proceedings against him, before the defendant Charles Hale, an American Consul at Alexandria; Egypt. The plaintiff is a citizen and resident of the District of Columbia. In 1863, while at Alexandria, he, through an agent in New York, ordered certain goods sent to Egypt.

On June 8, 1852, an execution was issued and delivered to the defendant, then sheriff of New York, in a suit wherein David S. Mills was plaintiff, and John Thursby defendant.

<p>New Tbial.—Evidence in Homicide.</p> <p>The former decision of the Court in this cause (32 N. T., 239) approved.</p> <p>The power conferred on the Court of Appeals by Laws of 1855, ch. 337, as amended Laws of 1858, ch. 330, to grant a new trial in certain criminal cases,. although no exception was taken below, is confined to cases tried by the Court of General Session's for,the city and county of New York. It does not extend to causes tried in a Court of Oyer and Terminer.</p> <p>The rule for determining what is sufficient evidence of premeditation to convict for murder—stated.</p> <p>Upon a trial for murder, conversations had in the presence and hearing of the prisoner, at the time of the homicide, and tending to explain the prisoner’s state of mind, may be given in evidence, as part of the res gestee.</p> <p>It is not error for which a criminal conviction will be reversed, that the judge, who tried the cause, denied a motion to strike out evidence which was wholly immaterial.</p> <p>An expression of opinion, by the presiding judge, upon the weight or bearing of the evidence submitted to the jury, is not matter of exception.</p>

<p>Absent Persons.—Time of Death.—Presumption.</p> <p>In the case of a person long absent and unheard from, it is competent for the court or jury to infer from circumstances, if any appear in proof, the probable time of his death.</p> <p>If no sufficient facts are shown from which to draw a reasonable inference that death occurred within the lapse of seven years, the person will be accounted in all legal proceedings as having lived during that period; and rights depending upon his life or death will be administered as if he had died on that day,,</p> <p>Of the power of executors to compound with testator’s widow for her dower right. A policy of insurance on buildings does not pass under a general devise of personal estate, but the representatives of deceased take such moneys as may be realized upon it in trust for the parties interested in the property insured.</p> <p>Application by a legatee for a decree for thé payment of a legacy by executors.</p>

This was an action prosecuted by an attachment creditor to collect a demand due from defendants to the debtor in the attachment, upon which the attachment had been levied. The objection was taken that the plaintiff had not filed the proper undertaking; and he now applied for leave to do so.

Application to open a default upon a motion to change the place of trial. The defendant formerly moved, at a special term held by Mr. Justice Shankland, to change the place of trial of this action from Chemung to Saratoga county, which motion was granted by default. The plaintiff now moved to open the default upon an affidavit showing he had a greater number of witnesses in Chemung than the defendant had in Saratoga county.

<p>Appeal to Court of Appeals.—Notice of Exception to Sureties.</p> <p>On appeal, the respondent may except to the sureties in the undertaking within ten days after it is filed, though more than ten days have elapsed after a copy of it and the notice of appeal were served.</p>

Motion to set aside an execution against the person. This action was brought by one Fake against Edgerton and Britton. The defendants were held to bail by an order which still remained in force. Judgment was perfected July 3,1856, and a transcript filed July 7. An execution against the property of defendants was issued on the last mentioned day to the sheriff of the city and county of New York, which was returned unsatisfied on August 25, following.

The plaintiff having obtained a judgment, the defendant appealed to the general term, and gave an undertaking which operates as a stay of proceedings. He now moved, under section 282 of the Code, for an order that the clerk enter on the docket of the judgment, that it was “ secured on appeal.” Notice of the motion had been given to the owner of the judgment. The plaintiff objected that no notice had been given to the sureties in the undertaking.

<p>Motion for a certiorari.</p>

Trial by the court without a jury. This action was brought in May, 1855, by the People on the relation of Monroe Henderson, and Monroe Henderson, as plaintiffs, against John S. Snedeker. The object of the action was to test the right of defendant to exercise the office of county clerk of the county of Queens.

<p>Motion for leave to enter judgment on an award of arbitrators.</p>

<p>Former Adjudication.—Who are Bound.</p> <p>R. brought a suit against the present defendants and D., to set aside a sale in foreclosure, for fraud affecting the title under which the mortgage was given. While the action was pending the present plaintiff bought the mortgage. R. afterwards recovered judgment that the sale was void for fraud in the mortgage.—Held, that the report of a referee, and the judgment in that action, were admissible on behalf of the plaintiff in the present action, which was to recover damages for fraud in inducing the plaintiff to buy the mortgage; and that they were conclusive on the defendant, as to the facts adjudged.</p> <p>Where a person makes a false statement, not knowing that it is false, but knowing facts sufficient to put him upon inquiry, he is liable for the consequences, to the same extent as if he had actual knowledge.</p>

<p>Action fob causing Death.—Dismissal of Complaint.— Pbesumption.</p> <p>In an action by an administrator to recover damages for causing the death of his intestate, if it appears from the plaintiff’s, evidence that the negligence or wrongful act of the deceased contributed to cause his death, defendant is entitled to have the complaint dismissed. Per Boches, J.</p> <p>There is no presumption of law that the owner of premises upon which a death by accident occurs, is chargeable with fault or negligence in respect-to the cause of death, or with liability therefor. To charge him with damages, circumstances under which the injury occurred must be proved, showing some wrongful act or omission on his part.</p>

Motion to vacate an order granting an allowance. This was an action to recover certain real property, situate in the village of Yonkers. The case was tried at the June circuit in Westchester county. After the plaintiff’s proofs were closed, the judge deeming them insufficient, directed the jury to find a verdict for the defendant, and rendered a judgment dismissing the complaint.

<p>Application for leave to issue execution.</p>

Habeas Corpus. John Williamson, having been sent to the House of Befuge upon a conviction in a court of special sessions in the city of New York, was brought before the court on a writ of habeas corpus. The objection taken to the detention, appears in the opinion.

<p>Application for an order to restrain proceedings upon a judgment of the Marine Court pending an appeal to the Common Pleas.</p>

Nathan Ford died in 1829, leaving a will of real and personal estate, which was duly proved before the surrogate of St. Lawrence County, and letters testamentary were granted to the executors therein named, all of whom died on or before April 2,1842, and letters of administration with the will-annexed, were issued to Chilion Ford, the respondent.

Application under section 122 of the Code to be made a party. This was a partition suit brought by Nathaniel F. Waring and others against Henry P. Waring and a large number of others, defendants. Henry T. Clarke now petitioned to be made a party to the suit. His petition showed that Henry P. and Henry Waring were formerly partners in business, under the name of Henry Waring & Son, and as such partners became indebted to the-petitioner.

<p>Attachment.—When it may Issue.</p> <p>The attachment authorized by section 227 of the Code of Procedure, is allowable in actions for legal relief only. It cannot be issued in an action for equitable relief;—e. g., an action seeking to have a deed canceled, and an accounting and an injunction and receiver.</p>

Motion to set aside a judgment and execution. The action was brought by George W. Baxter as an administrator, and in behalf of the estate of his intestate, against Arnold A. Davis. Pending the suit, the administrator was removed; after which, defendant, being successful, entered judgment against him personally for costs. This judgment and the execution issued upon it, the plaintiff moved to set aside.

<p>Reference.—Injunction.</p> <p>In an action to open stated accounts and for an accounting, it is premature to apply for a reference, until the question of the right to an accounting has been determined. Until then, it does not appear that any examination of the accounts -will be required.</p> <p>Where executors bring an action to close up the estate, against surviving partners of the testator, and it is alleged that moneys were withdrawn from the firm by the testator during his lifetime, and defendants interpose a counter-claim for the moneys' thus withdrawn without then- consent, the defendants, upon its appearing that the executors may probably make a distribution of the assets in their hands before the determination of the suit, may have an injunction to restrain them from so doing.</p>

The action was brought in the name of the People of the State against Alden Vilas, and others, as sureties upon the official bond of M. P. Jackson, as loan commissioner of the County of St. Lawrence, for loaning the moneys of the United States deposited with the State. The bond was dated June 15, 1850.

Demurrer to complaint. This action was brought by Charles Shultz against Jacob Depuy, as the drawer of a check upon the Hew York County Bank, payable to the plaintiff or bearer, for one hundred and twenty-nine dollars. The complaint averred that the check had been delivered to the plaintiff for value, and that its payment had been demanded at the bank, but it had not been paid.

<p>Demurrer to a complaint.</p> <p>This action was brought by Thomas Price against John McClare, Henry McLean and James Cain.. The complaint stated that the defendants were indebted to the plaintiff upon a promissory note. The, note was set. forth in the complaint. It purported to be signed “John McClare & Co.,” and to be endorsed “ Henry McLean,” “ James Cain.”</p> <p>The complaint then averred that before the note fell due it was passed to the plaintiff for a valuable consideration,—that the whole amount thereof was justly due to him from the defendants,—that when it became due, it was protested for non-payment,—and that due notice of protest was given to McLean and Cain.</p> <p>The defendant McClare, and the defendants McLean and Cain, demurred separately. The question was whether the pleading was good under section 162 of the Code.</p>

This action was brought by Jeremiah F. Hamilton in behalf of himself and all other stockholders of the Accessory Transit Company who might come in and contribute, against the Company, and Cornelius Vanderbilt and several others, who were alleged to be officers of the corporation. The complaint stated that the Accessory Transit Company was formerly a corporation created by the Government of the State of Nicaragua, having an office within the city of New York.

<p>Motion to discharge a female defendant from arrest.</p> <p>This action was brought by The Northern Railway Company of France, against Charles Carpentier, Louis and Eugene Grélet, Felicité Dubud, Auguste Parot and one Guerin. An order of arrest was granted against the defendants, on an affidavit which set forth the following facts.</p> <p>Carpentier and Louis Grélet were formerly in the employ of the plaintiffs, in fiduciary capacities ; the first being cashier,, and the second under-cashier. They had a large amount of valuable property belonging to the company, entrusted to their care. In August, 1856, they absconded; and on an examination of their books, accounts, &c., it was found that certificates of 5747 shares, with coupons annexed, of the stock of the company, worth about two hundred dollars per share, were missing; having been embezzled by Carpentier and Grélet. It was shortly afterwards found that they had come secretly to New York, and were here associated with the other defendants for the purpose of disposing of the stock, and that the defendants had together fraudulently and feloniously converted the stock to their own use. The affidavit concluded' with a charge framed in general words, that Eugene Grélet, Felicité Dubud, and Auguste Parot, combined and confederated with Carpentier and Louis Grelet to deceive and defraud the plaintiffs, and aided and assisted them in disposing of the property, knowing the same to have been embezzled and fraudulently obtained.</p> <p>A motion was now made to discharge from arrest the-defendant Felicité Dubud, on the ground that the cause of action was not “ a wilful injury to person, character or property.”</p>

This was a motion for an attachment to punish a judgment debtor for an alleged contempt in disposing of property in violation of an order for Ms examination in proceedings supplementary to execution.

<p>' Motion to set aside a complaint.</p> <p>This action was brought by William M. Garrison against William H. Carr. After having obtained an extension of time to answer, but before answering, defendant moved to set aside • the complaint as inconsistent with the summons.</p>

<p>Appeal from a judgment and order of the Supreme Court.</p> <p>This action was brought by Loren L. Tompkins against Titus Ives, to recover for services rendered, and for board and lodging furnished to the defendant.</p> <p>Four days before interposing an answer to the complaint, the defendant served an offer to allow judgment to be taken for $70, besides costs and disbursements. This offer was not accepted. , The defendant then answered, setting up, among other things, counter-claims for goods sold and services rendered.</p> <p>The cause was tried before a referee, who found, as conclusions of fact, that the demands of the plaintiff, established on the hearing before him, amounted to $336 40; that the amount of the defendant’s payments and counter-claims was $268 61; and that the plaintiff was entitled to judgment for the balance, $67 79, with interest, amounting in all to $69 80, and for that amount judgment was entered. The counterclaims allowed by the referee embraced, among other things, the value of corn, butter and other articles sold by the defendant to the plaintiff, amounting to $37"; so that if this allowance had not been made, the recovery would have largely exceeded the sum named in the offer.</p> <p>On the entry of judgment, the clerk adjusted costs on the theory that the judgment recovered by the plaintiff, being for the sum of $69 80, was less favorable than the offer. The plaintiff applied to the special term for a retaxation of costs; and the court set the taxation aside, and ordered that full costs be allowed the plaintiff. From this order the defendant appealed to the general term, when it was affirmed. The object of the present appeal was to review the order of the general term.</p> <p>The proceedings in the Supreme Court are reported, 30 Sow. Pr., 13.</p>

<p>Abkest.—Motion to Vacate.—Sufficiency of Evidence.</p> <p>Where an order of arrest is founded upon the nature of the cause of action itself, and not upon extrinsic facts, the court will not, in general, vacate the order, upon affidavits denying the cause of action.</p> <p>If this can be done in any case, it can only be where all doubt is removed, and the state of factp shown would warrant the judge in directing a non-suit at the trial</p> <p>In an action for criminal conversation, the court will not vacate an order of arrest upon the ground that the guilty acts charged against the defendant are alleged to have been committed under circumstances rendering the charge highly improbable, and that they are denied by the defendant.</p>

<p>Appeal from a judgment of the supreme court.</p> <p>The facts involved in the case are stated in the opinion of Judge Davies.</p>

This action was brought by George W. Markham against William B. Jaudon, a broker, to recover damages for an alleged unlawful sale of shares of railroad stock which had been bought by the defendant upon orders given by the plaintiff. The case was tried at the circuit before Hon, H. A. Foster and a jury.

This action was brought by Joseph Howard against John W. Freeman, and others. It now came up upon an appeal from an order at special term, denying a motion made by the defendants to set aside a default and inquest which had been taken against them at special term. At the trial term five different applications to put off the trial of the cause were made. The first of these applications was on June 5th, and the direction made by the judge on that was made June 6th.

Habeas corpus, to discharge a party committed for a contempt in disobeying an injunction order for his examination as .a judgment debtor. On March 8, 1856, an injunction order, in the usual form, -was granted, requiring the defendant Isaac R. Janes to appear before H. A. Kelson, county judge of Dutchess county, on March 11 next. He did not appear, he collected a debt due ■him, and after March 11 sold a note he held at the time of the service of the order.

Demurrer to complaint. This action was brought by W. E. Churchill and others against William Trapp, and Myron H. Ferris executor of Charlotte Herrick. The action was upon a promissory note of which the following is a copy. “Elmira, April 26th, 1854. “ $611,40. Nine months after date we promise to pay to the order of Charlotte Herrick, six hundred and eleven dollars and forty cents, at the Bank of Chemung, Elmira, N. Y., value received. “ Wm.

<p>Motion to vacate an execution against the person.</p> <p>A judgment having been obtained by Henry Lovee against Josiah Carpenter, an execution was issued thereupon, under which the defendant was arrested. The defendant having obtained an order to show cause why the execution should not be vacated, upon the hearing raised the objection that the judgment record did not show the liability of the defendant to arrest.</p>

Trial by the court. This action was brought by Marshall O. Boberts against Mark Levy, to recover damages for a breach of covenant arising out of the following facts.

Motion to dissolve an injunction. This action was brought by Cumberland G. White against John L. Brownell, president of the “ Open Board of Brokers,” and others, to procure an injunction restraining them from interfering with his privileges as a member of that board.- It appeared that the Open Board of Brokers was organized in the year 1864, by S. L. Joseph, Samuel B. Hard, and seventy-five other persons, their associates.

Motion to compel the plaintiff to receive an amended answer. The defendant in this case interposed an answer which set up new matter but did not contain a counterclaim. Before twenty days had elapsed he served an amended answer which the plaintiff refused to receive. The plaintiff now moved to compel him to receive it. Abbott Brothers for the motion. By section 172 any pleading may be once amended of course, before the period for answerwig it expires.

Motion to strike out a part of defendants’ answer. This action was brought by Samuel Townsend against G. W. and N. C. Platt. It is the action in which the decision upon a motion to require plaintiff to receive an amended answer, reported Ante 323, was made.

Motion to strike out an answer as frivolous. This action was brought by Thomas B. Morrow, administrator of George Morrow, against Peter Cougan. The substance of the pleadings is stated in the opinion.

Motion to vacate a judgment for irregularity. This action was brought by John H. Bergman against Anna M. Howell. Defendant served an answer, duly verified and in due season, setting up that defendant was a married woman and therefore not liable upon the cause of action set forth. Plaintiff thereupon entered judgment, which defendant now moved to set aside.

<p>Commitment fob Vagrancy.—Filing of Record.—Powers of Alderman.</p> <p>The record of a conviction for vagrancy in the city of New York, should be filed-</p> <p>•with the clerk of the court of sessions, not with the county clerk.</p> <p>An alderman of the city of New York may commit to the workhouse for vagrancy.</p>

This action was brought by George W. Coster and John E„ Andrews, against The New York & Erie Railroad Company and Daniel Drew. The complaint was, in substance, as follows. Title oe the Cause.

Motion to vacate an order of arrest The complaint in this action showed a cause of action for goods sold and delivered. On an affidavit charging fraud in contracting the debt, the plaintiff obtained an order of arrest, which the defendant now moved to vacate, on grounds which appear in the opinion.

Motion to set aside an inquest taken on a day assigned for the hearing of “ short causes.” The action was on a promissory note. The defendant Green answered, and made and filed an affidavit of merits to prevent an inquest. On the seventh day of December the plaintiff served on defendant’s attorney a notice of motion, for the eleventh, to place the cause on the special calender for the trial of short causes under the rules of the court.

Demurrer to a complaint. The action was brought by the' plaintiff, a conductor upon the New Jersey Railroad, against the defendants, proprietors of the New York Times, to recover damages for an alleged libel. . The article complained of, was an account of an accident upon the New Jersey Railroad, in which ' one Dwight was killed. Its general tenor is stated in the opinion.

The action was brought by Peter McLaren, against Martin McMartin, as the administrator ©f Daniel McMartin, Jr., upon a promissory note for $100, made by Daniel. The note was made April 19,1835, and was drawn payable one' year from date. The action was commenced September 23d, 1854; eighteen years after the maturity of the note, and seven years after the death of the maker and the appointment of the defendant as his administrator.

This action was brought by Alfred Peabody, Edward P. Flint, and George Kellogg, against Ashel Beach, Elisha Bloomer, Frederick Hudley, and Ralph Hill.

<p>Appeal from a judgment of the Supreme Court in the First District.</p> <p>The action was "brought by John B. Trevor, jr., and James B. Colgate, against John and George W. Wood, and James Cullen.</p> <p>The plaintiffs were dealers in bullion in New York, and the defendants dealers in bullion in New Orleans. In 1859 they agreed to deal with each other in the purchase and sale of dollars, and that all communications between them in reference to such transactions should be by telegraph.</p> <p>On January 30, 1860, the plaintiffs telegraphed from New York, to the defendants at New Orleans, asking at what price they would sell one hundred thousand Mexican dollars. On the 31st of the same month the defendants answered that they would deliver fifty thousand at seven and one-fourth, and on the same day the plaintiffs telegraphed from New York, to the defendants at New Orleans, as follows:</p> <p>“ To John Wood & Co.: Your offer fifty thousand Mexicans at seven and one-quarter accepted; send more, if you can.</p> <p>“ Trevor & Colgate.”</p> <p>At the same time the plaintiffs sent by mail to the defendants, a letter acknowledging the receipt of the defendant’s telegram, and copying the plaintiff’s telegraphic answer., On the same day the defendants had also sent by mail a letter to the plaintiffs copying defendants’ telegram of that date. On the next day, February 1, 1860, the plaintiffs again telegraphed to the respondents, as follows:</p> <p>“ To John Wood & Co.: Accepted by telegraph yesterday your offer for fifty thousand Mexicans; send as many more, same price. Beply. “ Trevor & Colgate.”</p> <p>This telegram, as well as that of 31st of January, from the plaintiffs, did not reach the defendants until 10 A.M., on February 4,1860, in consequence of some derangement in a part of the line used by the plaintiffs, but which was not known to the plaintiffs until February 4, when the telegraph company reported the line down.</p> <p>On February 3, the defendants telegraphed to the plaintiffs as follows: “ No answer to our despatch—dollars are sold and on the same day they wrote by mail to the same effect. The plaintiffs received this despatch on the same day, and answered it on the same day, as follows: “ To John Wood & Co. :• Your offer was accepted on receiptand again, the next day: “ The dollars must come, or we will hold you responsible. Beply. Trevor & Colgateand again on February 4, insisting on the dollars being sent “ by this or next steamer,” and saying: “ Don’t fail to send the dollars at any price.” On the same February 4, the defendants telegraphed to the plaintiffs: “ No dollars to be had. We may ship by steamer, twelfth, as you proposed, if we have them.”</p> <p>No dollars were sent, and this action was brought to recover damages for the alleged breach of contract in not delivering them.</p> <p>The referee found for plaintiff $219 33.</p> <p>Judgment entered upon his report was revised by the court at general term; and from the judgment of reversal the plaintiffs now appealed.</p>

The cause was tried before Mr. Henry Hogeboom, as referee. On the trial, June 25, 1866, there was testimony introduced which showed that the note was usurious. The reference was adjourned to July 30, when further testimony was introduced by the plaintiffs. At the close of the testimony the defendant’s attorney moved to amend his answer, so as to let in the defence of usury, and asked that the answer should be conformed to the evidence, so that this defence would be available.

Demurrer to complaint. The action was brought by Cornelius Vanderbilt and others, as stockholders of the Accessory Transit Company, against C. K. Garrison, formerly agent of the Company. The nature of the complaint appears from the opinion. The grounds of the demurrer were :— 1. That the plaintiffs had not a right to maintain the action. 2.

This action was brought by Davis and Riley against Duffie, Conklin, Van Burén and others; the suit being in the nature of a bill in equity to redeem mortgaged premises. The facts upon which the motion was grounded were these. Some years ago Davis, being then the owner of real estate, mortgaged it to Duffie. Davis was afterwards convicted of an offence punishable by imprisonment in the State prison, and was imprisoned accordingly.

This action was brought by Stilwell and Montross, against Staples, to recover the slim of $656.76, and. interest, for manufacturing articles of clothing, and for materials and trimmings furnished. The answer denied that the labor and materials were worth so much as was alleged in the complaint.

Writ of error to the Supreme Courtjm the First District. The facts involved in this case are fully stated in the opinion.

This motion was brought by Rowland S. Malloy against Reuben R. Wood and Constant H. Brown.

Motion to set aside an inquest taken before a sheriff’s jury. This action was brought to recover damages for ejecting plaintiff’s servants from his jewelry store, closing it up, and pasting a bill on it containing the words “ To Let.” Defendant. failed to answer, and the court ordered that a writ of inquiry issue to the sheriff to assess the plaintiff’s damages. The writ was executed. The defendant appeared and examined witnesses.

The judgment in this case was vacated at special term, on the ground that the statement of indebtedness was insufficient. The moving party was a creditor of the debtor upon the judgment.

This action was brought against the defendant and others, composing the Metropolitan Board of Excise. The facts involved in the present appeal are stated in the opinion.

This action was brought by Cyrus W. Field against Darius B. Holbrook, A. Holbrook, Peter Cooper, Moses Taylor, Marshall O. Roberts, and Chandler White. The facts upon which the present motion was based, are fully stated in the opinion.

The action was brought by James H. Case against Hiram A. Hotchkiss, to recover on a bill for attorneys services. The facts involved are stated in the opinion.

Demurrer to complaint. The action was to recover specific personal property; and the ground of objection to the complaint was that it did not show a demand made before suit, and refusal to deliver the property.

<p>Death op Dependant.—Continuance op Action.</p> <p>Where an action is commenced by service of process upon one only of several defendants jointly indebted, and the defendant served dies before judgment, and before the others are brought in; an order to continue the action against the personal representative of the deceased defendant is not proper. The action should be continued against the other defendants.</p>

This action was originally brought by Ford against David and Turner only, as defendants. They answered; and their answers disclosed a state of facts, existing when the action was commenced, which rendered it proper, in the plaintiff’s view of his rights, that he should join two other defendants, Townsend and Johnson, and which entitled him to relief against them. An order was granted, authorizing the plaintiff to make these persons parties by a supplemental complaint.

Motion to set aside a summons issued under section 375 of ,tke Code of Procedure. This action was commenced in the New York Marine Court, by service of process upon one only of several defendants jointly indebted.

Motion by an heir for leave to file a supplementary complaint, and continue a suit brought by her ancestor; also for leave to amend the original complaint. This action was commenced in May, 1852, to recover the possession of a lot of land in Brooklyn. The defendants answered. In March, 1854, plaintiff died, intestate, and without having disposed of the land, or of the action pending in respect to it. He left him surviving his widow, and a granddaughter his only heir-at-law.

December, 1867. Motion for repayment of money deposited with the sheriff in lieu of bail. This action was brought by Isaac Hermann-against Newman Aaronson. An order of arrest was issued, fixing the amount of bail at $2,500, and upon this order the defendant was arrested.

<p>Motion to dissolve an injunction.</p>

Motion to compel a purchaser at a foreclosure sale, to complete his purchase. It appeared that the complaint in this case and a notice of the pendency of the action were filed in the county clerk's office on May 10, 1856. The summons was not served on any one of the defendants till May 21,1856. It was admitted that no change took place in the title, nor did any encumbrances attach, during the interval.

On October 29,1866, A. Walters, a justice of the peace of the Fifth District Court for the city of Brooklyn in the county of Kings, issued a summons in a civil action, at the suit of Frederick Schwartz against John Monday, requiring Monday to appear before said justice, at his court room, on the 6th day of November, 1866, at 8-| o’clock in the forenoon, to answer the complaint of Schwartz, &c. On the return day of the summons the justice proceeded and called the case, the…

Applications by defendants arrested upon indictments, to be let to bail. The defendants were John Dixon and Joseph Jackson. Six indictments were found against them on September 18, 1856, upon the testimony of Jane Muldoon and Catharine Sullivan, two emigrant girls. Three of the indictments were against Dixon; one for an assault with intent to commit a rape upon Catharine Sullivan, one for a like assault upon Jane Muldoon, and one for an abduction of Catharine Sullivan.

Motion to vacate a judgment. This action was commenced by attachment October 3, 1867. Publication of the summons was commenced November 4, 1867; and the last publication was made December 9,1867. On January 4th, 1868, judgment was entered by the plaintiff’s attorneys for want of an answer. This judgment the defendants now moved to set aside ; the motion being argued chiefly on the ground of irregularity in that the judgment was entered before the time to answer had expired.

The litigation was long continued and gave rise to many adjudications in thé courts. The facts involved in the present appeal, are stated in the opinion»

Motions, in two actions, for an injunction and the appointment of a receiver. The first of these actions was brought by one Bishop alone, against R. Halsey, U. H. and C. Belden, and W. H. and J. W. Harbeck. The second action was by Bishop and Stewart, against the defendants above named and Charles B. Huntington. The suit by Bishop as sole plaintiff, was brought to set aside an assignment made by Charles B. Huntington on October 10, 1856, to R. Halsey, of all his property.

Tn August, 1865, Tack, Brothers & Go., residing and doing business in the city of Philadelphia, delivered to the defendants at then office in that city, a telegraphic dispatch, addressed to the plaintiff at the city of New York, directing him to contract to sell for them- five hundred (500) barrels of petroleum, at fifty one and a half cents a gallon, deliverable from September first to September fifteenth; sellers option; and requested an immediate reply.

■ Trial by the court without a jury. This was an action in the nature of replevin, brought by Robert H. F. Davenport against Michael Doady. The action was to recover the brig S. D. Horton, which had been levied upon by the defendant, by virtue of an execution issued out of the New York Marine Court.

This was a partition suit brought by Alfred Wagstaff and Sarah P. his wife against William Lowerre and twenty-five others. The complaint sought a partition of the real and personal estate whereof one David Wagstaff, deceased, died seized; and a settlement of plaintiff’s accounts as executor and trustee.

This action was brought to rescind a sale of stock in the Oswego Starch Company, made by the defendant to the plaintiff, in February, 1857, and to recover $1,500, the price paid therefor, and certain payments made by the plaintiff as a stockholder.

This action was brought by Orsamus Eaton, Uri Gilbert and Edward O. Eaton, against William H. Aspinwall. The cause having been at issue upon the complaint and answer, an order of reference was made to a referee to hear and determine the whole action.

<p>Motion to vacate an attachment.</p>

This action was brought by Harriet E. Christy, as administratrix, against James S. Libby. The defendant demurred to the plaintiff’s complaint. The demurrer was overruled at special term, and an order entered giving the defendant twenty days in which to answer on payment of costs. The defendant appealed to the general term from the order overruling the demurrer, within the twenty days provided for in the order.

<p>Motion to discharge a defendant from custody under an attachment.</p>

Demurrer to complaint The action was brought by husband against wife to have a marriage declared void The complaint averred that the defendant was married in Massachusetts, in 1848, to one Pomeroy. In 1855, Pomeroy, with intent to evade the laws of Massachusetts, went to Chicago to procure a divorce, for causes which were not recognized by the laws of Massachusetts, and commenced a suit for that purpose.

This was an action for slander, brought by Jeremiah Snell against Seffrenus Snell. The slanderous words complained of, amounted to a charge against the plaintiff of having stolen from the surrogate’s office the will of one Jacob P. Snell. The complaint contained seven different counts, and claimed special damages for injury to plaintiff’s business as a merchant. Five of the counts were for words spoken in the German language; two were for words in English.

<p>Compelling Affidavit.—Proper Procedure.</p> <p>A party to an action, as well as any other witness, may be compelled to make an affidavit, under subdivision 7 of section 401 of the Code df Procedure.</p> <p>A “fishing ” examination is not allowable, under that section. An order for the examination can only be made upon proof that the affidavit of the wit. ness is “necessary;” and to allege this, involves knowledge in advance ot the facts to which the witness will testify.</p> <p>The proper coarse, when an affidavit is desired, is, ordinarily, to draft an affidavit and submit it to the witness to be verified, before applying for an order.</p> <p>But the objection that no affidavit has been prepared and submitted, may be waived: and it is waived, if, when asked to make affidavit, the witness does not require a draft to be submitted, but makes a general refusal to testify.</p> <p>After a witness has refused to make affidavit, and an examination has been ordered, the court should not arrest it upon the ground that an affidavit has subsequently been tendered, unless it very clearly appears that such affidavit is full and frank.</p> <p>Bo examination of books and papers is allowable, in the proceeding authorized by section 401 of the Code, subdivision 7.</p>

This action was brought by George R. J. Bowdoin, Jeremiah Larocque, Samuel L. M. Barlow and Joseph Larocque, against Thomas J. Coleman and James McGregor, jr. The complaint set forth that on June 3, 1850, at the city of New York, the defendants executed their certain undertaking in a certain action in the Superior Court, wherein John H. Keyser was plaintiff, and William H. Harbeck, John H. Harbeck, Samuel Ward, Rodman M. Price and Louis Dietz were defendants, in the…

The decision upon a motion to dismiss this appeal rendered at the March term (1867) of the court, is reported Ante 147; where the facts involved will be found stated in detail.

<p>Motion for an extra allowance of costs.</p> <p>The facts fully appear in the opinion of the court.</p>

<p>Non-residence.—Attachment.—Irregularity.</p> <p>It is good ground for vacating an attachment, issued against an alleged nonresident and absconding defendant, that his absence from his place of abode was open and notorious ; that he made no efforts to conceal the same; that his conduct was not designed to place any one on a false scent or to evade service of process, and that he omitted nothing which he was legally bound to do, to enable the plaintiff to find him. The mere failure of a plaintiff to learn the whereabouts of a defendant, affords no evidence of culpable conduct on his part.</p> <p>The rule that a motion to discharge an attachment, if founded upon an irregularity, must be made at the earliest opportunity, or the delay excused, does not apply to motions for relief affecting the substantial rights of the parties.</p>

Motion to open a judgment entered upon failure to answer and to allow defendant to answer. This action was brought by Abijah Mann, Jr., and Charles A. Mann against David Provost. It was an action to compel the determination of a claim made by defendant to certain real estate owned and possessed by the plaintiffs, at Green Point, Kings County.

<p>Motion to confirm a report of commissioners of estimate and assessment.</p> <p>By an act of the legislature, passed April 9, 1867, the towns of Morrisania and West Farms, in Westchester County, were authorized to construct a highway in said towns, to be called the Southern Boulevard. Commissioners were appointed by the act to lay out the highway, and, to this end, were empowered to convert the lands, and tenements necessary for the purposes of the act. The damages awarded for the lands so taken were directed to be assessed upon the strips of land fronting to the depth of five hundred feet on each side of the road respectively, the payments of said awards to be apportioned by commissioners of estimate and assessment, appointed by the commissioners of the act. It was further provided that the report of the commissioners of estimate should be presented to the court for confirmation. Upon a motion to confirm such report, the questions discussed in the opinion arose; Mr. John B. Haskin, as a tax payer, opposing the motion,</p>

Demurrer to portions of an answer, and motion to strike out other portions as irrelevant and redundant. This action was brought by the People upon the relation of Henry Demarest, against George Laws, John Bennett, and John Montgomery. The action was upon an administration bond, given in 1852 by the three defendants, upon the appointment of George Laws to be administrator of the estate of David E. Mosier.

<p>Appeal from an order at special term; entered pursuant to the following opinion.</p>

Application on behalf of infant defendants, to set aside a sale of mortgaged premises, and for a re-sale. The action was brought against Richard H. Hinman and his wife, and others, to foreclose a mortgage given to the plaintiffs by Thomas Lewis and wife, dated June 20,1850, to secure the payment of $19,800 in one year from date.

Demurrer to- an amended complaint. This action was brought by Jacob Carpenter against Sylvavanus B. Stilwell.

Motion by defendant, for judgment, for non-prosecution of the action. In this action the plaintiff’s attorney drew and served a summons for relief, giving the plaintiff’s name as Weigan. He was afterwards informed by his client that his real name was Eischer. He thereupon procured an order of discontinuance, granted October 9, 1856, and served on the evening of the same day; but without tender of costs.

Motion to strike out certain parts of a complaint, as irrelevant and redundant. The action was for assault and battery. The portions of the complaint objected to were statements descriptive of the circumstances under which the assault was committed. We give only so much of the points and opinion as relate to the rule of the Common Pleas in respect to striking out irrelevant matter. I. It does not appear that defendant is aggrieved by the matter objected to.

Order to show cause why an attachment should not issue. Frederick J. Robinson, a judgment debtor, having been examined upon proceedings supplementary to execution, a receiver was appointed of all his property, &c. The receiver now moved for an attachment against Robinson, for contempt in refusing to deliver up to the receiver certain personal property in his possession. The property consisted, in part, of:— Nineteen medical works.

Motions to strike out a reply; and to settle issues for jury trial. This action was brought by the corporation of the City of New York, to annul a lease of buildings in Nassau Street, leased by the defendant to the city for public offices; upom the ground that the defendant procured the passage of resolu-! tions of the aldermen and councilmen, authorizing the lease by • fraud.

This action was brought by Ann S. Weitzel administratrix of William Weitzel, against Peter Schultz. Judgment against defendant was entered by default, but on his moving to open his default and be let in to defend, an order was made that he be permitted to do so, but that the judgment stand as security. The cause was thereupon tried before a referee, who reported in favor of the plaintiff for the amount for which judgment had been entered.

Motion to continue a temporary injunction. This action arose upon the following facts : In July, 1866, the governments of Peru and Chili issued conjointly their bonds of $500 and $1,000 each, amounting in the aggregate to $2,200,000.

<p>Order to show cause why plaintiff should not file security for costs, and why a stay of proceedings should not be granted.</p> <p>For the facts out of which this action arose, see 11 Ante, 437.* The defendant now obtained an order to show cause “why the present revolutionary government of Mexico should not file security for costs herein in such sum as the court shall deem sufficient, and such further security as may under all the circumstances be just, to abide the event; also why the attorney of the plaintiff should not produce his authority to appear and bind the present revolutionary government herein. Also why all proceedings should not stay for some reasonable period, or generally and indefinitely, until all restraint is removed by the plaintiff from the witnesses named in the affidavit annexed, and from the free action of the defendant and his commissioners, agents, &c., in the premises in procuring the testimony of such witnesses, and from the free and undisturbed access to the archives of said late government, and to his right to the possession of true copies of such as he may require under the State or national seal of said republic.” Also for such other order as might be proper.</p>

<p>Motion to discharge a defendant from arrest.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>This was an action by Stephen Lutz and others against Joseph Ey, to foreclose a mechanics’ lien.</p>

<p>Appeal from a judgment of the supreme court.</p> <p>The facts involved in the present appeal are stated in the opinion.</p>

Demurrer to complaint. This action was brought in the Superior Court of the city of New York, by Jacob Bretz against the city, to recover damages for injuries sustained in being thrown from a carriage in the Eighth avenue in consequence of that street being out of repair.

<p>Action fob Divorce.—Trial by Jury.—Framing of Issues.</p> <p>In an action for a divorce on the ground of adulter)', in which issues are raised by the pleadings themselves, it is now not necessary to frame issues for jury trial; but the issues joined by the pleadings may be tried.</p> <p>Since the amendment in 1852, of section 253 of the Code, section 72,—which provides that “ where the power now exists to order a feigned issue, &c., an order for the trial may be made,” &c.,—can have no application to an action for divorce for adultery, in which an issue of fact is raised by the pleadings.</p>