Volume 3 — Daly's New York Common Pleas Reports

<p>- By the terms of a deed to the plaintiff of a pew in the defendant’s church edifice, it was conditioned, among other things, that the grantee should pay annually a sum equal to ten per cent, of the original appraised value of the pew (amounting to §80), and whatever else should be further assessed thereon, and provision was made for a forfeiture and sale of the pew in case of non-payment of such assessments. The defendant laid assessments on each pew, for the years 1861 and 1862, of a sum equal to fifteen per cent, of their original appraised value, for each year. The plaintiff refused to pay the assessments on his pew, and brought suit to restrain defendant from selling the pew for non-payment.</p> <p>Held, That in laying an assessment of fifteen per cent., instead of ten per cent., the defendants violated no contract with the plaintiff, and a court of equity will not on that ground interfere to restrain a forfeiture and sale- of the pew.</p> <p>Held further, That the plaintiff, in asking a court of equity to interfere by injunction in such a case, should show either payment or offer of payment of so much of the assessment admitted by him to be duly laid.</p> <p>It seems, however, that, even in case of payment or offer of payment, the court will not interfere, because the forfeiture and sale threatened by the defendant, if unlawful, could not divest the plaintiff of his property in the pew.</p> <p>A pew owner or holder has no legal interest in the church edifice, or in the land upon which it stands, or in the proceeds of the sale thereof. All that he has olean acquire is the right to occupy the pew during divine service, which is a qualified interest, and one necessarily limited in point of time, for if the building is destroyed or taken down, the right is gone.</p> <p>Hence it is no ground for an injunction against the sale of a pew by the trustees for non-payment of assessments, that the plaintiff will by such sale be deprived of his proportion of the proceeds of the sale of the church edifice at the expiration of the lease of the land upon which it stands.</p> <p>Forfeitures are not favored in equity, and where the meaning is doubtful, or it requires a strained or very technical construction of language to make out a forfeiture, it will not, in equity, be inferred that a forfeiture was intended.</p> <p>An appellate tribunal will not reverse a decree upon a point which was not raised or considered in the court below, unless there was a total want of jurisdiction in the court to grant the relief sought, or to give the judgment.</p> <p>The books and minutes of a corporation are, as a general rule, evidence of the acts and proceedings of the corporate body, and if there is nothing to render them suspicious, they may be referred to, in order to show the regularity and legality of its proceedings. .</p> <p>Before the Code a motion for nonsuit brought up the question whether the proof was sufficient to support the declaration, and if the plaintiff proved his case as laid, the motion would be denied, because the sufficiency of the declaration could be tested only by demurrer, or by a motion in arrest of judgment. But since the Code, the defendant does not waive the objection that the complaint does not state facts sufficient to constitute a cause of action by omitting to raise it by answer or by a demurrer. He may take the objection at the trial by a motion for nonsuit; but omitting to take it there, he cannot raise it upon appeal.</p>

Appeal by the defendant from a judgment entered on the verdict of a jury at trial term. The action was brought to recover a difference under a gold contract. The complaint alleges that the plaintiff, at defendant’s request, bought, for account of defendant, $10,000 American gold coin, and received from the defendant $1,000 currency, as a margin.

<p>Appeal by the defendant from a judgment of the court below.</p> <p>The facts are fully stated in the opinion of the court.</p>

Appeal by the defendant from a judgment of the Eighth Judicial District Court. This action was brought to. recover $15, being the sum of $5 a week for three weeks, alleged to be due the plaintiff as a member of the defendant’s society, as benefits during sickness, under the following by-law: “ Sec. 4.

This action was brought by the plaintiff, as general assignee of George Scheuch, an insolvent under the act of 1860, to recover certain property, which had been conveyed to the defendants by a bill of sale. On the 3d of April, 1865, George Scheuch, a merchant, doing business at No. 1 Park place, was indebted to various persons for borrowed money and goods sold.

Appeal by the plaintiff from a judgment at special term on demurrer to the plaintiff’s complaint.

Appeal by the defendants from an order of Daly, Y. J., at Special Term, granting judgment on the answer as frivolous. The action was brought on the 28th day of September, 1868, to recover the proceeds of certain merchandise named in the complaint, consigned by the plaintiff to the defendants in the month of May, 1868, to be sold by the defendants.

Appeal by the defendant from a judgment of the general term of the Marine Court. The action was brought for false imprisonment.

Appeal by the plaintiffs from a judgment of the Fifth District Court. This ’was an action for goods sold and delivered, and the answer was general denial, and accord and satisfaction. The facts sufficiently appear in the opinion.

Appeal by the defendants from a judgment of the First District Court. This action was brought to recover possession of a certain chronometer. The chronometer in question was purchased by the defendants in 1862, and in 1864 they hired it to the master of the brig Hayward, at $6 per month, to be returned at the -expiration of the voyage, or within twelve months.

Appeal by the plaintiff from an order made at Special Term dissolving a temporary injunction. The action was brought by the plaintiff against the defendants for an injunction against an alleged violation of trade-mark.

The action was brought for an injunction to restrain defendant from removing a sewer. After issue was joined, the action was referred to Hon. Murray Hoffman, as sole referee, who found the facts, as follows: That one Henry Volkening was, in the year 1864, owner of two certain lots or parcels of ground, with dwelling-houses upon each of them, known as Humbers 83 and 85 West Forty-sixth street, in the city of New York.

■ Appeal by the defendants from, a judgment of trial term. The action was brought to recover damages for injuries sustained by the plaintiff under the following circumstances: The plaintiff occupied certain premises on Seventy-fifth street as a dwelling-house and gardens, which were situated below the grade of the adjoining streets. A stream of water ran near the premises and through a culvert constructed under Second avenhe.

Appeal by the plaintiffs from an order made at Special Term by Barrett, J., setting aside an order appointing a referee to take the affidavits' of two of the defendants to be used upon a motion.

Appeal by the plaintiff from a judgment dimissing the complaint, rendered on the report of John T. Hoffman, Esq., referee. By the referee’s findings of fact, it appears that plaintiff was the owner of Ho. 8 East Forty-first street, the premises described in the complaint, in her own right.

Appeal by the defendant, Baxter, from a judgment of the general term of the Marine Court, affirming a judgment of that court at trial term. The action was brought against the defendant, Baxter, “ and owners of ship Ann Gray,” for seaman’s wages. The plaintiff shipped on board the “ Ann Gray ” at Genoa, Italy, for a voyage, which had not terminated at the time the action was brought.

Appeal by the defendant from a judgment entered on a verdict of a jury at trial term. This action was brought to recover damages alleged to have accrued to the plaintiff by reason of the false representation of the defendant, that he had the power to give the plaintiff a lease of a certain drug store, and that he would do so.

Appeal by the defendants from a judgment entered on a verdict. The action was for goods sold and delivered. The facts sufficiently appear, in the opinion of the court.

Appeal by the defendants from a judgment of the general term of the Marine Court, affirming a judgment rendered by that court at trial term without a jiuy.

<p>Appeal by one of the defendants from a judgment of the general term of the Marine Court affirming a judgment entered on a verdict.</p> <p>The action was brought by the plaintiff against the Hudson River Railroad Company, impleaded with The Central Park, North and East River Railroad Company, to recover damages alleged to have been sustained by reason of a collision between an engine of the appellants and the street car in which the-plaintiff was a passenger at the time. Issue was joined in the action on the 19th November, 1866, and "an adjournment' had, by consent, neither party demanding a jury.</p> <p>Afterwards, on the 24th of December, 1866, the cause being reached in its order and called, and the parties having answered ready, the justice holding the trial term, on his own motion, decided that the cause should be tried by a jury, and for that purpose ordered an adjournment, the appellants objecting.</p> <p>The cause being tried with a jury, a verdict was rendered against both defendants for $500, and the defendants, the Hudson Bailroad Company, appeal from the judgment as affirmed by the general term of the Marine Court to this court.</p> <p>The adjournment of the cause on the motion of the justice on the 24th of December, 1866, and his ordering it to be tried by a jury, was irregular and erroneous, and deprived the court of jurisdiction. A justice of the Marine Court has no power to adjourn a cause on his own motion except upon the return day. By such adjournment he loses jurisdiction (Bailey v. Delaplaine, 1 Sandf. 11; Wright v. McCleave, 3 E. D. Smith, 316). Neither party having demanded a jury after joining of issue and before adjournment, a jury trial could not be had except by consent of parties (Dempsey v. Paige, 4 E. D. Smith, 218). The subsequent appearance of the appellants and proceeding to trial upon the merits, did not re-invest the court with jurisdiction, nor waive the appellants’ rights secured to them by objection taken at the time 'of the proceedings complained of (Loomis v. Bowers, 22 How. Pr. 364). Appearing and participating in proceedings over which a court or officer has not jurisdiction, does not prevent a party from assailing them for want of it (Grocers' National Bank v. Clark, 31 How. Pr. 123).</p>

<p>Where a statute enacts, for the purpose of securing a more effectual compliance with its requirements in respect to the licensing of certain occupations, that no one shall engage in or carry on any such occupation, until he shall have obtained a license as provided by the statute, it is an express prohibition without more particular words:</p> <p>Held, therefore, that a lawyer, who has not obtained a license, as required by the Internal Revenue act of the United States Congress, cannot recover for professional services rendered since the passage of the act, and a contract made by him to render such services is absolutely void.</p>

Appeal, by the defendant Rauhr, from a judgment of the-general term of the Marine Court. The facts sufficiently appear in the opinion of the court.

Appeal by the defendant from a judgment at a Special Term of this court in an action tried by Daly, F. J., without a jury. The action was brought upon a draft drawn and dated in London, England, upon the defendant, for fifty pounds sterling, and was directed to the defendant at the, city of New York, and accepted by him.

<p>The defendant had employed the plaintiff, a real estate broker, to effect a sale of his house, and had also employed another broker to the same end. The latter broker posted a bill on the premises, and a purchaser being attracted thereby, called at the house, and was informed by the tenant that the plaintiff was rent collector. The purchaser then called on the plaintiff, who informed him of the rent and price, and sent a clerk with him to show the house. The next day, the purchaser, following the direction on the bill, went to the other broker therein named, by whom he was introduced to the owner, and with whom the negotiations took place, which resulted in a sale. Held, that the latter broker, and not the plaintiff, had earned a commission for effecting the sale.</p>

Appeal by the defendant from a judgment of the general term of the Marine Court affirming a judgment entered on the verdict of a jury at trial term. The action was brought to recover freight on 100 casks of wine, which the plaintiff agreed to carry from Bordeaux to New Y ork.

<p>Appeal from a judgment of the Marine Court of the city of New York, entered on a verdict directed by the court.</p> <p>The complaint alleged, “ that on or about the 31st day of May, 1866, the plaintiff and the defendant entered into an agreement that the plaintiff should buy and pay for one hundred shares of stock, ‘ commonly called Old Southern,’ and hold the same for thirty days. The defendant agreed, in consideration thereof, to allow the plaintiff one-half of the net profits, if any, and to bear all the loss, if any.”</p> <p>The complaint averred, “ that the plaintiff had performed the said agreement on his part, and that the loss amounted to $346 at the termination of the contract,” for which sum judgment was demanded. It appeared on the trial that the stock had not been sold at the end of thirty days, nor till some time afterwards; but evidence of the price it then brought was ruled out by the court.</p> <p>It also appeared that the plaintiff, in July, 1866, had rendered a bill for the loss, as being the difference between the purchase price on May 30th, and the market value thirty days afterwards, which the defendant said he would settle.</p> <p>After the close of the testimony, the justice directed the jury to find a verdict for the plaintiff for the amount claimed. From the judgment thereupon entered, as affirmed by the general term of the Marine Court, the defendant appealed to this court.</p>

Appeal by the defendants from a judgment of the general .term of the Marine Court, affirming a judgment of that court entered on a verdict.

<p>Appeal by the defendants from a judgment entered on the report of a referee.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Appeal by the defendants from a judgment of the Marine Court in an action tried without a jury.

Appeal by the defendants from a judgment entered on a verdict at trial term. The action was brought to recover damages sustained' by reason of the defendant’s negligence. The defendants, as owners of Pier No. 46, North river, in March, 1860, granted the wharfage which becomes due for the use of said pier to one Daniel Darrow, for the term of five years, from May 1, 1860. Darrow covenanted, in the lease or grant, to keep the pier in good repair at his own cost.

<p>In an action for damages for fraud and conspiracy, the complaint need not set out in detail the various facts and circumstances relied on to establish the complicity of the defendants. It is sufficient to aver the combination, its object and its accomplishment, to the injury of the plaintiff.</p> <p>Where a party stipulates, as a condition of opening a default, that an affidavit may be read in evidence at the trial, in case of the absence of the affiant: Held, that in case of such absence, the affidavit was properly read as evidence on the trial.</p> <p>It is not error for a judge to charge the jury, in an action for conspiracy, that they may find for the plaintiffs, against the defendants, on the evidence of an alleged accomplice, even though unsupported and uncorroborated, at the same time properly instructing them as to the weight and value of such evidence, and the-caution to be exercised in considering it.</p> <p>It is not error for a judge to criticise, in his charge, the testimony of a witness, or to give his opinion as to the proper interpretation, construction, and effect of the language of the witness, unless it appears that the expression of the judge’s' opinion prejudiced the objecting party.</p> <p>It is for the jury, and not for the court, to determine whether a particular witness shall be believed. And the jury having found a verdict, under proper instructions, on evidence in some respects conflicting, the court on appeal will not disturb it.</p>

<p>A corporation is “a party” within the meaning of section 391 of the Code of" Procedure, providing for the examination of a party before trial, and the president of a corporation-defendant, may be examined under that section of the Code. That provision of the Code was designed as a substitute for the bill of discovery under oath in aid of the prosecution or defense of another action under the old practice.</p>

<p>Appeal from a judgment of the Marine Court entered on a verdict.</p> <p>The action was brought to recover for the loss of certain baggage claimed to have been placed by the plaintiff (a steerage passenger) on board the steamship Manhattan, to be conveyed from Liverpool to the city of New York. The complaint alleged that the defendants were common carriers, and in consideration of the sum of four pounds sterling, “ promised and agreed to transport the plaintiff and her baggage from Liverpool to the city of New York.” It appeared on the trial that on the arrival of the vessel at New York, the box, containing the baggage claimed, was last seen by the plaintiff while being taken from one side of the ship to the other to go over into the tender or barge, and the plaintiff received a check for her baggage, marked “ Castle Garden D. 576.” The next day the plaintiff applied-for her baggage, at Castle Garden, and also to the defendants, but never received it. The barge on which the baggage was placed was licensed by the Commissioners of Emigration, as required by statute (Laws of 1848, ch. 218; Laws of 1857, ch. 579). The defendants, ship-owners, were by law obliged to take and pay for only such barges as the Commissioners should approve. At the close of the evidence, the justice charged the jury, among .other things, “ that the defendants are liable until the baggage is delivered either to the passenger or at the dock and wharf in the city of Mew York, designated by the Commissioners of Emigration. The licensing of this vessel or barge does not make a delivery to it a delivery to the Commissioners. Anything that is useful to the passenger—watch or jewelry—■ may be allowed for, if it was actually in the trunk.”</p>

<p>Motion by the defendants to vacate a judgment taken for want of an answer and for leave to serve an answer.</p> <p>The action was brought on two promissory notes made by the defendants to the Washington Marine Insurance Company, and by that company endorsed to the plaintiff for value. The defendants alleged that the notes were given to said company by them for premiums due it on certain policies of Insurance issued to the defendants by the company at a time when the company was utterly insolvent and unable to pay its debts; that the notes in suit with others had been deposited with the plaintiffs by the company as security for a loan made to the latter; and that the plaintiffs have collected the amount of said loan, except about $2,400.</p> <p>The motion was opposed on grounds stated in the opinion of the court.</p>

<p>Motion to dismiss supplementary proceedings. Judgment was obtained in the Fifth District Court for $72.50, and execution issued thereon to a city marshal, who returned the execution wholly unsatisfied. These facts appearing by affidavit, the court granted an order requiring the defendant to appear before a referee, and be examined under section 292 of the Code. The defendant moved to dismiss the proceedings.</p>

Motion by defendants for leave to inspect the plaintiffs* books. The action was brought to restrain the infringement of a trade mark. The plaintiffs claimed to establish their right to the trade mark by reason of priority of appropriation and of the reputation acquired by sales of their goods thereunder.

<p>'"The court will restrain, by injunction, the execution of a void warrant issued i'ti summary proceedings for the .recovery of land, it appearing that the party in whose favor the warrant was issued was irresponsible, and the' plaintiff had, therefore, no adequate remedy at law, in case of the execution of such warrant.</p>

Tbial before the court without a jury. The action was brought by the plaintiffs to recover $2,996, the difference between the awards for certain lots taken in the opening of Seventy-fourth street, and the assessments for benefit to adjoining lands arising from the opening of the street.

This was an action to recover possession of personal property on which the plaintiff had made a requisition on the sheriff to take possession. A claim was made upon the sheriff under § 216 of the Code, in the name of a third person, as owner of the property.

Motion to continue an injunction. The action was brought to set aside a chattel mortgage given by the plaintiff and her husband to the defendants in settlement of an action brought by the defendant, Diederich, against the plaintiff’s husband, to procure the discharge of an order of arrest issued against him in that action.

This action was brought to obtain judgment that two of three liens on the property of the plaintiff he removed and discharged of record.

• Motion for judgment on demurrer to the complaint. The complaint alleged that the defendant was employed as a claim agent by one Griffiths, a gunner in the United States Navy, to collect certain prize moneys from the government; that said Griffiths had assigned all his rights in the moneys to be collected to the plaintiff, and had given her an order on the defendant as follows: “ Please pay to Mrs. Caroline M. Danklessen, of 78 James street, my prize money due me as…

The action was brought for the partition of real property. The defendant Mary Ann Goodwin was the owner of a life estate in the premises sought to be partitioned, and was in the actual possession “thereof. The defendant James Goodwin was seized of an undivided five-sixths part of said premises in fee, subject to the life estate of Mary Ann Goodwin.

<p>A bailee for hire of a chattel is bound to use ordinary care in its use, and if it is injured while in his possession, he must show how the injury happened, or if unable to do that, must show that he exercised such a degree of care in respect to the chattel as to overcome any presumption that the injury occurred by reason of the want of ordinary care and diligence on his part.</p> <p>If, in the case of a bailment, the evidence warrants the conclusion that the transaction was not a hiring but a gratuitous loan for a specified time, it is not error for the court to charge the jury that the keeping of the chattel after the expiration of the time for which the loan was made and after demand by the bailor, was a conversion. So held in an action for negligence, by reason of which the chattel was injured.</p> <p>The return of a chattel, loaned or hired, and its acceptance by the bailor, is not a bar to the latter’s action against the bailee to recover damages for an injury to the chattel.</p>

<p>A party to a decree of foreclosure and sale, who has parted with his interest subsequent to the commencement of the suit, but prior to the entry of the decree, cannot, in his own right, maintain an appeal from the decree. He is not “ a party aggrieved," within the meaning of section 325 of the Code of Procedure. But where his wife, who is also a party to the suit, still has an inchoate right of dower in the subject of the suit, he may unite with her in such an appeal.</p>

<p>While the plaintiff in an action may generally discontinue the same as a matter of course and ex -parte, on the payment or tender of statutory costs, yet where the defendant has acquired some fixed right in the course of the action, which a discontinuance would impair or destroy, he cannot do so without the leave of the Court, and upon notice:</p> <p>Held, therefore, that in an action for divorce the plaintiff cannot discontinue upon the payment or tender of costs without leave of the Court or complying with a previous order made in the action, requiring him to pay a fixed sum to the defendant as alimony and counsel fee.</p>

Appeal by the defendant from a judgment of the Eighth District Court. The action was brought for goods sold and delivered to the defendant, and the answer was a general denial, and that defendant was a married woman. It did' not appear that the plaintiffs knew that the defendant was married, or that she had any separate estate, or that the goods were for the benefit of her separate estate.

<p>Appeal by the plaintiff from an order of special term denying a motion to strike out an answer as sham and irrelevant. The action was for damages for the conversion of a United States bond. The answer alleged—1st, that the bond had been given defendant in trust for certain purposes; and, 2d, that the defendant had a lien on the bond, for professional services, to the amount of $1,000. A motion was made at special term to strike out the answer as sham and irrelevant, and on the hearing it appeared that the plaintiff, being sick and regarding herself as in great danger, sent for her attorney, the defendant, and desiring to make provision for a son by a former marriage, was advised by' defendant to give certain securities, including the bond—for the conversion of which this action was brought —to a trustee, to hold the same in trust for the benefit of the gon. The plaintiff recovered, and finding that the defendant had sold the bond, notified him of the revocation of the trust by herself and the beneficiary, and demanded the return of the security. The defendant claimed that the revocation had been received after he had sold the bond for the purpose of reinvestment, but he failed to show how he had invested the money received. The defendant further argued that an order of the court would be necessary to revoke the trust. From an order denying the motion, the plaintiff appealed to the general term.</p>

<p>A mechanic’s lien, filed under the statute (Laws of 1863, chap. 500, .§ 11), ceases after one year from the filing of the notice creating it, unless, before the expiration of the year, it is continued by order of the court in which proceedings have been commenced to foreclose the lien, and a new docket is made stating the fact of such continuance.</p> <p>But where no proceedings for the foreclosure of the lien have been instituted within the year, the lien may be discharged by order of a judge of any court of record, upon due proof that the year has elapsed, that no proceedings have -been had, and upon the certificate of the clerk that no notice of any proceedings have been filed with him. In all other cases the lien ceases after a year without any discharge by order of court.</p> <p>A contractor having filed notice of a mechanic’s lien, instituted proceedings of foreclosure, in which the plaintiff, a materialman, also a lienor, was made a party. Pending ^uch proceedings, but nearly two years after the creation of the plaintiff’s lien, the latter obtained an order of court continuing his lien. Subsequently the owner having settled with the contractor, obtained an order discharging the plaintiff’s lien, on the ground that more than a year had elapsed without the commencement of foreclosure proceedings, and no notice of proceedings had been filed: Held, that the first order continuing the plaintiff’s lien was unauthorized, it not having been made within the year; and the second order accomplished nothing, because the plaintiff’s lien was already discharged, through his omission to obtain and enter an order of continuance within the year, and have a new docket made stating the fact of such continuance.</p> <p>The statute is imperative, and vests no discretion in the judge to continue or discharge a lien after the expiration of a year from the date of filing the notice.</p>

Appeal by the defendant from a judgment entered upon the report of a referee. On the 1st of May, 1865, Edward Flash was the owner of twenty-six hundred and twenty-five shares of the capital stock of the defendants and was credited with that amount of stock upon their books. Fifteen hundred of these shares of stock were represented by three certificates of five hundred shares each, numbered respectively 59, 60 and 62.

Appeal by one of two defendants from a judgment of the First District Court. The action was brought on a promissory note made by the defendant, McDonough, and endorsed by the defendant, Finnegan. In March, 1867, one Samuel Shapter recovered a judgment against McDonough, and the note in this action was given to Shapter as collateral security for the payment of the judgment; Finnegan received no consideration for his endorsement.

<p>"Where a consignor of a cargo improperly detains the vessel from going to sea, he is liable to the owner for his special damages.</p> <p>The defendant shipped by the plaintiffs’ vessel twenty-eight bales of cotton. By the Internal Revenue laws (Act of July 13th, 1866, § 8) it is declared to he unlawful for the master of a vessel to convey or transport cotton from any point in the district in which it shall have been produced, without a permit from the collector of the district, and a certificate that the tax has been paid. The defendant promised the master of the vessel to procure such a certificate and permit, hut having neglected to do so, the master was unable to get a clearance, and was detained eleven days from going to sea.</p> <p>Held, that the defendant was liable in damages, it being shown that the master had taken the best means known to him to notify the defendant of the cause of the delay.</p> <p>Held, further, that in such a case, it was not the duty of the master either to pay the tax, in order to obtain a clearance of the vessel, or to unload and store the cotton.</p> <p>Where there has been no agreement as to the rate of demurrage, the charterer or owner recovers an equivalent in damages for the whole time that the vessel is detained, through the delay or negligence of the freighter, the measure of damages being the loss or' injury sustained thereby, which may be ascertained by showing what the vessel is capable of earning, or usually earns per diem.</p> <p>'This court can only reverse an order of the Marine Court denying a motion to open a default or trial, on the ground of irregularity.</p> <p>.A cause was ordered, in the Marine Conrt, to be tried on a certain day, and the defendants attorney attended, and not finding the cause on the calendar, left the court. The plaintiffs attorney, however, had the cause placed on the calendar, and tried the cause, one of the defendants appearing in person and taking part in the trial. Held, that such a default or trial was not irregular.</p>

<p>A lessee of certain premises entered into a written contract with another, by which the latter agreed to advance the money necessary to fit up the premises in a manner suitable for sub-letting, to collect the rents from the sub-tenants, and after payment of his own advances and the rent due to the lessor, to divide the net income of the premises equally between himself and the lessee.</p> <p>Held, that such an agreement created, in equity, a trust for the lessor’s benefit which he was entitled to enforce against the parties to it.</p> <p>Both principal and agent cannot be sued together on a contract made by the agent in his own name for the benefit of his principal. The party with whom the contract is made, may sue the agent as principal, or if he elect, he may sue the real principal, but he cannot sue both.</p>

The plaintiff having recovered a judgment against the defendant, on the 26th September, 1867, procured an order, on the 9th October, 1867, to examine one James Ackroyd, on the ground that the latter had property in his possession belonging to the judgment debtor. Upon the examination, it appeared that the defendant, in February, 1867, gave Ackroyd a pawn-ticket for a watch and chain then in pawn ; that Ackroyd redeemed the watch and chain.

<p>Motion for costs in an action against executors. The facts-fully appear in the opinion of the court.</p>

<p>An order of arrest will not be granted on an affidavit made by the plaintiff’s testator before Ms death, entitled in an action he proposed to bring against the present defendant upon the same or similar causes of action set forth in the plaintiff’s complaint.</p> <p>The complaint contained causes of action for damages for a conversion and for false and fraudulent representations. Held, that as the evidence was not sufficient to warrant the granting- of an order of arrest on the ground of false and fraudulent representations made, it should not be granted on the cause of action for conversion under § 179 of the Code. An order of arrest must relate to all the causes of action set forth in the complaint.</p>

This was a motion to dissolve an injunction granted in an action brought to set aside a judgment and mortgage as having been obtained and executed to defraud creditors. It did not appear from the plaintiff’s papers that he had obtained a judgment against the mortgagor and judgment debtor, on which an execution had been issued and returned unsatisfied.

Appeal by the defendant from a judgment of the Marine Court. The action was brought by the plaintiff, as sheriff, to recover keeper’s fees. On the 23d July, 1864, a judgment was recovered in the Supreme Court against the defendant in this action, for $718.97. An execution was issued thereon on August 6, 1864, to the plaintiff, as sheriff, who levied on household furniture of the defendant.

The action was brought to enjoin' and restrain the defendant, Platt, from interfering with the possession of the plaintiff’s property situated in Colorado, and from selling it, and to declare and adjudge a certain mortgage or trust-deed executed by the plaintiff’s former officers to be void, and to adjudge certain bonds of the company alleged to be secured by such mortgage to have been illegally issued, &e. The allegations on which this relief was sought are set forth in the…

<p>It is well settled that where fraudulent representations are alleged as the basis of an arrest, it must appear, not only, that the representations were false, but that they were known to be so by the party making them, at the time they were made.</p> <p>When fraud is relied upon as subjecting a party to arrest, the particular facts constituting the fraud should be set forth. Thus where the plaintiff’s affidavit, on an application for an order of arrest, merely avers that the representations made .by the defendant were false and fraudulent, leaving the facts a matter of mere conjecture: Held, that the affidavit is'defective instating simply conclusion, which may or may not be correct, and is not sufficient to warrant an order of arrest.</p>

• Appeal from a judgment dismissing the complaint in the Marine Court.

The plaintiffs having recovered a judgment in this action for $1,073.37, on July 25,1865, issued an execution thereon, which was returned unsatisfied. On the 3d September, 1870, proceedings supplementary to execution were commenced and defendant partially examined, after which further examination was adjourned to September 17th. On.the 3d September, 1870, on motion of the plaintiff and after hearing, leave was granted to issue execution on said judgment.

<p>Appeal by the defendant from a judgment entered on a verdict at trial term.</p> <p>This action was brought to recover damages for negligence of the defendant, an attorney at law.</p> <p>The complaint alleged that the plaintiff employed the defendant, as an attorney, to examine the title of one Patterson to certain personal property, upon which plaintiff was about to loan certain shares of stock of the value of $5,000; that defendant assured the plaintiff he could safely make such loan, he having examined the title; that the defendant drew the bond and mortgage which were executed November 22d, 1864, and the mortgage left with defendant to be filed and recorded; that the defendant did not so do, but so negligently and. unskillfully conducted himself in the course of his employment as such attorney, that he failed to record said mortgage until December 23d, 1864; and that in the meantime, on December 15th, 1864, a mortgage for $11,000, executed by said Patterson to one Hutchings, and covering the same chattels, was duly filed, and thereby became and was a prior and superior lien over the mortgage to the plaintiff, and that the bond and mortgage to the plaintiff thereupon became wholly worthless.</p> <p>The answer admitted that the defendant was an attorney, and denied generally all the allegations of the complaint, and alleged that the plaintiff’s mortgage had been on May 22d, 1865, duly satisfied of record by the plaintiff; that the mortgage to Hutchings covered other property besides that mortgaged to the plaintiff, and more than sufficient in value to pay both of said mortgages, and that the mortgage to Hutchings was on April 11th, 1866, duly paid and cancelled of record, and that no part of the property covered by either of said mortgages was ever taken possession of, removed, sold, or claimed by either of the said mortgagees, and the stock loaned to Patterson was at the time the same was to be returned, and still is utterly worthless, and that the said Patterson offered to return the same number of shares of said stock to the plaintiff before the same was due.</p> <p>Upon the trial the defendant swore that he was never employed by the plaintiff, but acted for the mortgagor, and received the mortgage from the latter, who had retained it to affix the schedule, and on the day that he received it, it was recorded. In this he was corroborated by the mortgagor. The plaintiff sought to show that the defendant, in collusion with the mortgagor, had procured a satisfaction of the mortgage from the plaintiff, and that the plaintiff only received in consideration of such satisfaction the note of the mortgagor for $2,600 and certain promises ; that the note was worthless, and the promises fraudulent.</p> <p>The jury found a verdict for the plaintiff, and from the judgment thereon the defendant appealed.</p> <p>I. The motion for a non-suit, at the close of the plaintiff’s proof, should have been granted.</p> <p>It appears, not only by the complaint, but also by the evidence of the plaintiff, that the whole claim and ground of grievance is, that the defendant did not file the plaintiff’s mortgage, till after the subsequent Hutchings’ mortgage was filed; which thereby became a lien prior to the mortgage of the plaintiff’s. On the most favorable construction of the plaintiff’s evidence, there was no undertaking of the defendant, nor any employment of him by the plaintiff to file the mortgage. But even if there were evidence tending to show an employment by the plaintiff of the defendant to file the mortgage, it was without consideration, and was not professional.</p> <p>II. The plaintiff having been paid, and satisfied his mortgage of record, cannot maintain this action against defendant for a failure to file the mortgage.</p> <p>III. The only mortgage which intervened was in fact paid prior to the payment and satisfaction of the respondent’s mortgage, and thereby the respondent’s mortgage became, and was at the time of the giving of his satisfaction, a first lien upon the property, and any injury which might have resulted from the intervening mortgage was cured.</p> <p>IV. The mortgage which intervened embraced other property besides that covered by respondent’s mortgage, and more than sufficient to pay the same, and was, in fact, sold by Patterson for more than the amount of it. This being the undisputed fact, if Hutchings proceeded to the foreclosure of his mortgage, a court of equity would have restrained him from selling the property covered by the Arnold mortgage, until after the property covered exclusively by his mortgage had been exhausted.</p> <p>This is the well-established rule in regard to real estate. (Skeel v. Spraker, 8 Paige, 182; Governeur v. Lynch, 2 Id. 300; Rathbone v. Clarke, 9 Id. 648; Schryver v. Teller, 9 Id. 113; Crafts v. Aspinwall, 2 N. Y. 289.)</p> <p>V. At the time of the giving of the satisfaction piece, Patterson was in the possession of all the property, and conceding a then existing injury for not having filed the mortgage in time, the measure of damage at that time would not have been the amount of the mortgage, but the difference between it and the value of the property over the intervening mortgage. If there was any neglect in the filing of the mortgage, the appellant had the right to be subrogated to the rights of the respondent in respect to it, but by the satisfaction of it, the appellant was deprived of all benefit of it.</p> <p>VI. The respondent having brought this action to recover damages for not filing a chattel mortgage, is confined to that cause of action, and cannot recover in the same action for deceit or fraud in procuring a satisfaction of two mortgages or for a concealment of the fact of payment of the intervening mortgage. A party must recover according to the case made by his complaint, or not at all. Secundum allegata, as well as probata. (Rome Exch. Bk. v. Eames, 1 Keyes, 588; Ryder v. Jenny, 2 Robt. 56; Boardman v. Davidson, 7 Abbott Pr. N. S. 439.) In order to maintain a claim for special damages, they must be the legal and natural consequences arising from the tort, proceeding exclusively from that act, and not from the wrongful act of a third party, remotely induced thereby. (1 Saund. Ps. & Ev. 344; Crain v. Petrie, 6 Hill, 522; Jansen v. Ball, 6 Cow. 628; Bridge v. Mason, 45 Barb. 37.)</p> <p>The relation of attorney and client is created by contract, and, like all other contracts, must be founded on a consideration. (1 Parsons on Contracts, 115 ; Brady v. Mayor &c., 1 Sandf. 569.)</p> <p>VII. The mortgage was not in a condition to be filed until after the government stamps were put on and duly canceled according to the act of Congress.</p> <p>I. This case was submitted by the court to the jury upon the question of the credibility of the respective parties in the action, and the verdict of the jury in favor of the plaintiff established the truth of the plaintiff’s version, and it should not be interfered with on appeal. (Forward v. Harris, 30 Barb. 338; Mann v. Witbeok, 17 Barb. 388; Roberts v. Gee, 15 Barb. 449.)</p> <p>II. It is immaterial whether or not the defendant was bound to file the plaintiff’s mortgage. Having informed him that he had filed it, and thereby misled him, he is liable for the injury caused by such false assertion ; whether he asserted that which he knew to be false, or that which he did not know to be true. (Bennetts v. Judson, 21 N. Y. 241; 1 Story’s Eq., § 193, and cases cited.)</p> <p>III. The defendant’s employment, however, bound him to perform this duty, although it might not have been specifically mentioned. A client is never required to specify each legal step his attorney should take to protect him. If he could do that, he would not need his assistance. It is immaterial whether the defendant’s employment was gratuitous or for a compensation. He had a right to refuse to do anything until his disbursements, and, perhaps, his fees, were secured, but he was bound to communicate such refusal, or any inability to accomplish his commission, to his client, so as to enable him to protect himself. (Calender v. Oericks, 6 Scott, 761-767.)</p> <p>The rule is, that although a person may not be bound to act without a consideration, yet that if he gratuitously undertakes to do anything in which his profession implies skill, his omission of that skill constitutes gross negligence, and makes him liable. And the receipt of the thing which is to be carried, or in regard to which the work is to be performed, constitutes a consideration for his contract. (Shiells v. Blackburn, 1 Hen. Blacks. 158; Wilson v. Brett, 11 Mees. & Wels. 113; Cited and approved, Nolton v. Western R. R. 15 N. Y. 444, 449; Thorne v. Deas, 4 Johns. 48.)</p> <p>IY. The evidence shows that the defendant agreed to look to the mortgagor (Patterson) for his compensation. This is the ordinary rule in loans, and relieved the mortgagee from any obligation to pay. A reliance on the credit of another will relieve the employer. (Sloan v. Van Wyck, 47 Barb. 634; James v. Bixby, 11 Mass. 37; Judson v. Gray, 17 How. Pr. 289, affirmed by Ct. Ap. 17 How. Pr. 296; Schemerhorn v. Vanderheyden, 1 Johns. 140; Lawrence v. Fox, 20 N. Y. 268; Van Schaick v. 3d Av. R. R., 38 N. Y. 346.)</p> <p>Patterson’s promise, even if gratuitous, became binding upon him when accepted. (Wayne & Ont. Inst. v. Smith, 36 Barb. 576.)</p> <p>V. The plaintiff did not lose his claim for damages by satisfying his mortgage, as this satisfaction was obtained by fraud, and, therefore, void.</p> <p>He signed it in ignorance of the defendant’s fraud, and under the belief, inspired by his representations, that his (plaintiff’s) mortgage was worthless, and that his only chance of getting anything was in keeping on good terms with Patterson, whereas, in fact, the Hutchings’ mortgage had been paid (although not satisfied of record), and Patterson, by concealing the fact, induced him to cancel as worthless what was really a valuable security.</p> <p>This was a fraud, which rendered the transaction void. The rule is, that if there has been intentional concealment or suppression of material facts in cases where both parties have not equál access to the means of information, it will be deemed unfair dealing, and will vitiate and avoid the contract. (2 Kent’s Com. 482, approved, 1 Sandf. Ch. 344; see 2 Black’s Com. 451; Drummond v. Tracy, 6 Jur. N. S. 369; Bench v. Sheldon, 14 Barb. 66, 72; 22 Barb. 654; 1 Story’s Eq. Juris. §§ 208 to 212.)</p> <p>Therefore, not removing a delusion into which the vendor knew the purchaser had fallen, is equivalent to an express misrepresentation. (Keates v. Cadogan, 2 Eng. L, and E. 318; Hill v. Gray, 1 Starkie, 434.)</p> <p>. YI. The plaintiff was not bound to resort to equity to compel Hutchings.to elect between the goods at the stable and those at the hotel, even if he had the legal right to do so. The plaintiff was only bound as against the defendant to take such Steps to protect himself as he could do at a trifling expense or with reasonable exertions. (Miller v. Mariner's Church, 7 Greenl. 51; Heaney v. Heeney, 2 Denio, 625.)</p> <p>VH. Default having been made in the payment of the mortgage to Hutchings, the. title to the mortgaged property had vested absolutely in the mortgagor, even if he had not reduced it to possession. (Hulsen v. Walter, 34 How. 385; Brown v. Bement, 8 Johns. 75; Ackley v. Finch, 7 Cow. 290; Langdon v. Buel, 9 Wend. 80; Patchin v. Pierce, 12 Wend. 61; Champlin v. Johnson, 39 Barb. 606.)</p> <p>Till. The ruling of the court in regard to allowing the plaintiff to explain the manner in which the satisfaction of his mortgage had been obtained, was mere matter of discretion. (Harpell v. Curtis, 1 E. D. Smith, 78; Peckham, v. Leary, 6 Duer, 494; Barger v. White, 2 Bosw. 92; Anthony v. Smith, 4 Id. 503.)</p> <p>The satisfaction was only proven incidentally by an indorsement on the mortgage offered in evidence, which indorsement had not been noticed by the plaintiff’s counsel.</p>

<p>The Marine Court has no power to refer the issues in a cause, unless the trial-will . require the examination of a long account. Hence, a reference ordered in an action where the sole issue was fraud, is an irregularity, and renders void subsequent proceedings in the action.</p> <p>The court cannot deprive a party of his statutory right of a full notice of trial, unless it is waived or unless conditions are imposed on him on granting him a favor.</p> <p>The general term of the Marine Court may review, on appeal, any intermediate order made in the action, involving the merits and necessarily affecting the judgment.</p> <p>This court will, on motion, set aside an execution issued out of this court, on an irregular and void judgment of the Marine Court, a transcript of which has been filed in the county clerk’s office. And will do this on a motion to vacate the judgment, and for other relief, &c.</p> <p>Where a judgment creditor’s attorney, notwithstanding a pending stay of proceedings on the execution, procures from the sheriff the proceeds of a levy made under it, the court will, on motion, order such proceeds to be returned to an officer of the court, to abide its further order.</p> <p>The Court of Common Pleas is, as to all appealable questions, from the Marine Court, the court of final resort (except when it allows an appeal to the Court of Appeals), and its orders are conclusive.</p> <p>Proceedings as for a contempt to enforce a civil remedy, adjudged against the plaintiffs and their attorney in an action, is a proceeding in the action.</p> <p>It is no answer to a motion to punish a party as for a contempt for disobedience of an order that an appeal has been taken from the order and an undertaking filed.</p>

<p>Motion to stay the entry of judgment, and set aside referee’s report.</p> <p>This was an action or proceeding brought by the plaintiff Wm. S. Burton, a subcontractor, against Isaac Herman, owner, and John Barry, contractor, to foreclose a mechanic’s lien on premises No. 19 East Fifteenth street, in the city of New York.</p> <p>The cause was referred to Thos. H. Landon, Esq., referee, to hear and determine.</p> <p>The matter was tried before the referee, and on the 27th day of April, 1870, he rendered his report in favor of said Barry for $3,745, and costs, subject to the payment of the lien Sled by the plaintiff Barton, amounting to the sum of $1918.65 .and costs.</p> <p>It appeared that the notice of lien of Barry, the contractor, was Sled on the 14th day of April, 1869.</p> <p>On the 9th day of April, 1870, an order continuing said lien was procured from a judge of this court, and on the same day a certiSed copy thereof was taken to the county clerk’s office, where it was endorsed by one of the clerks, as follows: “Filed, 9 April, 1870. 11 H. 15 M.”</p> <p>It was then in accordance with the practice in the county clerk’s office, taken by the party who acted for the lienor into another room, for the purpose of being there Sled, and entered in the mechanics’ lien docket, when it was discovered that the ■original lien was Sled on the 14th April, 1869, whereas the order purported to continue was Sled on the 13th April. Hnder these circumstances, it was found that the lien could not be continued, and the person acting in behalf of Barry took the order away with him, saying that he would have it corrected and returned; but the same was never returned to or Sled with the county clerk.</p> <p>Hpon these facts, Herman, the owner, made this motion that the entry of judgment be perpetually stayed, and the referee’s report set aside, and for such other and further relief as might be just.</p>

<p>A court of equity has no inherent jurisdiction to award costs independent of statutory authority.</p> <p>Hence, in a suit between copartners for a settlement of the copartnership .affairs, the court will not, before final judgment, appropriate any part of the partnership funds in the hands of the receiver as a compensation or allowance to the plaintiff’s attorney for his services in the action.</p>

The action was brought on an agreement, which was set out in full in the complaint.

<p>Motion* to compel tlie plaintiff to serve the summons upon all the defendants in the action, and to bring in as parties defendant the legal representatives of a deceased defendant, and for a stay of proceedings.</p>

<p>On a motion, properly noticed, for final judgment in an action for foreclosure, the court may grant to the moving party a further allowance under the last clause of section 309 of the Oode of Procedure. It is not necessary, in such a case, that a separate motion, on affidavits, should he made, as the parties are, or might he, before the court on the motion for judgment, and the pleadings and proceedings in the action are all the evidence required to enable the court to determine the question.</p> <p>A defendant who has appeared in the action, hut has failed to answer, is entitled to but one notice of motion for the relief demanded in the complaint. Hence where in a foreclosure suit, the plaintiff, on notice to the defendant, moved for judgment on defendants’ failure to answer, and for a reference to compute the amount due, &c., which was granted; Held that, on the coming in of the report, the plaintiff might, without further notice, apply to the court forthwith for judgment on the report, without waiting eight days for exceptions to be filed by the defendant.</p>

<p>The statutes of 1848 and 1849, in relation to married women, did not alter the common law rule, invalidating direct gifts from husband to wife.</p> <p>But where the conveyance is made to the wife by a third person, for a consideration paid by the husband, the courts will not, except on the application of a creditor of the husband, question the wife’s title. Still less will the third person who made the conveyance, be permitted to question the wife’s title so far as it depends upon the consideration flowing from her to her husband.</p> <p>Where a husband procured promissory notes, to be made to his wife by a third person, on a consideration paid by himself held that the wife might maintain an action on the notes against the maker, in her individual name.</p> <p>A corrupt and illegal agreement, made between the husband and the maker of the notes, subsequently to their execution and delivery, but to which the wife was-neither a party or privy, by which the husband was, as a part of the consideration, for the agreement on his part, to give up the notes" in question, will not affect the wife’s right of action on the notes.</p>

Appeal by the defendant Matthews from a judgment entered on the verdict of a jury at trial term.

<p>Appeal by the defendant from a part of a final decree, entered at, special term.</p> <p>The action was brought to obtain a decree of separation.</p> <p>Before issue was joined an order was made allowing the plaintiff alimony pendente lite, and also the sum of $250 toward defraying her necessary costs, expenses and counsel fees. The action was never tried. The plaintiff made overtures of settlement, which were acceded to by the defendant, but the plaintiff’s attorney refused to consent to a discontinuance of the action unless the defendant would pay him an additional counsel fee. Upon affidavits stating these facts the defendant moved for an order to discontinue and settle the action.</p> <p>Upon such motion being heard, it being made to appear that the parties had agreed to a settlement of the case, a decree was entered, upon motion of the defendant’s attorney, in accordance with the terms of the settlement, and in that decree the court granted an additional allowance of $750, by way of counsel fee to the plaintiiPs attorney.</p> <p>From, that part of the decree granting the additional allowance this appeal is taken.</p>

<p>Appeal by the defendants from a judgment of the Second District Oourt.</p> <p>The complaint was oral “ on a counterfeit bill passed by defendants to Gilroy & Reynolds in payment of checks, and assigned to the plaintiff $20.” The answer was “ a general denial.” It appeared on the trial that Reynolds sent one Barrett to the defendants to obtain the money upon two checks drawn upon other banks. In the money received from the defendants for the checks was a $20 counterfeit bill, the amount of which it was sought to recover. The assignment of the claim against the defendants by Gilroy & Reynolds to the plaintiff was not in writing.</p> <p>The Justice gave, judgment for plaintiff for $20, from which judgment the defendants appealed to this court.</p>

Appeal by the defendants from a judgment entered on the verdict of a jury at trial term under the direction of the court. The action was for damages for the conversion of the proceeds of certain goods consigned by the plaintiff to the defendants for sale on commission. An answer having been interposed, a motion was made for judgment upon the frivolousness of the answer. The motion was granted, with leave to serve an amended answer.

-Appeal from a judgment of the Marine Court. This action was brought for injuries sustained by the plaintiff, by falling into a sewer in the course of construction, while attempting to cross Seventh avenue, at or near the intersection of Twenty-fourth street, on the 27th December, 1869, about seven o’clock, P. M. The complaint alleged that such injuries were due to the defendant’s negligence in not having the excavation properly guarded and in not having signal lights to…

<p>The plaintiff agreed to purchase from the defendant a quantity of whiskey then owned by a third party, to be paid for when it should “ arrive and be inspected ” at a designated warehouse. The plaintiff made a partial payment on account of the price, but on the arrival and inspection of the whiskey at the warehouse, a dispute arose as to the exact quantity to be paid for, and the . plaintiff refusing to make any further payment, the defendant sold the whisky. Held, in an action for conversion, that there being no delivery to the plaintiff, nor full payment by him of the price, no title passed to him, and he could not maintain the action.</p> <p>The judge cannot, on the trial, take the assessment of damages from the jury, nor suspend judgment and order the exceptions to be heard in the first instance at General Term, except upon an uncontradicted state of facts.</p>

Appeal by the defendants from -a judgment of the Marine Court.

The plaintiff, a resident of the City of New York brought the action to recover the value of certain work and services performed by him for the defendant, a foreign corporation created by and organized under an act of parliament, but having an office or place of business in the city of New York. Upon the return day of the summons, the defendant appeared by counsel and objected that the court hadjio jurisdiction in such actions.

Appeal by the plaintiff from a judgment entered upon the report of a referee. The action was for á dissolution of a partnership and for a settlement of accounts between the parties as copartners.

Appeal by one of the defendants from judgment at special term. This was an action for an injunction against the defendants restraining them from seizing certain personal property of the plaintiffs. In September, 1864, the plaintiff Mrs. Reed was inarried to the defendant Reed with whom she continued to live till shortly prior to April 24th, 1867, when they separated by mutual consent.

The plaintiffs commenced this action in the Marine Court of the city of New York, by attachment, on the ground of the non-residenoe of the defendants. The only property attached was a leasehold interest in 27th street, New York. No process was ever personally served on the defendants, and they did not appear in the action, and judgment was taken against them, as by default.

Appeals by the plaintiff from judgments of the general term of the Marine Court, reversing judgments entered upon reports of a referee, and ordering new trials. The facts sufficiently appear in the opinion of the court.

<p>Appeal from a judgment entered upon the decision of a Judge at the Equity Term.</p> <p>The action was brought to reform a lease containing an agreement to sell the leased premises upon the lessees giving-notice of their intention to purchase at a fixed period. The facts are fully stated in the opinion of the Court. .</p>

Appeal by the defendants from an order made at special term overruling a demurrer, and ordering judgment for the plaintiffs upon the complaint, with leave to plead, &c. The facts fully appear in the opinion rendered below by « Labrémose, J.—The plaintiffs, on the 6th of August, 1869, commenced an action, in one of the district courts of this city, against the defendant, Ackerson, for a claim exceeding $100.

Appeal by the plaintiff from a judgment at trial term. Held: that a nonsuit cannot be granted after the cause has been submitted to the justice or to the jury; and that, if a judgment of non-suit is afterwards rendered, either by the justice, or upon the verdict of the jury, it is equivalent to a judgment for the defendant upon the merits, and will be so regarded. {Félter v. Mvlliner, 2 Johns.…

<p>The provisions of the Bevised Statntes and Code (§ 123) which declare that actions brought for property distrained for any cause, shall be laid in the county where the distress was made, refers to the proceeding of distress as it existed at common law, by which a party might take and hold the personal property of another as a pledge or security for the payment of debt, the discharge of some duty or reparation for an injury done, with the right, in certain cases, to sell it to obtain satisfaction.</p> <p>Held, therefore, that the taking by a mortgagee of chattels mortgaged to him, before default in the payment of the debt intended to be secured by the mortgage, although a wrongful taking, was not a distress within the meaning of the statute, and an action by the mortgagor for claim and delivery, under the Code of Procedure, is not local.</p> <p>A District Court of the city of New York has jurisdiction of an action of claim and delivery of chattels, unlawfully taken and detained by the defendant in another county.</p>

Appeax by the defendant from a judgment entered upon the decision of a judge, without a jury. The action was brought to foreclose a mortgage. The answer, among other things, set up a failure of consideration, and plaintiff’s fraud in obtaining and recording the mortgage. Issue was joined by the service of plaintiff’s reply, in the form of a general denial, September 25, 1869.

<p>Appeal by the plaintiffs from a judgment entered upon the report of a referee.</p> <p>The action was brought by the plaintiffs to recover for work done and materials furnished at the defendant’s request, in erecting a building on the corner of Broadway and Barclay street, New York.</p> <p>The complaint alleged: (1.) That the plaintiffs entered into a contract with the defendant, and agreed to do all the mason-work on the building for $41,300; that they did the work, &c., and $300 of said contract price still remained due and unpaid. (2.) That they did extra work, at the defendant’s request, upon .the building, worth $2,455.43. (3.) That they performed other work, worth $2,315.12, in taking down the walls and excavating the ruins of the old building. (4.) That they did further extra work, worth $25.75.</p> <p>The answer denied that the plaintiffs had complied with the covenants and conditions of their contract, and alleged that the extra work performed by the plaintiffs was not worth more than $3,157.86 ; and further alleged that, by the terms of the contract, the plaintiffs were to erect the building, and complete their work by Hovember 1,1866, and that in default thereof they were to pay to the defendant $50 for each day they should be in default, as the fixed, settled and liquidated damages for such non-fulfillment; that the building was not completed until February 1,1867, and that by reason of the failure of the plaintiffs, $60 for each day from November 1, 1866, to February 1,1867, or $4,600 in the aggregate, became due to the defendant; that by reason of the failure of the plaintiffs to complete the building, the defendant lost the use thereof, and sustained damages to the' amount of $4,600, which sum the defendant claimed to deduct from any demand of the plaintiffs, and demanded judgment for $417.02. Issue was joined by the service of the plaintiffs’ reply denying the allegations in the defendant’s answer, and the cause was referred to William Mitchell, Esq., as sole referee.</p> <p>The referee reported in favor of the defendant. The plaintiffs appealed to the general term.</p>

<p>A judgment of a court of competent jurisdiction is only conclusive in subsequent controversies, as between the same parties or their privies, and upon the points actually decided. The estoppel thereby created must, however, be mutual.</p> <p>The rent under an agreement by lease being payable monthly, claims of the lessor for the rent of the several successive months are severable and assignable, and a judgment against the tenant for the rent of one such month, in favor of an assignee of the lessor’s claim for that month’s rent, is not conclusive against the tenant in an action by another assignee of a subsequent month’s rent.</p>

The action was brought to recover damages for defamation of character. The plaintiff had been employed by the defendant, Mrs. James, as a seamstress. In February, 1869, Mrs. James left the city for the South, and remained away until May. When she returned, she found that a velvet dress, which had been left in the care of the plaintiff, had disappeared.

Appeal by the defendant from a judgment of the Marine-Court. The action was brought against the defendant as the indorser of a promissory note for $2,033.60, to recover an unpaid balance of $500. The defendant, by answer, alleged that the note had been fully paid and satisfied by one Schwartz, the maker, and he, the defendant, thereby became, as indorser, fully discharged from liability.

<p>. The inherent jurisdiction of the State over lunatics and persons of unsound mind, whether citizens or aliens, within its limits, rests upon two grounds—First, its duty to protect the community from the acts of those who are not under the guidance of reason; and, secondly, its duty to protect them as a class incapable of protecting themselves, which has its foundation in the reciprocal obligations of allegiance and protection, which extends to aliens and strangers, who, while they are within the limits of the State, are under the obligations of a temporary and local allegiance, and are entitled to its protection.'</p> <p>The care and custody of a lunatic, and of his estate, necessarily imply both the right and the duty, on the part of the Court, to do in respect to either whatever is most conducive to his interest; to see, in respect to his person, that he is maintained as comfortably as his unfortunate situation will admit of, and his pecuniary resources will allow ; that everything is done that can be done by care, skill and medical treatment, to promote Ms general health, or which may contribute to the restoration of his reason.</p> <p>Where an East Indian, temporarily in this State, became a lunatic, and it was made to appear to the Court, which had appointed a committee of Ms person and estate, that it would be to the mental and physical advantage of the lunatic, to have him sent home to India—Held, that the court had the power to do so.</p> <p>Held, further, that no probable expense should deter the court from directing to be done whatever appeared to be most advantageous for the lunatic without regard to the interests of the next of kin.</p> <p>And where the committee of the person of the lunatic was directed to take his charge to India, held, that it was an exception to the general rule that no compensation should be allowed to the committee of a lunatic for his personal services, and that he should be properly remunerated for that services.</p>