Volume 3 — E.D. Smith's Common Pleas Reports

This case came up on the defendant’s appeal from a judgment, entered under the direction of a judge at special term, upon the verdict of a jury. The questions involved arose upon a refusal to nonsuit, at the trial, and upon the charge to the jury. The facts are fully stated in the opinion.

Action by a landlord against a surety, upon a lease, whereby a house and lot were let to one Abbott, “for the term of one year, to commence, the first day of May, 1852, and to end on the first day of May, 1853, at the yearly rent of five hundred dollars (and Croton water tax), for the said term, payable quarterly.” The demise was in the exact words above quoted, and was followed by two distinct covenants, on the part of the lessee, to the effect, first, that he would keep…

<p>This suit was "brought against the members of a political association, to recover the cost of a supper furnished at a hall. One of the defendants, J. Martin, suffered judgment by default. Another, Levy, answered separately. The remainder put in a joint defence.</p> <p>The cause was tried by a jury, who found a verdict for the plaintiff. On the trial, a motion was made for a nonsuit, on the ground, principally, that the plaintiff could not recover without distinctly proving a joint liability on the part of the defaulting defendant, and that the evidence offered for the purpose was insufficient. The motion for a nonsuit was denied by Daly, J., who presided at the trial; hut the objection was afterwards sustained by him, at special term, and an order granted for a new trial. From this order the plaintiff appealed. The case is stated in the opinion of the court.</p>

The defendants were sued as endorsers upon a promissory note. The evidence in. the case disclosed the facts which are detailed in the opinion of Ingraham, First J., and the additional fact referred to at the commencement of Judge Woodruff’s opinion.

<p>Appeal by the defendants from a judgment of the Marine Court, rendered under the circumstances stated in the opinion.</p>

<p>Appeal from a judgment upon a promissory note, given on the pur chase, of certain casks.</p>

The plaintiff brought suit in the Sixth District Court, as assignee-of a claim for medical services. On the return of the summons, the parties appeared, the defendant being accompanied by his attorney, and joined issue, when the justice directed an adjournment for trial.

<p>This suit was brought by a clergyman against a religious corporation. The complaint alleged the call and employment of the plaintiff in June, 1844, at a fixed salary, 'and the rendition of his services in pursuance thereof, until J anuary 1,1846. It was also averred, that the defendants executed, on account of their indebtedness to him, three bonds, two in June, 1845, and one in January, 1846.</p> <p>The church was divided into two parties, one represented by Henry Gable and others, Calvinists; the other, by Jacob F. Miller and others, Lutherans. A litigation arose to determine the respective claims of two rival boards of trustees, and was commenced by filing a bill in the old Court of Chancery against trustees elected by the Lutheran party, and who, at the time that suit was commenced, were in possession. Vice Chancellor Hoffman dismissed the complaint. His decision was reversed by Chancellor Walworth, in May, 1844, and the Gable party were thereupon put in possession, and continued, until after January 1,1846, in the custody of the temporalities and estate of the church. The employment of the plaintiff was by a board of trustees elected by that party. In January, 1846, the chancellor’s decree was reversed by the Court of Errors, and a final judgment was rendered in favor of the Lutheran, or Miller party, in accordance with the original decision of the vice-chancellor. (See 10 Paige Ch. Rep. 627; and 2 Denio, 492.)</p> <p>It appeared, from the evidence in the present case, that the plaintiff had been associated with the Calvinistic or Gable party; that he was active in aiding the litigation on their .behalf; and that after the contract for his services, in June, 1844, he was ex officio one of the consistory, composed of the minister, elders, and deacons, and having in charge the government of the church, and was, as one witness testified, chairman of the board of trustees.</p> <p>• 'When-the contract-was made, the Miller" .party - had not obtained a stay of proceedings; nor given notice of any intention .to appeal-from, the chancellor’s decision.</p> <p>Among other objections to the plaintiff’s recovery -here, the defendants insisted, in substance, that the statutory provision (2 R: S. 4th ed. p. 1183, § 8), requiring payment of the salary out of the revenues of the church; limited his remedy, and allowed to him no resort- to the property of the corporation by an ordinary judgment. •</p> <p>The cause was tried by the late Chief Justice Samuel Jones, sole referee, who reported that the-plaintiff had performed his agreement to act as minister; that the defendants were liable iipon their'contract of employment, and upon the two bonds of June, 1845, but not upon the bond executed subsequently to the promulgation-of the' decision of the court of last resort, in January, 1846.</p> <p>Judgment was entered upon the .report for $2,272 37. • The defendants appealed. .</p>

The plaintiff ' having recovered a judgment against the defendant in the Marine Court, assigned it to his attorney, who filed a transcript in this court and issued execution.

This action was against the owner of a building in course of erection, for the price of certain lumber furnished to one Chittenden, his contractor. The plaintiff relied upon a special promise of the defendant, the evidence whereof is stated in the opinion. The Marine Court gave judgment against the defendant, from which he appealed.

<p>Where a debtor, upon the presentation to him of a bill for clothing, struck out one item, and wrote after it, “Never got it;" held sufficient to warrant the inference that he received and was chargeable with the other articles enumerated therein.</p>

The complaint in this case alleged a delivery to the defendant, at his request, of goods, and a promise to pay their value, which was averred to have been $656; that the defendant refused either to pay for the goods, or to deliver them to the plaintiff, although the same were demanded ; wherefore judgment, etc. The answer simply traversed these allegations. A reference was ordered, and resulted in a report for the defendant.

<p>A composition deed, executed by the plaintiff and other creditors of the defendant, contained a covenant to accept fifty per cent, of the defendant’s indebtedness, in three installments payable in about six, twelve, and eighteen months, and that such payments should be in full satisfaction and discharge of all claims; but a condition was annexed, requiring that three-fourths, in amount, of the creditors, should sign the deed, without any limitation, however, as to the time within which the signatures must be procured. To this was added a covenant, by the plaintiif, that if the defendant paid the installments as they respectively became due, he would not prosecute the defendant for the debt until the expiration of the term limited for the payments, and that until then the instrument . should operate as an absolute discharge of all suits commenced or which might be commenced against him. Held, that the defendant had the full period thus limited, within which to obtain the signatures of three-fourths of his creditors, and that the instrument was a good defence to an action brought by the plaintiff within the stipulated time, if the instalments were paid as they became payable by the terms of the composition deed.</p>

The plaintiff declared as follows: “ City and county of üew York, ss. “ The complaint of Eugene Keteltas, plaintiff against James Myers, Jr., defendant. • “First, That the plaintiff, on the first day-of July, 1853, for value received, made and delivered to the said plaintiff his ■promissory note in writing and payable to the order of the plaintiff, and endorsed by him, of which the following is a copy: “ ‘New Yoek, July 1st, 1853. “ ‘ Sixty days after date, I promise to pay…

. This cause was tried before Ihgraham, First J,, and a jury. The defendant having obtained a verdict, the plaintiff moved, at general term, for. a new- trial, on a case, in accordance, with the practice-in .actions, prosecuted .under the system displaced by the Code. . ... ........ .The pleadings; material incidents of.the trial, and facts relating to the points discussed, are stated in the opinion of Woodruff, J. ...

The plaintiff sued the railroad company for injuries to a horse within the city limits, caused by catching the hoof in such manner, between the rails of the defendants’ track, as to lame and permanently injure him. The case came before the court, on the defendants’ appeal from a judgment entered against them on the report of a referee.

<p>This was a prosecution under the comparatively recent statutes, giving a right of action, for the benefit of the next of kin, to the representatives of a deceased person whose death has been caused by the negligence of a company or individual. (See laws of 1847, p. 575, and of 1849, p. 388). The suit was brought by the late David Graham, as attorney. The complaint was as follows;</p> <p>City and county of New York: Thomas J. Oldfield, as administrator of all and singular the goods, chattels, and credits, which were of Hetty Downie, late of the city of New York, deceased, who died intestate, plaintiff in this action, by David Graham, his attorney, complains that the New York and Harlem Railroad Company, on and before the ninth day of May, one thousand eight hundred and forty-nine, and in the lifetime of the said Hetty Downie, since deceased, were and still are a body politic and corporate, created by an act of the legislature of the state of .New York, passed April 25th, 1831, and that on the day first above mentioned the said defendants kept and still keep an office for the transaction of business, within the city and county of New York.</p> <p>That on the said ninth day of May, 1849, the said Hetty Downie, since deceased, was passing along and across a certain public street or highway in the city of New York, called Centre street, on her lawful affairs and business, and that a certain car, called a railroad car, drawn by four horses, the same being the property of the said defendants, driven by a servant and agent of the defendants, was wrongfully, negligently, and carelessly driven against and over the said Hetty Downie in her lifetime, whereby the said Hetty Downie was knocked down and crushed and mangled by the said horses and car, then being the property of the said defendants, and in their service, so that she died on the same day. And so the plaintiff says, that the said defendants, on the day last aforesaid, at the city of New York aforesaid, by the wrongful act, negligence, and default of themselves and their agents and servants, ran over and crushed and mangled the said Hetty Downie, and caused her death.</p> <p>And the said plaintiff further says that such proceedings were had before the surrogate of the county of New York, that afterwards, on the sixteenth day of June, 1849, he the said plaintiff, was duly appointed by the said surrogate, administrator of all and singular the goods, chattels, and credits, which were of the said Hetty Downie, deceased, as by reference to the letters of administration, issued by the said surrogate, and now in the possession of the said plaintiff, and which he is ready to bring into court, will more fully appear.</p> <p>That an action has accrued to the said plaintiff, as administrator as aforesaid, to demand and have of and from the said defendants compensation in damages for the injury done to the next of kin of the said Hetty Downie deceased, by the wrongful act, negligence, and default of the said defendants, their agents, and servants, in causing the death of the said Hetty Downie, deceased.</p> <p>Wherefore, the said plaintiff, as administrator as aforesaid, demands judgment against the said defendants for the injury, and that they may be adjudged to make" the said plaintiff, as such administrator, compensation in damages therefor, to the amount of five thousand dollars, besides the costs of this action.</p> <p>David Graham, Plaintiff s Attorney.</p> <p>The answer having put in issue the allegations of negligence, the cause was tried several times, and finally the plaintiff obtained a verdict for $1,300. The child was a girl six years and ten months of age, and was killed in attempting to cross the railroad track diagonally, as one of the long cars of the defendants, drawn by four horses, was passing in one direction, and a small city car was approaching in the other.</p> <p>There was evidence that the child was a remarkable proficient in music. The next of kin, for whose benefit the suit was brought, was her mother.</p> <p>The additional facts, rulings upon questions of evidence, and directions to the jury, so far as material, are sufficiently disclosed in the opinions.</p> <p>Daly, J., who presided at the trial, having denied a motion for a new trial, made by the defendants at special term, the cause came up on appeal from the order entered upon that decision.</p>

Euggles, Esq., referee. The action was to recover the alleged consideration for a parol license, granted by the plaintiff, to insert, into the wall of his house, the beams of a building in course of erection by the defendant. It was alleged in the answer that the plaintiff had promised, not only to grant the license, but that the wall should be maintained perpetually as a party wall, with certain covenants in relation thereto.

The plaintiff was an assignee of one of numerous laborers, employed by the defendant in Hew York, to work upon a railroad on the isthmus of Panama, and brought this suit for wages and money paid, at Havy Bay, for board, chargeable to the defendant by his contract.

This action was brought in the Marine Court to recover damages for unlawfully detaining personal property.

Action by a trustee, under a- general assignment for -the benefit of creditors, to recover a debt due the assignor.

Appeal by the defendants from a judgment rendered by the Marine Court, on the verdict of a jury. The facts relating to the point decided appear in the opinion.

Oh the return'of a summons, issued from the First District Court, the parties appeared by counsel and joined issue in an action for negligence. The trial was adjourned, and the parties again appeared and took a further adjournment to an appointed day, at nine a.m., when the plaintiff produced his testimony and recovered judgment in the defendant’s absence..

Appeal by the plaintiff from a judgment entered in the defendant’s favor, by the Third District Oourt, The complaint was “ for services rendered by the plaintiff, as the agent of the defendant, or in his employ, and at his special instance and request, in endeavoring to .procure the purchase ” of certain premises.

■ This was. an appeal by the defendant from, a judgment rendered in-the plaintiffs’favor upon-' the verdict of a- jury.

This cause was tried in the Marine Court, by a judge without a jury, and came up to this court upon a notice served by the defendant, specifying, among other grounds of appeal, that the trial was on the 5th of December, 1853, and that no decision was made until the 14th of the same month, when a judgment was entered for the plaintiffs.

This .cause came before the court on the plaintiffs’ appeal from a judgment of the Marine Court in favor of the defendant. The facts appear in the opinion.

<p>This action was commenced by attachment, in the Marine Court, by the assignee of a seaman, against the owner of a brig. The complaint alleged that the seaman, “ on the 4th of August, 1853, shipped on board the ‘ Benjamin L. Swan,’ at New Haven, for a.voyage to divers ports and places, thence to the West Indies, thence to the port of Savannah, being a port of a discharge, where the voyage terminated ■ by the vessel being unseaworthy, and where the plaintiff’s assignor was in fact discharged by the master,” and the plaintiff claimed judgment for a specified sum for wages. The defendant pleaded the general issue, and set up a desertion by the seaman, at Savannah, during the continuance of the voyage.</p> <p>The grounds of the plaintiff’s claim and the case established on the trial are stated in the opinion.</p> <p>The court below rendered judgment for the plaintiff, from which the defendant appealed.</p>

<p>The pendency of another action, in favor of the defendant against the plaintiff, for the recovery of damages for breach of contract, will not prevent a recoupment of the same damages by way of defence to a subsequent action, brought by the plaintiff against such defendant upon the same contract.</p> <p>It seems, that the rule in regard to set-off is the same—viz., that the pendency of a prior action for a defendant’s claim does not prevent his using it as a set-off, even if his prior action has progressed to a verdict.</p> <p>It seems, that it is no objection to a plea of set-off, that the defendant has brought an’ action against the plaintiff for the same sum, even although the plaintiff has paid the money into court in such former action.</p>

<p>Appeal by the defendants from a judgment of the First District Court. The opinion states the case.</p>

Tots action was brought by the owners of a steamboat, to recover damages for injuries suffered by a collision with a ferry boat, belonging to the defendants. It appeared that the plaintiffs’ steamer had left one of the slips on the easterly side of the Hudson Biver, at the city of New York, bound to Albany, and that the defendants’ boat had come from a wharf at Hobo-ken, on the westerly side of the river, bound to New York.

<p>Actioh to recover the price upon a sale and delivery of coal. The defendant answered by pleading in effect the general issue, and a judgment rendered against the plaintiff in a former suit for the same cause of action, against this defendant and one Samuel Pim, as co-partners and joint debtors.</p> <p>Judgment was entered for the plaintiff. The defendant appealed.</p>

<p>Appeal by the defendant from the Marine Court, where the plaintiff recovered judgment. The substance of the pleadings and evidence are given and reviewed in the opinion.</p>

<p>Whether a defendant, in a district or justice’s court, appears and denies the complaint, or does not appear at all, the plaintiff “ must prove his case.” (Code, § 64, subd. 8.)</p> <p>Accordingly, where the plaintiff, in an action against the endorser of a note, merely proves the making of the note and the endorsement thereof, without showing demand of payment and notice of non-payment; he is not entitled to recover.</p>

<p>The act of 1858, article 4, § 5 (session laws of 1853, p. 446), and the act therein referred to—see articles 20 and 21 of act of 1833—session laws of 1833, p. 13), by which the violation of the ordinances of the corporation of the city of New York is declared a misdemeanor and made punishable by fine or imprisonment, etc., do not operate as a repeal of the penalty given by those ordinances, nor take away the right of the corporation to prosecute a civil action and recover such penalty to their own use.</p> <p>The right to pass by-laws, affix penalties, and sue for and recover them to their own use, is given to the corporation of the city of New York by their charter, and it is not to be deemed taken away by implication, unless the state law is irreconcilably inconsistent with the right thus given.</p> <p>If the state law and the whole ordinance can stand together, the former does not repeal the latter.</p> <p>Where the defendant does not appear on the trial in the court below, the appellate court will not be astute to discover defects in the plaintiff’s evidence, especially when it is not claimed that injustice has been done, nor that the appellant has any defence on the merits.</p>

<p>The plaintiff in this action having leased certain premises to one Phelps for nine years, from May 1st, 1852, the defendant, hy a writing at the foot of the lease, became surety for the payment of the rent to November 1st, 1853. The lease contained a provision that in case the building should be injured or destroyed by fire, the rent should “ cease until the premises were repaired or rebuilt.” The buildings burned down on the 24th of June, 1853.</p> <p>This suit was brought in the Marine Court to recover thé rent of the quarter ending August 1, 1853, and the rent accruing on the first of November, 1853, making a deduction for the period which, as the plaintiff conceded, elapsed after the fire before the rebuilding was completed. Interest was charged from the respective quarter days. The plaintiff demanded but one month’s rent of the last quarter, although he claimed that the buildings were wholly restored on about the 18th of September. There was testimony, however, that the reparation was not complete until after the first of November.</p> <p>The defendant insisted : 1, That by the terms of the lease, the destruction of the building created a forfeiture of the rent for the whole quarter in which the fire occurred; 2, That the lessee had been evicted, and also that there had been a surrender by him and an acceptance of such surrender by the landlord; and 3, That the terms of the lease had, in effect, been so altered as to exempt the surety from liability.</p> <p>The facts were not very clearly defined in the evidence. It would appear, however, that in October, at about the time the premises were ready or nearly ready for reoccupation, the lessee, Phelps, desired not to resume possession; that consequently, the landlord, lessee, and surety, with one Jennings, who wished to obtain a lease, met for the purpose of making some arrangement, and in this interview it was proposed that the rent which had accrued should be adjusted and paid and a new lease be given to Jennings; that, in the presence of the other persons above mentioned, Jennings took the key from the place where it was hanging in the landlord’s place of business, with the avowed purpose—to which no objection was made— of taking possession of the building, and he immediately after-wards did so by putting certain machinery therein; that no use was made of the machinery, Jennings expecting to receive a lease in November; that on the occasion above stated, the original lessee’s proposal to surrender was distinctly made; that no agreement having been consummated respecting the back rent, the lessee and surety did not receive the release which they had expected to obtain, and the landlord did not execute a lease to Jennings; that in November, 1853, Jennings, refusing to vacate the building, was summarily dispossessed by the landlord, leaving the premises without any actual occupant..</p> <p>-. This action being brought to recover the rent as above claimed, the defendant recovered judgment, from which the plaintiff appealed. The lease itself was not annexed to the return from the court below, but there was no controversy as to its terms in the argument of the appeal.</p>

This was an application, under § 366 of the Code, to set aside or suspend a judgment for the plaintiff, rendered by default in the Marine Court. The defendant insisted, in view of the circumstances stated in the opinion, that “manifest injustice had been done,” and that his default was satisfactorily excused.

This suit was commenced, in the Fourth District Court, by a summons, which required the defendant “ to answer the complaint of the plaintiff for professional services.” The defendant having failed to appear, an inquest was taken, in which the plaintiff proved that he had acted as the defendant’s attorney and counsel in procuring his discharge in bankruptcy, and also in successfully opposing the motion of a creditor of the defendant to revive an old judgment against the…

This action was brought to recover $40 in cash, and also the value of certain crates of bottles. The plaintiff alleged that he had passed to the defendant the note of one Prescott, amounting to $343 50, for which the defendant had agreed to deliver forty crates of bottles, and pay $40 in money; and that after delivering twenty crates, the defendant had refused to deliver, more, and had neglected to pay the $40.

This was an application for a new trial, under § 366 of the Code. The defendant having suffered judgment by default in one of the district courts, produced affidavits, to the effect that he and his counsel had been prevented from appearing on the trial below, by engagements elsewhere. The nature of these engagements did not appear.

The action was brought by warrant, but the return did not show that any proof had been required, before the issuing of the warrant, that either of the plaintiffs or the defendant was a non-resident of the city and county of Eew York, and there was nothing from which to infer that security had been given, upon the commencement of the suit.

The cause having been tried by a jury and a verdict having been rendered for the plaintiff, the defendants made a case and moved thereon for a new trial, which was denied at a special term. Pending an appeal therefrom, to the general term, the plaintiff docketed a judgment upon the verdict for $1,450 53, and served a notice thereof upon the defendants, who thereupon moved to vacate the judgment and notice for irregularity.

<p>Action by a steamship company, for freight upon goods consigned at Havre, in one of their vessels, to Messrs. Caffe and Cutter, importers, in New York. It was provided in the bill of lading that the goods should be delivered to the consignees, or to their assigns.</p> <p>Upon their arrival at this port “ the goods were placed in the bonded warehouse, as was customary.” The plaintiffs had previously brought, in their vessels, goods for Caffe and Cutter, who had invariably received them from the public store without immediate payment of freight, bills therefor being subsequently made out and collected. After removal to the public warehouse, no lien had ever been claimed by the shippers, and the consignees had always received goods from the collector of the customs without paying freight thereupon, and without obtaining any release or permit from either the plaintiffs or the consignors.</p> <p>While the goods now in question were lying in the public store, the. consignees became insolvent, and executed to the defendant a general assignment in trust for the benefit of creditors. Having thus been constituted a general assignee, the defendant procured the blank endorsement of the consignees upon the bill of lading, and by the direction of the collector received the goods upon paying the duties. The usual affidavits at the custom house mentioned the consignees as the owners, and stated that the defendant was acting in the character of assignee.</p> <p>The plaintiffs afterwards made out, in the names of the consignees as debtors, and presented to them, a bill for the freight of these goods, and of others previously transported in another ship. Such bill being unpaid, they brought this action against the defendant to recover the freight from him.</p> <p>On the trial, a statement of facts was agreed upon by the parties, in substance and mainly in form as above recited ; and the question to be determined was, Whether the defendant had rendered himself, as regarded the plaintiffs, personally liable for the freight; or whether, on the other hand, the ship owners were left upon the same footing as other creditors of Caffe and Cutter, under the assignment.</p> <p>The plaintiffs recovered, and the case now came before the court on appeal from a judgment entered in their favor against the defendant.</p>

The plaintiff, in his own right and as assignee of one J. T. Hallett, sued the defendant in the Fourth District Court, to recover the commission mentioned in the following instrument. New Tokk, Sept. 23d, 1852. “ I agree to pay Messrs.

The complaint in this action alleged that, “by false and fraudulent representations, and with intent to defraud the plaintiff of certain goods,” which were described, the defendant Sloan had obtained the possession thereof; that the plaintiff was induced to deliver the goods by false and fraudulent representations, and by promises by Sloan that he would pay for them, whereas he had no intention of payment, but obtained the possession with intent to cheat and defraud; that…

<p>This was an appeal, by a surety upon a landlord and tenant’s agreement, from a, judgment for rent, rendered against him in one of the lower courts. The facts, upon which the points now determined arose, appear in the opinion. (a)</p>

The defendants were sued in the Sixth District Court, as the proprietors of a line of stages, for injnri.es to a wagon owned by the plaintiff, caused, as was alleged, by the negligence of the defendants driver. .

Appeal by the defendant from a judgment of one of the justices’ courts, upon the ground, mainly, that the plaintiff’s attorney, whose authority to appear was disputed in the court below, had produced insufficient evidence of authority to prosecute the action. The proof introduced upon the point in question is stated in the opinion.

This was an appeal from an order, entered at a special term, denying the defendants’ motion to vacate a judgment obtained in this court. The plaintiffs were a foreign corporation. Neither defendant appeared in the cause.

This cause came up to the general term in the form of an appeal, by the plaintiff, from an order directing a special reference to take and state an account. The appeal was submitted upon the pleadings and a draft order, with points of counsel; but no order had been entered nor papers filed with the clerk of the court.

Motion by the plaintiff to dismiss an appeal from one of the lower courts, upon the ground that no notice of appeal had been served. The application was founded upon affidavits of the plaintiff and of the attorney who had appeared for him on the trial below, stating generally that a service of such notice had not been made.

The plaintiff in this action, according to the testimony adduced by him on the trial, purchased, at the defendant’s store, various articles of cabinet furniture, each for a specified price, which was paid. The whole having been delivered, the plaintiff, upon discovering that one article varied from that agreed upon at the sale, returned it to the defendant and brought this suit to compel him to refund the amount paid for the article in question.

From a return made by the justice of the First District Court, it appeared that this action was brought to recover the price of a picture purchased by the defendant at an auctioneer’s sale, and that the only witness called was the defendant himself, who testified, upon a cross examination by his counsel, that the price to him was enhanced by a bid of another person in attendance at the sale, who afterwards proved to have been the vendor himself.

The complaint in this action was filed by the plaintiffs, as trustees under a general assignment, executed by an insolvent firm for the benefit of creditors; and alleged*, in substance, that the defendant, as a special partner, formed, with three other persons, a limited partnership, under the firm name of McIntosh & Henderson, pursuant to the provisions of the Revised Statutes of this state; that all the partners signed and acknowledged the usual certificate, wherein it was…

This was an action in the nature of the former action for waste, and was brought in this court under §§ 450, 451 and 452 of the Code of Procedure. The plaintiffs were entitled to the reversion of the property in question, and the defendant was a tenant in possession, the former having purchased the premises while held by the latter under an unexpired lease from a former owner.

This action was brought against the makers of a promissory note, who answered by a general denial of the complaint. At the trial, the plaintiff’s counsel produced the-note—testified that he had been duly authorized by him to institute the action—and proved successive endorsements by the payee and by the several subsequent holders.

This action was against common carriers and owners of a steamboat running between Sew York and Albany, and was brought by the plaintiff as the assignee of the claim of a passenger, for the value of baggage lost through the alleged negligence of the defendants. The cause was prosecuted in the Sixth District Court.

Appeal by the plaintiff from a judgment against him, in the Fifth District Court, in an action for the detention of personal property. The case is stated in the opinion.

Beview of a judgment in favor of the payee against the maker of a promissory note, executed under the circumstances stated in the opinion.

Action for a malicious prosecution. The defendant, being the chief clerk in a store from which goods were supposed to have been stolen, suspected the plaintiff of the alleged theft, and made, to a committing magistrate, or to some other officer, such application or communication as led to the plaintiff’s arrest, upon a charge of grand larceny. He also accompanied an officer who searched the plaintiff’s house for the lost articles.

■ This was an appeal from a judgment in favor of a broker, for commissions upon the alleged negotiation of a loan. The facts appear in the opinion.

Action in the Third District Court, for the detention and loss of personal property. From the evidence returned to this court, it appeared that upon the plaintiff’s arrival in this city— from what place and with what purposes it was not stated— a trunk, belonging to him, containing wearing apparel, was taken to a house kept by the defendants. The business of the defendants was not shown. There was room for an inference that they were boarding house keepers.

Ur December, 1836, one Ann S. Fabian and the defendant executed a deed, which recited that the latter, as the executor of one Broughton, deceased, might have incurred some liability in the management and settlement of the testator’s estate, and that said Ann S. Fabian, having as legatee under the will received a moiety of the property devised, had agreed to indemnity the defendant from such liability and from all loss to be incurred on her account.

<p>This cause came before the court at general term, on appeal, upon a case made, from a judgment entered upon a report of referees against the defendant for $6,786 01.</p> <p>The complaint was originally filed by one Henry Colton, as plaintiff, and alleged that “ on the various days and at the various times,” which were set forth, he loaned to the defendant different sums of money, which were also respectively mentioned in connection with the several dates enumerated, and for which the defendant is indebted to him, etc.</p> <p>The answer joined issue upon the averments of the complaint, and set up several special defences and a “counter claim.”</p> <p>After the pleadings were served, Colton assigned the cause of action to Reuben Parsons, who was substituted as the plaintiff of record, by an order of the court.</p> <p>With this preliminary statement, it is sufficient to refer to the opinion, wherein the further facts relating to the questions determined are clearly presented.</p>

Review of an order modifying an injunction. The complaint was divided into three counts. The first claimed to recover $22,117 as a balance remaining unpaid of $30,000, which the defendant was alleged to have received from persons unknown, for the use of the plaintiff, and as his agent, being the proceeds of a sale of two thirds of the ship “ Mischief,” such two thirds having belonged to the plaintiff, and having been sold by the defendant as his attorney.

<p>Where the owner of a lot contracted with a carpenter for the erection of a house, including, among other details, the painting, and the sashes and blinds, and an action was brought against the owner by a third person to recover for the sashes and blinds—such third person alleging that he made them by the owner’s request and on his credit; held, that proof that the owner employed the person who did the painting, was not competent, and did not tend to establish the employment, in like manner, of a different person from the original contractor, to make the sashes and blinds.</p>

This was an appeal by the defendant from the Marine Court. The alleged grounds of the appeal were, principally, that the person by whom the summons was served, and who was deputed for that purpose, was under the age of twenty one years ; that the deputation, signed by the justice, did not state that it was made at the plaintiff’s request, nor that the individual was a fit and proper person; and that such deputation was not endorsed upon the summons or process itself.

<p>In the Marine and District or Justices’ Courts, a plaintiff may present his cause of action in as many aspects as he can, if they are not inconsistent with each other, and all exhibit causes of action which may be joined.</p> <p>A parol agreement, first, by the plaintiff to let a store to the defendant—secondly, by the defendant to employ the plaintiff as clerk—and thirdly, to sell and deliver goods to the latter, the whole forming one entire parol contract; may be proved and insisted upon, notwithstanding that a bill of sale of the goods is after-wards made, which contains nothing in relation to the hiring of the store or the agreement to employ the plaintiff as clerk. Such bill of sale will lie deemed a part performance of the parol contract and not a reducing of the whole contract to writing.</p> <p>A father is entitled to recover the wages of his minor son.</p> <p>Where a witness for the defendant testified to the amount of sales made per day by the plaintiff, for the purpose of proving that he neglected the defendant’s business in a store of which the plaintiff had charge as a clerk; held, that it was not incompetent, upon cross examination, for the plaintiff to inquire the amount per day sold in another and larger store of the defendant in the neigh-hood, in charge of the defendant personally—where a greater number of clerks were employed—for the purpose of testing the memory of the witness and affecting his credibility.</p>

This action was brought by a married woman, for the rent of a room in a house occupied by the plaintiff and her husband. In his answer, the defendant objected to the plaintiff’s right to maintain the suit, and also pleaded a general denial, with a set off of moneys alleged to have been loaned to her. The evidence is sufficiently stated in the opinion. The plaintiff recovered a judgment in the Third District Court. The defendant appealed.

Action against a surety, for rent due upon a lease. The case came up upon the defendant’s appeal from a judgment of the Marine Court. The opinion fnlly states the facts.

This action was commenced in the Marine Court, by a summons returnable December 28, 1853. On that day the parties appeared and progressed in the trial of the cause, examining several witnesses for the plaintiff, when an adjournment was taken to January 6, 1854.

The defendants, being engaged in a flour commission business, hired from the plaintiff, for one night, a canvas cover, fifty feet in length by twenty five feet wide, to be spread over flour on board a canal boat, lying at a wharf in the city of ¡New York. The price to be paid for the use of the canvas was the “ customary charge,” which, for twenty four hours or less, was proved to be one dollar. Through some oversight, the cover was not returned.

Actiou against the owner of a dog for injuries to cattle belonging to the plaintiff, occurring under the circumstances mentioned in the opinion. The defendant suffered judgment in the Sixth District Court, and appealed.

Appeal by the plaintiff from, a judgment for a nominal sum, rendered against the defendant in the Sixth District Court, in an action for an assault and battery. The questions determined arose upon the rulings of the court below, in rejecting evidence under the circumstances appearing .in the opinion.

<p>Where cattle are brought to market by a drover and are sold to a butcher to be slaughtered, if there be neither fraud nor express warranty, no warranty of soundness is implied, and the maxim, caveat emptor, applies. (a)</p> <p>Accordingly, where cattle brought by a drover to the city of New York from a distant place and here sold to a butcher, were, upon being slaughtered, found to have been bruised on the journey; it was held, that in the absence of any proof of misrepresentation, concealment, or even knowledge of the injury sustained by the cattle, the vendor was not liable without an express warranty that no such defect existed.</p>

This action was brought to recover damages sustained by the plaintiff and by members of his family, in an omnibus owned by the defendants. While the omnibus was being conveyed upon its ordinary route, through Broadway, in the city of New York, a lamp carried therein exploded. The plaintiff’s face was more or less burned, and the dresses of his wife and two minor daughters were injured, as witnesses testified, to the extent of about thirty-five or forty dollars.

<p>Trtr action was brought in the Fifth District Court, by a farmer at Oyster Bay, Long Island, upon a special agreement for keeping a horse.</p> <p>The case came before this court upon a motion by the defendant, that a judgment by default, rendered against him below, be set aside or suspended, and a new trial ordered.</p> <p>The application was founded upon the affidavits of the defendant and of his attorney, from which it appeared that the defendant, being engrossed in business as an agent of a screw dock company, and being also pressed by duties as a juror in the court of sessions, mistook, in reading the summons, the return day thereof, and understood the time to be Thursday, the 18th of Hay, when in fact it was Tuesday, the 16th; that he accordingly directed his attorney to attend on the 18th, which the latter did, and discovered that judgment had already been entered.</p> <p>The defendant’s case, on the merits, rested exclusively upon his own affidavit, and was, that the horse was the property of one Ketchum, with whom, through the defendant as an agent, and not with the defendant personally, the agreement was entered into; that the conditions of the agreement in respect to feeding the horse had not all been complied withand that the animal had been ill treated and injured by work. A claim for the unlawful use of the horse was also insisted upon in bar of the plaintiff’s recovery.</p> <p>These averments were all controverted by the affidavit of the plaintiff, sustained by affidavits of a servant who had the care of the horse, and of a clerk who was present when the alleged agreement was made.</p>

Action for a libel. One of the defendants, Moses S. Beach, was the publisher of “ The New York Sun,” and the other, Joseph W. Stagg, the author of an article communicated to that newspaper, which charged that a theft had been committed by members of a certain hose company. The company was mentioned; but the particular members to whom it was intended to impute the crime, were not specified.

Appeal by the defendant from a judgment rendered against him in the Fifth District Court. The facts are stated in the opinion.

The complaint in this action set forth a written special agreement between the plaintiff and the defendants, which commenced by reciting, that the defendants were the owners of two power looms, with fixtures, for manufacturing elastic and other webbing, the value of which remained to he ascertained.

This was an action in the nature of trover, tried before the justice of the Second District Court and a jury. The opinion states the facts as established by the evidence. The trial resulted in a verdict and judgment in favor of the plaintiff. The defendant appealed.

This case came up from the Third District Court upon the plaintiff’s appeal from a judgment rendered upon the verdict of a jury in favor of the defendant. The facts, so far as disclosed in the papers, appear in the opinion.

This action was for rent, and was founded upon an agreement written beneath a lease from the plaintiff to one Ettinger, in which agreement the defendant, in consideration of the letting and of one dollar, became “ surety for the punctual payment of the rent and performance of the covenants in the foregoing lease mentioned to be paid and performed by S. Ettinger,” and agreed, “ if any default should be made therein, to pay unto Lewis Damb (the plaintiff) such sums or sum of…

Tras action was brought to obtain damages for injuries suffered by the plaintiff, from the alleged negligence of the defendants, who were employed in the erection of buildings. The cause was prosecuted in the Marine Court. The plaintiff failed below to recover against the defendant Beaver, the carpenter of the buildings, but obtained a judgment for $350 against the defendant Clark, the mason, who appealed to this court.

This was an appeal by the defendant, from a judgment for $500, rendered against him in the Marine Court, upon the verdict of a jury. The nature of the action, and the facts elicited on the trial, are fully presented in the opinion of this court.

<p>This case came up upon an appeal by the defendants, from a judgment rendered in the Fifth District Court, in favor of the plaintiff, for his salary as a policeman for a period during which he was detained from duty by sickness.</p> <p>On the trial, the captain of the. patrol district to which the plaintiff was attached, testified, that he saw the plaintiff on his post in Broome street in the early part of February, 1854; that he spoke to him, and that the plaintiff did not appear to hear, but seemed languid, weak, and unable to move “ as he ought to do.” Another witness testified, that in January preceding, • the plaintiff had been exposed while upon official duty at a fire, and that he thought the plaintiff’s disease arose from such exposure.</p> <p>One of the physicians of the police department testified, that the plaintiff was reported sick, and that he had called at the plaintiff’s house twice, and was told that the plaintiff was not at, home, but that he finally saw him about the 1st of March, 1854, and that he found the plaintiff’s disease to be a chronic affection of the throat.</p> <p>Three physicians were examined on the part of the plaintiff, who testified, that the plaintiff’s affection was quinsy, and one of them, the family physician of the plaintiff, testified that the plaintiff had no chronic disease.</p> <p>The defendants objected to the jurisdiction of the court, on the ground that the mayor of the city had the sole power to grant or refuse applications for “ sick pay” under the acts of the legislature constituting the police department.</p> <p>It appeared that there was a general order of the department making it incumbent upon every member of the police department claiming pay, when absent in consequence of sickness contracted in the public service, to make an affidavit setting forth the date when he was taken sick, the duration of such sickness, and that the same was consequent upon the' faithful discharge of a policeman’s duty; also a certificate from the captain of his district and physician of the department, stating cause of absence, nature of disease, and other particulars.</p>

These actions were prosecuted by the plaintiff, as charterer of the brig “ Ophir,” to recover from the respective defendants the freight of certain goods transported therein from the island of Jamaica to New York.

This action was brought by a receiver, appointed in proceedings supplementary to execution against a judgment debtor, to recover $1,000 as the value of certain property purchased by the defendant at a sheriff’s sale. On the 17th of May, 1849, one William B. Sheehan, as collateral security to certain promissory notes, confessed two judgments, one to the defendant, for $612 15; the other to one Ludlum, for $523 33. The latter was assigned to the defendant, February 1, 1850.

Ib April, 1851, the defendant was in possession of the premises, No. 36 Stone stréet, in the city of New York, under an assignment to him of the unexpired term of a lease, originally granted to one Kothe, for five years, from May, 1848. The lease contained a covenant of reentry, in the event of default in the payment of the rent, and a provision that all alterations, when made, should be deemed fixtures and a part of the freehold.

This case came up from the Marine Court, upon the plaintiff’s appeal from a judgment dismissing his complaint. The facts are detailed at length in the opinion delivered by this court.

The defendant, being in Europe, wrote early in the spring to his'friend, one Benedict, in New York, requesting him to hire a place in the country, for the defendant’s use during the summer.

The complaint in this action was filed' by the administrator of an estate, to recover $3,229 64, and interest, upon three causes of action, all founded upon contract: 1, Upon a promissory note, made by the defendant and delivered to the intestate, for $500 ; 2, For five payments, of $100 each, made by the decedent to a son of the defendant, upon the written request or order of the defendant; and 3, For moneys, amounting to $2,229 04, paid by the decedent for principal and…

This case and that instituted by the same plaintiffs against James Wright and others, reported at p. 453 of this volume, were litigated by the defendants to test the constitutionality of certain statutes respecting insurances upon property within this state.

This action was brought upon a bond executed to the Fire Department of the city of New York, in the penal sum of $1,000, by the defendant, James Wright, as principal, and by the other defendants as sureties.

Action by an execution creditor, against the sheriff, for a false return. On the 26th of September, 1850, Joseph Bradley executed to Joel W. Mason a mortgage for $546 19, upon a part of his household furniture; and, on the 29th of October following, executed to Richard Tweed, jr., a mortgage for $500 98, upon the remainder of the furniture.

The complaint in this cause alleged, simply, the sale and delivery, by the plaintiff, of goods and merchandise of a specified value ; that the defendants, as copartners, were the purchasers, and had refused payment; and concluded by demanding judg-ment for the value aforesaid, and interest from the day of sale.

Action for an assault and battery. A witness for the plaintiff testified, that the parties were both contractors, and were walking together upon a public sidewalk, when he saw the defendant, with his right hand, strike the plaintiff, whose hands were in his pockets, and knock him down twice. Another witness stated that he observed the plaintiff down and endeavoring to rise, when he was felled by a blow from the defendant.

<p>A party who purchases goods arriving in bond, is not liable for demurrage of the ' vessel wherein they were transported to this port, for detention occurring before the vendor obtains from the custom house a permit for the delivery.</p> <p>The purchaser may refuse to receive the goods until the proper papers are obtained from the custom house, without incurring any liability for demurrage, although the removal of the goods might have been sooner effected by the illegal consent of a subordinate government officer.</p> <p>Whether the amount recovered by the owners of the vessel, against the consignees of the goods, in an action for demurrage, forms a rule of damage in an action by the latter against a purchaser charged with delay in unlading? Quere.</p>

Application by the defendant to compel the discovery of papers in the hands of an administratrix, prosecuting an action which had been instituted by an intestate, in his life time. The petition stated, that the suit was for $17,000, alleged to be due for moneys loaned, and also upon upwards of twenty promissory notes, running through a period of nine years.

On the 18 th of February, the plaintiff and the firm of A. Palmer and Co. entered into a written agreement whereby the former became their clerk, with specified duties, and at a stated salary.

The defendant, who kept a packing establishment, was in possession of certain goods, belonging to one Weiss, who had directed him to ship them to California. While the defendant held the goods, proceedings were taken, as detailed in the opinion, to effect a levy under executions issued upon judgments obtained against Weiss by two judgment creditors. After the alleged levy, the defendant stated that he should retain the property until he received a bond of indemnity.

It appeared from the imperfect testimony spread upon the record in this case, that the plaintiffs manufactured and delivered to the defendants a large number of drawers, which -were fitted into an iron safe; that the plaintiffs afterwards executed to one Terhune an instrument in writing, whereby they assigned to him a claim, of which they regarded themselves possessed, for the price or the value of the drawers, alleging that they had sold the same to the defendants; that…

Appeal by the plaintiff from a judgment of the Marine Court, given in favor of the defendant, by Justice McCarthy. The opinion fully states the facts.

Appeal by the plaintiffs in an action for goods sold. The judgment which was rendered in one of the lower courts, allowed to the defendant the set off and counter claim referred-to in the above head note.

Action for rent due by the terms of a lease. The tenant, during the demised term, abandoned the premises, and delivered the key to the landlord’s agent, who accepted it, remarking, “I will receive the key, but not the premises.” The defendant claimed that accepting the key was an acceptance of his surrender of the premises, and operated to release him from his covenant to pay rent. The Fourth District Court gave judgment for the plaintiff. The defendant appealed.

Action in the Marine Court, by an indorsee against the defendant as indorser of a promissory note, given under the circumstances stated in the opinion. The indorsement was in this form: “ Thomas E. Allen, Admr.” and the plaintiff sought to charge the defendant personally. The judgment below was for the defendant, and the plaintiff appealed.

The facts appear in the opinion of Ingraham, First J., filed at general term.

Appeal by the owner of a sloop from a judgment rendered in. the Marine Court in favor of the assignee of a claim for a seaman’s wages. The proofs ■ upon which the appeal was determined appear fully in the opinion.

<p>A package delivered by a traveller to be carried on a railroad to his place of destination, is not necessarily to be considered baggage, if not so represented by him and if not so put up as to deceive.</p> <p>Although, under such circumstances, the package is carried by the same train that conveys the passenger, the railroad company may charge freight thereon, and the company will be liable, as common carriers, for the loss thereof, where no | fraud is practised by the owner by representing or treating it as baggage.</p> <p>The delivery to the railroad carrier, is not sufficiently proved by stating that the package was given to a man at the station supposed by the witness to be a baggage master. The supposed officer or agent of the company to whom the delivery is made, must be proved to be such, or circumstances be given showing a sufficient delivery, such, for instance, as that the article was placed in a car or other depository provided for the reception of like property.</p>

The defendant was sued in this court, by husband and wife, for injuries sustained by the wife from the bite of a dog.

This was an appeal by the defendant from a judgment rendered in the Marine Court, upon the verdict of a jury in the plaintiff’s favor, in an action for the wrongful taking and detention of personal property. The points raised on the appeal related, first, to the form of the original process, whereby the defendants were brought into the court below; and secondly, to the sufficiency to sustain the verdict of the evidence adduced at the trial.

Appeal by the plaintiff, from a judgment of the Marine Court in favor of the defendants. The grounds of the appeal, and the facts relating thereto clearly appear in the opinion.

This case came up from the Marine Court, on appeal by a tenant from a judgment for rent. The grounds of objection to the judgment are stated and sufficiently illustrated in the opinion.

Motion after judgment in an action under the mechanics’ lien law.

<p>The plaintiffs offer testimony to show that the object of the owner in anticipating the periods of payment,, and in making the advances before the performance of the work, was to defraud the plaintiffs and prevent them from availing themselves of the provisions of the-mechanics’ lien law.</p>

■ This was an appeal by the defendant from a judgment rendered in favor of the plaintiff, upon the report of a referee in an action prosecuted under the act of 1851, as amended in 1855, for the better protection of mechanics and others. ■ The notice to create the lien, filed with the county clerk, pursuant to the sixth section of the statute of 1851, was as follows : “ To Richard B. Connoly, Esq., clerk of the city and county of New York: - . “ Sir—Please to take notice,…

This case came before the court on an appeal by the defendants to the general term, from a judgment of sale, under the mechanics’lien law of 1851, entered upon the report of a referee. The report was the result of a second trial, the plaintiff having previously obtained a judgment, which was reversed at the general term held in May, 1854. The decision then made is reported in 1 E. D. Smith, 729.

The complaint in this action was filed pursuant to a proceeding to enforce a claim under the mechanics’ lien law of 1851, and alleged, that on the 12th of June, 1855, the defendant Thomson, being the owner of certain premises, entered into a contract with the plaintiffs for the erection of a building.