Volume 3 — Sandford's Superior Court Reports

This was an action of debt on a bond for $250, dated January 13,1812, executed to the plaintiff Anderson, by Johnson as principal and the other two defendants as sureties, on suing out a writ of error from the common pleas of New York to the late supreme court, to remove a judgment recovered by Anderson against Johnson. The condition was in the usual form, that Johnson should pay the judgment below with costs and damages, in case the judgment were affirmed.

Tuts was a motion to set aside the report of refereés, made in favor of the plaintiff in the above suit; on which the plaintiff contended, that by the reference, the suit was out of court, and that the court could not entertain the motion. The facts are stated in the ojfinion of the judge.

<p>Where the owners of a canal boat signed a contract in the form of a bill of lading, by which they agreed to deliver a quantity of wheat to the plaintiff at New York ; it was held, that parol evidence of instructions by the plaintiff's agent, on the same day and before the contract was signed, to send the wheat to a different party at another place, was inadmissible.</p> <p>The contract, being signed by the owners and not by the master, was not a bill of lading.</p> <p>A bill of lading has a twofold character. It is a receipt as to the quantity laden on board the vessel, and a contract to deliver the same at the place and to the consignee named.</p> <p>As a receipt, it is open to explanation between the parties, by parol evidence.</p> <p>But in its character as a contract it cannot be altered, varied, or explained by such evidence.</p>

<p>The first story, with the basement and sub-cellar, of a four story store, was leased to the plaintiffs; and the three upper stories to the defendant, at the same time; each with the appurtenances. The entrance to the upper stories was from the front, over a short entry leading to a staircase. This entry was separated from the residue of the first floor, by three folding doors, with bolts to fasten on each side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over which hatch a tackle and fall were placed, to elevate and lower goods, the wheel of which was in the attic, and it was worked by ropes passing down through the respective floors. The keeping of the folding doors open in business hours, was a great advantage to the occupant of the first floor. The opening of the hatch in that floor, obstructed the passage to the upper stories, unless persons passed through the folding doors.—In a contest as to the rights of the respective tenants;</p> <p>Held, 1. That the tenant of the first and sub-stories had the right to use the hatchway in the entry, and the tackle and fall, for depositing goods in the basement and cellar, and elevating them therefrom; making use of them in good faith, and not keeping ¡the hatch open unnecessarily. y</p> <p>2. That the tenant of the first floor had the right to keep the folding doors open, during business hours in the day time, free from the control of the tenant of the lofts; and that each had the right to close and fasten them at night.</p> <p>3. That the tenant of the lofts might pass in and out through the folding doors, when the hatchway was in use by the tenant of the first floor.</p>

<p>In an action of tort, where the jury have given such excessive damages that the court feel bound to set aside their verdict, the court may, in its discretion, instead of setting it aside peremptorily, give to the plaintiff the option of reducing his recovery to such a sum, which, if it had been the verdict, would not have been deemed unreasonable, by remitting the excess of the verdict beyond that sum; and on his só doing, may deny the motion for a new trial.</p> <p>So held in an action for injuries occasioned by being run over in the street by an omnibus, and the damages reduced from fifteen hundred to five hundred dollars.</p>

Demubkeb to a bill of complaint, filed in May, 1841, in the late court of chancery, and transferred to this court from the supreme court. The complainants are the executors of Thomas Gough, deceased; the defendants are the administrators and heirs of Daniel D. Tompkins, formerly governor of the state of Hew York, and vice-president of the United States.

This was an action upon a policy of insurance, tried before Saitoford, J., on the 24th, 25th, and 2fjth days of October, 1848.

<p>This was an action of assumpsit brought to recover the price or value of a quantity of lemons.</p> <p>At the trial before the Chief Justice in January, 1849, the plaintiffs proved that they were auctioneers, and as such, on the eleventh day of May, 1848, sold at public auction, in the city of Eew York, to the defendants, 884 boxes of lemons, at the price of twenty-eight shillings and six pence per box. That such lemons were actually delivered to the defendants on the thirteenth day of May, 1848, and about the same time a bill thereof was rendered by the plaintiffs in their names to the defendants. The sale was advertised a day or two. The lemons came in the schooner Gladiator, from a foreign port, consigned to Mr. Sus. He was present at the sale. One gentleman asked the auctioneer whether the cargo had not been previously sold at private sale, who then asked Mr. Sus whether it was so, and Mi'. Sus said, “no.” The plaintiffs’ counsel then made the following admission in writing, viz.</p> <p>“ The plaintiffs admit that the auction sale took place on the wharf, alongside of the vessel in which the goods were imported. Mr. Sus, the importer, on the morning of the sale, and before the sale, sold the goods at private sale to Miller & Parsons, the parties being on board the vessel. At the time of the public and private sale, the bulk of the goods were on board of the vessel, and samples thereof lay upon the wharf alongside of the vessel. The goods were previously advertised for sale at auction, at pier Mo. 9 Morth River, for that day at 11 o’clock, when the sale in fact took place.”</p> <p>It farther appeared that the lemons were sold at such private sale by Sus to Miller & Parsons, at. the price of three dollars per box. The entire cargo was sold at that auction sale, consisting of 2030 boxes of oranges, and 1310 boxes of lemons.</p> <p>The defendants proved that Miller & Parsons were present at the public sale. Several witnesses for the defendants testified that Miller bid on the lemons offered, on two or three different occasions. The auctioneer testified that he did not take his bid, and thinks that he did not bid. Both M. & P. were present when the auctioneer made the announcement that the goods had not been sold at private sale. Several witnesses for the plaintiffs, who were bidders at the sale, testified that they did not see or hear Miller bid. The lemons sold to others at the same price bid by the defendants. There was evidence that they were worth that price on the day of sale, and twelve days after-wards lemons sold at auction for twenty-nine shillings and six pence per box. In the fore part of May, lemons were worth from twenty-one shillings to twenty-two shillings and six pence per box. Two or three weeks after the sale, the auctioneer paid to the state the prescribed auction duties on the entire sale.</p> <p>The defendants called on the auctioneers, and made a tender for the lemons at three dollars a box. The defendants proved that one of the plaintiffs, (whose names were used in the suit for the benefit of the owners of the lemons sold,) said when the tender was made, that it was a fraudulent transaction, and he would wash his hands of it; but that he had no authority to receive less than the whole sum.</p> <p>There was a large number of bidders and purchasers at the sale of the oranges and lemons.</p> <p>On the testimony being closed, the chief justice decided that the private sale by Sus to Miller & Parsons, constituted no defence'to the action, if the auction sale were in other respects a fair sale of the lemons; and he submitted to the jury the following questions:—First, Was the sale at auction a fair sale? Second, If not, what was the fair market value of the lemons, at the time of the auction sale ?</p> <p>To this charge of the judge, the counsel for the defendants excepted. The jury answered the first question in the aifirmative, and found a verdict for the plaintiffs for $3291 09 ; being the amount of the defendants’ bid, with interest.</p>

<p>It is no defence to an action for a partial loss on a policy of marine insurance, that the expense of the repairs made, (for the amount of which the loss is claimed,) was defrayed by a loan made by the correspondent of the owner, on a bottomry of the vessel, and that the bottomry loan was realized by such correspondent after the subsequent total loss of the vessel, out of an insurance effected by him • on his bottomry interest, and no part of the loan was ever paid by the owner.</p> <p>To the extent of a bottomry outstanding on a vessel, (there being no personal liability of the owner for such bottomry,) the owner has not an insurable interest.</p> <p>After the making of a time policy of insurance on a brig, in which she was valued, the master executed a valid bottomry bond, which was outstanding when the brig was lost. Held, that by the bottomry, the interest of the insured to that extent ceased ; and that in an action for the loss, the valuation must be opened and reduced accordingly.</p> <p>Where a defendant pays money into court, applying a specified portion to one count, and another portion to another count, each count claiming a distinct cause of action, and the plaintiff takes the sums paid, though not in satisfaction ; the court, on its subsequently appearing that the defendant paid more on the second countthan he was liable to pay, cannot change its application, and apply the surplus on the other count.</p>

<p>Under the lien law of 1830, giving mechanics and laborers a lien upon buildings, the contractor disputing a lien notified to the owner, if unable to adjust the amount with the claimant, must tender to him a written agreement to submit to arbitration. A verbal offer to arbitrate will not suffice.</p> <p>If the lien creditor, in a suit against the owner, rely exclusively on the contractor’s having omitted to adjust or arbitrate within the time prescribed, the state of the accounts between the lien creditor and the contractor is of no importance. Whatever that may be, the owner is liable to pay the claim, if such omission be proved.</p>

<p>An actual change of possession of goods sold, in the statute of frauds, means an open, visible, and public change, manifested by such outward signs as render it evident that the possession of the owner, as such, has wholly ceased.</p> <p>The change must be such as to exclude the hazard of the seller’s deriving a false credit from the continuance of his apparent ownership.</p> <p>The party asserting the validity of a sale of goods, where there has been no actual and continued change of possession, must prove affirmatively that the sale was made in good faith, and without any intent to defraud creditors or purchasers ; and he must prove both of these propositions.</p> <p>If no such evidence be given, the law pronounces the conclusion of fraud, and the question of intent is not to be submitted to the jury.</p> <p>The question of fraudulent intent, which by the statute is made a question of fact, is to be submitted to the jury in the same manner as other questions of fact; that is, when affirmative proof is given on the side of the party claiming to rebut such intent.</p> <p>Good faith is proved by showing a valuable, and as the parties believed, adequate consideration, and that the sale was really intended to operate as a valid transfer of ownership ; but where this is shown, the party must prove in addition, the absence of a fraudulent intent, by facts or circumstances sufficient to rebut the presumption arising from the seller’s remaining in possession.</p> <p>The decisions of the late Supreme Court, in Collins v. Brush, 9 Wend. 198 ; Boanc v. Eddy, 16 Ibid. 523, and Bandallv. Coolc, 17 Ibid. 56; approved. They have not been overruled by the subsequent cases in the court for the correction of errors,</p>

This cause was transferred from the supreme court, and was heard on a demurrer to the bill of complaint. The facts are stated in the opinion of the court.

The bill in this cause was filed in the supreme court by the acting executors of James Roosevelt, late of the city of Hew York, deceased, for a construction of the last will and testament of the deceased, and the codicils thereto.

This was a hill to foreclose a mortgage. The suit was transferred from the supreme court. The defendant Graham alone appeared and answered.

The bill in this cause was filed in the late court of chancery, before the vice-chancellor of the first circuit, in Hovember, 1844, by Elisha Peck, John 0. Merritt, Anson G. Phelps, Runyon W. Martin, and Richard A. Reading, against Robert Elder and four others, in order to restrain them from erecting and putting in operation a large fat-melting establishment at the comer of Fourth street and First Avenue, in the city of New York.

This cause was brought to a hearing on the bill, and the answers of the several defendants. The facts, so far as they need be stated for the determination of the cause, were briefly as follows: In the month of June, 1847, Edward J. Mann agreed to purchase of Suydam, Sage & Co. one half interest in a large quantity of flour about to be shipped from Mew York to London, and to make advances to them on the other half.

Bill to foreclose a mortgage. The suit was originally commenced in the court of chancery, before the vice-chancellor of the first circuit. On the adoption of the new constitution, the cause passed into the supreme court, and was thence transferred to this court, in pursuance of the act of March 24,1849. The bill was filed against Henry Tates, the mortgagor, and against Joseph D. Beers and Thomas Gf.

TW bill in this canse was filed by John J. Palmer, as special receiver of The Mortii American Trust and Banking Company, to foreclose a mortgage executed hy the defendants, Watson E. Lawrence and wife, to the company, on the 20th of Sept. 1838, to secure the payment of the sum of $36,000 in one year, with interest, ■ payable semi-annually.

Assumpsit on a promissory note for $2,526, made by the defendant, payable to The Alliance Mutual Insurance Company, on order, at twelve months. The note was indorsed “ Alliance Mutual Insurance Company, Jas.

This was an action of covenant upon an instrument in wilting, in these words: “ Whereas, I have this day received from John W. Hoard, an assignment of a certain indenture of mortgage, hearing date the 31st day of October, 1843, made and executed by Charles W. Adams, and Henrietta his wife, to the said John W. Hoard, to secme the payment of two certain promisatory notes drawn by Charles W. Adams & Co., one in favor of Hugh Auchincloss & Sons, or order, for $576 98, dated…

This was an action of assumpsit, brought to recover damages for refusing to accept a certain quantity of linseed oil, to arrive, and imported in the ship Marcia, from London to Boston, and thence sent coastwise to Hew York, in the month of June, 1847, and sold by the plaintiffs to the defendants, through a broker by a bought and sold note. The cause was tried before Sahdfobd, J., in December, 1848.

These suits, involving substantially the same question, were argued together, on a case made in each respectively. The suit of Smith v. lynes, was an action of replevin, to recover forty-five pieces of carpeting.

This was an action brought to recover a balance due to the plaintiffs, as holders, from the defendants, as the drawers, of a bill of exchange for 50,000 francs, dated Feb. 24th, 1848, drawn by the defendants, merchants in Hew York, in favor of the plaintiffs, directed to Melun & Co., at Havre, and payable at Paris, sixty days after sight. The plaintiffs resided in Hew York.

<p>The hill in this cause was filed in the late court of chancery, to compel the Springfield Bank, to deliver up and cancel a note of $2,000, made by the plaintiffs, dated December 10th, 1845, payable at seven months, to Howard & Lathrop, or order; and in the meantime to restrain the bank from collecting the note. The cause was heard on pleadings and proofs. The facts appearing were as follows:</p> <p>Howard & Lathrop were manufacturers of paper, at South Hadley, in Massachusetts, who transacted their banldng business at the Springfield Bank, in Springfield, Mass. The plaintiffs were commission merchants in the city of Hew York, and frequently accepted bills for the accommodation of Howard & Lathrop. The latter failed in March, 1846. In December, 1845, previous to the 27th, the plaintiffs had accepted and paid such bills for H. & L.’s accommodation, to the amount of about nineteen hundred dollars. On the 27th December, 1845, the note in question was delivered by the plaintiffs to Lathrop, in Hew York, on his agreement to get it discounted and remit to them the avails to meet the amount of drafts so paid by them. Two or three days afterwards, Lathrop took the note to the Springfield Bank, and on the bank’s refusing to discount it, and furnish him the avails in money, he delivered the note, indorsed by H. & L., to the bank, and received from the bank a draft for $2,000, drawn by H. & L. on the plaintiffs, but not accepted by them, dated December 13th, 1845, at six months, which the bank had discounted for H. & L. on the 15th December.</p> <p>At the time the bank received the plaintiffs’ note and gave up this draft, the bank held certain promissory notes delivered to them by Howard, as collateral security for the acceptance of any drafts that might be drawn by his firm of Howard & Lathrop, and discounted by the bank. These notes amounted to $6,680 09; they were security for unaccepted drafts only, and could not be applied to any other purpose. The unaccepted drafts of H. & L. then held by the bank, including the $2,000 given up on that occasion, amounted to $6,091 94. Subsequently and before the bank had any notice of the plaintiffs’ securities, (so far as the testimony showed notice,) they discounted other drafts of H. & L., which were not accepted, and for which those notes remained as collateral security, viz. one of $1,500, January 31, 1846, payable at six months; one of $1,325, at six months, February 26th, 1846; and one of $1,325, at six months, February 27th, 1846; all of which were unpaid when they put in their answer.</p> <p>The cashier of the bank testified, that when he received the note of $2,000 from Howard & Lathrop, and gave up their draft, the officers of the bank had no knowledge, intimation, or suspicion, that the note was an accommodation note, or that it did not belong to H. & L., or of the object for which it was made.</p>

TWrtc were actions brought to recover damages for the nonacceptance of a quantity of flour sold by the plaintiff to the defendant, under the following contracts: “In consideration of one dollar, to me in hand paid, the receipt of which is hereby acknowledged, I have purchased of A. P. Stanton fifteen hundred barrels superfine flour, (Ohio, Genesee, or Michigan,) flat hoops, in good order, at the rate of eight dollars, thirty-seven and a half cents per barrel, deliverable, '…

TW bill in this cause was filed by the complainants as heirs at law of Ann Hamilton, who died intestate, praying a discovery by the defendants, in relation to an alleged gift claimed to have been made by her to the defendants, The Rector, &e. of St. Clement’s Church, of a lot of ground, formerly belonging to her, and known as Ho. 824, on Broadway, in the city of Hew York, and in relation to certain deeds and instruments in writing, purporting to convey the lot to the church,…

<p>Where goods were sold by an auctioneer, without any warranty or misrepresentation, and the same turned out to be spurious, and the labels upon them counterfeit; held, that it was no defence to an action upon a note given for the purchase price ; there being no proof that the auctioneer knew the fact of the spurious nature of the •’ goods, or that he had any better means of judging of their genuineness than the buyers possessed.</p> <p>The statute of 1845, making it a penal offence to vend merchandise, having thereon forged or counterfeited trade marks, knowing them to be such, &c., without disclosing the fact to the purchaser, would prevent the vendor from recovering the pnce of the goods sold, if he were aware of their spuriousness.</p> <p>But it must appear, that the vendor knew the marks to be forged or counterfeited, or that there was a warranty of the genuineness of the goods, or some misrepresentation on his part, to prevent a recovery.</p> <p>The original fraud in the counterfeiting of trade marks, does not attach itself to the goods in the hands of an owner ignorant of the offence, and fasten upon him the penalties of a wrong of which he is innocent.</p>

This cause came before the corn-t on pleadings and proofs, having been transferred from the supreme court. The bill was filed in the late court of chancery, in October, 1846, by the above complainants, against James W. Jauncey, Joseph Wood, and John Wood. A demurrer to the hill was overruled at a special term of the supreme court. An answer was then put in, issue was joined, and proofs were' taken. The material facts established appear in the opinion of the court.

<p>This was a motion to set aside the report of referees. The action was brought to recover an amount alleged by the plaintiff to be due from the defendants to him, for professional services as an attorney and counsellor at law.</p> <p>By an order of the court, the cause was referred to Ogden Edwards, William Kent, and Alvin C. Bradley, Esqrs., counsellors at law, to hear and decide the same. Hpon the hearing before the referees, it was admitted by the counsel ibr the defendants, that the plaintiff was duly appointed corporation counsel on the 16th day of May, 1844, and that at that time he was an attorney and counsellor of the supreme court, and solicitor and counsellor in chancery. A bill of particulars was furnished, by which it appeared, that the plaintiff’s claim was for taxable costs as attorney and solicitor, in a large number of suits prosecuted or defended by him in the various courts ; also for counsel fees on the argument and trial of causes in the courts of justice; also for counsel fees in the trial of causes to which the city was not a party, hut the defence of which had been assumed by a resolution of the common council; also for the drawing of sundry contracts, conveyances, laws, and memorials, relative to the business of the city, and for attendance at Albany during the session of the legislature, in reference to certain measures pending before that body, in which the city was interested, and at the request of the corporation.</p> <p>Under the first head, the plaintiff read in evidence the several taxed bills of costs, with proof of service of notice of taxation. It was then proved that the suits mentioned in the bills of costs, were either those in which the plaintiff had been substituted in place of the former counsel of the corporation, under a resolution to that effect, adopted by the common council, or which had been commenced by or against the corporation while the plaintiff was counsel. Under the second head, the plaintiff proved services rendered by him as counsel in the trial and argument of various causes, in which the corporation was a party, in the different courts of law and equity, and the reasonableness of the charges in the bill of particulars. It also appeared that the plaintiff had rendered services as counsel in four suits, at the request of the common council, expressed by resolutions adopted by them for that purpose, in which suits the corporation was not a party, nor in any wise interested pecuniarily. The titles of these causes were Fleetwood v. Quin; Reed v. Benson and others; Cahill v. Williams; Goldsmith v. Rawson. The reasonable character of the charges rendered was also established by the evidence adduced. Under the fourth head, the plaintiff proved the drawing of a large number of contracts, memorials, conveyances, &c., and that the charges for these services as contained in the bill were fair and reasonable charges. Under the last head, the plaintiff proved that he was in attendance at Albany three weeks during the session of the legislature, at the request of some of the principal officers of the corporation, in opposing the application of the city of Brooklyn relative to the ferries, and also in reference to several bills pending before the legislature in reference to alien passengers and other matters, in which the city of New York was interested, and that the charges rendered by him for these services were reasonable. Among the counsel fees, there was one charge of $100, for a counsel fee in an arbitration in the case of Mrs. Flanders, which was tried subsequent to the expiration of the plaintiff’s term of office.</p> <p>The defendants’ counsel read in evidence from a printed volume of the revised Ordinances of the city, (a.d. 1839,) chap. IV., title 1 and 2, relating to the counsel and attorney of the corporation. These provisions are set forth at length in the case of Brady v. The Mayor, áse. of New York, 1 Sandf. Rep. 569, and it is deemed unnecessary to incorporate them here. It is provided by these ordinances, that a suitable person, of the degree of counsellor at law of the supreme court, shall be appointed corporation counsel, whose duty it shall be to advise the common council, and their committees and officers, on such legal questions as may from time to time arise in relation to the business of the corporation; “ cmd to perform all such othe/r services m the Imeofhisprofession, connected with the business of the corporation, as are not comprised in the duties of the corporation attorney.” The duties of the corporation attorney are prescribed as follows:—To commence and prosecute all suits arising under .the charter of the city, and all actions upon the laws of this state, in cases where the penalty is given to the corporation, or to the overseers of the poor.</p> <p>The defendants’ counsel also read in evidence an ordinance of the common council, adopted May 29, 1844, by which the salary of the corporation counsel was fixed at $2000 per year.</p> <p>It was contended on the part of the defendants, that the salary thus provided, was in full payment of all services performed by the plaintiff. That those services were a part of his official duties as corporation counsel. On the part of the plaintiff, it was contended, that the ordinance of the 29th May, 1844, by which a salary of §2000 was allowed, and directed to be paid to the plaintiff, did not embrace the services rendered by him as counsel on the trial or argument of causes in courts of justice. That these services were not any part of “ the business of the corporation,” within the meaning of the ordinances. And further, that the ordinance could not be applied to services rendered in suits in equity, because the ordinance did not require a person to be either of the degree of solicitor or counsellor in chancery, to fill the office of corporation counsel. That as to the services rendered by the plaintiff in the four suits to which the city was not a party, but where the defence was voluntarily assumed by the corporation, the ordinance did not apply. And that the services rendered by the plaintiff in the drawing of special contracts, memorials, laws, &c., and in attendance upon the legislature, these not being peculiarly or properly within “ the line of his profession,” were a proper charge against the corporation.</p> <p>The referees reported that the plaintiff was entitled to recover the amount of his taxed bills as rendered, being the sum of $6,299 65; also for his services before the legislature, the sum of $500; his counsel fees in the suits of Fleetwood v. Quin, Eeed v. Benson et ah, Cahill v. Williams, and Goldsmith v. Eawson, in all $300 ; and his counsel fee upon the arbitration in the case of Mrs. Flanders, $100, mating in aE $7,199 65. But that he was not entitled to recover for counsel fees in the ordinary suits and proceedings, or for any services as counsel, as claimed in his biE of particulars, with the exceptions of the four. suits mentioned, and the case of Mrs. Flanders, on the ground that he was paid and compensated for all such services by the salary provided in the corporation ordinance.</p> <p>The defendants moved to set aside the report; and by consent the points which the referees ruled against the plaintiff were discussed on the motion.</p>

<p>The bill in this cause was filed in the supreme corn-tin equity, by Jabez M. Woodward against Arnold Harris and William H. Aspinwall, to compel the specific performance of an agreement, by which, as it was alleged, Harris bound himself to assign to Woodward a contract with the general government for the conveyance of the mails on the Pacific Ocean. The facts will be found in the opinion of the court.</p> <p>The defendants separately demurred to the bill, for want of equity, for want of parties, and various other causes. The demurrers were overruled at the special term of the supreme court, and an appeal was taken from that decision by the defendants. The cause was then transferred to this court.</p>

Motion to dissolve an injunction. Most of the facts appear in the judgment of the court. In addition to those, it may be stated, that the plaintiff is the proprietor of the Irving House, a very large hotel, situate on Broadway, in the city of New York, and extending from Chambers street to Reade street.

<p>One partner cannot make a general assignment of the partnership property to a trustee, for the benefit of creditors, against the consent or without the acquiescence of his co-partner; the latter being present or capable of acting in the matter, (a)</p>

This was an action brought against the chamberlain of the city of Hew York, to recover for services as crier of the marine court, from the 8th day of March, 1841, to the 17th of January, 1845. The amount claimed was $1 50 per day.

Motion in arrest of judgment, in an action of slander. The complaint stated that the plaintiff was “ engaged in the wooden ware business, in the city of Hew York,” and that the defendant had published concerning him, the following slanderous words : “You are a cheat: you always was a d—n cheat: you came some of your d—n cheating tricks the other day about that check, when you bought some brooms of us, and then kept out of the way.

The bill in this cause was filed for a divorce a vinculo, on the ground of adultery. A feigned issue had been ordered, which had been tried, and a verdict found against the defendant. That verdict had been set aside by the vice chancellor, and his decision affirmed on appeal by the chancellor. The case is reported in 1 Barbour Gh. R. 604. On the second trial, a verdict was again found against the defendant.

The bill in this cause was filed in the supreme court, in May, 1848, for the purpose of setting aside two assignments made by the defendant, Gray, to the defendant, Tuckerman, and to compel the latter to account for, and pay over to the plaintiffs, the property so assigned.

<p>Demurrer to pleas. The declaration was upon a charter party, between the plaintiff, as the agent for the owners of the brig Linnea, and the defendant, (who executed the same under seal, in the name of Maitland, Phelps & Oo., of which film he was a member,) dated April 7th, 1847, by which, among other things, the plaintiff chartered the vessel to the defendant for a voyage from Hew York to Liverpool, and engaged that she should be provided with every requisite, and should, with some trifling exceptions, be at the sole use and disposal of the defendant during the voyage. The vessel was to take a cargo of corn in bulk. The defendant engaged to furnish to the vessel a full cargo, and to pay at certain rates specified in the charter party, for the freight. It was further agreed, that the defendant should be allowed for the loading and discharging of the vessel at the respective ports, as follows, that is to say: “ lay days, to load, twenty days from. Monday, the 12th inst.,” the plaintiff “ guaranteeing to have the vessel ready by that time, and to discharge with dispatchand in case of detention, the defendant was to pay demurrage at thirty dollars a day. It was subsequently provided, that the charter party should commence, when the vessel was ready to receive her cargo at the place of loading, and notice thereof given to the defendant, or his agent.</p> <p>The declaration averred, that the vessel was ready to receive cargo at the port of Mew York, her place of loading, by the 12th day of April, in the charter party mentioned. And that on the 13th of April, notice to that effect was given to the defendant, and he was requested to furnish the vessel with the cargo of corn in bulk, and to commence the voyage and charter party. That the cargo was not furnished, nor would the defendant employ or load the vessel, or dispatch her upon the voyage so agreed upon, by reason whereof the vessel was detained on demurrage, for the space of thirty-one days, and was prevented from earning the freight agreed upon, and the plaintiff had been subjected to various heavy expenses, for all of which he claimed damages to four thousand dollars.</p> <p>The defendant interposed three pleas. The first averred, that the vessel was not ready to receive the cargo mentioned in the charter party, by the 12th day of-April, as provided therein, and that thereupon the defendant forthwith gave notice to the plaintiff of his abandonment of the voyage. The second plea contained the same averment, and, in addition thereto, an averment that no notice of any such readiness was given to the defendant by the 12th day of April, in consequence of which the defendant abandoned the loading of the vessel, and the employment thereof, and gave notice thereof to the plaintiff. The .third plea averred, that on the 12th of April, the firm of Maitland, Phelps & Co., in the charter party mentioned, had a cargo of corn in bulk, ready for shipment, and to receive which, the charter party had been made by the defendant, and which defendant was ready and willing to ship and load on board the vessel, and would have done so, if the vessel had been in readiness, of which the plaintiff then had notice, but that the vessel was not, by the 12th day of April, ready to receive the same on board for the voyage. ■ Wherefore the defendant abandoned, &c., as before.</p> <p>The plaintiff demurred to the pleas, and assigned various causes; among them, that the pleas amounted to the general issue.</p>

This was an action of trespass and false imprisonment. The' complaint alleged, that, in August, 1848, the plaintiff obtained from the Hon. John W. Edmonds, one of the justices of the supreme court, a warrant of commitment against the plaintiff, under the pretence of a conviction under the non-imprisonment act; that the warrant was issued without any authority or jurisdiction- on the part of the justice; and that under it the plaintiff was arrested and imprisoned for the…

This was an action to recover one quarter’s rent of the upper portion of house 23 Dey street, in the City of Hew York, payable in- advance, and due May 1,1849, being the sum of one hundred thirty-seven dollars and fifty cents.

This was an action of ejectment, brought to recover the yossession of a piece of land 2 feet 6 inches wide by 27 feet long, being in the rear of premises known as Ho. 39 Lafayette Place, in the city of Hew York, and which piece was formerly a portion of the lot fronting on Broadway on a line with Ho. 39 Lafayette Place. The cause came on for trial before Yaudeepoel, Justice, on the 6th day of June, 1849.

Tras was an action of libel. The cause of action consisted in certain charges made against Carroll & Cook, a firm of which the plaintiff was a member, in a memorial addressed by the defendant to the Postmaster General, in which he protested against the execution of a contract with the plaintiff’s firm, for furnishing supplies for the Post-office Department, in consequence of alleged fraud on their part in submitting proposals.

Tttc bill in this cause was filed in the supreme court in equity, by the executors of Abraham E. Brower, late of the city of Brooklyn, deceased, against The Trustees of the Corporation of the Methodist Episcopal Church in the city of Hew York, and against the surviving devisees, heirs, and next of kin of Brower, for a construction of his last will and testament, to settle the validity of the devises and bequests thereby made, and to discharge the executors therefrom, if the…

This was an action brought after the code took effect, for the recovery of a payment due upon a contract, entered into by the. defendant and others, with one Lewis B. Griffin, and assigned to the plaintiff by Griffin.

This was a case agreed upon by the parties, and submitted to the judgment and decision of the court, under the code of procedure. The facts stated were as follows:—On the fourth day of November, 1806, James Walker, died in the city of New York intestate, seized among other property of the lot now known as number sixty-two Walker street, and leaving him surviving his widow and six children, viz. James M. R., Rachel Ann, Isaac, Washington, Mary, and Jane.

This was a suit commenced in the late coiui of chancery, and transferred to this court from the supreme court. The facts appear sufficiently in the opinion of the court.

This was an action upon a bond given by the defendants under the statute, in order to discharge the proceedings upon an attachment against one Tremlett, a non-resident debtor. The bond was conditioned to pay the attaching creditor, the amount which Tremlett justly owed him, &c. It was executed by Whitney, the agent of Tremlett, with one surety only. The principal facts are set forth in the opinion of the court.

The complaint in this cause claimed damages for the defendant’s breach of covenant in not furnishing the plaintiff with steam power for his manufactory in the lofts of the premises, Hos. 58 and 60 Yesey street, pursuant to the terms of a lease thereof to him by the plaintiff, dated March 21,1848. The complaint was verified July 3,1848.

This was an action to recover damages for the talcing and conversion of personal property belonging to the plaintiff, by the defendant, under a warrant for the collection of taxes imposed by the supervisors of the city and county of Hew York. The pleadings were under the code.

The bill in this cause was filed in the supreme court, by Jesse Hoyt against Abraham G. Thompson, George B. Fisk, The Long Island Railroad Company, and Digby Y. Bell, George B. Cooper, and Gideon O. Whittemore. The three last named were made parties, as being respectively, the auditor general, the treasurer, and the secretary of state, of the state of Michigan.

Demurrer to a bill filed to compel the defendant, as the grantor of certain premises to the plaintiff, to remove an incumbrance upon the same. The facts are sufficiently stated in the opinion of the com-t.

This was an action brought in the supreme court, in the name of the people against the defendant, as the surety upon a recognizance given on the arrest of one George H. Carleton, on the application of the relators, under the “ act to abolish imprisonment for debt and to punish fraudulent debtors,” upon a warrant issued by Judge Daly.

Morion to set aside report of a referee. This was an action of trover for a set of sails. By consent of parties a rule was entered, referring the cause to a sole referee, to hear and decide the same. Hpon the trial before him, the following facts appeared. In August, 1845, the plaintiff mortgaged a sloop to one Tooker, to secure a debt of seven hundred and eighty-seven dollars due from him to Tooker.

Motion to set aside the report of referees. The declaration .contained several counts.

The bill in this cause was filed in the late court of chancery, on the 24th day of April, 1846, by Charles Otway Mayne, of the county of Middlesex, in England, against George Griswold, of the city of Hew Tort. It set forth the incorporation of “The Morris Canal and Banking Company,” by the legislature of Hew Jersey, in 1824, with a capital of one million of dollars. The hill then proceeded with a very full and minute statement of facts.

This was a suit originally commenced in the late court ot chancery.

Tms was a suit commenced in 1845, in the late court of chancery, by Jane E. Ward against Thomas E. Davis, George Griswold, George Griffin, and Francis B. Cutting. The hill stated that on the 29th of April, 1836, Davis then owning an extensive tract of land in the town of Castleton, Richmond County, conveyed the same in fee to James B. Hurray and others, who executed a mortgage thereon to Davis for a part of the purchase money.

Tms was an action of assumpsit, to recover the amount of a promissory note for $1500, made by the defendant, dated March 14th, 1846, and payable in seven months after date, to the order of The Croton Insurance Company, and endorsed by the president of the company to the plaintiff. It was given in renewal of a previous subscription note to the company, made in 1845.

The complaint stated in substance, that John Mason, deceased, during his life, intrusted the defendant with $3,500 in cash, with instructions to purchase a farm for James Mason, a son of John Mason, the deed to be taken in the name of the defendant absolutely, and the farm to be held upon a general trust, for the benefit of James Mason and for his possession. That John Mason died shortly afterwards, without having declared any other trust respecting the farm or money.

The bill in this cause was filed, September 16,1846, before the vice-chancellor of the first circuit, by Willian Curtis Eoyes against Henry Blakeman and Ann Maria his wife, and Elisha Ruckman, for the purpose of obtaining payment out of the separate estate of Mrs. Blakeman, of the several claims and demands of the complainant for costs and counsel fees incurred by the defendants Mrs. Blakeman and her husband, in the prosecution and defence of suits at law and in chancery,…

The suit was commenced in September, 1848, by E. Darwin Litchfield, Edwin 0. Litchfield, and Thomas H. Hubbard, against Robert H. White and William H. Leonard. The complaint set forth the recovery of a judgment by the plaintiffs against White for $2057 56, in the supreme court, on the first of May, 1848, the issuing of an execution against White’s property, and the return of the same wholly unsatisfied.

The bill in this cause was filed in the late court of chancery, in 1840, by Erancis Dominick, against a great number of persons who were the heirs and descendants of Francis Dominick, formerly of the city of Hew York, deceased.

Case subject to the opinion of the court. The cause was transferred from the supreme court, where it was tried before Edmonds, circuit judge, in March, 1847. The action was debt, on a bond executed by the defendants in June, 1845, to the plaintiffs, on the attachment of the steamboat Virginia, by them under the statute. The suit was prosecuted for the benefit of the plaintiff, G-.

Motion to set aside the report of a referee, in an action of assumpsit, transferred from the supreme court. The declaration was for work, labor, services, and materials. At the trial, it appeared that the defendants in this suit recovered a judgment in the circuit court of the United State», in the district of Michigan, against one Henry Acker, upon which an execution was issued to the marshal of that district.

This was an action of assumpsit, brought to recover damages for the breach of a contract made by the defendant, for the delivery of a quantity of oats to the plaintiffs in the city of Hew York. The cause came on for trial before the Hon. John W. Edmonds, circuit judge, on the 26th day of April, 1847.

<p>As a general rule, a party who wishes to disaffirm a contract, is bound to return whatever he has received upon it. But this is upon the condition, that such party shall thus restore himself to his own original position.</p> <p>There are cases where the omission to return may be excusable, in point of law.</p> <p>The defendant obtained from the plaintiff merchandise under fraudulent representations, paying part of the price in cash, and giving his note for the balance. At the maturity of the note, the defendant could not be found, upon inquiry, at his last place of residence. Held, that an action of trover would lie for the goods, without a tender of the money or note; and that it was sufficient if the note were produced and tendered at the trial.(a)</p> <p>Where the original taking was tortious, trover will lie without a demand and refusal.</p>

<p>Writ of error from the supreme court to the court of common pleas of the city of Hew York, to remore a judgment in favor of Martin against Kanouse. The record of the judgment showed a recovery in an action of assumpsit for $421 68, by default for the want of a plea. On the return of the writ of error, Kanouse alleged diminution, and obtained a certiorari to the court below, with which was returned to the supreme court, an original and amended declaration, a petition, affidavits,"notices, rules, orders, &c., most of which are mentioned in the opinion of the court.</p> <p>By these papers, it appeared that Martin was a citizen of the state of Hew York, and Kanouse a citizen of the state of Hew Jersey. That the damages in the original declaration, by which the suit was commenced, were laid at $1,000. That on his appearing in the suit, Kanouse presented his petition to the court in due form, on notice to Martin, for the removal of the cause to the circuit court of the United States, in the southern district of New York, pursuant to the judiciary act of Congress of 1789. That before deciding on his petition the court of common pleas, on the motion of Martin, permitted him to amend his declaration, by claiming only $499 damages, and after such amendment was made, denied the petition of Kanouse. He made no further defence, and judgment was entered against him by default.</p> <p>The plaintiff in error, besides the general assignment of errors, assigned as ground of error, that the court below had no jurisdiction of the cause, when the judgment was rendered; that its jurisdiction ceased when the petition, &c. of Kanouse was presented and filed in conformity to the act of congress.</p> <p>After issue joined, the cause was transferred to this court.</p>

Replevin against the sheriff of the county of Queens, for the machinery, tools, and fixtures of a soap and candle manufactory, tried in the supreme court, and the case then transferred.

Motion by the defendant for a new trial, upon a case. The action was brought against the defendant as a common carrier, to recover the value of goods entrusted to him for transportation. ' The cause was tried at the Hew York circuit in January, 1848, before the Hon. H. P. Morse, one of the justices of the supreme court. The jury found a verdict for the plaintiff, for the value of the goods.

This was an action of replevin in the detinet, for five hundred barrels of flour, commenced in the supreme court, and transferred to this court, having been tried by a sole referee, on the 23d day of December, 1847.

This was an. action of assumpsit, tried at the Hew York circuit in June, 1847, before the Hon. John ~W. Edmonds, Circuit Judge. The declaration contained the common counts, to which was annexed a notice that the action was brought upon a draft or bill of exchange, of which a copy was subjoined, and that the same would be given in evidence under the money counts.

Motion to set aside the report of a sole referee. The action was assumpsit for money claimed to be due to the testator in his lifetime. The defendant pleaded the general issue with a notice of set off for money paid and other claims. The facts appear sufficiently in the opinion of the court.

Motion to dismiss a writ of error, argued before Duer, J., and decided with, the concurrence of Mason and Campbell, J.J. The writ of error was issued out of the supreme court to the court of common pleas of the city and county of Hew York, on a judgment by default in the latter court. After the cause was at issue on the assignment of errors, it was transferred to this court. Its final decision on the merits, after the disposal of this motion, will be found ante, at page 606.

Morion to strike a cause from the calendar of'the general term. The suit had been transferred from the supreme court. The action was trover, the cause was referred, and the referee reported in favor of the defendant. The plaintiff made a case with a view to move to set aside the report, and thereupon obtained a stay of proceedings. He subsequently died, and his executors refused to become parties to the suit.

The complaint was filed for the specific performance of an agreement for the sale of certain premises in the city of Eew York, by the defendant, Parker, to the plaintiff, Mrs. Capet, before her intermarriage, and of which, at the time of such agreement, she was in possession as tenant to Parker, and also for an injunction restraining him from the further prosecution of certain proceedings commenced by him before one of the justices of the city, for the purpose of…

This case came before the court on two appeals taken by the defendants Hepburn and Wills, (who alone defended the suit,) one, from an order at chambers granting a motion for an injunction, the other from a judgment at the special term overruling a demurrer to the complaint. The complaint made the following case. James H. Roosevelt leased to A. and F. Roux, the houses and lots, 478 and 480 Broadway, in the city of Hew York, for eight years from ■Hay 1st, 1845.

Motion arising on the accounts of a receiver, • who, by an order made by consent, was directed to pay over and deliver all the money, property, and effects in his hands to certain of the parties. He had, accordingly, paid over the money collected, amounting to something more than twenty thousand dollars, and had transferred and delivered a large amount, nominally, of book accounts and other things in action.

This was a motion to punish the defendant'for a contempt of court, argued by arrangement, before three of the justices, instead of one at chambers. On a previous occasion, an order Had been made, referring it to Joseph S. Bosworth, Esq., to ascertain the facts and report thereon, and the motion was heard on his report. From this report the following facts appeared.

Tins was a motion on the part of the defendants, to take a remittitur transmitted from the court of appeals, from the files of this court, to the end that it might be returned to the clerk of the court of appeals, with a view to enable the defendants to move that court for a correction of its decree in various particulars, in which they claimed that errors and omissions had inadvertently occurred.

The Hudson River Railroad Company applied to the court pursuant to the act of February 10th, 1848, (Laws of 1848, ch. 80, § 1,) for the appointment of commissioners to ascertain the compensation to he made to the owners, in respect of three parcels of land required for their roadway, at Tivoli, in the town of Red Hook, in the county of Dutchess. One parcel belonged to Feter Outwater, another to James Outwater, and the third to John S. Livingston.

This was an action to recover costs and counsel fees due to the plaintiff, Ransom. Miner defended the suit hy Mr. Dresser, his attorney, and, in its progress, Ransom served on the latter an account, containing the items of his demand, verified by his oath, as required by the code.

This was an action praying for a preliminary and a perpetual injunction, in respect to the use of demised premises, contrary to the covenants and conditions of a lease. The defendants moved to strike out certain portions of the complaint, as redundant and irrelevant. It is deemed unnecessary to set forth the matter at large. The points are stated in the decision.

Motion against two attorneys of the court, which was heard before all the justices. The facts are collected in the opinion delivered.

Motion to set aside an execution. The suit was commenced on the 22d of June, 1847, on a note for $800, at three months, made by the defendant, payable to and indorsed by one Allerton, dated August 7, 1846. The declaration, with a copy of the note, was served on the defendant personally. He appeared by an attorney, and filed a plea setting up that the note was usurious in the hands of the plaintiff, with an affidavit of merits.

<p>On a motion to set aside a warrant of attachment, issued as a provisional remedy under the code, the plaintiff may read affidavits supplementary to' those on which it issued.</p> <p>An attachment will not be granted, unless a prima facie ease is established by affidavits, upon positive knowledge ; or when, from peculiar circumstances, such cannot be obtained, those circumstances must be stated with all the grounds of suspicion, so as to satisfy the judge of the existence of the facts relied upon, and that the plaintiff has furnished the best evidence in his power to establish them.</p>

Motion to set aside an order of arrest. The defendant was arrested under the order, and was required to give bail. He accordingly put in bail to whom no exception was taken by the plaintiff. In March last, judgment was recovered against the defendant in the suit, an execution was issued and returned unsatisfied, and supplementary proceedings thereon ensued against the principal. An action was subsequently commenced against his hail, whereupon this motion was made.

TW. complaint, setting forth a libel, was verified by oath. The defendant’s attorney served an answer; which was not verifled. The plaintiff’s attorney kept it nineteen days, and then returned it, with a message that the answer was defective and would not be received, but without pointing out the defect. Thereupon, the time for answering having expired, the plaintiff applied at the special term for judgment as on a failure to answer.

<p>The points presented, and the matters bearing upon them, are stated in the decision.</p>

<p>A judgment upon a verdict is not perfected, under the code, until entered in the judgment-book, with the amount of costs (if any) recoverable, inserted therein.</p> <p>Until so entered, it is not a judgment from which an appeal can be taken to the general term.</p> <p>If the prevailing party neglect to complete his judgment, the other party may notify him to do so, and after a reasonable time elapsed, the court on motion will compel him to perfect it with costs.</p> <p>The entry made by the clerk, by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon, is not the judgment.</p> <p>The practice stated and approved, by which, after the jury pass upon the disputed facts, the judge gives a final judgment on rare or difficult points of law involved, with leave to appeal to the general term without security; where the parties so agree in open court, and no prejudice to either is likely to ensue.</p> <p>An agreement in open court, on a verdict being given, that the defendant may appeal without security, followed by such an appeal, with no objection taken at the time, and treated as regular by various acts for four or five months afterwards, will preclude the plaintiff from then alleging that the appeal was null because no undertaking was executed pursuant to the code.</p>

The decision of the court contains a statement of the facts. The motion to dissolve the injunction was heard by Campbell, J., with three other justices sitting with him as advisory.

<p>In proceedings to examine the judgment debtor, supplementary to execution, the plaintiff, to obtain the order, will not be required to show that the debtor has any property ; but if on examining the debtor, no property be discovered, the plaintiff will be ordered to pay costs to the debtor, unless some good reason appear for requiring the examination.</p>

<p>In this case, the defendant, who was nineteen years of age, was served with a summons in December last. On the 22nd of February, the plaintiff prepared papers on which to apply for the appointment of a guardian ad litem, but before those were acted upon, the defendant on the 2oth of February presented a petition, and procured such guardian to be appointed. The guardian ad litem demanded a copy of the complaint, which was not furnished to him, and on the 21st of March, he gave notice of a motion to dismiss the complaint. The plaintiff insisted that the defendant could not apply for the appointment of a guardian after twenty days.</p>

<p>The residence of a party, within the statute requiring security for costs, is not affected by the fact that he is a fugitive from service in another state, to which, pending the suit, he is removed upon the application of his master.</p> <p>Such involuntary removal, however, effects a change of residence, and he may be required to give security for costs.</p> <p>Where a plaintiff is a resident at the commencement of the suit, his subsequent removal from the state or beyond the jurisdiction of the court, will not make his attorney liable for costs,..although he proceeds in the suit.</p>

<p>Motion at chambers. The facts appear sufficiently in the decision.</p>

<p>A sham answer or defence, is one which is false in fact and not pleaded in good faith. It may be good in form, although a sham answer.</p> <p>A frivolous answer is one that shows no defence to the action.</p> <p>Each may be stricken out on motion.</p>

The question arose on proceedings supplementary to the execution, and was decided by the chief justice, after consulting all the justices. The plaintiff had obtained a judgment against the defendant, upon which an execution had been issued to the-sheriff of the city and county of Hew York, where the defendant resided.

<p>The judge, with the concurrence of all his associates, permitted the amendment to be made, on payment of the costs of opposing the motion; the plaintiff to retain his verdict to the amount of five hundred dollars. There was no question upon the evidence, of the plaintiff’s being entitled to a verdict; and in respect of the damages, the judge having reported that the amount was much beyond what in his opinion the circumstances of the case required, he was advised and he so ordered, that the plaintiff’s consent to a reduction of the amount, should be imposed as one of the terms of granting the motion.</p>

In this and several other cases against the same defendant, the plaintiff’s attorney, discovering a mistake in the summons by which he commenced the suits, amended them as of coime, and served them anew. The defendant moved, in each suit, to set aside the amended summons.

<p>Motion to strike out portions of the complaint, as irrelevant and redundant. The matters appear in the decision, which was pronounced upon advisement with all the justices of the court.</p>

<p>An answer is indefinite and uncertain, which sets up by way of set off, that the plaintiff is indebted on account of previous transactions, in a sum equal to his claim, as will appear by reference to an account current stated in the complaint to have been rendered by the defendant to the plaintiff.</p> <p>A defendant under an order to make an answer more definite, does not comply with the order by stating the set off to he for work and labor, goods, wares, &c. and money lent, &c. in the language of the common counts in assumpsit.</p>

The plaintiff moved in this cause for a reference, which was opposed, on the ground that the action was founded upon alleged frauds of the defendant. The motion was heard before the Chief Justice and Mason, J., and decided with the concurrence of the entire court.

This was a motion at the general term, before Oakley, Ch. J., and Dues and Campbell, J. J., decided with the concurrence of two other justices. Judgment had been rendered in favor of the plaintiff at the special term, and affirmed by the general term on appeal. The defendants then appealed to the court of appeals, and gave the requisite security, pursuant to sections 334, 335, and 339 of the code.

<p>A referee, to whom all the issues in the action have been referred, has not authority to order the production of books by either party, where there is no provision to that effect in the order of reference.</p> <p>This power is limited to the court, or a justice thereof, whether exercised under the code or the revised statutes.</p>

<p>In general, a reference will not be ordered, adversely, to take the examination of parties brought before a justice of the court, on proceedings supplementary to an execution.</p> <p>Where the parties agree to a reference, it will be ordered of course. And the matter will be referred, where it is apparent that it will be a protracted investigation, and the examinants are attended by counsel.</p>

The plaintiff sued upon two promissory notes, drawn in his favor by the defendant.

<p>This suit was brought to trial before Dube, J., without a jury. The action was on a promissory note made by both defendants. Wright alone appeared and answered. The judge decided against the defence interposed. It was then insisted by Wright that the court had no jurisdiction of the case, and the fact was admitted by the plaintiffs that Dardin was not a resident, and had not been personally served with any process in the suit.</p>

This was an appeal from an order at chambers. The suit was brought to recover for oil sold and delivered, for which the plaintiff claimed $259 16. After the defendant appeared, his attorney, on the 24th of October, 1849, served on the plaintiff’s attorney, an offer in writing, that the plaintiff might take judgment against him in the action, for the sum of $238 40. The plaintiff did not accept the offer.

<p>Suit to recover $183,52 and interest, for goods sold to the defendants as partners, between January, 1844, and March, 1847. The defendant, Williamson, did not appear in the suit. Chilson appeared by attorney, and after the time for Williamson to answer had expired, served on the plaintiff’s attorney an offer in writing signed by his attorney, to allow the plaintiff to take judgment against him for $110, with interest from the day on which the suit was commenced, and costs. At the same time he served an answer, denying the plaintiff’s claim, except as to $34,50. The cause was referred, and the referee reported that there was due to the plaintiff $110, but allowed him no interest On the trial it appeared that the defendants ceased to be partners in 1845.</p> <p>The defendant, Ohilson, moved for an order that the plaintiff pay his costs subsequent to the date of the offer to permit judgment to be entered against him.</p>

1st this case judgment was rendered in favor of the defendant after a trial at the special term. The plaintiff appealed to’ the. general term, where the judgment was affirmed. The defendant now moves for an allowance, in addition to the costs, under the three hundred and eighth section of the code, both in the court below and on the appeal. A similar motion in another suit, for an allowance on a judgment entered at the special term, was argued at the same time.

<p>The code does not require, that a specification of the items of the costs claimed shall be served with the notice of the application to the clerk to adjust the costs, in order to enter them in the judgment.</p> <p>Hereafter, however, this court will require such items to be served, and a rule of court to that effect was directed to be entered.</p>

Application by the plaintiffs for costs, in a suit against an administratrix. The facts appear in the decision, which was given with the concurrence of all the justices.

Tms was an action- of assault and battery against two defendants, who appeared by the same attorney, but answered separately. Their defences were in some measure distinct. A verdict was rendered in favor of both, and their attorney presented to the clerk for adjustment, a separate bill of costs in favor of each.

<p>In such an action against two or more defendants, if either defendant succeed against the plaintiff he is entitled to recover his costs of suit of the plaintiff, although the latter may have succeeded against the other defendants.</p>

The facts in this case appear in the decision, which was made at the general term, with the concurrence of all the justices of the court.