Volume 30 — Howard's Practice Reports

Motion to set aside the plaintiff’s second demurrers to the defendants’ amended answers, as unauthorized and improper, in consequence of the former demurrers to the original answers; and in case the court should deny the motion to set aside said second demurrers, for the reason that demurrers to amended answers were irregular, that then the second demurrers be set aside for the reason that the service of the second amended answers was of course, a.nd allowable under section…

<p>Appeal from the judgment of the county court upon exceptions taken at the trial. The cause was appealed from a justice’s court, and upon the trial before the county court the plaintiff was nonsuited.</p>

<p>A party cannot recover Ms fees as a witness of his adversary.</p>

This action was brought to recover a balance of $150 for work, labor and services.

This action was originally commenced before a justice of the peace, in Elizabethtown. The complaint contained two counts.

Hearing on an order granted by Justice Ingraham, in the first above entitled cause, to show cause why an injunction previously issued against the defendants therein, restraining them from interfering with the plaintiffs in the construction and use of their railroad in the location upon which the railroad structures and track of the plaintiffs were laid and placed in Thirty-fourth street and First avenue, prior to and on the evening of the 18th of June, 1865, and restraining…

<p>County courts having jurisdiction in actions to foreclose mortgages (see Arnold agt. Rees, 18 N* Y. R* 57), have a right to try such an action in the ordinary way, and in so doing to entertain and dispose of all the direct and incidental issues properly arising therein, to the same extent in all respects as if the action had been commenced in the supreme court.</p> <p>Consequently the mortgagor may set up in defence a counter-claim to the effect that the plaintiff is justly indebted to him arising upon contract, and, therefore, he does not owe the plaintiff the sum claimed to he due by the bond and mortgage; to such counter-claim the plaintiff may reply, setting up an indebtedness arising upon promissory notes, and money lent and advanced, and the county court is bound to dispose of these issues, although it would have no original civil jurisdiction to entertain an action brought directly upon the claims involved therein.*</p> <p>The wife of a mortgagor cannot be a witness for her husband in an action for foreclosure of mortgage, where, although she is a party, no personal claim is made against her, and she does not put in an answer, nor otherwise appear in the action.</p> <p>The county court has authority by section 30, subdivision 13 of the Code, to review its proceedings in an action after judgment, and to grant a new trial, &c., notwithstanding the general language of section 323 of the Code, providing that the only mode of reviewing a judgment or order, in a civil action, shall be by appeal*</p>

The complaint averred a lease of a dwelling house by plaintiff to defendant ; that in the lease the defendant covenanted at his own cost and expense to keep the house in good repair, and at the expiration of the term leave the house in as good condition as he received the same, reasonable wear and tear excepted; that the defendant failed to keep the house in repair, but certain things were broken, destroyed and injured, by reason of such neglect of the defendant to keep the…

The plaintiff, claiming to be the landlord of certain premises, presented his affidavit to a justice of the peace, making out a case for the removal of the defendants, on the ground that they held over and continued in possession of the demised premises after the expiration of their term, without the consent of the landlord. The justice thereupon issued a summons in the usual form, and mgde it returnable the next day.

<p>Before Potter, Bockes, James and Rosekrans, Justices. Appeal from an order of special term granting a new trial.</p>

This was an appeal by the defendant from an order of the special term refusing to grant a readjustment of costs where the clerk had allowed $180 for eighteen terms in the court of appeals.

The plaintiffs in this action allege in their complaint that on the llth day of August, A. D., 1864, the said defendants entered into and executed a certain recognizance, bond and covenant, under their hands and seals respectively, whereby they jointly and severally acknowledged themselves to be indebted to the plaintiffs in the sum of five hundred dollars, upon the conditions following, that is to say, that if the said Jefferson Miller should be and appear at the next term…

<p>A mortgage to secure ten thousand dollars, stamped with a five cent stamp, is void for the want of a proper stamp.</p>

In this case, the relator, claiming to be the holder of a lease of premises on Eighth avenue, in the city of New York, was sought to be removed from the occupation of them on the ground that his term had expired. The original owner, Hertzel, had leased the premises for five years from 1st May, 1860, which lease by assignment had passed to one Reynolds, who sub-leased the premises to Stover for two years from 1st May, 1864.

Motion to set aside attachment, and all subsequent proceedings. The defendant was committed by an order of the county judge of Cayuga county, for refusing to answer interrogatories touching his disobedience of certain orders, requiring him to appear before the referee and answer concerning his property, as well as for his misconduct in not appearing before the referee as required by said orders, without specifying which.

<p>The plaintiff’s assignor was a bounty foro7cer, and on the 30th January, 1865, presented a number of men at the office of the defendant—who was provost marshal, for enlistment, who stated that they had engaged to go into the service of the United States for a bounty of $50 each. They were informed that the county was then paying a bounty of $700 for each man, and that they were held by no contract to enlist for any less sum, and that that amount should be secured to them; but they all persisted in stating that they had agreed to go for $50, and that they were satisfied with that sum, and upon this they were mustered in, and $50 only paid to each.</p> <p>Under these circumstances, and to guard against apprehended desertion, the defendant required the plaintiff’s assignor to give bonds of indemnity, as security that the men offered for enlistment should not desert the service before reaching the rendezvous. Accordingly the plaintiff’s assignor gave such bonds— twenty-two in number, and deposited the same with the defendant. "The men were thereupon mustered and sworn in, and of the number twenty-four deserted before reaching the rendezvous, and were not received, but escaped on the way:</p> <p>Held, that an action by the plaintiff (the claim having been assigned to him by the broker) against the defendant, alleging an unlawful detention of the bonds by the defendant, claiming a restoration, and damages for the detention, could not be maintained.</p> <p>First. It could not be maintained on the ground that the agreement was void as against public policy, assuming that it was made without any special authority of law; because, in addition to the unequivocal indications of bad faith on the part of the men presented for enlistment, the defendant had good grounds for questioning the good faith of the party presenting them, and who was in some sense responsible for their good conduct. The act of requiring indemnity, therefore, was not only not within any inhibition on the score of public policy, but was entirely justifiable by the circumstances, if not one eminently meritorious.</p> <p>Second. It could not be maintained on the ground that the act of the defendant in receiving these bonds comes under condemnation as an act done by color of ojfrce, and therefore void, because the class of cases embraced under this head are those which are defined by the statutes of this state, and are intended to apply to those holding office under the state authority. The act of the defendant in taking the bonds, does not come within any statutory prohibition of a thing done by color of office, nor within any definition of it regarded as an offence against law or morals. Where an agreement does not provide for an indemnity to the officer for a breach of duty, and is not condemned by either the common or statute law, it cannot be held void as taken colore officii.</p> <p>Third. The action cannot be maintained, because the agreement was executed. Whatever parties to an action have executed either for fraudulent or illegal purposes, the law refuses its aid to enable either party to disturb. An unlawful executory contract the law will not enforce. An unlawful executed contract, it will not rescind, nor restore whatever has actually passed under and in performance of it. In both cases it leaves the parties where it finds them. And in the case of an executed contract, where the parties are in pari delicto, the condition of the defendant is always preferred,.and he shall be allowed to prevail. And one of the parties being a public officer and the other not, does not alter the application of the principle of pari delicto.</p> <p>Fourth. There is no force in the objections that the agreement is void for want of consideration, and also by the statute of frauds, as being a contract to answer for the default of a third party, and not in writing. The action is not brought 'Upon the agreement. After a party has voluntarily performed an agreement, it is too late for him to urge these objections.</p>

<p>An order for an extra allowance, under section 309 of the Code, is appealable—to the general term and to the court of appeals.</p> <p>The amount of the recovery or claim mentioned in this section under which the allowance is granted, is not the measure but rather the limit of the allowance. Where in a case which is a proper one for an extra allowance, a large amount is claimed,—the claim in the action being large, the court should require some specific facts to be stated, such as moneys actually expended, or liabilities actually incurred, or time and labor consumed by the counsel or the party in the preparation and trial of the cause—how much time was occupied in the trial, whether there was more than one trial at the circuit, how often it was postponed, whether it was argued more than once at the general term, or long accounts taken upon a reference, &c.</p> <p>There is no authority for enlarging the sum granted so as to cover expenses and services which may or may not be incurred and rendered by the respondent in the court of appeals—especially where there has been no new trial, and there has been but one appeal.</p> <p>It is clear from the provisions of the Code, that the allowance is no part of the costs in the court of appeals, but exclusively a part of the costs in the court below. The motion for it is usually made at the close of the trial, and always before the entry of the judgment, and when granted, the sum allowed is included in the bill of costs and inserted in the, judgment roll as a part of the judgment.</p>

This was an action commenced in justice’s court to recover damages on the sale of a dairy of butter, the plaintiff alleging that by the terms of the contract, the defendant was to deliver to him a prime dairy of butter, and when the butter was received in Hew York, it was not prime butter. The defendant claimed that at the time of delivery at Deposit, the butter was a prime article.

Application by the relator for a peremptory mandamus, upon the following affidavits : State of New York, county of St. Lawrence, ss: Benjamin F. Sherman being duly sworn says, that he is a practicing physician, surgeon and chemist, and resides at Ogdensburgh, St. Lawrence county, New York.

<p>Under the act to provide for the collection of demands against ships and vessels,” no lien exists for materials furnished towards building a vessel, unless the contract was made and the materials were furnished within this state.</p>

The plaintiff in this action sued the defendant in a justice’s court of Orleans county, and recovered a judgment against him for the sum of $48 damages, besides costs.

On the 14th of April, 1861, the plaintiff, then an infant, was married^ to John S. Mcllvaine. On the 13th of April, 1863, while still under age, she in conjunction with her husband, executed and delivered to Charles Tracy, a deed conveying to said Tracy upon certain trusts therein named, for the sole benefit of the plaintiff, certain real estate therein described, belonging to the plaintiff.

<p>The Revised Statutes (Tit. 2, chap. 2, part 4), sections 7 and 8, provide (in reference to the arrest of criminals), that if the offence charged in the warrant be not punishable with death, or by imprisonment in a state prison, the prisoner may be let to bail by a magistrate of the county in which he is arrested.</p> <p>By section 11, it is provided that “ if the offence charged in the warrant be punishable with death or with imprisonment in a state prison, the officer making the arrest shall convey the prisoner to the county where the warrant was originally issued, before some magistrate thereof, as in the next section prescribed.”</p> <p>Section 12 provides, that persons arrested under any warrant issued for any offence, shall, where no provision is otherwise made, be brought before the magistrate who issued the warrant, or if he be absent, or his office be vacant, before the nearest magistrate in the same county. The subsequent sections provide for an examination before such magistrate, and for letting the prisoner to bail, in case of commitment.</p> <p>These sections of the statute prohibit equally a justice of the supreme court with a justice of the peace, from the exercise of the power of letting to bail any person arrested out of the county in which the warrant for his arrest was issued, where the crime alleged is a state prison offence, notwithstanding that section 29, of title 2, empowers “justices of the supreme court ” to let to bail in all cases, while “justices of the peace ” can only take bail in cases of misdemeanor, and certain specified cases of felony.</p> <p>The latter section (29) relates only to the grade of crimes, in respect to which the several classes of magistrates therein specified may let to bail.</p>

<p>On an application under the provisions of the Code by a party, for the examination of the adverse party as a witness in the action, he must present an affidavit stating 1st. The nature of the action, and the plaintiff’s demand.</p> <p>2d. If the application be made by the defendant, then the nature of his defence $ and 3d. The name and residence of the proposed witness.</p> <p>Upon that affidavit the party may apply for such an order as is mentioned in section 3 of the statute in relation to the conditional examination of witnesses within this state (2 JR. S. 392), and also for the summons nrovided for in section. 10 of the same statute/</p> <p>The order so ¡obtained" should be served upon the attorneys of all the parties who have appeared, or if the time of appearance has not yet expired, then upon all ‘adverse parties themselves, who have not appeared j and the summons should also be served upon the proposed witness.</p> <p>In case the proposed witness fails to appear, the party who has procured the order and summons, may, upon a proper affidavit, obtain a warrant directing the sheriff to apprehend such witness and bring him before the judge (2 R. S. 401, § 60), or at his option, he may, on a proper affidavit and notice, have an order directing the pleading of the recusant witness to be stricken out ( Code, § 394).</p>

The action was to recover for personal injuries sustained by the plaintiff in being run over by one of the' defendant’s cars, in January, 1864. The plaintiff was attempting to cross the Second avenue, at Thirty-first street. She said, in her testimony, that she started from the east side of the avenue, to cross upon the lower crosswalk to the opposite side. The defendant’s four-horse car was not then at the upper crossing or corner.

<p>An action of tort, brought by the citizen of one foreign state against the citizen of another foreign state, for alleged injuries committed in one or both of those states, cannot be maintained in the courts of this state. Our courts have no jurisdiction of such an action.</p>

<p>The issues in this action having been tried at a special term of this court, before the undersigned, one of the justices of this court, without a jury, and both parties appearing by counsel, I do find from the pleadings and proofs the following facts to have been thereby established:</p> <p>First. That Sara A. Sturtevant, the deceased above named, in the year 1864, had in her possession and belonging to her, the following property, to wit: Eight trunks, containing wearing apparel, household linen, blankets and bedding; also a piece of plate, some plated ware, gold-headed canes, opera glasses, chessmen, and some ornaments of trifling value, but no jewelry; also a tin box containing some articles of jewelry, including some articles previously belonging to a deceased parent, a watch and eye-glass; also a leather traveling valise and its contents, at that time deposited with a friend for safe keeping, which contained jewelry belonging to herself, as well as personal ornaments belonging to her deceased husband in his life time; and that she then owned no other trunks containing wearing apparel, household linen stuff, silver or jewelry.</p> <p>Second. That during the same year she executed her last will and testament, in the words and figures following, to wit: (Setting out a copy of the will, the first clause of which only is applicable to this case, and which is here inserted.)</p> <p>“ Firstly. I give and bequeath unto my sister, Elizabeth McCoy, wife of Amos D. McCoy, formerly of New Orleans, Louisiana, all my wearing apparel, household linen and stuffs, silver and jewelry, not hereinafter specifically bequeathed, which is now contained in eight trunks, together with said trunks. To have and to hold the same to her own use, separate from her husband, forever. And in the event of my surviving her, or of her legal incapacity to take and hold the same, I give and bequeath the same unto her two step-daughters, children of said Amos D. McCoy, namely, Susan and Mary Lorette McCoy. To have and to hold to the use of them (or if either shall die before me, then to the use of the survivor of them) forever.”</p> <p>Third. That on the 10th day of January, 1865, she departed this life in the city of New York, leaving the plaintiff her only surviving relative.</p> <p>Fourth. That her last will and testament has been duly admitted to probate ás such, and the defendants have duly qualified as, and they now are, the executors thereof.</p> <p>Fifth. That until her decease the testatrix continued in possession and control of the said eight trunks and the said tin box, and their contents, and continued to own the said valise and its contents, and she did not then own any other trunk containing wearing apparel, household linen, stuffs, silver and jewelry.</p> <p>And from the facts aforesaid, I do conclude as matter, of law:</p> <p>First. That in the said bequest of “ all my * * * silver and jewelry, not hereinafter specifically bequeathed, which is now contained in eight trunks,” the words—■ “ which is now contained in eight trunks ”—are words of description and not of limitation, and inasmuch as they are not applicable to any existing subject,' and the subject bequeathed is fully described without them, they should be disregarded as erroneous or surplusage.</p> <p>Second. That by said bequest the testatrix intended to, and did, specifically bequeath to the plaintiff, among other things, all the silver and jewelry which belonged to said testatrix at the time of her decease except the silver tea set, which she specifically bequeathed to one of the children of the plaintiff’s husband.</p> <p>Third. That the plaintiff should have judgment directing the defendants to deliver the same to her, according to the prayer of the complaint.</p> <p>And I do accordingly adjudge that the said defendants deliver to the plaintiff the articles so specifically bequeathed to her, or if sold, pay over the proceeds thereof to her,</p> <p>■ and pay to, the plaintiff her costs in this action, to be adjusted by the clerk of this court, out of the estate of Mrs. Sturtevant, the said testatrix.</p> <p>(Signed) Anthony L. Robertson,</p> <p>Chief Justice Sup. Court, N. Y.</p>

This is an appeal from an order of special term overruling a demurrer to the complaint in the above action.

This was a proceeding brought under the provisions of chapter 338, of the laws of 1858, to vacate assessments imposed for the regrading and repaving of Fulton street, in the city of Brooklyn. The petitioner presented his petition to Mr. Justice Scrugham, in special term. The honorable justice refused the prayer of the petitioner. Petitioner then appealed to the general term. Motion was made in behalf of the city of Brooklyn to dismiss the appeal.

<p>The purchaser’s posesession of a bill of lading for goods sold under a parol contract for over $50, if obtained without the seller’s consent and without payment of any purchase money, will not take the case out of the statute of frauds*</p>

<p>A master painter is not liable for injuries caused by bis workmen willfully bespattering the walls of the room. The remedy for willful injuries would be against the workmen.</p>

<p>The terms upon which an amendment of a pleading is granted are in the discretion of the court, unless they violate some absolute right of a party, and, except iñ such case, are not appealable.</p>

Tarbox was tried upon ah indictment' for an assault and battery oh one Yager, in the court of sessions of Otsego county, and was found guilty by the jury in August, 1865. He made a motion in that court in arrest of judgment,, on the. following grounds: 1. That he had never been arraigned upon the indictment on which -he was convicted. 2.

Writ of error to the Madison county court of sessions. The defendant in error was indicted at the Madison oyer and terminer, in.February, 1863, for feloniously receiving one gold watch, the property of Josiah W. Clarke, on the 10th day of June, 1;862, at De Ruyter, in the county of Madison, knowing the same had .been feloniously stolen-from said Clarke., That indictment was feloniously destroyed by some person or persons unknown, while on file in the office of the clerk of…

After the order of arrest was obtained in this case, an order was obtained by the defendants, calling upon the plaintiff to show cause why such order should not be set aside, or for such further or other order as to the court will be meet and proper.” On the return of that order, the parties appeared and were heard.

<p>An order to show ca/use against striking out certain allegations in the defendant’s answer consisting of an offset and payment* in case he should fail to furnish hy a certain day the particulars thereof* is not appealable. .</p>

In error, to the supreme court of the United States, from the decision of the court of appeals, reported in 26 Howard’s Practice Reports, 124 and 297, and in 27 JV. F. R. 87.

Summary proceedings were commenced before a justice of the peace by the defendants -in error, to remove the plaintiff in error from premises occupied by him as their tenant, on the ground that he held over after the expiration ■ of his term. The tenant appeared on the return day of ' the summons, denied the material allegations of the defendants in error, and demanded a jury, whereupon the cause was adjourned by consent of the parties.

This was an action commenced in a. justice’s court and appealed to the county court. Motion by the respondent to dismiss the appeal, on the ground that the notice of Appeal was riot stamped pursuit to the act of congress.

<p>The plaintiff seeks to enforce a judgment made by a court in New Providence, directing the defendant to pay into and invest in the public funds there certain moneys which he improperly withdrew and used for his own purposes.' A judgment was rendered for the plaintiff, and an accounting ordered, with directions to pay the balance due into court. The referee has taken the accounting, and allowed the premium on gold in addition. To this the defendant excepts.</p>

* Appeal by plaintiff from order of special term denying motion for retaxation of defendant’s costs. The. action was tried before a referee. On the first hearing, both the plaintiff and the defendant being present and in hearing, and the referee having been sworn and about to proceed with the trial, it was proposed by the counsel for the plaintiff that the referee should charge for his services whatever he saw fit, to which the defendant then and there acceded. .

The relator was one of the deputy tax commissioners of the city of New York. As such he was entitled to receive a salary of two thousand dollars per year, to be paid by the comptroller out of the county treasury. His appointment was on the 4th May, 1859. On the 4th May, 1864, new commissioners of taxes and assessments were appointed by the comptroller of the city of New York, under a supposed authority of the act of 1859, chapter 3Ó2.

<p>A contract for the sale of goods is not binding on the vendor, unless a note or memorandum thereof in writing, is signed by the vendee as well as the vendor, where no part of the goods are delivered, and no part of the purchase money is paid.</p> <p>The statute of frauds requiring that a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby,” is not satisfied by being signed by one of the parties to the contract only, but it requires the contract to be signed by both parties. (McCunn, J. in an able opinion dissents*)</p>

This action being at issue, was noticed by the plaintiffs for trial at the October term of this court, in 1865. A note of the issue was not filed with the clerk, or the cause placed upon the calendar for trial until the March term, in 1866. The action having been reached and regularly called at the March term, and the defendant not appearing, an inquest was taken.

<p>Where after service of the summons and complaint, the defendant stays the plaintiff’s proceedings until the costs of a former suit are paid, the defendant cannot move under section 274 to dismiss the complaint, where the costs have not been paid and the stay is in force.</p>

On habeas corpus, Adrian Janes was produced by Doctor J. Edward Turner, superintendent of the New York State Inebriate Asylum, before Justice Balcom, at his chambers in Binghamton, in obedience to a writ of habeas corpus issued by said justice, and served on said Turner.