Volume 31 — Howard's Practice Reports

This is art appeal from a judgment entered on the decision of a justice of this court at the Albany circuit, held in March, 1863. The action was for the foreclosure of a mortgage by the plaintiff as assignee. It appeared by the evidence that this mortgage had been taken by John D. Livingston as collateral security for the fulfillment of a contract by defendants Smead and Alexander, for the purchase of some real estate.

This action was brought to recover the price of certain work and' labor performed, and materials furnished, by the . plaintiff for. the defendants, at their request. The defendants defense consisted of an account for iron, and other, things, alleged to have been sold and delivered to the plain-, tiff, at his request, and which they endeavored to set off against his demand on the trial of this action.

This case came up on appeal from a judgment entered in favor of the plaintiff for $17,479, in October, 1863. It had been tried twice before a referee, and twice on appeal argued before the general term. The facts of the case were as follows: On the 4th of January, 1859, the company desired estimates on some pipes for the manufacture of kerosene oil, called meerschaums, which they proposed to build of iron or brick.

The petitioner being owner of certain property under water, discovered that an assessment had been laid upon Ms property, and applied to have the same vacated, pursuant to-an act of 1858, upon the grounds: First.—That the board of revision and correction of assessments had never in fact had jurisdiction to act, nor had legally acted upon the assessment.

The complaint in this action contained throe counts; the first of which alleges the mating of a special contract by which the defendant agreed to receive, till and pack for the plaintiffs certain beef or barreling cattle on a day named “ that acting upon the Said agreement, and in order to have their cattle ready at the yards of the defendant in Deerfield, as he had directed, on that day, the plaintiffs were put to great necessary expense and trouble in breaking roads and…

This action was brought to recover an amount alleged to be due on various items stated in the complaint. The answer was served August 11,1865, and admitted the defendant’s liability upon two of those items, which amounted that day to $93.99, and denied all the other allegations in the complaint.

<p>A notice served upon a judgment debtor to appear before a referee to answer in supplementary proceedings, which omits to state the place at which ho is to extend, is fatally defective. . '</p>

The petition of Anthony S. Hope shows that an ordinance of the common council of the city of New York was passed in this matter June 14, 1856, by which “ Eightieth street, between Fifth avenue and tho East river be regulated and graded, under such directions as shall be given by the street commissioner, who may appoint an inspector thereon, and one of the city surveyorsthat for the more speedy execution of the ordinance the work be done at the expense of the common council,…

<p>tt is the right of a party affected to assail an act of a public officer for want of jurisdiction; and he does not preclude himself from so doing by any agreement not to raise the question, even if founded on a sufficient consideration.</p> <p>Appearing and participating in proceedings over which a court or officer has mi jurisdiction, does not prevent a party from assailing them for want of it. • Where an officer has authority and jurisdiction to grant a discharge to an imprisoned, insolvent debtor, under the Bevised Statutes (Art. 5, eh. 5, tit. 1, part 2), a plaintiff in an action against such debtor, has a right to object to the discharge of the defendant from arrest upon or by reason of his claim, unless it is a- claim arising oh contract.</p> <p>And tho plaintiff is not precluded from making such objection, by reason of his having appeared before the officer and opposed generally the debtor’s application for his discharge.</p> <p>Tho forms of the counts, in a complaint, do not in all cases furnish the court the best evidence of the real nature of the plaintiff’s claim. The facts out of which it originated must be ascertained in order to comprehend the real ground of tho action.</p> <p>Where the first cause of action mentioned in the plaintiff’s complaint is, what Would have been called (when it had a name) trover; and the second cause of action case, to recover damages for fraudulently certifying bank checks, by means whereof a large sum of money was fraudulently abstracted from the plaintiff: Held, that both causes of action are in tort and not on contract.</p> <p>The plaintiff might have waived the fraudulent conversion, and sued the defendant for so much money, had and received to its use; but not having done so, the discharge of the defendant does not apply to his imprisonment upon the plaintiff’s claim. His discharge applies only to debts arising on con-, tract'.</p>

James Gill, of the town of Poughkeepsie, in Dutchess county, died in February, 1856. He executed his will in June, 1841. He had at that time two brothers, Theophilus A. and Thomas, two sisters,' Sarah W. Anthony and Ann Gill, living. His brother Theophilus A. Gill is not mentioned in the will. In and by the will he gives and devises to his brother Thomas Gill, Ms heirs and assigns,” the one-tMrd of Ms estate after payment of Ms debts.

<p>In an action upon an undertaking, given by the defendant to the plaintiff, pursuant to sections 186 and 187 of the Code, to procure a discharge from arrest, the complaint is defective in showing a cause of action where it omits to aver the fact substantially:</p> <p>1st. That an execution against the properly of the defendant has been issued to the sheriff of the county, in which such defendant was originally arrested, and that the same has been returned by such sheriff unsatisfied in whole or in part.</p> <p>2nd. That an execution against the Vody of the defendant, having at least fifteen days between the teste and return thereof, has been issued to the same sheriff; and by him returned that the defendant cannot be found within his county.</p> <p>Since the form of an action of debt on the recognizance no longer exists, and the plaintiff is required to set forth in his complaint, every fact which the plaintiff must prove to enable him to maintain his action, and which the defendant has a right to controvert in his answer, it seems necessarily to follow that tho above statutory facts should be stated in the complaint.</p>

This action was commenced by the plaintiffs, two of the executors of Benjamin Rathbun, to obtain a judicial construction of his will. The defendants, Lama, Jane M. and George L., appeared by Countryman & Moak, and the defendants, Andrew R., Minerva E., Calvin P., and Louisa, by D. C. Bates, Esq. The case was tried before Mr. Justice Mason, at the Otsego special term, in July, 1861. All parties appeared on the trial by their respective attorneys.

<p>A justice of the peace in mating a return to an appeal, acts ministerially. And ho is liable for a false return to an appeal for any damages which a party to such appeal may sustain.</p> <p>"Where competent evidence is offered on the trial, and rejected by the justice ; and at the time the justice makes his return, or amended return on appeal, he recollects the fact, or by a proper effort to refresh hia memory, he can bring the facts to his recollection; and if he intentionally omits or neglects to use such effort, with a design on his part to prevent a reversal of the judgment, and -wholly neglects to return such fact, he is liable in an action of damages for a false return, to the whole amount of damages which the appellant may show he has sustained in consequence of such falso return.</p> <p>The justice in such action cannot sustain his defence, that his ruling, rejecting the evidence, if actually made, was right under the pleadings ; that such evi- • dence was not receivable under a denial answer; that it was new matter, and should have been pleaded; where it is shown that the action tried before him was one for carelessly and negligently running against the plaintiff’s wagon, and injuring it to his damage of $50, the defendant’s answer being a denial merely; and the evidence offered .by the defendant and rejected by the justice, tended to show that tho negligence on the part of the plaintiff contributed to the injury.</p> <p>This evidence should have been received under the denial answer, as it tended to prove that the plaintiff had no cause of action; consequently it was not necessary to set it up and plead it as new matter.</p>

This action was brought to recover the last of several installments claimed to be due upon a contract for building a store, and also for extra work done thereon.

Mary S. Fish died 13th March, 1862, leaving a last will and testament, dated October 14,1856, and a codicil, dated November, 1856.

This is an appeal from an order of the special term, refusing to strike out the answer .in the above action, for failure of the defendant to appear and be examined on behalf of the plaintiff, under' section 391 of the Code. Notice in writing of such examination was served upon the attorney of the defendant five days previous to the day fixed for such examination; and a summons was served upon the defendant three days previous thereto, requiring his attendance as aforesaid.

This case involves very important questions of an almost every day commercial character, and which, under the agreement of the parties, consist largely of facts which are brought out by the evidence and the points of the respective counsel. The dissenting opinion of Judge Ingraham seems to touch the only doubtful point in the case.

Writs or Prohibition were issued in favor of each, of the relators against the board of supervisors of Ulster county, commanding them to desist and refrain from any further proceedings in imposing or levying any tax upon the relators, assessed or to be assessed upon them respective capital paid or to be paid in, returnable at special term; and that they show cause why they should not be absolutely restrained from any further proceedings to levy said tax upon each of the…

This action was brought against the defendant Backus as indorser of a promissory note made by James R. Gilmore, for $5,120.70; this note was made and passed to the plaintiff to stand in the place of and to take up another note for the same amount, made and indorsed by the same parties, and which fell due the 7th day of November, 1857—the date of the note in suit, as the plaintiff claims.

The plaintiff is a judgment creditor of the defendant, Hamilton. H. Salmon, but not of the defendant Emilie M. Salmon. Execution against H. H. Salmon has been returned unsatisfied.. The judgment was recovered against H. H. Salmon and one John Hears, as copartners, and was recovered March 17,1857, and was for goods sold to John Hears between February 22, 1856, and April 14, 1856.

<p>I The plaintiff recovered a judgment against the defendant before a justice of the peace for eighty-nine dollars damages, on the 8th day of February, 1865. The defendant appealed from the judgment to the Broome county court, and asked for a new trial in his notice of appeal, “ upon the following grounds, viz : 1. That the justice erred in refusing to non-suit the plaintiff. 2. That the judgment was rendered against the law of the case. 3. That the judgment was rendered against the evidence. 4 That the judgment should have been for the defendant and not for the plaintiff. 5. That the facts proven on the trial are not sufficient to constitute a cause of action against the defendant. ' 6. That the judgment of the justice should have been made more favorable to the defendant in these particulars, viz : 1. That the justice allowed the plaintiff for 103 days for keeping defendant’s horse, at §1.00 per day, and deducting therefrom 14 days’ absence of horse, making the sum of $89, when in truth and in fact he should have allowed the plaintiff only $75, being the amount claimed in the complaint for keeping said horse for 15 weeks, at §5 per week, making a difference in the damages of $14; which sum of $14 this defendant claims should be deducted from the amount of said judgment, and the judgment made more favorable thereby to the defendant. 2. That the justice rendered judgment for the plaintiff for $89, when in truth and in fact he should have allowed only $78.70, making a difference of $10.30, which sum of $10.30 the defendant claims should be deducted from said judgment and made more favorable to defendant.”</p> <p>The respondent served a notice upon the plaintiff, and the justice consenting that the damages in said judgment might be reduced from $89 to $75, and that said judgment might be changed or altered accordingly</p> <p>The appellant did not accept said offer.</p> <p>The action was tried in the county court in June, 1865, when the jury rendered a verdict in favor of the plaintiff for seventy dollars ($70).</p> <p>The respontent caused his costs xq. the county court to be taxed, and at his request the county clerk entered a judgment on the verdict in the county court for the amount thereof ($70), with $43.48 costs, on the 12th day of June, 1865. The appellant’s attorney on the same day served notice of the adjustment of the appellant’s costs for the 14th day of the same month, on which day they were adjusted by the county clerk at $56.32.</p> <p>The appellant then made a motion in the county court to set aside the judgment for costs entered in favor of the respondent, and for judgment in favor of the appellant for costs, and the county court (on the 4th day of September, 1865,) made an order setting aside the judgment for costs entered in favor of the respondent, and ordered that the appellants costs ($56.32) be set off against the respondent’s damages of $70, and that the respondent was only entitled to a judgment against the appellant, for the residue of said damages, viz: $13.68. The order of the county court awarded costs in that court to the appellant, and denied costs in that court to the respondent. The respondent (plaintiff) appealed from the order of the county court, on the question of costs, to this court.</p>

The libellant is a widow woman, residing in South Carolina, and the respondent is the master of the Manhattan, one of the line of steam vessels plying between Mobile and New Orleans, for the carriage of passengers and freight. On the 23d of February, 1866, the plaintiff’s son, a minor, eighteen years of age, took passage on board of this ship at New Orleans, where he had been to receive a thousand dollars of his mother’s money, from her agents at that place.

This action was commenced for the purpose of effecting a • partition and sale of a certain house and lot, whereof Samuel S. Engle died seized, situated in the city of New York. At the sale of said premises, pursuant to the judgment of the supreme court, they were struck off to the petitioner, Joseph Richardson, for the sum of eighty thousand two hundred and fifty dollars ($80,250), he being the highest bidder therefor.

<p>It is only in cases where a clear surplus will exist, after a resonable sum has been appropriated to the support of the person for whose benefit a trust has been created, that courts of equity are authorized to interfere in behalf of judgment creditors, and divert a portion of the income or annuity so dedicated, to the payment of the debts of such person.</p>

Writs oe habeas corpus, in each of these cases. In the first case, In the matter of De Vaucene, the writ was issued by Judge Lott ; and in the other case, matter of Ketchum, the writ was issued by Judge Gilbert,, to discharge the defendants from arrest for selling spirituous liquors without licenses, in violation of the excise law of April 14,1866.

<p>Demurrer to indictments.</p>

<p>The opinion of tlie majority of the court in this case is published in this Yol. ante, p. 1. The following dissenting opinion of Judge Miller has been received since the opinion of the court was published, and is given below.</p>

This action was commenced before a justice of the peace, by service of a summons issued by the justice, and commanding the defendant to appear before said justice to answer the complaint of the plaintiff to his damage of two hundred dollars or under; Ho revenue stamp, under the statute of the United States, was attached to said summons at any time.

<p>The opinions of a majority of the court in this case are published ante, p. 264. This dissenting < pinion of Judge Mason was not received in time for publication with the others</p>

Appeal by the defendant from a judgment against him in a justice’s court. The action was brought to recover damages for a breach of warranty in the sale of a yoke of oxen by the defendant to the plaintiff, and was tried before a justice and jury in the court below.

This was a motion to vacate an order of arrest. The plaintiff commenced the action to recover $1,200, the value of certain stocks which he alleged he left with the defendant for safe keeping, under an agreement on the part of the defendant, that he would return them when' the plaintiff called for them ; that the plaintiff demanded the stocks and the defendant refused to return them.

<p>Hie assignee of a lease reserving rent, is liable for rent only as long as he remains in the legal relation of assignee; and when he assigns to another, and the latter accepts the assignment, all further liability on the part of the former is at an end.</p> <p>The consent of the landlord or lessor, that the lessee may assign the lease to another, operates as a discharge thereafter of the covenant that the lease should not be assigned, without the lessor’s consent.</p>

This was a motion to dissolve an injunction heretofore obtained by the plaintiffs under the following circumstances : The plaintiffs are the commissioners of the sinking fund, empowered, among other things, to receive all market rents belonging to the city ; they receive considerable sums from the stands injWashington market, and from the stalls upon the sidewalks and portions of West, Fulton and Vesey streets, surrounding it.

This was a motion for an injunction. The plaintiffs are land owners and residents in the vicinity of Seguine’s Point, Staten Island. The defendants are the metropolitan board of health, the commissioners of quarantine and the commissioners of emigration.

M. B. Stanford & Co., the plaintiff’s assignors, were the owners of certain silk in' Patterson, 1ST. J., which, it is alleged in the complaint, was unlawfully converted by the defendant. This was on the 13th December, 1859. On the 23d February, 1860, said Stafford & Co. made a general asssignment to the plaintiff for the benefit of their creditors.

This is ejectment under the statute o£ this statefor dower in certain lands, situate in the city of Buffalo, upon which stands, the large, and substantial stone budding erected and used by the United States government for a post-office,, custom house, court rooms, &e. The defendant Clapp is deputy postmaster, and has the charge of that part of the budding used' as a, post-office.

On March 10, 1863, Hubbard executed and delivered to the defendant a chattel mortgage on the property in question, as a present and continuing security for advances to be be thereafter made by the defendant.

This action was brought to recover damages for injuries sustained by a car load of horses while being transported by the defendant for the plaintiff from Stratford, in Canada West, to Buffalo, in this state, under a special agreement.

The plaintiff sued the defendant to recover from Mm damages for fraud alleged to have been committed in the sale of certain stocks by the defendant to the plaintiff. There were two sales, one of stock in the Hew York and Richmond Coal Company, and the other of an interest in the Cumberland Saltpetre Company. Two causes of action were stated in the complaint, one in regard to the sale of the coal stock, and one in regard to the interest in the saltpetre company.

This was an appeal by the defendant from an order at special term, denying motion for an attachment against the guardian, for costs of the action. The defendant had judgment for costs of the action, and issued his execution to collect the same, which was duly returned wholly unsatisfied» Thereupon he duly demanded payment of such costs from the guardian, who refused to make payment.

Tin's cause arose In a justice’s court, and on its trial there a verdict was rendered for the plaintiff for $79. The defendant appealed, and on the trial in the county court the plaintiff had a verdict for but $39. Each party presented a bill of costs for adjustment.

An action was commenced on or about the month of January, 1863, by the above named plaintiff, as receiver of all the property of Peter Reilly, one of the above named defendants.

As action was commenced by the plaintiff against the defendant for a divorce, a vinculo matrimoni, on the ground of adultery. The defendant did hot appear or answer. Plaintiff’s attorneys obtained an order of reference to take the testimony and report to the court, with opinion, &c. An ex parte order was made by the court upon affidavits, showing the amount of defendants’ income for alimony pendente lite to the amount of $12.50 per week.

A motion was made by the defendants in this case at special term to set aside the costs entered in the judgment in this action against the defendants as executors, as irregular—costs not having been allowed the plaintiff by special leave of the court. The plaintiff made a cross motion for an extra allowance of costs, against the defendants, in addition to the general costs in the action.

This is an action under the Code (in the nature of a suit in equity), to recover plaintiff’s dower' in twelve lots of land and a dwelling house at Harlem, conveyed by plaintiff’s husband in bis life time to defendant, and occupied by the alienee at all times thereafter. The complaint alleges these facts, and that the plaintiff had demanded her dower, and defendant refused to assign it to her.

<p>Where papers containing preliminary proofs of loss by fire are served on and received by the insurance company, without objection, it is too late for the company on the trial, to object that these preliminary proofs were defective and insufficient; especially so where the loss, when it became payable, was refused to be paid on the ground alone that the risk had been increased.</p> <p>Where the defendants by their policy, insured the plaintiff against loss or damage by fire, on his stock of drugs, chemicals and other merchandize, “ hazardous and extra hazardous,”</p> <p>Held, that the policy did not become void, nor the defendants non-liable, by reason of the plaintiff placing to warm upon a stove upon the premises about fine gallons of an inflamable compound, called ointment, by reason of which the fire was occasioned.</p> <p>It is usual for druggists to mix various kinds of ointment and to melt it on their stoves, as was done in this case; and the insurers must be deemed to be acquainted with the business and to have included it in the risk.</p> <p>If the risk had not been increased within the spirit of the conditions so as to avoid the policy, then it is no defense that the plaintiff might have been more careful in the management of a business which the policy permitted him to carry on.</p>