Volume 32 — Howard's Practice Reports

<p>In an action for the specific performance of an agreement to convey land, the rule is not as strict now as formerly, in reference to the proof of the exact agreement alleged in the complaint.</p> <p>If the allegations of the cause of action are not unproved in their entire scope and meaning; and the variance is not material • and no one has been misled; and especially if no question of variance was raised at the trial, the objection taken on appeal that the agreement as set forth in the complaint is widely different from that found by the referee, will be disregarded.</p> <p>In an action by heirs at law of an intestate son, claiming a specific performance of an oral agreement for the conveyance of land, against the devisees of the father, one of the defendants, a devisee, cannot be a witness on his own behalf to prove a conversation between the father and son, and in which the witness took part, respecting the agreement by the father to give the son a deed of the property, on the performance of certain conditions.</p> <p>And it is not material whether the witness took part in the conversation or not. The broad objection is that he proposed by his evidence of the confessions or declarations of the deceased father of the plaintiffs (the son) to defeat their title as the heirs at law, and to establish his own title, he being a defendant. If the case does not come literally within the words of the statute (Code, § 399), “ any transaction or communication had personally by such party with the deceased” father of the plaintiffs, it is within the intention of the statute.</p> <p>It is a rule in equity that a specific performance of an agreement will not be decreed unless the agreement is founded upon a sufficient consideration. The plaintiff must make a meritorious case.</p> <p>SéZd, in this case that assuming the facts as found by the referee, the case of the plaintiffs was meritorious, and they were entitled to the relief demanded: although there was much doubt whether the agreement as found by the referee was ever made. The case however was not destitute of equity. The evidence showed an intention on the part of the father to give the land to his son, when he (the father) should die ; and some of the evidence tended strongly to show that he had already given him the land.</p>

Duff. The warrant was claimed to be in payment to Duff of a balance of $7,000 and upwards, claimed by him as surviving partner of John F. Barrett, deceased, who in his lifetime had a contract with the city for repairing the streets for the year 1864. Affidavits were read on behalf of the mayor, showing that the executor of Barrett claimed the money, and that the alleged partnership agreement was believed to be a forgery.

<p>The following is the dissenting opinion of Judge Sutherland, in this cause—the opinion of the court is published in 31 Sow., 476.</p>

In this case, the clerk in adjusting costs of defendant, gave him double costs, but declined to double the defendant’s disbursements. The only question on this appeal is, is the defendant entitled to double disbursements?

<p>Where a note payable at the “ Bank of Kent, Kent, N. Y.,” was deposited with the Union Bank, N. Y., for collection, without any other direction as to the post office address of the Bank of Kent, the Union Bank was authorized to send the note to the address designated in the note, and was exonerated from liability, on its failure to reach the Bank of Kent.</p>

This is an application on behalf of a purchaser of mortgaged premises sold under a judgment of foreclosure and sale, to be discharged from his purchase on the following grounds: 1st. That the summons is not subscribed by the plaintiff or his attorney. 2d. That the affidavit on which the order of publication was granted is insufficient; and 3d. That no copy of the order appointing a guardian ad litem, of the non-resident infant defendant, was served according to the terms of…

<p>The act creating the Board of Health in' the city of Hew York, is not unconstitutional : 1st. Because as alleged, conferring the right on the board to deprive a citizen of Ms liberty and of his property, without due process of law:</p> <p>2d. Because as alleged, conferring upon the board powers of local legislation, which under the constitution, can "be conferred by the legislature only upon boards of supervisors, municipal corporations and incorporated villages;</p> <p>8d. Because as alleged, it confers upon the board judicial powers, in contravention of the sixth article of the constitution, which provides for and limits the judicial department of the government.</p>

This action was brought for the foreclosure of a mortgage. The complaint alleged that $129.47, had become due upon the bond and mortgage in suit, and that $250 was then to become due. It also alleged that the mortgaged premises could not be sold in parcels, and claimed judgment for the foreclosure of the mortgage and a sale of the mortgaged premises. The mortgagor in his answer denied that the amount alleged was due, and that the premises could not be sold in parcels.

Arpead from order made by Mir. Justice Barnard, denying motion for mandamus. » The relators, citizens of this state and residents of the twenty-first ward of the city, and trustees of common schools in that ward, on an order to show cause, applied for a mandamus to compel the defendants, the Board of Education, to appoint Abner B. Holley principal teacher of the male department of ward school No. 49, situated in said ward.

Arpear from á judgment of the supreme court in the first ■district affirming a judgment upon a verdict’ in favor of the ■plaintiff, which was ordered on the pleadings.

This was an appeal from, an order denying a motion to strike out of the costs an expense or disbursement of twenty dollars paid for copy stenographer’s notes of trial of the cause, which was taxed by the clerk on adjustment of costs of general term. The action was tried at circuit—verdict was for the plaintiff. The defendant appealed to the general term and served a proposed case.

This action was brought to restrain the defendants from proceeding to remove a platform or structure erected by the plaintiff in the slip south of and adjoining pier No. 14, North river.

The affidavit upon which an order for the examination of the defendant in this action as a judgment debtor, was granted, showed that the plaintiff recovered a judgment against the defendant in this court on the 27th October, 1862, for $489.53; that the judgment roll was filed in the office of the clerk of the city and county of New York; that an execution upon said judgment against the property of the defendant was on the 3d day of November, 1862, duly issued to the sheriff…

<p>The photographing a copy-right engraving, is an infringement of the copy-right laws of the United States (Act of 1831, §§1, 7), and will be restrained by injunction.</p>

This was an action commenced in a district court by the granting of a warrant for the defendant’s arrest, upon the ground of fraud in contracting a bill of $233.75, for the use of certain coaches, horses and a wagon, hired by the defendant from plaintiff’s stable. The defendant on being brought before the justice, proposed to read certain affidavits explaining the representations made, and showing them to be true.

This is an application for a receiver of the property of a firm whose business was heretofore carried on under the name of the defendant, whereof the deceased partner of the firm of the plaintiffs (Herman A. Schlueher) was a member, and for an injunction against the continuance of the business, and disposition of, or other interfencé with the assets of such firm.

Motion to vacate order of arrest. The defendants were commission merchants, doing business in the city of Albany. The plaintiffs were manufacturers of flour in the village' of Le Roy, and' early in September, 1865, shipped to the defendants one hundred barrels of flour for sale. Six other shipments of one hundred barrels each, were made along at intervals, the last being received by the defendants December 4th, 1865.

This is an action under the statute to recover damages of the defendant for negligently causing the death of the plaintiff’s testator, Henry Ernst. The action has been twice tried. On the first trial before Mr. Justice Gould and a jury, the plaintiff was non-suited, but a new trial was granted, on the ground that the case should have been submitted to the jury.

Appeal by plaintiff from order denying motion for a new trial. The action is to recover possession of a horse. The plaintiff gave evidence tending to prove title to the horse in himself and that the defendant took the horse from his possession. The defense was that the defendant was sheriff of Niagara county, and took the horse by virtue of an attachment against one James Kenedy, in favor of one Hannah Covert, in an action for assault and battery.

<p>An action to recover several penalties under chapter 361 of the laws of 1865, for bringing watered milk to a cheese factory, to be manufactured into cheese, may be maintained by and in the name of the treasurer of the association, against a member of the association.</p>

This was an appeal taken from a judgment entered on a verdict of a jury for $42.05. The claim was for $1,700, commissions at five per cent, for negotiating a charter for defendants (who were owners of the steamboat Seth Low) to the government, during the war. The charter was for $200 a a day for thirty days, and for such longer time as the government should require her. It was dated April 15,1862.

Motion to amend, &c. The plaintiffs in this case made a motion, 1st. Asking to bring in the executors of H. A. Schlucher, deceased, as parties defendant, and the general guardian of his infant children. 2d. Asking for the appointment of a receiver of the effects of the defendant. This motion was adjourned by the court for one week.

This is an appeal from a decision of the general term of the first district, reversing a judgment entered on a report of the late William Kent, referee. The plaintiff, as assignee of Charles T. Harrison, for the general benefit of creditors, commenced a suit to set aside a conveyance to the defendant by said Harrison, of the latter’s interest, derived under his mother’s will, and to recover possession of the property, on the ground that it was obtained by fraud.

These actions were instituted to test the liability of these plaintiffs to be taxed in the sum of $100,000, deposited by them with the comptroller of this state. The plaintiffs are a corporation under the laws of the state of New Jersey, for the business of life insurance. They had an office in the city of New York, and an agent there for the transaction of such business.

<p>Appeal from a judgment of the court of common pleas of the city of Hew York, affirming a judgment in favor of the plaintiff, upon the decision of a single judge.</p> <p>On the trial in Hay, 1859, before Judge Beady, without a jury, the plaintiff put in evidence an undertaking in writing, bearing date the 21st December; 1857, entitled in an action in the supreme court, wherein the plaintiff in this action was plaintiff, and the Galveston, Houston and Henderson Railroad Company was defendant, and executed by the defendants herein under their hands and seals. The body of the undertaking was in these words: “ An attachment having been issued in the above entitled action, to the sheriff of the city and county of Hew York, and the above named defendant having appeared in such action, and being about to apply to the officer who issued such attachment, or to the above mentioned court, for an order to discharge the same, we (naming the defendant herein) do hereby pursuant to the statute in such case made and provided, in consideration of one dollar to each of us in hand paid, undertake in the sum of $1,300, that we will on demand, pay to the above named plaintiff, the amount of the judgment which may be recovered against the above named defendants in this action, not exceeding the above mentioned sum.”</p> <p>It was admitted at the time of the execution of said undertaking, the action in which the saméis entitled was pending, and that the defendant in said action had appeared therein by attorney, and that the plaintiff subsequently recovered judgment therein for $775.28, and demanded payment thereof before this suit was brought upon said undertaking.</p> <p>The plaintiff having rested his case, the defendant Bean, offered to prove that the Galveston, Houston and Henderson Railroad Company, fraudulently induced the defendant in this action to execute the undertaking, by representing that in said action a warrant of attachment had been issued to the sheriff of Hew York against the property of said company as a foreign corporation, and that the sheriff had seized a large amount of property, and that in order to release it and restore it to the possession of the company, it was necessary that the defendant should execute such undertaking; all of which representations the defendants offered to prove were false.</p> <p>The defendants also offered to prove that the pecuniary consideration expressed in the undertaking, was not paid or agreed to be paid.</p> <p>The court, on objection, excluded the testimony offered, and the defendants excepted.</p> <p>The judge found that the undertaking was made and executed by the defendants, under their hands and seals, and found also the other facts above stated, and decided that the plaintiff is entitled to recover of the defendants the amount of his said judgment, with interest, to which the defendants’ counsel excepted.</p> <p>Judgment was entered upon said decision in favor of the plaintiff, and affirmed on appeal to the general term, and the defendant Bean has appealed to this court.</p>

<p>A defendant having served notice of appeal, the mere service of a notice of argument by the plaintiff, does not preclude him from enforcing payment of the judgment; no stay of proceedings having been given or applied for.</p>

A contract was made on the 25th of November, 1852, between the corporation of New York, by John T. Dodge,, street commissioner, and Henry Conklin, for the work of the Battery enlargement, under a resolution of the common council passed in one year by one board, and in the other year by the other board.

This is a certiorari from the judgment of a justice of the peace in summary proceedings. The defendant in'error presented to the justice an affidavit, upon which he issued his summons.

<p>While an injunction remains, it must he obeyed, and it is no answer to a charge of violation, that the injunction ought not to have been granted, or that it restrained acts which were proper in themselves, and which were improvidently restrained.</p> <p>Wfhere an injunction order improperly restrains certain acts of the defendant, and during its continuance these acts are performed by the defendant in technical violation of the injunction, but subsequently the injunction is modified so as to dispense with the clause improperly restraining such acts,- an attachment for such violation of the injunction, applied for and issued after the modification of the injunction cannot be sustained.</p> <p>This is upon the general principle that an injunction, which is but an order of the court, can have no more force or extended operation after it is set aside or modified, than a statute repealed or modified, in regard to acts previously done.</p>

On the 25th of September, 1866, application was made to the Hon. J. K. Portee, one of the judges of the court of appeals, for a writ of error in behalf of Frank Ferris, on the ground that the supreme court, general term, had no power to sentence the prisoner to death. The judge granted a rule to show cause, returnable on the 28th inst., before the court of appeals at Albany.

The plaintiff and his companion, a boy about the same age, on the 7th day of September, 1865, got on to one of the defendants one-horse cars at Lispenard street, for the purpose of being taken to Forty-third street, and paid their fare. Just before they arrived at Forty-third street the plaintiff requested the conductor and driver to stop the car, and let Trim off at Forty-third street. The conductor did not stop the car at Forty-third .street, as requested.

The petitioner was a member of the Thirteenth Regiment National Guard, S. N. Y., and was guilty of certain delinquencies in non-payment of fines, and non-attendance at parades and drills. A court martial was ordered, pursuant to the laws of 1862, and the petitioner was summoned to appear before the court martial and show cause why he should not be fined.

This action was commenced by the plaintiffs in the supreme court in equity, in September, 1847, to have their right to a stream of water declared and established ; to obtain a perpetual injunction against the diversion of the stream from their factory, and to recover damages for previous diversions.

One Kintz, the defendant in an equitable action, was proceeded against by attachment as for a contempt, in neglecting or refusing to execute and deliver certain obligations and securities, as required by the decree against him in that action. He was arrested on the attachment, and gave a bond with the defendants as sureties, conditioned that he should appear on the return of the attachment and abide the order and judgment of the court therein.

In this case the summons reads as follows: “ State of California.—In the justice’s court of the sixth township, in and for the city and county of San Francisco : “ The people of the state of California, to the steam vessel Hoses Taylor, greeting: “ You are hereby summoned to appear before me at my office, in the sixth township of the city and county of San Francisco, on the 16th day of November, A. D., 1863, at two o’clock, P. M., to answer unto the complaint of Wilson…

Appeals from two orders declaring the defendant and others, guilty of contempt for disobeying an injunction issued in the above action.