Volume 35 — Howard's Practice Reports

<p>Where a bankrupt is under examination before a register, he has no right to consult with his attorney or counsel before answering, except the register shall see good cause for allowing it.</p>

Motion by plaintiff for judgment on a verdict rendered in his favor, subject to the opinion of the court at general term.

Motion by defendants to set aside an order dated the 28th day of March, 1868, appointing Amasa A. Redfield, Esq., referee to take the depositions of Cornelius Vanderbilt and others, to be used upon a motion in this action to suspend Frank Work from his office as director of the Erie Railway Company. The order was granted pursuant to subdivision 7 of section 401 of the Code, upon affidavits that Vanderbilt and the others named in the order had refused to make affidavits.

Motion by James H. Coleman to set aside an order made at a special term of this court, on the first day of April, 1868, appointing Amasa A. Redfield, Esq., referee to take his deposition, to be used upon a motion in this action to ' suspend Frank Work from his office as director of the Erie Railway Company. The order was procured by the plaintiffs, under subdivision 7 of section 401 of the Code.

Motion by defendants to dissolve injunction prohibiting the making of payments on contract for repairing the streets of the city of New York for the year 1867. The contract was made without advertising for proposals. The grounds upon which the preliminary injunction was asked for and sought to be continued, sufficiently appear from the statements in the opinion.

<p>In an action of trespass on lanjl, commenced in the supreme conrt by reason of a plea of title interposed in the justice’s court, and the supreme court found that the defendant had titit> to so much of the premises as he pleaded title to; and that the trespasses committed by defendant, for which the court gave plaintiff judgment for $5, were committed on the piece of land to which the defendant omitted to plead title; and that as to such trespasses the title was not in issue; and that the defendant did not controvert the plaintiff’s title to or possession thereof on the trial:</p> <p>Held, that the plaintiff having failed to recover $50 damages, the defendant was entitled to costs♦ To entitle the plaintiff to costs in such an action, under the Code, the judgment in the supreme court muse be for the plaintiff on ‘the issue presented by the plea of title.</p> <p>It is only those issues which are covered by a plea of title, which are intended to go up to the supreme court at all; as to the other issues or causes of action, they should be continued before the justice, on the plaintiff’s motion; otherwise, if proceeded with in the supreme court, they have no influence on the question of costs. {It will be seen that this decision agrees with that in Heath agt. Bai’mour, ante p. 1, and the note made thereto. This case was received after the case of Heath agt. Bawmour and note were put in print.)</p>

Actios to restrain defendants from using a trade mark claimed by the plaintiffs.

This action was brought to^recover damages of defendant for criminal conversation with the plaintiff’s wife, and tried at the Steuben circuit in October, 1860, when a verdict was rendered in favor of the defendant.

Demurrer to complaint. The complaint alleges that on the 21st day of May, 1862, Edwin P. Christy died intestate; and that on the 22d day of May, 1862, letters of administration upon the estate of the deceased were granted by the surrogate of New York to the plaintiff; that the plaintiff qualified and entered upon the discharge of the duties of her office as administratrix; that afterwards a contest arose before the surrogate as to the right of the plaintiff to be such…

<p>None of the expenses of the loard of audit for the city and county of New Yorlc, and none of the claims covered by it, can be paid, except out of a fund directed by the act creating the board (1867) to be raised for that purpose by the board of supervisors, by tax.</p> <p>So long as the supervisors refuse to raise such fund, no damage can ensue to any tax payer, and he is not entitled to an injunction to restrain the action of the hoard of audit, even assuming the act under which they were created to be unconstitutional.</p> <p>There is no remedy given under the provisions of section 3, chapter 405 of the laws of 1864, against such a body as a board of audit</p> <p>That section only gives a remedy in hehalf of a tax payer, a member of the common council or a supervisor, against ike common council or the supervisors.</p>

On the first of May, 1864, Edward Belknap was seized and possessed of a parcel of land, with a dwelling house thereon, situate in the city of New York, bounded on the ' north by the centre line of Eighty-fourth street, on the east by the East river, on the south by the land of George Jones, and on the west by the center line of Avenue B. The dwelling house, which was occupied by Belknap'as a residence, was situated near the southerly part of the land.

An application was made to judge Clerke to vacate the assessment in this case under the act of 1858. Testimony was taken before that justice and afterwards on a hearing before another justice the application was denied. The petitioner appeals from that order.

PLaintiffs, as co-partners, brought suit against the defendants to perpetually restrain them from ■ standing their horses and coaches m front of the plaintiffs’ premises, at the northwest corner of the Seventh avenue and Fifty-ninth street. The plaintiffs are the lessees of and carry on the livery, stable business on said premises.

<p>The statute of April, 1860 (Sess. Laws 1860, ch. 446, p. 771) only gives the keeper of a boarding house a lien upon and right to detain the baggage and effects of a boarder for the amount which may be due by him, to che same extent and in the same manner as inkeepers have them.</p> <p>Thus limiting the lien to that for board actually due, and not including board to become due under an agreement to board in future.</p> <p>Nor can the act be extended to any other indebtedness, nor to any demand not due at the time of the detention.</p> <p>Where on the trial the defendant makes no request to submit a certain question of fact, upon which there is some evidence, to the jury; or to take objection to the insufficient proof of demand of personal property before suit brought, he cannot' avail himself of such omissions upon appeal to the general term.</p>

The complaint alleged that the defendant was one of the trustees of the Washington Medallion Pen Company, organized under the general incorporating act of this state. That the certificate of incorporation was filed February 10, 1857. That said company -purchased machineiy and gave their promissory note for the price thereof; upon which note an action was brought against the company, judgment recovered, and an execution thereon returned unsatisfied.

<p>There is but one form of order of arrest prescribed in the Code, and that is contained in section 183. All orders of arrest must contain the requisites therein stated. They must require the sheriff to arrest the defendant and hold him to bail; and must require this to be done in a specified sum. The order of arrest issued under subdivision 3 of section 179 must be in form conformable to section 183, the same as an order issued in any other case; and is not required to be in a sum equal to double the value of the property, as stated in the affidavit of the plaintiff accompanying the replevin papers.</p> <p>Consequently, where the order specifies the sum in which the defendant is to be held to bail at less than double the sum stated in .the affidavit, it does not make the order void; and being for the benefit of the defendant, he cannot move to set i aside on that ground. *</p> <p>An order of arrest is not defective because it omits to recite the subdivision (ot § 179) under which it is issued. Although this would be a convenience, and probably would be better to incorporate such fact in the order, yet it cannot be regarded as absolutely obligatory, because the statute does not require it; and the court must be careful not to put into the statute words which it does not contain.</p> <p>On a motion to discharge an order of arrest, where there is no sufficient evidence produced that the order was issued under subdivision 3 of section 179, the motion cannot succeed, where it is conceded by the mover that, if the order was not issued . under that subdivision, it is unobjectionable.</p> <p>4 defendant cannot succeed on a motion to set aside an order of arrest, by claiming that it was issued under subdivision 3 of section 179, in reference to a conceal'ment of the property, which he attempts to explain satisfactory, but upon which point there is contradictory evidence, while the plaintiff’s case is almost undenied upon the point—which is the gravamen of the complaint, that false and fraudulent representations were made by one of the defendants in the purchase of the property on credit, which would bring the action under subdivision 1 of section 179.</p> <p>If the defendants, in an action for claim and delivery, claim the benefits of the purchase of the property, which it is alleged was made by1 their agent fraudulently, although they allege a want of knowledge of such fraudulent purchase, they thereby indorse the agency.</p> <p>Every ratification of an assumed agency is equivalent to an original authority.</p> <p>Where the plaintiffs institute proceedings for the claim and delivery of personal pro eerfcy, and thereby obtain a portion of it, they do not thereby waive an order of arrest against the defendants for the recovery of the remainder, or for damages for its detention, on the ground that the order of arrest must be applicable to the entire cause of action, and not to a part only; and that the plaintiff could not issue execution against the person of the defendants for the portion of the property in th plaintiffs’ possession, and therefore could not issue such execution at all; and U not, an order of arrest would be equally improper.</p> <p>The delivery of a portion of the property to the plaintiffs under the proceedings in replevin is not decisive of their right to retain it. That question has yet to he decided in the action. If decided adversely to the plaintiffs, they must restore all they have thus acquired. If the plaintiffs succeed, they will have judgment for the delivery of so much of the property as they have not already received, or for its value, if not obtainable.</p> <p>Therefore, the execution can go for no larger amount than the defendants are really bound to pay, nor for anything or any amount for which an execution against the person may not legally issue.</p>

_ The facts will sufficiently appear in the opinion given at special term, as follows: McCunn, J. ' This is a motion to dissolve a temporary injunction. Held: that the plaintiff was not in default, so that the defendant had a right to- sell, though they had given him notice that they anticipated a fall on a certain day; that the pledgee could not sell without the fall first deeming, and then giving him notice, so as to cut off his equity of redemption. In Merwin agt.

<p>Where one who was a member of a late firm files his individual petition in bankruptcy, all his creditors can prove their claims, whether individual or partnership. Partnership assets must be administered according to the 36th section of the bankrupt act, and so must the assets of the separate estate of the bankrupt.</p>

This action was brought by the plaintiff against the defendant, to recover a deficiency arising on the foreclosure of a mortgage on real estate which the defendant, a married woman, bought of the plaintiff, subject to the mortgage, and which she assumed in the deed of conveyance to her to pay. The defendant afterwards sold it to one John Brower, who also assumed and agreed to pay the mortgage.

The defendants appeal from a judgment entered upon findings made by the chief justice of this court, of law and fact, after hearing the case without a jury; to which findings and each of them the defendants except.

This case comes up on exceptions directed to be heard in the first instance, at general term, and on appeal from an order denying a new trial at special term.

In the month of March, 1865, the plaintiff and Geo. Caldwell, Jr., purchased together two hundred shares of Cumberland coal stock and one hundred shares oí New York' Central Railroad stock. Geo. Caldwell, Jr., was to have one-half the profits for doing the business. The defendants did not know of this arrangement. The stock was purchased in the name of George Caldwell, Jr., alone.

Action to recover three-hundred and seventy-five dollars, amount of commissions for negotiating the sale or exchange of real estate. The plaintiff is a real estate broker in this city. The defendant, in or about the month of December, 1863, was a resident and the owner of certain real estate, at Caldwell in New Jersey, which estate consisted of a farm and four houses.

<p>Where the court, in an action to set off judgments, directs such set off upon condition that the plaintiff pay the costs of the supplementary proceedings instituted by the defendant on the judgment against the plaintiff, and deliver to the defendant a receipt, by the plaintiff applying the amount of the defendant’s judgment on, the judgments held against the defendant by the plaintiff, the defendant cannot refuse to accept such costs and receipt, on the ground that the plaintiff could not properly execute such condition, as he would be violating the injunction in the supplementary proceedings.</p> <p>The acts required of the plaintiff are authorized by the judgment of the court, which is necessarily a complete justification and protection to him for all acts done under it.</p> <p>Besides, if the performance of such condition could be regarded as a violation of the injunction, it would merely subject the plaintiff to punishment as for a contempt, and would not render the receipt or the payment of costs ineffectual or invalid. Therefore the defendant would have no concern in the matter.</p>

Appeal by defendant from a judgment in favor of the plaintiff. The facts will sufficiently appear in the opinion of the court.

Motion to amend order of general term. The defendant was proceeded against by attachment, for the alleged violation of an order of the special judge of Monroe county, in proceedings supplementary to execution, m an action for the recoveiy of money, in the which the plaintiff obtained a judgment against defendant, on which execution had been issued and returned unsatisfied.

On the 16th day of January, 1867, Messrs. Burdett, Jones & Co., a responsible house of auctioneers, sold twenty-five casks of blue vitriol at auction. The vitriol belonged to the plaintiff, and the auctioneers were employed by the plaintiff to sell it. Some of the casks were opened from an hour to two hours before the sale, and were examined by the defendants, and appeared to be merchantable blue vitriol.

<p>Where the object of the action was to state the account of the plaintiff with the trust fund, and to discharge the plaintiff from the trust; and accordingly the plaintiff, in the complaint, gave his version of the transaction, claiming to have paid over tin* whole amount into the hands of his co-trustee, except what he had paid over to the beneficiary of the fund, and showed how this had been done, and asked hi.> discharge: _ •</p> <p>Meld, that it was competent for the defendants to falsify such statement, hy the allegations in the answer, not only by a direct denial of the allegations in the coin plaint, but by affirmative allegations, showing a disposition and present conditio:0 of the fund different from that which the plaintiff insisted upon. And unless tiu-i object in the answer had been so clumsily and ineffectually accomplished, it ws»** error to strike out a large portion of its allegations, as containing wholly irreleva't. matter.</p> <p>Upon a motion to strike out matters in an answer for irrelevancy, which is the on'v ground stated in the motion papers, the court ought not to consider only incider - ally any other question, such as whether the matter sought to be stricken or . forms the whole or a material part of a defense or a counter-claim. These qu-.tions only properly arise upon demurrer, or on the trial of the action.</p> <p>As a general rule, the validity of a defense to an action is not to be tested by motion to strike out.</p> <p>Sham and irrelevant defenses may be stricken out, and matter of the same descriptivi may be stricken out on motion, or may give occasion for a motion for judgm**-' . notwithstanding the answer. But the matter must be palpably sham or irrelev\.<.u.</p>

This action was originally commenced by Jonathan Goodwin, who died, and by Ms last will and testament gave all his right, title and interest in the. subject matter in controversy to the present plaintiff, Calvin Goodwin ■, and the suit has been continued in Ms name.

The defendant Ryan was sued in the New York common pleas, as the surety of one Libberus, a constable of the city of New York.

Motion by plaintiff for re-adjustment of costs. The action was tried before a referee, whose report was for the plaintiff.- On the adjustment of the plaintiff’s costs before the clerk of Chenango county, the plaintiff insisted that he was entitled to the following items: For trial of an issue of fact........................$30 Trial necessarily occupying more than two days in addition thereto.................................. 10 The defendants claimed that the item of $10…

<p>This action was brought to recover from the defendant the amount of a promissory note, as damages charged to have been sustained by the plaintiff, by reason of the alleged omission of the Adams Express Company to cause the said note to be presented for payment, and to be protested at New Orleans, according to contract.</p> <p>On the trial the plaintiff proved that, upon the 6th of April, 1861, he was the owner of a certain promissory note, made by one Gr. M. Nichols, payable to the order of Saltus & Co., and indorsed by them and one Anna Saltus, for nineteen hundred and twenty-two dollars and thirty-four cents, payable ten months after date, at the office of Payne & Harrison, in New Orleans.</p> <p>On that day he gave the said note io the Adams Express Company for collection, and ordered that it should be protested, if not paid. He at the same time took a receipt from the defendant, setting forth the contract. The note was subsequently brought to the plaintiff by some person in the employ of the defendant, who asked him to take the note and give a receipt for it. This the plaintiff refused to do, on the ground that it did not appear to have been protested. No certificate of protest was attached to the note.</p> <p>The plaintiff afterwards called at the office of the defend- ■ ant, and had some conversation with the person in charge, who said that he did not know anything about it, but promised to write and inquire why the note had not been protested. The plaintiff never heard further from the defendant upon the subject.</p> <p>On this statement the plaintiff rested his case.</p> <p>A motion was made for a nonsuit, which was denied.</p> <p>It was proved, on behalf of the defendant, that Nichols, the maker of the note, resided at Shreveport, La., and gave the note to Saltus & Co., for the purchase of iron. ■ That he was here in April, 1861, but did not return to his place of business, in consequence of the political troubles which prevailed at that time. He made an arrangement at this time with Saltus & Co., by which he was to pay them one thousand dollars upon this note, and they agreed to protect the note and extend the time of payment of the balance. • This they failed to do. It was agreed, notwithstanding. this arrangement, that the note' should be protested.</p>

<p>When the Sixth Avenne Railroad Company of the city of New York, the defendants, secured its charter, it was with the tacit understanding they could charge jive cents fare in specie, that being then the lawful money.</p> <p>An extraordinary crisis arose, compelling the general government to issue a paper currency, which enhanced the value of the original fare, and justified the defendants in advancing their fare one cent, when paid in paper.</p> <p>The law of congress, passed 1864 [Statutes at Large, Tlwrty-dghtli Congress, p. 485)t justified the city railroad companies in adding the additional cent to the fares, even if the paper currency had not depreciated the original fare; and passengers are bound, if they wish to ride by these cars, to pay such additional cent.</p> <p>The penal act of 1857, against railroad companies, does not apply to city railroad companies, and by operation of law the penalty sought for against these defendants cannot be recovered.</p>

<p>No clerk of an attorney at law, however extensive his general powers may he, can discontinue an action without the consent of his principal.</p>

<p>It is a general rule of courts of equity that, when anything is due to a mortgagee in possession, he will not be deprived of 'such possession by any appointment of a receiver.</p> <p>And particularly is this so when the mortgagee is responsible and is able to account for and pay any excess of rents and profits, after the payment of his debt, or will give security tó do so.</p> <p>But where it appears that the mortgagee is irresponsible, or that the rents and profits would be lost or would be in danger of loss, or that the mortgagee was committing waste upon or materially injuring the premises, a different rule would prevail, and a receiver would be appointed.</p> <p>Where an interlocutory decree of a judge involves an adjudication that the mortgagee in possession, who is also appointed receiver, is entitled to remain in possession as such mortgagee until the coming in of a referee's report; although such adjudication would not prevent the court from removing him from his office of receiver, for proper cause shown, at any time before the coming in of such report, . yet, if not as a matter res adjudicata, as matter of judicial decorum, it precludes bis removal by any other judge of the court, for any cause existing before suck interlocutory order, than the judge by whom such order was made</p>