Volume 36 — Howard's Practice Reports

The complaint alleged that, pursuant to the constitution of the state of New York, and an act of the legislature, passed in March, 1867, a lawful election was held throughout the state on the 23d day of April, 1867, for the purpose of choosing delegates to meet in convention at the capitol, on the first Tuesday of June, 1867, to revise the constitution of the state, and to amend the same.

<p>It is no defense to an action brought on a promissory note, payable at a particular place, against the maker thereof, that on the last day of grace sufficient money to pay it was deposited and kept on deposit at that place.</p> <p>Such deposit is available, in an action against the maker, only as a tender, and must be properly pleaded as such.</p> <p>It is not necessary to the maintenance of an action brought on a promissory note payable at a particular place, against the maker thereof, either that payment should have been demanded of the maker personally, or at the designated place, or that the note should have been protested.</p>

<p>An assignee cannob make up out of the general funds of an estate any difference between the net proceeds of the sale of the mortgaged propel ty, and the amount stated by the mortgage to be due to the mortgaged creditors.</p>

Fullee brought an action in a justice’s court against thé defendant Brierley, for a balance claimed to be due him upon the sale and delivery of a quantity of wood. The defendant, answering, put in a general denial, with five other counts, the fifth of which alleged indebtedness of the plaintiff to defendant in the sum of $65, and is followed by a demand for judgment against the plaintiff for that amount.

In the course of the proceeding in this cause before me, at the chambers ot this court, the following question arose in relation to the way and manner in which application should be made for an order requiring the bankrupt to appear before this court, under section 26 of the bankrupt act. The question is pertinent to the proceedings, and its decision will settle the practice in this and other judicial districts. The petitioner has been duly adjudicated a bankrupt.

The plaintiff in this cause recovered a judgment against the defendant, in the court of a justice of the peace, for the sum of $96.30. The defendant appealed from the judgment to the county court of Erie county; and upon the trial had in that court the judgment was reduced to the sum of $18, costs adj usted by the cleric in favor of the plaintiff.

, referee. The action was brought to recover certain sums due to various persons from the firm of Thurber, Bice & Co., and which the defendants had assumed to pay and discharge by their bond of indemnity, executed to the plaintiff March 24th, 1865; the plaintiff on that day having sold out his interest in said firm to the defendant John T. Jenkins, for $5,000.00, subject to the payment of the company’s debts, and the defendant Justus Corbin, having signed said hondas surety,…

<p>Appeal from judgment entered upon the report of $ referee.</p>

<p>A charge to the jury that the credibility of a witness was a matter resting with themselves, irrespective of any contradictions that might appear in his testimony on the trial, and his affidavit on a former occasion:</p> <p>Meld, erroneous.</p> <p>Note.—We had intended, in the last volume—35 Howard's Practice Reports^ to have referred to the Digest contained in this work. Fiom and including the 30th volume, the Digest in each volume, has comprised a full and complete digest of all the cases reported in the respective volumes of reports therein mentioned. The caption to the digest in each of the volumes of this work, from and including the 30th, is calculated to mislead, as it says: “ Digest of the Points of Practice and Other Important questions, contained in the following reports.” When, in fact, it should read (as if will hereafter): “ Digest of all the Decisions contained in the following reports.” Reporter.</p>

<p>On the hearing of an application to sei: aside an election, under section 5 of the statute in reference to corporations, the court may receive proof by affidavit, or oral proof, in its discretion, or both.</p>

This was a motion made at the Saratoga special term, before Justice Bocees, April 7, 1864, to declare Wilson, Comstock and Strever elected trustees of said Pioneer Paper Company, March, 1864. The facts appearing before the court were that Wilson owned 47 shares; E. Comstock, 40 shares; S. A. Parks, 10 shares; Jane Buchanan, 10 shares; and S. A. Parks & Co. originally 193 shares. The firm consisted of Parks and Buchanan when the stock was taken, in April, 18-59.

<p>An appeal does not He to this court from an order at general term made in a special proceeding under the statute in reference to corporations.</p>

At the election for the same company, in March, 1865, the stockholders remaining the same as at the last election, the Buchanan party acquiesced in the election of Wilson as chairman, but questioned the right of each stockholder to vote, and demanded' the production of the transfer books before the election should proceed.

Judgment in this action was entered at special term, for plaintiff on report of referee, from which judgment plaintiff appealed to the general term. Attachment was issued against the defendant for about ten thousand dollars, under which property worth about nine thousand dollars was attached; after a trial on the merits judgment was rendered for the plaintifi for $538.79.

The justice issued his summons in this action March SSth, 1867, returnable April 7th, 1868. The summons having been duly served, the parties appeared on the return day and joined issue. The complaint was for trespass upon the plaintiff’s close and premises. The answer was a general denial. The cause was then adjourned by consent to April 8th, the next day.

<p>An order of arrest cannot be maintained in an action on contract, upon allegations that defendant is about removing from the state with intent to defraud his creditors, and that he fraudulently withholds and conceals his property with a like intent.</p> <p>A motion to vacate an order of arrest may be made after an iuquest has been taken against defendant, and is in conformity with the requirement of the Code,—that the motion be made at any time before judgment—for the judgment is not perfect until entered in the judgment book.” {Per Ingraham, J"., at special term*)</p>

<p>It is the duty of the attorney general, under § 405 of the Code, whenever he shall have reason to believe that any of the acts or omissions specified in that section oau be established by proof, to apply to the court for leave, and upon leave granted, to bring an action in the name of the people of the state, for the purpose of vacating or annulling the existence of a corporation (other than municipal), in every case of public interest.</p> <p>An action cannot be maintained under the Revised Statutes, relative to proceedings against corporations in equity, by a stockholder against the corporation and its trustees, to restrain the trustees from exercising any powers as trustees, and for the appointment of a receiver of the property and effects of the corporation.</p> <p>Ho mere creditor of a corporation can have a receiver appointed until he has & judgment and execution returned unsatisfied.</p> <p>In this action the court enjoin the defendant, its directors, officers, trustees and agents from delivering to any receiver heretofore appointed in other actions against the defendant by stockholders, possession of the Erie Railway Company, but they are required to deliver possession to any receiver who shall be appointed in this action. t</p> <p>A referee is also appointed to thoroughly examine into the transactions, affairs and condition of all actions affecting the Erie Railway Company and the directors thereof, with instructions to report to this court with all convenient speed. The directors of the defendant, in the meantime, being forbidden from exercising any doubtful powers or authority without the sanction of this court, and from issuing any new convertible bonds of the Railway Company and irom converting any bonds of the company into stock thereof.</p>

<p>A defendant is liable in damages to the plaintiff for negligence in leaving post-holes open and unprotected, which he had dug for a fence along the line of and contiguous to the street opposite his premises, whereby the plaintiff, in the night time in passing along the street, stepped into one of the holes and was seriously injured.</p> <p>Where this court can see no merits in an appeal which comes before it, they will add ten per cent'damages to the judgment.</p>

The mortgage foreclosed in this proceeding, was executed to the commissioners by Van Demark and wife, October 31st, 1851. The interest not having been paid in October, 1867, a sale of the mortgaged premises was regularly made by the commissioners in February, 1868. The purchaser at that sale having failed to comply with the conditions of sale and the requirements of the statute, the premises were again advertised and a re-sale made on the 11th day of September, 1868.

This cause is now pending before me in this court of bankruptcy.

The petition in this case seeks a review of the decision of the court below, refusing to discharge the bankrupt from arrest and bail, and also refusing to direct satisfaction of a judgment obtained in the court of common pleas of this city against him by Ann Walter for some $154.60. This judgment was recovered 25th May, 3868. ' The petition in bankruptcy was presented on the 30th May, the same month.

This was a motion to vacate an order of arrest. • The facts so far as material to this motion, are as follows: An order of arrest was obtained in February, 1868, and the defendant was arrested and held to bail in March thereafter. A defense was interposed to the action, but no judgment has yet been entered. In September notice of this motion was given, and the same was. continued by stipulation to the present.

This action is brought by the receiver of the Farmers and Citizens National Bank, to recover the amount of a promissory note, made and indorsed by the defendants. It now comes before the court upon a motion for judgment upon a verdict for the plaintiff, which was taken by direction of the court subject to the opinion of the court.

<p>The copyright act of 1831, confers upon the author and proprietor of a dramatic composition duly copyrighted, the sole right and liberty of printing, re-printing, publishing and vending such composition in whole or in part, for the term of 28 years from the time of recording the title of such composition in the manner directed by the act. The act of 1856 (11 U, S. Stat. at Large, 138), provides, ihat any copyright thereafter granted to the author and proprietor of a dramatic composition, shall be deemed to confer along with such right, the sole right to act, perform and represent the same on any stage or public place, during the whole period for which the copyright is obtained.</p> <p>A composition under the act of 1856, is a written or literary work invented and set in order. A dramatic composition is such a work, in which the narrative is not related, but is represented by dialogue and action. ’When a dramatic composition is represented in dialogue and action, by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed or represented ; and if the representation is in public, it is a public representation.</p> <p>A written work consisting wholly of directions set in order for conveying the ideas of the author, on a stage or public place, by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation, as if language or dialogue were used in it to convey some of the ideas.</p> <p>The “ Railroad Scene” in the plaintiff’s play of “Under the Gaslight,” is undoubtedly a dramatic composition. Those parts of it represented by motion or gesture, without language, are quite as much a dramatic composition as those parts of it which are represented by voice. This is true also of the railroad scene in Boucicault’s play of “ After Dark.” Bat the two scenes are identical in substance, as written dramatic compositions in the particulars, in which the •plaintiff alleges, that what he has invented and set in order in the scene, has been appropriated by Boticicault.</p> <p>In consonance with the principles laid down by Lord Lyndhurst {DAlmaine agt, Boosey, 1 Tounge & Collycr's Bxch. B. 288), the plaintiff is as much entitled to protection in respect of a substantial and material original part of his “railroad scene,” as he is in respect of the whole. All that is substantial and material in plaintiff’s railroad scene has been appropriated by Boucicaulc; and the railroad scence in Boucicault’s play, is undoubtedly, when acted on a public stage, an infringement of the copyright of the plaintiff in his play.</p>

Motion to dismiss appeal. On the 24th day of July, 1868, Daniels recovered a judgment against Rogers for $29.50 damages and $11.73 costs, in the justices’ court, from which judgment Rogers on the 7th day of August, 1868, appealed to this court on questions of law only; which appeal and all proceedings thereon, Daniels moved this court at this term to dismiss and set aside.

This is a motion on the part of the plaintiffs to restrain the defendant, the owner of a distillery in Eighteenth and Nineteenth streets, near the North river, from discharging Ms refuse mash into the common sewer, the waters of which carry said mash into the Hudson or North river, and as the plaintiffs allege, it there sinks to the bottom of the navigable stream, and is thereby a nuisance, and is injurious to navigation and especially injurious to them, the plaintiffs in…

This is an action in equity for the foreclosure of a mortgage. The defendant interposed by answer the defense of payment. The cause being at issue and ready for trial, the parties by their attorneys, stipulated to take the testimony of the witness- for the defendant, by whom he expected to prove his defense, before a referee, the said witness being then sick and unable to attend the court.

<p>By section 21 of the bankrupt act, the time named in the warrant for the first meeting of creditors is to be fixed by the register. And it is a matter of discretion with him.</p> <p>The notices must be served on foreign creditors, as well as those who reside in the. United States.</p> <p>Where all the creditors resided in Germany, held, that sixty days was a reasonable time in which to serve the notices.</p>

<p>The non-filing of an affidavit in the clerk’s office, upon which an attachment is issued, does not affect the warrant or the proceedings thereunder.</p>

<p>Certificates of indebtedness—issued by the-United States government under the acts of March 1 and 19, 1862, and treasury notes issued by said government, are exempted from state taxation.</p> <p>The principle of exemption is that states cannot control the national government within the sphere of its constitutional power, for there it is supreme; and cannot tax its obligations for payment of money issued for purposes within that range of prowers, because such taxation necessarily implies the assertion of the right of exercise of such control. (This decision reverses the judgment of the court of appeal* of the state of New York in these cases.)</p>

In this case Register Fitch certifies as follows : This cause is now pending before me at chambers of this court.

The case came up on appeal from a judgment rendered on a verdict on a case made containing exceptions, and also on an appeal from an order refusing to grant a new trial. The action was to recover damages for the breach of a written contract under seal, made by the defendants’ testator. It was shown that in March, 1866, the testator agreed to sell and deliver to the plaintiffs between the first day of April, 1866, aud the first day of February, 1867, 7,000 cords of pine wood.

' In this cause now.pending before me, the order to show cause why the discharge of the petitioner should not be granted, has been duly issued, the proceedings thereupon had, an appearance put in and specific objections filed by a creditor as provided for by section 31 of the bankrupt law, the case duly sent to the district judge, who, on the 21st day of July, 1868, made an order in this cause to take testimony therein.

This is an appeal from a judgment rendered by the general term of the supreme court held in the first judicial district, affirming the report of a referee. The plaintiff was the assignee of a limited partnership called Birkbeeks & Hodges, and as such sued the appellants to recover an amount due for steam engine work.

<p>To justify the issuing of an attachment under section thirty-three of the act to abolish imprisonment for debt, an affidavit must be presented to the justice, sboxving a demand arising upon contract and the amount of it, that no warrant can issue, and that the defendant resides out of the county.</p> <p>That “no warrant can issue” is a jurisdictional fact,- to be affirmatively shown.</p> <p>Van Kirk agt. Wilds (11 Barb. 520), is in conflict with Bennett agt. Brown (4 Comst. 254), and must be considered as overruled.</p>

This action was commenced to compel the specific performance of an alleged contract for the sale of 200 shares of the stock of the defendant a corporation organized under the general manufacturing act of this state. The par value of the stock is $10 per share.

Appeal by defendant from a judgment of Allegany county court, affirming that'of a justice of the peace upon the verdict of a jury in favor of the plaintiff for $36.64, with costs. Complaint. For pasturing defendant’s sheep at three cents per head per week, claiming $39.15. Answer. Denial, alleging price at two cents per week, also claiming damages for a breach of warranty as to the condition of pasture and fences.

In the year 1859, the defendant was indebted to one Cynthia Eagle, formerly Cynthia Webb. After the creation of the indedtedness and while she was the owner, the plaintiff and said Cynthia intermarried. In 1860 said Cynthia died intestate, leaving the plaintiff, her husband, her survivor.

<p>Upon the call of the calendar during the January general term, a judgment was affirmed on default. Upon an application to open the default and to vacate the order of affirmance, it appeared that the “case” had not been settled; and it was claimed that, therefore, the appeal was not in readiness to be heard, or the cause properly upon the calendar. On granting the motion, the court, after consultation with all the judges, made the following decision:</p>

This is an application to vacate the assessments mentioned and described in the petition herein. The objections to the assessments are as follows: First.—It is objected to all the assessments that they include a charge for assessing. The gross amount charged for assessing is seven hundred and five dollars and seventy-five cents ($70-5.75). Second.—It is objected to all the assessments that they have never been confirmed by the common council.

This case came up on appeal from a decision rendered by Hon. Wm. D. Shipman, sitting as district judge, in the district court for the southern district of New York, dismissing the libel. The libel in the district court was one for a collision filed by the owners' of the schooner Mary C. Town, against the steamship The Western Metropolis. The collision took place on the the Potomac River, in February, 1864, and resulted in the sinking of the schooner.

<p>The decision of the court in this case is published ante page 365"; since then we have received, through the politeness of Mr. Townsend, counsel for plaintiff in error, official copies of the opinions of the court delivered in the case, which we publish below.</p>

This was an application on the part of the petitioners to set aside the election of three out of the twelve directors of the Meteropolitan Gas Light Company. The grounds of the application were alleged irregularities on the part of the inspectors who conducted the election.

<p>A general assignment for ike "benefit of creditors, of a limited partnership, executed and acknowledged by the resident partner in person, for himself, for the firm and aa the attorney in fact pf the non resident partners, is sufficiently executed.</p> <p>Non resident members of a firm are not necessarily included in the statutory requirement of a personal execution and acknowledgment by each of the assignors.</p>

<p>This court will allow the examination of a party as a witness at the instance of the adverse party, before issue joined, and before a complaint is sewed.</p> <p>Where such examination is sought by the plaintiff before he serves his complaint, he must set forth in his affidavit with particularity, the facts and circumstances out of which he supposes a cause of action to have arisen, the relief which he suppposes he is entitled to, the defenses which he anticipates will be interposed, and the subjects in relation to which he desires to interrogate the defendant.</p>

The action was for cattle sold and delivered, and was tried in July, 1868, before Hasten, J., who directed a verdict for the plaintiff, and ordered the defendants exceptions to be heard in the first instance at a general term. William M. Johnson, on the part of the plaintiff, testified: I reside in Greencastle, Putnam County, Indiana; the plaintiff lives in Greencastle.

This is an action for libel. The complaint alleges in substance, that in a certain proceeding in bankruptcy, on the petition of George Cauldwell, a bankrupt, to be discharged from his debts, the defendant, Elsworth, appeared and opposed the bankrupt’s discharge.

This was an action of replevin brought by plaintiff to recover possession of certain property. It appeared that after the delivery of the process to the sheriff, but before the taking of the property, the same was offered to the plaintiff, who refused to receive the same, unless the costs were paid. The jury found a special verdict, as follows, viz: 1st Question.

<p>Appeal from order of special term, denying motion for peremptory mandamus after verdict upon issues, formed upon return of respondents, and plea of relator.</p>