Volume 37 — Howard's Practice Reports

<p>Hotion papers to set aside a judgment of divorce granted by default, and for leave to the defendant to come in and defend, are properly served on the attorneys for the plaintiff in the judgment, although, made nearly two years after the entry of judgment, and after the attorneys for the plaintiff had settled with their client^ and they themselves had dissolved partnership.</p>

The defendant was the Owner of the building, No. 707 Sixth avenue, in this city. He rented the store and basement to the defendant for a term .of five years and ten months, and the upper part of the building to one Trenor, for a dancing-hall. A fire occurred in an adjoining building, which communicated with .the upper part of the defendant’s building, consuming the roof and most of the building above the first story.

Motion to strike, out part of a complaint. The action was for damages for an alleged malicious arrest. The plaintiff pleaded all the circumstances attending the arrest and the petty annoyances to which he was subjected.

Demurrer to answer. This is an action for an assault and false.imprisonment.

Motion by defendant to change the venue to Cortland County. The affidavit of defendant stated “ that Frank M. Benjamin ” and others “ all of the county Cortland ” were material witnesses for him. This was the only specification of the residence of the witnesses. It contained the other usual statements.

<p>The written consent required by section 270 of the Code to refer an action for divorce, • is sufficiently made; and the statute complied with, where an order of reference is drawn by the attorney for one of the parties and submitted to and approved by the attorney of the other party, reciting as follows:</p> <p>46 Upon the consent of the attorneys for each of the above parties given in open court, it is ordered that this action be and the same is hereby referred” &c.*</p> <p>The Code does not allow of a reference, in an action of divorce or any other referable action, to take the evidence and report it to the court with the opinion of the referee merely; nor of any reference except for a trial of the issue in a case where an issue has been joined in the action, *</p>

This was an appeal from an order denying a motion to set aside an order of arrest. The facts are fully stated in the opinion of the court.

<p>In an action of claim and delivery of personal property, where judgment is rendered for the plaintiff, that he recover the possession of said property or a certain sum being the value thereof, in case a delivery cannot be had, with costs &c.: On appeal from such judgment to the court of appeals, in order to stay ike proceedings pending the appeal, the defendant must give an undertaking not only under sections 334 and 335, but also under section 336 of the Code.</p>

The defendant rented to the plaintiff the New York theatre for a specific term, and at a specified rent, the lease contained a covenant that at the expiration of such term there should be a renewal for such further time as should prove mutually profitable, the defendant to receive a share of the net profits in lieu of rent.

This was an action of trespass on the case at common law for the infringement of the patent of Peter Poillon, dated duly 21, 1857, for an improved 11 means of rendering joints steam-tight ” by the use of two steam pumps, having the plaintiff’s invention in the steam slide valve.

This was an action originally commenced in a justice’s court. The plaintiff in his complaint claimed to recover the value of about one hundred bushels of corn, and fifty bushels of oats, which he raised on the defendant’s farm in the town of Afton, in the year 1863, and which defendant had in his possession and refused to deliver to plaintiff, or to let the plaintiff have after demand by plaintiff, for which plaintiff claimed to recover $100 and costs.

<p>Where after verdict a motion for a new trial on exceptions is ordered to be heard at the general term, in the first instance, the case cannot be reviewed on the question that the verdict is against the weight of evidence.</p> <p>Where the defendant has the affirmative of all the issues, he has the right to the opening and closing argument to the jury.</p> <p>So held on the trial of an action upon a promissory note which was transferred to the plaintiff by the payee when past due, and the defendant set up as a defense in his answer; 1st that the note was given without consideration. 2d that it was given under duress by threats of criminal prosecution and of personal injury, and injury to the property of defendant by the payee and his wife. 3d that the note, was transferred to the plaintiff after it became due; and 4th that the plaintiff was not the party in interest nor the owner of the note.</p>

The defendants had judgment and execution against the plaintiff’s vendor, upon which they indemnified the sheriff,' who thereupon sold out all of the plaintiffs property, and applied a part of the proceeds to a prior execution under which a formal levy-had been made. The referee found as a fact that the plaintiffs purchase from the defendant in the execution was Iona fide and that he was the owner of the property seized and sold.

<p>The general rule as to the time of the delivery of goods sold is, that where goods arp to be delivered, and no time is specified in the contract, it is a presumption of law that the parties intended and agreed that they should be delivered in a reasonable time. What is a reasonable time is a question of law.</p> <p>Where cotton was sold by bill on the 21st of the month* to he received hy the purchasers from the wharf, without specifying any time of delivery, held, that a delay of four days in tendering a delivery was unreasonable, and that the refusal or neglect of the sellers to deliver on the demand of the purchasers on the 21st and 22nd relieved the latter from all responsibility.</p>

<p>In an action to recover the possession of personal property where it is wrongfully detained, a demand is necessary before suit brought.</p> <p>Where a non-suit is granted and a judgment entered for a return of the property, the general term will not reverse, because the judgment is improper, but will leave the party to correct it by motion at special term.</p>

<p>Where an action "between partners for an accounting and settlement of partnership affairs was commenced by the defendant against the plaintiff by the service of a complaint; another action subsequently commenced by the plaintiff against the defendant for the same cause, cannot be sustained, although the complaint in the latter contains special averments and asks extended relief, but without changing the character of the action.</p>

On the 4th day of December, 1861, the defendant was . the owner of a farm of land situated in the town of Solon in the county of Cortland; and on that day leased the same to the plaintiff, for the term of five years commencing on the first of March, 1862; at which time plaintiff took possession of the farm under the lease, and continued in the possession of the whole premises until the 26th of January, 1864, when some difficulty arose between the parties in relation thereto,…

On the 29th day of July, 1868, George Baxter and others brought suit against Zary J. Putney, in a justice’s court, to recover possession of a quantity of stair bolts, and for damages for the detention of the same. The action was brought pursuant to subdivision 10, of sec. 53 of the Code. The plaintiffs gave the required undertaking and the constable took possession of the property.

Motion by plaintiff for revival of injunction and stay of proceedings pending an appeal to the general term from judgment on the report of a referee dismissing the complaint. The motion was first partially heard at special term on the Saturday before the sitting of the general term, but not being decided was renewed at the general term as upon an appeal, by direction of the judge holding the special term.

<p>By the act of Congress of July 29,1850, a mortgage of a vessel, which is recorded in the collectors office at the home port—that is, the port where the owner resides, in pursuance of the provisions of the act, takes effect by its own force, and irrespective of the filing of the mortgage in the county clerk:s office, and has preference over any subsequent purchaser or mortgagee.</p> <p>The cases of Potter agt. Irish, (10 Gray, 414) and Chadwick agt. Baker, (54 Maine JR., 9) holding that in order to protect the title of the purchaser or mortgagee of a vessel, under that act, it is necessary to record the bill of sale or mortgage in the office of the collector of customs at the port of the last registry or enrollment, though not the home port of the vessel, overruled. Congress having created, as it were, this species of property, (ships and vessels) and conferred upon it its cheif value, under the power given in the constitution to regulate commerce, there can be no good reason for entertaining any serious doubt, but it has the power to pass a recording act to protect the rights and title of all persons dealing iu such property.</p>

<p>Motion by plaintiffs for a readjustment of their costs.</p>

<p>Motion for retaxation of costs.</p>

<p>A Gas Company is not bound to furnish a separate meter for each floor of a house, unless the owner or occupants put in separate or independent sei'vice pipes, to connect with the meter.</p>

<p>Where the complaint alleged a cause of action for a certain quantity of hay sold, at an agreed price per ton; also for a balance due—specifying the sum, for personal property sold; also for moneys paid out for the benefit of the defendant, and at his request, in a specified sum; also for work, labor and services done and per for the defendant, for which defendant agreed to pay as much as they were reasonably worth, thatjaaid services were reasonably worth a specified sum:</p> <p>Held, the summons being issued under the 2d subdivision of § 129 of the Code for relief, that the complaint he dismissed with costs, for the reason that it disagreed with the summons. ' With the privilege to the plaintiff, on payment of said costs to amend his summons.</p>

This is an action to recover possession of real property. The complaint alleges that plaintiff being the owner of the premises, leased the same for.a term of years to the defendant Nichols by lease, with covenants against under-letting, unless by the consent in writing of the lessor. That defendant under-let the whole to the other defendants without any permission whatever of his landlord.

<p>Where a person is improperly arrested on an alleged criminal charge committed in Canada, and is detained under such arrest for the probable purpose of compelling him to settle a demand claimed to have been fraudulently made in Canada, and such purpose proving ineffectual, an order of arrest in a civil action is obtained and he is arrested under it:</p> <p>Held a clear abuse of the process of the law, which cannot be sanctioned by the court. Order of arrest set aside with costs.</p>

The action was brought to set aside an assignment executed by William Caldwell, in which he preferred Corrilla Ann, who was his wife, to the amount of $700, the plaintiff claiming that she had no such valid demand against him ,• that it was void as against his creditors, and that they were creditors of his.

On the 6th of November, 1867, defendant contracted, under seal, for the consideration of $13,000, receipt of which was acknowledged, to sell and convey to plaintiff the .house and lot No. 264 (old No. 168) West 40th street, for the price of $13,000 payable as follows: $500 on signing the contract; $6,000 on the 2d of January, 1868; and the residue by assuming a mortgage for $4,000 on the premises, and by a farther mortgage for $2,500.

This was an action brought to recover $41,000, being the damages arising out of a collision which happened in this port on the 9th of November, 1865, between the steamer America and the steamer Corsica. The Corsica was at the time proceeding down the North river, bound to sea. The America was below her and proceeding across the river from the battery to her pier at the foot of Sussex street, Jersey City.

<p>Motion to continue an injunction.</p> <p>In July, 1866, the Peruvian' and • Chilian governments issued conjointly, their bonds of five hundred and a thousand dollars each, amounting in the aggregate, as alleged, to two million two hundred thousand dollars. The bonds state that the governments of Peru and Chili had authorized the minister Plenip otentiary of Peru and the charge d’Affairs of Chili, accredited to the government of the United States, to’ raise funds and to- issue’ bonds to represent the amounts raised. The bonds then declared that said governments of Peru and Chili were indebted to the bearer in the sum of five hundred dollars (or one thousand dollars) in American gold. Interest-coupons were attached, payable on the first day of January and July. They were made payable upon the following, among other conditions, namely: “ That the bonds will be countersigned by Messrs Dabney, Morgan & Co., financial agents of the governments of Chili and Peru, at whose office the service of this debt will be performed.” “ The financial agents shall keep a register of the bonds actually issued, subject at all times to the inspection of the bondholders.”</p> <p>After providing for the mode of payment, the bonds state, that “ in addition to the public faith pledged by the Republics of Peru and Chili and the general hypothecation of all national incomes to the security and service of this debt,the government of Peru hypothecates specially and exclusively to the payment of its interest and redemption, five hundred thousand tons of Peruvian guano from the deposits of the Chincha Islands, and gives to each holder of these bonds and their legal representatives, the right to .take possession of said guano, and export it in the quantity required at the price of twenty-five dollars in gold per ton, on the failure of the above-mentioned governments to pay the interest or effect the redemption of the bonds, or any part thereof, in the manner hereinbefore provided.” The bonds were signed “ F. S. Barreda,” with the seal of Peru, and “F. S. Baruaga,” with the seal of Chili, and countersigned “Dabney, Morgan & Co., financial agents.”</p> <p>It was alleged by the plaintiffs that they were owners and holders of four hundred and sixty-four of such bonds, for one thousand dollars each, and of seventy-two of such bonds, for five hundred dollars each. That previous to their making' the loans upon such bonds and in view thereof, they were assured by the defendants that the bonds were valid and properly issued, and a good security. Six months interest, it was alleged, would become due on' the first day of January, 1868, and the plaintiffs allege that the defendants had in their hands the amount in gold sufficient to pay such interest, having received the same for that purpose from the republics of Chili and Peru, as financial agents thereof, and that the same was held by the defendants expressly for that purpose. It was further alleged that the defendants had informed the plaintiffs that they would not pay such interest falling due on the first day of January, 1868.</p> <p>The relief demanded,was that the defendants be restrained from parting with such money received by them for the payment of such interest; that a receiver be appointed, and that the money in the hands of the defendants be applied to the payment of such interest.</p> <p>The suit was commenced on the 31st of December, 1867, and before the interest "became due, and the right to an injunction was claimed on the ground of the defendants’ announcement that they would not pay the interest falling due on the first day of the succeeding January.</p> <p>Upon these facts a preliminary injunction was granted.</p> <p>The motion now is, to continue the injunction pending the action.</p> <p>Upon the motion, the deposition of Mr. Morgan, one of the defendants, was read. He stated among- other things, that on the twenty-third of December, 1867, the defendants received- notice from the Peruvian minister, not to pay the interest-coupons falling due on the first of January, 1868,on the ground, that the bonds held by the plaintiffs, had been unlawfully issued; that they had been deposited in Mr. Williams’ hands, who, contrary to instructions and agreement, had misappropriated or misapplied them, and bad no authority to part with them. He further stated, that the money in their hands, was the money of the Peruvian government.</p>

<p>The first order, in supplementary proceedings, appointing a referee, &c., must he finished or some order made by the court in the proceeding, before any other order can be made in the premises.</p>

<p>On a motion to vacate an attachment, where the whole evidence, contained in the affidavits on both sides, show that the plaintiff could not have known the facts to which he swore positively in the affidavit on which the warrant of attachment was obtained, therefore there being no preponderance of evidence to sustain it, the attachment must be discharged.</p> <p>In this case, the court considered that there might be evidence enough before it t<? establish that the defendant intended to retain control of his property, as long as the indulgence of his creditors and the law. might permit; that he had found or would find it difficult to meet all his engagements as they had become or might become due; that he had made promises to pay which he had broken, and perhape that he was in a precarious situation, if pressed by his creditors.</p> <p>But there was no such evidence before the court, of hurry, secresy and sacrifice in the disposition of his property as to warrant the deduction that he intended to withdraw from the grasp of the law his property, when his creditors are in a position to seize it. Until then he is the owner and entitled to dispose of it as he thinks proper, provided he does not violate any positive law.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiffs, rendered at the general term.</p>

<p>On the trial of an action brought for services as an attorney and counsellor at lawt where the attorney was on the stand as a witness, and had testified that an appeal in a cause was taken to the general term, under the defendants direction; the defendant’s counsel then asked the witness the following question in reference to that appeal: (i Was there anything to argue?” The question being objected to was excluded by the court, and the defendant excepted:</p> <p>JSeld, no error. The obligation of the attorney to be in attendance, by himself or counsel, was the same in either case, and the-fact that there was nothing to argue in the sense intended by the question, would have been no proper ground of inference that it was not in fact argued, in the legal sense of submitting the case to the general term for'deoision.</p> <p>No objection to the account rendered by the attorney, having been made by the defendant until the commencement of the action, being over two years after such presentation, it was properly regarded as an account stated, and drew interest from the time it was rendered.</p>

<p>The defendant moves for an additional allowance, and the plaintiffs move for leave to amend their complaint.</p>

This action was brought by the plaintiff against the defendants to recover damages for a malicious prosecution: The plaintiff was arrested by the defendants in a justice’s court in New York city. The action in which he was arrested was for fraud, the defendants alleging that he had obtained money from them by means of false and fraudulent representations.

This was an action upon a promissory note, signed by • defendants, the signature oí Lawrence being by a mark, and was tried at the June circuit for Cortland county in 1866. The defendants answered separately; John admitting the execution of the note, and setting up a counter-claim and Lawrence denying his execution of the note, and setting up counter-claims.

The summons and complaint were served together. The defendant after giving notice of appearance, moved to set aside the complaint because of variance. The summons, contained the notice specified in the second subdivision of § 129 of the Code, and the complaint set out a cause of action upon contract for the recovery of money only, and contained a notice that judgment would be taken for a sum certain.

<p>In the village of Jamaica, Queens county, N. Y., a village ordinance was passed in July 1868, entitled an “ Ordinance in relation to manure and other offensive substances.” The first section of which reads as follows:</p> <p>“ It shall not be lawful for any person, persons or corporations, to unload, discharge or put upon, or along the line of any railroad, street or highway, or public place within the boundaries of this village, any manure, offal or other offensive substances, from the first day of June to the first day of October, in each and every year, under the penalty of $50 for each and every offense. .Nor shall cars or flats loaded with these or similar offensive substances, be allowed to remain or stand on or along auv railroad, street or highway, in this village, under a like penalty of $50 for each and every offense.”</p> <p>On appeal from a. judgment rendered by a police justice of the village of Jamaica, against the defendants for the penalty of $50, incurred under the last clause of section one of the ordinance above mentioned:</p> <p>Held, 1st. That the answer of the defendants having expressly denied that they were a corporation, it was a failure of proof on the part of the plaintiffs in not proving the incorporation of the defendants.</p> <p>2nd. That the act of the legislature, in 1866, creating the metropolitan sanitary district and board of health therein, which includes the towns of Jamaica, Flushing and Newtown, m the county of Queens, entirely supersedes the ordinance of the village of Jamaica, aforesaid, on this subject; and not only supersedes it, but absolutely prohibits any action by the village under the ordinance.</p> <p>And 3d. That that part of the village ordinance under which this action is brought (if operative), is so broad in its language, as to interfere with the rights and privileges conferred upon railroad corporations by the general laws of the state, and is therefore void.</p>

<p>The following brief opinion of Judge McCmnsr in this case, should have followed the opinion of the court by Judge Freedman, on page 330, ante. Through some inadvertence, however, it got mislaid at that time. Rep.</p>

<p>Where the plaintiff recovered a judgment of $50 damages against the defendant and $8.05 costs, before a justice of the peace, and the defendant appealed to the county court, specifying in his notice of appeal that the damages should have been for $5, and the costs of the justice, instead of $50:</p> <p>Whereupon the plaintiff served an offer allowing the judgment to be corrected by being entered for $35, instead of $50, damages in his favor, which offer the defendant did not accept; and on the trial of the appeal in the county court, the plaintiff recovered $25 damages, held that the 'plaintiff was entitled to costs.</p> <p>Had the defendant accepted the offer of the plaintiff, he would have been entitled to a judgment against the plaintiff for costs and disbursements before the justice of $20.05, which would have been more favorable to him than the reduction of the offer on the trial to $10.</p>

The plaintiff claims in this action to recover the value of a certain building, located upon the lands of the defendants, which he claims as owner, and which was taken possession of and removed by defendants. The building was erected by Mr. Vroman, in the fall of 1849, at which time, the'land upon which it was erected was owned by Alonzo 0. Paige and others.

<p>A notice of appeal which fairly apprises the opposite party that the damages are excessive, is sufficiently specific under section 371 of the Code to call upon such party to make an offer.</p> <p>If such party remains silent, he does so at his peril, and if the verdict on appeal is reduced ten dollars, the appellant is entitled to costs.</p>

The Albany and Northern railroad company formerly built and used and occupied a portion of its road across and under the public highway, leading from the village of Schaghticoke to the south in said town of Schaghticoke. The railroad on its surface was forty-five feet below the surface of the highway at the place of said crossing, and the company built a bridge across said railroad track, for the use of the travelling public.

The complaint simply claims a balance of $40 due on a note for $50 by defendant to plaintiff. The answer sets up a general denial, and a former suit on said note in bar of this.

<p>The master of a vessel, has no lien on the freight nor on the vessel for liis wages. The maxim that “freight is the mother of wages,” has no relevancy or application whatever to the contract of a master for his compensation, as such. His contract is to be governed by its terms, and by the same rules which are applied to the construction of other contracts.</p> <p>Where the master agreed with the owner to take charge of the vessel then lying at the port of New York, for her then present voyage to Australia and return to New York, according to instructions received, and the owner agreed to pay him $150, for each and every month of said period dining said outward and return voyage—and during the voyage the vessel put into the port of Bahia, South America, for water, and again put into Cape Town on the coast of Africa, fur water and fresh provisions; after leaving Cape Town, she encountered heavy winds and lost her rudder—leaked badly, when she was run into Port Louis on the Island of Maurituis, where she was abandoned to the underwriters, and the voyage abandoned:</p> <p>Meld, no fault being established against the master, that he was entitled to recover wages for the period during which he performed the service as masier, to wit: from the time of the inception of the voyage, on the 8th of February, 1853, to the date of its abandonment and breaking up on the 8th of September, 1853.*</p>

The plaintiff in this case instituted supplementary proceedings against the defendants to collect a judgment recovered by them against the defendants, and for that purpose procured an order from his Honor Judge Monell, requiring the defendants to appear and be examined concerning their property, it appears that afterwards the' plaintiffs procured an order from his Honor Judge Freedman, appointing a I’eceiver of the property of the judgment debtor.

The relator having been indicted in the court of general sessions, and brought up for trial therein, pleaded guilty of petit larceny from the person of Emily C. Cuyler, of goods, &c., of Richard M. Cuyler.

Where a party takes negotiable paper before its maturity, in payment of a debt. ppst due, it constitutes him a holder for value. Held: that the evidence as to the indorsed note being received in payment of the two notes past due, being precisely the same that it was in regard to the notes not dne, the plaintiff was entitled to recover the full amount of the indorsed note—the note in suit—being the amount of the four notes.