Volume 38 — New York Reports

<p>An assignment by an insolvent firm, for the benefit of creditors, in pursuance of an agreement between the debtors and certain of the creditors,' that the latter shall be preferred in a second class to the extent of fifty cents on the dollar of their claims, on condition, that said preferred- creditors discharge the firm from all liability upon the balance of their indebtedness to such creditors, is not void as against creditors not parties to the agreement, and not preferred by the assignment. m</p> <p>The distinction between this case and that of Hyslop v. Clarke (14 Johns. 458), and of Grover v. Wakeman (11 Wend. 187), discussed in the opinion of Parker, J.</p>

<p>Provisioned Remedies — Arrest—Judgment defined.</p> <p>An order of arrest in a proper case may be made during- the progress of a trial, and before a final judgment settling the rights of the parties thereto. But a judgment so modified as that an execution cannot be issued to enforce it, until after further adjudication, is not such a judgment as will prevent the making the order 'of arrest as one of the provisional remedies which may be necessary for the security of the Plaintiff.</p> <p>Where a judgment had been entered on the default of one of the Defendants, and such Defendant subsequently appeared by attorney and procured an order for him to serve Plaintiffs with an answer within ten days, and the judgment by default to stand as security, held, that the judgment so modified was not such a judgment as to prevent the granting of an order for the arrest of Defendant pending the trial upon the issue raised by his answer.</p>

<p>Pleading— Complaint—Joinder of Causes of Action—Demurrer—Motion to strike - out Complaint</p> <p>Distinct causes of action which may be united in the same complaint, must be separately stated, according to § 167 of the Code. But in such case distinct causes of action not being separately stated, the remedy is by motion, and' not by demurrer.</p> <p>An omission to separately state, by distinct counts in the same complaint, separate causes of action which may be joined in the same complaint, is not a misjoinder under § 172 of the Code.</p>

<p> Appeal—Rules of Court—Absence of Counsel. </p> <p>The 25th rule of this Court was not intended to impose upon the Judge the duty of acting as counsel for the party who does not appear to prosecute or defend, but to save to parties acting in good faith a further opportunity of presenting a printed brief, and save to the Court the loss of time incident to motions to open judgments, etc.</p>

<p> Execution—Sheriff’s liability for Interest—Failure to pay over or Deposit. </p> <p>On the receipt of an execution issued upon a judgment, the Sheriff is required to proceed to collect the debt and interest from the rendition of the judgment; and, having collected the same, it was his duty forthwith to pay over to the Plaintiff in execution, or to his attorneys, the amount so collected. ' When circumstances require it, he may bring the money into Court, that the Court may order to whom it shall be paid.</p> <p>But neither paying the money to the proper party in execution, nor bringing it into Court, he will be chargeable with the amount collected, and the interest due thereon from the time of the collection of the same, and the necessary costs of compelling such payment.</p>

<p> Pleading—Complaint—Defeat of Parties—Demurrer—Power of Referee to Amend. </p>

<p>In this case there are two appeals by the Defendant—one from a judgment of the Supreme Court in the Seventh District, rendered in favor of the Plaintiff on the report of a referee; and the other from an order of the same Court, denying a motion for a new trial, on the ground of surprise and newly^discovered evidence. Ho argument is made to show error in the judgment.</p> <p>The action was on a promissory note made by the Defendant, dated 1st April, 1857, for $3,257.01, with interest, payable one day after date, to Eebecca Barnum or order, and by her endorsed to the Plaintiff.</p> <p>The defence was : (1) general denial; (2) counterclaim and set-off of moneys paid by Defendant at request of Milo Barnum, the husband and agent of said payee, to apply on said note before the transfer of the note, which took place after the note became due; (3) counterclaim, that the said Milo Barnum was the agent of the said Eebecca in taking the note in suit; that the consideration thereof arose out of matters of deal between the Defendant and said Milo, in which the latter acted as agent of the said Eebecca, and in her name; and that Defendant subsequently paid large sums of money, at the request of said Milo, as such agent, and in pursuance of an agreement with him that they should apply on the note in suit.</p> <p>, The Defendant and Milo Barnum were examined, and gave conflicting evidence. The referee reported in favor of the Plaintiff for the whole amount of the note in suit; holding that as the draft and note set up by the Defendant were made by the husband in his own name, they were primá facie on his own account, and that there was no evidence to explain or contradict this prima facie showing; and that as the Defendant held the affirmative, his claim could not be allowed. Mrs. Barnum was subpoenaed by the Plaintiff, and attended at Rochester, where the case was tried, but was not called. The Defendant alleges that he had not transacted any of the business with her personally, and did not know what she would testify to; but supposed from her position, and from the fact of her being subposnaed by the Plaintiff, that her testimony would corroborate that of her husband, and would prejudice the defence.</p> <p>Judgment was entered Feb. 15, 1861, and exceptions to the report were filed in February, 1861. In January, 1862, the Defendant claims to have discovered that she would testify that she never considered the note in suit as her property, and never claimed any interest in it or exercised any control over it, but that it was made for the benefit of her husband, and she always considered it his absolutely, and he was at liberty to use it as he chose, without any interference of hers. She supposed it was paid in full, or nearly so, until a short time before it was sued in her name, when her husband told her it was not paid. The affidavit of Mrs, Barnum forms a portion of the papers.</p> <p>On the 3d of March, 1862, the motion for a new trial, on the ground of newly-discovered evidence, was heard upon the affidavits and case now presented, “ and opposing affidavits on the part of the Plaintiff,” and was then denied. From this order the Defendant appealed to the General Term, where the same was affirmed.</p> <p>He now appeals to this Court.</p>

<p> Practice—Trustees—Express Trust—Liability for Costs—Order of Cowt. </p> <p>Where Plaintiffs sue as trustees of an express trust and are defeated in the' action, no execution can be issued against them personally, except by the express order of the Court.</p>

<p> Conflict of Evidence—Negligence—Question for Jury. </p> <p>On an issue of negligence, it is a matter of right on the part of the Plaintiff to have the facts submitted to a jury, where there is conflicting evidence on the question of negligence, or where the fact of negligence is to be inferred from a variety of circumstances.</p> <p>The fact that an intelligent Judge, who tried the case, regarded it as within the above rule, is to the Appellate Court some evidence that it was a question for the jury.</p>

<p> Practice—Charge of Judge—Assault and Battery—Amount necessary to carry Costs. </p> <p>In an action for an assault and battery, it is not error for the Judge to instruct the jury as to what amount of verdict necessary to carry costs against Defendant.</p>

<p> Costs—Statute in relation to School IFrustees—Certificate of Good Faith. </p> <p>Where trustees of school districts are called upon to answer for acts done by them in virtue, or under color of their offices, and it appears that they have acted in good faith, they are entitled to a certificate of the Judge who tried the cause, to that effect, that they may be exonerated from the payment of costs.</p> <p>And when such certificate has been granted, it is error to tax such trustees with the costs in such case.</p>

On the 28th day of February, 1861, the Appellants presented to O. W. Van Voorhis, the Justice of the Seventh District Court of the city of Hew York, the affidavit of Frederick Johnson, one of the Appellants, and thereupon demanded process to remove the Relator,'Thomas Reilly, from the premises known as Hermitage Hall, in the city of Hew York, upon the ground that said Reilly was a tenant of the said Appellants, and was holding over after the expiration of his term, without…

<p> Dismissal of Complaint—Pendency of another Suit for same Cause of Action. </p> <p>When there is no evidence furnished under the answer setting up a defence, that a suit is already pending for the same cause of action, the Court cannot presume the answer to be true.</p>

This was an action brought by the assignee of an insolvent firm to recover money for work done by the assignors for the Defendants, under a contract to build and complete two steam engines, on a boat of the Defendants, and extras connected therewith, and for other work done of the same character, for which the Plaintiff claimed a balance of $3,347.37. The Defendants set up a counterclaim of various items.

This was an action brought hy the lessee of a warehouse building in Brooklyn, against the lessor, to recover the expense of caulking the floors of the building, to prevent leakage from one story to another, whereby the goods in store were exposed to injury.

<p> Res adjudicata—Evidence. </p> <p>A judgment of a Court of competent jurisdiction is final and conclusive upon the parties thereto, in respect to all matters then litigated, or which should then have been litigated and settled.</p>

<p>Upon an indictment for selling unwholesome heef, knowing it to be such, the defendant’s counsel requested the judge to charge the jury, that, if they should find that the beef was purchased as an article of merchandise, and not for domestic consumption, then the indictment could not be sustained. The judge refused so to charge, and the jury found the defendant guilty. The General Term reversed the judgment, on the ground of error in the refusal of the judge to charge as requested. Held, that the refusal was not error, and the conviction, being properly found, must be affirmed.</p> <p>The opinion in the case is worthy of attention, though not fully concurred in by the court.</p>

<p>This was a common law certiorari to review the action'of the assessors of the town of Queensbury,and compel them- to strike from the assessment roll of said town, for 1866, an assessment for personal property," ahd " an entry on the assessment roll of personal property erroneously omitted in 1865. Instead of a return, the case has been argued upon h"statement-agreed'upon as the facts,"With a stipulation for the entry of judgment.</p> <p>The case presents two questions-for consideration:</p> <p>1. Was the entry on the assessment roll of $30,000, as for</p> <p>personal property,-alleged to have been-' erroneously omitted from the roll-Of'1865, authorized ?</p> <p>2. Was the-assessment- for $40,000, as for personal property; legal?</p> <p>The first question was decidéd in favor of the'EeMórs" by the General Term, and as no- appeal is taken from that decision by the assessors:, the point does not arise in this Court, and the statement of facts respecting the same is- omitted- here: ‘ "</p> <p>Second. Upon" the liability of the Eelators to an assessment-of $40,000 for personal property, the -facts are theséThe capital of the corporation is $100,000, all of which is paid in, ahd its surplus profits is $141,932.55; 'making, in- all;, '$241,932.55.-'</p> <p>Its assets are the following :</p> <p>U. S. securities.................... $160,400 00</p> <p>Bonds and mortgages................ 36,305 56</p> <p>Hew York bounty loan............. 3,000 00</p> <p>198 shares bank stock.............. 9,900 00</p> <p>Cash on hand and in bank.......... 19,575 59</p> <p>Cash due from agents............... 7,251 40</p> <p>Real estate, office, &c.............. 5,500 00</p> <p>-$241,932 55</p> <p>Of these the following are exempt from taxation, or are otherwise taxed, viz.:</p> <p>U. S. securities.................... $160,400 00</p> <p>Bank stock........................ 9,900 00</p> <p>Real estate, office, &c.............. 5,500 00</p> <p>And the following items are to be deducted, viz.:</p> <p>Losses unpaid..................... 9,642 00</p> <p>10 per cent, on its capital........... 10,000 00</p> <p>-$195,442 00</p> <p>Leaving, after these deductions $46,490 55</p> <p>It further appeared that there were outstanding policies of insurance, in full force, exceeding in amount $22,000,000, on which the premiums had been received and included in the assets of the company, and that it would cost $80,000 to reinsure such outstanding risks. It was also shown that said corporation made a dividend of 10 per cent, last January, which was the first dividend it had ever made; that there had been some sales of its stock just prior to such dividend, at ten or twelve per Cent, premium, which was the highest price ever paid for said stock, or for which it had ever sold; that since said dividend there had been several sales, but none at a higher price than par value, together with interest added from date of dividend to time of sale. The assessors refused to make any allowances on this account, but assessed the company upon the sum of $40,000. In theh appeal to the General Term of the Fourth District, this decision was affirmed, and the Delators now appeal to this Court.</p>

<p> Co.-pcmimrship—Dissolution—Notice to Dealers. </p> <p>A creditor of the firm, who hag been accustomed to deal with the partnership, is entitled to special notice-of dissolution, to exonerate the retiring partner. A general, notice which cannot be brought home to the knowledge of the creditor is not sufficient.</p>

This action was brought in the New York Common Pleas against the respondents, as indorsers on a promissory note drawn by one Nichols; and their defense was, that they were discharged from liability, by an extension of time given Nichols by the appellants. The cause was first tried, December 23d, 1857, before Judge Ingraham, without a jury, on an agreed state of facts.

<p>By the charter of the Hudson River Railroad company, the corporation are' relieved from any obligation to maintain fences, where their railroad is constructed in the river, and this exemption is not changed or removed by the provisions of the general railroad act of 1848.</p> <p>The different channels or creeks separating and flowing around intervening islands in the stream, though, in local usage, receiving different names, are a part of “the river,” not less than the main channel itself.</p>

<p>Set-off — Tort Contract — Judgment—Assignment</p> <p>Damages in an action for fraud in obtaining the possession of personal property cannot be set off against a claim for rent.</p> <p>Where R. was prosecuting an action against 0. for such damages, and 0. was prosecuting an action against R. for rent, and both actions were referred to the same referee, who, on the same day, reported in fayor of each Plaintiff, the Plaintiff 0., before judgment was entered on either report, assigned his claim against R., and the report therefor to his Attorney T., in consideration of his indebtedness at that time to T.</p> <p>Held, that this assignment was effectual to prevent a set-off.</p> <p>Judgment was, by leave of Court, afterwards entered up in the name of T. against R., after which R. entered judgment against G., and commenced this action to compel a set-off of the one judgment against the other. Held, that he was not entitled to the set-off.</p>

The action was brought originally in a Justice’s Court by the Plaintiff, for damages for the cutting down and removing his fence. Held: “ that the Defendant had acquired a right of way across the Plain tiff’s lot ” — thus sustaining the alleged justification of the Defendant in removing the fence built by the Plaintiff across the road in question, and ordered judgment for the Defendant.

The action was to recover for work and labor performed and materials furnished by the Respondents, as carpenters, upon ahouse o.f the Defendant, in Brooklyn, &c., claiming to recover $454.46. The answer denied any claim beyond the sum of $30, and also alleged that the work was performed at the request of one Bon-nell, who was the contractor with Defendant for the construction of the house, and alleged payment toffiim.

This is an action upon a promissory note of one thousand dollars, made by the defendants and payable to the order of Benedict and Farnham, at the Hatters’ Bank, Bethel, Conn., three months after date, and is dated December 21st 1859. The cause was tried before a referee who found the following facts, to wit, that the defendants, as copartners in business, made the promissory note mentioned and set forth in the complaint in this action.

<p>The action was brought against the defendant, in the Superior Court of New York, for damages sustained by the plaintiff, in consequence of injuries received by him, in being thrown from a one-horse car of the defendant, through the negligence of the defendant’s driver. The plaintiff on the ninth day of August, 1858, wishing to go inside of the car with a bundle of newspapers, which he was carrying for his mother, who kept a newspaper stand at the corner of Thirteenth street and Sixth avenue, was directed to get on the outside. While starting to get off he was thrown from the car by its sudden movement, and seriously injured. The cause was tried before a jury, and one of the judges of the Superior Court, and the jury rendered a verdict in favor of the plaintiff for $2,500. TJpon the trial exceptions were taken by the defendant, to the refusal to dismiss the complaint by the court, and to the refusals to charge as requested, which are sufficiently stated in opinion. Judgment was entered, and after affirmance on appeal by the General Term the defendant appealed to this court.</p>

<p>Contract — Specific Performance — Waste—Measure of Damages.</p> <p>When a Court of Equity decrees the speoifie performance of a contract for the conveyance of land, it will proceed to give full and complete relief by awarding to the Plaintiff the damages which he has sustained by being kept out of possession, and also the damages by waste committed by the Defendant.</p> <p>And such damages will be allowed down to the time of the final assessment, although the litigation may have been prolonged for many years after the interlocutory decree, which declares the Plaintiff’s title to specific performance. Damages for waste Should be ascertained by the value of the wood, timber, and other property carried away by the Defendant, and interest thereon should be allowed from the time when the Plaintiff is let into possession of the premises, and down to the final assessment.</p> <p>The general rule for the allowance of damages to the Plaintiff for being kept out of possession is to treat the vendor as trustee of the purchaser in respect of the land, and accountable for the rents and profits, or value of the use ancj occupation; and the purchaser, if the purchase-money has not been paid, will be charged with interest. But this rule is not invariable, and its application will be varied by special circumstances.</p> <p>When, as in the present case, the value of the land consisted chiefly invaluable clay pits thereon, to be made productive by consuming the clay in brick-making, and the land was of trifling value for any other use, the purchaser, having paid the purchase-money, should be allowed an annual sum as damages equal to interest on the purchase-money, and also interest on each annual sum down to the time of the assessment.</p>

<p>This action was brougSt against the Defendant, who, on the 31st July, 1861, as Sheriff of the county of Kings, had levied an execution, issued on a judgment against one George R. Ayres, upon a vessel then in the alleged possession of the Plaintiffs, called the barque “ Florida.”</p> <p>The Plaintiffs, residing in Philadelphia, claimed title and iight of possession under a mortgage dated Noy. 30th, 1858, made to the Plaintiffs by the said George K. Ayres, also a resident of Philadelphia, to secure the payment and satisfaction of- all acceptances, notes, endorsements, and other obligations, made or incurred by him to the Plaintiffs, and all which might thereafter become due 'to them, or which might be lent or advanced by them for his account or accommodation. And in case of default at any time in .the payment of any one of the debts, notes, acceptances, or obligations, authorizing the Plaintiffs, or their agent or attorney, to take possession of the said barque “Florida,” and to sell her at public auction or private sale, to pay what may be due, &c. The vessel remained in the possession of the mortgagor. The transactions between the parties continued until the spring of 1861. In December, 1860, the vessel sailed from the port of New York to Europe and returned, arriving in New York on the 4th, and was reported on the 5th of June, 1861. Meantime, in April and May, 1861, certain of the notes secured by the mortgage became due and were not paid, and the Plaintiffs, receiving information of such arrival, instructed Wilson & Camman, of New York, to take possession .thereof for them by virtue of the mortgage sent to Wilson & Cam-man for that purpose. Wilson & Camman had, on the application of Ayres, who was referred to them by the Plaintiffs, consented to advance money to pay off the ship’s crew and other expenses.</p> <p>On the 7th of June, in pursuance of the Plaintiffs’ instructions, Wilson went on board the ship and took possession on behalf of the Plaintiffs, and when her cargo was discharged, she was removed .to the Atlantic Docks and a man placed in chai’ge by them for the Plaintiffs. The Plaintiffs proceeded to negotiate for a sale, and made an agreement of sale to the United States, but on the 31st July they had not received payment nor delivered the vessel.</p> <p>On the last named day the Defendant levied thereon an execution on a judgment confessed by the mortgagor to William Ayres, . another resident of Philadelphia, and took possession ; and for the .taking possession under that execution this action was brought.</p> <p>It was claimed on the trial that Wilson & Camman were agents of the mortgagor as well as of tbe mortgagees, and that they could not, by taking possession and putting a man in charge, give to tbe Plaintiffs any possession of tbe vessel.</p> <p>Also, that tbe vessel having been sold, tbe action would not lie in tbe name of tbe Plaintiffs. '</p> <p>And especially that tbe mortgage was absolutely void by tbe laws of Pennsylvania, because it was not accompanied by tbe possession of the vessel, and that the mortgagor had never consented to the possession of the Plaintiffs.</p> <p>To prove the law of Pennsylvania, tbe Plaintiffs examined Maximilian Goepp, who testified that be is a member of the Pennsylvania bar and acquainted with the law of that State. That transfers of personal property, bills of sale, and chattel mortgages, unaccompanied by a change of possession, “.are and, always have been, by the law of Pennsylvania, fraudulent and void.” That there is no statute in that State on the subject.' No other evidence appeared in the case in regard to the law of Pennsylvania.</p> <p>Some question in regard to the taking of possession was submitted to the jury; -but in reference to the claim that the mortgage was void, the Judge instructed the jury in these terms: “TJpon the evidence in this case I charge you that the Plaintiffs’ mortgage is a valid mortgage.”</p> <p>To this the Defendant excepted.</p> <p>The Plaintiffs had a verdict and judgment. The.judgment being affirmed in the General Term of the Supreme Court in the-Second. District, the Defendant appealed to this Court.</p>

This was an action commenced by the Plaintiff’s intestate, and continued in her name, to recover foiir months’ salary, alleged tó have been due the intestate for services as travelling agent for the Defendants.

This is an action to recover tbe possession of certain machines, alleged by tbe Plaintiff in the complaint to be “ the goods and chattels of the Plaintiff.” The answer denied that the Defendant had become possessed of, or that he wrongfully detained the property in question. It also contains a denial of the value, and an allegation that no demand had been made upon him for the goods.

<p>Deed — Condition—Incumbrance—Ejectment—Improvenúnts.</p> <p>A condition in a deed of assignment restricting the assignee from building on a certain portion of the premises, is such an incumbrance as will excuse a party from completing the contract who has purchased without notice of such condition.</p> <p>A party for whose benefit such condition was inserted has an easement in said premises, and may maintain a suit to enjoin a party from violating such condition.</p>

<p>Judgment — Foreclosure—Report of Sale — Interlocutory Judgment.</p> <p>A judgment is not to be deemed interlocutory where nothing thereafter remains to be judicially determined, but is to be deemed to be final.</p> <p>The time within which an appeal must be taken, must be reckoned from the date of said judgment.</p>

This was an action to recover the value of the Plaintiff’s services in procuring the release, at Washington, of the steamship S. S. Lewis, which had been condemned for a violation of the revenue laws. The employment was not denied in the pleadings, nor the rendering of service. The question was upon the value, simply. The only question made in the Appellant’s points is in relation to the evidence given by E. K. Collins.

<p>Husband and Wife — Malicious Prosecution — Personal Liability of Wife.</p> <p>In a malicious prosecution instituted by the husband and wife, the wife will not be personally liable, if she acted in the matter only by the direction and in the presence of her husband.</p> <p>In an action against husband and wife for a malicious prosecution, it is competent to prove by the husband that the wife acted by his direction, and in his presence only, in the matter.</p>

<p>Contract for service. Where, under a contract for a year, as 1859, service is continued in 1860, 'without any new arrangement, it seems, that the terms of the original contract will be understood to be renewed.</p> <p>Non-fulfillment of contract from incapacity. The discharge of an employee, because of habits which disqualify him for the proper performance of his duties, works the same forfeiture as a voluntary abandonment of service. By his own fault, the employee is rendered incapable of fulfilling his agreement.</p> <p>Application to this case, of Purchase v. Matteson (25 N. Y. 211), and Hoaglamd v. Miller (16 Abb. 103), considered.</p>

<p>Evidence — Grounds of Objection — Error—New Trial.</p> <p>It is incumbent on a party objecting to the reception of evidence, to communicate to the Court and opposite party the nature and grounds of his objection, to entitle himself to a new trial for an error in overruling such objection. ,</p>

The Defendant contracted, in writing, witb one Ilorton, to build a saw-mill for him upon the Defendant’s land — Horton furnishing the materials… Held: as a legal conclusion, that the promise of Defendant to the Piaintiff was within the Statute of Frauds, and that the Defendant was not liable to the Plaintiff thereon, and gave judgment in favor of the Defendant for the amount of his account against the Plaintiff, which was affirmed, upon appeal, by the Supreme Court; and the…

<p>Local Laws — Tax Levy of 1867 — Title.</p> <p>Section 8 of chap. 586, of Laws of 1867, is local in its character, and comes within the prohibition of art. 3d, section 16, of the Constitution.</p> <p>Section 8 of the above Act, so far as it relates to the term of office of Councilmen in the city of New York, is local in its character.</p>

Action to recover possession of certain dry-goods which the Plaintiff claimed as his property, and which he claimed he had delivered to one Carroll, as agent, to sell on Plaintiff’s account, and for his benefit. The Defendant claimed that the goods were the property of Carroll, and made title thereto in himself under an execution issued out of the Supreme Court, against Carroll, which he, as Sheriff, had levied upon said goods.

<p>Corporation — Directors as Grantors — Limitation of Action.</p> <p>Where a majority of the directors of the company are grantees of the franchises of the company, they cannot buy of themselves the grant for the company, nor can they create, renew, or continue a debt against the company to themselves, by passing resolutions as directors.</p>

<p>Escape — Defences—Allegations of Answer — Trover and Conversion — Judgment — Execution against the Person.</p> <p>In an action brought against a Sheriff for an escape, the Defendant, to avail himself of the defence that the prisoner escaping was recaptured before suit brought, must set it up in his answer.</p> <p>So also, that he was prevented from recapturing the prisoner through the fraud of the Plaintiff. v</p> <p>It seems, that on a judgment in an action for the wrongful conversion of personal property, the Plaintiff is entitled to an execution against the body of the Defendant.</p>

<p>Evidence. Exceptions to testimony. Exceptions to testimony, in itself wholly immaterial to any issue in the case, are not available upon appeal.</p> <p>Appeal review. Where the finding of a referee, upon questions of fact, is wholly without evidence, it can he reversed hy this court; but, if the testimony is conflicting, and the finding has evidence to sustain it, it cannot be reviewed here.</p> <p>Attorney and client. Bar to recovery. Without a statement of the case, what seems to he determined is, that an attorney, conducting various suits for a client, by commencing an action for the recovery of compensation for his services while the causes are still pending, and under his direction, which suit we may suppose to he for some cause discontinued, does not thereby bar his subsequent right of recovery for those services.</p>

<p>Commission Broker — Evidence—Inference,</p> <p>Where a broker has been employed to sell real estate, and has advertised the same, and a sale is effected in his presence, it may be presumed that he procured it to be made, even though he do not prove that fact by positive evidence.</p>

This action was brought by the Plaintiff against the Defendant’s testator, to restrain him from prosecuting the Plaintiff for the recovery of rent claimed by the testator to be due upon two leases of certain real estate in Broadway, in the city of New York, given by the testator and others to one Earle, and by the latter assigned to the Plaintiff; also to reform a chattel mortgage* given by the Plaintiff to Earle, and by him assigned to the testator, and an agreement…

This action was commenced before a Justice of the peace in the town of Saratoga Springs, on the 21st day of February, 1857, and was for taking and carrying away lumber belonging to the Plaintiff. The defence was, that said lumber was the property of one J. H. Calkins, and as such had been levied upon by the sheriff, under execution in favor of Defendants. The Justice gave a judgment in favor of Plaintiff for $70.56.

<p> Contract—Failure of performance by one party—Rescission—Damages. </p> <p>In every contract between parties, where the performance by one party presupposes some act to be done by the other party prior thereto, or contemporaneously therewith, the neglect or refusal to perform such act not only dispenses with the obligation which the other party was under to perform on his part, but, where the circumstances are such that a rescission of the contract will not afford an adequate remedy to the party who was ready to perform, he is entitled to a recompense against the delinquent equal to the damages which such delinquency caused him.</p> <p>If the special circumstances under which a contract is made be communicated by Plaintiff to Defendant, the damages resulting from a breach of such contract, being such as might have been reasonably contemplated by the parties on such failure, would be a proper measure of the amount to be awarded by the jury for such breach.</p>

<p> Master and servant—Negligence. </p> <p>The master is liable for damages occasioned by the negligence of his servant in performing the duties imposed upon him by the terms of his employment.</p> <p>Where Defendants had hired Plaintiff to keep for them horses by the week, Defendants furnishing a servant to take charge of the horses; and the said servant, in taking care of the smrie, conducted so negligently, that he caused Plaintiff’s barn and contents to be burned: Held—Defendants were liable.</p>

<p>Contract— Offer of Reward—Information given before offer—Assent.</p> <p>Where the Defendant offered a reward “ to any person or persons who will give such information as shall lead to the apprehension and conviction of the person or persons guilty of the murder of a certain unknown female,” such reward is not payable to one who never saw the offer until after the apprehension of the criminal, and who did nothing to promote such apprehension after the offer of reward was made, notwithstanding the apprehension was effected in consequence of information given by him before the reward was offered, and notwithstanding, also, he was active in procuring and giving evidence and communicating facts to the prosecuting officers after such apprehension, and on the trial, in the hope and expectation of receiving such reward.</p> <p>Such an offer proposes compensation for what shall be done thereafter, not for what has been done already; and unless information be thereafter given which leads to both apprehension and conviction, the reward is not payable.</p>

The Plaintiff sought to recover the amount of two executions, which came into his hands as sheriff of Rensselaer county, 'September 17, 1859, against Francis Davis; one for $713.60, and interest from June 17,1859; and the other for $783.25, and interest’ ■from June 17, 1859. These executions were levied on one rosewood piano, one piano-stool, and one looking-glass, on the premises of Burrows Cure, where Cure resided, and where Davis did not reside, September 19, 1859.

The Defendant is a railroad corporation, engaged in the transportation of freight and passengers, by steam power, along the east shore of the Hudson river, between New York and Albany. The Plaintiff, on the 19th April, 1860, was a passenger on a through ticlcet from the city of New York to East Chatham, by steamboat to Hudson, and from Hudson to Chatham by the Hudson and Boston Railroad.

Action to- recover fifteen hundred dollars, alleged to be due to Plaintiff as the balance of'the purchase price agreed to be paid by Defendant for one quarter’s interest in Euyre’s patent for improvements in stone-dressing machines. The answer admitted the purchase, but alleged that the price was one thousand dollars, and alleged payment of the latter sum.

This was an action of ejectment, commenced in 1855, in the Superior Court of the city of New York, and tried in June, 1858, before Mr. Justice Pierrepont and a jury.

This action is brought to- set aside certain assessments upon lands of the Plaintiff, to defray the expense, of grading and paving Niagara Street, in the city of Buffalo, and for various crosswalks, sewei’s, etc., and to restrain the Defendants, from taking any proceedings to collect the assessments. The Defendants demurred to the complaint. The Special Term overruled the demurrer, and, upon appeal, the General Term of the Eighth District affirmed the judgment.

<p>This was an action against principal and sureties, on a promissory note for $412 and interest, payable in one year, made to the Plaintiff for money loaned. The defence was usury. The evidence bearing upon the negotiation between the parties was conflicting ; the Defendant, Cornell, who obtained the loan, testifying that it was at first expressly agreed that he should pay ten per cent, for the money, and that the rate was subsequently augmented to about thirteen per cent.; while the Plaintiff testified that the sum reserved by her out of the amount indicated by the face of the note, viz., the sum of $21.50, was reserved as compensation for her services and expenses in collecting the money necessary to complete the amount to be loaned, and that such services were rendered at the request of Cornell, and upon his express promise to pay her therefor.</p> <p>The evidence being closed, the Defendant’s counsel requested the Court to direct a verdict for the Defendant, on the ground that, as a matter of law and on the Plaintiff’s own evidence, the defence of usury had been made out, which the Court declined to do, and the Defendant excepted. The Court charged the jury that, if the excess over seven per cent, was taken exclusively for expenditures of time, services, and money, in obtaining the money to be loaned to the Defendant, without any intention to evade the statute against usury, and if the amount thus taken was not more than a reasonable charge for such expenditures, and if they were made at Cornell’s request, and on his promise to pay therefor, then the note was not usurious. To which charge the Defendant excepted.</p> <p>The Defendant requested the Court to charge the jury that it was usury for the Plaintiff to take even her actual expenses in collecting her own money to loan to Defendant, when those expenses brought the sum paid for the loan to more than seven percent. ; also, that it was usury for the Plaintiff to take anything more than her actual expenses as a personal compensation for collecting the money; also, that if the extra money paid was, in the mind of the Plaintiff, an inducement to make the loan, it was usury. Each of which requests was refused by the Court, and the Defendant excepted.</p> <p>The Plaintiff was permitted, under objection of Defendant, to •testify for what she was to receive the five per cent, above interest ; also, what was the state of her health at the time of the transaction, how long she had been sick, and what was her disease; also, whether the money which she raised to loan to Cornell was previously in safe hands, and what her intention was in stipulating for the sum reserved out of the face of the note.</p> <p>The jury found a verdict for the Plaintiff for the full amount of the note, with interest. A motion for a new trial was made by Defendant at Special Term, and denied. The order denying such motion was affirmed at General Term, and Defendant appeals to this Court.</p>

Action to recover an account for goods sold by Plaintiff to Defendant’s testator. Defence, payment of the account: Trial at Circuit without a jury. The following facts appeared : That the goods were sold and delivered by the Plaintiffs to the Defendant in June, 1856; that in April, 1857, the account not having been paid, it was placed by the Plaintiffs in the bauds of their attorney for collection, who wrote to the testator requesting payment.

<p> General Assignment for benefit of Creditors—Right to sell on credit. </p> <p>An assignment for the benefit of creditors is not rendered invalid by providing that the assignee shall not sell the assigned property upon credit.</p> <p>When a portion of the assigned property had previously been levied upon by attachment, the assignor may provide for giving a preference to the attaching creditor, without making void said assignment.</p>

This is an appeal from an order or judgment of the Supreme Court, made at General Term in the First District, affirming an order of the Surrogate of the city and county of New Yorb, by whi ch he refused to revoke letters of administration which had been granted ex parte to the Respondent, Mary E. Eisenlohr, upon the estate of Patrick Donnery. Mary O’Gara, the Appellant, is the niece of Patrick Donnery. Mary E. Eisenlohr, the Respondent, claims to have been his wife.

This is an appeal by the Appellant from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment rendered upon a report of a Referee in favor of the Defendants. The action was brought to recover back the sum of $9,000, alleged to have been paid to the Defendants upon an award made to the Defendant Erben for land taken in the extension of Canal Street.

Appeal by the Defendants from a judgment rendered at General Term, in the Eighth District, affirming a judgment recovered by the Plaintiff at the Special Term, on demurrer to the complaint. The action was brought to restrain the Defendants by injunction from proceeding either by action or by warrant under the statute to remove the Plaintiff from the possession of lot number six, Grand Island, in the Niagara river.

<p>Appeal from judgment of General Term, Fourth District, affirming judgment on verdict in favor of the Plaintiff.</p>

<p> Question of fact—Hkidence to sustain. </p> <p>When there is any evidence to sustain the finding of the Judge, the Court of Appeals cannot inquire into the correctness of such findings. Such inquiry belongs exclusively to the General Term.</p>

About the 29th of August, 1859, and for some four years previous thereto, Charles N. Tuttle, Job Hoses, and Sanford Green-man were copartners, as dealers in patent and other medicines, at Auburn, under the firm name of Tuttle, Hoses & Greenman.

<p> Contract—Attorney and Client—Compensation—Presumption. </p> <p>A contract by which a large compensation is to be paid to the attorney by the client, on condition of success on an appeal which he advises, is to be scrutinized by the Court, and every presumption taken against the attorney.</p> <p>In such case, if the attorney does not succeed on the appeal, he is to be deemed to be entitled to nothing.</p>

This action was brought to enforce the performance of the covenants contained in a lease made by Myndert Van Schaick to Henry Van Schaick. The Special Term gave judgment in favor of the Plaintiff, which upon appeal was affirmed by the General Term of the First District. The Defendants now appeal to this Court.

This is an appeal by the Defendants from a judgment of the Supreme Court in favor of the Plaintiff, rendered in the Third District.

<p> Policy of Insurance—Classification ofrishs. </p> <p>The terms in a policy of insurance, “ hazardous,” extra-hazardous, specially hazardous, and not hazardous, are well-understood technical terms in the business of insurance, and refer to distinct classes or degrees of hazards. Extra hazan'dous and specially hazardous are not classifications of goods under the more general term “ hazardousand are not to be confounded one with the other.</p>

This action was brought by the executor of Bichard F. Blydenburgh, deceased, to exonerate the estate of the testator from the payment of a judgment docketed in Kings County against the Defendant Johnson and the testator, on a note made by the former and endorsed by the latter as security.

This action is brought to recover the value of 18,000 shingles, and 4,000 feet of hemlock boards, joists, and scantling, and 400 lineal feet of sawed timber, framed, ready to be put into a building alleged to be the property of one Mallory, and taken and sold by the Defendant. The Defendant put in an anwer to the complaint denying each and every allegation therein contained.

This case arose upon an order to show cause why a mandamus should not issue out of the Supreme Court to compel the Defendant, who was Auditor of the Canal Department, to approve the official bond of the Relator as Superintendent of Repairs, section Ho. 1, of the Erie Canal, to which office he had been appointed by the Canal Board in April, 1868.

Letters testamentary were granted by the surrogate of the county of New York, on the 14th day of November, 1864, to the appellant, executor of the last will, etc., of Andrew J. Butler, deceased. On the 22d of August, 1865, the executor filed an inventory of the goods, chattels, and credits of the deceased.

<p>Corporations, general powers of. Corporations, in the absence of restrictions imposed by statute, have the power necessary to enable them to transact the business authorized by their charter. They may borrow money for the purposes of their business, and for the like purpose piay procure sureties whose contracts of indemnity are valid, the same as if made with individuals.</p> <p>The plaintiff as a corporation incorporated by the legislature of Connecticut had authority to take guaranty notes, for the security of policy holders; and such notes when given for such purpose are valid and binding contracts for the purposes specified. Same in case of Sope Mutual Insurance • Co. v. Taylor et al.</p>

Suit brought to obtain a judicial construction of the will of Laartus Bundy, deceased, and comes into this court-on an appeal by the defendant, Clarissa M. Bundy (now Clarissa M. Travner), from so much of the judgment entered and perfected at the General Term of the Supreme Court of the sixth district, as adjudges and determines, that the said Clarissa Bundy was and is only entitled to have her support from the legacy bequeathed to her in the last will and testament of said…

The action was brought in the month of September, 1861, to recover possession of two canal boats or their value, which, it was alleged, had been taken by the defendants.

This action is brought to recover damages for killing a cow, through negligence on the part of the defendant. The plaintiff recovered judgment for the value of the cow in the justice’s court, but on the trial upon appeal to the Rensselaer County Court, was nonsuited, and from the judgment upon such nonsuit, now appeals to this court.

This was an action by the widow and administratrix of John H. Gonzales, deceased, for damages occasioned by the negligent killing of her husband by the cars of the defendant. The casualty occurred at West Mount Vernon station, on the defendant’s road, November 15,1864. The deceased was a passenger by the accommodation train from New York city, where he did business, to West Mount Vernon, where he resided.

<p>The plaintiff, as administrator of his son Thomas, brought an. action against the defendants, to recover damages for the negligent killing of his son, on the 13th of April, 1866. At the close of the plaintiff’s evidence, the defendants moved for a nonsuit, which was denied. The plaintiff obtained a verdict for $1,500, for which judgment was entered. The defendants moved at the Special Term for a new trial, on the ground that the verdict was against evidence, that it was against the weight of evidence, and that the damages were excessive. This motion was denied. The defendants appealed to the General Term of the third district, where the judgment was affirmed. The defendants now. appeal to this court.</p> <p>When the defendants moved for a nonsuit, the evidence showed that the deceased was a lad, eleven and a half years of age, that he was killed at Drum’s crossing, Greenbush, East Albany, at' a street called Second avenue, under the following circumstances: The crossing in question is a thoroughfare where there is a great deal of crossing at all times of the day. There are two tracks at the ¡joint, which are five feet apart, and at a distance of ninety feet northerly from the north sidewalk, are switch tracks setting off from each of these tracks. At the time in question a train of empty freight cars' was being backed northerly over the east•erly track of the crossing at this point. At about the same time the engine “Jones,” which had been standing on the westerly side switch, was put in motion and passed southerly along the switch track and along the westerly track to and south of this crossing. As it passed over the southerly side of the avenue, it struck the deceased, who was immediately killed by the collision. It appeared, that the deceased had been sent by his mother, at about four o’clock in the afternoon, with a pail, upon an errand, that his father at the same time had given him money and directed him to purchase and bring home a glass of beer. The house of the plaintiff was upon the east side of the tracks, and the place to which the boy was sent was upon the west side, of the tracks. It is a fair conclusion from the evidence, that, when the lad upon his errand reached the easterly track, he encountered the empty freight train, being backed northerly; that he stood there till it passed, then crossed the same, with the intervening space, and reached the easterly side of the west track, where he was. struck and instantly killed by the engine “Jones,” which was going southerly, at the rate of ten or eleven miles an hour.</p> <p>When the plaintiff’s evidence closed, there was evidence tending to show, that no bell upbn the “Jones” was rung, and that the whistle was not blown, as it was crossing this street. The “Jones” was run by the fireman only, the engineer not being on board. It was testified, that the bell upon the “ Jones,” was rung as a signal to the switch man to let the engine out upon the main track, but there was no evidence for what length of time it was rung, or until what point on the road the ringing .continued.</p> <p>At the close of the plaintiff’s evidence, the defendants moved for a nonsuit, on the grounds, that the defendants were not guilty of negligence, and that the negligence of the deceased caused or contributed to his death. The motion was denied, and the defendants gave evidence upon the issues. The ease was then submitted to the jury, who rendered a verdict for the plaintiff. Ho questions of evidence are made in this case. There are no exceptions to the charge, and the motion for a nonsuit was not renewed at the close of the defendants’ evidence.</p>

80 Broadway, and awarding restitution of the possession to the relator, which proceedings were instituted by the appellant against the relator, under the act authorizing summary proceedings, to recover possession of land in certain cases.

The action was brought by the plaintiff to recover . damages for an injury received by being struck by a car of defendant, running on its road in Brooklyn, by which the plaintiff was knocked down, and his leg run over and injured so, as to require amputation.

This action was commenced in the Supreme Court to recover for a quantity of rye sold by the plaintiff to the defendants. The complaint alleges, that the rye was sold and delivered at the agreed price of seventy-five cents per bushel. The cause was referred to a referee, to hear and determine, and he found that there was no agreed price; that the market value was fifty cents per bushel, and gave judgment for the plaintiff, for the amount at that price.

<p>Action for divorce ; jurisdiction of the Superior Court of the . city of New Tore. Undertaking on appeal. The jurisdiction of the Superior Court of the city of New Tork, in actions for divorce, upon the ground of alleged adultery, was explicitly affirmed hy this court in Forrest v. Forrest (25 N. T. 501).</p> <p>An undertaking given to effectuate an appeal under section 334 of the Code, and which recites, that the appellant, feeling aggrieved, etc., intends to appeal, etc., is not void as showing hy the recital that the undertaking was executed before the appeal. There is no impropriety in the recital of the undertaking, that the party giving it intends to appeal. He forms the purpose to appeal, and the giving of an undertaking being an essential constituent to the completion of his purpose, it is not only truthful, but appropriate, to recite the fact in the instrument which is to effect that purpose. The two things are essential parts of one transaction, and are not only to be construed but to be taken together as necessary complements to a thing perfected by their joint agency.</p> <p>A voluntary bond, not given under legal compulsion, but to procure a private benefit, is to be construed more liberally than one given to a public officer, where the rule of strict conformity is held with considerable stringency. Bacon, J.</p> <p>An objection not taken upon the trial should not be listened to here.</p>