Volume 39 — Howard's Practice Reports

The plaintiff recovered judgment in justices court for $133.00, and on a new trial in the county court the judgment was reduced to $92.00. The defendant, by his attorney, brought an appeal, and in his notice of appeal claimed that the judgment should have been more favorable to him, in that it should have been for only $40.00.

Motion to set aside injunction restraining defendant Thompson, and others, preferred stockholders of the Erie Railway Company, from the further prosecution of actions against said company, to secure an accounting for the net earnings for L868, and for payment of a dividend out of such net earnings on the preferred stock of said company.

On the 6th of May, 179.4, a lease in fee was executed by Stephen Van Rensselaer (deceased) to Sylvanus Cooper, for 261 acres of land, in Rensselaerville, Albany County, known as lot No. 241, on which was reserved ari annual rent; and on the 15th day of January, 1808, the said Van Rensselaer, leased to Hézekiah Watson and .Job Sisson, 220 acres of land in the same town, known as lot No. 261, with a like reservation. of rent.

The action was commenced June 17th, 1S68, by short attachment proceedings against defendant as a non-resident, under 33d section of act to abolish imprisonment for debt. The defendant appeared on return of attachment, and objected to further proceedings on the ground that the affidavit, on which it was issued, was insufficient. Objection overruled, A short summons was issued returnable June 22d, 1868, when parties appeared and joined issue.

Appeal by plaintiffs from an oilier, made at the Delaware special term of this court, in February, 1869, denying plaintiffs’ motion to strike out the answer of the defendant in the action, “as false, sham and irrelevant,” with $10 costs.

This was an action on contract. It was brought, and first tried in justices court. The recovery there, was for $80 damages, and $5.75 costs. The defendant appealed to the county court, and it was tried therein, and verdict lor plaintiff, and exceptions were taken. The county court ordered the exceptions to be heard in the first instance at the general term of the supreme court.

This action was brought to obtain a judicial construction of the will of Washington Murray. The will is dated May 15, 1866.

<p>Under tie existing laws of congress, the enlistments of minors into the military service of the United States, over the age of eighteen years, without the consentof their parents or guardians or masters, are valid, and the oath of enlistment taken by the recruit is conclusive as to his age. But it is not lawful to muster into service a person under the age of eighteen years.</p> <p>The provisions substantially, for the discharge of minors are as follows: 1. A _ minor who is under the age of eighteen years at the time he applies for his discharge to the secretary of war, is to be discharged by that officer, when it appears upon due proof that such minor is in the service without the consent either expressed or implied, of his parent or guardian, provided all bounties or advance pay, which may have been paid to him are first repaid.</p> <p>2. A person who was under the age of sixteen years when he was enlisted or mustered into service, is to be discharged by the secretary of war, whether he was enlisted or mustered with or without the consent of his parent or guardian, provided all bounties received by him are first repaid, and provided he is under the age of eighteen years at the time he applies for his discharge, and is in the service without the consent, either expressed or implied of his parent or guardian.</p> <p>The whole power of discharge is given to the secretary of war in regard to minors, whatever their ages, when they enlisted or when they apply for discharge, and such power is necessarily taken from the court.s</p> <p>As to the cases provided for by the acts of 1864, and so far as the jurisdiction of the secretary of war extends under those acts, the provision of the second section of the act of February, 1862, that the oath of enlistment taken by the recruit shall be conclusive as to his age, is necesaarly suspended, and the secretary of war is authorized and required to receive other due proof as to the age of the recruit both at the time of Ms enlistment and at the time he applies for his discharge.</p>

This cause was decided by'the court of appeals, September term, 1865, (33 N. Y. E., 610,) and judgment reversed, and a new trial ordered, with costs to abide the event. By consent, the new trial was had, before' Judge Mullin, as referee.

The firm of «Morse & Co., (composed of Anthony W. Morse and J. Cady Brown,) employed Charles E. Anderson, an exchange and general commission broker, to procure for them a loan on certain securities, and furnished him with the securities for that purpose ; under this authority, Anderson procured a loan from defendants, for said Morse & Co., and pledged to defendants as security for such loan, the securities with which Morse & Co., had furnished him.

<p>A witness called as an expert, passed his direct examination, showing that the debtor had falsified some of his books of account, &c: On his cross-examination he refused co answer questions irrelevant to the matter at issne, claiming the protection of the register, and pleading that a truthful answer would bring upon him moral turpitude, or would tend to degrade and humiliate him. The witness is a foreigner, and the questions asked referred to a time previous to his residence in the United States:</p> <p>BLeld, That as the question put to the witness did not relate to any matter of fact in issue, or to any matter contained in his direct testimony, and as a truthful answer to it would tend to degrade him, he was not bound to answer it.</p>

This was an action of ejectment brought to recover one •hundred and eight acres of land, situate in the Hardenburgh Patent, in Halcott, Greene countj.

Motion to set aside an execution against the body of the defendant, issued April 23, 1870, on a judgment recovered March 8, 1870, for penalties under the excise laws, an execution against property having first been issued and returned unsatisfied.

1868, February 13th, action commenced by service of summons only. 1868, February 14tl), complaint filed, with notice of lis ■pendens. 1868, February 14th, Raynor & Vann appeared for defendants. 1868, Februaiy 29th, twenty days additional'time given to serve a copy of the complaint. 1868, March 12th, copy of complaint served on defendants’ attorneys. 1868, March 28th, defendant William Gr.

Action brought to foreclose a mortgage executed in 1860. A decree of foreclosure was made in January, 1870, directing a sale of the premises by the sheriff of W^tyne county, and the payment to the plaintiff, from the avjails, of $3,555 92, and .costs. s Pending the notice of sale on such decree, the plaititiff made a motion to amend the decree by directing payment to the plaintiff in gold or its equivalent. The second mortgagee opposed the motion.

In the case of Wray, the special term of the supreme court (Clerks, J.) rendered judgment for the defendant, but the general term on appeal reversed it, and granted a new trial. From such order granting a new trial, the defendant appealed to this court and gave the stipulation under subdivision 2 of $ 11 of the Code.

This is an appeal from an order made at special term, in Jefferson county, by Mr. Justice Mullin, denying a motion to set aside an order of arrest in this action.

An action to declare inoperative and void an assignment of a mortgage, and to collect the amount of moneys received thereon by the defendant’s testator, an assignee of said mortgage. The facts of the case were not disputed by either party on the trial. The following is a brief summary of them.

The relator was a candidate for supervisor at the last election. Walter Roche received the highest number of votes and was elected. Henry Smith received the next highest number of votes. John Foley, the relator, received the next highest number of votes.

Appeal by the defendant from an order of the special term allowing an execution to issue upon the judgment entered therein. The facts sufficiently appear in the opinion of the court.

This is a motion founded on the petition of John S. Beecher, as assignee in bankruptcy of the parties to this action.

Motion by defendant in the three above-entitled causes for an order permitting the assessors of the city of Elmira to amend their affidavit indorsed on the assessment roll of property in the city of Elmira, for the year 1868, by supplying the omissions or defects therein by an amended or supplemental affidavit so as to conform to the requirements of the law, or that a new and supplemental affidavit be made by them and indorsed on said roll, in compliance with and as required…

<p>The seizure of a debtor’s property before the creditor has secured the establishment? of his rights by a judgment, is a harsh proceeding. And to warrant an attachment for that purpose, a plain case should be made out; especially as the ex parte affidavit of the plaintiff is sufficient to support it. And if the affidavit fails to do that the attachment should be denied.</p> <p>It is the duty of courts of justice, if the provisions of the law are to be respected and maintained, to resist the seemingly growing disposition to make applications for attachments, as well as for other provisional remedies, upon very imperfect proofs.</p> <p>The Code requires that the affidavit for an attachment shall not only specify the amount of the claim, but also the grounds thereof. It is only when this is done that the officer applied to is authorized to issue the attachment.</p> <p>The affidavit in this case, stated that the debt upon which the application for an attachment was founded; was for money paid out and advanced by the plaintiff within the preceding five years, amounting to the sum of twenty thousand dollars for the use and benefit of the defendants:</p> <p>Held, that this statement was not sufficient to constitute a right of action again st the defendants, without the statement of the further fact that it was done at the defendants’ request. The statement that the amount mentioned was due and unpaid to the plaintiff from the defendants does not help the case; for that is the conclusion of the plaintiff only, from the facts previously set forth, and not the-statement of any additional fact or circumstance.</p> <p>It can only appear from the affidavit that a cause of action exists, when the facts and circumstances out of which it arose, are so far set forth as legally to warrant- and sustain that conclusion.</p> <p>The statement contained in the affidavit in support of the plaintiff’s conclusion that the defendants were about to assign or dispose of their property, with.intent to-defraud their creditors, held,, to be, like the other portion of the affidavit, exceedingly loose and unsatisfactory.</p> <p>It was that one of the defendants lately informed the plaintiff, 1 that lie-intended to leave this state and go to the state of Georgia; that he should dispose of the property of the said partnership if he could find any one to take it; and any creditor who did not know enough to take care of himself, must get xvhat he could Held, that in order to authenticate this statement as the ground for an attachment it should have been stated with more particularity, the name of the defendant making the statement, and the time and place when it was made, should have heed stated. The order of the special term setting aside the. attachment affirmed.</p>

This action was brought in the superior court of the city of New York, to recover damages sustained by the death of John H. Gonzales, who was killed on the defendant’s railroad, immediately after leaving the car on which he was a passenger. The only material issues were whether there was negligence on the part of the defendant or its servants which caused the death, and if so, whether there was also negligence of the deceased which contributed to it.

This action was brought against the defendants as co-partners to recover for money lent and advanced to them by the plaintiff. Upon an affidavit that the money was obtained through false representations, made by the defendants, an order of arrest was granted.

This was an action of ejectment brought to recover possession of land at.Clason Point, Westchester County. The facts sufficiently appear in the opinion of the court.

This is an appeal by the prisoners on separate applications, through writ of habeas corpus to this court, asking to be discharged from imprisonment. I will consider both cases together. The prisoners were arrested on the night of the 23d of January, 1870, at midnight. On the 29th of same month, they were sent before the special sessions of this city; were tried and convicted of assault and battery, and were each sent to prison for six months.

Appeal by defendants from an order made at special term, on the 11th of April, 1870, referring the action and all the issues therein, to a referee to hear and determine the same.

In September, 1864, the ¿ppellant desired to procure three substitutes tor his three sons, who were subject to draft, (then imminent,) and at Utica applied to respondent for the same. A verbal agreement was made that respondent vas to furnish and enlist three men, as substitutes for said-three sons, for which respondent should have $1,500 each, viz. : §4,500; and appellant was to have the town and county bonds paid as bounties.

<p>Action for false imprisonment. The facts will sufficiently appear in the opinion of the court.</p>

In December, 3 868, the plaintiff, a married woman possessing a separate estate, gave an accommodation mortgage on her house and lot for $75, to her son Samuel, who promised to give her a chattel mortgage as security for the same. Samuel sold the accommodation mortgage to oné Gillett, and the plaintiff afterwards paid it.

The plaintiff's were dry goods dealers in Broadway, city of New York. The defendant’s wife, Julia, on the 24th March, 1865, called at their store and purchased a bill of goods, consisting of materials for her clothing. At the time of the purchase she represented that the defendant, her husband, had authorized her to call on the plaintiffs and to get the goods in question.

<p>A wrongful detention of personal property, is itself, a conversion of it, which authorizes an attachment to issue under the Code “for the wrongful conversion of property,” But in no other action of tort can an attachment issite.</p> <p>Partnership credits can in no case be taken by garnishment, to pay the individual debt of one member of the firm.</p> <p>The balances and credits due the defendants as partnership brokers in the hands of other brokers, cannot be attached by a creditor of the defendants. It is only tangible property, such as can be reached and sold on execution which is subject to attachment.</p> <p>Where the plaintiff sued the defendants—a firm of brokers, residing in Baltimore, Md., where the plaintiff also resided, for the conversion of personal property of the plaintiff and claimed damages arising out of the sale by the defendants of certain stock, and issued and served an attachment upon a firm of brokers in the city of New York, claiming a lien by virtue thereof on stocks, bonds, accounts, balances, margins on deposits, &c., due the defendants:</p> <p>PLeld, that in addition to the foregoing reasons, the attachment must be set aside and discharged, on the ground that the margins and securities held by the New York brokers belong to the customers of the Baltimore firm, of which fact the New York brokers had notice, and this rendered an accounting between all the parties interested necessary in order to arrive at the possible surplus;- which surplus could not be attached here in an action against the defendants.</p> <p>Besides* the technical conversion occured in Maryland, and our courts, as a general rule, ought not to take cognizance of actions to recover damages for torts committed in a sister state.</p>