Volume 4 — Abbott's New York Practice Reports

<p>Partition suit, tried by the court.</p>

<p>Motion for a temporary injunction.</p> <p>This action was "brought to obtain a permanent injunction restraining the defendants, who were the commissioners of Police for the Metropolitan Police district, from placing police upon the sidewalks in front of the auction store kept by the plaintiff, for the purpose of warning persons from entering therein.</p> <p>The plaintiff now moved for an injunction pending the suit.</p> <p>The defendants took a preliminary objection to the jurisdiction of the court, founded upon section 9 of the “Act relating to the Metropolitan Board of Health, and to the duties and powers of the commissioners of said board, and the salaries of them subordinates,” passed in 1867 (2 Laws of 1867, 2410, ch. 956), which section is as follows: “Ho preliminary injunction shall be granted against the Metropolitan Board of Health, or of Police, or its or their officers, or against the commissioners of said board, in their capacity as a board of excise, or against the last-named board, except by the supreme court, at a special or general term thereof, after service of at least eight days’ notice of a motion for such injunction, together with copies of the papers on which the motion for such injunction is to be made.”</p>

Motion to dissolve an injunction. The action was brought by Philip Caswell and others, to restrain defendant from infringing the plaintiffs’ trademark. Á preliminary injunction was granted, which defendant now moved to disssolve.

Demurrer to a complaint. This action was brought by James McGee, against Terence Roen, John Darragh, John Doyle, and George McDonald. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Application to enforce payment of a tax upon personal property. This case came before the court upon a petition filed by Bernard Smyth, receiver of taxes for the city and county of New York, under the act of 1843, to compe], the defendants to pay a tax which' had been imposed upon them, as a foreign corporation doing business within this State.

Motion to set aside an inquest and subsequent proceedings for irregularity. This action was brought by William Burger and his wife, against George Baker, to recover lands claimed as the separate property of the female plaintiff. An inquest was taken, which defendant now sought to set aside.

<p>Right to Discontinue.—Counter-Claim.</p> <p>The fact that defendant has answered, setting up a counter-claim, does not preclude the plaintiff from discontinuing before reply or demurrer, or expiration of the time to reply.</p>

This action was brought by Francis J. Sunney against William Roach, George Barstow, Oharles F. Watts, and William Hitchman. The defendant Roach sued the plaintiffs and others, in the Marine Court of the city of Hew-York, and recovered judgment before a single justice of said court for $426^, from which judgment the plaintiff and his co-defendants in said action appealed to the general term of this court, giving the security prescribed by the Code.

<p>Appeal from a judgment of a justice of a District Court.</p>

<p>Appeal from a judgment of a justice of a District Court of the city of New-York.</p>

<p>Whether a justice of a District Court may open a judgment rendered by him through inadvertence—Query ?</p> <p>If the party against whom it was rendered consents that it be opened, and the cause tried, a subsequent judgment rendered against such party will be regular-.</p>

<p>Assignment for Benefit of Creditors.—When Set Aside.</p> <p>An action will not lie to set aside an assignment of property in trust for creditors, which is good upon its face, upon the ground that it was made with intent to defraud creditors, upon mere proof that the assignor, fraudulently (no collusion on the part of the assignee -being shown), concealed and withheld from the assignee,' assets which ought to have been delivered under the assignment.</p> <p>The remedy for such acts by an assignor is to be sought in proceedings by the assignee to compel'the delivery of the assets withheld.</p>

<p>Appeal from a judgment.</p>

Julius M. Achley, claiming to have been appointed, by the Common Council of the city of New-York, a commissioner of deeds, applied to the clerk of the city and county of NewYork, to be sworn in. The clerk refused the application, on the ground that no valid appointment had been made, the resolution of the Common Council having been vetoed by the Mayor. A mandamus was now applied for, to compel the clerk to administer the oath.

This action was brought'by the plaintiff, as assignee of Joel Parker, to recover a legacy of $500, together with one fifty-fourth part of the residuary estate, bequeathed to Parker under the will of the late Isaac M. Wooley, of the city of New York, and amounting to $1,248. Joel Parker, the legatee and devisee, was one of the witnesses to the will, and at the time of the death of the testator, and ever since, was a resident of the State of New Jersey.

Motion to vacate an order for discovery. This action was brought by Ahoyke, a Chinaman, against two defendants—Wolcott and Westray. The plaintiff having obtained an order under the Revised Statutes requiring defendants to produce certain letters; the defendants now moved, upon affidavit by each of them denying that the papers called for were in the possession or under the control of either of them, to vacate the order.

Motion to set aside the service of summons and complaint. This action was brought by several plaintiffs against two defendants, Lord and Dougherty, sued as joint debtors. The defendant Lord resided in Hew-York city, and was there served with summons and complaint. The defendant Dougherty resided in Brooklyn, and was served in that city.

Motion to vacate an order of arrest, ipany Grelet, This action was brought by The Mor of France against Charles Carpentier, I Auguste Parot, Felicité Dubud, and one Guerin. The complaint set out two distinct causes of action.

Trial by the court. This was an action to obtain an injunction restraining the defendant from editing, issuing or printing a newspaper called the “ El Cronista.” It was tried before the court without a jury; the facts on which the injunction prayed was claimed, being as follows : About fourteen years previous to the commencement of the action a newspaper in the Spanish language was established in the city of New York, under the name of “La Cronica,” by one Manuel de Pena;…

Motion to amend an order reversing a judgment. This was an action of ejectment brought to recover possession of a vault under the sidewalk of Mercer-street. On the first trial, the plaintiff had a verdict, on which judgment was entered and execution issued, and the plaintiff was put in possession of the vault. The general term, on appeal, reversed the judgment, and ordered a new trial.

Order to show cause why this action, pending in the Superior Court, should not be removed into the Supreme Court, and the place of trial thereof changed to Kings county. This action was brought in the New-York Superior Court, by Andrew D. Campbell against William II. Butler. The summons and complaint were served upon the defendant in the city of New-York.

Motion to dissolve a preliminary injunction. This was an injunction suit brought by Patrick McCafferty against Hugh McCabe and the Mayor, &c., of the city of New-York. The facts were, that the corporation had determined that Forty-eighth street in the city of New-York should be paved; and in pursuance with the charter and the ordinance upon that subject, they had entered into a contract with the defendant, McCabe, to do the work in a specified manner.

This action was commenced by Jesse Hoyt against Abraham G. Thompson, The Long Island Bailroad Company, and others, in the month of December, 1847. It was brought to recover a debt originally contracted by The Long Island Bailroad Company in favor of the Morris Canal and Banking Company.

Trial by the court. ' This action was brought to obtain an injunction restraining the prosecution of summary proceedings by a landlord against a tenant. The proceedings against which the injunction was sought were instituted before .the city judge, by the defendants in the present action, Mayer Baum, and another, claiming to be landlords of the premises in question, No. 30 Oliver-street, in the City of New York, against one Levi Aaron as tenant.

<p>Receiver.—Commissions.—Disbursements.</p> <p>By the fair construction of 2 Revised Statutes, 93, § 58,—allowing commissions to executors, &c., for “receiving and paying out” moneys,—one-half of the specified rates are to be allowed for receiving, and one-half for paying out.</p> <p>A receiver is entitled to commissions at the rates prescribed by 2 Revised Statutes, 93, § 68 ; and he is also entitled to be repaid actual disbursements, prudently made or incurred, in the case of the trust property.</p>

Motion to set aside service of summons and all subsequent proceedings. This motion was heard in the first instance at general term, under an order to that effect, made at special term by Mr. Justice Smith. The facts upon which the motion was based, appear in the opinion of the court.

Trial by the court. This was an action upon a bill of exchange drawn “ payable in United States gold coin,” and accepted by the defendant.

<p>Order.—Judgment.—Appeal.</p> <p>The decision of the special term, sustaining a demurrer to a complaint and ordering judgment for defendant unless the plaintiff shall amend within a specified time, is not a judgment, but an order ; and is properly appealed from as such.*</p>

<p>SUPPLEMENTAEY PeOCEEDINGS.-CONTEMPT.-PoWEES OF CoUET.</p> <p>The court has the inherent power, in a general sense, of punishing as for contempt, disobedience to orders made by judges out of court.</p> <p>The provision of section 302 of the Code, bestowing upon the judge, before whom supplementary proceedings are commenced, the power to punish disobedience to his order made therein, does not limit or abridge the general power of the court to punish disobedience to the order of one of the judges of the court.</p> <p>An order for the examination of a defendant upon supplementary proceedings, was made by one of the judges of the court, and afterwards, the same judge, sitting at special term, made an order entitled at special term, punishing defendant for a contempt in disobeying the first order.</p> <p>Held, 1. That the second order was valid as the order of the court.</p> <p>2. That it might also be sustained as the order of the judge before whom the proceedings were commenced. The mere fact that it was made while he was holding special term, and was entitled as made at special term, did not render it irregular, if it were an order which he had power to make out of court.</p>

This action was brought by Israel Wilkinson against William Tiffany, upon an award and an account, for the recovery of money only. The plaintiff claimed a judgment in his summons and complaint for $600.

<p>Execution against the Pebson.—How Issuable.</p> <p>When the facts constituting the right to arrest the defendant are necessarily apparent upon tile record, leave of the court to issue an execution against the person is not necessary.</p> <p>But, where—as in ease of an action for moneys received in a fiduciary capacity—■ the breach of trust rendering the defendant liable to arrest is extraneous to the cause of action, leave must be obtained.</p>

<p>Motion to discharge defendant from arrest.</p> <p>This action was by Emma Geller against Benj. M. Seixas.</p>

<p>Suit by Assignee.—Defect of Parties.—Rights of Pledgor and Pledgee.</p> <p>An assignee of a demand in trust to pay certain creditors of the assignor and the balance to the assignor himself, may bring an action in his own name, without joining the cestui que trusts as plaintiffs.</p> <p>An objection to a complaint for defect of parties can only be taken by demurrer or answer.</p> <p>An agreement whereby the maker of notes delivers certificates of stock as collateral security for the payment of the notes, stipulating that if the notes are not paid at maturity the securities shall be under the control of the holder, who is authorized to dispose of them, and to apply the proceeds to the credit of the maker,—is a pledge of the stocks and not a mortgage.</p> <p>A pledgee can sell the pledge on default of payment, only upon demand, of payment and notice of sale ; and the notice must state the time and place of sale.</p> <p>A special partner of a firm with whom property is pledged, is not incapacitated by his relations with the firm from purchasing the pledge at a sale made by them.</p> <p>Where a pledgee has sold the pledge without right to do so, a tender of the debt is not necessary to enable the pledgte’to recover the value of the pledge.</p>

<p>Suits ag-ainst Corporations.—Partir</p> <p>An action cannot be maintained against a corporation by one of its stockholders, to compel it to declare and pay a dividend, from funds on hand.</p> <p>A corporation stands in no fiduciary relation to its stockholders. The directors, not the corporate body, are the trustees, and should be parties to any action for the enforcement of the trust.</p>

This action was brought by George W. Gray against Alexander F. Croquet, to recover possession of a house and lot of land in Brooklyn. The complaint alleged that one Mary Olney was formerly seized and possessed of the premises in question. That, being so seized as aforesaid, the said Mary Olney, with her husband (George Olney), on or about March 1, 1859, conveyed the premises to one Mary Barlow.

Motion to set aside an amended complaint. This action was in the nature of a qui tam action, and was brought by Ira Longworthy against Gideon Lee Knapp, to recover a statute penalty under section 49 of the act of 1813, relative to the city of New-York (Laws of 1813, 359).

<p>Motion for a stay of proceedings upon a reference directed to apportion the debts of an insolvent bank among its stockholders.</p> <p>The Empire City Bank failed in December, 1854, and on the application of its creditors, the United States Trust Company was appointed receiver, and afterwards made a dividend among the creditors; whereupon, pursuant to the act of 1849 (Laws of 1849, ch. 266), the whole matter was referred to Stephen Cambreling, to apportion the debts among the stockholders. The order making this reference was granted by the Supreme Court, on August 14,1855.</p> <p>On October 20, 1855, an order was granted by the Supreme Court suspending such apportionment six months. On April 28, 1856, it was again suspended for six months, and on December 16, 1856, it was further suspended for ninety days, and no apportionment had as yet been made.</p> <p>Upon these facts a motion was now made for a perpetual stay of proceedings, restraining the receiver and referee from any further proceedings in such apportionment.</p>

This was an injunction suit brought by W. Lewis, E. T. Back-house, and others, against Joseph Oliver and the Common Council of the city of Brooklyn. The facts on which the suit was based, are stated in the opinion of the court. On the complaint, a temporary injunction was granted, which plaintiffs now sought to ha,ve made perpetual.

<p>Costs.—Liability of Receiver.</p> <p>In an action prosecuted by a receiver to collect money to increase the fund in his hands, if the defendant prevails he is entitled to costs out of the fund, immediately. He is not required to accept a payment pro rata with the general creditors of the estate.</p> <p>An order denying a motion that a receiver pay costs to which a party defending an action prosecuted by such receiver has become entitled, is not discretionary in such sense that it cannot be reviewed in the court of appeals.</p>

Demurrer to complaint. This action was brought in the name of the Mayor, Aldermen, and Commonalty of the city of New-York, against Michael Doody, a constable of the city, and one Draddy, his surety. The grounds of the demurrer are stated in the opinion.

The plaintiffs in this action previously brought an action against Peter R. Mumford, one of the present defendants, in which they obtained an attachment. The sheriff attempted to levy this attachment upon money upon deposit in the Nassau Bank, in New York city, supposed to belong to Mumford.

<p>Fire Companies.—Actions by and against.</p> <p>The acts of 1849 and 1861, allowing joint-stock companies, <Src., to sue and be sued in the name of their presidents or treasurers, do not embrace the fire companies of the city of New-York.</p>

Demurrer to an answer. The plaintiff sued as assignee of the claim prosecuted. The defendant, in his answer, set up an unsettled demand existing prior ¡to the assignment, in his favor, against the plaintiff’s assignor. This -demand was pleaded in the form of a counterclaim. The plaintiff demurred to the answer.

<p>Execution.—Leave to Issue.</p> <p>When leave to issue execution may be granted after expiration of twenty years.</p>

<p>Appeal from Marine Court.—Notice.—Service and Amendment.</p> <p>It is not necessary that notice of appeal to the Common Pleas from a judgment ' of the general term of the Marine Court should be served on each of the justices ; but service on the clerk is sufficient.</p> <p>The notice of appeal in such ease must state the grounds of appeal.</p> <p>But an amendment may be allowed where the notice is deficient in this respect.</p>

<p>Motion to dismiss an appeal.</p>

<p>Limitation of Actions.—Rejection of Claim by Personal Representatives.</p> <p>The provision of the Revised Statutes barring “ any action” upon a claim against the estate of a deceased person, which is not sued within six mouths after its rejection by the executor or administrator, applies to and prohibits proceedings before the surrogate to collect the claim, as well as to actions in courts of law, strictly so called.</p> <p>The rejection of a claim by the executor or administrator, must be express and final, to entitle him to the protection of the statute.</p>

This action was tried in October, 1864. On the 25th of that month, the justice who tried the cause made an order returnable before himself, November 2nd, for a motion for a new trial on his minutes. On the return of the order, the plaintiff objected to the motion, on the grounds : 1. That the stenographer’s minutes were not the judge’s minutes; and 2. That there was not an order of the general term extending the trial term to November 2.

This action was brought by William. Patten and others, creditors of the Accessory Transit Company, against the Accessory Transit Company, Cornelius' Vanderbilt, Messrs. Morgan and Hoyt, and others, and John Orser, sheriff of the city and county of New-York.

<p>Action fob Use and Occupation.—Complaint.</p> <p>What averments in a complaint are sufficient to show a cause of action for use and occupation.</p> <p>It is a sound principle that the action for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists.</p> <p>But a contract, in order to sustain the action need not be express; it may be implied from circumstances,—e. g., from the facts that the plaintiff notified the defendant he would charge defendant a certain rent for the premises, and the defendant, under such notice, entered upon, and used them.</p> <p>Possession of leased premises, the property of the plaintiff, in an action for use and occupation, is sufficient evidence of an assignment of them -by the original lessee to the defendant, to enable the owner to recover against the defendant directly.</p>

Motion to dissolve an injunction. This was an action for an injunction to restrain the defendants from using a trade-mark claimed by plaintiff.

<p>Answer—Sufficiency of Defenses to Note.</p> <p>An answer to a complaint on a promissory note, which sets up as a defense that the note was made as a memorandum note, and was not to be negotiated, is frivolous.</p> <p>A denial, in an answer to a complaint upon a promissory note, that the plaintiff is a bona fide holder of the note, or that he received the same in course of business, or that he advanced any new consideration therefor, is insufficient.</p>

Motion to substitute another defendant. This action was brought by George Johnston against William R. Lewis, upon a promissory note made and indorsed by defendant. The defendant now moved for an order substituting Daniel Glacken as defendant.

Motion to dismiss an appeal. This cause came before the general term upon an appeal by defendant from an order made at- chambers, February, 1868, settling issues for trial by jury. The proceedings upon making that order are reported 3 Ante, 467, where the nature of the action, and general facts involved, are stated.

Motion to dissolve a preliminary injunction. This action grew out of the same state of facts which gave rise to the case of Fetridge a. Wells (Ante, 144). The two cases should be read together. The present case, like that preceding, came up on a motion by defendants to dissolve a preliminary injunction granted by Mr. Justice Hoffman.

Demurrer to an answer. This action was brought to recover upon an award of arbitrators.

<p>Records of other States.—Personal notice of Suit.</p> <p>The provisions of the Constitution of the United States, and of the Act of Congress of May 26, 1190, require that the same faith and credit shall he given to a judicial record, in all the States of the Union, as by law or usage such record possesses in the State where the judgment was rendered.</p> <p>To entitle the judgment of a court of a sister State to full faith and credit in this State, the court in which it was rendered must have had jurisdiction of the person, and of the subject-matter.</p> <p>No one can be personally bound by judicial proceedings without express or constructive notice.</p> <p>It is competent for a party against whom a judgment of another State is produced, to show that he had no notice, actual or constructive, of the suit in which such judgment was rendered.</p> <p>Recitals in the record of a judgment rendered in another State are not conclusive to show service of notice of the suit upon defendant.</p> <p>The record is, however, presumptive evidence of jurisdiction; and the party seeking to rebut the judgment offered against him by showing want of notice of the suit, must disprove every mode of lawful service of process; and must show clearly and explicitly, that there was no lawful service.</p> <p>Letters of administration having been granted to the widow of an intestate, a former wife filed a petition for a revocation of the letters, as being herself the lawful wife of the intestate at his decease. A decree of divorce rendered in chancery in New-Jersey, between herself and the intestate, in 1850, was produced to defeat her claims.</p> <p>Held, that in order to rebut the decree on the ground that it was not binding on the petitioner for want of notice to her of the proceedings, she must show affirmatively both that no process was personally served, and that none was served by copy; as allowed by the laws of New-Jersey at that time.</p>

The general facts out of which the controversy in this action arose, are fully stated in the report of the decision appealed from (3 Ante, 318). The case now came before the general term on an appeal by the plaintiff from the order dissolving his temporary injunction.

<p>Appeal from a judgment against defendants.</p>

<p>Joinder of Causes of Action.—Separate Statement, how ENFORCED.</p> <p>A claim for damages for a violation of an agreement to furnish paper for the printing of a work, and to print and bind the work, may be joined in the same complaint with a claim for damages for injuries received by the stereotype plates of the same work, while in defendant’s possession for use in such printing; on the ground that the two causes of action arose out of the same transaction.</p> <p>A demurrer does not lie to a complaint for the defect of not separately stating two or more causes of action; they being such as might be united in one complaint, if properly drawn.</p> <p>Belief in such case must be sought by motion.</p>

<p>Agreement to Insure.—Prayer eok Judgment.—Mode of Trial.</p> <p>Where there is an agreement to insure and to deliver a policy, and a loss occurs before the delivery of a policy, it is not necessary that the assured should proceed to compel the delivery of a policy before he can recover the insurance, but he may maintain an action upon the agreement and the loss, taking judgment for payment of the amount due only.</p> <p>Such an action being for the recovery of money only, is one which the Code requires to be tried by ajury.</p>

This action was brought by Henry A. Cram against Hezekiah Bradford, Horatio Allen, George T. Allen, Thomas 0. Cutler, and others.

<p>Appeal. — Order allowing Costs.</p> <p>An order of the general term, affirming an order of the special term allowing and adjusting costs, is not appealable to the court of appeals.</p> <p>It seems, that the provisions of Latos of 1859, oh. 2G2, § 2,—that no costs, &c., shall be recovered against a municipal corporation unless the claim was presented for payment to the chief fiscal officer of the corporation, before the suit,—does not apply to actions for unliquidated damages arising ex delicto;—e. g., to a claim for damages for property destroyed by a mob.</p>

Motion to require the sheriff of the city and county of New York to give a deed of premises sold by him on an execution issued in proceedings to foreclose a mechanic’s lien.

The complaint in this action, which was by Francis Y. Williams against James E. Shaw, alleged the sale and delivery to the defendant, at various times during the year 1850, of building materials and foundation stone of the value $1,492.41; and that during the year 1850, and subsequent thereto, defendant made various payments for and on account of said stone, &c.; and that after deducting such payments, there was still a balance due to the plaintiff, for which he claimed…

This action was brought by certain judgment-creditors of the former firm of Addison Brothers, composed of Joseph and Samuel D. Addison, to set aside certain transfers of property made by Samuel D. Addison, as surviving partner of that firm. The complaint alleged the recovery of two judgments against Samuel D. Addison, as survivor of Addison Brothers, in June and July, 1861, upon an indebtedness accruing prior to July, 1860.

On the division of the estate of one George Lorillard, certain lots on Broadway and West-street, in the city of New York, were placed in charge of Nicholas Dean, as receiver of the then Court of Chancery, to let the same, and receive the rents and pay expenses ; and out of the balance to pay certain annuities, charged by the will of Lorillard upon his real property. One of these lots, No. 212 Broadway, was leased, by the receiver, to one Hudson.

<p>Trial.—Noting Exceptions.</p> <p>On the trial of a cause, the defendant objected to the competency of a witness offered by plaintiff, and the objection was considered and overruled, but no exception, if any was taken, was noted in the judge’s minutes.</p> <p>JBeld, on settlement of a case made by defendant on appeal—1. That it was not necessary in order to entitle him to review the ruling of the court, that he should procure the exception to be formally noted in the minutes.</p> <p>2. That the affirmative testimony of witnesses that an exception was actually taken, would outweigh the negative testimony of an equal number who testified that they were present at the trial, and that no exception was taken.</p>

Motion to correct the report of a referee. This was an action by the town of Guilford against Daniel Cornell, Ransom Clark, and the Board of Supervisors of Chenango County. The Board of Supervisors of the County of Chenango were proceeding to levy and collect a tax of upwards of two thousand dollars, of the taxable inhabitants of the town of Guilford, for the benefit of the defendants Cornell and Clark, to whom the money was to be paid when collected.

This was an action for money lost to plaintiffs by reason of 'certain false and fraudulent representations made by defendant of the solvency, &c., of a party, by which plaintiffs were induced to give him credit, whereby they sustained damage to the amount of such credit. There was a general demurrer to the complaint.

Motion to discharge defendant from arrest. The arrest of the defendant in this case was made pursuant to the act to abolish imprisonment for debt and to punish fraudulent debtors, passed April 26,1831; and the warrant was allowed upon the ground that the defendant was about to remove his property out of the jurisdiction of the court, with intent to defraud his creditors; and also, that he was about to dispose of his property with like intent.

Motion to set aside a warrant of attachment. , This action was brought by several plaintiffs, and a warrant of attachment was granted on the affidavit of one of them. The defendant now moved to set aside that warrant for insufficiency in the affidavit on which it was founded. The point in which the affidavit was considered insufficient was this; that at one passage it proceeded thus—■“ the plaintiffs aver ” certain facts.'

Motion to vacate a judgment for irregularity. The complaint in this action was entirely upon information and belief. In the affidavit of verification, which was made by one of the plaintiffs, the affiant stated that “ he believes it to be true; all the allegations therein being made on information and belief:” The defendant served an answer in due time, but it was unverified; and plaintiff’s attorney accordingly returned it, and entered judgment as upon failure to answer.

<p>Petition for the discovery of papers.</p>

<p>Appointment of Receives.—Insolvent Corporation.—Rights of Mobtgagee.</p> <p>To appoint a receiver of chattel property held by a mortgagee in possession, except in case of necessity to secure the rights of other parties, is to impair the obligations of the contract between such mortgagee and the mortgagor, and so is beyond the constitutional powers both of the court and of the legislature.</p> <p>The appointment of a receiver involves, in effect, an injunction; and is, therefore, to be directed with great caution, and only in cases of pressing and apparent necessity.</p>

This action was brought in October, 1867, to foreclose a mortgage for $800, falling due March 9, 1869.

<p>Costs.—Marine Court.—Demurrer to Answer.—Allowance.</p> <p>The provision of the act of 1853 (Laws, 1165, ch. 617, § 1) limiting costs in certain actions when prosecuted in any other court in New York city than the Marine Court, does not apply to an action commenced in the Supreme Court in another county, but which, the place of trial being changed to the city and county of New York, is afterwards prosecuted there.</p> <p>In a cause pending before the passage of the act of 1856 (Laws, 54, ch. 44) authorizing a demurrer to an answer in all cases for insufficiency, the plaintiff demurred to part of an answer which did not contain a counter-claim. The demurrer was heard and sustained.</p> <p>Held, on taxation of costs on final judgment in the action, that the demurrer was a nullity, and there could be no costs for trying it.</p> <p>Plaintiff had a verdict for §450, and an allowance of five per cent, was granted him. A new trial being ordered, his verdict thereon was only §75, on which an allowance of ten per cent, was ordered.</p> <p>Held, that plaintiff could insert only the last allowance in his judgment</p>

Motion- by one of several defendants to vacate a judgment as against him for irregularity; or to allow him to come in and defend on the merits.

<p>Undertaking- on Appeal.—Liability of Sureties.</p> <p>The defendants gave an undertaking upon an appeal taken by two appellants, that “ if the said judgment so appealed from, or any part thereof, be affirmed, the said appellants will pay the amount,” &c. The judgment was affirmed as against one appellant, but was reversed as to the other.—Held, that the defendants were liable upon their undertaking.</p>

Order to show cause why the plaintiff should not have leave to serve a reply, although his time for replying had expired. The action was brought by Stephen D. Dillaye as assignee of Cyrus F. True, against George W. Hiles.

This action was by Charles R. Danenhover against Peter S. March, and Matthew H. Race and Israel Coe, formerly partners under the name of Nace & Coe; and was commenced on November 13, 1856.

Motion to vacate proceedings supplementary to execution commenced before the city judge of Brooklyn, upon a judgment of the Supreme Court. In December, 1855, the plaintiffs in this action obtained judgment against the defendant for the sum of $600. The action was commenced in the county of Hew York; the judgment was docketed, and the judgment-roll filed, in the office of the clerk of the city and county of Hew York.

<p>Appeal from an order overruling a demurrer.</p> <p>The plaintiff brought this action to recover damages for personal injuries sustained by him from being thrown from his carriage in consequence of obstructions left by the agents of the defendants in the Eighth Avenue in the city of Hew York.</p> <p>The defendants demurred to the complaint. The only ground of demurrer urged, was, that since the enactment of 2 Laws of 1867, 1,606, ch. 586, § 6,—giving the supreme court in the first district exclusive jurisdiction of actions against the city,—the superior court could not take jurisdiction of such a cause. At the special term the demurrer was overruled, upon the ground that the statute must be pleaded to enable the court to take cognizance of it. The defendants now appealed from this decision.</p> <p>The decision at special term is reported, 8 ante, 478.</p>

This was an action brought to foreclose a mechanic’s lien; and the plaintiff being about to enter judgment as upon failure to answer, for his damages as assessed by a sheriff’s jury, now moved for an extra allowance.

Proceedings to foreclose a mechanic’s lien. This was an action by Edward Eoberts, as assignee of a contractor, upon a building contract, against Baltis M. Fowler. The assignment upon which the plaintiff claimed purported to vest in him the claims held by his assignor against the defendant ; and also, “ all rights, securities, liens, and remedies consequent upon or incident thereto.”.

<p>Jurisdiction of State Courts.—Patent Bights.</p> <p>A State court has not jurisdiction of suit in which the existence and validity of a patent for an invention must necessarily be shown to enable the plaintiff to make out his cause of action. -</p>

<p>Judgment.—Docketing.—Priority.</p> <p>In the distribution of estates in the Surrogate’s Court, judgments against the decedent are entitled to preference in the order of their priority, notwithstanding that some of them have never been docketed in the clerk’s office of the county.</p> <p>The preference given to judgments in the order of their dates is wholly independent of the question whether they are liens on the real estate or not; while the effect of docketing the judgment in the county clerk’s office is only to make it such alien.</p>

<p>Partnership Claims.—Accounting.</p> <p>The surrogate may decree the payment by the administrator of moneys due to a surviving partner of the intestate upon a partnership account, without preliminary proceedings for a partnership accounting.</p> <p>In respect to the authority of the surrogate to decree the payment of claims against estates, no distinction exists between debts recoverable at law and ' such as are recoverable in equity only.</p>

This was an action to recover damages for injuries to a horse loaned by plaintiff to the defendant. The defendant moved, on the trial, for a nonsuit, on the ground that no affirmative proof of negligence on the part of the defendant had been given. The motion was denied; to which defendant excepted.

This action was brought by the Franklin Building Association against Robert F. Mather, and Margaret his wife, Samuel M. Pettengill, and Sarah his wife, and others. The action was brought to foreclose two mortgages. As to one of these mortgages, which was made in the usual form, no objection to the foreclosure was urged.

Action for the foreclosure of a mortgage, tried by the court. This action was brought by James A. Renaud against Catharine Conselyea, widow of Andrew J. Conselyea, sued as widow and as administratrix of her late husband; and also against eight other defendants, the heirs of Andrew J. Conselyea.

Habeas corpus to admit to Bail. The petitioner, George W. Cole, having been once tried upon an indictment for the murder of L. Harris Hiscock, and the jury having disagreed, now applied to be admitted to bail until the indictment should be called for a second trial

<p>Appeal from an order of the special term denying a motion to dissolve the injunction.</p>

This action was brought by William T. Hicks and Franklin Whiting against Abel Smith and Francis Mather. Pending an appeal taken by the defendants from an .order of the special term, the plaintiffs entered judgment. The defendants then moved to set aside the judgment as irregular; contending that their appeal was per se a stay of plaintiff’s proceedings. The motion being denied, they now appealed to the general term.

This action was brought for the foreclosure of a mortgage. The defendant answered, and afterwards, five days before the circuit at which the cause was noticed, he served an amended answer. This the plaintiff returned, for the frivolousness of the amendments, and proceeded to take an inquest, pursuant to his notice of trial. The defendant moved to set aside the inquest, and his motion being denied, he now appealed.

■ The answer in this case contained five defences. The defendants demurred to the second and third defences, for insufficiency, and moved, also, to strike out the allegations forming the fifth defence, as irrelevant. The demurrer and motion were argued together at the special term, and the decision rendered, allowing the demurrer, and granting the motion, in part, is reported (2 Ante, 450). The facts of the case are there fully stated.

This was an action by Julia Board against George Board, to recover fifty acres of land alleged to have been set off to the plaintiff as her dower as widow of John Board, on proceedings for the admeasurement of dower, had, on petition of the plaintiff, before the surrogate of Orange county. The defence was based on alleged irregularities in the proceedings before the surrogate, which it was contended invalidated the admeasurement.

Exceptions ordered to be heard at general term. This action was brought by Peter Haack against Henry S. Fearing, to recover damages for a personal injury sustained under circumstances which are detailed in the opinions given below. On the trial the justice presiding dismissed the complaint ; and from the judgment thereon the plaintiff now appeals.

Motion to set aside an appeal. In this action, which was brought by James M. Rankin against George W. Pine, a trial was had before a referee, who reported that the plaintiff was entitled to recover of the defendant $81.13 besides his costs. This sum was less than was claimed by plaintiff. On July 19, 1856, the plaintiff entered judgment upon the report, for the sum named with costs.

<p>Injunction.—Constitutionality of Local Laws.—Advertising for Municipal Contracts.</p> <p>It seems, that an owner of a city lot cannot maintain an action to restrain the paying of the street in front thereof; at least, upon a complaint which does not aver that any invasion of the plaintiff’s property is attempted or threatened, or that plaintiff will be unlawfully subjected to a tax or assessment for the expense of the improvement The courts can restrain commissioners authorized to make a street improvement, from committing any abuse of their trust; but cannot inquire into the motives| which induced the legislature to confer the power, or the expediency of conferring it.</p> <p>A private or local bill is not necessarily unconstitutional because its title is needlessly particular, in stating details embraced by the act; or because the title names several things as embraced.</p> <p>Commissioners appointed by the legislature to lay, a pavement within a city are not officérs of the city, such as (under the constitution of 1846, art. 10) must be elected by electors thereof.</p> <p>Where a statute authorizes public officers to use an article which in fact is patented, in the construction of a public work, the legislature must be presumed to have known the rights of the patentee; and any provisions in the act requiring the officers to advertise for proposals and employ the lowest bidder, must be construed so as to preserve and not defeat the authority conferred.</p>

Demurrer to a complaint. This action was brought by The Merchants’ Insurance Company against Richard H. Hinman and his wife, formerly the wife of Thomas Lewis, deceased. The grounds of the action appear in the opinion.

Partition suit, tried by the court. This action was brought by James Rottbeck and Cecilia, his wife, against Matthew Wilks, Eliza A., his wife, and several others, heirs of John Jacob Astor, and against William B. Astor, and others, executors of John Jacob Astor. The facts out of which the action arose appear in the opinion.

<p>Action toe Conversion.—Pleading.—Action against Carriers.</p> <p>Under a complaint charging the defendants with a conversion of the plaintiff’s property to their own use, the plaintiff can only recover upon proof of an absolute appropriation of it by defendants to their own use; or upon proof of what is equivalent—a parting with it to another without authority from the owner. Proof that defendant received the property as a common carrier and has negligently lost or failed to deliver it, will not sustain, a recovery.</p> <p>What is a sufficient evidence of a compulsory appropriation by defendant, sufficient to sustain such a complaint,—considered, in a particular case.</p>

<p>Motion for leave to execute a lease of the premises in litigation in this action.</p> <p>The facts material to the application are stated in the opinion.</p>

This action was brought by the Mayor, &c. of New York against Fernando Wood, to annul a lease or agreement for a lease of buildings in Nassau-street, in the city of New York, belonging to the defendant, and occupied by certain officers for public offices. Previous proceedings in the cause are reported, 3 Ante,' 467, and 4 Ante, 152.

This action was brought by Sarah F. Hogle against the Guardian Life Insurance Company. It appeared by the case made that on the 6th of September, 1866, Effingham H. Warner, then sixty-six years old, procured the defendants ,to issue a policy of insurance upon his life for the benefit of his daughter (the plaintiff) in the sum of $10,000. In 1866, Mr. Warner had had an attack from which he was quite sick.

<p>Action against Hon-resident.—Jurisdiction.—Property within this State.</p> <p>The court cannot make an order for publication of the summons in an action against a non-resident defendant, under section 136 of the Code, subdivision 3,— which allows such order in an action on contract where the defendant has property in the State,—in a case where the property is only brought temporarily within the State with the design of removing it forthwith ; and where, from the nature of the case, there is no agent or factor in charge of the property for the owner, through whom notice of the proceedings could'reach the latter.</p> <p>The provision of section 136 of the Code, subdivision 3, is in derogation of the rights of defendants, and should be strictly construed.</p>

<p>Appeal from a judgment.</p> <p>The facts appear in the opinion of the court.</p>

<p>Action against Ron-resident.—Sherife’s Ceetifioate.</p> <p>Whether personal service of a copy of the summons and complaint out of this State (under Code, § 136), confers on the court any jurisdiction whatever, in any case,—Query?</p> <p>The official certificate of the sheriff of another State is not evidence in this State of the service of papers ; his affidavit should be presented.*</p>

<p>Foreclosure.—Reference on Failure to Answer.</p> <p>In an action to foreclose a mortgage, when the defendant appears, but makes default in answering, and the plaintiff gives due notice of an application to the court for the relief demanded in. the complaint, or for judgment, the court when so applied to may, instead of itself computing the amount due on the plaintiff’s mortgage, refer it to the clerk, or to some other suitable person then, in court, to make such computation.</p> <p>Such reference may be immediately proceeded with, and report being made to the court,.judgment may be rendered thereon. The court does not lose control of the main application, by such a reference.</p> <p>Such a reference is not such a new or independent proceeding as to require to be on a new notice to the defendant (under Code, § 414).</p> <p>Such a reference need not, under Rule 85, be executed in the county in which the action is triable.</p> <p>The present and former rules of the Supreme Court relating to reference in foreclosure suits—reviewed.</p>

Demurrer to answer. This action was brought by Grustavus Moneypenny against the Sixth Avenue Railroad Company, the owners and managers of a horse railroad in the streets of the city of New York, to recover the penalty given by the railroad act of 1857 for exacting tolls or fares exceeding the rates allowed by law.

This was an equity suit, commenced by Aaron Traver and others against John A. Kip and others, to recover certain legacies. The suit was commenced in 1846, in the late Court of Chancery; was continued in the late Supreme Court in Equity, and was brought to a hearing before a referee under the Code. Judgment was rendered, that the claimants of the legacies recover each the sum claimed, with costs. Appeal was taken from this judgment, and it was reversed, with costs.

Order to show cause why certain purchasers of real property from a vendor who had bought at a foreclosure sale, should not be bound by an order for a resale made upon the foreclosure ; and why certain mortgages upon the property made by such vendor should not be delivered up to be cancelled; and why the purchaser at the resale should not complete his purchase.

<p>Action.—Summary Remedies against Nuisances.</p> <p>A municipal corporation, authorized to make ordinances for the purpose of regulating city railroad cars, prohibiting nuisances, and preventing and removing obstructions on the streets, is not thereby authorized to interfere, at a specific point, with the tracks or business of a railroad which is established and conducted under a legislative grant.</p> <p>The question whether the tracks and arrangements of the company are within the authority granted by the legislature, is not to be determined summarily by the officers of the corporation, under ordinances giving them supervision of the streets, and power to prohibit and remove obstructions, hut must be determined by a legal or equitable remedy.</p>

Motion to set aside a judgment for irregularity. This action was brought by Ann Martin against Englebert Lott, for the recovery of specific personal property. It being brought on for trial at the circuit, the complaint was dismissed and judgment rendered for the defendant for the return of the property in question, which had been taken from the defendant, by requisition on the part of the plaintiff. This judgment was perfected December 2-7, 1854.

<p>Motion for an order that a third person alleged to have in his hands property of a non-resident defendant, sued by attachment, submit to an examination concerning the same.</p>

Motion to have judgment docket marked “ secured on appeal.” This action was brought by Samuel Orchard against Abraham M. Binninger, Dexter B. Britton and James E. Brown. The case was tried in January, 1864, and a verdict rendered for the plaintiffs, upon which judgment was duly entered February 2, 1864, for $17,093.55.

Demurrer to complaint. This action was brought by the plaintiff, Peter J. Valentine, to recover of the defendants, James I. Lloyd and Ella his wife, the sum of two hundred and eighty-three dollars \ and eighty-two cents for provisions claimed to have been . furnished and delivered to the defendants at the request of the defendant Ella Lloyd, the wife.

Motion to make a complaint more definite and certain. This was an action for libel. The complaint was as follows:— Title of the Cause. The complaint of Erastus D. Culver, plaintiff in this action, against the defendant, Isaac Van Anden, respectfully shows to this court:— 1.

This proceeding was taken by Henry J. Raymond and George Jones, proprietors of the New York Daily Times newspaper, against Richard B. Connolly, comptroller of the city of New York, to recover for advertising to the amount of $25,064.92, done for the corporation of the city of New York, between January 1, 1864 and June 1, 1868.

The complaint in this action alleged that the plaintiff was the lessée of a house and premises in the city of New York for the term of eight years: from May 1,1852, and that since that date he had used and occupied, and still used and occupied, the first floor as a merchant tailor’s store; and that he also used and occupied during the same period the yard and rear part of the said premises, and had hired and rented the basement to other persons, who used and occupied them…

<p>Motion to vacate attachment.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Motion to dissolve an injunction.</p> <p>The facts in the case are stated in the opinion.</p>

<p>Attachment.—Separate Property of Married Women.</p> <p>Where an attachment against the property of the husband is levied on the separate estate of the wife, her remedy is by action for the trespass, not by motion to vacate the attachment.</p> <p>Every allegation essential to the granting of an attachment may be disproved on a motion to set it aside.</p> <p>Where the indebtedness is averred and denied by the affidavits, as a conclusion of law, that point may be left to be determined at the trial.</p>

<p>Eviction.—Recoupment by Subeties.</p> <p>A surety cannot, in an action against him by the creditor of his principal, recoup or set-off a claim to damages in favor of his principal against the creditor, although such claim might be a defence in an action against the principal.</p> <p>Nor can the facts constituting such claim be plead by way of showing that the principal was not liable to the plaintiff.</p> <p>The surety has no right to make use of a cause of action existing in his principal as a defence ; but if compelled to pay the debt guarantied, he must seek reimbursement from his principal, and leave the principal to seek recourse against the creditor.</p> <p>Whether in such a case, if the principal be insolvent or colluding with the creditor, the surety may cause the principal to be brought in as a party, or may have proceedings stayed until the plaintiff has litigated the matter with the principal—Quere?</p>

Motion to continue an injunction. This action was brought by Peter Dolan to enjoin the Mayor and Commonalty of New York and others from executing a contract for the paving of Seventh-avenue from Fourteenth-street to Fifty-ninth-street, with what is called the Stafford pavement, authorized under a resolution of the common council', passed February 18, 1868.

Motion to have the writ of inquiry, which had been issued upon the defendants’ default to answer, executed before a judge at a trial term or before a special jury. The action was by a female for libel. Defendants failed to answer. Upon issuing a writ of inquiry to assess the damages, the plaintiffs moved to have it executed before the court instead of before a sheriff’s jury.

Motion to change place of trial. This action was brought by Alrick Hubbell against Hiram Sibley, to set aside the foreclosure of a mortgage by advertisement, on the ground of irregularities in the proceedings to foreclose.

Motion to confirm referee’s report. The defendants in this action had taken possession of certain printing-presses, and advertised them for sale under a chattel mortgage made to them by one of the plaintiffs. This suit was brought to enjoin the sale and avoid the mortgage, on the allegation that the mortgage was made without consideration, and was void.

<p>Marshalling Assets.—Individual and Partnership Debts.</p> <p>Upon a settlement of partnership affairs had after the death of S., one of the partners, the firm was found insolvent, and a large part of the joint debts remained unpaid. In marshalling the individual assets of S. between the individual and partnership creditors,—</p> <p>Held, that the partnership creditors could not be paid out of the separate estate of the deceased until all separate debts were paid. If any surplus remain it should be applied to the payment of the partnership creditors, in which case those that have received partial payment out of the partnership property must bring in their dividends and share rateably with those who have not received dividends, or else be excluded until the latter class have received a sufficient amount to place them on terms of equality with the former.</p> <p>In this State the rule is settled that joint creditors will not be permitted to reach the individual estate of a deceased partner until all the separate creditors are satisfied, and the exception maintained in England in case of no joint estate and no solvent surviving partner, does not prevail here.</p> <p>Equity will not interfere to impair the legal preference in regard to the legal assets which appertains to the separate creditors at law.</p>

Motion to dissolve an injunction. This action was brought by Cornelius M. Messerole and James L. Libby against Morris A. Tynberg. The plaintiffs claimed an exclusive right to use the word “Bismarck ’ ’ in its application to paper collars. They obtained a preliminary injunction against an infringement by the defendant, which the defendant now moved to dissolve. -

<p>Motion to confirm report of referee.</p>

Motion to suppress a deposition taken upon commission. This was an action brought upon a promissory note, against the endorser. The defence was usury in the inception of the note, and the defendants obtained a commission to be issued to take the testimony of one Perry, the maker, then in the State of New Jersey. Upon the return of the commission, the plaintiff moved to suppress the deposition.

The plaintiffs, Howard M. Ticknor and others, recovered judgment in the Hew York marine court, against Francis J. Kennedy and others, for more than $25, exclusive of costs.

The complaint was on a promissory note made by the defendant Harrington to the defendant Searls, and by him endorsed to the plaintiff. In his answer, which was verified, Harrington set up two separate defences:—1. A denial of the making of the note for a valuable consideration, and a denial for want of knowledge, &c., of the endorsement; 2.

• Appeal from á judgment. This action was brought by Ellen Harris against Jeremiah Slaght and others, the executors of Folkerd. C. Sebring and his widow, and the American Bible Society, and-three other corporations. Cornelius Sebring, of Ovid, Seneca county, died previously to 1830, seized, among other property, of a lot of land in that town, containing about thirty acres. He left two sons and four daughters, his only heirs-at-law.

Motion to vacate summons, complaint, and judgment entered thereon as by default. It appeared from the affidavits that there were, at the time of the commencement of this action, and had been for several years previous, two organizations, each claiming to be the legally constituted board of trustees and officers of the defendants.

<p>Action upon Contract.—Demurrer to Counter-claim.</p> <p>An action brought by a widow to whom a life estate in certain parts of a house have been assigned as dower, against the owner of the fee, to recover a certain amount, averred to be bis fair proportion of taxes, assessments, and water-rent of the whole building, paid by her to protect her estate under his neglect, is an action upon contract.</p> <p>No averment of request or promise is necessary,</p> <p>Quere t whether upon demurrer to defendant’s counter-claim the defendant can avail himself of the objection that the complaint does not state facts sufficient to constitute a cause of action ?</p> <p>In considering a counter-claim upon demurrer to it for alleged insufficiency, the facts alleged in the complaint, which are not inconsistent with the averments in the counter-claim, are to be taken as admitted.</p>

This action was brought by William H. Van Kleek against Philip Leroy and William H. Deyo, to recover certain goods, on the ground that they had been purchased by William F. Leroy, under fraudulent representations as to his circumstances and responsibility. A few weeks after the purchase, Willim F. Leroy made an assignment to the defendants for the benefit of his creditors.

<p>Demurrer to complaint for foreclosure of a mechanic’s lien.</p>

<p>Appeal from a judgment foreclosing a mechanic’s lien.</p>

<p>Supplementary Proceedings.—Appointment of Receiver.</p> <p>Under the Code a receiver of the property of a judgment debtor cannot be appointed, except in proceedings upon the return of an order, personally served on the judgment debtor, requiring him to appear and answer.</p> <p>A receiver appointed without proceedings giving such notice has no authority.</p> <p>Quere ? whether the debtor in a judgment obtained on a summons served only by publication, and not personally, is a judgment debtor within the meaning of the provisions respecting supplementary proceedings ?</p>

This action was brought by Austin Melvin and others, plaintiffs and respondents, against James Wood, defendant and appellant. The plaintiffs claim to recover in this action a balance of account • due them from the defendants, copartners, transacting business- under the name of Samuel Barker. 'The referee before whom the action was tried found the following facts: 1.

<p>Cause of Action.—Contract.—Tort.—Assignment.</p> <p>A. and B. entered into a contract with 0., to render services, and to be paid in stock, which C. falsely represented as valuable ; B. assigned his interest in the contract to A., who thereupon rendered the services, and on being tendered the stock in payment refused to receive it, and brought an action for the value of the services as upon contract,—</p> <p>Held, 1. That his complaint setting forth these facts was not demurrable, as joining a cause of action upon contract with one for tort, nor as being an action for tort by an assignee of the cause of action. 2. That the action was for fraud, and the summons should have been for relief, and the complaint should have prayed damages. 3. That as A. alone rendered the services, he alone was injured by the false representations, and the cause of action was in him alone.</p>

<p>Application for an order that the defendant show cause why an injunction should not issue against him, and that he be meanwhile restrained from the acts from which it was sought to enjoin him.</p>

Motion to vacate an order of arrest. This action was brought by Robert McButt, James H. Black, and Alexander Guild, against Adolph Hirsch and Simon Levinger. The grounds on which the present motion was based appear in the opinion.

Motion to continue a preliminary injunction. This action was brought-by William Moser and William J. Ree, against James A. Polhamus and Eugene J. Jackson.

<p>Motion to strike out portions of a complaint.</p> <p>This action was brought by Alvah Blaisdell against Henry J. Eaymond and others, editor and proprietors of the Hew York Daily Times, to recover damages for libel.</p> <p>The complaint set forth, by way of inducement, that on January 30, 1857, one Harvey Burdell was murdered at Ho. 31 Bond-street, in Hew York city;—that a coroner’s inquest was held, and the plaintiff subposnaed as a witness before the coroner’s jury;—that the jury found that the murder was committed by Emma A. Cunningham and John J. Eckel, who were thereafter indicted by the grand jury.</p> <p>The complaint then averred in the usual form that the defendants published of and concerning the plaintiff an article, which was set out. The article was entitled:—“ The Burdell Murder—Remarks on the evidence and the present aspect of the case—and was in form a letter addressed to the editor of the Daily Times.</p> <p>So much of the alleged article as is important in reference to the present motion, together with the innuendoes employed in the complaint, was as follows :—</p> <p>“ For ourselves we doubt the propriety of so mighty a power as the press, or the public sentiment of the city of Hew York, deciding, or attempting to decide, without the legitimate proofs, the guilt or innocence of any person. Their mistakes, and the press is not perfect, are fearful and appalling to the unfortunate victims of its error. Hence, not to implicate, but to expose the feeble—we had almost said contemptible—evidence, contemptible in view of the high offices claimed of it, which yet remains as the fabric of guilt against Mrs. Cunningham and Eckel, let us look at the testimony and the position of one” (meaning the plaintiff) “ who has contributed at least his share of material to awaken suspicion against the occupants of the house Ho. 31 Bond-street. We repeat, we seek not to taint with crime any person. On the contrary, our object is to show how easy it is to cast suspicion on the innocent.</p> <p>“ Dr. Blaisdell” (meaning the plaintiff) “ had held business relations for a long time with Dr. Burdell. He had been his partner. He had had access to the rooms of the deceased; and it is not unreasonable to suppose was necessarily familiar with the mode of ingress and egress, and might have the means, by keys or otherwise, of gaining admittance to them. There seem to have been important business or other intimate relations subsisting between Dr. Blaisdell and deceased, as the latter, he says, came quite frequently to see him.</p> <p>“ Dr. Blaisdell informs us he had not for some time previous to the murder been a frequent visitor to the house of Dr. Bur-dell, yet on the afternoon preceding the murder he is shown to have been there on two occasions. We have not referred to the evidence since its publication, but the fact that he was there twice was disclosed by other witnesses, if we recollect correctly” [meaning thereby that the said murder was committed by the plaintiff, and to create a public impression and belief that the plaintiff was the murderer of the said Dr. Harvey Burdell].</p> <p>“ To Rev. Dr. Cox, or some other person, in conversing the afternoon preceding his death, deceased disclosed the fact of his having an appointment to meet Dr. Blaisdell that evening. This appointment Dr. Blaisdell says he did not fulfil” [meaning thereby to insinuate that the plaintiff had falsely and deceitfully pretended to make a friendly appointment to meet Dr. Burdell on the evening of the murder, when his (the plaintiff meaning) real object was to get an opportunity to murder the said Doctor Burdell].</p> <p>“ Again, it will be recollected that it was mainly from the evidence of Dr. Blaisdell that the coroner, the jury, and the public were convinced, and had it proved by satisfactory evidence, that Dr. Burdell was not in the city of Hew York on the 28th day of October, the day of the alleged marriage. Circumstances were, however, soon disclosed,—the meeting of the Artisans’ Bank directors,—which dispelled the otherwise conclusive, evidence of his absence. Again, it will be recollected, it was the evidence of Dr. Blaisdell—evidence the most remarkable and startling in its character, if true, which has ever occurred—that so aroused the indignation and suspicion of the community against Mrs. C., Snodgrass, Eckel, and the daughters of Mrs. C.” [meaning thereby, and intending to make the public believe, that while the plaintiff was the real murderer of Dr. Burdell, he (the plaintiff meaning) had actually perjured himself in his testimony given before the coroner and jury by falsely swearing to facts tending to implicate other persons as the murderers; and further meaning to insinuate and make the public believe that the plaintiff had, by his evidence, wickedly aroused the passions and indignation of the community against the said Mrs. Cunningham, Snodgrass, Eckel, and the daughters of Mrs. Cunningham, while in truth and in fact the plaintiff was guilty of the murder],</p> <p>“ Saying nothing of that.part of Dr. Blaisdell’s disclosures of relations subsisting between Mrs. C. and Dr. Burdell—of which he has furnished the most recherché facts, as derived from conversations with the deceased—Blaisdell recounts a long conversation had the afternoon preceding the murder with Dr. Burdell, which, if true, would well-nigh convince us that Dr. B. had received an impress from the spirit-world, strong and irresistible, of his immediate horrible death” [meaning thereby that the plaintiff had sworn falsely, and was guilty of wilful and corrupt perjury in his said testimony, for the purpose of convicting the said Mrs. Cunningham of the said murder, of which he (plaintiff) knew she was innocent],</p> <p>“ Had Dr. Burdell, from his life and character, been suspected of holding converse with angels and invisible spirits, there might be more credit given to these premonitions than at present we are disposed to allow. Dr. Burdell wished him to come and live with him, because he was afraid of being murdered by Mrs. 0., one of the daughters (naming her), Snodgrass, and Eckel; and he was depressed, gloomy, and apprehensive of death from these causes. Assuming there were reasonable apprehensions from Mrs. 0., what there was to awaken suspicion and fear of death on the part of the daughter, Snodgrass, and Eckel, was not disclosed by deceased, has never been disclosed, and never will be disclosed. At the time of Dr. Blaisdell’s examination, however, the community were ready to believe that all the occupants of this house were one genial and fused mass of debauchery and crime. And it is this unreasonable and unauthorized hypothesis that has since been attempted to be sustained. Whatever culpable proceedings were carried on by them in their usual intercourse,—and how few roofs could be uncovered for the inspection of the world, as grossly as this has been, without mortification and shame to the inmates!— there is nothing disclosed, save the murder of Dr. Burdell itself, which authorizes the charge of fitness of character for a murder among its occupants” [meaning thereby further to insinuate and make the public believe that the said murder was not comm.it-ted by any occupant of the said house, but was committed by the plaintiff, who was not an occupant of the said house, and who had further perjured himself by endeavoring in his said testimony to shield himself from the murder of which he in fact was guilty, and to convict innocent persons of his said crime].</p> <p>“ Hence, then, we regard it as fair to analyze this evidence of Dr. Blaisdell in this manner: 1st. Are the admonitions of coming great and solemn events, such as sudden death, recognized hy human experience ? In reply, we answer, such admonitions are not recognized. But as many may differ with us, those who hold the contrary must regard these admonitions, when given, as correct and infallible. How it is apparent to any candid mind that Dr. Burdell was not murdered by these four persons ; hence we say there was no supernatural impress made upon his mind that he was to be so murdered. 2d. As no naimral or apparent reasons were given by him which, had they existed, would have been minutely discussed, we come to the conclusion that such conversation as Dr. Blaisdell relates is improbable” [further meaning to insinuate that the plaintiff had sworn falsely in his said testimony].</p> <p>“ Again, as to the probabilities of Dr. Burdell asking him to come to the house and live with him until spring, what were the social and domestic relations of Dr. Blaisdell? Was he without a family, or did he have one that he could leave to live in another place ? Dr. Burdell knew what his situation was, and whether there was a possibility of his coming. If there was no possibility of his coming, it is irrational to suppose that Dr. B. asked him to come. If he had a wife or family, he certainly could not bring them into a house already filled, and whose inmates were impressed upon him as so terrible.</p> <p>“ Again, Blaisdell, from the declarations of deceased, informs us that he had made a will. Dr. Burdell may have imparted this information to this witness. If so, the presumption is very strong that Dr. Burdell was telling a falsehood. A will to be such must have two witnesses. To these witnesses the person making it must disclose, not the contents of the will, but the fact that it is his last will and testament, and ask them to witness its signature as such. Without this disclosure the will is no will. The witnesses to this will have not yet disclosed themselves, and no application has been made to the surrogate for its probate” [thereby further insinuating and intending to make the public believe that the plaintiff* had perjured himself in his testimony in reference to the said Dr. Burdell having made a will].</p> <p>“ We think it no great license to assert that the statements of this witness seem overstrained • and unreasonable. Again, we have already found him conveying erroneous impressions—we do not say misstating facts—concerning the 28th of October, possibly so important, if uncorrected, as to alone determine, in a criminal trial, the guilt and therefore the life* of Mrs. Cunningham. Is not this fearful mistake, then, a sufficient warrant, even if his story were probable, to make us regard with the greatest caution his assertions ?</p> <p>“ The condition of the rooms, the open window, the burning gas, the almost certainty of Dr. Burdell’s murder soon after coming in, instead of waiting for him to be in bed and asleep, as occupants would have found most convenient, the key in the door, the blood leading to the front d6or,—all indicate that the deed was done by a party staying but a short time after the murder, and leaving hastily after it was done.</p> <p>“ We come to the conclusion, then, that the murder was committed by a person familiar with and who had access to the house, and who did not remain in it. Could such a person be found who had a motive, and who knew of the unpleasant relations subsisting between Dr. B. and Mrs. C., we should say he was the man—for in the knowledge of this last fact he would find the security to lull suspicion as to himself, and to mislead inquiry.</p> <p>“ But again, there are yet other and stronger facts showing that the murderer” (meaning the plaintiff) “ was not the occupant of No. 31 Bond-street, and that he has been at large and unsuspected up to the close of the inquest. The production and the evidence of the witness Farrell are prima facie proof of this. If the murderer is still at large and unsuspected, it is for his interest to satisfy the public and quiet further effort of the legal authorities with suspicions against the occupants, especially Mrs. C. and Eckel. Let us look back at the coroner’s inquest. We find that the evidence which Dr. Blaisdell” (meaning the plaintiff) “ and the other witnesses had then given was becoming wholly unsatisfactory to the intelligent public. Nearly a week had elapsed since the murder. The evidence of Eckel, Mrs. C., and Snodgrass had been taken. The time of the murder had been pretty satisfactorily determined. If there was an outside murderer, the matter began to look ciútica] and dangerous ; further evidence was necessary to implicate the innocent and thus screen the guilty. He” (meaning the plaintiff) “ has more work to do, and accordingly does it. It was but a trifle to what he had done. It is easily planned and easily executed. This done, the coroner gets an anonymous letter telling him of the important evidence of the man Farrell” (meaning that the plaintiff wrote the said anonymous letter).</p> <p>“The letter is signed by no name, and we know not who wrote or instigated it. At this late day Farrell is found” (meaning by the plaintiff). “ He frequents saloons and rum-shops, and drinks freely. For several days, under every roof in this city, had this murder been the absorbing topic of conversation. Especially in drinking-houses, and among the poor and uneducated, who read but little, does a great crime spread its details with the greatest rapidity, and become the most absorbing; yet if we are to believe this man, he had not heard of this murder for several days. He was then one of ten, twenty, or at most fifty, on Manhattan Island who were ignorant of it, amidst over half a million. His remarkable and wonderful connection with it had never been spoken of by him to any person until the necessity of such a witness was apparent, and until about the time of the anonymous letter” [meaning thereby that the plaintiff had wickedly conspired with one Farrell, represented to be a low, drunken, and corrupt man, and had suborned said Farrell to testify falsely for the purpose of proving the said murder was committed by the occupants of said house, and thereby divert public attention from himself, who was in fact the murderer].</p> <p>“ Is not his production, then, without examining his statements relative to the murder, the strongest circumstantial evidence of the murderer being at large ? Before examining the statements of Farrell, let us remember no weapons, clothing, or badges were left, save the ghastly crime itself. Neither precedent nor subsequent traces of the deed are found, the connection with which, even by false evidence, could implicate the suspected parties. The field in which to manufacture evidence was thus narrowed. The four walls inclosed the crime when committed; hence seeing the persons doing the act could not he pretended, unless under Circumstances requiring immediate disclosure to save the witness from criminal cognizance. To have observed the murderer remove or destroy the bloody evidences of his guilt, would call for a perilous invention—1st, of time ; 2d, place ; 3d, the evidences and their destruction; 4th, inability to detect the invention of the witness by search for traces of the alleged evidences and their destruction—requiring in the aggregate an invention so complex as to be wholly unsafe and impracticable.</p> <p>“ Sound leaves no trace behind. The cry of murder had already been heard. Here, then, was a plausible field for invention” [meaning thereby that the grounds of suspicion against the occupants of the said house were all the wicked, corrupt, and malicious inventions of the plaintiff].</p> <p>“ Eckel, it was insisted upon, was a party to the crime. The official and public ear had been already prepared to hear and believe any thing and every thing of him. To implicate him would answer for both him and Mrs. 0. So Farrell hears and sees circumstances that leave no record of their existence, so simple and plausible as to be possible, and were they not inventions, probable, and yet, if true, so remarkable as to force every intelligent mind to the conviction, he must have been driven there by Providence solely and specially as an instrument for the conviction and punishment of Eckel.”</p> <p>The defendants now moved to strike out certain of the innuendoes, on two grounds :—</p> <p>I. That they were not properly framed.</p> <p>II. That they were not supported by the words charged.</p> <p>The innuendoes objected to are inclosed in brackets in the above statement.</p>

This action was brought by the Hartford County Quarry Company, a Connecticut Corporation, against John Pendleton. Before answer the defendant noticed a motion to require the plaintiff to file security for costs. The plaintiffs served a copy of a bond proposed to be given by them, executed by two sureties.

This action was brought by James Lee and Benjamin C. Lee, against James Ainslie and John J. Hicks. The complaint action was as follows:—■ Title of the Cause.

Appeals from orders. This action was brought by David L. Gardiner against Julia G. Tyler and Harry Beeckman. The facts are stated in the opinion of the court. The cause- came up upon appeals involving the question of the receiver’s right to commissions and disbursements. --, for the appellant.

<p>Appeal.—Waiver.—Payment of Costs.</p> <p>If a party to an action proceeds upon an order made in the cause, or accepts any benefit or advantage under it, he will be precluded from asking its review. Therefore, where an order was granted that defendant be allowed to answer on payment of costs, and plaintiff accepted the costs and received the answer,— Held that the acceptance of the costs, if they were received before appeal taken, was a waiver of the right of appeal, and if after, was a waiver of the appeal.</p>

This action was brought by James M. Smith, Jr., Cyrus Cleveland, and Americus V. Potter, against Henry R. Smeltzer, to recover damages for non-fulfilment by defendant of a certain agreement for the sale of real property, entered into between the plantiffs and the defendant.

Three cases were submitted to the supreme court for decision, upon a statement of facts, without action, under the provisions of the Code of Procedure. The first was a claim by Charles W. Swift against the city of Poughkeepsie. The second, by George Van Kleeck against Frederick Woodruff, collector of taxes of the city of Poughkeepsie. The third, by David C. Foster against Cornelius Van Wyck and others, assessors of the same city. .

This action was brought by Arthur Hauptman against John M. Catlin and Catharine A., his wife, to foreclose a mechanic’s lien upon a house and lot, the separate property of the wife. The facts are sufficiently stated in the opinion.

<p>Appeal.—Increasing Judgment.</p> <p>The general term of the IT. T. Marine Court has no power,'on appeal from a judgment rendered at special term, to direct that it be modified by increasing the amount.</p> <p>The utmost that the court can do where a judgment appealed from is held to be too small, is to direct a new trial unless the party against whom such judgment is rendered consent that it be increased.</p>

This action was brought by Smith and Oliver Davis, in the superior court of the city of blew York, against Cornelius R. Duffie and others, to redeem certain lots and premises, situated in said city, from the effect and lien of a mortgage covering the same, made by the plaintiff, Smith Davis, to the defendant, Cornelius R. Duffie, dated March 8, 1838, which mortgage was given to secure the payment of $100, and interest, within two years from its date. • The court at special…

Motion to vacate an order of arrest. The defendants were commission merchants and auctioneers, and the plaintiffs consigned to them dry goods to be sold by them at public auction, the defendants’ commissions being five per cent, on the gross sale, to wit: two and one-half per cent, for the sale, two per cent, for a guaranty, and one-half per cent, cost for cataloguing the goods. The defendants were to have ten days to account to their consignors.