Volume 4 — Daly's New York Common Pleas Reports

<p>The action was tried before Judge Van Brunt and a jury. The court directed a verdict for the plaintiffs for $19,361 51, ordering the exceptions to be heard in the first instance at General Term, judgment in the mean time to be suspended.</p> <p>The action was brought to recover for the loss of ninety bales of cotton, insured by the defendants under an open policy issued to the plaintiffs in Jahuary, 1866, and which had been continued by indorsement of successive additional amounts, to a time subsequent to the insurance in question.</p> <p>The body of the policy insured “ B. Atkinson & Co., on account of whom it may concern, in case of loss, to be paid to them in the gold currency of the United States, at and from Oolumbus and other ports and places in the interior of the State of Georgia, via Apalachicola, to port or ports in Great Britain. On cotton—to cover all shipments, their own, or consigned to them, or in which they have an interest by vessels sailing on and after 15th December, 1865. To attach, from time of shipment, and also to cover the risk of fire on cotton in transit while waiting shipment.” The enumeration of perils insured against included “ barratry of the master and mariners,”—cotton, “ valued at $190 per bale unless otherwise agreed.” “ All approved indorsements, on pass book to apply in all respects to that policy, the same as if indorsed thereon ;” also, “ to cover such other risks as may be approved and indorsed hereon.”</p> <p>A subsequent indorsement was in these words: “ March 5th, 1866. It is understood and agreed that this policy covers from the interior of the State of Georgia via the Atlantic as well as the Gulf ports to port or ports in Europe.” On the 31st October, 1866, the plaintiffs reported to the defendants as a risk to be covered by the policy, 202 bales of cotton from Augusta, Georgia, to Liverpool, England, valued at $26,260, gold.</p> <p>The 202 bales of cotton were purchased at Augusta by Branch, Sons & Co., of that place for account of the plaintiffs, and by the latter’s order were shipped by railroad to Charleston, thence to be shipped to Liverpool per bark Victoria. Freight of the whole of the cotton was engaged, and the master of the Victoria gave a clean bill of lading for the whole. Seventy-seven bales, however, were left out of the Victoria for want of room, and were sent by the brig Albert, arriving safely at Liverpool. Ninety bales taken by the Victoria, being the ninety bales in question, were carried on deck, and •on the voyage were jettisoned in a storm. The plaintiffs in New York had no knowledge of the shipment of these bales on deck until they heard of the loss, by telegraph, on the arrival of the Victoria at Liverpool, and the defendants had no knowledge of it. The rate of premium was fixed as for cargo under deck, and the proof was that the regular rate for deck cargo would be three times as much as for the same cargo under deck.</p> <p>Street Brothers & Co., of Charleston, agents of the owner of the vessel, knew of the lading of the cotton on deck, and stated to the captain that as he had given clean bills of lading for the cargo, he was bound to carry the cotton under deck, or to provide for it on deck by extra insurance; that the insurance taken on clean bill of lading would not cover the cotton on deck. The bill of lading in the margin stated that the cotton was insured in the open policy of R. Atkinson & Co., the plaintiffs. By arrangement between the agents of the vessel, the captain, and supercargo, the latter, before sailing, wrote to the consignees of his owners in London, stating that the cotton was on deck, and requesting them to insure the same for $9,000 gold, for account of the vessel.</p> <p>The defendants at the trial, moved the court to dismiss the complaint, which was denied, and the defendants excepted. Also to direct a verdict for the defendants, which was denied, and defendants excepted. The court directed a verdict for the-plaintiffs, the exceptions to be heard in the first instance at general term.</p>

<p>Defendant, having agreed to purchase a certain numheriof hides of plaintiffs, at a fixed price, accepted a delivery, but afterwards alleged that a part of them were of an inferior quality to that contracted for, and requested plaintiffs to to take them back. Plaintiffs denied that the hides were inferior to the contract quality, but took them back as requested, and examined them, and having satisfied themselves that they were of the proper quality, tendered them again to the defendant, who refused to receive them.</p> <p>Held, a sufficient part delivery to take the case out of the statute of frauds.</p> <p>Held further, that plaintiffs, by taking back the hides, did not rescind the contract, or give an acquiescence to defendant’s rejection of them amounting to a rescission, and that the hides being of the proper quality, they were entitled to recover damages for defendant’s refusal to fulfil his contract.</p> <p>In such a case, Held, that plaintiffs might sell the goods at private sale, and without notice to defendant; and, provided the sale was a judicious one, could thereafter recover from defendant the difference between that price and the contract price.</p>

Appeal by defendants from a judgment of this court entered on the report of a referee. This was an action by the plaintiffs against the defendants, who were doing business in New York city, under the firm name of Colgate & Co., to recover the amount of a draft for $6,000, drawn on the defendants, with five per cent, damages, according to the laws of Indiana.

<p>• Appeal by defendant from a judgment of the 7th District Court.</p> <p>The action was brought to recover damages for eviction from hired premises. It appeared on the trial that the defendant had leased to the plaintiff the house Ho. 404 East 50th street, with the exception of the parlors and the front room on the 3d floor, for one year, beginning May 1st, 1870, and that about May 1st, 1870, the defendant put the plaintiff in possession of a portion of the demised premises, and with the plaintiff’s consent, had retained possession of certain rooms. After-wards, the plaintiff demanded possession of these rooms, and, as defendant did not give him possession, he sent him a bill for rent of such rooms, which was not paid. The plaintiff afterwards removed from the premises on account of the defendant’s failure to give him possession of the whole of the demised premises, and brought this action to recover damages for an eviction.</p> <p>He recovered judgment in the 7th District Court, for $250 and costs, and the defendant appealed to this court.</p> <p>The facts relating to the admission and exclusion of evidence, are stated in the opinion.</p>

denying plaintiff’s motion to vacate or modify a judgment on the merits entered in favor of defendant. This was a proceeding under the. Mechanics’ Lien Law of' 1863, relating to the city of New York. The lien was filed May 6, 1868, by the plaintiff, a sub-contractor, against the de- ■ fendant, the contractor, and Wm. H. Vanderbilt, the owner, for work and materials furnished in the erection of No, 459 Fifth avenue. The claim was for $4,068 67, and interest from April 20,1868.

These cases were argued together, and the questions raised on the appeal are substantially the same. In June, 1869, the defendant employed Stewart and Doughty „ (the last named being an auctioneer) to foreclose a certain chattel mortgage which he (deféndant) held upon a liquor store and fixtures in this city.

The plaintiff, by lease under seal, dated March 3, 1866, leased to Eugene Mendes “ the whole of the building and premises known as Ho. 645 Broadway, in the city of Hew York, and also the three upper floors of Ho. 647 Broadway, in the said city, with the privilege of using the stairs of Ho. 647 Broadway for the purpose of carrying in or out ashes, coal, and so forth, with the appurtenances,” for ten years from May 1, 1866, at the yearly rent of $11,500, payable quarterly.

This action was instituted March 16th, 1857, by the plaintiff, as receiver, in proceedings supplementary to execution issued against the defendant Beiser, upon a judgment for $201 60, recovered against him by one Dolan, for the purpose of setting aside a general assignment made by Beiser to the defendant Menck, for the benefit of his creditors, as fraudulent as against Dolan.

<p>A real estate broker, being employed to find a purchaser for a house and lot, introduced to his principal a person who verbally agreed to buy the property at a certain price, at the same time paying ten dollars on account of the purchase money, for which the vendor gave a receipt, stating that the “ sum received was part of purchase money on the sale of my house.” Reid, that the broker had performed his agreement to find a purchaser, and was entitled to his commission, although subsequently the purchaser refused to take the property.</p> <p>The broker is entitled to his commission as soon as he has found a party willing to purchase on terms which the vendor is willing to accept, and without regard to the question whether he subsequently refused to complete the bargain.</p> <p>It is not necessary to entitle the broker to compensation that the contract to purchase should be in writing.</p>

Exceptions heard at general term. On December 24th, 1867, the plaintiffs held the promissory note of the defendant, due that day, for $615 09. The defendant, being unable to pay the note, and having 50 cases of Muscat wine and 100 cases of Hygienic wine, gave plaintiffs a bill of sale of such wines as follows: “Hew York, December 24th, 1867. Messrs. G-omez, Wallis & Go.

Appeal by the defendant from a judgment entered on the verdict of a jury. The action was brought to recover damages for the conversion of personal property.

<p>Appeal from a judgment of this court, entered on a decision of the court at a trial before Judge Vab Bbubt, without a jury. The facts are stated in the opinion.</p>

<p>The defendant sold a milk route, together with the good will, &c., and agreed that he would not, for three years, sell to any of the customers on the route. Held, in an action for damages for a breach of the agreement, that evidence of loss of customers and diminution of daily profits was properly admitted in evidence on the question of damages.</p> <p>Where defendant in such a case gave a writing in the form of a bond, but not under seal, by which he covenanted not to interfere with the milk route, Held, that the remedy of the plaintiff for a breach was not restricted to an action on the bond; but he might sue on the verbal agreement, and the writing was admissible in evidence at the trial. r</p>

Appeal by defendant from, an order of the special term, made April 13th, 1869, denying the defendant’s motion to dissolve a preliminary injunction restraining the collection of a judgment for §57, entered February 19th, 1869, in the Seventh District Court of Hew York city, in favor of the defendant against the plaintiff.

<p>The defendants’ policy of insurance provided that all fraud or attempt at fraud by false swearing or otherwise, on the part of the insured, should cause a forfeiture of all claim under the policy. Held, in an action for a loss under the policy, that the fact that the plaintiffs in their preliminary proofs of loss and in their testimony on the trial, swore that their loss was a great deal—e. g., one half—more than it was found to be by the referees to whom the issues in the action were referred, is not even presumptive evidence of false swearing or of fraud on the part of the insured, within the meaning of the policy.</p> <p>In such a case, the plaintiffs have the right to testify as to what they believe to be their loss, and no matter how much that may exceed their recovery in the action, fraud will not be deemed to be established, unless it appears: 1. That there were no such goods of such value destroyed, and 2. That the insured knew, or must have known, the fact when they swore to their preliminary proofs of loss.</p> <p>Where, on the trial of an action on a policy of fire insurance, the plaintiffs swear to their loss at a certain fixed sum, and the defendants introduce circumstantial evidence to show that it could not have been more than a certain smaller sum, it seems the referee or jury is not bound to adopt either estimate, but may give a verdict .for an intermediate sum, and Held, if it is an error, it is one of which the plaintiff alone can complain.</p>

This action was brought by the plaintiff, part owner and agent for the other owners of the brig Josie A. Devereux, to recover the freight on a quantity of guns and pistols from New Orleans to the Continental stores in Brooklyn. The complaint alleged that the goods were transported and delivered to defendant, and that he received them, and agreed to pay the freight. The answer set up two defenses: 1. A general denial, and 2.

The proceedings were had under L. 1863, ch. §00, providing for mechanics’ liens in the city of New York, and resulted in a judgment in favor of the plaintiff, from which defendants appealed to the court at general term. The facts are stated in the opinion.

<p>The defendant bought a heater of the plaintiff, on condition that it should heat his house in a certain manner. After it was put up, the defendant complained to the plaintiff that it did not heat his house as agreed, and plaintiff made certain . alterations in it, after which the defendant made no more complaints. Held, that the defendant must be regarded as having elected to keep the heater, but he did not thereby lose the right to sue for a breach of warranty, or to show the extent of its diminished value, by way of abatement in an action for the price.</p>

<p>Appeax from a judgment of the Marine Court.</p> <p>The complaint in the action alleged that the defendants, James B. Smith, Jr., William J. Gordon, George A. Fellows, Solomon D. McMillan, and Martin B. Cook, were, at the times thereinafter mentioned, partners in the storage business, under the firm name, of James B. Smith, Jr.</p> <p>That such copartnership was entered into in accordance with an agreement in writing made between the defendants, dated April 29th, 1867, and to continue until May 1st, 1872.</p> <p>That by said agreement it was provided that the plaintiff should be employed as superintendent and storekeeper in their business during the said term—to wit: from May 1st, 1867, until May 1st, 1872, at a salary of four dollars per day, Sundays included.</p> <p>That plaintiff consented to the said agreement, and in accordance therewith, about May 1st, 1867, entered into the employment of defendants, as such superintendent and storekeeper, and duly discharged all the duties thereof until about March 24th, 1870, and had ever since been; and still was, ready and willing, and had from day to day duly offered to perform all the conditions of the said agreement and the duties of the said employment upon his part. That about March 24th, 1870, the defendant, Smith (who had the active charge and management of defendants’ business), had refused, and still refused, to allow him to do so or to pay him therefor, from and after January 1st, 1870.</p> <p>Judgment was demanded for the value of plaintiff’s services from January 1st, 1870, to May 1st, 1870.</p> <p>The defendant, Smith, the only one of the defendants served with process, put in an answer in which he denied that the partnership agreement, referred to in the complaint, had ever been executed on the part of the defendants, Gordon and McMillan, and denied that said agreement was ever legally executed. He admitted that plaintiff entered into the employment of himself and defendant Fellows, and continued so till August 8th, 1868, when he discharged him, and had never since employed him.</p> <p>On the trial, which was before a judge without a jury, it appeared that, on April 29th, 1867, the defendant, Smith, was the lessee, for five years, from May 1st, of No. 15 State street, New York, and the other defendants were engaged in the wholesale grocery and commission business, in the city of New York, under the firm name of Gordon, Fellows & McMillan. On that day (April 29th, 1867), the defendant Fellows, with the knowledge and consent of the defendant Cook, but without the knowledge or consent of the defendants Gordon and McMillan, entered into an agreement with the defendant Smith (in which he assumed to act for the firm of Gordon, Fellows & McMillan, and signed the firm name), which set forth that Smith and Gordon, Fellows and McMillan became partners in the storage business, at No. 15 State street, for five years from May 1st, 1867. The agreement also contained a clause providing that the plaintiff should be employed as superintendent and storekeeper, at four dollars per day, Sundays included.</p> <p>Plaintiff was employed as superintendent and storekeeper, at 15 State street, until August, 1868, when he was formally discharged by Smith, but refused to go.</p> <p>He continued to remain and perform services, and subsequently sued all the defendants in this action to recover for his • services from August, 1869, to January 1st, 1870. In that suit he claimed to have been employed at the agreed price of four dollars per day. That suit was settled by Smith giving his check for the claim, less a few dollars.</p> <p>After January 1st, 1870, plaintiff continued to go to the store at 15 Front street, and to perform services, although against the wishes of the defendant Smith, and in the interest solely of defendants Fellows and Cook. On February 2d, 1870, however, Smith refused to allow him to be at the store, and locked up and retained the keys of the office which plaintiff had been accustomed to occupy.</p> <p>On these facts, plaintiff had judgment against defendants Smith, Fellows & Cook, for his services from January 1st, 1870, to February 3d, 1870, at the rate of four dollars per day, the judge admitting as evidence of an agreed rate of compensation the proceedings in the former suit, which had been settled, and •in which four dollars per day was claimed as the agreed rate. The judgment was affirmed by the Marine Court at general term, and defendant Smith appealed to this court.</p>

The complaint alleged a sale and delivery by plaintiff to defendant, on divers days between May 8th and August 22d, 1868, of goods for the price of $350 50, and that only $140 thereof had been paid, leaving due $210 50. The answer set up that defendant had bought goods to the amount of $131 only, and bad paid on account $140, being an overpayment df $9, for which he asked judgment. The case was referred, and the evidence appeared as stated in the opinion.

This action was brought by the plaintiff against the defendants, who were stockbrokers, doing business under the name of William Heath & Go., to prevent them from prosecuting an action against him in the State of Vermont, and from selling plaintiff’s property in that State. A motion for a preliminary injunction, made at special term, was denied, and the following opinion rendered, in which the facts are stated.

<p>It is a general principle of the law of agency, that one who procures services to be done for another is not himself chargeable as the debtor, unless he omits to make known Ms principal, or erroneously supposes that he has authority, or exceeds his authority, or expressly or impliedly engages to be answerable, either by distinctly promising to pay for them if rendered, or by doing or saying something wMch justifies the person who is to perform them, in supposing that that the one who applies to Mm engages to pay therefor.</p> <p>Upon the question as to whom the plaintiff gives credit, where one person orders him to do work for another, the circumstance as to whom the plaintiff charges the work on his books, and to whom he makes out his bill, is most material, and unexplained, is controlling.</p> <p>Where, upon an uncontradicted state of facts, the point involved remains doubtful or upon undisputed facts, inferences may be drawn either way, the question is properly one for the jury, and their finding should be conclusive. But in all such cases, there must be something in the evidence on which to found the conclusion, and whether there is or not is a question of law.</p>

<p>The general rule is that the right of lien, which is in the nature of a pledge, attaches only to property which has come into the actual possession of the bailee, factor or other person who claims the benefit of it. But a merely constructive possession may, in some cases, give a lien, although the actual possession is in another.</p> <p>Thus, where the plaintiff, a commission merchant, accepted a draft drawn on him upon advices from the drawer that he would make a shipment of goods to him to cover the amount, and the drawer shipped goods, with the clear intention on his part of appropriating them to the plaintiff for his security, Held, that the property in the goods passed to the plaintiff upon their shipment, and from that time the plaintiff was in constructive possession, and on their arrival was entitled to the actual possession as against an attaching creditor of the shipper.</p> <p>In the absence of a bill of lading, the intention to vest the property in the goods in the consignee upon the shipment, so as to give him a constructive possession, subject only to the equitable right of stoppage in transitu, may be inferred from other documents, such as receipts or orders, or by the correspondence which has taken place between the parties.</p> <p>A factor having a lien upon goods for the amount of his advances, can, in an action against a creditor of his principal, who has taken the goods under attachment, recover only the value of his special property in the goods. He is not entitled to a judgment for the whole value of the goods.</p>

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment entered on the verdict of a jury at trial term, .upon the direction of a judge. The action was brought by the plaintiff to recover commissions as a broker on effecting a sale of land for defendant.

<p>Appeal by defendant from a judgment of the 7th District Court. The facts are stated in the opinion.</p>

<p>Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment entered on the decision of a judge at trial term-. The facts are stated in the opinion.</p>

<p>On appeal to this court from a judgment rendered in a District Court, the notice of appeal required by § 363 of the Code of Procedure should point out clearly the error complained df, whether in the process, pleadings, proceedings on the trial, or in the rendering of judgment. It is not enough to state generally that the judgment appealed from is against both the law and the evidence, and should have been in favor of the appellants and against the respondents.</p> <p>Where the notice of appeal states no more than this, the judgment will be affirmed, without an examination of the merits.</p>

Appeal by plaintiff from an order of this court made at special term, referring the action to a referee to hear and determine'the issues.

Exceptions to a judge’s charge to the jury ordered to be heard at general term. Action for defendant’s negligence, whereby a piece of the coping of the chimney on defendant’s house fell and injured plaintiff, who was passing by on the sidewalk. On the trial it appeared, by undisputed evidence, that the injury occurred in the following manner : Several of the occupants of defendant’s tenement house, in Mulberry street, were on the roof engaged in beating a carpet.

Appeal by defendant from a judgment of this court, entered on the decision of a judge at trial term. The facts are as follows: James Farley and Evariste Martin were on the first day of July, 1865, copartners under the name of Martin & Farley, and on that day made and indorsed the promissory notes in suit, and delivered the same to the plaintiff.

<p>Appeal by plaintiff from a judgment of this- court entered upon a verdict at trial term; also, appeal from order denying plaintiff’s motion for a new trial.</p> <p>The action was brought upon a promissory note for $500, dated July 1st, 1867, at six months, made by defendant Homan, and indorsed by defendant Wernz. The answer alleged that this note and another of like amount were given by defendant Homan upon the purchase by him of the interest of the plaintiff in the copartnership formerly existing between them; that the plaintiff, as part consideration of the notes, agreed that he would not engage in the same business again in the city of New Tort, and the breach of such agreement; that plaintiff obtained the notes by fraud.</p> <p>The first note was paid before this suit was brought.</p>

<p>Where a person has been induced to enter into a contract by fraud, he may, upon discovering the fraud, elect, either to rescind the contract and sue in tort, or to waive the tort and affirm the contract, but having once made his election, he is bound by it, especially where the rights of third parties have intervened.</p> <p>The fact that the fraud used to induce a party to make a contract constitutes a felony,-does not prevent the party deceived from affirming the contract; as a waiver of a tort in a civil action would not prejudice a criminal action for the felony.</p> <p>The plaintiff having been induced to make a loan on call on the security of forged bonds, after discovering the fraud, sued on the contract, and attached the money standing to the credit of the borrowers in the bank in which they had deposited the proceeds of the fraudulent loan, but proceedings in bankruptcy having been taken against the defendants in that suit, he discontinued and brought an action in tort against the bankrupt and his assignee in bankruptcy, claiming that the money in the hands of the bank was the identical money obtained from him by fraud, and that he was entitled to it as owner. Held, that by the proceedings in the first suit he had elected to affirm the contract and was barred from bringing a second suit founded in tort.</p>

Appeal by defendant from a judgment of this court entered on a verdict at trial term. Replevin for 91 bags of-rice, which defendant claimed to hold by virtue of a lien for cleaning a cargo of rice, of which said 91 bags formed a part. On September 13th, 1867, plaintiffs, through O’Shaughnessy, their broker, purchased of one Hubbell 301 bags of rice (of which the quantity in question formed a part), which were in the possession of defendant, a cleaner of rice.

Appeax by defendants from a judgment of this court entered upon the verdict of a jury at trial term. Action for negligence. The facts are stated in the opinion.

<p>A suit in this court, commenced in December, 1865, by a plaintiff resident in this State, against a defendant also then resident here, but who, before the final determination thereof became a resident of another State; Reid, not removable to the United States Circuit Court, under the acts of Congress of July 27th, 1866, or of March 2d, 1867, defendant being a resident of this State at the time of the passage of those acts.</p> <p>Where an application to remove a cause to the U. S. Circuit Court was founded upon the provisions of the act of 1867, Reid, that, although the application must be denied under that act, still where the petition contained the necessary allegations the application might be granted under the act of 1866.</p> <p>Under a joint petition by two defendants, the application may, under the act of 1866, be granted as to one defendant and denied as to the other.</p> <p>Where a cause has been tried, but the judgment reversed on appeal and a new trial ordered, an application made before the new trial, is made “ before trial or final hearing,” within the meaning of the act.</p>

Appeal by defendants from a judgment of this court entered upon the report of a referee. The facts are stated in the opinion.

Appeal by defendants from a judgment entered on the decision of a judge at special term. The facts are stated in the opinion. On the trial the following opinion was delivered: Daly, Ch. J.—The complaint was against the defendants upon their common law liability. The defendants in their answer set up the receipt or hill of lading as the contract under which they agreed to transport the property.

<p>A United States treasury note issued under the act of Congress of March 3d, 1866 (13 U. S. Statutes at Large, 468), in which the name of .the payee had not. been filled in, was endorsed on the back by the owner, a national bank, as follows: “Pay to the Secretary of the Treasury for conversion. A. B., cashier.” It was given to a common carrier to be transported to the treasury. While on the way, it was stolen from the common carrier, the endorsement on the back erased by the thief, and the note sold to a purchaser in good faith and for full value. Held, that the purchaser obtained a good title to the note.</p> <p>Negotiable notes issued by the United States Government are subject to the-common law rules applicable to commercial paper. Where in such a note no-payee is named, it is payable to any bona fide holder, before maturity, who may insert his own name, or that of any other person, as payee.</p>

Appeal by defendants from a judgment of this court entered on the report of a referee. The facts are stated in the opinion.

Appeal by defendant from a judgment of this court entered on the verdict of a jury, found by direction of the court at' trial term. The action was on an account stated by plaintiffs, who were stock'brokers, under the firm name of Upton & Titus, and who had bought stocks and advanced money to defendant. This account had been signed and acknowledged to be correct by defendant.

Appeal by plaintiff from a judgment of this court, entered upon the direction of a judge at trial term, dismissing the complaint.

<p>The indorsement of plaintiffs to certain checks payable to their order, and belonging to them, was forged, and upon such forged indorsement the checks were, in good faith, cashed by A., who, for value, indorsed them to B., who deposited them in his bank 0., which collected them, and credited B. with the proceeds. Held, that plaintiffs might sue A., B. and 0. for a joint conversion of the checks, without making a demand.</p> <p>A return'of the paid and canceled checks to the plaintiffs, after suit brought, will not constitute a defense to the action.</p> <p>The plaintiffs’ ownership of the checks in such an action, may be shown by the fact of the checks being made payable to their order, and by proof of the transactions in which the checks were given.</p>

<p>Exceptions to a judge’s charge, directing a verdict for plaintiffs, ordered to be heard at general term.</p> <p>Action for the conversion by the defendants, The Mechanics’ National Bank and the Camden & Amboy Railroad and Transportation Company, of five checks drawn to the order of and belonging to the plaintiffs.</p> <p>On the trial it appeared that the checks, with the forged indorsements, had been in good faith received by the Camden & Amboy R. R. and Transportation Co., who had deposited them with the Mechanics’ Bank, and by whom they had been collected.</p> <p>Defendants moved for a dismissal of the complaint, on the grounds : 1. That there was no evidence to charge the defendants jointly or severally with a wrongful conversion of the checks; and, 2. That the evidence failed to show that the plaintiffs were ever the owners, or were ever entitled to the possession of the checks.</p> <p>The other facts necessary to an understanding of the case are stated in the opinion.</p>

The plaintiff recovered a judgment against the defendant in the N. Y. Marine Court, which on appeal to the general term of that court was affirmed. On further appeal to this court the judgment was reversed.

Appeal by defendants from a judgment entered on the verdict of a jury at trial term. Action for negligence in sending a telegraph message. On the trial the plaintiffs put in evidence the correspondence referred to in the opinion, and to its admission an exception was taken by the defendants. The material parts of the letter of the plaintiffs, containing their statement of their claim against the company is as follows : Pittsburgh, March 13thy 1865. Jambs McKays, Esq., .

<p>•Since the act of 1860 (Laws of I860, p. 15V, ch. 90), by which a married woman is authorized to “ carry on any trade or business * * * on. her sole and separate account,” a married woman who engages in business on her own account is subject to all the regular rules of business in regard to negotiable paper given by her; and is responsible on such paper, although it is not given for the benefit of her separate estate, nor is specially made a charge thereon.</p> <p>"Where the defendant, a married woman, was engaged in business on her own account, a check made by her agent, regularly authorized for that purpose, although made without consideration, in a matter unconnected with her business, and for the mere accommodation of the payee, yet Held, to be good against her in the hands of a bona fide holder for value, to whom it was indorsed before maturity.</p>

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on a decision of a judge at trial term. The facts are stated in the opinion.

Appeal by defendants from a decree ordering the reforming of a policy of insurance, and also from a judgment for the amount due the plaintiff under said policy, as reformed.

<p>Appeal by defendant from a judgment of the Sixth Judicial District Court.</p> <p>The facts are stated in the opinion.</p>

<p>The plaintiff entrusted a picture belonging to him to A. to deliver to B. & Co., for exhibition and sale. A. took the picture to B. & Co., and obtained a receipt for it in his own name, and pledged the receipt to defendant to secure a loan of money, and the defendant, by means of the receipt, obtained the picture from B. & Co. Held, that A. had not been entrusted with the possession of the picture for sale within the meaning of the factors’ act(L. 1830, p. 203, ch. 1Y9, § 3), and that the defendant could not hold it as security for his advances made on the faith of the receipt. ’</p> <p>In an action for the conversion of an article, the commercial or market value of which is not clearly ascertainable, the court will not disturb a judgment for damages against the wrongdoer based upon the owner’s estimate of the value of the article, the wrongdoer having had knowledge of the plaintiff’s estimation of the value.</p>

Appeal by defendant from an order made at special term, denying a motion to vacate an injunction restraining the defendant from engaging to appear and play in any other theatre than that of the plaintiff during the time mentioned in a certain memorandum of agreement entered into between the defendant and Imre Kiralfy.* Also, appeal from an order denying a motion to vacate a writ of ne exeat against the defendant.

Appeal by plaintiff from a judgment entered by direction of the court at trial term, dismissing the complaint. The facts are as follows: The defendants were the lessees of the premises, 645, and the three upper floors of 647, Broadway, iñ New York city, holding under a lease whose provisions are stated in the opinion.

Appeal by plaintiff from a judgment of the general term of the Marine Court, affirming a judgment entered on the report of a referee. The facts are as follows : On March 20th, 1862, the defendants were indebted to the plaintiff in about the sum of $609 75. Of this amount $206 22 was for the balance due on two overdue notes of defendants, Feld by plaintiff, and the remainder of the indebtedness was a balance of a book account for goods sold.

Appeal by plaintiffs from a judgment of the 7th District Court, dismissing the complaint. The facts are stated in the opinion.

Appeal by defendant from a judgment entered on the verdict of a jury. This was an action for a limited divorce tried at special term in January, 1871, before a judge and'jury. On the trial the plaintiff was offered as a witness in her own behalf, and testified as to acts of cruelty on the part of defendant.

Appeal by the defendants from a judgment of the general term of the Marine Court, affirming a judgment entered on the-verdict of a jury at trial term. Action for negligence. The facts are stated in the opinion.

Appeal by plaintiff from a judgment entered on the verdict of a jury. Action for goods sold and delivered. Defense, a breach of warranty as to the quality of the goods sold, by which they were rendered totally useless to the defendants. Defendants had a verdict in their favor. The facts are stated in the opinion.

<p>¿By the terms of a policy of life insurance it was provided that the proposals, answers and declarations of the assured should be made a part of it “ as fully as if they had been therein recited,” and it was further declared in the policy that if they should be found in any respect false or fraudulent, that then the policy should be null and void. In the series of questions thus annexed to and forming part of the policy, was one propounding the inquiry whether the assured had •ever had certain specified diseases, and if so how long, and to what extent, among which were enumerated spitting of blood and diseases of the lungs, to which the assured answered in writing, “ No.” At the end of the series of questions was a declaration subscribed by the assured, stating that the answers given were correct and true, and that the statements made by him should form the basis of the contract of insurance, and also that any untrue or fraudulent answer or any suppression of facts in regard to his health should render the policy null and void. The insurance was effected in January, 1861?. It appeared that in November, 1865, he had a slight hemorrhage which lasted on and off for two days. That in March, 1866, he had another hemorrhage, which lasted nearly ten days, during which he raised blood twice a day—morning and evening— and was from the effects of this hemorrhage confined to his bed several weeks, and it was about a month before he was able to go out in the open air. That during the first hemorrhage he spit blood more than ten times, and that he thought the spitting of blood during both attacks came from his lungs. He had another attack of hemorrhage in August, 1868, and in September, 1869, died' of consumption; Held, that the answer of the assured that he had never had a disease of the lungs or spitting of blood was untrue, and avoided the policy..</p> <p>In an application previously made for an insurance upon his life to another company, the assured had made known to the agent of that company (who was the medical examiner in this application) that he had had two attacks of spitting of blood; Held, that this did not change the effect of the untrue answer.</p> <p>The answers were warranties, and any one of them being untrue there was a breach of the warranty upon which the insurance was made, and which rendered the policy void.</p> <p>The judge- at the trial charged that the answers were warranties to some extent, and if any answer was untrue and was known to be untrue at the time it was-made, the warranty was broken, and the policy was vitiated; Held, that this was error.</p> <p>The provision in the policy that if the answers, <fce. should be found in any respect false or fraudulent, the policy should he void, was not a waiver or merger of the previous provisions in respect to the truth of the answers, nor prevent them from being warranties.</p> <p>To prove the falsity of a statement it is not necessary to prove that it was knowingly or intentionally false.</p>

<p>Appeal by defendants from a judgment entered on the verdict of a jury.</p> <p>Action on an insurance policy issued on the life of George* Schott, and which policy had been assigned to plaintiff.</p> <p>The facts are stated in the opinion.</p>

This was a controversy submitted without action upon a case made. The plaintiff, as receiver of the North American Fire Ins. Co., claimed to recover of the defendants $2,203 81, with interest from February 13th, 1872, upon the following facts : On August 5th, 1871, the North American Fire Ins.

Appeal, by defendants from a judgment entered on the verdict of a jury. Held: and what was done with the proceeds, are stated in the opinion. The plaintiff had a verdict.

<p>Appeal "by defendants from a judgment of the general term of the Marine Court, affirming a judgment entered on the verdict of a jury.</p> <p>The action was to recover damages for the negligence of the defendants, whereby, as plaintiff was passing along the plank or platform extending from the pier to defendants’ boat, the plank was suddenly withdrawn, and plaintiff precipitated into the water.</p> <p>On the trial, the plaintiff was allowed (against defendants’ objection) to amend his complaint by inserting an allegation that, in consequence of the occurrence, he “ was prevented and incapacitated from attending to his business.” The other facts necessary to an understanding of the case are stated in the opinion.</p>

<p>The term " ship’s husband ” is used to designate the person who, in the home port, where the vessel belongs, does what the owner would otherwise do—obtains a cargo for her and attends to everything essential to the due prosecution of the voyage for which the cargo has been obtained. Whilst the ship is abroad the master is empowered to do all that is essential during the voyage. He may be said to be then the ship’s husband, except so far as he maybe limited by his instructions, and if the duties which he would otherwise discharge in a foreign port with respect to the vessel, such as entering her at the customs, collecting-the freight, obtaining a cargo and clearing the vessel, are, by the owners’ directions entrusted to a person at that port, then she is consigned to that person, and he is properly called the “ consignee,”</p> <p>Such a person is the one meant in the act to amend the pilot laws (Laws of 1867, p. 502, ch. 243), which provides that pilotage shall be paid by the master, “ owners or consignees,” where the master refuses to take a pilot upon coming into the port of Hew York by way of Sandy Hook.</p> <p>It being provided by the original act of 1853 (Laws of 1853, p. 925, ch. 467, § 18), to which the act of 1857 is amendatory, that the pilotage shall be payable by the master, owner, consignee or agent clearing the vessel. The term " consignee,” as there used, means the consignee of the vessel, and not of the goods, and the term “ consignees" in the amendatory act must be taken to mean those upon whom, under that designation, the duty of paying pilotage was previously imposed.</p> <p>In an action under the act of IBS'?, for refusing to take a pilot on board, it appeared that the defendant was a ship broker who had procured a cargo for the vessel and cleared her at the custom house for Baracoa, where she took in a cargo, and that upon returning here with a cargo consigned to a third person, the captain reported to the defendant, who collected the freight and paid the bills for the vessel and cleared her for another voyage. Upon coming into Hew York on her return from Baracoa, she refused a pilot; Held, that the defendant was the consignee within the meaning of the act, and the action was properly brought against him.</p> <p>The act of IBS'? is to be liberally construed, since it is a remedial statute, both in the fact that it is amendatory of a defect in an existing law, and that the statute of which it is amendatory, is in the nature of a public regulation for the protection of life and property, which may be put in peril from the want of proper precaution in navigating vessels entering the harbor of Hew York. Such a statute is to be liberally and beneficially construed and everything is to be done in advancement of the remedy, that can be done, consistently with any construction that can be put upon it.</p>

Appeal by defendants from an order declaring frivolous-certain defenses set up in the answer, and ordering judgment thereon. .The facts are stated in the opinion.

Appeal by defendant from a judgment entered on a verdict at trial term. Action for negligence. The facts are stated in the opinion.

<p>By the district court act, as amended in 1862 (L. 1862, ch. 484, § 3), which provides that the rules and regulations of the Supreme Court shall apply to the District Courts as far as they can be made applicable, a subsequent action cannot be brought in a District Court while the costs, due in a prior action for the same subjeebmatter, which action has been discontinued with costs, remain unpaid.</p>

Appeal by defendants from a judgment of the general term of the Marine Court, affirming a judgment entered on .the verdict of a jury. The facts are stated in the opinion.

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment entered on the verdict of a jury. The facts are stated in the opinion.

Appeal by plaintiff from a judgment entered on the decision of a judge at special term. The judge, at the trial, found as matters of fact, that about December 3d, 1869, Austin Myres (plaintiff’s testator) and the defendant were the owners of the New Jersey Arms and Ordnance Company at Trenton, New Jersey, the defendant owning nine-sixteenths .and Myres seven-sixteenths.

Appeal by plaintiffs from a judgment of the 7th District Court. Action against the defendant, master of the steamboat Daniel Drew, to recover $50 as a penalty for throwing ashes and cinders into the waters of the port of New York. The facts proved on the trial were, that on August 15th, 1872, cinders and ashes were thrown from the steamboat Daniel Drew, of which the defendant was master, into the water of the port of New York.

Appeal by plaintiff from a judgment entered upon the decision of a judge at trial term.

<p>In the consideration of the question, whether certain articles, which in their na- ' ture are chattels, have become part of the freehold by mere attachment and ordinary use therewith, for the general purpose to which it is adapted and employed; the intention of the owner, evidenced by according acts, is sufficient to so appropriate and convert them into fixtures annexed to the freehold, that they will pass by deed to a grantee.</p> <p>During the negotiations for the sale of a house, plaintiff (the owner) as an inducement to defendant to purchase, told him that the house was complete and ready for him to move into, and that all he had to do was to walk in anil light the gas, as it was complete. Defendant purchased the house and plaintiff brought an action to recover the gas fixtures, on the ground that they did not pass by a deed of the house; Held, that plaintiff’s statement made during the negotiation for and as an inducement to the purchase, was sufficient evidence that the gas fixtures had been attached to the house to enhance the general value of the estate, and not for its temporary use, and that therefore they became attached to the freehold and passed by a deed of it.</p>

Case agreed upon and submitted in a controversy without action.

Appeal by plaintiffs from a judgment of the general term of the Marine Court affirming a judgment, entered by direction of a judge at trial term, dismissing the complaint.

<p>Appeal by plaintiff from a judgment of the First District Court.</p> <p>The action was brought to recover the freight and demur-rage bn a cargo of coal, shipped by the defendants, the freight being stated in the bill of lading to be “ forty cents per ton, and $4 per day after six lay days.”</p> <p>On the trial it was admitted that the cargo had been duly delivered, and that part of the freight and demurrage were still due, and that from the commencement of the demurrage days to the receipt of the cargo there were six Sundays. For these Sundays plaintiff claimed demurrage should be paid. This claim defendants disputed, and were sustained by the justice, who gave judgment for the plaintiff for the freight and demur-rage claimed, less $24, the demurrage for the six Sundays.</p>

Appeal by defendant from a judgment entered on the verdict of a jury at trial term. Action on a promissory note for $2,500, at four months, dated December 6th, 1870, made by Lewis E. Smith & Co. to the order of the defendant Barnes, and indorsed by him for the accommodation of the makers, by whom it was transferred before maturity to one James Appleby. The defense relied upon at the trial was usury in the discounting of the note by Appleby.

Appeal by defendant from a judgment entered on the decision of a judge at special term. The action was brought by .the plaintiffs, assignees of a lease of a building owned by the defendant, which had been injured by fire, to compel the specific performance of a covenant in the lease, to repair all damages caused by fire.

Appeal by defendant from a judgment entered on the decision of a judge at special term.

Appeal by defendant from a judgment of the First District Court, entered in favor of the plaintiff, on the verdict of a jury. The plaintiff, by an instrument in writing, leased to the defendant a store or office in West Broadway, in this city, for the term of two years and eleven months, and this action was brought by him to recover one month’s rent under that lease.

<p>A coastwise sea-going steam vessel not sailing under register, within the meaning of § 51 of the act of Congress of February 28th, 1871, in relation to pilotage for steam vessels, is one that is enrolled and licensed for the coasting trade in the manner provided by law, whose license is renewable annually; a vessel sailing from one part of the coast of the United States to another, or which is employed in the whale or coast fisheries.</p> <p>The casual circumstance of such a vessel's stopping at a foreign port from stress of weather or other justifiable cause, not in the way of business or traffic, does not affect her specific character as a “ coastwise sea-going steam vessel,” under the United States act.</p> <p>Proof that plaintiff, ten miles from Sandy Hook, offered his services as pilot, and that at that time there was no pilot on board of the vessel, Held, sufficient to show that plaintiff was the first pilot speaking or offering his services to the vessel.</p>

Appeal by plaintiffs from an order setting aside an execution on the ground that it had been issued pending a stay created by an appeal. Plaintiffs having recovered a judgment in the Eighth District Court, the defendant appealed and gave security to secure a stay of proceedings pending the appeal.

Appeal by defendants from a judgment of this court, entered on the verdict of a jury. The suit was originally commenced in the 8th District Court, where a summons was issued for $250, but the amount claimed in the complaint was $260, besides interest. After issue joined, the cause was removed to this court, where it was tried, and a verdict fur the plaintiffs rendered for $260 and interest.

Appeal by defendants from a judgment entered on the verdict of a jury at trial term. This was the second trial of the cause. On the first trial, the only evidence of the contract under which the goods were carried was the bills of lading. The plaintiffs had a verdict, and the judgment entered thereon was affirmed by this court at general term (reported in 2 Daly, 454), but reversed by the Court of Appeals (reported in 46 N. Y. 271).

Appeal by defendants from a judgment entered upon the verdict of a jury. On the 9th day of April, 1870, the plaintiff entered one of the defendants’ cars for the purpose of going down to '48th street, where she lived. A small child belonging to her employer was in her charge at the time, and she took a seat in the rear end of the car, with the child in her arms.

Appeal by plaintiff from a judgment of the Sixth District Court, dismissing the complaint. The action was brought to recover the value of a package of jewelry which was delivered to the defendants by the plaintiff, on the 16th day of November, 1870, for the purpose of being carried to Richmond, Va., and there delivered to one J. L. Swift, care of Grlazebrook & Thomas, on payment of the price of the goods.

The defendant moved, at the Special Term, to amend his answer by setting up anew and additional defense. The plaintiff insisted that the court had-no power to allow it,/and relied upon the decision of the general term of the Superibr Court, in the case of Woodruff v. Dickie (31 How. Pr. 164; 5 Robt. 619).

Motion to amend a commission to take testimony on the-part of the defendants, and to vacate the return to a commission issued by the plaintiff. The commission issued on the part of the defendants was directed to R. B. Foster, of Brazos, Texas, and was, witnessed in the name of the Chief Justice of the court, and was signed by the clerk.

Motion to vacate an injunction. This action was brought against the Western Union Telegraph Oompany, the Anglo-American Telegraph Company Limited, and Le Société du Cable Transatlantique Frangais Limité, to compel them to receive and transmit messages tendered to them by the plaintiffs.

Action tried before a judge at trial term, without a jury. The suit was brought by the plaintiffs for the conversion by the defendant of a quantity of coal. On the trial, the facts, as agreed upon by a stipulation between the parties, were as follows: The plaintiffs had insured •a cargo of coal, amounting to 125 tons, which was being carried in a canal-boat from Port Johnson in New Jersey to Glen Cove in New York.

This was an action to recover damages for a breach of contract to purchase real estate. The complaint alleged that on April 4th, I860, an agreement was made between the plaintiff and defendant, by which the defendant agreed to purchase certain real estate of which the plaintiff was the owner. That this agreement was made through one Findlay, a broker, who thereupon became entitled to receive from the plaintiff the sum of $500 as commissions.