Volume 4 — E.D. Smith's Common Pleas Reports

The defendant was the director of the opera, in the city of New York, and employed the plaintiff as a vocalist. The contract of employment was in writing.

This was an appeal by the plaintiff from a judgment of nonsuit, in an action for an alleged false imprisonment. It appeared that the present plaintiff had been arrested at the instance of the present defendant, and held to bail in the sum of $2,000, under a warrant of Mr. Justice Mitchell, of' the Supreme Court, in a suit for the breach of a contract to enter into a copartnership.

The plaintiff,' Ellert, having recovered a judgment in the Marine Court, upon the verdict of a jury, in an action for slander, the defendant appealed to this court, where “the judgment was reversed with costs.” The appellant applied to this court, at a special term, for an order directing the clerk to re-adjust the costs, as taxed by him, and allow the defendant the costs wMch he would have recovered m the Marine Court had the judgment in that court been given in his favor.

Upon the hearing of this appeal, which was brought to review a judgment of the Marine Court, the parties agreed substantially upon the following statement of facts, so far as the same extends, made by the defendant’s counsel: “ The defendant, Kicolay, was an auctioneer, dealing principally in stocks and bonds. “ On the sixth day of April, 1854, he held a sale at the Merchants’ Exchange, of securities, which had been previously advertised in all the newspapers, and among…

Action commenced by summons, in the Sixth District Court, for medical attendance. On the return day, a friend of the defendant appeared and stated to the justice that the defendant had requested him to attend and get the case adjourned. The plaintiff objected, and the court proceeded with the cause, when the defendant’s friend pleaded a set off, but produced no testimony.

Action in the Third District Court, for injuries to the building of the defendant, caused by imperfections in a water leader and gutter upon the adjoining premises, which were owned by the plaintiff, and by Mm leased to tenants in possession. The court below gave judgment for the defendant, upon the ground that the liability was on the part, not of the landlord, but of the tenants.

<p>This was an appeal by the defendant from a judgment for $329 50, rendered in the Marine Court, in favor of the plaintiff. The nature of the action, the facts disclosed at the trial, and the grounds of the appeal, appear distinctly in the opinion.</p>

This was a motion made by the defendant, Stagg,under the circumstances and for the object stated in the opinion, to alter the entry of the judgment rendered by this court, upon an appeal presented by the defendant, Beach, alone, in an action for libel. The decision upon that appeal is reported in 3 E. D. Smith, 337.

<p>In an action for work, labor and materials, where the plaintiff claims for work done after an alleged settlement of all previous accounts, which settlement the defendant denies, the court is not at liberty to assume the fact of a settlement, and on that ground reject an offer of the defendant to prove anterior transactions, unless the proof of such settlement be so clear and uncontradicted that the court will hold it legally conclusive.</p> <p>Proof of a large prior indebtedness, by the plaintiff to the defendant, which does not appear to have been paid or satisfied, is a circumstance which might influence the finding of a jury upon the question, whether an alleged final settlement was made which did not provide for its payment.</p> <p>The court should receive the evidence and instruct the jury, that if they nevertheless find that a settlement has taken place, the defendant is concluded thereby.</p> <p>Although, on appeal, the court may be of opinion, that evidence which has been improperly rejected in the court below, would not have changed the verdict of the jury, yet, if it might have influenced their minds in considering the facts, and was competent; this court is not at liberty to overlook the erroneous rejection and affirm the judgment.</p> <p>The proceedings below should be laid before the appellate court, in full; and while the return is imperfect, the parties should not bring an appeal to a hearing.</p>

This action was commenced in the Third District Court, by a summons issued against “ Lawrence Archer,” as defendant, for the wrongful detention and conversion of certain household furniture. The parties appeared by their respective counsel, and the counsel for the defence pleaded a general denial.

•The defendant having been served with a summons issued from the Second Distinct Court, delivered it to his attorney, and requested him to appear, answer the complaint and adjourn the cause. The latter promised to attend, but being under the necessity of leaving the city, he entrusted the summons to another attorney. On the return day, the latter discovering that he had lost the key of his desk, wherein he had placed the summons, proceeded to the Marine Court.

<p>This was an appeal by the defendant, from a judgment rendered in the Second District Court, in favor of the plaintiff, for services performed at the Isthmus of Panama. The facts are fully detailed in the opinion.</p>

<p>Under the former system of pleading, a special plea admitted the matters contained in the declaration, and the rule still applies to pleadings under the Code.</p> <p>The provision, that allegations in the complaint not denied in the answer must be deemed admitted, applies to the district courts.</p> <p>Accordingly, where the complaint in a district court was for damages to the plaintiff’s property, and the defendant answered by simply averring a set off; held, error to order a nonsuit, no evidence having been offered by either party.</p>

<p>The complaint in this action was filed against the defendants as common earners, claiming damages to the amount of $500, for the loss of a trunk and its contents. The defendants were the owners of the steamer “ Hendrick Hudson,” whereon one Jeannette T. Hiller took passage from New York to Albany. The lost articles were taken on board as the ordinary baggage of the passenger^ without extra charge, but were proved, on the trial of the cause, to have consisted, in part, of silver ware, in household use, valued at about $100, in addition to wearing apparel. The Marine Court, in giving judgment for the plaintiff, included the valuation of the silver ware.</p> <p>The suit was prosecuted by the plaintiff, as the assignee of the cause of action. The assignment was in the following form:</p> <p>“For value received, I, Jeannette T. Miller, assign all my claim in the above mentioned articles, and all claims which I have against the owners of the steamboat 1 Hendrick Hudson,’ for the loss of trunk and articles, (which, with an estimated valuation attached to each article, were particularly enumerated,) to Philip A. Bell, of the city of New York. Dated New York, October 27,1853.</p> <p>“ Jeannette T. Miller.</p> <p>“ Signed and sealed in the presence of “ D. W. McDonald.”</p> <p>The instrument was not actually sealed. Its execution and delivery were proved by the subscribing witness, who also testified that the assignor gave a receipt for $20 as the consideration.</p> <p>The plaintiff’s case was sustained principally by the assignor, who, upon cross examination, testified that she “got $20 from the plaintiff for the assignmentthat she returned the money to him as a loan, and took his word for the return ; “ I do not depend upon his honor for the return of any portion of his recovery“ I assigned the claim because I had lost all hopes of getting it“ I did not expect to get it any better for assigning it.” She was advised by her counsel, in the plaintiff’s presence, that if she assigned the claim she could be a witness. “ It was in consequence of this advice that I assigned the claim“ I thought it would be better to risk that sum“ there is an understanding that if a recovery is had, I shall be benefited—that I might recover some of the property'—the understanding was with Mr. Bell, the plaintiff —he said there might be a possibility of recovering something—that is all I can recollect;” “ I have really forgotten what was said at or about the time of executing the assignment.” At the close of the examination of this witness, the counsel for the defendants moved to strike out her testimony, upon the grounds—1, that the instrument of assignment was insufficient in itself; 2, that the witness was shown, in her cross examination, to be, in fact, the person for whose immediate benefit the action was instituted, and therefore incompetent. The motion was denied and an exception noted.</p> <p>As already intimated, the court awarded judgment for the plaintiff. The defendants appealed.</p> <p>Grounds of appeal other than those arising upon the above facts were urged by the appellants; but, as the case was determined upon these two points, it is unnecessary to extend the statement.</p>

Tub parties resided in a tenement house, the plaintiff having rooms in a story above those occupied by the defendant. The action was instituted to recover damages for serious injuries sustained by the plaintiff’s child, aged three years, from the bite of a dog kept by the defendant in one of his apartments. From the testimony produced by the defendant, it appeared that the dog was kept chained in the room, and that the plaintiff and his family had knowledge thereof.

This action was instituted to recover damages for the wrongful detention and conversion of goods.

<p>A defendant in the Marine Court is not, as a matter of right, entitled to more than one adjournment, on the ground that he cannot safely proceed to trial for the want of a material witness. (2 Rev. Laws, p. 387, § 127.)</p> <p>A motion to adjourn, for the want of material evidence, may properly be denied, when founded upon an affidavit which is not entitled, and which also fails to show in the body of the affidavit, either by naming the parties, or otherwise, in what action the same is made.</p> <p>The Marine Court may exercise a discretion in respect to adjournments for such a cause, and may impose terms. (Sess. Laws of 1852, p. 649, § 11.)</p> <p>Accordingly, as a condition of granting an adjournment, the justice may require the party to disclose what it is intended to prove by the absent witness.</p>

Actioh upon a charter party, commenced by the special assignee of the master of the brig “ Toledo,” for the recovery of demurrage from the charterers.

The “North Star,” running from New York to Aspinwall, and the “ Uncle Sam,” running from Panama to San Francisco, constituted the “Independent Line” of California steamships. One Cross was the common agent of both steamers and the proprietor of the first, while the defendant was the proprietor of the second.

Review of a judgment of the Marine Court in favor of the defendant against the plaintiff, in an action hy the last endorsee against the first endorser of a promissory note. The plaintiff urged a single ground of appeal, founded upon his exception to a ruling at the trial, admitting the defendant as a witness in his own hehalf.

<p>This was an appeal by the defendant from a judgment rendered against him as the maker of a promissory note. The opinion states the case.</p>

Appeal by the defendants from a judgment of the Fourth District Court, in favor of the plaintiff. The material facts, so far as disclosed in the return, appear in the opinion.

This action was brought by the assignee of a claim against innkeepers to recover money lost under the following circumstances : One Hugh Rose, of Charleston, South Carolina, .became a guest at the Metropolitan hotel, in the city of New York, of wMch the defendants were the proprietors. On reaching the hotel, he made the usual entry of his name in a book at the office, and a room was assigned to him, of which he received the key.

<p>The complaint in this action charged that the defendant had enticed away the plaintiff’s wife from her husband’s house in the city of New York, and had detained and harbored her at the defendant’s residence in Brooklyn.</p> <p>The answer put in a general and specific denial of the allegations in the complaint.</p> <p>At the trial, the plaintiff produced evidence of cohabitation, general reputation and acknowledgment by himself and the woman in question, and it appeared that both had held themselves out as man and wife. It was also shown that the defendant had spoken of her as married to the plaintiff.</p> <p>The defendant moved for a nonsuit, on the ground that no direct proof of an actual marriage had been introduced. The motion was denied and the defendant excepted.</p> <p>Numerous witnesses were sworn upon either side, relative to the facts and circumstances of the act with which the defendant was charged. To disprove the allegation of marriage, the defendant called Catharine Coombs, otherwise called Catharine Scherpf, the alleged wife. Her testimony was objected to and excluded, on the ground that, jerima facie, she was proved to be the plaintiff’s wife, the judge presiding at the trial remarking, however, that the question of marriage was not taken from the jury, and was to be determined by them upon the evidence in the case.</p> <p>The evidence of the plaintiff tended to prove that his relations with his alleged wife had been happy until, after years of domestic peace, she was induced by the defendant to reside with him; and there was testimony that a spirit of malevolence had been manifested by the defendant against the plaintiff. On the other hand, there vras evidence of aversion to the plaintiff on the part of the alleged wife. It was said that she had sought the defendant’s dwelling as a boarding house, in order, voluntarily, to live apart from her reputed husband.</p> <p>The situation of the parties indicated moderate resources.</p> <p>A jury found a verdict for the plaintiff, assessing the damages at $10,000. The defendant moved for a new trial upon a case made. The following opinion was filed upon the decision of that motion at a special term:</p> <p>Woodruff, J. A motion is made by the defendant for a new trial herein. Several exceptions were taken by the defendant on the trial, but his counsel rests the present motion upon three grounds:</p> <p>First.—In an action on the case for enticing away the plaintiff’s wife, and detaining and harboring her, &c., the plaintiff must prove an actual marriage. Evidence of circumstances, which warrant a presumption of marriage, and which in general are sufficient to sustain a verdict, are, in this particular case, insufficient.</p> <p>I have carefully reconsidered the arguments presented upon the motion for a nonsuit urged on the trial upon this ground, and more fully discussed upon this motion, and I still entertain the views expressed on the trial.</p> <p>It is admitted that the general rule on this subject is, that evidence of cohabitation, reputation, acknowledgment by the parties, holding themselves out to the world as husband and wife, are a sufficient proof of the fact of marriage.</p> <p>But it is claimed, that as this rule is subject to exceptions, as, for example, that on an indictment for bigamy, the alleged first marriage must be established by proof of actual marriage, and that in actions for crim. eon., the same proof is necessary, so upon similar principles the same proof should be required in this case. The exceptions to the general rule have heretofore been said to be confined to the two cases above mentioned; but the Supreme Court, in Clayton v. Wardell, 5 Barb. S. C. R. 214, held that upon an issue as to the legitimacy of a child, when the actual marriage of its parents was proved, nothing less than evidence of a prior actual marriage of the father should be permitted to establish the illegality of the second.</p> <p>I fully appreciate the propriety of requiring, on the trial of an individual for an alleged crime, the highest evidence which the nature of the case will permit. Not only the presumption in favor of a man’s innocence, but the cautious jealousy with which the law protects the liberty of the citizen, may well forbid a conviction of a crime upon mere presumptions from circumstances—which, though true, are not inconsistent with innocence of the offence charged—when higher evidence may presumptively be given. And it may be that the charge upon which it is sought to bastardize the issue of an actual marriage ought to rest upon the same evidence, not only because the charge imputes to the father the crime of bigamy, but also because the consequences of sustaining this charge are of so grave a character, affecting the issue more seriously than the loss of property, that such presumptions ought not to be entertained. At all events, I do not deem it necessary, for the purposes of this case, to question the correctness of the decision of the Supreme Court.</p> <p>But I am not aware that in any ease, in which the action proceeds merely upon the ground of making compensation for an injury either to a wife, or to a husband through the wife, or for the loss of a wife’s services, any such exception was ever made, nor do I perceive the propriety of such an exception. The trial does not peril the liberty or the life of the defendant. It nuts at hazard no question so serious as legiti•nacy, affecting not merely the inheritance, but the position in society of the issue for life, and it may also be prejudicing their issue after them.</p> <p>But it was ingeniously argued, that the present action imputes crime as truly as an indictment for bigamy, since enticing away a man’s wife was punishable by fine and imprisonment so early as 3d Edward I., and that, therefore, the presumption of innocence should prevail over, or at least should countervail a presumption of marriage, founded on circumstances only; and counsel urge that the rule in actions of crim. con., by which proof of actual marriage is required, supports this view. z</p> <p>I apprehend that this is an erroneous view of the rule. It is not true that when the facts necessary to support the civil action are of a criminal nature, the exception arises, nor is the exception pleaded upon any such grounds. If it were, then, in an action by the husband for loss of service, by reason of an assault and battery of the wife, or trespass by husband and wife for the personal injury, and especially if the assault were with intent to kill, the same necessity of proving actual marriage would exist, for in each of these cases the plaintiff, to sustain the action, proves in fact the commission of an offence, which may be the subject of indictment and punishment by fine and imprisonment.</p> <p>The ground of the exception where it arises is, that the action itself is penal, i. e., in indictments for bigamy, the proceeding involves the liberty of the subject; the object is punishment, and no one shall be subjected to punishment but upon the best evidence the nature of the ease will allow.</p> <p>Hie exception in the action of crim. con. did not, I think, originate in the idea that the presumption of innocence is at least equal to a presumption founded in any circumstances short of actual marriage, but upon the very distinction which I have suggested.</p> <p>The first reported case in which the exception in such an action was recognized, so far as I have been able to discover, was Morris v. Miller, 4 Burr. 2,057, and that case has been ever since followed. In that case Lord Mansfield does not place the rule that an actual marriage must he proved on the ground that the facts alleged impute crime, but upon the dis tinct ground that it was a sort of criminal action; that there was no other way of punishing this crime at the common law.</p> <p>The action itself is therefore peculiar, and the exception is stated in that case to apply to no other action which is in form civil; and in Birt v. Barlow, Douglass, 171, Lord Mansfield expressly places the exception upon this ground. He says, “An action for crim. con. has a mixture of penal prosecution, and that such an action is the only civil case where it is necessary to prove an actual marriage.”</p> <p>I might suggest reasons of public policy, reasons founded in the great inconvenience and oftentimes the impossibility of furnishing proof of actual marriage at a period in which migration is so prominent a characteristic of the age, and especially in a state where the law recognizes the validity of a marriage resting in contract between the parties, unattended with any forms, ceremonies or solemnities, and where registration in any form is not required, which to my mind forbid the extension of the rule requiring such proof to new cases; and I am by no means inclined so to extend it in favor of one who voluntarily invades his neighbor’s household to seduce an acknowledged wife from her allegiance, and by such extension to deliver him from his liability to make the husband 'just compensation.</p> <p>- 'Second.'—The defendant insists that the judge erred on the trial in excluding the alleged wife, when offered by the defendant as a witness to prove that she was not, in fact, the wife of the plaintiff.</p> <p>The rule that a wife is not competent to testify against her husband is not questioned, but it is urged that when the question, whether the proposed witness is a wife or not, is the very question upon which the jury are to pass, she is competent. In other words, that the court cannot say she is the wife, and so exclude her, because that is deciding in advance the very question of fact which should be left to the jury.</p> <p>A plausible answer to the defendant’s argument, though perhaps liable to similar, yet to no greater criticism, may be stated thus: If the proofs, without her testimony, do establish the marriage, then the jury will so find, and the witness was in fact incompetent. But if the plaintiff’s proofs do not establish the marriage, then the jury will so find, and the defendant must have a verdict. So that to allow her to testify is to assume that no marriage is proved, and if that be assumed by the court, then the plaintiff should be nonsuited, and no evidence from the defendant was necessary. While to exclude her testimony is only to say, that the court deems the marriage prima,facie established. If the jury should so find, then the exclusion is clearly proper; if the jury do not so find, they, the exclusion works no prejudice, since the defendant has a verdict.</p> <p>The true ground for rejecting her testimony, however, is not involved in either of these syllogistic processes of reasoning.</p> <p>These counter propositions may, however, be useful to a true understanding of the rule. They both proceed upon the idea that the court may indulge in an assumption on the subject, although the assumption that she is a wife would perhaps be shown to be false, if the witness were permitted to explain her seeming incompetency, and the assumption that she is not a wife might be shown to be false by the verdict.</p> <p>The defendant has no right to call upon the court to receive an offer which places them in any such position, or exposes their ruling to any such absurdity in its results. It is rather to be said, that when the competency of the witness depends upon the very fact in issue, the witness is never competent.. That competency is in doubt by the very state of the case, and there is no mode of removing the doubt but by the verdict. If the plaintiff has given evidence which is prima fade sufficient, the witness is incompetent upon the proofs given. If the plaintiff has not given such proofs, he should be non-suited. In neither case is the examination of the witness by the defendant proper. The embarrassment or hardship, if any, results from the very nature of the case, and the -party who offers the witness must bear the consequences of a difficulty that cannot be overcome.</p> <p>In the present case, the plaintiff had shown not only cohabitation, general reputation, the holding out of each other by the parties to their friends and neighbors, and the world, as husband and wife, the adoption, by the alleged wife, of the husband’s name, and this during a long series of years, but had also shown repeated admissions by the defendant himself that they were husband and wife. I cannot doubt that this was sufficient to exclude her testimony.</p> <p>It is no unusual thing that the court are required, in the progress of a trial, in ruling upon the admissibility of evidence, to infer and say that facts are proved, as, for example, that a witness offered is interested, or that a paper is lost, or that the execution of an instrument is established, and yet these inferences may and often do involve the very questions upon which the jury are to pass. In such cases the ruling by the court is, in a sense, provisional only; it is founded upon what the court deem prima facie proof; and it is the defendant, in a case like the present, who calls upon the court to make an assumption, and that in the face of such prima fade proof. He offers the witness. The law upon the proofs already given declares the alleged wife, prima facie, incompetent, and the defendant now asks the court to assume that she is not the wife, and so receive her.</p> <p>I apprehend he has no right, as a matter of law, to require the court to make any assumption, but just the inference from the case as it there stands. So long as any rules touching the admissibility of evidence exist, they can only be administered by requiring the court to pass upon just such questions as these, without any merely hypothetical assumptions, and to dispose of them upon the evidence appearing in the casg at the time when the testimony is offered.</p> <p>The cases chiefly relied upon by the defendant’s counsel were settlement cases, in which the alleged husband was not a party to the suit, nor interested in the event.</p> <p>There are some cases in which the alleged wife was deemed incompetent to testify for her reputed husband, after long cohabitation, and other acts creating a presumption of marriage ; but these do not reach the present question. Nor do I find any case which conflicts with the above views, except that Peat’s Case, in Lew. Cr. Cas. 288, and Wakefield’s Case, id. 279, are said to sanction an examination of a reputed wife on her own voir dwe, to prove the invalidity of the marriage. I am not able to perceive the propriety of such an examination, when the question of marriage is the very question for the jury.</p> <p>The argument in its favor amounts to this: if she will swear she is not the plaintiff’s wife, then she is competent to do so. This is simply absurd, for she is offered for that very purpose; the offer of her testimony assumes that she will give it, if permitted ; there is no occasion for an examination on her own voir dwe, if, when sworn, she does not give evidence that she is not married; the offer and the evidence amount to nothing, and to say that if she will give evidence that she is not married, she is, therefore, competent, is to beg the whole question.</p> <p>I am still of opinion that the ruling on the trial was correct on this point. ••</p> <p>Thi/rd.—The remaining ground on which a new trial is sought is, that the damages are excessive. The verdict for the plaintiff is §10,000 damages.</p> <p>This is, undoubtedly, in view of the situation of the parties, a very heavy verdict. I feel at liberty to say, that I did not think, upon the trial, that such a verdict ought to be given; nor has a review of the evidence convinced me that, had I been called upon as a juror to decide the facts in this case, I could have united on such a verdict. But my opinion, in this respect, is founded mainly upon a doubt whether the defendant is at all guilty of the wrong charged upon him, not upon the idea that, if guilty, the amount of damages is grossly exaggerated. The evidence of the defendant’s guilt is very conflicting; and I think that a verdict for either party would have been sustained in this respect. The court cannot set it aside as against evidence, nor is this claimed by the defendant’s counsel.</p> <p>Assuming, then, that the defendant is guilty, the case shows enough of aggravation in the malice exhibited by the defendant, and enough of suffering on the part of the plaintiff, to render it improper for the court to interfere with the amount of damages. Indeed, it is so difficult to estimate in dollars the just compensation to a plaintiff for the loss of i wife, with whom he had lived for many years in the enjoy ment of all the peace, comfort and happiness of an harmo nious union, that I can hardly suppose a case in which a vei diet should be disturbed on the ground that such compensa tion has been over estimated.</p> <p>The motion for a new trial must be denied, with costs.</p> <p>From the order entered upon this decision, the defendani appealed to the general term.</p> <p>I. The court erred in refusing to dismiss the plaintiff’s complaint. No actual marriage was proved—it was to be presumed only from circumstances proved. The offence of persuading away a person’s wife was made indictable by statute. (3 Ed. 1 & 13.; see 3 Black. Com. 139, and notes.) The statute law of England at 1775 became our law. (Const. of 1777, sec. 35; Const. of 1846, art. 1, sec. 11.) It therefore being an indictable offence, the rule which in crim. con. cases and indictments for bigamy prevails, that actual marriage should be proved, applies here—the reason of the rule being “ that proof of actual marriage is necessary to overcome the presumption which the law makes against crime or acts of a criminal nature.” (Clayton v. Wadell, 5 Barb. S. C. Rep. 214, 216; Commonwealth v. Littlejohn, 15 Mass. 153.)</p> <p>II. The court erred in excluding Catharine Coombs as a witness. The evidence was jyrima facie and presumptive of marriage between the witness offered and the plaintiff. The alleged wife was the best witness that could be called to speak directly on the subject. (1 Greenleaf Evidence, sec. 339; Peat’s Case, 2 Lew. Cr. Cases, 288; Wakefield’s Case, id. 279; Allen v. Hall, 2 Nott & McCord, 114; Goodright ex dem. Stevens v. Mops et al. Cowp. 593; King v. Inhab. of Bromley, 6 Durnf. & East, 330; King v. Inhab. of St. Peters; Mace v. Cadell, 1 Cowp. 232; Phillips, 176-7; Meumer v. Covet, 2 Mart. Lon. Rep. 56; Hill v. Wood, Esp. 722; Poultney v. Tarrhaven, Brayt. 185; Commonwealth v. Littlejohn, 15 Mass. 413; Phil. Ev. 88, note, 163 and 192.)</p> <p>HI. The case shows the parties to have been in humble circumstances. The damages were excessive, there being no charge of crim. con. They are flagrantly outrageous and extravagant, so much so as to indicate that the jury must have been actuated by passion, or partiality, or prejudice. (Coleman v. Southwick, 8 Johns. 45; Southwick v. Stevens, 10 id. 443.)</p> <p>I. The motion for a dismissal of the complaint was properly denied. Ho actual marriage need be proved. (9 Paige Chanc. Reports, 611 and 574; 1 Hill’s Reports, 270; 5 Johns. Rep. 196; 7 Wend. 47; 3 Mass. Rep. 317; 4 Burr. 2,057; 1 Bl. Reports, 632; 10 East, 285; 4 Johns. 53 and 54.) And see further, the opinion of Judge Dax-y, in the case of Linden v. Linden, decided 27th January, 1851.</p> <p>H. Catharine Seherpf was properly rejected as a witness. Before she was offered as such she had been proved to be the wife of plaintiff by her own affidavit, and was so recognized by the defendant while she was living with her husband, and while she was in Brooklyn, and at all times. (2 Hill’s Reports, 181, Babcock v. Booth; Greenleaf on Evidence, vol. 1, p. 409, § 339; see cases last above cited; The People v. Carpenter, 9 Barbour’s Reports, 580; 2 Kent’s Commentaries, 178; see 1 Greenleaf’s Evidence.) But even ■when the question is in doubt, the alleged wife must be excluded as a witness, either for or against the husband.</p>

<p>An agreement by A., giving a right to construct a party wall one half thereof upon his lot, and covenanting, for himself, his heirs and assigns, whenever he should erect a new building, to pay to B», his heirs and assigns, a moiety of the value of such portion of the wall as he should use; is a grant of an easement. The grant is an incorporeal hereditament, and the covenant connected with it binds, and is a charge upon the land.</p> <p>The covenant not having been broken in the lifetime of A., an action for a breach thereof cannot be instituted against his personal representatives, but may be maintained against his devisees upon their using the wall.</p> <p>The legal estate being vested in devisees in trust, the cestui que trust is not a necessary party to a suit for the breach of the covenant, and a joinder of him as a party defendant cannot affect his competency as a witness for the devisees.</p> <p>‘Phe judgment in such an action should be against the devisees solely, and not also against the cestui que trust.</p> <p>Where such an agreement recited, that the parties had agreed that the “ division wall ” of their houses should be taken down by B., and that he should erect, “in the place thereof,” a party wall “ on the division line” of the said lots, and A. then covenanted that B. might take down the division wall then standing, and erect in the place thereof a party wall of certain dimensions, to rest equally on the ground of each party; held, that the new wall was to be erected on the division line occupied by the former wall, and that A.’s devisees, being sued upon his covenant, could not interpose as a defence a question of title, and object that said line was not the true line of division between the land of the respective parties.</p>

The complaint in this action was in the nature of a bill in equity to obtain an accounting between partners.

Review of an order of arrest. The arrest was granted upon an affidavit stating, in substance, that the plaintiffs in New York transmitted $5,835 to the defendants, a commission house in New Orleans, with express instructions to use the money in the purchase and shipment of sugar to the plaintiffs. That the money was received by the defendants under a distinct understanding that it should not be employed for any other purpose.

This was an action for the recovery of money, and was founded upon a parol agreement entered into for the purposes and under the circumstances detailed in the opinion of Daly, J. The case came before this court upon the appeal of the plaintiff, who was defeated in the Marine Court. I. The agreement in question, although by parol, is not within the statute of frauds.

<p>This was an action in the nature of trover, and was prosecuted by the plaintiff as administratrix of an estate, to recover damages for the wrongful detention and conversion of a sum of money, and also certain household furniture, and certain writings, hooks and papers. The Marine Court awarded judgment in favor of the plaintiff, from which the defendant appealed. The questions determined upon the appeal are sufficiently illustrated in the opinion.</p>

It appeared from the evidence in this cause, that one King, being the owner of stables adjoining the rear of a hotel of which the defendant was the proprietor, had been accustomed, down to a certain period, to purchase feed of the plaintiffs in the defendant’s name, and that bills therefor had been paid by the latter. This action was brought to recover payment for feed furnished to King, but charged to the defendant.

<p>Where, upon a sale of articles in bags, the purchaser took away a sample; held, that there was no delivery within the provisions of the statute of frauds.</p> <p>To constitute a symbolical delivery, the act must show that the vendor relinquishes his control over the property, and places it within the power of the vendee.</p> <p>Where a sale is made, upon condition that the property has not already been sold by a broker; a delivery cannot be inferred from the act of the conditional purchaser in taking a sample, before it is ascertained whether such prior sale has been effected.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, entered in the Marine Court. The facts appear in the opinion.</p>

This action was instituted to recover the money mentioned in the following written agreement, executed by the defendant: “ I hereby agree to pay B. K. Clarke, trustee, one hundred and fifty dollars, on the 3d day of May, 1854, for rent of house, seventy-two Lexington avenue. New York, February 27,1854.

This action was prosecuted to recover the value of a trunk and its contents, being the personal baggage of the plaintiff’s assignor, lost on a passage from Liverpool to New York, in the steamer “ Star of the West.” The plaintiff recovered a judgment against the defendant, Thompson, only, the evidence proving him to have been the owner of the ship. ■ The case now came up on his appeal.

Action against the defendants as passenger carriers, for the loss of a trunk and its contents. The Marine Court awarded judgment for the plaintiff, upon the case stated by Daly, J. Among the articles assessed in making up the amount of the recovery in the court below, were a gold watch and chain, and certain finger rings, all of which the plaintiff had deposited in the trunk in question.

<p>These cases came before the court upon an order to show cause, obtained by the plaintiffs in the second suit. The matters in controversy, as presented upon the hearing, are distinctly stated in the opinion.</p> <p>The plaintiffs in the first suit composed four mercantile firms, namely, Lottimer, Large & Co., Auffmordt, Hessenberg & Co., A. Iselin & Co., and August Wetter, and they, with then* associates, held claims against the limited partnership of “ Lord & Brown,” amounting to about $30,000. The plaintiffs in the second suit constituted the house of Sehulten & Hurd, and also represented demands to the extent of many thousands of dollars. The nominal assets of the co-partnership were estimated at $188,811 94, from which a committee of creditors reported that $103,116 62 might be realized, wherewith to meet a confidential indebtedness of $21,214 95, and business debts amounting to $145,304 14, exclusive of notes for $11,000, held by the special partner against the firm.</p> <p>cited Rutter v. Tallis, 5 Sand. S. C. R. 610; 10 Paige, 43; 2 id. 342; 7 id. 583; 6 id. 445; Rule of Ch. 193; Edwards’ Rec’rs, 10, 18; 8 How. Pr. Rep. 49, 50; 5 id. 35; 2 Barb. S. C. R. 319; Code, § 244.</p>

<p>Where a manufacturer, to whom gold was delivered to be wrought into jewelry, fraudulently made and delivered articles merely plated upon base metal, and received payment for his labor; held, that on discovering the fraud, the party deceived might recover as damages the value of the gold delivered, and the sum paid for the pretended manufacturings.</p> <p>But it being proved that the gold, contained in the base jewelry, was worth a certain sum, and that said jewelry was retained by the plaintiff; it -was held, that such sum should be allowed in abatement of the damages so recovered.</p>

Action by the payee against the maker of two promis'.c- 7 notes, given under the circumstances detailed in the opine The case came up on the defendant’s appeal, from a judgment, rendered in the plaintiff’s favor, by the Marine Court.

This action came np for review, upon an appeal by the defendant from a judgment rendered against him for the price of certain oil, purchased by Mm for use upon machinery.

This was an appeal from an order granted at a special term, for an injunction and for the appointment of a receiver, in an action prosecuted by the plaintiffs, on behalf of themselves and of other creditors of a limited copartnership. The facts plainly appear in the opinions.

The action was brought by an endorsee against an endorser of a promissory note.

The defendant brought the action before this court, by appeal from the Sixth District Court. The case clearly appears in the opinion.

■ Action for slander. The plaintiff brought his suit in the Marine Court upon a warrant, and recovered a judgment, which the defendant prosecuted for a review in this court. The first ground of appeal was, that the warrant was issued unsupported by a proper affidavit. The appellant answered below, without raising this objection. The second ground of appeal was, that the justice had erred in denying the defendant’s demand for a jury.

<p>This action was founded upon a special agreement, entered into between the defendant and an attorney at law. After reciting the possession by the defendant of claims against sundry persons, and also of a certain specified account against one- Donohue, the agreement provided for the employment of Lincoln, the attorney, “ to aid in the collection of the said claims and accounts, and to prosecute, ask, demand, sue for, and in any manner collect and recover said claims, or to make reasonable effort for their recovery and collection.” It was agreed, that the attorney should be allowed and paid, “ for Ms professional services,” a sum equal to twenty-five per cent, of all amounts collected or recovered, in suit or otherwise, by him, “ or wMch may be collected or recovered by or through his agency or assistance, in whatever manner the same may be collected, received or recovered by him, or by said Fox (the defendant).” If such claims and accounts, or any part thereof, should not be collectable, or should not be collected or recovered upon demand or prosecution, Fox agreed to pay, notwithstanding, a sum equal in amount to ten per cent, for the claims first above mentioned, and two and one half per cent, for the account against Donohue. Fox further “ agreed and guaranteed,” that he would put said claims and accounts, within three months, into the hands of LincoM for collection, and furnish all necessary evidence and facilities for prosecuting, colleetmg or recovering the same. “ And in default of the true and faithful performance of any of the conditions and stipulations herein contained, the said Fox agrees to pay to the said Lincoln the sum of one hundred dollars, as damages therefor;” but the claim against Donohue was not to be prosecuted within eight months, unless otherwise directed. “ And should the said claim and accounts agamst Donohue be settled, compromised or received by said Fox, or in any way disposed of within that time, or thereafter, in that event the same per cent-age thereon of twenty-five per cent, is to be paid to said Lincoln.”</p> <p>The plaintiff claimed moneys under the agreement, by virtue of a written assignment executed by Lincoln, expressing the consideration of one dollar. Being called as a witness, the assignor, upon cross examination, testified that the real consideration was two promissory notes of the witness held by the plaintiff, which the plaintiff promised to surrender to be cancelled. TMs promise remained to be performed, but the witness testified that the notes were regarded and acknowledged as paid by the transfer of the claim now in suit, and that such transfer was unconditional.</p> <p>After testifying to the collection and prosecution, respectively, of several accounts, the assignor stated that the defendant, although requested, never placed in his hands the claim against Donohue, for which omission it was insisted that the defendant was liable to pay the $100 mentioned in the agreement. The defendant “ settled this account,” by taking four notes of Donohue, amounting, together, to about $800—the claim being for $1,087 79. It was proposed by the defendant to send the four notes to the witness for collection, but he refused to undertake their collection in view of the length of time to intervene before their maturity. One of these notes, however, was received by the witness, but no steps were taken to obtain its payment, for the reason, the witness stated, that they would prove of no avail.</p> <p>On behalf of the defence the defendant himself was called, and stated that he was advised by Lincoln to obtain notes from Donohue, in view of the difficulty in proving the original claim against him, which arose upon a sale of goods. The defendant produced a letter, written by him to Lincoln, enclosing Donohue’s notes, and stating that they had been taken in settlement of the account, as the debtor was so situated that an attempt to enforce payment would be futile. The letter requested a resort to “ easy means.”</p> <p>Lincoln being recalled, denied that he had ever advised the defendant to take the notes from Donohue.</p> <p>The plaintiff claimed twenty-five per cent, upon the Donohue account, ten per cent, upon specified claims not recovered, twenty-five per cent, upon certain sums collected, and $100 as a forfeiture.</p> <p>The Marine Court disallowed the forfeiture, but awarded a judgment in favor of the plaintiff, and decided that the claim against Donohue was settled, compromised and disposed of, within the meaning of the agreement. The defendant appealed to this court.</p>

<p>Appeal by the defendant from the Sixth District Court. The opinion states the facts.</p>

This was an appeal from aii order made at a special term, denying a motion to set aside an execution issued against the person of the defendant, and to discharge him from imprisonment thereunder. The action was commenced by a warrant issued out of the Marine Court.

The complaint was filed by the plaintiff, as the assignee of the claim of one Edward Mix, for services performed, during a period of 23 days, for an infant son of the defendant, while the latter was seriously ill at Sacramento, in California. To the period of leaving New York, the son resided in Ms father’s family, but was employed as a clerk with a mercantile firm, and retained his salary to Ms own use.

Tms was an appeal by the defendant from a judgment against him for the price of a horse. The principal ground of defence was, that the sale was made on Sunday. It appeared that the bargain was concluded on that day, in a drug store, but there was no evidence that the horse was shown at the time of the sale.

Review of a judgment of the Fifth District Court, rendered in favor of the plaintiff. The facts relating to the several grounds of appeal taken by the defendant are sufficiently indicated in the opinion. Upon the argument, in addition to other objections, a reversal and suspension of the judgment and a new trial were urged, under § 366 of the Code, on the ground that manifest injustice had been done to the defendant, who failed to appear at the trial.

This action was instituted by the administratrix of a physician, for professional services rendered by the decedent. The answer was in the nature of the general issue, with a plea of a former judgment between the same parties. The facts appear in the opinion. The case was prosecuted to this court, upon an appeal by the defendant from the Sixth District Court.

The plaintiff brought his action in the Marine Court, where the defendant recovered judgment. An appeal having been prosecuted to this court, opinions were filed here to the effect that the judgment below was erroneous, and that the plaintiff was entitled to the recovery sought by him, together with costs.

<p>Appeal hy the defendant from a judgment of the Sixth District Court.</p>

<p>The plaintiffs were the proprietors of an extensive bowling alley, fitted up and conducted in the building known as Gothic Hall, formerly Masonic Hall, in the city of Mew York. The complaint was exhibited in the Marine Court, against four defendants, who were charged with “ entering upon the plaintiffs’ close, and doing damage to their business and property in the sum of $500.” It was not alleged that the defendants employed force.</p> <p>The premises were owned by two of the defendants, Gibbs and McCarthy, who leased them for a year to one Samuel Parker. This lease was afterwards extended for three years. It contained a provision to the effect that all repairs should be executed by the lessee, and that in default of his so doing, the lessors or their agents might enter, examine and repair the premises as their safety might z-equire. Parker assigned the lease to the defendant, Cornell, who let the building to the plaintiff, Turner. The other defendant, Finnigan, became interested therein, under articles of copartnership with Turner.</p> <p>The answer was “ a general denial and justification.”</p> <p>On the trial, it appeared that excavations were made by third persons on lots adjoining this building, and that the defendant, McCarthy, with the defendant, Goodwin, a mechanic in his employ, entered upon the premises, shored up the walls and effected extensive repairs. The defendant, Cornell, was also proved to have visited the building. As to the defendant, Gibbs, a nonsuit was granted.</p> <p>The cause was tried by a jury, who acquitted the defendant, Goodwin, and found a verdict against McCarthy and Cornell, assessing the damages against the former at $250, and against the latter at $228. The justice of the court be low entered a judgment in accordance with the verdict.</p> <p>The cause now came up upon the defendant, McCarthy’s, appeal. The reader is referred to the opinion for a further statement of the evidence bearing upon the questions determined in the decision of this court.</p>

Action by an endorsee against the survivor of two joint makers of a promissory note. The case was tried by a jury, in the Marine Court. The plaintiff having established a prima fade case and rested, the defendant called a witness, who testified to admissions of the plaintiff and other facts, to the effect that the plaintiff obtained the note for a usurious consideration. The defendant then moved for a nonsuit or for a dismissal of the complaint, which motion was denied.

<p>Appeal by the defendant from a judgment of the Marine Court, for legal services. The points are sufficiently indicated and illustrated in the opinion.</p>

<p>Review of a judgment of nonsuit, granted in the Marine Court.</p>

This action grew out of the act known as the prohibitory liquor law, passed on the 9th of April, 1855. The cause was prosecuted to this court upon an appeal of the defendant from a judgment rendered against him in the Fifth District Court, by William B. Meeoh, Esq., the justice of that district.

The plaintiffs, being the proprietors of a livery stable, received from the owner a horse, with the understanding that they might use the animal, and if they were satisfied, become the purchaser thereof. While in possession under this arrangement, they hired the horse upon a Sunday to the defendant.

The complaint charged the defendant with a wrongful detention and conversion of a “ portable furnace,” two feet and nine inches in diameter, which one Dr. Ware had placed in the basement hall of a house owned and occupied by him. It replaced a similar furnace, and was put partially in the open hall, and partially—to the extent of about fifteen inches —in a permanent recession in the brick wall of the building. The old register pipes were used.

The plaintiff and one Baker, desiring to send a box of mathematical instruments to St. Louis, delivered them to one Crane, at number 59 Broadway, New York, and received a receipt, in writing and print, signed by the latter, which in terms acknowledged that the Adams Express Company, 59 Broadway, New York, had received the articles in question, and agreed to transport them to their destination, with the usual clause restricting the liability of the carriers within certain…

Appeal by a landlord from a judgment of the Third District Court, for damages in an action by his tenant for a breach of a covenant to erect an addition to the demised premises, for which improvement an increased rent was to be incurred by the tenant. The facts and points in the case appear in the opinion. . /

Action for the price of .goods sold and delivered. The defence relied upon' was a special agreement entered into between the parties as set forth in the opinion. The Marine Court awarded judgment to the plaintiff.. The defendant appealed,-..

<p>Appeal by the plaintiff from a judgment of the Marine Court, where the complaint was dismissed under the circumstances indicated in the opinion.</p>

<p>The defendant suffered judgment in the Marine Court, and appealed upon the ground stated in the opinion.</p>

<p>< here, by the terms of a lease, the tenant is bound to make the repairs, and keep the premises in good repair, &c., statements made by the landlord previous to the lease, that the premises were in good repair, will not sustain an action by the tenant for the value of repairs executed by him.</p> <p>But where the landlord himself, after the lease, voluntarily makes alterations upon the premises, which alterations are defective, and on a threat of the tenant to bring an action against him, agreed that the tenant may make repairs, and that he, the landlord, will pay therefor; such agreement, although by parol, is valid.</p> <p>In an action upon such an agreement, the tenant cannot recover for rent lost, for the reason, that under tenants left the premises in consequence of their condition, as caused or promoted by the defective repairs of the landlord.</p>

<p>This was an action for negligence, and was prosecuted against the corporation of the city of New York. The trial^ took place before Daly, J., and a jury, and the case came up to the general term upon the plaintiff’s appeal. The questions determined arose upon the rejection of testimony offered by the plaintiff, and upon the decision of the judge at the trial dismissing the complaint, under the circumstances stated in the opinion.</p> <p>cited Blake v. Ferris, 1 Selden, 48; Kelley v. The Mayor, dec. 1 Kernan, 432; Pack v. The Mayor, &c. 4 Selden, 222; Ellis v. Sheffield Gas Co. 22 Eng. L. & Eq. 198; City of Buffalo v. Halloway, 3 Selden, 496; Stevens v. Armstrong, 2 Selden, 435; Peachey v. Rowland, 16 Eng. L. & Eq. 442; Overton v. Freeman, 8 id. 479; Knight v. Fox, 1 id. 479; Rapson v. Cubitt, 9 Mees. & Welsb. 709; Quarman v. Burnett, 6 id. 497; Mulligan v. Wedge, 12 Adolph. & Ellis, 737; Allen v. Hayward, 7 Queen’s Bench, 960; Langher v. Pointer, 5 Barn. & Cresw. 547; Mathews v. West London Waterworks Co. 4 Camp. 403; Bush v. Steinman, 1 Bos. & Pull. 404; Yates v. Brown, 8 Pickering, 23; Stone v. Codman, 15 id. 297; Wiswall v. Brinson, 10 Iredell, 554; Lowell v. Boston & Lowell R. R. Co. 23 Pickering, 24; The Mayor of New York v. Baily, 2 Denio, 433; Elder v. Bemis, 2 Metcalf, 599; Sproul v. Hemmingway, 14 Pickering, 1; Martin v. Temperly, 4 Queen’s Bench, 297; Charter of 1849, § 23; Ordinance, May 30, 1849.</p> <p>cited Blake v. Ferris, 1 Selden, 48, and cases there cited; Pack v. Mayor, &c., of N. Y., 4 Selden, 222; Kelley v. Mayor, &c., of N. Y., 1 Kernan, 432; Gourdier v. Cormack, 2 E. D. Smith, 254; Amended Charter of 1849, § 23; Ordinance Organizing Departments, passed May 30, 1849; Jacobs v. Duke, 1 E. D. Smith, 271.</p>

<p>The plaintiff, who was a lawyer, sought in this suit to recover compensation for legal services performed by him for the defendant, and also for services in effecting a sale to the defendant of real estate held by the heirs and executors of Richard Conner, deceased, at Castleton, Staten Island.</p> <p>The ease and the evidence are thoroughly stated in the opinion pronounced at general term, where the cause was brought by the defendant, upon an appeal from an order entered at a special term, denying a new trial. The action was tried before Daly, J., and a jury, and a verdict found for the plaintiff. The following is an abstract of the judge’s charge:</p> <p>“The claim of the plaintiff against the defendant is for services rendered, part as a lawyer and part in some other capacity. The claim for services rendered as a lawyer is not disputed. The dispute in the action arises in respect of two transactions, the claim of the plaintiff for $50 commission on the Evening Side purchase, and the other for $875 commission on the purchase of the Conner farm. As to both these transactions, the general principle of law applies, that if one man renders another a service, the law presumes he is entitled to compensation. If there be no agreement for the rate of that compensation, it is to be taken according to the value of the service rendered. It is of no consequence whether the plaintiffs are lawyers or not, they are equally entitled to compensation, according to the value of the services rendered. Their being lawyers only affects the scale and not the right of compensation. The question is, what is the value of their services ? $50 is claimed by them for the purchase of the property at Evening Side. This is not the usual broker’s commission. The usual commission of brokers is 2£ per cent. As to broker’s commission, there is no fixed rule to govern it, and though there may be a custom among real estate brokers, it does not follow that that custom is applicable to this case. The value of a broker’s service in a business to which he is accustomed is greater than that of a stranger. The jury are not bound by the evidence as conclusive with regard to either; in both, the rate of compensation is according to the value of the services rendered. The defendant, it appears, was satisfied as to the Evening Side purchase. As regards the farm it was different. The plaintiff, however, reduced the price. This was a service rendered. As regards the whole transaction, the testimony of the brokers is not to be taken as the rule of damages, but only as illustrative. Brokers’ services are usually of more value. You are to look at the whole together, and allow to the plaintiff what you think his services are worth. There arises, however, another question in relation to the plaintiff’s demand for commission for sale of the Conner farm, and that is as to the payment of $700 by the executors. If that payment was made in consequence of his employment as agent for the Conner family, the plaintiff has no right to recover any thing. It is a well settled principle, and has been often decided by this court, that the same person cannot act as agent for both parties. He cannot receive compensation, and has no right to compensation from both. He cannot render the same kind of services for both. If the evidence satisfies you that Catlin was paid by the Conner family for the sale of the property to the defendant, he had no right to compensation in this action. There is evidence that $700 was paid to him, and the receipt states what it was paid to him for. Mr. Conner swears, however, that he acted himself in the sale, and that the $700 was paid to Catlin as a compensation for having found a purchaser. There is no evidence on this point than "Wood’s, who received part of the compensation. The mere fact of Catlin receiving the $700 is no bar to his recovery in this action, if he did not act as agent to the Conners. As attorney, he may recover compensation, and there is nothing in the fact of his having subsequently acted as counsel for the Conners to preclude him from that recovery. The plaintiff is entitled to a verdict for his legal services, amounting to about $44. The question as to the amount of his compensation for the purchase of Evening Side and the Conner farm is for you to decide, hut as to the Conner farm, you are also to consider whether he did or did not act as agent for the vendors on that sale.”</p> <p>The following is the concluding portion of the opinion of Ingbaham, First J., at special term, on denying the motion for a new trial:</p> <p>“ Upon the trial it appeared that the plaintiff had received from the owners of the farm $700, which, in his receipt therefor, he states to be in full of all demands for services on the sale and conveyance of the farm of Conner. It also appears in evidence, that one of the owners of the farm offered the sum of $2,000 to any one who would procure a purchaser of the farm at $40,000, hut no offer was made for any smaller snm. The same person testified that Catlin was not the agent for selling, to his knowledge; that he acted for himself, and employed nobody to act for Mm in the negotiation; that Gatlin acted for Grote and not for himself. The jury were instructed, that if Gatlin was the agent of Conner in effecting the sale, and received from him a compensation, he was not entitled to any from the defendant. That the same person could not at the same time act as agent for buyer and seller, and receive a compensation from both; but the mere receipt of a gratuity from Conner for finding him a purchaser, to what Gatlin had no legal claim, would not deprive him of a right to compensation from the defendant, unless the jury found that Gatlin was acting as the agent of Conner in making the bargain. Under these instructions the questions of the agency of Gatlin were submitted to the jury. I think that submission was proper, and that the questions were for a jury to pass upon. There was evidence from which the jury might conclude that no such agency existed, and if not, then the plaintiff was entitled to compensation from the defendant for his services. The receipt was not of such a conclusive nature as to prevent the submission of -the question to the jury; and if not, then their verdict ought not to be set aside, even if the court on the trial might have thought otherwise. Whatever doubt I may entertain upon the facts, I feel bound by the findings of the jury, and do not feel warranted in ordering a new trial. Motion for a new trial denied.”</p>

This action was founded upon a charter party, and was instituted hy the owner of a vessel, against the charterers, to recover a claim for demurrage.

The plaintiffs sued upon a bill for lumber, alleged to have been sold and delivered by them to the defendant. The cause having been referred, the referee made a general report against the plaintiffs, who prosecuted the case to the general term.

<p>Action "by the plaintiffs, as landlords, for rent and for injuries done to the demised premises by the lessee thereof. These two claims were founded upon covenants in the lease. The complaint sought to recover further for the costs of a summary dispossession of the tenant. The answer set up a general denial, and claimed to recoup damages suffered from a failure to supply steam power in accordance with a stipulation contained in the lease. The case was brought up by appeal from the Third District Court, the plaintiffs asking a reversal, on the ground that the judgment awarded in their favor below, was for a less sum than they were entitled to recover. The opinion fully reviews the points and evidence in the cause.</p>

The plaintiff was the administrator of the estate of a deceased person, and instituted this action to recover $500 for money alleged to be held by the defendant, Mrs. Griffith, one of the next of kin. The answer set up the payment of money on account of the estate, and the rendition of certain services therefor. The case, in this court, turned upon the question of the validity of the first branch of the defence, the facts relating to which are detailed in the-opinion.

<p>Where the return of a justice shows a special finding of fact upon sufficient evidence, exclusive ef testimony objected to and improperly received, and such finding is expressly and solely placed by him upon such proper evidence ; the error in admitting the illegal testimony furnishes no ground for reversing the judgment.</p>

Actiok* of trespass tried in the Fourth District Oourt, v-i4 prosecuted to the Court of Common Pleas by appeal fron a, judgment awarding damages to the plaintiff. The facts appear in the opinion.

Appeal by the defendants from one of the lower courts, where the plaintiff recovered for commissions as a broker, under the circumstances appearing in the opinion.

The assignor of the plaintiff, Charles Devlin, was a contractor with the corporation of the city of New York for the building of a sewer in Grand street, in that city, and the defendants also held a contract for paving the same street.

Action upon a bill for engraving and printing, prosecuted to this court by appeal from a judgment of the Marine Court, recovered by the plaintiffs.

The plaintiff’s case was, that in February, 1854, he executed to the defendants a written lease of portions of a storehouse, for one year from the following May, at the rent of $1,300, and that the defendants occupied the premises for one quarter immediately preceding the commencement of the above term; for which preceding quarter, rent was claimed at the rate fixed in the lease. The suit was brought in June, 1854.

Actiob against a surety upon a covenant to pay rent. Defence, satisfaction by a levy under an execution against the principal.

Appeal hy the defendants, from the Sixth District Court, where the plaintiff declared for the use and occupation of certain premises. The answer was a general denial. On the trial, the plaintiff put in evidence a landlord and tenant’s agreement, with an ordinary contract of suretyship, contained on the same piece of paper, executed, the former hy one defendant and the latter hy the-other. The justice rendered judgment for the plaintiff.

<p>A husband may sue for services rendered by bis wife; but it seems, that where such services were performed in pursuance of a contract made directly with her, it is optional with him to join her with himself as a party plaintiff.</p> <p>The husband cannot sustain a joint action in the name of himself and wife, for both her services and his own.</p> <p>An objection to such misjoinder in an action so brought, should, however, be taken at the trial.</p> <p>A nonjoinder of defendants in the lower courts must be set up in the pleadings.</p> <p>Variance between the summons as served and returned, in the district courts, should be objected to before issue joined.</p> <p>Bix jurors may try a cause in those courts. (2 Rev. Laws, 374, § 96; Session Laws of 1867, vol. 1, p. 717, chap. 844, § 34.)</p>

The trial of this cause was conducted at a term held by Woodruff, J., and resulted in a direction for a nonsuit, with liberty to the plaintiff to appeal to the general term without security. / The complaint alleged, in substance, that the defendant, on the 18th of July, agreed with the plaintiff, in consideration of the services of the plaintiff to be rendered, that he, the defendant, would employ the plaintiff, and that he would enter into a contract in writing with the…

The defendant and other persons hired horses from the plaintiff, stating that they desired to ride to Harlem, a distance of about eight miles. The party were joined by a lady equestrian at Harlem, and rode on to ELngsbridge, about six miles beyond the original destination. The horses were rested; but about half an hour after starting for home, the horse rode by the defendant faltered.

This action was founded upon the following instrument, signed by both parties: “ I do hereby agree to give Mr. John Nounenbocker steady employment for the term of one year, at the rate of twenty cents per hour for every hour’s labor properly and satisfactorily performed, as a gilder, in my gilding department, at No. 14 Dutch street; and also, to pay one dollar per week extra to superintend the silver gilding department, and to make himself generally useful; commencing from…

Application to the general term, for a new trial, after a dismissal of the complaint directed by Ingraham, First J. The ground of the dismissal was, that the complaint did not contain a cause of action. The substance of the allegations therein are given in the opinion of Woodruee, J. cited Story on Contracts, (2d ed. 1847,) §§ 409,410, 411, 422, and notes; Addison on Contracts, pp. 231, 232; 2 Kent’s Com. (7th ed.) 631-634, and notes; Utica Bank v. Van, Grison, 18 Johns.

This action was instituted by au architect, to recover $9,387 50 for plans and specifications prepared by him for the erection of a market in the city of New York, under the circumstances mentioned in the opinion. The case came up from the trial term for the review of a judgment of nonsuit, directed by the presiding judge. cited 2 Kent’s Com. 291, 292; Mayor, &c., of Stafford v. Till, 4 Bing. 75; Beverly v. Linc.

<p>In an action against an officer, for a trespass in levying upon goods under an execution ; it is not necessary to aver in the complaint that the goods were exempt from execution.</p> <p>Proof of actual possession is sufficient to maintain the action, without other evidence of title in the plaintiff.</p> <p>An authorized levy upon, without removing property, constitutes a trespass, for which an action will lie.</p>

The defendants were an association organized pursuant to the act for the regulation of stage routes in the city of New York, passed April 4, 1854. (Sess. Laws of 1854, chap. 142.) The plaintiff sued them for goods sold. The Marine Court allowed the defendants to set off the par value of four shares of then- capital stock, as money due them upon the plaintiff’s subscription for such four shares. On the trial the sale was admitted.

The defendants, on the first of January, agreed by parol to employ the plaintiff as a clerk, at a salary of $1,000 per annum, for one year, commencing on the first of the ensuing month, February. The plaintiff entered into their store as a clerk, and continued until June, when he was discharged. He now sought to recover for four months’ salary, from June 1 to October 1, when this suit was commenced. The Marine Court dismissed the complaint. The plaintiff appealed.

Appeal by the defendant from a judgment of the Third District Court, in favor of the plaintiff, as the assignee of a claim. The facts bearing upon the points, raised in the case, are sufficiently indicated in the opinion.

Review of a judgment entered upon the report of a referee in favor of the plaintiff. The action was for goods sold to the defendant. It appeared in evidence that the defendant was a dressmaker, and that, at the time of the sale, she was a married woman, but become a widow before the suit was brought. Coverture was not pleaded in the answer, nor stated at the trial as an objection to the plaintiff’s right of recovery.

<p>This action was instituted against the corporation of New York, for the recovery of salary, as a police clerk, from June 18 to July 1, 1855. The substance of the act of the legislature, under which the plaintiff claimed to have been appointed such clerk, is stated in the first of the reporter’s head notes, and the proceedings, upon the legality whereof depended the validity of his appointment, appear fully in the opinion. The First District Court awarded judgment against the city, and an appeal was presented to this court.</p>

Appeal by the defendant from the Sixth District Court. The questions in the case are sufficiently illustrated in the opinions.

<p>The provision, in § 235 of the Code, to the effect that a debt due by a third person to a non-resident debtor, may be attached by serving the warrant upon such person; is not complied with by leaving the warrant with a man in his store, without proof that it ever came to the possession or knowledge of the person for whom it was intended.</p> <p>The remedy is extraordinary, operating in substance as an assignment by the absent debtor to the sheriff, and the statute should be strictly pursued.</p> <p>Whether a general notice that the sheriff attaches all property of the debtor in the hands of the person served, is a valid attachment, without specifying the particular property designed to be reached ? Dub.</p> <p>The propriety of an amendment granted in the court below upon the appellant’s motion, will not be reviewed upon Ms appeal.</p>

<p>This action was in the nature of an action of trespass for a false imprisonment. It is unnecessary to add to the statement of facts appearing in the opinion, except in respect to the form of the warrants upon which the arrests in question were made. The following is a copy of one, both being substantially alike:</p> <p>To ANT AND EVERT OF THE POLICEMEN IN THE CITT OF New York:—This is to require you, and each of you, to bring before me the body of Mrs. Sleight, of whom it is complained, by Mrs. Ogle, that said Mrs. Sleight did willfully and maliciously break and destroy the Croton water pipe in Horatio street. Given under my hand, this 12th day of April, 1854. S. H. Stuart, Police Justice.</p> <p>The case came up on the defendants’ appeal from a judgment of the Marine Court.</p> <p>cited West v. Baxendale, 9 C. B. 141; Panton v. Williams, 2 O. B. 169; S. C. 1 G. & D. 503; Hill v. Yates, 8 Taunt. 180; S. C. 2 Moon. 80; Beebe v. BeBaun, 3 Eng. 510; Maston v. Deyo, 2 Wend. 421; McLedon v. Berry, 1 Camp. 203; Wallace v. Alpine, 1 id. 204; Fisher v. Burton, 1 Dow, 215; Morgan v. Hughes, 2 Term, 225, 231; Whitworth v. Hall, 3 Ad. & El. 733; Jackson v. Smith, 7 Cow. 717; Eaton v. De Angelis, 6 Hill, 344; Bacon v. Townsend, 6 Barb. 426; Davis v. Clough, 8 N. H. 151; Hunter v. French, Wells’ R. 517.</p> <p>cited Crowell v. Gleason, 1 Fairf. 325; Green v. Rumsey, 2 Wend. 611; Curry v. Pringle, 11 J. R. 444; Tinpin v. Kenny, 3 Blackf. 210; 2 R. S. 3d ed. 793, §§ 2 & 3.</p>

<p>Pleadings in the Marine and District or Justices’ Courts are not necessarily so detailed and precise as required in other courts.</p> <p>Matters of substance, stated in general terms, and aided by a bill of particulars which fully apprises the defendant of what is claimed, will suffice, at all events where no objection is made that the complaint lacks particularity.</p> <p>A judgment will not be disturbed on the ground of the reception of immaterial testimony, where the ground of the alleged immateriality is that the fact intended to be proved thereby, is already sufficiently established by other evidence.</p> <p>Where there is an agreement that a certain deposition, not taken de bene esse, may be read at the trial, the deposition may be read, although the witness is in court. Either party may call the witness, personally, for a further examination.</p> <p>Evidence of statements made by the witness to a third person, relative to the contents of his deposition, should not be allowed by way of explanation at all; nor for the purposes of impeachment, without first examining him— he being in court—and giving him an opportunity to explain.</p> <p>Where a running account is presented, with interest calculated to the day of such presentment, and the debtor admits its correctness, except as to spedfied items, and makes a payment on account; the creditor, upon afterwards proving the correctness of the account in respect to the items objected to, is entitled to interest from the time of presentment, upon the whole balance left unpaid.</p> <p>A defendant cannot prove damages by way of recoupment, where no claim to recoup is set up in the answer.</p> <p>It is not sufficient, on appeal, to produce a stipulation signed by the respective counsel before the trial, and which would have formed a proper basis for the admission of testimony which was in fact excluded, unless it appear that such stipulation was actually introduced and brought to the attention of the court at the trial.</p>

Tms suit was prosecuted by the plaintiff, as the assignee of the claim of one Bogle, for the value of baggage lost upon a ship jointly owned by the defendants. Bogle was a passenger in the vessel, on her passage from Liverpool to New York-, where she arrived upon Monday evening. On Tuesday the passenger went to the ship, and visited her again on Wednesday. Upon the day last mentioned, the baggage in question was missing.

<p>Ebvtbw of a judgment in favor of the plaintiff against an endorser of a bank check. The opinion states the facts.</p>

This action was commenced in the Marine Court. The summons was in form “ for a money demand on contract.” The complaint charged the defendant with a wrongful taking and detention of personal property, and upon the latter cause of action the court below gave judgment. The defendant pleaded to the merits; and afterwards, without withdrawing his answer, moved to dismiss the complaint, upon the ground of variance from the cause of action stated in the summons.

<p>Appear from the Marine Court.</p>

Review of a judgment in favor of an endorsee against the maker of a promissory note, given under the circumstances stated in the opinion.

The assignor of the plaintiff, one David M. Mills, proprietor of a provision store, and the defendants, were partners in the business of pile driving. The plaintiff sued upon the following claims: 1. The price of a horse sold to the defendants; 2. The value of provender furnished for horses used by the defendants in their business; 3. Stabling of a horse, and use of horse hired to the defendant; 4. Flour furnished to workmen; and, 5.

The action was founded upon the following guaranty : “Whereas, on the 13th June, 1853, the within named Thorp & Hoag, sold and transferred the within claim to James Pollock, for value received, now, I, Peter Hoag, in consideration of one dollar, to me paid by said J. Pollock, hereby guarantee the collection of the amount of said bill, to wit, $169 04, within a reasonable time from the date hereof, provided the said Pollock shall take legal and proper steps to enforce said…

The defendant appealed from a judgment granted on default, by the justice of the fourth district, and claimed that the judgment should be reversed, on the ground that the plaintiff had appeared below by the constable who served the process. The appellant relied upon the statute and the decision to which the reporter has referred in the second of the above head notes.

<p>Where the defendant orally and in writing directed the plaintiff to gild picture frames delivered and to be delivered, and sent them to the plaintiff’s shop for that purpose; held, that his oral declaration to a person in the plaintiff’s employment, that the work done must not exceed $200, not communicated to the plaintiff, cannot operate to limit the plaintiff’s right to recover the fair value of the work, in accordance with the written order.</p> <p>The neglect of the plaintiff to object, at the trial, to the admission in evidence of such oral declaration, does not preclude him from insisting upon its insufficiency as a legal limitation of the effect of the written order.</p>

This action was instituted in Hovember, 1850, to recover the proceeds of consignments. In 1838, the plaintiff, a resident of Great Britain, consigned to the defendants, who were merchants and copartners in New York, merchandise, for sale on commission, the consignees guaranteeing the sales.

<p>An action cannot be maintained by the vendor against the purchaser, upon an executory contract for the sale of goods, without showing an offer of performance on the part of the plaintiff, as well as a failure to perform on the part of the defendant. ¡</p> <p>Where there exists a valid lien for storage, payable by the vendor, a tender of delivery is not sufficient, unless accompanied by a provision whereby the purchaser will be enabled to receive the goods unincumbered of the lien.</p> <p>It will not aid the plaintiff, in such case, to produce the testimony of the storekeeper, to the effect that he would have waived his lien and surrendered the goods.</p> <p>It must appear, that the storekeeper had no lien which he could have insisted upon had he chosen so to do.</p> <p>The tender being made to a clerk of the purchaser, the omission of such clerk to specify the lien for storage as a reason for refusing to accept the goods, is not a waiver of the object]' on.</p> <p>In order to charge the purchaser, in any event, with a waiver of objection to the sufficiency of the tender, he must be shown to have had knowledge of the lien.</p> <p>The goods mentioned in the contract of sale, being a quantity of iron in a bonded warehouse, the offer of a permit wherewith the purchaser would acquire the legal, unconditional control of the property, would be a sufficient tender.</p>

Ohe William E. Keyes, a brother of the defendant, and residing in California, was indebted to the plaintiffs in about the sum of $11,000, for goods sold. The plaintiffs held the notes of the debtor therefor, which were past due, and which they had transmitted to them agent in San Francisco, for collection. The defendant now came forward, and executed and delivered to the plaintiffs six promissory notes.

The complaint alleged, that during a period stated, the plaintiffs, forming the firm of John M. Trimble & Co., performed and furnished certain work, labor and materials, in and about the erection and furnishing of a certain building, at the request of the defendant; that such work, labor and materials were worth the sum of $6,500; and that a balance of $1,800, with interest, was justly due.

<p>The questions in this cause arose upon a demurrer to the complaint, and involved the validity of the following ordinance, passed by the common council of the city of New York, September 6,1850:</p> <p>“ The owner or occupant of each and every store or other building in the city of New York, in which there is a hoist-way, shall cause the said hoistway, on each story of said store or other building, to be forthwith enclosed by a good and sufficient railing around the opening thereof, and provide for the closing of such opening by a trap door; and each owner or occupant of any such building or store shall cause said railing to be securely fastened up, and said trap door to be closed on the completion of the business of each day, in such store or building; and for every violation of the provisions of this ordinance, or any of them, the owner or owners, occupant or occupants of any such store or building, shall be liable to a penalty of fifty dollars for each and every offence.”</p> <p>The defendants being charged by the complaint with violating the ordinance in question, objected that its passage was not within the powers of the common council, and was in violation of the federal and state constitutions.</p> <p>Judgment in the plaintiffs’ favor was taken upon the demurrer, at special term, fro forma, with liberty to the defendants to appeal, without security.</p> <p>cited 12 Wheat. 446; 9 id. 205; 5 How. U. S. R. 504; 7 id. 203; 11 Peters, 139; U. S. Cons. Amendts. art. 5; N. Y. State Cons. art. 1, §7.</p> <p>cited Commonwealth v. Blakington, 24 Pick. 352; Same v. Kimball, 24 id. 359; The State v. Muse, 4 Dev. & Batt. 319; Ingersoll v. Spaurin, 1 Denio, 540; Markle v. Akron, 14 Ohio, 586; The Mayor v. Ordrenan, 12 J. R. 122; 1 Hill, 469, 470; Paxson v. Sweet, 1 Green. 196; The Mayor v. Nash, Opinion of Woodruff, J.; Vanderbilt v. Adams, 7 Cow. 349; Stuyvesant v. The Mayor, 7 Cow. 585; 1 Green. 196.</p>

This suit was originally commenced by the plaintiff as an administrator de bonis non ad colligendum, and was after-wards continued by him as an administrator de bonis non cum testamento a/rmexo, to recover from the defendant a bond and mortgage and other personal property.

This action was instituted to recover damages for the loss of a horse, alleged to have been occasioned by the neglect of the corporation of New York to repair a pier situated at the foot of Hammond street, in that city. Hpon the trial, in the Marine Court, it appeared that the pier belonged to the corporation, but that at the time of the accident the same was under a lease to one Edwards.

This action was prosecuted against the corporation of Yew York, to recover a quarter’s salary alleged due to the plaintiff for services as superintendent of streets. The twentieth section of the charter of the city, as amended in 1849, (Sess.

The plaintiffs sued as endorsees of a bill of exchange for $1,875, drawn by one Daniel Mesmore, and accepted by the defendants.

This cause came before the court upon the defendant’s appeal from a judgment entered upon-the report of Mr. Horton H. Burlook, as sole… Held: that the purchase money for goods and merchandise could be recovered where the seller knew that they were intended to be used by the purchaser for an unlawful and illegal purpose, in violation of the excise law, where the sale was made in the ordinary course of trade, and the illegal design did not enter into and form part of the…

Action upon a bank check drawn by the defendant, and received from him by the plaintiffs, the East River Bank, in part payment of a note. The check was dated October 4,1854, and was certified by the drawees, the Eighth Avenue Bank.

Tuts action was instituted by the corporation of New York, to recover the penalty mentioned in the following provisions of an ordinance of the common council, adopted May 8th, 1839: “ Seo. 11.

This action was instituted to recover from the three defendants, as general partners, the amount of a promissory note for $1,073 50, made by the firm of “ Lord & Brown.” It was admitted, that in December, 1850, the defendants perfected all the statutory proceedings required to form a limited partnership, for the term of five years, except that the certificate recorded with the county clerk was alleged by the plaintiffs to have been irregular in the particular specified in…

The plaintiffs were merchants, forming the firm of Ralph & Co., and the defendants were merchants and hankers, under the firm name of J. & J. Stuart. The business of both firms was conducted in the city of New York.

<p>Where the plaintiffs, brokers, being employed by a third person to sell and also to purchase a house, were, at about the same time, also employed by the defendant to sell a house for him, and introduced the parties to each other and negotiated between them; held, that the plaintiffs were entitled to commissions from the defendant upon a sale of his house .to such third person, although such sale did not take place until three months afterwards, and the bargain was consummated by another, it appearing that the purchaser delayed closing any bargain for the defendant’s house until the plaintiffs finally—after said three months—succeeded in selling the house originally owned by the said purchaser.</p> <p>In an action for commissions upon a sale, a variance between the complaint and evidence, the former alleging that the sale was for a certain sum, and the latter proving that it was for a greater sum, is not material, and may be disregarded or cured by amendment, where the defendant has not been misled.</p> <p>So, also, where the variance lies in an allegation of a special agreement as to compensation, and the evidence establishes the value of the services rendered.</p> <p>In the absence of a special agreement as to the amount of commissions, usage may be shown.</p>

<p>Appeal from the Marine Court, where the plaintiff was defeated in an action brought to recover from the defendant the value of “blue flagging curb and gutter stones,” furnished to a contractor with the corporation of New York, for paving in a public street. The facts are stated in the opinions.</p>

TVtth was a review of the order made at a special term, by Woodruff, J., striking out portions of an answer in an action brought by the plaintiffs, Buss & Beid, against the editors of the “ Sew York Express” newspaper, for an alleged libel. The substance of the complaint, and of the natters objected to in the answer, is given in the opinion.

This action was instituted against the proprietor and editor of the “ New York Herald,” and was founded upon the following article, published in that newspaper: “ Who shall be special justice of police ? “ This vexed question has at last been settled, and the thirty-six anxious applicants who have considered themselves almost appointed, had better withdraw them names from the list as soon as possible, and hide their diminished heads in shame, and look out for some office…

<p>The power of the state to tax all property within its limits, whether real or personal, is unquestionable.</p> <p>In the state of New York, the constitution recognizes the existence of the power, but leaves to the legislature to determine upon what description of persons and property, and in what ratio, the imposition shall be made.</p> <p>It would be competent for the legislature to tax the personal property owned within this state by non-residents.</p> <p>Whether the imposition of such a tax would be expedient? Quere.</p> <p>A person aggrieved by an illegal tax or assessment, has ample remedies at law, without invoking the power of a court of equity.</p> <p>1. While the assessment roll remains in the hands of the assessors, the error may be rectified on application to them; afterwards, by the commissioners of taxes; and finally, the tax may, in some cases, be remitted by the board of supervisors.</p> <p>2. A writ of certiorari may, in some instances, be granted.</p> <p>3. Also a writ of mandamus.</p> <p>4. And also a writ of prohibition.</p> <p>6. There are other modes wherein, if the injury caused by an illegal assessment cannot, in a particular case, be prevented by either of the proceedings above adverted to; it may, nevertheless, be fully redressed by an action at law, each case, however, depending upon its own circumstances.</p> <p>6. The assessors themselves, and in some cases the parties by whom the original warrant for the collection of the tax is issued, may be liable, where they exceed their jurisdiction.</p> <p>7. It seems, that where no legal right exists to impose a tax, if the same be collected by distress and sale of goods, or if, upon the levying of a warrant,</p> <p>' the tax is paid to save the property; the money may be recovered back of the body who receives it from the collector.</p> <p>Accordingly, held, that as a party aggrieved has remedies at law, a court, acting as a court of equity, has no jurisdiction to restrain, by injunction, the collection of a tax unlawfully assessed upon personal estate.</p>

This was an appeal, by the owner of a building, from a judgment entered against him in the Sixth District Court.

This was a proceeding under the act for the better security of mechanics and others, passed July 11, 1851, and amended April 13, 1855. The plaintiffs claimed to charge the defendant, as the owner of certain buildings, for the value of labor and materials performed and furnished pursuant to an agreement beween the claimants and one Edward Lee.

The defendant, Gough, being the owner of a lot of land in the city of New York, entered into an agreement with the defendant, Alger, a mason, for the erection of a building. The contract stipulated for the completion of the work at a certain time.

One Henry Peck contracted with the defendant, Gardner, to build a house for a stipulated sum. The work was completed, and the money paid in full. During the progress of the building, the contractor met with a loss, not anticipated when the contract was entered into, and which tended to diminish his expected profits in the'undertaking. In view of this fact, the owner promised to pay him fifty dollars, in addition to the price mentioned in the contract.

The plaintiff exMbited Ms complaint in the Second District Court, alleging, in substance, that in pursuance of an agreement with the defendant, McAllister, and in conformity with a contract between the latter and the defendant, Taylor, the claimant, had performed labor in excavating cellars. And he demanded relief, averring that he had pursued the provisions of the act of July 11, 1851, and had acquired a lien, which this proceeding was instituted to enforce.

<p>The filing of a notice of claim, under the mechanics’ lien law, alleging the performance of work in pursuance of an agreement with a contractor, and in conformity with a contract between the latter and an owner, will not absolutely estop the claimant from prosecuting an ordinary personal action against the owner, and averring therein a direct employment of the plaintiff by the owner.</p> <p>The doctrine of estoppel in pais considered, and authorities relative thereto cited and commented upon.</p>

<p>Action by a material man, against the owner of a bidlding, to enforce an alleged lien, under the act “ for the better security of mechanics and others,” passed July 11,1851.</p> <p>The facts disclosed at the trial are distinctly stated in the opinion of Hn/ron, J., delivered at the general term.</p> <p>The cause was tried before one of the judges of the court without a jury, when the following decision was rendered:</p> <p>“ 1st. That the plaintiff, on the 22d day of June, 1855, acquired a lien upon the premises described in the complaint, of which the defendant was then the owner, in the manner prescribed by law.</p> <p>“ 2d. That the plaintiff furnished building materials of the value of one hundred and forty-two dollars and thirty-three cents to Elias Marcus, the contractor of the said Burk, in pursuance of the terms of a written contract between said Burk and Marcus, dated the 19th day of March, 1855, for the erection of the building specified in the said complaint, by the terms of which contract the defendant was to pay three thousand and fifty dollars, as follows, to wit: one thousand and fifty dollars in installments, as the work progressed, and the balance was to be paid after the deduction of the materials, which were to be paid for by the owner himself, and after the completion of all the work as per plans and specifications.</p> <p>“ 3d. That, although the said Marcus had, prior to the filing of the lien, received from the defendant the amount of installments then due according to the terms of the contract, and had also, prior to the filing of the lien, abandoned the work, and although the defendant had paid a sum for the completion of the building which exceeded three thousand and fifty dollars, including the six hundred dollars paid to Marcus ; still, by the terms of the said contract, there was due from the said defendant, for the said materials, the said sum of one hundred and forty-two dollars and thirty-three cents, which the plaintiff is entitled to recover.”</p> <p>The defendant excepted to the decision upon the following grounds:</p> <p>First. That there was not sufficient evidence given by the plaintiff of the furnishing of the materials, to the contractor, Marcus, to support the finding.</p> <p>Second. Tliat it did not appear by the evidence that there were any moneys due the contractor, Marcus, by the defendant, at the time of the filing of the lien upon the contract between the said Marcus and the defendant for the erection, &c., of the building described in the complaint.</p> <p>Third. That it appeared by the evidence that there were no moneys due the said Marcus from the defendant upon the contract aforesaid.</p> <p>Fourth. That it likewise appeared from the evidence, that the defendant, prior to the acqifiring of the lien by theplaintiff, had paid to the said Marcus all the moneys due upon the said contract.</p> <p>Fifth. That it appeared by the evidence, that the said Marcus, prior to the acquiring of the lien by the plaintiff, had voluntarily abandoned and forfeited his contract, and that the defendant was obliged himself to complete and finish the work.</p> <p>Sixth. That it was admitted that the defendant, in consequence of such abandonment, had paid out and expended a greater sum, for the erection, &c., of the said building,-than the price stipulated in said contract.</p> <p>Seventh. That the defendant is not obliged by the contract to pay sub-contractors for materials furnished, but that the provision in the contract is a right reserved to the defendant as to the manner of payment, which he may waive.</p> <p>Eighth,. That it did not appear by the evidence, that the plaintiff had ever seen or been misled by the said contract.</p> <p>Ninth. That there was no privity between the plaintiff and defendant; and that if the plaintiff is entitled to recover by reason of the provision in said contract referred to, when the defendant would not be liable to said contractor, it must be in a suit brought upon such contract, and not in one brought for the foreclosure of a lien.</p> <p>Tenth. That the plaintiff could not recover where, at the time of filing the lien, there was no legal or equitable liability to the contractor, Marcus.</p> <p>A judgment having been enrolled against the defendant, an appeal was presented by him, to the general term.</p> <p>made and argued the following points:</p> <p>I. It is a fundamental and settled principle of the lien law, that, if the owner has observed good faith, and performed his contract according to its terms, he cannot be compelled to pay, in any event, more than the contract price. (Doughty v. Devlin, 1 E. D. Smith, 639; Crunk v. Whittaker, ib. 647; Kennedy v. Paine, ib. 651; Sullivan v. Brewster, ib. 681; Allen v. Carman, ib. 692; Spaulding v. King, ib. 717; Dixon v. Lafarge, ib. 792; Pendleburg v. Meade, ib. 726; Carman v. McIncraw, 3 Kern. 70.)</p> <p>H. “The operation of the lien law is to transfer to the sub-contractor so much of the contractor’s claim against the owner as would be sufficient to pay the debt of the contractor to the sub-contractor.” (Sullivan v. Brewster, 1 E. D. Smith, 683, 684.)</p> <p>HI. The rights of the sub-contractors have in all possible cases been held to be limited by the rights of the contractors. A forfeiture of the contract has been held to be as fatal to the one as to the other, and the fraud of the owner will not enlarge the rights of the sub-contractor. (Allen v. Carman, 1 E. D. Smith, 692; Linn v. O'Hara, 2 ib. 560, 568.)</p> <p>IY. In this ease, the sub-contractor’s rights are doubly limited. 1. The owner was bound only “ in consideration of the covenants and agreements being strictly performed and kept” by the contractor. 2. The contract expressly provides, that, in case of the contractor’s default to supply sufficient materials, &e., “ the owner shall have the power to provide materials and workmen.”</p> <p>Y. The owner, in the last case, would have become pro hae vice the agent of the contractors, whose right to recover would depend upon there being a balance after the expense had been deducted “ from the amount of the contract.”</p> <p>YI. The payment to be made by the owner for materials was a privilege reserved by him, and but a payment to the contractor. The sub-contractor could not have sustained an action upon this provision against the owner. (Quimby v. Sloan, 2 E. D. Smith, 607; Crystal v. Flannelly, ib. 589.)</p> <p>VIL The lien was not filed until after the contract was forfeited. The contractor’s interest had, therefore, ceased, and the lien binds only such interest. There was then no privity between the owner and the contractor; nothing for the sub-contractor to acquire, and nothing upon which to found the lien. (Allen v. Carman, 1 E. D. Smith, 695.)</p> <p>VIH. The moneys to be paid for materials were not to be paid until after the work was completed, and out of the balance remaining after deducting the installments paid the contractor.</p> <p>IX. There was not sufficient evidence of the sale or delivery of the materials, and no evidence whatever to show when the materials were delivered.</p> <p>made and argued the following points :</p> <p>First. The delivery of the stone at the building of the defendant is abundantly proved. Besides, this as a question of fact has been decided; and this decision the court at general term will not readily review. The defendant offered no evidence to countervail, as he might readily have done, if the stone came from any other source.</p> <p>Second. By the contract the defendant was to retain the price of the materials furnished, and no subsequent arrangement different from that is shown.</p> <p>Thvrd. Marcus, the contractor, was to build the house and furnish all the materials. Of course he was to furnish this stone, among others, and all for the price stipulated, $3,050.</p> <p>Fowrth. The provision that Marcus should furnish all the materials, and that the defendant should retain the money to pay for them himself, amounts to a contract that the defendant should hold the money belonging to Marcus, with which to pay for them himself. This was probably intended as an indemnity against the claims of material men, like the plaintiff, and is a provision for just this case.</p> <p>Fifth. The original contract, properly construed, means that the price of the materials should be withheld at any rate. The price of them was to be paid by the defendant, however. To whom is not important. It was a part of the price for the building, beyond doubt, and due on the contract, and to be paid, on account of the contract, either to Marcus or his creditor furnishing them; and no settlement between them is shown, but only a payment of money on account.</p> <p>Sixth. This excludes the idea that the money paid on the contract was any part of it on account of the materials.</p> <p>The payments made by the defendant were made on account of the contract generally. There is no pretence that they were specifically made on account of materials, and they cannot be applied by the law to a payment for materials, the price of which, by its terms, it was expressly agreed should not be included in the payments stipulated to be made from time to time.</p> <p>The price of the materials, therefore, by the contract, remains unpaid. Marcus furnished them, and it is due to him. A lien having been filed by the plaintiff, it must be paid to him.</p>

Demubbeb in an action prosecuted by the employee of a sub-contractor, to enforce an alleged lien, under the statute of July 11, 1851. Held: even by implication, to extend the right beyond the terms of the sectionjust referred to. H. The remedies created in the mechanics’ lien law are of a purely statutory and extraordinary nature, and the act must be strictly construed.