Volume 4 — Jones & Spencer's New York Superior Court Reports

The action was for negligence in causing the death of H. L. Lnddington. Evidence was given upon the trial sufficient to prove, if credited by the jury, that the defendants were the lessees or proprietors and occupants of a large warehouse in this city, which was used by them, in their business of storing goods, under and in accordance with the following provisions of an act of Congress, passed March 28,1854, and the succeeding regulations of the Secretary of the Treasury: 1.

<p>The provision made by law to try the title to a public office is exclusive and not cumulative. Whenever it is alleged that a person has usurped a public office, the attorney-general is authorized to institute an action on behalf on the people, to try the right of such person to the office, and in such action the right of any other claimant to the office may also be determined.</p> <p>These provisions furnish the only remedy for the trial and determination of such questions, and they prohibit their trial in any other manner.</p> <p>The defendant, under an appointment by the city comptroller to the office of deputy chamberlain, undertook, by threats, etc., to intrude into and to take possession of that office, and to oust the deputy in possession and doing tho duties of the office under the appointment of the chamberlain, the plaintiff.</p> <p>Jurisdiction ought not to be assumed to oust an officer from an office under the color of title," until his right to such office has been settled in the mode prescribed by law.</p> <p>The intrusion by a stranger into the office or apartment occupied by a public functionary, and his expressed determination to remain there and exercise and perform the duties of the office against the wishes of the incumbent, would justify that incumbent in removing such stranger therefrom, and to use, if necessary, such reasonable force as might be required to eject him therefrom.</p> <p>Semble. A like power exists in an incumbent to exclude any person from attemping to usurp or to exercise any of the functions of his office, under authority not recognized or admitted by such incumbent.</p> <p>Although this power or remedy exists, its exercise might produce confusion, disorder, and serious loss in a public office, and the issue of an injunction as a preventive of such attempts or threats to intrude into or usurp the functions of a public office, is the better remedy.</p> <p>Hdd, That the process by injunction was the proper remedy of the plaintiff, and should be sustained upon the principle that it is a proper substitute for another remedy, which, had it been adopted, might have .produced confusion and disorder in a public office, and perhaps serious loss to the city, if not to the immediate parties concerned.</p> <p>For the plaintiff, until the title to the disputed office should be tried and established by due course of law, as the responsible custodian of the treasury of the city, and of the office in which his official business is transacted, and of the books and papers connected therewith, could properly exclude the defendant therefrom, and with force, if necessary, to prevent the usurpation of the office, or that he could demand the aid of the civil authority to protect the office from any unwarrantable intrusion ; but, instead of asserting his right thus to exclude the defendant, has adopted a measure more conformable to peace and order.</p> <p>The object of the process of injunction is both preventive and protective. It seeks to prevent a meditated wrong, and not to redress an injury, which can usually be done only at law, and then to protect a party against any unlawful invasion of his rights.</p> <p>The general object and use of the process of injunction considered.</p>

The action was to recover from the defendant, a warehouseman, for the loss of merchandise caused by his negligence. Two cases of goods were imported from Paris, and after being entered at the New York Custom-house, were sent to a public store for appraisement. After being appraised, the boxes were sent to the store of the defendant.

Appeal from an order of Special Term, vacating and setting aside an order of reference to take defendant’s affidavit for use on a motion under section 401 of Code,

<p>A. lent B. his note for $500, which was renewed several times for the benefit of B., and was finally renewed by the defendant in a note payable to a firm of which B. was a member, the firm having discounted that note without any knowledge of the note being made for the accommodation of B. This note was renewed several times by the defendant to said firm. Before the last note became due, A. notified B. that he would not renew the note again. When the note became due, B. obtained from said firm its check, payable to the order of A., with the expressed purpose of paying this note, and accepting a new note of A. for the amount, payable to the said firm, as he had done several times before. B. delivered the check to A. , for the purpose of enabling him to take up and pay this note, and without requiring him to give a new note to the firm ; thus, in fact, converting the partnership property to the payment of his personal debt. A. took up and paid the note, with the check, in ignorance of the arrangements between B. and his said firm.</p> <p>Upon the firm bringing suit against A. to recover the amount of the check, as money loaned to him.</p> <p>Held, That when the firm gave the check, it knew, or was bound to know as one of the payees of the note, that, as between A. and B., that B. was bound to indemnify A. against the payment of the note (Horton v. Rogers, 12 Wend. 484; Id. 14; Wend. 576).</p> <p>Under Geery v. Cockroft, and cases there cited (33 Sup. Ct. R. 146), if the firm assented to the check being used to pay the obligation of A. (one of the firm), that A. could apply it to that purpose. In this case the firm’s assent was not only such as they gave, but also such as they authorized B. to give. The check being made payable to the order of A., shows that the firm expected it would go into his hands, and having entrusted B. with it (Story, Agency, note to § 34), the firm held out B. as having unlimited power to dispose and use it as he might please (Story, Agency, § 228, Coddington Bay, 20 Johns. 687 ; Hartfield n. Reynolds, 34 Bari. 613). The firm was, under these circumstances, bound by the action of B. in the premises, irrespective of any special instructions given to him, and the assent or direction of B. as to the application of the check to the payment of the note, was in fact the assent of the firm.</p> <p>■Conclusions of the Court.—Sedgwick, J.—That A. appropriated the firm check to discharge the debt of B., with the assent of the firm, or if otherwise, the firm was botmd to provide for the payment of the note, inasmuch as A. was not liable on it to the firm, and the check was in effect ■used to pay the debt of the firm as endorsers on the note to the holder, •who discounted it, and therefore the assignee of the firm cannot recover ■from the defendant the amount of the note. Babbottb, Ch. J., dissenting.</p>

<p>Where the evidence to some degree tended to show concurrent possession of the property by the judgment debtor, and the alleged purchaser (the plaintiff) of the same, the burden of proof would seem to rest upon the plaintiff, to rebut the presumption of fraud arising upon the relations of the vendor or debtor with the vendee (the plaintiff), and the subject of the sale, and the refusal of the judge under these circumstances and facts to charge the jury, “ That a joint possession by buyer and seller after the sale, will not amount to an actual and continued change of possession, within the meaning of the statute,” was erroneous.</p>

<p>In an action for the claim, and delivery of personal property, the allegation “ That the defendants home become possessed, of, and wrongfully detain from the plaintiff, the following goods and chattels of the plaintiff ” (describing them), is sufficient to allege that the ownership of the property described was in the plaintiff, under the decision of the Court of Appeals (Levin v.</p> <p>Russell, 42 N. Y. 251; referred to, and approved, in the opinion of the court in the case of Schofield v. Whitelegge, 49 N. Y. 259), and therefore should be sustained on demurrer.</p>

This action is brought by the plaintiff, the endorsee, against Griswold, as the maker, and Dickinson, as the -endorser, of a promissory note for $2,000, payable in gold. The date of the note is March 10,1870, and it was payable on the 15th November, 1870. The answer of the defendants alleges that the note in suit was one of four notes made by Griswold and endorsed by Dickinson, three being for $2,000 each, payable in gold, and the fourth for $1,600.

<p>Under an agreement of suretyship, where the surety bound himself that in case default shall at any time be made by his principals in the payment of the rent and in the performance of the conditions contained in the lease (which was the subject-matter of the suretyship) on their part to be paid and performed, that he, the surety, will well and truly pay the said rent or any arrears thereof : and also all damages that may arise in consequence of the non-performance of the covenants, without requiring any notice of any such default, from the lessor, etc.</p> <p>Held, That no demand was necessary to be made of the tenant by the landlord for the rent, before proceeding against the surety on his agreement. The landlord was under no obligation to attempt to collect the rent or enforce the covenants against the tenants (McKensie v. Farrell, 4 Bosw. 204; Chace v. Hinman, 8 Wend. 458; Trinity Church v. Higgins, 48 N. Y. 532).</p>

<p>New trial for excessive verdict.</p> <p>'Where the verdict is clearly not justified by the evidence, and it clearly appears that the jury, in determining the amount of the same, or the value of the property which is the subject of the action, has gone outside the evidence upon the trial, and found a verdict for a larger sum or value than the evidence will justify; the verdict is excessive, and a new trial should be granted.</p>

<p>In an action for the recovery of personal property, the plaintiff, for the purpose of proving the character and amount of the property claimed, and that it was identical in character and amount with property described in. the pleadings and the evidence before the court, was permitted to read in evidence, although objected to by the defendant, an undertaking which • had been executed by the defendant, under section 30 of the Code, to enable him- to obtain from the sheriff, a re-delivery of the property, and also an affidavit of the plaintiff, which was referred to in the said undertaking.</p> <p>Held,—</p> <p>1. That neither the affidavit nor the undertaking was intended to be used before the court upon the trial. Nor did they in any manner affect or concern the issues or the questions involved in the controversy before the court.</p> <p>2. The defendant therefore was no more estopped by the recitals in his undertaking from proving or claiming on the trial, that the property which was taken from him, and afterwards returned to him by the sheriff, was not the same property described in the complaint as the subject-matter of the action, than he would have been by a like statement in any affidavit or paper, made or used in' any other litigation or proceeding dehors this action.</p> <p>3. The statement in the affidavit is too indefinite and uncertain to make the recital in the defendant’s undertaking, referring thereto, full and competent evidence, even as an admission of the defendant, that the whole or any considerable portion of the property described in the complaint, had ever been in his (defendant’s) possession.</p> <p>Van Vorst, J. (concurring opinion), Held, substantially, that the undertaking and affidavit were incompetent and insufficient as evidence of the facts sought to be established thereby, and should have been excluded also. That the plaintiff was, under the facts and circumstances established at the trial, bound to make a demand of the defendant for the property before bringing suit, and a demand being necessary, and not having been alleged nor proved, the plaintiff could not recover.</p>

The main point in this case refers to the counter-claim made hy defendant. The referee has decided that the facts put in evidence do not sustain the counter-claim. The plaintiffs had contracted to deliver a certain quantity of coal to the defendants, but delivered only a part of that quantity. The counter-claim demands damages for this failure to deliver.

The complaint sets forth as follows : “ The plaintiff, by J. Worden Gredney, his attorney, complaining of the defendant, respectfully shows to this court: First.—For a first cause of action. 1.

<p>I. Fbahdulent and False Repeesentations contained in a Pamphlet.</p> <p>1. Action to recover damages for. Bwt'then of proof.</p> <p>1. It lies on plaintiff to prove—</p> <p>1. That defendants caused the pamphlet to be issued and published.</p> <p>2. That it contained false or deceptive statements which were calculated to mislead or deceive the plaintiff.</p> <p>3. That plaintiff was in fact deceived and misled by such statements, and relied thereon.</p> <p>2. Proof as to falsity of statement. What is and what is not sufficient ' to carry a case to a jury.</p> <p>1. What is not.</p> <p>a. A statement in a pamphlet that a company then held a working capital of $50,000, composed of $35,000 cash and $25,000 of stock, is nof sJwwn to be untrue by evidence that at the time of the inception of the company it had no property except certain lands which it had purchased and for which it had issued every dollar of its stock.</p> <p>1. Because it may have realized the amount of such money and stock by selling, leasing, or mortgaging portions of its land, or by granting mining rights.</p> <p>a. It does not devolve on the defendants to prove that the company did so realise, but on the plaintiff to prove that it did not.</p> <p>2. What is.</p> <p>a. A statement that a portion of the land owned by the company consists of 1,400 feet of the celebrated “ Bates Lode,” is sufficiently shown to be untrue and calculated to deceive, to carry the case to the jury by proof that the 1,400 feet in question were not on the Bates Lode proper, but upon what is known as the extension of the Bates Lode.</p> <p>8. Proof as to plaintiff’s being deceived and mislead.</p> <p>1. What facts and evidence so show that plaintiff was not deceived and misled as to justify a 'dismissal of the complaint on that ground. (See opinion.)</p>

This action was brought to recover a balance claimed to be due from the defendants to the plaintiff for rent of a portion of a building, and also for the rent of certain hoisting machinery therein.- Upon the trial it appeared that in November, 1867, the plaintiffs let to Asa D. Dickinson the whole of the store and premises known as bios. 87 and 89 Leonard Street, at the yearly rent of $26,000.

This action is brought upon a joint and several undertaking executed by the defendants and one Sebastian Banzer (against these two defendants only), upon the removal to the Common Pleas of an action from the Fourth District Court, in which this plaintiff was plaintiff, and said Banzer was defendant, conditioned in consideration of said removal and the sum of one dollar for the payment of any judgment which the plaintiff might recover in said Court of Common Pleas.

Controversy pursuant to section 372 of the Code, as appears from the following case submitted. Lucius S. McCulloch claims to recover of the Lorillard Fire Insurance Company the sum of four thousand one hundred and forty-one dollars and twenty-seven cents, and demands payment thereof, with interest, from the receiver above named, who refuses payment and resists the said claim.

<p>In an action relating to a trust fund a motion was made that defendant, the trustee, should pay the money that came into his hands under the trust deed, into court, and that a receiver should be appointed, etc. The defendant in his counter-affidavit, and on the hearing of the motion, stated that he was ready, able, and willing to discharge and perform all his liabilities and duties as trustee, and to give such security as the court might deem necessary.</p> <p>The court deemed security necessary, and made an order to that effect.</p> <p>Held on appeal, That it having been left to the discretion of the court by the defendant, to direct the giving of security, the order cannot be reviewed on appeal.</p>

The facts developed upon the trial of this action are as follows: On the evening of April 26, 1871, Mr. A. D. Putnam, in company with Mrs. and Miss Duval, took a car of the defendants at Eighth Street, intending to go to a church in Forty-sixth Street. They took seats on the left-hand or westerly side of the car, towards the front—Mr. Putnam first, then Miss Duval, then her mother. Between. Fifteenth and Sixteenth Streets, Foster jumped on the front platform of the car.

• Reargument of an appeal from a judgment heard. April General Term, 1873. The appeal from the judgment in this case was argued, at the late January General Term (1873). The action was to restore a policy of life insurance, which was claimed by the insurers to have lapsed, by the omission of the insured to pay the stipulated premium within the agreed time.

<p>In an action for malicious prosecution, the plaintiff was allowed to testify on the trial, under the defendant’s objection to statements that he the plaintiff made to one Martinott, a police officer, when the defendant was not present, nor did it appear that Martinott had communicated the statement to defendant before he had made his affidavit and complaint against the plaintiff.</p> <p>The defendant excepted to the ruling of the court admitting this testimony.</p> <p>The defendant was examined as witness on the trial, and was asked if he made the affidavit and complaint in good faith, believing that everything stated in the same was true. Plaintiff objected to the question and to any answer to the same, and the court sustained the objection, and the proposed testimony was excluded, and the defendant excepted.</p> <p>Held, That both of these exceptions were well taken, and the court below erred in the reception of the first testimony and the exclusion of the latter.</p> <p>The principles and rules relating to actions for malicious prosecution reviewed in the opinion of the court, VAN VOBST, J.</p>

Exceptions directed to he heard in the first instance .at the General Term. The facts in the case and points .reviewed appear fully in the opinion of the court.

<p>On the 30th day of July, 1862, one Samuel C. Reed recovered a judgment against one Philip Nussbaum, for §1,545.10. Afterwards Reed commenced an action to recover the amount of said judgment from Nussbaum and one Allerton. In this action, Reed was unsuccessful, and Nussbaum recovered a judgment for his costs of §207.75, January 17, 1865. Reed appealed to the General Term, and the judgment was affirmed; Reed appealed to the Court of Appeals, and the judgment of the General Term was affirmed. May 30th, 1871. The costs of the appeal to the General Term was §77.81, and to the Court of Appeals, §202.53; the total amount of the three judgments being $624.48. On the appeal to the Court of Appeals in the last-named action, the defendants in this action became the sureties in the undertaking on appeal, for Reed.</p> <p>On Febuaxy 19th 1866, Reed assigned his judgment in the first action against Nussbaum for §1,545.10, to the defendant Chester. On January 10th, 1865, Nussbaum assigned to this plaintiff all his right, title, and interest in or to any costs that might be recovered by Nussbaum, and on June 27, 1871, he assigned to plaintiff all his right and interest in or to the undertaking, given by the defendants on the appeal. The plaintiff had been the attorney, with one Maclay, for Nussbaum in the action, and had an assignment from Maclay. The plaintiff brings this suit on the undertaking to recover of the defendants their several judgments for costs.</p> <p>The defendant Chester seeks to set-off his judgment against Nussbaum, that was assigned to him by Reéd against his, Chester’s, liability on the undertaking.</p> <p>The plaintiff claims that he had an attorney’s lien for these costs, and the former judgment was not a valid set-off to the same.</p> <p>Meld, That the judgment was a valid set-off, and the defendants are entitled to the same also. That the plaintiff became the owner of the judgment in favor of Nussbaum, and of the bond, by the assignments of January 10, 1865, and June 27, 1871, and cannot be considered as having a claim or lien as attorney upon the same that is not subject to this set-off. It cannot be held that a party has a lien upon what is his own.</p>

<p>Motion for a reargument made by the defendant Grant.</p>

This was an action upon an undertaking given pursuant to section 335 of the Code, to stay execution on a judgment pending an appeal to the Court of Appeals. Held: at General Term, that they were jointly as well as severally liable, and therefore the damages need not be severed (Irvin v. Wood, 4 Rob. 138 ; Irvin v. Fowler, 5 Id. 482; see Robbins v. Mount, 4 Id. 553 ; Eakin v. Brown, 1 E. D. Smith, 36).

<p>The defendant, an attorney and counsellor at law, obtained from his client, the plaintiff, a satisfaction of a bond and mortgage made by him for the sum of $3,000, as payment for services that had been, and were to be, rendered to the plaintiff in and about the settlement of the estate of her deceased husband. Neither at the time of the receipt of the $3,000 bond and mortgage, by defendant, nor afterwards, did defendant render service of any moment or importance, and after the receipt of the satisfaction he engaged in the service and interest-of other persons hostile to the plaintiff, and refused to act for and in the interest of plaintiff. Plaintiff sues to recover damages for a breach of his contract. The jury found a verdict for plaintiff for the amount of the bond and mortgage and interest.</p> <p>Edd, on appeal to General Term, If it was proper for the defendant to advise the plaintiff to pay, and for him to demand so large a considtion in advance, for services to be rendered by him, in her interest, then, he should at all times have held himself in readiness to render them, dis-embarrassed from all complication with others, and take no position against • her, and should not appear as attorney and counsel for parties litigating with her in relation to her rights or claims under the will upon the estate of her husband.</p> <p>When defendant accepted a retainer from parties that were hostile, or claimed to be hostile to plaintiff and her interests in the estate, he violated his agreement with plaintiff, and absolved her from all responsibility under the contract, unless for the value of services rendered before the bond and mortgage was satisfied; and having failed to prove the value of these services, the ruling of the court and verdict of the jury cannot be disturbed.</p>

This action was against the defendant as a stockholder of an express company, to recover the value of property sold and delivered to the company. An action for the recovery of the demand was commenced against the company, and a judgment obtained upon which an execution had been issued and returned unsatisfied.

Motion to dismiss an appeal to the General Term from a judgment entered upon the report of a referee. The facts sufficiently appear in the opinion.

<p>Married Women.—Acknowledgment of Deeds by.</p> <p>1. Act of 1849, chap. 375, as affected by act of 1860, chap. 90, and act of 1863, 'chap. 173.</p> <p>1. Since the act of 1849, the acknowledgment of a married woman need not state that she on a private examination, separate and apart from her husband, executed the instrument freely and without any fear or compulsion of her husband.</p> <p>а. The effect of the act of 1849 was to repeal the provision of the Revised Statutes which required married women to acknowledge an instrument in the above manner, and that such manner of execution should appear by the commissioner’s certificate of acknowledgment.</p> <p>б. Acts of 1860 and 1863. These acts neither singly nor taken together repeal the act of 1849, or impair its efiect in this regard.</p>

<p>Promissory Note.—Negotiable Paper.</p> <p>1. Principle, that where a note has been stolen, or obtained by fraud or duress, or fraudulently misapplied or diverted, the holdei', in order to recover, must show that he is a boná-Jide holder for value,</p> <p>HAS HO APPLICATION</p> <p>where the defendant (being the maker) defends on the ground that the note was given to A. for the purchase-money of certain property sold byA. to him, which A. represented belonged to himself, but which did not in fact belong to A., but belonged to B., for whom A. was acting as agent, and that A. had fraudulently and wrongfully passed the note to the plaintiff.</p>

The facts .sufficiently appear in the opinion of the court. The plaintiff receiving an answer of. tender before suit brought, waives the objection that the defendant has not brought the money into court by going to trial upon the issue ; and if the money was so tendered before suit brought and afterward kept in readiness for plaintiff, and actually brought into court on the trial, the judgment must be for the defendant. (a) . The answer alleges tender. (b) .

This is an appeal from an order denying a motion to set aside an execution against the person. The summons in the action was for a money demand on contract. Held: an action of conversion would lie. \ This case is much stronger. The defendant, when he received .the money, received it for the corporation. He was the only party who could represent them in tills receipt.

The plaintiff, through one Hazard, his agent, and the defendant, made a contract for the sale of three tons of carpet-rags at a certain price cash, deliverable between October 9th and the middle of December ; and by the contract, if the defendant had five tons of the rags, he was to “send them to be shipped” to the plaintiff. The plaintiff lived- in Rhode Island. The contract was made in this city, where the defendant lived and did business.

<p>Appeal by the plaintiffs from a judgment.</p> <p>The facts sufficiently appear in the opinion.</p>

This action was brought to recover damages for injuries sustained by plaintiff by reason of the falling on him of a pile of staves. Evidence was given on both sides as to the cause of the falling, the manner of piling the staves, the custom as to piling and taking down the piles, and as to the acts of the plaintiff on the occasion of his receiving his injury.

The complaint alleged the doing of work, etc.,, as a mechanic upon buildings of the defendant, and that to secure the payment of said sum, and in accordance with the statute in such cases made and provided, the plaintiff did (within three months after the completion of said work, labor, and material being furnished, done and performed) file in the office of the clerk of the city and county of New York (to wit, on or about December 24th, 1872) a notice in conformity with such…

The issues were tried by a referee, who gave judgment for the defendant. The complaint alleges that the plaintiff at the request of defendant did certain work and sold and delivered to him certain goods, worth a certain sum which the defendant agreed to pay to the plaintiff.

<p>Landlobd and Tenant.—Ownebs and Occupants of Tenement Houses.</p> <p>1. Liability for injuries sustained by visitor—when landlord or owner not liable.</p> <p>When there was a stairway leading from the first floor to the cellar, through which the occupants of the house descended to the various portions of the cellar assigned to them, such stairway being immediately behind the stairway leading to the upper part of the building, and the open space at its entrance being provided with a trap-door, which, when shut, covered it, jutting out about two inches into the hallway and rendered the aperture safe ; but there were no other safeguards about its entrance, and a visitor to one of the occupants, on attempting to go upstairs, placed one foot on the ascending stairway and the other in the space forming the entrance to the descending stairway, the same being open by reason of the trap-door not being shut, and thereby fell and sustained injuries.</p> <p>Held,</p> <p>1. The defendant being both landlord and owner, and also an occupant, was not liable, it not appearing either that there was any defect or negligence in the construction of the stairway and its covering, or that when properly used it did not suffice to protect persons using the hallway, and was not all that reasonable care and prudence could suggest, or that defendant left the trap-door open, or caused or allowed ■it to be left open.</p> <p>2. Such landlord and owner is not bound to protect his tenants and their visitors from the consequences of their careless acts in the course of occupancy.</p> <p>3. The tenants are each liable for their respective negligence.</p> <p>4. Pbesttuftion of Negligence.</p> <p>a. In such case there is no presumption of negligence against any particular occupant.</p>

The action was to foreclose a mortgage made by the defendants to the plaintiff. The defence was partial payment and the pendency of another action. Upon the first defence it was alleged that at the time of the execution and delivery of the mortgage in suit, Susan B. Stevenson was the holder of a prior mortgage upon the same premises, made by the defendants, for the sum of fifteen hundred dollars.

<p>I. Fraud—Sale by a Debtor of Bis Property. —Promissory Note.</p> <p>1. What circumsta/nee affords evidence tending to show the fraudulent aha/raeter of a pretended sale and purchase.</p> <p>1. The fact that the purchaser gave inis promissory notes for the purchase-money, is such a circumstance.</p> <p>a. The possibility that the notes might go into the hands of one who, if the sale and purchase were fraudulent, could not recover on them, may properly he weighed by the jury in determining whether the purchase was made by the purchaser in good faith and for a valuable consideration.</p> <p>1. The jury is not to consider the circumstance as conclusive of itself. It is but one fact, to which a proper and not an undue weight should be given.</p> <p>b. This is so, although the purchaser may have given a valuable consideration to some extent.</p> <p>1. Valuable consideration in such case,</p> <p>a. The surrender to the seller of his note held by the purchaser is—</p> <p> 2. Request to charge in the above aspect. </p> <p>a. A request to the court to Charge that if the sale and purchase were made to hinder, delay, and defraud creditors, the notes which were given on account of the purchaser could not be recovered on by the holder, should be granted.</p> <p>1. The defendant is entitled to have the jury instructed that at the time of the giving of the notes there existed a possibility that they would come to' the hands of a holder who could not enforce them if the sale and purchase were fraudulent, so that the jury might consider such possibility in determining from the evidence whether the plaintiff was a purchaser in good faith and for a valuable consideration.</p> <p>5. Request not defective.</p> <p>1. It is not defective in that it does not state the mode in which the jury should use its proposition.</p> <p>3. Ro?' is it defective in that it referred to the rights of a person receiving the notes after the sale was consummated. a. Because it is the possibility that the notes might come into the hands of a holder who could not enforce them that the jury are to weigh, and when that possibility has become a reality, the court may use thefaat in stating the legal rule.</p> <p>1. Possibility becomes a pact when the notes are transferred on account of a part indebtedness, no part of which is satisfied or discharged.</p> <p>2. What is not sufficient to affect a purchaser.</p> <p>1. The mere fact that the seller transferred the purchaser’s notes with a view of placing his property out of reach of legal process, and to compel his creditors to take the notes, is not.</p> <p>A refusal to charge. A refusal to charge such proposition is correct.</p> <p>H. Charge.—Trial.</p> <p>1. Request to charge—what properly refused on the ground that it refers to matters of fact.</p> <p>a. A request to charge that “the sale of an entire stock of goods, which is liable to execution, of a debtor who is embarrassed, or who anticipates that he cannot meet the payment of his debts when and as they become due for the notes of a person of limited responsibility, as compared with the amount of the property transferred, having a long period to run, with the intention of turning over the notes, is void, irrespective of the question of fraudulent intent ” —is properly refused on such ground.</p> <p>2. Exception to charge as to what must appear as against a purchaser to render the transaction void when not well tahen.</p> <p>a. When the charge is “ that when a sale and purchase are made with intent to defraud creditors, the whole transaction is void, provided that intention existed on the part of the purchaser as well as of the vendor.” An exception to the proviso is not well taken.</p> <p>1. The charge is correct so far as it goes.</p>

<p>I. Market Value.</p> <p>1. When there is none at a particular place.</p> <p>a. Where an. article has never been bought or sold at a particular place, and has never been used there, it has no market value there.</p> <p> 2. Actual value of the article at such place, what may he considered in determining. </p> <p>a. Its market value at the next nearest place where it has a market value may be considered for the purpose of fixing its value at said, place, taking into consideration the hazard and risks of transportation and all other facts affecting the question.</p> <p>II. Experts’ Opinions as to the Breed, Stock, and Pedigree op Horses.</p> <p>1. One who has been several years in the business of raising and selling horses, who had on hand over two hundred horses and as many colts in addition, and who had dealt in American horses at a particular place, is a competent witness to testify to the breed of an American horse.</p> <p>2. So also the groom of a horse, who has had experience while in the</p> <p>services of men engaged in buying and selling horses, and while living with professional farmers, is competent to testify as to the breed of the horse. 'A</p> <p>3. All persons who have acquired a knowledge of the breeds of horses from raising and dealing in horses are competent to testify on the subject.</p> <p>III. Sickness op a Horse.—Testimony op a Person not an expert in Diseases op Horses.</p> <p>1. Where the mate of a vessel in which a horse was being transported (he not being an. expert in the diseases of horses) has testified on his direct examination that the horse was sick on the voyage, it is competent and proper to ask him on cross-examination if he saw any alteration in the horse from the time he was out three or four days up to the time he landed in the port of destination.</p> <p>The question does not ask for an opinion on a subject requiring skill.</p>

The plaintiff sues to recover commissions for services as broker in selling twenty lots o.f land in the city of New York for the price of $85,000, and which services are alleged to have been rendered defendant between January 4th and October 19th, 1869. The answer states that the plaintiff was the agent of other parties in respect to the transactions mentioned in the complaint, and denies that he ivas employed by, or acting for, or on behalf of, the defendant.

<p>I. Attorney, Power of, to sell and exchange for stjch Price and on such Terms as to the Attorney shall seem meet certain Lands.</p> <p>1. What is not included in such a power,</p> <p>a. It does not authorize the attorney to sell any of the specified property on the terms that other property of his principal (not included in the power), shall be exchanged for property of the purchaser, and that his principal shall on such exchange' give a mortgage on the property received by him for a certain sum, and that a release of such mortgage shall be taken as a payment of so much on the purchase money of the property specified in the power.</p> <p>1. This, although the property of the principal so to be exchanged with the purchaser for property of his was itself received in exchange for property which the attorney was authorized to dispose of under the power.</p> <p>II. Ratification, what dobs not amount to.</p> <p>• 1. The execution at the attorney’s request of a deed by the principal for the property so to be exchanged, upon information from which he might well draw the conclusion that he was to receive cash, and without any knowledge that the purchase money was to be paid by the taking in exchange property of the purchaser on which he (the principal) was to give a mortgage for a part of the sum at which it was valued in the trade, does not ratify the act of the attorney in contracting the bargain of exchange.</p> <p>III. Application os’ above Pbincifles.</p> <p>When the attorney contracted to sell to the defendant lot A specified in the power of attorney for a certain sum payable in part by the assumption of certain mortgages, and the balance in cash, and the deed of the property was delivered to the defendant, who assumed the mortgages, and paid a part of the cash, and prior to this contract the attorney and the defendant entered into a contract by which the defendant agreed to convey to plaintiff lot B, belonging to him and the attorney, in behalf of the plaintiff agreed to pay therefor by giving the plaintiff’s bond secured by a mortgage on the said B, and conveying to defendant lot C of plaintiff’s not specified in the power of attorney; and the plaintiff, under circumstances not amounting to a ratification, executed a deed (which was never delivered) of lot C ; and at the time of the closing of the sale of lot A the attorney agreed on behalf of the plaintiff that so much of the cash to be paid by defendant as was equal to the amount of the mortgage to be given on lot B should be paid and satisfied by defendant releasing plaintiff from his obligation to give a mortgage on lot B ; and at the time and place fixed for the exchange of lots B and C defendant attended and was ready and willing, and had ever since been ready and willing, to perform on his part, but the plaintiff did not attend, and was not ready and willing to perform, and never has performed.</p> <p>Held,</p> <p>In an action brought by plaintiff to recover so much of the cash payment to be made on the sale of lot A which had not been paid, to which defendant answered, claiming a payment in the above manner, and also damages for the breach of the contract for the exchange of lots B and G that the contracts being separate and distinct—</p> <p>1. The plaintiff was entitled to recover the amount agreed to be paid in cash for lot A, less so much as had already been paid in cash.</p> <p>2. That the defendant was not entitled to recover damages for the breach of the contract relating to lots B and G.</p> <p>TV. Deed.—Clause acknowledging Payment oe Consideration.— Pleading—Evidence .</p> <p>1. The pí'má-facie evidence of payment, furnished by said clause, may be overcome by admissions and averments in a pleading.</p>

This was an appeal from an order directing an attachment to issue against the defendant for a contempt in disobeying an injunction order dated July 7, 1870, made in proceedings supplemental to an execution. The order contained the usual injunction enjoining the defendant from disposing of his property. The proceedings were regularly adjourned to the 30th of August, 1870.

Upon an appeal taken by one Anschutz from a judgment in the Court of Common Pleas against him, in favor of the plaintiff’s assignor, he gave an undertaking with these defendants as sureties. The appeal was from the Special to the General Term.

<p>Appeal from a judgment entered on the report of a referee.</p> <p>The action, as alleged in the complaint, was to recover for work done and materials furnished in the erection of buildings for the defendant, which was alleged to be reasonably worth, etc.</p> <p>It was then alleged that before the completion of the entire work, the defendant forcibly prevented the plaintiff from going on and completing the same, and refused to receive a portion of the same.</p> <p>As a defence, it was alleged that the work was done under a special contract that the work should be completed on or before the first day of November next thereafter, with good materials and in a good and workmanlike manner; that the same was not completed by the time aforesaid, nor was it done in a good and workmanlike manner,, nor with good materials.</p> <p>The referee found as facts:</p> <p>First.—That the plaintiff and defendant, in or about the month of" June, 1870, entered into an agreement between them whereby the plaintiff undertook and agreed with the defendant to do, render, perform, and furnish the carpenters’ work, labor, and materials required necessary and proper for the erection and completion of two buildings, one on the north-east corner of Sixth Avenue and Fifty-fifth Street, and the other next adjoining the same on Fifty-fifth Street, in the city of New York, according to, and in conformity with, certain plans and specifications agreed upon between them, and exhibited by the defendant to the plaintiff, and to have the said work and materials done, rendered, furnished and completed on or before the first day of November, in the said year 1870, in a good and workmanlike manner, and of the kind, quality, and description in the said plans and specifications required, called for, or mentioned ; that for the doing, performing, furnishing, and completing of such work, labor, and materials, on or before the said first day of November, 1870, of the kinds, quantity, and quality so required, and called for by said plans and specifications, the defendant undertook and agreed to pay the plaintiff the sum of twenty-two thousand five hundred dollars.</p> <p>Second.—That the plaintiff, on or about the tenth day of June, 1870, commenced to do work and perform services' and furnish materials under said contract, but failed to complete and finish the same according to the terms of said agreement between the plaintiff and defendant by the first day of November, 1870 ; that up to the tenth day of said month of November, 1870, there was a substantial failure on the part of the plaintiff to finish and complete the said carpenters’ work and materials upon said houses ; that a very considerable portion of the work and materials required by said agreement to be done, performed, and furnished by the plaintiff to the defendant were not in conformity to the said agreement, but were very defective and inferior in quality to those required by said agreement, and were not, so far as they were supplied and furnished by the plaintiff, substantially in compliance with the said agreement.</p> <p>Third.—That the defendant, prior to the first day of November, 1870, had paid to the plaintiff various sums of money, amounting together to the sum of six thousand nine hundred dollars, on account of the moneys agreed to "be paid "by him to the plaintiff for the work, labor, services, and materials to be rendered and furnished by him under said agreement.</p> <p>Fourth.—That on or about the tenth day of November, 1870, the defendant took possession of the said buildings, and finished and completed the same in respect to the work and materials which plaintiff, by his said agreement, had undertaken to do and furnish, at a cost beyond the unpaid residue of the price which the defendant had, by said contract, agreed to pay the plaintiff for a complete performance of his said agreement.</p> <p>Fifth.—That the defendant never accepted the said work done and materials furnished by the plaintiff as done and furnished in conformity to said agreement between them.</p> <p>The referee found as conclusions of law, from the facts so found:</p> <p>First.—That the plaintiff was not entitled to recover against the defendant anything in the action.</p> <p>Second.—That the complaint should be dismissed, and that judgment should be entered herein for the defendant, and against the plaintiff, with costs.</p> <p>The plaintiff’s counsel requested the referee to find that on or before the 9th day of June, 1870, the plaintiff sent to the defendant the following communication, which defendant received, and on the same or the following day notified the plaintiff that he accepted the proposal therein contained, and the said proposal and acceptance constituted the agreement between them, under which both parties acted in the premises.</p> <p>New York, June 9th, 1870.</p> <p>Mr. A. Mead :</p> <p>Sir:—I hereby propose to furnish materials and labor required to finish the carpenters’ part of your two houses, corner of Fifty-fifth Street and Sixth Avenue, for the sum óf twenty-two thousand five hundred' dollars ($22,500).</p> <p>Painting, $900 ) These items to be</p> <p>Stairs and wainscoting, $2,100 >■ deducted from the</p> <p>Tin roofing and cornices, $1,200 ) estimate. A. D.</p> <p>Yours, etc.,</p> <p>ALONZO DUTCH,</p> <p>421, 423 West Forty-second street.</p> <p>The referee declined so to find, and the plaintiff duly excepted.</p> <p>There were other requests to find facts showing a failure by the defendant to perform; and also of an inability of the plaintiff to complete the work by reason of the acts of the defendant.</p> <p>On the trial the foregoing proposal set forth in the foregoing request was offered by the defendant in connection with certain building specifications, and the whole was received in evidence, the plaintiff objecting to the specifications. The defendant also offered a paper purporting to contain the terms of the agreement between the parties respecting the work to be done, etc., but which paper did not bear the signature of either party.</p> <p>This latter paper the referee has found contained the agreement between the parties, which was not performed by plaintiff.</p> <p>From the judgment dismissing the complaint the plaintiff appealed.</p> <p>I). M. Porter, attorney, and of counsel for appellants, urged among other things :</p> <p>The pretended agreement, on which the defence mainly depends, admitted in evidence under plaintiff’s exceptions, never had any vitality.</p> <p>(1.) It was never executed.</p> <p>(2.) The defendant never signed and never offered to sign it, nor to deliver it to the plaintiff for that purpose.</p> <p>(3.) Plaintiff was anxious to have it signed, and offered to sign it on his part, but defendant secretly took it home with him, and admits he did not choose to sign it.</p> <p>(4.) The defendant never assented to it as altered.</p> <p>(5.) Plaintiff had made a complete agreement with the defendant, and had partly performed it, before this altered agreement was made at all.</p> <p>(6.) There was, then, no mutuality and no consideration to bind the plaintiff, because defendant refused to bind himself (Wood v. Edwards, 19 Johns. 205; Tucker v. Woods, 12 Id. 190; Cook v. Oxley, 3 Term Rep. 853 ; Brown v. N. Y. Central R. R. Co., 44 N. Y. 79).</p> <p>As the entire theory of the defence and the report of the referee is mainly based upon this alleged contract, the judgment should be reversed (Collins v. Clark, 54 Barb. 184).</p>

.Appeal By defendant from judgment and from order denying a motion made on the minutes for a new trial. The action was to recover damages for the loss of the plaintiff’s son, a lad of about eight years. Upon the trial the plaintiff failed, by any witness-called and examined on his behalf, to furnish any evidence of the manner in which the child got under the-horses? feet. The car was turning the curve and going-from Eighth into Lewis Street.

Appeal by defendant from an‘order of reference. The complaint alleges that the plaintiff was employed and retained by the defendants’ testator to render, and that he did render, services for'such testator as his attorney and counsel, and in preparing and procuring testimony in a suit expected to be brought, and which afterwards was brought, against such testator.

Exceptions by plaintiff ordered to be heard at General Term. The action was to recover damages for the conversion of a contract for the sale of lands in the State of Pennsylvania. The contract was between Joseph T. Fellows and George ft. ffazewell, the plaintiff’s husband, for the sale of the land by Fellows to Hazewell. A payment of $7,000 to $8,000 had been made on the contract.

<p>I. Check.—Bill of Exchange. —Altered in Amount and Payer’s Name.—Certification of.—Bight, etc., of certifying Drawee and of Holder.</p> <p>1. Aeeeptam.ce, contract of, what it does not guarantee.</p> <p>a. It does not guarantee either the correctness of the amount, or that there has been no alteration in the name of the payee.</p> <p>1. It only guarantees the genuineness of the drawer's signature,</p> <p>• a. This is so whether the acceptance is before or after an alteration.</p> <p>2. Recovery back by the certifying drarnee of money paid hy him on a check, the amount of which had been raised and the payee’s name altered before certification.</p> <p>Mistake of Fact.</p> <p>1. Money so paid in ignorance of the alteration ma/y be recovered back from the person to whom it was paid, as having been paid under mistake of fact,</p> <p>UNLESS</p> <p>the person to whom the payment was made, or those under whom he derived title to the check or bill, received the check or bill in ignorance of the alteration and on the faith of the certification, knowing the check to have been in the state when certified, as when it was received in payment parted with value, or is equally innocent with the certifying drawee, and has parted with value.</p> <p>Therefore,</p> <p>3. Estoppel.</p> <p>1. Where the drawee, after the check or bill has been raised in amount and the name of the payee changed by a party who had no authority to make the alteration, in ignorance of the unauthorized alteration, certifies the check, and the party whose name had been thus without authority inserted in the check as payee thereof, receives the check in ignorance of the alteration, knowing that the drarnee certified it in the condition in which it was presented, and on the faith of the certification parts with value to the full amount of the altered sum, and the drarnee thereafter pays the check or Ull,</p> <p>he is estopped</p> <p>from claiming that the payment was made under a mistake of fact, and from showing that the sum and name of the payee contained in the check were not inserted therein by the drawer, or by his authority, and cannot recover back the money from the payee, who so receives the check or one lawfully claiming under him:</p> <p>4. Maxim.</p> <p>1. Where one of two innocent persons must suffer, the loss should fall on the one who has been chiefly instrumental in producing it. a. This maxim applies to such a case, and under it the drawee cannot recover.</p> <p>II. Certification of a check by a bank is equivalent to an acceptance of a ■bill of exchange by the drawee.</p> <p>1. The obligation is the same in the two cases.</p>

In this case judgment was recovered and docketed against the defendant, on November 30, 1863. The defendant appealed to the General Term, and the judgment was reversed and a new trial ordered by an order made December 31, 1864. The plaintiff appealed from said General Term order to the Court of Appeals, which court reversed the said General Term order and affirmed the judgment recovered and docketed November 30, 1863.

This action was brought to compel the defendant to transfer to the plaintiff two hundred shares of defendant’s stock upon its books, and to have the plaintiff declared to possess and enjoy all the… Held: and was so held at the several times of the demand for the transfer thereof alleged in said complaint, and that the refusal to make such transfer was in consequence of such indebtedness of said Bradley to said corporation; of all of which the plaintiff had notice.

Appeal by defendant from judgment entered on decision of a single judge on a trial by the court without a jury. Plaintiff kept an account with defendant, and was in the habit of depositing with defendant for collection checks drawn by one Merritt on the Port Chester National Bank, under an agreement by which plaintiff was to pay defendant one-eighth of one per cent, on the amount of all checks so deposited to cover the expenses of the collection thereof.

The facts appear fully from the points and opinion of the ■court. 1. Appeal from order denying motion for appellant’s discharge from imprisonment. Motion made under and pursuant to section 288 of the Code, amendment, 1870. 2. Order not in discretion of judge.

In this case the court directed a verdict for plaintiffs» and ordered the exceptions to be heard in the first instance at General Term. The question of the liability of defendants on a bill of lading was the only question litigated on the trial. The facts appear sufficiently from the opinion of the court.

The only points for a reversal are based upon the defendant’s application to remove the cause to the U. S. Circuit Court, and the denial of the court of the same, and the subsequent trial of the cause.

This is an appeal from a judgment entered in favor of the plaintiff against the defendant on the report of Hon. Gilbert M. Speir, referee, on the 24th day of May, 1873, for $2,076.56 damages and costs.

<p>In an action upon a bill of exchange where it appears that it was drawn by a foreign (Pennsylvania) corporation upon its treasurer in the city of New York, duly accepted, and subsequently endorsed by the defendant, (the payee named in the bill), and afterwards discounted by the plaintiS for the corporation, the usual presumption of the law as to negotiable paper of this kind, namely, that the making, acceptance, transfer, and endorsement were for legal and sufficient consideration, and that the defendant, the endorser, had a cause of action for the face of the bill against the maker, is applicable.</p> <p>The simple fact appearing in the case that the bill was discounted for the company after endorsement, does not raise a presumption that the bill was made and accepted by the company without consideration, and for the purpose of raising money, and was endorsed by the defendant for the accommodation of the company.</p>

The defendant, James O’Brien, sheriff, appeals from a judgment of $2,160.32 entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes. The plaintiff appeals from a judgment entered in favor of the defendants Long and Nash upon the dismissal of the complaint as against them at the trial.

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

Verdict under the direction of the court, and the exceptions ordered to he heard in the first instance at the General Term. The facts and points decided in the case appear fully in the opinion of the court.

<p>A contract or agreement between the assignor of the plaintiff and the defendant, by The Groton Aqueduct Bowrd, for paving a portion of Third Avenue, authorized the said board to appoint such person or persons as they shall deem necessary to inspect the materials fimmished and the work done under the agreement.</p> <p>The contract also provides that the contractor shall not be entitled to receive payment for any portion of the work until the same shall be fully completed according to the agreement, and such completion duly certified by the inspectors employed on the work, and by the water surveyor;</p> <p>Held, That unless the plaintiff produced on the trial the certificate of the inspectors and the water purveyor provided for in the contract, or satisfactorily accounted for or excused their production, he could not recover.</p> <p>It was the duty of the Croton Aqueduct Board to keep inspectors on the work, and when the work was fully completed according to the contract, to cause said inspectors, on the application of the plaintiff, to furnish Mm such certificates, and if there was any unreasonable or obstinate refusal on the part of said.board to perform tMs portion of the contract, such refusal would constitute an excuse for the non-production of the inspector's certificate.</p> <p>When the strict performance of a condition precedent is unreasonably prevented by the other party, its ijerformance should be excused (see cases ■ cited in the opinion of the court).</p> <p>Tn the case at bar, the opinion of the court indicates that the absence of the certificate of the inspectors might be excused under the proofs, but the non-production of the certificate of the water purveyor was not accounted for nor excused, and was a fatal objection to the plaintiff’s right of recovery.</p> <p>The water purveyor did not hold his appointment under the Croton Board, but was an independent officer appointed by the Board of Alderman (Laws of 1849, p. 539, § 7).</p> <p>He was the chief officer of a distinct bureau, and charged with specific duties, and among others, with the superintendence of paving, repaving, and repairing streets (Hoffman's Laws of N. Y. vol. 1, p. 378).</p> <p>The office' of water purveyor was not abolished by the provisions of the act reorganizing the local government of the city of New York passed April 5th, 1870, hut its continuance recognized by that act.</p> <p>The right of the plaintiff to demand and receive payment for the work performed under the contract depends upon the production of the certificate from the water purveyor, and the stipulation in the contract in respect thereto is binding and obligatory upon the plaintiff.</p> <p>The certificate of the Commissioner of Public Works provided for in the Laws of New York, 1871, vol. 3, p. 1335, and that of the commissioners under chapter 580 of the Laws of 1873, vol. 3, p. 1413, to the effect that they are satisfied that no fraud has been perpetrated in relation to said contract, or in the performance thereof, will not render the production of the certificate of the water purveyor unnecessary.</p>