Volume 40 — Howard's Practice Reports

Appeal by defendant from a judgment entered for the plaintiff in the New York superior court.

This suit was instituted to protect the plaintiffs’ literary property in a picture in oil, painted by the plaintiff Oertel, and by him styled “ The Rock of Ages,” and to prevent the sale of photographic reproductions of such painting by the defendant. A preliminary injunction to restrain such sale, was granted by his honor Mr. Justice Barnard.

On the 24th day of July, 1868, the plaintiff recovered a judgment against James Farthing for $31,931 21, and brings this action to collect said judgment out of certain property which the said James Farthing had theretofore conveyed to one Weber, and which Weber had conveyed to Christiana Farthing, wife of said James, and also out of certain other property which was purchased, after the recovery of said judgment, by said Christiana and her two daughters, Elizabeth J. Weber…

The certiorari was brought to review the proceedings of the county judge of Monroe county, in a matter upon habeas corpus. Upon the hearing, the order of the county judge was affirmed, and judgment for costs ordered against the relator. Motion was then made on behalf of the relator at special term, to set aside the judgment for costs, or to modify the same, on the ground that no costs were allowable or could be awarded on common law certiorari.

Motion to compel plaintiff to elect on which of several causes of action stated in the complaint he would proceed, and to strike out the residue.

The complaint alleged that the defendant, as the successor of the Chicago and Rock Island Railroad Company assumed the payment of a bond issued by the latter, dated January 10th, 1852, and payable July 10th, 1870, that the plaintiff was the owner and holder thereof, and had demanded payment in gold which the defendant refused..

<p>Appeal from order of county court, dismissing appeal from judgment in justices court to county court. The facts are sufficiently stated in opinion.</p>

These are actions to set aside certain alleged fraudulent conveyances of real property situated in the county of New York. On the 2d day of June last, the defendants’ counsel obtained an order to show cause, from his Honor Justice Cardozo, returnable at chambers, why certain parts of the plaintiffs’ complaint should not be stricken out as irrelevant, or not be made more definite and certain.

This was a motion by plaintiff in this proceeding and the judgment debtor of defendant, to dismiss an order for his supplementary examination on the ground that such order was made improperly and without jurisdiction.

<p>Where* on the trial a verdict was rendered for the defendant, and the plaintiff then moved for a new trial on a case, and the verdict was set aside and a new trial ordered, vyith ten dollars costs to abide the event; thereupon the defendant appealed from this order to the general term, where it was affirmed with costs* Upon a second trial the defendant recovered a verdict:</p> <p>Held, that in adjusting defendant’s costs on the last trial, the plaintiff, and not the defendant, should be allowed the costs awarded on the appeal from the order directing a new trial.</p>

Motion to set aside a judgment. Oh the 1st day of Angust, 1868, the plaintiff filed a notice under the mechanic’s lien law. (Sess Laws, 1854, C%.,_402.) Within the proper time he commenced an action under said act, to enforce his lien. The defendant answered, and issue was joined about October 10, 1868. On the 16th of February, 1869, at the Greene circuit, on motion of plaintiff’s attorney, and on consent of defendant’s attorney, the action was referred.

<p>On Habeas Corpus.—Extradition.</p> <p>L In this district, extradition proceedings must be conducted according to the laws of this state, in such particulars as are not specially regulated by U. S. statute, and it is error for a court to reject the testimony of a prisoner on his own behalf and in such a case, the proceedings before him must be set aside, the examinatian com* vnenced de novo and the prisoner discharged from custody under the commissioners final commitment.</p> <p>2. Requisites of complaint in extradition.</p> <p>(a.) The averments of the complaint need only be such as to enable the accused to understand precisely the nature of the charge against him.</p> <p>(b.) Proceedings under extradition treaties may be instituted here, although no warrant against the accused has been issued abroad, and an allegation that such warrant has been issued is immaterial.</p> <p>(c.) Under the Swiss Treaty, no allegation that the crime charged is punishable here with infamous punishment, is required, as it is sufficient that such crime should be subject to infamous punishment in the country where it was committed.</p> <p>3. That the demand for extradition has been made by the supreme power of the demanding country, is sufficiently attested by the production of the president's mandate.</p> <p>4. Under a charge of forgery, it is sufficient to produce certified copies of the pa pers alleged to have been forged, properly authenticated under the acts of congress.</p> <p>5. Various papers, malting part of one proceeding, need not be separately authenticated by the minister.</p> <p>6. Under the treaty with Switzerland, it is sufficient to prove that the crime charged is subject to infamous punishment by the laws of the canton of Berne.</p>

<p>Is it necessary to the due and proper execution of a will, under the statutes of this state, that the witnesses should be requested by the testator to sign their names thereto as witnesses 1</p>

These two actions are similar. Each seeks to restrain the defendant from building an extension to his store in Cobleskill, on the ground that such extension will interfere with the several rights of the plaintiff in respect; first, to a certain passage way; second, to a certain drain; third, to the use of a certain well.

In the court of appeals all appeals are on the same footing, and on the dismissal of an appeal with costs, general costs follow whether the appeal be from an order or a judgment. White agt. Anthony, (23 N. Y., 164,) where an appeal is dismissed with costs, after argument, it will be intended that full costs were meant; if costs of a motion only are intended, it would be so specified, (Webb agt.

This was an appeal from an order of the general term of the superior court of the city of New York, affirming an order of reference. Held: in substance, that, under the allegations of the complaint, indebitatus assumpsit for money had and received would lie; and that the allegations of fraud might be regarded as pleaded as matter of. aggravation. To that we answer, 1.

<p>A bankrupt's discharge from imprisonment (2 JR. S., 32,) obtained before a county judge set aside as null and void, for the following reasons:</p> <p>SsS. The proceedings of the debtor were not had nor his final discharge granted, at a regular term of the county court.</p> <p>25. The term of the county court having adjourned without day pending the pro» eeedings, put an end to them. The subsequent proceedings had before the county • judge, were corct/m non judice and wholly void.</p> <p>35. The account of the debtor's estate presented, was fatally defective, and did not authorize the county court to pioceed in the case.</p> <p>4th. The voluntary proceedings in bankruptcy was a fraud upon the statute, under which the debtor sought to obtain his discharge. »</p> <p>This court has power to review the decision of the county court, for this error, as well as for want of jurisdiction. •</p>

This is an appeal from an order of the general term of the first district, affirming an order of the special term, discontinuing this action without costs. The complaint alleged a cause of action against the defendant, as executor of Charles Coates, deceased, one of the firm of Wait & Coates, for the sum of $3,100, had by that firm to the plaintiff’s use. The answer was a general denial, and a plea of the statute of limitations.

<p>Claims against one defendant alone, and in his individual capacity, cannot be joined in the same complaint with claims against him as trastee, and such claims eannofc either of them, be joined with demands against other defendants.</p> <p>To entitle a father to an inquiry as to the propriety of making an allowance to him for the past maintenance of his infantchildren, he must state a special case, showing the extent of his means at the time such support was furnished, and the particulars of the extraordinary expenditures for the actual benefit of the infants which created an equitable claim in his favor.</p>

This was an action to compel the defendants to issue to plaintiff a certificate for twenty shares of stock; and was tried at the Albany November circuit, 1870, without a jury.

Application under the act, chapter 338, laws of 1858, to vacate an assessment for sewers, on the ground that the corporation had failed to comply with the provisions of the act, (Chap. 381 Laws of 1865,) relative to the making and filing of sewerage district maps.

A commission in- the nature of a writ, de lunático inquirendo was issued in this matter to inquire whether John Shaul was a lunatic or of unsound mind, and mentally incapable of governing himself or managing bis affairs, &c., the jury found that he was of unsound mind, though several dissented.

<p>Appeal from order of special term, awarding costs of action to plaintiff.</p>

This is an action in equity, to settle the affairs of a partnership between the plaintiff and defendant, which has been dissolved by mutual consent. The action being at issue, was by the order of the court referred to a referee to hear and determine the issues and report to the court.

<p>The act of April 13,1857, section three, providing for the giving of an nndertaling on removing a cause from a district court in the city of New York to the court of common pleas, is not unconstitutional, on the ground that the legislature have no power to compel the giving of security upon a mere change of forum. This section affects the remedy only, and does not impair the obligation of a contract or take away any vested right. And the right ot the legislature to provide for and regulate the practice of the courts, is well settled.</p> <p>Where it appears from the complaint, that the court has jurisdiction of the subject matter of the action, it is unnecessary to aver that the defendant resides within the jurisdiction of the court, provided he is served with process therein.</p> <p>Where an undertaking is given in pursuance of a statute, and no demand is required by the terms of the instrument, no such averment is necessary in the complaint, in an action upon the undertaking; but if it were necessary the commencement of the action is a sufficient demand.</p> <p>In a statutory undertaking it is not necessary to express a consideration therein— the statute creates the liability.</p> <p>Where the condition of the undertaking is, “to pay any amount that may be awarded,” it is an original obligation on the part of the defendant, which becomes absolute when the judgment is awarded.</p>

<p>Motion to vacate order of arrest granted by the Erie County j udge. The case is sufficiently stated in the opinion.</p>

This was an action to recover for professional services as an attorney and counsellor at law. ' The affidavit of plaintiff’s counsel, read on the motion to refer, stated that “the trial of the action involved the examination of a long account.” The affidavit of defendant’s counsel, read in opposition, did not deny that the examination of a long account, would be required, but referred to the bill of particulars of plaintiff’s claim in the action, a copy of which was annexed.

The plaintiff, a colored girl of the age of thirteen years, residing with her parents in school district No. 11, in the city of Buffalo, brought this action for the recovery of damages which it was claimed in the complaint, she had sustained by reason of having been forcibly evicted .by the defendant from public school No. 11, of said city.

<p>In an action by the wife against the husband for a limited divorce on the ground of cruel and inhuman treatment, the husband cannot set up as a defense, the adultery of the wife.</p>

Motion to vacate attachment granted upon, the affidavit of the plaintiff, Brown, that the defendant does not reside in the state of New York, but that his house and place-of business is in the city of Hamilton, Canada.

This action was brought to recover the value of a wolf robe and cushion left by plaintiff’s son at the defendant’s hotel on the morning of the 29th day of November, 1867. Said goods were demanded of defendant by plaintiff before suit, and the defendant refused to deliver them or pay for them.

This is a motion by the defendants to dissolve an injunction heretofore granted, restraining the defendant Catherine Cipperly, her agents and servants from cutting and removing wood and timber from the premises occupied by her, situated in the town of Brunswick.

<p>Appeal from the circuit court of the United States for the western district of Texas, '</p>

” The complaint alleged that immediately prior to February, 1868, T. W. Robertson, of London, England, and author of the drama, sold to the plaintiff the exclusive right of performing the drama upon the stage, and printing and publishing the same, within and throughout the United States.

<p>Appeal from the decision of the surrogate of Queens county, denying the probate of the will of Mary Smith, deceased. The facts of the case and the opinion of the surrogate are reported, ante, page 124.</p>

The defendant in this action being a justice of the peace, duly issued a warrantffor the arrest of one James Matteson (plaintiff’s assignor), on a charge of assault and battery. On being brought before the justice, the prisoner demanded an examination which was granted. On such examination the justice held him to trial; when the trial commenced, the prisoner pleaded guilty to the charges in the warrant.

Motion, upon the report of the referee, for final judgment of divorce, on the ground of adultery. The referee reports facts ordinarily requiring a judgment of divorcej and the additional fact that the defendant is a lunatic, and the evidence shows that he was insane—of unsound mind—at the time this action was commenced, and for several years previous. The adultery was committed by the defendant prior to his insanity.

<p>Where the order requiring a judgment debtor to appear and submit to an examination is not served upon him until after the return day specified therein, no jurisdiction is acquired by the subsequent appearance of each debtor for the purpose of raising objection.</p> <p>The objection of a total -want of jurisdiction may be raised at any stage in the proceeding.</p>

<p>There can be no doubt but that one special term has the power, to modify or vacate an order made by another special term.</p> <p>Zf, however, the second application is made on the same or substantially the same grounds as the first, it would be a most indecent exercise of judicial power, to interfere with the first order; yet; it may be done, and there is no known authority to review or vacate such second order.</p> <p>But if the first order was obtained ex parte, or the party on his part, without any fault was prevented from appearing at the hearing, and injustice has been done Mm, it would be the duty of the court to open the default, and to afford to the injured party such relief as it should deem him entitled to, and the granting of such relief cannot be deemed as an improper exercise of power.</p> <p>Where due service of the petition and notice required by the general railroad act, is made upon the owner of land to be taken for a railroad, the court acquires jurisdiction to make the appointment of commissioners to appraise damages, «fee.</p> <p>And another special term, upon motion, has power to vacate the order made appointing such commissioners, and to appoint new commissioners, in its discretion, and such order being discretionary is not appealable.</p>

Facts claimed to be established by respondent. On the 12th November, 1858, James S. Whaley recovered a judgment in supreme court, against Albert Babcock, Richard Skinner and Samuel P. Marsh, for the sum of $1,140 14, damages and costs. In 1867, the judgment was still outstanding, due and unpaid.

<p>A eownty eowrt has authority to order the reference of cases pending therein.</p>

This action was originally commenced in the supreme court of the state of New York, by the personal service of a summons.

The action is on a policy of insurance. On March 21, 1866, the defendants, with three other companies, issued a policy whereby each of the companies named therein, acting and contracting for itself, and in consideration of one fourth of the sum of fifty-two 50-100 dollars to each of them paid, insured L..

I. The material question arises upon the face of the lease. The demise from Scott to the plaintiff was “ for and during the term of one year, with the privilege of five years from the 8th of April, 1868, which term will end at the end of each (either) year if the same is sold any time during said term, without notice,” (The phrase u if the same is sold,” undoubtedly refers to the demised premises.

<p>The courts of the United States have jurisdiction of an action brought by a National Bank, organized under the act of congress of 1864, or one organized under a state law and converted into a national bank under said act, located in one state9 as a citizen thereof, against an individual citizen of another state.</p>

This was an action upon an undertaking of bail given to discharge a defendant from arrest. The complaint alleges that in January, 1869, one William .Barry was duly arrested upon an order of arrest at the suit of the plaintiff herein. That the defendant executed the undertaking required by the Code, and Barry was thereupon discharged from the arrest..

<p>The role is, that if a vessel sink in ordinary sea-going weather, without any supervening cause of destruction, there must be some inherent defect or decay in or about the ship, and that she sank in consequence thereof, and that she was unseaworthy before she left port.</p> <p>En negotiating a contract of insurance the parties are not apon a level, nor do they deal at arm’s length. The insurer is presumed to be ignorant, and the insured informed, in respect to the subject to be insured; but reposes exclusively on the intelligence communicated by the insured. The parties occupying this unequal position, the law exacts of the party holding the position of advantage the utmost good faith and candor in communicating the facts affecting the risk. And the responsibility of the insured is proportioned to his obligation; so that, being, in duty bound to disclose whatever may be material to the hazard, or may enter as an element in the estimate of the premium, if he conscionsly withhold any such material fact the contract is vitiated in its origin, and be can never recover on a contract, which is the offspring of his own fraudulent concealment.</p> <p>Whether in an action upon contract or in tort, the plaintiff is forever precluded from recovery the moment it appears his own wrong or negligence is involved in the injury of which he complains.</p> <p>The value of the thing insured is obviously and essentially material, as well to the risk ran, as to the indemnity to be paid; and if the insured knowingly exaggerate that value and the insurer rely upon the statement of such excessive value la entering into the contract, the former loses all right to legal redress.</p>

<p>A c&'Ctoii judge has power, under the act of 1861, to draw an additional panel of jurors, before the commencement of the trial, from the city box, notwithstanding the provisions of the act of 1870, providing for an additional panel of thirty-six jurors to be drawn from the county box, by the circuit courts and courts of oyer and terminer, whenever a greater number of jurors are required, in addition to the regular panel.</p> <p>While the authority contained in the act of 1870, is complete and ample for all ordinary emergencies, it has not been rendered mandatory upon the courts; but such additional jurors may be secured by the provisions of the act, leaving all other statutes upon the subject unrepealed and in full force.</p> <p>Consequently a verdict rendered by a jury composed in part by those drawn under the act of 1861, does not render the verdict irregular.</p> <p>The summoning of one juror by the sheriff, in place of and as a substitute for another of the same name, who was regularly drawn on the panel, although constituting a gross violation of duty on the part of the officer, is not, of itself, sufficient to render a verdict afterwards rendered by him and the other eleven jurors, who were regularly drawn and summoned invalid, where no actual injury or prejudice to the rights of the party are shown. ,</p> <p>The verdict of a jury will not be set aside as irregular, because one of the jurors was an alien,—an unnaturalized citizen, where the objection was, .not raised and proper challenge made when the jury was drawn. In such case, the parties are concluded, although the fact forming the objection, may not have come to their knowledge until after the trial.</p>

In the matter of the petition of the tax-payers of the town of Kingston, Ulster county, to bond said town for $200,000, to take stock in the Wallkill Valley Railroad Company. The facts are stated in the opinion.

<p>A promise, which involves no benefit to the promissee or a stranger, or no loss or inconvenience to the promisor, does not constitute a sufficient consideration t© uphold a promissory note.</p> <p>An agreement by the payees of a promissory note, therein expressed, to apply the money to be paid by the promisor to a certain purpose, can scarcely be claimed to be a sufficient consideration.</p> <p>But an agreement by an agent of a college, that the college will “hold its doors open on all moral subjects,” held, to be a sufficient consideration.</p> <p>A conditional promise or agreement on the part of the promisee, which is binding when accepted and acted on by the promisor, will support a promise to pay.</p>

Action for personal injury. The plaintiff was about entering one óf the defendants7 cars at Troy, when the brakeman stationed there to see that passengers had procured tickets before entering the car, demanded the plaintiff’s ticket. The plaintiff said he had had no time to procure one. Whereupon the brakeman seized the plaintiff, struck him, and thrust him from the car. The occurrence was in December, 1866. The action was commenced in April, 1869.

<p>It is not proper to choose a near relative of the bankrupt, either as assignee of trastees. When snch a case occurs, it is the duty of the register to appoint the regular assignee, who will be confirmed.</p>

This action was brought to obtain a decree of separation. Before issue was joined, an order was made allowing the plaintiff alimony upendente liteP And also the sum of $250 towards defraying her necessary costs, expenses and counsel fees. The action was never tried.

<p>A common carrier of goods may, by express contract, restrict his common-law liability and in such case he ceases to be an insurer and becomes an ordinary bailee and private carrier for hire according to the terms of the special contract.</p> <p>But he cannot secure a limitation of his liability, either in whole or in part, by a mere notice indorsed upon his receipt, check, or ticket. Such notice, being at most a proposal only for a special contract, requires the assent of the other party to its terms.</p> <p>In the absence of evidence showing that the attention of the person employing the carrier was in some manner called to said notice, and that he assented thereto, or from which his assent can be reasonably inferred, the notice is of no effect.</p> <p>The duty to carry and deliver safely involves the duty to provide a secure place for the delivery, and to adopt proper safeguards to prevent loss.</p>

<p>The rale is well settled, that at lain, the representatives of a deceased joint debtor are not liable upon the joint obligation.</p> <p>And equity will interpose in such case only upon proof or presumption that the note or obligation was made joint by mistake, when it should have been several, and that such a presumption will arise only where the deceased, whose representatives are sought to be charged, was beneficially interested in the incurring of the obligation; never where he is a mere srnety.</p> <p>Where the complaint in such action does not allege that there was any mistake in giving the joint note sued on, and that it appears from the complaint, that the deceased was a mere surety and not beneficially interested in the credit given upon the note, the complaint, on demurrer, is fatally defective.</p>

This was an appeal by the plaintiff from an order of the special term, setting aside an order of reference by consent, in the action—-which was one for a tort

<p>Where the action is one of a class in which the cause of action, and the facts which authorize the arrest, are the same, the court will not, ordinarily, try the merits upon a motion to vacate the arrest.</p> <p>The true rule is, that if the original affidavits make out a prima fade case against the defendant, of a cause of action authorizing an arrest, the court will not set aside the order, except where the proof adduced by the defendant is so clearly preponderating as to leave no reasonable doubt of his success upon the trial. Where, in an action charging npon the defendants a conspiracy to defraud, the evidence against one of them, is altogether too slight to hold him to bial, and a verdict against him upon such evidence the court would be bound to set aside, he will he discharged.</p> <p>But where as to the other defendant, there can be no doubt from the evidence that he committed a great fraud, he will be held to bail.</p>

The said Hogan is, however, to give the said party one week’s notice of his intention to make such sale.” Willoek took possession of the lots, and began building» Subsequently, and in ' December, 1862, Hogan having claimed that Willock had broken the contract, employed as was alleged, the defendant, Fogerty, who is an attorney at law, as his attorney to acquire, or extinguish, Willock’s interest in the lots under the provision contained,in the contract.