Volume 40 — New York Reports

Ebbob to the Supreme Court in the fourth judicial district, to review a judgment affirming a conviction of the plaintiff in error; for subornation of perjury, at the Saratoga County Sessions, on the 20th of June 1867. One Rose was indicted before the same court, in February,. 1867, for grand larceny.

This was an appeal from, a judgment ordered by the General Term of the Supreme Court in the seventh judicial district, upon a verdict for $10,000 in favor of the plaintiff, against the defendant, for injuries sustained by him from alleged negligence. The facts of the case are sufficiently stated in the following opinion of Geoveb and James, J. J. Geo.

This was an action for the negligent killing of the plaintiff’s intestate by the defendants’ servants at Troy, and was considered and decided, upon a re-argument, at the same time with the Beisiegel case. The facts are fully stated in the opinion of Woodruff, J.

The action was brought to compel the specific performance of a contract to convey land, or to recover damages alleged to have been sustained by the original plaintiff, by reason of the defendant’s refusal to perform.

These were actions brought separately by William Yernon King, Anna Henrietta King, and Arthur King, the three children of Charles W. King, deceased, against the surviving executor and the… Held: that the conduct of the executors was in good faith, and without fraud; the children must, therefore, reject all or none of the investments; and that the executors were entitled to commissions.

This was an action, brought by the plaintiff’s testator, George .Merry, to recover the possession of the canal boat “ O. H. Smith,” seized at Syracuse, by the defendant Benson,. sheriff of Onondaga county, under an execution issued upon a judgment in favor of the defendants Sweet against one Jones. It appeared that -the original plaintiff, George Merry, built the boat, and, ..in .September, 1861, sold one-half of her to Jones for $250.

The plaintiff in error, instituted proceedings in one of the district courts of the city of FTew York, for the purpose of removing the defendant from the possession of certain premises, occupied by him, on the ground that he held over, after the expiration of his term, without' permission of his landlord. The defendant in error, by affidavit, denied that .he held or occupied the premises, as the tenant of the plaintiff in error.

This was an action in the nature of a quo wa/rrmito, charging the defendant with having usurped and unlawfully intruded himself into the office of major-general of the second division of the National… Held: that the appointment-thus made, without the concurrence of the senate, was void’ and ordered judgment for the plaintiff.

This is an appeal from an order of the General Term of the Supreme Oourt in the first judicial district, affirming an order of the Special Term setting aside executions issued against the persons of the defendants. The judgment was taken hy default, for want of an answer, in favor of the plaintiffs, against the defendants, for $1,726.38.

This was an appeal from the order of the General Term of the Supreme Court, of the second judicial district, affirming an order of the City Court of Brooklyn, punishing the sheriff of Kings county, hy fine, for contempt, in refusing to ohey an order, issued from that court, commanding him to arrest and imprison one Gaston, for contempt, in neglecting to pay certain sums for alimony, ordered to be paid in an action brought by the relator, his wife, for divorce.

This is an action to foreclose a mortgage given for the purchase price of the premises described therein. It is defended on the ground that a portion of the land conveyed was occupied under a tax lease from the mayor, aldermen and commonalty of the city of New York. Defendants also sought to counter claim damages sustained by them in consequence of a breach of covenants on the part of plaintiff.

<p>The plaintiff’s intestate was a passenger upon the cars of the defendant, from B. to B., by the train leaving B. for the east, in the evening. He had asked the conductor to awake him, if he should he asleep, when the train reached B. and the conductor had promised to do so. The train, however, arrived at and left the station at B., before the plaintiff’s intestate awoke, and upon his then requesting the conductor to stop the train, the latter instructed him to go on to ÜST., where, he informed him, that he would meet the train hound west, and could return in it to B. The train reached N. at 3 a. hi., and stopped at the west water house, about 350 feet west of the station. The train, which the plaintiff's intestate was to take, was standing at a water house, about 300 feet east of the station.</p> <p>Hpon the stopping of the train he was in, the plaintiff’s intestate immediately got out, without inquiry as to whether it would proceed to the station there, and walked, between the tracks, towards the other train, with the intention of getting in. It was a very dark night, and there were no lights at the station house, none anywhere visible, except in the trains themselves, distant four or five hundred feet from each other. He passed by the station house, but made no inquiry whether the other train would stop there, after leaving the east water house. Immediately after passing the baggage car of this train, which he was going to enter, and just before he reached the first passenger car, he fell into an excavation, close to the track, where there had formerly been a cattle guard, and was seriously injured. It appeared that the station house was not kept open for that train, and that passengers at N. occasionally-got on hoard of it at the Waterhouse, hut whether, after leaving the water house, it always stopped at the station house for passengers, when there were any, was a disputed point in the evidence. In an action brought to recover, by the plaintiff’s intestate, for these injuries—Held, that it was a proper question for the jury, whether, under all the circumstances, he was guilty of negligence, in leaving the train, at the west water house, and attempting to reach the westward bound train, at the east water house, before either had arrived at the station, and without inquiry as to whether either would stop.at the station, after leaving the water house. Held also, under the circumstances the jury were authorized to find, that it was negligence in the defendant to - leave the ground in so dangerous a condition, at the point where the plaintiff was injured, there being evidence that passengers from 2ST. often got into this train, while standing at the water house, near the dangerous place.</p> <p>Wherever passengers are'accustomed to be received upon a train, whether at the station house, at the water tank, or elsewhere, railroad companies are bound to keep in a safe condition for transit, the ordinary space, in which passengers go to and from the train, and the latter have the right to assume, that the ground adjacent to the cars, within the limits in which persons necessarily and naturally go to and from them, admits of their getting safely out and in, even in a dark night.</p> <p>It seems, that railroad companies are not justified in so locating their station houses for the landing and receiving of passengers, as to be within such immediate vicinity to cattle guards, however necessarily constructed, as to be unsafe for passengers. Woodruff, J.</p>

This was a certiorari to review the proceedings of the hoard of assessors of the city of Albany, in assessing, for the year 1868, “ Thomas W. Olcott, and Joseph O. Y.… Held: is not more than equal to the amount of the debt due to the city of Albany. That the Western Railroad Corporation, and the debtor of the city of Albany, is a corporation created by, and existing under the laws of the State of Massachusetts, and is not a resident or citizen of the State of New York.

<p>A court of equity will not interfere to restrain, by an injunction, commissioners of highways from removing a fence, certified by a jury of freeholders, summoned in accordance with the provisions of the Revised Statutes (I B. S., 522), to be an encroachment on the highway.</p> <p>If any error were committed by the jury, in their finding, or in the proceedings under the statute, it can be reviewed by certiorari, and corrected.</p> <p>If these proceedings were without jurisdiction, and void, no case for equitable cognizance is made out. If the party complaining is disturbed in his possession, or the commissioners attempt, themselves, or through agents, the removal of his fence, he has his action of trespass against the wrong doer, for all damages he may sustain. His remedy is perfect at law.</p>

This action was brought to recover damages for injuries .sustained by the plaintiff, by the overturning of a stage sleigh employed by the defendant, for the purpose of conveying passengers to and fro between the village of Schaghtiuoke Point, and the Schaghticoke Station, on defendant’s railroad, distant about a mile from the village.

It was an appeal from a judgment of the General Term of the Supreme Court, in the eight judicial district, affirming a nonsuit of the plaintiff, granted at circuit. The action was upon a guaranty. August 18, 1857, Frederick Root executed his hond, and a mortgage, on land in Badaxe county, Wisconsin, to Willard Herrick, to secure the sum of $300, and interest, in three equal amounts, annually. The first payment was to be made November 1, 1858.

This action was brought to obtain a perpetual injunction against the defendant, restraining it from diverting the waters of a portion of the Wynant’s kill, in the city of Troy, along the land of the plaintiffs, and to compel the defendant to restore to their natural bed or channel, the waters of the kill, diverted by the defendant. The complaint also asked for damages sustained by reason of the diversion of the water, and for general relief.

. This was an appeal from the judgment of the General Term of the Supreme Court, in the seventh judicial district, affirming the judgment for defendants,' entered upon the verdict of a jury in their favor.

Appeal by the plaintiff from an order of the General Term of the Supreme Court in the second judicial district, granting a new trial and reversing judgment for the plaintiff.

This was an appeal from the judgment entered hy direction of the General Term of the Superior Court of New York, upon a verdict ordered for $10,516.08, in favor of the plaintiff, being a portion of the freight unpaid, of the steamer Philadelphia, upon a voyage from New York tó New Orleans and back.

These actions were 'brought against the city of New York hy the respondents, respectively, as assignees of portions of the compensation claimed to be due one Woodruff, for services performed hy him under a contract made by him on the 12th of June, 1858, for the removal of the night soil from the sinks and privies in that city.

This was an action to recover damages for the breach of an implied warranty of title to a horse. The plaintiff testified that in December, 1852, he bought a horse of the defendant, and paid him therefor eighty dollars; that he afterwards sold the horse, which subsequently passed through the hands of several persons.

On the twenty-fifth and sixth of May, 1860, eight different judgments were recovered by as many different persons, against Charles E. Sowle, the rolls in which were filed, and the judgments docketed in the county clerk’s office of Erie county.

This is an appeal by tlie plaintiff from a judgment of the General Term in the fifth judicial district, affirming judgment in favor of the defendant, upon the report of a referee. The action was for specific performance of a contract to convey a lot of land in Brown ville, Jefferson county; and the dispute was as to the amount the defendant was entitled to demand as a condition of his giving the deed. - The facts are fully and particularly stated in the opinion of the court.

<p>A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor.</p> <p>The plaintiffs sold to F. a yoke of oxen, and it was agreed that the oxen were to remain the property of the plaintiffs until they should be paid for by F., the latter in the meantime having possession. F. afterwards, and before he had paid for them, sold the oxen to the defendant, who paid a full price and bought in good faith, without notice of the plaintiff’ rights,—Edd (James and Mubbay, JJ., contra), that the defendant acquired no title as against the plaintiffs.</p> <p>Wait v. Oreen (36 N. Y., 556) distinguished.</p>

General Term of the fourth district, affirming. an order of the Special- Term, punishing the defendants as for a contempt.

<p>An order of the General Term of the Supreme Court, reversing an order of the Special Term obtained in the action adjudging a party guilty of a contempt of court in violating an injunction order, is not appealable to this court before final judgment.</p> <p>Whether an appeal would lie by a party from an order affi'ming an order of Special Term punishing him for contempt, qiwre ?</p>

Action of slander for words spoken by defendant, of plaintiff, Sarah Coleman. After a verdict for the plaintiff, a motion was made at Special Term by defendants for a new trial on case and exceptions, which was denied. Defendants appealed to the General Term. After hearing at General Term, the court made its decision, in these words: “ New trial denied.” The plaintiffs then entered judgment in the action.

Appeal by the defendant from an order of the General Term affirming an order of the Special Term refusing to set aside a judgment for the plaintiff for irregularity.

On the first day of July, 1857, the plaintiff bought a draft of the defendant, who was a hanker at Olean, N. Y., drawn by the latter on Griggs & Lathrop, 35 Wall street, New York, payable at sight to… Held: when the case was before it on appeal from a former trial, that the plaintiff was entitled to recover upon the draft, and granted a new trial.

Eebob to the Supreme Court (1st judicial district), to review an affirmance there, of a conviction of the plantiff in error, in the Court… Held: the said John Abrahams in and upon the abdomen of him the said John Abrahams, then and there willfully, feloniously, and of his malice aforethought, did strike, stab, and cut, giving unto the said John Abrahams then and there with the knife aforesaid, in and upon the abdomen of him, the said John Abrahams, one mortal wound, of the…

This action was brought to compel the defendant to convey tó the plaintiff/ two lots of ground in' 116th street, between the 8th and' 9th avenues, in the city of blew York.

The action was brought to compel the specific performance by the defendant of a contract alleged to have been made by him for the conveyance of his farm, situated in the city of Troy and town of Forth Greenbush, to the plaintiff. The following facts appeared upon the trial: The farm in question is owned by the defendant, who, with his wife, had resided on it, at the time of the trial, for twelve years.

An assessment was made by the defendant for the purpose of raising the money necessary for the payment of the ,expenses of grading and paving Lafayette avenue, from Bed-ford to Division avenue, in the city of Brooklyn. By this assessment lot forty-five, on the assessment map, was assessed the sum of $893.62, and lot sixty was assessed the sum of $1,100.43, as the amounts they were severally deemed benefited by the improvement.

The action was brought to set aside a fraudulent assignment made by Andrew Beiser, on the 6th day of January, 1857, to the defendant, Henck. On the 27th day of January, 1857, one Dolan recovered a judgment against Beiser, for the sum of $201.60; and execution having been returned unsatisfied upon that judgment, and supplementary proceedings being thereupon instituted, the plaintiff was, on the 4th of March, 1857, appointed receiver.

The action was for money paid under a mistake of fact. The following are the facts as found by the judge: On the 30th of J anuary, 1854, the Huguenot Bank duly recovered three several judgments in the Supreme Court, viz: One against Nicholas Elmendorf, William Hasten and Marius Schoonmaker, for $2,659.29 ; one against N. Elmendorf and M. Schoonmaker, $2,661.00; and the other against Nicholas Elmendorf alone, $1,031.69; amounting in all to.-$6,351.98; which judgments were…

<p>A married woman during coverture made a will disposing absolutely of all her property. Children were afterwards bom to her, who survived her and were left at her death, wholly unprovided for and unmentioned in her will.—Reid, nevertheless (Grover and James, JJ., dissenting), that the devises and bequests of the will remained fully operative, unrevoked and unaffected by these events.</p> <p>The provision of the (Revised Statutes (§ 49, art. 3, title 1, chap. 6, part 2d), that, “ whenever a testator shall have a child bom after the making of his will, either in his lifetime or after his death, and shall die leaving such child so after bom, unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, eveiy such child shall ' succeed to the same portion of his father's real and personal estate as would have descended or been distributed to such child if the father had died intestate,” has not since the act of 1849, giving to married women the right to devise and bequeath their property in the same manner as if they were unmarried, become applicable to them; nor are their testamentary dispositions limited by or subject to it.</p> <p>Its interpretation in this respect, is in no way affected by the 11th section of the act of Dec. 10th, 1828, entitled “ an act to amend the Devised Statutes,” providing that when in any statute any party or person is described'or referred to by words importing the masculine gender,females as well as males should be deemed to be included, unless something in the subjeqt or context is repugnant to such a construction.</p>

' Appeal from a judgment of the General Term of the Supreme Oourt in the first district affirming a judgment in favor of the plaintiff on demurrer to the complaint.

The complaint alleges that the defendant, being sheriff, claiming to act as such, under color of several executions alleged to have been issued against the property of Henry J. Kerner, wrongfully, with force and arms took and carried away certain specie and gold coin of the United States, of the amount and value of $1,000, the property of the plaintiff.

The action was brought to recover damages for a breach of contract. It appeared upon the trial of the cause, that in June, 1861, the plaintiff made a contract with the defendant, at New York city, in writing, as follows: New Yoke, Jwie 8,1861. Mr. Daniel Messmoee, Ho. 23 William Street: Dear Sir—We will fill your order for 100,000 lbs. of Minie bullets—58 calibre, IT.

The action was brought under section 232 of the Code, by the plaintiff, as sheriff of the county of New York, holding an attachment against the property of Everett & Jones, to recover the amount of a debt alleged to be due from the defendant to them.

The action was for trespass to land. The complaint stated the incorporation of the defendant, the plaintiff’s ownership of the locus in quo, and averred that the defendant unlawfully, wrongfully and forcibly entered upon the premises owned by the plaintiff, took forcible possession thereof, removed the fences, dug up the soil, and threatened to make a highway, The answer contained a general denial, and also alleged that the land entered upon was a public highway, and…

One John. S. Martin, of New York, being indebted to Richmond & Holman, of Erie county, N. Y., on Eebruary 21st, 1863, drew his check on the Ocean Bank, in New York city, for §568.70, payable to their order, and inclosed the same in a letter addressed to them at their place of residence, and deposited the letter in the letter-box of the Granimercy Park House, New York.

z This is an appeal from a judgment of the Superior Court of Héw York, affirming a judgment of nonsuit.

<p>A general assignment for the benefit of creditors assigning “ all goods, chattels, merchandise, hills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt, and property of every name and nature whatsoever ” (of the assignor), “ more particularly enumerated and described in the schedule hereto annexed,” covers all personal property of the assignor, though none was enumerated or described in the specified schedule.</p> <p>A false or erroneous addition in an instrument of transfer will not ho construed to defeat or vitiate the operation of a previous clause fully and sufficiently describing the property intended to be transferred.</p> <p>It is no objection to the validity of a partnership assignment for creditors that it prefers, over other partnership debts, debts not originally contracted by the firm, but which they had subsequently, for a good consideration, agreed to or become liable to pay.</p> <p>A joint note given by partners as individuals, for money used in the partnership business, does not create a partnership debt. (Daniels, J. contra.)</p>

The action was ejectment for the recovery of certain leasehold property in Henry street. Held: and that the entire transaction was void for usury, had no greater or other rights and equities than Herrick himself possessed in respect thereof.

Appeal, from judgment of the General Term of the first judicial district, affirming a dismissal of the complaint at the Circuit. The action was brought upon two promissory notes, of which the following are copies: $75. New York, March 22c?, 1861. Sixty days after date I promise to pay to Bichard Hewitt seventy-five dollars, value received. WILLIAM BYAH, 79 Crosby street. Indorsed. James B. Hewitt. Bichard Hewitt. $75. New York, March 22d, 1861.

The plaintiff brought this action to recover the purchase price of certain land situated in the State of Iowa, which he had offered to convey to the defendant, and the latter refused to receive. This land was sold and conveyed by the defendant to the plaintiff, on the Ith day of April, 1860.

The complaint avers the making of an agreement by the plaintiff with the defendant, Aldrich, by which the plaintiff was to convey to the defendants (Aldrich & Stone) a farm of seventy-five acres in the town of Vestal, and to deliver to one or both of the defendants forty-four sheep; and was to receive therefor, as payment, four village lots in Binghamton, a bond and mortgage, made by one Finch, for $300, and $175 in money; which agreement was carried into complete execution.

The action was to recover the amount of a certain tax assessed against the defendants, in the town of Manchester, Ontario county, and paid hy the plaintiff, at the request of the defendants, and under the agreement that they would refund the amount to him, “ in case they were legally liable to pay it,” upon the facts stated below; otherwise, not The following facts were agreed upon at the trial: On and prior to the 1st of September, 1860, the defendants were owners of a…

This action was brought to recover the purchase price of 188 tons of coal, amounting to the sum of $651.30. The coal was contracted to be sold by the plaintiffs to the defendants by an oral agreement, entered into prior to the 26th day of June, 1858. By the terms of this agreement, it was to be shipped on board a boat at Richmond, in the State of Pennsylvania, for the defendants, and to be carried from there to.

49, entered on the 9th June, 1862. On the 1st September, 1848, the plaintiff formed a partnership with the defendant in New Orleans, in the general commission business, under the name of J ames Gandolfo & Co. The business was continued until the summer of 1851, the firm having in the meantime acquired an interest in a sugar refinery.

This was an action to compel the specific performance of an agreement to convey certain real estate in the city of Brooklyn. By an agreement of the 8th June, 1853, the defendant, David S. Mills, covenanted to convey to the plaintiff, by deed, with full covenants, certain lots of land, thirty-four in number, situate upon Myrtle avenue and Witherspoon street, in the city of Brooklyn.

<p>/x suit will be upheld to remove, as a cloud upon title, a claim which appears to be valid upon the face of the record, and the defect in which can only be made to appear by extrinsic proof.</p> <p>Accordingly, where the complaint alleges that the defendant claims some interest, or estate in the plaintiff’s premises, in the city of Brooklyn, hy reason of a sale thereof for taxes, which was illegal and void on account of the assessment of said land being to one who was neither the owner or occupant thereof, nor a resident of the said city, and that the defendant had received a certificate of sale of the said premises; had given notice in writing, to the plaintiff, that he claimed title, and had put said claims on record in the office of the collector, whereby they have become presumptively a lien on the premises, and prayed that the sales be declared void and defendant be compelled to discharge the same—Held, good on demurrer; tile statute in reference to the tax sale enacting that the certificate of sale, when recorded, should constitute a lien, and the holder being declared entitled to a deed if there is no redemption; which deed is evidence that the sale of the land was regularly made, and according to the provisions of the statute.</p> <p>Scott v. Ondardorik (4 Kern., 9), followed.</p>

This action was brought to recover damages for an alleged refusal to accept 200 boxes, or 114,445 lbs. of bacon, claimed to have been sold by the plaintiffs to the defendants at eight and three-fourths cents per pound. The refusal of the defendants to receive the bacon was not denied. The market price of the bacon when tendered, according to the plaintiffs’ testimony, was two and one-half cents per pound less than the contract price.

<p>This is an action of replevin, brought by the plaintiff to recover the possession of a quantity of goods and merchandise, seized and taken by the defendant from plaintiff, in the city of New York. The plaintiff makes title to a portion of the goods as purchaser from the firm of Money, Manley & Co., and the defendant seized the goods by virtue of certain attachments, delivered to him to execute, against Money, Manley & Co., in favor of certain creditors of that firm. The question litigated in the case was, whether the sale to the plaintiff’ was fraudulent, as against the creditors of Money, Manley & Co. At the close of the evidence, and before the judge had charged the jury, the defendant’s counsel submitted to the court a series of propositions, embracing thirteen requests, to charge the jury. The judge charged the jury quite elaborately, submitting substantially all the issues in the case to them and it is stated in the case at the close of the charges that “ the court, as to the requests to charge, made by the defendant’s counsel, as to each and every of the said propositions, refused to charge further, or otherwise, in respect thereto than as in the foregoing charge, and that “ the defenda/nfs cownsel thereupon excepted to the said refusal, as to each proposition, separately, and also excepted to the charge as made by the court and each a/nd every part thereofP The cause was submitted to the jury, who found the titles to the property in the plaintiff, and assessed the value thereof at $2,750, and the damages for the detention at $401. Judgment having been entered upon this verdict, the defendant appealed to the General Term, where the judgment was affirmed, and the defendant has appealed therefrom to this court.</p>

Henry and Snyder to be admitted to the bar, on the ground that the applicants were not residents of the first judicial district. It appeared from the affidavits filed upon the application that both gentlemen were residents of New Jersey.

Motion to dismiss an appeal to this court from an order of the General Term of x the first district, affirming an order setting aside certain assessments for local improvements in the city of Mew York, for alleged irregularities therein, entitling the petitioners to relief under chapter 338, Laws of 1858.

This action was brought to recover damages alleged to have been occasioned by certain fraudulent representations made by the defendant to the plaintiff, concerning the responsibility of Isaac Kahn. At the time when it was claimed, upon the trial, that the representations were made, which was in January, 1860, the plaintiff was engaged in business at the city of Auburn, manufacturing leather and dealing in sheep skins.

The plaintiff, as an attorney and eonnselor-at-law, performed legal services and paid out moneys by way of xegal disbursements in the defence of two suits, brought by the respondent, as executor, against the defendant, Lawrence ¡M¡. Fox. The complaint, in the present action, fully described the nature of those suits, and claimed $1,606.95 to be due to him for such services and disbursements.

The plaintiff brings this action to recover damages for the non-delivery of 1,000 shares of the capital stock of the Downieville Gold Mining Company, pursuant to a contract made on the 24th day of May, 1866; and- also for nondelivery of the same number of shares of the stock of the same company pursuant to a contract made on the 12th day of June, 1866.

This action was for extra work on a building erected for and owned by the defendant, who was a married woman, the plaintiff claiming the amount as an equitable charge on her separate estate, which consisted of the building and the lot ■ on which it stood. The plaintiff’s brother and assignor contracted to erect the. building on the 27th of October, 1856. The contract was made in the name of the defendant’s husband, James V. Seaman.