Volume 41 — Howard's Practice Reports

This suit was brought, to recover $192 25, being a. balance due plaintiff for work done and money loaned by him to the defendant. This action was commenced by attachment- under the act of 1831, to abolish imprisonment for debt. On the return day of the attachment the defendant’s counsel moved to vacate the same on the ground that th'eaffidavits upon which it was allowed were insufficient -to authorize thfe issuihg thereof.

Issue was joined in this action, and was tried at the Jefferson,county circuit, October, 1870. When the evidence was closed on the trial the court directed a verdict for the plaintiff, and ordered the action reserved for further consideration, with leave to the defendant to move for a new trial on a case to'be made and settled in the usual manner.

<p>This was an action brought to recover the amount of thirteen promissory notes, made by the European Petroleum Company to the order of L. E. Lahens and indorsed by said Lahens to the plaintiffs.</p> <p>Upon the trial before a referee, the defendants’ counsel proposed to open the case, and insisted on his right so to do, on the ground that the burden of the proof was on the defendants, and that the affirmative was with them. The plaintiffs’ counsel objected and claimed that he was entitled to open and close the case. ■ •</p>

In November, 1862, the defendant’s bark Antietam being -ashore near the Delaware Breakwater, he sent the following telegram to his agents in New York: “ Bated Lewes, Bel., ‘‘ 13, 1862. u Iieceived New York, Nov. 13, 1862. u To Metcalf & Duncan : lt Send me small tug-boat, steam-pump, engineer, my ■diving apparatus and diver, or telegraph Eben Eaton, 90 .Bolton St.,‘ South Boston, to come.

<p>Appeal by defendants from an order appointing a receiver, &c.</p>

This is an appeal from a judgment rendered by a justice of the peace. The action is replevin, or for the delivery of personal-property. The parties appeared before the justice, and after issue-was joined the defendant demanded that the cause be tried by a jury, to be composed of twelve persons.

<p>Motion by defendants to set aside judgment and inquest taken against them by the plaintiffs, for irregularity.</p>

These proceedings were brought to vacate assessments imposed on the property of the petitioners for paving Irving Place, 19th and 16th streets with Nicolson pavement under the acts in relation to frauds iri assessment, for local improvements in the city of New York.

<p>An ádjudication of bankruptcy terminates the interest of the bankrupt in any policy of insurance, ana the policy is thenceforth void and of no effect; but an insurance company may consent to continue their liability by the usual transfer of the policy to the register in charge of the bankruptcy proceedings, until an assignee shall have been appointed, and may also transfer said policy to the assignee when appointed. It is optional with the company to continue the risk by such transfers, or to cancel the same.</p> <p>The title to the property of a bankrupt, by operation of law, vests in the register as-register, although the property may be in the possession of the U. S. marshal as messenger, it is still in the possession of the court, and the registeris, by the bankrupt law, the court or trustee.</p> <p>The U. S. marshal and assignee or trustee are officers of the court, and must obey the order of the register, and their necessary expenses and disbursements made by them in the protection of the property of the bankrupt's estate must be taxed by the register and paid out of the estate. ’</p>

<p>Appeal from a judgment of the county cotirt of Erie •county, dismissing the complaint for. want of j urisdiction..</p>

The answer of the defendant contained a series of ■specific denials, putting in issue every material allegation of the complaint, and also a counter-claim for the recovery of $350—damages alleged to have been sustained by the defendant in the following manner: That' in pursuance of a certain agreement made between the parties in relation to the hiring of certain premises, a -certain chattel mortgage upon the goods and chattels ■described in the complaint, was duly executed…

<p>An. appointment of a school district collector under the statute, {Laws 1864, Art. 3r Title 7, Oh., 555, $ 32,) made by parol, by the trustees of the school district, does not vest the title of office, in the appointee. The appointment should be made in writing as required by the statute, under the hands of the trustees; it is the incumbents commission or warrant; and the statute having designated the mode and manner of making it, it becomes the very essence of the requirement*</p> <p>A parol appointment of the collector, by a sole trustee of the school district, the execution of the bond by the collector, the approval thereof by the trustee, together with the delivery of a tax-warrant to him, constitute him an officer de facto, within the meaning of that phrase. And his acts as such de facto officer, are binding upon the public and third parties, and the title to his office cannot be inquired into collaterally.</p> <p>But so far as the officer himself is concerned, the government may try the right to-the office by gw warranto; and the title to the office may also be questioned where-he is a party, "and is sued for an act which he can only justify as an officer.</p> <p>The sole trustee, (defendant) who attempted to create the collector an officer, and to-endow him with the rights and functions of office, but disregarded the provisions-of the statute as to the mode and manner of executing the power vested in him, stands in no better position. He is in no just sense a stranger to the acts aud doings of the collector, and wasnot ignorant of the defects of his appointment, and knew it was void, and yet sets him in motion with a command to seize and sell the-property of others. He is also liable to the plaintiff as a wrong doer. ,</p>

<p>It rests exclusively in the discretion of the judge holding the circuit, whether exceptions taken in a cause tried before him shall be heard in the first instance at the general term, or at the speeial term.</p> <p>It is quite certain that no appeal would lie from such an order; and it seems that its reversal cannot be accomplished by a motion at special term to vacate it.</p> <p>Where the exceptions taken on the trial were, at the close of the trial, ordered by the judge to be heard in the first instance at the general term, and the exceptions were argued before the general term, but that court finding itself unable to grant the defendant relief, and that it could only be done by the special term, omitted to decide the case and held it under advisement; and in the mean time a motion was made by the defendant at special term for an order vacating the order of the circuit judge directing the exceptions to be heard at the first instance at general term, which was granted :</p> <p>Held, on appeal from this last order, that it be vacated, without costs, as the question was a new one.</p> <p>The practice of sending these cases to the general term, unnecessarily increases the business of that court, and such an order should not be made unless in cases of the highest importance, or of absolute necessity.</p>

jury- The- action was brought for the recovery of the usual broker’s commission for an alleged sale of certain real estate.

settlement of said accounts and payment,.which defendants have refused. The defendants, in their answer, admit all the material allegations in the complaint, except that they deny that they ever refused the plaintiff an accounting and settlement of the accounts and allege that the plaintiff.and the, defendants havehad an accounting and settlement of said accounts, and that the balance as stated in the plaintiff’s complaint, is •still unpaid.

■ In April, 1869, the plaintiff left her home to go to the Central Park. She got on to one of the defendants’ cars and asked the conductor if he would take her to the Central Park, and he told her that he would leave her at the Park. When the car arrived at the block between 52d and 53d street, the car stopped, and the only other passenger, besides the plaintiff, got off.

<p>An alternative writ of mandamus, should be a statement of the ralator's title to the-relief demanded, and should contain no allegations except such as are pertinent to-that title and relief.</p> <p>The alternative mandamus stands as a declaration or complaint, and sets forth the-relator’s title to the relief; in other words, his cause of action. The further proceedings under the statute are precisely like those in an ordinary action.</p> <p>It is certainly an unknown practice, since bills of discovery have been abolished, for the plaintiff to apply thatthe defendant make a farther answer to the allegations-of the complaint; and there is no reason for any difference in this respect between an action commenced by mandamus and one commenced by an ordinary complaint.</p> <p>There seems tobe no reason why the relator should seek a fu/rther return in a case-like the present—where the defendant undertakes to set up new matter as a. defense, but fails to do it with sufficient certainty, whatever may be proper in a, case like that reported in (9 Wendell, 429.)</p> <p>A motion by the relator to compel the defendant to make a farther return is an anomulous proceeding. And it seems that the case in 9 Wendell, (supra,) should, not be considered as authority beyond the facts contained in that particular case..</p>

<p><)n the trial of a prisoner upon an indictment for an assault and battery fbith ike intent to commit a rapet if the evidence is clearly insufficient to warrant or justify a conviction for that offense, an exception to the refusal of the court so to rule, or charge, is well taken the same as though it had been a civil action:</p> <p>Meld, that this case was entirely bare of any and all evidence to prove an intent to commit a rape. Taking the testimony of the girl herself, in its fullest length and breadth, it was not clear, beyond doubt, that even a simple assault and battery was committed.</p> <p>Zt is quite certain however that had the prisoner had sexual intercourse with her at the time, with no more resistance on her part than appears from her testimony, he'conld not justly have been convicted of a rape, within the rule established in the People agt. Morrison, fl Park, Or. It., 625,) and the People agt. Abbott, (19 Wend., 192.) At most the testimony would have made but a “ mixed ¿ase,” and her quasi assent would have been presumed from such mere passive resistance.</p> <p>"Where the indisputable evidence in such a case, is such as to raise only a suspicion • or conjecture of the criminal intent, it is clearly insufficient, and the court should so charge the jury.</p> <p>Where the court under the evidence, submit to the jury the feloneons intent to commit a rape, (together with the crime of assault and battery,) against the prisoner’s objection and exception, and the jury find a verdict against the prisoner for simple .assault and battery, it is error for which the judgment will be set aside and a new trial ordered. It was calculated to, and the presumption is that it did prejudice the prisoner’s defense on the other branch of the case.</p>

Appeal by defendant from judgment of special term. The defendant made a motion at the special term, to set aside the judgment of divorce obtained against her in this action. The service of the summons and complaint were by publication; at the time of the service, she was a resident o'f the state of Wisconsin. The relief was sought on the /ground that the judgment was obtained by fraud, practised by the plaintiff upon her, as well as upon the court.

This action was brought by the plaintiff, a sub-contractor street, in the city of New York, of which the defendant, to foreclose, a mechanic’s lien on premises in East 55th Hobein was the owner. It seems that the contractors, Kiechler and Huppert (the other two defendants) were to receive from the defendant Hobein, the sum of $4,100 for erecting the building in question.

<p>No principle of law is better settled than that a judgment rendered without the court that renders it having obtained jurisdiction of the subject matter to which it relates, and of the persons to be bound thereby, is utterly void.</p> <p>This principle of law applied in this case, where a judgment in favor of the plaintiff for alimony obtained in the state of Ohio, against the defendant, who bad never resided in that State, nor appeared in the action, nor been served with process, except by publication in a newspaper, which notice never came to defendant’s knowledge until after the rendition of the judgment, and the sale of his property by virtue of an attachment issued under it in this state.</p> <p>The judgment of the county court in Ohio is void in this state, as to the alimony, whatever its effect may be upon the marriage.</p> <p>There is no doubt of the power of the court to set aside the judgment, upon motion, where it clearly appears that the plaintiff had no legal cause of action.</p> <p>Posting citations in public places within the jurisdiction of the court in which proceedings to obtain judgment are instituted, can confer no legitimate jurisdiction over foreigners who are non-residents, and do not appear to answer the suit, whether they have notice of the suit or not. The effect of such proceedings are purely local, and elsewhere they will be held to be mere nullities.</p> <p>Service by publication is valid within the jurisdiction by whose laws it is authorized, but of no validity beyond it.</p> <p>It has been repeatedly held that where the suit is commenced by the atiachmmt of property, that the judgment record therein is valid, so far as the title to the property attached is concerned, but utterly inoperative as to the defendant for any other purpose, who has not appeared or been personally served with process.</p>

<p>The effect of the ceasing of the lien for want of an order renewing it, under 6 10 of the Mechanic’s lien law, {Oh., 500, Laws, 1863,) is to destroy all recourse of the lienor to the particular property described in the lien. The proceeding to foreclose, so far as the owner of the property is concerned (if he be not personally liable to the lienor for the debt) it is at an end, and the proceeding should be dismissed as to him.</p> <p>But as between the lienor and the contractor, who, is personally liable to him, the ceasing of the lien does not affect the proceedings, if the issue joined and the judgment claimed by the lienor, depend, not upon the lien, but the merits of the claim upon which it was founded, if the court have jurisdiction of the proceeding.</p> <p>Where the court acquires, under the act, full jurisdiction of the parties and of the controversy between them, before the lien ceases, the judgment rendered is regalar.</p> <p>And where such judgment is against the lienor, it would not be fair to permit him on motion, to avoid the effect of it on the merits, after a full and protracted trial# in a tribunal of his own choosing.</p> <p>It would seem to be proper to dismiss the proceedings as to the owner, after the lien has been removed by the deposit of the amount of the lien with the county clerk, by the contractor under the act; the lienor then having no rights against the owner but is left to the funds in the clerk’s hands for the satisfaction of his lien.</p> <p>Rule 32 (old) does not apply to a reference “of the issues” in a lien proceeding, and the exceptions are not to be heard first at special term.</p>

<p>Motion to discharge defendant from imprisonment.</p>

<p>By the charter of the city of Lockport, the assessment for grading a street in that city is to be equally made upon the real estate deemed benefitted by the improvement, and to be estimated and determined by otm. of the assessors of the city, &c.</p> <p>Held, no objection that the assessment was made and reported to the common council by two of the assessors of the city.</p> <p>Where the assessors, on examining the premises to be assessed, decide that the benefit to be derived from the improvement would be alike and equal to each lot, and that each lot should sustain an equal amount of the assessment; the assessment will be sustained, although there be but a small portion of the grading necessary to be done opposite the lots of the owner, who objects to the assessment on that ground.</p>

This suit is brought to recover against the defendant, Boyer as an accommodation indorser of a $1,000 note, made by the firm of West & Kenna, payable' to the order of the said Boyer and one William Kenna.

<p>Appeal from an order of special term, by defendant.</p>

<p>Proof of a parol agreement between a plaintiff and a defendant to the effect “ that, in case plaintiff would procure certain lands of the defendant to be sold, or would find a market for the same, at an aggregate price of not less than a certain sum named by the defendant, the defendant would sell the lands for said price and pay to the plaintiff for his services one half of the excess, which the plaintiff would procure to be given over and above the sum named by the defendant/’ followed up by further proof showing full performance on the part of the plaintiff at a price exceeding the limit named by the defendant and a subsequent refusal of the defendant to convey, is sufficient to entitle the plaintiff to recover his compensation, as agreed upon.</p>

This was an appeal from a judgment of the county court of Onondaga County, in favor of the plaintiff. The action arose in justice’s court, where the plaintiff recovered $140 damages. Upon an appeal brought by the defendant to the county court of Onondaga County, the action was tried before Hon. Henry Riegel, county judge, and a jury, and resulted in a verdict in favor oí the plaintiff for the sum of $150.

The defendant was tried and convicted of embezzlement at the May term of this court. Several questions presented by the case, being reserved for subsequent consideration and disposal.

<p>X demurrer to a pleading admits all the material facts stated in that pleading, but alleges that those facts in law do not constitute a cause of action or defense, as the case may be.</p> <p>X demurrer admits all the allegations, but it admits nothing but what is material and well pleaded, and it is only a technical admission, and does not involve a confession. Conclusions of law are never admitted by a demurrer.</p> <p>Where a corporation is not made a party, its property cannot be taken from it and put into the hands of receivers.</p> <p>Where the directors of a railroad company are sued individually, a receiver cannot be appointed to take charge of the affairs of the road; nor can one of two cestui que trusts be sued without the joining of the cestui que trusts.</p> <p>The legal estate of every corporate body is vested, not in the individual corporators, but in the corporation itself; the estate, however, is a trust for the benefit of the corporators. .</p> <p>By the wise policy of the law, corporate bodies are forbidden to be seized to a use; but, by a like policy, this law permits them to be vested with a trust.</p> <p>Where a plaintiff desires to establish his claim to be a corporator, or to preach in the church of the corporation, or to have a receiver appointed to take charge of the corporate property, he cannot have such relief in an action against private individuals.</p> <p>Where property is described, in a complaint, as being in the possession of defendants and their associates, styling them “ The Rector, Churchwardens and Vestrymen of Tiinity Church,” and where it is not alleged that they are not entitled to these offices, their possession and acts are those of the corporation, and the corporation alone is the party to be held responsible for them.</p> <p>Where predecessors are spoken of, it is equivalent to admittingthat defendants have succeeded to the office of such predecessors.</p> <p>Where defendants are, by the supposition of the complaint, possessed of property not in their own right, but in the right of the corporation, they ought not to surrender such property to a receiver without having the corporation before the court to defend its rights.</p> <p>Statements in a pleading must be taken as strongly as possible against the party making them.</p> <p>Where a party alleges that he is a corporator, or a successor to a corporator, it is very bad pleading if he do not also allege how he became a corporator, or a successor to a corporator.</p> <p>Before a suitor can claim the interposition of a court of justice, either in law or in equity, he must have some wrong to remedy, some grievance to redress, or some claim to enforce.</p> <p>It is common for legislative bodies, in novel and special cases which have eluded the penetration of former legislators, to pass acts, in the nature of declaratory acts, to pluck up discord and litigation by the roots, that general quiet may be promoted. Such acts resemble bills of peace in chancery.</p> <p>Members of every corporation have an interest in its estate while they continue members, and no longer.</p> <p>A right to the corporate property is strictly local in its enjoyment. Whenever & corporator removes and settles permanently without the precinte of the corporation, his franchise, ipso facto, ceases. Thus, if an inhabitant of the city of New York quits the city and takes np his residence in the county of Westchester, he relinquishes hie rights as a member of the city corporation, and he cannot resume them in any other way than by returning and again fixing his residence in the city.</p> <p>By the discipline of the English church no person can at the same time be a regular communicant in separate parishes under the care of different and independent rectors. The canons of the church particularly direct that the ‘’sacrament shall not be administered by the rector of one parish to the parishioners of another, without the license of the rector of the latter parish, except to travelers, to per-. sons in danger of death, or In cases of necessity.”</p> <p>The rector is authorized, under certain circumstances, to refuse the sacrament even to his parishioners.</p> <p>The only legal evidence that the parishioner is a communicant is his receiving the sacrament in the parish church, by and with the consent of the priest, and the rector cannot take notice of the receipt of the communion in other parishes.</p> <p>In expounding a statute, we are to presume that the legislator used words in their most usual signification—that he had the subject-matter constantly in mind—that all his expressions were directed to a reasonable end—that his train of thought was uniform—and that he intended to infuse into every part of the statute the same spirit.</p> <p>Although legislatures should be inflexible in their resolutions to preserve the inviolability of private property, yet they can exercise their discretion in moulding the elective franchises of corporations into new shapes, the better to adapt such corporations to the progress of the times.</p>

<p>An appeal from the decsion of the cleric of the court, allowing or disallowing costs, cannot be sanctioned. The practice is becoming quite common, but it is wholly irregular and unauthorized. It would be treating the humblest ministerial action as judicial—converting the clerk of a court into a judge, without any color of authority for so doing.</p> <p>The only duty the clerk is required or permitted to perform, in relation to the costs, is to ascertain and determine what items of costs and disbursements the party presenting costs for adjustment is, by law, entitled to. The question whether he is entitled to any costs in the cause is for the court to determine, not the clerk.</p> <p>It is the duty of a clerk to adjust any bill of costs presented to him. But unless there is a verdict of a jury, report of a referee, or order of the cotirt, awarding costs to the party presenting the bill to the clerk, it is not the duty of the clerk to insert the costs, so adjusted, in the judgment.</p> <p>If the party deems himself entitled to the costs in such case, it is his duty to apply to the court for an order requiring the clerk to insert the costs in the judgment.</p> <p>But if the clerk persists in inserting the costs in the judgment when there is no adjudication entitling the party to costs, the other party to the action must move to strike them from the judgment.</p> <p>After an adjudication by a justice of the peace that tne accounts of the parties exceeds $400, the plaintiff is bound to commence his action in the supreme court, and is entitled to costs under § 304 of the Code, on the recovery of any amount in that court. *</p>

<p>Where several plaintiffs unite in bringing an action against the defendant to recover damages which accrued to them severally, and on the tidal the defendant succeeds and has a verdict against four of the plaintiffs—the remainder of the plaintiffs recovering against the defendant—and the defendant enters judgment for coats against tivo only of the plaintiffs against whom he obtained verdict, the defendant is entitled to costs against the four plaintiffs.</p> <p>If the two plaintiffs against whom costs are inserted in the record of judgment, desire to compel the defendant to enter judgment against all the plaintiffs against whom the verdict was rendered, they must apply to the court for that relief. They cannot, on motion, set aside the judgment for irregularity on that ground.</p>

The place of trial in this action was originally in New York. A motion was made on behalf of all the defendants, except Herrick, to change the place of trial to Albany county, on account of the convenience of witnesses. This motion was heard at special term in New York, before Mr. Justice Brady, and was decided by him on the 15th of December.

There is no conflict in respect to the facts in this case. There may be some little variation or difference between IDr. Buck and the defendant’s account of what occurred between them, but nothing that could materially affect the •case. It is only that difference ordinarily found between two persons in narrating the same transaction, .but not any Edifference as to the facts, which as narrated by both are substantially the same.

Motion to dissolve an injunction. ' In this case it appeared that, on the fourth day of the present month, a judge of this court, upon an ex parle application made to him by Morgan & Hanrahan, the plaintiff’s attorneys, granted an injunction restraining the defendants from interfering with certain personal property claimed by the plaintiff.

This action was commenced on the 29th of November, 1866, against the defendant, for an absolute divorce. The venue was laid in the city and county of New York.

<p>There is no case which holds that the clerh's name is essential to the validity of a commission issued to take testimony.</p> <p>Where the commission is issued by the authority of the court, the signature of the judge is sufficient, without the signature of the clerk.</p> <p>Where the return of a commissioner shows, that the witness was duly and publicly sworn, pursuant to the directions “hereunto annexed and examined,” with a reference to the provisions of the Revised Statutes, which are annexed and constitute a part of the commission, the return is sufficient. There is nothing in the statute which requires a separate certificate.</p> <p>Where the Statute has been substantially complied with in the return, the deposition should not be excluded, except upon the clearest grounds of error, amounting to something more than a mere irregularity.</p> <p>Where the stipulation between the attorneys authorized the plaintiff’s attorney to direct upon the back of the commission the manner in which it should be re„ turned, and that the commission and deposition “shall'be returned by mail to S. Estes, Esq., clerk,” &c; and the plaintiff's attorney did direct that the commission be returned to the county clerk, but did not direct that it should be returned by mail’; but it appeared that in fact it had been returned by mail in pursuance of the stipulation.</p> <p>Held, that the stipulation did not require that the attorney should direct in terms that the commission should be returned by mail, but generally the manner in which it should be returned, and, in accordance with this, a direction was made to return it to the county clerk. This was a compliance with this provision of the stipulation, as to the manner of the return. The omission to state that it should be returned by mail, did not, of itself, violate the terms of the stipulation and vitiate the deposition.</p> <p>But even if it was erroneous, the error is substantially obviated by a compliance with another provision of the stipulation that it shall be returned by mail.</p>

This action was brought in a justice’s court, to recover damages for an alleged breach of warranty in a contract for the letting of a number of sheep. December 20, 1866, plaintiff loaned to defendant a number of sheep to be returned at the end of two years, in as good condition in all respects as when received, and for the use of which he was to receive from defendant lib. 6oz. of wool, per head, each year.

This is an appeal from a judgment rendered in favor of thé plaintiff on a report of a referee. ■ The action was brought by Williams, an attorney and counsellor-at-law, to recover for services rendered to John Morrison and Alexander Morrison, and to obtain restitution of damages and expenses to which, as he claims, he had been subjected in their behalf, and against which, as hediaims, they had indemnified him.

A copy. CHARLES E. LOEW. Certiorari.—The people of the state of New York. To the board of commissioners of taxes and assessments for the city and county of New York. Witness, Hon. Albert Cardozo, one of the justices of our ■court, at the court house, in the city of New York, the 29th day of June, eighteen hundred and seventy. CHAS. E. LOEW, Clerk. .Return.—To the supreme court of the state of New York.

The plaintiff brought this action to recover damages against the defendant for an alleged assault, battery and false imprisonment of the plaintiff by the defendant. In May, 1870, the plaintiff, (who is a farmer residing in the town of DeWitt, in Onondaga county), visited the city of Syracuse, for the purpose of doing some trading. He was accompanied by his wife, and drove one horse harnessed to a light buggy wagon.

<p>Where the testator, by his will, required his executors to pay to a trustee $4,000 to be,invested in the best manner, and the interest to be paid by him, semi-an- . nually to the plaintiff, during her life, and at her desease to pay the principal to her heirs:</p> <p>And then directed.his executors to pay the legacies mentioned in his will as fast as they might be able to do so without sacrificing his estate, but to pay all except such as were directed to be paid at a future day, within two years from, the period of his decease:</p> <p>Held, that the plaintiff was entitled to the benefit of her legacy, and consequently the interest thereon, from the period of the testator’s decease. There was to be no such conversion of one species of property into another, as under the authorities would lead to a postponement of that benefit for any period of time whatever.</p>