Volume 42 — Howard's Practice Reports

<p>Appeal from a readjustment of costs by the county court, on an appeal from a justice’s judgment.</p>

Judge Ingraham at, special term, set aside a judgment of¡ plaintiff, who thereupon appealed to the general term.. This appeal the defendants moved, to dismiss upon the ground of waiver by acts subsequent. The court, Judge Ingraham presiding, dismissed the appeal. The action was brought to recover back money paid unds? a judgment which had been reversed.

This was an action for an account between partners, and alleging that $1,500 was due the plaintiff, and that the .partnership had been dissolved March 1, 1867, and before the suit was commenced. The plaintiff demanded an account and judgment for said $1,500, with general relief. •The answer.admitted the dissolution of the partnership, but denied there was any sum due the plaintiff.

<p>Where the facts disclosed, authorized the court to assume that the defendant waa dead when the plaintiff commenced bis action against him, and consequently that the judgment obtained in the action was void, yet it is an apparent lien, or efofttZonthe real estate of the defendant, which maybe set. aside on motion, by an heir-at-law of the defendant, having an interest in such real estate.</p> <p>This court has control of its own judgmeuts, and has not unfrequently vacated them on motion of parties having an interest in a property on which they were a cloud</p>

This was an appeal by the plaintiff from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought to recover damages for an assault and battery, and the defense was, that the plaintiff committed the first assault, and that the defendant acted wholly in self-defense. Evidence was given by the defendant that the plaintiff had threatened to whip him on the first opportunity.

<p>Where the facts alleged in the complaint, and on which the equities for a preliminary injunction are founded, arc all positively denied by the answer, and it appears to be extremely doubtful whether the plaintiff will ultimately be entitled to the relief demanded, the injunction cannot be sustained.</p>

<p>On a sale and foreclosure of real estate, where the written agreement between the parties requires the vendee to pay down on the consideration a specified sum— which is done, and that another specified sum is to be paid on a certain day-some six months hence—when, on such latter payment the vendor is to deliver a deed of the premises to the purchaser, and the latter is then to deliver to the vendor his bond and mortgage to secure the balance of the purchase money, and for the accommodation of the vendee the vendor accepts his promissory note for sixty days, as part payment of the second installment, the contract thus becomes extended until the end of the sixty days, when the note becomes due.</p> <p>And although the vendor, when the note is given, notifies the vendee that the com tract must be closed up on the maturity of the note, and not extended any further, yet, the vendee pays his note at maturity and nothing is said' or done by either party in order to exchange the writings and close up the contract, by a tender by one party of the deed, or by the other of the bond and mortgage and payment, so as to put either party in default, until some three or four years afterwards when the vendee demands a deed and offers to pay the balance of the purchase money, which the vendor declines to accept and declares the contract forfeited:</p> <p>Held) that the vendee is entitled to a specific performance of the contract.</p>

The defendant hired from the plaintiff, ceitain premises known as No. 140 West 45th Street, in the city of New York, from the 14th day of September, 1868, to the 1st day of May, 1869, at the yearly rent of $1,800} payable monthly.

<p>Where there is conflicting testimony upon a question of fact as to the alleged breach of warranty on the sale of an article of personal property, the finding of the court below upon that point cannot be reviewed on appeal.</p>

Motion by defendant to dismiss the complaint under. § 274 of the Code, on account of plaintiff’s delay in bringing the same to trial.

Motion to vacate attachment. The case, as made by the complaint and affidavits of the plaintiff is, that the plaintiff sold and conveyed to the defendant certain lands, situate in this county, at the price of $3,000, and received in payment $1,200 cash, and certain lands, 360 acres, in Michigan, conveyed to him by the defendant for the remaining consideration, $],800.

■ The case was tried at the Westchester circuit before Mr. Justice Tappen, without a jury, and upon his findings and direction a judgment was entered for the plaintiff, for possession of real property. The material facts are stated in the opinion.

<p>Where a question of fraud or misrepresentation arises upon the issues on the trial of a cause, the court has no right to withhold such question from the jury and to decide it, where either party apply to have the question submitted to the jury.</p>

Motiom by defendants to have the question determined whether the defendants are entitled to costs, or whether the plaintiff is entitled to costs. The action was tried at the Broome circuit, in September, 1870. Verdict for plaintiff for $5, damages.

This is a motion to vacate a writ of prohibition granted in the above matter to prevent the county judge from proceeding further upon the application to bond the city of Albany for railroad purposes. ' R. W. Peckham, Jr., N. C. Moak, and Lyman Tremain, for the motion. Matthew Hale, Samuel Hand, and John H. Reynolds, in opposition.

<p>The State Attorney General in an action by the people against a corporation, has power and may in his discretion discontinue such action.</p>

<p>The United States District Court will not sustain a bill m equity filed by the assignees of involuntary bankrupts, to reach the proceeds of property in the sheriff’s hands, which property was levied upon and sold under judgments and executions against the bankrupts issued out of a state court, in favor of bona fide judgment creditors, who at the time of the levy had no reason to believe that there was any fraud or collusion on the part of the bankrupts to evade the effect of the bankrupt act, and thereby to give the creditors a preference.</p> <p>On the argument several questions were argued and authorities cited, bearing on the case, to wit:</p> <p>1 st. Whether the bankrupt court could render any decree which would be binding upon the sheriff as to property or moneys in his official custody as an officer of the state court ?</p> <p>2d. Whether a bill in equity would lie in such a case, there being an adequate remedy at law ?</p> <p>3d. As to the question of intent to avoid the operation of the bankrupt law, to prefer or to obtain preference, &c. (See note at the end of the case)»</p>

This was an appeal from an order at special term directing the sheriff to pay to plaintiff moneys arising from the sale of property of defendants, levied upon under executions. The levies were made Jan. 12th, 1871.

<p>The exclusion at the trial of evidence which at the time of its offer appears quite immaterial, will not, on appeal from the judgment, be treated as error, unless it plainly appears that the court below has been acquainted with the ground which in law might have justified its reception.</p>

<p>In a bargain to sell real estate, where the defendant, the owner, said to the plaintiff— by parol, “I give you the refusal of this property from week to week, and if you do sell it during that time, you can have the deed in your own name, so that you can give the deed to the party purchasing.” Plaintiff was to sell for not less than $30,000, and defendant was to give him if so sold for his services $300. Plaintiff sold for $31,500:</p> <p>Held, that this was an agreement concerning an interest in lands, and not being in writing, was within the statute of frauds.</p>

<p>Where one partner procures, by false and fraudulent representations, an indorsement, without the knowledge of the other partner, but such representations were professedly made on behalf oí the firm, and the indorsement which was procured by their means, was made on the obligation of the firm, and the firm had the benefit of it in its business, both partn&'s m&y be arrested for the fraud.</p>

This was an action brought by the above-named plaintiffs against the above-named defendant, to recover $130,000, alleged damages, asserted to have been sustained by reason of divers alleged libellous publications of and concerning the plaintiffs, contained in a chart of Life Insurance Companies annually published by the defendant, and in which is embodied a brief synopsis of the annual returns of such companies organized or doing business in the state of New York, for the…

This was an action by the plaintiffs to restrain the defendant from infringing the common law rights of the plaintiffs, in the picture known as the “Rock of Ages,” by the sale of lithographic reproductions thereof. A similar, suit was brought by the plaintiffs in this court, against another defendant, and will be found reported in 40 How. Fr. B. 10.

An order for the defendant to show cause why an injunction should not be continued, granted preliminarily on the 9th instant, being returnable this day—and it appearing, that the action was triable in the county of Niagara, in the eighth judicial district, and the order to show cause was granted at Rochester, the place of residence of the justice, &c., in the seventh judicial district, it was moved, that said injunction order be discharged for irregularity.

The action was upon an undertaking given upon the arrest of the defendant Wildey. The defendant was arrested on the 2d of July, and undertaking was given on the 10th of August, 1869. Judgment in the action was entered on the 10th of July, 1869, when an execution against the property was issued and returned unsatisfied. An execution against the person of the defendant was not issued until March 1st, 1870.

Action for assault and battery; summons and complaint issued November 25, 1871, against Eugene Conhyser and Edward Winslow, and on that day placed in the hands of the sheriff of Montgomery county. On that day the sheriff served the summons and complaint on defendant Winslow and on John H. Conhyser.

This is the important and at present leading case in ouz courts in regard to the extent of the liability of a landlord for the valuables deposited with him for safekeeping by a guest. The defendants are the proprietors of Earles’ Hotel in the city of New York, and the plaintiff, in April, 1862, was their guest; and as such deposited in the safe of the hotel, a package of money and valuables amounting to about $22,000.

<p>An assignee is an officer of the court and acts subject to its orders. The bankrupt is entitled to a certificate of the assignee giving the names and residence of the creditors who have proven their claims, as per form, in order to enable.him to move the court for an order to show cause why he should not be discharged, &c. The register has the power to make such an order and it is the duty of the assignee to obey it. Motions to compel an assignee to do his duty are properly made before the register.</p>

<p>Where a receiver of an insurance company is appointed pending an action in which . the company is plaintiff, the receiver may continue the action in the name of the original party.</p> <p>Therefore, where such a cause is regularly called on the calendar, the defendant may move and obtain a regular order dismissing the complaint without substituting the receiver as plaintiff.</p>

The following decision was rendered by this court at Springfield, 111., in suits brought to compel the town of Bloomington, 111., to recognize the bonds issued by it in aid of the Lafayette Railroad. The case is of general importance as a precedent in other parts of the country:

Upon the trial, evidence was given on plaintiff’s side, showing a demand for 40,000 gallons of the oil in question, on each of the following days, to wit, the 7th, 14th, 21 st and 28th of May, and a further demand of the whole quantity 30th of May. The evidence established prima facie at least an ability and willingness on the part of the plaintiff to pay for the oil as demanded.

This action was commenced in July, 1853, and was tried át the Saratoga circuit, June 7, 1854, before Justice Hand, with a jury. The complaint alleged that the plaintiffs were judgment creditors of James Viall and one S. A. House, partners in business, who failed and made a general assignment for the benefit of creditors, in September 1, 1851. That the judgments in question were recovered in 1852, and execution returned unsatisfied.

This action was brought to recover the amount of a judgment rendered in the district court of California, August 22, 1851, in favor of Abijah T. Everett and, others against the defendant Isaac T. Smith, for the sum of $1,326 87, and interest, at the rate of ten per cent, per annum, from the date of the judgment. The plaintiff in this action, claims to be the assignee and owner of said judgment.

<p>Where three vessels are close hauled and beating out a tack on courses which respectively carried them off shore about two miles, having the wind bearing off their port-bows respectively, the headmost schooner then went about and stood in shore on her starboard tack, the next, which was the libellant’s vessel, also very soon after followed the former on the inshore tack, but before she could gather headway on ,the latter tack the hindmost of the three vessels on the offshore tack, which was the respondent’s vessel, ran into the second one head on striking her abaft the main rigging and causing her to sink in half to three-quarters of an hour, it appearing that the colliding vessel had no lookout on board, but had previously lowered her mainsail in order to take in reef, in which those on board of her were engaged at the time of the collision, and no one on hoard of her saw the libellant’s vessel when she tacked or when she was in stays, or noticed her at all after her tacking until it was too late to avoid the collision. It was held that the collision was the result of gross carelessness in the management of the respondent’s vessel."</p> <p>It was the duty of the respondent’s vessel, knowing as the master did that there were two schooners in close proximity to his own, knowing also as he must have known that they were beating out their tacks and would probably soon come about and put in shore, to keep watch of their movements and to notice the change of course of the second vessel in season to port his own helm and thus pass under the second vessels stern.</p> <p>That the fact that the hands on the colliding vessel were engaged in reefing their mainsail did not relieve them from all obligation to observe the most common precautions against inflicting an injury upon a neighboring vessel ahead, especially when the movements of that vessel were precisely what ought to have been anticipated.</p> <p>A custom of the sea not to have a lookout in the day time or while reefing is not a reasonable one, sufficient to justify the absence of a lookout in such a case as this.</p> <p>It may be conceded that when two vessels are approaching each other, the one crippled, and the other in good manageable condition, it is the duty of the latter, if possible, to give way to the former.</p> <p>When the owners of the injured vessel brought a libel in personam against the general owners of the colliding vessel, including the master of the latter who was also a general owner, hut the evidence showed that the colliding vessel was commanded, sailed and exclusively managed by said master, under an arrangemenfc made between him and the other owners whereby he had in effect become the charterer of the vessel, to be employed on his own account without the management, control, restraint or possession of the other owners; the ss\id master and part owner sailing the vessel on shares, hiring liis own crew, paying and victualing them, paying half port charges, retaining half the net freight after the port charges were taken out, and paying to the general owners the other half: It was held that such master was the owner pro hae vice, and liable for said damages in the suit brought as aforesaid.</p> <p>The master in question is the charterer of the vessel in question, and as such by the 5th section of the act of March 3, 1851, (9 Slataies at Large, p. 635), he is regarded as the owner and responsible for the tortious acts of the vessel.</p> <p>Where the libel avered that all the respondent's were the owners at the time of the collision, but did not set outwhether they were general or special owners, itwas held that, such averment was unnecessary, for it is immaterial to their liability whether they were one or the other if they had possession and control of the vessel. It is the ownership which determines the liability, and an averment of the mode in which ownership was acquired would be superfluous.</p> <p>The fact that others who were the general owners of the colliding vessel are united as co-defendants with the owner pro hae vice, does not bar the libellant’s right to recover against the latter. The libel is for a tort, and tort feasors are jointly and severally responsible.</p> <p>The common law rule that where several are sued as joint tort feasors, there may be a recovery against one alone, against more than one or less than the whole number, applies also in admirably.</p> <p>It is in accordance with admirality practice to decree against one of several respondent’s to a libel for a tort, and to discharge the others.</p> <p>On the point that though the master was under the arrangement aforesaid the special owner, yet the general owners were liable for the torts committed by the schooner while she was thus let to charterer, this court were evenly divided.</p>

This action was brought against the defendants as members of a social association, called the City Club, to recover the amount due for rent of the premises occupied by the defendants as such association. The defendant, Thomas, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The facts alleged in the complaint are stated in the opinion of the court.

The action was for the recovery of a commission, fixed by the agreement of the parties, at $140 00, and claimed to have been earned by the plaintiffs, as brokers, in affecting a sale of defendant’s house to one Kaesinger.

This action was commenced in the 5th district court of this city and removed to this coqrt on application of the defendant.

The venue of this action (the subject of which was transitory and not local) was laid in' Kings county. Before answer, the defendant under section 125 of the code, moved to change the venue to the county of New York.

<p>Where a person is employed by an innkeeper for the purpose of receiving robes, cushions, whips, &.C., during one night, at a ball or dance, and where one of the guests towards the close thereof, received his robes, whip, &c., and with his horse and carriage left for home, but within an hour afterwards perhaps, returned to the hotel, and carried in the robe and cushion and handed them to the same clerk, who was still there employed, and told him,</p> <p>“That he (the former guest) had been tipped over, and these things would have to remain there two or three days or until he could find his horse at any rate, and asked the clerk if it would be all right, and he (the clerk) said it would be.”</p> <p>In an action subsequently brought by the father of the guest against the landlord to recover the value of the robe and cushion which had been lost—it being conceded that the landlord knew nothing of their being left at his house—and the quoted statement above being all the evidence there was on the subject:</p> <p>Held, that the charge of the judge, that under the circumstances, defendant was bonnd to put the clerk on the stand as a witness, to make such explanation as he could, and. in the absence of such explanation, the jury must find for the plaintijf, unless the property was left with the clerk pursuant to a special agreement, was error. The clerk was interested in swearing the liability on the defendant.</p> <p>That the property was left with the clerk to be kept for two or three days, or until the horse was found was sworn to as above quoted, and there was no other evi dence on the point. On this evidence the only question was whether the clerk was acting within the scope of his authority as agent when he made the contract, and this was a question of law. The charge of the court, therefore, that the defendant was not liable if there was a contract between the clerk and the former guest, but if there was no such contract, defendant was liable, was error.</p>

This action was brought to recover damages occasioned-by the explosion of a large rotary, iron steam boiler, while the same was owned and being used by the Saratoga Paper Company, at their mill situated in the village of Schuyler-' ville, Saratoga county, and State of New York, on the 13th day of February, 1864, by means whereof the boiler was projected and thrown on to the plaintiff’s premises, and through several of his buildings, thereby injuring and damaging the same.

. This was an appeal from the judgment and an order denying a motion for a new trial. The complaint was in the nature of trespass de bonis asportatis, and the answer contained a general denial. The cause was tried before Ch. J., Daly and a jury, and a verdict was rendered in favor of the plaintiff for $66,30, and the facts will be found in the opinions of the court.

This was an application to have a sale set aside, and a resale of the premises. The affidavits showed that plaintiff had a judgment against the defendant, which was a lien on real estate owned by the defendant $ that the real estate was incumbered by a previous mortgage, but not to its full value. That the defendant was insolvent. The plaintiff and his attorney resided in Delaware county about fifty miles from the court house in Sullivan county.

<p>Has an attorney of the court a lien npon moneys collected by him for assignee in bankruptcy %</p> <p>Quere.—It is the duty of the register to proceed and audit the accounts of the assignee, including an item for services of an attorney—even though a part of the moneys collected by such attorney have not been actually paid over to the. assignee and deposited by him as required by the act and the 20th rule of the district court.</p>

<p>Where a referee refuses to¡ñnd, and insert in the case and exceptions, a series of proposed findings of fact and of law proposed by defendant’s counsel, the defendant cannot appeal from such refusal; such errors can only be corrected on motion.</p> <p>An appeal by the defendants was taken, in such a case, which contains such proposed findings rejected by the referee, and the plaintiff moved the general term to strike them out, and also to dismiss the appeal from the decision of the referee refusing to insert them. And the defendants moved that the proposed case and findings be sent back to the referee for resettlement, the general term thereupon dismissed the appeal, and gave the defendants leave to amend the case and judgment record, so as to put the case in proper form for review.</p> <p>The case was again submitted to the referee for settlement, and he again settled it as he had done. The defendants’ counsel thereupon corrected the case by striking out the proposed findings of fact aud law; and upon the case as thus proposed, the appeal was again brought on to argument at the general term, where the judgment was affirmed.</p> <p>It would be useless to insert in the judgment record or in the case, all or any of the matters proposed to be inserted therein, unless they can be the subject of review by the court of appeals; and they are not the subject of review in that court, if the relief granted or refused in this court was the result of the exercise of the discretion of the court, or if the matter has never been before this court for its consideration.</p>

The relator was the assignee of a claim for salary of one Bell, superintendant of printing, employed by the commissioners of records for the city and county of New Yoik.

The action was to recover the contract price of seventy bales of cotton, wheighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants.

This action was brought to obtain an injunction to restrain the publication by the defendant, of a dramatic composition called “Play,” of which the plaintiff was the owner. The defendant had judgment at special term which the general term reversed and granted a new trial. The defendant appealed from the order granting a new trial, to the court of appeals, giving the required stipulation.

<p>A copartnership consisting of three parties doing business at New Orleans had expired by limitation in 1862. One of the parties became a resident of the city of New York, and in 1867, filed his petition to be declared a bankrupt in the district court for the southern district of New York. He was so declared a bankrupt and an assignee was duly appointed. In 1868, the other two parties filed their petition in bankruptcy in the district court for the district of Louisiana, praying that the firm be declared bankrupts. They were so declared bankrups, and an assignee was duly appointed. It appeared that there¿were partnership debts still existing and a considerable amount of real estate belonging to the copartnership situate in several different states:</p> <p>J3.eld, That the proceedings in the bankruptcy court of Louisiana are void for want of jurisdiction. That it is the duty of the assignee in New York to proceed in this court by petition supplementary, and have the New Orleans copartners adjudged bankrupts.</p> <p>JETeld, That neither the proceedings in this court nor those in the district court for Louisiana as they now stand, are of any avail to convey the interest of the members of the firm to the lands in question to any assignee in bankruptcy in either court.</p>

This motion is, to remove the cause into the U. S. circuit court, and it proceeds on section 5 of the act of March 3d, 1863, as amended by section 1 of the act of May 11, 1866. The action is for trespass and false imprisonment.

Motion by defendants to change the place of trial to the proper county, to wit, from Erie to Niagara. The moving papers show, that the county of Erie is designated in the complaint as the place of trial; that both defendants reside in the county of Niagara, and the plaintiff in the county of Livingston, and that plaintiff’s attorney resides in Buffalo, and defendants’ attorneys in Lockport. The summons and complaint were served on the 1st day of Februaiy, 1872.

<p>Appeal by defendant from a judgment at special term.</p>

<p>Appeal from judgment at special term.</p>