Volume 43 — Howard's Practice Reports

<p>A creditor at large, with a judgment which is a general Hen upon all his debtors* real estate, cannot maintain an action in equity to set aside the fraudulent conveyances of his judgment debtor, which obstructs the collection of his judgment, out of such real estate, without the issuing of an execution and ascertaining that it-, cannot be collected of the personal property of his debtor. {The authorities upon* this question examined and considered).</p> <p>Where an execution has been duly issued by a judgment creditor to the sheriff of a. county, and by him returned unsatisfied, a complaint by the judgment creditor, in. equity, to reach the property of the judgment debtor is defective,, if it does not allege that the execution was issued to the sheriff of the county where the judgment debtor resided at the time of its issue and of the recovery of the judgment,.</p>

These actions were brought to recover the possession- of certain lands in the town of Mendon, in the county of Monroe. The issues thereon were noticed for trial at and were on the calender for the last April circuit in said' county.

<p>Where an order of restoration at special term, is made, after setting aside judgment of dispossession obtained by the plaintiff—the plaintiff being in lawful possession of the premises, it is irregular to include in such order of restoration granted to the defendant, an injunction clause restraining the plaintiff from entering into or interfering with the possession of the premises and restraining him from cultivating o>r otherwise using the premises. When restored to possession, the remedy of the defendant would probably be by action for any illegal entry or injury done the premises by the plaintiff (See S. C., ante, page 17).</p>

<p>In an involuntary case, the attorney for the petitioning creditor was allowed to be paid out of the fund in the hands of the assignee, not only his disbursements, but a reasonable compensation for his services in prosecuting the debtor into bankruptcy.</p> <p>The practice in such case, is for the attorney to present to the register in charge a petition directed to the court in bankruptcy, praying to be allowed for such services and disbursements. The register then takes testimony touching the necessity aud value of such services and disbursements, and certifies the same with his opinion thereon to the district judge who makes such order thereon as the testimony seems to warrant.</p>

<p>It has reapeatedly been decided that a plea of license does not raise a question of: title to land. And where there is no certificate of the judge who tried the cause-* that title came in question on the trial, the court must assume, for the purpose of' the question as to who is entitled to costs, that the question of title was not raised! either in the pleadings or on the trial.</p> <p>Where an action is brought to recover treble damages for trespass on land, &c.,, pursuant to title 6, ch., 5, 3d part of the Revised Statutes (2 JR. S., 2d ed., 261, §< 1, &c.), and the plaintiff claims $1080, but recovers only $5, the defendant is. entitled to costs.</p> <p>This provision for costs in the Revised Statutes, in these actions, is repealed by the* Code. t</p> <p>Although the Code does not, in terms, provide for costs in actions of trespass om land, yet, as it provides for costs in actions of ejectment and in actions in which, title to real estate shall come in question, and is silent as to actions of trespass, it. must be assumed that that class of actions was intended to be embraced by some' other provision, if any is applicable to it.</p> <p>The only other provision of § 304 which can be said to embrace this class of actions, is the subdivision of said section which gives costs to the prevailing party* in actions for the recovery of money, when the plaintiff recovers $50 . And this, subdivision would seem to apply to actions of trespass.</p> <p>The plaintiff is not entitled to costs under the Revised Statutes because in hie complaint he claimed §1080 damages, an amount exceeding the jurisdiction of a justice* of the peace.</p> <p>A justice of the peace has jurisdiction of an action on a note or other contract, and! in an action of trespass, although the damages claimed may exseed $200, but because of the amount, of the claim, he cannot try it. This description of actions is= not that to which sub. 3 of $ 304, is intended to apply. The court has jurisdiction of such actions, but not of the particular cases.</p> <p>It would seem that the courts have heretofore sanctioned this injustice, as to the claim for the amount of damages destroying the jurisdiction of a justice in the action, and the inquiry is whether that rule of law is still in force.</p>

This action was brought to recover the value of legal services rendered by plaintiff’s intestate William R. Stafford. .The answer admitted the rendering of certain services, and alleged that various payments were made by defendant, and that in December, 1864, an account was stated between Stafford and the defendant, and that it was found that the defendant owed twenty dollars, which he paid, and which was accepted by Stafford m full settlement for his services.

Appeal by the plaintiffs from a judgment of the marine court, at general term. On the 8th day of December, 1869, these plaintiffs and others, commenced thirteen actions against the defendant, by attachments returnable two days thereafter. Under these attachrnents'the plaintifi removed all the defendant’s goods from her store.

<p>Tlie mere fact of relationship in the ninth degree, or a less degree, on the part of a proposed trustee to a bankrupt or to a creditor—even the largest in amount of a bankrupt, or to a proposed member of the committee to such creditor or to the bankrupt—cannot be regarded as a disqualification, independent of any other facts which might concur with such relationship to make a confirmation of the resolution under section 43 of the Bankrupt act improper. (This seems to override the decision, in this same case. 40 How., 461.)</p>

This action, in the nature of quo warranto, was brought to try the title to the office of justice of the district court of the city and county of New Yprk for the ¿aveiiÜi_judicial districtpññder sectioñ432 of the Code of Procedure. Plaintiff now moved for special jury.'

<p>On application by an attorney for compensation out of the fund in the hands of the assignee, for services rendered by him at the request of an involuntary bankrupt in and about defending against the petition, preparing schedules, &c. jDenied, Upon the petition of an attorney to be paid for services rendered by him, out of the fund in the hands of the assignee, accompanied by the certificate of the register in charge that such services were beneficial to the estate, and that the amount claimed was reasonable and just, followed by the written approval of the assignee, the court will order payment accordingly.</p>

<p>Section 371 of the Code provides for a modification of the judgment appealed from —not a reversal of the judgment in determining the question of costs.</p> <p>Where the appellant specified in his notice of appeal the grounds of the appeal as follows: 1. The judgment is against the weight of evidence. 52. It is not supported by the evidence. 3. On the evidence the plaintiff was not entitled to recover. 4. The judgment is contrary to law upon the evidence:</p> <p>Held, that these grounds contained no specification in which the judgment should have been more favorable to the appellant, unless they be construed as claiming that it should have been in his favor, instead of being against him, which is equivalent to claiming a reversal, which is not contemplated by this section. It was a wholly useless proceeding.</p>

<p>Where judgment was rendered before the justice for the defendant for costs, and the plaintiff appealed to the county court and recovered judgment foT $60 and" costs; and in his notice of appeal alleged that the judgment should'have been in his favor and against the defendant) and there was no evidence to warrant the judgment: *</p> <p>Meld, that this specification of the particulars in which the judgment should have been more favorable to the appellant, did not call upon the defendant to make an offer to modify the judgment, as such specification indicated only a wish to have the judgment vacated, and another entered in his favor, which was not authorised by $ 37L of the Code (See Moran agt. McClearns, ante, p. 77).</p> <p>But the plaintiff, being the prevailing party in the county court, was entitled to costs.</p>

<p>The defendant, in his notice of appeal to the county court, alleged that the judgment of the justice for $169 25 damages and $8 05 costs against him, should have been more favorable to him in the following respects: 1. It should have been in his favor, and against the plaintiffs, for $200. 2. It should have been in his favor, and against the plaintiffs, for damages and costs. 3. It should have been for a less sum, to wit, for only $50 against appellant. 4. It should have been tor a less sum, to wit, for only $75.</p> <p>On the trial before a referee in the county court, the plaintiffs recovered judgment for $155 27 damages, or $13 98 less than the recovery before the justice.</p> <p>Held, that the plaintiffs were entitled to costs.</p> <p>This court has decided at the present term, in the case .of Moran agt. McClearns (ante, p.77),und in Colvert agt. Hall (ante, p. 80),, that a specification that the judgment should have been for the appellant instead of the resppndent, was not admissible under section 371 of the Code.</p> <p>This court has also decided, in Putnam, agt. Heath (44 How., 262), that a specification in the notice of appeal that the judgment should have been more favorable in two sums of different amounts, was not a compliance with that section.</p>

This action was commenced to recover possession of a five hundred dollar bond, or the proceeds thereof. The summons was served on the defendant, Solomon, April, 1870, who employed Whitney & Skinner as his attorneys, who appeared and answered for' him. And on the 31st of August, 1871, the summons and complaint were served on defendant, Frederick B., who retained the law firm of Whitney & Skinner as his attorneys, and they served an answer for him, October, 1871.

<p>Where a defendant has regularly noticed a canse for trial, but through mistake has omitted to file a note of issue with the clerk to have it put upon the calendar, the court on motion has the discretion, under the Code, to.allow such note of issue to be filed with the clerk and the cause placed upon the calendar. But such motion will not be allowed to be made later than the first day of the circuit.</p>

Action, assault and battery. Tried at Steuben circuit.. Verdict for plaintiff. Held: that the fact that the testator’s son James was rightfully residing in the house, gave him exclusive control of it, whatever may have been the arrangement with the testator under which he resided there and that the testator had not the right to expel the plaintiff or to exercise control there, although such right was expressly…

The mortgaged premises having been sold pursuant to a foreclosure judgment in the action, there was a surplus of over. $1,000, after paying the mortgage and costs in the action. On motion of William Burch, Esq., the court appointed B. J. Schofield, Esq., referee under rule 77 of this court, to ascertain and report as to the rights of persons to said surplus.

<p>A bill of items of an attorney’s claim is not made evidence of the statements therein contained, merely upon the testimony of the attorney that he performed the services mentioned in the bill, and that they áre worth the sum therein charged.</p> <p>Creditors who object to the accounts of the assignee do not suffer any of the consequences of a default by. a non-appearance before the register at the auditing of the account.</p> <p>It is the duty of the register in auditing a bill for professional services and disbursements, to examine the items of the accounts as to the necessity and value of the services, and the occasion, necessity and amount of the disbursements and how they came to be rendered and made, and whether they are proper items for such an amount, or whether they ought to be compensated through some other form of proceeding.</p>

Before the commencement of this action, the infant plaintiff procured the appointment of 'a guardian, and the suit proceeded to issue, and was upon the calendar of the present civil term for trial. A motion -is now made by the defendant to dismiss the complaint and action, on the ground that the guardian was, at the time of his appointment and still is, an infant.

<p>The wife of the grantee of mortgaged premises must be served with notice and made a party to the proceedings to foreclose the mortgage by advertisement under the statute, in order to cut off her inchoate right of dower.</p>

This was an action for a divorce brought by the plaintiff against the defendant his wife, upon the ground of adultery. The defendant upon a petition and upon the pleading in this case, moved for the allowance as counsel fees, to enable her to defend the action. The complaint charges the defendant with numerous acts of adultery committed with various persons during the years 1870 and 1871. The answer interposes three defenses. 1.

<p>A city marshal who levies an execution issued upon a judgment of a state court upon the property of the bankrupt, which levy is set aside as void by the bankrupt court ns in violation of the bankruptcy act, has no lien upon the property levied upon, or the proceeds thereof, for the fees, poundage. &c., of such levy, and payment* thereof, out of the fund m the hands of the assignee, denied.</p> <p>It seem, that a judgment obtained before the filing oi the bankrupt’s petition, but with knowledge on the partof the judgment creditors that the debtor is insolvent,, will be treated m bankruptcy as void under the act..</p> <p>It seem, that a judgment creditor who has proved his claim (the judgment) in the-bankruptcy proceedings so submits it to the jurisdiction of that court, that the judgment stands as asimple contract claim stripped of all the verity with which the judgment of the state court has clothed it.</p>

This is a motion on the part of the defendant Howe, for an order directing, that this court proceed no further in the action.

This aettion is false imprisonment. . The defendant by his defense admits the imprisonment, but denies that it was' without authority, or unlawful. In his second defense, the defendant sets up matter in justification. To the latter defense, the plaintiff demurred, on the ground that the facts stated did not constitute a defense to the action. The demurrer is not to the form of the pleading, but goes to the merits.

Appeal by plaintiffs from a judgment of the Montgomery county court, reversing the judgment of a justice of the peace. '

<p>The act of 1835 (L. 1833. Gh. 281), entitled an act to prevent persons from transacting business under fictitious names, prohibits the transaction of business in the name of a partner nut interested in the firm, and requires that the designation and company” or “ and Co.” shall represent an actual partner. A violation of the statute is deemed upon conviction a misdemeanor punishable by fine.</p> <p>Tins being a penal statute, it implies a ‘prohibition, and every act done against it is not only illegal but absolutely void.</p> <p>The prohibition being against transacting business, it renders it unlawful for a person to conduct his business under the designation of “ and company” or u and Co.” unless such addition represents an actual partner, and such person cannot; make any executory contract whatever, which can be enforced by him, while using such prohibited title.</p> <p>Where this statute defense was interposed to a complant by the plaintiffs who were alleged to be partners doing business under the firm name and style of “ Swords, Betty & Co ,” and the employment of the plaintiffs by the defendant as his brokers, to purchase stock—the purchase thereof—the neglect and refusal of the defendant to take the same, and a loss thereupon to the plaintiffs of $3,000:</p> <p>Meld, on demurrer to such defense for insufficiency, that the judgment of the special term overruling the demurrer be affirmed, with costs.</p>

<p>In an action for alleged false and fraudulent representations in the purchase of a suit of clothes by the defendant of the plaintiff, upon a credit given upon the alleged statement by the defendant that he was a law-partner of one M.:</p> <p>Seld, that the production on the trial of M.'s law register (M. being dead), to show that defendant was not a law-partner of M. at the time of the purchase, was of itself incompetent to prove the falsity of such alleged representation.</p> <p>Also parol evidence that M. kept a justice’s court register and day book, which were not produced, wheiein it did not appear that defendant was a law-partner of M. was also incompetent to prove the falsity of the alleged representations.</p> <p>Evidence by the deputy county clerk that during the time that defendant was alleged to be a law partner of M. that At. had pigeon holes in the clerk’s office where his law papers were kept when tiled, and that such papers did not. show that defendant was a law-partner of M. was incompetent to prove such alleged false representations.</p> <p>Also that-Gr. a lawyer, had, at the time, an office in -the same block with M. and had more or less business with him ; that defendant was in the office with M. but tlmt the witness never did any business with them as partners, was insufficient to show that defendant was not a partner of M.</p> <p>Fraud of this description, is a "crime, subjecting the party guilty of it to indictment and conviction for felony, and the party who claims the advantage of it, to aid him in the collection of a debt, must see to it, that it is established by some clear and substanial evidence.</p>

<p>A reward was offered and published by the plaintiffs, as follows: H $5,000 reward will be paid for the arrest and conviction, or information leading thereto, of the pei*son or persons who attempted to murder, and did rob. the messenger of the Am. Merchant's Union Express Company, while crossing the railroad bridge at Albany, on Friday evening, Jany. 6, 1871. For the company, J, C. Fargo, Gen. Superintendent.”</p> <p>After trial, conviction and sentence of the prisoner, several persons claimed the award, in whole or in part.</p> <p>In an action of interpleader by the plaintiffs, held, that it is a case peculiarly proper for such an action. The plaintiffs are ready to pay to the persons lawfully entitled. Some of the defendants .claim the whole ; some claim an equitable distribution. It is evidently a case in which tho matter should be adjusted in one suit, and in. which the plaintiffs do not know to whom they ought to pay the money.</p> <p>Meld, also, that although the reward, strictly construed, might be considered in the alternative, as an offer of that amount for two distinct acts each—for the arrest and conviction, or information leading thereto, yet a paper like this ought to be construed as the public, to whom it was addressed, would understand it, for $5,000, only.</p> <p>Practically, in this case, it appears that it was the information furnished by many parties, which led to the result—not a repetition of the same information, but information of independent facts. And upon the principle that where there is no one individual who gives information that is of itself useful, hut that several persons give different pieces of information, the whole combined leads to the apprehension and conviction of the offender,” it is a proper case for an equitable distribution of the award among the claimants entitled thereto.</p>

Appeal by the plaintiffs from a judgment of the general term affirming a judgment of nonsuit entered at special term. This action was commenced and tried in the life-time of the defendant, Chester Moses, to recover the price of certain goods sold to him through his agent, amounting to $10,-464 67. On the trial it appeared that the plaintiffs were merchants, doing business in the city of New York.

<p>A banh is not authorized to pay a note of its depositor, made payable at the bank,. and charge him with the amount thereof where the depositor, before the maturity . of the note, has notified the bank not to pay it.</p> <p>The relation of a bank with its depositors considered.</p>

The plaintiff obtained a summons for the examination of the defendant before the county judge of Onondaga county, pursuant to sections 390 and 391 of the Code, and while pursuing such examination, certain questions were asked, on behalf of the plaintiff relating to the defense interposed by the defendant, and not pertinent to the affirmative claim made in the plaintiff’s complaint against the defendant.

<p>The purpose and design of the bankrupt law, is to bring the property of the bankrupt into the bankrupt court for administration ; and that courtis furnished with all needful power to liquidate and settle all liens thereon ; and where there are adverse claims, which it is not appropriate or proper to litigate by summary inquiry and order, provision is made by giving jurisdiction to the district court, concurrently with the circuit court, for that purpose.</p> <p>State courts have jurisdiction, it is true, to entertain bills for the foreclosure of mortgagees upon the real estate of a bankrupt, and may, no doubt, properly exercise that jurisdiction, if no objection is made.</p> <p>In general, mortgagees should hot be permitted to pursue the estate of the bankrupt in the state court, but should dome to the tribunal which, under federal laws, is charged with its administration. ,</p> <p>Upon a review by the circuit court of the decision of the district court, denying an application to remove the assignee in bankruptcy, on the ground of bad faith in the management of his trust, this court will deny the application, on the ground that the register and district court had all the proofs before them and their decís-" ion thereon, adverse to his removal, should not be disturbed by this court. In this case, held, that it was either misapprehension on the subject, or a disregard of the proper views of the bankrupt’law, that led the mortgagees into the state court for foreclosure, after the bankruptcy, and after the appointment of an assignee, and that the resistance to any withdrawal of the administration from the bankruptcy court, the proper tribunal, has resulted in bitter personal feeling, • great and unnecessary delay, &e.</p> <p>Also held, time it appears, pending the controversy, the petitioner for the review has become the sole creditor of the bankrupt, and that no other property of the bankrupt has come to the assignee, except the mortgaged premises, and the bankrupt having united in the petition for the substitution of an assignee to be named by the petitioner, as such sole creditor, and the assignee, by his counsel on the argument of this review, declared his entire assent to such change f Therefore, no reason exists why the prayer of the petitioner to that extent should not tie granted.</p>

The . plaintiff recovered a judgment-before a justice of the peace for $95 damages and $5 costs.

<p>A petition (under the laws of 187Í) of the taxpayers of a town, presented to .the county judge for the purpose of bonding the town, for railroad purposes, is palpably defective, where it omits to state that the railroad company zs a corpoYalton in this state.</p> <p>Where the petition contains a condition, as follows: lt If the said The Geneva and Southwestern Railway Company accept the subscription to its stick and payment therefor by the bonds or proceeds as authorized by this petition, they thereby forfeit all right, and hereby agree to make no claim to any bonds of said town of Gorham, or the proceeds thereof by virtue of a certain other petition of the taxpayers of tbe said town, to issue the bonds of said town for a like amount and purpose, which petition was filed with the county judge of Ontario county, October 28, A.D. 1871” :</p> <p>Held, that it is not to be presumed that the petitioners would have given their consent to bond the town in this proceeding for $50,000, if they had understood they were powerless to prevent the company from accepting the bonds, or the proceeds thereof fur $50,000 more, in case the company is successful in that proceeding which is now in -process of review. Yet such is the fact; and if both pioeeediugs are successful, the town may be bonded for $100,000, in spite of the petitioners. This condition is also fatally defective to said petition.</p>

Motion to make more definite and certain, parts of the complaint. The notice of motion asked that certain allegations of the complaint specified in the notice, “ being allegations so indefinite and uncertain that the precise nature of the charge is not apparent, may be required to be made definite and certain by amendment, or that said allegations may be stricken out as irrelevant and redundant.”

This case is reported at page 53 of vol. 42 of Howard’s Hr. Beports, where a statement of the facts will be found, and decision at special term. The plaintiffs appealed from the order allowing the executors to continue the case, to the general term.

Appeal by defendant from judgment for plaintiff entered upon report of referee..

Taxation of costs. The plaintiff recovered judgment against the defendant in 9 justice’s court in an action arising on contract. Defendant appealed to the county court, stating in his notice that such appeal was taken on questions of law only {Code, § 352). The county court affirmed the judgment1 Defendant then brought an appeal to the general term of the supreme court, where the judgment was affirmed, with costs.

Motion by the defendant to ■ set aside complaint, on account of variance from the summons. The summons contains a notice that the plaintiff will, in default of an answer, take judgment for the sum of $61 62 and interest, from March 16, 1870. The complaint demands judgment for the same sum stated in the summons. The alleged cause of action is for services rendered by one Patrick H. Sullivan, as one .of the. police constables of -the city of Lockport.

This action was brought in a justice’s court to recover the value of a cow, which plaintiff claims was wrongfully and unlawfully taken by the defendant. The defendant denies every allegation of the complaint, also denies the plaintiff being the owner of said cow, or having the right of possession..

Are appeal from the second circuit. This case came up on appeal from a decree of Mr. Justice Nelson, delivered in the second circuit, reversing a judgment rendered in the U. S. district court for the southern district of New York.

This is an appeal from an order of the county judge of Otsego county made at chambers, on the 10th day of January,-1872, staying defendant’s proceedings on judgment until the hearing and decision of motion for a new trial .in the county court. The action was tried at the Jane term, 1871, and a verdict for the plaintiff for less than $50. Both parties moved for time to make a case, &c., and an order was entered on the ■defendant’s motion, but none on the plaintiff's motion.

<p>The mere agreement of a landlord to repair, has reference only to the condition of the building or premises demised for the purpose of their.profitable use, and the pecuniary benefit to be derived from their enjoyment or loss from being deprived of their use in such state of repair as the agreement intended.</p> <p>Such a simple agreement or covenant, in no way contemplates any destruction of life or equalities to the person or property”of any one, which might accidentally result from an omission to fulfil the agreement in every respect.</p> <p>For the proposition that a landlord under contract (generally) to keep the premises in repair is fora breach thereof, also further liable to his tenant, as in tort, for wilful refusal or neglect to perform his obligation, no warrant is to be found in principle or authority.</p> <p>His subsequent parol promise, after being notified of defects, to make necessary repairs, unless founded on a new consideration, superadds nothing to his original obligation, and furnishes no ground for awarding additional damages, except so far as the tenant is by such promise delayed and* limited in making them (primarily) at his own expense.</p> <p>A claim cannot exist on the part and behalf of sufferers from defects to a piazza appurtenant to a tenement house, occurring from natural caises—from natural wear and tear, in an action for a tort or negligence against the landlord, whose only obligation exists in contract with the tenant in possession, and one can only be tounded on some other negligence, trespass or wiliul breach of a direct public or private duty to the party injured.</p> <p>In this case, held, that the negligence of the parents, in suffering the plaintiff, a child about three years of age, to wander upon this dilapidated piazza- or balcony, and exposing it to danger and the injuries it received was so gross and unambigious as . to constitute contributivo negligence and should prevent a recovery by the plaintiff for damages for such injuries.</p>

Jury waived, and tried before the court. Almon Lindsley died intestate, May 10, 1867. Letters of administration were issued May 14, 1867, to Isaac M. Lindsley, plaintiff. An action was brought by the plaintiff, as administrator, against Almon E. Lindsley to recover possession of certain securities of the deceased, among which was the Oswego county bond, numbered 224, for $500.

<p>This is an appeal from a judgment of the county court of Niagara county, affirming the judgment of a justice’s court.</p>

<p>Appeal from an order of the special term of Erie county, denying a new trial.</p>

<p>Under the charter of the city of Lockport, an objection to an assessment for the repair of a sewer, which extended the repair a distance of sixty feet beyond which the ordinance directed, held, not sustainable:</p> <p>Held, also, that the objection that the work could not be done except by contract, and after receiving proposals, was not well taken:</p> <p>Held, also that the objection that the .work could not be done until after an assessment for its cost was unavailable:</p> <p>Held■, also that the objection that the territory benefited, &c., was not sufficiently described in the ordinance, was untenable:</p> <p>Held, also that the objection that the principle on which the assessment was made was wrong and unjust, was unavailable:</p> <p>Held, that the objection that a large amount of property stated in the return to be of the value of $24,000, was not assessed at all, for the reason that it was doubtful whether it could be assessed—being mostly, school, church and city property, was fatal to the assessment:</p> <p>Held, also that the objection that in many cases the parcels of real estate attempted to be assessed, were so imperfectly described that they could not be sufficiently identified, was also fatal to the assessment.</p>

This action was on the calendar for trial at the June circuit, 1870, in Washington County, and was put over the circuit on defendant’s application on payment of costs.

<p>In an action of slander, the plaintiff, as a witness on his own behalf, stated, on cross-examination, that he had had litigation with the defendant. He was then asked how many suits he had had with him, and for what causes of action ?</p> <p>Meld, that the court below properly excluded so much of the inquiry as related to the causes of action. It was in no way material or pertinent to the issue. Its materiality consisted solely in its bearing upon the credit due to the plaintiff as a witness, and was therefore collateral in its nature. The end of such an inquiry would result in an' unlimited examination of the previous litigation, and in attempts to indicate the different positions occupied by the parties engaged in it.</p> <p>To the question, whether the plaintiff had not previously sued the defendant for slander and recovered* only $10:</p> <p>Meld, that this was included in that portion of the previous question which the court rejected as improper. That the remarks on that exception was equally applicable to the exception taken to the exclusion of this inquiry.</p> <p>Where on the trial there isa variance between the evidence and the complaint, which the court is authorized to disregard, it will be disregarded unless the defendant proves that, he has been misled to his prejudice.</p>

Appeal by the relator from an order made at special term, denying an application for a peremptory mandamus against the board of police commissioners of the city of Troy, to require said board forthwith to permit and suffer the relator to discharge his duties as captain of the police force of said city, and to execute and deliver to him drafts upon the' chamberlain for the payment of the relator’s salary theretofore earned. • On the 19th day of June, 1871, he was served with…

The action was brought to recover $821 91, the amount of an order drawn by John Gr. Hoffman, in favor of the plaintiff and accepted by the defendant, and payable by its terms out of the fifth payment to which John Gf. Hoffman might become entitled under a certain builder’s contract made with the defendant. The answer alleged that said John Gf. Hoffman abandoned the contract before the fifth payment became due.

<p>Two boys, one twelve and the other five years of age—the eldest leading the youngest by the hand, undertook to cross the Second Avenue, from west to east, near 28th Street in the city of New York, about noon in the day; a Second Avenue street-car was approaching them, and about ninety or a hundred fee south of them, upon an up grade, when they reached the westerly rail of the railroad; and after the eldest boy had cleared the easterly track and the horges, the off horse struck the youngest boy—who was a little behind, knocked him •down and the forward wheel of the car ran over him and severed his right arm near the shoulder.</p> <p>On the trial the testimony showed that the car in which was but a few passengers, was driven with great rapidity—so mnch so that the witness would be unable to get on or off it; that the driver stood on the front platform leaning his shoulders against the car, with loose reins which he was swinging up and down upon the horses to urge them to greater speed ; that with proper driving and cave the car could have been stopped within sixteen to twenty-two feet, and the collision avoided:</p> <p>ffeld, that the judgment dismissing the complaint, and the order denying a new trial upon the judges’ minutes, appealed from, be set aside, and a new trial ordered.</p>

■ The return to the alternative mandamus showed that the board of apportionment and audit had audited and allowed the relator’s claim at one half the amount, and a motion was- made to quash the return and for a peremptory mandamus, to compel the board to audit and allow the relator the full amount of his claim.

<p>No citizen has the right to remove any obstruction on the public street or highway, because such obstruction is a public nuisance. No such right exists in any person, except, one who, apart from the injury which be, as one of the public, sustains in common with his fellow citizens, is especially inconvenienced by the obstruction on the street.</p> <p>Where the plaintiffs caused to be erected without any permission in front of defend- ' ant’s store on Broadway, N. Y., a triangular box seven feet high, and projecting about two feet and a half from the curb upon the sidewalk, around a telegraph pole, and caused their names and business to be printed upon it, using it as a sign—they occupied the adjoining store to the defendants; and the defendants ordered the plaintiffs to remove the box, and threatened to remove it themselves and to obliterate the sign, and upon the plaintiffs refusing the defendants caused the names and sign on the box to be daubed with paint so as to obliterate them?</p> <p>ffeld, that the defendants were liable to an action for malicious trespass, and were properly arrested and held to bail. Motion to vacate the order of arrest denied»</p>

This case (in supreme court.) is reported in-42 Barb.r 390, under the title of McBurney agt. Williams, where the facts are fully stated.

<p>Where a policy of insurance oñ real property contained a clause that “if the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance,’’ then the policy shall be void: '</p> <p>geld, that a sale of the property by the assured to á vendee in possession under a lease, with, a simultaneous mortgage back for part of -the purchase money, did not deprive the assured of an insurable interest in the. property and consequently “ did not avoid the policy. (Following the case of Hitchcock agt. North Western Ins. Co., 26 N. Y., 68).</p> <p>Where a policy of .insurance is issued “to the heirs and representatives of A. K. deceased, M. K., the executrix and trustee of the estate of A. K., took the tide - and might be considered as described by the words “heirs and representatives”." and therefore the assured had an interest in the property insured. . .</p>

This action was tried before James C. Carter, Esq., referee, in New York, and judgment rendered for the plaintiff. The defendant appealed.

<p>While a suit was pending against a party, and after the testimony was all in and the case submitted to the referee for decision, but before any decision is made, the party was declared a bankrupt. Soon after such bankruptcy, the referee decides the case in favor of the bankrupt, an application is now made to the register in charge to order the assignee of the bankrupt to pay the fees of the referee which have been incurred during the reference.</p> <p>Application reported against by the register and acquiesced in by the parties.</p> <p>It seem that it would be competent for the assignee to take up the report, at the expense of paying the fees of the referee, in case he should, in the exercise of a ■ sound judgment, think it necessary iu order to protect the estate from a renewal of the claim in question.</p>

These are different appeals taken from orders made in the same case at different special terms, one from the third, the other from the sixth judicial district, and may be considered together. They involve different questions of practice, but originated in the attempt to secure the same object, to wit, to obtain an injunction against the acts or threatened acts of the defendants.