Volume 44 — Howard's Practice Reports

This is an appeal from a judgment recovered upon a verdict and from an order denying a motion for a new trial, made upon the minutes of the justice holding the circuit.

This was an action brought to recover upon an instrument m writing as follows: “Rochester, February 28,1861, Please pay to Jacob Hinds or order $400, from the proceeds of Leonard & Ives bond, and charge the same to the account of, yours, &c., Adin J. Hinds. To Charles H. Stewart, Esq., Counsellor, &c., New York.” Indorsed “ Jacob Hinds.” Indorsed also as follows: “Accepted, payable as soon as this amount is collected accruing to drawer, Chas.

Motion by the relator to strike out a portion of the order entered herein on the 22d of March, 1872. The order is in these words: “ Before reading and filing the annexed consent, and on motion of E. S. Caldwell, attorney for the respondent, Egbert L. Viele, it is ordered that the writ of habeas corpus, granted herein by the Hon. Daniel P. Ingraham, on the 2Sth day of September, 1870, be and the same is hereby dismissed.

<p>Where by the will of the testator, his wife becomes entitled to the whole of his estate that may remain after payment of his debts. On a settlement of the accounts of the testator’s executor. The executors of his wife (she having died subsequently) are necessary parties.</p> <p>On such settlement the surrogate has power to ascertain the amount of the assets that passed into the hands of the executor, and the amount paid out by him upon the debts of the testator; and upon payment over to the legatees or next of kin</p> <p>• whatever surplus of assets that might remain in his hands, he was entitled to a decree declaring such settlement to be final, and discharging him from the trust.</p> <p>But such a settlement involves no question as to the state of the accounts between the estate of the legatees under the will, except so far as may be necessary to ascertain what should belong to each. In this case that inquiry cannot arise, as the wife took the whole estate, after payment of the debts.</p> <p>Such a settlement involves no inquiry into the state of the accounts between the representatives of the wife and the executor of her husband, either in his character as executor or as trustee of the estate. As executor, he is charged with no duty in regard to the real estate, and his accounts as trustee under a deed of trust in the lifetime of his wife, cannot be adjusted on this final accounting, as executor or trustee. It is only when a trust is created by a last will, that the surrogate has power to settle a trustee’s accounts.</p> <p>Commissions can only be allowed upon receipts and disbursements of money belonging to the estate of the wife. The debt claimed by the executor against his testator cannot be allowed to him until its validity is legally established.</p> <p>As to the claim of the executor to be allowed for debts of the estate, paid by him out of his own means, the only way he can be allowed for them is to treat him as assignee of such debts, in place of the original creditors.</p>

Motion to re-settle costs. This was an action in a discrict court, in the city of New York, in certain summary proceedings, in which the defendant in error was plaintiff, .and the relator defendant. Judgment having been rendered in favor of the plaintiff, d;he proceedings were removed to the supreme court, on a writ of certiorari.

These two cases are appeals from a judgment upon a trial at circuit, .before a. judge, without a jury. The findings of fact are without exception, and the two cases are without material difference. The material portions of such findings are as follows: 1.

This is an appeal from an order directing a reataxtion of costs and the disallowance thereon of certain items before taxed.

Action to revive judgment and have execution against the administrator and one of the heirs at law of the deceased judgment debtor. Demurrer by each defendant separately to the complaint.

On the 18th of March, 1870, the plaintiff and defendant entered into a contract under their hands and seals, wherein and whereby the plaintiff consented and agreed to and with the defendant to sell and convey to him certain lands in the town of Almond, in the county of Allegany, containing about 315 acres of land, and to procure a search of record showing title free of all incumbrances by the first of May then next, and upon performance of the conditions in said contract to…

Action tried without a jury. On the 25th of April, 1870, the defendant, Marsh, and one Banker, now deceased, (for whom his executrix has been substituted,) wrote a letter; of which the following is a copy: “ Troy, April 25,1870.. “Messrs. Allen & Co., New York. Cents. The bearer, Mr. Leonard Wager, Troy, N. Y., is going to start a pedling route to sell cigars and tobacco. He wishes to buy his goods of your firm if you will give him a liberal credit.

<p>An injunction pendente lite will issue to restrain town officers from the issuing of bonds of the town for railroad purposes where it is alleged that the town had no authority to create such bonds by reason of a defect in the petition of the rax payers of the town. The county clerk’s certificate is not conclusive evidence of such authority.</p>

This action is brought for the purpose of recovering $100,000 damages, alleged to have been sustained by reason of the publication and circulation, by the defendant, of an alleged libellous circular, set out in the complaint. Upon the complaint and an affidavit of the plaintiff, Justice Morgan granted an order of arrest holding the defendant to bail in the sum of $10,000.

Appeal by the defendants from a judgment rendered ■against them, at the general term of the superior court of the city of New York. • The following facts appeared upon the trial: On the 16th of January, 1867, Burdeth, Jones & Co., who were auctioneers in the city of New York, sold for the plaintiff, twenty-five barrels of what was called blue vitriol.

This action was brought to recover the value of 1,364 gallons of wine, belonging to the plaintiff which was levied on and sold by the defendant under an execution against Ferdinand Stoessel and Theodore Lingenfelder. The defendant, in his answer, denies the ownership of the plaintiff—the value and quantity of the wine—and the conversion; and, at folio 10, has the extraordinary denial, when looked at in the light of truth, that he never at anytime or place sold said wine.

This is an appeal by the defendants from a judgment of the general term of the supreme court in the first judicial district, affirming a judgment on a verdict at the circuit, in favor of the plaintiffs. The action was brought to recover the balance of the purchase-money of a quantity of goods, claimed by the plaintiffs to have been sold and delivered by them to the defendants under a verbal contract of sale.

<p>The plaintiff sued under the act of 1847, to recover $5,000 for the death of her husband, who was a longshoreman, engaged on July 9, 1866, in discharging iron from a vessel unloading at Pier No. 11, North River. The iron overloaded the pier; it fell, Swords with it; he caught cold ; it resulted in congestion of the lungs, and on July 18, 1866, he died. The appellants owned the south half of the pier.</p> <p>Other defendants were sued, as to whom the complaint was dismissed.</p> <p>The jury found a verdict for $3,-500 against the appellants. They made a motion for a new trial, which was denied,e and from the order upon that motion, and from the judgment, the appeal is taken..</p> <p>On October 19, 1.865, the appellants leased their half of the pier to the Commercial Steamboat Company for five years, from May 1, 1865 (the lessees were in possession from that date, under the preliminary arrangement), by a lease which provided that the pier should be “ kept in order and repair, by and at the cost of the lessees.”</p> <p>During the whole term the pier was occupied under the lease; the appellants were at no time in possession. The rent was regularly paid, sometimes by the lessees, sometimes by others, under or for them, but always under the lease.</p> <p>It was conclusively proved that the pier fell through the fault of the owners of the-steamer “Mauritius,” in making a storehouse for iron.of the pier, the plaintiff’s intestate being employed in discharging that vessel. About eighty-five or ninety car-wheels, weighing five hundred pounds each, and three tons of iron, raised after the accident by. the witness, Henry F. Backus, thirty tons of iron that was not raised, and fifty more car-wheels, and thirty tons more of iron, raised by the Coast Wrecking Company, or about ninety-eight tons of iron were placed on the bridge part of the pier, and crushed' it in, falling with it into the water.</p> <p>The pier was not a new pier. The only witness for plaintiff to its condition was another longshoreman, who testified that the dock gave a crack, the timbers broke off, and that he subsequently examined the timbers, and found them rotten as dirt. He would not, on cross-examination, say he saw two beams that were rotten; said that there were so many timbers underneath the dock that you could not tell whether they were placed on piles or not, and that from fifty to sixty feet in length broke. The other witness for plaintiff on the subject swore that only five to six feet in length fell; no other witness testified to any want of soundness of the pier; and against this testimony was the evidence of the dock builder who repaired the pier, the stevedore who for twelve years had done business on the pier, another stevedore who, .at the time of the accident, was engineer on the pier, and the wrecking company’s agent, who raised part of the iron, all of whom proved the overloading, and proved that though there was a little necessary surface-rot from fresh water, where the plank rested on the cross-pieces, the beams were perfectly sound, and one of whom testified that in the morning of the day the pier fell, he notified the foreman under whom the plaintiff’s intestate was working, that he was getting too much iron on the dock.</p> <p>As the appellants had no legal right during their lease to enter in order to make repairs, and as they had required • their lessees to covenant to keep the pier in repair, it will be seen how great is the hardship that on such evidence of the condition of the pier the jury should have gratified their sympathy for the plaintiff at the appellants’ expense.</p> <p>The appellants moved for a nonsuit, and presented certain requests to be charged by the judge, and the exceptions to the rulings in these respects, and to certain principles charged to the jury, raise the other questions presented by the appeal.</p> <p>The case was submitted to the jury upon substantially these propositions, of which the appellants complain, and which, it is urged, amounted to little less than a direction of a verdict.</p> <p>1. That the appellants were responsible if the pier were out of repair on May 1, 1865, from which date the lease took effect.</p> <p>2. That though there was no evidence of the condition of the pier at any other date than that on which it fell, “ we all know, from our common experience, that wood does not materially decay between May 1, 1865, and July 11, 1866.”</p> <p>3. That it was not contended that the condition of the pier on July 11, 1866, was materially different from what it was on May Í, 1865, though there is nothing in the case to warrant the assertion, and on the contrary, appellants requested the court to .charge that there was no evidence of. want of repair at the execution of the lease.</p> <p>4. That not only was the fact of the lease no defense, if the jury found want of repair at the beginning of the term, but that it was for the jury to say, on uncontradicted evidence, who was in possession on July 11, 1866.</p> <p>5. And the judge then charged, that if on July 11, 1866, the pier were out of repair, the plaintiff was entitled to a verdict, without any qualification in respect to who was in possession under the lease, or whether such want of repair had or had not arisen during the lease.</p> <p>I. The only witness in reference to the lease was William Cruikshank, appellants’ agent. This evidence was not controverted ; it established the lease; that from the beginning of the term the lessors were out of possession, and that there was continuous possession under the lease during the term, by or under the lessees, who paid all the rent.</p> <p>The lease had on it the pencil indorsement, signed by no one, the handwriting of which was not proved, “ ejected November 16, 1866,” four months after the accident. After the accident Mr. Cruikshank employed the dock builder to repair the lease, and compromised the claim against the lessees for the repairs, at fifty per cent. It was proved that there was no ejectment, even in November, and yet upon this evidence the judge left it to the jury to say who was in possession on July 11, 1866. It cannot be shown that the verdict did not proceed upon this point, it is unsustained by any evidence, and equally upon that ground as of the error in leaving the question to the jury should the verdict be set aside.</p> <p>• II. The lease, with a full covenant by the lessees to keep. the pier in repair, relieved the appellants (the lessors) from liability. It will not be contended that an absolute deed would not put at end all such liability. During the term the lease just as effectually put it out of the power of the lessors legally to enter to make repairs, and made the lessees owners pro hoc vice. The lessee controlled the use, and danger was due not to the fact, but to the use of the pier. If the lessee suffered the pier to be used, it was at his peril that he permitted it to be in dangerous want of repair. The lessors had no power to permit or refuse the use, and so could not be charged with any duty to those who did use it.</p> <p>In Rodway agt. Riggs (37 N. Y., 256), the lessee was held liable, and in its opinion the court of appeals says, that by a covenant similar to that in this case, the city (the lessors) exercised due care on its part.</p> <p>III. The appellants were none the less freed from liability if the pier were out of repair at the beginning of the term.</p> <p>The judge held otherwise, on the authority of Moody agt. The Mayor, &c. (43 Barb., 282). In that case the pier was so built that logs of wood projected under the surface of the water, hidden from sight in such manner that the plaintiff’s vessel was caught upon them, and became a total loss; and the liability was put by this general term upon the defective construction of the pier, for which the owner is responsible, and the removal of which did not come within the lessees’ covenant to keep in repair.</p> <p>Congreve agt. Smith, and Congreve agt. Morgan (18 N. Y., 79 and 84), were cases where one who himself made an excavation in a street, was made liable for failure to keep it properly protected.</p> <p>In Cannovan agt. Conklin (1 Abb., N. S, 271), the common pleas general term assumed that the lessor is not liable but held the defendant, because he reserved a right of posession to himself in the part of the pier, the condition of which caused the injury.</p> <p>IV. It was error for the judge to instruct the jury, as substantially he did, to assume that the condition of the pier was the same on May 1, 1865, as on July 11, 1866. Open and exposed to the elements as it was, there was no necessary impossibility that the pier should be in repair on May 1, 1865,-and become out of repair during the fourteen months to July, 1866. However difficult to determine when it was, there was but an instant between the time when the pier was in repair and the time when it became otherwise; and what justified the learned judge, upon mere conjecture, to determine that that instant of time was not between the two dates?</p> <p>V. It was certainly error for the judge to charge that it, the pier, fell from defective condition at the time, the appellants were, on that state of facts, alone responsible.</p> <p>That was to hold that if the pier were well constructed, and in thorough repair at the beginning of the term, still the lessors remained liable; or, in other words, that under all circumstances must the liability of a pier owner continue.</p> <p>VI. It is to be observed that the covenant in this case requires the lessee to keep the pier in order and repair. A pier is rented by a lessee to use as a pier, and a covenant on his part to keep it in good order and repair, requires that it shall be kept in suitable condition for such use, and effectually devolves upon him the duty to prevent use when the pier is in unsuitable condition.</p> <p>VII. The judgment should be reversed.</p> <p>I. The defendants’ counsel requested the court to charge, That there was .no evidence of any want of repair at the execution of the lease.”'</p> <p>This action was against the owners and not the lessees. The evidence showed that the timbers were rotten, and that it would take ten or fifteen years for them to rot in that situation; hence there was evidence to show that they were rotten when the lease was made in 1865. The defendants leased a rotten pier, and received rent for its use, and hence are liable for all damages resulting therefrom.</p> <p>They furnished the means for the infliction of the injury, and are liable as well as the tenant. (Anderson agt. Dickie, 1 Robt., 245; Vandenburgh agt. Truax, 4 Denio, 464; Thomas agt. Winchester, 6 N.Y., 397.)</p> <p>If the injury resulted from the negligence of the owner, either in constructing or upholding the freehold, he is liable, and cannot, by letting, divest himself of such liability. (Eakin agt. Brown, 1 E. D. Smith, 43; Goodley agt. Hagerty, 20 Penn., 389.)</p> <p>“ The entire surrender to a lessee does not relieve the owner from liability to third persons for defects which existed in it When he parted with its control. Nor yet would he be protected by a contract on the part of the hirer to repair such defects, for the mere relation of letter and hirer has no quality which enables the latter to evade responsibility for his own acts, by referring persons injured thereby to a third party for relief.” (Sherman & Redfield on Negligence, § 502; Moody agt. The Mayor, &c., 43 Barb., 282; Davenport agt. Buckman, 37 N. Y., 568; Fish agt. Dodge, 4 Dennio, 311; Benson agt. Suarez, 19 Abb., 61.)</p> <p>“ The defendant constructed a sewer through his own property, which was not made with proper care; subsequently he leased the premises to the plaintiff, and afterwards the sewer burst. Held that the owner was liable.” (Alston agt. Grant, 3 El. & B., 128.)</p> <p>The jury found that the timbers of this pier were rotten and dangerous at the time the lease was made, and were sustained by the evidence-in so finding, as it would take from ten to fifteen years for them to rot, and had only been used one year.</p> <p>Again, a pier in the city of New York is a public street.</p> <p>If it is, the same doctrine applies that applies to any person using a part of the public street for his own purposes he is bound to keep it safe. (Congreve agt. Smith, 18 N.Y., 79; Congreve agt. Morgan, 18 N.Y., 84; Dygert agt. Schenek 23 Wend., 446.)</p> <p>II. - The first exception to the charge is not well taken. The condition of the pier on the 1st of May, 1865, was a material point in view of the cases before cited. The evidence on that question was conflicting, and the court was correct in submitting it to the jury.</p> <p>The second exception is not well taken. There was some evidence that notwithstanding the lease the defendants were actually in possession of the pier at the time. They repaired it after the damage. They were, at that time, negotiating to lease it to Johnson & Higgins. The lease contained a memorandum that the tenants were ejected in 1866, also that the lease was dated back.</p> <p>The third exception to the charge has been discussed under the first point.</p> <p>The fourth exception is not well taken. There was no evidence showing any change in the condition of the pier from the date of the lease to the time of the accident.</p> <p>The last exception was not well taken, for the reason that the only witness who testified on the subject said that such timber would not decay, as this-was in from ten to fifteen years.</p> <p>III. It is not necessary to give evidence of any pecuniary loss in these cases to enable the next of kin to recover. (Baron agt. R.R. Co., 5 Wallace, U.S, 90; Oldfield agt. H. R. R. R. Co., 14 N.Y., 310, 318; McIntire agt. N. Y. C. R. R. Co., 37 N. Y., 287.)</p> <p>IV. We ask that this judgment be affirmed with costs.. •</p>

'An appeal from an order, made at special term, denying a motion for re-adjustment of costs. The action was commenced in justice’s court, where the plaintiffs had a judgment. The defendant appealed to the county court, where a re-trial was had before a referee, and the plaintiffs again recovered. The defendant then applied to the county court on a case containing exceptions for a new trial, and the same was ordered with costs to abide the event.

A Default was taken at the May general term, which was opened by consent, the case to be restored to the calendar and argued that term. The case was so restored by respondent’s attorney and appellants, and respondent waited during the May term for the appeal to be heard ; the, case came within three or four of being reached when the general term adjourned.

<p>In an action for damages for negligently allowing a croton water pipe, by bursting, or otherwise, to wet and do damage to goods and'building situated in the third story of a store occupied by the defeudent, the plaintiff at the same time occupying the first iioor and basement.</p> <p>And it appearing from the evidence, which was submitted to the jury, and upon which they found a verdict for the plaintiff, that in respect to the question of negligence that the plaintiff was quite as much the producing cause of the accident in not having shut off the water in his basement when the store was locked up and left for the night, as the defendants were by having a pump in the third story—the packing of the piston rod of which was so worn as to admit the croton to pass up through it, a fact of which they may have been and probably were entirely ignorant, or in other words, that the plaintiff’s negligence in this aspect of the case is as great in degree as that of the defendants.</p> <p>It seems, from the evidence, to be a case presenting the question of co-operative, mutual, or contributive negligence, which question the courts are usually exceedingly indisposed to take away from the jury, but when it is clearly defined and as palpable as it is in this case, it is a pure question of law, and no verdict of a jury can make it otherwise.</p>

<p>A county judge has power under the Code, to continue on the return of an order to show cause, an injunction order made by himself ex parte in an action in the supreme court.</p> <p>(This is adverse to Middletown agt. Handout, &c., R. R. Co. at special term, 43 How., 144, affirmed at general term, 43 How., 481.)</p>

The plaintiffs sued, in the New York court of common pleas, to recover brokerage for procuring one Moses as a purchaser for a stable belonging to the defendant, situate in the city of New York.

<p>The law of this State passed in 1822. providing that the governor may in his discretion, deliver over to justice any person found within the State who shall be charged with having committed without the jurisdiction of the United States, any crime except treason, which by the laws of this State, if committed therein, is . punishable by death or by imprisonment in the state's prison, is unconstitutional and void</p> <p>The petitioner, it appeared was in custody under a warrant issued by the governor of this State, at the request of the Belgian minister committing him, for surrender to the authorities of that government, as a person charged with having committed murder, arson and robbery in Belgium. It also appeared that he was held under a commitment to answer an indictment for grand larceny.</p> <p>No provision by treaty for the extradition of persons charged with crimes, exists be. tween the United States and Belgium.</p> <p>Held, that the warrant for the surrender of the petitioner to the Belgium authorities is unconstitutional and void, and insufficient for his detention.</p> <p>But the commitment upon the indictment for grand larceny, being under a statute of the State, for bringing stolen goods into this State, his discharge was refused.</p>

The defendant, the American Express Company, is a common carrier. On the 11th of August, 1865, the defendant received from the United States Express Company, at Decatur in the state of Indiana, a package containing money in treasury notes to the amount of $660 63-100, together with the papers discharging John and William White from service in the army of the United States. The defendant, on receiving said package, gave the United States Express Company a receipt for the same.

The complaint and affidavits show : 1 st. Oertel,' author of the paintings “ Rock of Ages ” and “ Christian Charity;” 2d. An exclusive right communicated by him to James to multiply copies of the paintings, and sell them on joint account ; 3d. The reproduction and publication by James, pursuant to contract with Oertel, of chromo-lithograph and photograph copies of the • paintings ; 4th.

This is a proceeding under the statute to enforce or foreclose a lien, under the following acts of the legislature, to wit, mechanic's lien: Act passed April 17th, 1854, applying to certain counties in this state. Act of April 14th, 1858, making the above mentioned act apply to ail the counties of the state, except the counties of New York and Erie.

The action is against the defendant, as a constable, for an alleged neglect to serve an attachment issued by a justice, against the property of one George C. Woodruff, a debtor to the plaintiffs, and was tried before a justice of the peace, of Cortland County.

The action was brought to recover the sum of $3,000, loaned by plaintiff to defendant. The answer contained a general denial. At the trial both parties introduced evidence. The jury found for the plaintiff The defendant moved upon the judge’s minutes for a new trial upon the ground that the verdict was against evidence. The motion was denied. Judgment was entered upon the verdict, and defendant appealed from the judgment and order denying motion for new trial.

The complaint in this action alleged that the plaintiff and defendant made a bet or wager upon the event of a horse race, and the plaintiff deposited with the defendant, as stakeholder, the sum of $60. The answer denied the complaint, and alleged that the defendant was the secretary of the Palmyra Driving Association. That in the summer of 1871, said association arranged and advertised certain races.

The action was brought as an action of claim and delivery-under the code. It was brought by plaintiff as mortgagee of • chattels against the defendant who seized them under an execution against the mortgagor. The defendant claimed that at the time of the seizure the mortgagor had a leviable interest in the property. The mortgage was payable on demand. It was executed May 4th, 1867 ; filed May 5th, 1867; refiled May 4th, 1868, and May 8th, 1869.

<p>To bind the property of which manual delivery cannot be made, by the execution and service of an attachment, the notice accompanying the attachment of a levy upon all the property of the defendant, must specify the particular property sought to be reached, of which manual delivery cannot be made. A general notice with the levy of the attachment is insufficient for that purpose.</p>

John Fitch, register. — This case is pending before me. The following question arose at the adjourned second meeting of the creditors of said bankrupts, held on the 12th day of November, 1872, and was stated and agreed to in writing, as follows: Claims againstthe separate estate of the bankrupt John M. Berrian, including computation of interest up to the date of the adjudication only have been provéd. At the meeting of creditors, held November 12th, 1872, it appears by the…

The cases of Clarke agt. Goodridge (41 N. Y., 210), and of Drake et al. agt. Goodridge (54 Barb., 78) are so imperfectly and incorrectly reported, that much misunderstanding has been caused and great difficulty experienced in determining what was actually decided in those cases. The reporter in 54 Barb., 78, states that they were “motions to vacate attachments,” which is entirely incorrect.

At Chambers, 4 Warren Street, in the city of New York, in said district, on the 27th day of November A. D., 1872.

This cause having been duly called in its ordei upon the calendar, and a trial by jury having been duly waived by the respective parties ,in open court, and the court thereupon, without a jury, having proceeded to hear the proofs and allegations of the parties, and having duly considered the same, finds as matter of fact: That on the 31st day of Dec., 1828, William Smith, as receiver of the estate of William Waring, deceased, duly conveyed to Eben H. Sabine the premises…

<p>The plaintiff on one side and a majority of the executive committee of the defendant’s railroad on the other side, agreed, among other things that the plaintiff, except for a good and sufficient cause shown for his removal, should have the permanent and supreme control in the management of the company’s road and interests, at a salary of $6,000 per year, and an increase thereof in proportion to a certain increase of the company’s profits. That thereupon, March 2d, 1869# plaintiff was elected a director of the company:</p> <p>That at the annual meeting of stockholders held April 5th, 1869, he was elected a director for a full term, and that at a meeting of the board of directors held the next day he was elected vice-president of the company, and thereupon the following resolution was passed by the board:</p> <p>■“Resolved that the vice-president perform the duties of general superintendent of the road, (one of the elective officers of the company) with the right to employ the former superintendent or such other person as he may see fit in his place to" assist him until the further action of the board, and the salary of the vice-president be $6,000 per annum.”</p> <p>It appeared that on the day of the passage of that resolution, to wit, April 6th» 1869, plaintiff assumed the management of the road, and that he continued in such management and in the receipt of a salary at the rate of $6,000 per annum, until July 6th, 1870, when he was removed from such" management, and also from the vice-presidency, by a vote of the board of directors without any cause being assigned for such removal.</p> <p>Heidi that the arrangement between the executive committee and the plaintiff was ■ a contract not binding upon the defendant. The executive committee had no power from the charter, or by-laws to make such a contract personally or as an. executive committee. Besides so far as the passage of said resolution of April 6th, 1869, and plaintiff’s aqniescence therein constituted a new contract, it was one that was inconsistent with the prior arrangement entered into between plaintiff and the executive committee. Being inconsistent, such new contract became, at least to the extent of its inconsistency, a substitute for the prior arrangement. Therefore, under the resolution of April 6th, 1869, the plaintiff was an officer of-the company, and that his term of office was subject to the fifth section of the , by-laws and consequently terminable at the pleasure of the board, and his claim under the arrangement made with the executive committee for a portion: of'' his salary claimed upon the second year was not snstainable.</p>

This action was originally commenced in a court of justice of the peace, in Chautauqua county, for the recovery of the possession pf one buck sheep, claimed to be wrongfully detained by the defendant from the plaintiff, and damages for the detention of the same. The complaint alleged the sheep to be of the value of twenty dollars, and demanded judgment for its return, with one hundred dollars damages for its wrongful detention.

The comptroller of the city of New York, Andrew H. Green, Esq., claimed the right to appoint, under a provision of the chartér of 1870, the deputy chamberlain, and the defendant Foley was so appointed by him. The plaintiff, as chamberlain, denied the right claimed by the comptroller, and brought an action, and moved for an injunction, to restrain defendant from interfering with the business of the chamberlain’s office and from intruding himself into said office.

<p>it is the well stated rule that it is pretty much a matter of course to permit parties to amend their pleadings before trial, when the amendment will produce no delay of the trial, nor work any especial hardship to the adverse party. The terms imposed are usually the payment of the costs of the motion, and such other costs and expenses, if any, as the party will lose by reason of the desired amendment, 'Held, on this motion, that the defendant be allowed, under the above rule, to amend his answer by setting up the statute of limitations.</p> <p>It is the duty of the Court to put statutory defenses, such as the statute of limitations, usury, &c., upon the same footing with other legal defenses.</p>

The action was brought to recover the value of a package of jewelry belonging to the plaintiffs, and delivered by them to the American Merchants Union Express Company to be transported and delivered by said company to A. B. Van Cott, plaintiffs’ agent at Milwaukee, Wisconsin; but which, owing to the negligence of the company, never reached its place of destination.

The action was commenced on a bond given under .the statute for a non-resident as security for costs in the case of Sheldon agt. Lake, in pursuance of an order made on motion. The defendants, as sureties, signed the bond ; one justified by affidavit on being excepted to, and the other declined to justify. The bond was duly filed, but was not approved of.

This action is brought by two plaintiffs, owners, as tenants in common, of two lots on the north side of Broad street, in the city of Utica, against the city and its treasurer, to declare void all assessments made by the city on said lots to defray the expenses of paving, said street, and expenses connected therewith, and to restrain the defendants from enforcing the assessment by leasing the premises pursuant to the provisions of the city charter.

On January 25th, 1866, the plaintiff applied to the defendant for insurance upon the bark Empress, for account of whom it might concern. The application was prepared at defendant’s office by their secretary, Newcomb, and in a conversation had with, and a statement made by the plaintiff, as to the nature and condition of the property, for which insurance was sought.

This was an action to recover a claim growing out of stock transactions. The necessary facts to an understanding of the case will appear in the opinion of the court.

This suit was brought by Alpheus Chapman, plaintiff, against Silas Rose, defendant, and tried at a circuit at Newburgh in November, 1871, before a jury. Hon. Joseph F. Barnard, J., presided. The jury rendered a verdict in favor of the defendant, and against the plaintiff, for costs. W. «Vanamee and Hon. Charles H. Winfield for plaintiff; Hon. W. J. Groo for defendant.

<p>A mortgage of property which contains no covenant or promise to pay the- money secured by it, nor any express acknowledgement of indebtedness by the mortgagor, creates n o'personal liability.</p> <p>It is enough to establish a personal liability against the mortgagor if the mortgage contain an admission of indebtedness on his part, then a promise will be implied and a legal liability created.</p> <p>But all the cases held, however, that to create a personal liability by implication, the admission of indebtedness contained in the instrument must be express and unequivocal. It is only from such an admission that a promise will be implied.</p> <p>The recital in an ordinary mortgage, “ that the party of the first part, in consideration of the Sum of five hundred dollars to him duly paid, has granted, bargained, sold, conveyed,” &c., is hot an admission of indebtedness from which a promise to pay the sum secured would be implied, hence no personal liability against the mortgagor was created thereby.</p>

On an application made for an order to show cause why the appellants should not have thirty days in which to make and serve a case after default, the same was granted at the December special term, 1872, by Hon. Wm. H. Leonard, on condition that the appellants file an undertaking on appeal, as required by law, to stay execution. From this order an appeal was taken to the general term.

This action was tried before Hon. Henry Reigel, as sole referee, who reported in favor of the defendants, and the plaintiff appealed from the judgment entered upon the report of the referee to the general term of the fourth department. The facts, so far as they relate to the points passed upon by the general term, are sufficiently stated in the opinion.

<p>A trial fee of $30 is taxable on the first and second trials each, where the jury 1 disagreed on the first trial, hut found a verdict for defendant on the second.</p> <p>A charge of $15 for services after notice and before trial, not exceeding five term fees, is also taxable for each trial.</p> <p>Also a fee of 10 is properly allowed where more than two days were occupied at each trial, for such trials.</p> <p>A charge for stenographer’s fees for copy minutes of the first trial is not allowable.</p>

<p>As between partners there are no profits nniil all losses and expenses are paid, no matter wlnit the respective interests of the partners may be. Profits and losses, how ascertained on dissolution of a firm, and co-partnership articles in reference * thereto, how construed.</p>

<p>The object of allowing an examination to be had before issue joined, of an adverse • party, under §391 of the Code is not to enable the plaintiff to ascertain whether he has a cause of action, but to enable him to obtain testimony in support of a cause of action, which he has good reason to believe he has, and especially of those facts of which he has reasonable grounds for belifeving the defendant has a peculiar knowledge, which he keeps concealed within his own breast.</p> <p>Nor is it to enable a defendant to ascertain whether he has a defense, but to enable</p> <p>* him to obtain testimony in support of a defense which he has good reason to to believe he has.</p> <p>This case is an action for a libel, and the application for plaintiff’s examination is made upon defendant’s affidavit, which shows the service of a complaint upon him, bub does not describe the nature of the libel. No copy complaint is attached, nor has any been submitted to the court.</p> <p>The affidavit states that the defendant is advised that the examination of the plaintiff is necessary and material for the purpose of enabling him, the defendant, to frame his answer to the complaint, and to plead and prove the facts and circumstances sought to be discovered in justification or mitigation of damages. It also states what he expects to prove by such examination, and concludes by enumerating a great variety of matters.</p> <p>But the defendant does not show by whom he has been advised, as stated—does not say that he has no knowledge or information sufficient to form a belief as to the matters charged against him, and yet does not disclose what knowledge or information he does possess. No facts are stated from which the materiality or necessity of such examination can be gathered.</p> <p>As the case stands, the defendant has not only neglected to bring himself within the rules and practice of the court relative to the examination of a party under §391 of the Code before issue joined, but has failed to satisfy the court of the good faith of his application. '</p> <p>The examination of adverse parties and bills of discovery considered under the common law, the Revised Statutes, court of chancery, and the Code.</p>

This is a motion in the above action and six other actions and proceedings in which the supervisors are either plaintiffs or defendants, to compel a substitution of Mr. Peter Cantine, as attorney for the supervisors, in the place of James M. Cooper & Marius Schoonmaker.

The proceeding was for contempt by a judgment debtor, in violating the inj unction usually embodied in an order for examination in supplementary proceedings. On the day of the examination before a referee, the defendant, as he afterwards testified, “paid out his watch, for $200, to D. D. McKoon & G-.

Motion to set aside a judgment obtained by the defendant’s failure to answer on the 2d day of June, 1853, on the ground that the defendant was an infant, under the age of twenty-one years ac the time of the entry of the judgment, and that no guardian was appointed in the action, and as matter of favor.

<p>The proceedings in an action must be taken and conducted in the name of the attorney of record. Before another attorney can act or be heard in the cause he must be regularly substituted of record so as to show his authority.</p> <p>A party has no right to interfere with the due and orderly conduct of a suit by his attorney.</p>

<p>Motion to vacate judgment and to discharge the defendant.</p>

• The plaintiff complained for a balance due on freight of a cargo of coal, and for delaying plaintiffs boat seven days, and demanded judgment for $200.

<p>On a motion to discharge a defendant from arrest, the order of arrest or a copy thereof, and the papers upon which it was founded must be presented to the court, an affidavit stating generally then* contents is not sufficient.</p> <p>A defendant cannot move fov^kn order to discharge him from arrest, before he hag been actually arrested by the officer.</p>

<p>Od an appeal from a judgment entered by the direction of a single judge to the general term of the same court no security is required, but if a stay of proceedings is desired, an undertaking must be given, the same as required ou an appea to the court of appeals.</p> <p>Where an undertaking is filed at the time of the service of a notice of appeal for tbe purposes of a stay, which undertaking is disapproved, the appellant should move for leave to file and serve a new undertaking nunc pro tunc as of the time of filing the notice of appeal.</p>

<p>It is only where an article is contracted for to be applied to a particular purpose, and in such manner that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, and not to his own, that there is an implied ‘warranty that it shall be reasonably fit for the purpose to which it is to be applied.</p>

<p>On a motion for a new trial on the ground of newly discovered evidence in this case, it did not appear that the evidence alleged to have been newly discovered went to impeach the credit of any witness or party, examined as a witness on the trial; that it. did not relate to any new fact upon which evidence was not given on the trial, and what evidence there was stated and claimed to be material was merely cumulative. Motion denied.</p>

The defendants appealed to the general term, and the appeal is now pending. Another action by the same plaintiff against the Harmony Insurance Company to recover on another policy for the same loss was pending and untried, when in May, 1870, the plaintiff applied to the special term for a commission to issue to examine witnesses in both actions, and an order made allowing the commission in each of the actions.

<p>Where a corporation, in their by-laws adopt the rules in Cushing’s Manual for the government of all debates of its members, and no other provision is made on that subject in the by-laws, Cushing’s Manual must control tiie members of the corporation in that matter.</p> <p>That provides that if offensive words are not taken notice of at the time they are spoken, but the member is allowed to finish his speech, and then any other person speaks, or any other matter of business intervenes, before notice is taken of tiie words which gave offense, the words are not to be written down, nor the member using them censured.</p> <p>Therefore, where a member in debate, at a meeting ofUhe corporation, uses what are considered offensive and impioper words, which aro not objected to or noticed at tiie time or during the meeting, he cannot be tried and expelled for using those words upon charges made at a subsequent meeting. Such expulsion is irregular and without authority.</p>

<p>A Referee cannot disregard undisputed evidence,'nor judicially infer something else to be true, of which there is no evidence.</p> <p>A refusal to find facts of which there is evidence undisputed, and an exception to such refusal, raises a question of law to be heard by the court of appeals.</p>

<p>Motion for a new trial made by plaintiff, the verdict having been for the defendant.</p>

<p>There is no presumption of law that a person who commits suicide was insane, or that the fact of suicide is prima facie evidence of insanity (Freedman, J. dissenting. See his opinion).</p> <p>Aside from extrinsic facts and circumstances, the law presumes that every person who destroys his own life, is sane up to the very moment when he does the act which causes his death. It cannot therefore be properly said that the commission of that act, not only removes the presumption of sanity, but establishes a legal presumption that he was then insane (Per Barbour, Oh. J).</p>

<p>Where the_ defendants in this case procured a settlement, with the design to deprive the plaintiffs attorney of his costs, held, that they could not be permitted to have the benefit of a discontinuance or of a supplemental answer showing settlement without payment of the costs of the action up to the present time.</p>

<p>Motion for leave to amend answer during the pendency of a reference to determine the issues.</p>

<p>The examination of a party, provided for in section 391 of the Code, is now regulated by Rule 21, and -/can only be had, before issue joined, either to enable the plaintiff to frame his complaint, or the defendant to frame his answer.</p> <p>The affidavit upon which the application for an order of examination is based, must show the materiality of the discovery sought, for the purpose of framing the pleading; and if the materiality does not appear, the application should be denied.</p> <p>The defendant who applies for such an examination, in order to frame his answer . to a complaint which has not yet been served, cannot show the materiality of the discovery, because he does uot kuow what the allegations of the complaint are V</p>

This action was instituted by the wife against the husband for a divorce, on the ground of the husband’s adultery. A judgment dissolving the marriage was entered on the 3rd day of August, 1852, but did not contain any provision for alimony. The further proceedings in the action and upon the judgment will appear in the following findings of the referee to whom upon this motion, it was referred to take proofs.