Volume 46 — Howard's Practice Reports

Motion to set aside so much of the judgment entered as awards costs to the plaintiffs, entered without any application to the court, and without any direction by the court or referee in regard to costs, and without notice of taxation.

<p>Writ of prohibition may issue out of the superior court of the city of New York to iestrain an inferior court.</p> <p>The convention or hoard of police justices of New York, organized under the act of 1860, in appointing and removing clerks, does not act as á court to be restrained, nor their proceedings reviewed by writ of prohibition.</p>

<p>The Commissioners of the Department of Docks of the city of'Hew York have authority by statute to give a written permit to a person to use the side of a pier in the city and the water adjacent thereto, for a floating bath, to carry on the business of a bathing establishment, during the pleasure of the board, with the consent of the lessee of the pier.</p> <p>The act of 1871 provides that the powers and duties therein conferred upon the dock commissioners shall not affect the powers of the harbormasters as now defined by law. But the powers and duties of these several officials, as defined by statute, are wholly distinct and separate.</p> <p>The harbor-masters have no power to remove such floating bath without its being established<either that it is an essential interference with navigation, or that a necessity exists for its immediate use for the purposes of commerce. Until one or both of these questions of fact are determined, the owner of the bath will be protected in his lawful possession by injunction.</p>

The facts, so far as the point upon which the decision turned is concerned, appear in the opinion. cited Foshay agt. Ferguson (2 Denio, 617, 619); Miller agt. Milligan (48 Barb., 30, 33); Haupt agt. Pohlman, (16 Abb. [N. S.], 301). cited Vanderbilt agt. Mathis (5 Duer, 304); Besson agt. Southard (10 N. Y., 236, 237); Bulkley agt. Keletees (6 id., 384); Masten agt. Dayde (2 Wend., 426).

<p>Where the rejection of the testimony of a witness offered in evidence on the trial is relevant, and therefore the rejection is error, yet the judgment will not for that reason be reversed, where it can be seen that the offered testimony is not of sufficient importance, when compared with the merits of the case, to have changed the verdict of the jury or affected the judgment in the case.</p>

Action to recover damages for the alleged wrongful taking and detention of a horse. The cause was tried before a justice of the peace and a jury, in the county of Otsego. The defendant took the horse in question on 12th day of May, 1871, drove the same into Madison county after a load of hop roots, and returned it to the plaintiff on the 17th.

On the twenty-fourth day of ¡November, 1868, the plaintiff and the defendants made and executed the contract of sale set out in the complaint in this action. At the time the premises described in said contract were subject to certain leases at an aggregate rent of about $4,200 a year, payable monthly in advance; all of which would expire •on the first of May following.

This is an appeal by the above named defendant to the general term of this court from an order of special term entered on the 5th day of March, 1873,. denying a motion to vacate and set aside an attachment and order of publication.

This was an action brought to recover the possession of real estate, and the defendant interposed an equitable defense, and the issues were referred to Hon. Charles Mason, who reported against the plaintiffs, or, in other words, in favor of the equitable defense, and directed that neither party should recover costs.

<p>Appeal from a judgment for plaintiff at special term.</p> <p>The plaintiff was the owner of a gold watch worth $125, • and, desiring to raise money on it, applied to the defendant to advance him a certain sum thereon.</p> <p>The defendant let him have eighty-two dollars, and took the watch with the understanding that the plaintiff might have it back again upon paying eighty-seven dollars, within thirty days, after which time the watch was to belong to the defendant.</p> <p>The plaintiff at first testified to a different arrangement, but finally assented to the above as the truth.</p> <p>After the expiration of the time within which the. eighty-seven dollars was to be paid, according to the agreement, the plaintiff tendered that sum without interest and demanded the watch of the defendant.</p> <p>The defendant refused to accept the money and did not give up the watch, whereupon the plaintiff sued him for converting the same to his own use.</p> <p>The court allowed the jury to find whether the transaction was a loan or a conditional sale, and they found for the plaintiff upon that point.</p> <p>The case was then reserved for future consideration, with leave to the defendant to move for a nonsuit or for a new trial, which motion, upon being made, was denied and judgment was thereupon ordered in favor of the plaintiff.</p> <p>The defendant appealed from the order denying his motion for a nonsuit and for a new trial and directing judgment for the plaintiff as well as from the judgment entered thereon.</p> <p>The chief question in the case is whether the agreement between the parties in relation to the watch was a pledge, as claimed by the plaintiff, or a conditional sale, or mortgage, as claimed by the defendant.</p> <p>I. The parties agreed that if the plaintiff failed to pay the specified sum within the specified time, the defendant was to have the watch {See the testimony of Strong and Van Husen, which was not contradicted).</p> <p>See statement of the plaintiff. Bo other witness was sworn •upon the subject of the agreement.</p> <p>The plaintiff is bound by the statement which he admitted to be true.</p> <p>II. The effect of this agreement was, upon the failure of the plaintiff to redeem within the specified time, to vest the legal title to the watch in the defendant.</p> <p>This follows, unless the agreement amounted to nothing more than a simple pledge. If it was a mortgage or conditional sale, then the plaintiff has no remedy at law, and he should have sought relief in equity.</p> <p>III. A pledge consists of a delivery of goods by a debtor to his creditor, to be held until the debt or obligation is discharged, and then to be redelivered to the pledgor; the title not being changed during the continuance of the pledge (Parshall agt. Eggart, 52 Barb., 367-374; Story on Bailments, § 286, 2d ed.).</p> <p>A pledge is a delivery of goods by a debtor to his creditor, to be kept till the debt is discharged (Markham agt. Jaudon, 41 N. Y., 235-241; 2 Kent, 577; Jones on Bailm., 117; Bouv. Inst., 419-242).</p> <p>From these definitions, it is seen that in the contract of pledge the conditions are: (1) the property must be delivered; (2) it must be held until the debt is paid; (3) it must be redelivered on payment of the debt.</p> <p>There are no conditions involving a forfeiture. There is no changing of the title. There is no conflict between the principles here maintained and the opinion of the court in Wilson agt. Little (2 Comstock, 443, ad page 447) when carefully compared.</p> <p>IV. A chattel mortgage is a sale, conveying the title of the property to the mortgagee with terms of defeasance, and if the terms of redemption are not complied with, then, at law, the title becomes absolute in the mortgagee.</p> <p>The nature of the agreement must be such that by the mere non-performance of the conditions by the mortgagor, the title will vest in the mortgagee by the force of the agreement (Parshall agt. Eggart, 52 Barb., 371; Langdon agt. Buel, 9 Wend., 83; Brownell agt. Hawkins, 4 Barb., 491-493; Brown agt. Bement & Strong, 8 Johns., 96; Woodworth agt. Morris, 56 Barb., 9).</p> <p>V. A pawnee does not acquire title to the property simply by the pawnor failing to pay the debt at the time specified.</p> <p>The pawnor’s rights under the contract must be foreclosed; until then there is no forfeiture (Brownell agt. Hawkins, 4 Barb., 493, and cases cited).</p> <p>A mortgagee by his agreement acquires title to the thing mortgaged, subject only to right of the mortgagor to redeem by complying with an express condition, the time being specified, and a failure on the part of the mortgagor to comply 'with the conditions of his contract, by force of the contract, transfers the title absolutely to the mortgagee. The authorities make the distinction exceedingly clear.</p> <p>VI. The agreement, as stated by the plaintiff himself on the witness stand, was as follows :</p> <p>“ The agreement was, I was to redeem it in sixty days, and if not redeemed in that time by paying eighty-seven dollars, he was to have it.”</p> <p>This agreement has every attribute of a chattel mortgage. The title passed to the mortgagee, subject only to the right of the mortgagor to redeem within thé time specified. Failing to redeem, the title vested absolutely in the mortgagee, by force of the agreement.</p> <p>The transaction cannot be called a contract of pledge, without ignoring entirely the agreement itself, and the intent of the parties, if any intent is to be gathered from the agreement.</p> <p>VII. If the court finds the agreement in question to be a fledge, in that case the plaintiff is not entitled to recover</p> <p>To entitle a pledgor to a return of his property, he must make a tender that covers both principal and interest ( Woodworth agt. Morris, 56 Barb., 97).</p> <p>Ho tender was made in this case, covering the principal and the interest, hence the plaintiff was not entitled to a return of the property.</p> <p>VIIL The order and judgment appealed from should be reversed and a new trial granted, with costs to abide the event.</p> <p>This action is brought to recover the value of a watch, alleged to have been unlawfully converted by the defendant.</p> <p>The answer is the general issue.</p> <p>Upon the trial the plaintiff gave evidence tending to show that some time during the summer of 1871 he purchased the watch in question of Dennis Valentine, a jeweler at Syracuse; that afterwards he pawned it to Hr. Blair; and while it was in Blair’s possession plaintiff procured one Van Heusen to take it from pawn, he (Van Heusen) to advance eighty-two dollar's, and take the watch and hold it as security until payment of the sum advanced. After Van Heusen advanced the money and took the watch, plaintiff procured the defendant to advance the eighty-two dollars, and take the watch and hold it as security until repayment of the sum advanced, together with the sum of five dollars. This loan was to he repaid in thirty or sixty days. Before the expiration of the time agreed on, the plaintiff went to the defendant and procured him to agree to extend the time of payment for a few days. , The next day, after the extension was granted, plaintiff went and procured one Hayden to go with him to defendant and advance the money to take the watch out of pawn. The defendant was absent; upon his return the money was tendered, the watch demanded, and the defendant refused to accept the money or surrender the watch. The same money was kept and paid into court on the trial.</p> <p>The defendant gave evidence tending to show that he bought the watch absolutely, with an agreement, also, that plaintiff might repurchase within thirty days, and that plaintiff did not repurchase.</p> <p>The watch was agreed to he worth $125.</p> <p>Upon these facts the court declined to nonsuit the plaintiff, and submitted the case to the jury, with instructions that if they should find the transaction to have been a loan of money by defendant to plaintiff, and the taking of the watch as security for its repayment, then they should find a verdict in favor of the plaintiff. .That if they should find the transaction between the plaintiff and defendant to have been an absolute sale of the watch, coupled with an agreement to resell, then they should find a verdict for the defendant.</p> <p>The jury found a verdict in favor of the plaintiff.</p> <p>Judgment having been suspended, with liberty to the plaintiff to move at special term for judgment, upon such application being made, judgment was ordered in favor of plaintiff; and from the judgment the defendant has appealed to this court.</p> <p>I. The transaction between the plaintiff and defendant was a pawn or pledge, and not a mortgage of the watch (Brownell agt. Hawkins, 4 Barb., 491; Hasbrouck agt. Vandervoort, 4 Sand., 74; Wilson agt. Little, 2 Coms., 443; Reeves agt. Coppen, 5 Bing. N. C., 142).</p> <p>II. The extension of the time within which the plaintiff might pay the sum loaned was valid.</p> <p>III. Even though there was a failure to pay within the time provided for by the agreement, still the defendant acquired no greater interest in the watch than he before had; and this was merely a special property to retain the goods for his security. There can be no forfeiture until the pawnor’s rights are foreclosed (Brownell agt. Hawkins, 4 Barb., 492; note Smith’s Leading Cases, vol. l, p. 360, ed. of 1866).</p> <p>IV. Trover lies against a pledgee of property, who, upon tender of the sum loaned, refuses to redeliver (Brownell agt. Hawkins, 4 Barb., 492; note Smith’s Leading Cases, vol. 1, p. 352, ed. of 1866).</p> <p>V. An action in equity, to redeem the thing pawned, will not lie, unless there are some special circumstances or facts existing which render it necessary to take an account (Hasbrouck agt. Vandervoort, 4 Sand., 74).</p> <p>Equitable jurisdiction is maintained when the plaintiff seeks a redelivery of the precise thing pledged. But when, as in this case, the plaintiff only demands compensation in damages for a failure or refusal to deliver, the remedy at law is adequate ( Wilson agt. Little, 2 Coms., 443; Allen agt. Dykers, 3 Hill, 593).</p> <p>By non-payment of a mortgage at the day, the mortgagee (of chattels) acquires the legal title. Hot so of a pledge; and this is the distinction. In the case of the forfeiture, under a mortgage, equity only can relieve; while, in the case of a pledge, the pledgor’s interest remains the same as before the expiration of the pay day (Story on Bail., § 287; note to Coggs agt. Bernard, 1 Smith’s Leading Cases, p. 360, ed. of 1866).</p> <p>VI. Tender of the amonnt due discharges the lien (note to Coggs agt. Bernard, 1 Smith’s Leading Cases, p. 352, ed. of 1866).</p> <p>VII. An agreement, even, that upon default in payment at the stipulated day the property pawned should belong absolutely to the pawnee, is void, and the pawnor may still redeem (Story on Bail., § 318; 2 Story Eq. Jurisp., §§ 1008, 1009, 1019,1031; Garlick agt. James, 12 John., 143).</p> <p>VIII. The facts in the case have been found by the jury adversely to the defendant’s theory; and the court will not disturb the verdict, as it was found upon conflicting evidence.</p> <p>The judgment should he affirmed, with costs.</p>

The defendant’s answer was stricken out as sham, and no leave afforded by the order to the defendant to serve an amended or new answer. An amended answer was served, which plaintiff’s attorney returned and entered judgment. The motion was to set aside the judgment and to allow amended answer to stand. .

The cause was tried hy a referee,'and his report, which shows the facts sufficiently, is as follows: To the Supreme Court of the State of New York: In pursuance of an order entered in the above action, dated the 22d day of June, 1867, by which it was ordered that said action be referred to me to hear, try and determine all the issues therein, I, William Mitchell, the referee therein named, do respectfully report: I have been attended by both parties and by their respective…

Motion by defendants for readjustment of plaintiff’s costs. The action was brought against twelve defendants, and the summons was personally served on only two of them. The other ten defendants voluntarily appeared in the action by an attorney and answered the complaint. The issues thus joined were tried, and judgment was recovered by the plaintiff against all the defendants.

Plaintiff seeks to recover $13,928.93, the amount of a verdict rendered at the circuit, where exceptions were taken and ordered to be heard in the first instance at the general term.. The amount of the verdict is claimed by the plaintiff for work under a contract with the defendants in regulating and grading section 1 of First avenue, from Thirty-seventh to Forty-second street, Hew York.

The trial of this case commenced at the Saratoga oyer and terminer September 25th, 1873, justice Joseph Potter presiding. The indictment charged the defendant, Pearsall, with perjury in giving evidence on the trial of the civil action of John H. Bullard against said Pearsall at the Saratoga circuit in January, 1871.

This is an action to recover for alleged breach of contract, in that the defendants refused to receive and pay for certain jute hemp which the plaintiffs contracted to sell to them. The written contract is annexed to the complaint, and is as follows: “ Daniel L. Sturgis, Hemp Broker, “ 117 Wall Street, “Hew York, May 19, 1870. “ Sold for account of Messrs. Hewberry & Son, to Messrs.

The action was upheld on the ground that the plaintiff had no other available remedy.

<p>A resident acting trustee, his co-trustee having been absent abroad for a number of years, may receive payment of a mortgage and sign and acknowledge a satisfaction-piece thereof. And a mandamus will issue requiring the register to receive and file the satisfaction-piece and discharge the mortgage.</p>

<p>This is an appeal from a decision at the trial term dismissing the complaint and ordering the exceptions to be heard in the first instance at general term with a stay of judgment.</p>

<p>Where a city charter contains a clause empowering the common council “ To clean the streets and to pass ordinances requiring the same to be kept clean and in proper order and free from encroachment, incumbrance or injury,” th6y have the power to pass an ordinance prohibiting, under a prescribed penalty, any person from using a wagon or cart on the paved streets for carrying a certain number of pounds or over for a load, unless the tires of such vehicle be of a certain prescribed width. But where the ordinance, which fixes the penalty, directs also that the expense of weighing the load be added to the penalty, it is unauthorized. The penalty may be recovered, but not the expense of weighing.</p>

The relator was appointed, on May 1, 1870, deputy clerk of the court of special sessions of the peace for the city and county of New York, pursuant to the act, chaptér 383, laws of 1870, and reappointed as such deputy clerk under the provisions of the act, chapter 373, laws of 1872.

This action is brought to obtain partition of certain real estate of the late John H. McCunn, deceased, upon the ground that certain provisions of his will are inoperative and void. The prayer of the complaint is for an injunction and receiver and other relief.

Motion to continue injunction. in an elaborate and able, general brief stated, on the second point, that the court could not determine the validity of the lease without directly affecting the rights of the South Pacific Railroad Company of Missouri, not a party to the action, as it would be contrary to all rules which govern courts of equity, and against the principles of natural justice,‘citing Story's Eq. Pl., § 77; Mallon agt. Hinde, 12 Wheat., p ; Russell agt.

In this case the property was sold in partition. The purchaser refused to take the title on account of defects in the proceedings, and a motion was made at -the special term to compel the purchaser to complete the purchase. This was denied, and the plaintiffs appealed.

<p>A demurer cannot be stricken out as sham.</p>

<p>In order to entitle a lessee, mortgagee or judgment creditor to redeem after the landlord has recovered possession of the demised premises under a warrant of dispossession in summary proceedings under the statute, a payment must be made to the landlord equal to all the rent in arrear at that time, and all costs and charges incurred by the landlord. Short of this no redemption of the forfeited possession can be effected.</p> <p>The statute does not provide that such required payment shall be reduced by so much as the landlord may have received for rents or other income or benefit, during the period of the landlord’s possession, subsequent to the execution of the warrant.</p> <p>If the landlord can be called upon to account for the rents and income received from the premises during such interregnum, it could only be done after a redemption under the statute has been effected and the lessee is restored to the benefits of the lease of which he was deprived by the dispossession proceedings.</p> <p>But any act done by the landlord, knowing of a cause of forfeiture by his tenant, affirming the existence of the lease and recognizing the lessee to be his tenant is a waiver of such forfeiture; and this result follows without reference to the amount of rent received.</p> <p>If any part of the rent be received by the landlord which accrued subsequent to the breach, he again consents to and establishes the tenancy» which it was competent for him to have avoided. But after the landlord has avoided the lease by a judgment the effect may not be to restore the lease, yet it is a parol acknowledgment of the tenancy.</p> <p>Where the landlord received and retained a certain sum of money paid on behalf of the tenant to redeem under dispossessory proceedings, which sum was insufficient for that purpose, and it being doubtful whether some or all of such money was not collected as rent from the premises subsequent to the dispossessory proceedings by the defaulting tenant, held, a proper case for a reference and accounting.</p>

<p>A valid contract may be made by city authorities for the purchase of fire-works of over $250 in amount, for celebration purposes, without advertising for bids therefor.</p> <p>It is not a valid objection to the payment of such a claim against the city that there is no money in the treasury applicable thereto and appropriated therefor, because:</p> <p>1st. The expenditure was not incurred by any head of a department or any officer of the city government; it was entirely independent of either, and did not, therefore, come within the provisions of section 28 of the charter of 1857;</p> <p>2d. The objection of a want of appropriation is answered by the resolution of the common council, which appropriated for this purpose the sum of $80,000; and the plaintiff was not bound to inquire further than to see that the appropriation was duly made.</p>

The plaintiff alleges his appointment under the act of congress, entitled “An act to establish a uniform system of bankruptcy throughout the United States,” approved March 2d, 1867, and the execution of an instrument by a register in bankruptcy conveying all of the estate of the bankrupt, the 7th of December, 1871, to the plaintiff.

<p>The commissioners of taxes and assessments in the city of New York, in estimating the value of the capital stock of the city railroad corporations, should deduct from the actual value of such stock:</p> <p>1st. The assessed value of its real estate. 2. The value of United States stock owned by it. 3. The value of stock in other corporations owned by it.</p> <p>After these deductions are made the provisions of the statutes directing special deductions are complied with, and it becomes the duty of the commissioners to return the balance of the value of the capital stock, subject to assessment.</p> <p>The mode by which the commissioners are to arrive at the actual value of the capital stock is not pointed out in the statutes, and the same must be left to the discretion of the commissioners ; but they may not disregard any legal rules, and adopt principles erroneous in law, and where they do that then action in fixing such value is subject to review. Beyond that the court will not interfere with such valuation.</p> <p>In ascertaining such value the commissioners cannot disregard the fact of indebtedness. It enters as much into the value of the stock as it does in the assessment of the personal estate of an individual. The capital stock should he valued at what it is actually worth. In ascertaining such value the amount of the indebtedness of the company must enter into the estimate.</p> <p>After making due allowance for the indebtedness of the corporation as diminishing the value of its capital stock, then the estimate of the commissioners will be conclusive, and with it the court should not interfere, as no further deduction of its valuation can be legally made.</p>

Motion by defendant for a new trial. Plaintiff sued to recover commissions on sale of real estate belonging to defendant. Defendant denied employment and sale by or through plaintiff’s agency.

<p>The redemption of land,, by a judgment debtor, sold on execution against him, is governed by the statute. (2 R. S. [Edm. ed.], 384, § 46.)</p> <p>And it is no valid objection to such redemption that the judgment debtor had, subsequent to the sale, conveyed the premises to a receiver, appointed for the benefit of his creditors. Such a conveyance, in its nature, creates a trust for creditors. Subject to the execution of the trust the reversion belongs to the execution debtor, and he has sufficient interest to redeem.</p> <p>The statute gives the right of redemption to an execution debtor, irrespective" of the situation of the title. (The decision in Husted agt. Dakin, 17 Abb., 137, disapproved.)</p> <p>A sale of land under an execution is not conclusive against the execution debtor before the expiration of one year from the sale. (2 R. S., 379.)</p> <p>Where the execution debtor, in proper time, produced the sheriff’s receipt for $73.05, containing the title of the cause in the judgment upon which the premises were sold, stating that “ said money was so paid by him to redeem property sold under an execution in the above entitled cause on the 13th day of April, 1848, situated in the Twelfth ward of the city of New York; the above amount being in full for the purchase-money and interest at ten per cent for all the property sold by me on that day under said execution; ” upon which receipt was indorsed in the handwriting of the attorney for the judgment debtor, stating “I paid the sheriff the above money and took the receipt forF. Price” (the judgment debtor):</p> <p>Held, that this paper was, in substance, a sufficient certificate of redemption under the statute of 1847.</p> <p>It was not necessary that this certificate of redemption should be proved or acknowledged or filed. The redemption under the statute was complete when the money was paid to the sheriff.</p> <p>As in this case the receipt of the sheriff was an official act, and all the parties were deceased who took part in the redemption, it was competent, after proof of such decease, to read the paper in evidence.</p>

<p>In an action to enforce a lien the court has the right, even after the issue joined, to make any person a party who may be necessary to a full determination of the equities involved.</p> <p>While it is questionable whether a creditor who procures a preference by a lien may not be obliged to surrender it in order to commence proceedings under the bankrupt act, it would be against equity to allow him to urge the bankruptcy of his debtor in one tribunal and in another avail himself of the advantages of his lien.</p> <p>Proceedings in a state court may be suspended or controlled by the federal courts, not by acting directly on the former, but by acting on the parties through the instrumentality of an injunction. ■</p>

<p>Where the term of a parol contractbetween the plaintiff and defendant are in dispute, and the evidence presents a question of fact for the justice, to determine what those terms were, and he finds in accordance with the evidence and claim of the defendant, unless there has been some error committed in the admission or rejection of evidence, the judgment upon that finding cannot be disturbed.</p>

The prisoner was tried in the oyer and terminer and convicted of a felony. A writ of error was brought to this court. The return to the writ of' error contains the indictment, the testimony, the charge of the court, the verdict, and the sentence. 3STo record appears to have been made up, and none is returned to this court.

These were mptions argued together for peremptory writs of mandamus; one to compel auditor Earle to audit and allow, and the other to compel comptroller Green to approve and pay to the relator the sum of $312.

<p>Equitable relief, in cases of penalties and forfeitures, is limited to such cases as admit of compensation, according to the original intent of the parties. In cases where the penalty or forfeiture is designed to secure the payment of a certain sum of money, a court of equity will afford relief on payment of the money secured, with interest.</p> <p>As to the covenants in question contained in the lease, the principal end to be attained was the payment to the landlord of the rent reserved, and the discharge of the estate from the taxes and assessments which might be imposed during the term. The right of re-entry reserved to the landlord is the ultimate sanction operating to secure the performance of the tenant’s obligations under the lease.</p>

This action was commenced by the attorney-general for a perpetual injunction, restraining the defendants, Charles H. Mallory & Co., from erecting a shed over pier ISTo. 20, East river, under a permit from the Dock Department, of which the following is a copy: r Seal. LE I C. 1,360. No. 189. CITY OF NEW YORK, DEPARTMENT OF DocKs, • 346 and 348 Broadway. NiW YoRK, A~guet 19, 1873. We, the undersigned, Commissioners of the Department of Docks, hereby permit C. EL.

Oh the 10th of May, 1869, the appellant sold to the-respondent the canal-boat, “Caddie Roberts,” for $1,000, payable as follows: One hundred dollars on the 1st day of September, 1869; $100 on the 1st day of October, 1869; $100 on the first of November and $100 on the first of December of the same year, and the residue in six monthly payments, commencing on the 1st day of June, 1870.

<p>All actions brought in respect of any contract entered into by or on behalf of a copartnership firm, before the death of a partner, must be brought by or against the surviving members of the firm alone. The representatives of the deceased partner cannot sue or be sued in respect of such contract.</p> <p>Not only the remedies but the rights and liabilities of the partnership vest in and are imposed upon the surviving partner.</p> <p>The joint debt may, by reason of the death of a partner, be treated as if originally a separate debt of the surviving partner.</p>

<p>Appeal from an order of special term in proceedings for mandamus.</p>

The relator was employed by the board of supervisors of the county of Hew York as a cleaner of county buildings,’ and assigned to the work of attending the furnaces in and cleaning the offices of the register of deeds of the city and county of Hew York, and was so employed for four and a •half months in the years 1871 and 1872.

The defendants are a religious society incorporated under 'the laws of the state of New York. Held: as well as the Sunday school, a subscription was taken up among the members of the defendants for that purpose; and with the money so raised a lot was purchased and building erected by the trustees of the defendants. The title to the premises was taken in the name of the defendants.

The relators were assessed for personal property for the year 1873 in the sum of $20,000,000, which is the exact amount of their capital stock. Held: except in cases of vessels regularly departing from, and returning to the port where they were registered.

<p>Where there is no sufficient evidence that the husband had the venereal disease, or that he communicated it to his wife, she cannot obtain a divorce from him for adultery without further testimony.</p>

<p>Appeal from judgment.</p>

<p>In estimating damages resulting from repudiation of contract, a referee must base the same upon proof of performance, on the part of the plaintiff, of the several conditions of his contract, and not upon mere speculation and conjecture.</p>

The relator alleged in his affidavit that in November, 1872, he was duly appointed “ counsel to the commissioners of taxes and assessments, in the city of New York,” under the provisions of the act of May 17, 1869; that he thereupon entered upon the duties of his office, and continued to discharge them to and including the 9th day of May, 1873; that his salary as such counsel was fixed by the board of supervisors at $10,000 per annum.

Appeal by defendants from a judgment entered upon the verdict of a jury under the direction of the judge before whom the case was tried, and from an order denying a new trial. The action was brought to recover the sum of $14,949.25, claimed to have been paid by plaintiffs to defendant under a mistake of facts. The case shows that Vermilye and Co. were dealers with plaintiffs, depositing money with them and drawing checks against the same.

<p>The successful party is not entitled to a double UU of costs on two appeals to the general term in the same case.</p>

<p>Where objections are made to the title of real estate in consequence of certain defects in the proceedings, and on reference they are found to be well taken, and it is impossible to cure them, the sale should be rescinded and the purchaser reimbursed.</p>

Memoir to continue injunction. The plaintiff is the lessee for a term of ten years from May, 1870, of the premises on the south-east corner of Sixth avenue and Forty-eight street, in this city, and known as numbers 842, 844, 846 and 848 Sixth avenue.

<p>Appeal from order of Special Term denying motion for commission.</p>

This action was brought to compel defendant to complete a contract to purchase a house and lot of plaintiffs, executors of the last will and testament of Thomas Kerr, deceased, which plaintiffs agreed to convey under the will, they supposing that they had such power. This action, so far as this relief sought is concerned, has been disposed of by the judgment of this court to the effect that the plaintiffs have no power under the will to convey.

The action is brought by plaintiffs as indorsers of a written instrument, reading as follows: “ $12,000. “ San Francisco, February 2, 1865. “ On demand, at 3 o’clock p. m. of that day (no grace), for value received in legal tender notes issued by the government of the United States, I, George 27.

<p>In an action to set aside a mortgage sale upon the ground of fraud in the manner of making the sale, a dem/wrrer to the complaint, interposed upon the ground that the complaint contains no allegation that the plaintiffs tendered back the money realized upon the foreclosure sale, cannot be sustained.</p>

<p>A defendant is not estopped by the execution and delivery of an undertaking to the sheriff from showing the true amount and value of the goods taken by the sheriff, and redelivered to him.</p> <p>Nor can the plaintiff’s affidavit, nor the recitals in the undertaking be used as showing the true amount and value of the goods, where the allegations in these papers are too indefinite and uncertain to justify a verdict for any precise sum or quantity of articles, &e.</p> <p>Executions in these cases must clearly describe the property of which possession is to be delivered.</p> <p>An undertaking given in these proceedings is not required to be sealed and is not a deed, nor does it form any part of the record in the action; it is collateral. As an estoppel in pais it is inoperative.</p> <p>Where the defendant is lawfully in possession of goods under an assignment made to him for the benefit of creditors, a demand, by the plaintiff, of the property before suit brought is necessary.</p>

<p>Motion to strike cause from calendar, upon the ground that it belongs to the circuit.</p>

<p>A person duly arrested for fraud or trover - cannot be discharged from arrest 'on the ground that he is an infant. (The ease of Brown agt. MoGune, 5 Band., 224, has never leen followed in this court.)</p>

<p>Where there is no complete remedy at law, an action in equity is the proper remedy to recover possession of a deed—a paper title of certain property in Ireland.</p>

<p>Where the judgment creditor and the judgment debtor in the judgment, agreed upon a compromise of settlement of the judgment, and that the judgment was agreed to be satisfied on certain specific terms and conditions, and the defendant, instead of complying with the terms of the settlement, wrongfully, if not fraudulently, obtained a satisfaction-piece, prepared and executed by the plaintiff, and deposited by him with a third party to be delivered on defendant’s complying with said terms and conditions of settlement, and filed and entered such satisfaction B piece, and procured a discharge of the judgment.</p> <p>Held, that the plaintiff was entitled to have the satisfaction-piece canceled and the lien of the judgment restored.</p>

The appeal in this cause is taken from an order made at special term on the 7th day of July, 1873, setting aside a judgment recovered for the foreclosure of a mortgage assigned to the plaintiff, the sale made under the judgment on the 17th day of July, 18S7, and the sheriff’s deed given the plaintiff on such sale, on payment to the plaintiff of the amount due on the mortgage foreclosed, and another mortgage held and owned by him at the time of the foreclosure and sale, or…

<p>When chattels are sold and delivered conditionally, the vendor's right to the property remains good as against the vendee, and his voluntary assignee and others, who purchase with knowledge of the condition, hut not as against tona fide purchasers from the vendee.</p>

<p>A bill in equity for the specific performance of a contract is an application to the sound judgment of the court.</p> <p>The court will require, as ground for granting relief in the premises, that the agreement sought to be enforced shall be certain in its terms, mutual in its character, fair and just, founded on an adequate consideration, and be in its nature and circumstances unobjectionable to a court of equity. In agreements between attorneys and clients, even though made under section 303 of the Code, the court will observe the rule of giving the most favorable construction thereof in the interest of clients.</p> <p>Held, that there should be made by the courts, in defense of the honor and ' integrity of the legal profession, a discrimination between contracts properly stipulating a measure of compensation for professional services, and those in which attorneys secure to themselves an interest virtually as owners, in the subject-matter of litigation.</p>

<p>Where a chattel mortgage conveys the whole stock in trade, the whole concern forming the grocery and liquor store of the mortgagor, with the increase and decrrease thereof, and providing for the continued possession of the mortgagor, it is raid on its face.</p> <p>Although a horse, wagon and harness mortaged, did not constitute part of the stock in trade which was the subject of “ increase and decrease,” yet as to the stock in trade, the mortgage being fraudulent as against creditors, that fraud affected the whole mortgage, rendering it wholly void.</p>

<p>When a joint-stock operation has been adjusted by the distribution of stock pro rata, according to the interest paid for by the parties, said adjustment cannot be disturbed at the instance of one of the stockholders.</p> <p>Managers appointed in pursuance of a jointure of interests, to conduct the affairs of the parties joined, are liable for neglect or fraud, but the stockholders stand.to each other in the relation of co-owners of the property managed, and cannot be made liable for the acts of their managers.</p>

<p>In an action against three defendants who were .copartners and for a partnership debt, who appear and answer by the same attorneys and by a joint answer, and two of the defendants have compromised and settled their proportion of the joint liability, a notice of trial served by the plaintiff in the action, in the ordinary form upon the surviving attorney, the other having died, with a notice indorsed on the same, to the effect “ that no personal claim is or will be made on the trial of the cause as against the defendants who hem compromised, either for damages or costs, and that judgment uM be demanded only as against the defendant who bias not settled for the amount of damages and costs for which he may be liable,” is regular as to all the defendants.</p> <p>And where, on the trial of the cause under such notice, the attorneys for the defendants announce that they appear on the trial only for and in behalf of the defendants who have compromised, and not for the other defendant, a verdict against all the defendants, and the judgment entered thereon against all the defendants, is a verdict regularly rendered and a judgment regularly entered as against all the defendants. The proceedings on the part of the plaintiffs in procuring judgment in such a case are regular.</p> <p>Such verdict and such judgment is not taken by default as against the defendant who has not Compromised, or as against the defendants who have compromised.</p> <p>A motion on the part of the defendant who has not compromised, made more than a year after the judgment was entered, and he had notice of it, to set aside the judgment as against him for irregularity, is too late. Where the agreement for .the compromise or composition of the joint liability of the defendants in an action, pending in this state, is made in Ohio, the agreement is to be construed by the laws of New York and not by the laws of Ohio.</p> <p>It is no defense to the defendant who hafe not compromised that the other defendants are discharged from their proportion of the joint liability; it appearing that the agreement was made and discharge given after the copartnership was dissolved.</p> <p>Such a composition or compromise with two of the defendants and joint debtors does not discharge the other defendant and joint debtor. His liability continues.</p>

An inquest was taken in Part I for the sum of $5,000, in April, 1873.

<p>The sheriff is not entitled to any other fees than those expressly allowed by statute.</p> <p>Where a judgment is recovered in the marine court, and a transcript filed with the county clerk, such judgment becomes a judgment of this court, and, on an execution issued thereon, the sheriff is entitled to the same fees as if the judgment was recovered therein.</p> <p>If the execution had issued on the judgment in the marine court, no greater poundage could be claimed. (Per J. F. Daly, J.)</p> <p>On an execution the sheriff’s poundage is limited to two and a half per cent on two hundred and fifty dollars, and one and a quarter per cent on the excess of two hundred and fifty dollars. His charge for advertising sale is limited to two dollars, with one dollar additional if the execution is stayed after advertising and before sale. His fee for receiving and entering execution is fifty cents, and for return thirteen cents ; and for travel, if not more than one mile, six cents.</p> <p>The sheriff, on execution, is not entitled to claim expenses paid to keepers, nor for charges for cartage or storage, nor auctioneer’s charges for selling goods, except when he sells by an auctioneer at the request of the party, nor charges for insurance, nor for cataloguing goods, nor for refunding purchasers’ deposits.</p> <p>If any claim arises in the sheriff’s favor for extra services outside the scope of his official duty, his remedy is by action. Such claim or claims or expense cannot be allowed on taxation which is limited to the adjustment of statutory fees only.</p> <p>If the case of Smith agt. Baldwin (9 John. R., 228) is an authority for the sheriff’s extra charges it should not be followed, as it has been, in principle, overruled by subsequent cases. (Per J. F. Daly, J.)</p>

Motion to set aside an order of arrest. Action to recover the price of goods sold and delivered to the defendant. At the time of commencing the action, the plaintiffs on an affidavit procured an order of arrest under subdivision 4 of section 179 of the Code, alleging that the defendant had been guilty of a fraud in contracting the debt.

This was an appeal from an order made by the county judge of Orange county, striking the defendant’s costs, as taxed by the clerk, from the judgment entered in said action, and inserting therein the costs of the plaintiff. The action was originally commenced in the justice’s court.