Volume 5 — Abbott's New Cases

Appeal by both, parties from a judgment. William C. Kingsley and Abner C. Keeney sued the city of Brooklyn to recover a balance of $178,000, claimed due for work and materials for the Hempstead reservoir under a contract made between the city, by tke Permanent Board of Water and Sewerage Commissioners for the city, and the plaintiffs.

Motion to dismiss complaint. This action was brought by James Bigler, William Chambers,, and George H. Southard, composing the firm of J. Bigler & Co., against the Mayor, &c. of New York, to recover $66,127, balance due on a contract for furnishing lumber, &c., to the department of docks of said city.

Appeal by the defendant from a judgment of the general term of the city court of Brooklyn. Held: to be not exclusive, but concurrent with that of the State courts. Such an action is not a matter or proceeding in bankruptcy of which the Federal courts have exclusive jurisdiction (See Claflin v. Houseman, 93 U. S. 130; Cook v. Whipple, 55 N. Y. 150).

This action was brought by Thomas Stent, against the Continental National Bank of New York, to recover $675 for preparing a set of drawings, plans and specifications for certain alterations in its building in Nassau street.

Demurrer to complaint. This action was brought by Charles A. Clegg, a general advertising agent, against eight defendants— six corporations, and two natural persons, viz: Andrew J. Aikens ; The American Newspaper Union ; The New York Newspaper Union ; The Chicago Newspaper Union; The Aikens Newspaper Union, now known as The Cincinnati Newspaper Union; The Southern Newspaper Union ; The Milwaukee Newspaper Union, and Ansel N. Kellogg.

<p>Answer. — Making More Definite and Certain. — Pleading.— Code of Crv. Pro. § 546.</p> <p>It is not essential that a motion to mate a pleading more definite and certain, be made at the earliest possible moment, but where the time “ to plead, or otherwise move,” has been extended, it may be made at any time before the expiration of such extension.</p> <p>An answer, which “denies each and every material allegation” in the complaint, “contrary to or inconsistent with any of the allegations in the foregoing answers, not heretofore admitted, ignored, or denied, ” is too indefinite.</p> <p>The plaintiff, as well as the court, is entitled to know what allegations of his complaint are denied ; and he cannot be compelled to run the risk of different interpretations of language which would in the one case result in an admission, and in the other in a denial.</p>

Demurrer to an answer. This action was brought by Francisco Montejo and another against Thomas J. Owen and others on a judgment recovered by the former against the latter in the city of New Orleans. The complaint set up, as its cause of action, the recovery of the New Orleans judgment.

Appeal by the plaintiff from a judgment rendered at special term. The action was brought March 9,1870, by Yerina S. M. Chapman against the Phcenix Nationál Bank of the City of New York, to recover certain dividends declared between June 1, 1861, and February 1, 1870, upon 84 shares of the capital stock of the Phoenix Bank, and upon the same stock of the Phcenix National Bank, into which the Phoenix Bank became merged.

Action, for wages. Trial by the court. This action was brought by Henry Gray against The Delaware and Hudson Canal Company for wages earned by himself and others, his assignors.

<p>Assessment. — Striking erom Assessment Boll. — Foreign Corporations. — Place in which Property must be Assessed.</p> <p>Foreign corporations are embraced within the provisions of chapter 37 of the laws of 1855, prescribing the manner in which “all persons and associations doing business in the State of New York, and not residents of this State, ” shall be taxed.</p> <p>The property of a foreign corporation must be assessed in like manner as if it were a resident, or domestic corporation, — viz., in the town or ward “where the principal office or place for transacting its financial concerns shall be,” — and it cannot be taxed or assessed elsewhere.</p> <p>A manufacturing corporation, created under and by virtue of the laws of Massachusetts, doing business within this State, and having its “principal office or place for transacting its financial concerns” in the city of New York, had machinery temporarily in another town, where it had been assessed by the assessors of that town. Held, that such assessment was erroneous, since the company had no “principal office or place for transacting its financial concerns ” within said town.</p> <p>Where the court is asked to affirm or reverse, correct or modify, the assessment roll, which has been brought before the court, the court may order the officer in whose custody it is, to strike an assessment from the roll.</p>

On the rendering of the verdict, the defendants, Daniel C. Rowe, Sumner Babcock and William Post, moved for a new trial upon the judge’s minutes, under section 999 of the Code of Civil Procedure, The motion was denied. Upon taxation of the plaintiff’s costs the clerk allowed for “ motion for new trial on minutes, $30,” and the defendant appealed.

This was a common law writ of certiorari, requiring the Board of Eire Commissioners of the city of New York to return all the proceedings concerning the dismissal, discharge, and removal from office of James Donovan, the relator above named. The matter was argued before Mr. Justice Doetohde, and a decision rendered July 2,1878, reversing said proceedings, with costs and disbursements.

<p>Attorney and Client. — Death oe Plaintive. — Supplementary Proceedings.</p> <p>Upon the death of the plaintiff in the judgment, the attorney who recovered the same has no power, as such, to institute proceedings supplementary to execution. The death of the party ends the authority of the attorney. Proceedings thereafter must be taken in the name, and by the direction, of the personal representives, or successors in interest of the deceased plaintiff.</p>

<p>SUPLEMENTARY PROCEEDINGS.</p> <p>Proceedings supplementary to execution must be instituted in the county where the judgment debtor resides or has a place of business.</p> <p>A second examination will not be allowed unless it is shown that the judgment debtor, since his former examination, has acquired property.</p>

Appeal by defendants from an order denying a motion to vacate an order for the examination of several of the defendants after service of summons and complaint and before issue joined. The action was by David Levy and others against Solomon Loeb and others. The motion was founded on affidavit, and it was denied solely on the ground that the Code of Civil Procedure gives an absolute right to such examination, or in other words, that there is no power to vacate the order.

<p>Examination op Party before Trial. — Requisites of Affidavit to Obtain Order for. — Privileged Communications.— Code of Civil Procedure, §§ 870, 872, 873.</p> <p>The court has power to vacate an order for the examination of an adverse party before trial.</p> <p>Where, upon the return-day of an order for the examination of the defendant after the service of the summons, but before service of the complaint, the defendant objected to be sworn, and moved that the order be vacated, on the ground that he could not be compelled to criminate himself, — Held, that the burden of proof was on the plaintiff to show that there were material matters as to which he could be examined, and upon his failure to do so, the order might be vacated before the defendant was sworn, as it would be an idle ceremony.</p> <p>Where the affidavit upon which such an order was granted, showed that the sole object of the examination was to prove by the oath of the adverse party the publication of a letter, libelous on its face, in a newspaper, and did not show that it was material and necessary to enable the plaintiff to frame his complaint, nor that the publication could be proved by other testimony, if necessary, — Held, that the mere general averment of the affidavit that the testimony of the defendant was material and necessary to the plaintifE in the prosecution of the action, was insufficient.</p>

<p>Jurisdiction. — Action by Assignee in Bankruptcy. — Fraudulent Conveyance. — Chattel Mortgage. — Creditor’s action by Trustees.</p> <p>The State courts have jurisdiction of an action, by an assignee in bankruptcy to disaffirm, and treat as void a debtor’s transfer of his property, in fraud of the creditors* (Frost v. Hotchkiss, 1 Abb. N. Cas. 27; S. C., 14 Bankruptcy Reg. 443, distinguished).</p> <p>An uninterrupted possession and continued disposal and replenishing of a fluctuating stock in trade, under a chattel mortgage, proceeds of sales being used by the mortgagor to pay general liabilities and current expenses, raises a sufficient presumption of fraud, under the statute, to go to the jury, although the mortgage was duly filed.</p> <p>It is for the jury to say, under such circumstances, whether the mortgage was made in good faith.</p> <p>In such case it is proper to instruct the jury that, if the mortgage was not fraudulent, and the mortgagees knew of the sales, but supposed the proceeds were to be applied to the payment of their debt, the mortgagees were entitled to a verdict.</p> <p>Upon the converse of this proposition the plaintiff would be entitled to a verdict.</p> <p>Under the act of 1858, c. 314, — allowing executors, administrators, assignees and other trustees, to disaffirm, for the benefit of creditors, transfers in fraud of creditors, — a trustee need not obtain judgment before commencing a creditor’s action to set aside a transfer as fraudulent.†</p> <p>Hence an assignee in bankruptcy can bring such an action, without having recovered judgment.</p> <p>Collins’ case, 12 Blatchf. 548, distinguished, as not applicable to a case of actual fraud.</p> <p>A chattel mortgage, with an extrinsic agreement or understanding pursuant to which the mortgagor remaining in possession, from time to time sells, and from time to time replenishes the stock, applying proceeds of sales to his own uses or debts other than the mortgage debt, is void as in fraud of creditors.</p> <p>The agreement rendering the mortgage thus fraudulent, may be proved by extrinsic evidence.</p>

Motion, for allowances on confirmation, by surrogate, of an auditor’s report. Emanuel Marx was appointed administrator of the estate of his wife, Celia Marx, and after he had served about a year, was removed, and Mayer Southeimer appointed in his place. Upon the accounting of the former, the latter filed objections to the account, and a reference was ordered.

<p>Signing of Findings of Fact and Conclusions of Law.- — Surrogate’s Decree. — -Surrogate’s Clerk. — Final Accounting.— Power of Surrogate to Complete Predecessor’s Work.</p> <p>In courts of record having equity jurisdiction, findings of fact and conclusions of law must be signed by the justice who tried the cause.</p> <p>In the surrogate’s court the decree is signed by the surrogate, and entered in the minutes which he is directed to keep.</p> <p>By the statute in respect to the surrogate’s court in New York city, the actual signature of the «irrógate is required to all papers of any importance.</p> <p>Where a paper, which was claimed to be the decree of a surrogate, was not signed by him, and there was no evidence of its entry in the minutes nor any record of the proceedings, but it was indorsed “filed,” by a clerk, without any written or even verbal authority from the surrogate, — Held, that it was not a valid decree.</p> <p>A surrogate’s clerk cannot file an unsigned decree, or otherwise make it valid.</p> <p>Where a final accounting of an administrator with the will annexed was had during the term of a surrogate, and the auditor’s report was filed before he went out of office, but the decree thereupon was signed by a following surrogate, but not the immediate successor of the one before whom the accounting was had, —Held, that the decree was invalid.</p> <p>The power of a surrogate to complete the work of his predecessor, is limited to the unfinished records of wills, proofs and examinations, and of letters testamentary, of administration and guardianship.</p>

Foreclosure of a mortgage. Trial by tlie court. This was an action by Catherine H. Ranney against David McMullen and others, to foreclose certain mortgages made by John B. Davis to Lafayette Ranney, to secure the sum of $10,000 each. The facts of the case are as follows: On July 17, 1874, one John McMullen, a son of the defendant, David McMullen, entered into a contract with said John B. Davis, for an exchange of lands.

<p>Signs and Teademabks. — Injunction.</p> <p>On the retirement of a partner from a firm, his copartners continued the business at the old place, and the retiring partner embarked in the same line of business, and on the same side of the same street, and within about fifty feet from the old store, and put up a sign bearing, in the first line, his own name; in the second line, the words, “ of the late firm of;” and, in the third, the name of the old firm; the second line being in letters of good size, yet but little more than a third the height of the letters in the third line. Held, that an injunction should issue to restrain this use of the firm name.</p> <p>There being no good reason for such a distinction in the size of the words it must be inferred that the sign was calculated to mislead, and actual fraudulent intention need not be established.</p>

Plaintiff moved against the defendant Eldridge, for judgment for the frivolonsness of the demurrer, pursuant to section 537 of the Code of Civil Procedure. • The action is brought upon a promissory note made by the defendant Alger, and guaranteed by the defendant Eldridge. The complaint contained but one count.

<p>Motion by defendant for re-delivery of property replevined.</p> <p>The action was by Elizabeth Cullen against Greorge Miller, for the claim and delivery of personal property.</p> <p>The defendant excepted to the plaintiff’s sureties, and upon their failure to justify, made this motion for the re-delivery to him of the property.</p>

<p>Reference. — Waives op Referee’s Oath. — Code of Civ. Pro. § 1016.</p> <p>A referee appointed to hear and determine the issues in an action must take the oath prescribed by section 1016 of the code of civil procedure.</p> <p>A waiver must be entered in the minutes. Even attending and refusing for another reason to go on, does not waive the objection unless a waiver is so entered.</p>

Motion by defendants to discontinue action. The action was by William H. Quincey against John M. Francis and another, for libel. The facts sufficiently appear in the opinion.

Petition for an accounting. The facts were found as follows: I. On March 18, 1876, a resident of the city of New York, being indebted to various persons, made a general assignment for the benefit of creditors to the defendant. The assignment was signed by both assignor and assignee, and acknowledged by both, on March 18, and was recorded on March 20, 1876.

<p>Allowances to Assignee for Benefit of Creditors, for Expenses and Counsel Pees, when Assignment HAS BEEN SET ASIDE, AS IN PRAUD OF the Bankrupt Act.</p> <p>The principles governing allowances for services of counsel to State assignees, laid down in Platt «. Archer (13 Blatehf. 351), approved.</p> <p>Where a voluntary assignment is set aside, because made in violation of the bankruptcy statute, the expense incurred in caring for the property prior to the bringing of the suit, which was proper and reasonable in amount, should be allowed.</p> <p>The expense was incurred for the property within this rule, if the services were properly or necessarily rendered to the State assignee and those services were properly rendered, so far as they benefited and preserved the property assigned, and were not hostile to the suit in bankruptcy.</p> <p>Where the voluntary assignee acts in good faith in accepting the assignment, his disbursements for services of counsel, made in good faith, which are necessarily and properly incurred down to the time that he received notice of an intention to attack the assignment as in violation of the bankrupt law, are to be allowed.</p>

<p>Motion for allowances to counsel of John L. Hill, assignee of Thomas & Co., before the final accounting.</p>

Motion by defendant for security for costs. This was an action by E. Stanley Hall, as assignee in bankruptcy of H. L. Hewlett, against Joseph Phillips and Stephen W. Waterbury, et al., to recover the value of a quantity of merchant tailoring goods taken by Joseph Phillips, a city marshal, from Henry L. Hewlett, under two certain warrants of attachment issued out of the marine court, at the instance of defendants, Waterbury, Smith & Co. This motion was made for plaintiff to…

<p>Apportionment. — Foreclosure of Mortgage. — Vesting of Title on Foreclosure Sale.</p> <p>Where a judgment of foreclosure and sale provides that the surrender of possession can only be required on the exhibition of the deed, that formality may be waived by the party in possession. The actual title passes on the delivery of the deed; and the surrender of possession as of that day may be inferred by the jury, from the acts of the parties.*</p> <p>If the change of title and possession are accomplished intermediate the periods for the payment of storage for goods on the premises, and there is no agreement for apportionment, storage payable subsequently to the change, although partly for a period previous thereto, is payable to the purchaser.†</p>