Volume 5 — Abbott's New York Practice Reports

This action was brought by Theodore T. Edgerton against Albert W. Page, to recover a quarter’s rent of the first floor of a building in Eulton-street, New York city, leased to defendant by plaintiff. The lease of the premises was for one year from May 1, 1854, with a privilege of one year more at the same rent. The suit was brought to recover the rent for the quarter, from February 1 to May 1, 1855.

<p>Pleading.—Complaint in Action against Trustees of Corporation Making Dividend out of Capital.—Parties.—Action by Receiver.</p> <p>Where an insurance company, organized under the general law applicable to such companies, being insolvent, distributes its capital among its stockholders, thus placing it beyond the reach of its creditors, it acts in fraud of its creditors, and such fund may be recovered back from those who received it, by a proper action commenced by the proper parties.</p> <p>The complaint in such case need not aver that in making such distribution it was done with an intent to defraud the creditors.</p> <p>The receiver of the company, since he represents the creditors, is the proper person to bring such action. No creditor can individually maintain an action against an individual stockholder, for the share so illegally distributed to him; the liability is to the creditors generally, and the action should be commenced by some party representing all the creditors.</p> <p>In such action it is proper for the receiver to join as defendants any creditors who have instituted such suits, and those who threaten to do so, for the purpose of protecting the stockholders from a multiplicity of actions.</p>

This action was brought by the Mechanics’ Bank of tire city of Mow York, against John Straiton, Charles GK Sanford, and Thomas J. Raynor, on a check drawn by the defendants. The allegations of the complaint were as follows :— That said plaintiff is a banking association duly organized under and pursuant to the laws of the State of Mew York, and is now, and for several years last past has been engaged in business as such banking association at the city of Mow York.

This action was commenced by the service of the summons and complaint on the defendants (of whom there were three), on March 14,1857. There was no answer, or appearance, by either of the defendants. The time to answer the complaint expired, as to all the defendants, on April 3,1857. The costs were taxed and judgment entered in Wayne county clerk’s office on May 14,1857.

This action was brought by Isaac 0. Kendall against Thomas H. Treadwell and wife, and thirty-eight others. The complaint set forth a bond and mortgage given to the plaintiff, by the defendants, Treadwell and wife, dated December 8, 1853, and duly recorded in the register’s office of Kings county, covering premises on First Place, in the city of Brooklyn.

<p>Motion for a new trial.</p> <p>'This action was brought by James K. Hill against George Place, on a promissory note, made by defendant, payable at the Hanover National Bank, in the city of New York.</p> <p>The defense set up was, that on the last day of grace there was sufficient money deposited in the Hanover National Bank to pay the note, which money was allowed to remain there for the purpose of paying the note, for several days.</p> <p>There was no allegation in the answer to the effect that defendant, simultaneously with putting in the answer, . brought the money into court, or to the effect that the money had been brought into court prior to the putting of the answer. In point of fact, the money had never been brought into court.</p> <p>On the last day of grace, between 10 and 11 o’clock in the morning, the note was presented at the bank for payment, and payment demanded, which was refused. Subsequently to this demand, the money to pay the note was deposited, but no notice of this fact was given to the holder of the note, nor was the note again presented for payment at the close of banking hours..</p> <p>There was proof that it is the custom to present notes for payment between ten and three o’ clock, but that the maker has until three o’clock to pay the note, and it cannot be protested until after three ; that, according to the custom, it is necessary, if a note on a presentment made prior to three o’ clock is not paid, to present it again after three o’ clock before it can be protested.</p> <p>The court directed a verdict for the plaintiff.</p> <p>The defendant now moved, on the minutes of the judge before whom the case was tried, for a new trial.</p>

<p>Acquittal.—Plea of Autrefois Acquit.— Variance, or Failure of Proof.</p> <p>To sustain the plea of a former acquittal as a defense to an indictment, it must appear that the party was "put in jeopardy ” by the former trial.</p> <p>A. plea of an acquittal, alleging that it was "on the ground of a variance between the indictment and the proof, the variance being that the proof failed to show ” certain facts necessary to establish the offense alleged, is not sufficient, under the provisions of the Revised Statutes, as a bar to a trial and conviction upon a subsequent indictment for the same offense.</p>

This action was brought by Jacob H. Borrowe and Jane, his wife, against Mary W. Milbank.

This action was brought by Alceste Button against Emanuel McCauley, to recover damages for an alleged breach of a promise of marriage. The defendant’s answer was a general denial of all the allegations of the complaint. The cause was tried in 1881, at a circuit, in the seventh district. The plaintiff was called as a witness in her own behalf, and her testimony tended to establish the fact of a contract of marriage between the parties.

‘Motion to compel compliance with a former order of the court. In this action, which was brought by David L. Gardner against Julia E. Tyler, William Watson, the attorney for the plaintiff, was served, on the 30th day of August, 1887, with an order, made by one of the judges of this court, to show cause why R. W. Townsend should not be substituted in his place as attorney for the plaintiff.

This action was brought by Israel Elias and Aaron Elias against Benjamin Early, sheriff of the county of Niagara. The defendant justified the taking by virtue of several judgments and executions against Samuel M. Weiner, claiming the goods seized to be the property of Weiner.

<p>Motion to correct' a complaint, by striking ont irrelevant matter.</p>

Motion to modify an injunction. This was an injunction suit brought by Richard S. Roberts against the Mayor, Aldermen, and Commonalty of the city of Hew York.

<p>Real Property.—Building- by Trespasser.</p> <p>A building erected upon the land of one person by another person, without any authority or agreement in respect thereto, becomes a part of the realty, and passes with a conveyance of the land.</p> <p>To take the case out of this principle, on the ground that the building was erected by a tenant for purposes of trade and business, it is not enough to show that it was occupied for the purposes of business, but the existence of the relation of tenant must be made out by express proof or clear - implication, and it must also be shown that the building was erected by the tenant for the purposes of trade or business, and that he exercised his right of removal during the term.</p>

This action was brought by Augustus Prentice against Byron J. Wilkinson, to recover the fees of the plaintiff, aai attorney, upon a promise made under circumstances stated in the opinion of the court.

<p>Partition Suit.—Appointment of Guardian.—Proceedings.— Dower Right.</p> <p>Except in the first judicial district, an order for the appointment of a guardian ad litem, of an infant defendant in a partition suit, can only be made by the court.</p> <p>But in the first district such order may be made by a judge at chambers; and it operates as an order of the court.</p> <p>What is necessary to constitute a valid appointment of a guardian ad litem for an infant married woman, defendant in a partition suit.</p> <p>Where a sale is made in partition, within three years from the death of a former owner of the lands, the purchaser should be allowed, if he elects, to have a reference to ascertain whether there are any unpaid debts of the ancestor, for payment of which the land might be sold under order of the surrogate, and whether any will was left by him; and if either matter be found in the affirmative, the purchaser must be discharged from his purchase.</p> <p>What order should be made for protection of a purchaser in partition against a contingent dower-right.</p>

This was an action for the alleged wrongful conversion of bonds belonging to the plaintiff. The defendant was arrested upon affidavits, among which was one made by his wife, from whom he had been separated ; and his property, both real and personal, had been levied on by the sheriff, under an attachment issued as a provisional remedy, under the provisions of the Code. I. April, 1868. Motion to vacate order of arrest.

Motion to vacate a judgment for irregularity, or to open it and allow defendant to come in and answer upon terms. This action was commenced about February 2, 1857, upon a contract of defendant to pay to the plaintiff a certain annual sum for life, in quarterly payments; and was brought to recover three quarterly instalments.

This action was brought by Henry W. Rosebrooks, plaintiff (and respondent), against William B. Dinsmore, president of Adams Express Company, defendant (and appellant), to recover the value of goods shipped for plaintiff by the defendants in the fall of 1862, from New York, to a consignee (Cantwell) at Harper’s Ferry, Virginia.

In this case the plaintiff commenced summary proceedings before a justice of the district court of the city of New York for the first district of this city, to obtain possession, of a house and lot on Broadway. The justice gave judgment for the defendant. The plaintiff appealed to the Common Pleas from such judgment : on the hearing of the appeal, the respondent objected to the jurisdiction of the court.

Motion to quasli a warrant. These proceedings were taken by William H. Goodwin against M. D. L. Sharkey. The facts are sufficiently stated in the opinion of the court.

Motion to set aside an execution. This action was commenced in the New York Marine Court. The plaintiff recovered a judgment before a single justice for $235.50, from which the defendant appealed to the general term. The sureties in the undertaking 'filed by the defendant on his appeal, justified in the sum of $500 only. The plaintiff filed a transcript of his judgment, issued execution, and caused the same to be levied.

This action was brought by Alexander T. Stewart against Siegfried Isidor and Julius Blumenthal, as debtors, and Moritz Isidor, their assignee. The facts are fully stated in the opinion of the court.

Motion to dismiss the action on the ground of irregularity in the summons;—and also to reduce the amount of bail given by the defendant. This action was brought by Mary Ann McDonald against George Walsh, to recover damages for a breach of promise to marry. The summons was drawn according to subdivision 1 of section 129 of the Code, which was the irregularity relied upon; the defendant contending that subdivision 2 of that section should have been followed.

<p>Injunction.—Additional Affidavits.</p> <p>On motion to dissolve an injunction, the plaintiff-cannot support his original application by additional affidavits to those on which it was based; nor can such affidavits be permitted to be read, unless the defendant byhis answer sets up new matter m avoidance of the plaintiff’s claim.</p> <p>This rule is applicable to a motion for an injunction; and the plaintiff will not be allowed to read new affidavits "to meet those put in by the defendant, unless the latter set up new matter in avoidance.</p> <p>The authorities on this subject reviewed.</p>

<p>A party to an action cannot be compelled by the adverse party to make an affidavit for the purpose of a motion, under subdivision 7 of section 401 of the Code of Procedure, as amended in 1862.</p> <p>The case of Fisk v. Chicago, Rock Island & Pacific E. B. Co.., 3 Abb. Pr. N. S., 430,—disapproved on this point.</p>

Motion to dissolve an injunction. The defendants, Manara and De bTegre, obtained a judgment in the supreme court in the first district against the defendants, Albites and Steffanone, for $10,454.84. The plaintiff in this action, a special partner of Albites & Steffanone, sought by the action to set aside that judgment, upon the ground of fraud and collusion, and he obtained a temporary injunction to restrain the sale thereunder of the property of the firm.

This action was brought by Joseph Stringham upon a policy of insurance issued to one Spaulding, under whom he claimed as assignee. The facts are fully stated in the opinion of the chief justice.

Order to show cause why the defendant should not be punished as for a contempt. This action was brought by Daniel D. Conover against Fernando Wood’, mayor of the city of New York, and James C.. Willett, sheriff of the city and county of New York. A warrant of arrest having been granted against the defendant Wood, it was placed in the hands of Frederick W. Perry, one of the coroners of the city and county of New York, to be executed.

<p>Appeal from an order fining defendant for contempt.</p> <p>This proceeding was instituted in the name of the People on the relation of Auguste Woel and others, against Richard Kingsland, a judgment debtor, against whom the relators had instituted proceedings supplementary to execution.</p> <p>The proceedings supplementary to execution were taken under the provisions of the Code of Procedure on that subject, in order to compel the payment of a judgment of §3,384.20, rendered July 7, I860. At the time of serving the order, the relator caused to be served upon the defendant an order in the nature of an injunction order, by which he was forbidden to transfer or make any disposition of his property, or in any manner interfere therewith, until the further order of the court.</p> <p>The defendant was examined on various days, commencing in October, and ending on the fourteenth of December, 1865. It appeared from his testimony that he had in the Manhattan Bank to his credit, at the time the order was served upon him, the sum óf $546.15, and that during the month of October he drew out upon his check all of this money except a balance of $31.65. The bank account was headed “Manhattan Bank in account with Richard Kingsland, in trust.” It further appeared that the moneys so drawn were drawn upon checks signed by the defendant, individually, and expressed to be for “ family,” for “board,” for “office,” for “diff. on stock,” “Ed. Baldwin.” Upon an order to show cause, the court below adjudged him guilty of a contempt in using this money, and imposed upon him a fine of $1000.</p> <p>Upon an appeal to the general term the sum was reduced to $400, and the order was affirmed to that extent.</p>

Demurrer to complaint. This action was brought by Catherine E. Casey, by her guardian, against Francis Mann. ' The complaint stated that the plaintiff received great injuries on her head and back by the giving way and falling down of a back stoop and stairs on a certain building owned by the defendant ; that the said stoop and stairs were in a bad condition of repair, and had been provided by the defendant for the access of the residents of the premises to a back yard, and…

Hotion on behalf of a purchaser at a sale of premises in partition, to be discharged from his purchase. The suit in partition was brought by Benjamin Mead against William Mitchell and others. The complaint set forth that the plaintiff and one Ellen Tooker, prior to the year 1843, were owners as tenants in common of a certain lot with a store thereon, in South-street in the city of New York, each entitled to one equal- undivided half part thereof.

In the month of September, 1865, Griffin was declared a lunatic. His wife and one George E. Ranous were appointed committee of his person, and Ranous was also appointed committee of the property and estate of the lunatic. In July, 1868, Mrs. Griffin applied by petition to have Ranous removed, making various charges against him. The matter was heard on affidavits before Mr. Justice Cardozo, who removed Ranous, and substituted James M. Sweeney, Esq., in his place.

This action was brought by Eunice Parker, one of the-heirs of Joseph McCluer, against Porter McCluer, a grandson of said Joseph, to recover the possession of land left by the said Joseph. Both parties claimed as heirs at law of the decedent.

Writ of error. The plaintiff in error was convicted of murder in the court of general sessions of the city of New York, at the-June term, 1867, and sentenced to be executed. A writ of error and. stay of proceedings was obtained, and the case was removed into the supreme court for review: where the judgment was affirmed at the September term, 1867, from which affirmance the case was removed into the court of appeals.

This action was brought by William Barker, plaintiff, appellant, against William White and Freeman Clarke, administrators, and Phoebe Sherman, administratrix of George W. Sherman, deceased, defendants, respondents. The plaintiff alleged that he was formerly a partner with the defendant White and with the decedent Sherman. That he lent the partnership $1000, for which the firm gave him their note, which he still held.

<p>Appeal.—Exceptions to Repoet.—Damages on Af-FIEMANCE.</p> <p>In an action of an equitable nature, to close the affairs of a copartnership, the court of appeals can only review questions of law raised in the court below upon rulings to which proper exceptions were taken.</p> <p>Exceptions which present questions of fact only, or relating to the admissibility of evidence, without stating the ground of objection, are not available.</p> <p>In such a case, however, the court affirmed the judgment without awarding damages on the appeal to the respondent, in consideration of the appellant’s case being a hard one.</p>

<p>Injunction. — Literary Property.— Uncopyrigiited Drama.</p> <p>The common law right of the author of an unpublished manuscript to its exclusive use, pertains only to the unpublished work; and after unrestricted publication to the world, neither the author, whether a foreign or a domestic writer, nor his assignee, can assert an exclusive right to property, in its future use and publication.</p> <p>After an uncopyrighted drama has been, with the sanction of the author, represented upon the stage, without any restrictions or conditions imposed upon the spectators, the court will not, at the suit either of the author or of his assignee, enjoin from reproducing the same drama, other persons who have obtained copies by seeing and hearing such representation.*</p>

This action was brought by John Browne, Eeceiver of the Globe Insurance Company, against George T. Bradley. Judgment was recovered in Oneida county against the defendant on July 20, 1855, for $1650.67, being for premiums, &c., collected by the defendant, as agent for the Globe Insurance Company.

This action was brought in the New York superior court, by Nathaniel Hayward against the Liverpool and London Fire and Life Insurance Co., to recover on a policy of insurance against tire.

Motion, to compel plaintiff’s attorney to receive unverified answers;—or, if that relief should be denied, then for leave to put in verified answers. This was an action for libel against the alleged author and publishers of an article averred in the complaint to have been published of and concerning plaintiff, in the Mew York Daily Times. The article complained of is set out in a report of previous proceedings in the case.

Demurrer to amended complaint. The action was brought by John A. Ward against Amelia C. Ward. The plaintiff in the first four paragraphs of the amended complaint, averred that the parties were married, had one child, and that the defendant had without his consent abandoned him. The fifth paragraph “for a further cause of action,” averred the adultery of the defendant.

This action was commenced in a justice’s court; and on trial of the cause before the justice and a jury a judgment was rendered in favor of plaintiff. From this judgment the defendant appealed to the county court of Wayne county.

<p>Injunction on Proceedings at Law.—Powers of Courts.—</p> <p>Contempt.</p> <p>After the commencement of an action in the N. T. Superior Court, the defendant therein obtained in the Supreme Court an injunction restraining the plaintiff in the Superior Court from prosecuting the action. Notwithstanding the injunction, the plaintiff proceeded to enter judgment on failure to answer. The defendant thereupon moved, in the Superior Court, to vacate the judgment; but the court held it regular, yet allowed defendant twenty days to come in and answer, upon condition that he consented to a modification of the injunction. During the twenty days, and before serving any answer, defendant moved in the Supreme Court to punish plaintiff for contempt, in violating the injunction; whereupon plaintiff moved in the Superior Court to vacate the order opening the judgment.</p> <p>Held, 1. That the Superior Court would not require defendant to waive his motion in the Supreme Court, as the condition on which he would be allowed to come in and answer. The question whether any contempt of the Supreme Court had been committed by plaintiff must be left to be adjudicated in that court.</p> <p>2. That the order of the Superio'r Court, holding the judgment regular yet allowing the defendant to come in upon terms, did not impair or affect the right of the defendant to pursue the proceedings instituted by him in the Supreme Court, on the alleged contempt. When a court of equity has restrained a party from proceeding at law, and he, notwithstanding, proceeds, it is discretionary with the court of law to sustain or vacate his proceedings therein ; but the exercise of this discretion does not preclude the court of equity from inquiry into the contempt.</p> <p>3. That the former order of the Superior Court should he so modified as to require the defendant to elect instanter instead of within twenty days, whether the judgment should he continued in force, or opened on the terms specified.</p>

Motion to discharge defendant from arrest. This action was brought by Jesse Crandall against James Bryan.

In this action a judgment was recovered by plaintiff, founded on a summons ordered to be served by publication, and was set aside by the special term. The proceedings before the special term were reported (4 Ante, 348). The cause now came before the general term* on appeal by the plaintiff from the order below.

A vacancy having occurred in the office of street commissioner of the city of Hew York, one Daniel D. Conover was appointed to fill the same by the governor of the State; and shortly afterwards one Charles Devlin was appointed to the same office by the mayor of the city, with the consent of the Board of Aldermen.

This action was brought by Charles C. Duncan, Theodore and William D. Crooker, Theodore Ripley, and twelve others, to recover upon a marine policy, issued by the defendants on the ship Adriana, of Bath, for $3,000 for one year from April 1, 1856.

Daniel D. Conover having been appointed by the governor to fill a vacancy in the office of street commissioner, in the city of New York, made application to Mr. Justice Peabody for an order for the delivery of the books and papers appertaining to the office, by Charles Devlin, who claimed to hold the office by appointment of the Mayor, with the consent of the Board of Aldermen. The proceedings upon that application (which was granted), are reported Ante, 73.

Demurrer to complaint. This action was brought by Frederick R. Fowler, William C. Fowler, and Mahlon B. Crampton, against Thomas Rigney and Henry J. Creighton, who composed the firm of Thomas Rigney & Co. The complaint-alleged that the defendants, through a broker, one McManus, bought fifty tons of oil cake by the following agreement, which was signed by the broker, and also by the defendants:— “New York, September 15, ’64. “ I have this day purchased, of Messrs.

This action was brought by John M. Bruce, William A. Odell, and David M. Farnum, against James S. Davenport, Samuel W. Davenport, and Thomas Davenport. The plaintiffs sought to recover against the defendants as indorsers of a'promissory note for $2,350.62, made by a firm doing business under the name of Beale, Mellick & Dewitt.

This action was brought by Harriet E. Christy, administratrix of thg estate of Edwin P. Christy, deceased, against James S. Libby, individually and as collector of the estate of said Edwin, to compel the defendant to account to the .plaintiff for the assets he had received as such collector, and that he be ordered to deliver up and pay over the property and moneys of the estate, and the value of property lost through his mismanagement.

In 1856, Charlotte Quisse owned a house and some furniture, occupied and used by her, in Westchester county, upon which she desired insurance for four thousand dollars. She employed her husband, A. H. Quisse, to obtain such insurance, and gave him fifty dollars to pay the premium.

This was an action to recover the possession of one four-wheeled wagon.

On July 9, 1857, the relator, William R. Kevins, instituted proceedings before Anson Willis (a justice of one of the district courts of the city of Kew York), pursuant to the provisions of article 2, title 10, chapter 8, part 3 of the Revised Statutes, entitled : “ Of summary proceedings to recover the possession of land in certain cases,” against Adam Havemeyer and others, to recov* er the possession of certain premises in the city of Kew York.

This action was brought by Joseph Burnett and William Otis against Edward and Henry A. L. Phalon.

The plaintiff in this action, a tax-payer, &c., in the city of Hew York, sought to restrain by injunction the corporate officers of the city from advancing funds from the city treasury for the payment of the metropolitan police force. The grounds of his action are stated in the opinion, as well as in the complaint, which, as the action was of peculiar character, we give in full below.*

<p>Injunction. —Trademark.</p> <p>A manufacturer cannot acquire a special property in an ordinary term or expression, as his trademark, the use of which as an entirety is essential to the correct and truthful designation of the particular article or compound.</p> <p>Thus a dealer in salt fish cannot maintain an exclusive claim to the use of the term “ dessicated codfish” as a trademark. It is only by the prefix of some other word, not previously applied in that connection, and not essential to the truthful designation of the article produced, that he can be protected in its exclusive use.</p>

<p>Costs.—Act of 1857.—Demurrer.</p> <p>Costs are taxable under the statutes in force at the time of the taxation.</p> <p>Where, on a decision overruling a demurrer to an answer, leave is given to the plaintiff to withdraw his demurrer on payment of costs, the defendant is not entitled to claim costs before notice of trial, but may demand costs for subsequent proceedings before trial, together with a trial fee.</p>

Question of costs submitted on stipulation. This action was brought by Joseph Brace against Alexander Beatty, to recover one hundred and seventy dollars, and interest from April 14, 1856. The action was commenced June 26, 1857.

<p>Appeal from an order of the special term denying a motion to retax costs.</p> <p>This action was brought by Jonas F. Atkins against Alonzo Lefever and Sarah C. Lefever. The material facts appear in the opinion.</p>

Motion to set aside a summons and complaint. This action was brought by Nathan Finch and others against Daniel Carpenter. The action was commenced April 10,1857, and was brought upon a judgment of the Supreme Court, between the same parties, perfected April 10,1837. No leave to bring this action was obtained; and on an affidavit of that fact defendant now moved to set aside the summons and complaint.

This action was brought by Christian Brand against Hiram Focht and Robert Glunson, to recover possession of a boat-load of coal. The complaint averred that the plaintiff was the owner of 172 tons of coal, laden on board the barge Ocean Queen ; that the defendants became possessed of the same, and detained it from the plaintiff, wherefore plaintiff demanded that the defendants should deliver the same to him or pay him the value thereof.

This action was brought by Samuel W. Lowerre, President of the Farmers’ & Citizens’ Bank of Long Island, against William Yail, sued as endorser of a promissory note. The note in suit was one of three discounted by the Bank, and a separate suit on each note was brought against the defendant; two of the suits by Lowerre as President, and the third by one Sanger, who was an endorser subsequent to Yail. The defence set up in each case was, that the endorsement was a forgery.

Three actions were brought by the plaintiff, each against the defendant, as endorser of a promissory note. The defence in each action was, that the endorsement was a forgery. On the trial of the action first brought to trial the plaintiff recovered a verdict.

<p>Application for a mandamus.</p> <p>The facts appear sufficiently in the opinion of the court.</p>

Exceptions. The action was brought before Judge Veep lank and a jury. On the trial the plaintiff was examined as a witness on his own behalf, and gave material evidence in support of his right of action. After the plaintiff had given his testimony, one Parker was sworn as a witness on the part of the plaintiff, and gave material evidence.

This action was brought hy Caroline Murray against Margaret Gale, administratrix of William Harrison, and many other defendants, for the foreclosure of a mortgage given to secure a bond made by Harrison during his lifetime to one Frederick Bronson, an executor.

<p>Motion to quash a writ of alternative mandamus.</p> <p>The relator, on an affidavit that he was formerly a policeman, and had been unlawfully removed from office, by the Board of Police for the Metropolitan Police District (created by 2 Laws of 1857, 200, ch. 569), obtained an alternative mandamus requiring them to restore him, or show cause to the contrary.</p> <p>The writ was addressed “ to the Commissioners of Police for the Metropolitan Police District of the State of New York.”</p> <p>On the return of the writ the defendants moved to quash it, for the reason that it was addressed to the Commissioners instead of to the Board of Police; whereas the act sought to be enforced could be done by the Board only.</p>

Order to show cause why the defendant should not be punished for contempt. This was an action for an injunction. A reference was ordered to take proof of the facts constituting the alleged contempt, and the motion now came on for argument, upon the referee’s report. The facts of the case are stated in the opinion of the court.

This action was Brought By John McClelland, against Greorge Remsen. The action was for trespass in seizing goods of the plaintiff. The defendant claimed to justify under a judgment and execution in favor of William F. Howe, against William McClelland and Elizabeth Hasluck, alleging that the property seized belonged to one or both of the defendants in the execution.

Orders to show cause why an injunction should not issue. This action was brought by the mayor, aldermen, and commonalty of the city of blew York against Daniel D. Conover, Charles Devlin, and James C. Willet, sheriff of the city and county of blew York. The complaint was as follows; being verified by the corporation counsel:— Title of the Cause.

This action was to recover damages for an injury alleged to have been occasioned by the negligent act of the defendant’s servant. The defendant was an undertaker, and was employed by one Darrow to superintend the funeral of his deceased father. ' Darrow testified that he made an arrangement with the defendant to superintend and have the whole and sole control of the burial of his deceased father.

<p>Motion to vacate an order for the examination of a person indebted to or having property of a judgment debtor.</p> <p>One Robert W. Lowber having recovered judgment for about $200,000 against the mayor, aldermen, and commonalty of the city of Hew York, issued execution thereon, which was levied upon certain property of the city. Before any sale, the defendants procured an order staying any further proceedings of plaintiff upon the execution.</p> <p>The plaintiff thereafter procured an order, under section 294 of the Code, requiring Andrew V. Stout, the city chamberlain, to appear and answer concerning the funds of the city in his hands.</p> <p>A motion was now made on behalf of the chamberlain to dismiss the order.</p>

This action was brought to foreclose a mortgage given by the defendant to one Oakley Bunn, the plaintiff’s testator, to secure the payment of $2000, with annual interest, during the natural life of one Lavinia Yaughan the wife of the defendant, for her separate maintenance. The cause came on for trial in October, 1864, before a referee, and judgment was rendered for the plaintiff.

Motion to dissolve a temporary injunction. This action was brought by Mary Ann Blatchford against The Hew York and Hew Haven Railroad Company, and others, its treasurer and directors.

The defendant owned two houses contiguous to each other, on the same street, and numbered 203 and 205.

Motion to dissolve a temporary injunction. This action was brought by George Carpenter and others, stockholders in the defendants’ corporation, in behalf of themselves and all others who should come in, &c., to procure an injunction restraining the payment of dividends declared in February, 1857. A preliminary injunction was granted, which defendants now, upon the coming in of the answer, moved to dissolve. Other facts are stated in the opinion.

<p>Motion to vacate a stipulation.</p> <p>The action was brought by Charles Quinn, administrator, &c., against James T. Lloyd.</p>

Habeas Corpus, issued on behalf of Charles Devlin, held in custody by the sheriff of the city and county of Hew York. Charles Devlin having been taken into custody by the sheriff of the city and county of Hew York upon a warrant of arrest issued by Mr. Justice Peabody, of the Supreme Court, a writ of habeas corpus was issued in his behalf on the petition of Richard' Busteed.

This action was brought by Charles- H. Vandusen, as receiver of Philo Haskins, against Daniel Worrell, claiming to recover from the defendant the proceeds of the sale of certain lands, or of the value thereof, with certain deductions, on the ground that the lands were conveyed to the defendant by way of mortgage for the security of a certain debt. The defendant claimed to be the absolute owner, and denied all liability.

This action was brought by the Manhattan Oil Company (plaintiffs and appellants), against the Camden and Amboy Railroad and Transportation Company (appell ants and respondents). The cause was tried at the circuit, before Mr. Justice Clerke, in January, 1SG7. The material facts were as follows : The defendants were a corporation created hy the laws of the State of New Jersey, and engaged in transporting freight from Philadelphia to New York as carriers for hire.

<p>Appeal from a judgment.</p> <p>The facts appear in the opinions.</p>

<p>Application for a mandamus.</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

Motion to require defendant to receive an amended complaint. The plaintiff in this action, before the time to answer expired, served an amended complaint. To that the defendant demurred. The plaintiff, within twenty days thereafter, again amended his complaint, and the defendant returned the copy served, on the ground that the plaintiff having amended once, could not amend a second time, without leave of the court.

<p>Motion to Vacate Judgment.—Municipal Cobpoeations.— Righto of Tax-payees, &c.—Coepobate Officees.</p> <p>A motion in the first judicial district, to open a judgment and let defendants in to defend, may be made to a justice out of court.</p> <p>Whether a person not a party to a confessed judgment, but complaining of its injurious operation on his interests, shall be heard summarily on informal affidavits, or be put to the more tedious remedy of a bill in equity, depends upon the circumstances of the case as ascertained after the affidavits on both sides have been read.</p> <p>The comptroller of the city of New York, being also a tax-payer and corporator, may move to have a judgment recovered against the city, through collusion with the city officials, set aside, and to be allowed to come in and defend the action.</p> <p>It seems,—that any one who is a tax-payer and corporator may be heard on such a motion;—or that the comptroller may be heard in virtue of his official capacity only. *</p> <p>It is the citizens of a city, and not the Common Council, who constitute the “ corporation” of the city.*</p> <p>The aldermen and other charter officers are only officers of the corporation.</p> <p>The “ counsel to the corporation” is not the counsel to the two boards of the Common Council merely, so as to be absolutely subject to their orders, in respect to suits in which the city may be a party, but he is an agent or trustee for the whole body of citizens, and is ultimately responsible for his conduct, to them.</p> <p>In so far as the counsel to a municipal corporation acts as an attorney or counsellor of the court, he is subject to all the rules and regulations of the court, and is responsible to the court, in like manner as any other attorney or counsellor in like case. *</p> <p>On what facts a judgment recovered against a municipal corporation may be set aside, as having been obtained through fraudulent collusion with the city authorities.</p>

This was an action of trespass, and was brought by Jerome Phillips against Isaac Terry, to recover damages for injuries done to the crops and herbage growing on the plaintiff’s lands, by the overflowing of the waters of a creek caused by obstructions placed therein by the defendant. The injuries complained had extended over several years,—from the spring of 1852, to the first of August, 1858, when the action was commenced.

Demurrer to complaint. This action was brought by John T. Johnston and A. Boynton, who averred that the defendants procured the late firm of Dunkle, Johnston & Co. to make a sale of goods to them, by false and fraudulent representations, for which the plaintiffs sought to recover damages. Upon the dissolution of the firm of Dunkle, Johnston & Co. the assets and good will thereof were transferred by assignment to the plaintiffs, who thereupon brought this action.

The plaintiff in this action, Charles Hawkins, recovered judgment against the defendants on July 27, 1857, in the Third District Court, before Justice Meech, for $73.75.

The defendants in this action, which was for the foreclosure of a mortgage, now appealed from the decision of the special term that plaintiff was entitled to judgment. The facts in the case are stated in our report of the decision appealed from, 4 Ante, 280.

Motion to open a sale on foreclosure and for a resale. The motion was twofold : one made by the defendant Elliott, who was joined as guarantor of the mortgage, and against whom the plaintiff was proceeding to enforce the payment of a deficiency upon the sale ; the other, a motion on behalf of the plaintiff on the ground of surprise at the sale.

<p>Appeal from a judgment. ■</p> <p>This action was brought by Jesse M. Emerson, successor of Robert Grant, deceased, assignee of William Montgomery (plaintiff, and respondent), against William Bleakley, Jr., Sheriff, &c. (defendant and appellant).</p> <p>On or about Dec. 17, 1859, one Alfred Booth obtained a judgment in the supreme court, in Westchester county, against William Montgomery and William Garabrant for $2,268.38 on two promissory notes made by them as “Montgomery & Co.”</p> <p>On the 20th of the same month, 1859, Booth caused execution thereon against the property of Montgomery and Garabrant, to be issued to the defendant in this suit, Bleakley, then sheriff of Westchester county.</p> <p>On Oct. 20, 1857, a stock company had been organized by Wiliam Montgomery and four others, by the title of the “New York Steam Saw-mill and Machine Company.”</p> <p>On the next day, one day after the date of the certificate of incorporation of the company, William Montgomery and one Lnnd (who had become a partner of Montgomery in the place' of Garabrant), for the consideration of §100,000, made a bill of sale of “ all the materials, good-will, and appurtenances of whatever kind or nature appertaining and belonging to the manufacturing and machine business heretofore conducted under the name of William Montgomery & Co.,” together with the full right to the immediate occupancy of the premises in which said property was contained, &c., to the said New York Steam Saw-mill and Machine Company.</p> <p>On the same day Montgomery and Lund executed another bill of sale to said Steam Saw-mill and Machine Company, for consideration of $15,000, “of all the steam saw-mills, steam-engines, boilers, machinery, and stock of all kinds manufacturing, or in process of manufacturing, appertaining to and belonging to the engine and machine manufacturing department of the business heretofore conducted under the name of Messrs. Montgomery & Co., together with all the belongings thereto,” &c.</p> <p>Montgomery became the president of this machine company on its organization, and always continued such president, and had the management and direction of its business.</p> <p>Montgomery & Go. had a lease of the factory premises for five years from May 1, 1855, which passed to the machine company under the bill of sale first above mentioned.</p> <p>On the 33rd day of December, 1858, an agreement was entered into between Montgomery and certain others of the stockholders of the said machine company, by which said Montgomery was to become possessed of their stock on certain conditions, which it is claimed were never performed by Montgomery.</p> <p>Montgomery, the 39th day of November, 1859, executed a general assignment for the benefit of his individual creditors, to Robert Grant, “ of all the estate and property, real and personal, of him, the said William Montgomery, either individually, or as a member of the late firm of Montgomery & Co., or a corporator or stockholder of the New York Steam Saw-mill and Machine Company.”</p> <p>Under this assignment Grant claimed title to the property in question. And as the defendant, as sheriff, had in the first instance levied upon said property, under the said execution of Booth, against Montgomery and Garabrant, this action of replevin was brought by Grant.</p> <p>On a former trial of the cause the plaintiff recovered judgment for the full amount of his claim, after the entry of which he died. Subsequently Montgomery, the assignor, applied to the court by petition for the appointment of a successor in the trust, which the court granted by the appointment of Emerson, the present plaintiff. The court also granted an order substituting Emerson in the place of Grant as plaintiff in this action. Both these orders were made upon the written consent of defendant.*</p> <p>Emerson "being thus substituted as the successor in trust and as the plaintiff in the action, the defendant appealed from the judgment which Grant had recovered, the result of which appeal was that a new trial was ordered.</p> <p>On the trial, the jury found that the stock and materials belonged to Robert Grant, -valuing the same at $13,333.81; and that the tools and fixtures belonged'to the Steam Saw-mill and Machine Company, valuing the same at $13,158.</p> <p>Upon the coming in of the verdict, the court directed the complaint of the plaintiff to be amended so as to conform to the evidence, by designating the portion of the property found for the plaintiff by the jury, and described by them as “ stock and materials,” and by designating also the portion found for the defendant, which the jury had described as “ tools and fixtures.” The amendment was made by inserting at the end of the list of articles in the complaint, an enumeration of those which were known as “ tools and fixtures,” and a statement that the residue of the property was known as “stock and materials.” This amendment was made against the objection of the defendant’s counsel.</p> <p>Judgment was entered in conformity with the verdict, and was affirmed by the supreme court at general term in the second district.</p>

<p>Action fob specific Pebsonal Peopebty.—Death of Defendant.—Abatement.</p> <p>An action for the recovery of possession of specific personal property against a sole defendant, wholly abates if the defendant dies before verdict or judgment; and the court has no power in such case to order the action to be continued against the personal representatives of defendant.</p>

This was an action of ejectment brought by Joseph Larreau against Clemence Davignon and. others, and was tried before Justice Clinton and a jury. Both parties claim under one Andrew N. Larreau. Andrew 1ST. Larreau was an alien by birth. He resided in the city of Buffalo for many years prior to 1845, and continued to up to the time of his death, which occurred in May, 1865. The ' lands in question were conveyed to him in 1845.

This was an application by Samuel P. Dinsmore and John M. Wood for a mandamus, addressed to the Croton Aqueduct Board of the city of Hew York, requiring them to receive and consider a bid made by the relators for the contract for the work of constructing a new Croton Eeservoir in Central Park. The motion was denied at special term. See Ante, 316.

This action was brought by Perry Gr. Tanner, plaintiff and respondent, against Anson C. Parshall, defendant ■ and appellant, to recover the price of a horse alleged to have been sold and delivered to the defendant in Sept., 1856. The cause was tried the second time at the Otsego circuit, in June, 1860.

Order to show cause why an order should not be made declaring the Mechanics’ Bank of Williamsburgh insolvent, and appointing a receiver. The facts involved in the case appear sufficiently in the opinion of the court.

<p>Appeal from a judgment.</p> <p>This action was brought by George" Farnham and Henry Womburgh, executors, against William M. Mallory, on a guaranty by Mallory of a bond given by the defendant, together with one Hiram W. Bostwick, to the plaintiffs, conditioned for the payment and discharge of a mortgage made by one Robert Miller, which was a lien on lands conveyed to the decedent by the defendant Mallory. The facts are more fully stated in the opinion of the court.</p> <p>The following is a copy of the complaint:</p> <p>“ The complaint of the plaintiffs respectfully shows, That before the making of the bond or written obligation hereinafter set forth, to wit, on or about the 26th of Jan., 1847, Lauren Mallory, one of the obligees in said bond named, sold and conveyed to William Womburgh, then of the town of Addison, by warrantee deed dated on that day, all those certain pieces or parcels of land described as follows : All that certain lot, piece, or parcel of land and premises situate and lying in the town of Big Flatts, being part of a tract of land conveyed by Henry Wisner, deceased, to John D. Coe and Benjamin Coe, beginning at the north-east corner of the lot hereby intended to be conveyed, being the north-east corner of a lot formerly owned by Henry Farr, running from thence south eighty-two degrees, east twenty-three chains and eighty-six links, to a stake to the lands of the late John Winton ; thence along the same south fourteen degrees and fifteen minutes, west one hundred and two chains into the Tioga River ; thence south seventy degrees and forty-five minutes, west eighteen chains and seventy-five links; thence north ten degrees, east one hundred and nine chains and forty links to the place of beginning ; containing two hundred and eleven acres, excepting and reserving one acre heretofore conveyed to the First Presbyterian Society in the town of Big Flatts, and a lot now occupied by Ariel Higbee, forty-two feet in front and running back to the brook, said lot fronting on the road leading to Painted Post, and a lot on the east side of the road leading to the Canal, sixty feet front, and running back one hundred and sixty feet, formerly occupied by Titus Todd, and a lot on the same side of the road last aforesaid sixty feet front, running back one hundred and sixty feet, now occupied by.....and formerly occupied by Richard Jones, and a lot seventy feet front and running back one hundred and sixty feet, formerly occupied by Mrs. Hannah Miller, on the north side of the road leading to the Horseheads, and all the fruit trees, excepting those in the orchard. Also, excepting and reserving the lands heretofore conveyed to the New York and Erie R. R. Co., as described in a deed dated Dec. 20,1840, recorded in the clerk’s office in the county of Chemung, in book numbered six, page two hundred and sixty, on the 16th of January, 1841. The covenants contained in said deed to be performed and fulfilled by the said party of the second part. Also excepting and reserving a lot heretofore conveyed to Alfred Griffin, John Minier, and George A. Gardiner, trustees of school district Ho. 1, in the town of Big Platts, county of Chemung, and State aforesaid, containing eighteen hundred and forty-eight feet of land, as described in the deed dated the 16th day of March, 1838.</p> <p>‘ ‘ Also one lot of land hereby intended to be conveyed, beginning on the line of the first described lot, at Joel Rowling’s south-east corner on said river ; thence along said Rowling’s south line westwardly to the east line of land of George Gardiner to his south-east corner, continuing the same course to the line of the original patent; thence easterly along the said patent line to the southeast corner of the first described lot, from thence northerly and westerly along the line of the said lot to the place of beginning. The exceptions and reservations of the original patent excepted, containing, by estimation, sixteen acres. The aforesaid survey, as the needle pointed in the year 1805, excepting and reserving all the right and privilege granted to Archibald Rousseau by an instrument of writing dated April 15, 1845, and recorded in the clerk’s office in the county of Chemung, in book of deeds, number eleven, page 287.</p> <p>‘‘ That before the time of the sale and conveyance aforesaid, to wit, on or about the sixth day of Sept., 1831, one Robert Miller (who was at that time the owner of the land hereinbefore described), executed and delivered to Isaac Bronson a mortgage upon said land, to secure the payment to said Bronson of the sum of three thousand and five hundred dollars, which mortgage was at the time of the sale and conveyance aforesaid, a subsisting and valid lien and incumbrance upon the land aforesaid. That the said Lauren Mallory, at the time of the sale and conveyance aforesaid, promised and agreed with the said William Womburgh, that he would, within six months thereafter, pay, satisfy, and cause to be discharged of record, the said mortgage aforesaid. That in consideration of the sale and conveyance aforesaid, and the promise or agreement aforesaid made by the said Lauren Mallory to pay, satisfy, and discharge of record as aforesaid, the mortgage aforesaid, the said William Womburg paid to said Lauren Mallory a large sum ■ of money, to wit, about the sum of eleven thousand dollars. That the said William Womburg died on or about the 21st of May, 1853, leaving a will wherein he nominated and appointed the above named George Farnham and Henry Womburgh executors of his last will and testament, who did, before the making of the said bond or writing obligatory by Lauren Mallory and Hiram W. Bostwick, hereinafter set forth, duly qualify and enter upon the discharge of the duties of executors of the said last will and testament of the said William Womburgh, deceased. That the said Lauren Mallory neglected to pay, satisfy, or discharge the mortgage aforesaid, but the same still remained a valid and subsisting lien and incumbrance upon the land aforesaid at the time of the making of the said bond or writing obligatory hereinafter set forth.</p> <p>‘ ‘ And the complaint further shows that the said Lauren Mallory and Hiram W. Bostwick, for the purpose of securing to the plaintiffs in this action, executors as aforesaid, the payment, satisfaction and discharge of the mortgage aforesaid, which still remained a lien and incumbrance as aforesaid, and for a valuable consideration made, executed and delivered to the plaintiffs aforesaid on the 26th of June, 1854, their bond or writing obligatory in words and figures following, to wit: [The bond is found in the opinion of the court.]</p> <p>‘ ‘ And the complaint further shows that for the purpose of securing to the plaintiff’s executors as aforesaid, the punctual payment of all moneys, and a full performance by the said Lauren Mallory and Hiram W. Bostwick, of all the conditions and covenants mentioned in the bond or writing obligatory made by the said Lauren Mallory and Hiram W. Bostwick, and hereinbefore set forth, and for a valuable consideration the said defendant William M. Mallory did, on the 26th day of June, 1854, make, execute, and deliver to the plaintiff’s executors, as aforesaid, his written guarantee, which guarantee was annexed to said bond or writing obligatory as aforesaid, and was in words, &c. [This instrument is also set forth in the opinion of the court.]</p> <p>“And the complaint further shows that the said Lauren Mallory and Hiram W. Bostwick have not, nor has either of them paid or caused to be paid or satisfied of record the said mortgage, or any part thereof, nor has the said defendant, William M. Mallory, paid or caused to be paid or satisfied of record the mortgage aforesaid, although often requested so to do, but the same still remains a valid and subsisting lien and incumbrance upon the land aforesaid.</p> <p>“Wherefore the plaintiff’s executors, as aforesaid, demand judgment of this court that the defendant pay and satisfy, or cause to be paid and satisfied of record, the mortgage aforesaid, or that he be adjudged to pay to the plaintiffs the sum of seven thousand dollars, or such sum as may be sufficient to pay and satisfy of record the mortgage aforesaid, or such other and further relief and judgment as the court shall see fit to grant with costs.”</p>

This suit was brought against Michael Bennett to recover the statute penalty of $50, for a violation of section 21 of the Metropolitan Police Law (2 Laws of 1857, 200, ch. 569). The complaint was drawn in the short form authorized by the provisions of the Revised Statutes, and the summons was for a money demand. The defendant moved to set aside the complaint for irregularity, in that it varied from the summons.

Motion to vacate an ex parte order permitting defendant to pay money into court. This was an action for the foreclosure of a mortgage to secure the payment of $2750 in three years, but containing an interest clause to the effect that in case default was made in paying the interest on any day it was made payable, and it remained unpaid and in arrear for the space of ten days, then the whole principal, at the option of the plaintiff, should become due and payable.

<p>Appealable Order.—Refusal to grant Injunction. —Remedy against Illegal Tax.</p> <p>A refusal to grant a temporary injunction against the collection of a tax, where but a small portion of the amount involved in the controversy can be affected at the time by such temporary injunction, is not an order which in effect determines the action, and prevents a judgment from which an appeal might be taken; and therefore an appeal does not lie from it to the court of appeals.</p> <p>If a motion for a temporary injunction is denied, not on the ground that the plaintiffs could ultimately have no relief, but because a temporary interference was not deemed advisable by the court to which the application was made, the court of appeals will not review the discretion of that court upon the question.</p> <p>In order to sustain an appeal, the papers should show that the motion was denied upon the ground that the plaintiffs could ultimately have no relief.</p> <p>An injunction cannot issue to restrain the collection of a tax, although illegally imposed.</p> <p>Of the power of boards of eduction to raise moneys for educational purposes by taxation.</p>

<p>Mortgage Foreclosure.—Defence of Usury.</p> <p>A party setting up the defence of usury must aver clearly every particular necessary to establish the usury charged, and must distinctly negative every supposable fact, which, if true, would render the transaction innocent or lawful.</p> <p>An answer in an action for foreclosure of a mortgage, which alleges that the mortgage, although dated on a specified, was not executed until a specified day thereafter,—that it was made to secure a loan which was not made until after the day of execution,—that it was thus antedated for the purpose of reserving excessive interest, and that the defendant did thereby reserve excessive interest ;—but which does not aver that such excess of interest was ever exacted or paid, and does not deny that the loan was engaged and the money set apart by the lender for the borrower from the day of the date of the mortgage,—is insufficient as a plea of usury.</p>

<p>Motion by plaintiff for an order requiring his attorney to sign a consent for the substitution of a new attorney in his stead, and to deliver up the papers in the action.</p> <p>The facts on which the motion was based appear in the opinion.</p>

<p>Petition to vacate an order appointing a receiver.</p> <p>The petition in this case was filed by Albert H. Nicolay. It showed that the petitioner was holder of a certified • check on the Bowery Bank for $1,750, which was presented for payment on October 10, 1857, and payment refused. It also showed the appointment, by former proceedings in the Supreme Court, of a receiver of the bank, in proceedings instituted by one Cummings, another creditor. Other facts are stated in- the opinion.</p> <p>The-petition sought to have the appointment of the receiver vacated on the grounds—</p> <p>1. That the appointment was obtained by collusion.</p> <p>2. That the bank was not insolvent at the time of the appointment.</p> <p>3. That the same was illegal, inasmuch as ten days did not intervene between the suspension of payment and the appointment of the receiver, as required by statute. .</p> <p>4. That the appointment practically prevented the petitioner from suing the bank on the check, as after judgment was rendered against the bank it would be impossible to levy on the</p> <p>bank, as it was no longer in existence, but in the hands of the receiver.</p>

<p>Examination of defendant before trial, on behalf of plaintiff.</p>

<p>Application for a writ of error to review a judgment of the Court of General Sessions, together with stay of proceedings upon the judgment pending the writ.</p> <p>• The facts are stated in the opinion of the court.</p>

This action was brought to recover for the transportation of certain property, appertaining to the construction of the defendants’ road, in the year 1852, and it was alleged that these services were performed for and at the request of the defendants. Issue having been joined, the case came on for trial before the Steuben circuit in Feb., 1860, and judgment was rendered for the plaintiff.

<p>Carrier.—Termination oe Liability.—Absence oe Consignee.</p> <p>Where the consignee is absent from the terminus of the carrier’s route, ancl has no agent to whom delivery can be made or notice given, the carrier may terminate his liability as carrier, by depositing the merchandise in a warehouse; although it is otherwise of an intermediate carrier, whose duty it is to deliver to the next carrier on a road beyond.</p>

Hotion to require the sheriff of the city and county of New York to deliver up to the receiver appointed in this action certain property held by him under levy of an execution. The facts appear in the opinion of the court.

<p>Appeal from a judgment.</p> <p>This action was "brought "by Georgs M. Mittnacht against John Kelly, sheriff of the city and county of New York. The facts are stated sufficiently in the opinion of the court.</p>

<p>Motion to "confirm the report of a referee.</p> <p>The facts appear in the opinion of the court.</p>

<p>Res Ad judicata.—Covenant to Defend.—Foreclosure and Sale.—Estoppel.—Sale for Taxes.</p> <p>A judgment is not conclusive, as res adjudicata, upon one who is neither a party nor privy.</p> <p>When one, by the nature of his covenant, is bound, upon the request of his covenantee, to defend an action against the covenantee, a notice to defend makes the judgment subsequently recovered against the covenantee, when interposed in an action by him upon the covenant, conclusive evidence, against the covenantor, of its breach; but it does not make the covenantor a party or privy to the judgment against the covenantee.</p> <p>A judgment and sale, in an action to foreclose a mortgage, to which the owner of the lands is not a party, is a nullity. The owner of lands, which have been held adversely to him, under such a judgment and sale, for more than ten years, is not within the ten years limitation of section 52 of title 2 of chapter 4 of part 3 of the Revised Statutes.</p> <p>A mortgagor, without covenant or representation, is not estopped from showing what estate he had in the mortgaged lands at the time of the delivery of the mortgage.</p> <p>How lands are to be sold for taxes, and upon whom notice to redeem must be served.</p>

<p>Motion to compel a purchaser to complete his purchase ; and cross-motion on behalf of the purchaser to be discharged.</p> <p>The facts on which these motions are made appear in the opinion.</p>

This action was brought by John and George V. Hecker against George Mitchell. The complaint was on a promissory note made by defendant to the order of John H. Hoffman, and alleged in the complaint to have been by Hoffman endorsed to the plaintiffs.

<p>“Lobby Services.”'—Recovery.—Dismissal oe Complaint.— Amendment.</p> <p>Where the complaint declares upon a contract which is entire, and void as to a part of the consideration, it must be dismissed as to the whole claim.</p> <p>But where, a complaint of this description having been dismissed, the plaintiff procures an order allowing him to amend his complaint by striking out all averments basing his claim upon the illegal consideration, it is proper to grant a motion upon the complaint as amended to set aside the order of dismissal and 'to grant a new triaL</p>

Action tried by the court. This action was brought by George S. Thompson against Abraham Van Vechten, James H. Elmore, Prosper P. Shaw, Marius Schoonmaker and one Griffiths, John Orser, sheriff, and one Berbeck. The object of the suit was to determine the priority of the claims of the respective parties to the proceeds of the steamboat Alida. The facts are stated in the opinion.

<p>Poweb of Pbesident of Company.—Payment of Subsobiptions.—Acts of Agent.</p> <p>The president of a company by virtue of his office has power to collect subscriptions to the capital stock.</p> <p>In the absence of any statutory restrictions, a corporation has power to receive payment otherwise than in money for subscription to the capital stock.</p> <p>When payment of a subscription to capital stock has been made to one who is authorized to collect such subscriptions, the act of such agent, although beyond his authority, in allowing payment to be made otherwise than in money, cannot be rejected by the company after the contract is executed, so as to work to the injury of an innocent subscriber.</p>

<p>Action foe Legacy.—Infant Plaintiff.</p> <p>The complaint of an infant plaintiff suing by guardian ad litem, claimed to recover a legacy under a will proved abroad; but did not show letters of administration or of guardianship taken out in this State, nor was the foreign executor made a party.</p> <p>Held, on demurrer, I. That an objection for insufficiency in the statement of the appointment of plaintiff’s guardian ad litem, could only be raised by motion to make the complaint more definite and certain.</p> <p>2. That where a legacy is given of specific securities the legatee may sue in his own name to recover them, on obtaining the assent of the executor; and such assent, where no debts remain unpaid, may be compelled.</p> <p>3. That a statement in the complaint that the foreign executor had closed the duties of his trust and been discharged, sufficiently showed his assent that the action should be brought by the legatee.</p> <p>4. That there was no necessity for the appointment of a domestic administrator, no debts payable out of the property being pretended.</p>

<p>Application for a writ of error, together with a stay of proceedings.</p> <p>The prisoner, Michael Cancemi, was convicted at the Circuit of the crime of murder; and sentence was afterwards pronounced upon the conviction, by the court at general term. The prisoner now applied for a writ of error and stay of proceedings thereupon.</p>

<p>Joinder of Parties.—Defendants.—Community of Interest.</p> <p>Certain securities having been deposited by the owner, with a firm, as agents, to sell them or negotiate loans upon them, the agents disposed of the securities, some of them to one person, and others to another, in violation of their trust. The principal thereupon brought suit, joining the agents and all the transferees of all the securities as defendants in one and the same action; seeking such final relief against each transferee as was appropriate to the transaction by which he held, and also praying an injunction restraining the transfer of the securities by any of the defendants pending the suit.</p> <p>Held, that the different transferees could not be joined in one action. There was no community of interest between the holder of one lot of securities and the holder of another. There should be separate actions brought against each transferee of the securities, joining with him the agents; the latter being properly made defendants in all the actions.</p>

Demurrer to complaint. This action was brought by Edward B. Wesley against James Gordon Bennett, editor and proprietor of the Hew York Herald, for alleged libels published in that paper. ■ The complaint stated two causes of action.

Demurrer to complaint. This action was brought by James Green against the Mayor, &c., of the city of New York to recover salary as a justice of a district court in that city. The plaintiff demurred to the defendants’ answer for insufficiency. The substance of the defence demurred to is stated in the opinion.