Volume 5 — Bosworth's New York Superior Court Reports

This is an appeal by the plaintiffs (John H. and James H. Holdane) from a judgment entered on a verdict in favor of the defendant, (John E. Butterworth,) rendered at a trial had before Mr. Justice Slossokt and a jury, in March, 1858. Charles H. Tupper and Wesley M. Lee were also named as defendants, but neither of them was served with the summons or appeared in the action.

This is an appeal by the defendants, (William H. Raymond and William H. Forbes,) from a judgment against them in favor of the plaintiff, rendered on a trial had before Mr. Justice SlosSON without a jury, on the 13th of May, 1858. The action is against the defendants as makers of a note, which, with its indorsement, reads thus, viz.: “ $750.

This action was tried before William 0. Barrett, Esq., Referee, who reported in favor of the plaintiff the sum of $78.72 with interest from the 25th day of December, 1851, besides his costs, and from the judgment entered upon the report the defendants appealed. The complaint herein alleged three distinct causes of action, stating them separately.

The action was brought on a policy of insurance, dated 14th February, 1850, for $10,000, on “passage money1'1 of the steamship New Orleans, at and from New York to San Francisco, with liberty “ to use” port or ports,, on the passage, and to touch, &c. An ordinary printed policy on freight was used.

This action was tried before Chief Justice Duer and a jury, on the 1st of June, 1857, and now comes before the Court on questions of law arising at the trial, and there ordered to be heard in the first instance at the General Term.

This is an appeal by the plaintiff from a judgment of nonsuit ordered at a trial had before Mr. Justice Woodruff and a jury, in November, 1858, and also from an order denying a motion made for a new trial on the ground of surprise.

The judgment recovered by the plaintiffs in this action having been reversed and a new trial ordered at the February Term, 1859, the action was again brought to trial on the 20th of April, 1859, before Mr. Justice Slossoh and a jury. The pleadings and most of the facts appeared as stated in the former report.

This is an appeal by the defendant from a judgment against him, entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, on the lith of May, 1858. It was commenced on the 11th of April, 1857.

This is an appeal by Joel W. Foot and Charles Cole, (the defendants,) from a judgment in favor of George. Boyd, (the plaintiff,) entered on the 14th of September, 1858, for $1,415.79, and costs, on the report of Willis Hall, Esq., as Referee. The action was brought in August, 1856, to recover a balance alleged to be due to the plaintiff’s assignor, Henry 0.

This is an appeal by the defendant from a judgment entered on the report of M. B. Maclay, Esq., as Referee.

This is an appeal by John Child, Francis McDonald, Peter McLeod, Hodgson Bigland and John Athya, (the defendants, who, exclusive of John Child, compose three several firms, via.: the firm of Francis McDonald & Co., of N. Y.; Bigland, Athya & Co., of Liverpool; and John Athya & Co., of Glasgow;) from a judgment in favor of John B. Durbrow, John C. Winne and William R. Sheldon, (the plaintiffs, who compose the firm of Durbrow, Winne & Sheldon,) entered on a verdict rendered on…

This is an appeal by the defendant from a judgment entered against him on the verdict of a jury. The action was tried before Mr. Justice Woodruff and a jury, in March, 1859. The plaintiff was duly appointed a Receiver of the property and effects of the Island City Bank, on the 25th of September, 1857, (it being then an insolvent moneyed corporation.) The suit is brought on a note alleged to be parcel of the assets of said bank, of which note the following is a copy: “ $400.

<p>1. A Mutual Insurance Company took up a subscription, by which the subscribers agreed to give their notes for premiums in advance of insurance to be effected by them, the subscription not to be binding until the sum of-$300,000 was subscribed. That sum was in form subscribed, the defendants being subscribers, and the defendants voluntarily gave their notes for the amount of their subscription. All parties acted in good faith, and without any fraud, misrepresentation or concealment: Held, that such notes were, in the hands of the Company, valid binding notes, which the Company had a right to negotiate for the purpose of paying claims or otherwise, in the course of its business, notwithstanding it ultimately appeared that some of the subscriptions were not valid binding subscriptions, and notwithstanding, if the notes had not been given, the defendants might have legally refused to give them on the ground that the condition of the subscription had not been in fact satisfied.1</p> <p>1Brookman v. Metcalf, post.</p> <p>2. An agreement by which certain parties agreed to lend to an Insurance Company their notes to amounts specified, and to renew such notes from time to time until a day named, when they should be paid by the Company, the said “ notes to be given to N. & S., as special Trustees, to be used by them as they may think proper for the benefit of the Company," is not in contravention of section 7 of “Regulations to prevent the insolvency of moneyed corporations,” (1 R. S., 591,) which forbids an assignment or transfer of effects, except to the corporation directly and by name, and it is not void on that ground.</p> <p>3. When, under such an agreement, and in pursuance of its stipulations, the Company delivered to the so-called special Trustees, as collateral security to provide for the payment of such notes, valid notes of third persons received for premiums in advance, and the notes so lent were discounted and the money paid over to the Company and used by it for the payment of Its liabilities in due course of business, the transaction is valid, the transfer of the collateral securities is effectual, and the said special Trustees, or their transferee, (under a power to transfer contained in the agreement,) may collect the said premium notes from the makers.1</p> <p>4. A transfer of collateral security made in good faith to secure a present loan to be used in due course of business, is not a transfer with intent to give a preference within the act (§ 9) forbidding transfers by corporations, when insolvent, with intent to give a preference to one creditor ovef others.</p> <p>5. An Insurance Company cannot be said to be insolvent, or to act in contemplation of insolvency, within the act last mentioned, merely because the sums insured greatly exceed its capital; nor when its assets are more than sufficient to meet all losses of which the Company has any notice, information or suspicion; nor under such circumstances can a loan made by the Company, secured by collaterals, for the purpose of meeting the liabilities of the Company as they arise, with the belief that the Company is solvent and will meet all its engagements, and in order to sustain the Company in its business and enable it to do so, and with the application of the money raised to that object, be deemed a transfer with intent to give an unlawful preference.</p> <p>6. Such a transaction is not void for the want of power to borrow notes, merely because the Company, instead of borrowing money with which to meet its engagements, borrowed notes, caused them to be discounted and used the money, under an agreement to pay the notes at maturity.</p> <p>7. Such a transaction is not void under section 8 of the act which declares that no transfer, not authorized by a previous resolution of the Board of Directors, shall be made by such a corporation of any of its effects exceeding in value $1,000, when it appears that a resolution was passed authorizing the officers to give such security as they should think proper for those who</p> <p>1 Scott v. Johnson, post. should lend their notes, and the officers did in good faith, without fraud or collusion, deliver a suitable amount as such security, and it further appears, in reference to the particular notes transferred, that the Board also resolved that the officers proceed in liquidation of the liabilities of the Company therewith.</p>

This action was brought to recover from the defendant, as maker, the amount of a promissory note dated November 24th, 1855, for $351.25, payable eight months after date, to the order of The Atlas Mutual Insurance Company.

This is an appeal by William D. Scott,' the plaintiff, from a judgment in favor of the Ocean Bank in the city of New York, the defendant, rendered on a trial had on the 21st of June, 1858, before Mr. Justice Slosson, without a jury.

This is an appeal by John A. Corbett and Andrew Johnston, who are the defendants, and compose the firm of Corbett & Co., from a judgment in favor of Calvin B. Dibble and Jonathan E. Bunce, who are the plaintiffs, and compose the firm of Dibble & Bunce. The action was commenced in October, 1856, and was tried before Mr. Justice Woodbuff and a jury, o.n the 28th of May, 1858.

<p>1. An Insurance Company which, by the terms of its charter, is authorized,, for the better security of dealers, to receive notes for premiums in advance from those who intend to receive its policies, and to negotiate such notes for the purpose of paying claims or otherwise in the course of its business, has power to transfer such notes as security for the repayment of a loan of money made to the Company, and received and applied to the payment of losses, expenses, &e., in the ordinary conduct of its business.1</p> <p>2. ' When it is proved that it is the uniform practice of such a Company to transfer notes, negotiated in its business, by an indorsement in this form, “For the Company, A. B., President,” such proof is prima fade evidence of authority in the President to indorse notes held by the Company, by way of transfer; and such indorsement is sufficient to confer the title on one who receives a note from the Company in good faith, and advances to them money thereon.</p> <p>3. A person who lent money to such Company, in good faith, on the transfer to him, as collateral security, of subscription notes given for premiums in advance, amounting to over $1,000, and without any notice that there had been no previous resolution of the Board of Directors authorizing the transfer, is entitled to recover thereon against the makers, although no such resolution had been passed.</p> <p>4. Where there is no allegation in the answer under which usury between the Company in such case and the lender can be available as a defense, it is not error to reject evidence of the rate of interest charged on the loan. If proof that the lender charged more than seven per cent per annum is not admissible to establish usury, it is not relevant for any purpose: it has no bearing on the question whether the plaintiff is a bona fide holder in any other aspect.</p> <p>1 Holbrook v. Basset, ante% p, 147.</p> <p>5. Whether, under a statute which forbids a corporation to interpose the defense of usury, a transaction, otherwise void for usurjq is not entirely valid? and whether a third person can, for the purpose of affecting the title of the holder of a promissory note, allege and prove that he took it from a corporation and holds it under a usurious contract? Quaere.</p> <p>6. It seems, that, under the statute last mentioned, if a maker of a note has no defense thereto in the hands of the corporation, he cannot, when sued thereon by an indorsee, allege and prove usury between the corporation and such indorsee. The title of the indorsee, being good as against the corporation, is good as against the maker.</p>

This is an appeal by tbe New York and Liverpool United States-Mail Steamship Company, the defendant, from a judgment against it in favor of Zachary Peck, the plaintiff, for $14,237.17, entered March 4, 1858, on the report of Hon. William Kent, as Referee..

This action was brought to recover the amount alleged to be due to the plaintiffs for premiums upon an open policy for reinsurance, to the amount of $195,000, whereby the plaintiffs reinsured the defendants for a sum not exceeding $10,000 by any one vessel or steamer at any one time, at and from London, Liverpool, Glasgow, Southampton and Havre to New York, Baltimore, &c. The policy to attach on shipments in the ports aforesaid, on and after October 1st, 1852, and prior to…

This case comes before the Court on an appeal by the defendant from a judgment entered in favor of the plaintiff for the sum of $2245, with costs. The action was tried before Mr. Justice Pierrepont without a jury on the 4th of November, 1858, a trial by jury having been waived.

<p>' 1. An unconditional agreement between an insolvent debtor and part of his creditors to accept his notes for a designated portion of the amount he owes to them severally, in satisfaction of the whole, is obligatory upon such creditors.</p> <p>2. The relinquishment of a part of their demands by those signing the agreement, and the surrender of their right to enforce them in full, is a sufficient consideration to uphold it.</p> <p>3. Such an agreement implies, though it does not in terms contain, a promise of each of the creditors signing it to and with every other of such creditors to accept the composition stipulated for, and to abstain from all efforts to collect more.</p> <p>4. Where such an agreement bears date December 15th, 185V, and provides that the notes to be accepted in satisfaction shall be for equal amounts at six, nine and twelve months, from January 1st, 1858, it is not indispensable to the continuing validity of the agreement, that such notes be delivered or tendered on said first day of January. If no demand of them be made, they must be tendered within a reasonable time.</p>

80 damages and costs. The complaint alleged the incorporation of the defendants, the plaintiff’s ownership of four drilling machines, eight… Held: by them upon the building or manufactory in which the property was in use, became the purchasers of the building; that there was then outstanding a mortgage given by the same parties (Sloan & Leggett) upon the chattels now in question; that such last named mortgage was foreclosed by a sale of the chattels at auction on the 80th…

; Appeal by the defendants from a judgment against them for $5,000 damages and costs, on the verdict of a jury, and from an order refusing a new trial. The action was brought to recover the value of a horse, and was once tried in May, 1857, and, on appeal from the judgment for the plaintiff on the verdict for $2,500, then rendered, the judgment was reversed and a new trial was ordered. (See report of the case and points decided, 8 Bosw.

This is an appeal by the plaintiffs from a judgment dismissing their complaint with costs. The action was tried before Mr. Justice Slosson, without a jury, in March, 1856.

<p>1. Where property of a moneyed corporation (viz.: a note made by third persons) is wrongfully taken by one of its officers, and all its claims against Such officer, including its claim for the taking of such note, are subsequently settled, and a release given to such officer ón taking his note for a balance agreed upon; although the persons acting in behalf of the Company in making the settlement and giving the release acted without competent autho-</p> <p>■ rity to bind it, yet if the Company thereafter, with knowledge of such settlement and of its terms, indorses absolutely and appropriates to its own use the note received on such settlement, it thereby ratifies the settlement and vests . in such officer title to the note so wrongfully taken, and he or his vendee can maintain an action on it against the makers.</p> <p>2. When the proof is, that “ the Company used the note ” taken on such settlement, and “ paid it to ” a creditor “in payment of a debt which they owed to ” such creditor, and there is no other evidence in respect to such transfer; the presumption is, that such transfer was made in a manner authorized by law and the charter and by-laws of the Company.</p> <p>3. The owner of a promissory note can maintain an action on it, under the ' Code, in his own name against the makers, although not so indorsed that he can sue as indorsee by the rules of the common law.</p>

<p>1. The drawing of a check on a Bank by one who keeps an account in it, and has, at the time, moneys to the same or a larger amount to his credit on its books, and a delivery of the check to the person named in it as payee, do not, of themselves, operate as an assignment to such payee of the title to any of the moneys thus standing to the credit of the drawer of the check.</p>

This is an appeal by the defendant from a judgment entered on the report of J. C. Bancroft Davis, Esq., as Referee.

This action is brought by John S. Giles, as plaintiff, against Wm. B. Crosby, John C. Beekman, Henry R. Remsen, William Remsen and Frederick Schuchardt, as defendants. It was tried before Chief Justice Bosworth and a jury, on the 9th of March, 1859.

This action was tried before Boswobth, Gh. J., and a jury, on the 21st day of October, 1858, and was brought to argument pursuant to an order then made that the exceptions taken on the trial be heard in the first instance at the General Term.

This is an appeal by Simeon, Charles and Warren Leland, the defendants, from a judgment in favor of Piatt Adams, the plaintiff, rendered on a trial had before Chief Justice Bosworth and a jury, on the 23d of Mav. 1859. The suit is against the defendants as indorsers of a note dated “New York, February 12, 1857,” for $6,000, payable on the 20th of June then next, without grace, to the order of James Moore, indorsed by him to P. 0.

This is an appeal by The Mayor, Aldermen and Commonalty of the City of New York, the defendants, from a judgment in favor of Michael L. Leman, the plaintiff, rendered on the report of Hon. John L. Mason, as Referee. The plaintiff is the owner of a lot on Pearl street, New York city, and the building thereon, fronting on Pearl street, and was at the time the acts hereinafter stated were done.

This action comes before the Court upon questions of law arising at the trial, and there ordered to be first heard at General Term. It was tried before Mr. Justice Hoffman and a jury, on the 24th of November, 1858.

<p>1. A Mutual Insurance Company, for the purpose of increasing its available means, took up a subscription by which its friends agreed to give their notes for premiums in advance of insurances to be effected by them, the subscription not to be binding until §300,000 was subscribed. When the subscription was understood and believed to be made up, no fraud being practised on the defendant, he gave Ms two notes for $500 each for the amount of his subscription, and he effected actual insurance to an amount for which the premiums were over '$900, which was charged to him against his said two notes, and he, in addition thereto, took an open policy upon wMch the premium considerably exceeded the remaining $100, but no other risks were indorsed thereon except those included in the $900: Held, that the two notes for' $500 each were valid binding notes, although it afterwards appeared that the whole $300,000 subscription was not made up; the notes having been voluntarily given and there being no fraud on the part of the 'Company or its Agent.1</p> <p>1 Holbrook v. Wilson,{i Bosw„ 64;) Holbrook v. Basset, {ante, p. 147.)</p> <p>2. A resolution of. the Board of Directors directing the officers to proceed with certain notes, mentioned, to liquidate the indebtedness of the Company, is a sufficient authority to warrant.the officers in settling an indebtedness to the plaintiffs by paying a part, appropriating an indebtedness from the plaintiffs not yet payable, in further payment, and transferring to them a .portion of such notes as security for the balance on their agreeing to givo further time of payment.</p> <p>3. Such a transaction makes the plaintiffs Iona fide holders for value in such sense that the transfer to them is valid, even without a resolution of the Board of Directors, though it exceeds $1,000, if they have no notice of the want of such resolution.1</p> <p>4. In such case the maker of the note cannot use as a defense by way of set-L off or .counterclaim, an indebtedness by the Company to him for losses which did not become payable until after .the transfer of his notes to the plaintiffs.</p> <p>1 Scott v. Johnson, (ante, 213:) Smithy. Ball, (ante, 319;) Boughtony. Dodge, (post,)</p>

This action was brought to recover damages from the defendant for injury to the goods of the plaintiffs from water which flowed from the defendant’s lot into the lower story of the store of the plaintiffs, and for the expense of removing the water.

This is an appeal by James N. Richards, the defendant, from a-judgment, in favor of Joseph Agate the plaintiff, rendered on a trial had before Mr. Justice Pierrepoht, without a jury, June 27th, 1859. Held: that there was not sufficient proof given of the identity of the parties and of the cause of action in the two suits, and gave judgment for the plaintiff for $85.13, (the amount claimed, with interest;) the defendant excepted to the decision and appealed from the judgment.

<p>1. Although a plaintiff establishes by his evidence a prima facie, cause of action, so that when he rests his case a refusal to order a nonsuit is proper, yet if the evidence on the part of the defendant is very greatly preponderating, and especially where that preponderance arises from facts and circumstances not controverted, the Court will set aside a verdict for the plaintiff as against evidence.</p> <p>2. The fact that a vessel, after very slight repairs, does actually perform many voyages, and with repairs greatly less than would justify her salo and an abandonment to an insurer, does actually continue in service for many years, being pronounced seaworthy and capable of performing voyages to any part of the world, greatly outweighs the opinion of her master, and surveyors, making an examination by his request, that repairs are necessary," exceeding half her value; and this is especially true when, after such sale and abandonment, the cause of the leakage, ascribed by such surveyors to injury by perils of the sea, is found to be two auger holes bored in her side which may be stopped at a trifling expense.</p> <p>3 Where freight is insured and the ship is disabled after her service is in part performed, it is the duty of the master to earn freight if he can, by forwarding the cargo by another vessel, and where, in such case, he voluntarily gave up the cargo to its owners, and they sent it on by another vessel, a finding that there was no evidence that he could have earned freight, (in the absence of any proof of the cost of the shipment by such other vessel,) cannot be sustained. The service having been in part performed, it is to be presumed that freight is earned, unless the plaintiff proves that the cost of forwarding exceeded the freight payable by the owner.</p> <p>4. Where the service has been in part performed, and the owner voluntarily accepts the goods, freight pro rata Uineris is earned, and may be demanded.</p> <p>5. Where a charter-party stipulated on the part of the charterers, that the master should be supplied by them with a sum not exceeding one-third of the freight “free of interest and commission, which is to be in part payment of the freight at the exchange of twelve per cent premium, together with the cost of insurance on such advance,” and by further provisions any other advances they thought fit to make on the credit of the freight should, with premium, interest, commission and insurance, be considered in part payment of freight. Advances made under the first stipulation, where the voyage is in part performed, are at the risk of the charterers, voluntarily placed by them at the hazard of the voyage, and are to be deemed freight earned, and not liable to be refunded, though the vessel is afterwards lost.</p>

<p>1. It is essential to the right of plaintiffs in a judgment to maintain an action to set aside a deed of real estate made by the defendant in such judgment, as having been made with intent to defraud creditors, that an execution should have been issued on such judgment to the Sheriff before suit brought.</p> <p>2. Unless the complaint avers the fact of issuing such execution, it will not state facts sufficient to constitute a cause of action.</p> <p>3. Although such an execution be issued after suit brought, that fact cannot be made a part of the plaintiff’s case, either by amendment of his complaint or by supplemental complaint</p>

Action to recover damages alleged to have been sustained by the plaintiff by reason of the carelessness and negligence of the defendants in not keeping in-repair a certain public wharf and pier owned by the defendants, and in their care and control, and which they were bound to keep in a good and safe condition, at the foot of a street on the North or Hudson river. The answer denied all the allegations of the plaintiff.

An appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of B. W. Bonney, Esq., as Referee. The action is on a check, or bill of exchange, in these words, viz.: “New-Yobk, March'16, 1859. -“ L. S. Lawrence & Co., Bankers, pay to'Mr. William Fish, or order, three thousand dollars. $3,000 T\s„. • “Isaac Jacobsohn.” ■- L. S. Lawrence & Co. refused to pay- this check, and it was ■protested, and due notice was given to the defendant.

This is an appeal by the plaintiff from a judgment dismissing his complaint. The action was tried before Mr. Justice Hoffman without a jury, in October, 1855. It is brought to recover for a total loss upon a contract of insurance’ alleged to have been made between the plaintiff and the defendants on the 15th of November, 1853, and which, by its terms, was to continue in force until July, 1854.

This is an appeal by the defendants from a judgment in favor of the plaintiff, Haff, entered upon the verdict of a jury. The trial was had before Boswobth, Ch. J., and a jury, on the 7th of March, 1859. John Lyon and Stewart S. Haff are the plaintiffs upon the record; and Benjamin Blossom and Charles A. Blossom are the defendants. The action was brought to recover the price of certain sheds sold and delivered by the plaintiffs to the defendants.

The action is for the recovery of damages for the alleged breach of the covenants in a deed from the defendant to the plaintiff, purporting to convey certain land in the State of Illinois, (the N. W. qr. sec. No. 13, town. 8, south, range 3, west of the fourth principal meridian in the Military Bounty Tract,) “being the same tract of land as conveyed by Abel Thompson to Moses Ward by deed,” dated, &c., “ and by Moses Ward conveyed to the said Ziba H. Kitchen, (the…

In each of the two cases of John Weldon, plaintiff, against the New York and Harlem Railroad Company, defendants, and John Weldon and Wife, plaintiffs, against the same Company, the defendants appeal from an order denying a motion for a new trial. The evidence was the same in the one action as in the other.

, Esq., Referee. The action was brought to recover the sum of $400 and. interest paid by the plaintiff, Patrick L. Hearne, to the owner of the Metropolitan Theatre for the rent thereof for one week, while it was in the use and occupation of the defendant, under a hiring at that rent, payable weekly. The money is alleged to have been paid by the plaintiff at the defendant’s request.

This is an appeal by Alexander Kyle, Jr., and Justus Earle, (the defendants,) from a judgment in favor of the New York and Harlem Railroad Company, (the plaintiffs,) rendered on a trial had in June, 1857, before Mr. Justice Hoffman, without a jury- The action is one by the plaintiffs, as judgment and execution creditors of Kyle, to set aside a deed from Kyle to Earle, dated July 6, 1854, as fraudulent and void as against the plaintiffs and other creditors of Kyle.

The action was brought to recover the amount of a promissory note for $500, dated Novembers, 1855, made by the defendant, payable to the order of the Atlas Mutual Insurance Company, and indorsed to the plaintiffs.

This is an appeal by John Davol, the defendant, from a judgment in favor of Harris Wilson, the plaintiff, rendered on a trial had before Mr. Justice Slosson, without a jury, on the 23d of April, 1857.

Action to recover from the defendants, as common carriers, the value of goods destroyed by fire, after delivery to the defendants for carriage. The plain tiffs purchased at New Haven, Connecticut, a quantity of India rubber slippers and sandals to be shipped to them at Liverpool, in England, the vendor to deliver them on ship board at the city of New York.

This is an appeal by the defendant, John A. Millard, from an order made June 27, 1859, by Mr. Justice Hoffman, overruling his demurrer to the complaint of the plaintiff, Isaac Merritt.

This suit is brought by Dayton against Wilkes to obtain a dissolution of a partnership between them, and accounting an a distribution of the assets of the firm.

Motion by the plaintiff to vacate an order for a new trial, made at a previous General Term. The action was brought by a judgment creditor of one member of an alleged co-partnership, in carrying on a hotel, to set aside an assignment and for an account of the debtor’s interest in the business.

In this action a decree for divorce having been granted, a reference was ordered to inquire what alimony should be allowed to the plaintiff. (6 Duer, 102-151.) Pending the reference and in July, 1859, an order was made allowing temporary alimony at the rate of $200 per month, and that the defendant advance to her $1,500 towards counsel fees and the expenses of the reference.

This action was tried on the 28th of January, 1859. A-case containing exceptions taken at the trial was served on the 10th of February, and amendments thereto on the 8th of March, and soon thereafter the exceptions and amendments were left with the Judge to be settled, and were settled in July, 1859. ■ In the meantime, and on the 19th of May, judgment was perfected and notice thereof was served on the defendants’ attorney, but no appeal was taken from the judgment.

The plaintiff herein having commenced this action by service of the summons, applied by motion to compel the defendants to produce their books of account and submit them to the plaintiff for his inspection, or to furnish the plaintiff sworn copies of so much and such parts of their books as contained any memorandum or entry relating to goods consigned to them, as the factors and agents of the plaintiff, for sale; and the ground on which the discovery was sought was, that the…

The order appealed from in this case is as follows: On reading and filing affidavit of Benjamin Waterbury and notice of motion and order to show cause, and after hearing, &c., ordered that the plaintiff cause the judgment roll in this action, upon the report of the Eeferee therein, to be filed within ten days after service of a copy of this order, and pay to the defendant’s attorney $10 costs of this motion.

This action is brought for the purpose of restraining the defendant from removing a portion of the stone stoop or portico of the plaintiffs’ building on the southerly side of Thirty-seventh street, and from extending the westerly party wall thereof, northerly, in part on the plaintiffs’ ground, to the southerly line of the street.

In this case certain judgment creditors of the defendant Hathorne, caused him to be examined before a Judge of the Supreme Court on proceedings supplementary to execution issued on a judgment recovered in that Court, procured an injunction from a Judge of that Court, to restrain him from disposing of or interfering with his property, and the plaintiff herein was appointed Receiver of his property.

Demurrer to the complaint. The pleadings, so far as it is material to state them to show the points decided herein, are set forth in the opinion of the Court.

<p>1. It is not necessary that a corporation, plaintiffs, should in the complaint allege that the plaintiffs are a corporation.</p> <p>2. Mor is it necessary, in declaring against a corporation, to allege that the defendants are a corporation.</p>