Volume 5 — Daly's New York Common Pleas Reports

Buckingham Smith, a gentleman advanced in life and of feeble health, who resided in Florida, and who had formerly been the diplomatic representative of the United States in Mexico and in Spain, came to the city of New York, and, upon leaving a city railroad car, in the evening, was suddenly seized with some malady, and fell down in the street.

<p>Appeal by defendants from the Eighth Judicial District Court.</p> <p>The action was brought against the defendants, who are a religious corporation, to recover the amount of certain scrip issued by the corporation to the plaintiff and his brother, which was then due and payable. The defendants set up by way of counter-claim $121 22 for dues owing by the plaintiff and his brother as members of the congregation under the by-laws. The plaintiff claimed that he and his brother were not, during the period for which the dues were charged, members of the 'Congregation, and showed that on the 24th of August, 1868, he and his brother sent the following letter to defendants :</p> <p>“ We, the undersigned, hereby resign our membership in the Congregation 1 Daruch Amuno ’ until another reader of file said congregation is elected.</p> <p>“New York, Aug. 24th, 1868.</p> <p>“ (Signed,)</p> <p>“H. Marks,</p> <p>“M. Marks.”</p> <p>The congregation, at a stated meeting of the Board of Trustees, refused to accept this resignation, and notified plaintiff and his brother of the fact. Plaintiff and his brother attended a meeting of the congregation, as members, after having forwarded this letter; paid their dues for the quarter beginning September, 1868, and some time between the last week in September and the first week in October, 1868, they voted for a reader of the congregation. According to the by-laws, a member in arrears could not vote, and the congregation would not permit plaintiff and his brother to vote until they had paid their dues. The defendants claimed that plaintiff and his brother were still members of the congregation, and at the commencement of the action they were indebted to the defendants in the amount stated for their dues. It further appeared that notices of the various meetings held by the congregation were regularly sent by the defendant to the plaintiff and his brother, up to the time of commencing this action.</p> <p>The justice rejected the counter-claim, and gave judgment in favor of the plaintiff for the amount of the scrip.</p>

The defendant kept a barber’s shop, and the plaintiff was one of his 'customers who had been in the habit of getting shaved in the shop for a considerable period. Upon the occasion which gave rise to this action, he came to the shop to get shaved, and taking off his overcoat, hung it upon a peg in the shop, near the entrance,' where other coats were hanging. After he was shaved, he went to get the overcoat, and it was missing.

The action was to recover the last quarter’s rent due on a lease of 220 Mercer street, in Tew York city, for the three years ending May 1st, 1871, at the yearly rent of $1,500.

<p>Defendant made a verbal agreement for the hiring of premises for one year, and subsequently requested that a written lease should be given to him, A written lease was prepared, which the defendant refused to accept, and refused to take the premises. Reid, that the parol lease was not rescinded by what occurred subsequent to the making of it, and that the defendant was liable for the rent of the premises.</p>

<p>Appeal from a judgment of a District Court.</p> <p>The facts are fully stated in the opinion.</p>

Appeal by defendants from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the decision of a judge thereof, after a trial before, him, without a jury. The action was for breach of contract for refusing to accept and pay for goods agreed to be purchased by the defendants.

Appeal by defendant from a judgment of this court, entered on the verdict of a jury. The action was against the defendant, a married woman, to recover $250, loaned to her to erect buildings on land owned by her in her own separate right. The facts are fully stated in the opinion.

<p>The sureties on an undertaking, required by § 834 of the Code of Procedure to render effectual an appeal to the Court of Appeals, are liable for the costs on dismissal of the appeal, as well as where the judgment is affirmed.</p> <p>The sureties on such an undertaking are not released from liability by their failure to justify after being excepted to.</p> <p>In an action on an undertaking given on appeal from a judgment brought by the persons recovering the judgment, the fact that one of them had been discharged in bankruptcy before the judgment was obtained, and that his interest had passed to his assignee in bankruptcy, can only be made available by way of abatement for non-joinder, and the objection is waived if not taken by answer.</p>

<p>Appeal by the defendant Hetteriek from a judgment entered on the report of a referee.</p> <p>The action was brought against Martha M. Hetterick and Benaiah G-. Stokes, for the purpose of having a resulting trust declared to exist in favor of the plaintiff, in regard to certain real estate in the city of New York, which was alleged to have been purchased with the money of the defendant Stokes, and the conveyance made to the defendant Hetterick, at a time when Stokes was indebted to the plaintiff.</p> <p>On the reference, it appeared that in 1853 a suit was commenced in the Supreme Court by the plaintiff against Henry Stokes and Benaiah G. Stokes, and in 1870 judgment was entered in that suit for $41,951 14 against both defendants. This judgment was opened as to Henry Stokes, and all proceedings against his separate property or the partnership property stayed. Execution was issued against the separate property of Benaiah G. Stokes, and on its return unsatisfied, supplementary proceedings were had, and a receiver appointed of his property.</p> <p>The defendant Hetterick, who was the only one who appeared or defended in this action, alleged that Benaiah Gr. Stokes had colluded and conspired with the plaintiff in obtaining the judgment, and in support of this showed that on a trial of the cause before Judge Roosevelt in 1853, a decision was rendered which was favorable to the defendants, and that the suit was not touched again from that time until 1870, when a substitution of-attorneys for the defendants was procured by Benaiah Gr. Stokes; an amended and a supplemental complaint served, and the issues referred by consent, and on the referee’s report judgm ent entered. The referee here found, however, that there was no proof sufficient to establish fraud or collusion on the part of B. Gr. Stokes, and that the judgment against him was without taint of fraud.</p> <p>The referee also found that the defendant Benaiah Gr. Stokes, in 1861, purchased the house and lot No. 10 Lexington avenue, and paid for it $11,000. That, although Stokes paid the entire consideration money, he procured the deed of the property to be made to the defendant Martha M. Hetterick, ■who was then his kept mistress. That at the time of this conveyance Stokes was indebted to the plaintiff in an amount exceeding the purchase price of the premises, and was largely insolvent.</p> <p>From these facts the referee derived the conclusions of law that under §§ 51 and 52 of 1 R. S. 728, the title to the premises was vested absolutely in the defendant Hetterick, with, however, a resulting trust in favor of the creditors of Stokes who were such at the time of the payment by him of the consideration, and that the plaintiff, as such a creditor, was entitled under such resulting trust to have the house, and lot, and the value of the use and occupation of the same by the defendant Hetterick, from the date of the conveyance to her to the time at which she might surrender the same under the decree of the court, and also all the rents and profits derived by her from the same, whether by lease, sale, mortgage, or otherwise, applied towards the payment of the plaintiff’s judgment against B. Gr. Stokes. To accomplish this result the referee ordered judgment : 1. That the defendant Hetterick be adjudged to hold the premises in trust for the benefit of the plaintiff. 2. That the premises be sold, and the proceeds applied to the payment of the plaintiff’s judgment. 3. That a receiver be appointed to receive a conveyance of the premises from the defendant Hetterick, and also to demand and receive the value of the use and occupation and the rents and profits of the premises. 4. That the defendant Hetterick be perpetually enjoined from disposing of, or interfering with the premises or the rents and profits; and 5. That she execute a conveyance of the premises to the receiver, and pay over to him all profits or income derived by her in any way out of the same, and that it be referred to a referee to take an account of such rents and profits.</p> <p>Judgment was entered on this report without any application to the court, and in the judgment the receiver and referee were nominated (though they had not been in the referee’s report). On the reference to take account of the rents and profits, the referee reported that the same amounted to $22,108 42, and on this report judgment was entered against the defendant Hetterick for that sum.</p> <p>From both the interlocutory and the final judgment appeals were taken.</p>

Appeal by the defendant from a judgment of this court entered on the report of a referee. The action was brought to compel the defendant to complete a contract entered into by him for the purchase' of land. As an excuse for his failure to complete his contract to purchase, the defendant alleged certain defects in the plaintiffs* chain of title to the premises.

Appeal by defendants from an order at special term, denying a motion to have the cause sent back to the referee before whom it was tried, and have him find specifically on certain questions of facts raised by the defendants.

. Appeal by defendant from a judgment of the general term of the Marine Court, reversing a judgment of that court, entered on the decision of a judge thereof, alter a trial before him without a jury. The action was brought to recover the balance due on two promissory notes made by the firm of White, Son & Whitmore, of which it was claimed the defendant Lock was at the time of making the notes a general partner.

<p>The regulations of the defendants (a railroad company) required that a passenger’s ticket should be indorsed by the conductor if he desired to stop over at a way station, and resume his journey on another train. Plaintiff, a passenger on a through train to New York, desiring to stop over at Little Falls, applied to the conductor of the train on which he was traveling to have bis ticket so indorsed, and was told by him that it was not necessary. Plaintiff stopped over at Little Falls, and resumed his journey on another train of the defendants, and, without applying to the conductor of that train to have his ticket indorsed, again stopped over at Amsterdam. On attempting to resume his journey from Amsterdam on another train, the conductor refused to recognize his ticket, because it was not indorsed in accordance with the company’s reg- , ulations, and ejected him for non-payment of his fare: Held, that the privilege granted him by the conductor of the train on which he first embarked, of stopping over at a way station, without having his ticket indorsed as required by the company’s regulations, was exhausted by his stopping over at Little Falls, and that, when he again embarked, he became subject to all the company’s regulations, and that he could not again stop over at a way station without having his ticket indorsed.</p>

Appeal by defendant from a judgment of the general term of the Marine Court affirming a judgment of that court entered after a trial before a judge without a jury. The action was brought to recover the possession of a. crayon portrait which it was alleged the defendant had unlawfully taken and detained.

Appeal by defendants from an order of this court made at special term directing a compulsory reference. The action was brought against the defendants as makers of three several bills of exchange to recover a balance due.

Appeal by defendant from an order of this court made at special term, directing (against the defendant’s opposition), a reference to hear and decide the issues, on the ground that the trial would require the examination of a long account. The action was brought to recover $5,000 for the services of the plaintiff as attorney and counsel, and the plaintiff served a bill of particulars, which extended over a period of several years, and included about thirty items.

Appeal by defendants from, a judgment of this court •entered on the decision of a judge after a trial before him without a jury.

Appeal by defendant fronl a judgment of this court entered on the report of a referee. The action was brought to recover a balance alleged to be due for work done and materials furnished by the plaintiff for the defendant in building a green house and grapery, and doing other work on defendant’s premises. One of the questions in issue was as to the terms of the contract under which the work was done.

The action was brought to recover the value of five hundred and fifty barrels of whiskey, which the plaintiff alleged he had purchased from the defendants King & Story, and which the defendants Pike & Co. also claimed by purchase from the defendants King & Story while it was stored in the warehouse of the defendant Mullany. The facts are fully stated in the opinion of Chief Justice Daly.

<p>Appeal from a District Court.</p>

<p>Appeal by defendant from a judgment of this court entered on the verdict of a jury.</p> <p>Action to recover broker’s commission on the sale of the-house and lot 45 East 34th street, in the city of New York, the' plaintiff claiming as assignee of the firm of Abner L. Ely.</p> <p>Defendant denied the employment of plaintiffs’ assignors,, as well as the rendering of any services.</p> <p>Plaintiffs had a verdict for $695 08, and a motion for a new trial was denied.</p> <p>The facts are fully stated in the opinion.</p>

Appeal by plaintiffs from a judgment of this court entered, on the decision of a judge at trial term. Held: in order to provide for their payment (citing Lanfear v. Blossom, 1 La.

The execution in this case was issued out of this court to the sheriff of New York county, against the property of the defendant, upon a judgment of the Marine Court, which, by virtue of the filing of a transcript in the office of the clerk of the city and county of New York, under the provisions of § 68 of the Code, bad become a judgment of this court.

<p>Where a referee, in an action for services as an attorney, there being contradictory testimony as to whether there had been a settlement and release, reported in favor of the plaintiff, the court at general term reversed the judgment entered on the referee’s report, and vacated the order of reference, on the ground that the evidence on the part of the defendant in support of the release was clear, consistent, direct and probable, and that on the part of the plaintiff against it was confused, vacillating, inconsistent and improbable, and because the plaintiff had failed to deny, by way of rebuttal, admissions which the defendant’s witnesses testified he had made.</p>

Appeal by defendants from a judgment of the general term of the Marine Court, affirming a judgment of that court, entered on the verdict of a jury. The plaintiff, as consignee of 17 cases of glass, shipped to him from London on hoard the vessel of the defendants, sought to charge them with the damage arising from the breakage of the glass, which breakage he alleged was caused by the negligence of the defendants.

Appeal by plaintiff from a judgment of this court entered on the report of a referee.

Appeal by defendants from a judgment of the general term ■ of the Marine Court, affirming a judgment of that court: entered on the verdict of a jury. The action was brought against the defendant for its negligence, by which a gas pipe was broken and the gas escaped into > the plaintiff’s house, where it came into contact with flame and exploded.

This action was brought by the plaintiffs, as sub-contractors, against the defendants Haight, as owners, and the defendant Jones, as contractor, to foreclose a mechanic’s lien, filed against the premises situated on the southeasterly corner of Fifth avenue and Fifteenth street, in the city of New York.

The object of the action was to test the constitutionality of of L. 1873, c. 538.

Appeal in first five cases by defendant from order of special term denying motion to vacate order of arrest. Appeal in sixth case by plaintiffs from order of special term vacating order of arrest. The facts are stated in the opinion.

<p>Appeal by defendants from a judgment of this court entered on the verdict of a jury.</p> <p>The action was brought by the Mechanics’ and Traders’’ National Bank of the City of New York, on a note fort$2,500, made by the defendant Crow to Dusenbury & Nelson, and£indorsed by the defendant Riceman before its discountfby the plaintiff.</p> <p>The facts on which the defendants Crow and Riceman claimed to escape liability, are stated in the opinion.</p> <p>Plaintiff obtained a verdict for the full amount of the note and interest, and Crow and Riceman appealed.</p>

The relator moved for a mandamus upon affidavits showing-that he was a stationer, and had furnished hooks, stationery, printed calendars, etc., for the various courts and public offices in the city of New York, and that his bills for the same had been presented to the full board of supervisors, and audited and allowed by them at the sum of $6,927 02.

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the decision of a judge thereof, after a trial before him without a jury.

Appeal by defendants from a judgment of the Fifth Judicial District Court. This action was brought on a promissory note for $200, made by the defendants to the order of Pardee & Co., and by ■them indorsed over to the plaintiff.

<p>Defendant having directed a tradesman, to sell A. any goods he wanted, and be-(defendant) would be responsible: Held, that taken in connection with the other-circumstances of the case, e. g., that defendant gave directions as to where the goods should be sent, &c., these words were sufficient to show that the intention, of the parties was that defendant should be primarily liable for the goods.</p>

Appeal by plaintiff from a judgment of this court, entered ■on the dismissal of the complaint on the trial. The facts are stated in the opinion.

Appeal by plaintiff from a judgment of this court, entered on an order at special term sustaining a demurrer to the complaint. The material averments of the complaint are stated in the opinion.

Appeal by plaintiff from a judgment of this court, entered on an order made at special term, overruling k demurrer to the special matter set up in the defendant’s answer.

Appeal by both plaintiff and defendant from an order of this court at special term, sustaining a demurrer as to part of the answer, and overruling it as to the remainder. The action was brought to recover from the defendant a penalty of $2,700, which it was claimed he had incurred by a violation of §§ 7 and 8 of the act for the preservation of game, passed April 26th, 1871 (2 L. 1871, c. 721, p. 1669). The sections under which the penalty was claimed are as follows: “ § 7.

<p>Appeal by plaintiff from an order of the special term of this court, directing the discharge of a mechanic’s lien.</p> <p>On March 20th, 1873, the plaintiff filed a lien against certain. buildings belonging to the defendant and situated on the northerly side of Seventy-fourth street and the southerly side of Seventy-fifth street, near Madison avenue, in the city of New York, to secure a claim of $15,212 65, for materials furnished to the defendant, and used in the erection of said buildings.</p> <p>An action was subsequently commenced in this court to foreclose said lien, and David McAdam, Esq., was appointed referee to hear and determine. On July 17th, 1873, the referee made his report in favor of the plaintiff for the sum of $954 20, and on July 23d, 1873, judgment was entered thereon. ^From this judgment the plaintiff appealed to the general term of-this court, claiming that he should have recovered the full amount secured by his lien.</p> <p>After the appeal had been taken, the defendant tendered to the plaintiff the amount of the judgment and interest, and as the latter refused to receive the same, he deposited it with the clerk of this court to the credit of this action. He thereupon requested the county clerk to discharge the lien of record, and upon his refusal to comply with the request, he applied to this court for an order directing him so to do.</p> <p>An order was accordingly made at the special term directing the discharge of the lien upon terms. From this order the plaintiff appealed to the general term.</p>

The relator obtained an order for an alternative writ of mandamus to compel the comptroller of the city of New York to pay him his salary as deputy clerk of the Court of Special Sessions in New York city, fo1 the months of February, March, April, and May, 1873, and on the writ being issued the comptroller made return to it, that subsequently to the appointment of the relator to such office, to wit, in the year 1872, the relator was duly elected a member of the Legislature of…

Appeal by defendant from a judgment of this court entered on the verdict of a jury at trial term.

The action was'brought to recover $200, being a balance alleged to be due to the plaintiff from the defendant, on a loan of $500, which the former claimed he made to the latter. The return of the justice stated that the trial took place, and the case was closed on the 7th day of February, 1873, and that thereupon the same was submitted to him for his decision •and determination.

The plaintiff had obtained judgment in a District Court, and, on appeal to this court, the judgment was reversed on the ■facts. The respondent then moved for a reargument, on the grounds that the case had been submitted by him, and not argued orally, and that the court had not properly understood the facts.

Appeal by plaintiff from a judgment dismissing the complaint entered on the decision of a judge of this court, after a trial before him at special term.

One Francis Owens dying in 1868, by his will gave all his property (in which was included certain real estate) to his wife, Ann Owens, for her life, and on her death three-quarters thereof to his daughter Ann Eliza Owens, and the remaining one-quarter to his daughter Sarah Ann Owens. In May, 1873, Ann Owens applied to have her daughter Ann Eliza declared an idiot, and on a commission duly issued for that purpose she was so declared.

Appeal by defendant from a judgment of absolute divorce. The plaintiff obtained an absolute divorce from the defendant, and the defendant appealed, on the ground that the evidence was not sufficient to justify the court in convicting the defendant of adultery.

Appeal by plaintiff from a judgment of this court dismissing the complaint, entered by direction of the court at trial term. The action was brought by the plaintiff as assignee of Wesley E. Shader, on a life insurance policy on Shader’s life. The defense (among other things) was that the policy had never been delivered to Shader, and that the consideration for the issuing of the policy had never been paid.

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the decision of a judge after a trial before him, without a jury.

Appeal by defendants from a judgment of this court, entered on the verdict of a jury. The action was on a promissory note for $2,800, dated New York, January 12th, 1867, payable four months after date, to the order of S. D. Cozzens, at No. 2 Murray street, made by the defendant Ryder, and indorsed by the defendants Cozzens and Mowry.

<p>Exceptions ordered to be heard in the first instance at general term.</p> <p>The action was brought by Edwardi L. Field, as surviving • administrator of Julia F. Brailesford, deceased, against Joshua M. Yan Cott and Eli H. Reed, upen a joint and several bond, in the penalty of $12,000, executed by Thomas Q-. Yan Cott, principal, and Joshua M. Yan Cott and Eli H. Reed, sureties, the condition being that Thomas G. Yan Cott should faithfully execute the trust reposed in him, as administrator with the .will annexed of Gabriel Yan Cott, late of the city of New York, deceased, and obey all orders of the surrogate of •the county of New York, touching the administration of the estate committed to him.</p> <p>The complaint, after alleging the joint execution of the bond, set forth the issuing of the letters of administration to 'Thomas G-. Yan Cott, his receipt, and conversion of the assets •of the estate, amounting to $17,390 74; his final accounting before the surrogate; the decree of the surrogate, made Feb. :23d, 1871, that he. pay to plaintiff the sum of $2,002 64; the neglect of said administrator to pay the same; the filing of the .transcript of the decree4 the issuing of execution thereon against Thomas G. Yan Cott; its return unsatisfied, and the assignment of the bond in question to the plaintiff for prosecution.</p> <p>The defendant, Joshua M. Yan Cott, interposed, by his .answer, two grounds of defense, to wit:</p> <p>(1) That the said Gabriel Yan Cott “ was immediately preceding, and at the time of his death, an inhabitant of the county of Queens, in the State of New York, and was not then an inhabitant" of the county of New York, and that jurisdiction to grant letters of administration upon his goods pertained and belonged to the surrogate of the county of Queens, and not to the surrogate of the county of New York ; and that the surrogate of the county of New York had not jurisdiction to take the said bond, or to grant or issue the said supposed letters of administration, or to entertain the said supposed proceedings, or to make the said supposed decrees or orders alleged in the said complaint, and .that the same were and are void in law and of no effect.”</p> <p>(2) That the said Thomas G. Yan Cott was living and an inhabitant of the State of New York at the time of the commencement of the action, and was a necessary party as defendant in the action.</p> <p>At the trial the court held that Thomas G. Yan Cott was not a necessary party to the action, and refused to admit any evidence to show that Gabriel Yan Co'tt at the time of his decease was not an inhabitant of the county of New York.</p> <p>The court directed a verdict for the plaintiffs for the .amount claimed and interest, amounting to $9,283 01, and directed the exceptions' to be heard in the first instance at the general term.</p>

<p>Appeal by plaintiff from a judgment of this court at special terra dismissing th.e complaint.</p> <p>The action was brought to compel the defendant to transfer on its books certain shares of its stock to the plaintiff. The facts are stated in the opinion. After a trial at special term, the complaint was dismissed. The plaintiff appealed to the general term.</p>

Appeal by the plaintiffs from a judgment of the general term of the Marine Court, reversing a judgment of that court in their favor. The action was for trespass. Defendant justified under an execution against the plaintiffs. The facts are stated in the opinion.

<p>Appeal from an order of this court made at special term ordering a reference in a proceeding to enforce a mechanic’s lien, and also from an order denying a reargument of the motion to refer.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendants from a judgment of this court entered on the report of a referee.

<p>The act of 18Í2 (L. 18Í2, c. 580, § Í), providing that certain assessments in the city of New York should not be vacated for any irregularity in publishing notices, <fcc., did not have the effect of confirming sales theretofore made, for nonpayment of assessments which were invalid on account of such irregularities.</p> <p>In the exercise of its powers in regard to taxation, it was competent for the Legislature to confirm such irregular assessments, and make them valid liens from the time of the passage of the act of 18Í2.</p> <p>"Where the statute (L. 1811, c. 381, § 4) makes the leases given in the sale of such lands presumptive evidence of the regularity of the sale and all proceedings prior thereto, such a lease, although in fact invalid for irregularity in the prior proceedings, is an apparent cloud on the title to the land which it purports to lease, and the owner of the land may maintain a suit in equity to set it aside, if already executed, or to enjoin the execution, if that is not already done.</p>

Appeal by defendant from an order overruling- a demurrer to the complaint for misjoinder of causes of action and of parties. The facts are stated in the opinion.

<p>Appeal by defendants from a judgment of this court entered on the verdict of a jury, and also from an order denying a motion for a new trial.</p> <p>The action was for the conversion of 164 bales of cotton.</p> <p>Plaintiff had a verdict for $17,639 86, and a motion for a new trial was denied.</p> <p>Defendants appealed to this court.</p>

<p>The statute of limitations commences to run against an attorney’s claim for services as soon as he has performed the immediate service for which he is retained.</p> <p>An attorney was employed in 1852 to defend an action, which shortly thereafter was abandoned by both sides, and nothing was done in it until 1862, when, without any instructions from his client, he caused the suit to be dismissed for want of prosecution. Held, that the attorney’s claim for compensation accrued when the suit was abandoned in 1852, and that the statute of limitations began to run against it from that time.</p> <p>In computing the amount due on a bond and mortgage, the accrued interest cannot be added to the principal due at the time of a payment not equal to the interest, and the whole balance remaining after deducting such payment used as the principal on which to compute the future interest.</p>

<p>Appeals from orders of this court denying motions to vacate judgments in the above-entitled actions.</p> <p>The judgments had been entered on forfeited recognizances, and the judgment rolls in all the cases were substantially as follows: (The consent to the entry of judgment annexed to the recognizance was contained, however, in only two of the rolls).</p> <p>(.Recognizance.)</p> <p>“State op New York, ) City cmd County of New York, j 8S’ *</p> <p>Be it remembered, that on the twenty-fifth day of June, in the year of our Lord 1873, John J. Walsh, principal, of No. 324 Fifth street, in the city of New York, and Peter J. Hickey, surety, of N o. 167 East 33d street, in said city, personally came before the undersigned, justice of the Supreme Court of the State of New York, and acknowledged themselves to owe to the people of the State of New York, that is to say, the said John J. Walsh, principal, in the sum of one thousand dollars, and the said Peter J. Hickey, surety, in the sum of one thousand dollars, separately, of good and lawful money of the United States of America, to be levied and made of their respective goods and chattels, lands, and tenements, to the use of said people, if default shall be made in the condition following,' viz.:</p> <p>Whereas, the said John J. Walsh was, on the sixteenth day of June, 1873, duly indicted in the Court of Oyer and Terminer in and for the city and county of New York, for the offense of conspiracy:</p> <p>Now, therefore, the condition of this recognizance is such, that if the above-named John J. Walsh, principal, shall personally appear at the present term of the Court of Oyer and Terminer, held in and for said city and county of New York, to answer to said indictment against him, and abide the order of the said court thereon, and also, in like manner, personally appear at any subsequent term of said court, to which the proceedings in the premises may be continued, or to any court where said indictment may be sent for trial, if not previously surrendered or discharged, and so from term to term until the final decree, sentence, or order of the court thereon, and abide such final sentence, order, or decree of the court thereon, and not depart without leave, then this recognizance to be void, otherwise to be and abide in full force, power, and virtue.</p> <p>John J. Walsh,</p> <p>Principal. Petek J. Hickey,</p> <p> Surety. </p> <p>Taken and acknowledged before me,) the day and year first aforesaid. j</p> <p>Ho ah Davis,</p> <p> j. s. a </p> <p>And we, the undersigned, principal and surety in the annexed recognizance, do hereby stipulate, agree, and consent, that in case said recognizance shall be forfeited, that a copy of the order of the court forfeiting the same, together with this recognizance, be filed in the office of the clerk of the city and county of New Yrok, and that judgment maybe entered for the several sums set forth in said recognizance, and that execution issue forthwith thereon according to law.</p> <p> Witness, </p> <p>Chas. E. Maksac.</p> <p>John J. Walsh,</p> <p>Principal. Petek J. Hickey,</p> <p> Surety. </p> <p>Endorsed.</p> <p>Filed 25th day of June, 1873.</p> <p>Bond approved as to form and sufficiency.</p> <p>Henky C. Allen,</p> <p> For Dist. Attorney. </p> <p> (Order of forfeiture). </p> <p>At a Court of Oyer and Terminer, holden in and for the city and county of New York, at the City Hall of the said city, on Monday, the 22d day of December, in the year of our Lord one thousand eight hundred and seventy-three.</p> <p>Present—The Honorable Charles Daniels,</p> <p> Justice of the Supreme Court of the State of New York. </p> <p> Justice of the Oyer and Terminer. </p> <p>The People of the State of New</p> <p>York I On Indictment for</p> <p>ys, ' Conspiracy.</p> <p>John J. Walsh.</p> <p>The defendant not appearing, and Peter J. Hickey, his surety, not bringing him forth to answer to this indictment, pursuant to the condition of their recognizance, on motion of the district attorney, it is ordered by the court that the said recognizance be and the same is hereby forfeited. And it is further ordered that the said recognizance, together with a certified copy of this order, be filed in the office of the clerk of the city and county of New York, and that judgment be entered thereon, according to law, against the said John J. Walsh, the defendant above named, and the said Peter J. Hickey, his surety, for the several sums set forth in the said recognizance.</p> <p>A true extract from the minutes.”</p> <p>J. Sparks, Cleric.</p> <p>Endorsed.</p> <p>Riled 24th day of December, 1873.</p> <p>Two hours and thirty minutes.”</p> <p>An application was made to the court at special term to set aside these judgments, on the ground that they were void. The motion was denied, and this appeal was taken.</p>

The action was for money had and received to the use of the plaintiff. The answer was a general denial. The facts of the case were that on Oct. 14th, 1871, the defendant was the lessee of premises in the city of New York, a part of which he used for the purposes of a business there carried on by him, another part for dwelling purposes for himself, and the remainder he rented to various tenants.

<p>A discharge in bankruptcy is a good defense to an action for a debt provable in bankruptcy incurred previous to the filing of the petition, even as against a creditor who is not named as such in the schedules, and who had no notice of the proceeding.</p> <p>In order to revive a debt barred by a discharge in bankruptcy, the new promise to pay should be distinct, unambiguous and certain, and a mere promise by a person discharged in bankruptcy to pay “ as soon as he got through with that squaring up,” it not being shown what the “ squaring up ” was, is not sufficient.</p>

Motion to amend a case agreed upon and submitted in a controversy without action, by striking out an admission contained in it. The question submitted to the court for its decision was, whether Apthorp’s lane and Bloomingdale road, in the city of New York, had been duly closed according to law, and whether the plaintiffs, as abutting owners, acquired the fee simple to the middle of the road.

Appeal by defendants from a judgment of this court, entered on the decision of a judge of this court, after a trial before him, without a jury. The facts are stated in the opinion.

<p>Appeal from the general term of the Marine Court.</p> <p>The facts are stated in the opinion.</p>

The facts are as follows: On the 19th day of August, 1873, the defendant was master of the propeller Belief, and permitted to be thrown into the waters of the North river, on said day, a large quantity of ashes, and this action was brought to recover a penalty of fifty dollars imposed by an “ act to establish regulations for the port of New York,” passed April 16th, 1857.

<p>Appeal from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the verdict of a jury.</p> <p>The action was against the defendant as a common carrier, for loss of the plaintiff’s trunk.</p> <p>On the trial the defendant’s counsel offered to show that the company sent goods only upon bills of lading excluding passenger baggage; that the checks brought by expressmen (such as the one set out in the opinion) were countersigned, and that the person delivering the goods then went to the office and took a hill of lading by which the company was responsible only for the delivery of the goods to the Old Colony Railroad. This evidence was excluded.</p> <p>The court charged the jury that, for the purposes of the action, the Narragansett Steamship Company was a line through to Boston, the same as if their vessels went to Boston, although they formed a line with the Old Colony Railroad, and that they were bound t© take the trunk to Boston.</p> <p>The other facts are stated in the opinion.</p> <p>The plaintiff had a verdict for $434 50, and the judgment thereon was affirmed by the general term of the Marine Court.</p> <p>Defendant appealed to this court.</p>

<p>Appeal from a judgment of this court entered by direction of the court at trial term, dismissing the complaint.</p> <p>The facts are stated in the opinion.</p>

<p>A written instrument convoying an interest in property—e. g. a lease—takes effect from the time of its delivery to the grantee, and not from the date on which it purports to have been executed.</p> <p>In order to sustain a judgment against a person sought to be charged as owner in a proceeding to enforce a mechanic’s lien, there must he evidence to show that nt the time the contract for the work was made, he was the owner within the meaning of that word as used in the mechanics’ lien act.</p>

The action was brought to set aside an award made by arbitrators, and to determine the rights of the parties under a certain' lease. The facts of the case were as follows : On the 4th of February, 1851, the plaintiff’s ancestor leased to defendant’s assignor the lot of land (now) 8 Park place, in the city of New York, 25x75 feet, for twenty-one years, from May 1,1851.

<p>A party to an action, on bis examination before trial as a witness on behalf of the adverse party, under §§ 390 and 391 of the Code of Procedure, cannot be compelled to produce his books and papers for inspection.</p> <p>The mode of obtaining an inspection of the books and papers of an adverse party is provided for by 2 R. S. 199, § 21, and Rules 18, 19, 20, 22 of the Supreme Court, and the mode of obtaining an inspection and copy of a particular paper is provided for by § 388 of the Code of Procedure.</p>

<p>A conveyance of land was made upon certain trusts which were in part void, and the trustees under the power to sell given them by the deed, reconveyed to their grantor by a deed expressed to be made for a consideration of §10,000, but in which all the beneficiaries under the trusts did not join. Held, that the acknowledgment of the receipt of the consideration in the deed of reconveyance ■was prima facie evidence that it had been paid, and that the deed vested in the grantee named in it a clear title, freed from all the trusts created by the deed to the trustees.</p>

The action was brought to recover damages for the breach of a written agreement dated March 9th, 1875, by the terms of which The Elting Woolen Company agreed to deliver at the store of John T. Martin “ two hundred and thirty thousand yards wool dyed indigo blue blouse flannels, to weigh not less than five and a quarter ounces per yard, and twenty-eight inches wide, full government standard goods, to be satisfactory to the said Martin as per two samples submitted.

The action■ was brought against the defendant to charge it as the undisclosed principal on a sale of goods by the Sterling Oil Works to the plaintiffs’ firm of Yenni & Gregory, the title to the said goods having failed.

Appeal by- plaintiff from an order of this court made at special term. The action was brought against the defendant Meserole and five others to recover damages for breach of a contract in failing to take and pay for certain coaches ordered to be built for them by the plaintiff.

The facts were as follows: The plaintiff and the defendants had been partners in business in the city of FTew York, hut differences had arisen between them, and, on March 15th, 1872, there was pending between them an action for a dissolution of the partnership and an accounting.

<p>Appeal, from judgment of justice of Fourth District Court in' favor of plaintiff for $85.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of this court entered on the report of a referee to hear and determine.</p> <p>The action was brought by the plaintiff to recover from the-defendants the sum of $780 for an alleged violation of agreement between the plaintiff and the defendants, dated February 14tb,. 1872, in which agreement the plaintiff engaged as a “ song ” and “ dance ” performer with the defendants, for a season of about thirty weeks, commencing on or about April 1st, 1872, and ending on or about November 1st,-1872, to perform with Forepaugh’s Menagerie, in any part of the United States or Canada, at a salary of thirty dollars per week.</p> <p>The defense was that the defendants had been obliged to discharge her on account of her improper conduct (the facts in / regard to which are stated in the opinion).</p> <p>The referee found that the plaintiff had performed her part of the contract, and had been discharged without cause, and ordered judgment in her favor.</p> <p>Defendants appealed.</p>

<p>Appeal from a judgment of this court entered, on the report of a referee to hear and determine.</p> <p>The action was brought to recover damages for the alleged negligence of the defendant, by which the plaintiffs’ premises were overflowed with water.</p> <p>' The facts, as found by the referee, were as follows : The plaintiffs were dry goods merchants, and occupied the basement of Hos. 115 and 117 Franklin street, in New York city. The adjoining premises were owned by Daniel Appleton & Co., who, on April 8th, 1868, made a contract with the defendant to erect a new building thereon. The defendant then made sub-contracts with Moore & Bryant tó do the mason work, with certain other parties to do the plumbing work, &c., and reserved the carpenter’s work for himself. After the roof of the building was on, and before it was entirely completed, a rain storm took place, and the plaintiffs’ premises flooded and their stock of goods injured under the circumstances described in the opinion. The referee reported in favor of the plaintiffs.</p> <p>Defendant appealed.</p>

<p>Exceptions ordered to be heard in the first instance at the general term. The facts are fully stated in the opinion.</p>

<p>Qucere, whether under the statute (L. 1849, c. 258, as amended by L. 1851, c. 455. and L. 18It- c. 153), a member of an unincorporated association can maintain an action at law against it, by suing the president or treasurer as such.</p> <p>Under the statute (L. 1849, c. 258, as amended by L. 1851, c. 455, and L. 1853, c. 153), allowing an action against an unincorporated association, composed of not less than seven persons, to be brought against the president or treasurer, an action against the president, secretary and treasurer is improperly brought.</p> <p>This court, on appeal from a District Court, will as a general rule refuse to amend the proceedings so as to conform them to the proof, where the defect was pointed out by objection taken on the trial, and the party in fault then neglected to apply to the court to amend the proceedings.</p>

The action was to recover damages for the defendant’s negligence by which the death of the plaintiff’s intestate was caused. The defense was, that the negligence of the deceased had contributed to the accident. ' ' On the trial it appeared that the deceased, while in a wagon crossing the defendant’s track in Mew York city, had been run into by the defendant’s locomotive, and killed. The facts relied on to show contributive negligence are fully stated in the opinion.

Appeal by plaintiff from a judgment of this court entered on the report of a referee to hear and determine. The action was brought to recover payment for publishing city advertisements in The New Yorker Journal. The defense was that the publication was unauthorized. The facts on which the authority to publish was claimed are stated in the opinion.1

<p>Where plaintiffs consigned to A. a large quantity of forges for sale, allowed him to place their name over the door of the store where he kept the forges for sale, and paid the first two months’ rent of such store: Held, that these facts were sufficient to justify the owner of the store in dealing with A. as being authorized to bind the plaintiffs for the further rent of the premises, and that he was not bound by a private agreement between the plaintiffs and A. that after the first two months A. should pay the rent.</p> <p>The consent of the owner of the premises to their use is necessary to establish the relation of landlord and tenant, and where the owner objects to the use of the premises, he cannot afterwards maintain an action for r.ent.</p>

One George W. Niles, who had served a term in the State prison, having assumed to act as an attorney and counsellor of this court, in several cases before it, and this fact having been brought to the notice of the court, it directed him to appear before it and state by what authority he did so. On January 13th, 1875, Niles having appeared before the general term (at which were present, Daly, Ch. J., Bobinson and J. F. Daly, JJ.), the following proceedings took place.

Motion to dismiss an appeal from the 8th Judicial District Court. The motion to dismiss the appeal was made on an affidavit setting up the following facts : Plaintiff recovered a judgment against the defendant in the 8th Judicial District Court of New York city, on Novemher 13th, 1873. Defendant appealed to this court, and the appeal was heard at the general term, in May, 1874, and the judgment affirmed.

<p>Qucere, whether the act of 1871 (L. 1871, c. 738, § 2) requiring actions against sheriffs to be brought within one year from the time when the cause of action accrued, is prospective or retrospective.</p> <p>An action against a sheriff by a purchaser, on an execution sale which Was after-wards set aside for irregularity, to recover back the money paid, is an action for the non-payment of money collected upon an execution, within the act of 1871 (2 L. 1871, c. 733, § 2), excepting such actions from the operation of that statute requiring actions against sheriffs to be brought within one year from the time the cause of action accrued.</p> <p>In such an action the sheriff cannot be allowed to retain the expenses of the sale.</p>

<p>Appeal by plaintiffs from a judgment of this court dismissing the complaint entered on the report of a referee to hear and determine.</p> <p>The facts are fully stated in the opinion.</p>

Appeal by defendant from a judgment of this court, entered on the verdict of a jury under the direction of the court. The facts are fully stated in the opinion.

Appeal by plaintiff from a judgment of this court entered on an order made at special term, overruling plaintiff’s demurrer to the first defense set forth in the defendant’s answer. The complaint alleged, in substance, that the plaintiff between July 1st, 1871, and April 1st, 1874, was commissioner of jurors of the county of New York, and entitled to a salary of §15,000 per annum, and that there was a balance due him of §21,500, on account of such salary. .

<p>An indorser of a note payable at a bank was informed by the holders, that the note had not been presented for payment on the day it fell due: Held, That this was notice to him that it had not been presented at the lanTc.</p> <p>Held, also, that the indorser, on such notice having been given to him, having answered, “You hold the note two or three days, and I will make it all right at the bank,” that this was sufficient to warrant the submission to the jury of the question, whether the indorser intended those words as an absolute promise to pay the note.</p> <p>A new trial, on the ground of surprise, will not be granted, when the facts by which the party claims to have been surprised were fully brought out on the trial, and he then neglected to take any steps to have a postponment of the trial,</p>

<p>The complaint in an action on an undertaking given on appeal to the Court of Appeals, to secure-fhe payment of the coats and damages awarded on appeal, and also of the judgment appealed from, alleged the recovery of the original judgment, and its non-payment, and the recovery of a judgment for costs on affirmance by the general term, and its non-payment, and the affirmance of the judgment in the Court of Appeals, with costs, and that those were unpaid, and then alleged the execution of the undertaking and set it out at length, and alleged that none of said damages and costs had been paid: Held, that this was a sufficient allegation of the execution and breach of condition of the undertaking, and that none of the several judgments mentioned had been paid.</p>

Appeals-from judgments of the general term of the Marine Court affirming judgments of that court entered on the verdict of a jury by order of the court. These were two actions which, by stipulation, were tried together, and the two appeals were heard together. The facts are fully stated in the opinion.

The action was for libel, and the complaint alleged that the defendants were the publishers of “ The ¡Nation,” a newspaper published in ¡¡Slew York city, and that the plaintiff had been for several years engaged in the business of overseeing or superintending silver mines, and especially of the Emma Silver ¡Mining Company; that on ¡December 18th, 1873, the defendants published in their paper an article entitled “ The True History of a Great Mining Enterprise,” in which were…

<p>In an action for deceit, where an order of arrest has been obtained on proof of the same facts as those alleged in the complaint, the order will not be vacated unless it is clear that on the trial the plaintiff must fail in his proof of the facts charged in his complaint.</p> <p>In an action for deceit by defendant, in procuring plaintiff to purchase land from him upon representations that he had a good title and that no one else made any claim to it, the defendant moved to vacate the order of arrest on affidavits by which he admitted the representations and claimed that he had a good title. The evidence as to whether defendant’s title was good was conflicting, but as it appeared that there was another claimant to the land, and that defendant had been aware of this fact but had not disclosed it to the plaintiff, the court held that it should be left to a jury to decide whether the representations were made with intent to deceive, and refused to vacate the order of arrest.</p>

<p>In an action for the conversion of money claimed to have been stolen from plaintiff by his son, and subsequently to have come into defendant’s possession, the only evidence in support of plaintiff’s case was that of his son, a child of nine years, who had stolen the money, and who on his examination contradicted himself in many material points, and who was directly contradicted by the defendant’s witnesses: Held, That the judgment entered on the verdict in favor of plaintiff should be reversed.</p>

Appeal by defendants from a judgment of this court, entered on the report of a referee to hear and determine. The facts are stated in the opinion.

<p>Appeal from a judgment of this court entered on the verdict of a jury.</p> <p>The action was brought to recover broker’s commissions on a sale of real" estate.</p> <p>The facts are fully stated in the opinion of Robinson, J.</p> <p>The plaintiff had a verdict, and the defendant appealed.</p>

<p>The court has power to allow the “case” made for the purpose of appeal to be amended, even after argument and decision in the appellate court.</p> <p>In an equity case, issues of fact had been framed and submitted to a jury, and the jury, under the instructions of the court, having found in the negative on • two of the issues, did not make any findings on the other issues submitted to them, and the court set aside these findings, and ordered a new trial, on the ground that they were against the weight of evidence. An appeal was taken from the order granting a new trial, and the “case” made for this appeal did not contain the judge’s charge, or the issues on which the jury did not pass. The court, at general term, reversed the order for a new trial, because tbe instructions to the jury, and all the issues presented to them, not being in the case, the error in their finding was not apparent. Held, that it was proper after the decision of the court, at general term, to allow the case to be amended ■ by inserting in it the judge’s charge, and the issues not passed upon by the jury-</p>

The action was brought against the defendants, as common carriers, to recover damages for their negligence in delaying to deliver to the plaintiffs goods consigned to them. The facts are fully stated in the opinion. Plaintiffs had judgment, and defendants appealed.

The action was brought to foreclose a mortgage on land in New York city, given by the East Side Association to Frederick S. Winston and Thomas Rutter, as trustees for the holders of fifty $1,000 bonds, made by the said association. The defendant Edward Kilpatrick defended, claiming that he had a lien on the land prior to that of the plaintiff’s mortgage.

<p>Where a prisoner who had forfeited his recognizance, and was afterwards surrendered by Ms bail, entered into a new recognizance for his appearance: Held, that the judgment upon the former recognizance could not be discharged until the prisoner appeared and took Ms trial, and was either convicted or acquitted; unless a compliance with the condition of the new recognizance became impossible by the act of God, or of the law, or of the obligee.</p> <p>The nature and history of the jurisdiction by which certain courts have authority to discharge a judgment entered upon a forfeited recognizance, or the recognizance when estreated, explained.</p>

Application to discharge a judgment entered on a forfeited recognizance. The application was made on affidavits showing that the recognizance had been forfeited in violation of an oral promise made to the prisoner’s counsel by the assistant district attorney to adjourn the trial, and that in reliance upon this promise the prisoner had not been in attendance in court when his case was called.

<p>A judgment entered on a forfeited recognizance will not be discharged on proof that the prisoner was subsequently surrendered by bis bail and a nolle prosequi entered, or that he was acquitted on trial, unless it also appears that the prosecution has not been deprived of proofs by the delay.</p> <p>The court will not accept as evidence on this point the certificate of the district attorney that the prosecution has not suffered by the delay.</p> <p>The court will require as evidence of this fact proof that the prosecutor, or the witnesses for the people, had notice of the subsequent arraignment and proceedings in court when the nolle prosequi was entered, or the prisoner acquitted, and a copy of the evidence upon which the indictment was found should be produced to the court, and the principal witnesses for the people, or the complainant, should be examined as to whether they were subpoenaed to appear in court when the prisoner was arraigned.</p>

<p>Under the power given by 2 R. S. 534, § 1, subd. 8, to courts of record to punish by fine and imprisonment any misconduct by which the rights or remedies of a party in a cause may be defeated, prejudiced, &c., “in all other cases where attachments and proceeding's for contempts have been usually adopted and practiced in courts of record,” the court may, on motion, punish by fine and imprisonment a person not a party to the suit for conspiring with a party to it, or with other persons, to putin incompetent and worthless sureties on appeal.</p> <p>For the purpose of fixing the amount of the fine to be imposed sufficient to indemnify the party for his actual loss or injury (under 2 R. S. 538, § 521), the court may, in such a case, take the amount of the judgment recovered against the surety in the undertaking as the amount of the party’s actual loss and injury.</p>

The action was brought to foreclose a mechanic’s lien on premises known as the Windsor Hotel property, situated on Fifth avenue, between 46th and 47th streets, in the city of New York.