Volume 5 — Duer's New York Superior Court Reports

Appeal by defendants from a judgment in favor of the plaintiff. The action was on a policy of insurance against fire, made by the defendants to the plaintiff, as mortgagee, and bearing date on the first of May, 1848. The insurance was for one year, and was renewed annually, and the last renewal was on the first of May, 1858. The insurance was for $8,000, on a building No. 80 Cliff street, in the city of New York, and the like sum on a building No. 123 Pearl street.

This action came before the court, on an appeal from a judgment entered on the report of John L. Mason, referee. The facts, as found by the referee, are as follows, viz.; The defendants were, in the months of July and August, one thousand eight hundred and forty-nine, and for some time previous and subsequent thereto, the owners of a bark or vessel called the Ophir, whereof one H. W. Ramsdell was the master.

This was an appeal, by tbe plaintiff Brahms, from a judgment at special term in favor'of the defendant. The nature of the action, and the questions involved sufficiently appear in the opinion of the Court.

Appeal, by plaintiff, from a judgment dismissing tbe complaint.

The action was brought to recover a sum which was alleged to be a balance due to the plaintiffs, from the proceeds of certain promissory notes, which had been deposited with the defendant as collateral security for the repayment of. a loan of $2,000. The notes, fourteen in number, were set forth in the complaint; they were signed by different makers, amounted in the aggregate to $2,614.73, and the whole amount, it was averred, had been collected.

Case upon a verdict for the plaintiff for $225, subject to the opinion of the court, on a case to be made to be heard in the first instance at General Term, with liberty to either party to turn the same into a bill of exceptions, or case containing exceptions, and •with liberty to the court at General Term to dismiss the complaint, if of the opinion that no action would lie on the facts proved.

This action was tried before Oh. J. Oakley, and a jury, on the 19th of March, 1856. . A verdict was taken for the plaintiff by direction of the Judge, for the sum of $175, subject to the opinion of the court, at general term, upon a case, with power to the court to reduce the verdict to $150, should it think proper. The defendants were partners, carrying on the express and forwarding business between New York and Philadelphia.

Case, upon the verdict of a jury for the plaintiff, subject to the opinion of the court at G-eneral Term. All the material facts are stated in the opinion of the court.

This was the submission of a controversy under § 372 of the Code. The parties to the submission were the surviving executor and trustee, under the last will and testament of James Whitty, deceased, and the three children, mentioned in his will, of his sister Mary Mooney. The following are the material facts stated in the written submission, signed by the parties.

Appeal on behalf of the defendants from a judgment entered upon the direction of a Judge for the sum of $507.72. The action was tried before the Judge without a jury, a jury trial having been waived in open court by the respective parties. By a written consent the two other causes of Otte and of Duerkop, against the company, were to be tried upon the same evidence, and at the same time. Judgments have been entered in these cases, and an appeal is taken in each.

<p>When a tenant is evicted before the expiration of Ms lease, he is thereby absolved from all liability to pay rent from the commencement of the quarter in which the eviction occurred. He may also recover the difference between .the value of his lease for the unexpired term, and the stipulated rent.</p> <p>If evicted at a season of the year when the expense of removing is greater than it •would have been at the expiration of the term, he may recover such extra expense.</p> <p>But he cannot recover, as a matter of course, any increased rent which he may he compelled to pay for other premises which he may hire for the purposes of the business for which he was using the premises from wMch he was evicted.</p>

<p>This was an action to recover the amount, with interest, of a deposit made by the intestate, F. Warhus, with the defendants. The- cause was tried upon the issues made by the pleadings, before Campbell, J., and a jury, in May, 1855.</p> <p>The following are the material facts established by the evidence upon the trial.</p> <p>The intestate was credited on the books of the bank with the sum of $198.68, including interest to the 1st of June, 1855, for several sums deposited by him with the bank.</p> <p>When the first deposit was made, a book called a pass-book, was delivered to the intestate, in which an entry was made by an officer of the bank of the sum deposited. The book also contained, printed in English, the regulations and by-laws hereinafter referred to, but the attention of the intestate was not directed to them, nor was any explanation given to him of their purport. The intestate, it was proved, was a German, incapable of reading, speaking, or understanding the English language, and he continued so ignorant until his death. When he made the deposit, he subscribed his name in a book kept in the bank, containing the regulations and by-laws of the institution. He was directed by a clerk to sign his name in the book, but was not told for what purpose his signature was required.</p> <p>After the death of the intestate, the plaintiff, in the month of August, 1854, went to the bank, and demanded payment of the whole sum standing to the credit of the intestate, and as proof of his authority to make the demand, exhibited the letters of administration that had been granted to him. He was asked by an officer of the bank whether he had the pass-book, and replied that he had not, and did not know where it was; but did not allege that any search had been made for it by himself or any other person. The letters of administration were then returned to him, and he was told, that without the book, the money would not be paid. A few days thereafter, he commenced this action.</p> <p>No evidence was given or offered upon the trial to show the loss or destruction of the pass-book.</p> <p>On the part of the defendants, the following by-laws were proved to have been duly made by the board of managers of the bank, and were read in evidence.</p> <p>By-law No. 8.—“No person shall have the right to demand any part of his principal or interest without producing the original book, that such payments may be entered therein.”</p> <p>By-law No. 11.—“ On making the first deposit, the depositor shall be required to subscribe, and thereby signify his assent to the regulations and by-laws of the institution.”</p> <p>These rules had been adopted several years before the intestate made his first deposit, and at that time, were, among others, printed in English and framed, and were hung up in four or five different conspicuous places in the banking-room. It had been the uniform custom of the bank to require their observance.</p> <p>The counsel for the defendants then called the attention of the Judge upon the trial to the following section in the act incorporating the bank:—</p> <p>“ Section 6.—Such deposits shall be repaid to each depositor when required, at such times, and with such interest, and under such regulations as the board of managers shall from time to time prescribe, which regulations shall be put up in some public and conspicuous place in the room where the business of the said corporation shall be transacted, and shall not be altered so as to affect any deposit which shall have been made previous to such alteration, until after personal notice thereof.” (Sess. Laws, 1804, 414.)</p> <p>It was then insisted on the part of the defendants, that they were entitled to a verdict in their favor.</p> <p>The Judge, however, directed the jury to find a verdict for the plaintiff, for the sum of $204.01, principal and interest, subject to the opinion of the court at General Term, upon the questions of law arising on the evidence.</p>

<p>An instrument, under seal, was executed, upon a sale made by the plaintiff to the defendants, by which the former sold to the latter all his interest in the manufacture and sale of porcelain teeth in the city of New York, with his stock on hand, and the good-will of the business. The plaintiff covenanted to instruct one of the. defendants in the art of manufacturing porcelain and incorruptible teeth, and to furnish him with his recipes therefor. The agreement also contained the following clause: “And the party of the first part will not carry on, or cause to be carried on by any person with whom he shall be interested, the manufacture of porcelain teeth, or impart the knowledge of manufacturing the same to any person, other than as aforesaid.”</p> <p>It was alleged, in the complaint, that the said art of manufacturing porcelain teeth, in which the defendant was to be instructed, was a secret of the plaintiff, and known to be such by the defendant.</p> <p>Held, on demurrer, that the covenant in question was valid, and not one in restraint of trade.</p> <p>Quere, as to the effect of one covenant, void, as against public policy, being united in the same instrument with a valid covenant ?</p> <p>Ruling of the judge at, Special Term, that, ordinarily, it will not vitiate the whole contract, not passed upon by the court at General Term.</p>

The cause came up on a verdict taken, subject to the opinion of the court, upon a case to be made, with a stay of proceedings, and to be heard in the first instance at the General Term. The defendant moves that the verdict be set aside, and a new trial granted, with costs to abide the event.

A verdict in. this cause was taken at the trial for the plaintiff, subject to the opinion of the court at General Term, on the single question, whether the presentment for payment of a note, on which the action was brought, was sufficient to charge the endorsers. The facts sufficiently appear, in the opinion of Mr. Justice Slosson.

Case, upon a verdict taken, subject to the opinion of the court at General Term, with liberty to turn the same into a bill of exceptions. The plaintiffs now move for judgment. The actions were upon four several promissory notes, against .the makers and endorsers. In one, the executrix of Henry Laverty is a party; in the other, she is not. A severance was made, as to the executrix, and the actions tried together, as against the other defendants, by consent.

<p>Motion for judgment, on a verdict taken, subject to the opinion of the court on the whole case, to be heard, in the first instance, at General Term, with liberty to direct a dismissal of the complaint, and with liberty to either party to turn the case into a bill of exceptions.</p> <p>The action was brought upon a policy of insurance, dated the 12th of April, 1854, for $2,000, executed by the defendants, in favor of Mark O’Brien, upon a stock of goods, in a store Ho. 216 Bowery. The policy was assigned, by O’Brien, to the plaintiff, after the fire, for the benefit of creditors. The fire occurred on the 13th of July, 1854.</p> <p>The policy is set forth in the complaint, and is in the usual form. It contains the clause, “that if the said insured, or his assigns, shall thereafter make any other insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to these defendants, and have the same endorsed on the said policy, or otherwise acknowledged by them, in writing, the policy shall cease, and be of no further effect.”</p> <p>The defence was, that, since the making of the policy, and before the fire, the said O’Brien, without the knowledge or assent of the defendants, procured a further and other insurance, upon the same property covered by this policy, in the St. Nicholas Eire Insurance Company, of the city of New York, to the extent of $1,000; that such policy was made, and issued, on the 23d of 'June, 1854; and that no notice was given to the defendants of such further or other insurance.</p> <p>Another ground of defence was, that, by the terms of the policy, it could not be assigned, without the assent of the defendants, manifested in writing; and that no assent had been given, to the assignment to the plaintiff.</p> <p>The assignment, which was produced in evidence, was of this and certain other policies of insurance, in trust, to pay certain scheduled creditors, fully or pro rata.</p> <p>The policy, and the loss and value, having been proven at the trial, as well as the subsequent policy, effected at the St. Nicholas Insurance Company, and no evidence of the assent of the defendant to such subsequent insurance being given, a motion was made foranonsuit,whichwasdenied,andsuohrefusalwasduly excepted to.</p>

The action was by the plaintiff, as holder and endorser of an accepted bill of exchange, against the drawer, upon protest of the same for non-payment, and notice to Mm. The bill was dated 30th August, 1847, at sixty-days’ sight, drawn by Jonas Phillips & Co., of New York, on Lawrence Phillips & Sons, of London, for £1,304 17s. 5d, to the order of the drawers, and endorsed by them and by Lysaght, Smithett & Co., of London.

Appeal bytheplaintifffromajudgmentdismissingthecomplaint. The action was against the sheriff of the city and county of New York, for the escape of a judgment debtor, imprisoned under an execution upon a judgment in favor of the plaintiff. The complaint demanded judgment for $1,804.84, the amount of the execution. The defence was, the voluntary return of the debtor before the commencement of the action.

One Augustus Hurd executed a mortgage to Henry S. Rosenkrantz, on the 17th of October, 1850, upon certain personal property, to secure payment of the sum of $671.88, the amount of his promissory note given to Rosenkrantz. This note, with the accompanying mortgage, was assigned to one James T. Lecte about the time of its date. The mortgage was duly filed on the day of its date.

Murray Hoffman, one of the justices thereof, on the issue of fact joined therein, and after hearing R. Reed, and others, of counsel for the plaintiff, and Wm.

<p>In a joint action by husband and wife for the recovery of land, no separate judgment can be given in favor of the wife and against the husband. They must recover jointly, or not at all.</p> <p>Hence, there can bo no recovery when it appears that the husband has debarred himself by his voluntary acts, from claiming the possession during his own life, when he is tenant by the courtesy, or when he is not, during the joint lives of himself and wife.</p> <p>The plaintiff, in an action for the recovery of land, is bound to show, either a prior actual possession, or a paramount legal title.</p> <p>In this case, all the Judges concurred in holding—</p> <p>1 That the plaintiff could not sustain the action upon the ground that the strip or. parcel of land demanded, and which was formerly part of a public street in the city of Hew York, had been allotted to them upon a partition between the heirs of G. Lombard, deceased.</p> <p>2. That the action could not be maintained upon the ground that Mrs. Bartow, as a co-heir of G. L, was entitled to an undivided tenth of the parcel demanded, even upon the assumption that G. L. was the owner, since it appeared from the evidence that her husband had consented to the proceedings by which the defendant had acquired his title.</p> <p>And lastly, that had all the heirs of G. L. united in the action, there could have been no recovery, since the evidence was wholly insufficient to show that either the title, or the possession, was ever vested in the ancestor.</p> <p>Hoffman, J„ was also of opinion that the title shown by the defendant, and which was derived from the corporation of the city, was valid and unimpeachable, upon the ground that the street, of which the parcel demanded in this action was formerly a part, and which had been regularly closed, was an ancient public street of the city, and that in relation to all such streets, it is a matter of fact,, and of legal presumption, that the fee is vested, exclusively and absolutely, in the corporation.</p> <p>Verdict set aside, and complaint dismissed with costs.</p>

The case came before the court upon a verdict found for the plaintiffs, by direction of the court, for the amount of the promissory note in question, and interest, subject to the opinion of the court at General Term, upon a case to be made, with liberty to either party to turn the same into a bill of exceptions, or special verdict. The case is stated in the opinion of the court.

12. A bill of exceptions was duly made. The action was for the unlawful taking from the defendant’s possession certain bricks, on or about the 7th of July, 1854; that such bricks belonged to the plaintiff, and were of the value of $350, and that the defendant converted the same to his own use.

Appeal by defendant from a judgment entered, upon the report of a referee, in favor of the plaintiffs, for the sum of $2,062.74, including interest and costs. The cause was before the court upon a case containing the pleadings, report of the referee, and proceedings upon the trial. The following are the pleadings and report. The proceedings it is deemed unnecessary to state.

<p>The defendant and two associates, owners of houses and lots on 21st street, entered into an agreement with the plaintiff, by which they severally bound themselves to pay to him the sum of $200, in consideration of his erecting on certain lots in the rear of those owned by themselves, three or more dwelling-houses, covering the entire front of his lots, of such character and description as to be ineligible for tenement-houses, or for any trade or occupation likely to be offensive or injurious to them. He erected four dwelling-houses, covering the entire front of Ids lots, but one of them was constructed with a carriage-way or passage, unconnected with the house, but opening on the street, and leading to the rear of the lot, so that stables or other buildings might have been erected, having a common entrance and exit by the carriage-way, on the rear of each lot.</p> <p>Held, that as the manifest object of the defendant and his associates was to prevent the erection on the plaintiff's lots of any building that might operate as a nuisance to themselves, and as the opening of the carriage-way would enable the plaintiff to erect such buildings, should he deem it expedient, it was a breach of the spirit and intention of his agreement, and, therefore, a bar to his recovery of the sum which the defendant had stipulated to pay.</p> <p>Verdict for plaintiff set aside, and order granting a new trial affirmed, with.costs.</p>

Appeal by plaintiff from a judgment at Special Term. The action was brought to recover the price of certain goods and merchandise, sold and delivered to the defendant Margaret, while a single woman. The complaint alleged that the debt was contracted in the city of New York, and became due on the 3d of October, 1850; and claimed judgment for its amount, $116r«-o, with interest from that day.

This action came before the court on a verdict taken for the plaintiffs, subject to the opinion of the court at General Term. It was tried before Ch. J. Oakley and a jury, in March, 1855. It was brought to recover damages, sustained by Mrs. Weed, one of the plaintiffs, while a passenger in the cars of the defendants, in consequence of the cars being left all night at a place between Obispo and Aspinwall.

The cause was heard before Duer, J., at Special Term, upon the pleadings alone, of which the substance is as follows:— The complaint, filed on or about the 31st May, 1855, prays for the foreclosure of a mortgage, executed and delivered on the 22d day of May, 1854, to secure the payment of the defendants’ bond, which, by the terms of the condition thereof, is payable on the 17th day of May, 1855, with interest in the mean time, payable half-yearly.

This action came before the court on an appeal from a judgment in favor of the plaintiff. It was tried before Oh. J. Oakley, and a jury, on the 19th of March, 1855.

<p>"Where a promissory note was given by an under-tenant for rent payable in advance, and came in due course of business to the hands of the plaintiff, for value, a dispossession of such under-tenant by the superior landlord, for the non-payment to him of the rent afterwards becoming due to him by his immediate lessee, is no defence to the plaintiff’s action on the note.</p> <p>Quere, Whether, where such dispossession took place after the under-tenant had himself made default, by not paying his note, the eviction would have constituted any defence to an action on the note by the lessee himself? It seems not.</p> <p>The court will not reverse a judgment on the report of a referee, upon an alleged erroneous finding of the facts, unless such finding be so clearly against evidence, or without evidence, as to create a reasonable apprehension of his bias, partiality, or mistake.</p> <p>It is not enough that the court see such reason to doubt the correctness of the finding, that they would have sustained the report if the referee had come to the opposite conclusion, or that the court think they should, upon the evidence, have found otherwise than he has done.</p> <p>Where, on the trial, a referee received evidence of the declarations of a third party, but with a proviso that such evidence should be struck out, if the defendant did not supply other proposed evidence bringing such declarations home to the plaintiff, by showing his assent thereto, or adoption thereof, and afterwards the referee, for the want of such supplemental evidence, struck out such declarations, and so reported.</p> <p>The court would not interfere with the report, unless the defendant excepted to such provisional reception of the evidence, or, at the close of the case, obtained a specific ruling thereon, and then excepted.</p>

This action came before the court, on a motion by the defendant, for a new trial. It was brought to recover the value of a billiard-table and two chandeliers. The plaintiffs- claimed title, under an assignment, made to them, on the 28th of November, by Garrett W. Ryckman, Jr., of all his property, in trust, for the benefit of his creditors. The property in question was originally owned by one Edward H. Hudson.

This action was brought against the defendants, upon a note, which, with its endorsements, reads as follows, viz,:— $1,484. New York, 3d August, 1853. Four months after date, we promise to pay, to the order of D. T. Youngs, fourteen hundred and eighty-four dollars—value received. (Signed) Caffe & Cutter. Laverty having died after the action was brought, Esther Ann Catlett, his executrix, was made a defendant.

The action was brought to recover $527.45 and interest, being seven-sixteenths of certain losses made by a copartnership, composed of the plaintiffs and defendant, and which, it is alleged, the defendant promised, in writing, to pay, in an instrument, executed upon the dissolution of the firm.

Motion, on the part of the plaintiff, for judgment, on a verdict in Ms favor, taken subject to the opinion of the court, at General Term. The action was brought for the delivery of the possession of certain goods and merchandise, consisting of wines, Cologne water, and linen pocket-handkercMefs, valued in the complaint at $1,000, wMch the complaint alleged that the defendant had wrongfully taken, and wrongfully detained.

Case upon a verdict in favor of the plaintiff, ordered to be heard at the General Term in the first instance, and judgment, in the mean time, suspended.

<p>Appeal, by plaintiff, from a judgment in favor of defendant, Segee.</p> <p>The action was against Segee, as the maker, and Frederick W. Greissenhainer, as the endorser, of a promissory note for $195.00, dated February 28, 1853, and payable, three months after date, to the order of Greissenhainer. The complaint (Contained the usual averments.</p> <p>The defendants answered separately. Each answer admitted the making and endorsement of the note, and set up as a defence the following facts.</p> <p>That the note was made for the accommodation of Greissenhainer, to whom it was delivered by Segee. That Q-eissenhainer endorsed the note, and put it in a desk in his office; that, during his absence, one H. Parker came there, took the note from the desk, and carried it away under a pretence of procuring the same to be cashed; that Parker passed, the note to one Oourtlandt Palmer, who gave no valuable consideration for it, but took it in payment of an old debt; that Palmer was the holder of the note when it became due, and that the plaintiff had not acquired the same for a good and valuable consideration.</p> <p>The cause was tried before Oakley, Ch. J., and a jury, in October, 1854.</p> <p>The following are the proceedings on the trial.</p> <p>The plaintiff produced and put in evidence the following note and endorsements, and proved the amount of principal and interest due by the face thereof was $192.24.</p> <p>$175. February 28th, 1853.</p> <p>Three months after date, I promise to pay, to F. W. Greissenhainer, Jr., or order, one hundred and seventy-five dollars—value received. Boltis M. Segee, 820 Broadway.</p> <p>(Endorsed) F. W. GIeissenhaiwer, Jr.</p> <p>(Also endorsed) C. Palmer.</p> <p>The defendant Segee called, as a witness, his codefendant, Frederick W. Giessenhainer, Jr., who testified, that Segee lent him the note, for his accommodation, and to enable the witness to raise money to take up a previous note of the witness, endorsed by Mr. Segee, which had been discounted in bank, and was then about to become due, and he never gave Mr. Segee any thing for it; that he, the witness, did not negotiate the said note, or pass it away, but, having endorsed it, he placed it with another note, in a drawer of a desk in his office, and never saw it afterwards, nor did he know, of his own knowledge, how it got into circulation or into the hands of the plaintiff.</p> <p>Cross-examined.—The witness added as follows: I left my office, where the desk was, at two o’clock; I returned the same afternoon, about four o’clock, and found the notes gone; I inquired of my clerk, Mr. Donaldson, what had become of them, and he said one Hiram Parker had come in, and, having opened the drawer and found the notes, took them away, and said he would get them cashed; I found fault with him for allowing Parker to take them; he said, that Parker said “ it was all rightI never delivered this note to Parker, for that or any other purpose; I went to look for Parker, but could not find him; I went to a place where he had kept an office, and to other places, but could find nothing of him, and shortly afterwards I found Parker locked up in Eldridge street jail; I went to the jail and saw Parker, and asked him for the note; he .promised to return it to me, and said he had not used it; from what he said, I inferred it was among his papers, somewhere else, and not there in the jail; I did not advertise the note, nor give public notice of its loss, because I expected to find him, daily, until I found him in the jail, and because, when I saw him, he promised to return it; I did not bring an action against him, to recover the note, for the same reason, and because it would be useless; he was already in jail, and I could do no more than put him there, and, besides, he promised to return it; Parker had been at my office several times; he was not a client; he had sold some lots to me, and I had paid him money on account of them, but I ascertained that he had no authority to sell them; I had known Parker two or three months, but had known him as a real estate broker for some years; he has never settled with me, in regard to the lots he professed to sell me; I borrowed this note from Mr. Segee, for my own use; I intended to get it discounted, for the purpose of paying a note then in bank, but, having received some money from another source, I put it into my drawer, after having carried it in my pocket three or four days; Parker had an office in the Fourth avenue, and I went there to look for him; I also went to the Sixth avenue, where he formerly had an office, but could not find him; I lived in Fourteenth street, near Fourth avenue, at the time, and Mr. Segee kept a store at the corner of Broadway and Twelfth street.</p> <p>Direct.—I received this note on the day of its date; Parker was utterly irresponsible, and generally known to be so; he left the country, on his release from prison, and I understand he has gone to California.</p> <p>Alexander Donaldson, a witness for both defendants, testified as follows: I am clerk of Giessenhainer, and have been so since February 1st, 1853; I have seen this note before; I cannot fix the exact time, but it was shortly after the date; Mr. Geissenhainer had it, and placed it in a drawer of his desk; whilst Mr. Geissenhainer was absent from his office, Hiram Parker came and sat down at Mr. Geissenhainer’s desk, and wrote something; he then opened the drawer where the notes were, and, after looking at them awhile, he got up to go out; I told him, “ I cannot authorize you to take away those notes,” but he said it was “ all rightI told him I had no authority to deliver them to him, but he repeated that it was all right, that they were intended for him, or something to that effect, and went out; when Mr. Geissenhainer came in, I told him what Parker had done, and he found fault with me; he said he would go and find Parker and get them back, and went out; I never saw any thing of Parker afterwards, until I was informed he was in the Eldridge-street prison; I then went to see him, by direction of Mr. Geissenhainer, and asked him for the notes; he said he had them and would return them, and I reported to Mr. Geissenhainer what he said; I understand Parker is gone to California, and that he went directly after he was liberated from prison.</p> <p>Cross-examined.—This witness added: that he knew Parker before, and had seen him several times in Mr. Geissenhainer’s .office, and knew him very well; upon this occasion, he sat at the desk and wrote, perhaps, ten minutes, before he opened the drawer and took out the notes; Parker was a real estate agent or broker, and I have heard him say that he sometimes negotiated bills and notes; he did not say that he was going to take this note to get it discounted, and I did not tell Mr. Geissenhainer that he said so; Mr. Geissenhainer thinks that I told him so, but he is mistaken; I did not, and could not have told him so; I inferred from Parker’s manner that he intended to get the note discounted, and may have told Mr. Geissenhainer that inference, but I have no recollection of it; Mr. Geissenhainer said he must go and hunt him up, and went out; I never saw Parker about town, after his liberation from Eldridge-street jail, but understood he was about a short time.</p> <p>Charles Gould, the plaintiff, being called by the defendants, testified as follows: After this note fell due, I purchased it for $162.50; it had been endorsed by Oourtlandt Palmer; I bought it of him, and paid him for it; it is exclusively my own.</p> <p>Oourtlandt Palmer, a witness for the plaintiff, testified as follows : In March, 1853, before the maturity of the note, I discounted it in good faith, for a valuable consideration, without notice or suspicion of any defence existing against it; I took it from Hiram Parker; he requested me to cash the note to oblige him, and told me that it was a business note which he owned, and which he had received from the endorser, Mr. Geissenhainer, for commissions on the sales of real estate, and I believed what he said; after some conversation, I told him I would cash the note, if he would deduct the interest till maturity, and satisfy, from its proceeds, a due-bill I then held against bim for about twenty dollars and interest; this he declined doing at that time; about two days afterwards, Parker called a second time, at my office, with this note, and then said he would comply with said terms; I thereupon took the note from him, gave bim my check for $145, which was paid at the bank, and cancelled his debt on the due-bill, which, with interest, came to a little more than the balance of this note; his first call, with the note, was March 6th, and his second call March 8th, and, both times, he came openly to my office, on Broadway, and remained at his ease there; afterwards I endorsed the note, and had it discounted, and, after receiving notice of protest, I took it up, and subsequently transferred it, through a friend, to Mr. Gould; on receiving the notice of protest, I called on Segee, and asked him what it meant; he then told me, that he gave the note to Geissenhainer, as a business note, and for business purposes.</p> <p>Cross-examined.—This witness added: The due-bill I discharged was an old one, but it was not seven or eight years old; it was not barred by the statute of limitations; it was not outlawed; I did not deliver the due-bill to Parker, for I had not got it with me; I never delivered it; I purchased this note as a business note; there is no understanding between me and the plaintiff, and I gave no orders for the bringing or prosecution of this action; when Parker came to my office, both times, he was alone; I did not notice a sheriff, or sheriff’s officer, in company with Parker, or in the neighborhood of him; I may be indebted to Mr. Segee; I believe he has a small bill against me; I did not tell his clerk that I would pay it, because I had a claim against Mr. Segee, on this note; I did not give that reason, but I said I would not pay it; Mr. Segee knows where I live, and has his remedy; I never called on Segee about the note, till after it was protested.</p> <p>No other evidence was given on the trial.</p> <p>The plaintiff's counsel requested the court to charge the jury, that the note, having been acquired by Palmer in good faith, and for a full and valuable consideration, before its maturity, and having been transferred, by him, to the plaintiff, the plaintiff was entitled to enforce the note, and have a verdict in this action, notwithstanding the alleged defence; and, also, that the plaintiff was entitled to recover the full amount of the face of the note, with interest.</p> <p>The court thereupon charged the jury, that if they were satisfied, from the testimony, that Palmer received the note, before maturity, and for a valuable consideration, and subsequently transferred it to the plaintiff, the plaintiff was subrogated to all the rights of Palmer, at least, to the extent of what he paid for it, and might recover upon it, notwithstanding that he received it after it became due. That, notwithstanding what had been said about the note, as a business note, it was clear, that the note was loaned, by Segee, to G-eissenhainer, for his accommodation, and had no vitality, until it was delivered to some one, as evidence of a valid subsisting debt. That, if the evidence for the defendant was entitled to credit, Parker had no legal title to the note, but his possession of it was tortious and fraudulent, though he could not be said to have stolen it. That the question, for the jury to pass upon, and upon which their verdict must depend, was, whether Mr. Geissenhainer had done what a prudent man should do, to reclaim the note, after he was informed that Parker had taken it, or whether he was guilty of such, laches, and neglect, as would authorize them to infer -that he assented to Parker’s possession of the note, for the purpose of negotiating it. That, in rendering their verdict, they had a right to discriminate, and render a verdict in favor of one defendant, and against the other. That, so far as Geissenhainer was concerned, testimony given by him must be laid out of view, in considering their verdict, and they must look into the other testimony, to see whether he had succeeded in establishing his defence, but that his testimony was competent for the defendant Segee.</p> <p>The court declined to charge the jury otherwise than herein contained.</p> <p>The plaintiff’s counsel hereupon excepted to that part of the charge which stated, that the question for the jury, on which their verdict must depend, was whether Geissenhainer had done what a prudent man should do, to reclaim the note, after he was informed that Parker had taken it, or whether he was guilty of such laches, and neglect, as would authorize the jury to infer that he assented to Parker’s possession of the note, for the purpose of negotiating it.</p> <p>The plaintiff's counsel also excepted to the refusal of the court above mentioned.</p> <p>And the court further charged the jury, that, if they found for the plaintiff, against either or both of the defendants, their verdict must be limited to the sum paid by the plaintiff for the note, with interest on the sum from the time of such payment; to which charge and instruction the plaintiff’s counsel excepted.</p> <p>The jury found, for the plaintiff, the sum of $177.66, against the defendant Giessenhainer, and in favor of the defendant Segee.</p> <p>To set aside which verdict, as to Segee, and obtain a new trial against him, and also to recover judgment for the debt and interest against him, and also to ask for an increase of the verdict against Geissenhainer to the sum of $192.24, a case was made, with leave to the plaintiff to turn the same into a bill of exceptions or special verdict.</p> <p>January 30.—The case and exceptions were now argued.</p>

The case came up, on the verdict of a jury in favor of the defendants, upon a case made, with liberty to turn the same into a bill of exceptions. The facts are folly stated in the opinion of the couryifvt S'^

This action came before the court on appeal, by the defendant, from a judgment in favor of the plaintiff. It was tried before Mr. Justice Hoffman, without a jury, on the 16th of February, 1856. On the 14th of May, 1849, Jas. A. Morse executed to Amos Hogins, a bond for $800, payable in one year, with interest, and he and his wife executed a mortgage upon real estate in Albany, N. Y., to secure the payment of the money. The mortgage was duly recorded.

This was an action by the plaintiff as endorsee, against the defendants as makers of a promissory note, dated Nov. 24, 1845, for the sum of $980.89, payable two months after date, to the order of Clarke & Co., signed by the defendants in their partnership name of Coggeshall & Tappin, and endorsed, without recourse, by the payees, to the plaintiff. The defence in the answer of Tappin, who alone appeared, was the Statute of Limitations and a release.

This action came before the court, on questions of law arising at the trial, and which were there ordered to be heard in the first instance by the General Term. It was tried before Mr. Justice Slosson, and a jury, in June, 1855.

The case came up for judgment upon a verdict for the plaintiff for $10,000, rendered before the Chief Justice'and a jury, subject to the opinion of the court at General Term. There was also a stipulation of the attorneys to the following effect: “It is agreed that a verdict herein be taken for $10,000, subject to the opinion of the court, and to be entered as a verdict for the defendant, on such opinion, for a like amount.

This action came before the court, on an appeal by the plaintiff, from an order overruling a demurrer, interposed by him, to the defendant’s answer. The issues of law, raised by the demurrer, were tried before Mr. Justice Hoffman, in December, 1855.

This was an action to recover damages, for the breach, by the defendant, of his agreement to purchase from the plaintiffs 3,000 shares of the stock of the Lindsay Mining Company. The defence was, that the stock had not been tendered to the defendant before the commencement of the action.

These actions were brought for the recovery of a total loss under three separate policies, made by the defendants on account of the plaintiff, upon the schooner Margaret Hopping, her cargo, and freight, on a voyage from New York to San Francisco. There were similar actions, also, upon separate policies, against the Union Mutual Ins. Co., and against the Astor Mutual Ins Co. By consent, these were to abide the decision of the above.

The action was brought to recover damages for the wrongful refusal of the defendants to accept and pay a bill of exchange, drawn upon them by one Ackley, in favor of the plaintiffs.

This action comes before the court, on an appeal by De Groot, from a judgment entered upon a verdict recovered against him, by the plaintiff. It was tried before Mr. Justice Slosson and a jury, the 30th of March, 1855.

This action came before the court on an appeal, by Mahony, from a judgment on a verdict rendered against Mm, in favor of the plaintiff. It was tried before Mr. Justice Slosson and a jury, on the 24th of May, 1855.

This was an action by the plaintiff, as endorsee, against the defendant Grouin, as maker, and the defendant Boeck as endorser, of a promissory note, for $1,800, dated 5th June, 1854,. and payable to the order of Boeck, four months after date. The complaint was in the usual form, and contained all the allegations necessary to charge the defendants.

On the 27th day of April, 1850, the plaintiff and defendant entered into a copartnership, for the purpose of conducting a dining saloon, or refectory, at 145| and 147 Bowery, in this city, which had been previously conducted by defendant. The partnership was to continue until the first of May, 1853. This action was commenced by plaintiff for the purpose of enforcing an accounting on the part of defendant.

This was an action for the recovery of the proceeds of the'sale of a large quantity of mess beef belonging to the plaintiffs, and sold by the defendants on their account. The sum claimed, as the proceeds, was $14,486.89, deducting $360, as the commission of the defendants.

The- action was brought to recover damages, against the defendants, for the wrongful conversion, by them, to their own use, of a vessel or brigantine, called “ The Bloomfield,” of which the plaintiffs claimed to be the legal owners, by virtue of a mortgage, executed and delivered to them, on the 23d of May, 1848, at Halifax, in Nova Scotia, by one J. G. D. McLellan, then the sole owner of the vessel.

This action came before the court on an appeal, by the plaintiff, from a judgment in favor of the defendant, upon a demurrer interposed by the defendant to the plaintiff’s reply to the defendant’s answer. The action was commenced on the 28th of December, 1850. The answer was served on the 27th of January, 1851. The reply on the 21st of February, 1851. The demurrer on the 17th of March, 1851. It was tried before Mr. Justice Duer, in October, 1851.

This was an action by the plaintiff, as endorsee, against the defendant, as drawer of a bill of exchange.

This action came before the court, on a motion made by the plaintiffs for á new trial. It was tried before Chief Justice Oakley and a jury, on the 21st of Hovember, 1855. After the evidence on both sides was closed, the Chief Justice dismissed the complaint, and the plaintiffs excepted to his decision. The case presenting only questions of law, an order was made at the trial, that they be heard in the first instance at the General Term.

This was an action against the defendant as sheriff, for the delivery of a stock of millinery, consisting of hats, bonnets, ribbons, &c., which the complaint alleged was the separate property of the plaintiff, and that the defendant had wrongfully seized and carried away. The defence was, that the goods were rightfully levied and seized under an execution against the property of Samuel J. Freeman, the husband of the plaintiff, and that they were in fact his property.

This was an action by the plaintiffs as endorsees of a bank check, payment of which had been refused, against the defendant, as drawer. The check, as set forth in the complaint, was dated on the 26th of February, 1855, drawn on the Bull’s Head Bank, for the sum of $131, payable to P. McAleer or order, and endorsed by him to the plaintiffs.

Case made upon a verdict for the plaintiff, taken subject to the opinion of the court at General Term, the cause to be heard there in the first instance, and judgment in the mean time to be suspended. The facts of the case, and the course upon the trial, are stated in the opinion of the court.

The action was brought by the plaintiff, as landlord and owner in fee, of certain premises in the city of New York, leased by him to the defendants, chiefly, for the recovery of arrears of rent alleged to be due. The 5th subdivision of the complaint, however, set forth a distinct cause of action, in the following words: “Fifth.

The action was brought to recover damages against the defendants, as the landlords and owners in fee of a certain lot of land and dwelling house, and its appurtenances, in the city of New York, for a personal injury alleged to have been sustained by the plaintiff, from the negligence of the defendants, as such landlords and owners, in the erection or construction of a flag stone on the sidewalk of the premises. The answer denied the negligence charged.

Every fact is stated in a case made and signed by the respective attorneys, which is as follows:— This cause was tried before Hon. Thomas J. Oakley and a jury, May 18th, 1855. The action was for taking the goods and chattels of the plaintiff out of his possession, alleged by the complaint to have been taken on the 20th day of January, 1855, the plaintiff claiming them as exempt from execution.

Case upon a general verdict, rendered for the plaintiff, subject to the opinion of the court, on the questions of law reserved, to be argued, in the first instance, at the General Term, and judgment, in the mean time, to be suspended.

The action was brought to recover damages for the wrongful seizure, taking, and carrying away by the defendant of three coaches belonging to the plaintiff. Judgment was demanded for $1,350, besides costs. • The answer denied the possession and ownership of the plaintiff, and justified the seizure under an execution against the goods of one Charles Hannan, who, it was alleged, was the true owner of the property.

This action comes before the court on a verdict taken, subject to the opinion of the court, at General Term, and upon an order made at the trial, that the questions of law which it presents, should be first heard at the General Term. It was tried before Mr. Justice Slosson, and a jury, on the 22d of November, 1854.

The case was submitted, without an action, under the 372d section of the Code, and is as follows:— William Nelson, William Nelson, Jr., and Aaron Cohen, were, at the several times hereinafter mentioned, owners of the ship or vessel called the Pacific, sailing between the port of New Orleans, in the State of Louisiana, and the port of New York, in the State of New York, and employed in the carriage of goods and chattels, for reward, between those ports.

This was an action to recover damages for the wrongful taking down, by the defendants, and their servants, of a party-wall, which was alleged to be the common support of a building occupied by the plaintiff, under a lease, and an adjoining building, owned by the defendants.

Appeal, by defendants, from a judgment in favor of plaintiff for $979.43 damages and costs.

The action is brought by the plaintiffs, as administrators, with the will annexed, of Francis O’Neil, deceased, to recover the sum of $1,397.97, and interest from February 17th, 1853, alleged to be due to the estate of said O’Neil, from George J. Smith, the defendant, a former administrator, ad colligendum, of the estate. The action is upon the bond given by said Smith, upon his appointment as such administrator, with the other defendants as his sureties.

<p>The custom, in the port of New York, upon the sale of grain is, that the purchaser selects a measurer, and the measurer so selected is appointed hy the board of measurers to perform the duty.</p> <p>Held, that where the measurement is, in fact, made by a measurer appointed by the board, the custom is substantially complied with, and it is immaterial whether the measurer is selected by the seller or purchaser.</p> <p>Held, that when the quantity sold has been ascertained by such a measurement, and the purchaser has an order for the delivery of the grain, upon the storekeeper, in whose custody it is, the delivery, so far as the seller is concerned, is com píete.</p>

This was an action by the plaintiffs, as endorsees, against the defendants, as acceptors of two bills of exchange for $10,000, eách drawn upon them by one Aaron A. Kagy. The bills were in all respects alike. They were dated on the 23d January, 1854, and were payable thirty days after date, to the order of Arnold Dun-levy & Co., by whom they were endorsed to the plaintiffs.

<p>All the material facts are stated in the opinion of the court.</p>

Appeal by defendants from a judgment in favor of the plaintiff for $555.19, damages and costs. The action was on a policy of insurance against fire, on the goods of the plaintiff. The complaint averred a loss by fire, to the amount of $600, for which sum, with interest and costs, judgment was demanded.

This action comes before the court on a motion, by the plaintiff, for the appointment of a receiver of the steamboat Alida, her tackle, &e. The motion was made upon the complaint and affidavits. Held: under various assignments, by the defendant, Abraham Yan Yechten, and he has advertised the vessel for sale. 2. Nicholas Elmendorf having become the owner, mortgaged the vessel to one Prosper M. Shaw, and the defendant, on the 25th of February, 1854. 3.

<p>A complaint -will not he Bet aside, although neither that nor the copy served was folioed as required hy rule 41, if retained twelve days, without objecting to the defect. Such acceptance, and delay to object, waive the defect.</p>

The plaintiff, a judgment creditor of the defendant, obtained an order supplementary to execution, in the usual form, dated the 18th of October, 1854. The defendant appeared and was examined, and on the 15th of February, 1855, a receiver of his property was appointed.

order made by Mr. Justice Hoffman, denying a motion, on. the part of.the defendant, to vacate an order of arrest, but reducing the- sum in which the defendant was to be held to bail from ninety to thirty thousand dollars. Both parties-appealed; the plaintiff on the ground that the bail ought not to have been reduced; the defendant, that he ought to have been wholly discharged.

<p>Appeal by the defendant from an order made by Bosworth, J., discharging an order on the plaintiff} to show cause why the authority for commencing this action should not be produced, and filed with the clerk of this court, under the oath of the party, who may claim to be so authorized; and also why all instructions to continue or discontinue the same, should not in like manner, be produced and filed; and why, upon default in the premises, or the absence of authority to commence or continue the prosecution of this suit, the same should not be dismissed, or the defendant have such other relief as may be just.</p> <p>The order to show cause was founded upon an affidavit of the defendant, stating, in substance, that since this suit was commenced the republic of Mexico had caused another action for the same subjéct matter, to be commenced against him in the said republic, and that the same was then depending; and that he had reason to believe, and did believe, that this suit was prosecuted against him without authority from the republic. The affidavit also stated that the defendant was informed and believed that the suit was brought and prosecuted against him by the direction of the minister-plenipotentiary of the republic.</p> <p>The Judge below, when he discharged the order, delivered the following opinion:—</p> <p>Bosworth, J. When a respectable and responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not. (Denton v. Noyes, 6 J. R. 296.)</p> <p>When no circumstances are shown calculated to raise a suspicion of fraud, or of an attempt to impose upon a party, or to abuse or pervert the process of the court, even the mere fact of authority will not be investigated. In this case the fact of actual authority having been given is sworn to. The position of the party to the plaintiffs and to the defendant, in this transaction, to whom the authority was given, and by whose orders the action was brought, is such as to repel all suspicion or presumption that no such authority has been given, as he swears he has received.</p> <p>There is nothing opposed to the positive affidavit of the minister-plenipotentiary of the republic of Mexico, but the affidavit of the defendant, that he has reason to believe and does believe, that this suit is prosecuted against him without authority from the said republic.</p> <p>Ho fact is stated on the part of the defendant as the basis of his belief, nor are any of the reasons of the belief mentioned.</p> <p>Whether the court would require evidence of the authority to be filed before entry of the judgment, or at the time of entering it, as a greater protection to the defendant, it is unnecessary to decide now. ISTo facts are stated to render it the duty of the court to require it to be filed, in the present state of the action.</p> <p>Flo satisfactory reason is assigned for requiring any instructions that may have been given, as to .continuing or discontinuing the action to be filed. To make such an order would be equivalent to requiring an attorney to disclose the orders given him, as to the conduct of the suit, and the contingencies on which he should abandon it.</p> <p>ISTo authority is cited in support of such a practice, and an attempt of the court to interfere in that manner, with the ordinary course of litigation would-naturally be viewed with some suspicion.</p> <p>The mere fact of the commencement of an action in another state, after this was brought, and its pendency, is no reason for ordering it to be discontinued. It is not averred that the defendant has been personally served with process in that action, or that he has ever appeared in it.</p> <p>It is not averred that he has. been arrested in it, or that any of his property has been attached by any proceedings taken in it, or that he has any that can be reached, by any proceedings that can be taken in it.</p> <p>If a judgment should be rendered in that action by which the rights of the parties would be concluded before the one pending here is tried, this court would permit the judgment there to be pleaded puis darrein continuance, or by supplemental answer.</p> <p>If the two suits should proceed pari passu, to judgment and execution, it would order the one recovered.here satisfied, on payment of the one recovered in Mexico.</p> <p>So it would make any order proper, and adequate to protect the defendant, on a state of facts being presented that called for its interference.</p> <p>Mothing is shown on this motion rendering it necessary or expedient for the court to make any order interfering with the ordinary modes of procedure in such an action. The motion must therefore be denied, with seven dollars costs.</p>

Judgment was rendered in favor of the defendants for their costs of the action. The plaintiff appealed from it to the General Term. Instead of giving an undertaking on sueh appeal, he deposited with the clerk, the sum of $250. The judgment was affirmed at General-Term, and from the latter judgment he appealed to the Court of Appeals.

This action brings at issue, and the issue brings issues of fact only. It was noticed to be tried before the court and a jury, and placed on the calendar; when it was reached in its order, the defendant did not appear. The plaintiff obtained an order, which recited the defendant’s failure to appear, and directed the plaintiff’s damages to be assessed by a jury before the sheriff.

The plaintiff gave notice that he would move on the 10th of March, 1856, for judgment, on account of the frivolousness of the answer. The answer set up new matter, which was claimed to constitute a? defence. On the 8th of March, 1856, and within twenty days after the answer had been served, the defendant amended his answer, and served a copy of the amended answer. That fact was shown as being an answer to the motion.

<p>A complaint containing several causes of action, all of which belong to one of the classes named in section 16*7 of the Code, and affect all of the parties to the action, and do not require separate places of trial, cannot be demurred to, on the ground that such causes of action are improperly united, merely because they are not separately stated. In such a case the remedy is a motion, that the complaint be made more definite and certain, so as to show on its face, clearly and precisely, what distinct part of it is relied upon as constituting a separate cause of action.</p>

<p>When an answer sets up, among other defences, a prior action pending for the same cause, and on a reference of the latter issue by consent, the referee has reported upon it in favor of the defendant, the court will order the complaint to be dismissed without a trial of the other issues, if no valid exceptions be taken to the report of the referee.</p>

<p>Whether the costs of a plaintiff “ for all proceedings before notice of trial,” shall • be $7 or $12, depends solely apon the nature of the action, .and not at all upon the fact whether an answer is, or is not put in. (Code, section 307, sub. 1.)</p> <p>After the cause had been two terms on the calendar on the plaintiff’s notice, he moved out of court on a five days' notice, and obtained judgment, on account of the frivolousness of the answer. Held, that .he coul4 not tax $10 a term for , .either of those terms.</p>

<p>The parties were divorced in 1846, and the amount'of the plaintiff’s permanent alimony fixed, without prejudice to her right to move to have it increased, on a state of facts, making such increase proper.</p> <p>She now petitions for an increase, on the grounds, that the defendant’s circumstances have been much improved since the divorce was decreed, that her’s have not been materially, and that her expenses have been increased by reason of her contributing to the support of a person named in the petition. But it does not allege, that her own means are not abundant for her own support.</p>

<p>The complaint states a sale and delivery by the plaintiffs to the defendant of liquors, for cash, at an agreed price of $890.20, and claims a balance due of $208.06.</p> <p>The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay, the'price named, and averred that they were worth about $200, and no more. It then proceeds thus:—</p> <p>“ And this defendant further says, that on or about the 20th of October, 1856, the said plaintiffs, without the knowledge or consent of the defendant, took and appropriated to their own use eighty-seven and a half gallons of whiskey, belonging to this defendant, of the value of $2.75 per gallon, which this defendant claims to offset against the plaintiff’s claim herein, and also five gallons of gin, worth.the sum of $1.50 per gallon, and this defendant denies that he is indebted to the plaintiffs in any sum or amount, wherefore he demands that the complaint herein be dismissed, with costs.”</p> <p>The plaintiff moves to strike out this part of the answer, as “irrelevant and redundant,” because it is not matter constituting a counterclaim, or a defence, either total or partial.</p>

This action comes before the court on a demurrer by Turney to the complaint, assigning the grounds that several causes of action are improperly united, and that it does not state enough to constitute a cause of action as against him. The complaint shows that Wandle bought real estate of Coman, which the latter conveyed to the- former by a full covenant warranty deed.

This action comes before the court on a demurrer to the complaint. The complaint states that E. Spies is a married woman; that defendant, being a common carrier, undertook to carry her and her baggage safely from San Francisco to New York; that the baggage, which was her separate property and paraphernalia, was stolen and damaged while in the custody of defendant and its agents, and claims to recover the damage consequent thereon.

The defendant moves for a bill of the particulars of the plaintiff’s demands. The parties were partners, and dissolved, agreeing that Depew should close the business of the firm. He brings this action against Leal, to obtain an accounting, and a judgment, that either should pay to the other any sum, in which he might be found indebted.

<p>"When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and also justifies, by alleging that the plaintiff was guilty of the misconduct which the words impute, the court will not, on motion, direct one of the defences to be stricken out, nor coerce the defendant to elect between them, and rely on one alone. Especially, this will not be done, when the defendant swears that the answer is true, for it may be true, that he did not speak the words charged, and that the plaintiff committed the offence they impute. His right to justify does not depend upon his admitting the speaking of words which he never did speak. The right is absolute to set up as many defences as he may have.</p>

<p>In an action against several, for the specific performance of their joint contract, to . purchase real estate of the plaintiff, and secure a part of the price by their bond and mortgage, payable at a future day, all of them must be served with the summons, or appeal in the action, to enable the court to render a judgment'which will be a complete determination of the controversy.</p> <p>If brought to trial, upon the answers of a part of the defendants only, when the others have not been served with process, or appeared in the action,' the court will not permit the trial to proceed.</p>

<p>A complaint upon a promissory note against maker and endorser, is not sufficient, under section 162 of the Code, if it fails to aver that the maker made the note, and that the -endorser endorsed it, although the complaint contains a copy of the note and of its endorsements.* An averment that a note was -protested, is not equivalent to an averment that it was duly presented for • .payment to the maker, and payment was refused. (3d Abbott, 253.)</p>

On foreclosure of mortgage—the cause was heard upon pleadings and proofs—and the case, on the part of the plaintiff, as stated in the complaint, being proved, it was insisted, on the part of the defendant, that the provisions in the mortgage designed to secure monthly payments and fines, and the disposition of any surplus from the sale of the mortgaged premises were illegal and void, and that he was entitled to be relieved, and to have the mortgage cancelled, upon the…

<p>In an action against a city municipal incorporation, to recover damages, sustained in consequence of a grating over an area in a sidewalk being in a defective or unsafe condition, it is not enough to entitle the plaintiff to recover, to prove that the covering was insecurely fastened at the time of the accident, and that by reason thereof, and without fault on his part, he was injured. Notice to the defendant of the defect, or negligence of duty, in not ascertaining, and remedying it, must be shown.</p>

This action comes before the court, on a demurrer to the complaint, in an action to foreclose a mortgage.

This action came before the court, on the trial thereof, having been brought to foreclose a mortgage. The mortgage, in this case, was given to secure the payment of the monthly dues of a member of the association.

<p>In .an action against several for a debt due by them as partners, one of them set up as a counter-claim, a claim for damages sustained by him, by alleged misconduct of the plaintiffs, in the management of his affairs under an agency formerly held by them from him.</p> <p>ffeld, 'that this counter-claim was bad, because—</p> <p>1. If the demand were regarded as based on contract it was a fatal defect, that there was no mutuality between the two contracts, and such demand was due to Bloomer alone.</p> <p>2. If it were deemed to be based upon tort, then it was not connected with the subject of the plaintiffs’ action.</p>

<p>When a defendant sets up, as a counter-claim, a note made by the plaintiff, payable to a third person, and endorsed to the defendant, the answer must aver such endorsement to have been made before the action was commenced.</p> <p>The fact that the answer states such note to be a “ counter-claim and cause of action existing against the plaintiffj at and before the commencement of the action,” is not enough to show that it previously belonged to the defendant. The plaintiff has a right to require the answer to be so full and precise, that he may know whether the defence is to involve a disputed question of fact, or to depend solely on a question of law.</p>