Volume 5 — Jones & Spencer's New York Superior Court Reports

The action was brought, against defendant as trustee-of the Lippiat Silver Plating Company, to recover the-amount of an alleged indebtedness from said company for money loaned on March 24, 1871, and for work, labor and services as superintendent, from March 20 to June 8, 1871. The amount claimed as a loan'was three hundred dollars, and that for services three hundred and twenty-six dollars.

Appeal by defendant from a judgment entered in favor of the plaintiffs, upon the report of a referee. The action was brought to recover a balance due upon an account for goods sold and delivered under a special contract.

Exceptions ordered to be heard at general term, and appeal from a direction to the jury to find a verdict. The action was brought against the late Sheriff Lynch for> taking and converting goods claimed by the plaintiff as owner, and upon the death of said sheriff it was continued against his administratrix.

<p>Appeal from order denying plaintiffs’ motion to set aside judgment dismissing their complaint for irregularity.</p>

<p>Motion to dismiss plaintiffs’ appeal from judgment.</p>

Appeal by the plaintiff, from an order at special term, granting a new trial. The facts and exceptions appear fully in the opinion of the court.

Appeal by defendant from a judgment entered upon a verdict, and an order refusing a new trial. The facts in the case appear in the opinion of the court.

The plaintiffs sued to recover money they had deposited with the defendant. The defendant answered, that the money so deposited had been paid out from time to time on the checks of plaintiffs, and that they had at various times rendered their accounts and vouchers for such payments to the plaintiffs, who made no objection to such accounts, and pointed out no errors.

The summons in this action was for relief, and the complaint was as follows : “Thomas W. Ladd, the above named plaintiff, by Elias J. Beach, his attorney, complaining against James Arkell and William F. Tufts, the above named defendants, shows to the court as follows: ‘1 First.

Exceptions ordered to be heard at general tenr. This action was brought by the plaintiff-, a private detective or police officer, to recover damages of the defendant, for publishing an alleged libelous article in the ¡New York Times newspaper.

<p>The plaintiff and defendant entered into an agreement in writing, dated June 3,1871, for the purchase and sale of certain lots of land on Eleventh-avenue and One-Hundred-and-Twenty-Seventh and One„-Huñdred-and-Twenty-Eighth-streets, in New York city, by the terms of which plaintiff was to deliver to defendant a deed in sixty ■ days from date of agreement. The deed was to be delivered on August 3, 1871, and the property was to be sold “free from all incumbrances." When the parties met to pass the title the defendant claimed that there was an assessment on the property for opening Riverside Park, amounting to one thousand six hundred and seventy dollars. Plaintiff denied her obligation under the contract to pay the same, and an adjournment was had. At the adjourned meeting plaintiff delivered deed, and defendant retained from the purchase money one thousand six hundred and seventy dollars.</p> <p>It appears from the papers that previous to the delivery of the deed there was no question raised as to the actual existence of the as- • sessment or lien, or as to its validity.</p> <p>Between the date of the contract and the passing of title the supreme court had made two orders, dated July 11, and July 21, 1871, respectively, purporting to confirm the report of Riverside Park commissioners, and consequently the assessment of one thousand six hundred and seventy dollars appeared upon the face of the title bri August 7, when the deed was to be delivered. Under these circumstances plaintiff delivered the deed, and defendant retained one thousand six hundred and seventy dollars, for the purpose^qf liquidating the supposed lien.</p> <p>Subsequently the orders above referred to were vacated, reversed and set aside by the general term of the supreme court, and new commissioners of assessment and-award in the Riverside Park matter appointed. Defendant, when he went to pay the supposed assessment of one thousand six hundred and seventy dollars, learned that it had been set aside, and did not pay the same.</p> <p>About a year after the appointment of the new commissioners they made their report, which was confirmed August 22, 1872. They assessed the property in question for two thousand one hundred and ninety dollars, and the defendant, owning the property at that time, paid the assessment.</p> <p>Plaintiff brings this action for money had and received by defendant, and seeks to recover the sum of one thousand six hundred and seventy dollars, the amount-retained from the purchase money to pay, what was supposed by the parties to have been an existing lien and incumbrance.</p> <p>Held l>y the court. The defendant received the money in question as security for; himself against loss, which might occur to him, by reason 1 of a debt of the plaintiff, being enforced as a lien against the property, about to be transferred to him by the plaintiff pursuant to the contract.</p> <p>The case is the ordinary one of a purchaser of real estate receiving money to pay a Ren for taxes or a judgment, which appears in the record, as a Ren against the property of the seller and received on the understanding between the parties, and the implied promise in law, on the part of the purchaser, to return the money to the seller, in case it appeared that there was no such lien, and the money paid to, or received by, the purchaser, for the payment of the lien, should not be paid by him.</p> <p>The extinguishment or cancellation of this lien, and the admitted fact that the purchaser never paid the assessment, and could not pay it, because of such extinguishment, gives to the purchaser the right to recover the amount paid to, or reserved by, the purchaser on account thereof.</p> <p>Upon another view of the case considered by the court, there was never a lien on these premises for the said one thousand sic hundred and seventy dollars. If the parties supposed there was, it was a mistake of fact. The defendant has obtained the plaintiff’s money without consideration, and not as a gift, but under a mistake.</p> <p>For a full review of the law and proceedings in the matter of assessments in New York for public improvements, and the cases relating thereto, see the opinion of the court.</p>

Upon a judgment for dismissal of the complaint, exceptions ordered to be heard at the general term in the first instance. The facts and exceptions in the case appear fully in the opinion of the court. The plaintiff proved a good cause of action against .defendants, and the court clearly erred in dismissing the complaint. II».

The parties made a written agreement, the plaintiff to sell and convey to the defendant certain premises in this city.

<p>I. Broker Acting for both Buyer and Seller.</p> <p>1. If there is no fraud or concealment, and each party is aware that the broker is acting for the other as well as for himself, the execution by the broker of bought and sold notes, and the delivery thereof to the respective parties, constitutes a valid contract between them.</p> <p>So also,</p> <p>3. Ratification.—If one of the parties, not knowing at the time he employed the broker, that the broker was employed by the other, receives the bought or sold note (as the case may be) showing that the broker was also employed by and acting for the other party, and he makes no objection on the ground of any want of authority on the part of the broker to bind Mm, but repudiates the contract for other and different reasons, he ratifies the act of the broker done in his behalf, and the contract is binding on him.</p> <p>3. Frauds, Statute of.</p> <p>a. The bought and sold notes signed by the broker under such circumstances satisfy the statute, and take the case out of its operation.</p> <p>DC. Objection.—Trial.</p> <p>1. An objection not talcen at the trial cannot be raised, on appeal.</p> <p>]H. Superior Court,—Jurisdiction of, Under Chapter 339 of the Act of 1873.</p> <p>1. Under the decision of the court of appeals in Landers v. Staten Island R. R. Co., 14 Abb. If. S. 346,—Held, that said act, so far as it undertook to extend the territorial jurisdiction of the superior court, was unconstitutional; that is to say, the legislature had no power to extend the jurisdiction of the court to actions in which one or more of the defendants neither resided nor were served with summons in»the city of New York, beyond the jurisdiction which it possessed in that regard at 'the time of the adoption of the sixth article of the constitution at the election held on November 3, 1869. a. The various statutes conferring jurisdiction on the court considered, and the case of Landers v. Staten Island B. B. Co. discussed.</p> <p>BUT HELD,</p> <p>Waiver.—A voluntary appearance without raising the question of want of jurisdiction by either demurrer or answer waives the objection.</p>

The complaint alleged that the defendants were the owners of a “tug-boat,” which was employed by them in towing vessels. That in August, 1871, such tug boat was engaged in towing the bark “Louis” down the Bast river, and that by the negligence of the persons in charge of the tug boat, the bark was driven against, and suffered to come in collision with, the plaintiff’s wharf or pier, injuring it to the amount of one thousand dollars.

The complaint alleged the partnership of the defendants in the business of building docks, and that they employed the plaintiff to make drawings and calculations of estimates in such business. The defendant Hardenburgh denied generally. The testimony as to actual partnership, or as to whether the defendants held themselves out to the plaintiff as partners was conflicting.

<p>I. Vessels.—Lien on, under Statute Laws.—Act of 1862,</p> <p>Chapter 482.</p> <p>1. Oonstituüonality of the act of 1862. a. That act, so far as it attempts to give a lien on vessels for money due on a maritime contract, is unconstitutional.</p> <p>1. This, although there may be no maritime lien in rem for the money due on the contract.</p> <p>5. But in respect to demands not in their nature maritime, the courts can proceed and enforce their collection under the act referred to.</p> <p>II. Contract Maritime, What Constitutes.</p> <p>1. Where work was done and materials supplied for repairing and furnishing for sea a domestic vessel in and to the State of New York, and owned by persons residing in that state, the work being done and materials furnished while the vessel was lying in the port of New York ; but she was a sea-going vessel engaged in foreign commerce,</p> <p>Held,</p> <p>That the work was done and materials supplied under a maritime contract, and no lien could be obtained, or proceedings had in a State court, under the law of 1862. a. This, although the work was done and materials supplied at the home port of the vessel.</p> <p>HI. Conflict of Decisions Between the United States Courts and the Court of Appeals.</p> <p>1. The inferior courts of this State are bound to to follow the deci-</p> <p>sions of the court of appeals.</p> <p>a. This, although the decision of the court of appeals is subject to review in the supreme court of the United States.</p> <p>1. The fact of such power of review being vested in the supreme court of the United States does not abate the authority of the court of last resort in this State, over inferior tribunals.</p> <p>2. The court of last resort in this State having laid down and estab-</p> <p>lished the propositions contained under the first and second general divisions of this head-note, this court is bound to follow its decisions, although the United States courts have decided directly to the contrary.</p> <p>IV. Bond Given on Attachment Issued under said Act on 1862.—When no Recovery can be had thereon.</p> <p>1. When the attachment proceeding is void, there is no force in the suggestion that the action,being upon the bond, is inpersonam and not in rem.</p>

The appeal was decided in December, 1873, affirming a judgment dismissing the complaint. The action was upon a contract for work to be performed, which required the plaintiff to obtain an inspector’s and water purveyor’s certificates. The complaint was dismissed on the ground, that the plaintiff had failed to produce such certificates, or excuse their non-production.

The action was tried by a referee who made the following findings: PACTS. “ The defendants were copartners in business at the city of New York from June 1, to December, 1869, under the firm name and style of De Long & Co. On or about September 20, 1869, the defendant De Long, in the said firm name, made and executed the promissory note mentioned in the complaint, bearing date on the day and year, and at the place last mentioned, whereby the defendants promised to pay, ninety…

The action was brought against Christopher Keyes, as maker, and Patrick Flannery, as indorser of a promissory note. Both defendants were served with the summons and complaint on July 31, 1873. The time to answer, having been extended by the court, expired September 11, 1873, when the plaintiffs took judgment by default against both defendants.

Case of a verdict directed by the court below for plaintiffs. Exceptions directed to be heard in the first instance at the general term. On March 26, 1872, the plaintiffs, who were doing business in the city of New York, as bankers, under the firm name of Allen, Stephens & Co., received by mail, for collection, from one of their correspondents, the Capital City Bank of Des.

The action was brought against the defendants as common carriers for hire, to recover damages for injuries sustained by plaintiff, a married woman, in getting out of an omnibus of defendants’ line, caused by the sudden starting of the horses. The jury found a verdict of five thousand dollars. Defendants appealed from the judgment entered upon the verdict, and from the order denying their motion : 1.

The action was commenced as one of interpleader. There were various and conflicting claims litigated to ■ different portions of the fund in controversy. The fund consisted of the amount of a judgment recovered by Robert Jardine against the mayor, aldermen and commonalty of the city of New York, and collected by the plaintiff under an arrangement made with Jardine, by which plaintiff had acquired an interest therein.

<p>In September, 1864, the plaintiff made a stipulation in this action-to file additional security to the amount of five thousand dollars, on his appeal from an order entered September 19,1864. Said security to be filed and served before the argument on appeal. The stipulation was not fulfilled and defendants made no motion nor took any action to enforce it until 1871.</p> <p>Held, that because of the lapse of time the court has no power to make an order now (Dec. 1873), that the plaintiff shall carry out his stipulation. s</p>

<p>The principal decision and direction of the court below to which the plaintiff excepted, was substantially as follows: “ On the trial, at the close of .the case, defendants’ counsel moved to dismiss the complaint.</p> <p>“1. Because plaintiff never had any title to the property in question (real estate).</p> <p>“ 2. If he ever had any title it was a mere naked legal title—paper title—an equitable title being in the city of New York.</p> <p>“ 3. That there is no evidence of fraud.</p> <p>“ 4. That the acts of the parties have located the land excluding the locus in quo, and that the evidence showed a practical location of these lands, and an adjustment of the lines'in accordance with the claims of the defendant.”</p> <p>The judge granted the motion and gave the following direction to the jury, viz:</p> <p>“ After looking carefully over the evidence that has been given on behalf of the defendants, and which is uncontradicted, and seems to be beyond dispute, I think that the defendants have sufficiently shown that there was a practical location of lot No. 143, described in the deed from the corporation to Wagstaff, by which practical location the strip now in question was excluded, and the same width of street on the north of the lot was taken in, and that there was an acquiescence on the the part of all the parties interested in such practical location for more than twenty if not more than twice twenty years.</p> <p>“I think the corporation has sufficiently shown that an adjustment of the boundaries took place in 1836 or 1837, and although that adjustment was not followed up by an exchange of deeds or releases, that it was followed up by a continuous, uninterrupted possession on the part of Woolley and his immediate grantees and assigns, and that such occupation has been maintained ever since, and Woolley and his assigns have had the benefit of a strip of.land on the north of his lot, which was more valuable then and is more valuable now than the strip in question in this action. Either ground, in my judgment, is sufficient to estop the plaintiff from asserting his title in any action, and a ground likewise sufficient to dispel the theory of fraud, which has been advanced by plaintiff. I therefore direct a verdict for the defendants.”</p> <p>Held, by the general term, that the evidence in respect to the title of the plaintiff to the land in question, was not conclusively in favor of the defendant, and the case should have been submitted to the jury, and a verdict should not have been directed, and therefore a new trial is granted. *</p> <p>Among the questions of law considered, discussed, and decided are the following: The principles of law necessary for the the decision of"this case are those stated by the court of errors in Adams ®. Rockwell, 16 Wend. 285. This case has often been followed, and expressly approved in many cases. Terry v. Chandler, 16 W. T. 357, quotes the rule from Adams v. Rockwell: “ Where there can be no real doubt as to how the premises should be located according to certain known boundaries described in the deed, to establish a practical location different therefrom, there must be either a location which has been acquiesced in for a sufficientTength of time to bar a right of entry under the statute in reference to real estate, or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof. Or the party whose right is to be thus barred must have looked silently on and seen the other party do acts, or subject himself to expenses in relation to the land on the opposite side of the line, which would be an injury to him and which he would not have done if the line had not been located, in which case perhaps a grant might be presumed within twenty years.</p> <p>Where, in case the boundary line is fairly disputed, adjoining owners settle upon a line as a boundary line between their lands, and acquiesce therein,- the acts and parol agreement as to the line and the acquiescence are evidence as to the true boundary line, and if such acquiescence continue for a sufficiently long time, it may be less than twenty years, it is considered conclusive evidence that the line settled upon is the true boundary line. Yosburgh ®. Teator, 32 if". T. 561, in which Judge Potter said that such a settlement of a boundary line where equivalents of benefits or advantage are mutually received and acted on, will bind the parties to it, not by way of transferring title from one to the other, which the statute of frauds forbids, but operates by way of estoppel (Baldwin ®. Brown 16 JST. T. 359; Reed ®. Parr, 35 Id. 117; Reed ®. McCourt, 41 Id. 441; Ratcliffe®. Gray, 3 Keyes,' 510).</p> <p>Mere silent acquiescence in an adverse possession according to an erroneous line is no bar till it shall have continued for twenty years, although in a proper case it may be left to the jury to infero a grant (Jackson ®. McConnell, 19 Wend. 177.)</p> <p>Where there is no uncertainty as to the true boundary line, a mistake of an owner in pointing out an erroneous line as the boundary of' his property, or in asserting it to be the true line, is not conclusive upon him. It is, at most, an admission against himself which may be explained by testimony (Jackson v. Douglass, 8 J. 286; Stuyvesant ®. Tomkins, 9 Id. 61; Jackson ®. Woodruff, 1 Oow. 276).</p> <p>It is clear, that where there has not been any uncertainty of boundaries or of location, and possession has been transmitted by a grantor to a grantee under a conveyance, a parol agreement between them, that the land conveyed shall be deemed to be in another place, is wholly ineffectual.</p> <p>The law presumes that, where title is shown, the true owner is in possession, until adverse possession is proved to begin. Adverse possession does not begin until an actual entry is made, accompanied by a claim of title hostile to that of the true owner, and to bar a right of entry, it must be continuqus for twenty years (Jackson ®. Nestles,</p> <p>3 J. 124; La Prombois ®. Jackson, 8 Oow. 589; Jackson®. Sellick, 8 J. 202; Jackson ®. Sharp, 9 Id. 163 ; Humbert «. Trinity Church, 24 Wend. 587; Jackson ®. Thomas, 16 J. 293).</p> <p>The deed described premises as'bounded “on the south side by by another street of like breadth of sixty (60) feet between,” the lot conveyed and lot number 140, such street was laid down on a map but had never been used as a highway. Held, that the deed conveyed land to the center line of the street.</p> <p>The construction of deeds on this point, has been influenced by considerations of public policy. This has affected judicial decisions in the different States (American pote to Dav'aston 0, Payne, 2 Smith Lead. Oas.6 Am. ed. p. 228). In this State Judge Oaklet said, in Hammond 0. McLachlan, that “ principles of great public convenience forbade that, one should be the owner of a farm and another of a road or stream running through it. The practical inconvenience of a contrary rule has led to this construction uniformly, ■ unless where it expressly appears, that the parties intended the contrary,” and applied it-to lots in a city bounded ón a street.</p> <p>An exception to a direction to find a verdict for defendant, brings up on the appeal,' the question, whether, on any construction of the facts, the jury would have been warranted in finding for the plaintiff (Stone 0. Flower,-47 JST.Y. 566.)'</p>

<p>In an action upon a promissory note, payable to the order of plaintiff, the complaint alleged that one Totten made the said note and delivered it to defendant, who indorsed, and for value received, delivered the same to plaintiff, who, on the faith of such indorsement, accepted said note. The answer denied the facts stated, and that defendant indorsed said note for or on account of Totten, the maker, or as security to plaintiff for its payment, and alleged that he indorsed it for accommodation of plaintiff.</p> <p>Held, that there appeared sufficient on the face of the complaint to show that the defendant’s indorsement was alleged to be as surety for Totten.</p> <p>On the trial, the plaintiff being a witness, his counsel asked him the question: “ State the circumstances under which you received that note ? ” This was objected to, and the objection sustained, and exception taken.</p> <p>The plaintiff afterwards testified that the note in question was given to him for plastering done on Totten’s (the maker’s) houses. The plaintiff’s counsel asked the question: “What interest, if any, did Thomas W. Smith (the defendant) tell you that he had in those buildings ? ” The court refused to allow the witness to answer this, question, and the plaintiff excepted.</p> <p>Held, that answers to these questions should have been allowed, as relevant to a cause of action stated in the complaint, and it was error to exclude the same.</p>

<p>If, on a motion for a reference, there is evidence that the trial of the issues requires the examination of along account on either side, the finding of the special term that such examination would be required, which finding is involved in the making of an order, is conclusive (Welsh «. Darragh, 52 W. Y. 593; Kain ®. Delano, 11 Abb. Pr. N. 8. 39).</p> <p>If it appears any account has to be examined, the conclusion that it is to be deemed long will not be disturbed.</p> <p>The characteristics of accounts in evidence, and which make it necessary to send them to a referee, are, .that sums have to be remembered, figure for figure, and these sums have to be added, or subtractions made, and interest calculated on various sums from and to various dates. But if, in the consideration of statements of' figures as evidence, you can avoid the necessity of their combination, or of the remembrance of their exact amounts, such statements will not necessarily be examined on the trial as accounts, although they contain an assertion of many single circumstances which incidentally exist within the form of an account, and stated in figures: as, for instance, in an action in ejectment," where it is desirable for one party to prove another, who was in possession of the premises, was his tenant, a long account, consisting of many items of rent paid, might be examined, yet it would not be deemed that it would be an examination of the same as an account.</p> <p>Held, that in this case the plaintiff’s right to claim interest (which is the cause of action) does not depend upon the examination of either of the accounts mentioned in the answer, or of their details, as accounts between the parties, but rests iipon the question as to whether or not the defendant refused to pay the checks of plaintiff upon the deposits admitted by both parties; and this question must be determined upon facts extrinsic of the accounts, as such. So far as appears from the pleadings, the verification of either of the accounts set forth in the answer, in respect to each or any of the items composing them, by the defendant, would be immaterial, and the order of reference made by the special term should be reversed.</p>

The action was against the defendants as indorsers • of a promissory nóte, made by Allen and McDonald. The makers requested the firm of C. De P. Field & Co. to indorse a note, payable to their own order. C. De P. Field agreed so to do for a consideration, provided the defendants would become prior indorsers.

<p>Rule 40 of supreme court rules, provides that after a trial of specific questions of fact, or any question of fact by a jury as a substitute for a feigned issue, that either party desiring to apply for a new trial, must move at special term upon a case or exceptions, or a case containing exceptions (except when the judge directs such motion to he made upon minutes at the same term or court at which the issues were tried).</p> <p>In the case at bar, the defendant, without any special direction by the judge before whom the trial was held, made a motion for a new trial upon the minutes, at the same term, when the issues were tried. The motion was heard and denied by the judge, without, objection by the counsel for the plaintiffs.</p> <p>The general term suggests that such proceedings were tantamount to a formal direction of the judge, and satisfy the requirement of the rule in that regard, but does not hold the same- formally. In this motion to dismiss an appeal from the order of the judge denying the motion for the new trial on the minutes, it appears; that an order has been made at special term, declaring the appeal to be abandoned. Although no notice of settlement of this order has been given to the appellant, still it is in full force. Therefore, the motion to dismiss the appeal must be granted.</p>

<p>An order directing the answer to be made more definite and certain does not involve the merits, nor does it affect a substantial right in the action, and cannot be reviewed on appeal.</p> <p>An order striking out a distinct defense as irrelevant does not affect a substantial right, and is appealable.</p> <p>In the case at bar, the order appealed from, contained a direction that the answer should be made more definite and certain, and also ordered one of the defenses stricken out as irrelevant. ■</p> <p>The general term considered only the latter portion of the order on the appeal, and affirmed the same.</p>

The complaint alleges substantially, that in the year 1865, the plaintiff deposited with the firm of August Belmont & Co., which firm is alleged to have been composed of the defendants, gold to the amount of nineteen ■ thousand five hundred and ninety-two dollars and forty-four cents, that the defendants drew four bills of exchange for the amount, payable in' pounds sterling.

This was an action by the wife against her husband for a divorce from the bonds of matrimony. On August 3, 1852, a judgment was entered in. the action in favor of the plaintiff, dissolving the marriage, on the ground of the adultery of the husband. The judgment made no provision for the allowance of alimony to the plaintiff.

This action was brought to recover damages for a personal injury, alleged to have been sustained by the plaintiff, in consequence of the negligence of one of the defendant’s servants, while engaged in removing cotton from the defendants’ pier, No. 12 East River. The evidence shows that the defendants were the proprietors of the Merchants’ Steamship Line, and were engaged in carrying merchandise between New Orleans and New York.

<p> Trusts in favor of creditors.—Creditors' suit.—Pleadings.—Husband and wife. </p> <p>Where the consideration on the purchase of land is paid by one person, and the deed is taken by and in the name of another, the person paying the consideration has no such interest in the premises, as can be impressed with the lien of a judgment, or be sold under execution against him.</p> <p>Where one person advances the consideration, and takes a contract for the conveyance to him of land, and afterwards assigns the contract, without consideration, to a third person, and the deed of conveyance is subsequently made to such third person, the equitable interest of the person paying the consideration under the contract passes to the grantee, who becomes vested with the legal estate.</p> <p>Under the circumstances above stated, the grantee holds the land impressed with a trust in favor of the creditors of the person paying the consideration, and where such grantee afterwards con-' veys the land to the wife of the person advancing the consideration, in pursuance of an arrangement between them when the deed was made, the wife also takes the land, impressed with the same trust in favor of the creditors of her husband.</p> <p>a: The husband is not the beneficial owner, nor does the wife hold the land in trust for him.</p> <p>The remedy by a judgment creditor’s action, under the revised statutes, against land held under contract for purchase, does not apply to a case where the equitable rights of the person paying the consideration under the contract becomes merged in the estate of another, who becomes fully vested with the legal title by deed of conveyance.</p> <p>The remedy of a creditor under such conditions, is to subject the land to the payment of his debt, through the trusts created in favor of creditors, on his establishing the relation of trustee and cestui que trust, under the provisions of the statute of “uses and trusts.”</p> <p>Although a plaintiff asks other relief, and seeks as a judgment creditor to reach the supposed interest of the judgment debtor in land, yet he is entitled to such judgment, when all the parties are before the court, as the law pronounces, upon the facts pleaded and proved, although such other relief may not be specially aslred for.</p> <p>Husband and wife; Circumstances under which moneys coming to the wife, or earned by her during coverture, are to be considered her individual property, and how moneys received by a wife, although proceeds of property of her husband, may be upheld as a gift from him to her.</p>

<p> Trademark.—fraudulent imitation.—Remedies Iry statute. </p> <p>When a person, by a combination of elements and symbols, has produced a wrapper to enclose and designate an article manufactured by him, under which it has gone into use, he cannot be interfered with or despoiled of his lawful business, by the imitation of his label by another, who seeks by such imitation to introduce a similar article. Such practices are deceptive, and promote dishonorable competition.</p> <p>In order to justify the intervention of a court of equity, it is sufficient that the imitation is so close, that a crafty vendor may palm off on the buyer the article manufactured by the latter, as that of the former.</p> <p>It is no answer to an application for an injunction, that in certain particulars, the label of the defendant differs from that of the plaintiff, so long as the imitation in other respects is so close, that the general appearance is the same, and purchasers have been and are likely to be deceived.</p> <p>The counterfeiting or imitation of the stamp, wrapper or label of a mechanic or merchant, is punishable by fine and imprisonment, and the offending party is liable to a civil action for damages (New York Stats, at Large, vol. 3, pp. 663, 672; vol. 6, p. 90).</p>

The Bartlett Reversible Sewing Machine Company was organized as a corporation, in March, 1869, under the act of the legislature of this State, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes.” The original corporators were Peter V. Husted, Samuel F. Keese and Alexander Studwell, and were named as trustees of the company for the first year.

<p>In the case at bar, the court at special term, held, on a motion of the defendant, to strike out a portion of the complaint as irrelevant, and to make the same more definite and certain, so as to show whether the defendant was sued as receiver, or individually, that the complaint stated but one cause of action, and that certain allegations were irrelevant, and should be stricken out, and that the defendant should be named in the action as 1 ‘ Receiver of the Lorillard Fire Insurance Company, ” &c.</p> <p>On appeal, the general term reversed the order, and held that the court had no power to change the character of the party sued as defendant in the action.</p> <p>That the complaint, contained sufficient allegations' to entitle the plaintiff to try the question of defendant’s personal liability for the acts complained of, and therefore the allegations stricken out were pertinent and material, and should not have been stricken out.</p>

<p>The defense to the note in suit, was that the corporation defendant made, and the defendant Andrew Gill indorsed the same, without any consideration, for the accommodation of the defendant, Everett Clapp, who indorsed and delivered the same to the plaintiff upon a usurious agreement that plaintiff should reserve a greater sum than legal interest, &c., &c., and therefore defendants allege and plead usury, as a defense to the same.</p> <p>The maker being a corporation, a question arises upon the construction of the statute of 1850 (Laws of 1850, ch. 172, p. 334), which provides that “ No corporation shall hereafter interpose the defense of usury in any action.”</p> <p>Held, by the general term, that the decision in Hungerford Bank ®. Potsdam & Watertown R. R. Co., is in point (10 Abb. Pr. 24).</p> <p>In that case the loan was made to the corporation defendant on its note, whereby plaintiff received more than seven per cent, interest. The other deifendants were accommodation indorsers.</p> <p>The court held that the contract of the indorsers was independent of that of the maker, and the indorsers, as defendants, could avail themselves of the plea' of usury. In the case at bar, the general term held that the indorsers could in like manner avail themselves of the defense of usury.</p> <p>Held also, that the purpose of the act was to prevent the avoidance by a corporation of its own conti'act, for the reason that it was made in contravention of the laws against usury.</p> <p>The reversal of this judgment in favor of all the appellants, decides that a corporation might avail itself of a plea of usury against a note made by it for the accommodation of an indorser who indorsed and delivered it to the plaintiff fon a usurious consideration.</p>

Appeal by defendant from an order directing a reference to hear and determine all the issues. The action was upon a contract for the sale and delivery of a quantity of peaches, to be shipped and delivered by the plaintiff to the defendant, at a stipulated price.

• Appeal by plaintiff from an order for discovery of books. The action is for money received by the defendant to the use of the plaintiff. The complaint alleges six separate canses of action. They are identical, expept in time and amount.

Appeal by defendant from judgment entered on the verdict of a jury.

The action is to recover upon a special contract a stipulated price for excavating and removing rock and earth from the defendant’s property. The defendant, for a first defense, made a general denial.

Appeal by plaintiff from judgment entered on a decision rendered on a trial by the court without a jury. Held: that where a party claims equitable relief, and the facts show a money demand, the complaint must be dismissed. See also, to same effect, Towle v. Jones, 1 Robt. 87 ; Ryder v. Jenny, 2 Id. 56; Durant v. Gardner, 10 Abb. Pr. 445).

<p>I. CORPORATION—DISSOLUTION—STOCKHOLDER.</p> <p>1. Dissolution, what does not operate as. a. The appointment of a receiver, under section 86, article 2, title 4, chapter 8, part 3, Revised Statutes, with the powers conferred hy chapter 71, Laws of 1852, and chapter 463, Laws of 1860, does not.</p> <p>RESULT OF THIS:</p> <p> That notwithstanding such appointment and an accompanying injunction, </p> <p>1. The company could still be sued as a corporation.</p> <p>2. The summons in an action against the corporation may be served on the person who at that time was the president of the company, and whose term of office' had not expired by effluxion of time, and who had not-resigned at the time of service.</p> <p>3. Those who' were then stockholders did not thereby cease to be such.</p> <p>4. The statute of limitation, in the Laws of 1848, chapter 40, section 24, does not commence to run at such time.</p> <p>5. A recovery may be had in an action commenced more than two years thereafter, against one who at that time was liable as a stockholder, under the provisions of section 14 of the act of 1848, for a clebt of the company, the judgment against the company for such debt having been obtained in an action commenced thereafter, by the service of the summons on the person who was at that time president, and whose term of office had not expired by effluxion of time, and who had not resigned at the time of service.</p>

An appeal from an order made by Monell, Ch. J., by which a verdict rendered in favor of the plaintiff, for nine hundred dollars, was set aside as being contrary to law and evidence. The motion was made pursuant to section 264 of the Code of Procedure.

Appeal by plaintiff from an order sustaining a demurrer to a complaint. The complaint alleges that the Michigan Southern & Northern Indiana ‘Railroad Company, a corporation created under the laws of Michigan, Ohio, Indiana and Illinois, issued certain stock evidenced by certificates in the following form: “The Michigan Southern & Northern Indiana Railroad Company. “No. [Vignette.] Shares. “Guaranteed Ten Per Cent.

<p>ARBITRATOR’S AWARD.</p> <p>1. Action to set aside.</p> <p>1. Presumptions in suppoi't of the awa/rd.</p> <p>a. Where all the proofs and proceedings taken by and had before the arbitrator, are not put in evidence, and a state of facts which would support his rulings in the admission and rejection of evidence and his decisions on questions of fact and law arising before him, might possibly have existed, the court will assume they did exist, and were established before the arbitrator.</p> <p>3. Error by arbitrator, what is not such as to call for setting aside his award.</p> <p>a. Where a rule was adopted at the hearing of the arbitration that no person who was expected to be a witness should be in the room during the examination of the other witnesses, and after one A. had been examined, who testified against one of the parties to the arbitration, a request by such party for leave to introduce a person Who had been in the room during the examination of A. (but who was not then expected to be called as a witness), to prove that A., after he had finished his evidence and had left the room where the arbitration was held, had said that .he expected, by his evidence so given, to be revenged on the party against whom he testified, and the ahswer of the arbitrator to such request, that under the rule he could not permit such person to be examined, even if error, is not such an error as would lead to a setting aside the award.</p> <p>b. The sending by the arbitrator to one of the parties asking for a statement of what items should have been allowed, what credited, and what were objectionable in his view, and the receipt of the statement asked for, which contained not only dates, amounts and specifications of what the amounts were charged and credited for, but also remarks as to the merits of the case, such sending and receipt being without the knowledge or consent of the other party, who, as soon as apprized of it, objected to the proceeding, whereupon the arbitrator informed him that he should not consider the statement, and on the trial of the action to set aside the award, testified, that he did not consider it; the sending of the letter and receipt of the statement does not constitute error for which the award will be set aside.</p> <p>Bxjt,</p> <p>Waiver. Even if it were material error, acts of the party (after being informed by the arbitrator that he was about to send for the statement) in calling to see if it had been received, and after its reception, examining it, abd making no objection to its reception but only claiming the right of offering proof in refutation, which the arbitrator acceded to in the event of his concluding to consider it as evidence, but the arbitrator did not consider it as evidence,'and so informed the party, waived it.</p> <p>3. Stipulation that either party may read from a written record of the proof s and proceedings before the arbitrator such parts thereof as he desired to put in evidence on the trial, —Effect of.</p> <p>1. Where the plaintiff reads in evidence a portion of .such proofs, and the defendant either reads none or only a part of the remaining portion, if the omission to read the portion not read constitutes a defect in plaintiff’s case, defendant may take advantage of such defect notwithstanding the stipulation.</p> <p>II. CONTRACT—RESCISSION OF.</p> <p>1. Justification of rescission.—Evidence in support of.</p> <p>1. Acts and transactions prior to the contract may be received, a. Where, after the making of the contract, one party does things which the other maintains justifies a rescission, such other party is at liberty to show the purpose and character of those things by proving, that before the making of the contract, the party doing the things, while acting as his agent, commenced a series of acts which ended in an injury to him, through the use of powers given by the contract, and yet in violation of its provisions.</p> <p>HI. Corporation.—Wrongful ' combination of officers with AGENT.</p> <p>1. Duty of officers.</p> <p>It is to recede from their position and insist- that the agent should perform his duty.</p> <p>3. Waiver of breaches, or affirmation of a contract with knowledge of prior breaches.</p> <p>a. No such waiver or affirmation can arise from acts done pursuant to a wrongful combination between the officers of a corporation and one of its agents, nor from any transaction between them under such combination.</p>

Thomas J. Barr was appointed receiver in the above entitled action (for the order of receivership, and the nature of the action, see ante, p. 223). As such receiver, he instituted proceedings against the defendant Lucke, as for a contempt in not paying over certain moneys of which he claimed to be receiver, the result of which was that defendant Lucke paid over the money. This action was dismissed on being called for trial, no one appearing for the plaintiff.

<p>Motiori for leave to amend complaint, or to file supplemental complaint.</p>

<p>On demurrer to complaint.</p>

' Appeal from judgment and order. The action was by the receiver of the Bowling Green Savings Bank.

The action was against the defendant as the guarantor of one Neiison for the payment of certain moneys and the performance of certain covenants by said Neil son, in a lease to him of certain premises executed by the-plaintiffs.

The action was to recover some additional taxes which had been imposed upon demised premises. Joseph R. Stuyvesant was the owner in fee of two lots of land in this city, and the lessee, for a long term of years, of two other lots adjoining. He leased the four lots to Browning and Moore, for a term of ten years.

This action being at issue, the plaintiff, under section 391 of the code, examined the defendant, Kelly, as a witness before trial. Before the completion of his examination, which lasted several days, and made several hundred folios, but within the time allowed for amendments of course, the plaintiff served an amended complaint. The defendant’s attorney declined to receive it, and then moved at special term to set it aside. The motion was denied, and the defendant appealed.

The action was for goods sold and labor performed. One of the defenses was a breach of warranty of the quality of the goods, and that the labor performed was not done in a good and workmanlike manner.

<p>The defendants sold goods for the plaintiff under a contract “to guarantee the payment for all goods sold by them, and for the full amounts for which said goods should be sold.</p> <p>The plaintiffs claim to recover the amounts of the respective sales made by defendants, with interest, from the time the same became drae.</p> <p>Defendants deny their liability to pay any interest on the amounts of sales.</p> <p>Held, that defendants were liable to pay interest on the amounts of the respective sales from the time they became due and payable to them, that being the time at which they, as guarantors, became liable to pay on their contract.</p>

This is an appeal from judgment on report of a referee, entered July 2, 1873, for one thousand six hundred and four dollars and thirty cents. Defendants were expressmen, under the name of the Harlem Express Company. The New York & Boston Express Company received from plaintiff a machine for printing in colors, attached to an ordinary Gordon press, at Boston, to transport to New York American Institute, for exhibtion. It seems to have been well packed at Boston.

The plaintiffs shipped at Memphis one thousand and ninety bales of cotton, at various dates between February 5 and March 5, 1872, by the Memphis and Louisville Railroad, to be delivered on board steamers at Jersey City. The various railroad lines over which the cotton came to Jersey City, including the Erie Railway Company, were united together by an agreement to receive and forward freight, one from the other, and through bills of lading were given to the plaintiffs.

<p>I. insurance marine against loss of .freight by THE PERILS OF THE SEA.</p> <p>1. Total loss—although some of the ca/rgo was saved, delivered, and the freight money therefor paid.</p> <p>a. Where the vessel, before reaching the port of delivery, but within a short distance of it, becomes a total wreck, and the master is drowned, and the assured, on receipt of the news, has an interview with the president of the assurer, who told him he had better telegraph to the consignee to find out the condition of the vessel, and to take at least a fifty per cent. . average bond; and to advise with one A., whom the president stated to be either the assurer’s or the underwriter’s agent at that port, the president also stating that it would be impossible to get an agent to go there; and thereupon the assured did so telegraph to the consignee, who advised with A., and he directed the vessel to be turned over to him, as the agent of the underwriters; and thereupon the consignor abandoned the vessel to him as such agent, and all subsequent steps in respect to saving cargo, .delivering portions thereof, and receiving the freight thereon, and selling portions thereof and receiving the proceeds of sale, were performed by him, or by his direction. Held,</p> <p>1. A total loss of the freight so far as the owners were concerned.</p> <p>a. This, although a portion of the cargo was saved and delivered, and the freight thereon, amounting to two thousand six hundred and seventy-six dollars, received, the expense of saving and delivering it amounting to five thousand eight and hundred and fifty-three dollars.</p> <p>3. That it was error to direct a verdict for only the difference between the amount insured, to wit: three thousand six hundred dollars, and the freight received, to wit: two thousand six hundred and seventy-six dollars.</p> <p>3. That under the circumstances, A. was the agent of defendant, and it was bound by his acts.</p>

Exceptions ordered to be heard at general term. The action was to recover damages for injury to plaintiff’s property by a flow of water. One Henry Mason was the owner of certain premises on the corner of Fourth-street and Lafayette-place. He leased the first floor and basement of said building to the plaintiff, for a term of five years, from May 1, 1869.

Appeal by defendant from judgment upon report of referee.1 The complaint averred that the plaintiff sold and delivered certain property to the defendant, and that the. defendant promised to pay therefor eight hundred and eighty-seven dollars.

753 Eighth-avenue, in the city of New York, upon which lot of land the plaintiff had before that time erected a building at the cost of one thousand dollars, and had thereon also personal property of… Held: “If the defendants had acted under any other authority than the warrant, they would have been trespassers ; but under the orders of the landlord they were protected.

'Exceptions ordered to be heard at general term. The complaint averred that at divers times, in the years 1870 and 1871, the firm of William H. Goodwin & Company sold and delivered to the defendant, goods, wares, and machines, for which the defendant promised to pay six thousand two hundred and seventy dollars ; that he had paid on account of the same two thousand five hundred dollars; that plaintiff was sole survivor of the firm, &c. The answer denied “that at divers or any…

Appeal by defendant from judgment entered on a verdict. The plaintiff being in Montreal, purchased a series of tickets from Montreal to Hew York, and left Montreal October 8,1870. The plaintiff was unable .to state the corporation he purchased the tickets of. He says, however, that he purchased them at an office adjoining St. Lawrence Hall, on October 7. 1870, and from the inscription on the check, “ H R. & ft.

<p>L UNDERTAKING ON APPEAL—MARRIED WOMAN.</p> <p>1. A married woman can not be surety on an undertaking on appeal.</p>

The action was brought to set aside certain assessments^and to perpetually restrain their collection. The facts established on the trial, and found by .the court, were as follows: .hirst.

<p>Enforcement of trust by a creditor;—not necessary that execution should have been returned unsatisfied.</p> <p>The enforcement of a pure trust is a subject of original equity jurisdiction, and does not depend upon a condition that the cestui que trust has exhausted his remedy by judgment, and execution returned unsatisfied against his debtor.</p> <p>So held in a case where a creditor commenced an action to enforce a trust in his favor under the statute of uses and trusts to leased land, the consideration on the purchase of which had been paid by the debtor, and the title was taken in the name of another (McCartney y. Bostwick, 32 m r. 53).</p>