Volume 5 — Sandford's Superior Court Reports

This was an. action of trespass on the case to recover for the non-delivery of one thousand molasses shocks and heads, under a contract between the plaintiffs and the defendants. The cause was tried before the Honorable Elisha P. Hurlbut, one of the justices of the Supreme Court, without a jury, on the 13th day of July, 1848, by agreement of parties.

This was an action by the plaintiffs as endorsers against the: defendants as acceptors, by their partnership name of M. Morris & Co., of two inland bills of exchange. Each bill was drawn by J. Ereedlander upon the defendants, in favor of E. W. Bancroft; was payable 90 days after date,. and was endorsed by Bancroft -to the plaintiffs.

<p>The accumulated profits of a Mutual Insurance Company, which are retained as a fund for the’payment of losses, are a capital stock, upon which the company is liable to taxation as a monied corporation.</p> <p>An act of the Legislature, directing a sum certain, arising from the proceeds of .a local tax, otherwise legally imposed, to he applied to the payment of contingent expenses, is not in conflict with the provisions of the constitution.</p> <p>(Before Oakley, Ch. J., Doer and Paine, J. J.)</p>

This was a bill in equity, filed by the acting Executor and Trustee, under the will of Gabriel Furman deceased, and also by the heirs at law of said Furman, to restrain the Mayor, Aldermen, and Commonalty of New York from making or delivering to any person or persons a grant of the land under water in the East River, bounded easterly by Corlaers street, and southerly by South street, and situated immediately in front of the land granted to the said Gabriel Furman, as…

<p>The terms Domicil and “ Residence ” are not synonymous.</p> <p>A person can have but one domicil, but he may have two places of residence* which he occupies in succession.</p> <p>The Act of the 25th March, 1850, relative to the assessment of taxes, contemplates and provides for such cases.</p> <p>Held, that under the provisions- of that act, the plaintiff by his own showing was, properly taxed as a- resident of the city of New York, and was therefore not entitled to an injunction to restrain the collection of the tax, which had there been imposed upon him.</p> <p>Order at special term denying injunction affirmed .with costs.</p> <p>(Before Sandfokd and Mason, J. J.)</p>

Demurrer to Pleas.—This was an action of replevin brought by plaintiffs, for goods taken by the defendant from on board plaintiffs’ steamboat, while lying at a certain pier in the city of New York. The defendant, by his cognisance, acknowledged the taking, and justified the act by setting up that he distrained the goods as bailiff of Mr. Lispenard Stewart, who was the landlord and owner of a bulkhead 100 feet long, on West street, between Watts and Hoboken streets.

This was an appeal from an order made by Mr. Justice Paine at special term, denying a motion on the part of the defendant for a re-hearing. The action was brought by the plaintiff, as endorsee of a promissory note, against the defendant as maker, and the referee (M. Ulshoeffer, Esq.) had reported that the plaintiff was entitled to recover the full amount of the note, with interest.

<p>Irrelevancy or surplusage is not a ground of demurrer to an answer which contains a denial of any material allegation in the complaint, or sets up a valid defence.</p> <p>When a publication is libellous upon its face, the law implies that it was published with a malicious intent.</p> <p>Malice in such cases is a conclusion of law which the plaintiff is not required to prove, nor the defendant permitted to deny.</p> <p>It is only when the publication would be privileged, if not in fact malicious, that malice is necessary to be averred and proved.</p> <p>In other cases, the denial of malice forms an issue, which a jury has no right to determine, and which the court must, therefore, reject as immaterial.</p> <p>Allegations in a complaint, relative to the intent and motives of a libellous publication, are not to be deemed material, so as to render it necessary for the defend, ant to admit or controvert them in his answer.</p> <p>Only those allegations in a complaint are material, in the sense of the code, which the plaintiff must prove upon the trial in order to maintain his action.</p> <p>An inuendo is not an averment of facts, but an inference of reasoning.</p> <p>When improperly framed, it may in some cases justify a demurrer, but its truth or falsehood is never a question of fact for the consideration of a jury.</p> <p>The sole office of an inuendo, is explanation, and the only question which it raises is, whether the explanation, given is a legitimate deduction from the premises stated ; and this question it belongs to the court alone to determine.</p> <p>The decision of the supreme court in Van Vechtcn v. Hopkins, settled the law in this state, that “ from the nature and use of an inuendo, it is not the subject of proof by witnesses.”</p> <p>Held, that the issues taken in the answer of the defendant upon the truth of the inuendoes in the complaint were immaterial.</p> <p>The code has made an important change in the rules of pleading in actions for libel or slander, in not requiring extrinsic facts, showing the application of the words to the plaintiff, to be stated in the complaint.</p> <p>But extrinsic facts, when the proof is necessary to determine the meaning of the ' words, as libellous or slanderous,’ must still be stated in the complaint. - •</p> <p>The code has only abolished those rules of pleading which are technical and formal, and arose chiefly from an arbitrary classification of actions.</p> <p>These rules which, as founded in good sense and sound logic, lend an important aid in the investigation of truth, it has been careful to retain.</p> <p>Of these rules none is more evidently just or better established than that which declares, “ That where a defamatory charge is made in general terms, it can only be justified by a specification of the facts which are relied on to establish its truth."</p> <p>An answer is insufficient in the sense of the code, and therefore bad upon demurrer, not only when it sets up a defence groundless in law, but when in the mode of stating a defence, otherwise valid, it violates the essential rules of pleading.</p> <p>Held, that as the defamatory charges in each libel, set forth in the complain^ were general, the averments in the answer that the facts stated in each publication “ were and are true,” as a justification were insufficient.</p> <p>An averment in an answer that certain facts are true, “ as the defendant has been informed and believes,” is to be construed as an averment “upon information and belief" of the existence of the facts, in all cases, where the existence of the facts is necessary to be proved to constitute a defence.</p> <p>Whether a publication, libellous on its face, may be excused as privileged, is a question of law that may be properly raised by a demurrer.</p> <p>A publication cannot be excused as privileged upon the ground that its animadversions were a fair and legitimate criticism, unless the truth of the facts upon which these animadversions were founded is established or admitted.</p> <p>In all such eases the defences of truth and privilege are inseparable; and when that of truth is not pleaded, that of privilege must, of necessity, be rejected.</p> <p>Held, that as the publications set forth in the complaint were not justified, and asserted facts and imputed designs, which rendered them libellous, the defence of privilege could not be sustained.</p> <p>A demurrer may properly include matter in mitigation of damages, when the truth of a libel is not sufficiently pleaded.</p> <p>It is not necessary that a demurrer should cover issues taken in an answer upon matters of inducement merely.</p> <p>When circumstances in mitigation are meant to be given in evidence, they must be stated as such in the answer; otherwise, the plaintiff will have a right to infer that they are meant to be relied on as a bar, and upon'that ground may justly demur to them.</p> <p>Held, that plaintiff was entitled to judgment upon all the demurrers, with usual liberty to amend upon payment of costs given to defendant.</p> <p>(Before Oakley, Ch. J., Dubk. and Payne, J. J., heard, April Í and 8.,</p>

<p>In an action against several defendants for malicious prosecution, the separate acts and declarations of individual defendants, ought not to be admitted in evidence to charge other defendants not then present, in the absence of any proof of conspiracy.</p> <p>In such an action the jury cannot, upon the question of malice, and in determining the amount of damages, take into consideration facts, establishing against some of the defendants, a case of false imprisonment; that constituting a distinct cause of action for which those defendants may he rendered liable in another suit.</p> <p>The question of probable cause, upon a given state of facts, is in all cases a ques- ■ tion of law. It is therefore erroneous for the judge, in an action for malicious prosecution, to submit it to the jury to determine whether the facts and circumstances in evidence afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge.</p> <p>It is also erroneous to shift the burden of proof from the plaintiff to the defendants, by instructing the jury, that if the defendants acted upon information, the jury must be satisfied that they believed in its truth.</p> <p>The jury should be instructed that they are bound to presume that the defendants believed in the truth of the information upon which they acted, unless it clearly appears from the evidence that the information was false, and that they knew it to be so.</p> <p>A joint verdict against several defendants, as tort-feasors, upon several counts, all of which are good, cannot be reformed by limiting it to particular counts or particular defendants; but if upon any one of the counts, and as against any one of the defendants, it is contrary to law or evidence, it must be set aside.</p> <p>(Before Duer, Mason, and Camtbell, J.J.)</p>

This was an action for the recovery of freight on a cargo of logwood, brought in the brig Mary and Jane, from Laguna to New York, and there delivered to the defendants as consignees. The plaintiff claimed to be entitled to the freight as charterer, and therefore owner, of the vessel for the voyage.

This was an action of assumpsit, commenced in the Supreme Court and transferred to this court; the object of which was to charge the defendants as principals upon a contract to deliver oats, made with the plaintiffs by A. W. Otis & Co., in these words: “ For a valuable consideration to us in hand paid, we have sold A. M. Fenly two thousand five hundred bushels of canal oats, at forty-five cents per bushel of thirty-two quarts, to be delivered in this city at any time at our…

This was an appeal from a judgment at special term, overruling a demurrer to the complaint. It is necessary to state the pleadings in order that the points raised by the counsel, and the decision of the court may be understood.

This was an appeal from a judgment rendered against the defendants at special term. The complaint charged that the plaintiff on the 6th May, 1850, at St. Louis in Missouri, drew a bill of exchange dated on that day, on one Daniel Thatcher, of Bridgeport in Connecticut. That the bill was for $2,500, payable 90 days after date, to the order of Messrs. Waterman & Ryan, at the Bank of the State of New York, in the City of New York.

This was an action of assumpsit against the defendants as partners, composing the firm of Brown, Brothers & Co. It was tried before Mr. Justice Yanderpool on the 29th June, Í848; and after the evidence on both sides had been given, the jury, by consent, found a verdict for the plaintiffs for the sum of $40,000, subject to adjustment, and subject to the decision of the court upon a case to be made by the plaintiffs, with liberty to either party to turn the same into a bill of…

This was an action commenced by the plaintiff, to recover from the defendants, the contract price for the construction of a roof on a house of the defendants, in' the city of New York.

This was an action of replevin in the detinet for the recovery of 62 bales of brown cotton sheetings. The suit was commenced in July, 1845, and was tried before Chief Justice Oakley and a jury, on the 13th, 14th, and 15th December, 1848.

This was an action to recover the possession of one-sixth of certain lots of ground, in the city of New York. The plaintiff claimed title, as one of the children and heirs at law of Joseph Jennings, deceased, who died seized in fee of the premises in question. The defendant, the widow of Joseph Jennings, claimed title as devisee, under his last will and testament, which she set forth in her answer, and averred, to have been duly executed and attested to pass real estate.

This was a motion on the part of the plaintiffs for a new trial upon a case settled, with liberty to either party to turn the same into a special verdict or bill of exceptions.

This was an action upon a sealed instrument, by which the defendants agreed to pay to the plaintiff the sum of $3000, as stipulated damages for the breach of any one of the covenants contained in an agreement, bearing the same date, between the defendant, Charles B. Peddie, and the plaintiff. The complaint assigned several breaches by the defendant, 0. B. Peddie, upon which issue was joined, and the cause was tried before Mr. Justice Paine and a jury, in June, 1850.

This case was transferred to this court, from the supreme court, under the provisions of the act of 1849. The -trial was had at bar.. The pleadings were very voluminous, and a great number of witnesses were examined, and numerous questions of law and fact were discussed, with great learning and ability, by the counsel on both sides.

This was an appeal, by the defendant,.from a judgment at a special term, in favor of the plaintiff. It is necessary to state the pleadings, in order that the questions raised, and the decision of the court, may be clearly understood.

This was an action of replevin, 'commenced before the code, and is the same in which a new trial was heretofore granted by this court (3 Sand. S. C. Rep. p. 607). It came on again to be tried before Mr. Justice Paine, and a jury, on the 4th March, and a verdict was rendered for the plaintiff.

This was an action for the price of goods, sold and delivered to the defendants, in June, 1846. The only defence set up in the answer, was infancy. The plaintiffs, in their reply, took issue upon the infancy, and also averred, that if the defendant was an infant at the time of the sale, he falsely and fraudulently represented himself to be of age, and thereby induced the plaintiffs to sell, and deliver to him the goods.

The complaint was filed by John Haggerty, to procure the satisfaction of four bonds, secured by mortgages on the lands and property of the Allaire Works, in the city of New York, by a foreclosure of the mortgages, as follows : 1. Bond, by James P. Allaire, to the executors of G-. Smith, (and assigned in 1844 to plaintiff,) dated December 11,1824, for $11,000, and interest (raised from six per cent, to seven per cent, by agreement of Jas.

This was an action to recover the amount of two promissory notes, one for $294, the other for $222 18, given by the defendants to the plaintiff. The defence was a set-off for goods sold to the plaintiffs, as partners, composing the firm of Brahe & Co. The jury found a balance due to the defendants of $41 6, for which sum, with costs, judgment was entered in their favor.

This was an appeal by the defendant, from a judgment rendered at a special term, upon a verdict in favor of the plaintiff. The action was brought to recover of the defendant, as a common innkeeper, the value of a trunk and its contents, alleged to have been lost by his negligence, or that of his servants.

This was an action brought to recover a balance of account, alleged to be due from the defendant-, for the rent of certain premises, in the city of New York, and for marble, sold and delivered to the defendant.

This was an action for a libel, and that the points argued, and the decision of the court, may be properly understood, it will be necessary to give the pleadings. They are as follow : City and County of New York, ss.

This action was brought in the superior court, for the reco; very of William Malm’s share (one-half) of the proceeds of sales of 200 tons of iron, shipped by him in Gottenburgh, on board of the ship Christina, bound for New York, and of 100 tons of iron, shipped by him, on board of the ship Bohemia. Both shipments were consigned to the defendants for sale.

The bill in this cause, was filed in the late court of chancery,, on the 10th of March, 1847. It stated the following facts :— Edward Shaw was entitled to an equal, undivided sixth part of the estate of his grandfather, Robert Robinson, under the will of the latter.

The first of the above cases was argued before Justices Oakley, Mason, and Paine, at the October term, in 1851. The second case was argued before Justices Sandfokd, Mason, and Campbell, at the May term, 1851. Judgment was rendered at December term, 1851, affirming the judgment below in both cases, in accordance with the opinion of a majority of the five justices above named. The principles involved were the same in both cases.

<p>A written order upon a hank, for the'payment of a sum of money, upon a future fixed day, is a cheek, and not a bill of exchange, and is not entitled to days of grace.</p> <p>The law of the place, where an instrument of this kind is payable, is to govern, not only as to the time,- hut as to mode of presentment.</p> <p>So where an order was drawn in New York, upon a' bank in Connecticut, payable at a certain future day, and it appeared that, it was'the usage of that bank, and of the other banks in that state, to treat such orders, as payable on the day-named, without grace; held, that such usage constituted the law of the contract) and the order having been presented for payment on that day, and protested, that the endorser was properly and legally charged.</p> <p>(Before Duer, Campbell, and Paine, J. J.)</p>

This was an action brought against the defendant, as the endorser of four promissory notes, made by Joshua L. Carew, dated April 2d, 1849, payable to the order of the defendant, with interest from… Held: that notice to an endorser of a promissory note; that the note “ has been protested for non-payment, and that the holders look to him for payment of the same,” is not a sufficient notice of dishonor.

. This was an appeal, by the defendants, from a judgment for the plaintiffs, rendered at a special term, upon the report of a referee. The action was for a breach of the condition of a bond, given by the defendants to the plaintiff, in order to discharge an unnamed and unfinished ship or vessel, from a warrant of attachment, issued undér the provisions of the revised statutes (2 R. S. part 3, chap. 8, title 8).

John Lang, of the city of New York, died on the 17th of March, 1836, having made and executed his will, dated 9th February, 1824, whereby, after bequeathing certain legacies to his wife and his mother-in-law, Mrs. Ustick, he disposed of the residue of his estate as follows : Item.—All the rest, residue and remainder of my estate, both real and personal, whatsoever and wheresoever situate, lying and being, I give, devise, and bequeath unto my beloved children, Hannah Gamble…

<p>The widow of an intestate, in an action brought by the administrator for the recovery of a debt due to the estate, is a competent witness. The suit is not for her “ immediate benefit ”—within the meaning of those words as used in the code.</p> <p>A payment upon a bond or mortgage, made in good faith, to a son of the mortgagee, who is an attorney at law, and is in possession of the securities, is valid in law.</p> <p>The debtor, in such cases, has a right to believe that the son has the requisite authority from his father.</p> <p>But this presumption of authority ceases upon the death of the father, so that payments made to the son after that time, unless there is positive evidence of his right to receive them, are wholly void.</p> <p>Judgment at special term modified accordingly.</p> <p>(Before Sandfoed & Campbell, J. J.)</p>

. This was an appeal from, a judgment rendered at a special term in favor of the plaintiff, upon a demurrer to the complaint. . As the questions to be determined arose wholly upon the pleadings, it is deemed necessary to state them in extemo.

<p>G. & Co., commission merchants in London, employed H. D., one of the plaintiffs, as their agent in Florida, to procure for them consignments of cotton, and to enable him to make the necessary advances to shippers, they authorized him to draw either upon themselves or upon the defendants, merchants in Hew York, and they, at the same time, wrote to the defendants, requesting them to accept and pay such bills as might be drawn upon them by H. D., in conformity to his instructions, and promising due honor to such sterling bills as the defendants, for their own reimbursement, should draw upon them, G. & Co.</p> <p>Held, that there was no privity between the shippers of cotton, to whom advances were made by bills upon the defendants, and the defendants, so as to entitle the latter to an equitable lien upon the proceeds of the cotton, in the event of the dishonor of the sterling bills drawn by them, for their own reimbursement, upon G. & Co.</p> <p>Held, that the defendants, in accepting and paying the bills of H. D., acted neither as his agents nor as those of the shippers, but solely as the disbursing agents of G. & Co., the consignees by whom, through the defendants, the required advances were made.</p> <p>Held, that the contract of the shippers was exclusively with the consignees, and that when the latter, as they were entitled to do, retained a sufficient sum from the proceeds of sales to cover advances and charges, the surplus belonged absolutely to the former.</p> <p>Held, that if the defendants acquired any lien upon the .ground that the bills which they paid were drawn against the cotton shipped, and were paid upon the laith of the shipment, their lien was confined to that portion of the proceeds which the consignees were entitled to retain to cover advances and charges, and could not reach the surplus belonging to the shippers.</p> <p>Upon these grounds, held, that the fund in controversy, which was a surplus arising from the sales of cotton shipped by the plaintiffs, the advances upon which had been made through bills accepted and paid by the defendants, could not be applied to reimburse, pro tanto, the defendants, whose sterling bills upon the consignees, G. & Co., owing to the insolvency of the latter, had been dishonored.</p> <p>Decreed, that the fund which, by consent of the parties, had been deposited with the New York Life Insurance and Trust Co., should be paid over to the plaintiffs ; costs, the suit being in a measure amicable, equally divided.</p> <p>(Before Oaklet, Ch. J., Sandford <fc Duer, J. J.)</p>

This action was tried before the Chief Justice, in December, 1851, and a verdict taken for the plaintiff, for $800, subject to opinion of the court, at a general term. The pleadings and evidence establish the following facts.

The complaint states that Dorcas M. Remsen died August 1, 1849, intestate and without lawful issue, or any father, mother, brother; or sister, and at the time of her death was seized of the premises No. 150 Elizabeth street, of which she was first purchaser : that she left her surviving the plaintiff and Ann Eliza Price, children of her deceased sister of the whole blood, her only heirs.

This action was brought by Watson, to recover the amount of a note made by himself, and which, by the improper conduct of third persons, came to the possession of the defendant, who presented it at maturity, to the bank, where it was made payable, and received payment after notice of the misappropriation.

This was an appeal of two of the defendants from a judgment rendered against them at special term. The plaintiff sued as endorsee of a promissory note, endorsed to him, as administrator of the goods, chattels, &c., of John Bright, deceased, and in his complaint he described himself as such.administrator, but made no proferí of any letters of administration.

This was an appeal from a judgment at special term: the facts of the case are fully stated- in the opinion of the court.

This was an action on a case submitted by the parties, embracing the following facts : F. Kain being seized of the corner of Greenwich and Reade streets mortgaged it, and died. He left a widow, brother, and brother’s children. The plaintiff bought the interest of the brother in 1844. The owners hired it to the defendant from May, 1847, to May, 1848, at $550 per annum. The defendant paid up to February, but refused to pay the May quarter, for the following reasons.

This was an action of ejectment. It appeared that Francis Kain, being the owner of an undivided one-half part of premises situate the corner of Greenwich and Reade streets, mortgaged the same, and afterwards died intestate. . The undivided half of the premises claimed in this action, descended to his brother, William Kain, subject to the dower of the-widow of the said Francis Kain, and to the payment of the said mortgage.

The complaint of the plaintiff in this action, Louisa D. Kane, the wife of De Lancey Kane, one of the defendants, who sued by Alexander W. Bradford, as her next friend, alleged :—• That the plaintiff… Held: and to desist and refrain from interfering with the said real and personal estate, and every part thereof, and from molesting the said plaintiff in the enjoyment and use thereof: and for general relief.

This action was brought on a bond executed to the plaintiff, by Price, as principal, and the defendants as his sureties, conditioned to pay $9500, the rent, reserved in a lease made by plaintiffs to Price, for one year from May 1,1847, of the wharf-age of any of plaintiffs’ wharves in the North river, from the ferry to Hoboken, at the foot of Hoboken street, excepting certain specified docks and slips.

<p>Where the H. R Railroad Company has proceeded, in conformity to its charter, and the acts amending it, to vest in itself the title to land requisite to be taken in constructing its road, and the right to injuriously affect other lands, the assessment made, presumptively, embraces all damages of every kind, naturally consequent to the owner, upon those acts.</p> <p>The proceedings, assessment, payment of it, or a tender and deposit of the amount, are a bar to an action to recover such damages; if access to the river has been cut'off, but can be had by the means contemplated by § 16 of the act of 1846, and the company is in fault for not providing them, the remedy is by an action for neglect of duty, or to compel a performance; if it cannot be had by such means, and this was not foreseen, and the damages were not estimated, the remedy is an appraisal under § 28 of the same act. Whatever damages would naturally result to any rights of the plaintiff, appurtenant to the land taken, or injuriously affected, were in judgment of law foreseen by the appraisers, and included in their estimate; the plaintiff, as riparian owner, had no such title or right to the land below high water mark, as would enable him to maintain trespass for an entry on it, without his consent.</p> <p>(Before Sandeord, Duer, and Bosworth, J. J.)</p>

<p>A complaint must state the facts upon which the plaintiff relies, as establishing his right to maintain the action, not, instead of those facts, the inferences which the pleader may deem to be conclusions of law.</p> <p>It belongs to the court to draw the legal conclusions from the facts which are alleged to constitute the cause of action, and to enable the court to perform that duty, all those facts must be stated in the complaint.</p> <p>A pleading under the code must be so expressed as to be plain, that is, intelligible to those who understand the language, and hence the words are to be understood in their ordinary and popular sense.</p> <p>When a complaint alleges an overpayment, and claims judgment for the sum overpaid, the averment will be construed to mean an overpayment in money, and can only be sustained by proof of that fact.</p> <p>The satisfaction of a debt by the delivery of stock is not necessarily equivalent to a payment in money, computing the stock at par.</p> <p>The relief, to which a plaintiff may be entitled, who in such a ease has delivered by mistake, more stock than the defendant ought to have received, must depend upon the nature of the transaction, ns a settlement by compromise, or full satisfaction, and upon the value of the stock, at the time, or when its return was demanded.</p> <p>Hence to enable the court to judge of the relief that ought to be given, the transaction, in all its material circumstances, must be set forth in the complaint.</p> <p>Judgment dismissing complaint, affirmed, with costs.</p> <p>(Before Sandfokd, Duer, and Bosworth, J. J.)</p>

The plaintiffs, from time to time, sold merchandise to defendant.

This was an appeal from a judgment at a special term, and a motion for a reversal, and a new trial, was now made, founded upon a bill of exceptions. The action was for the breach of a contract, by which the defendant held and agreed to deliver to the plaintiff, at a certain price to be paid on delivery, 200 salted hides. The defendant, in his answer,- alleged that no written contract had been delivered, and that the agreement, if any had been made, was rescinded.

, On the 31st of January, 1848, the plaintiff shipped at New York, in good order, a quantity of merchandise, on board of a barque called the TJndine, belonging to the defendants, bound for California and Oregon.

This was a motion for an injunction, to restrain the New York & Erie Railroad Company, from erecting .buildings upon a piece of ground in the city of New York, lying west of Washington street, between Reade and D.uane streets, which had been recently leased to them by the mayor, aldermen, and commonalty.

<p>Where the maker and endorser of a note are sued, and put in a joint answer, it must be verified by both, or it will be stricken out as to the party not verifying it. They are not “ united in interest,” so that a verification by one will- be sufficient for both.</p> <p>Judge Sandfobd concurred.</p>

<p>The title of a receiver exists, by relation, from the date of the order directing his appointment.</p> <p>(Before Oakley, Dues, & Boswokth, J. J.)</p>

The complaint was filed to set aside certain securities and agreements held by the defendant, upon the ground that they were all intended to cover usurious loans ; and an injunction Order, founded upon the complaint, had been issued, restraining the defendant from enforcing, or attempting to enforce the. payment of any of the securities, or the performance of any of the agreements so impeached.

The complaint alleged as follows:— That by an act of the legislature of the state of New York, passed at a session of the legislature held… Held: and the beforementioned members of the said committee of management, whose term of office expired on the said Friday next before Christmas, 1851, and the said officers of the said association, whose term of office expired on the Monday next after the Friday next before Christmas of the year 1851, have not, nor have either of them,…

The complaint alleged that the defendant, on the 30th day of April, 1851, made and entered into a contract with the plaintiff, as follows: Mr. Beale agrees to pay Miss Catharine Hayes, for a period of five months, commencing in the month of September next, or so soon after as circumstances will admit, to play in America and Ireland, in the following operas, namely : La Sonnambula, Lucia de Lammermoor, Linda, Lucrezia, Don Pasquale, L’Elisir d’Amore, I Puritani, and Norma,…

<p>In an action upon a promissory note, a denial in the answer, that the plaintiff is the lawful owner and holder, without alleging a title in a third person, will be • struck out as irrelevant and frivolous.</p> <p>So it is also a frivolous defence, that when the note was given it was agreed that it should be renewed upon request.</p>

A bill was filed in this suit, anterior to the code, by the plaintiffs, to charge the defendant as trustee under a will. The plaintiffs claim as representatives of the cestui que trusts, and each a separate interest in the trust estate. The plaintiffs, Charles A. Williamson & wife, died in May, 1849 ; Rupert J. Cochran, in July, 1851, and Isabella M., his wife, in September, 1851. The heirs of the deceased complainants were numerous.

<p>Under § 15*1 of the code, a pleading may he verified during the absence or incapacity of the party by his attorney or other agent, and state only his information and belief</p>

<p>Under the code an order for the sequestration of the property of a judgment debtor, no longer necessary.</p>

This was an ex parte application for a further stay of proceedings on the expiration of a prior order granting a stay for twenty days. The attorney making the motion, relied on the case of Livingston v. Wilkes, 1 Code Rep. N. S., p. 10.

This was an application, on the part of the defendants, to strike out certain parts of the complaint. The parts proposed to be stricken out, were specified in the notice, but the grounds of the motion were not stated. The time for answering the complaint expired on the 30th of July, and on the 27th of July, the defendants obtained an order extending the time to answer for thirty days, but the order contained no enlargement of the time for making this or a similar motion.

<p>An ora'er, aenying an application for an allowance, under the § 308 of the code, is not an appealable order.</p> <p>(Before Oaklet, Campbell, and Paine; J. J.)</p>

<p>Motion for consolidation of suits, or stay of proceedings.</p>

<p>In religious corporations, the church property, real and personal, is vested in the trustees, and the use of the property, and the employment of the minister, ought to be sanctioned by them.</p> <p>It is the right of the trustees to withhold their assent when there is reason to believe that the employment of an individual, as minister, though selected by a majority, would destroy the peace and harmony of the church.</p>

<p>Where several importers own the real estate where the business is carried on, each owning a part in severalty, and where the copartnership have erected buildings and made improvements on the lands, on a dissolution of the partnership, and appointment of a receiver the lands will be treated as forming a part of the partnership assets.</p>

This action was brought against Johnson as maker, and Roberts, as endorser, of a note. The former appeared by attorney, and the latter in person. The complaint was served on the 28th of January, 1852. Plaintiff's attorney extended the time to answer, on different occasions, the last one expiring April 11th, 1852.

Oct. 19.—The following petition was presented to the judge holding the special term : The application of the undersigned John Ja.y and Thomas W. device, acting commissioners duly nominated and appointed by the Court of Queen’s Bench, in the kingdom of Great Britain, with full power and authority to examine, cross-examine, and re-examine certain witnesses, at the city of New York, as well on the part of John Henry Wardwell, the plaintiff, as on the part of Thomas Frederick…

On the 8th of November, 1852, a petition was presented to Mr. Justice Paine, praying for a writ of habeas corpus, for the production of eight persons of color, a man, aged about eighteen, two women, of about the same age, each with a young infant, and three children. The petition stated, that these persons arrived at this port, from Virginia, in the steamer City of Richmond, whence they were taken to a boarding house, No. 3 Car-' •lisle street.