Volume 52 — Howard's Practice Reports

This is an action for the construction of the will of Anne Morris, deceased, late of .the county of Kings, and for the partition of her real estate in the event that the devise made thereof should he held void. The testatrix made a will in the year 1867 in which she made an attempted disposition of the real estate in question; and afterward, and in the year 1871, she made another will by which she sought to revoke the will of 1867.

Motion to vacate an order of arrest. The complaint alleged that the defendant, on the 8th day of July, 1876, maliciously intending to injure the plaintiff in his good name and otherwise, and without reasonable or probable cause, procured and caused to be served a summons from the “ justices’ court of the city of Albany,” directed to the defendant, .returnable on the fourteenth day of July, then instant, to answer said Lepp for debt, damages §200 or under.' On the return day,…

Appeal by the defendant from a judgment for $102.76, besides costs and extra costs, rendered in favor of the plaintiff by the- second district court of the city of New York.

Demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action, and that the plaintiff has not legal capacity to sue.

, referee, in and by which he found the following facts: First. That on the 18th day of May, 1872, Patrick Flanagan was adjudicated a bankrupt at the city of New York, in the district court of the United States for the southern district of New York, and that on the 12th day of July, 1872, the plaintiff was duly elected assignee of said bankrupt pursuant to the provisions of the United States bankrupt act. Second.

<p>Demubbeb to complaint.</p>

The parties in this suit, some forty in number, were members of a mutual benefit association or copartnership which was organized in 1842, under the name of “Washington Tent Ho. 1, Independent Order of Rechabites,” the objects of which were “ mutual benefit in the exercise of temperance, fortitude and justice, securing to its membership sympathy and relief in times of sickness and distress, and in the event of death the decent observance of the necessary funeral obsequies;…

marine court of the city of New York affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury.

<p>Motion by defendant to set aside execution and levy.</p>

<p> When corporation a necessary party to an action against its president, trustees or directors. </p> <p>To an action brought by a stockholder against the president, trustees or directors of a corporation for an alleged conversion or misappropriation by them of corporate property, the corporation itself is a necessary party (Affirming S. C., 49 How., 79).</p>

<p>Partition of lands — adverse possession—jury trial.</p> <p>In order to enable a party to maintain an action for the partition of lands, he must not only have an estate in the premises, as a joint tenant, or tenant in common, but he must be in the actual or constructive possession of his individual share or interest.</p> <p>Where the premises are held adversely, the party out of possession cannot try the question of title in this form of action. It is a question for the determination of a jury.</p>

<p> Reformation of a written instrument—what necessarry to be shown. </p> <p>It is necessary, to entitle a party to a decree of a court of equity reforming a written instrument, for him to show first a plain mistake clearly made out by satisfactory proofs.</p> <p>In the second place he must show that the material stipulation which he claims should be omitted or inserted in the instrument, was omitted or inserted contrary to the intent of both parties, and under' a mutual 'mistake.</p> <p>The burden of proof is upon the plaintiff, and before undertaking to alter the terms of the agreement as signed by the parties, the court should be satisfied beyond any reasonable doubt that the plaintiff has made out his case.</p>

On the application of Eugenie Barber Barnett, the mother of a bastard child, named George Samuel Barnett, aged five years, the supreme court granted a writ of habeas corpus to obtain possession of said minor child from David Barnett, its putative father. Beturn was made charging gross improprieties on the part of the petitioner, to which a traverse was filed denying the charges, and making countercharges against respondent.

<p>Arrest — discharge from—how obtained—supersedeas.</p> <p>The proper remedy for the discharge of a person held in custody, after a surrender or delivery of his hail, and after the statutory time' .has elapsed in which he must he charged on execution, is by supersedeas (2 R. S. [Edm. ed.], p. 577, sec. 37).</p> <p>The time within which a defendant must he charged on execution, before a supersedeas can he moved for, is to he computed from the time the judgment is actually entered, not from the time the plaintiff is entitled to judgment.</p> <p>Any evidence of the entry of judgment three months prior to the application for the supersedeas or of a failure to charge the defendant in execution three months after the surrender, is sufficient, and where such proof is furnished and not denied, the defendant must he discharged.</p>

<p>Appeal from judgment on verdict directed by the court.</p>

Motion by defendant to vacate order of arrest, on the sole ground that Rule 6 of the general rules of practice of this court was not indorsed on the order before its delivery to the sheriff.

<p>Common carriers — verbal agreement—not merged in bill of lading—power to limit their liability.</p> <p>Where goods are shipped under a verbal agreement for their transportation, such agreement is not merged in a bill of lading, which is partly written and partly printed, delivered to the shipper after he has parted with the control of his goods, notwithstanding such bill of lading, by its terms, limits the liability of the carrier, and expresses, on its face, that by accepting it the shipper agrees to its conditions. The mere receipt of the bill, after the verbal agreement had been acted upon, is not sufficient to conclude him from showing what the actual agreement was, under which the goods had been shipped.</p> <p>When the contract for transportation is over the lines of several distinct and independent companies, it is perfectly competent for those companies to limit their liability by contract as expressed in the bill of lading.</p> <p>Where a bill of lading contained a provision in substance that no connecting carrier should be held liable for any loss or damage to goods, except what occurred on its own route, and it was shown, by proof, that the damage occurred after the defendants had delivered the goods safely, and in good time, order and condition to a connecting company or carrier, any right of action which may have accrued to the plaintiff does not exist against the defendants.</p>

<p> Marine court—jurisdiction. </p> <p>The marine court has jurisdiction of actions where the amount recovered does not exceed $2,000. It does not matter what is the amount claimed, if the sum finally recovered does not exceed $2,000, exclusive of costs.</p>

An’ application was made to punish Mr. Jones, the publisher of the New York Times, for alleged contempt in not appearing to be examined as a third person under section 294 of the Code, as to whether he had any property of the defendant Lee, a judgment debtor. The application was made by Albert Day, the creditor, in person. He had examined Lee in supplementary proceedings, and-ascertained that he was or had been an employe of the Times on a weekly salary.

<p> Partition—motion to set aside a judgment in partition, and for a new partition restoring equality in the original partition, which has been lost, by failure of the title of the ancestress—proper remedy in such case. </p> <p>In case of a compulsory partition between tenants in common, and the failure of title to a portion of the land partitioned by a defect in the common title, and eviction from such portion, the party so evicted has a right to be compensated for the loss occasioned by the eviction out of the other lands, and perhaps, in case of a failure of the other lands, by reason of alienation by the copartitioners, leaving the remaining partitioned lands insufficient, to a pecuniary compensation from the proceeds of the alienated lands, which may result in a personal decree.</p> <p>It seems that in a case where the partition was recent, and no change had occurred by which the value of the lands partitioned was materially affected, and there was no other claims or equities between the parties which ought to be examined or adjusted, the proper remedy might be by a motion to set aside the judgment in partition, and to have a new partition restoring equality of partition, in view of the new facts.</p> <p>A final judgment in partition is not more exempt from the interference and controlling of courts of equity than are final judgments and decrees in other cases. Hence, such a mistake of facts, or such an accident as would authorize a court of equity, in enjoining or setting aside an ordinary judgment, would justify setting aside or correcting a judgment or decree in partition. And, in a proper case, where no extrinsic circumstances were to be considered, a remedy by motion might be adopted.</p> <p>But where the judgment in partition was entered more than ten years ago, and the parties then entered into the possession and the pernancy of the rents, issues and profits of the various premises to them respectively set off in severalty, the partition involving many distinct parcels, differently situated and of different values, and many parcels of the land divided were subject to known incumbrances, the partition being a long and intricate proceeding, and involving, to a great extent, the judgment and discretion of the commissioners, one of whom has since died, and it is claimed by the copartitioner, though denied by the plaintiff, that all the land which was set off to him has passed beyond his possession or control by foreclosures of previous incumbrances and by various alienations :</p> <p>Held, that these facts afford a sufficient reason for denying summary relief by a motion in the original partition suit, and show that the various questions likely to arise should be presented and passed upon in a more formal manner, especially where the rights of third parties appear to have intervened, and their titles are to be brought in question. It seems that the proper remedy in such case is by a new action, in the nature of a bill of review, and, in such a suit, the further alienation of the property partitioned to the copartitioner might, if necessary, be restrained by a notice of lis pendens, or an injunction order, and after examining and disposing of all questions, whether of fact or law, bearing upon the equitable rights of the parties, a decree might be made for a repartition, if the situation of the premises should be such as to render that course practicable without injustice; if not, then such other equitable relief might be given as the situation of the parties and property might seem to require.</p>

<p> City railroads—their liability to pay a license fee—complaint. </p> <p>By an ordinance of the common council, duly enacted and passed the 31st day of December, 1858, it is required, that each and every passenger railroad car running in the city of New York, below One Hundred and</p> <p>Twenty-fifth street, shall pay a license fee of fifty dollars, except the small one-horse cars, which shall each pay twenty-five dollars annually as such license. The defendant has operated and controlled its railroad, by virtue of an act of the legislature passed April 17th, 1360 (Lams of 1860, chap. 515), the second section of which provides, that "said railroad * * * shall be subject to such reasonable rules and regulations in respect thereto, as the common council of the city of New York may, from time to time, by ordinance prescribe, and to the payment to the city of the same license fee annually for each car run thereon, as is now paid by other city railroads in said city.”</p> <p>Held, that the liability of defendants does not depend upon the fact that the other railroads have actually paid their license fee into the city treasury, but upon the fact that they were required and legally liable to pay such fees; that the statute should be interpreted as if it read “and to the payment to the city of the same license fee annually for each car run thereon as is now required to be paid by other railroads in said city.”</p> <p>Although there is no distinct averment in the complaint that the other railroads in the city of New York, at the times mentioned in the complaint, were actually paying to the city the amount prescribed by the ■ ordinance alleged in the complaint, or any sum whatever, it is not for this reason defective.</p> <p>It is perfectly competent for the legislature to validate an invalid ordinance, and, although there seems to be some doubt as to the power of the common council to pass such an ordinance as that of 1858, it being an ordinance for revenue purposes only and not for police and internal government, still, the legislature, by the act of 1860, under which the defendants acquired their right to run cars through the streets, recognized the validity of the ordinance of 1858.</p>

The plaintiff sued to recover $13,259.35 for horseshoes, &c., claimed to have been sold to the defendants, and judgment was entered for this sum. The defendants moved to vacate the judgment on the ground that it was entered after the removal of the case to the United States circuit court, under the act of congress of 1875, authorizing such removal where litigants reside in different states.

Defendant was sued on his liability as trustee of a corporation, under section 12 of the “ manufacturing and mining law” (chap. 40, Laws of 1848). It was admitted, by the answer, that defendant was such trustee, and'that no report has been filed, as required by said section.

<p>Motion to set aside subpoena duces tecum, issued on the examination of defendant as a witness before trial pursuant to sections 390 and 391 of the Code.</p> <p>This motion was argued on an order for - the plaintiff to show cause why the “subpoena duces tecum” previously served on the defendant, should not be set aside and vacated, with costs. The plaintiff’s proceedings were for an examination of the defendant as a party before trial, pursuant to sections 390 and 391 of the Code. The defendant had been served previously with the notice, order, and summons for Ms examination, together with the subpoena duces tecum, and the affidavit of plaintiff’s attorney, on which the order and summons had been obtained, stating that the examination of the defendant was necessary before the plaintiff could safely proceed to trial, and stating in what respect such examination was necessary.</p>

<p> Assessments for sewers in city of New York, when void. </p> <p>By the act of April 12, 1865 (Laws of 1865), the construction of any sewer or drain in the city of New York is absolutely prohibited, unless such sewer or drain shall be in accordance with a general plan devised by the Croton board for the sewerage of the particular district in which such sewer or drain is proposed to be constructed.</p> <p>An assessment for a sewer contracted for before such a general plan has been devised, is void.</p> <p>It seems, that the provisions of section 4 of the act as to the filing of the copies of maps and plans in the different offices designated by that section, has been held to be directory only (See Matter of The N. Y. Prot. E. Public School, 47 N.Y., 556).</p>

<p>Motion to vacate attachment.</p>

Motion by the plaintiff to set aside an order granted hy judge Sawyer (1), “ for the reason the same is unauthorized, and grants a positive stay for twenty days; (2), and that the same be vacated and set aside, with costs, or for such other or further relief as the court may see fit to grant.” The defendants suggest that the motion is made without service by plaintiff of the affidavit on which the county judge granted the order.

„ This action was brought to recover the contract-price of a large quantity of butter sold and delivered by the plaintiff to the defendant. The latter, who is by occupation a cake baker, among other defenses set up a breach of contract and a breach of warranty.

Both the plaintiff and the defendant are corporations deriving their existence and attributes from the acts of congress known as the national bank acts. This is a motion to vacate an attachment granted in violation of section 5242 of the Revised Statutes of the United States recently enacted.

The relator is the owner of premises fronting on Bloomingdale road, between One Hundred and One Hundred and First streets in the city of New York, which road was closed by the Central park commissioners under chapter 697 of the Laws 1867. The board of assessors having refused to allow him the damages sustained by such closing, application was made for a peremptory writ of mandamus to compel the board to act.

<p> Contract for lolly services—for personal influence with members of the legislature or other official body, illegal and void. </p> <p>A contract for lobby services, for personal influence, for mere importunity, to members of the legislature or other official body, for bribery or corruption or for seducing or influencing them, by any other arguments, persuasions or inducements than such as bear directly and legitimately upon the merits of the pending application, is illegal and against public policy and void.</p> <p>It is not necessary to adjudge that the parties stipulated for corrupt action, or that they intended that secret and improper resorts should be had. It is enough that the contract tends directly to those results.</p> <p>Where the defendant’s claim required the passage of an act of congress before it could be paid, the plaintiff, in substance, agreeing to collect that claim, and as a part of the service to be performed by him agreed to procure the passage of an act of congress, also agreed to importune and solicit, and in fact did importune and solicit,, various members of the house of representatives ; that he brought not only his personal influence to bear upon such members to secure the passage of the act, but also brought the personal influence of others to bear upon them to that end and for that purpose:</p> <p>Held, that the claim was void as against public policy.</p> <p>Held, also, that although the plaintiff sues upon an agreement made after the passage of the act of congress was procured, the consideration of the agreement, or a part of the consideration, was the service rendered by the plaintiff in procuring the passage of the act. The previous agreement as to those services being void as against public policy, the execution of a new agreement or a subsequent promise to pay for such services does not better the plaintiff’s position.</p>

Plaintiff is a physician and surgeon, residing and having his office in New York city. In June, 1872, he was driving down Fourth avenue, visiting his patients, and shortly before reaching Eighteenth street he drove up near the curb-stone on the right-hand side of the avenue, and stopped.

<p>Deed of real estate reserving certain property so situate as to he a part of the realty, with the privilege of removing same within a specified time — effect of such exception.</p> <p>In a deed of real estate a reservation or exception of certain property upon the land so situate as to he a part of the realty, with the privilege of removing the same by a certain time, reserves no title in the grantor to the property so reserved, if not removed within the specified time.</p> <p>In 1865 Regal M. Torrey, being the owner of a certain tract of land in Seneca county, conveyed the same to one Henry 0. Spaulding, by deed which contained the following clause: “ Excepting the beds or deposit of marl lying on both sides of the new cut for the Canandaigua river, which passes through said land, and it is an express stipulation and agreement between the parties hereto, that the said marl may remain on said land for a period of ten years from the date of this indenture,' and that the party of the first part may, at any time within said ten years, remove a part or the whole of said marl.” In 1867 Torrey, by bill of sale, conveyed the marl to Henry A. Barnum, under which bill of sale the plaintiffs claim. The defendants claim under the deed to Spaulding. Torrey died in 1870.</p> <p>Held, first, that the exception in the Spaulding deed existed only in favor of Torrey, the grantor, and terminated with his life, if it did not expire with the ten years.</p> <p>Second, that the exception was only of so much marl as Torrey might remove in ten years, and not-of the entire quantity, if unremoved at the expiration of that period. All that was unremoved when the ten years had expired passed by the deed.</p>

This case was first heard at special term, before Mr. justice Bockes, on the motion alluded to in the opinion. The following opinion was delivered at special term. On appeal to the general term, third department, the order was affirmed on the opinion at special term. An appeal was then taken to the court of appeals, when the order appealed from was also affirmed, as reported, “ on opinion of Bockes, J., below ” (55 N. Y., 673).

<p> Trade mark—when the use of an, individual’s name attached to a theater or public building will not be restrained by injunction as being in the nature of a trade mark. </p> <p>Where the plaintiff executed a release of his theater which he had built corner of Sixth avenue and Twenty-third street, in the city of New York, and which he called “ Booth’s theater,” to Junius B. Booth ; he afterwards assigning his lease to the defendants, the premises in both instances being designated as “Booth’s theater;” the plaintiff also executed several mortgages in which the premises are described by metes and bounds, to which description is added the words “being the premises known as Booth’s theater in the city of New York;” under a foreclosure of one of the mortgages, the receiver duly appointed in the foreclosure proceedings by direction of the court, executed an agreement by which the defendants were accepted as tenants “of the property known as Booth’s theater,” and since this agreement, up to the present time, the defendants have been carrying on the theatrical business at said theater, designating the same as “ Booth’s theater,” but representing themselves as the lessees and managers:</p> <p>Held, that the plaintiff was not entitled to an injunction, to restrain the defendants from using the name “Booth” in connection with the theater heretofore known as “ Booth’s theater,” of which the defendants are the lessees.</p> <p>Held also, that the plaintiff, by his acts, has affixed his name to the theater, so that his grantees and their.successors have the right to call this building “Booth’s theater,” the name which he has given it.</p>

<p>Motion by plaintiff to confirm a referee’s report and for judgment or other relief.</p>

<p> Examination of parties who are made defendants before tnial—what affidavits must contain on which to found the order. </p> <p>The examination of parties who are made defendants in expectation or hope that upon their examination some cause of action may thereby be discovered against them or against any co-defendant, will not be allowed where no cause of action is shown by affidavits to exist against them in favor of plaintiffs.</p> <p>Affidavits on mere information and belief, not stating any of the evidence upon which such belief is founded,- are wholly insufficient for. such purpose.</p> <p>The distinction between an affidavit and complaint pointed out.</p>

Motion to change the place of trial from Kings county to some other, on the ground that a fair and impartial trial cannot be had therein.

On the 26th day of January, 1876, the plaintiff entered into a contract with the defendant for the sale of certain premises in the city of New York, at the price of $26,000, to be paid as follows : $2,000 upon the signing of the agreement, $6,000 by assuming a mortgage upon the premises, and $18,000 in cash on the 15th of February, 1876, when the deed was to be delivered.

<p> New trial—Newly discovered evidence—Surprise. </p> <p>To furnish adequate ground for a new trial, on the ground of “ after discovered evidence,” the same must have been discovered since the trial, and have been out of the parties’ power, by diligence, to have been discovered before.</p> <p>The want of recollection of a fact, which by due diligence and attention the party might have remembered, is not ground for a new trial.</p> <p>In order to the granting of a new trial on the ground of surprise, the material point, in respect to which the surprise is alleged, must have been of a nature that it could not have been anticipated, and there must have been no want of skill, care or attention.</p>

Motion by plaintiffs to restrain the defendants from issuing bonds of the city of Albany to the amount of $185,000 — pursuant to the provisions of chapter 445 of the Laws of 1876.

Adam Muller died seized of certain real estate in the city of New York, leaving a will, by which he devised to his four children, Maria, wife of Charles Struppman; Bertha Muller, Auguste Muller and Louis Muller, his real estate. After testator’s death, Bertha married Thomas H. Young, one of the defendants.

<p> Trade mark—when injunction to restrain the use of a person's own name as a trade mark will not be allowed,. </p> <p>A defendant will not be restrained by injunction from the use of his own name, which he has caused to he registered and recorded as a trade mark in the patent office, on motion of a plaintiff by the same name and engaged in the same business, unless it plainly appears that it was obtained for the purpose of deception, or with a view to mislead the public or injure the plaintiff.</p> <p>It seems doubtful whether in a collateral proceeding the court is empowered to restrain a party from the use of a trade mark, awarded to him in the established course of procedure, by the commissioner of patents. Where the answer and affidavits of defendants thoroughly and completely deny the whole equity of plaintiff’s case, as set forth in their complaint and affidavits, and thoroughly rebut all charges of evil intent and improper design in obtaining the trade mark, an injunction will not be granted.</p> <p>It seems that it is improper to grant a preliminary injunction, except in cases where the injunction is absolutely necessary for the protection of the plaintiff’s rights and the furtherance of justice.</p>

<p> Surrogate —jurisdiction, how and when acquired. </p> <p>The statute requires that before any surrogate shall take any proceedings to try any issue raised upon the probate of a will, he shall cite all persons interested to appear before him; but there is nothing in the statute to indicate that after he has obtained jurisdiction by the service of a citation upon some of the persons interested, that that jurisdiction shall not continue until the proceedings are terminated.</p> <p>The service of a citation upon one of the parties interested, gives to the surrogate issuing it, if regularly issued, jurisdiction of the proceedings until completed.</p> <p>It is not necessary, in order that a surrogate should acquire jurisdiction to try the question of inhabitancy, that citation should be issued and served upon all the, parties entitled to notice of the propounding of a will for probate and proceedings had upon the return day of such citation.</p> <p>The surrogate of the county whose citations were first issued and served upon a proper application being made, acquires jurisdiction to try the question of inhabitancy.</p> <p>Where the will of deceased had been presented for probate to the surrogate of the county of New York, said surrogate by the issuance and service of citation upon one of the interested parties having acquired jurisdiction to try the question of the residence of deceased, afterward a certain other paper purporting to be the last will and testament of deceased was presented for probate to the surrogate of Saratoga county, and thereupon the said surrogate issued citation to the heirs at law and next of kin of deceased, and on'the return day, upon objection being made to his jurisdiction, on the ground, among others, that deceased was at the time of his death a resident of the county of New York, which objection was overruled by said surrogate, and he proceeded to try the question of the residence of deceased; whereupon a writ of prohibition was issued out of this court, prohibiting the surrogate of Sara toga county, from proceeding in the matter of the probate of said will. On demurrer to the return:</p> <p>Held, that the return to the writ of prohibition was insufficient unless it contained a positive allegation that the deceased resided in Saratoga county at the time of his death.</p>

<p>Demurrer to answer.</p>

Action to recover damages and abate a nuisance. The case by consent of parties was referred. A trial was had before the referee; he allowed the time for making his report to expire, not having decided the matter, alleging' as a reason for such delay that he did not know how to decide the case.

Motion by defendant for an extra allowance of $2,500, or five per cent on amount claimed as damages. The action was commenced by plaintiff in the county of Kings to recover of defendant the sum of $50,000 for alleged malicious prosecution. The place of trial was subsequently changed on application of defendant, by a decision of judge Westbrook, to Delaware county, whereupon the plaintiff discontinued his action.

<p> Highways—duty of commissioners—their liability for damages for injury from bridge built across highway by railroad company. </p> <p>It is the duty of commissioners of highways of towns to keep in repair the highways of the town, and as they and the inhabitants of the • town are empowered to raise the necessary means for such purpose, in an ordinary case of a highway out of repair, and injuries resulting therefrom, the town through its commissioners should be held responsible.</p> <p>A railroad company organized under the general statute of this state is required in crossing a highway to restore the highway thus crossed to its former state, or to such state as not necessarily to impair its usefulness.</p> <p>And where it becomes necessary for such company to dig a trench across a highway for the construction of its railway, which is bridged to keep up the highway, the railroad company are bound to continue such bi’idge in repair as long as the highway exists, and the corporation is allowed to enjoy the lawful exercise of its franchise. The duty in such case must be an ever continuing one.</p> <p>The remedy against commissioners of highways of a town depends upon their neglect of duty, and where the law had permitted a railroad company to excavate the highway, so that it needed to be bridged, and had also imposed upon such corporation the duty of keeping such bridge in repair, the neglect of which duty by the company, and not neglect by the commissioners, caused the injury, held, that the commissioners were not responsible. In such case the liability of the town ceases.</p> <p>Held, also, that the act of 1855, entitled “ an act to enlarge the powers and duties of commissioners of highways ” (chap. 355 of Laws of 1855), which enables the commissioners to sue and recover such damages as the town is compelled to pay by reason of the non-performance of duty of a railroad company, does not alter or increase their responsibility, so as to render them liable for damages, where they were not so liable, previous to the passage of this act.</p> <p>It seems, however, that where commissioners of highways have been, as in this case, exceedingly remiss in the discharge of their official duties, there is a remedy against them by trial and punishment by indictment.</p>

<p>Execution against the person — when will he moated.</p> <p>A defendant in an equitable suit is not liable to imprisonment or final execution unless it appears by the complaint that the cause of action is-one which falls within section 179 of_the Code, or where the court has upon an affidavit stating extrinsic facts, granted an order of arrest.</p> <p>The uniting of a cause of action for which a defendant could be arrested, with one for which he could not, entitles him to have the execution against his person vacated and set aside. The union of the causes of action amounts to a waiver of the right to an arrest, and also to a waiver of a right to an execution against the person.</p> <p>On a motion to vacate an execution against the person, the findings of the justice at special term cannot be considered for the purpose of upholding the execution. If the complaint does not show a right to arrest, or if it shows that such right has been waived by an improper blending of two causes of action, in the absence of an order of arrest, final execution against the person cannot be resorted to.</p>

Oh the 21st of October, -1872, the defendant, Claussen, made his bond, whereby he promised to pay to the defendant Schlesinger the sum of $2,45.0, on November 1, 1874, with interest at seven per cent, payable semi-annually, on the first of November and May in each year; with the provision that should default be made in the payment of interest, and should the same remain in arrears for thirty days, the whole amount of the said bond should, at the option of the party of the…

Proceedings on habeas corpus by Alfred Smith to obtain the custody and care of the above named parties, who are infants under the age of sixteen years, and who, also, were committed on the 9th day of September, 1876, by the recorder of the city of Poughkeepsie, under chapter 124 of the Laws of 1876, to the care of the New York Society for the Prevention of Cruelty to Children.

<p> Nuisance—noise produced by machinery—steam whistle—injunction. </p> <p>The business of cutting and polishing marble by machinery or otherwise is not pm' se a nuisance, and an injunction will not lie at the suit of an adjoining house-owner to restrain a party from the continuance of such business.</p> <p>Noises are not ex necessitate nuisances, even when disagreeable ; and it is only when they are of a character so objectionable as fairly to come within the meaning of that significant term that a court of equity will interfere to repress or restrain them.</p> <p>Noise, to constitute a nuisance, must be unusual, ill-timed or deafening.</p> <p>It seems that the use of a steam whistle, which is unnecessary to the successful prosecution of a business, may be designated as a nuisance, and its use may be restrained by injunction.</p> <p>The proper rule, in cases like the present, would seem, to be: That, in the enjoyment of his own land, one must be confined to such reasonable use thereof as will not inflict injury on his neighbor or interfere with his neighbor’s reasonable enjoyment, and must submit to such inconveniences as necessarily result from the reasonable use and enjoyment by his neighbor of land belonging to him.</p>

Motion to strike out the testimony of the defendant contained in the supplementary proceedings, and to dismiss proceedings. The plaintiff, as receiver, in supplementary proceedings in an action (Peter Morris et al. agt. Selah Hiler) commenced an action in this court to set aside an assignment from one Selah Hiler to defendant Dusenbury, as trustee, as fraudulent, and to recover a personal judgment against him for the amount of the original judgment, in Morris et al. agt.

<p>Appeals from judgments of a justice of the peace upon claims under the mechanic’s lien law.</p>

<p> Pleading—demurrer—answer—amendment. </p> <p>After the service of a demurrer any time before the expiration of twenty days, it may be substituted by an answer as an amendment.</p>

This cause was heard at the first department, May general term, 1876, before Noah Davis, P. J., Chas. Daniels and Abm. E. Lawrence, JJ. The facts fully appear in the opinions.

On or about the 31st day of October, 1872, an ordinance was adopted by the common council and approved by the mayor, directing that- Madison avenue, from Ninety-ninth street to One Hundred and Fifth street, be regulated, graded, &c. The relator was the lowest bidder for the work. His estimate or proposal was accordingly accepted by the commissioner of public works who notified him of such acceptance.

Petitions were presented to the surrogate of Albany county, for letters of administration upon the estate of Peter Gooseberry, ■ deceased. One petitioner, Helen Simpson, claimed to be the aunt of deceased, and desired Marshal Tebbett to be associated with her in the administration of the estate. Another petitioner claimed.as cousin of deceased. The other petitioners were creditors.

<p>Action to have a legacy declared a lien and charge upon certain real estate.</p>

This action was commenced on the 18th day of November, 1874, by the service of the' summons, and an order to show cause why a receiver should not be appointed, the latter being returnable December 1,1874.

<p>The action is brought against the defendant, who is a surgeon, to recover damages for an alleged unskillful operation performed by him on the body of the plaintiff, who is a child of about seven years of age.</p> <p>The complaint alleges that the defendant was employed, in his capacity as surgeon, to treat the plaintiff for a swelling and injury in the neighborhood of one of her hips; that he performed an operation on the person of the plaintiff, but did it so negligently and unskillfully as to puncture the joint of the plaintiff, causing the synovial fluid which lubricates the cartilaginous surface of said joint to escape, thereby seriously and permanently injuring the hip, rendering the whole leg useless and permanently lame, and perhaps rendering necessary an amputation of the leg, at the risk of plaintiff’s life. Damages to the amount of $20,000 are asked for.</p> <p>The defendant, by his answer, alleges that plaintiff was suffering from an abscess on her body near one of her hips, which he, about March 10,1868, operated on in a careful and skillful manner, and immediately after the operation carefully and skillfully bandaged and dressed the affected part, and denies all the allegations of negligence and unskillfulness contained in the complaint; and then sets up that, whatever injury may have come to the plaintiff since said operation, it was caused by the negligence of the plaintiff and her parents in not returning the plaintiff to the defendant, as requested, for further medical treatment.</p> <p>The defendant now, upon the complaint and answer, and upon a petition setting forth that this action was commenced August 21, 1868; that plaintiff is a child about seven years old; also setting forth the substance of the contents of the complaint, and reiterating the matters contained in the answer; also setting forth that plaintiff’s counsel alleges that this action is based upon the certificates of surgeons as to the" injury; that since the commencement of this action he and his assistants have endeavored to obtain leave to make a professional examination of the affected part of the plaintiff, but have been refused permission so to do by plaintiff’s parents; that he verily believes that it is requisite and absolutely necessary, for the proper defense of this action, and to properly protect his good name and fame in his profession, that a personal inspection and professional examination of the affected parts should be had by him and such other eminent and skillful surgeons as he may deem necessary, and that without such personal inspection and examination he cannot properly defend this action nor safely proceed to trial, and praying that said examination and personal inspection by him and such other skillful and eminent surgeons as he may name may be had, under the direction of the sheriff or a referee appointed for that purpose, or at such time and place, and in such other form or manner as to the court may seem just and proper; moves that the prayer of the petition be granted.</p>

<p>Mandamus — what delay is fatal to the writ.</p> <p>Where parties have acquiesced for nearly two years in the proceedings sought to he set aside, a mandamus will not he granted.</p> <p>The writ is allowable in the discretion of the court. The delay for so long a time is fatal to the relief sought.</p>

This action was brought by the plaintiff, a stockholder in The Harlem and New York navigation Company, to cancel and annul a certain agreement entered into between the defendants, for the purpose of running the boats of their respective lines, for joint or mutual benefit and account, and to prevent The Harlem and New York navigation Company from parting with or surrendering any of its leases and franchises as provided in said agreement.

<p>The plaintiffs are'.merchants at Bogota and the defendant is a merchant at New York. Prior to March, 1875, the plaintiffs and defendant had various dealings with each other, and there was at that time an open account between them. On the 17th of March, 1875, the plaintiffs sent to the defendant a draft at ninety days for $12,000, with instructions to expend the same in the purchase of silver to be shipped to them. In consequence of some uncertainty as to the kind of silver to be purchased and shipped, the defendant did not fill the order, but wrote for further instructions on the twenty-third of April, On the 26th of May, 1875, the plaintiff’s reply, countermanding their order for the purchase of silver and directing the defendant when he shall have received the money upon the draft to pay Messrs. De Castro & Co. any balance which the plaintiffs might owe them, and to pay himself what the plaintiffs owed him and to forward the balance to M. Yengohecha & Co. of Paris. On the 7th day of June, 1875, the plaintiffs informed the defendant that they had thought it best to draw on him in favor of M. Yengohecha & Co., of Paris, for the $12,000 at sixty days. The draft, when presented, the defendant accepted, but did not pay the same at maturity. Thereupon the plaintiffs commenced this action to recover the $12,000 in question, claiming that he received the same in a fiduciary capacity, and an order of arrest was issued herein against the defendant who was arrested and held to bail thereunder.</p>

<p> Mortgage—presumption of payment—action to cancel. </p> <p>Where a bond and mortgage, given by a father, were found by his children at his death, amongst his papers, the same having been in the father’s possession for many years, and no claim having been made for either principal or interest for a period of ten years, the presumption is, that the mortgagor and his children were lawfully in possession of the bond and mortgage, and that the same are paid.</p> <p>An action may be maintained to have a bond and mortgage declared to be of no validity, although the land upon which the mortgage is claimed to be a lien, has been sold by the heirs of the mortgagor, when a part of the consideration money, equal to the amount of the mortgage, has been retained and deposited in a trust company, to abide the event of an action to determine the validity of the bond and mortgage.</p> <p>Townsend agt. Goelet (11 Abb. Pr., 187) distinguished.</p>

This is the petition of Elizabeth A. Lynch, executrix, &c., for leave to resign. The petition sets forth that she and Richard M. Harrison were appointed executors, but that Harrison did not qualify.

<p>The action was brought to recover for commissions and expenses earned and incurred by Smith Barker, the plaintiff’s intestate, as trustee of the estate of John Pentz, deceased.</p> <p>The answer set up an account stated, made and rendered by the plaintiff, and full and complete payment and satisfaction.</p> <p>The plaintiff replied, alleging that, at the request of the defendant, and to induce one Sylvanus Townsend to consent to act as trustee of the estate of John Fentz, he made up and signed the statement of account set up in the answer, but that it was made not as a final settlement, but to show to said Townsend in order to induce him to act as trustee; and it was then agreed that as soon as a trustee should be appointed a full accounting should be had.</p>

In May, 1873, the plaintiff was the owner of premises 279 Fourth avenue, New York city; the holder of the second mortgage thereon had procured a judgment of foreclosure for upwards of $6,000, and he also held a third mortgage for $1,450. The plaintiff applied to John A. Kamping, a broker, for moneys to pay said mortgages; the broker procured the money on condition that plaintiff would pay a bonus of ten per cent.

This action is brought by the plaintiff as receiver of the People’s Savings Bank of the city of New York. Prior to the 3d day of November, 1875, the People’s Savings Bank was the owner and holder and in the possession of a certain bond and mortgage made by one John Grarvey, dated on or about the 18tli day of September, 1871, for the sum of $25,000. There was due thereon on November 3d, 1875, accrued interest to the amount of $210.96.

<p>Application for an order for the examination of the adverse .party before trial.</p>

<p> New trial—nominal damages. </p> <p>A new trial will not be granted to enable a plaintiff to recover nominal damages, the verdict on the former trial having been for the defendant.</p>

<p> Supplementary proceedings—duties of referees defined. </p> <p>The duty of a referee appointed under supplementary proceedings is to take and not to make the examination of the judgment debtor, and if he attempts to do so in an officious manner and partisan spirit he transcends his duty.</p>

<p> Assumption of a mortgage. </p> <p>When a party by deed assumes the payment of a mortgage, executed by his grantor, he becomes the principal debtor; the mortgagee may enforce the liability.</p>

<p>This action is brought to set aside an award of arbitrators. The following are some of the facts: Matters of difference existing between plaintiff and defendant in relation to what is designated and known in this case as the “ Van Eisenberg matter,” it was agreed between them that such differences should be submitted to Eufus Park, George W. Elder and John IST. Billings, as arbitrators, to arbitrate, award, judge and determine of and concerning the same, and for the furtherance and better carrying out of said agreement and arbitration the parties thereto respectfully executed bonds. By the terms of the submission it was agreed that “ the arbitration should be conducted and decided upon the priciple of fair and honorable dealing between man and mam.” The plaintiff alleges in his complaint that the persons so named as arbitrators proceeded to sit and hear the matter, but without being sworn or taking any oath. That, at such hearing, the plaintiff offered and insisted upon producing witnesses and evidence and testimony, and having the same heard and considered by said arbitrators, but they refused to hear any testimony or evidence or listen to any witnesses or to any thing save the statements of plaintiff and defendant. That plaintiff renewed and repeated his request, and finally John if. Billings, one of said arbitrators, proposed to examine witnesses offered by plaintiff, but the other arbitrators refused to hear any witnesses, or receive or consider any evidence or testimony, and thereupon the two, viz., Park and Elder, made and signed the award. The defendant alleges in his answer that both parties attended before said arbitrators, and were fully heard, neither objecting that the arbitrators were not sworn. ■ The statements of each party were, by consent, taken as evidence, and were submitted in writing, with oral explanations and suggestions, and though the plaintiff spoke of calling witnesses the arbitrators only refused to take testimony, because, upon the facts in respect to which they, found that the parties by their own statements substantially agreed, they were able satisfactorily to determine the matters submitted to them according to the terms of the submission, and did, after the parties had been fully heard, make the award, for the setting aside of which this action is brought. Other facts appear in the opinion.</p>

On December 27, 1876, a number of the creditors of Gold-stein & Brother (including Haines, Bacon & Co.), filed a petition praying for the adjudication of Goldstein & Brother in bankruptcy. On January 13,1877, they were adjudicated by default and a provisional warrant was issued to the United States marshal.

<p> Conflicting evidence. </p> <p>Where it becomes necessary for the court to pass upon the weight of conflicting evidence, it will consider letters written by a party, and acts performed by him contradictory of his oath, as rendering such oath of no consideration.</p>

The following affidavit sets forth the facts necessary to the proper understanding of the case : City and County of New York, ss. : William A. Seaver, of the city of New York, being duly sworn, says: That, on or about the 17th day of October, 1872, this deponent, William C. Traphagen and John McOlave, were, by a rule or order, duly made and entered at a special term of the supreme court of the state of New York, duly appointed commissioners of estimate and assessment, in a…

<p> Supplemental complaint—right to amend—joinder of parties. </p> <p>A supplemental complaint is a pleading, and as such is amendable once, as of course, in pursuance of section 172 of the Code. A new cause of action can be setup as well in an amended pleading as in an original. The representatives of a deceased defendant may he joined with a surviving defendant in an action upon a joint liability where the insolvency of the surviving partner is averred.</p>

The plaintiff was the owner of a horse and cart, which were lost in 1869 from the wharf owned by the defendants, at the foot of Fifty-third street and the East river. His claim for damages in the sum of $400, was presented to the common council of the defendants, and in 1871, that body passed a resolution allowing to plaintiff the sum of $350, to be paid by defendants’ comptroller from the appropriation for city contingencies, or any other appropriate account.

Action for divorce brought by plaintiff against his wife on the ground of adultery. The case was sent to a referee, who reported in favor of the plaintiff, and a motion is now made to confirm the referee’s report and for the entry of judgment.

This is an appeal by the defendants, from a judgment entered against them, on the direction of a referee. The action was brought to compel the specific performance of a contract alleged to have been made between the plaintiff and defendants’ intestate, for the conveyance by the latter to the former of the premises described in the complaint.

Motion to set aside an ex parte order for leave to sue. • On application of John H. Platt, as assignee in bankruptcy of Ephraim S. Snow, for leave to sue Henry S. Pierson, jr., a receiver appointed by the superior court, an ex parte order granting the application was issued, and the defendant, Pier-son, moved to have that order set aside.

<p>A bill of indictment was found against the defendants at the last January term of this court. It contained two counts. The first charged that the defendants, as inspectors of election of the western election district of the Eighth ward of the city of Albany, on .the day of election, held on .the 7th day of</p> <p>November, 1876, knowingly, wrongfully and unlawfully fraudulently made a false certificate of the result of the election in said election district in regard to representative in congress, whereby they allowed one Terence J. Quinn 945 votes and one Hamilton Harris fifty votes, when, in truth and in fact, said Harris received more than said fifty votes and said Quinn 'less than said 945 votes. The second charged, that while it was the duty of said defendants, as such inspectors, to make a true certificate of the result of such election, in said election district, in regard to said representative in congress, yet that said defendants neglected their duties, in not immediately, at the final close of the poll, taking possession of the ballot-box containing the votes cast for representative in congress, and immediately open and canvass the ballots therein contained; and that with intent to affect such election, in said election district, in regard to representative in congress, knowingly suffered and permitted the said ballot-box to go out of their possession, and knowingly suffered and permitted ballots in said box for representative in congress to be wrongfully taken from said ballot-box and destroyed and false and fraudulent ballots to be inserted in lieu thereof.</p> <p>The defendants plead not guilty.</p> <p>At this term of the court a jury was impanneled and the trial of the prisoners, under said indictment, took place. The material facts, proved by the prosecution, are as follows :</p> <p>The prisoners, chosen under the laws of the state of New York, constituted the board of inspectors of election in and for the western election district of the Eighth ward of the city of Albany (a portion of the sixteenth congressional district of said state of New York), on the general election, held on the 7th day of November, 1876. The other officers of election were two poll clerks, appointed by the police commissioners of the city, two supervisors of election and two marshals, appointed pursuant to section 2012 of the United States Revised Statutes. The polling place was designated by. the common council of said city. Before the polls were opened, said police commissioners provided prisoners with six ballot-boxes, one each for electoral, state, congressional, judiciary, assembly and constitutional amendment ballots. All the boxes were examined and locked, and in the presence of all the officers of election, without objection, the keys of all the said boxes were delivered by one of the prisoners, Hayden, to one Michael Holán, one of the patrolmen assigned to perform police duty at that poll that day, under the direction of the police commissioners of the city, and were retained until returned by him in the evening to open the boxes, that the ballots in each might be canvassed. It had been the custom in this and other election districts in said city, for at least six years prior, to make one of the patrolmen attending the poll the custodian of the ballot-boxes and their keys, except during the taking of the ballots and the time the ballots in a particular box were being canvassed. Hine hundred and ninety-five ballots were cast in that district for representative in congress. At sun-set the polls were closed and the ballot-boxes were placed by the authority of the prisoners in the custody of the patrolmen, now three1 in number, and retained by them until the prisoners, as such inspectors, called for a particular box, when it was delivered to them. Besides the officers of election and patrolmen, four citizens designated by the police commissioners of said city, were present to witness the canvass. The politics of the witnesses and officers of election were four democrats and five republicans.</p> <p>The electoral ballots were first canvassed, with this result: Democrat, 678 votes; republican, 316 votes.</p> <p>Hext, the assembly ballots, as follows:</p> <p>Democrat, 593 vote; republican, 392 votes.</p> <p>It was shown that by the general desire of those present at the canvass, and as one of the candidates lived in the ward, the assembly ballots were canvassed out of the regular order. Hext, the congressional ballots, as follows:</p> <p>Democrat (T. J. Quinn), 945 votes; republican (H. Harris), fifty votes.</p> <p>The other boxes were canvassed with substantially the same result as that of the electoral ticket.</p> <p>It was shown that after the polls were closed that evening, and before the congressional ballots were canvassed, the room in which the canvass took place was, for a short time, somewhat dark; that all the boxes were placed in the back part of the room near an open window, at which, during the evening, the shadow of a man was, for an instant, seen by one of the witnesses of the canvass.</p> <p>The prosecution called 100 voters, residents of the election district, who each testified * that, on the 7th day of ¡November, 1876, they voted for Hamilton Harris for representative in congress. It was proposed to call 116 additional voters to testify to same effect, but the court thought it unnecessary to accumulate evidence upon that point.</p> <p>It was also shown that one elector voted a peculiar silver backed greased congressional ballot, upon which was the name of Hamilton Harris, and this was not found in the congressional ballot-box during the canvass. Some of the ballots in this box looked clean and had the appearance of being little handled.</p> <p>Each of the witnesses, who was present at the canvass, testified that the counting of the votes in all the ballot-boxes was fair and correct, and that they saw nothing done wrong, nor did they see the prisoners deviate from an honest course of action.</p> <p>Upon the conclusion of the proof for the prosecution, a motion was made, by the prisoners’ counsel, requesting the court to instruct the jury to acquit the prisoners, as it was not shown that either of the prisoners had committed a criminal offense.</p>

Demueeeb to complaint. The action is brought to recover damages for a breach of contract. The complaint sets out the seizin of the plaintiff, on March 1, 1870, of premises on Rivington street, New York city, and a contract between the parties to this action.

This was an action to recover the value of a pair of horses sold by the sheriff under a judgment and execution in favor of one Chester Freer, and against one John C. Shaffer, whose general assignees, for the benefit of creditors, the plaintiffs were. At the close of the case the defendants moved for a nonsuit, on which motion the following oral opinion was pronounced, and reported by Spencer C. .Rodgers, court stenographer.

This is an appeal from an order, made at special term December 6, 1875, overruling a demurrer to the complaint. The action is upon a policy of fire insurance, made by defendant on the 15th day of March, 1875, whereby it agreed to make good any loss or damage by fire to the amount of $2,500 on the steam tug propeller Matt. White, during the period of one year.

<p> Fictitious name. </p> <p>A plaintiff is not allowed to use a fictitious name for the defendant at his discretion, hut only when he is ignorant of the true name.</p> <p>If the name of the defendant be unknown he may be sued by a fictitious name; but if a fictitious name is adopted in the summons or in the complaint (if one accompany the summons), there must be a distinct allegation to the effect that the'name so used is by reason of ignorance of the defendant’s true name.</p> <p>A person sued as Hr. Kraft, in the district court, did not appear, and judgment was recovered by default, which was assumed to have been made a judgment of the common pleas, by the filing of a transcript with the county clerk. On application for an order in supplementary proceedings on the judgment,</p> <p>Held, that the judgment was void, and not one upon which any final process could lawfully be issued against the property or person of the person so served.</p>

<p>Demubbeb to two indictments.</p>

Motion to set aside a conveyance as fraudulent. The plaintiffs, as copartners in the gas-fitting and plumbing business in Troy, on the 19th day of December, 1874, recovered a judgment against the defendant, State S. Barring, for the sum of $351.71, upon a note given for work, labor and services performed, and materials furnished by them, in fitting out the defendant Barring’s boat, to be propelled by steam.

<p>■Motion by a receiver to compel a judgment debtor to execute letters patent.</p>

<p>Bankruptcy — stay of suit brought in state court after fling of petition.</p> <p>The bankrupt is entitled, until the question of his discharge is settled, to be protected by the court in bankruptcy, except in the cases specified in the bankrupt law. That the creditors have not proved their claim in the bankruptcy does not affect the question. Section 5106 of the Revised Statutes relates to debts provable, which, of course, includes those which have not been proved.</p> <p>Where a claim originates in contract, although fraudulently induced, and is prosecuted in an action sounding in damages, it continues to constitute a provable debt, even though the fraud must be proved to entitle the plaintiff to a recovery.</p>

This is a motion to set aside an execution issued against the person of the defendant. The complaint in the action avers: 1. That the defendant was the master of the steamship City of Brussels. 2.