Volume 54 — Howard's Practice Reports

<p>Mandamus — the proper remedy to compel the payment by the county treasurer of certain bills audited by a board of supervisors— certificates of audit con- • elusive as between the parties—estoppel.</p> <p>Where bills of several individuals, which were in the form prescribed bylaw, were duly presented to the board of supervisors of a county, who, acting- in their judicial capacity, passed upon and audited the same, giving to each person a certificate of audit, which certificates were duly assigned to the relator, who advanced the money thereon:</p> <p>Held, that on the refusal of the county treasurer to pay the same a mandamus was the proper remedy to compel their payment.</p> <p>The certificate of audit is conclusive against the county. As the law gives no appeal from the determination of the board of supervisors in auditing and allowing, or rejecting claims properly submitted to be audited, it necessarily follows that their action is final and conclusive.</p> <p>Ji seems the principle of estoppel applies, and prevents the county treasurer setting up that the persons in whose favor the certificates were given are fictitious and the bills fraudulent.</p>

<p>Will—consil'uction—bequests to charities — annuity — Equitable conversion.</p> <p>Where a testator disposed of the residue of his estate' iu these words: " The balance I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches, in the city of New York, as a majority of my executrix and executors shall decide, and in such proportions as they may think proper.</p> <p>Held, that the testamentary disposition was not invalid on account of vagueness or indefiniteness.</p> <p>Also, that when a will affords a rule of ready application for selecting the object of the testator’s bounty, and when the gifts are capable of being executed by a judicial decree, there is no reason why a court should not enforce them.</p> <p>A majority of the “ executrix and executors ” having designated charitable societies, from the class mentioned by the testator:</p> <p>Held, they are entitled to the gifts.</p> <p>Also, that the refusal of one of the trustees to act with the others in making • a selection of societies to take the testator’s gifts, would not invalidate the decision and selection made by the majority.</p> <p>Where a direct authority to sell the testator’s real estate was given to the executors, and the entire will showed that the testator’s intention was that the real estate should be converted into money for the purpose of consummating his gifts:</p> <p>Held, that there is an equitable conversion.</p>

<p>Motion to vacate order of arrest.</p>

The plaintiff commenced an action in the marine court against the defendant to recover $773 on a contract, and procured an attachment, under which the sheriff seized a number of horses now at Jerome park race track, the property of defendant. The defendant moved to vacate the attachment for alleged irregularities in the original papers.

<p>Appeal from judgment recovered on the report of a referee, and from an order denying motion to set aside the report as irregular.</p> <p>The action was for the use and occupation of certain premises on Broadway, New York city. The defendants and appellants composed “ The Virginia and Tennessee Boute” and “The Great Southern Mail Boute,” in the years ■ 1860 and 1861, and their general agent, Mr. D. C. Smith, rented the premises for the use of the defendants, and did so by written lease, under which the defendants entered and occupied, and paid rents until May 1, 1861.’ Mr. D. 0. Smith left the defendants’ employment in January or February, 1861, and they continued to occupy the premises by their agents, Alfred Stewart and Jonah H. White, until February 12, 1862, when they were evicted by the plaintiff, leaving the rent unpaid for nine months and twelve days. The action was originally commenced on the lease signed by D. 0. Smith, and the referee reported for the plaintiff) but the findings by the refere^ were under the lease which was held to be that of the agent, and not that of the principals, and the general term reversed the judgment, and held that the recovery must be for use and occupation, under the amended complaint (See ease reported in 1 Hun, 151). Under the amended complaint for use and occupation, the case was tried again, and judgment obtained by plaintiff. The,'clause in the lease allowing re-entry and re-letting, at the loss of the defendants, in case of their default, was the liability that the defendants sought to avoid under the lease, as the clause made them liable for the premises during the whole period of the term of the lease, and the recovery for use and occupation reduced their liability under the lease from $6,500 to $3,138. The facts as shown upon the trial are fully recited in the opinion.</p>

<p>Husband mid wife—deed to married woman — consideration — creditors of husband—uses and trusts.</p> <p>Where a conveyance of real property was made to a married woman by the direction of her husband, he being at the time dangerously ill and not expected to recover, in order to provide a home for his wife and children, the consideration paid for the same being the earnings of a business in which the husband, aided by his wife, had been for many years engaged, the wife having personally saved and accumulated earnings and placed them in savings banks, some in her own and some in her husband’s name, and a part in their joint names, it not appearing that the husband was in debt at the time,</p> <p>Held, that the title of the wife was not fraudulent and void within the cases of Savage agt. Murphy (34 N. Y., 508) and Oase agt Phelps (39 id., 164).</p> <p>Also, that a creditor of the husband, whose claim arose after the transac-, tion, could have no redress under sections 51, 53, part 3, title 3, article 3 of the Revised Statutes concerning uses and trusts.</p> <p>Also the fact that a misunderstanding has arisen between the husband and wife and he takes an interest in the creditor’s recovery, cannot change or affect the character of the original transaction.</p>

On May 29, 1865, an order of reference in this case was made by judge Cabdozo, at special term. The defendants appealed t.o the general term, and the order was affirmed July 18,1866, and the case tried by the referee. On the trial the answer was amended by inserting an allegation of fraud, in obtaining the contract sued upon. The allegation was fully tried.

. Application by Lauren C. Woodruff to compel Hugh J. Jewett receiver of the Erie railway to comply with the terms of a lease of the Erie and Genesee Talley railroad.

<p> Beferee—motion to substitute new referee—not disqualified by reason of offer of plaintiffs to stipulate for extra compensation. </p> <p>A referee is paid for his services by the party who takes up the report. He may maintain an action for them against the party liable for them. He has a lien upon his report for the amount of his fees, and is not bound to deliver his report until his fees are paid.-</p> <p>The fees of a referee are fixed by statute at three dollars per day, but the same statute provides that the parties may agree, in writing, upon any other rate of compensation {Code, sec. 318). This agreement for other compensation may be made orally, in the presence of the referee, and if entered on his minutes, the statute is complied with.</p> <p>An offer made by one party, in the presence of the referee and the other - party, to be responsible for an amount of fees that the other party refuses assent to, which offer was promptly rejected by the referee on the ground that all parties fhust consent, does not disqualify or prevent him from proceeding with the case.</p> <p>The action of a referee in stating to the litigants before him what his usual charges were, and inquiring whether they had made an agreement on that subject, is wholly unobjectionable.</p> <p>Such suggestions and offers bear no resemblance, in fact or in principle, to the case of a promise by a litigant to pay a judge or jury extra compensation for hearing or trying a cause, because the statute permits a higher rate of' compensation to be paid a referee when all the parties agree to it;'and the courts have held it proper to make such agreement in the referee’s presence.</p>

Writ of certiorari to review proceedings, under the non-imprisonment act taken against Charles Dusenbury. The facts sufficiently appear in the case as reported in 52 Howard, 277, and in the opinion.

<p>Supplementary proceedings—po'oaeedings before referee— Order dismissing proceedings, vacating injunction and granting costs to defendants — irregutariby of such proceedings.</p> <p>In supplementary proceedings, in cases where the proceedings are had before a referee, the discontinuance of the proceedings, or the imposition of costs should not be had or made before the report of the referee is made; and, before acting, the parties on either side should have notice from the other of the motion to be made, founded on such report, in analogy with proceedings in the court by motion for costs in cases within the discretion of the court.</p> <p>The order was granted by the county judge, May 39, 1877, and a referee was appointed to examine .the defendants on oath concerning their property. The referee was directed to report the examination and all his proceedings under the order to the judge granting the same. The defendants were ordered to appear before the referee at his office, on June seventh, at ten a. m., and to appear before the referee from time to time, as he should direct and appoint. The defendants appeared at the time appointed, and an examination was had of one of the defendants, and the proceedings were adjourned from time to time, until the fourteenth June, twenty-eighth June and twenty-fifth July; on each of said occasions plaintiffs and defendants appeared by counsel, and examination was had of defendants or witnesses. On July twenty-fifth the proceedings were further adjourned until August fourteenth. No appearance was had by the parties on that day, but by agreement of counsel the proceedings were adjourned until August twenty-eighth. On said twenty-eighth August, there was no appearance by plaintiffs or their counsel, and at request of defendants’ counsel said proceedings were adjourned forthwith by said referee before said county judge, who thereupon, without notice to plaintiffs or their attorneys, and on motion of defendants’ counsel, made an order that the proceeding be dismissed, the injunction vacated and dissolved, and that defendants recover of plaintiffs thirty dollars costs.</p> <p>Held, that this order was irregular and without authority, and should he vacated and set aside.</p>

<p>Becewer — action of ejectment.</p> <p>In an action of ejectment a receiver cannot be appointed before judgment.</p>

<p>Examination of a party l fore trial—mode of procedure to compel a party to appear for examination—construction of sections 873, 874 and 875 of the Code of Omtt Procedure.</p> <p>The summons resorted to under the old Code, for the purpose of bringing a party into court for examination, having been superseded by the subpoena substituted by the Code of Civil Procedure, and the requirement of a subpoena having in turn been abrogated, nothing more is now necessary than service of the order and affidavit as prescribed by section 875.</p> <p>If a party has appeared in the action, the service of a copy of the order and of the affidavit upon which it was granted upon his attorney is sufficient. If a party has not appeared in the action, the papers must be served upon him as directed by the order. . If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties.</p>

<p> Husband and wife—effect of convey anee to, when consideration is paid by the wife. </p> <p>Where a conveyance is made of real estate to a husband and wife, both become seized of the entirety, and this, although the wife furnished the consideration for the conveyance; the evidence being that the wife acquiesced in her husband’s seizin, until he was prosecuted for a debt, presumably contracted on the faith of his seizin, the property was held liable for his debt.</p>

<p>Summons—substituted service—motion to set aside—where to be heard—</p> <p>An order for a substituted service of a summons is the granting of a “provisional remedy’’ within the meaning of the term as used in the Code of Civil Procedure.</p> <p>A motion to set aside a substituted service of a summons can only be made, and the relief granted, “within the judicial district in which the action is triable, or in a county adjoining that in which it is triable ” {Oode of Oivil Procedure, sees. 769, 772).</p> <p>Where a judge of another judicial district, while holding special term in the city of New York, granted an order for a substituted service of the summons in an action triable in the county of Onondaga, and after-wards, on papers submitted on the part of defendant, made an order, returnable before himself at the city of New York, requiring the plaintiffs to show cause why said order should not be revoked, and the service under said order be set aside and held for naught. On the return day of such order, the parties appeared by their counsel, and by agreement the hearing was postponed to a future day at the judge’s chambers in the city of Kingston.</p> <p>Held, that, as the order sought to be vacated granted a “provisional remedy,” the judge making the original order has no power to vacate it.</p> <p>Held, further, that the counsel’s consent to the postponement of the hearing to a future day, at the judge’s chambers in the city of Kingston, did not operate to give the judge power to grant the relief sought. The consent was to hear the matter of which the order to show cause gave notice before that judge, at his residence in Kingston. When heard, the counsel was at liberty to raise any question which was fairly involved.</p>

<p>Husband and wife—Daughter—earnings of wife — conveyance ly husband to wife—resulting trust—Statute offrmds—Petrol evidence — Delay in</p> <p>Where moneys are received by a person, in trust, to invest the same for another, and the same be invested by such person in land in his own name, the same will be charged with a trust in favor of the one for whose benefit the money was to be invested.</p> <p>It requires evidence of the most satisfactory character to engraft a trust upon land held by an absolute title in respect to which there is no writing.</p> <p>The resulting trust, “to be established by parol evidence,” is when the consideration-money for the purchase belongs to the cestui que trust, or is advanced by some other person as a loan or gift to him.</p> <p>A husband may permit his wife to labor for her own account; he may give her the proceeds of her labor, or allow her to appropriate the same to her own use, by investing the same in real estate in her own name (Seaman agt.WaB, antep, 48).</p> <p>Where real estate was purchased with moneys earned by the wife, her right to the moneys being acknowledged by the husband, and the title to the real estate was taken in the first instance in the name of the husband, and the husband afterwards, in recognition of the equitable claims of the wife, conveyed the same directly to her, although the deed is-void at law, it may be sustained in equity; and, where the circumstances justify the conclusion, the transaction may be sustained as an advancement of the wife by the husband.</p> <p>Equity will not, however, enforce a grant by a husband to his wife of all his property, by which he will be denuded, or which is in fraud of the claims of his creditors.</p>

This is a motion for a new trial in an action to recover the possession of two parcels of real estate. Upon the first trial before justice Mohboe, without a jury, the plaintiff recovered one parcel and defendant succeeded as to the other. The defendant then paid up the costs and took a new trial, which was had November, 1876, before justice Habdih and a jury. The jury found for the plaintiff in both parcels.

<p> Action for divorce—Discontinuance—when not allowed,. </p> <p>The power of the court to permit a discontinuance is unquestionable, but such power is never exercised when it would be unjust to grant it.</p> <p>Plaintiff commenced an action for divorce against the defendant, the parties being husband and wife, upon the ground of adultery. The answer of defendant denied the charge and set up adultery by the husband, and asked for judgment of divorce in her favor against him. Upon a petition by defendant for an allowance to her for counsel fees, and for her support pendente lite, a referee was appointed to ascertain and report what allowance, if any, should be made to the defendant. Several hearings have been had before said referee, but no report has yet been made. Plaintiff moves for leave to discontinue. Held, that it would be unjust to grant it.</p>

This is an appeal from an order of the general term of the first department, made on the 4th of December, 1876, affirming an order of the special term made May 22,1876, denying a motion of the defendant to vacate an order of arrest issued against him under subdivision 3 of section 179 of the Code.

<p>Motion to set aside sale and sheriff’s deed in a foreclosure case.</p>

<p>Will— codicil—construction—annuity—cha/rge upon reed estate—Proceeds. —Equitable conversion.</p> <p>Where a testatrix gave the income arising from her estate to her four daughters for life in certain proportions, and gave the principal of her estate, after the deaths of her daughters, respectively, to her grandchildren in certain proportions, and afterwards, by a codicil to her will, directed that her daughters “shall share equally and alike in the proceeds or income of her estate:”</p> <p>Held, that the change wrought by the codicil with respect to the participation by the daughters in the income, did not disturb the gifts over to the grandchildren, or affect the portions they took under the will.</p> <p>The term “proceeds ” used in the codicil, held, not to relate to the proceeds to be realized upon a sale of the corpus of the estate, but that it was the equivalent for the word “ income.”</p> <p>To warrant the conclusion that the testatrix intended by the codicil to change the shares of the grandchildren, language should have been used' clearly to effectuate such change.</p> <p>After making certain gifts out of her estate, including an annuity of $300 to her daughter Mary for life, the testatrix gave and devised all the rest and residue of her estate, after the payment of debts, &c., unto her executors in trust, &c.:</p> <p>Held, that the annuity was a charge upon the real estate.</p> <p>BpiUane agt. Duryea (51 How. Pr., 260) explained and limited.</p> <p>Although there be an authority to sell the real estate, if there be no express direction to do so, there is no equitable conversion of the realty into personalty {White agt. Howan'd, 46 H. K, 162).</p>

Motion by plaintiff to vacate order settling the issues to be tried by jury and for an order of reference of the issues. The action is brought by the husband against the wife for a divorce on the ground of adultery. The defendant by her answer denied the acts of adultery charged in the complaint.

<p>Liability of common carries'—Complaint—Action for personal mjwnes and loss of baggage — Negligence—Answer—Defense — Jurisdiction.</p> <p>Plaintiff was a passenger upon defendant’s boat plying between the cities of New York and Providence, Rhode Island, and the action is brought for personal injuries which plaintiff claims he sustained from a collision occurring between the steamboat and a sailing vessel, in consequence of which the steamboat was sunk, and the lives of the passengers imperiled; and he also makes a claim for his baggage then lost. The allegation is that such accident, loss and injury was occasioned through the gross negligence of the defendants. The defendants deny the alleged negligence, and interpose, preliminarily, as their exemption from any liability charged against them, a decree of the district court of the United States, under the provisions of the act of congress of March 3, 1851 (chap. 43 U. S. 5. S., secs. 4383 to 4389), limiting the liability of shipowners for collisions or other injuries occurring “ without the privity or knowledge of such owners.”</p> <p>Held, that claims of this character are entirely without the purview of the act of 1851, and, therefore, the plaintiff’s action was not affected by the order of the district court.</p> <p>This statute expressly excepts from its operation claims for injuries predicated upon “ the privity or knowledge of the owners,” or acts for which, through such privity, they had become primarily responsible. There is nothing in the terms of the act by which it is intended to subject to such jurisdiction claims for losses occurring through their own neglect or violation of such positive duty they had assumed when their own unlawful acts were the direct or immediate cause of the injury.</p> <p>A corporation acts through its immediate officers and agents. The privity and knowledge of such immediate agents and officers is that of the corporation.</p> <p>There is no reason upon principle or upon any proper construction of the act of 1851, why such parties as claim damages, through injuries sustained from the primary neglect of a shipowner, should he held subject to the proceeding thereby contemplated.</p> <p>The act of 1871 {eJuvp. 100, seo. 43, V. 8. JR. S., see. 4493) confers upon a passenger the right to recover from the master, owner, or either, of the vessel, the full amount of damages to himself or baggage from explosion, fire, collision, or any other cause arising from any neglect or failure to comply with the various provisions of that act, regulating steam vessels engaged in the transportation of passengers an'd merchandise. The complaint alleges injury to the person of the plaintiff, and loss of his baggage through various omissions to comply with those provisions, and for such injuries arising through any of those causes, the act of 1871, in express terms, confers upon the party injured an unlimited right of recovery of any damages sustained thereby.</p> <p>It is the later statute, and so far as the act of 1851 abridges those rights, the act of 1871 fully restores them, and they are to he maintained on common-law principles.</p> <p>It is an axiomatic truth that every person, while violating an express statute, is a wrong-doer,- and as such ex necessitate negligent in the eyes of the law, and that every innocent party injured by the act which constitutes the violation of the statute is entitled to a civil remedy for such injury, notwithstanding any redress the public may have.</p>

<p>Quo warranto to try right to public office —power to go beyond, canvass — proof—evidence—power of removal.</p> <p>Upon an information in the nature of a quo warranto to try the right to an office, it is competent to look beyond the canvass for the purpose of giving effect to the action of the board making the appointment.</p> <p>Where, in accordance with the provisions of the charter of the city of Kingston, at a meeting of the common council, they proceeded to appoint an alms-house commissioner, and according to the minutes thereof as kept by the city clerk the relator received ten votes for the office and the defendant seven votes and thereupon the relator was declared duly appointed to such office :</p> <p>Meld, that the entry upon the minutes of the common council that the relator had received ten votes for such office and was duly elected was not conclusive, but that, on the trial of an information in the nature of a quo warranto, it is competent for the defendant to prove the number of votes the relator received, and whether the entry upon the minutes that he then received ten was correct.</p> <p>Where the charter provided that the mayor and aldermen should constitute the common council and that no appointment to office could be made except by a concurring vote of a majority of all the members of the council in office:</p> <p>Meld, that the vote of the mayor has the same effect as that of any other member of the body, and that the person must receive a majority of all the votes of the members of the common council in office, counting the mayor as one of such members, and not that the special vote of the mayor for the successful candidate is necessary.</p> <p>The subsequent action of the common council in approving the minutes of the meeting at which the relator was declared duly appointed, and its refusal to reconsider its supposed action expressed upon its minutes, is not equivalent to an original appointment. Although subsequent ratification of the acts of a party acting as the agent of another may be equivalent to an original appointment, yet when applied to a case of a public office, the mode of filling which is declared by the law, the doctrine does not hold good.</p> <p>The removal of the relator by the common council because they deemed the control and expenditure of the public moneys unsafe in his hands in consequence of his insolvency, and because they further considered from his own declarations, not that he was an irreligious man but one who, because he thought the sale of an intoxicating beverage on the Sabbath was proper and right in itself, would not properly discharge his duties by prosecuting therefor, was lawful and within the express powers conferred.</p>

The plaintiff served a complaint in which none of the allegations are “ stated to be made on information and belief of the party,” so the complaint was a verification or affidavit to the effect that the allegations “ are true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it true.” The defendant served an unverified answer.

<p>Covenants against mcamb'amees — action by assignee of grantee against grantor.</p> <p>Where P. conveyed to S. land by deed, with covenants against incumbrances and for further assurance of title, and. S. afterwards conveyed to E. with like covenants, P. is liable to E. for the amount of an assessment, a lien on the land, at the time P. conveyed to S.</p> <p>Rote. In a late case in the court of appeals, 1877, not yet reported (The Trustees of Columbia, College agt. Anna M. Lynch), in speaking of the proper party to maintain an action for a breach of covenant in respect to land—</p> <p>Allen, J., says: “ Should it appear that the plaintiffs had parted with the title, it might be questioned whether they could maintain the action. The right exists for the benefit of the owners of the land for the time being, and it may be waived or released by them, and it would seem they would be the proper parties to bring the action. At most the plaintiffs would be but the dry trustees of the covenants, for the benefit of their grantees, and in equity, and in all cases under the present system of practice, the real party in interest should bring the action.” [Rep.</p>

Motion to change place of trial. The action is brought on a promissory note and the defense is payment. This motion is made to change the place of trial from New York to Washington county as the proper county, the transaction having taken place there and the parties residing in that county.

<p>Hotioit to continue injunction pendente lite.</p>

The plaintiffs are bankers in this city, and they had numerous speculative transactions in real estate on joint account with the defendant, Meyer. Some of these transactions made a profit, which was divided, and Meyer took his share; but a large decline in real estate took place, and among other parcels owned by the parties were two parcels of lots for which Meyer had not paid any thing, but the whole money was paid by the Wormsers, under Meyer’s agreement to pay them.

<p> Pleadings —Answer—Demurrer—nonjoinder of parties—plea in abatement. </p> <p>To make a plea in abatement good, when it is based on the non-joinder of a party defendant, the plea must aver that the person not joined is alive and within reach of the ordinary process of the court.</p> <p>Where, although the answer does not in terms aver that the party omitted is still living, but in the second clause of the answer it is alleged “that the defendants and one John W. Earn are * * * copartners, doing business at Belmont, Allegany Co., N. Y., by the name and style of Silsby & Earn; that the note set out in the complaint is the note of said firm in its firm business ”:</p> <p>Held, that the fact that the party omitted is still living is fairly stated, and in what may be termed “ ordinary and.concise language.”</p> <p>The question as to whether or not the plaintiff is bound to make John W. Earn a party to the suit, for the reason, as he alleges, that when he contracted with the defendants they did not make known to him the fact that John W. was one of the firm of “ Silsby & Earn,” and when he commenced the action he was ignorant of the fact, is a question of fact to be tried and determined by the jury, and is not a question of pleading. All the pleader needed to aver, to make a good answer, in this respect, was the fact that the party omitted from the record was, in truth and in fact, a joint promissor with the other defendants. This is so alleged in the answer.</p>

<p>Arthur Gilman, an architect, sues Mrs. Marietta R. Stevens, the defendant, for a balance of $832 upon an account for professional services in completing and building an addition to the Stevens apartment house, corner of Twenty-seventh street and Fifth avenue, Mew York city, the other portion of said apartment house having been constructed by another architect, Mr. R. M. Hunt. The complaint likewise claimed full compensation as upon an estimated cost of $425,000, according to the schedule of the Institute of Architects, for professional services in and about a hotel proposed to be built-by the defendant (as alleged) upon land belonging to the late Paran Stevens, the defendant’s husband, at the corner of Thirty-seventh street and Fifth avenue, New York city, which last hotel was never built. The answer is a general denial, and alleges for a further defense, and as well by way of counter-claim, that the plaintiff in his professional capacity as an architect undertook and agreed to supezwise the construction of the Twenty-seventh street house, and to see that the same was built of the best of material, and in a strong and substantial manner, and made suitable for its purpose, while in fact and in consequence of “ negligence, and want of skill and attention ” on the part of the plaintiff the said building was not constructed in a strong and substantial manner. “ Every thing necessary to make the same strong and substantial was not done.” “ The materials used in and about the construction of the same were not of the best character, and the work and labor upon the same were not faithfully performed, and that in consequence thereof the said building is less in value by the sum of $20,000 and upwards than it should be if the plaintiff had performed his agreement and discharged his duty in the premises, by reason whereof, as the defendant is advised and believes, the plaintiff is liable to her in the sura of $20,000 and upwards, for which, by way of counter-claim, she asks judgment against him in this action, with interest.” The defendant’s testimony was to the effect that she merely considered a proposal to build a hotel at Thirty-seventh street and never decided so to dó, nor employed plaintiff to design such an hotel, and that the plaintiff’s plans, if he made any such, were an adaptation of plans already made by plaintiff for another person, and that she estimated her damage from the ill construction of the Twenty-seventh street house at $20,000. With reference to the Twenty-seventh street house the defendant’s son-in-law testified that certain arches over the store windows in the first floor were weak so that he saw the bricks bulging out above them.</p> <p>lío architect was called by the defendant, but two builders testified in her behalf that, in their opinion, the material used was not of the best quality and the work was inferior, and that the value of the building was very much less on account of those facts. On the part of the plaintiff five builders testified to their having made offers to put the building in good condition for comparatively small sums ranging from $1,000 to $2,000, and that the need of repairs was largely due to the fact that the building was erected in winter and without the heat which defendant had agreed to furnish, and that such repairs were usually required, and various architects were called to prove the plaintiff’s experience and professional standing. The specifications were put in as tending to show that first-class work and material were not contracted for on the Twenty-seventh street house, as the specifications called in some places for “ 2d quality pine ” and for “ two coat work in plastering.” The plaintiff testified that the defendant ordered and insisted upon repeated changes from his plans and directions, and failed to make the payments agreed on and needed to carry on the work. As to the denial of employment upon the Thirty-seventh street hotel letters of the defendant were put in evidence in one of which she urged the plaintiff to hasten those plans, and in another of which she suggested to the proposed builder of the last hotel to “ excavate under ” a florist who was occupying the Thirty-seventh street land and “ tumble him in ” if he did not get out of his (the builder’s) way. The court allowed evidence as under the before-mentioned allegations of the answer as to certain payments (referred to in the charge) which plaintiff received from the builder. The plaintiff admitted receiving certain sums of money from the builder at the time of the alleged proposition to build at Thirty-seventh street, the same builder having then not altogether completed the Twenty-seventh street house, and the plaintiff alleged that such moneys were advances and (oans to enable him to employ a staff of draughtsmen upon the Thirty-seventh street plans at the defendant’s behest. The drawings and plans offered in evidence as for the contemplated hotel at Thirty-seventh street, contained no “ working plans ” nor “ detail drawings,” as to which fact there was at first a misunderstanding. The schedule above referred to is admitted in evidence and reacfs: “ Schedule of charges adopted by the American Institute of Architects. For full professional services (including superintendence), five per cent upon the cost of the work. Partial service as follows: For preliminary studies, one per cent; for preliminary studies, general drawings and specifications, two and a-half per cent; for preliminary studies, general drawings, details and specifications, three and a-half per cent. For stores, three per cent upon the cost, divided in the above ratio. For works that cost less than $5,000, or for monumental and decorative work, and designs for furniture, a special rate in excess of the above. For alterations and additions, an additional charge to be made for surveys and measurements. Necessary traveling expenses to be paid by the client. The architect’s payments* are sucsively due as his work is completed, in the order of the above classifications. Until an actual estimate is received, the charges are based upon the proposed cost of the works, and the payments are received as installments of the fee, which is based upon the actual cost. Drawings, as instruments of service, are the property of the architect. By order Richard Upjohn, President, Carl Pfeifer, Secretary.”</p>

The suit was brought to recover $2,185.50. The complaint states that the defendant is an attorney at law in this State; that the plaintiff called upon him to have him collect a claim of $2,185 against one J. V. O’Sullivan; that defendant told him he was the attorney for O’Sullivan in an action againt Marshall 0.

Action to compel the surrender and delivery, to the plaintiff, of certain railroad mortgage bonds, claimed to have been improperly negotiated and transferred by the agents of the plaintiff.

This proceeding was brought to vacate an assessment for regulating and grading Ninth avenue, between One Hundred and Twenty-third and One Hundred and Twenty-sixth streets, in the city of New York. 'Various errors in the proceedings relative to the assessments were alleged in the petition. Upon the presentation of the petition and notice to the counsel to the corporation, motion was made for an order to take proofs.

By consent of parties the trial was had before the court without a jury. Theodore Pomeroy died in 1860, a resident of the city of Utica, leaving his widow, Cornelia V., and several children, him surviving.

<p>Consignor and consignee — action between them—‘ ‘ Invoice ” defined — tender — remedy at lam.</p> <p>The fact that a value is stated in an “ invoice” of merchandise accompanying its shipment, does not, by itself, absolutely indicate that the property was sold and not consigned.</p> <p>A consignor of merchandise may, before sales by the consignee, revoke the consignment and demand a return of the goods, he offering to pay the charges and expenses of the consignee, and if refused may maintain an action in equity for an accounting and return of the goods.</p> <p>Tender of advances, how made and when sufficient.</p> <p>The objection to an action in equity, that the plaintiff has an adequate remedy at law, must be taken at the earliest opportunity. It comes too late if taken after the evidence upon the merits at the trial is in and the case submitted for decision.</p>

The relator, James H. Pinckney, as president of The Relief Fire Insurance Company, was an incorporator in the corporation named the New York Board of Fire Underwriters, incorporated by chapter 847 of the Laws of 1867.

This action was brought to recover for loss sustained through a flooding of plaintiff’s premises from a break or burst in a Croton water pipe connecting a main, in the carriageway, with a hydrant on the sidewalk of Tenth avenue near One Hundred and Fiftieth street, in the city of Hew York.

To an action brought by a creditor of Oliver Vanderbilt, deceased, to set aside an assignment of certain leases, claimed to have been fraudulently transferred by the administrator of the deceased, to his mother, the plaintiff in this action, as one of the next of kin and heirs at law of the deceased, was made a party defendant.

<p> Department of public charities and correction, New York—contract with, made without public advertisement—requisition upon comptroller for payment signed by two commissioners—liability of corporation—appropriation. </p> <p>An action cannot be maintained against the corporation of the city of New York on a contract with the commissioners of the department of charities and correction, unless it is made to appear by proof that there is a fund in the city treasury applicable to the payment of the amount claimed under said contract.</p> <p>The department of charities and correction in the care and management of the paupers and criminals confided to it, and in the care of boys whose custody for purposes of reformation devolves upon it by law, act not as agents of the municipal corporation, but as public officers, agents and servants of the public at large. Therefore, the repairs ordered by the commissioners do not come within the provisions of the charter of 1876, section 105, or of the charter of 1873, section 91, not being work or supplies “furnished for the corporation;" i. e., for the mayor, aider-men and commonalty of the city of New York (Daly, C. J., dissenting).</p> <p>The work done upon the school-ship Mercury was not one of those acts of immediate and imperative necessity which dispensed with a compliance with the provisions of the charter in respect to sealed proposals (charter 1870, sec. 104; charter 1873, sec. 91) or. to which it was never intended to apply. (Per Daly, G. J.)</p> <p>Note.—On the new trial before Van Hoesen, J., the plaintiff proved the fact that prior to the performance of the plaintiffs’ contract, and subsequently thereto, there were sufficient funds in the treasury of the defendants applicable to the payment of plaintiffs’ claim; and after the work had been performed, on June 29, 1874, under a special act of the legislature, the appropriations made in 1873 for the year 1874 had been revised, and a large sum appropriated for the payment of contingencies. Judgment therefor was rendered for the whole amount in favor of the plaintiff (8 Hun, 247). On the first trial it had been conceded by the defendants that there was money sufficient to pay the bill of plaintiff, and no question on that point was argued before the general .term. The fact that there neither was nor could be an appropriation seems to have been assumed without proof, and the court would seem to have gone outside of the record for its facts.—[Ed.</p>

<p>Corporation—action against trustees for ingwries emsed ly fraudulent acts— corporation necessa/ry pa/i'ty.</p> <p>An action for injuries caused by the fraudulent acts, or for misapplication or waste of corporate funds, by an officer of a corporation, must be brought in the name of the corporation, unless such corporation or its officers refuse to bring such action. In that contingency, and then only, can a stockholder bring an action for the benefit of himself, and others similarily situated, and in such case the corporation must be made a party defendant.</p> <p>Affirming 8. C. (49 Sow., 79; 52 id., 58); see, also, Allen agt. N. J. Bo. B. B. Co. (49 id., 14); JRussel agt. Wakefield (L. B.), 20; Equity Cases, 474.</p>

<p>Evidence — testimony on a commission — answers to cross-interrogatories — by whom they may be read in evidence.</p> <p>Where the question is leading, and where the answer to it is the expression of the judgment of the witness upon the fact, it is not legal evidence and cannot be disregarded as harmless upon motion for new trial.</p> <p>Testimony being taken upon direct and cross-interrogatories on a commission, may a party on the trial expressly omit to read any of his cross-interrogatories and the answer of the witness to such interrogateiy ? If so, is his adversary, therefore, entitled as of course to read the question and answer as omitted as a part of his direct examination renewed. Quaere? {See Mm'shall agt. Watertown Stecm Engine Oo., 10 Hun, 463.)</p>

Motion by infant defendant for order directing a resale of the mortgaged premises on two grounds: First.

<p>Examination of corporate officers — Code of Oml Procedure, sections 870 and 873.</p> <p>Where a corporation is the defendant, the plaintiff may (pursuant to sec- ■ tions 870 and 873 of the Code of Civil Procedure) have an order for the examination of the defendant as a witness by its president, secretary, director or other officer of such corporation.</p> <p>Although bills of discovery have been abolished, the substance of that remedy has been preserved by section 870 of the Code. To make the latter efficacious in the case of a corporation defendant, it needs only the adoption of a means of compelling the officers of a corporation to submit to an examination analogous to that resorted to by courts of equity, viz., the making of them parties to the proceeding for a discovery.</p> <p>This may be done by inserting in the order for an examination the name of an officer or trustee of the corporation, and requiring him to attend and be examined.</p>

<p>Debtor and creditor—release— concealment.</p> <p>Where the defendant’s creditors signed a paper in the words: “ We the undersigned agree, in consideration of one dollar paid to us, to discharge H. Schulting from the legal payment of the money loaned to him, February, 1866; said Schulting giving his moral obligation to refund the money, in part or whole, as his means will allow in the future:”</p> <p>Held, that the agreement was not an absolute discharge of the debt, but that if the debtor acquired means in the future, and he refused to recognize the moral duty to repay the money, he would be liable in an action for the amount.</p> <p>The paper may be regarded as an agreement on the part of the creditors not to enforce their legal claims, so long as the debtor was without the means to pay.</p> <p>Where, after a creditor had signed such agreement, the debtor paid the creditor a portion of the original debt, and received a release from all claims and demands:</p> <p>Held, that, notwithstanding such release, the creditor might maintain an action for the balance of the original loan if the debtor, at the time of obtaining release, concealed facts in regard to the value of his interest in certain property, which was of large value, but which, before the release, he had stated to the creditor was of little or no value, it appearing that when the action was commenced the debtor had means to pay his debts.</p>

Action to restrain the continuance of a show case which obstructs the plaintiff’s light and air. The facts are sufficiently stated in the opinion.

<p>TraAe-mourk—unauthorised use of corporate name — laches.</p> <p>A court of equity will restrain the unauthorized use by another of the name of a corporation (or the distinctive part thereof) given to it by legislative action, and under which it has sold its goods for a number of years.</p> <p>A corporate name should receive as much protection against its unauthorized use as the name of a natural person, and a corporate name is entitled to protection to the same extent as a trade-mark.</p> <p>The right to the use of such name is denied not merely upon the narrow ground of the violation of an ordinary trade-mark, but upon the broad principle that the plaintiff is entitled, under such circumstances, to protection against the unauthorized use of its name. Such a use is conclusive evidence of the wrong which the law undertakes to redress, viz.: “ The sale of the goods of one person as being those of another.”</p> <p>No distinction can be drawn from the fact that the portion of the name so used originated with a locality instead of with an individual.</p> <p>It seems the consent of a manufacturer to the use or imitation of his trademark by another may be justly inferred from his knowledge and silence; but such a consent, whether express or implied, when purely gratuitous, may be withdrawn, and when implied it lasts no longer than the silence from which it springs. It is in reality no more than a revocable license. The existence of the fact may be a proper subject of inquiry in taking an account of profits, if such an account should be decreed; but even the admission of the fact would furnish no reason for refusing an injunction.</p> <p>Where a manufacturer of cotton goods seeks merely to enjoin the application of his trade-mark, the question of his right to restrain the application of that mark to a variety of cotton goods, in which hitherto he has not dealt, is a sufficiently close one that extreme laches would solve that question adversely to him. In such case the question really is not whether his laches would prevent his ordinary relief against the application of his trade-mark to goods in which he has dealt and on which he has stamped it. By not moving sooner he has in effect admitted that he never intended, to apply that mark to the other variety, and that application thereto by another was a matter which did not concern him.</p> <p>But where, a corporation seeks to enjoin the unlawful use of its corporate name or the distinctive part thereof, the rule is different. Laches can never have the effect of a concession that a person will not extend the use or the application of Ms name, nor can it confer upon the wrong-doer the right to build up and establish a business in another's name.</p> <p>The goods of plaintiff are, and have been, sold under the name of “ The Amoskeag Manufacturing Company,” which was given to it in 1831 by the legislature of New Hampshire. Sometimes its full name has appeared upon the labels affixed to its goods, at others the word "Amoskeag,” and again “A. M. Co.” and “A. M. C.” They are manufacturers of cotton goods in general, and their productions extend to almost every variety of such goods. They have never produced nor dealt in that particular class of cotton goods known as prints or calicoes, and consequently have never applied thereto its corporate name nor any part of it. The defendants, who are manufacturers of prints or calicoes, some nine years before the commencement of this action commenced to use a label on certain prints of their manufacture, with the word “ Amoskeag ” thereon, without the license or consent of the plaintiff, and this action is brought to restrain the use of such word. -</p> <p>Held,, that it was an unauthorized use of the distinctive part of plaintiff’s name, and as such should be enjoined, but without damage or account of profits.</p>

<p>Discovery—inspection of looks and papers—subpoena duces tecum — secs. 803 to 808, Code of Oivü Procedure.</p> <p>An application for an inspection and copy of books and papers must now be had under sections 803 to 808 of the Code of Civil Procedure, which are a virtual re-enactment of the provisions of the Revised Statutes upon this subject.</p> <p>Under the general rules of practice the plaintiff may compel discovery and inspection of books and papers which may be necessary to enable him to frame his complaint or to answer any pleading of the defendant.</p> <p>Where no such necessity is shown in the moving papers, but the plaintiff who admits that the claim in suit grows out of a mistake made in an account settled some two years ago, “verily believes that defendant’s check-book” will show such mistake, and asks inspection thereof, the defendant pleads payment and an account stated:</p> <p>Held, that the new Code does not authorize an application of this kind to enable a party to prepare for trial; and if it did, the defense of payment is a fact to be established by the defendant, and not by the party apply- • ing for the inspection.</p> <p>It seems, this is the true test of the application.</p> <p>The plaintiff has his remedy by subpoena duces tecum.</p>

<p>Motion to confirm report of commissioners of estimate and assessment.</p>

Before Davts, P. J., Beady and Ingalls, JJ. Motion to correct the calendar by striking the above-entitled cause from the preferred calendar, and placing the same in its proper order in the general calendar.

<p>Inn-keeper—who are so as to entitle them, to a license under act of 1857— Laws of 1857, chapter 628, section 6 — Mandamus.</p> <p>The keeper of a restaurant, who has no beds for the accommodation of travelers, is not an inn-keeper, and, therefore, is not entitled to a license under the act of 1857.</p> <p>A lodging-house keeper is not an inn-keeper, because he may send out and procure cooked food for his guests. A mere lodging-house, in which no • provision is made for supplying the lodgers with their meals, wants one of the essential requisites of an inn.</p> <p>A free lunch at the bar, or the occasional bringing of victuals from a neighboring restaurant, will not transform a drinking saloon into a hotel or an inn. A house which does not contain the means of preparing food for the table in the ordinary way has not, to use the language of the act, “ the necessary accommodations to entertain travelers.”</p> <p>But houses of entertainment in which the guest pays so much per day for his room, and takes meals or not, as he thinks proper, in the restaurant, paying separately for each meal as he takes it, where the restaurant forms a part of the establishment, and the house is kept under one general management for the reception of all travelers that may come, is an inn.</p> <p>Under the act of 1857 the granting of licenses is a matter discretionary with the board of excise until such time as they shall have decided or determined that the applicant is a fit and proper person to receive a license, and that all the requirements of the law are met and complied with. Until such determination the question of granting a license is an open one, with the decision of which the court cannot interfere.</p>

The complaint averred: (1.) That on the 1st day of June, 1874, at Bergen, in the state of Sew Jersey, the defendant, Charles D. J. Roelke, made his certain promissory note in writing, dated on that day, and thereby promised to pay to the plaintiff the sum of $1,000, with interest, payable semi-annually, one year from said date. '(2.) That the defendant, P. Noelke, indorsed said note when said Charles D. J. Noelke delivered the same to the plaintiff.

<p>Prniy wall—Adjacent owners may increase its hight—Equitable estoppel— Pcurol evidence— Covenant— Tenement-house.</p> <p>Either of the adjacent owners in a party wall may increase its hight when it can be done without injury to the adjoining building,' and the wall is of sufficient strength to bear the addition.</p> <p>'Brooks agt. Curtis (50 IT. T., 689) applied.</p> <p>The injury to the adjoining building, which would prohibit the addition, is physical—to the building itself—it does not embrace remote consequences, not the necessary result of the addition to the wall.</p> <p>The fact that the wall was finished when it was constituted, by deed, a “ party wall,” does not deprive an adjacent owner of his right to increase its hight.</p> <p>Representations, to constitute an equitable estoppel, must be of an existing fact, condition or relation; promises or undertakings, prospective in their character and obligation, do not constitute an estoppel “in pais.”</p> <p>White agt. Ashton (5t IT. T., 380), TaZmadge agt. East River Bank (36 id., 105) examined and applied.</p> <p>Oral statements and promises, made by a vendor during negotiations for the sale and purchase of real estate, as to the use to which he would devote his remaining and adjoining property in the future, do not, in equity, estop him from devoting his property to purposes other than those specified. All previous negotiations and statements are merged in the contract and deed afterwards created; no condition being imposed at the time of their execution and delivery.</p> <p>Covenants in the deeds under which the grantor held prohibited the erection of a “ tenement-house, ” or building or business noxious or offensive to the neighboring inhabitants.</p> <p>Held, that a “family hotel” was not a “tenement-house,” and that its business was not a violation of the covenant.</p> <p>“Tenement-house,?’ within the meaning of the covenants, defined (See qame case, 53 How. Pr., 311).</p>

Appeal by plaintiff, as purchaser in this and two other causes, from orders denying applications for orders directing the referee to state in the deeds executed by him, pursuant to foreclosure sales, whose right title and interest in the property affected was sold. The action was to foreclose a mortgage.

The plaintiff made a motion “for leave that the plaintiff may continue to prosecute this action as a poor person, and that the costs heretofore awarded against the plai/nUff in this cause be either canceled off the records or remain on the records, and the payment thereof abide the event. ” The action is brought by the plaintiff to “ reform a certain deed or conveyance obtained by the defendant by fraud, trick and device.” The answer of the defendant denied all the…

Davis, P. J., Beady and Daniels, JJ. Appeal from order denying application for a discovery of partnership books, and from an order denying an application for the examination of the defendants. The plaintiff was the widow and executrix of Mr. Philip Livingston, deceased, who during his life was a partner of the defendant.

On the 27th of December, 1877, an order was granted by justice Hardin for the examination of the defendant before a referee in supplementary proceedings. That order was personally served, and the defendant was required to appear and be examined the next day. Subsequently, an order was granted by the same justice for the plaintiff to show cause why the first order made should not be set aside and vacated for irregularity.

An order was granted on the twenty-seventh December, requiring the defendant to appear before a referee to be examined concerning his property on the twenty-eighth December, at ten a. m. Defendant did not appear; he left town early in the morning upon business, and left the papers with an attorney, with a request to have the order set a side for irregularity, and that he claimed privilege of process.

<p>Bupplemeniry proceedings — Privilege from service of process.</p> <p>Where a motion to set aside an order m supplementary proceedings has been granted, but no order to that effect entered, the judgment debtor cannot object to a second order on the ground of the pendency of the prior proceeding.</p> <p>A witness has a reasonable time to return to his residence; but if, instead of doing that, he proceeds about his business, he loses his privilege.</p> <p>The fact that the witness was arrested in another action, with which the plaintiff is in no way connected, and gave bail, does not continue his privilege.</p>

<p>Bond and mortgage to hank— Deposit—Bet-off.</p> <p>Defendant borrowed, July 5,1875, of The New Amsterdam Savings Bank, the sum of $5,000, for which he executed his bond and mortgage. On the 20th day of September, 1876, the bank became insolvent and passed into the hands of the plaintiff as receiver. At that time there was due and owing defendant, as a depositor of the bank, the sum of $1,748.01.</p> <p>Held, that plaintiff was entitled to a set-off for the amount of his deposit.</p>

<p>Motion for exoneration of 'bail after judgment, by which it is claimed that defendant was discharged from the obligation to render himself amenable to process {Oode, sec. 601).</p>

<p>Mortgages—equal Men of—presumption as to time of execution—recording acts — Merge/.r — Estoppel.</p> <p>Every grant must be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, and if not acknowledged prior to its delivery, its execution shall be attested by at least one witness, or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowledged (1 Eev. Etat., 788, sec. 189).</p> <p>The words “purchaser and incumbrancer,” in the foregoing statement, refer to subsequent purchasers and incumbrancers.</p> <p>The provisions of the Revised Statutes declaring any conveyance of real estate void as against a subsequent bona fide purchaser of the same real estate, does not apply to mortgages executed at the same time and designed to be equal liens upon the premises, as neither one is a subsequent conveyance.</p> <p>In order to avoid the effect of the recording act, giving to a mortgage a priority over other mortgages executed by the same party at the same time, by reason of the prior record of the mortgage, it should clearly and beyond doubt appear that all the mortgages were not only executed at the same time, but that it was agreed by the parties taking the mortgages that they should be of equal lien.</p> <p>There is no presumption arising" from the date of an unattested and unacknowledged mortgage that it was executed on the day of its date.</p> <p>The intention of the parties is often conclusive as to whether one instrument or interest is merged in another, or whether it is kept distinctly alive; and where the facts show that a mortgage was not intended to be merged in a deed, the mortgage will be upheld.</p> <p>Where the officers of a bank represented to the state official, who examined its asssets and condition, that certain mortgages held by the bank were valid securities, good morals and public policy will not allow them afterward to change their ground with respect to the goodness of the mortgages.</p>

<p>Assignee in bankruptcy — action to recover assets of bankrupt—in what court it must be brought—jurisdiction of state court—of United States district court—when exclusive—section3 of chapterBW of act of Congress of 1874.</p> <p>The city court of Brooklyn has jurisdiction of an action by an assignee in bankruptcy, to collect debts and recover property alleged to belong to the bankrupt. Such an action is not a matter or proceeding in bankruptcy, of which the federal courts have exclusive jurisdiction.</p> <p>The effect of the provision of the act of Congress of 1874 (eh. 390, sea. 3), is not to confer .or take away jurisdiction of the state courts, but simply to allow the federal courts of original jurisdiction, to decline to entertain actions at common law to which the assignee is a party, in which the debt demanded is less than the amount which determines the jurisdiction in other cases.</p> <p>The case of Olcott agt. Maclean (10 Sun, 377) distinguished.</p>

<p>Motion to vacate order of arrest.</p>

<p> Husband and wife—Sepa/ration—release of dower, when not effectual. </p> <p>Where a husband, about to separate from his wife, entered into an agreement in writing with her and a third person, whereby he guaranteed to her the undisturbed possession of $10,000, by him paid to such third person, as a trustee for his wife, together with her personal property, and the wife agreed to accept the provision in satisfaction of her dower right in her husband’s lands, which she thereby released:</p> <p>Held, that the agreement did not, in law, release or discharge her dower, and that in so far as the instrument purported to do so, it was a nullity. That, notwithstanding the agreement, the wife was not, in equity, estopped from asserting her right of dower in her husband’s lands after his death. A wife cannot, directly or indirectly, release her dower to her husband (Gaewn agt. Murray, 3 Paige, 483).</p> <p>Held, also, that the provision made for the wife, by the agreement, did not put her to an election between it and her right to be endowed in her husband’s lands.</p> <p>To put the wife to an election under section 13, title 3, part 1, chapter 1 of the Revised Statutes, the pecuniary provision alluded to must be tendered to the wife at her husband’s death, by last will or otherwise.</p>

The defendant, prior to March 9, 1877, was a member of a banking firm in Canandaigua. He became indebted with his partners to plaintiff and liable to arrest. On the 24th of March, 1877, this action was brought, and Mosher was arrested that day and gave bail in Ontario county. Judgment was entered April 28, 1877, for plaintiff, and execution issued against the property the same day to the sheriff of Ontario county and returned nulla bona, June 20, 1877.

The relator was appointed one of the inspectors during the election of 1876, in the twenty-third election district of the eighth assembly district in the city of New York.

This action was tried in the New York marine court. The jury found for the plaintiff. The trial judge, upon a motion made therefor upon his minutes, granted a new trial, and from this order the plaintiff appealed to the general term of the marine court, where, after argument, the order of the trial judge was reversed, and the verdict permitted to stand, for the reasons stated in the following opinion, in which the facts sufficiently appear.

<p>Vagrancy—House of Befuge for Juvenile Delinquents — Police justice — jurisdiction.</p> <p>An incorrigible son who disobeys the lawful commands of Ms mother, and who absents himself from home without her consent, cannot, by any . construction, be held to be a vagrant within the language of the acts in relation to the duties of police justices (Lems of 1833, cha/p. 11; La/ws of 1860, chap. 408), or the act of 1824 under which the house of refuge was incorporated.</p>

Demuebeb to complaint. Action by a trustee under a deed for permission to sell and convey real estate, or for liberty to raise money thereon by mortgages, to improve the same by erecting new buildings thereon in the place of those which were old and dilapidated, or that he be allowed to let the same for a long term, upon condition that the tenant should improve the same.

<p>Action to recover $1,560, being the amount of an award made to defendant Bowes by reason of damage done by the change of grade of Manhattan street.</p> <p>The defendant Bowes demurred to the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action against him.</p> <p>The demurrer was overruled with leave to answer, and from the order entered thereon the defendant appealed.</p>

<p>Mechanics lien — venden' in building loan coni/ract not liable as emner — act of 1863 repealed,—Laws 1875, chapter 379.</p> <p>The act of 1875 {Laws of 1875, chapter 379) engrossed the whole subject of mechanics’ and material-men’s liens, previously the subject of prior statutes, and repealed all such prior statutes on the subject.</p> <p>The vendor in a building loan contract is not liable as “owner” under the act of 1875.</p> <p>This act effectually limits the right of lien to such interest as the person undertaking to build and entering into contracts to that end possessed, and can in no respect haye any retrospective or retroactive operation upon the title of his vendor.</p>

Motion to vacate an order of arrest. The suit was upon a note for $591, which was renewed on July 3, 1877. The complaint simply set out the loan of the money at that time.

Motion by defendant Hart to vacate an order of arrest against him. The action is brought to foreclose a mechanic’s lien on property in this city and for personal judgment against Hart, the contractor, to whom plaintiffs sold material for building upon such property.

<p>Beferees — when not required to he sworn — Sections 1315 and 1016 Code of Civil Procedure.</p> <p>The Code of Civil Procedure requires no oath of office from a referee appointed under and pursuant to article 3 of the first title of the eleventh chapter, section 1315.</p> <p>Only referees appointed as prescribed by the second title of the tenth chapter need be sworn. .The requirements of section 1016, with respect to the administration of an oath to referees appointed as therein mentioned, does not apply to referees appointed as prescribed by section 1315.</p> <p>Where the statutory requirement is express that a referee must be sworn, the failure to take the oath does not make the judgment a nullity; it is a mere irregularity which may be waived by the parties or cured by subsequent action on the part of the court (This is adverse to The Exchange Eire Insurance Go. agt. Ea/rly, ante, 379).</p>

In June, 1876, plaintiff commenced an action in this court against his wife to dissolve their marriage contract, upon the ground of adultery. The wife answered by a general denial of the adulteries charged against her, and by way of a cross-complaint, alleged in her answer numerous acts of adulteries committed by the husband. The action was by consent referred.

Scheel being a resident of the state, but an alien, enlisted as a member of the fifth regiment, national guard of the city of Hew York. He now seeks to be discharged on a habeas corpus from imprisonment, to which he had been subjected under the judgment of a court martial for non-payment of fines, on the ground that being an alien he was not subject to military duty.

<p> Set-off of claim matured but not in judgment against judgment—when allowed—Attorney's lien for costs. </p> <p>Where the defendant is insolvent, cross-demands, although independent, will be enforced. When that element {insolvency) comes in, it is not necessary that the plaintiffs’ demand should be liquidated by judgment, nor that the defendant’s demand should even have matured. It is sufficient if the plaintiff’s demand be due.</p> <p>To require an undisputed claim would practically put an end to the right of equitable set-off. The line is really drawn at uncertain damages, such as rest in the sound discretion of a jury.</p> <p>The set-off (against a judgment) of a demand which has not been thus liquidated will only be allowed on bill filed. It will not be allowed on motion in a court either of law or equity.</p> <p>In an action to compel an equitable set-off of plaintiffs’ claim against A., matured but not in judgment, against judgment óf A. against plaintiff, assigned to his attorneys, where such attorneys made no agreement to receive an assignment of the verdict, at anytime previous to, or in anticipation of, its recovery, nor did they perform their services with any view of receiving compensation by or through the verdict in case they recovered one:</p> <p>Held, that, when the attorneys took the assignment of the verdict, the plaintiffs’ right of equitable set-off had already attached. The cross demands grew out of the same contract and A. was insolvent. The attorneys knew these facts and they took, therefore, subject to the equity in question.</p> <p>Held, further, that without such knowledge the result would have been the same on general principles applicable to the assignment of a nonnegotiable chose in action.</p> <p>But the attorney’s lien for costs can be protected. The present case is not within the statute of set-offs but plaintiffs’ rights flow from the inherent powers of a court of equity. The attorney had an equitable lien for his costs independent of, and long previous to, the assignment. As assignee of the verdict, the attorney’s equity is inferior to that of the plaintiffs; but their equitable lien for the costs is superior and paramount, and a court of equity has power to protect such lien.</p>

Clark forthwith to cause to be replaced upon the rolls of the Seventh regiment the name of Richard M. Jordan, and to restore him forthwith to his position as private in company “ Gr ” of said regiment. R. M. Jordan enlisted in company “ Gr,” Seventh regiment, national guard, New .York, in 1870; was a resident of Yew Jersey at the time and known to the officers of the Seventh regiment as such.

<p>New trial— Newly-discovered evidence—Prejudice of jury — Misconduct.</p> <p>A motion for a new trial on newly-discovered evidence will not be granted if the evidence is such that the defendant could have procured it.</p> <p>Where it appeared that after their verdict had been rendered the jury shook hands with the plaintiff and congratulated her, one juror telling her “to have no fear the old man (meaning defendant) was rich and she would get her money,” another juror saying “it was a skin game from the word go:”</p> <p>Held, that these remarks, notwithstanding their obscurity, indicate a lively attention to the merits of the case by the jury, and as they were not delivered until after the verdict was rendered and the jury discharged do not, and cannot, affect their verdict.</p>

<p>New trial—Excessive damages— Surprise—Newly-discovered evidence.</p> <p>In general, where there is no certain measure of damages, the court will not disturb the verdict of the jury on account of damages awarded, except for prejudice, passion or corruption of the jury, and where the verdict is palpably against the evidence.</p> <p>In actions for personal torts the court will seldom grant a new trial for excessive damages.</p> <p>A defendant cannot allege “surprise ” as a ground for a new trial, as to a matter in respect to which he cross-examined the plaintiff’s witnesses' closely, and also introduce evidence in his own behalf on the trial.</p> <p>In an action for libel the defendant should be prepared on the trial to show the defendant’s bad character in mitigation of damages, he cannot afterwards move for a new trial on the ground of newly-discovered evidence upon the subject.</p>

Motion by defendants to vacate an order heretofore made, requiring them to appear and be examined and make depositions in the above action.

In March, 1877, the appellant commenced an action in the first district court to recover $250 for brokerage in effecting an exchange of real estate.

<p>Appeal from order denying motion for new trial made upon judge’s minutes— proper mode of review — Ctee — Exceptions.</p> <p>Where, after verdict of a jury, a motion is made for a new trial upon the judge’s minutes and denied, the party desiring to reverse such decision, should have exceptions settled which would only present the legal questions made by exceptions to the rulings and decisions of the judge, with so much only of the evidence as might be necessary to present the exceptions.</p> <p>Where the general term of the supreme court had before it for review, upon a case containing, with the evidence and the trial at length, a statement that a motion for a new trial had been made upon the judge’s minutes and refused, and the order refusing the new trial:</p> <p>Held, that they could reverse as well for insufficiency of evidence, or other cause appearing upon the case, as upon exceptions; and the order of that court granting a new trial is not reviewable upon appeal to this court.</p> <p>Where the record brought into this court presents a case in which the court below may have granted a new trial upon questions of fact, or, in other words, when it does not appear by the record that the new trial must have been granted on questions of law, this court cannot review the decision.</p>

The defendant appearing in response to an order for his examination, at the instance of the plaintiff before trial, objects to being sworn for the reasons : 1. That the affidavit upon which the order was made is not the affidavit of the plaintiff, but of his attorney. 2¡ That the action is for libel, and that a party should not be examined for the purpose of compelling him to prove against himself the publication of a libel. 3.

<p>Motion to prefer cause.</p>

<p>Motion to vacate order of arrest.</p>

Araron to foreclose a mortgage. The facts are as follows: David J. Myers, one of the defendants, had, in the summer of 1872, a contract with one Loper for the purchase of certain property in the city of New X01'k> which included the premises described in the complaint and other real estate in the immediate vicinity, and was about building thereon.

<p>Motion to set aside order of arrest.</p>