Volume 55 — Howard's Practice Reports

<p>Orden' of wrrest— Complaint— Construction of section 558 of Code of Civil Procedure — section 561 — Omission of attorney’s signature, an irregularity which may be amended — sections 559-562— Omission to serve copy of undertaking at time of wrrest — effect of.</p> <p>Facts independent of the cause of action, entitling a party to an order of arrest, should he stated on affidavit, and should not be stated in the complaint.</p> <p>The only true construction to be put upon the last clause of section 558 of the Code of Civil Procedure is, that if the complaint served after obtaining the order of arrest should be for a case not mentioned in sections 549 or 550, but a case or cause of action wherein no provision is made for an arrest, then the moving party would be entitled to an order setting aside the order of arrest. It was not designed to extend or alter the rule that had been established under the old Code (Following Williams agt. Norton, 54 How., 509, and Thompson et al. agt. Ph'iedberg, id.} 519; and is adverse to Bowery National Bamk agt. JDuryea, id., 450). •</p> <p>That the order of arrest was not signed by the attorney, as required by section 561, is not fatal to the order of arrest. Although it is an irregularity which should not be overlooked or omitted in practice, such omission may be supplied by amendment under sections 728, 724.</p> <p>Whether the name of the attorney upon the back of the order, and not at the end or face of it, would be a sufficient compliance with the provision of section 561, gucere.</p> <p>The failure to serve a copy of the undertaking upon the defendant at the time of the arrest (as would seem to be required by sections 559, 562), is only an irregularity, and does not entitle a defendant to his discharge,</p>

<p>Nonmit— when would do a grievous wrong — when'cause should he opened, for further evidence.</p> <p>General usage, long continued and unquestioned, among public officers in matters pertaining to the discharge of their duties is of great force, and the practical construction thus given to the law has much of the weight of judicial decision.</p> <p>The action is for work done for the city of New York in the repair of sewers, and was ordered by the commissioners of public works, under the act of 1871 (chapter 220). The defendant insisted that the act of 1871 was repealed by chapter 835 of the Laws of 1873;' and that as the work had not been done by contract, as provided by section 91 of said latter act, the plaintiff could not recover.</p> <p>field, that, as the city of New York had had the benefit of the labor and materials of the plaintiff’s assignor, and as they were worth the price charged (which was admitted on the trial), and as the city had paid a part of the claim, a nonsuit, even though it followed the statute, would do a grievous wrong.</p> <p>field, further, that, in view of the difficulty created as to the legislative intent in these various statutes (in relation to work to be done for the city of New York), upon which subject the practice of the city officers since 1873, and the character of the work done by the assignor of the plaintiffs, will throw great light, the proper course is to open the cause for the reception of additional evidence, so that every fact bearing upon the construction of these statutes, on which this action depends, may be fully considered.</p>

On the refusal to nonsuit the plaintiff the cause was opened for the reception of additional evidence. The facts, as they appeared, are fully set forth in the opinion.

This action is brought by the survivor of two mortgagors in a chattel mortgage to set aside a sale made under the mortgage and for a resale. The plaintiff also asked for an accounting by the mortgagees, and that upon the payment of the amount found to be due on the mortgage the plaintiff be restored to his rights to the mortgaged property.

<p>This action was commenced in a justices’ court and was tried before the justice and a jury and a verdict given for the plaintiff. The defendant duly appealed to the Herkimer county court and judgment of reversal, with costs, was, on the 4th day of June, 1877, entered in favor of the defendant and against the plaintiff and an execution against the property of the plaintiff was issued and returned unsatisfied. On the 26th of September, 1877, the defendant issued .an execution against the body. The plaintiff was arrested on the same and confined on the limits of Herkimer county and now moves to be discharged from arrest upon the ground that it is not a case in which he could lawfully be imprisoned. The facts are stated in the opinion of the court.</p>

<p>Track-muvrk — when inyunetion wiU he gramted to restrain party from imitating (¡mother’s label.</p> <p>No man should he allowed to sell his goods as the goods of another, nor should he be permitted so to dress his goods as to enable him to induce purchasers to believe that they are the goods of another.</p> <p>Courts will interfere when it is apparent that there is an imitation of the plaintiffs’ label, whether as to color, shape or inscription, which imitation is calculated and intended to deceive the general public.</p> <p>Where it appeared that the plaintiffs had been for many years engaged in manufacturing sapolio ; that the article had acquired a great reputation and that the plaintiffs had expended very large sums of money in advertising; that the defendant after analyzing a cake of sapolio and ascertaining how it was made set about making an article similar in character, color and appearance to that of the plaintiffs:</p> <p>Held, that although he might possibly have a right to do this, yet when the court finds that the defendant after having possessed himself of the secret of the manufacture of the plaintiffs has, in addition, coined a name much resembling sapolio in appearance and which he admits is a fancy name, having no particular derivation or signification, and has then proceeded to encase his cakes of saphia in wrappers also closely resembling the plaintiffs, both in their external and internal appearance as to color, size, and partially as to inscription and directions for use, the court has the power to interfere and should exercise its power.</p> <p>Held, further, that plaintiffs are entitled to an injunction restraining the defendant from vending saphia in the blue package in which it is now sold.</p> <p>Although it was not the intention of the court to decide that the defendant had not the right to manufacture and also sell saphia, nor to restrain him from the use of that name, or of the figure or device upon the label, yet it was the intention of the court that the defendant should abstain from dressing his goods in wrappers so closely resembling the plaintiffs’ us to enable him to perpetrate a fraud.</p>

On February 8, 1866, the defendant S. H. Wilcox and wife gave to one David D. Houston the bond and mortgage described in the complaint herein to secure the payment óf $9,000, a portion of the purchase-money of the premises described in said mortgage. This mortgage was recorded in Orange county records in book 134 of mortgages, page 498, on February 12, 1866. The mortgaged premises are all situated in the county of Orange, Hew York.

<p> Bander —pleading—complaint—answer—demurrer. </p> <p>In an action for slander, an answer which merely avers as a defense that all the statements made by the defendant respecting the plaintiff are true, is bad.</p> <p>Where the truth of the slander is relied upon as a defense, the particulars must be alleged.</p> <p>Where the words uttered are actionable per se, no allegation of malice in the complaint is necessary, because malice will be presumed.</p> <p>In such a case, although malice is alleged in the complaint, an answer setting up by way of a defense that the communications were privileged need not allege that they were made without malice.</p>

<p>Demurrer to complaint. Action to set aside assessment for extending Madison avenue.</p>

Edmund Waring and wife had separated, the wife living in a house belonging to her husband, the husband living elsewhere. The Messrs. Sloan sold carpets to Mrs. Waring and sent a bill therefor to Mr. Edmund Waring. The Sloans made inquiry elsewhere as to Waring’s responsibility, but made no inquiry of Waring.

- In June, 1875, the petitioner brought a proceeding, under chapter 338 of the Laws of 1858, to vacate an assessment for paving Spring street, from Broadway to West street, alleging that the resolution and ordinance of the common council authorizing the improvement were not published prior to their adoption, as required by the charter of 1857, and that a previous assessment for paving the same street had been laid upon petitioner’s property, which was duly paid.

<p>Motion by the receiver, Mr. Edward Newcomb, upon the report of the actuary, Mr. Charles R. Knowles, for instructions.</p>

<p>Order of a/rrest—motion to vacate—construction of section 558.</p> <p>To justify vacating an order of arrest under the last clause of section 558, it must affirmatively appear by the complaint that the cause of action is such that in no event could the defendant be arrested within sections 449 or 450. (See, to same effect, Williams agt. Norton, 54 Now., 509; Thompson et al. agt. Nriedberg, 54 id., 519; Mather agt. Hanna/wr, ante, 1; contra, Bowery National Bank agt. Buryea, 54 How, 450.)</p>

This is an appeal by the plaintiff from an order of the special term vacating an order of arrest. The order of arrest was issued against the defendant for having been guilty of fraud in contracting his liability, for which the action was brought. The court vacated the order solely on the ground that the extrinsic facts alleged in the affidavits, upon which the order of arrest was granted, was not alleged in the plaintiff’s complaint (See 54 Sow., 450).

Demurrer to complaint. This action was brought for the purpose of obtaining an adjudication that a trust created by the plaintiff for the benefit of the plaintiff’s son and his wife, and their issue, was terminated and ended, or for the appointment of a new trustee in the place of the one originally named, who had died. The plaintiff’s son and wife had also died, leaving a son them surviving.

<p>Befe/ree—Bepoi't to be filed, within sixty days after submission — what'is a sufficient comffikmce with section 1019 of Code of Oivil Procedure.</p> <p>The submission to the referee was December 36, 1877. On February 33, 1878, the referee prepared, finished and signed his report, and on the twenty-third notified the attorney for the defendant that he had made his report for defendant and had left the same on his (the referee’s) table for the defendant’s attorney, and at the same time he stated to defendant’s attorney the amount of his fees. On the twenty-third or twenty-fifth of February the defendant’s attorney informed the plaintiffs’ attorney that the referee had made his report for defendant and that” the referee was about to prepare an opinion which he would serve with a copy of the report:</p> <p>Held, that the facts shown in the case and the notification made by the referee to defendant’s attorney was, in substance and effect, a delivery of the report to the attorney within the provisions of section 1019 of the Code of Civil Procedure.</p>

All the material allegations of fact are undisputed. It is admitted that, on the 25th day of May, 1875, the defendants executed the bond set forth in the complaint, conditioned for the faithful execution of the trusts reposed in the administrators of William R. Hazlett, deceased, and their obedience to all orders of the surrogate touching such administration.

Action in equity to compel defendant to issue to plaintiffs a paid-up policy for $8,000 as for eight-tenths of sum insured by policy issued by defendant on the 1st day of October, 1868, in the sum of $10,000.

<p> Action for cm injury to the person—Statute of limitation. </p> <p>Though the legislature may not pass a law impairing the obligation of contracts, it unquestionably has power to pass a statute which shall operate retrospectively, and sweep away any right of action that arose from a tort. The injury alleged occurred on the 13th day of March, 1873. At that time sections 74 and 91 of the Code of Procedure provided that an action for an injury to the person might be brought within six years after the cause of action accrued. This action was not commenced until the 7th of April, 1877. Before the action was begun, and on the 36th day of May, 1876, the legislature amended the Code by enacting that an action for an injury to the person should be brought within one year. The defendant pleaded the one-year statute of limitations. jHeld, to be a good defense.</p> <p>The statute of limitations acts retrospectively, for the rule is that that statute of limitations which is in force at the commencement of the action governs the rights of parties therein.</p> <p>' It seems that, if the effect of the statute impairs the obligation of contracts, the statute is void; but if the statute destroys a cause of action founded upon a tort, it is not for that reason invalid.</p>

<p>Motion for a peremptory mamdamus to compel respondents to award a contract to the relator.</p>

<p> TPorm of notice under mechanic’s lien law. </p> <p>The statutory lien afforded by the mechanic’s lien law of 1875 is strictissimi juris, and can only be made effectual upon substantial compliance with its provisions in all matters in respect to which it had in express terms exacted positive and direct statements as to the particulars specially mentioned, as opposed to mere legal inferences from other matters more or less distinctly or indistinctly asserted, or directly or inferentially inferable from such as are stated. The statute must be strictly censtrued.</p> <p>The vendor under contract to sell and make advances to aid the vendee to erect a building upon the premises is. not liable as owner under the act of 1875.</p> <p>The notice under this act is defective where it fails to state “the terms, time given and conditions of the contract ” of the plaintiff, made with the contractor, against whom, by the notice filed, claim is made for the alleged debt due the plaintiffs.</p> <p>The statute in these special enactments as to the particulars required by the fifth section of the act of 1875 is not content with such legal inferences as might be drawn from facts stated in general terms, but exacts a direct, precise andpositive statement of the following particulars, to wit: “ That the demand made is in exclusion of all just credits and offsets;” “of the name of the person (as principal) by whom the lienor was employed or to whom he furnished the materials;” “ of the terms, time given and conditions of the contract;” “and whether all the work or materials for which the claim is made has been actually performed or furnished, and if not, how much of it.”</p> <p>A notice under the mechanic’s lien law, which does not conform strictly to the foregoing requirements, is defective, and renders any lien sought to be established, ineffectual and void.</p>

<p>Appeal from judgment entered upon dismissal of the complaint at circuit. The facts fully appear in the opinion.</p>

The action is brought to restrain the defendant from interfering with the plaintiff’s business by threats, circulars and suits. It appears, from the pleadings and the testimony, that the defendant, under the name of Dundas Dick & Company, in the year 1865, began ijhe business of preparing and offering to the drug trade soft capsules, and that the plaintiff, from that time up to January, 1877, acted as general agent for the defendant for the sale of the said goods.

<p> Arrest—when pwty may he admitted to jail liberties. </p> <p>Defendants arrested in an action to recover chattels wrongfully concealed or disposed of, may, under the new Code, either give an undertaking to pay any judgment finally recovered, or be admitted to the liberties of the jail upon the ordinary limit bond.</p>

<p>Motion at the trial to dismiss the plaintiff’s complaint.</p>

The plaintiff seeks to recover certain lands under water in defendant’s possession under a lease from the department of docks. The lease is sought to be removed as a cloud upon their title. The defendant demurs to the complaint as not stating a cause of action.

Appeal by defendant from a judgment for $1,186, entered March 22,1876, upon the verdict of a jury, and from an order denying a motion for a new trial. The defendant was the owner of ISTo. 97 Myrtle avenue, in the city of Brooklyn. On June 1, 1875, the plaintiff became her tenant of rooms oh the third floor of the building. The deceased was the plaintiff’s son.

The action is brought to recover damages for personal injuries sustained by the plaintiff on the 22d of November, 1875, by falling into an unguarded opening extending from the yard of a public school building, in Vandewater street, in the city of New York, into the cellar of said building, in consequence of the negligence of the defendant, in allowing the covering thereof to be left open.

<p>Appeal from a judgment of foreclosure.</p>

Motion to vacate attachment. Action commenced June 16, 1877. Attachment procured. April 23, 1878, on the ground that defendants were about to dispose of their property, and to leave the state, in order to defraud their creditors.

The complaint contains seven causes of action, described as counts, each count being separately stated and numbered, and declared to be a separate and distinct cause of action. The defendants have demurred to each count separately, as stating no cause of action.

<p> Mortgages on canal boats—where and how to be filed—Notice. </p> <p>The provisions of the act of 1833 (Laws of 1833, chapter 279), as to the filing of chattel mortgages, so far as they apply to canal boats, are superseded and replaced by those of the act of 1864 (Laws of 1864, page 993). The filing of a mortgage on a canal boat (or a true copy thereof) in the office of the auditor of the canal department (as required by the act of 1864) gives it preference over all claims but existing claims, and, of course, preference over the claims of subsequent purchasers and mortgagees. No other filing is necessary.</p> <p>A person is not a purchaser in good faith where he purchases with notice of the prior mortgage.</p> <p>The question as to what is sufficient notice to put a party on inquiry as to the existence of a valid mortgage pointed out.</p>

Motion made by defendants’ counsel upon the opening of the case by the plaintiff’s counsel, and before any proof was offered, to dismiss the complaint.

Demurrer to complaint. This is an action, brought by the plaintiff against the defendant, to recover the sum of $1,575.20 with interest. The defendant demurs to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action (01ode of Gi/oil Procedure, sec. 488, sub. 8).

This was an issue of law raised by the demurrer of the defendant, The Atlantic National Bank, to the plaintiffs’ complaint. The action was brought by certain stockholders of the bank, in behalf of themselves and of all other stockholders who might join in the suit, against the directors of the bank, with whom was impleaded the bank itself.

This was an appeal by plaintiff from a portion of a judgment entered at special term in an action to foreclose a mortgage. The portion appealed from adjudged that the defendants, Henry, Curran and Bowen, were not liable for a deficiency upon the sale. On October 1, 1872, Cashman, the plaintiff, conveyed certain premises to Simon, and took from Simon a purchase-money bond for $20,000, secured by the mortgage in suit upon said premises.

This action was commenced by the plaintiffs against the defendants, who composed the firm of Mower & Crosby, collection agents, to recover the sum of $400. The facts are these: On July 21, 1874, the plaintiffs delivered to the defendants, for collection, a past-due note for $400, made by the firm of Lentz, Borie & Co., of Fort Wayne, Ind.

<p>The complaint, as originally served, stated the following as facts, viz.: On the 4th of April, 1873, and at different times afterwards, down to September 11, 1873, J. S. Morgan & Oo., the plaintiffs, who are bankers, issued letters of credit to the Atlantic De Laine Company, a Rhode Island corporation.</p> <p>When each letter of credit was issued the Atlantic De Laine Company agreed to furnish J. S. Morgan & Co. funds to meet their acceptances under such letter. At the same time Hoyt, Spragues & Co., a Hew York firm, guaranteed to J. S. Morgan & Co. that the Atlantic De Laine Company would keep its contract,- and in default thereof that they, Hoyt, Spragues & Co., would hold J. S. Morgan & Co. harmless of loss by reason of having issued said letters of credit.</p> <p>On the 30th day of June, 1873, Edwin Hoyt, who was a member of the firm of Hoyt, Spragues & Co., guaranteed to his said firm the payment of any and all sums of money which should remain due and owing to said Hoyt, Spragues & Co. after all the property of the said Atlantic De Laine Company should have been applied to the payment of the debts of said company, the intention of said guaranty being to secure to said Hoyt, Spragues & Co. the payment in full of any ascertained balance of account due them by said Atlantic De Laine Company, and in case of his death his personal representatives were to pay such ascertained balance, for which he would be liable under the above guaranty, without delay out of his assets in their hands applicable to the payment of his debts.</p> <p>The instrument containing this guaranty recited that Edwin Hoyt’s purpose was to give his firm his personal guaranty against any loss or deficiency which might at any time exist on the account of the Atlantic De Laine Company, for the-reason that he was a stockholder of that company while the other members of his firm were not stockholders.</p> <p>The balance of account due to Hoyt, Spragues & Co. from the Atlantic De Laine Company has not been ascertained. It does not appear that the indebtedness of the Atlantic De Laine Company to Hoyt, Spragues & Co. is limited to payments the-latter .has made or may make in respect to the plaintiff’s letters of credit, or that it does not arise out of transactions with many other parties.</p> <p>A balance amounting on the 1st of January, 1874, to $128,591.26 is due to the plaintiff for advances made under the letters of credit and unpaid.</p> <p>• The Atlantic De Laine Company has been adjudged bankrupt and Eobert E. Horthan, a defendant in this action, has-been appointed trustee of its property. The plaintiffs have proved their claim against the Atlantic De Laine Company, but h ave not received any dividend from its estate.</p> <p>Augustus D. Juilliard, a defendant in this action, has been appointed receiver of the property and effects of the firm of Hoyt, Spragues & Co.</p> <p>The plaintiffs recovered a judgment against the surviving partners of the firm of Hoyt, Spragues & Co., January 21, 1876, for $156,744.57, the full amount of their claim against the Atlantic De Laine Company with interest.</p> <p>The plaintiffs have received from Juilliard, as receiver, a dividend of ten-per cent on their claim of $128,591.26 against the Atlantic De Laine Company.</p> <p>Edwin Hoyt is dead and the defendants Francklyn and Butler are the executors of his will. The plaintiffs have presented to the executors a claim against Edwin Hoyt’s estate and the executors have rejected it.</p> <p>The plaintiffs insist that they are subrogated to all the rights | of said Hoyt, Spragues & Co. and their successors in interest in respect of said guaranty and indemnity, to them delivered by said Edwin Hoyt, and are entitled to have the same enforced for then* benefit, and the moneys payable thereon collected and paid upon their said claims and demands.</p> <p>The plaintiffs ask as relief that “ the balance of account due to Hoyt, Spragues & Co. from the Atlantic He Laine Company, may be ascertained and determined, and that the plaintiffs may be adjudged to be subrogated to all rights of said Hoyt, Spragues & Co., to collect the said balance so to be ascertained from the executors of Edwin Hoyt, and that the said executors of said Edwin Hoyt may be directed to pay the assets in their hands, applicable to the payment of the debts of said Hoyt, to the plaintiffs, to the extent necessary to satisfy the plaintiffs’ said claims and demands.”</p> <p>The executors of Edwin Hoyt demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against them.</p> <p>The demurrer was sustained and the plaintiffs had leave to amend their complaint, if so advised. Hnder this permission, they engrafted upon the ninth clause of their complaint the following words, to wit: “And that neither the said Hoyt, during his lifetime, nor his said executors since his death, has or have paid to said Hoyt, Spragues & Co., the moneys due and payable to them by him, nor otherwise satisfied or discharged, and his liability under said writing of guaranty, and his said executors have become now and are hable to pay the same, without delay, out of the assets in their hands applicable to the payment of his debts.”</p> <p>This was the only amendment. The same defendants demurred to the amended complaint and the demurrer was again sustained. The plaintiffs then amended for the second time by adding two lines to the second article of their complaint, and by expanding the ninth article to proportions they could not verify as true. The defendants again demurred.</p>

This action was brought for the recovery of damages for breach of the covenant in a charter-party of the brig “ Mary A. Rich,” executed by the defendants to the plaintiffs. The defendants, after attachment and service by publication, appeared (as they claimed) specially for the purpose of defending the property attached. The defendants set up, among other defenses : 1.

<p>Examination of parties before trial—sees. 870 and 872 Code of Qmü Procedure—sufficiency of affidavit on application for order.</p> <p>The examination of an adverse party before trial, provided for by sections 870 and 872 of the Code of Civil Procedure, is not a mere substitute fertile former remedy by bill of discovery.</p> <p>The provisions of these sections are far more than that. They provide a simple plan of perpetuating testimony, and were intended as a substitute for article 5, chapter 7, title 3, part 3, Revised Statutes (2 B. S., 398, 399). Section 872 embraces the equitable remedy of perpetuating testimony, as well as the equitable remedy of a bill of discovery, and under it a defendant is entitled to obtain the testimony of a plaintiff, as a means of repelling his action.</p> <p>In order to procure the examination of ah adverse party before trial, under sections 870 and 872 of the Code of Civil Procedure, it is not necessary that the applicant should present to the court an affidavit embodying all or the major part of the allegations that were requisite in a bill of discovery.</p> <p>It is sufficient under these sections to state in the affidavit that the testimony of the party sought to be examined is material and necessary, and without any further statement it would seem to be imperative upon the court to grant the order; it is not necessary to state the very facts and, circvmsta/nces, which the rules of equity pleading would have required to be stated in a bill of discovery. (Dalt. Oh. J., dissenting.) (See Phcenix agt. Dvpuy, 53 How., 158, andShepmoes&gt. Bousson, 52 id., 401.)</p> <p>Section 873 declares that the judge must grant the order when an affidavit is presented to him setting forth certain allegations. The applicant is not bound “ to make it appear ” to the judge, that is to convince him, by a mass of evidence, positive, direct or circumstantial, that those allegations are founded upon fact. The law requires the judge to take the applicant’s word for them.</p> <p>The plaintiff brought her action of ejectment. The defendants denied her right to the land in suit. The plaintiff alleged that she was the widow of the man from whom the defendants had inherited the property in controversy. The defendants had never heard that their brother, whose heirs they were, had ever been married. After issue joined, they-sought to examine the plaintiff as a party before trial.</p> <p>Held, that this was a proper case for such an examination.</p>

This is an action by 'a judgment creditor to set aside, as void, a mortgage made by the defendant corporation, upon the ground that the requisite consent of its stockholders to its creation had not been obtained, and also to restrain the holders of the mortgage from prosecuting an action for its foreclosure pending in the state of Connecticut.

The Atlantic and Great Western Bailway Company was incorporated under the laws of the states of Pennsylvania, Ohio and ¡New York. A mortgage upon the Ohio division was executed to one Meyer, as trustee, and another and subsequent mortgage upon all the property in the three states was executed to. Taylor and ¡Dunphy, as trustees, who brought suit in each of the three states to foreclose the same.

<p> Injunction restraining trustee of mortgage bondholders from carrying into effect cm agreement wlwr&y the terms of mortgage as to time and rate of interest were changed—when should be continued perdiente lite. </p> <p>Where an injunction was granted restraining a trustee of certain mortgage bondholders from carrying into effect an agreement whereby the terms of the mortgage as to time of payment and rate of interest were changed, and since the motion to dissolve the injunction was made an application has been made to another justice for the confirmation of the agreement, and such application has been refused by him, the injunction should be continued.</p> <p>The objection that the application was made, in an action in which the' first mortgage bondholders were not made parties, is of no force. If it would not be equitable to the second mortgage bondholders to confirm the agreement the court ought not to confirm it in any proceeding. The fact is before the court that there are second mortgage bondholders, and also that in an application made, in an action in which they were parties, the court has refused to confirm the agreement. If</p> <p>' the agreement is not just and fair to all parties it ought not to be-confirmed.</p> <p>The injunction should be continued when it is clear, from the papers, that if the trustee of one class of bondholders be permitted to carry out' the agreement injustice will be done to another class of bondholders.</p> <p>Where it is a very grave question whether the agreement is valid or not the injunction should be continued pendente lite.</p>

In the foreclosure suits brought by Taylor and Dunphy (See Taylor et al. agt. The Atla/ntic a/nd Great Western Railway Go. and others, ante 275) the same receiver was appointed in each state. An application was made in the New York suit by the United States Rolling Stock Company, as a creditor, for relief as against the receiver.

In each of the above-entitled matters a petition was presented to the court at special term praying that certain sales for unpaid assessments be vacated and canceled.

<p>Action for construction of a'will.</p>

<p> Justices’ court—Jumsdiction—Non-resident—Short attachment—what must he alleged in affidamt. </p> <p>Prior to 1831 non-residents could only be proceeded against by either a warrant or long attachment. Either process might be used in the commencement of suits against non-residents previous to the act of 1831.</p> <p>By the act of 1831 no new process for the commencement of actions against non-residents was created. This act withdrew from use (except in a few excepted cases) the warrant previously available against non-residents, and extended for use against them a summons, the use of which hitherto had been prohibited, and also shortened the time for the return of both the summons and attachment.</p> <p>Tn order to have the benefit of an attachment against a non-resident the applicant must aver the facts that are necessary to be now averred to entitle a party to a long attachment, and superadd to that the facts which change the time for its return from not less than six nor more than twelve days to not less than two nor more than four days. In other-words aver what is necessary to change it from a long to a short attachment.</p> <p>The affidavit must also give facts from which the justice (to whom the application for a short attachment against a non-resident is made) could judicially determine that the case is one in which a warrant could not issue, or at least it must furnish the best evidence attainable of the fact that a warrant could not issue.</p> <p>In an action brought in a justice’s court against a non-resident by a short attachment, the affidavit on which the attachment was obtained read as follows: “Oneida County, ss.: W. G., being duly sworn, deposeth and saith that P. J. is justly indebted to this deponent on a demand arising upon contract in the sum of seventy-six dollars or more over and above all discounts which the said P. J. may have against him. And deponent further saith that the said P. J. is not a resident of the county of Oneida, and that no warrant can issue against him on the demand of this deponent according to the act to abolish imprisonment for debt and to punish fraudulent debtors. ”</p> <p>Held, that the attachment was improperly issued because the affidavit does not state facts and cirau/mstances which, under section 36, article 3, title 4, chapter 3, part 8 of the Revised Statutes, or under section 34 of chapter 300 of the Laws of 1831, would entitle the plaintiff to a long attachment.</p> <p>Held, also, that the affidavit is defective, in that it does not give facts showing how the demand of the plaintiff arose upon contract, and that it states no facts or circumstances showing that the demand is not one in which a warrant could be issued against the defendant.</p>

<p>Mre insurance—Warra/nty by insured—Estoppel—Demurrer to a reply —</p> <p>Eefei'enee. ,</p> <p>Where the policy of insurance was issued to plaintiff as the owner of certain personal property, the language used therein importing that there was a warranty by her that she was the owner thereof in fact at the time of such insurance when she really was only the possessor of such property under a contract of purchase upon which she had made payments to a considerable amount, and where the defendant (the insurance company) was truly apprised by her, at the time of the application for the policy, of her interest in the insured property, and the company itself, after such information, writing the application, making out and delivering the policy as sufficient in form and language to indemnify the parties interested against loss by fire to the extent stated in such policy, and receiving from the insured the premium on the faith of the validity of the insurance: ■</p> <p>Held, that on such a state of facts the plaintiff was entitled to recover.</p> <p>When an insurance company has not been in any way deceived, and when it draws an application for a policy in a particular form, stating, in effect, that it truly embodies the position the party occupies as to the property from such statement, and then upon the receipt of the premium delivers a policy as valid and effectual to indemnify the insured against loss by fire to the property under the circumstances truthfully disclosed:</p> <p>Held, that such company cannot set up the want of literal and exact truth in the papers which it has itself prepared, and allege its own ignorance or fraud as a defense to the contract which it delivered as valid and legal.</p> <p>Upon such facts the company is estopped from denying the truth of the written statements which it has caused the insured to make.</p> <p>There can be no breach of a warranty unless its falsity can be "shown.</p> <p>Where both parties, with a knowledge of the actual facts, contract upon the faith that the legal position resulting from such actual facts is truly expressed in writing, and so long as there is no actual fraud or misrepresentation, both parties are concluded and estopped from denying the truth of that which has thus been expressed.</p> <p>The case of Kennedy agt. St. Lamrence'Bounty Mutual Insurance Oompamy (10 Barb., 289) commented on and criticised.</p> <p>. Where a policy of insurance contained a clause to the effect that “if differences of opinion should arise between the parties hereto as to the amount of loss or damage upon property partially damaged, the subject shall be referred to two disinterested and competent men, each party to select one (and in case of disagreement they to select a third) who shall, under oath, ascertain, estimate and appraise such partial loss or damage upon each article separately, and their award in writing shall be binding on the parties hereto, each party paying one-half the expense of reference: ”</p> <p>Held, that the insured could recover without an offer to refer, where there is no dispute “ as to the amount of loss or damage,” the only question being as to the validity of the policy. The clause in the policy provides only for a case of difference as to the amount of a loss.</p>

<p>Insurance, fire — Insurable interest—printed clause— Non-pa/yment of premium — Waiver—Parties.</p> <p>Where, by a policy of fire insurance, a portion of the loss is made payable to a third person, “ as his interest may appear,” the language imports an ownership in the property in such third person.</p> <p>A provision in the printed part of a policy of fire insurance, that “ if the interest of the assured be any thing more than the entire, unconditional and sole ownership of the property, * * * it must be so expressed in the written part of the policy, otherwise the policy shall be void,” may be waived by the company.</p> <p>The policy of insurance insured “ J. L. on her household furniture,” &c., &c., as described in the policy, “loss, if any, payable to A. S. and W. L., as their interest may appear.” The furniture upon which the insurance was effected was held by J. L. under an agreement for its purchase with the other two plaintiffs, A. S. and W. L., who retained the title until the purchase-price was fully paid, which price was to be paid in installments, she having, under certain restrictions, the right to possess and use the property. The policy contained, in the printed part thereof, this clause: “If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the said assured, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void.”</p> <p>Held, that J. L. had an insurable interest in the property.</p> <p>Held, also, that the provision in the written part of the policy,' that the “loss, if any,” shall be “payable to A. S. and W. L., as their interest may appear,” is equivalent to an express declaration that J. L.’s interest is less than that of “ entire, unconditional and sole ownership; ” and the requirement in the printed clause of the policy has been literally complied with by an announcement in the written part thereof that A. S. and J. L. have an interest in the property.</p> <p>Held, further, that even if the printed clause in the policy required the exact and tn'ue interest of the assured in the property to he stated in the written part thereof, the company have waived this requirement by issuing the policy and delivering it as one fully and completely obligatory.</p> <p>A clause in a policy of insurance requiring the payment of the premium before the policy takes effect may he waived, and such waiver may he shown by direct proof that credit was given, or may he inferred from circumstances.</p> <p>In an action on a policy of fire insurance, where the loss was payable to others than the party insured, the insured may he a proper and necessary party. In this case, though the loss was payable to others, from the nature of the insured’s agreement with them, she having obligated herself to pay them an agreed price for the property insured and damaged by the fire, she had an interest in the subject of the action, and in obtaining the judgment demanded, and was properly joined as plaintiff (Code of Procedure, sec. 446).</p>

<p>Assignment giving preferences — when and to what extent void under bankrupt act.</p> <p>Although an assignment giving preferences is void under the bankrupt, act, under the conditions therein provided, it is void only as to persons and proceedings under that act, and except as to such persons and proceedings it is valid as-ever.</p>

The defendant, Da Cunha, had a contract with the plaintiff, who was the owner of certain lots, of ground in Hew York, to build for plaintiff dwelling-houses thereon. Da Cunha was to be paid by installments, as the work advanced. He was, upon the completion of the work, and upon paying the plaintiff for the building and lots, upon terms fixed between them, to be entitled to the. premises.

<p>Motion to discharge or vacate order of arrest.</p> <p>The action was brought for goods, consisting of builders’ materials, &c., sold and delivered in the state of Hew Jersey.</p> <p>The defendant resided at Hempstead, Long Island; and the summons and complaint were served January 17, 1876, the amount claimed was $1,061.11.</p> <p>On January 13, 1876, an order for defendant’s arrest was granted by Mr. justice Pratt, on an affidavit of the plaintiff, setting forth alleged false and fraudulent representations as to his financial standing in the contraction of the debt, upon which the defendant was held to hail.</p> <p>The answer denied the amount of the indebtedness, and' offered judgment for $641.63.</p> <p>Further facts sufficiently appear in the opinion.</p>

The complaint states that the plaintiffs were husband and wife in March, 1875, when the assault and battery were committed upon the person of the female plaintiff, wife of the other plaintiff.

<p>Neferees —when required to be sworn — in what manner oath may be waived— Code of Civil Procedure, section 1016.</p> <p>The requirement of section 1016 of the Code of Civil Procedure, that “ a referee, before proceeding to hear the testimony, must be sworn faithfully and fairly to try the issues, &c., unless the oath be expressly waived by written stipulation or- orally, in which latter case the waiver must be entered in the referee’s minutes,” is directory merely, and may be-waived by the acts and acquiescence of the parties to the proceeding. Where the defendant and his attorney, both learned in the law, and with knowledge of the provision of this section as to the oath of the referee, voluntarily, and without objection, conduct the defense to an unsuccessful issue, which was followed by an acquiescence in the validity of the proceedings, as shown by an application for additional time to file exceptions to the report, and 'opposition to the motion for an extra allowance:</p> <p>Held,, that the defendant had waived his right to the statutory requirement as to the oath of the referee {See The Exchange Eire Insurance-Co. agt. Early, 54 Sow., 279; McGowan agt. Newman, id., 458).</p>

<p>Habeas corpus to inquire into the imprisonment of Emma Travis.</p>

<p>Discovery of documents before trial— what the petition must show and, point out to entitle a party to the order.</p> <p>The application for a discovery of documents before trial should be denied in cases where it is clear that they may be produced on an examination, before trial, of an adverse party, under a subpoena duces tecum, when the object is only to prove circumstances as "the foundation of relevant inferences, rather than a fact proximately probative of an issue.</p> <p>To entitle a party to a discovery of documents before trial, the party applying shall show, to the satisfaction of the court or judge, " the materiality and necessity of the discovery sought, the particular information which he requires, and that there are entries of the matters he seeks a discovery of” {Rule 15).</p> <p>The New England Iron Company, in its suit against the Metropolitan Railway Company, for $4,500,000 damages, for violation of a contract to furnish the iron for the elevated road, joined the New York Loan and Improvement Company as codefendant, claiming that the last-named company had aided and abetted the railroad company to commit the alleged breach of contract, the contract having been awarded finally to the Loan and Improvement Company. In the petition of plaintiffs for a discovery of documents before trial (alleged to be in the possession of the Loan and Improvement Company), it was claimed that these documents would prove circumstances of knowledge, motive and intent on the part of such company, showing that they knowingly ousted the plaintiffs from the benefit they would have derived from the performance of their contract.</p> <p>Held, that the petition should be dismissed on the ground that it did not point to the places where the information sought for existed, nor describe the entries, excepting by stating the supposed eSect as evidence rather than their intrinsic character.</p> <p>Also, on the ground that it did not show any reason for resorting to this method of proof, either in expediency or necessity.</p>

<p>Action for foreclosure of a mortgage.</p>

<p>Motion by plaintiff for a new trial upon tne judge’s minutes.</p>

<p> Attachment—Volwnta/ry assignment under laws of another state —precedence. </p> <p>A voluntary assignment under the laws of Ohio takes precedence of a fund in this state, as against a subsequent attachment instituted at suit of creditors.</p>

<p>Costs — Disbursements — Action for malicious prosecution.</p> <p>In an action for malicious prosecution, where the plaintiff recovers a verdict for six cents damages, he is entitled to six cents costs, hut is not entitled to disbursements.</p>

<p> Wat&r—property in—Bight to dispose of ice made from, waters of a pond. </p> <p>The ponder of waters has a right to make any use thereof which is not inconsistent with the rights of owners below. This right of use which may be to propel machinery, for domestic purposes, for sale and for hire, is property of which the owner cannot be deprived.</p> <p>So long as owners below are not interfered with a party who is the former and owner of the pond or basin which holds the water has the right to use such water for his own profit. He can use its momentum to propel machinery and let that right toothers; he can use the water for domestic and farming purposes, and can let, rent and sell that right to others.</p> <p>The right to use and to sell the water in its liquid form is only a part of his right. The ice made from the waters of the pond is so far the absolute property of the owner of the pond that he can sell or dispose of it as he could the trees or timber on his farm.</p> <p>The case of Marshall agt. Peters (13 Sow., 318) commented on,, and the doctrine therein announced dissented from.</p> <p>One S., at the time of the occurrence of the events out of which this suit originated, was and is now the owner of the land upon which the dam rests, and also was the owner of all the land covered by the waters of the pond, except a small part which belonged to O. O., by deed, conveyed to the grantor of S. “the right, privilege and liberty to overflow so much of the said lands above mentioned as are now, or at any time after may be, overflowed by means of the said dam, or by any other dam which may be erected in place of said dam.” In February, 1876, M. and R., of which the plaintiff is the survivor, purchased all the ice in the pond, formed or to be formed, from S. Previous to the gathering of the ice from the pond a freshet occurred which carried out of the pond a large part of the ice formed therein and loosened that which is in controversy in this action from the shore, and would probably have swept this out also had not plaintiffs, by holes, cut therein, fastened it to the shore and thus detained it. After plaintiffs had commenced to remove and gather the ice, the defendants went to the part of the pond, over O.’s lands, by permission of O. and cut a large quantity of ice thereon against the forbidding of the plaintiffs, and in spite of such forbidding opened a canal or channel across the pond, and over that part of it which was upon the land to which S. had title, and floated the ice, so cut by them, through such canal or channel, and gathered and sold the same.</p> <p>Held, that, an action for the recovery of the value of the ice so taken, could be maintained upon the ground alone, of the abstract right of the plaintiffs, obtained by the purchase from S.</p> <p>Held, fw'ther, that, as after purchase the plaintiffs had, by their own exertions, saved the ice from being lost by anchoring it to the shore, and by labor performed thereon, they were in actual possession when the defendants took and converted it, and are, therefore, entitled to recover.</p>

Knight, former supervisor of the town of Lumberland, in said county, for not paying over school moneys -to his successor, the relator.

The actions are brought for the purpose of foreclosing ten mortgages on ten adjoining houses and lots, situated in the city of Brooklyn, executed by the defendant Nichols and wife to the plaintiff, on the 29th day of September, 1874, each for the sum of $8,000, payable five years after date, with interest, semi-annually, at the rate of seven per cent per annum.

<p>The defendant being mortally ill and the action being at issue, motion was made to perpetuate the testimony of the defendant.</p>

<p>Action tried at Ulster circuit in January, 1878, without a j™7-</p>

Motion by plaintiffs to strike out answer as sham, false and untrue.

The above action was brought to specifically enforce a contract for the exchange of real estate, dated May, 1877. The defense set up, was misrepresentation, made by the defendant’s broker (one Roth) as to plaintiff’s property; that said broker had accepted a commission from plaintiff for the services he had rendered him (plaintiff ). The defendant claimed that this, in fact, constituted bribery on part of plaintiff.

<p>Motion to set aside an order for substituted service of a summons.</p>

<p>Motion that the attorney for the infant plaintiffs pay the costs of an appeal to the court of appeals, personally, for his misconduct in bringing the appeal.</p> <p>The plaintiffs, appellants, and the defendants, respondents, were infants.</p> <p>The general guardian and guardian ad litem of the infant defendants Muller, on the 12th day of January, 1877, obtained leave to appeal to the general term of the superior court of the city of blew York, from certain orders relieving purchasers from their bids under judgment sale herein, made by the said court. Before the opening of the appellate court, March fifth following, the appeal was discontinued without costs, by the parties appellants, and said purchasers^ respondents, and an order to that effect duly entered.</p> <p>Mr. Robertson, before judgment, had been attorney for Charles Struppmann in person, and Charles Struppmann as general guardian and guardian ad Utem for the infant plaintiffs. There was no retainer after judgment, but as he continued to act all parties were notified by Mr. Struppmann, as guardian, &c., to serve no further papers upon him.</p> <p>Mr. Robertson paid no attention to this, and although he was neither a party appellant or respondent to said appeal, which had been discontinued and order entered by the court and note of issue withdrawn from the general term clerk, he filed another note of issue, attended at the general term March 5, 1877, and upon the call of the case took an order affirming the orders appealed from with costs against the infant defendants.</p> <p>The orders which he thus affirmed, among other things, ordered his own client, Charles Struppmann, to pay $800 to the purchasers, respondents.</p> <p>TJpon the motion of the infant defendants, the next general term," on the 25th of June, 1877, vacated and set aside this order of March 5, 1877, and filed the following opinion:</p>

The plaintiffs, on the 27th day of February 1878, obtained from a justice of this court an injunction order restraining the defendants, as an executive board of the State Convention of Universalists of the State of Sew York, from proceeding to elect a trustee to fill the vacancy occasioned by the death of one Barnum who was a trustee of the Clinton Liberal Institute at the time of his death. The defendants have appeared and denied the complaint in material parts and points.

This action was brought to recover money claimed to have been paid by mistake of fact by plaintiff to defendants as partners. Plaintiff was administratrix of her husband’s estate against which defendants had a valid claim. Of this claim plaintiff, without being obliged to do so, paid a portion.

The action was brought to foreclose a mortgage made by Allen Hay to Joseph B. Hoyt for $18,750 and interest payable in installments of $3,750 each; an installment being payable on the first day of October in each year, commencing in 1868 and ending in 1872.

I. Ik these three cases the mortgages, bonds and decrees, and all subsequent proceedings, stand upon an exact equality as respects all the parties and the subject-matter of the suit. II. The petitioner, besides being a purchaser, is adjudged liable to pay any deficiency arising on the sale, by reason of his having guaranteed the payment of the bonds and mortgages. III.

Common law certiorari to review the proceedings of the hoard of police commissioners of the city of Troy, in removing the relator from the police force of said city.

<p>Justices of the peace—power to amend mittimus after imprisonment — what mittimus should contain. ■</p> <p>A justice of .the peace may amend his mittimus after a defendant has been imprisoned on it.</p> <p>A mittimus issued by a police justice or a justice of the peace on a conviction for petit larceny, which simply states the offense, conviction and judgment thereon, without averring the jurisdictional facts, is sufficient.</p>

<p> Mechanic's liens—what complaint must show—effect of death of contractor. </p> <p>There can be no lien unless the seller and the purchaser both understand, at the time of the delivery, that the materials were to be used upon a particular building, which the purchaser intended to construct, alter op repair.</p> <p>The complaint must show that materials were furnished for, as well as used in, the building covered by the lien.</p> <p>The death of the contractor will not prevent a sub-contractor from filing a valid lien.</p> <p>It is not necessary to set out in the complaint a recital of all that is contained in the claim filed with the county clerk. It is sufficient to allege, generally, that the plaintiff had filed the notice mentioned in the fifth section of the act {lien law of 1875), without specifying all the details which ought to have been stated in that notice.</p>

<p>Life insurcmce company—appointment of recmsers— duty of actua/ry— compensation of actua/ry.</p> <p>The duties of an actuary appointed by a receiver of an insurance company pursuant to theprovisons of the act {Laws of 1869, chap. 902), relate only to those specified in section 8 of the act, and terminates with his report, unless such duties are continued by the court, and the compensation which is to be paid must be fixed by the court, and is not under the control of the receiver, superintendent of insurance, or actuary.</p>

Motion to continue the injunction order restraining the theatrical performance or exhibition of the play or drama known as “ Diplomacy.”

Alberger, a judgment creditor of Samuel F Alberger, to vacate an attachment as to the property of, Samuel F. Alberger. Plaintiff recovered judgment in this action December 4, 1877, for $14,087.23.

<p>Motion for leave to sue upon a judgment rendered in this court between the same parties, nunc pro tunc, as of a day prior to the commencement of the action, and for an order allowing the plaintiff to amend his complaint so as to aver such leave. The affidavits of the plaintiff and his counsel showed an inadvertance, and excused the omission to get leave to sue, and that the statute'of limitations had run upon the judgment at the time of making the motion, but had not when the suit was commenced. So affidavits were read in opposition.</p>

<p>Overseer of the poor—duty as .to rendering account of moneys received— willful neglect a misdemeanor — Mittimus—in whose name should he issued.</p> <p>The act of 1863 {Lancs of 1863, chwpteri' 172) making it the duty of an overseer of the poor, of a town, to render an account to the town officers of such town, of all moneys received and disbursed by him, prescribes “no punishment ” for the “ willful neglect ” of the duty thereby enjoined. The “willful neglect” of such duty is therefore a misdemeanor and punishable as such (3 B. S. \6th ed.\p. 983, sec. 101).</p> <p>The mittimus may be either in the name of the people or that of the justice awarding it, but the latter is the most usual.</p> <p>The magistrate is authorized to commit by statute, and as he is clothed with power to do the act, and does do it, there can be no reason why he should be compelled to insert in the body of the commitment that he acts by the authority of the people.</p>

Action for a construction of the will of William Thomson, deceased, and to annul the appointment of testamentary guardians, made by the testator for his minor children. The portions of the will concerning which questions for construction arose were as follows: Seventh.

<p>Assessments for constructing Strains vacated—filling up sunken lots not contemplated by act of 1871, Laws of 1871, chapter 566.'</p> <p>An assessment will be vacated where in point of fact it is not levied for works which can be said to have been performed under the act.</p> <p>The act of 1871 (Lems of 1871, chapter/' 566) contemplated and provided for an assessment for expenses incurred in constructing drains. Where, as in this case, the great bulk of the assessment was for work done in filling up sunken lots:</p> <p>Held, that it was a “ svLstamMal error, ” within the act of 1874 (Laws of 1874, chapter 812), and that the assessment should be vacated and set aside.</p> <p>The corporation cannot, under the garb of exercising the authority conferred by a certain act, exercise another and a totally different power, conferred by other and different legislative acts, and involving another and different procedure.</p>

<p>Motion for a preliminary injunction and the appointment of a receiver.</p>

<p> Partition—wTienmll not he granted—real estate of inf ants. </p> <p>Adam Muller left Mm surviving Ms widow and four children, to whom he bequeathed by will the rents and income of Ms real and personal estate, one-half to Ms widow and the other moiety to his children, until the youngest attained the age of twenty-one, when, in case of the survival of the widow, one-half of the realty was to be set apart, she to retain the income therefrom until her decease, the other half to be equally divided among the children in fee. In case of the death of the widow before the event mentioned, the whole of the realty to be equally divided in fee, when the youngest child attained the age of twenty-one years, an event, it is conceded, that has not yet happened. Action was brought by the guardian of the infant heirs for partition, and, after sale of their lands, motion is now made to compel the purchasers to take title:</p> <p>Held, that the supreme court, as a court of equity, has no inherent original authority to direct the sale of the real estate of infants; and that the general provision of the statute declaring that “No real estate, or term of years, shall be sold, leased'or disposed of in any manner against the provisions of any last will, or conveyance by which such estate was devised to such infant,” was a proMbition upon the power of the ceurt ' to decree partition and rendered the proceédings void ah initio.</p>