Volume 58 — Barbour's New York Supreme Court Reports

ON the 7th day of June, 1865, a policy of insurance was issued by the above insurance company upon the schooner Alice Dell. By its terms the company is liable only for an absolute or technical total loss.

APPEAL, by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover damages for the obstruction of a certain water course, in the town of Sardinia and county of Erie, upon which a factory, owned and operated by the plaintiffs, and a saw-mill, owned by the defendant, were located, and to obtain an injunction restraining the defendant from further obstructing the water of said stream.

APPEAL by the plaintiff from a judgment entered upon the report of a referee, dismissing the complaint, with costs. The action was brought to recover damages for breach of a covenant of warranty contained in a deed.

WRIT of error to the Cattaraugus oyer and terminer, to remove an indictment and conviction for murder. On the trial, the defendant, Burdick, was sworn and examined as a witness in his own behalf. At the close of his testimony, the counsel for the people offered to prove the general character of the prisoner, for the purpose, and only purpose, of impairing the force and weight of his evidence with the-jury.

APPEAL by the plaintiff from a judgment entered at the circuit, upon a trial before the court without a-jury.. The action was brought to recover of the defendant the sum of $200, which the plaintiff alleged he had been compelled- by the defendant to pay, as a fine for an alleged assault and battery, of which he was convicted before the defendant, as a court of special sessions.

THE action was commenced in a justice’s court, where the plaintiff recovered, and®had judgment. The defendant appealed to the county court of Erie county, where a new trial was had, and a verdict for a larger amount was rendered in the plaintiff’s favor. Before judgment was entered on the verdict, the defendant made a case containing exceptions, and moved for a new trial in that court, which was granted.

APPEAL by the defendant from a judgment entered upon the report of a referee. The plaintiff and defendant, after about the 1st of. September, 1858, down to and into the year 1862, had mutual, open and current accounts with, each other. The plaintiff, during the ' time, kept quite an extensive jewelry establishment in the village of Lyons, and also carried on a large farm near said village. The defendant was and is a dealer in peppermint oil and produce.

APPEAL by the plaintiffs from a judgment entered upon the report of a referee dismissing the complaint, with costs. The plaintiffs alleged, in their complaint, that on or about the 10th day of April, 1866, Anthony Mason, of the town of Ridgeway, Orleans county, died intestate. That the plaintiffs were duly appointed administrators of the estate of said intestate, by the surrogate of Orleans county, and letters of administration were duly issued to them as such.

THIS ease comes before the court upon exceptions ordered to be heard in the first instance at the general term; the plaintiffs having been nonsuited at the trial. The suit is upon two separate claims or causes of action, both arising out of the same general transaction.

The action was tried at a special term, before Justice Murray, without a jury, a jury trial having been waived by the parties.

DEMURRER by the plaintiff' to the second defense in the defendants’ answer. The action was brought to recover damages of the defendants, for illegally excluding the plaintiff’s vote at an election at which they were inspectors. The facts are stated in the opinion.

THIS was an application to vacate assessments imposed upon the property of the petitioners, for the expense of constructing a certain sewer, in the city of Hew York. The construction of the sewer was directed by a resolution of the common council; proposals for the work were opened oh the 6th of April, 1865; and a contract executed on the 13th of the same month.

APPEAL, by the defendants, from a judgment entered upon the report of a referee. The action was brought to recover the amount of a promissory note for $150.70, given to one G-eorge W. Sherwood, by the defendants, which note was not negotiable, but was transferred to the plaintiff for a valuable consideration, before maturity.

Motion to vacate an assessment. George W. Douglass presented' his petition, asking, the court, under act of 1854, to vacate an assessment which had been imposed by the municipal authorities upon property belonging to him, for the expense of grading and paving Sixty-fourth-street between Third and Fifth-avenues. The facts on which he relied sufficiently appear in the opinion.

<p>A complaint stated that the plaintiff and defendant, being copartners in business, dissolved their copartnership, on a day specified, when it was agreed that an inventory should be taken of the assets of the firm, including the notes and accounts due to it, and that the defendant should pay the plaintiff one half of the amount of the inventory, deducting one half the liabilities of the firm, which the defendant assumed to pay; that such inventory was taken; the precise amount due to the plaintiff ascertained and agreed upon; and the defendant went into and remained in possession. The prayer was for an account of the partnership dealings, and that the plaintiff have judgment for the balance which should be found due him, on such accounting. Held that the complaint was clearly in an action at law; and the demand for an accounting was merely nugatory, it being not only wholly unsupported by any allegations in the complaint, but inconsistent with the case made by the complaint, which asserted that the account was adjusted, the amount liquidated, and the balance agreed to be paid.</p> <p>Held, also, that although it appeared from the findings of the referee that an account was necessary to settle the equities between the parties, and an action might be maintained for that purpose,' if the defendant should refuse to render such account, or to pay the balance ; yet that such was not the cause of action set up in the complaint, which was assumpsit, at law, and not an action of purely equitable cognizance. And that the referee erred in proceeding to take an account,</p> <p>An action at law, for goods sold and delivered, cannot be changed into an action in equity for an account between the parties.</p>

APPEAL by the defendant from an order made at a special term, denying a motion for a new trial. The action was brought to recover damages for injuries sustained by the plaintiff in consequence of falling into a hole opened and left by the workmen of the defendant, in a public sidewalk, crossing its tracks at Niagara Falls.

<p>Insurance. —Evidence oe Waiver oe Foreeiture. —Power oe Agent.—Case.</p> <p>In an action upon a policy of insurance, it appearing that the policy had been forfeited by default in the payment of premiums, it becomes incumbent on the plaintiff to showa receipt of the premium by some one authorized to receive it after forfeiture, or to show a ratification of an unauthorized receipt, by the company’s acceptance of the money with knowledge of the facts, or in some other way.</p> <p>Proof that payment, after forfeiture, was made to a clerk of the company, who, though authorized, in the course of business previously, to collect premiums, was not authorized to collect premiums on forfeited policies, is not, of itself, sufficient to establish a waiver of the forfeiture, especially where it appears that the company had never received the premium so collected by him.</p> <p>In such an action, the charter and by-laws are properly admissible to show who were authorized to remit forfeitures.</p> <p>Where the appellant seeks to reverse a judgment, on the ground that evidence offered by him was erroneously excluded, his case on appeal ought, properly, to present the rejected evidence, or such parts of it as show it to be admissible.</p>

APPEAL by the defendants from a judgment entered on a verdict. The action was on a promissory note made by the defendant Dwyer, and indorsed by the defendant Mossman. The note was made and delivered to one Dreyfous, and by him transferred to the plaintiff. The defendants showed that Dreyfous, and Dwyer, the maker of the note, had been partners; that they dissolved on the date of the note, by an agreement in writing, Dreyfous assigning the partnership assets to Dwyer for $500.

APPEAL by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

rnuis is an appeal from a judgment rendered for the 1 plaintiffs on the report of a referee. The action was to recover damages for the breach of a contract to carry petroleum on the deck of the bark Contest, from blew York to Cadiz, at $1.75 per barrel, payable in gold.

THIS action was prosecuted by the plaintiff to foreclose an equitable mortgage for part of the purchase money claimed by him upon certain real estate situated in Clinton county, conveyed by him to one William Cressey, in 1865. The defendants Whipple, Rousseau and Braman, alone defended.

THE defendant appeals from a judgment in favor of the plaintiff, entered upon the report of a referee. The action is for the recovery of money. The first count claims $300, “paid and advanced” April 9,1866, by the plaintiffs, to S. S. Stone, the defendant’s intestate. The second count claims $300 “ lent and advanced ” at the same time by the Troy National Paper Company to Stone. The third count is for $300, “ had and received ” by Stone, from Henry J. White.

THIS is an appeal from a judgment entered upon the report of a sole referee. The action is in the nature of trover, for the value of a horse. The report of the referee was in favor of the plaintiff, and the facts and conclusions of law were as follows: 1.

THIS action was brought by the plaintiffs as administrators of William Stevenson, deceased, against the defendant, upon book account, upon several promissory notes, and for balance due on a bond secured by a mortgage. The action was tried by a sole referee, who reported in favor of the plaintiffs $1158.20 as due upon the bond and mortgage, and found nothing due upon the account or the notes, but that they had all been paid and satisfied.

THIS action was brought to recover back money paid upon a promissory note, upon the ground that the note was obtained by fraudulent representations, and that it was given without consideration. The issues were referred to a sole referee, for trial, who found and reported the following facts: First.

THIS was an action in equity, in effect to remove a cloud from the title to certain premises in Chenango county, claimed to belong, equitably, to the plaintiff, but which were claimed by the defendants to be owned by them under legal title. The action was referred to a sole referee, who reported in favor of the plaintiff.

THIS action was commenced in a justice’s court, upon a promissory note for $150, dated April 15, 1868, payable 1st of November, 1868, with interest. The note was given by the defendant to the plaintiff; the consideration of it was for part payment of lands agreed to be purchased by an executory contract between the parties, under their hands and seals, of the same date as the note.

THIS was a proceeding by the relator under the statute entitled, “ Of forcible entry and detainer,!’ instituted before the county judge of Madison county, to obtain possession of a lot in the village of Oneida, in said county.

mHIS action was brought against the defendant Hen-1. dryx, late treasurer of Otsego, and the other defendants as his sureties in the official bond for faithful performance &c., to recover $332.84, claimed to be the balance in the hands of Hendryx as late treasurer. Hendryx claimed it as his legal fees and commissions for services as treasurer.

11HIS is an appeal from an order made at special term, . granting a mandamus to the defendants, supervisor, town clerk and justice of the peace of the town of Lisbon in the county of St. Lawrence, commanding them to issue to the relator a certificate of indebtedness of said town, as bounty due for military service, in pursuance of a resolution passed at a special town meeting of said town.

mHIS is an appeal from a judgment entered upon the JL report of a referee. The action was upon a promissory note drawn by one John Sibson, of which the following is a copy: “ $1800. Elmira, Feb. 5, 1868. Three months after date I promise to pay to the order of C. M. & H. W. Beadle, eighteen hundred dollars, at the National Bank, Chemung; value received.

nUIIS is an action for partition. The complaint alleges JL that William L. Hobart, the father of the plaintiffs Chester L., Almira L., Caroline H. and the grandfather of the plaintiffs Byron F. and William L. Hobart, died in Potter, Tates county, on the 19th of July, 1865, intestate, seised of the lands mentioned in the complaint. That the said William L., at the time of his death, left the plaintiffs and the defendants, his children and grandchildren, his heirs at law.

THIS action was brought to recover of the defendant, as a common carrier, damages for so “ carelessly unloading” a lot of hides at the defendant’s Savona station that they were spoiled. On the trial it appeared that the defendant as a common carrier undertook, in Hovember, 1868, to transport a lot of hides for the plaintiff, from Hew York to Savona; that the hides arrived in the defendant’s car, at that station, on Monday the 9th day of Hovember.

The action was brought by the plaintiff, as administrator of Isaac Shephard, deceased, upon a policy of insurance against fire, issued by the defendant to the intestate, in his lifetime.

In the year 1861, Margaret S. Graves was the owner of a separate estate, consisting of valuable premises situate in the village of Geneva, 2ST. Y., upon which she then resided with her husband, the planitiff in this action. At the same time, the defendant, Clarinda H. Spier, was also a married woman, the wife of David S. Spier, and resided with her husband at Albany, hi.

<p>MOTION for judgment upon a verdict m favor of the plaintiff, taken subject to the opinion of the court. The facts are sufficiently set forth in the opinion of the court. ,</p>

The action was brought to recover the sum of $748.72, one half the net profits due and belonging to the firm of Gutchess & Yawger, from the defendants, on a boat load of wheat consigned to the defendants and sold by them, in 1867, which claim was assigned to the plaintiff onthe22d of November, 1867.

MOTION by the plaintiff, for a new trial, upon a case and exceptions.

<p>In an action by a husband against his wife, for a decree declaring a divorce obtained by her, from her former husband, in Illinois, void for want of jurisdiction and for irregularity, the complaint admitted that both parties went to Illinois, and that both appeared in the action there; Bold that such appearance clearly gave the court jurisdiction over the persons of both parties; and whether the court could grant a divorce depended not on jurisdiction, but upon the pleadings and evidence in the case.</p> <p>Bold, also, that the plaintiff could not avail himself of such causes to have a marriage between him and the defendant declared void, when he, at the time, had knowledge of the divorce, and that the defendant had gone to Illinois to procure one.</p> <p>Even if this court could, within a proper time, declare a judgment for divorce, rendered in the State of Illinois, void, no such action should be taken after the judgment has become absolute, and the time for appealing has expired, so that it cannot be reversed in that State. The judgment is then final, and the rights of the parties, under it, are perfect; and this court should not interfere with it.</p>

THIS is an appeal from a judgment entered upon the verdict of a jury, at the Schoharie circuit, in October, 1867. The action was for malicious prosecution. The defendant brought four successive actions in a justice’s court, against the plaintiff, three of which were discontinued, and the fourth resulted in a verdict against the present defendant, who was the plaintiff in those . several actions.

rpHIS is an appeal from a judgment entered on a verJL diet directed by the court, and also from an order refusing a new trial. The plaintiff, previous to July 8, 1868, was a resident and owner of real estate in the town of Canton, N. T. The defendants were the assessors of said town for the year 1868.

APPEAL by the plaintiff from a judgment dismissing the complaint, and from an order denying a motion for a new trial. This action was brought by the plaintiff to recover damages for an injury suffered by him from falling down a hatchway of the barge Pilgrim. It was admitted by the defense that the barge was owned by the defendant George C. Byrne. The accident occurred at Jersey City, 3ST. J., in August, 1863. The plaintiff was then mate, and in charge of the steamer Oriole.

APPEAL by the plaintiffs from a judgment sustaining a demurrer to the complaint. The complaint alleged that at the various times therein mentioned, and during the whole of the month of September, 1863, the plaintiff Clinton L. Merriam and one William J. Bell were copartners doing business as stock brokers in the city of blew York under the firm name of Merriam & Bell.

THIS action was brought to recover the value of a horse, which was injured by falling through a pier, of which the defendant was lessee. It was tried at the circuit, before Justice Sutherland and a jury.

The action was brought by the plaintiffs as executors of James B. Laing, deceased, to obtain a construction of his last will and testament. Held: invested and applied for the purposes aforesaid as therein directed. Fourth. I give and bequeath my gold watch to my friend, Henry H. Van Yleek, of the city of Hudson, in case he should survive me. Fifth.

OH July 26,1862, at ivlaiaga, Spain, the plaintiff obtained from James H. Hewitt, master of the bark Reindeer, belonging to W. A. Sale & Co. of Hew York, an order on said Sale & Co. for the payment to the plaintiff of $>176.33J, balance of wages due one John H. Hanson, as mate of said bark, which order the plaintiff subsequently sent to the defendants, with a direction to Sale & Co. to pay said amount to the defendants, written thereon and signed by the plaintiff, and which…

THIS is an action for claim and delivery of goods of the value of $605.91. The defendant Brandt alone answered.

APPEAL by the plaintiff from a judgment entered at a special term dismissing the complaint. The action was brought by the plaintiff to compel the specific performance by the defendants, as vendors, of a contract for the sale of lands.

<p>In March, 1870, an action having been noticed for trial by both parties, judgment by default was granted, in favor of the defendant. In April thereafter, that default was opened, upon terms which included setting the case down for trial for the fourth Monday of that month, at special term. Held that the terms upon which the default was opened were discretionary; and that no point could be raised, upon them, against the regularity of the trial in April, unless the cause was in such a condition, as to issue, as not to be triable.</p> <p>Held, also, that; if the cause was at issue, then, whether it had been noticed or not, would be wholly unimportant if the judge saw fit to include going to trial as one of the conditions of opening the default.</p> <p>Whether a cause can properly be brought to trial as against one defendant, when not at issue as to the others, where no previous order for a separate trial has been allowed by the court 7 Quaere,</p> <p>A party, by noticing a cause for trial, must be considered as admitting that it was at issue at that time, and is estopped, by that act, from objecting that issue was not joined.</p> <p>Until issue joined, a plaintiff has no right to notice the action for trial; and after having brought the defendants to court upon his (the plaintiff’s) notice, the latter cannot be heard to say that they had been improperly brought there, if the defendants do not see fit to make the objection.</p> <p>Although an appeal lies from an order for an allowance, yet when the allowance is granted at the trial, by the judge then presiding, who has seen and can best appreciate whether it is a difficult and extraordinary action, it must he a very glaring case of an excessive allowance which can justify interference with his discretion by an appellate tribunal.</p>

THIS action was brought to recover damages-for the conversion of four certificates of Atlantic Mail Steamship Company’s stock, each for 100 shares, which the plaintiff, in his complaint, alleged had been deposited with the defendant on or about the 21st of December, 1866, as security against any loss which the defendant might sustain on purchases and sales of gold coin, to be made for account of the plaintiff.

APPBAli oy tne plaintiffs from a judgment at the circuit dismissing the complaint. The plaintiffs were merchants doing business in the city of Hew York.

THIS is an appeal from a decree of the surrogate of the county of Hew York, settling the accounts of executors and ordering payment of legacies. The question presented by the case was whether the claims made by the appellants were barred by the statute, by reason of the omission of the claimants to commence suit thereon within six months after the time when the same were rejected by the executors, or after they became due.

This action was brought upon an indenture of lease, made and executed on the 9th day of June, 1865, by and between the plaintiff and defendants, whereby the former let to the latter certain premises therein described, from the 1st day of July, 1865, for the period of five years; at a rent agreed upon. The complaint simply alleges the making of the lease, and the non-payment of the installment of rent for which the action is brought.

Proceedings under the act of 1858, to vacate an assessment. These proceedings were brought to vacate assessments imposed on the property of the petitioner, for paving Irving-place, Nineteenth, and Sixteenth-streets, in the city of New York, with Nicolson pavement. The proceedings were taken under the acts in relation to frauds in assessments for local improvements in the city of New York (Laws of 1858, p. 574, ch. 378).

The action was brought to recover a package of money delivered to the defendants to be transported by them. The facts were these.

THIS is an appeal by the defendants from a judgment rendered against them on the report of a referee. The facts sufficiently appear in the opinion of the court.

<p>Where a carrier delivers goods to a person who has assumed to purchase them of the consignor, in the name of a firm, or to some one authorized by such person, and therefore to the person or persons to whom it was intended by the consignor that they should be delivered, he is not liable to the latter for the value of the goods on the ground that there has been a misdelivery.</p> <p>Where, in an action brought by the consignor, against the carrier, for the value of the goods, the claim was not that the goods were not delivered to the very party to whom they were intended to be delivered, but that such party had assumed a fictitious name, or had falsely pretended to be doing business as a copartnership, at the place where the order was dated, for the purpose of obtaining the goods without payment; Held that the truth or falsity of the representations should have been ascertained by the plaintiff before he parted with his property. And that the omission to do so was his negligence, and not that of the carrier.</p> <p>A carrier is responsible for the delivery1 of the property to the party entitled to receive it, according to the address; and- delivers it at the peril of being held liable for its value in case of any mistake in that particular. But if he delivers the property to the persons to whom it is addressed and to whom it was intended by the consignor that it should be delivered, the fact that the ' goods were obtained from the consignor by means of a fraud, and without payment of the price, will not render the carrier liable for such delivery.</p> <p>Until the consignor, in such a case, shall have repudiated the sale, there can be no strictly legal right, on the part of the carrier, to withhold the property from the actual consignee, any more than though possession of it had been obtained by any other fraud; and upon tender of the freight, by the consignee, is bound to deliver the property to him.</p> <p>In these days of extensive traffic, carriers could not abide the consequences of a rule which should impose upon them not only the responsibility of delivering the goods to the actual consignee, but that of determining whether the circumstances are not such as lead to a well grounded suspicion that some fraud has, by the use of fictitious names or otherwise, been perpetrated upon the consignor. JPer Talooti, 3.(a)</p>

THIS was an action in the nature of an action on the case, for false and fraudulent representations made by the defendant to the plaintiffs, whereby they were induced to purchase from the defendant his interest in a certain fruit-jar business.

<p>Where a married woman, since the acts of the legislature, of 1860 and 1862, concerning the rights and obligations of married women were enacted, being possessed of real estate as her separate property, bargains and sells the same, and joins with her husband in a deed thereof, which contains covenants of seisin, of warranty, and against incumbrances, such covenants are binding and obligatory upon her-, so far as to render her separate property liable for their non-performance.</p> <p>And an action will lie against her, to recover damages for a breach of the covenant against incumbrances, in the same manner as if she were sole; the object of such action being to satisfy the plaintiff’s demand, out of her separate estate.</p> <p>The statute, neither by its language, nor its fair import, requires the complaint, in such an action, to show that the defendant has separate property.</p> <p>The effect of the act of 1860 is that, in the actions provided for, the defendant may, though married, be sued and prosecuted precisely as if she were a single woman.</p> <p>But this construction does not extend the section prescribing the obligation by means of the covenant beyond its ordinary and natural import; for it can in no possible event render the liability greater than that declared by the statute; as nothing more than the defendant’s separate property can be taken for the purpose of satisfying the judgment.</p>

THE action was brought to set aside two assignments of a bond and mortgage as fraudulent, and was tried at a special term in Saratoga county, before Justice Bocees, without a jury, in January, 1871. It appeared upon the trial that the defendant Hugh McGuire, at the commencement of the year 1870, and while owning and living upon a certain farm, situated in the county of Saratoga, became indebted to the plaintiff.

THE relator, upon an affidavit and notice, applied to a special term of this court held at the city of Brooklyn, for a peremptory mandamus directing the defendants to exclude from the parade ground of the county of Kings, all organizations existing outside of that county, and to confine and limit its military use to the organized national guard of that county.

. The complaint,.in substance, avers that the plaintiffs are partners, in the city of Sew York, as dealers in teas and coffees, under the firm name of “ J. Stiner & Co.,” and that they conduct their business under the style of the “Eew York and China Tea Company,” their principal warehouse being at ISTo. 49 Yesey street, in said city.