Volume 6 — Abbott's New York Practice Reports

This action comes before the general term on an appeal by the defendant from an order made by Mr. Justice Hoffman, dated October 28, 1857, denying a motion made by the defendant on the judgment-roll, to vacate, for irregularity, a judgment entered on the 16th of said October for $3944.45 and costs.

This was an action brought to enjoin the collection of a tax, imposed, as the plaintiff contended, illegally. The defendant demurred, and assigned for grounds thereof that the complaint did not state facts sufficient to constitute a cause of action. At special term judgment upon the demurrer was given for the defendants, on the ground that a court of equity had not jurisdiction to restrain the collection of such a tax.* From this judgment the plaintiff appealed.

<p>Actions to charge separate Estate oe Married Women.— Requisites oe Complaint.</p> <p>A complaint seeking to charge the separate estate of a married woman with her debt, is bad upon demurrer, if it does not set forth the property which it is sought to reach, and the nature of her interest in it,*</p> <p>' * To the same effect is the dissenting opinion of Wright, J., in Dickerman v. Abrahams, 21 Barb., 651. For the proper form of complaint in such an action, and the proper demand of relief, see Abbotts’ Forms of Pleadings, 85, Form No. 56, and notes.</p> <p>Such a complaint does not disclose a case upon which the court could give any equitable relief.</p>

Motion to vacate order of arrest. This action was brought; by the Knickerbocker Life Insurance Company of New York, against Joseph B. Ecclesiue, for an alleged libel upon the coiporation plaintiffs. The plaintiffs obtained from one of the justices of the court an order for the arrest of the defendant; and alter he had given bail, he applied to the justice of the court holding the special term to vacate the order or reduce the amount of bail.

Question of costs submitted by consent. The plaintiff moved, under section 247 of the Code, for judgment on account of the frivolousness of the defendant’s demurrer to the first cause of .action stated in the complaint. The application was granted, with $10 costs, and plaintiff’s damages were directed to be assessed by the jury on the trial of the issue joined on the second cause of action, unless the defendant complied with certain conditions within five days.

Motion to set aside complaint. The action was for damages for breach of promise of marriage. The defendant moved to set aside the complaint on the ground that the cause of action stated in the complaint did not agree with the cause of action indicated by the notice in the summons.

Motion that defendant’s answer be stricken out as sham. The action was against the defendant as maker of a promissory note.

The plaintiffs having obtained an order of arrest, an attachment, and an injunction in this action, the defendants moved, upon affidavits, to vacate those orders.

Demurrer to an alternative writ of mandamus. This was a writ issued on the relation of Benjamin F. Kipp and others, overseers of the poor of the town of Otsego, in the county of Otsego, against Edwin M. Harris, the treasurer of Otsego County.

Demurrer to answer. This action is upon a promissory note for $500, made by the defendant to the order of one Hogarty, payable three months after date, and by the payee indorsed to the plaintiff before maturity.

The plaintiffs were owners of a draft payable in Milwaukee, which they indorsed, and sent through Lee & Co., bankers, of Buffalo, for collection. Lee & Co. indorsed it, and sent it to the defendants, a Milwaukee bank, who were their correspondents, and between whom and them commercial paper was constantly remitted and received for collection.

<p>Attachment.—Fraudulent Intent.—Requisites of Affidavit.</p> <p>On a motion to vacate an attachment, the plaintiff’s affidavits in opposition are to be received only for the purpose of explaining or contradicting the moving affidavits ; and unless the attachment can be sustained on the original affidavits, it should be discharged.</p> <p>Proof that the debtor threatened to make an assignment for the benefit of creditors, is not in itself sufficient to authorize the granting of an attachment.</p> <p>But a threat to make an assignment, and put his property out of his hands, unless his creditor would accept a part in full, is presumptive evidence of a fraudulent intention.</p> <p>Under the act to abolish imprisonment for debt, it was the general practice to treat the declarations of the debtor as sufficient evidence of his intent, without waiting for acts tending to put that intent to effect; and they should be so treated under the provisions of the Code.</p> <p>The same rule is applicable to affidavits upon an application for an order of arrest. Whether an affidavit showing that the debtor was about to leave the State or to assign, <fec., and that the creditor believed that his intent was fraudulent, would be sufficient to authorize the issuing of an attachment,—Query l</p>

Motion to strike out an answer as sham. This was an action brought by William Kiefer against John J. Thomass, Daniel Winkens, and Kathi his wife, William Steinway, executor of the last will and testament of Charles Steinway, deceased, and John Twéddle. The complaint was for the foreclosure of a mortgage made by Winkens and his wife, to secure a bond given by Thomass and Winkens.

<p>Appeal from a judgment.</p> <p>This action was brought in the superior court of New York, on behalf of Amelia Traver, by A. Bull, her guardian, to recover damages of the, defendants for an injury alleged to have been caused by the carelessness of the defendants’ servants, while the plaintiff was a passenger on one of their cars. After the injury was received, and before the commencement of this action, the plaintiff intermarried with one Collins, but in the summons and complaint in the action she was designated by her maiden name.</p> <p>The plaintiff was about eighteen years old at the time of the injury, and but a few months past twenty-one at the time of the trial.</p> <p>Upon the trial, evidence was received as to how much the plaintiff could earn per week, prior to the injury, and that some money had been expended in taking care of her the last year preceding the trial, to which the defendant’s counsel excepted.</p> <p>The defendant moved for a dismissal of the complaint, upon the ground, among others, that the action was improperly brought in the maiden name of the plaintiff instead of the name acquired by marriage. The court dismissed the motion, and defendant’s counsel excepted.</p> <p>It appeared that an action had been previously brought by the plaintiff’s mother, and a recovery had for the loss of services of the plaintiff, and the expense of taking care of her.</p> <p>The court charged the jury that nothing could be recovered for these causes in the present action. The jury rendered a verdict in favor of the plaintiff for twenty-five hundred dollars.</p> <p>The superior court at special term, denied a motion for a new trial. The j udgment entered on the verdict was affirmed, on appeal, by the court at general term, from which the defendants appealed to this court.</p>

<p>Appeal from an order.</p> <p>This was an appeal by the defendant from an order of the general term of the supreme court of the first district, affirming an order of .Mr. Justice Barnard, made in proceedings supplementary to execution, committing the defendant to prison as for a contempt in not paying the plaintiff the amount of two judgments recovered'by the plaintiff against the defendant.</p> <p>The facts are as follows:</p> <p>The plaintiff Brush, as executor of one Robert Hyslop, deceased, commenced a suit against the defendant Lee, and one Hiles to remove a cloud upon the title to certain real estate in Brooklyn, which had been sold under an execution against said Hyslop, and recovered a judgment on May 9, 1864, for $186.79, and costs. Subsequently on May 17, 1865, another judgment was recovered against him for $111.25 and costs. Execution was issued upon said judgment, and having been returned unsatisfied, on January 29, 1866, supplementary proceedings were commenced against the defendant. On the following day an order that the defendant should make discovery concerning his property, &c. was made and duly served upon him. The proceedings hereunder were regularly adjourned at his request, until March 10, 1866, when he was duly sworn, and his examination was thereupon again adjourned, at his own request, until March 13, 1866. On the 13th Lee failed to attend. Upon an affidavit showing these facts, an order to show cause, returnable on the 16th inst., why Lee should not be punished for his misconduct, was, on March 14, 1866, duly issued by Mr. Justice Babhard. This order, and the affidavit upon-which it was granted, were duly and personally served upon Lee the same day. On March 16 Lee appeared personally upon the return of the order to show cause, and an order, expressing that it was upon his consent, was made, that he pay certain amounts therein specified, being the amounts due on the plaintiff’s judgments' against him, and $30 costs of the supplementary proceedings, within five days. This order was modified ex-parie, three days later, by striking out the recital of Lee’s consent, and inserting instead an admission that he had money enough to pay the judgment. This order was duly and personally served upon Lee on the day upon which it was made. The order was not complied with, however, although payment was duly and personally demanded of Lee after the five days had expired. Upon affidavits showing these facts, find upon all the prior proceedings, an order to show cause, returnable on March 27, why Lee should not be punished for his misconduct and contempt was, on March 23, 1866, issued by Mr. Justice Barhard. This order, and the affidavits upon which it was granted, were duly and personally served upon Lee, on the same day. Lee attempted to show cause, and read in opposition two affidavits of his own, two affidavits of Ms counsel, James J. Colwell, and affidavits of George W. Wiles and David Melio, "but lie gave no reasons in any of said papers for his disobedience of said orders, and did not deny such disobedience. He was adjudged guilty of contempt in having, among other things, willfully disobeyed the order ■ of March 16, 1866, and was committed until he should pay the sums which he was required to pay by the order of March 16, 1866, and also the sum of ten dollars for plaintiff’s costs of the contempt proceedings, together with the fees of the sheriff on the precept and the commitment.</p>

This action was brought by Reuben Hinds against Stephen Page. It was tried in a justice’s court before D. Harrington, Esq., Justice, and a jury. Plaintiff complained generally on a book account, and for services and materials in making a line fence in pursuance of the statute. • The defendant denied the complaint, and claimed an off-set for book account, work, labor and services rendered for the plaintiff.

Motion by plaintiff to be relieved from personal liability for costs. This action was brought by William B. Smith, a receiver appointed in certain supplementary proceedings, against Samuel B, Woodruff. The plaintiff brought the action as such receiver, but brought it without leave of the court.

This was an action of claim and delivery. Issue was joined, and the cause was noticed for trial by the plaintiff’s attorneys for June term, 1857, and the cause placed upon the calendar. It was regularly called in its order, and was passed and marked down, for the reason that the plaintiff was not ready to try it. The defendant appeared at the time, and was in readiness to try the cause.

This was an action on a policy of insurance. The facts which raised the question of practice presented, appear in the opinion.

This was an appeal from a judgment entered upon the decision of a judge, the parties having waived a jury. On April 4, 1855, the plaintiff recovered a judgment in this court at special term, against Garret Van Cl eve, Joseph Carpenter, George R. Jaques, and William H. De Groot, for $1,153.90.

<p>Cause oe Action.—Delivery by Carriers.</p> <p>An action does not lie against carriers by steamboat, for loss of goods occurring after landing them upon the wharf and the lapse of a reasonable time for the consignee to send for and remove them, where, by the settled usage of business between the parties, the consignees were accustomed to send for their goods at the wharf, and no negligence on defendants’ part is shown.*</p> <p>If the consignee’s place, of business was closed on the day of arrival, the carriers are excused from giving him notice of the arrival.</p> <p>It makes no difference that such day was the fourth of July.</p>

<p>Application to open a judgment and set aside an inquest taken against the defendant.</p>

Demurrer to complaint. The plaintiff leased the premises mentioned in the complaint to John T. Bailey & Brothers, by a lease, dated March 1, 1855, for three years, from May 1, 1855, at $1660 per annum, payable quarterly. The lessees entered and continued in possession until August 28, 1857, when they assigned the lease to the defendant, who accepted the same, and immediately thereafter entered into possession and continued therein up to December 5,1857.

<p>Divorce. — Enforcing Order for Alimony and Allowance.—Commitment for Contempt.— ' Form of Prfofpt.</p> <p>An order requiring a husband who is plaintiff in a divorce suit, to pay counsel fee and allowance to the wife, may be enforced by the court by allowing a precept to issue therefor.</p> <p>In a case of any doubt as to the plaintiff’s means, the application for a precept may be allowed to stand over with a stay of proceedings, upon the plaintiff’s paying a proper part of the sum required, and areference being directed to ascertain his means.</p> <p>Upon a breach of an order requiring the payment of alimony in a divorce suit, a precept cannot be issued adjudging the party to be in contempt, and imposing the payment of the money it was issued to collect, as a fine. The precept should be in such form as to entitle the prisoner to jail limits.</p>

<p>Pleading.—“ On Infoemation and Belief.”</p> <p>It is unnecessary, in any case, for the plaintiff to distinguish, in his complaint, the allegations which are made on information and belief.*</p> <p>* To the same effect is The New York Marbled Iron Works v. Smith (4 Duet,362) But compare Levy a. Ley (post, 89).</p>

Motion to continue a temporary injunction, and for the appointment of a receiver. The facts sufficiently appear in the opinion.

Exceptions. This action was brought by Stephen Y. R. Watson, against the New York Central Railroad Company. It was an action of ejectment for certain lands situate in Buffalo, and was tried before Mr. Justice Masten, at a special civil trial term of the court. Evidence was given tending to prove, and the court found the following facts, viz: That this action was commenced January 23, 1866.

<p>Motion for the appointment of a receiver in proceedings supplementary to judgment.</p> <p>The facts sufficiently appear in the opinion.</p>

Motion in a foreclosure case, after issue joined, to stay the plaintiff from further proceedings, on payment of the interest in arrear.

Motion to set aside judgment for costs, and execution thereon, as irregular. The action was on a promissory note. The complaint stated the plaintiff to be indorsee and owner of a note ■ for $400, made by defendant, and demanded judgment for the $400 and interest. In November, 1854, judgment was entered against the plaintiff for the defendant for costs.

<p>Attachment.—Fraudulent Intent to Assign.—Requisites of Affidavit.</p> <p>A threat by a debtor that he would assign and put his property out of his hands, made in words which may be construed to mean that he would make a lawful assignment, is not, without any evidence of contemporaneous or subsequent acts showing a fraudulent intent, a sufficient ground for an attachment.</p> <p>That the defendant threatened to assign and put his property out of his hands, so that the plaintiff should get nothing, unless the plaintiff would accept a part in full, is not presumptive evidence of a fraudulent intention.</p> <p>The case of Wilson a. Britton (Ante, 33) reversed.</p>

Action submitted upon agreed statement of facts The defendant Ilardenbrook was the owner of six lots of ground lying together, three of which lots fronted upon Thirty-sixth street, and the other three on Thirty-fifth street, thus forming one parcel.

This was a creditor's action, brought by the plaintiffs against the defendant Stryker, their judgment debtor, and others, his assignees and grantees. The complaint sought to set aside a general assignment which had been made by Stryker to the defendant Manning, in trust for the benefit of the creditors of Stryker, bearing date December 26, 1854, on the ground that the same was made with the intent to hinder, delay, and defraud the creditors of Stryker.

In May, 1853, the defendant Fowler gave to the plaintiffs a mortgage for $52,890, on a tract of land, containing upwards of thirty-five acres, situate in Richmond county. Held: and does hold, debt ( For one, before such an interest should be allowed to defeat such a suit as this, and under such circumstances, I think the parties should be held to some strictness of proof.

In January, 1857, the plaintiff and the defendants Schlieper and Haarhaus formed a copartnership for the transaction of an importation and commission business, under the firm name of “ Wetter, Schlieper & Haarhaus,” to continue for three years. The place of business of the firm was at the city of Hew York, where the partners resided. In May, 1857, the plaintiff went to Europe, temporarily, ■on the business of the copartnership, to solicit consignments.

<p>Contracts.—Reasonable Time of Performance.— Pleading- Excuse.—Revenue Stamps. —Burden of Proof.—Objection to Evidence.</p> <p>Under a contract by a firm doing business at A., that they would ship merchandise from B. to the plaintiffs at C., specifying no time within which the shipment is to be made, the contracting party is to be limited to a reasonable time, that is, only so much as is necessary to send notice of the contract to the place at which the shipment is to be made, and to complete a shipment there commenced immediately on the receipt of the notice at such place.</p> <p>Circumstances, in the nature of excuse for delay, which are not shown to have been mentioned at the time the contract was entered into, nor then known, ór presumable to have been then known, to the plaintiff, cannot be considered in determining what should be deemed a reasonable time to enable the defendant to perform.</p> <p>To entitle a defendant to the benefit of an act of God relied on as an excuse for a non-performance of a contract, it must be pleaded as an affirmative defense.</p> <p>After a breach of a contract to ship goods within a specified time, an offer by the purchaser to furnish vessels, or his directing a shipping broker employed in pursuance of such offer, as to the character of the vessels to be so furnished, does not change the rights of the parties under the breach of contract.</p> <p>An objection to a contract or other instrument that it is not stamped as required by the revenue laws, is unavailing, unless the party objecting proves that the stamp was omitted with intent to evade the act of Congress.</p> <p>The burden of proof is upon the party objecting, to show that the omission of the stamp was with such intent.</p>

<p>Felony.—Common Gambler.—Beqüisites op Indictment.</p> <p>A penal statute that prescribes punishment, in the discretion of the court, by-imprisonment in either the penitentiary or the state prison, and by a fine, is not void because in many of the counties of the State there is no penitentiary. Whether it might render the statute inoperative in those counties,—Query?' Where a statute prescribes, as a punishment for an offence, imprisonment in a state prison, although, in the discretion of the magistrate, a lesser punishment may be inflicted, the offence becomes a felony, unless its grade of crime is otherwise specifically declared by statute. But such a declaration—e. g., that an of-fence, punishable by imprisonment in the state prison, was a misdemeanor only— must be clear and explicit in the statute, and not drawn, by way of argument, from general expressions.</p> <p>The words “ common gambler,” in the act of 1851 (Laws of 1851, 943), and the act of 1857 (Laws of 1857, 204, § 9), defined.</p> <p>A violation of the statute of 1851 is a felony, notwithstanding that, by the statute of 1857, a common gambler may be, in certain cases, convicted of misdemeanor. The statute against the sale of lottery policies is not void or inoperative because it describes them merely as “ what are commonly known as, or are called, lottery policies.”</p> <p>Of the requisites of an indictment for offences created by statute.</p>

<p>Habeas corpus and certiorari to inquire into the detention of the defendant.</p> <p>The facts sufficiently appear in the opinion.</p>

Application of an insolvent to be discharged from his debts, pursuant to the provisions of the Revised Statutes.

<p>Appeal from an order.</p> <p>This action was brought by Elizabeth Baker on ah insurance policy upon the life of her husband issued by the defendants. The plaintiff recovered judgment, and the defendants appealed to the court at general term.</p>

This action was brought by Benjamin F. Taber against Noah H. Gardner. The complaint was verified, and alleged that the plaintiff delivered to the defendant a certain specified number of sides of sole leather belonging to the plaintiff, to be by the defendant dressed, and then returned to the plaintiff; that the defendant wrongfully and carelessly delivered said sides of leather to some other person, whereby they have become lost to the plaintiff.

A.ppeal from an order requiring the plaintiff’s attorney to receive unverified answers. This was an action for libel. The substance of the complaint (which was verified) is stated in a report of previous proceedings in the case (4 Ante, 446). Two answers were served,—one on behalf of the alleged author of the article complained of, and the other on behalf of the publishers of the newspaper in which it was alleged that the article was published.

<p>Certiorari.—How addressed.—Amendment.</p> <p>On an application for a certiorari to remove into the Supreme Court proceedings of trial and dismissal of members of the police force, the papers disclosing doubt as to the regularity of the proceedings,—Held, that their regularity ought to be established beyond all question, and a reference was the proper course to ascertain the facts.</p> <p>A writ of certiorari' to bring proceedings of the Board of Police before the Supreme Court should be addressed to the Board, and it is defective if ad' dressed to all the members of the Board, individually, as commissioners.</p> <p>■Such a writ may he amended even after a return made, and a new return directed to be filed.*</p> <p>* Compare The People on rel. Murphy a. The Metropolitan Police Commissioners (5 Ante, 241).</p>

This action was brought by George Campbell, a husband, against George W. Carter, his father-in-law; the plaintiff averring in the complaint his marriage to the defendant’s daughter and their happy living together until the grievances alleged, and the birth of a son, who at the time of suit brought was five months of age.

<p>Presumption of Payment.—Foreclosure.— Pleading.</p> <p>The presumption of payment, declared by the statute to arise after the</p> <p>. lapse of twenty years from the time a right of action accrues on a sealed instrument for payment of money, is not available to the owner of the equity of redemption of land, to defeat a foreclosure, if the mortgagor has made payments upon the bond and mortgage within twenty years of the commencement of the foreclosure.</p> <p>A mortgage having been duly recorded, the grantor of the equity of redemption takes his title subject to the lien of the mortgage, and the mortgagor still has the power to prevent the exoneration of the land through the presumption of payment arising from lapse of time, by making partial payment or written acknowledgment. Hence, a- purchaser finding a mortgage upon the"land, cannot rely upon the presumption arising from the lapse of twenty years, but must ascertain, at his peril, whether anything has been done to repel the presumption arising from that fact.</p> <p>An answer alleging payment of the debt is the proper- mode of presenting as a defense the presumption created by statute arising from the lapse of twenty years. Per Grover, J.</p>

<p>Police.—By-law.—Mode of Bemoval.—Notice.</p> <p>When a statute prescribes the mode of acquiring jurisdiction, the mode pointed ' out must be complied with, or the decision will be a nullity.</p> <p>The act creating the Board of Police for the Metropolitan Police District provided that the mode of trial of policemen, and their removal from office, should be particularly defined and prescribed by the rules of the board; and that no person should be removed from the force except upon written charges preferred against him to the board, and after an opportunity had been afforded him of being heard in his defence. The rules adopted by the board pursuant to the act provided that charges preferred must be in writing, and sworn to or affirmed, <fcc., unless made by a member of the board or officer, &a., and that the accused should have two days’ notice to examine the charges and make answer to them, after which a trial might be had at any meeting of the board, of which the accused had been advised.</p> <p>Held, that a member of the force could not be removed upon charges preferred and tried, otherwise than in conformity to these rules; and that in order to sustain a removal, it must appear, not only either that the charges were preferred by a commissioner, &c., or were sworn or affirmed to, but also that the accused had notice to call and examine the charges, and also had personal notice of the time and place of the trial</p> <p>A certiorari is the proper remedy to procure a review by the Supreme Court of the proceedings of the board.</p> <p>The case of McDermott a. The Board of Police (5 Ante, 423) approved.</p>

Demurrer to complaint. The facts stated by the complaint were, briefly, that a contract was made at Brownsville, in the State of Texas, in December, 1848, between Jacob Mussina, one of the plaintiffs, and the defendants, Stillman and Belden, by which they were jointly to-purchase and hold certain lands, constituting the town of Brownsville, on the left bank of the Rio Grande.

This action was brought by Julius Poerschke against John P. A. Kedenburg to foreclose a mechanic’s lien on premises No. 27 East Houston street, in the city of New York. The lien was filed with the county clerk on September 4, 1866. On or about August 1, 1867, the plaintiff commenced proceedings in this court to foreclose his lien. He omitted, however, when the year had expired, to have his lien continued by an order of the court, as the statute provides.

<p>Books and Papers.'—Affidavit to obtain Order for Discovery.</p> <p>In an application for a discovery of books and papers, whether it is made under the provisions of the Code or of the Revised Statutes, the petition or affidavit of the moving party must state definitely what it is that he seeks to discover, so that the court may see that it is material to the case.</p> <p>It seems, that entries, of which a discovery is sought, must be described with sufficient certainty to enable the adverse party to ascertain whether such exist in his possession.</p> <p>When the people of the State are the parties making such application, the necessary facts must be stated, not on the information of the petitioners, but the person from whom such information is derived should himself make the affidavit or petition, and state the facts positively, or the nature of the information he has of them.</p>

This action was brought by Isaac V. Place against Richard H. Miller and others. The plaintiff alleged that he had been induced to sell goods to the defendants by false and fraudulent representations made by them as to their capital and solvency, and as to the persons who composed their firm.

<p>Recording oe Deeds.—Certificate of Clerk to Authority of Magistrate without the State.</p> <p>Under the act of 1856 (Laws of 1856, 84, ch. 61), providing that acknowledgment» of deeds may he taken out of this State, before such persons as are authorized' to take such acknowledgments by the law of the place where they reside,—and requiring that, in such case, a certificate that such person was so authorized, shall be annexed, under the name and seal of the clerk of the county, register, recorder, or prothonotary, or of the clerk of the county court, clerk of the district court, or clerk of the court of common pleas of the county in which such officer resides,—it is not the duty of a recording officer of this State to record a deed acknowledged out of this State before a person whose authority is certified to by the clerk of the circuit court of his county.</p> <p>In such a case, it is not competent to resort to the laws of the other State to show that such clerk of the circuit court is, ex officio, clerk of the county; but the certificate must show on its face, and without extrinsic proof, all that is required by the statute.</p>

<p>Justice’s Judgment.—Requisites of Notice of Appeal.— “Weight of Evidence.”</p> <p>A notice of appeal from a judgment of a justice’s court to the New York Common Pleas, must spécify, with reasonable certainty, the alleged error, whether in the process, the pleading, the proceedings at the trial, or in the giving of judgment, so that the adverse party, as well as the justice, may be fairly apprised of the ground on which a reversal of the judgment is sought.*</p> <p>The Court of Common Pleas will, on the appeal, confine the appellant to those grounds which are stated in the notice.</p> <p>A judgment will be affirmed where the only ground of appeal specified in the notice is that it is against law and evidence.</p> <p>On an appeal from a justice’s judgment for the plaintiff in an action for the wrongful detention of personal property, the ground specified in the notice was, that the judgment was against, the weight of evidence; but the only evidence disclosed by the justice’s return was that of a witness for the plaintiff, who testified as to the value of the property; and it did not appear from the return that any evidence was given on either side as to the detention,—Meld, th^t upon such a notice the judgment must be affirmed.</p> <p>The objection, that a judgment is against weight of evidence, is only appropriate to the case of conflicting testimony unfairly weighed, and is not proper in the case of a judgment which is erroneous for the want of evidence, or for being contrary to evidence.</p> <p>* In the case of Davis a. The New York & Erie Railroad Company, which was a similar appeal decided at the same term with Lee a. Schmidt, the judgment was affirmed, for the reason that the notice of appeal omitted to specify any ground,</p>

<p>Appeal from a judgment.</p> <p>This action was brought by Conrad A. Crounse and William Crounse, respondents, against Ebenezer A. Fitch and A. Crounse, upon a promissory note. The defenses were, 1. That Fitch was the surety of P. A. Crounse, and that while the latter was responsible- Fitch requested the holder, after the note became due, to proceed and collect it of the principal, but the holder neglected so to do until P. A. Crounse became insolvent. 2. That the note had been paid by the principal.</p> <p>Upon the trial at circuit, numerous exceptions were taken by the defendants to the rulings of the judge, upon the admissibility of evidence, which appear in the opinion.</p> <p>The jury rendered a verdict for the plaintiffs, upon which judgment was rendered, and was affirmed by the supreme court at general term, reported in 14 Abb. Pr., 346, where the evidence is stated. The defendant Fitch appealed to the court of appeals.</p>

This action was tried before one of the justices of the court and a jury, in February, 1858. Among other witnesses, the plaintiff called one Fanny B. De Barre, who had been previously married to the defendant. The defendant’s counsel objected to her being sworn, on the ground that she was incompetent as a witness against her husband.

Order to show cause why proceedings of claim and delivery should not be set aside. In February, 1858, Andrew Ross, one of the defendants in this action, commenced, in the Supreme Court, an action against Davis and Bassford, to recover the possession of certain personal property. In that action Ross took proceedings of claim and delivery, under section 206, &c., of the Code. Pursuant to a requisition, the sheriff took the chattels in question.

<p>Error to the supreme court.</p>

The amended complaint in this action stated for a first cause of action—“ That on February 5, 1857, and for a long time previous thereto, the plaintiff was the lawful and sole owner, and in the custody and possession at his store, 13 South William-street, in the city of New York, of the following personal propertydescribing the goods. “ That while in the peaceful ownership and possession of the property, and on the 5th of February, 1857, at the city of New York, William…

This action was brought by a husband against his wife, for a divorce, on the ground of alleged adultery. The nature of the charges and defenses sufficiently appear from the opinions. Upon the usual application at special term, Judge Beady awarded the defendant a weekly allowance of fifty dollars, beside counsel fee. From this order the plaintiff appealed.

February, 1857.—Demurrer to complaint. The action was against the. defendant as drawer of a bill of' exchange, discounted by and belonging to the Royal Bank of Liverpool, of which the plaintiff was an officer. The complaint was as follows. Superior Court of the City of Rew York. John Myers, Public Registered Officer of the Royal Bank of Liverpool, „ against John A. Machado.

Demurrer to complaint. The complaint contained statements of two causes of action.

<p>Escape.—Reoaptube.</p> <p>The distinction between a voluntary and a negligent escape.</p> <p>That the prisoner was recaptured in another State by a sheriff of this State, after a negligent escape from his custody here, is not a ground for granting the prisoner’s application for a discharge.</p> <p>A violation by the sheriff of the directions of the statute, in respect to the mode of imprisonment, is not a ground of discharging the prisoner on motion.</p>

This action was brought by J. Nelson Luckey against Thomas Gannon, to recover for the conversion of two policies of insurance. The complaint alleged that in August, 1866, the plaintiff, procured two policies of insurance — one from the State Insurance Company of Jersey City, and the other from the Security Insurance Company of Philadelphia— upon property consisting of a rosin oil factory in Brooklyn, and the machinery and other property therein, each for the amount of $625.

Motion to set aside order of supplementary proceedings for the 'examination of the defendant. The plaintiffs 'in this action having recovered judgment, issued execution against the property of the defendant. This being returned unsatisfied, they obtained an order for the examination of the defendant under section 292 of the Code. The affidavit and order were in the usual form.

On an examination of the defendant before a referee, under .an order supplementary to execution, certain questions were put to him, and allowed by the referee, but which he declined answering. The plaintiff, on notice, applied to the court for an attachment •against the defendant for contempt in refusing to answer as directed by the referee.

Motion to set aside an order made by the sole referee, striking -out the name of a party defendant on the trial. The action was brought by one Amy Billings, a married woman, by her next friend, against Claudius Baker, Perry P. Billings, and others. The object of the action was a partition of real ^estate. The defendant Billings was the husband of the plaintiff. The action was referred, and on the trial, the plaintiff was offered as a witness in her own behalf.

This action was brought by Jean Toulandou against Augustus Lachenmeyer, to recover for money lent and advanced, and goods sold and delivered in the city of Hew Orleans, State of Louisiana, during the years 1858, 1859, and 1861. The defense was the statute of limitations of the State of Louisiana. On the trial, a witness for the defendant testified that he was a practicing lawyer in Hew Orleans, and acquainted with the laws of Louisiana.

This action was brought by Nicholas Van Brunt, the receiver of the rents, profits and income of the estate of ¡Ezra Lewis, deceased, against Gideon Pope, to recover the value of the use and occupation of a house and lot belonging to the estate. The facts were these : Ezra Lewis had in his lifetime rented to the defendant the house and lot in question, for the term of one year, ending May 1, 1865, at the annual rent of $550.

<p>Motion for discharge from imprisonmeu;</p>

The action was brought under sections 428 and 432 of the Code, to try the title to the office of street commissioner of the city of New York, then exercised by the defendant Conover and claimed by the relator Devlin. Upon the defendant’s demurrer to the complaint, a judgment of ouster against the defendant Conover, and a-judgment in favor of the right of the plaintiff Devlin, were rendered at general term, and these judgments, on appeal to the Court of Appeals, were affirmed.

<p>Recording Acts.—Assignment for Benefit of Creditors.</p> <p>An assignment for benefit of creditors, embracing real estate in the city of New York, filed in the office of the county clerk, according to the act of 1860, is not constructive notice of the conveyance of such real estate.</p> <p>The record of such an instrument should be made as of a conveyance, in the.register’s office to have such effect.</p> <p>The refusal of the purchaser to accept a sufficient deed of land, agreeable to the contract, duly tendered by the vendor,—Held, to exonerate the vendor, both from the obligation to convey, and the obligation to return the portion of the purchase money received on the contract.</p>

The complaint alleged that the defendants made a promissory note, payable to their own order, describing it, “ and thereupon indorsed and delivered the same to the plaintiffs.” After alleging non-payment, the plaintiffs further alleged that they were .the lawful owners and holders of the note.

Daniel D. Conover having been appointed by the governor to-fill a vacancy in the office of street commissioner in the 'city of Hew York, made application to Mr. Justice Peabody, one of the-justices of the Supreme Court for the first judicial district, for an-order pursuant to the, provisions of the Revised Statutes (1 Rev. Stats., 125, § 56), for the delivery of the books and papers of the office (Conover’s Case, 5 Ante, 73).

This action was Brought By S. Shuster Smith and others, respondents, against ABraham D. A. Miller and others, appellants.

Motion that complaint be made more definite and certain. The 'action was against the defendants as makers of several promissory notes, amounting in all to two hundred thousand .■dollars. The complaint alleged that on a day named the defendants were indebted to the plaintiffs in that sum, and to secure the payment of it they agreed to deliver, and did deliver, to the plaintiffs their promissory notes, describing them.

This action was brought to recover damages for injuries, causing the death of deceased on the occasion of what is known as the Norwalk disaster, in 1853. He was riding in a car of defendants, and was instantly killed. On the trial, a small verdict was obtained against the defendants. The plaintiff moved for a new trial, on the ground of the erroneous decisions and charge of the justice on the trial.

<p>Appeal from an order.</p>

<p>Constable.—Failube to eetuen Execution.</p> <p>It is no defence to an action against a constable for failure to return an execution and pay over money collected, that he delivered the execution to another constable to levy, and the other collected the money and offered to pay it to the plaintiff, less an extra compensation agreed to by the plaintiff at the time of issuing the execution.</p> <p>A constable to whom an execution is directed, has no power to delegate his authority to another. Whether, as between himself and the creditor in the execution, he might be justified in doing so by consent of the creditor—Query ?</p>

The action was brought on an undertaking given by the defendant Mudge, together with J. A. Martin, in proceedings of ■claim and delivery, taken by one Mathews, in an action for chattels, brought by him against one Descombes. The undertaking was for the prosecution of the action, and a return of the chattels taken in the proceedings, if a return should be adjudged,, and for payment to the defendant in that action of such sum as-might for any cause be recovered by him.

The action was against the defendants, part of whom, it was alleged, had organized, and the others, it was'alleged,- had united to carry on, a bubble company, stock in which the plaintiff had pm-chased of a third party, induced thereto by the public representations made by the defendants concerning the company, and by the statements of the certificates of stock issued, and by the fact that dividends had been declared.

This action was/brought 'by Jose Fraschieris against David M. Henriques and Thomas J. Ferris. The plaintiff alleged that Henriques, when on the verge of insolvency, by fraudulently concealing the fact from the plaintiff, and representing to him that he was prosperous in business, induced the plaintiff to consign to him segars tp the value of forty thousand dollars. The defendant Ferris claimed as a purchaser.

<p>Proceedings for opening Streets.*—Estoppel.</p> <p>The notice of application for the appointment of commissioners in proceedings to open Albany-street, in the city of New York, stated the proposed improvement to be the opening of Albany-street, from Broadway to Greenwich-street:— Held, a sufficient statement of the nature and extent of the improvement.</p> <p>The statute requiring an affidavit to show that the notice was posted in a conspicnous place, does not require the notice to specify the place. It is enough' to state that the notice was put up, and that the place was conspicuous.</p> <p>* In the matter of the Widening of Reade-street (Supreme Court, First District; Special Term, December, 1851), the motion of the corporation counsel for the confirmation of the commissioners’ report, was opposed by a number of counsel for various parties in interest. The grounds of objection were, that the proceedings were not regular in form in the following respects:</p> <p>That the abstract had not been deposited for sixty days in the street commissioner’s office, but only in the office of Mr. Devlin. [The title to the office of street commissioner was then in litigation between Mr. Devlin and Mr. Conover.]</p> <p>That the report was an amended report, and that twenty days’ notice Bad not been given of its presentation.</p> <p>That the commissioners had not given thirty days’ notice, that parties having objections to their abstract must send them in within that time.</p> <p>That they had misled parties by giving a notice that the’objections must be sent in within a time less than thirty days, and in refusing to receive objections within thirty days.</p> <p>The court decided to send back the report on the last two grounds of objection, and an order was entered—“ That the said motion to confirm the said report of the said commissioners be and the same is hereby denied ; and that the said report be and the same is hereby referred back to the said commissioners to be proceeded on according to law.”</p> <p>In the matter of the Widening of Duane-street (Supreme Court, First District; Special Term, April, 1858), on the motion to confirm the report of the commissioners, counsel for parties in interest opposed the confirmation, on the ground, among others, that the abstract had not been filed with the street commissioner, but with one Conover.</p> <p>The court held the objection untenable, saying that if it was shown that the abstract was filed in the office of the street commissioner, the requirements of the statute were carried out.</p> <p>On the application for the appointment of commissioners, the power of the court is confined to two duties: to ascertain that the commissioners are proper and suitable persons, and to ascertain the regularity of the proceedings.</p> <p>A distinction is to be observed between the legislative powers of a municipal corporation and the exercise of their rights over property belonging to them; and no act done by them in regard to their property, can be set up as an estoppel to restrain them from acting in matters which require legislation for the interests of the city. •</p> <p>The Common Council of the city of Hew York in 1861 passed resolutions for the opening of a street, which they amended by resolution in 1853, and under them proceedings were commenced, when in 1855 they passed a resolution directing all further proceedings to be stayed, and thereupon the counsel to the corporation entered an order that all further proceedings be discontinued; and in 1857, by resolution, they repealed the resolution of 1855 :—Held, that the resolution of 1851 as amended in 1853, was revived, and that it was the duty of the counsel to the corporation to proceed again under it.</p> <p>It is a sufficient objection to naming a person as commissioner in such proceedings, that he has expressed opinions on a question arising in the case that, if carried out, would defeat the application.</p>

This action was for assault and battery. The answer was a. denial. There were eleven other actions pending against the same defendant, brought by different parties, but all involving-the same facts. This cause being at'issue, the plaintiff obtained an order, under section 391 of the Code, requiring the- . defendant to attend, before one of the justices of the court, and ' be examined before trial.

This action was brought to recover the possession of a quantity of wheat. The wheat was shipped by plaintiffs from Buffalo to New York upon a canal-boat. The agents of the plaintiffs in the latter city agreed to sell the wheat, for cash on delivery, to Meyer & Ree, who were engaged in purchasing wheat, and shipping it to England. The latter agreed with the owners of the Great Western to ship the wheat to England on that vessel.

This action was brought in the superior court of New York by Stephen Philbin and Joseph P. Quin against Richard Patrick, to recover for labor and materials in the plumbing work in a house of the defendant. Upon the trial before Charles Peabody, Esq., referee, Mr. Knight, the bookkeeper of the plaintiffs, was called and sworn as a witness.

On the 2d day of April, 1857, two justices of the peace, of the county of Cortland, made an order of filiation against one Rummer, charged with being the father of a bastard child then lately born. Rummer appealed from the order to the Court of Sessions of Cortland county, and the case was tried on the 4th Monday in May, 1857.

<p>Pleading.—Complaint on Married Woman’s Contract.</p> <p>In an action on a business contract made by a married woman, it is not necessary for the plaintiff to aver that she contracted on her own account with reference to her business, or that it relates to her separate estate.</p>

<p>Examination of Parties.—Requisite Notice.</p> <p>In an action in a justice’s court, the notice of the intended examination of a party, under section 399 of the Code, is in time, if it is served within the required number of days before the day on which the trial actually takes place, without reference to the time of the return of the process.</p> <p>It seems, that if the trial is had before the required number of days have elapsed, the party cannot be examined, although his notice was served at the commencement of the action.</p>

The action was against the defendant as maker of a promissory note. The answer set up as a defence, that the note was made by the defendant and given to the plaintiff in payment for goods sold by him to the defendant, with a warranty of their quality, and that the goods were not of the quality warranted; and the defendant claimed damages in the sum of five hundred dollars for the breach of the warranty. On this state of the pleadings the plaintiff brought the action to trial.

This action was brought by George W. Holtsinger against The National Corn Exchange Bank, to recover the amount of two drafts, one for $525.10, and the other for $930.59. They were in the same form. The following is the copy of one: “No. 549. Washington, D. C., Sept. 21,1866. “ Assistant Treasurer of the U. /SI, New TorJc: “Pay to George W. Holtsinger, or order, five hundred and twenty-five dollars and ten cents ($525.10). “Paid, Oct. 2, 1866. “J. W. Nioholls, “Add.

Order to show cause why proceedings should not be stayed. The petitioner applied for an order restraining the prosecution of an action which had been commenced against him as a ■receiver appointed by the court, and others, and based his application'upon two grounds: Firstly, that the action had been -commenced without leave of court; and, secondly, that the matters involved in the action so commenced, had already been passed upon by the court in other proceedings.

<p>This was an action for a divorce. The parties were married1 in New York, in October^ 1846; This action was brought by the wife to declare the marriage null, upon the ground of a subsisting prior marriage, contracted by the husband with one Jane* Alexander, in Ireland, in 1842.</p> <p>The questions .presented were, whether the prior marriage was-duly solemnized, and sufficiently proved.</p>

Order requiring the plaintiff to show cause why a temporary injunction should not be dissolved.* The action was brought against Flagg, the comptroller of the city of Yew York, Conover, and Devlin, who each claimed title to the office of street commissioner of the city, and against the subordinate officers appointed by them respectively,' to restrain the former from paying and the others from collecting or receiving salaries until the controversy as to the title to the office…

Motion to vacate an order of arrest. The action was brought by James R. Butts against D. Henry Burnett, to recover damages for an alleged conversion by defendant of securities belonging to the plaintiff.

Appeal by defendants from an order that the plaintiffs have judgment on account of the frivolousness of the answer.

<p>Foreclosure of mechanic’s lien.</p> <p>The facts appear sufficiently in the opinion.</p>

<p>Husband and Wife.—Action fob Necessabies.</p> <p>After marriage, whether it be lawful or not, as long as it exists, third persons who have dealt with the wife on the assumption that she was such, based upon the representation of the husband, can recover for necessaries furnished her, if the husband fail to provide them.</p> <p>It is no answer to such a demand that an action for divorce was pending at the time the necessaries were furnished, unless alimony had been allowed.</p>

<p>Motion to set aside judgment, and all proceedings in an action for divorce, on the ground of an irregular or fraudulent service of the summons, by which the action was commenced.</p> <p>The action was for a divorce a vinculo matrimonii. The venue was laid in Saratoga county, and the defendant not having appeared in the action, judgment for the plaintiff was entered, on the report of the referee, in January, 1857.</p> <p>The facts appearing by the motion papers were as follows:— The plaintiff was an attorney and counsellor at law, living and keeping his office in the city of blew York ; the defendant was his wife. The parties were married May 17,1852, and had lived and cohabited together, as man and wife, from the time of their marriage down to October 6, 1856. They had one child, a son, about four years old.</p> <p>On October 6, 1856, defendant, with the plaintiff’s consent, left the city of blew York, on board the steamship Illinois, to pay a visit to her mother, then living in Sacramento, California. The plaintiff accompanied her to the steamship, and spent the last hour before its departure in' apparently friendly and affectionate conversation with her on board. In that conversation the plaintiff expressed his gratification that a good 02>portunity had offered for her to visit her mother. When the order was given on board for “ all persons not bound to California to go ashore,” one of the witnesses saw the plaintiff, at the moment ■of .bidding her farewell, embrace and kiss his wife, and then hand her a package. This package was a small tin box, closed, covered with paper, and the paper sealed. At the time of handing this package to the defendant, the 2>lamtiff informed her that the box contained a present for her mother, and also a note for herself: he requested her to be careful of the present, and to deliver it safely to her mother. After the defendant had passed Sandy Hook, and was out at sea, her curiosity induced her to unseal and open the package which her husband had so ■delivered to her. Upon opening the tin box, she discovered therein a summons directed to herself, as defendant,' and in which her husband, was plaintiff, filled out in the handwriting of her husband, and signed by himself as his own attorney, con-tabling the usual notice to her that an action was thereby commenced in the Supreme Court; and that the complaint would be filed in the clerk’s office in Saratoga county; and that if she failed to put in an answer in twenty days, the plaintiff" would apply to the court for the relief demanded in the complaint. The box also contained a letter to her, informing her that the action was tó obtain a divorce, and that he, the plaintiff, had witnesses by whom he could prove the necessary facts. The box contained no 2iresent to her mother, nor any other thing but the summons and letter. Ho part of these statements was contradicted by the op2>osing papers of the plaintiff, except that the plaintiff denied “ kissing his wife” at the time of separation; :and both he and his clerk state that the defendant received the package from the hands of the clerk, and not directly from the hands of the plaintiff. But by another witness the defendant was corroborated in her statement as to the plaintiff’s delivering to her the box himself.' At the time of her opening the box, she was beyond the limits of the territory of this State; she then possessed no power to return. When she arrived at Aspinwall (the first place of the vessel’s stopping), she made an effort to return, but was then in a condition of body and mind that made her friends remonstrate with her against it. She could find no vessel that would return her to Hew York within the twenty days. She had not with her the necessary pecuniary-means to obtain her passage back. She had her tickets taken through to California; her baggage was checked through, and. could not be obtained for her there, and she could find no friend' or acquaintance that was returning to Hew York. She was per- ■ suaded by her friends to go forward. She went to California, and returned to New York about the middle of January, 1857.. She did not see her husband until the decree of divorce had been obtained. At their first interview he gave her a copy of it. From January to May the defendant remained in Flew York, negotiating with the plaintiff in relation to her condition, but principally in the attempt to see her child—during all which time, however, she was not permitted by him to see it. This-statement was not contradicted by him. She also alleged that the plaintiff threatened her, in case she should attempt to set-aside the decree, that he had witnesses at his control by whom he could blast her fame ; and that he made various other threats, of which she stood in fear. Also, that he made her two propositions : one was, if she would keep secret what had transpired about the decree, and would raise him $5000, he would give her the custody of her child; the other, that if she would raise for him $1500, he would get from the clerk of Saratoga county the record of the divorce, and thus obliterate all the evidence of its existence. The first of these propositions the plaintiff denied, the last one he did not.</p> <p>The defendant finally returned to California for aid, and obtained there the necessary corroborating affidavits for this motion. She made an unqualified denial of the charges set forth-in the complaint, and this denial was also corroborated.</p> <p>Various immaterial affidavits were also read on the motion; but the statement above contains all that necessarily relates to-the question to be decided.</p>

<p>Motion for judgment.</p> <p>This action was "brought "by James Speyers against Edward Lambert on a guaranty of rent.</p>

<p>MoTIOST TO DISCHARGE FROM ARREST.-BAIL.</p> <p>On a motion to vacate or modify a provisional remedy—e. g, to vacate an order of arrest or reduce the amount of bail—the question is, whether upon the whole case, as made by the affidavits on both sides, the court, if called upon to act'on the application as res nova, would grant the order.</p> <p>The defendant kept an account in the bank of the plaintiffs, and during a certain number of years drew out, to a very large amount, more than had been deposited by him; and on examining the ledger containing the account of the defendant with the bank, which was kept by a clerk, one B., it appeared that in the ledger the deposits of the defendant had been increased by false entries to the amount overdrawn by the defendant:—</p> <p>Held, that this was sufficient evidence of the defendant’s knowledge of and complicity in the fraudulent entries made by B.; and that further, the declarations of B., in relation to the fraud, as testified to by his wife, were evidence against the defendant.</p> <p>It is well settled that the facts which authorize an arrest need not be set forth in the complaint, except where they are facts constituting the cause of action.</p> <p>The fact that, subsequent to the granting of an order of arrest, the form of the summons in the action was amended, changing it from a summons for a money-demand to a summons for specific relief does not impair the effect of the order, nor afford ground for vacating the order.</p> <p>Where the defendant has been held to bail in a civil action, and his motion to reduce the bail has been denied by the justice who granted the order and fixed the amount, another justice, before whom a motion to vacate the order or reduce the bail is made, founded upon new affidavits, should not reduce the bail unless new facts are presented bearing on that question; and the fact that, since the denial of the first motion, the defendant has been held to bail in a much smaller amount in criminal proceedings on the same facts, is not a reason for a reduction in the civil action.</p>

This action was brought by the Boston Silk & Woolen Mills, plaintiffs and appellants, against Gfeorge Eull, survivor, &c., defendant and respondent.

Motion to consolidate several actions. The defendants were sued as editors and proprietors of the-Albany Evening Journal, a newspaper printed and published in the city and county of Albany. The plaintiff brought against them, in the Supreme Court, sixty-two separate actions, one in-each of the sixty-two counties of the State, for the'publication of an alleged libel in the.paper of the. defendants. The damages in each action were laid at twenty thousand dollars.

<p>Appeal from a judgment.</p> <p>. This action was brought by Samuel L. Graham, plaintiff and respondent, against Robert L. Maitland, survivor, &c., defendant and appellant.</p>

This action was brought by Walter J. Atcherson, plaintiff and respondent, against the Troy & Boston Railroad Company, defendants and appellants, in pursuance of the provisions of section 12 of the “ Act to authorize the formation of railroad corporations, and to regulate the same, passed April 2, 1850,” to recover for work, labor and service rendered the defendants’ contractors, by plaintiff and his two four-horse teams on the Troy & Boston Railroad, in the years 1850 and…

The action, was brought to recover on three causes of actiom The complaint alleged for a first cause of action, that the defendant had entered into a written contract with one Sleight, by which it was agreed, among other things, that the defendant should invest a large capital in the purchase of grain to be ground by Sleight, and should pay him therefor at a specified rate.

<p>Accommodation Paper.—Partnership.—Finding oe . Law.—Evidence.—Witness.—Several Judgment.</p> <p>Inasmuch as it is no part of the business of a mercantile firm to make or indorse notes, as a firm, for third persons, there is no implied authority for one member to indorse or affix the name of the firm to negotiable paper, in which the partnership have no interest; and one who takes such paper, so indorsed, with notice that the indorsement was made for the accommodation of the one partner who made it, cannot hold the other partners liable upon it.</p> <p>A finding of a referee of the fact of notice that certain indorsements were accommodation indorsements, if based on the possession of the notes by the maker, and his delivery of them with such indorsements for his own benefit, may be regarded as a conclusion of law, and is therefore open to examination in the court of appeals.</p> <p>The fact that the maker of a note holds and puts it into circulation for his own advantage, is notice to the party taking it that whatever indorsements may be upon it were made for his benefit, and not in the course of business.</p> <p>In an action against partners a separate judgment may be entered against those who are found liable, while the plaintiff is nonsuited as to those who are not liable.</p> <p>In an action at law, after the plaintiffs have closed their case, it is discretionary with the referees whether to allow them to open it and introduce evidence, not rebutting, but competent and proper, in the first instance, to make out their case; and their decision on this point is not subject to review on appeal.</p> <p>An objection to the competency of a witness whose deposition is offered in evidence, is to be determined by the law as it stands at the time of the trial, not by the law as it was when the deposition was taken.</p>

The action was brought to recover from the defendant the statute penalty of $50 for a violation of section 21 of the Metropolitan Police Law (2 Laws of 185T, 200, oh. 569, § 21). The complaint was in the form authorized by the Revised Statutes (2 Hev. Stats., 482, § 10),* and the summons contained the notice prescribed by subdivision 1 of section 129 of the Code, that if ■the defendant failed to answer, the plaintiff would take judgment against him for the sum specified.

. « The action was for partition. Judgment, ordering the property to be sold under the direction of a referee appointed in the cause, was obtained on the 5th of May, 1857. The property consisted of three parcels. One was purchased at the sale by the appellants for $61,250.

This action was brought by Charles P. Currie and others, plaintiffs and appellants, against Cumberland Gr. White, defendant and respondent. Upon the issues of fact joined therein, it was tried before the Hon. Samuel-Jones, Justice, at special term, without a jury.

This was a creditor’s action brought against Waterman, who-was the judgment debtor, J. and G. Hecker, who were his prior judgment creditors and assignees^ and one Rowell, who had purchased property of the debtor at a sale made by the assignees. On the 25th of August, 1851, Waterman confessed a judgment to the Heckers in the following words:— Supreme Court, City and County op Hew York.

In this action, which was brought against several defendants, the plaintiff obtained an attachment, under section 227 of the Code, against the property of the defendant Jason H. Bock-over, upon the ground that he was a non-resident.

<p>Form of Summons.-—-Amendment in Justices’ Courts.</p> <p>The Marine Court of the city of New York, and Justices’ Courts, have power, in actions where the defendant appears, to allow the plaintiff to amend his summons on the return day, changing the character of the action from one on contract to one for a tort.</p>

The defendant, who was a sheriff of the county of Kings, was sued in this action for acts done by him in his official capacity. He succeeded in his defence, and recovered judgment against the plaintiff for costs, in adjusting which the clerk allowed double costs, as under the Revised Statutes. The plaintiff now moved for a readjustment.

September, 1857. Order to show cause why the report of the referee, in proceedings to close up an insolvent bank, apportioning its debts among its stockholders, should not be confirmed. The Empire City Bank was organized under the general banking law, in January, 1852, and located in the city of JSTew Tork.

This action was brought by Patrick O’Beirne against James T. Lloyd, to recover for services in making a map under a contract between the parties. It appeared that in October, 1865, the defendant employed plaintiff, under a written contract, to make certain maps in sections, for each of which sections plaintiff was to receive $400.

This was an.action brought by Alfred Lee, as assignee of one Shannon, against Simon Decker, to recover the sum of $800 upon the following contract: “April 1, 1859. “Settled all account up to this date, and found due S. Decker six hundred dollars on the purchase of a house and lot, this day deeded to Hiram Decker for $1,400, leaving due to H. Shannon eight hundred dollars from S. Decker ; the said Decker to sell and have the full proceeds of said house and lot, and any…

This action was brought by William M. and Robert J. Lowry against William H. Inman, to charge the defendant with liability for bills of a bank in Georgia, of which he was a stockholder. I. Demurrer to complaint.

Demurrer to answer. This action was brought by Charles I. and Francis B. Baldwin against The United States Telegraph Company. The defendants are a corporation, duly incorporated under the act of April 13, 1848, and the act of June 39, 1853, and the various acts amending the same, whose general business is to receive and transmit messages over certain lines of wire through the State of Hew York, and other States.

This was a proceeding taken by Richard D. Brinckerhoff, plaintiff and appellant, against the Board of Education for the city and county of New York, and the school officers of the nineteenth ward, impleaded with the Mayor, &c., and others. The action was brought to foreclose a lien which plaintiff alleged he had acquired upon a public school house of the city, by filing a notice for materials, under the mechanics’ lien law relative to the city of New York.

This action was brought by August Belmont against the Erie Railway Company, and the directors thereof, to obtain the appointment of a receiver of the corporation defendant, upon allegations of mismanagement on the part of the directors. The order for appointment of a receiver having been granted, the defendants appealed therefrom, and also applied to another judge of the court to reopen and discharge the order. The decision of that application is reported in 52 Barb., 637.

This action was brought by Hiram Slocum against Pliny and Adam M. Freeman, to compel a cancelation of a satisfaction of a judgment recovered by this plaintiff against these defendants. The facts found by the referee, before whom the action was tried, are these: 1.

Motion to set aside judgment and proceedings thereon. The plaintiff commenced this action to enforce the specific performance of an agreement, for the sale of a quarry, and obtained an injunction, giving the usual bond, in which, however, he did not join as an obligor. •During the pendency of a motion to vacate an injunction, the plaintiff obtained leave to discontinue on payment of costs, and without prejudice to the defendant’s rights on the undertaking.

Appeals from judgment on a verdict, and from an order denying the defendants’ motion for a new trial on the judge’s minutes, and from an order at special term, denying defendants’ motion for a new trial, on the grounds of surprise and newly discovered evidence. This action was brought by Robert P. Dodge and George F. McClellan, assignees, &c., respondents, against The New York and Washington Steamship Company, appellants. The facts are stated in the opinion of the court.

This action was brought by William C. Rogers against Mary Marshall and others, to recover certain premises in the city of Hew York, which in 1855 belonged to Lewis C. Rogers, the father of the plaintiff. They were then heavily incumbered to nearly if not quite the amount of their value, and their owner was insolvent.

This action was brought by James F. Trufant against John E. Merrill and another, to obtain a dissolution of the copartnership of the plaintiff and defendants, and a distribution of the partnership assets.