Volume 6 — Daly's New York Common Pleas Reports

<p>"Where the mechanic’s lien law gives a lien upon the building and “ upon the lot upon which the same shall stand" and the building is blown down before the filing of the notice which creates the lien: Held, that no lien is acquired by filing the notice; that if there is no building remaining, there can be no lien.</p>

<p>Appeal by defendants from a judgment of this court, entered on the report of William Bloomfield, as referee, in a proceeding to enforce a mechanic’s lien.</p> <p>The facts are stated in the opinion.</p>

<p>A child of the age of five years and three months, and which had never been known to go into the street alone, after having been playing in the yard all day with other children, came into the house for a drink of milk, which its mother gave it and placed at the table to drink it, and went into an adjoining room to change her dress, and in a few moments, without her knowledge, the child left the room and went into the street, and was run over by the defendant’s car: Meld, that whether there was negligence in the mother which could be imputed to the child, was a question properly submitted to the jury.</p>

Appeal by plaintiff from a judgment in this court entered on the decision of Robinson, J., ordering judgment for the defendants after a trial had before him without a jury. The action was brought against the defendants to recover from them personally the amount of a debt due to the plaintiff from the American Hand Pegging Machine Company, on account of the failure of the company to make and file the annual reports required by the statute.

<p>Appeal from an order of this court made at special term by Joseph F. Daly, J., directing a writ of peremptory mandamus to issue, directed to Thomas B. Asten and others, as and composing the board of assessors of the city of New York, commanding them forthwith to meet as a board of assessors, and to estimate the damage done to the relator and his property, by reason of the closing of the Bloomingdale road in the city of Mew York, and also commanding them to apportion and assess for benefit upon such premises or lands as were or might have been benefited by the closing of said Bloomingdale road, the sum or sums allowed and estimated to the relator as damage.</p> <p>The affidavits of the relator on which the mandamus was granted, showed that he was the owner in fee of land on the southeast corner of the Bloomingdale road (then closed) and Manhattan street, in the city of Mew York, and that the Bloomingdale road had been laid out as a road or public highway, pursuant to an act in relation to the laying out of public highways in the county of Mew York, passed June 19th, A. D. 1703, and and that it was continued and kept as a public highway and road of the city of Mew York, up to and including the year 1867.</p> <p>That by certain proceedings taken by the Board of Commissioners of Central Park, under the provisions of L. 1867, c. 697 (passed April 24th, 1867), the portion of Bloomingdale road in front of deponent’s land, and between Manhattan street and 120th street was closed.</p> <p>This act of 1867, provided, among other things, in its third section:</p> <p>“ * * * All damage to any land, or to any building or structure thereon existing at the time of the passage of this act, or on any street, avenue or road laid out on the map of the city of Mew York, within the district specified in the first section of this act, by reason of closing such street or altering the grade thereof, shall be ascertained and paid in the manner specified in sections three and four of an act entitled ‘ An act to make permanent the grades of the streets and avenues of the city of Mew York, passed March 4,1852.’ ”</p> <p>The sections of the act of 1852, referred to read as follows :</p> <p>“ § 3. In all cases where the grade of any street or avenue now established south of Sixty-third street, or which shall hereafter be established north of said Sixty-second street, shall be changed or altered in whole or in part, it shall be the duty of the assessors appointed to estimate and assess the expense of conforming to such change of grade, and regulating the street or avenue in accordance therewith, to estimate the loss and damage which each owner of land fronting on such street or avenue will sustain by reason of such change to such lands, or to any improvements thereon, and make a just and equitable award of the amount of such loss or damage to the owner Grown ers of such lands or tenements fronting on such street or avenue and opposite thereto, and affected by such change of grade, and the amount of such award shall be included in the expense of such proceeding, and with such expenses shall be assessed, as provided in and by the one hundred and seventy-fifth section of the act of April ninth, 1813, entitled ‘An act to-reduce several laws relating particularly to .the city of New York, into one act.’ ”</p> <p>“ § 4. The mayor, aldermen and commonalty of the city of New York, shall, within four months after the ratification of the assessment of the assessors, pay to the respective parties entitled thereunto, the amount of such awards in their favor respectively ; and in case of their neglect or default to pay the same after demand made therefor, it shall be lawful for the person or persons entitled to the same to sue for and recover the the amount of said awards, etc. * * * ”</p> <p>The appellants were a board of assessors organized under L. 1859, c. 302, by § 15 of which their duties were defined as follows : To make “ estimates and assessments, as required by law, for building walls and erecting pumps; pitching, paving,, regulating and repairing streets; constructing sewers; fencing vacant lots and public slips; and all other improvements directed by corporation ordinance, for which an assessment is to be made.”</p> <p>No affidavits were presented on the part of the appellants here, and a peremptory mandamus was granted as above stated.</p>

Appeal by defendant from a judgment of a District Court. The action was brought against the defendant to recover from him the value of a ring which the plaintiff alleged he had converted to his own use. It appeared in evidence that the plaintiff had given the ring to her son Charles Gilbert, to pawn it to raise money for his own use, and that he had taken it to the defendant.and pawned it in his own name.

Appeal by the defendant from a judgment for $102 76, besides costs and extra costs, rendered in favor of the plaintiff by the Second District Court of the city of Hew York.

<p>Appeal from judgment of the Third District Court, dismissing complaint.</p>

Appeal by defendant from a judgment of the general term of the Marine Gourt affirming a judgment of that court, entered on the verdict of a jury. The action was brought to recover for the services and materials furnished by the plaintiff in painting a picture of the defendant.

Appeal by plaintiff from a judgment of the general term of the Marine Court affirming a judgment of that court oh a trial before a judge of that court without a jury, dismissing the complaint.

, allowing to Nathaniel Jarvis, Jr., the committee of the estate of Bomanjee Byramjee Colah, a lunatic, the sum of $5,000 as a fair and reasonable compensation to him for his services as such committee from the time of his appointment (July 20th, 1870) up to October 31st, 1874.

Appeal -by defendant from an order of this court made at a special term thereof, by Hon. Hamilton W. Robinson, substituting as plaintiff in the action, in the place of Andrew McGuire, Thomas McGuire, as executor of the last will and testament of Andrew McGuire, and continuing the action in the name of such executor without prejudice to the proceedings already had in the action. The facts are stated in the opinion.

<p>The plaintiff, being publisher of a newspaper printed in the German language, under directions from the proper officers of the defendant (the Corporation of Hew Yoi'k city), but without any contract as to the price to be paid therefor, published in Ms newspaper certain advertisements, the matter for which was sent to Mm by the defendant’s officers, in slips printed in .the English language, and in type of a larger size than that ordinarily used in the plaintiff’s paper. The,plaintiff, in endeavoring to imitate, in German text, the size of the English type in which the slips were printed, caused the advertisements to occupy a larger space in his newspaper than they would have occupied if printed in the ordinary type used in the newspaper.</p> <p>Held, That the plaintiff was entitled to be paid, not for the space that the advertisements actually occupied in his paper, but only for the space that they would have occupied if they had been printed in the ordinary type of the paper.</p> <p>JSeld, also, that the plaintiff was entitled to be paid for the space that would have been so occupied at the rates ordinarily charged by him for advertising space in his paper.</p> <p>"Where, on appeal from a judgment, the appellant’s counsel in bis points takes no notice of the exceptions taken on the trial, the court may refuse to consider them.</p>

Appeal by defendants from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court entered on the decision of Judge Spaulding of that court, after a trial before him without a jury.

Appeal by a surety on a bond given in the course of the action from an order of this court, made at special term by Judge Loew. The action was brought for the dissolution of a partnership and an accounting and settlement in regard thereto.

Appeal by plaintiffs from an order of this court made at special term by Judge Labrémose, dissolving a preliminary injunction that had been granted in the action by Judge Loew.

Appeal by defendant from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court in favor of the plaintiff and against the defendants, for §284 54, entered on the decision of a judge of that court, rendered after a trial before him without a jury.

Appeal by defendant from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court against the defendant for $249 76, entered on the report of a referee. The action was brought on a note for $160, payable sixty days from date, made by Anna L. Baxter to the order of the •defendant Erastus Cooke, and indorsed by him.

Appeal by defendant from a judgment of this court entered on the verdict of a jury after a trial before Judge Larremore, and also from an order denying a motion for a new trial. The action was brought to recover from the defendant the amount of a premium on a fire insurance policy issued by the plaintiff to the defendant.

<p>Appeal from order of this court, made at special term by Judge Kobinson, requiring John H. Cornell, an attorney of the court, to pay over to the petitioner the sum of $1,445 45, and also to pay $238 20 costs and disbursements of the proceeding, with interest, within twenty days from the service of the order.</p> <p>By the petition, to which Mr. Cornell made no answer by affidavit or otherwise, it appears that the petitioner employed "him as her attorney, to appear for her in an action for the partition of real property in which she had an interest; that Cornell, as her attorney, received from the referee in the partition suit, after sale, $1,569 08 as the petitioner’s share in the proceeds, and $1,096 costs and allowance, on the 28th and 19th days of July, 1873, respectively; that petitioner applied to Cornell repeatedly, from August 1st to August 25th, 1873, to know whether he had received any money from the sale of the premises in partition, and was informed by him that he had not; that petitioner learned from the referee on August 27th, 1873, of the payments to Cornell, and on the 30th day of August, 1873, went to Cornell’s office, saw his clerk, Mr. Baab (Cornell being absent), and was informed by the clerk that Mr. Cornell was very much astonished to find that she expected to receive any of the purchase money of the said premises; that she should not expect one penny; that she must be satisfied if Mr. Cornell did not charge her more; that, for the last three years, Mr. Cornell had not received any money from her; and that said Cornell had requested him (the clerk) to say so to petitioner; that, for four years past or more, Cornell had been the legal adviser of petitioner and her husband, and had acted as attorney and counsel for her husband and herself, and had been paid, since August 2d, 1869, for such services, at least $1,485 60 in cash, and that petitioner had never agreed with Cornell that any part of the proceeds of the sale in partition should be applied in payment for services rendered by him, or should be disposed of in any other way than by payment of the whole amount to> the petitioner.</p> <p>On this petition Chief Justice Daly made an order requiring Cornel] to show cause, at a special term on a day and horn-named, why the prayer of the petition (that Cornell pay over to her, or to her attorneys, the said sum of $1,569 08, with interest, and the costs of the proceedings) should not be granted, and why the petitioner should not have such other and further relief as might be just in the premises.</p> <p>On the return day of the order to show cause Cornell appeared, and an order was made by the court (Chief Justice Daly) (Cornell opposing), referring it to William Mitchell as referee, to ascertain and report the truth of the allegations of the petition, and to ascertain and report the amount of moneys belonging to the petitioner then in the hands of said Cornell, and the time of receiving the same, and to ascertain and report whether the said Cornell had any lien upon said moneys in his favor, and, if any, the extent and nature of such lien.</p> <p>The referee reported, among other things, that Cornell had received the sums at the dates set forth in the petition, viz.: $1,569 08, the share of the petitioner in the sale in partition, and $1,000 allowed to the petitioner and her husband, and $96, the taxable costs; that the petitioner had called on him for the amount coming to her, and he had “ refrained from telling her he had received the money, and some time afterwards he claimed that he was entitled to the whole for services rendered by him that the referee had taken evidence as to what services were rendered by Cornell to the petitioner, and what they were worth; that the services in the partition suit were worth §600,. besides the adjusted costs, $96, and his services in all other-matters, over and above payments made by the petitioner to him, were worth $618 10, making in all $1,314 10; and that he-had a lien to that amount on the $2,665 08 received by him in. the partition suit, and that the difference, or $1,350 98, with interest from September 1, 1873, was due from him to the? petitioner.</p> <p>Thereupon, by order made at special term, the court ordered that the said Cornell pay over to petitioner $1,455 45, the amount so reported due, and interest, and also $238 20, the costs and disbursements of these proceedings, being together $1,693 65, with interest from the date of the order. The said Cornell having filed exceptions to the referee’s report, they were argued, and the report confirmed in and by the said order.</p> <p>The parties stipulated that upon this appeal no question should be raised, except as to the power of the court to make-the order of reference; that no question should be raised that, the evidence before the referee did not support the allegations, of the petition; that it is conceded that the order of reference was duly served on Cornell, and that he did not appeal therefrom ; that he appeared before the referee, and did not object to the validity of the order or to the jurisdiction of the referee; that he brought in before the referee an account in his favor against the petitioner of about fifty distinct items, which account was examined by the referee at the request of Cornell, who offered it as a counter-claim to the claim of the plaintiff.</p>

<p>Appeal by plaintiffs from a judgment of the general term of the Marine Court of the city of Mew York, affirming a judgment of that court entered on the verdict of a jury rendered by ■direction of a judge of that court at trial term.</p> <p>The plaintiffs were attorneys at law and of counsel for the Bowery Savings Bank. The defendant applied to that bank for a loan upon certain real estate, which the bank consented to make in case his title proved satisfactory, and referred the defendant to plaintiffs, as its attorneys, to examine the title of the premises upon which the loan was to be made. The defendant ■called upon and left with the plaintiffs his abstract and muniments of title, for an examination thereof.</p> <p>After such examination, the plaintiffs declined to pass the-title to said premises, on account of an alleged defect therein, and said loan was never made.</p> <p>Plaintiffs then brought suit to recover their fees for the examination of said title, and the necessary disbursements incurred therein.</p>

Appeal by defendant from a judgment of the general term of the Marine Court of the city of Mew York, affirming a judgment of that court entered on the verdict of a jury. The facts are fully stated in the opinion.

<p>Where, after a recognizance to the People of the State for the appearance of a prisoner to stand his trial had been forfeited, the prisoner was arrested on a bench warrant and entered into another recognizance with the same surety, and when he was brought up for trial, the complainant, in open court, abandoned the prosecution, and by the consent of the district attorney the prisoner was discharged, and it did not appear that the prosecution was prejudiced by the delay caused by the prisoner’s default: Held, that it was a proper case to vacate the judgment entered on the forfeited recognizance.</p>

Appeal by the plaintiff from a judgment of this court dismissing the complaint, entered on the report of Hon. Enoch L. Rancher, as referee, to hear and determine all the issues. The facts of the case yre fully stated in the opinion of the referee on making his decision, which was as follows: “ The plaintiff is, by profession, a chemist. He brought this action to recover of the defendants for the services mentioned in the following items : 1.

<p>The plaintiff delivered to his broker a certificate of stock, with a blank power of attorney to transfer it indorsed thereon, and directed his broker to procure a loan of money for him thereon. His broker, instead of so doing, through the aid and assistance of the defendants (who were also brokers, and who acted in good faith and without knowledge of who was the owner of the stock, or what the plaintiff’s instructions to his broker had been), sold it to a purchaser in good faith. Held, that the defendants were not liable for a conversion of the stock, and stood being equally innocent in the same position as the purchaser from them in good faith.</p>

In his decision the judge found the following as matters of fact: “1. That in November, 1867, the defendant Mary Carey commenced her action for limited divorce in this court, against her husband, Thomas W. Carey, one of the defendants in this suit, and the defendant John Townshend appeared and acted as attorney for the said defendant Thomas W. Carey during the whole of the various proceedings therein, and had full knowledge thereof. “ 2.

Appeal by the defendant Jacob H. Mott from a judgment ■of this court, entered on the decision of Chief Justice Chables P. Daly, after a trial before him at special term. This action was brought on the equity side of the court, to restrain, by perpetual injunction, the sale of a house and lot in Twelfth street, in this city, under an execution upon a judgment recovered in this court.

Appeal by the defendant from a judgment of this court, entered on the decision of Judge Labbemoee, after a trial before him without a jury. The facts are stated in the opinion.

<p>Appeal by defendant from a judgment of the Marine Court of the city of New York.</p> <p>The facts are stated in the opinion.</p>

Appeal by defendant from a judgment of this court for $1,101 99, entered on the report of George M. Van Hoesen, Esq., appointed referee to hear and determine the issue. The action was brought to recover from the defendant, for goods sold and delivered to her, of the value of $618 52.

Appeal by the plaintiff from a judgment of this court, entered on the decision of Judge Larremore, after a trial before him without a jury. The facts are stated in the opinion.

Appeal by defendant from a judgment of this court against him for $574, besides costs, entered on the report .of Thomas W. Olerke, Esq. appointed a referee to hear and determine the issues. The action was brought to recover auctioneer’s fees for selling twenty-one (21) parcels of land which the plaintiff alleged the defendant had purchased at a sale held by him, and at the rate of $25 for each parcel.

<p>Appeal by defendant from a judgment of general term of Marine Court of the city of Hew York, affirming a judgment of that court entered on the verdict of a jury. The facts are dully stated in the opinion.</p>

Appeal by plaintiffs from an order of this court made at special term by Chief Justice Chables P. Daly, denying a motion to set aside a verdict, and direct a new trial, in an action tried before him with a jury. The action was brought by the plaintiffs against the defendant, to recover an alleged balance of deposit amounting to $14,830, due to the plaintiffs on their account with the defendant.

Appeal by defendant from, a judgment of the Marine Court of the city of Hew York, affirming a judgment of that court entered on a decision of a judge of that court, after a trial before him without a jury. The action was brought against the defendant to recover damages for neglect in failing to send a message intrusted to it for transmission by the plaintiff. The facts are fully stated in the opinion.

Daly, denying a motion to vacate an order of arrest in the action, which had been granted by Judge Larremore. The affidavits on which the order was granted, showed that the defendant had been, prior to October 15th, 1874, the agent of the firm of John F. Seymour & Co., for the purpose of making collections of debts due the firm.

<p>In an action brought in the Superior Court of the city of Hew York, to recover §10,000 damages for an alleged assault and battery, on consent of the parties after issue joined, the cause was transferred, under L. 18Y2, ch. 629, § 3, subd. 12, to the Marine Court of the city of Hew York, to hear and determine all the issues thereof, and the parties, without objection, appeared in that court, and went to trial, when the plaintiff had a verdict for $6,000: Held (following Heath v. Hubbell, ante, p. 183), that the Marine Court had jurisdiction.</p> <p>An order made by the general term of the Marine Court of the city of Hew York, striking an action and all proceedings therein from the records of that court, is an “actual determination” of such general term, within L. IS1?!, ch. 846, § 9, and is appealable to this court.</p>

Appeal by plaintiff from a judgment of the Marine Court, of the city of New York entered on an order made by the General Term of that court, affirming a judgment entered on an order made at trial term dismissing the complaint.

Appeal by defendant from a judgment of the Marine Court of the city of New York, entered on an order of the general term of that court, affirming a judgment of that court entered on the verdict of a jury.

<p>Appeal by defendant from a judgment of this court, entered on the report of Franklin A. Paddock, Esq., appointed-sole referee to hear and determine the issues.</p> <p>The action was brought by the plaintiff as receiver of the-Ocean National Bank, on a bond made by the defendant in form as follows:</p> <p>“ Whereas W. F. Gleason has opened an account in the Ocean National Bank, and will offer notes and acceptances-there for discount;</p> <p>“Now, then, I, the undersigned Charles W. Copeland, am held and firmly bound unto said Ocean National Bank in the sum of two thousand dollars, in money of the United States, to-be to them, their successors and assigns, well and truly paid, for which payment, well and truly to be made, I bind myself, my heirs, executors, administrators and assigns, firmly, by these presents.</p> <p>“ Sealed with my seal, and dated the 15th day of December, 1870.</p> <p>“ The condition of the above obligation is such, that if the said W. F. Gleason shall well' and truly take up and pay, within five days after maturity thereof, any paper discounted for his account in said bank, together with interest and costs of protest and expenses thereon, and shall, within the same time, make good any and all checks certified for or paid by said bank for him, and shall save said bank harmless from all damage by reason of his having an account therein, this bond shall be void; otherwise, in full force and virtue. This bond to be binding for one year only from date.</p> <p>“ (Signed.) “ Chas. W. Copeland, [l, s.]</p> <p>The breaches of the bond alleged were (1) the failure of ~W. F. Gleason to take up and pay a bill of exchange, dated September 10th, 1871, payable five months after date, and which had, before December 15th, 1871, been discounted for W. F. Gleason by the Ocean FTational Bank, and on December 26th, 1871, had been protested for non-acceptance; and, (2) the failure of W. F. Gleason to take up and pay a note dated October 14th, 1871, payable three months after date, and which, before December 15th, 1871, had been discounted for him by the Ocean FTational Bank, and which, on January 17th, 1872 (the ■day on which it fell due), had been protested for non-payment -and was still unpaid.</p> <p>The defense was that as the protest of the draft and note had not occurred until after December 15th, 1871, the failure •of Gleason to take them up and pay them did not constitute a breach of the bond within the year for which it was limited. Other defenses were also set up, including a defense of usury, a statement of which is not material to an understanding of the ■decision on this appeal. The referee found that the defendant was liable on the bond for all paper discounted by The Ocean FTational’ Bank of the City of FTew York, for W. F. Gleason, between the 15th day of December, 1870, and the 15th day of December, 1871, including such paper so discounted as matured .after December 15, 1871, which the said Gleason did not take up and pay within five days after maturity; but that such liability was limited to $2,000.</p>

Appeal by the plaintiff, from a judgment of the District Court for the Third Judicial District, in the city of New York, in favor of the defendant, for costs and extra costs. The facts are stated in the opinion.

<p>In an action against a corporation, for acts done by one of its servants, an admission made by the president of the company, after the happening of the act, that before the occurrence, the officers of the corporation had knowledge of the character of the servant whose act was complained of, cannot be introduced in evidence against the corporation, and if admitted may be disregarded.</p>

<p>Appeal from judgment of Third District Court in favor of defendant. The facts are stated in the opinion.</p>

<p>■One who takes from his debtor, as collateral security for the debt, the promissory note of a third person for an amount greater than the debt, has power only to collect it and apply the proceeds toward the payment of the debt for which it is pledged as security, and if, without the consent of his debtor, he renews or extends it, or compromises with the persons liable on it, or surrenders it up to them and takes new security, he must account to his debtor in the same way as if he had collected it in full, for the difference between the face of the note and the debt.</p>

Appeal by defendant from a, judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court entered on the decision of a judge of that court, after a trial before him without a jury. The facts are fully stated in the opinion.

<p>Appeal from a judgment in a proceeding to foreclose a mechanic’s lien entered on the report of Hon. Joseph S. Bosworth, appointed sole referee to hear and determine the issues. The facts are fully stated in the opinion.</p>

Appeal by plaintiff from an order of this court, made at special term by Judge Labbemobe, allowing the defendants to serve a supplemental answer, setting up a settlement and satisfaction of the claim sued on, made after the commencement of the action. The facts are stated in the opinion.

Appeal by defendant from a judgment of this court entered on the verdict of a jury, after a trial before Judge LakremoreJ The facts are fully stated in the opinion.

<p>Appeal by defendant from a judgment of this court, entered on the decision of Judge Bobdísoit, after a trial before him without a jury.</p> <p>This action was brought by the plaintiff against the defendant to recover the damages which had been suffered by the plaintiff, by reason of the breach of a covenant of warranty -contained in an agreement entered into by the defendant with the plaintiff, for the sale and delivery by the defendant to the plaintiff of a steamer known as the “ George Leary.”</p> <p>The facts as found by the judge at the trial were as follows:</p> <p>The plaintiff, the Baltimore Steam Packet Company, was and is a Maryland corporation, engaged in the business of transporting freight and passengers between Baltimore, Maryland, and Norfolk, Virginia, transacting its business and having its property situated partly in Maryland and partly in Virginia.</p> <p>In August, 1866, the Baltimore Steam Packet Company was known as “ the old line of steamers.” There was at that time another line of steamers plying on Chesapeake Bay, of which H. V. Tompkins was the general agent at Norfolk, known as '“the new line of steamers,” to which the steamer George Leary belonged.</p> <p>By the terms of a certain agreement entered into on the 10th day of August, 1866, between the defendant, Mr. Garrison, and the plaintiff, the Baltimore Steam Packet Company, "through Mr. Bobinson, one of its directors, subject to ratification by the plaintiff, the defendant, in consideration of the sum •of $240,000, to be paid him as in the manner provided in the agreement, “ agrees to sell and deliver to the said Baltimore ■Steam Packet Company all and singular the steamer called the George Leary, now plying on Chesapeake Bay, between Baltimore and Norfolk, together with and including all the masts, &e., * * * now on board of or annexed to the said George Leary, or thereto appertaining and belonging, the said George Leary to be free and clear of all liens and incumbrances of every kind and nature whatever, and to be delivered to the said Baltimore Steam Packet Company, at its wharves in the city of Baltimore, within fifteen days after the ratification of this agreement by the Baltimore Steam Packet Company.”</p> <p>This agreement was ratified August 13, 1866.</p> <p>On the 15th August, 1866, the plaintiff paid the defendant $60,000 in cash, and for the residue of the purchase money gave its promissory notes, which were all afterwards paid afc maturity.</p> <p>At the same time the defendant delivered to the plaintiff' certain bills of sale of part interests in the steamer, executed by former part owners, previous to her becoming the property of' the defendant Garrison, with the name of the transferee in blank. No other bill of sale was delivered by the defendant to-the- plaintiff. On the 15th August, 1866, the George Leary was at Norfolk, Virginia, in the possession and under the control of the defendant, and remained under his control (except in so far as she was under the control of the sergeant of that city under the attachments hereinafter mentioned), until the 9th September, 1866, when the defendant brought her from Norfolk. to Baltimore, and there delivered her to the plaintiff at its. wharves. The plaintiff thereupon obtained possession of the-steamer, and employed her in its daily business of transportation between Baltimore and Norfolk, and in .the course of such employment its title was attacked by the Norfolk & Peters-burg R. R. Co., under an alleged lien by attachment obtained upon the vessel at Norfolk, Virginia, prior to her delivery to-the plaintiff, and while she was the property of, and in the control and possession of the defendant Garrison. The facts, with respect to the levy of the attachment were as follows : In August, 1866, before the delivery of the steamer, and while she was at Norfolk, in the possession of the defendant, two attachments were levied upon her at the suit of the Norfolk & Petersburg R. R." Co. From the first of these attachments, the steamer was relieved by Garrison. From the second attachment she was not relieved.</p> <p>The first attachment was levied on the 16th of August,, 1866, under a proceeding in rem, instituted in the Circuit Court of Norfolk against the steamer, by the Norfolk &. Petersburg R. R. Co., under the Virginia statute of January 20, 1866. The steamer was taken into the custody of the sergeant under this levy, and remained in his custody under this levy until after the levy under the second attachment, and until September 3, 1866, when the defendant Garrison gave a bond to discharge the attachment, and the steamer was thereupon released by the sergeant from the levy under it, and subsequently on the 7th of June, 1868, on a motion made in behalf of the defendant to quash the attachment, it was quashed and dismissed. Afterwards the defendant Garrison recovered damages, suffered by him as the owner of the steamer, by reason of her detention under the attachment, in a suit brought by him in the Supreme Court of New York, in which suit he claimed to have been the owner during the period of such detention.. The second attachment (which constituted the breach of warranty complained of) was levied by the sergeant of Norfolk on the 17th day of August, 1866, while the steamer was still in his. possession and custody under the first attachment, in an action then commenced by the Norfolk & Petersburg R. R. Co., against the defendant Garrison personally, to recover $200,000 damages.</p> <p>This second attachinent was issued and received by the sergeant, and was levied by him by the delivery of a copy of the writ to H. V. Tompkins, the general agent in charge of the steamer George Leary and the other steamer then constituting-the “ new line Baltimore steamers,” Tompkins having been designated as being in possession of effects of, or owing debts-to the defendant; but the sergeant did not take possession of the steamer under this attachment, because the bond required by § 8 of chapter 151 of the Virginia Code as a condition of taking possession under the levy, had not been given.</p> <p>On the 3d day of September, 1866, the same day on which the defendant Garrison obtained the release of the steamer from the first attachment by giving a bond for that purpose, the plaintiff in the second attachment gave the requisite bond for the purpose of having possession of the steamer taken under the second attachment. The sergeant thereupon proceeded to the wharf to take the steamer in possession, but she had cast. loose from the wharf and was moving down the river, and therefore he could not take her in possession.</p> <p>The steamer having thus escaped from the possession of the sergeant, was brought by the defendant Garrison to Baltimore, -and was there delivered to the plaintiff, who received her in ignorance of the proceedings which had been taken, and of the levy which had been made under the last mentioned attachment.</p> <p>The Norfolk & Petersburg Railroad company, the plaintiffs in the last mentioned attachment suit, thereupon proceeded ■against Garrison by publication of the summons in said suit, and at the expiration of the period for service by publication, Garrison having failed to appear in said action, had their damages assessed by a jury, and on the 25th day of June, 1868,. recovered judgment against Garrison for the sum of $53,879 35, with interest from the 15th day of August, 1866.</p> <p>The Norfolk & Petersburg Railroad Company, after the ■obtaining of said judgment, brought the present plaintiff, the Baltimore Steam Packet Company, into court by taking proceedings against it in the said Circuit Court for the sale of the steamer under the attachment in the suit against Garrison, in which said judgment had been obtained. Upon and after the institution of the proceedings, the Baltimore Steam Packet ■Company, for the protection of title to, and property in said steamer, and under the provisions of § 27 of' ch. 151 of the Virginia Code, on the 29th day of January, 1869, presented a petition to the said Circuit Court, disputing the validity of said attachment, and claiming title to the steamer as the owners thereof, and also tendered a plea to the jurisdiction of the court, and filed a motion to quash the attachment.</p> <p>Before any hearing or further steps were had upon the proceedings taken against the Baltimore Steam Packet Company for the sale of the steamer under the said second attachment, the Baltimore Steam Packet Company, on the 6th day of March, 1869, caused a notice to be served upon the defendant ■’Garrison, personally, by which they notified him of said proceedings, and thereby vouched and required him to defend them against the claim of lien on said steamer, made by the Norfolk & Petersburg Railroad Company under and by virtue of the said attachment. The defendant, Garrison, however, paid no attention whatever to the said notice, and did nothing whatever to defend the title of the plaintiff, the Baltimore Steam Packet Company, against the said proceedings to enforce the said attachment, or to protect them against the same.</p> <p>The motion for the sale of the steamer and the petition, plea and motion of the Baltimore Steam Packet Company in opposition to the motion for said sale came on for hearing on the 11th day of January, 1870. Upon this hearing the Baltimore Steam Packet Company, by competent attorneys and counsel employed by them in that behalf, defended and opposed the proceedings to enforce said attachment, and endeavored to maintain their title against the said proceedings. The validity of the said attachment and of the levy upon the steamer under it was, however, sustained by the court, and the question of the title to said steamer at the time of the levy of said attachment, was tried by the court and a jury in pursuance of the provisions of the Virginia Code, and the jury rendered their verdict that, at the time of the levy of the attachment, the Baltimore Steam Packet Company had title to three-fourths of the said steamer, and that the said Garrison had title to the other one-fourth part thereof liable to said attachment. Thereupon evidence was taken by the court with respect to the cash market value of one undivided one-fourth part of the steamer, and such value was found to be $12,500, and thereupon on the 19th of January, 1870, the court rendered its decree, whereby it was ordered that the said one-fourth part of the said steamer, adjudged by the said verdict to be subject to the lien of said attachment, should be sold, and the proceeds of such sale paid to the Norfolk & Petersburg Railroad Company, on account of their said judgment against Garrison, and whereby it was further provided that if Garrison or the Baltimore Steam Packet Company, the claimant of said steamer, should, within thirty days from the adjournment of said court, pay to the said Norfolk & Petersburg Railroad Company the sum of $12,500, then no further proceedings should be had under said decree ; and • the said sum of $12,500 so paid should be in full satisfaction of the lien of the said attachment upon the said steamer.</p> <p>The Baltimore Steam Packet Company, thereupon, on the 2d day of February, 1870, caused said Garrison to be personally served with a certified copy of said decree, and with a further notice by which they called upon Garrison to protect them against the said decree, and notified him that in the event of his failure so to do, they would be compelled, under said decree, to pay the said sum of $12,500.</p> <p>On the 9th day of February, 1870, the Baltimore Steam Packet Company caused Garrison to be personally served with a further notice, calling his attention to certain provisions of the Virginia Code, under which he still had an opportunity of making defense against said decree, if so advised.</p> <p>On the 1st day of March, 1870, the Baltimore Steam Packet Company caused Garrison to be served personally with a further notice, to the effect that the limitation of time prescribed for the payment of the decree would expire on the 4th of March, 1870, and that unless by that day he protected them and the steamer against the said decree, they would be compelled to pay the sum of $12,500, therein referred to, in order to prevent the sale of the undivided one-fourth part of the steamer, and would hold him responsible to them for the sum so paid, and also for their costs, &c.</p> <p>Garrison did not respond in any way to these notices, and thereupon, on the 4th day of March, 1870, the Baltimore Steam Packet Company paid the said sum of $12,500 to the Norfolk & Petersburg Railroad Company, under the said order and decree, in full satisfaction thereof and of the lien of the said attachment, the said sum of $12,500 being far less than the cash market value of the said steamer, adjudged as aforesaid to be subject to the lien of the said attachment.</p> <p>The Baltimore Steam Packet Company also necessarily expended for costs and charges of attorneys and counsel, in resisting the proceedings to enforce the attachment against the steamer,, more than $3,001 75.</p> <p>Upon the above facts, the court held, as conclusions of law, that- the plaintiff, the Baltimore Steam Packet Company, were •entitled to recover of the defendant Garrison, the sum of $12,500, paid by them in satisfaction of said judgment, together with interest on said sum from the date of said payment, to wit, the 4th day of March, 1870, and that the said plaintiffs were also entitled to recover of the defendant Garrison, for costs, •charges, &c., necessarily expended by them in the defense of said proceedings to enforce said attachment, the sum of $3,001 75, with interest from October 4, 1870, the date of the commencement of the present action.</p> <p>Judgment was thereupon duly rendered, and entered in favor of the plaintiff and against the defendant, for said amounts and interest, besides costs, from which judgment this appeal was taken.</p>

Appeal by defendant from a judgment of this court, entered on an order of this court, made at special term by Hon. Hamilton W. Eobinson, confirming the report of Thomas H. Landon, Esq., as referee in an accounting had before him.

Appeal by plaintiff from a judgment of this court, entered by direction of Chief Justice Chables P. Daly, overruling a demurrer to the answer of the defendants. The plaintiff, who is a theatrical manager, has been in the habit of giving dramatic and other entertainments or performances, on Sundays, at a place in this city known as Terrace Garden.

Appeal by plaintiff from a judgment of this court entered on the decision of Judge Robinson dismissing the complaint, after a trial before him without a jury. The action was brought to recover a balance of salary due the plaintiff as clerk to the commissioners of taxes and assessments. The facts are fully stated in the following opinion, which was delivered at special term by

Appeal by defendants from a judgment of this court, entered on the verdict of a jury, after a trial before Judge Robnrsoír. The facts are stated in the opinion.

<p>Motion for judgment on a verdict ordered by Judge Loew at trial term, subject to the opinion of the court at general term.</p> <p>The facts are stated in the opinion.</p>

<p>When plaintiff was employed as clerk, under an agreement that he should receive, as salary, a sum equal to a certain proportion of the net profits of the business of the defendants, and should receive $35 weekly, on account of his salary, and no provision was made for repayment of such sums paid weekly, in case there were no profits realized from the business: Held, that plaintiff was in any event, whether profits were made or not, entitled to receive $35 per week as salary.</p>

Appeal by defendants from a judgment entered on the verdict of a jury, after a trial before Judge Laeeehobe. The facts are stated in the opinion.

<p>Where a lunatic, who was a Farsee merchant and a native of India, and who had become insane while in this country, and of whose person and estate a committee had been appointed, had been sent home to India, and a committee of his person and estate appointed by the Indian courts, this court refused to order the estate to he turned over to the committee of the estate in India, being satisfied on examination of all the circumstances of the case, that it was not for the benefit of the lunatic that it should he done.</p> <p>In such a case the surrendering of the control of the lunatic’s estate is in the discretion of the court, and it will not surrender it unless it is clearly for the advantage of the lunatic that it should be done.</p>

Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the verdict of a jury. The facts are stated in the opinion.

Appeal by plaintiff from a'judgment of the general term, of the Marine Court, affirming a judgment of that court dismissing the complaint, entered by direction of a judge of that court at trial term. The facts are fully stated in the opinion.

<p>Where the court was of opinion that the claim of the plaintiff (which had been rejected) was of a character scarcely escaping what is, denominated as “ lobby servicesHeld, to be a good ground for refusing the plaintiff leave to go to Court of Appeals.</p> <p>Where the determination of a suit depends upon the construction of a written instrument, leave to go to the Court of Appeals will not be granted where there is no dissent among the judges of the general term, and where there is no question of general interest or public importance involved.</p>

Exceptions ordered to be heard in the first instance at general term, to a dismissal of the complaint on a trial before Mr. Justice Joseph F. Daly and a jury. The facts shown by the plaintiff in his complaint and on the trial were, that he was the holder of three of the bonds of the Texas & New Orleans Railroad, and that the bondholders had been foreclosing a mortgage on the road, and a receiver had been appointed to take possession of the road.

Appeal by plaintiff from a judgment of this court entered on the report of William G-. Wheelwright, as referee. The facts are fully stated in the opinion.

Appeal by defendant from a judgment of this court entered on the verdict of a jury for $6,396 93, rendered by direction of Judge Joseph F. Daly, at trial term.

<p>The Board of Commissioners of Public Charities and Correction of the City of New York, created by the city charter (L. 1873, ch. 335, § 74), are the overseers of the poor of a town, so as to enable them to sue for penalties imposed by the act “ to suppress intemperance, and to regulate the sale of intoxicating liquors ” (L. 1857, ch. 628), and which, by the statute, are to be sued for and recovered “ in a civil action by and in the name of the overseers of the poor of the town in which the alleged penalty was incurred.”</p> <p>The different bodies who have acted as overseers of the poor, and exercised their powers in the city of New York, examined and explained. Per Chief Justice Daly.</p>

<p>Appeal by plaintiff from a judgment of the court entered on the decision of Judge Labbemobe, after a trial before him without a jury.</p> <p>The action was brought to obtain the decree of the court that plaintiff, as an owner of lands fronting on 156th street, in the city of New York, was entitled to have said street kept open as a street in front of her lands to its full width of 60 feet, and that the defendants, Kirtland and Kernel1, be directed to remove, or cause to be removered, all fences or obstructions placed by them thereon, to set back their fences to the southerly line of said street, and to refrain from in any way obstructing the southerly half of said street, &c.</p> <p>The facts are fully stated in the opinion of the court at special term, which was delivered by</p>

Appeal by plaintiffs from a judgment of this court dismissing the complaint, entered by direction of Judge Van Brunt at trial term.

Appeal by defendants from a judgment of this court, entered on the verdict of a jury, after a trial before Judge Robihsoh. The action was brought to recover damages for a breach of warranty by the defendants, on a sale by them of one abd a half pounds of cabbage seed (for the price of nine dollars), which they had represented and warranted to be the Yan Wycklen early flat Dutch cabbage seed.

Appeal by plaintiff from a judgment of this court entered ■on the decision of Judge Roblhsoh dismissing the complaint. The action was brought against the defendant on an undertaking executed by his testator in a suit by these plaintiffs against one J. O. Bixbee, to release the defendant there from the custody of the sheriff.

Appeal by defendant from a judgment of the First District Court in the city of New York, against him for $45 36, besides costs. The facts are fully stated in the opinion.

Appeal by defendant from an order made at special term by Judge Joseph F. Daly, overruling a demurrer, and from the judgment entered thereon. The action was brought to have declared void a tax assessed on the plaintiff’s property. The facts are fully stated in the opinion.

The decision of this court, which it was desired to review in the Court of Appeals, is reported ante, p. 324, where the facts of the case are stated.

Application to discharge a judgment entered on a forfeited recognizance. The first application was denied, and the following opinion delivered on November 5th, 1875.

<p>On an application to discharge a judgment entered on a forfeited recognizance,, where, after the forfeiture, the prisoner has been surrendered and stood his trial and been acquitted, certified copies of the recognizance, indictment, order of forfeiture, and record of acquittal must be furnished, together with the proofs-that the prosecution has not suffered by the delay.</p>

<p>Application by the surety Florence to have discharged a judgment entered on a forfeited recognizance.</p>

<p>When a judgment is taken, by default in a justice’s court, and an appeal is brought to this court to set aside the judgment, the appellant must not only excuse his default, but satisfy the court by affidavit, that manifest injustice has been done. The defense which he has must be clearly set forth and sworn to, and if contradicted by the affidavit of the respondent, it must be corroborated. A mere affidavit of merits is not enough.</p>

<p>Appeal from a judgment of a District Court.</p>

Appeal by defendant from a judgment of this court entered on the decision of Judge Loew, after a trial before him without .a jury. The facts are fully stated in the opinion.

<p>An action can be maintained by one partner against another for a breach of a covenant contained in the articles of copartnership where the liability arising from the covenant is entirely distinct from the affairs of the partnership, and in no way jointly connected with the prosecution of it as a joint enterprise or adventure.</p> <p>Where the defendant and another entered into a partnership in the purchase of and transactions in regard to horses, and the defendant agreed with his partner that no charge should be made against him (the partner) for the keeping or the training of the horses: Held, that an action at law would lie against the defendant for a breach of this covenant on his part, in consequence of which his partner was obliged to provide for the keeping of the horses, and that the fact that a suit in equity was pending for the settlement and adjustment of the partnership accounts was not a bar to the action, if the breach of this covenant by the defendant was not set up and litigated in that action.</p>

Appeal by defendant from a judgment of the Seventh District Court in the city of New York. The facts are fully stated in the opinion.

<p>On the reversal by this court of a judgment rendered by a District Court in the-city of New York, the appellant, under § 368 of the Code, providing that if the judgment is reversed, “ costs shall be awarded to the appellant,” is entitled to costs as a matter of right, and the court has no power to deprive him of them ; and where, by inadvertence, an order is entered at general term, reversing the judgment, without costs against the respondent, the court, on a proper application, will modify the order so as to give costs to the appellant.</p>

<p>The plaintiff had in his warehouse sofas and chairs already manufactured, and ready to have put on them a covering according to the taste or choice of the purchaser. The defendant selected a sofa and some chairs, and gave orders to have them covered with a certain material, and the price of the articles selected, covered with the material chosen by him, was agreed on (which amounted to more than $60): Held, that this was a contract for the sale of goods within the statute of frauds (2 R. S. 136, § 3).</p> <p>Where the contract is for the purchase of an article which the vendor usually has for sale in the course of his business, which he keeps in his warehouse substantially made but not entirely finished, that the taste or wish of the purchaser may be consulted as to the final finish, the finishing of it in the way that the purchaser prefers does not change the contract from one of sale into a contract for work and labor.</p>

<p>An action brought in a District Court of the city of New York, to recover the possession of personal property, cannot be removed to this court for trial under the provisions of the District Court act of 1857 (L. 1857, ch. 344, § 3), allowing actions to be removed when the amount sued for exceeds $100.</p>

Appeals from orders of this court made at special term, one in the ease of Orvis v. Jennings and Jones, by Judge Joseph F. Daly, and one made in the case of Orvis v. Dana, by Judge Van Brunt. Both actions were for libel.

<p>Under the statutes relating to the Marine Court of the city of Hew York, an appeal cannot he taken to this court from an order of the general term of that court affirming an order made at special term, granting a new trial on a motion, made on the judge’s minutes, unless the appellant stipulates that in case the-order he affirmed, judgment absolute shall he rendered against him.</p>

Appeal taken by Laura A. Bass, from an order made by Judge Larremore, denying a motion to vacate the judgment and all proceedings in the suit, on the ground of want of jurisdiction of the court. The action was brought by Augustus E. Masters, the holder of five shares of stock in the Eclectic Life Insurance Company, to dissolve the corporation and wind up its affairs, on the ground that it was insolvent.

Appeal by defendant from a judgment of the Marine Court of the city of New York, entered on an order of the general term of that court affirming a judgment against the defendant rendered after a trial before a judge of that court, without a jury.

An appeal from a judgment entered on the report of Bichard M. Henry, referee, in favor of Michael Grosz against James Purssell. The action was instituted to foreclose two mechanics’ liens, one filed by Grosz and the other by Jackson, against the Park theatre, the property of Purssell.

<p>In an action in a District Court of the city of New York, the plaintiff at the time of joining issue demanded a jury trial, and paid the jury fee; after several adjournments of the cause, the case being called for trial the plaintiff waived a. jury, and against the objections of the defendants, the justice dismissed the jury and heard the cause alone. Held, no error.</p>

Appeal by plaintiffs from a judgment of the Marine Oourt of the city of New York, entered on an order of the general term of that court affirming a judgment of that court entered by direction of a judge thereof, at trial term, dismissing the complaint against the defendant Dickie. The facts are fully stated in the opinion.

Appeal by defendant from a judgment of the Marine Court of the city of New York, entered on an order of the general term of that court, affirming a judgment of that court entered on the verdict of a jury.

Appeal by defendant from a judgment of the Marine Court^of the city of New York. The facts are fully stated in the opinion.

<p>Appeal by defendant from an order of this court-made at special term by Judge Yah Bkhnt, denying a motion made by the defendant to place the cause on the general calendar of the court.</p> <p>The facts are fully stated in the opinion.</p>

<p>"Where the plaintiff, who was a person who was not acquainted with any foreign language, and incompetent to perform the duties of an interpreter, was appointed by the justice of one of the District Courts in the city of New York (under L. 1866, ch. V48, giving him power “to appoint an officer” to “be known and designated as District Court interpreter”), as interpreter of that court, but the ¡tiaintiff, during the term of his appointment, never performed any services as interpreter: Meld, that the plaintiff, by accepting the position of interpreter, when he understood no foreign language, and could not interpret at all, stood convicted of a fraud upon the appointing power and the public, or upon the •public alone, and was not entitled to recover the salary attached by the statute to the position of interpreter.</p>

<p>Application to have vacated a judgment entered on a forfeited recognizance.</p> <p>The facts are stated in the opinion.</p>

Exceptions ordered to be heard in the first instance at general term, after a trial before Judge Van Brunt. The plaintiff brought his action to recover from the defendant damages for a severe bodily injury he sustained from being struck with a stone thrown from a blast made by the defendant, while blasting rocks on some lots owned by him in the city of New York, in 49th street, near the East river.

<p>Appeal by defendant from a judgment of this court, entered on the verdict of a jury, for $2,837, after a trial before Judge Van Brunt.</p> <p>The issue in the case was whether the defendant, the corporation of the city of New York, was liable for the printing of constitutional amendment ballots, printed pursuant to a resolution of the board of aldermen of the city acting as supervisors, and pursuant to a resolution of the commissioners of the city record.</p> <p>At the trial, Judge Van Brunt held that the defendant was so liable, and submitted to the jury only the question as to what was the reasonable value of the work done by the plaintiff.</p>

<p>Appeal by defendant in an equity case heard and decided by Judge Robinson.</p> <p>In 1851, William Hurry was the owner of the lots shown on the following diagram, and numbered one to five inclusive :</p> <p> </p> <p>Lots Nos. 1 and 2 were conveyed by Hurry in 1851, and lot No. 3, in 1853; and each of the deeds of conveyance contained a covenant as follows :</p> <p>“ And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said Wm. Hurry, his heirs, executors, and administrators, that neither the said party of the second part, nor his heirs or assigns, nor any person claiming under, through, or by means of this conveyance, shall or will at any time hereafter erect upon said lot any other building whatever than a genteel dwelling-house to cover the whole front of said lot, but not to be of greater depth than fifty feet; and which covenant is hereby declared to be a continuing covenant, and to be for the benefit of the owners of the lots now owned by said William Hurry, between this lot and 26th street, so that the same may have freedom of air, light, and vision.”</p> <p>In 1855, Hurry conveyed lots Nos. 1 and 5 to the plaintiff, and the deed of conveyance contained the following covenant: “ And the said party of the second part, for herself, her heirs and assigns, doth hereby covenant to and with said William Hurry, his heirs, executors, and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect any buildings on the said lot of land fronting on Fifth avenue (the “ Ludlow” lot) except a first class dwelling-house, not to exceed fifty feet in depth.”</p> <p>In 1858, lot Ho. 3 was reconveyed to Hurry, who sold again in 1860, by a deed in which the covenant in the original deed was not in terms renewed, and the defendant derives title to this lot by divers mesne conveyances.</p> <p>The plaintiff having made a verbal contract of sale of lot Ho. 4, the vendee entered into possession and built a house thereon fifty-nine feet deep. The plaintiff had no knowledge of the fact that this building constructed on this lot was more , than fifty feet deep until after it was built. She however conveyed the lot with the building upon it.</p> <p>The defendant, with the knowledge of the plaintiff, and without her objection; built a portion of the Hotel Brunswick, and he proposed to extend his building more than fifty feet from the front of his lot, and this action was brought to restrain the same.</p>

<p>Where the defendant made, an oral agreement for the hiring of premises for thirteen months, and after occupying them for two months vacated them: Held, in an action for rent for the two succeeding months, that the agreement for the hiring, being for more than a year, was void under the statute of frauds (2 E. S. 134, § 6); but that, until the termination of the thirteen months, the defendant was a tenant from month to month and could not quit without a month’s notice to the landlord.</p> <p>The case of Gibbons v. Dayton (4 Hun, 451) criticised and distinguished. Per Charles P. Daly, Ch. J.</p>

<p>Appeal by defendants from an order made by Judge Van Brunt, striking out certain parts of the judgment roll in the action.</p> <p>The original summons and complaint in this action, after answer thereto by one of the defendants, was first amended by making The Minnesota Railway Construction Company a co-defendant.</p> <p>All the defendants then united in a joint and several demurrer to that complaint: 1st. For want of jurisdiction of the action ; 2d. That the complaint did not state facts to constitute a cause of action against the defendant so demurring ;' 3d. That there was a defect of parties, in that the holders of the stock and bonds of the St. Paul & Chicago Railway Company, other than the plaintiff, ought to be made parties plaintiff, either actually or by representative; and 4th, That several causes of action were improperly joined.</p> <p>This demurrer was sustained as to the Milwaukee & St. Paul Railway Company, with leave granted to the plaintiffs to amend in twenty days as to them, and for failure to amend as to them, judgment of dismissal was ordered on the demurrer as to all the other defendants, leave being granted to them to answer on terms.</p> <p>Plaintiffs again, for the second time, amended their complaint. A motion was made thereon by all the defendants, that certain portions of'the complaint, as last amended, be stricken out as irrelevent and redundant, which was denied, whereupon the defendants severally demurred thereto for misjoinder of causes of action; for insufficiency of statement of any cause of action as to several of the defendants, and, among other grounds, that the action did not purport to be brought by plaintiffs as stockholders, on behalf of themselves and all others similarly situated.</p> <p>This demurrer was sustained, as to this last ground, and judgment given for the defendants, unless plaintiffs amended in twenty days.</p> <p>The other grounds of demurrer were overruled, and judgment given the plaintiffs thereon, with leave to defendants to amend in twenty days.</p> <p>Plaintiffs thereupon served a third amended complaint. To this the defendants severally demurred : 1st. For want of jurisdiction of the action as against the several foreign corporations, for that it appeared that all the plaintiffs were not residents of this State, and that the supposed cause of action did not arise in this State; 2d. No cause of action against Russel Sage, as President of The Minnesota Railway Construction Company, either separately or jointly with the other defendants ; 3d. No cause of action against either of the other defendants, separately or jointly ; 4th. The improper uniting of distinct and separate causes of action, with nine specifications; 5th. A separate demurrer by The Minnesota Railway Construction Company, of insufficiency of any statement of any cause of action as against them, and that they were unnecessary parties; 6th. That the complaint, so far as it purported to allege any supposed cause of action in favor of plaintiffs and of others as creditors at large, was improper, in attempting to make such other creditors parties ; 'Tth. Other alleged defects are specified.</p> <p>This demurrer was overruled, and, on appeal to the general term, that decision was affirmed, whereupon all the defendants answered, severally and jointly. The cause was tried and judgment rendered against the St. Paul & Chicago Railway Company, and in favor of all the other defendants.</p> <p>In making np the judgment roll, defendants caused the original and all the amended complaints, together with all the demurrers and answers, proceedings and orders made in respect thereto, to be incorporated and made parts thereof.</p> <p>On motion of the plaintiffs an order was granted that the several original and amended summons and complaints, except the summons and complaint as last amended, together with all demurrers to the original, or any of the amended eomploÁnts, and the orders thereon, contained in the judgment roll filed in the action, should be stricken from and out of said judgment roll, and that the said judgment roll be accordingly amended.</p> <p>This appeal was taken by the defendants from that order.</p>

Appeal by defendant from a judgment in favor of plaintiff for $3,362 68, entered on the verdict of a jury rendered at trial term by direction of Judge Tan Bbunt. The action was for salary as assistant janitor in the sheriff’s office in the city of New York, at the rate of $1,200 per annum, payable monthly, from September 1, 1871, to January 1, 1874, and interest.

Exceptions ordered to be heard in the first instance at general term, to a verdict for the defendant directed at trial term by Judge Van LIoesen. The action was brought to oust the defendant from the office of clerk of the District Court in the city of New York for the Eighth Judicial District, and to establish the right of the relator thereto. The facts are fully stated in the opinion.

<p>Appeal from the judgment of a District Court. The facts are stated in the opinion.</p>

Appeal by defendant from a judgment of this court entered on the verdict of a jury for $4,904 56, directed by Judge Loew at trial term. The facts are fully stated in the opinion.

<p>A married woman who lives with her husband and is supported by him, and has no separate business or employment, cannot, in an action to recover damages for personal injuries sustained by her through the negligence of the defendant, under the statute (L. 1860, cb. 90, § -7), which provides that she may bring and maintain the action as if she were sole, recover damages for the loss of her time.</p>

<p>Exceptions by plaintiff, ordered to be heard in the first instance at general term, to the direction of Judge Van Brunt at trial term, directing the jury to find a verdict for the defendant.</p>

Appeal by defendant from a judgment of the Marine Court, entered on an order of that court at the general term thereof, ■affirming a judgment of that court entered on the verdict of a jury rendered by direction of a judge of that court at trial term.

Appeal by Frederick A. Conkliug, Receiver of the -Etna Fire Insurance Company of New York, from an order of this court made by Chief Justice Daly, confirming a report made by James McNamee, Esq., appointed referee to hear and determine all such claims against The -Etna F. Insurance Company of the city of New York, as should be exhibited to him.

Appeal by the defendant Hannah Kennedy, who was impleaded with David T. Kennedy, from an order made by Judge Van Brunt directing judgment on her answer as frivolous.

<p>Where an accommodation note was dated at and made payable in Hew Jersey, I and was afterwards indorsed in this State for the accommodation of the maker 1 and for the purpose of procuring it to be discounted in this State, where it was afterwards discounted at a usurious rate of interest: Held, that, as the note, as »' against the accommodation maker and indorser, had no validity until discounted, that it was a contract to be governed by the laws of this State.</p>

<p>Motion to dismiss an order for the examination of a judgment debtor in supplementary proceedings, on the ground that since the return of the execution unsatisfied the judgment creditor had died, and that his executrix, Mary Walker, at whose instance the order for the examination of the defendant had been granted, bad never had the judgment revived and continued in her name.</p>

Appeal by defendant from a judgment of this court, entered on the verdict of a jury for $11,285 87, rendered after a trial before Judge Joseph F. Daly. This action was brought by the plaintiff as owner of a promissory note for $10,000, against John Schappert, one of the indorsers. The only questions at issue were as to the regularity of notice of protest.