Volume 6 — Jones & Spencer's New York Superior Court Reports

<p>i. evidence.</p> <p>1. Pbbstmftiohs.</p> <p>1. Every man is presumed to obey the mandates of the law, and to perform all his official and social duties until the contrary appears.</p> <p>a. Trustee of a eorpwation presumed to be a stockholder if the law requires a trustee to be a stockholder.</p>

<p>I. Costs—Interrogatories.</p> <p>1. But one charge of ten clollars can be made for all the interrogatories annexed to a commission; although a number of witnesses are named in the commission, and separate interrogatories are drawn for each.</p>

The action is to foreclose a mortgage for three-thousand five hundred dollars, made by the defendant, to Thomas Bracken, dated June 13, 1867, for one year, assigned by Bracken to Charles Emmons, March 25, 1868, and assigned by Emmons to James Appleby,, June 13, 1871. On June 13, 1869, Emmons extended the time for the payment of the bond and mortgage to June 13,. 1870. On June 13, 1870, Emmons again extended the-time of payment for one year.

Appeal by plaintiff from judgment in favor of defendant, entered on the report of a referee. This action was brought to recover from the defendant a debt, alleged to be due from the Hilliard & Adams Manufacturing Company to the plaintiff, for money loaned by plaintiff to it.

The complaint in this case was as follows:— “I. That on or about April 25, 1870, the plaintiffs and the defendant entered into a copartnership by verbal agreement, for the purpose of carrying on the business of a Turkish bath establishment, at No. 61 Lexington-avenue, in the city of New York, and on July 22, 1870, the plaintiffs made a further verbal agreement that their said copartnership should continue five years.” “II.

The complaint alleged that on or before January 16, 1866, a firm of Blagge & Co., had money and other property in the hands of the plaintiffs, constituting the firm of Duncan, Sherman & Co. ; that on said day the defendants procured an attachment agamst the property of said firm of Blagge & Co., as non-residents, which was delivered to the sheriff; that the defendants caused said “ sheriff to serve said attachment against the said firm of Blagge & Co., upon the said firm of…

Appeal by defendant from a judgment in favor of plaintiff entered on the report of a referee.

The motion at the special term was for an order directing certain parts of the complaint to be stricken out as “irrelevant and redundant.” The motion was denied, and the defendant appealed.

Motion to set aside a sale of personal property, sold under an execution. Judgment having been entered in favor of the plaintiff against the defendant, an appeal was taken therefrom to the general term. An undertaking on the part of the defendant, under section 335 of the Code, was duly filed, but there was no undertaking given under section 334.

Motion to set aside a supplemental complaint. Two of the plaintiffs having died, pending the action, and more than a year having elapsed since such-death, a supplemental complaint, alleging such death, and that others, named therein, had succeeded to the interests of the deceased persons, was, without any leave obtained therefor, served upon the defendants, for the purpose of reviving the action in the name of such successors in interest.

Motion in the nature of an appeal from taxation oi costs by the clerk. This was an action to recover the possession of per sonal property alleged to have been wrongfully detained by the defendants.

Motion to continue an injunction. The plaintiffs are the owners of a floating bath known as “Hoeft’s Bath,” which is now, and for the last eight years has been moored in the waters of the East river, adjacent to, and immediately south of pier number fifty-five, East river, and is fastened to the pier.

Motion to set aside a judgnent. The plaintiff obtained a judgment against Wicks and wife, which upon appeal was affirmed as to Wicks, and reversed as to his wife; and to the latter a new trial was granted.

Motion to confirm the report of a referee to whom it was referred to ascertain damages.

Demurrer to a reply. The action is to foreclose a mortgage. The defendants, by separate answers, set up a counterclaim, to which the plaintiff served a reply. The defendants demurred to the reply for insufficiency.

Action for the partition of a lot of land in the city of New York, tried by the court without a jury. The complaint alleged the seizin of the parties, as tenants in common, in the following proportions :—viz. The plaintiff one equal undivided moiety or half part, and the defendants, except Susan McMff, each one equal undivided twelfth part, subject to the free and uninterrupted use thereof, by the said Susan.

The case of a verdict for defendants, and the judgment suspended by the court, and plaintiff’s exceptions ordered to be heard in the first instance at general term. Held: to exercise that authority in the interest of the plaintiff, and not in their own interest. (6.) If the jury find that the defendants sold the stocks in question in their own interest and to save themselves, the plaintiff is entitled to a verdict.

Appeal of George H. Waite, purchaser on the sale trader the execution issued in this action, from the order of the court vacating and setting aside the sale. Held: these were fair questions to be submitted to a jury. The foregoing is submitted as a fair review of the decisions referred to in the opinion, and not one of them will be found to justify the order appealed from.

Robert A. Gregory in his lifetime, was indebted to one Cyrenus Bloodgood in about the sum of one thousand five hundred dollars. He died October 1, 1868. His will was proved, and Sarah J. Gregory, his widow, on October 19, 1868, qualified as sole executrix.

Exceptions heard at general term in the first instance. On the evening of May 29, 1869, the plaintiff, a policeman, while on duty in his precinct, saw a window in the second story of defendant’s store open. Suspecting something wrong he rapped, and was joined by a fellow-policeman named Gannon. They entered by means of a ladder, at the window, which was shoved up. Gannon lit a match, but it went out.

<p>When the trustees of a manufacturing company failed to make, file and publish the annual report required by statute, and a creditor of the company at the time of such default subsequently took the promissory notes of the company in renewal, which were not paid at maturity, and one of which was not due at the time of the commencement of the action against the trustees.</p> <p>Jleld, that under the statute, the liability of the trustees became fixed at the time of the default; that such liability was in the nature of a penalty for neglect of duty ; that the trustees are neither parties nor privies to the original contract between the creditor and the corporation, nor to an^ judgment which might be recovered against the corporation thereon ; and that, consequently, neither the creditor’s effort to collect bis debt from the corporation, nor the taking of notes in renewal, is a waiver or abandonment of his remedy against the trustees.</p> <p>The debt against the corporation is not canceled by the creditor taking notes for the same. The notes are simply the company’s promise to pay the debt at a futuro time, the indebtedness still . remaining (Doming y. Puleston, 35 Superior Ot. [3 J. <6 S.]; 55 A. T. 655); nor is the liability of the trustees affected by the recovery of a judgment by the creditor against the corporation for the debt (Vincent y. Binds, 33 Superior Ct. [1 J. df if.] 511).</p>

The action was for claim and delivery of fifteen casks cream-tartar, thirteen of which were taken by the sheriff, and delivered to the plaintiffs; the other two had been used by defendants in their business. Verdict was rendered for the plaintiffs. From this judgment the defendants appeal.

The action was brought to recover a promissory note for five thousand dollars, dated January 30, 1871, payable one year from date, made by the Solar Chemical Manufacturing Company, payable to its own order, and indorsed by the company and the defendant. The case was tried before a judge and a jury, and judgment for six thousand and forty dollars and forty-two cents, was entered on a verdict for the plaintiff. The defendant appeals from the judgment.

<p>1. PERSONAL SERVICES.—CONTRACT FOR—MANAGERS AND ACTORS.</p> <p>1. Bbeaoh, bestbaintng by injunction.</p> <p>1. An action lies by the employer against his employee, who contracts to render his p?rsonal services to the employer, and during the time of such employment not to render them to any other person, to prevent the employee from rendering his services to any other person, when by so doing irreparable damage will be caused to the employer.</p> <p>Semble, the action will lie, although the contract does not contain the negative clause. w‘</p> <p> a. Glasses of cases not in conflict toith above proposition, </p> <p>1. Those holding that relief by injunction, can not be granted when the bill prays solely for a specific performance which can not be enforced by judicial sentence.</p> <p>2. Those holding that where the bill prays for the specific performance of the positive part, and as incidental relief for prohibition of the violation of the negative part of the contract, the prohibition can not be granted unless the court pursues the power of enforcing the positive part.</p> <p>3. Those in which the injunction was denied for want of equity in the bill, are not in conflict. " *</p> <p> b. Decisions overruled : </p> <p>Kemble v. Kean, 6 Simons, 333; Kimberly i. Jennings, Id. 340.</p> <p> c. Decisions not in conflict with the proposition : </p> <p>De Rivasinati v. Oosetti, 4 Paige, 264; Hamblin v. Dinneford, 2 Edw. Oh. 5s:9; Sanquirico v. Benedetti, 1 Barb. 315; • Fredericks v. Mayer, 13 Dow. Pr. 566; S. 0., 1 Bosw. 227; Butler v. Galette, 21 How. Pr. 227; DePol v. Sohlke, 7 Bob. 280.</p> <p>2. Ibbepabable damages.</p> <p>a. Where a manager of a theater in the city of New York makes a contract for a dramatic season, with one who is a distinguished actress, and a great artistic acquisition, both in name and dramatic service, to any theater, and it was understood between the parties that such contract was made, because the manager desired (1) to secure her dramatic service, (2) her name (3) to prevent her acting elsewhere in the city without his permission, and obtaining eclat for -v rival theater, and the manager had publicly announced her as member of his company, there the engagement by the actress to play during such season at another theater in the city of Hew York, a rival to the plaintiff, and tire public announcement of her appearance there, presents a case of irreparable damage.</p> <p>ALTHOUGH</p> <p>the actress may be pecuniarily able to respond to any damages that might he recovered at law.</p> <p>3. Defenses to application fob an injunction, what abb not.</p> <p>1. Closing the previous season, for which she was engaged, four weeks earlier than the time specified in the contract, whereby the actress did not receive a benefit from which she expected to realize five hundred dollars, but for which she subsequently accepted one hundred and fifty dollars, and her inability to obtain compensation for said four weeks, constitutes no defense.</p> <p>Appearance on the stage; the not permitting her during the previous season to appear on the stage on" a sufficient number of occasions, and the easting her when she was permitted to appear in parts entirely subordinate to the line of business to which she was entitled, constitutes no defense (Fetehtcr «. Montgomery, S3 Beavan, 22, distinguished).</p> <p>'3. An allegation in general terms that the manager’s intentions in inducing the contract (of which the actress was not aware at the time) were not to produce the actress, but to prevent her appearance on the stage, and thus- to injure her professional standing and reputation, without stating any particulars, facts or circumstances tending to establish a motive for such a course, is wholly insufficient to raise a defense, especially, when other facts in the case tend to disprove the allegation.</p> <p>4. Besteaint of tbade.</p> <p>a. Contract in this case held, not to be void, as being in restraint of trade.</p> <p>IV. Inequitable.</p> <p>a. Prohibition running from date of contract instead of commencement of season, held not to be inequitable, the actress being a shrewd lady of great business capacity.</p> <p>II. JUKISDICTIOH.</p> <p>1. Stipulation by parties can not give,</p> <p>BUT</p> <p>where there is otherwise jurisdiction to restrain by injunction, the parties in a proper case may agree on the terms of restraint.</p>

Action to reform a written contract. Trial by the court without a jury.

The action was to recover damages for cutting off a supply of gas from the building and premises occupied by the plaintiff. The plaintiff took possession of the house on August 25, 1871, for the purpose of conducting the same as a boarding-house, and on the 28th of the same month applied to the defendants for a supply of gas.

The action was to recover the price of merchandise consigned by one Vosburg, to the defendants, for sale. The plaintiff claimed to recover as the assignee in bankruptcy of Vosburg.

The complaint alleged “that the defendant was the owner, and had the possession and.control of the premises on the northwesterly corner of Nassau and Fulton-streets, in the city of New York, with the appurtenances thereto belonging, on which premises he was then erecting a building.

The action was to recover the price of “divers goods, wares and merchandise,” which, at the request of the defendant, the plaintiffs had manufactured for him. » The complaint alleged that, at the special instance and request of the said defendant, said plaintiffs manufactured and caused to be manufactured for and sold to said defendant divers goods, wares and merchandise, at the price and for the consideration of nine thousand and sixty one dollars and forty-five cents,…

The complaint in the first paragraph alleges that in June, 1856, the plaintiff was the owner, and in possession of certain described premises, and in the last paragraph, that the defendants are now in the possession of the premises, and unjustly withholds the same from the plaintiff, and the demand for judgment is to recover possession, of the premises.

This case was decided upon the opinion of the learned judge at the special term, before whom the same was tried, and the judgment affirmed. The decision and findings of fact and law by the judge of the special term sufficiently illustrate the facts and points. 1.

Appeal by defendant from judgment and order denying motion for new trial. The facts appear fully in the opinion of the court.

<p>Books of account as evidence :</p> <p>1. Pass-books, kept by the employee of a firm, in its business, and which contained debit and credit entries, and purported to be a full account between the defendant and the firm, and which were for the greater part in the possession of the employee, who, as often as he saw fit, handed the same to the book-keeper of the firm, for the purpose of being written up; and said book-keeper did, in his capacity of book-keeper, make all necessary entries therein, and returned them to the employee. Such pass-books constituted accounts between the parties, that had been rendered by the firm to the employee, and, as such, were admissible as evidence, irrespective of the question as to whether the entries therein were original entries, or transcribed from other books.</p> <p>2. In regard to the books relating to the business of a firm, consisting of a day-book, journal, ledger, cash-book, and blotter, kept by a book-keeper, who testified that he had the entire charge of them, and made all the entries therein, in the discharge of his duties as book-keeper, and in the ordinary course of the business of the firm, and that such entries were correctly made, and they were the original entries, and that the greater part of the moneys charged against the employee were paid to him by said book-keeper, for, and by direction of, said firm.</p> <p>Held, that this testimony was sufficient to admit the books as evidence of the account of the firm with the employee.</p> <p>3. The rule laid down in Yosburgh ®. Thayer (12 Johns. 461), and followed so long in the courts of this State, in regard to the admission of books of account as evidence, although dissented from in the court of common pleas of New York (Conklin ®. Stamler, 2 Hilt. 422, Daly, Ch. J.), is sustained in the supreme court, in Tomlinson v. Borst (30 Barb. 42); which last case has been cited with approbation by the court of appeals (Stroud ■v. Tilton, 3 Keyes, 139). But the rule laid down in Yosburgh v. Thayer (supra), applied only to cases where the party kept no clerk, and never applied to cases where the books were kept by a clerk. Entries made by third persons always stood upon a different footing.</p> <p>4. It seems now to be the settled law of this State, that parties may introduce books of account in evidence, and a party may supply, if he can, the preliminary proof of the correctness of the books by his own oath, whenever it is made to appear that the party had no clerk; or, if he had one, that the clerk was dead. In Stroud e. Tilton (3 Keyes, 139), the admission of the books was upheld on proof of their general correctness, and of the accuracy of the charges, and of the death of the clerk who kept the books, by plaintiff’sow» oath, although it appeared that the items of the account were entered or noted, in the first instance, on slates, in the various work-rooms, and subsequently entered upon the books by the clerk.</p> <p>5. In the case of entries being made by a clerk or book-keeper, if he is living and competent to testify, he must be produced, and testify to the facts that will make the books evidence.</p> <p>1. The entry must be one which it was the duty of the clerk to make, or which belonged to the transaction, or part thereof.</p> <p>3. The person making the entry must either have had competent knowledge of the fact, or it must have been part of his duty to have known it when he made it; and there must not exist any motive to enter that transaction falsely any more than any other; and it must have been made at or about the time the transaction occurred to which it relates.</p> <p>In cases where such proof is made, the entry itself is admitted as original evidence, and part of the res gestm, and constituted an independent and original fact, to be weighed like all others in the case, whether it corroborates or impeaches the testimony of the person who made it.</p> <p>■6. If the person who made the entry is dead, or if he is called as a witness, and has no recollection of the transaction outside of the books and entries, proof of his uniform practice to enter all such transactions truly, and at or about the time they occurred, and (in case the clerk testifies) that he has no doubt of the accuracy of the entry in question, the entry is considered sufficient as original evidence, and not hearsay, to establish the fact in question (1 Greenl. Ed. §§ 115, 117; Bank of Monroe ». Culver, 3 Kill, 531).</p> <p>7. Books of account may also be received in evidence of cash payments (Case v. Potter, 8 Johns. 163, reviewed).</p>

At the time of the commencement of the action, both plaintiff and defendants were, and they still are refiners of lard in the city of New York, and largely engaged in that business. The action was brought to restrain an alleged violation by defendants of plaintiff ’ s trade-mark, and for damages.

The facts appear in the opinion of the court. urged;—I. While a policy valuation made in good faith is conclusive upon the parties, a fraudulent misrepresentation resulting in an improper valuation avoids the policy (Haigh v. De La Cour, 3 Campb. 319 ; Protection Ins. Co. v. Hall, 15 B. Monr. 411, and other cases).

The complaint is, that, on August 30,1867, for good consideration, the defendant and others, associated in the business of marine insurance, under the name of the United States Lloyds, executed and delivered a policy of insurance, whereby they severally insured the plaintiff, on account of whom it might concern, in case of loss to be paid to him, to the amount of fifteen thousand dollars, on a voyage at and from New York to Vera Cruz, upon a cargo of military goods and…

An appeal from a' judgment entered for the plaintiffs against the defendants, The Orient Mutual Insurance Company, December 27, 1870, for eighteen thousand one hundred and forty-two dollars and thirty-six cents, upon a verdict and from an order denying a motion for a new trial.

Two of the original plaintiffs died after the action was begun. A year elapsed from their death. A supplemental complaint alleging such death, and that others named therein had succeeded to the interests of the deceased plaintiffs, was, without leave of the court first obtained therefor, served upon the defendants for the purpose of reviving the action in the .name of such successors in interest.

About February 1, 1873, the plaintiffs, who were -merchants residing in Philadelphia, and importers of jute butts, from Calcutta, employed Cabot, Bowles & Co., merchandise brokers, of the city of New York, to sell jute butts for them out of shipments to arrive for their account, on two vessels, the Jaypore and the Nagpore. On February 10, 1872, a contract was made by the brokers with the defendants.

The complaint in this action was as follows: The amended complaint of the plaintiff herein by Meade & Rockwell, his attorneys, respectfully shows to-this court: First.—That heretofore the defendants, Thorwald Heyerdahl, John GL Sibbald, Greorge B. Clachar, and David L. Schonberg, were doing business as copartners, at the city of New York, under the firm name and style of Heyerdahl, Schonberg & Company.

<p>t. EVIDENCE.</p> <p>1. Words in a letter.—Parol evidence as to meaning.</p> <p>а. The writer of a letter (not being a party to the action), can not be permitted to testify as to the sense in which he used a word occurring therein.</p> <p>б. The meaning the writer intended to express is immaterial, except as the letters themselves, in view of the surrounding circumstances known to both sides, disclose that intention.</p> <p>8. Entries in books op account.—Explanation.</p> <p>a. When a defendant on plaintiff’s examination, has stated that he has received certain payments from plaintiff (e. g. commissions), and he is asked to point out in his books any entries as to commissions, and he answers that there are no entries of commisions as such,</p> <p>IT IS ERROR</p> <p>to overrule a question put to him by his own counsel, asking him to look at plaintiff’s account in defendant’s books, and explain the way in which the account was kept, and how the commissions paid by the plaintiff appeared therein.</p>

The complaint charged the defendants with trespass, in taking and converting personal property belonging to the plaintiff. The property in question was taken by the sheriff, under an attachment. The conclusion of the referee— that it belonged to the plaintiff—is not disputed on this appeal. It was testified that the property in August, 1869, the date not being specified, was removed from the store of the plaintiff.

<p>I. CONVERSION. —EVIDENCE OF.</p> <p>1. What not sufficient.</p> <p>A., being the lessee of certain premises in which he had stored.' three thousand five hundred and twenty-four bottles of medicine, in paper boxes, and boxes of other kinds, let the premises, to B. and sold him one thousand of the bottles, and at his-request allowed the balance to remain on the premises. A fire occurred on the premises. An agent of A. testified that a short time after the fire he went to the premises and found that some of the boxes were smoked by the fire, but he could not discover that any of the medicine had been destroyed or injured; that he looked into two or three boxes and saw that bottles of medicine were in them; counted the boxes, and calculated that there were two thousand six hundred and thirty-four bottles of medicine; that he called a few days after, and found none of the medicine there. Another witness testified that he called at defendant’s place of business, and saw defendant, who showed him a large pile of boxes containing medicine; that he asked defendant if he had taken all the medicine that was in B.’s place; that defendant said he had, that he took it. under a mortgage made by B., that the mortgage covered the whole place, fixtures and everything; the witness further testified that he thought the boxes had the appearance of having been smoked or burned a little in a fire, but he could not identify the boxes as having come from B.’s premises, only as defendant said they had.</p> <p>insufficient, and that a complaint charging the defendant with wrongfully taking and carrying away the medicine and wrongfully withholding it, was properly dismissed.</p>

Exceptions ordered to be heard at general term The action was brought to recover damages for negligently causing the death of the plaintiff’s intestate husband. The evidence shows that the intestate was in the defendant’s employment, and that it was his duty to take charge of the chain across Fifty-second street, west of Fourth avenue, on which defendant’s railroad is laid.

<p>PLEADING.</p> <p>An answer to a complaint in an action to recover on promissory notes that alleges that the defendant has not sufficient information on which to form a belief as to whether or not the alleged, maker ever made the notes, and therefore defendant denies, &c., is insufficient, and is not a denial of the complaint in this respect.</p> <p>The defendant must answer that he has no knowledge nor information sufficient, &c. (Edwards ». Lent, 8 Sow. Pr. S. 28).</p> <p>But, in the case at bar, the defendant admitted the indorsement of the note by the corporation maker, and the indorsement was of a character that precludes the defense of denial of the making claimed by him.</p>

<p>Appeal from a judgment of the special term.</p>

thereto................. The report was in all things confirmed, and an order entered, directing the sureties on the bond to pay to the defendant the sum of six hundred and twenty-five dollars, and directing a judgment to be entered against the plaintiffs for the deficiency. The plaintiffs appealed from this order.

The action was to recover damages for the nonperformance by the defendant of the following contract: “ $20,000. “ LTew York, Aug. 28, 1872. “ I have bought of Levy & Borg, twenty thousand dollars of Alabama and Chattanooga, first mortgage, eight per cent, bonds indorsed by the State of Alabama,, numbers to run below four thousand, July, 1872, coupons on, at eighty and a half cents on the dollar, payable and deliverable in thirty days from date ‘flat,’ with interest at the…

The complaint alleged that the plaintiff, then residing-in the State of Ohio, was solicited by the defendants to ship and consign to them peaches ‘‘during the then peach season” to the city of Yew York.

Two appeals from judgments. The first entitled action was to compel the specific performance of a contract between the parties, wherein the plaintiffs agreed to sell and assign to the defendant, “ two indentures of leases made by the corporation of the city of New York of certain premises therein described.” The second entitled action was to cancel the agreement, and have the said leases declared void.

One Shields, the defendant’s intestate, bought the interest of his co-partner Brown in the property and effects of the firm of Brown & Shields, and agreed to pay Brown therefor three hundred and fifty dollars in cash, and the notes of the plaintiff for one thousand seven hundred and fifty dollars. There was an understanding between Shields and Brown, that Shields should transfer to the plaintiff a half interest in such property as a ■consideration for such notes.

The action was to recover a sum of money deposited, by the plaintiff with the defendant, as stakeholder, being the amount of a wager between the plaintiff and one McGinness, upon the result of a horse race. One of the defenses was, that before the commencement of the action, the defendant, with the assent, and by the direction of the plaintiff, paid the amount of the wager to McGinness.

The motion below was to strike out a reply. The complaint alleged : “That on and prior to June 20, 1874, the plaintiff was the lawful owner, and entitled to the immediate possession of two single-stone diamond ear-rings, and one single-stone diamond ring, of the value of three thousand five hundred dollars; that the defendant became possessed of said diamonds, and being so in possession thereof, refused to deliver them to the plaintiff on demand duly made therefor, and then…

<p>ACTION TO RECOVER POSSESSION OF PERSONAL PROPERTY AND DAMAGES FOR DETENTION.</p> <p>The measure of the plaintiff’s damages is the interest on the value-of the property while in the defendant’s possession, unless the proofs show that the use of the property was of greater value than such interest, during the time the plaintiff was deprived of the-same, or that the value of the property depreciated during that time.</p> <p>There must be some evidence in the case from which it appears-that the real damages for the detention were beyond the mere interest on the value, else the usual rule will prevail, that the measure of damages is the interest, &c.</p> <p>In the case at bar, the verdict was set aside for excessive damages, there being no evidence to take the case out of the general rule, &c.</p>

The action was brought under the act of March 16, 1870, to recover damages resulting from the death of the husband of the administratrix. At an assessment of damages at the trial term, December 18, 1873, a verdict was rendered in favor of the plaintiffs for three thousand dollars.

Appeal by the plaintiff, from an order denying a motion to set aside a verdict, on the ground of the defendant secretly making an improper communication to the jury.

<p>Motion to dismiss an appeal from an order.</p> <p>An order of reference was made on the 22nd of April, 1873, and on the following day a copy of it was served on the appellant. On the 14th of November, 1874, the notice of appeal from this order was served. In the meantime, the hearing before the referee had been proceeded with, a report made by the referee, and confirmed after overruling exceptions to it taken by the present appellant.</p> <p>The plaintiff move's to dismiss the appeal from the order of reference.</p>

Heard at the November general term, 1874, before all the judges, except Judge Freedman, from whose order the appeal was taken. The action was for the recovery of the sum of two thousand seven hundred dollars, the balance unpaid. of a loan from the plaintiff to the defendant of four-thousand five hundred dollars. The answer was a general denial, and a counterclaim of three hundred dollars.

The complaint alleges that the defendant, Ella 1ST. Hoy, is the executrix of James Hoy, deceased. That the Frostburgh Coal Company was a corporation created by the State of Maryland. That one Frost recovered a judgment in the courts of Maryland, against said company, upon which an -execution was issued and returned unsatisfied, and which judgment has been assigned to the plaintiff.

Appeal by defendant from a judgment, and from an order denying a motion for a new trial. This is one of four actions brought in this court by the plaintiff, to collect four policies of insurance for two thousand five hundred dollars each, by virtue of seven warrants of attachments against E. S. Candler, Jr.* the party insured.

„ The action was to recover upon a covenant of the defendant, contained in a lease of certain premises in this city, that he would pay “all taxes and croton water rates that might be imposed or assessed, or become a lien on- the premises at any time during the term, when due and payable.” It is then alleged that the taxes for the year 1872 and 1873, and the croton water rate of. 1873 have been imposed, and that the defendants .have neglected and refused to pay the same, and…

The action was to recover the possession of a lot of land in the city of New York. It was tried by a referee, whose findings of fact comprise all the statement, of facts necessary. He found that on October 3, 1851, one Oliver Johnston was the owner in fee of the premises. That on the same day a judgment was recovered against Johnston, upon which an execution was issued and returned wholly unsatisfied.

The action is brought by a foreign corporation ■created by a private aht of incorporation of the legislature of the State of Connecticut against the defendants as trustees of the American Seal Lock Company, a corporation created under the laws of this State upon the ground of their failure as such trustees to cause to •be filed the' reports required by law under the act for the formation of corporations for manufacturing, &c., passed February 17, 1848.

<p>Motions by'plaintiffs for leave to appeal to the court of appeals.</p>