Volume 7 — Abbott's New York Practice Reports

<p>Appeal.—Final Judgment.</p> <p>If, on a trial, whether by the court or by a referee, a decision or report is made in favor of one party, and a reference is ordered to take an accounting, which is necessary in order to ascertain the amount for which judgment is to be rendered, judgment cannot be entered until the accounting has been had, and every thing essential to the judgment has been ascertained.</p> <p>If the unsuccessful party wishes to appeal, he must wait until after the accounting has been had, and a final judgment thereon entered.</p> <p>Where, pending such accounting, the unsuccessful party procures judgment to be entered against himself by the clerk, and then appeals to the general term, his appeal should be dismissed.</p>

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

<p>Appeal.—Judgment of Reversal.</p> <p>If, on appeal to the general term from a judgment, rendered on a verdict of a jury or on a trial by the court or referees, is reversed upon the ground of error at the trial, the general term cannot render a judgment in favor of the appellant. A judgment in favor of the appellant in such case may, on motion, made at general term, be corrected so as simply to reverse the judgment below, and order a new trial.</p> <p>It seems, however, that an affirmative judgment for the appellant might be rendered where the facts have been duly found, and the only question which arises is, which party is entitled to judgment.</p>

<p>Injunction.—Action to Restrain Officers.—Board of Supervisors.</p> <p>It may be regarded as settled that in respect to wrongs and injuries affecting the public at large, whether actually committed or apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the State in its political character by the attorney-general, or some other officer authorized to act in its behalf; and, where a wrong .committed against the public also includes a private injury, that the latter may be prosecuted for at the suit of the party injured ; yet where there is no direct individual injury, no action can be maintained by a citizen on the ground that his interests as a member of the body politic have been disturbed.</p> <p>An injunction will not issue at the suit of an individual to prohibit the comptroller of the city of New York from paying funds which the board of supervisors are by law required to authorize him to pay, on the ground that the meeting at which such authority was attempted to be given was an illegal one, especially if it be not shown that he is in funds to pay.</p> <p>A supervisor, who, by the wrongful act of his associates is excluded from being present at a meeting of the board, cannot on that ground maintain an action to enjoin other officers from proceeding to fulfill authority conferred upon them by the proceedings of the board at such meeting. His remedy should be directly against the offending supervisors.</p>

<p>Demurrer to complaint.</p>

The complaint stated that the Hew York and Liverpool TI. S. Hail Steamship Company were, prior to January 28th, 1857, the owners of three steamers, called respectively the “Atlantic,” “ Baltic,” and “ Adriatic,” and of their tackle, furniture, &c.: that a tax of $16,000 upon the capital stock of said company was imposed for the years 1856 and 1857, making $32,000 in all: that said company was not, during either of said years, in the receipt of any profits, &c.: that the…

Motion to strike out parts of complaint as irrelevant. The action was for false imprisonment of the plaintiff by Sophia Beach, at the instigation of her counsel, Lewis Beach, the other defendant.

<p>Motion that plaintiff file security for costs.</p> <p>The facts appear in the opinion.</p>

The defendant was a resident of the State of Michigan, and this application was made by him for the issue of a commission in the action for the examination of himself and other nonresidents of this State on his own behalf.

<p>Arrest.—Form of Order.—Sufficiency of Affidavit.—Action to Recover Possession of Specific Personal Property.</p> <p>In an action to recover the possession of specific personal property, an order to hold the defendant to bail, on the ground that the property has been concealed, &c., to prevent its being taken (Code of Pro., § 179, subd. 3), need not specify any sum, but may require an undertaking for a delivery of the property, and payment of the amount to be recovered, as prescribed by section 211,†</p> <p>An arrest should not be granted in such an action, if the affidavit shows that before the commencement of the action the defendant had so disposed of the property that it was out of his power to deliver it.</p> <p>But the deposit of the property with a bailee is not necessarily a parting with the possession within this rule.</p>

This was a creditor’s action against G-. A. Keim, a judgment debtor, and his wife, and one Chamberlain, by which the plaintiff sought to reach real property, which the complaint alleged belonged to Keim, and which, by successive conveyances to Chamberlain, and by Chamberlain to Keim’s wife, had been transferred to her, in fraud of the plaintiff.1 The allegations of the complaint, as to the judgment on which the action was founded, were, “ that on the 4th day of May, 1855,…

The defendants in this action were non-residents, and the plaintiffs obtained an attachment against their property. The defendants appeared, and on giving the required undertaking, executed by two sureties, that the judgment which might be recovered against the defendant should be paid, obtained a discharge of the attachment, and a return of the property.

<p>Answer.—Defences.</p> <p>The fact that after the commencement of the action, the debt, to recover which it was brought, was attached in the hands of the defendant by creditors of the plaintiff by proceedings in another State, and that, such proceedings having been regularly conducted to judgment, the defendant paid over the fund therein, is a complete defence.</p> <p>Of the construction of an answer containing several defences.</p>

<p>Landlord and Tenant.—Destruction of Premises by Fire.—Remedy for Rent after Injury. Measure of Recovery.</p> <p>By the common law of England and of this «State, upon a lease of lands for a term of years, with an express agreement to pay a certain yearly rent, the rent is payable by the lessee to the end of the term, though the buildings upon the lands are destroyed, or the lands themselves are swept away by the elements.</p> <p>But if such lease be of certain rooms, parcel of a building, the lease is terminated by the destruction of the building, or by its injury to such an extent that it cannot, by repairs, be restored to answer the purposes for which it was erected, and to render rebuilding necessary.</p> <p>The distinction arises upon the construction of the leases affected by their subject-matters.</p> <p>In a lease of lands, the destruction of the buildings or of the lands does not re-invest the lessor with the right or interest demised.</p> <p>A demise of rooms, parcel of a building, is of a particular right in the land, but not of the land itself; and when the'building is destroyed, the particular right of'the lessee is thereby vested in the lessor.</p> <p>The act of 1860 was passed for the benefit of lessees, and confers upon them a right of election. It embraces only those cases in which by the common law the lessee would continue liable for the rent after the destruction of tiie buildings upon the demised lands.</p> <p>Upon these principles,—Held, in this case, that the injury to the building ended the lease, and that the lessor could recover on the lease only to the time of the fire; and for rent subsequent thereto, -while the lessee continued to occupy the premises to sell off his damaged goods, the remedy was for use and occupation, or on a special agreement.</p>

<p>Appeal from a judgment entered on the report of a referee.</p> <p>The facts are stated in the opinion.</p>

<p>Case.—Covenant to Pat Judgment.</p> <p>On appeal from a judgment entered upon the report of a referee, his finding upon questions of law cannot be reviewed except upon exceptions incorporated in the case.</p> <p>It seems, that one who covenants to pay the plaintiff all sums which should be recovered against G. H., and O. H. his wife, in a certain action then pending in, &c., is not liable to pay a judgment entered for a sum of money to be col. lected out of the separate estate of the wife only.</p>

The petitioner applied for a peremptory mandamus, to be directed to the Commissioners of Excise of Saratoga county, directing them to grant unto Gerardus C. Yan Demark a license to sell strong and spirituous liquors and wines, to be drank on his premises,—or, for a like writ to the said commissioners, directing them to entertain the application of the said Gerardus O. Yan Demark for a license; and, if he is entitled thereto, to grant the same.

Motion to set aside discontinuance. This action was brought by the plaintiffs against Charles Leuling and others for equitable relief to permit the plaintiffs to redeem steamships belonging to them from a lien under which the defendants were about to sell them, and, as was alleged, threatened to sell them together.

<p>Delivery of Deed.—Acceptance bt Attorney.— Authority of Attorney Examining Title.</p> <p>Although delivery of a deed to an agent may be effectual if it be absolutely ■ accepted by the agent, delivery to an attorney, who is employed by the grantee to examine the title, and for no other purpose, and who does not in fact assume to accept the deed, but holds it for the consideration of his client, is not an effective delivery, if the client subsequently declines to accept it.</p> <p>After the grantee in a conveyance has refused his consent to the delivery of it under such circumstances, neither he nor those claiming under him can assert the validity of the deed as so delivered, to cut off the lien oí an intermediate judgment.</p> <p>The office of a jury is to find facts upon conflicting evidence. If there is no dispute, and the proof is clear, it is the duty of the court to apply the law and pronounce judgment. And even where the evidence is not wholly on one side, yet if a verdict would be set aside as being against the clear weight of the evidence, the court should direct the verdict.</p> <p>Although the question whether there had been a delivery of a deed, is to some extent a question of “ intent,” it need not necessarily be submitted to a jury; and where the proof is such as to repel a presumption of any intention to deliver, it is proper for the court to withdraw the question from the jury.</p> <p>A question of “intent” is not so exclusively a question for the jury that the court cannot take it from them.</p> <p>Title made under a judgment which had been assigned is not affected by evidence that the assignment was for a small or inadequate consideration.</p>

<p>Motion to discharge receiver and dissolve injunction.</p> <p>This action was brought by Isidor Popper against Joseph Scheider and Samuel Strieker.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>Defenses.—Eviction.—Evidence of Intent to let for Illegal Purposes.</p> <p>The defendant, a lessee of a part of a building, surrendered possession, informing the landlord that he did so because the basement was occupied for purposes of prostitution, to which the landlord replied, “ If I could let the basement for anything else, for a respectable business, I would have done so; but I had to take what I can get, they are so far up.”—Held, that this was not of ’itself sufficient evidence that the landlord let the premises knowing that they were to be used for such purposes, within the rule requiring such knowledge to be shown in order to excuse the payment of rent on the ground of an eviction.</p>

<p>Habeas corpus to inquire into the imprisonment of Martin Leland.</p>

<p>Extradition.—Fugitive from other States.— Habeas Corpus.</p> <p>A requisition made by the governor of another State upon the governor of this State for the arrest and surrender of an accused person, is not of itself sufficient authority for such arrest and imprisonment Nor is the affidavit of an attorney, communicating information, received by telegraph, that the accused is charged in such other State with the commission of an offense against its laws. An authenticated copy of the charge or indictment should be presented.</p> <p>Where the person arrested in such case is brought before the court by habeas corpus, he will be discharged after sufficient time has been allowed for making a return to the writ, without waiting for the arrival of a proper warrant from the executive.*</p>

Motion to set aside summons, &c. This action was brought by Charles W. Pollard against the Union Pacific Railroad Company, John I. Blair, and others. The defendant, Blair, a resident of New Jersey, was served with summons in the action, while he was attending a court of this State as a witness in another case. He now moved to have the service set aside as irregular.

<p>Affiemative Relief.—Judgment against a Mabeied Woman.</p> <p>■—Plaintiff.—Refebenoe.</p> <p>In an action brought by a married woman, by her next friend, for specific performance of a contract of sale of her separate property, entered into with her by the defendant, the answer did not claim affirmative relief; but the referee to whom the cause was referred reported that the breach arose by the plaintiff’s default, and that the defendant was entitled to judgment for the recovery of a deposit paid by him, and for costs.</p> <p>JSeld, on the defendant’s motion for relief thereupon, 1. That the proper course was to refer it to the same referee to ascertain and report upon the facts stated in the moving papers, and to report a particular description of the plaintiff’s real estate, in order to a final decree.</p> <p>2, That the next friend should be required to show cause why he should not pay the defendant’s costs.</p> <p>Of the practice of referring causes equitable in their nature.</p>

<p>Mechanics’ lien.</p> <p>Application by the owner of premises against which liens had been filed, to terminate the same.</p>

<p>Justification of bail.</p> <p>The facts appear in the opinion.</p>

Motion to vacate an order striking out an answer. On the 9th of June the plaintiff caused a notice to be served on the defendant, requiring him to appear on the 15th, at 10 o’clock a. m., before J. S. Bosworth, a justice of this court, &c., and “ be examined as a witness, pursuant to the provisions of the Code of Procedure for such purpose.” The notice further stated, “ and if you refuse or neglect to attend, you will be liable to be punished as for a contempt of court, and…

Order to show cause why an order of arrest should not be vacated, and order to show cause why a verdict should not be set aside. The facts appear in the opinion.

Habeas corpus. This was an application on habeas corpus for the discharge of the petitioner, Francois Farez, who was held by the marshal, under a warrant issued under the extradition treaty between the United States and Switzerland, on a charge of forgery committed in Switzerland.

<p>Special Vebdiot.</p> <p>The requisites of a special verdict under the Code are the same that they were before.</p> <p>Certain facts in issue were admitted on the trial, and only one issue submitted, upon which the jury found “for the plaintiff.”</p> <p>JSeld, that the verdict was not to be deemed a special verdict, but taken with the admissions, was sufficient to support a judgment.</p>

<p>Motion to vacate proceedings for appointment of a receiver, to remove the receiver, and for an attachment against the plaintiff for contempt.</p> <p>The facts are stated in the opinion.</p>

<p>Habeas Corpus.—Commitment.—Attorney and Client.</p> <p>Upon habeas corpus to inquire into the detention of a person committed for contempt, only two questions can be examined: firstly, the jurisdiction of the tribunal by which the relator was committed; and secondly, the form of the commitment.</p> <p>Where the contempt charged is the refusal of a witness to answer a question, the commitment cannot be impeached on habeas corpus, merely for a supposed error in requiring the witness to answer an improper question.</p> <p>An attorney having papers of his client in his possession in court, which are required as evidence in the ease, is not privileged from producing them, at least for the purpose of identification.</p> <p>Form of a sufficient commitment for contempt.</p>

Beargument of appeal from decision of the special term. This was a foreclosure action tried at special term, and judgment ordered for plaintiff. The facts are stated in our report of that decision (4 Ante, 280). On appeal, it was affirmed (5 Ante, 316). Subsequently the court, on motion, ordered a reargument of the appeal.

<p>Cause of Action.—Warranty of Negotiable Paper. Prosecution of Action thrown on Seller.— Recovery over.—Judgment as Evidence.</p> <p>Plaintiff purchased a note from defendants, who were the payees therein, upon which he sued the makers, who set up the defense of usury. He served a copy of the summons, complaint, and answer in that action upon defendants in this action, with a request that they assume the prosecution of that action, which they neglected or refused to do. It was referred, and tried, the defendants being sworn as witnesses on behalf of plaintiff. The referee reported in favor of the makers, upon which report judgment was perfected. Plaintiff paid the costs recovered against him, also those of his own attorney, and served a copy of the report and judgment upon defendants, demanding the amount of the note, the costs recovered against him by the makers thereof, and the amount of statutory costs paid his own attorney.—Held,</p> <p>1. That there was an implied warranty by defendants, on the sale of the note, that there was no legal defense to an action upon it.</p> <p>2. That, having had notice of the defense interposed, and an opportunity to prosecute the action to judgment, they were estopped from showing, on the trial of the action upon such warranty, that the note was not in fact usurious.</p> <p>3. That a plaintiff may avail himself of the right to cast the burthen of an action upon his vendor, in the same manner as a defendant.</p> <p>4. That the judgment upon the report of the referee was admissible in evidence against these defendants, and was equally as conclusive upon them as if plaintiff had not consented to a reference of the action, but had tried the issues at the circuit before a jury.</p> <p>5. That plaintiff was entitled to recover the several items claimed.</p>

Demurrer to complaint. This action was brought by an individual plaintiff, describing himself as a resident, tax-payer, citizen, and creditor of the city of If ew York, against Joseph B. Varnum,… Held: and an appraisement made, within one month prior to the date of sale.

Demurrer to complaint. This action was brought by the National Park Bank of New York against the Ninth National Bank of New York, to recover back money paid by the plaintiffs to the defendants, on a draft which had been altered by forgery, and transmitted by the defendants to the plaintiffs for payment. The facts relied upon by the plaintiffs are briefly as follows : The National Park Bank is the New York correspondent of the Ridgely National Bank, of Springfield, Illinois.

<p>Appeal from an order overruling demurrer to complaint.</p> <p>This was an action arising out of the following facts, as alleged in the complaint.</p> <p>On the 25th of August, 1821, the marriage ceremony was solemnized in due form between the plaintiff, Eliza Ann Cropsey—then Eliza Ann Everett—and James Ridgeway, the defendant’s intestate. At the time of this marriage, the plaintiff believed that James_ Ridgeway was free to marry, and that they were lawfully married.</p> <p>In September of the same year, a few weeks after this marriage, a former wife of James Ridgeway, to whom he was married in 1812, and from whom he had separated in 1815, and who was still living, commenced proceedings in the then Court of Chancery of this State, against him, for a divorce, on the ground of adultery on his part, in contracting this second marriage, the marriage with the plaintiff. In that action she obained a decree.</p> <p>The plaintiff and James Ridgeway, now supposing that no impediment remained to their lawful union, the marriage ceremony was a second time solemnized between them in the year 1825, and they continued to live together until 1847, when Mr. Ridgeway died, leaving her and eight children surviving.</p> <p>Mr. Ridgeway was a carpenter and builder, and was worth, at the time of the first marriage, about $1000. By economy and good management, in which he was assisted by the plaintiff, who supposed herself to be his wife, and who labored with her own hands, in addition to her household duties, to procure the means tor household expenses, his means were largely increased, and he gradually accumulated a fortune, which amounted, at the time of his death, to more than $150,000.</p> <p>It appeared that Ridgeway had been married once before the marriage which had been dissolved by a decree of divorce, and that descendants of both of these marriages were living; and on his death they claimed the whole of his estate, as his only next of kin.</p> <p>The complaint alleged that the plaintiff’s services rendered thus while standing in the supposed relation of wife to Mr. Ridgeway, were worth to him $40,000, and demanded judgment for that sum.</p> <p>The defendant demurred, assigning, among other grounds, the following: “ That the complaint does not state facts sufficient to constitute a cause of action.”</p> <p>The issue upon the demurrer was tried at a special term in April, 1855, and in May a decision was rendered overruling the demurrer. The defendant appealed to the general term.</p>

This was- a creditor's action brought by Charles Cook, an individual banker, under his corporate name of the Bank of Havana, against G. 0. Wickham, who was his judgment debtor, and Martha Wickham, his wife, and certain others, who were transferrees of property belonging to Wickham. The plaintiff had recovered a judgment against the defendant, George 0. Wickham, for the sum of $5022.84, on the 8th day of January, 1852.

Demurrer to complaint. This action was brought by the Park National Bank of New York against the Fourth National Bank of New York, under circumstances precisely similar to those stated in reference to the preceding case of an action by the same plaintiff against the Ninth National Bank. The pleadings in both cases were in the same form. -, in support of the demurrer.

Submission of a controversy without action, under section 372 of the Code. Articles of association were entered into on the 5th day of August, 1851, between Henry J. Raymond, George Jones, and Edward B. Wesley, for the purpose of establishing and carrying on a daily newspaper, to be called the Hew York Daily Times, and a weekly newspaper, to be called the Weekly Times.

Motion to vacate preliminary injunction and other orders. This was an action brought by the plaintiff* James H. Ramsey, against Jay Gould, James Fisk, Jr., Frederick A. Lane, Abram Gould, M. R. Simons, George 0. Hall, Henry N. Smith, Charles G. Sisson, Henry N. Martin, James B. Bach, and the Erie Railway Company.

February. Motion to dissolve injunction. This was an action brought by Azariah 0. Flagg, the comptroller of the city of Hew York, as a tax-payer and corporator, to enjoin the execution of a contract—made between the defendant Lowber and the other defendants in this action, and the city of Hew York—for the sale to the latter of certain real estate. Lowber had brought an action against the city, upon that contract, to recover the purchase-money.

<p>Application to discharge an order of arrest.</p> <p>The facts appear in the opinion.</p>

The action was brought for the foreclosure of a mortgage made by the defendant Cassidy to the plaintiff Cunningham, in May, 1846. In August, 1848, John Quin obtained a judgment against Cassidy for $360.73, which became a lien on the mortgaged premises. On the 4th of September, 1848, Cassidy mortgaged the premises to Richard S. Williams, to secure the payment of $3500 in one year, with interest.

John A. Collier, one of the surviving executors of S. B. Munn, cited William H. Munn and others, heirs, &c., to answer his appeal from a decree of the surrogate of the city and county of New York, made July 7, 3866, in the matter of the final accounting of the surviving executors of the will of Stephen B. Munn, deceased. ■It appeared from the final account which Messrs.

<p>Cause of Action.—Variance.—Amendment.—Trial.</p> <p>The complaint alleged that the plaintiff employed the defendants, who were brokers, to purchase on credit certain stock, and as security on his part for the payment, deposited with them other stocks; that they falsely pretended that they had made the purchase, and he not making payment, pretended to resell the stock, and also sold, or pretended to have sold, the stock which he had deposited, to make up the pretended deficiency.</p> <p>Held, that under this complaint a recovery could not be had by the plaintiff upon proof that the defendants had actually made the purchase, but had after-wards converted to their own use the stock purchased. The variance between the cause of action for a fictitious purchase and sale, and a cause of action for a conversion, is material, and beyond the power of amendment.</p> <p>A judgment for the plaintiff upon such proof, under the pleadings, would be on the face of the record erroneous and void.</p> <p>It seems, that when on the trial of an action for specific relief, which from the frame of the complaint is properly triable by the court alone without a jury, it appears by the proofs that the only cause of action is one for damages, which would be properly triable by a jury, the court has no power without a consent of the parties waiving a jury, to render a judgment for damages.</p> <p>Of the effect of an admission as an estoppel.</p>

<p>Motion to strike out answer as sham.</p> <p>This action was brought by Emeline Morey against the Safe Deposit Company of New York.</p>

The action was brought by Almeda Fenn, as administratrix of the estate of Hobart Fenn, deceased. The deceased had been in partnership with the defendant Bolles in the manufacture of faucets, and the object of the action was to settle the partnership affairs. The plaintiff obtained a temporary injunction, and now moved to make it permanent, and for appointment of a receiver. •

<p>Execution issued without Leave.—Execution and Return.—Sheriff’s Omission to File. —Parties in, Foreclosure.— Redemption.</p> <p>An execution issued after the lapse of five years from the entry of judgment, without leave of court, is not void under the provisions of section 284 of the Code, but voidable only.</p> <p>The omission of the sheriff to file an execution, after failure to collect the amount, with his return indorsed thereon, within the proper time,— Held, to be a mere irregularity not affecting the substantial rights of the judgment creditor.</p> <p>Where a judgment debtor, subsequent to the docketing of the judgment, acquires title to real estate, and executes and delivers to his grantor a mortgage upon the premises, to secure a part of the purchase money, a foreclosure, by action, of such mortgage, is absolutely void as against the prior judgment creditor, unless he is made a party defendant in the action ; and a purchaser upon the sale acquires, as against such judgment creditor, if not made a party, only the right of a mortgagee in possession.</p> <p>The judgment creditor in such case may, notwithstanding the sale under the decree of foreclosure, sell the-interest of the judgment debtor in the premises under an execution issued upon his judgment, and a purchaser upon the latter sale, upon receipt of the sheriff’s deed, may bring an action against the first purchaser for the redemption of the premises, and will be allowed to redeem upon such terms as may be equitable, according to the circumstances of the case.</p>

On the 4th of March, 1858, Mr. Justice Ingraham granted an order for the examination of the defendant as a judgment debtor on supplementary proceedings. It was made returnable on the 14th of the same month, but plaintiff discovering that it was returnable on Sunday, had it altered to the 15th, and gave defendant verbal notice of the alteration. On the 15th the defendant was not present.

This was an action brought in the City Court of BroQklyn, against the sureties in an undertaking given to the plaintiff, in a former action brought by him against one Biebuyck.

<p>Motion to set aside an execution, and stay all proceedings on the judgment.</p> <p>The plaintiff recovered judgment in this action, arid thereupon agreed with the defendant to take his note in settlement. The plaintiff’s attorney then gave notice to the defendant that he claimed a lien upon the judgment for his services and disbursements, to the sum of $250, and that the note would not be received, but the judgment collected in full. He at the same time issued execution upon it.</p> <p>After both parties had notice of this claim of the plaintiff’s attorney they renewed their agreement respecting the settlement, the plaintiff claiming that he had a good defence to any claim of the attorney for costs and fees in the action, and the plaintiff directed the sheriff to withdraw the execution on payment of his fees.</p> <p>The sheriff refused to return the execution without first collecting upon it the sum of $250, claimed by the attorney.</p> <p>The defendant now moved to set aside the execution, or to stay all further proceedings thereon. The affidavits on behalf of the motion denied that the plaintiff was indebted to the attorney in any sum; the opposing affidavits claimed that he was, in the sum named. The amount taxed in his favor, as appeared by the judgment roll, was $120.28.</p> <p>It was held, at special term, that the attorney was entitled to a lien, and a reference was ordered, to ascertain the amount due him.</p> <p>The following opinion was rendered:</p> <p>Habéis, J.—The settlement, upon which the defendant now relies to defeat the execution, was made on the 28th of August. He had before that had notice of the lien claimed by the attorney. If, therefore, the attorney had a lien upon the judgment for his services, the defendant is not in a situation to claim protection on the ground that when he made the settlement he was ignorant of such claim.</p> <p>It was a well-settled doctrine, before the Code, that although costs were in form recovered by the prevailing party, and became a part of the judgment in his favor, yet the attorney was to be regarded as an equitable assignee to the extent of his costs, and his rights as such assignee would be protected. (See Williams a. Batterman, 4 Barb., 47, and cases cited.)</p> <p>Bor can I perceive that the doctrine has been changed by the Code. A reference to the first title of the chapter of the Revised Statutes, relating- to costs (2 Rev. Stats., 612), will show that costs, under the former system of proceedings, were always recovered as they are now, by the prevailing party in the action. The third title of the same chapter prescribed the fees of various officers of the court, including, among others, attorneys and counsellors. These fees, upon taxation, became a part of the costs recovered by the party. So now, certain allowances are made to the prevailing party, which are called costs. The rates of these allowances have been changed, but, as before, they are recovered by the party, and become a part of his judgment. The great change which the Code effected, in this respect, was the repeal of all statutes fixing the compensation of attorneys, solicitors, and counsellors, and leaving the amount open to contract between the parties in each particular case. The fee bill is no longer a criterion by which the amount to which the attorney is entitled can be determined.</p> <p>He is now entitled to receive, not the sum which, has been allowed to his client for .costs, but such sum as he has agreed to receive, or, in the absence of an express agreement, such sum as his services are worth.</p> <p>But in all this I can see no reason why the attorney should not have the benefit of the former doctrine,—that he is to be regarded as the equitable assignee of the judgment, to the extent of his cla/imfor services. The mode in which the extent of his services is ascertained is changed, but the grounds upon which the courts act in protecting that interest are unchanged. (See Sherwood a. The Buffalo and New York City Railroad Company, 12 How., 136; Sweet a. Bartlett, 4 Sandf, 661; Ward a. Wordsworth, 9 How., 16 ; 1 E. D. Smith, 598.) In the latter case, the question directly before the court was, whether the lien of the attorney for his services had been abolished by the Code ? The whole subject has received at the hands of Judge Daly a more complete and thorough examination than I have met elsewhere. The opinion itself is a fine specimen of juridical learning and sound argument. “ All that the Code has done,” says the learned judge, “ has been to abolish the fee bill, and take away all restraints upon attorneys making agreements with their clients for their services. It has left the attorney to agree with his client for a greater or less sum than is given to the party, by way of indemnity for his expenses; but I cannot see how this legislation can be regarded a's abolishing or affecting the attorney’s lien. He did not derive it from these statutes. It existed long before any fee. bill was enacted. ■ The right to a lien for services rendered is one thing, and the measure by which the value of these services is ascertained, is another. The latter has been the subject of statutory enactment, the former has not. The statute has not interfered with the right of lien, except to limit the extent of it; and when that limitation is removed by the repeal of all statutes regulating the fees of attorneys, the right of lien, upon the authority of adjudged cases, stands precisely as it stood before.”</p> <p>My conclusion in this case is, that Mr. Olney is entitled to a lien upon the judgment for the amount due him for services rendered in the prosecution of the suit, whether as attorney or counsel, and that notwithstanding the settlement between the parties, as the equitable assignee of the judgment to the extent of the amount due him, has a right to enforce payment by execution.</p> <p>Before making a final order upon the motion, and for the purpose of ascertaining the amount justly due to the attorney for his services as attorney and counsel in the action, I shall direct a reference to inquire and report upon that fact. An order will be entered, appointing Rufus H. King, Esq., a referee for that purpose, and directing that the further hearing of the motion stand over until the coining in of the report.</p> <p>The plaintiff refused to appear before the referee to submit the question, and the defendant appealed from the order of the special term to the general term.</p>

Motion to stay proceedings. The action in which these proceedings were taken was brought by The World Company, proprietors of a newspaper, against Edwin A. Brooks, a dealer in boots and shoes, to recover for advertising the business of defendant. Pending the action, the defendant filed a petition in bankruptcy, but did not apply for a stay of proceedings in the action. The plaintiffs’ claim was not proved in bankruptcy, but plaintiffs proceeded to judgment.

Motion to continue an injunction pendente lite. The defendant Eleonore Hernandez, as the landlord of the plaintiff William N. McIntyre, instituted a pro ceeding before one of the justices of the marine court, to dispossess the plaintiff of certain premises in the city of New York, for non-payment of a quarter’s rent, due February 1, 1869.

' Appeal from a judgment of the County Court of Kings county, affirming the judgment of a justice’s court. This action was brought in a justice’s court in the city of Brooklyn, to recover rent. The plaintiff had judgment, and the defendant appealed to the County Court of Kings county, where the judgment was affirmed. The defendant now appealed to the general term of the Supreme Court.

This action was by Benjamin F. Jervis and Richard J. Sherman against James M. Smith and Charles J. Townsend, assignees of Edward S. Rich in trust for the benefit of his creditors.

This action was brought by Bart M. Blank, against Charles S. Westcott, upon a money demand on contract, and the amount of the plaintiff’s claim was two hundred and forty-five dollars.

The action was brought in the Supreme Court in the first judicial district. Held: that as the mortgages had not been paid, they were merely substitutes for the liens, which were only additional or collateral security for the original debt or obligation ; and that as plaintiff had elected to proceed on the contract, he had a right to do so, but without prejudice to defendant Lent’s right or claim to be Subrogated…

This action was brought by John J. Macklin, the assignee of a claim made against the defendant by a passenger upon one' of its boats, for a valise lost or stolen from the passenger’s stateroom. The facts testified to upon the trial sufficiently appear from the opinion of the court. The cause was tried in June, 1868, beford Judge Brady.

The action was brought upon an alleged, special contract, which the complaint averred was entered into with the plaintiff by the defendants through James Furey, then street commissioner, on the 11th of August, 1854, whereby the plaintiff agreed to set the curb and gutter, and to flag a portion of Eighty-third-street (i. e., from the Third Avenue to Avenue A), in the city of ¡New York, in accordance with certain specifications annexed to the contract; and the defendants…

<p>Motion to set aside order for examination of judgment debtor, in proceedings supplementary to execution.</p> <p>On the- return of the order for the defendant’s examination, it appeared that the execution was returned unsatisfied, at the request of the plaintiff, and before the expiration of sixty days; and the defendant moved to set aside the order.</p>

<p>Tendee before Suit.—Payment into Court.—Answer Pleading Tendee.—Discontinuance •vitiiout Costs.—Waiver of Omission to Pay into Court.</p> <p>Although a summons has been delivered by plaintiff to the sheriff of the county of defendant’s residence, for service upon the defendant, yet, if the defendant tender to the plaintiff the amount of the demand in suit, before the actual service of the summons upon him by the sheriff, he may bring the money into court, and plead the tender as a tender before action commenced. The delivery of a summons to the sheriff is-the commencement of an action, only for the purpose of defeating the statute of limitations.</p> <p>Plaintiff’s attorney, receiving an answer of tender before suit, &c., waives the objection that the defendant has not brought the money into court, by going to trial upon the issue.</p> <p>If it appear in such case, that the money was tendered before suit, and was kept at all times in readiness, and it is actually paid into court upon the trial, the defendant may recover his costs.</p>

The plaintiff having obtained judgment against the defendants, issued execution, and subsequently obtained an order under section 294 of the Code for the examination of Mr. Andrew Y. Stout, the… Held: in his capacity as chamberlain of the city, moneys of the corporation to the amount of about $225,000, which were credited by him to the account of the city treasury.

Motion to continue a preliminary injunction. This action was brought by William Heath and others, who were partners in business, and members of the New York Gold Exchange, against John F. Under-hill, President of the Exchange, and others, the members of the Arbitration Committee of that association.

an attachment to issue against O. S. Williams and H. G. Everett, to collect the costs of the defendants, adjudged to be paid to them upon a dismissal of the complaint. The action was commenced by three plaintiffs, Conger, Barker, and Radclifif, on the 26th of April, 1854, on a demand belonging to the plaintiffs, in the proportions of one fourth to Conger, one half to Barker, and one fourth to Radcliff.

<p>Cause of Action.—Negligence Respecting Excavation.—Variance of Proof.—Recovery for Cause not Alleged.</p> <p>The plaintiff in this action alleged in his complaint, that the defendant caused excavations to be made on a lot and the sidewalk in front -.thereof, in the city of New York, and negligently left the excavation ■without guards, whereby the plaintiff, lawfully passing by, fell and was ■injured. On the trial it was proved that the defendant was the contractor for building an edifice at the place in question, but did not make the excavation, nor occupy or use any part of the excavation, but that .he had “put up a pile of bricks in the street, the effect of which was to .darken the way, and that in the darkness plaintiff fell into the excavation ; and the judge charged the jury that they were to determine .whether the defendant occupied or used the excavation, and if he did, whether he neglected to put up guards and lights.—Held, that a gen- . eral motion to dismiss the complaint at the conclusion of this evidence, ■was not sufficient to enable the defendant to raise, upon appeal, the ] ■ objection that the proof; and a verdict for the plaintiff thereon, were ■not within the scope of, or sustained by the pleadings.</p> <p>Upon.the facts proved in this case, the liability of the defendant did not depend upon his occupancy or possession of the excavation. .</p>

Stewart & Baylies, the plaintiff’s assignors, contracted with the defendants to grade the track of their road at certain prices, payable monthly, upon the estimate of the engineer. Hine estimates had been paid at the offices of R. & G. L. Schuyler,which offices were hired by the Messrs. Schuyler, and the defendants were charged with a portion of the rent, and had their office in one of the rooms thus hired.

<p>Conflicting Claims between Co-plaintiffs ok Co-defendants.</p> <p>A stockholder whose scrip has been stolen may maintain against the corporation and a person who holds the stolen scrip, an action to establish his right to it. The provision of section 2Í4—that the judgment may determine the rights of the parties on each side between themselves—is to be taken in connection with that of section 118, that any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination of the questions involved therein; and it is only in those cases and in the manner in which the conflicting claims of co-defendants could be settled in the action, according to the practice of the Court of Chancery, that they can be settled under the Code.</p> <p>In what cases this can be done, considered.</p>

The plaintiff in error was tried at a circuit court of the Supreme Court, holden for the city and county of Hew York, in the first judicial district, in June, 1858, on an indictment for the murder of one Anderson. The trial commenced on the seventh day of June, before the Hon.'William B. Weight, and terminated on the nineteenth day of the same month.

Demurrer to complaint. The action was brought by T. S. Nelson and J. S. Sturges, as trustees of an express trust. The complaint set forth a note made by the defendant to the order of the Atlas Mutual Insurance Company, and delivered to it by him. It further alleged, that that company were a corporation duly created; and that the plaintiffs had been constituted trustees of a special trust, by virtue of an instrument referred to as annexed to the complaint.

■Motion to dissolve an injunction. On the 26th of June, 1858, the plaintiff served on the defendants’ attorneys a notice stating “ that the plaintiff discontinues the above entitled action against the defendants therein, and hereby offers to pay them, the said defendants, their taxable costs which they have incurred in this action up to this date.” The notice was dated on the day it was served.

This action was brought by Ann Stoddard against Charles Denison, to recover damages for wrongfully selling personal property under a chattel mortgage. The plaintiff, to secure the payment of a sum o'f money on demand, gave to the defendant a mortgage upon certain personal property, mentioned and described in a schedule thereto annexed.

<p>Appeal from an order setting aside a judgment and execution.</p> <p>This action came before the court at general term, on an appeal by the plaintiff from an order made by Mr. Justice Wood-ruff, on the 8th of July, 1858, vacating a judgment entered in favor of the plaintiff against the defendant, under sections 382 and 883 of the Code. The order was made on the application .of H. F. Pohlman, a bona fide purchaser, from said defendant, of lands on which such judgment was an apparent lien, and which lands the plaintiff had caused to be advertised to be sold under an execution issued on such judgment. The statement and confession on which the judgment was entered, read as follows:</p> <p>Title of the Cause.</p> <p>I do hereby confess judgment in this cause in favor of Josiah F. Kendall for the sum of two thousand dollars, and authorize judgment to be entered therefor against me.</p> <p>This confession of judgment is for a debt justly due to the plaintiff arising upon the -following facts :</p> <p>That heretofore at the city of New York I made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note.</p> <p>And that I am justly indebted to the plaintiff thereupon, in the said sum of two thousand dollars.</p> <p>John Hodgihs.</p> <p>[ Verification.]</p> <p>Judgment was entered in this court on said statement, on the 5th of October, 1856, for $2000, with $5 costs, and a transcript of the judgment was filed, and the judgment was docketed in the office of the clerk of Queens county on the same day.</p> <p>The deed from the defendant and his wife to Pohlman is dated the 10th of October, 1856, and was recorded on the 28th of October, 1856, in Queens county; the real estate conveyed by it being situate in that county.</p> <p>Pohlman’s attorneys were employed by him to search the title of the property so conveyed, and for liens and incumbrances upon it; and they caused the clerk of Queens county to search for conveyances, mortgages, judgments, ánd other liens and charges upon the property. The clerk made a search, and certified the result; and by his certificate it appeared that no judgment against Hodgins, docketed in Queens county, was found. Pohlman believing the property to be free from any such encumbrance, and having no notice of facts calculated to excite a suspicion to the contrary, bought the real estate, and took a conveyance of it, subject to a mortgage upon it for §1000, and subject also to alease of the lots, for the price or sum of $2750. Pohlman paid to Hodgins $1750 in cash, and assumed the payment of the said mortgage as the balance of the purchase money. The plaintiff having caused an execution to be issued on said judgment, and the lands so bought by and conveyed to Pohlman to be advertised for sale, Pohlman, on affidavits showing the facts before stated, and on notice, moved for and obtained an order vacating the said judgment as to him, and as to the lands so conveyed to him, and setting aside the execution unconditionally, and an advertisement of a sale of said lands under said execution, and declaring the said lands to be freed and discharged of and from the ajrparent lien of said judgment, and of and from any and every and all proceedings whatsoever, under and by virtue of the same. From that order the plaintiff appealed'to the general term.</p> <p>II. D. la/paugh, for the appellant, insisted that none but judgment creditors could move to vacate the judgment; that the plaintiff, who was a mere grantee under a deed containing full covenants that the lands conveyed wnre free and clear of all incumbrances (except the mortgage and lease recited in it), was not in a position to make such a motion; and that the execution could not be set aside absolutely.</p>

The prisoner was indicted for the willful murder of L. Harris Hiscock, on June 4, 1867, and pleaded not guilty. The facts are sufficiently stated in the charge of the court to the jury;

<p>Appeal from an order made upon a motion to dissolve an injunction.</p>

<p>Service of Amended Complaint.</p> <p>Section 146 of the Code,—requiring an amended complaint to be served on the defendant—is to be construed by section 417,—requiring service of papers to be made on the attorney, if a party has an attorney;—and where a defendant has appeared by attorney, an amended complaint is to be served on the attorney, and not on the defendant personally.</p> <p>A judgment, entered as upon failure to answer an amended complaint, which was served on the defendant personally, after he had appeared by attorney, is irregular, and should be set aside on motion of the defendant.</p>

The defendant moved for an order that the plaintiff file security for costs, .on the ground that he resided at Haverstraw, Rockland county, in the State of Hew York. The motion was opposed on the ground that Haverstraw was within the jurisdiction of this court.

The action was brought in the Supreme Court, Kings county, to recover rent of certain premises in Brooklyn, occupied by the defendant as tenant. Prior to 1856 the premises had been owned by the plaintiff, but during that year one O. D. Blake foreclosed a mortgage which he held upon them. The foreclosure was by an action brought by him for that purpose in the county court of Kings county.

<p>Defence.—Aocobd and Satisfaction.—Tendee.</p> <p>To an action against the maker of a promissory note, he answered that the plaintiff, with other creditors, signed a composition deed, agreeing to exchange the notes they held against the defendant for other extended notes to be drawn by him; and it appeared on the trial that the defendant called on the plaintiff and offered him the new notes which the agreement provided for, but the plaintiff refused to receive them; but that he had not the new notes drawn at the time of the offer.</p> <p>geld, insufficient. To complete such defence, the party must plead and prove, not only tender of the new notes, but also aver a readiness at all times to perform his part of the agreement, and must bring the new notes thus tendered into court on the trial.</p>

<p>Appeals from two orders denying motions in supplementary proceedings.</p> <p>The facts are stated in the opinion of the court.</p>

In a foreclosiu’e action in which the plaintiff in the present action was the plaintiff, an,d the Same person defendant, the parties, on settling by payment before judgment, disagreed as to whether… Held: and rendered judgment accordingly; and the plaintiff appealed.

The defendant was a foreign corporation, and a warrant of attachment against its property was issued, under which the sheriff levied upon upwards of $9000 in money in the hands of the defendant’s agent. Before the time to answer expired, the suit was settled by the parties, and it was agreed that the attachment should be discharged, and an order of discontinuance entered upon payment of the costs by the defendants.

Motion by the district-attorney to transfer the case to the oyer and terminer. The defendant was indicted in the court of general sessions, on the 17th day of December, 1869, for the murder of one Albert D. Richardson. He was arraigned on the indictment, and pleaded not guilty. Subsequently, and on the 28th day of January, 1870, the court of general sessions on his motion entered an order, directing two several commissions to issue, to examine foreign witnesses in his behalf.

Motion to strike out an answer. The complaint, which was for divorce, and charged the defendant with adultery, was verified. The defendant served an answer denying the charges, without verification, and without notice of any reason for omitting it, and the plaintiff moved to strike out the answer for that reason.

This action was brought by John M. Clarissy against the Metropolitan Fire Department.

On the trial of this action the plaintiff had a verdict, and the defendant moved at a special term for a new trial. His motion was, on the 13th day of April, 1857, denied by the justice at special term.

<p>Appeal from an order.</p> <p>This action was brought by Daniel W. Tomlinson against Charles Gr. Miller.</p> <p>The order of the special term now appealed from required the' defendant to transfer certain stocks to the plaintiff.</p> <p>The complaint alleged that on or about the first day of April, 1861, one Aaron D. Patchin, of the one part, and the plaintiff and defendant, of the other part, made an agreement by which Patchin was to transfer and deliver to them one hundred and fifty thousand dollars of the capital stock of the Buffalo, Hew York & Erie Railroad Company, and they were to deliver to him fifteen of the first mortgage bonds of that company of one thousand dollars each. That it was agreed between the plaintiff and defendant that the defendant should contribute ten of the bonds, and have one hundred thousand dollars of the stock, and that the plaintiff should contribute five of the bonds, and have fifty thousand dollars of the stock ; that the defendant should attend to the making of the exchange with plaintiff, and should advance the five bonds for the plaintiff, which the plaintiff was to replace with like bonds.</p> <p>That the defendant made the exchange with Patchin pursuant to said agreements.</p> <p>That on July 8, 1862, the plaintiff tendered the five bonds to the defendant, and demanded the fifty thousand dollars of stock, which the defendant refused to deliver. The complaint contained an offer of the bonds.</p> <p>The answer denied the agreements as alleged in the complaint. It alleged an agreement between the defendant and Patchin for the exchange of one hundred and fifty thousand dollars of the stock of said company for fifteen of said first mortgage bonds, to which the plaintiff was not a party. It admitted that the defendant exchanged fifteen of said bonds with Patchin for one hundred and fifty thousand dollars of said stock.'</p> <p>The following questions were ordered to be, and were, tried by a jury, who answered each of them in the affirmative.</p> <p>First. Did the plaintiff and the defendant in this action, on or about April 1, 1861, make an agreement with Aaron D. Patchin, in and by which he agreed to sell to them one hundred and fifty thousand dollars of the capital stock of the Buffalo, Hew York & Erie Railroad Company, and they agree to pay him therefor fifteen of the first mortgage bonds of said company, of one thousand dollars each ?</p> <p>Second. Did the parties to this action agree that the defendant should contribute ten and the plaintiff five of the said first mortgage bonds, and that the defendant should, in the first instance, furnish the said bonds for himself and the plaintiff, and take two-thirds of the stock for himself and one-third for the plaintiff ?</p> <p>The further trial of the case proceeded before the court. The court found that the agreements found by the jury were simultaneously, and, in fact, verbally, made on April 23, 1861. That on May 2, 1861, the defendant made the exchange of bonds for stock with Patchin, pursuant to the agreements so found. That on July 8, 1862, the plaintiff demanded of the defendant the fifty thousand dollars of said stock, and offered him five of said bonds, from -which the coupons down to and including those falling due June, 1862, had been cut off, and that the defendant refused to deliver the stock to the plaintiff.</p> <p>The evidence showed that by the agreement of exchange, the coupons down to and including those payable on June 1, 1861, were to be cut off of the bonds, and that the defendant did cut them off before he delivered the bonds to Patchin.</p> <p>The other material facts are stated in the opinion.</p> <p>The court ordered judgment that the defend ant transfer, &c., to the plaintiff the fifty thousand dollars of stock, &c., upon the delivery of said five bonds, &c. The defendant appealed.</p>

<p>Demurrer to complaint, and motion for an injunction.</p> <p>The action was brought by the Mechanics’ Fire Insurance Company of New York, and a number of individuals, as plaintiffs against the People of the State, and John Jay and Charles E. Whitehead.</p> <p>The complaint, which stated that the action was brought by the plaintiffs on behalf of themselves and all others having similar interests in the subject-matter, and who desired to be made parties, alleged that the individual plaintiffs were stockholders in the corporation plaintiff, and were in the aggregate owners of more than two thirds of the stock : that the company was duly incorporated under the laws of the State, and commenced and continued business until 1st of December, 1855, when it was forbidden to continue business by an order of the Supreme Court; and that the individual defendants had been the counsel of the company, and one of them a stockholder and director. The complaint further set forth in detail the condition of the company at the time of the cessation of its business pursuant to the order, and alleged that it was doing a safe and lucrative business, and was prudently conducted, and in all respects solvent and sound. It then alleged that the .individual defendants, conspiring with divers persons unknown to the plaintiffs, procured the attorney-general of the State to take proceedings for the dissolution of the company; and that without any suit, but merely upon a petition verified by the assistant attorney-general, and which was not based upon any sworn or verified papers, the order forbidding the company to continue business was obtained : that the ground of the proceeding was, that the company did not possess the amount of capital required by the statute; but that the officers were never required or permitted to call on the stockholders to pay in any alleged deficiency, nor were the stockholders ever required to show cause why the business should not be closed up, except by the order referred to, which was addressed to the company, and which forbid the carrying on of the business in the mean time. The complaint then proceeded to set out subsequent proceedings in the matter up to the appointment of one of the individual defendants as receiver. It was further stated that proceedings were taken by some of the stockholders to set aside those proceedings, and that after a reference the attorney-general discontinued the proceedings.* The complaint further, and at considerable length, and in detail, charged fraud and collusion upon the individual defendants in procuring one of their number to be appointed receiver, and stated the damages sustained by the company at $50,000.</p> <p>The demand for judgment was, that the proceedings be declared illegal and void, and that the company be declared to be a corporation, and in case its capital was found insufficient, the deficiency should be ordered to be paid in, and that the receiver be ordered to return the property of the company to it, and that the company have judgment against the individual defendants for their damages; and that in the mean time they be restrained from interfering with the affairs of the company, or the receivership.</p> <p>I. April, 1858. Demurrer to complaint.</p> <p>The individual defendants severally demurred upon the following grounds:</p> <p>1. That the plaintiff, the Mechanics’ Fire Insurance Company, had not legal capacity to sue, in that it was dissolved on the 7th of December, 1855, by the Supreme Court.</p> <p>2. That there was another action pending between the same parties for the same cause, as appeared in the complaint.</p> <p>3. That there was a defect of parties plaintiffs in making the company a plaintiff, and a defect of parties defendant in making the People of the State of Mew York a party defendant.</p> <p>4. That several causes of action were improperly united, to wit: The claim for the revival of the company, the claim for a return of the property described in the complaint, and the claim for damages.</p> <p>5. That the complaint did not state facts sufficient for a cause of action.</p>

<p>Motion for judgment on the pleadings.</p> <p>The facts are stated in the opinion.</p>

I. October, 1858. Motion to strike out a counter-claim, from an answer. The action was brought to recover damages for an alleged conversion of certain bills of exchange.

Motion to punish as for contempt. The action in which these proceedings were taken was brought by Charles Gr. Patterson against Elisha Bloomer. After an injunction had been issued in this case, and the usual undertaking given (which the plaintiff did not sign), he discontinued. A reference was thereupon ordered to compute the defendant’s damages; The plaintiff had notice of and opposed the application, and also appeared on the reference, but filed no exceptions to the report.

<p>Motion to discharge a mechanic’s lien.</p> <p>It appeared that the plaintiff was the owner of premises No. 38 Broad-street, in the city of New York; that in August, 1865, he entered into a contract with the defendant Jones for the erection of a building on said lot; that said Jones made a sub-contract with one Jojme for the carpenter work ; that in order to carry out his said contract Joyce made parol agreements with the defendant Daly and others, in pursuance of which they performed labor and furnished materials for the erection of said building. The work having been subsequently abandoned by Joyce, Daley and the other defendants, in the beginning of the year 1866, filed liens ■ for the amounts due them respectively. Soon after, the owner, Mathews, commenced a proceeding in this court against the contractor, and all the lienors, to foreclose the liens. The matter was referred ; and the referee, in December, 1866, made his report in favor of Daley and the other lienors, since which time, it seemed, no further proceedings had been taken. No order of the court continuing any of the liens, except one, was ever obtained by any of the lienors.</p> <p>This motion was now made by the owner for an order directing the county clerk to discharge the liens of record.</p>

Motion, at the trial term, for an adjournment. This action was brought by the Brooklyn Oil Works against Daniel Brown and others. Upon the cause coming on for trial trial, the defend - ants moved for an adjournment, on account of the absence’of a witness.

<p>Pleading.—Liability oe Indorsee to Payee.</p> <p>A complaint by the payee of a note to order, seeking to charge as indorser or as garantor one who wrote his name upon the back of the note before its delivery to the payee, is bad on demurrer.*</p> <p>The case of Moore a. Gross (23 Barb., 534) disapproved.</p> <p>It seems, that the only way in which the payee of a note can make it available in his own hands, against an indorser, is to indorse it first without recourse, and then take the indorsement of the third party as the source of his title.</p>

. This was an action for chattels. It appeared that the plaintiff sold to the defendant, W. M. Foster, in August, 1854, a quantity of lumber, on the terms cash for freight, and his note for four months for the amount of the bill of lumber.

This action was brought upon a promissory note, which was made and indorsed at Norwich, Chenango county, N. Y., by. residents of that place; and it was in the words and figures following, viz.: Norwich, November 1, 1866. 1500. Five months from date I promise to .pay to the order of S. R. Perlee, at the Mystic Bank, Connecticut, one thousand five hundred dollars, for value received. (Signed) J. R. Wheeler, Jr. (Indorsed) S. R. Perlee, N. P. Wheeler, T. Milker.

<p>Appeal from an order setting aside a levy on execution.</p> <p>The facts are stated in the opinion.</p>

<p>Confirmation of the report of a referee.</p> <p>The facts are stated in the opinion.</p>

Indictments for violation of election laws. James Naughton, Mr. Buckley and others, were indicted by the grand jury in the county of Kings, for alleged frauds in the conduct of the elections in 1869. Mr. Justice Pbatt presided at the January term of the court of oyer and terminer, into which these cases had been removed from the court of sessions.

Motion to dismiss an appeal from a judgment of a district court dismissing a complaint. The facts are stated in the opinion of the court.

<p>Eeaudulent Purchase.—Concealment of Insolvency. .</p> <p>The defendant, who was accustomed frequently to purchase from the plaintiffs, for cash, bills of exchange for remittance to Europe in bis business, becoming insolvent, procured them to sell him bills to a large amount upon credit, concealing his insolvency, though making no direct false representations as to his condition, or the use to which he should put them; and he then sold these bills in the market.</p> <p>Held, that the circumstances being such as t.o show that he purchased the bills with intention to make such use of them, and knowing his inability to pay for them, the purchase was fraudulent, and that he was liable to arrest in an action for their value.</p>

<p>Attobney and Client.—Betainbb.—Sebvice.—Motion to</p> <p>VACATE JUDGrMENT.</p> <p>An attorney, being employed by hie client in the prosecution and defence of many suits, gave a voluntary appearance for him in a new suit brought against him upon a subject connected with suits then pending. About the time of</p> <p>serving this appearance, the attorney told him that he had appeared for him, and he expressed no dissent, hfo further steps were taken in the action for the space of five years, when the plaintiif served his complaint upon the attorney, who, deeming his authority to have lapsed, delivered it. to the defendant. The defendant took no notice, of the proceedings until six months after judgment entered against him on failure to answer, when, being disturbed by supplementary proceedings, he moved to set aside the summons and all subsequent proceedings.</p> <p>Sold, That the motion was properly denied. I. The attorney’s appearance was not unauthorized, but under such facts he might well assume a retainer.</p> <p>2. Such appearance being equivalent to a personal service, the judgment was regular.</p> <p>3. That the defendant’s delay in moving was such as to preclude the setting aside the judgment with leave to defend, there being no satisfactory excuse for the delay, and a merely formal affidavit of merits.</p>

<p>Attobney’s Compensation.—Statute of Ebauds.</p> <p>An assignee, for benefit of creditors, was requested by the preferred creditors to transfer the assigned property to them in payment of the preferred debts; and the attorney'who drew the assignment objecting that there would be nothing left wherewith to pay his charges, the creditors promised to pay them, but without ascertaining the amount, and the transfer was thereupon consummated.</p> <p>Held, that the promise was an original undertaking, and not void by the statute of frauds, because not in writing. The creditors who made it were liable to pay a reasonable bill to the attorney; and their liability was not at all affected by the liability of the assignee for the same" debt.</p>

I. July, 1858.—Motion to vacate order of arrest, on the ground of the insufficiency of the plaintiff’s affidavit. The action was brought by the plaintiff, as her Britannic Majesty’s principal secretary of state for the war department, against the defendant, who had been a military storekeeper under that government, and had come to this State from England ; and it sought to recover a large sum of money alleged to have been embezzled by him in his office.

Trial by the court. This action was brought by John Boardman and others against Thomas Grregan and others to reform a contract, and to enforce it specifically as thus reformed. The facts, so far as necessary to understand the opinion, are briefly these : In 1863, Boardman & Davis were dispossessed by their landlord, Mr. Livingston, of the Mansion Stables, in the city of New' York, which they held under a twen. ty-one-year lease from him.

<p>Costs.—Right to Allowance.—Attachment Suit.</p> <p>The plaintiff is not entitled, under section 309 of the Code (as amended, 1857?), to charge an allowance, on tender of debt and costs, made before judgment.*</p> <p>Appeal from an order made at chambers upon a question of costs. (See the decision reported, 5 Ante, 221.)</p>

Demurrer to complaint. The action was on a promissory note. The allegations of the complaint were in the following form : “ That on-, at-, the defendant made his promissory note, dated on the day last named; whereby, on demand, he promised to pay to the plaintiff or his order-dollars, for value received, and then and there delivered said note to the plaintiff.

<p>Question as to taxation of costs.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from a judgment.</p> <p>This action was brought against the defendant as indorser of a promissory note, dated December 15, 1855, made by J. J. Van Pelt, for $1808 90/100 payable five months after date, to the order of the defendant, and by him indorsed to the plaintiffs.</p> <p>The defence was: That the note was given at the city of Hew York to the plaintiffs, by the maker Van Pelt, in part payment for a raft of oak and pine timber, then afloat in the ¡North Biver, on the shore at Hoboken, ¡NT. J., and was indorsed by the defendant as surety for Van Pelt, for the purpose of securing payment of the price of the timber to the plaintiffs, and for no other consideration:</p> <p>That at the time of the sale, the plaintiffs exhibited to Van Pelt certificates of the inspection and measurement of a quantity of oak and pine timber, which stated the number of sticks inspected, and the measurement and descriptions thereof, and stated that there were in the timber so inspected 30,418 feet of first quality oalc, 5618 feet of refuse oak, 1240 feet of first quality pine, and 85 feet of refuse pine: that the plaintiffs then represented that those certificates were the certificates of the inspection of the raft of timber then offered for sale, and contained a correct statement thereof (with the exception of 21 sticks mentioned in the certificates, which were lost):</p> <p>That it was, at that time, the usage in the city of New York, among dealers in timber, to purchase and sell timber on the faith of similar inspection certificates; and by such usage, the seller of the timber is and was deemed to warrant that the timber sold should correspond with such inspection certificates in respect to the quantity, quality, description, and classification of the timber; and that in case of any variance between the inspection certificates and the timber delivered, the seller should be bound to make good to the purchaser the damage which he might sustain by reason of such variance: that Yan Pelt and the plaintiffs were both dealers in timber in said city, and had notice of such usage, and dealt in reference thereto in the sale and purchase of this raft of timber :</p> <p>That Yan Pelt, relying on these representations of the plaintiffs, and on the inspection certificates, and upon this usage, purchased the raft of timber at certain rates per foot for each description of timber; and for the purpose of ascertaining the quantity and different classes and descriptions of timber contained in the raft, reference was had to the inspection certificates, and the amount to be paid was computed according to such certificates:</p> <p>That the terms “ first quality oak” and “ refuse oak” were and are well known in the timber trade, and denoted different descriptions of" timber customarily bought and sold in the New York market and elsewhere by those designations:</p> <p>That the price of the said timber so computed amounted to $9043 80/100 : that Yan Pelt had paid on account thereof $7235^^-, leaving unpaid not exceeding $1808 80/100 the amount of the note in suit:</p> <p>That the raft of timber was after such purchase delivered to Yan Pelt, and he discovered after such delivery, and the defendant alleged the fact to be, that the inspection certificates did not contain the bue measurement of the different descriptions of timber, but were erroneous in the following particulars : that, in lien of 29,441 feet of first quality oak, there were not in the raft over 14,720 feet thereof; and, in lieu of there being in the raft 5523 feet of refuse oak, there were therein about 20,243 feet thereof:</p> <p>That, had the price of said timber been correctly computed, the same would not have amounted to over $4995t3q%.</p> <p>Wherefore the defendant alleged that the plaintiffs had been already overpaid for the timber so sold and delivered; that there was nothing due to the plaintiffs on the promissory note in suit; and that the plaintiffs had given no consideration therefor.</p> <p>The action came on for trial on the 3d day of May, 1858, before Mr. Justice Slosson and a jury.</p> <p>The defendants put in evidence a bill in the words and figures following:</p> <p>"Mew York, 12th December, 1855.</p> <p>Messrs. J. J. Yam Pelt and Dam’l Toeeamoe,</p> <p>To Gillespie, Dean & Co. For raft of timber at Brown’s Basin, Hoboken, 29,441</p> <p>feet first quality oak, at 27½c.........$8,096.27</p> <p>5523 feet second quality oak, at 13⅓c...... 759.41</p> <p>1325 feet pine, at 12½c............165.62</p> <p>9,021.30</p> <p>■J. inspection at 5 p. c. for M.......... 22.68</p> <p>$9,053.98</p> <p> [Duplicate] </p> <p>“ Payable by J. J. Van Pelt’s note, indorsed by Daniel Torrance, at 3, 3-J, 4, 4jr, and 5 mo’s.</p> <p>Receiv’d payment as annexed,</p> <p>Gillespie, Dean & Co.</p> <p>Per K G. M. Clibboen.”</p> <p>The note in suit was admitted by the plaintiffs’ counsel to be one of the notes given in payment of this bill; and it was also admitted that the other notes given therefor had been duly paid.</p> <p>Books admitted by the plaintiffs’ counsel “ to be the books delivered with the said bill of timber, as containing the specification of the contents of the raft,” were also put in evidence by the defendant.</p> <p>They were arranged in columns of figures, and at the end of each book was a summary or certificate in the following form :</p> <p>“West Trot, July 13, 1855.</p> <p>122 sticks first quality oak..........7153 ft.</p> <p>26 “ refuse “ ......... 1820 “</p> <p>1 “ first quality pine.........59 “</p> <p>149 9032 ft.</p> <p>Charges, $11.28.</p> <p>Henry H. Smith, Inspector.”</p> <p>The total of first quality oak mentioned in the three was 29,441 feet.</p> <p>The defendant then proved the mode of marking timber on inspection, and that the timber in question was marked upon that plan: that the “ first instalment of this raft, being about one third of the whole, was brought over to Van Pelt’s yard about February, 1856, and the sawing of it was then commenced.”</p> <p>The defendants’ counsel then put to the witness the following question: “ How did the sticks marked as first quality turn oiit ?”</p> <p>The question was objected to on the ground that no warranty of quality had been proved; and that no express warranty was alleged in the answer, but only “ a warranty by usage.”</p> <p>The defendants’ counsel asked leave to amend the answer by averring an express warranty.</p> <p>The court denied the motion to amend, on the ground that the papers given in evidence were not any evidence of an express warranty; and also sustained the objection to the question put to the witness. The defendants’ counsel excepted to each of these rulings.</p> <p>The defendants’ counsel then inquired of the witness: “ How did the sticks compare, as to quality of first or second class, with the specifications in the memorandum books now produced, containing inspector’s certificates, &c., as to what were the qualities of the timber ?”</p> <p>This question being also objected to, the objection was sustained, and the defendants’ counsel excepted.</p> <p>“ The defendants’ counsel thereupon offered to prove that the timber fell short of first quality 14,000 feet, and that the difference in value was, at 13f cts. a foot, more than the amount of the note</p> <p>“ Also, to prove that the inspector’s books are, by usage as pleaded in the answer, delivered as evidence of quality and quantity; and that the seller is, by usage, deemed.to warrant that they correspond</p> <p>“ And that the timber was in a .raft, so that the logs could not be turned over without taking the raft to pieces.”</p> <p>On the plaintiffs’ objection the court excluded the evidence, and overruled each offer; and to each ruling the defendants excepted.</p> <p>The jury, under the direction of the court, found a verdict for the plaintiffs for the amount of the note with interest.</p> <p>Prom the judgment entered on the verdict, the defendants appealed to the general term.</p>

Motion by plaintiffs in partition that the purchasers be compelled to take title ; and motion by one of the purchasers to be discharged from his purchase.