Volume 7 — Bosworth's New York Superior Court Reports

Appeal by the plaintiff from an order denying a motion for a* new trial. The action was tried October 23, 185*7, before Mr. Justice Slosson and a jury, when a verdict was rendered in favor of the plaintiff for six cents damages. The action was brought to recover damages for an injury to the plaintiff on the 28th of February, 1854. He was a carman, and on that day went to the defendants’ depot in 12th street, New York, to get a load of straw boards there piled up in the depot.

Appeal by the plaintiff from a judgment ordered at a trial had June 10,1859, before Mr. Justice Pierrepont and a jury. This action is brought against the defendants as common carriers, to recover the value of a box of jewelry, alleged to have been delivered to the defendants at Brooklyn, Nov. *7, 1855, in a trunk to be carried by them to Buffalo, and there delivered to the plaintiff.

.Appeal by plaintiff from an order granting defendant’s motion for a new trial. This suit was brought about the 28th of December, 1857, to recover of the defendant the amount of two notes, one of which was for the sum of $350 and made by one Réné Masson, and payable the 18th of June, 1854; the other was made by one Lorenzo Salvi, was for the sum of $655.25, and due April 1, 1855.

This is an appeal by the defendants from a judgment against them, rendered November 28, 1859, on a trial had before Bosworth, Ch. J. This suit was brought September 4, 1855, to recover from the defendants the sum of $35,603.74, and interest thereon from December 4, 1854, which sum the plaintiffs on that day paid to the defendants-, in pursuance of á decision of the Board of State Auditors of the State of Michigan, to the effect that the defendants had a claim against that…

Appeal by the plaintiff from a judgment against him, and from an order denying a motion made by him for a new trial. The action was commenced Nov. 30, 1848, and tried Jan. 19, 1859, before Mr. Justice Woodruff and. a jury.

Appeal by the defendant, from a judgment entered on the report of George W. Stevens, Esq., as referee. This action was commenced the latter part of January, 1859. The printed case contains the. summons, complaint, reply, order of reference, the referee’s report of his findings of fact and conclusions of law, (dated December 24, 1859,) the defendant’s exceptions, the judgment entered on the report, and the notice of appeal. It does not contain any evidence given on the trial.

Appeal, by the defendant, from a judgment against him, rendered April 20, 1859, on a trial had at special term, before Mr. Justice Slosson, without a jury.

Appeal by the defendants from a jiidgment against them, and from an order denying a motion made by them for a new trial. The action was tried before Bosworth, Gh. J., and a jury, on the 16th of November, 1858. This action is based on the allegation that the death of Gilbert Sanford was caused by the wrongful act and negligence of the defendants, and it is brought by H. Sanford, his administrator, to recover damages therefor.

This case comes before the court on questions of law arising at the trial, and there ordered to be first heard at the general term. It was tried on the 23d of June, 1859, before Mr. Justice Slosson and a jury.

Appeal, by the defendant, from a judgment against him, rendered on a trial had on the third day of June, I860, before Mr. Justice Pierrepont, without a jury.

Appeal by the defendant from a judgment against him rendered January 14, 1854, for $2,303.25, on a trial before Mr. Justice Hoffman, without a jury.

Appeal by the defendant, Wilbur, from a judgment against him, rendered on a trial had June 21, 1859, before Mr. Justice Hoffman, without… Held: that a general objection to a series of letters offered in evidence is properly overruled, if any one of the series is competent for any purpose; and that on a review of the trial, it cannot be objected that the judge should have limited the effect of such letters as'evidence, to the particular purpose for which they or any one of…

Appeal, by the defendants, from a judgment entered on the report of Alvin C. Bradley, Esq., as referee, in favor of the plaintiff, for $18,701.32. This action was brought to recover for plumbing work done by the plaintiff for John. La Farge (subsequently deceased), upon a very large hotel in the city of New York, in the course of its construction. The building was destroyed by fire just as it was completed. The issues in the case were tried before a referee.

Appeal by the defendants from a judgment against them entered on a verdict rendered on a trial had before Mr. Justice Pierrepont, and a jury, January 17, 1860.

This case comes before the court on questions of law arising at the trial, and there ordered to be first heard at the general term. The action was tried February 7, 1860, before Mr. Justice Woodruff and a jury, when the complaint was dismissed. The substance of the complaint is, that in February, 1852, one Joseph Shotwell was the charterer from the owners of the barque Golden Era, then lying in the port of New York, and about to sail on a voyage to Panama.

Appeal by John T. Daly and William H. Daly, the defendants, from a judgment at special term, substantially ordering the defendants to' desist from the use of the words “ Club House,” as a prefix to designate gin sold by them. The plaintiffs are William S. Corwin and Albert Webb.

This is a case agreed upon by the parties, and submitted under the 372d section of the Code. William Osborn, of the city of New York, died, after having made, published and declared his last will and testament, dated October 7, 1841. The provisions of the will are as follows, viz : “ First, I direct all my lawful debts and funeral expenses to be paid.

The plaintiff, Mary Du Bois, is one of the children of the late Richard Ray, deceased.

o This action was brought by the plaintiff to recover from the defendants, as owners of the schooner “William B. Marsh,” for services, and also for moneys paid out for their benefit. He had been mate of the vessel until March, 1856 ; down to which date, one of the part owners, the defendant Decker, was the captain or master. On and after that date, the plaintiff was employed and sailed the vessel as master.

In this action, a new trial was ordered by the general term, on the 30th of January, 1858, for reasons stated in the opinion of the court. (Reported 2 Bosw. 374.) It was brought to trial accordingly, on the 9th of February, 1859, before Boswobth, Chief Justice, and a jury. The action was brought to recover damages sustained by the plaintiffs, by two collisions between their stages, or omnibusses, and a car of the defendants.

Exceptions ordered at the trial to be heard, in the first instance, at general term. The action is brought to recover the price of goods alleged to have been sold, at the city of New «York, by the plaintiffs to the defendants, on the 5th day of February, 1857, on a credit of eight months, at the price and of the value of $237.11; for which sum, with interest from the 5th of October, 1858, the plaintiffs demand judgment.

Appeal, by the defendant, from a judgment for the plaintiff, on the verdict of a jury ; and also, an appeal from an order at special term, denying a motion for a new trial. The action was tried on the 20th day of October, 1859, before Mr. Justice Slosson and a jury.

Exceptions ordered at the trial to be first' heard at the general term, and the entry of judgment in the meantime to be suspended. Held: by assignment from Johnson, a lease, as security for paying the cost of several buildings which Atkins had erected for Johnson, on the demised premises, and on which about $5,000 was due to Atkins.

<p>1. The master of a vessel, who signs a bill of lading by which he acknowledges the receipt on hoard, of goods, of a designated kind and a specified quantity, and agrees to deliver the same to the shipper or his assigns, on payment of freight, at a specified rate per ton, is bound to deliver to one purchasing the goods in transitu and taking from the shipper, an assignment of the bill of lading, in good faith, and relying thereon, goods of the kind so designated, and the specified quantity thereof.</p> <p>2. An acceptance of goods of the designated kind, but less than the specified quantity thereof, after discovering that there are more goods of one designated kind and less of another on board than the bill of lading calls for, but the same aggregate quantity in all, does not absolve the master from the liability contracted by the bill of lading, nor impose upon such an assignee of it a duty to take more of one kind or accept less of another, than the bill of lading specifies.</p> <p>3. Where, in such a case, after a part delivery, the master refused to make a further delivery, unless the assignee would accept a delivery of all the goods on board as a performance of the carrier’s contract, which the assignee declined to do, and the master thereupon sued the assignee and recovered judgment for the whole freight; issued execution thereon, and caused the goods remaining on board to be levied on as the defendant’s property, and to be removed and stored, and they vpre subsequently sold by the dspositary to satisfy his claim for storage, and at such sale they were purchased by such assignee—the master thereby loses his lien on the goods so levied oil for freight; and the assignee obtaining possession as such a purchaser, does not obtain a delivery under the bill of lading, and is not liable for the freight of such goods—they having been so bought, in ignorance of any claim or lien thereon in favor of the master for freight.</p> <p>4. That judgment, having been reversed, is no evidence of a delivery and acceptance of all the goods called for by the bill of lading.</p> <p>6. In an action by an assignee of the master’s claim for freight, where the assignment is made after apart delivery of the cargo, and a refusal to deliver the residue of it; the assignee of the bill of lading, may deduct from the amount of the freight payable upon the goods delivered, the value of the goods not delivered pursuant to the contract contained in the bill of lading.</p>

Justice Hoffman, a trial by jury having been waived by consent of the parties. The action is on a policy of insurance issued by the defendants, whereby they insured the plaintiff, against loss or damage by fire, to the amount of $10,000.

<p>1. A motion on a case for a new trial, cannot be made, as a matter of right, after judgment perfected.</p> <p>2. In a case of conflicting testimony, neither party is entitled to an instruction to the jury founded on the assumption that the testimony of either of the witnesses is to be treated as accurate.</p> <p>3. A party's right to instructions, is limited to undisputed facts; or to a hypothetical statement of facts which it is left to the jury to determine upon the evidence.</p>

<p>1. In a suit against the accommodation payee and indorser of a promissoi-y note, it is prima facie a defense, that the plaintiff, at the request of the makers of the note, sold another note made by them, and also indorsed by the defendant for their accommodation, for the purpose of paying, and realized enough from such sale to pay the amount owing upon the note in suit.</p> <p>2. It is no answer to such defense, that the defendant has been sued as indorser of such sepond note, by the purchaser thereof, and obtained a verdict, and that the plaintiff thereafter received back such note and refunded to the purchaser thereof, the amount paid by him therefor; there being nothing in the pleadings or proofs which estops the defendant from insisting that the plaintiff refunded such money voluntarily, and it not appearing that it was not voluntarily refunded.</p>

<p>1. To authorize the master of a vessel, being in a foreign-port, to make a sale of her which will be valid and vest a title in the purchaser, there must be such a necessity for the sale, in view of the expenditure necessary to put the^ship in a condition to bring home her cargo, and the means of making needful repairs, that no person of prudent and sound mind could doubt that a sale is the only way of preserving for the owners, or insurers, any part of her value.</p> <p>2. It is not enough that the master acted in good faith, if a necessity for the sale be not shown.</p> <p>3. Where there is conflicting evidence upon that question, and it is withdrawn from the jury, and a verdict taken subject to the opinion of the court, at general term, a new trial will he ordered.</p> <p>4. It is irregular to take a verdict, subject to the opinion of the court at general term, where the case presents questions of fact, to be ascertained from contradictory or uncertain evidence.</p>

This is an appeal by the plaintiff from a judgment entered in favor of the defendants upon the report of a referee. The action was originally commenced against Alvah Mann and James Raymond; and the plaintiff, by his complaint, claimed to recover of the defendants jointly for work hy him done’, and materials furnished toward the erection of the Broadway theatre in the city of New York. The claim was to recover what the work and materials were reasonably worth.

<p>1. A bond (from the defendants to the plaintiffs) with a condition that if the plaintiffs shall pay a specific sum of money as therein designated, the defendants will “ indemnify and save harmless, the plaintiffs, from all actions and suits, both in law and in equity, and from all loss, cost, and damage, by reason of the payment of said sum of money as aforesaid,” is an indemnity against actual damage only.</p> <p>2. A suit against the plaintiffs by a third person to recover the same moneys and judgment therein, and payment thereof, no notice of the pendency of such suit having been given to the defendants, do not per se establish prima facie, a right of action, against the defendants, on such bond.</p> <p>3. A judgment, in such a case, only proves remipsam, as against the indemnitors. It is not even prima facie evidence against them, of the facts purportifig to be established by it.</p>

This case comes before the court on an appeal by the defendants from a judgment in favor of the plaintiff, entered on a verdict rendered on a trial had before Mr. Justice Slosson, and a jury, on the 28th of October, 1851. The appeal presents only questions of law, and these arise on exceptions taken at the trial, to the refusal of the judge to charge in conformity with two several requests then made by the defendants.

<p>Exceptions ordered at the trial, to be heard in the first instance, at general term.</p> <p>This action was brought to recover the sum of $301.25, and interest thereon, alleged to be due to the plaintiffs, on the following grounds, viz: one hundred and forty-six shares of the capital stock of the plaintiffs, stood in the tiame of the defendant. Certificates for the whole number in different parcels, had been issued to him, and the plaintiffs had his receipts therefor, signed by him. One of those certificates being for forty-six shares, was held by the Knickerbocker Bank, as security for the payment of the defendant’s note, under an assignment executed by him. The assignment and certificate were as follows :</p> <p>“ Exhibit C.</p> <p>“Power of attorney, with certificate annexed thereto.</p> <p>“ Know all men by these presents, that I, John W. Howe, for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer unto , forty-six shares of the St.</p> <p>Nicholas Insurance company’s capital stock, standing in my name on the books of the said insurance company, and do hereby constitute and appoint my true and</p> <p>lawful attorney irrevocable for me and in my name and stead, but to his use, to sell, assign, transfer, and set over, all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes, shall lawfully do by virtue hereof.</p> <p>“ In witness whereof, I have hereunto set my hand and seal the 14th day of August, one thousand eight hundred and fifty-two.</p> <p>“ JOHN W. HOWE, [l. s.]</p> <p>“ Sealed and delivered in ? the presence of $</p> <p>“ St. Nicholas Insurance Company, ? Of the city of New Tork. )</p> <p>“ No. *71. 48 shares.</p> <p>“ This certifies, that John W. Howe entitled to forty-six (46) shares of twenty-five dollars each, in the capital stock of the St. Nicholas Insurance company, transferable on the books' of said company only by the said John W. Howe, or his attorney, on surrender of this certificate.</p> <p>“ In witness whereof, the. president and secretary have hereto subscribed • their names this twenty-fourth day of August, 1852.</p> <p>“ H. HOPPER MOTT, Pres’t.</p> <p>“Chas. 0. Richardson, Secretary.”</p> <p>The Knickerbocker Bank became insolvent, a receiver was appointed; the receiver took possession of the pro-* perty, and among other, of the defendant’s note and the assignment of stock held as security, and -brought suit on the note, (which was originally for $2,000, but payments had been made thereon,) and recovered judgment for $690.52, besides costs.</p> <p>The receiver also sold the forty-six shares of stock, and delivered to the purchaser the certificate and assignment, and the latter presented the same to the plaintiffs and required them to allow a transfer on their books to his name. Upon examination, it appeared that transfers had already been made by the defendant in person, or by attorney, so that only sixteen shares stood in his name, (such transfers having, in fact, been made without a return of the certificate, for forty-six shares, which, as was known to the plaintiffs’ president, were held by the Knickerbocker Bank as security for the defendant’s note.) The whole amount of stock which, by the charter, the plaintiffs were at liberty to issue, having at that time been issued to bona fide holders, the plaintiffs consented to pay, and did pay to the purchaser, for the deficiency, (30 shares,) what he had paid therefor, $301.25, and he surrendered the certificate and re'ceived a transfer and certificate for the 16 shares, which, to that time, remained in the defendant’s name.</p> <p>The defendant was then called on by the plaintiffs to indemnify them. He at first denied that he had held so many shares as appeared to his credit, and that he had transferred so many as appeared to his debit; but after examination, his various receipts for certificates and his transfers by himself or attorney being seen, he promised the plaintiffs to pay to them the $301.25 which they had so paid. He also afterwards promised to give the plaintiffs his note therefor; but he having failed either to give his note or pay, this suit was brought to recover upon allegations of all the material facts thus detailed.</p> <p>The defendant insisted and gave testimony to show, that he consented, prior to the organization of the plaintiffs, to take 80 shares of stock only; but that M. H. Mott, who was active in organizing the company and procuring subscriptions, and who, after the organization, became the plaintiffs’ president, informed him after such organization, that “ he had taken the liberty of putting some more shares in his (the defendant’s) name;” and said, that “he would take care of it for the defendant;” to which the defendant replied, that “he had no objections, provided it was so arranged that he (defendant) should not be called upon io pay for any more stock.”, After this, Mott called on the defendant with some blank powers of attorney, and stated that he “ had a chance to work off the stock in such lots as he might have opportunity;” and being asked if it was for the surplus, (i. e., the shares exceeding the 80 shares,) he said yes, and the defendant then signed the powers of attorney ; and afterwards Mott told him he had sold some of the stock which had been put down to him, and asked him to signa “receipt” on the transfer book, which he did.</p> <p>The defendant testified, that he first signed an assignment with power and delivered it, with a certificate for the 80 shares he had taken to the Knickerbocker Bank, as security for his note for $2,000 ; and it was not distinctly shown by whose negotiation the assignment of the 46 shares was substituted ; but the certificate for 80 shares was surrendered, and a receipt signed by Howe for the 46 shares, Avas produced by the plaintiffs, and he executed the assignment thereof above set forth.</p> <p>The defendant testified, that he had only sold and transferred for his own account and benefit, 40 shares; so that it was to be inferred that the other transfers were made under the blank powers of attorney which he had given to Mott, by persons whose names were inserted therein by Mott.</p> <p>But on the settlement by the defendant of his indebtedness to the Knickerbocker Bank, the receiver credited him with the proceeds of the 46 shares, sold as above stated. The defendant accepted the credit, and paid the balance remaining due in satisfaction of the judgment against him.</p> <p>Mott was president of the plaintiffs from their organization until after the transfers in question were made, by which the defendant’s stock was reduced to 16 shares ; and the defendant was a director of the plaintiffs, and also of the Knickerbocker Bank.</p> <p>The plaintiffs are a corporation organized under the “ Act to provide for the incorporation of insurance companies,” passed April 10, 1849, Laws of 1849, chap. 308, page 441.</p> <p>The action was tried on the 1th of December, 1859, before Mr. Justice Pierrepont and a jury, and upon the facts in substance, above recited, and some others stated in the opinion of the court at general term, the judge, on the trial, decided that no cause of action had been proved by the plaintiffs, and ordered judgment of non-suit, to which the plaintiffs excepted; and he thereupon directed that the exceptions be heard, in the first instance, at the general term, and that judgment be in the meantime suspended.</p> <p>The defendants now moved for judgment in'pursuance of the order so made, and the plaintiffs, insisting that the ruling was erroneous, demanded a new trial.</p>

<p>1. In an action against the defendant to recover rent of premises occupied by a third person, where evidence has been given of a tonversation, on a specified day between the landlord and defendant, tending to establish a hiring by the defendant, and an agreement that such third person might occupy, and the defendant would pay the rent, it is error to exclude evidence of other cotemporaneous conversations between the landlord and defendant on the same subject.</p> <p>2. Such evidence cannot be excluded, merely because the conversations and verbal agreement offered to be proved were not had and made on the precise day on which, it is stated, the conversation already proved was had.</p>

Appeal by the defendant, James B. Taylor, from a judgment recovered against him as the indorser, and Charles St. John, as the acceptor of a bill of exchange, which, with its indorsements,.is as follows, viz: $2,643.13 Robbins fy Lawrence Co'. Winbsor, Vt., June 21, 1856.

<p>1. The facts, that real estate was conveyed to a married woman, October 10, 1849, and that the consideration therefor was paid by the husband, that a judgment was recovered against the husband, May 27,1847, for $144.84, and that in October, 1851, another judgment for $514.51 was recovered against the husband for a debt contracted in 1847, do not, of themselves and alone, justify the conclusion that such conveyance is void as against a person becoming a creditor of the husband in February, 1859.</p> <p>2. By Statute, (§ 4 of title 3, chap. 7, part 2, R. S.,) the question of fraudulent intent, in all cases arising under it, is one of fact and not of law, and no conveyance shall be adjudged fraudulent as against creditors, * * .solely on the ground that it was not founded on a valuable consideration.</p> <p>3. By sections 51 and 52 (1 R. S. 728), it is declared that, where a grant is made to one person for a valuable consideration paid by another, the title shall vest in the person named as alienee in the deed, subject only to tlio qualification that the deed shall be presumed fraudulent as against those who are at that time creditors of the person paying the consideration, and if a fraudulent intent bo not disproved, a trust shall result in favor of such or editors, “to the extent that may be necessary to satisfy their just demands.”</p> <p>4. When, in addition to proof that the husband paid the consideration for the deed, and was at the time indebted, other facts are proved for the purpose of showing that the conveyance was procured and consideration paid with an actual intent to defraud—as that improvements were subsequently made on the premises, and the payments therefor were made by the husband, it is error to exclude proof that such improvements were paid for by moneys raised by mortgaging the property, and that the wife delivered the moneys to the husband to be so paid and applied by" him, on her account and as her agent.</p> <p>5. The fact that the husband, executed such mortgage with the wife, does not estop her from giving such evidence.</p> <p>’ 6. The Statutes.in relation to the property of married women, passed in 1848 and 1849, are not material to such a case. They do not affect the question, whether the deed to the wife was, or was not fraudulent.</p> <p>7. Where the wife is admitted as a witness in her own behalf against the objection of the plaintiff that she is an incompetent witness, and is permitted to testify, and evidence of material facts offered to be given by her is excluded on the ground that it is immaterial, a judgment against her will he reversed.</p> <p>8. In such a case, the question whether she was a competent witness will not be considered; but, for all the purposes of the appeal, the decision admitting her as competent, will be treated as correct.</p>

<p>1. Where a defendant, hy a valid written guaranty, undertakes, unconditionally, to pay a sum loaned on the security thereof to a third person, on his failure to pay within a stipulated time from the date of the guaranty, and after thirty days’ notice of the principal’s default, it is not essential to a right of action that payment was demanded of the principal.</p> <p>2. It is enough that the principal failed to pay, and that the defendant was notified of the default thirty days before suit brought.</p> <p>3. Where the complaint, in an action on such a guaranty, alleges a loan on the day of its date, to the person and of the amount thereby authorized and on the security of such guaranty, non-payment of it by the principal and due and proper notice of such failure to the defendant more than thirty days before suit brought, and the answer denies none of these allegations, except by averring that the only notice given óf such default, and the only demand of payment made of the defendant, are contained in a written notice served on him, which he sets forth, and which states that a note made by said borrower on the day of the date of said guaranty, and for the alleged amount payable to the plaintiff at the time stipulated hy the guaranty, and “ secured by him” (the defendant,) is protested for non-payment, and that the plaintiff looks to him for payment thereof, and by also averring that when said notice was served, his guaranty was shown to him, and he was asked if the signature to it was his, to which he assented, and replied “ that he did not owe the plaintiff anything;” such answer does not raise a material issue, as it does not allege that the defendant did not understand the notice so served, when served, as a notice of the non-payment of the sum alleged, (and by not being denied,) admitted to have been loaned on the faith and security of said guaranty, and on the day of its date.</p> <p>4. The indebtedness of the plaintiff to the defendant's principal, in a sum equal to or greater than the sum loaned, cannot he set-off, or availed of as a counter-claim, by such guarantor in an action against him, the principal not being alleged to be insolvent.</p> <p>6. In a suit by a plaintiff, with which the defendant has contracted as being a corporate body, the plaintiff cannot be required to prove the fact of its incorporation, merely because the defendant states in his answer that he “ is informed and believes” the plaintiff is not a corporation.</p> <p>6. On an appeal from a judgment rendered against a defendant on account of the frivolousness of his answer, the question is, whether the judgment is right on the merits of the case made by the pleadings, and not whether the answer is frivolous.</p>

This action was commenced by James S. Sandford and others, acting executors, &c.-, of Edward Sandford, deceased, to foreclose a mortgage executed to them as such executors, by the defendant Hester Ann R. Travers, December 13,1855,. to secure the price agreed to be paid by her tó them, for the mortgaged premises, according to the condition of a bond executed by her and the defendant, James Travers.

<p>1. Where a person eniploys another to do a piece of work, and the one so employed does it by his own workmen, using his .own discretion as to the manner of doing it, having exclusive control of the matter, and a third person is injured while the work is in progress, by the careless manner in which it is done, the contractor and his servants guilty of the negligence are alone liable for the injury.</p> <p>2. It makes no difference, in sucha case, that the work done consists in altering a public street. When the work to be done cannot itself be dangerous to others, unless it becomes so by the dangerous or unskillful manner of executing it, and is done by one contracting to do it, and having exclusive control of the men employed, and injury results from such unskillfulness, the remote principal is not liable. The liability is confined to the persons guilty of the negligence, and to their principal.</p>

<p>1. The defendants, an Illinois railroad corporation, intending to construct their road by borrowing money on their bonds, to be repaid out of a sale of their lands, issued proposals in London, in 1852, for a loan of $5,000,000, which stated this purpose, and that the corporation “ will create, notwithstanding, a share capital equivalent in amount to the sum raised on bonds,” * * and that “ it is proposed to give the privilege to subscribers to the loan, * * to become shareholders therein for one-half of that subscription;” * * that a banker’s receipt will he given in payment of the first deposit on the bonds, which will be exchanged for the provisional certificates (i. e. certificates entitling the holders to bonds with" coupons annexed, when the installments were all paid,) as soon as they can be obtained from America, and at the same time a further provisional certificate, entitling the bearer, in addition, to fifty per cent, on the amount of his subscription to the bonds, in the capital stock of the company, will be delivered to him,” and that “ the provisional certificates will be exchanged for scrip shares on payment of the last installment on the bonds.”</p> <p>The plaintiff made subscriptions to the amount of $250,000; paid the first installment in London, and by arrangement, the others in New York, the last one in January, 1853 (it not being payable by the terms of the loan until Octo- * her 2, 1854). He was furnished with the just number of provisional certificates, dated August 16,1852, each of which states that “ the hearer hereof will be entitled, on and after the 1st of October next, to scrip certificates ” (for one-half of the amount of the bonds referred to) in the company’s capital stock of $17,000,000 on presentation hereof,” “provided all the installments on the subscriptions for the bonds, * * shall then have been fully paid up.” At the foot thereof was the following, viz: “N. B. The exchange of the provisional certificates for the scrip certificates, is limited to 1st January, 185 .”</p> <p>On the 15th of March, 1854, defendants' board gave notice that its books would be open to January 1,1855, for subscriptions under the certificates, by publishing it in two newspapers in New York and Boston, and mailing a copy of it to the plaintiff, who did not receive it.</p> <p>On the 22d of January, 1857, the plaintiff presented his provisional certificates, (calling for 975 shares of stock,) demanded scrip shares to that amount, and offered to pay all installments and interest which had been called in on the stock. The company refused tó issue the stock to him, and thereupon he brought this suit to recover damages. Held, that the agreement, created by the proposals and acceptance of them, and by subscribing and paying the subscriptions made, was not illegal, on the ground that the subscribers acquired thereby the right to elect to take stock at any future time, without any limit to the time of exercising such election, the true construction not conferring that right.</p> <p>2. The only sense in which the provisional certificates are conditional is, that they require payment of all the installments as a condition to the right to demand stock.</p> <p>3. That condition having been fully performed, the right to demand and receive the stock continues until it has been terminated by a tender of performance by the company, and a demand of payment of any assessments then duly made, and a refusal of the subscriber to accept and pay, or by some, other act to which he is a party.</p> <p>"4. The right of the subscriber to the shares in the capital stock specified in the certificates, is subject to the duty and obligation on his part to pay the amount duly assessed thereon by the defendants’ directors.</p> <p>6. The measure of damages is the difference between the market value of the stock, at the time the demand for it was made, and the amount of the installments previously called in, and interest on such installments, with interest on such difference from the time of the demand to the day of the verdict.</p>

<p>1. Where, on the trial of an action by one of several partners who had withdrawn from the firm, against the other partners, to recover the value of plaintiff’s interest in the assets, on the 2d of April, 1856, a witness for the plaintiff (also one of the partners) testifies to his then estimate of the value of such assets in the latter part of 1855, and that he sold his interest to the defendants in November, 1855, the defendants have a.right, on the cross-examination of such witness, to prove by him for what sum he so sold such interest.</p> <p>2. The rejection of such evidence, under such circumstances, is error, for which judgment against the defendants should be reversed.</p>

Appeal by the plaintiffs from an order denying a motion made by them for a new trial. This is an action to recover damages for the wrongful conversion, by the defendants, of four certain bills of exchange alleged to be the property of the plaintiff.

Exceptions ordered, at the trial had February 15, 1858, before Mr. Justice Woodruff, and a jury, to be first heard at general term. The plaintiffs are John Wilmot, William Gooderham, William P. Howland, and James G. Worts.

Appeal by the plaintiffs from a judgment against them. The action was tried before Bosworth, Ch. J., and a jury, on the 15th of June, 1860. The suit is brought to recover the damages sustained by the plaintiffs, by reason of an overflow of Croton water on the morning of the 6th of August, 1851. The plaintiffs occupied the cellar, basement and first floor of the premises 26 and 28 Park place, and 21 and 23 Barclay street, the same building running through to both streets. Wm.

<p>Appeal by the plaintiff from a judgment, and from an order, denying a motion made by the plaintiff for a new trial. This action was brought in November, 1858, on the allegations, that the plaintiff, in the early part of 1858, consigned to the defendants a specific quantity of wool, to be sold for and on account of the plaintiff for cash; that the defendants received and sold the wool; but paid only $2,000 of the proceeds to the plaintiff, and refuse to pay the balance; the complaint prays judgment for the residue of the proceeds, which; including interest, the jury found to be $5,553.5*7.</p> <p>The defence relied on is, that B. A. Sweet owned the wool; that it had been purchased for him in Wisconsin by one M. W. Sherwood, and with Sweet’s money, on an agreement with Sherwood to forward it to Sweet at Albany; that instead of doing so, Sherwood transferred it to the plaintiff as security for antecedent advances made with notice of the rights of Sweet; that Sweet notified the defendants that the wool was his, and demanded that the proceeds of it be paid to him; and that they had in part paid to him such proceeds, except the $2,000, which they had paid to the plaintiff.</p> <p>The defendants, to show that the wool was Sweet’s, and that the plaintiffs took it under circumstances giving them no right to it, as against him, called as a witness the said M. W. Sherwood.</p> <p>On his being sworn, it was proved that he was, then, in the custody of the sheriff of Saratoga county, on an execution against his body, issued on a judgment recovered against him by said Sweet, in the Supreme Court of this State, on the 14th day of February, 1860, for $4,334.43 damages, besides costs. That said Sherwood was so produced as a witness under a habeas corpus ad testificandum.</p> <p>A duly certified copy of the judgment record, in the suit of Sweet v. Sherwood, was put in evidence. “The defendants’ counsel objected to the admission of the record in evidence, on the ground that it was not duly authenticated, and that the judgment should be proved by the original roll on file, or by an exemplified copy. The objection was overruled, and the paper admitted; to which decision the defendants’ counsel excepted.”</p> <p>The summons in that action states that in case of a default to answer, the plaintiff will take judgment against you (Sherwood) for $3,923.20, with interest from the 14th day of July, 1858, besides costs.</p> <p>The complaint (which was verified on the 7th day of September, 1858), states that prior to the 9th of June, 1858, Sweet “employed Sherwood” as his agent to purchase 20,000 pounds of wool for “Sweet in the State of Wisconsin,” and forward the same to “Sweet at Albany;” Sweet agreeing to pay to Sherwood either one-half of the profits made on the sale of the said wool, or one cent per pound commission for “ Sherwood’s services,” as he, the said “ Sweet, might elect.”</p> <p>That for that purpose, Sweet, between the 9th of June and the 14th of July, 1858, furnished and advanced to Sherwood $6,000, and also 105 wool sacks, of the value of $52.50. That with a portion of said moneys, Sherwood purchased and forwarded to the -said Sweet, thirty-four bales of wool, containing 7,041 pounds, purchased for, as the “said Sweet” is informed and believes, and amounting in value tó the sum of $2,112.30." That he also returned 34 of the wool sacks, of the value of $17.</p> <p>That with the remainder of the moneys, so furnished by “Sweet” to Sherwood, Sherwood purchased wool in his own name, and sold and assigned the same, together with the remainder of said wool sacks, to other parties; that he bps refused and still refuses to deliver the last mentioned wool to Sweet, or to furnish and deliver the wool purchased with the moneys advanced by Sweet, and also refused to refund or return the moneys so advanced and furnished “by said Sweet,” after deducting therefrom the amount thereof expended in the purchase of the wool delivered by Sherwood to Sweet, or to render any account thereof to Sweet.</p> <p>It alleges a demand by Sweet upon Sherwood, of the moneys not expended in the purchase of the wool delivered by the said “Sherwood to Sweet,” and an account thereof; and that Sweet “has also demanded the wool purchased therewith, but has been unable to obtain the said moneys or an account thereof, or the wool purchased therewith;” and prays judgment “for the sum of $3,923.20, with inte-' rest from the 14th of July, "1858, with costs of this action. The defendant put in an answer; verified November, 1858.</p> <p>The action was referred to, and tried before Hon. George Gould, as referee. His report, dated February 9, 1860, finds upon the pleadings and evidence, that the facts, substantially as stated in the complaint, are true; and states, in conclusion, that “ there can be no doubt that the plaintiff is entitled to recover the money advanced, less the proceeds of the wool received, with interest from the time of last advance, July 11, 1858.</p> <p>This amount is. ........................... $3,923 20</p> <p>With interest to December 28,1859 (one year,</p> <p>five months, fourteen days),______________ 411 23</p> <p>Making, in all,.................... $4,334 43</p> <p>“ For which sum the plaintiff should have judgment.”</p> <p>GEO. GOULD, Sole Referee.</p> <p>The defendants in this suit, in order to show that the wool in question was the property of Sweet, and that they were justifiable in paying the proceeds arising from the sale of it to him as such owner, after he had given notice of his title, and demanded such proceeds, offered to prove the facts stated in the complaint in the suit of Sweet v. Sherwood; being the allegations of fact contained in the second and third defences of the answer herein.</p> <p>Boswo'rth, Oh. J., before whom the action was tried, “ decided that the facts thus proved constituted a bar to the defence set up in the answer, and precluded the defendants from proving such defence; and that no evidence could be offered under it. To which decision the counsel for the defendants duly excepted.”</p> <p>The plaintiff had a verdict for $5,553.51. The defendants moved, on the judge’s minutes, for a new trial. The motion was denied, for reasons stated in the opinion following, viz.:</p> <p>Bosworth, Ch. J. —It will be seen, on examining the complaint in the suit of Sweet v. Sherwood, that Sweet’s whole claim is —</p> <p>(1) For cash advances,___________________ $6,000 00</p> <p>(2) For (105) sacks furnished,.............. 52 50</p> <p>Total,....................^...... $6,052 50</p> <p>He credits Sherwood for wool delivered, ______________________ $2,112 30</p> <p>For 34 sacks returned, _ _ „ _ ....... IT 00</p> <p>- 2,129 30</p> <p>The complaint prays judgment for......... $3,923 20</p> <p>with interest from July 14, 1858.</p> <p>The summons states that, in case of a failure to answer, judgment will be taken for that sum and costs. A summons in that form is proper only “ in an action arising on contract for the recovery of money only.” (Code, § 129, sub. 1.)</p> <p>The complaint sets forth the contract between Sweet and Sherwood, and alleges, as a breach of it, the refusal of Sherwood to deliver the wool purchased, as well as his refusal to refund the money or account for it. By the suit which he brought he elected to proceed on the contract, and claim a return of the money advanced, with interest thereon. He cannot, on the same facts, have a judgment against Sherwood for the amount of money furnished, and interest, and also for the value of the property bought with such money.</p> <p>By bringing a suit upon the contract, and claiming and recovering, as part of the damages arising from a breach of it, 'the moneys advanced with interest, he repudiates the use which Sherwood made of the money as one which was unauthorized, and absolutely waives all claim to property in the wool bought with it. After such a recovery, he could not maintain trover against Sherwood for converting the wool.</p> <p>Such a transaction is in principle like that between vendor and vendee, where the latter by fraud induces the former to sell and deliver goods on credit. In such a case, if the vendor, with knowledge of the fraud, sue the vendee upon the contract of sale and recover judgment, he cannot, in a subsequent action based on the fraud, pursue the goods or their proceeds, either in the hands of such vendee or of a third person. (Lloyd v. Brewster et al., 4 Paige R. 537)</p> <p>It seem.s to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estop Sweet from claiming property in the wool, bought with the moneys for which such judgment was recovered. All causes of action, based on the transaction, are merged in the judgment recovered. . '</p> <p>In addition to this difficulty, which seems to be insuperable, Sweet has so far executed the judgment, that he has Sherwood in custody, under an execution against his body, issued on such judgment. This is a satisfaction of the judgment in such sense, that, while the imprisonment lasts, no proceeding can be taken against his property to obtain payment.</p> <p>The judgment on which he is imprisoned will not be set off against any other judgment in his favor. (Cooper v. Bigalow, 1 Cow. R. 57.) A creditor’s bill will not lie on such a judgment to reach his equitable estate. (Stilwell v. Van Epps, 1 Paige R. 615.) Nor will an action lie against the sureties in a bond given to stay the issuing of an execution ninety days, although conditioned to pay the damages and costs, with interest, before or at the expiration of ninety days. (Sunderland v. Loder, 5 Wend. R. 58.)</p> <p>A consent that the debtor go at large is an absolute discharge of the judgment. (9 Cow. R. 138.)</p> <p>I think there is a marked distinction between a case like this, and an owner of a chattel suing one person and recovering against him in trover for converting it, and subsequently suing another person for a separate and distinct conversion of the same property.</p> <p>In this State it is held, that a judgment against one, and his imprisonment, without actual satisfaction, is no bar to a subsequent action against the other. (Osterhout v. Roberts, 8 Cow. R. 43.)</p> <p>The rule in England is otherwise; and it has recently been held there, as it was held in Brown v. Wotton (Cro. Jac. 73), that a recovery in trover for a permanent conversion, vests title in the defendant, by relation from the time of the conversion. (Buckland v. Johnson, 26 Eng. L. & Eq. R. 328.)</p> <p>This is not the case of an owner, suing a second party for converting his property, after having obtained judgment and execution against another party for a separate and distinct conversion of the same property.</p> <p>In this case, after Sherwood had sold and disposed of the wool, Sweet, with knowledge of the fact, sued him to recover back the money advanced to purchase it, and recovered a judgment for such moneys, with interest.</p> <p>And Beale and Adams who received the wool from the plaintiff (to whom Sherwood had transferred it), to sell on the plaintiff’s account, instead of paying the proceeds to the plaintiff, paid them to Sweet, and insist that the wool was his, and that they had a right to pay the proceeds to him, he having demanded them as owner.</p> <p>If the judgment recovered by Sweet against Sherwood estops the former from claiming ownership of the wool as against the. latter, it also estops him from making such claim as against the plaintiff.</p> <p>Beale and Adams’ defense is based solely on the right of Sweet to claim the proceeds of the wool as against the plaintiff; and if he cannot sustain such a claim, they have no defense.</p> <p>I think Sweet’s rights are merged in his judgment, and the remedies provided by law to obtain payment of it; that in contemplation of law, it is to be treated as satisfied while the imprisonment of Sherwood is continued, and that the motion for a new trial should be denied.</p> <p>Motion denied with $10 costs.</p> <p>From the order denying the motion, and from the judgment entered on the verdict, this appeal is taken.</p>

<p>1. An injunction can only be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded, and where, also, it appears by affidavit that sufficient grounds exist therefor.</p> <p>2. The affidavit may be so drawn, by a reference to the complaint, as to incorporate its allegations in and make them a part of it. When so drawn, and sufficient to authorize, and an injunction is granted thereon, it is granted on an affidavit. It is a misuse of words to say, in such a case, that it is granted on a verified complaint, though the affidavit be merely a verification of the complaint, in the form prescribed by the Code.</p> <p>3. A defendant may move to vacate it either upon the complaint and affidavits on which it was granted, or upon affidavits on his part, with or without answer.</p> <p>4. If he move upon papers other than those upon which it was granted, it is indispensable that he move on affidavits.</p> <p>5. If he has put in answer, so verified, whether by the usual verification, or by a separate formal affidavit annexed to, and by reference incorporating the answer and its allegations into the affidavit, so as to make them part of the affidavit, and he moves upon the answer, thus verified, to dissolve the injunction, he moves upon affidavit, and the plaintiff may oppose the motion by affidavits in addition, to those on which the injunction was granted.</p> <p>6. An injunction cannot be granted on an unverified complaint; and one issued upon sufficient grounds cannot be vacated by an unverified answer.</p> <p>7. The denials and allegations contained in it, in order to enable a defendant to move upon it to dissolve an injunction, must be so authenticated by a positive oath, as to make them in substance and effect part of the affidavit which authenticates them.</p> <p>8. When the defendant moves to dissolve upon an answer thus authenticated, he moves upon an affidavit within the meaning of the Code; and the motion may be opposed by new affidavits on the part of the plaintiff.</p> <p>9. This is so, whether the answer merely denies all the allegations of the complaint, or in addition to that, contains new matter.</p> <p>10. A complaint and answer are pleadings, and whether verified or not, perform offices as such. But they are none the less affidavits and entitled to be used as such, when their allegations are in such form, and are so verified, that by the verification the truth of the allegations is positively affirmed.</p>

<p>1. A mere agent cannot prosecute a suit in his own name for the benefit of his principal.</p> <p>2. A defendant will not be restrained from prosecuting a business, to an interest in which he has agreed to admit the plaintiff at'a future day, (viz.: January 1,1864,) merely because the defendant insists that he is prosecuting it solely on his own account, and that when that day arrives the plaintiff will not have any right to participate in such profits.</p> <p>3. The fact that the defendant is insolvent furnishes no ground, in such a case, for an injunction, it not appearing that his circumstances have changed since the alleged agreement was made.</p> <p>4. An injunction, pendente lite, should not be granted on light grounds, nor in doubtful cases.</p> <p>6. Where the right is not clear, or the danger great, or the apprehended mischief irreparable, the injunction should not be granted until the rights of the parties are ascertained and settled upon full proof on the final hearing and the right to it is 'established.</p>

<p>1. Where, pending an action at issue against several persons as makers and indorsers of two promissory, notes, amounting to the principal sum of $1,800, a written agreement is made between the plaintiff and certain of the defendants, by which nine promissory notes for the sum of $200- each, payable at intervals of three months, were given and accepted for the notes in suit, and such defendants were to serve, and did serve an offer, in writing, withdrawing their answers and allowing judgment to be taken against them “ for $1,973.60, without costs, subject to the covenant for a stay of proceedings,” contained in said written agreement, to the effect that the plaintiff would not enter judgment on said offer until after sixty days from the maturity of either of said notes and a failure to pay it, and where, upon a failure to pay the fourth of said nine notes within sixty days after its maturity, the plaintiff entered up a judgment on said offer for the sum of $1,600.80, and issued execution thereon; held, that the judgment was unauthorized and irregular, and should be set aside.</p> <p>2. That the 385th section of the Code does not provide for entering a judgment upon an offer, unless it be unconditional, and leaves no facts to be ascertained and determined, to authorize the entry of a judgment.</p>

<p>1. The Code permits any material allegation of a complaint to be put at issue, by an answer that the defendant has no knowledge or information thereof sufficient to form a belief as to its truth.</p> <p>2. When any material allegation of a complaint is thus controverted, the answer cannot be treated as frivolous, or held bad on demurrer, merely because such allegation is of the recovery of a judgment, or of some other fact, the truth of which can be ascertained by inquiry.</p> <p>3. If the answer is believed to be sham, the remedy is a motion, on affidavits, to strike it out as sham.</p> <p>4. An answer is not frivolous, merely because it denies the several allegations of a complaint conjunctively, instead of denying them disjunctively.</p> <p>6. Where, in an action on an undertaking given in an action of claim and delivery, to procure a return to the defendants of property taken from them in such action, the complaint alleges, “ that on or about the 21st day of January, 1860, judgment was duly rendered and docketed in favor of the plaintiffs against the defendants therein, for $612.64, damages and costs, * * and the said judgment now remains of record, outstanding, and wholly unpaid, not vacated or otherwise discharged;” an answer which merely alleges that defendant “has no knowledge or information sufficient to form a belief whether judgment was entered on the 21st of January, 1860, in said action', * * for said sum of $612.64 damages and costs,” is frivolous.</p> <p>6. Though not entered on the 21st, it may have been, and the answer does not deny that it was entered on or about that day, (which is the allegation in the complaint,) and remains of record, in full force, unpaid, and in no way vacated or otherwise discharged.</p> <p>7. It is not essential to a right of action on such an undertaking, that an execution has been issued on the alleged judgment, and returned unsatisfied.</p>

This purports to be an appeal from an order made “ at special- term at chambers,” by Mr. Justice Moncrief, on the 12th day of November, 1860, by which the plaintiffs were relieved from their default in not bringing the cause to trial at the October term, and vacating and setting aside “ the default, * * dismissing the complaint, &c.,” and ordering that the action be referred to Ambrose L. Pinney, Esq., as sole referee.

<p>1. The Superior Court of the city of New York has jurisdiction of an action on contract, where one or more of several defendants, jointly liable on the contract, reside, or are personally served with the summons within that city. (Code, § 33, sub. 2.)</p> <p>2. Where the complaint in an action against two persons as common carriers, who are partners in that business, avers the delivery of goods to them, at New Baltimore, Greene county, to be carried thence to New York city; that they were common carriers between those places, and partners in that business; that they received the goods, and “then and there undertook to convey the same from New Baltimore to the city of New York, and to deliver the same to the plaintiff;” that they did not safely carry andt deliver, but so negligently conducted that the goods were wholly lost, it states an action on contract, where the defendants are jointly liable.</p> <p>3. Where, in such an action, one of the defendants is served with the summons within the city of New York, that court has jurisdiction of the action; and where the defendant so served alleges in his answer that both defendants reside in Greene county, and did at the time of, and since the commencing of the suit, and that his co-defendant was served with a copy of the summons and complaint in Greene county, and not within the city of New York; that part of the answer will be stricken out on motion as irrelevant.</p>

This motion is made upon the complaint and the affidavit of Simon Stettiner, who states that he is the person served with the summons and complaint, and is the copartner of the defendant Kamps, under the name and firm of Stettiner & Kamps, and that there is no person named Henry Stettiner who is a member of that firm; and the complaint shows that the action is for goods alleged to be sold to the two defendants; and the affidavit of Kamps is also produced to the effect that…