Volume 7 — Daly's New York Common Pleas Reports

<p>Appeal from an order made at special term by Judge Van Brunt confirming the report of a referee to whom upon an application for substitution of other attorneys in four suits pending in this court, in the place of F. N. & C. W. Bangs, (who were unwilling to render any further services therein until payment was made for services already rendered; upon the amount of which the applicant and his attorneys were unable to agree ;) it had been referred to take testimony and report the same with his opinion as to whether substitution should be ordered, and if so upon what terms; what sum if any should be paid to said attorneys upon substitution, and what security, if any, should be required for such portion of their claim as should not be paid on substitution. The order of Judge Van Brunt confirmed the report of the referee upon the merits, but provided that upon payment by the applicant of the expenses which his application had caused the attorneys proceeded against, he might as a matter of favor withdraw his application, and that upon such payment and withdrawal, the report should be vacated. From this portion of the order the attorneys proceeded .against appealed.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiffs, granting a perpetual injunction against'manufacturing a compound called “ cherry pectoral,” and using that name upon bottles, labels, or wrappers, and selling any compound by that name, and against imitating the plaintiffs trade-mark “ cherry pectoral.” The defendants appealed upon the judgment roll including the findings of fact and law made at special term.</p>

Appeal by the defendants from a judgment entered upon the verdict of a j ury and from an order made denying a motion for a new trial. The action was brought to recover commissions for effecting the sale of real estate. The complaint alleged that the defendants employed the plaintiff to obtain for them a purchaser of certain land ; that .the plaintiff procured a purchaser who made a contract with the defendants for the purchase of the land.

Exceptions ordered to be heard in the first instance at general term to a direction of Judge Van Brunt at trial term, dismissing the complaint. The action was brought to recover damages for personal injuries suffered by the plaintiff in falling while crossing Nassau street in the city of New York, which fall it was alleged, resulted from the plaintiff’s slipping on some ice which, by the defendant’s negligence, had been allowed to remain in the street.

Appeal by the plaintiff from a judgment of this court entered on the report of Livingston 'K. Miller, Esq., as referee to hear and determine the issues. The action was brought to recover damages for the failure of the defendants to deliver to the plaintiff crude petroleum of the quality called for by the contract for the sale thereof made by the defendants.

One Isaac S. Rice applied to this court to be naturalized and by an affidavit attached to his application showed that-he was born in Germany in the year 1850, and came to.

<p>The judgment entered on a forfeited recognizance will be vacated.wliere, after the forfeiture of the recognizance, the surety has been prevented.from retaking and surrendering his principal by the death of the principal; upon the usual terms of payment of any costs that may have been incurred by the People in entering the judgment.</p>

<p>In proceedings to enforce mechanics’ liens, a sub-contractor is not estopped from asserting his lien as against the owner by reason of the fact that the owner was induced to employ a certain contractor to build, by parol statements of such snb-contractor, that the contractor was responsible, and that if he was employed, he, the sub-contractor, would be responsible that the contractor would so perform his contract that no liens would be filed, such agreement being void, not being, under the Statute, in writing and there being nothing in it that operated by way of estoppel.</p>

<p>Appeal by the defendant from a judgment of this court entered on a verdict of a jury at trial term.</p> <p>The action was for slander, the alleged defamatory words being “ You (meaning the plaintiff) are a thief and a scoundrel ; you have made false entries in my books; you have sold flour for me, and charged and collected therefor more than you returned or accounted to me for, and kept the balance; you and Clarkson stole $3,000 from me.”</p> <p>The defendant on the trial offered to show in mitigation of damages the facts stated in the opinion, but the evidence was excluded.</p>

<p>Appeal from ajudgment of the Marine Court of the city of New York entered upon an order of the general term of that -court affirming a judgment entered upon, a verdict rendered .against the defendant by direction of that court at trial term. The facts sufficiently appear in the opinion.</p>

The exceptions taken were to the refusal of the court to dismiss the complaint at close of plaintiffs case and to portions of the judge’s charge. The facts of the case were as follows : On Dec. 4,1872, one William H. Decker executed a chattel mortgage to defendants, who were copartners, to secure payment of $30,000 on demand.

<p>Appeal from an order made by Chief Justice Charles P. Daly, affirming the decision of the clerk on taxation of costs.</p> <p>One commission was issued in the action, to which was annexed four separate sets of interrogatories,—one set for each of four witnesses to be examined thereunder. The clerk in taxing the plaintiffs’ costs allowed forty dollars as «costs for drawing said interrogatories, being ten dollars for each set. The defendants claimed that but ten dollars should be allowed for drawing all.</p>

<p>Appeal by the plaintiff from an order of the general term of the Marine Court of the city of New York, reversing a judgment of that court, in favor of the plaintiff, entered on the verdict of a jury, and directing a new trial.</p> <p>The action was brought by the plaintiff, Dale, to recover damages for the conversion of certain machinery left by him in the gratuitous custody of the defendants, at their store, in New Yoik city, with their permission. Some time after the machinery was placed there, and during the absence of the plaintiff from the city, the defendants, without notice to plaintiff, and without any authority from him, sent the machinery to an auction room, where it was sold by their instructions, and brought $10. The jury found the value of the machinery to be $100.</p>

Application at general term for an order to expunge dockets of judgments entered upon forfeited recognizances. The applicant, Devlin, received notice to produce one-William M. Tweed, a prisoner, at a court of Oyer and Terminer or to show cause why the recognizances in these five cases-should not be estreated (he being the bondsman). He appeared and showed cause why he did not produce the prisoner.

Appeal by the defendant from a judgment of this court entered upon a verdict in favor of the plaintiff. This action was brought by Henry M. Crow, as assignee of Ellis N. Crow, an insolvent debtor, to recover the price of certain services rendered in the month of April, 1876, by Ellis N. Grow to the defendant Colton.

Appeal by the defendants from a judgment of this court entered upon the report of John P. Crosby, as referee, to-whom it had been referred to hear and determine the issues. The action was brought by the plaintiff Imhorst to recover damages for the conversion of certain furniture. The referee found that the value of the furniture was $1,179 77, and that the plaintiff should recover that sum.

<p>Appeal by the defendant from a judgment of this court entered in favor of the plaintiff, upon the report of William Watson, Esq., as referee, to whom it had been referred to hear and determine the issues.</p> <p>The action was brought by William P, Wright against his brother, George S. Wright, who was administrator of their father’s personal estate and who had also collected the rents of the real estate which had belonged to his father, to recover plaintiff’s share of such rents and profits. The answer contained'a defense of set-off, embracing several items, among which were two of SI,000 each, as “money advanced ” to plaintiff at his request in payment of drafts. These drafts, which were drawn upon defendant, the answer also alleged were paid “ for the accommodation of the plaintiff.”</p> <p>The drafts were put in evidence at the trial. One, dated March 15th, 1870, was drawn on account of plaintiff’s distributive share in his father’s estate; the other, dated Nov. 7th, 1870, was drawn generally “ on account.” To the first draft was annexed a receipt acknowledging payment of the amount as plaintiff’s distributive share in his father’s estate. Upon the defendant’s cross-examination, it appeared that he had at his accounting as administrator, before the surrogate of Westchester county, included the two drafts in a statement then presented to the surrogate as amounts paid William P. Wright, on account of his distributive share of his father’s estate.</p> <p>The referee afterwards refused to allow the defendant to testify what was his intention as to the application of the payments, and to the ruling the defendant excepted. The referee found that no proof was produced by the clefendant in support of the defense of set-off as respects the two drafts, and to this finding defendant also excepted.</p>

Appeal by the plaintiffs from a judgment of this court entered in favor of the defendants Willson and Newman,, upon a decision of Judge Joseph F. Daly, made at special term dismissing the complaint. The facts of the case were as follows :— On the 2d day of July, 1875, Duke and Moore executed an assignment for the benefit of their creditors, to Charles H. Willson, Allen Gr. Newman, and James D. Trimble, who all in writing accepted the assignment, which was afterwards recorded.

<p>Notice to the defendant’s attorney of the existence of a lien of the plaintiff’s attorney upon such judgment as may be recovered in the action is not notice to the defendant, and will consequently not protect the plaintiff’s attorney in case a settlement is made by the parties to the action without providing for his lien.</p>

<p>Appeal by the defendants from a judgment of this court entered on a decision made by Judge Joseph F. Daly, at special term.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal by the defendants from a judgment in favor of plaintiff.</p> <p>The facts are stated in the opinion.</p>

Appeal by the defendants from an order made at special term, by Judge Joseph F. Daly, denying a motion to-vacate an assessment of damages, and from the assessment, had before Judge Yah Bbuht and a jury, and the judgment, entered upon the assessment.

Appeal by the defendants from a judgment of this court entered upon a verdict for plaintiff, directed by Judge Joseph F. Daly, at trial term, and from an order made by him, denying a motion for new trial. The facts are stated in the opinions.

Appeal by the defendants from a judgment of this court entered- upon verdict for the plaintiff. This was an action brought against the principal and sureties upon an undertaking given in an action in the City Court of Brooklyn upon an appeal to the general term of that court from a judgment entered upon a verdict. The sureties alone answered. The facts are stated in the opinion.

Appeal by the plaintiff from an order made by Judge Van Hoesen, granting the defendants leave to renew a motion to vacate an order of arrest in the action, and also from an order thereafter made by the same judge vacating the order of arrest. The action was to recover the proceeds of the sale of goods belonging to the plaintiff, and which had been sold for his account by the defendants, who were commission merchants in New York city.

Appeal by the plaintiffs from an order of this court, made by Judge Van Bbunt, at special term, sustaining a demurrer to the complaint.

<p>Appeal by the defendant from the judgment of a justice’s 'Court in the City of New York.</p> <p>The facts necessary to an understanding of the questions decided on the appeal are sufficiently stated in the opinion.</p>

Appeal by the defendant from a judgment of this court ■entered on the verdict of a jury after a trial before Chief Justice Charles P. Daly, and also from an order made at •special term by Judge Robinson, denying a motion for a new trial on the ground of newly-discovered evidence. The action was to recover from the defendant $300 as a year’s rent for a portion of the fourth floor of No. 23 Chambers street, in the city of New York, being from May 1st, 1866, to May 1st, 1867.

Appeal by the plaintiffs from an order of this court made at special term by Judge Van Hoesen, vacating an order of arrest. The affidavits upon which the order of arrest was obtained •charged that the defendant had obtained goods upon credit from the plaintiff by a fraudulent statement of his affairs.

<p>Appeal from an order of the general term of the Marine Court of the city of New York, reversing an order granting a new trial, and from the judgment entered in pursuance of such order.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order made at special term by Judge Yah IToesen, vacating an order of arrest.</p> <p>The order of arrest was obtained upon an affidavit in ■an action brought to recover a balance due for goods'sold on -commission by the defendant as a factor. The motion to vacate was made upon the verified answer and upon an affidavit alleging that the defendant had indorsed and turned over to plaintiff, in payment of the full amount of the proceeds of the goods, several promissory notes of third parties; that some of these notes plaintiff had collected, and that none of them had he returned or offered to return.</p> <p>The following opinion was delivered at special term by Judge Van Hoesen “ The defendant was at one time undoubtedly liable to arrest in an action brought against him for the proceeds of goods which came into his hands as a factor (Fuguid v. Fdwards, 50 Barb. 286), a case repeatedly and recently approved. The difficulty encountered, by the- plaintiff, however, is that, instead of suing the defendant, as a factor, and obtaining an order of arrest, he accepted certain notes from him, some of which have been paid and cannot be surrendered to the defendant. It is not necessary to go to the length which Judge Harris went to in Alliance Insurance Company v. Cleveland (14 How. Pr. 408), and to decide that the mere acceptance of a note from an agent who has defaulted in his payments will at all times preclude an arrest of the defaulter. But it seems to be clear that talcing and retaining such notes or the transfer or the collection of them will bar the right to arrest. Upon the defendants stipulating not to sue for malicious prosecution, the order of arrest will be vacated.”</p>

<p>An action for an injury inflicted by the bite of a vicious dog, which the owner, with a knowledge of its propensities, suffers to go at large, is not founded upon the ordinary liability for negligence; but upon the ground that to harbor such an animal and allow him to go freely about or in the public thoroughfare, shows such a disregard for the safety and lives of others as to partake of the character of a willful wrong, which, in itself, constitutes the cause of action for the injury inflicted by the animal. In such an action, therefore, no such defense can arise to defeat the action, as contributory or co-operative negligence. Negligence on the part of the plaintiff, however, may be shown, but it goes only in mitigation of damages.</p> <p>The liability of the owner or harhorer of the dog rests upon his knowledge of the animal’s dangerous propensities, and his allowing him to go at large where he may inflict injury.</p> <p>The authorities in the case of injuries by ferocious animal reviewed.</p> <p>Where the defendant on cross-examination elicited the same statement that the witness had made on the direct, and then moved to strike it out, which the court refused:—Held, that he was not injured; for if his motion had been granted, it would not have shut out the evidence, as it was in on the direct, and it was then ' too late to strike it out in the direct.</p>

The trial was by the' court, a juiy having been waived. This action was brought by the Merchants’ Loan and Trust Company, to recover the amount of a check, certified by the ■defendant, which amount the plaintiff had paid to the person to whom the check was given, and who had obtained the ■certification. The real name of this person was Charles F. Stearns, but the makers, Messrs.

<p>In order to justify a policeman in the city of New York in arresting a person without a warrant, or to justify one procuring such arrest, the act for which the arrest is made, whether it he regarded as constituting or tending to a breach of the peace, must he committed in the immediate presence of such officer.</p> <p>The case of the Master Stevedores Association v. Walsh (2 Daly, 1) as to the extent to which trades associations can legally go in controlling the rate of wages considered, and its authority said not to be afieoted by the. act of 1870 (L. 1870, c. 19) concerning the peaceable assembling of workmen.</p>

Daly, denying a motion made by the defendant to vacate or reduce the amount of a judgment entered against it. ' The facts are stated in the opinion.

Daly, granting a motion to vacate an attachment. The motion wag made on the papers upon which the warrant of attachment was granted. Th,e facts are stated in the opinion.

<p>Appeal from a judgment of this court, entered on a decision made at special term by Judge Loew, requiring the plaintiff to pay the defendant Thaule $906 92, and that upon such payment the defendants should execute deeds of certain lands to plaintiff.</p> <p>The action was brought to have adjudged fraudulent and void two deeds of certain land in New York City; one deed having been made by the defendant Thaule to the defendant Heinecke, and the other having been made from Heinecke to the third defendant, Wessel. The complaint asked also a judgment for damages.</p> <p>The complaint alleged that the defendant Thaule, on August 9th, 1870, conveyed the land by deed to one Maria Stoddart; that on August 13th, 1870, Maria Stoddart conveyed by deed to plaintiff; that on April 15th, 1871, the defendants Thaule and Heinecke conspired to cheat plaintiff, and with that intent Thaule forcibly took from plaintiff the two last mentioned deeds, and afterwards, on April 18th, 1871, conveyed said land by deed to the defendant Heinecke, and recorded the same; that afterwards the defendant Heinecke, by direction of Thaule, conveyed by deed to the defendant Wessel; that this deed was recorded, and that the considerations for these two deeds were “ pretended,” and that Wessel knew when he took his deed that plaintiff was in possession, claiming under her title from Mafia Stoddart. The defendant Thaule admitted making a contract of sale of the land with Maria Stoddart; alleged that Maria never performed the agreement on her part, and denied the other .allegations of the complaint. The answer of Wessel alleged that he bought the land in good faith, and for value paid, before knowledge of plaintiff’s claim, and denied any knowledge as to the other allegations of the complaint.</p> <p>The court, at special term, on these issues, found as facts, that prior to August 1st, 1870, the land in question was conveyed to the defendant Thaule, in trust for the plaintiff; that Thaule conveyed as aforesaid to Heinecke, and Heineeke to Wessel; that the defendants in open court offered to allow judgment that the defendants convey all their interest in the land to plaintiff, upon plaintiff’s paying or securing payment of all expenses Thaule .had incurred by reason of the trust. The court further found as conclusions' of law and adjudged that plaintiff pay the defendant Thaule his expenses on account of the trust, and the costs of the action, and that upon such payment of the expenses the defendants execute deeds of the land to the plaintiff. A reference was also ordered, to hear and determine the matter of expenses, and iipon his report judgment for the amount reported and costs was entered.</p>

Appeal by David C. Page and others, relatives of the lunatic, from an order of this court, made by Judge Yah Bbuet, confirming the report of John M. Scribner, jr., a referee, to whom it was referred, to inquire and report who was a proper person to be appointed a committee of the person and estate of Page, a lunatic.

Appeal by the defendant from a judgment rendered by the Justice of the District Court of the First District in New York City, in favor of plaintiff for $44 50 and costs, being the amount of certain drawback received by defendant on the exportation from the port of New York to Japan of tin cans (containing oil), the cans being manufactured in this country of materials imported therein on which duty had been paid. The drawback was that allowed by Rev. Stat.

<p>Where the defendant had sent his wife and children to live with the plaintiff, and had then demanded the children from his wife, who had (to the plaintiff's knowledge) refused to deliver them up, and the defendant had thereafter sued out a writ of habeas corpus for his children, and in those proceedings his attorneys had agreed that until the termination of the proceedings the children should remain in the custody of the wife. Held, that although the refusal to surrender the children to the defendant would otherwise have prevented his liability for necessaries supplied to them thereafter, yet his subsequent consent that they should remain in the custody of the mother until the termination of the habeas cmpus proceedings continued his liability therefor to the plaintiff for necessaries furnished them while in the custody of their mother until such proceedings were terminated.</p> <p>Where the defendant’s children, who were living with their mother (the defendant’s wife), from whom he had separated himself, were of the ages of twelve, nine, and eight yiears, and were in ordinary health and attended school daily, and the-defendant’s wife was able to take care of them, had she chosen to do so, and the defendant was a man of small means. Held, that under these circumstances, a. nurse for the children was not necessary, and that the plaintiff who had paid the-. wages of such a nurse could not recover the same from the defendant.</p>

<p>' Appeal from a judgment entered upon a decision of the general term of the Marine Court of-the city of New York, affirming a judgment rendered by that court at trial term in favor of the defendant upon the merits. The cause was tried by the court, a jury having been waived.</p> <p>This action was brought by the plaintiff, Barbara Durian, to recover from the -defendant, an incorporated benevolent society, the sum of $500, to which she claimed she was entitled out of its funds, as the person who had been designated in accordance with its constitution to receive said sum, by Philip Durian, a member of that society, who had died after making such designation.</p> <p>The defense substantially was that by the constitutions of that society the sum of $500 was payable to the widow of •the deceased member in preference to the person designated; that Barbara Durian was not the widow of Philip, but that one Catherine Durian was, and further, that Barbara was never designated by the deceased member in accordance with the constitutions of the society. The provisions of these constitutions bearing upon the points in controversy will be found in the opinion.</p>

Appeal by the plaintiff from a judgment of this court, entered on a decision made at special term, Judge VAN Hoesen, dismissing the complaint. This action was brought by the plaintiff, the Ninth Avenue Railroad Company, a corporation operating a horse railroad in the city of New York, against the defendant, a corporation operating by steam an elevated railroad in the same city, and a part of its distance above the plaintiff’s road on the same avenue.

Appeal by the defendants from a judgment of the Third District Court in the city of New York for $107 50 damages and costs. ■ The action was against the defendants as principal and surety on a bastardy bond taken in bastardy proceedings before a police justice in New York city.

<p>The Constitution of this State having provided in Art. I., Sec. 8, that “ every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press,” a court of equity has not jurisdiction to restrain the publication of libellous matter.</p> <p>The New York Juvenile Guardian Society, organized under the General Act of April 12th, 1848, for the incorporation of benevolent, charitable and missionary societies—the objects of its incorporation being to provide instruction, homes, clothing, temporary board, and free Christian schools (not denominational) in destitute districts in the city of New York for neglected children,—is subject to the visitation and examination of the Board of State Commissioners of Public Charities, in accordance with the powers and duties conferred on them by L. 1873, c. 571, § 4, in regard to any charitable, eleemosynary, correctional or reformatory institutions of this State (excepting prisons), whether receiving State aid or maintained by municipalities or otherwise.</p> <p>The legality of the appointment of certain members of the Board of State Commissioners of Public Charities cannot be inquired into in an equitable action to restrain them from doing certain acts which they claim by virtue of their appointment as such commissioners to have the power to do.</p> <p>The examinations and inspections made by the Board of State Commissioners of Public Charities are not in the nature of an action or proceeding against the institutions examined, and the commissioners are not obliged to conduct them according to the forms of a civil or criminal action or proceeding; the examination may be secret and not based on any specific charges, nor confined to any particular points, and the institution examined is not entitled to notice of the course the examination is to take, or to have notice of what is done, or to be present by its officers or counsel at the taking of testimony, or to cross-examine the witness produced, orto introduce witnesses.</p>

<p>"The jurisdiction conferred on the Superior City Courts by § 263, subd. 2 of the Code of Remedial Justice (L. 1876, c. 448) over certain transitory actions where the defendant is not a resident of the city where the court is located, and is not personally served with the summons therein, but the cause of action arose in that city, is such as may be conferred on such courts by the Legislature under art. VI., § 12 of the Constitution, providing for the continuance of such courts, with the jurisdiction they then severally had, and such further civil and criminal5 . jurisdiction as might be conferred by law, and such extension of the jurisdiction! of these courts beyond what they had at the time of the Constitution, is not sucln ’• an extension of jurisdiction as has been declared unconstitutional by the Court'. " of Appeals in the case of Landers v. The Staten Island 22. 22. Co. 53 N. Y. 450,, • and Hoag v. Lamont, 60 N. Y. 96.</p> <p>In an action for the agreed price of goods sold and delivered to the defendant in the city of New York,—Held, that this court had jurisdiction, although the-defendant was a resident of Queen’s county and was served with the summons-there. , -</p>

Application by a purchaser at a foreclosure sale to be relieved of his bid and to have the portion of the purchase money deposited by him at the time of the sale, returned to him. The facts are fully stated in the opinion.

Appeal by plaintiff A-om a judgment of the Second District Court in the city of New York. The action was to recover $41 69, rent for the month of April, 1875, of premises in New York city, upon a hiring for a year from May 1st, 1874.

<p>Appeal by the plaintiffs from a judgment of the Marine Court of the city of New York entered upon a decision of the general term of that court, affirming a judgment entered upon a verdict in favor of defendants, rendered by direction of the court at a trial before a judge of that court and a jury, and affirming an order made at a special term of the Marine Court, denying a motion for a new trial made upon a case and exceptions.</p> <p>This action was brought to recover of the defendant, Prigg'e, the sum of $630, which the complaint alleged remained unpaid of the price and value of materials sold "and delivered to defendant, and of work done in placing- said materials in a building in the course of erection in the ■ city of New York.</p> <p>The answer was a general denial and the separate defense that theretofore the plaintiffs had filed a notice of mechanic’s lien against Prigge as owner, and against J. & J. W. Thornton as contractors on the building; that afterwards proceedings were instituted to enforce said lien and to obtain a personal judgment against Prigge, which proceedings were still pending and were a bar. The answer was amended at the trial, by alleging the termination of said proceedings by an adjudication in favor of Prigge and against plaintiffs.</p> <p>The plaintiffs introduced evidence to show that after they had manufactured a small part of the materials to be supplied by them under their contract with the Thorntons for the erection of the building; but before any of their materials had been delivered, they stopped work on the contract out of distrust in the ability of the Thorntons to pay them ; that then the defendant visited their 'place, inspected the materials furnished, expressed his satisfaction, and desired them to proceed, saying that he would pay them if they went on and fulfilled the contract.</p> <p>The defendants then put in evidence a notice of lien under the Mechanic’s Lien Act of 1863, in which notice the sum of $630 was claimed to be a lien on the building for the materials and labor furnished in pursuance of a contract with the Thorntons; and a judgment roll in an action in this court to foreclose a mechanic’s lien on the building above mentioned, in which action Joshua S. Peck and another were plaintiffs, and Prigge, the Thorntons, Charles Toope, George H. Toope and other lienors were defendants. Included in the judgment roll was the answerer statement of claim of Charles and George H. Toope, in which it was alleged that they, in pursuance of a contract with the Thorntons, sold and delivered to them materials and did work on the buildings, for which there was due $630, and there was demanded judgment of foreclosure and sale and a personal judgment against the Thorntons and against Prigge. The judgment roll contained the answer of Prigge denying each and every allegation of the statement of the Toopes, except that he admitted that he was the owner, and was indebted1 to the Thorntons under his contract with ■ them to furnish all the material and do all the work on the building. The judgment roll contained, also, the report of a referee, to whom the issues were referred. This report contained a finding of fact that Charles Toope and George H. Toope furnished materials and did work for and at the request of the Thorntons of the reasonable value of $1,400, and that they duty filed their lien. The report contained no other finding or adjudication as to the claim of the Toopes, nor did the judgment entered upon the report of the referee. The judgment was for the foreclosure and sale of the building and premises and for the payment of the claims of other lienors. With the introduction of this judgment roll the defendants rested, and the court directed a verdict to be rendered against the plaintiff, holding that the issues involved had been litigated or might have been litigated in the action to foreclose the mechanic’s lien, and that the judgment therein was a bar to the present action. The plaintiffs excepted to the direction of a verdict.</p>

<p>Where it appears in supplementary proceedings that personal property in the-possession of the judgment debtor and belonging to him, has been mortgaged by him to another, hy a chattel mortgage payable on demand, a judge before whom the proceedings are had, cannot order the debtor to deliver the property to a receiver appointed by him.</p> <p>Where after the appointment of a receiver in supplementary proceedings personal property belonging to the judgment debtor, and in his possession, is levied on under an execution against his property, the judgment debtor cannot he ordered! to deliver the property to the receiver, but the receiver must he left to his action against the sheriff seizing it to recover it from him.</p>

This action was brought by Smith, the surviving partner of E. A. Smith & Brothers, against the defendants, who composed the firm of Salomon & Moral, to recover an unpaid balance of the price of goods sold and delivered.

Appeal by the plaintiff from a judgment of this court entered upon an order dismissing the complaint on the merits, made at special term by Judge Van Hoesen. This action was brought by Plonsky against Japha and Meyers. The complaint alleged that Plonsky and Japha were copartners in trade; that Plonsky was insolvent and had made a general assignment of his property for the benefit of his creditors to Meyers, and that plaintiff had requested.

<p>-A warrant oí attachment cannot be set aside on motion, where the facts stated in the affidavit on which the warrant was granted, have a legal tendency to show that the statutory ground for the attachment exists, and are such as fairly nailed for the exercise of the judgment of the magistrate who granted the warrant, as to their sufficiency.</p> <p>"Where the affidavits on which an attachment had been granted against the property of the defendant, on the ground that he had disposed of his property with intent to defraud his creditors, showed that at a time when the defendant was largely indebted, and an execution against his property was in force and unsatisfied, and he was harassed by legal proceedings, he executed, and caused to be executed at the same time, three instruments relating to certain real estate belonging to him in another county, viz:—1. A deed' from himself to one S., a laborer employed by him upon the property, for a consideration as expressed of $2,000. 2. A deed from the said S. to his (defendant’s) wife, for a like expressed consideration of $2000; ■and 3. A mortgage upon the property by his wife to himself as trustee for his ■mother-in-law; that after those instruments had been executed, he retained them all in his own hands for about a month, and then caused them to be all recorded, two days before the recovery against him of a judgment for a deficiency in a foreclosure suit; also, that although these instruments were drawn up in the office of the defendant, who was an attorney, yet they were not prepared according to the ordinary course of business in his office, but that lie attended to their preparation personally, and did not deposit them in the safe where he usually kept such papers, and that for several months after he had made the deed to S., the defendant continued to act as owner of the property, and spoke of it as his own, and gave directions about its management, and concerning repairs to and improvements upon it, etc.</p> <p>Held, that these facts were sufficient to sustain the granting of the attachment within the rule above laid down.</p>

<p>Appeal by the defendant from a judgment of the court, ■entered upon a verdict in favor of the plaintiff, rendered at a trial before Judge Van Hoesen and a jury, and from an order denying a motion for a new trial.</p> <p>The action was brought by White, a maltster, to recover $975 89, a balance of charges for malting barley, for which charges a quantity of the malt belonging-to defendants had béen held by plaintiff, and which charges it was alleged in the complaint the defendants had promised to pay in consideration of the malt being delivered to them. The complaint admitted that defendants had paid $2,500 subsequent to the delivery of the malt.</p> <p>The defendants, in their answer, alleged that the only «charges on the malt held by plaintiff for defendants amounted to $2,459 79, and that by mistake they had paid plaintiff $40 21 too much. This last sum and the further sum of $115 86, for alleged failure to deliver some seventy-two bushels of malt, defendants counterclaimed of plaintiff. The answer further alleged that the promise made by the defendants to pay charges was a promise to pay the charges for malting the particular barley from which the malt so held for them was obtained. It appeared from the evidence that the malt referred to in the complaint was a part of a lot of 18,949 bushels sent in the form of barley by John Gordon & Son to the plaintiff in October and November, 1872, under an agreement between. Gordon & Son and plaintiff that it should be' malted by plaintiff at twenty-three cents a bushel, plaintiff making but a single agreement for the malting of the whole lot. It also appeared that the charges for malting this ■amount (18,949 bushels), at twenty-three cents a bushel, were $4,358 36, and .of that amount Gordon & Son paid plaintiff $1,000 on account, leaving a balance of $3,358 36 unpaid. On November 18th, 1872, Gordon & Son, upon advances made them by defendants, transferred a part of the barley, by indorsing over to them two maltster’s receipts signed by plaintiff.</p> <p>' These receipts each contained a clause, that the charges upon the barley, for labor and storage, were as per agreement. The first "receipt was dated Oct. 11,1872, and was for 4,924 8-48 bushels of barley, and the second, dated November 9, 1872, was for 5,410 bushels Western barley. Other consignments of barley, besides the two lots for which the receipts were given, made up; the 18,949 bushels sent by Gordon & Son to be malted under their contract with the plaintiffs. The lots not mentioned in the receipts (8,615.12 bushels) were, after being malted, delivered on Gordon’s order from December 2, 1872, to April 25,1873, in all 8,861.32 bushels of malt. Gordon paid $1,000 on account, and in May told the plaintiff, that he had transferred the balance of the malt to-defendants, who (he said) would pay the balance of the bill.</p> <p>When the defendants applied to plaintiff for the delivery ■ of the malt for which they held the receipts, the plaintiff declined to deliver it unless he was paid “the charges for the barley.” Upon the defendants replying, “ of course we consider ourselves bound for the payment of the charges on this-malt,” the delivery was made.</p>

. Appeal by the defendant from an order of this court made at special term by Judge Larremore, denying a motion made by the defendant, Dupuy, to vacate an order and summons for his examination before trial, and from the order for examination. The action was brought to recover damages for libels.

Appeal by the defendant from a judgment of the general term of the Marine Court, of the city of New York, affirming a judgment of that court, entered on the verdict of a jury. The action was brought to recover compensation for ■services as a broker. The facts essential to an understanding of the decision Rere appear in the opinions.

Appeal by the defendant from an order of this court, made at special term by Judge Joseph F. Daly, granting a motion that the defendant make his answer more definite and certain.

<p>Appeal from a judgment of the Marine Court, entered upon a decision of the general term of that court, affirming a judgment entered upon a verdict for the plaintiff, rendered ■at a trial had at a term of that court.</p> <p>The .action was -brought against Simon Van Winkle as maker, and H. Tracy Arnold and Horatio F. Averill as in.dorsers, to recover the sum of $1,200 andinterest, the amount of a promissory note made to the order of the plaintiff.</p> <p>It appeared from the evidence at the trial, that the note in suit had been given, together with a check of Averill’s for $300, in part payment of a former note of $1,500 made to the plaintiff by Van Winkle, and indorsed by Arnold and Averill; that Van Winkle had given plaintiff the $1,500 note in settlement of certain claims against him and other parties. This settlement also provided for the-delivery to Van Winkle, in certain contingencies, of certain stock of the American Life Saving Suit Company. ' It appeared also that Van Winkle had obtained the indorsements of Arnold and Averill under an agreement that they were to share in certain stock of the Life Saving Suit Company, which he (Van Winkle) was to obtain by means of the note. There was evidence that the note in suit was indorsed by Averill before being received by plaintiff, and that plaintiff took the $1,500 note on the settlement, and received the $1,200 note in part payment of the former note, relying upon the indorsements.</p> <p>The judge at trial, in charging the jury, left to them the question of fact as to whether Averill knew, at the time he indorsed the $1,500 note, that it was to be given by Van Winkle to plaintiff, in accordance with the terms of the contract between those two persons, and whether he knew that the $1,200 note was to be given in renewal of the $1,500 one, and as to whether he indorsed the $1,200 note with the intention that it should represent, in the hands of the plaintiff, a valid claim against him.</p> <p>The jury found a verdict for the plaintiff for the amount of the note and interest.</p>

<p>Appeal by plaintiff from an order of this court made at special term. The facts are stated in the opinion.</p>

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

Appeal by the plaintiff from a judgment entered on the decision of Judge Robinson, after a trial before him without a jury.

<p>Motion by the plaintiff to have Henry R. Pierson, who had been appointed receiver of the defendant corporation, 'substituted in place of the corporation as the party ■ defen d- • ant. The facts on which the application was founded and opposed áre stated in the opinion.</p>

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

Appear by the. defendants from an order of this court made by Judge Larremore at special term, overruling a demurrer to the complaint. This action was brought by Schenke to recover part of the last installment of the contract price for the erection of a building for the defendants.

Appeal by the plaintiff from a judgment of this court, enter'ed upon the verdict of a jury, after a trial before Judge Van Brunt, and from an order made at special term by Chief Justice Charles P. Daly, denying a motion for a new trial upon the minutes of the judge at the trial, under the exceptions taken thereto. The action was brought for the conversion of a lot of about 200 silk umbrellas.

<p>The plaintiff received a sewing machine from the defendants under a written contract, by the terms of which she certified that she “ hired it to use,” and agreed to pay them a specified sum in advance, as security for its safe keeping, and to make monthly payments of an amount fixed, for twelve months thereafter, for the use of the machine, and upon default in any of the payments, to forfeit the machine and the security money. The contract also stipulated that she could at any time purchase the machine upon the payment of a sum, which, added to the security money, and the monthly instalments, should amount to a certain price. The security money was paid, as well as six monthly instalments, when a default was made, and the machine taken by the defendants, whereupon she sued to recover -back the amount of her several payments. Held, that she could not recover the amount of the instalments, nor (Daly, C. J., dissenting) the amount of the original deposit.</p>

Appeal by the defendant from a judgment of this court, entered upon a verdict in favor of plaintiff, rendered at a trial before Judge Joseph F. Daly, and a jury, and from an order denying a motion for a new trial. The facts are stated in the opinion.

Appeal by the plaintiff from a judgment of this court entered upon a dismissal of the complaint at a trial had at a special term of the court, without a jury, before Judge Van Brunt. The decision at special term is reported in 1 Abb. N. 0.140. ... The action was for a limited divorce.

Appeal by the plaintiff from a judgment of this court in favor of the defendant, entered upon a dismissal of the complaint granted by the court at the close of the trial before Judge Joseph F. Dalt and a jury.

Appeal by the defendants from a judgment in favor of plaintiffs, entered upon a decision of the general term of the Marine Court of the city of New York, affirming a judgment entered upon a verdict in that court at a trial term.

■ Appeal by the defendant from a judgment for plaintiff, entered upon a decision made by Judge Joseph F. Daly, at special term. This action was brought by Anna M. Cushman against ■ the defendants, a New York corporation, to obtain the transfer to plaintiff, upon the books of the defendant, of nineteen' thousand five hundred shares of stock by defendant upon. their books, and the issue to her of a certificate of such stock.

This case came before the general term on exceptions taken by defendant on the trial before Judge Larremore and a jury at trial term, which exceptions were ordered to be heard at the general term in the first instance.

Appeal by the defendant from a judgment in favor of plaintiff, entered upon an order of the general term of the Marine Court of the city of New York, overruling a demurrer to the complaint, and reversing a judgment entered upon án order of the special term of that court, sustaining the demurrer. : The action was brought by Hauger and another against Bernstein, one of the sureties of one Feeny, a marshal of the city of New York, upon his official bond to the mayor, etc., of…

Appeal by the defendant from a judgment in favor of plaintiffs entered on a decision made by Judge Robinson at special term. The action was brought by the plaintiffs, Prime and another to recover the amount of certain installments of interest on a bond secured by a mortgage on the land of defendant. The bond and a mortgage accompanying it were executed by a former owner of the land covered by the mortgage.

<p>Appeal by the defendant from a judgment in favor of plaintiff, entered upon a Verdict rendered at the trial before Chief Justice Charles P. Daly, and a jury.</p> <p>This action was brought by Dethlefs against his former partner, Tamsen, upon a promissory note for $3,000 made by Tamsen to Dethlefs.</p> <p>The answer admitted the making and delivery of the note, and set up as a defense, failure of consideration to the extent of $2,500 of the note, to which extent the note was •given in payment to the plaintiff for the good-will of the partnership upon a previous sale by plaintiff to defendant of plaintiff’s interest, which sale was made upon the agreement of the plaintiff “ not to injure said sale by any actions whatsoever.” The answer alleged further, that after the dissolution the plaintiff opened a store near by the place of business of the late firm and of defendant, of the same character, and in various ways attracted away from defendant’s store the former customers of the firm, by leading them to believe that the new store was that of the former partnership. The answer also counter claimed damages in the amount of $3,000 for setting up such business in violation of the terms of the articles of partnership as to dissolution.</p> <p>The jury gave a verdict for plaintiff for $520. Plaintiff appealed. The cause was argued upon a case and exceptions, which latter, with the rulings excepted to, sufficiently appear in the opinion of the court.</p>

Appeal by the defendant from an order made at special term, by Judge Van Hoesen, overruling a demurrer to the complaint. • The action was brought by Hernandez, upon a contract of Stilwell, indorsed upon the bond of one Remington.

Appeal by plaintiff from a judgment for costs entered in favor of defendant, Glover, upon a dismissal of the complaint as to him, ordered at the trial of the action before Judge Joseph F. Daly, and a jury. The action was against Francisco J. Cortissoz, William St. Anna and Frank Glover, comprising the firm of Cortissoz,; St. Anna & Co., on a promissory note made by said firm to their own order, and indorsed to the Columbian Insurance Company.

Appeal by the defendant from a judgment of this court in favor of the plaintiffs, entered upon a verdict rendered at a trial-before Chief Justice Charles P. Daly, and a jury. This action was brought against Jones to recover the value of certain chattels of the plaintiffs, alleged to have been wrongfully taken from plaintiffs’ premises and carried away by the defendant, and to recover other damages for such Avrongful taking.

Appeal by the defendant from a judgment of this court, entered in favor of plaintiff, upon the report of Bradbury C. Chetwood, a referee, to whom it was referred to hear and determine the issues.

Appeal by the plaintiff from a judgment of the justice of the 8th District Court, in favor of defendant, dismissing the complaint upon the merits. The facts are stated in the opinion.

Appeal by the defendant from an order granting a motion for a new trial on the minutes, and setting aside a dismissal of the complaint, ordered at the trial of the cause before Judge Joseph F. Daly, and a jury.

<p>Appeal from an order of this court at special term, made by Chief Justice Charles P. Daly, denying a motion by plaintiff for an injunction pending the action.</p> <p>The conceded facts of the case appear in the complaint, which recites substantially as follows :</p> <p>The plaintiff is a general creditor of Thomas & Co., who have made an assignment for the benefit of creditors to the defendant, John L. Hill.</p> <p>That before the making of the assignment, the firm of Thomas & Co. had certain dealings with the defendants, John Bradbury & Co., Holmes & Ellis, Booth & Miller, The Conversville Company, and The Chambersburgh Woolen Company, which consisted of consignments to them by said firms and corporations respectively, of goods for sale on commission, with the right to sell the same on time at the discretion of Thomas & Co., and upon the mutual agreement also that said Thomas & Co. would make reasonable advances to said several consignors upon their respective consignments, as might be required, and for an additional percentage, as commission, would guarantee all sales that might be made by them of any of said goods, and should be reimbursed by the consignors certain expenses incurred by Thomas & Co. upon such several consignments.</p> <p>That at the time of the execution of the assignment to defendant, Hill, Thomas & Co. had made sales unaccounted for of goods so consigned to them by each of the said firms and corporations, so that at that time there had accrued to each of said firms and corporations, upon sucli account, over and above all advances, commissions and disbursements, a large amount of money, aggregating the sum of one hundred thousand dollars, all of which were proceeds of such sales for such firms and corporations respectively to different purchasers on time, but which the consignor was not entitled, by the terms of the before mentioned agreement, to claim of Thomas & Co. until payment should become due from the purchasers.</p> <p>That Thomas & Co. so kept their accounts in respect of each of said consignors and their consignments, that the precise goods consigned by each were thereby shown, and also the precise purchaser of each consignment, and of anjr portion of either, with the date of each sale and its amount, and the credit upon which the sale was made.</p> <p>That Thomas & Co. made advances to said consignors upon all goods so consigned and sold, and payment for which was not due from the purchasers at the time of the assignment to Hill, which advances were in the form either of acceptances and payments by Thomas & Co. of sight drafts on them, or of acceptances of drafts payable at a. future day; that of the latter a large amount are still out and not yet due, having been negotiated by or on account of said consignors.</p> <p>That the assignee, Hill, has collected from various pur chasers of the consigned property the sum of $25,000, leaving $75,000 still to be collected, and that said Hill continued to keep the accounts as they were formerly kept by Thomas & Co.</p> <p>That each of the said firms and corporations, defendants, claims the proceeds of sales, as they have been or shall be collected by said Hill, are and shall be the property of the consignors, of whose respective consignments such proceeds shall be the yield, and that the balance of such sales, after deducting all proper charges, commissions and advances, shall be paid over to such consignors.</p> <p>That the assignee threatens to comply with this demand, and an injunction is prayed restraining him from doing so.</p> <p>The court at special term denied plaintiff’s motion for a preliminary injunction, on the ground that plaintiff had no right or equity in the estate or funds, the transfer or disposition of which was sought to be restrained.</p>

<p>In an action against a stockholder of a corporation organized under the Manufacturing Companies’ act of 1848, for wages due a servant from the corporation, the complaint must contain allegations showing that the sum contracted to he paid was, by the terms of the contract, payable within twelve months from the time of the contracting of the debt.</p> <p>In such an action a complaint stating only that plaintiff “ was a servant and laborer of said corporation between the 15tli day of June, 1874, and the 29th day of January, 1876, and in that capacity rendered services to said corporation, and which services were reasonably worth, and the said corporation agreed to pay this plaintiff therefor, the sum of $246 07, which sum became due and owing this plaintiff by said corporation on the said 29th day of January, 1876,” is insufficient on demurrer as not stating facts sufficient to form a cause of action.</p>

<p>Appeal from a judgment of the justice of the District. Court of the city of New York, for the Sixth Judicial District, dismissing the complaint.</p> <p>The facts are fully stated in the opinion.</p>

<p>Appeal by plaintiffs from an order of the court made at special term by Judge Laeeemoee, granting the defendant, Collignon, a new trial.</p> <p>The action was brought to recover from defendants possession of 200 barrels of apples, or if possession could not be had, for $800, .the value thereof, and damages. Plaintiffs claimed that the apples had been procured from them by Campbell by fraud, and delivered by Campbell to Collignon Avithout consideration and with notice on the latter’s part of the said fraud. The jury found against both defendants; but a motion for a new trial upon the minutes of the judge Avas made by. Collignon,"and subsequently granted on the ground that the verdict as to him was against the evidence.</p>

<p>Appeal from a judgment, entered upon a verdict of a jury, rendered for plaintiffs at a trial before the justice of the District Court of the city of New York for the Seventh Judicial District Court.</p> <p>The action was commenced by attachment. The application annexed to the affidavit on which the attachment was granted designated the persons against whose property the attachment was desired as “ John Patrick and Richard Scherer, whose first names are unknown to subscribers.” The affidavit designated them as “ Patrick and Scherer,” and stated that they were indebted to the plaintiffs “ in the sum of two hundred and fifty, over and above all discounts which the said Patrick and Scherer have against them,” the plaintiffs. On the return day of the attachment, the defendant Scherer appeared specially and moved to dismiss the proceedings, for want of jurisdiction. The motion, which by consent was heard upon an adjourned day, was denied. Both defendants appealed from the judgment, alleging, among other grounds of appeal, the want of jurisdiction.</p>

This action, originally commenced in the Sixth District Court of the city of New York, and afterwards removed inte this court, was brought, by the plaintiff, a corporation, to recover the price of goods sold and delivered to the defendant. After evidence had been given of the corporate character of plaintiff, the only evidence in the case of the sale and delivery of the goods was introduced, and was as follows : Q. Mr. Corbit, what is your business ?

The action was brought to recover arrears of rent, and for damages arising from the defendant’s leaving cumbersome personal property on the premises after the expiration of notice to quit, whereby plaintiff was deprived of the interest on purchase money until the property could be removed and a purchaser put in possession, and for money expended by plaintiff in removing the personal property encumbering the premises.

<p>Where the defendant having sold goods for plaintiff’s account sent him an account of the sales, and the plaintiff called several times at the defendant’s place of • business for the purpose of getting further explanations in regard to it without seeing the defendant, and afterwards, on seeing the defendant, was paid something on account and promised a more detailed statement of the sales, showing the names of the persons to whom they had been sold, etc., and the plaintiff waited a long time for such further statement, and wrote for it, but it was not sent:—J-Ield, that the first account sales furnished to the plaintiff by the defendant had not, l)y the action of the parties in regard to it, been made an account stated</p>

<p>When the defendant, having been requested to become surety on a lease, stated to the plaintiff’s agent that he wanted a clause inserted in the agreement of surety-ship, providing that he should have fifteen days’ notice of non-payment, to which tiie agent agreed, and the defendant afterwards instructed his book-keeper to insert a clause providing that he should have notice within fifteen days after nonpayment, and the book-keeper thereupon inserted a clause requiring “ fifteen days’ notice of non-payment, or proof of demand being made,” andtlie defendant, without noticing that the clause was not drawn according to his instructions to his book-keeper, delivered the agreement, and the plaintiff thereupon put the tenant in possession of the premises, neither he nor his agent having any knowledge of what had passed between the defendant and his book-keeper:—Held, that there was no mutual mistake of fact which would warrant the reformation of the instrument, so as to make it require notice to the defendant within fifteen days after non-payment of the rent.</p>

Ooles v. John Hannegan the statement that the defendant, Hannegan, was subject to arrest and imprisonment. The facts are stated in the opinion.

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

Appeal by the defendant from a judgment of this court in favor of the plaintiff, entered upon a verdict rendered at trial term, and from an order denying a motion for a new trial. The facts sufficiently appear in the opinions.

<p>By the provisions of section 1316 of the (new) Code of Civil Procedure, an appeal from a final judgment does not bring up for review an intermediate order which has already been reviewed upon a separate appeal therefrom by the court or the term of the court to which the appeal from the final judgment is taken.</p> <p>An intermediate order separately appealed from and affirmed by default, has “ already been reviewed” within the meaning of section 1316 of the (new) Code of Civil Procedure.</p>

Appeal by the plaintiff from a judgment of this court, entered upon a dismissal of complaint by the court, at a trial before Judge Labbemobe and a jury, and also from an order refusing a new trial. This action was brought against William C. Conner, as sheriff of the city and county of New York, to recover damages for a false return to an execution against the person of one Francis Everaet.

This action was brought to recover the value of a case of goods which the plaintiffs, Weil Brothers & Cahn, alleged in their complaint the defendant, a corporation, agreed to carry for them from New York City to San Francisco, California.

<p>Appeal from an order of this court made at special term by Judge Joseph F. Dalt, denying a motion by defendant for alimony pendente lite and counsel fee.</p> <p>The facts are stated in the opinion.</p> <p>The opinion at special term was as follows :</p> <p>“ Although defendant positively swears that she had no knowledge of the whereabouts of her first husband, and had not heard of or from him for some nine years prior to her marriage with plaintiff, yet it appears from another circumstance stated in her affidavit that she could not have believed him to be dead. That circumstance is the institution by her of a suit for divorce from him at the time she contemplated her marriage with plaintiff, which divorce was, as she says she believes, finally procured for her just before such marriage ; the decree however being sent to her after it had taken place.</p> <p>“ The statute which may be said to sanction a subsequent marriage by a person "whose husband or wife has absented himself or herself for a space of five years expressly provides that the absentee must not be known to such person to be living during that time. (2 R. S: 139, sec. 6.) In such case only is a subsequentmarri age valid until its invalidity is pronounced.</p> <p>“ The full belief in the death of the former husband or wife is the element of good faith required by the statute, in order to entitle the issue of a subsequent marriage to inherit from the parent who was entitled to contract that marriage. (2 R. S. 142, sec. 23.) And this element of good faith is of controlling importance in dealing with rights of the parties to the subsequent marriage as against each other; in this case both parties to this action certainly had reason to believe, if they were not in fact actually convinced, that the defendant’s former husband was living when this marriage was contracted; the defendant, because she instituted suit for divorce from him, and the plaintiff, because, as he himself swears, she informed him of'her desire to obtain such divorce.</p> <p>“ That divorce was to be obtained for abandonment, and both parties were bound to know that it was mere separation and not a dissolution of the bond of the former marriage (2 R. S. 147, sec. 51), and they would seem therefore to have contracted this marriage with the knowledge that the former union was in force.</p> <p>“ No observations of mine can add to the force of the mere statement of the facts showing the full extent of the legal, moral and social wrong committed in this easy violation of sacred and lawful obligations, and no other reason need be given for refusing any allowances by alimony or otherwise to a party confessedly entering into this marriage in bad faith.”</p>

Application made at general term for leave to appeal to the Court of Appeals from an order made by this court at general term affirming an order made by Judge Robinson, allowing the defendant to perfect an appeal taken by him to this court froiy a judgment of the First District Court in the city of New York, by serving the notice of appeal on the respondent in that appeal.

Appeal by the defendant, the corporation of the city •of New York, from an order of this court made by Judge Joseph F. Daly at special term, denying a motion to remove William H. Leonard, Esq., as referee, and vacate the ■order of reference to him.

Appeal by the defendant, Bennett, from a judgment of this court, entered on the report of Homer A. Nelson, Esq., who had been appointed referee to hear and determine the issues, in favor of the plaintiff and certain of the lienors, defendants. The facts necessary to an understanding of the decision here are stated in the opinion.

Appeal by the defendant from a judgment of this court, entered upon the report of a referee appointed to hear and determine the issues. The action was brought by the plaintiff, who had been a dealer and depositor with the defendant, to recover from it $885 alleged to be due as the balance unpaid of an account stated between the plaintiff and defendant of $3,168 95, made on May 8, 1875.

<p>Where the defendants were common carriers of freight and passengers by steamboat . from New York City to Sag Harbor, L. I., and the plaintiff’s trunk was delivered . on board of their boat, marked with the plaintiff’s name and “ Sag Harbor, L. I.,”—Held, that they were answerable for a failure to deliver it in the absence of evidence repelling the presumption of loss through their negligence, and that the defendants were not entitled to have the jury instructed that if the trunk was carried without any ticket being purchased by the plaintiff she could not recover*</p> <p>Held, further, that this question has been settled by the Court of Appeals in Fairfax v. The N. F. Central & Hudson River R. S. Co. (67 N. Y. 11), and that therefore this court should not make an order, under L. 1874, c. 322, for the purpose of allowing the defendants to have the question reviewed by the Court of Appeals.</p> <p>Held, further, that although there was no allegation or admission in the pleadings that tlie defendants were carriers of freight (the allegation of the complaint being only that they were carriers of passengers and baggage), that the court ou appeal might and would, in order to sustain the judgment, conform the pleadings to the proof by allowing the complaint to be amended by inserting such an allegation.</p>

Appeal by the defendant from an order of this court, made at special term by Judge Vas Bettett, denying a motion for a bill of particulars of the plaintiff’s claim. The action was brought by the plaintiff to recover sixty thousand dollars for alleged services as an attorney-and'counsellor-at-law. The complaint alleged that the plaintiff was an attorney and counsellor at law, and the defendant a niitive of Cuba, now residing in the city of New York.

• Appeal by the plaintiff from a judgment of this court, entered on a decision rendered by Judge Van Brunt after a trial before him' without a jury. ■ The facts are fully stated in the opinion.

<p>While the law is well settled in this State, that where a tenant lor a year or more holds over the term the landlord has th'e option to treat him as a trespasser, or as a tenant for another year upon the same terms as those of the lease under which he had been occupying the premises; yet every continued occupation of the premises after the expiration of the term is not a holding over within this rule; and where upon the evidence it is not clear as to whether the tenant was not, with the consent of the landlord, remaining only pending negotiations for a new lease, with the understanding that in case a new lease was not made the tenant should surrender the premises and not be liable for any rent accruing thereafter, the question of whether or not there was a holding over should be submitted to the jury.</p>

<p>Where the plaintiffs had been induced to execute a bond of indemnity to secure from loss the.sureties in a bond given to release an attachment on a stock of goods belonging to a business firm, upon the promise that the goods so released should be held for the plaintiff's indemnity and security against loss,—Held, that the plaintiffs had an equitable lien on such stock of goods for the amount they had been legally compelled to pay by reason of the bond of indemnity, and</p> <p>Held, further, that such lien could be enforced as against the general assignee of the firm for the benefit of their creditors.</p> <p>Held, further, that although an agreement that the firm might make sales from such stock of goods and purchase others to replace those sold, and that those so purchased might in their turn be sold and their place supplied by others, the plaintiffs’ lien to open and shut, to let out and take in such goods, would make the agreement void as against creditors, or the assignee as their representative, yet that such an agreement was not established by evidence that the firm had promised to keep the stock of goods “ replenished ” up to its then value, and that the agreement must be construed according to the positive promise of the firm to “ hold the goods ” for the plaintiffs’ indemnity or security, without considering the additional promise as to replenishing the stock,</p> <p>Held, further, that under the agreement as thus construed, if the firm, without the plaintiffs’ consent or knowledge, disposed of parts of the stock and put in other stock to supply its place, that the latter mingled with the former and became subject to the plaintiffs’ lien.</p> <p>Held, further, that the active members of the firm had authority, without the knowledge of a dormant partner, to create such a lien on the firm property when it was done for the benefit of the firm and to relieve the firm property from attachment.</p> <p>Held, further, that in an action to establish the plaintiffs’ lien on such goods the dormant partner was not a necessary party.</p>

Motion by the defendant at special term to compel restitution by the plaintiff of moneys collected by him on an execution against the defendant on a judgment of the 7fh District Court, which judgment was reversed on appeal by the general term of this court.

Hynes, on the part of the defendants Mary J. McCreery and Lavinia Gay.

The motion was made on the affidavit of the defendant stating that he was a resident of Lancaster, Coos County, New Hampshire, where he had resided for -the past thirty years ; that he had been served with the summons in this action at No. 41 Chambers street, New York City, while he was actually in attendance as a witness on the part of the plaintiff in the suit of Cummings v. Grafton, then actually on trial in the United States District Court for the Southern District of…

<p>Appeal by the defendant from a judgment of the Marine Court of the city of New York, entered upon a decision of the general term of that court, affirming a judgment entered on a verdict in favor of the plaintiff for $145. '</p> <p>No motion for a new trial was made in the court below.</p> <p>The facts are fully stated in the opinion.</p>

Appeal by the plaintiff from a judgment of this court dismissing the complaint, entered on the decision of Judge Van Brunt, after a trial before him at special term. The facts are fully stated in the opinion.

Appeal by the plaintiff from a judgment of this court dismissing the complaint, entered on a decision made by Judge Larremore, after a trial before him at special term. The facts are fully stated in the opinion.

<p>Where the insured, being about to give up a policy of insurance upon his own life, was told by the defendant’s president that if he would keep it alive and could not make payment when due that the company would give him whatever accommodation was necessary, and the insured thereupon abandoned his intention of giving up his policy, and for seven years thereafter the defendant received the premiums after they were due,</p> <p>Held, 1. That although the policy provided that it should continue in force only so long as the annual preminies were paid when due, yet this was a condition that might be waived by parol.</p> <p>2. That the authority of the president to waive such condition would be inferred in the absence of any evidence to the contrary.</p> <p>3. That the receipt by the company for-seven years of the premiums after the day on which they were due, and when the company might have enforced a forfeiture, was an approval and ratification of the act of the president in waiving such condition.</p>

<p>Appeal from a judgment of this court, entered upon the report of George Ticknor Curtis, Esq., referee, to whom it had been referred to hear and determine the issues.</p> <p>The action -was brought against the mayor, &c., of New York City and Frederick and Theodore Killian, to restrain the corporation from selling the plaintiff’s land for the payment of certain assessments therein ; to vacate and set aside a certain decree in a suit by the Killians against the corporation, and to have certain assessments on the plaintiff’s land cancelled and discharged of record. The corporation only appeared in the action.</p> <p>The facts are fully stated in the opinion.</p>

M. Van • Hoesen, J., and a jury, and from an order denying a motion? made upon the minutes for a new trial. This action was brought by Betz to recover damages for levying on and selling goods of the plaintiff in his premises at the foot of 71st street, East River, and for levying on property and interfering with plaintiff’s business at the brewery, at 60th street and 9th avenue.

Court of the city of New York, affirming a judgment entered upon a verdict for plaintiffs rendered at a trial term of that court, and affirming an order of the special term of that court denying a motion made upon case and exceptions for a new trial. The action was brought to recover $1,500 and interest from January 30th, 1876, on policy of fire insurance.

<p>Appeal from a judgment entered against the plaintiff, on an order of the court at special term, Joseph F. Daly, J., dismissing the complaint.</p> <p>The action was brought by Brink to recover damages for a breach of contract of hiring. The complaint alleged that the defendants employed the plaintiff under a written contract for the term of two years from January 1st, 1876, at the salary of $2,000 per year, and that on the 22d day of September, 1876, the defendants without just cause discharged the plaintiff.</p> <p>It appeared by the plaintiff’s testimony that up to May, 1876, the defendants had paid the plaintiff four months’ salary, and that about the middle of hfay he brought an action against his employers for two weeks’ salary, and afterwards brought several other actions to recover other semi-monthly-installments- of salary, which he claimed was due from his employers. One of these actions, it also appeared, brought in a District Court, resulted in a verdict and judgment for the plaintiff, which judgment on appeal to this court had been reversed, on the grounds that the justice before whom the action was tried erroneously admitted parol evidence as to the time of payment of the salary, and that under the written agreement alone plaintiff had no cause of action for his salary until the expiration of the year. It appeared also by the plaintiff’s testimony that he had during the time he was employed, consumed time in attending court, consulting his counsel in connection with these actions, had compelled the book-keeper of the defendants to attend in court as a witness, and had talked about his, the plaintiff’s suits, with the other employees of the defendants, as well as with salesmen and members of firms competing in business with the defendants, but that he did not think he was thereby injuring defendants. The plaintiff was asked several questions by his counsel as to his motive in suing his employers, which were ruled out by the court, and to this ruling and to the dismissal of this complaint exceptions were taken by the plaintiff. Defendants put in evidence the papers in the different actions brought by plaintiff.</p>