Volume 7 — Jones & Spencer's New York Superior Court Reports

This action is brought to recover the eighth and last instalment upon a contract entered into by the defendants through the school trustees of the Tenth-ward of the city of New York, with the consent of the Board of Public Instruction of said city, with Alonzo Dutch, for the erection of a school-house. By the terms of the contract, it was to inure to the benefit of the Mayor,. Aldermen and Commonalty of the city of New York.

These are appeals from orders sustaining demurrers to the complaints, with leave to the plaintiff to amend. Held: for the purposes of that action, to be sufficiently represented by the directors; but the fund involved, was small, and it was obvious that the whole of it would be absorbed between two classes of preferred stockholders; but the court held expressly that the inferior class of preferred stockholders were not sufficiently represented…

The plaintiffs, constituting the firm of Samuel Raynor & Co., complained as follows : “That on or about the 11th day of January, in the year 187.0, at the City of Yew York, the defendant made Ms certain promissory note in writing, bearing that date, whereby he promised, three months after the date thereof, to pay to the order of William Wallace Perkins, two thousand dollars for value received, and delivered said note to said William Wallace Perkins, by whom the said note…

The action was brought against James F, Keyes, as maker, and against Christopher Keyes, as indorser of a promissory note held by plaintiffs.

The action was in equity to set aside a sheriff’s sale of real estate under execution, his subsequent deed to Joseph Kelly, the purchaser, a deed of the latter to the defendant, Emma Weeks, and a mortgage from her to the defendant, Joseph W. Frazier, and a deed from Emma Weeks to defendant Van Alstine, upon the ground of a fraudulent conspiracy to sacrifice the property and to obtain the title to and the possession of it for the defendants.

Exceptions ordered to be heard at general term. In this case a verdict of two hundred and sixty-nine dollars and sixty-seven cents was directed for the plaintiff, at the trial term, exceptions to be heard in the first instance at general term, and judgment to be meantime suspended. The plaintiff moved for judgment. No testimony was taken, but the case was tried upon admissions made by the respective parties.

Appeal by defendants from a judgment, and from an order at special term, denying a motion for a new trial. The action was commenced in March, 1874, for a perpetual injunction to restrain the defendants from using a trade-mark, to wit, “Captain S. Pepper’s Extra Signal Oil,” and for damages for their alleged previous wrongful use of the same. The findings of the judge were as follows : 1.

Appeal by the plaintiff from a judgment in favor of the defendants for seven thousand nine hundred and ninety-six dollars and forty cents. On March 24, 1869, the plaintiff was the owner of eleven thousand six hundred and seventy-nine bushels of oats, then on storage in certain public stores belonging to Messrs. Scott & Company, located at the Atlantic Bocks in the city of Brooklyn.

<p>Exceptions ordered to be heard in the first instance at the general term.</p>

<p>1. MEASURE OF DAMAGES.</p> <p>1. Lessor and lessee.—Hotel.</p> <p>1. Breach of covenant to put in possession,</p> <p>a. When a lessor owning a building and being about to erect a new one adjoining it and to be connected with it, leases the old one and the one to be erected, for hotel purposes, covenanting to make certain repairs in some of the rooms in the old building and to finish the new building (which should contain a certain number of rooms), by a specified time, and that such rooms should be ready for occupation, and possession thereof should be given by such specified time, and the rooms were not ready for occupation until some time after the specified period,</p> <p>Held,</p> <p>the evidence showing that rooms in a hotel, both furnished •and unfurnished, have their value for use, varying with certain periods of the year, which is known and provable, that,</p> <p>1. The lessee's measwre of damages was the proved value of</p> <p>the use of furnished rooms for such of the rooms for which he had furniture, and for the others the proved value of unfurnished rooms.</p> <p>a. This measure is not open to the objection that it involves the allowance of contingent profits for the use of the furniture, or of profits contingent on the use of the hotel by guests.</p> <p>3. The allowance for the value of the use must be varied according to the season of the,year.</p> <p>H. LESSOR AND LESSEE.</p> <p>1. Breach or covenant by lessor to repair, to restore, to put in order, or to replace old appurtenances with NEW.</p> <p>1. Option of lessee.</p> <p>a. He has the right to make the repairs, &c., being judicious and reasonable in his expenditure, and recover the expenses from the landlord,</p> <p>or</p> <p>Omit to make the repairs, &e., and sue for his damages.</p> <p>HI. ESTOPPEL.—WAIVER.</p> <p>1. What will not operate as.</p> <p>a. The fact that a pa/rt/y who has an interest in having certain work well done, and the materials furnished therefor of a certain quality, stands by and sees work done and materials used of a character inferior to that called for, will not operate as an estoppel or waiver of his light to thereafter object, where it does not appear that the prn'ty has sufficient knowledge to enable him to detect the defects and make the proper objections thereto.</p> <p>IV. CONTRACT.—DELAY IN COMPLETION.—STRIKE OP WORKMEN.</p> <p>1. Dailages caused by, what not a defense to.</p> <p>. a. The fact that a part of the delay which occurred after the-time limited for the completion was caused by a st/rike of the workmen which took place after that time, is no defense to-a claim for damages suffered by that part of the delay.</p>

<p>I. ASSESSMENTS FOR LOCAL IMPROVEMENTS IN THE. CITY OF NEW YORK, INCLUDING THEREIN THE OPENING OF STREETS.</p> <p>1. Courts of equity, their power to set aside such assessments.</p> <p>a. Even though the assessment was originally invalid and void' and the act of 1872 [Laws of 1872, ch. 580, p. 1412] does, not operate to validate it, yet by force of that act as expounded by Lennon v. Mayor of N. Y. (55 JT. T. 361), . courts of equity are deprived, of the power, in suits commenced after the passage of the act, to declare such assessment void, and cancel them of record, and enjoin their collection,</p> <p>UNTIL</p> <p>the assessment is sought to be enforced by the talcing of the assessed property.</p> <p>1. What is not a seeking- so to enforce. a. The entry of the assessment in the office of the comptroller of the city, among the entries of assessments confirmed is not.</p> <p>1. This is not a proceeding for its collection.</p> <p>3. What is not sufficient evidence of proceedings HAVING BEEN TAKEN FOB COLLECTION.</p> <p>a. Admission that “proceedings have been taken towards its collection, ” is not.</p> <p>1. There can be no inference from this, either that the land has been advertised for sale, or that it has been sold, or that a lease is about to issue under Lancs of 1871, ch. 381, especially</p> <p>as the three years which must elapse before advertising for sale had not expired.</p> <p>- 3. Repeal.</p> <p>Act of 1873 has not been reapealed; its provisions have been extended by Act of May 3, 1874, ch. 313, p. 366.</p> <p>H. ASSESSMENTS.</p> <p>1. Jurisdictional questions arising out of proceedings to</p> <p>IMPOSE, EFFECT OF.</p> <p>a. Semble.—The liability of parties assessed can not be affected by nice jurisdictional questions.</p>

<p>In a contract for work and labor, where there is a provision that the work should be completed by a certain date, and be paid for upon completion, and such work is not completed at the time limited for its performance, but is proceeded with afterwards, with the assent of the party for whom the work is being done, a recovery may be had for the work done according to the rate of compensation fixed by the contract.</p> <p>In such a case “time is not deemed to be of the essence of the contract.”</p> <p>When “time is of the essence of the contract,”it must be made to appear so in express terms, and not be left for inference or presumption from doubtful expressions therein.</p> <p>In the case at bar, if the work had not been completed at the time specified, the party for whom it was to be done could have rescinded the contract at that time, and the other party could not have recovered for the work done.</p> <p>■If the party did not rescind, but allowed the work to go on, he must pay for the same at the rates specified m the contract, and if he required it to be completed within a reasonable time, he must give the other party notice thereof, before he can terminate the same.</p>

Verdict for plaintiff, and exception ordered to be heard in the first instance at general term. The complaint averred that a contract was entered into by the defendants and an Indiana Railroad Company, by which the former agreed to construct for the latter its road, for certain moneys to be paid by the latter from time to time.

<p>I. CARRIER.—NEGLIGENCE.—PASSENGER CASE.</p> <p>1. Contributory negligence by passenger, what will not constitute as matter op law.</p> <p>1. Front platform, entering car by.</p> <p>If the car is at rest or on the point of rest although some motion remains, the getting on by the front instead of the rear platform is not, as matter of law, contributory negligence.</p> <p>a. If the evidence leaves it uncertain as to whether the motion was not so great as to make it unsafe for a man of common prudence to get on the car, the question should be submitted to the,jury.</p> <p>2. Negligence by carriers, evidence op.</p> <p>1. The hurrying up of the horses while a passenger is in the act of getting on, and before he is fairly on, is evidence of negligence to go to the jury.</p> <p>H. TRIAL.</p> <p>1. Charge op the judge, construction op.</p> <p>1. The whole charge must be considered and applied to the facts of the case.</p> <p>thus:</p> <p>where there was evidence that at the time a passenger was getting on a car by the front platform, the car was at rest or on the point of rest, and that the driver invited the passenger to get on by the front platform, and the court charged the jury that they should find for the defendant, unless the proof showed that the car was stopped or being stopped, and further charged that the front platform is a place of danger, and the occupation of it, or an attempt to get on by it is prima facie evidence of danger, unless the passenger is invited so to do by a servant of the company,</p> <p>Held,</p> <p>that the qualification as to the invitation must be considered as applied to the case of a passenger attempting to get on while the car was at rest or on the point of rest.</p> <p>a. In this aspect the charge was a more famordble one to the carrier than he had a right to ask for.</p>

This is an action to recover the price of a wagon alleged, in the complaint, to have been “ sold and deliver eel ’ ’ by plaintiffs to the defendant for the agreed price of four hundred and seventy-five dollars.

This is a controversy submitted, without action, under section 372 of the Code. An agreement, in writing, was made on October 1, 1874, between the parties, by which Sohifrer agreed to sell, and Pruden agreed to purchase, a lot of land in the city of New York, for seven thousand dollars, to be paid in cash on delivery of a proper deed to Pruden, containing a general warranty and the usual covenants for assuring to him the fee simple of the premises, free from all incumbrances.

<p>The action was brought to recover three thousand and fifty dollars from defendant, as trustee of a certain surplus fund under an assignment or deed of trust from one Selah Hiler to one George W. Haight, to which defendant succeeded as trustee on resignation of said Haight.</p> <p>The assignment directed the payment of said fund to said Hiler’s creditors “after first paying all legal expenses growing out of said trust.” The claim is for professional services rendered by plaintiff as attorney and counsel to the trustees on the faith and security of the fund, in collecting and securing against adverse claimants the sum of seven thousand one hundred and ninety-two dollars of said fund, and to have said three-thousand and fifty dollars declared a lien thereon, and for payment of the claim and lien from the fund prior to all other payments.</p> <p>Certain issues of fact- were directed to be submitted to the jury which were found in plaintiff’s favor, and thereafter the action was again brought on for final hearing under an order of the court at the special equity term, and judgment was entered in favor of plaintiff against defendant for the amount claimed, directing payment from the fund as claimed by the plaintiff.</p> <p>The case comes up for review (upon case and exceptions), on appeal by defendant, from the judgment.</p> <p>I. Haight was never a trustee under such assignment. He never had, as trustee or otherwise, any title to, or interest in such fund. The pretended assignment was absolutely void on its face, for the reason that it was never acknowledged before delivery, as required by Laws of 1860, ch. 348, § 1. The title of this whole fund is still in Huyler (Hardman v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 Id. 55). “A trustee of a void deed can not claim a lien on the fund for his expenses. It was as though no trust deed had ever been made” (Smith v. Dresser, L. R. 1 Eq. 251).</p> <p>II. If Haight ever was a trustee under this instrument, Dusenbury was not. A trustee can not himself appoint a new trustee, though the new trustee consent (Webb v. Shaftsbury, 7 Bing. 480; Hubbard v. Ray, 7 Hare, 106; Kennedy v. Tumly, 6 Ired. Eq. 399; 1 Edm. Stat. (2 ed.) 682, § 71). If it be answered that Dusenbury acted as a trustee, and is, therefore, estopped from denying it, we reply that these papers were all known to the plaintiff, and all Dusenbury and Haight’s rights under them. A portion of them he drew. He knew all the facts, and the maxim ignorantia juris non excusat is not a harsh rule to apply to a lawyer in his own case. There is, therefore, no question of estoppel which will aid the plaintiff.</p> <p>III. The defendant, as trustee, could not bind the trust estate, nor by any act of his create a lien on it in favor of a third party. This question has been so often passed upon that it may be considered settled (Austin v. Monroe, 47 N. Y. 367; Ferrin v. Myrick, 41 Id. 325; Worrall v. Harford, 8 Ves. 4; Perry on Trusts, § 907; Hill on Trustees, 4 Am. Ed. 879; Hall v. Laver, 1 Hare, 571; Lightfoot v. Kean, 1 Mees. & W. 745; Lewin on Trusts, 561, and cases cited). The case of Noyes v. Blakeman (6 N. Y. 567), does not militate against this docrine. In that ease the attorney was employed by the cestui que trust and trustee, the trustee expressly stipulating against any personal liability, and both agreeing that it should be paid out of the future income of the estate, which, in fact belonged to the cestui que trust. . The judgment as it was, was affirmed by a divided court and by only one majority.</p> <p>IY. The instrument of itself does not create a lien. The language is “to pay all legal and proper disbursements and expenses growing out of said trust.” This, the court holds, created a first lien on the trust fund. The case of Worrall Harford, before cited (8 Ves. 4), contained exactly such a provision, but the court held that the attorney had no lien on the fund, and could look to the trustee alone for his fees.</p> <p>I. Defendant is estopped from attacking the validity of bis trust, or denying he is trustee, or denying his liability to discharge the duties of his trust, the first of which is “ to pay all legal expenses growing out of said trust ” (People v. Norton, 9 N. Y. 176; Hill on Trustees 3 Am. Ed. § 219; Cruger v. Halliday, 11 Paige, 319; Sprigg v. Bank of Mt. Pleasant, 10 Pet. 257; Welland Canal Co. v. Hathaway, 8 Wend. 480; Dezell v. Odell, 3 Hill, 215).</p> <p>II. The clause in the trust deed providing for an accounting between Hiler and his creditors named therein, before payment of their claims by trustees, did not require any attorney who should be employed by the trustee to secure or protect said fund to first account with Hiler, and get his consent to the payment of claim by trustee.</p> <p>III. The plaintiff held an attorney’s lien on said fund for his services in collecting same, which no change of title of trustee of said fund could affect or destroy ; nor did plaintiff ever abandon or give up his lien on said fund for payment of his services (Bowling Green Savings Bank v. Todd, 52 N. Y. 489; Fox v. Fox, 24 How. Pr. 418).</p> <p>IV. While a trustee may not ordinarily make a contract with a third party which shall bind the estate or fund, and is personally liable for his contract with regard to the estate or fund, yet an exception to the rule exists when the estate or fund is in peril, where no funds exist for payment of services to secure or protect it, and where the trustee makes the contract in his representative capacity, and stipulates not to be personally liable in the premises (Noyes v. Blakeman, 6 N. Y. 567; Choteau v. Suydam, 21 Id. 180; Ferrin v. Myrick, 41 Id. 322; Opinion of Freedman, J., Randall v. Dusenbury, action No. 2, special term, November, 1874).</p>

<p> Belief in equity by a married woman who seeks the cancellation of promissory notes made and endorsed by her for the amnwmodaMonof her husband. </p> <p>In the case at bar, the plaintiff, a married woman, made and indorsed five several promissory notes of five hundred dollars each, for the accommodation of her husband; one of which has been collected after judgment, an action commenced upon another, and separate actions threatened upon each of the others. She claims that she is not liable for the payment of either of these notes, and states sufficient reasons that would amount to a valid defense to any action brought against her on the same, and she prays for equitable relief.</p> <p>1. That her signature on the notes be canceled.</p> <p>2. That she be released from all liability by reason of her signature upon them.</p> <p>3. That defendant be enjoined and restrained from commencing or maintaining any action against her on account of said notes.</p> <p>On the demurrer of the defendant alleging that the complaint did not state facts sufficient to constitute a cause of agtion. Held— That although the plaintiff incurred no legal obligation by her indorsement, &c. (Phillips v. Wicks, 36 Super. Ct. 254) and has a valid defense to any action upon them, she can not relieve herself of the obligation in a court of equity. She must wait until she is summoned before a court of law, when her defense interposed will be heard, and her legal rights declared.</p> <p>Under the decisions and under the principles of equity, as adjudicated and understood, nothing appears in the facts of this case that will give a court of equity jurisdiction: The remedy of the plaintiff is perfect, and attainable in a court of law, in her answer to any action brought on these notes or any one of them.</p> <p>The demurrer sustained.</p>

The complaint alleged that the defendant, a member of the firm of Utley & Dougherty, made certain false and fraudulent representations to the plaintiff concerning the value of certain bonds; and thereby induced plaintiff to purchase of said firm several of said bonds, they giving to her a written agreement to re-purchase the same from her at any time within six months, at the price she paid therefor.

<p>assessments.</p> <p>The act of 1858 (Session Laws, 1858, ch. 338) authorized a judge of the supreme court, at special term, to vacate assessments upon the allegation and proof of “any fraud or legal irregulan'ity ” therein.</p> <p>An amendment to this act, by the act of 1874, struck out the words “or legal irregularity,” and substituted the words, “or substantial error,” and a further amendment provided that “hereafter no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but the owners of . property shall hereafter be confined to their remedies in such cases to the proceedings under the act hereby amended.” .</p> <p>In the case at bar the plaintiff seeks to restrain, by injunction, the sale of his property by the corporation, and the collection of the assessment by any other mode or process, thus invoking the equity jurisdiction of the court, for relief, instead of the remedies provided in the act,</p> <p>Held, that such an action can not be maintained. The remedies under the act are adequate to the relief of the plaintiff, and should be pursued by him.</p> <p>SUPERIOR COURT; ITS JURISDICTION.</p> <p>The act of 1874, is not in conflict with the provision of the constitution (art. 6 § 12) which continued the superior court with the powers and jurisdiction that it held and possessed at the time of the adoption of the constitution.</p> <p>The act of 1874, merely affects the remedy to be pursued by the ' person injured.</p> <p>The legislature has always, and rightfully, assumed the power to change the forms of proceedings and remedies, and to limit them to certain tribunals, and any general law affecting the mode of obtaining a remedy, can not be construed into an infringement of constitutional jurisdiction or power.</p> <p>Held, that the amendment of 1874, is a valid and constitutional law.</p>

<p>BUILDING CONTRACTS. • MECHANIC’S LIEN.</p> <p>Any or all of the several provisions of a written contract can be waived by parol.</p> <p>A party may always surrender the benefit or advantage of a provision in his favor, and parties may by a new and independent agreement contract for work or materials, other and different from such as may be specified in the original contract, and this may be done by parol. Where the original contract provided for certain certificates from the architect, &c., as to the work being done and the materials being furnished, &c., &c., agreeably to the contract, such provisions will not apply to or affect, extra work done in accordance with a subsequent parol agreement, unless such extra work is made subject thereto by an express agreement.</p> <p>The findings of a referee upon conflicting evidence should not be disturbed, and especially so, when the contradictions are irreconcilable, and one side or the other must be disregarded.</p> <p>His findings of fact, like the verdict of a jury, will not be disturbed by an appellate court, unless unsupported by, or very clearly against, the weight of evidence.</p>

The action is in trover to recover the value of certain household furniture. It was tried by the court without a jury, and judgment given for the defendant. The plaintiff appeals from that judgment. The findings of fact cover the case, and are substantially as follows: The firm of Cozzens & Bettman, on June 22, 1867, leased from the Credit Foncier of America, a hotel, in the city of Omaha, in writing.

Appeal by plaintiff’s attorney, from an order made in a summary proceeding instituted by her against him. The motion at the special term was made by Mrs. Mary C. Porter, the plaintiff in the action, for an order requring Randolph W. Townsend, her attorney in the action, to pay to her certain moneys collected and received by him, as such attorney, upon the judgment recovered by her in the action, or to show cause why an attachment should not issue against him.

The plaintiff complained as follows : “ That heretofore and at the several times hereinafter mentioned, he was in possession of the premises, in the city of New York, being the third and fourth lofts of factory, on the north side of West Thirty-third street, between Tenth and Eleventh avenues ; that on or about the 5th day of February, 1868, the defendants broke and entered into and upon the said premises, and committed divers injuries to said premises and the personal…

Verdict taken subject to the opinion of the general term. The action was to recover the amount of an assessment for a street pavement. The plaintiff, the owner of a lot of land on Thirty-seventh-street, in this city, made an agreement with the defendant, on November 3, 1870, to sell and convey it to him.

The action was to obtain an injunction restraining the defendants from interfering with a party wall. It was tried at special term in February, 1863, by the late Chief Justice Barbour, without a jury. He made and signed his findings of fact and conclusions of law, but they were not filed during his continuance in office. His term expired December 31, 1873.

<p>Appeal from an order granting defendants’ motion for leave to amend their answer.</p>

<p>This case has had three trials, and this is its third appeal to the general term.</p> <p>Review, by the court, of the questions presented on the former trials and hearings (Moheli, Oh. J.).</p> <p>Two findings of fact, by the referee, on the last trial, are (in the opinion of the court at general term) fully supported by the evidence, and conclusively and properly disposes of the case.</p> <p>These findings are as follows:</p> <p>“That said memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in said memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was at the time of said memorandum or agreement was delivered that the contract for the said rifles was incomplete and only to become perfect upon the receipt, by the defendants, of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the said one thousand rifles were a part and parcel.” “That at the time when the said defendants made, executed, and delivered to the plaintiff the memorandum or agreement in writing, bearing date on Hay 13, 1861, the said plaintiff did not accept the said agreement, absolutely and unconditionally, as a completed contract.”</p>

The action was to recover the amount of a promissory note. The issue formed by the defendant’s answer was tried by a jury. The plaintiff had a verdict, .and judgment was rendered in his favor. The court, granted plaintiff an extra allowance of two and one-half per cent, on the amount of the verdict. The defendant appealed from the judgment to the general term, where the judgment was reversed and a new trial ordered, with costs to abide the event.

This action is against the makers of a promissory note. The pleadings are as follows : COMPLAINT. “The complaint of the above named plaintiff respecfully shows to this court that at the several times hereinafter mentioned, the defendants were partners doing business under the firm name of Andrews & Sandford.

This action is to recover five thousand dollars liquidated damages for breach of covenant. The defendant George M. Hoffman by bill of sale, dated May 1, 1871, for three thousand five hundred dollars, sold to plaintiff the good-will of the butcher, and fish, and vegetable, and provision business, carried on by him at 338 Third Avenue, Hew York City, and also leases of the premises and utensils there.

<p>OFFER OF JUDGMENT—PRACTICE THEREIN.</p> <p>Defendants on the 4th of November, 1874, offered to allow judgment to be taken against them for seven hundred and fifty dollars, with interest and costs, which offer was not accepted, and defendant afterwards answered, contesting plaintiff’s claim for all sums beyond the said seven hundred and fifty dollars.</p> <p>Plaintiff moves for an order that the defendant pay to him the amount of said offer.</p> <p>Held—That since the amendment of § 244 of the code (in 1857), such an application has been and should be granted.</p> <p>This is a substantial right when the answer “ admits part of the plaintiff’s claim to he just,” and in conformity to § 244 of the code; it being in the nature of a right to a judgment, and, therefore, no question arises as to whether a party can appeal from an order affecting it.</p> <p>Appeal from an order of special term.</p> <p>The plaintiff, in his complaint, alleges that he made, furnished, and delivered to the defendants certain sewing-machine covers, drawers, tables, &c., for which the defendants agreed to pay him one thousand two hundred and fifty dollars.</p> <p>The answer admits the making and furnishing of the same articles, but sets up that they agreed to pay plaintiff therefor seven hundred and fifty dollars, and no more, and that they have always been ready and willing, and have repeatedly offered to pay the plaintiff said sum of seven hundred and fifty dollars, but the plaintiff has refused to accept the same.</p> <p>The defendants have also offered to allow plaintiff to take judgment for said sum of seven hundred and fifty dollars, with interest and costs, but the plaintiff did not accept the same.</p> <p>The plaintiff in his complaint also alleges that he did certain other work, and furnished certain other material for the defendants, of the value of forty-one dollars and ten cents, which the defendants deny.</p> <p>A motion under section 244 of the code was made by the plaintiff at special term, that the defendants pay said sum of seven hundred and fifty dollars to him with interest, &c., which motion was denied, and the plaintiff appealed.</p>

The controversy is presented in a case agreed upon, and submitted without action, pursuant to § 372 of the code, and which is as follows : Edward M. Worden claims to recover of the Guardian Mutual Life Insurance Company of Mew York the sum of two thousand dollars and interest thereon from the 2d day of August, 1874.

The action was upon a policy of marine insurance which insured the bark “Lindo,” “at and from Miramichi to a port in Cape Breton, at and thence to New York, with privilege of carrying coal exceeding her tonnage.” The bark sailed from Miramichi, on November 23 1864, for Cape Breton. There were several ports in Cape Breton, viz. : Cow Bay, Little and Big Glace Bays, Schooner Pond, Bridgeport, and Lingan, which were upon open roadsteads.

This was an action for the specific performance by the defendants, the alleged vendees, of a contract for the sale of lands.

The pleadings do not appear in the cas On the plaintiff resting her case the defendant’s counsel moved to dismiss the complaint. The motion was granted, and exception was taken by plaintiff. A case and exceptions having been settled, a motion was made at special term for a new trial. The motion was denied. and it is from the order entered on this denial that the plaintiff now appeals.

<p>demurrer, -counter-claim.</p> <p>The latter need not state pacts sufficient to constitute a DEFENSE TO THE CAUSE OF ACTION SET FORTH IN THE COMPLAINT.</p> <p>The defendant in this case, after a general denial, with some exceptions, attempted to set upa counter-claim in theanswer. The plaintiff demurred to the counter-claim, on the ground “that the same does not state facts sufficient to constitute a defense to the plaintiff’s complaint.”</p> <p>The court below overruled the demurrer, without prejudice to the right of plaintiff to move that the defenses in the answer be made more definite and certain.</p> <p>Held, on appeal, that this demurrer in its present form notifies the defendant that the objections to the pleading are not of a general nature, but confined to the special matter stated therein, namely: the counter-claim,; therefore, the order below must be examined upon the nature of this special ground of demurrer.</p> <p>The code distinguishes between a defense and a counter-claim. It is not necessary that a counter-claim should contain facts sufficient to make a defense, and, therefore, it was impossible for the court below to properly make any other order than that appealed from. It would be clearly wrong in this case, for the court to decide that the allegations did not constitute a counter-claim, because they were not sufficient as a defense.</p> <p>Order affirmed.</p>

This case was argued at February general term, 1875, upon exceptions directed to be heard in the first instance at general term. That general term directed that judgment be entered for plaintiff in the sum of two hundred and eighty-one dollars and forty-four cents. The facts of the case, and the opinions of the judges, appear in this report at page 40.

The plaintiff took out an order to examine himself and other persons as witnesses, under a commission issued to London. The plaintiff who lived in London, was, in fact, the only witness examined. The plaintiff recovering judgment, the clerk in taxing his costs allowed, as a disbursement, the amount paid to the commissioner as fees. The court below ordered a re-taxation, disallowing the commissioner’s fees. The appeal is from this order.

This is an appeal from a judgment of the special term dismissing the complaint. The cause was tried without a jury. The action was brought to restrain the carrying on of business, in the premises on the north-east corner of Fiftieth street and Sixth avenue, in the city oflSTew York, of which the defendant Lynch was owner, and the other defendants tenants, upon the ground that the premises were subject to a covenant reserving the property exclusively for dwelling houses.

This cause comes before the court on exceptions ordered to be heard at general term in the first instance. It is an action to recover damages for an alleged malicious prosecution and false imprisonment. The leading features of the case, as appears from the facts proven at the trial, were as follows : The defendant was doing business as a warehouseman at KTo. 400 Washington street, in this city. Merrill & Tannerhill were the owners of a quantity of cotton in this store.

The complaint is in form for a conversion of certain .railroad bonds with their coupons. The court directed the jury to render a verdict for the plaintiff, and assess the damages at sixteen thousand four hundred and twenty-three dollars, and ordered the exceptions to be heard in the'first instance a,t- general term.

The action is on a promissory note described in the complaint. The defense is want of consideration, the note having been given in settlement of an antecedent debt, and that the party who received it from the defendant fraudulently transferred it to the plaintiff. The court directed the jury to find a verdict for the plaintiff for the amount of the note and interest, to which the defendant excepted.

<p>SPECIFIC PERFORMANCE OF CONTRACT FOR THE SALE OF REAL ESTATE.</p> <p>Jurisdiction or supreme and superior court.</p> <p>Where the eont/raet by its terms was to be performed in New Tori: city, and the lands which were the subject of purchase in the contract, were situated in another State,</p> <p>The superior court, asa court or equity, has the same jurisdiction as the late court of chancery of this State, in actions to compel the specific performance of contracts for the purchase and sale of real estate, where the parties to the action have been brought within its jurisdiction by service of process or otherwise.</p> <p>The late court of chancery exercised such a jurisdiction (see the cases cited in the points of counsel and the opinion of the court).</p> <p>The provisions of the code are not applicable, when land which is the subject of the action lies out of the state (Newton v. Bronson, 13 N. T. 587).</p>

Plaintiff obtained a verdict for five hundred dollars. Defendant moved for a new trial on judge’s minutes. The motion was denied; a stay of all further proceedings on the verdict was granted for thirty days. Defendant appealed to the general term from the order denyingmotion for a new trial. The defendant then moved on affidavits for an order to stay proceedings on verdict, until decision be had by the general term on the appeal.

<p>This is an application by the bail of the defendant for an order exonerating them from liability.</p>

The action was for the sale and delivery under a special contract “of as many pounds of fresh beef,, net weight on the block, as may be called for by the government commissary.” The contract fixed the. price per pound, and the terms and manner of payment.

The action was to recover a sum of money received by the defendant to the plaintiff’s use. The complaint alleged the recovery of a judgment in an action in which the defendant, an attorney at law, was the plaintiff’s attorney; an assignment of the judgment to the plaintiff in this action, and the collection of it by the defendant.

In July, 1870, Ann Gillett (the owner) leased to the plaintiff “all that store on the first floor, known as Ho. 85 Forsyth street, in the city of Hew York, to be occupied by them as a dry goods store, with the appurtenances, for the term of five years from May 1, 1871.” The lease contains a covenant of peaceable and quiet enjoyment. The width of the store was twenty-five feet, and its depth fifty-one feet.

- Appeal from a judgment. The action was to recover against the defendants as the acceptors of a bill of exchange. The defendants alleged that their acceptance was without consideration and for the accommodation of the drawer; and that the plaintiffs received it with knowledge that it was an accommodation acceptance, and entirely upon the credit of the drawers ; and that the plaintiffs paid no consideration therefor, and are not the lawful or bona fide owners.

The action was to recover damages for the breach of a written contract for the delivery of materials for budding. The plaintiff alleged the non-delivery, and claimed to recover the difference between the market and contract price.

Exceptions ordered to be heard at general term. The action was to recover possession of a lot of land in this city. Prior to May, 1854, Michael Burke was the owner of the lot in question. In that month he mortgaged the lot to one Quackenbush. In June, 1855, an action was commenced to foreclose the mortgage, and a judgment of foreclosure and sale was entered December 6, 1855, which judgment was assigned to Mary J. Watson.

<p>MOTION FOR A NEW TRIAL ON THE MINUTES OR A CASE.</p> <p>The grounds on which it is based must appear in the</p> <p>RECORD.</p> <p> Jtule relaxed on appeal. </p> <p>When there is an appeal from the judgment as well as from the order denying a motion for anew trial, and both appeals are brought in for argument at the same time, this rule is relaxed, because the court is in a position to do full and complete justice between the parties according to the exigencies of the case, and without regard to mere matters of form.</p> <p> Buie strictly enforced on appeal. </p> <p>When, however, the appeal from the order denying the motion for a new trial is brought on for argument while the appellant is keeping himself in such position, so that in case of non-success he may prosecute a further appeal from a judgment already entered, or to be entered, the rule will be strictly enforced, and the order below affirmed for the reason that the grounds on which the motion was based do not appear on the record.</p>

The complaint alleges that the plaintiff was duly appointed a deputy clerk of the court of common pleas in and for the city and county of Yew York, and his salary fixed at the sum of five thousand dollars, per annum. That he entered upon and continued to perform the duties of said office to the present time, and was paid his aforesaid salary to June 1, 1871, and also from and since January 1, 1872.

<p>V SHERIFF—TRESPASS AGAINST FOR LEVYING ON GOODS CLAIMED TO BE OWNED BY A. UNDER AN EXECUTION AGAINST B.</p> <p>Í. Evidence as to ownership.</p> <p>a. Proof that A. bought the goods of H. at a time when he was sole owner thereof, is not decisive on the issue of Ads ownership.</p> <p>1. If A. in fact acted on behalf of B. in making the- purchase, then A. would not be entitled to recover.</p> <p>• 6. Proof that A. had means and B. had none, is admissible.</p> <p>1. Questions in different forms tending to show these facts are proper.</p> <p>c. Proof as to-who was in possession.</p> <p>1. Proper on the question of ownership.</p> <p>1. Question designed to call out such proof.</p> <p>The deputy-sheriff who made the levy was asked, “if he saw anybody that was in charge of the place at the time he went to levy ? ” the question was correctly-allowed under a general objection.</p> <p> Answer. </p> <p>The witness answering that he judged the plaintiff’s husband was in charge, not being objected to, does not render the allowance of the question or the reception of answer, error.</p> <p>2. Res gesta.—The defendant having called out the fact that plaintiff’s husband was in charge, plaintiff was entitled to have from the witness who testified to that fact, testimony as to what was said at the time.</p> <p>H NEW TRIAL.</p> <p>1. Motion nor on the evidence.</p> <p>1. Cause for denying.</p> <p>a. That the party did not call the attention of the court to his claim that the weight of the evidence as matter of law called for a verdict in his favor is sufficient cause,</p> <p>m. OPINIONS NOT IN THEMSELVES ADMISSIBLE.</p> <p>1. Where a witness gives to a question, the allowance of which is not error, an answer which is responsive, but which merely states his opinion on the subject-matter inquired of, and no objection is taken to his answer, there is no error calling for a reversal.</p> <p>IV. TRIAL—CONDUCT OF.</p> <p>1. Sustaining objection urged in the middle on a question.</p> <p>a. Not error where the reason for the exclusion does not appear, and the counsel does not claim the right to complete.</p> <p>1. A substantial reason growing out of the usual incidents of a trial, must be presumed to exist.</p> <p>2. Remote evidence.</p> <p>a. Error can not be assigned on this ground under a general objection to the reception of evidence, the subject-matter of which is pertinent to the inquiry.</p> <p>1. A special objection must be made based on the ground of remoteness.</p> <p>8. Unimportant testimony.</p> <p>Exclusion of is not cause for reversal, although the inquiry is pertinent.</p>

The complaint alleges that Ann Powers was appointed administratrix of the estate of William P. Powers, deceased; that she appointed Thomas Kivlin to be her agent in the care and management of the goods, chattels, and credits of said William P. Powers, deceased; that said Kivlin, as such agent, “took the entire charge and management of the goods, chattels, and credits of said William P. Powers, collected all moneys due said estate, and also as such agent assumed to collect,…

The action was to recover a balance of an account for goods sold, &c., for which the defendant was indebted April 10, 1868. The defense was the statute of limitations. Held: then, as collateral security,, payment should be reckoned from the time of their respective maturity and not from their delivery. The term “ payment,” in its legal import, means the satisfaction of a debt, and in no sense could it be said that the debt was satisfied until the notes were paid.

<p>I. LITERARY PROPERTY.</p> <p>1. Titles to books, plats, engravings, &c.</p> <p>1. Words which in their ordinary and universal use denote the virtues, such as “Charity,” “Faith,” can not ordina/rily he appropriated by any one as a title or designation for a book, play, &c., written, &c., by him, treating or enforcing, symboliz- • ing, &c., a virtue, to the exclusion of any other person who may write, &c., a book, play, &c., treating upon enforcing, symbolizing, &c., the same virtue.</p> <p>a. Bad faith, &c.—There may be cases where a title is made use of in bad faith, or to promote some imposition, or to inflict a wrong, when a court of justice should interfere to prevent its use or to compensate a party who has in consequence sustained an injury.</p>

<p>l. PLEADING.</p> <p>1. Where a defendant relies on certain facts which can constitute a defense only as connected with the basis of the cause of action, he must in his answer distinctly aver and show such connection.</p> <p>1. APPLICATION OF RULE.</p> <p>Plaintiff brought an action against a common carrier for the non-delivery and loss to her of a certain case of merchandise, delivered to it at a certain time. An answer averring that plaintiff did deliver baggage and merchandise at the time, with the intention of being smuggled, and that on her arrival at the port of New York, she did smuggle ashore from the steamer large quantities;' which formed part of her baggage, does not comply with above rule. It is lad, as not distinctly averring that the specific case for the loss of which the action was brought, and which formed the basis of the cause of action, was shipped with such intention.</p> <p>n. UNLAWFUL INTENTION.—SMUGGLING.</p> <p>1. When not a defense to a gabbier fob the loss of the GOODS.</p> <p>a. It is not when the carrier is ignorant of the intent, has done no act to facilitate it, and is implicated therein.</p> <p>m. COMMON CARRIER.</p> <p>Goods shipped with intent on the part of the shipper to smuggle them:.</p> <p>1. Effect of when the carrier is ignorant of the intent, does no act to facilitate it, and is not implicated therein.</p> <p>a. It forms no defense to an action, by the carrier for the freight.</p> <p>b. It forms no defense to an action by the shipper, against the carrier, for the loss of the goods.</p>

<p>I. EXECUTION—SALE OF REAL ESTATE UNDER.</p> <p>1. Sheriff’s duty as to selling in parcels, &c.</p> <p>1. It is his duty to learn the situation of the property before he-sells, and to sell in obedience to the direction of § 38, art. 2,. title 5, chap. 6, part 3, R. S.</p> <p>1. Quasi-judicial. In some cases the facts will be such that the exercise of the sheriff’s disaretion will be judicial in its nature.</p> <p>a. Vinal.—In such cases an honest exercise of the dis- * cretion is as final as the action in like case of any judicial tribunal.</p> <p>2. Non-performance of this duty, effect of.</p> <p>1. Void and voidable. It does not render the action of the sheriff void, but only voidable, at the instance of the aggrieved party.</p> <p>2. Purchaser. If the non-performance had given cause for setting aside the sale, such will be its effect as against a purchaser who had notice of the non-performance, and much more against a purchaser who had requested and led the sheriff to make the sale in the forbidden manner.</p> <p>3. Sale in one parcel, effect of.</p> <p>1. If the facts were such that the sheriff might have so exercised his discretion as that but a part of the lot would have been sold, and he did not exercise his discretion at all, but relied on the purchaser for information ; semble, the sale should be-treated as invalid.</p> <p>1. What facts call fob the exercise of discretion.</p> <p>a. Semble. An execution for one hundred and seventy dollars, and a lot thirty-seven by one hundred, would.</p> <p>b. Query, whether the sheriff could exercise any discretion if the lot was in the city of New York, and was twenty-five by one hundred. .</p> <p>c. Query, when there is erected on one lot in the city of New York, twenty-five by one hundred, two buildings separated by a space of twenty feet, both occupied as tenement houses, each independent of the other, and each having a rental as large as many houses occupying full lots, and the entrance to the rear house being through an alleyway on the side of the lot passing for a part of the way under the beams of the floor of the second story of the front building, and it being the most advantageous mode of selling, so as to make the property produce the most, to sell the houses separately, it is doubtful whether the statute gives the sheriff power to malee a sub-division.</p> <p>4. Setting aside sale.</p> <p>1. Inadequacy of price.</p> <p>1. This, of itself, although it is so great as to be at least on the verge of a presumption that there was in the conduct of the sale some undiscovered violation of plaintiff’s rights, is not enough.</p> <p>1. There must be some other circumstance in addition,</p> <p>a. But great inadequacy has refined the ingenuity of learned judges, in extracting from the facts sufficient to justify annulling the sale (numerous cases cited).</p> <p>1. What circumstances sufficient.</p> <p>a. The fact that the attorney for the judgment plaintiff furnished the description by which the property was sold, and himself became the purchaser, is sufficient.</p> <p>2. Purchaser when trustee eor the owner.</p> <p>1. When the purchaser is the attorney for the. execution plaintiff, and he has managed or controlled a part of the preliminaries to the sale,—e. g., furnishing a description of the property by which it was sold,—he will be deemed to hold the property as trustee for the owner.</p> <p>3. Defective description.</p> <p>When the description hounds the property, with one exception, by lots on a map, not stating where a map was, the excepted boundary being a lot stated to be now or late the property of Van Siller, and gives no alleged quantity of land offered for sale, it has not the quality of common certainty for the purposes of the notice of sale required by the statute.</p> <p>4. Laches, <6c., on the part of the owner does not relieve his trustee from the fulfilment of the trust.</p> <p>II. REMEDY OE OWNER.</p> <p>He may either</p> <p>1. Move in the action in which the execution was issued</p> <p> or </p> <p>■3. Bring an original action in equity.</p>

<p>Appeal from judgment for plaintiff on report of referee.</p>

J. , the agent of M., who was the owner of certain premises consisting among other apartments of a basement, leased to the defendant, The Kings County Fire-Insurance Company, the front part of the basement to be separated from the rear part by a partition running across the basement, mid-way between the third and fourth windows in Liberty place, with a door about mid-way of said partition, to be used by the tenants-who might occupy the rear part of the basement, and who were…