Volume 7 — Robinson's Louisiana Reports

<p>Motion to dismiss an appeal for neglect to make a case in time.</p>

<p>1. The Code of Procedure gives to the decision of a referee to whom all the issues are referred, the same effect as to that of a single judge. It orders judgment to be entered upon it in the same manner, which is done by the clerk. The entry of the judgment being therefore merely clerical, no opposition can properly be made to it; hence it maybe entered without notice, or leave of the court.</p> <p>2. It is improper for a referee to deliver two documents, each of which purports to be the original of his report, to both parties, even if they are duplicates; as it leads to confusion; but if a paper annexed to the judgment roll as the referee’s report, be that which was first delivered by the referee, and the two papers are substantially the same, it forms no ground for setting aside the judgment,</p> <p>3. It is no ground of objection to a judgment, that it does not expressly adopt the findings of the referee upon the facts and law as the court’s. The Code declares the referee’s findings to be those of the court, and there is, therefore, no necessity to reiterate them. Assuming the referee to take the place of a jury, it never was deemed necessary nor even customary to repeat, in the judgment of the court, the findings of the jury in their verdict upon particular issues.</p> <p>4. Even if a referee’s report, which merely says, that the plaintiff is entitled to recover, is to he construed as only advisory, so as to appear to require a ratification hy the court, instead of imperatively adjudging that he do recover a specified sum of money, it may be corrected by amendment, where his intention is plain.</p> <p>5. Whether the report of a referee who undertakes to give a contingent judgment for one half of his fees to the party who shall pay the whole, be or he not void pro trnto, the judgment itself should be entered according to the referee’s decision, and independently of any subsequent acts of the parties in pais.</p>

<p>1. This court, as a court of equity, ought not to enjoin, by order, lessors from taking summary proceedings to dispossess their lessees, pursuant to a covenant contained in the lease of the premises in question, whereby the latter agreed to surrender possession upon ten days’ notice, at any time before the end of the term, and a notice given in pursuance thereof, even if such covenant have been waived by parol. Although, under such a covenant, the refusal of the lessees to remove may have been a mere breach of it, and a notice pursuant to it could not terminate the lease, or if it could otherwise have done so, .the parol agreement prevented its effect, and therefore the officer before whom proceedings were taken would have no jurisdiction, the remedy at law was ample and perfect, by writ of prohibition.</p> <p>2. This court should not, by order, enjoin the defendants, who were lessors, generally from interfering with the possession of the plaintiff, where there is no allegation in any of the moving papers that the defendants threatened or intended so to interfere, otherwise than by such summary proceedings.</p> <p>3. JEstcrppeU in pais are based simply upon certain rules of evidence, whereby,, in consequence of certain matters having occurred, a party is precluded from availing himself of certain facts, or a certain claim or defense, which he would be otherwise entitled to rely upon; and they are the same in actions at law and suits in equity.</p> <p>4. The mere apprehension, by a plaintiff, of the defendants being about to commit certain acts, without proof of circumstances prima facie, at least, warranting it, does not justify this court in making an order enjoining them from committing such acts.</p>

<p>Appeal from an order made at a special term, vacating and setting aside a judgment as to the defendant Jacobson, and the execution issued thereon and the levy upon his property.</p> <p>The plaintiffs recovered a judgment against the defendant Jacobson and one David E. Horanson, for $973.08, on the 6th of December, 1864. The judgment was entered upon an appearance and offer to allow judgment, made by one Alfred Vanderwerker, who signed himself “defendants’ attorney.” The summons and complaint, appearance, offer, its acceptance, proof of service, and the judgment, were all of the same date. The attorneys for the plaintiffs and Vanderwerker occupied the same offices. The defendant J acobson moved to set aside the judgment, so far as it affected him, stating, in an affidavit, that he never purchased any goods from the plaintiffs, nor owed them any money; that he never was a partner with the defendant Horanson ; was never served with process in said action; never authorized Vanderwerker, or any other person to appear for him in said action; never saw or heard of Vanderwerker; and never knew of the existence of a judgment against him until the sheriff levied on his goods, in May, 1866. The plaintiffs took no action upon such judgments for over two years, although all the time the defendant lived and did business in the city of Hew York, where the plaintiffs resided, and was abundantly able to pay the judgment. •</p> <p>Ho affidavit was produced by the plaintiffs from Vanderwerker, or any attempt made to prove his authority to appear for the defendant Jacobson.</p>

Appeal by the defendant from a judgment entered upon a decision of the chief justice, by whom this action was tried, without a jury. There were three causes of action stated in the complaint, as follows: First.

This was an appeal from an order made in November, 1866, at special term, refusing, to open and vacate a default and inquest, findings of fact and conclusions of law contained in a decision of the judge of the court at special term, and all proceedings therein, and to set aside the same for irregularity and a mistrial of the issues, and to stay proceedings until October term, until the return of a commission issued by the plaintiff, upon an application of the defendants, for…

<p>1. Proceedings supplementary to execution are a substitute for creditors’s bills, and to some extent, in the nature of those, suits in equity.</p> <p>2. The judgment creditor, in both modes of proceeding being obliged to exhaust his remedy at law, in order to entitle him to equitable relief, the ultimate decision of the court or judge is in both, res judicata upon the facts. Hence, whenever such adjudication has been made, no order for the examination of the debtor should be granted, unless the moving affidavits show that he-has subsequently acquired property; or an-alias execution has been issued and returned nulla dona; or new facts, which have come to the knowledge of the appellant.</p> <p>3. But where, before any such adjudication is made, the proceedings are voluntarily withdrawn from the consideration of the judge, and terminated, in Untóte, by the mutual consent and agreement of the parties, they constitute no bar to proceedings under a second order.</p>

Appeal by the defendant Falconer, from an order made at a special term, referring this action to Eobert C. Hutchings, Esq. to hear, try and determine the same.

Appeal by the defendant from an order setting aside a judgment of dismissal. The action was for slander, commenced in January, 1866, find issue joined therein, in March, 1866. The cause. was never put on the calendar by the plaintiff, or noticed for trial by him. In September, 1866, the defendant put the cause on the calendar, paid the stenographer’s fees, and noticed it for trial.

<p>This is an appeal from, an order made at special term, vacating an order of arrest under which the defendant had been arrested and held to bail in $2500. The action is for damages for fraud and deceit on the part of the defendant, in representing one J. N. Land of Forsyth, Ga. the brother-in-law and a partner of the defendant, as perfectly good, and entitled to credit, whereby the plaintiffs were induced to sell him groceries, on a credit to the extent of $2560.74, of which $2260.74 remains unpaid. The plaintiffs’ affidavits, on which the order of arrest was granted, set forth a letter of the defendant, dated Forsyth, Ga. November 7th, 1866, containing the representation as to. Land’s solvency; the sale and credit induced thereby; the fact that shortly after the sale, the plaintiffs’ agent went to Georgia, and found that Land -had absconded, and was utterly worthless, and that by common fame he was known to be, and for several years had been without pecuniary responsibility, and unworthy of credit, and that the defendant himself admitted Land’s entire insolvency. The affidavit of one of the plaintiffs also alleged that the defendant was not a resident of this state, but resided at Forsyth, in the state of Georgia.</p> <p>The defendant moved to vacate the order of arrest, upon affidavits amounting to a denial of the plaintiffs’ allegations ; without showing, however, that no cause of action existed. On an order to show cause, the order of arrest was vacated, and the defendant discharged.</p>

This was an application for judgment on a verdict by a jury in favor of the plaintiff on one issue and in favor of the defendant on another. The action was against Frederick G-. Richardson and-David Woods, for the recovery of money only, on their joint and several notes. The defendants answered separately, by separate attorneys, but setting up precisely the same defense.

<p>Motion to change the referee in this case.</p>

<p>Motion for an order directing a debtor of a judgment debtor to pay to the judgment creditor so much of his indebtedness as will be sufficient to satisfy the judgment creditor’s claim.</p>

<p>Demurrer to complaint.</p>

<p>1. On a motion to vacate an injunction order, it is the duty of the court to decide whether the plaintiff, on the motion papers, is entitled to such an order or not, and in cases of doubt, to give the benefit of that doubt to the defendant, and hold that the plaintiff is not entitled to it. The effect of that decision can be no ground for sustaining the injunction order,</p> <p>2. In all cases of doubt, it is the duty of the court to‘vacate an injunction order.</p> <p>3. If by any evasiveness in the defendant’s answer and affidavits, or by admissions therein, either implied or express, sufficient appears to satisfy the court that the plaintiff is entitled to the injunction order, notwithstanding the defendant by his answer and affidavits in words, seemingly, denies the equity of the complaint, and the allegations therein, the injunction may be retained.</p> <p>4. But the court must take the trouble and responsibility of ascertaining and deciding, upon all the papers, whether the plaintiff has or has not established to its satisfaction, that he is entitled to retain the injunction.</p> <p>5. When the plaintiff, in his complaint, alleges a fact on the existence of which his right to an injunction depends, and the defendant in his answer denies it, explicitly, without any evasiveness or admission of any thing therein, to cast suspicion on the good faith of the denial, then, on a motion made upon the complaint and answer, (without affidavits on either side,) the court is not at liberty to say that the plaintiff has established a right to his injunction.</p> <p>6. If, in the opinion of the judge hearing a motion to dissolve an injunction, the plaintiff has otherwise no right to an injunction, the fact that a trial will soon be had will not give him such right.</p>

<p>Motion to open a judgment taken by default.</p>

<p>Demurrer to complaint.</p>

<p>1. An affidavit on which a motion for a discovery of books and papers is made, which merely alleges that there are in the possession of the defendants various letters, receipts and accounts, in the handwriting of the moving party, “ containing evidence in relation to the subject of the action,” and “ to the merits of the action ” is not sufficient to ehable the court to pass upon the question whether the contents of such books and documents are at all material as evidence in regard to any issue in the action. The plaintiff is not entitled to the inspection of all of such books, merely to obtain information how, or in reference to what matters, to get other evidence.</p> <p>1. Nor is it sufficient that such books may possibly furnish such evidence. The documents must be set forth with sufficient precision to enable the court to determine for itself, whether they ought to be produced, as containing material evidence.</p> <p>3. The mere death of a party can give Ms representative no superior right, in respect to a discovery of books and papers, to that which he would have had if living.</p> <p>4. A plaintiff suing as administratrix is however, it seeins, entitled to copies of any accounts rendered by her intestate as agent, and to sworn-copies of any entries made by the defendants in their books to his credit. Other papers must be obtained by subpoena duces tecum.</p>

<p>1. The distribution of prizes by chance constitutes a lottery.</p> <p>2. An employment to sell tickets in a foreign lottery is illegal, under the ■statute, (1 M. S. 666, § 36,) and no action can arise out of it.</p> <p>3. Even money advanced to an agent, by the managers of a 'lottery, to forward the sale of tickets by him, in this state, cannot be recovered back.</p>

This was an appeal from an order striking out portions of two defenses, (first and second,) and the whole of two others (fourth and fifth) in the answer as false, sham, irrelevant and redundant, and requiring one defense therein (the third) to be made more definite and certain.

This was a motion on the part of the plaintiff to strike out certain portions of the defendant’s answer as “ false, sham, irrelevant and redundant.” Also, to show cause why certain other parts should not be stricken out as “ irrelevant,” and, upon an affidavit of the plaintiff’s attorney, why certain words should not be struck out as false and sham.

This was an action for the partition of certain land in the city of Hew York, claimed by the plaintiff to be held by her in common with the defendants. The complaint alleged the original ownership in fee of such land by Dunbar 8.

<p>Motioh for a new tial, on the grounds of surprise, and newly discovered evidence.</p>

<p>1. If a vendor, on the day specified in the agreement for the completion of the sale, is unable for any reason to perform on his part, it cannot be insisted by him, that the time specified was of the essence of the contract; or that the omission of the purchaser to demand a deed on that day, will excuse the vendor performing, afterwards.</p> <p>2. Under such circumstances, the time mentioned in the contract, for the delivery of a deed, is not, as respects the rights of the purchaser, an essential part of it; or if it is, performance by him on that day will be excused, by the inability of the vendor to convey a title free from all incumbrances. A demand of a deed therefore on a subsequent day will be sufficient, and entitle the purchaser to a performance of the, contract. An offer to execute the bond and mortgage agreed to be given, and to pay the balance of the purchase money, is unnecessary.</p> <p>8. It is well settled that the vendee of property, under a contract to convey a title free from all inemnlrances, is not bound to take it, if, at the time performance is tendered, there are incumbrances existing upon the property.</p> <p>4. Where, on the day when a vendor offered, and was willing to convey, the premises were in the actual possession of his tenants, for terms not then determined, and were also incumbered by assessments which were unpaid; Held that the purchaser was excused from performance on the day.</p> <p>5. Where a portion of the premises were, at the time performance was tendered by the vendor, in the possession of a tenant who held the same without any prescribed term being fixed, but under a verbal agreement to surrender the possession, upon a sale being made; Held that although this arrangement was terminable at the option of the landlord, yet the tenant was a mere tenant at will, whose tenancy could not, without the exercise of such option, be terminated, except upon a notice of thirty days. That to terminate the tenancy, upon a sale of the premises, it was at least necessary that notice thereof should be given to the tenant; and that until such notice was given, there could be no termination of the tenancy. Per Monem., J.</p> <p>6. Where a receipt for rent, given by a landlord, in January, 1866, acknowledged the receipt of the rent for the premises, in advance to the 1st of August, 1866; Held that proof of a parol agreement by the tenant, to surrender the possession upon a sale being made by the owner, was not competent evidence; it being in conflict with the written contract, contained in the receipt, and tending to vary it.</p> <p>7. Such an agreement by a tenant, to surrender the possession, is not a covenant which will run with the land and enure to the benefit of the grantee ; especially without an express and separate assignment thereof from the lessor; and the grantor, after conveyance, could not remove the tenants for holding over, he then not having the reversion. And the grantee, without such assignment, would take the land burthened with tenures which would deprive him of the possession, or the power of obtaining possession, until the tenancy ceased.</p> <p>8. Such an arrangement with a tenant is a mere personal privilege to his landlord, to enable him to regain possession, upon the happening of an event named, and he alone can exercise it. If he fails to exercise it, and conveys the title without a special assignment of the agreement with his tenant, the latter will be released, and cannot be disturbed until the end of his term.</p>

This was an appeal from an order overruling a demurrer to the complaint. The complaint alleged that the defendant was one of the trustees of the “Washington Medallion Pen Company,” organized under the general incorporating act of this state. That the certificate of incorporation was filed February 10, 1857.

<p>Appeal by the defendant Dearborn from an order made at a special term, directing the- issuing of an attachment against him, unless he submit to an examination in proceedings supplementary to execution, and pay the costs.</p>

<p>This was a motion on the part of the defendant to set aside a judgment which has been entered up against him by default, for • want of an answer; open such default; and to permit him to plead.</p> <p>. The action was brought to recover $1900, alleged in the complaint to be due to the plaintiff from the defendant on the purchase of certain stocks, and the answer sought to be interposed by the defendant, through his father and guardian ad litem, (James M. Pinckney,) simply avers that the defendant is a minor, within the age of twenty-one years.</p> <p>The motion was made upon the proposed answer, (which contains seventeen lines,) an affidavit of the managing clerk of the defendant’s attorneys, stating that on the twentieth day after the service of the summons and complaint, he obtained the appointment of a guardian ad litem, and served a notice of appearance on the plaintiffs’ attorney, and requested him to extend the time to answer, which he declined to do; that, on the evening of the same day, he applied to one of the justices of this court on an affidavit stating that the defendant’s attorneys had been unable, owing to professional engagements, to prepare an answer, and that he désigned to set up the defense of infancy, and obtained an order extending the time 'to answer for ten days. He was, however, unable to find the plaintiffs’ attorney, or to serve such order upon him until after the entry of the judgment. The order so extending the time showed that it was granted upon the affidavit above referred to, and without any affidavit of merits. A paper was read by the defendant purporting to be an affidavit of merits made by the guardian ad litem, which stated that “he,” (not the defendant,) had a good defense, &c. as “ he ” is advised, &e.</p> <p>Affidavits in opposition were read on the part of the plaintiffs, showing that the defendant and his father were bill and specie brokers, occupying an office in Wall street, having the defendant’s sign at the door; that the defendant was, in appearance, of the full age, and so represented himself to be to the plaintiffs’ broker in the transaction complained of, prior thereto, and that he had long transacted business in his own name. Other facts appeár in the opinion of the court.</p>

<p>1. Under an assignment by a husband of certain chattels (household furniture,) to a third person in trust for the sole use and benefit of the assignor’s wife, although it is to be exclusively, possessed and enjoyed by her, if it is to be disposable of by the trustee, for her benefit, in such manner, and at such times, as she may direct, the wife is a mere cestui que trust. The legal ownership, as against every one except the wife, the legal right to the possession of the property, is in the trustee, and he may sustain an action, in a proper case, in his own name, against any one who shall, under color of law, wrongfully and inequitably attempt to disturb him, or his cestui que trust, in such possession.</p> <p>2. The cestui que trust cannot maintain such an action in her own name alone, and without joining the trustee with her.</p>

<p>Motion by the plaintiff for alimony, and an allowance for expenses, in an action for a divorce.</p>

<p>Where a testator had caused his life to be insured by an insurance company, whose charter contained a clause permitting them to “issue policies of insurance upon the life of any person, expressed to be for the benefit of any woman, minor or minors,” which should “ enure to the benefit of such person or persons so expressed, * * independently of the one whose life maybe thus insured, as well as his or her creditorsand the policy of insurance declared the same to be “ for the sole and separate use and benefit of his three children," naming them, the said sum “ to’the said assured, their executors, administrators or assigns;” and he afterwards, by his will, gave and devised the policy to his executors, in trust for certain different purposes;</p> <p>Held, 1. That the children of the person insured, so named, were vested, upon the delivery of the policy, with the entire beneficial interest in the sum insured.</p> <p>2. That such children, and not. the executors, were entitled to the sum insured by the policy.</p> <p>3. That it was the intention of the legislature to remedy a defect in the common law, by the charter of the company, so as to permit a man, while prosperous, to make a certain and absolute provision for his family in case of adversity, and one that should not be liable to any contingency arising from his acts or debts.</p>

<p>An irregularity in the appointment of a referee will he waived by the appearance of a party before him and proceeding with the reference, for several days, without making any objection.</p>

This is a motion by the plaintiff, to continue an injunction.

This was an action for an account from the defendants, who were the factors of one Norton, of the proceeds of sales of certain goods consigned by Norton to the defendants for sale. Subsequently to the shipment of the goods, Norton delivered to the plaintiffs an order on the defendants, which is as follows: “New York, Oct. 4th, 1866. Messrs. Bruce & McAuliff, No. 2 Bowling Green, New York. Gentlemen: Pay to the order of Messrs.

This was an action brought to recover damages for a forcible entry on the plaintiffs premises and carrying away his goods. It appeared on the trial, that the plaintiff hired the premises in question, on the 24th of September, 1866, from one Townsend, whose tenant he was, Townsend hired the room from the defendant’s mother, and was her tenant. His lease expired on the first day of December, 1866, when Townsend quit and surrendered the keys and possession to Mrs. Jones.

<p>1. Where a fund or estate is given in trust for infants, with a valid limitation over upon the death of such infants, the court has no power to break in on the carpus of the gift, for the support, maintenance or advancement of the infants.</p> <p>2. If, upon such a trust, the trustee has not only broken in upon but exhausted the corpus of the fund, such corpus will be regarded as still in existence, because no court has jurisdiction to authorize the breaking in on it, or right to ratify the act of the trustee in so doing.</p> <p>3. A woman, in contemplation of marriage, placed certain securities and stocks in the hands of a trustee, upon trust to convert and invest them, and from the income pf the fund and the accumulations thereof, to pay to the creator of the trust such sums as she might deem necessary for her support during her life, and the support and education of her children, and at her decease * * * to continue the payment of the income, or so much of the income and principal as would be necessary for the support and education of the children of the marriage, until they should respectively arrive at the age of twenty-one years; and whenever either of them should reach that age, to pay to such child one equal share of the principal fund as it should then exist; but if any one of such children should die under twenty-one years of age, leaving issue, such issue to stand in the place and receive the income and share of such deceased child. And in case all the children of the marriage should die before attaining the age of twenty-one years, without leaving issue, then said fund to be paid to the right heirs of the creator of the trust, provided she was then also dead) bnt if fhe iyife should survive the children, then a competent income was to be paid to her during her life.</p> <p>Meld, that the interest of the infants was contingent on their arriving at twenty-one years age. That such of them as should die before coming of age, leaving lawful issue, had. no right to the estate; for in that event, the estate was given to their issue, and not to them. And that it was impossible to say that either of the infants would ever be entitled to any part of the capital; for if they should both die under twenty-one years of age, leaving issue, the estate would go to their issue; and if both should so die, leaving no lawful issue, the estate would go the right heirs of the creator of the trust.</p> <p>4. Seld, also, that the children being still living, and minors, the trustee must be considered as having in his possession the capital of the fund; and that the court had no authority to make any allowance, out of the capital of the fund, to such infant children, for their support and maintenance, there being no income which it could direct to be paid, the same having been already applied by the trustee according to the trust. The trustee was therefore directed to pay the principal of the trust fund into court, to abide the litigation, and subject to the further order of the court.</p> <p>6. The trustee having neglected to keep the fund invested, as directed by the trust, and having mingled it with his own funds, and used it, and claimed to have appropriated the whole of it in a manner not authorized, although for the benefit of the cestuis que trust; Seld that although this was done by the trustee through a want, of proper understanding of his duty, and with a good intent and not through dishonesty or want of fidelity, yet that one who had so failed properly to understand his duties, and by reason of such failure had exposed the fund to the hazard of being lost by his insolvency; who had in fact allowed the corpus to be eaten' up, and kept the fund still exposed to hazard of loss by reason of business vicissitudes, and also exposed by entangling litigation in case.of his decease, should not be retained as trustee, Per Jones, J.</p>

<p>Motion for judgment on a frivolous answer.</p>

<p>1. An action, either at law or jn equity, cannot be discontinued by a mere notice; an order of discontinuance must be entered, on the allowance of a judge.</p> <p>2. Such allowance is always given as matter of course, in cases, where the party would have been- entitled, under the practice prior to the Code, to enter a rule or order of discontinuance, of course.</p> <p>3. The proper method of taking advantage of the pendency of a previous suit ■ for the same cause, is by demurrer or answer. If the objection is not so taken, it is waived.</p> <p>4. This method is pointed out by the Code, and is the same as that which existed, at law and equity, before the Code.</p> <p>6. A motion to stay proceedings in an action until the costs of a former action are paid, will not be granted while such action is still pending; for’until it is ended, in some way, the defendant is not entitled to costs, nor is the plaintiff liable to pay any.</p>

<p>The court will not, in a common law action, in and by an order of reference, give the referee power to compel the production of books and papers.</p>

<p>1. Section 28, of the amended charter of the city of New York, (Laws of 1857, ch. 446,) which provided for the establishment by the common council of said city of such bureaux as they might deem the public interest to require, and the assignment by the former to them, and to the departments and bureaux therein erected, of such duties as they might direct, not inconsistent with that act, and the performance of the duties thereof in accordance with the charter and laws and ordinances of the city; and which also provided that no expense should be incurred by any of the departments or officers thereof, whether the object of the expenditure should have been ordered by the common council or not, unless an appropriation should have been previously made, covering such expense; Held to apply only to expenses to be incurred by a department, or an officer thei-eof.</p> <p>2. There are expenses which may be incurred by such common council directly, without the intervention of a department. Of this character are the expenses of printing, publishing and binding the proceedings of the civic authorities in regard to the obsequies of a deceased President of the United States ; control over the performance of such work, and furnishing materials therefor, not being given in express terms, to any of the departments mentioned in such act, nor vesting in any one of them, as a necessary consequence of the system of municipal government planned and intended by that act..</p> <p>3. The scheme so devised was to provide for the performance of ordinary executive duties, and the incurring of ordinary expenses, necessary to be. performed or incurred in the course of carrying on the city government. The expense in question was an occasional one, incurred for special objects, which arose suddenly and unexpectedly, and was in no way connected with the ordinary and regular administration of the, affairs of the corporation. Per Jones, J.</p> <p>4. For work done, and materials furnished by order of the common council, for such a purpose, the corporation is liable, although no previous appropriation, covering the expense to be incurred, was made.</p> <p>6. Although, by section 28 of the amended charter, the common council is authorized to establish such other bureaux as the public interest may require, yet it is not imperative on them to establish a bureau for the sole and express purpose of giving it cognizance over a special and occasional expenditure. Though they were authorized to establish such a bureau, for that purpose, if they deemed it required by the public interest, the bare fact that they did not do so, is sufficient evidence that they did not deem it so required. Per Jones, J.</p>

<p>Motion to vacate an order enjoining the defendant from discharging through a sewer constructed by the plaintiffs, the refuse of a factory of the former, by means of a branch of such sewer, connected with the works of the defendant.</p>

<p>1. Where the existence of a continuous artificial canal upon the lands of both parties, through which water flows, lies at the foundation of an action, and an order has been made therein restraining the deféndant from interfering with the flow of water in such canal, so as to interrupt it on his own land and throw it .back on the plaintiff’s and direct it into his cellar; such order will be vacated, unless on an application to that effect, the existence of such canal is established.</p> <p>2. Proof of the existence of a natural water-course will not, in such a case, sustain an allegation of that of an artificial canal. Such an action and order can only be sustained in case of such a water-course, and its interruption, by an allegation of its existence, in the pleadings and papers on which such order is sought to be sustained, and proof of such existence and threatened interruption.</p> <p>3. And as the plaintiff could not, under an issue as to the existence of an artificial canal, at the trial, maintain his right to a perpetual injunction on the ground of a threatened interruption of a water-course, he cannot on that ground maintain his right to a temporary injunction.</p> <p>4. The plaintiff may, in such a case, apply for leave to amend his complaint by alleging as his cause of action the existence of a water-course and a threatened interruption thereof by the. defendants; or discontinue his action and commence another, setting forth as the cause of action the existence of a water-course.</p>

This was a motion to amend a judgment for the defendants, dismissing the complaint. This action was one of a class known prior to the passage of the Code of Procedure as an action at law. The issues made by the complaint and answer were tried before a judge and jury.

<p>This was an application made under section 23, title 1, chapter 6, part 3, of the Revised Statutes, for the discharge of the defendant from imprisonment, by reason of the omission of the plaintiff to file his complaint, without any previous demand of a copy or motion to dismiss it.</p>

Motion to vacate an order of arrest. The complaint in this action showed a cause of action for goods sold and delivered. On an affidavit charging fraud in contracting the debt, the plaintiff obtained an order of arrest, which the defendant now moved to vacate, on grounds which appear in the opinion.

<p>This was an appeal from an order denying a motion to appoint a receiver of certain premises in the city of Hew York. In February, 1866, the defendant Blase Lorillard demised such premises to the defendant Hurlburt, for ten years from the first of May following, at the rent of $2500 per annum, payable quarterly, in the lease thereof agreeing to alter such premises according to plans alleged therein to be annexed thereto, but never in fact annexed. The next day after the execution of such lease the defendant Lorillard, in consideration of $10,000 paid him by the plaintiff, assigned to him “ the agreement of lease executed by ” the defendant Hurlburt “ as tenant to ” the defendant Lorillard, “as landlord” of such premises, and all the' “ right, title and interest therein and thereto and to the rents, issues and profits arising and thereafter to arise during the whole term, and to the covenants and agreements therein contained.” And in such assignment the defendant Blase Lorillard covenanted to make all repairs, to pay all sums due on mortgages or for taxes, and to keep such premises insured, and “ guaranteed the performance of the covenants and agreements of the lessee during” such lease. Such lease and assignment were duly certified and recorded. The defendant Lorillard deposed, and he was not contradicted therein, that the arrangement with the plaintiff was in substance a loan to him of the consideration ($10,000) upon the security of such assignment of lease, and that the plaintiff exacted from him the whole amount of the rents, and his guaranty therefor as a consideration for such loan.</p> <p>The defendant Lorillard did not make any alterations of such premises, and the defendant Hurlburt therefore refused to enter under his lease. Lorillard conveyed the premises to a son of his, who conveyed the same to the defendant Emma C. Lorillard, his mother, who is now in possession thereof, occupying the same with her family.</p> <p>The plaintiff recovered a judgment in the Supreme Court of this state against the defendant Lorillard for $657.81, for a quarter’s rent of. such premises, on which an execution has been issued and returned unsatisfied, and he has commenced actions against the defendant Hurlburt for rent due on such lease, which are still pending.</p> <p>The plaintiff deposes, from information, that the conveyance by Lorillard to his son is fraudulent as regards him, and that the deed from the latter to his mother is. also fraudulent. The defendant Lorillard testifies that it was executed in consideration of the release by his wife of her dower in other valuable real estate, which is not contradicted.</p> <p>The premises in question are subject to a mortgage of $10,000 which is now liable to be foreclosed, and to two years taxes. The case at special term is reported 6 Rob. 260.</p>

<p>Motion to discharge from arrest,</p>

<p>Motion to strike out defenses as sham.</p>

<p>Motion to vacate a temporary injunction.</p>

<p>Motion by the defendant for counsel fees and alimony.</p>

<p>1. Although the owner of stock may agree with a broker, that the latter may sell without notice, when stocks fall in price so that the margin does not cover the difference between current rates and the price paid, yet, in the absence of any such agreement, it would be a breach of good faith and common honesty to allow the owner’s property to be sacrificed, without giving him an opportunity to increase his margin and hold the stock for a favorable change in the market.</p> <p>2. The rule that the report of a referee, like the verdict of a jury, in a case of conflicting evidence, is conclusive as to questions of fact, applies to the findings of a judge on the trial of an action.</p>

<p>1. The corporate authorities of the city of New York have power, under the charter, to license hackney-coaches, and to designate such portions of the streets of the city, for the standing places thereof, as they see fit.</p> <p>2. But they are bound to exercise that power with reasonable discretion. No ordinance of the common council can lawfully authorize the creation of a private nuisance; and no such ordinance will justify him Who creates one.</p> <p>S, The continual blocking up, by individuals, of the only doorway of another’s stables, by a continuous line of carriages in front thereof, is a nuisance, which can not be justified under an ordinance setting apart and designating a certain portion of a street as a hackney-coach stand; and will be restrained by a perpetual injunction.</p>

Motion to amend the complaint, in an action for a divorce on the ground of adultery.

<p>1. In an action for damages for a fraudulent warranty made by the defendant on a sale of property to the plaintiffs, the court will not, on motion, compel the defendant to discontinue an action brought by him in another court, since the commencement of the one in which the motion is made, for a part of the unpaid purchase money of the property; or to stay proceedings therein until the determination of the first mentioned action.</p> <p>2. This CQurt has no authority, by an order made in an action pending therein, to stay a defendants’ proceedings in another court; nor can it deprive.him of his right to select his own tribunal for the trial of the cause of action which he claims to have against the plaintiff in the action pending in this court, unless it be identically the same with that in the action in such other court.</p>

The cause of action in this case, as set forth in the complaint, is two fold; first, that the defendant as agent of the plaintiffs, received from the plaintiffs a certain sum of money to pay the expenses of the plaintiff at the city of Chicago, but nevertheless to hold the same until actually applied to such payment, subject to the.control and direction of the plaintiffs; second, that the defendant as agent of the plaintiffs, received certain moneys of the plaintiffs to be…

<p>1. The act of the legislature, “ to prevent extortion by railroad companies,” passed March 27, 1857, does not apply to city railroads, incorporated under the general.act of 1850, whose fare for the transportation o’f passengers is fixed or regulated by contract with the city authorities bestowing the grant.</p> <p>2. If a city railroad company secures a charter allowing them to receive a fare of five cents for each passenger, at a time when specie is the lawful currency, and subsequently the general government issues a paper currency, which enhances the value of the original fare, the company will be justified in advancing the fare to six cents, when paid in paper.</p> <p>3. The act of Congress, passed in 1864, (Stat. at large, 38th Cong. p. 485,) justifies a company in adding the additional cent to the fares, even if the paper currency had not depreciated, the original fare; and passengers are bound, if they wish to ride in the cars of such company, to pay such additional cent, when demanded.</p>

The order in this case denied a motion to remove the cause from this court into the Circuit Court of the United States.' The petition upon which the motion was founded stated that the defendants were a corporation created by the- laws of the state of Connecticut, and had its principal office, for the transaction of its business, at Hew Haven, in that state; that the meetings of its stockholders, and the sessions of its directors, were held at Hew Haven, in which city the…

<p>Appeal from an order granting a new trial.</p>

This action, was upon two promissory notes for $3000 each, dated April 10, 1850, payble eight months after date to the order of H. B. Tebbets, and made by “ J. Howard & Son,”of whom the defendant was survivor. The complaint alleged that the notes were duly indorsed and delivered to the plaintiff.

<p>Appeal from a judgment and order.</p> <p>The action was to recover the one sixth of the ferryboat Manhattan, alleged to have been sold by the defendant to Morgan and Ehinehart, the plaintiffs’ assignors.</p> <p>On the trial, before Justice McCuxx and a jury, the plaintiffs proved that in February, 1862, the defendant wrote the following letter to Morgan and Ehinehart:</p> <p>“ Gents. I purchased the ferry steamer Manhattan, about one third larger than the Tallaca, 130 feet long. She is a first rate ferry—one that will command the trade. Her price was $15,000. I get a -per centage of it, which I will explain. Capt. Whilldin says she is a cheap boat. You and Mr. Ehinehart will he in her the same that you are in the Tallaeea—that is $1000, each, * * The "con-</p> <p>sideration for such interest was services rendered by Morgan and Ehinehart for the defendant.</p> <p>A motion was made to dismiss the complaint, chiefly on two grounds ; first, that the contract was void by the statute of frauds; and second, that no sufficient consideration had been shown. The motion was denied, and the defendant excepted.</p>

Motioh to dissolve a temporary injunction. . The plaintiffs, as alleged, are the lessees and in possession of two. parcels of land and land under water, bulkheads, piers, wharves and slips thereon, extending from Thirty-first to Thirty-second streets, and from Thirty-second to Thirty-third streets, and from the Eleventh to ■ the Twelfth avenues, in the city of Hew York) (the present line of bulkhead being 314 feet' easterly of the easterly line of the Twelfth avenue,) upon…

This action was brought by the plaintiff to recover of the defendant damages for the wrongful conversion by him of goods of the plaintiff received by the defendant in a fiduciary capacity. At the commencement of the action an order of arrest was obtained, the defendant was arrested and was discharged on giving bail. The action was subsequently tried, and judgment was recovered, some time in May, 1867, for .$5592.74.

The complaint, verified in the proper manner, was as follows: “The complaint of the plaintiff shows to the court: First. That at the times hereinafter mentioned, she was the owner of a cottage, butcher shop, and room over the same in house, wagon shed and slaughter house situate at Far Rockaway, Queens county, in the state of Yew York. Second.

<p>Appeal by the defendants from a judgment entered on the verdict of a jury.</p>

<p>Where, on a motion for a stay, without security, of proceedings upon a judgment for over $131,700, pending an appeal therefrom to the general term, it appeared that the defendant was worth much more tflan double the amount of the judgment; that his property was of a fixed character, and not liable to much fluctuation or depreciation in price or value; that he was engaged in a permanent business of long standing, and was free from debt; and his real estate, worth about $100,000, was already subjected to the lien of the judgment, and could not be discharged from it; Held, that it was a proper case for staying the proceedings without exacting security from the defendant.</p>

<p>1. Whether, after an order made by a judge, in supplementary proceedings, affecting a substantial right, where the proceedings have been dismissed or discontinued, has been reversed, the general term can make a new order, requiring the judgment debtor to appear and be examined, or direct a single judge to make such an order 1 Quaere.</p> <p>2. Where the affidavit on which a plaintiff applies for an order for examination, in supplementary proceedings, is made by an agent, it must show that the agent is authorized to institute that particular proceeding. Mere agency implies nothing. The nature of the agency must be stated.</p> <p>3. The affidavit must also state that the judgment has been docketed; and that the transcript was filed before the execution was issued.</p>

<p>1. In an action against the mayor, aldermen and commonalty of the city of New York, an order cannot be made, on consent of the defendants, at the trial, to amend the complaint by substituting the Board of Supervisors of the county of New York, as defendants, in place of the mayor, aldermen, &c.</p> <p>2. Even if the power of an assistant of the corporation counsel to bind, by hiS consent or stipulation, in an important matter of substance, the mayor, aldermen and commonalty, as the clients in an action, of his principal, be conceded, yet he has no such power, as the representative of the legal adviser of the Board of Supervisors, to give a valid consent or stipulation, even in an action to which such board are parties; much less, a consent by which they are to be made parties to an action in. which they have not been served with process, nor ever given a direction to appear or defend. No such power is conferred upon the legal adviser himself, by the act of 1857, making the corporation counsel the legal adviser of the Board of Supervisors.</p> <p>3. Although such consent be given by the Board of Supervisors themselves, or their duly authorized agent or attorney, in an action brought against the mayor, aldermen, &c. to recover damages for a personal injury occasioned by the defendants’ negligence, still an order made by the court at the trial, on that consent, by which the Board of Supervisors are substituted as defendants, in the place of the mayor, &c. is invalid and void, because ultra vires.</p>

<p>1. By the terms of a lease the tenant was entitled to a renewal, upon giving notice of his intention to take the same; and provision Was made for the appointment of arbitrators—one by each party—to determine the amount of rent to be paid, and that if .they should fail to agree, then the amount should be fixed by the two arbitrators together with an umpire to be chosen by them. The notice having been given by the tenant, including the name, &c. of his arbitrator, the landlord appointed one on his part. The arbitrators failed to agree as to the amount of the rent, and thereupon appointed an umpire. Before any determination was made, the landlord withdrew and revoked the appointment of his arbitrator, who thenceforth refused to act with the others, and the umpire, alone, fixed and determined the amount of the rent. Meld that the decision of the umpire alone, without the concurrence of either of the arbitrators, did not legally deteimine the amount of the rent which the tenant should pay.</p> <p>2. Meld, also, that the act of the landlord, in withdrawing his arbitrator must be considered as having prevented the meeting of the three, and the probable agreement of a majority of them in an award; and hence that, although the amount of the rent had not been determined by the arbitrators, the tenant could not, without a violation of the principles of equity, be deprived of his right to a renewed lease by this act of his landlord; but was entitled to the lease for such amount of rent as should be found just and proper, upon the trial.</p> <p>3. Accordingly held that it was erroneous, in an action brought by the tenant against his landlord, to compel the execution of a renewed lease, to deny a motion for an injunction-pendente lite, restraining the landlord from removing the tenant by a summary proceeding,</p>

<p>1. In an action for a divorce, on the ground of adultery, brought by the wife against the husband, if the adultery is prima facie established, and it appears that the parties occupy such a position in life that it is the duty of the husband, wholly or partially, to support his wife, out of his income or earnings, he will be compelled to pay to her a suitable allowance, for that purpose, during the progress of the suit, if she has no income of her own.</p> <p>2. Although there is no reason why a wife, who is a professional musician, and has been in the habit of earning enough, in her vocation, to support herself, and is still able to do so, should have an allowance from a husband who is in a.precisely similar condition; yet where it appears ■ that she is rapidly consuming, for her necessary support, the remnant of her former earnings, and is unable to obtain employment, and that her husband is earning more than is necessary for his own subsistence, he may be required to contribute for the support of the wife, and the payment of her expenses, a reasonable-sum out of his earnings.</p>

<p>1. The clerk of the court may amend an entry made hy him in his minutes, so as to correct an error therein, and conform the entry to the decision made hy the court.</p> <p>2, It is not material whether an order made by the court, at the close of a trial, is reduced to form, and receives the sanction of the judge at that time, or at a subsequent period.</p> <p>8. But if the date of the written order is of a period which has not yet arrived, the order is not merely irregular, but absolutely void upon its face; certainly so until the day on which it purports to be dated shall have arrived.</p> <p>4. When the clerk has before him, on taxation, the minutes kept by the deputy clerk, together with his affidavit that the court ordered an allowance to be made to a party, that is sufficient, without any written order, to authorize him to insert such allowance in the judgment.</p> <p>6. Where an order is made on the trial of an action, it is not erroneous to state, in the caption thereof, that it was made at a special term "</p>

<p>This is a demurrer to a complaint upon. the ground of insufficient facts.</p> <p>The complaint sets forth, 1st. The organization of the Fourth National Bank. 2d. The organization of the Washington Marine Insurance Company, and its insolvency. 3d. That while that company was insolvent, and in ignorance of such insolvency, the plaintiffs made and delivered to said company two promissory notes as premiums on t policies of insurance then and there issued. 4th. That after the making of those notes, and before their maturity, and before they were passed to the bank, said insurance company became indebted to the plaintiffs in the sum of $23,000 and upwards, for losses sustained by the property insured in the policies for which said premium notes were given. 5th. That while the plaintiffs and said company were in this condition, (the consideration of said notes having entirely failed,) the insurance company made a loan of the Fourth National Bank of about $30,000, and deposited as- collateral security therefor promissory notes held by said insurance company to the amount of about $50,000, amongst which are the two above described notes. 6th. That said loan has been paid, except about $2400, and that the bank still holds as security on said loan, notes to the amount of about $19,000, all, or a large portion of which are good and collectable; and that the bank now has ample security over and besides the notes of the plaintiffs, still held by it. 7th. That the plaintiffs have offered to pay the bank the balance of said loan, if it would transfer to them said notes and subrogate them to its rights. 8th. That said insurance company is in bankruptcy, and that the defendants, Anthony and Chew, are the assignees in bankruptcy. 9th. That said bank has commenced an action in the common pleas against these plaintiffs, to enforce the payment of the two notes made by them.</p> <p>And the plaintiffs pray for an injunction and accounting, and that the bank be required to collect such collaterals and bring the proceeds, after deducting its claim, into court to be divided, pro rata, between those who shall have paid the same, &c. and, also, for relief generally.</p>

<p>1. In an action to recover damages for injuries sustained by the plaintiff in ■ consequence of the negligence of the defendant in carrying gunpowder through the streets, proof that the defendant had submitted the powder, for examination, to experts—to persons who were familiar with the use of powder in blasting—and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that, is relevant, and should be admitted.</p> <p>2. In such a case, a full opportunity should be given to the party sought to be charged, to show acts of caution and good faith on his part.</p> <p>3. The question, in such an action, is, considering the risk to be run, were as many precautions taken by the defendant as would have been been taken by a man of ordinary prudence, to prevent harm. One of those would have been, consulting experts as to the risk to be run.</p>

<p>1. An appeal does not lie to the general term of this court from the decision of a judge overruling questions put to the defendant, a judgment debtor, on his examination in proceedings supplementary to execution. That is entirely a proceeding before a judge, and not before a court.</p> <p>2. The right of discovery or examination in supplementary proceedings is merely auxiliary to the right of relief, and the first proceeding or action must be terminated by a decree or order on the merits, before it can become res judicata that the defendant had no property when it was commenced.</p> <p>3. An agreement to discontinue an action in equity, even after a defendant had put in an answer making a discovery, could never have been available to prevent the requiring a similar answer in a new action. And the same rule should prevail as to examinations in supplementary proceedings.</p> <p>3. An order was formally entered, in supplementary proceedings, as at special term, declaring that the examination of the defendant should “ be confined to the fact as to whether the defendant had acquired any property, real or personal, since the date of his examination on a former order,” and that all questions put to him, on the examination in question, prior to the date of such former examination were overruled. It appearing that the former proceeding was never terminated by a decision, but was voluntarily abandoned by consent of both parties; Meld that even if such order was an order in an action, the exclusion by it, of the questions w'as improper.</p>

<p>Appeal from an order made at a special term.</p>

<p>1. This court has power, at general term, to modify a judgment dismissing a complaint absolutely, rendered at a special term, so as to add to it a direction to let the cause stand over, to add parties, in a proper case.</p> <p>2. When a plaintiff has merits, and his proceedings are defective merely for . want of proper parties, unless the defendant has made the objection at the earliest stage, so as to enable the plaintiff to discontinue and commence anew, courts of equity universally allow the defect to-be cured; unless there is bad faith on the part of the plaintiff.</p> <p>3. The rule is settled that where a party is entitled to no relief,' as against the parties before the court, and his complaint is dismissed, the appellate court will not reverse the decree to enable him to introduce new parties and make . a new case upon the merits.</p> <p>4. The court on denying a motion to modify a judgment of dismissal, so as to add to it a direction to let the cause stand over, to add parties, on the ground that the amendment would not benefit the plaintiff, may amend the .judgment by making it without prejudice to the right to bring a new action.</p>

<p>1. In May, 1836, A. M. Bruen being seised and possessed of certain premises in the city of New York, he, together with M. Bruen,-executed an instrument, empowering one Clarke, within one month, to compromise certain claims of the United States government against certain other persons, and to sell certain premises, including those in question, for that purpose, and agreeing that he should have the residue of any money, &c. received on such sale beyond what was required to cany out such compromise. A compromise was effected by Clarke with the- governnient, whereby the latter agreed to accept $200,000 in full satisfaction for its claim. Previous to July, 1835, Clarke and R. Dyson and D. 8. Dyson agreed that the Dysons should raise the sum so to be paid to the United States government, and that in consideration thereof Clarke would allow them one third interest in sucl} agreement with A. M. Bruen; and the said Dysons raised that sum. On the 7.th of July, 1835, by the assent of Qlarke, A. M. Bruen, by his attorney, conveyed .the premises, in fee simple, to D. 8. Dyson. About the same time, the Dysons and Clarke executed an instrument under seal, declaring the terms upon which D. 8. Dyson held the same, which were, (1st.) To secure the payment to the government of such sum of $200,000. (2d.) A certain sum ($26,000). paid as a premium for raising the money, to be charged ,on the general fund to be .be raised out of the lots. * (3d.) Such sum of $200,000 was to be repaid, with interest, (áth.) The remainder of the money, or lots unsold, were to be divided or sold, in the proportion of two thirds to Clarke and one third-to the Dysons; such lots to be.sold,or disposed of as might thereafter be agreed on. In July, 1842, D(1S. Dyson presented a petition for his "discharge as a bankrupt, wherein he alleged that a schedule thereto annexed contained an accurate inventory of his property, &c. In such schedule was set down only one third residuary interest in the said premises, and a note appended stated that Clarke was “ entitled to the remaining two thirds interest arising from any excess after satisfying ” the mortgages thereon. In August, 1846, the official assignee in bankruptcy conveyed one third of the premises conveyed to D. S. Dyson, to one Ford, in fee, under whom the defendants claimed, by several mesne conveyances. And in October, 1860, the same official assignee conveyed to the plaintiff, for a nominal'sum, all of said premises so conveyed to D. S. Dyson by A. M. Bruen, pursuant to an order of the proper United States court. In an action for a partition of the premises embraced in the deed from A. M. Bruen to D. S. Dyson; Held 1. That the power of attorney and the agreement between Bruen and Clarke vested in the latter the entire equitable estate and ownership of the former in the premises, upon condition that the compromise should be effected; and that condition was complied with by the agreement to compromise and the subsequent payment of §200,000 by the Dysons under their agreement with Clarke. That by Clarke’s agreement with the Dysons, and Bruen’s deed to D. S. Dyson, and the payment of the $200,000, D. S. Dyson became vested with the entire legal estate; but only for the purpose of enabling Mm to repay tohimself and B. Dyson the §200,000 by them advanced (together with the bonus of $25,000 for raising the money) out of the proceeds of such lands as it should be necessary to use for that purpose, and, after that, for the further purpose of enabling Mm to divide, and by Ms deed, distribute, the remaining lands between himself and Clarke, or, to sell and convey the same. That the'entire estates and interests of Clarke and the Dysons, respectively, in the property, after the payment by the latter of the $200,000, stood thus : (1.) The two Dysons were, in equity, the owners of a charge upon the land for $225,000, which was the first lien thereon; and they were also the equitable owners of one third of all the land and of its proceeds, subject to that charge. (2.) Clarke was the equitable owner of two tMrds of all the land, or its proceeds, subject, in like manner, to such prior lien or . charge. (3.) The entire legal estate was vested in D. S. Dyson for the purpose of enabling him to satisfy that charge by a sale and conveyance of so much of the lands as should be necessary to accomplish that object, and of mating a distribution of the remaining lands or their proceeds, either by a conveyance to B. Dyson and Clarke of their shares, or by means of a sale and conveyance to others. That the entire estate of D. S. Dyson, both legal and equitable, including, and subject to, the charge, which also ran with the land, was vested in the assignee in bankruptby, as receiver, by the decree in bankruptcy and the assignment to Mm. That the lands could not be partitioned between the plaintiff and defendants without the consent of B. Dyson and the representatives of Clarke; for their interest extended to, and covered every lot and parcel thereof; and each parcel was also hound for the satisfaction of the charge of $225,000, as an entirety." That R. Dyson and the representatives of Clarke were, therefore, not only necessary parties, bat even if they were paities defendants, a decree in partition could not properly he granted, if opposed hy them.</p> <p>' 2. The granting of leave to amend a complaint hy inserting the names of new parties defendants, after the action has been tried and submitted, is discretionary with the court.</p>

This action was brought to recover damages for a tort committed by the defendant. The defendant appeared by an attorney and answered. The issue joined came on to be tried before a judge and jury, and-resulted in. a verdict for the plaintiff. Judgment was entered against the defendant on the verdict, and an execution issued thereon, which was returned unsatisfied. Proceedings supplemental to execution were then taken, against the defendant, and are still pending. .

<p>Motion by the defendant, for a commission to take testimony, and for a stay of proceedings in the meantime.</p>

<p>1. A defendant is not entitled, of course, to a bill of particulars, in all cases.</p> <p>2. Section 158 of the Code prescribes in what cases, and how, a bill of particulars may be obtained, and draws a broad distinction between one class of actions, and all other actions. In that class of actions the defendant may demand a copy of the account; while in all other actions a bill of particulars can only be obtained by special order of the court.</p> <p>3. The class of actions in which the defendant may, of course, demand a bill of particulars, consists of those where the cause of action alleged in the pleading is an account against the adverse party, the items of which have not been set forth in the pleading. In all other cases, the court may order a bill of particulars to be furnished.</p> <p>4. Where the gist of the cause of action stated in a complaint was that the defendant made a certain agreement with the plaintiff’s assignor; that he had broken that agreement, by not delivering a specified number of bonds which he had received, and should, under that agreement, deliver to the plaintiff; and the agreement, the receipt of the bonds by the defendant, the number of bonds which the plaintiff claimed, and a particular description thereof, and the refusal of the defendant to deliver them, were all fully set forth; Held that, being thus set forth, a bill of particulars could not be demanded as of course. . z</p> <p>6. In an action for an account and settlement of moneys and bonds received by the defendant from a corporation, upon a claim of the plaintiff against said corporation, under an agreement to procure a settlement of such claim and pay over to the plaintiff a specified portion of the proceeds, it is wholly immaterial what such claim against the corporation consisted of, or how it arose. The defendant is therefore not entitled, of course, to a bill of the particulars of such claim.</p> <p>6. It is not the office of a bill of particulars- to furnish a defendant with facts whereon to found an affirmative defense in his behalf; but simply, when he is called on to pay an account stated generally in the complaint as amounting to a certain sum, to give him the particular items of that account, so that he may determine as to the correctness of the account, as to what items he will admit, and as to what he will insist on the plaintiff’s proving affirmatively ; and also that he may know what he will have .to contend with, on •" the trial; and also that the general pleading, aided by the bill of particulars, will, in the event of a subsequent action between the same parties, show what items were disposed of in the former action.</p> <p>7. Under the provisions of the Code authorizing the examination of parties to actions before trial, the testimony of a party may be taken before issue joined. The right to such an examination is absolute, and a refusal thereof is not in the discretion of the court.</p> <p>8. The pendency of a motion to make the complaint more definite does not, of itself, prevent the plaintiff from proceeding with the examination of the defendant. Consequently its non-decision, or the non-entry of the order upon.the’ decision, can have no effect on the plaintiff’s right to proceed.</p> <p>9. A judge having granted an order for the plaintiff to show cause why his proceedings on the examination of the defendant as a witness should not be stayed until the hearing and decision of a motion to make the complaint more definite, with a temporary stay, has the power to vacate it, ex pmrte; and if he subsequently makes an order staying the examination of the defendant for ten days, unless a bill of particulars shall be sooner served, the making of such order will be regarded as an ex parte vacatur of the stay previously granted.</p>

<p>1. Where a lease contained a covenant that the lessee would not assign the lease, nor let or underlet the whole or any part of the premises, without the written consent of the lessor; and by said lease the whole of the first floor was reserved to the lessor, with a privilege or use to him for the reception of company, of the front parlor, in common with the lessee ; Meld that even if, by the proper construction of the covenant against underletting, the lessee had a right to take boarders, yet the occupation of the rooms by persons other than the lessee must be in the strict character of boarders. That if one claimed a greater right, he must claim by reason of a right of occupation in some character other than that of a boarder.</p> <p>2. The right to carry on business is not included in a mere right to lodge and be fed. The fact that one is a boarder with the lessee, in such a case, gives him no right to carry on a business; and as he can only get such right as a tenant, under a subletting which is prohibited by the lease, he has no such, right, as against the lessor.</p> <p>3. If such person, without the consent and against the wishes of the lessor, enters the parlor of the house, remains seated there, at the only window, interferes with the window curtains, and refuses to leave the room, on being requested, and occupies and persists in occupying rooms there for the purpose of carrying on his business as a dentist, claiming the right to do so on the ground that he is a boarder of the lessee, the lessor has a cause of action against him, and a remedy by injunction.</p> <p>4. A lessor is entitled to an injunction to restrain the use of premises, by the lessee, in violation of a restriction in the lease; and when such use is by a . person in possession under and claiming a right to such user through the lessee, he, as well as the lessee, may be restrained by injunction.</p>

In this case the complaint sets forth a certain agreement made between the firm of. Fairchild & Eobinson and the firm of Valentine & Go.; that no agreement was made as to any losses that might arise in the prosecution of the business; that no mention was made of any partnership between the parties, but that the agreement was made simply as a method of compensation for the services of Valentine & Co., and in lieu of any fixed commissions therefor.

<p>Motion for leave to amend answer.</p>

<p>1. The claim on the amount of which a per centage can be allowed, under sec. 309 of the Code, is the sum which the plaintiff states in his complaint as being the amount which he seeks to recover.</p> <p>2. If no sum is mentioned in the complaint, but the plaintiff merely ¿seeks and asks for such sum as may be found due him on an accounting, there are in that aspect no data for computing the per centage.</p> <p>3. The “ subject matter involved” within the meaning of section 309 of the Code, is that which is to he directly affected by the action.</p> <p>4. Where the “subject matter” to be directly affected by the action was an aliquot part of the profits made by the defendants out of the transaction alleged in the complaint, and the liability of the defendant to pay such proportion of the profits constituted the dispute between the parties; and the amount of such proportion was the only “ amount involved;” Held that there having been no recovery, there were no data upon which to fix that amount, so that the per centage could be calculated.</p>

The plaintiff is under examination, at the instance of the defendant, as a witness. The examination is being had before trial. The action is for debauching and enticing away the plaintiff’s wife.

<p>Appeal by the defendant from a judgment entered upon the verdict of a jury.</p>

<p>1. The act of the legislature, of April 26,1831, “ to abolish imprisonment for debt,” &c., is not repealed by any of the provisions of the Code.</p> <p>2. An intent to. repeal a previous statute cannot he implied from the fact of inconsistency, when an intent not to repeal is expressed in the later act.</p> <p>3. The city judge, of New íork, has jurisdiction to entertain proceedings under the Stilwell act.</p> <p>4. A commitment under the Stilwell act need not specify what property, money and rights of action the debtor is adjudged to have fraudulently concealed or refused to apply to the payment of the judgment, &c., or to have assigned with intent to defraud his creditors.</p>

This is an application so to modify an order staying- the plaintiff’s proceedings as to permit the plaintiff to enter judgment. The action has been tried, and a verdict rendered in favor of the plaintiff. The defendant, desiring to move at a special term for a new trial, has from time to time obtained orders staying the plaintiff’s proceedings, the last of which is the one for the modification whereof this' application is made.

<p>Motion by the plaintiffs for leave to add parties defendant, and for ¡an injunction and receiver. ,</p>

This is an application to compel the attorney of the defendant to pay the plaintiff a certain sum of money deposited by the defendant with his attorney. The application comes up on an order to show cause, without any name signed to it as attorney. The order to show cause, and the affidavits on which it is founded are, however, indorsed “ --att’ys for plff.” All the papers are entitled in the action. The case as shown by the moving papers is this.

<p>1. It is settled, in this state, that a principal is not liable to one of his servants or agents for injuries sustained through the negligence of such agent or servant, where both are engaged in the same general business.</p> <p>2. When, however, the injury to the employee results from the- actual negligence or misfeasance of the principal,- such principal is liable for the injury,</p> <p>3. To constitute such actual negligence or misfeasance of the principal, actual notice to him of the defect in the materials or machinery through which, or of the unskillfulness, or unfitness of the servant through whose negligence or unskillfulness the injury in question occurred, must be shown; and such notice must he averred in the complaint.</p>

<p>It is improper ón a motion for the appointment of a receiver, in partnership cases, for the court to undertake to determine what is partnership property as between the partners and third persons. If any such dispute arises with reference to any particular property, the proper course to determine it is by an action, either against or' in favor of the receiver.</p>

<p>1. There is no reason for applying to the coart for orders directing judgments to be discharged of record, under the act of May 14, 1845, amending the act of April 18, 1838, “ for the relief of partners and joint debtors.”</p> <p>2. The proper 'course is for the parties to present to the dark the memorandum mentioned in the act of 1845, with such proof of the assignment as can be obtained, and to request him to satisfy the judgment as to the compromising debtor-. If the clerk refuse so to satisfy the judgment, application may then be made to the court for an order directing him to do so; on which application the court will direct to whom, and in what manner, notice of the application shall be given.</p>

<p>Motion for a nonsuit, on the trial of an action brought to recover damages for a personal injury alleged to have been caused by the defendant’s negligence.</p>

<p>1. Where a lessee of premises constructs, at his own expense, under a license from the street commissioner, a vault under the -sidewalk and roadbed in front of the premises, which vault is built as a part of the buildings erected on the land, the inside wall thereof being the outside wall of the house, the the lessor, at the termination of the lease, is entitled to recover possession of • the vault, as a part of the demised premises.</p> <p>2. An uninterrupted possession of the demised premises by the lessor, for over twenty years, is enough, in the absence of any proof of a superior title, to enable him to recover the same, or any portion thereof.</p> <p>3. Upon proving title to the premises, every thing which is collateral to the title will be intended, without proof.</p>

<p>1. In an action brought by creditors of a corporation, formed under the act of 1848, against a stockholder in the company, to recover the amount of their debt, the defendant, first, denied that he was a stockholder; he then admitted that he was a stockholder, but alleged that when he became such, he was induced to do so by certain promises made on behalf of the company. He did not pretend that the company made any such promises as a corporation. Held that although the defendant might have a cause of action against the persons making the promises, the sematters were wholly inter alios acta, and were irrelevant to the issues in the action.</p> <p>2. Held also, that the defendant having admitted the making of certain promissory notes by the corporation, and the recovery of a judgment upon them, his allegation of want of knowledge as to their delivery by the maker to the payees, and of his ignorance whether the company was indebted on them, was immaterial.</p> <p>3. An answer, in such an action, setting out a contract between third parties for the sale and purchase of lands, made before the company was incorporated or existed, and alleging that the purchase was intended to be for the company, is sham and irrelevant, as relating to matters that occurred before the company had any existence, and not constituting any defense, or any matter relating to the case.</p> <p>4. If a purchaser of lands is defrauded by misrepresentations of the vendors, he has a cause of action against them, which is personal to himself, and will not pass by his subsequent assignment of the contract. •</p> <p>8. A pleading is frivolous when there is a decision in point adverse to its suffi,ciency. So if there is a judgment recovered upon promissory notes of a company in which the defendant is a stockholder, it is conclusive upon him.</p>

<p>1. Where a person making application to be naturalized furnishes satisfactory proof of good moral character, of one year’s residence within the United States, and that he is of the age of twenty-one years and upwards, and shows that he was regularly enlisted in the United States navy, where he served as an enlisted man; and that he has been honorably discharged from the service; these facts bring his case within the provisions of section 21 of the act of congress, approved July 17, 1862, so as to entitle him to naturalization by virtue of that statute.</p> <p>2. The provisions of the act of congress embrace the navy as well as the army.</p>

On the 18th of February, 1867, the plaintiff and defendant entered into an agreement with each other, and executed, as' evidence thereof, the following written instruments : exhibit A.' “New York, 18th Feb’y, 1867.' (1000 shares.) We have purchased of O. Q-.

This was an action to recover $6000, the amount of two thousand, shares at three dollars per share, of the ÍTew York and Pennsylvania Oil Company, subscribed for and paid by the plaintiffs in 1864. The plaintiffs allege that they were induced to invest the above amount in the aforesaid company through the false and fraudulent representations of the defendant.

<p>Appeal from an order striking out the defendants’ answer for not appearing and submitting to an examination.</p>

<p>1. The writing of the words “payment stopped,” upon a note payable at a bank, simply announces the intention of the maker that his funds in that IcrnTc shall not be applied to the payment of the paper, and does not necessarily discredit.the note, nor import that he will not provide for it at some other place; especially when it is taken into consideration that the bank is merely the agent of the maker, and, as such agent, cannot be sued if it discloses its principal.</p> <p>2. An indorsement in pencil, of the words “ payment stopped,” upon a promissory note, does not affect the liability of the maker or indorser. Destroying or defacing a written contract does not affect the liability of the parties to it.</p> <p>3; Where payment of a note is stopped, previous to its maturity, the character of the note is fixed, on the day it matures, and subsequent purchasers must take it subject to all equities. Writing on its face “payment stopped,” does not in anywise change the condition of the parties to the instrument, or diminish its value.</p> <p>4. Good faith and common honesty require the holder of a note to disclose to any purchaser that payment has been stopped, as soon as that fact is communicated to him. Hence a bank, whose teller writes upon a note the words “ payment stopped,” when such is the fact, is not liable in damages to the holder, for giving a notice which common honesty required the holder himself to give.</p> <p>6. Where the plaintiff purchased a note, in good faith, before it was due, and thus perfected his right of action against the maker and indorsers, who were perfectly solvent at the time the note became due, and continued so, long afterwards; Held that the plaintiff not haring exhausted his remedy, could not maintain an action to recover damaged for defacing the note.</p>

order adjudging the defendants to be in contempt. A judgment having been obtained by the plaintiffs against the defendants, the defendants, on the 29th of May, 1868, procured from the chief justice, ex parte, a chamber order staying all proceedings on the part of the plaintiffs to enforce the judgment, and all proceedings with reference thereto. This order was served on the plaintiffs’ attorney on the 4th of June, 1868, by serving a certified copy.