Volume 8 — Abbott's New York Practice Reports

<p>Mistrial.—Verdict subject to the Opinion oe the Court.</p> <p>On the trial of an action upon a written contract, questions arose as to its construction—as to the admissibility of evidence—as to whether the acts of the parties did not amount to an abandonment of it—and as to the rule of damages if a recovery were allowed ; and a motion to dismiss the complaint was made, and denied. Exceptions were taken upon either side to the rulings of the court upon these points. The court directed a verdict for the plaintiff for the amount claimed, subject to the opinion of the court at general term.</p> <p>Held, a mistrial, and that a new trial must be had.</p>

Demurrer to the complaint. The complaint contained statements of four causes of action : one for malicious prosecution in behalf of the people, before a justice of the peace, for a crime; one for libel; and two for slanderous words spoken.

This action was brought by Mary Louisa Van Tuyl and others, against Otto W. E. Van Tuyl, Catharine Taylor, and others, for a partition of the real estate of William Taylor, of Rye, Westchester County, deceased. - The plaintiff, • Mary Louisa Van Tuyl, and the der fendants, Sophia Jan Van Tuyl, Maria Elizabeth Taylor, and Isaac Vanderpool Taylor, were his children by a former marriage, and claimed to be his sole heirs at law, and sought in this' action to exclude the…

Motion that complaint be made more definite and certain. • The action was for moneys received.

<p>I. July, 1858.—Motion by plaintiff for receiver and injunction.</p>

Trial by the court. The parties Edward H. Gillilan and James K. Spratt brought cross actions to determine a controversy arising out of their relation as landlord and tenant. The action in the common pleas was brought by Gillilan, the landlord, for rent for the month of April, 1868, and damages for use and occupation during May and June, 1868. It was tried before the court without a jury.

This action was brought by the plaintiff, who was a justice of one of the district courts in the city of New York, to recover his salary as such officer. In a former action brought in the New York Common Pleas upon the same facts the defendants had answered, and the plaintiff’s demurrer to the answer had been overruled.

<p>Bail in Ceiminal Cases.—Dying Declaeations.</p> <p>Even in capital cases, the accused is entitled to be bailed, unless the proof is evident, or the presumption great.</p> <p>Where the prisoner had been twice tried, and on both occasions the jury were unable to agree on a verdict,—Held, that it was a proper case for exercising the power to bail.</p> <p>To lay a foundation for the admission in evidence of dying declarations, it must be shown that the declarant was under the impression of approaching death, and without hope of recovery. It is not enough to show that he was actually in a dying condition, and nodded assent when told that he was.</p> <p>Note.—The recent case of Queen v. Jenkins, determined by the English court for crown cases reserved, in April, 1869 (1 Law Rip. 0. Gas. R., 187), further illustrates this subject, and confirms the doctrine lard down in the case above.</p> <p>• On the trial of Jenkins for the murder of Fanny Peeves, a written declaration of the deceased was put in evidence for the prosecution. The declaration was made on oath to a magistrate’s clerk, about thirteen hours before death. The clerk asked the deceased, before he took down her statement, whether she felt she was in a dangerous state—whether she felt she was likely to die. She said, “ I think so.” He asked, “ Why? ” She replied, “ From the shortness of my breath.” Her breath was ex-trembly short, and her answers were disjointed by it, some intervals elapsing between .them. The clerk then said, “Is it with the fear of death before you that you make these statements ? ” — and added, “ Have you any present hope of your recovery ? ” She said, “None.” The statement, as written out by the clerk, said that, “ I feel that I am likely to die; and I have made the above statement with the fear of death before me, and with no hope of my recovery;” thus omitting the word “ present” before the word “ hope;” but on reading it over to the deceased, she suggested the words “ at present.” She said, “ No hope at present of my recovery.” The word “ present ” was accordingly interlined by the clerk.</p> <p>The other evidence was such that the conviction rested on the admissibility of-this declaration.</p> <p>Held, that it was not admissible. “ The result of the decisions is,” said Kelly, C. 33., “ that there must be an unqualified belief in the nearness of death; a belief without hope that the declarant is to die.......</p> <p>We, as judges, must be perfectly satisfied beyond a reasonable doubt that there was no hope of avoiding death; and it is not unimportant to observe that the burden of proving the facts that render the declaration admissible is upon the prosecution.”</p> <p>Byles, J., who admitted the declaration on the trial, reserving the question, concurred in quashing the conviction. He said, “ In order to make the dying declaration admissible, there must be an expectation of impending and almost immediate death. The authorities show that there must be no hope wnatever."</p>

<p>Parties.—Amendment.</p> <p>In an action against three defendants for a wrong, one of the defendants died pending the action, and a discontinuance was entered as against another. Judgment for the plaintiff having been given, the remaining defendant moved to vacate it for irregularity, and the plaintiff asked to have it amended to stand against the remaining defendant alone.</p> <p>Held, that the amendment should be granted. The power of amendment under the Code, either before or after judgment, by adding or striking out the names of parties, is comprehensive, and includes almost all cases which can arise and call for the interposition of the court.</p>

<p>Question of costs.</p>

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

This action was brought by Andrew Coakley against James F. Chamberlain, sole surviving executor of the last will and testament of Mary Ann Burdock, deceased, Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, Greorge Frederick Burch, and Matilda Augusta Burch.

<p>Motion to vacate judgment.</p> <p>The facts are stated in the Opinion.</p>

<p>Judicial Sale.—Appeal.</p> <p>An order made on a motion to open a judicial sale on grounds not affecting the regularity of the proceedings, is in the discretion of the court, and is not appealable.</p>

Motion to open inquest. In this case, and another against the same defendant, inquests were taken by the plaintiff, which the defendant now moved to open. '

<p>Appeal from an order denying a petition to open a judgment of divorce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order at special term denying a motion to vacate order of arrest.</p> <p>The facts are stated in the opinion.</p>

Trial for homicide. The prisoner, Daniel Macfarland, was indicted for murder in the first degree, for the felonious shooting, vitli malice aforethought, of Albert D. Richardson, on November 25, 1869, in the office of the New York Tribune, in New York city. He pleaded not guilty, and, after a motion made to transfer the case to the oyer and terminer (7 Abb. Pr. N. S., 348), which was denied, the trial took place in this court on the issue raised on the indictment by the plea.

<p>Motion at general term to vacate an order for a new trial.</p>

In this action the plaintiff attached property of the defendants on the ground that they were non-residents. The defendant moved to vacate the attachment on an affidavit alleging that he had an office in the city of New York, and considered that as his place of residence, although he boarded in Newark, N. J., and carried on a factory there.

<p>Examination of Panties.—Commission.</p> <p>A non-resident party is not entitled to the issue of a commission to take his testimony unless the adverse party has given notice of an intention to offer himself as a witness.*</p> <p>The first clause of section 399 of the Code, should be construed to apply only to the case of examination at the trial.</p>

<p>Motion to dissolve an injunction.</p> <p>The facts are stated in the opinion.</p>

The action was brought by P. O’Shea against two defendants, J. B. Kirker and J. G. Shea, for libel.

This was one of five actions brought at about the same time in the Superior Court against the same defendants, by several plaintiffs. Between the 13th of April and the 1st of July, 1858, attachments were issued in the several actions against the property of the defendant Wilson, on the ground that he was not a resident of this State. The defendants moved at special term to discharge the attachments on the ground that he was a resident.

Supplementary proceedings. The action in which these proceedings were taken was brought by Rufus K. Terry against Peter II. Hultz. The facts are. stated in the opinion.

Habeas corpus. It appeared on the return to a writ of habeas corpus issued on the petition of James McCabe, that the petitioner was held uuder authority of the usual commitment to the House of Refuge. The commitment stated tlie age of the petitioner to be under sixteen years.

Demurrer to complaint. This action was brought .by Blanche Arnold, an opera singer, against Caroline M. Bernard, a manager of opera, to recover for professional services.

<p>Attachment.—Partnership Property.</p> <p>Upon an attachment against the property of one of several co-partners, the sheriff may seize the leviable property of the co-partnership, take it into possession, and sell the defendants’ interest in so much thereof as necessary.</p> <p>The cases of Stoutenburgh a. Vandenburgh (7 Sow. Sr. 72., 229), and Sears a. Gearn (7 76., 383), overruled.</p> <p>An attachment in so far as it relates to chattels, differs in nowise from an execution as to the rights and duties of the officer in levying it.</p>

<p>Motion to set aside the judgment in the action, and all subsequent proceedings.</p> <p>About 2 P. M., of December 31, 1868, Mr. Justice E. i Dabwih Smith, before whom this cause was tried without a jury, filed in the Monroe county clerk’s office his findings of facts and conclusions of law, having before that delivered an opinion (reported in 7 Abb. Pr. PT. iS., 265) on the questions involved. Immediately thereafter a judgment in accordance therewith was entered, by which, among other things, it was adjudged that those known as the “Ramsey board” were duly elected directors, and that they and the other defendants,, except Herrick and Burns, recover costs against the defendants comprising the Fisk-G-ould board ; that the plaintiffs recover costs against the company; that all suits and proceedings involving the matters litigated in this suit be perpetually stayed; that the board declared elected be let into immediate possession; that the receiver ad interim forthwith deliver over to them all property and effects in his hands belonging to the corporation, and referring it to Hon. Samuel S. Seldem, to pass the receiver’s accounts, and ascertain and report what would be a reasonable extra allowance to the defendants to whom costs were awarded. When Judge Smith was about to file his decision, an application was made to him by Mr. Martindale, counsel on behalf of the unsuccessful defendants, for a stay of proceedings to enable them to be heard on the settlement of .the findings, and to perfect an appeal, which motion was denied.</p> <p>As soon as this judgment was entered, the "board declared elected met at Albany, and took formal possession of the offices and property of the company.</p> <p>About five o’clock that afternoon an ex-parte order, granted by Judge George G. Barnard, was served upon the attorney-general and the attorneys for the prevailing parties, commanding “ that all proceedings upon the decision of Mr. Justice E. Darwin Smith be stayed until the findings of facts and conclusions of law of said justice therein be served upon the attorneys for all the parties therein, together with notice of settlement thereof; and further ordered that judgment be not entered herein until the settlement of such findings and conclusions upon due notices of settlement to all parties therein.” And at about 3.15 p. m. the receiver was telegraphed from New York by Deputy Attorney-General Hammond that a stay of proceedings had been served upon the attorney-general, and at about 11 p. m. he was served with a copy of the above order.</p> <p>At two o’clock of the morning of January 1, a.certified copy of the judgment was delivered to the receiver.</p> <p>' During the forenoon of January 1, another ex-parte order, granted by Judge Barnard, was served, staying all proceedings under the judgment, until an order should be entered upon a motion to set it aside. And an appeal was perfected, and notice thereof was served.</p> <p>In the mean time, the receiver surrendered the keys of the vaults of the company to Mr. Ramsey, in pursuance of an order made by Mr. Justice Peckiiam, in a summary proceeding instituted to compel the surrender thereof.</p> <p>In addition to affidavits showing these facts, an affidavit of Mr. Martindale was read on the present motion, setting forth certain inquiries he had made of .Judge Smith as to his decision, before it was known what it would be, and it was claimed that he and his clients had been misled by something that Judge Smith then said, and that, but for that and a telegram that Mr. Martindale sent to Field and Shearman, an order would have been obtained staying the entry of judgment.</p> <p>The affidavit of Mr. Martindale here referred to, alleged in substance that on hearing that the opinion of the judge would be soon made public, he sought an interview with him, and expressed to him the expectation that his clients would appeal if the decision should be adverse to them ; and the opinion that in either case it would be proper to have the findings settled in presence of both parties ; that to this course the judge assented, and informed deponent that they should have opportunity to be present. The affidavit further stated that he telegraphed this information to the attorneys for the unsuccessful parties; but that next day the findings were settled by the judge, with the assistance of the counsel for the adverse party, and without giving the unsuccessful party such opportunity.</p> <p>This settlement of the findings took place in the chambers of the • justice, at the court house, where special term and chambers business had been usually transacted by him.</p> <p>The affidavit of Mr. '■ Martingale alleged, in effect, that it took place in private, and that the door was locked, and the judge, came out when deponent knocked ; and an affidavit of another witness to similar effect was produced.</p> <p>This was denied by the affidavits of Messrs. McFarland and'Moak, who stated that they went «publicly to the judge’s office, and found him engaged in hearing a motion, after disposing of which the findings were settled. Another affidavit was also produced, denying that the door was locked ; another explaining that the lock was imperfect, and sometimes caught.</p> <p>Mr. Martindale’s affidavit further stated that learning thus that the findings-were." in course;of settlement, without the unsuccessful party having opportunity to be heard, he applied to the judge at a subsequent hour, on an affidavit, for a stay of proceedings, and for leave to be heard, which were denied, as above stated.</p> <p>Mr. Thomas G. Shearman made an affidavit, in which, among other things,'he says : “I have examined the opinion of Mr. Justice E. Darwin Smith, in this case, and have no doubt that it can be; shown to the general term to be in every material respect erroneous, . either in fact or in law.”</p> <p>And the following certificate was read :</p> <p>“We hereby certify that we have examined the opinion of Mr. Justice E. Darwin Smith in this cause, and that in our judgment it is in every material part erroneous, either in fact or in law. January o, 1870.</p> <p>“John H. Martindale, “George C. Barrett,' “David Dudley Field, “Amasa J. Parker.”</p> <p>Upon these facts the unsuccessful defendants moved to set the judgment aside, and that the receiver be directed to retake the property of which he was originally made receiver, upon the following grounds : 1. That the alleged [judgment determined no rights and authorized no proceeding except a reference, without the further direction of the court. 2. That an appeal had been duly taken and perfected, and that orders had been duly made' and served staying proceedings. 3. That the judgment was not a final determination of the rights of the parties, and was entered without notice, and awards costs without stating the amount; that its recitals are incorrect; that its findings of facts and law are , insufficient, and that it does not embrace all the issues in the cause.</p> <p>And they also moved that the decisions and findings be sent back to the judge who tried the cause, ior reexamination and re-settlement.</p> <p>The counsel on the part of the Ramsey party read affidavits differing in some respects from the statements in Mr. Mavtiñdale’s affidavit, and insisted, that the moving affidavit of Mr. Martindale, as to what had transpired with Judge Smith as to his decision and the affidavit of Mr. Shearman, and the certificate of Mr. Field and others, as to the correctness of Judge Smith’s opinion, were irrelevant, impertinent, and scandalous, and moved that they should, for that reason, be stricken out, and they submitted a brief prepared by Mr. Charles Tracey on that point, and the counsel for the moving party insisted that the court should cause his “brief to be returned to" him with befitting admonition and rebuke.”</p>

<p>Motion to vacate judgment and sale in foreclosure.</p> <p>This was an action commenced for the foreclosure of a mortgage on property situated in the city and county of Mew York. The defendants, Louis Mitchell and Joanna Caroline Mitchell, are non-residents of the State of Mew York, and residents of the State of Mew Jersey. On the 26th of June, 1858, an order under section 135 of the Code was obtained from one of the justices of the Supreme Court, authorizing the service of the summons and complaint on defendants Mitchells by publication, and deposit in the- post-office: the summons and complaint were alleged to be personally served on defendants Mitchells on the 1st day of July, 1858 : the summons was not published, nor a copy of the summons and complaint deposited in the post-office. On the 30th day of September an order of reference was obtained on default of an answer or appearance on the part of defendants Mitchells. Judgment was entered up, and the property advertised and sold.</p> <p>The defendant Joanna C. Mitchell now moved to set the judgment of foreclosure and sale aside, on the ground that the personal service of a summons and complaint in another State is irregular and of no effect, even after an order of publication had been obtained; and also that the summons was not actually personally served, and on the ground that the property brought an inadequate price; but the chief point raised was as to the right to serve a summons out of the State, without publishing the summons after an order to that effect has been obtained.</p>

Question of costs submitted upon stipulation. Upon the adjustment of costs in this action, the clerk allowed the defendants (under plaintiffs’ objection) the sum of $35.90 for the fees and attendance of the defendant Kimmel, as a witness in behalf of the defendants. One of the plaintiffs was examined on the trial. The parties had mutually stipulated that plaintiffs and defendants might be examined on their own behalf respectively.

<p>Attachment.—Notice of Pendency op Action.</p> <p>Section 132 of the Code as amended in 1858 (Lam of 1858, 491, ch. 306, § 4), providing that a notice of the pendency of an action affecting the title to real property, or an action in which an attachment affecting real property has been issued, shall be constructive notice to purchasers or incumbrancers; and that every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and bound by subsequent proceedings as if a party to the action—does not authorize the filing of a notice against prior purchasers or incumbrancers who are not parties to the action.</p>

This was the prosecution of an indictment for murder. The prisoner having been convicted, now moved for a new trial upon grounds of the misbehavior of the jury.

This was the prosecution of an indictment for murder. After prisoner had been convicted of murder, his counsel moved before the Oyer and Terminer for a new trial, on grounds of misconduct and irregularities on the part of the jury. Two of the jurors made affidavits, that while the jury was.deliberating, at the request of one of the jurors, the officer having the jury in charge, handed him a paper containing a list of the punishments of the different degrees of manslaughter.

Appeals from orders of arrest. Three actions were brought against S. A. Cohen and. Abraham Cohen, defendants and appellants ; one by Henry A. Wilmerding and others ; another by Effinerham Townsend and others ; and a third by L. E. Schmieder; in each of which orders of arrest were obtained by the above named plaintiffs, who were respectively auctioneers in this city, against the defendants, on two grounds: 1. Fraudulently contracting the respective debts. 2.

The action was one of thirteen cases brought by the plaintiff as assignor of one Achorn, upon as many insurance policies, issued by various companies, upon the ship Actiorn. The vessel was destroyed by fire. The defence was, that the fire was set by the procurement of Achorn. The plaintiff had a verdict which the defendants now moved to set aside, and to have a new trial, on the ground of misbehavior of the jury.

Motion to change place of trial. The action was brought against the defendants as officers and directors of the United States Insurance Company. The plaintiffs sought to hold the defendants individually liable for the amount of a policy issued by the company to the plaintiffs, at Philadelphia, on the ground of frauds in the organization of the company.

<p>Abbest.—Judgment.</p> <p>Under section 188 of the Code—providing that the order of arrest as a provisional remedy may be made at any time before judgment—if after j udgment has been recovered, the defendant is let in to defend, he is liable to arrest on an order, although the condition of his being let in is that the judgment should stand as security. The judgment requisite to preclude an order of arrest is a final judgment, unconditional.</p>

<p>Appeal from an order granting a mandamus.</p> <p>This proceeding was brought by The People on the relation of John B. Woodward against the Board of Assessors of Brooklyn.</p>

<p>Confession of Judgment.—Amendment.—Equitable Libn.— Costs</p> <p>'' The court have no power to allow an amendment of an insufficient statement and confession of judgment, so as to render the judgment entered upon it valid, as against intervening bona fide purchasers or incumbrancers.</p> <p>Whether the court has power in any case to compel one who has confessed judgment upon an insufficient statement, to sign and verify an amended statement,— Query ?</p> <p>A debtor owning real property agreed to secure his debt and new advances made to him, by a confession of judgment. In pursuance of the agreement the advances were made, and judgment to secure the whole debt was entered, but upon an insufficient statement.</p> <p>Held, that the court would hot relieve the creditor against the claims of subsequent bona fide purchasers and incumbrancers, although they had notice of the existence of the judgment when they became such.</p> <p>A complaint stating only such facts, and seeking to have the judgment by confession amended, and the debt declared a lien prior to the intervening claimants, should be dismissed, with costs to all the defendants who resist the action.</p>

This action was brought by Isaac Hermann against Newman Aaronson. An order for the arrest of the defendant was issued fixing the bail at twenty-five hundred dollars, and upon this order defendant was arrested.

Charles Bostwick, Jr., was appointed receiver of the property of Andrew Beiser, in supplementary proceedings instituted by Dolan,, a judgment creditor of Beiser. He brought an action against William Menck, the assignee of Beiser, to set aside the assignment under which Menck claimed, as fraudulent. He succeeded in the action; and recovered judgment that the assignee deliver to him the assets, amounting to some fifteen thousand dollars.

<p>Appeal from an order granting a motion to compel a purchaser at a judicial sale to complete his purchase.</p> <p>This action was brought to foreclose a mortgage made by defendant Esleeck, upon real property in the.eity of Brooklyn, Kings county. The complaint and notice of action pending-were filed in the office of the clerk of that county, on the 2d of November, 1857. The defendants Esleeck and five others were after-wards found to be non-residents, and an order was obtained by the plaintiffs that the summons be served upon them by publication.</p> <p>The summons with a notice at the foot of it stating that the complaint had been filed, were published in the following form :</p> <p>“ Supreme Court, County of Kings.</p> <p>\_JFIere followed the names of the parties, plaintiffs and defendants.]</p> <p>“ To the above defendants :</p> <p>“You are hereby summoned and required to answer the complaint in this action, which will be filed in the office of the clerk of the county of Kings, at the City Hall, city of Brooklyn, Kings county, and to serve a copy of your answer to the said complaint on the subscribers, at their office, Ho. 192 Broad-, way, corner of John-street, New York city, within twenty days after the service of this summons on you, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will apply to the court for the relief demanded in the complaint.</p> <p>“Dated New Yoke, October 29, 1857.</p> <p>“ Miller, Peet & Hichols,</p> <p>Plaintiff’s attorneys,</p> <p>192 Broadway, New York.”</p> <p>“ The said complaint was filed in the said clerk’s office, Hovember 2,1857.</p> <p>“ M., P. & H.,</p> <p>Plaintiff’s attorneys.”</p> <p>The purchaser at the foreclosure sale objected to the title, alleging that- the publication was defective in two respects, viz.:</p> <p>1. In that the summons in addition to stating that the complaint would be filed “ in the office of the clerk of the county of Kings, at the City Hall, city of Brooklyn, Kings county,” did not add “ and State of New York.”</p> <p>2. In that the summons itself did not state the time and place of filing, but the same was stated in a foot-note by way of appendix or postscript, and not as a part of the summons itself.</p> <p>The plaintiff moved at special term for an order compelling the purchaser to complete the purchase. The motion was granted, and the purchaser now appealed to the general term.</p>

Demurrer to answer. This action was brought by Barnet Bildersee and Montague Marks, against Joseph Aden and- Julius¡| Sarner. The defendants had given an undertaking under-section 241 of the Code of Procedure, in a former action brought by the same plaintiffs against one Mrs. Boxius, to procure a discharge of her property from seizure on an attachment issued in that action.

This action was brought to recover money demanded upon contracts and a judgment. At the commencement of the action the plaintiff obtained an attachment under the Code, against the property of the defendant, on the ground that he was a nonresident, and also an order for service of the summons by publication.

<p>Appeal from an order made upon habeas corpus, discharging a soldier from detention in the army.</p> <p>The facts are stated in the opinion.</p>

<p>Motion for consolidation.</p> <p>Three actions were brought by Caleb Potter against Daniel PattengiUe, which the latter now moved, to consolidate. The facts appear in the opinion.</p>

Motion on the part of Samuel A. Sawyer, assignee of Thompson Greenfield, a bankrupt, to be made a party defendant in each of two actions brought against Greenfield,—one by Gunther and the other by Reder. These actions were brought to recover the possession of certain tobacco, alleged to have been wrongfully taken and converted by the defendant Greenfield.

The previous proceedings in this case are reported 4 Ante, 118, and 6 lb., 385. From the order of the general term reported in the latter volume, the receiver now appealed.

This action was brought by Henry M. Field against James Stewart and John H. Masterton.

This action was brought by Thomas M. Lewis, plaintiff, and now respondent, against John A. Page, defendant, and now appellant, in the district court of the city of New York for the sixth district, and judgment was rendered for plaintiff. The action was brought to recover thirty dollars due for goods sold and delivered February 14, 1861.

This action was brought by Anna Barrett, to recover for injuries sustained by her, December 4, ”1865, while riding down town as a passenger in a Third-avenue car, which came into collision on the crossings, just below the Cooper Institute, with a Harlem Railroad Adams’ Express freight car going up town on the Fourth-avenue track, in the city of Hew York. • The trial was commenced before Mr. Justice Mohell and a jury, March 13, 1867, and closed March 19, with a verdict of two…

, This action was brought by Allan Hay, plaintiff and respondent, against - Columbus 0. Douglas, defendant and appellant. The facts sufficiently appear in the opinion of the' court.

This action was brought by Edwin Hoyt and others, against Janies Freel and others, upon an undertaking on appeal, in which Freel was appellant, and the other defendants his co-obligors or sureties. .

This action was brought against Michael McCarty and three others to obtain possession, and confirm to the plaintiff the title, of certain real property in the city of Auburn.

Motion to set aside an order. This action, which was brought by Robert P. Parrott, now came before the court on an application to set aside an order which had been made by the court at a previous general term, by which order a judgment in the cause, entered upon a report of a referee, had been reversed.

Demurrer to answer. ■ This action was brought on an undertaking given on appeal in an action in the New York Superior Court. The contents of the pleadings are stated in the opinion.

<p>Decision on Demurrer.—Parties.—Enjoining Proceedings in another Court.</p> <p>In reversing judgment for the defendant upon demurrer to the complaint, the Court of Appeals appeared, so far as the opinion rendered by them discussed the questions raised, to have overruled the demurrer on deciding merely one of the grounds stated in it.</p> <p>Sold, on demurrer of another defendant, that they must be deemed to have considered and passed upon the other grounds of demurrer as well as the one discussed in the opinion, and that the court below were bound by the decision to treat all the grounds of demurrer as insufficient.</p> <p>In an action by a corporation whose agents have issued spurious stock, brought against the holders of such stock, and seeking to have the same declared void, the holders of genuine stock are not proper parties.</p> <p>The rule that one court should not restrain the proceedings of another of coordinate jurisdiction, does not apply to prevent a plaintiff from seeking in one action to restrain the defendants from prosecuting several actions relating to the same subject-matter, some of which actions are pending in other court?. All may be restrained in one action brought in either court.</p>

Motion to set aside summons, complaint, and all proceedings for want of jurisdiction. The facts are stated in the opinion.

The facts in this case are fully stated in the report of proceedings on appeal from the judgment recovered by the plaintiff at special term, 7 Ante, 193.

This action was brought by Arthur H. Loweree against Armina Babcock, upon a note similar to that described in the preceding casé of Com Exchange Insurance Company against the same defendants.

The plaintiff took an appeal to the Court of Appeals, from an order of the Supreme Court.

<p>This was an action on insurance policies held by the plaintiff, as mortgagee, as collateral security for the mortgage debt. The details of the facts are stated in the opinion. The plaintiff obtained judgment by default at the general term, and this ■ the defendants now moved to vacate.</p>

The action was one of assault and battery, tried before Mr. Justice Pierrepont and a jury. The plaintiff called as a witness Fanny Behram, a person who, on the 17th of August, 1856, had been married to the defendant. The plaintiff objected to her being sworn, on the ground of her being incompetent against her husband.

The relator, John B. Haskin, Esq., obtained from the supreme court a common law writ of certiorari, to 4 review the tax levy affecting the town of West Farms. 'The writ having been subsequently superseded by the court, he appealed to the general term.

<p>Distbict Coubts oe the City of New Yobk.— JUBISDICTION OF • FoEEIGN ’ COBPOBATIONS.</p> <p>The district courts of the city of New York have jurisdiction of actions against foreign corporations which have a place of business in the ' city.</p>

<p>I. JVovembe1858.—Appeal from a judgment dismissing the complaint.</p> <p>The action was brought by the plaintiff to recover from the defendants damages for negligently and carelessly killing the plaintiff’s horse, in the State of New Jersey. The plaintiff was not a resident of this State; but this fact did not appear in the pleadings. After issue, and before trial, the defendants obtained an order that plaintiff file security for costs, upon the ground that he was a non-resident.</p> <p>On the trial of the canse, the counsel of the plaintiffs stated, in the opening, that the plaintiff was a non-resident, whereupon the defendants’ counsel moved to dismiss the complaint, on the ground that the court had no jurisdiction.</p> <p>In order to have the question passed on before proceeding to trial, the parties went before the general term, where the question was presented; counsel agreeing that a judgment of non-suit should afterwards he entered at special term, and with exception, so as to present a formal appeal. The question was accordingly argued at general term, and the judgment at special term was subsequently entered. The appeal taken by the plaintiff was to the judgment of nonsuit as a whole, but took no separate exception to that part of it which allowed costs.</p>

This action was brought by James Talcott, against Felix J. Rosenberg, and another,.in the marine court of the city of Hew York. The facts of the case are sufficiently stated in the opinion.

This action was dismissed on the ground that the court had no jurisdiction to entertain it, by reason of the non-residence of the plaintiff. The defendant entered judgment for costs, which the plaintiff moved to vacate; the motion being denied, he appealed to the general term.

<p>Pleading.—Complaint by Receiver.—Alleging Appointment.—Power oe Receiver . oe a National Bank. '</p> <p>Public general acts of Congress need not be pleaded.</p> <p>Under the act for the organization of national banks (June 3, 1864, 13 U. S. Stai. at L., 115, § 50), the determination of the comptroller of the currency to appoint a receiver of a bank, on being satisfied that it has refused to pay its circulating notes,-—is conclusive upon the debtors of •' the bank.</p> <p>In an action by the receiver against a debtor of the bank, an allegation that on a day named .the comptroller of the currency appointed the plaintiff receiver of the bank, in accordance with the provisions of the act of Congress (referring to it), and that plaintiff has taken possession of the assets, including the demand in suit,—is in substance a sufficient allegation of appointment.</p> <p>Such a receiver may maintain actions in the supreme court of this State for the collection of assets.</p>

The action was brought to recover back a sum which the plaintiff had overpaid the defendant in settlement of an account. On the trial the plaintiff offered himself as a witness. On the cross-examination it was proved that the indebtedness which plaintiff had, as he alleged, overpaid, arose out of the fact that the plaintiff had received the proceeds of certain bills of exchange belonging to the defendant.

<p>Bemoval of Causes.*—Proceedings against Joint Debtors.</p> <p>Where there are several defendants, real parties in interest, each of them, must be a resident of a different State from that of the plaintiff, to entitle a defendant to have the cause removed to a Federal court.</p> <p>The plaintiff) a resident of this State, sued in a State court three defendants, of whom one was also a resident of this State, and the other two were residents of other States. The action was upon a joint indebtedness, and upon service of summons on the resident defendant alone, the plaintiff obtained judgment against all, and afterwards served the other defendants with summons to show cause why they should not be bound by the judgment.</p> <p>Held, that the defendants so served were not entitled to have the cause removed into a Federal court on ground of their residence. Such proceeding is not a new action against only the defendants so served, but a further proceeding in the old action.</p>

This action was brought by James Fisk, Jr., against the Albany & Susquehanna Railroad Company, Joseph H. Ramsey, .and numerous other individual defendants.

<p>I. December, 1858.—Motion for new trial.</p> <p>The object of the action was to recover from the defendant the value of certain mantels furnished and put up by the plaintiff in houses owned by one Cronk. The defence was, that the mantels were not furnished for the defendant at his request, but were furnished and put up for and at request of Cronk. On the trial the plaintiff prevailed. On ground of newly discovered evidence, the defendant now moved for a new trial. The contents of his affidavit are sufficiently stated in the opinion.</p>

Writ of error. The prisoner, John Real, was convicted, in the oyer and terminer, of murder. A writ of error w'as granted to review the conviction (7 Abb. Pr. N. 8., 26); upon which the cause now came before the supreme court; at general term.

Motion to dismiss complaint. This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff at the hands of the defendant in San Francisco, California, during the time that the government of that city was administered by what is known as the Vigilance Committee.

This action was brought by Henry Demott, plaintiff and respondent, against Lydia McMullen, defendant and appellant. The findings of the referee in favor of the plaintiff were as follows: 1. That the defendant is a married woman, and has been during all the times in said complaint mentioned; and that William McMullen during all said times was, and now is, her husband. 2.

<p>Examination of Paett.—Commission.</p> <p>Under section 399 of the Code as amended in 1859, a non-resident party may be examined by a commission issued and executed in the .usual manner.</p>

In the matter of the estate of Henry Parish, deceased, the surrogate made an order on the 17th day of December, 1857, adjudging that the instrument propounded by one of the executors for probate, as the will of the deceased, together with one codicil, also propounded, formed the last will and testament of the deceased ; and admitting them to probate as a will of real and personal estate.

Motion that plaintiff be required to file security for costs. The motion was resisted on the ground that the plaintiff, though a non-resident at the time of commencing his action, had since become a resident.

This was an action brought against the defendant Lindo and one Ellen Banks for the dissolution of a copartnership, and an accounting. The defendant Banks was a married woman. Both defendants appeared by one attorney ; the former put in an answer, the latter a demurrer, to the complaint.

Motion to modify an order in supplementary proceedings. At the time that the defendant was enjoined by an order in supplementary proceedings, from interfering with his property, and a receiver thereof appointed, he was owner of household furniture to the value of from three hundred to six hundred dollars, and which he claimed to be exempt by law from execution. This was subsequently destroyed by fire.

This action was brought by William O. Roomé and others against Granville Nicholson and others. By the order appealed from an answer was struck out as sham.

<p>Interpleader.—Motion to substitute adverse Claimant as Defendant.</p> <p>In an action brought in the New York Superior Court to recover from the defendants moneys deposited with them by the plaintiffs’ assignors, the defendants showed that after the action was brought they had been served with an attach', ment in an other action, by parties claiming the fund, and that there was also another suit pending in the Supreme Court by claimants on behalf of creditors, seeking to set aside the assignment which was the ground of the claim of the plaintiffs in this action.</p> <p>Held, that their motion to substitute such claimants as defendants must be granted.</p>

This was an application made by Mrs. Agnes Mary Grant to compel the defendant 0., an attorney of this court, to pay over to her moneys, the proceeds of drafts placed by her in his hands, early last summer, to invest upon bonds and mortgages. In July or August she determined to make a different use of the money, and as it was not then loaned on bond and mortgage, gave him notice that she should want it in October and November.

<p>Motion to release property from the levy of an attachment.</p> <p>This action was brought by John S. Barry against J. Harmanus Fisher, Harry Fisher and Parks Fisher, to recover damages for the conversion or detention of property of the plaintiff.</p> <p>The allegations of the complaint were as follows :</p> <p>“ That the said plaintiff is and was, at all the times in this complaint hereinafter mentioned, a. resident and doing business in the city of Baltimore and State of. Maryland, and that the above-named defendants, during all said times, were, and still are copartners, carrying on business as bankers and brokers, at the said city of Baltimore, under the firm name of William Fisher <& Sons.</p> <p>“That on or about the month of February, in the year 1868, the said plaintiff employed the said defendants as his brokers, to purchase and sell, and carry for him and on his account, stocks and bonds and gold; and that at the time of such employment it was agreed, by and between the said plaintiff and the said defendants, that the defendants should purchase gold, stocks and bonds for the plaintiff from time to time, as he might direct, and should advance the prices or the cost thereof, and hold and carry the said gold, stock and bonds until the said plaintiff should demand the same, or direct the sale thereof, and the same should be sold in pursuance of such direction. And it was farther agreed, that the said plaintiff should be chargeable to the said defendants with interest, at and after the rate of seven per centum per annum, upon all sums paid and advanced by the said defendants for and on account of the purchase moneys of all gold, stocks and bonds purchased on account of the plaintiff, aud by his direction ; and the said plaintiff should be chargeable to the said defendants with commissions at the rate of one-fourth of one per centum upon such stocks and bonds, and one-eighth of one per centum upon the par value of such gold. And it was. further agreed, that the defendants should be chargeable to the said plaintiff for all dividends, interest and profits on gold, .stocks and bonds held or carried by the said defendants for and on account of the said plaintiff, or deposited by the said plaintiff with the said defendants as security, and also for interest, at the rate of seven per centum per annum, on all moneys received by them from and on account of the said, plaintiff, on deposit or payment from, or on sales of gold, stocks or bonds, or otherwise.</p> <p>“And the plaintiff further shows, that afterwards, and under and in pursuance of the foregoing agreement, the said plaintiff, from time to time, deposited with the said defendants, as security, large quantities of stocks and "bonds, and also paid and advanced large sums of money to them, amounting to many thousands of dollars; and that the said defendants purchased and sold, for and on account of the said plaintiff, large quantities of gold, stocks and bonds ; and as the result of such transactions, on or about the 30th day of September, 18G9, the defendants held and had in their possession, and for and on account of the said plaintiff, and belonging to him and being his property, in addition to large sums of money in their hands belonging to the said plaintiff, the following stocks, viz : [enumerating them,.]</p> <p>“And the said plaintiff' further shows, that on or about the said 30th day of September, and the 1st day of October, 18G9, the said stocks suffered a temporary decline in the market, owing, not to any intrinsic change in the value thereof, or of the properties upon which the same were based, but entirely to temporary, extraneous, artificial and fictitious causes; and thereupon, on the said days, with intent to injure the said plaintiff, and in violation of their agreement with the said plaintiff, without his knowledge or consent, the said defendants wrongfully sold out the following of the above-mentioned stock, and wrongfully converted the same to their own use, viz:' [enumerating them.]</p> <p>“ That each and all of the said sales of the said stocks were made at prices less than the said stocks and each of them would have brought at any period subsequent thereto, and were made without authority and without the plaintiff’s direction or permission, and without notice to the said plaintiff of such sales, or of the time and place thereof, and in violation of the agreement between the said plaintiff and the said defendants, hereinbefore set forth.</p> <p>“And the said plaintiff further shows to the court, that after the said wrongful sales and conversion of the said stocks above mentioned and specified, there remained in the. possession of the said defendants, of the said stocks, mentioned in folios 4 to 12 of this complaint as belonging to the said plaintiff, and to the possession of which he was entitled, the following stocks, to wit: [enumerating them.]</p> <p>“And that the said defendants, though then and since requested so to do by the said plaintiff, would not deliver, and refused to deliver the same, or any part thereof, to the said plaintiff, but have ever since wrongfully detained, and have converted the same to their own use.</p> <p>“That in consequence of the wrongful sales, detentions and conversions by the said defendants, hereinbefore mentioned and set forth, the said plaintiff has suffered damages in the sum of one hundred and twenty-five thousand dollars.</p> <p>“Wherefore,” &o.</p> <p>Upon this complaint, and an affidavit averring non-residence, &c., in the usual form, and alleging that the defendants had property within this State,—to wit: stocks, bonds and gold, in the hands of Hallgarten & Co., Van Schaick & Co., and others named, accounts with said firms, balances due defendants by said firms, margins on deposit with said firms, and balances which will result jn favor of 'said defendants on a settlement of accounts with said firms,—the plaintiff obtained an attachment, notice of which the sheriff served on the firms above named.</p> <p>A motion was now made on behalf of the defendants, and of Hallgarten & Co. and Van Schaick & Co., and of W. W. Remington, a recently admitted partner in the house of the defendants, for an order that the notice of attachment be declared ineffectual for the purpose of attaching the funds and property in the hands of the Hew York houses, or that such funds and property should be released and discharged from the effect and operation of the attachment and notice, and delivered up to W. W. Remington.</p> <p>The material facts disclosed on the motion appear in the opinion.</p>

Motion to set aside complaint for irregularity. The complaint alleged that defendants agreed with plaintiff to take a shipment of three hundred hogsheads of tobacco, to be carried from blew York to Bremen; that defendants failed to comply with the agreement on their part, by which plaintiff was put to expenses (specified in the complaint) in the storage of the tobacco and insurance, while waiting for another ship, loss of interest, &c. The complaint averred damages “ in the…

The complaint alleged “ that at, &c., the defendant, with force and arms, ill-treated, and an indecent assault made upon her, the said plaintiff, and then and there debauched and carnally knew her, the said plaintiff, whereby she became pregnant and sick with child, and so remained,” &c. The defendant demurred.

The action was for assault and battery. The defendant appeared, but did not plead to the complaint, and the plaintiff now applied to the court for the relief demanded. In so doing, he moved for an order that the damages be assessed at the circuit, instead of by a sheriff’s jury.

<p>Evidence.—Books oe Account.—Examination oe Pasties.</p> <p>The plaintiff’s books of account are not evidence in his favor sufficient to support his action, upon mere proof that he had no clerk or book-keeper, and that persons dealing with him had settled with him by his books. It must also be proved that the defendant dealt with the plaintiff, and that some of the articles sought to be recovered for, were delivered.</p> <p>It seems, that since the statute authorizing parties to testify as witnesses in their own behalf, books of account of a party are no longer sufficient evidence on his behalf; and that he can use them only to refresh his memory in testifying himself, or where, from failure of recollection, he is compelled to rely upon them alone.</p> <p>The history of the rule allowing the use of a party’s books of account as evidence in his own behalf.</p>

Motion to a stay entry of judgment. This action or proceeding was brought by plaintiff, William S. Barton, a sub-contractor, against Isaac Herman, owner, and John Barry, contractor, to foreclose a mechanics’ lien on premises No. 19 East Fifteenth-street, in the city of New York. The cause was referred to Thomas H. Landon, Esq., referee, to hear and determine.

<p>Jurisdictional Facts.—Surrogate’s Decision.</p> <p>Where the jurisdiction of a subordinate tribunal, having cognizance of the general subject, has attached by the presentation of a verified prima facie case, and by the appearance of the parties—e. g., in the case of proceedings before a surrogate’s court, for the probate of a will—its decision, even on a quasi jurisdictional fact, such as that of inhabitancy, is conclusive, unless reversed on appeal.</p> <p>Where, after a great lapse of time, it is sought to avoid collaterally the proceedings of a surrogate in admitting to probate a will, on the ground that by reason of the testator’s non-residence the surrogate had no jurisdiction, the question is not, Was the inhabitancy of the testator such that the surrogate had no jurisdiction?—but, Was the surrogate necessarily wrong in deciding on the evidence before him that the testator was an inhabitant of his county ?</p>

Motion to vacate an attachment. This action was brought by John T. Foley and another against William A. Yirtue and another. It appeared that in 1866 the plaintiffs entered into a contract' with defendants, by which the former were to have the exclusive sale of a book known as the “Devotion to the Blessed Yirgin” in North America, throughout the United States, except California.

<p>Appeal from an order in supplementary proceedings.</p> <p>The plaintiff in this action made an affidavit that he had obtained judgment therein against the defendants for a sum specified ; that the judgment-roll was filed in the office of the clerk of the city and county of New York; and stating further, “ that an execution thereon against the property of the judgment debtors has been duly issued to the sheriff of the city and county of New York, and the sheriff of the county of Queens; that the judgment debtors resided in said county of Queens at the time of issuing such execution, and still so reside, and that the Fulton Bank, in the city of New York is indebted to the judgment debtors in an amount exceeding ten dollars.” Upon this affidavit the plaintiff obtained ex parte from a justice of the Supreme Court, in the first district, an order which, after reciting the facts shown by the affidavit, concluded as follows: “ I do hereby require the said Fulton Bank, William J. Lane, the cashier thereof, to appear before me at the chambers of this court in,” &c., “ on the 30th day of Rovember, 1858, at 10 o’clock in the forenoon, and be examined concerning the same. And the said Fulton Bank and its officers are hereby forbidden to transfer the property of said defendants now in their hands, or otherwise dispose of the same, or in any way interfere therewith until further order in the premises.”</p> <p>This order was made on the 22d day of ¡November, and on the same day it was with a copy of the affidavit served on the cashier of the Fulton Bank, and copies of the order and affidavit, with a notice indorsed that the within were copies of such order and affidavit, were on the same day deposited in the post-office in the city of New York, addressed to the defendants at Flushing, Long Island, and the postage paid thereon.</p> <p>On the return day of the order the cashier of the Fulton Bank appeared pursuant to its requirement, before Hr. Justice Clerke, and submitted without objection to examination. He testified that the bank kept an account with Wm. E. Prince, one of the defendants, but none with Wm. Prince the other. That there was then to the credit of Wm. E. Prince, in account, the sum of $198.55 due him from the Fulton Bank.</p> <p>Upon the examination, counsel for the defendants appeared for the purpose of raising objections on their behalf to the making of any order affecting them.</p> <p>The court, however, made an order that the bank pay over to the plaintiff or his attorneys the sum appearing to be due from them to one of the defendants.</p> <p>From this order the defendants now appealed.</p>

<p>Arrest.—Fraudulent Eepresentations on Part of Agent.</p> <p>Though a defendant would be civilly liable for the fraud of his agent, he is not liable to arrest therefor, without personal guilt on his part in respect to the commission of the fraud, or by ratification of the fraudulent act.</p> <p>To warrant arrest of a defendant whose fraud is alleged as the ground for the order, the fraud must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable.</p>

This was an action for specific performance of a contract of sale of real property. The facts were, that on October 21,1856, the defendant sold to the plaintiff the house and lot Ro. 152 West Thirty-second-street, for $5000 ; terms, $1000 cash, the balance by assuming a mortgage then on the premises for $3500; $100 of the $1000 was paid by plaintiff at the time of signing the contract.

Habeas corpus to inquire into the detention of W. A. Hardenbrook, held in custody by the sheriff of the city and county of New York. The prisoner had been arrested upon an attachment for nonpayment of alimony, required of him in an action of divorce, to which he was a party. He claimed privilege from arrest, on the ground that at the time of the arrest he was on his way to the trial of a cause before a referee, which he had been attending in the capacity of witness.

<p>Chattel Mortgage.—Itltwctioh.</p> <p>An injunction lies at suit of a mortgagor of chattels with reservation of possession for a certain time, to prevent the mortgagee from taking possession before the time limited. So held, where the mortgage was constituted by a bill of sale, and assignment, made by the one party, and a separate stipulation to leave him in possession, given by the other.</p>

<p>Demand of Copy of Complaint.</p> <p>A notice of appearance which requires “all papers” in the action to he served on the defendant’s attorney, and specifying a place for the service, ia a sufficient demand of service of a copy of the complaint.</p>

This action was brought by Lewis S. Lwy against Sylvester Brush, to compel the conveyance by the defendant to the plaintiff of the undivided half part of certain lots of land in this city.

The action was brought to set aside an assignment as fraudulent. The complaint averred that, some five years ago, the defendants failed, and made an assignment of their property, representing that it would be sufficient to pay all their debts, instead of which the assigned property had never yet produced any thing; and charged that the assignment was fraudulently made.

This action was one of thirteen suits brought by the plaintiff, as assignor of one Achorn, upon as many insurance policies, issued by various companies, upon the ship Achorn. The vessel was destroyed by fire. The defence was, that the fire was set by the procurement of Achorn. After a very protracted trial, the plaintiff had a verdict, which was afterwards set aside on the'ground of misbehavior of the jury, and a new trial ordered. Upon the second trial the jury disagreed.

Motion to set aside judgment. In this action judgment had been entered by default on affidavit of service of summons and complaint on one Clark, of this city, on 9th February, 1850. This judgment the defendant now moved to set aside. It was shown by affidavit that defendants were a foreign corporation (of the State of Michigan). The plaintiff was a resident of this State.

Demurrer to amended complaint. The action was brought to recover the amount of a bond issued by the defendants. The allegations of the amended complaint were as follows: That at the times hereinafter mentioned the defendants were a corporation, duly incorporated under and by virtue of the laws of the State of Bew York. That on the first day of March, 1849, at the city of Bew.

ment. This action was brought by Abiram Ransford against George L. Marvin and another. After judgment, defenSants made a tender, and this being refused, moved for an order directing satisfaction to be entered. The facts upon which the motion turned are fully stated in the opinion.

<p>Supplementary Proceedings.—Transcript or Justice’s Judgment eor less than Twenty-rive Dollars.</p> <p>Supplementary proceedings may be taken, against a resident of this State, although the judgment is for less than twenty-five dollars.</p> <p>A transcript of a justice's judgment, though for a less amount than twenty-five dollars, may be docketed with the county clerk, and thereupon becomes a judgment of the county court, enforceable like other judgments, except that it is not a lien on real property.</p>

Submission of controversy without action. This was a controversy arising between James Dnnsbee, executor of Samuel Dunshee, deceased, and' Max Q-oIdbacher, submitted to the supreme court, at general term, in the first district, pursuant to section 372 of the Code of Procedure.

Motion to set aside judgment and execution. This action was ¡brought by Robert Keeler against Witman S. Olin. The summons and complaint were served personally upon the defendant, July 23, 1870. The place of trial was Rensselaer county. On the 12ill day of August, 1870, the defendant procured from the special surrogate of Washington county, an order extending the time to answer twenty days; and on the same day served it by mail upon the plaintiff’s attorney.

The action was brought upon an undertaking executed by the defendants John Emmons, Jr., and Han-ford Smith, upon the arrest of the defendant-, James L. Paine, under an order of arrest granted in an action, wherein the plaintiff herein was plaintiff, and the defenfendant, James L. Paine, was defendant.