Volume 8 — Daly's New York Common Pleas Reports

<p>A person may acquire the right known as the good will in a business, from its being established in a particular place, from which he has derived, or may derive, profit, and when there is attached to the business a name indicating to the public where or in what manner it is carried on, and it is a right which will be protected by a court of equity, even when he removes the business to another place.</p> <p>The proprietary right which a man has acquired in a trade-mark, or in the use of his name, or in any name general or otherwise which designates a particular business established and carried on by him, involving what is known as the “good will ” of the business, is in the nature of property, and transmissible by-assignment or bequest, and will pass with the sale of the business to which the name or trade-mark is attached, or under a general assignment for the benefit of creditors, which, by its terms, transfers all the insolvent’s property for the pay-1 «lent of his debts, although it may not be specified in the schedule annexed to the assignment, or in the one which, under the General Assignment Act of this State, is subsequently made out and filed.</p> <p>In 1827, one William L. Ruslitou established, in the city Mew York, a business in the sale, by wholesale and retail, of drugs and medicines, with which was connected the putting up of medical prescriptions, and of special preparations known by names of his own creation or adoption. In 1832 he associated with him one Aspinwall, and in 1843 William Hegeman, who had originally been in Rusliton’s employment, became a partner in tlie place of Aspinwall, and continued thereafter to be a partner during several changes of proprietorship and of the firm name, until lie became the principal proprietor, when the firm name was changed to that of Hegeman & Co. The firm then had a central or principal place of business at Mo. 203 Broadway, and branches in other parts of the city. William Hegeman afterwards associated with him liis son, J. M. Hegeman, and the business, as conducted by them under the firm name of Hegeman & Co., had a high reputation, which was largely due to the experience, knowledge and business-like qualities of William Hegeman. Tiie special preparations compounded and sold by the firm were made up by assistants employed in the pliarmacentical department from formulas or recipes which William Hegeman gave them, and which were copied out from a book which he kept in his possession. These special preparations were distinguished by special names with which that of Hegeman was incorporated, such as “ Hegeman’s Compound Fluid Extract of Buchn,” and the label attached to them had on it a symbol or emblematic trade-mark, which represented the figure of an eagle, with extended wings, perched upon a mortar and pestle, with á scroll from the eagle’s mouth, containing the words “ established 1821,” which was accompanied by a statement on the label that the article was prepared only by Hegeman & Co. After the death of William Hegeman, the surviving partner made a general assignment for the benefit of creditors—conveying to the assignee the entire copartnership property and effects in general and comprehensive terms, such as “ all dioses in action,” and “ all property and effects, of every nature and description, of whatever name or nature,” and the assignee thereunder sold to a purchaser, who paid a substantial consideration therefor, the trade-mark and good will, and as connected with it the business name, and “ all preparations, recipes, formulas, prescriptions, and recipe books, labels, plates, proprietary rights,- and proprietary articles.” After this sale the surviving partner, J. M. Hegeman, associated with himself one J. W. F-, and under the name of Hegeman & Co. opened a store at 756 Broadway, and sold the special preparations of the old firm of Hegeman & Co. under the same names and labels that it had done :—Held, that the good .will of the business, and the right to claim to be the successor of tlie firm of Hegeman & Co. passed to the purchaser from the assignee, and that J. M. Hegeman, as surviving partner of that firm, liad no right growing out of his former connection with the partnership to assume or hold out to the public, and to the detriment of those who acquired by purchase all that remained of the former firm, that he was carrying on the same firm and business, or to vend the special preparations of that firm so labelled and marked as to indicate to purchasers that they were put up and prepared by that firm, and that he had no right to the business name, the trade-mark, or to anything incident or belonging to the firm, exiept the use of his own name, of which he could not he divested, and the right to attach liis own name to the articles he manufactured and owned, hut not, in such a way as to pass them off as the articles manufactured or prepared by the firm of Hegemau & Go., or by those who had succeeded to that firm, and also the right to enjoy whatever benefit or advantage he might derive by representing that the business carried on at 756 Broadway was carried on by a firm, one of whose partners was formerly a member of the firm of Hegemau & Co.</p> <p>The purchaser from the assignee of Hegeman & Co. of the trade-mark, good will, &C-, sold all the rights acquired by such purchase to a corporation (which had been formed under the general act of 1848, for the formation of corporations for manufacturing, &c., purposes) whose corporate name was “ Hegeman & Co..” and this corporation advertised its business under the style of “ Hegeman & Co., Chemists and Druggists, 203 Broadway only, Hew York,” and issued a circular stating that the concern of Hegeman & Co. had resumed business, and generally conducted the business—in their dealings with the general public—as if it were not a corporation, but a continuation of the old firm :—Held, that the purchase from the assignee, in view of the statutes of this State (L. 1833, e. 281), against doing business in fictitious names, did not confer on the purchaser the right to do business under the name of Hegeman & Co., but only as the successor of that firm, and that the manner in which the corporation was doing business was an attempt to evade the statute, and a fraud on the public, and that as long as it continued so to do a court of equity would not enforce against infringers thereof its rights to the good will and trade-mark of the old firm of Hegemau & Co.</p>

This action was brought by White, as executor, to recover for work done and materials furnished by George White, his testator, in building and repairing a bulkhead on the land of James R. Whiting, deceased, of whose estate the defendant was administrator, and to recover also the value of services rendered by George White to Whiting, under a street-cleaning contract which the latter had entered into with the city of New York. The facts sufficiently appear in the opinion.

The plaintiffs, Thomas Kelly and Walter L. Richardson, as administrators of the estate of Henry H. Richardson, deceased, brought this action to recover $200, the amount of three promissory notes made by the defendant, James Sheehy, to Ellen C. Richardson, an administratrix of the estate, who had been removed from her office. The notes were given as part payment for goods of the estate bought by Sheehy.

This was an action of ejectment brought by the Orphan Asylum Society to recover possession of certain land on Broadway, in the city of New York. The complaint alleged ownership in the plaintiff; that the term of the defendant as lessee of the premises had expired on May 1st, 1876, and that he withheld possession from the plaintiff.

<p>In an action commenced in a District Court of the city of New York hy a warrant 6 of arrest, issued on affidavits showing a ground of arrest extrinsic of the cause of action, if the defendant does not move to vacate of arrest, he admits that the warrant was rightly issued; and on judgment entered for the plaintiff on an issue joined in the pleadings, it is the duty of the justice to state in the judgment that it was rendered in a casé where the defendant-was subject to arrest and imprisonment, and so enter it in his docket; and for his failure to do so, the judgment will, on appeal, be reversed.</p> <p>It seems, that if the warrant is vacated upon motion of the defendant, made before answer, judgment should be entered for the defendant for his costs.—Per J. F. Daly, J.</p>

Appeal by the defendant from a judgment rendered on the verdict of a jury in the Seventh District Court of the city of New York. 1 The facts appear in the opinions.

Appeal by the plaintiff from a judgment in favor of defendant, rendered in a District Court of the city of New York. The facts appear in the opinion.

The complaint alleged that plaintiff “ sold and delivered to the defendant certain goods, to wit: mantels, hearths and frames, &c., of the amount and value, when delivered and set up, of $390, and that the same were delivered and set up; that the defendant paid the plaintiff on account thereof $171, and no more,” and demanded judgment for $219 and interest.

Appeal by the plaintiff from a judgment of this court, entered upon a verdict rendered for the defendants by direc- ’ tion of the court at a trial term.

<p>The defendant, after judgment in his favor, can have an attachment for his costs as a matter of right against the person of the guardian ad litem, of an infant plaintiff.</p> <p>It seems, that the guardian ad litem of an infant plaintiff cannot he compelled to give security for costs.</p>

<p>The courts of this State will, to prevent injustice and oppression, enjoin a party to an action pending before them from prosecuting an action subsequently commenced in another State, where the matters litigated, and the relief which may be had, are substantially the same in both actions.</p> <p>Where the defendant in an action pending here, brought by his wife for a limited divorce, commenced an action in Connecticut against the wife for a separation, and a decree releasing him from the obligation of supporting her, intending to bring it to a trial before the wife could obtain a trial here, and where all the witnesses for the wife resided in this State and New Jersey, and she was pecuniarily unable to defend the action brought by her husbandheld, a case within the above rule, and an injunction granted.</p> <p>In an action for limited divorce, where alimony and an allowance for counsel fee has been granted in an amount so small and inadequate as to show that it was so limited on'account of the poverty of the defendant, and a trial has been had resulting in a disagreement of the jury, the court will not allow additional sums for alimony and counsel fee, on the ground that a new trial is necessary, unless it is shown that the defendant’s pecuniary circumstances have improved.</p>

Petition of Charles J. Osborn and Clement J. Trow-bridge, partners under the firm name of C. J. Osborn &Co., claimants of funds in the Shoe and Leather Bank, that Burr W. Griswold, assignee for the benefit of the creditors of John Bonner and Arthur L. Sewell, partners under the firm name of John Bonner & Co., be instructed by the court to consent to the payment by the bank of said funds to the petitioners, to be then divided between the petitioners and other claimants in…

The application was resisted on the ground that the assignor had made a composition with his creditors in proceedings in bankruptcy, and that by the composition the assignee had been relieved from a compliance with the requirements of the State law. It appeared that proceedings in bankruptcy were commenced against the assignor within three months after the making of the assignment, but no adjudication had been made therein.

Taxation of respondent’s costs after entry of order in his favor on remittitur from the Court of Appeals.

<p>Motion on behalf of plaintiffs to set aside an award made by Sylvester L. Woodhouse, to whom, as arbitrator, certain matters in litigation in the above entitled action were submitted by the written agreement of the attorneys for the respective parties.</p> <p>The facts are stated in the opinion.</p>

Application by an assignee under a general assignment for the benefit of creditors for leave to compromise claims belonging to the estate. The facts are stated in the opinion.

<p>Appeal from a judgment of this court, entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial made on the minutes.</p> <p>The facts are stated in the opinion.</p>

<p>An adjudication in proceedings upon the petition of a debtor for discharge from imprisonment under art. 5, chap. 5, part 2, title 1, of the Revised Statutes, that certain conveyances of property were made by the debtor with intent to defraud his creditors, will be held conclusive in subsequent proceedings for the debtor’s discharge under art. 6, chap. 5, part 2, title 1, of the Revised Statutes, where the parties are the same, and such subsequent application for discharge will be denied.</p> <p>Proceedings commenced before a judge of this court for the discharge of a debtor from imprisonment under art. 6, chap. 5, part 2, title 1, of the Revised Statutes, may be continued and terminated before another judge of this court.</p> <p>Where the order to show cause by which such proceedings were instituted was made returnable before the judge who signed it, “ or, in his absence, before one of the other judges of the court,”—HeZd, that the proceedings were not thereby rendered invalid.</p> <p>The omission to state, in the papers submitted to the judge by the petitioning debtor in such proceedings, the residence of one of his creditors, is not a jurisdictional defect.</p> <p>It seems, that the removal from the State, or disposition of the debtor’s property with intent to defraud any of his creditors, is a bar to his discharge, whatever use he may have made of the property or its proceeds.*</p>

<p>An order made in supplementary proceedings by a judge who has acquired jurisdiction to make it, which directs a bank to pay mosey deposited with it in the name of the wife of the judgment debtor to the judgment creditor, to be applied upon his judgment, binds the wife who was a party to, and examined in, such proceedings, and is a bar to an action brought by her against the bank for the recovery of the money so deposited, and which has been paid by the bank in obedience to the order.</p> <p>It seems, that if, upon the examination, in proceedings supplementary to execution, of a third person alleged to have property of the judgment debtor, it appears by the evidence of such third person that he claims an interest in such property adverse to the judgment debtor, it is erroneous to order such property to be applied upon the judgment, and it can only be so applied by means of an action brought by a receiver appointed in such proceedings.</p>

<p>Motion for leave to prosecute in forma pauperis, and to vacate an order requiring plaintiff to file security for costs or to show cause, &c., and staying plaintiff’s proceedings. The facts appear in the opinion.</p>

<p>Motion to continue during the pendency of the action a temporary injunction which had been granted ex parte.</p> <p>This action was brought by Pool, a. tenant of apartments, against Coleman, his landlord, and Higginson, another tenant, having apartments over the plaintiff, to obtain damages for injuries alleged to have been occasioned .plaintiff and his family by the noise of the rolling of “ a cart or wagon ” containing Higginson’s baby, and to obtain a perpetual injunction against such roiling. The motion was heard upon the complaint and affidavits.</p> <p>The facts are stated in the opinion.</p>

Motion to confirm the report of John A. Bryan, a referee appointed to take and state the account of an assignee, under a general assignment for the benefit of creditors, and for the settlement of allowances to counsel. The facts are stated in the opinions of the court.

<p>Application by Herman Hablo and others, creditors, for the removal of Henry H. Stotesbury, a person named as assignee in an assignment made by James Leahy, from the office of assignee, and to compel an accounting.</p>

Motion to confirm the report of a referee as to surplus moneys and for costs. The action was for the foreclosure of a mortgage. The motion was made on behalf of Charles F. Smith, a defendant in the action and a claimant, on whose behalf also the motion for the reference was made. There was no opposition made before the referee to the claim of Smith. Upon the motion he asked for the costs allowed in civil actions before and after notice of trial and a trial fee.

<p>Motion to consolidate four actions for the foreclosure of mortgages on real estate.</p>

Trial at special term. This action was brought to foreclose a mechanic’s lien on premises No. 571 Second Avenue, in the city of New York, filed by the plaintiffs, Jarvis B. Smith & Co., sub-contractors..

Appeal by the plaintiff from an order of the general term of the Marine Court of the city of New York, affirming an order of that court made at a trial term, granting a motion made by the defendant upon the minutes for a new trial.

<p>Appeal by the plaintiff from a judgment in favor of defendant, rendered in the District Court of the city of New York for the Ninth Judicial District.</p> <p>The action was brought to recover $62 50, rent of certain premises for the month of April, 1877. It appeared cm the trial that defendant hired the premises of plaintiff for one year, ending May 1st, 1877, at the monthly rent of $62 50, payable at the end of each month, and that the rent for the month of April was not paid. The question litigated was, whether or not plaintiff had accepted a surrender of the premises in that month, and the evidence held to prove such surrender is stated in the opinion.</p>

Appeal by the defendant from a judgment of this court entered upon a verdict, and from an order denying a motion for a new trial made upon the minutes. ' The action was brought by Prank S. Edminster upon a written covenant made by the defendant, under seal, to pay plaintiff a sum of money upon the condition precedent, that plaintiff should obtain from one Harvey Miller, of Vermont, a power of attorney, duly acknowledged, authorizing plaintiff to receive said money and to…

The action was brought to recover the possession of jewelry of plaintiff wrongfully detained by defendant, with damages for detention. The sheriff demanded the property and defendant refused to deliver it.

<p>The omission ot a referee, before proceeding to hear testimony in a cause, to take the oath required by statute is a mere irregularity, and a party proceeding with the reference without demanding that the referee take the required oath will be deemed to have waived the irregularity. The former rule to this effect has. not been ¿hanged by section 1016 of the Code of Civil Procedure, except where there are infant parties or parties not personally present nor represented by counsel.</p>

<p>It is the duty of the general term, upon an appeal from a judgment entered upon the report of a referee, or the decision of a single judge, to examine the evidence and determine the facts for itself whenever it is requested to do so, and this duty is imposed whether or not exceptions have been taken to findings of fact.</p>

This action was brought by Louis Bock to recover $534, a part of the price of thirty-seven casks of glucose, about 26,250 pounds, sold and delivered to the defendant. The complaint alleged that this glucose was sold and delivered about Nov. 29th, 1875.

This action was brought against the defendants as trustees of the “ JEtna Iron Works,” a manufacturing corporation organized under the general statute of New York for that purpose, to enforce the liability of the defendants as trustees to pay a debt of the corporation. The debt arose from money loaned to the corporation in April, 1873.

<p>A receiver appointed in supplementary proceedings takes only an equitable right of redemption in chattels mortgaged by the judgment debtor and reduced to possession by the mortgagee, before the commencement of the proceedings, and •cannot maintain an action of replevin for such chattels against the mortgagee.</p>

Appeal by the defendant, Jacob Wick, Jr., from a judgment of this court, entered upon the report of John J. Townsend, to whom it had been referred to hear and determine the issues. The action was brought to foreclose a mechanic’s lien claimed to have been secured under L. 1875, c. 379. The suit was defended ■ on the ground that the notice of lien which had been filed did not conform with the requirements of the act.

<p>Upon an appeal to this court from an order of the general term of the Marine Court of the city of New York granting a new trial, on the ground that the verdict was against the weight of evidence, this court will refuse to weigh the evidence again; and will either dismiss the appeal or render judgment absolute against the appellant, unless the uncontradicted evidence shows that he is entitled to a judgment in his favor.</p> <p>In a .case where the return showed that there were errors on the trial for which the general term of the Marine Court might properly have reversed the judgment and ordered a new trial, and it also appeared that such general term might have reversed the judgment and ordered a new trial for errors of fact and not for errors of law, the general term of this court, instead of ordering judgment absolute against the appellant, dismissed the appeal and remitted the appellant to a new • trial</p> <p>Where, to a complaint for wages, the answer is a general denial, and the evidence on the part of plaintiff and defendant is conflicting as to the rate, of wages, it is error for the court to instruct the jury that the burden of proof is upon defendant and that a debt is admitted.</p>

This action was brought by Josephine Cordier, as administratrix of Rosine Cordier, deceased, against Henry Thompson, on the following written contract of guaranty: “ New York, July 20th, 1875.' “ I acknowledge to have received from Miss Rosine Cordier the sum of fifteen hundred dollars, also a promissory note for #500, payable November 12th, 1875, making in all two thousand dollars, which sum I agree to return, without interest, at the expiration of two years from present…

Appeal by the defendants from a judgment of this court, entered upon a report in favor of the plaintiff by Edward S. Dakin, a referee, to whom it had been referred to hear and determine the issues in the action. The action was brought by Patrick H. Gilhooly, the assignee of Leonee De Metz, against Lucius Hart and Charles Fanning, who were partners under the firm name of Lucius Hart & Co., for an accounting.

Appeal by the defendant from a judgment of this court, entered on a decision at trial term. The action was brought by the assignee of a bond, (secured by a mortgage on real estate) upon a guarantee of its payment made by defendant’s testator, the assignor and mortgagee, and contained in the assignment.

<p>Appeal from an order made by this court at special term, granting a motion to offset judgments.</p> <p>The plaintiffs obtained a judgment against the defendant in a District Court of the city of New York for $123 40, and filed a transcript of the judgment in the office of the clerk of the city and county of New York, and afterwards, in proceedings supplementary to execution instituted in this court by the plaintiffs for the examination of a third party as a debtor of the judgment debtor, Gillett, the latter, on an appeal to the general term, obtained a judgment for costs against the plaintiffs for the sum of $28 50. Gillett was insolvent. A motion was made by the plaintiffs to offset the two judgments, and have the latter one satisfied of record on the reduction of the former one by that amount; and this motion was opposed on the ground that E. More, the attorney of Gillett, had a lien on the judgment for costs, and that Gillett had assigned the judgment to More before the motion was noticed.</p>

Appeal by the defendant from a judgment in favor of plaintiff, rendered in the District Court of the city of New York for the Third Judicial District. The action was commenced by long summons. Upon the return day the defendant, before pleading, objected to plaintiff’s proceeding on the ground,— .

<p>Petition of an imprisoned debtor for discharge from imprisonment.</p> <p>The facts are stated in the opinion.</p>

Appeal by John W. Hesse, assignee of John H. Horsfall, under a general assignment for the benefit of his creditors, from an order of this court made at special term on the application of John T. Camp, one of the creditors of said Horsfall, vacating an ex parte order which had been obtained by Hesse-, discharging him from his trust as assignee and cancelling his bond as such, and relieving the sureties thereon from furtner liability.

Appeal by the defendant from a judgment of this court, entered on the decision of a judge thereof at trial term, a jury having been waived.

Appeal by the defendant from a judgment of the Marine Court of the city of New York, entered on an order of the general term of that court, affirming a judgment for the plaintiffs on a verdict rendered by direction of the court at trial term. The action was brought to recover damages for the taking and conversion of 753 cases of canned peaches, alleged to have been the property of the plaintiffs.

Appeal by the defendant from a judgment-of the Third District Court in the city of New York. The complaint, which was verified, alleged the making and delivery to the plaintiff for a valuable consideration of two certain promissory notes—describing them—for $33 each, and that payment of them when due had been demanded and refused, and that they were still due.

On May 1st, 1877, the appellant was the owner of a patent for a “ folding guide ” for sewing-machines, and by a written agreement made on that day he licensed the respondent to use one of his guides for a year at a royalty of $50, which was paid.

<p>Upon the question as to whether or not a railroad company has been guilty of negligence in respect to an accident to one crossing its track, the presence or absence of a flagman at the crossing at the time of the accident are facts relevant to the issue; and the fact that there had been a flagman at the point before the accident, coupled with the fact that there was none at tiie time of the accident, may be shown as tending to prove negligence.</p> <p>Questions calling upon a witness to say whether he saw an engine sufficiently to see whether or not the bell was ringing; whether he was in a position where, if a bell had been rung, he could have heard it; whether he could, when in a certain position, see a certain other designated spot, are questions calling for statements of fact, and not for the opinion of the witness.</p> <p>A minor is not held to the exercise of so high a degree of care and prudence as is required from adults.</p> <p>The decision to the contrary in Honesberger v. The Second Avenue Railroad Co., (2 Abb. Dec. C. of Ap. 378), examined and not followed, from the opinions expressed in subsequent cases in the same court.</p> <p>Appeal from a judgment entered upon a verdict for the plaintiff rendered at a trial, and from an order denying a motion for a new trial made upon the minutes.</p> <p>The action was for damages for negligence, causing the death of plaintiff’s intestate, aged fourteen years, who was run over in the street and killed by one of defendant’s locomotives while she was crossing an avenue in the city of New York, on her way home with groceries which she had been to the store to purchase. The defense was contributory negligence on the part of the deceased and her parents.</p>

In November, 1870, the plaintiff obtained a judgment in the Seventh District Court against one Joseph Ogle for $121 58. On the 24th day of July, 1875, an execution on this judgment was issued to the defendant as a marshal, which execution ivas returned on Sept. 1st, 1875, “ no property.” This action was thereupon commenced, either as upon a false return, or to recover the penalty prescribed by L. 1857, 844, § 57.

<p>Appeal from a judgment of this court, entered upon a verdict for plaintiff rendered at a trial term.</p> <p>The action was under the statute to recover damages for the death of plaintiff’s husband from the alleged negligent firing of a blast in 10th Avenue, N. Y. City. The defendant was a contractor, engaged in excavating a sewer for the city. The plaintiff put in evidence a city ordinance, prescribing the precautions to be observed in blasting, and introduced evidence tending to show that some of these precautions were not observed. The jury rendered a verdict for the plaintiff for ¡¡¡>4000.</p>

This action was originally brought against Ann Lohman . to recover for the conversion of ten $1,000 United States’ bonds, and after her death was continued against her executrix.

The following costs allowed the defendant by the clerk were disallowed by the order:— Costs on appeal to Court of Appeals......|110 00 Trial fee on first trial.......... 80 00 Trial occupying more than two days on second trial 10 00 There were three trials. On the first, plaintiff was allowed to withdraw a juror. On the second, the complaint was dismissed; there was a judgment of affirmance by the general term, and a reversal by the Court of Appeals with costs to abide event.

The action, which was originally against Henry L. and Ethan A. Haven, endorsers, as well as Stephens, maker of certain promissory notes, was continued against Stephens, after default of the other defendants in- answering. The facts appear in the opinion.

Appeal by the defendants from a judgment of this court, entered upon a dismissal of the complaint at a trial of the action. This action was brought against the defendants, who were sureties on an undertaking given in an action in which the plaintiff, Latham M. Jaggar, recovered judgment for damages against Thomas Cunningham, a marshal of the city of New York, for the wrongful conversion of goods.

The action was brought to recover $70, rent of a stable in the city of New York for the months of August and September, 1878. The complaint alleged that the defendant hired the premises on May 1st, 1878, for a term of one year ending May 1st, 1879, at an annual rent of $420, payable in monthly instalments of $35 on the first day of each month, in advance.

Appeal by the defendants from an order of this- court; made at special term, removing two joint receivers and appointing a new one. The plaintiff, Washington E. Conner, and the defendants, William Belden, Charles D. Belden and Henry Belden, Jr., composed the firm of William Belden & Co., with Jay Gould as special partner. The copartnership was formed on March 15th, 1877, for the purpose of dealing in gold, stocks, bonds and oth'er securities.

The action was brought to recover $45, being the sum of $50 bid for a horse belonging to the plaintiff, and put up for sale at auction by the defendants by order of the plaintiff, less $5, the defendants’ commissions. The defendants answered by a general denial and a tender of $32, which they paid into court.

Application to vacate a forfeited recognizance. One William Porter was charged before a police justice of the city of New York with having committed a burglary, and was held to bail in the sum of $4000 to appear at the Court of General Sessions and answer any indictment that might be found against him, and gave a recognizance therefor, with the applicant, Wilhelmina Williams, as surety.

<p>Appeal from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court dismissing the complaint, entered in the lifetime of Margaret Fisher and George King, a</p> <p>The complaint charged that the defendant, George King, was the owner of the premises 431 Seventh Avenue, New York, and that the plaintiff was a tenant therein, and that the defendant procured one Farley to unlawfully and forcibly remove plaintiff, destroying her furniture and carrying away $575 in money.</p> <p>The answer admitted the defendant was the owner of the premises, but denied the rest.</p> <p>King having died after trial, his executors were substituted as defendants ; and Margaret Fisher having died subsequent to the hearing of the appeal at the general term of the Marine Court, her administratrix was substituted as plaintiff.</p> <p>On the trial the plaintiff proved she was in occupation of, and possessed of, a room and two bedrooms in said premises, which she had hired from one Becker, King’s tenant. King, on the 31st day of December, 1874, obtained a warrant to dispossess Becker and all other persons from the justice of the Eighth District Court in the city of New York, and caused it to be delivered on that day to Cornelius Farley, marshal, to execute it and put him, King, in full possession of the premises.</p> <p>King, subsequently to the delivery of the warrant to the officer to execute, sent plaintiff a note to pay the rent to Mr. Brown (the agent of King). Mr. King’s son came and told her to pay the rent to Brown, which she did, and she got a receipt for the month of January, 1875, and dated January 7th, 1875. On the 9th of January the defendant, King, not having countermanded the warrant, nor having-informed the officer of the letting to the plaintiff, Marshal Farley and his men, by the command of the warrant, came and put her property in the street.</p> <p>King wrote on back of the warrant, after the ejection of the plaintiff, viz.: “ The marshal has done his duty; settle with him. Signed, George King." When the marshal and agent informed him of the ejection, he said the marshal was simply doing his duty in putting the people out.</p>

<p>The plaintiff sned the defendant in a District Court in the city of New York for deceit in having obtained goods from him by falsely representing that he was over twenty-one years of age, and on the trial was the only witness in 1ns own behalf to prove the making of the representation, in regard to which he was contradicted both hy the defendant and the defendant’s father, who was present at the time the representation was alleged to have been made; and the plaintiff’s evidence that he had sold no goods on credit to the defendent, prior to the time when the representation was alleged to have been made was impaired by certain receipts given by the plaintiff’s firm to the defendant, and tending to show such sales prior thereto. The justice gave judgment for the plaintiff, but on appeal to this court it was reversed, on the ground that the evidence was not sufficient to sustain it, as it was made on a finding of facts by a single judge, although if it had been on the verdict of a jury it would have been sustained.</p>

The action was brought to recover an unpaid part of the 27rice of goods sold and delivered to the defendants, who at the time of the sale and delivery were copartners, composing the firm of Moran & Canavan. By agreement between the two 2>artners the firm dissolved, Moran keeping the firm assets, continuing the business, and agreeing to pay the firm debts.

<p>Appeal from a judgment in favor of the defendant, entered upon report of William H. Van Cott, referee, to hear and determine the issue.</p> <p>This action was brought to foreclose a mortgage on land on account of non-payment of the principal, due at the option of mortgagee at the expiration of twenty days after default in payment of interest.</p> <p>The defense was, that at the time the interest fell due the mortgagor and mortgagee mutually agreed that the interest should be paid twenty days thereafter at the place of business of the mortgagor, and that at that time and place the mortgagor was ready and willing to pay, but that no demand was made.</p>

<p>Where a witness has testified from his own recollection to certain transactions in which he took part, e. <7., interviews between himself and the defendant, a written memorandum of such transactions kept by him, and the entries in which were made at the time of the occurrence of the transactions, cannot be put in evidence to corroborate or support the testimony of the witness, and the allowance in evidence of such a memorandum is an error for which the judgment will be reversed, and the appellate court will not consider the evidence in the case for the purpose of determining whether the exclusion of the written memorandum would have changed the result.</p>

<p>Where upon a motion to vacate an order of arrest the proceedings of the "board of trustees of a private corporation were material, and the sworn official records of the trustees’ meetings were introduced by the defendant and were attacked hy the plaintiff, mainly hy his own unsupported affidavit, as having been fabricated and falsified,—Jlsld, that however strongly the plaintiff’s evidence on this point might he supported on a trial of the issues, the court, upon a motion to vacate the order of arrest, were bound to rely upon the sworn official records.</p> <p>Where the plaintiff, being the owner of certain corporate stock, had executed, ail assignment of such stock to the corporation, together witli a power of attorney to the president thereof to make all necessary transfers on the company’s books, and the defendant as such president made endorsements oil the plaintiff’s certificate of stock which was in the possession of the company, for the purpose of effecting such transfer, and the plaintiff subsequently sued the defendant for the conversion of such stock, and on a motion to vacate an order of arrest which lie had obtained admitted that he had executed the assignment and power of attorney, and that he had hastily glanced over it before executing it, and had then had full opportunity for examining it, but alleged that false representations had been made to him as to the contents thereof : held, that upon the motion to vacate an order of arrest the plaintiff must be held bound by written agreements signed by him after full opportunity for examination, and that as these papers showed that the acts of the defendant in regard to the stock certificates had been only according to the authority given him by the plaintiff that the order of arrest should be vacated.</p>

<p>Appeal from a judgment of this court entered upon a verdict for plaintiff, and from an order denying a motion made upon the minutes for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment entered upon a decision of the general term, of the Maine Court, affirming a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial upon the minutes.</p> <p>The facts are stated in the opinion.</p>

The plaintiffs, in two actions brought to foreclose mortgages made by the defendant Rinaldo, obtained an order to show cause why a receiver of rents and income should not be appointed pedente lite, dated August 19th, 1878, by which the defendant named was enjoined from collecting or interfering with the rents.

<p>Appeal from an order made at special term denying a motion to vacate an order for examination of a judgment debtor and for other relief.</p> <p>The facts sufficiently appear in the opinion.</p>

This was an action for specific performance of a contract for the purchase of land. The defense was that the plaintiff had not a good title to the premises. The land is part of the estate of which Louisa W. Cuming, the sister of the plaintiff, died seized on the 25th of August, 1869, and which she derived from her mother by devise.

<p>As against a mere trespasser upon its track, a railroad company is not bound to use the most modern apparatus and most effectual contrivances for managing and operating its trains, and therefore in an action against such a railroad company for causing the death of one who was, at the time he received the injuries which caused his death, a trespasser upon the company’s track, evidence tending to show that the accident might have been prevented had the company used certain improved air-brakes in general use on railways is not admissible.</p> <p>Where the deceased, who was a trespasser upon the defendant’s railroad track, had fallen on the track, and was lying in such a position that a passing train would notstrikehim,—Held, that it was not negligence in the engineer of an approaching train not to stop the train on seeing the deceased lying on the track, and that the railroad company were not liable for the effect of the train striking the deceased in consequence of his moving when the train had almost passed him.</p>

The plaintiff in this action was employed as assistant janitor in the sheriff’s office of the county of New York, and rendered services as such from the 2d of January, 1871, to the 1st of January, 1874. The plaintiff gave no evidence of the precise manner of his appointment.

<p>It seems, that a married woman may form a valid contract of partnership in trade with her husband.</p> <p>Where a husband and wife had formed a partnership and done business under the name of A. & Co.,—Meld, that they had not violated the statute (L. 1833, c. 281) to prevent persons from transacting business under fictitious, names, and that they could recover in a suit in their joint names for goods sold and delivered by them in such partnership name.</p>

On the 1st of March, 1879, an order in “ supplemental proceedings ” was granted by one of the judges of this court, requiring the defendant to appear “before me or some other justice at chambers, &c.” Upon the return day of the order the defendant appeared and raised the objection that the order was irregular and void, because it contained the words “ or some other justice of this court,” and made a motion to dismiss the order upon that ground, which motion was denied, and…

The defendant was the owner of the premises No. 426 West 51st Street, in this city. On the 25th of March, 1875, the plaintiff, while passing the said premises of the defendant, slipped upon ice which had accumulated upon the sidewalk and fell upon an iron fence in front of defendant’s premises and injured herself. This action was commenced in the Marine Court to recover damages for such injury, and resulted in a verdict for the plaintiff for $250.

<p>Appeal by the plaintiff from an order of this court at special term sustaining a demurrer, to the complaint.</p> <p>The complainant alleged as a first cause of action as follows :—</p> <p>“ That prior to and at the time of the execution of the agreement.hereinafter mentioned between the plaintiff and Margaret McMillan, the plaintiff was the owner in fee simple and in possession of a lot of land on the nprtherly side of Forty-third Street in the city of Nerv York, between the , Ninth and Tenth Avenues, distant two hundredfeet easterly from the easterly side of Tenth Avenue, twenty-five feet wide on Forty-third Street and one hundred feet and four inches deep parallel with those avenues, being the same lot of land described in the said agreement as the lot of land of which the plaintiff is the owner, and the said Margaret McMillan as the widow of John McMillan, the deceased (who at the time of his death was seized of an estate of inheritance therein), was entitled to dower in a lot of land immediately adjoining on the westerly side thereof the said lot of the plaintiff, and being fifty feet wide on Forty-third Street, and one hundred feet four inches deep, parallel with the avenues aforesaid, and being the same lot of land described in the said agreement as the lot of land of which she is the owner.</p> <p>“ The plaintiff being about to erect a house upon the lot of land so owned by him on the 15th day of October, 1871, the plaintiff and the said Margaret McMillan executed and delivered to each other an agreement in writing in the words following:</p> <p>This agreement, made the fifteenth day of October, 1871, between John Scott, of the city, county and State of New York, of the first part, and Margaret McMillan, administratrix, of the same place, of the second part, witnesseth : That whereas the said party of the first part is now owner of premises on the north side of Forty-third Street, between the Ninth and Tenth Avenues in said city, and party of the second part is owner of premises immediately adjoining on the westerly side thereof, as the same are divided by a line two hundred (200) feet east of the easterly side of the Tenth Avenue, and running parallel thereto from the northerly side of Forty-third Street aforesaid, to the centre line of the block between Forty-third and Forty-fourth Streets; and whereas the said party of the first part is about to erect and build a dwelling-house upon the premises owned as aforesaid by him, so that the westerly wall of said dwelling is to be a party-wall. Stamp.</p> <p>“ Now, therefore, in consideration of the premises and of the sum of one dollar each to the other paid, the receipt whereof is hereby acknowledged, it is hereby understood, covenanted and agreed by and between the parties for themselves, their heirs and assigns, that the said party of the first part in building the said dwelling-house may make use of, occupy and possess the land and premises of the party of the second part immediately adjoining, for the purpose of building and erecting a party-wall for said house sixteen inches in width, so that the said wall may stand and be one-half in width upon the lot of the party of the first part, and the other half in width upon the lot of the party of the second part, as the same are so divided by said line two hundred (200) feet from the corner of Tenth Avenue and Forty-third Street, and the party of the second part may in like manner use the said land of the party of the first part immediately adjoining his in like manner, and for a like purpose, but no part of the fee of said respective lots shall pass to or be vested in either of the parties hereto, their heirs or assigns.</p> <p>“ Second.—That the said party of the second part or his legal representatives may at any time hereafter use and enjoy the said party-wall as the westerly wall of whatever dwelling he may erect on his said lot in common with the said party of the first part, on he or they paying one-half of the value thereof, or of so much as is intended to be used as hereinafter provided.</p> <p>• “ Third.—If the parties hereto or their legal representatives cannot agree between themselves as to the value of said wall, then the party of the first part shall appoint a practical builder or mason on his behalf, and the party of the second part shall also appoint a practical builder or mason on his behalf, and the two persons thus appointed will proceed to appraise and vahie the said wall, and the amount of valuation thus arrived at is agreed to be taken and considered as the value thereof. In case such appraisers should disagree, they shall have power to appoint a person as umpire, and the parties hereto agree to abide by the determination of such arbitration.</p> <p>“ The party ■ of the second part, on paying one-half the amount thus appraised or agreed on as the value of the said wall, shall be at liberty to use the same, as provided in the second clause of this agreement.</p> <p>“ Fifth.—It is understood that if the party of the second part should first build a dwelling-house on his lot, then the same restrictions as to valuation and the paying one-half the appraised or agreed value of any wall he may build as are now assumed by the party of the second part, are to apply to and be assumed by the said party of the first part.</p> <p>“ In witness whereof, the parties hereto have set their hands and seals the day and year first above written.</p> <p>“ JOHN SCOTT, [l.s.]</p> <p>“ MARGARET McMILLAN, [l.s.]</p> <p>‘‘ Sealed and delivered ) in presence of )</p> <p>“Jos. Cudlipp.</p> <p>“ And that, the said agreement was acknowl edged by both the parties thereto, so as to entitle the same to be recorded, and was recorded in the office of the registrar in and for the city and county of New York, on the 10th day of November, 1871.</p> <p>“The plaintiff further states that afterwards, and after the delivery and recording of the last-named agreement, and on the faith thereof, the plaintiff proceeded to and did erect a house upon his said lot of land, and in so doing erected a party-wall for the said house sixteen inches in width and sixty-one feet in depth in a northerly direction, commencing on the northerly side of West Forty-third Street and standing one-half in width upon the lot of land of the said Margaret McMillan, mentioned in the said agreement, and the other half in width upon the said lot of the plaintiff, and in all respects conformable to the said agreement, and that the plaintiff has performed all the conditions of the said agreement on his part to he performed.</p> <p>“ The plaintiff further states that afterwards, and on the 7th day of December, 1875, the defendant purchased of the said Margaret McMillan and of John McMillan and Elizabeth Clara McMillan, who were heirs-at-law of the said John McMillan, deceased, and as such heirs-at-law were seized in fee simple thereof as tenants in common, the said lot of land described in the said agreement as the lot of land owned by the said Margaret McMillan, and thereupon the said Margaret McMillan, John McMillan and Robert Auld, as the special guardian of the said Elizabeth Clara McMillan (who was then an infant), executed to the defendant and the defendant received and accepted from them a deed of the said last-named lot of land, including the one-half in width of the said party-wall standing thereon, granting and conveying the same to him in fee simple, subject to the aforesaid agreement between the plaintiff and the said Margaret McMillan, of which agreement the defendant had actual as well as constructive notice, and was fully informed prior to and at the time of the execution and acceptance by him of the deed aforesaid of the last-named lot of land, and the plaintiff is advised and believes that the said agreement was an incumbrance upon and ran "with the land so purchased by and conveyed and granted to the defendant.</p> <p>“ The plaintiff further states, that afterwards and on or about the 1st day of Juty, 1876, the defendant commenced the erection of a house upon the last-named lot, and from thence until on or about the 10th day of August, 1876, continued the erection thereof until the said house was finished and completed on or about the last day named; and that in the erection of the last-named house the defendant used and enjoyed the whole of the said party-wall as the westerly wall thereof in common with the plaintiff, and that the defendant in the erection of the said house extended the said party-wall upwards the entire length and width thereof two feet or thereabouts, and also extended the said party-wall (which is one entire compact wall, and forms the easterly wall of the said house of the defendant,) the full width of the same nine feet laterally and in a northerly direction as far as the house so erected by him extends in that direction, in continuation of and beyond the northerly terminus of the said party-wall so erected by the plaintiff, and to the height of the house so erected by him, and that the said wall as so extended stands one-half thereof upon the said lot of the plaintiff and one-half thereof upon the said lot of the defendant.</p> <p>“ The plaintiff further states, that as he is advised and believes, the defendant had the right to so extend the said party-wall, both upwards and laterally, under and pursuant to the agreement aforesaid between the plaintiff and the said Margaret McMillan, and that except for the said agreement such extension would have been without the license or consent of the plaintiff and without right or lawful authority, and that the defendant thereby adopted, ratified and confirmed the said agreement, and became and is estopped from, denying that such extension was made under and pursuant to the said agreement, and is bound in equity, if not at law, to perform the whole of the said agreement, and pay the plaintiff the one-lialf of the value of the said party-wall erected by the plaintiff.</p> <p>“ The plaintiff further states, that the plaintiff and the defendant have been unable to agree between themselves as to the value of the said party-wall, and being unable to agree the plaintiff has appointed on his part a practical mason, to wit: one William Thomas, to appraise and value the said party-wall, and has notified the defendant in writing of the said appointment, and demanded of the defendant that he should appoint on his part a similar appraiser, to appraise and value the said party-wall; but the said defendant lias neglected and refused to appoint a practical builder or mason, or any other person on his behalf, to appraise and value- the said party-wall, although a reasonable time in which the defendant might and ought to have done so has elftpsed.</p> <p>“ The plaintiff further alleges, that the reasonable value of the whole of the said party-wall is sixteen hundred dollars, and .that the defendant has hitherto refused and still refuses to pay the plaintiff one-half of the aforesaid value of the said party-wall, though requested so to do, and entirely denies his liability to pay the plaintiff any sum whatever for the use and enjoyment by the defendant of the said party-wall.”</p> <p>The complaint also contained a second cause of action. The defendant, reserving his right to answer the second cause of action, demurred to the first alleged cause of action, on the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>The court at special term ordered judgment on the demurrer, with leave to the plaintiff to amend on payment of costs.</p>

Appeals from three judgments of foreclosure and sale made by this court, and also from an order denying a motion to consolidate the three suits. The three suits were for the foreclosure of three mortgages, all on the same property, made by Allan Hay to three several parties, and the payment of which had been assumed by the defendant, David M. Koehler, to whom the property had been transferred by Hay.

<p>Appeal from a judgment of the Marine Court of the city of New York affirming a judgment entered on a decision of the Chief Justice of that court after a trial before him without a jury.</p> <p>The facts are stated in the opinion óf Judge Robinson.</p>

<p>A judgment oí ouster in an action in the nature of quo warranto to determine the title to a public office is not conclusive upon, or evidence against, one not a party to the suit, nor claiming under such a party.*</p> <p>A. was appointed assistant cleric of a district court in New York City, and subsequently removed by the justice thereof, and B. appointed ; and B. thereafter having been removed, and C. appointed; in an action in the nature of a quo warranto on the relation of B. against C., a judgment ousting 0. and declaring B. entitled to the office was rendered. Before ¿lie entry of the formal judgment, A., with the consent of C., resumed possession of the office under his original appointment. In an action in the nature of quo warranto on the relation of B. against A. to recover possession of the office,—HeZiZ, that the judgment in the action on the relation of B. against C. was not binding on or conclusive against A.*</p> <p>The office of assistant clerk of a district court of the city oí New York and that of member of Assembly are not incompatible, and serving in the latter capacity is not a vacation of the former office.*</p>

<p>This was an application by an assignee for the benefit of creditors for leave to bring certain suits, and also for leave to examine, under the provisions of the General Assignment Act, the persons who shared in, and had knowledge of, the facts on account of which it was proposed to bring these actions.</p> <p>The application ivas based on affidavits which tended to show, in substance, that the said William B. Burtnett, with the co-operation of Jennie (his wife) and one Samuel Samuels, with the intent to hinder, delay and defraud his creditors, and prevent his stock in trade, worth about $28,000, or its proceeds from being applied to the payment of their demands, did procure a fictitious account to be stated between himself and his said wife, and an action thereon to be brought in this court in the name of said Samuels, as the nominal plaintiff, for the benefit of said Jennie Burtnett, and a judgment thereon to be entered against him for over $11,000 five days before said assignment; and did also procure his said stock of goods to be sold out on ar execution issued on said judgment, and the proceeds thereof exceeding $9000 to be paid over by said Samuels to said Jennie Burt-nett five days after said assignment.</p>

The action was brought to recover damages for seizing and carrying away personal property belonging to the plaintiffs, consisting of a large number of articles used by them iii carrying on a printing business. On the trial the plaintiffs called as a witness one Stover, who had been superintendent of their printing establishment at the time of the taking of the property, to prove what was taken, and its value.

<p>Appeal from a judgment of this court, entered on the verdict of a jury, and from an order denying a motion made on the minutes for a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>The statute (L. 1851, c. 134, § 33) which provides that “no surveyor shall give evidence in any cause depending in any of the courts of the State, or before arbitrators, respecting the survey or measurement of lands which he may have made, unless such surveyor shall make oath, if required, that the chain or measure used by him was conformable to the standards which were the standards of the State At the time such survey was made,” does not apply to a surveyor who is called merely to prove the cubical contents of an excavation which he has measured,— a matter which involves only a mathematical computation from measurements that might be made by any one, whether a surveyor or not.</p>

<p>A person may legally name himself, or change his name, or acquire a name by reputation, general usage and habit.</p> <p>A person has the right to use his own name as a trade-mark to designate an article which he produces and sells, although another person of the same name has previously produced and sold the like article with the same designation, and has made the use of the designation valuable.</p> <p>Where, however, the later use of the designation in such a case is made for the purpose of leading the public to believe that the articles so designated are those of the prior user of the designation, and thus depriving such prior user of his gains, the court will restrain such dishonest use.</p> <p>The test is whether he uses the name honestly and fairly in the ordinary prosecution of his business, or dishonestly to palm off his own commodity as the production of another.</p> <p>The plaintiff’s original name was Henry Carter, and the defendant, his eldest son, was born in England, and his name, as registered at birth, was also Henry Carter. Both came from England to this country, where the plaintiff assumed the name of Frank Leslie, and published various newspapers under titles of which the -words 11 Frank Leslie’s ” formed,in each instance,part. These publications became widely known, and their titles obtained a pecuniary value. The plaintiff also obtained an act of the Legislature changing his name from Henry Carter to Frank Leslie ; directed his son, the defendant, to take that name, and his son by that name was christened and married here. Afterward the son, in obedience to his father’s wishes, and under threats of disinheritance, assumed the name of Henry Leslie. By this name, while employed by his father, he signed receiptsand became known to many acquaintances, but to his wife and many of his relations he was still known as Frank. He had been further influenced to assume the name of Henry by being told that he was prohibited from using the name of Frank by an order of court. Upon learning that there was no such order, he resumed the name of Frank Leslie, and, in connection with others incorporated under the name oi the New York Publishing Company, commenced the publication of a serial, entitled “ Frank Leslie, Junior’s, Sporting and Dramatic Times.” An injunction against this use by the defendants of the words “ Frank Leslie ’’ was asked for by the plaintiffs. Held, that such injunction should be denied.</p>

Two of the grounds assigned for the demurrer were that there was a ■ defect of parties-plaintiff, in that it appeared from the complaint “ that the said Alexander M. Fisher should be the plaintiff,” and that the complaint did not state facts sufficient to constitute a cause of action.

The action was brought to recover wharfage claimed by plaintiff for the use and occupation by defendant of the slip between piers 48 and 49, East River, New York. The plaintiff’s assignor, Thomas C. Burke, was the lessee from the city of the wharfage accruing from the use and occupation by vessels of pier 48, for the term of five years from May 1st, 1876, on which date the defendant’s floating dry dock lay in the slip, secured to the bulkhead between the piers and to pier 49.

<p>Appeal from a judgment entered upon a verdict rendered for plaintiff at a trial of the cause, and from an order denying defendant’s motion for a new trial on the minutes.</p> <p>The facts are stated in the opinion.</p>

The action was brought by the plaintiff, as owner of twenty-five shares of the full paid capital stock of the defendant, upon the following facts : A meetirig of the stockholders had passed a resolution that the capital stock be reduced from $500,000 to $300,000 by returning $100,000 to the stockholders, and that the latter be required to relinquish two-fifths of their stocks pro rata, according to their amounts.

<p>The denial of a motion made at trial term to postpone the trial of a cause, on the ground of the absence of a material witness, cannot be reviewed upon appeal from an order made at special term by a judge other than the judge who presided at the trial, upon a motion for a new trial based upon affidavits alleging surprise and mistake.</p> <p>It seems, that the only modes by which such refusal of the court can be reviewed upon appeal are, either by making the affidavits used on the application for postponement a part of the record and appealing from the judgment, or by suffering a default at the time of the court’s refusal to postpone, and appealing from an order denying a motion to open such default.</p>

<p>Appeal from a judgment rendered for the defendant at a trial of the cause by the court at special term.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment entered upon a verdict for plaintiff, tried before Larremore, J., and from an order denying a motion for a new trial upon the minutes.'</p> <p>The facts sufficiently appear in the opinion.</p>

The action was brought to recover the sum of $2747 30, alleged to remain unpaid of the sum of $6428 57, the purchase price of a bond and mortgage sold by plaintiff to defendants, and delivered by plaintiff to one Adolph Levinger, alleged in the complaint to be defendant’s attorney. The defense was, that the defendants had paid in full for the bond and mortgage by delivering the sum of $6428 57 to Adolph Levinger, alleged in the answer to be plaintiff's attorney.

Parker, justice of the District Court in the city of New York, for the Third Judicial District. The action was brought by the assignor of the claims of certain discharged conductors of the cars of the defendant to recover the aggregate of sums of money varying from ten to fifteen dollars, earned by the conductors just previous to their discharge.

<p>Where by the terms of a fire-insurance policy insuring the owner, the loss is made payable to the mortgagee of the premises, the policy operates as an independent insurance to the extent of the mortgagee’s interest, the same as if the mortgagee had taken out a separate policy. The owner is under no obligations to furnish proof of loss for the mortgagee’s benefit, and where the owner refuses to do so the mortgagee is entitled to make it, unless, by the express terms of the policy, it is provided otherwise, as the instrument in such a ease must he construed in respect to its object, which is indemnity, so as to fully carry out and give effect to the intent of it.</p> <p>If there he any formal defect in the preliminary proofs which might have been supplied had the objection been made when the proofs were presented, and the underwriters do not put their refusal to receive the proofs upon that ground, but upon some other, or refuse generally without giving any reason for so doing, they cannot afterwards defeat the policy for such formal defect which good faith required them to point out when the proofs were presented.</p>

<p>Appeal from a judgment entered upon a verdict for defendant.</p> <p>The facts are stated in the opinion.</p>

<p>A testator left land to his two sisters to hold for their mutual nse and benefit, the net rents to be equally divided between them, the management to be in the hands of one named executrix, and on their decease, if they should not marry and leave issue, to go to the testator’s nephews and nieces and their issue : held, that this provision did not suspend the power of alienation heyond two lives in being at the death of the testator, and was a valid limitation.</p> <p>The testator further provided, that if both or either of the sisters should marry and leave issue, that then one-half of the land should go to such issue ; but if neither should marry, or marrying leave no issue, tlie survivor should pay expenses and collect rents, and invest the deceased’s part of the net rents, which should be divided, after the death of the survivor of the sisters, among the testator’s nephews and nieces, or their issue. And it was further provided, that such surviving sister should have power to name the executor or executrix to sell the property, and carry into effect such division : held, that the part of this provision directing accumulation was void ; that it did not however invalidate the other-parts, and that the rent so directed to be accumulated went, as it accrued, to the, nephews and nieces as the persons presnmpth ely entitled to the next eventual estate.</p> <p>Held, also, that the remaining provision, that the surviving sister was to have th< management of the property and to collect the rents and pay the expenses until her death, with power to name the executor or executrix to sell, did not create ar express trust as it was not one of those authorized by the statute,but that the intention of the testator in this respect could, under other provisions of the statute, be carried out and executed as a power in trust.</p> <p>Held, also, that if the nephews and nieces, upon the death of the first sister, took a legal estate in one-half of the same extent as their beneficial interest, they took it charged with the execution of such power in trust.</p>

<p>Appeal from a judgment of this court in favor of plaintiff, entered on the decision of a judge at trial term.</p> <p>The "facts are stated in the opinion.</p>

<p>The Mechanics’ Lien Act for the city of New York of 1875 (L. 1875, c. 379, passed May 17th, 1875), was intended to provide a complete remedy for the enforcement of mechanics’ liens and to supersede the pre-existing statutory provisions upon that subject, and it repealed by implication all such provisions, so far as they were not in accordance with or were covered by its provisions on the subject.</p> <p>The provisions, therefore, in the act of 1863 (L. 1863, c. 500, § 11), providing that the lien shall cease after one year, unless by order of the court it is continued and a new docket made stating the fact, was superseded by the provisions of section 8 of the act of 1875, that the lien shall cease in ninety day's unless an action is commenced within that time to enforce it, and a notice is filed with the county clerk of a pendency of the action; and it is not neclssary, therefore, that the provision of section 11 of the act of 1863 should be complied with in order to continue the lien.</p>

<p>That kerosene oil is a refined coal oil, or that it is a refined earth oil, are not such facts as can be judicially noticed or found without, evidence.</p> <p>It seems, that a clause in a policy of fire insurance, declaring the policy void if “ camphene, burning fluid, or refined coal or earth oils ” are ■* used ” on the insured premises, will not be construed to intend the ordinary use of kerosene oil for illuminating purposes.</p>

Appeal by defendant from an order made at special term on motion of one John Dowling, substituting him as plaintiff in the action. The facts are stated in the opinion.

Appeal by the plaintiffs from an order sustaining a demurrer to the complainant and from the judgment entered thereon.

The action was brought to recover a balance of deposit made by the plaintiff with the defendant, and interest thereon. The defendant claimed to have paid out the whole balance on checks drawn by the plaintiff.

Appeal by the defendant Galland from a judgment of the general term of Marine Court, affirming a judgment of special term in favor of plaintiff. The action was brought to recover from defendants as copartners commission upon an order procured from one Goodsell for a hydraulic elevator to be manufactured and put up.

<p>Appeal by the defendant from an order of this court made at special term.</p> <p>The plaintiff in this action claimed the delivery from defendant of certain personal property. The defendant procured a return to him of the property by giving the usual undertaking. Plaintiff served a complaint in the action demanding damages only, and not the customary judgment for a return of the property claimed. Defendant answered: the cause was tried, and resulted in a verdict for $302 40 damages for plaintiff. Plaintiff subsequently brought an action against the sureties on defendant’s aforesaid undertaking, but was defeated on the ground that, by the terms of the undertaking, the sureties were to become liable to plaintiff “ if delivery of the property should be adjudged,” and he had no such judgment.</p> <p>Plaintiff then applied in this action at special term for an amendment of the judgment to make it a judgment directing the return of the property, and in case a return thereof could not be had, then that plaintiff have judgment for $302 40, the value thereof, &c. The motion was opposed, and the court ordered that the judgment be vacated and set aside on payment "by plaintiff to defendant of $10 costs of motion and the statutory costs of trial and necessary disbursements since the joining of issue; and that plaintiff thereupon have twenty days from the date thereof tó serve his amended complaint, and the defendant twenty days thereafter to answer, otherwise the motion denied. From this order the defendant appealed.</p>

Appeal by the plaintiffs from a judgment of the Marine Court of the city of New York, affirming a judgment of that court entered on the report of a referee to hear and determine the issues. The referee dismissed the complaint on the merits, after hearing evidence on both sides. No exceptions were filed to the referee’s report. The general term of the Marine Court affirmed the judgment entered on his report.

Appeal by the defendants, Louis Lincks and John Lincks, from a judgment of this court entered on a decision at special term. The action ivas brought to set aside two conveyances made to the defendants, Louis Lincks and John Lincks, by their father and co-defendant Jacob Lincks, on the ground that they were fraudulent as against the plaintiff, who was a judgment creditor of Jacob Lincks, and whose execution had been returned unsatisfied.

<p>Appeal by the plaintiff from a judgment of this court dismissing the complaint, entered on the report of a referee to hear and determine the issues.</p> <p>The facts are stated in the opinion.</p>

<p>An order of the general term of the Marine Court reversing an order of the special term of that court granting a new trial and ordering judgment on the verdict is a final determination, and the judgment entered on it is in effect the judgment of the general term of the Marine Court, and an appeal from it can he taken to the general term of this court.</p>

On the 14th day of November, 1876, upon the application of the defendant, Mr. Justice Speir, of the Superior Court, issued a warrant under what is commonly called the Still-well act for the arrest of the plaintiff, and on the 15th of November the sheriff arrested the plaintiff and produced him in court.

The summons was in the names of “ Charles S. Martin and John Godfrey, Jr., as assignees of Charles S. Martin,” as plaintiffs. ■ The complaint was oral and was simply for “ work, labor and services, and materials furnished.” On the trial the plaintiffs proved that they were partners, doing business under the name of “Charles S. Martin,” and under that name had made a contract with the defendants to supply them with a list of the tax-payers in Westchester County, N. Y., and…

<p>Where the plaintiff supplied groceries which were used in the defendant’s house, and the defendant himself made payments on account of them and promised to pay the balance,—Held, that this was evidence sufficient to render the defendant liable, although the plaintiff had supplied them on orders given by the defendant’s wife and had charged them to her and given the credit for them to her, and had brought an action against her for the price of them in which he had been defeated, on the ground that there was no evidence that she was carrying on business or had a separate estate.</p> <p>A wife is deemed to be acting as the agent of her husband where they are living together, and if she orders groceries for the general use of the family, although she may contract wholly in her own name and the credit is given exclusively to her under the impression that she is carrying on a boarding-house, the tradesmen upon ascertaining that this is not the fact; that the husband is in reality the principal; that the house for which the groceries were supplied was carried on by him, may resort to him as the principal.</p>

<p>Appeal from an order of this court made at special term by Van Hoesen, J., denying the application of Frank W. Fowler, an imprisoned debtor, for bis discharge from imprisonment under an execution and judgment obtained against him by Brick, and Campbell.</p> <p>The judgment creditors opposed the application on the grounds: 1st. That the judgment had been obtained for</p> <p>damages suffered by them on account of a false and fraudulent representation made to them by the defendant in regard to the solvency of the Peekskill Iron Company, by which they had been induced to supply them goods on credit; and 2d. That the defendant, after the commencement of the suit, but before verdict or judgment therein, filed a petition in bankruptcy, on which he had been adjudged a bankrupt and an assignment of all bis property had been made, and he had obtained a discharge. It appeared that no assets had ever come to the hands of the assignee in bankruptcy.</p>