Volume 8 — Jones & Spencer's New York Superior Court Reports

This was an action for a divorce a vinculo matrimonii. On the trial the plaintiff called the alleged paramour, and in the course of the direct examination showed him a letter and asked him whether he wrote it. The court instructed the witness he might decline to answer whether he wrote the letter or not. The witness declined to answer on the ground that his answer would criminate himself.

Appeal by plaintiff from a judgment. The facts sufficiently appear in the opinion.

The action was brought to charge the defendants as acceptors of a draft for three thousand dollars, upon a written promise to accept, under the statute.

The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff. More than twenty days after answering, the sheriff moved for leave to amend bis answer, and set up a second defense. This motion was denied on the ground that the proposed amendment tailed in. constitute any defense or counter-claim, and the defendant appealed.

On July 21, 1874, John Pullman and Samuel C. Pullman recovered in the marine court of the city of Mew York, a judgment in their favor… Held: that to authorize the appointment of a receiver in section 298 of the Oode, the proceedings should be against the debtor to reach his property generally, and not, under the 294th section, of third persons as to property of the debtor in their hands, and that without such personal proceeding against a debtor, a receiver could not be…

Appeal by the defendant from an order denying a motion for a new trial and from a judgment. The facts sufficiently appear in the opinion.

Appeal by defendants from judgment entered on report of referee. The action was brought upon a contract made between plaintiffs and defendants, by which the plaintiffs promised to deliver to the government of the United States at the Bosque Rodondo Reservation, as many pounds of beef as might be called for by the government commissary.

Defendant moved at special term— “That plaintiff be required to make his complaint more definite and certain in this, to wit: That plaintiff be required to allege in his complaint, by apt and proper allegations, so that it shall clearly appear whether the said plaintiff elects to rescind and hold void the said contract of purchase and sale in the complaint set forth, or whether he elects to affirm the same and have a judgment for a specific performance thereof, or damages…

One Chamberlain had a contract with the defendant in which it was provided, that Chamberlain should build a house for the defendant, furnishing the materials therefor, among other things, iron work called cresting. By the terms of the contract, Chamberlain would be repaid for this cresting in the last instalment provided to be paid by the defendant.

The order appealed from was, ‘ ‘ that the defendant have leave to amend his answer in this action, pursu- . ant to said proposed amended answer, on payment of plaintiff's costs and disbursements since the notice of trial, to be adjusted by the clerk.” The defendant appeals from so much of the order, c< as makes it a condition of granting the defendant leave to amend bis answer, the payment by the defendant of the plaintiff’s costs and disbursements since notice of the trial.”

Motion by defendant for a new trial under § 268 of the Code. The action was tried at special term.

<p>Appeal from a judgment entered upon the verdict of a jury.</p> <p>The points discussed and considered upon the appeal appear fully in the opinion of the court.</p>

This suit was commenced by the service of a summons only for relief. Immediately after its commencement, the plaintiff, on an affidavit showing the nature and object of the suit, and the materiality of the examination of several of the defendants as parties before trial, applied for the examination of the defendants, Daniel J. Noyes, Henry W. Baldwin, and Jeremiah H. Stedwell. An order to this effect was obtained, and summons issued.

<p>In an appeal from a judgment only, the refusal of the court (in consequence of plaintiff’s objection thereto) to allow the jury to take with them, on retirement, for consultation, three certain bills which had been received in evidence, is not properly reviewable by the general term.</p> <p>The refusal was a matter resting solely within the discretion of the court.</p>

<p>ORDER OF INTERPLEADER.</p> <p>Where the affidavit on which the order was made was sufficient to authorize the same under § 123 of the Code, and the opposing affidavits do not show any real grounds for refusing such order, the order should be affirmed.</p> <p>The validity of an order of another court, annexed to the moving papers, in support ,of the motion, could not be determined on the motion, but was a question to be determined on the trial of the action.</p> <p>Collusion between the party to whose rights plaintiff succeeded and the party claiming under such an order of another court, was not sufficient ground for refusing such the order of Interpleader, so long as the party applying for the same did not appear to be a party to such collusion.</p>

<p>Appeal by defendant from order of special term granting him leave to amend his answer.</p>

<p>Appeal from order of special term sustaining demurrer to counter-claims contained in answer.</p>

<p>Appeal from a judgment entered upon the decision of a single judge, (without a jury) dismissing the complaint.</p>

The complaint alleged that the defendants were the owners, and in the possession, making alterations and repairs of the premises known as the westerly portion of No. 52 Wall street, in the city of New York.

The action is brought to recover of the defendants the balance of eighty-four dollars and seventy-two -cents for services for the months of January and February, 1872, at the rate of one thousand five hundred dollars a year ; also for a breach of contract alleging that on January 5,1872, the defendant agreed to pay the plaintiff as head clerk at the rate of two thousand dollars a year, and that he continued to serve the defendant from January 1, 1872, until March, 1872, when…

The action is to recover the price of lemons sold by the plaintiffs to the defendants at public auction. The defendants refused to take delivery, and the lemons were then resold at public auction and the proceeds of sale credited upon the claim. The goods arrived at New York by the steamship Alexandria from the Mediterranean, shortly before the day of sale, and were put into the hands of auctioneers, who had at the same time the selling of the rest of the cargo of the vessel.

This case comes before the court upon exceptions taken by the plaintiffs upon the trial, and ordered to be heard at general term in the first instance. It was an action of ejectment brought to recover certain premises in the city of Hew York.

The action was brought to recover the balance of an account alleged to be due from the defendants to the plaintiff for his services rendered to them as their traveling agent in selling merchandise. The answer contains a general denial, and sets up a counter-claim for the balance of moneys due the defendants on the sale of stock of the East Side Association.

The plaintiff is the owner of 97 & 99 Lewis street,, tenement houses, the rears of which abut upon the yard; also of No. 97 Lewis street, belonging to the-defendant; and this suit is brought to recover damages for water which flows from defendant’s yards into the cellars of the plaintiff’s houses in such quantities as-to soak and cover the floor of the cellars, and render them permanently unfit for use, and also to injure the walls and other portions of the building, and…

This was the second trial of an action to recover the value of a trunk and its contents. Upon the first trial the plaintiff had a verdict, which was set aside upon appeal (see 37 Sup'r Ct. Rep. 516). The facts, so far as they relate to the point then decided, are so fully stated in the report of the first appeal, that it is unnecessary to re-state them.

The action was upon a written guaranty of payment-of a bond and mortgage, made by one Henry Smith to Cohen, the defendant, and by him assigned to the plaintiff’s testator.

The action was to recover the value or proceeds of a quantity of beef.

Thé defendant on March 12, 1875, made a motion for the substitution in its place as defendant of one Peter Weis. The motion was decided on the 15th, and was granted. On the 17th plaintiff obtained an order requiring the defendant to show cause,, on the 18th, why the motion should not be re-argued. On the-19th the motion for a re-argument was denied with ten dollars costs of motion, and an order to that effect was entered on that day.

The action was to recover for merchandise sold and delivered. The action was tried by a referee, who .found the following facts : That between September 21, 1869, and December 9, 1871, the firm of Schenck & Ryan sold to the then existing Board of Supervisors of the county of New York, and that said Board of Supervisors purchased of said firm, certain goods, wares, and merchandise, consisting of bedsteads, mattresses, and bedding.

<p>Motions for a re-argument of an appeal.</p> <p>There were three cases pending against the same defendant, involving precisely the same questions of law and fact. All the cases being at issue and ready for trial, the attorneys made the following stipulation :</p> <p>“Edwin L. Butterfield against William Radde.” It is hereby stipulated and agreed by the respective attorneys, that the verdict to be rendered in this cause now on trial . . shall control and be conclusive in the two following cases . . involving the same questions, to wit: “Mallory t>. The same defendant, and Selchow ®. The same defendant; and that judgment be entered accordingly; and that the same evidence, rulings, exceptions, and charges shall be considered as inserted in the same two cases as are in the above entitled cause, and shall be as of the record in all three of these causes against Radde.”</p> <p>The trial of the Butterfield suit resulted in a verdict for the plaintiff; whereupon, under the stipulation, judgments w7ere entered in the three suits respectively, for the plaintiffs therein. Appeals were separately taken from the judgments to the general term of this court, where all the judgments were affirmed. An appeal was thereupon taken in the Mallory case, to the court of appeals—the other two judgments being under five hundred dollars, permission to appeal was refused—and in that court the judgments of the general and special term of this court were reversed. In the meanwhile, the two judgments not appealed from, were collected by the plaintiffs therein. .</p> <p>No opinion was written in the court of appeals, nor is it known upon what ground or grounds the judgments were reversed. The attorney opposing this motion, however, stated in his affidavit, that the clerk of the court of appeals informed him “that there was a dissenting opinion concurred in by three judges, and no prevailing opinion, but finally it was announced that there would be no opinion at all.” This is not denied.</p>

<p>Appeal from a judgment and order.</p> <p>The action was to recover for personal injuries to the plaintiff, caused by the alleged negligence of the defendants.</p> <p>The plaintiff testified that himself and another person left Sweeny’s Hotel about six o’clock of the afternoon of June 3d, and hailed a Third avenue car that was going up-town; the car stopped, and we passed across the street to get on the rear platform. The other gentleman in front of me was partially upon the step, and I was as close to him as I could stand, when the car coming down-town came up even with the one we were getting on, and the horse which was running between the two tracks struck me on the left shoulder, and knocked me under his feet in on the track, and walked over me; the platform of the car coming down town struck me on the right shoulder; my head was badly cut, and my ribs were bruised from the hip up to the shoulder, and the shoulder bone was broken. I was taken out from between the horses’ feet and the platform of the car, and carried into Sweeny’s Hotel. There was a space between the tracks (the up and down-town of four or five feet actual measurement to be four feet six inches to five feet, varying at different points). The horses that struck me must have stepped almost the whole distance-between the tracks and eastward of the east line of the-down-track. I was as close up to the gentleman on the step of the other car as possible. The gentleman-who was with me was just before me, and he was-partially up on the step, and I was as close to him as I could stand, in order to let the other car pass, and I noticed there was ample room for me to stand there. I was very careful to get as close to the other car as possible. When I hailed the car, it was a little south’ of the north crossing. I saw horses attached to the car-coming down, but I paid no special attention to them. I am sure I attempted to get on the rear platform.</p> <p>A witness for the plaintiff testified, they (plaintiff and the person with him) hailed a car directly opposite the door (of Sweeny’s Hotel). The car stopped, and when the horses of the car going down came opposite to those of the up-town car, the driver pulled the reins, and threw the horses out into the space between the two tracks, and before the plaintiff could get his foot upon the platform the horses knocked him. One of the gentlemen was on the rear platform absolutely. It was somewhat crowded, and the plaintiff had hold of the iron railing getting on the platform. He was as close to the car as a man could be not to step on the car. There was nothing to obstruct the view between the plaintiff and the driver of the down car.</p> <p>On his cross-examination he testified that the car going up had got about seventy-five feet beyond the corner or upper crossing. “I had been detaining the plaintiff, and was asking him some questions, and that detained him a moment or so after the car was hailed.”</p> <p>Another witness for the plaintiff testified that by measurement, the space between the inner rails of the two tracks is from four feet six inches to five feet; it varies occasionally ; the cars are seven feet wide, and overhang the rails on each side almost one foot three inches, leaving the actual space between two passing cars of only thirty inches. There was no difficulty in the way of free passage of the cars without striking me, when I stood between the two passing cars.</p> <p>There was evidence on the part of the defendants that the plaintiff came rushing across the track to get in the up-town car, and was trying to get on the front platform.</p> <p>The plaintiff further testified : “I went straight across the street to the rear platform. I did not catch hold of the railing, and had one foot on the step. Captain Moriarty, who was in front of me, got hold of the railing. I stepped as close to him as possible, until I was knocked down by the horses.”</p> <p>Defendant made no motion to dismiss the complaint, and no motion that the jury be directed to render a verdict in its favor.</p> <p>The court charged the jury, that if the negligence -of the plaintiff in,any way contributed to the accident -or to the injury sustained by him, he could not recover.</p> <p>The jury gave the plaintiff a verdict.</p> <p>A motion was made on the judge’s minutes for a new trial, on the ground of insufficient evidence to support the verdict, which was denied, and an order to that effect entered. Judgment was entered in conformity with the verdict. Defendant appealed from the judgment and the order.</p> <p>The verdict is clearly against the weight of the "evidence. It can only be sustained on the ground that the accident was occasioned solely by the neglect of the defendants (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248). The'evidence on the part of both the plaintiff and defendants clearly showed that the accident was not occasioned solely by the negligence of the defendant’s servants.</p> <p>I. The exception taken to the judge’s refusal to charge as requested by the defendant’s counsel, is not well taken. The court may refuse to charge the jury as requested by a party, for the reason that he embraced within his charge already made, all the subjects contained in the request (Osborn v. Gantz, 38 Sup'r Ct. 148). The court in the general charge, clearly and distinctly included the propositions here made, as far as it was proper to be done. The refusal to charge, in the form requested, was correct; the subject-matter was one upon which there was conflicting testimony, and it was for the jury to determine the fact from the evidence before them. The question of negligence should be submitted to the jury, if there be conflicting evidence, or if the proofs leave the matter in doubt (4 Abb. Dig. 179). There is no error in refusal by the court to specify a fact alleged to be evidence of negligence, and to direct the jury to And a verdict on that fact for defendant. It is proper to leave it to the jury, with general charge (Baxter v. Second Ave. R. R. Co., 30 How. 222).</p> <p>II. There is sufficient evidence. There is a conflict of evidence. In cases where there is a conflict of evidence, “ the well-grounded rule that upon such evidence the verdict of a jury is conclusive, is applicable, and leads to an affirming of the order denying the motion for a new trial” (Knapp v. Roche, 37 Sup’r Ct. R. 395 ; The Fisk Pavemdnt and Flagging Co. v. Evans, Id. 482 ; Murphy v. Boker, 3 Robt. 1; 4 Abb. Dig. 141 ; Lewis v. Blake, 10 Bosw. 198 ; Cothran v. Collins, 29 How. 155 ; 6 Abb. Dig. 404, §§ 51, 52, 53).</p>

The action was against the defendant as the endorser of three promissory notes, drawn and dated at Philadelphia and payable there, and as the maker of two checks drawn on a bank in the city of New York. The complaint contained five causes of action—three on the notes, and two on the checks. The defendant, by his answer averred that no notice ■of protest or presentment of the notes was ever given to him, and he. annexed to his answer an affidavit specially alleging the same.

<p>Appeal from order affirming taxation of costs.</p> <p>This action was brought to eject the defendant from certain property in the city of New York.</p> <p>The following proceedings have been had in the action:</p> <p>First.—A trial before Mr. Justice Barbour. Verdict for defendant.</p> <p>Appeal to the general term. Judgment reversed, with costs to abide the event.</p> <p>Second.—A trial before Mr. Chief Justice Robertson. Verdict for plaintiff.</p> <p>Appeal to the general term. Judgment affirmed.</p> <p>Appeal to the court of appeals. Judgment reversed, with, costs to abide the event.</p> <p>Third.—A trial before Mr. Justice Sedgwick. Verdict for plaintiff.</p> <p>Appeal to the general term Judgment affirmed.</p> <p>Appeal to the court of appeals. Judgment affirmed.</p> <p>Fourth.—An order under 2 It. 8. 309, § 37, granting a new trial herein, and vacating the judgments previously entered, the defendant Platt having paid all the costs recovered by the plaintiff herein.</p> <p>Fifth.—A trial before Mr. Justice Freedman. Verdict for defendant.</p> <p>The defendant, after the last trial, presented his bill of costs to the clerk of this court for adjustment, including in the bill all of defendant’s costs and all of his disbursements incurred in all of the proceedings herein.</p> <p>The clerk refused to allow the defendant any costs, except those for proceedings after the order granting a new trial, and no disbursements except those incidental to the new trial.</p> <p>The costs taxed by the clerk were as follows :</p> <p>“ Costs on Fourth Trial.</p> <p>Costs after New Trial granted and</p> <p>before New Trial ............... $25 00</p> <p>Term Fees, Five Terms............ 50 00</p> <p>Trial Fee......................... 30 00</p> <p>Allowance by order............... 500 00</p> <p>$1,340 00</p> <p>“ Disbursements.</p> <p>Witness Fees, Fourth Trial........ $5 50</p> <p>Clerk entering Judgment, Fourth</p> <p>Trial........................ 1 00</p> <p>Transcript and Filing, Fourth Trial 11</p> <p>Sheriff returning Execution, Fourth</p> <p>Trial............................ 69</p> <p>Stenographer’s Minutes, Fourth Trial..'.......................... 10 80”</p> <p>From this taxation defendant appealed to the special term, when it was affirmed, and he now ap peals to the general term.</p> <p>I. The defendant having finally succeeded, is entitled to recover his entire costs in the suit from its commencement down to, and including the entry of judgment on the verdict rendered at the fourth and last trial (Carvey v. Rider, 2 Cow. 617 ; Meule v. Goddard, 5 B. & Ald. 766; David v. Harring, 1 St. 300; Burchall v. Bellamy, 5 Burr. 2693).</p> <p>II. The terms “ that the costs shall abide the event of the suit, has been construed to mean that the party who finally succeeds, is entitled to his costs upon all the previous trials, whether he failed or succeeded in them, if those costs were directed to abide the event of the suit (Carvey v. Rider, supra; Meule v. Goddard, Id.; 4 Chitty's Gen. Practice, 89; 1 Paine and Duer's Practice, 585).</p> <p>III. An “event”—from the Latin “evenire” to come out or from—is a thing which happens from or follows, a cause, and they are called “events,” because they come out of a cause (Burrill's Law Dict., "Eventus"). The event, in an action of ejectment, is the recovery by the plaintiff, or the maintenance by the defendant, of possession of the property which is the subject of the action. In this action the event has been the final success of the defendant in maintaining possession.</p> <p>• IY. The reason urged on the argument at the special term why the defendant should not recover the costs of proceedings before the order of January 28, 1875, granting a new trial herein, that such order was made on the payment by defendant of plaintiffs costs, as a condition precedent to such new trial,is not sound, because the defendant does not ask to be paid the plaintiffs costs, but asks that his costs which are distinct from plaintiffs, be allotted him. The payment of costs prior to a second trial in ejectment bears no analogy to the payment of costs as a condition of granting a motion, for the costs in the latter case are imposed as a penalty, as it were, for some erroneous proceeding, or as a condition of receiving a favor, while in the former it is imposed to invoke from the unsuccessful party, some evidence of good faith in the continuance of the litigation, and on the payment of them the new trial is a matter of right. At common law, the action of ejectment was a mere possessory action, and concluded no one, either as to the title or possession, except as to the time between the day of the demise and the recovery. Even the party against whom the judgment was rendered was at liberty , to bring a new action, and again litigate as to the possession as often as he pleased (Tyler on Ejectment. 632 ; Ainslie v. The Mayor, 1 Barb. 168). To prevent this constant litigation, and to provide for the settlement of titles to real estate, after a reasonable number of opportunities to the interested parties to prove title, the rule of the common law was changed by the revised Statutes, and evidence of good faith was required of the unsuccessful party before being allowed again to litigate his title. There is no provision of the statute from which any inference can be drawn that the costs for proceedings before a new trial can not be collected, and in the absence of such provision the court should not make a rule which, while the last trial may result in a judgment in favor of the party paying the costs, prevents the recovery by the party of the compensation for his trouble provided by the Code in the way of costs, and even the disbursements necessarily made by him in the preparation of his cause for trial. The court should rather see that compíete restitution was made to the finally successful party.</p> <p>I. The defendant paid the costs of the previous proceedings as a condition to obtaining the new trial, and, as those have all been awarded and paid to plaintiff, the defendant can not now recover them (Slocum v. Lansing, 3 Denio, 259 ; Linacre v. Lush, 3 Wend. 305).</p> <p>II. The effect of the order granting the new trial under the statute, is to strike out all the proceedings in the action to and including the judgment, leaving the issue to be tried again. So that whoever succeeds on the trial recovers costs only for the proceedings from the time the new trial is ordered. Were this not so, the case might result in the absurdity of giving to the plaintiff a second time the costs of services for which he had once been paid. If the plaintiff had had a verdict on the new trial, would the defendant concede that he should recover all the costs again from the beginning; if not, why should defendant on his success ?</p> <p>III. Formerly a judgment in ejectment did not determine the right of property, and either party when unsucessful might bring in a new ejectment to recover the possession, and ejectments might thus be indefinitely repeated, until a Court of Equity afforded relief by restraining further litigation. The Revised Statutes in making the judgment conclusive as to title saved the necessity of applying to a court of equity, and provided a mode by which the unsuccessful party, if dissatisfied, may still be indulged with a further trial (2 Paine and Duer, Pr. 517 ; 3 R. S. (2d. Ed.) 709, Revisor’s notes; Bates v. Stearns, 23 Wend. 483, Cower, J., 2 R. S. [2d. Ed.] § 42; 3 R. S. [5th Ed.] § 35). This history of the provisions as to new trial shows that the recovery of costs must be confined to the proceedings subsequent to the order granting the new trial.</p>

The complaint was for the conversion by the defendant of certain personal property, part of which were several diamond rings.

<p>i. evidence.</p> <p>1. Witness as to value, examination op.</p> <p>(а) Must preliminarily be shown (if so required in proper time by the party against whom the witness is called) to be acquainted with the value of like property, services, &c., with that as to which they are to testify.</p> <p>(5) Striking out testimony. If such preliminary proof has not been so required, the testimony of the witness as to value can not be stricken out on the ground that it has not been given.</p> <p>1. In such case the burden rests on the party against whom the witness is called to show his disqualification.</p> <p>(б) In answer to a question, “Do you know the value of the services of an agent whose duties a/re confidential and embrace such duties as you know that plaintiff performed during the period you have testified to ? ” the witness said, “ I can state what I know as to persons doing the same; leave the confidential out, and I should say yes.” He then, under objection, testified to the value.</p> <p> Held, no error. </p> <p>a. His answer is as to the value of services irrespective of their confidential character.</p> <p>b. The fact that they were confidential did not lessen their value.</p> <p>(d) Witness preliminarily stating that he did not profess to be an expert.</p> <p>1. This does not disqualify him as a witness to value if sufficient facts appeared to show that he was competent,</p> <p>n. PRACTICE.</p> <p>1. Conduct op tbial.</p> <p> Beferee reserving Ms decision on objections to evidence, and receiving the evidence subject to the reservation, when not cause for reversal. </p> <p>1. It is not, when the evidence thus received is either relevant or not calculated to injure the objecting party.</p>

The action was to recover the possession of certain house furniture. The complaint set out the instrument under which the plaintiff claimed possession. The instrument was, in its form, a bill of sale of the property, ending : “This sale is made on this express condition, that I shall have the right to redeem the above described property at any time within one year,” upon payment of a specified sum of money, and it was executed by the then owner of the property.

<p>I. PLEADING.</p> <p>1. Evidence undeb.</p> <p> (a) Proving invalidity qf an assignment of a claim. </p> <p>1. A simple denial of an averment in the complaint that the claim or demand has been duly assigned to the plaintiff, will not let in evidence to establish that the assignment is invalid.</p> <p>tt FORECLOSURE.</p> <p>1. Intebest oe subsequent menob.</p> <p> (a) When rejection of evidence to show the nature of his interest is not error. </p> <p>1. When the existence of his lien and his right to dispute on the trial the amount claimed to be due on the prior lien are not disputed, and the trial of the issues joined resulted in determining the amount due thereon.</p> <p>IH. RECEIVER.</p> <p>1. Right oe, in deeense oe an action.</p> <p>(a) It is doubtful whether when he and the person for whose benefit he was appointed, and whose interests alone he defends, are both parties to the action, he can insist on a defense not insisted on by the party for whose benefit he was appointed.</p> <p>IV. EVIDENCE.</p> <p>1. Pabticulab issue.</p> <p>(a) Party in interest. Issue as to whether plaintiff, an attorney, or a third party against whom defendant has a defense, is the real party in interest.</p> <p>1. The action being for a foreclosure of a mortgage, evidence that the plaintiff, while acting as attorney for one W. G., to whom the mortgagor had conveyed the mortgaged property, in an action brought against him by the executors of I. G. (defendants in the foreclosure suit),, affecting the title to the mortgaged property, and which suit resulted in a judgment directing W. G. to convey to W. L. (also a defendant in the foreclosure action), as receiver for the executors of I. G., the mortgaged premises, took an assignment of the mortgage; and that while W. G. was the owner of the equity, one W., his son-in-law, had made payments on the B. & M. on his behalf, then ceased and put the mortgagee off, and finally told the mortgagee that the plaintiff had the money, appointing with him a time tó go and see the plaintiff, and that W. and the mortgagee went to the plaintiff, who paid the consideration, and took the assignment, is not sufficient to establish that the assignment was taken for the benefit of W. G., or to put the plaintiff on explanation.</p> <p>V. APPEAL.</p> <p>1. Costs on.</p> <p>(a) Error below, what will not deprive respondent of costs.</p> <p>1. An error of calculation, such as giving interest on interest to which the attention of the court below was not called, will not.</p>

The action is to restrain the defendants, The New York and Staten Island Ferry Company, from conducting and running a ferry from New York to Staten Island ; and from using for such purpose any property of the plaintiffs leased to the defendants, The North Shore Staten Island Ferry Company, and to restrain the defendants, the said North Shore Staten Island Ferry Company, from further permitting or consenting to such use of said leased property.

Upon the call of the action for trial at the jury term, the defendant moved the postponement of the trial. He read several affidavits showing the absence of a material witness. Affidavits in opposition were read by the plaintiffs, and their counsel also made certain oral statements, which, as the case states, “were uncontradicted by the defendant.” The court denied the motion to postpone.

The action was to recover upon a contract made between one Dutch and the defendants, for work and materials furnished to the defendants, the price being payable in eight installments.

The action was to reach the proceeds of a mortgage on real property. The complaint alleged the recovery of a judgment against one Amanda M. Senior, the mother of the defendant; the issuing and return of an execution unsatisfied ; and the appointment of the plaintiff as receiver of the judgment debtor.

The action was against the defendant as surety upon an agreement between the plaintiffs and one Bannon, wherein the plaintiffs agreed to employ said Ban-non as salesman, and the defendant agreed that he would pay to the plaintiffs all losses by them sustained in consequence of the non-payment to them of all moneys collected by said Bannon ; and also one half of any and all losses sustained by the plaintiffs in consequence of the bad debts arising from any and all sales made…

The action was to recover damages for the nondelivery of a quantity of plaster stone. The complaint alleged a contract for the sale by the defendant, and purchase by the plaintiff, of three thousand tons of plaster stone, part of which was delivered and paid for, and a part was refused delivery. There was a general denial by defendant. The contract was by parol, and was proved by the following evidence, The plaintiff testified as follows : I know the defendant.

The action was to recover damages for a false representation. The defendant contracted to sell to the plaintiff a certain lease of premises in this city, and as it was alleged in the complaint, with intent to deceive and defraud the plaintiff, fraudulently and falsely representing to her: 1 st. That the said lease was a valuable one. 2nd. That it was worth eight thousand dollars bonus. 3rd.

Motion under chapter 322 of the Laws of 1874, for leave to appeal to the court of appeals. The grounds of the motion appear in the opinion.

Appeal by the defendants from a judgment in plaintiff’ s favor entered upon the report of a referee. The plaintiff, on August 28, 1869, insured his life in the Craftsman’s Life Assurance Company of New York, for one thousand dollars, taking a ten years’ endowment policy, and paid thereon twelve quarterly premiums of twenty-seven dollars and sixty cents each, including that of May 25, 1872, amounting in all to three hundred and thirty-one dollars and twenty cents.

Pendleton in contempt. The suit was commenced May 21, 1875, to restrain the New York and Staten Island Ferry Company from running a ferry from New York city to the eastern shore of Staten Island… Held: that he was bound not to carry it on as agent for another person, when himself enjoined from carrying on the business (Ewing v. Johnson, 34 How. 202).

Appeal by Anna S. Reeves, administratrix of Edgar H. Reeves, the defendant deceased, from an order made September 30, 1875, denying her motion to have the action continued against herself as such administratrix. The plaintiff sues as a sovereign state.

Appeal by the plaintiff from a judgment dismissing the complaint as to the defendant, Cornelius Meserole, upon the merits of the action, and further dismissing the complaint as to the remaining defendants, Washington J. Moore and Jackson M. Yauger.

Motion by the defendants for a new trial, on a case and exceptions, under section 268 Code, subdivision 1. Held: by him pursuant to the assignment, and that a receiver be appointed to take charge of such property and effects, The plaintiff alleges that the defendant has received over three thousand dollars, and that the assigned property is of the value of nine thousand dollars or over.

In this action there was a verdict rendered for the plaintiff. The court directed the exceptions to be heard: in the first instance at the general term. The suit was upon a claim for the delivery of per^ sonal property. The property in question, which consisted of horses and coaches belonging to a,livery stable in Eleventh . street, was levied upon by the sheriff, defendant, about December 26, 1874, under an execution against Sterry Fry.

The plaintiff sues as administrator of his son, an infant, aged four years and nine months at the time of his death, to recover, under the statutes of 1847, chap. 450, and 1849, chap. 256, for the pecuniary injuries suffered by the next of kin of the deceased, by reason of his death. The plaintiff left London, England, in July, 1870, and since the 27th of that month has resided in the city of ¡New York.

Appeal by the defendants from a judgment in the plaintiff’s favor, and also from an order denying a motion for a new trial. The suit is' for the conversion of plaintiff’s furniture, household goods, and wearing apparel. The plaintiff, previous to January 3, 1874, had occupied No. 22 W. Ninth street as the tenant of the defendant Sarah Ludlow, her sister.

Exceptions heard at general term. The action is to recover damages for personal injuries alleged to have been sustained by reason of the negligence of defendant’s servant. The facts as to the injury are stated in the opinion. At the trial the court dismissed the complaint, to which the plaintiff’s counsel excepted. The court directed the exception to be heard in the first instance at the general term, and suspended judgment in the meantime.

The action was brought to recover damages claimed to have been sustained by the plaintiff, upon being put off one of the defendant’s cars, for non-payment of fare. The answer of the defendant denies that there was any such occurrence. The defendant demands a fourth trial of this action.

Appeal by the defendant Mary A. Cantrell, from an order made October 21, 1875, denying her motion to set aside the verdict of the .'jury. The action was brought to foreclose a mortgage to secure the sum of twelve thousand five hundred dollars, by the defendant to the plaintiff.

Appeal by the defendant from a judgment, and from an order denying a motion for a new trial upon the ground of newly-discovered evidence. The action is brought to recover the value of services alleged to have been performed for defendant in obtaining a compromise of his indebtedness. The defendant denies the employment, extent, and value of the services, and their performance. A verdict was rendered against the defendant for sixteen thousand two hundred dollars.

Brown. The facts appear in the opinion. To entitle a defendant to costs under section 306, on a dismissal of the complaint, it is manifest there must be separate defenses, separate answers, and separate attorneys, and the court must award such costs as a part of the relief* (Castellano v. Beauville, 2 Sandf. 670; Tracy v. Stone, 5 How. Pr. 104 ; Brockway v. Jewett, 16 Barb. 590 ; Atkins v. Lefevre, 5 Abb. N. S. 221 ; Crofts v. Rockfeller, 6 How.

The action is for the conversion of a draft, dated July 1, 1873, drawn by McWilliams & Co., on and accepted by the Cornwall Iron Works, for two thous- and six hundred and seventy-five dollars and twenty-one cents, at ninety days after date, to the order o«T the drawers, and by them endorsed.

The plaintiffs’ testator had been a stockholder in the Vermont Copper Mining Company, defendant. That company had sold, or claimed to have sold, the stock of the testator, for non-payment of assessment thereon. The defendant Ely had bought, or claimed to have bought, the stock, at the sale. The defendant Ely was also president, and the defendant Bicknell, treasurer, of the company.

The action was upon a policy of insurance, which in form was a marine policy. The written part insured the plaintiff “at and from October 5, 1867, at noon, to November 5,1867, at noon. Sum insured six thousand two hundred and fifty dollars, port risk, in port of New York, upon the body, tackle, apparel, and other furniture, of the good ship called ‘ The Confidence,’ ” Then followed the printed part, such as is generally used in a voyage policy, a valuation being inserted.

Appeal by plaintiff from order granting a new trial alter verdict for plaintiff. The action was by the plaintiff against the defendant, as co-surety for contribution. It appeared upon the trial that an action had been brought in this state by one Murray against one Harris and other defendants. In that action an attachment had been issued against the property of the defendants.

<p>PROCEEDINGS SUPPLEMENTARY TO EXECUTION.</p> <p>Examination on Judgment Debtor.</p> <p>A judgment debtor can not be subject to several successive examinations unless the creditor can show specially that facts arising after one examination call for further examination.</p> <p>The same rule applies to an examination upon a judgment recovered upon a former judgment, upon which these proceedings had been taken, and the defendant examined, &c.</p> <p>In order to justify an examination under such a judgment, the judgment creditor must show specially that facts have arisen since the former examination that call for and justify another examination.</p>

<p>Appeal from judgment entered upon verdict, and from order denying motion for new trial.</p>

<p>In an action to recover the possession of personal property, where the-answer alleges that as to a portion of the property the defendants renounce all claim or interest thereto, and offers plaintiff a judgment as to that portion, with costs, &c., and upon an issue as to the rest, which was tried before a referee, the referee erred in finding that the defendants were entitled to the return of all the property mentioned in the complaint without excejjtion, or its value, fixed at five hundred and fifty-four dollars. The referee should not have included the value of the property in regard to which, by the answer, the defendant had renounced all right and interest.</p>

Appeal by defendant from a part of an interlocutory judgment and from an order denying defendant’s motion to set aside or modify such interlocutory judgment.

The complaint in this action alleges that the plaintiff performed certain work, labor, and services for and furnished certain materials to the defendant in the erection and construction of a certain dwelling-house for defendant in the city of New York.

After issue joined, and before trial, the defendant died. A motion was made at special term to continue the action against his representative, which was granted, and the action was, by order, continued against Lucinda B. Starkweather, administratrix of the deceased. The administratrix appeals from the order.

The complaint charged that the Pacific Beater Press Company was a corporation under the laws of New Y ork, organized under the general act for the formation of corporations for manufacturing, &c„, purposes.

Appeal by the defendants from a judgment entered in favor of plaintiff for nine thousand three hundred and thirty-nine dollars and twenty-two cents, upon the verdict of a jury.

This and two other actions were brought to recover upon policies of fire insurance issued by the several companies on the shafting, belting, tools, benches, fixtures, and machinery used in a rubber factory in Water Street, Brooklyn. The party insured by the policy is Fitzhugh Smith, son of the plaintiff, but by a clause inserted in the policies subsequently to their issue, the loss or damage was .made payable to the plaintiff.

This action was brought to recover the sum of five hundred and fifty-one dollars and fifty cents, the amount paid to the defendant, and an attorney for professional services m searching the title to premises, under a contract for the purchase of a house and lot in Forty-eighth Street, in the city of New York, by the plaintiff of the defendant, upon the ground that defendant had no title to a portion of the premises agreed to be conveyed.

The action was brought by the plaintiffs who compose the firm, VVe J. Magnin, Gruedin & Go., against the Adams Express Company, to recover the value of a package entrusted to its care, for transportation to Memphis, Tennessee, and alleged not to have been delivered there to the consignees thereof.

This is an appeal from an order discontinuing the action as to one of the defendants. The action is brought to compel the defendants to account for a cargo of merchandise.

This action was brought to recover of the defendants the sum of eighty-one thousand dollars and interest, alleged to be due the plaintiff as the rent of the third and fourth floors of certain buildings in the city of New York, leased by him to the Board of Supervisors of the county of New York, to be used and occupied as armories and drill-rooms, for a term of ten years, from May 1, 1871, at a rental of thirty-six thousand dollars per annum.