Volume 8 — New York Supreme Court Reports

This action was brought by the plaintiff to recover the sum of $52,748.08, with interest from the 10th of November, 1871, for work executed, and supplies furnished by him, under and pursuant to two contracts, entered into on the 1st day of July, 1871, by and between him and the commissioner of public works, in behalf of the defendant, in laying water-pipes to extend the distribution of Croton water through the city.

<p>Appeal from an order made at Special Term, denying a motion made by defendant to set aside the judgment entered in the action, but allowing him, on certain conditions, to come in and defend.</p>

<p> Note—after dissolution of parrlrwráhvp—considen'ation. </p> <p>After the dissolution of a partnership, a note made in the firm name, with the assent of the partners, for a debt due by the firm, is a valid obligation.</p> <p>The debt due by the firm, particularly when an extension of the time of its payment is secured by giving the note, is a sufficient consideration therefor.</p>

<p>Appeal from a judgment in favor of plaintiff and an order denying a motion for a new trial on the judge’s minutes.</p> <p>The plaintiff rented premises in the city of New York to the defendants, from May 1, 1866, to May 1,1869, at a rent of $2,500 a year. In February, 1869, the plaintiff’s agent wrote a note to Mr. Simonson, the secretary of the board of trustees of common schools for the Twenty-second ward, stating that the rent for the ' premises would be $6,000 per year. Mr. S. laid the letter before the board of trustees, which passed a resolution not to hire the premises, but submitted the matter to the board of education to do as it thought fit. The board of education, June 9,1869, offered to hire the premises for $3,000 per year, which proposition was declined. On July 2, 1869, the board of education notified the plaintiff that they had vacated the premises. This action was brought to recover the rent at the rate of $6,000 a year, alleged to be due August 1, 1869. Considerable evidence, consisting of conversation between the plaintiff and his agent, and the individual trustees and commissioners, was admitted under objection by the defendant. The jury rendered a verdict for plaintiff for $1,802.74.</p>

The defendant in this action is a corporation, formed, on or about the 24th of October, 1865, under the statute of this State providing for the formation of manufacturing corporations. Its object was to manufacture, sell and use submarine boats, apparatus or machines, and improve, sell and otherwise dispose of the property of the company.

<p>Appeal from a judgment in favor of plaintiffs and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</p>

On the 17th of January, 1874, on affidavits presented to Mr. Justice Lawrence, an order was granted at Special Term, requiring the plaintiffs to show cause why a notice of appearance, theretofore served in the action, of Brown, Hall & Vanderpoel, as attorneys for the defendant, should not be countermanded and withdrawn.

<p> Executor—Accounts. </p> <p>The executor presented a claim against the estate, for money paid and advanced for divers family expenses, such as rent and other necessaries, and for expenses in taking the testator to the asylum, and for his clothing, nursing and medical attendance, amounting to $871. The surrogate refused to allow the claim, as all of the disbursements were made during the lifetime of the testator; held, that the claim should have been allowed.</p>

This action was commenced in 1869, and,, the defendants being non-residents, an attachment was issued against their property, to procure the dissolution of which, an undertaking, with sureties, was given. The case, being at issue, was referred to Hon. W. H. Leonard, to hear and determine.

The plaintiff, on the 6th of August, 1869, sold to the defendant, Lockwood, a bond and mortgage for $20,000, and at the same time assigned to him, as collateral security for the payment of the said mortgage, a bond and mortgage for $2,000, known in this case as the Kreitz mortgage.

<p> Memoranda—evidence—p’esumption. </p> <p>Plaintiff testified from an account-book, as to money advanced to, and paid for, the use of defendant. The defendant offered in evidence the remaining portion of the book, from which plaintiff had testified. On objection by plaintiff, the referee ruled to allow the book in evidence, so far as related to any transactions between plaintiff and defendant. The defendant excepted and moved to strike out the testimony of the items, mentioned in the book referred to, unless the book should be put in evidence by the plaintiff. The motion was denied, on the ground that the book was in evidence as to the entries of transactions between plaintiff and defendant. The defendant again excepted. Held, that when defendant offered one portion in evidence, it was error to admit another portion, which he did not offer.</p> <p>Where plaintiff testified from an account-book as to moneys advanced to defendant, and such portions of the account-book as contained entries showing such advances, were in evidence, held,, that the referee erred in refusing to allow defendant to test the accuracy of the entries proved, by showing, by other entries in the book, that they were not made at the dates claimed, and for this purpose, showing that they were not chronological in order with other entries, or had been interpolated amongst other entries.</p> <p>On the trial of an issue involving the question whether money loaned had been repaid, held, that it was error to exclude evidence, showing that subsequent to the loans in question, other money had been loaned and repaid between the same parties; as such evidence might raise a presumption that the older claims had also been paid.</p>

The plaintiff was a boat owner, and received, as a common-carrier, a quantity of grain, shipped from Fort Plain, and consigned to the Security Insurance Company of New .York. Part of the grain was delivered-to the consignee, and the balance was stored by the plaintiff, in the warehouse of the defendant, the plaintiff, at the same time, taking a receipt therefor. Part of the plaintiff’s freight and charges had not been paid.

<p>Appeal from an order affirming the report of a referee.</p> <p>The facts appear in. the opinion.</p>

<p> Will—Besid.ua/ry legatees—no interest m the estate until prior legatees a/re paid. </p> <p>The defendants’ testator devised all his estate, both real and personal, to trustees, to apply certain portions of the rents, issues and profits thereof to the use of persons, named in his will, during the life of his wife; and directed that, upon her death, the residue of the estate should, after the payment of certain specific legacies, be divided between the plaintiffs’ assignors. A portion of the rents being undisposed of by the will, the plaintiffs applied to have the accumulation paid over to them. Held, that they were not entitled to receive it; that it did not appear that upon the division of the estate and the payment of the specific legacies, there would be any residue to which the plaintiffs would be entitled.</p>

The referee found that the parties to this action, entered into a written agreement for the exchange of certain property, whereby the defendant agreed, among other things, to deliver to the plaintiff seven horses. Prior to'their delivery, one of them died. The defendant thereupon entered into another agreement with the plaintiff, to deliver to him another horse, of equal value, in place of the one that died, or to pay him $300.

The action was brought '.to recover for the seizure of the property of the plaintiff, by virtue of certain attachments which were subsequently vacated and set aside. Other facts appear in the .opinion.