Volume 9 — Bosworth's New York Superior Court Reports

P. Hash, Esq., as Referee. Rufus K. Delafield and George Baxter sued Aaron A. DeGrauw, on a contract, by which Delafield and Baxter had agreed “to deliver to Aaron A. DeGrauw forty-two hundred barrels of hydraulic cement, to be equal in quality to the best Rosendale or Newark manufacture, to be packed in air-tight, oak barrels, well lined with paper, each barrel to contain not less than three hundred pounds of cement, and to be subject to the inspection of the United States…

This was an appeal- from a judgment entered on a verdict. The facts material to the questions determined appear in the opinion of the Court. The trial was had before Mr. Justice Slqssoh and a Jury, commencing on the 13th of December, 1858, and concluding on the 11th of January, 1859. The plaintiff recovered a verdict for $250.

<p>1. A tenant being put out of possession, may defend an action "for the rent, by proof that he was ousted by one having a title paramount to that of the landlord, although the ouster was not by virtue of a judgment, decree or any legal process; such tenant taking the burden of proof that he acted in good faith, and that such title was in fact paramount.</p> <p>2. It is not an unqualified rule that a tenant, put in possession by his lessor, may not deny the title of the latter. The rule is, that a tenant may not accept possession from a lessor, hold and enjoy under the demise, and then refuse to pay the rent, or refuse to yield the possession to his lessor at the termination of his lease, and justify such refusal in either case, by alleging or proving that the lessor, under whom he has had such enjoyment, had in fact no title. But eviction under title paramount is a defense, whether such title, was in the evictor before the lease, or was acquired by him after the lease was executed.</p> <p>3. If such eviction or ouster is from a part of the demised premises, it entitles the tenant to an apportionment of the rent, and an abatement according to the relative value of the part from which he is evicted.</p> <p>4. Leases for a term not exceeding three years are not within the statute, (1 R. S., 738, § 140,) which declares that no covenant shall be implied in any conveyance of real estate.</p> <p>5. The implied covenant for quiet enjoyment which arises upon such a lease is broken' by an expulsion, by one having paramount title, without any judgment or decree.</p> <p>G. The defendant was tenant of a lot of land, and buildings thereon, under a lease from the plaintiff, for the term of three years. The owner of the adjoining lot was, in fact, the owner of a strip of land within and along the side of the demised premises, and on which, in part, the wall of the buildings rested; and he notified the defendant of the encroachment, and that he was about to excavate under the wall, and required him to remove the wall. The defendant gave written notice of this claim to the plaintiff, and required him to defend his rights as he might be advised, and notified him .that he should hold him responsible for any damages sustained; but the plaintiff taking no measures to protect the wall or prevent its removal, and the excavation being commenced, the defendant, in view of the danger caused by the undermining of the wall, took it down and rebuilt it on the line of the plaintiff’s lot. In the plaintiff’s action to recover the rent;</p> <p>Held, 1st. That these facts constituted such an eviction by paramount title, from a part of the demised premises, as to suspend a portion of the rent, and were available as a defense thereto. 2d. That they were also a breach of the implied covenant for quiet enjoyment, and were available as grounds for a counterclaim to the rent.</p>

This was an appeal by defendants from a judgment in favor of the plaintiff, entered upon the report of Charles P. Kirkland, Esq., Eeferee, to whom the cause was referred for trial. • The plaintiff sought to recover, in this action, the excess of his expenditure in building a public sewer in the Third Avenue, one of the public streets of the Oity of Hew York, beyond the sum received by hito therefor, from the corporation of that city.

entered upon the decision of Chief Justice Bosworth, .after a trial before him, without a Jury, in October, 1859. This action was brought by Charles Pratt and William A. McKenzie, to recover $18,571, for a loss upon a contract of insurance, alleged to have been made by the ■defendants, through their agents, J. Day & Go., at Apalachicola, Florida.

This case came before the Court upon exceptions taken on the trial of the cause, before Mr. Justice Pdereepomt and a Jury, on the 13th day of January, 1860, and which were directed to be heard in the first instance at the General Term, judgment being in the meantime suspended.

This was an appeal by the plaintiff from a judgment entered in favor of the defendants, upon an order dismissing the complaint, made on the trial before Mr. Justice Woodruff and a Jury, on the 20th day of May, 1861. The defendants were Ira W. Gregory, James E. Kelley, William O. Watson and George H. Wooster.

This appeal,¡although nominally from the judgment, was, in fact, from an order striking out the answer of the defendants as sham.

The exceptions taken at the trial of this cause, and the defendant’s motion for a new trial, were directed to be heard, in the first instance, at General Term.

This was an appeal from a judgment in favor of the plaintiff, entered on the 11th of December, 1861, upon the report of Henry Hicoll, Esq., Referee, to whom the cause was referred for trial. The action was brought by the plaintiff as Receiver of the Hew York Gas Regulator Company, a corporation of this State, he having been appointed, upon its dissolution, by the Supreme Court.

This .was an action to recover for work done and- materials furnished by the plaintiffs, at the defendant’s request, consisting principally of two low pressure steam engines,, constructed and placed on board of two- vessels, known as the Ohio and Georgia, at a certain contract price, and also for certain additional work done and materials furnished on board of such vessels, in putting up-some coal bunkers-with their appurtenances.

The plaintiffs, Joseph Burnett and William Otis Edmands, who were druggists and partners in business, in the year 1857, in, the Oity of Boston, commenced the manufacture and sale of au article of hair oil, compounded of various ingredients, of which the essential element was coeoanut oil.

This action was brought to recover for services which the plaintiff had rendered to the defendant, the executor, &e., of James Pollock as bookkeeper and accountant in the business of the testator’s estate. The complaint alleged that the defendant, upon employing the plaintiff, agreed to pay Mm at the rate -of one thousand dollars per ’ annum, so long as the employment should continue.

<p>1. An agreement between the guardian of an infant and the person becoming X surety in his official bond, that the latter shall hol'd the property of which</p> <p>the guardian is custodian, for Ms own indemnity is void, because subversive of the objects of the appointment and security, and contrary to public policy. The guardian cannot pledge the property of Ms ward as security to his own surety.</p> <p>2. Hence it is no defense, in an action by the guardian, against one who has collected moneys of the estate and refuses to pay them over, to show that the defendant became the guardian’s surety upon such an agreement, and that the guardian is insolvent, and to offer to pay the money into Court.</p>

Appeal by the plaintiff from a judgment entered after a second trial, before Mr. Justice Hoffman, at a Special Term, on the 9th of March, 1861. This action was brought against James H. Sturges, Andrew Thorp and Thomas S. Thorp, who were partners in a joint enterprise. The details of the facts briefly stated in the head note, fully appear in the report of a former decision, in 6 Bosw., 520, and in the opinion of the Court stated below.

<p>1. Where a person employs different parties by distinct contracts, to do, respectively, the carpenter work and the mason work of a building, neither contractor being a party to the other’s contract, and the contract of one not referring to that of the other, and the work being such that the performance of the carpenter work is necessary to enable the mason to perform his work, if; by a delay on the part of the former the latter is prevented from making strict performance within the contract time, he does not thereby become liable to the employer as for a breach of his contract, nor forfeit his right to recover for what he has done.</p> <p>2. In such a case, where the masons brought their action to recover for the work, and the defense was that they had not completed it by the first of February, which was the time fixed by the contract:</p> <p>■Held, that there was no error in charging the Jury that if there was a delay or interruption of the work of erecting the building, resulting from, the omission of the carpenters to do what was essential to enable the plaintiffs to proceed with their work, and if such delay was such as to. throw the completion of the work over the first of February, then-the plaintiffs would be entitled to recover, being prevented from, completing their contract in time, by the act of the defendant or his carpenters. Held, further, that upon the evidence in this case the Jury were warranted, in finding that the plaintiffs were prevented by the- carpenters from completing the work in time. (Robertson, J. dissented.).</p> <p>3. After a written contract for the construction of a building had'been made, it was ascertained by the parties that certain work, would be necessary, which, at the time of making the contract, was not anticipated, and the question which arose between them, as towho was to bear the expense of it, was settled by the employer agreeing to pay the contractors a specified - sum for doing it, and relying on this promise they did it. Held, that he was not afterwards at liberty to insist that the written contract required! them to do it at their own expense.</p> <p>4. Under a provision m a contract to do the mason work of a building, that payment is to be made “ when all the works are completely finished, and certified by the architect to that effect,” a certificate that the contractors “ have completed the mason work to your building " is sufficient.</p>

This action was brought by John O. Woodruff and Bobert M. Henning, against the New York and New Haven Bailroad Company, Luther 0.

This is an appeal by the defendants, Daniel D. Page and Henry D. Bacon, from a judgment entered upon the report of John O. Sargeant, Esq., a Referee, in favor of the plaintiff, against the defendants, on the 16th of May, 1861, for $15,627.98.

This was an appeal from an order denying a new trial, and from the judgment entered thereupon, in favor of the defendant, for costs. The action was brought to recover for an injury sustained by the plaintiff, by the alleged careless, negligent and unskillful actg of the defendant and his servants in taking down an iron railing over the sidewalk, at the corner of Chatham and Pearl streets, in the City of Yew York.

W. Eobinson, Esq., Eeferee. The action was by Jonas Bartlett and Addison B. Gates, against the defendant as indorser of a promissory note. The note, which was given in evidence, was indorsed “ Oharles Eobinson, 214 E. 18th St.”' It was dated at Hew York and was payable at the office of Collins & Brown, 96 Broadway. The defendant served with his answer, an affidavit that he had not received any notice of the non-payment and protest of the note.

<p>1. In a copartnership, the partners may stipulate simply as to the profits, where one is to furnish all' the materials, while both may bestow labor; and in such case, the only specific interest of all is in the profits, and, as to the property, the partnership is only in the use or employment of it as an instrument of profit.</p> <p>2. Where C. and B. formed a partnership in the business of making, selling and letting chronometers, 0. contributing all the capital, and B. giving his labor only, and receiving his salary and a share of the profits, and 0. agreed to put into the stock of such partnership certain chronometers which were his property, upon a stipulation “ that they should be taken at a fair valuation, as a stock in trade, so that upon a sale of them at the usual market price, the profit usual in that branch of business might be made on them," but this agreement was never reduced to writing, as was intended, nor was a valuation ever fixed upon; and, after dissolution of the firm, both partners remained in the store they had occupied as partners, and 0. let the chronometers in his own name, and kept his own accounts of them, and there was some evidence that it was understood between the parties that 0. was to take the stock and pay the debts:</p> <p>• Held that, after such dissolution, the chronometers were the property of 0., and that his lessee of one of them could recover possession of it from B., who had taken it away from him.</p> <p>3. Upon such an agreement, the chronometers did not become the property of the firm, but continued always the property of 0., the firm having a permission to use them.</p> <p>4. Held further, that, if this were not so, yet the evidence in this case was sufficient to show that, upon the dissolution of the firm, B. had relinquished any interest in them and retransferred them to them to 0.</p>

This action was brought upon an administrator’s bond against Such, the administrator, and William F. Cary and Charles A. Heckscber, his sureties.

The action was brought for the conversion, by the defendant, of a bond made by Charles. H. Kitchel to Ten Eyck and Cochran, (the assignors of the plaintiff) conditioned to pay, on demand, the sum of four thousand dollars; and also of a mortgage of even date with the bond, upon a house and lot in Brooklyn, which bond and mortgage were alleged to be of the value of four thousand dollars.

Appeal by the defendants from a judgment. Held: as matters of law, that the plaintiffs, as bankers, have a lien on the bill in question, for the balance due them from Josiah Lee & Co.; and that they have acquired a valid title to the said bill of exchange as bona fide holders thereof for value; and gave judgment for the plaintiffs for the amount of the bill, with interest, and…

This was an appeal by the defendant from a judgment in favor of the plaintiffs for $1,258.54. The action was to recover $759.26 for goods sold and delivered by the plaintiffs to the defendant, between the first of September and first of December, 1856.

This action was brought by Jacob C. Cook and Andrew Nellis, to recover damages for taking and converting to the®use of the defendant twenty-five bales of hops.

This action was brought by S. A. Swinnerton and Thomas W. Dawson, on a policy of marine insurance. It was tried on the 14th of March, 1862, before Mr. Justice Monobief and a Jury.

This action was brought by Hoses Taylor, Edward Minturn and Joseph B. Collins, Trustees and Executors of the Estate of Benjamin G-.

The cause was tried before the Ohief Justice and a Jury, on the 10th of October, 1861. The facts upon which the action arose, and the defendants’ motion for a nonsuit at the trial, are fully stated in the first portion of the opinion of Barbour, J. Upon the trial, the defendants’ president testified that it was their uniform rule that baggage could not be checked, except to points to which the tickets are purchased.

The plaintiff brought this action upon a policy of fire insurance and successive renewals thereof issued by the defendants.

This was an appeal by defendants from an order denying a new trial of the cause, and from the judgment entered for plaintiffs, on the verdict in their favor, which they recovered at a trial before Mr. Justice Moncrief and a Jury, on the 2d and 4th days of December, 1861. The facts sufficiently appear in the opinion of the Court.

This was an appeal by the defendants from a judgment in favor of the plaintiff, entered upon the report of S. P. Fash, Esq., Referee, before whom the cause was tried. On the 18th of July, 1861, S. Draper, the broker of White, the plaintiff, gave the defendants, who were also stock brokers, a written order, as follows: “ Few York, 18th July, 1861. “ Messrs.

Tras action was brought upon a fire insurance policy, issued by the defendants ■ to the plaintiffs, in 1858, upon “ the iron and glass building in the City of New York, known as the Crystal Palace, on Beservoir square, the furniture and fixtures lately owned by the Association for the Exhibition of the Industry of all Nations, and the property of exhibitors remaining in the said building.” When the cause was called for trial, before Mr. Justice Woodbtjff, and a Jury, on the…

<p>This action was brought by Thomas Eielden, Daniel Campbell and William C. Pickersgill, survivors of Joshua Fielden, John Fielden and James Fielden, composing the firms of W. 0. Pickersgill & Go., of New York, and of Fielden Brothers & Co., of Liverpool, England, against Pierre Francois Lahens, Edward Ernest Lahens, and Louis Emile Lahens, survivors of Augustin Edouard Gaudard, composing the firm of J. Lahens and Company, of New York, and of Havre, France, seeking to charge them as indorsers of three promissory notes, all made by one Alexander Caselli, .of New York, to the order of J. Lahens & Co., and indorsed in their name, all dated May 25th, 1844. The amount of the three notes was nearly $49,000. The action was commenced before the enactment of the Code of Procedure; and after issue it was - referred for trial to Bobert Emmett, George 0. Goddard and William Betts, Esqs.</p> <p>It appeared on the trial that at the time of making the notes, Alexander Caselli, the maker, was a merchant in New York, engaged in purchasing and shipping cotton and other produce to Europe for sale on his account. He had obtained from Mr. Pickersgill, of the plaintiffs’ New York firm, large advances, afid, as security, had deposited with him a large amount of business paper and bonds. Caselli desiring .to obtain these, induced Mr. Pickersgill to return them to him, upon his promise to give him immediately other negotiable paper in lieu thereof, and, in pursuance of this promise, Caselli drew the notes in suit, and procured Louis Emile Lahens, (who was the only member of defendants’ firm resident in this country,) to indorse these notes in his firm name, and these notes, so indorsed,. Caselli delivered to Pickersgill in exchange for the business paper and other securities referred to. Lahens being examined as a witness at the trial, testified that Caselli applied to him to indorse the notes, saying- that he had received notices of sale of produce abroad, but not the regular accounts; that Mr. Pickersgill agreed to advance the amount appearing due if he, Caselli, would give security that Ms statement was correct, and that he wished to give these notes in exchange for other securities already given for this purpose, and “being convinced of Hr. Oaselli’s accuracy, and, out of friendship to him, he agreed to indorse said notes, with the express understanding that said notes should be delivered to Messrs. Piekersgill & Co. in behalf of Eielden,- Bros. & Co., of Liverpool, and remain in Piekersgill & Co.’s hands, for no other purpose than they should be security that the account or statement should be correct.</p> <p>Caselli, on remitting the notes to Mr. Piekersgill, stated in one of his letters : “In order to please you, I have left my desk and procured the signature of J. Lahens & Co. to the two notes herein inclosed.” In another he said: “I now beg to remit you my note, indorsed by Messrs. J. Lahens & Co., for balance of securities. I would have sent it to you yesterday, had not these gentlemen been too much engaged to attend to my own matters.”</p> <p>The Referees decided that Louis Emile Lahens alone could be held liable on the indorsement; but that the other members of the firm having been joined with him as defendants, the plaintiffs could not recover in this action against any of the defendants, and they directed a non-suit. The plaintiffs’ counsel then called Louis Emile Lahens as a witness to produce the articles of partnership between the defendants; and being required to state what he expected or intended to prove by the witness, the counsel stated : “We intend to prove what was the authority conferred on Louis Emile Lahens by his copartners, as a member of the firm of J. Lahens & Co., we ourselves not knowing what that authority was.”</p> <p>The Referees deemed the statement indefinite and insufficient, and excluded the evidence.</p> <p>In the course of the trial, the defendants’ counsel offered in evidence a deposition of Mr. Caselli, taken de bene esse, in ther year 1845, to the admission of which the plaintiffs’ ■counsel excepted on the ground that, by reason of his interest in the suit, he was incompetent as a witness when the deposition was taken.</p>

This was an action for damages for failing to take proper steps to charge the parties to a note left with the defendants for collection. The note was dated the 17th of June, 1860, and was for $1,922.34, drawn by Q-. W. Hichols, payable ten months after its date, to the order of Saltus & Co., at the office of Payne & Harrison of Hew Orleans, with current rate of exchange on Hew York at maturity. It was indorsed by Saltus & Co., and also by Mrs. Anna Saltus.

This was an action brought by Alfred Field, Robert Ibbotson and Benjamin F. Errington to recover money expended by them for the defendant’s benefit, and a commission for the purchase of certain goods for him, by them, as factors or agents.

This was an action brought by James Patrick and Alexander McDougal, to recover from the defendants, Benjamin F. Metcalf and Samuel Duncan, a certain sum of money received by the defendants from officers of the government of the United States, for the transportation of certain goods from Hew York to Mare’s Island. The complaint alleged that the plaintiffs were partners composing the firm of James Patrick & Co., and the defendants composed the firm of Metcalf & Duncan.

This action was brought by the plaintiff, who was out of possession of certain lands she cl aimed,, against William Kelly and Gabriel Winter, defendants, the latter of whom was in possession thereof, to obtain a judgment, that the title to it is vested in the defendant, Winter, and he is entitled to the possession thereof,, and that as between him and the plaintiff, the title in fee simple thereto is in the latter, and that the defendant, Kelly, be required to surrender to…

Justice Moncbief, without a Jury, on the 21st of November, 1861. The action was brought by the plaintiffs against the defendants, Peleg G. Berry and Homer L. Smith, who were judgment debtors of the plaintiff, and Amos M. Atwell and Vincent Kenyon, to whom Berry and Smith had made a general assignment for benefit of creditors. The object of the action was to set aside the assignment and have a receiver appointed and directed to pay the plaintiffs’ judgment.

This action was brought to recover damages against the defendant for interfering with the use by the plaintiff of a wall standing upon the land of the former, adjoining the land of the latter.

Eobinson, Esq., to whom the issues in the cause were referred for trial. The plaintiffs, John A. Van Blarcom and Oliver J. Hayes, became assignees of certain stocks of one Christopher Ohamplin, which, at the time of the assignment, were under pledge to the defendants as collateral security for liabilities of said Ohamplin to the defendants, and were in their possession.

This action was brought to foreclose a mortgage. The facts> are fully stated in the report of a previous decision in the cause, (ante, 212,) on which a new trial was ordered. Upon the second trial, the plaintiff admitted the answers of Delaplaine and Platt, and presented the issues raised by the defendant Dempsey as the only issues in the cause.

This action was brought to recover the amount due on ■ a promissory note of one Billings, indorsed by the defendant. The complaint stated, in the usual mode, facts upon which the plaintiffs might recover, if the note were still in their possession.

The action was brought by the Chatham Bank against Frederick B. Betts, Archibald A. Thomas and Samuel B. Potter. Betts alone defended the action. The facts are fully stated in the opinion of Bobertson, J. The plaintiff having recovered a verdict, the defendant moved, at Special Term, in May, 1862, for a new trial.

<p>1. TJpon a question of negligence in mooring a vessel, it is proper to aslc a witness, who has been shown to be competent to give an opinion, what was the condition of the fastenings of the vessel, as to safety; this is a subject of science and experience, not of common knowledge.</p> <p>2. A Sheriff, in respect to property in his custody, is bound to exercise that degree of care, and no greater, which a careful, prudent man of good sense and judgment would exercise respecting such property, if it were his own.</p> <p>3. The provision of section 215 of the Code of Procedure, which requires the Sheriff taking personal property in proceedings of claim and delivery, to keep it in a secure place, does not require him to remove it from its place of deposit, unless it is unsafe there; and if that place be a vessel at a ■wharf, he is bound to see that it is properly moored, secured and fastened, against all ordinary perils of winds and waves, and if necessary, protected against any storm or gale, after it arose, by every means within his reach, which a prudent man would use for the purpose, either by removing the vessel to another place, or otherwise; but he is not bound to anticipate a storm of so unusual violence as not to have been reasonably expected.</p> <p>4. Thus where, in an action to recover the possession of a cargo of coal, from the master of a vessel lying at a pier in the port of New York, the Sheriff took possession, and put a keeper in charge of the coal, with the consent of the master, and the vessel sunk at the wharf during a violent storm; Held, in an action to recover from the Sheriff the damages sustained by the coal, and the expense of raising it, that it was only the duty of the Sheriff to take such steps to insure its safety, as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel, and her location with regard to exposure to storms, and having all the power of the Sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself.</p> <p>5. In such action, where the Court properly instructed the Jury as to the Sheriff’s duty; Held, that a request to charge that the Sheriff is responsible for the negligence of the master and crew, after he took possession, was not proper in form, and it was not error to refuse it.</p> <p>6. Held further, that the verdict for the defendant was not against the weight of evidence in this case, and that judgment thereon should be affirmed.</p>

This action was brought by Charles Mallory, Charles H. Mallory, David D. Mallory and George W. Mallory against Bichard E. Perkins and Charles Stem, to recover for freight for the transportation of some casks of wine and brandy on a voyage from San Eranciseo to New York. The defense was the loss of the contents of two of such casks of wine, by leakage produced by improper stowage, and not by dangers of the seas.

<p>1. Tradesmen who sell goods to a wife upon her husband’s account, after notice from him not to do so, cannot recover from him therefor, unless they show a subsequent promise by him; to pay, or that the' goods sold were necessary and suitable to her condition in life, and that she was not otherwise provided for by her husband.</p> <p>2. If the husband has given such notice, the burden of proof is upon the plaintiffs, to show that the goods sold were necessary and not provided by the husband.</p>

<p>1. A general verdict in favor of one party, rendered by the Jury, in obedience to the instructions of the Judge, cannot be corrected on motion, so as to transform it into a verdict for the other party.,</p> <p>2. Wherever the Court, on a supposed state of facts, instructs the Jury, if they so find the facts, to render a verdict for the plaintiff, when the instruction should have be’en to find, in that event, a verdict for the defendant, the remedy, if no exception is taken, is to move, on a case, for a new trial.</p> <p>3. This rule applies where the defendant tendered and paid into Court the amount due, and the Judge directed, and the Jury accordingly found a verdict for the plaintiff for that sum, instead of a verdict for defendant.</p>

■ The action was to recover damages for the breach of a warranty made by the defendant to the plaintiffs, on the sale of about fifty-four dozen hats. The hats were purchased by sample, and it was alleged that the bulk did not correspond with the sample shown, the defendant having promised that they should.

<p>1. The Code of Procedure does not authorize the issue of»aa attachment, as a provisional remedy in an action of an equitable nature, where the amount which the plaintiffs may recover must-be ascertained by an accounting, and the costs are in the discretion of the Court,</p> <p>2. Thus, where in action for an injunction against the infringement of a trade mark, and for damages, an attachment was issued; Held, that it was improvidently granted, and must be set aside. Such an action is not “ an action for the recovery of money" within the meaning of section 227 of the Code.</p>

This action, as is stated in the foregoing report of another appeal therein, was brought to restrain the infringement of a trade mark adopted by the plaintiffs in the sale of wine.

The plaintiffs, a corporation of the State of Massachusetts, brought this action, on behalf of themselves and certain other creditors of Robert Rennie, against William. Sturgis, Jr., William Shaw, Henry Shaw and Latimer Bailey, composing the firm of Sturgis, Shaw & Go., and said Repnie. The plaintiffs had recovered four judgments against Rennie, in the Supreme Court of this State.

Motion to correct or amend the recitals of the judgment which had been entered in this case, in favor of plaintiff, after a new trial had been denied, and the order denying it affirmed by the Court, at General Term, on appeal. The decision of that appeal is reported, ante, p. 396. The facts relative to the present motion will sufficiently appear in the opinion.

This action was a judgment creditors’ suit, brought by various judgment and attachment creditors of the firm of O. W. & T. J. Moore & Co., to set aside an assignment by them to the defendants, Worthington and Knapp. The plaintiffs were, Grandison F. Read, James Benkard and Benjamin H. Hutton; James H. Black and Alexander Guild; William W. Stone, George R. Bowman and Robert Bliss; Charles H. Wilmerding, John 0.

Tots was an appeal from an order of the Court at Special Term, made on the 20th of December, 1861, upon a motion on the part of the defendants to amend their answer. The action was brought by Samuel 0. Harriott and Bernard Bice, assignees of Solomon Kipp and Abraham Brown, against James 1ST. Wells and Don Alonzo Cushman ; and was tried before a Eeferee. The facts are fully stated in the opinion of the Court at General Term.

<p>In an action to recover the possession of specific personal property, an order of arrest which recites that the cause of action is for a detainer or conversion, and requiring the Sheriff to hold the defendant to bail, in a specified sum, is unauthorized. In such an. action, the ground of arrest is a concealment, &c., of the property, and the order must require an undertaking to pay the amount which may be recovered.</p>

The action was to recover damages for the unlawful taking of the personal property of the plaintiff. The defendants were Claus Puckhofer and Charles F, Watts. They jointly answered the complaint, denying generally every allegation, and claiming the property under an. execution. The action was at issue about the 20th September, 1861.

John R. Currie was plaintiff in this action, and Edward P. Cowles and wife, and the president, directors and company of the Housatonic Bank, are the defendants. The suit was commenced October 15, 1855. The cause was tried before a Referee, upon whose report a judgment was entered for the plaintiff; but on appeal it was reversed, and a new trial ordered. That decision is reported 6 Bosw., 452, where the allegations of the complaint and the demand of relief are fully stated.

<p>1. The Court will not entertain a motion to suppress answers in a deposition taken on commission, upon an objection going, not to the regularity of the execution of the commission, but merely to the admissibility of the witnesses’ evidence.</p> <p>2. In interrogatories to take the deposition of a witness upon commission, a cross-interrogatory, asking if a log-book was kept, on a certain vessel, and if so, whether it did not contain a statement upon a subject in question, and requiring the witness to produce the log-book, is not sufficient to require the book or a copy of it, to be annexed to the deposition. The witness shoúld be required to annex a copy, if it be desired, to make it an exhibit.</p>

This action was brought by John P. Treadwell and Chester ‘ Lamb, two members of the firm of Treadwell, Whitcomb & Co., against Thomas Williams, Jr., and Virgil Whitcomb, the latter of whom was the third member of that firm. The relief sought was to have a conveyance which Whitcomb had made, of his undivided interest in real estate of the partnership, to Williams, set aside, on the ground that it was made without their consent and impaired the credit of the firm.

In this action two motions were made, under section 122 of the Code of Procedure, by different persons, to be made parties defendants. The action was for the recovery of the possession of specific personal property. The facts, as gathered from the papers, were as follows: About the 14th of March, 1862, the plaintiff sold to the defendant twenty-five hogsheads of tallow, to be‘paid for in cash on delivery.

This action was brought by the plaintiffs, a corporation of the State of Massachusetts, against William Sturgis, Jr., William Shaw, Henry Shaw, Latimer Bailey, (composing the firm of Sturgis, Shaw & Go.,) and Robert Rennie, defendants. The plaintiffs had previously obtained judgr ments in the Supreme Court against Rennie, upon drafts held by them, which were drawn by him on the firm of Sturgis, Shaw & Co., and by them accepted.

. This action, which was in the nature of a creditor’s bill, was brought by the plaintiff against George Harrison, Henry Harrison, as the Receiver of the estate and effects of the said George Harrison, Horace B. Olaflin, William H. Mellen, Hathaniel Miller, Daniel H. Oonkling and Henry Stone, the latter of whom were judgment creditors of the defendant, George Harrison.

This was a motion for a new trial, in an action in the nature of ejectment. The facts are fully stated in the opinion of the Court.

This action was brought by Wells Phillips and Albert Smith, against the defendant, to recover for goods sold. The defendant demurred to the complaint, the substance of which is stated in the opinion.

Demurrer to answer. This action was brought to recover for the use and occupation of apartments in the City Assembly Rooms, in this city. The complaint also alleged a hiring by the defendants. The defendant, Richards, in his answer alleged, that there was a defect of parties; that several persons, (naming them,) “all of whom reside in the City of Flew York,” ought to be joined as defendants.

In this action the defendants, who were sued upon a policy of marine insurance, moved for a bill of particulars, or account of the items claimed.

<p>1. The only disbursements which are to be allowed in adjusting the costs in a civil action under the Code of Procedure, are those specified in section 311 of the Code.</p> <p>2. The expenses of exemplified copies of foreign documents are not taxable, especially where there is no affidavit that the documents were actually and necessarily used, or obtained necessarily for use.</p>

This was a motion made by the assignee of a judgment debtor of whose estate a Beceiver had been appointed in supplementary proceedings, to compel such Beceiver to employ a different attorney and counsel from that of the judgment creditor, in the present action commenced by such Beceiver to set aside an assignment by such debtor to such assignee, as fraudulent.

lit this action, which was by a wife, for a divorce, the plaintiff obtained a judgment granting the relief sought, and the judgment contained provisions that there should be allowed to the plaintiff for her support, the sum of $4,000 a year, during the continuance in life of both of the parties, payable in quarterly installments in each year.

This was an aetion, commenced in ¡November, 1843, to recover from the defendant a sum of money which the plaintiff alleged he had paid to the use of Hugh Smith, deceased. After Hugh Smith’s death, the claim was presented to Peter Smith, his executor, and rejected. The defendant, Bartlett Smith, as administrator, now represented the estate.