Volume 9 — Daly's New York Common Pleas Reports

Exceptions taken by the plaintiff at a trial term, of this court, ordered to be heard, in the first instance, at the general term. The action was brought to recover for services rendered by the plaintiff, as engineer to the Health Department of the City of Hew York, in the years 1871, 1872 and 1873. Prior to June 1, 1871, the plaintiff had been engineer to the Board of Health, at a salary of $4,000 a year.

This was an action of ejectment for premises situated in the City of New York, and for the recovery of mesne profits. The plaintiffs claimed as the widow and children of William R. Hornes, who died, seized of the premises in question, and intestate. The defendants denied the validity of the marriage of William R. Ilynes alleged by the plaintiffs, and claimed the premises, two of them as his sisters and heirs at law, the others as their tenants.

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

The action was brought to set aside a sale of real property under an execution, on grounds which are stated in the opinion. Upon trial without a jury, the complaint was dismissed, and on the findings dismissing the complaint judgment was entered for the defendants. From this judgment the plaintiff appealed.

<p>Appeal from an order of this court denying a motion for a resale of premises sold under a judgment in an action for foreclosure of a mortgage.</p> <p>The grounds of the motion are stated in the opinion.</p>

<p>Pending appeals from judgments upon which executions had been issued in each of four actions against the same defendant, an order was made that, upon the defendant filing a proper undertaking in each of the actions, and the justification by the sureties, and approval of the undertakings by a justice of the court, the plaintiff’s proceedings should be stayed and che execution superseded. For the purpose of complying with this order, the defendant procured B. and 0. to execute joint undertakings id each of the four actions, and at the time fixed for the justification of the sureties, B. attended and was examined as to his sufficiency, and his examination was sworn to before the justice; but 0. did not attend. Thereupon an order was made that the defendant be allowed to substitute a new surety in place of 0., and that such new surety should justify on a day named, and that new undertakings should be executed and filed on that day in each case. The defendant filed new undertakings in all the actions, each executed by two new sureties, who were examined and justified, and the new undertakings were approved by the justice. The undertakings executed by B. and 0. were never presented to the justice for approval, and the sufficiency of B. was never passed upon by him. In an action against B. and G. on the undertakings executed by them,—Held, that a refusal of the judge to charge the jury as requested on behalf of the defendant B., that the undertakings sued on were not approved by the court, was error; as, without such instruction, the jury might well suppose that the swearing by B. to his justification before the justice was equivalent to an acceptance of Mm as surety by the justice.</p> <p>So, a refusal to charge as requested on behalf of the defendant B., that the co-surety with B. not having justified, B. was exonerated from liability, was error. By the terms of the order, pursuant to wlfich the undertakings were executed, they were not to operate as a stay until the justification of the sureties and approval of the judge; and 0., the co-surety, having failed to justify, and the undertakings being joint and not several, B. was discharged as well as 0. No damage could have been sustained by tbs plaintiffs from the giving of the undertakings, as they could not operate as a stay until justification and approval.</p> <p>Neither could B. he held liable upon the undertakings on an alleged parol agreement that he would consider himself bound. Such an agreement would he clearly within the statute of frauds. Nor did he remain liable upon the undertakings in. the absence of any agreement to release him from responsibility. He had the right to claim the joint liability of his co-surety as a condition of his obligation. That was the undertaking he signed, and no other; and that undertaking could not be made several by parol.</p>

The action was brought to recover the value of services rendered by the plaintiffs to the defendants in publishing certain advertisements. The defendants alleged that the advertís- ing was done under a special agreement in writing, and that the plaintiffs had not performed the agreement on them part: The facts are stated in the opinion. Upon trial before a referee, he found for the defendants, and on his report, judgment was entered for the defendants.

The action was brought to compel the re-assignment to the plaintiff, a married woman, of a policy of insurance on the life of her husband, which policy she had previously assigned to the defendant as collateral security for the repayment of money loaned by the defendant to her husband. The facts are stated in the opinion. Upon trial by the court without a jury, jndgment was entered for the plaintiff. From this judgment the defendant appealed.

In February, 1873, the defendants were tenants of the building 233 William street, New York city. The defendants, Dunham & Russell, were bookbinders, and tenants on the floor above the street. The defendant, Jenkins, was a printer, and tenant of the upper floors.

<p>A defect in the affidavit of service of the summons and complaint is not ground for setting aside a judgment against the defendant, where the record shows beyond doubt that the summons and complaint were actually served upon him.</p> <p>The admission of improper testimony to identify the defendant in an action for divorce is not a sufficient ground for setting aside a judgment against him, if there was other testimony sufficient, if true, to establish his identity.</p> <p>The fact that a wife, who has obtained a divorce on the ground of adultery, had herself committed adultery before the divorce was granted, by marrying again, she believing at the time that she had been legally divorced from her first husband and had a right to marry, is not a ground for setting aside a decree of divorce to which she was otherwise, beyond question, entitled.</p> <p>Insufficiency of the testimony upon which a divorce was granted is not ground for setting aside the decree after the lapse of several months, unless there was an entire failure of evidence.</p> <p>The amendment of a complaint to conform, to the evidence, even though erroneously allowed, is not a ground for setting aside the judgment founded on it, where such evidence tended to establish another cause of action contained in the complaint, and the defendant was therefore not damnified by the amendment.</p> <p>A judgment of divorce, upon the report of a referee, will not be set aside because the motion to confirm the referee’s report, made before one judge, was renewed before another, and there is no competent evidence of leave to renew, where, notice of the second motion having been given, the objection was not taken at the time.</p> <p>The provision of the Code (Code Civ. Proc. § WO), that “in the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits,” applies to-a motion to confirm the report of the referee in an action for divorce, made before a judge of this court at chambers.</p> <p>In an action by a wife against her husband for a separation, an amendment of the complaint was allowed, by which the action was changed to a suit for an absolute divorce. The order allowing the amendment was made more than seven years after the commencement of the action, and without personal notice to the defendant, although the papers upon which the application was made showed that the plaintiff knew of the whereabouts of the defendant, and that he was not in a condition to defend. Held, that the amendment was improperly allowed, and was unauthorized either by the provisions of the Code in respect of amendments or under any inherent power of the court, independent of statute, to make amendments in furtherance of justice; and that a decree of divorce granted to the wife upon such amended complaint must be set aside.</p> <p>As the legislature has prescribed in what cases the court can allow amendments to a pleading, though no negative words are used in the statute, the court is necessarily limited to the cases prescribed by law; although, if there had been no provision in the Code in respect to amendments, the court might have had an inherent power to grant amendments in furtherance of justice. Per Van Brunt and Larremore, JJ.</p> <p>If the court, on appeal, is of opinion that a decree of divorce is void, it is its duty, upon giving a hearing to the party to be affected by the action of the court, to set aside the decree upon its own motion, notwithstanding an objection that the attorney appearing for such party has been dismissed by him, and has no right to prosecute the appeal.</p>

<p>Where a purchaser of goods upon credit represents himself to the seller as solvent, and twelve, days afterwards makes a general assignment for the ■ benefit of creditors, on the ground of insolvency, having assets sufficient to pay only twenty-five per cent, of his debts, in the absence of proof that some unexpected disaster caused a complete change in his condition, the con- . elusion is irresistible that his representation of solvency was false,</p> <p>la an action to recover back goods fraudulently purchased, and which have been transferred by the purchaser under a general assignment'for benefit of creditors, the assignee may properly be made a defendant as assignee; and the allegation of such assignment in the complaint is not an admission of title in the assignee.</p> <p>In such a case, the assignee, as he comes into possession of the goods innocently, is entitled to a demand for their return before action is brought; but where the plaintiffs, for the purpose of malting such a demand personally, went to the place where the goods were, and to the</p> <p>assignee’s own place of business, and, not seeing him at either place, made a demand upon the person in charge of the goods, leaving a written demand to be delivered to the assignee, held, that this was all that, under the circumstances, the plaintiffs could be required to do.</p>

Appeals from judgments of a district court in the city of New York. The actions were brought to recover money received by the defendant to the use of the plaintiffs.

<p>Appeal from a judgment of the district court in the city of New York for the third judicial district.</p> <p>The facts are stated in. the opinion. Upon trial before a jury, they rendered a verdict for the plaintiff. From the judgment entered upon the verdict the defendant appealed.</p>

<p>An attorney, retained by an assignee for the benefit of creditors, is not entitled to be repaid by him, out of the assigned estate, disbursements made in contesting proceedings to have the debtor adjudicated bankrupt, in which proceedings he appeared as attorney for certain creditors; there being no evidence of any resulting benefit to the creditors generally.</p> <p>Upon a reference to ascertain the amount due to an attorney for professional services rendered to an assignee for benefit of creditors, where the attorney’s claim therefor against the assigned estate is reduced two-thirds in amount, the assignee is to be regarded as the prevailing party, and the costs of the reference should be imposed on the attorney.</p>

Appeals from a judgment of the marine court of the city of New York, affirming a judgment of that court entered upon a verdict rendered by a jury under direction of the court; and from an order of that court affirming an order denying a motion for a new trial on the ground of newly-discovered evidence. The action was brought to recover for damages sustained by reason of a forged and false instrument purporting to be a satisfaction-piece of a chattel mortgage.

The action was brought to recover damages for a breach of a covenant of seizin in a deed by defendant to plaintiff.

The action was brought to recover a balance alleged to be due under a contract by which the plaintiff was to make for the defendant a statue and bas-reliefs for a pedestal. The facts are stated in the opinion. Upon trial before a referee, he reported in favor of the plaintiff, and judgment for plaintiff was entered on Ms report. From the judgment the defendant appealed.

The action was brought by stenographers to recover for professional services. One of the defenses was that the manuscript furnished was grossly inaccurate, and some evidence to that effect was given.

The facts are stated in the opinion. Upon trial before a referee, he reported in favor of the plaintiffs; and judgment for plaintiffs was entered on the report. From the judgment the defendants appealed.

<p>Where articles are manufactured for and delivered to the purchaser, it is incumbent upon him to return them within a reasonable time in order to avail himself of the defense that the articles are defective.</p> <p>lío right to recoup damages for defective workmanship exists where the „ fault is equally attributable to both parties.</p>

The action was brought to recover the possession of a quantity of walnut logs. The facts are stated in the opinion. At the trial, the jury found a verdict for the plaintiff, by direction of the court. From the judgment entered upon the verdict, the defendants appealed to the general term of the marine court, which affirmed the judgment. From this judgment the defendants appealed to this court.

The action was brought to recover the price of goods sold and delivered. On the return, both parties appeared by attorney. At the trial, Mr. Arthur Furber, the managing clerk of plaintiff’s attorney, conducted the cause for the plaintiffs. Having offered himself as a witness in rebuttal, to prove an interview with the defendant, he was asked, on cross-examination, if he was an attorney and counselor at law, and said he was not.

<p>Appeal from a judgment of this court at special term, confirming the report of a referee upon an accounting by trustees, and from an interlocutory judgment removing the trustees and directing the accounting.</p> <p>The action was brought against the defendants, individually and as trustees under a will, to remove them and compel them to account as trustees, and to have the amount found due upon such accounting declared to be a lien upon certain property.</p> <p>The plaintiffs were the widow and infant children of Abraham Hooley, Jr., late of Jersey City. Abraham Hooley, Jr., before and at the time of his death was engaged in business in Hew York with the defendant Gieve and one Mackenzie, under the firm name of Abraham Hooley & Co. Hooley was the owner of more than two-thirds of the assets of said partnership, and the defendant Gieve was the owner of the balance.</p> <p>The defendant Cutts was employed as book-keeper by the firm of Hooley & Co., which firm at the death of Hooley was solvent, and had a large surplus. Hooley died on July 28, 1873, leaving him surviving the plaintiffs, his widow and only children.</p> <p>The said Abraham Hooley, Jr., left a last will and testament, as alleged in the complaint herein, whereby, among other things, after devising certain specific personal property to the plaintiff Lucy Hooley, and making certain bequests, amounting in all to the sum of $1,000, he gave and devised all the rest, residue and remainder of his property of which he should die possessed, both real and personal, to the defendants, Abraham Gieve and Samuel G. Cutts, as trustees, to have and to hold the same upon certain trusts, and for certain uses and purposes, which are set forth in the said will in the words and figures following; to wit:</p> <p>“ Fifth.. I direct my said trustees to withdraw my interest from the firm of Abraham Hooley & Co., as soon as practicable after my death, and invest the same, with all other moneys that may be on hand at the time of my death, or that may thereafter come into their possession from sales of any portion of , my personal estate, in first mortgages on improved real estate in the city of New York, State of New York, or in Jersey City, State of New Jersey, at not less than current rates of interest, or in registered bonds of the United States Government.</p> <p>“ The real estate of which I shall die seized, I direct shall not be sold.”</p> <p>“ Sixth. I further direct my said trustees to pay over to my wife all the rents and profits and income of my estate so long as she may live.”</p> <p>“ Seventh. Upon the death of my wife the said trustees shall divide my entire estate into as many shares as there shall be children of my body then living, and the children that shall have died leaving descendants. Said shares shall be of equal amount of value, but need not be separately invested, as my only purpose in so dividing my .estate is to afford an easy method of fixing an amount or proportion which my devisees or legatees are from time to time to receive.</p> <p>“ Eighth. The said trustees shall transfer one of the said shares to each of the children of my body, after the death of my wife, as aforesaid; such transfer to be made immediately to those who are twenty-one. years of age or over, and to those under twenty-one years of age, as they shall successively attain the age of twenty-one years.”</p> <p>And the said Abraham Hooley, Jr., by his said will, appointed the defendants Abraham Gieve and Samuel G. Cutts executors, and the plaintiff Lucy Hooley executrix of said will.</p> <p>On September 4, 1873, this will was admitted to probate by the surrogate of the city and county of New York, and on September 13, 1873, by the surrogate of the county of Hudson, State of New Jersey, and letters testamentary were issued thereon to the defendants Gieve and Cutts. After Hooley’s death the business was carried on by Gieve and Mackenzie as surviving partners until January 1, 1874.</p> <p>On or about January 1, 1874, a copartnership was formed by Gieve, Outts and Mackenzie, under the firm name of Abraham Gieve and Company, and this new firm took possession of all the assets of A. Hooley & Co., and proceeded ro do business with them until some time in 1877. No other stock» or capital was put into the firm. Cutts and Mackenzie furnished nothing whatever. The business was a losing one and there were no profits to be divided. The old goods were sold by the firm and with the proceeds new goods were bought in the usual course of business, and certain goods were purchased upon the credit of the firm, and at the time of the commencement of this action said firm was indebted therefor to divers persons to the aggregate amount of several thousand dollars. The defendants did not withdraw Hooloy’s interest as soon as practicable after his death, from said firm, and in fact, never invested any part of the estate of which they were trustees, except the sum of $10,000, which they subsequently converted- to their own use.</p> <p>Upon the trial, an interlocutory judgment was rendered, removing the defendants as trustees under the will, directing an account of the trust estate, and declaring the amount found due a lien upon the merchandise and assets of the defendants, and ordering judgment against the defendants for any deficiency that should remain, and for costs. A referee'was appointed to take the account, and to ascertain and report the amount of the property to which the lien decreed attached. Upon the report of the referee a final judgment was entered confirming his report, distributing the fund in accordance therewith, and for the recovery by the plaintiffs of the deficiency. From this judgment the defendants appealed, bringing up also for review the previous interlocutory judgment.</p> <p>There was no breach of trust: the relation between the parties was that of debtor and creditor (Toller Executors, 166, 167, citing 2 Ves. 33 ; 10 Ves., Jr. 110 ; 1 Term R. 295; Vid. Off. Ex. 83, and 3 Bn. C. C. 459 ; Vyse v. Foster, L. R., 8 Ch. App. 309 ; affirmed, L. R. 7 H. L. 318 ; Richter v. Poppenhusen, 57 Barb. 312; Jacquin v. Buisson, 11 How. Pr. 385). Trustees are not punishable for technical breaches of trust (Hill Trustees, 380, citing Garrett v. Noble, 6 Sim. 504; Id. 572; Thompson v. Brown, 4 Johns. Ch. 619 ; Hutchinson v. Smith, 7 Paige, 27). Mrs. Hooley was estopped by acquiescence in all the acts constituting the alleged breach of trust (Hill Trustees, 526, citing Walker v. Symonds, 3 Swanst. 64; Brice v. Stokes, 11 Ves. 319, 326; Nail v. Punter, 5 Sim. 555 ; Booth v. Booth, 1 Beav. 125, 130; Greenwood v. Wakeford, Id. 576; Kellamay v. Johnson, 5 Beav. 319 ; Lord Montford v. Lord Cadogan, 17 Ves. 490; Lincoln v. Wright, 4 Beav. 427; Langford v. Gascoigne, Id. 333 ; Harden v. Parsons, 1 Ed. 145 ; Walmesley v. Booth, 2 Atk. 25; Keble v. Thompson, 3 Bro. Ch. 93; Toller Executors, 485; 2 Story Eq. Juris. §§ 697, 719; 1 Williams Executors, 593 ; Monell v. Monell, 5 Johns. Ch. 287; Ex parte Shakeshaft, 3 Bro. Ch. 164; (Colt v. Lasnier, 9 Cow. 319; Sacia v. Berthoud, 17 Barb. 15). The identity of Hooley and Co.’s assets is lost; hence executors of Hooley can have no remedy against any specific assets (Barlow v. Yeomans, 50 Barb. 187; Matter of Wells, 3 Redf. 58; Hart v. Bulkley, 2 Edw. Ch. 70; Willett v. Stringer, 17 Abb. Pr. 152; Kip v. Bank of New York, 10 Johns. 62; Butler v. Sprague, 66 N. Y. 395; Pennell v. Deffell, 4 De Gex, M. & G. 372, approved in Van Alen v. American Nat. Bank, 52 N. Y. 7; Newt v. Burman, 4 Russ. 247; Thompsons Appeal, 22 Pa. St. 16; Payne v. Holmby, 25 Beav. 280; Toller Executors, 487; Williams Executors, 1101; Hill Trustees, 531; Story Eq. Juris. §§ 1259, 1210; Geery v. Geery, 63 N. Y. 253). Creditors must first be paid (Menagh v. Whitwell, 52 N. Y. 146; Egberts v. Wood, 3 Paige, 517; Wilson v. Robertson, 21 N. Y. 587; Burtus v. Tisdall, 4 Barb. 580; Washburn v. Goodman, 17 Pick. 519; Sage v. Woodin, 66 N. Y. 578 ; Daby v. Ericsson, 45 N. Y. 790; Kelly v. Scott, 49 N. Y. 595 ; Hutchinson v. Smith, 7 Paige, 29; Eighth Nat. Bank of N. Y. v. Fitch, 49 N. Y. 539; Phillips v. Wheeler, 67 N. Y. 104), and are necessary parties (Schenck v. Ingraham, 5 Hun, 397; Johnson v. Snyder, 8 How. Pr. 498). Title cannot pass to plaintiffs on the principle of accession (Lewin Trusts, 211; Schenck v. Ingraham, 5 Hun, 397; Merritt v. Johnson, 7 Johns. 474; Bouvier L. Dic. “ Adjunction ”).</p> <p>It was established that the defendants committed flagrant breaches of trust, for which they should be removed (Ackerman v. Emott, 4 Barb. 626; Colburn v. Morton, 1 Abb. Ct. of App. Dec. 378; Hill Trustees, 524 ; Att. Gen. v. Mayor of Coventry, 7 Bro. P. C. 235; Att. Gen. v. Shore, 7 Sim. 309; Att. v. Drummond, 1 Dr. & W. 353; Ex parte Greenhouse, 1 Mad. 92 ; Matter of Mechanics’ Bank, 2 Barb. 446; Wedderburn v. Wedderburn, 2 Keen, 722, 749 ; Milne & Cr. 41-52; Craig v. Craig, 3 Barb. Ch. 76; Deen v. Cozens, 7. Robt. 178 ; Matter of Wadsworth, 2 Barb. Ch. 381; Quackenboss v. Southwick, 41 N. Y. 117). This is the proper action and is brought by the proper parties (Hill Trustees, 194; Millard v. Eyre, 2 Ves., Jr. 94; Bainbridge v. Blair, 6 Beav. 495; Wardle v. Hargrave, 11 L. J., N. S., Ch. 126 ; Cooper v. Day, 1 Rich. Eq. 24; Hamlie v. Gibson, 16 Hun, 158). The only defense suggested—Mrs. Hooley’s consent—fails (Wood v. Wood, 5 Paige, 596; Wedderburn v. Wedderburn, 2 Keen, 722-749). When a trustee has misapplied a trust fund, and thereby rendered himself liable to removal, the cestui gue tsust may follow the fund whenever it may be -traced, in whatever form it be found, and into the hands of any person except a bond fide purchaser or incumbrancer for value (Newton v. Porter, 69 N. Y. 133,137-140; Lewin Trusts, 6th ed. 732; Perry Trusts, §§ 837, 838; Felton v. Long, 8 Ired. Eq. 224; Butler v. Hicks, 19 Miss. 78; Oliver v. Piatt, 3 How. [U. S.] 333 ; Martin v. Geer, 1 Ga. Dec. 109; Day v. Roth, 18 N. Y. 448; Piatt v. Oliver, 3 McLean, 27; MacGregor v. MacGregor, 9 Iowa, 65; Moffatt v. McDonald, 11 Humph. [Tenn.] 457; Taylor v. Plummer, 3 Maule & S. 562; 2 Story Eq. § 1258 ; Le Breton v. Pierce, 2 Allen [Mass.] 12; Creditors of Spencer v. Spencer, 21 Ga. 200 ; Scott v. Surman, Willis, 400; Whitcomb v. Jacob, Salk. 160; Lane v. Dighton, Ambler, 409). If the trustee has mingled the trust fund with property of his own, so that the former cannot be distinguished, the cestui gue trust can take the resulting fund, or at least an amount thereof equal to the trust fund (Norris's Appeal, 71 Penn. St. 106; Day v. Roth, 18 N. Y. 448; Cooke v. Addison, 1 Eq. 467; Lupton v. White, 15 Ves. 432; Pinkett v. Wright, 2 Hare, 120; Hart v. Bulkley, 2 Edw. 70; Barlow v. Yeomans, 50 Barb. 187; Lathrop v. Bampton, 31 Cal. 17; Docker v. Somes, 2 Mylne & K. 674; Hart v. Ten Eyck, 2 Johns. Ch. 108; Goldsmith v. Stetson, 30 Ala. 164, 167; Exporte Watson, 2 Ves. & B. 414; Willett y. Stringer, 17 Abb. Pr. 152; Kip v. Bank of New York, 10 Johns. 63; Thompsons Appeal, 22 Penn. St. 16; Middleton v. Pollock, 35 L. T. Rep., N. S. 608; The Idaho, 3 Otto, 586; Jewett v. Dringer, N. J. Ct. of App. 1878).</p>

<p>Petition to vacate an assessment for regulating, grading and paving a portion of Hinth avenue in the city of Hew York.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages for injuries sustained by goods of the plaintiffs, while on board a steamship owned by the defendants, for the purpose of transportation. The facts are stated in the opinion. At the trial, the jury found for the plaintiffs,- and judgment for the plaintiffs was entered on the verdict. From this judgment the defendants appealed.

In April, 1873, the defendant, by an instrument under seal, hired of the plaintiff certain premises in the city of New York, from May 1, 1873, to May 1,1876, at the yearly rent of $4,200, payable monthly in advance.

The action was brought to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the defendant’s negligence; The facts are stated in the opinion. At the trial the jury found a verdict for the plaintiff, and a motion by the defendant for a new trial was denied, and judgment entered on the verdict. From this judgment and from the order denying his motion for a new trial the defendant appealed.

<p>Appeal from an order of this court at special term, granting leave to the defendant to withdraw a demurrer to the complaint and serve an answer.</p> <p>The facts, so far as material, and the proceedings in the action, are stated in the opinion.</p>

a jury, and granting a new trial. The action was brought by the plaintiff, as assignee of Ella Patrick and Joseph Scherer, to recover damages for the conversion of goods owned by them, the alleged conversion consisting in the taking of the property by the defendant, John O. Lyst, as marshal, under attachments procured by the defendants, David Solinger- and Abraham H. Newburge, in actions in the district court in the city of New York for the seventh judicial district; in one…

The action was brought to recover rent of premises situated in the State of New Jersey. The facts are stated in the opinion. At the trial the jury found for the plaintiff, and judgment for the plaintiff was entered on the verdict. From the judgment the defendant appealed1 to the general term of the marine court, which affirmed the judgment; and from the order of affirmance the defendant appealed to this court.

The action was brought to recover the value of certain goods sold by the plaintiff to the defendants upon «Credit. The facts are stated in tlie opinion. At the trial the judge directed a ver ct for the plaintiff, and judgment for the plaintiff was entered on the verdict.

The action was brought upon a promissory note, alleged in, the complaint to have been made by the defendant to his own order, and indorsed and delivered by him, and transferred before maturity to the plaintiff for valuable consideration.

<p>Appeal from an order of this court at special term denying a motion by the plaintiffs for an injunction pendente lite, and the appointment of a receiver.</p>

<p>Appeal from a judgiúent of -this court entered on the report of a referee.</p> <p>The action was brought to recover the salary of the plaintiff as a clerk employed by the defendant. The facts are stated in the opinion. Upon trial before a referee he found for the defendant, and judgment for the defendant was entered on his report. From the judgment the plaintiff appealed.</p>

<p>Where, at the commencement of the trial, the case of the plaintiff is admitted, and his right to the judgment demanded in -the complaint is conceded, unless an affirmative defense be established, the right to open and close is with the defendant.</p> <p>A variance from an answer setting up the defense of usury, merely as to the exact amount of usurious interest received, without any claim on the part of the plaintiff that he has been misled thereby, does not invalidate the defense.</p> <p>An application to treat an unverified pleading as a nullity cannot be made at the trial.</p>

<p>Appeal from an order of this court at special term, directing the return of money collected on execution.</p> <p>The facts are stated in the opinion.</p>

<p>In an action of claim and delivery of personal property brought in a district court in the city of Hew York, judgment was rendered in favor of the plaintiff and execution issued and the property claimed was restored to the plaintiff. The judgment having been reversed on appeal to this court, an application was made by the defendants for restitution of the property, the provisions of the Code of Civil Procedure in respect to such applications not yet having gone into effect. Held, that under the Code of Procedure (§ 369), this court had no power to order restitution of the property ; and the failure o£ the legislature to give such authority must be regarded'as a casus omissus.</p>

The action was brought to recover damages for the breach of a contract by the defendant to sell and deliver ice to the plaintiff. The facts are stated in the opinion. Uppn trial before a referee he found for the plaintiff, and on his report judgment for the plaintiff was entered. From the judgment the defendant appealed.

The action was brought to recover from James B. Craig and Sidney Webster, co-partners under the firm name of W ebster & Craig, and attorneys and counselors at law, money received by them from the government of the United States, as attorneys of the firm of Wellington & Kidder, of which firm the plaintiff was the assignee under a general assignment for the benefit of creditors. The facts are stated in the opinion.

The action was brought to recover the value of goods delivered by the plaintiff to the defendants as carriers, and wh ch the defendants had 'not delivered to the consignees nor returned to the plaintiff. The facts are stated in the opinion. Upon the trial in the district court, the justice rendered judgment for the plaintiff. From the judgment the defendants appealed to this court.

■ The action was brought to recover demurrage claimed under a stipulation in a bill of lading. The facts are stated in the opinion. Upon the trial in the district court the justice rendered judgment for the plaintiff. From the judgment the defendants appealed to this court.

The action was brought to recover the amount of a check executed by the defendant. The facts are stated in the opinion. Judgment was rendered for the plaintiff. From the judgment the defendant appealed to this court.

The action was brought to recover the price of goods sold and delivered by the plaintiffs to the defendant’s wife, alleged to be necessaries for her use. The facts are stated in the opinion. Upon the trial the jury found for the plaintiffs, and judgment for the plaintiffs was entered on the verdict.

The action was brought to recover the amount of a policy of insurance against fire, issued by the defendant upon property owned by the plaintiff at the time of its destruction by fire. The facts are stated in the opinion. At the trial a jury was waived by consent of the parties, and the judge having found for the defendant, judgment for defendant was entered on his findings. From the judgment the plaintiff appealed.

The action was commenced on December 19th, 1868, to recover twenty-five barrels of sugar which, as alleged, the defendant wrongfully became possessed of and detained.

The action was brought to recover from a savings bank money deposited in the bank by the father of the plaintiff. By an order of interpleader, the plaintiff’s father, who also made claim to the money, was substituted as defendant instead of the bank. A trial by jury having been waived by consent, the cause was tried before a justice of the marine court, who found for the defendant, and judgment for the defendant was entered on his findings.

New York. This was an action of replevin for a horse, alleged to be wrongfully detained by the defendant from the plaintiff. The facts are stated in the opinion. Upon trial in the district court, thé justice rendered judgment for the plaintiff. From the judgment the defendant appealed to this court. ■

The action was brought to foreclose a mechanic’s lien against the defendant Mooney, as owner of the building, and one Van Clave, as contractor for the work, in respect of which the lien was claimed. The facts are stated in the opinion. . Van Clave did not answer. The answer of the defendant Mooney alleged that at the time the lien was filed nothing was due from him to Van Clave under the contract.

The petitioners were George P. Upham and William W. Tucker, to whom as trustees the assignor, John W. Lewis, in 1876 executed a bond for ,$25,000, secured by mortgage of certain premises on Greenwich and Washington streets, in the city of New York. In June, 1876, Lewis made a general assignment to John A. Davenport for the benefit of his creditors.

This was an action upon a promissory note. The defense was a discharge in bankruptcy. The reply was that a new promise had been made. The evidence in respect to the new promise was as follows, the plaintiff being the witness: Q. What did Mr. Abrahams say in regard to the note subsequently at your house ? A. He promised to pay me. Q. What did he say ? A. He said that he would pay me, and that there would not be two cents paid less than the note called for.

The action was brought to recover damages for the conversion of a horse alleged to have been wrongfully detained by the defendant from the plaintiff. The plaintiff was the owner of the horse, and had entrusted it to one Goff, to show it to persons desiring to purchase a hi*rse. Goff failed to return it to the plaintiff, and it was soon afterwards purchased by the defendant at a public auction.

<p>Where, under a judgment upon a promissory note against the makers, an execution has been levied upon their property, the release of such levy operates to release the indorsers, if such levy was sufficient to satisfy the judgment; or if not sufficient, the indorsers are released to the extent of the value of the property levied upon. But in a subsequent action on the note against the indorsers, evidence of such facts is not admissible unless pleaded as a defense ; and if such evidence is improperly admitted, although not relevant to any issue raised by the pleadings, and against the plaintiff’s objection, the failure of the judge to submit any question arising upon it to the jury is not erroneous; especially where no request is made for the submission of such question, and where the evidence does not show the value of the property levied on, nor to what extent the levy would operate to discharge the indorsers.</p>

<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 entered upon the verdict of a jury.</p> <p>The action was brought to recover for clothing supplied by the plaintiff to the minor son of the defendant, as necessaries. The facts are stated in the opinion. Upon trial, the jury found for the plaintiff, and judgment for the plaintiff was entered on the verdict. From the judgment the defendant apjieal^d to the general term of the marine court, which affirmed the judgment ; and from this decision the defendant appealed to this court, which reversed the judgment and ordered a new trial. On the second trial, the jury again found for the plaintiff, and a motion by the defendant for a new trial was denied, and judgment entered on the verdict. From the judgment and order denying a new trial the defendant again appealed to the general term of the marine court, which affirmed both. From the judgment of the general term the defendant appealed to this court.</p>

The allegations of the complaint are stated in the opinion. The defendant Coleman having demurred, upon trial of the issue of law, his demurrer was overruled, and judgment directed for the plaintiffs, with leave to the defendant to answer. No answer having been served within the time allowed, judgment for the plaintiffs was entered upon the order overruling the demurrer. From the judgment the defendant appealed.

<p>Appeal from a judgment of this court overruling demurrers to a complaint.</p> <p>The action was brought to foreclose an alleged mechanic’s lien, for materials furnished by the plaintiff, from June 7 to October 25, 1879, for the construction of fences and sheds upon which the lien was claimed, to George H. Zeiss, who was at the time the lessee, for a term of five years, of the land on which the structures were erected. On November 4, 1879, George H. Zeiss died; and the defendants, Katherina W. Zeiss and J. D. Kurtz Crook, were appointed and qualified as administrators of his estate on November 11, 187.9. On November 21, 1879, the plaintiff filed his claim, under the Mechanic’s Lien Act of 1875, to a lien on the lease, fences and other structures and buildings, for the foreclosure of which lien this action was brought. The administrators of Zeiss, above named, demurred to the complaint, which set forth the facts above stated, on the ground of insufficiency; and the defendants, John Rheinfrank, Frederick Wagner, and Henry Granzenmuller, who had purchased the property from the administrators, and who were made parties as having an interest in the premises, appeared separately and also demurred to the complaint on the same ground. At the hearing at special term, the demurrers were overruled, and judgment ordered for plaintiff, with leave to the defendants to withdraw their demurrers and put in answers; and, upon the failure of the defendants to answer within the time allowed, judgment of foreclosure and sale was entered for the plaintiff. From this judgment all the defendants appealed.</p>

On the 15th day of September, 1878, the plaintiff, a child of two years of age, was injured by being run over by a car of the defendant. Upon the trial it was claimed upon the part of the plaintiff, that it was in conseqence of the negligent action of the driver of the defendant in the driving of the car the action occurred, and it Was claimed upon the part of the defendant that the accident was caused by the negligence of the parents, the child not being properly attended.

<p>Upon setting aside a judgment entered hy default against a husband and wife, and allowing them to come in and defend, the judgment was ordered to remain as security, an execution having been levied upon property of the wife sufficient to satisfy the judgment. On the trial of the cause before a referee, it appeared in evidence that the plaintiff had previously obtained</p> <p>a judgment against the husband by default in an action founded upon the same transaction; and thereupon the defendants were allowed to amend their answers by setting up that judgment as a defense. Upon this the plaintiff discontinued the action as against the husband, and served an amended complaint as against the wife alone ; whereupon she moved to set aside the existing judgment remaining as security against her husband and herself, and the levy of execution under it. Held, that the motion should not be granted, but that the defendant should be required to establish her defense in the ordinary way, leaving the rights of the parties to be determined by such judgment as should be ultimately rendered.</p>

The action was brought upon two promissory notes, against Charles Jones and Spencer Gregory as executors of John Patten, the indorser, and William Ebbitt, the maker, of the notes. The facts are stated in the opinion. Ebbitt did not appear. Upon the trial of the action as against the other defendants, the court directed a verdict for the plaintiff, and judgment for the plaintiff was entered on the verdict. From the judgment the defendants, Jones and Gregory appealed.

<p>Appeal from an order of this court upon a petition by ■ an assignee for benefit of creditors, determining that wages of officers and seamen of a steamship were not entitled to preference in payment over other claims against the assigned estate.</p>

<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 entered upon the verdict of a jury, and an order denying a motion for new trial.</p> <p>The action was brought for the price of goods sold and delivered by the plaintiffs to the defendant. The. defense was a composition in bankruptcy, a tender of the amount of the composition, and' a refusal by the plaintiffs. Upon the trial, the jury found for the plaintiffs for the amount of the composition only; whereupon the plaintiffs moved to set aside the verdict as inadequate and insufficient in amount, and for a new trial on the minutes, which was denied, and judgment for the plaintiffs was entered on the verdict. From tiie judgment and the order denying their motion for a new trial, the plaintiffs appealed to the general term of the marine court, which affirmed both. From this judgment the plaintiffs appealed to this court.</p>

<p>Appeal from an order of this court, denying a motion for a stay of proceedings until the costs of a previous action between the same parties should be paid by the plaintiff.</p> <p>The facts are stated in the opinion.</p>

The action was brought to recover damages for negligently causing the death of a minor son of the plaintiff, who sued as the administrator of the deceased. A former trial resulted in a verdict for the plaintiff, but the judgment entered on the verdict was reversed on appeal to the general term, and a new trial ordered (see 8 Daly, 304, where also- the facts of the ease are stated). Upon the new trial, the complaint was dismissed, and judgment for the defendant was entered.

<p>The plaintiff had a right of trade-mark in a symbol which consisted of an eagle with outstretched wings, perched oñ a mortar in which rested a pestle, which device was used upon labels for medicinal preparations and other articles. Held, that the use of this symbol by the defendant as a prominent feature of labels for similar preparations and articles, was an infringement of the plaintiff’s rights, although another name appeared conspicuously upon such, labels instead of the name of the plaintiff, and notwithstanding the fact that symbols of a similar nature were shown to be in general use by druggists and apothecaries for purposes of ornament.</p>

<p>A contract of employment for a year, to commence on a day subsequent to the making of the contract, is void under the statute of frauds ; and in an action for damages for a breach of such contract, the objection may be raised on the trial, although the statute is not pleaded, where, under the pleadings, it is incumbent upon the plaintiff to prove the contract.</p>

The action was brought to recover for the alleged detention by the defendant, as sheriff, under a warrant of attachment, of certain goods claimed by the plaintiff. The facts are stated in the opinion. Upon the trial, the jury found a verdict for the plaintiff, and a motion by the defendant for a new trial was denied, and judgment for the plaintiff was entered on the verdict. From the judgment and the order denying his motion for a new trial, the defendant appealed.

<p>Upon trial of an action of claim and delivery, for goods included in a hill of lading in the name of a person not a party to the action, but which was in the possession of the plaintiffs, the judge instructed the jury that “ a bill of lading is a negotiable instrument, and the possession of it controls the property. If the goods are in transitu, you can give title by handing over and delivering the bill of lading and that a transfer of it is a transfer of the title to the property. Held, that as these instructions were erroneous, and there was nothing in the charge to correct the false impression which the jury would receive from such direction, and which might have influenced them in finding a verdict for the plaintiffs, the verdict could not be sustained.</p>

<p>The defendant was employed by the plaintiffs to make purchases for them upon a commission during a series of years, a new contract being made each year, each purchase being paid for separately, and each year’s business separately settled. The defendant, by making false statements to the plaintiffs as to prices paid, obtained from them, as their payments for such purchases, more than sufficient funds, and he applied the excess to his own use. After the termination of his employment and the settlement of his accounts, the plaintiffs discovered his fraudulent practices, and immediately brought an action to compel him to account and pay over to them the money so wrongfully obtained by him from them; in which he pleaded the Statute of Limitations. Held, that the action could not be sustained as to transactions which had been settled between the parties more than six years previously, it being “ an action upon a contract obligation or liability express or implied,” within subdivision 1 of section 383 of the Code of Civil Procedure. Although an accounting and other equitable relief was demanded in the complaint, and allowed by the interlocutory judgment, the only relief that could be afforded by a final judgment would be a judgment for a sum of money, 'and the action was not, therefore, within the meaning of subdivision 5of section 383, “an action to procure a judgment other than for a sum of money, on the ground of fraud, ” &c., in which cases, by that provision, the cause of action “is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims of the facts constituting the fraud. ” ¡Nor, although a demand was in fact made before the action, was the case within the requirement of section 410, that the time within which an action may be commenced “ must be computed from the time when the right to make the demand is complete since that section applies only “ where a demand is necessary to entitle a person to maintain an action,” and in this case the right to sue was not in any way dependent upon the demand made.</p>

This action was brought to restrain a sale under a judgment in an action for foreclosure of a mechanic’s lien. The facts of the case, as stated in the opinion of J. F. Daly, J., rendered upon the trial at the special term, and referred to in the following opinion of Yah Behnt.

The defendant in this action is a corporation organized under the laws of the State of New York providing for the incorporation of benevolent, charitable, scientific and missionary societies, and the acts amendatory thereof or supplementary thereto.

The facts are stated in the opinion of Lareemobe, J. The court has power to grant the relief asked for, as a court of equity (Freeman on Judgments, § 90). That the judgment is in the moving party’s own favor makes no difference (Id., § 91; Downing v. Still, 13 Mo. 318; Doss v. Tyack, 14 How. [U. S.] 297 ; Hatch v. Central Nat. Bank, 78 N. Y. 487).

.Appeal from an order of this court for a reference to ascertain the damages sustained by reason of an injunction.

<p>An appeal should not he deemed waived or abandoned or be so declared for want of prosecution, by a strict enforcement of the rules of practice, even in a case of long delay in bringing on the argument, where both parties have slept upon their rights.</p> <p>Where an injunction has been granted in an action on the application of the plaintiff, upon filing an undertaking in the usual form,—for the payment to the defendants of damages sustained by reason of the injunction if the court ‘ ‘ shall finally decide that the said plaintiff was not entitled thereto,”—an order entered upon the plaintiff’s consent, vacating the injunction, and a subsequent order, entered upon the plaintiff’s motion ex parte, discontinuing the action on payment of costs, amount to a decision that the plaintiff was not entitled to the injunction, sufficient to sustain an order of reference to ascertain the defendant’s damages by •reason thereof.</p> <p>The sum specified in such an undertaking is the limit of the liability thereon ; and when, upon such a reference, the referee reports a larger sum as the damages, the report should not be confirmed.</p>

<p>Where a receiver of the rents, issues and profits of mortgaged premises has heen-appointed in an action for foreclosure of the mortgage, and notice of his appointment has been given to a lessee of the premises under a lease from the mortgagor, and the lessee has paid rent falling due to the receiver, the mortgagor has no authority to accept a surrender from the lessee or to execute a new lease of the premises during the continuance of the receivership; and such surrender and acceptance and new lease constitute no defense to an action by the receiver against the lessee for rent subsequently accruing and remaining unpaid.</p>

Appeal .from a judgment of this court entered upon a dismissal of the complaint by the judge at the trial. J The facts are stated in the opinion.'

<p>By an agreement for the employment of the defendant, for a term of seven years, as resident manager for a foreign insurance company, his compensation was to be a share in certain commissions, to be divided three-fourths to him and one-fourth to the chairman of the local board, subject to the following conditions: the first year the defendant to receive the commissions until they should amount to the sum of $7,500, the excess to the extent of $3,000 to be applied in payment of the salary of the general agent; the second year the defendant to receive first $8,500, then the salary of the general agent to be paid out of any excess of his three-fourths share; the third and subsequent years, after payment to the defendant first of $10,000, the salary of the general agent to be defrayed out of his three-fourths proportion. More than a year before the expiration of this agreement the person who had been employed by the defendant as general agent or chief assistant, at a salary of $3.000 per year, resigned, and the defendant did not thereafter employ any one to succeed him, although the proceeds to the defendant of his share of the commissions amounted to more than $13,000 per year during the remainder of the term of the agreement. After its expiration, the company brought an action to recover from the defendant the amount which might have been applied by him to the payment of the salary of such chief assistant during the time that none was employed by him, at the rate of $3,000 per year. At the trial, evidence offered by the defendant that, in consequence of the falling off of the business of the company, the necessity for such employment no longer existed, and that the defendant himself did the work, was excluded. Held, that this was error, for which a judgment in favor of the company should be reversed.</p>

<p>In an action upon a bond of a constable of the city of New York under the provisions of the Act of 1813, c. 86, § 147 (3 R. L. 397),—that in case of any recovery by any person aggrieved against such constable for any default or misconduct in office, the bond given by such constable may be ordered to be put in suit, “upon motion in open court, and upon showing that such recovery hath been had, and that the said judgment is at the time of making the said motion unsatisfied,”—a verdict for the plaintiff should be for the penalty of the bond, the recovery being for the benefit of all persons recovering against the constable for a default or misconduct in office, each of whom may have the judgment enforced by execution for the amount of his recovery until the amount of the judgment is exhausted. And the order that such bond be put in suit is conclusive, in an action against a surety on the bond, that the judgment on which the order was granted was a recovery against the constable for a default or misconduct in office.</p> <p>The provision of the same section,—that “ the surety or sureties in such bond shall not be charged beyond the amount of the sums respectively in which they shall be bound in each bond,”—has no reference to the costs of an action upon such a bond against a surety; and upon a recovery against a surety in such an action, execution may issue for the benefit and on the motion of the party who has put the bond in suit, for the amount of his recovery against the constable and the costs in the action on the bond against the surety, although the total amount directed by such execution to be levied may exceed the penalty of the bond.</p>

The plaintiff’s intestate, Louis Semel, was struck, on the 7th of June, 1879, while crossing the railway track at a public crossing at Fordham, by an engine of the defendant drawing a train of cars from the city of New York, and was killed. The complaint alleges that said death was caused by reason of the defendant’s negligence.

On the 17th of November, 1878, an order was made in this action whereby the plaintiff and defendants other than the Mayor of the City of New York were ordered to refrain from the further prosecution of this action until the assignees in bankruptcy of the plaintiff, Charles Devlin, should be brought before the court and made a party to the action.

<p>Appeal from an order of this court appointing a referee in place of a deceased referee.</p> <p>The previous proceedings in the action, so far as material, are stated ante, p. 331. The order there mentioned appointing Homer A. Nelson, Esq., referee in place of William Bloomfield, deceased, having been reversed, as irregularly made, pending a stay at the time, the plaintiff moved at special term for the appointment of a new referee in place of the deceased referee; and his motion was opposed by the defendants, the Mayor, &c., on the .ground that no such appointment could be made, and that the motion should have been for a new order.of reference. The motion was granted, and an order entered appointing Abram Wakeman, Esq., referee, in the place and stead of William Bloomfield, deceased. From this order the defendants, the Mayor, &c., appealed.</p> <p>By the death of the referee before the cause was decided, the original order of reference was vacated (Hoffman Referees, 76; Emmet v. Bowers, 23 How. Pr. 300; Caldwell Arbitr. 96; Morse Arbitr. & Aw. 234,235; Harper v. Abrahams, 4 Moore, 3; Magown v. Sinclair, 5 Daly, 67-70).</p> <p>It the court concludes that the order of reference should he sustained, the number of referees ought to be increased to three (Bell v. The Mayor, Supr. Ct., April, 1877, MS.).</p> <p>The order of reference having been affirmed by the general term, the order of substitution of the referee Wakeman in the place and stead of the deceased referee, Bloomfield, was the only order proper for the special term to make. All the cases cited by the appellant are cases of arbitration, where the arbitrators were selected by consent, or of orders of reference where the appointment of the referee was made by consent in cases not referable.</p>

<p>Appeal from a judgment of this court, entered upon the verdict of a jury.</p> <p>The action was brought upon the following instrument in writing, under seal, executed by the defendant, and delivered to the plaintifí: “ In consideration of a bill of sale from Frank S. Edminster, of the date of this covenant, for himself, and as agent or attorney of Harvey Miller, of Windsor, Vermont, mentioned therein, and covenants therein, I hereby covenant and agree to pay said Frank S. Edminster, the sum of three hundred and twelve and 55-100 dollars, within eleven days from the date hereof, upon condition that said Edminster shall, within said eleven days, or such other time as shall be reasonable, obtain and exhibit to me, or my representatives, a power of attorney from said Harvey Miller, duly acknowledged, to make said bill of sale and receive the money herein mentioned.”</p> <p>The complaint set forth the above instrument, and alleged performance on the part of the plaintiff, and non-payment of the money or any part of it by the defendant. The facts appear in the opinion.</p> <p>At a previous trial the jury found a verdict for the plaintiff, but the judgment entered on the verdict was reversed for error in the admission of evidence of waiver of the condition of the above covenant, under a complaint alleging only performance, and not an excuse for non-performance (see 8 Daly, 138), and a new trial was ordered. At the new trial the court allowed the complaint to be amended by setting up, instead of a full performance of the condition, an acceptance by the defendant of the power of attorney tendered, and a waiver of any other performance. The jury found a verdict for the plaintiff, and from the judgment entered on the verdict the defendant appealed.</p>

Exceptions taken by the plaintiff at a trial term of this court, ordered to be heard, in the first instance, at the general term. The action was brought upon two policies of insurance issued by the defendants, loss, if any, payable to the plaintiff as mortgagee. At the time of the issuing of both policies, representations were made as to the occupancy of the premises, which were untrue.

' The action was brought upon a promissory note held by the plaintiff, and which was made by the defendant Thomas C. Van Brunt to the order of the defendants, George W. Smith and Edward S. Ferris, under their firm name of Geo. W. Smith & Co., and indorsed by them.

<p>A cause having been two days on the day calendar of the court for trial, the defendant’s attorney wrote to a witness who was in the defendant’s employ, to keep himself in readiness to answer a telegram for the next two days, and thereby save unnecessary attendance. On the last of those days the case was reached in its order and the trial proceeded. Owing to the absence of the witness from his place of business, two telegrams sent to him by the defendant’s attorney failed to reach him in time to secure his attendance before the close of the trial. The defendant moved for a new trial on the ground that he was surprised by the absence of the witness, and by the testimony of witnesses for the plaintiff to admissions by the defendant, which were denied by the defendant, and would have been contradicted also by the absent witness. Held, that a new trial should not be granted on the ground of ssurprise.</p>

<p>Appeal from an order of this court, made in proceedings supplementary to execution, appointing a receiver of the property of the judgment debtor, and restraining executors and trustees from disposing of property held by them in trust for the use of the judgment debtor.</p> <p>The facts, so far as material, are stated in the opinion, i"</p>

, The action was brought to recover from the defendant the amount of an assessment paid by the plaintiff upon certain property purchased by the plaintiff from the defendant, upon an alleged agreement by the defendant to refund such'payment to the plaintiff. The facts are stated in the opinion. At the trial, the justice directed the jury to find for the defendant, and judgment for the defendant was entered on the verdict.

This was an action of claim and delivery for goods of the plaintiff, detained by the defendant under a claim of a lien thereon, for board. The facts are stated in the opinion. Upon the trial the justice rendered judgment for the plaintiff. From the judgment the defendant appealed.

The action was brought to recover the price of a scale alleged by the plaintiff to have been sold and delivered by him to the defendants. The facts are stated in the opinion. At the trial the justice rendered judgment for the defendants. From the judgment the plaintiff appealed.

<p>An agreement between an attorney and his client by which the attorney is to receive, as compensation for his services, a certain proportion of any amount that may be recovered, is looked upon in the law with suspicion, it being the duty of courts to protect clients against every attempt, on the part of their attorneys, to gain any undue advantage over them; and, therefore, in an action by an attorney upon such an agreement, there must not only be clear proof of the making of the contract, but its integrity and entire fairness must also be shown; and it is incumbent upon the plaintiff to show affirmatively that the contract was a just, fair and reasonable one.</p> <p>Where, in such a case, an oral agreement is alleged that the attorney was to receive, if he should succeed in obtaining an award for damages from a change of grade in a street, twenty-five per cent, of the amount awarded, it is competent for the plaintiff to show that this was the usual contract in such cases, and on its appearing that a printed contract was generally signed, he may show in what cases exceptions to this general rule were made. But evidence on the part of the plaintiff as to the usual rate of charge in assessment cases is improper; nor should the defendant be permitted to show the amount of bills paid to other lawyers for professional services.</p> <p>Neither is it competent for the defendant, in such an action, to give evidence of the proceedings of the assessors and their mode of ascertaining the damages, in order to show the improbability of the contract alleged; since it was not incumbent upon the attorney to give that information before making the contract. Nor should the defendant be permitted to show that the assessors assessed the damages without reference to any appearance by attorneys.</p> <p>A question to a witness asking his opinion as an expert as to the value of professional services by an attorney, which requires him, in addition to the services specified in the question, to take into consideration any other services that he had heard stated on the trial, is inadmissible.</p> <p>Where, in an action by attorneys for professional services, the defendant claims to have employed another firm of attorneys, and not the plaintiffs, in the matter, the plaintiffs may prove, by a member of such other firm, that that firm make no claim whatever against the defendant for services in that matter.</p> <p>Where a request to charge a proposition of law is made, a statement by the judge that he has already charged it, is equivalent to telling the jury that it is the law ; and where all that could he asked for in the way of instructions on the subject has been stated as the law of the case by the judge during the trial before the jury, the omission to state it in the charge at the close of the trial is not ground for reversal.</p>

• The action was brought in the district court in the city of Uew York for the sixth judicial district, to recover rent alleged to be due under a lease. The defendant in his answer-set up a counter-claim for damages arising from the unhealthy and untenantable condition of the demised premises. The facts are stated in the opinion. The action was removed to this court. At the trial, the jury found a verdict for the defendant for damages.

The action was brought to-recover damages for a personal injury. The defendant having made default upon the trial, a reference was ordered to assess the plaintiif’s damages.

<p>Where, by an assignment of a contract for work which has been partially performed by the assignor, the assignee assumes debts incurred by the assignor in the execution of the contract, to the extent of a specified sum, and no more, and afterwards pays more than that amount of such debts, without paying the whole, the creditors remaining unpaid have no right of action against the assignee. Even a promise by him to pay a specific claim, being without consideration, is not binding upon him.</p>

<p>Where the register of the city of Hew York makes and certifies to an erroneous return to a written requisition for a search in his office, he is guilty of “ misconduct or neglect in office,” within section 549 of the Code of Civil Procedure, and is therefore liable to arrest in an action to recover damages for such erroneous return, although he did not personally make the search or personally certify, and although the search was in fact made by one of his searchers who was designated to make it by the party making the requisition. '■ 1</p> <p>Where a plaintiff has been damnified by a wrongdoer, he must see to it that his loss is not swollen by any act of omission or of commission on his part; but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrongdoer.</p>

<p>Appeal from a judgment of this court entered upon a dismissal of the complaint at the trial.</p> <p>The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff from the negligence of the defendants.. The facts are stated in the opinion. Upon the trial, at the close of the plaintiff’s evidence, the defendants moved to dismiss the complaint on the ground that there was a variance in the proof from what was alleged in the third allegation in the complaint, and the court thereupon dismissed the complaint, and judgment for the defendants was entered on the dismissal. From the judgment the plaintiff appealed.</p>

<p>Appeal from a judgment of this court entered upon the report of a referee.</p> <p>The action was brought to recover damages for a personal injury alleged to be caused by the negligence of the defendants. The facts'are stated in the opinion. Upon trial before a referee, he found for the plaintiff, and upon his report, judgment for the plaintiff was entered. From the judgment the defendants appealed.</p>

<p>A guaranty of the payment of rent under a lease, given during the term created by the lease and at a time when rent which has become due is in arrear, by which the guarantor “ agrees to become security for an agreement of lease, .... whereby should any default be made in the payment of said rent” the guarantor binds himself, his heirs, &c., “to pay any deficiency which may be due,” is a guaranty for the payment of any rent that may thereafter become due and payable under the lease, and not for the payment of rent already due.</p>

<p>Appeal from a judgment of a district court in the city of Hew York, entered upon the dismissal of . a complaint.</p> <p>The action was brought to recover wharfage claimed for goods on a wharf in the city of Hew York. . Upon the trial the justice dismissed the complaint, and judgment was entered for the defendant. From the judgment the plaintiff appealed.</p>

Arread from a judgment of this court entered on the report of a referee. The action'was brought to fprelose _a lien claimedJiy.J;he plaintiffs_upon^eztain_ty.p,e, for printingjtnd otherwork done hyAheiSLfgr._thedefendants, the owners .of the type. The plaintiffs_were jirinters, and had for 'many years printed for the defendant,. Ahe ..McKillon. .&.

The action was brought upon certain promissory notes against the defendant James W. Hart as indorser, and a warrant of attachment against his property was obtained in the action by the plaintiff.

<p>The allowance of days of grace for payment of a promissory note is an indulgence established by commercial usage for the benefit of the debtor alone; and a tender by him of the amount due upon his note, including interest for the days of grace, is a good tender, although made at the time fixed by the note for payment, and before the expiration of the days of grace.</p> <p>Where payment of a promissory note payable to a firm is tendered by a check payable to a firm of which the payees are members, and which had been formed by a change in their previous firm since the making of the note, and the tender is refused without objection to the manner in which the check is drawn, the refusal being put on other grounds, that objection is waived.</p> <p>A tender to one of two members of a firm entitled to payment is sufficient.</p> <p>When securities are specifically pledged to a broker or banker to secure the payment of a particular loan or debt, he has no lien upon such securities for a general balance, or for the payment of any other claim.</p> <p>Where a tender of payment of a debt and a demand for bonds pledged to secure it are duly made, and refused, and an action is thereupon brought by the debtor against the creditors for a conversion of the bonds, the tender is not waived by the plaintiff using the money and failing to bring it into court, as the amount due and tendered is necessarily to be deducted and allowed to the defendants in fixing the amount of damages.</p> <p>In an action for the conversion of certain bonds, the answer set up, with ether defenses, the non-joinder as plaintiff of one G., alleged tobe a part-owner of the bonds. There had been previous dealings between the parties in which the defendants had acted as brokers in purchasing and carrying various securities, among which were the bonds in.question, either for the plaintiff or for G. upon an individual account or an account kept by them for G. in the plaintiff’s name, on which account the plaintiff had advanced money, but G. was to have the profits. It appeared, however, that the transaction out of which the action arose was distinct and independent; the written evidence on the part of the plaintiff tended to show that the bonds alleged to have been converted had been pledged to the defendants in the name of the plaintiff alone, to secure payment of a note of which he was the maker; he testified that he was and had remained the owner of the bonds, that they were bought for him by G., through the defendants as brokers, that he paid for them with his own money, and that G. was to have some of the profits, if any, and to share in the losses; while G. testified, that, in the purchase of the bonds, he acted as the plaintiff's agent, that the transaction with the defendants in the purchase and carrying of these bonds was by him personally, representing the plaintiff, and that the understanding in regard to them between the plaintiff and himself was that he should bear his proportion of the losses and profits also. Reid, that to dismiss the complaint upon this evidence for non-joinder of G. as plaintiff was error, and that the question whether he was or was not a joint owner of the bonds was not for the court, but should be submitted to the jury.</p>

<p>Objections to the validity of a sale of a bankrupt’s real estate by his assignee in bankruptcy, on the grounds that the order of sale was signed by the judge of the bankruptcy court, and was therefore not the order. of the court; that it did not designate the time and place of sale; that the notice of sale was not published as required by the bankrupt law, and did not describe the premises with sufficient minuteness; and that the whole of the premises was sold, when, if proper notice had been given, a small portion would have brought sufficient to satisfy all claims proved in the bankruptcy proceedings, will not avail to defeat the title of the purchaser at such sale, in an action against those claiming under him, brought to recover the possession of the premises, by a stranger to the proceedings in bankruptcy, in which action it appears that the bankruptcy court had jurisdiction of those proceedings, and had power to order the sale, and that court, by a subsequent order, duly confirmed all the proceedings of the assignee under the order of sale.</p> <p>Under the provisions of the United States Bankrupt Act of 1841 (5 U. S. Stat. at L. 448, § 15),—making deeds of lands of bankrupts sold and conveyed by their assignees in bankruptcy, when containing certain recitals, supported by specified proofs of the bankruptcy and of the assignment as required by the act, valid and effectual to pass the title of the bankrupt, —if the jurisdictional facts are proved, a deed in conformity to the statute is conclusive. The bankruptcy court having acquired complete jurisdiction, subsequent proceedings for the sale of lands of the bankrupt, although erroneous, are not void, and may be corrected in the proceedings themselves ; and, if confirmed by a subsequent adjudication, cannot be collaterally questioned.</p> <p>Fraud being, under the law of this state, a mixed question of law and fact, an answer, in order to raise an issue of fraud, must allege fraud as a fact.</p>

Appeal 'from an order of the general term of the marine court of the city of New York, reversing a judgment of that co art entered upon the report of a referee, and granting a new trial. The action was brought upon a judgment recovered by the plaintiffs against a corporation of which the defendant was a stockholder, and the capital stock of which had not been fully paid in. The facts are stated in the opinions.

The action was brought upon a promissory note made by the defendant Francis X. Schoonmaker, and indorsed by the defendant Henry Murray. The facts are stated in the opinion. The defendant, Schoonmaker, did not answer the complaint.

<p>Under the Marine Court Act of 1873 (L. 1873, c. 639, § 6),—under which an attachment against the property of a defendant, in an action in that court, not residing in the city of New York, may issue “ in the manner and with like effect as allowed and prescribed by the provisional remedy of the Code of Procedure”—and the Act of 1874 (L. 1874, c. 545, § 3),— . authorizing that court to order service of the summons in such cases, by publication, “as provided in subdivision 5 of section 135 of the Code of Procedure,”—an attachment was obtained in an action in the marine court against the property of the defendants, on the ground that they were not residents of the city of New York, and an order for service of the summons by publication was also made. The summons was never, in fact, published. A copy of the summons and complaint was, however, served on one of the defendants personally, at a place within the state, out of the city of New York, but before the passage of the act of 1875 (L. 1875, c. 479, § 41), which made personal service of a copy of the summons and complaint under such circumstances, oht of the city of New York, equivalent to the publication and deposit in the post-office required by the section of the Code above referred to. Held, that the like provision of that section of the Code,—that when publication is ordered, personal service of a copy of the summons and complaint, out of the state, is equivalent to publication and deposit in the post-office,— could not be construed, when applied to the marine court, as making such personal service, out of the jurisdiction of that court, although within the state, equivalent to service by publication, &c. ; and consequently,- no valid service of the summons having been made within thirty days, the attachment did not bind the property of the defendants after that time had elapsed'.</p>

<p>Appeal from an order of this court, directing, among other things, that the appellants, two of the defendants in the action, deliver to a receiver who had been appointed in the action certain property of which they had dispossessed the receiver, and that the fees, allowances and dues of the receiver be paid out of such property.</p> <p>Pauline Hopfensack, plaintiff, and William Hopfensack, one of the defendants, had been copartners. She claimed that he fraudulently conveyed the copartnership stock to the other two defendants, Ernst Hopfensack and Louis W. Hraba, who ■are the appellants.</p> <p>In this action for a dissolution and accounting, and for the appointment of a receiver, the appellants were joined as defendants in order to dispose of their title or claim to the property so conveyed.</p> <p>A receiver of that copartnership property was appointed pendente Hie on plaintiff’s motion, and he took the property in dispute from these appellants at their place of business.</p> <p>The appellants petitioned the court to be examined pro m~ teresse su-o, and to have the property restored.</p> <p>Their application was denied and the issues in the action were referred. The referee determined that the sale of the co-partnership stock to the, appellants was valid, and found on the other issues in favor of defendants, and judgment was accordingly entered.</p> <p>Appellants, thereupon, again petitioned the court that the receiver deliver the property to them, and the court ordered a reference to pass the receiver’s accounts. Appellants, pending the reference, took the property from the receiver’s possession. After the referee reported (on September 19th, 1879), on the accounts-of the receiver (allowing him $353.23 commis.sions and expenses), the latter applied for an attachment against the appellants for their act in taking the property from his possession. As appellants denied that the property seized by the receiver was that of which he was appointed custodian, it was again referred to ascertain the facts. The referee reported, on February 18th, 1880, that all the property taken by the receiver was the property which it was intended by said orders he should take possession of.</p>

The action was brought to recover from the defendant, as an innkeeper, the value of an overcoat belonging to the plaintiff, alleged to have been lost while in the defendant’s restaurant. The facts are stated in the opinion. The justice in the district court found for the plaintiff for a sum exceeding $50, and thereupon allowed him $12 extra costs in addition to his disbursements (L. 1857, c. 334, § 70, p. 725). From the judgment the defendant appealed to this court.

The action was brought to recover damages from, a sale of spoiled and unmerchantable veal by defendants, commission merchants in West Washington Market, to plaintiff, a retail meat dealer in One hundred and forty-eighth street and Third avenue. The calves, ten in number, were purchased on Friday, May 7th, 1880, at about 8 o’clock, a. m., at West Washington Market, by plaintiff from defendants, at seven cents a pound.

The order awarded to the petitioner the delivery of the possession of the property, and $2.25 allowed him as marshal’s fees, but no costs.

The action was brought to recover damages for an alleged conversion of goods of the plaintiff. The defendant, Ira M. Harrison, had recovered a judgment in an action in the district court in the city of New York for the third judicial district, against the plaintiff and others, the defendants in that action.

The action was brought to recover from a benevolent association the amount of benefits claimed to be due to the plaintiff, as administratrix of a deceased member of the association, upon the death of her intestate. The defense was that the deceased was not a member of the association at the time of his death, but had been expelled for non-payment of dues.

The application was made by the assignee, upon proof of publication of advertisement of a notice to creditors to present their claims, pursuant to an order duly made, but without proof that copies of such notice or advertisement had been mailed to the creditors whose names appeared on the books of the assignor, as required by Rule 31 of the Rules of this court with Regard to Insolvent Assignments.

Monos to amend a remittitur to the marine court of the city of New York upon reversal of a judgment of the general term of that court on appeal to this court. The decision upon the appeal is reported ante, p. 256. A remittitur conforming to that decision having been sent to the marine court, the appellant moved to amend the remittitur.

<p>Appeax from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>In February, 1877, the plaintiff bought of the defendants, and the defendants agreed to deliver to the plaintiff’s order, properly boxed and packed for shipment to the city of San Francisco in the state of California, four plate glass mirrors. At the time of the purchase of the mirrors, the defendants for a consideration guaranteed the safe arrival without injury of the mirrors at the city of San Francisco. The merchandise was transported by rail to the city of San Francisco, and from the railroad depot was carried some two miles through the city to a barn of a man by the name of Crocker to whom the mirrors were delivered. Upon the second day after the arrival of the mirrors at Crocker’s barn they were opened and it was found they had been injured in transportation. An action having been brought in this court upon the contract of insurance, the jury found for the plaintiff. A motion by the defendants for a new trial was denied, and judgment for the plaintiff was entered on the verdict. From the judgment and the order denying the motion for a new trial, the defendants appealed.</p> <p>There was no evidence to sustain the verdict. It is not sufficient to show a state of facts as consistent with the occurrence of the accident or damage after as before the termination of the risk (Canfield v. Baltimore, &c. R. R. Co., 75 N. Y. 144). There must not only be a possibility that the injury complained of occurred as alleged, but the circumstances must lead to this result, not only as a fair inference, but as a necessary conclusion. Testimony capable of. two interpretations will not justify the verdict in favor of a complainant (Pollock v. Pollock, 71 N. Y. 137).</p> <p>It was exclusively for the jury to determine as to where and how the damage occurred (Harris v. Panama R. R. Co., 3 Bosw. 14; Starbird v. Barrows, 2 Hun, 108; Sturm v. Williams, 38 Super. Ct. [6 Jones & S.] 325).</p>

The action was brought to recover damages, for injuries to an infant son of the plaintiff, alleged to have been caused by the defendants, their agents and servants.

<p>A complaint in an action by the holders of a policy of life insurance against the insurance company, which alleges that the action is brought, “as well in behalf of these plaintiffs as of all such other policy-holders similarly situated, who may choose to come in,” &c., is necessarily limited to equitable relief.</p> <p>Where from such a complaint it appears that, by the terms of the plaintiffs’ policy, it has been forfeited by failure to pay the premiums, allegations that, at the time of such failure to pay, the plaintiffs had been informed of certain wrongful acts of the company, its officers and managers, stated in detail in the complaint as violations of the company’s charter, and that as a result of such wrongful acts the company had then become insolvent and it had become unsafe for the plaintiffs to pay further premiums, do not show a sufficient excuse for a refusal to pay premiums while the company continued to do its ordinary business in the ordinary way and was ready to receive premiums.</p> <p>Provisions of a “participating policy” of life insurance, under which the insured is entitled to share, with others holding similar policies, in the surplus profits of the insurance company after payment of dividends not exceeding a fixed rate upon the stock of the company, do not create a trust relation between the policy-holder and the company.</p>

On the 24th of July, 1879, John H. Kenney and wife, of Washington city, made, executed and delivered a deed of trust to Eugene H. Hunger of the city, county and state of New York.

In April, 1880, the plaintiffs in this action at their store gave to a salesman of the defendant, who was a commission merchant, an order in the following language: “New York, 4 | 8, 1880. “ Messrs.

. Appeal from a judgment of the general term of the marine court of the city of New York, affirming a judgment of that court entered on the verdict of a jury. The action was bought to recover the balance of a deposit made by the plaintiff in the defendant bank, amounting to §165. The original deposit of $170 was made July 16, 1878, when the plaintiff received a bank-book, and left his signature.

<p>Appeal from a judgment of this court, entered upon the ' dismissal of a complaint at the trial.</p> <p>The plaintiff’s intestate, on November 11, 1873, was appointed record clerk in the court of special sessions, by a resolution of the board of police justices. The same board, by resolution of June 30, 1874, declared the office vacant, and the intestate’s services to be no longer required. The plaintiff gave in evidence the pay-rolls of the record clerk of the city of New York, for the months of May and June, 1874,. whereon appeared intestate’s name opposite the monthly salary. The warrants for the payment of these sums were also produced, attached to the rolls. The payment for these months, and up to January 1, 1875, was demanded, and refused, and this action brought therefor. The ¿aim, subsequent to June 30, was based upon the averment of illegal removal by the resolution of June 30, 1874, and offer and readiness to perform the duties of the position. The defense was that the board of police justices had not the power to make the original appointment. At the trial the complaint was dismissed, and judgment was entered for the defendants. From the judgment the plaintiff appealed.</p>

<p>Appeal from an order of the court refusing to confirm the report of a referee, upon an application to modify a decree of divorce in respect of the allowance made to the wife. ■</p> <p>On the 21st of July, 1863, a judgment and decree of absolute divorce were made herein between the parties to this action, and it was further adjudicated that the plaintiff, Mary F. Kerr, have the care, custody and education of the children of the parties—to wit: William J. Kerr, Jr., Josephine Kerr and Winifred Kerr—until the further order of the court; and it was further adjudicated that the defendant, William J. Kerr, pay to the plaintiff, Mary F. Kerr, the sum of §1,800 per annum, payable in monthly installments of §150 each, commencing on the 1st day of August, 1863, for the support and maintenance of the plaintiff, and for the support, maintenance and education of said children of said marriage. William J. Kerr, Jr., was born in the year 1819; Josephine Kerr, in the year 1851, and Winifred Kerr in the year 1856. This allowance tho defendant has always paid to the plaintiff, and, in addition thereto, the defendant has paid and expended large sums of money for the support and education of his children.</p> <p>At the time of the present application, none of the said children were minors. , "William J. Kerr was a civil engineer by profession, and wholly supported himself.</p> <p>In February, 1876, the plaintiff received property from the estate of her mother, which yields an annual income of about $436.</p> <p>Upon these facts the defendant applied to this court for an order modifying the provision for alimony. An order of reference was granted to take proofs and to report such proofs to the court, with the opinion of the referee thereon, and the referee thereupon reported that the sum of $1,200 would be a reasonable allowance to make to the plaintiff for the support of herself and the said children. Upon the coming in of this report, a motion was made to confirm the referee’s report, and this motion was denied, upon the ground that the court had no power to alter the amount of the allowance contained in the decree of divorce, and founded its opinion upon the decision of the court of appeals in Karrvp v. Karrvp (59 N. Y. 212)» From the order denying the confirmation of the report, the defendant appealed.</p> <p>The court has power to modify the final decree and judgment, so far as the allowance of $1,800 a year is concerned (Rev. Stat. 6th ed. vol. 3, 159; Forest v. Forest, 3 Abb. Pr. 154; Miller v. Miller, 6 Johns. Ch. 91; Holmes v. Holmes, 4 Barb. 295; Lawrence v. Lawrence, 3 Paige, 267; Halsted v. Halsted, 5 Duer, 659; 2 Daniell Chanc. Pr. Perkins’ ed. 1042). The case of Kamp v. Kamp (59 N. Y. 212) differs from the present case, as no provision for alimony was made in the decree, while in this case an allowance was1" made, not only for the wife, but also for the three children of the marriage. The difficulty of determining how much the court intended as an allowance to the wife, and how much as provision to the children, not being one of jurisdiction, is not insuperable.</p> <p>The court has no power to grant the application. The courts of this state have not the general powers in divorce cases which were exercised by the ecclesiastical courts in England; their powers are limited to those expressly conferred by the statute (Burtis v. Burtis, Hopk. 557; Perry v. Perry, 2 Paige, 501). The statute provides for only one exercise of the power of the court in making the allowance; when made, it is final, and continues during the life of the wife (2 R. S. 146, § 58 ; Cook v. Cook, 1 Barb. Oh. 639). No reported case can be found in this state where the courts have exercised such a power in such a case; while the decisions which have been made on the subject are, by analogy, conclusive against the exercise of such a power (Wood v. Wood, 7 Lans. 204; Shepherd v. Shepherd, 1 Hun, 240, 58 N. Y. 644; Kamp v. Kamp, 59 N. Y. 212; Park v. Park, 18 Hun, 466; affirmed in court of appeals, 9 Week. Dig. 391). The decisions of the highest courts of other states, where the statutes cn the subject are similar to our own, confirm this view (Smith v. Smith, 45 Ala. 264; Mitchell v. Mitchell, 20 Kans. 665; Bacon v. Bacon, 53 Wis. 197; Semrow v. Semrow, 23 Minn. 214). In England, where the courts have such a power, they have refused to exercise it in favor of the husband, where the wife had, after judgment, received a considerable accession to her income on the death of her father (Saunders v. Saunders, 1 Swab. & Tr. 72), and also where the husband had been guilty of unnecessary and willful extravagance, and had received a large sum, the disposition of which he could not account for (Shirley v. Wardrop, 1 Swab. & Tr. 317). In this case, even if the court had the power to grant the application, no merits are shown for its exercise.</p>

<p>Appeal from a judgment of this court, entered upon a dismissal of the complaint at the trial.</p> <p>The plaintiff commenced, in April, 1877, this action. In his complaint he alleges the recovery of a judgment in his favor against one John O’Grady, in October, 1874, the issuing of an execution against the property of O’Grady, and its return unsatisfied; the issuing of an execution in June, 1876, against the person of said O’Grady; his arrest by the defendant as sheriff, prior to the 1st of January, 1877; the expiration of the term of office of the defendant on the 1st of January, 1877; the election of Bernard Reilly as sheriff, in place of the defendant; the service upon the defendant, on the 2d of January, 1877, of a certificate of the clerk of the city and county of New York, under his official seal, certifying that the said Bernard Reilly had qualified as such new sheriff, and given the security as required by law; the failure of the defendant within ten days after the service on him of said certificate to deliver to his 'successor, the new sheriff, the said John O’Grady, who then remained in custody of the said defendant, confined within the liberties of the jail of the city and county of New York.</p> <p>The answer of the defendant put in issue all these allegations of the complaint, with the exception of admitting the arrest of O’Grady. The evidence in the case showed the recovery of the judgment, the issuance of an execution against the property, the issuance of an execution against the person, the arrest of O’Grady, and that the defendant turned over the jail and the prisoners actually confined within its walls to Mr. Reilly, the incoming sheriff, and that O’Grady was never transferred by the defendant to Reilly as sheriff.</p> <p>Upon the trial of this action the complaint was dismissed, and judgment was thereupon entered for the defendant. From the judgment the plaintiff appealed.</p>

The action was brought to recover the price of certain machines alleged to have been manufactured and delivered by the plaintiffs to the defendants under a special contract.

The action was brought to recover possession of certain real estate situated in the city of New York.

The action was commenced by a “ long summons,” and a warrant of attachment was granted against the property of the defendant. Before interposing an answer, the defendant objected -that it appeared upon the plaintiff’s papers that the defendant was a non-resident of the city of New York, and, that fact being conceded, the justice vacated the attachment and dismissed the action. From this decision the plaintiff appealed to this court.

<p>Application for allowances upon final accounting by an executor, made to this court, exercising the powers and jurisdiction of the surrogate’s court of the County of New if ork, under the provisions of section 2486 of the Code of Civil Procedure.</p> <p>The grounds of the application are stated in the opinion.</p>