text:
    LOUIS SANDERS, Respondent, v. FREDERICK SIEBERT, Appellant.

      Arrest.—Allegations of false representations when sufficient to sustain orders. — Complaint, when may he treated as affidavit though irregularly verified.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal from an order denying a motion to vacate an order of arrest, which motion was made upon the papers upon which the order was granted.
    The papers show that the defendant obtained from the plaintiff certain goods by falsely and fraudulently representing that two orders which he presented to the plaintiff and which purported to have been signed by one Westervelt, were genuine, although the defendant had himself without the knowledge or consent of said Westervelt signed said Westervelt’s name to said order, with the intent to deceive and defraud the plaintiff, and that the plaintiff was deceived and defrauded thereby.
    The court at General Term said : “ This established a primafacie case sufficient to warrant the issuing of an order of arrest.
    “ The complaint was verified as an affidavit and also with the usual verification ‘ except as to those matters,’ etc., and no allegation material to the charge of fraud and deceit was stated upon information and belief. The complaint may be regarded as an affidavit for the purpose of procuring the order of arrest (Palmer v. Hussey, 59 JV. Y. 647).”

      Herman Stiffel, for appellant.

      Simon H. Stern, for respondent.
   Opinion by Truax, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred.

Order appealed from affirmed with $10 costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CYRUS BUTLER, Respondent, v. JOHN SMALLEY, et al., Appellants.

      Manufacturing corporations—liability of trustees for failure to file report and for filing false report—nature of—may be enforced in same action.— Construction of statute.—Intent.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal by defendant from judgment in favor of plaintiff entered on report of referee.
    Action to recover $1,705, and interest, the amount of an indebtedness to the plaintiff of the Lathrop Anti-Prictionate Company, a manufacturing corporation formed under the act of 1848, upon the grounds: 1. That the defendants as trustees of said company failed to file the annual report as required by the 12th section of the said act; 2. That the defendants as officers of the said company made and signed a report false in a material representation, to wit, as to the amount of the existing debts of the company.
    The case was-referred to Israel Minor, Jr., who wrote as follows:
    “ The two causes, one for failing to file an annual report in compliance with § 12 of the act of February 17,1848, and the other for making a false report in violation of § 15 of that act, are not necessarily inconsistent and are properly joined in one complaint (Bonnell v. Wheeler, 1 Hun, 332). It is not necessary, in order to render the defendants liable under § 12 of the act, that failure to make and publish should concur with failure to file the annual report. The failure to file is of itself a sufficient violation of the act to subject them to the penalty (Gildersleeve v. Dixon, 6 Daly,
      76). The construction given to § 12 of the act by the court of appeals in Cameron v. Seaman (69 N. T. 396), is that the twenty days mentioned in the statute, applies only to the act of making, that is, preparing, signing and verifying the report, for which twenty days from the first day of January are allowed, and not to the acts of publishing or filing; that these acts are necessarily subsequent to that of making; that the time for publishing and filing are not expressly fixed, but that in the absence of an express provision on the subject, the law implies that the filing and publishing must be within a reasonable time after the twenty days, and that this requirement, in view of the object of the statute, can only be satisfied by prompt performance and diligent action on the part of the trustees. In the case last cited, the report was prepared, signed and verified January 20, and on the same day mailed to the county clerk, who filed it on the 21st, and the 21st, the first day after the expiration of the twenty days the trustees sent it to a newspaper for publication, which published it on the 24th. This was held a compliance with the statute and the trustees were exonerated from liability.
    “In the present case, though the report was made and published within the twenty days, no attempt was made to place it on file until February 13, a lapse of twenty-four days after the expiration of the twenty days allowed by statute for making the report. FTo obstacle to filing intervened, nor is any reasonable excuse offered for the delay. This certainly shows neither the prompt performance nor the diligent action on the part of the trustees required by the statute. There is here no opportunity for making such a construction as to relieve the trustees. If the delay of twenty-four days in filing is excusable, why not an indefinite period ; why not, indeed, an entire failure to file ?
    “It is urged by defendants’ counsel that the neglect to file must be shown to be fraudulent; that malafides on the part of the trustees must be shown. In some of the states, the legislatures have made the liability of trustees in such cases, dependent upon their intention. This is not, how-^ ever, an element of our statute, and the trustees cannot be excused by reason of failure to prove an intentional evasion or violation of the statute.”
    The referee upon consideration of the testimony held defendants liable under § 15 of the act.
    The following memorandum was delivered at general term:

      Winsor & Marsh, for appellants.

      Frank A. Irish, for respondent.
   Per Curiam.

—“Judgment affirmed with costs on report of referee.”


text:
    HENRY E. P. ADAMSON, et al., Respondents, v. JAMES W. ELWELL, Apellant.

      Agency—undisclosed principal—execution of instrument by agent, when sufficient in form.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal by the defendant, from a judgment entered upon the report of Hon. Joseph S. Bosworth, referee to hear and determine.
    . The action was brought by the plaintiffs, as owners of the steamship “Egbert ” upon a charter-party for a voyage from New York to Havre, France.
    The principal question litigated on the trial was the validity of the charter-party as against the defendants. It was executed on behalf of defendants, by their agents, Charles T. Russell & Co. in Liverpool, while the vessel was lying in that port, in pursuance of cable authority from the defendants, which authority is referred to in the signature to the instrument.
    The referee wrote as follows : “ Cobb v. Knapp. (71 N. Y. 348), without reference to other authorities, is conclusive against the defendants, that not having disclosed their principles (if they had any), they are personally liable, if the charter party as executed, was authorized by the cablegram, and if it is executed in such form as to make the defendants parties to it as contracting parties. ... I think the charter is in form one that binds the defendants as principals. It is signed,
    “Adamson & Short, by their agents, Stoddart Bros.
    “By cable authority from J. W. Elwell & Co., of New York, C. T. Russell & Co., agents.”
    “This should be read as if the ‘cable authority’ were-annexed to the charter party. It would thus unmistakably appear that the defendants were included as the principals of the one part, who executed it by C. T. Russell & Co., as their agents. The instrument commences thus:
    ‘ Liverpool, 29th Aug., 1877. It is this day mutually agreed, between Messrs. Adamson & Short, procuring of the good ship or vessel called the “Egbert,” ... of the one part, and J. W. Elwell & Co., of New York, and C. T. Russell & Co., of Liverpool, agents, merchants and charterers, of the other part.’ Assuming that this instrument should be read as if the character ‘&’ was not written between the names of the defendants and the names of C. T. Russell & Co., then a very natural construction of it would be that id states ‘ J. W. Elwell &Co.’ to be the party ‘ of the other part,’ and C. T. Russell & Co. to be acting as their agents. If it is to be read with the character. ‘ & ’ in it, then it describes the party of the second or ‘ other part ’ to be J. W. Elwell & Go., and C. T. Russell & Co., agents. Even thus read, it is not a forced construction to regard the word ‘ agents ’ as applying only to C. T. Russell & Co. They signed as ‘agents’ of J. W. Elwell & Co., by virtue of authority to do so, conferred on them by cablegram from J. W. Elwell & Co. The words ’■merchant ’ and ‘ charterer1 are printed on the blank form here used. The blank form thus used being filled up and leaving these printed words in it, would describe any charterer as ‘ merchant ’ and ‘ charterer,’ whatever his occupation might be. If it can be held that C. T. Russell & Co-have so executed the charter party as to make them joint principals with the defendants as charterers, the objection appears on the face of the complaint, as a copy of the instrument is made part of it. The omission to demur to the complaint waives such a defect of parties. Code, §§ 488 and 498, 499.”

      Benedict Taft & Benedict, for appellants.

      James K. Hill, Wing & Shoudy, for respondents.
   Per Curiam.

—Judgment affirmed, with costs, upon opinion of referee.


text:
    THOMAS MADDOCK, Respondent, v. LIVINGSTON B. VAN KLEECK, et al., Appellants.

      Appeal from, judgment only does not bring up decision of special term, sustaining demurrer to answer.— Counterclaim—rule as to.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal from a judgment entered upon an order sustaining a demurrer to the answer. The order gave the defendants leave to amend within twenty days on payment of costs. The defendants did not avail themselves of this, and plaintiff entered judgment.sustaining the demurrer and for the amount demanded in this complaint with costs. The notice of appeal does not specify that the order sustaining the demurrer was also appealed from.
    The court at General Term said, “ The appeal from the final judgment does not bring up for review the decision of the court below made on the demurrer (Boreel v. Lawton, 47 Super. Qt. 558, affirmed in court of appeals). As the judgment entered conforms to the order directing its entry, and as the notice of appeal does not ask for a review of that order the judgment must be affirmed on the merits ; assuming that the defendants have a right of action it does not arise out of the contract or transaction set forth in the complaint at the foundation of the plaintiff’s claim, is not connected with the subject of the action and is not a cause of action on contract. It could not, therefore, be the subject of a counter-claim (Boreel v. Lawton, 15 Week. Dig. 429).”

      William C. De Witt, and B. F. Tracy, for appellants.

      Jennings & Russell, for respondent.
   Opinion Per Curiam.

Judgment affirmed, with costs.


text:
    JOHN M. CANDA, et al., Respondents, v. JACOB WICK, Jr., Appellant.

      Damages.—Breach of contract to accept goods.—Evidence that plaintiff received^ for the unaccepted goods a higher price from a third party, when not admissible.

    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal by defendant from judgment in favor of plaintiff, entered upon report of referee.
    The second cause of action set forth in the complaint is against the defendant for a breach of contract arising out of the failure of the defendant to receive a quantity of brick duly tendered pursuant to a sale and purchase thereof.
    The court at General Term, said : .“The counsel argues that the referee erroneously excluded questions by defendant calculated to call for proof that the plaintiff in fact sold the brick, which he tendered under defendant’s contract, at a higher price than was provided to be paid by that contract, so that there was no loss. The plaintiff of whom as a witness these questions had been asked, did not testify that he sold these bricks after their non-acceptance by the defendant, but that he had made deliveries of them under contracts already made with other parties. The defendant was not permitted to show what prices he would receive under these contracts. This was correct, for admitting that the prices were higher in those contracts-than in this, the plaintiff would be damaged by the breach of this, inasmuch as they would be entitled to the benefits of the performance of all the contracts. There would be indeed a question as to whether the plaintiff could have performed the other contracts, unless they used the bricks they were to deliver under the present contract. This was not presented upon the trial, to the referee, or in any way brought to the attention of the plaintiff.”

      Lindsay & McAdam, for appellant.

      Cozans & Shepard, for respondents.
   Opinion by Sedgwick, Ch. J.; O’Gorman and Ingraham, JJ., concurred.

Judgment affirmed, with costs.


text:
    THE NASSAU BANK, Appellant, v. JOHN J. JONES, et al., Ex’rs. &c., Respondents.

      Ultra vires.—Contract by director to make in Ms own name investment beyond power of bank—when not enforceable.

    Before O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal by plaintiff from a judgment at Special Term, dismissing the complaint.
    The action was to hold the executors of David Jones, deceased, liable for profits alleged to have occurred from an investment in bonds of a certain railroad company, for which-said Jones agreed with the officers of the plaintiff to-subscribe, in his own name, but as agent of the Bank, and for its benefit.

      The trial judge held that the transaction was not in any aspect a banking loan or within legitimate banking powers, as specified in chapter 360 Laws of 1838, page 249. Appellants claimed that the objection that the subscription for the bonds of said railway company was beyond the powers of the bank, was not open to Jones or Ms executors.
    No money was paid out by plaintiff and no loss was incurred.
    The court at General Term distinguished Pratt v. Short (79 N. Y. 437), in which a deposit and savings institution had discounted a note payable to the order of defendant, the corporation being authorized by law to loan its capital and funds, but not on the security of commercial paper, and it was held that, although the security taken on the discount was void, the money loaned could be recovered.
    The court at General Term, further, said: “This, however, is not the position of the case at bar. Here, the effort . of the plaintiff is to enforce an illegal contract, not to recover money paid under it, which the borrower is bound in equity to repay. There is no analogy between the cases.”

      Martin & Smith, for appellant.

      Martin & Keogh, for respondents.
   Opinion by O’Gorman, J.; Ingraham, J., concurred in result.

Judgment affirmed, with costs.


text:
    JULIET B. LOCKWOOD, Appellant v. WILLIAM M. HOUSE, Respondent.

      Waiver—statement in sworn proof claim in bankruptcy that'claim is not secured, is waiver of the security, —e.g., a deed—only as to so much of indebtedness as is mentioned in claim.—Privileged communication—counsel who draws proof claim in bankruptcy cannot be compelled to testify as to it—•-waiver of privilege.

    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal from a judgment entered on report of referee.
    Action to recover possession of a deed of certain real property, which deed was claimed to have been delivered by plaintiff to defendant for safe keeping.
    The property in question was owned by the husband of the plaintiff and was by him and plaintiff conveyed to the defendant House, by a deed, the consideration being therein stated as one dollar.
    Subsequently a deed was signed and acknowledged by the defendant House and wife which purported to convey to the plaintiff the same property for the same consideration, and the action is brought to recover possession of thi§ deed as executed. It appeared that said deed had been executed but never delivered. And that the property in question was conveyed by plaintiff and her husband to defendant as security for certain moneys'owing by plaintiff’s husband to defendant or to his firm, and’ which were -still . unpaid.
    Plaintiff claimed that because defendant proved his claim against the estate of plaintiff’s husband in bankruptcy, and in the proof of debt which is verified by defendant, it ’ was stated that he had no security; defendant is estopped by that proof of debt from claiming that he holds this property as security for any debt due him.
    The court at General Term, said : “ The answer to that position is that the proof of debt is for one note of $500 , only and refers only to that note. The evidence shows that Lockwood (plaintiff’s husband) was indebted to defendant in a large sum amounting to several thousand dollars, besides the note of $500, which was proved a debt in the,bankruptcy proceedings. If defendant was willing to waive his security for that portion of his claim he had a right to do so, and that would not be an abandonment of his security for the residue of the amount due to defendant or to his firm. Judgment should therefore be affirmed unless there was error in the reception or rejection of evidence. The only exceptions insisted on by plaintiff’s counsel on the argument was to the exclusion of the testimony of Mr. Fay, who was the attorney for the defendant in the proceedings in bankruptcy. The witness was asked to testify as to a conversation between himself and defendant, when defendant instructed the witness to prepare the proof of debt in the bankruptcy proceedings. The witness was allowed to answer the questions as to what was said on the subject of. security, but was not allowed to testify as to the remainder of the conversation that occurred, on the ground that the communication was a privileged communication from a client to his attorney. I do not think that the evidence was competent, and it was properly excluded (Root v. Wright, 84 N. Y. 72).
    “ The appellant insists, however, that as the defendant had testified at to what took place at the interview referred to, when he was examined as a witness, he thereby waived the privilege, and plaintiff should have been allowed to prove what happened at that time, but an examination of the testimony of the defendant will show that the account given by the defendant of the interview in question was in response to questions asked him by the plaintiff on cross-examination, and plaintiff made him for that purpose his witness.”

      J. H. Parsons and T. F. Sanxay, for appellant.

      N. Quackenbos and A. Cardozo, for respondent.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred.

Judgment affirmed, with costs.


text:
    MARY C. RANK, Respondent, v. AUGUSTUS H. GROTE, et al., Impleaded, Appellants.

      Pleading—duplication of cause of action in ejectment by stating two sources of title—when not objectionable.—Indefiniteness and redundancy, rule as to. ■

    Before, Sedgwick, Ch. J., and Ingraham, J.

      Decided May 16, 1883.
    Appeal by defendant from order denying his motion to strike out portion of the complaint as irrelevant, other portions as redundant, or that the same be made more definite and certain, or that the plaintiff be compelled to elect which cause of action he will prosecute.
    The action was in the nature'of ejectment. As a first cause of action plaintiff stated her title to be that of an heir at law of the former owner. As a second cause of action, she states her title to be that of devisee of the former owner. The statements in other respects, as to the cause of action, are' similar, and are sufficient in' such an action. The motion was to strike out, as irrelevant or redundant, the statement of the sources of title, and to compel the plaintiff make a statement of a single cause of action.
    The court at General Term, said: “The appellant is not aggrieved by the order below, for his preparation for trial would necessarily be the same, whether the amendments demanded were or were not made. He, if the superfluous matter were stricken out, would be forced to be prepared for any title the plaintiff might rest on, as heir or as devisee. The duplication of the causes of action does not lead to confusion or obscurity or additional labor.
    “ The order must be affirmed, but, as the pleading in. the complaint is unusual- and naturally led to the motion,; without costs.”

      G. W. Cotterill, for appellants.

      Redfield, Hill & Lydecker, for respondent.
   Opinion Per Curiam.

Order affirmed, without costs..


text:
    NEIL HARDEN v. THE NEW YORK CENTRAL & HUDSON R. R. R. Co.

      Negligence.—Duty to public of railroad company occupying pier with derated platform for cars, etc., without guards or lights. —Sespectire liabilities of railroad company and consignee, using pier for unloading cargo, for injuries to employee of consignee falling from such platform.—Contributory negligence of such employee.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Motion by defendants for a new trial upon exceptions ordered to be heard in the first instance at general term ; verdict directed for plaintiff.
    The action was for damages, from injury to plaintiff alleged to have been caused by defendant’s negligence.
    The defendants were the occupants of a pier. They had placed their tracks upon it; on either side of the tracks was a platform about three and one half feet high. The whole was used for the loading of freight upon defendants’ cars. The plaintiff had been working at the river end of the pier. After dark he finished his work and proceeded on his way out upon one of the platforms. It was dark, and meeting a pile of iron, he turned toward the edge of the platform, thinking he would find it, by touching cars that he supposed to be there. There were no cars, and he walked off the platform, and was injured by falling to the ground.
    The court at General Term, said: “It seems clear that there was no proof of negligence on the part of the •defendants in the way they constructed or maintained the platform. If the defendants had the legal right, as it is assumed they had, to use the dock as a place where their ■cars might be unloaded and loaded, it is to be said that there was no proof that the platform, as it was, was not a .necessary means of doing their business. So far as the ¡^exigencies of the business may be looked at, on this point, j

      the inference from them would be, that the platform, without'a fence running along its edge, was a fit and required, structure. The only other negligence that the facts would,, in any contingency, countenance, would be that the defendants had not furnished light sufficient to enable a person to see where the edge of the platform was. Evidently, it would be too great an exaction to require that after dark, when the general use of the platform had ceased for the day, the whole length of the platform for two hundred feet should be lighted. It would be more just to require that, assuming the plaintiff: was upon the dock by the implied invitation of defendants, they should make light sufficient to show the edge of the platform at such points as would be near the road, that the plaintiff might be justified in taking after ending his work. It may be assumed that the defendant was bound to furnish to the plaintiff a way by which to leave the dock, either by pointing out the way specifically or by circumstances that might indicate it. There was no evidence at all, that the plaintiff was justified in thinking that the way he took was one intended for egress, or appeared to be the only way out, or the safer of two, if there were more than one. He had, in the course of the day, perceived that the platform was incumbered -with iron. Soon after he started from his work, he perceived that before him it was so dark that there were apparently no indications of there being a way out. In connection with this, there was no proof that there was not another apparent way out. There was no proof that he was. obliged to take the way he did. I therefore, am of opinion i that there was no proof that the defendants were negligent in not furnishing light at the point where the plaintiff fell.
    “ I think further, that the special circumstance of this particular event, show that no negligence was proved. The plaintiff did not proceed, as if he were ignorant of the danger from the unguarded edge of the platform. He knew it and guarded against it, but insufficiently. If he had not' ;relied on there being cars along the platform, the absence: :«of light would not have caused his falling from the platform. As a fact, the accident was caused by there being no cars-there. The question is, was there negligence as to what did cause the accident, and not as to what might have caused it if the circumstances had been different. I cannot'think of any reason for holding that the defendants were bound to have the cars standing there.
    “ On the other hand the proof was that the plaintiff was negligent. He gave no proof of facts that justified him in supposing or believing that there would be cars along the line of the platform. He gave no evidence that he had seen them, in the course of the day, at this point or its neighborhood. Others may have seen them, but he did not act upon information from them. There was no proof that any one had seen cars in' the neighborhood of the point in question shortly before, the plaintiff left work. If they were there in an earlier part of the day, there was no reason to suppose that they would remain there. Cars are meant to move and not to stand indefinitely. It was, therefore, negligence for the plaintiff, to go into danger, relying for protection from it on the supposition of there being a guard, when he had no reason to suppose that one would be there. It is to be observed further, that if cars had been there, there is no reason to think that his hand or foot would touch a car, rather than go into the space between two cars.
    “ The plaintiff was one of a gang of men, hired by the consignee of hides, that arrived in a steamer. The hides had been unloaded from the steamer at the dock and delivered to the consignee, but had not been removed by him. He hired the gang to assort the hides as to quality and to fold them. It did not appear conclusively in the evidence that this was a usual thing to do in the proceeding by a consignee to remove hides. If this had appeared, the defendants would have been held to the duty they owe to one coming upon their pier by their invitation or implied request. Such also would have been their duty, if it were proven that the consignee were allowed to assort their hides, as a convenience to them granted by the defendants, on account of its practical connection with the steamer using ' the dock, in a way that was a benefit to the defendants. On the other hand, if the sorting of the hides . were gratuitously permitted to the consignee, for the benefit solely of the consignee, then, in my opinion, the obligation to furnish a safe exit was due to the plaintiff from the consignee, but not from the defendants. In weighing the evidence on these points, the fact of the hides being assorted in part after the working day was over, should be considered. The direction of the judge to the jury on this point was correct. The jury was to find, on the facts, whether what the consignee and the plaintiff under him were doing, 'was not incident to the business of taking away the hides.
    ‘ ‘ For the reasons that have been given, my judgment is that there should be a new trial with costs to defendants to abide the event, the present verdict to be set aside, defendant’s exceptions being sustained.”

      Charles W. Brooke, for plaintiff.

      Frank Loomis, for respondent.
   Opinion by Sedgwick, Ch. J.; Truax and Ingraham, JJ., concurred.

Verdict set aside and new trial ordered, with costs to defendants to abide the event.


text:
    BENJAMIN LAWRENCE, et al., Respondents, v. CHARLES FOXWELL, Appellant.

      Undertaking on arrest—cannot be cancelled on motion on ground that complaint has been dismissed— Gode Ovo. Proa. § 600.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided June 2, 1883.
    Appeal by defendant from order- denying defendant’s motion to cancel and discharge an undertaking given by defendant ón an order of arrest against him, and to release and discharge the sureties in the undertaking from any liability thereunder. The ground of the motion was that there had been entered a judgment dismissing the complaint against the defendant, upon the direction of the judge at trial term.
    The court at General Term, said: “Judge Ingbaham, who decided the motion below, was correct in holding, that section 600 of the Code does not provide for a proceeding like the one at bar, and such relief as is asked can only be granted under the provisions of that section.”

      W. T. B. Millikin, for appellants.

      Ellis S. Yates, for respondents.
   Opinion Per Curiam.

Order affirmed with $10 costs.


text:
    CHARLES W. BRANDT, Respondent, v. THE MAYOR, &c., of NEW YORK, Appellants.

      Evidence—admission as to length of time of employment, what constitutes.— “ Oity Record ”—Statements in as evidence against Oity.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2. 1883.
    Appeal from a judgment entered on verdict for plaintiff directed by the court.
    The general term held on the former appeal (48Super. CL 293) that it did not “appear for what length of time the plaintiff was originally employed or appointed.” The only change inthe evidence, on this point, was the introduction by the plaintiff of the following extract from the “City Record” of January 31,1880: “ Officers and subordinates in the departments of the city and county government, with their salaries and residences, together with the judges, clerks, and attendants of the several courts held therein . . . Police Department: Street Cleaning Bureau. Name, Charles W. Brandt. Position, foreman of precinct. Residence 419 78th si reet. Salary $900 per annum.” This evidence was objected to as irrelevant, -immaterial and incompetent, and was received under exception.
    The court at General Term, said: “This evidence did not prove, or tend to prove, that the plaintiff had been hired for any fixed length of time. It was simply an admission by the defendants that as long as he was continued under the existing agreement, he should be paid for his services at the rate of $900 per annum.”

      D. J. Dean, for appellants.

      Charles P. Miller, for respondent.
   Opinion by Truax, J.; Sedgwick, Ch. J., and Ingraham, J., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.


text:
    FRANCIS DRISCHLER, et al., Respondents, v. MARIE VAN Den HENDEN, individually and as Executrix, and RICHARD VAN Den HENDEN, Appellants.

      WíVjb.—Bights of children lorn after will is executed, no provision being made for them. — Conveyance by sole legatee and devisee in fraud of rights of said children, when will be set aside.—Mutual wills—what necessary to 'constitute. — Guardian ad litem—failure to notify natural guardian of application for, cannot be taken advantage of upon the trial.—Gift.■—Husband and wife.—Examination before tidal—exclusion of testimony taken in, when not error at the trial.

    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by defendant from an interlocutory judgment entered at special term.

      The court found that plaintiffs are infants under the age of fourteen years and are the children of Franz Drischler deceased and the defendant Marie Van den Henden; that plaintiffs were born after the making of the will hereafter referred to and were his only heirs at law and next of kin ; that said Franz Drischler made a will by which he gave all his property to his said wife and appointed her his sole executrix, making no provisions for plaintiffs in said will; that said will was duly admitted to probate and letters testamentary issued to said executrix, who took into her possession all the assets and property of the deceased ; that defendant Marie Drischler Van den Henden purchased certain real estate, paying for said property with the bonds or other property of said Franz Drischler deceased, and that said defendant had no property other than her interest in the estate of said Franz Drischler deceased ; that said real estate was subsequently conveyed to the defendants Marie Van den Henden and Richard Van den Hen-den ; that the contents of a certain drug-store and good will thereof, part of the estate of the deceased, were sold and delivered by said executrix to said Richard Van den Hen-den, before the marriage of said executrix to said Van den Henden for an alleged consideration of seven hundred dollars, which was an inadequate and insufficient consideration therefor ; that the transfers of said real estate and drug store, to said defendant Richard Van den Henden were made with the intent to defraud the infants, plaintiffs, and to deprive them of their rights in their father’s estate, and that said Richard Van den Henden was cognizant of the fraudulent character of the transfer of said property and a party thereto.
    And as conclusions of law: that plaintiffs are entitled to recover the same portions of the estate of their father, Franz Drischler, deceased, as they or either of them would have been entitled to if their said father had died intestate ; that the said real estate and drug store were conveyed to defendants with the intent to defraud the plaintiffs ; that a trustee should be appointed to convey the said property to the plaintiffs subject to the rights of the defendants ; that the defendants account for all the property, and the rents, incomes, interests and profits of said real estate that came into their hands, and the full value of the drug-store before a referee.
    Judgment was entered in conformity therewith, from which defendants appeal.
    The court at General Term said: “I have carefully •
    examined the testimony given on the .trial and am of the opinion that the findings of facts are sustained by the evidence. i
    “ The defendants claimed that the complaint should have been dismissed, because it appears that the guardian ad litem for the infants, plaintiffs, was appointed without notice to the defendant, who was the mother of the plaintiffs, and with whom they were residing at the time of his appointment. I do not think that such an objection could be taken at the trial where the court has jurisdiction of the cause of action and the persons of the parties. A failure to appoint a guardian ad litem for an infant plaintiff, is-simply an irregularity, and such an omission does not deprive the court of jurisdiction (Rutter y. Puckhover, 9 Bosw. 638). In this case the court appointed a guardian, and having jurisdiction to make such an appointment, it cannot be questioned collaterally, but only by a motion to set aside such an appointment as irregular". It appears that such a motion was made and denied and from the order denying it no appeal was taken. This I think concluded the parties here as to any alleged irregularity.
    “The appellant also moved to dismiss the complaint on the ground that it did not appear in evidence that no other settlement had been made for the children of the testator. The will of deceased gave to the defendant all his real and personal property, of whatever nature or kind of which he was possessed, at the time of his death. It was alleged in the complaint, and it appears by the evidence, that the defendant had taken possession of all the assets and property left by the deceased, and there were no allegations in the pleadings, and no evidence offered at the trial, that the plaintiffs were provided for by any settlement. This I think is sufficient to bring the case within the statute. The will was made several years before the plaintiffs were born; it gave all the property of the deceased to his wife; on the1 death of the testator the wife took possession of all the property and assets of the deceased ; and the infants were at the time of the testator’s death under the age of fourteen years. These facts are entirely inconsistent with the idea that the testator had provided by any settlement for the plaintiffs, and were I think sufficient to put the defendants to the proof of such a provision by settlement if one had. been made.
    “The real estate of the testator therefore, descended to the plaintiffs, and they were entitled to the same share of the personal property as if the testator had died intestate (Smith v. Robertson, 89 JV. T. 555).

    “ The fact that at the time of the execution of the will in question, the defendant made a will leaving all her property to the testator, does not of itself make the wills mutual wills. In order to make a mutual will the instrument, or instruments, must be executed by both parties under an agreement to make such a disposition of the property of each, that the survivor will be entitled to the property of the one first dying, or the disposition of the property must be in the instrument executed by both of the parties. There is no evidence in this case that the defendant made her will under any such agreement or understanding, or in fact that the testator ever knew that she had made a will in his. favor, except the fact that he signed the defendant’s will as a witness.
    ‘‘The evidence was not sufficient to establish a gift of the $18,800 of United States bonds by the testator to the defendants; the most that can be said is that there was some evidence from which such a gift might have been, found. The burden of proving a gift is on the party alleging it, and the mere manual possession of a deceased husband’s property by his widow is not prima facie evideuce of a change of title to her (Conklin v. Conklin, 20 Hun, 278).
    “ The exclusion of the examinations of the defendant taken before trial, was not error. The defendant had been examined on her own behalf, the plaintiff had then rested their case on rebuttal, and it was within the discretion of the trial court whether to allow the defendant to be recalled or not, and under the circumstances, I do not think that there was such an abuse of that discretion as would justify a reversal. Under any circumstance no harm could come to the defendant, as after the rejection of the evidence, the court allowed her to be recalled and testify.”

      William C. Clifford, for appellant.

      John P. Pannes, for respondent.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred in result.

Judgment affirmed with costs.


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    ADOLPHE M. WEISS, v. HARVEY FARRINGTON.

      Contract—construction of.—Agreement to pay $200 per month, $100 to be spent in traveling expenses, detailed account of which is to be given, to be deemed absolute contract to pay $200 per month.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.
    Exceptions ordered to be heard in the first instance at the general term, upon verdict directed for plaintiff.
    The only question in this case was the construction of the agreement in which the action was brought. That agreement provided that defendant should pay to plaintiff one half of the profits accruing from sales of merchandise by plaintiff, for account of defendant, during the year 1881; and that the defendant should advance on account of said profits $200, at the end of each month—$100 to be applied in payment of his traveling expenses. It was also agreed that should half the profits not equal the amount above stated, there should be no charge by defendant' against plaintiff. Defendant claimed that under that contract, plaintiff was entitled to $100 per month, and traveling, and other expenses. The judge at the trial held that the plaintiff was entitled to the $200 per month, and directed a verdict accordingly.
    The court at General Term said: “ I am of the opinion that the construction of the contract by the trial court was right. The defendant agreed to advance, not $100 per month and expenses, but $200 per month. That obligation was absolute ; it did not depend on the amount of the profits or On any other contingency ; and at the end of each month plaintiff was entitled to receive the advance of $200. The complaint alleges that said sum was not paid, and that the answer admits. There is nothing inconsistent with this obligation in the fact that plaintiff was to render a detailed account of his expenses. The obligation still remained, and on his performing his part of the agreement, he was-■entitled to enforce such obligation.’’

      Stern & Myer, for plaintiff.

      Edward Kempter, for defendant.
   Opinion by Ingraham, J.; Sedgwick,. Ch. J., concurred.

Exceptions overruled and judgment ordered for plaintiff on the verdict with costs.


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    BENJAMIN H. TAYLOR, et al., v. THE SECOND AVENUE R. R. CO.

      Agency—cannot be established by declarations of assumed agent.—Ratification— admission by president of corporation, when not sufficient to constitute.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by both parties from judgment entered in favor of the plaintiff on a verdict of a jury.

      Action to recover from the defendant for certain work and materials furnished by plaintiff and used in the erection of a depot built for defendant, and for which plaintiff" alleges, defendant promised to pay.
    Plaintiff was allowed, under objection, to testify, that Mr. Prague the architect of the defendant went to plaintiff’s-place of business about November 3, 1877, andkepresented himself as the architect of defendants and an agreement was made with Mr. Prague to do some extra work, and that he, Mr. Prague, told witness that the president of the defendants had authorized him to make an agreement to pay for the work; that the president of the defendant had authorized Prague to say to witness, that if he would go on and put the roof on at the contract price, less five per cent.,, the company would assume it.”
    The court at General Term, said : “ This evidence was clearly inadmissible as against the defendant. Mr. Prague-was merely the architect of the defendant. There is no evidence in the case,- that he was employed by the company at all, except to make the plans for the buildings and see that the plans were carried out, or had any authority to* bind them in any way; and no declarations of his are admissible as against the defendant. An agency cannot be created by the representations of an assumed agent (Marvin u. Wilbur, 52 N. 7. 270) and the admission of such representative without subsequently showing that the party making them, was agent of the company, or connecting' the company in any way with the conversation, is error. . (Snook v. Lord, 56 N. T. 605). The alleged admission of Mr. Mehrbach at a subsequent interview that he had sent Mr. Prague to the plaintiffs to have them go on and do the roofing, does not make the evidence competent. No-authority to the president to either make the contract or-to bind the defendant by admissions, was proved, and the " defendant could not be bound by his declarations made-after the transaction in question (First National Bank tu ■jOcean National Bank, 60 N. T. 278).

      James A. Hudson, for plaintiff.

      Austin G. Fox, for defendant.
   Opinion by Ingraham, J. ; Sedgwick, Ch. J., and Truax, J., concurred.

Judgment reversed and new trial ordered, costs to abide event.


text:
    WILLIAM ULLNER v. FREDERICK BUTTERFIELD.

      Statute of limitations—distinctions in its operation on residents and on nonresidents—absences from the state, etc.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Plaintiff’s exception to a verdict directed for defendant and ordered to be heard in the first instance at general term.
    The action was for injury to plaintiff’s personal property from defendant’s alleged negligence. The defense, among others, was the statute of limitations. The court below delivered the following opinion upon dismissing the complaint: “In its practical application, the statute of limitations applies to both residents and nonresidents, but its construction becomes very different when certain things are considered, viz.: Whether the defendant, at the time when the cause of action accrued, was a resident or a non-resident % A non-resident is never presumed to be here ; hence, he is always presumed to be absent until shown to be here ; and, therefore, the statute does not commence to run as to him until he comes within the state; and, under the operation of the statute, the plaintiff has six years from that time within which to commence his action. In the case of a non -resident making successive visits and. successive departures, the aggregate time that he spends here must be considered (counted). But in the case of a resident, the rule works the other way; he is always presumed to be here (within the state), unless shown to be absent; hence, as to him, the plaintiff must commence his action within six years, unless the defendant be absent from the state in a certain way ; if so absent, that time is not counted as a part of the six years, and operates as an extension of the six years of limitation.
    Now, in this case it appears, that although there were a number of absences on business, none of them amounted to a year; and none of them were, under such circumstances,, that it can be held, as matter of law, that the defendant acquired a residence abroad. The provisions of the Code extending the statute in actions of this nature, apply only when it is shown that during the running of the statute the defendant acquired a fixed residence outside of the state, or in case he does'not acquire such fixed residence, if the absence is continuous for at least a year. So that under the decisions as they now stand, the true interpretation of the Code is that this action should have been commenced within six years, it having been proved that the defendant was here when the cause of action accrued and was also here at the time when the plaintiff claims his action was commenced by placing the summons in the hands of the sheriff for service, although the proof shows that the actual service in this case was made beyond the time when the plaintiff should havé brought his action. The Code provides that an action may be deemed to be commenced so as to save the statute, provided the summons is delivered to the sheriff with the intent that it shall be actually served. That was done within the six years in this case; but the Code further- provides that the plaintiff shall take nothing by doing this, unless it is followed up by the actual personal service thereof upon the defendant within sixty days after the expiration of the time limited by the statute, or by the first publication of the summons as against the said defendant within that time, pursuant to an order for service upon him in that manner. Now, in this case, although the summons was delivered to the sheriff within the six years, yet as it was not followed up by either the personal service thereof or by the first publication thereof within the time limited by law, the plaintiff did not commence his action within the meaning of the Code, within the time limited by law ; hence the defendant is entitled to a verdict.”
    The court at General Term said : “ Judge Freedman, in his opinion below, made it clear that the action was barred by the Statute of Limitations. The question was whether under §401, Cod. Civ. Proc., any absence of the defendant as shown by the testimony required that the time of the absence should be added to the time otherwise limited by the statute. There were several absences. None of them was for more than six months. Added together they would have extended the statutory term so, that the action would not be barred. The plaintiff was entitled to no time, by the operation of the first sentence of the section, viz. ; ‘ If when the cause of action accrues against a person, he is without the state, the action may be commenced within the time limited therefor, after his1 return into the state.’ The proof was that when the action accrued the defendant was within the state, was also a resident of it. The next sentence is, if after a cause of action accruing against a person, he departs from and resides without the state or remains continuously absent there from for the space of one year or more, the time of his absence is not a part of the limited time. The proof was from circumstances, that defendant was a resident of this state when the cause of action accrued, and it was direct that his absences were not for residence out of the state, and that he was not absent, at any time, continuously for the space of a year or more. The facts were so full, that they raised no question, that calls for discussion.”

      Smith, Allen & Smith, for plaintiff.

      Boardman & Boardman, for defendant.
   Opinion Per Curiam.

Exceptions overruled and judgment for defendant entered on the verdict with costs.


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    JOSEPH J. KELLY, Respondent, v. EDWARD C. SHEEHY, Appellant.

      Forcible entry and detainer—treble damages—value of period for whichpremises are detained, possibility if premises had not been detained, of longer letting than such period may be considered.

    Before Sedgwick Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by defendant from judgment entered upon verdict and from order trebling damages.
    Action for damages, for forcible entry (Code Civ. Pro. § 1069). The jury found single damages, which were reduced as excessive by order of the j udge, and by the same' order the reduced amount was trebled.
    It appeared that the defendant was guilty of the forcible entry, and that he detained the premises from the plaintiff for the space of about five months. The complaint claimed as damages in part, the value of the use and occupation'for the five months.
    The court at General Term said : “ It is a mistake to suppose that the claim was for the use and occupation by the defendant as upon a letting. It was upon the value to the plaintiff of the use and occupation if he had.not been prevented from disposing of it by the defendant. There was nothing incorrect in the court charging that the jury in estimating the value referred to might consider what it would be for thc| five months, if the plaintiff could rent it for one year, including the five months. The power of the plaintiff to use, the occupation for five months in such a way, affected the actual value, to the plaintiff.
    “ The appelMnt’s counsel argue, that the court had no power to treble the damages, because the complaint contained a claim for damages that could not be recovered in an action for forcible entry. It is true that the complaint did make such a claim, but there was no recovery upon it. and the present case, being a part of the record, this ap-; pears upon the .record.”

      Henderson & Tompkins, for appellant.

      John Townshend, for respondent.
   Opinion Per Curiam.

Jndgment affirmed with costs, and order affirmed with $10 costs.


text:
    LATIMER BAILEY, Appellant, v. JAMES RICHMOND, Respondent.

      Pleading.—Statements as to indebtedness amias to “ succession” to pab’tnership. claim—when deemed conclusions and not facts.

    Before Sedgwick, Ch. J., Truax and Ingraham, J.

      Decided June 2, 1883.
    Appeal by plaintiff from judgment in favor of defendant, upon demurrer by defendant to the complaint.
    The complaint rested upon the averments that between certain dates, the defendant became indebted in a certain •sum, in that between the said dates, the defendant was employed as a clerk by a firm of Albinola & Bailey, at a stated salary, and that between such dates, the defendant drew from the firm the sum of $721.36 more than was due him from said firm, for his salary as clerk aforesaid, or by reason of any other cause or thing whatsoever.
    „ The court at General Term, said : “It is evident, that •conclusions only are here pleaded, and not facts upon which legal judgment is asked, and for this reason the complaint was demurrable as to the.first cause of action.”
    As to both causes of action, the complaint also averred that “ the plaintiff succeeded to the business, book accounts ■and property of said firm of Albinola & Bailey, and to the claim against the defendant; that said succession and title was obtained by a written instrument on the part of the plaintiff’s then copartner, and which instrument plaintiff will refer to on the trial thereof.”

      The court at General Term, said : “ It is also evident that here, the plaintiff has given his judgment as to there-having been a succession, rather tlia-n the facts which woulcL make him the assignee or transferee of the firm. ”

      Alexander H. Nones, for appellant.

      G. A. Seixas, for respondent.
   Opinion Per Curiam.

Judgment affirmed with costs.


text:
    GEORGE RANDALL, Respondent, v. JAMES HAVEMEYER, Appellant.

      Corporations.—Pleading—action to enforce stockholder's statutory liability in case-of non-payment capital stock—allegation that capital stock had been reducedwhen material to stockholder—appointment of receiver of corporation, allegation as to, not material.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by defendant from order, striking out part of answer, as irrelevant, and requiring another part to be-made more definite and certain.
    The court at General Term, said : “So far as the order-directed the answer to be made more definite and certain, it did not affect any substantial right of the def endant, and it should be affirmed.”
    The action was brought by the plaintiff as a creditor of a mining company, after judgment obtained and execution returned, to recover from the defendant, as a stockholder of the company, the amount due to plaintiff on the ground that the capital of the company had not wholly been paid in.. The complaint alleged that the defendant was the owner of stock to an amount specified.
    The answer alleged that befóre the judgment referred to Lwas obtained, the capital stock of the company was diminishecL to one-tenth-of the original amount. The order below struck out as irrelevant, the words that constituted this allegation.
    The court at General Term, said : ‘ ‘ This was erroneous. The answer had controverted the averment of the complaint, as to the amount of stock owned by the defendant, and had alleged that the amount was one hundred shares, and no more. The defendant had a right to take the position that the number of shares which might be the basis of his responsibility was to be determined in part, by the reduction of the original amount of the capital. This position was not irrelevant to the issue referred to, and even if not well taken as a defense, or part of a defense, should not have been stricken out, so that the defendant could not use it in the trial of the issues. The order should be reversed so far as it struck out the matter that has been examined.”
    The order also struck out as irrelevant, allegations that a permanent receiver of the property of the company had been appointed, who had entered upon his trust and had taken possession of all the property of the company, and had never been discharged.
    The court at General Term, said : “ This is not pleaded as a separate defense and is not relevant to any defense pleaded, or to any that can be suggested as possible. It would not be received as evidence upon any issue that might be made upon the trial. The order was correct in this respect.”

      T. H. Barowsky and Lemuel Skidmore, for appellant.

      Samuel L. Harris, for respondent.
   Opinion Per Curiam.

Order reversed in part and affirmed in part, as above indicated, without costs to either party.


text:
    J. STUART McALEER, Respondent, v. WARREN H. CORNING, et al., Appellants.

      Mew trial—motion for stating no grounds, raises no question on appeal.— Amendment at trial—as to time of employment.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal from a judgment and from an order denying a motion for a new trial.
    Action for breach of contract of employment.
    The court at General Term, said: “ The motion for a new trial on the minutes was general and did not call the attention of the court to any point as a basis of the motion, and, therefore, it raises no question upon' appeal. The grounds of the motion should have been stated (Gray •». N. Y. Floating EL Co., 13 W. D. 140 ; Be Luce v. Kelly, 5 Id. 32).” ' •
    The complaint alleged an employment made on or about April 30. It was amended to read April 8, to conform to the facts proved.
    The court at General Term, said: “The amendment made by the court on the trial does not furnish grounds for reversing the judgment. • The variance was not material (Hovey v. Am. Mut. Ins. Co., 2 Duet, 554).”

      W. M. Safford, for appellants.

      J. H. Mapes, for respondent.
   Opinion Per Curiam.

Judgment and order affirmed with costs to respondent, without prejudice to motion for new trial at special term, on the facts.


text:
    LOUIS G. HART, Appellant, v. THE TRUSTEES CONGREGATION SHEARITH ISRAEL, Respondents.

      Religious corporation—powers of individual trustees and of president—person dealing with president chargeable with notice of limitations of power.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal from judgment entered on the dismissal of the complaint. The action was tried before a court and a jury.
    Action by broker to recover his commissions upon a sale of real estate, belonging to the defendant.
    “The court at General Term, said : “There is no evidence that the plaintiff was ever employed by the defendants to sell the real estate in question. Mr. Nathan had no power to bind the defendants. He never attempted to bind them. That could only be done by the trustees of the corporation as a board and not as separate individuals (Constant v. The Rector, &c., 4 Daly, 305). There was nothing in defendant’s constitution and by-laws that gave any authority to the president, or acting president of the trustees, any power to employ the plaintiff, without the knowledge or consent of the board of trustees, and the plaintiff was chargeable with notice of the president’s authority, and of the limitations and instructions upon it, contained in said constitution and by-laws (Dabney v. Stevens, 32 Super. Qt. 415).

      Everett P. Wheeler, for appellant.

      Charles A. Lane and Morris Goodhart, for respondent
   Opinion Per Curiam.

Judgment affirmed with costs.


text:
    THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, &c., Respondent, v. THOMAS O’REILLY, Appellant.

      Injunction pendente lite—when appeal from order granting will not be heard, on ground that action has been tried on merits, and temporary injunction is merged in judgment entered.

    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided November 5, 1883.
    Appeal by the defendant from an order made at special term, December 29, 1882, continuing the injunction heretofore granted pendente lite, December 4, 1882, restraining the defendant, his agents and servants, from continuing the work upon the building or tenement-house, known as No. 1089 First avenue, in the City of New York, and from completing or finishing the same contrary to the requirements of law, and from selling, letting, hiring, occupying, or using in any manner the said house or any part thereof.
    The action was brought to enforce Laws of 1867, 1879 and 1880, known as the tenement-house laws.
    After the order appealed from had been entered and before the appeal therefrom had been heard the action was tried on its merits and a judgment was entered restraining the defendant from doing the acts, the doing of which hid been restrained by the order appealed from.
    The court at General Term, said : “ The order appealed from is merged in the judgment. An examination of the records of the court shows that the judgment covers the whole case, and that it superseded the injunction order. In such a case, the court will not hear the appeal from an order that has been merged in a judgment but will leave the appellant to his appeal from the judgment.”

      Joseph Koch, for appellant.

      W. P. Prentice, for respondent.
   Opinion by Truax, J.; Sedgwick, Ch. J., and Ingraham, J., concurred.

Appeal dismissed, with costs and disbursements.


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    JOHN W. JARBOE, et al., Appellants, v. JAMES MULRY, Respondent.

      Lease for fpe years—letter signed, by party to be charged, containing other requisites, and alluding to premises only, “ as 1 described ihemf is insufficient.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided December 3, 1883.
    Appeal by plaintiffs, from judgment for defendant entered upon a direction at trial term. dismissing the complaint.
    Action was for alleged breach of an alleged contract to give a lease for five years of certain real estate. The only writing signed by the defendant was a letter directed to the plaintiff, as follows: “I to-day sold the lot to theQuintard Works and signed the contract for the same and received part of the money, hence that part is settled. I now propose to let the premises to you, as I described them, for five years at $1,800 per year, and with a privilege of five more, at $2,000, and will get it ready for occupancy on the 1st of April.”
    The court at General Term, said: “The only evidence that the proposition of this letter was ever accepted, which was necessary to the existence of the contract, was another letter written by the plaintiff, but this letter contained terms and further propositions which were not in the writing signed by defendant. There was therefore, no contract proven. The letter moreover could not be considered to be a contract inasmuch as it did not state what premises were to be leased. The letter alluded to them as premises 4 as I described them.’ The reference was to a conversation. This could not be used as a part of a contract which by statute must be wholly in writing (Wright v. Weeks, 25 N* Y. 153). . •

      E. T. Wood, for appellants.

      Malcolm Campbell, for respondent.
   Opinion by Sedgwick, Ch. J.; Freedman and O’Gorman, JJ., concurred.

Judgment affirmed with costs.


author: Sedgwick, Ch. J.

text:
    MARY LONDRIGGAN, as Administratrix, &c., Appellant, v. THE N. Y., N. H. & H. R. R. Co., Respondent.

      Appeal from, order overruling demurrer to answer—will not lie before judgment* —Statute of Limitations—right of foreign corpoi'ation to talce advantage of in action against itfór causing death.—Code Oiv. Proe. §§ 401, 414, 1903.
    Before Freedman and O’Gorman, JJ.

      Decided December 3, 1883.
    Appeal from order overruling the demurrer interposed by the plaintiff to the second defense set u.p in the answer of the defendant and directing judgment for the defendant thereon.
    Action upon the following section of the Code of Civil Procedure: u § 1902. The executor or administrator of a decedent . . . may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent’s death was caused, against . . . 'a corporation which would have been liable to an action in favpr of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent’s death.” The wording of the original act on this.subject was : “ . . . provided that every such action shall be commenced within two yéars after the death of such deceased person” (Laws 1847, ch. 450). Plaintiff’s intestate was killed October 23, 1878. This action was commenced October 1, 1881. The defendant set up two defenses, one of which was as follows : “ Second.—That for a further defense, the defendant says : That this action was not commenced within two years after the death of the said Patrick Londriggan.” The plaintiff demurred to the-above defense, upon the ground that it was insufficient in law. The court, at Special Term, ordered that the demurrer be overruled with judgment for the defendant, from which order this appeal is taken. The following opinion was rendered:
   Sedgwick, Ch. J.

—“If it were not for §401, Code Civ. Pro., the limitation of the time of enforcing civil remedies would be applied to all defendants irrespective of their being in or out of the state, residents or non-residents, at the time of the accruing of the action or during the limited time. Upon provisions similar to § 401 it was held that foreign corporations could not avail themselves of the Statute of Limitations, because such provisions applied to corporations as well as natural persons, and a foreign corporation was always without the state (Olcott v. Tioga R. R., 20 N. Y. 210). Section 414 declares that the provisions of chapter 4 shall apply, except in a case where a different limitation is expressly prescribed by law. If this were all, inasmuch as the present case is under § 1902, which prescribes a special limitation of two years, it would seem to be clear that the provision of § 401 does not apply to the case, and the plaintiff is not authorized to commence the action at any time after the time specially limited therefor has passed. The only doubt, however, that occurs to me would be, if at all created by the question whether the words the ‘ provisions of this chapter ’ were not so limited by its connection as not to refer to all the provisions in the widest sense, but refer to the times especially declared within which actions may be begun—e. g., twenty years for ejectment, six years for contracts not under seal, &c. The words are: ‘ The provisions of this chapter apply and constitute the only rules of limitation applicable to a civil action,’ &c. A scrutiny of § 401 shows that the enlargement of the time given by it, upon the conditions it names, is in an exact sense a limitation of time, and is a rule of limitation, as also are the specific terms before-named in the chapter. The demurrer should be overruled with judgment for defendant.”

Cooper & Whitlock, for appellant.

—Under section 401 of the Code, the defendant stands in all respects as a domestic corporation in regard to all limitation statutes, provided that they comply with subdivision 2 of section 432 of the Code. It does not appear by the answer that this certificate has been filed. A foreign corporation cannot under any circumstances avail itself of a statute of limitation in the courts of this state (Rathbun v. Northern Central R. R., 50 N. Y. 656; Boardman v. Lake Shore & Michigan Southern R. R. Co., 84 Ib. 185).

W. E. Barnett, for respondent.

—No action for causing death could be maintained under the cómmon law. To sustain the action every condition of the statute must be complied with, one of which is that “such an action must be commenced within two years after the decedent’s death” (Brown v. Harmon, 21 Barb. 508; Yertore v. Wiswall, 16 How. 8).

Prior to the death of the plaintiff’s intestate, chapter IY. of the Code of Civil Procedure, containing the general statutes of limitation and the rules and exceptions in relation thereto, had been enacted; but the whole chapter is made subject to the qualifications contained in § 414, which provides that “ the provisions of this chapter (chapter IY.) apply, and constitute the only rules of limitation applicable, to a civil action .... except in one of the following cases: (1) A case where a different limitation is specially prescribed by law.” An action under § 1902 is “a case where a different limitation is specially prescribed,” and is therefore expressly excepted from the “rules of limitation” contained in chapter IY., including the “rule” in §401, under a provision similar to which the cases above cited were decided.

It follows that Olcott v. Tioga R. R. Co. (20 N.Y. 210), and Rathbun v. N. C. R. R. (50 N. Y. 656), are not now authority for sustaining the plaintiff's demurrer in the case at bar (Throop's Code, § 414, note).

Boardman v. L. S. & M. S. Ry. (84 N. Y. 157), though recently decided, was commenced in 1875, two years before chapter IV. of the Code of Civil Procedure took effect. It was not a case governed by any special limitation, and of course the points raised in the case at bar were not considered in that action. Moreover, it was unnecessary in that case to make any decision as to the disability of a foreign corporation to plead the statute of limitations.

The “designation” provided in the last clause of § 401 of the Code of Civil Procedure would enable a foreign corporation to plead the statute of limitations in actions mentioned in titles 1 and 2 of chapter IV. and not commenced within the times limited in those titles. It is not necessary for such a corporation to show the filing of a “ designation ” in order to be enabled to plead the statute of limitations in an action under § 1902, if the final sentence in that section is to b.e treated as a statute of limitations.

The court at General Term said : “If this appeal could be entertained, I would have no hesitation in holding, as the merits have been argued and examined, that the learned chief judge was right in the conclusion reached and the assignment of his reasons therefor. But it has been repeatedly held that an appeal from such an order will not lie before judgment ” (Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514; Garner v. Harmony Mills, 45 Super. Ct. 148; Campbell v. N. Y. Cotton Exchange, 47 Super.Ct. 558).

Opinion by Freedman, J.; O'Gorman, J., concurred.

Appeal dismissed, with costs.


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    DOMINICK MALONE, Appellant, v. ROGER M. SHERMAN, Respondent.

      Pleading—rules of construction.—Action by client against attorney for alleged' breach of duty resulting in clients imprisonment on criminal charge.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided December 17, 1883.
    The complaint was dismissed upon the opening of the trial by the trial judge, and the exceptions ordered to be-heard in the first instance at general term.
    Action for $50,000 damages, alleged to have been sustained by the plaintiff, by reason of the alleged neglect of the defendant as his attorney, in this, that the plaintiff having been convicted of a criminal offense, in the United States circuit court, for the southern district of New York, and the defendant having, at the request of the plaintiff, filed in said court a notice of motion for a new trial on exceptions, and in arrest of judgment, the defendant, without the authority of the plaintiff, and without notice to him, did maliciously, fraudulently, and with intent to injure the plaintiff, withdraw and countermand said notice, and did thereby deprive the plaintiff of his right to appeal. The complaint further set forth, that plaintiff, not knowing of. said withdrawal of notice of motion, did employ counsel to make said motion ; that an affidavit of defendant that he had countermanded said motion, substantially on the ground that plaintiff had failed to pay him counsel fee for making said motion, was used on said argument by the attorney for the United States, that the court denied said motion ; and that plaintiff was actually sentenced and imprisoned, and compelled to pay a. fine of $1,000.
    The court at General Term, said : “It will be presumed that the plaintiff has stated all the facts most favorable to-himself, giving, however, to his complaint a liberal construction with a view to substantial justice between the parties (Code, § 519). The law, however, will not assume in favor of the plaintiff, the existence- of any fact that he has not averred (Cruger v. Hudson R. R. R. Co., 12 JY. Y. 190), or accept as facts, any mere conclusion of the plaintiff himself as to malice, or fraud, or evil intent on the part of the defendant. The conviction of the plaintiff in the United States circuit court, must, in the absence of any. allegation to the contrary, be presumed to have been lawful. The motions on behalf of the plaintiff for a new trial, etc., were, notwithstanding the action of the defendant complained of, argued by counsel on behalf of the plaintiff, and denied by the court; and for all that appears, fully heard oh the merits and denied by the court without any regard to the affidavit made by the defendant or the withdrawal of the notice of motion. The action of the court in denying the motion and in sentencing the plaintiff, must be presumed, in the absence of any allegation to the contrary, to have been lawful, as also his fine and imprisonment in pursuance of said sentence. There is no allegation in the complaint as to the grounds on which the plaintiff desired to appeal and review the verdict of the jury rendered against him, or that lie had any good ground on the law or the facts of liis case for said motion ; nor does he allege that he could have succeeded on such motion but for the action of the defendant complained of.”

      Klebisch & Wehle, for appellant.

      Roger M. Sherman, respondent in person.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Exception overruled, and judgment ordered for the defendant, with costs.


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    Clinton H. Blake, et al., appellants, v. Isidor Rosenthal, et al., respondents; Edmund W. Converse, et al., appellants, v. Isidor Rosenthal, et al., respondents; Henry Lewis, et al., appellants, v. Isidor Rosenthal, et al., respondents.
    Decided December 30, 1882.
    Appeal by the plaintiffs in each <of the above entitled actions from the judgment dismissing the complaint upon the merits.
    Marsh, Wilson & Wallace, for appellants. Richard S. Newcomb, for respondents.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Russell, J., concur. Judgments appealed from severally affirmed, with costs.


text:
    National Bank of Virginia, appellant, v. Robert A. Mills, et al., respondents.
    Decided December 30, 1882.
    Appeal from judgment dismissing complaint for lack of proof.
    W. L. Royall, G. L. Carlisle and E. P. Wilder, for appellant. Thomas Bracken, J. J. Roche, and A. J. Vanderpoel, for respondents.
   Freedman and Russell, JJ., sitting. Per Curiam.— Agree to affirm on the opinion below, with costs.


text:
    Horace N. Gilbert, appellant, v. Samuel L. Harris, respondent.
    Decided December 30, 1882.
    Appeals by receiver from orders denying action to punish defendant as for contempt, and denying motion to vacate order of discontinuance.
    George C. Lay, for appellant. Samuel L. Harris, respondent in person.
   Sedgwick, Ch. J., and Russell, J., sitting. Per Curiam.—Agree to affirm both orders without opinion.


text:
    Thomas Meredith, appellant, v. The Forty-second Street, &c., R. R. Co., respondent.
    Decided February 5, 1883.
    Appeal from order made on the judge’s minutes setting aside a verdict in favor of the plaintiff on the ground that said verdict was against the weight of evidence.
    C. D. Rust and Erastus New, for appellant. Ely & Smith, for respondent.
   Opinion by O’Gorman, J.; Truax, J., concurred. Order appealed from affirmed, with $10 costs.


author: O’Gorman, J.

text:
    James Malcolm, appellant, v. Henry F. Hammill, respondent.
    Decided February 5, 1883.
    Appeal from order fixing the compensation of Charles • W. Dayton, the receiver, etc., of Henry F. Hammill, at the sum of $675.
    Stern & Myer, for appellant; John H. Cole, for respondent.
   O’Gorman, J.

—The judge at special term, in fixing $675 as the compensation of the receiver, acted on his understanding of an offer made by the appellant’s counsel in open court, and accepted by the counsel for the respondent. We cannot now go into an investigation of the different interpretations of which that offer may be susceptible, but must accept that interpretation which was given to it by the judge before whom it was made. Sedgwick, Ch. J., concurred. Order affirmed, with $10 costs.


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    Norma L. Nichols, respondent, v. William D. Nichols, appellant.
    Decided February 19, 1883.
    Appeal by defendant from order denying his motion to offset a judgment attained by him, for costs against an order for payment of alimony to plaintiff.
    Lawrence & Waehner, for appellant. Holmes & Adams, for respondent.
   Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting. Per Curiam.—Order affirmed with $10 costs, and disbursements to be taxed.


text:
    Peter W. Gallaudet, respondent, v. William G. Steinmetz, appellant.
    Decided February 19, 1883.
    Appeal by defendant from judgment upon verdict for plaintiff, as directed by the court.
    Dana & Clarkson, for appellant. Niles & Bagley, for respondent.
   Opinion per Curiam.—Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting. Judgment reversed, with costs of appeal to appellant to abide event.


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    Rufus Hatch, respondent, v The Western Union Telegraph Co., et al., appellants.
    Decided April 9, 1883.
    Appeal from order granting injunction pendente lite.

    Martin & Smith, for respondent. Dillon & Swayne, for appellants.
   O’Gorman, J.

—The order made at special term of this court, bearing date the 26th day of December, 1882, and entered December 29th, 1882, in the office of the clerk of the superior court, appealed from, is affirmed, with $10 costs. Sedgwick, Ch. J., concurred; Ingraham, J., dissented (See Williams v. Western Union Telegraph Co., ante, p. 140).


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    Henry L. Butler, et al., appellants, v. Moses Stern, el al., respondents.
    Decided April 9, 1883.
    Appeal from order denying a motion on the part of the plaintiff for an order overruling the defendant’s answer as frivolous, and for judgment thereon.
    Rudolph Sampter, for appellants. Kaufman & Sanders, and Louis A. Wagner, for respondents.
   O’Gorman, J.

—This motion was made under section 537 of the Code of Civil Procedure, which provides that if the applica- • tion be denied, an appeal cannot be taken from the determination, and the denial of the application shall not prejudice any of the subsequent proceedings of either party. Sedgwick, Ch. J., concurred. Appeal dismissed, with $10 costs, and the order of the special term affirmed.


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    Amelia Langley, respondent, v. The Sixth Ave. R. R. Co., appellant.
    Decided April 9, 1883.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for new trial made upon judges minutes.
    D. R. O’Sullivan and D. M. Porter, for appellant. Benjamin T. Mudgett and Freeman J. Fithian, for respondent.
   Opinion per Curiam.—Sedgwick, Ch. J., O’Gorman and Ingraham, JJ., sitting. Judgment affirmed, with costs, and order appealed from affirmed with $10 costs.


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    Frederick Voss, by Guardian, &c., respondent, v. The Third Avenue R. R. Co., appellants.
    Decided May 7, 1883.
    Appeal from judgment for plaintiff for $20,701.69) and from order denying a motion for a new trial on the minutes.
    Lauterbach & Spingarn and John Graham, for appellants. Stilwell & Swain and A. H. Dailey, for respondent.
   Opinion by O’Gorman, J.; Ingraham, J., agrees that judgment should be affirmed. Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs.


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    Eben F. Bacon, respondent, v. Horace B. Claflin, et al., appellants.
    Decided May 7, 1883.
    Appeal by defendants from judgment for $6,664.58, entered May 16, 1882, in favor of plaintiff, and from order denying defendants motion for new trial on the minutes.
    Vanderpoel, Green & Cuming, for appellants. Martin & Smith, for respondent.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred; Ingraham, J., concurred in result. Judgment affirmed with costs, and -order appealed from affirmed, with $10 costs.


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    George W. Wood, appellant, v. Rudolph F. Rabe, et al., Exrs, &c., et al., respondents.
    Decided May 7, 1883.
    Appeal by plaintiff from judgment in favor of defendants, entered upon decision of judge Lat special ter.m.
    Deyo, Duer & Bauerdorf, for appellant. Edward Browne and Rudolph F. Rabe, for respondents.
   Sedgwick, Ch. J., O’Gorman and Ingraham, JJ., sitting. Per Curiam.—There is no material difference between the case, in its present state, and when it was decided at the former general term (Wood v. Mulock, 48 Super. Ct. 70). That decision requires the affirmance of the present judgment. In Robbins v. Robbins (89 N. Y. 251), the court of appeals said that the trust was executed as to the real estate. In view of the finding of fact, that no agreement between plaintiff and defendant to the effect that the defendant should use the judgment obtained, by defendant, for the purpose of redeeming the property and should transfer the said property to the plaintiff was ever made, there is no reason for disturbing the direction of the court, as to the allowance. Judgment affirmed, with costs.


text:
    James S. Flynn, respondent, v. The New York Elevated R. R. Co., appellant.
    Decided May 16, 1883.
    Appeal by defendant from order allowing plaintiff to discontinue the .action against a co-defendant and allowing plaintiff to serve an amended complaint.
    Deyo, Duer & Bauerdorf, for appellant. Louis J. Grant, for respondent.
   Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Per Curiam.—The present appellants had no interest in the discontinuance or maintenance of the action against their former co-defendants. - The amendment allowed did not make in the amended complaint' any other cause of action, than was relied on in the original complaint. The judge belpw had power to allow the amendment and it does not appear that his discretion in the matter was improperly exercised. Order affirmed, with $10 costs.


text:
    James H. Chambers, appellant, v. William H. Appleton, et al., respondents.
    Decided May 16, 1883.
    Appeal from judgment dismissing the complaint on the merits.
    Barnett & Saunderson, for appellant. Douglas Campbell, for respondents.
   Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting. No opinion. Judgment affirmed, with costs, on opinion of referee.


text:
    Patrick Riley, appellant, v. The Mayor, &c. of New York, respondents.
    Decided June 2, 1883.
    Appeal from judgment in favor of defendants, upon verdict directed by the court.
    Charles P. Miller, for appellant. George P. Andrews, counsel for the corporation, for respondents.
   Sedgwick, Ch. J., and Ingraham, J., held that the facts were the same as upon the former trial, and that the opinion of the former general term should be applied (see 48 Super. Ct. 274). O’Gorman, J., wrote dissenting opinion. Judgment affirmed, with costs.


text:
    James Talcott, appellant, v. Walter S. Pierce, et al., respondents.
    Decided June 2, 1883.
    Appeal by plaintiff from a judgment for $1,257.43, in his favor, entered on report of referee.
    Chambers, Baughton & Prentiss, for appellant. Man & Parsons, for respondents.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., and Truax, J., concurred. Judgment affirmed, with costs.


text:
    Clinton G. Colgate, respondent, v. Continental Telegraph Co., appellant.
    Decided June 2, 1883.
    Appeal by defendant from judgment entered on report of referee, in favor of plaintiff.
    Harry Wilbur, for appellant. Betts, Atterbury & Betts, for respondent.
   Opinion per Curiam—Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Judgment affirmed, with costs.


text:
    Horace K. Thurber, et al., appellants, v. William Hughes, respondent.
    Decided June 2, 1883.
    Appeal by plaintiff from judgment entered on verdict of jury.
    Nelson Smith & Leavitt, for appellants. F. Smyth and Almon Goodwin, for respondent.
   Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting. Per Curiam.—The questions in this case were decided in favor of respondent by the general term on the former appeal (47 Super. Ct. 159), and no new questions are presented. Judgment affirmed with costs, and order affirmed with $10 costs.


text:
    William O. Cooke, respondent, v. Theodore M. Leonard, appellant.
    Decided June 2, 1883.
    Appeal by defendant from order directing a reference to hear and determine and from order denying motion to modify the same.
    W. B. Putney, for appellant. E. G. Delany and W. H. M’Dougall for respondent.
   Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting. Per Curiam.—The form of the order directing the reference, the fact that a motion was made to re-settle the order, by.striking some part from it and the affidavit used on the motion to re-settle, indicate that there was no opposition to the order of reference, as such, it should therefore be affirmed. .-It was, however, no part of such an older to prescribe that defendant should produce his book, and the direction “thatdefendants produce and'submit their books of account to said referee on such accounting” should have been stricken from the order on the motion made for that purpose. Order of reference modified, as indicated above, without costs.


text:
    William Hackett, appellant, v. James Webb, et al., respondents.
    Decided June 2, 1883.
    Appeal from judgment dismissing the complaint at close of the case.
    James M. Smith and William Allen, for appellant. Robinson, Scribner & Bright, for respondents.
   Opinion per Curiam. —Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Judgment affirmed, with costs.


text:
    Charlotte M. Wandell, respondent, v. Benjamin C. Wandell, et al., appellants.
    Decided June 2, 1883.

    This is an appeal by defendants from an order denying defendants’ motion for a bill of particulars of plaintiff’s claim. The action is brought to recover damages for the alienation of the affections of the husband of plaintiff by defendants.
    T. Wandell and Jacob F. Miller, for appellants. J. Stuart Ross, for respondent.
   Sedgwick, Ch. J., Truax and Ingraham JJ., sitting. Per Curiam.—Order appealed from is affirmed with costs.


text:
    Dyer Pearl, et al., respondents, v. The Rome, Watertown, &c., R. R. Co., appellants.
    Decided June 2, 1883.
    Appeal from order continuing an injunction pendente lite.

    Turner, Lee & McClure, for appellant. Stanley, Clark & Smith, for respondents.
   Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Opinion per Curiam.—Order reversed with $10 costs, and injunction granted vacated with $10 costs.


text:
    Albert Luyster, respondent, v. William L. Hagedorn, appellant.
    Decided June 2, 1883.
    Appeal from an order denying a motion to vacate an attachment against the property of the defendant.
    A. M. & G. Card, for appellant; Smith, Allan & Smith, for respondent.
   Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Per Curiam.—The order appealed from is affirmed, with costs.


text:
    James M. Tuttle, appellant, v. Richard P. Rothwell, respondent.
    Decided June, 2, 1883.
    Appeal from order, vacating order of arrest.
    James H. Pay and Albert Stickney, for appellant. Abram Kling, for respondent.
   Sedgwick, Ch. J., Truax and Ingraham, JJ., sitting. Per Curiam.—We think the order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Robert J. Gray, respondent, v. Alfred J. Luce, as assignee, &c., appellant.
    Decided December 3, 1883.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.
    Collins & Corbin, for appellant. Jacob F. Miller, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred. Judgment and order appealed from affirmed, with costs.


text:
    The Wabash, St. Louis & Pacific R’y. Co., appellant, v. David J. Phillips, respondent.
    Decided December 3, 1883.
    Appeal from judgment dismissing complaint with costs, at clo.se of plaintiff’s case.
    Charles N. Judson, for appellant. A. H. Berrick and Henry M. Goldfogle, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J. and O’Gorman, J,, concurred. Judgment appealed from affirmed, with costs.


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    Henry G. Goodwin, et al., appellants, v. Leopold Wertheimer, Impleaded, &c., respondent.
    Decided December 3, 1883.
    Appeal from judgment dismissing complaint with costs.
    Kelly and MacRae, for appellants; Melville H. Regensburger, for respondent.
   Freedman, J., wrote: “As to the merits this court has already decided (49 Super. Ct. 101) that the plaintiffs cannot recover against the defendant Wertheimer except upon proof of a demand of the property and a refusal by Wertheimer to comply. Upon the trial now under review the plaintiffs failed to supply this proof and hence the complaint was properly dismissed as to Wertheimer.” O’Gorman, J., concurred. Judgment affirmed, with costs. '


text:
    Myra E. Favor, appellant, v. Anthony W. Dimock, et al., respondents.
    Decided December 3, 1883.
    Appeal from judgment for $528.46 in favor of defendants, entered upon the report of a referee.
    Harry Wilber, for appellant. George Putnam Smith, for respondents.
   Freedman, J., wrote memorandum for affirmance. Sedgwick, Ch. J., and O’Gorman, J., concurred. Judgment affirmed, with costs on opinion of referee.


author: Freedman, J.

text:
    Bernard Hughes, appellant, v. James Campbell, respondent.
    Decided December 3, 1883.
    Appeal by plaintiff from judgment dismissing complaint at close of plaintiff’s case.
    Hastings & Southworth, for appellant. T. C. Bnnever, and William H. Arnoux, for respondent.
   Freedman, J.

—-For the reasons given by the learned judge who presided at the trial, the complaint was properly dismissed.' Sedgwick, Ch. J., concurrred. Judgment affirmed, with costs.


text:
    Ann Cassidy, respondent, v. Peter A. Cassidy, appellant.
    Decided December 3, 1883.
    Appeal from order of reference.
    John Tully, for appellant. Benno Loewy, and E, Arnstein, for respondent.
   Memorandum for affirmance by Freedman, J.; Sedgwick, Ch. J., concurred. Order affirmed, with costs.


text:
    Benjamin L. Luddington, respondent, v. Hezekiah Watkins, appellant.
    Decided December 3, 1883.
    Appeal from order of special term, permitting plaintiff to prosecute this action for the recovery from the defendant of $3,514.54 deficiency in foreclosure proceedings without prejudice to the proceedings already had herein.
    George W. Van Slyck, for appellant. George W. Lord, for respondent.
   Memorandum for affirmance by O’Gorman, J.; Freedman, J., concurred. Order appealed from affirmed, with $10 costs.


text:
    Lawrence J. Callahan, et al., appellants, v. George F. Gilman, respondent.
    Decided December 3, 1883.
    Appeal by plaintiff from order vacating injunction.
    Edwin M. Wight, for appellant. Abbett & Fuller, for respondent.
   Sedgwick, Ch.. J., Freedman and O’Gorman, JJ., sitting. Opinion per Curiam.—Order affirmed with $10 costs.


text:
    Michael L. Doyle, et al., appellants, v. George H. Sharp, respondent.
    Decided December 3, 1883.
    Appeal by plaintiff from order granting defendant leave to serve supplemental answer upon payment of $10 costs.
    Arnoux, Ritch & Woodford, for appellants. Charles E. Whitehead and D. M. Porter, for respondent.
   Sedgwick, Ch. J., Freedman and O’Gorman, JJ., sitting. Opinion per Curiam.—Order modified as to conditions, without costs of appeal.


text:
    Rodert J. Dean, respondent, v. Henry D. Van Nostrand, et al., appellants.
    Decided December 3, 1883.
    Appeal by defendants from judgment entered upon verdict of jury, and from order denying motion for new trial.
    Marsh, Wilson & Wallis, for appellants. Edward S. Hatch, for respondent.
   Sedgwick, Ch. J., Freedman and O’Gorman, JJ.¿ sitting. Opinion per Curiam.—Judgment affirmed with costs, and order-affirmed with $10 costs.


text:
    Campbell Printing Press & Manufacturing Co., appellant, v. Charles R. Purdy, et al., respondents.
    Decided December 3, 1883.
    Appeal by plaintiff from order allowing defendants to amend their answer by setting up a new defense.
    Charles De Hart Brower, for appellant. R. H. Shannon and E. F. Bullard, for respondents.
   Sedgwick, Ch. J., and O’Gorman, J., sitting. Opinion per Curiam.—Order affirmed with $10 costs


text:
    Richard Dixon, respondent, v. Eugene W. Gwindon, appellant.
    Decided December 3, 1883.
    Appeal by defendant, from judgment against them, entered on verdict of jury, and also from order denying motion for a new trial made upon the judges minutes.
    James Dunne, for appellant. Jesse W. Lilienthal, for respondent.
   Sedgwick, Ch. J., and O’Gorman, J., sitting. Per Curiam.—Judgment affirmed, with costs. Order appealed from affirmed, with $10 costs.


text:
    George H. Seeley, respondent, v. James Morgan, et al., appellants.
    Decided December 3, 1883.
    Appeal from order denying-motion for extra allowance.
    E. S. Babcock, H. T. Ketcham, and Q. McAdam, for appellants. Stafford, Graff & Roman, for respondent.
   Sedgwick, Ch. J., and Freedman, J., sitting. Per Curiam.-—The judgment having been, reversed on plaintiff’s appeal and a new trial ordered, the appeals taken by the defendants from the order denying their motions for an allowance should be dismissed without costs.


text:
    Louis Wilken, appellant, v. Philip Braender, respondent.
    Decided December 17, 1883.
    Appeal from judgment dismissing complaint with costs, at close of plaintiff’s case.
    MacKinley & Altmayer, for appellant. Barlett, Wilson & Hayden, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred. Judgment affirmed, with costs.