Reports of practice cases, determined in the courts of the state of New York (Volume 10) online

IM

REPORTS



OP



PRACTICE CASES,



DETERMINED



COURTS OF THE STATE OF NEW YORK



A DIGEST OF ALL POINTS OF PRACTICE EMBRACED IN THE STANDARD

NEW YORK REPORTS ISSUED DURING THE PERIOD

COVERED BY THIS VOLUME.



BY ABBOTT BROTHERS,

COUNSELLORS AT LAW.



VOL. X.



NEW YORK:

JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER,

20 NASSAU-STBEET.

1860.







[Entered, according to Act of Congress, in the year One Thousand Eight Hundred and Sixty,
by ABBOTT BROTHERS, in the Clerk's Office of the District Court for the Southern District
of New York.]



RENNIE, SHEA A LINDSAY,

STCBCOTTPERS AND ELECTROTTPEKS,

81, 83, and 85 Centre-street,

NEW YOKE.



BAKER A GODWIN, PRINTERS,
Siaisau, cor. Spruce Street.



TABLE



CASES REPORTED IN VOLUME X.



PAGE

Alaben a. Wakeman 162

Allen a. Walter. 379

Armstrong, Russel and Erwin Man-
ufacturing Co. a (note) 258

Audubon a. Excelsior Fire Insu-
rance Co 64



R



Baker a. Curtis. . . , 279

Banks a. Taylor 199

Barry, People a 225

Bay State Co., Beach a 71

Beaqh a. Bay State Co 71

Beckwith, Coe a 296

Beizei, Bostwick a 197

Benham, Dickenson a 390

Billing's Case 258

Bliss, Quarry Co. a 211

Blunt a. Mott 222

Board of Supervisors, People on rel.

McSpedona 233

Bostwick a. Beizei 197

Boswell a. Hudson River Railroad

Co. 442

Bowes, O'Brien a 106



Brabason, Casey a 368

Brandt, Brochleman a 141

Breck, Greene a 42

Brennan, Hicks a 304, 420

Brewster, Shaler AHall Quarry Co. a. 464

Brochleman a. Brandt 141

Burrows, Northrop a 365



C.



Cameron a. Freeman 333

Carson, Pegram a 340

Carter, Horsford a 452

Gary, New York Shot and Lead Co. A 44

Casey a. Brabason 368

Catlin a. Cole 887

Chambers a. Lewis 206

Charlick, Hicks a 129

a. Flushing Railroad Co. .. 130



Chave, Leffingwell a 472

Clark, Steinman a 132

Cleveland a. Porter. 40*7

Clover, Glenton a 422

Clumpha a. Whiting 448

Coddingtqn a. Coddington 450

Coe a. Beckwith 296

Cohen's Case.. . . 257



IV



TABLE OF CASES.



Cole, Catlin a 887

Comstock a. White (note) 264

Cook a. Swift 212

Crafts, Sands a 216

Crocker, Gassett a. 183

Curtis, Baker a. 279

D.

Daguerre a. Orser (note) 12

Degen, Rogers a 813

Dickenson a. Benham 890

Dodge a. Dodge 401

Donnell, Robert a 454

Doyle, People on rel., a. Johnston. 294

Durant a. Gardner 445

Dwight a. "Webster 128

E.

Edgerton a. Page 119

Ehle a. Huller 287

Empire Stone-Dressing Co., Farm-
era and Mechanics' Bank a. ... 47
Equitable Insurance Co., Willett a. 193
Excelsior Fire Insurance Co., Audu-

bon a 64

F.

Farcy a. Lee 143

Farmers and Mechanics' Bank a.

Empire Stone-Dressing Co 47

Farrell, Johnson a 384

Flushing Railroad Co., Charlick a. . 130

Francisco, People a 30

Frank, Freeman a 370

Freeman, Cameron a 833

a. Frank 370

French a. Willett. . . 99



G.

Gardner, Durant a Ao

Garrison, Ritchie a 246

, Seeley a. 460

Garvey, Randolph a 179

Gassett a. Crocker 133

Genin, Salters a 478



Genner, Seaver a 266

Glenton a. Clover 422

Gorsline's Case , 2.82

Gould a. Sherman 411

Graduates, Matter of the 348

Gray a. Kendall (note) 66, 343

, People on rel. Demarest a. 468

, Viele a 1



Greene a. Breck 42

Grimm, Hamel a. 150

Gunter, Mahoney a 431

H.

Halbeck a. Mayor, <tc., of N. Y. . . 437

Hall a. McMahon 103, 819

Hamel a. Grimm 160

Hartt a. Harvey 321

Harvey, Hartt a 821

Hastings a. Thurston 418

Henderson, Lynch a (note) 345

Hendricks, Williamson a 98

Hicks a. Brennan 804, 420

a, Charlick. ., . 129



Hoey a. Kinney 400

Horsford a. Carter 452

Howe a. Searing 264

Howell, Masterton a 118

Hudson River Railroad Co., Bos-
well a. 442

Huller, Ehle a 287

Hungerford's Bank a. Potsdam and

Water town Railroad Co 24

Hunter a. Leslie 260

J.

Johnson a. Farrell 384

Johnston, People on rel. Doyle a.. . 294



K.



Kelly's Application 208

Kendall, Gray a (note) 66, 343

Kennedy a. Weed and Wife 62

Ketcham, Peckham a 220

Keyser, Matter of. 481

Kinney, Hoey a 400

Kissam a. Marshall 424

Krautha. Vial 139



TABLE OF CASES.



Labousierre a. New York and New

Haven Railroad Co (note) 398

Lee, Farcy a 143

Leffingwell a. Chave 472

Leopold a. Meyer 40

Leslie, Hunter a. 260

Levy, Sperling a 426

Lewis, Chambers a 206

Lippman a. Petersburgh 254

Lynch a. Henderson (note) 345

Lyon a. Manly 337

M.

Mahew a. Wilson 289

Mahoney a. Gunter 431

Manly, Lyon a 337

Marshall, Kissam a 424

Masterton a. Howell 118

Matter of the Graduates 348

Keyser 481

Pie.. 409

Whitlock 816

Mayor, <fcc,, of N. Y., Halbeck a. . . 437

, People a 144

, People and Taylor a Ill

McButt a. Murray ] 96

McKee a. Tyson 392

McLean, Rogers a 306, 458

McMahon, Hall a 103, 319

Metcalf a. Stryker 12

Meyer, Leopold a 40

Mills a. Van Yoorhis 152

Minor a. Webb 284

Moncrief a. Moncrief 315

Mott, Blunt a 222

, Union Bank a 372

Murray, McButt a 196

Mutual Life Ins. Co. a. Ross.. (note) 260

N.

New York Car Oil Co. a. Richmond . 1 85

New York Ice Co. a. Northwestern

Insurance Co 34

New York and Liverpool Steamship

Co., Young a 229

New York and New Haven Rail-
road Co., Labousierre a. .(note) 398

, Schanchan a 398



New York Shot and Lead Co. a. Gary 44

Northrop a. Burrows 365

Northwestern Insurance Co., New

York Ice Co. a 34

O.

O'Brien a. Bowes 106

O'Connor, Rice a 362

Orser, Daguerre a (note) 12

Osgood a. Whittelsey 134

P.

Page, Edgerton a 119

Patterson a. Perry 82

Peckham a. Ketchum 220

Pegram a. Carson 340

People a. Barry 225

(on rel. Demarest) a. Gray . 468

(on rel. Doyle) a. Johnston. 294

(on rel. McSpedon) a. Board

of Supervisors 233

a. Francisco 30

a. Mayor, (fee., of New York . 144

a. Shay 413

and Taylor a. Mayor, <fcc.,

ofNew York Ill

Perry, Patterson a 82

Petersburgh, Lippman a 254

Porter, Cleveland a 407

Potsdam and Watertown Railroad

Co., Huugerford's Bank a 24

Q.
Quarry Co. a. Bliss 211

R.

Randolph a. Garvey 179

Raymond, Toplitz a 160

Rice a. O'Connor 362

Richmond, New York Car Oil Co. a. 185

Ritchie a. Garrison 246

Robert a. Donnell 454

Rogers a. Degen 313

a. McLean 306, 458

Ross, Mutual Life lus. Co. a. .(note) 260

Roth, Schuhardt a 203

Russell and Erwin Manufacturing
Co. a. Armstrong (note) 258



vi



TABLE OF CASES.



S.



Salters a. Genin 478

Sands a. Craft 216

Schanchan a. New York and New

Haven Railroad Co 898

Schausenburgh, Sieff a. 477

Schuhardt o. Roth. 203

Searing, Howe a 264

Sea ver a. Genner 256

Seeley a. Garrison 460

Shaler & Hall Quarry Co. a. Brew-

ster 464

Shay, People a 413

Sherman, Gould a 411

Sieff a. Schausenburgh 477

Sperling a. Levy 426

Steinman a. Clark 132

Stryker, Metcalf a 12

Swift, Cook a 212



T.



Taylor, Banks a. 199

Thurston, Hastings a 418

Tiffany a. Williams 204

Toplitz a. Raymond 160

Tyson, McKee a 892



U.



Union Bank a. Mott 872



V.

PACK

Van Voorhis, Mills a. 162

Vial, Krauth a 189

Viele a. Gray 1

W.

Wakeman, Alaben a 162

Walter, Allen a 879

Wasserman a. Willett 68

Webb, Minor a. 284

Webster, Dwight a 128

Weed and Wife, Kennedy a 62

White, Comstock a (note) 264

Whiting, Clumpha a 448

Whitlock, Matter of 816

Whittelsey, Osgood a 134

Wickelhausen a. Willett 164

Willett, French a.,. 99

a. Equitable Insurance Co. 193

, Wasserman a 63

, Wickelhausen a 164



Williams, Tiffany a 204

Williamson a. Hendricks. 98

Wilson, Mahew a 289

Y.

Young a. New York and Liverpool

Steamship Co 229



INDEX



CASES REPORTED IN VOLUME X.



A.

PAGE

Abatement by civil death 870

Mode of continuing action on 879

Accommodation acceptance by officer of corporation not binding 47

indorser for corporation may set tip usury 24

Action when to be deemed for tort, and when on contract 206

Affidavit of Merits alleging payment merely in general terms not sufficient 260

of ownership of property by married woman 254

Allowance may be made on dismissing complaint 318

Amendment of injunction which should not have been issued should not be

allowed 284

of pleadings, adding new cause of action. Terms on granting 162, 372

by the court, of case agreed on by parties 60

of affidavit in supplementary proceedings, as to the parties to the judgment,

cannot be allowed.. 62

what is a new cause of action 372

power of referee as to '. 372

of statement for judgment by confession 392

of attachment and undertaking , 424

of complaint 471



Answer to complaint for slander, what is j ustification 132

that defendant is civilly dead is demurrable 870

consisting of mere denials, not demurrable 862

to be liberally construed 362

in action against carrier of passenger 442

Appeal from Surrogate. Kequisites of notice of. 190

from justice's court. Proceedings on 212

Necessity of demand before suit will not be inferred on 185

lies from order refusing to set aside irregular judgment 884

does not lie from order for allowance in divorce suit 315

from order setting aside judicial sale 458

the court will not go behind order appealed from, to determine its regu-
larity 287

Security on, in the Marine Court 452

from order denying leave to amend 478



Vlll INDEX.

PAOK

Appearance of defendant not served, allowed 407

Arrest what is removing and secreting property 139

what is fiduciary capacity 819

by virtue of Speaker's warrant is not escape 164

Motion to discharge from, in action for malicious prosecution 411

Discharge from, on delivering property to receivers 422

Assessment Requisites of petition to vacate 481

Assignee for benefit of creditors protected, though assignment is set aside 197

Attachment debt due by foreign corporation to non-resident cannot be attached.. 193

Grounds for allowing 890

Measure of sheriffs fees on 289

mode of levying and priority, and what may be levied on 82

use of affidavits on motion to discharge 390

Attorney power of court in examining applicant is exclusive 848

when not liable to guardian ad litem for the disbursements of the latter. . . 40

Attorney- General may sue to restrain municipal corporation 144

B.

Bail Extent of sheriff's liability as. 12

not allowed on habeas corpus out of the county where warrant issued 282

Bankruptcy effect of discharge on foreign judgment 246

BiUs of Exchange accepted by corporation 47

Bonafide holder of bill. "Who is 47

Broker Liability of, for spurious stock 220

By-Law of corporation authorizing acceptance of bill 47

C.

Carrier of passenger, may restrict liability 422

Case connection of statement of charge therein 60

when may be resettled 887

Cause of Action for death does not arise where death was caused without the

State 71

for reimbursing expenses of public meeting usurped by defendants 223

Charge in action for violating pilot laws 30

corrected in case 60

Civil Death cannot be pleaded 370

Complaint in action to set aside assignment 418

in action against sheriff for default in execution of process 99

in action to charge directors of a corporation 445

in action to charge stockholders 229

Requisites of, in action for slander 1

in creditors' action must set forth debts 66

Requisites of, in an action to foreclose a railway mortgage 296

imprope r ly joining causes of action cannot be sustained 2S7

on promissory note 134

for malicious prosecution .' 141

referring to an account 143

in action to set aside judgment 150

Consignor Balance in favor of, is attachable 82

Constitutional Law admission of attorney to practise 348

Continuance of action, how effected 379

Contract not to interfere with business of another. Effect of . . . -. 264

cannot be reformed for mistake, except mistake in instrument 84

Corporation Authority of officers of , ^



INDEX. IX

PAGE

Corporation liability of trustees ........................................... 211, 464

- liability of stockholders ................................................ 229

Costs Defendant's judgment for, to be set off against plaintiff's recovery. . . 804, 384

- Witness fees, how proved ............................................... 804

- w'aen allowed against owner in mechanics' lien .......................... 98

Counter-d&im Kequisites of .................................................. 862

Wien an eviction may be set up as a ................... v .............. 119

Creditor's Action to set aside assignment with preferences made by limited part-
nership, must be brought in behalf of all creditors ........................... 42

- requisites of complaint as to alleged debts ............................... 66



Damages Mtasure of, in actions against sheriff for escape ................ note, 12

- Measure of, in action on his liability as bail .............................. 12

Death caused without the State not a cause of action here ...................... 71

Default Terns of opening ................................................... 64

Defect of Partie objection that creditor does not sue on behalf of others is not

that of a mert defect of parties .............................................. 42

Defence of former adjudication not to be excluded on opening default .......... 64

Demand when Accessary before suit ................................... . ...... 185

Demurrer to on^ of several defences .......................................... 246

- when not b be deemed put in in good faith ............................. 134

- does not acpit all the allegations where they are inconsistent ............ 370

- cannot staW defect of parties ........................................... 296

- does not lieto answer, consisting of mere denials ........................ 342

- Omission to?ubscribe ................................................. 287

Denial in return to writ of mandamus ....................................... 233

Discharge in bankruptcy, effect on foreign judgment .......................... 246

- of insolvent, that debts are within the act .............................. 409

- not to be impeched collaterally . .................................. note, 258

Discovery and Inspection Kequisites of application for ......................... 340

- - when to be ordered ............................................... 129, 130

Divorce second actionhot maintainable ....................................... 450

Docket of judgment njist be correct in order to sustain supplementary pro-

ceedings .......... .\ ..................................................... 62

Dower when barred byforeclosure ............................ -. .............. 152

- when widow musfielect. . . ............................... 401



E.

Election of trustees of relipous corporation 321

Election of Remedies unde\Code 206

Escape Arrest on Speaker'\ warrant is not 164

Evidence What is, of marri^ woman's title to separate property 63

What is, of organizatifa of corporation under general law 185

What is, of Surrogate'^ order 431

What is, of official oath, 439



Execution against the person,yhen it may issue 103

a mere employee in chaie of property cannot estop owner by consenting

to a levy \ 185

against the person, when fe may issue on judgment of the Marine Court,

docketed in county clerk's offic\. 319

Executors and Administrators poWs and duties 199

what claims are referable. A 216-

Extension of time Order granling,Viay be served by mail 203



INDEX.



F.



PAGE



Factor when balance in his hands is subject of levy under attachment 82

Foreclosure what is excuse for non-payment of interest 128

wife of mortgagor and of owner of equity of redemption, when necessary

parties 152

of mortgage on lease not restrained because the term was short 44



Formfr adjudication is not an unmeritorious defence 64

Form of complaint in action against ex-sheriff for neglect to deliver prisoner to

his successor 99

of complaint on promissory note 184



G.

Good-will Sale of, does not pass right to use vendor's name 264

Guardian may pay oif mortgage 199

appointed in another State cannot appear in an action here. 806

Guardian ad litem his remedy for disbursements 40



H.

Habeas Corpus Prisoner not committed cannot be discharged on 282

Highways What obstruction of, is a nuisance 366



I.

Indictment What omissions in, may be disregarded 418

Infant cannot appear by foreign guardian 806

how to appear on petition for sale of property , . 816

Injunction not to be granted to try right of office in religious corporation 821

should not be granted to stay foreclosure , 44

when may be granted, service of, neglect to file papers 472

not allowed to restrain legislative action, but only exeutive 144

not granted to restrain suits 284

Insolvency facts throwing suspicion on application for dischrge 257

insolvent who has made assignment for benefit of ceditors must include

his resulting interest in possible surplus, as assets , 258

of prisoner no defence in an action against the sheiff as bail 12

what debts are within the insolvent act 409

Kegularity of notice of order to show cause in 468



J.

Joinder of Action* 287

Judicial Sale Defects of title on 806, 816

Terms of vacating 306, 458

distribution of surplus when owner is dead 400

Judgment for defendant for cost^j, where plaintiff's ?covtery does not carry costs,

how entered 804, 384

of Marine and Justices' Courts, effect of docking 819, 837

when an action to set aside may be maintaied 150

for costs to be set off, how entered 884

by confession, sufficiency of, statement for, 392

obtained by collusion, opened 407

on dismissal of complaint, how entered. 420



INDEX. XI

PAGE

Jurisdiction of state court in action for chattels in bonded warehouse 196

of Marine and Justices' Courts 431

Justices 1 Cbwrt waiver of trial by jury 452



L.
Landlord and Tenant when eviction is a defence to rent 119



M.

Malice how to be alleged in pleading 1

Mandamus requisites of return 233

peremptory writ must be denied if relator asked too much 233

Married Woman what evidence is sufficient to show her title to separate property 63

Mechanics' 1 Lien Costs in, when allowed against owner 98

Parties in, who is owner 179

Mistake in contract, what is ground for reforming the instrument 34

Mode of Trial where both damages and specific relief are sought 34

Motion for trial by jury, when to be made 106

for injunction. Power of it to grant relief may be inquired into on 321



K.

Ne Exeat on what grounds allowed 422

New York City construction of ordinances relating to making public contracts... . 144

Next Friend Eemedy of, for disbursements 40

Notice of motion founded on irregularity. What is sufficient 301

Nuisance Action for injury done in abating 865



O.

Officer when may recover salary without having rendered actual service 439

certificate of a board or body of officers sufficient if signed by a majority. . 288



P.

Parliamentary Law Speaker's warrant 164

Parties in action for lands there cannot be several plaintiffs claiming adversely. . Ill

in action to restrain execution of public contract 144

in foreclosure 152

in mechanics' lien 179

Who are necessary, in trustees' action for instructions 296

in creditor's action to set aside assignment with preferences made by limited

partnership 42

Partnership Name right to use, discussed 264

Petition which may be foundation for arrest must be verified 208

to vacate assessment. Eequisites of 481

Pilot Laws what is " piloting ?" 80

Pleading in action for slander 1

an ambiguity in a material allegation is to be taken against the pleader. . . . 71

in action by a joint-stock company or association : 204

when leave to answer, on overruling demurrer, will be denied 134

inconsistent allegations not allowed 478

inconsistent demand of relief not allowed 445

in justice's court. Definiteness of 837



Xll INDEX.

PAGE

Privileged Communication What is 1

Promissory Note liability of surety who signs as joint maker 868

R.

Railroad Company Foreign, not liable for not fencing 898

Railroad Mortgages Construction and effect of. 296

Receiver when may be appointed in an action for lands Ill

Reference what is a long account 118

power of referee to amend does not extend beyond immaterial variances. . 872

when may be ordered on the ground of existence of a long account 883

Religious Corporation Elections in 821

S.

Service Proof of, on conflicting affidavits 260

by mail, of order extending time 203

Sheriff extent of his liability as bail 12

liable as bail may surrender 256

is liable for not delivering prisoner to successor 99

fees on attachment 286

not liable for prisoner taken by virtue of Speaker's warrant 164

Special Session Jurisdiction of 294

Specific performance rarely to be decreed where there are defects in title 152

Statute of Frauds does not apply to exonerate a surety who signs as joint maker 868

Stay of Proceedings granted ex parte, made valid 447

Summons Service of, by party a mere irregularity 260

Subscription of, may be printed note, 260

Supplementary Proceedings in what cases application of property may be or-
dered ' 103

Duty of receiver in 197

cannot be maintained on an affidavit which does not truly describe judg-
ment 62

may be taken, though the return of execution was at plaintiff's request. . . 426

examination of third party may be had before return 460

injunction against third party allowed 460

Surplus on judicial sale of decedent's estate, how distributed 400

Surrender by sheriff who is liable as bail 256

by bail after expiration of twenty days, not allowed 279

Surrogate Jurisdiction of, as to guardian's account 199

Order of, for payment of debt, when may be made 431



T.

Taxes Petition for enforcement of 208

Time Computation of. 468

Trial on trial before a judge without a jury, the judge cannot order questions of

fact to be submitted to a jury 106

two by different modes, not allowed in one action 34



U.

Undertaking when void for want of consideration 454

Effect of neglect to file 472

Usury still a defence as in favor of one liable as indorser for a corporation 24



INDEX. Xlll



V. PAGE

Variance between allegation of indebtedness as accrued to plaintiff, and proof

of indebtedness accrued to plaintiff's assignor 872

Verification by each of several plaintiffs not united in interest, necessary 66

W.

Waiver of objection which should be taken by demurrer 183

Appeal is not, of stay of proceedings 448

of trial by jury in Justice's Court 452

Will Interpretation of, in reference to election of dower 401

Witness not disqualified by conviction for petit larceny 418

Writ of Error does not lie to review order quashing an indictment 225



ABBOTTS'

PRACTICE REPORTS



NEW-YORK.

VIELE a. GRAY.

New York Common Pleas / Special Term, December, 1859.
DEFAMATION. COMPLAINT.

To say of a man, after a libel has been published, that he is the author of it, ia
actionable per se.

Where one of a board of public officers, at a meeting of the board while a reso-
lution was pending, recommending the employment of the plaintiff declared
that he knew that the plaintiff was the author of an obscene caricature, which
had been published to ridicule one of the official acts of the board, and which
was also a libel upon individuals,

Held, 1. That the charge was pertinent to the subject under discussion, and
was conditionally privileged.

2. That, to entitle the plaintiff to maintain an action for defamation, he must
establish that the charge was made without reasonable or probable cause.

3. That the defendant having declared that he knew that the plaintiff was
the author of the caricature, without indicating what he relied upon for making
the assertion, an averment in the complaint that the plaintiff was not the au-
thor, and had no complicity therein, was sufficient, prima facie, to show that
there was a want of probable cause.

Where the occasion upon which the words are spoken repels any presumption of
malice, and proof of it is necessary to maintain the action, it is sufficient to aver
that they were spoken maliciously, without setting forth, in the complaint, the
facts and circumstances which show the existence of malice.

What is meant by the term malice, explained ; and the dictum, in Brommage a.
Prossor (4 B. <fe (7., 247), that there are two kinds in actions for defamation, and
a distinction between the word in its popular and its legal sense, declared to be
erroneous.

VOL. X. 1



ABBOTTS' PRACTICE REPORTS.



Viele a. Gray.



Demurrer to complaint.

The action was for slander. The facts are stated in the opinion.