The New York Herald Newspaper, June 5, 1854, Page 3

' DECISIONS, Common Pleas—Siencral Term. Hon. Judges Ingraham (P. J.), Daly and Woodrufl. A ‘DECISIONS. aot nor Sanderson hres, 04, the New York and Lard Company-—IsaRawan, P.. J his action is to recover damages for the death ofa ae nid, produced by the carelessness of persons in the dgment, leaving 3 i} japloy of the defendants. The action is brought secute their appeal and obtain 4.con- Srengetnt Uso, Timeless statute in question from the Court years. . peerbarbaod accident. SBoiwas taken to the hospital, and dissented, comin a The evidence shows that the car lerson, et al—Inonatam, F. J— driven than ; that immediately against a surety for rent, Mp cowriot ling.the agcident the driver of the car was | the lease is furnished to the Court, by which we foking its direction different from that in whieh the terms of it; and the only informa was , and that if he had noticed the child ve of the conditions statement ihen the did, the accident might have | the counsel that the lease cont a lanes pte. avoided. on the part of the defence | vidin; ee eee ee jaa offered to explain or excuse any ap) meg> | were rebuilt, if they were destroyed by ne oe enert x the driver. evidence on | evidence shows that the building was destroyed by branch case was to some extent fire on the 24th June. Supposing this statement of }, and was.submnitted by the Judge to the jury | the condition of the lease to be:true, the rent ceased y With actions as to | on that day, and the landlord was entitled to re- effect of negligence on the of the driver, ag | cover for the rent from the 1st of May to the 24th of as on the part of the .. In to the | June, ati on the quarter day, lat of August. nts, there can be no doubt that the decision | An eviction and a surrender are both eet up in the jary a8 to the negligence of the driver is con- | answer, by way of defence to the claim for the Au- i" wpm tht pola it. In regard to the child ust quarter,and part of the November quarter. 1 the same rule must be . fo surrender is proven; a proposed surrender was re are cases where permitting a very young child | talked of, but not executed, and this lease ald in the streeta without an attendant is of | only be surrendered by writing or by one aot of belf evidence of negli; sufficient to defeat an | law. Nor do I think the evidence | -~svlon ion of this kind; but these cases are of children | finding of an eviction; the rev’. ,-7, Warrants the Gch younger than this one; and although there | mence until the premises ar was Het, 0 tom- 1g negfigence in permliing uch a ch to be | precise terms <P iy asyanene © Toul Br bat the e in streets of a city, unattended, still, ot | but it‘: evident from, “at Were doom nat appear; age, Lam not propared to say that, 29 matter of | mises were not pee, we testimony that the pre- iw, such ligence is to be presumed. On the | November, 1gs" -“OPehy finished to the lst of nf 1 think it ia properly to be left to the jary is nothing * wv» Jenni 80 testified, and there soy nether, ender the poll clreumstanceg ot | ied,» 0 cntrnaa nas ay at Notary oe dl i pe seal res the | was eyable, and neither Phelpa ta at such an age was or was not of ficient judgment and discretion to avoid icidents, to which she might be exposed in cro- ig the streets of the city. The defendants r noneuit on this ground, and also for *” ence of any pecuniary damage, wh’ -ue want denied. The motion was proper ach motion negligence, because that was » J denied ob ry; and as to the want of pr 3 Sarna ‘at any rate, there m: vot ol 2 , a» be nominal d le hether the ay might * ve more, without sctual nch of this case be er on another 5 fol. 41, a question was cae hyo whether there were any 3 h the ?_,° Cal, which was admitted, and to quest} efendants’ counsel ex 5 cepted. Where vn was the negligence of the defendants “ vir servants, it certainly was admissible to sre whether the construction of the car was th as to tend to occusion the accident. If the rw had uo brakes by which it could be stopped \ it be shown as evidence of carelessness. if i mo guards, and if the use of guards ould havé prevented it, such evidence was pro- y Faid before the jury for their considration. it ia said that the complaint aid not warrant such inquiry, but the complaint did charge the ‘ither on the defendauts or their agents; and x gh that negligence, as proven, mainly con- Batod in the acts co! the driver, etill there was ample pom under that charge to add any facts of negli- rence on the part cf the defendants in the construc- ion of their cars, which would have aide? incausing injary. The third Seorteted the defendants is, the Ji erred in eharging the jury ‘that the atiff could recover whatever pecunia: pext of kin (the mother) may be sopnoees to incur ‘@onsequence of the loss of the child.” This was lified by mating Alias the jury were to give what they should deem and just with reference to the niary injury resulting from the death. The edge tiso excluded all’considerations arising from eyes yd the child, or the anguish of the ent, and confined the rule of d: exclu- ely to indemnification for a pecuniary loas. The cts under which the recovery in this action is ught, are ll Boge p. 575, and es see Pp. 588. They provide that the action may be maintained nD mages recovered whenever @ case occurs n which, if death had not ensued, the injured could have maintainéd an action. The nviple of liability by this section is made the we as if the injured party had survived acci- it, and had brought an action for the re- hedion by the in for such injary. In such an ired party it would not for a mo- mnt be pretended that it would be necessary fora very to show that any actual pecnniary loss ould be proven. On the contrary, the mere proof trai pa and that it was occasioned by the de- ndants’ negligence, would be safficient to sustain yerdict for such damages as a jury might award. a woved fbi loss the Teeovery te $5,000, and provides “that the jury give such damages as they may deem a fair and compensation with reference to the pecuniary ries resul from such death, to the wife and it of kin of deceased person.” I cannot sap- e that the Legislature intended to confiue the nages in such case to proof of actual pecuniary Buch a supposition would render the law nu- ory. The statute was intended to give damages ive losses, and not for what could ve n; and to meas proof of such loss would be ly to obtain the opinion of witnesses in such a Meestion. instead of the opinion.of a Judge. Iam the opinion that such was not the intent of the tute, thatthe rule in the act is given to the uy to hase them after they have before them the Iip.and dependence ot tn Paro aty hip, and. dependence of the al ; cegnte. pkg gclsp from the deceased, apy,) and facts of this nature, in formin; ir opinion of what the ee loss of the nex! :kin is under sich circumstances. When the @ge gave them the words of the statute as the of damage, he certainly did not err, and when told them the damages were to be what the eecond section of the statute, as amended, limita - . a8 liable on that quarter for anything. Sesnings appears to have been negotiating for a lease at the same time that Phelps was negotiating for a surren- der, and he obtained possession of the key at a time when all were prepent and it may be presumed, with their ascent; all these negotiations, however, appea to have failed. An eviction of the tenant is au in terference with his pogsessien of ‘the premises, or some part of it, by which he is deprived of the us of it without his assent; bat where the tenant i resent at the negotiation for the premises, and be) not object, but at the same time is proposing @ surrender, a Nspetratye under such circumstances and particular! ly before the building was finished, could hardly be considered an eviction. But even admitting that for the time during the occupation of the premises by Jennings, Phelps is to be con- Siaered, as evicted by the landlord, such eviction only suspends the rent during the continuance of the eviction. The evidence shows that Jennings bas been removed from the premises, and that they | are unoccupied, and pa soled that the evic- tion is at an end. The plaintiff's right to the rent up to June 24 appears, therefore, to be a valid one, and I think should have been allowed on the trial. The defendant urges that the transac- ticn between Phelps and Ogden amounted to a sur- render. There isnot evidence to warrant sucha conclusion; but if it were proved that there was a legal surrender, still that would not affect the plain- tiff’s claim for the rent of the portion of the quarter previous to the fire. It is said that such a surrender ‘was an alteration of the contract, by which,the sure- ty was discharged. It is a sufficient answer to this objection to say that no legal alteration of the con- tract could be made, extept in dsin, f and the pro- Posed alteration was never completed by the signa- jure of the landlord to the surrender or his accept- ance of it. The defendant also objects to this ap- peal, that it cannot be taken tothis Court until after an appeal to the General Term of the Marine Conrt. | Our construction of the statute is the reverse of that | proposition, viz.: that an appeal to this Court can only be taken from a judgment of a single jus- | tice within twenty bed after the rendition of the judgment, and t no appeal from the judgment of the General Term will lie to this | Court. We feel some hesitation in deciding that the | judgment must be renewed, because the docu- | mentary evidence before the Court below is not fur- niched to this Court with the return, and it is only because the counsel on both sides have stated the conditions of the lease that we have examined the ' points submitted. It is important that the Court should have all the testimony, in order to properly understand the reasons for the decision below. From what is farnished to us, we think the tirat item of the plaintiff’s claim should have been al- lowed. Judgment reversed. Tne plaintiff may elect to havea podement for the rent of the pre- mises to the 24th June, with interest from the lstof | August, 1853, on filing such election with the Clerk, and costs. Ellis vs. L & Steiner. Inonauam, F, J.—The affidavit on which the attachment was issued was sufficient. Itestablished the debt, that it arose on | contract, that the defendants were packing up their | goods, and had tald the plaintiff they would soon be | beyond the reach of an execution. The finding o the Justice upon the amount of work done is con- clusive, and there is no reason for interfering with it. The same remark applies to the effect of the ad- } missions proved by some of the witnesses that Mrs. | Ellis only claimed $7 74, or admitted that to be lance. He has rejected that testimony, as not tisfactory. One reason given for it is that the witnesses spoke bad English. This reason cannot be sanctioned. It is the duty of the Court, if the Witnesses cannot make themselves understood in English, to require an interpreter,and not to receive testimony in a Jan; that renders doubtful what intended by the witnesses. There was enough the case, however, independent of that fact, warrant the finding of the Justice on that point. The Justice erred, however, inthe amount. The amount of plaintiff’s claim, as proved, was $64. Miss Griggs proved the payment, by defendant of $7,and Levy proved the paymeiits by himself of to incur by the deatu of $11 12—making $1818. This leaves a balance of ther may be weponed the child, he bef ld them that the damages were be a sum which, in their opinion, would be the uniary loss of the next of kin. Any other con- ction would entirely destroy the intent of the » Which was to give to the next of kin a bt of action for an injury, which the injured per- m would have had, had not the injury resulted in er death. And we cannot accept any other con- usion as to the policy of this law. than that it was we pded to compel persons and corporations engag- in a business which endangered the lives of the tizens, to be more careful than had been the case fore ite pieage, and by affording a redress for me inderion, Weleh did not exist before, to punish them for negligence. Such an intent is evi- wnced by the 2d section of the act of 1849, which inflicts upon the guilty agent or servant of a com- y, punishment for the same offence for which es may be recovered. In the construction acte passed evidently with the intent of re- pairing from railroad corporations, as well asothers, Care in regard to the lives of travellers and reons passing through the streets and highways, is not the duty of courts to adopt views which id tend to render such acta nugatory and enable olaters of them to escape with impunity, as was so m the ease before this ite was enacted, but the contrary, to give the statute effect by adopt- the evident intent with which it was passed, and holding those who ne; ntly destroy the lives of jird persons for the consequences of wher) it it is said that the damages are » ‘The amount awarded by the jury was 300. A slight excess in the amount under circam- inces of the kind which give rise to such an action ould not justify a reversal of the judgment, and ere tle amount is resting mainly in the discretion the jury, although bly awarded a sum g an the court might have granted if the case d been tried without a jury, su ot warraut a new trial. The 2, have intended to d an ample compensation for the loss, still al- though the amount of the verdict is large, it does ot afford evidence of prejudice, or partiality, or cor- iption, and if not, there is no ground for granting A bew trial becanse the damages are large. My con- sion is that the icdgment should be affirmed. Woopxurr, J.—The evidence relating to the con- itton of the car, to which ol was made on lal’ in this case, was, I think, admissible upon this reund, (even conceding that upon a tice con- jicn of the complaint herein the Plaintiff was roof of Begligence of the driver in the thereof,) viz.:—What would be prudent nd careful in the management and driving of a i constructed car, amply provided with brakes 'y which it could be stopped in due time, and with rds to pesrent injary to persons in case of acci- nt, might be very imprudent, careless, and even cklees ing ‘& car ill provided with brakes d expecially in the streets of a city, here numbers are constant y crossing and re-cross- he, Acar of the latter description should be driven more elowly and cautiously. In respect to the tle of demages in a case like the present, I am not utisfied that the latitnde given to the Jury in the harge in the present case ia warranted bi true struction of the statute under which the anit is an excess docs ovght—although the words of the statate were | to the Jury, they seem at the same time to ly [ee fie damages Mgnt | 4 ing wi the mother | may be supposed to incur ; (1) and I think it | no means clear that—when the death of | child of six years of age is contemplated solely | ith reference to the pecuniary injary resultii om such death to the next of kin”—it can be | jat such a death has occasioned any damage; and ho” the only next of in, had contracted a se- | bbe atiy p Tt is not eaay to perceive that the | rok er young and dependent offspring could sion pecuiiary to her beyond, perhaps, the pense of medical sttendance aind buttal expen borne by her. The construction e maa not clear hyo ppored by some to have been only intended for | ndewuity of those whose splations to the per- | lly where, as in the present case, the mother, | this $45.82. Under any view of the evidence, the judg- ment should not bave exceeded thatsum. Judg- ment reduced to $45 82, and affirmed for that ee and $2 50 costs below, without any costs of appeal. ‘Bissell va. Dean—Inoranam, F. J—The sam- mons was sufficient; all that is required in regard to the cause of action in the summons is a statement to show that it was for a cause of which the court had Jurisdiction. This is answered by an allegation of work and labor for services rendered, or, as in this case, for profeasional services. Either would be enough to show that the claim arose upon contract, 2. The evidence was sufficient to estal & prima facie case of indebtedness on the bankrupt proceed- ings. The Clerk from the United States District Court Clerk’s Office produced the papers upon which, as he states, the detendant obtained his bore and which were conducted by the plain- tiff as his attorney, and the value of his services was proven by another witness. So far, therefore, as the evidence was requisite for taking the inquest, it was sufficient to establish a prima facie case against the defendants. The affidavit of the defendant shows, as an excuse for suffering, the default to be taken, that ne had paid for the plaintiff's services in the bankrupt proceedings, and suj poeed the J arp claima to be. for the fee oa the motion, which he did not intend to dispute. The plaintiff denies that he has been paid, but admits the receipt of $20, claiming a right to the balance for his services. The other services which are set out in the plaintiff's affidavit cannot be available in this ap, » because they form no ground of reco- very upon the trial. According to the plaintiff's statement, he has received on account of the bank- Tupt proceedings $20, which was not credited upon the trial. The excuse for not appearing was suffi- cient, and the fact that he was not credited with $20 paid, shows that injustice has been done in the judgment rendered below. I think, therefore, it | should be opened and a new trial ordered, but the intiff should be paid the $10, which the defend- | ant admits to be due, and the costs of the court be- low. Upon payment of these sums within ten days, the judgment is suspended and a new trial ordered. ‘The time of the trial to be on the 14th of June at the opening of the court. Galonpeau vs. Ketchum —tIxaranam, F. J.— Whether or not the defendant agreed to receive the note in payment, or to be accounted for, was a ques- tion depending on contradictory testimony, within the rovinee of Court below to decide. The plain- iff 's evidence shows that it was received in pay- ment, while the evidence for the defendant and the | receipt, which properly states the contract between Tho has adopted the latter, aud we are not to interfere with the judgment. I lay out of view the evidence of representations made by the and as to the goodness ef the note, and hia nowledge that it was Pong when the maker testifies that at the he was unable to pay it, Such @ representation, if false, rH to vitiate the }: A sic warrants a contrary decision. at libert was enon; tract between the parties. If the plaintiff affirmed that he knew the note to be , when in fact it was not, even although the plaintiff had no knowledge of the maker's insolvency, it was as much a false Tepresen- = = if that rey J — known at the time. no materiality in juestion Ketchum ascertained ‘about the note." Whetar nt discov@red it to be bad or not was immaterial, Prescott testified ly that it was not the time. There pecans for rev judgment. Judgment ed. fore Leberthon es ‘was nothing in proof bef case, to show that the notes isposed by Stewart had not tohim for value, One note was payable to his order, and one to the order of the maker and endorsed by Stewart, and he testi- fies that the notes passed through his hands, and that he obtained nat money on them from Hirst. If | ity when id to Stewart, it would be immaterial at what Fite Btewart disposed of them. In addition to this Hirst testifies that Stewart brovght him p certificate from the defend: , " sur: phoald be armed. ‘or decision of the authoriz- ontract between inpthe defendant to ene an: mude r the contract, for » valid, and ranted the conclusion of th Sustice the! She plain- tiff intended to pay for, or allow for them, out of the rent. The aubsequent. Pivenatigliats without de- ducting, although a r for the consideration of the Justice, was not conclusive against the defend- ont, or a waiver of claim for such repairs. The judgment should be affirmed. Mulhernvs Hyde.—InGRana, F’. J.—The Justice returns that the defendant did not appear on the re- tarn day or the d day. defendant default in not, Jector of" this port; it ia not for the plaintiff now to a “4 of Ja_the or dtherwise, it fe. sorta Sam rn tren ra inepaisincey: ba a a tit plaintiff seeking to" a eantract, gives. aome evidence to the trary. ‘nd sispoder of the objection that deiendant did not prove that the captain, gave the ‘bond when’ the véssel was ; In my the. should be reversed, and ing & Lg tei ethan y secad tains eee ee ie odo gg seni ry » noth in it to change ke eal Tignes of the h pero —— was General’ rer austria tin Ontos Da, shows no excuse for his a] q ‘We can never sanction a practice that a eondant eG tne Sane Tete and his counsel may absent themselves . voaained itfront matarit’ of the note in conrt-on the day of trial, and then offer as an excuse | {ucstion, reveived it fromthe | seq and exchanged. other engagements for sett g agide the judgment. | Sere ig Gate Ae ©, «0f the same. amount, and Tf such is establcy <4 as the law of this court on ap- red ites ‘of... There was no evidence that, peals, vey fow judgments can hereafter be recover. | St The M0 ©. sais exch they notice of edi", Justices’ court in this city Shat wa should ret wy s4 zen between the fonda and the payees, calle . Judgment af } So, ante existed, whic rr ae DOD. 9 CTEM, PARP ' hem sufficiently proved,) which rendered the Rote “teliens vs, Myers—Woovrury, J—The of the Oode of Procedure. was to simplify tive rales of pleading, and practically dispensing with techni- cal rates and forms, and useless verbiage, and to in- ‘tro@uce a system in which it should be only neces- to state the substantial matter of complaint. unless it has been done by section 162, the Code ‘nowhere dispenses with a statement of the facts “which, upon the trial, it is for a plaintiff to prové in order to make outa cauee of action, Liberality and freedom, as well as brevity and con- ciseness,are allowable; but looseness and uncertainty are nowhere sanctioned. First, then, it was neces- sary before the Code, in declaring on a promissory me against the maker, that the plaiutiff should aver the making of the note—the promise contained therein or implied thereby—the facts which consti- tuted the plaintiff the holder, promisee, or entitled to enforce the promise, and the breach of romise contained in or implied from the making of he note. These were all matters of substance, and indispensable to a good declaration, and such mat- ters are not dispensed with by the Code, except so far as the section above referred to (No. 162) has introdnced-a new p! Tested by these rules, the complaint in this case appears to me defective. It consista of an averment that the defendant and delivered to the plaintiff the promissory note, of which a copy is set forth, and that it is payable to the order of the plaintiff, and endorsed by him ; “that there is due and owing the said plaintiff the said sum of $204 67, with interest from the second day of September.” The making by the defendant is averred. The deliver: to the plaintiff, payable to his order, is doubtless a sufficient averment of facts, constituting the plaintiff the holder, and entitling him to enforce the cause of action, ifany. In conformity with mo- dern decisions, it may be said that an averment of making and delivery of the writing, and givin ii very terms, to wit: I promise to pay,” &c.,is sufficient averment of the promise by the defendant, though it was tormerly held otherwise. See Bel. Abr. Tit. Asaumpsit, F.; 1 Tavnt., 217, Morris et ux ye. Norfolk; 2 New R., (5 Pros. & P.;) 62, Mount ford vs. Horton, dhd cases cited in the note, The only remaining requisite is the allegation of the breach of promise. This need not be averred in an: particular form, but it must be in such form that it charges default of performance of the promise, and charges that default upon the defendant; and in such wise that it may be met by a distinct counter allegation, so as to create a material issue. Thus, an averment that the defendant hath not paid the sum mentioned in the said note—and in general as stated by Chitty, (1 Chit. Pl., 326,) the breach should be seared in the words of the contract, though it is sufficient te assign the breach in words containing the sense and substance of the contract. Now in this case it is not averred that the defendant hath not paid ,or hath not performed his promisein any form; nor even thatthe money mentioned in the note has not been paid, or that it remains unpaid. The pleader says that the sum is due and owing to the plaintiff. is is the statement of a mere legal inference from a breach which is not averred at all. But even this is not charged upon the defendant. He does not aver that the said sum is due and owing to tle plaintiff from the defendant. To warrant the legal inference that the money is due and owing, it is necessary to aver the promise and the breach of it by the defendant, for without both of these no such inference arises. The plaintiff's counsel insisted on the argument that the possession of the note and its reduction was sufficient Taise the implication hat it was not paid. That may ‘be conceded, but that only goes to the mode in which the non-payment is to be proved, not toshow that averment of non-pay ment is baer hl A plaintiff must aver the facts essential to his right of recovery—the mode of proving those facta is a different matter. I think the plaintiff here has failed to put the defendant in default by an averment of any breach of contract, or any facts amounting to such a breach, and, therefore, that the demurrer to the complaint was well taken, unless his com- laint can be sustained by section 162 of the Jode. Second. By section 162 it is provided that in “an action founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state shat there is due to him thereon from the adverse party a specified sum, which he claims.” I 1 with the soinin given at Special Term, that if a pair are ‘8 to avail himself of the privilege given vy this section, he must conform to its requirements —cannot be allowed to say that the Legislatare have relaxed or dispensed with the former mode of de- claring’on a written instrument and given a substitute and now the Court maydispense with eocpaeciny with the rules required in the substitute itself. The sum claimed is neither alleged to be due on the note, nor tobe due from the defendant, The defect jn this complaint are easily amended. Tué Court would not, I think, have hesitated to allow an amendment even after this demurrer was interposed, without costs. The Court have no disposition to withhold in- dulgence, or spconrage objections that are triflin; or unsubstantial ; but there must be some rules of Pleading ond, practice, and if so they must be inaintained. 1 think the order sustaining the de- murrer and ordering judgment for the defendant, should be affirmed. Bottler vs. Towner—Woovrvurr, J—I think this judgment should be reversed. The plaintiff's claim, a8 appearing by his complaint, proceeds upon one of three grounds. First, it the voyage for which he shipped had terminated by reaching a port of discharge. the vessel Second, That the master o discharged him at Savannah. Third, That the ves- sel when at Savannah was unseaworthy, and the seamen were therefore not bound to retarn in her to New York. The testimony does not exhibit any conflict or contradictions’ upon either of these grounds of claim. All the evidence is to the samo effect, so faras it bears upon these questions, and concurs in disproving rather than establishing either of these grounds of recovery. First, Savannah was not the port for which the ship with her cargo was bound, or for which she cleared from the West In- dies. That port was not visited voluntarily for an: purpose. Being dismasted in a gale, the ship, throug’ necessity, put into Savannah for repairs. ‘This wasno deviation, and did not operate as a termination of the voyage ; nor was any deviation alleged asa ground for claiming a discharge. Second—Uhe proof is positive and uncontradicted that the captain did not digchai ge the seeman, but did all that he could to induce him to continue in the performance of his duty. Third—The proof is equally clear that the ship was seaworthy, and was so pronounced upon the ervey had in Savannah, upon which it was cer- tified that she was in a fit and seitable condition t> continue her voyage with eafety—and of this there is no contradiction. This case, therefore, upon either of these grotinds, does not prevent an exam- ple of a finding by the Court below upon a question of fact upon doubtful or conflicting evidence. There is here no contradictory testimony; but the plaintitt wholly failed to establish either Rect upon which in his complaint he claimed to recover. Hia case was entirely without evidence to support it in these particulars, Failing to establish the grounds of recovery upon which his complaint in the Court below rests his claim, the plaintiff now insists that there were found defects in the manner in which he shipped, by reason of which he was at liberty to terminate his service when aud where he Page and that he is not lable to the Penalty for desertion upon which the defendant Telics, First—That the captain of the vessel did not sign the shipping articles, It ia sufficient to dispose of this by saying that the act of Congress which re- quires that there should be an agreement in writing or in print, only requires that it should be signed by the “seamen and mariners.” [ts executiou and dé- livery by them, and ita acceptance by the master, and his going to seain pursuance thereof, made it good and sufficient evidence for their protection for all the purposes contemplated by the act. Second— The plaintiff insists, but did not prove or attempt to ‘ove on the trial, that the Collector of the Port of jew York did not deliver to the captain at the time of the clearance of the vessel for her voyage, a certi- fied copy of the shipping articles, nor a duplicate list of the crew, and that the defendant has not shown it the original shipping articles were deposited in the Custom House. The plaintif® having himself, by his own evidence en the trial, proved a contract by which he was bound to return with the ship to New York, and having wholly failed to show any justification for his abandoning the vessel at Savannah, had himself the burden ot proving that the defendant was in defanit in these particulars, but neither offered nor attemt- ed to do #0. On the cont , in respect to the shipping articles, the very paper which the plaintiff himself gave in evidence is certified to be a true ys ‘Valid at that time in the ’s hands. The plain- object bated Lae tiffs, therefore, by. virtue exchange, and the moment it was oosatamateds ‘became bona fide holders for value. And if it were, for the purpose of srgement, conceded that their holding of the note in question was, under the circumstances, ag security, and to indemnify themselves inst the igre of their own note, exohan; therefor, still their holding for that was bona fide, and tothat extent the was their property. When, therefore, Grinnell, Minturn & Co., (the then holders of the plaintiff's note,) applied to its pay: ment a bill for storage, as tuey, by the plaintit's asrent, had a perfect right do, the plaintiti’s note, for all les Yurpoeess paid, and id by the plaintiff, as troly as if Grinnell, Minturn & Co. had ene to the plaintitts, in money, the sum due to em for storage, and the plaimtiffs had, in turn, with money, paid their own note, I perceive no oc- casion for reviewing, in detail the decision hereto- fore made at General Term. which, in myjudgment, conclusive against the appellant, upon ands of the present appeal. The judgment should be af- — with costs. esi ie Mayor, &c., vs. Hyatt, et al—Wooprvrr, J. The Act of 1853, article 4, sec. 5, (Session Laws of 1853, p. 446), aud the Act therein referred to—Seo. 20 and 21 of Act of 1853, Session Laws of 1853, bizc by which the violation of the Ordinances of e Corporation of the City of New York is declared ey t, and do not te hive of i prisonment, and do not operate as a repeal o! penalty given by those ordinances, or take away the right of the Corporation to prosecute a civil action for and to recover such penalty to their own use. The right to pass by-laws, affix penalties, and sue for and recover them for their own use, is given the City charter, and is not to be deemed taken away by implication unless the State law is irre- concilab iy inconsistent with the right thus given. If the State law and the whole ordinance can stand together, the former does not repeal the lat- ter. When the defendant does not appear on the trial below, the Court will not be astute to discover defects in the plaintiif’s sedpvebeatins Gerat when it is not claimed that injustice has been done: or that the appellant has any defence on the merits, Hervier vs. Guion—Woovrurr J—A composi- tion deed, executed by are yep and other credl- tors of the defendant, contained a covenant to accept 50 per cent of the defendant's indebtedness in three instalments, at times about six, twelve and eighteen months; and provided that such payments should be in full sati sfaction, and should be a release and discharge of all indebtedness, claims, deeds, &c., from the beginning of the world, &c. But a condi- tion was annexed—that is to Bay, provided three- fourths in amount of the defendant ‘a creditors signed the deed, without any limitation as to the time with- in which the signatures should be procured; and to this was added a covenant by the plaintiff, that if the defendant paid the instalments as they respec- tively became due, he would not arrest or gue the defendant for the said debt, nor in any manner mo- lest him, until the expiration of the term limited for the payments, and that until then the instrument should operate as an absolute discharge of all suita commuted or which might be comimeuced against him. Held that the deiendant had the fall period thus limited within which to obtain the signatures of three-fourths of his creditors, and that the in- or and made punishable strument was a good defence to any action brought by the plaiatiiY within the ai teeny time, if the instalments were paid as they became payable by the terms of the composition deed. Buckingham, et.al, agt. Oliver —Woovnvrr, T.— jiable, te, C. for the sum of two hundred dollars, a receip *|/and gave bits $25 When A. and B. are joutly and severally | sinee Wy C., acknowledging the payment by A.o one hundred joint obligors. Edwd. Solomon agt. Holt, et al—Woovnurr, J.— When an action is brought upon a chose in action not nogotiabje, in the name of an assignee thereof, andthe defendant seeks to set off a claim in his he must prove that the claim belonged to him before notice of the assignment. Whether own favor, such set-off can be made if such claim was not both due and Quere, Whether sec. 112 of the Code of Procedure ing that the debt was attached in the hands of the has not so far altered the Revised Statutes, that in | defendants, nid had notice, before ey. made say. case of such oment @ claim may be set off yment, that it had been assigned to the plaintti which did not ex! inst the assignor ai vie wid | 20 the benefit of Lyman’s creditors. The assign- of the assignment, but afterwards atoss Aud wasac- | ment was "WH t0 them, and they knew that the sea the defendant before notice of such as- | respondent, as oF, .na.noquired: title hefore, mment? Quere. the service upon them of the “Mazeti vs. The New York and Harlem Rail- road Company—Woopxurr, J—When a railroad company are duly authorized to lay theirtrack in one of the streets of the city, they are not at all events, and without proof of mee tgeoe or want of skill and Teasonable care, Hable for accidents which may Se caieéu tuérény. Froof of sick neglgence oF want of care or skill in the manner of constructing or maintaining the track are necessary as between them and php exercising the common right of passing and repassing through or acroas the street. nder the proofs in this case, the finding of the oe upon the question of negligence held con- clusive. Naylor vs. Schenck, et al~Woovrurr, J.—The pendency of another action in favor of the defendant against the plaintiff, for the recovery of damages for breach of contract, will not prevent a reconferment of the same damages by way of defence to a subse- uent action brought against such defendant upon the same contract. Kane and wife, respondent, vs. Dulex, lant. —Woonxcrr,” J—The Marine Court of the city of New York must render judgment within four days after a cause is finally submitted, or it loses yekegela tt and a sadgment rendered after the pse of the four days will be reversed. It seems that where the cace is tried by a jury, and a verdict for the defendant has been Yendered, the omission ot the court, to render judgment thereon will not deprive ihe benefit of the verdict in his favor. ‘That elect to be non-su and then maintain another ac- tion for the same cause. Golds: » appellant, vs. OConnor, respondent. —Wooprurr, J—Where the defendant, employed the pldintiff to assist him in findiag and procuring copy of the original pn file in the gfiicg of the Col- the purchase of a house—acknowledged that the ecrvices rendered were ugeful, and promised to pay for them, held that be was liable therefore on a vantum meruit, although it wasnot proved distinct- fy that the purchase was consummated by the p!ain tifl’s agency. One who employs another to aid in making a purchase is liable to pay for the services rendered, wba fe the purchase is not made unles from the terms of the employment (cither expressed or impossible from other circumstances), success was a condition of the claim for. compensation. Henry, appellent, vs. Mervin, respondent—Woor hurr, J.—Where an’ agent for another sells goods without disclosing{the'name of his principal, the pur chaser may pay the purchase money to tly ei or settle with the agent by any bona fide ar ment by which he parts with money or property upon the faith of the agent’s apparent authority. But placing the amount to the credit of the agent, against a pre-existing indebtedness, with knowledge that the goods were held by the agent for some other person, for sale, isnot such a paymoat, and the principal (the owner) may recover, therefor, notwithstanding such credit. An agent to sell zoo: has no authority to pledge them to secure an an cedent debt due by himself, And when the pledge in vuch care refuses to deliver the goods to the owner on his demand, but sells them at auction, such owner may recover their value in an action for the illegal detention and conversion, or he may | affirm the sale, and waiving the tort, sue for the Sroseate ofthe goods, as ao much money received y the pledgee to his use. Hunt and Nason, respondents vs, The Hoboken Land Improvement Company, appellants.—W oov- nvr, J.—{n an action by the owners of a ate against the owners of another boat for neg! , producing a collision, the plaintiffs cannot recover as damages the pop ed loss of profits which they might have realized from a return trip from Albany, to which their boat was bound when injured by the collision. It is error to charge a jury that the statute of this State requiring steamboats when meeting each other to turn to the right, (or to star- ») “ does not apply to steamboats crossing the river.” It does apply whenever thowo boats meet | each other, whether approaching each other upon | courses either directly or obliquely tenon ‘he eee law of navigat rescribes the same rule, hen the course of one t is at right angles to that of the other, the question of negligence depends dellars, in full of his obligation, does not operate to release or discharge either of the yable before notice of the assignment? verdict mey be pleaded by him in bar of another action, though no jndgment is entered thereon. The plaintif’ in such case cannot, after verdict, | \ é | The defendant had a right to show that the plaintiff d ‘Connor, respondent, agt. — : asto the | Woposuvy, Ja A jetemieas ig | an , this will not an on against two who are sought to | with Justice what ia be as contractors nip pero om a of fasts Judgment i ‘fp t liability is denied, is no bar toan % 08. oon peg oma Tras action by the same plaintiff on the same contract, | Couns. not eufficient to warrant the sub- ay ‘one Of the former defendants, in which he is | mission of the case to the jury, and judgment re- assole contractor. If the jud, in the | versed. Sr. nefion wancsepgared. nome olen Paymcator | Travis vs. Barrett—It is not « sufficient ex other defence, which, when establish, would be | cuse for a default that the defendant waenegotie- equally a defence in the se0°” 7 gutt, then such judg- | ting with a third person for » settlement, who ment would be con“ustwe against the plaintiff. mised to have the canse adjourned, and to Jones cnet Bouton, Re: ts, vs. Henry Prid- | do so. The existence of 8 setoff to s fang ham, impleaded, ete.—Woovrvrr, J-—There is no | evidence of injustice having been done. pround wy on which the igment against the appel- Brown & Crane vs. Cook —The holder of @ mort- nt can be sustained. The summons was not served e on personal property, payable on Lorre : upon him personally. He did not appear, nor au- intain an action against an officer acting thorige any one to a for him. Having no ac- | an execution e my fee — & tual notive of the suit he would be entitled to a new | the property and sing of the same, <4 trial, $ ‘there was no error in the proceedings. But of demand of the defendant due on the. » wi dahact fe canta mye | a yatteivraat ce et whale ae ry that there was no evidence wi er before the e » ‘Justice that the Leese Pridham, was — = pallathe Property "abooltely, he makes the note upon which the action is broug! aw! ee subdivision si of section 64 of the Code, MeLaurey agt Petti -A mere license to ine it is in terms provided that in case the | sert beams in a wall of an adjoining house is not am defendant does not appear. and answer, the | interest in lands, which, by the statute of frauds, plaintiff camnot recover without _provii must be in writing, Where the agreement has *Eardly case. And, on the other hand, it is ly to say that where a defendant. does ap- pear, and deny all the plaintiff's allegations, the jaintiff cannot recover without proving bis ‘case, n this trial,‘all that the plaintiff proved againat the sppellant was the making of the note by the other defendant, and the endorsement thereof by the ap- [oe No attempt was made to show that the ity of the appellant as endorser had been fixed in any manner. No proof was pen of presentment, demand, refusal or notice to the appellant, or of any waiver of demand and notice. So that upon the roofs, whether the appellant was bound or not und by the appearance of the attorney, who was by the Justice understood to appear for both defen- dants, tbe proof was wal insufficient, and the ap- pellant should have had judgment of dismissal. The judgment as to the appe lant must be reversed. Bange vs.the New York and Evie Railroad Com- pany—Woopvrurr, J.—Held, as often heretofore, that where the evidence is conflicting the court will not eet aside the report of the referee upon the facts, although the court are of opinion that upon the evi- dence, as it appears ope paper, they should have found differently, unless the evidence against the finding of the referee so greatly, Deere, or his finding is so far without evidence in its support, as to warrant the inference of bias, corruption, par- tiality, or some bad faith or unfairness in the referee —some mistake in law, or in its application in the cage. Fox vs, Decker—Woovrurr, J.—It is not enough for a plaintiff to ake a state of facts warranting | only a conjecture that he may be entitled to recover. He must make out prima facie a right of action, and must furnish some criterion by which some ameunt of recovery can be fixed without danger of injustice; and when his own evidence leaves it indoubt not | only what amount the plaintiff is entitled to, but whether he is entitled to recover at all, his com- plaint should be dismissed. Bates, appellant, vs, Pierce, respondent—Daty, J. —-A clerk, whose salary is entered at the end of the year in the books of his employers at a fixed amount, which is an increase upon the previous year, and to whom his account is submitted upon his leaving his employers, showing that he had overdrawn, the correctness of which he admitted, cannot in an ac- tion brought to recover that balance, prove that his services were worth more than the salary credited to him in his account. Judgment reversed, aud judgment for plaintiffs for $33 50. Sanchey vs, Faulbery—Daty, J.—A defendant who pleads to the merits, waives any objection to the process by which he was brought into Court. The atatute which allowed the amendment of process before the enactment of the Code, remains in con- nection with the Code. It is applicable to the Marine Court, and under it that Court have the power to amend process. amended the process by striking ont the name of one of the plaiatiffs, which was inserted by mistake. Held that such an amendment could be made. Lyons vs. Story—Day, J.—Under an agreement by which the plaintiff bound himself to labor for a specified time, at the Isthmus of Panama, unless the defendant’s physician should certify that he was unfitted by sickness to work, further held that it was not necessary that he should obtain a written certifi- cate from the physician to entitle him to recover fcr what work he had done, but that it was sufficient that the physician told the plaintiff, together with sev- eral other laborers, that they must prepare and fo in pare to New York, that they were not fit to work. Eilert, respondent, vs. Kelly, appellant—Dauy, J. Where, in an action of slander, of having charged the plaintiff with going to Court ana porjuring him self, the jury found a verdict for the plaintiff, $25 damages, although it was proved in the most clear and satisfactory manner that the plaintiff did upon the occasion referred to in an ac- tion between him and the defendant, swear to what was false, the verdict and ly ap was set aside, as a flagrant disregard of evidence on the part of the jury. Judgment reversed. Lyman, appellant, vs. Cartwright, respondent.— Daty, J.—I doubt if the debt in question was ever duly attached. It does not appear that any inven- tory was made, or that the notice required by the 286th eectian of the code, showing that the debt had been levied upon, was ever aérved. Bit Assit: necessar; The Marine Court | been executed, and the defendant has Hrosaniet ‘s ‘be examined a@ where ay the amount agreed on for the Telendant is liable. Chaffee vs.Cox—An assignor may o witness without ten days notice, there is an assignee, executor or against whom he is offered as a witness. Raymond vs, Richardson.—The notice of must contain the eons of appeal, and it is not enfficient to refer to the appellant. In such case the appeal will be dismissed with costs. "oodside, &e., respondent vs. Allen Green, appel- lant.—The defendant received $45 advance money for three seamen, and signed an agreement to the effect. that, if they did not go to sea in a certain vessel, he (the defendant) would refund to the plaintiff the ad~ vance money. They went on board the vessel,but left shortly after, as was alleged, in consequence of sick- ness. Opening of Fourth Avenuc. SUPREME COURT—MAY GENERAL TERM. Before Chief Justice ees and Justices Roosevelt and lerke. In January, 1853, a judgment was entered in the Court of Common Pleas of New York city, ordering the plaintiffs in that suit to convey by deeds to the defendants respectively, certain property described in the judgment. The judgment was divided inte ten sections, each section relating to a separate portion of land. The eighth section related to a lot of land lying between Third and Fourth avennes, and between Ninty-ninth and 10lst strecta. The tenth section of this judgment contained a clause declaring that ‘Fourth avenue, as herein used, should be taken at the width of one hundred feet, as originally laid out.’ In accordance with this judgment, McGown, one of the plaintiffs, conveyed a part of this property to one Clarke. That con- geyance, however, made no reference to any judg- ‘ment, nor did it strictly conform to tho jadgment. The judgment wast that he conveyed lands bounded by the Third and Fourth avenues, east and west, and by Ninety-ninth and 101st streets, north an south. ‘The conveyance by McGown granted | no absolute right to 100th street, as would have beem required by the ju@yment, nor was it strictly | bounded by the streets as directed by the judgment, | but conveyed the lots in fee simple, with full ware ranty, together with all the grantor’s right in the: | avenues and streets. The Commissioners of Assess- | ments, in laying out Fourth avenue took a part of | this property belonging to Clarke, allowing him | merely nominal damages. The report of the Com- missioners was affirmed at special term, and an ap- peal was taken. Theopinion of the court was ren- | dered by his Honor Jndge Mitchell, and was in ef- fect as follows:—It is evideat that the parties did not mean to follow the judgment, and it would be an imprudent rule to allow a judgment to control a. | deed between the absolute owner of land and the | purchaser from him, when the deed contains norefere ence tothe judgment. The deed being miade subse- | quent to the judgment, it is not improbable that the | change may have been purposely made, becanse the | parties concluded that the deed as chan; would \ best carry out the contract between them. For as between the buyer and seller, the judgmeut is & | contract; the deed merges that contract. | then did the parties mean to Seavey by this deed 2 The doctrine has become very familiar that a con- veyance of lands in that part of the city where these lauds lay, bounding them by any avenue or street, was a dedication of half that street ox avenue, go aa to cutilly the yrantee to nominal damages only, upon the opening of the street “ur arena With the knowledge of this role the parties made this conveyance, in which the lands are thus bound- ed, and they carefully distinguished between the land within the block and the grantor’s right in the streets or avenues. The deed conveyed an unin- cumbercd title to the former, and only the grantor’s. right to the latter. This right was not an absolute ownership, but only the right which remained to the grantor, aster the dedication. The infer- ence ix, that the release to Clark of the ht: to the streets was not intended to affect deed, so far as to prevent a dedication to the nublic. which the law implics, from the other words used in the deed. It was contended that the Commissioner's report was invalid, because contra- ry to the constitution of 1846-'7, which says that, the compensgtion is to be ascertained “by not Jess than three Commissioners, appointed by a Court of” Be. - were not compelled to pay the debt to the . They had a right to issue, and, with w knowledge of the pare rior title, the: thould have issued. All that the sheriff could do would be to sue them for the debt, and if, in action brought by the sheriff, under section 33: er by the plaintiff in the attachment, undér section 238, they were compelled to pay the debt, they would have been protected by sch a compulgo: payment. Holmes vs. Remsen, 20 Johns. 229, tt bees had paid the debt without any notice of the axeignment, or om ine it upon the lability to the attaching creditor, being established by action, the plaintiff could Lave no claim upon them. — But their youne was a volunt act, after actual notice of he assignment which they made at their own risk and peril. Robinson vs. Weeks, 1 Code R. V. 85 314, and does not discharge their Hability to L; "8 assignor. The judgmetit should’be reversed, and as the care has been fully investigated, we think “tachment, bed ment should be ordered for the ‘plaintiff for bere = ang soy ot b D eters, lant, vs. Diossy, Repent! ALY, J—A plain iff ina Justice’s Co , upon failing ia his proof, may elect to be non-suited, or the Justice upon the trial bas the right to non-suit the plaintiff, if, in his Judgment, he fails upon his own showing to make out his case either upon beg 2 na of the incompetency or the insufficiency of the evidence, and a judgment of non-suit, in such a case is no bar to 2 second action. But whether the Justice non-suits or the plaintiff sabmits to a non-auit, it must be done at the time or when the case is suly mitted to a jury, before the coming in of the verdict. if the cause, however, is submitted to the Justice, and he takes time to make up his judgment, it is no longer in the power of the plaintiff to sabmit toa judgement, or of the Justice to grant it; and if the Justice should, in such @ case, render a ot nou-suit, it would be regarded, and might be as a bar toa second action. A Justice’s thould ret forth when the sunmons was 7 the day issue was joined, the days of f any, the day or days of trial, and the upon which judgment was rendered. Judgment Ingersoll vs. Gillies and Byrnes—Dauy; J—AN the chjcctions made to the manner in. which the defendants were brought into Court, the matare of thie summons, the form of it, the maliner of taking the security and the retarn of the constable, were waived by the defendants to the merits. This we have repeatedly defendants uswered before the Court upon the objec- . The objections and the answer were inter same time, when the Court adjourned owing day. On the following day the ice decided against the defendants upon the jections, and under the ple had been put , complied with a demand a The cause was tried before a jury, and a verdiet rendered for nts making no defence. This was conclusive upon the defendants, and the | Judgment should be affirmed. | Wallace, respondent, vs. Taylor et al—Dary, I— | tho plaintiff, the defe | ocenpied the second story, and that the defendant | oceupied the lower part of the house, and conre- | quently the plojatif® had bat a right of entrance and egress throngh the hall. Had appeared, it would have shown that the plain’ had uo right | to put a plate upon the street door with his name | upon it, without the consent and permisgion of the defendent. WwW ide, §c., respondents, vs. Allen Green, ap- pellant-——DALY, J—The seamen did not go to soa. If they were unable to do so, in consequence of sick- nese, or other cause, the platatiffs were entitled to a return of the advance money, for the repayment of We acento of their not prverdig to sea, ie defendant became security. The judgment shall be fom : iit ilhams, respondent, vs. MeCauley, appellant — Daty, J.—Where a defendant has once appeared in @ cause, this court have no power to relieve him from a default subsequently taken against him. The dis- menttaken by default, exists on Record.” It was, however, a familiar principle of: law, well known to the framers of our cou! ition, and is specially laid down in our Revised Statuteg, (2 R. 8,, 555, sec. 27,) that when any power br daty. ‘a conferred upon two or more persons, it may be -sd by ® majority of such persons, upon @ perforn. , unJess special provision is otherwise. meeting ofa. * +he damages are ascertained by the made. In fact, . nai Judivial tribunal, and they three, acting asaqu. “ng to the jud; tof the a decided accoru. “4 dissenting member majority. In this case uw. he not fally: acted with the majority, althoug. *~ fed them, im agree with them; und he has proba, “vy came. art, to the conclusion to which th, ~eugg, It is also objected that fhe fod ent is bad, be. the costs were taxed by the Clerk of the Court, m contravention of the Snows bag of 1847, p. 5, vec. 38. But does that make'the jadgment necessa- rily erroneous? If costa are improperly taxed, and « that should appear on the face of the Jndgment, the jadgment would be good, and the relief of the would be to move for a retaxation, which be granted at the cost of the irregular party; not to Taige the objection on an appeal, or against the va- pend of the judgment. Some discussion arose ag towhat papers should be presented on appeal ia there proecedings. Everything which will aid in the decision raised by the appellant, sented as fully as it was presented at S| together with every matter essential the proceedings were regular, and that was obtained to give judgment. It ia however, to inciude that part of the report which relates exclusi to throws no light a] thre ficient to state in Foqeeh abe with conte. as wehesie Gee mene His opinion was pub show the yestercay. Cee Nine United States Uistrict Court. DROISIONS IN ADMIRALTY. Before Dennis Harris vs. The Steamboat Pluto—Thie’ suit is brought by the owner of the steamboat Lind to Theres hoet nine hand ‘omageh the 4th S97, * sileged that the Jenny Lind was coming down A North river, and when near Canal treet, 4 the outside of the Plato,which was.also: but slowly; that after the. J come distance below, she headed ef Cham! right angles; that, thereupon, the Plate, to avoid a collision, try to pass astern of the Jenn; evidence from those on board being in direct conflict the one Court must look to the who were witnesses in the canes. outside witnesses corroborate the statements on board the eI Lind, and thove statements: corroborated, weigh the testi from Plato, ax to the manner and cause of Decree, therefore, for libellant, with » 4 commiesioner to ascertaia the Francis D, Fowler et al. vs. The ship A. brough.—This suit was brought by the fiveltante to secover damages for the breach ole contract me 4 With them by the agent Shae oae the chip 40,000 feet of of lamber from. port te tl the other, & i San Francisco. Held by the Court—That upon the evidence there was no doubt that the contract was made by the agent of the ship, and that the lamber was afterwards tendered an fused, and no exe cuse was shown why the contract was with. That the question was, who the contract waa made with. It appeared that the lumber belonged to a Mr. Ford, w ger made an to hava it carried on board the ship Du a which, with the libellants’ consent, was to the A. Cheesebrough, and that Ford had & cretion of the court to set aside or suspend a jadg- the defendent failed altogether cause. Judgment affirmed. npon the particular cirenmstances of the case, and not alone opog the question which turned first, if en @ case where appear in tue Grosvener and , Wife, re: ents, vs, Di appellant—Dary, I eicoake the respon cellar and sapping their found non, it's ‘ation wall by water pag ap a Held, seg the — ae ry not the contractin; rt, it ol agent Ford, and were not entitled Pog’ there- fore, dismissing libel, Question of cost reserved fue further hearing.