easements in the street; that there to be authorized by $ 7 of said act. can be no recovery for anything The complaint was dismissed at done by the railway in the street Circuit and plaintiff appealed. except as it deprives or tends to Anthony R. Dyett and Ira Leo deprive the abutters of said ease- Bamberger, for applt. ments.

H. H. Glass and L. L. Kellogg, [Motion for reargument denied for respts. March 15, 1887. No opinion.- Held, That the act of 1862 proED.]

vided a special form of procedure under which an aggrieved party

might obtain an order from a N. Y. CITY. MARSHAL'S

judge of the Court of Common BOND.

Pleas at chambers, authorizing N. Y. SUPREME COURT. GENERAL

GENERAL the prosecution in his own name TERM. FIRST DEPT.

of a marshal's bond, and the act

prescribed the order that such Isaac Moog, applt., v. James judge might make by enacting Keogh et al., respts.

that he might order such bond to Decided Dec. 31, 1886.

be prosecuted in any of the DisA justice of the Court of Common Pleas for

trict Courts of the city of N. Y., or the city of N. Y. has no power under $ 7 in

in the Marine Court of said city, of Chap. 484, Laws of 1862, to make an and conferred jurisdiction upon order permitting a person aggrieved by either of those courts to entertain any official misconduct on the part of a marshal of the city of N. Y. to prosecute

the action. That no power was in his own name in the Supreme Court given to the judge of the Common the official bond of said marshal executed Pleas to make any other order to the mayor, aldermen and commonalty

than that prescribed in those secof the city. In the absence of some special statutory

tions. That his jurisdiction was a authority a person so aggrieved has no special and limited one restricted power to prosecute said bond in his own to the form of order prescribed by

the statute. That he had no power This action was brought on a

to direct the prosecution of the city marshal's bond executed un- bond in the Supreme Court in the der the provisions of Chap. 484, name of plaintiff, and the order Laws of 1862, to the mayor, alder- which purported to do so conferred men and commonalty of the city no greater right upon plaintiff of N. Y. Plaintiff claimed to have than he previously possessed. been aggrieved by official miscon- That plaintiff not being an obliduct on the part of the marshal, gee of the bond could not sue on it in and the action was brought by his own name without showing him in his own name under the some special statutory authority for authority of an order of a justice him to do so, and that he wholly of the Court of Common Pleas failed to show that because the permitting him to bring such ac- order of the judge of the Common tion and which order was claimed Pleas which he produced was not


one which such judge had power asserted that he never asked plaintiff to to make.

renew anything. Held, No question for Judgment affirmed.

the jury and a verdict for plaintiff should

be directed. Opinion by Davis, P.J.; Brady and Daniels, JJ., concur.

Appeal from judgment in favor of plaintiffs, entered upon a ver

dict directed by the court. BROKERS. PRACTICE.

The complaint alleged the emN. Y. SUPREME COURT. GENERAL ployment of plaintiffs as stock TERM. FIRST DEPT.

brokers to make purchases and Henry Knickerbocker et al.,

sales of stock for defendant, the respts., v. Chas. W. Gould, applt. advancement of moneys for that Decided Dec. 31, 1886.

purpose and consequent purchases,

the earning of commissions which, The complaint alleged employment of plaintiffs as stock brokers by defendant

upon a closing of the account to make purchases and sales of stock on

rendered, showed a balance due to his account, the advancement of moneys them for which judgment was defor that purpose and consequent pur- manded. chases, the earning of commissions, and a balance due plaintiffs upon the closing

The answer denied any knowlof the account for which judgment was edge or information as to the sum demanded. The answer denied the mate advanced and that an account was rial allegations of the complaint and set

ever stated, and set forth as an forth an affirmative defense to the effect

affirmative defense that the conthat his contract with plaintiffs was to buy stock upon a margin, carry it until

tract between himself and plainthe margin was exhausted and then noti- tiffs was that the latter were to fy him, and if he did not elect to supply buy stock upon a margin, carry it further margin, then to sell the stock; and he alleged that plaintiffs had failed

until the margin was exhausted, to so notify him and did not sell out the

and then notify defendant, and, if stock when the margin was exhausted. he did not elect to supply more Upon the trial, plaintiffs established the margin, the stock should be sold; facts alleged in their complaint and de- and further, that plaintiffs failed fendant then took the stand in his own behalf and without contradicting plain to notify him and did not sell out tiffs' evidence testified that during his

the stock when the margin was transaction with plaintiffs he met one of exhausted. them and was asked by him, “ What are

At the trial plaintiffs sustained you going to do about this stock?” Defendant replied, “I don't consider my

all the allegations in the complaint self responsible for it after the margin by showing the purchase of stock, was used up.” To which plaintiff said, the transmission of statements of “You know that is not the way we treat

the account to defendant through our customers.” Whereupon defendant said, “I told him I didn't consider my

the mail, and that defendant had self responsible; that when I put up ten never complained or found fault per cent. margin if I didn't make up my with the account, but, on the conmind to continue it would be sold out,” trary, had stated that he would and further, that plaintiff gave him to understand that his margin was absorbed

settle the same. when the conversation took place, and he Defendant, when called in his own

behalf, did not contradict any of although a person is not bound to plaintiffs' evidence, but testified examine the items of an account that previous to the commence- rendered him, when for some inment of this suit he had met K., dependent reason he disclaims all one of the plaintiffs, and when liability, and will not be taken to asked by him, “What are you have assented to them if he does going to do about this stock ?" re- not object, still, if he takes the plied, I don't consider myself ground that he has nothing to do responsible for it after the margin with the account and denies all was used up.” To which K. said, liability thereunder he must estab“You know that is not the way lis

lish it, and that defendant failed we treat our customers." Where- to do so in this case. upon defendant said, "I told him Judgment affirmed. I did not consider myself responsi- Opinion by Brady, P.J.; Daniels, ble; that when I put up ten per J., concurs. cent. margin, if I didn't make up my mind that I wanted to continue,

PLEADING. COPARTNERit would be sold out," and further,

SHIP. that he was given to understand that his margin was absorbed N. Y. SUPREME COURT. GENERAL when the conversation took place

TERM. FIRST DEPT. and he asserted that he never

Richard S. Roberts et al., applts., asked K. to renew anything.

v. Henry M. Graves, respt. T. F. Hamilton, for applt. Delos McCurdy, for respts.

Decided Dec. 31, 1886. Held, That defendant's testimo

The complaint, after alleging that plainny was a mere assertion of his tiffs were copartners in business, alleged legal liability according to his own

the making of the note in suit to them

by defendant, and that they were the lawjudgment. That he did not state

ful owners and holders thereof and that any facts of which that judgment it was due and unpaid. The answer demight be predicate. That he mere- nied the copartnership and set up the

statute of limitations. It appeared upon ly stated his opinion. He did not

the trial that one of the plaintiffs was show by that method of expressing

not and never had been a copartner of himself that he had made any the others, and thereupon the court diagreement whereby he was to be rected a verdict for defendant. Held, relieved from all responsibility, as

Error. set up in his answer, when the Action on a promissory note. margin was exhausted, and that The complaint alleged that plainplaintiffs must protect themselves tiffs were copartners in business by a sale of the stock when that under the firm name of Roberts, event occurred. That the conse- Cushman & Co.; that for goods quence was that there was nothing sold and delivered to defendant he really to go to the jury and the had made, executed, indorsed and court was quite justified in direct delivered to plaintiffs his two ing a verdict for plaintiffs. That, promissory notes; that said firm

were the lawful owners and hold

PRACTICE. ers of said promissory notes, and

N. Y. SUPREME COURT. GENERAL that the same were due and unpaid.

TERM. FIRST DEPT. The answer denied knowledge of or information sufficient to form a

Edward Wood, exr., applt., v. belief as to the copartnership and

Karoline Kroll, exrx., et al., respts. set up the statute of limitations as

Decided Dec. 31, 1886. an affirmative defense. Upon the trial it appeared that one of the

Plaintiff recovered judgment upon fore

closure of a mortgage for an erroneously plaintiffs was not and never had

large amount, and, upon appeal, was been a member of the firm of Rob

compelled to consent to a reduction of erts, Cushman & Co., and that a the same. A reference was ordered to person who was not joined as

determine the amount to be restored by

plaintiff. During the pendency of said plaintiff was a member of said

reference it was discovered that a certain firm, and thereupon the court di

affidavit in the action had been removed rected a verdict for defendant.

from the files of the court, and upon the G. S. P. Stillman, for applts.

ground that plaintiff's attorney was Geo. W. Parsons, for respt.

responsible for such removal an order

was made staying proceedings upon the Held, That the answer admitted, reference until said affidavit should be reby not denying, that defendant stored. Held, Error. That the proper made and delivered the notes to practice if the affidavit was important as

evidence before the referee would be to plaintiffs; that they were wholly

require its production by means of a unpaid, and that plaintiffs were

subpoena duces tecum, and, upon a failowners and holders thereof, and ure to produce it, further proceedings to that it was, therefore, an immate- compel its production could then be

taken. rial circumstance whether plaintiffs were copartners or not, and A judgment of foreclosure and the court erred in treating that as sale was rendered in this action a material issue.

and property sold thereunder. That, moreover, if it were of any Upon appeal from said judgment importance, the misjoinder and it was determined that the amount nonjoinder were waived under the for which it was rendered was too provisions of the Code by not aver- great and plaintiff was compelled ring them in the answer. Code either to submit to a reversal of Civ. Pro., $ 488.

the judgment or consent to a reThat under the pleadings plain- duction of its amount. Plaintiff tiff's case was admitted and they chose the latter course and a refwere entitled to a verdict unless erence was ordered to determine defendant established his affirma- the amount to be restored. Durtive defense of the statute of lim- ing this reference it was disitations.

covered that a certain affidavit in Judgment reversed and new the action was missing from the trial ordered.

files of the court and it appeared Opinion by Davis, P.J.; Brady, that it had been obtained from J., concurs.

such files by plaintiff's attorney

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for use in the trial of another ac- ecting the person or persons on tion, and, notwithstanding his whom it might be served diligently claim that it had been returned to to search for and produce the the clerk of the court for refiling, paper before the referee, and if they an order was made directing plain- failed to do that they might be tiff's attorney to restore the affi- examined concerning such failure davit to the files and staying pro- and the efforts that may have ceedings on the reference until it been made to obtain the paper, was so restored. From that order and, upon the evidence secured in plaintiff appealed.

that manner, the referee and the L. A. Gould, for applt.

court would be in a position to E. P. Wilder, for respts.

base further peremptory proceedHeld, That the order appealed | ings to secure the production of from would have the effect of in- the paper. That this was the definitely staying the completion orderly course of procedure and of the reference if the affidavit the one prescribed by law in such should not for any reason be there- a case and that it was ample for after produced ; and, as the refer

the purpose. ence had in part proceeded, and Order reversed and motion for the evidence in favor of appellant stay denied. had been given, such a disposition Opinion by Daniels, J.; Brady of the proceeding would be im- J., concurs. proper, for, instead of being stayed, it should be expedited and VENUE. MORTGAGE. brought to as early a conclusion as

N. Y. SUPREME COURT. GENERAL might be practicable. That an or

TERM. FIFTH DEPT. der staying proceedings would in no manner promote a just disposi- The Yates County National tion of the controversy between

Bank of Penn Yann, respt., v. the parties. That it simply had Zara H. Blake, applt. the effect of suspending their Decided Jan., 1887. rights and excluding the possibility An action brought by a junior mortgagee of such a determination without to compel a prior mortgagee to assign any probable prospect of the affi- his mortgage to the former upon pay

ment of the amount thereby secured, is davit itself being produced by rea

not an action brought to procure son of the stay.

judgment "affecting” a lien upon, or That in addition to these con- other interest in real property, within siderations the affidavit did not

the meaning of $982 of the Code, requirseem to be an important document

ing such actions to be tried in the county

where the land is situated ; but is simply to be used in the hearing before

an action to compel a transfer of such the referee, and even if it were lien to plaintiff, and may be brought in important for that purpose the

the county where be resides. regular mode of securing its pro- Appeal from order denying moduction was by issuing and serv- tion to change place of trial from ing a subpoena duces tecum dir- Yates to Livingston County.

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