From the findings of fact it appears "Sec. 4193. * * * but no bill that the last named mortgage was of sale, mortgage, hypothecation, or executed January 27, 1871; that it conveyance, or discharge of mortwas signed and acknowledged by the gage, or other incumbrance of any owner of the boat in the presence of vessel, shall be recorded, unless the two witnesses, one of whom was a same is duly acknowledged before a notary public; that the witnesses notary public or other officer auattested the execution of the mort- thorized to take acknowledgment of gage, but the notary did not sign deeds." officially; that there was no other Held, There is no doubt that or further acknowledgment of the Congress only intended to require mortgage before a notary; and that that a mortgage on a vessel this mortgage was not recorded in should be acknowledged for the the office of the collector of cus- purpose of authenticating it for toms, where the boat was perma- record, and that as between the nently enrolled. The mortgage to parties, and as against persons havMoore & Co., the appellants, was ing actual notice thereof, it was executed January 2, 1872, and was valid without acknowledgment or duly recorded in accordance with record. As this was the decision of the act of Congress, but when it was the court below, we deny the motaken, Moore & Co. had actual no- tion to dismiss and grant that made tice of the existence of that to the under rule 6, to affirm. appellees. Upon this state of facts Judgment affirmed. the court below held that the mort- Opinion by Waite, C. J. gage of the appellants was inferior in lien to that of the appellees. The act of Congress relied on by the appellants is now found in secs. ASSAULT. DAMAGES. EVIDENCE. 4192 and 4193 of the Revised Stat- N. Y. SUPREME COURT. GENERAL utes. These, so far as they are material to the present inquiry, are as follows: "Sec. 4192. No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of customs where such vessel is registered or enrol TERM. THIRD DEPT. Kipp, respt., v. Youmans, applt. Decided January, 1880. In an action for assault and battery, although plaintiff is a trespasser on defendant's lands, he may recover exemplary damages, if the defendant use unnecessary force in removing him, and the jury find defendant's acts to be wanton and malicious. In opening this case in his own behalf, upon a former trial, defendant said he knew he had made himself liable. Held, That this admission might be shown upon the second trial. The action was for assault and battery. A witness was permitted to testify, under objection by defend ant, that the defendant upon a former trial of the case, in opening the case to the jury in his own behalf, said, in reference to the affray, that he knew he had made himself liable. It appeared that plaintiff was a trespasser upon defendant's lands at the time of the assault. The circuit judge held that plaintiff might recover exemplary damages for any excess of force used by defendant in removing him, although a trespasser, provided the defendant's acts were found by the jury to be wanton and malicious. He also charged that if the jury found that the defendant used no more force than was necessary, the plaintiff could not recover. Plaintiff had a verdict. Youman & Niles, for applt. Gleason & Murray, for respt. Held, That the charge was proper. Also held, That the admission of defendant in opening the case on the former trial might be shown. The case relied on by defendant, Adee v. Howe, 22 Sup. Ct. N. Y., 22, only holds that an admission made by counsel is not competent against his client. Here the statement was made by defendant himself. Judgment affirmed, with costs. Opinion by Learned, P.J.; Bockes and Boardman, JJ., concur. APPEAL. N. Y. COURT OF APPEALS. Claflin et al., applts., v. Baere et al., respts. Decided March 2, 1880. An order setting aside and vacating a warrant of attachment is not reviewable in the Court of Appeals. This was an appeal from order of General Term affirming an order of Special Term setting aside and vacating a warrant of attachment. Samuel Hand, for applts. A. Blumenstiel, for respts. Held, That the appeal should be dismissed, the order appealed from not being one that is reviewable in this court. 59 N. Y., 313; 68 id., 370; 71 id., 594. Appeal dismissed. Opinion by Danforth, J. All concur. EVIDENCE. N. Y. COURT OF APPEALS. Merritt, respt., v. Campbell et al., admrs., applts. Decided Jan. 13, 1880. Comparison of signatures can only be made with signatures properly in evidence, and the genuineness of which is material to the main issue. Signatures cannot be introduced for the mere purpose of comparison. A witness in identifying a signature to receipts alleged to have been made by M., defendant's intestate, testified that he knew M.'s signature, and had often seen him write. On cross-examination he testified that the signatures he had seen M. write were indorsements on checks, which checks he thought he had, but had not looked at them lately. He was then asked the following question: "You are are not quite sure, if you should have those checks before you and his signature there, but what your opinion might be altered as to these, are you?" This was excluded. Held, no error. It is not a matter of right to ask every conceivable question on cross-examination to ascertain how much recollection the witness has Where, in an action brought against an administrator, the plaintiff, on cross-examination, has been examined as to a transaction with the deceased, he is entitled to state the whole transaction, so as to show that the inference sought to be drawn therefrom was unfounded in fact. Younge v. Honner, 1 Carr. & Kir., 51, distinguished. This action was brought to re- terial to the main issue. Signatures cover of defendants, as administra- cannot be introduced for the mere tors of M., deceased, the value of purpose of comparison. 75 N. Y., certain bonds, alleged to have been 288. delivered by plaintiff to M., to be sold for plaintiff's benefit, and of certain other bonds alleged to have It is not matter of right to been delivered to M. for safekeep- ask every conceivable question ing. Plaintiff introduced in evidence on cross-examination, to ascercertain receipts for the bonds signed tain how much recollection the by M. Defendants claimed that witness has. The extent to which these instruments were forgeries. inquiries irrelevant to the issues Plaintiff called B. as witness to prove may be pursued for the purpose of the signature of M., who testified affecting the credit of the witness, is that he had often seen M. write, and within the discretion of the court. knew his signature, and identified 34 N. Y., 223, 230. the signatures to the receipts in Defendants called plaintiff as evidence as genuine. On cross-ex- a witness and proved that M., amination he testified that the sig-in 1876, gave him a check for a sum natures which he had seen M. of money, and claimed that this was write were endorsements of checks evidence of a settlement of all predrawn to his order by the witness, vious dealings, or, at all events, of which checks the witness thought payment of so much money. Plainhe still had, but he had not looked tiff testified, on cross-examination, at them lately. Defendant's counsel that the check was given on a difasked the following question, which ferent account from the matters inwas excluded: "You are not quite volved in this action. Defendants sure, if you should have those excepted to the admission of this. checks before you and this signa- testimony. ture there, but what your opinion might be altered as to these, are you?" Calvin Frost, for applts. Held, That the ruling was correct; that the defendants having introduced the evidence of the transaction between plaintiff and the deceased, they could not shut his mouth as to Held, That the ruling was correct, the explanation, or object to his the question being entirely hypo- stating the whole transaction, so as thetical and relating to the conjec- to show that the inference sought tural result of a comparison the to be drawn therefrom was unwitness had not made, and one from founded in fact. which he would not have been permitted to testify, the checks referred to not being in evidence. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Rapallo, J. All concur, except Folger and Andrews, JJ., Comparison can only be made with signatures properly in evidence, and the genuineness of which is ma- absent. APPEAL. CONTEMPT. N. Y. COURT OF APPEALS. and they having admitted service of a copy of the referee's report, and of notice of the motion thereon for Watrous, respt., v. Kearney et al., the final order. The proceedings to applts. Decided Jan. 13, 1880. Where proceedings to punish for contempt appear to have been regular, it is discretionary with the court to open or vacate an order imposing a fine. So far as the motion to vacate is founded on the merits or upon alleged legal errors, these can only be brought before the Court of Appeals by appeal from the final order. Where a party has been personally brought into court on attachment he can be repre sented by attorney in the subsequent proceedings, and his mere allegation of want of authority of the attorney who attempted to represent him on motion for the final order does not invalidate such order. See S. C., 5 W. Dig., 274. punish for contempt appeared to Edward R. Clark, for applts. Held, That defendants, having been personally brought into court on the attachment, could be represented by attorney in the subsequent proceedings; that the mere allegation of the defendants of want of authority of the attorneys who attempted to represent them on the motion for the final order did not invalidate that order, and plaintiff's proceedings to punish for the alleged contempt appearing to have been regular, it was discretionary with the court below whether to open or vacate the order on motion. This was an appeal from an order of General Term, affirming an order of Special Term denying a motion by defendants to set aside or open Also held, That in so far as the an order imposing on them a fine motion was founded upon the merits for contempt in violating an order or upon alleged legal errors, those of injunction. The motion was could only be brought before the founded on allegations that the or- court by appeal from the final der was erroneous in various re- order. spects, and that attorneys had appeared for them without their Appeal dismissed. Opinion by Rapallo, J. All con authority in attachment proceed- cur, except Folger, J., absent. ings instituted in the above entitled action. The attorney who appeared on the return of the attachment made affidavit that he was authorized by the defendants to do so. It seemed that defendants were present at the time, and that the same attorney appeared for them on subsequent proceedings before a referee. It appeared that the final order was entered on default, the attorneys who had appeared for defendants in the action having notice, PARTNERSHIP. DISSOLU TION. GOODWILL. N. Y. COURT OF APPEALS. Morgan, respt., v. Schuyler, applt. Decided Jan. 13, 1880. Where a partnership is dissolved, and there is nothing in the former relations of the partners, or in the terms of the agreement of dissolution, that gives to either the goodwill of the firm business, or restrains either from continuing on his own account, and one of lease of the firm's place of business, he acquires as an incident to his right of occupation, the benefit of the goodwill connected with the place of business, but not that connected with the personal reputation of the firm; he has no right to continue the use of the firm name, nor to designate himself as the successor of" the firm, but may describe the place of business as "formerly occupied by" the firm, and himself as "formerly" or late" of the firm. 66 them becomes the assignee of the unexpired a continued use of the name of the firm, as, in such case, plaintiff would have remained liable to the risks and burdens of the business, and, if his name remained upon the signs or other advertisements of the firm, he would have been bound to any one giving credit thereto, in ignorand ance of the facts of the case, liable for all debts contracted in the This action was brought to re- firm name; that defendant had no strain defendant from using plain- right to declare himself the "suctiff's name in his business. It ap-cessor of" the firm, as, in so doing, peared that plaintiff and defendant, he would represent not only that who were dentists, had been in the firm was extinguished, but that business together for several years; the plaintiff had retired from busithat upon a dissolution of the firm ness; that defendant might lawdefendant became the equitable assignee of the unexpired term of the lease under which the firm held its place of business, and the sole owner of certain partnership prop- Judgment of General Term, aferty and fixtures. There was noth- firming judgment for plaintiff, afing in the former relations of the firmed. parties, or the express terms of the agreement of dissolution, which gave to either one the goodwill of the business conducted by them under their firm name, nor was either in any way restrained from continuing the practice of his profession on his own account in any place. fully describe the rooms as "formerly occupied by" the old firm, and himself as "formerly" or "late" of that firm. Opinion by Danforth, J. All concur, except Folger, J., absent. APPEAL. N. Y. COURT OF APPEALS. Decided Jan. 13, 1880. The Court of Appeals can review judgments After the verdict in this case, defendant moved for a new trial upon the minutes of the judge before John C. Cochran, for applt. John S. Morgan, for respt. Held, That defendant, having the exclusive right to occupy the rooms of the firm, acquired, as an incident, the benefit of the goodwill connected with the business, but not the goodwill which may be said to have attached to the professional whom the trial was had, and the reputation of the firm, 1 Hoff. Ch., motion was denied. Judgment was 70; 62 Penn. St., 81; 4 Sandf. Ch., then entered upon the verdict, and 379; that the goodwill defendant defendant then appealed from the acquired did not include the right to order denying the new trial, and Vol. 9.-No. 20.* |