The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-28

poratlon counsel, could the owners soil these lanos
because By It the Corporation en-
Ter on the lands and pay for them four months
thereafter and in answer to the remark that the
commissioners, in making their award, would allow
for credit sale, he asked what authority had
they for doing so The law is, the Corporation
may turn the owners out of doors and use their pro-
perry four months without paying for it. He then
insisted that no payment four months after taking
possession could be called just compensation and
in reply to the argument that this provision was le
gal because somebody had net raised the question
before, he answered that it must be a poor princi-
pie that is sustained by such a reason.
The arguments were here concluded, and the
judgment of the court reserved.
Decision by Hon. Judge King
Der. 25.-Jnemi0h o. DonnsH and Thomas Holiohan ads
that upon the payment Of $3.50, all proceedings an
execution issued be stayed 1t appears from the sds
Wit that the plaintiff Lynde held two Judgments in
the above entitled action recovered in 1913 against both
other recovered in June 1912 against
0Donnell alone The judgment in the above action
bond payable in Instruments One Of these In
staments falling due in August 1850, Hoohan who is
alleged to be surety merely for ODcnne applied to him
to know If he had paid the instalment ODonnell said
he had not alleging want tffunds but that II Hollohan
would lend him his note he would get 1t discounted.
Honoban accordingly gave his note for somsthing
procured the money thereon and paid $500 the plain
tiff Lynde, without directing to which Judgment it
should be applied and taking receipt simply for the
amount paid Ly nde applied the amount paid the
judgment recovered against ODonnel alone In Febru-
ary 1851 another instant falling dine the joint judg
ment ODonnel paid the plaintiff another Of $500,
which was applied the joint judgment, and receipt
taken indicating such its application An execution
issues for the of $50 which, the first $500
ought to be applied the joint Judgment Is by that
sum excessive in amount The note given by Hollahan
has been renewed and is still running ODonne Is in
solvent Itappesrs that Holahan was informed shortly
the of the first $780, that 1t had not been
appropriated to the joint judgment 1t to that
Lybde as between himself and O'DoRne had the legal
right to apply, upon the separate Judgment against
the latter the payment, which wss made with
out specific directions to its appropriation; that
had Holahan actually advanced to O'Donnell
the money with which to make the payment he must
abide the consequences Of ODonnels neglect to make
aspecnc application thereof on the joint Judgment but
that Hoohan cannot be considered having advanced
the money ODonnel he has only incurred liabli
ty note not yet paid which he may not be called
upon to neet and against which he may be secured.
That Holot ans equities alleged surety Of ODonne
in the transaction upon which the joint judgment
obtained cannot be considered upon this motion as to
vary his legal liability defe ndant in the judgment;
he has any equities against Lynde he must seek relief
in which sha bring all the circumstances Of
the case before the Court The defendants motion Is
denied with $40 costs to be levied the execution here
in and the stay of proceedings said execution is va
Decisions by Hon. Judge Mitchell.
THE RIGHT OF FISHING ON STATEN ISLAND BEACH.
Der. T.-Tysen No,ton.- This was motion for
Injunction to be continued to prevent defendant from
erecting the beach and between high and low water
mark at Staten Island pier or bulkhesd 1t appears
that the plaintiff conveyed to one Lord in 18, farm
of about 150 and with front OF half three
tiers of mile New York bay, reserving to himself
fishery and the beach for fishing purposes The defen
daDt acquired title under Lord to ten acres having
front about 5 feet with like reservation in favor Of
the plaintiff The plaintiff Toes not show any exclusive
right Of fishery nor the origin Of his alleged title except
that he reserved such rights to himself The defendant
denies that the plaintiff has any right Of fishery any
right to the beach He also denies that the erection will
interfere with any fishing purposes or that he has ever
erection commenced by him pier about ten feet wide,
extend from high to low water mark at right angles
shore and to be constructed Of timber and sunk
with stones. lie and the AffiGavts his side
sustain him that this will not injure the fishing and
that the plaintiff has never attempted to fish on this
part of the beach for three years Generally the plain
tiff must establish his title 1T law before he obi aims
injunction when he claims title right ia real estate
why that rule should not apply here The da-
mage il any, TO the plaintiff Is such be compen-
sated in money; can be readily ascertsned by jury
and II they should conclude that the pier no injury
that it does not interfere with the fishery formerly
enjoyed, in any way injure the beach a fishing
ground the defendant ought not to be enjoined The
evidence makes il probable that such would be the
suit IT, on the other hand, the jury should ind the
damage serious one the Court could II the plaintiff Is
and so fully restore the plaintiff to his rights, or
him to be paid for the permanent injury
noe necessary to determine whether the plaintiff has
legal right to the fishery or not or whether his right
exclusive in common with all the citizens and whe
Their such common right and the reservation enttle
him to civil action The motion for Injunction Is
therefore denied ard the temporary injunction dis
solved, with $40 costs to the defendant.
In the Matter Of the duplication Of Nicholas Dean-rhis
was an application TO be discharged fromrust Sc The
Judge made order confirming the report Of referee
Resignation of Mr. Dean accepted and Thomae NJ Beare
spponted in his place.
CIRCUIT.
Before Hon Judge Edwards.
Der 4-.7etion lor Sicnder-Siepher Weeks rs John NJ
Louure-The parties in this case had been formerly
partners in business. The plaintiff IL member OF the
society OF Friends and appears that litigation has been
going on between him and the defendant for several
year, pact ard Il the present suit which for SLAM
der tried before when sverdct was rendered for tse
plaintiff which was afterwards set AL by the Supreme
Court The Of action arose out OF the following
mstenee:-A check drawn and signed, 1t is
ae by Mr. Weeks for sos In favor of. d. Wright In
the year 1870 On the instant he called TO attend
cu.oner in his store and he placed the check In his
deck. ON bis return from attending the customer the
check though there was no one there at the
time but the plaintiff and defendant Mr.. Weeks then
went and stopped payment Of the check, and drew
other SC0 which with five dollars In cash, he handed
to Mr.. Wright-thus avoiding fusion at the bank
which might have occurred II he lad drawn another
chck for the amount that which he had stopped
Some time afterwards the plaintiff and defendant dis
soved and the SANDER consists In the allie
cations that Lowerre charged Weeks to several persons
with dishonesty. and that he sndant had sid that
the check which had been lost and notified at the bank
had charged to his account and that IL Weeks
himself that took 1t out Of the deck.
Mr. Comftock deposed that he had conversation with
Lowerre after the dissolution, and that he said to Wit
Judge Of my sstonshment when saw charged In
my bank book TO my account, that identical lost check
was charged with the amount and the check was re-
turned 10 me cancelled witness asked him. did he
say that Stephen Weeks stole IT, defendant shrugged
his III uders and said These are the facu Judge Tor
yourself and form your concluions."
DsvdA Fowler depoeed that he Is In the County Clerks
oe and has charge Of the papers which in lsaa were
In the late Court Of Chancery holds depostons In his
hands which In the suit Of Stephen Weeks against
John NJ. Lowerre among the exhibits there is check
drawn by stephen Weeks, payable to j. ID. Wright or
besrer dated fifth month 1870 for slo6 Mr. Gerrsud, ON
behalf Of the defendant objected going over the old
Oh ancery suits that existed between thess gentlemen
Mr. Ed sandford for the plaintiff contended for the
sdmissbity Of the evidence and the Judge ruled that
competent The Judge charged that the pre- OF In
the substantially sustains the allegations In the
complaint and the only question is whether the taking
q the check would be crime amounting TO felony IL
Il implied charge 10 the partnership funds that
would be O felony. The lay within very small
compass the jury decide WHISTLER the charge made
by the defendant sgsnst the plaintiff Implies felony
and they 10 the conclusion that u did then Il
Wa for them 10 say whether the damages should be
emplary not Sealed verdict
The Jurors were several hours In consultation bu.
being able TO agree, were discharged at midnight
0crontR E.--qction ogoind slip Oicners for Loss IF
IL. occascn,d BY alsed D,prtrcti0l Of Sec-Jdne Hat
adp Edt0rf RchorfNo and Brducis