New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-12-03

cred DAMAGES. held BE- erroneous Opiaons by Insrs
/ BAN aud DAY, j. eonenrrns; opinion by wood-ua. J..
/ dissenting.
Jp0eNFST kfvtSsrp WITH cosrs gstsss IHr r,,,Srrr,
l. AEFIRNgD WITHOUT COSTS FoR THAT AMOUNT.
William Stevens a.sins; James Brady.
ms. BE a. ey.nce against his client WI hoat show ne hs
assent thereto. Opinion by InErshsm Firsi judge
JUDGMENT REVERSED WITH cosrs.
Humphrey IL Carey and others against Charles H. Marshall
and others
In an seton recover DAMAGES iog collision between
here the Justice charged the Jury that fle PLAIN
has guilty efIesigence that contributed 70 the acci.
dent hc could not he was also bound to instruct
plaintiffs ordinary and reasonable care. Opinion by ln-
/ graham First Judge
ORDER APPEALED FROM AFFIRMED wIrH $40 COSTS To
! FMD ~ TIE APPELLANT To IHb wIlNh>s.
] Alexander Chalmers asainst David Melville.
The Court refused TO furnish witness BY attachment.
peared Tat the snbpons was served at about L oeh NJ
Of the DAY of tia requiring his attendance before l.
fierce IN the aiternoon-that being Sstunlaysnd the wit
having made arrangements leave the City for The
Sabbath aud his fasly being already board the scsu-
boat When the party himself IN fault IN not giving
reasonable witness prepare 10 attend the trial
the OF the witness viii be excused on gnt
grounds When the excuse Of the witness reasonable
and fully disclosed to the party at the time Of the
OF the subr0na aud the witness offers 70 attend tint
moves Tor an attachment he w be charged With the ecss
/ thereon. Opinion by Woodruff J.
JUDGMENT REVERSED COSTS, WIN LEAVE
rLMNrrFT RELIEE WAY
AMENpMESr WHICH HE MAY coNcgIyE HINsELF
ENTITLED ON pAYNENr OF costs 3T Arrt.l'
Though az assignee under an ass ent for the beaeGl OF
guilty OF breach OF trust creditor cannot
judgment the tor the amount OF hs
claim the uedy such apply that he account.
funds that have into his hands ard that trustee b.
eppon;,d 10 execute the trust and IN action pro
ceetg Instituted for such purpose al the creditors must
b. nCu6td parties temporarily interested IN the proper
application of he fund The code has abolished the ais
tcon which exists between legal and equitable relief
sugh be leSa or equitable OF both the party
fame hs action as 70 enable the Court 70 administer The
ar Mar relief 10 hich he may be entitled Opinion BY
! DAILY, Judge.
Nsihen Babcock and Others agt. Ransom Bemsn
Where note made payable 90 nd vidus with thu
addition Of Treasurer and It appeared that he the
Treasurer Of Cooperation and that she note was trans
fcd TO the plaintiffs by order Of the Company payment
Of tor debt and that the defendant was authorized ~
their Treasurer. TO make such transfer held that h. not
porsore y liable Oh such endorsement Opinion by insrs-
ham. Fiisi Judge
PLAINTIFF FOR 81 i5 WITH COSTS.
femuel b. I'VE agt Robert Ayres.
ProOfof general usage admissible, OshOw that eVc-s}
ituud rom Il, New York. may isi 10 Piermout
10 land hen deck load before delivering cargo a.
II the weasel had actually arrived at New York add
uoua irsranoe effected IN consequence OF the vessel hsv
lag go Fremont after her arrival cannot berecoyertd
nom The owners Of the vessel Opinion by insraham' Frst
oEpER APPEALED REVERSED COSTS APPEAL SO
TO ABIDE EVENT OF SUIT.
Charles D. Mathews agt. Robert Jones
Under h. code of8S defendant eond not notice case
peal such reference the referee had no authority to re'
/ rol in The defendants favor Opinion by Woodruff, J.
Isaac Mix, Ir, sgt. Joseph l.; White
Where Judgment has been taken by default, aiicr he has
arTealed and answered through mlsapPohenson on tho
part Of h def ndan asto the term OF 'he sdounmet quee
whciherhe Cout viii relieve under the bth section oil
the code But the defendant prove 70 tho satisfaction
Of the that manifest injustice has been done An AM
dey H he put IN defense and specifying ihe nature Of
~ not sufficient He must swear IN bis appiGation Tor
Iche the defense he set up was true IN fact and when
the defendant that IL the oundatIon che Court
viii conclude that the Judgment was right Opinion by
JUDGMENT AFFIRMED, WIN COSTS
Wellington Copp against Plat, Rogers and others
Where goods sold firm for cash. but delivered
without requiring payment and the same were not IN TAG
ors with tie tr 20 rs TO require actual notice OF the disco
luton thereof and for want thereof the defendants wea
sbe for goods sold TO some ofhe partners " no continued
the business IN the OF the firm. after te DISSOLUTION
iuDcMENr AFFIRMED WITH COSTS.
Michael McGlnchey against Henry Btten.
Ansrecent BY parole to WORK for the defendant tor two
f tho labor performed and proofof The contract
receivable ia evidence To show the understanding OF tbs
parties to the rate OF compensation OpnOn BY DAILY J.
JUDGMENT AFFIRMED WIN COSTS
Henry Frost against Martin Kulbiei.ch.
stipulation arsces OF Copartnerslp that the one
shall contct debts without the consent Of the otherdoe
noe affect ud person who sells goodsIo the hIm ON credit
IN the ususl cours Of business without notice Of such spu
laon and both parties are liable for goods so sold OPINION
/ ORDER APPEALED FROM AFFIRMED WIN SO COSTS
Henry Carpenter asd another agt Henry Blothe, &c
mortgage personal property winch contains clause
providing for securing tutaTe advances OF sales by the
plaintiff 10 ihe not that account void Ia
law but still good 10 the extent OF adyances actually made
before At the tae OF It's execution. Opnon by Wood
JUDGMENT AFFIRMED WITH COSTS.
Horace II. Day sst Abraham Bsssford.
To complaint Justices Court for goods sold. aud
denied BY the defendant thar he tho plansld demand
no answer Ii IS equivalent 20 the Old general issue lie
should deny the and delivery OF the goods before hs
can upon the plaintiff the proof Of the sale and
Where question OF fact y submitted 70 Justice upos
conflicting testimony, his finding IL conclusive and th>
eoulr val not interfere. Opinion by DAILY, J.
JUDGMENT esyERsED WITH COSTS.
Conrad Fisher Adam Xavier.
/ building denomuaieda shsntee, about twenty feet
spuaro fronting upon 33t-st with chimney window and
door and which divided iato apartnens and occupied
by the defendant snd his family not personal chael
which can be taken an execution under justice judy
nenr
building thus used tor human babiaton must be deemed
psr Of the reality. unless il Is shown to have merely
r,sted upon the soil with i'm pednent It's removal
bat weight. that it upos by whes
! the tenant shkely TO remain. Opinion BY DAILY, j.
JUDGMENT AFFIRMED wfTH COSTS.
Henry Chouteau and others sgt. Ambrose A. White aud
others.
Of Jay TO the Supreme Court and the Judgment
O. tfS Court having been reversed 1t decided proper
The second Trial here for the purpose OF this BE- gov
sued by tie which the Supreme Court acted
nch rcyera Notwithstanding this Court and the Su-
prcne AZ the time Of such reversal and second been
nsde n coordinate jurisdiction by change orgsnza
( ton q our Court. Opinion BY Woodruff, j.
JUDGMENT AFFIRMED WITH cosTs;
James Philpitt and another ast John Clark.
Entries n the hund writing OF deceased clerk made Ia
he MAJ larry be presumed 70 have had Competent
edse, admissible. Such enues admitted 10 show
the sale and delivery Of goods in the regular Of bus
JUDGMENT AFFIRMED WITH COSTS.
Alfred 4. Lesraye sgt. Solomon Wardell.
L defense 10 action for that during hxh
tds the flowed the peuseA 20 as 10 NIUE the
tenant property. OPINION by Woodruff j.
JUDGMENT REVERTED WITH COSTS
Abraham MCBRIDE sst. Peter Crawford
return should present a. the evidence in the Court be-
low That the appellate Court may that the
assigned BY tie Justice supported BY the evidence Il
10 100 late FOR amendment under the Lien Law after he
hss entered upon sdefense and the upon
the ground that nothing sdae by him 70 the CONTRACTOR
not N the notice OF tie lien served upon The
20 70 be allowed for psymenu made by him in good faith
before the filing the l.en and of Court be-
70" refusing TO allow SUCH payment the ground that tie
owner Dot having specified that the payment nsda
unGer the c0asc could have the benefit OF reserved
There being evd Of o,hS Of tho transaction
net~ssn the parties bot wzc under the contract tor
building there could be question involving equitable
considerations in the withholding Of payment in casss OF
different accounts. Opinion BY DAILY, j.
| JUDGMENT REVERSED WITH COSTS, AID JUDGMENT Or
II NlAA A n u AZ A A