The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-21
Superior COurt--Seneral Term.
Before Judges Oakley, Duer Campbell, Bosworth,
Emmett and Hoffman.
DECISIONS By JUDGE BoswoRTH.

DECISIONS BY JUDGE BoswORTH.
NOV. l9-MarN Stephenson agt tte New York
ard Har!em Railro2d Company.-Tte plaintiff, D
physician and surgeon, brought this action ID re-
cover for professional services upon p Teniat who
was injured by being run over by defendant cars.
The services were rendered upon previous promise
OF superintendent Of the company that the Latter
would pay for them. The powers Of the superin-
tendent, according to the evidence given the tria
related solely 10 running the trains prescribed by
the company, employing men for the purpose, aud
providing for the accomplishment of this result. He
had not, on any other occasion, employ ed physi-
eisn or surgeon. He had not been held out by the
company as having such authority, and his acts in
this case had not been ratified by the company. 1t
did not appear that Teniat was injured by the neg
genoe OF defendant. The plaintiff was nsn suited
and, from the judgment rendered, he appeals Judg
ment appealed from affirmed with costs.
WeSi9rM d Bogsr aga INST lM1rk Lery.-One
Purss contracted TO erect building for defendant
and did 50. xbalance of 81 53l 81 being Que Purss
he assigned the contract to the plaintiffs. They
bri9g this action to recover that balance. The de-
fence was that mechanics and material-men claim
ing to have liens for labor and materials had taken
the proper steps to create lien on the house and
lot for such SUNS as they should prove to be due
thsir claims, which amounted t. more than the bl-
lance owing by defendants. The answer did not
aver, nor did defendant PROVE that these claims
actually valid, and that the amount of them was ac-
traly owing, but me- rely averred that the proper
steps had been tasen to assert the claims and create
Hens icr such SUMS as might appear to be due. Judg
ment was given in favor OF the plaintiffs for the
amount due, and from that judgment TIC defendant
appeals. Held, that the mere service OF notices uu-
der the lien law, and taking such proceedings to
create lien in favor OF the claimants for such
amounts as they shall prove to be due, is no bar
to an action by the original contractor against
the owner, it not being shown that such claims
are valid nor that anything i actually due on them.
Thomas Patton d al. Us. j. j. Y. TVesteryeit.-
This was an action or falsely returning three execu
tons nula bona The defence was that two or three
executions were held by the sheriff when these came
to bis hands and that the property was only sufi-
cent to satisfy of them being in favor OF Vyse
which had been satisfied and left surplus of some
S52, which was applicable 70 the other, being in
favor of Tcler. The plaintiff insisted that the Toer
execution dormant and the sheriff was so bound
to regard it that the Toler payment was confessed
with intent to hinder delay, aud defraud creditors
that the sheriff had been notified by the plaintiffs
while all the executions in his hands and there
fore that facts might be proved this trial aud if
proved would show the returns false and the plaintiffs
entitled TO reco'er The Toer execution bad been act
aly returned auta bona before this action vas brought
The plsi5tHs were nonsuited, and appeal from the
judgment entered on the nohsut. Held, TIA. the
Sheriff vas not bound TO treat the Toer execution "a
dormans-that the plaintiffs could not show ia t1is
action that the Toler judgment was confessed, wirh
intent to oetraud creditors-that the defendant
could MT justify the return upon the plaintiffs exc.
cltons by sho wing that the roer execution to be
false-that in order to Justify return of multi bona
where the debtor had leyiable property, HI must
show ehera priorexecution fully executed, and IA
or such prior execution in bis hands unreturuec
and tie power and duty continuing to apply the re
naming proceeds upon it, Judgment reversed new
trial ordered, with costs to abide the event.
The Mayor, Aldermen and Conmonalty of The
City Of Necc York agt. Phil p DfaJec and others
lessor who has put his lessee in possession of the
demised premises, and during the term tortuitously
iuterleres with the beneficial enjoyment of the pre-
mises, but does not do any acts which amount to a
total or partial eviction, when suiog to recover the
stipulated rent, cannot be subjected to recoupment
OF the damages resulting from such conduct. The
remedy Of the lessee is by action for the misconduct
in which action he will be entitled to recover his
whole actual damages. Cram (n) Dresser 2 Sand,
5 9. II. l25, reconsidersd and approved. Judgment
affirmed with costs.
George Webb Henry Goldsmith and Leon
Godsmah-An acceptance by the psyee and holder
OF note from the makers Of il before aturity aud
in full satisfaction Of it, OF note made bv third
person, though for less sum- il a valid accord and
satisfaction An indorssr Of note thus settled and
compromised, who takes it with notice OF the com.
promise canDct recover upon il Judgment reversed
report o. referee ret aside and order Of reference va
cated cosis Of the appeal allowed to either party
Answer may be amended ia twenty days, and costs
prior to the appeal to abide the event.