The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-02
Common Pleas-f.cneral Term.


BY Hon. Judges InTaham aud Woodruff.
FEBRUARY l.-Potterson rs. OHdra.-Parol proof
to show that the rent, under written lease for the
first year, was less than stated therein is nadmissa-
BILE. Where receipts shown for the full quarters
rent as the rent became DUE and which purpored to
be in Full, such receipts are presumptve evidence
that all previous rent has been paid, although
previous receipts were given for less sums than the
whole quarters rent.
Henry Moss, Jr., rs Dard Brocn.-Judgment
OF the Court below confirmed.
Hanna e. Beebe rs. CoreN.-The Court has power
under the amended code of 1852 to allow Juror to
be withdrawn on the trial, and order the complaint
to be amended by inserting allegations material to
the plaintiffs case. The proper terms are paying
costs OF term and motion, and allowing no costs to
plaintiffs for the intermediate terms il he succeed
Hareas Us. Smith.-In an action for trespass on
real estate, evidence Of the effect of such trespass
while it continued the probable sale of the land is
inadmissible, as being too uncertain and remote j
rule of damage.
Shuteldt as. Gustin and Hnfchias.-Wbere the
landlord leased to his tenant under seal certain pre-
mises for longer term than year, and the de-
PENDANTS became sureties for the rent and the tenant
afterwards by parol agreement, exchanged with
the landlord part OF the premises hircd held that
this was not an alteration Of the original lease with
out the consent of the suretes as to discharge them
from their liability.
Roulston, Respondent, rs. McLeVon, appellant.
"A bailee, without hire, is not bound to keep arti
cles deposited with him after he has offered to deli
yer them to the owner; and if the owner refuses to
take them away, he may lawfully place them off his
premises.
Reilly as. Ncwman.-Whero a defendant appears
in the court below and puts in answer, and subsc
quently suffers judgment by default to be entered
against him. he cannot apply to this court under
ton 3G6 of the code, for new trial. That section
only applies to case where the defendant fails to
appear in the cause.
dnd,ews Us. Buck and othrs.-A notice served
in the morning to produce the trial in the after
noon a the same day letter which was at Catskill,
was too short to admit secondary evidence of its con-
tents. letter written by party to his adversary
and not answered, long after the contract was en-
tered into is not admissible evidence in hisfay0r
Beck as. Uinshomyer.-Wher evidence is ex-
Guided and afterwards received, there is no ground
for Directing that the party who first objected to its
exclusion . i injured By its reception when he does
dence is conflicting to the facts the court will not
review the finding Of the justice.
Bishop Us. O,ore.--Order appealed from affirmed,
with $lO COSTS
adjourn, to enable an attorney to see his Client with
out any affidavit to show the necessity of it, was
properly denied by the justice. This court has no
power on appeal to give relief, on the ground Of sur.
prise. except where default is made and judgment
entered thereon.
Kaufman Us. Holsey-Under notice fled to
create a lien, which claims that the work was done
under contract with the contractor, the plaintiff in
proceeding to enforce the lien, cannot recover for
work done for the owner Where q defendant by
his answer put in issue the performance Of the con-
tract, the plaintiffs bound to make out his case to
show afmativey that the contract has beeen so far
performed as that money has been due on the con-
tract since the lien was created
Gr1dfey as. R0,ciand. The tendency of an action
against the owner OF house under the lien law. for
aclam against the contractor is no defence to an ac
ton against the contractor ut the same time. A
proceeding under the lien law, is foreclosure of a
security, that is no defence to an action against
debtor.
RoseH Is Bphler.-Wherc purchase is made and
bull and receipt given, paro evidence of what took
place is inadmlssbc to add TO the terms OF the writ
ten contract Where breach of warrantee il proven
but no amount of damage is shown by the evidence
the plaintiff can only recover nominal damages
Neville, appellant, rs. Frost, Respondent
a person contracts with another to do work for him.
as an ongraver he is not bound to accept or pay for
the same IL the work Il not done rs well az the con.
tract called for In such he il not bound to re.
celyc an imperfect piece OF work on a reduction OF
the cost below the contract price,