The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-31

Court OF Csnms0 H1eas-6eAeral Term.
Before Hon. JUDGES Ingraham, Daily, and Woodruff
nay sS-D.maosa -Iasass, re.po.dsns, y. Nssal,
uppawt In scton for injury to personal property,
oo1uitrsd by wife, it being hsr sole act her husband
husband and wife properly b sojonsd as dsfsad-
nso. IN what he disposed q 1 nss. aus.
touching the sanissisi'y Of evidence The case
was ordered TO stand for further return,
the coming of which the Judgment Is affirmed. with
costs.
Kaney appellant Grerey, respondent
tion 20 recover goods which and sold
fepdAnts wife, she knowing that they stolen, the
defendant, the absence Of any testimony to show
knowledge OF the transacton liable without proof
Of demand and refusal Where witness impeachss him
All nv admit,ine the com of larceny on several
ccasicns evidence his honesty former occasions is
not proper to sustain his character for truth.
Sasmore Us Kar7sn9.rga -wners person having
assignment OF the lease as security turned the to
defendant upon an agreement TO pay the rent and taxes
defendant neglected to the taxes held that plain
till could the taxes, and compel repayment Of the
by action against the defendantsuch yment
not voluntary payment which could not be rendered
back party who1s personally liable for whose pro-
perry subject TO DISTRESS for taxes may in default of
the person who ought TO make payment discharge
the tax and compel repay ment.
Gosydser appellant u.s. Carmack, respondent Defend
ants, in blasting rocks on their lot had right
throw the lot of the plaintiff held BY him IS
tenant to extend their blast orcbly to split
out the rock the plaintiffs lot and undermine the
foundation OF his house and render it Whether
this is done neggenty or by the of all reasonable
care he defendants are liable The plaintiff in such
for the injury to his possession injury
to the freehold and may recover for any damages be
sustained for an interference with his possession
UD0HReti respondent. rs. Smith, appellant Where
debtor underneath bill rendered him By his creditor
drew order upon the defendant terms Please pay
the above and charge the to of s. - and
the defendant upon the of the order
wrote thereon " promise to pay the above before
order bill of exchange, and that the defendants
promise Was not within the statute Of frauds void
for want Of considerat ex pressed in the promise
Reddy, respondent Carpenter Ct al appellants In
action for work labor and mat erials upon his en-
ployment to do a particular work thu defendant can
iuui1af Al aaliau
by him 70 have been sustained by the negligence or un
sknfuness Of the plaintiff in the performance Of other
work, at different time ana place having connection
with nor arising out of the transaction which the
relates.
1851 applies to where the contract made
fore it's passage the labor performed the
rails furnished afterward and is not in that respect
constitutional The claimant must sho thata payment
has become due from the before he is entitled to
recover judgment OF pon.sut dismissal of proceed
ing ON the trial Is clear 10 second proceeding TO enforce
the same lien.
default and defendant shows that he mistaken until
the day Of the return Of the such
be ground for ordering trial The defendant must
also show that manifest injustice has done
affidavit Of the defendant is sufficient when the
same Is conradicted by the defendant and of witness
who proves the claim. Where defendant seeks to OBJ
tam new trial under such circumstances he should in
addition 10 his affidavit furnish the testimony Of
witness to establish bis defence.
Tucker Grahty,-Under the mechanics lien law it
pear proceedings TO forecose the lien that notice
does not state when the lien fled Where a sealed
covenant for the OF building provides for such
alteration and additions the may direct, the
making Of addition alteration is such consider
alton for paro agreement by the modifying the
sealed instrument will make such paro agreement
Neys1 arpauan, Us Tse,aae, respondent ON trial in
the Justices Court the Judge is not at liberty
duge in loose speculation, with view do what he
upon the whole may conceive be equity He must be
thereto.
De'osy rss g rs Fsssr, q al appellant this
of ne
below ought to be disturbed on appeal
tion and Conversion Of paintias goods if an sctna
wrongful detention is proved evidence Of demand by
PENDANTS original possession lawful.
Same Us Sone-When rent is payable in advance, the
tenants actual occupation after rent becomes payable
not defeated BY the dspo-sesson of the
statute until middle of the quarter
Munse BoscoTth- The evidence in this was suf
Acent TO sustain the fhdDg OF the court below Judg
ment affirmed with costs.
ground Tor Diminishing appeal that the ice appeal
does not state the grounds thereof Tie court appeal
trial below, to order trial upon the ground of
newly discovered evidence in this Judgment held
not against the weight II evidence.
Aul9an Hagen Action for Injuries to Real Proper
ty-When the plaintiff ntermarried with his present
band having died ntestate leaving three chdren She
in possession of her infant children and
that possession continued after her marriage with the
plaintiff He though living with her upoa the premises
had not such possession as would entitle him to main
W.
The husband and wife might have joined the action
the plaintiff might alone plaintiff having recovered
judgment in his name for the injuries done. Held
that the judgment be affirmed with liberty the plain
tiff he SO elects, to amend the proceedings by adding
the name of his wife. Such action may be brought
in the Marine Court as possession Is sufficient to main
tain it against wrong doer No question of title
involved unless the fact OF possession is in dispute
which being the here the Marine Court has u.
risdictou all the Judges concurring.
EslAne Weeks-sec l42 of the Code does not apply
in the made before the passage of the code
previously in force. Ihe case of Ward Thomas,
Barb. AS aissensed from, three judges concurring
where the defence up that the of action did
not accrue within six years, the plaintiff not re-
quired before the last of the Code set up
promiAe in his replication that it did accrue
within SIX years was sufficient, and the question of the
promise is matter of evidence Ingraham and Daily
concurrtng, Woodruff dissenting.
Clark Us. Atkinson "A complaint upon a note merely,
10 which he defence is the statute of limitations under
the banking act. is good, and yet may imply new
promise. Where the defence is q discharge in sann-
rupcy new promise is only available when made to
the holder of the note and the be assigned
enable any other party sue upon it, Where the in
dorsee of the note to whom the promise is made
signs IL and becomes witness TO prove it, he is
within the meaning section 800 of the Code
the defendant has right to be witness to the
matter.
7dgga,t Us. Roose,slA parol agreement for renting
real estate made for one TO at future
time not void under the provions Of the Revised Stat
utes respecting fraudulent conveyance. Where posses
taken under parol lease by the statute it
tenancy from year and cannot De ter
minated by either party except at the end Of the
parol agreement for year. TO in future
ia not void under the provision of the Revised Statutes
carng certain contracts void which not to be per-
formed within year from the making thereof
EIdugh German Reformed Church 1t is too late to
object to the irregulary Of order of reference after
the parties have appeared and proceeded with the refer
before the referee II is necessary that the
judgment should be entered by the clerk.
Fsedon Jones d Ctrncy-Where goods sold upon
an Agreement TO take note Of third party in payment
and deliver after receiving the note the vender has
right If the note is not paid at maturity to return 1t
and demand payment Of the goods from the purchaser
Where tho note given by the maker the payee upon
promise to deliver stock for IL at future day and the
payee passed the note to third person to pay prece-
deaf dsbt for good consideration, the might
be recovered from the maker although the person to
whom the note transferred had notice Of the promise
to deliver stock for the note before he received it.
Stm0nsoN ". sAeyers.-Proof that dog had bitten
keeper and that il had been said he had bitten person
before net sufficient evidence establish that he
accustomed to bite as to render the owner liable.
Aunso~ %. Reuy-Where the landlord agrees with the