The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-05-01
Common Pleas-General Term.
Before Judges Woodruff, Ingraham and Daily.
DECISIONS,

Before Judges Woodruff, Ingraham and DAILY
Arnn as-pusps o. GysyMwoodruf. IA p.ro,
promise made By debtor upon the request Of hs credi
tor that he win pay for bin Of goods be delivered 10
in consideration of which promise the seller delivers the
goods is valid promise The parties being all present
tGnto by the creditor to the seller OF the by
the debtor aud such promise is not within the statute
| of frauds.
Gay ps. Broson-wooaruf. jim a proceeding un.
der the Mechanics' Lien law forecose lien claimed
BY the plaintiff the plaintiG must show that ths work,
nifty with contract made By the for erection
OF the building " has heretofore been held that where
the building erected by purchaser of the lots his
benefit the vendor Is the owner the building
within the meaning Of the lien Law, although the legal
Coolalan vs. 7tnlinsosi -Woodrun jim . proceed
ing under the mechanics lien law of 1851 by an en-
ployc Of contractor against the owner such sub
contractor competent witness for the owner to defeat
the claim.
Qpere-whether an employee of sub-coatractsr car
acquire lien under the law Of 1857
Etaueh vs. the German Reformed Church Of Moo York
-Ingraham, ia contract made with the trustees d
tedo Of religious corporation is valid, although the
election of such trustees afterwards adjudged TO
have been illegal When such contract made after
decision by the Chancellor that the trustees making it
legally in Office, the contracting parties not to
be charged with knowledge Of the ilegality until such
decision reversed but they to be considered
acting under belief Of the legality Of the proceedings
Although the act Incorporating religious societies pro-
vdes that the salary shall be paid out Of the revenues
still the plaintiff may compel payment Of monies due him,
Bridal rs Kr4se-woodrun J.-Held that proof that
nothing due by the to the contractor when
the notice of claim was fled and that nothing has since
become due competent evidence in favor Of the
in proceedings by material man against such owner to
foIsclose lien claimed under tho Mechanics Lien law.
Dyots vs. LGrgc. Jlt Is necessary for the
claimant in proceedings to oreclose lien under the law
Of 1851 to show that the work, &C., claimed for,
tract With the owner OF The building In an action TO re-
for the OF hosting apparatus described In
general terms in the plaintiffs bill Of particulars, 1t il
afaptf nUtya In rycfth
the opinion Of witness who has the appara
tus heard description thereof testified to- unless IL
appears that all apparatus answering such general des
crpon is alike valuable for the purposes which IL
was employed.
ordered appeal from the inferior courts whom
erronsously entered through mistake, and will do 20
when injunction is caused thereby When application
Is made in the name OF plaintiff to allow sst.onf Of
tho Judgment AID such application made by the plain
ssonS e on ,n net usas iaai
to such allowance that the attorney is intended In the
judgment If that be true it is such attorney and not
The adverse party, that can be preudiced BY tho ALLOW
Ance OF the motion.
Fb,cler ". Abrahans Woodruff Jan action on the
in the nature Of deceit will lie for false warranty
sale Of goods if the warranty by express, though
assumpst is in modern times the more usual rendng.
II such action not Necessary 70 nege or prove that
aver and prove the warranty and that the warranty il
false fraud be averred it is not necessary that it
should be proved to enle the plaintiff to maintain tho
action Therefore where the plaintiff averred that the
defendant by falsely and fraudulently warranting
horse sold him to the plaintiff &C.," lin the ancient
form Of declaration in actions tho case for false
warranty and the trial proved express warranty
and that it false Held, that he entitled to
cover although the jury found especially that there was
no fraud.
Pan Ripper -. Ack1man.-Daly Upon . sale Of
casks article of merchandise which afterwards
turn out to be leaky where there 10 fraud and
press warranty, the loss falls the purchaser and
On the seller. Otherwise, il the casks made by .
cooper to orderfor in such this Ii implied
ranty that the article Is cit for such articles
usually and the maker whatever may be the price
agreed upon can recover no more than the actual value
RoSsey Gtcy~ns-Daly, ia defendant ID not enti
tied to an adjournment matter Of right because his
toe 10 grant it furnishes ground for revising the
Judgment To ntitle appellant to avail himself Of
mony II must appear BY the return that the appellant
objected to the admission Of the testimony upon tbs
trial receipt is always open to explanation.
Vockrein Us. Casstdy.-Judgment affirmed
Po,ner d Broom Us. Root-Woodrud 1.-THE evidences
In this sufficient % warrant the finding Of the
Necork India R,sb5er Company rs Bishop-woodrun
Where the holder Of a note payable at q bank ne
elects to make presenment for until after the
usual business hours he runs the risk OF finding 1T the
bank person authorized to pay il the funds provid
cd there for the payment or authorized to refuse II
they not Whore the funds in fact provided at
tho bank and after the usual hours of business and for
the presen'ment Of notes. the note presented there
therefore could not pay the note the prosentment was
not sufficient, although the clerk not being that
tho funds were there answered to the demand,
funds" ana although if he had been aware that the
funds were there he might have certified the note
that i was good the only why the note not
paid being that 1t was not presented within the usual
hours nor person authorized to pay. The present
pen was not sufficient.
=, He,denAeiner Lysn e. al-where the Justice re.
turns that the 5efendants did not appear in the cause
and that he received statement OF facts from the attor
neys OF the parties which he rendered judgment with
out examining any witnesses, the Judgment 10
yersed.
II seems that whore the Is against Of two
defendants by fictitious name, and is served by copy,
1t should appear that the summons served ut the
residence and place of business Of defendant whose
name is afterwards inserted defendant he does not
appear or the return Of the summons Where the
plaintiff received from the defendant note OF third
person in payment Of the defendants note and delivered
the latter note up to defendant, such payment dis
charged the defendant, although at the time Of the
transaction such third person became insolvent.
FYdherty rs. Andrews. - Woodruff J. - Although q
tenancy has terminated by expiration of the term by
payment Of rent there has been agreement to
surrender the landlord has right to enter by
and put the goods and family out without process.
Spdtdirg King e. dJ-naly 1.-THE claimant under
the lien law, before he maintain action against
the owner, must show that payments due under the
contract with the Where the defendants offered
70 show that they paid 5000 the contract before the
more than due by the terms Of the contract the
contractor abandoned the contract-held that 1t
complete defence, and that the Justice improperly
cluded il.
Parler Rdphde-woodruG 1.-THE questions in
this appeal questions Of fact We think the evidence
was sufficient to sustain the finding Of the Court below
Supreme Court-Circuit,
Before Hon. Judge Mitchell.