The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-12

jury 9-Nil1 y Eagle LIFE lnsswuace OsRpdnrk-Is-
judgment b. ~ opened - sss- trial ssasrss Srs
The jucgmsnt u ~sd TO st1d 9s}seurity, = reqs$ .
he sscopd ts sissout rsssesc 70 the prsysus uds-
nent Such, however, Is not the present case. The
plaintiff having recovered verdict entered his adg
motion denied but the notice Of entry Of judgment
set aside. The defendant moved for . trial
a motion and an from .sS. y %S ,aSS
appeal the order at special Term was Affirmed The
der AT General fern that appeal should have stopped
judgment at Special Term should b affirmed That part
OF the decision erTeneous, such igment
THE q the ssse but ss appeal .s: %:
for trial As the judgment has not been appealed
from, there no Tnopristy IN Affirming It, and 20
for that purpose been made 70 the Court The order
made 81 Special Term, in eject produces the
suit fnr to vacate the Judgment Of amance there
toore entered IL mot necessary In that order 70 d.
rect Judgment of sfBrmanoe 70 be entered If that
is necessary IL only be done appeal to the Cen
been served the defendant IL late appeal to
the General Term. and then 70 the Court Of Appesls
The first error IN the entry Of the decision Of the Court
in this matter should be corrected and with view Of
relieving the from AL difaculty that poiat IL
1854 directs the Judgment at Special Term to be a.
rmcd be vacated that the portion Of the order at spe
cisl Term made on the 4'h hsy 1854 which directs
and that the residue of the sad order vacang the dg
n Of sfrmspce entered the 18th dsy Of February,
1864 be sed that the plaintiff be Ut liberty to vacate
the Judgment heretofore entered By him. and enter
Judgment for the received and COSTS within
ten days from the entry OF this order may proceed TO
Civ new notice of entry Of the SAID Judgment as he
fla be advised in lieu OF the Notice OF entry OF judg
men which ordered to be stricken out BY the order
of 1sth Lee nihcr, 1852. tt.e*--9stssea
Grdv AdminIt oty L. de- nc. Davis -INGRABAM FL
Wb DO individual opinions TO the right
q The plaintiffs to recovery In this case we feel bound
Judge Of the Court Of Appeals when the former ar
guent Of this in that court they reversed the non
suit granted upon the trial. and cent the back for
trial; Judge Fcote then said the Court not
much IN error in taking the from the jury in
hol ing the facts were not to sustsia the
Court should have instructed the jury that the facts
sufficient for the purpose. Judge Gardiner also
evidence insufficient and should have left the to the
jury IN obedience to these intimAtons the has
been again tried All the material evidence In the case
material matter 1t Is by adding Testimony OF contra
dctory character which makes It more proper 70 sub
init the case to the jury than was apparent in the first
trial We think should be wanting in due respect to
the Court Of Appeals should listen TO the arGu-
cn AZ the appellant in favor Of me motion to di,miss
the complaint. The fully submitted to the
jury and they have found In accordance with the views
Of the Judges in the Court above The motion for new
trial must be denied with costs.
Ner York and H0tre Steam Navigation Company Is.
Daniel Yotna -KcRAnsM, +. j. Tho plaintiffs claim
for freight for goods brought In one Of their vessels
sssignees On the arrival Of the vessel the goods were
bonded warehouse After the goods sent to
the warehouse the consignees made an assignment 70
the defendaut and also assigned to him the bill Of lad
ing upon which he received hs goods from the public
stots on Iayment Of the duties This action Is brought
who received the goods bill Of lading and not tho
consignce, is liable for The freight (Benton sachem
settled TO be the law a Deno no. The only point of
difference in this Is that the assignment was made
the " the s s E. as
the coDsgpec there might he for holding
the eonsgnee lAte But such delivery is not for the
directs gene al order for that purpose A compliance
with that order does not deprive the plaintiffs Of their
right to clam the freight from the person who receives
dence Of delivery and the receipt Of the goods ~ an a.
signee Of the bin Of lading renders him liable for the
livery of the goods until the party having
Il hill Of ladiDg claimed them That person the de-
and received ,bem. grcnno for relieving him
from the liability for freight In the in Denic,
10 one pare. had be. cent to the public bic, store long
sgnes no! Liable The Of the proposition follows
If tho ccnguets are not liable the assignee is The judg
Rsae rs. Roberts --lyGRanAx i. I'VE have on
severed occscions expressed the opinion that the 86th
section Of The Code not applicable to where
the defendant appeared the return Of tho summons
ton provides for opening Judgment BY default emily
In this the defendant did appear and by successive
sdiournmens the case was postponed On the last Nd
vas teien and Judgment rendered u can never be ad-
mted TO be good excuse that the defendant forgot to
attend 10 cause the adjourned dsy. II so, defend
ants Wiz DO apt to present such an excuse very fire.
q, emily and Judgment by default will become
uncertain remedy than a judgment upon trial Even II
the sect was sufficient such case the
that the defendant 10 attend Court the
adjourned day 10 not sufficient Upon the merits,
think the evidsnce vas sufficient The defendant was
tn pay $50 delivery of the deed for certain lots pur
chased by defendant. The money payable ON the
delivery Of the deed within thirty days from date.
days from date not part of the condition which
the money TO be payable but is 10 be construed
specifying the time at which the defendant bound to
receive the deed undS the contract with the purchaser
Even IL IL 10, sn the return not show that
the delivery after the 80 days but the contrary
that the deed was rendered in pursuance of the agree
ment between the parties. In the absence Of any Co
fence, think this makes out pyfma fcae Of COM
plying with the agreement The deed was refused but
The acceptance Of the deed part Of the condition
The mere delivery all tina. required The ten
der Of the deed all that necesssry 70 comply,
and the defendant refused to receive it, hecould not
by that act defeat the plaintiffs claim. We cannot look
at an affidavit which contradcts the Justices return
The only remedy in such il By applying for fur
Their return. II the return Is incomplete, this Ia the
only way 10 correct the II to take H.
dayits as sufficient for such purpose the appeal would
Be decided not in tie return but on The adavits AM
davits only be received In two cases-Frst, where
an error in met in the proceeding not affecting the merits
has been committed and second where the defendant
has failed to appear and seeks thereby to his de-
fault In all other the Court only Be governed
by the return The result OF this operate hardly
to the defendants interests but must Be governed
BY general rules in the hearing Of these appeals and
although the enforcement OF them may seem hard In
individual csses s the advantages Of settled rules Of
construction Hrmy adhered to win be most satisfactory
to sutors. Judgment affirmed.
Before Hon: Judge Woodruff
July ll~-EHsd b. Bennett, By her merit friend
rs. -Adoieson j. Bs.nat-On the report Of the refe-
the court granted divorce upon the proofs taken
as to alleged acts Of adultery committed by the de
PENDANT in May and June, 1854.
Supreme C0urt-GeneraI Term.
july l0.-1M Canal and Walker street erfeu.
sion and ridening.--In consequence Of the absence
and indisposison of Judge Watson, (who pres ided
in this case instead Of Judge Mitchel) the decision
OF the Court was postponed until Monday, 3lst
July.
before Hon. Judges Mitchell Roosevelt and Clerke)
DECIsIoNs.--I Tracey Va. Iniea.-NeY trial Qranf.