The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-05

death--and mot 10 Be spplicahis 10 Injury In the
present, where IL caused the death Of child Of ten
der years and yet IN state Of dependence. am,
after three trials Tin two of which the jury failed 70
agree,) disposed to concur with my brethren in a.
frming the Judgment, leaving the defendants, II 30
structon Of the statute in question nom the Court
Of last resort. i, ~ rt.-.
Judge Clerke dissented.
Ogden us Eandeyson, ct al-INGRAHAN, F. j.
This action s against surety for rent NO copy OF
the lease Is furnished TO the Court, by which we
can ascertain the terms Of II; and the only fnforma
ton we have of the conditions 10 the statement Of
the counsel that the lease contained clause pro-
were rebuilt, If they were destroyed by fire. The
evidence shows that the building was DESTROYED by
fire on the cath June. Surprising this statement Of
the condition Of the lease to be rue the rent ceased
on that day. and the landlord was entitled to re-
cover for the rent from the lst Of May to the Gath Of
June, payable on the quarter day. LIST Of August
An eviction and surrender are both set up In the
answer by way Of defence to the claim for the Au-
gust quarter, and part of the November quarter.
No surrender is proven; proposed surrender was
talked Of, but not executed, and this lease cc.,a
only be surrendered by writing or by e-.,,on ~
law: Nor DO ! think the evidenc. varrants tha
menee until the premises wer~ rc naS t1 9S
precise terms inns we're Joes not a uss sHs
49, 20 evident from the Testimony that the pre-,
Novemhar i nGs operly finished up to the LIST Of
y -. Jennings 80 testified, and there
ished vs % contradict his testimony. II not fin
waS not payable, and neither Phelps nor Sanderson
AS liable on that quarter for anything. Jennings
appears to have been negotiating for lease at the
same time that Phelps was negotiating for surren-
when all present, and it may be presumed with
their assent all these negotiations, however appea
to have failed. An eviction OF the tenant Is an in
reference with his possession Of the premises, or
tOf hVxu htr11h o 10 uf fho no
Of 1t without his assent; bsat where the tenant !
present at the negotiation for the premises, and
does not object but at the same time ID proposing
q surrender, possession under such circumstances
and particularly before the building was finished,
could hardly be considered an eviction. But even
admitting that for the time during the occupation
Of the premises BY Jennings, Phelps is to be con
only suspends the rent during the continuance of
the eviction. The evidence shows that Jennings
has been removed from the premises, and that they
ton is at an end. The plaintiffs right to
the rent up to June "a appears, therefore, to be
valid one, and think should have been allowed
the trial. The defendant urges that the transac-
tcn between Phelps and Ogden amounted to q sur
render. There is not evidence to warrant such
conclusion; but If it were proved that there was
legal surrender, still that would not affect the plain
tiff claim for the rent Of the portion of the quarter
previous to the fire. 1t is said that such surrender
was alteration Of the contract, which, the sure
ty was discharged. 1t is sufficient answer to this
objection to say that legal alteration Of the con-
tract could be made, except in writing, and the pro-
posed alteration was never completed by the sigma
ture Of the landlord 10 the surrender his accept
ance of it. The defendant also objects to this ap-
peal, that it cannot be taken toths Court until after
appeal to the General Term of the Marine Court
Our construction Of the statute is the reverse Of that
proposition, viz: that appeal to this Court can
only be taken from judgment of single JUS
tice within twenty days after the rendition Of
the judgment, and that no appeal from the
judgment of the General Term win lie to this
Court. We feel some hesitation in deciding that the
judgment must be renewed, because the docu-
mentary evidence before the Court below is not fur
nshed to this Court with the return, and it is only
because the counsel on both sides have stated the
conditions of the lease that we have examined the
points submitted. 1t is important that the Court
should have all the testimony, in order to properly
understand the reasons for the decision below.
From what is furnished to us, we think the first
item Of the plaintiff 3 claim should have been al
lowed. Judgment reversed. The plaintiff may
elect to have o judgment for the rent of the pre-
misses to the oath june with interest from the LIST Of
August, 1853, on filing such election with the Clerk,
| and costs.
| Ellis rs Lepy E. Steiner.-IHGRAHAM, +. 1.-THE
/ affidavit on which the attachment was issued was
sufficient. 1t established the debt that it arose
contract that the defendants were packing up their
goods and had ted the plaintiff they would soon be
beyond the reach Of an execution. The finding o.
| the Justice upon the amount Of work done is con-
elusive, and there s no reason for interfering with
it. The same remark applies to the effect Of the ad.
ELS only claimed 81 "a, or admitted that to be
b lance. He has rejected that testimony, as not
satisfactory. One reason given for 1t is that the
witnesses spoke bad English. This reason cannot
be sanctioned. 1t IL the duty Of the Court, II the
witnesses cannot make themselves understood in
English, to require interpreter and to receive
testimony in language that renders doubtful what
Sas intended BY the witnesses. There was enough
warrant the finding Of the Justice on that point.
The Justice erred, however, in the amount. The
amount Of plaintiffs claim, as proved, was $64.
the By
$ll le-making $l8 Is. This leaves q balance Of
$46 81. Under any view of the evidence, the judg-
ment should not have exceeded that sum- Judg-
ment reduced to $45 50, and affirmed for that
amount and - so costs below, without any costs Of
appeal.
mons was sufficient; all that is required in regard to
the Of action in the summons is statement to
show that it was for cause Of which the court had
jurisdiction. This ID answered by an allegation of
work and labor for services rendered. or as in this
case, for professional services. Either would be
enough to show that the claim upon contract.
2. The evidence sufficient to establish O prima
acie case Of Indebtedness the bankrupt proceed
ings. The Clerk from the United States District
Court Clerks Office produced the papers upon
which, as he states, the defendant obtained his
discharge, and which were conducted by the plain
tiff his attorney and the value of his services was
proven by another witness. So far therefore, as the
eVdencc was requisite TOT taxing the inquest 1t was
sufficient TO establish p,ima facic case against
the defendants. The affidavit of the defendant
shows, as an excuse for suffering, the default to
be taken, that ne had paid for the plaintiff
services in the bankrupt proceedings, and sup
poeed the plaintiffs claim to be for the fee on the
motion, which he did not intend to dispute The
plaintiff denies that he has been paid, but admits
the receipt Of $40, claiming right to the balance
out in the plaintiff affidavit cannot be available In
this appeal, because they form no ground of reco-
very upon the trial. According to the plaintiffs
statement he has received on account of the bank.
ruPt proceedings $20 which was not credited upon
the trial The excuse for not appearing was suffi.
cient, and the fact that he was not credited with
$40 paid, shows that injustice has been done in the
Judgment rendered below. / think therefore, IL
should be opened and q new trial ordered, but the
plaintiff should be paid the $40, which the defend
ant admits TO be due and the costs of the court be-
low. Upon payment Of these sums within ten DAYS.
the Judgment Is suspended and q new trial ordered
The time Of the trial TO he the l4th Of June at
r. Al