New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-07-30

want Of steam, may properly be allowed as damages
RULE AZ TO DAYS WORKS.
Geo,ge SNYDER, ct al az. Rem r. Wight
Where work Is done b. M planti Tor tht eeie,u-
snt under an agreement by hIW TO pay therefor at
6xed prce per day for the time requisite - perform
the worn it il not competent for the defendant when
sued for the work 10 call Witnesses 70 prove tue Vaue
Of the work or what it would cost in Their opinion TO
srocure II DONE
The only question is how much time was neces-
sary expended in the performance of the work and
though The lumber of days may be contr0vered, and
even BE- doubtful upon the evidence, still general est
mates Of ifs cost or ralae are not admissible.
The finding Ofthe Court below UPON conflicting eyi-
dence viii not 10 general be revr Sed on appeal.
...ssoO IA nvt Al scncios nc iv''o'0- 49,
NOTICE NECESSARY is CLAIM FOR PROPERTY.
Caleb T. Howell sgf. Hsnnan f. Kroose.
When On action il brought 10 recover for wagon
alleged to be wrongfuy detained from the plaintif by
the defendant il is not enough to en'lue tue panu1
TO recover that be shows that the defendant TOOK the
wagon from person in possession thereof ana t1at
the plaintiff afferward purchased the wagon from sucn
person while II still remained in the defendants pos
session. HI must further prove thai afteT MS puT-
cbnse he or some ose in his behalf demanded tue
wagon from the defendant. demand made by the
vendor before the sale is not sufficient.
II such an acdon can be regarded az an acton 10
recover damages for a wrongful detention the same
proof Of demand by the plaintiff is necessary.
There being DO allegation Of cOnve' siol by the de-
PENDANT and the transfer 10 the plaintiff not purp0ring
10 ranser any claim for damages for OBTAINING or con
verting the property Of the assignor, the question
whether the claim for damages for tort can now be
so assessed as to ente the assignee 10 sue in his own
name does not arise.
BONDS OF CITY cONsTABLEs VOID.
Alexander Davis William HahneI and mother. M
The Act TO reduce several laws relatns 10 toe Cty
of New York into one net passed in 1913, r r. \ 3i2
was not repealed by the General Repeating Act con-
tained in the Revised Statutes Section ll7 OF the
first named Act relating bonds of COnstabes in the
Civ of New York is seems still in force. The bond
thereby directed should be made TO tie Mayor aad
others of the City, and can OILY be prosecuted after
Judgment anst the cons able and at er leave Is o0-
tanned or motion made in the Court OF Common Pleas,
in open Court.
bond in the form prescribed in the Revised Stat
ues secon q, Il. S. 34G, Telenng 10 towns, and TO
the PCOpe s therefore not 10 be sustained as STAT
ute secuIiiy-aDd judgment having been recovered IN
the name Of the party alleged to have been aggreved
! bv the act of the constable in suit brought without
| leave of Court, and without previous judgment
against the constable is reversed.
This was an action brought ~ ainst the bOpcsnen
of the Constable 10 recover the amount of Judgment
for rot returning execution under he statute when
requires such return to be made within five days.
1t was objected that the bond was void by reason
of lot having been given according TO the statute, and
that leave had not been given to prosecute the bond
| The objection was overrued the point not having
! fully been made, we understand in die Court oeloV,
ana appeal made TINS Court sustains the OBJECTION.
TIE decision applies to the boUs OF al the Constaoes
| in New-York.
TITLE TO LAND IL TREsPAss SUIT.
Jacob Ahause agt John tsse
In en- action for trespass 10 land. uIeess the pain-
G's file s put in issue is to be taken as admitted
on the trial. and possession sufficient 70 enable PLAIN
tiff 10 maintain The action.
Proof of title by lease given by parOl, without OBJ
lection on the trial furnishes ground tor reversa in
such q
The main fact that this Court would not upon the
testimony az II appears iii the return have given so
large a sum as damages, is not su 1ent to warrant
reversal of a Judgment for wiful tori, for which
there is no precise rule by which the damages can be
measured.
sive TO warrant a reversal for that cause
RULE As TO TESTIMONY OF DEFENDANT IL An AS
SIGNED CLAIM.
William G. Carpenter agt. Gilbert Sweet
When the assigner of thing IN acton IL examined
by the plaintiff his assigned the defendant only
off himself az witness 10 the same matter 20 which
the assigner has testified, and not to matter when
does not controvert the facts testified to by such as
sgner but goes i'll avoidance or discharge OF the ma
bility resulting from those facts
Thus when plaintiff proved by such assigner sale
of horse TO the defendant il is not competent for the
defendant to testify on bis behalf TO subsequent
payment for the horse, or release, or infancy, or
other matter in avoidance of the legal Consequences OF
tie facts sworn to by the assigner. Code &c.,
Whether such payment might be testified to by the
defen ant when the purchase and payment were stimuli
taneous and the assgner was examined 10 the trans
actions generally Query.
THE CONTRACTOR A WITNESS IL LIEN CASES.
Robbins agt. Goldman
In an action brought by material man 10 ioreclose
lien claimed under the Act for the better security
of mechanics, &C.. the contractor, although party
defendant, is competent witness for the plaintiff
The interest is balanced.
Whether party TO an action can examine az a wit
ness in his own behalf one of the adverse parties who
is interested in favor of the party calling him. Under
secs. 800, SOS and 399l quere
PAYMENT by VERBAL ORDER OF ADMINISTRATOR.
William Walkley, admir-, &c aet Evan Griffith ct al
When the defendant as agent, had collected moneys
belonging TO deceased nteslato to his estate, and
such money being in the defendants hands, the adj
mnistrator being applied 10 by creditor for the pay
ment of bill against the deceased, sent the creditor
TO the defendant for payment this was a sufficient
authority 10 the defendant to apply the moneys col
lecied to the payment of the creditors aud III an icon
by the administrator against the defendant to recover
the monies collected held that the defendant should
be allowed to set of the moneys paid 20 the creditor
much money paid by the authority of the plaintiff
and for his use.
COMMISSION or REAL ESTATE BROKERS.
Roswell G. PIERCE against Cornelius W. Thomas and A.
Thomas.
broker cannot recover commissions from the vend-
| or on sale of real estate without showing an en-
ployment TO sell or such adoption of his acts and
acceptance of his services by the OwOer as is equiva
lent 10 an original employment He cannot force such
employment services on the owner agaiost his will
and when the owner expressly refused 10 employ him.
suffer him TO offer the property for sale the
ers behalf the fact that the broker sent pur
chaser 70 the owner who negotiated sale to such pur
chaser, does not entitle the broker TO commissions.
! OWNER or PERSONAL PROPERTY NOT BOUND TO SHOW
TITLE.
John Fitzpatrick sgt John Cook and George Capln.
Where vender Of personal properly IN an acton for
the price value proves actual possession and con-
troll in himself and the fact of sale and delivery he is
not bound 10 give evidence of his title; aud the
purchaser cannot defeat his recovery without showing
on bis part either that for want of title in the
vender he has lost the benefit of his purchaser, o. is
liable to other person being the actual owner.
ERROR BY JUSTICE IN ADMITTING TESTIMONY.
Thomas Martin az. John Garrett.
When the return of a Justice shows special finding