The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-03-26
Marine Court.
MORE OPERATIC DIFFICULTIES.
RefnrA Hon Indna Thnxunznu


MARCH c5 Ole Bnt o9dina James Phayen.-About
year sgo the plaintiff and defendant entered INTO ..
agreement by which the plaintiff agreed to give twelve
OPERAS at the New York Academy Of Music commencing
On the evening Of the 10th OF February 1s56-hs pro-
ceeds Of the to be equally divided between tbs psr
ties to the contract. Under this arrangement Phalsa
collected from subscribers TO entertain nents $685.
to recover one half of which, this is BROUGHT II ia
not disputed that S476 80 Of that belonged to ths
plaintiff. But it appears that at ABOUT the period
Bull Max MaTezek and Mr. stakosch 81 OoO to be invest
ed by them in procuring artists for the
!io;s In the city OF New York. This to have
been paid on or about ths first Of April last and was dus
nom The parties Jointly ard severaly Some time after
the $4,000 became due, Mr. Pnalen received In
settlement thereof from Mr. Srrokoson his promlsor,
nos Tor 81 300 payable about the lst May 1856 soma
music ana several other things Tie note however wHe
not PAID maturity and sh remains IN the possesson
tf Mr. Phalen, uncaac lied The defendant Wy Mr. CAL
.sith his counsel clsims to interpose this note az
81 aO0 or SO much BY the jurisdiction the Court
pian'if ME- Buikley, counsel for plaintiff demands
.m lie defendant surrender OF Mr. Strokosshs note
which Mr.. Gabraith re uses TO do.
Thompson J-fbe only question In the case is whether
can allow the OF Mr. StrAkoech to be set of or
counter claimed against the demand Of tae plaintiff Ths
Lote was given for precedent debt due by Strakosch
Bull and Aaetzek in their joint sod several capacities
1t is we'll established principle of the giving Of
a promissoIy no'e of cebtor for precedent simps
contract demand viii not operate payment so "a To
preclude creditor from Iesor,ing The original con
or either iSf the % Of
The giving OF the note therefore, by Suakosch did nut
amount rs pro tdnto pay ment OF the original indebted
mesa to PEaen. What IL lhere then ths. should pre.
vent Mr. Pnslen from n'erposng The claim Ball 80
much of the 81 800 may be we'd by tas urs
cicton OF the Court Cour sci for plaintiff oy de-
manong surrender OF the note the trial. virtually
tonceped the right OF Mr. Phalen to the counter cain
II bs demand hsd been complied with II Mr.. Phslsu
hal teen Tie plaintiff in the ac ion and was sning ON
th. uEsinal claim against Mr. Srkos or either OF the
hf parties to the contract t would have been has
cuty to surrender the note upon the trial As s how
ever, he may retain the endorse thereon apy
sum Tor which Judgement may be given against the de-
tndan tLfLk tha plaintiff ia entitled 20 recoysr Of
Bno from the defendant $500 COSTS
Before Hon Judge Mccarthy.
SUIT FOR INJURIES TO HORsE BY RAIL OAR
Loyue rs. The Second Arenus Railroad COMPANY The
plaintiff is carman, and for damages occssoned oy
one OF the defendants running agsnt hore and
cart appeared from the evidenee that in February
last the plaintiff was recsvipg load Of -four from Q
store in thryse street and while doing so the car
pessed by or at least half of the had passed
when The shaft Of plaintiffs cart struck the car and
threw the plsntis horse GOWN severely njuring him
sAd camsgirg the cart. The defendants proved that
there was tuoien room either sice the rails for
carts and carriages to pass; that plaintiff vas attentive
to his business and KEEP his horse cart In q proper
fact Of the car having passed than half It's fepgth
before the collision had the horse emained STILL the co..
Iion would have been avoided The Court held that the
plaintiff should armatvcy show that he was not ruilt
o negligence snd that the defendants Land further
hst II both parties contributed py any act ot omtsso.
or commission, towards the accident the plaintiff caunos
recover. Judgment for defendants.