Held. 1. Plaintiff was not entitled to tain real estate, and was referred by the ant herein, or the value of the shares if Bank to the plaintiffs' attorneys at law, they were not attainable, with all diviand of counsel for the bank, that the dends thereon. title to the property might be examined. The defendant thereupon saw the plaint- the 400 shares of the stock of the new iffs and left with them his abstract and Company, since he made no contract with muniments of title, that the title might it. be examined. The title was not satisfactory to plaintiffs, and the loan was not made, and plaintiffs sued to recover for services and disbursements in the examination. Held. 1. That plaintiffs' relation of attorneys to the bank was incompatible with any implied-like relation to defendant in this transaction. 2. That no general usage or custom as to the payment of fees in such cases was shown to exist. 3. That it would have been competent for the bank to have exacted from the defendant the condition precedent that he should pay for the examination of the title. Norwood et al. v. Barcalow. N. Y. Common Pleas, Gen'l T., June 28, 1875. Opinion by Larremore, J., Daly, C. J., and Robinson, J., concurring. Parties to suit. Defect of party defendant. IV. Plaintiff obtained certain leases and ice privileges for the National Ice Co., for which, and for the further consideration that he should surrender 1,500 shares of the stock of the Company, that Company agreed to deliver him 400 shares of its stock. The persons who were interested in that Company formed the corporation defendant, and assumed all the liabilities, debts, and obligations of the National Ice Co., and took possession of all its property, rights, and privileges, including all the leases and ice privileges procured for it by the plaintiff. The court below found that the plaintiff was entitled to 400 shares of the new Company, the defend 2. If the individuals who organized the defendant were the same who composed the National Ice Company, and if the defendant had no other property but that transferred to it by the National Ice Co., and the office, officers, seal, etc., were the same as those of the National Ice Co., then that Company maintains its existence, and its capital stock could not be the stock of the defendant. If the plaintiff had stock of National Ice Co., that would not entitle him to stock of the defendant. Conant v. The National Ice Co. of New York. N. Y. Superior Court, Gen'l T., Aug. 3, 1875. Opinion by Sedgwick, J., Curtis, J., concurring. APPEALS FROM ORDERS. Substantial right. Election of cause of action. I. Plaintiff was ordered to make his complaint more certain and definite. He pleaded on a cause of action on contract, and, also, pleaded on a cause of action on his avoidance of the contract, because of defendant's fraud, and injury thereby. Held. 1. That no substantial right is involved in ordering a pleading to be made more certain and definite. 2. If a substantial right is involved here, the defendant has a right to know on which cause of action the plaintiff relies. 3. The plaintiff is not injured, for he must elect at some time on which cause of action he will proceed. It is a mere matter of form to him. 4. A cause of action on the contract is not consistent with a cause of action on appeal from the order as a whole, and the avoidance. Faulks v. Kamp. then relief might have been had in case of reversal, in which case the court below N. Y. Superior Court, Gen'l T., Aug. 3, could settle the proper terms. 1875. Opinion by Sedgwick, J., Curtis, J., concurring. Discretionary Order. Affidavit of merits of action in tort. I. Plaintiff took an inquest in an action The Tribune Association v. Smith. N. Y. Superior Court, Gen'l T., Aug. Opinion by Sedgwick, J., Van Vorst, ATTACHMENT. in its nature. claimed by him to be in tort, for want of Second attachment may issue. Ex parte the filing of an affidavit of merits, and the Court below opened the default on terms. Plaintiff appealed. Held. That the order was discretionary, and such an order can be reversed only where an abuse of discretion appears. I can perceive no such abuse here. Quere. Can an affidavit of merits be required in an action in tort? Lehmaier et al. v. Griswold. N. Y. Superior Court, Gen'l T., Aug. 3, 1875. I. A second attachment, under Sec. 227 of the Code, may issue when the first attachment has not fully secured the debt or damage. No notice of the application need be given. That might defeat the purpose of the creditor or party claiming relief, by enabling defendant to move, conceal, or dispose of his property. The provisional remedy by attachment, under Sec. 227, is quite distinct Opinion by Sedgwick, J., Curtis, J., from an attachment under the Rev. Stat. concurring. No original power at General Term in motions which must be brought at Chambers. Practice. II. Defendant moved for leave to amend his answer, and leave was granted on payment of plaintiff's costs and disbursements since the notice of trial. Defendant appealed from so much of the order as required the payment of costs and disbursements. Held. 1. The proper construction of the order is, that it would have been denied except upon terms, and so the condition is essential and cannot be separated so that an appeal would be available. Evidence of negligence. Must be positive. Right of passenger to leave street cars by front platform, when. I. Action for injury to plaintiff's son from negligence. He had taken passage on defendant's car, and in seeking to leave the car went out on the front platform, the passage-way and platforms being crowded with passengers, and the rear platform so full that no one could get on or off. The car was checked by the brakes on approaching the crossing of a street, 3. The proper practice was to take an not in an extraordinary way, as far as is 2. The General Term, to entertain and act on this appeal, would have to act as of original jurisdiction, in the motion, which it does not have. shown, and the boy was found beside the request of the defendants, to third parties, car injured, from which injury he died. for the amount of it, which they paid at He lay between the car track and a bank maturity. The goods proved to be inof snow. There was no further evidence. ferior to sample, and plaintiffs gave noPlaintiff offered to prove that the Presi- tice of rejection, and that they would sell dent of the defendant endeavored to settle them at a specified time and place, on the matter by a payment of money; but defendants' account, if not previously the offer was overruled, to which plaintiff taken away, and payment made of adexcepted. vances and charges. Nothing was done under the notice by defendants, except that their agent accepted the return of five dozen of the gloves, with a view of making a sale of them. The goods were sold according to the notice, and the proceeds, not being sufficient to cover plaintiffs' advances and expenses, they brought suit for the deficiency, ($484.07,) and obtained judgment. Held. 1. That the boy was justified in seeking to leave by the front platform in the condition of the car. It was natural and reasonable that he should do so. 2. That the plaintiff cannot recover, as there is no evidence that the defendant committed any wrong to the injury of the plaintiff. It is not enough in such a case as this to show a probability of negligence on the part of defendant: there must be the clear evidence of the commission of some aet, or the failure to do defendants, and claimed balance due some necessary thing. 3. The offer to prove that the President of defendant offered to settle the matter was properly overruled, for there is no evidence that he had authority to bind the defendant; and besides, it is the policy of the law to encourage the settlement of litigations, which would be defeated, if the negotiations could be given in evidence. The complaint set forth the receipt of the goods by way of consignment from for advances and charges after sale of goods. No reference was made to the original transaction. Defendants denied, and set up the sale as the only transaction between the parties. Held. 1. The plaintiffs had a right to reject the goods for non-conformity to sample, and were entitled to recover the amount they had paid as an advance for defendants' benefit. 2. The goods rejected, as not those Payne, Admtrix. v. The Forty-Second purchased, remained in plaintiffs' hands Street and Grand Street Ferry as defendants' agents, trustees, or consignees, and, on the neglect of defendremove them, the plaintiffs them for defendants' R. R. Co. N. Y. Superior Court, Gen'l T., Aug. 3, 1875. Opinion by Curtis, J., Sedgwick, J., concurring. CONSIGNOR AND CONSIGNEE. Purchaser of goods rejected for non-conformity to sample is a consignee. His duty in such a case. I. Plaintiffs agreed to purchase 105 dozen of gloves, to be manufactured in France or Brussels; and on the arrival of the invoice, gave their acceptance, at the ants to 3. It was the duty of the plaintiffs to see that no injury came to the goods by reason of any wilful disregard on their part, of all care and attention, although the defendants themselves, perversely or negligently, abandoned them. Lewis et al. v. Tucker et al. N. Y. Common Pleas, Gen'l T., June I. Plaintiff sued defendant for wharfage of certain boats on the north and south sides of bulk-head at wharf and docks in the possession of plaintiff. On the trial defendant offered to prove that plaintiff was not the owner of the south side of the bulk-head, and having pleaded a setoff of $300, as for damage for plaintiff's neglect to tow his boats, objected that plaintiff should not have judgment for want of a reply. The offer and the objection were both overruled. Held. 1. That the defendant's relation to plaintiff as for wharfage was like to that of a tenant, so that he could not dispute plaintiff's title. 2. That a set-off cannot have the effect of a counterclaim, as the theory of the Code is that he must plead the counterclaim, as such. Therefore no reply was requisite. was not accepted, and was protested, and plaintiff having negotiated the draft, paid it. Defendants on the trial set up a non-liability on the draft, on the ground that the draft was not for the full value of the beef delivered, plaintiff being authorized to draw only for the full amount, and that the plaintiff was not the party in interest, having assigned the draft. They, also, took an exception to the admission of a deposition taken de bene esse, on the ground that the defendant, Charles Stettauer, had not answered. On these questions they were overruled and appealed. Held. 1. That the action was on the original contract, and the damages suffered were at least the amount of the draft. 2. That the draft being less than the amount due was not against the contract, the contract not stating that one draft should be drawn; neither does it admit of such a construction. 3. There was no assignment of a particular fund in defendant's hands. The draft was a mere bill of exchange, and The American Dock and Improvement the bill, in all its parts, was drawn as a Co. v. Staley bill generally, and if it were an assignN. Y. Superior Court, Gen'l T., Aug. ment it became re-assigned to plaintiff for a valuable consideration. 3, 1875. Opinion by Curtis, J., Sedgwick, J., concurring. Cause of action. Construction. Assignment of draft, and its re-assignment. Admission of deposition. 4. The deposition was properly admitted, as it was evidence against defendant, Lewis Stettauer. Patterson v. Stettauer et al. N. Y. Superior Court, Gen'l T., Aug. 3, 1875. Opinion by Sedgwick, J., Curtis, J., concurring. CORPORATIONS. II. Plaintiff recovered judgment for beef sold and delivered at a Government Reservation, which delivery was to be and was accepted by the U. S. Commissary, at that place. By the terms of the contract payment was to be made on the first Liabilities of trustees in default of filing day of each month, in drafts at twenty annual report. Cumulating remedies. days' sight, on defendant's firm, at No. I. The Middlefield Marble Co. was organ44 Hudson Street, New York. Plaintiff ized under the Act of Feb. 17th, 1848, made a draft which was presented at No. and had its principal office and place of 45 Murray Street, New York, that being business in the city of New York. The defendant's firm-place of business. It defendants were trustees of the Company. Profit on purchase by mortgagee not to offset deficiency. Appeal from order of Daly, C. J., granting leave to sue on the bond, etc. Plaintiffs foreclosed mortgage of defendants' testator, given on a bond for $35,000, and bought the property in for $38,500, leaving a deficiency of $2,557.15. No relief was sought or granted in the Between the 7th and 24th of Jan., 1874, the Company's note was given for goods sold and delivered to them, and was for $343.69, for four months. On the 20th Jan., 1875, the Company made their report, as required by Sec. 12 of the Act under which they were organized, and it was published on that day, but was not filed until the 29th Jan., 1874. Sec. 12, aforesaid, requires the filing within foreclosure suit for a personal judgment twenty days from the 1st of Jan., annu- against the personal representatives of ally, and on failure to do so the trustees, the mortgagor. Seven months after the severally and jointly, became liable for sale plaintiffs sold the premises for $47,all debts of the Company then existing, 500. They now ask leave to bring an and for all that shall be contracted before action on the bond for the deficiency. such report shall be so filed. A suit was Defendants urge that the profit on the brought against the Company for the sale by the plaintiffs should be applied to goods. offset the deficiency, and that plaintiffs' Held. 1. That the filing is manda- relief was by way of amending of the protory. ceedings in the foreclosure suit. 2. That the suit against the trustees can be maintained, although the Company is sued for the original bill by way of cumulating remedies. Gildersleeve v. Dixon et al. N. Y. Common Pleas, June 28th, 1875. Opinion by Larremore, J., Daly, C. J., and Robinson, J., concurring. EVIDENCE. Held. 1. That there is no authority given to show that the profit on the sale should be applied to offset the deficiency. 2. That the mortgage being a collateral security for the bond, the proceeds of the foreclosure operated as payment pro tanto, and the bond (the debt not being extinguished), could be sued upon. 3. That the Rev. Stat., Art. 6, Tit. 2, Chap. 1, Part 3, Sec. 153 (2 Edm. Ed., 199), does not seek to deprive the mortgagees of a strict constitutional right to Admissibility of expert evidence as to recover on their contract, but confers on handwriting. I. An expert, as to handwriting, may compare the writing of a letter, admitted to be written by a certain person, with the handwriting of that person made at the trial. Roe v. Roe. N. Y. Superior Court, Gen'l T., Aug. 3, 1875. Opinion by Freedman, J., Sedgwick, J., concurring. FORECLOSURE OF MORTGAGE. Leave to sue on bond for deficiency after foreclosure suit. Statute construed. the Court of Chancery the discretion to compel them first to exhaust their remedy by foreclosure. 4. No relief could be had by the amendment of the proceedings in the foreclosure suit. 5. No equitable ground is shown for a refusal of leave to sue. Opinion by Larremore, J. Robinson, J., concurs, and adds that the order of the Chief Judge appealed from should be modified by a provision that the plaintiffs should serve with the summons a stipulation to waive costs, since the restriction of the statute is intended to relieve the mortgagor, and par |