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INDEX.

A

ACCOUNT STATED.

ac-

1. Where the defendant having sold
goods for plaintiff's account sent
him an account of the sales, and
the plaintiff called several times at
the defendant's place of business
for the purpose of getting further
explanations in regard to it with-
out seeing the defendant, and
afterwards, on seeing the defend-
ant, was paid something on
count and promised a more de-
tailed statement of the sales, show-
ing the names of the persons to
whom they had been sold, etc.,
and the plaintiff waited a long
time for such further statement,
and wrote for it, but it was not
sent: Held, that the first account
sales furnished to the plaintiff by
the defendant had not, by the ac-
tion of the parties in regard to it,
been made an account stated. Car-
penter v. Nickerson,

428

2. Where the plaintiff deposited with
the defendant for collection a sight
draft which the defendant sent to
its agent, a corresponding bank,
for collection, and such corre-
spondent, before the draft had
been collected, but supposing that
it had been credited the amount
thereof to the defendant, who
thereupon gave credit therefor to
the plaintiff, and the correspond-
ent bank afterwards having dis-
covered its mistake charged back
the amount of the draft to the de-
fendant, and the plaintiff, being
notified of these facts, refused to
take back the draft or have the
amount of it charged to his ac-
count, and the defendant there-

upon accused its correspondent
with delay in not returning the
draft, and stated that it would be
compelled to look to it for pay-
ment of it, and afterwards ren-
dered the plaintiff an account with-
out charging the draft back to him,
and continued for two years to
render him accounts in the same
way: Held, that there was an ac-
count stated in respect to the
draft, which precluded the defend-
ant from denying its liability to the
plaintiff for the amount thereof.
Harley v. The Eleventh Ward
Bank,
476

ACTION.

1. Any policy-holder in a life insur-
ance company, incorporated under
the general life insurance act of
1853, can maintain an action
against the company for the pur-
pose of compelling a settlement of
the amount of the dividends
which, under the provisions of the
charter of the company, should be
apportioned to the plaintiff as her
share of the profits, and to compel
the company to go on and transact
its business as required by its
charter, notwithstanding, in pro-
ceedings instituted by the attor-
ney-general for the dissolution of
the company, a receiver has been
appointed. Bedell v. The North
American Life Insurance Co., 273

2. The fact that the affairs of a life
insurance company-organized un-
der the general life insurance act
of 1853-are being wound up and
adjusted in proceedings in the
Supreme Court, under the care of
a receiver, will not prevent this
court from entertaining an equit-

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APPEAL.

1. A judgment in an equity case will
not be reversed on account of the
admission of irrelevant evidence
on the trial, unless the appellate
court is satisfied that the decision
of the judge who heard the case
was improperly affected by it. Con-
solidated Fruit Jar Co. v. Mason,

64

2. Where there is no appeal from an
order denying a motion for a new
trial made upon the minutes, the
question whether or not the ver-
dict was rendered against the
weight of evidence, or on insuffi-
cient evidence, cannot be consid-
ered on appeal from the judgment.
Wagner v. Jones,

3.

375

A re-argument will not be granted
except where some question de-
cisive of the case and duly sub-
mitted by counsel has been over-
looked by the court, or where the
decision made is in conflict with
an express statute or a controlling
decision, to which the attention of
the court was not called by coun-
sel. Banks v. Carter,
421

4. By the provisions of section 1316
of the (new) Code of Civil Proce-
dure, an appeal from a final judg-
ment does not bring up for review
an intermediate order which has
already been reviewed upon a
separate appeal therefrom by the
court or the term of the court to
which the appeal from the final
judgment is taken. Wiener v.
Morange,

450

5. An intermediate order separately
appealed from and affirmed by de-
fault, has already been reviewed"
within the meaning of section 1316
of the (new) Code of Civil Proce-
dure.
ib.

6. Where, on appeal from a judg-
ment of a District Court of the
city of New York to this court, the
appellant desires, in addition to a
reversal of the judgment, the resti-
tution of money collected from him
under an execution on the judg-
ment appealed from, he should ap-
ply at the time of arguing his ap-
peal for restitution in case the
judgment should be reversed, and

in case he omits to do so, but suc-
ceeds in having the judgment re-
versed, he should apply for a re-
argument on that point. Cushing
v. Vanderbilt,
512

7. Where the judgment of reversal
is not a final determination of the
rights of the parties, restitution of
the money collected on the judg-
ment reversed is not a matter of
right, and on appeals from District
Courts, in which there is no power
in this court to order a new trial,
but a new suit may be brought to
which the judgment of reversal
would not be a bar, the general
term of this court which hears
and decides the appeal is the
proper branch of this court to de-
cide the question of restitution,
and the special term will not en-
tertain the application.
ib.

8. Under § 366 of the (old) Code of
Procedure, regulating appeals to
this court from the Marine and
District Courts in the city of New
York, which provides that "the
appellate court shall give judg-
ment according to the justice of
the case, without regard to techni-
cal errors and defects which do not
affect the merits," this court may
reverse a judgment of the Marine
Court on the ground that the dam-
ages were excessive, although no
motion for a new trial was made
in that court. Smith v. The Ameri-
can Institute of the City of New
York,

526

-as to amendment to perfect ap-
peal.

See AMENDMENT, 1, 2.

ARREST AND BAIL.

1. An application to vacate an order
of arrest, under § 204 of the Code
of Civil Procedure (old), providing
that a defendant may so apply at
"any time before judgment," may
be made after the rendition of a
verdict in the action, and before
the entering of the judgment
thereon. Fuentes v. Mayorga, 103
2. The plaintiff consigned goods for
sale to one H., and he turned them
over to a firm of which he was a
member, at the same time disclos-

ing the plaintiff's ownership, and
the goods were sold by the firm.
Held, that the transaction estab-
lished no relation of personal trust
or confidence between the plain-
tiff and the partners of H., and
that in an action for a failure to
pay over the proceeds of the sale,
they were not liable to arrest un-
der § 179, subd. 2, of the Code of
Civil Procedure (old), as having
received money in a fiduciary ca-
pacity.

ib.

3. In an action in the Supreme
Court, the defendant had been ar-
rested, and subsequently the order
of arrest had been vacated on the
ground that the complaint united
two causes of action, on one only
of which the facts authorized the
defendant's arrest. The plaintiffs
discontinued the suit in the Su-
preme Court, and sued in this
court, alleging, substantially, the
same facts, but framing them so
as to make a single cause of ac-
tion, and procured an order of ar-
rest against the defendant. Held,
that this second order of arrest
was vexatious and should be va-
cated. Young v. Weeks, 115
4. The defendant was arrested on
affidavits showing that by fraudu-
lent representations as to his af-
fairs the defendant had induced
the plaintiffs under an agreement
theretofore made, by which the
plaintiffs agreed to fill the orders of
the defendant "to such parties as
they may regard safe and responsi-
ble, and in such amounts as they
shall deem proper."-to sell and
deliver to the defendant, and to his
customers, at his request, goods to
a certain amount, a part of which
had not been paid for. Held, that
there being nothing to show what
portion of these goods had been
sold to the defendant, and what
portion to his customers, the or-
der of arrest could not be main-
tained, and that the fact that the
defendant had admitted that all
the goods were sold to him upon
his own credit, could not change
this result, since the plaintiff must
recover, if at all, on the facts al-
leged by them as their cause of
action.
ib.
5. The right which exists to arrest a
factor for not paying over the pro-
ceeds of goods sold by him on com-
mission is barred by the principal's

receiving from him the promissory
notes of third parties, collecting
some of them, and retaining the
others, without any offer to return
them. Trunninger v. Busch, 124
6 The case of Kelly v. Scripture

(9 Hun, 283), and other cases,
where, after dishonor of notes
given by a factor for the balance
due the original cause of action,
was held to be revived, distin-
guished by JOSEPH F. DALY, J.
ib.

ASSESSMENT.

1. Where, by a mistake, the amount
of an assessment is paid to the col-
lector of arrears of assessments in
New York City, and an entry made
on his books to the effect that the
assessment on a certain lot is paid,
this does not discharge the lien of
the assessment nor prevent it (af-
ter the mistake has been rectified
and the money refunded) from be-
ing enforced, even against the
property in the hands of a person
who purchased it upon the faith
of such entry. Curren v. The
Mayor, &c.,

544
2. The only way in which a pur-
chaser of real estate can protect
himself from the liens of assess-
ment is that provided by the act of
1853 (L. 1853, c. 579, § 16), by
which the certificate of the clerk
of arrears, countersigned by the
comptroller, is made conclusive
evidence. Such certificate was in-
tended by the legislature to be,
and is, the only. entry or declara-
tion made by the officers of the
corporation of the city of New
York in relation to such matter
which will operate as an estoppel
upon it.

ASSESSMENT OF DAMAGES.

ib.

1. It seems, that in actions for ma-
licious prosecution, where the
amount of the pecuniary equiva-
lent for the plaintiff's loss of rep-
utation and mental suffering, is
not susceptible of exact proof, the
plaintiff, upon assessment of dam-
ages, his cause of action being
admitted, is not required to give
evidence of damage, but the jury
may give such damages as they
think the injury warrants, includ-
ing punitive damages; but if the
plaintiff sees fit to give evidence

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ASSIGNMENT FOR BENEFIT
OF CREDITORS.

1. A cause of action accruing to an
assignor for services rendered by
him after the date of a general as-
signment for the benefit of credit-
ors, but before the delivery of the
assignment, does not pass to the
assignee. Crow v. Colton,

52
2. A general assignment for the ben-
efit of creditors to three assignees,
who all accept the trust, vests the
estate of the debtor in them joint-
ly, and although one afterwards
notifies his coassignees that he re-
signs the trust and will not act,
and fails to give a bond, the two
remaining assignees cannot act
without him if he is living and has
not been removed by the court,
and a conveyance by them alone
of the debtor's real estate is void
as against the creditors. Brennan
v. Willson,
59

3. It seems, that after all the as-
signees named in the general as-
signment have accepted the trust.
no one of them can by any act of
his own, or of his cotrustees, be
relieved from the duties and
powers with which he has thus be-
come charged and clothed, and
that he can only be relieved by an
order of the court.

ib.

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a warrant of attachment is granted
state facts and circumstances
which have a legal tendency to
make out the essential statutory
facts required to be shown, and
fairly call upon the magistrate to
whom the application for the war-
rant is made to exercise his judg
ment on the sufficiency of the evi-
dence, this is enough to give the
magistrate jurisdiction to issue the
warrant and to sustain it in case
it is attacked on the ground that
the facts stated do not make a
case within the statute. Easton v.
Malavazi,
147
2. The rule is the same whether the
warrant is attacked in a collateral
proceeding as being void for want
of jurisdiction, or whether a direct
application to set it aside is made
in the action in which it was
granted..
ib.
3. Where the essential statutory fact
to be shown was concealment with
intent to avoid service of a sum-
mons. Held, that affidavits alleg-
ing absence of the defendant from
his usual place of business and re-
sort soon after the debt had been
demanded of him, coupled with
his refusal, when asked by plain-
tiff to give his address or residence,
contained enough to fairly call
upon the magistrate for the exer-
cise of his judgment upon the evi-
dence.
ib.
4. A warrant of attachment cannot
be set aside on motion, where the
facts stated in the affidavit on
which the warrant was granted,
have a legal tendency to show that
the statutory ground for the at-
tachment exists, and are such as
fairly called for the exercise of the
judgment of the magistrate who
granted the warrant, as to their
sufficiency. Allen v. Meyer, 229
5. Where the affidavits on which
an attachment had been granted
against the property of the defend-
ant, on the ground that he had
disposed of his property with in-
tent to defraud his creditors,
showed that at a time when the
defendant was largely indebted,
and an execution against his prop-
erty was in force and unsatisfied,
and he was harassed by legal pro-
ceedings, he executed, and caused
to be executed at the same time,
three instruments relating to cer-
tain real estate belonging to him

in another county, viz. — -1. A
deed from himself to one S., a la-
borer employed by him upon the
property, for a consideration as
expressed of $2,000. 2. A deed
from the said S. to his (defend-
ant's) wife, for a like expressed
consideration of $2,000; and 3. A
mortgage upon the property by his
wife to himself as trustee for his
mother-in-law; that after those
instruments had been executed, he
retained them all in his own hands
for about a month, and then caused
them to be all recorded, two days
before the recovery against him of
a judgment for a deficiency in a
foreclosure suit; also, that al-
though these instruments were
drawn up in the office of the de-
fendant, who was an attorney, yet
they were not prepared according
to the ordinary course of business
in his office, but that he attended
to their preparation personally,
and did not deposit them in the
safe where he usually kept such
papers, and that for several months
after he had made the deed to S.,
the defendant continued to act as
owner of the property, and spoke
of it as his own, and gave direc-
tions about its management, and
concerning repairs to and improve-
ments upon it, etc. Held, that
these facts were sufficient to sus-
tain the granting of the attach-
ment within the rule above laid
down.
ib.

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