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 ac- 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
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-
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,
-as to amendment to perfect ap- peal.
See AMENDMENT, 1, 2.
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," inay 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. 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.
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.,
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. ib.
ASSESSMENT OF DAMAGES. 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
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,
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.
4. It seems, also, that a failure of an assignee to give a bond is suffi- cient cause for his removal by the court.
1. Where the affidavits upon which
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.
ATTORNEY AND CLIENT.
1. Security for payment for services of an attorney in suits in another court will not be required as a con- dition of ordering another attorney to be substituted in his stead in suits in this court. Matter of Davis,
2. Notice to the defendant's attorney of the existence of a lien of the plaintiff's attorney upon such judg- ment as may be recovered in the action, is not notice to the defend- ant, and will consequently not pro- tect the plaintiff's attorney in case a settlement is made by the parties to the action without providing for his lien. Wright v. Wright, 62
-as to when client will not be al- lowed to discontinue proceedings
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