-when municipal corporation li- able for negligence in remov- ing snow and ice from street. See MUNICIPAL CORPORATION, 1, 2.
1. Where in an assessment of dam- ages, in an action for malicious prosecution, the jury were erro- neously instructed that an allega- tion of the complaint, as to the amount expended by the plaintiff, for costs and counsel fees, in de- fending the prosecution, stood ad- mitted by the defendants, the court. on appeal, refused to allow the assessment to stand, upon the plaintiff's consenting to reduce the damages assessed by that amount, and ordered a reassessment, on the ground that the jury might have regarded the necessity of such ex- penditure, on the part of the plain- tiff, as matter of aggravation, and on that account, given a greater sum, as general damage, than they otherwise would have done. Thompson v. Lumley,
2. Where on the trial the defendant had been the only witness as to the terms of a verbal agreement that the defendant alleged had been made between himself and the plaintiff, and the jury having found against him on the issue as to whether such an agreement had ever been made; on a motion for a new trial, on the ground of new- ly-discovered evidence, the defen- dant produced the affidavit of a person who swore to having heard such an agreement discussed be- tween the plaintiff and defendant, and the plaintiff express a willing- ness to make it, and the defendant also swore that he had forgotten that the witness was present at any such conversation (which was eleven years before the trial), and that he was only reminded of it by the witness informing him of it after the trial. Held, 1. That al- though the defendant had testified generally to the making of the agreement, yet, as no testimony had been offered as to this partic- ular interview, the testimony was not cumulative. 2. That the de- fendant's excuse for not having
4. The Board of Commissioners of the Sinking Fund of the city of New York having passed a resolu- tion employing the plaintiff to make an appraisal of property be- longing to the city and county of New York, and by the same reso lution having required the comp- troller of the city of New York to make satisfactory arrangements with him as to his fees, and the plaintiff having arranged with the comptroller to leave the amount of his compensation to him upon the comptroller's promise that it should be liberal and satisfactory, and the comptroller never after- wards having fixed the amount. Held, that the plaintiff was en-
titled only to such sum as the jury should find was a reasonable com- pensation for the services per- formed by the plaintiff. Bleecker v. The Mayor 439
5. Held, further, that after the ser- vices had been performed, a reso- lution of the board fixing the plain- tiff's compensation at a certain sum did not, in the absence of the plaintiff's having acted upon the resolution by consenting to accept in payment for his services the sum so fixed, form a contract be- tween the plaintiff and the board, and that the board having after- wards rescinded the resolution, it gave the plaintiff no right to re- cover that amount in an action against the city of New York. ib.
2. Where an application was made to an insurance company, through a broker, for insurance, on account of a firm of merchants, on a ship, the loss, if any, payable to the firm and the company, upon the receipt of the firm's note signed in the name of the firm by one of the partners, issued a policy upon the ship as the property of the firm,— Held, that the company were not put upon inquiry as to whether or not the firm owned the ship, or whether or not the insurance was a firm transaction, and that the note bound all the partners, whe- ther part owners of the ship or not. ib.
3. It seems, that the rule as to the liability of a partner on a firm note, given without his consent or knowledge, in a transaction not connected with the business of the firm, by another partner, is, that if the party taking the note is noti- fied by the nature of the transac- tion that it is not connected with
7. A complaint in a justice's court which simply shows that the action is "for the recovery of personal property valued at eighty-five dol- lars" does not allege such a wrong- ful taking or detention of prop- erty as will sustain an action of replevin, and does not show any cause of action at all; and when in the justice's court this defect is pointed out, and the plaintiff hav- ing been given leave to amend, does not cure the defect, and against the objections of the de- fendant the justice allows the plaintiff to introduce evidence un- der such a complaint, instead of dismissing it, this court on appeal
"just" or proper" cause, al-
though it would, it seems, be good upon demurrer or a motion at trial to dismiss the complaint for in- sufficiency, is not available when raised for the first time upon ap- peal from an order vacating a dis- missal of the complaint and grant- ing a new trial. Van De Wiele v. Callanan,
11. Where a corporation organized by or under any statute of this State, in a suit by it desires to take advantage of the statutory provi- sions (2 R. S. 458, § 3, as amended by L. 1864, c. 422, and L. 1875, c. 508) relieving such corporations under certain circumstances from proving on the trial of suits by or against them, the existence of such corporation, it must allege in its complaint its incorporation by or under a statute of this State, and if it does not do so it must, on a general denial being inter- posed, prove its incorporation on
14. Under a complaint for damages resulting to plaintiff from defend- ant's leaving cumbersome prop- erty on demised premises after ex- piration of the term, alleging that plaintiff did not receive possession until after the 2d of June, and was deprived of the benefit and enjoy- ment of the premises until the 18th of June, an answer counter- claiming damages for a wrongful entry on or about the 2d day of June, and a reply denying gener- ally the allegations of the answer constituting the counter-claim, the plaintiff may give evidence of a peaceable entry with the defend- ant's consent on the 9th of June, and such evidence is not inconsis- tent with the plaintiff's pleadings, and a submission of the question of fact as to such peaceable entry and consent to the jury is proper under the issues raised. Banks v. Carter 417
-power to arrest without war- rant.
1. Where the court of Oyer and Terminer at the time of making an order forfeiting a recognizance grants a certiorari, the writ stays all proceedings on the forfeited
2. The notice of entry of judgment of affirmance, required by sec. 348 of the (old) Code of Civil Pro- cedure to be served upon the ad- verse party ten days before bring- ing suit upon an undertaking upon appeal, must be a written notice that there has been an entry of a perfected judgment. The statute must be strictly complied with, and the service of a paper purporting to be a copy of an order of affirm- ance, without any notice that it has been signed or entered, is in- sufficient, and an action upon the undertaking cannot be sustained upon proof of service of such an order ten days before suit. Rae v. Harteau, 95
3. Failure of proof of such notice cannot be supplied by showing that the defendant in the original suit, without waiting for notice of entry of the judgment, moved un- der L. 1871, c. 282, § 8, for a cer- tificate to enable him to go to the Court of Appeals, nor by showing that the sureties, when demand of payment was made on them, did not base their refusal to pay on the failure to serve such notice. ib.
4. The fact that sureties on an un- dertaking on appeal have been in- demnified, does not estop them in a suit on the undertaking from in- sisting on proof of performance of all the conditions required by the statute precedent to a suit on it. ib.
5. Under § 340 of the Code of Pro- cedure (old Code), which provides that the undertaking to stay exe- cution pending appeal may be in one instrument or several, where an undertaking by two sureties fails of approval because one of the sureties is insufficient, if, after- wards, a separate undertaking is executed by another surety alone,
7. The court in its discretion will refuse to allow a judgment in an equitable action affecting partner- ship assets in which creditors are interested, to be entered by con- sent of plaintiff and one of the defendants, his copartner, where another defendant, the assignee for the benefit of creditors of plaintiff's interest in the firm, does not appear to have had notice of the action, or to have appeared, and where the form of judgment consented to, names a receiver and referee, would affect creditors not before the court, and would give the plaintiff's attorney a prior lien upon the assets for costs and for counsel fees to an unknown amount. Plonsky v. Japha, 226
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