-when municipal corporation li-
able for negligence in remov-
ing snow and ice from street.
See MUNICIPAL CORPORATION,
1, 2.

NEW TRIAL.

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,

74

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
should be liberal and satisfactory,
and the comptroller never after-
wards having fixed the amount.
Held, that the plaintiff was en-

it

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.

6. It seems, that the Board of Com-
missioners of the Sinking Fund of
the city of New York have no
power to have made, at the ex-
pense of the city of New York, an
appraisal of county property, or of
property the management of which
is not within the scope of, or has
no relation to, the powers and du-
ties of that board.

ib.

7. Since, by the charter of the city
of New York (L. 1873, chs. 335 and
755), the police department is made
a distinct and separate branch of
the municipal government, and
has complete control over the
funds annually appropriated for
its support and maintenance.
Held, that the plaintiff, who had
been employed by such depart-
ment, could not-at least in the
absence of proof that the appro-
priations were insufficient to meet
its necessary expenses -
-recover
from the corporation of the city of
New York for services rendered
upon such employment.
man v. The Mayor,

Water-
489

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

will not conform the pleadings to
the proof, but will reverse the
judgment. In such a case, this
court on appeal is bound to reverse
the judgment. Howe Sewing Ma-
chine Co. v. Haupt,
108

8. It seems, that in an action against
an accommodation indorser of a
note before delivery to the payee,
an allegation in the complaint that
the endorsement was made for the
purpose of obtaining credit, for
the maker with the payee is a suf-
ficient allegation of the intention
on the part of the indorser to be-
come a surety for the maker of the
note. Schwarzansky v. Averill,

254

9. In an action in the Marine Court
on the official bond of a marshal,
brought in the name of the party
aggrieved, an allegation in the
complaint that on a certain day
leave was granted by the Court of
Common Pleas to so bring such ac-
tion, is sufficient upon demurrer.
It is presumed that the leave was
granted in a proper case. Hauger
v. Bernstein,
340

10. The objection that the complaint
in an action for the malicious pros-
ecution, does not allege want of
"probable cause," " but only of
"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,
386

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.
Carter

POLICEMAN,

Banks v.
417

-power to arrest without war-
rant.

See CONSTABLE.

PRACTISE.

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 affirin-
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,

he is bound, although the former
undertaking, by reason of having
failed of approval, has become
void. Gottwald v. Tuttle, 105

6. Judgment as for want of an an-
swer cannot be given at trial, for
the reason that the defendant there
testifies that he did not verify his
answer to the verified complaint.
An objection at the trial that a
pleading is unverified is too late. ib.

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