June 27, 1890 July 8, 1890.
Curiam. Judgment affirmed, with costs, on the authority of 53 N. Y. Superior Ct. R. 151.
GEORGE W. WHITE v. MARY REED, as Executrix, etc., et al.
Decided June 27, 1890. Motion to re-settle order dated first Monday of December, 1887. Before Freedman and Ingraham, JJ. Per Curiam.-Order re-settled.
NEW YORK LIFE INSURANCE COMPANY, Plaintiff v. JAMES AITKIN, as Executor, etc., Defendant.
Decided June 30, 1890. The case was tried before the court and a jury. A verdict was ordered for the defendant and the trial judge ordered the exceptions to be heard in the first instance at the general term. Henry G. Atwater, for plaintiff. Johnston & Johnston, for defendant. Before Truax and Dugro, JJ. Per Curiam. The plaintiff's exceptions are overruled and judgment is ordered for the defendant, with
JOHN TOWNSHEND, Plaintiff v. CATHARINE J. MCGUIRE, et al., defendants.
JOHN TOWNSHEND, Plaintiff v. EDWARD V. LOEW, et al. Defendants.
Decided July 8, 1890. In both these cases exceptions were ordered to be heard in the first instance at the general term upon trials before the court and a jury, verdicts being ordered for defendants. John Townshend, for plaintiff. John C. Shaw, for defendants. Before Truax and Ingraham, JJ. Per Curiam. -The exceptions were overruled and judgment ordered for defendants on the verdicts, with costs, on the authority of Townshend v. Frommer, 57 Superior Court R. 90.
CLAYTON PLATT, Appellant v. THE PENNSYLVANIA RAILROAD CO., Respondent.
Decided November 3, 1890. Appeal from a judg ment dismissing the complaint on the report of a referee. Nathaniel A. Prentiss, for appellant. Robinson, Scribner & Bright, for respondent. Before Freedman and Truax, JJ. The only question involved was one of fact, and the judgment was affirmed, with costs, on the opinion of the referee.
JOSEPHINE STAMPFER, Respondent v. SIEGMUND, alias WILLIAM STAMPFER, Appellant.
Decided November 3, 1890. Appeal from an order granting plaintiff an allowance for counsel fee. Louis Ansbacher, for appellant. Samuel D. Sewards, for respondent. Before Freedman, Truax and Ingraham. JJ. Per Curiam.-The order was reversed and motion denied, without costs, on the authority of Beadelston v. Beadelston, 103 N. Y. 402.
EMILIE RABERG NOEL, Respondent v. H. BENCKE LITHOGRAPHIC COMPANY, et al., Appellants.
Decided November 3, 1890. Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, and also from a judgment dismissing counter-claims set up bythe Lithograph Company, on the merits. Hatch & Warren, for appellants. DeLancy Nicoll, for respondent. Before Freedman and Ingraham, JJ. The Court held (Ingraham, J., writing, Freedman, J., concurring) that the judgments should be affirmed, with costs.
ELIZA W. WHITE, et al., Respondents v. EDWARD M. BENJAMIN, Appellant.
Decided November 3, 1890. Appeal from an order directing defendant to furnish a bill of particulars. Whitlock & Simonds, for respondents. Smith & Dougherty, for appellant. Before Freedman and Ingraham, JJ. Order affirmed with $10 costs.
Where the reference in the action is
to state accounts and for a general
accounting in regard to partner-
ship assets and liabilities, and the
amounts due and owing between
them, etc., the referee is author-
ized and empowered to order judg-
ment in favor of a party or parties
found on such accounting to be
entitled to judgment, although by
the pleadings in the action said
party or parties have not de-
manded affirmative relief and a
judgment. White v. Reed, 333.
Plaintiff bought certain property
from one Duntze. At the time
Duntze owed one Wagner, and
the firm of Austin, Nichols & Co.,
the substitute defendants herein.
Plaintiff knew of the indebted-
ness to Wagner, but was ignorant
of the fact that Duntze owed
Austin, Nichols & Co., and to
protect himself against the claim
of Wagner procured the signa-
ture of Wagner to the bill of sale
with Duntze. This bill of sale
contained a statement that the
property was free from all claims,
etc. Afterwards Duntze confessed
judgment to Austin, Nichols &
Co., and execution issued there-
on, and the sheriff levied on the
property sold by Duntze to plaint-
iff, who paid the sheriff under pro-
test $479.02. Afterwards plaint-
iff obtained from Wagner the sum
of $475.00, and gave a document
in which he acknowledged the re-
ceipt of the said sum and stated
that it was in full for all claims
and demand against the said Wag-
ner. It appeared that plaintiff
ner except that growing out of
the sale of the property by Duntze
and Wagner to him, but plaintiff
sought to establish on the trial
that he borrowed this $475 from
Wagner. Held, The case pre-
Plaint-
sents this state of facts:
iff makes a claim for the same
cause of action against two parties.
One of these parties pays the claim
and afterwards plaintiff brings an
action against the other party.
We are of the opinion he cannot
maintain such an action. The
payment by Wagner acted as an
equitable assignment by the plain-
tiff of any cause of action he had
against the sheriff for seizing and
injuring his property, and it was
error for the trial judge to charge
the jury as stated in the case.
the $475 was a loan by Wagner,
as claimed by plaintiff, it would
not act as an equitable assign-
ment, but that question of loan or
equitable assignment should have
been submitted to the jury. The
charge to the jury was, in effect,
a direction to find for plaintiff on
that point, and the defendants
having excepted, it was not neces-
sary for the defendants to go to
the jury on that point. Peyser
v. McCarthy, 325.
Affidavit.-Sufficiency of allegation
on information and belief, that
goods belong to third party in an
application to re-bond made in
an action for claim and delivery.
See Lange v. Lewi, 265.
had no other claim against Wag- 1. Plaintiff's assignor, John F.
Schipper, made a draft on his
brother Gerhard Schipper of Bre-
men, Germany, for 1,500 Reichs-
marks, equal to $360, payable to
the order of the defendant at five
days' sight, and gave the draft to
defendant to collect for him. De-
fendant undertook to collect the
same and to pay to the said John F.
Schipper the amount of the same
as soon as he was advised by cable
from the bankers in Germany, to
whom the draft was to be sent,
that it was paid. The draft was
sent, presented and paid, and de-
fendant advised of payment by
cable, and afterwards received the
money, yet defendant refused to
pay the proceeds of said draft to
John F. Schipper when the latter
demanded the same. The grounds
of his refusal, as claimed by him,
appear in the opinion of the court,
which were held to be no defence
to this action, under the circum-
stances. That the case, as pre-
sented, is governed by the princi-
ples that usually apply between
principal and agent. The agent
collected the money of his princi-
pal without incurring any respon-
sibility except to pay it over to his
principal according to the terms
of his employment, and having
refused so to do he is liable. It
was therefore error to direct a
verdict for defendant. Prisco v.
Hug, 140.
2. The work done by the plaint-
iff's assignor, constituting the first
cause of action, was accepted and
received by the commissioner of
public works, on behalf of defend-
ant. The excavation of earth and
rock called for in the contract was
completed in due time, and all the
work, so far as required by any of
the officers of the defendant, was
performed and accepted by the
defendant, and a certificate of
completion and acceptance was
signed by the surveyor, superin-
tendent of street improvements,
chief engineer of the Croton aque-
duct, and the commissioner of
public works, as required by the
terms of the contract. The de-
fense claimed that a certain por-
tion of the rock was not, in fact,
taken out two feet below the curb
of the street, but the testimony
produced to support that defense
was indefinite and uncertain, and
of no avail as against the evidence
in behalf of the plaintiff that the
rock was taken out, and to the
satisfaction of the defendant's
officers. Held, that the various
officers named in the contract,
who signed the certificate of com-
pletion and acceptance, must be
regarded as the representatives of
the defendant, and their action
and certificate as binding upon the
city; and the trial judge was justi-
fied in directing a verdict for the
plaintiff. Brady v. The Mayor,
184.
1. Alimony is not granted as matter
of course in actions by the wife
against the husband for divorce a
vinculo matrimonii, nor are coun-
sel fees. Moriarty v. Moriarty,
2. The wife, in order to obtain either
alimony or counsel fees, must
present a case to the court show-
ing that she has a fair prospect of
success in the action. Ib.
3. Where the charges of adultery are
made on information and belief,
and the husband positively denies
them, she does not present such a
case. Ib.
4. An order committing a person
for contempt in not paying ali-
mony and counsel fee, in a divorce
case, must contain an adjudication
that the party sought to be com-
mitted has refused to pay, and
that such refusal was calculated
to, or did actually defeat, impair
or prejudice the rights of the party
in whose favor such alimony and
counsel fee had been ordered; and
in such order it must also appear
that payment of the same cannot
be enforced by execution, seques-
tration or resorting to the security
of the party who is the subject of
the order. These conditions not
being incorporated and appearing
in the order appealed from, the
order is reversed. Whitney v.
Whitney, 335.
1. Plaintiffs moved for a new trial
on the exceptions taken by them,
for insufficiency of damages and
because the verdict was contrary
to the evidence and contrary to
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