id. 2. If the conduct of the defendant, in the removal of the child, amounted to a violation of the provisions of the R. Stat. (2 R. S., p. 572) he is liable to be prosecuted for a misdemeanor, but is not liable to a civil action unless special damage is shown. No such action is given by the statute.
3. One R. K. C. held notes of the defendants, including the three notes in suit, which were payable to his order, amounting to nearly $3000, and they being unable to pay their creditors, he made a settlement with them, and accepted from them as a payment in full of all the notes so held by him, the note of a third person for $500, 3. which was paid at maturity. R. K. C. then for a valuable consideration| endorsed the notes in suit without recourse to the plaintiff, who at the time of the endorsement had notice of the settlement with the defendants. Webb v. Goldsmith,
4. Held, that although the note of a third person so received by R. K. C. was for a much less sum than was then owing to him from the defendants, yet its
F. & Co. sold and delivered to D. 100 boxes of raisins at $2 per box at 4 months credit for approved paper, and received in payment a bill of exchange drawn and endorsed by D., and accepted by a house in Philadelphia. D. alleging that the raisins were of inferior quality to the sample by which they had been sold, endeavored to rescind the contract, and gave a written notice to F. & Co. that payment of the acceptance would he resisted. The bill at its maturing
was not presented to the acceptor for 10. Such a proceeding is an action, sub-
payment, and at the expiration of
the term of credit, F. & Co. brought
their action against D. for the price
of the raisins so sold and delivered to
him. Francia v. Del Banco, 133
stantially, for the same cause, with the
additional remedy that, if the debt is
established, the lien will be enforced.
11. In an action against the owner of a
building in the city of New York, to
recover a balance, alleged to be due
from him upon the contract for the
erection of the building, the defendant
cannot set up as a bar to a recovery,
that mechanics and other persons had
taken the necessary preliminary steps
for establishing liens upon the build-
ing, for labor performed, or materials
furnished by them, at the request of
the contractor. Westervelt v. Levy,
12. The defendant, in such a case, should
seek relief, either by instituting a
cross-action, making all the persons
claiming liens parties thereto; or by
a special application for liberty to pay
into court the amount due from him
upon the contract, to abide a final de-
cision upon the claims, and for a stay
of proceedings in the meantime. id.
6. The provisions in the section, by
their reasonable interpretation, apply
to all cases where, from any cause, the
title of the plaintiff has ceased to 13. The mere pending of claims under
exist before the trial.
the lien law, which have not been sa-
tisfied nor even established, can be no
defence to an action for the recovery
of the sum he had expressly covenant-
ed to pay. Judgment for plaintiff af-
firmed with costs.
id
tracted by partners, a surviving part-
ner and the personal representative
of a deceased partner, cannot be united
as defendants. Higgins v. Rockwell,
8. When an order for the resale of 14. In an action to recover a debt con-
mortgaged premises is made in a
foreclosure suit on account of A B,
as the first purchaser, and requiring
him to pay any difference in price,
no action can be maintained on the
order against CD, on the ground
that he was the real purchaser. The 15. The surviving partner is alone liable
order concludes the owners of the fee.
Paine v. Smith,
at law, and it is only when the reme-
dies against him are exhausted that
relief may be had in equity against
the representatives of the deceased
partner.
id
9. In an action on promissory notes,
given for work and labor done, and
materials furnished by the plaintiff, in
building, altering, and repairing cer-16. But as the objection to such a joint
tain buildings belonging to the defend-
ant, it is a good defence, that the
plaintiff, before he commenced the ac-
tion, had commenced proceedings in
the Common Pleas, to enforce his lien
upon the buildings for the same debt. 17. It is not waived, however, by the
Ogden v. Bodle,
611 omission to demur, but as the com-
action appears upon the face of the
complaint, it cannot be taken in an
answer, but must be raised by a de-
id
Held, therefore, that the superintend
ent of the road of the defendants, in
the case before the court, had no au-
thority to bind them by the employ-
ment of a physician or surgeon to at-
tend upon a child, which had been
run over by a car, and severely in-
jured.
id.
The owners of the lots on the north
side of St. Mark's Place, in the city of
New York, agreed by parole that the
houses to be erected thereon should
be set back 8 feet from the line of the
street, so as to have a court-yard of
that depth and of the width of the lot
in front of each house. The agree
ment was carried into effect by the
erection of a row of dwelling-houses
on a line with each other and having
each a court-yard in front. Tallmadge
v. East River Bank,
4. Held, that an injunction restraining
the defendants, who by mesne con-
veyances had become the owners of
one of the lots, from building on the
space so agreed to be left open, was
properly granted.
id.
1. The judge, upon the trial of a cause,
has no right to strike out the only de-
fence made by the answer, and sub-
stitute another, which is distinct and
inconsistent. Fagan v. Davison, 153
2. It rests wholly in the discretion of the
judge who tries the cause, whether he
will permit a pleading to be amended
upon the trial. The general term will
not review his decision upon an ex-
ception. Hunt v. Hudson Riv. Fi. In.
Company,
481
1. Assessments, imposed in proceedings,
taken under the "Act to reduce
several laws relating particularly to
the City of New York into one act,"
passed April 9, 1813, and the acts
amending the, same, to widen and
straighten streets in the City of New
York, upon the owner of a lot, on 1.
account of the benefit to accrue to
such lot, are an actual and first lien
upon the lot, and payment of the
sum assessed may be enforced in the
same manner, as if the lot had been
actually mortgaged for the payment
thereof. Mayor of New York, &c., Ap-|
pellants, v. William Colgate, Respon-
dent.
2. A sale of the lot at auction by the
Corporation to collect the sum assessed,
A justice of the Superior Court, on
the 28th December, 1848, issued an
attachment against the property of
H. & Co., merchants at Vera Cruz, as
non-resident debtors. The application
for the attachment did not state that
the contract, from which the debt
arose, was made within this state, or
that all the applicants were residents
of the state; and it appeared on the
face of the pleadings, that one of the
applicants was, in fact, a resident in
France. Renard v. Hargous,
6. The application for the attachment
stated, that the debt arose upon a 3.
contract, whereby the debtors con-
tracted to sell certain merchandise
delivered to them, and account for,
and pay over the proceeds to the
applicants; but the demand proved
upon the trial, and for which the ver-
dict was given, included a sum of
money advanced by the applicants to 4.
the debtors in the city of New York.
Held, that whether C. was or was not
liable to B. as first endorser, the latter
was clearly liable as endorser to the
plaintiffs, the facts that the note was
transferred to them by C., and that
they knew B. to be an accommoda-
tion endorser, constituting no defence.
The sworn answer of the defendant
B. admitted that he had received
notice of the protest of the note,
but alleged "the want of sufficient
knowledge to form a belief whether
or not he received due notice of said
id.
protest."
Held, that considering the answer as
an affidavit, it was not such an affi-
davit as the statute requires in order
to exclude the certificate of the Notary
from being read in evidence. id
It was proved that a notice in proper
form was served on the right day at
B.'s place of business by placing it
under the door, but the witness did
not state at what hour the service
was made, nor whether the room was
id.
open or closed.
6. Held, that although this proof, if
standing alone, would have been un-
|