173 13. On appeal from the Marine or Jus-livered, is not an appealable order. Ubgtice's Court. this court can look only at dell v. Root, the return of the justice, and will not review matters resting in the discretion of 22. When a party has proceeded, unthe court below, or questions of practice der an order of reference, with the trial merely, unless they affect the substantial of the cause before the referee, he cannot rights of the parties, and are returned by afterwards appeal from the order. the justice as part of the proceedings in the cause. Mitchell v. Menkle, 142 Ibid. 23. The admission of immaterial evidence at the trial forms no ground for a reversal of the judgment, when it can be seen that no harm resulted from its admission. Moore v. Somerindyke, 199 14. The court has the power to set aside a verdict, and order a new trial on the ground of excessive damages, even in an action for a mere personal tort, as in an action for an assault and battery, 24. Objections stated on the argument where, upon a comparison of the verdict of appeal cases, but not contained in the of the jury with the facts established be-notice of appeal, will not be considered. fore them, it appears that they acted under undue motives, or some gross error or misunderstanding. Blum v. Higgins, 147 17. Where no notice of appeal is attached to the return, on an appeal from a district court, the appeal should be dismissed. Cabre v. Sturges, 160 Ibid 25. After the decision of an appeal, by the court in banc, the unsuccessful party cannot be allowed, for the purpose of an appeal to the Court of Appeals, to insert exceptions not appearing in the ese, upon which the appeal in this court has been argued and decided. Beach v. Raymond, 201 27. In an action for personal injuries, which incapacitated plaintiff from pursuing his business, a witness for plaintiff 18. The court will not consider an ob- was asked what amounts other persons jection presented on appeal, which, if in the same employment usually earned. taken at the trial, might have been obvi-and he named several sums, adding that ated by the respondent. This rule illus- the plaintiff earned the same amounttrated and applied. Hunt v. Hoboken L. held, that the evidence of the earnings of & I. Co., other persons, though improper, could not have done harm, there being positive testimony to the individual earnings of plainIbid. 161 19. The court will not, on a question of fact, disturb the finding of a jury, un-tiff. less clearly against the weight of evidence. Ibid. 28. This court will review the decision of a justice of a district court, denying a 20. A judgment of this court, on ap-jury trial, although no exception to the peal, reversing a judgment of the Marine, decision was taken. Meech v. Brown, 257 or a district court, for the plaintiff, not predicated on the merits of the contro- 29. An original summons in a district versy, is no bar to another action for the court, made returnable at 9 o'clock A. M., same cause. Its effect is merely to remit and having been returned by a constable the parties to their original rights and ob-personally served, a judgment entered ligations. Ibid. thereon by default is regular, and cannot be impeached upon appeal to this court 21. An order to refer a cause, brought by affidavits showing the copy summons, upon an account for goods sold and de-served upon the defendant, to have been made returnable at 10 A. M. If the con- tion that it must have proceeded from stable did not serve a copy of the sum-passion, prejudice, corruption, or palpable mons upon him, he must seek his remedy mistake. Tracy v. Hartman, by an action against the constable for a 350 false return. The return cannot be im- 37. The justice returned that the testipeached or brought in question on an ap-mony of two of the defendant's witnesseS peal from the judgment. Haughey v. was given in a manner to deprive it of Wilson, 259 any weight, and this court refused to disturb the judgment, although, from the tes 30. The mere entry by the justice on timony returned, it probably would come the summons, of an adjournment of the to a different conclusion, as to the facts, cause, upon the defendant's defauit, docs from that arrived at by the justice. Ibid. not render it irregular for him to proceed to try the cause, and render judgment 38. Where a judgment is reversed, upon prior to the adjourned day, the defendant appeal, at the general term of the Marine not having appeared in the mean time. Court, for errors occurring upon the trial Ibid. before a single judge, or for insufficiency of proof, a new trial should be awarded. Irwin v. Lawrence, 31. This court will not, upon appeal, set aside a regular judgment entered on default in a district court, although the defendant excuses his default, and swears to a defence, if the ground of appeal, as specified in the notice, is simply for error in the judgment, not for relief upon the merits. Ibid. 352 39. It is only in cases where the facts involved in the action are ascertained at the trial, either by special verdict, or in some other proper mode, that a final judgment may be given, at the general terin, in favor of the party appearing to be entitled thereto, and adverse to the judg 32. Whether the justice of a district ment appealed from. Ibid court may open a judgment rendered by him on default through mistake—quære? Scranton v. Levy, 40. Leave to appeal to the Court of 261 Appeals, from a judgment of this court, in an action commenced in an inferior 357 33. But if it be opened by consent of court, will only be granted where the case the parties, and the cause tried upon its involves great interests, or settles a prinmerits, and on such trial a similar judg-ciple of law affecting the decision of nument rendered, it will not be deemed ir-merous other cases. Jackson v. Purchase, regular, where it can be seen that the evidence justified the conclusion arrived at by the justice; and the power of the justice to open the default and proceed with the trial will not be inquired into on the appeal therefrom to this court. Ibid. 41. The notice of appeal from a judg ment of a district court must itself specify the grounds of objection to the judgment. A reference to the proceedings on the trial, as the place where the grounds of appeal will be found, is not sufficient. 34. On the hearing of an appeal from a district court, the return of the justice Errors in a complaint, although such cannot be contradicted or impeached by as to be good grounds of objection if taken affidavit. It is conclusive in respect to at the trial, do not justify a reversal of the the statements contained in it. If it is judgment, when they are supplied by the erroneous, it can only be corrected by a evidence, and no harm has been occamotion to the court. Spence v. Beck, 276 sioned by them. The Mayor, &c., of N. Y. v. Green, 393 35. An appeal will be entertained from an order granting judgment on account of 42. On appeal, under § 366 of the Code, the frivolousness of a demurrer, taken be- from a judgment of a district court, taken fore the entry of judgment thereon. Lee by default, the allegation of the defend v. Ainslee, 277 aut, that he is ignorant of law proceedings, is not a sufficient excuse for his non-at36. This court will not interfere, on ap-tendance at the time and place mentioned peal, with the finding of a justice, unless in the summons served upon him. it is such an obvious disregard of the! Nor is his mere general denial of the weight of evidence as to create a convic-allegations in the complaint sufficient evi dence that injustice has been done him. | District Court, the appellant must disIf the defendant wishes to obtain a new tinctly specify in his notice of appeal the trial, in such a case, he must point out errors alleged, whether in the process, the mode in which injustice has been pleadings, proceedings at the trial, or in done. Ibid. giving judgment, that his adversary, the justice, and also this court, may be fully apprised of the matter intended to be the subject of review. Lee v. Schmidt, 537 43. Where a cause, pending in a district court, was adjourned to the 19th, and on the 18th the plaintiff appeared before the justice, and represented to him that the 47. Where the errors are not distinctly cause had been adjourned to that day, pointed out in the notice, or where the and the justice (his own entry of the ad- notice states generally, as a ground of journment being indistinct) allowed the appeal, that the judgment is against law plaintiff to take an inquest, and rendered and evidence, specific objections will not judgment in his favor-held, that the judg- be heard on the argument, but the judgment must be reversed, for error in fact. ment will be summarily affirmed. The affidavits of the parties being in A statement in the notice, that the conflict as to whether the adjournment judgment is against the weight of eviwas made to the 18th or to the 19th-dence, is not sufficient to justify its review held, that the return of the justice must as being contrary to evidence, or against govern upon that question. Kelly v. evidence, each being a distinct ground of Brower, 514 error, and, if relied on, must be stated. Ibid. Ibid. 44. Upon appeal from a judgment rendered by default in a district court, the 48. A judgment will not be reversed justice's return showed that the summons where the cause was tried upon the asand complaint, verified, were returned sumption of the existence of a fact which by a constable of the city, duly served, was not proven, but which was incumand that, the defendant not appearing on bent on the plaintiff to have shown, and the return day, judgment was rendered might have been established if objection for the plaintiff for the amount claimed, had been taken at the trial. Nor will a without further proof. The complaint judgment be reversed for defect of proof, was neither set out in the return nor re- when, if objection had been taken at the ferred to as annexed. Held, insufficient. trial. it could or might have been obvi Where judgment is rendered in a dis- ated. trict court without proof, and on default, upon a constable's return of the personal. 49. In an action to recover damages service of a summons and complaint, the for the unlawful detention and conversion statute must be strictly complied with. of certain personal property, it did not The justice's return, in such a case, should appear by the return that any evidence show that a copy of the complaint was whatever was offered tending to show served, verified by the party pleading, or that the defendant detained or converted his agent or attorney, as the case may be. the property. No objection to this defect A mere return that the summons was of proof appeared to have been taken at served with the complaint is not sufficient. the trial. And the return should either set out the Held-I. That the defendant would not complaint served, or, if it is annexed be permitted to present such an objection thereto, should refer to it as the com- upon the appeal: plaint upon which judgment was ren- II. That, as the notice of appeal only dered. Spring v. Baker, 526 alleged, as ground for reversal, that the judgment was "contrary to the clear and decided weight of evidence," he must be confined to the objection stated. Ibid. 45. No appeal lies from an order at special term refusing leave to amend, unless a certificate of the judge making the order is obtained, pursuant to the rule of this court, adopted 22d March, 1851. Applications for leave to amend are in all cases addressed to the favor of the court. Hatfield v. Secor, 50. Upon appeal from a district court, the appellant is limited to the grounds of appeal stated in his notice. Where nono are stated the judgment will be affirmed. 535 Davis v. The N. Y. & Erie R. R. Co. 543 46. Upon appeal from the Marine or! 51. Formal and preliminary objections, Ibid not involving the merits of a motion, will mission and bond must be taken together, not be considered upon appeal, unless it and that an award signed by two of the affirmatively appears that they were taken three arbitrators was valid. and overruled, when the motion was brought on for a hearing. Thompson, Merritt v. 3. The parties, to a controversy submitted to arbitration, their witnesses, and the arbitrators chosen, were all of the 52. In an action brougnt against the Jewish persuasion. The meeting of the firm of the name of I. K. & Brothers, M. arbitrators for the trial of the cause was K. was, by mistake, named as defendant held on Sunday, and the award was on instead of H. K. Although no summons that day drawn up and signed; but it was or complaint was ever served upon him, dated the next day, and was not until he appeared and answered, denying that then delivered to the parties. Held, that he was a partner in the firm. The plain- the award was valid. Ibid tiffs then moved for leave to discontinue against him without costs, and to substitute the name of H. K. for that of M. K., wherever it occurred in the summons and complaint. On appeal from the order 1. I. loaned to G. $1,000, taking, to granting the application-held, secure the repayment thereof, his note I. That the order rested in the discre- therefor, and eleven receipts, signed by tion of the court, and was not appealable. G.'s wife, for eleven consecutive monthly II. That the circumstances of the case payments of £15 each, payable to her by fully arranted the order as granted. J. G. K. & Sons, in monthly installments, Waterbury Manuf 'g Co. v. Krause, 560 out of moneys constituting a part of her ARREST. separate estate. Before the first of these payments became due, G. forbade J. G. K. & Sons to pay the amounts to I., and thereafter drew them out, as they became due, himself. Held, that in an action by I., to recover the $1,000 from G., the latter could not be arrested. I. He had not removed or disposed of his property with intent to defraud his creditors. The moneys thus drawn out by him were not his property. His creditors had no claim thereon, nor could they be applied to the payment of his debts. They were the separate property of his wife, and the fact that the defendant drew them from the banker authorized to pay them on her receipt, could not, in any aspect, be regarded as a fraudulent removal or disposition of his property. 1. The president and two of the trustees of a corporation signed an agreement submitting a controversy, in which the corporation was interested, to arbitration; and all the trustees attended before the II. Nor did the defendant's withdrawal arbitrators, and took part in the trial of of the money, intended as a security for the controversy as witnesses, &c. Held, the repayment of the loan, show that the a sufficient submission to bind the corpo- debt was fraudulently contracted. The ration by the award. receipts given by the wife, she had the The assent of a corporation to a sub-power to countermand. The husband had mission may be inferred from circum- no authority to bind the wife by his agreestances. Isaacs v. The Beth Hamedash|ment, and the plaintiff could not allege Society, 469 that he had been defrauded by relying upon such an agreement. Isaacs v. Gor 479 2. Where the submission of a contro-ham, versy to arbitration provided that the decision of "a majority" of the arbitrators 2. It seems that any person may arrest should be binding, and the bond provided another who has committed a felony, and that the award should be subscribed "by a justice of the peace, or constable, may the said arbitrators "-held, that the sub-also, virtute officii, arrest for any offence less than a felony, if committed in his an assignment for the benefit of creditors, presence. Willis v. Warren, 590 and was void because it appropriated only a specified property, and not the whole of the debtor's estate. ASSAULT AND BATTERY. See APPEAL, 14, 15, 16. LANDLORD AND TENANT, 4, 5. ASSIGNMENT. II. That the balance in the hands of S. W., after the payments of the claim of G. and some others, was to be regarded as money had and received to the use of A. W.'s creditors, and could be recovered by them from him. III. But that no action could be maintained therefor by a receiver of the prop 1. Assignees in trust for the benefit of erty of A W., appointed on the applicacreditors cannot assign a claim due to tion of one of his judgment-creditors. them, as trustees, to a third person to col- Neither A. W., nor any one claiming unlect the claim, and appropriate the pro- der him, had any right of action against ceeds in accordance with the provisions S. W. therefor. (a) Smith v. Woodruff, of the original assignment. The assignment devolves a personal trust upon the assignees which they cannot thus delegate to others. Small v. Ludlow, 462 5. Where a lease of land is made upon 189 any condition-such as the payment of rent-the condition is annexed to the 2. Nor does it help such an assignment land, and goes with it, and the assignee that the cestui que trusts, under the origi- of the lessee, if he accepts the assment, nal assignment, who will, probably, ab- takes the estate subject to the condition, sorb the entire proceeds, have joined in and is liable for the payment of the rent the assignment of the claim, and assented as long as he continues assignee. thereto, unless all the creditors of the It seems this liability is at an end when original debtor have joined therein. When he assigns to another, even though he asa debtor assigns property for the benefit signs to an irresponsible person for the of his creditors, they are all interested in express purpose of avoiding future liathe estate thus appropriated, and no diver- bility. Journeay v. Brackley, sion can be made of the trusts thus created, nor any delegation of any power 6. But there is a distinction between conferred, without their assent, or the an express or specific assignment, by a sanction of some tribunal possessing the lessee, of his interest in a lease, and an power to allow such diversion or transfer. assignment made by him of all his propIbid. erty for the benefit of creditors. In the former case, the assignee, by accepting 3. A written instrument, for the pay- the lease, creates a privity of estate be ment of money upon a contingency, may tweer. himself and the lessor, and having be transferred by delivery merely, al-established that relation, it is immaterial though drawn payable "to order." Such an instrument is not negotiable, and no indorsement is requisite to transfer the title. A delivery, with intent to vest in the party claiming under it all the payee's interest in it, is sufficient. Lof tus v. Clark, 447 whether he enters upon and enjoys the land or not. But in the case of a general assignment for the benefit of creditors, although the assignees accept the assignment, and enter upon the execution of the trust, whether they will become as310 signees of a lease, held by the insolvent at the time of the assignment, is altogether at their election. 4. A. W., being insolvent, assigned a stock of goods to G., one of his creditors, Such an election must be signified by for $1,000, upon condition that G. would some unequivocal act. Either the lease deduct his claim therefrom, and pay the must be specifically mentioned in the asbalance to the other creditors. G. sold signment, or the assignees, after accepting the property to S. W. upon the same the trust, must have acted in such a way, terms-the latter, however, agreeing to pay the balance to the creditors of A. W. only in case they would accept it in full, and discharge A. W. Held I. That this sale was to be regarded as in respect to the leasehold premises, as to show that they have elected to take the interest which the insolvent before had (a) See, contra, Porter v. Williams, 4 Seld. 142 |