costs, and setting the cause down for trial] In such a case, on reversing a judg
for a day certain, the defendant not ap- ment in favor of the plaintiff, a new trial
pearing on that day, and not having paid should be awarded. Journeay v. Brack-
the costs, on an affidavit of that fact, the ley,
court vacated the original order opening
the judgment. Held-regular. Mitchell
v. Menkle,
2. On appeal from the Marine Court,
this court can look only at the return of
the justice, and will not review matters
resting in the discretion of the court be-
low, or questions of practice merely, un-
less they affect the substantial rights of
the parties, and are returned by the jus-
tice as part of the proceedings in the
JUSTICES' COURT PRACTICE.
USE AND OCCUPATION, 3.
1. The wife having, subsequent to her
marriage, permitted her sole and separato
property to be transferred to the custody
of her husband, and used in a business
carried on by the two, whether she will
3. The decisions of the Marine Court, not be held to have appropriated it to the
upon questions respecting its practice, use of her husband, and rendered it liable
and not affecting the merits of an action, to the claims of his creditors-quare?
are not the subject of review in this court. Sherman v. Elder,
Brown v. Jones,
2. The sheriff having, in such a case,
4. The general term of the Marine levied on a stock of goods purchased with
Court has no power, on appeal from a the income of such a business, and the
judgment, to make an absolute order wife having interposed only a general
that it be modified by increasing the
Where, however, a judgment appealed
from is palpably too small in amount, an
order may be made directing that there be
a new trial, unless the defendant consents
to a specified increase. Murphy v. Long,
claim to the entire stock, whether she will
not be afterwards estopped from claiming
a few specific articles, upon the ground
that they were hers at the time of her
marriage, no such claim having been
made at the time of the levy-quære?
5. Where a judgment is reversed, upon
3. Whether a wife can, without the
appeal, at the general term of the Marine concurrence of her husband, assign a
Court, for errors occurring upon the trial claim for damages for tort-quære? Ibid.
before a single judge, or for insufficiency
of proof, a new trial should be awarded.
Irwin v. Lawrence,
6. 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
term, in favor of the party appearing to
be entitled thereto, and adverse to the
judgment appealed from.
Ibid.
7. The Marine Court, at general term,
should not reverse a judgment appealed
from, and order final judgment in favor
of the appellant, where it appears, or may
reasonably be presumed from the case
presented, or the nature of the contro-
versy, that upon a new trial additional
facts might be established sufficient to
charge the appellant with liability in the
See ARREST, 1.
COUNTER-CLAIM, 4.
HUSBAND AND WIFE, 1, 2, 3.
PROMISSORY NOTES, 8, 9, 10.
1. In an action by the assignee of B. &
F. against G., the latter interposed, as a
set-off or counter-claim, a claim held by
him against the assignors B. & F. Upon
the trial it appeared that he had recovered through negligence, the burden of proof
judgment therefor prior to this action. is on the defendant to show that the
Held, that the justice erred in admitting plaintiff was h mself guilty of such neg-
evidence of the original claim on which lect as would prevent his recovery, by
such judgment had been recovered. The reason of his contributing to the injury
claim was merged in the judgment, and complained of. De Benedetti v. Mauchin,
could not be used as evidence of indebt-
edness. Ives v. Goddard,
2. In an action brought against a mas-
ter and servant, to recover for injuries
METROPOLITAN POLICE COMMIS- caused by the negligent act of the servant
while engaged in the master's business-
1. The Board of Metropolitan Police held, that a refusal of the justice to charge
Commissioners are not state officers, with- that the plaintiff must show that the acci-
in the meaning of chap. 488 of Laws of dent was occasioned by the negligence of
1851, p. 920. They are officers of a lo-the servant, was erroneous.
cality or district, and, in a proper case,
may be restrained by this court, in the
exercise of its equity powers, in like man- what is usual, is not sufficient to exempt
3. The fact, that the carrier has done
ner and to the like extent as other local him from a charge of negligence. He must
or county officers.
The duty of enforcing show that he has done what was neces-
all the public ordinances of the city of
New York, especially those applicable to say to be done under all the circum-
police health, is imposed by law upon
stances. Wing v. N. Y. & Erie R. R. Co.,
the Board of Metropolitan Police Com-
missioners. The N. Y. & Harlem R. R.
Co. v. The Mayor, &c., of N. Y.,
4. A man cannot recover damages for
injuries occasioned to his property by the
negligence of another, when he has him-
self been guilty of an act of negligence
that contributed to the accident. Ment-
425
See SUPPLEMENTARY PROCEEDINGS, 3. ges v. N. Y. & Harlem R. R. Co.,
5. The horse of the plaintiff escaped
from his stable at night, and fell into a
cut in the public highway, through which
the railroad track of the defendants passed.
Held, that it was the duty of the plain-
1. A mortgagee, holding a chattel mort-tiff so to secure his horse that he could not
gage, which provides that the mortgaged stray into the public streets, and that, if
property shall remain in the custody of he escaped and any accident occurred to
the mortgagor until default is made in the him in consequence thereof, the plaintiff
payment of the mortgage, cannot take must suffer the consequences.
possession of the property before such de- Whether the defendants would other-
fault, without showing some disposition wise have been rendered liable, by reason
of the property, by the mortgagor, calcu- of their failure to put a fence along the
lated to destroy the security afforded him line of the cut through which their road
by the mortgage. Van Hassell v. Borden, passes-quære?
Ibid.
See APPEAL, 11.
CHATTELS, 1.
EXECUTION, 1.
6. The owner of a machine, made by
him to be hired out to others for a par-
ticular purpose, is under an obligation to
make such machine sufficiently strong to
answer the purpose intended. If an in-
jury occurs through a defect in it, the
owner is liable.
Wherever the law imposes a duty on a
man, a neglect of that duty renders him
liable to any one injured by such ne-
1. In an action for injuries occurring iglect.
The authorities upon this point collated
and examined.
subject. The section prohibiting alder-
men from acting as judges of the Courts of
Oyer and Terminer and Sessions, is proper
and consistent with the other provisions
of the act, and a necessary part of the new
system thereby created.
And he is equally liable, whether the
injury is occasioned by a neglect or disre-
gard of some special obligation or duty
due to the injured party, or by a neglect
or disregard of a public duty or obliga-
tion. Cook v. N. Y. Floating Dry Duck ment for bribery offered to or committed
436 by an officer of the city, is not a subject
Co.,
separate from, or unconnected with, the
III. The section, providing a punish
7. L. employed S. and L. to repair a other provisions of the charter, within the
ship, and hired the defendants' dry dock meaning of the constitution.
IV. If there were any doubt upon these
for the purpose of making the repairs. S.
and L. erected a scaffolding upon stand-points, it would not be necessary to de-
ards attached to the dock, and belonging clare the whole act void. So much as is
to the defendants, and which, by the rules consistent with the title would be sus-
of the defendants, they were required to tained, and the remainder only invalid-
use for that purpose. Owing to the in- ated.
sufficiency of the standards the scaffold-
ing gave way, and C., who was employed stitutionality of the charter, that, by the
upon it by S. and L., in making repairs,
fell upon the dock, and was injured.
Held, that the defendants were liable to
him in an action for damages therefor, al-
though there was no privity of contracti
between him and them.
See ACTION, 3.
DAMAGES, 6.
V. Nor is it any objection to the con-
44th section, it takes away the compen-
sation of an officer during his term of
office. There is no doubt of the power of
the legislature to do this.
The 54th section of the clia, pro-
viding that no right accrued before tho
act took effect should be prejudiced
thereby, does not apply to prospective
compensation of public officers, not then
earned. Phillips v. Mayor, &c., of N. Y.,
483
2. This court has jurisdiction of all ac-
1. The provision of the amended char- tions against the corporation of the city of
ter of the city of New York, passed April New York, upon any cause of action
14th, 1857, that "no member of the com- whatever, whether it be of a legal or
mon council shall receive any compensa- equitable nature. So held in an action to
tion for his services as such member," restrain the enforcement of an ordinance
applies to the members elected before the of the corporation, upou the ground that
passage of that act, and deprives them of it was passed in violation of an agreement
compensation for all services rendered entered into by the corporation with par-
The act is not ties affected by the ordinance; and also
that it was illegal and unauthorized by
562
law. N. Y. & Harlem R. R. Co. v. The
Mayor, &c., of N. Y.,
after the act took effect
unconstitutional.
J. It is neither a private nor a local bill,
and does not come within the provision of
the constitution, that no such bill shall
3. The Board of Metropolitan Police
embrace more than one subject, and which
Art. 3, Commissioners are not state officers, with-
shall be expressed in the title.
$16.
A statute cannot be termed local in the meaning of Chap. 488 of Laws of
They are officers of a lo-
or private which provides for the govern- 1851, p. 920.
ment of a cousiderable portion of the ter- cality or district, and, in a proper case,
ritory and population of the state, dele- may bo restrained by this court, in the
gating powers of legislation, and author- exercise of its equity powers, in like man-
izing the passage of laws, as well as the ner and to the like extent as other local
administration of them, which, in their or county officers.
operation, affect all the citizens of the
state, who, either in their persons, come
within the range, or whose property is
within the limits, of that jurisdiction.
II. Nor can the provisions of the amend-
ed charter be said to be of more than one
4. The only limitation upon the legis
lative power and control of the corpora-
tion of New York city over the streets
within its limits is, that they shall be ap-
propriated to no use or purpose which is
not alike free and common to all travel-city comptroller, and thereupon the com-
lers. This power cannot be surrendered, pany laid their track on the Fourth ave-
either in whole or in part, into the hands nue and other streets. In December, 1854,
of any person or persons, without previous the mayor, &c., of New York prohibited
legislative sanction. It seems that con- the running of steam engines, or locomo-
verting the streets to railroad purposes, tives, on the track of the company on
and permitting rail tracks to be laid upon Fourth avenue south of Forty-second
them, and used by an association or indi-street after eighteen months from that time.
viduals for carrying merchandise or pas- Held.-I. That the ordinance was valid,
sengers for hire, is devoting them to an and was not a violation of any of the
exclusive use, and cannot be permitted franchises granted to the railroad com-
without the express authority of the leg-pany. II. That granting permission to
islature.
Ibid. lay the track did not deprive the mayor,
jae, from subsequently regulating its use
5. Although the power to grant this by the company. III. That the agree
permission must be derived from the leg- ment of the company was valid as a re-
islature, yet the corporation, by exercis- striction upon its corporate power, and
ing it, is not deprived of its control over was in no sense a transfer of it. IV. That
the streets in all other respects; and it the corporation can make no valid con-
may, in the grant, impose such conditions tract which will interfere with its legisla
respecting the manuer in which the rail tive control over the streets; and any
tracks shall be used, and upon which the such contract, if nrade, is revocable at its
future use thereof shall depend, as it may pleasure.
Ibid.
think proper.
7. A corporation, like an individual,
6. By the act of the legislature incor- may be bound by an implied contract, pro-
porating the N. Y. & H. K. R. Co., passed vided the subject matter of it is within
April, 1831 (Laws 1831, p. 323), it was pro- the scope of its corporate authority. Ibid.
vided, that nothing contained in it should
authorize the construction of their railway
S. Courts are bound to assume, where
across or along any of the streets of the a discretion is vested in a municipal body,
city of New York without the consent of exercising functions of a legislative char-
the mayor, &c., who were thereby author-ater, that good reasons existed for doing
ized to grant permission to so construct an act which was the result of such a dis-
it, or to prohibit its construction; and, if cretion.
constructed, to regulate the time and man-
ner of using the same, and the speed with 9. The duty of enforcing all the public
which carriages might move on it. In ordinances of the city of New York, es-
December, 1831, on the application of pecially those applicable to police or health,
the company, an ordinance was adopted is imposed by law upon the Board of Me-
by the mayor, &c., permitting the track to tropolitan Police Commissioners. The
be laid in certain streets, providing, how- ordinance in question might be classed
ever, that if, after its construction, it under either head.
should. in the opinion of the mayor, &c.,
constitute an obstruction or impediment|
to the future regulation of the city, or the
ordinary uses of any street or avenue, the
company should forthwith provide a satis-
factory remedy therefor, or remove the
rails; and, also, expressly reserving and
retaining to the mayor, &c., the right to
regulate the description of propelling
power to be used on the track, and the
speed of the same, as well as all other
power reserved in the act of incorporation.
The ordinance was to have no binding
force, or go into effect,, until the railroad
company, in writing and under seal, cov-
enanted to abide by and perform its con-
ditions. An agreement of this nature
was executed and filed in the office of the
1. A judgment of nonsuit is no bar to.
another action for the same cause, al-
though evidence upon both sides has been
adduced, and the cause has been regular-
ly submitted to the justice by both parties
for decision, if a motion for a nonsuit has
been made and the decision thereon has
been reserved. Seamen v. Ward,
2. A judgment of nonsuit is no bar to 1. In an action against a husband for
another action for the same cause, where clothing furnished to his infant children,
the nonsuit was granted because the the opinion of a witness that they were
plaintiff's evider co failed to make out a necessary for them is not sufficient evi-
case. Tattersall v. Hass,
56 dence of that fact. The circumstances
which rendered the furnishing of the
goods necessary should be shown.
1. Anything done to the hurt or annoy-
2. To sustain such an action, it must
ance of the lands, tenements, or heredita- appear that the articles supplied were fur-
ments of another is a private nuisance. nished with the assent, or by the authori-
Cropsey v. Murphy,
126 ty of the father, or to keep the children
from absolute want, or that there was
3. No action can be maintained against
2. A fat-boiling establishment is a nui- absolute necessity for them.
sance within the meaning of this rule, if
it infect the air with noisome smells, or
with gases injurious to the health. Ibid. a father for clothes furnished to his minor
child, upon the ground of their being ne-
3. Proof that the plaintiff cannot enjoy cessaries, where it appears tithe child
his property in a fall and ample manner, is well provided for by the father. Henry
by reason of the acts of the defendant-v. Betts,
as, for example, that he cannot find ten-
ants for his house on account of the noi- 4. But evidence that a minor child or
some odors produced by the nuisance dered clothes of a party, for which his
complained of—is sufficient proof of special father subsequently paid without objec
damage to sustain an action to recover tion, is sufficient to warrant a finding of
compensation therefor.
Ibid. authority from the parent to the child to
incur such obligations, and make such
contracts on behalf of the father with the
Ibid
same person.
4. Although the damages awarded in
such an action by the court below (in this
case, the Marine Court) may seem to be
excessive, this court will not disturb the
judgment on that account.
5. The public exhibition of obscene
pictures is an offence indictable at com-
mon law. Such pictures are regarded as
a common nuisance, and should be de-
stroyed when the fact of publication is
established. It is the policy of the law
to destroy all such articles, and the loss
thus occasioned to the owner is a part of
the punishment inflicted for the offence
of publicly keeping or exposing them.
Willis v. Warren,
2. An action to recover a penalty for a
violation of the law of 1847, concerning
the pilotage of vessels in the East River
at Hell Gate, should be prosecuted in the
590
name of the master warden of the port of
New York, and not in the name of the
people of the state. The People v. Dem-
ing,
1. A composition deed, though under
|