CONVERSION. 2. No court has a right to declare a legislative act unconstitutional unless it is glaringly so. N. Y. Superior Ct., Chambers, 1860, Macomber a. Mayor, &c., of New York, Ante, 35. 3. This rule applies with peculiar force to the action of a single judge on a collateral motion. Ib. CONTEMPT. An executor being enjoined by order of the surrogate from further action as executor until the conclusion of a controversy then pending, began an action in his own name, as executor, in the Supreme Court :— Held, not a contempt of court for which the surrogate would direct an attachment to issue. The surrogate has no power to direct or control the conduct of executors, &c., in other courts. N. Y. Surr. Ct., 1863, Beebe a. Hatch, 1 Redf., 475. CONTRACTS. 1. Under a contract for the purchase of goods, where the right of property is not passed by the contract, the buyer is not bound to accept the articles when tendered, unless they correspond in quantity with what was bargained for. N. Y. Superior Ct., 1864, Reimers a. Ridner, Ante, 292. 2. The purchaser of goods at sea, of the quantity of which he cannot be presumed to be aware, is not bound to accept part of the quantity bought, any more than if the goods were in a distant warehouse. Ib. 3. Where, under a contract as follows, "Sold to R. 733 bags saltpetre to arrive on board ship A.," the seller tendered 393 bags, about half the saltpetre on board having been destroyed by the sea, it appearing, however, that the ship A. arrived with 786 bags on board;-Held, that the purchaser was not bound to receive the quantity tendered. Ib. CONVERSION. 1. The omission or refusal to pay over moneys received by a factor, agent, or trustee, in the course of his agency or trust, will not lay the foundation of an action of trover. [Paley on Ag., 79; 1 Ves. Jr., 424; 16 N. Y., 250.] Supreme Ct., V. Dist., 1863, Harris a. Schultz, 40 Barb., 315. 2. Where a party intrusts property to a partnership to sell and realize thereon, as his agents and factors, and pay over the proceeds to him, they do not, upon a sale by them, become tort-feasors, as upon an unauthorized disposal thereof, so as to authorize an action of trover against any of them alone. Their liability rests upon contract, and not on tort, and is necessarily joint and not several. Ib. COSTS. 3. In such a case, an action for a refusal to account for and pay over the proceeds of property sold by them, brought against one of the partners only,-Held, on demurrer, defective for the nonjoinder of the other partner. Ib. CORPORATIONS. In proceedings to enforce the liability of stockholders, &c., of banks, under the act of 1849, if there should be, after assessing the stockholders, a sum in the hands of the receiver more than was expected at the time of the assessment, it will be applied, so far as necessary, to payment of creditors in preference to being distributed among the stockholders. Supreme Ct., III. Dist., Sp. T., 1863, Pruyn a. Van Allen, 39 Barb., 355. COSTS. 1. The provisions of the Revised Statutes (2 Rev. Stat., 90, § 41) forbidding the recovery of costs against executors or administrators, except in certain cases, and referred to in section 317 of the Code, apply only to the general costs of the action, and have no reference to appeal or interlocutory costs. Supreme Ct., I. Dist., 1864, Hunt a. Connor, Ante, 466. 2. The provisions of 2 Rev. Stat., 90, § 41,-directing that costs shall not be awarded in actions brought against executors or administrators in their representative capacity, except for unreasonable resistance, neglect or refusal to refer the claim,-do not affect actions brought against the deceased in his lifetime, and revived by his executors or administrators. N. Y. Com. Pl., Chambers, 1863, Mitchell a. Mount, Ante, 213. 3. A plaintiff recovering judgment in an action where a warrant of attachment as a provisional remedy has been issued, but subsequently set aside by the court, is not entitled to an allowance under § 308 of the Code. N. Y. Superior Ct., Sp. T., 1863, Iselin a. Graydon, 26 How. Pr., 95. 4. Where the plaintiff unites in the same action a claim that is not disputed with one that is, the defendant may remove from the controversy the undisputed claim by the offer under § 385 of the Code of Procedure, and thus make the subsequent costs of the litigation depend upon the result of the litigation in regard to the disputed claim. Supreme Ct., II. Dist., 1863, Budd a. Jackson, 26 How. Pr., 398. 5. The "more favorable judgment" spoken of in section 385 of the Code, which he must recover to entitle him to costs, does not mean, in the case of a money demand upon which interest is accruing, a sum greater, at the time of the report or verdict, than the sum offered. The test is the sum due to the plaintiff at the time of the offer, and not COSTS. that sum increased with the interest intermediate the date of the offer and the date of the report or verdict, [1 Duer, 694; 15 How. Pr.,420]. Ib. 6. Thus, when the sum named in the written offer was $357.44, and the sum found due the plaintiff by the referee was $397.14, being $19.73 in excess of the sum expressed in the offer, but such excess was not equal to the interest from the time of the offer to the date of the report ;-Held, that the plaintiff had failed to obtain a more favorable judgment, and the defendant was entitled to costs. Ib. 7. Where, upon the death of a plaintiff, after final judgment in his favor, his personal representatives bring an action upon the judgment, to obtain the same relief as was formerly obtained in such cases by a writ of scire facias, it is in the discretion of the court to allow costs or not. N. Y. Superior Ct., 1861, Ireland a. Litchfield, 8 Bosw., 634. 8. It seems, that in an action in the nature of a scire facias the costs follow the recovery as a matter of course. Supreme Ct., IV. Dist., Sp. T., 1863, Brotherson a. Consalus, 26 How. Pr., 213. 9. Where a motion to dismiss the action, for neglect to try, is denied on plaintiff's showing ground for so doing, the terms imposed on him should be, payment of defendant's costs from the time at which plaintiff suffered the cause to go off the calendar. N. Y. Com. Pl., Sp. T., 1864, Corbett a. Claflin, Ante, 418. 10. Where, on an appeal from the decision of a surrogate, the decision is affirmed by the Supreme Court, and on appeal to the Court of Appeals both decisions are reversed "without costs," the appellant is not entitled to costs in either court. Supreme Ct., 1862, Macgregor a. Buell, Ante, 31. 11. There is no limit to the number of term-fees taxable for terms in which a cause has been necessarily on the calendar of the Court of Appeals. N. Y. Superior Ct., 1863, Glentworth a. Mount, Ante, 15; Supreme Ct., 1863, Shaw a. Dwight, Ante, 18. 12. The provision of section 307, subdivision 7, of the Code of Procedure, as amended in 1858 and 1862, by which term-fees are given "for every circuit or term, not exceeding five circuits and five special and five general terms,"-gives term-fees for every term during which a cause is necessarily on the calendar of the Court of Appeals, and is not heard, or is postponed by order of the court; but does not limit the term fees in that court to five. N. Y. Superior Ct., 1863, Glentworth a. Mount, Ante, 15. 13. Under the Laws of 1840, 1844, and 1854, costs are now properly Supreme Ct., I. Dist., 1864, allowed on a common-law certiorari. Amendment, 5. COURT. COUNTER-CLAIM. 1. The right of the plaintiff to claim, and the right of the defendant to counter-claim, upon any given or supposed facts in controversy, must be reciprocal. Supreme Ct., 1862, Agate a. King, Ante, 159. 2. Thus, in an action for the foreclosure of a mortgage, defendants nɔt personally liable to pay the amount secured, cannot interpose a counterclaim arising out of transactions unconnected with the subject of action. Ib. 3. In an action not upon contract, a counter-claim which does not arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or which is not connected with the subject of the action, is inadmissible. N. Y. Superior Ct., Chambers, 1864, Henry a. Henry, Ante, 411. 4. In an action for a divorce on the ground of defendant's adultery, the defendant cannot set up, by way of counter-claim, the adultery of the plaintiff, and claim judgment of divorce against plaintiff, if the allegation is proved. Supreme Ct., VII. Dist., 1862, R. F. H. a. S. H., 40 Barb., 9. Johnson, J., dissented. 5. The subject of an action for a divorce is the alleged wrongful act of the defendant, and the alleged adultery of the plaintiff is not "connected with the subject of the action" within the meaning of §150 of the Code, so as to constitute it a proper counter-claim within that section. Ib. Compare DIVORCE, 5. 6. In an action by a mortgagee of chattels to foreclose the mortgage and to obtain a personal judgment for the debt, subsequent purchasers of the mortgaged property cannot avail themselves of a demand in favor of the mortgagor, against the mortgagee, as a counter-claim. N. Y. Superior Ct., 1861, Beers a. Waterbury, 8 Bosw., 397. 7. A demand not set up as a counter-claim, in the answer, cannot be recovered as such. N. Y. Superior Ct., 1861, Beers a. Waterbury, 8 Bosw., 396. COURT 1. Under the Laws of 1846, 4, ch. 2,-where it provides that whenever the trial of a cause shall have been commenced in the Court of General Sessions of New York, "and the same shall not be concluded before the expiration of the term of said court, it shall be lawful for the said court to continue in session until the conclusion of said trial, and to proceed to judgment, if they shall so deem necessary, in cases where convictions shall be had,"--the court may, while prolonging its session after the expiration of the term, for the purpose of concluding a trial, CRIMINAL LAW. こ pass sentence on a prisoner convicted before the expiration of the term. Ct. of Appeals, 1863, Lowenberg a. People, 26 How. Pr., 202. 2. By the terms of a lease made in 1837, in case of disagreement as to the rent, application was to be made for the appointment of appraisers to "the chancellor of the state of New York for the time being." Held, 1. That the parties intended the Court of Chancery, and not the mere incumbent of the office. 2. That the Supreme Court being the lawful successor and recipient of the powers and duties formerly vested in the Court of Chancery, was the proper tribunal to which to apply for the appointment of appraisers. And a justice at special term may make the order, on notice. Supreme Ct., III. Dist., 1861, N. Y. Central R. R. Co. a. Saratoga and Schenectady R. R. C., 39 Barb., 289. COURTS OF SESSIONS. The provision of the laws of 1859 (Laws of 1859, 465, ch. 208) providing that it shall be lawful for "the court of sessions of any county of this State" to continue its sittings at any term thereof so long as it may be necessary, in the opinion of such court, for the despatch of any business or the determination of any cases that may be pending before such court,-is applicable to the Court of General Sessions of the Peace in and for the city and county of New York. That court is but a court of sessions for the county of New York. A court of general sessions of the peace and a court of sessions of any county, are one and the same tribunal. [14 Abbotts' Pr., 91.] Ct. of Appeals, 1863, Lowenberg a. People, 26 How. Pr., 202. CREDITORS' ACTION Where a judgment creditor commences an action against his debtors and their assignees, and obtains a judgment declaring the assignment void, and appointing a receiver, he has an equitable lien upon the assets, which dates from the commencement of the action. So held, even where no injunction was issued. N. Y. Superior Ct., 1861, Field a. Sands, 8 Bosw., 685. CRIMINAL LAW. 1. Where the Court of Sessions, on sentencing to death a convict of murder, designated in the warrant the day of execution, instead of leaving it for the governor to designate ;-Held, that the error did not entirely vitiate the sentence, and was not ground for a reversal of the judgment. Ct. of Appeals, 1863, Lowenberg a. People, 26 How. Pr.. 202. VOL. XVII.-33 |