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cuit and ordered heard at General bank, judgment was recovered on Term in first instance.

it against the company, and exeAction to charge defendant as cution issued thereon was returned trustee of the Rochester Iron Man- nulla bona. Afterwards the bank ufacturing Co., a corporation or- recovered judgment on the third ganized under Ch. 40, Laws of note against A. and B., upon 1848, with a debt of the company which nothing has been paid. D. for failure to make the annual had executed a mortgage to secure report, as required by $ 12 of the his indorsements, which covered Act. Plaintiff has no foundation the third note but not the first for its claim unless it be the debt one. The mortgage was foreclosed growing out of the discount of a in an action in which this plaintiff certain note as follows: October was a plaintiff and claimed an in2, 1876, the iron company made its terest by reason of the third note. promissory note for $10,000, pay- Plaintiff also proved its claim able four months from that date, under the judgment recovered on to the order of A., B., C. and D. the last note in an action against at the Bank of Hamilton. The the stockholders of the iron compayees indorsed the note and the pany, brought under $ 24 of the bank discounted it, the iron com Act of 1844. pany receiving the proceeds to its J. Breck Perkins, for deft. own use. On the day when the Edward C. Jones, for plff. note fell due another note for the Held, That, in general, the taking same amount, payable to the order by a creditor of the debtor's note of the same persons in four months for an existing indebtedness does at said bank, was made by the not merge or extinguish the incompany, indorsed by the payees, debtedness, but only extends the and discounted by the bank, and time of payment, and successive rethe proceeds were credited to the newal notes are simply extensions company, which drew its check on from date to date of the time of the bank two days later for $10,000 payment, 76 N. Y., 521 ; but in and the bank returned to the com the present case there was no origpany the October note and charged inal indebtedness independently the company with the amount of of the notes. As to this distincthe check. At the maturity of the tion, see 10 S. & R., 75; 4 J. J. second note a third one for the Marshall (Ky.), 1; 12 Peters, 34; same amount, like the others in 81 N. Y., 218; and note to i all respects, was discounted by the Smith L. C, 458. See also, 21 bank, the proceeds were credited Wend., 499 ; 24 id., 115. to the company, and the second Still, we think, in view of the note was paid by the company's evidence, it cannot be said as matcheck, which was charged to it on ter of law that the first note was the books of the bank. The third paid and extinguished, but that note not having been paid at ma the question is one of fact, de. turity was prosecuted by the pending upon the intention of the

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parties to the transaction. The pany moved to discontinue the refusal to leave that question to proceedings, which was granted, the jury was error.

and the company was directed to New trial ordered, costs to pay respondents their reasonable abide event.

disbursements and counsel fees Opinion by Smith, P. J.; Bar. therein," and it was referred to ker, Bradley and Haight, JJ., determine the amount thereof. The concur.

amount reported by the referee
was a large percentage of the

amount involved, but was reasonRAILROAD. CONDEMNA

ably incurred. At Special Term an TION. PRACTICE.

order was made denying the comN.Y. SUPREME COURT. GENERAL pany's motion to amend the order TERM. FIFTH DEPT.

of discontinuance and reference so

as to restrict the allowance to reIn re application of The N. Y., spondents' simple costs, disburseW. S. & B. RR. Co., applt., v.

ments, etc. Respondents' motion Thomas P. Thorne et al., respts.

to confirm the referee's report was Decided Oct., 1884.

granted at the same term. From

the latter order this appeal is taken Before confirmation of the commissioner's report in railway condemnation proceed

and a purpose is expressed in the ings motion may properly be made by the notice of appeal to bring up for railway company to discontinue the pro- review the intermediate orders receedings, and the court in granting it may ferred to. annex such terms as justice requires.

J. M. Davy, for applt. The commissioners appointed to Brown & Garfield, for respts. appraise the damages occasioned Held, That the court might de. by the appropriation by the compa- feat the company's purpose to disny of lands owned by Thorne and continue, and might make it deoccupied, as his tenants, by the pendent on such conditions as the other respondents, made report court might deem reasonable, and awarding to Thorne $3,500 dam- it was usual to apply to the court ages, and to the tenants $2,200. for leave to discontinue. 67 N. Y., Motion for confirmation was denied 242 ; 20 Wend., 618 ; 56 N. Y., 144; with instructions to the commis- 85 id., 478, reversing 16 Hun, 57. sioners to make their report more See 75 id., 375; id., 482; 85 id., specific. They made another report 648. which the court refused to confirm, The statutory restriction upon and the court directed the commis- extra allowance of costs has no sioners to ascertain and report application on a motion for favor. other damages to the tenants. An- Code Civ. Proc., $ 3240 ; 55 N. Y., other award was made of $3,500 to 145 ; 85 id., 478 ; id., 648. Thorne and $9,397 to the tenants. The company could not disconNo motion was made for confirma- tinue to the prejudice of respondtion of that award, but the coin ents so that the court could not,

upon motion, assume control of the the provisions of the R. S. before the enact

ment of said section of the Code. proceeding for the protection of

A motion for the punishment of a defendant respondents. 75 N. Y., 375 : 30

in an action for separation as for a contempt Hun, 649.

of court for the non-payment of alimony Quære, Whether by voluntarily directed to be paid by the judgment in the

action cannot be opposed upon the affidavit proceeding under the order of dis

of such defendant that he is unable to make continuance upon the terms there

such payment. That is made the subjectprescribed, and of the reference matter of a motion on his part by S 2286 of and taking the benefits of the the Code of Civil Procedure. order, appellant has not waived the right to review that order. 3

Appeal from an order directing

the issuing of an attachment Abb., 142; 4 id., 468 ; 15 Hun, 188; 25 id., 319.

against the defendant for contempt The intermediate orders are per directed to be paid by him to

of court for failing to pay alimony mitted to be brought up for re. view. Code Civ. Proc., $ 1358. plaintiff by a judgment issned in They are within the discretion of the action for a separation.

The motion was opposed upon Special Term. Order affirmed, with $10 costs

the ground that since by the judgand disbursements.

ment the right to apply for leave Opinion by Bradley, J.; Smith, to issue execution for the collection P. I., Barker and Haight, JJ., the plaintiff, she was precluded

of alimony unpaid was reserved to concur.

from enforcing such judgment by

contempt proceedings; that $ 1773 ALIMONY. CONTEMPT OF of the Code of Civ. Pro. authorizCOURT.

ing such proceedings did not apN. Y. SUPREME COURT. GENERAL ply to this case, since the judgment

had been recovered before its enTERM. FIRST DEPT.

actment, and that it appeared by Kate T. Ryckman, respt., v. the affidavit of the defendant, read Garrett W. Ryckman, applt. in opposition to the motion, that Decided Oct. 31, 1884.

he was unable to pay the alimony

directed to be paid by the judg. The fact that a judgment entered in an action ment.

for a separation directing the payment of
alimony reserves liberty to the plaintiff to C. E. Rushmore, for applt.
apply for leave to issue execution for the

John Henry Hull, for respt. collection of alimony unpaid, does not prevent the punishment of the defendant as

Held, That the plaintiff was not for a contempt of court for the non-pay

ment of the alimony so directed to be paid. precluded from instituting these Section 1773 of the Code of Civil Procedure, proceedings by the provision in

authorizing the punishment of the defend the judgment for the issuing of ant for a contempt for the non-payment of execution for the collection of unalimony directed to be paid in a judgment for separation is applicable to a case in paid alimony. 18 Hun, 466 ; 80 which the judgment was recovered under N. Y., 156; 7 Hun, 208; 70 N.Y.,

Vol. 20.--No. 6a.

270 ; 81 N. Y., 349; 67 id., 264; | the Code of Civ. Pro., and before distingnished.

he can be relieved under its proThat $ 1773 of the Code of Civ. visions an opportunity must be Pro. expressly authorizing this afforded to the plaintiff to controproceeding was applicable to this vert the statements made by him case, for while it is true that it re- for that purpose and that is not fers to judgment and orders made secured where the affidavit is inand prescribed in the article of the terposed merely as an answer to an Code containing it and the two application for his punishment. preceding articles, still the sections 13 Hun, 368, distinguished. thus referred to and contained in Order affirmed. the two preceding articles are the Opinion by Daniels, J.; Davis, same as those previously contained P. J., and Brady, J., concur. in the Revised Statutes em powering the court to provide for the payment of alimony in favor of LIQUIDATED DAMAGES. the wife, 3 R. S., 5th Ed., $ 58 and N. Y. SUPREME COURT. GENERAL 238, $ 67, and what the Code has

TERM. FIRST DEPT. done therefore has been to re-enact and continue in force without in Jane Reilley, as executrix, &c., terruption these preceding provis- respt., v. The Mayor, &c., applt. ions, and for that reason a judg

Decided Oct. 31, 1884. ment rendered before the enactment of this portion of the Code is a

A contract with the city for the regulating judgment rendered as prescribed

and grading of a certain street contained a

provision authorizing the city to retain out in the articles already mentioned,

of the moneys which might be due or beand $ 1773 the husband was sub come due to the contractor under the jected to a proceeding of this na agreement, as liquidated damages and not ture for a failure to comply with

as penalty for the non-completion of the

work within a time specified, a certain sum the directions contained in a judg

for each day that the time taken to comment so recovered.

plete such work exceeded the stipulated That 45 Supr. Ct. 355 ; 46 id.,

time. Held, That the sum so forfeited was 218; 23 Hun, 360, are distinguished

stipulated damages and not a penalty. from this case by the authority Appeal from judgment entered given by $ 1773 of the Code of Civ. upon verdict directed by the court. Pro.

The plaintiff's testator entered That the defendant could not re into a contract with the defendlieve himself of the obligation to ants for the regulating and gradcomply with the direction con- ing of 141st street from 8th avenue tained in the judgment by oppos- to St. Nicholas ave. The contract ing this motion with his affidavit provided that the work should be to the effect that he was unable to completed in 125 days, and conpay the alimony ordered. That tained a provision authorizing the that is made the subject matter of defendants to deduct and retain a motion on his part by $ 2286 of out of the moneys which might be

due or become due to plaintiff's NEGLIGENCE. COLLISION. testator, under the agreement, as

N. Y. SUPREME COURT. GENERAL liquidated damages, and not as

TERM. FIFTH DEPT. penalty for the non-completion of the work within the time stipu. Niles Case respt., v.

Frank lated for its completion, a certain Perew, applt. sum for each and every day that

Decided Oct., 1884. the time taken to complete the work exceeded the time stipulated A propeller, in trying to reach her dock withfor its completion. The time oc out a tug, collided with a canal-boat.

Held, Error to admit evidence that the pro. cupied in the completion of the

peller, after the accident, hired a tug to work exceeded the contract time

assist her to her dock, and to admit evi. by 5+ days, and the defendants re.

dence to prove that it was not the custom fused to pay $972 of the amount to obey an ordinance as to keeping a light

on canal-boats. earned by the contractor, claiming that they were entitled

to re

Appeal from judgment on vertain that amount by the clause of dict at Circuit, and from order dethe contract above mentioned. nying new trial. The plaintiff thereupon brought Action for damages resulting this action to recover said sum. from the collision of defendant's

Upon the trial the court ruled propeller with plaintiff's canalthat the clause in question gave boat. The accident happened at the desendants no right to make night. The canal-boat was lying any deductions from the money moored in a slip at an elevator due the contractor, except to the dock in Buffalo harbor. The proamount of actual damage suffered peller attempted to enter the sliy by them, and, in the absence of without the aid of a tug, and ran any proof of

of such damages, into the canal-boat. After the coldirected a verdict for plaintiff. lision the master of the propeller E. H. Lacombe, for applt.

used a tug while passing through L. L. Kellogg, for respt.

the slip to her own dock. There

is no positive law requiring the Held, That the sum stipulated use of a tug while navigating any in the contract to be forfeited for part of the harbor. The Common each day taken to complete the Council of Buffalo have control of work over the specified time was the harbor, and passed an ordiliquidated damages, and not a

nance requiring “ canal-boats tu penalty. 5 Seld., 551; 1 Abb. Ct. keep an out-port and conspicuous of Ap., 455; 69 N. Y., 45.

light." Defendant gave evidence Judgment reversed and new trial tending to show that the canalordered.

boat did not observe the ordi. Opinion per curiam.

nance, and plaintiff was permitted to prove that it was not the custom of canal boats to conform to the ordinance.

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