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FIRST DEPARTMENT, NOVEMBER TERM, 1880.

dealers in tobacco; and that said false tobacco sample ticket is calculated to deceive producers and dealers in tobacco, and actually has, and still does mislead many of them to buy tobacco sampled by the defendants, as tobacco sampled by the plaintiffs, greatly to the damage and prejudice of the plaintiffs.

"If these allegations, taken in connection with the allegation of ownership of the sample ticket in the plaintiffs, and of the wrongful use of the similitude or imitation thereof by the defendants, had been proved on the trial, they would, if unanswered in any form, have entitled the plaintiffs to a recovery of some damages, or to some relief. It is not necessary for us to determine whether the plaintiffs would or would not probably have succeeded in their action upon the trial. They were entitled to put in their evidence tending to establish these various facts; and, if they had shown evidence fully sustaining the allegations of their complaint, they would have made at least a prima facie cause of action that called for the consideration of the court, and for some answer or defense on the part of the defendants.

"We think the court below erred in its summary disposition of the case upon either of the grounds suggested by the learned counsel, and for that reason we must reverse the judgment and order a new trial, with costs to abide the event."

Edward S. Clinch, for the appellants.

W. W. Goodrich, for the respondents.

Opinion PER CURIAM.

Present-DAVIS, P. J., BRADY and BARRETT, JJ.

Judgment reversed, new trial ordered; costs to abide event.

FIRST DEPARTMENT, NOVEMBER TERM, 1880.

IN THE MATTER OF THE PETITION OF JOHN B. CONLEY TO VACATE ASSESSMENT.

Assessment-one who purchases the property subject to it, and who agrees to pay it, cannot apply to have it vacated.

APPEAL from an order made at Special Term, vacating an assessment.

The court, at General Term, said: "It appears that the assessment which the petitioner sought to vacate was confirmed on February 3, 1876, and that he purchased the property in June, 1880, subject to all taxes and assessments, which he covenanted and agreed to pay. It does not appear, as was said in the Matter of Moore (8 Hun, 514), from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is, he would be indemnified, and that must control until there is evidence to the contrary. If it formed a part of the consideration, the presumption is, if any wrong was done, that the prior owner is the one aggrieved, because he has made an allowance to cover it in the transfer of the property. The application is bald on this subject.”

E. H. Lacombe, for the city of New York, appellant.

Alexander B. Johnson, for the petitioner, respondent.

Opinion by BRADY, J.; Davis, P. J., and BARRETT, J., con

curred.

Order reversed.

FIRST DEPARTMENT, NOVEMBER TERM, 1880.

FRANCIS L. NORTON, RESPONDENT, v. JAMES GORDON BENNETT, APPELLANT.

Non-resident-who will be regarded as one, and required to give security for costs.

APPEAL from an order denying the defendant's motion, to compel the plaintiff to give security for costs.

The action was brought to recover damages for an alleged libel published by the defendant in his paper, on June 5, 1875.

The court, at General Term, said: "We think that after the commencement of this suit the plaintiff became a non-resident, within the meaning of that term as used in those provisions of the Revised Statutes which have regard to security for costs. His business is of a somewhat transient character, consisting of the introduction into ships, hospitals, &c., of a patent automatic ventilator. For the last two years he has had no abiding place within this State. Nor has he had any property, interests, nor even place of business here. To all practical intents and purposes, he has entirely severed his connection with this locality. It is not pretended that he could vote here, nor that he is liable to jury duty, nor that he is assessable for personal tax. Then, as to his immediate family, his wife has been with him since the summer of 1878. They have lived in the cities of Baltimore, Md., Washington, D. C., and Chelsea, Mass., and their home has been in the latter city since about the month of April, 1879.

"The deduction from these facts cannot be affected by the plaintiff's mere assertion of continued residence in this city, nor by the expression of an intention to retain such residence; his intention must be gathered from his acts, considered with reference to his habits, occupation and surroundings. The case is clearly within the object and intent of the statute. As to the amount, we think that a bond in $500 would be reasonable."

John Townshend, for the appellant.

Dennis McMahon, for the respondent.

FIRST DEPARTMENT, NOVEMBER TERM, 1880.

Opinion PER CURIAM.

Present-DAVIS, P. J., BRADY and BARRETT, JJ.

Order reversed, with $10 costs, and disbursements; security for costs in the usual form.

HENRIETTA ABRAHAMS, RESPONDENT, v. CHARLES B. BENSEN, APPELLANT.

Change of the place of trial—when ordered for the convenience of witnesses—the court will consider the state of the calendars in the two places, in passing upon the application.

APPEAL from an order made at Special Term, denying a motion made by the defendant to change the place of trial.

This action was brought in Rockland county, where the plaintiff and the surviving defendant, the sheriff of that county, resided. The action was brought to recover the possession of certain goods seized by the defendant under an attachment sued out by one Hyman, who was a co-defendant. It seems that Hyman undertook the defense of the action and that the sheriff in effect intrusted the defense to him. Hyman moved in the second district, to change the place of trial from Rockland county to New York, for the convenience of witnesses. The plaintiff resisted the motion, but it was granted. The sheriff claims that this motion was made and granted without his assent or knowledge. He afterwards moved to vacate the order, which was done; but on appeal the General Term of the second department reversed the order of the Special Term, on the ground that the sheriff had acquiesced in the change of place of trial, and was therefore too late in his motion. The case has been twice tried in the city of New York, the first trial occupying ten days, and the second nine days, and each resulting in a disagreement of the jury.

The court, at General Term, said: "The original motion to change the place of trial from Rockland to New York obviously

FIRST DEPARTMENT, NOVEMBER TERM, 1880.

ought not to have been granted, but it seems equally clear that the General Term was right in holding that acquiesence had cured the error. We cannot, therefore, grant this motion on the ground that the place of trial ought to have been retained in Rockland county. The only question is whether, under the peculiar circumstances now existing, the change ought not to be made. Both of the present parties reside in Rockland county. The defendant is prosecuted for acts done in his official character as sheriff. His co-defendant is dead, and is shown to have died insolvent. The cause of action arose wholly in Rockland county. A large number, if not the most of the witnesses on both sides, reside in that county. Two trials have already been had in New York, both of which have resulted in the disagreement of the jury. Nearly three weeks of the time of our courts have already been taken up with the trials. The defendant swears that it will be almost if not quite impracticable to procure the attendance of his witnesses in the city of New York again. It is obvious, we think, that it will be more conve nient for the witnesses on both sides to attend a re-trial of the action in Rockland county; and our knowledge of the condition of the calendars in the two counties satisfies us that less delay will attend a trial in Rockland of an issue so old as this, than must attend its trial in this city. Besides, we think it our duty to consider the state of business in the Circuits of New York, and the great length of time already lost by the courts of New York in the trials that have already been had.

"On full consideration we think that the private interests of the parties and the ends of justice as between them will be fully as well served by a trial in Rockland as in New York, and that the public interests will be better served if the change be made. We think, therefore, that the order of the court below should be reversed, and an order entered changing the place of trial to Rockland county, without costs to either party of the motion or of this appeal."

George F. Langbien, for the appellant.

George H. Forster, for the respondent.

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