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FIRST DEPARTMENT, DECEMBER TERM, 1874.

APPEAL from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

Francis C. Devlin, for the appellant.

C. J. G. Hall, for the respondents.

Opinion by LAWRENCE, J.

DAVIS, P. J., and DANIELS, J., concurred.

Judgment affirmed, with costs.

JOHN A. GODFREY, RESPONDENT, V. WILLIAM MOSER, APPELLANT.

APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee.

This action was brought to recover for professional services, rendered by the plaintiff, an attorney, to the defendant. The General Term reversed the judgment on the ground that the findings of the referee as to the value of the services rendered by the plaintiff was not sustained by the evidence, and, also, because he had erred in allowing interest upon the amount found by him to be due; the account being unliquidated, and no balance having ever been agreed upon. *

Henry A. Gildersleeve, for the appellant.

B. W. Huntington, for the respondent.

Opinion by DANIELS, J.

DAVIS, P. J., concurred.

Judgment reversed and new trial ordered, costs to abide the

event.

* Reid v. Rensselaer Glass Co., 3 Cow., 393; Van Beuren v. Van Gaasbeck, 4 id., 496; McMahon v. New York and Erie Railroad Co., 20 N. Y., 463.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

LAZARUS HALLGARTEN AND OTHERS, RESPONDENTS, V. WILLIAM ECKERT AND OTHERS, APPELLANTS.

UPON the trial of this action, brought upon a promissory note, the court directed a verdict for the plaintiff. Upon an appeal to the General Term, the judgment was reversed, on the ground that an exception contained in the case was well taken. Subsequently, a reargument was ordered to allow the respondent to apply to the judge before whom the action was tried, for a resettlement of the case. This was done, and the exception stricken out. Upon this reargument, the General Term reversed the judgment, on the ground that the evidence in the case was such as to require its submission to the jury, and that the court erred in directing a verdict. Abel Crook, for the appellants.

*

John K. Porter and Lewis Sanders, for the respondents.
Opinion by Davis, P. J.

DANIELS, J., concurred.

BARRETT, J., dissented.

Judgment reversed, and new trial ordered, costs to abide the

event.

GILBERT J. DARLING, RESPONDENT, v. SELAH S.
BREWSTER AND OTHERS, APPELLANTS.

APPEAL from a judgment in favor of the plaintiff, ordered at the Special Term upon the coming in of a referee's report, and from orders overruling exceptions to his report, and denying a motion to strike out portions of the judgment roll.

This case has already been before the Court of Appeals, † where the judgment was reversed and a reference ordered to take and state the accounts of the parties to the action.

* Hallgarten v. Eckert, 1 Hun, 117.

+55 N. Y., 667.

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FIRST DEPARTMENT, DECEMBER TERM, 1874.

Upon this appeal the General Term were of the opinion that the reference had been made in substantial conformity to the opinion of the Court of Appeals, and affirmed the judgment.

Richard B. Huntley, for the appellants.

Scudder & Carter, for the respondents.

Opinion by Davis, P. J.

DANIELS and BARRETT, JJ., concurred.

Judgment and orders affirmed, with costs.

EMOTT SEWARD AND ANOTHER, APPELLANTS, v. GEORGE
TORRENCE AND ANOTHER, RESPONDENTS.

APPEAL from a judgment, in favor of the defendants, entered upon a verdict directed by the court.

This action was brought upon a promissory note. Upon the trial evidence was given tending to show that the note had been paid. The General Term reversed the judgment on the ground that, as the answer did not aver that the note had been paid or settled, and as no motion was made to amend the pleadings to conform to the proof, such defenses could not be regarded as properly before the court.*

R. C. Elliott, for the appellants.

Robert W. Todd, for the respondents.

Opinion by LAWRENCE, J.

DAVIS, P. J., and DANIELS, J., concurred.

Judgment reversed, and new trial ordered, costs to abide the

event.

* Brazill v. Isham, 2 Kern., 9; O'Toole v. Garvin, 1 How., 95; Wright v. Delafield, 25 N. Y., 266.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

CHARLES W. BARTLETT, APPELLANT, v. ALEXANDER MONEIL, RESPONDENT.

APPEAL from two orders made at the Special Term, one allowing an amendment to the judgment roll in this action, and the other denying a motion to require the defendant to appear and be examined, under section 292 of the Code.

The General Term held that the first order was proper, as it simply made the roll conform to the conceded facts of the case, and that the second order was also correct, as the judgment was not one in personam, and as it is only on such judgments that supplementary proceedings are authorized by the Code.

John H. Bergen, for the appellant.

Beebe, Wilcox & Hobbs, for the respondent.

Opinion by DAVIS, P. J.

DANIELS and LAWRENCE, JJ., concurred.

Both orders affirmed, with ten dollars costs on each appeal, together with disbursements.

IN THE MATTER OF THE OPENING OF LEXINGTON AVENUE.

APPEAL from an order made at the Special Term, denying a motion to set aside an order confirming the report of the commissioners for opening Lexington avenue from Sixty-first street to the Harlem river.

The General Term held that the order could only be set aside on the ground of fraud,* and that as no fraud was proved in the case, the order should be affirmed.

*Laws of 1813, ch. 86, § 178; In the Matter of the Commissioners of Central Park, 41 How., 12; id., 50 N. Y., 493; In the Matter of Anthony Street in the city of New York, 20 Wend., 618, 620; Mayor v. Erben, 38 N. Y., 311; Matter of Commissioners of Central Park, 35 How., 256; Matter of Canal and Walker Streets, 2 Kern., 406.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

Ira D. Warren, for the appellant.

E. Delafield Smith, for the respondent.

Opinion by Donohue, J.

LAWRENCE and DANIELS, JJ., concurred.

Order affirmed.

HUGH GARDNER AND OLIVER CHARLICK, PLAINTIFFS IN ERROR, V. THE PEOPLE OF THE STATE OF NEW YORK, DEFENDANTS IN ERROR.

WRIT of error to the Court of Oyer and Terminer, to review the conviction and sentence of the plaintiffs in error for a misdemeanor in unlawfully and willfully removing an inspector of election in the city of New York.

The counsel for the plaintiffs in error admitted that the rulings of the court upon the trial were in conformity with the principles maintained in People v. Brooks* and People v. Bogart,† and conceded that the General Term should affirm the judgment below, so as to entitle the plaintiffs in error to a writ of error to the Court of Appeals.

A. Oakey Hall, Wm. Fullerton and John A. Davenport, for the plaintiffs in error.

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