MEMORANDA OF CASES NOT REPORTED IN FULL. JAMES H. MORAN AND ANOTHER, ASSIGNEES OF MATTHEW D. BOGERT, RESPONDENTS, v. CATHARINE BOGERT, APPELLANT. Sale by assignee in bankruptcy — what constitutes a counter-claim in action to recover purchase-price - Arbitration - when invalid. In this action, brought to recover the purchase-price of certain live stock sold by the plaintiffs, as assignees in bankruptcy, the defendant set up, as a counterclaim, a demand for services rendered by her in keeping the stock before and after the time at which the plaintiffs acquired title thereto. Held (1), that so much of the claim, as related to services rendered before the plaintiffs acquired title, was a claim against the estate of the bankrupt, and could not be set up as a counter-claim in this action; (2), that so much thereof as related to services rendered after that time, could be so set up. Defendant's account was, by agreement, left for adjustment to the register in bankruptcy, who determined that $250 would be a proper allowance for her, which sum was deducted by the referee from the purchase-price of the cattle. Held, that such agreement would constitute a common-law arbitration, and would be binding; but, that as it appeared that the arbitration was conducted in an informal manner, without hearing the claimant, or appointing any time for such hearing, it was irregular and not binding on the defendant, and that she was entitled to prove her claim anew. APPEAL from a judgment in favor of the plaintiffs, entered upon the report of a referee. James A. Seaman, for the appellant. Abbott Brothers, for the respondents. Opinion by TAPPEN, J. Present BARNARD, P. J., TAPPEN and DONOHUE, JJ. Judgment reversed, and new trial granted at circuit, unless plaintiff stipulate to deduct $159.50 from amount of judgment; SECOND DEPARTMENT, FEBRUARY TERM, 1875. and if such stipulation be made, then judgment affirmed as modified. No costs to either party. ALFRED M. WILES AND ANOTHER, RESPONDENTS, v. LAMBERT SUYDAM, APPELLANT. Joinder of causes of action — stockholder and trustee of insolvent corporation -causes of action against, as trustee and stockholder may be joined. This action was brought by the plaintiffs, to recover the amount of a judgment against an insolvent corporation, from the defendant, a stockholder and trustee. The complaint charged that the defendant was liable to the extent of his stock, by reason of the non-filing of the certificate as to payment in of the capital of the company, and as trustee, by reason of the failure to make and publish the report required by law. Defendant demurred on the ground of an improper joinder of causes of action. Held, that the demurrer was properly overruled.* APPEAL from a judgment in favor of the plaintiffs, entered upon an order overruling a demurrer. A. H. Hitchcock, for the appellant. Geo. W. Weiant, for the respondents. Judgment affirmed. WILLIAM MCCAFFERTY, APPELLANT, v. NICHOLAS H. DECKER, RESPONDENT. Money had and received for plaintiff's use· when action lies for. The defendant, who had contracted to construct a portion of a railroad, sublet a part of the contract to Fisher & Hart, who employed laborers who worked for them upon the road. Subsequently, Fisher & Hart having absconded, the defendant paid to the laborers the amounts due to them. It appeared that, in paying the laborers, it was customary to deduct from the wages due to each * Durant v. Gardner, 10 Abb., 445; Sipperly v. Troy and Boston Railroad Co., 9 How., 83 SECOND DEPARTMENT, FEBRUARY TERM, 1875. laborer the amount due from him to his boarding-house keeper, or to persons who had sold goods to him, or his boarding-house keeper for him. In pursuance of this custom, the defendant retained $458.16, being the amount due to the plaintiff for goods sold by him to laborers and boarding-house keepers. In an action brought by the plaintiff to recover such amount, held, that he was entitled to recover the same from the defendant, as money had and received by him for plaintiff's use. APPEAL from a judgment in favor of the defendant, entered upon the report of a referee. William Barney, for the appellant. J. H. G. Blythe, for the respondent. Opinion by DONOHUE, J. Present- BARNARD, P. J., TAPPEN AND DONOHUE, JJ. MERWIN S. HAWLEY, RESPONDENT, v. ARTEMAS E. SACKETT, ADMINISTRATOR, ETC., AND OTHERS, APPELLANTS. Deed-when fraudulent as against creditor. Where one F., who was about to go into business, executed a deed of certain real estate to his father-in-law, without any money consideration therefor, intending to retain the property for his own use in case he should be unfortunate in business, which deed was not recorded, nor was the trust made public: held, that the conveyance was void as against subsequent creditors of F.* APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. for the appellant. Spencer Clinton, for the respondent. Opinion by DONOHUE, J. Present TAPPEN AND DONOHUE, JJ. Judgment affirmed with costs. *Case v. Phelps, 39 N. Y., 164; Carpenter v. Roe, 10 id., 227; Fox v. Moyer, 54 id., 125. SECOND DEPARTMENT, FEBRUARY TERM, 1875. JAMES R. WATTS, RESPONDENT, v. WILLIAM B. HILTON, APPELLANT. JOSEPH M. WOODS, RESPONDENT, v. WILLIAM B. HILTON, APPELLANT. Complaint when facts showing cause of action for libel and malicious prosecution may be joined in. Where the complaint set forth a series of acts on the part of the defendant, all aimed at, and seeming and charged to be for effecting, one object, the different acts being the publication of a libel against the plaintiff, and maliciously causing his arrest: held, that a demurrer interposed to the complaint, on the ground that there was an improper joinder of causes of action, and that the complaint did not state facts sufficient to constitute a cause of action, was properly overruled. APPEAL from orders, made at the Special Term, overruling demurrers to the complaints in the above entitled actions. George W. Parsons, for the appellant. Treadwell & Cleveland, for the respondents. Opinion by DONOHUE, J. Orders affirmed, with costs. GEORGE SHERWOOD, RESPONDENT, v. WILLIAM L. FISCHER, Appellant. Negligence of apprentice — bond given by master for damages occasioned by — when liable on. An apprentice in the employ of the defendant, with his assent, took defendant's horse and wagon for a ride, and, by his negligence, injured the assignor of the plaintiff. The apprentice was arrested, and, while he was in custody, the defendant appeared, and, after a full statement of the facts had been made, entered into an engagement in writing, by which he promised to pay a certain sum for the injuries so occasioned. In an action upon this agreement, held, that the defendant was liable thereon. APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion SECOND DEPARTMENT, FEBRUARY TERM, 1875. for a new trial, made on the minutes of the justice before whom the case was tried. Otto Meyer, for the appellant. J. O. Dykman, for the respondent. Opinion by DONOHUE, J. Present BARNARD, P. J., AND DONOHUE, J. Judgment and order affirmed, with costs. STEPHEN C. LUSK, RESPONDENT, v. JOHN C. CAMPBELL AND ANOTHER, APPELLANTS. Alternative defenses — effect of one being sustained — Usury. In this action, brought to recover the amount due on a promissory note for $550, given by the defendant to the plaintiff, the defendant set up in his answer that the note was, by mistake, drawn for fifty dollars too much, or that, if there was not a mistake in drawing it, it was usurious. The referee found that it was by mistake drawn for fifty dollars too much, and deducted that amount from the recovery. Held, that this result sustaining one branch of the defense, precluded the defendant from insisting upon the other, as usury cannot be founded on a mistake. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. Ralph E. Prime and E. R. Keyes, for the appellants. J. P. Sanders, for the respondent. Opinion by TAPPEN, J. Present BARNARD, P. J., TAPPEN and DONOHUE, JJ. Judgment affirmed, with costs. |