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remediless. The words “due pro- that sum over and above all counterclaims, cess of law," mean something in

for which action has been this day brought,

and that defendant was a non-resident. the Constitution, and they are just

Nothing was shown as to when the loans as significant in their relation to

or any of them were to be repaid. Held, property as they are in respect to That no breach of contract is shown and life and liberty, and it will not be

that the attachment was properly vacated. claimed that any man can be de- Appeal from order vacating an prived of either life or liberty attachment against the property without an opportunity to be of defendant as a non-resident heard.

debtor. A public officer has no greater The affidavit upon which the atright to commit wrongs than a tachment was obtained alleged in private citizen, and where he is substance that defendant was innot protected by process against debted to plaintiff in $6,000 over the injured party, he must be just and above all counterclaims and as responsible for injuries caused. that such indebtedness arises upon

The question involved here was the following facts, that at sundry not raised in Hessberg v. Riley, 91 times since April 1st, 1883, and up N. Y., 377.

to and including this date (to wit, Order reversed and motion de the date of the affidavit and date nied, with $10 costs and disburse of procuring attachment), the ments of this appeal, and $10 costs plaintiff loaned defendant various of motion to abide final event.

sums of money amounting to Opinion by Van Brunt, J.; J. $6,000, which he agreed to repay, F. Daly and Beach, JJ., concur. and that no part has been repaid,

and defendant still neglects to ATTACHMENT.

repay the same; that suit has

been this day commenced, and deN. Y. SUPREME COURT. GENERAL fendant is a non-resident and reTERM FIRST DEPT.

sides in California, etc. Edward Reilly, applt., v. George

P. J. Joachimsen, for applt.

Stern & Myers, for respt. H. Sisson, respt.

Held, That the attachment was Decided Jan. 25, 1884.

properly vacated. It appears by It is indispensable that the papers upon which

the morning papers that a portion an attachment is obtained should show a of the loan for which this suit is cause of action existing in favor of the brought was loaned and advanced party procuring it.

on the day suit was brought. The affidavit upon which the attachment was

obtained alleged in substance that plaintiff Nothing appears as to when these had loaned defendant at sundry times since loans were to be repaid. The April 1st, 1883, and up to and including court cannot presume, in the abthis date (the date of making the affidavit

sence of any statement to that and procuring attachment) various sums of money, amounting in all to $6,000 ; that effect, that the loan made on the defendant was truly indebted to plaintiff in 1 day suit was brought was to be

repaid on that day. No demand | had been entered in the action is alleged.

before the appeal had been taken. We think no breach of contract

E. Schenck and Abram Wakeby defendant was shown, and

man, for respts. plaintiff's right to an attachment

Frank L. Lawrence and E. was not made out with such clear. Pierrepont, for applt. ness as the law required. 29 Hun,

Held, That if there was any ir306 ; 27 Hun, 242 ; 6 Hun, 526, criticised.

regularity in the form of the apOrder affirmed, with $10 costs, peal it was not a jurisdictional one and disbursements.

affecting the right of the Court to Opinion by Brady J.; Daniels, proceed and hear the appeal with J., concurs.

the consent of all the parties; and, no objection having been interpos

ed or suggested that the appeal PRACTICE. APPEAL. was not in all respects regular

until after the hearing and deci. N. Y. SUPREME COURT. GENERAL

sion of the Court, the respondents TERM. FIRST DEPT.

ought not to be allowed a re-arguAlfred L. Simonson v. Samuel ment for the mere purpose of de1. Wood et al.

feating the appeal by an irregular

ity which they have thus waived. Decided Jan. 25, 1884.

That it is within the power of A re-argument of an appeal from an inter- the Court to allow the appeal palocutory judgment determining the rights

pers to be amended by including etc, of the parties in a partition suit will not be ordered for the reason that, at the

both judgments in the notice of time the appeal was taken, the final judg. appeal and by adding to them a ment of confirmation had been entered in copy of the final judgment. the action, when that fact is first brought Ordered that the appeal papers to the attention of the court upon the

be so amended nunc pro tunc as motion for a re-argument. If such an appeal is irregular, the irregularity of the date of the original notice

is not a jurisdictional one affecting the of appeal so as to enable the respower of the Court to proceed and hear the pondents to appeal to the Court appeal, and the General Term has power to

of Appeals. allow the papers to be amended by includ. ing both judgments in the notice of appeal,

Opinion by Davis, P.J.; Brady and by adding to them a copy of the final and Daniels, JJ., concur. judgment.

Motion for a re-argument of an PARTNERSHIP. LIMITAappeal from an interlocutory judg.

TIONS. ment determining the rights etc., N. Y. COMMON PLEAS. GENERAL of the parties in an action for the

TERM partition of real property. The motion was made upon the ground

William H. Dwinelle, applt., v. that the appeal was irregular for Albert R. Edy, respt. the reason that the final judgment Decided Jan. 21, 1884.

An action for a partnership accounting, agreed to pay one-half the losses

where the articles are under seal, is not barred till the expiration of twenty years, and plaintiff, under his partner

and expenses, has failed to do so, though there be no express covenant to repay the amount of expenses paid by either ship liability to third persons, has partner in excess of his proportion as there paid the whole. The basis of this in provided.

action is defendant's covenant to Appeal from judgment dismiss- pay one-half and its breach. 2 T. ing complaint.

R., 779; 2 Caines, 293. The illusIn April, 1869, plaintiff and detration of co-obligors on a bond fendant formed a partnership by under seal where one pays the an agreement under seal, contain whole suun is not analogous. The ing this provision: “All losses right to contribution in such case happening to the said firm *

results from a principle of equity and all expenses of the business jurisprudence, not contract exshall be borne by the said parties press or implied. 1 Story's Eq. in equal proportions. The busi- Jur., 12th Ed., $493; 57 N. Y., 331. ness was wound up in Dec., 1869. Peters v. Dela plaine, 49 N. Y., Plaintiff, on or before June, 1870, 365; Knox v. Gye, L. R., 5 H. L., paid and expended moneys for 656; and Noyes v. Crawford, 10 said firm in payment of the whole Ch. Div., 31, distinguished. of its debts. Before this action

Judgment reversed; new trial payment of one-half these disordered, costs to appellant to abide bursements was demanded by event. plaintiff from defendant, which was

Opinion by Beach, J.; Van refused. This action was brought Brunt and J. F. Daly, JJ., conOctober 24, 1882. The complaint asked an accounting and judg. ment for one-half the sums paid

FERRIES. by plaintiff.

The court below held the claim N. Y. SUPREME COURT. GENERAL barred by the Statute of Limita

TERM. THIRD DEPT. tions, upon the ground that there was an absence of any covenant in Talcott, Jr., for a ferry license.

In re application of Daniel W. the agreement whereby one partner was to pay the other for any

Decided Jan., 1884. amount paid in excess of one-halt,

An applicant for a license to run a ferry be and, therefore, the action was not

tween Troy and West Troy, uuder Ch. 226, brought upon the indenture.

Laws of 1854, must make proof of service Childs & Hull, for applt.

of thie notice required by that act and also

of that required by tit. 2, Act. 7, Ch. 16, pt. , A. J. Vanderpoel and John M.

1, R. S. Bowers, for respt.

And the objection that this latter notice was Held, That the action is upon a not given may be insisted on by one not an sealed instrument, and so amena

owner of the land through which the high

way adjoining to the ferry shall run, but ble to the twenty year limitation.

who is only interested as licensee of a ferry Code Civ. Pro., $ 384. Defendant

which the proposed ferry will injure.


Certiorari to review a decision of

run a ferry may be valuable, and the Board of Commissioners to it is the intent of the R. S. that it regulate ferries between Troy and be first shown that the owner has, West Troy, created by Ch. 226, after hotice, waived that right. Laws of 1854. Section 5 of that act We think their objection could be provides that the action of this availed of by the appellants, alBoard shall be subject to Tit.2, Art. though merely representing a ferry 7, Ch. 16, of part 1 of R. S., "so far which the proposed ferry would as the same are not inconsistent injure. It seems to us that they with the provisions of this Act." may lawfully insist on any of the The law of 1854 provides that positive regulations of the statute. notice of application for a ferry Order reversed without prejulicense shall be given only to the dice to a renewal of the applicaMayor of Troy and to the Presi. tion on proper notice. dent of the Village of West Troy; Opinion by Learned, P. J.; while Tit. 2 (supra), of R. S., at Boardman and Potter, JJ., con$ 2, provides that no such license cur. shall be granted to any person other than the owner of the land

FALSE REPRESENTATIONS. through which the highway ad

DAMAGES. joining the ferry shall run, unless such owner neglect to apply there. N. Y. SUPREME COURT. GENERAL for after notice; also ($ 3) that TERM. THIRD DEPT. when any person not the owner

Rensselaer Post, respt., v. Edshall apply the owner shall have eight days' notice of the applica- ward Lyke, applt. tion. Application was made here Decided Jan., 1884. by a person not the owner and objection was taken, by the licensees In an action for false representations, in stal

ing that certain land was clear of incumof an established ferry likely to be brances when in fact a judgment was a lien injured by this one, that proof had upon it, it appeared that plaintiff still owed not been made of the eight-day defendant upon the purchase far more than notice aforesaid on certain owners

the amount of the judgment in question.

Held, That plaintiff was entitled to recover of land at the west terminus. The

only nominal damages, as hc had as yet objection was overruled and a li- suffered no damages and was besides in a cense granted.

position, if compelled to pay the judgment, King & Rhodes, for applts.

to keep back the amount from the money

still due defendant, Robertson & Foster, for respt. Held, That the notice prescribed

The action was to recover for al. .by the R. S. was requisite as well | leged false representations in the that required by the law of 1854. sale of land. The sale was by The notice to the Mayor, &c., is in quit claim deed. The fraud was the interest of the public; the no claimed to be in representing the tice of the R. S. is in the interest land as clear when it was incumof the land owner.

The right to bered by a judgment for $94. The Vol. 18-No. 17.

price of the land was $650, on Appeal by plaintiff from order which but $50 was paid in cash, of County Court, dismissing an $600 was secured by bond and appeal from the determination of mortgage given by the purchaser the County Clerk refusing to tax and wife-to whom does not ap- costs against defendant. This acpear. The judgment has not been tion was begun in justices court to paid. The false representations recover damages for obstructing a were denied, but plaintiff recover street, and the complaint demanded as damages (the action being ed a judgment for a sum of money tried as one at law) the amount of only. An appeal was taken and a the judgment.

new trial had in the County Court. R. V. W. Du Bois, for applt. It is conceded that the claim was Hawes & Cochrane, for respt. not before suit presented to the

Held, That there could be no re- treasurer of the village, its chief covery, as no damages were shown. fiscal officer.

fiscal officer. Under $ 3245, Code, If he has been defrauded by the costs were refused. amount of the judgment, plaintiff Merrilt & Ryan, for applt. can set that up when sued on the R. A. Parmenter, for respt. bond and mortgage; they are not Held, Error. Sect. 3247, subdiv. negotiable and he can set up 13, declares that tit. 1, of Ch. 21 this defence. At present plaintiff (which includes $ 3245), applies has land worth $650, on which he only to an action in one of the has paid but $50, and he has not courts specified in $ 3247, subdiv. paid the judgment. 17 Hun, 111. 4; subdiv. 4 does not specily a

Judgment reversed; new trial justices court. Hence $ 3245 does granted; costs to abide event. not apply, and plaintiff is entitled

Opinion by Learned, P. J.; to costs. Boardman and Potter, JJ., con- Order reversed, with $10 costs,

and determination of Clerk re

versed, with $10 costs. MUNICIPAL CORPORATION.

Opinion by Learned, P. J.;

Bockes and Boardman, JJ., conCOSTS.







Lelia E. Marsh, applt., v. The Village of Lansingburgh, respt.

Decided Jan. 1884.



James McGivern, respt., v. Thomas Fleming, applt.

Sect. 3245 of the Code, declaring that costs

cannot be awarded against a municipal corporation unless the claim is first presented to its chief fiscal officer, &c., does not apply to an action begun in justices court, even though such action be appealed to the County Court and there be re-tried.

Decided Jan. 21, 1884.

A memorandum or note of a contract for the

sale of goods, etc., does not conform to the

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