The Mayor v. Ketchum
New York Supreme Court
This action was brought to recover the amount claimed to be due to the plaintiffs upon an instrument in writing, dated April 25, 1865, whereby they granted, bargained, sold and assigned to the defendants “ the wharfage which shall or may arise,: accrue or become due between the 1st day of May, 18.65.,,and the 1st day of May, 1875, for the use or occupation ’by vessels of more than five tons of burthen of * * * the south side of pier number 51, North river;” such instrument…
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This action was brought to recover the amount claimed to be due to the plaintiffs upon an instrument in writing, dated April 25, 1865, whereby they granted, bargained, sold and assigned to the defendants “ the wharfage which shall or may arise,: accrue or become due between the 1st day of May, 18.65.,,and the 1st day of May, 1875, for the use or occupation ’by vessels of more than five tons of burthen of * * * the south side of pier number 51, North river;” such instrument contained the following, among other provisions, viz.: “And .it is hereby expressly understood and agreed by and between…
1Opinion of the CourtVann, J.
— The judgment of the court of common pleas-in Bowne agt. The Mayor, &c., was not pleaded by any defendant in this action, and hence is not available as a bar or an estoppel (Krekeler agt. Titter, 62 N. Y., 372; Dalrymple agt. Hunt, 5 Hun, 111). If, however, it had been formally pleaded, it would have been of no avail, because the defendants in that case, by moving and obtaining a non-suit as to the plaintiff’s cause of action,, in effect submitted to a nonsuit as to their own cause of action, pleaded as a counter-claim. There was a virtual discontinuance as to their claim against the…
2Cases cited10 opinions
- Krekeler v. . RitterNew York Court of Appeals · 1875
- Smith v. Mayor of New YorkNew York Court of Appeals · 1877
- Christopher v. . AustinNew York Court of Appeals · 1854
- Lewis v. PaynNew York Supreme Court · 1830
- Zule v. ZuleNew York Supreme Court · 1840
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3Cited by4 opinions
- Cowen v. ArnoldNew York Supreme Court · 1890
- O'Neill v. Morris, New York County Courts1899
- Church v. SeeleyNew York Supreme Court · 1886
- Honsinger v. . Union Carriage Gear Co.New York Court of Appeals · 1903