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Kaufman o, Keenan.

attachment cannot be effected before they will decay (Davis v. Ainsworth, 14 How. Pr. 347; Wallace v. Baker, 8 Vt. 440). Live animals which are liable to perish, waste or be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, are also perishable (Anonymous, 18 N. J. L. [3 llarr.] 26; Megee v. Beirne, 39 Pa. St. 50; Byrnes v. Robinson, 19 Weekly Dig. 45+; Note to 1 N. Y. Civ. Pro. 387).

Application for leave to sell, as perishable property, the two horses levied on under the attachment, granted (Code Civ. Pro. $ 656). No costs.



$ 66.

Attorney's lien— When prevents set-off of judgment.

A judgment for costs recovered in an action upon an undertaking given

in another action cannot be set off against a judgment for costs in the latter action to the prejudice of the attorney for the judgment

creditor therein. (Decided December 14, 1887.)

Motion by defendant to set off against the judgment entered herein so much of a judgment entered in the court of common pleas, in favor of Patrick Keenan and Gerald Fitz Gibbon against the plaintiff herein, and assigned to the defendant, John Keenan, as may be necessary.

This action was tried before Justice MCADAM and a jury, and resulted in a verdict for the plaintiff, and judgment was entered on snch verdict in favor of the plaintiff against the defendant for the sum of $462.34. From said

Kaufman o. Keenan.

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judgment the defendant appealed to the general term of this court, where said judgment was afirmed. An appeal was taken from the judgment of the general terın ileriupon entered to the court of common pleas of the city and county of New York, where said judgment was reduced to $110. Thereafter, the judgment so reduceri was paid, and the same canceled and discharged of record; but the judgment for the costs of the appeal to the general term of the city court remain unpaid. In the month of April, 1884, plaintiff commenced an action in the court of common pleas against Patrick Keenan and Ge! all Fitz Gibbon to recover the sum of 886.), an undertaking given by said Keenan and Fitz Gilbon for the defendant on his appeal herein from the judgment of trial term to the general term cf this count. Issue was joined and the cause tried, which resulted in a dismissal of the complaint on the merits, and judgment for the defendant for the sum of $108.02. Plaintiff took an appeal from said judgment to the general term of the court of common pleas, which resulted in a reversal and an order granting a new trial. Subsequently, in the month of June, 1887, the cause was again tried, and resultel in a judgment again in faror of said Fitz Gibbon and Keenan, and against the plaintiff, David Kaufman, herein, for the sum of $264.49, which judgment was assigned to John Keenan, the defendant in this action. Afterward, the plaintiff, David Kaufman, through his attorney, who appeared for him in all the proceedlings herein, issued an execution to the sheriff upon the said judgment for $86.34, and said sheriff threatened to enforce said judgment. The defendant, upon an affidavit setting forth these facts, and that the plaintiff, David Kaufman, is irresponsible, and said judgment of $264.49 is still unsatisfied, moved that an order be entered in favor of the plaintiff, and against the defendant, for the sum of $S6.3+, and that judgment recovered by Gerald Fitz Gib bon and Patrick Keenan against the plaintiff, David Kaufman, for the sum of $264.49, and assigned to the defend

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Obart o. Simmons Soap Company.

ant, John Keenan, or so much thereof as might be necessary, be allowed and set-off as against the plaintiff's judg. ment herein, and, when so allowed a set-off, the judgment herein be canceled and discharged.

Joseph E. Nevhırger, for defendant, Keenan, and motion.

Frederick Hemming, attorney for plaintiis, opposed.

McAdam, Ch. J.—The judgment for costs was recovered in this court. The judgment assigned to the defendant was recovered in another action. The application of the defendant to set off this judgment, to the prejudice of the attorney who owns the judgment for costs, denied (Naylor v. Lane, 5 N.Y. Civ. Pro, 140). No costs.




OCTOBER, 1887.

$S 992, 995, 996, 999.

Trial-Refusal to postpone, when requires reversal of judgment

Where, in an action to recover damages for personal injuries received

by the plaintiff while an employee of the defendant while riding upon an elevator upon defendant's premises, it appeared by afidavit that the defendant expected to have the testimony of one P., who resided in New Jersey and was then the superintendent of defendant's factory; that said P. had stated to the men who were employed in said factory, including the plaintiff, that it was against the rules of the factory to ride on the elevator, and ordered the men not to ride thereon, and warned them against so doing; and it also appeared hy aftclavit of a physician that said P. was under said physician's care, suffering from

Obart o. Simmons Soap Company.

remittent fever ; that he had been threatened with pneumonia, and was not able to leave his house or resume hi usual occupation, and would not be for some time; and that if he was to leave his house and go to court to testify as a witness in the case, the exposure might bring on a relapse, but that he could safely do so in two or three weeks,-lleld, that an application upon such proof to adjoum the trial of the case was improperly denied ; and that, where such application was denied and an exception to the denial duly taken, a judgment rendered against the defendant, after a trial then bad, at which such witness was not present and examined, should be reversed and

a new trial ordered. (Decided October 27, 1887.)

Appeal by defendant from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes.

This action was commenced in June, 1885, and was brought to recover damages for personal injuries sustained by the plaintiff on May, 26, 1884, while employed by defendant as a laborer in its soap factory, in the city of New York, through the breaking of the rope by which an ele vator in defendant's said factory was hoisted, and the falling of such elevator while the plaintiff was riding therein. The action was tried at a circuit of the supreme court, held in the county of New York, on December 16 and 17, 1886, and a verdict was rendered in favor of the plaintiff for $2,000, upon which judgment was entered on December 22, 1886, from which judgment, and an order denying the defendant's motion for a new trial, this appeal was taken. On the case being called for trial, on December 16, 1886, the defendant moved to postpone the trial, on the ground of the absence of witnesses, and on said motion read the affidavit of one J. L. Seward, a physician, and the affidavit of A. D. Simmons, the president of the defendant. The affidavit of the physician, omitting title, venue, signature, and jurat, is as follows :-“ J. L. Seward, being duly sworn, deposes and says :

“I. That deponent is a physician, and resides in Orange,

Obart o. Simmons Soap Company.

in the State of New Jersey; that deponent is acquainted with John H. Pettinger, who resides at Orange aforesaid.

“II. That said petitioner has been under deponent's professional care during the last three weeks, suffering from remittent fever; and that he has been threatened with pneumonia; that he is not able to leave the house or to resume his usual occupation, and will not be for some time to come.

“III. That if said Pettinger were to leave his house at this time and to go to New York to testify in court as a witness in this case, the exposure might bring on a relapse with very serious results.

“ IV. Deponent further says that said Pettinger can safely attend court in about two or three weeks.??

The aflidavit of Simmons, the president of the de fendant, set forth that he was the president of the defendant, and “that this action is brought to recover damages for injuries alleged to have been sustained by the plaintiff, while an employee in the defendant's factory, by the breaking of the elevator-rope when the plaintiff was on the elevator, the same falling and injuring the plaintiff. The defense, among other things, is that the elevator was a freight, and not a passenger elevator, and it was a general rule in the factory that the men should not ride on the elevator, and that the plaintiff was notified of that rule and ordered not to ride on the elevator; that deponent has stated the defense in this action to Henry Stanton, the defendant's attorney, who resides at 43 West Twenty-sixth street, New York city, and depo nent is advised by said attorney, after such statement made as aforesaid, that the defendant has a good and substantial defense to this action upon the merits; that this action was tried in February last, before Mr. Justice LawRENCE and a jury, and resulted in a disagreement of the jury, the jury standing ten for the defendant and two for the plaintiff ; that John II. Pettinger, at the time of the action referred to, was the superintendent at the defend


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