(No. 5.) Form of a libel in rem for towage service by an incorporated company against a foreign vessel. To the Honorable Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New-York. The libel and complaint of the Hudson River Steamboat Company, (a corporation duly incorporated by and under the laws of the State of New Jersey), against the boat or barge Highlander, whereof D. E. Witherwax now is, or late was master, her tackle, apparel and furniture, and against all persons intervening for their interest therein, in a cause of contract, civil and maritime. And thereupon the said libellants allege and propound as follows: First. That these libellants are a corporation, duly incorporated by an act of the Legislature of the State of New Jersey, and at the time of the performance of the services mentioned in the second article of this libel, they were owners of the steamboat Cayuga, engaged in towing on the waters of the Hudson river. Second. That as these libellants are informed and believe, heretofore, to wit, between the eighteenth day of Septem rate articles. This has been recommended, and is sometimes adopted, as the best mode of the statement of a cause of action under our present system. It certainly enables the pleader to set forth his facts with greater precision and distinctness; and it enables the defendant, as will be seen in the precedents hereafter given, [see Nos. 9, 10 post,] to answer directly and seriatim each separate article or proposition. The form of a complaint under the Code, so constructed is given No 6 post; and of an answer to the same, No. 10. ber, 1854, and the seventeenth day of November, 1854, and on or about the dates mentioned in the account to this libel annexed, and marked schedule A., at the request of the master or agent in that behalf of said boat or barge Highlander, the said libellants, by their said steamboat Cayuga, towed the said boat or barge Highlander from the city of New-York to the city of Albany, and from the city of Albany to the city of New-York, as in said account mentioned and set forth. That under the agreement of the parties, or as a reasonable compensation for their services in that behalf, the said libellants are entitled to have and claim of said boat or barge Highlander, at the rates and the amounts charged in said account, besides interest. Third. That as these libellants are informed and believe, said boat or barge Highlander was a foreign vessel, owned by some person or persons resident out of the State of New-York, and that all of said services were performed for said boat or barge Highlander, and at the request of her master or agent in that behalf, and were to be performed, and were performed on the waters of the Hudson river, within the ebb and flow of the tide and the admiralty and maritime jurisdiction of this honorable court. Fourth. That although payment for the said services has been demanded of the master or agent of said boat or barge, they have hitherto neglected and refused to pay the same or any part thereof, and that there is justly due these libellants as aforesaid, the sum of one hundred dollars, besides interest. Fifth. That said boat or barge Highlander is now lying in the Port of New-York, and that all and singular the premises are true, &c., [as in preceding form.] Wherefore the libellants pray that process in due form of law, according to the course of courts of admiralty and of this honorable court in cases of admiralty and maritime jurisdiction may issue against the said barge or boat Highlander, her tackle, apparel and furniture, and that all persons having or pretending to have any right, title or interest therein may be cited to appear and answer, all and singular, the matters so propounded, and that this honorable court would be pleased to pronounce for the claim aforesaid, and to decree such other or further relief as the court is competent to give in the premises, and also to condemn said boat or barge Highlander, her tackle, apparel and furniture, and all persons intervening for their interest therein in costs. THE HUDSON RIVER STEAMBOAT CO., (No. 6.) Form of a pleading under the Code in an equitable action in which the allegations are set forth in separate paragraphs or articles. SUPERIOR COURT. James Moore, agt. The Hudson River Railroad Company and The Mayor, Aldermen and Commonalty of the city of New-York.' James Moore, plaintiff, complains: First. That he is the owner in fee of the lot on the I am indebted to DAVID DUDLEY FIELD, Esq., for this precedent. Mr. Field recommends in all cases the practice of stating the cause of action in separate paragraphs or articles, in accordance with the mode of pleading in admiralty. (See note, ante page 23.) southwest corner of Tenth avenue and Thirtieth street, in the city of New-York, on which he has erected a fourstory brick dwelling-house intended for a hotel. Second. That the Hudson River Railroad Company, a corporation created by the Legislature of this state, by an act entitled, "An Act to authorize the construction of a railroad from New-York to Albany," passed May 12th, 1846, and various acts amending the same, and keeping an office for the transaction of business within the city of New-York, have laid down their track through the Tenth avenue, from its southerly end to Thirtieth street, and thence around the said southwest corner, and in a line nearly direct to the intersection of Eleventh avenue and Thirty-first street. Third. That the said company have laid their track so near the said southwest corner, that when the cars pass, they project over the curb and sidewalk about eighteen inches. Fourth. That passing so near the corner is entirely unnecessary, and without any right on the part of the said company,1 and is a serious annoyance and damage to the plaintiff. Fifth. That in laying down their track, the said company were bound to keep as closely as possible to the middle of the street, and that they might have so laid it as that their cars would not overreach any part of the curb or sidewalk, but keep at a considerable distance therefrom, as they were under a legal obligation to do. 1 1 This is merely the allegation of a conclusion of law, which cannot properly be made in a pleading. (See Plead., pp. 355, 356.) 2 This is also a legal conclusion. The answer to the complaint, (see post p. 41.) takes issue upon these allegations, which is unnecessary, the issue so formed being entirely immaterial. (See Plead., pp. 739, 740.) Sixth. That the said company have been so running for two years and upwards, during which time they have been repeatedly applied to by the plaintiff to remove their track to a greater distance, and have often promised to do so, but have never yet done it. Seventh. That by reason of the said track being so near the corner, the plaintiff cannot obtain so great a rent for his said building as he might otherwise; and he is in other respects injured in the enjoyment and value of the property. Eighth. That the said track, lying so near the corner, with the running of cars thereon, is a private nuisance, specially injurious to the plaintiff, and to certain other persons having occasion to do business at his said house. Ninth. That the only permission or authority the defendants ever had to lay the track in the streets of the city of New-York, was that contained in the ordinance of the common council, of which a copy is hereto annexed, marked "A;" that in laying their track at the corner above mentioned, the defendants have not conformed to the said ordinance; and that on the 11th of August, 1851, the common council of the city of New-York, duly passed another ordinance, of which a copy is hereto annexed, marked "B," of which the defendants then and there had notice, but have hitherto refused to obey it, or change their said track. Wherefore, the plaintiff demands judgment, that the defendants remove their said track to a greater distance from the corner, and to the centre of the avenue, and that they pay the plaintiff the damage which he has sustained by its being where it now is, which the plaintiff claims to the amount of five thousand dollars. JAMES S. SLUYTER, |