Volume 1 — E.H. Smith

Appeal by the superintendent of insurance of the state of New York from order of the General Term of the Supreme Court in the first judicial department, made May 17, 1895, which affirmed an order of Special Term, directing said superintendent to transfer and pay over to the receiver of the American Steam Boiler Insurance Company the interest collected by him upon the securities deposited by the company for the protection of policyholders.

This action was brought to recover possession of certain savings bank books of deposit. The facts, so far as material, are stated in the opinion. The award of judgment to the defendant Davenport was error. (Young v. Young, 80 N. Y. 430; Beaver v. Beaver, 117 id. 421; 137 id. 59;, Mabie v. Bailey, 95 id. 206 ; Hamer v. Sidway, 124 id. 550; Conselyea v. Swift, 103 id. 231; Weber v. Weber, 9 Daly, 211; 58 How. Pr. 256; Clark v. Clark 108 Mass. 522;.

The action was brought to recover damages for a personal injury sustained by the plaintiff, alleged to have been caused by the defendant’s negligence. The facts, so far as material, are set forth in the opinion. The defendant is responsible for its negligence.

This is the second appeal to this court in this action. On the former appeal,* the judgment in favor of the plaintiff was reversed because of the refusal of the trial judge to instruct the jury that the defendant had established a justification of the charge in the article of November 22, 1886, imputing dishonesty and unfair dealing on the part of the plaintiff in presenting an unjust and exaggerated claim to the family of General Grant, for his services as undertaker on the…

Seaman, deceased. The appellants are the sole surviving trustees under the will of John B. Seaman, and the distributees of the remainder of the trust estate created by the sixth and seventh articles of the will. The facts,' so far as material, are stated in the opinion. The four remaindermen, who are now possessed of this estate, were all living when the testator died in 1876, and their rights in his estate vested at that time.

(Appeal from judgment of the court of oyer and terminer of the county of Renesselaer, entered upon a verdict convicting defendant of the crime of murder in the first degree'in killing one Robert Ross.

<p>1. Elections—Residence of Voter — Seminary Students. Under the provision of the Constitution of the state of New York (Art. 2, § 3), to the effect that for the purpose of voting a residence cannot he gained or lost by reason of presence or absence while a student of any seminary of learning, it is essential, to entitle a student whose legal residence has been previously elsewhere, to vote’ in the election district in which the seminary is situated, that the intent to change his legal residence he manifested by acts which are independent of his presence as a student in the new locality.</p> <p>2. Theological Students—Residence. The rule requiring proof of change of legal residence by acts independent of the presence of the student in the seminary, held, to be controlling in the determination of the right to registration, in the election district in which the seminary is situated, of certain students of the General Theological Seminary of the Episcopal Church, in New York city, living in one of the seminary buildings.</p>

This was an action to recover damages for fraud and deceit alleged to have been practiced by John P. Kennedy, by which plaintiffs claimed to have been induced to purchase certain bonds and stock of the Howe Machine Company from that company. The action was originally brought against John P. Kennedy He died before this appeal was taken, and his executor was substituted as defendant in his stead.

<p>1. Elevated Railroad — Abutting Property — Injunction. When the main relief sought in an action against an elevated railroad company is an injunction restraining the company from maintaining and operating its road in a street in Hew York city to the prejudice of the abutting property, the equitable nature of the action is not affected by the inclusion of a demand for past damages in the prayer for «judgment.</p> <p>2. Action for Injunction—Sale of Abutting Property—Reservation. When, on the trial of such an equitable action against an elevated railroad company, it appears, by proof of the plaintiff’s conveyance . of the fee of the abutting property to a third person, not a party to the action, that the legal title is no longer in the plaintiff or in any one before the court, the plaintiff is deprived of the right to relief by way of injunction against the company or of an award for damages to the property subsequent to his conveyance; and such deprivation of right to relief is not prevented by a reservation, in the conveyance from the plaintiff, of a right to the damages which had been or might thereafter be caused to the property because of the defendant elevated railroad, together with the right to use the grantee’s name, either in a release of the easements in the street to the railroad company, or in any suit against it.</p> <p>3. Damages — Waiver of Jury Trial. When, in such an action for an injunction with a prayer for damages, the defendant elevated railroad company has had knowledge of the plaintiff’s conveyance of the abutting property for a long period before the trial, but has taken no steps to obtain a trial upon the law side of the court, and has suffered the plaintiff to proceed and give evidence upon the trial at an Equity Term without objection, it may be deemed to have waived the right to go to a jury on the question of past damages sustained by the plaintiff up to the time of his conveyance of the property; and, under such circumstances, the trial court, having jurisdiction both in law and equity, may settle the litigation between the parties, so far as entitled to do so, by an award of the rental damage sustained by the plaintiff while holding the legal title to the premises.</p> <p>4. Damages. When, in such an action, the determination of the trial court on the question of the amount of damages sustained by the abutting property has been upheld by the Genegil Term, such determination should be left undisturbed on appeal if made without gross violation or abuse of principle.</p>

This was a proceeding to compel defendant, the clerk of Onondaga county, to make and file a search and furnish the Onondaga County Savings Bank with a certified copy thereof ■at and for the compensation prescribed by chapter 520 of the Laws of 1893. Further facts, so far as material, are stated in the opinion. An act ordinarily speaks as of the time when it goes into effect, not as of the time when it was passed by the legislature.

<p>1. Written Contract — Oral Evidence. Oral evidence is not admissible to explain or limit the meaning of the word " incompatibility,” when stated among the grounds for discharge provided in a written contract of employment.</p> <p>2. Master and Servant — Cause for Discharge. The proprietor of a newspaper, defendant in an action for damages for the alleged wrongful discharge of the plaintiff from employment as manager of the paper, sought to justify the discharge on the ground, among others, of the plaintiff’s refusal to deliver up a certain written memorandum, without date or signature, which the defendant had sent to the plaintiff, as his manager, in relation to endeavoring to obtain a contract for public printing. The plaintiff had told the defendant that he had destroyed the memorandum, but on differences arising between them it appeared that he had kept it, and he threatened the defendant that because of the memorandum he would not dare to discharge him. The trial judge charged that the plaintiff’s refusal to deliver the memorandum to his employer was a breach of duty and good cause for his discharge. Meld, that, in view of the circumstances, the charge was proper; that the memorandum was like any other order relating to current business, which, when it had served its purpose, belonged to the employer; that the plaintiff had no interest to protect in keeping it, and that consequently it did not come within the rule that an agent has the right to retain letters written to him by the master relating to his agency, which may be necessary for his protection.</p> <p>3. Master and Servant—Retention, after Breach of Duty. A master does not, by retaining a servant in his employ, after knowledge of breaches of duty, condone the offenses and prevent their use thereafter as grounds of discharge, where the breaches vrere committed from time to time, continuing until the discharge.</p>

Appeals by the plaintiffs and defendant Fay from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 14, 1894, which affirmed a judgment in favor of defendants entered upon a decision of the court dismissing the complaint upon the merits, on trial at Special Term.

<p>1. Real Estate — Trusts — Power oe Appointment—Court of Chancery — Lease of Infant’s Property—Renewals. In 1821, the owner in fee deeded certain lands to trustees, in trust to pay Hetty H. the rents and profits, and to convey the premises to such persons as she might by will appoint, and in default of such appointment then to all her lawful issue then living, as tenants in common. Hetty H. thereafter married one G., and in 1831 she and her husband brought an action in the Court of Chancery against their then living children and the trustees, in which it was decreed that the trustees might make leases of the premises for the term of twenty-one years, with covenants of renewal for successive terms, not exceeding three, of twenty-one years each, upon such conditions as the trustees should deem to the interest of Mrs. G. and her children. Thereupon the trustees, acting upon the authority of the decree, executed to one P. a lease for twenty-one years, in" which Mrs.' G. joined, with covenants for three renewals of twenty-one years each. In 1855 Mrs. G. died, leaving six children and a will, in which she exercised the power of appointment given by the trust deed, by directing the trustees to convey the premises to a trustee named, in trust to pay the profits of a sixth part thereof to each of her children, and upon the death of each child to convey the fee to its heir at law. There were two renewals of the lease, the last of which expired in 1894, and the successors of P., the original lessee, demanded a third renewal, being the last provided for by the decree, and an action was brought to obtain an adjudication as to . whether, as matter of law, they were entitled to such renewal, as against the estate of Mrs. G. Held, on demurrer to a complaint alleging the above facts, that the trust created by the deed being for the life of Mrs. G. terminated with her death, and the powers of the trustees were then at an end, except to convey the trust property as directed by the deed, and that they, therefore, had no power under the deed to renew leases or in the leases executed by them to provide for the renewals of leases after her death; but held further, that under the deed the infant children of Mrs. G. were conditional remaindermen; that they took the fee subject to the power of appointment by Mrs. G., and at that time had an interest which they, if adults, had the power- to lease; that being infants, the Court of Chancery could exercise that power for them (2 R. S. 194, §§ 170, 175), which it did by its decree, which decree showed that it was made in an action seeking leave to lease the real estate of infants, of the subject-matter of which action the Court of Chancery had jurisdiction and in which action the proper parties were before it; that upon the execution by Mrs. G., in her will, of the power of appointment given by the deed, her children were deprived of their interest as remaindermen, but were given another and different interest in the premises, which they took under her will and subject to all the burdens imposed by her, including the leases, in the execution of which she had joined, and which became binding upon her and her estate; and, consequently, that the tenants were entitled to the third renewal. ■</p>

The nature of the action and the facts, so _ far as material, are stated in the opinion.

, Appeal from judgment of the court 'of oyer and terminer of file county of New York, entered upon a verdict, convicting defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion. The complaint not only failed to allege, but the plaintiff wholly failed to establish, a cause of action either for moneys received by defendant in a ■fiduciary capacity and misappropriated by him or for moneys wrongfully withdrawn from said corporation and embezzled by him during the course of his employment as officer of such corporation.

This action was brought to recover the sum of $100,000, less a payment thereon of $25,000, with interest from the 26th day of February, 1889.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no proof that the trial would • involve the examination of a long account.

The nature of the action and the allegations of the complaint, so far as material, are set forth in the opinion. - None of the allegations stated in the complaint as to the actions of defendants Culver and Washington constitute a cause of action.

The nature of the action and the facts, so far as material, are stated in the opinion. The defense demurred to by plaintiff positively asserts that there is a defect of parties defendant, gives the names' of the parties who should have been joined as defendants, and states they are in the occupation and possession of the premises described in the complaint. The demurrer was improperly sustained. (Prosser v. Matthiessen, 26 Hun, 527; Code Civ.

The facts, so far as material, are stated in the opinion. There was no fraudulent transfer of the property of Kugelmann & Co. within the meaning of the Code of Civil Procedure, and the attachment should be vacated. (Code Civ.

<p>Stbeet Railboads — Application fob Commissionebs-—-Jubisdictian of Genebal Tebm — Constitution of 1894. The provision of section 18 of article 3 of the State Constitution of 1894, that when the consent of property owners to the construction of a street railroad cannot be obtained, “ the Appellate Division of the Supreme Court * * * may, upon application, appoint three commissioners,” was not intended to take effect on January 1, 1895 (Art. 15, § 1), but is intended to take effect on January 1, 1896, when the creation of the Appellate Division goes into effect (Art. 6, § 2), and until the latter date the General Terms of the Supreme Court continue to have the jurisdiction heretofore possessed by them to entertain such applications.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The contract passed title to ■all the ice to defendants. (1 Greenl. on Ev. 277; 13 N. Y. .566; Banger v. Waterbury, 25 Wkly.

The facts, so far as material, are stated in the opinion. The failure to secure the consent of the commissioner of public works to Patten’s first assignment did not render that assignment void.

The nature of the action and the facts, so far as material,, are stated in the opinion. The referee finds as a. conclusion of law that the defendant’s notice to plaintiff created a cloud on the title of the plaintiff’s property, and that, this action could he maintained as one to aid in the removal of such cloud. This is a material error, requiring the reversal of this judgment.

This action was brought to restrain the operation and maintenance by defendants of their elevated railroad in front of plaintiff’s premises, in Third avenue, New York city, and for the recovery of damages caused thereby. The plaintiff’s properties in suit were, at the time of the trial, Hos. 261, 1028, 1240, 1242, 1244, 1246, 1248 and 1255 Third avenue. The judgment was in the form usual in this class of actions.

This action was brought to restrain the operation and maintenance of defendants’ elevated railroad in front of plaintiff’s premises and to recover the damages caused thereby. The defendants’ elevated railroad was constructed in Third avenue, on which the premises in suit abut, during the years 1877 and 1878, and trains began running in the latter year.

the second judicial department, entered upon an order made December 1, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was brought to restrain the opei-ation and maintenance by defendant of its elevated railroad in front of plaintiffs’ premises, Ho. 799 Fulton street, in the city of Brooklyn, and for the recovery of damages caused thereby.

The action was brought upon a certificate of membership issued by the defendant, a mutual accident association, to recover the amount made payable, by the terms thereof, to the plaintiff, as beneficiary, upon the death of the member by accident. The facts, so far as material, are stated in the opinion. In civil proceedings a party may waive either statutory or constitutional rights.

The death occurred, and the action was commenced, in 1892. A statute will be construed as prospective and operating in futuro, unless the, intention of the legislature to. give to it a retroactive and retrospective effect is expressed in language clear and explicit. (People v. N. Y. C. R. R. Co., 24 N. Y. 485; Const.

Appeal by Rachel Purdy, claimant, from order of the General Term of the Supreme Court in the first judicial department, made March 15, 1895, which affirmed an order of the Special Term denying a motion to quash a writ of certiorari issued upon the application of the comptroller of the city of FTew York to review an award made to Rachel Purdy by commissioners of appraisal, appointed under Laws of 1893, chapter 537, as amended by Laws of 1894, chapter 567.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee’s denial of the motion to allow defendants to amend their answer was erroneous. (Code Civ. Pro. §§ 723, 1018.) The defendants having become the owners of all the land surrounding the fifty-foot strip, could, notwithstanding the nonacceptance by the public of the dedication, maintain an easement upon the whole of the strip. (Bank v. Nichols, 64.

<p>Return on Appeal —Motion for New Trial. The pendency of an appeal in the Court of Appeals is no bar to a motion in the court below for a new trial; hence, an order that the return be transmitted to the court below for use on such motion is unnecessary.</p>

The facts, so far as material, are1 stated in the opinion. If there be an element of doubt the purchaser at a judicial sale must be relieved from his contract.

The facts, so far as material, are stated in the opinion. A peremptory writ of mandamus should issue herein. (Laws of 1887, chap. 721, § 1; Laws of 1893, chap. 537; Laws of 1882, chap. 410, § 873.) Chapter 537 of the Laws of 1893 is remedial and should he liberally construed.

The nature of the action and the facts, so far as material, are stated in the opinion. ' The plaintiff’s cause of action is not barred by the former adjudication.

This action was brought to restrain the operation and maintenance of defendant’s elevated railroad in front of plaintiff’s premises, and to recover the damages caused thereby. The facts, so far as material, are stated in the opinion. The reservation of October 28 and December 11, 1884, together with the Lathrop suit, operated as an abandonment and extinguishment of the easements in question. (Galway v. El. R. Co., 128 N. Y. 149; Tallman v. El.

The nature of the action and the facts, so far as material, are stated in the opinion. An inchoate right of dower is not an estate or interest in real property. ( Witthaus v. Schakc, 105 N. Y. 332; Dunn v. Huether, 22 Civ. Pro. Rep. 118; Phelps v. Phelps, 75 Hun, 577; M. L. Ins.

<p>1. Shipping—Seaworthiness — Competent Pilot. While the provision óf section 4401 of the United States Revised Statutes, which requires’ coastwise sea-going steam vessels not sailing under register, except on the high sea, to be under the control of a pilot licensed by the steamboat inspectors, should be complied with, it cannot be said as matter of law that such a vessel, which requires the services of a competent pilot to render her seaworthy, is unseaworthy merely because her pilot is unlicensed, provided he is otherwise qualified.</p> <p>Reported below, 73 Hun, 218.</p>

The nature of the action and the facts, as stated by Mr. Justice Follett in connection with the opinion at General Term, are as follows : This action was brought for the recovery of damages resulting from the defendant’s refusal to execute a lease to the plaintiff.

. Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 15, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Circuit before the court without a jury. This action was brought to recover a balance claimed to be due under a contract.

The nature of the action and the facts, so far as material,, are stated in the opinion. The action was properly brought as an equity action. (Bosley v. N. M. Co., 123 N. Y. 550.) The bar of the Statute of Limitations, in actions like the present, is fixed and controlled solely by the statute o± Hew York relating thereto. (Code Civ. Pro. § 382, subd. 5; 3 & 4 Will. chap. 27, § 26; 2 Story’s Eq.

<p>1. Pleading—Becoyery — Variance. Where a cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised at the trial, or objection made to that course, the successful party will be deemed to have recovered upon the facts shown and not strictly upon his pleading.</p> <p>2. Complaint on Quantum Meruit—■ Becoyery on Contract, When a complaint presents a cause of action upon a quantum meruit, but the subsequent pleadings set forth a contract, and the facts applicable to either theory of the case are contained in the pleadings when read together, and the trial proceeds as if the plaintiff had counted on the contract and no question is raised by either party in regard to the form of the action, it is too late, after a recovery by the plaintiff upon the contract, for the defendant to raise upon appeal the point of a variance between the complaint and the recovery, but such point will he deemed to have been waived.</p> <p>3. Contract — Certificate of Work Done—Evidence, When a contract for work stipulates that the amount due the contractor shall be evidenced by a certificate of a civil engineer, such a certificate is not deprived of its effect as evidence in an action to recover the amount claimed by the contractor, merely by the fact that it was made after the commencement of the action, when the contract does not make such a certificate an indispensable condition of maintaining any action.</p> <p>4. Evidence—Paper Made with a View to Settlement of Controversy. It is too late to object on appeal that a paper, introduced in evidence by a successful party as the basis for the amount of his recovery, was inadmissible because made with a view to the settlement of the controversy, when no such question was raised at the trial, and, if it had been made then the successful party might have sustained that part of his case by other proof.</p>

This was- an action brought hy a taxpayer and resident of the county of Essex for the purpose of having certain proceedings of the hoard of supervisors of that county for the removal of the county seat declared illegal and void, and restraining the defendant from any official acts for submission of the question to the electors as illegal official acts and a waste of public funds.

. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 22, 1893, which affirmed a judgment in favor of plaintiff granting a perpetual injunction entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant never was in possession of the premises in question, and there is consequently no sufficient privity of estate to carry the covenants with the land. (Stanley v. K. U. Bank, 115 1ST. Y. 124; T. K. Bank v. Guenther, 123 TST.

<p>1. Criminal law—Indictment—Duplicity.</p> <p>An indictment, which alleges the forging of an indorsement with intent to defraud a certain person by offering it to him in payment for goods purchased, charges but one offense and contains only the plain and concise statement of the act constituting the crime, which the statute requires.</p> <p>2. Evidence—Forgery.</p> <p>Upon the trial of an indictment for uttering a forged check, evidence of other similar checks found upon tb- oerson of the defendant with the forged check counted upon, without any proof as to their handwriting or as to whether they were genuine or forged, is immaterial upon the question of intent.</p> <p>3. Appeal—Harmless error.</p> <p>The rule that an error, committed upon a trial, may be overlooked when the party complaining is not injured thereby, is applicable only in cases where the error could by no possibility have produced injury.</p>

<p>Fire Insurance — Manufacturing Establishment — Cessation of Operation. A mere temporary cessation of the operation of the machinery in a manufacturing establishment (as, e. g., a water-power saw mill) by reason of sickness, break down, low water or other unavoidable cause, ■without any intention on the part of the insured to cease operating or to allow the premises to become vacant or unoccupied, is not of itself to be deemed a violation of the provisions of a fire insurance policy avoiding it in case the establishment ceased to be operated for more than ten consecutive days, or became vacant or unoccupied, and so remained for ten days.</p>

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Granite — Conveyance oe Mineral Ores. Granite is not a mineral ore in either a popular or scientific sense, and does not pass under a conveyance of “mineral ores.”</p> <p>2. Deed oe Minerals — Meaning oe Words—Statements oe Parties. The interpretation of the words “minerals and ores” in a deed cannot he controlled in an action which is not brought to reform the deed but to determine the rights of the parties under the instrument as written, by testimony of the purpose of the grantees in acquiring the property, or of their statements made contemporaneously with the deed that they had. purchased the iron ore on the premises. •</p> <p>3. Usage—Meaning op Word “Minerals.” Evidence of certaim persons who lived or had property in the locality in which.mineral property was situated, that the word “minerals” in a conveyance of such property was'understood “ about there ” to mean iron ores, without proof that any transaction had taken place based upon such usage, or that such usage was known to either of the parties to the conveyance in which the word is used, will not be sufficient to establish a settled and recognized usage which will override the legal meaning of the word.</p> <p>4. Granite — Conveyance of Minerals. Granite is embraced in a reservation or grant of “minerals” in the absence of any qualification of the meaning of that word; but it will not pass by a grant of “ minerals and ores ” when these words are connected with a context which clearly .indicates that the parties had in view only such minerals as are to be got by-mining in the ordinary sense of that term, that is, by underground and not by open workings. Such is the case where a grant is made of “all the minerals and ores with the right to mine and remove the same; also, the right to sink shafts and sufficient surface to erect suitable buildings for machinery and other buildings necessary and usual in mining and raising ores; also, the right of ingress and egress for mining purposes and to make explorations for minerals and ores.”</p>

This action was brought to recover damages for the death of plaintiffs husband, alleged to have been caused by the negligence of defendant while he was in its employ. The facts, so far as material, are stated in the opinion.) The conductor and Wooden were co-employees, and for any negligence on the part of the former in the management of the train at Keating Summit the defendant is not liable. (Crispin v. Babbitt, 81 27. Y. 516; MoCosker v. R. R. Co., 84 27.

The nature of the action and the facts, so far as material, are stated in the opinion. It must be presumed that the judgment entered upon the report of the referee was not reversed, or the new trial granted upon a question of fact, since it does not appear in the body of the order that it was upon error of fact, as well as error of law. (Code Civ. Pro. § 1338; Whitman v. Foley, 125 N. Y. 651; Lewis v. Barton, 106 N. Y. TO; Whitney v. Martine, 88 N. Y.' 537; Keasbey v. B. 0.

This action is brought to recover damages for the death of plaintiff’s son from an explosion of gas in the building in which the plaintiff had an apartment, such explosion having occurred, as is alleged, by reason of the negligence of the defendants in permitting the gas to flow into the building without first properly testing the pipes. The answer denied any negligence on the part of the company, and set up as a further defense the contributory negligence of the deceased.

<p>Application op Railroad Bonds—-Purchase with Notice. In a suit in equity, brought by a plaintiff as a holder of bonds of a railroad company secured by a mortgage, on behalf of himself and other bondholders, on the refusal of the trustee to sue, to obtain redress for a breach ■of an alleged covenant in the mortgage to devote the bonds or their proceeds to the improvement of the mortgaged property and to enhance the •security of the mortgage lien, it appeared that the plaintiff purchased his bonds in the open market, after full inquiry, with knowledge of the situation and'how the bonds or their proceeds had been used, and that he did not act upon the faith of any statement in the mortgage, but upon his -own judgment. Held, upon the ground of the plaintiff’s relation to the litigation, that the action could not be maintained; but without expression ■of opinion upon the question whether, in the absence of notice to the plaintiff of the facts when he purchased the bonds, the action could or ■could not be maintained.</p> <p>But held also, that subsequent holders of bonds in good faith and without notice are not precluded from relief, on the ground that the first takers of the'bonds from the railroad company took with notice of the .actual transaction.</p>

This action was brought to foreclose a mortgage on certain lands in the city of Rochester, consisting of a tract of about sixteen acres, executed by James W. Stanley as trustee on the 23d day of November, 1888, to George R. Losey and others as security for a note of the mortgagor for the sum of $1,000, signed by him as trustee, and as a continuing security to the extent of $3,500 for further advances or responsibilities which might be made or incurred by the mortgagees for…

<p>1. Assignment for Benefit of Creditors — Purchase of Real Estate from Assignee. A general assignee for the benefit of creditors is competent to deal with the assets of the estate, under an assignment fraudulent and void upon its face; and a transfer of real estate, made by him at a public sale to a purchaser for a valuable consideration, will be upheld unless it shall appear that such purchaser had previous notice of the fraud of the assignor.</p> <p>2. Purchaser for a Valuable Consideration Without Notice. One who purchases real estate from an assignee for the benefit of creditors, under an assignment fraudulent and void upon its face, is “a purchaser for a valuable consideration ” within the meaning of 2 Revised' Statutes, 137, section 5, when it appears that at the time of the purchase and of the payment of the purchase money by him, he had no actual knowledge of any fact relating to any fraud in the assignment, or of any fraudulent intent on the part of the assignor; that he did not obtain actual knowledge of any such fact or intent until after he had received the deed from the assignee; that he paid a fair price for the property, and that he had not read or examined the assignment.</p> <p>3. Constructive Notice. Nor does the fact that the purchase was made at a general assignee’s sale, charge such purchaser with constructive notice of the fraudulent intent of the assignor, within the meaning of the statute above cited.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The action cannot be maintained because of the absence, as parties, of the other creditors of the- corporation.

Appeal by the purchaser at a foreclosure sale from order of the General Term of the Supreme Court, made May 11, 1895, which affirmed an order of the court at Special Term confirming the report of a referee appointed to take testimony as to the service of the summons and complaint upon the owner of the fee and requiring the appellant to take title.

The facts, so far as material, are stated in the opinion. The warrant of attachment is -void because of the failure to serve the summons as required by law. (Code Civ. Pro. § 638; Williams v. Van Valkenburgh, 16 How. Pr. 144.) The summons not having been served, nor publication commenced within the time required by law, the jurisdiction of the court ceased and the warrant of attachment was inoperative and void.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made September 12, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying defendant’s motion for a new trial.</p> <p>This is an action to recover damages for an alleged libel published by the defendant of and concerning the plaintiff.</p> <p>The publication was made by the defendant in the form of a circular which he procured to be printed and which he caused to be circulated among the citizens of Oneonta just prior to a charter election for trustees of the village. The plaintiff was an assessor of the village, and being an attorney at law had been frequently employed by the village authorities to attend to its law business and to defend suits brought against it to recover damages by reason of the alleged negligence of the village agents in caring for the streets. Judgments had been obtained against the village in some such suits. The following is the circular. Paragraphs two and eight are - the only ones which concern the plaintiff.</p> <p>“ How to Hake Business Good in Oneonta, H. Y. “Ho. 1. Oneonta, H. Y., February 1, 1890.</p> <p>“ 1st. Bond the town for $11,000 to build a bridge over the river.</p> <p>“ 2d. Hake Burr Hattice Attorney for the village so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village.</p> <p>“ 3d. Vote $1,000 every year for 31 electric lights.</p> <p>“1th. Pay the Water Company $30 each for 100 or more hydrants, for each and every year.</p> <p>“ 5th. Bond the village every year for $20,000.</p> <p>“ 6th. Yote to bond and pave.</p> <p>“ 7th. Have the trustees levy the full two per cent because the la/w allows it.</p> <p>“ 8th. Elect Burr Mattice and Henry Potter assessors to put up the valuation so that the trustees can rob the taxpayers on the two per cent levy.</p> <p>“ 9th. To please the trustees, vote all the special taxes you can over and above the two per cent that the charter permits.</p> <p>“ 10th. Mortgage the village with six fool trustees to throw away moneys extorted from the taxpayers.</p> <p>“ 11th. If any man has tliennanliood and courage to expose the weakness or rascality of the trustees, or any one in office, screen, conceal, cover up, divert the attention of the people from the wrongdoers, have him called a crank, a chronic growler, and ‘ ought to be despised by every man, woman and child in the village.’</p> <p>“And by the way, what Oneonta needs most at the jjresent time is one able, honest, independent newspaper, that will defend the poor mortgaged taxpayers of this village.</p> <p>“HEMET WlLOOX.”</p> <p>A verdict for plaintiff having been affirmed at the General Term, the defendant has appealed here, and his counsel now argues several propositions of law which it is claimed should be decided in defendant’s favor and which should secure a reversal of the judgment against him. Several of them are referred to in the following opinion.</p> <p>Whether the words set forth in the second paragraph of the circular referred to were libelous or not depended upon their construction and meaning, which were questions for the consideration and determination of the jury, and the trial court erred in stating to the jury that these words, upon their face, charged the plaintiff with professional incompetency and incapacity, and that the only question for them to determine upon this branch of the case was the question of damages. (Townshend on Libel [4th ed.'J, 486, § 284; Dollowap v. Turrill, 26 Wend. 383 ; Detterer v. Busily, 15 Penn. St. 466; JP. R. Co. v. McCurdy, 114 Penn. St. 554; Regina v. Bradlaugh, L. E. [3 Q. B. Div.] 607; Pinnock v. O'Neil, 63 Penn. St. 263 ; Gregory v. Atlcms, 42 Yt. 237; Rogers v. Cline, 56 Miss. 808; Doyleyv. Roberts, 3 Bing. [27. 0.] 835; Tomlinson v. Brittlébank, 1 H. & W. 573; Skinner v. Grant, 12 Yt. 456; Sibley v. Tomlins, 4 Tyrw. 90; Thompson v. Grimes, 5 Ind. 385; Mosher v. 20 27. E. Rep. 752; 27ewell on Slander, 628, § 38; Hemmens v. Nelson, 138 Í7. Y. 530 ; Walker v. T. Co., 29 Fed. Rep. 827; Van Veahten v. Hopkins, 5 Johns. 221; King v. Horne, Cowper, 184; People v. Croswell, 3 Johns. Cas. 360; Foot v. Brown, 8 Johns. 63 ; Dynde v. Johnson, 39 Hun, 16 ; Rorvnie v. Ryder, 8 27. Y. Supp. 5 ; Clarke v. Anderson, 11 27. Y. Supp. 729 ; Sanderson v. Caldwell, 45 27. Y. 398; Hayes v, YYF, 72 27. Y. 418; Cruikshank v. Gordon, 118 27. Y. 198; Wood/ruf v. Bradstreet, 116 27. Y. 217.) The trial court erred in submitting to the jury the question whether the words in the eighth paragraph of the circular were libelous. (Starkie on Libel, 482, § 446; 27ewell on Defamation, 629, § 39.) The publication was privileged as to both alleged charges, and the court should have so charged. {Hamilton v. Eno, 81 27. Y. 124; Klinok v. Colby, 46 27. Y. 427; Lewis v. Chapman, 16 27. Y. 369; Van Wyck v. Aspinv>all, 17 27. Y. 193; Ormsby v. Douglass, 37 27. Y. 479; Townsliend on Slander & Libel, 125, 249,429; Cooper v. Greely, 1 Den. 358.) The trial court erred in its charge to the jury that the first paragraph complained of, numbered 2 in the article, was undefended and unmitigated, and that some damage should be rendered for it, and that plaintiff was entitled to exemplary damages therefor. {Klinok v. Colby, 46 27. Y. 431; Hamilton v. Eno, 81 27. Y. 116; People v. Seaman, 6 27. Y. S. R. 765.) If the defendant wrote the article complained of without any malicious intention to injure the plaintiff, then inasmuch as the article dealt with matters of wide public importance, affecting the interest of the defendant and other taxpayers, the defendant had the right to criticise the acts and conduct of the plaintiff, and it was for the - jury to determine whether or not he had in the article complained of gone beyond the limitation of a proper criticism. {Ormsby v. Douglass, 37 27. Y. 479 ; 16 27. Y. 373; Starkie on Slander, 242, § 269; Lewis v. Chapmam, 16 H". Y. 375.) It was-error to exclude the testimony of the defendant in response to-the questions relating to the general opinion of the public as-to plaintiff’s official acts. (13 Am. & Eng. Ency. of Law, 440 Townshend on Slander & Libel, 256; Root v. King,. 7 Cow. 634; Blackingstaff v. Per?'in, 27 Ind. 527; Matson V. Buck, 5 Cow. 499; Ca/meron v. T. Assn., 27 ÍL Y.. S. R. 910; Dolevim, v. Wilder, 34 How. Pr. 488.) It was error to exclude questions bearing directly upon the good faith of defendant, and as to whether the publication was malicious or was based upon cause of complaint, either actual or supposed. (Cameron v. T. Assn., 27 1ST. Y. S. R. 910; Townshend on Slander, 256; Dolevim, v. Wilder, 34 How. Pr. 488.)</p> <p>The words set forth in the second paragraph of the circular-are clearly libelous per se, and the trial judge did not err in so holding. (Mattice v. Wilcox, 36 JST. Y. S. R. 914; 129 N. Y. 633; 71 Hun, 485; Moore v. Francis, 121 H. Y. 190 ; Samderson v. Caldwell, 45 H. Y. 398; Moore v. Bennett, 48-N. Y. 472; Carpenter v. Llammond, 1 1ST. Y. S. R. 551 Bergmann v. Jones, 94 N. Y. 51; Cramer v. Riggs, 17 Wend. 209; Croswell v. Weed, 25 Wend. 621; Fowles v. Bowen, 30 M". Y. 20; Pwdy v. R. P. Co., 26 Hun, 206; 4-Wait’s Act. & Def. 81; Gruikshamk v. Gordon, 28 H. Y. S. R. 784; Turton v. N. Y. Recorder, 144 H. Y. 144; Hunt v. Bennett, 19 H. Y. 173; Llolmes v. Jones, 121 27. Y. 461; Morey v. M. J. Assn., 123 H. Y. 207; Fidler v. Delevan, 20 Wend. 57; Pbo¡5 v. Brown, 8 Johns. 63 \ Lynde v. Johnson, 39 Hun, 16; Townshend on Slander [4th ed.], 12 ; Holt on Libel, 21; 1 Chitty Prae. 45;, Starkie on Slander, 89; Brooks v. Llarrison, 91 H. Y. 89.) The trial court properly submitted to the jury for its interpretation the charge contained in the eighth paragraph, and left it to-them to say whether the words used were injurious or innocent. (Sanderson v. Caldwell, 45 N. Y. 401; Brooks v. Ha/rrison, 91 H. Y. 83.) The trial court properly held as a matter of law that. the publication was not privileged. (Hamilton v. Fno, 8117. Y. 117; By am v. Collins, 111 N. Y. 143 ; Wood v. Wiman, 122 17. Y. 449; Hunt v. Bennett, 19 17. Y. 174; Sunderlin v. Bradstreet, 46 17. Y. 188; Taylor v. Church, 8 17. Y. 452 ; Weber v. Vincent, 29 17. Y. S. E. 603.) The trial court properly charged the jury that the paragraph relating to the plaintiff in his professional capacity as an attorney being libelous per se, and no justification having been pleaded, or attempted upon the trial, the jury should render some damage on account of it. (Taylor v. Church, 8 17. Y. 452; Samuels v. E. M. Assn., 9 Hun, 294; 75 17. Y. 604; Bergmann v. Jones, 94 17. Y. 51; Holmes v. Jones, 12117. Y. 461; Warner v. P. P. Co., 132 17. Y. 181; Marks v. P. P. Co., 47 17. Y. S. E. 775.) The paragraph charging plaintiff with incompetency as an attorney was entirely undefended. Hot a single fact was pleaded which would tend to justify or mitigate the libelous publication, and no evidence was given upon the trial tending to excuse, justify or mitigate it. (Townsliend on Libel [4th ed.], 604; Fry v. Bennett, 5 Sandf. 54; Knox v. Comal. Agency, 40 Hun, 508; Ball v. E. P. Co., 38 Hun, 11; Code Civ. Pro. § 536 ; Wa Alter v. Quenzer, 29 17. Y. 547; Hatfield v. Lasher, 81 17. Y. 246 ; LLamilton v. Fno, 81 17. Y. 116; Turton v. H. Y. P. Co., 144 H. Y. 149; Moore v. Francis, 121 H. Y. 207; Morey v. M. J. Assn., 144 17. Y. 148.)</p>

The plaintiff is the widow of George IT. Clark, who was a-son of George Clark. The father died in 1871, owning both real and jiersonal property, and leaving a will, which was duly proved. The defendant, Augusta Clark, is the widow of the testator. The questions presented by this appeal, and the facts connected therewith, are stated in the opinion.

<p>Trade Mark—Imitation or Wrapper. An action cannot be maintained to restrain, as an infringement of a trade mark, the use by another of wrappers or forms of packages similar to those used by the plaintiff, where it appears that the brands, marks and names displayed upon each are amply sufficient to distinguish them in the general market and that nothing has been imitated which could legally be appropriated as a trade mark.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in allowing the plaintiff’s counsel to commit the jury to believe his witness, although he was a criminal.

<p>1. Obstruction of Highways—Public Nuisance—Private Action. The obstruction of a public highway is an act which in law amounts to a public nuisance, and one who sustains a private and peculiar injury from such an act may maintain an action to abate it and recover the special damages by him sustained; and, provided the injury is substantial, the fact that other persons have also been injured by the act is no ground for a denial of the relief.</p> <p>2. Public, Action. When, however, the damage or injury caused by the obstruction of a public highway is common to the public and special to no one, redress must be obtained by some proceeding in behalf of the public and not by private action.</p> <p>3. Private Action. The facts—that a person, who was obliged to use a highway in winter for the purpose of drawing logs, was for several days compelled, on account of. an obstruction created by a fence, encroaching upon the highway, to take another and much longer route, to his pecuniary damage; that at other times he was obliged to clear the road from drifts of snow caused by the fence, which required time and labor, and that he has sustained damages special and peculiar to himself, growing out of the necessity on his part of using the road at the time of the obstruction more frequently than his neighbors — suffice to bring him within the principle which permits a private person to maintain an action to abate a public nuisance and to recover special damages.</p> <p>4. Remedy at Law — Objection Raised on Appeal. The defense of an adequate remedy at law, under the statute, to remove obstructions from a public highway, when not interposed by answer or raised at the trial, cannot be made available by an objection raised for the first time after judgment, in an action in equity brought by a private person to compel the removal of obstructions and for incidental damages, and is not-a good ground for reversing the judgment.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made April 11, 1895, which affirmed an order of the court at Special Term denying a motion made by one William D. Beclc, the appellant, who was not a party to the action, to set aside an order granted at Special Term directing a receiver in supplementary jiroceedings of the property of the defendant, John Bussing, the judgment debtor of the plaintiff, to sell certain real estate of which the appellant was then the owner.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order authorizing and directing the receiver to sell the real property in question of which the judgment debtor was seized of an unincumbered title in fee at the time of the appointment of the receiver,; was made without authority of law, for the reason that such property being subject to the lien of the judgments under which the receiver was appointed, and liable to be sold on execution upon the judgments, could not be taken summarily by the receiver, even by order of the court, and sold, and the proceeds applied in payment of a judgment recovered eighteen years previously, and which, at the expiration of ten years, ceased to be a lien upon or bind the real property, the title of the judgment debtor having meanwhile become vested in the appellant. {F. F. Bcmk v. Martvn, 49 Hun, 571; Bunn v. Daly, 24 Hun, 526; In re Inglehart, 1 Sheld. 514; A. O. F. Bank v. Gaynor, 67 How. Pr. 421; Pjkuger v. Cornell, 2 0. 0. Rep. 145 ; Tinkey v. Langdon, 13 Wkly. Dig. 385 ; V. M. Go. v. Wilkes, 30 N. T. Supp. 381; Goodm,an v. Stiles, 90 N. Y. 199; Moore v. Duffy, 74'Hun, 78.) The receiver in supplementary proceedings can have no greater authority over the real property of the .judgment debtor than that conferred by law upon the receiver under a judgment obtained by the same creditor in a judgment creditor’s action. (Driggs v. Williams, 15 Abb. Pr. 477; Duffy v. Dawson, 2 Itisc. Bep. 601; Allen v. Starring, 26 How. Pr. 57; Lynch v. Johnson, 48 N. Y. 33; Code Civ. Pro. §§ 1871-1879; Congelen v. Lee, 3 Edw. Ch. 304.) The judgment having ceased to be a- lien upon this real property, and the right to issue execution and enforce the collection of the judgment out of this property being barred by the provisions of the Code, and the title of the judgment debtor having become vested in the appellant, the court had no authority to order the appellant’s property to be sold to satisfy the judgment debt. (Code Civ. Pro. §§ 414, 1251. 1252; Ln re Harmon, 79 Hun, 226; Borst v. Corey, 15 N. Y. 505; Pumdle v. Allison, 34 N. Y. 180; In re Heilly, 94 N. Y. 382; DePew v. Deviey, 2 T. & C. 515 ; 56 N. Y. 67: I. <& T. W. Bank v. Quackenbush, 143 N. Y. 567.) The appellant’s standing as the grantee of the judgment debtor’s title was sufficiently established to entitle him to make the motion, and it is not affected by the claim made in the respondent’s papers that Benjamin Valentine never accepted of the deed from the executrix of the judgment debtor, and never instituted or authorized the institution of the partition action. (Moore v. Duffy, 74 Hun, 78 ; DuBois v. Cassidy, 75 N. Y. 298; A. Ins. Co. v. Oakley, 9 Paige, 486; Watrousv. Kearney, 11 Hun, 584; Vilas v. P. <& M. P. P. Co., 123 N. Y. 440; Wing v. Pionda, 125 N. Y. 678.)</p> <p>The appellant Beck has no standing in court to move to vacate the orders made herein. The judgment debtor is the only person who can avail himself of any irregularity in the appointment of a receiver, but in the case at bar no h’regularity exists. ( Underwood v. Sutcliffe, 10 Hun, 453; 77 N. Y. 58; Powell v. Waldron, 89 N. Y. 328 ; Wright v. Nostrand, 94 N. Y. 31; Narrow v. Riley, 5 Misc. Rep. 363; Stanley v. U. N. Bank, 115 N. Y. 122.) The title of the judgment debtor to the real property in question vested in the receiver on the 24th day of November, 1876, upon the recording, of the order of the receivership in the office of the clerk of Westchester county, under section 298 of the Code of Procedure and the corresponding section (2468) of the Code of Civil Procedure. {Nicoli v. Boyd, 90 N. Y. 516 ; Du Bois v. Cassidy, 75 N. Y. 298; Sayles v. Naylor, 5 N. Y. S. R. 816; Kinriball v. Burrill, 14 N. Y. S. R. 536 ; Webb v. Osborne, 27 N. Y. S. R. 792 ; Fredericks v. Nirer, 28 Hun, 417; V. M. Co. v. Wilkes, 30 N. Y. Snpp. 381.) Where all the parties are before the court, and the sale is to be made pursuant to its decree and by an officer appointed by it for that purpose, the right of redemption will not be allowed, except by command ■of the statutes. (Crisfield v. Murdock, 38 N. Y. S. R. 828.) The notice to creditors in the action of Valentine v. Valentine, to which the receiver was not a party, was a delusion -and insufficient to bar the receiver’s title to the real property. Such publication bars general liens only, and the receiver’s specific title is not affected by it. {Bar emus v. Bor emus, 66 Hun, 111.)</p>

Merritt. The material facts are stated in the opinion. The court had no power to award costs as in an action. (Code Civ. Pro. §§ 1015, 3236, 3251; Goncklmi v. Taylor, 68 M. Y. 221; Tishop v. Hendrick, 82 Hun, 324.) The referee awarded costs to all attorneys who appeared, whether their claims were successful or not. The costs to the respondent included the fees of the referee.

<p>Motion to open default in filing the return herein and permitting the filing of such return.</p>