Volume 1 — Howard's Practice Reports, New Series

On the 8d of February, 1885, Oscar J. Brown, the relator, an -attorney and counsellor-at-law, was assigned by the court of •oyer and terminer, then sitting in Onondaga county, to defend one Antonio Rego, who had been indicted at the same term for the crime of murder in the first degree. The relator began at •once to prepare the case for trial, and devoted, substantially, twenty days to that work.

<p>Motion for an extra allowance.</p>

<p>Undertaking on wrest— When sureties liable— Code of Civil Procedure, sections 549, 559, 1487.</p> <p>In an action against the sureties on an undertaking on arrest, where the nature of the cause of action and the right to the order of arrest are identical, commenced upon the vacating of the order of arrest, but before the termination of the action in which the order of arrest was granted:</p> <p>Held, that the sureties were not liable on the undertaking until judgment was rendered in the action for defendant.</p> <p>Also, held, that the undertaking carefully distinguishes between the cases where the right to arrest is identical with, and those where the right to arrest is extrinsic the cause of action; that in the one case the right to the order is determined by the fact that the plaintiff recovered judgment; in the other, the right to the order of arrest is determined upon motion, and if the vacated order is unreversed, it is a “ final decision that the plaintiff was not entitled to the order of arrest” (Schuyler agt. Englert, 14 Weekly Big., 571, followed).</p>

Action in the nature of a quo warranto to remove the defendant from the office of commissioner of police of the city of Buffalo.

<p>New York (city of) — Police relief fund— Constitutional law — Laws of 1885,-chapter 486, establishing a life insurance fund for police department is constitutional — Duty of treasurer of board of police commissioners to deduct two-dollars from the salary of each policeman.</p> <p>The general intent of the act (chapter 486, Laws of 1885) was to establish-a life insurance fund for the police department and, so far as this act relates to members of the police force, it is the duty of the treasurer of the board of police commissioners to deduct a sum equal to two dollars per month from the salary of each member of the police force, whether such deduction be assented to or not.</p> <p>Such deduction may be made in the case of each member or employee of the department, other than the said force, who shall desire to avail himself of the privileges and provisions of the act, and also in the ease of 'members of the Police Mutual Aid Association, who are in good standing and who shall desire to contribute to the said fund.</p> <p>Held, also, that the act in question is not unconstitutional, as depriving the-members of the police force of their property without due process of law, nor as being a local act and decreasing the allowance of a public officer during the term for which he was appointed.</p>

<p>Surrogates — Their jurisdiction to determine who are legatees, and to what sums they are entitled — Code of Civil Procedure, section 2743.</p> <p>The surrogate has jurisdiction, upon entering a decree for the judicial settlement of an executor’s account, to determine who are testator’s legatees, and to what sums they are respectively entitled and in spite of the limitations of section 3743 of the Code of Civil Procedure, he may exercise such jurisdiction in respect to legacies whose validity is disputed by the executor, and even in cases where such determination necessarily involves the construction of the testator’s will.</p>

Appeal from an order denying a motion made by the plaintiff to set aside the taxation of costs in favor of the defendant

<p>About December 10,1880, Talbot, Wilmarth & Go. obtained a warrant of attachment against the property of Harriet S. Briggs, under which the plaintiff, then sheriff of the city and county of New York, December 11, 1880, attached the stock fixtures, &c., in the store No. 140 Fulton street, New York city, where Mrs. Briggs had been carrying on business as tailor. The same day the attached property was claimed by George W. Galinger, as her assignee, for the benefit of creditors. Against this claim Talbot, Wilmarth & Go. gave the indemnity bond to the sheriff, upon which the present action is founded. Mrs. Briggs moved to vacate the attachment for irregularity, and by an order dated December 20, 1880, the motion was granted. This order, after signature but before entry, was exhibited by the assignee to the sheriff, but no copy appeal’s to have been served. From this order the creditors appealed; upon the appeal the general term, by order dated January.—, 1881, affirmed it.</p> <p>On December 24, 1880, the assignee commenced an action against the sheriff for the trespass in entering the store Ho. 140 Fulton street, December 11, 1880, and wrongfully taking possession of the attached property and converting the same to his own use. He also alleged demand of the property and refusal to return the same. This action was defended by the sheriff, the creditors’ attorneys giving directions and taking part in its conduct and trial. Upon the trial the assignee testified to the trespass and a demand December 11, 1880, and also to a demand after the vacation of the attachment. The court there ruled that the sheriff could not prove the fraudulent character of the assignee’s title, and also that if a demand were made after vacation of the attachment, nothing remained for the jury except to assess damages. The jury found for the assignee, and judgment was entered thereon against the sheriff. The present action is brought against the indemnitors to recover the amount of that judgment, and the expenses incurred in its defense.</p> <p>Pending that action Talbot, Wilmarth & Co. recovered judgment in the attachment suit against Mrs. Briggs, and the property in question was sold under execution thereon, and the proceeds paid to their attorneys, who had full knowledge of the source whence it came. Hpon the present trial the evidence was conflicting as to whether the assignee made any demand upon the sheriff; but it appeared that the creditors’ attorneys had tendered the property back to him, and he had refused it, and also that he had stated to the sheriff’s officer in charge of the writ that he would not receive it except upon certain conditions to be complied with by the creditors.</p> <p>The defendants here claimed that the omission of the sheriff to deliver the property to the assignee at once, upon the vacation of the attachment, released them from liability; and also that the alleged demand and refusal at that time were the foundation of the action against the sheriff, and that recovery was had against him solely upon that ground.</p>

It was brought to set aside a chattel mortgage given by Millard, Underwood & Co., to the defendants, on the 1st of December, 1875, as a security for $26,000 of acceptances made by defendants for the mortgagors; the chattle mortgage covered a large quantity of lumber and machinery and other property, and plaintiff .sought to compel defendants to account to the plaintiff as assignee for the property taken by them under said mortgage.

This action was brought to partition several houses and lots .in the city of Brooklyn, left by Dominick Colgan, the father of all the parties.

<p>Statutory arbitration —• Waiver of right to produce witnesses — Might of parties to appear and be heard before the umpire — When award a nullity and will be set aside as mid.</p> <p>Although a party may waive the right to be heard and to produce witnesses before arbitrators, such right will not be deemed to have been waived unless the waiver is clearly demonstrated.</p> <p>Even if a party waives his right to appear before the two original arbitrators, he is still entitled to appear and he heard before the umpire, and an award by the latter where a party has had no opportunity to appear before him is void.</p> <p>On a motion to vacate and set aside an award where it appeared that the umpire was not notified until the 28th of April, 1884, that he would be called upon to act. On the 29th of April, 1884, he accepted the position, and on the 30th of April, 1884, he made his award. The parties were not called before the umpire, nor were they heard before him and the arbitrators, lie took the statements which had been laid before the arbitrators and verbally settled the differences between such arbitrators, and gave his decision as umpire and made his award, which award was subsequently acquiesced in and agreed to by the arbitrators:</p> <p>Held, that the award should be vacated and set aside.</p>

On the trial the plaintiffs, for the puipose of showing the insolvency of the assignor, offered in evidence the general assignment of McGovern, which was admitted against the objection of the defendant.

<p>Motion by defendants to remove referee.</p>

<p>Motion to punish witness for contempt</p>

<p>Discovery— Of certain correspondence calculated to prove or disprove the defense so as to determine its legal effect before trial 'is not allowable.</p> <p>A plaintiff cannot compel the discovery of correspondence in possession of the defendant, for the mere purpose of ascertaining in advance of the trial, whether such correspondence proves a modification of contract pleaded by the defendant and relied on by him as a defense to the action.</p>

<p>Appeal — Practice— Code of CK-oil Procedure, section 22 — Libel—Evidence.</p> <p>Tie method of referring to parts of the complaint as “at” or “between” certain folios, however convenient and easy in the first instance, serves. no useful purpose upon appeal, nor does it conform to the spirit of the Code, which requires pleadings to be made out “ in words at length and not abbreviated” (Code of Oiv. Piv., sec. 22).</p> <p>When, by inadvertence, an answer has been drawn, referring to the original folios of the complaint, the appeal book should be so printed as to render the pleadings intelligible.</p> <p>In an action for defamation of character when general damages only are claimed, it is not competent for the plaintiff to show that, by reason of the defamatory matter, he was less esteemed by a particular person.</p> <p>A question is not competent, on cross-examination, which does not relate to any matter inquired into in chief.</p> <p>When the trial judge is dissatisfied with the verdict, and sets it aside for reasons which he deems sufficient; on appeal, the burden is on the apellant to show that the order appealed from was erroneous.</p>

<p>Non-resident clients— When defendant may require security fm' costs—When attorney liable for such costs — Residence — What constitutes— Code of Oiwl Procedure, sections 3268-3278.</p> <p>Mere presence in the state during business hours does not constitute residence, so as to relieve an attorney from his liability for costs, under section 3278 of the Code of Civil Procedure.</p> <p>It is no answer under this section that the attorney commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York.</p> <p>Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney’s liability.</p>

<p>Civil service laws — New York (city of) officers and employees of the aqueduct commission are local officers and subject to the civil service regulations of the city.</p> <p>Officers and employees of the aqueduct commission, created and appointed-under and by the provisions of chapter 490 of the Laws of 1883, are local, officers ; the functions they are to perform are for the peculiar corporate and pecuniary benefit of the corporation of the city; the corporation of the city of New York is liable for their acts; they are agents of the city and the act expressly recognizes the city’s liability upon their contracts.</p> <p>The appointees and employees of the aqueduct commissioners should be examined by the civil service boards of the city of New York as local city officers, and not by the state civil service commissioners as state-officers.</p>

An appeal from a judgment, entered upon a verdict in the plaintiff's favor, in an action of replevin for a span of horses.

The complaint set up as the first cause of action several acts of adultery; as the second cause of action various acts of cruelty, and demanded in her prayer for relief a judgment dissolving the marriage or else a separation from bed and board and provision for separate maintenance. To this complaint .defendant demurred on the ground of improper joinder of causes of action.

<p>Supplementary proceedings—Examination of third • persons — Receiver — When may he appointed—Code of Civil Procedure, sections 2141, 2146, 2147, 2464.</p> <p>A receiver may be appointed on the conclusion of the examination of a third person in supplementary proceedings, either before or after the return of the execution against the judgment debtor.</p>

This suit was to recover the damages to the plaintiff’s house, located in the city of Brooklyn, from an alleged negligent explosion in defendant’s oil works in the same neighborhood.

Thomas O’Hara, a merchant tailor, employed the plaintiff to labor in his shop at cutting garments, ior a year, at an' agreed price per week. While the parties were engaged in the performance of the contract, O’Hara died After his death, the plaintiff continued his labor for a few days, when the defendant, receiving letters testamentary, paid the plaintiff for all work done, discontinued the business, and refused to longer employ, or pay the plaintiff.

Action to recover damages occasioned by the defendants negligently running one of its locomotives against a horse and wagon of the plaintiff injuring the same. Other facts are stated in the opinion.

<p>Attorney’s lien on costs— Code of Civil Procedure, section 779.</p> <p>An attorney has a lien on motion costs ordered in favor of his client, and as equitable assignee thereof, which lien attaches the instant the costs are due.</p> <p>'Where an order was made at special term, on motion of counsel for defendant, “that an allowance of $500 is granted to the defendant against the plaintiff, as executor, together with the costs of this action, costs and allowance not to he paid by plaintiff personally”; and on defendant’s motion this order was reconsidered and reaffirmed and this decision was sustained by the general term, the defendant appealing to the court of appeals who dismissed the defendant’s appeal, with $116.02 costs to the plaintiff.</p> <p>Meld, that the costs allowed to this plaintiff are motion costs, and cannot be offset against any costs in the action due by the plaintiff to the defendant.. That the plaintiff cannot pay the defendant out of money which legally belongs to the plaintiff’s attorney, and that these costs are collectable from the defendant under section 779 of the Code of Civil Procedure.</p>

<p> Husband and wife—Business partnerships between them authorized. </p> <p>Husband and wife have the capacity to enter into a contract of copartnership for the purpose of carrying on a trade or business, and contracts made by such a firm are enforceable against the wife’s estate. This is adverse to Fairlee agt. Bloomingdale (67 How., 292).</p>

<p>Appeal from an order made at special term denying an. .application to set aside the taxation of the plaintiff’s costs and ■denying a motion made by the defendants for a direction to tax «costs in their favor.</p>

<p>Abatement—Bemval—Death of administrator pending proceedings for settlement of his account — Effect of — Code of Civil Procedure, sections 755, 765, 2006, 3347.</p> <p>Where pending proceedings for the judicial settlement of the account of an administrator, such administrator dies, the proceedings abate and cannot be revived against his legal representatives.</p> <p>By section 2606 of the Code of Civil Procedure, as amended in 1884, the surrogate can require an accounting from a representative of a deceased executor of administrator, just as he might require it from the deceased executor or administrator himself after the revocation of his letters. Therefore where an administrator dies pending proceedings for the settlement of his accounts, in a new proceeding, his legal representatives can be directed to render a full account of such administrator’s management of decedent’s estate.</p>

Action upon a promistory note. Defense that note was given for a patent right, which fact was not indicated upon the face of the note as required by the statute, and the note was •therefore void; the facts are all conceded; the only question is -whether the note is valid or void.

This suit was to recover for personal injuries received after the plaintiff, a man eighty-three years old and a passenger, had gotten down on the ground from defendant’s horse car, in consequence of the conductor’s holding on to his coat after starting the car, which precipitated the plaintiff to the pavement, breaking his hip. The defendant’s witnesses testified that he fell after the car had passed on, and after the conductor had ceased to hold on to him.

<p>Corporations — Voluntary dissolution of—When receiver may be appointed— Heport of referee in such, cases, what must contain — Code of Civil Procedure, sections 3426, 2429.</p> <p>The court has no power to appoint a receiver under proceedings for the voluntary dissolution of a corporation until the making of the final order dissolving the corportion.</p> <p>Section 2426 of the Code of Civil Procedure requires the report of the referee to contain “ a statement of the effects, credits and other property and of the debts and other engagements of the corporation and of all other matters pertaining to its affiairs :</p> <p>Held, that the requirement of the Cede is one of substance and not of form, and a failure to comply with it renders the final order void.</p>

<p> Injunction—Will not issue pendente lite in an action to try title to a public office. </p> <p>In an action in the nature of a quo warranto, an injunction will never he issued in this state pendente lite restraining the party in possession of the office from exercising the functions thereof.</p>

<p>Appeal from a judgment entered upon a verdict rendered 'by direction of tbe court in favor of tbe plaintiffs.</p>

<p>Female notaiñes — Bight to office cannot be tested m a collateral manner.</p> <p>A verification certified to by a female notary is valid as to third persons, and furnishes no ground for returning the pleadings. The parties to the record cannot test the eligibility of a female to hold office in any such collateral manner. The right can be tested only in a direct proceeding brought for the purpose in which the notary may defend her title.</p> <p>Whether a female may hold public office in this state, qwmre.</p>

After Adolph G-oldsmith had made an assignment for the benefit of creditors, W. and S. Blackington secured an attachment in a suit against him for $2,800, on the ground that the assignment was void. Motion is now made to vacate the attachment

The defendants, Cadenas & Coe., by a transaction had -with the plaintiff, Higuera, alone purchased, as they supposed, from-the firm of Juan E. Higuera & Company, 4,000 pounds of' “Picadura” tobacco. The plaintiff, Tynan, was unknown in the transaction. Before the defendants had paid for the tobacco* the plaintiff, Tynan, interposed a demand for its price and commenced an action against them demanding judgment therefor.

Motion on behalf of Edward A. Howell to modify and confirm, and on behalf of Owen D. Perry to set aside, the report of a referee,… Held: in effect, that the assignment covered individual property as well as the copartnership property remaining of each of said firms, and that the assets should be so marshaled according to the rule in equity as to apply the assets of each firm to the payment of its own debts and to apply the surplus according to the respective interests…

<p>Order of arrest—Not necessary that a complaint should he submitted to the court or justice as a condition to the granting of order—Oode of Civil Procedure, secs. 549, 550, 557.</p> <p>It is not necessary, as a condition to the granting of an order of arrest, pursuant to subdivision 4 of section 549 of the Oode of Civil Procedure, that a complaint should be submitted to the court or justice granting such order, nor that the contents of the complaint should be stated in .an affidavit, nor that any complaint should be in existence at the time such order is granted.</p> <p>An order of arrest may be granted under subdivision 4 of section 649, upon an affidavit setting forth facts, showing that a cause of action exists against the defendant under that subdivision, but the order must be vacated immediately upon the filing or service of the complaint, if a cause of action under the same subdivision is not therein set forth.</p>

<p>Motion for a new trial upon the judge’s minutes.</p>

<p>Appeal from an order vacating and setting aside a judgment in favor of the defendant, and the report of the referee upon which the same was entered.</p>

<p>False representations— When action founded upon fraud and deceit of defendant cannot be maintained —Justices’ courts —Discretion of justice as to allowing amendments—When improperly exercised.</p> <p>An action founded upon fraud and deceit of defendant cannot be maintained in the absence of proof that the defendant believed, or had reason to believe, at the time he made them, that the representations made by him were false, and for that reason fraudulently made, or unless it be shown that he assumed, or intended to convey the impression, that he had actual knowledge of their truth, though conscious that he had no ■ such knowledge.</p> <p>In an action in a justice’s court, during the progress of the trial and while the plaintiff was examining one of his witnesses, the defendant appeared before the justice by his attorney and asked to be permitted to answer and disprove the case as made by the plaintiff. The justice denied the request:</p> <p>Held, error; the discretion that is given to a court is a “ judicial discretion,” which must be exercised according to legal and just rules. It cannot be an arbitrary discretion to be exercised as the court shall arbitrarily decide, overriding the natural rights of a suitor and depriving one of his means of fairly meeting a claim urged against him.</p>

<p>Benevolent society — Designating beneficiary — Meaning of the term “legal heirs" — Bewcation by will.</p> <p>Solomon W. Kaiser joined the “Mutual Relief Association,” and designated “his legal heirs” as the beneficiaries of the death benefits, aggregating $1,000:</p> <p>Eeld, (1) that the designation was valid: (2) that the phrase “legal heirs” means next of kin or relatives by blood, and excludes the widow; (3) that the designation once legally made cannot be revoked by a new designation made by the last will of the deceased member, and (4) that under the designation originally made the brother and only legal heir oi the deceased was entitled'to take the fund to the exclusion of the widow, and notwithstanding the will.</p>

<p>Will — Bequest for masses valid.</p> <p>■ A testamentary provision for masses for the benefit of the testator’s soul is valid and should be upheld.</p>

<p>Sureties on appeal—Code of Procedure, sections 834,338—Liability of sureties on undertakings on appeal— Two separate undertakings admissible— Code of dril Procedure, section 1335.</p> <p>After two sureties, A. and B., had executed a joint and several undertaking under sections 334 and 338 of the old Code for a stay of proceedings on appeal, A. justified, hut when subsequently B. was examined, the justice before whom the examination took place filed a memorandum that he was not qualified, and that defendant in that action must produce another surety. Meantime, intermediate the filing of the memorandum and the entry of an order thereon, the defendant executed the undertakings upon which this action was brought, which were approved:</p> <p>Meld, that by the memorandum and order referred to, the justice approved of A. as one of the. sureties upon the undertakings; that it was not necessary that A. should join in the execution of the undertakings with defendant, and even if A. is not liable upon his undertaking, for want of a formal indorsement of approval upon it, the defendant should not he relieved from liability on his undertakings, which stayed plaintiñ’s proceedings.</p>

Appeals from two orders of judge Lawrence. First. Denying the defendant’s motion to compel the plaintiff to receive the defendant’s unverified answer. Second. Denying defendant’s motion to vacate a judgment, entered by the plaintiff upon application to the.clerk, without, notice to the defendants, required by section 1219 of the Coda First.

<p>Complaint — Sufficiency of, in an action for wrongful conversion — Code of Civil Procedure, section 1721.</p> <p>In an action to recover damages for tile wrongful conversion of certain bonds, a complaint alleging “that at a certain time this plaintiif, at request of defendant, delivered said bonds to defendant, as his agent, for the purpose and upon the agreement that the defendant would sell the same at a price satisfactory to the plaiutiil, the proceeds of sale, when due, to be immediately delivered to this plaintiff, and, if not sold, returned upon demand to this plaintiif; that, prior to the commencement of this action, plaintiif duly demanded from the defendant the return of said bonds, hut the defendant has refused to return said bonds, or any of them, to plaintiif, but has wrongfully converted the same to his own use to the damage of the plaintiif, &e.: ”</p> <p>Held, that the complaint contains every fact necessary to give to the plaintiff his right to relief. There is a sufficient allegation, that there has ■ been a proper demand, and a refusal on the part of the defendant:</p> <p>Held, further, that a wrongful conversion by the defendant of the property is sufficiently alleged:</p> <p>Held, also, that the allegation that the bonds were duly demanded from the defendant is, in effect, a statement of the fact that the plaintiif, in accordance with the contract, duly demanded the return of the bonds. And this allegation also negatives any idea that there had been a sale of the bonds by the defendant.</p>

Appeal by James M. Jackson from an order denying a motion made in his behalf to be discharged-from his obligation as purchaser of real estate sold under the judgment in this action.

<p>Motion for new trial on case and exceptions.</p>

<p>Appeal from a judgment of the defendant, entered upon a. verdict, and from an order denying a motion for a new trial</p>

<p>i Corporation — Complaint—In actions by or against corporations what must be averred— Cods of Civil Procedure, section 1775..</p> <p>, In an action against certain corporations where it was averred that the plaintiff is informed and believes that the said last named defendants respectively, except the said defendant the New York Newspaper Union were and .are foreign corporations, companies or associations, &c., but did not state under the laws of what state, country or government the said defendant was created. On demurrer;</p> <p>Held, that the qomplaint was bad as not stating the facts required to be stated by section 1775 of tbe Code of Civil Procedure, and that as it appeared by tbe complaint that certain defendants were foreign corporations tbe objection could be taken by demurrer.</p>

<p>Answer — Insufficient denial.</p> <p>A denial in an answer of each and every allegation not hereinafter specifically admitted, controverted or denied is insufficient.</p>

<p>Costs — What may he taxed on final judgment, when a parly has been allowed to amend his pleading upon payment of certain costs.</p> <p>When a party is allowed to amend his pleading upon payment of certain costs designated in the order as “costs,” his adversary is not deprived of his right to tax a full bill of costs if successful.</p> <p>The amount so paid was not intended to deprive either party of any costs which had accrued at the time of the entry of judgment.</p>

change the place of trial to Kings county. The ground of the motion was that the plaintiff was a non-resident and Kings •county was the proper county. JSTo demand was served.

<p>Rabeas corpus—Reaving before committing magistrate not to be reviewed upon — Evidence — Penal Oode, section 291 — Sufficiency of evidence to justify commitment under this section.,</p> <p>A female child, under fourteen years, who was committed by a police magistrate for violation of section 297 of the Penal Code, to an institution authorized by law to receive and take charge of minors, was discharged on writs of habeas corpus and certiorari by the judge issuing the writs, though the commitment was not claimed to be either informal or defective:</p> <p>Held, That .the judge issuing the writs could not, by means. of them, review the hearing had before the committing magistrate, and determine whether he had or had not acted upon sufficient evidence in making the order of commitment.</p> <p>Evidence taken in writing, subscribed and sworn to by the witness, that a certain female child “ actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms ” in a specified street, established all that was required to justify the commitment.</p>

<p>Injunction — Trespass—Bight of property owner to prevent, by injunction, ti'espassing on lands.</p> <p>A property owner has the absolute right to prevent, by injunction, unauthorized trespassing upon his lands.</p>

<p>Motion for a mandamus.</p>

<p>Code of Civil Procedure, section 1785 — When and by whom action to dissolve a corporation may be .brough t — Pleadin gs — Complaint—Answer—Sufficiency of allegation of insolvency.</p> <p>In an action to dissolve a corporation brought nnder the provisions of section 1785 of the Code of Civil Procedure, is not material whether the defendant is a manufacturing, &c., corporation or not, as the section refers to all corporations created by or under the laws of the state.</p> <p>When the dissolution is claimed by reason of the insolvency of the corporation and the complaint, in addition to an allegation that the defendant has been unable to meet its obligations, and that it has failed to pay a certain judgment, which the answer alleges has been paid, it alleges that the said defendant has not a dollar in its treasury, and is insolvent and has been for at least a year past, the answer not denying this allegation, Dut alleging payment of the judgment and averring that the said company has no liability to creditors by way of judgments unsatisfied;</p> <p>Held, that, on the pleadings the plaintiff is entitled to judgment.</p> <p>Insolvency means a general inability to answer in the course of business the liability existing and capable of being enforced. A corporation, like an individual, is insolvent when it is not able to pay its debts. It may be • insolvent although no judgments have heen recovered against it.</p>

<p>Appeal from an order discharging Wilhelmina Eck from the custody of appellant.</p>

<p>New York (city of)— Board of estimate and apportionment—Their power to transfer from one appropriation to that of another—Majority of hoard may decide.</p> <p>It is within the powers of the board of estimate and apportionment to transfer from an appropriation made to a certain department for one purpose, to another purpose in the same department.</p> <p>Where any number of persons are appointed to act judicially in a public matter, all must confer, hut a majority may decide.</p> <p>Therefore, where an act is authorized to be done by the board of estimate and apportionment, the ordinary rule of law applies, and a majority of the whole board, at a meeting of all the members thereof, can legally decide upon the propriety of doing such act.</p>

<p>Trespass — Responsibility of owner of cattle which hare been leased for a term of years, for the trespass of such cattle while in the custody of the lessee.</p> <p>' The owner of cattle leased them, together with her farm, for a term of years, for a money rent. The cattle, when in the possession of the lessee, committed trespass upon a neighbor’s lands. Action was brought for the damage done by the trespass against the owner of the cattle:</p> <p>..Held, that the owner was not liable for the damage done by the cattle while trespassing; that the owner, having lost the control and possession of the cattle, and not being able to gain possession or obtain control of the cattle, is not responsible for damage caused by them (Van Slyck agt. Snell, *6 Lans., 299, followed and distinguished).</p>

Motion to dismiss appeal upon the ground that appellant’s proceedings were stayed at the time this notice of appeal was served on respondent’s attorney. Appeal from order granting a new trial, granted May 3, 1884. Upon a motion by appellant to resettle this order on the 2d day of June, 1884, Mr. justice Macomber denied the motion for resettlement and- directed plaintiff to pay defendant ten dollars costs of this motion.

<p>Practice— Withholding proof—Effect of— Modification of judgment or order on appeal — Code of Civil Procedure, section 1317.</p> <p>The plaintiff brought this action to assert her title to dower in certain real estate owned in his lifetime by one Price. The defense was that her marriage with Price had been annulled because he had a wife living at the time his marriage with plaintiff was solemnized. A judgment for defendants, on the report of a referee, was reversed on appeal, and judgment directed for plaintiff. Defendants moved for a direction for a new trial, in place of such judgment, because upon another trial further proof could be made by a stipulation entered into in the action brought againt plaintiff for the decree nullifying their marriage, by Price, which would preclude her from recovering the dower in his real estate.</p> <p>Meld, that as this stipulation was known to the parties at the time of the trial, and had been relied unnn by way of answer and defense, but the proof was withheld simply because it was believed that the defense was well enough without it, it is too late to open the case again for further proof.</p>

This was an action brought by the plaintiff, as executor, under the last will and testament of Mary Gr. P. Binney, deceased, for a judgment directing a sale of a house and lot— No. 17 Madison avenue, in the city of New York — owned by the testatrix at the time of her death. The plaintiff asked that he might be empowered to deliver a deed to the purchaser, and that the proceeds of the sale might be distributed according to the provisions of the will.

<p>This appeal is taken by the defendant from a judgment against him, entered upon the report o| the referee, for the sum of $9,595.81. The action is brought by the plaintiffs, as executors under the last will and testament of James H. Sackett, deceased, upon a note of $5,000 and interest, made by the defendant on the 2d of March, 1874, to the said James H. Sackett The answer of the defendant admits that he made and gave the note sued upon to James H. Sackett at the time alleged in the complaint, but alleges that two years thereafter said James H. Sackett, who was the uncle of defendant, returned the note to him and made him a gift of the same. A paper produced on the trial by the plaintiffs, was alleged by them to be the note in suit, but defendant testified that the paper was merely a copy' of the note which he had made, and which was taken' from him by the plaintiffs. The testimony of various witnesses was offered on behalf of the defendant, to show that at various times the deceased, James H. Sackett, made statements, admissions and declarations, some of which tended to show that he was about to make a gift to his nephew, the defendant, of the amount of the note; others, again, that he had made such gift, and others, that, while he expected to collect interest upon the note, he never would demand the principal. It will be noticed that all this evidence 'is admissions against interest by the testator, whom the plaintiffs represent To meet and rebut these declarations of decedent against interest, the plaintiffs put on. the stand Mrs. Jane C. Bush, who testified that she had a conversation with the deceased, James H. Sackett, the Monday but one before his death. The deceased died on the 5th day of May, 1878; therefore this conversation offered in evidence must have occurred in the latter part of April, 1878; that is, four years after the making and giving of the note in suit. It must also be noted, that the conversation sought to be elicited by Mrs. Bush’s testimony, forms no part of any of the conversations testified to on behalf of the defendant; that it is not shown that the defendant was present at such conversation, or that the same was ever brought to his knowledge. The theory of the plaintiffs evidently is, that admissions against interest by the decedent, made at one time, will authorize the putting in evidence of declarations in his own favor made at another. Under the objection of defendant that the question called for self-serving declaration of the decedent, and that the conversation called for was not contemporaneous with the delivery of the note, the witness testified to declarations of deceased in his own favor, which if trae, would show that the evidence of defendant’s witnesses was entirely false; that the decedent held the note at the time of such conversation and expected to enforce it against defendant. The appellant respectfully urges that such evidence, which was of vital importance in the case, is entirely inadmissible. This appeal is taken upon the single ground that the improper admission of the declarations of deceased, through the witness Bush, and enough testimony is presented in the case to show upon what theory it was introduced by plaintiffs.</p> <p>made and argued the following points: 1. The declarations of the deceased, as testified to by the witness Bash, being self-serving and not contemporaneous with the transaction upon which .this action is brought, are inadmissible. “A- party’s self-serving declarations cannot be put in evidence in his own favor, whether he be living or dead, at the trial. Nor is the result changed by the statutes enabling a party to be called as a witness in his own behalf • That which he could prove by his own sworn statements he is not permitted to prove by statements which are unsworn. In any view, therefore, the extra judicial' self-serving declarations of a party are inadmissible for him with the exceptions hereinafter stated as evidence to prove his case” (2 Wharton Ev., sec. 1101). (The present case is not within any of the exceptions given by Wharton.) It does not seem necessary to cite many cases to prove these propositions, which are perfectly well established and familiar to the courts, but it may be of interest to trace the course of decisions in this state upon the subject “It is,” says Spencer, C. J., in the well-known case of Boseboom agt Billing-ton (17 Johns., 182), “ a fundamental principle that the private ex parte acts of an individual shall not be evidence for him unless those acts were in collision with his interests at the time. To admit evidence of the party’s own creating, I consider repugnant to every sound principle of law. Declarations by a party in his own favor never can be admitted ” (cited and followed in Wilson agt Pope, 37 Barb., 321, 324). And in a later case it. is said: “ The decisions, cited in 1 Cowen & Hill's Notes, pages-■ 600, 661 and 662, which seem to hold that the declarations of the alleged donor is evidence against the donee where there is a. doubt as to whether a gift has been established, conflicts with principles well established in this state, and should not be followed " {Woodruff agt. Cooh, 25 Barb., 505, 511). In Chase agt. Eioing (51 Barb., 597, 614), which is an action brought by the executor of a mortgagee to foreclose the mortgage, it was held that declarations of the testator proving that the indebtedness secured by the mortgage was a loan and not an advancement were inadmissible, and the court said at page 614: “ The convernations and declarations of the testator in favor of the executor in actions between him and third person are never allowable unless under some peculiar circumstances, forming an exception to the general rule. The evidence here offered was not within any exception. It was upon tbe main issue of tbe case, and clearly was incompetent evidence for tbe plaintiff. For tbis error alone tbe judgment should be reversed.” And it was held in Graves agt King (15 Hun, 867-370), a case on all fours with tbe case at bar, that in an action by an administrator to recover property of tbe deceased from persons claiming to own it by virtue of a gift from tbe. testator, declarations of tbe deceased inconsistent with such claim are not admissible in favor of tbe administrator. “ Tbe rule is well settled by abundant authority that tbe defendants in tbis action could have given tbe declarations of the deceased against tbe plaintiff in tbe action, and, on tbe other band, tbe general principle applicable to tbe character of tbe testimony offered is just as clearly settled against tbe admission of testimony in favor of tbe administrators ” (p. 370). Citing Chase agt. Ewing (51 Barb., 596), already referred to, and Brown agt Mailler (12 N. Y., 118). It will be seen that tbis case of Graves agt. King is directly in point. It is merely an application of tbe general principle that self-serving declarations are not admissible to tbe case of donor and donee. Tbis proposition is equally true whether tbe self-serving declarations of decedent are sought to be introduced in evidence in an action brought by bis representatives or brought against them. Tbe reason of tbe rule is exactly tbe same in both cases. Tbis clearly appears in a very recent case in tbis court In tbe case of Weller agt. Weller (4 Hun, 195-197), which was an action brought against an executor of a decedent, it was sought to introduce self-serving declarations of decedent’s to defeat tbe claim brought against tbe estate. Tbe court said: “Against this is tbe evidence of judge Sanders of declarations of tbe deceased at tbe time of making bis will, to tbe effect that be did not owe any one. * * * But tbe declarations of tbe deceased were not admissible in favor of bis estate, to show that be was not indebted to plaintiff. Tbe declarations of a party against bis interest are admissible upon tbe presumption that be would not speak to bis own injury unless it were true; but he cannot make evidence by declarations in bis own interest. Tbe defendants represent tbe deceased, and they can prove no declarations of bis which be could not.” Tbe authorities on this point can be multiplied almost indefinitely were it necessary, but tbe above are sufficient to show tbe -course of decisions in this state. They are in accordance with tbe universally accepted rules of evidence and of all standard text books. Distinguish tbe case of Howell agt. Taylár (11 Hun, 214), of which an examination will show that tbe declarations sought to be introduced were against tbe interest of tbe testator. 2. Tbe declarations of James H. Saekett, on bis own behalf, were not contemporaneous with tbe transaction, and • were therefore inadmissible. This transaction was tbe giving of the note by James W. Saekett, 2d day of March, 1874. And further, it not only was no part of tbe transaction itself, the giving of tbe note, but it has no connection in time or place with any of tbe conversations or declarations against interest of decedent introduced on behalf of defendant Tbe entire transaction, giving it its widest possible range, could only have covered a period from tbe making and giving of tbe note by James "W. Saekett, to tbe time of tbe alleged gift of tbe note back to defendant, which was sometime in 1876, aim oat, two years before tbe declarations put in evidence were made by tbe decedent So that not only is tbe objection that they were self-serving fatal, but also tbe further objection that they were too remote, and formed no part of tbe transaction. What declarations form part of tbe res gestee and what do not is clearly stated in tbe very recent case of Waldele agt N. Y. G. B. B. Co. (95 H Y, 274), where tbe old rule is reiterated that declarations which are a narrative of a past transaction are not admissible (see page 278 of that case). 3. Tbe declarations of James H. Saekett in bis own favor cannot be introduced to rebut other .declarations made by him against interest at other times and placea Assuming that deceased did, shortly before his death, make these declarations to the witness B ush in his own favor, they in no way tend to show that he had not made other contrary declarations against interest at other times and places. In fact, they have no bearing whatever upon the question. And whether or not the' decedent made a gift of the note back to defendant in 1876, or said that he intended to do so, or had done so, could not be effected by declarations made by him in 1878, that he still held the note. See case of Sweet agt. Northrup {Gen. Term, Third Depart., 12 Week Dig., 377), where it was held that if a deed were originally intended as a gift no subsequent declarations of the grantor could change it to an advancement. To the same effect is the well-known case of Ogden agt Peters (15 Barb., 560). In a Massachusetts case, which is authority, and has been repeatedly cited and approved, the case of Hunt agt. Boylance (11 Gush., 117; 59 Am. Dec., 140) the rule as to the effect of these declarations is well laid down. The court said: “The single question at issue between the parties to these actions was whether one B. H. Strobridge, one of the defendants, was a co-partner with the other two defendants, Briggs and Boylance, at the time the notes declared on were given and signed with the names of Boylance, Briggs & Co. To maintain the issue on their part, the plaintiffs offered in evidence the declarations of said Strobridge made on several different occasions to two clerks in the employment of the firm. For the purpose of rebutting and controlling this evidence, the defendant Strobridge offered evidence to prove his declarations on the subject of the partnership and his connection, made on other occasions than those testified to on behalf of the plaintiffs, and when neither plaintiffs nor witnesses were present These admissions were objected to by the plaintiff, but were admitted, and this forms one of the principal grounds of the exceptions in the present case. It seems to us that this evidence was incompetent on the familiar principle that a party cannot prove his own declarations in support of his own case. The defendant had a right to prove any statements of his own which made a part of those offered in evidence by the plaintiff. He could explain and contradict any conversation or declaration which had been first proved against him-by the plaintiffs, because such evidence tended directly and-legitimately to control the -case made out against him by the plaintiffs, but beyond this he could not .go. His own admissions, not offered in evidence against him, had no legal tendency to control the case proved by the other side. To show a man denied being a member of a copartnership to A. to-day does not prove nor in any way tend to show that he did not admit he was a member of the firm to B. yesterday. It is simply an admission in his own favor, having ,no bearing on the admission proved against him ” (59 Am. Dec., 141). 4. For the .reason above given, the judgment in this action should be reversed, and as it has been once before tried, and the first judgment reversed, the appellant asks that this present judgment be reversed and a new trial granted, with costs;</p> <p>argued that the first ground of objection to the question put to Jane C. Bush — that it called for a self-serving declaration— is not good, because defendant had been allowed under plaintiffs’ objection, both as to competency and relevancy, to introduce testimony of his father and mother and other relatives, of the same James IT Sackett’s declarations “ without number,” for a period commencing before the existence of the note and continuing until his death. And many of those declarations were, that he 'would give, or was going to give, defendant $5,000 of stock of goods; others that he had given the $5,000 out of his stock of goods (notwithstanding defendant concedes that his uncle never gave him the $5,000 of stock, but sold the stock and took the $5,000 note with three other notes for the whole i other declarations that‘‘ he” (James H..Sackett) “ never intended to collect it ” — “ did not intend to collect the principal ” — did hot expect to have it paid ” — ‘(did not intend to trouble or dis.tress Jimmie for it; it was a gift ” (all parol evidence to vary a ■written contract). And it would be monstrous, that plaintiffs could not rebut the testimony of these declarations — incompetent evidence themselves, and “without number” — by testimony of a single declaration of the same party, in the same period, relative to the same thing; i. e., his intention concerning the note. In Nesbit agt Stringer (2 Nuer, 26), it was held, that where a defendant’s liability is sought to be proved by inference from circumstances and from his verbal declarations and admissions, he is entitled to demand that all the circumstances and all his conversations relating to the subject-matter should be taken into consideration, even though some of the conversations took place on different days. And in this case the court said: “ The law is not so imperfect, in its administration of justice, as to give the plaintiff the chances of yesterday’s uncertainty, and deprive the defendant of the benefit of to-day’s explanation. And where the attempt is to fasten a contract on a party for a losing undertaking by inference from circumstances and conversations, he has a right to ask, at least, that all the circumstances and all the conversations relating to the matter should be taken into consideration.” The second ground of defendant’s objection; i. a, that the evidence called for was not contemporaneous with the giving of the note, is not good, for the reason that the evidence called for was contemporaneous with alleged declarations of James II, Sackett, testified by defendant’s witnesses, thereby sought to be rebutted, which declarations, testified for defendant, were neither contemporaneous witii the giving of the note or its pretended surrender or gift to defendant, but extended to the life-time of James H. Sackett, two years later than such supposed surrender or gift of the note to defendant. The judgment should be affirmed with costs.</p>

<p>Costs— When official assignee required to give security for— Code of Civil . Procedure, sections 3268-3271.</p> <p>Where an official assignee of a debtor sues upon a cause of action arising “before the assignment,” he may be required by the defendant as of right to give security for costs.</p>

<p>Statute of Limitations — When statute begi7is to 7'un in favor of a debtor wTio comes into the state under an assumed name —Code of Oivil Procedure, section 401.</p> <p>The Statute of Limitations will not run in favor of a debtor who comes into the state under an assumed name and continues therein under such assumed name, with the intent to conceal himself from his creditors until the creditor acquires knowledge of the debtor’s presence within the State.</p>

<p> Attachment—What must be shown by junior attaching creditor on motion to vacate a prior attachment. </p> <p>To sustain an application of one claiming a lien as a junior attaching creditor to vacate a prior attachment, it is necessary for him to establish by legal evidence a subsequent valid levy under his attachment upon the same property covered by the prior attachment.</p> <p>- Where, upon such an application, an affidavit is made by the managing clerk in the office of the attorney for the junior attaching creditor, in which affidavit such clerk, referring to the levying of the prior attachment, states that thereafter, on the 3d day of December, 1884, an attachment was issued in the second action against the property of said defendant to said sheriff, through his deputy, levied on the 3d day of December, 1884, upon the same property theretofore levied upon by him under the attachment in the first action, “ as I am informed and verily believe.” He then goes on to state that the facts herein recited were obtained from Thomas Brady, the deputy sheriff having charge of and who made said levies, and that the reason why an affidavit is not produced from said deputy is that while he admitted that the statements regarding the facts recited herein are true he is unwilling to make the affidavit:</p> <p>Held, that this affidavit is insufficient to show that the junior attaching creditor has a good and valid lien upon the property attached, enabling him to attack and vacate the attachment issued in the former suit.</p>

<p>Bemoml of cause— OitizensJtip— Time of removal — What constitutes a trial in. the state court.</p> <p>A foreign citizen or subject remains such until naturalization is complete,, according to the laws of congress, although, by the state laws he might vote or hold office after the mere declaration of intention to become a citizen.</p> <p>In a case otherwise within the removal act of 1875, it .is the right of the • defendant to remove the cause at anytime “before the trial thereof.” This means, before any step is taken in the actual trial of the cause, such as the empaneling of "the jury, &c.</p> <p>Tobar the right to removal, “it must appear that the trial had actually begun, and was in progress in the orderly course of proceedings when the application was made. No mere attempt of one party to get himself ' on the record as having begun the trial will be enough. The case must be actually on trial by the court, all parties acting in good faith, before ■ the right of removal is gone.”</p> <p>Where, as in this case, the right to try the case at all was challenged by the • defendants as soon as it was called on the day calendar and, on hearing these objections, all further proceedings in the cause were suspended until that preliminary question was determined, and in order to determine it the cause was sent into another part'óf the court.</p> <p>Held, that the trial had not actually begun, and that the cause was not even.in a condition to be tried, and the right of removal still remained.</p>

, of James Moffat, deceased, for tbe information of tbe court, and from an order ■ denying tbe defendant’s motion to open or modify tbe first mentioned order.

<p>Marrried women—Liability of—Sow judgment to he rendered, against— Code of Oiril Procedure, sections 450-1206.</p> <p>It was the intention of the legislature, evinced by sections 450 and 1206 of. the Code of Civil Procedure, that proceedings to enforce a liability of. a married woman shall be the same as if she was unmarried, and that all distinctions between a feme sole and a, feme corert as to the form of the judgment to be entered is abolished.</p> <p>The judgment in an action against a married women, by section 1206 of the Code, is to be rendered and enforced as if she was single.</p> <p>In a suit against a married woman upon her promissory note, in which, she charged her separate estate with the payment thereof, the plaintiff is entitled to a simple money judgment only.</p>

<p>Attachment—Acts which amount to fraud—When statements made to mercantile agency fraudulent — Motion to vacate attachment, how must be made — When may be opposed by new proofs—Code of Civil Procedure, section 683 — Unlawful appropriation of firm assets which entitle creditors to an attachment.</p> <p>Where an attachment was granted upon an allegation that defendants were indebted to plaintiffs for the price of goods sold and delivered, and that defendants had assigned, disposed of and secreted their property, with intent to defraud their creditors, and defendants controverted these grounds by averring that the goods had been sold upon a credit which had not expired, it was competent for plaintiffs to establish by answering affidavits the existence of the indebtedness by showing that the purchase-price had become due because the debt had been fraudulently contracted.</p> <p>Where it appeared that defendants, in June, represented to a mercantile agency that they had a surplus of over §101,000 over their liabilities of §65,000, on which statement, which had been communicated to plaintiffs, they relied in the sale and delivery of the goods, and defendants, in November following, made an assignment for the benefit of creditors, whereby it appeared they were then §75,000 in debt over and above their assets, and they could not by their books account for the difference.</p> <p>Held, that defendants must be presumed to have known that their statement to the agency was untruthful in the extreme, and that a credit obtained in that manner was fraudulent and not binding upon the creditors, who were entitled to commence their action at once.</p> <p>Where it appeared that, before the general assignment by defendants, they had appropriated —notwithstanding their indebtedness of §75,000 beyond their assets — a large sum for the payment of individual debts and for the support of themselves and their families, unless by means of their assignment they could secure an adjustment of their debts with their creditors at forty cents on the dollar:</p> <p>Held, that this was an unlawful appropriation of the firm’s assets; and though defendants may not have thereby positively intended to defraud their creditors, plaintiffs were entitled to an attachment against their property for the reason that they had disposed of a portion of it at least, with the intent to defraud their creditors.</p> <p>Plaintiffs had a right to disaffirm the last of a series of sales of goods when they discovered that the goods had been, fraudulently obtained, without affecting their right to maintain an action for the recovery of the debt owing for the goods previously sold.</p>

<p>Motion to vacate an attachment against an alleged nonresident.</p>

Appeals from orders denying motions to vacate attachment, judgment, execution and levy, and for liberty to renew motions. Judgment having, been entered by default on the sheriffs certificate of service of summons, and execution issued and levy made, defendant then moved to vacate all proceedings, on the ground that the summons had not been served on him.

<p>Divorce — Summons—Service by publication — Code of Civil Procedure, sectioni 438, 439, 440 — When affidavit to obtain order insufficient</p> <p>Under sections 438,439 and 440 of the Code of Civil Procedure, in an action for divorce, for the purpose of obtaining an order to serve summons by publication, it is necessary for the plaintiff to show that he has been or will be unable, with due diligence, to make personal service of the summons.</p> <p>Where the affidavit of the deputy sheriff only showed, of his own knowledge, that he went to the house where defendant resided with her mother and found it locked, the rest of his affidavit being only report or hearsay or conclusions:</p> <p>Held, not sufficient to warrant an order for publication of the summons.</p> <p>Held, also, that an appearance and answer by the guardian ad litem, was not a waiver ot any defects in the service of the summons.</p>

<p>Costs, upon a motion for a new trial, upon the grounds of surprise and, newly ~ discovered evidence — Code of Civil Procedure, section 3351.</p> <p>A motion for a new trial upon the grounds of surprise and newly discovered evidence, is not a motion on a case within the meaning of that term, as employed in section 3251 of the Code of Civil Procedure, so as to-entitle a party to tax as costs the same sums as upon an appeal.</p> <p>Although it is the proper practice on such a motion to settle a case, yet the whole office of the case is to enable the court, by an inspection of the same, to ascertain whether the alleged newly discovered evidence, as disclosed by the affidavits, is cumulative. The motion is made upon the affidavits; no recourse being had to the case, except for the purpose indicated, whilst a motion for a new trial on a case, by the very terms employed, imports a motion based wholly upon the record of the proceedings on the trial, and for some error in which a new trial is sought.</p> <p>In case of an appeal from a judgment and order denying a motion for a new trial, the successful party would be entitled to the costs in controversy, viz.: sixty dollars costs of motion, and ten dollars for making amendments to case, but not otherwise.</p>

This action was brought against the defendants as two of the three trustees of the Pyrolusite Manganese Company to recover a debt of the corporation by reason of the failure of the trustees to file an annual report. The defendant Dodge demurred on the ground that the third trustee was not joined; but the court, in special term, overruled the demurrer as it did not appear that the third trustee existed and was within the jurisdiction of the court (The case was reported 65 How.

<p>Attachment — When may be issued — Code of Civil Procedure, sections 635, 3343.</p> <p>In an action to recover the purchase price of goods sold and delivered, an attachment may issue and will be sustained, notwithstanding that it is alleged in the complaint, and also stated in the affidavits, that fraudulent representations were made concerning the financial condition of the business by which the plaintiffs were induced to sell and deliver the goods.</p> <p>The case of Witinen agt. Von Minden, 37 Sun, 334, commented on and explained.</p> <p>Copies of affidavits made and filed in another action against the same defendants, brought by another plaintiff, may be used to sustain an attachment, where an inability to obtain affidavits in the action from persons • whose affidavits were made in the other suit is shown.</p>

Motion by the defendant for a new trial, founded on exceptions taken to rulings on the trial, and also upon the ground that the damages are excessive'. The verdict was for $20,000,

<p>Executor's commissions— What to be allowed and how computed.</p> <p>Commissions for the receiving and the paying out of moneys may justly be claimed by executors, guardians, trustees, &c., who have received and paid out assets never actually converted into money.</p> <p>An accounting executor, guardian, trustee, &c., may lawfully be granted commissions for receiving such property, even when the property so received remains in his hands precisely as it reached them.</p> <p>In computing commissions upon sureties which formed a part of an estate when it came into the hands of the executors — which have since been retained by them in the exercise of the discretionary authority given them by the testator’s bill, and which they are about to pass over to the trustees; the market value of such securities at the time they came into the hands of the executors must be taken as the basis for the one-half "receiving” commissions, and the one-half commissions for “ paying out,” must be computed upon the value of those securities at the time the decree shall be entered upon the accounting.</p>

The bank for savings had on deposit to the credit of “ Mary Cronin and husband, Joseph, or either,” the sum of $747.98. The plaintiff brought an action against the bank, claiming the entire deposit, and the bank moved for and obtained an order interpleading in its place the present defendant, on the ground that he also made claim to the same fund (Mulcahy agt. Emigrant Industrial Savings Bank, 89 N.. Y, 435).

<p>Justice’s court— Costs and jurisdiction— Costs when the mutual demand of loth parties exceed §100, and in which it is said a justice’s court has no jurisdiction.</p> <p>Where an action is brought in the city court of New York, and the plaintiff fails to recover over fifty dollars by reason of the allowance of a counter-claim pleaded and growing out of the same transaction alleged in the complaint, the defendant is entitled to costs.</p>

<p>' Order of arrest — •Undertaking on— When sureties liable— Code of Oiml Procedure, sections 549-559.</p> <p>' Where-an order of-arrest is obtained in an action where the cause of action and cause of arrest are identical, and the order of arrest is vacated on motion, and the plaintiff on the trial withdraws by stipulation the allegations of fraud'from the complaint.</p> <p>. Weld, that the order vacating the order of arrest became the final decision > that the. plaintiff .in said action was not entitled to the order of arrest, and an action was maintainable upon the undertaking for damages sus- . tained by. reason of -the arrest.</p>

<p>Attachment—Application to vacate—On what papers it map le made and opposed— Code of Civil Procedure, section 683.</p> <p>Upon a motion, founded on the papers upon which an attachment was granted, to vacate such attachment, the justice presiding permitted an affidavit made several days after the attachment to he filed nunc pro tunc, as of the prior date, and to be read in support of the process.</p> <p>Held, that this ruling was erroneous, the paper not being one in any way connected with the granting of the attachment, and, therefore, was prohibited by section 683 of the Code from consideration when the motion to vacate was made.</p>

On the petition of the appellant commissioners were appointed in February, 1883, to appraise the damages occasioned by the appropriation by the petitioner for its railway, ninety-nine feet in width, of certain lands of which Thorne was owner, and Hemingway & Co. were his tenants, engaged in the fruit and vegetable canning business. The commissioners heard the testimony and made report, awarding to Thorne $3,500 and to the tenants $2,200.

This action was brought to recover $10,000 on a certificate •of membership, issued to Edward B. Rogers by the “ Mutual Reserve Fund Life Association,” of blew York. The plaintiff was beneficiary named in the certificate of membership.

<p>Demurrer to complaint on ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Husband and wife — Duress of husband — What is not sufficient to invalidate mortgage executed by wife.</p> <p>The constraint and duress which has generally availed to impeach a contract, even as to transactions between husband and wife, has proceeded from actual violence or well grounded fear of personal injury. An assent obtained through such means is regarded as neither freely or voluntarily given, and as creating no valid obligation.</p> <p>Where the evidence showed that the defendant executed the mortgage through the persuasion of her husband, and for his benefit, and through threats on his part that if she did not do so, “he would come in and go out of the house as he pleased,” and would “ stay away from her al nights, and would withhold speech from her ”:</p> <p>Held, that although these threats may have constituted the chief reasons why she executed the mortgage, yet as in the end she consented to do so, and did sign the papers voluntarily, there was no duress or illegal constraint exercised sufficient to impeach the mortgage in the hands of aD innocent lender of money within the meaning of those terms, as understood in the courts.</p>

Motion in behalf of the prisoner that a copy of the stenographer’s notes of the trial be furnished at the expense of the county.

<p>Executor—When liable for damages— Surrogate no jurisdiction in action to recover such damages — Practice — Code of Oivil Procedure, sections 814, 2617, 2815, 2816, 2514, 2803, 2807, 2808, 2553/2554, 2607, 2802, 2820.</p> <p>An executor who is directed to seU real estate and invest the proceeds is liable for damages to the aggrieved party, unless he performs his duty faithfully, although the time and manner of sale is left to his discretion. In such a case the surrogate has no jurisdiction in an action or special proceeding to recover such damages.</p> <p>Section 814 of the Code of Civil Procedure allows an action to be maintained in the name of the party interested against the sureties of such executors for such neglect of duty upon leave being granted by the supreme court.</p> <p>Proceedings before the surrogate have Aot been prescribed for such a breach of the bond.</p>

<p>This was a motion to strike out answer of defendant as “ sham and for such other and further order as to the court shall seem just” ■</p> <p>The complaint was on a promissory note for fifty dollars given by the defendant to plaintiff and verified in the personal knowledge of the plaintiff.</p> <p>The answer was in two separate parts.</p> <p>The first answer denied the indebtedness for which note was given, or that plaintiff presented note for payment.</p> <p>The second defense is upon information and belief, and denied the giving of note mentioned in complaint, or any note of fifty dollars; that if plaintiff has such note in her possession, or any such note, it was obtained by fraud, &c., while defendant was intoxicated.</p> <p>The answer was verified in the usual form.</p> <p>The plaintiff presented affidavits showing that the transactions were in the personal knowledge of the parties, and that, the answer was false.</p> <p>The defendant did not dispute any of these questions.</p> <p>1. The first allegation in the defendant’s answer does not deny any material allegation in the complaint and is clearly frivolous and should be overruled. 2. The second answer is bad. It is in the alternative, and the allegations relate to pefsonal transactions between the parties hereto, and an allegation denying them on information and belief does not create an issue. “ The answer of the defendant must contain first á general or specific denial of each material' allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” The defendant has personal knowledge of the matters in • the complaint, and his knowledge has swallowed up his belief, and he can no longer allege on information and belief (Code Civ. Pro., § 500; Sherman agt. Boehm, 15 Abb. N. C., 254; Edwards agt. Lent, 8 How., 28; Ketcham agt. Zerega, 1 E. D. S., 554). A sham answer is one that is false (Thompson et al. agt. The Erie R. R. Co., 45 N. Y., 468).</p> <p>opposed the motion. The ■ motion should be denied, for some material allegations in the • complaint are in issue by answer.'</p>

<p>Appeal — Motion for reargument in court of appeals — Discretion of general term —Evidence in trial court — Evidence not appearing injudgds minutes.</p> <p>Where by the evidence it appeared that plaintiff might have been entitled to •receive an undivided portion of the property to which he claimed the whole title, and to which the trial court gave him entire title, it was in the discretion of the general term to modify the verdict, or reverse it and send the case hack for a new trial; and where the general term has exercised such discretion this court cannot review its action, and a motion for a reargument on such a ground will he denied.</p> <p>The only way in which to justify such a finding would he to look into the evidence, and as the trial court took the case from the jury, and made findings of fact in which no such title to part appears, it cannot he considered here.</p>

Action for conversion of stocks owned by Benjamin H . Wright. Plaintiff was substituted. Stocks pledged to a note of $2,000 January. 14, 1878, tender of payment of note and demand and refusal to deliver 9tb of May, 1878, as alleged, and action commenced October 8, 1879, At tbe first trial, April 5, 1881, court ordered verdict for-$15,547.43.

Motion to continue the temporary injunction granted by judge Reach, restraining the appointment by mayor Edson, and the confirmation by the board of aldermen, of a commissioner of public works and counsel to the corporation.

The firm of Adler & Schoenhof were indebted to one Herman Adler upon amóte of the firm held by him, and to one Solomon Bachman for moneys loaned by him to the firm. The note held by Herman Adler was for $4,778.61, and was overdue. The defendant, Henry Adler, desiring to secure Herman Adler and Solomon Bachman, gave to.the former three firm notes aggregating the amount of said note held by him, and. took up the latter.

<p>Appeal — Limit of lime — Laws 1880, chapter 269 — Code of Civil Procedure,, section 1325 —Prop&r notice— Supreme court rule 2.</p> <p>The time in which an appeal from a decision of the general term, affirming-a reduction of assessment made by the special term upon a cerliomri brought under Laws of '1880, chapter 269, is regulated by section 7 of that, law, and not by section 1325 of the Code of Civil Procedure, and such, appeal must be taken within sixty days after service of a copy of judgment on appellant’s attorney.</p> <p>Where the address of the attorney was omitted from the notice of entry, &c., on the copy of a general term order served, but the copy of judgment for costs served on appellant’s attorney was indorsed with the address of relator’s attorney, and also with a notice that the ■ paper served was a copy of a judgment of affirmance, with costs, and giving the date and place of its entry:</p> <p>Held, to he a proper notice under rule 2.</p>

<p>Undertaking on appeal — Disqualification of attorneys as sureties.</p> <p>Rule 5 of the General Rules of Practice which provides, that an attorney and counselor shall not be surety on any'undertalring or bond, does not apply to a person whose name still appears on the roll of attorneys, but who abandoned the practice of the law many years ago to engage in another occupation, in which he still continues.</p>

Defendant moved to stay the plaintiff on his judgment for an escape until defendant could collect from the sureties on the undertaking given by one John Flanagan, an escaped prisoner. Plaintiff claimed that defendant had not proceeded with due diligence.

<p>Corporation — When stockholder may maintain action against a corporation to’ restrain wrongful acts and for an accounting— What is necessary to he alleged' or shown to entitle him to maintain such action — Effect of the presence of a director at a meeting of the hoard on matters which relate to his individual intei-est.</p> <p>Tks general rule seeíns to be that in an action brought by a stockholder to-restrain alleged wrongful acts of the corporation it must be averred and shown that the corporation has on proper application for that purpose refused to bring any suit, or to take any proper steps for the redress of those grievances.</p> <p>In this case it is not claimed that any demand has been made by the plaintiff upon the board of directors to bring the action, but it is alleged in the complaint that “ inasmuch as the defendant A. controls a majority of the board of directors, who are friendly to him, and aid and assist him in his illegal acts, and without whose consent or direction this action cannot be brought, this suit has been commenced by the plaintiff, and the said corporation is made a party defendant ” :</p> <p>Held, that under the peculiar circumstances of this case the plaintiff Has a standing in court and a right to maintain this action.</p> <p>The mere presence of a director or president of a corporation at a meeting of the board of directors vitiates the action of such board in respect to all matters which relate to his individual interest, unless such action he subsequently ratified by the stockholders.</p>

The plaintiff’s complaint stated that about March 5, 1873 one Amelia Schultz, unmarried, died intestate at Apolda, Saxon Weimar, Germany, possessed of real and personal estate amounting to upwards of $56,566, leaving as her sole heirs and next of kin her sister Louisa Marshall the plaintiff intestate, and the decendants of Willimena Hehner a deceased sister, who were made defendants, as their consent could not be obtained to be joined as plaintiffs.

<p>Constable — Mandamus—When will issue to board of town auditors requiring them to audit constables’ bill— When and how number of constables for a town to be fixed—When justices of trie peace may appoint.</p> <p>When a clear legal duty devolves upon an officer or upon a board of officers, which he or it refuses to discharge, a mandamus will lie to compel the performance of that which the law requires to be done.</p> <p>Although the rule of law is that generally the courts will not interfere by mandamus, when a party has an adequate remedy by action, it does not apply to a case in which when an officer refuses to discharge his duty by an appeal to some other officer the desired relief may be obtained, but to one in which a court is asked to interfere by mandamus when the party has a complete remedy by action.</p> <p>The relator presented to the board of town auditors a bill for services as one of the constables of such town, which such board refused to consider or to allow in whole or in part. The bill was made out in detail and verified substantially as prescribed in section 70 of 1 Revised Statutes (6i7i ed.), page 845. It is objected that the bill was not properly verified because the verification did not .conform, to section 2 of chapter 820 of Laws of 1869 :</p> <p>Meld, first. That the section referred to only applies to a bill in which the officer claims “ the increase or additional travel fees provided for in this act,” that is to say, those which said act allows. If the section, referred to was in force it would justify the board in rejecting any charge for “additional travel fees,” but it would not justify the refusal to consider the bill and to audit so much of it as was proper to- be audited.</p> <p>Second. That section is no longer in force, and as the relators- did not, apply for any allowance or audit under the act of 1869, the provision, in such act relating to proof of services claimed under it is. not now applicable.</p> <p>Where, at the annual town meeting of 1849, the electors of the town determined that four constables should be elected that year, and in 1859 it was again “Resolved. That there shall be four constables-elected.” No resolution having been since passed on the subject:</p> <p>Meld, that the resolution could only be operative for one year ; and as by 1 Revised Statutes (6th ed.), 823, section 8, the general number of constables of a town is five, and at the town meeting held in 1884 the electors having chosen only four constables, the three justices of the-peace properly appointed the relator and he became a legal officer off the town.</p>

<p>Improper joinder of causes of action— Code of (Jivü Procedure, sections 1843, 1846, 1852,1854.</p> <p>A bill against the personal representatives of a deceased- person to impress a lien upon the decedents real estate cannot be joined with an action, under the statute against his heirs and their grantees.</p>

<p>Motion to punish the defendant for contempt in disobeying an order of injunction granted in this action.</p>

<p>Copyright — What is not an infñngement.</p> <p>The unauthorized reproduction and sale of, a copy of a cut from a copyrighted hook or weekly paper is not an infringement upon such copyright.</p>

<p>Discharge of imprisoned debtor — Jail limits — Code of Civil Procedure, sections ■ 2201, 183, 184.</p> <p>An application for the discharge of an imprisoned debtor may be made in. the court out of which the execution is issued.</p> <p>The power of the old sheriff over prisoners ceases after ten days, and the* new one has no power unless they are assigned to him.</p> <p>An outgoing sheriff who neglects to deliver over a prisoner to his successor is liable to the plaintiff in the execution as for an escape.</p> <p>Where, on an application to discharge a debtor who was on the jail limits, it appeared from the papers that more than ten days had expired since' the new sheriff assumed his office, and yet it did not appear that the imprisoned debtor had been assigned to him, hut on the contrary, it appeared that he was in the custody of the late sheriff:</p> <p>Held, that as the late sheriff’s duties, powers and functions (except those specified hy law) had ceased, it cannot he said that the defendant is imprisoned, especially as he is on the jail limits, and not actually confined:</p> <p>Held, further, that the court could not proceed in the matter, as to act on this petition in the absence of proof that the prisoner has been duly assigned to the new sheriff might seriously impair the rights of the execution creditor as against the late sheriff or his bondsmen.</p>

<p>Motion by tbe defendants, in each, to vacate attachment</p>

This was an application by a father and guardian on behalf . of infants for the judicial settlement of the accounts of the ad'ministratrix of their maternal grandfather’s estate. The apphcation was opposed by the administratrix on the ground that the infants were not “ persons interested ” in the estate under section 2511 of the Code, and therefore not entitled to an accounting under section 2726 of the Code.

Motion and order to show cause why a writ of mandamus should not issue to the board of supervisors of Herkimer county, commanding them to reject and disallow the bill and claim of John C. Bichards for $706, verified November 16, 1885, and also to rescind the resolution of said board passed the 9th day of December, 1885, * * * 'audifing and allowing said claim and bill at $500; also forbidding said board from paying or authorizing to be paid, or issuing any order on the…

<p>Contract for the rendition of personal services — Effect upon the contract of the death of the employer — When executor of employer not hound, to fulfil.</p> <p>The plaintiff was hired by the defendant’s testator to do ordinary farm work for one year at $200 per year. Near the middle of the year the employer died. The plaintiff continued to work on the farm, as provided in the contract, until the end of the year. In an action against the executrix to recover the $200 due under the contract:</p> <p>Held, that the death of the testator terminated the contract, and the recovery should be limited to the value of the services up to the death of the testator.</p>

<p>• Costs — When'travel fees paid witness should be allowed — When stenographer's fees for copy of the evidence will not be allowed — Code of Civil Procedure, section 84.</p> <p>'Where, at the'time-df 'the trial, the witness’ permanent residence was in the city of Rochester, but, when subpoenaed, he was temporarily in the city of New York-on business, and refused to attend unless he was paid the statutory travel fees, and the plaintiff paid him, he making an affidavit that he was obliged to travel from the city of New York to the city of Rochester for the purpose of attending the trial, and, after it was over, to return to New York:</p> <p>■’Held, that the travel fees were properly allowed, and the plaintiff had a right to tax them.</p> <p>' The rule is to allow travel fees when paid to a witness in such cases, unless it appears that the party was in fault and guilty of negligence in omitting to serve' 'the subpoena'before the witness left his home, and, in view of the facts as disclosed,'it'was 'incumbent on the party resisting the allowance to show the fault of :the party paying the travel fee.'</p> <p>'Where the plaintiff:procured from the reporter a copy of the evidence, whose fees were allowed as an item of disbursement in the bill of costs as ! taxed,:-arid"'the •affidavit-as:to the disbursements, which was made by the plaintiff’s attorney, states that the items of disbursements set forth in the' bill were “ actually made and incurred,” the trial judge made a certificatethat, on the trial, he directed the stenographer’s minutes to be furnished the court, and that the reporter’s fees be taxed as a disbursement:</p> <p>Held, that as it did not appear that the court used the copy procured by theplaintiff, or that it was obtained by him for that purpose, the item should have been disallowed.</p>

<p>Railroads—Liability to assessment for heal improvements — Errors of commissioners of assessment which justify interference by the court.</p> <p>The lands of a railroad company are prima facie liable to be assessed for the costs of local improvements, the presumption being that they are benefited in common with all other lands within the area of assessment for such improvements.</p> <p>If the commissioners of assessment have discretion in determining what lands are benefited, it should be shown by their report why they have omitted any, and such omission of lands without explanation is an error in principle, justifying interference by the court.</p>

Motion by defendant to vacate an order for the examination of the defendant, under sections 872 and 873 of Code of Civil Procedure, made by the recorder of the city of Watertown.

<p> Code of Civil ^Procedure, section 829—When legatee under a disputed void, incompetent under this section, to testify in a proceeding for the probate thereof. </p> <p>In the trial of a proceeding for the prohate of a decedent’s will, one who is named as legatee in the disputed paper is incompetent, under section 839 of the Code of Civil Procedure (save in the cases therein excepted), to testify in his own interest concerning a personal transaction or communication between himself and the decedent.</p>

<p>■Code of Civil Procedure, section 895 —When open commission to take testimony may issue.</p> <p>An open commission cannot be allowed where the testimony is to be taken elsewhere than in the United States or in Canada.</p> <p>On an application for an open commission, where the witnesses that the defendants proposed to examine did not reside in Florida, nor did it appear that they were at the time of such application in that State, but it did appear that they resided in the island of Cuba;</p> <p>Held, that such an order should not be granted unless it was made to appear that such a commission was absolutely necessary for the protection of the applicant’s rights.</p>

<p>Criminal law — Code of Civil Procedure, sections 1085, 1051,1058,1059 — Jury — Practice as to árawing— When challenge to the array will not he-sustained — Murder—Evidence of premeditation.</p> <p>A challenge to the array, on the ground that the names of additional jurors-were not properly drawn, will not be sustained, if the jurors were drawn “in open court,” and “ from the box directed by the court,” even though, no directions were' given by the court, except by the formal order entered, where that specified the box as the one “containing the names of the-trial jurors for said court.” The fact that the other two boxes were not. in court is a mere formal irregularity.</p> <p>Y/here the prisoner the night before fired one barrel of his revolver in his saloon, leaving three barrels loaded, and just before committing the crime-said: “ You or me going to die it is sufficient to justify the jury in finding that the murder was deliberate and premeditated; and whether the-previous firing was intended to empty the revolver or to test it is a question of fact for the jury.</p>

<p>Appeal from an order of the special term, committing appellant Fairchild for non-payment of personal taxes, &c.</p>

<p>Motion by defendant to vacate an order obtained by plaintiff for the examination of defendant under section 870, &c.</p>

<p>Complaint—Demurrer—Replevin—Title, how should be slated in complaint— Code oj Civil Procedure, section 1720.</p> <p>A complaint in replevin must contain a direct issuable averment of ownership in the plaintiff, and allegations of the evidence of such ownership will not be allowed to take the place of such necessaryaverment.</p> <p>Where in a complaint in replevin to recover the possession of personal property it was averred (1), that the defendant detains the property set out in the schedule from the plaintiff; (2), that one Emma H. Scovill (not the defendant) executed and delivered to the plaintiff a chattel mortgage upon the property; (3), that by the terms of the mortgage the plaintiff had become entitled to the possession of the property; (4), that the defendant had its possession; and (5), refused to deliver it to the plaintiff on demand:</p> <p>Meld, that the complaint is fatally defective, because it is not averred that the plaintiff is the owner or has title to the property, nor that he had the right of possession by virtue of a special property therein, as required by section 1720 of the Code of Civil Procedure.</p>

<p>-Oomplaint—Demurrer — Action to foreclose a mortgage—Sufficiency of complaint— Code of Oivil Procedure, section 534.</p> <p>A plaintiff must state his interest or title, even in a suit upon an instrument for the payment of the money only, and such other extrinsic facts as are necessary to enable him to recover.</p> <p>A mortgage is not an instrument for the payment of money only.</p> <p>Where in an action to foreclose a mortgage, the allegation of the complaint is that the plaintiff is, by several assignments, which shall more fully and at large appear, reference being had thereto, now the lawful holder and owner of the bond and mortgage above mentioned and described, and is justly entitled to be paid the said principal sum above mentioned, together with the interest on that principal sum from the time above mentioned:</p> <p>Meld, that the complaint is defective; it does not show by whom the assignments were obtained, nor is the defendant apprised of the facts upon which the plaintiff relies to show that he is the owner and holder of the instrument in question. ,</p>

<p> Attachment—Gode of Oivil Procedure, section 636—Sufficiency of affidavit under this section. </p> <p>An averment in an affidavit for an attachment made by a plaintiff, “ that a cause of action exists in favor of plaintiffs against said defendants for "Which said action is commenced, and that the amount of plaintiff’s Claim in said action is $283.20, and interest from the 15th day of April, 1883, over and above all counter-claims and set-offs known to deponent,” is a compliance with the requirement of section 636 of the Code of Civil Procedure, that plaintiff must show by affidavit that he is entitled to recover a sum stated therein, over and above all counter-claims known to him, and is sufficient to give the judge jurisdiction to grant the warrant.</p>

<p>Motion for new taxation of costs. On the first trial the defendant had a verdict upon which judgment was entered for costs. The plaintiff appealed to the general term from such judgment, he also made a case containing exceptions upon which a motion was made at special term for a new trial, which was denied, and he appealed from the order denying such motion to said general term. On the appeal the general term reversed the order and judgment and granted a new trial, costs to abide the event. In the special term order denying a new trial nothing was said about costs!</p> <p>On the second .trial plaintiff recovered, and included in his bill of costs twenty dollars before argument, and forty dollars for argument on the appeal at general term, and also like sums before and for argument on the motion for a new trial at special term. The latter items (twenty dollars and forty dollars), the clerk, on motion of defendant, struck out, and the plaintiff made this motion for a new taxation.</p>

Pr., 388). The defendants, five in number, were a firm doing business in Chicago, 111. An attachment issued against the defendants as non-residents. The defendant Anderson Fowler on his own behalf moved to vacate the attachment on two grounds: First. That the property seized by the sheriff was not the property of the defendants, but of Frank Clifton & Co., of which concern the defendant Anderson Fowler was one. Second.

This was a reargument of a motion-on tbe part of tbe plaintiff, after nonsuit, for a new trial upon case and exceptions, ordered to be beard in tbe first instance at general term.

January 9, 1883, Lewis S. Phillips died leaving a paper purporting to be his last will and testament, of which the following is a copy: “ To whom it may concern : “ Considering the uncertainty of life, I hereby make my last will, by which I give and bequeath all my property and effects, both personal and real, to my wife Mary Bigelow Phillips, and I hereby appoint her executrix of this my will. “ If she finds it always convenient to pay my sister Carpline Buck the sirni of…

<p> Guaranty—When a secret collateral guaranty illegal and cannot he enforced. </p> <p>The defendants, representing a corporation, recited in their prospectus that its whole capital stock had been issued to them in payment for certain property, and that they had made an agreement to place 9,000 shares of the stock in the hands of a trustee who had ordered the sale of 6,000 shares, which were offered at the minimum price of fifty dollars per share. The plaintiff, who subscribed for 600 shares, received a collateral guaranty from defendants that they would, at a future time, in case he was dissatisfied with his purchase, take the same off his hands. In this action to recover back the moneys paid upon the subscription:</p> <p>Held, that each subscriber to a portion of the 6,000 shares had a right to require that each one of his co-subscribers should be a reliable subscriber, that is, an absolute subscriber, not possessing such a collateral agreement as that given to plaintiffs; and that the agreement in question not having been disclosed to all the parties subscribing for the stock, was illegal and cannot be enforced.</p>

<p>Motion to overrule demurrer, and for judgment.</p>

The complaint alleges a quantum meruit and a promise to pay a balance of $200 claimed to be due. The answer admitted that the plaintiff performed work and furnished materials, but denied their value. The court refused to allow the defendant to show that the work had not been done and the materials had not been furnished, and instructed the jury that the question for them to decide was not whether the work was done or not, but whether a promise to pay was made.

<p>Sheriff—Indemnitors for—When and, when not indemnitor may he substituted in action against sheriff— Oode of Civil Procedure, sections 1431 to 1437.</p> <p>In an action against the sheriff for an alleged trespass in seizing and converting plaintiff’s property, it is a fatal objection to an order discharging the sheriff from liability, and substituting in his place as defendants several persons who claim to have indemnified him for his acts, that the moving papers fail to show that the applicants became indemnitors to the sheriff before the commencement of the action.</p> <p>The provisions of the Code restricting the remedy of a party to the indemnitors of the sheriff, would seem to contemplate a seizure by that officer of property under a single execution or attachment, and the substitution of indemnitors liable upon a single bond, where the liability of the obligors is necessarily co-extensive with that of the officer whose position as defendant they seek to occupy, and not the substitution of numerous indemnitors liable for distinct and separate levies where each applicant is made joint defendant with numerous applicants, applying by other attorneys, and in separate proceedings, although the individual consents of each of the several indemnitors appearing in the record authorize only an order making the applicant alone a party defendant in the action.</p>

Motion on bebalf of The Union Manufacturing Company of Maryland to compel Charles D. Wells, assignee of Watson & Bartholow, to pay over certain moneys and to assign other ■ claims. The Union Manufacturing Company of Maryland, a manufacturing corporation organized under the laws of the state of Maryland, consigned its goods for many years prior to November 9, 1885, to Watson & Bartholow, commission merchants of the city of New York.

Trial by the court without a jury. Tbe defendants sawed timber for Fitzpatrick & Co., lumber-merchants, and their bill, aggregating $761.09, became due in June, 1885. After pressing Fitzpatrick & Co. for payment, the; defendants, on August 12, 1885, accepted Fitzpatrick & Co.’s note, payable in two months thereafter to the defendants’ order.

<p>Attachment — Code of Civil Procedure, section. 636 — Affidavit by agent of plaintiff— Clause “ known to plaintiff ” not a jurisdictional prerequisite to the issuing of warrant.</p> <p>The plaintiff’s agent, after setting forth the cause of action, states that “there is now due to said plaintiff from defendant the sum of $447.95 over and above all offsets and counter-claims known to deponent or to said plaintiff:</p> <p>Held, that the clause “ known to plaintiff,” as used in section 636 of the Code of Civil Procedure, is not a jurisdictional prerequisite for the issuing of a warrant of attachment, hut must be held to be merely limiting in its character and analogous to the statutes of Michigan, Colorado and other states, which provide that the plaintiff shall set forth the “amount of the indebtedness as near as may be over all counter-claims. ”</p> <p>The intent of the legislature in the enactment of section 636 considered.</p> <p>The case of Cribben agt. Schillmger (30 Hun, 348) questioned.</p>

Motion by defendants to vacate supplementary proceedings by reason of defects in'tbe affidavit upon wbicb tbe order to appear and answer was made.

<p>Executors and administrator’s — When court no jurisdiction over' foreign administrator.</p> <p>Where the defendant, who was a foreign administrator; was sued upon the guaranty of a bond, made by bis intestate, and the complaint averred assets within the jurisdiction of this court, and an effort by the administrator to withdraw them from the state, and' the relief prayed was a moneyed judgment, an injunction restraining defendant from p receiving, taking possession of, or collecting such assets and for an. accounting. On demurrer, alleging no jurisdiction in the court of either the person or subject of the'action:</p> <p>Held, that the demurrer was well taken, as this court has no jurisdiction of the person of the defendant as an administrator, because he was appointed in a foreign state</p>

<p>• Upon the application of the plaintiff, proceedings in an action for the foreclosure of a mortgage were stayed, the plaintiff, although not a party to the mortgage, but liable on the bond, undertaking to pay the same by a certain day.</p> <p>Before the day named, however, he procured a person to take an assignment of the mortgage.</p> <p>The defendants, the attorneys of the mortgagees, agreed to have the mortgage assigned, the plaintiff to pay the costs and expenses of the foreclosure suit.</p> <p>The defendants, upon presenting their claim for the costs and expenses of the suit, included an item of two and one-half peí cent on the -amount due on the mortgage, in the nature of an allowance.</p> <p>This item, amounting to $137.50, was disputed by the plaintiff. It was reduced by the defendants t© $100, and to which they claimed to be entitled</p> <p>This sum of $100 was paid by the plaintiff, he, however, at the time protesting that it was illegally and wrongfully exacted</p> <p>This action is brought to recover back the sum so paid.</p>

On January 14, 1884, letters testamentary were issued to-Thomas Welling, Sarah Welling and John H. Butts. Butts died July 15, 1884, after having acted up to that time. On the accounting, it was claimed that three full commissions should be allowed and apportioned, the manner of the apportionment being agreed upon between the two survivors and the executrix of the deceased.

This action is brought to recover real property and- the pos- - session thereof. The- property in dispute is a portion of the-road bed occupied by the defendant in. or near the village of Amsterdam, Montgomery, N. Y.. The facts are agreed upon and the only questions to be determined are questions of law.

<p>Taxes—Bale of lands for, ly county treasurer—County treasurer may become purchaser— Tenant may acquire title from county treasurer as against Ms landlord —Laws of 1881, chapter 2(JO.</p> <p>By section 7 of chapter 260 of the Laws of 1881, the county treasurer of Ulster county was “ empowered to acquire and hold ” any lands which were'sold for taxes, “and after the two years for redemption has expired, * * * to sell and convey the premises as such section directs.” Where the county treasurer of Ulster county did “acquire and hold ” the premises described in the complaint, under and in pursuance of the act aforesaid, and after the expiration of two years conveyed the same to the wife of the tenant occupying the premises:</p> <p>Held, that a tenant is authorized as against his landlord to acquire an outstanding title. The title of the owner was extinguished by the sale. His right to redeem was cut off by the notice given pursuant to section 12 of the act, and as the county of Ulster had become the owner, there was nothing to prevent the wife of the tenant from becoming the ■ purchaser.</p>

<p>Attachment—Affidavit by agent—Sufficiency of—Qode'of Cfivil Procedure, section 636.</p> <p>The affidavit of C., on which the attachment was granted, alleges that “ he is the agent and one of the salesmen for the plaintiffs herein ; that at certain specified dates the plaintiffs sold and delivered to the defendant at his special instance, goods of a certain value, no part of which has been paid, although deponent has demanded payment of the defendant, and said sum is due to the plaintiffs herein from the defendant, over and above all claims and offsets :</p> <p>Held, that this affidavit fulfills the requirements of section 636 of the Code of Civil Procedure. An agent and salesman is presumed to be familiar with the every, day occurrences and general routine of his employer’s business affairs, and to have better, or at least as good, knowledge of the condition of things between the plaintiffs and the defendant as the plaintiff himself. It is not necessary for him to account for his knowledge.</p> <p>For the same reason it is not necessary for him to account for his making the affidavit in consequence of his employer’s absence from the State.</p> <p>Nor is the affidavit insufficient because of the omission of the clause “ known to them.” It is made not only by an agent, but by a salesman of the plaintiffs, and the cause of action arises out of a sale of goods ; it was made on knowledge, and the well know n rule of law applies that “ the law will not infer that matters positively sworn to were not within the personal knowledge of the affiant.”</p>

The complaint alleged an indebtedness of the defendant on a guarantee that the firm of Lowry & Brown would pay :for all goods (woolens) sold and delivered by plaintiffs to said firm. The answer admitted the indebtedness, but set up a counter-claim for damages by reason of the defective character of said goods. Plaintiffs obtained an order that defendant serve a bill of particulars of said claim for damages specifying the number marked on each piece of damaged goods.

This was an appeal from tbe sixth district court. The action was brought originally against J. Morgan Howe, to recover for broker’s commission on the sale of a house and lot in this city. Morris B. Baer and Morris B. Bronner, composing the real estate firm of Morris B. Baer & Co., had also claimed the same commission. Howe obtained an order to showe cause why they should not be substituted as defendants in his place.

<p> Assignment—Through fraud—Teed—When will be declared' null and void. </p> <p>Although it is not enough to induce a court of equity to interfere to show that a bargain is hard and unreasonable, nor does mere inadequacy of consideration alone form a ground for equitable relief; yet there are cases where there is no positive evidence of fraud, in which the inequality of the bargain is so gross that the mind cannot resist the inference, that though there be no direct evidence of fraud, such a bargain must have been in, some way improperly obtained.</p> <p>In such cases a court of equity will avoid a bargain, not merely on account of its gross inequality, but because that inequality furnishes the most vehement presumption of fraud.</p>

<p>Appeal by attorney for plaintiff, from an order made by Mr. justice Lawrence imposing upon him all the costs and referee’s fees on the reference, which was ordered to ascertain the whereabouts of the plaintiff, so that an injunction could be served upon him.</p>

Motion on the part of plaintiff to continue a temporary injunction obtained by him to restrain the defendants from prosecuting an action in the superior court until the final decision of a case pending in Missouri.

This action was originally tried in justice court where a judgment was rendered in favor of the plaintiff and against the defendant for $145.80. Defendant appealed for a new trial to the Steuben county court. It was referred, by stipulation, to-A. Hadden, Esq., referee, tried and a judgment entered on his-report for $249.98, from which the defendant appealed to this court. The case was argued and judgment affirmed.

<p>Criminal law — Code of Criminal Procedure, section 527— New trial— Powers conferred by this section as to new trial to be exercised by the supreme court.</p> <p>The power given by section 527 of the Code of Criminal Procedure of ordering a “ new trial, if satisfied that the verdict * * * was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below,” was intended to he exercised by the supreme court alone, and does not apply to this court.</p>

<p>Administrators — Guardian—Code of Civil Procedure, sections 2685, 2882— Revocation of letters of administration or of guardianship — What must he made to appear)' to justify such revocation.</p> <p>.In order to justify un.der section 2685 or section 2882 of tlie Code of Civil Procedure tlie revocation of letters of administration or letters of guardianship upon tlie ground that such letters were obtained by a “false suggestion of a material fact,” it must appear that such false suggestion was made to the tribunal by which such letters were granted.</p>

<p>Appeal from order of Erie county court setting aside judgments entered in favor of the parties respectively, and directing judgment to be entered for the balance of the two judgments.</p>

<p>Appeal — Undertaking—Incorporated guaranty company not alone sufficient to execute undertaking on appeal—Code of Civil Procedure, secs. 1334, 1335.</p> <p>An undertaking on appeal to the court of appeals must he executed by at least two sureties ; the appellant cannot himself be one of the sureties, nor can the approval by a judge of a guaranty company under chapter 486, Laws of 1881, take the place of the two sureties. This reverses the judgment of the general term, rendered in Hurl agt. Hannibal and St. Joseph B. B. Co. (67 How., 516).</p> <p>An undertaking executed only by the appellant and the Fidelity and Casualty Company, with no other surety, is insufficient.</p> <p>An appellant is only required to file the return and serve the printed cases. The respondent, if he wishes to expedite the case, can himself put it upon the calendar and notice it for argument.</p>

<p>Appeal from an order made at special term directing the defendant to pay the disbursements of a reference to ascertain the facts relative to an alleged disposal of money due to the defendant after the service of an order upon him in proceedings supplementary to execution.</p>

This is a motion made by tbe plaintiff and appellant to stay tbe further prosecution of an appeal to tbe general term, from tbe judgment rendered in favor of tbe defendant and respondent at special term.

The defendant, the Mutual Trust Fund. Life Association, issued to one C. D. Milligan a certificate of membership, whereby they agreed, upon the death of said Milligan during the continuance of the membership, to pay the sum of $3,000 equally (share and share alike) to Alice E. Milligan (wife) as one party, and to the survivors of his friends, George E. Goddard, Thomas J. Tuomey, H. J. Stemler, Thomas Gorey, Thomas Kelly, Charles C. Pettus, F. Sheffield, John F. Souter and G,…

<p> Will—Interest on legacies, when begins to run. </p> <p>A testator directed that a certain legacy should be paid “as soon as practicable,” after his death. By a later article of his will he made a trust provision in favor of another beneficiary, directing that such trust be established “ as soon as possible,” after his death, and that interest beginning at his death, be paid to the beneficiary ; but he provided that such trust should not be set up until after the payment of the legacy first referred to.</p> <p>Held, that upon such legacy interest did not begin to run until a year after the death of the testator.</p>

<p>Hearing upon an alternative writ of prohibition.,</p>

<p>Will— Widow's tide to real estate by devise though cha/rged with the debts of testator— When she can give good title unincumbered by such debts— Code of CM Procedure, section 2750.</p> <p>A devise was as follows: “After all my lawful debts are paid and discharged, I give, devise and bequeath all my estate, real,- personal or mixed, to my wife L. E. W.”</p> <p>Held, that though the real estate stands charged .with the debts of the testator, yet as the charge is general, the devisee, after the expiration of the statutory lien of three years, can give a good title to purchasers unincumbered by such debts.</p> <p>The widow was made sole executrix, but there was no mention of dower in the will.</p> <p>Held, that the assertion of her right, to dower in the account filed by her before the surrogate cannot be construed into an election to take her dower in the place of the devise.</p>

<p>■ Judgment — On remittitur — Practice as to judgments absolute wherre the damages a/re unliquidated, — Assessment should be had at trial t&rm — Code of Civil Procedure, sections 1214, 1215, 1183, 3194.</p> <p>The action is for negligence, and the trial judge dismissed the complaint. Upon appeal the general term of the city court reversed the judgment and ordered a new trial. The defendants thereupon appealed to the court of common pleas, giving a stipulation for judgment absolute. The common pleas affirmed the order of the city court, general term, and gave “judgment absolute” in favor of the plaintiff:</p> <p>Held, that as the damages were unliquidated, the assessment thereof must be had at the trial term before a jury.</p> <p>Sections 1214 and 1215 of the Code apply only to applications for judgment by default, and even in those cases the “writ of inquiry” may be executed at trial term if so directed.</p>

<p>Appeal— Orders of surrogate when not appealable— Oode of Civil Procedwre, sections 2570, 2584, 1310 — when perfected appeal does not operate as a stay in surrogate’s court.</p> <p>The surrogate having directed, in a case where one’s right to be a party to a probate controversy was in dispute, that that issue should be inquired into and determined before the taking of any testimony in the matter of the factum of the will, a motion was made that a trial of all the issues proceed simultaneously.</p> <p>Held, that an order denying such motion was not appealable.</p> <p>Held, further, that a perfected appeal from an order denying a motion for taking by commission testimony without the state, though it concerned a “substantial right,” within the meaning of section 2570 of the Code of Civil Procedure, did not operate as a stay of the trial of the probate controversy before the surrogate.</p>

<p> New Inal—When should be allowed on the ground of newly-discovered evidence. </p> <p>Where, on a motion for a new trial, all the facts sought to be placed before the jury as new evidence might, with proper diligence, have been known to the defendant’s attorney, yet the failure of the attorney to set up those facts should not prejudice his client or prevent a new trial if the facts really existed, and are such as should be submitted to the jury on a trial of the case.</p>

<p>Special partnership — What is not a sufficient compliance with the statute as to contribution of capital.</p> <p>The law of New Jersey provides that in case of a special partnership, the special partner shall, before the filing of the certificate, “ contribute in actual cash payments a specific sum as capital to the common stock”:</p> <p>.Held, that the delivery of a check payable at sight is not a compliance with the statute.</p>

On the 30th of June, 1881, the defendant, John B. Page, entered into certain contracts with one E. R. Wiggin, in the words following: “Value received, I hereby agree to pay and deliver to E. R. Wiggin, or his order, on demand,, fifty shares of the capital stock of the North River Construction Company, said stock having twenty per cent of its par value paid in thereon — that is, twenty dollars per share, “ New York, June 30, 1881. “JOHN B. PAGE.” and “ For value received, I…

<p>WiM — Decimation of— ffib form of words me necessmy — Evidence sufficient to constitute proof of decimation of a will.</p> <p>To make the declaration required by the statute as to wills no form of words are essential, but what is required is that the witnesses shall be given to understand by words or acts by the decedent that the proposed instrument is intended as a will; the legislature only meant there should be some communication to the witnesses indicating that the testatrix intended to give$effect to the paper as her will. Any communication of this idea, or to this effect, will meet the object of the statute.</p>

The complaint alleged that August Buermaun died being a member of the New York Produce Exchange which had a gratuity fund of $5,000, to be distributed to his widow and children on his death, but that in his life-time he had in his last will and testament given the fund solely to his children, his wife having executed a release of the same to him.

<p>Arrest—Affidavits —- Insufficiency of, to show a valid ground of arrest —Code of Civil Procedure, section 550.</p> <p>The fact that defendant said that he would not pay the plaintiff, and that he could not get the money, furnishes no ground of arrest, even when coupled with the admitted assertion that he was going to Europe.</p> <p>Where the only evidence submitted is, that defendant said that he would not pay the plaintiff, that he was going to Europe, and the opinion of plaintiff that he was about to take away all his money and property; a valid ground of arrest is not established.</p>

The defendant having been convicted of having taken a female under the age of sixteen years for the purpose of prostitution, makes this motion for a stay pending an appeal.

<p>Appeal from 'order of Monroe special term vacating an •order of arrest</p>

The case was tried by and before Mr. William B. Hornblower, as referee. At the close of the evidence a motion was made on the part of the defendant to dismiss the complaint, and, in disposing of that motion, the referee pronounced the following opinion: This is a suit brought .by the plaintiff, as executor of his mother, Maria A. De Peyster, against the defendant, as an individual and as executor of his father, Frederic De Peyster, the second husband of plaintiff’s mother.

<p>Appeal from an order of tbe Cattaraugus special term denying defendants’ motion to set aside tbe taxation and allowance-of costs to tbe plaintiffs, and to tax and allow costs to tbe defendants.</p>

Motion to vacate an order made for the examination of the defendants. The deposition being needed, as is claimed on the plaintiff’s behalf, to enable his. attorneys to prepare a complaint in the action, which was commenced by the service of a summons.

Defendant appeals from a judgment rendered in favor of the plaintiff in the fifth district court, and also from an order denying a motion made by the defendant to vacate a warrant of attachment issued against the property of the defendant.

This action was brought to restrain defendants from collecting taxes imposed upon premises in the city of New York, • occupied by plaintiff for a school, and to have said taxes .adjudged illegal and void. This was a retrial of the action, a new trial having been •ordered by the court of appeals, upon reversing a former judgment in favor of the plaintiff..

<p>Oode of Civil Procedure, section 870 — Examination of defendant by plaintiff before suit brought cmthorized by this section.</p> <p>Under section 870 of the Code of Civil Procedure, an order may he granted to the plaintiff for the purpose of examining a person against whom he proposes to bring an action, hut the granting of such order is entirely in the discretion of the court.</p>

<p>Street railroads — Necessary consents to the building of such road, — Consent of the owners of one half in value of the property bounded on each street or portion of street necessary.</p> <p>The constitutional and statutory provisions in reference to the construction and operation of street railroads makes it necessary to have the consent of the owners of one-half in value of the property bounded on each street or portion of a street upon which it is proposed to construct a railroad, and not merely the consent of the owners of one-half in value of the property bounded upon the whole of the route over which it is proposed to build the road.</p> <p>If that is not done, then the building of the road must be authorized by the commissioners appointed by the general term of the supreme court and by the general term itself.</p> <p>As a railroad constructed in a public street without authority would be a public nuisance, the burden of proof is upon the defendant, to show that it has such authority.</p>

The appellant had moved at special term to open a judgment. taken by default at trial term for $4,321. The motion was based on an affidavit and an affidavit of merits. The opposing affidavits put in by the plaintiff claimed that the defendant had admitted the embezzlement alleged in the pleadings, and that his counsel made a similar admission, and the said affidavits stated other grounds against granting the favor asked for.

<p>Practice — Action—Effect of banlmuptcy of plaintiff after action begim, where the answer is a general denial.</p> <p>The rights of parties to a legal action are to he determined as they were at its commencement, unless some event, happening subsequently, and afiecting those already in issue, is presented by supplementary pleadings to the court, and the fact that plaintiff, after the commencement of the action, was declared a bankrupt, and that the cause of action had passed to his assignee, cannot be proven on the trial where the answer was a general denial.</p>

<p>Statute of Limitations — As applied to non-resident debtors — Code of Owil Procedure, section 390.</p> <p>Except as limited by section 390 of tbe Code of Civil Procedure, that section extends to non-resident debtors tbe protection of tbe Statute of Limitations in all cases where it bas run according to tbe laws of tbe debtor’s residence.</p> <p>In determining this question tbe foreign law, as interpreted by tbe local courts of tbe state whose statute is invoked, must prevail. In other words, under our Code foreign debtors are allowed to bring with them .the protection which their home government gives them while there— nothing more.</p> <p>The courts of this state will not construe foreign statutes, but must accept the interpretation the local courts of the particular state place upon them. Each state is the best interpreter of its local laws.</p>

<p>Specife performance of contract on sale of real estate— Validity of title — Foreclosure of mortgage, and publication of summons against mortgagor <md owner of the fee who has disappeared. —Proof of facts of complaint inpartition — Sufficiency of proof of death of owner of the fee — Presumption of life and death.</p> <p>Claus Bulwinkel, the owner of four lots on Fifth avenue, New York city, disappeared, having made a mortgage thereon which, on the 22d day of August, 1862, was foreclosed and the summons published against him. The lots were sold under a judgment for their sale in this action. Six years thereafter the purchasers, through proceedings, in foreclosure of said mortgage by an advertisement under the statute, sold two of the lots, and they bringing more than sufficient to pay the mortgage, the other two lots now in question were not sold, but a quit-claim deed thereof was given to the heirs of said Bulwinkel.</p> <p>One of these heirs thereupon commenced an action in partition alleging that on or about the day of 1862, Claus Bulwinkel departed this life, and stating who were his heirs, but on the trial or hearing no attempt was made to prove the death, or that the said parties were the heirs. The judgment, however, treated the same as proved, and at the sale by a referee the plaintiff became a purchaser and took title, all the parties to the partition action also conveying their rights and interests to the plaintiff. On the 23d day of July, 1883, the plaintiff contracted to sell the two lots to the defendant for $22,500.</p> <p>The defendant refused to take title, because Claus Bulwinkel had not been made a party to the action, or appeared therein; that there was no proof that he was dead, or died intestate, or that the parties in said partition suit were seized of the lots, and that the court acquired no jurisdiction over Claus Bulwinkel, and that the sale to plaintiff was void-</p> <p>Evidence of the omitted facts in the partition suit was given on the trial of this action, among other things, that Claus Bulwinkel left New York city in the year 1860. In November, 1862, his relatives read an account of the massacre of emigrants in the south-west August 9, 1862, and among the killed a gentleman from New York city describing said Bulwinkel, the relatives testifying that they had not heard from him and that it was the common report that he had been killed by the Indians and was dead:</p> <p>Held,, that by the statute he was presumed to be dead on the 9th day of August, 1869, seven years from the date of his reported death.</p> <p>That the evidence was sufficient to prove the particular date of death to be August 9,1862, seven years before, and that he did not live during seven years (Citing and commenting on the cases and what facts arre sufficient proof of death ata parrtiaulm time).</p> <p>That the foreclosure action was commenced at a time when he was dead and had been buried thirteen days; that tb e judgment entered was void; that no title passed under it, the same being in the heirs.</p> <p>That the partition suit was begun seven years after Claus Bulwinkel would be presumed to be dead by the statute, independent of the evidence of the direct proof of his death.</p> <p>That the defect of evidence might have been supplied in that suit by opening the proceedings, but that the heirs being all of full age, and having, on the 5th day of January, 1872, conveyed by deed to the plaintiff all their right, title and interest in the lots, he had a good title, independent of the partition sale, and the defendant was bound to take it.</p>

This was a motion made by plaintiffs after tbe joining of issue for an order appointing a referee or referees to bear and determine tbe issues herein. Tbe statement of facts contained in tbe pleadings and affidavits upon wbicb tbe apphcation was made are sufficiently set - forth in tbe opinion. An appeal was taken from tbe order appointing tbe referee, and tbe general term affirmed tbe order, basing their decision-upon tbe following opinion, written at special term.

<p>Debt— Collateral security to — When does not extend time of payment of — Neglect of m-edilor to enforce does not release debtor.</p> <p>The transfer of accounts against third parties, as security for an indebtedness of the assignor to the assignee, does not extend the time of payment of the original debt, unless it is so agreed.</p> <p>To make the taking of collateral security extend the time of payment of the-indebtedness secured, there must be either a positive agreement to that effect or the circumstances must show that such was in fact the intention of the parties.</p> <p>Mere neglect on the part of a creditor to collect securities held by him as. collateral security to a debt, will not release the debtor.</p>

<p>This was an action on contract for services performed as secretary and treasurer by the plaintiff, for defendants, in his official capacity as such secretary and treasurer, and for extra services in superintending work in Minnesota, purchasing materials at points at and between New York and Minnesota, paying laborers at points in Minnesota, making arguments, before local bodies, for town bonds, etc., and obtaining' the voting of them and for other services.</p> <p>It appeared that plaintiff was a director and the regularly elected secretary and treasurer of defendants, and the judge presiding at the United States circuit court at which the cause was tried, charged the jury that they should not allow plaintiff for any services performed by him as director or secretary and treasurer, but that they should allow him for any authorized extra services, if they found any such to have been performed by him, and that if they found for plaintiff any verdict upon such grounds, that he would be entitled to interest on the amount found from the date of the last service so performed. The jury retired late in the afternoon and came in subsequently, the foreman announcing a verdict for plaintiff for $3,500. The next morning the jary having separated, but the term not having ended, plaintiff’s attorney applied to the court to have the statement of the verdict corrected, presenting written memorandum of the jurors afterwards sworn to, in open court, by all the jurors, that the verdict, as intended, was for $3,500 principal and interest, making in all $5,538.20. The remaining facts appear sufficiently in the opinion of Hon. Hoyt H. Wheeler, judge sitting at the United States circuit court, eastern district of New York, before whom and a jury the cause was tried, and who, on the application for judgment, rendered the following opinion.</p>

<p>Appeal by respondent from an order convicting defendant of contempt in disobeying an injunction order.</p> <p>The injunction order was made to accompany a summons in an action brought, or about to be brought, in this court. The order was signed by a judge of the common pleas for the city and county of JSTew York. The defendant disregarded the order by doing what the terms of the order enjoined him from doing, and, in certain proceedings to punish, him for contempt, was held to be in contempt.</p>

<p>Appeal from order of the special term denying motion to compel James S. Allen, as assignee of John J. Anderson, to ■ pay the plaintiffs’ judgment recovered against Anderson.</p>

<p>Code of Uiril Procedure, section 873 — Examination of pan-ties before trial— When application for order will be denied</p> <p>An examination of a plaintifE, will not be allowed, for the purpose of discovering what consideration the plaintifE paid for the note sued on, and which was misappropriated by the party to whom it had been intrusted to procure its discount and return the proceeds to the makers.</p> <p>An examination will not be allowed in a case where a hill of discovery could not be maintained.</p> <p>Where the object for which the examination is sought by the petitioner, is for the purpose of discovering whether the plaintiffs can maintain their cause of action, the nature and number of their witnesses, or of determining whether the plaintiffs have title to the note, or else to anticipate perjury, the application will be denied.</p>

<p>New York (city of) — Piers and wharfs — Power of the legislature to reguláis the making or taking of leases of real estate by the corporation of New York— Pulton fish market — Validity of lease — Duty of derk of common council as to leases.</p> <p>The legislature has power to regulate the use of piers and wharfs in the city of New York, although the same are the property of the corporation.</p> <p>The legislature has also the power to regulate the taking or making of leases of real estate by the corporation of the city of New York.</p> <p>'The defendants, the Fulton Market Fishmongers’ Association, was incorporated by chapter 277 of the Laws of 1869, and by section 3 of said act the commissioners of the sinking fund were authorized to lease to said corporation the present fish market, with portions of the piers adjoining on either side, for a term not exceeding ten years, and providing for the construction of new buildings for a fish market. Pursuant to that act a lease was made for ten years, and in 1879 a new lease for ten years was made. This action is brought to recover two quarters’ rent in 1884 under this lease. The commissioners of the sinking fund, under the act of 1883, amending the act of 1869, duly authorized the execution of the lease relied on by the defendants, on condition of the surrender of the then existing lease and of the execution of the new lease by them. This lease having been approved by the counsel to the corporation, was executed by the defendant and also by the mayor, but the seal of the city was not affixed thereto. Defendants surrendered the old lease.</p> <p>Held, that the act of 1883, amending the act of 1869, is not in conflict with the constitution of this state, and these acts do not in any way violate the-corporate rights of the city of New York.</p> <p>Though the clerk of the common council should sign any leases made by lawful authority, and should fix the seal of the city upon all such leases, as he is made by section 76 of the consolidation act the custodian of such seal, and his signature is thereby required to be fixed to all leases made-by the city, yet as defendants have done everything in their power to carry out their contract with the city, it does not rest with the plaintiffs-to assert that the old contract, which was abrogated by the new, is still in force in consequence of the wrongful act or insubordination of their agent.</p>

<p>Pleading— Complaint— Answer—Denials in, when bad—When allegations of complaint to be deemed admitted.</p> <p>The complaint contained the usual allegations to charge the drawer and acceptor of a draft. The only denial in the answer of the defendant sued as the acceptor was, “denies each and every allegation therein contained not hereinafter specifically admitted, controverted or denied.</p> <p>Held, that such a denial was neither a general nor specific denial, and, therefore, no denial; and that consequently all the allegations of the complaint were admitted, and that the referee erred in dismissing the complaint for want of proof that the defendant who was sued as acceptor had accepted the draft.</p> <p>Held, also, that a statement in the answer admitting the acceptance " of a draft similar to the one set forth in the complaint ” was an admission of the acceptance of the draft sued on.</p>

<p>Injunction—May be issued on affidavit—Beference— United States courts exclusive jurisdiction over infringements of patents — Gode of Oivil Procedure, sections 604-628-1015.</p> <p>An injunction may be issued upon affidavit without a complaint. The state courts have no authority to issue an injunction to prevent an infringement of a patented invention. The courts of the United States are invested with exclusive jurisdiction over that subject, and it cannot be exercised by the courts of the states.</p> <p>Where an injunction has been issued upon affidavits, which show the controverted fact upon which the disposition of the litigation will probably be required to depend to be the title of certain patents, and it is-deemed to be too uncertainly presented to be disposed of on affidavits, a reference is authorized by section 1015 of the Code of Civil Procedure, upon which the evidence may be orally produced before the referee affecting the rights of the parties.</p>

The action was brought against the corporation to recover upon a written contract signed by the president, and upon the trial the defendant’s counsel offered in evidence the by-laws of the corporation, duly authenticated to prove certain restrictions and limitations on the authority of the officer signing the contract.

<p>Landlord and tenant — Right of landlord to recover rent for the month where the tenant left the premises on the first da,y, after a demand and refusal.</p> <p>In an action by a landlord to recover rent from a tenant for the month of November, under a written lease providing for the payment of rent in advance on the first of each and every month, and upon the rent for November being demanded of her on the first day she refused to pay, and on the afternoon of the same day she personally left the house, but her sub-tenants continued in possession. The tenant claims that the character of the house was bad, though represented to her differently at the time she leased it.</p> <p>Held, that the tenant was liable for November rent.</p> <p>Where the landlord has not accepted a surrender of the premises or exercised dominion over them by virtue of any abandonment and surrender until after the rent becamb due, the tenant is not, and hereby relieved from the payment of rent already accrued.</p> <p>Where the defendant admitted having discovered in the month of June, 1884, the baa character of the house :</p> <p>Held, that as she then knew that the representations made to her were false, it was her duty to affirm or disaffirm the contract; but having kept the house until the first day of November, and paid the rent in full until that time, she did not exercise her election of rescinding the contract within a reasonable time, and is therefore liable for November rent.</p>

Pending suit the plaintiff transferred his entire cause of action to Henry Day. The defendant made a motion, under section 756 of the Code of Civil Procedure, for an order directing Henry Day to be substituted as party plaintiff. The court duly denied the motion on the ground of want of power, following Packard agt. Wood.

<p>Actions — Discontinuance of — Bight of plaintiff to discontinue.</p> <p>Where an action was begun in the court of common pleas by plaintiff as ancillary administrator oí a lunatic, against the committee of such lunatic for an accounting, and before trial entered an ex parte order of discontinuance on payment of costs, which was vacated by the court, and a motion to discontinue also denied, on the ground that the plaintiff intended to commence an action in the supreme court, and would harass defendant:</p> <p>Meld, error; that, ordinarily, a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court.</p>

This action is brought by the plaintiff, as devisee and heir-at-law of William Jones, against the defendants, also his devisees and heirs-at-law, for the purpose of determining the construction and effect of certain devises of real estate to each, • under the last will and testament of said William Jones.

<p>Checks a/nd hills — Bona fide holder — What must he shown to constitute — Agency — W,--en post-office not the agent of the p&i'son to whom, negotiable paper ■ is sent.</p> <p>Upon a deposit being made by a depositor in a bank, in the ordinary course • of business, of money, or drafts or checks received and credited as money, the title to the money or drafts or checks is immediately vested in and. becomes the property of the bank.</p> <p>It is a fraud upon a depositor for a bank or banker to permit a depositor, in reliance upon the supposed solvency of the bank, to make deposits after 1 it has become irretrievably insolvent, and such insolvency was known to ■ the bank or its agent, and upon the discovery of the fraud the depositor may rescind the contract and reclaim the check or draft deposited, unless such check or draft has come into the possession of a bona fide holder for ■ value.</p> <p>A person claiming to be a hona fide holder of a negotiable instrument must show under what circumstances the instrument came into his possession,, and to establish his title to the instrument he must show the consideration he paid for it.</p> <p>Where the defendant, late on the seventh of November, deposited the check in suit wiili hi. ito Co., bankers at Mlt. Vernon, and after business hours said check was deposited by M. & Co. in the post-office, to be sent to-plaintiff for payment of cheek of M. & Co., paid that day by plaintiff, on M. & Co.'s promise to make a deposit before the bank opened on the following morning.</p> <p>Held, that plaintiff had no right to the check or its proceeds as against the defendant.</p> <p>The mere fact that M. & Co. had promised to make good or pay any indebtedness of his to plaintiff, and that the plaintiff relied on such promise, would not be sufficient to constitute the plaintiff a bona fide holder for value.</p> <p>The post-office was used as a messenger of ML & Co. to make the deposit, and not as the agent of the bank in receiving it.</p>

<p>Supplementary Proceedings — Police pension fund — Moneys received from such fund by a widow of a Policeman, cannot be reached by supplementary proceedings.</p> <p>Moneys received by tbe widow of a policeman from the police pension or insurance fund, cannot be reached by a judgment creditor on supplementary proceedings, instituted either before or after the money reaches her hands.</p> <p>The police pension or insurance fund is in the nature of a trust, expressly authorized by statute for the benefit of widows and orphans, and as the funds proceed from persons other than the judgment debtor, and are intended for the support of the beneficiaries, they cannot be directed by means of this proceeding and turned over to creditors.</p>

<p>Mortgages — Unrecorded mortgages — Who is a subsequent mortgagee in good, faith, and for a valuable consideration — When fiourty ca/nnot claim the benefit of the recording act.</p> <p>A gave three mortgages to C, through D, the latter’s attorney, for moneys • loaned, one dated October 2, 1882, and the other two dated February 17, 1883. The attorney, D, handed the bonds to C, and retained the mortgages for record. He caused the first mortgage to be recorded, but the last two were never recorded. On September 13, 1883, A executed a bond and mortgage to the American Baptist Home Mission Society upon the property covered by C’s recorded mortgage. On January 11, 1884, he executed mortgages to the same society upon the property covered by C’s unrecorded mortgages, which mortgages to the society were recorded Mr. D, the attorney for C, was also an officer of, and counsel for, the society. It was for funds of the society in his hands and chargeable to him for reinvestment that he undertook to turn into the society the bonds and mortgages referred to. A few months thereafter he made an assignment, for his creditors:</p> <p>Held, that as against C, the relation between D and the society was that of debtor and creditor, and the taking of the bonds and mortgages for D’s antecedent debt did not constitute it a mortgage for a valuable consideration, so as to be entitled to take advantage of the fact that its mortgages were first duly recorded. The claim that C being also an officer of the society should have prevented D from acting as he did, and that his executors were, therefore, estopped from enforcing their mortgages against the society is not tenable, C’s rights having accrued before any wrong was perpetrated upon the society.</p>

Motion to set aside the judgment, execution and return and a supplemental order herein, for the examination of the defendant as a judgment debtor.

<p>Action, or special proceeding relating to animal straying upon highway— Oode of Oivil Procedure, sections 3096, 3108—Proceedings upon decision in favor of person answering—When action cannot he maintained hy person to whom precept is directed, and who is personally served and appears and answers in the special proceeding.</p> <p>In proceedings under chapter 19, title 10 of the Code of Civil Proceedure, relating to an animal straying upon the highway, where the person to whom the precept was directed by name is personally served or appears and answers, the theory of the statute is to give him damages, where he succeeds upon the trial of the issue only when the seizure is found , to be malicious and without probable cause, and only then in the special proceeding where the issue is decided in his favor. All the issues are to be determined in one special proceeding, and not a part tried in a special proceeding and a part in an action.</p> <p>Where, as in this case, the precept was directed to the plaintiff in this action by his name and he was personally served, and he appeared and answered, unless the justice found that the seizure was malicious and without probable cause, he was not entitled to recover any damages under the statute, as section 3108 expressly excludes him from maintaining such an action.</p>

Motion by defendant for leave to serve supplemental answer' setting up the recovery and satisfaction of a judgment against another party for the same cause of action. The action being; for an assault and battery committed by the two defendants.

The action was brought against the defendant as commission merchant, to recover the proceeds of sales of sheep and lambs consigned to the defendant by the plaintiff. The case, upon a former appeal, is fully reported in 8 Civ. Pro. Rej?., 284.

<p>Practice—Appeal— Oode of Oivil Procedure, section 191 — Matter in controversy within the meaning of this section.</p> <p>Where the action is not founded upon contract the sum. for which the complaint demands judgment is deemed to be the amount of the “ matter in controversy ” within the meaning of section 191 of the Code of Civil Procedure, which prohibits an appeal when the matter in controversy is less than §500.</p>

<p>Reference — What issues a/re triable by the court — When reference should not be ordered— Oode of OinsiX Procedure, sections 969, 968, 1013.</p> <p>Actions to set aside fraudulent conveyances, transfers, releases and settlements should be tried by the court.</p> <p>Under section 1013 whether to refer or refuse the reference is addressed to-> the discretion of the court. It is obviously the purpose and theory of' the law that equity actions are to be tried by the court.</p> <p>Even in actions involving the examination of a long account, references-are ordered, not as a matter of right or of favor to the parties, but for the convenience of the court, and the court cannot, for its own convenience in such cases, order a reference when there are difficult-questions of law involved.</p>