Volume 100 — New York Reports

(Mem. of decision below, 17 J. & S. 476.) This was an action for partition. In 1878 the property in question was conveyed to Jacob Bram and Babeta Bram, his wife. On September 23, 1881, said Babeta Bram executed a deed purporting to convey an undivided one-half of the premises to plaintiff. On September 30, 1881, said Jacob and Babeta Bram joined in a deed of the premises to defendant, George A. Bram.

<p>Habeas Coepus.</p> <p>Upon return to a habeas corpus, the court having jurisdiction of the writ has power to determine whether the judgment or process under which the petitioner is held, emanated from a court of competent jurisdiction, and whether the court had power to give the judgment or issue the process.</p> <p>Courts-martial and delinquency courts are courts of limited jurisdiction, having jurisdiction only of offenses against military discipline committed by persons belonging to the particular branch of the military organization for which such courts are organized.</p> <p>In the absence of a valid enlistment of the person proceeded against, such court has no authority over the offense or the person.</p> <p>The recital of jurisdictional facts in the record of courts of limited and inferior jurisdiction does not prevent their judgments being impieached by extrinsic evidence showing want of jurisdiction, whenever they are sought to be used by way of defense or justification to persons seeking to enforce them.</p>

(Reported below, .17 J. & S. 68.) This action was brought to recover an alleged balance on deposit by plaintiff with defendant. The material facts are stated in the opinion. The check was not avoided or vitiated by the alteration so as to affect its validity or impair its effect as originally drawn. The bank is entitled to charge it against the account of the maker for the correct amount, and at the true time he made it payable.

The nature of the action and the material facts are stated in the opinion. The appeal by the plaintiffs will lie. They are not only parties to the action, but are aggrieved by the judgment as they are thereby deprived of the opportunity to realize their claim against the assignee of the insurance company for professional services rendered to him as such. (Bockes v. Hathorn, 78 N. Y. 222.).

The nature of the modification and the material facts are stated in the opinion. The fire commissioners had jurisdiction to make the order dismissing the relator, and in their proceedings have complied with every condition prescribed in the statute which defines their powers.

<p>An appeal from a judgment entered on a verdict must be determined solely upon exceptions taken on the trial.</p> <p>An exception can be taken only to a ruling by the trial court upon a question of law.</p> <p>Where there is no exception to a ruling of the court as to the sufficiency of the evidence to establish a fact in issue and the defeated party desires to move for a new trial, he must do so in the first instance before the trial court or at Special Term. (Code of Civ. Pro., §§ 999, 1003.)</p> <p>Not having done this, no question affecting the merits or the sufficiency of the evidence to support the verdict may be raised at General Term.</p> <p>An exception to the admission of evidence may only be taken when it is received against the parties’ objection.</p> <p>It is not essential to the validity of an order of the General Term allowing an appeal to this court, in the cases wherein an appeal is not permitted except when so ordered, that the.General Term making the order shall be composed of the same judges who constituted the General Term which decided the case. The only restriction upon the power of the General Term to make the order is that it shall be "made at the General Term which rendered the determination or at the next General Term after judgment is "entered thereupon.” (Code of Civ. Pro., § 191, subd. 3 and 3.)</p>

the Court of Common Pleas of the city and county of Hew York, entered upon an order made March 15, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a verdict. This action was brought to recover damages for alleged breach on the part of defendants of an implied warranty of authority to execute a contract of purchase made by them ostensibly as agents for, and on behalf of, principals named. The material facts are stated in the opinion.

This action was brought to recover damages for an alleged breach of contract for the sale of land.

The complaint in this action alleges, in substance, that plaintiffs are possessed of an undivided interest in certain real estate situate in the city of New York; that they appointed defendant as their agent to collect the rents thereof, agreeing to pay him five per cent on the amount collected for his services; that he agreed to pay the taxes and water rents charged upon the premises, out of the receipts for rent; that he collected, under the agreement, the rents for the…

(Reported below, 33 Hun, 235.) The material facts are stated in the opinion. The court below erred in deciding that allowances to special guardians in Surrogate’s Court are costs, the amount and allowance of which are fixed by the Code, and to be entered in the decree. (Code, §§ 2, 17, 2530, 2566; Redf. Surr. Pr. [2d ed.] 769, note; McCue v. O'Hara, 5 Redf. Surr.

Singer to open, vacate, or modify certain decrees of said surrogate, and which granted the application. (Reported below, 36 Hun, 258.) The material facts are stated in the opinion. The surrogate had jurisdiction to make the decrees sought to be set aside in this proceeding.

(Reported below, 36 Hun, 359.) The material facts .are stated in the opinion. The lunatic remains the owner of his property in spite of the appointment of the committee by the Supreme Court. (3 R. S. [5th ed.] 134, §§ 12, 17; Code of Civ.

The application for the writ was made upon the ground that the incumbent, who was elected in November, 1882, for a term of six years, became seventy years of age in July, 1885, and that in consequence thereof, and by virtue of section 13 of article 6 of the State Constitution, his term would expire on December 31, 1885.

(Reported below, 27 Hun, 406.) This action was brought upon a promissory note, for the sum of $350.

Appeal by the plaintiff from a judgment of the General Term, in the Third Department, January 23, 1885, reversing a. judgment of a Circuit Court, Hon. A. Bocees presiding, of December 1, 1884, upon a direction to render a verdict against defendants. The facts appear in the opinion.

Appeal by William Barnes from an order of the General Term of the Supreme Court, in the third judicial department, made the fourth Tuesday in January, 1885, which affirmed an order of Special Term denying an application of the said Barnes for an order requiring Edward Newcomb, receiver of the Atlantic Mutual Life Insurance Company, to pay over to said Barnes, a-judgment creditor of said company, a sum in the hands of said receiver, claimed to, be a surplus arising on…

The material facts are stated in the opinion. A statute which confers on a municipal corporation the power to divest individuals of their property without their consent is to be strictly construed.

Writs of error and appeals to review judgments of the General Term of the Supreme Court, Third Department, of December 15, 1884, affirming convictions of the defendant in the Albany Oyer and Terminer.* The people also brought error from one of the same judgments, so far as it affirms an order granting leave to make and serve a bill of exceptions, and denies a motion to strike same from the record.

This action was brought by plaintiff, as assignee of the firm of Slawson Brothers, to recover an excess over what was alleged to be a reasonable charge for the transportation of milk over the Harlem railroad, of which road defendant was the lessee. The material facts are stated in the opinion. The defendant, as a common carrier, created such by charter for the sole purpose of serving the public, was bound to transport freight for reasonable compensation.

This action was brought to recover a balance of moneys in defendant’s hands, alleged to have been received by him on contracts with the United States government for the transportation of the mails from San Francisco to Portland, Oregon, which contracts plaintiff alleged, although entered into by defendant in his own name, were in fact made by him as agent for plaintiff. The facts, so far as material, are stated in the opinion.

Term of the Supreme Court, in the second judicial department, entered upon an order made May 13, 1883, which affirmed á judgment in favor of plaintiff, entered upon a verdict. (Reported below, 29 Hun, 637.) ■ The nature of the action and the material facts are stated in the opinion. The servant assumes the risks ordinarily incident to the business in which he engages as it is conducted by his employer, or as it may from time to time be changed by the employer.

Appeal by the defendant, Gniseppe Guidici, from, a judgment of the General Term of the Supreme Court in the Second Department, of February, 1885, affirming a judgment of the Kings county Court of Sessions, Hon. Hemry A. Moore presiding, convicting defendant of murder in the first degree. The facts are as follows: Daghiero, the deceased, lived with his wife at the corner of President street and Hamilton avenue, Brooklyn.

Appeal by defendant, August Platt (or Plath), from a judgment of the General Term of the Supreme Court in the first department, of May, 1885, affirming a judgment of the Court of General Sessions of New York, of March 2, 1885, convicting defendant of abduction under subd. 1, section 282 of the Penal Code. For the facts and points of counsel see the report of the case at General Term. 3 NY. Grim,. Rep. 129.

This was an appeal by Catharine A. Valentine, the mother of the infant above named, from an order of General Term affirming a decree of the surrogate of the county of Kings, appointing George W. Bergen guardian of the person of said infant. The surrogate’s decree also imposed costs upon the appellant individually.