Volume 11 — Abbott's New Cases

Indictment against Newton Martin Curtis for violation of the act of August 15, 1876, c. 287, § 6 (19 U. S. Stat. at L. 169, and Rich. Supp. to U. S. R. S. 245). The statute is as follows : “Sec. 6.

Henry Simms, claiming title to premises in the city oí Brooklyn under foreclosure of a mortgage by action, brought ejectment against George Voght and others, who were in possession as tenants, under one Vogeler, who held a tax lease from the city authorities, given on an alleged sale of the premises for non-payment of taxes and water rates.

<p>Exception to report of referee on an accounting of the executors of Theodore Mar tine.</p>

<p>Petition that Executor pat legacy..—Offset of Legatee’s debt to Testator.—Surrogate’s Jurisdiction of Disputed Claim.</p> <p>The surrogate cannot grant a legatee’s petition for payment, if the executor’s answer denies the validity and legality of the claim, and alleges facts which support the denial.</p> <p>An answer alleging that the legatee is debtor to the estate in a sum larger than the legacy,—Held, conclusive.*</p>

George Smith, an infant, by his guardian brought this action against the Grand Street, Prospect Park and Platbush Railroad Company, to recover damages caused to plaintiff 'by being knocked down by one of the horse cars of the defendant, through the negligence of the driver thereof. Plaintiff was less than two years of age at the time of the accident.

. This action was brought by Vincent M. Shoemaker against James W. Shoemaker to compel defendant to remove obstructions which he had placed in a way, and to restore such way. It appeared that John Shoemaker, then the owner of certain premises, conveyed the east part to the defendant in 1860 by warranty deed describing the west line of the part so conveyed as the center of a lane leading from the highway north a portion of the way through the premises.

<p>Removal of Indictment to Oyeb and Teemineb.—Stay Pending Motion.—Notice of Application.—Pbactice.— Code of Ceiminal Pbocbdtjbb.</p> <p>The facts that an indictment found in the court of sessions raises a constitutional question, which has been decided by that court upon a motion to quash ; that the law does not prescribe a maximum, punishment for the offense charged ; and that, owing to local excitement, there will be difficulty in procuring a fair trial—do not present grounds which authorize its removal to the court of oyer and terminer of the same county for trial.</p> <p>An application for a stay of proceedings under section 347 of the Code of Criminal Procedure, pending a motion to remove the indictment for trial, should ordinarily be upon notice to the district-attorney; and the affidavit should state with precision and accuracy, the exact situation of the indictment, the steps already taken in the court from which removal is sought, and the supposed intended action in such court, while the application is being made.</p>

This was an application for approval of a guardian’s ■’bond. The bond was executed by the guardian and guaranteed by the Fidelity and Casualty Company, a corporation organized under the general laws of the State of New York and authorized, among other things, to guarantee the fidelity of'persons holding positions of public or private trust.

<p>Paetneeship Accounting.—Compelling Payment by Plaintiff to Receivee.</p> <p>The plaintiff in an action to dissolve a copartnership, who has procured the appointment of a receiver, may be compelled on the receiver’s motion to pay over collections made by him, just prior to his application for the receiver and injunction.</p>

<p>Costs.—Set-off of Motion Costs against Judgment.—Attorney’s Lien.</p> <p>The lien of an attorney upon a “report,” &c., in his client’s favor, given by section 66 of the Code of .Civil Procedure, does pot apply to a report upon a reference ordered in an interlocutory application under section 1015; the costs of such proceeding are motion costs within "section 779, and may on the application of the adverse party be set off against the costs recovered by him on the final judgment.</p>

<p>Costs and Disbursements against Executors and Administrators on Reference of Claim.—Code of Civil Procedure.</p> <p>Where a claim against a decedent’s estate is materially reduced upon a reference tinder the statute, thus making it apparent that' payment thereof has not been unreasonably resisted or neglected, neither costs nor disbursements can be recovered by the claimant under Code Civ. Pro. §§ 1835, 1838. Tt seems, that under those sections, the right to recover disbursements depends upon the allowance of costs.</p>

<p>Habeas Corpus for Discharge of Lunatic after Recovery.</p> <p>A writ of habeas corpus will issue for the purpose of securing the discharge of one who has been legally and regularly committed to a lunatic asylum, and has subsequently recovered his sanity.</p>

<p>Habeas Corpus to Discharge Lunatic.—Effect of Pending Proceedings to Determine Sanity.</p> <p>The question of the sanity of one who has been regularly committed to a lunatic asylum, should not be tried upon habeas corpus, while there are pending proceedings under sections 2330 et seq. of the Code of Civil Procedure to determine that question with the aid of a jury.</p>

<p>Code of Criminal Procedure.—Depositions Upon the Information. '</p> <p>Under section 149 of the Code of Criminal Procedure, a deposition upon an information of the commission of a crime must set forth the facts tending to establish the crime, and not merely the conclusions of the witnesses.</p>

Order for inspection with copy of certain books, papers and vouchers in the custody or under the control of defendant, or to show cause why an order therefor should not be granted. ■ This action was brought by plaintiff, the owner of certain real estate in the State of New Jersey, against defendant, who had been her agent in respect thereto, for an accounting.

Trial by court without a jury. Plaintiffs brought this action to compel the defendant to deliver to them three hundred shares of its stock in exchange for that number of shares of the stock of the Erie Railway Company owned by plaintiffs, upon payment of the assessment provided for in the plan for reorganization. The defendant demurred to the complaint on the ground that it appeared that plaintiffs’ right to exchange had been lost by failure to apply within the proper time.

<p>Receivers oe Corporations,—Advertisement tor Claims.</p> <p>The provision of the Revised Statutes (pt. 3, c. 8, tit. 4, art. 2, § 56),* requiring publication, for not less than six months, of notice to creditors of a corporation, against which a bill has been filed, to exhibit their claims,—is limited in its application to proceedings under that article, and does not apply to advertisement for claims by a-receiver of a life insurance company, appointed in a proceeding under L. 1869, c. 902. In the.latter case, the time and extent of publication are to be determined by the discretion of the court.</p>

Motion to confirm the report of a referee in favor of a claim against the receiver of the Globe Mutual Life Insurance Company, arising upon a policy on the life of Oliver H. Booth.

Motion to confirm the report of a referee. Henry R. Pierson, receiver of the North American Life Insurance Company, sued defendants, Brexel, Morgan The answer admitted the deposits, but claimed they were to be held for the security of certain policies issued abroad. By consent, an interlocutory order or judgment was entered in the action on February 25, 1878, and was amended December 6, 1879.

<p>-Jurisdiction.—Foreign Corporation.</p> <p>The circuit court of the United States for the southern district of New York has jurisdiction of an action between two foreign corporations, where the defendant transacts business within the district and process is served upon its proper officer there.*</p> <p>Although at common law process against a corporation must be served on its principal officer within the jurisdiction of the sovereignty where the corporate body exists, it can waive the right, and when it avails itself of the privilege of doing business in a foreign State, whose laws authorize it to be sued there by service of process upon an agent, its assent to that mode of service is implied.</p>

<p>This was an appeal from an order denying an application for a writ of mandamus.</p> <p>The relator, Theresa W. B. King, was a colored child residing with her father in the city of Brooklyn. In May, 1881, and again in September of the same year, she applied for admission to Public School No. 5, which was in the school district of her residence and of which defendant was' principal. She was refused admission on the ground of her color, and was assigned to Colored School No. 1, which was located in the same district. Relator then moved, by an order to show cause, for a writ of mandamus to compel defendant to admit' her her to Public School No. 5. The motion was denied.</p> <p>It did not appear from the moving papers that the colored school was in any respect inferior to the one to which admission was sought, but a motion by relator’s counsel, after the denial of their motion, for a re-hearing on additional affidavits showing that fact, was denied by the court.</p>

<p>Habeas Corpus and Certiorari to Inquire into Detention, under Warrant oe Court Martial.—Military Code.—Warning to Attend Drills.—Notice oe Hearing.—Issuing oe Warrant.</p> <p>Where personal service of a summons to attend a court-martial is made pursuant to section 199 of the Military Code (L. 1870, c. 80, amended L. 1880, c. 547), the five days’ notice prescribed in section 142 is unnecessary, that provision only applying to cases where charges and specifications are served, or where the service is by mail.</p> <p>Nor is' it necessary in such case to give the warning provided by sections 135-138.</p> <p>The warrant for the collection of the fine may be issued within fifteen . days after the expiration of the time to appeal.—i. e., twenty days after publication of the order approving the fine (§§ 214, 202).</p>

This action was brought by the People of the State of New York against The Metropolitan Telephone and Telegraph Company, for the purpose of having it judicially declared “that certain poles now erected, or intended to be erected, in a certain street in the city of New York be declared a public nuisance and an obstruction to the public use of said street; that the said defendant forthwith remove each of said poles, and all the parts of said structure so by the defendant…

This was an appeal from a judgment of the general term of the supreme court in the second judicial department affirming a judgment dismissing plaintiff’s complaint. The action was brought by Mary Devlin, as administratrix, &c., of Hugh Devlin, deceased, against Josiah T. Smith and John Stevenson, to recover damages occasioned by the death of plaintiff’s intestate.

This was an appeal by. defendant from an order of the special term denying a motion to vacate an order appointing Thomas Regan, receiver in supplementary proceedings, of the property of the defendant. Plaintiff, having obtained judgment against the defendant, and execution being returned unsatisfied, obtained an order for the examination of defendant in supplementary proceedings.

This action was brought for the partition of certain lands, and the appellant made a party defendant, on the ground that he held a foreclosure judgment upon the premises, recovered April 29, 1848 ; also a mortgage, executed as collateral security for said judgment, dated April 25, 1850; also that he claimed a lien by virtue of a sale for unpaid faxes. The complaint alleged the plaintiffs’ belief that the judgment and mortgage were actually or presumptively paid.

Motion by plaintiff to correct the judgment-roll entered in this action, and for the restoration of the property from which he or his assignee had been evicted by the execution issued upon such judgment. The facts sufficiently appear from the opinion.

<p>Foreclosure op Mortgage.—Right op Junior Mortgagee to Compel Foreclosure op Prior Mortgage.—Pleading.—Plea op Action Pending.—Sham and Frivolous Answer.</p> <p>A motion for judgment on one defense in an answer as frivolous, and to strike out another as sham, may be joined in one application.</p> <p>A plea of the pendency of another action brought by defendant for the same cause,—Held, frivolous where it appeared that the judgment sought by the plaintiff could not be obtained by the defendant in his former action.</p> <p>The holders of a second mortgage set up in their answer in an action to foreclose the prior mortgage, first, that prior to the commencement of the action, they had commenced an action to foreclose their mortgage, making the prior mortgagee a defendant, setting out her mortgage, and asking its foreclosure as well as that of their own, which action was still pending; and second, a formal plea of pendency of another action for the same cause. Upon a motion by plaintiff for judgment upon the first defense as frivolous and to strike out • the second as sham,—Held, that a junior mortgagee being unable in an action to foreclose bis mortgage, to make a prior mortgagee a party and enforce his security contrary to liis wishes or against his rights, the first defense was frivolous ; that the plea of another action pending being only supported in fact by the pendency of an action by the junior mortgagee to cancel the mortgage now in suit, was sham and false in fact, although it was afterward attempted to change such former action by amendment of the complaint to one to foreclose such prior mortgage.</p> <p>It rests with the holder of a mortgage to select for himself the time and manner of enforcing his security, so long as he does not hold or put it forward unlawfully or inequitably as against a subordinate interest.</p> <p>The case of McBeynolds v. Munns, 3 Keyes, 314, followed and applied.</p>

William H. Gatlin sued defendants to recover for goods taken from three trunks of plaintiff, sent by Mm as freight by the defendant, from Hadley, Saratoga county, New York, to Rye, Westchester county. The allegations of the complaint were as follows: “That, at the several times hereinafter mentioned, the defendant was a corporation, duly created and existing under the laws of the State of New York, and engaged in carrying goods for hire.

<p>Executor’s Accounting.—Borrowing Money to Evade Taxation. —Charging Interest to Income.—Commissions.—Unauthorized Payment.—Appeal.</p> <p>Upon an appeal from a surrogate’s decree on an executor’s accounting, where the appellant does not cause the evidence taken before the auditor to be returned, the facts found by the auditor must be assumed to be fully justified by the proofs.</p> <p>It is not lawful or proper for an executor or administrator to borrow money on the credit of the estate for the sole purpose of evading taxation by purchasing securities exempt from assessment, and thereby temporarily tiding over the period within which assessments must be made, witli the intent to then dispose of the same to repay the borrowed money.*</p> <p>It seems, that if losses have been sustained in that way, the executor or administrator and not the estate is chargeable with them.</p> <p>If, however, the transaction results in a net profit, besides escaping ' the tax, the estate is chargeable with payment of the interest on the money borrowed. It cannot take the profits of the transaction without adopting the incidents attending its realization.†</p> <p>Such interest should be charged to an income fund for the payment of annuities, and not to the capital of the estate, the taxes which were avoided being chargeable to the former fund.</p> <p>Executors or administrators have no right to appropriate moneys for the payment of their commissions, until an allowance thereof by the surrogate’s court; and are chargeable with interest upon such advancement, even where it was taken in good faith and under advice of counsel.</p>

This was a motion for an injunction restraining the defendant, its agents, servants and attorneys, from locating or building upon the route, theretofore located and adopted by the plaintiff, or any part thereof.

<p>Depositions.—Examination op Third Person to Enable Plaintiff to Erame Complaint.</p> <p>A person, not a party, cannot be examined for the purpose of enabling a plaintiff to frame his complaint.</p> <p>An allegation, in an affidavit for the examination of a witness before trial, that such examination is necessary to prosecute the action, is not sufficient to authorize the order on the ground of an intent to use the examination on the trial. Such intent should be alleged.</p> <p>The “ special circumstances ” which authorize an examination under Code Civ. Pro. § 872, subd. 5, are circumstances of the same general nature as those mentioned in the preceding part of the same subdivision.</p>

<p>Depositions.—Examination op Party Before Trial.—Affidavit.</p> <p>The existence of the facts which a party desires to examine his adversary before trial to prove, must be alleged in the affidavit. An allegation that the party desires to prove such facts is insufficient.</p>

Petition by defendant, Joshua C. Sanders, to compel Margaret E. Adriance to produce and discover certain books and documents. The action was ejectment to recover the possession of certain lands in the city of New York, and was prosecuted in the name of said Margaret E. Adriance, as grantor of Charles F. Willis, the real party in interest.

Questions arising on an order to show cause why an attorney should not be disbarred. The facts appear fully in the report.

This action was commenced in the district court in the city of New York for the fourth judicial district, by summons. Upon the return of the summons the plaintiff by way of complaint alleged that defendant had converted to his own use certain property belonging to her. The defendant answered by a general denial. The case being tried, the justice found in favor of the plaintiff for $50 damages, and $22,50 costs and extra costs.

The supervisors of Saratoga county brought this action against the defendants, who were holders of notes proporting to be the notes of that county, but which were alleged to have been issued by the county treasurer to an amount in excess of that authorized by the resolution of the board of supervisors.