Volume 17 — New York State Reporter

<p>Trust—When lawful—When no unlawful accumulations.</p> <p>In the will in question the executors were simply required to support, educate and maintain the decedent’s son during his minority, and to pay therefor out of the income of one half of the estate, the whole of which was devised and. bequeathed to them. The entire income of the other-half they were directed to pay over to the widow during her life; at the death of the widow the entire estate and any accumulations was to go to-the son, who, after arriving at twenty-one years of age, in the event that his mother is then living, has no interest whatever in the estate or its income during her life, except such sum as the executors may from time to time advance to him out of the income, as they may think proper. But. if his mother be not living on his arrival at majority, he is then entitled to the whole estate and any increase or accumulation thereof. Meld, that there was no invalid or unlawful trust for the accumulation of the; income of the property.</p>

<p>Motion by defendant for a new trial on exceptions ordered to be first heard at the general term.</p>

The plaintiff, the United States Ice and Eefrigerating Company of the city of New York and the defendant entered into a written contract whereby defendant agreed to buy and plaintiff agreed to sell 4,550 shares of the United States Ice and Eefrigerating Company, at ten dollars per share, payable as follows: $5,000 on August 27, 1880; $15,000 on October 1, 1880; and the remaining $25,000 prior to the 15th day of February, 1881, which $25,000 were to be held by the Central…

<p>^Negligence op bailboad tbain apfboaching a cbossing—When a QUESTION POB THE JUEY.</p> <p>The plaintiff on approaching the crossing of the defendant’s railroad at the intersection of a certain street in the city of Buffalo, looked both ways. There were seven tracks, occupying a space of over 100 feet. And the night was dark, so that he could not see over 100 feet. He saw no trains approaching, but half way over was stopped by a switch train and stopped a moment, when he was struck and injured by an engine which had no head-light and which gave none of the statutory signals of its approach. There was no flagman at the crossing. Held, that the question whether the plaintiff was guilty of contributory negligence should have been submitted to the jury.</p>

, Appeal from a judgment entered upon a verdict in the plaintiff’s favor rendered at the Genesee circuit for the sum of $600 damages.

The action was brought in April, 1887, on an instrument in writing, of which the following is a copy: Canandaigua, October 9, 1886. c ‘ For value received, I promise to pay the superintendents of the poor of Ontario county, fifty dollars, without interest, on the first day of April, 1887, fifty dollars on the first day of April, 1888, and fifty dollars on the first day of April in each and every year thereafter, until one thousand dollars in all is paid.

<p>1. Taxes and assessment—Voluntary payment.</p> <p>When the assessment roll was regular on its face and nothing about it to lead a person to suppose that any fact existed which rendered it invalid, a payment of such assessment is not a voluntary payment, and the same may be recovered back. To constitute a voluntary payment so as to prevent a recovery, it must be made with a knowledge of all the facts rendering the assessment void.</p> <p>2. Same—Remedy.</p> <p>A party can in the same action ask to have the assessment roll annulled and to recover back the amount paid by him.</p>

<p>1. Practice — Foreclosure of Mortgage — Prior mortgagee not a NECESSARY PARTY—EFFECT OF DEATH, ETC.—CODE ClV. PRO., § 1305.</p> <p>An admitted prior mortgagee is never a necessary party to a foreclosure suit, and consequently if he dies or his interest devolves on another pending the action, the proceedings may go on without reviving or continuing them against his successor. ‘</p> <p>3. Same—When a separate judgment against one of several defendants MAY BE HAD UNDER CODE ClV. PRO., § 1305.</p> <p>The application of the provisions of Code Civ. Pro., § 1305, as to a separate judgment, is not limited to cases of joint and several liability, but this section authorizes a separate judgment when a separate liability of some of the defendants is established on the trial, although the cause of action alleged in the complaint was joint only.</p>

<p>1. Practice—Attachment—Motion to set aside on original papers— No FURTHER AFFIDAVITS CAN BE READ—CODE OF ClVIL PROCEDURE, § 683.</p> <p>Where an application is made to set aside an attachment on the original papers, no further additional affidavits can be read in support of the attachment.</p> <p>°2. Same—When objection waived.</p> <p>Where the defendant does not object to the reading of the affidavits on the hearing of such an application, he waives his objection, and it is too late to raise it for the first time on appeal.</p> <p>3. Same—When supporting affidavits can be read.</p> <p>Where the application is based upon new papers, the plaintiff may, upon the hearing, read affidavits in support of it.</p> <p>4. Same—Attachment a process of the court—Rule 25 does not apply</p> <p>to.</p> <p>Rule of Practice No. 25, which requires that in certain cases the affidavit supporting an application for an order shall show whether any previous application had been made, does not relate to an applicaiion for an attachment, it being a process of the court. It applies only to orders made in an action pending.</p> <p>5. Same—What facts sufficient to justify granting of attachment,</p> <p>The papers upon which the attachment was issued stated the amount of the indebtedness remaining unpaid; that it arose upon contract; that the defendant was not in the city; that her agent was disposing of her goods and refused to pay the plaintiff’s debt, or to In any way secure it. That many of the goods had been sold for cash; that actions had been commenced against the defendant, and in four cases the officer had been unable to find the defendant to make service of the summons; that the defendant had before given plaintiff a check of $250 on a bank in which she had no funds, nor was any provision made for its payment. These facts, together with the unexplained continued absence of "the defendant, are sufficient to justify the granting of an attachment.</p> <p>6. Same—Effect of restoring attachment that has been vacated.</p> <p>Where an attachment has been vacated, an order restoring said attachment will, if the property attached is still in the hands of the sheriff, restore the lien without a formal levy. But it will not give the plaintiff any advantage over intervening creditors, nor determine the order of their liens.</p>

<p>1. Eminent domain—Taking of land for park purposes—Buffalo (city of)—Appeal from order confirming report of commissioners —Laws 1884, chap. 159.</p> <p>In a proceeding taken by virtue of Laws 1884, chap. 159, having for its object the acquiring of certain lands for a public park in the city of Buffalo, an appeal lies, from the order of the special term of the superior court of Buffalo, confirming the report of the commissioners appointed to appraise the value of land, to the general term of said court.</p> <p>2. Same—Report of commissioners not conclusive.</p> <p>The language “ The court shall confirm the report” in the sixth section of said act does not indicate an intent to make the report of the commissioners conclusive, binding upon the court to confirm.</p> <p>3. Same—Subject to Code Civ. Pro , §§ 1356 and 1361.</p> <p>The said statute being silent upon the subject of the right of appeal and no language being used which indicates an intent to restrict that right, said order is subject to the provisions of the Code Civ. Pro., §§ 1356 and 1361, and is appealable.</p> <p>4. Eminent domain—Measures of damages for taking leasehold inTEREST.</p> <p>The property in question, which was sought to be taken for park purposes, pursuant to Laws 1884, chap 159, was leased to B. & W , for a term of years. The lease vested the lessees with a contingent right of purchase. It provided that the lessees should use said premises for icehouses, etc., which buildings, etc., were to be and remain the property of’the lessees, with the right of removal, upon the expiration of the term. In conformity therewith, the lessees did erect thereon large buildings, etc., and fixtures, for the prosecution of the ice business. These structures, appliances and fixtures were of a solid and permanent character, and if owned by the owners of the soil would pass as real property under a deed. Held, that the measure of damage s of the lessees, when said land v, as taken by right of eminent domain, was the value of his improvement, in addition to his leasehold interest. That the value of the use of the land with the right to remove the buildings, etc., did not measure the rights of the lessees under their lease.</p> <p>5 Same—Test.</p> <p>The test is what is the character of the property. It is none the less the property of the tenant, although never to be removed. Such ownership does not make it personal property, although the right of removal may be exercised and exists.</p> <p>6. Same—Value of property—How estimated.</p> <p>The commissioners in awarding damages must consider the value of the property to be taken as it exists at the time the proceedings were instituted. The sum awarded the lessees or ter ants for their leasehold interest, is to be deducted from the sum awarded the owners as the value of the property.</p> <p>7. Same—Value of leasehold interest.</p> <p>In arriving at the amount to be deducted from the value of the property on account of a leasehold interest, the rent reserved in the lease should be deducted therefrom and given to the owner of the property.</p> <p>8, Same—Effect upon covenants contained in lease.</p> <p>Proceedings to take land under the right of eminent domain do not destroy the covenants contained in a lease,</p> <p>9. Who can take benefit of modification,bule of law made by special</p> <p>AGREEMENT.</p> <p>The fact that as between certain parties, on account of their agreement or relation, a rule of law is modified as to them does not extend to or change the rule for the benefit of persons who are strangers thereto and who have acquired no rights or liens As to those persons the general rule finds force.</p>

<p>1. Pleading—Complaint—When it alleges a cause op action.</p> <p>The complaint contained a general allegation that the plaintiff is a corporation organized under the National Banking Act of the United States. That the defendant made his promissory note for $5,000, payable to the plaintiff, at said bank, for value received, with interest. Following the note and on the same paper on which it is written, is an agreement which recites that the defendant “ having deposited with the bank, as collateral security,” a certain certificate of stock “ giving the plaintiff full power in case of default in the payment of the note at maturity, to sell the stock at private or public sale, and apply the proceeds to the payment of the note.” The complaint further alleges that the note was not paid at maturity, and that the stock has not been sold or the lien foreclosed, and demands judgment for $5,000, and that the lien upon the stock, be foreclosed, etc. . On demurrer held, that the complaint alleges a good cause of action.</p> <p>2. Same—When corporation is a party—What a compliance with Code Crv. Pro. § 1775.</p> <p>The complaint in this case alleged in effect that the plaintiff corporation was organized under the laws of the United States. It averred that the plaintiff had done business in Buffalo, N. Y., upward of ten years. The name of the plaintiff “Farmers and Mechanics’ National Bank, of Buffalo,” is recited in the complaint. Held, that there was sufficient to fix the location at Buffalo, N. Y. That the complaint complied with the requirements of Code Civ. Pro., § 1775.</p> <p>3. Same—Right of action.</p> <p>It does not follow from the fact that the plaintiff had the right under the agreement to sell the stock without action, that he cannot come into court and ask its direction in this matter.</p> <p>4. Same—Distinction between legal and equitable causes of actions construed—May be united in same complaint—Code Crv. Pro., § 484. %</p> <p>A plaintiff may now, under Code Civ. Pro., §484, unite in the same complaint two or more causes of action, whether or not they are such as were formerly denominated legal or equitable, or both. Although calling for a different manner of trial, they may still be joined in the same complaint.</p> <p>5. Same — Demurrer — When demurrer for insufficiency can be MAINTAINED.</p> <p>A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all of the facts alleged, it presents no cause of action whatever.</p> <p>5. Same—Imperfect or informal allegation of facts not a ground for.</p> <p>It is not a ground of demurrer that the facts are imperfectly or informally alleged.</p>

<p>1. Pleading—Complaint—When it does not state a cause op action POR BREACH OP CONTRACT.</p> <p>The complaint in an action to recover for breach of contract alleged that one of the plaintiffs owned a dower interest in certain premises and the other a two-third interest in the same premises. That being such owners and being in possession of the premises defendant entered into an agreement with them whereby he was to transact their business, pay all back taxes then due upon the premises, and all existing claims against the same, for which he was thereafter to take security; that by way of inducement to perform said acts defendant agreed that plaintiffs ■should reside in and exclusively occupy the upper story of said premises during the life-time of W. without cost, rent or expense to the plaintiffs. That thereafter defendant procured the plaintiffs to execute and deliver to him a mortgage upon the premises. That defendant subsequently caused said mortgage to be foreclosed and the premises sold, he becoming the purchaser. That he subsequently caused plaintiffs to be removed from the occupancy of said premises by a writ of assistance. On demurrer, Meld, that the complaint did not state facts sufficient to constitute a cause of action; that no consideration was alleged upon which a promise could be based.</p> <p>2. Same—Complaint-to be taken as a whole—A judgment must be regarded AS CONCLUSIVE AS LONG AS IT STANDS.</p> <p>The complaint is to be taken as a whole in its construction. As a whole-it shows that the plaintiffs were ousted of possession by judgment and writ authorized by law, and so long as that stands it must be regarded as conclusive upon their rights.</p>

<p>1. Practice—Appeal prom motion denying a new trial upon the judge’s minutes—What case must show.</p> <p>When a verdict is sought to be set aside as being against the weight of evidence after a motion has been made for a new trial upon the minutes, it is essential that the case upon appeal states that it contains all the evidence given upon the trial; otherwise the court will assume that there was evidence sufficient to warrant the verdict rendered.</p> <p>3. Same — Appeal prom decision op court or referee—Review of findings—What case must contain.</p> <p>When it is sought, upon an appeal from the decision of a court or referee, to raise the question that a finding is against the weight of evidence, the case must show that it contains all of the evidence hearing upon the question of fact sought to he reviewed. If the case does not show this, it will he assumed that there was sufficient evidence to sustain the finding.</p>

<p>Custom—Pboof of to yaby contbact not competent.</p> <p>Parties are competent to enter into a contract and make such stipulation as to quality and variety of articles sold, as they think proper, and no general custom will affect or alter such a contract. It is not competent by proof of a custom to change either the contract of parties or to set aside established rules of law.</p>

<p>Pleading—Whebe plaintiff is a cobpobation, the complaint must ALLEGE WHETHEB IT IS FOBBIGN OB DOMESTIC—OBJECTION MAY BE TAKEN ON DBMUBBEB—CODE ClY. PBO., § 1775.</p> <p>Where the party plaintiff is a corporation, «the complaint must allege whether it is a domestic or foreign corporation, unless the court can determine, from the facts stated, to which class of corporations it belongs. Objection to the complaint on this ground may be taken by demurrer.</p>

<p>Pleading—Complaint—Sueeiency op—Allegation oe greater injury INCLUDES LESSER.</p> <p>In an action for damages caused by defendant’s maintaining a fence, along a twenty foot strip of land opposite the Exchange Hotel and so neglecting to maintain an opening for the convenient access of passengers and their baggage to and from the premises as they had agreed and were bound to do by the terms of a certain deed, Held, that the fact that the complaint alleged that the plaintiff’s damage was caused by the defendant maintaining a fence along the twenty foot strip does not affect the plaintiff’s right to recover under his pleading, so long as it includes the space mentioned in the deed which was to be kept open; that the greater includes the less; that it was of no consequence so far as the question of damages for not maintaining the opening was concerned, that the plaintiff had alleged that the defendant had utterly failed to comply with its agreement and had built a fence the entire length of the twenty foot strip.</p>

This action was brought for alleged negligence on the part of the defendant, causing the death of the plaintiff’s husband, John Ford, who was employed by the defendant as a switchman, by reason of a heavy timber falling upon him from a car loaded with lumber by the defendant while he was standing at the switch which Re was employed to tend. The cars used on this occasion Ry the defendant were gondola cars, some of the witnesses calling them coal cars.

<p>1, Judgment—How far conclusive.</p> <p>A judgment is only conclusive upon the point which it professes to decide and of matters which it was necessary to decide, or which were necessarily embraced within the issues.</p> <p>3 Same—When not a bar to another action.</p> <p>The defendant herein brought an action against the plaintiff herein to-recover certain money paid on a contract, alleging a breach in the performance of the contract. The defendant in that action admitted the payment of the money and the demand for repayment, but set up that it was paid for work, labor and services, and denied all the other allegations in the complaint. This action was brought to recover the balance due under said contract for work, labor and services. Held, that the other action was not a bar to this action. That the defendant in that action (the plaintiff in this) was not bound to plead the unpaid sum due upon the contract and ask for an affirmative judgment. That he might do so or he could resort to a cross action to recover them.</p>

This action is brought to recover damages for the construction, by the defendant, of a raised roadway or embankment in Commercial street, opposite plaintiff’s premises. The roadway became necessary in order to carry the street over the defendant’s railway, constructed above grade in Water street, which is intersected by Commercial street.

Prior to 1874, one Henry T. Gillett carried on business as a wholesale and retail liquor dealer at Buffalo. For a portion of the time his son, Albert A. Gillett, and John G. Guenther were partners with him, under the firm name of Henry T. Gillett & Son. Albert A. Gillett died, and the business was then conducted by the surviving partners, each having an equal interest.

Statement of facts made by Hatch, J. : About the 5th of September, 1887, the defendants ordered from plaintiffs three carloads of coal, to be used in burning brick, and to be delivered upon the Gilbert switch, near defendant’s brickyard. The three carloads were taken to the switch, but not being promptly unloaded, they were removed to the dock of Wicks & Co., and there unloaded.

<p>1. Husband and wife—Dower—To what subject—1-Iow measured.</p> <p>A wife does not acquire her incohate right of dower in any manner as the product of her contract of marriage, but by institution of law, the extent of her interest is measured hy that of her husband, and is subject to a purchase-money mortgage, or other incumbrance, that would diminish the interest of the husband.</p> <p>3. Mortgage—When regarded as purchase-money mortgage—Freed FROM INCHOATE BIGHT OF DOWER.</p> <p>The defendant, August, purchased the premises in question in 1883, and built a house thereon. The entire purchase-price paid by said defendant for said land, together with the money with which he erected thereupon, were . loaned and advanced to him by the plaintiff, under and pursuant to an agreement made by and between plaintiff and defendant at the time of the purchase that, in consideration of said loan, he would execute and deliver to the plaintiff, to secure her for the money so loaned, a mortgage upon the land for which the money was paid, The said August married thereafter, and after such marriage executed a mortgage to plaintiff, pursuant to said agreement; but the defendant, Minna, his wife, refused to join in said mortgage. On proceeding to foreclose said mortgage, Held, that the mortgage having been executed in fulfillment of the oral agreement, is to be deemed the same security, it would have been if executed at the time the purchase-money was advanced, and may be regarded the same as a purchase-money mortgage or as a mortgage which became a lien at the time when the husband agreed to execute it.</p>

This action is brought to recover damages for depriving plaintiff of the right of access to, from, and upon a certain strip of land. The plaintiff is lessee of a certain hotel and premises situate upon the corner of Exchange and Michigan streets in the city of Buffalo.

<p>Partition—Infant—Application for appointment of guardian—Service of summons—Presumption—Code Civ. Pro., § 437.</p> <p>Where in an application made for the appointment of a guardian for an infant in proceedings to partition real estate, it appeared in the petition that the minor was fourteen years of age and upward, and that no order was made, with the order appointing the guardian, requiring that a copy of the summons be also delivered in behalf of the minor to a person designated therein, pursuant to Code Civ. Pro., § 437, it may be presumed that the court in passing upon the application did not consider it necessary to order further service. Modifying same case (15 N. Y. State Rep., 157).</p>

<p>1. Evidence—Admission—Rendering bill for services.</p> <p>The rule is that rendering of a bill for a fixed amount charged for services is an admission upon the part of the person rendering the bill that the amount thereof is the sum owing, and prima, facie as against him; that the services are of the value as therein stated, and that his right to recover is limited to that sum. But the bill is by no means conclusive upon the person rendering it; he still has the right to show that his services were worth, in fact, more, and that either by mistake or otherwise the bill was rendered for a less amount.</p> <p>2. Practice—Municipal court of Buffalo—Court has authority to CHARGE THE JURY—CODE ClV. PRO., § 2868—LAWS 1880, CHAP 344.</p> <p>Under Code Civ. Pro., § 2868, and Laws 1880, chap 344, § 6, the municipal court of Buffalo possesses authority to charge the jury, but the justice is not bound to instruct or charge it. If, however, the justice chooses to do so, and commits an error therein, it is ground for reversal.</p>

<p>1. Contract—Fraud in procuring its execution—Remedy of party defrauded—Election of remedies.</p> <p>Where fraud is ¡perpetrated in procuring the execution of a contract,, the person against whom the fraud is committed has an election of remedies. He may rescind the contract and bring his action to recover back what he has parted with, or he may affirm the contract, securing to himself all the benefits to be derived therefrom, and bring his action for whatever damage he has sustained by reason of the fraud.</p> <p>2. Lease—Execution procured by false statements—Lessee may affirm AND SUE FOR DAMAGES—RIGHT NOT WAIVED BY PAYMENT OF RENT.</p> <p>The defendant made false statements with respect to the heating capacity of a furnace then in the house which plaintiff was about renting, and the plaintiff relying thereon was induced to rent said house from the defendant and execute a lease thereof. After the execution of the lease, plaintiff entered into possession and moved into the said house, not then knowing that the furnace would not heat the house, and continued to occupy and pay rent according to the provisions of the lease. Held, that, when plaintiff discovered that defendant’s statements were untrue he was, not bound to remove from the house. That he had the right to remain,, enjoying the fruits of his bargain, so far as he was able, and call upon the1 defendant to make good what he had suffered. That his payment of rent, was not a waiver of his rights.</p> <p>3. Same—Measure of damages.</p> <p>The measure of damage was the difference in the rental value between, the premises as received by plaintiff and such as he would have received had they been as represented.</p> <p>4. Same—When damages could be ascertained.</p> <p>The damages could be measured and ascertained on the first day of the term or the last day with equal ¡precision and without change. The damage did not depend upon the failure of a person to act to prevent injury. People v. Stephens, 71 2ST. Y., 527, distinguished.</p> <p>5. Same—Evidence—Oral evidence when admissible.</p> <p>It was competent to receive paroi proof of the statements of the defendant made with respect to the capacity of the furnace.</p>

<p>t. Statute of limitation—Payment to take debt out of—By whom made—Agency—When agent has authority to make.</p> <p>A payment which is to operate as an acknowledgment of a debt so as to suspend the operation of the statute of limitations must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise or to perform for the party the very act which is to be the evidence of a new promise.</p> <p>2. Same—Delivery by debtor of note, etc., of third party as collateral security—Suspends operation of statute.</p> <p>The delivery by a debtor to a creditor of the note, bill or other obligation of a third person as collateral security, is as much of an acknowledgment of the debt so secured, as a payment is and is equally effectual to suspend the operation of the statute of limitations.</p> <p>3. Same—Delivery of policy of life insurance as collateral security, SUSPENDS OPERATION OF STATUTE.</p> <p>By a written assignment the defendant assigned a policy of life insurance to the plaintiff, as further security to the notes in suit. The annual premiums on this policy were regularly paid by defendant to the present time, and the renewal receipts therefor down to 1885, annually sent by defendant to plaintiff, to whom the policy was also delivered at the time of the assignment. Held, such an acknowledgement of defendant’s indebtedness to plaintiff on the note as would save them from the operations of the statute.</p> <p>4. Same—Effect of payment of premium of policy so delivered by DEBTOR.</p> <p>The payment of those premiums by the defendant was for the benefit of the plaintiff, and the delivery of the renewal certificates was as unequivocal an acknowledgment of the indebtedness and promise to pay as the delivery of the policy thereof.</p> <p>5. Insurance (life)—Policy' oe—Effect of delivery as collateral to NOTE—How SUM SECURED COLLECTED OUT OF POLICY.</p> <p>An insurance policy is a chose in action, of the same nature as a note, bond or obligation to pay money not yet matured. The transfer of such securities as collateral to a debt is a pledge, and unless there is express authority given by the pledgor so to do the pledgee cannot sell them, but must resort to their collection when due.</p>

<p>1. Will—Probate of—When admitted—Code Civ. Procedure, §§ 2618, 2620.</p> <p>Before a written will can be admitted to probate, two at least of the subscribing witnesses must be produced and examined, if so many are within the state and competent and able to testify. If all the subscribing witnesses to a written will are dead * * * the will may, nevertheless, be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will on the trial of an action. Held, that the “ other circumstances ” here referred to are such as will warrant a finding by the court or jury, that the other requirements of the statute have been complied with.</p> <p>2. Same—When decree admitting will to probate justified.</p> <p>Proof of the handwriting of the testator and of the subscribing witnesses to a full attestation clause is regarded as the most important and conclusive fact on the trial of an issue as to a proper execution of a will. Such evidence in connection with the other circumstances to prove the due execution of a will justify a decree admitting it to probate even against the positive evidence of the subscribing witnesses.</p> <p>4. Same—Genuineness oe signatures.</p> <p>In this case the only issue upon the proof is as to the genuineness of the signatures of the testator and subscribing witnesses. After a full review of the testimony. Held, that this issue must be determined in favor of the proponent, and the will admitted to probate.</p>

<p>Corporation—Liability of stockholders under Laws 1848 chap. 40— When personal liability terminated.</p> <p>The personal liability imposed on the stockholders of a corporation, organized under Laws 1848, chap. 40 by see. 10 of said act is not terminated by either the paying in of the capital stock or the making and. recording of the certificates alone. Both are required and the one is as-imperative as the other. Two things are requisite and equally requisite to-terminate the liability of the stockholders, viz.: the whole amount of the capital stock must be paid in and the certificate of that fact must be made and recorded.</p> <p>2. Same—Dissolution of—Failure to pay capital stock.</p> <p>The statute does not declare that the corporation shall be dissolved by reason of failure to make and record the certificate, but for omission to-pay in the capital stock within two years from the incorporation.</p> <p>3. Same—How dissolved.</p> <p>The dissolution of a corporation must be judicially ascertained and. declared.</p>

The will in question was admitted to probate on the 16th December, 1886, and it is now sought to have the decree admitting the same to probate vacated.

<p>Appeal from an order of the surrogate of Kings county, overrulling certain objections to the account of the executors, and directing the payment of a certain claim.</p>

<p>Assessment—Reduction of—Construction of laws 1880, chapter 550, §6.</p> <p>Proceedings were instituted by plaintiff before the assessment commissioners, who derived their power under Laws 1880, chapter 550, in order to secure a reduction of the amount of a certain assessment. The certificate reducing the assessment was actually filed March 3, 1886, but was dated March 25, 1884, the day on which the decision in the test case had been made by the commissioners. Held, that under section 6 of said act, which provides that the tax shall be the amount fixed by said certificates, with interest thereon, from the date thereof, and no more, etc., means from the date of filing of the certificate.</p>

<p>Creditors’ Bile—Husband and wife.</p> <p>Where a wife allows her husband to use her private funds as his own, placing them, in his hands without giving him any directions as to their use, or in any way limiting his control of them, and never calls upon him to account, she cannot as against a judgment creditor, have him declared her trustee, and enforce a claim as cistui que trust to moneys deposited in his name, “in trust,” when it appears that all moneys, from whatever source received by him, are deposited under the same account. The relation between them is simply that of debtor and creditor.</p>

<p>Creditors bill—Amendment after trial—When allowed.</p> <p>When a judgment creditor seeking to reach a fund in the hands of a third party states in her complaint that she sues on her own behalf and for such other creditors, similarly situated, who may come in, etc., this limitation does not prevent a judgment in favor of the plaintiff alone, if no other creditors have come in, and an amendment striking out the words of limitation will be allowed after trial and before entry of judgment.</p>

<p>1. New York Stock ' Exchange membership—Expelled member of— Right to injunction.</p> <p>The constitution of the New York Stock Exchange provides that when any member becomes insolvent he shall b'e suspended until he settles with his creditors; also, that a suspended member may apply to the committee on admission for readmission as a member on showing that he has settled with his creditors within a year from the time of his suspension or such further time as the governing committee may grant him for that purpose. Also, that if a suspended member shall fail to make a settlement with his creditors within one year from the time of his suspension or an extension of his time to make such settlement, his membership shall be disposed of by the committee on admissions, etc. Pursuant to these provisions, the plaintiff was duly suspended, and due notice of his suspension was given. More than a year had elapsed since such suspension, and the plaintiff had not settled with his creditors, or had his time for that purpose been extended nor had he applied for readmission as a member of the exchange.</p> <p>. Held, that the plaintiff was not entitled to an injunction.</p> <p>2. Same—Trial.</p> <p>On becoming a member of said exchange the plaintiff agreed to be bound by the constitution of the exchange, and that constitution provides the cases in which, and the general method by which a member may be expelled. Held, that the plaintiff was not entitled to a trial conducted in accordance with the rules which govern the proceedings of the regular courts of the land, but only to a trial prescribed by the constitution to which he voluntarily subscribed. That if he had such trial he is entitled to nothing more.</p> <p>3. Same—Waiver of rights by failure to object.</p> <p>The plaintiff during all the proceedings against him taken by the exchange acted under the advice of his counsel, and no objection was raised by him to the regularity or validity of the proceedings by which he was expelled until nice years afterwards. He did not during the course of proceedings against him request to be confronted with the persons examined by the investigating committee, or ask for the privilege of cross-examining them, or offer any testimony or evidence in his own behalf He was given a full opportunity to examine said testimony, and does not now claim that the governing committee did not act honestly and fairly, or that their action was influenced by any ill-feeling or bias against him. Held, that by omitting to claim the right to make a copy of said testimony or to be confronted with the witnesses against him, arid submitting his case to the governing committee in the manner he did, he waived any rights he had. in the premises.</p> <p>4. Courts will not decide abstract questions of right.</p> <p>Courts of justice do not sit for the purpose of making declarations on abstract questions of right. They exist for the purpose of determining actual controversies by a judgment capable of being enforced.</p>

<p>Will—Insertion of clause after execution of—Effect of.</p> <p>. After the testatrix had signed the will offered for prohate, fully understanding all of its contents and expressing her assent thereto, and it had been fully made and executed, the testatrix stated to the scrivener that her household furniture, etc., she wished to bequeath to Jane Myers, except a bureau, which she was to give S. The draftsman accordingly wrote these ■directions on a separate piece of paper, read what he had written to testatrix and stated where he would paste that in the will when he reached home. It was produced upon the trial with this interpolated clause pasted on the paper propounded (the instrument having been cut into to permit that clause to be inserted in the proper place as the seventh clause of the will). There was no republication of the will after that clause had been written; it was not in anyway attached to the will at the time of the execution, nor in the presence of testatrix or the witnesses. The proponents offered the will for probate exclusive of this interjected portion. Held, that it should be admitted to probate. That the attempted change was an unsuccessful attempt to make a codicil to the will. That the will was not thereby rendered invalid.</p>

On the 7th day of July, 1876, the plantiff commenced an action against the defendant for an accounting. The complaint, among other things, alleged that plaintiff was the owner of the canal boat “Dr. M. S. Kittinger.” That in 1873, plaintiff contracted to purchase of the defendant, the canal boat “Jay Pettibone,” together with four-mules and harness, for the sum of $6,000.

On a sale by Eichard V. Harnett, in partition proceedings, of portions of the estate of the late Nicholas G. Kortright, the plaintiff Lahey was the purchaser of premises for §36,300, and the plaintiff Marshall purchased other premises for §44,800.

<p>1. Referee in partnership accounting—Mat appoint receiver to marshal ASSETS.</p> <p>A referee appointed to hear and determine an action for an accounting between partners, reported among other things, that by reason of certain uncollected and unconverted property and assets and unpaid debts, no full and final account or complete determination of the rights of the respective parties can now be made, and found that plaintiff was entitled to an interlocutory judgment appointing a receiver, and directing the parties to deliver to him all the property books, etc., and that on the final account of such receiver, a further hearing and accounting be taken before said referee and a final judgment and distribution be had thereon. Held, no error, notwithstanding the fact that the complaint did not ask for a receiver.</p> <p>2. Same—Code Civ. Pro., § 713.</p> <p>Although it does not clearly appear by the referee’s report, that there is danger of loss, etc. (section 713, Code Civ. Pro.), yet as there could be no final decree until the assets are marshalled and converted into money, it may be reasonably inferred from the referee’s report, that the property was in danger of loss or waste if not disposed of, collected and converted into money.</p>

<p>1. Counter-claim—Adultery set up in, in action for limited divorce— Code Civ. Pro., § 1770.</p> <p>In an action for a limited divorce, on the ground of ill treatment, the defendant set up as a counter-claim the allegation of plaintiff’s adultery. Held, that under Code Civ. Pro., § 1770, the allegation, if properly made, constitutes a counter-claim, upon which defendant may demand absolute divorce. ,</p> <p>2. Same.</p> <p>Omission of allegation in counter-claim that the adultery was without the connivance, privity or procurement of defendant, cannot be considered on demurrer, as it may be supplied by proof on trial.</p>

<p>Taxes and assessments—Assessors should consider net earnings of RAILROAD.</p> <p>Assessors in determining value of railroad property should take into account the cost, location, feeders, probable increase of business, and should also ascertain aggregate net earnings of the road, and they should do this with knowledge of the road as a whole, and of its business earnings and ordinary expenses.</p>

<p>Creditor's action—Fraudulent conveyance—Evidence or co-conspibaTOB ADMISSIBLE</p> <p>Where a debtor, after suit begun, sells his real estate, and on examination in sup, pro. in another action swears, in the hearing of one of the purchasers, who had knowledge of all the proceedings, that a week before he had received payment of the notes given for said real estate, years before they were due, and had lost the money, Held, that as the existence of a conspiracy to defraud had prima facie been established, the declarations of the co-conspirator in furtherance of their common purpose were admissible.</p> <p>2. Same—May contradict unfriendly witness—Code Civ. Pro. § 1003.</p> <p>The alleged purchaser was called by plaintiff, and testified that he did not remember telling the debtor's lawyer that he could continue to live on the property—and plaintiff was allowed to show by the lawyer that at the purchaser’s request he talked with the judgment-debtor about the conveyance. Eeld, no error, as, if it was a relevant fact, he was not concluded by defendant’s testimony, and if he was simply contradicting the witness as to the interview, under section 1003 Code Civ. Pro. the ruling should be disregarded though erroneous.</p>