Volume 18 — Abbott's New Cases

I. March, 1886. Motion to cancel decree revoking letters testamentary, and for leave to discontinue proceedings.

<p>1. Attorney's lien upon cause of action for his compensation.] Under section 66 of the Code of Civil Procedure, the plaintiff’s attorney has a lien upon the actual cause of action, whether in tort or on contract, for the whole compensation to which he is entitled for his services in the suit.</p> <p>2. The same; extent of compensation.] The extent of the compensation of an attorney for his services is governed by the agreement existing between him and the client, and if it is shown that all was just and fair and that the client acted understandingly, the contract must be upheld and enforced, and the attorney’s lien protected to the full extent, although by it his compensation may have been made contingent upon success, and payable out of the proceeds of the litigation.</p> <p>S. The same ; special agreement upheld as fair.] After recovery of a verdict of §10,000 for the plaintiff in an action for damages for a personal injury, and before entry of judgment thereon, the counsel who tried the case, by agreement with the plaintiff and his attorney, then of record, was substituted as the attorney of record, and thereafter acted as such in entering judgment, and upon appeal. Held, that an agreement between him and the plaintiff and his former attorney that he should receive $5,000 and costs and interest as compensation for his services in the suit, of which agreement the plaintiff never complained, but steadily insisted upon in favor of the attorney, could not be pronounced unfair; and that the defendant could not claim the contrary, having settled with the plaintiff directly, after express notice of the contract, and of the precise amount of the lien.</p> <p>4. The same; mode of enforcing lien.~\ A satisfaction of the judgment having been made upon a satisfaction piece executed by the plaintiff to-the defendant after notice of the lien, without the attorney’s knowledge, —Held, that the satisfaction must be vacated and set aside, upon motion of the attorney, leaving the judgment to stand for the amount of his lien, with liberty to him to prosecute a pending appeal by defendant from the judgment, and in the event of an affirmance of the judgment, to enforce the same to the extent of his rights in the same manner as if no settlement between the plaintiff and the defendant had been made.</p>

<p>Motion to set off judgments ; attorney’s lien.] A judgment for costs in favor of defendant, entered upon affirmance on appeal of a judgment sustaining his demurrer to one of three causes of action in the complaint, belongs to his attorney, and hence the plaintiff cannot have the same set off on motion against the judgment recovered for the plaintiff upon the other causes "of action.</p>

Petition of William I. Clark, for the judicial settlement of liis accounts as executor of the last will and testament of George B. H. Gillespie, deceased.

Charles Doll and another sued William Noble for the balance due upon a contract for varnishing and polishing the woodwork in certain houses of defendant.

Plaintiff brought this action to remove an alleged cloud on the title to real property. The cause was brought to trial at a Special Term, before the court without a jury, and judgment was ordered in favor of the defendant, which was entered on April 28, 1886. On the same day copies of the judgment and the order dismissing the complaint, and notice of the entry of each, were served upon the plaintiff’s attorney.

<p>1. Reference of partly tried cause.), Where the court on the trial of the cause finds that one of the parties has a right to recover on condition of a restoration or redemption, and the amount requisite to be paid is not ascertained, the court may order a reference, and postpone the settlement of findings until the referee’s report has been received.</p> <p>2. Findings and requests to find, when to be submitted.] In this action, which was to foreclose mortgage bonds, defendants impeached the bonds, hut in the opinion of the court upon the trial, were not entitled to avail themselves of the defense they set up without restoring what had been received for the bonds ; and a reference was ordered to ascertain the facts necessary to fix the terms granting such relief. Held, that the case was not analogous to a reference to compute the amount due after judgment in foreclosure, but the reference should be completed before the final submission of findings or requests to find.</p>

Reference to ascertain and report the amount due to the defendants and claimants, George W., Charles T., Frank P.j and Charles H. Crouch, or to any other person, which is a lien upon the surplus moneys herein, and to ascertain the priorities of the several liens thereon, under rule 64 of the General Buies of Practice.

Motion by defendant for a bill of particulars. The action was for libel contained in a circular published by defendant at divers times and places throughout the several States and Canada during the years 1882, 1883, 1884 and 1885, by reason of which, plaintiff averred, that it had been greatly injured, and had lost many sales and profits which would otherwise have been made in its business.

Trial by the court. This action was brought by Eliza Johnston and others, all the surviving brothers and sisters and sole next of kin of Emma Marinus, deceased, against George E. Marinus,. the husband of the deceased, the Greenwood Cemetery Association, and the Board of Health of the City of Brooklyn, to enjoin defendant Marinus from removing the body of the deceased from the receiving vault of Greenwood Cemetery, and interring it in his lot in another cemetery and the other…

Trial by the court. Action by Julius T. Asch and others, as executors, etc., of the last will of Jacob Asch, deceased, against Estelle Asch, individually, and as executrix, etc., of said deceased, and another, to obtain a judicial construction of the will of the deceased.

Trial by the court. The action was brought by Sarah Hermanee against Mary F. Mead and others to obtain a judicial construction •of the will of William 0. Fields, deceased.

<p>1. Grand jury; examination of accused.'} The grand jury have not power to require the accused to appear before them, even for the purpose of giving opportunity for voluntary explanations.</p> <p>*3. Indictment quashed for error of grand jury.} If the grand jury require the accused to appear before them, an indictment found after receiving even his voluntary statements made upon being informed that there was no obligation to answer, should be quashed.</p>

Petition of Charles E. Bentley for an order directing the respondents, the Commissioner of Public Works and the Superintendent of the Burean of Incumbrances, of the city of New York, to take immediate steps to revoke certain permits issued by the Mayor’s Bureau of Permits to place show-cases on the sidewalk in front of certain premises on Fourteenth street, and to remove the show-cases placed on the sidewalk under such permits.

William M. Elias brought this action against Victoria Sutherland and others to restrain them from exhibiting their hair in the premises occupied by them on Fourteenth street, in the city of New York.

The action was brought by Samuel Bingham and another, as administrators, etc., against the Marine National Bank of the City of New York, and the receiver of the hank, upon a certificate of deposit. The plaintiffs recovered, and, upon appeal by the defendants, the judgment was affirmed. The defendants now move for a re-argument. The material facts fully appear in the report of the decision on appeal, in 17 Abb. N. C., 431.

I. April, 1886. Demurrer to complaint. The action is brought by Charles Hauselt, a judgment creditor of John H. McCann, deceased, against the heirs of the deceased and their grantee of a portion of the real estate descended to them, to subject the property to the payment of the judgment for a deficiency arising upon the foreclosure of a mortgage made by the deceased.

<p>1. Will; direction to pay debts.] The obligation of a husband to pay to his wife a sum which by an ante-nuptial contract he agreed she should receive in lieu of dower, etc., in case she should survive him, is a debt, within the meaning of the usual clause of a will directing the payment of debts.</p> <p>2. Marriage settlement; burden of proof] The relation of parties betrothed is one of confidence, especially on the part of the woman; and an ante-nuptial agreement by her to release all claims on his estale in consideration of a grossly inadequate sum, if made without opportunity of consulting others, and in ignorance of the circumstances of the intended husband, throws the burden of proof of fairness, etc.;'in her action for dower to which the contract is set up as a defence, upon the representatives of the husband, especially where it appears that the engagement of marriage preceded the making of the contradi.</p> <p>8. The same; recital.] The recital in an ante-nuptial contract that a marriage is contemplated between the parties, and that the agreement is made in consideration thereof,'supports the inference that the marriage and release were in consideration of the stipulated provision for the wife.</p>

Charles S. Turner brought this action against Edwin Conant and the Midland B. E. Co. of New Jersey, the complaint alleging that plaintiff, being the owner of two mortgage bonds of New Jersey Midland B. E. Co,, numbered respectively 1857 and 1858, delivered them in 1877 to a committe or trustees of the bondholders of the company, appointed to carry into effect a plan for the reorganization of the company, and that the bonds were deposited by the trustees with the Central…

Appeal by the defendant from a judgment for specific performance recovered upon a trial at Special Term, Rudolph Bolim† brought this action against Michael Fay to compel the specific performance of a contract by defendant to purchase the premises known as No. 33|- Stanton street in the city of New York.

Petition for a final accounting, etc., of Elbridge T. Gerry, as sole remaining trustee in succession of certain trusts created by the last will and testament of Peter P. Goelet, deceased. The parties to this accounting were Hannah G. Gerry, Robert Goelefc and Ogden Goelefc, the parties entitled in remainder upon the death of Jean B. Goelet, and Elbridge T. Gerry, Robert Goelefc, and Ogden Goelet, as executors of said Jean B. Goelefc, lately deceased.

<p>1. Amendment of summons and complaint; name of plaintiff.] Where an action for goods sold to the defendants by a party carrying on busi- , ness in the name of a deceased person is begun by mistake in the name of the latter, the court has power to allow an amendment of the title of the summons and complaint so as to give the name of the seller, “trading under the name of” the deceased.</p> <p>The rule prohibiting an amendment by the insertion of the name of a party other than the one who brought the action, does not apply to preclude an amendment to correct an error so that the name of the person in whose behalf the action was brought will be properly described.</p>

Motion by defendant to change the place of trial from New York county to Erie county. Daniel Wadsworth and another sued Frank L. Georger for goods sold and. delivered. The summons and complaint designated New York county as the place of trial.

<p>1. Place of trial; local action.] An action to set aside as fraudulent an assignment for benefit of creditors, which includes real estate of the assignor, is a local action within section 983 of the Code of Civil Procedure, and must be tried in the county where the real estate or some part thereof is situated.</p> <p>2. The same; prayer of complaint.] So held, and the motion granted notwithstanding the complaint was amended after service of the motion papers so as to demand merely that the assignment be adjudged fraudulent and void as against the lien of plaintiffs’ attachment upon a stock of goods included in the assignment.</p>

<p>Consolidation of actions triable in different counties.] A party cannot change the place of trial of any action triable in New York county by procuring an order in an action triable in Kings county consolidating the two actions. Before moving to consolidate, he should move in New York county for an order changing the place of trial to Kings county.</p>

Appeal by the plaintiffs from a judgment of the General Term of the City Court of New York, affirming a judgment for the defendant, entered upon a verdict directed at the trial.

Habeas corpus. The petitioner, in a proceeding for a final accounting by him as trustee, was directed to convert certain securities belonging to the trust estate into cash, and apply the proceeds to the payment of a certain claim upon the fund.

I. Special Term, September, 1886. Motion for discharge of the relator Lust and defendant Salomon from imprisonment. ’ It appears from the petition for the writ of certiorari and from the sheriff’s return thereto that the relator was arrested and put into the common jail of the county of Mew York, by virtue of an execution against his person issued upon a judgment in an action for goods sold in which an order of arrest was granted and which was never vacated or modified.*…

Motion that the defendant be discharged from the custody of the sheriff of the city and county of New York. Judgment was rendered in favor of plaintiff on January 16, 1886. An execution against the property of the defendant was issued to the defendant February 18, 1886, and returned unsatisfied March 27, 1886. An execution was also issued to the sheriff April 24, 1886, which was on the same day returned unsatisfied.

I. Special Term, March, 1886. Trial of demurrer. Garret Milk brought this action against Benjamin Waite and Jdarrisen Judd, to foreclose a mortgage upon certain real estate executed by Waite to plaintiff and defendant Judd.

<p>Probate of the will of Francis W. Tracy, deceased. Settlement of decree.</p>

<p>Costs in certiorari proceedings to review assessment of personal tax.] Upon a final order in favor of the respondents in certiorari proceedings, under chapter 269 of the Laws of 1880, to review an assessment of the personal property of the relator for the purpose of taxation, the respondents, under section 6 of that Act, are entitled to costs as in an ordinary action. The provisions of section 2143 of the Code of Civil Procedure do not apply.</p>

I. Special Term;. Jcmuary, 1886. Motion for bill of particulars. Henry A. Deimel and another brought this action of replevin against William It. Olney, alleging merely a wrongful taking of trunks, the property of the plaintiffs, and a wrongful detention thereof after due demand.

James M. Selover brought this action against Asbury Hat-pending for damages for breach of an oral contract, under which it was alleged defendant engaged the plaintiff to buy five thousand shares of a certain mining stock at the market price, and made the guaranty which is quoted in the opinion of the court. Further material facts appear in the opinion.

Trial before Hon. Zerak S. Westbrook, county judge, presiding, and a jury. The action was brought to recover damages for injuries to plaintiff’s horse in jumping upon a sharp barbed-wire fence erected between the adjoining farms of the parties by the defendant, and being a part of the line fence that he was bound to maintain.

Motion to vacate an order of arrest. The Old Dominion Steamship Co. brought this action against John G% McKenna and four others to recover $20,000 damages, alleged to have been sustained by the plaintiff through the unlawful action of the defendants in a recent Strike of’longshoremen in the port of New York, and in their attempt to boycott the plaintiff in its business as a common carrier.* At the commencement of the action, upon affidavits to the truth of the allegations in…

Trial by the court. James Cruikshank brought this action as executor of the will of John F. Delaplaine, deceased, against the devisees and legatees named in said will and the heirs at law and next of kin of the testator, to obtain a judicial construction of said will and to judicially determine the validity of certain of its provisions.

This action was brought for the construction of the will of Richard Delafield, deceased. Testator died November 5. 1873, leaving a will dated January 17 of the same year. He left a widow then aged sixty-two years, and six children, five daughters and one son, all unmarried adults, ranging from twenty-four to thirty-seven years of age, and all members of his family.

I. Special Term ; April, 1884. Motion by the plaintiff, and judgment-creditor, upon the evidence taken on examination of the comptroller of the city of New York, as a third party examined in proceedings supplementary to execution upon a judgment of John J. Nathans against John Satterlee and another, for an order directing the comptroller to indorse and deliver over to the sheriff, a check in his possession in favor of Satterlee, to be applied on account of the judgment.

<p>1. Return, of deposit- in lieu, of hail.] A defendant who has deposited money in lion of bail when arrested under an order of arrest, and who has stayed the execution of the judgment subsequently recovered against him upon his appeal therefrom, is entitled, under sections 583 and 584 of the Code of Civil Procedure, upon furnishing a sufficient undertaking for bail, to a return of the cash deposit made by him.</p> <p>2. The same; before final judgment.] A judgment which has been stayed by an undertaking given upon appeal therefrom, is not a final judgment within the moaning of section 585 of the Code of Civil Procedure, providing that if final judgment is rendered for the plaintiff, money deposited by defendant in lieu of bail, must be applied in satisfaction of the judgment.</p>

Tliis action was brought by Daniel Goldsmith against the Union Life Insurance Company, a foreign corporation, and Lina Manly, to reform two policies of insurance taken out by the plaintiff upon his life, and expressed to be for the benefit of his wife, Lina Goldsmith, now the defendant Manly. The complaint was dismissed at the trial, upon the close of the plaintiff’s testimony. The grounds of the dismissal, and the further material facts, appear in the opinion.

Trial by the court. David A. Scott, as assignee of William C. Lawson for benefit of creditors, brought this action against Harrison Mills, sheriff of Orange county, to recover possession of goods taken by defendant under a levy of execution issued upon a judgment against Lawson. The assignment to the plaintiff, from the judgment-debtor was executed and delivered to the assignee on January 20, 1885.

The action was brought by plaintiff, Crisfield, as assignee of one Mann for the benefit of creditors, against Bogardus and others, for the value of property taken and sold by virtue of a chattel mortgage given by Mann to the defendants. Upon the trial at circuit, the jury found a.special verdict that the mortgage was executed in good faith, and without intent to defraud creditors of the mortgagor. 1 Defendants moved for judgment on the verdict.

Trial by the court. This action was brought by Yocum and others, against the defendant, a corporation carrying on the hotel business in the city of Brooklyn, to enjoin the operation of an electric plant, built in .the cellar of an extension of the hotel, for the production of electric lights for nse in the hotel.

Appeal by the defendant from a judgment for the plaintiff, entered after a trial at the special term. James S. Barron brought this action against the South Brooklyn Saw Mill Company to compel the defendant to issue to the plaintiff a certifícate for twenty shares of its capital stock, in lieu of one standing in the name of Luther Dock, who died at Philadelphia, Pennsylvania, on February 6, 1884.

<p>1. Service of summons by publication ; defendant's return before publication complete.] Where an order for publication of summons is duly and regularly made in an action in which an attachment is ¡ issued upon the ground of departure from the State with intent to defraud creditors, and the publication is continued for the period required by the statute, the return of the defendant to the State, before the time for publication expires, docs not affect the plaintiff's right to enter judgment upon his default, or require personal service of the summons upon him; and he can be permitted to come in and defend only as a matter of favor. †</p> <p>2. Affidavit of merits.] An affidavit of merits alleging that defendant “ has a good and valid defense upon the merits to the whole of said plaintiff’s claim in this action, and that he is not indebted to the plaintiff in the amount claimed in the complaint, or in any amount whatsoever,” is insufficient upon an application to open a default; but the court may, nevertheless, allow the default to be opened upon terms.</p>

Motion by defendant Postley for leave to serve a separate answer. Egbert Guernsey sued Hugh Cheyne, John Scott and Margaret S. Postley, as executors, and executrix, of Alexander F. Sterling, deceased, for services alleged to have been rendered as the physician of the decedent, between July 1, 1882, and February 6,1885.

Demurrer to partial defense. William Eobarge brought this action against the Central Vermont Eailroad Company, to recover $50.62 for work and labor performed by plaintiff for defendant upon its railroad in this State. The action was commenced October 22, 1886, by personal service of the summons and complaint upon William T. Short, managing agent of the defendant, at Malone, in this State.

I. Special Term / April, 1886. Trial by the court. The Central Trust Company of New York, as trustee under a mortgage made by the New York City and Northern Railroad Company, brought this action against the railroad company, and its receiver, and against Scott and Palmer, as trustees, under another mortgage made by the railroad company, and against Forrest and May, as trustees under a subsequent mortgage made by the railroad company, and against the New York Loan and…

Motions by defendant to confirm referee’s report, arid vacate temporary injunction; and motion by plaintiff to continue the injunction pendente lite. This action was brought by Eugene Kelly against Elie Charlicr to restrain the removal of certain property from a school building, known as the Charlicr Institute. The defendant offered for sale, at public auction, certain real estate, including the school building.

I. June, 1886. Appeal from a judgment dismissing the complaint. In 1879, Samuel McLean sued the St. Paul and Chicago Railway Company as the assignee of a cause of action for breach of contract. The defendant is a foreign corporation, created under the laws of Minnesota, and the contract in question Avas made out of the State, between the corporation and certain parties, all of whom were non-residents of this State.

Motion to vacate an attachment. The motion was made upon affidavits showing that the plaintiff resided in Missouri, and that defendant was a foreign corporation, and alleging that the canso of action was not one of those enumerated in section 1780 of the Code. The motion was opposed upon the ground that the defendant had served a notice of general appearance in the action.

<p>1. Deposition of party on special motion.] Upon a reference to ascertain and report the facts material to the determination of a motion by a purchaser at a sale on foreclosure to bo relieved from his purchase, the court has no power, upon the application of the purchaser, under section 887 of the Code of Civil Procedure, to issue a commission to take the testimony of a party to the action without the State, to be used upon the reference.</p> <p>2. The same.] A commission cannot be issued to take the testimony of a party to the action who is without the State, to be used upon a special motion made by one who is not a party to the action.*</p>

<p>Motion to vacate an order for the examination of a wit ness before trial.</p> <p>The action was brought by an attorney for professional services under an agreement by which it was alleged he was to have one half of the recovery in an action of crim. con. prosecuted by him on behalf of defendant Sears against one Barnes, the witness.</p> <p>After service of the summons upon defendant, and his appearance by attorney, but before service of the complaint, plaintiff procured ah order for the examination of Barnes before trial, upon an affidavit by plaintiff, in which he alleged a secret settlement and compromise of the crim. con. suit without the deponent’s knowledge, and for the purpose of depriving him of his compensation ; that he was ignorant of the amount paid by Barnes in settlement; that the witness resided in New York, and had an office therein for the regular transaction of business in person, “ and that as deponent is informed and verily believes, he is about to depart from the State; that as deponent is informed and believes, as part of' the secret settlement so made as between said defendant, — Sears and — Barnes, it was expressly understood and agreed that the said defendant — Sears would permit and allow his said wife--- to procure a divorce from him, and would put in no appearance, and would not oppose said action for divorce, and from investigations made by deponent, and from statements made to deponent by said Sears, deponent believes and avers that upon a decree for divorce being had in such action, the said Barnes and-(the defendant’s wife) intend to leave the State, and to reside abroad in Europe, thereby and by. reason of all the premises, deponent is in great danger of losing his testimony, unless the same is taken and perpetuated pursuant to statutethat deponent had been informed by defendant ■Sears of the commencement of an action by his wife against him for divorce ; that the testimony of Barnes was material and necessary to his case; that he desired by it to show the terms and conditions of the settlement between the parties, and that he intended to use the testimony upon the trial.</p> <p>contended that it was in effect an .order for the examination of a witness to enable the plaintiff to frame his complaint, and that the object was to find out whether in fact any payment had been made in settlement. Matter of Bryan, 3 Abb. N. C. 289, per Sedgwick, J. (p. 293): “ I am therefore of opinion that a witness cannot be examined for the purpose of enabling a plaintiff to frame a complaint.” As said in Lathrop v. Bunn, 5 Civ. Pro. R. (Browne) 101, “ an examination will, not be allowed for the purpose of informing a plaintiff whether he has a cause of action.”</p> <p>The order should also be "acated, because the material allegations of the affidavit are all on information and belief. See Walker v. Granite Bank, 19 Abb. Pr. 111.</p>

<p>1. Substitution, of indemnitors of sheriff as defendants.] The provisions of sections 1421-1427 of the Code of Civil Procedure, authorizing substitution of indemnitors as defendants in place of the sheriff, are innovations in the law, and so seriously modify the ordinary common law rule of liability as to require a very clear case to be made out before the court would direct such substitution.</p> <p>2. The same.] So held, denying substitution in an action by an assignee for benefit of creditors against a sheriff for conversion of property levied upon and detained by him by virtue of several warrants of attachment against the assignor’s property, obtained by different creditors of the assignor.</p>

Motion, made at the Clinton county special term in January, 1887, for the discharge of the defendant from arrest under an order of arrest heretofore issued in this action, and from any liability to be arrested upon any execution that may be issued upon the judgment in this action, etc. The order under which the defendant was arrested was granted by a judge, and the defendant was arrested thereunder by the sheriff of the county of Franklin, on February 13, 1885, and upon such…

<p>1. ■ Costs upon trial of demurrer.l Upon sustaining plaintiff’s demurrer to a counterclaim pleaded by' defendant, the court maj^ award costs to the plaintiff, notwithstanding the issues of fact remain to be determined.</p> <p>2. The same; amount. ] An award of costs covers all the costs in the action, including costs before and after notice of argument, and for trial of an issue of law.</p>

The defendant was adjudged guilty of contempt in supplementary proceedings had herein ; he appealed to the general term and the order for committal was reversed, with costs. The defendant claimed and the clerk taxed §60 costs, besides disbursements, in defendant’s favor, under section 3240 of the Code of Civil Procedure. The plaintiff moved for retaxation, and the special term reduced the amount to §10 costs and disbursements. From this order the defendant appeals.

<p>1. Costs in an action against an administrator.] Costs cannot be allowed in an action against an executor or administrator who has published the statutory notice requiring all creditors to present claims, unless the claim upon which the action was brought was presented within the statutory limitation, although the trial judge certifies that in his opinion the payment of the claim was unreasonably resisted and neglected.</p> <p>% The same; actual knowledge of the publication.] The rule is not altered by the fact that the creditor was unaware of the publication of notice to present claims, until the statutory period allowed therefor had expired.</p>

<p>1. Leave to sue in forma pauperis.] An application for leave to sue in forma pauperis in an action for personal injuries from negligence, denied, where there was a conflict of evidence as to whether plaintiff had a good cause of action, and was without means to enable him to carry on the suit, and there was sufficient evidence that he had made an agreement with his attorney by which the latter was to advance the expenses of the suit, and receive one-half any recovery therein.</p>

<p>1. Stay of proceedings for non-payment of costs.] A defendant has no absoluto right to a stay of proceedings until payment of the costs of a former action for the same cause, but the matter rests in the sound discretion of the judge, depending upon the circumstances of the particular case.</p> <p>2. The same; when refused.] Where the former action was dismissed for want of prosecution, through the neglect of the plaintiff’s attorney and without his knowledge, and the issues in the two actions were not identical, the former being brought for salary to the time of its commencement, and the latter for salary accrued after as well as before the former action,—Held, proper to deny the application for a stay for non-payment of the costs of the former action.</p>

<p>1. Exempt property allowed to widow.] Under the act of 1874 (Z. 1874, c. 470) amending the Revised Statutes (2 B. 8.83, § 0), the widow of a decedent is entitled, in,addition to the specified articles and “ other necessary household furniture not exceeding $150 in value,” allowed by the act of 1842 (Z. 1842, c. 157), to other household furniture not exceeding $150 in value, or the sum of $150 in lieu thereof.*</p>

<p>1. New trial; after reversal on appeal, placing cause on calendar.] Where a judgment has been reversed and new trial ordered, either party has an absolute right to have the case placed upon the day calendar for trial.*</p> <p>2. Whether cause remains on calendar.] Where a new trial is ordered by the appellate court, the cause cannot be deemed disposed of, within section 977 of the Code of Civil Procedure, by which an action in the first district once noticed for trial, is to “ remain on the calendar until disposed of.’’</p>

Motion by the plaintiff for an order to place this cause upon the day calendar for trial, on a particular day. The cause had been once tried, and the judgment for the plaintiff affirmed on appeal to the general term, but reversed by the court of appeals, and a new trial ordered. Both parties had, since the filing of remittitur, noticed the cause for trial and it was now on the general calendar.

<p>1. Preference on trial calendar hoto obtained.] In an action against a corporation upon its' promissory note, the plaintiff is entitled i under subdivision 8 of section 791 of the Code of Civil Procedure, i to a preference of the cause for trial without serving an order therefor with or before the notice of trial or argument, as the right to a preference appears upon the pleadings.</p> <p>2. The same; direction to cleric.] There being no rule by which the clerk may determine for himself whether the cause is entitled to J preference, he may be directed upon plaintiff’s motion to put the cause upon the preferred calendar.†</p>

<p>■1. Action on note of corporation ;■ order for trial of issues.] In an action against a corporation upon its promissory note, service, with the answer, of a copy of an order made pursuant to Code Civ. Pro. § 1778, directing trial of the issues, is a full compliance ‘with that section; no order for the trial of the new issues raised by answer to an amended complaint need be served with that answer.</p>

<p>Appeal from order of Special Term placing cause on day calendar.</p> <p>The facts appear in the report of the decision below (ante, p. 469).</p>