Volume 2 — Abbott's New Cases

Appeal by defendants from a judgment of the general term of the bT. Y. superior court. This action was brought to recover for services rendered by the plaintiff, Stephen B. Brague, who is an attorney at law, to Bufas L. Lord, in relation to the recovery of certain stolen property, and also for part of a reward which had been offered for the recovery or restoration of the property.

Trial by the court. The action was brought by Moritz Josephthal and Louis Josephthal, against Felix H. Heyman and another, to foreclose a mortgage on real estate. The defendant, Felix H. Heyman, applied to one Patzel, a broker, for a loan of $12,000, to be secured by a first mortgage on “defendant’s” real property. Patzel called on Moritz and Louis Josephthal, the plaintiffs, and solicited the loan from them.

Appeal by plaintiff from a judgment and order. The action was brought by Raphael J. Moses, Jr., against John R. McDivitt. On May 3, 1872, one Washington Ritter loaned $2,500 to the defendant, John R. McDivitt, who gave his note for that amount with interest, payable in one year. At or about the same time he gave four additional notes, each for the sum of $31.25, as an extra payment of five per cent, over lawful interest for the loan.

Appeal by plaintiff from a judgment dismissing complaint. On November 12,1874, the plaintiff, John D. Grady, lost a package of diamonds valued at $6000. On the same day he advertised a reward of $1500 for their return. On November 19, the defendant addressed to the place named in the advertisement, a note, in reply to which plaintiff called on defendant upon several occasions.

<p>Covenant.—Condition Subsequent.—Evidence.—Incumbrance.— Specific Performance.</p> <p>In a deed of lands, after the granting part, a clause whereby the grantee covenants with the grantor, &c., “as one of the terms and conditions upon which the foregoing conveyance is made, ” not to build except under certain restrictions, constitutes a valid condition subsequent, a breach of which would divest the estate.*</p> <p>A condition subsequent, though grafted upon an estate at the time of its creation, constitutes an “incumbrance” within the meaning of a clause in a contract between vendor and purchaser, to convey free from incumbrances except such as are specified in a deed containing such condition.</p> <p>All restrictions, obstructions and impediments tending to prevent or impair the free use and transfer of real estate may be deemed “incumbrances,” within the meaning of such an excepting clause, † It seems, that extrinsic evidence is admissible to show that the .parties, in adopting such a clause, intended it to provide for the condition or burden in question.</p>

indictment lor uttering, writing, and publishing an obscene letter. In May, 1876, the, defendant, Hallenbeek, was indicted by the grand jurors of Greene county, for writing and sending through the mails to Mary T. Wetmore obscene letters.

Appeal by defendant from a judgment on a verdict, and from an order denying a new trial. This action was brought by Christopher Price, against Wm. Held: as a matter of law, that the deposit in the post-office in Brooklyn was a sufficient service; that the meaning of the indorsement was, that the defendant should become security, and that contract would be completely nullified if the fact that he was an accommodation indorser was allowed as a defense in this case.

Appeal by defendant from judgment overruling demurrer to complaint. This was an action by Louis P. Grfroehrer, and others, against Jacob and Jennie Shepard, to recover the amount of a promissory note, made by the defendant, Jacob Shepard, payable to the order of the plaintiffs, and indorsed by the defendant, Jennie Shepard, at the time the note was made.

<p>Complaint. —Pleading.</p> <p>Where, in an action by the payee of a promissory note against an indorser, it was alleged in the complaint, that after the making of the note, it was indorsed by the defendant, and thereupon transferred for value to the plaintiff; Held, on demurrer to the complaint, that this was not a sufficient averment to admit proof to rebut the presumption that the payee was the first indorser, and therefore not liable to him.</p> <p>There should have been an allegation that the plaintiff parted with value upon credit of the indorsement, in order to hold the defendant liable.*</p>

Appeal by defendant from a judgment. . John M. Bruce sued Joseph Kelly on a promissory* note.

TMs proceeding was brought to review the correctness of an assessment by the local assessors of the city of Troy, of the property of the Troy Union Railroad Company, for a local improvement.

Motion by plaintiff for adjustment of costs. This was an action by Catharine Flood, as administratrix, against David Moore. On the first trial of the action the jury did not agree. The attorneys for plaintiff procured from the stenographer a copy of his minutes of the evidence to use on the second trial, and it was so used; and the attorneys showed by affidavit that it was procured in good faith for that purpose.

Augustine W. Baby and Richard Jacot were the* owners of three adjoining houses and lots in the city of New York, known as Nos. 431, 435, and 437 West Sixteenth street. Susan Allen and Thomas Brown held mortgages to the amount of $15,600 on No. 437. In June, 1875, Baby commenced a suit against Jacot, Allen, Brown, and others, for the- partition of the property.

<p>Costs.—Hew Tbial.—Evidence.</p> <p>A new trial granted because an exception is well taken cannot be conditioned on payment of costs.</p> <p>On a motion for new trial, both upon exceptions and for insufficiency of evidence, an order granting it on condition of payment of costs, without specifying the ground, will be presumed to be made on the latter ground, and therefore will be sustained.</p>

Augusta Berwick lived with and was taken care of by Louisa A. Darling for some time before her death. In her will, after directing the payment of her debts, she requested that the kind friends with whom she was living should be well rewarded for their care of her, but did not direct any certain amount to be paid. After her death, the plaintiff presented a bill for the care, &c., of the decedent to Lawrence W. Halsey, the executor of the will.

This action was brought against the defendant as executor, to recover the sum of $440.65 for board and necessaries furnished to his testatrix, a married woman. The executor refused to pay the claim because he considered it exorbitant. The case was sent to a referee, who reported only $242 due.

<p>Complaint.—Cause op Action.—False Imprisonment.—Irrelevant Allegation.—Pleading.</p> <p>In the complaint in an action for false imprisonment, an allegation of a conspiracy of two of the defendants to imprison plaintiff, and that in pursuance thereof two other defendants were employed to make the arrest, is not irrelevant.*</p> <p>Allegations that defendants entered plaintiff’s house and arrested her, and another that they forcibly removed her therefrom and took her to jail, constitute only one cause of action, †</p> <p>In an action action for false imprisonment, an allegation, in addition to the general averment of personal injury, that plaintiff was prevented from performing certain domestic duties; Held, irrelevant.</p>

Appeal by defendant from a judgment upon a report of a referee.

Motion by defendant to set aside an order confirming report of a referee on foreclosure of a mechanics’ lien, and the judgment entered thereon. This action was brought by John Gauhn and others, claimants, against Jennie C. Mills, the owner, to foreclose a mechanics’ lien. A judgment on report of referee had been entered, in which the rights and equities of the lienors were adjudicated.

I. November, 1876. Foreclosure of a mechanics’ lien. This action was brought by Frederick Marryatt and William Nelson, against Christiana Riley, wife of John Riley, Sophia Palmer, widow and administratrix of John Palmer, deceased. The plaintiffs rendered work and labor, and furnished materials on and about the erecting of a house on a lot of land owned by one John Palmer. ‘ The contract was entered into between plaintiffs and said John Palmer in February, 1876.

Application by plaintiff for examination of a defendant before trial. This action was- brought by Lyman Elmore- and another against Henry B. Hyde and others. After the action was at issue application was made by the plaintiffs, for the examination of the defendant Henry B. Hyde as a witness on their behalf before trial, under section 391 of the Code.

<p>Emma J. Mason brought this action against Lydia C. Libbey, to reach certain real property which she claimed as cestui que trust.</p> <p>The complaint alleged that the defendant was formerly the wife of one Heath, and the plaintiff was the issue of their marriage; that said Heath conveyed his property to the defendant with the understanding that it should be held by her for the common use and benefit of the family,—the husband, the defendant and the plaintiff; and claimed that defendant, after the husband’s death, held the property in trust partly for the use of the plaintiff.</p> <p>The complaint further alleged that the defendant became insane in 1859, and partially recovered in 1863; and that said Heath, her husband, in his life time, allowed her to control the property, because of his fear that opposition on his part might cause a return of the grievous malady with which she had been afflicted, and from which she had only partially recovered.</p> <p>I. March, 1877. Motion to punish for contempt in refusal to make affidavit.</p> <p>The husband of the plaintiff made an affidavit for purposes of a motion made by the plaintiff in the Second Department (reported in 1 Abb. N. C. 354). Defendant’s counsel, desiring to make use of the same affidavit to resist a motion now made by plaintiff to compel the examination of the defendant before trial, found that it was not on file, and that the plaintiff’s attorneys had no copy.</p> <p>Defendant’s attorney prepared an affidavit for plaintiff to sign and verify, stating the substance as he claimed of such previous affidavit, and to the following effect: that the plaintiff was a practising physician, the husband of plaintiff, that on the previous motion the affidavit alleged to have been made by him and now lost was used, and after argument handed to the judge of the court with other papers; ' that it was prepared in the interest of plaintiff, and in opposition to the defendant’s motion to set aside plaintiff’s proceedings ; that such affidavit among other things set forth that deponent was a physician, and as such for some time past had made insanity and diseases of the mind a specialty ; that he had been so related to defendant, and had been so much in her presence or society as to enable him to judge of her mental condition; and that he hacL thus satisfied himself that she had been and still was of unsound mind.</p> <p>On applying to Dr. Mason to verify such affidavit on behalf of defendant, he refused to do so.</p> <p>Defendant, then, on affidavits to the loss of the paper, and to information from plaintiff’s attorneys that the original affidavit referred to had been actually used on the motion, or handed to the court with the other papers, and that Dr. Mason refused on application to verify the proposed new affidavit, or to read it or hear it read, or to take it and refer it to his counsel, applied to the court and obtained an order appointing a referee to take the deposition of said Mason, and requiring him to 'appear before the referee for that purpose at such time as might be indicated by a subpoena to be duly served under the hand of the referee. The proposed witness appeared before the referee, and stated that many of the allegations of the proposed affidavit which he was asked to verify were false; and also that the facts he was asked to disclose in said affidavit were facts which he obtained from defendant as his patient, and which were necessary for him to obtain in order to treat her as his patient, and these facts witness refused to disclose unless so ordered by the court. He also submitted an affidavit which he was ready to swear to.</p> <p>The referee ruled that the witness must be sworn, and submit to examination on the points as to which his proposed affidavit was not satisfactory to the defendant’s counsel. The witness refused to be examined; he submitted Ms proposed affidavit, but declined to be examined or sworn- further than verifying its allegations.</p> <p>The material allegations of the .affidavit thus offered by plaintiff were, that deponent was a physician, the husband of plaintiff; that on the previous motion referred to, no affidavit of the deponent was used, or read, or referred to on the argument, or handed to the judge; that an affidavit of deponent was prepared in the interest of plaintiff and in opposition to such previous motion, and was in the bundle of affidavits prepared on behalf of plaintiff, which bundle was shown by courtesy to defendants’ counsel. But after consultation, and before the argument of the motion, and before the motion was called up for argument, it was determined not to use such affidavit, and it never was used. That deponent did not remember the precise language used in said affidavit, but recollected. the substance thereof. “ That whatever facts were therein stated with reference to the mental condition of the defendant, were information acquired by deponent in attending upon defendant as a physician in a professional capacity, and were necessary to enable deponent to prescribe for defendant. That deponant is advised by his counsel that he is not at liberty to disclose such information, and under the advice of his counsel declines so to do.”</p> <p>"Upon the papers showing this state of the proceedings, defendant obtained an order to show cause why Dr. Mason should not be punished as for contempt in not submitting to be sworn and examined.</p> <p>I. This is a proper application under the Code (§ 401, subd. 7) to compel a witness to make an affidavit.</p> <p>II. The affidavit must be full and frank to answer the requirements of the Code (Fisk v. Chicago, &c. R. R. Co., 3 Abb. N. S. 433).</p> <p>III. The time for the adverse party to appear and object is on the motion when the affidavit is proposed to be read (Brooks v. Schultz, 5 Robt. 656).</p> <p>IV. As to the objection that the communication is privileged : 1st. We only ask the same facts sworn to in July, 1876, on á similar motion. 2nd. The privilege is that of the patient, and not of physician (Benjamin v. Coventry, 19 Wend. 353). The defendant, patient, waives the objection—the privilege—by making this application. If patient or client calls the physician or attorney, the privilege is thereby waived (14 Wend. 643 ; Phil, on Ev. 108).</p> <p>V. The adverse party cannot move to set aside proceedings for procuring such affidavit (Erie R. R. v. Champlain, 35 How. Pr. 73).</p> <p>VI. It is too late to take the position that no refusal has been made, after the proposed witness has appeared before the referee (35 How. Pr. 73).</p> <p>Lawrence, J., held that the application must be granted. He accordingly granted an order that “the witness attend before the referee at such time and times as the referee may appoint, and make his deposition as required by the original order and subpoena heretofore served ; with $10 motion costs and $13 disbursements.”</p> <p>II. April, 1877. Motion to compel defendant to submit to examination before trial.</p> <p>The order which defendant had obtained requiring plaintiffs to show cause why her order for the examination of defendant before trial should not be set aside, then came on to be heard after Dr. Mason has appeared and submitted to examination as required. The defendant resisted the examination chiefly on the grounds disclosed by the examination of Dr. Mason, to the effect that he stated in his original affidavit “ that Mrs. Libbey, the defendant in this case, had been insane ; she had been confined in the asylum for twenty-two months. I have an idea, but am not sure, that something was said as to hereditary insanity. I don’t recall anything further in that affidavit.” He al§o stated that he knew of her being in the asylum, as a matter of general report; and that the insanity was hereditary was a matter of general report too in the family.</p> <p>Insisted that as the object of the action was to charge real estate held by defendant with a trust, in favor of the plaintiff, created by the deceased husband of the defendant, and father of the plaintiff, and the object of the examination was to prove this parol trust, the examination was prohibited by section 399 of the Code.</p> <p>II. The application should be denied on the grounds stated in Schepmoes v. Bousson (1 Abb. N. C. 481).</p> <p>III. An examination of the pleadings shows that the action cannot be supported and should be dismissed. Hence, no examination is necessary.</p> <p>IV. In case of any doubt as to a clear case and clear right on the part of the party seeking the examination, and where it does not appear that the party whose examination is sought cannot be required to attend the trial, the court will defer the examination so that • all questions and suggestions may be then properly passed on.</p>

Alexander B. Mott, a physician, sued the defendants for damages sustained by him by a street collision between the carriage in which he was sitting in Fourth avenue, near Eighteenth street, in the city of New York, and an ice wagon belonging to defendants, and driven by their servant. The collision, it was alleged, was caused by the negligence of defendants’ servant.

Action for money had and received; tried by the court, a jury having been waived. This action was brought by George A. Boyce, appointed by the supreme court as trustee under the will of John F. Barley, against Franklyn Wight, to recover the sum of $8,065, awarded for damages for certain land, condemned upon the opening of Madison avenue, and received by the defendant.

Demurrer to complaint. This action was brought by William A. Miles and Charles H. Bailey, as executors of the last will, &c., of William B. Miles, against Eliza A. Titus, to have a former judgment of this court, in a suit of the said Eliza A. Titus, the plaintiffs, and others, against Anna J. D. Burr, and others, opened, and that the plaintiffs and defendant herein have leave in some way to raise an issue as between themselves, as to the extent of their respective ownership…

<p>Reference.—Undertaking on Injunction.</p> <p>Where plaintifE in an injunction suit has leave to discontinue on payment of costs, defendant does not, by consenting to entry of. an order discontinuing without costs, preclude himself from moving for a reference to ascertain the damages sustained by reason of the injunction.</p> <p>The reference fixes the measure of damages on the undertaking, but not the liability.</p>

<p>Motion to vacate an order of arrest.</p> <p>The motion was based upon the summons, order of arrest, and the affidavit upon which it was granted. .</p> <p>This action was brought by Catharine Eypert against Nannette Bolenius, sued as Nannette Sperry, for the recovery of $1,045 alleged to have been fraudulently obtained by defendant from plaintiff.</p> <p>The plaintiff’s affidavit, on which the order of arrest was granted, after stating that the defendant, at the city of New York, on or about January 13, 1875, obtained from her $1,045 in money, alleged as follows “At said time and place the said defendant exhibited to deponent two documents, the originals of which will be exhibited to the justice to whom application will' be-made in this action for an order of arrest of the defendant, and produced on the trial of this action; said two documents purported to be and were then and there by the defendant represented and stated to be first mortgage bonds of the Leeds & Farmington Bailroad Company, State of Maine, for the sum, one of one thousand dollars and the other of five hundred dollars, the principal payable July 1, A. D. 1896, and the interest payable January 1 and July 1 of each year, the payment of the principal and coupons of the said bonds guaranteed by the Maine Central Bailroad Company in pursuance of a contract dated July 27, 1871, said guarantee being signed by James Cushing, treasurer of the said Maine Central Bailroad Company.</p> <p>“The said bonds were dated July 1, 1871, had attached to them .coupons for the payment, in the $1,000 bond, of thirty dollars January 1 and July 1 of every year until the principal became due, and in the bond of $500, of fifteen dollars upon said dates.</p> <p>“Said bonds purported to be signed by D. W. Clarke, treasurer, H. M. Payson, president, and Bensselaer Cram, George E. B. Jackson, and John W. Perkins, trustees.</p> <p>“At said time and place said defendant stated that said bonds were genuine and of the value they purported to be, asked this plaintiff to loan to her said one thousand and forty-five dollars for the payment of a judgment then pressing upon her, and stated to deponent that if deponent would advance said money and extricate her from her trouble arising out of said judgment she would deposit with this deponent said bonds and coupons, and that deponent should collect said coupons as they became due, and then and there delivered to this defendant said bonds arid coupons, and made, executed and delivered to this deponent an instrument of which the following is a copy, and the original of which this deponent is ready to produce:</p> <p>“ ‘New Yoek, January 31, 1875.</p> <p>“ ‘ I hereby authorize C. Eypert to keep certain bonds in safe keeping until I the undersigned have made a settlement with her in full.</p> <p>“ ‘Nannette Sperry.’</p> <p>“And this deponent says that then and there said defendant also asked this deponent, as a further security, to take an assignment of the judgment to be paid by said moneys.</p> <p>“This deponent believed said representations of said defendant, and upon the faith of said belief advanced said one thousand and forty-five dollars, and received said bonds and authorization.</p> <p>“Said representations of said defendant were wholly false, said bonds were forgeries and counterfeits, and were uttered by said defendant falsely, fraudulently and feloniously.</p> <p>“The coupons thereto attached for $30 and $15, payable January 1, 1876, were by this deponent presented to said company for payment, and pronounced forgeries.</p> <p>“This deponent has made inquiries as to the character of the said defendant, and the answers to the inquiries are unfavorable, that her character is bad. The defendant within the past two years has represented herself to be Nannette Sperry, Nannette Eckhardt, and Mrs. Bolenius.</p> <p>“This deponent has in this court commenced an action for the recovery of said one thousand and forty-five dollars against the above named defendant by summons. No part of said money has ever been paid to her, although repeatedly by said defendant promised to be, and said defendant is now indebted to deponent for said amount with interest.</p> <p>“This deponent asks in this action that the said defendant may be arrested therein and dealt with according to law.”</p> <p>On this affidavit an order of arrest was granted on January 15, 1877, and the defendant was arrested</p> <p>thereunder January 29, and held to bail in the sum of $1,500.</p> <p>Defendant now moves to set aside the order of arrest.</p> <p>I. A female can only be arrested in an action for willful injury to person, character or property: this is not such an action (Code, § 179, subd. 5).</p> <p>II. In an action to recover a debt from a female, she is exempted from arrest by section 179, although she may have fraudulently contracted it (Wheeler v. Hartwell, 4 Bosw. 684).</p> <p>III. The affidavit on which the order of arrest was granted is defective. 1. It should set forth the particular representations made to induce the loan; the general allegation that they were false and fraudulent not enough (Draper v. Beers, 17 Abb. Pr. 163). 2. Proof of actual intent to defraud must be shown (Birchell v. Strauss, 28 Barb. 293 ; Claflin v. Frank, 8 Abb. Pr. 412; Smith v. Jones, 4 Robt. 655). 3. The source and nature of information derived from others should be particularly set out and the reason given why a positive statement cannot be procured (Whitlock v. Roth, 10 Barb. 78; Blason v. Bruno, 33 Id. 520; De Weerth v. Feldner, 16 Abb. Pr. 295). 4. It must be shown that the defendant knew the representions were false, and made them with intent to defraud (Smith v. Jones, supra; Marsh v. Falker, 40 N. Y. 562 and 575 n.).</p> <p>IV. A female is exempt from arrest in all cases except those enumerated when the injuries are attended with willfulness (Duncan v. Katen, 6 Hun, 1).</p>

<p>Arrest.—He Exeat.</p> <p>He exeat should not be granted in an action on an ordinary legal demand, nor where the liability of defendant sought to be arrested is in doubt.*</p> <p>Motion to vacate ne exeat will not be denied on the ground that defendant has given bail, unless the facts as to the security given are shown to the court, and establish a waiver.</p>

<p>Abbest.—Special Bail.</p> <p>Where a defendant in an action has been arrested under the non-imprisonment act of 1831, he should be discharged upon giving special bail as required by the statute.</p> <p>Whether the Code has not changed the form of bail in all actions, guare.</p>

On December 21, 1867, the plaintiff entered up judgment by default against the defendant, upon an affidavit of service made by the plaintiff’s attorney, which stated that his clerk had in the month of June, of that year, personally served the defendant with a summons in the action.

<p>Leave to issue Execution.</p> <p>The issuing of an execution, for the first time after five years from the entry of judgment, without application to the court, is not void, but only voidable in the discretion of the court.*</p>

, of John H. McCrum, deceased. In February, 1876, Samuel and Alexander Clark obtained a judgment against the executors of John H. McCrum. On March 15 a petition was filed and proceedings taken in the surrogate’s court of New York county, for leave to issue an execution upon the judgment against the executors, under the statute, on, the ground that there were assets in their hands applicable thereto.

<p>Court op Common Pleas.—Marine Court.—Marshal.—Execution.—Transcript.</p>

This was an appeal by defendant from a judgment rendered by a court of a justice of the peace in favor of the plaintiff. It appeared that the plaintiff, for several years, was in the occupation of a tract of land which fronted for about one thousand feet on the Eleven Mile creek, in the town of Tonawanda, in Erie county.

Demurrer to answer. The National State Bank of Newark brought this action against James B. Boylan and John Boylan to recover the amount of two judgments obtained by the plaintiff against the defendants in the supreme court of New Jersey ; one being for $3059.01, obtained August 25,1876, and the other for $1851.94, obtained September 18, 1876.

<p>Assignment fob Benefit of Cbeditobs.</p> <p>An assignment for the benefit of creditors is not a fraud upon one creditor, even though it operate to give the whole property to another.</p> <p>It is not fraudulent to deprive a creditor of a resort, to his debtor’s property, if the disposition actually made of it is proper, although this disposition is in fact made to prevent an execution being levied on the property conveyed.</p> <p>The proximity in time of the assignment to the issuing of execution is immaterial.</p> <p>If, before an assignment, a creditor gains a right to a preference, an assignment that would have the effect of destroying that right is fraudulent as to it.</p> <p>Mere falsehood or deception does not give a cause of action. It must be shown that injury has been done by it.</p> <p>Where a debtor said that if he had time, and if there should be no judgment or execution to break up his business, he could pay everybody, and his creditors did not think it an impossibility, and there was a common negotiation in the interest of' the creditors and the debtor to see if he could not give security and go on with business, but a-judgment having been obtained against him, he made a general assignment of his property for the benefit of creditors ;—Held, that the general delay, induced by the debtor’s acts and promises, was not fraudulent.</p>

<p>Assignment.—Parties.—Evidence.—Verified Answer, how rebutted.—Release.—Evidence on appeal.—Sheriff’s sale.</p> <p>—Discrediting witness.—Satisfaction of Judgment.— Set-off.—Representative party.—Action to vacate Judgment.—Jurisdiction of Surrogate.</p> <p>Where a non-negotiable obligation,—e. g., a judgment,—is taken in the name of one not the equitable owner, but as collateral for his claim against the equitable owner, payment of it, made by the debtor, to the equitable owner, becomes effectual when the lien of the nominal holder is discharged by satisfaction of his claim.</p> <p>The test whether the debtor’s payment satisfies the obligation, is not whether the third person could have maintained an action upon the obligation.</p> <p>The former equity rule, making a verified answer denying an allegation in the bill equivalent to testimony requiring two witnesses to rebut it, is not applicable under the Code.</p> <p>The parties, now having the right to offer themselves as witnesses, occupy the position of other witnesses, and where the testimony of either conflicts with that of another witness, though there be no other testimony upon the point in dispute, the preponderance is to be determined by the tribunal.*</p> <p>Records are sometimes received on the argument of an appeal to cure an omission, through inadvertence of proof at the trial; but this is permitted only to uphold a judgment. The court cannot reverse, if no error was committed below.†</p> <p>To rely on a fact proven, and urge it as the ground for the judgment of the court, without disclosing another fact knowm to the party which would wholly avoid its effect, is a concealment material to the question of fraud in obtaining a judgment, in case the fact withheld is not known to the adverse party.</p> <p>A sale on execution after a release of the judgment, given by the equitable owner of it, is without authority; and one privy to the release acquires no title by purchasing at the sale. Nor does his assignee, unless he can show that he is a bona, fide purchaser for value, and establish an estoppel against the judgment debtor.</p> <p>A witness, though uncontradicted and unimpeached, may be disbelieved on the ground of intrinsic improbability.</p> <p>Where one, claiming to be a bona fide purchaser testified, in general terms, to his good faith, but his cross-examination drew out statements showing his conduct unusual, imprudent, and inconsistent with the purpose claimed by him ;—Held, that the judge did not err in discrediting his testimony, although uncontradicted and unimpeached.‡</p> <p>Although, while a judgment is held by an assignee having a lien thereon, the right of the debtor on recovering a cross-judgment against the original creditor to claim a set-off is, in so far, suspended; yet, on the satisfaction of the lien claimed by the third person, the right of set-off arises; and this notwithstanding that the latter judgment was recovered after the assignment was made.</p> <p>Parol evidence of the existence of a judgment is sufficient to establish it in support of a right of set-off, unless objection to that mode of proof is taken at the trial.</p> <p>Neither an action to set aside a sheriff’s sale and deed on the ground that the judgment on which it was founded was previously paid, nor an action to vacate a decree or judgment for fraud of a party in procuring it, is obnoxious to the objection that it is an attempt to review a judgment or decree by a new action.</p> <p>A release to the debtor, by the pledgor of a judgment, while the-judgment is subject to the lien of the pledgee, is effectual to discharge the whole liability of the debtor upon the judgment whenever the lien of the pledgee is satisfied.</p> <p>Designating a party in the title of the action as “A. B., executor of S. B., deceased,” not using the word “as,” or its equivalent, is merely a description of the person.</p> <p>If the title of the action does not declare the character in which the plaintiff sues, it may be supplied from the body of the complaint.*</p> <p>The plaintiff was designated in the title executrix, &e., and the complaint stated that in the will she was named executrix and sole devisee. Held, that she could sustain the action in both capacities.</p> <p>The objection that a plaintiff cannot sue both as executor and devisee,—both in his individual capacity and as a representative or trustee,—if sustainable at all, cannot be first taken on appeal.</p> <p>A court of equity may set aside the judgment or decree of another court when it has been obtained by the fraud of the party.</p> <p>For such purpose fraud intervening in the proceedings by which the judgment was obtained, occurring in the very concoction or procuring of the judgment, and not known to the opposite party at the time, and for knowing which he is not chargeable with neglect or inattention, must be shown.</p> <p>The fraud must • consist in something of which the complaining party by reason of fraud could? neither avail himself in the court giving judgment, nor by suit to restrain the proceedings there.</p> <p>Concealment by withholding a fact essential to the determination of the suit is a ground for relief against a judgment recovered thereby, as well as fraud.</p> <p>If a party proceeded against in a court of special jurisdiction, —such as the surrogate’s court,—cannot obtain relief against fraud by reason of the limited powers of that court, it is his duty to bring an action in a court of equity to obtain such relief before a final judgment in the court of special jurisdiction. If, with knowledge of the facts constituting the fraud, he fails to do so, he cannot subsequently sustain an action for relief against the judgment of the court of special jurisdiction on the ground of the fraud on which it' was founded.</p> <p>Where the evidence actually admitted without objection on the trial is in opposition to the allegations and admissions of the pleadings, the evidence will control in the appellate court.*</p> <p>The surrogate’s court, on the question of a claim of a creditor against an estate, cannot try the validity of the judgments of other tribunals of competent jurisdiction, nor the right of the executors to set off against such judgment a judgment in favor of the decedent.</p> <p>The claim to set off one judgment against another is a matter of equitable cognizance.</p> <p>The surrogate cannot try a disputed claim of a third person against the estate.</p> <p>If the claim is a judgment of a court of competent jurisdiction, he cannot entertain the defense that the equitable title is in a debtor to the decedent.</p> <p>In general, a motion to set off a judgment must be made to the court which gave the judgment against the party moving for the set off.</p> <p>A decree is not to be deemed obtained by fraud because the successful party omitted to disclose a material fact, if the fact would not have been material had the adverse party proved a material fact known to him before the trial.</p>

<p>Evidence.—Parties.</p> <p>The question of the weight to be given to conflicting testimony of parties to an action cannot be disposed of by the court, but should be submitted to the jury.*</p>

<p>Attorney and Client.—Set-off.</p> <p>Where plaintiff suffers judgment in favor of one defendant, and recovers against another, the latter, on obtaining an assignment of the former judgment before receiving notice of the attorney’s lien for costs, may have the judgments set-off on motion.</p> <p>Without a transfer of some interest in the claim to the attorney, and notice given by him of his interest, the plaintiff may settle the suit, notwithstanding it may prejudice the prospect of his attorney’s obtaining costs of a future trial, and a judgment for costs in favor of his client.*</p> <p>So, also, other persons may acquire legal rights of set-off, as against the demand in suit, without regard to such future lien of the attorney.</p>

Trial by the court. David O. Van Cott, receiver of the Hudson Avenue Railroad Co., brought this action against James A. Van Brunt and Henry L. Slaght, as directors and holders of unpaid stock of the insolvent company. The grounds of relief which plaintiff claimed were established upon the trial were as follows: The company was organized in 1867 under the general railroad act, the capital stock being fixed by the articles of assoóiation at $200,000, in shares of $100 each.

William Duden and three others sued Clara Waitzfelder, alleging that she made her bond, to them as partners, secured by a mortgage on real property.

<p>Service by mail.—Indorsement to “return if not called for, ” &o.</p> <p>Service by mail, in an envelope indorsed with the direction often used on letters, to “return if not called for,” &c., is not vitiated thereby, unless it appears that by reason of the return, in obedience to the indorsement, the person to be served failed to receive the paper.*</p>

<p>Extba Allowances.</p> <p>In an action for trespass to real property, where the complaint states that the title to the land is involved, and this is put in issue, and it appears on the trial that the question of title is the paramount object of the action, an extra allowance granted to the successful party may be computed upon the value of the property instead of on the amount of .damages.*</p> <p>In such an action where the complaint demanded $100 damages, and the value of the property was $3000, an allowance of $100 was granted on a dismissal of the complaint.</p>

Motion upon two days’ previous notice on the part of the plaintiff, to place cause on the day calendar, returnable at the circuit. It appeared that after the cause had been once tried, a new issue had been raised by the service of an amended answer. The order granting leave to amend said nothing about the date of issue. The cause remained upon the calendar by its former number.

Horace F. Burroughs and others brought this action against Mathew Fosteran and others, to foreclose a mechanic’s lien filed against Fosteran and Fagan as contractors, and the House of the Good Shepherd as owners. The appeal came before the court, from the judgment entered upon the report of the referee to whom the issues were referred for trial.

Appeal by defendants from an order denying a new trial and from a judgment. This action was brought by Isaac Allen against the Williamsburgh Savings Bank, to recover an alleged balance due the plaintiff as depositor of the defendants. Anna Allen, the former wife of the plaintiff, on June 12, 1862, opened an account with' the defendants, and subscribed her name to the signature book.

<p>Appeal by defendant from a verdict given under direction of the court.</p> <p>This action was brought by William Sieger, as executor of Henry A. Grraef, against John Y. Culyer, on the following promissory note.</p> <p>“$753.47. Brooklyn, 10 July, 1874.</p> <p>“ On February 1, 1875, the Faust Club promises to pay to the order of H. A. Grraef, $753.74, at Faust Club, 181 Eemsen Street. Value received.</p> <p>“No. 1, Due Feb. 4. John Y. Culybb,</p> <p>Pres’t Faust Club.”</p> <p>The defendant, in the year 1874, was the president of the Faust Club, organized under chap. 368, Laws of 1865, entitled 1 ‘ An act for the incorporation of societies or clubs for certain social and recreative purposes,” and as such president, in the name of said club, made the promissory note of said club, and delivered the same to the plaintiff’s testator for merchandise supplied to said club for its use.</p> <p>A verdict was directed for the plaintiff, exceptions to be heard in the first instance at the general term.</p> <p>The following facts appeared in evidence:</p> <p>1st. That the club was incorporated under section 1 of - said act, by filing a certificate in writing as required by the act, in which certificate it was declared that the number of directors who should manage the affairs of said club should be three. The directors for the first year were also designated as required by the act. The defendant was not named as director. •</p> <p>2nd. It did not appear that there ever had been any election for directors to take the places of the three named in said certificate.</p> <p>3rd. That after the filing of the certificate—but at _ what particular date, did not appear—the said club adopted a constitution.</p> <p>Article 2 thereof, fixed the annual meeting of the club for election of officers, &c.; and article 3 declared that the government of the club should be vested in a president, vice-president, treasurer, recording secretary, financial secretary, and ten directors, who were to hold office for one year after election, and until their successors should be elected.</p> <p>4th. That in the year 1874, the defendant was president of the club, and that this was the only office he held in the club.</p> <p>It was alleged in the complaint, that at the time the debt was contracted, for which the note was given, the defendant was a trustee of the club. This was denied by the answer, and the only proof upon this point was, that the defendant was the president of the club. At the trial, after both sides had put in all their evidence, the court directed a verdict for plaintiff for $590.67, and ordered the exceptions to be heard in the first instance, at the general term.</p> <p>N. H. Clement, for appellant,—Cited, L. 1865, p. 692, c. 368; L. 1873, p. 1065, c. 698; Hall v. Sigel, 13 Abb. Pr. N. S. 178; Craw v. Easterly, 4 Lans. 513; Diven v. Lee, 36 N. Y. 302.</p> <p>James H. Gilbert (Gilbert & Cameron), for respondent,—L. 1865, p. 692, c. 368, § 7; Addison on Contr. 963, and cases cited.</p>

Appeal by defendant from a judgment rendered on a verdict in favor of the plaintiff. This action was brought by William C. Corsan, the plaintiff, against Richard Oliver, the defendant, to recover damages for the conversion of personal property. On December 31, 1868, Robert B. Hughes had possession of a store, No. 16 Fulton avenue, Brooklyn, under a lease from defendant, to expire May 1, 1871, rent payable monthly, in advance.

<p>Supplementary Proceedings.</p> <p>The court will not grant a peremptory order for the payment of a debt by a judgment debtor oiit of property discovered in supplementary proceedings to have been in his hands and not fully accounted for, unless the facts, disclosed upon reliable evidence, show that the defendant actually had the property in his possession or under his control when he was served with the injunction.</p>

<p>Supplementary Proceedings.</p> <p>A' third person will not he required to pay over to the creditor money he owes the debtor, if he claims an offset. A receiver should be appointed.</p>

Trial by the court. The action was for the foreclosure of a bond and mortgage, dated January, 1875, made by Jacob Elias and wife to Lissack H. Simpson to secure $3,000, on January 18, 1880, and interest payable semi-annually, assigned to plaintiff, and containing the 30-day interest clause.

Trial by the court. William P. Earle brought this action against William A. Hammond and others, to foreclose a mortgage on real property. The defendant, William A, Hammond, executed the mortgage in question, on certain real estate in in the city of New York, to one John J. Brown, about December 30, 1873, to secure the payment of $12,000 on June 30, 1874. The said John J. Brown assigned the same to Henry J. Burchell, for $12,000, on January 27, 1874.

Emil DieckerhofE, Louis Raffloer and William. Zimmerman sued Otto Ahlborn in the supreme court to recover §26,700, the value of fancy dress goods sold and delivered by the plaintiffs to the defendant. Collections had been made to the amount of over $15,000, and an order of 'arrest obtained on the ground of fraud in defendant’s representations of his pecuniary responsibility at the time of making the contract, and he was held to bail in the sum of §11,000.

Petition of assignee for benefit of creditors for Ms discharge. Also, petition of a creditor for an accounting by such assignee. Abraham Backer, assignee of Ezekiel Waiztfelder and.

Appeal by plaintiff from a judgment on a trial by the court.

<p>Trusts.—Vested and Contingent Estates.—Wills.—Intermediate Rents and Profits.</p> <p>In the absence of any controlling provision to the contrary, a bequest to executors, in trust to receive income and apply the same during a life named, and, after its termination, to receive the income and pay the net amount to persons named in equal proportions, the gift being expressed in the present tense and in unqualified terms, vests an interest in the last named beneficiaries immediately upon the death of the testator.*</p> <p>In such a bequest it being also provided that in case of the death of either beneficiary leaving lawful issue surviving him, such issue should take, of income as well as principal, the share the parent would have taken, and, should no lawful issue survive, the survivors should take the share,—the share of one who dies, whether before or after the testator, leaving lawful issue, vests in such issue, and does not go to the survivors.</p> <p>A provision making the executors guardians of all minors who may become entitled to a share under the will confirms this construction.</p> <p>The immediate vesting of the beneficial estate under these rules of construction is not prevented by the fact that the entire legal estate is vested in the executors in trust.</p> <p>While the legal estate is vested in the trustee, the beneficial estate is vested in the cestuis que trust.</p> <p>The provision of section 60 of the statute of trusts (1 B: S. 729; 2 Id. 6 ed. 1109),—declaring that the cestui que trust takes no estate, —only applies to the legal estate, and does not prevent the vesting of his beneficial estate.</p> <p>Under such a devise the words of survivorship are to be referred to the death of the testator, and not to the death of the tenant for life, unless from other parts of the will a different intent is manifest.</p> <p>It is a settled principle that the law favors the vesting of estates, and a contrary intention, not unequivocally expressed, will not be imputed.</p> <p>Such a vested remainder is subject to alienation, and passes by descent.</p> <p>Meld, further that the person entitled to the vested remainder in the future estate under such a bequest had a right to the intermediate rents and income, accruing after the death of the tenant for life; for, if not disposed of, there being no provision for their accumulation, they pass to the person “presumptively entitled to the next eventual estate.”*</p> <p>Section 63 of the statute of trusts (1 B. S. 739; 3 Id. 6 ed. 1110),— providing that “where an express trust is created, every estate and interest not embraced in the trust and not otherwise disposed of, shall remain in, or revert to the person creating the trust, or his heirs, as a legal estate,”—must be construed as applicable only to the legal estate, so as to render it consistent with section 40 of 1 B. S. 736 (3 B. S. 6 ed. 1104),—which provides that rents and profits undisposed of during the continuance of a valid limitation, and not lawfully directed to be accumulated, shall belong to the persons presumptively entitled to the next eventual estate.</p> <p>The equitable right to require the trustees to account or to pay over income, is not an estate or interest which goes to the heirs, but an equitable right which goes to the next beneficiary.</p> <p>Section 40 of the statute of trusts (above referred to) is applicable, not only to pure legal estates, but to all cases where trusts are created and there is an expectant estate.</p> <p>To bring a case within the statute, it is not necessary that the claimant be named as the expectant. It is sufficient that, by the death of the person previously entitled, the claimant has lawfully become such expectant.</p> <p>Section 40 (above cited), although contained in the article of the revised statutes which relates to creation and division of estates, is applicable to trusts.</p>

<p>Bill oe Particulars.</p> <p>In an action for damages for conspiring to withhold evidence in a previous action, the defendant may have a bill of particulars setting forth specifically the evidence withheld or concealed,—if oral, the names and residences of the witnesses who would or should have testified,—if documentary, the documents claimed to have been suppressed.*</p>

Action of partition, tried before Sheldon, J. This was an action for the partition of real property. John Greenshield died in 1863, at Buffalo, leaving a will, bearing date, January 16, 1863, which was duly proved.

Motion by defendant for security for costs. Joseph Keller sued Charles H. Townsend, for $10,000 damages for slander. After the service of the summons and complaint, the defendant, upon affidavits showing the insolvency of the plaintiff, and the existence of unsatisfied judgments against him, and that he was a resident of New Jersey, moved that. he should file a bond for $500, as security for costs.

<p>Guardian ad Litem.—Infant.—Security for Costs.</p> <p>Upon application for appointment of a guardian ad litem for an infant, the papers should show the pecuniary responsibility of the person sought to be appointed.</p> <p>Where an irresponsible guardian ad litem of an infant had been appointed and an action for a tort brought by the guardian, upon motion of the defendant, after issue, that the guardian file security for costs,—Reid-, that security in the sum of $500 should be given, and all proceedings stayed until it was filed.</p>

Motion by plaintiff to continue an injunction. This action was brought by William D. Shipman,: as assignee of William Butler Duncan, against Nathan P. Beers, to prevent the obstruction of certain windows in No. 1 Fifth avenue in the city of New York.

Motion by plaintiff for an injunction. . This action was brought by James 0. Hull against Smith Ely, Jr., mayor, &c. of the city of Hew York, and others. The plaintiff was a resident of the city of Hew York, and a tax-payer therein, and as such brought this action, pursuant to 1 A., 1872, c. 161, to prevent certain alleged waste or injury to the property of the said city.

<p>Evidence.—Notice.—Non-Resident Judgment Debtor; — Receiver.—Supplementary Proceedings.—Section 294 ob Code ob Pro.—Section 714 ob Code ob Civ. Pro.</p> <p>In analogy to section 714 of the Code of Civil Procedure a non-resident judgment debtor is entitled to notice of application for appointment of a receiver in proceedings under section 294 of the Code of Procedure.</p> <p>In such a case the plaintiff can take an order to show cause with a proper provision as to the mode of service, upon a disclosure of the defendant’s residence.</p> <p>As a matter of discretion under section 294 of the Code of Procedure the defendant should have some notice.</p>

Appeal by plaintiff from a judgment. This action was brought by George S. Hazard, receiver of the New York and Erie Bank, against William Wells, upon a promissory note, for $5,000, made by the defendant, dated August 38,1869, payable three months from its date to the order of the New York and Erie Bank, and discounted by that bank, for the defendant, on the 4th day of September, 1869, under the following circumstances : The defendant then held a promissory note made by John…

<p>Affidavit.—Complaint.—Injunction.—Sections 603, 607 of Code of Civ. Pbo.</p> <p>Under section 603 of the Code of Civ. Pro., as formerly, an application for an injunction should be made on affidavit, and not on a verified complaint alone.</p>

Motion by defendant to vacate a judgment of foreclosure for irregularity. Helena L. Gillender Asinari, Hester E. Trotter, and Mary H. Mahan, in April, 1877, began separate actions against Henry L. Volkening, Ludwig (1. Gloeckner and others, to foreclose various mortgages made by Volkening, amounting to about §43,000, on property situated on Fourth avenue and Sixty-eighth street, in New York city.

Motion by defendant to vacate an order of arrest. Marion Grimes sued Erastus Davison to recover $10,000 damages for malicious prosecution.

<p>Affidavit fob Abbest.—Evidence.—False Bepbesentations.— Pbactice.</p> <p>An affidavit to obtain an order of arrest for false representations, on the ground that the defendant had-given a written representation of solvency, &c., several months prior to the sale of goods, made in reliance upon the truth of such representations, should show facts connecting the sales with the declaration.</p> <p>Such an affidavit, alleging oral statements to the plaintiff, should by a recital of the interview during which they were made, connect them with the actual sales. A general statement of a party that they were made to induce credit is not enough.</p>

<p>Supplemental Answer.</p> <p>Where there are two proceedings pending between the same parties for the same cause of action, the pendency of the proceeding first commenced, is a defense to the one last commenced.</p> <p>In such a case, leave to file a supplemental answer in the action first commenced, will not be granted where the matter proposed to be pleaded, being a decision in the second action, cannot be a bar to the first action.</p>