Volume 2 — Howard's Practice Reports

<p>Costs — Who liable for, in case of transfer, &c„ of cause of action— Code of Procedure, section 321 — Code of Civil Procedure, sections 8247, 3352.</p> <p>Under section 321 of the Code of Procedure, one taking an assignment or becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action “the same as if he were a party,” as well those accruing before as after the assignment. Section 3247 of the Code of Civil Procedure took effect September 1, 1880, and at that date section 321 of the old Code was repealed, but section 3352 of the Code of Civil Procedure protects all rights lawfully accrued or established previous to the repeal of section 321.</p> <p>Where the right to the costs claimed had become fixed and established by judgment, and the interest of the person, in the cause of action had been acquired prior to the repeal of section 321, his liability for the costs still continues.</p> <p>Under the second subdivision of section 3247, it being the same as section 321 of the Code of Procedure, a person becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action “ the same as if he were a party,” as well those accruing before as after he became so possessed.</p>

The declaration contained the common counts for work and labor, board, lodging, tuition, &c. Pleas, several issues, statute of limitations (non-assumpsit, infra sex annos) and infancy. Plaintiff moved for leave to reply to the plea of the statute of' limitations, defendant’s absence from the state; that plaintiff took out the first letters of administration on the estate of the intestate within one year before suit brought, and a new promise.

Motion by defendants for a reference. The defendants moved for a reference in this cause, upon an affidavit in the usual form made by defendants’ attorney, without any excuse being given for its not being made by the defendants, or one of them.

Motion to set aside judgment for costs against plaintiffs. Defendant moved for judgment as in case of nonsuit, at the last September special term; which was granted, unless plaintiffs stipulated to try at the next circuit, and paid costs of motion. Within twenty days the plaintiffs paid costs and stipulated to try, by paying the costs to M. Schoonmaker, Esq., an attorney of this court, residing at Kingston, and serving on him a stipulation.

Motion, by defendant for judgment as in case of nonsuit. This cause was referred at a circuit in May last, to a sole referee, on motion of plaintiff. In September last, the plaintiff not having noticed it for hearing, the defendant’s attorney served plaintiff’s attorney with a notice in writing, that plaintiff notice the cause for a hearing in forty days, or that defendant would move for judgment as in case of nonsuit, according to the 44th (new) rule.

Motion by defendant for retaxation of plaintiff’s costs. This was an action of assumpsit for professional services; the caupe was tried before a sole referee. It appeared that the plaintiff made out and served papers on defendant’s attorney, for a motion to refer. Subsequently, in consideration that defendant’s attorney might plead the statute of limitations, he stipulated with plaintiff to refer to a sole referee, and the motion was *not made.

<p>Demurrer to complaint.</p>

<p>Cemetery lots—Deed—When cemetery lots inalienable—Complaint — Answer—Form of denial in answer which dees net put in issue material allegations in complaint.</p> <p>Where it appeared that a certain lot in Greenwood cemetery was purchased by the husband of the plaintiff as a burial lot for herself, her husband and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final resting place :</p> <p>Held, that these facts were sufficient to disable the husband from afterwards conveying it away to another person, and thereby devoting it to a distinct and different purpose. The plaintiff had become so far interested in the property by its improvement, and the interment of her parents as to prevent her husband from making a legal or valid sale of it. The case of Thompson agt. Hickey (8 Abb. N. C., 159 ; opinion by Van Vorst, J.) cited with approval.</p> <p>A denial in an answer “ on information and belief of all the allegations in the complaint contained not hereinbefore admitted or denied and not containing the allegation that the defendant had not sufficient knowledge or information to form a belief as to the other statements in the complaint, and for that reason he denied them, does not put in issue a material allegation of the complaint, and all such allegations will be taken as admitted.</p>

<p>A judgment for costs cannot be regularly entered against an administrator, or the public administrator of the city of New-York, without first making application to this court, for an order for costs.</p>

Motion by defendant to set aside a judgment for irregularity. This suit was commenced by capias, for trespass in cutting down timber, &e., on plaintiff’s premises; the writ was returnable at May term, 1844. Defendant gave bail to the sheriff, and a declaration de lene esse was filed on the 23d May, 1844.

Motion by defendants for judgment as in case of nonsuit. The defendants moved on a stipulation given by plaintiff 23d May, 1845, to try, and an affidavit showjng that subsequent thereto a circuit was held at which the cause was not noticed for trial by plaintiffs, &c. The plaintiffs showed that this was an action for trespass on lands claimed by plaintiffs; that Oathalina B. Dyckman, one of the plaintiffs, died on the 22d February, 1845, and that no suggestion.of her death…

<p>New York {city of)—OoUyred schools—Teachers in — How to he removed— Mandamus.</p> <p>By the act of 1884, chapter 248, the teachers in the colored schools, when said act was passed were continued as such teachers in the ward schools and primaries until removed in the manner provided by law.</p> <p>The words “ removed in the manner provided by law,” mean the manner provided by the statutes relating to such removals. Those statutes provide for a removal by the board of trustees, and by the board of education, and a license of a teacher may also be revoked for any cause affecting the morality or competency of such teacher.</p> <p>The act of 1884 does not warrant the dropping of a teacher under a provision of a by-law of the board of education. The clear intention of the legislature was to continue the teachers in the colored schools until they were removed for some misconduct.</p>

Motion by defendant for judgment of non pros. This was an action of assumpsit: the declaration contained the common money counts, and a count on an account stated.

Motion by Richard S. Corning to set aside a precept. • In February, 1844, *a motion was made, entitled in this cause on the part of Richard S. Corning, at the February special term, 1844, for an order requiring the plaintiff or her attorneys to pay over certain moneys, &c., which motion was denied with costs to be taxed.

This was a judgment entered upon a cognovit given by defendant Johnson for the firm of Johnson & Brown, who were co-partners. After *the service of a declaration on Johnson. Brown not having been served with declaration. Brown alleged he did not consent to it; judgment was entered against both defendants ai.d execution issued against the joint property of the defendants and the sole property of defendant Johnson.

<p>Jurisdiction,— City court of New York— Gode of Ciml Procedure, sections 815, 723, 724.</p> <p>Where a judgment was recovered and entered in the city court of New York and execution issued thereon for more than $2,000, and tile excess was remitted and the judgment and execution was amended nunc pro tunc. On motion by a subsequent execution creditor to vacate the judgment and execution for want of jurisdiction and other alleged defects and irregularities :</p> <p>Held, that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only, whatever may be the amount claimed. The amount claimed does not affect the jurisdiction of this court. If jurisdiction vests at the commencement of the action, it cannot be ousted-by any subsequent act, although entry of judgment for the excess of its jurisdiction may have been an irregularity which the defendant might have objected to, a third party cannot. There being no want of jurisdiction, if there are any defects or irregularities in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant.</p> <p>The alleged irregularities and informalities, may be amended or corrected by an order to be entered herein.</p>

Motion by defendant Brown to set aside judgment for irregularity. The defendants in this cause were co-partners, and as such were indebted to plaintiffs. On the 22d September last, plaintiffs’ attorneys served on defendant Johnson a declaration. Johnson employed one Whipple, an attorney, to appear for both defendants, and directed him to give a cognovit in the cause for the amount of the indebtedness.

<p>In action of trover brought by the public administrator of New-York, on information and belief, for an alleged conversion by defendant, in the lifetime of the intestate and also after his death, cf certain goods and chattels of the inteltate, the prosecution of the cause having been abandoned by plaintiff in consequence of supposed insolvency of defendant, and judgment as in case of non- • suit having been granted in favor of the defendant, it was held, that the suit was not necessarily prosecuted in the right of the intestate, and that the plaintiff was personally liable for costs, if there was no .property of the intestate.</p>

<p>The district court waived the point as to whether the deck hand was a fellow-servant on “ The Titan,” but held as “ The Titan ” was in fault and “ The Hills ” was also in fault, “ The Titan ” had a right to claim an apportionment of the damages on “ The Hills.”</p>

Motion by defendant to set aside verdict for irregularity. This was an action of assault and battery, tried at Putnam circuit in November last; the jury, after having been out about five hours, rendered a verdict for the plaintiff of $50.

Motion by defendant to set aside writ of replevin and proceedings for irregularity. This motion was made on two grounds; 1st, because the writ should have been directed to and executed by the coroner ; and 2d, on the ground that the affidavit annexed to the writ should not have been entitled. It appeared in this case that the writ of replevin was directed to the sheriff of ®Erie county, and served by one of his deputies on the defendant, who was under sheriff of Erie.

Application to compel one Luzerne J. Smalling, who is prosecuting the petitioner before a justice of the peace of the town of Windham, Greene county, in the name of the overseers of the poor of such town, for violations of the excise law, to give security for costs.

<p>Insurance — Divorce — Husband and wife — Effect of the divorce of a wife for adultery upon a policy of life insurance taken out for her benefit by her husband.</p> <p>In an action by a husband to reform life insurance policies taken out in favor of his wife, from whom he has since been divorced, on the ground of mistake: •</p> <p>Held, that to justify a reformation the mistake must have been mutual The divorce from his wife cannot authorize or enable the court to change the conditions and terms of the policies, unless, through a mutual mistake, the intention of both parties have failed of expression. A mistake on one side is not enough.</p> <p>As the husband accepted these policies at the time they were issued, and has had them in his possession ror many years without objection, they are presumed in law to express his intentions. If for any reason he believed them to be wrong, he should have declined to pay the premiums upon them year after year. Such voluntary payments are an adoption of the terms of the policies as issued.</p> <p>As to the effect of the decree of divorce upon the rights of the divorced wife under the policies, qumre.</p>

Motion by defendants in each cause for judgment as in case of nonsuit. These were four causes between the same plaintiffs and different defendants and same attorneys. The motion papers were made out separate, and the motions granted unless plaintiffs stipulated and paid $10 costs only, including the four motions. It was insisted by defendant’s counsel that costs in this motion should be allowed.

Motion by plaintiff for leave to prosecute a writ of error as a poor ^person. The plaintiff commenced a suit against the defendants in the superior court in the city of New-York, which resulted in a nonsuit. A bill of exceptions was made and settled on the part of the plaintiff. She then presented a petition to this court, for leave to prosecute a writ of error therein as a poor person. The bill of exceptions, and papers on the motion contained the whole case.

Motion by defendant to set aside default and subsequent proceedings for irregularity. The defendant swore that a copy declaration in this cause was served on him, on Wednesday, the 28th May, 1845, by a person who represented himself as a deputy sheriff; it was served in a field adjoining the highway, where he was at work, and was sure he could not be mistaken as to the time of service.

<p> Judgment—¿Set-off—Effect of prior assignment of judgment—Attorney’s lien. </p> <p>The taxable costs in an action are not subject to set-off.</p> <p>An attorney has a lien for his services in a particular case, as a mechanic would upon the product of his labor, and equity intervenes to save it for him, but this lien would ordinarily be measured by his taxable costs, but might embrace a further fee, and will not always be limited to such costs if a special contract had been made in good faith between the client and his attorney, but, it seems, it must refer to his services in the particular action.</p> <p>Where prior to the recovery of the judgment the plaintiff assigned to his attorney herein all his interest in the cause of action in payment for services in the suit of Paries agt. Twrno, and also for money loaned, and the attorney held this assignment prior to the recovery of judgment, and due notice was given the defendants:</p> <p>Held, that the equity of the attorney is superior to that of the plaintiff, and no right of set-off exists.</p>

Motion by defendant for retaxation of costs, with costs of motion. Plaintiff’s attorney noticed his costs in this cause for retaxation, for the 11th of June, 1845, before Judge Gridley, at his office in Utica. Defendant’s attorney forwarded his papers to oppose the taxation to Judge Gridley, which were received in due time.

Motion by plaintiffs to set aside order of circuit judge, and to dismiss appeal. The circuit judge denied defendant’s motion for a new trial in this cause and signed his decision on the 10th of October, 1845.

Motion by defendant to set aside report of referees for irregularity. This cause was noticed and served on the 28th day of July, 1845, for hearing, on the 18th August, 1845, by plaintiff’s attorney on defendant’s attorneys. ' On the 13th.of August, defendant’s attorneys procured an order to stay proceedings from D. Pratt, Esq., first judge of Onondaga county, for the purpose of moving for a commission on the part of defendant.

<p>Surrogate — Jurisdiction—Beference—When order of reference and proceedings thereunder should not he vacated upon motion of a party who had consented thereto—when clerk or other person employed in the surrogate’s office competent to act as referee—stenographer of surrogates court not within the scope of sections 90 or 3511 of the Code of Oivil Procedure.</p> <p>In a proceeding for the revocation of probate all necessary parties, including the infant son of the decedent, were duly served with citation.</p> <p>No application was made for the appointment of a special guardian for such infant and none was appointed, but all the parties who appeared, consented to the entry of an order directing the stenographer of the surrogate’s court to take testimony as a referee. The trial proceeded before such referee, and, at its conclusion, the evidence was submitted to the surrogate, who decided that the probate should he revoked. The entry of a decree upon that decision being opposed by the respondents, and it being contended that the order of reference was without authority and that all proceedings subsequent thereto were void :</p> <p>Held, that the order of reference and the proceedings thereunder should not be vacated upon the motion of any party who had consented to its entry and to the submission of its results to the surrogate for his determination.</p> <p>Held, also, that a special guardian should be appointed to represent the infant, and to ascertain and report whether it would be for the best interests of the infant that the proceedings should stand as theretofore conducted, and a decree be entered accordingly, or that the trial should be commenced de novo.</p> <p>Held, also, that in view of section 3355 of the Code, sections 90 and 2511 must he construed as if they had simultaneously become law, and that so construed, “a clerk or other person employed in the surrogate’s office ” is competent to act as referee, in a proceeding pending in the surrogate’s court, provided he is appointed with the written consent of all the parties appearing.</p> <p>Held, also, that the stenographer of the surrogate’s court is not within the scope of section 90 or of section 2511.</p>

Motion by defendants to set aside inquest in each cause, and subsequent proceedings for irregularity.

<p>Application by plaintiffs for an injunction.</p>

Motion by defendant to set aside execution. James Miller, as principal, and the other defendants, as his sureties, in 4837 made their joint and' several promissory note for $12,000, which Miller negotiated with the assignees of Benjamin Bathbun; on the sale of the property and effects of Bathbun, Henry H. Sizer, the plaintiff, purchased the note.

<p>Corporations —their liability — Code of Civil Procedure, section 3343, subdivision 18 — Domicile of federal corporation — by what determined.</p> <p>Under section 3843, subdivision 18 of the Code of Civil Procedure, the location of a federal corporation is determined by the place of its principal office. Its domicile is where its principal office is.</p> <p>Where an act provides that corporations consolidated under it shall assume as a condition of the right the payment of the liabilities of the several corporations which are absorbed in the new corporation, each holder of coupons in either of the corporations so absorbed is at liberty to maintain an action directly upon contract against the new corporation, by reason of its having absorbed the one which issued the bonds.</p>

<p>The plaintiff brought an action in this court against the defendant herein to recover $800. The trial eventuated in a verdict for the defendant, on which judgment was entered against the plaintiff for $270.64 costs. This judgment proceeded upon the sole ground that the action had been prematurely brought. After the claim became due, according to this determination, the plaintiff brought the present action for the same cause, and on the 8th of Hay, 1885, succeeded in recovering a judgment against the defendant for the entire amount of his demand and interest, viz., $896. In the present action the plaintiff, who had become a non-resident, deposited, under an order of the court and in lieu of an undertaking, $250 as security for costs. On the 10th of April, 1885, an order founded on the first judgment was granted by judge Hawes, requiring John Beid, the clerk of the city court, to appear and be examined in regard to property said to be in his hands belonging to the judgment debtor; the object of the proceeding, as subsequently developed, being to reach and apply on the first judgment in favor of the defendant the money deposited by the plaintiff as security for costs in the present action. Upon the examination of Mr. Beid, he testified that he held $250 under the aforesaid circumstances. An order was thereupon made on the 13th of April, 1885, requiring Mr. Beid to pay over the deposit to the defendant’s attorney, and it was paid over accordingly. The proceedings to obtain this application of the deposit were ex parte, but are not on that account irregular. The plaintiff now moves to set aside the order directing the payment over of the money, and for a direction that the defendant’s attorney restore the deposit. The application is founded on an affidavit made by Ezra A. Tuttle, one of the plaintiff’s attorneys, in which he swears that, pursuant to the order requiring security for costs, or a deposit in lieu thereof, and not otherwise, “ and for the purpose expressed in said order, deponent deposited on the 8th day of April, 1885, the sum of $250 with the clerk of this coxxrt; that said money was deposited in the name of ‘ Tuttle & Goodell, attorneys for the plaintiff,’ and a receipt therefore was taken by deponent; that said money was not the property of the plaintiff, nor was it deposited to the credit of the plaintiff, nor in any manner subject to his control, but was the property of said Tuttle & Goodell, and was deposited and placed in the custody of the coxxrt for the purpose specified in said ordei', and for no other purpose.” The question presented is whether the money deposited under these circumstances became the property of the defendant only for the limited purposes specified in the order, or generally for all purposes.</p>

Motion to set asidefi.fa. and levy, &c. In October term, 1839, the plaintiffs recovered a judgment in this court against the defendants for $7,965.45 in an action of covenant. On the 22d March, 1843, Elias Avery, one of the defendants, was discharged under the bankrupt law of the United St'ates. In September last an execution was issued on the judgment, and levied upon property alleged by Avery to have been acquired after his discharge.

Motion by defendant for judgment of discontinuance in replevin. Held: issued against Peter Comstock and others, and as he knew of no property of Peter Comstock’s from which he could collect it,he should return it nulla bona ; which last execution was returned nulla bona, on the 11th of August, 1845.

This action is brought by a husband claiming under a business copartnership with his wife the right to a dissolution of the same and the appointment of a receiver.

<p>Appeal from an order denying a motion to vacate an attachment.</p> <p>The motion was made on the papers on which the attachment was granted.</p>

<p>Motion for costs against the defendant.</p>

Motion by defendants for leave to amend their plea filed, by adding to the plea of the general issue, the plea of ne wnques executor. It appeared from defendant’s papers, that Ellen Adair Beatty, the wife of the defendant, Theophilus Beatty, was formerly the. wife of Joseph M. White, deceased, of the state of Florida.

<p>Motion by defendant to vacate judgment and execution, or for an order declaring judgment satisfied.</p> <p>The plaintiff recovered a judgment against the defendant, in June, 1845, for $2,824.79 damages, and $40.92 costs, by default. The recovery against the defendant was had as guarantor of a certain written agreement made between one Amos Hunt and the plaintiff, of which the defendant was the guarantor for the faithful performance on the part of Amos Hunt.' Execution was issued in September last. It appeared from defendant’s papers, that after, the rendition of the judgment, and in September last, an interview took place between the plaintiff and defendant, and Amos Hunt, for the purpose of a compromise, and the plaintiff agreed to receive from the defendant the advances he had made on the contract, costs and interest, in full satisfaction of the judgment, provided the de- - fendant would pay the same in a specified time and manner. The affidavit of Amos Hunt stated that all the moneys advanced by the plaintiff, upon the original contract, was $1,004 ; he also stated that the defendant had paid to the plaintiff, in pursuance of and according to their agreement of compromise, payments which amounted, in the aggregate, to a sum exceeding the advances, costs and interest, to wit: $1,000 in cash, pair of horses, which were agreed upon at $200, and paid the costs of plaintiff’s attorney and sheriff’s fees, for all of which payments receipts were produced. On application by defendant for a discharge of the judgment, the plaintiff claimed there was $700 still due him.</p> <p>On the part of the plaintiff, it appeared from his account stated, that he had charged the defendant, cash as advanced at different times with interest, $2,006.32, and had given defendant credit for $1,200,' as stated by defendant’s papers, leaving a balance due plaintiff of $806.32 ; in the amount charged to defendant, was- an item of $500, for the commission of plaintiff’s agent, who made the agreement on the part of plaintiff, and attended to the business for the plaintiff, and $40 costs paid by plaintiff. Plaintiff stated that the account rendered was cbrrect, and thai the amount to be paid on the compromise had not at the time of entering into it been determined; he always insisted, when talking the matter over with the defendant and Amos Hunt, that he must be paid the advances made and to be made by him, the interest «thereon, the expenses *he had been put to, and the expenses he would have to pay, which included the commissions of his agent.</p>

Motion by Mary Manley for a writ of habeas corpus. The petition of Mary Manley showed that she was the wife of James Manley; she and her husband were living in a state of separation without being divorced ; she was married to him many years since; there were two minor children of such marriage living, to wit: Beza Manley, aged 12 years, and John Manley, aged 4 years; her husband left her in the fall of 1843, and took the two children and a maid servant who lived with them,…

<p>Mandamus— Civil service—Municipal corporation—~When citizen and taxpayer may apply for a writ of mandamus.</p> <p>By section 2 of chapter 410 of the Laws of 1884, it is the duty of the mayor of each city to prescribe such regulations for the admission of persons into the civil service of such city; and to carry out the design and intention of the law it was provided that the mayor shall, from time to time, employ suitable persons to conduct such inquiries and make examinations; and the power to employ includes the obligation to provide for their compensation.</p> <p>Where, under the charter of the city of Buffalo, the mayor made the estimate for what he considered would be the necessary expenses of carrying these provisions of the laws of the state into execution, and communicated and presented such estimate to the common council:</p> <p>Held, that the common council had no power to wholly reject such estimate. Although it may alter or amend the estimate, it has no authority to arbitrarily reject it. Its duty is to consider it in good faith, with sound judgment and discretion; and if any misapprehension has intervened in its amount, to correct it and apportion it to the probable necessities of the service.</p> <p>A writ of mandamus is the appropriate remedy by which the common council may be required to consider the estimate and vote the amount thought necessary to carry out the law.</p> <p>A citizen and a taxpayer has the power and right to apply for the writ.</p> <p>It is only when the application for the writ is made to secure some personal or private redress that the applicant must be shown to be interested in obtaining it before the writ can be directed to issue. Where the act omitted to be performed affects the public interests generally, and all citizens are equally concerned in securing its p'erformance, and that has been enjoined by a law of the state, it is sufficient, to support the application, that the applicant is a citizen and entitled to insist upon the execution of the laws of the state.</p>

Motion by defendant Wm. A. Kelly, to set aside the writ of inquiry, judgment record and other subsequent proceedings in this cause, for irregularity. This suit was commenced upon a bail bond executed by the defendants to H. Wetherby, Esq., sheriff of Onondaga, in the penalty of $1,000, conditioned that John 0.

Motion by plaintiff that the sheriff of Oneida return the execution in this.cause, and pay over to the plaintiff’s attorney the whole amount of money made from the sale of defendants’ property. An execution was issued in this cause and put into the hands of Lent, deputy of the sheriff of Oneida, on the 31st of Decern* ber, 1844, for $1,181.05 and interest from 10th February, 1844.

<p>Motion by defendant in error to set aside writ of error, bill of exceptions and subsequent proceedings in this cause, for irregularity.</p> <p>On the part of the defendant in error, it appeared that this cause originated in a justice’s court, commenced by Lewis Keefer against Henry I. Keefer; Lewis Keefer obtained judgment over $25. Henry I. Keefer appealed to the Dutchess common pleas. On the 26th September, 1843, the 'cause having been brought on for trial, the court non-suited the plaintiff, Lewis Keefer, and a rule for judgment of non-suit was then entered. On the 28d November, 1843, the attorney for Lewis Keefer served upon the attorney for Henry I. Keefer a copy bill of exceptions in the cause; a written stipulation having been given, giving sixty days to serve the exceptions, and sixty days were also given to propose amendments to the bill; within sixty days amendments were prepared, and on the 18th January, 1844, were served on A. L. Pinney, Esq., attorney for Lewis Keefer, by leaving them with his wife at his place of residence, he being then absent from home and no one beipg in his office; another copy amendments was enclosed and addressed to A. L. Pinney, Esq., at Albany, and postage paid, where A. L. Pinney was residing during that winter. .On the 28th July, 1845, a notice 1 was served by Pinney on W. Eno, attorney for Henry I. Keefer, that the bill of exceptions would be settled before Judge Woodworth, before whom the cause was tried on the 4th of August, 1845. On the 4th of June, 1845, the record of judgment in the cause was filed in the Dutchess county clerk’s office. On the 15th October, 1845, Pinney served notice on Eno, that a writ of error had been brought to remove the judgment and proceedings into this court; which writ was tested in July, and returnable in October, 1845 ; also at the same time notice of bail, &c., were served. On the 13th December, 1845, the writ of error and return were filed.</p> <p>Eno, attorney for defendant in error, alleged that the bill of exceptions was settled under the rules of the Dutchess common pleas, according to the amendment served, which provided, that if the party omitted, within four days thereafter, to notify an appearance before the judge, after the other party had proposed amendments, the opposite party should be deemed to have agreed to the amendments as proposed. He also alleged he had not directly or indirectly consented that the time for settling the bill of exceptions should be any different from that prescribed by the rules of the court, or that any notice of appearance before the judge, to settle the same, should be waived; that he did not attend before Judge Wood-worth at the time noticed, nor any other time, to settle the bill of exceptions, and had never agreed to settle it before Judge Woodworth. He also alleged that the amendments served were not allowed and incorporated in the bill of exceptions, except one amendment, the most material being omitted. Defendant in error made the following points:</p> <p>1st. The writ of error was not brought in the two years prescribed by the statute (2 B. S. 493, § 21; 11 Wend. 522); and insisted it was not brought till perfected and filed in the clerk’s office.</p> <p>2d. The bill of exceptions was irregular in being signed by only one judge (13 John. 321): remedy, to set aside on motion. (10 Wend. 255).</p> <p>3d. The bill of exceptions was made wrong, the amendments should have been adopted {Buie 20); Dutchess common pleas.</p> <p>4th. The certificate of the judge was before record filed {Sees. Laws, 1836, 794).</p> <p>It appeared on the part of the plaintiff in error, that Pinney informed Eno, about the time the bill of exceptions was served, that he had left his papers and the charge of this cause in the hands of Walter Reynolds, Esq. (Reynolds and Eno residing at the same place), as he expected to be absent from home and would not be able to attend to it, and service of papers could not be made on Reynolds. Reynolds made out the bill of Exceptions and served it. In December, 1843, he (Pinney) left home for Albany, and remained there till May, 1844. Some time after the June term, 1844, of the Dutchess common pleas, he found in his office a copy of amendments to the bill of exceptions proposed ¿by Eno ; that soon thereafter, he spoke to Eno about settling the exceptions, and asked him if they should go down before Judge Jackson, first judge of Dutchess county, and settle them. Eno replied that he supposed he could compel him (Pinney) to take his amendments as proposed; he (Pinney) told him he thought not. It was then understood between them, that they should wait until the September term of the common pleas, when they would'see Judge Jackson at court, and then settle them. At the September term of the court, Pinney spoke to Eno about settling the exceptions; Eno said he had not got his papers in the cause with him; Pinney asked Eno what was to be done about it; Eno said he must either get them before court was over, or it would have to go off until the next term of the court. Pinney heard no. more from it at that term. At the February term, 1845, Judge Jackson did not attend court; between that time and the next June term, Pinney spoke to Eno about going to Fishkill before Judge Jackson, and settling the exceptions, as Judge Jackson’s term of judge had expired, and he would not attend court again. Eno replied that he believed Judge Jackson did not try the cause, it was tried before Judge Woodworth and the bill would have • to be settled by him; Pinney told Eno to fetch his papers at the next June term (1845), and Judge Woodworth would then settle the exceptions. At the June term, Pinney spoke to Eno in relation to going before Judge Woodworth to settle the exceptions; and Eno replied, “ Oh, let that matter go; ” Pinney answered he could not. Pinney then had suspicions that Eno did not intend to settle the exceptions; and he thereupon served the notice for settlement on the 28th July, 1845, for the 4th of August following; when the bill of exceptions was settled and signed by Judge Woodworth; such of the amendments proposed by Eno was adopted by the judge, as he said was correct, being a part of several of the amendments which were incorporated in the bill of exceptions.</p> <p>It was stated that Walter Eeynolds, Esq., died in January, 1844. Pinney stated that he never received any amendments while in Albany, and no amendments or notice of amendments, except those found in his office, as before stated; he was not aware that the costs had been taxed, or record filed until a few days before the. last Monday in September, 1845 ; he never had been served with a bill of costs and notice of taxation.</p>

Motion by defendant for judgment as in case of non-suit. Defendant moved on the usual affidavit. Plaintiff’s attorney opposed, on the ground that the cause was not at issue ; he stated that the name of the plaintiff’s attorney and residence, to wit, “Auburn, JST.

Motion by plaintiff to set aside the report of a referee and to vacate the judgment entered thereon on the grounds that the report was not filed within the time prescribed by section 1019 of the Code.

Motion by defendant for judgment, as in case of non-suit. The plaintiff noticed the cause for trial at November circuit, 1845, in Montgomery. On the 3d November, defendant’s attorney received from plaintiff’s attorney notice of countermand of his notice of trial. Defendant’s attorney refused to receive the notice of countermand, unless his costs, which he had incurred under the notice of trial, were paid.

Motion by defendant to set aside default and subsequent proceedings. Narr served November 25, 1845. November 29, defendant’s attorney served affidavit and notice of motion to change the venue and copy order staying proceedings on plaintiff’s attorney (not being aware of the 95th rule, he supposed the order to stay enlarged the time to plead). On the 18th December, default was entered. On the 26th December, plaintiff’s attorney received a plea of the general issue.

Action by the plaintiff for construction of the will of August Reyher, deceased. After directing the payment of his debts the testator directed his executor to pay to his father, mother, brother and sister, certain sums of money, and then directs that all the rest, residue and remainder of his estate, both real and personal, be equally divided between his daughter and his widow the plaintiff who was appointed executrix.

Motion by defendant, Doty, for a perpetual stay of execution, and for an order declaring the judgment satisfied. Judgment was entered in this cause in the court of common pleas of Dutchess county, on or about the 13th September, 1844, for damages and costs, $560.54. On the 17th February, 1845, the judgment was assigned to John Cotting by the plaintiff.

<p> Will—Construction of. </p> <p>It is the duty of the court to ascertain from the will itself the intention of the testator, and if the provisions of the will are legal, to give effect to them according to the intention of the testator. Invalid provisions, as a matter of course, must fail.</p> <p>By the will, one-half of the residuary estate was given to trustees, who were directed to receive the income thereof during the lifetime of the testator’s son, H. W. L., and to pay the same to him so long as he should live. But upon his death, leaving a wife him surviving, one-quarter of the income was to be paid to her so long as she should remain unmarried. On his death, without leaving a widow, the whole of such share set apart for his benefit, or if he should leave a widow, three-quarters of such share was given absolutely and in fee to his children. But should his son leave “a widow,” then at her death or remarriage the one-quarter of his share was disposed of in like manner as the rest of the share. H. W. L was married at the time of his father’s death, and he, as well as his then wife, are still living:</p> <p>Held, that it would he premature, at this time, to pronounce this portion of the will invalid, for effect may he given to the testator’s actual disposition of this one-quarter interest, in the event that H. W.* L. should leave no widow at his death.</p> <p>But as to the one-quarter interest of the one-half of the residuary estate continued in the trustees for the benefit of the widow of his son S. A. L., in the event that he should die leaving a widow, the case is different. S. A. L. died after the testator’s death, leaving a widow and several children. These facts present the alternative condition, upon which the trust was to continue after the death of the testator’s son, and upon which the gift to the children was made, and such trust is void, and as to this one-quarter of the one-half of the residuary estate, the testator in law died intestate. (Citing Schetler agt. Smith, 41 N. Y., 328.)</p> <p>Where the will contained a gift of $2,000, upon the death of the testator’s wife, to his grandchildren fl in being” at that time, such of them, however, as were under the age of twenty-three'years to be paid their shares on arriving at that age:</p> <p>SAZ, that grandchildren born after the testator’s death, but during the lifetime of the widow, take a share of this gift. Grandchildren born after the death of the widow do not participate in this legacy. The statute disposes of the shares of the grandchildren who died intestate during tlie lifetime of the widow.</p> <p>Hold, also, that the grandchild H. F. L., although born after the death of his father S. A. L., is embraced within the terms of the gift to his children “ then in being,” and within the provisions of the statute, and the policy of the law should share equally with the brothers and sisters in the share set to his father.</p> <p>The after-added provisions of the will, near its close, by which it is sought to continue the trust over the shares of minors in the residuary estate, is void in so far as the $2,000 held for the life of Eliza Howe is concerned. That portion of the residuary estate has already been subjected to a trust for two lives.</p> <p>The gift to the testator’s grandchildren was made in absolute terms at the time they were limited to take effect, and the latter-added invalid trust may be dropped, and the principal sum should be paid to the persons entitled thereto, when entitled, as though such latter trust had not been attempted to be made.</p>

Motion by plaintiff for an attachment against defendant to collect costs of circuit.

<p>Costs— Tarnation of—Offer of judgment by one of several partners— Code of Civil Procedure, sections 738, 1278,1932.</p> <p>Where defendants were sued as partners upon a partnership indebtedness, and one appeared and defended the action, the other defendant not being served with process and not appearing, the one appearing served an offer to allow judgment to be taken “ against him” for sixty-five dollars and fifty-four cents, with interest and costs. The plaintiff recovered a judgment against the defendants “jointly” for seventy-two dollars and ninety-one cents, but this included interest, so that the judgment, “in amount,” is not more favorable than the offer:</p> <p>Held, that a joint judgment could not have been entered upon the offer; and, therefore, the recovery is more favorable, as it is enforceable against the joint property of both defendants, as well as the property of the defendants served, and the plaintiff is entitled to tax his costs.</p>

Motion by plaintiff, at last December special term, for an order of this court directing the writ of inquiry in this cause to be executed at the circuit. The facts in this case, as appeared, were, that- the plaintiff resided in Burlington, in the state of Vermont, and was one of the most respectable citizens of that state. The defendant, a resident of the city of Troy, bT.

Motion by defendant for retaxation of costs. This suit was commenced by declaration in an action of debt on a bond for the payment of money; defendant demurred to the declaration; plaintiff amended declaration; no demurrer or plea was interposed to the amended declaration; no issue was joined in the cause upon it, and plaintiff took judgment by default. Plaintiff’s attorney made out his bill of costs by items on the taxation.

Motion to vacate a stay pending an appeal to the general term of this court, from an order of the county judge of Sullivan county.

Motion by defendant to set aside default, &c., for irregularity. This was an action of ejectment, brought to recover possession of a farm in Saratoga county, which the defendant claimed in fee. The authority to commence the suit, nor a copy thereof, of C. Stevens, plaintiffs’ attorney, was served on the defendant.

<p>Motion by defendants to set aside report of referees, for irregularity..</p> <p>This cause was noticed for hearing and served on the 19th of December last, for the 24th December. On the 23d December defendants’ attorney* procured an order of a supreme court commissioner upon an affidavit of the absence of a material witness and the loss of a certificate of sale; staying proceedings on the part of the plaintiff until a motion could be made to this court for a postponement of the hearing. On the 24th of December the respective parties and their attorneys appeared before the referees; after the referees were sworn, defendants’ attorney moved to have the hearing adjourned, on the ground of the absence of a witness, &c., and read an affidavit of defendant to that effect; which affidavit the referees decided insufficient. Defendants’ attorney then served on plaintiff’s attorney a copy of the order made by the supreme court commissioner, and a copy of the affidavit on which it was allowed. The defendant did not further appear in the cause, and the plaintiff proceeded to the hearing and took a report in his favor.</p>

<p>Decisions on demurrer to complaint.</p>

Motion by defendant to set aside default, &c. This suit was commenced by capias against three defendants, to wit: Timothy Sabin, Roderick J. Emmons and Ira .Carpenter, and served on them. Declaration filed 1st November, 1845, and judgment perfected December 1st, 1845, against all the defendants.

<p>Motion to continue injunction to restrain the defendant from enforcing a warrant to dispossess the plaintiff from certain premises under a final order.</p> <p>The opinion states the facts.</p>

Motion by defendant, at last December special term, to change venue. Plaintiff’s counsel objected to the sufficiency of defendant’s affidavit, which stated (after naming the witnesses) “ who each and all reside in Tompkins county, are material witnesses for the defendant on the trial of this cause, without the testimony of whom, and the testimony of each and every of whom, he cannot safely proceed,” &c.

Motion by defendant to change venue. This suit was commenced in the Niagara common pleas, where the venue was laid. On the 9th of June, 1845, issue was joined in that court. The action was assumpsit on a promissory note. Defendant removed the cause into this court by a writ of certiorari, returnable at the last October term of this court. Defendant’s papers stated special reasons for changing the venue to the city and county of New York.

Motion by defendant to set aside an order of the circuit judge, granting a new trial to the plaintiff. This cause was tried 3d February, 1844, at the Albany circuit; a verdict was rendered for all of the defendants. Exceptions were taken by plaintiff’s attorney on the trial to the ruling of the circuit judge. A bill of exceptions was afterwards made out. by plaintiff’s attorney, and a copy served on defendants’ attorney.

Motion to strike out plea as false and frivolous. In this cause the plaintiffs in error sued the defendants in error in the New York superior court, in assumpsit, claiming to recover about $18,000, but actually recovered a verdict for only about $9,000. The plaintiffs took exceptions to decisions of the court below, by which his recovery was limited to the latter sum; and the defendants also excepted to decisions whereby the plaintiffs were permitted to recover at all.

<p>Costs will not be allowed on demurrer to a plea m abatement</p>

The appellant was convicted at the Monroe oyer and terminer for having abducted Lena Smith, a girl under the age of sixteen years, for the purpose of having sexual intercourse with her. In the first count in the indictment it is charged that the defendant unlawfully and feloniously did take Lena Smith, a female under sixteen years of age, for the purpose of having sexual intercourse with her.

Motion by defendant to vacate an original order to hold to bail. This suit was commenced by capias, and an order indorsed upon it by the recorder of Buffalo, holding defendant to bail in $2,000.

, Motion by plaintiffs to take from the files of the court a demurrer, filed by defendant to the plaintiffs’ amended declaration. This-suit was commenced by declaration about 25th July, 1843. Defendant’s attorney 'pleaded the general issue to the first four counts of the declaration, and demurred to the fifth and sixth counts.

Motion by defendant Orrin E. Harris to set aside a judgment and execution against Mm, and a judgment on sd.fa. against him and Charles Harris. The defendants were copartners in trade in the town of Schroon, Essex county; commenced their business in 1885, under the firm of C. Harris & Co., and dissolved by mutual consent in the summer of 1887.

Motion by defendant to set aside or vacate a sheriff’s deed. On the 26th of March, 1844, all the interest of the defendant, Elijah Smith, in a farm of land in Tompkins county, was sold on an execution issued on a judgment docketed in the clerk’s office of Tompkins county, October 6, 1841, in favor of the plaintiffs against the defendant, Elijah Smith, for $147.65 cents, damages and costs.

On the 15th day of ¡November, 1867, one Henry G. P. Spencer recovered a judgment in justices’ court of Jefferson county against Eliza Wait, defendant, for forty-four dollars and seventy-three cents damages and three dollars and fifty cents costs. On the second day of ¡December thereof, a transcript of said judgment was duly filed in the Jefferson county clerk’s office. On April 20, 1883, H. G. P. Spencer assigned to plaintiff said judgment.

This was an appeal from an order denying a motion to vacate order for examination of judgment debtor in proceedings supplementary to execution, on the grounds that the affidavit on which said order was obtained did not state that the city court is a court of record, that no previous application for an order to examine judgment debtor had been made* in the action, and that the judgment was rendered upon the judgment debtor’s appearance or personal service of the summons upon…

Motion by defendant for judgment as in case of nonsuit. The venue in this cause was in Columbia. Issue joined 23d February, 1846. A circuit was held in Columbia, commencing on the 16th of March, 1846. Plaintiff’s attorney did not notice the cause for trial, for the alleged reason that there was not sufficient time left to serve a notice by mail, after joining of the issue.

The general term appointed three commissioners on the application of the company to determine on the use of several streets in the city of Brooklyn for a cable street railroad. The commissioners reported against the application and in favor of the property owners, who defended. The company appealed from the commissioners’ report.

Motion by defendant Flint to set aside default and subsequent proceedings. In this case a motion was made at the last special term, held in February, on behalf of Flint, to set aside the declaration served in this cause, on affidavits tending to show that the declaration was not filed until 11th of December, 1845, whereas it was served on the evening of the 10th.

<p>Corporations — Actions against trustee to recover corporate debts as penalty for failure to fie annual reports — Such actions are strictly penal—Party as witness excused, from testifying — Code of Civil Procedure, section 837.</p> <p>Actions against trustee to recover corporate debts as a penalty for failure to file annual reports are “penalties,” within the meaning of section 837 of the Code of Civil Procedure. In such actions a party defendant is privileged from answering any question concerning the facts alleged in the complaint and cannot be compelled to answer upon an examination before trial any question which would support the claim of the plaintiffs, either against himself or his co-defendants.</p>

An appeal by defendant on a motion from decision of circuit judge. On the 13th of May, 1842, the defendant made a motion before Judge Kent, circuit judge of the 1st circuit, to -set aside an execution issued against him by plaintiffs. The circuit judge denied the motion, and the defendant appealed, but had never prosecuted his appeal to a hearing until the present time.

Motion by defendant to set aside execution and judgment, and to have case settled and argued. This cause was an action of assumpsit, and referred by consent to three referees, who made their report in favor of the plaintiffs, on the 18th of December last. A copy of the report was served on defendant’s attorney December 20th.

<p>Summons — Service by publication — What is sufficient service by publication under the Code of Civil Procedure, sections 438, 439.</p> <p>Where there was furnished to the judge who made the order for the service of a summons by publication a verified complaint showing a sufficient cause of action against the defendants to be served, and positive proof by affidavit that they resided in Ireland, and that the attorneys for the plaintiff delivered copies of the summonses to B. with directions to serve them ; proof by the affidavit of one of the attorneys for plaintiff that he was informed and believes that the summons could not, after due diligence, be served on the defendants, supplemented by the affidavit of B., who was charged with the duty of making the service ; that he had served the summons on a number of the defendants, but that he had been unable, with due diligence, to make personal service on the three defendants named, and he also proved their non-residence:</p> <p>Held, that the statutory requirements of the Code of Civil Procedure have been complied with, and that the affidavits are sufficient.</p> <p>The statutes do not require extreme diligence or extraordinary exertion. They only require proper and suitable diligence, such as the circumstances of the case require.</p>

Motion by defendant for double costs. Defendant was a deputy sheriff, of Oswego county. In January, 1840, he received a fieri facias in favor of Philander Rathbun, against one of the plaintiffs, Christian J. Burckle, and levied upon household furniture in the possession of Burckle. Charlotte Leitz (mother-in-law of Burckle, then living in his house) claimed the property, and brought an action of replevin, which was tried, and verdict rendered for defendant (Luce).

<p>Where defendant’s attorney receives a stipulation from plaintiff’s attorney to try at a stated circuit, and gives admission of service, and retains the stipulation, he cannot succeed on a motion for judgment as in case of nonsuit for not trying the cause at an mtenening adjourned circuit.</p>

Motion by defendants in the second entitled cause to vacate an order of the circuit judge of the first circuit. ' On the 13th of December last, an order was made by Judge Edmonds of the first circuit, at a special term held by him, allowing a certiorari, to remove and bring before the circuit judge proceedings in the matter of 1ST. P. Bockwood and H. D. Tuttle ads.

<p>Demurrer to complaint.</p>

Motion by defendants to change the venue. This suit was brought to recover of the defendants damages, alleged to have been sustained by the plaintiffs, by the burning of wood upon a certain tract of wood land of the plaintiffs, situated in the town of Islip in the county of Suffolk : damages laid in the declaration at $10,000 ; the venue was laid in Suffolk county.

<p>Will— Opposing probate of will by legatee when not a forfeiture of a legacy — Code of Civil Procedure, section 2718 — When proceedings should be dismissed in accordance with this section.</p> <p>During the pendency of proceedings for the probate of an alleged will, the contestant, who was one of the next of kin of the decedent and was named in the disputed paper as a legatee, applied for an order directing the payment of a sum of money to be charged against her legacy or her distributive share accordingly as the disputed paper might thereafter he granted or refused probate. Such paper contained a provision declaring that any legatee or devisee who should contest its validity should forfeit thereby the bequest or devise in his favor.</p> <p>The respondents having filed an answer setting forth the foregoing facts and alleging that because of them the legality and validity of the petitioner’s claim was doubtful.</p> <p>Held, that under section 2718 of the Code of Civil Procedure the application must he dismissed.</p>

The action was brought to recover certain chattels, of which the plaintiff claims to be the owner, of the value of about $7,500, and for damages for the detention thereof.

Motion that defendant pay balance of taxed bill of costs, or that precept issue. *This cause was tried at the New-York circuit, in February, 1844, and a verdict rendered for plaintiffs, for $188.79, judgment was entered February 22d, 1844, for the amount of the verdict and costs up to that time; execution was afterwards issued, and the amount collected on the execution.

Motion by plaintiff, to require Samuel Tiffany and George W. Tiffany to pay the judgment in this cause, and costs of a ca. sa., or that an attachment issue. Plaintiff commenced this suit by capias, September 1st, 1845.

<p>Corporations—Beceiver — When and how far corporations attacked, by the state for insolvency may use their corporate funds after the appointment of a receiver.</p> <p>Corporations attacked by the state for insolvency can, even after a receiver is appointed, use their corporate funds for their own protection in the litigation if their action is taken in good faith and with a reasonable hope of success in the controversy.</p>

<p>Motion by defendant in each cause to set aside default and subsequent proceedings, for irregularity.</p> <p>Declaration was on a promissory note in writing, made by defendant to the plaintiffs, on a policy of insurance, payable in such portions and at such times as the directors of the plaintiffs might agreeably to their act of incorporation require: the declaration counted upon this note, and described it in the body of the declaration, but did not set out a copy of the note at the close of the declaration, with a notice that it was the only cause of action, &c.: there was but one count in the declaration. A copy of the declaration was served on defendant’s attorney, February 11th, Í846. On the 25th February, 1846, defendant’s attorney served on plaintiffs’ attorney a copy plea of the general issue, copy special plea in bar, and notice of special matter in bar. On the 7th March, 1846, plaintiffs’ attorney entered default for not pleading, and served on defendant’s attorney, on the 9th March, notice of assessment of damages. There was no affidavit verifying defendant’s pleas, nor other affidavit of merits by defendant. Plaintiffs’ attorney did not return the pleas, or give defendant’s attorney any notice that they would be disregarded, but treated them as a nullity.</p> <p>The facts in each cause were the same. Defendant moved on two sets of papers entitled in each cause separately.</p>

Action by the executors of the will of Jane M. Dugdale for a construction of the fifth clause thereof. The clause of the will under discussion was as follows: “Fifth.

Motion by defendants to set aside inquest, for irregularity. An inquest was taken in this cause on the 3d March last, at the New-York circuit. Several months previous to the in quest, defendants’ attorney served on plaintiff’s attorney an affidavit of merits.

Motion by defendant in the second cause to have the judgment in the first cause set off against the judgment in the second cause. On the 20th November, 1844, judgment of nonpros, was perfected in the first above entitled cause in favor of the defendant for $25.70 costs. On the 19th September, 1845, a verdict was rendered in favor of the plaintiff in the second entitled cause for $87.15, and judgment perfected on the 10th of January, 1846, for $142.49 damages and costs.

<p>Foreign corporation — Service of process on managing agent — Code of Civil Procedure, section 432, subdivision 3.</p> <p>Defendant issued a freight receipt with the name of person served upon it as agent; receipt to be signed for agent not for company; receipt printed, in blank with “Form 21, N. Y.,” at head:</p> <p>Held, that the Code does not specify agency, except person served must be managing agent. - * * Every object is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of service made. The statute is satisfied if he be managing agent to any extent.</p>

<p>Public administi’ator — Procedure of, to cause inquiry to be instituted as to the alleged withholding or concealment of propwiy belonging to an intestates estate— Code of Civil Procedure, sections 2706-2714.</p> <p>First. It is by sections 2706-2714 of the Code of Civil Procedure, and not by section 222 of chapter 410 of the Laws of 1582, that the procedure is now regulated by which the public administrator can cause inquiry to be instituted into the alleged withholding or concealment of property belonging to an intestate’s estate, whereof such public administrator is in charge by virtue of letters issued to him by the surrogate.</p> <p>Second. The inteqiosition of an answer such as is contemplated by section 2710 bars all inquiry concerning property to which the respondent by such answer properly claims title.</p> <p>Ihvrd. But where the applicant alleges that the person cited has in his possession or control certain specified articles of property belonging to the decedent at the time of his death, and the respondent asserts his title to a portion of such property only, such an answer does not effectually bar all further inquiry.</p> <p>Fourth Whether an affidavit is an “answer” within the meaning of section 2710, qucm'e.</p>

Motion by defendant for judgment as in case of nonsuit. Defendant’s notice of motion stated that he moved for judgment as in case of nonsuit in this cause, by reason of the plaintiffs having failed to fie security for costs, according to the statute, &c. Defendant’s papers showed that an absolute order to file security for costs had been granted, which plaintiff had not complied with.

Motion by defendants for judgment as in case of nonsuit, or to set aside an order of reference. Issue was joined in this cause in September last. Plaintiffs’ attorney served notice of trial on defendants’ attorney by mail on the 11th of March last, for a circuit in Eensselaér county, to be held on the 4th Monday of April thereafter; the venue was laid in Eensselaer county.

<p>In an affidavit for motion to change the venue, defendant must state “that he has fully and/<*Zy stated his case to his counsel” m the proper farm; the regular form for such an affidavit should be followed.</p>

This was a motion to compel the defendant, judgment debtor, to deliver certain personal property to a receiver appointed in supplementary proceedings, based upon the judgment rendered in the action against the defendant, who resided in Kings county. The action was brought in the supreme court for and the judgment-roll filed and judgment docketed in Albany county. A transcript was filed and judgment thereon docketed in Kings county.

Since then a case has been made containing the evidence produced on the trial. The action is founded on a policy of insurance issued upon the life of the deceased, the plaintiffs being the executors of his last will and testament. The verdict was in the plain tiff’s favor for the sum of $4,188.

Motion by plaintiff for a reference. The affidavit for a motion was made by S. G. Haven, Esq. the law-partner of plaintiff’s attorney, who stated that he was counsel for the plaintiff in the cause; that Millard Fillmore, Esq., the attorney for the plaintiff, was then absent from the county of Erie, where the venue in the cause was laid, and would not probably be back for some time to come; that the plaintiff resided in the town of Collins, at a remote part of the county of…

<p>Motion by defendant for judgment as in case of nonsuit.</p> <p>Defendant’s papers stated that issue was joined in this cause July 29, 1845. On the 21st of August, 1845, plaintiff’s attorneys noticed the cause for trial at the circuit held for Herkimer county (where the venue was laid), on the third Monday of September, 1845; which circuit was regularly held, and all the business on the calendar disposed of; that on the 13th day of September, and a few days previous to the circuit, the attorneys of the ^respective parties stipulated as follows: (title of the cause,) “ It is hereby stipulated by and between the attorneys for the respective parties in this suit, that the trial of this cause be put off until the next April circuit, to be held in and for Herkimer county, without prejudice to either party.” (Signed by the attorneys of the respective parties, and dated September 13, 1845.) The April circuit was held, and all the business on the calendar disposed of; this causé was not noticed for trial, nor tried at the April circuit pursuant to the stipulation. On the 10th day of April, the last day of the circuit, plaintiff’s attorneys served on defendant’s attorneys a stipulation to try at the next September circuit, and to pay all proper costs pursuant to the rules and practice of this court; which stipulation defendant’s attorneys declined to receive, and returned it to plaintiff’s attorneys.</p>

Motion by defendant to set aside inquest and subsequent proceedings. It appeared from defendant’s papers that issue was joined in this cause on the 21st July, 1845; was noticed for trial for the New-York circuit, held on the fourth Monday of December last. Plaintiff did not proceed *to the trial at that circuit, but stipulated to pay defendant’s costs of the circuit, and bring the cause to trial at the succeeding March circuit, to be held on the first Monday of March, 1846.

Action to recover on an undertaking on appeal to the court of appeals. The trial of this action was commenced before chief justice MoAdam and a jury. After the evidence was all in, there being no disputed questions of fact, the jury was discharged and the case submitted to the court upon the questions of law involved. The facts are sufficiently stated in the opinion.

Motion by defendant to set aside appearance, default and all subsequent proceedings, for irregularity. Defendant’s papers showed that this suit was commenced by declaration, which was specially entitled of the ninth of April, 1846, and was filed April 10th, 1846. Judgment perfected against the defendant by default on the 6th May last.

<p>An affidavit for motion to change venue omitted to state that defendant had fully and fairly stated his case to his counsel, and omitted to state that his witnesses were necessary, also omitted to state that he had fully <md fairly disclosed to his said counsel *the facts which he expected to prove hy each and every of his said witnesses, held, that the defects named were sufficient to deny the motion with costs, but without prejudice, to the end that the defendant’s attorney might have a chance to try again.</p>

Motion by plaintiff for a reference. Plaintiff’s affidavit stated that the action was assumpsit; the declaration contained three counts, and declared for work, labor and services, in carrying for the defendant, *at his request, a quantity of flour and ashes, from the city of Buffalo to the city of Troy. The plea was the general issue, and the trial of the cause would require the examination of a long account on the part of the plaintiff.

<p>Application for books and papers under article 5, title 6, chapter 5, and part 1 of the Revised Statutes (lst ed., 114; 1 R. S. [2d ed.], 114; 1 R. S. [7th ed.], 376).</p>

Motion by plaintiff to set aside default and subsequent proceedings, for irregularity, for not surrejoining; and for leave to put in a demurrer. *The action was assumpsit; declaration contained • the common counts for work and labor, goods sold and delivered, board, lodging, and other necessaries furnished, &c. Defendant pleaded the statute of limitations and infancy together with the general issue, and gave notice (under the latter plea) of set-off.

Motion by plaintiff to set aside a precept, for irregularity. On the third day of June, 1845, a motion was made by defendant, to the special term of this court, then in session, to consolidate this and another cause, which motion was granted, with ten dollars costs.

Motion by defendant to set aside report of referees, for irregularity. This cause was referred at the Ulster circuit, held in March last, to three referees, James 0. Linderman, Jacob H. DeWitt, and Peter Yan Graasbeek, Jr. On the 19th of March, plaintiffs’ attorney noticed the cause for hearing before the referees for the 2d day of April, at 9 o’clock, A. M., at the house of J. Pardee in the village of Kingston.

Motion by defendant to set aside execution, for irregularity. There was a copy of the execution in this cause attached to the moving papers, a seal of the .court of common pleas of the county of Putnam was stated to be attached to the original, and so marked on the copy, and the motion was made on the ground that the execution was issued without the seal of thr court.

Motion by defendant to set aside proceedings on the part of the plaintiff, &c. The principal affidavit upon which the motion was founded Was made by defendant’s attorney ; the venue in the affidavit was “ Albany county,” and was sworn before and the jurat signed by “ J. Eomeyn, judge Eensselaer county courts, and counsellor in supreme court.”

Motion by the plaintiff for costs in -this suit and costs of motion against the defendants, to be levied of the property of Daniel Poppino, deceased. This was a suit brought on a promissory note, executed to plaintiff by John Borrodaile, Daniel Poppino and Robert Alsop, the two last named alleged to be sureties. The word “ security” was appended to the name of Robert Alsop only : defendants pleaded general issue.

Motion by. defendants to set aside writ of scire facias ; also that the plaintiff satisfy the judgment of record with costs. It appeared on the part of the defendants, that in September, 1843, a suit was commenced in favor of Holmes agt. the Yan Sickles (by filing a declaration), on a note of $50. dated Sept. 15, 1842 ; payable Sept. 1, 1843, with interest.

<p>Where plaintiff brought a suit in this court on a justice’s judgment, and on the same day, but subsequent to the service of the declaration, defendant brought an appeal on the judgment to the common pleas, and afterwards pleaded to plaintiff’s declaration *in this court, the general issue and notice subjoined of bringing the appeal and the pendency thereof on the judgment; and on motion of defendant for judgment as in case of nonsuit, by reason of plaintiff’s failing to notice, and bring the cause to trial at a subsequent circuit. Held, that the plaintiff might stipulate on payment of costs of motion.</p>

<p>Motion by defendant to correct the indorsement on the plaintiff’s execution, issued in this cause, &c.</p> <p>This was a suit brought to recover of the defendant, damages for diverting a stream of water. From the defendant’s papers, it appeared that the cause was referred to three persons, as referees, who were to proceed in the same manner as if the action was properly referable. The referees made their report against the defendant, for $966,121-, on the 26th day of August, 1848 ; and on the 1st day of June, 1844, plaintiff entered up judgment for $1,381.88 damages and costs. The defendant brought a writ of error on the judgment to the court for correction of errors, which writ was subsequently quashed, and an order made by the court that the defendant in error recover against the plaintiff in error, his costs to be taxed, and also interest on the amount of the judgment of the supreme court, from the 23d of April, 1845, by way of damages, for the delay and vexation, caused by the bringing of the writ of error. Plaintiff issued execution on the judgment in the supreme court, for the amount of the judgment, and directed, by indorsement thereon, that interest should be collected from the 1st of June, 1844, upon the amount due upon the judgment. Defendant’s papers also stated, that the plaintiff had commenced a suit in this court, on the bond executed on the allowance of the writ of error, to recover thereon the costs and interest, awarded by the court for the correction of -errors. Defendant’s counsel offered plaintiff’s attorney to pay the judgment and the interest and costs awarded by the court of errors, but the offer ivas declined, as the plaintiff required the payment of the principal of the judgment, and of the interest thereon from the time it was docketed., and also the interest awarded by the court for the correction of errorsclaiming that the plaintiff was entitled to double interest on the judgment, from the 23d of April, 1845 (the day the writ of error was served), to the time of the decision of the court of errors, being the time the collection of the judgment was stayed by the writ of error.</p> <p>*Plaintiff’s papers did not alter the principal facts in the case; they gave the history of the whole proceedings minutely, and alleged that the allowance of interest to plaintiff on the judgment, by the court of errors, was by ' way of smart money, and as well for the purpose of indemnifying the plaintiff for his trouble and expenses in the writ of error suit, as for punishing the defendant for his abuse of the process of the court; and it was intended by the court to be given to plaintiff, independent of his right to recover interest on the judgment in this court.</p>

Motion on behalf of the judges to vacate the rules allowing an alternative and peremptory mandamus, and all proceedings therein, and to quash the writs. In May term, 1845, of the Rensselaer common pleas, a writ of certiorari, bond, and return thereto by a justice of the peace of Rensselaer county, was filed with the clerk of the court of common pleas of ^Rensselaer county, wherein Michael Cooney was plaintiff in error, and John Pitch defendant in error.

Motion by defendants in error to quash writ of error. It appeared, from the papers of defendants in error, that the record of judgment in this cause was filed with the clerk of the court of common pleas of the county of St. Lawrence, on the 18th of February last. On the same day plaintiff’s attorney served on defendants’ attorney a notice of the allowance of a writ of error, to the court of common pleas from this court, and of bail in error with their names and additions.

Motion by plaintiff to set aside the proceedings on the part of the defendants, or the defendant Roach, for irregularity. It appeared from plaintiff’s papers that this .was an action of replevin. The writ was issued to the sheriff of the city and county of New-York, commanding him to replevy the property therein mentioned (consisting of some articles of household furniture), and to summon the defendants to appear on the 1st Monday of July, 1845.

<p>Where a motion was made by the defendant’s attorney to set aside default, judgment, &c., and it appeared that defendant’s attorney had received information before the motion was made, that the defendant did not wish to defend the suit, or to have the motion made; and had executed a writing directed to defendant’s attorney, to countermand the notice of motion, which writing (as appeared) was not served on defendant’s attorney, and he did not know of it until the motion was made; the motion was denied, with costs, and defendant’s attorney would have been ordered to pay the costs of opposing the motion, had the written notice been served upon him before making it.</p>

Motion in behalf of Jesse C. Hansee to set aside an execution issued on a judgment in the above entitled action, and the return thereof by the sheriff of Ulster county to the clerk’s office of Orange county; and also to set aside orders for the examination of said Hansee by proceedings supplemental to execution.

An appeal by plaintiff from an order of thp circuit judge of the first circuit, granted at special term.

An appeal by defendant from an order of the circuit judge of the first circuit, vacating an order staying proceedings made at chambers. It appeared from plaintiff’s papers before the circuit judge, that this was an action of replevin. Venue laid in the first circuit. The cause was tried on the 9th of October last, and a verdict rendered for plaintiff; bill of exceptions was served by defendant on the first of January last. On the 7th of Jan-nary plaintiff served amendments.

81, with interest, and the sum of ten dollars costs of motion, together with sheriff’s fees on the execution of the warrant of commitment. The action was brought by the plaintiff, the wife of the defendant, for a separation, and the costs and counsel fee, for the non-payment of which the defendant was adjudged guilty of contempt, were awarded the plaintiff by the final judgment therein.

Motion by defendant for retaxation of costs.. From defendant’s papers, it appeared, that this was an action of assumpsit, referred, at the Rensselaer circuit in 1845, to David Buel, Jr., Esq., sole referee, and brought to a hearing at the city of Troy, on the 9th September, 1845. On the 31st January, 1846, the referee reported in favor of the plaintiff $73.87. Judgment had been perfected and a fieri facias issued to the sheriff of Oswego on the 22d April last.

<p>Fraudulent assignment—Acts of assignors which are fraudulent and render the assignment void— Creditors’ action — Code of Civil Procedure, section 1871 — What is a a sufficient return of execution within this section with respect to judgment creditors’ actions—Estoppel — What does not amount to acquiescence in, or adoption of, an assignment so as to preclude a party from suing to impeach it.</p> <p>In a judgment creditor’s action to set aside as fraudulent a voluntary assignment made by the judgment debtors, it appeared that the execution was returned by the deputy sheriff unsatisfied on thqday on which the action was brought, though the process was not filed by the sheriff until the following day ; that plaintiffs, after having discovered that shortly before the making of the assignment, and in contemplation thereof, the assignors, who were copartners in trade, had withdrawn to their own use a considerable part of the moneys of the firm, signed with other creditors an agreement of compromise, reserving the right to withdraw by a certain day ; that two weeks afterwards plaintiffs obtained an attachment against defendants for fraudulent withdrawal by the latter of moneys from their assets; that plaintiffs afterwards sought to remove the assignee, and then proved their claim and delivered their proof to the assignee, annexing a statement that they did not waive their rights under the attachment or recognize the validity of the assignment, unless it should be held to be binding upon them :</p> <p>Held, first, that the return of execution was sufficient within the provisions of the Code and the rule in equity with respect to the bringing of judgment creditors’ actions.</p> <p>Second. That plaintiffs had not by their acts acquiesced in or adopted the assignment so as to be precluded from suing to impeach it.</p> <p>Third. That the assignment was void ; the assignors, while professing to surrender all their property through it, having intentionally withheld a considerable part of their estate from its operation.</p>

<p>A new trial may be granted on the ground of surprise, where the plaintiff is non. suited, not upon the principal question involved in the controversy, but for the failure to establish a subordinate fact, about'the existence of which there is no doubt; the plaintiff having exercised due diligence in preparing the cause for trial, and had reason to believe that the evidence which he could produce would fully establish such subordinate fact, but which unexpectedly failed him on the trial</p> <p>Although new trials are not often granted upon the ground of surprise, yet there may be cases which call for relief in that form. Such motions are proper to be heard at special terms.</p>

<p>Mutual benefit association — When member does not forfeit his claim for benefit by failure to pay assessment or failure to serve proofs of death.</p> <p>When the by-laws of a mutual benefit association provided that, “ If any member shall neglect to pay his annual dues or assessments to the general secretary or to the secretary of the local board, within thirty days from the date of a notice to pay the same by the gener'al secretary, he shall forfeit all claims on the society, until reinstated,, as provided in the next section:”</p> <p>Held, that the forfeiture is only incurred by the failure for “ thirty days” to pay on a notice given “by the general secretary.”</p> <p>A notice given by the local secretary cannot be deemed one “by the general secretary; nor are cards issued in the name of the general secretary, to which his signature is appended in print, and which the local secretary has filled up and addressed, in any sense a notice “by the general secretary.”</p> <p>A notice to do an act, which is required to be given by a particular person named contemplates the personal action and judgment of the person authorized to give such notice, and involves the exercise of power and discretion to be exercised by the individual himself which he cannot delegate to another.</p> <p>Where on the death of a member application was made to the proper officer for the necessary blanks to furnish proof of death, which were refused on the ground that such member did not pay a certain assessment and the officer did not consider he was a member:</p> <p>Held, that this was a waiver of proof and notice of death.</p>

This is a motion by the petitioner, the railroad company, for an order vacating and setting aside an order made by this court October 25, 1883, appointing commissioners to appraise lands for railroad purposes on the ground of the misconduct of two of the commissioners.

Motion by defendant on appeal from an order of supreme court commissioner holding defendant to bail, and to set aside the order. The affidavit upon which the defendant was held to bail by the commissioner read as follows: “State of New-York, county of Orange, ss. Ebenezer Seely, of the town of Chester, in said county, being duly sworn, deposes and says, that he is about to commence a suit, in the supreme court of said state, against Elisha 0.

Motion by defendant to set aside default and subsequent proceedings. This suit was commenced by declaration on a promissory note. Declarations served 16th of December, 1845. Defendant’s attorney pleaded general issue and special plea, setting forth defendant’s insolvent discharge. The pleas were signed by defendant’s attorney, and his name and residence endorsed thereon as defendant’s attorney, but not accompanied by an affidavit of merits, or affidavit of verification.

<p>Practice— On opening defaults when the judgment is allowed to stand as security — Effect of the Urn.</p> <p>Where a judgment by default is opened on condition that the lien of the judgment shall stand as security, the plaintiff, if he finally succeeds, must enter a new judgment by filing a fresh roll containing all the papers in the case, the same as if no former roll had been filed. The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudícala, but leaves it in full force as a lien or collateral security. If the plaintiff fails in the action the security "is returned by canceling the collateral judgment, which loses its legal vitality and effect when the action fails. But if the plaintiff succeeds the security judgment is not impaired, but may be enforced, if necessary, by the plaintiff in aid of the final judgment. In case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judgment.</p>

Motion by plaintiffs to set aside default for not surrejoining, and all subsequent proceedings, for irregularity. It appeared from plaintiffs’ papers that this was an action ■ of assumpsit commenced by capias ad respondendum on a promissory note. The writ served April 16, 1845. The declaration contained the common money counts, and other common counts in assumpsit.

The plaintiff brought a suit in January last against her husband for limited divorce on the ground of alleged cruelty. The parties were married in this city on May 10, 1879. The case was sent before a referee, whose bill amounts to $150. This sum the defendant alleges his inability to pay, as well as denying the charges brought against him.

Motion by defendants to strike out the fourth count of the plaintiff’s declaration in each cause. This was a motion to strike out the fourth count of the plaintiffs’ declarations, on the ground of duplicity, the third and fourth counts being for the same cause of action.

<p>Imprisoned debtor—Discharge from arrest under the insolvent law — When granted— That defendant converted money received in a fiduciary capacity, does not prevent his disaha/rge.</p> <p>Where the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff, while acting in a fiduciary capacity, and was imprisoned in default of bail, and on his application for a discharge his examination showed that in violation of his trust he had used the money and property for his own benefit:</p> <p>Held, that he was entitled to his discharge, because it did not appear that he had disposed or made over any part of his own property, with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors.</p>

Motion by defendant to set aside declaration and notice, for irregularity.

Motion by defendant to set aside declaration, together with such other proceedings in this cause as to the court should seem proper. It appeared from the moving papers that this was an action of replevin. (Copies of the writs of replevin were annexed.) That the writ was served before *the return day thereof, and the property named therein delivered to the plaintiff, or some one in her behalf.

Motion by defendant for judgment as in ease of nonsuit. Held: for the purpose of procuring the attendance of his witnesses, and returned on the 13th of August with his witnesses, and was informed by Sayre that he had settled the cause with plaintiff’s attorney, and delivered over to him the deed and other papers which were the subject matter of the suit.

<p>Jury — Effect upon a verdict when the entire jury is unsworn and no objection made— Code of Civil Procedure, sections 731, 1016, 1166.</p> <p>If a trial proceeds, and a verdict be rendered without a jury being sworn, such a verdict is not irregular and void, when neither party asked that the oath should be administered.</p> <p>That which the law requires to be done for the protection of a party, may be waived, and the failure to object is a waiver. Nor can failure to object be excused by alleged ignorance.</p>

Motion by defendant to set aside the proceedings in this cause, as irregular. This was a motion to set aside the proceedings of the plaintiff in this cause, which was brought on a bail bond given in a suit, entitled “ Supreme Court, Stephen D. Travis agt. Addison Hill,” for irregularity or for relief on terms.

Motion by defendant for judgment' of nonpros. The defendant moved for judgment of non pros, on the ground that the plaintiffs had not delivered oyer of the sealed indentures on which they declared, pursuant to a demand by the defendant, The affidavit stated that the declaration was upon sealed indentures, and that oyer was long since demanded; but it was not stated that the plaintiffs made profert of the indentures in the declaration.

Motion by defendants for judgment of nonpros. Defendants’ papers showed that an altere ative ana peremptory order had been obtained and served on plaintiff’s attorney, requiring the plaintiff to furnish the *attorney for the defendants with an account in writing of the particulars of his demand, for which this action was brought; and that no bill of particulars had been furnished pursuant to such orders.

<p>Special guan'dian — Who should not he appointed — Bule 10 of the surrogate’s court.</p> <p>In a controversy over probate a special guardian of an infant interested in the estate should not be appointed upon the nomination of the proponent; nor should any person be appointed such guardian who is associated in business with the proponent’s attorney or counsel.</p> <p>Rule 10 of the surrogate’s court must be strictly enforced, unless perhaps when it is clearly apparent that the interests of the infant will be best subserved by the establishment of the disputed paper as a will. In case a special guardian has been inadvertently appointed in disregard of Rule 10 he should be superseded.</p>

Motion by defendant to set aside declaration, for irregularity. The motion was made on two grounds, to wit: that the declaration was not entitled of any term of this court. Also, that the declaration alleged a cause of action accruing subsequent to the time when the suit was commenced by the writ of replevin.

<p>Appeal from judgment on dismissal of complaint.</p>

Motion by defendant in error to strike out a special assignment of errors contained in a general assignment of errors in the cause, and a part of the return made to the writ of error therein. It appeared on the part of the plaintiff in error in this cause, that the defendant in error commenced, ■•by declaration, an action of assumpsit in the court of common pleas of the city and county of New York, against Kanouse, plaintiff in error.

<p>Corporation — When deemed to have acquiesced in illegal acts of their trustees.</p> <p>A trustee of a corporation, whose attendance is necessary to make a quorum, cannot act upon a claim in his own favor to bind the corporation, and by his presence he thus acts.</p> <p>Such a transaction could be at once assailed in a court of equity, and would be set aside in a suit brought by the corporation, or in the event of its unwillingness to proceed at the instance of the stockholders interested at the time.</p> <p>But such conduct and action on the part of the trustees of a corporation may, with knowledge thereof, be acquiesced in and accepted by the corporation and the stockholders, in which event they could not after-wards assail it, especially when such acquiescence has continued for several years, and the stock donated has been actually received by the donee, and has formed the subject of new engagements and liability on his part with others.</p> <p>When stockholders neglect to promptly and actively condemn the unauthorized act of the trustees, and to seek judicial relief, they will be deemed to have acquiesced in it, and an unconscionable agreement will not be disturbed when there has been a ratification of it after time has been had for consideration.</p>

Motion by defendants in error to quash a certiorari. This was a case of appeal from an order of filiation made i>y Garrit Gilbert and Bobert Taylor, Esqs., special justices of the peace, &c., in the city of Hew-York, to the judges of the court of general sessions of the peace, in and for the city and county of New-York. This cause was tried on the 17th of February, 1844, and the court affirmed the order of filiation in all respects.

Motion by plaintiff in error to set aside an alias ca. sa., issued against him. The action in this cause was trespass.

<p>Motion for costs upon a reference of a claim against the estate of a deceased person under the Revised Statutes.</p>

<p>Motioist by defendant in error that one Sidney Mason appear and join in the writ of error in this cause, and in the proceedings therein, and pay the costs of the motion and proceedings ; and, in case of his non-appearance, that his default be entered, &c.</p> <p>At the last -June special term the defendant in error made a motion to quash the writ of error, &c., in this cause, for irregularity, on papers which showed that the writ of error in the cause was prosecuted out of this court by the plaintiff in error, who was one of the defendants in the court below, for the purpose of removing into this court the record and proceedings in a judgment recovered in the superior court of the city of New-York, by the defendant in error, against the plaintiff in error and Sidney Mason as co-partners, in an action of assumpsit for $4069.26 damages and costs, on the 25th day of October, 1845. The writ of error was tested on the third Monday of October, 1845, and returnable on the first Monday of January, 1846. The suit in the superior court was brought against Sidney D. Mason and William D. Thompson as co-partners. The capias was served on Thompson only and not on Mason, as it was alleged that Mason, at the time of the issuing and return of the capias, and for a long time subsequent, was beyond *seas and out of the jurisdiction of the court. Thompson appeared and defended the suit, and judgment was entered up against both defendants. The writ of error was sued out in the name of Thompson alone impleaded with Maspn as plaintiff in error. It was alleged, that at the time the writ was issued, Mason was in full life, within the state, and not incapable, from insanity or otherwise, of joining in the writ; and that Mason had never been made a party to the writ of error. The bond given on the allowance of the writ of error was executed by Thompson as principal with Mason, his co-defendant in the court below, and another person, as sureties; and the usual order granted staying proceedings on execution, &c. Defendant in error served notice of exceptions to the sufficiency, of the sureties in the bond, without waiving any other objection which he was entitled to take against the-bond or either of the sureties, and also claimed and insisted that Sidney Mason was not competent bail in error, to stay the issuing of execution, or to authorize the allowance of the writ of error. The sureties subsequently justified by affidavit, which was filed. The writ of error was returned and filed on the 11th of April last. On the 6th of May the plaintiff in error filed and served his assignment of errors; the only error assigned being error in fact, namely, that at the time of the commencement of the suit upon which the judgment was rendered, he was and ever since had continued to be and then was consul of the Republic of Ecuador, for the port of New-York, and not liable to be sued in the state courts. That no leave was ever applied for or obtained from this court, by or on behalf of the plaintiff in error, to the issuing of the writ of error or to the assignment of such error in fact; that the contract on which the judgment was rendered was made by the plaintiff in error jointly with Sidney Mason, as partner of the commercial'firm of Mason & Thompson, as appeared by the return to "the writ of error; and that Sidney Mason was not, at the time of the commencement of this suit in the court below, nor had he been at any time since, a consul or vice consul, or liable to be sued by the defendant in error in any district court of the United States.</p> <p>On the part of the plaintiff in error, it appeared that, before the issuing of the writ of error, his attorneys made application, in writing and verbally, to Mason, to join in the writ of error in this cause, which he declined to do, stating that he considered the whole of the business with Yalarino an affair of Mr. Thompson’s, and he desired to have nothing to do with it; but, if Thompson desired it, he would become one of his sureties on bringing the writ. Thompson’s affidavit stated that Mason left New-York *upon a journey to Virginia, one day before the capias was served in the cause in the court below, and denied that he was beyond seas at the time of the commencement of the suit, or had been at any time since; that he returned about two weeks after he left for Virginia.</p> <p>Upon these facts, Mr. Justice Jewett, at the June special term, made an order as follows: “ Ordered, that Sidney Mason appear in this court on the first day of the next special term thereof, and then join in the writ of error and the proceedings of this cause, or be forever precluded from bringing another writ of error on the judgment in said cause; and in the mean time all further proceedings on such writ to be stayed.”</p> <p>The attorney for defendant in error served on Sidney Mason, and on the attorneys for plaintiff in error, a copy of the order and notice of this motion on the 20th of July last, and gave notice that the papers upon which the order was founded, as well as the order itself, would be used on this motion.</p>

Motion by defendant for a perpetual stay of execution, and that the judgment in this cause be set aside or satisfied. About the first of August, 1844, the defendant retained the plaintiff, as solicitor and counselor in chancery, to appear for him in a chancery suit.

Motion by defendant to set aside an execution issued in the second cause, or to correct the indorsement on it according to statute. It appeared that the plaintiff recovered judgment by default in both the above causes. In the first cause, on two promissory motes, signed by, defendant, Smith, as maker, one of which was indorsed by the defendant, Wright, and the other indorsed by another person and not indorsed by Wright.

<p>Motion by both parties on appeal respectively from taxation of costs.</p> <p>Judgment for the defendants was rendered respectively in the above cause, and in thirty-six other causes, in the superior court of the city of New-York, on the 1st of May, 1843, for costs - in each cause. These judgments were entered in pursuance of a stipulation, entered into to make the decision of the thirty-seven causes dependent upon the decision of the case of Amos Lawrence and others against the same, defendants likewise entered in the superior court, and upon which a writ of error was brought to the supreme court and subsequently carried to the court *of errors. The questions being the same in the thirty-seven causes as in the Lawrence case. The stipulation provided that either party should be at liberty to enter up judgment in the supreme court by a common rule, upon the stipulation, in accordance with the judgment of the court, to be made in the Lawrence case ; but if a writ of error should be brought by either party upon the judgment of the supreme court, in the Lawrence case, no proceedings should be had upon the judgment in the supreme court in the thirty-seven causes, until the decision of the court of errors in the Lawrence case.</p> <p>The judgment of the superior court, in the Lawrence case, having been affirmed by the supreme court and the court of errors, the attorney for defendants in the thirty-seven causes claimed the right to enter up judgment in this court, on the stipulation, and made out a bill of costs in the above entitled cause (one of the thirty-seven) as follows:</p> <p>“ Atty. and counsel retaining fee, . $8 00 Deducted on $3. Dr. writ of error, $1.50; 2 co-taxation. pies, $1.50, .... 3 00 2. Dr. assignment of error, $1; 2 copies, $1, .... 2 00 2. Dr. joinder in error,'$1; 2 copies, $1,..... 2 00 Dr. costs, $1; copy to serve, $0.50, 1 50 Notice of taxing and service, . 0 50 Taxation and attendance, 0 75 Drg. judgment record, . . 3 00 Judge signing same, 0 13 Clerk filing record, . 1 00 Affidavit of disbursements, . 0 63 .13 3 transcripts, .19; postage, .10; dockg., ... 0 00 .35 Dr. execution, $1 ; notice on same .... 1 25 .13 Sheriff éntg., 13; clerk entg., 13, . 0 26 Clerk entg. satisfaction, . 0 13 $24 63 .7 51 Taxed at $17 12</p> <p>Add interest on judgment of superior court up to time of taxation.”</p> <p>Plaintiff’s attorney alleged, that judgment in the above cause was never removed by writ of error to the supreme court; that no writ of error was ever drawn or issued on behalf of the plaintiffs; that no ^assignment of errors was ever drawn, filed or served, and no joinder in error was served; and that the cause had never existed in the supreme court.</p> <p>The clerk of defendants’ attorney made affidavit, that a writ of error, assignment of error and joinder in error were drawn, in the above cause, before the costs were noticed for taxation; and that forms of judgment records had been printed to be used in the thirty-seven causes in the supreme court, on the part of the defendants.</p> <p>Plaintiff’s attorney, on the taxation, objected: 1st, That no writ of error had ever been brought upon the judgment between the above parties in the superior - court; no such cause as above 'entitled had ever existed in the supreme court, and that no costs should be taxed. 2d, That the charge of a counsel retaining fee was erroneous, there being no issue of fact or law. 3d, Affidavit of disbursements was unnecessary. All of which objections the taxing officer overruled.</p> <p>Defendants’ attorney alleged, as ground of his appeal, that the following items were disallowed and stricken out by the taxing officer, to wit:</p> <p>Dr. writ of error, $1.50 ; 2 copies, $1.50, . $3 00</p> <p>Dr. assignment of error, $1; 2 copies, $1, . 2 00</p> <p>Dr. joinder in error, $1; 2 copies, $1, . 2 00</p>

■ Motion by defendant to'vacate an order holding defendant to bail. It appeared that this suit was an action for slander, commenced by capias, upon which was an order, endorsed by a supreme court commissioner, to hold the defendant to bail in the sum of $500.

<p>Assignment— Surviving partner — No power without consent and eoneurrence of the representative of deceased partner to make assignment for benefit of creditors of the firm with preferences—When court of equity will take possession of estate and appoint receiver.</p> <p>A surviving partner has no power without*ihe consent and concurrence of the representatives of the deceased partners to make an assignment to a trustee for the benefit of creditors of the firm, and to create preferences among the creditors by such an assignment; and the attempt to do that is such an abuse of the surviving partner’s powers as justifies the representatives of the deceased partner in applying to a court of equity to take possession of the estate by a receiver.</p>

<p>Motion by defendant, Williams, that plaintiffs file security for costs.</p> <p>Defendant, Williams, had obtained and served ah order, that plaintiffs file security for costs, or show cause, &c.; ana moved upon the papers upon which the alternative order was obtained, entitled as above. Plaintiffs’ affidavit to oppose the motion was entitled in the same way.</p>

Motion on the part of Garret 0. Newkirk for leave to come in and defend an action of ejectment in the place of defendant, Steen. Plaintiff brought ejectment for a dower right against defendant for one-third of 150 acres of land. Defendant was tenant to Garret C. Newkirk, and *was in possession of all the premises in question except about twenty acres, which was in possession of Garret 0. New-kirk. Plaintiff had previously brought ejectment against Garret 0.

<p>It is not necessary to state, in an affidavit for judgment as in case of nonsuit, what the cause of action, is.</p> <p>Motion by defendant for judgment as in case of nonsuit.</p> <p>" Defendant moved for judgment as in case of nonsuit, after stipulation, upon an affidavit which did not state what the cause of action was, but was in the usual form, showing that issue was joined, &c., and that the cause was not noticed for trial, nor tried in pursuance of the stipulation.</p>

Motion by William P. Stanton to change the venue. William P. Stanton, one of the defendants, moved to change the venue from the city and county of New-York to the county of Monroe; Henry Stanton, the other defendant, not having been served with a copy declaration at the time the motion was noticed. The action was assumpsit for a bill of goods and merchandise, sold and delivered by the plaintiffs to the defendants in the city of New-York.

Motion by plaintiff to strike out defendants’ demurrer with costs.

<p>Injunction— Trade-marh— The right of a party to use another’s name upon hisca/rds, Sc., by saying “late with,” Sc.</p> <p>A person who has been a hired workman of another, a mere employe for a time, afterwards engaging in the same business of his former employer and occupying a store in the same city, has no right to use the name of such former employer upon his cards, signs, &c., by saying “late with,” &c., and such use will be restrained by injunction.</p>

<p>Costs—What to be allowed on offer of judgment for a specific swm, with interest and costs— Code of Civil Procedure, sections 8251, 420, 788.</p> <p>In an action upon contract, where the amount due is capable of computation, and may be easily ascertained in that way, and the defendant serves an offer of judgment for a specific sum, with interest and costs; and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is only entitled to costs before notice of trial — fifteen dollars. No application to the court was necessary, and but fifteen dollars are recoverable.</p> <p>Where the action is against a receiver, and the plaintiff has to obtain .cave to sue the receiver, he is not entitled to costs as upon application to the court.</p>

<p>Appeal by the executrix and trustee from portions of the decree of the surrogate entered upon her annual accounting.</p>

<p>• Amendment of pleadings — When and to what extent allowed — Code of Civil Procedure, sections 451, 1932, 1934, 1935 — Factors — Who are—Distinction between brokers and factors and their rights and liabilities— Offset.</p> <p>The court may on the trial allow the pleadings to be amended by striking out the words “and son” in the title of the action and inserting in place thereof the name of the son.</p> <p>Where a broker has possession of goods to be sold, and sells them in his own name, he is a factor, and any offset existing against the latter may be set up to a claim made by the true owner of the property to recover the contract-price, provided the vendee purchased in good faith and without notice of the true facts.</p> <p>The distinction between brokers and factors and their rights and liabilities, considered.</p> <p>Perhaps, in the case put, the true owner might reclaim his goods from the vendee, if the right to do so is exercised within a reasonable time. But the right may be lost by delay or by bringing an action to recover the price.</p>

<p>Guardian—Limitation of the surrogate’s authority to remove testamentary guardian— Code of Civil Procedure, sections 2472, 2817, 2832, 2858.</p> <p>One who is a lawful incumbent of the office of guardian, either by appointment of the surrogate or by virtue of a testamentary provision, can successfully resist in this court an application for his removal until such facts and circumstances have been established as furnish statutory warrant for his suppression.</p> <p>If, within the meaning of subdivision 2 of section 2817 of the Code of Civil Procedure, a guardian has been guilty of "misconduct in the execution of her trust,” and has thereby become “unfit” to he continued in her office, she must be removed; otherwise the surrogate is powerless to displace her.</p>

The above action was brought to foreclose a mortgage made by David W. Evans in 1879, to the plaintiff to secure the sum of $5,000 payable January, 1884. The defense was payment. On the trial plaintiff produced the bond and mortgage mentioned in the complaint upon which he. claimed interest from January, 1884.

<p>Referee — When report will not be set aside on the ground that referee was biased—Relations from which bias will not be inferred.</p> <p>While courts should be careful to see that no improper relations exist between a referee and one of the parties to an action, and that nothing occurs during the progress of the trial which shall in anywise tend to produce a favorable impression in behalf of one of the parties to the reference, yet such scrutiny should not be carried to the extreme length of holding that because a referee sustains friendly relations to the kin of one of the parties, relations so close as to lead to his employment as his legal adviser, and the legal adviser of his estate, that such relations would bias his judgment in the action in which he had been appointed referee.</p> <p>When the referee had heard the proofs, and made his report finding in favor of the plaintiff, and from the judgment perfected upon such report defendant had appealed to the general term, which general term had affirmed the judgment, and the defendant had appealed to the court of appeals, and while such appeal was still pending defendant made a motion to set aside the report of the referee upon the ground that such referee was biased in favor of the plaintiff:</p> <p>Held, that the motion resting solely and only upon the ground that the referee was the friend and legal adviser of the nephew of the plaintiff, such fact of itself would not warrant the inference of bias and partiality, and especially when it appeared that this was known to the counsel of the party moving before the trial of the action was commenced.</p>

<p>Cornell University—Who entitled to free scholarship under Laws of 1873, chapter 664.</p> <p>The person to be selected, for a free scholarship in the Cornell University-must be a student from one of the academies or public schools of the county from which he or she is to be selected.</p> <p>The State Normal School, located at Cortland,' is not one of the public schools of Tompkins county within the -intent and meaning of the statute, and an attendance at such school does not entitle a person tó such scholarship.</p> <p>The candidates for such free scholarship should, each year, be selected from scholars in the academies and public schools during that year, and not from the best scholars who have at any time attended the public schools and academies of the county.</p> <p>The position that a person is not a scholar of a high school because she was graduated at the close of its last term, and hence ineligible as a candidate, cannot be sustained. Eor the purposes of the act she must be regarded as a scholar of that school, at least until the end of the school year, and until that school shall again commence its sessions. The intention of the statute is that she may have all the advantages of that school so long as she is a member of it, and upon her final examination and graduation may then become a candidate for such scholarship.</p>

<p>Motion to dismiss an appeal. The facts are sufficiently stated in the opinion.</p>

<p>Security for costs — Non-resident Timing place of lousiness in city not required, to give— Code of Civil Procedure, sections 3208, 8160.</p> <p>In an action in the city court of New York, a plaintiff residing without the state, hut having an office in the city of New York, where he regularly transacts business in person, cannot be required to give security for costs.</p> <p>Sections 8268 and 3160 Code of Civil Procedure construed.</p>

<p>Action to enjoin the defendants from issuing a warrant to collect $500 for the benefit of Day & Romer.</p>

<p>Motions to vacate orders for the examination of Henry A. Taylor on proceedings supplementary to execution.</p>

Testatok gives to his wife for life and widowhood “ the use and income” of all his estate, “subject to the necessary expenses of living, * * * for my two sons, * * * •until they arrive at the age of twenty-one years, if it should be necessary, and the necessary expenses of good schooling and a collegiate education, if either or both should desire it,” giving them each on reaching thirty years $10,000, to pay which the executors' are authorized to dispose of any part of the…

<p>The facts are sufficiently set forth in the opinion.</p>

Motion by George R. Crouse and another, as attaching creditors of defendants, to set aside the judgment and execution herein, because the acceptance of defendants’ offer of judgment had not annexed thereto the affidavit of plaintiff’s attorney, that he was duly authorized to make it on behalf of the plaintiffs. Also motion by plaintiff for leave to amend mino pro tuno by now annexing such affidavit.

<p>Action for specific performance.</p>

<p>Street rail/roads — Commissioners — When application for appointment of, should he denied.</p> <p>Where, upon an application to the general term for the appointment of commissioners to determine whether a proposed railroad should be constructed through certain streets in New York city, it appears that such railroad cannot legally be built by reason of the refusal of other railroad companies already lawfully occupying the streets with their tracks to consent to its construction, such application should be denied (Davis, P. J., dissenting).</p>

Motion by defendant for an order directing the clerk to tax the defendant’s costs, and that the amount thereof be set off against the same amount of plaintiff’s costs.

<p>jDeed— Covenant against nuisances— Construction of.</p> <p>A livery stable would not be offensive to a neighborhood within the méaning of a covenant not to erect any building for or to carry on upon certain premises certain enumerated trades, cow stables or hog pens, “ or any olher dangerous, noxious, unwholesome or offensive establishment, trade or calling, or business whatsoever.’’ The word “cow” before "stables” limited the establishments prohibited of the same class, and tne words " other,” &c., do not include stables where domestic animals are to be kept.</p>

This action is brought by the plaintiff on behalf of herself, and also for the benefit of all the heirs-at-law and next of kin of Henry Parsons Farnam, deceased, who will come in and contribute to the expenses of the action. The defendants’ administrators demur to the complaint upon the ground that it appears upon the face of the complaint that there is a defect of parties plaintiff or defendants, in that Charles 1ST. Farnam, individually, and Sarah H. Burr and Mary hi.

<p>Will—Rules as to construction of— Who entitled to distributive shares of the estate.</p> <p>Where a will provided as follows: “Mrst. After all my lawful debts are paid and discharged, I give and bequeath to C. M., who is now living with me, his heirs and assigns, all that house, lot, tract and parcel of land where I now reside in the town of Almont, Alleghany county, N. Y., containing about forty acres of land.” Immediately following this there are sixteen “ items ” by which the testator bequeaths to twenty-two persons specific sums of money; each clause of the bequest commences: “ I give and devise.” The eighteenth clause reads: “ I give and devise all the rest, residue and remainder of my real estate and of my personal estate, goods and chattels of every kind whatsoever, if any there shall be after paying my debts and the legacies hereinafter named to the several legatees hereinbefore named, to be divided between them share and share alike.” In a codicil to the will the testator slightly changed some of the bequests and at the end of which was this clause: “ I have by my last will referred to above, willed that- any remainder or residue of my estate real or personal which may remain after paying debts and legacies, be distributed among the several legatees share and share alike. Now, therefore, I do by this my writing, which I hereby declare to be a codicil to my said will and to be taken as a part thereof, order and declare that my will is, that such distribution be made, not share and share alike, to the legatees, but pro rata or in proportion to the several legacies excepting E. L. and H. B. F. who are not to share in such distribution,” 0. M. is the only devisee, and the real property above mentioned is the only real property devised. The testator died leaving a small parcel of land undisposed of in any way other than by such residuary clause in the will and codicil.</p> <p>Reid, that the devisee 0. M. is not entitled to any portion of the residuary estate, and it should be distributed to the legatees named in the will, in the proportion therein named.</p> <p>Strictly speaking, real estate given by will is devised, and personal estate is bequeathed. The one receiving real estate is termed a devisee, and the one taking personal property a legatee. One act of giving is a devise, the other a bequest. The person receiving a devise ora bequest is a beneficiary.</p> <p>A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a difierent sense, in which case the sense in which he appears to have used them will be the sense in which they are to be construed.</p> <p>The ordinary as well as technical meaning of the word “ legacy ” is a gift of property by will other than real estate ; this is its strict and primary sense and the one generally accepted. This is the meaning that will be attached to the word by the court, unless it clearly appear from the will itself that the testator has used the word in a difierent sense.</p>

<p>Contracts—Evidence— Oral contract to convey land—Admissibility of evidence—Code of Civil Procedure, section 839.</p> <p>An agreement of purchase and sale reduced to writing, &c., is not at all necessary when an action is brought to recover an agreed price for lands actually sold and conveyed pursuant to an oral agreement, when the consideration remains unpaid.</p> <p>A party is not precluded from testifying to extraneous facts, which tend to show that one who has testified to such a transaction has testified falsely, or that it is improbable that his statement can be true.</p> <p>It is not the intention of the Code (sec. 839) to prevent a party to a suit from testifying to any extrinsic fact that tends to contradict a witness who swears to transactions or communications had between such party and a deceased person, even where he cannot directly testify that no such conversation or transaction was ever had.</p> <p>It was not the intention to prevent the contradiction of a living witness, but to prevent a living party to a transaction or communication from testifying to it himself when death has closed the mouth of the other party.</p> <p>So when a living witness swears to a contract made by a defendant with a deceased party at a specified time or place, there is nothing in the Code to prevent the defendant from testifying that at the time named he was in Europe or at some distant place, rendering it impossible that the witness speaks the truth.</p>

<p>Baib'oads — Negligence — Questions of fact for jury— Contributory negligence— When injured party guilty of</p> <p>Plaintiff arriving at the passenger depot of the defendants’ railroad, which has two modes of ingress and egress — one by Steuben street, which is on a level with the depot, the other by Maiden lane, which has a stone stairway maintained and kept by the defendant—took the stone stairway to Maiden lane and while passing such stairway slipped and fell injuring himself, for which injury he brought an action against the rariload. - At close of plaintiff’s case, and also when the testimony was complete, defendant moved to nonsuit plaintiff on the grounds that negligence of defendants in removing snow and ice from the steps had not been shown, and that the absence of contributory negligence by plaintiff did not affirmatively appear, but, on the contrary, the undisputed evidence showed that he was guilty of contributory negligence. The motion was denied and both questions were submitted to the jury as questions of fact to be determined by them upon a motion for a new trial.</p> <p>Held, first. That while the defendant showed by its employes that it had been diligent in removing all snow and ice, yet on the other hand, there was evidence on the part of the plaintiff that the snow and ice had been upon the steps for several days. What was the truth in that particular was a question of fact; and whether or not, if the jury believed the witnesses of the plaintiff rather than those of the defendant, the defendant has been guilty of negligence in failing to remove such snow and ice was also a question of fact. These were proper questions to be submitted to the jury.</p> <p>Second. When a person who is walking on a dangerous and slippery place, persists in doing so without using, as he might readily and easily do, the safeguards there placed for his protection and support; (t. e.) when, as in this case, the person injured knew he was walking upon slippery steps upon which he was liable to fall, and knowing that he could protect himself by grasping a rail placed there for that purpose, yet proceeds with full knowledge of his peril and of his neglect of a means of safety; these conceded facts demonstrate that the person injured was clearly guilty of contributory negligen ce and should have been nonsuited.</p>

<p>Motion for a mandamus.</p>

<p>Defense— Counter-claim—Answer—Reply—Distinction between defense and counter-claim — When reply to answer not allowed.</p> <p>As a distinction exists between a defense and a counter-claim, when the defense is intended as a counter-claim it should be explicitly stated in the answer, so as to advise the opposite party, and in the absence of such an allegation, especially when the party defines and characterizes his answer as a defense, and it is uncertain whether a counter-claim is intended, such party is not in a position to insist that he has actually set up a counter claim, and the answer should be construed and considered a defense.</p> <p>A counter-claim must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff if the plainoit nad not sued the defendant.</p> <p>A plaintiff is not entitled to serve a reply set up in the answer where it is apparent that the whole object and scope of the defense to which it is sought to reply is to showithat some party other than the plaintiff should have brought the action. The remedy, in such case,would seem to be a motion to strike out.</p>

<p>Assignment — What passes by general assignment—Stock exchange — Pledgor and, pledgee—When relation exists between stock-broker and customer— Trust funds do not pass to an assignee — Buies for tracing them.</p> <p>Stock purchased on margin by a stock-broker for a customer, becomes the property of the customer, as between them the relation of pledgor and pledgee is created and exists, and upon payment of the amount due the customer becomes entitled to the possession of the stock.</p> <p>Nothing passes by a general assignment except the interest of the assignor, and if any of the assigned property is freighted with equities the assignee must recognize the same.</p> <p>Trust funds do not pass to an assignee of an insolvent, and they may be followed into the hands of such assignee for the benefit of the cestui que trust.</p> <p>Funds wrongfully appropriated may be followed into any property the wrong-doer may have invested them.</p> <p>Rules stated for tracing trust funds.</p> <p>If the fund in the hands of an assignee of an insolvent has been increased by reason of an appropriation by other parties having a lien upon both, of one of two classes of securities, the assignee is liable to the claimant whose property was appropriated to the extent of the increase. General creditors cannot get on an equality with those having superior claims through any action of a prior lienee.</p> <p>Under the rules of the New York Stock Exchange, when a member assigns, all securities held by other members of the exchange for indebtedness to them of the member failing, may be sold at once and without notice, and all members have a lien upon the seat in said exchange of any member indebted to them for the amount of the indebtedness.</p> <p>S., of Albany, N. Y., a stock-broker and a member of the New York Stock Exchange, assigned. His New York correspondents were H. B. & Co. He bought all stock and bonds for his customers through them. They held bonds belonging to the customers of S., and also stock bought on margin. H. B. & Co., knew no one in their transactions but S. H. B. & Co., immediately after the failure of S., sold the stock and bonds of the customers of S. and applied the proceeds on their claim against S., and the assignee afterwards selling the seat, paid H. B. & Co., the balance due them, retaining the remainder thereof.</p> <p>Held, that the owners of the stock and bonds so sold, had a claim superior to the general creditors of S., and were entitled to have their several interests allowed out of the moneys in the hands of the assignee, arising from the sale of the seat in said exchange.</p>

<p>Custody of minor children — Right of parents to dispose of—Laws of 1871, chapter 32—Injunction — Action will lie and injunction will he granted to prevent interference with the person to whom such custody has been given.</p> <p>By the Revised Statutes, as amended by chapter 32 of Laws of 1871, a father may by deed or last will duly executed, dispose o£ the custody and tuition of any child under the age of twenty-one years and unmarried during its minority.</p> <p>Where a father has by deed duly executed, disposed of the custody and tuition of a minor child, and the person to whom such disposition has-been made has accepted the same; an action will lie to enforce the rights of such person, and an injunction will be granted restraining the interference of not only the father, but of all persons acting under him and by his procurement, with the rights of such person to such custody and tuition under said deed.</p> <p>The injunction in such actions run not only against a party, but also against his attorneys, counselors, agents, &c.</p>

<p>Appeal from an interlocutory judgment overruling demurrer to plaintiff’s complaint.</p>

<p>Supplementary proceedings — Assignment for benefit of creditors — Examinations not limited — Code of Oivil Procedure, section 3460.</p> <p>In examinations in supplementary proceedings in the city court, where it appears that the judgment debtor has made a general assignment for the benefit of his creditors, the examination need not be limited to property acquired since the assignment.</p>

The complaint set forth three causes of action, one for á failure to make and file a report, as required by section 12 of the general manufacturing law, one for making a false report, within the meaning of section 15 of said law, and the other for entering into a fraudulent scheme to form a bogus corporation thereunder. The case was tried before the court without a jury, and while under advisement the plaintiff died.

<p>Assessments — Sow the value of railroad, or canal property is to be determined.</p> <p>Although in determining the value of railroad or canal property, for the purposes of taxation, the cost of creating it may be considered, yet it» earning capacity should be the more controlling consideration or test.</p>

<p>Bemoval of causes to United States courts — Cause for removal — Stops to-be tabeen.</p> <p>Where the petition for removal of a cause from the state court to the United States court is made by a plaintiff who claims that he is a resident of New Jersey and that the defendant is a resident of New York, before or at the time of filing such petition, the petitioner must make and file in the state court an affidavit that he has reason to believe, and does believe, that from prejudice or local influence, he will not be able to obtain justice in such state court.</p> <p>Where a petitioner fails to comply with this requirement he cannot accomplish the removal of the action.</p> <p>Where the petition and bond have been “accepted, allowed and approved” by a justice of the state court, such acceptance, allowance and approval imply that said justice was satisfied, and decided that the amount in dispute- did exceed the sum of $500; and if such decision can be reviewed at all in the state court, the application, if made to a judge other than the one who made .such decision, must be on notice of motion to set aside such acceptance, 'allowance and approval as having been improvidently made.</p>

<p> Sheriff—Bond of indemnity—liability of the sureties thereon. </p> <p>In an action upon a bond of indemnity to the sheriff, it was error to refuse to charge the jury that if neither the sheriff nor any of his deputies judged the property taken under the execution in reference to which the indemnity applied was owned by the judgment debtor, then the defendant was entitled to a verdict.</p>

<p>Ejectment — Lease—Indian reservation— Who entitled to renewal of lease under oat of congress— Evidence,</p> <p>By the act of congress, approved February 15, 1875, it was provided that the then existing Indian leases should be valid and binding for the term of five years thereafter, unless by the terms thereof they expired before that time. The same act gave the holder of such leases the right to a renewal thereof in case he was the owner of “ improvements erected upon ” the land leased.</p> <p>George Jemison, a Seneca Indian, residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years, and on the 16th day of June, 1875, the same Jemison executed and delivered to the defendant Johns a lease of the land in question, and the defendant Netz is his tenant, and in possession. Under the act of congress the defendant Johns made application to the council of the Seneca nation on the 35th December, 1879, for-renewal of his lease which was granted and lease made of that date, and on 20th day of January, 1880, the plaintiff made a like application for renewal of her lease, which was granted by the councilors, and lease made of date of May 8, 1880, which included the land in lease to defendant. In action of ejectment by plaintiff, to recover the land held by defendant:</p> <p>Held, first, that plaintiff had made improvements on the land covered by her lease, and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal of her lease.</p> <p>Second. That the leases to the plaintiff and defendant Johns were in the strict legal sense invalid prior to the act of congress of 1875, and that they had no legal rights in respect to the leased premises, except that afforded by possession, but that act confirmed and made leases then outstanding valid, and established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that view the plaintiff became the lessee of the entire premises covered by her lease by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the land embraced in it.</p> <p>Third. That the plaintiff was entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant Johns had in fact no existing lease, and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to" him in such sense that he might be treated as in possession as her lessee, or assignee.</p> <p>Fourth. That the provision in the act of congress for renewal of leases to persons who own improvements, has reference to those only who at the time the application is made, lawfully claim under a lease, or under some one who has taken a lease which is then valid, and does not include one who has unlawfully as against such leaseholder (entitled to renewal), entered and made improvements upon some portion of the premises.</p> <p>Fifth. That it is conclusively established hy adjudication that the defendant Johns derived no right to possession of the premises from the plaintiff, and he had no position which enabled or permitted him as against the plaintiff to apply for or take the renewal lease under which he claims, but the right was exclusively in the plaintiff to have a renewal lease covering the entire premises embraced within that first taken by her.</p> <p>Sixth. That as it was the custom, and had been for years, of the council of the Seneca nation to assemble for the transaction of its business, and the action of the council when so assembled was governed by rules and by-laws, and a formal record of the proceedings was kept in a book by the clerk, a copy of such record certified by him is competent evidence-</p>

<p>Election law—Begistration of voters — Duties of board of registration—R[o right to refuse to register all duly qualified voters who may have made application far registration within the time prescribed by law.</p> <p>Under the act relating to the registration of voters in the city and county of New York, it is the duty of the inspectors to register every duly qualified voter who presents himself within the place of registration before the hour of nine o’clock in the evening and demands to be sworn, and the true construction of the statute is that the place of registration shall be closed at that hour, but not that the inspectors shall refuse after that hour to register those who have applied within the time prescribed by law.</p>

<p>Complaint—Demurrer—Code Civil of Procedure, section 484 — Slander of title — What must be alleged to maintain — Jurisdiction—Courts of this state no jurisdiction for trespass to lands without the state—Trespass and slander of title cannot be joined.</p> <p>The courts of this state have no jurisdiction for trespass to lands without the state.</p> <p>To maintain slander of title, it must be alleged to have been malicious.</p> <p>It is no slander to allege ownership and that plaintiff has no title.</p> <p>Under section 484 of the Code of Civil Procedure, trespass and slander oí title cannot be joined in the same complaint.</p>

<p>Certiorari to review, assessments.</p>

Motion by the relator for a mandamus commanding the respondent to audit and allow a bill for printing and publishing in his newspaper the terms of courts in the third judicial district, pursuant to an order of this court.

<p>Trial by the court without a jury.</p>

This action is instituted for the purpose of obtaining a judicial construction of the said will, and for direction to the plaintiff as such executor in regard to its execution.

A paper intended for a last will and testament was prepared and came into the hands of the deceased some time in 1882. There are several blank spaces in the body of it sufficiently large to permit the writing of disposing clauses without interlineations, and a space at the end of the paper for the signature. Spaces were also left for the day, month and year, which remained unfilled.

<p>Code of Civil Procedure, section 390—Statute of limitations of a foreign state— When a defense to action brought here — New promise to pay “when able ” —■ Burden on plaintiff to prove ability to pay.</p> <p>Before the adoption of the Code of Civil Procedure, the statute of limitations of a foreign state constituted no defense to an action brought here, but section 390 of the Code of Civil Procedure has changed the rule to some extent.</p> <p>In this case the cause of action does not come within the exceptions of section 390, for the reasons: First. The cause of action did not originally accrue in favor of a resident of this state, but in favor of a resident of the state of Ohio. Second. Because before the expiration of the period of limitation the person in whose favor the cause of action originally accrued did not become a resident of the state of New York as he lived and died in Ohio; and because, Third. The cause of action was not assigned before the expiration of the time so limited to a resident of this state.</p> <p>Where it is sought to revive a debt barred by the statute of limitations-by a new promise to pay “when able ” the burden is on the plaintiff to prove ability to pay. Failure to establish the conditions upon which the new promise was made is a failure to revive a debt barred by the statute of limitations.</p>

<p>Motion by defendant for retaxation of costs.</p>

<p>Power — When provision for wife should be held to be in lieu of dower— Partition.</p> <p>Where a testator devised one-third of his real property to his widow for life with remainder to his sons, also devising the other two-thirds to the sons:</p> <p>Held, that there was thus a total disposition of his realty, and any allowance of dower to the widow in addition to the devise would overturn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In such case the court infers an intention of the testator that the provision for the wife should he in lieu of dower.</p> <p>That the testator has left his widow a life estate in one-third of the premises does not prevent the owners in fee of the two-thirds from partitioning the property and realizing their shares. The rights of the tenant for life may be protected by provision in the decree.</p>

<p>Will— Oonstruclion of—Dower — When provisions of will must be rega/rdeS as intended in lieu of dower.</p> <p>Where there is no direct expression of intention that the provision contained in the will shall be in lieu of dower, the question always is whether the will contains 'any provision inconsistent with the assertion of a right to command a third of the land to be set out by metes and bounds for dower. The intention of the testator need not be declared in express words, it may be implied if the claim of dower would he plainly inconsistent with the will.</p> <p>Where the will gave all the testator’s real and personal estate to plaintiff (widow) as executrix and John M. Corliss and William Carley as executors in trust for uses and purposes therein stated, among which are the following: “ Mrst. To receive and collect the income thereof, and to pay the same for my debts, and the incumbrances upon my estate, after the payment of such sums as may be necessary for the support and education of my family and children, in which matters I desire my executrix and executors to be liberal. • fieeond. To purchase in their own names as such executrix and executors a homestead for my wife and family if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they remain unmarried. ” The testator in his lifetime purchased the homestead and owned it at the time of his death:</p> <p>Held, that the intention of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each child. The devise must contemplate a homestead discharged of dower, otherwise the object of the testator as expressed might be defeated by assumption of dower right, and possible sale of the homestead under such claim.</p> <p>The testator directed that in case of the remarriage of his wife all of his estate shall be divided equally among his four children, and be paid to ■ them respectively as they arrive at full age:</p> <p>Held, that if one-third of the real estate were to be set apart to the widow as dower, a division of all of the estate among such children could not i take place until the widow’s death notwithstanding a remarriage by her. Thus a provision of the will would be defeated.</p>

<p>Married women — Separate personal effects—When may be detained by virtue of innkeeper’s lien — Evidence.</p> <p>Where husband and wife board at a hotel the husband is presumptively liable for the bill, but it is competent for the hotel-keeper to show that the husband was impecunious, and that credit was given to the wife so as to justify the detention of her property by virtue of the hotel-keeper’s lien.</p>

<p>Arrest—Sufficiency of proof to support order of— Gode of Oiml Procedure, section 550.</p> <p>Proof that one of two partners withdrew a large amount of money from the business of the firm for the reason that it had suffered severe losses, and that the other partner had already transferred a large portion of his property to his wife without consideration, will not support an order of arrest against the partner who withdrew the money, without further proof that he had either disposed of any part of this sum or intended to do so to defraud his creditors.</p>

<p>Removal of assignee—What is proper notice in proceedings for removal, where there are three assignors — Practice.</p> <p>In a proceeding for removal of an assignee who has misconducted himself, where there are three assignors, one of whom has left the state, notice to one assignor is properly notice to all; though the better course would be to give the statutory five days' notice to the two within the state, in the ordinary way and to serve the absent assignor by depositing a notice in the post-office, addressed to him at his last known place of residence giving double the time.</p>

<p>Demurrer to complaint for divorce on the ground of adultery.</p>

<p> Deed—Conveyance—Reservation—One who parts absolutely with the title to land to another cannot reserve to himself the right to its purchase-money when subsequently sold. </p> <p>He who conveys the absolute fee of real estate to another cannot retain the right to the purchase-price when subsequently sold. There is a distinction between the occupancy of one’s property which must be temporary, unless the title of the owner is acquired, and one which is ■known to be permanent because the right to maintain it exists; and he who parts absolutely with the title to land to another cannot reserve to himself the right to its purchase-money where subse quently sold, because such a reservation would be inconsistent with the grant.</p> <p>The defendant who was the owner in fee of a farm of land through which a railroad passed, and also of that part thereof which such railroad occupied and upon which it was constructed, which ownership was derived by and through a warranty deed to him from the assignor of the plaintiff, recovered from such railroad or its receiver the sum of $1,000 as a compensation for the fee of the land which the road occupied, and for the depreciation in value of the entire farm by reason of such title being acquired to the strip occupied by the railroad:</p> <p>Held, that the defendant’s right to such damages was perfect through the deed from the plaintiff’s assignor, which the reservation therein contained in favor of the grantor did not and could not reserve to such grantor, because such a reservation would be inconsistent with and repugnant to the deed and the estate in fee which it conveyed to the defendant; and as the defendant recovered such damages for himself and not for the plaintiff, the latter cannot maintain this action which rests upon the theory that the moneys paid to the defendant therefor were received to and for the use of the plaintiff.</p>