Volume 20 — Abbott's New Cases

Motion to strike out demurrer as frivolous and for judgment. After service of a demurrer to the complaint, and prior to the hearing of plaintiff’s motion to strike it out as frivolous, defendant served an answer as an amended pleading, within six days after service of the demurrer.

Trial of demurrer. A demurrer to the complaint having been noticed for argument by the plaintiff and brought on for hearing, it appeared, after service of the notice of argument, that within six days after service of the demurrer, the defendant had served an answer as an amended pleading.

<p>Motion, for judgment on demurrer as frivolous.</p> <p>S. A.c&jD.T. Noyes, for the plaintiff, and the motion cited Smith v. Laird, 44 Nun, 580.</p>

Motion by defendants to set aside judgment entered by default on the ground of irregularity, “in that the time to serve the complaint expired without the same having been served, or an order or stipulation made extending the time to serve the complaint,” and if said motion be denied, then for an order opening the default on terms. The action was commenced by personal service of the summons on April 27, 1887.

After the lapse of five years from the plaintiff’s recovery of judgment against the defendant, without execution meanwhile, plaintiff moved for leave to issue execution for the amount due.† The notice of motion, with the affidavit on which it was founded, were served after the hour of noon on Saturday, May 21, 1887. Defendant appeared by attorney, and objected that service after 12 m. on Saturday was not, under the half-holiday act (Z. 1887, c. 289), good service.

Demurrer to the complaint for insufficiency. The complaint alleged that the defendant had negligently allowed a conductor pipe on a house owned and managed by him to become and remain out of repair, so that the water, gathered therein, was poured upon the sidewalk, both from the spout and leaks in that part of the pipe which was attached to the house; that in February, 1885, the water, so poured upon the walk, became frozen and rendered the highway uneven and dangerous; that…

The annual election, at which a state senator was to he ■ elected for the seventeenth senatorial district, consisting of the county of Albany, was held on November 8, .188?, The three inspectors of election, of and for the eleventh election district, on the evening of the election made two returns of the result of the election, by which it appeared that Norton Chase, the Democratic candidate, received, in that district, 186 votes for senator, and that Henry Russell, the…

Trial by the court. This action was brought upon an undertaking given on appeal from a judgment, to stay proceedings on the judgment pending the appeal. The defense was that, pending the appeal, and prior to the affirmance, the respondent had disregarded the stay and issued execution. At the trial, defendant offered in evidence an execution on the judgment returned unsatisfied.

The Sodus Bay & Southern Railroad Company and the Northern Central Railway Company joined as relators in a petition for a writ of certiorari under L. 1880, c. 269, addressed to the assessors of the town of Sodus, to review an assessment made by them on the railroad owned by the former company and occupied by the latter under an arrangement by which the latter agreed to pay all taxes.

Motion by a junior attaching creditor to vacate an attachment, &c., upon the ground that the summons was not served within twenty days after granting the warrant, as required by Code Civ. Pro. § 638. The facts appear in the opinion.

<p>Motion by defendants (after demand made) to compel the sheriff to tax his fees.</p> <p>The facts appear in the opinion.</p>

Trial before referee. This action, was brought by John Hunt Adams against Harlan P. Smith and others to partition the real estate of which Sidney Smith, a lunatic, died seized. Jonathan Hunt died in 1847, leaving a large amount of real estate situated in the city of New York, subject to mortgages.

Trial of demurrer. This action was brought by S. Slriddy Cochran and another, judgment creditors of the American Opera Conn pany,… Held: and have since continued to, and now severally hold, shares of said stock of the par value of one hundred dollars each, as follows, to wit: [naming them], r. “ That the plaintiffs are not advised of the precise number of shares of stock held and owned by said several defendants last above named, and for that reason the plaintiffs are…

Mandamus. On December 15, 1885, an alternative writ of mandamus was issued out of this court on the relation of.

Investigation ordered pursuant to L. 1879, c. 307, upon the application of Samuel Wills and thirty-six other freeholders of the village of East Syracuse. The material facts appear in the opinion.

<p>Writ of error to the circuit court of the United States for the district of Nebraska.</p> <p>This is an action of ejectment to recover a parcel of land in the city of Lincoln, State of Nebraska. The plaintiff below, the defendant in error here, traces title to the premises from a purchaser at a sale under an execution issued upon a judgment, extended by the clerk of the court so as to include certain sureties, and among them the defendant below. The contention of the defendant is, that the extension of the judgment so as to include him was unauthorized and void, and that the execution and sale thereunder of his property was, therefore, without any force or validity.</p> <p>The facts of the case, so far as it is necessary to state them for the disposition of the contention of the defendant below, are briefly these: On November 12, 1875, Charles W. Seymour and William Wardell, as plaintiffs, recovered a judgment in the circuit court of the United States for the district of Nebraska, against one William P. Young, as defendant, for $6,500 and costs. The defendant in that case, Young, being desirous of staying execution upon this judgment, obtained a bond, as the undertaking is termed, signed by five parties, of whom Lamaster, the plaintiff in error, was one, in which, after reciting the judgment recovered, they acknowledged themselves “ security for the defendant for the payment of the judgment, interest and costs, from the time of rendering said judgment, until paid, to be paid nine months from the rendering the same.” Attached to this instrument was an affidavit of justification of all the parties signing it except Lamaster. Originally, his name was signed to the affidavit, but he had it cut off before the instrument was presented to the clerk. It is unnecessary to state the circumstances under which this was done or the effect of it (if any it had) upon his liability, as the case will be determined on other points.</p> <p>The bond, so called, was approved, by the clerk of the court, on December 2, 1875, and filed; and thereupon he made in one of the books of record of the court, called “ Judgment Index of the Court,"’ the following entry: “ Defendants, Lamaster, M. F., et al., surety; Plaintiffs, Seymour and Wardell, appearance. Docket 6, No. 138 ; date of judgment, Nov. 12th, 1875 ; amount of judgment, $6,500.” ..</p> <p>This entry was made by the clerk under the impression that the statute of Nebraska of February 23,-1875, entitled “An act to. provide for stay of executions and orders of sale,” was -the law governing the stay of executions upon judgments in the circuit court of the United States. The third section of the statute provides for a stay of execution for a period of nine months, upon judgments for the recovery of money only (with certain exceptions not material in this case),, on condition that the defendant shall,- “ within twenty .days from the rendition of judgment, procure two or more sufficient freehold sureties to enter into ■ a bond, acknowledging themselves security for the defendant for the payment of the judgment, interest, and costs from the time, of rendering judgment until paid.” -</p> <p>The other sections which bear upon the questions involved are the. following:</p> <p>Sec.- 4. “ Officers approving stay bonds shall require the affidavits.of the signers .of. such bonds, that they own real estate not exempt from execution and aside from incumbrances, to the. value of twice the amount of the,judgment. V . ‘</p> <p>Sec. 6.,“ The sureties for the stay of execution may be taken and approved by the clerk,, and-the bond shall.be recorded in a book kept for that purpose, and have the force and effect, of-a judgment confessed from the date thereof against, the.--.property of, the .sureties, .and. the clerk- shah enter and index the same in the proper judgment docket as in the case of other judgments. ”</p> <p>Sec. 9. “ At the expiration of the stay, the clerk shall issue a joint execution against the property of all the judgment debtors and sureties, describing them as debtors or sureties therein. ” (See Laws of Nebraska of 1875, p. 49.)</p> <p>Upon the assumed sufficiency of the bond of the sureties, and of the above entry in the Judgment Index under the statute of Nebraska, the' clerk, on April 14, 1881, issued an alias execution to the marshal of the district, commanding him as follows:</p> <p>“ That of the goods and chattels, and for want thereof, then of the lands and tenements of William P. Young, debtor, and John I. Irwin, Jane Y. Irwin, W. T. Donavan, Milton F. Lamaster, and Nathan F. Moffit, sureties, in your district, you cause to be made the sum of four thousand seven hundred forty-four and dollars, being the balance due April 2d, A. D. 1881, on the judgment of the circuit court of the United States for the district of Nebraska, at the November term thereof, in the year 1875, by which Charles W. Seymour, and William W. Wardell, recovered against the said William P. Young, with interest thereon from the second day of April, A. D. 1881, until paid, together with the further sum of-, costs of in-</p> <p>crease on said judgment, and also the costs that may accrue on this writ. , And have you the said moneys before the clerk of the said circuit- court, at the city of Omaha, in said district, within sixty days, to be paid to the persons entitled to receive the same. ”</p> <p>Under this execution, the premises in controversy, being a lot in the city of Lincoln,' were, on May 17, 1881, sold to one Thomas Ewing for the sum of $5,600. A motion to set aside the sale having been denied, and the sale confirmed, the marshal’s deed of the premises was made to the purchaser, and he eonVeyed them to the plaintiff.</p> <p>The petition,—the designation given to the first pleading, in. the system of procedure in civil cases in force in Hebraska,—sets forth the title of the plaintiff under the execution and sale mentioned, the detention of the premises by the defendant, and the receipt by him of the rents and profits to the amount of $3,000, and prays judgment for the possession of the premises and for the rents and profits. The defendant pleaded that the conveyance from Ewing, the purchaser at the execution sale, to the plaintiff, was colorable and collusive, for the purpose of enabling the latter to commence and maintain an action for the recovery of the property in the circuit court of the.TJp.ited States. And in answer the petition the defendant denied the validity of the bond, the extension of the judgment against him, and the proceedings thereunder, and also set up the pendency in the State court of a suit for the determination of his title to the premises.</p> <p>Two trials of the case were had, which is permissible in ■ actions of ejectment under the laws of Hebraska. On the first, the verdict of the jury was for the defendant, on the second, they found that the conveyance by the purchaser at the marshal’s sale to Ewing, the plaintiff herein, was “merely colorable and collusive, and was made for the purpose of creating a case cognizable in the Federal court, and the plaintiff was not the real party in interest, but that the action was being prosecuted for the use and benefit of Ewing, and Jhat Keeler is only a nominal and colorable party. ”</p> <p>This verdict being set aside by the court, a third trial was had, which resulted in a general verdict for the plaintiff, under the instructions of the court. The question raised on the trial and decided by the court, upon the instruction refused and those given, related to the validity of the proceedings taken by the clerk upon the bond of the sureties, to authorize execution against their property, and the sale of the premises.</p> <p>The defendant requested the court to instruct the jury that the statute of Hebraska respecting the stay of executions and orders of sale, approved February 23, 1875, “ was not operative to authorize the execution against Lamaster’s propertybut the court refused the instruction and charged the jury as follows: “ That the filing of defendant’s bond with the clerk of the court, and its approval by him, and his approval of the sureties thereto, including the defendant, the record of the same, the entry of memoranda thereof in the judgment index, called in the statute ‘ extending the judgment,’ justified the issue by the clerk of the court of an execution upon the judgment of Seymour and Wardell against Young and others, directed to the marshal, commanding him to make the balance due upon the judgment out of the property of the principal and sureties, including that of the defendant Lamaster, and the sale by the marshal of the defendant’s property under and by virtue of the execution, was authorized by law.” And again, “that when the bond was taken by the clerk, as shown in evidence, and when the proceedings were taken thereon leading to the sale by the marshal'of the property in question, the statute of this State,, passed on the 23d of February, 1875, and entitled 1 An act to provide for stay of executions and orders of sale,’ was in force in the court, and was a law therein, the same as in the district courts of the State.”</p> <p>And the court further instructed the jury to find a general verdict for the plaintiff.</p> <p>To the refusal of the court to give the instruction requested, and to the instructions given, the defendant at the time excepted.</p> <p>The jury found a verdict for the plaintiff; and to review the judgment entered thereon the defendant has brought the case here on a writ of error.</p> <p>On December 30,1876, and not before, the circuit court of the United States for the district of Nebraska made the following order:</p> <p>“ Ordered, that the laws of the State of Nebraska, now in force, regulating the issuing of executions and of the proceedings' to be had thereon and thereunder, be, and the same are hereby, adopted as the rule of procedure to enforce the collection of judgments in the. United States' circuit and district court for said State.”</p>

Appeal by the plaintiff from a judgment recovered on trial at the special term. The First National Bank of Portchester brought this action, as a judgment creditor of the firm of Halsted, Haines & Co., against the members of the firm and their assignee for benefit of creditors, to set aside an assignment, made by the firm as individuals and as copartners, as fraudulent against the firm’s creditors. The material facts appear in the opinion.

This proceeding was instituted under Code Civ. Pro. § 2325, for the appointment of a committee of the person and property of the appellant as an habitual drunkard, i'ection 2325 of the Code provides that “the petition must be in writing and verified by affidavit of the petitioner or his attorney to the effect that the matters of fact therein stated are true.

Salome F. Howell, having been appointed administratrix with will annexed, upon the estate of Margaretta Grove, deceased, the administratrix, after taking the oath, of office and signing the required bond, produced her husband as one of the proposed sureties thereon, but the administration clerk refused to accept him as a surety, solely upon the objection that he was the husband of the administratrix.

Motion to punish defendant for contempt for refusing to deliver property on demand to a receiver of a partnership appointed in an action by the executors of a deceased partner against the surviving partner for an accounting, etc. Further facts appear in the opinion.

Application by defendants for an order to take the affidavit of one the relators, Edward H. Harriman, for use upon a motion for a peremptory mandamus to compel the defendants to exhibit to the relators the transfer-book of the Dubuque & Sioux Oity Railroad Company and a list of the stockholders thereof.

In the action, brought to recover chattels, judgment was entered October 27, 1886. So execution against defendant’s person had been issued before this motion, but proceedings supplementary to execution were taken in May, 1887, and were still pending, the defendant having been examined, and the proceedings having been adjourned from time to time for the examination of witnesses.

This action was brought by John F. Carr against John 0. Risher, to recover the amount of twelve bonds for $1,000 each, dated September 28, 1865, and payable on October 1, 1868, issued by a mining company organized under the act of 1848, c. 40, and which were alleged to have been duly transferred and delivered to the plaintiff for value before maturity.

Trial by the court and jury. Frederick N. Adams brought this action against the N. Y., Lake Erie & W. R. R. Co., and George W. Carhart and Clarence A. Blanchard, to recover compensation for taking stenographic minutes and for making and furnishing copies thereof to the parties upon teal before a referee, of an action between the corporation and the individual defendants herein.

I. November, 1887. Motion to vacate return of execution, and to compel a true return, and entry of satisfaction of judgment. In an action brought by John W. Wilson and another against Ernest L. Dawson, individually and as surviving partner of the J. M. Dawson Packing Company, a nonresident partnership, an attachment was issued on the ground of the defendant’s non-residence. By virtue of this attachment, the sheriff of the city and county of.

Application by John McDonald, a stockholder of the-U. S. Mercantile Deporting Co., a corporation organizedi trader the Manufacturing Act of 1848' (c. 40), for a peremptory writ of mandamus to the corporation to require it to permit an inspection on behalf of the relator of the transfer book of stockholders of the company. The application was based on section 25 of the Act of 1848, which provided (same statute, 2 li.

Motion by Edward H. Harriman and another for a peremptory mandamus to be directed to John E. Patón and others, composing the firm of John E. Patón & Co., and the Metropolitan Trust Company of Hew York City, to require them to exhibit to the relators or either of them the transfer book of the Dubuque & Sioux City Railroad Company, and a list of the stockholders thereof. The application was made under L. 1842 (c. 165), 2 E. S. 7 ed. 1536, which provides : 1.

Motion to vacate an order. Joseph Brooke sued Chester M. and Charles E. Foster, and obtained an attachment against defendant’s property, as a provisional remedy under Code Gw. Pro. § 635, etc. Under the attachment the sheriff took possession of the property of the defendants, consisting of a large stock in trade, and of their books and papers.

Petition for discovery and inspection. This action was brought to recover the alleged value of certain stocks and bonds, which, the complaint sets forth, were owned by the plaintiff, and were deposited with the defendant by them, under an agreement that they should1 be delivered to one, T: 0.

Appeal by the plaintiff from an order of the General Term of the supreme court of the First Departments, reversing an order of the Special Term which denied the defendants motion to vacate an attachment. The material facts are fully stated in the opinion.

Plaintiff sued for damages for personal injuries. The complaint alleged that on March 24th, 1885, the sidewalk upon Division street, near the Terwilliger block, in the village of Amsterdam, was in an unsafe condition; that there existed therein an abrupt break or descent of from ten , to fifteen inches, and a very steep decline or grade, which the village had notice of, but negligently suffered to exist; that the plaintiff, without fault upon her part, stepped off and down…

Plaintiff sued for damages for injuries suffered by him while in the defendants’employment as locomotive engineer.

<p>Pleading negligence.] An allegation that defendants’ servant, driving their horse-car at a time and place specified, so negligently and carelessly managed his team, that the horse knocked her down and injured her leg, is sufficiently definite and certain. To state more information would be to plead evidence.*</p>

Motion to require an administrator to give security for costs. Plaintiff brought this action in the City Court of New York, against the Bowery Savings Bank. The hank oa application setting forth that Abraham B. Valentine as administrator of the last will and testament of Abraham Valentine, deceased, claimed the same fund, obtained an order allowing it to be paid into court, and the bank to be discharged.* Plaintiff asked now, that the new defendant give security for costs.

<p>1. Jurisdiction of N. Y City district courts.] Since undertakings' have been substituted by the law, in place of bonds, in bastardy proceedings and abandonment, cases, the statute (L. 1862, c. 3SU, § 1), which gave the district courts of the City of New York jurisdiction of actions by overseers of the poor or commissioners of public charities and correction, in the name of the people upon such bonds, is to be interpreted as extending to actions upon such undertakings.</p> <p>Undertaking when, synonymous with, bond]. An undertaking being merely a simplified bond without seal, the equity of the statute giving a remedy upon the bonds, is applicable to undertakings.*</p> <p>Jurisdiction of district courts]. Nor is the jurisdiction impaired by the fact that under Code Grim. Pro. § 882, an action on such an undertaking is to be brought in the name of the city, and not in the name of the people.</p> <p>Action on bastardy undertaking; impeaching jurisdiction]. Under Code Grim. Pro. § 848, which requires two magistrates together to conduct proceedings in bastardy, an order made by one acting alone, although also signed by another, is void.</p> <p>.’Evidence to impeach undertaking.] In an action on such an undertaking, it is error to exclude evidence that the order in pursuance of which it was given was void, for want of jurisdiction, by reason of the absence of one of the magistrates who should have taken part in the proceedings.</p>

Trial of issues. Marcella F. Crook and another administrator of Samuel 32. Crook, Jr., deceased, brought this action against Samuel 12. Crook, the father of the deceased, and J. S. Barclay, the lessor of the premises occupied by the deceased, to obtain for the estate administered by the plaintiff the benefit of a renewal of the lease. It appeared that the original lease had been made by the defendant, J. S. Barclay, to the defendant, Samuel II.

Appeal by the defendant from a judgment for the plaintiff after trial at circuit, and from an. order denying a new trial, Elmer Murphy sued George H. Kron and one Bletzcr, for assault and battery and false imprisonment under the following circumstances. The defendants were police officers of the city of Roehester.

<p>1. Evidence.] It requires very clear proof to hold that an officer has falsely certified that the execution of a deed has been acknowledged before him.†</p> <p>% Married woman; power tocontract.] Since L. 1884, p. 405, c. 881,—■ providing in effect that married women may contract as if single; except that the act is not to apply to any contract made between husband and wife,—a married woman has power to convey her separate estate to a third person in consideration of his becoming a surety for her husband.</p> <p>3.. Consideration; bona fide purchaser.] One who takes a conveyance in consideration of his becoming surety for a third person, other than the grantor,—who in this case was a married woman,— Is not to be deemed a bona fide purchaser, if the undertaking of suretyship appears, by the date of its signature and authentication, by oath, to have been entered into several days before execution of the deed as shown by the date of- the deed and the date of the acknowledgment.</p>

Plaintiff brought this action on a bond and mortgage, which purported to be executed by the defendants to one Brennan, and by Brennan had been assigned to the plaintiff; and the defense was that the defendants, who were husband and wife, and illiterate, had. been induced to execute it by Brennan’s representing to them that it was a deed which would transfer the title from the husband to the wife ; they now ask to have the bond and mortgage cancelled.

Plaintiff brought this action to recover back purchase money she had paid defendants on an executory contract for the purchase of real property. The contract was for the sale of a lot and premises known as No. 714 Madison avenue, and situated in the city of New York.

<p>1. Assignment for benefit of creditors; insanity of partner.] The insanity of a partner, without inquisition had, does not dissolve the partnership, nor alone empower the other partner to make an effectual assignment of the firm assets for the benefit of creditors. So held in case of acute mania of but few w'ceks duration.*</p> <p>§. Fraudulent conveyance; intent.] Where an assignment for benefit of firm creditors was shown to be fraudulent by evidence that the assignor, conscious of his firm’s insolvency, transferred firm assets to an individual creditor for his individual debt, just before assigning, and selected that creditor as assignee of the firm assets,—Held, that a subsequent attempt at restoration of the proceeds of the property thus divested did not avail to sustain the assignment.</p>

John We cl mark, was arrested by the police and sent to the Lunatic Asylum at Ward’s Island, on the summary commitment of a magistrate made pursuant to the act of 1874 (c. 446, § 1). At the time of Wedraark’s arrest the police took from his person $485, and passed it over to tho defendant as property clerk of the police department (2V. Y. Consolidation Act of 1882, § § 288-293).

<p>1. Evidence; Inquisition in lunacy.] Notwithstanding the change intro- ■, duced hy Code Civ. Pro., § 2335,—restricting the inquiry under an inquisition in lunacy to competency at the time of the inquiry,— an inquisition finding that the subject had been a lunatic for two years preceding the time of inquiry, is not incompetent as presumptive evidence even against third persons in a subsequent action.</p> <p>2. The same; instructions to jury] The submission of such an inquisition to the jury in a subsequent action, with the instruction that it is not conclusive,—is not error or ground for a new trial in the absence of any request for other instructions, or objection, or exception, to the manner of submitting the inquisition to the jury.</p>

<p>a. Stay of proceedings.] A stay of proceedings coupled with an extension of time to answer, precludes plaintiff from moving to vacate the extension pending the stay.</p> <p>;2. Security for costs and extension of time; affidavit of merits.] It seems that an affidavit of merits on the part of a defendant is not requisite to the sustaining of either a stay of plaintiff's proceedings ■until he should give security for costs, or an extension of time to •answer, meanwhile.</p>

<p>1. Stay of proceedings by non-payment of costs.] A party whose proceedings are stayed by his own non-payment of costs is not thereby prevented from serving a purely defensive pleading; as in this case, an answer not containing a counter claim:</p> <p>2. The same; effect of the statute.] The provision of Code Civ. Pro., § 770, that, until payment of motion costs a party is stayed in his proceedings, was not intended to ¡«'event a party moved against from asserting his natural and legal right of self-defense.</p> <p>3. The case of Lyons v. Murat, 54 How. Pr. 23, limited.</p>

Demurrer to complaint. Jingo S. Mack, as assignee for the benefit of .creditors, sued Win. F. Kitsell for the price of goods sold and delivered by the assignors.

1 The defendant, Amedeo Vitan, was arrested upon a warrant granted by one of the police justices of this city upon the complaint of the relator, Julie Vitan, in which she charged the defendant, her husband, with having1 abandoned her in the city of New York, without adequate support.

<p>1. Party's liability upon attorney's employment of stenographer.] The attorney for a party to an action has implied authority to bind his client by the employment of a stenographer to take and write out the testimony of witnesses upon a reference of a special issue.*</p> <p>2. The same; limitation of attorney's authority.] The party’s instruction to his attorney not to employ a stenographer will not affect the latter’s right of action, where ho had no knowledge of such limitation of the attorney’s authority †</p> <p>3. The same; rules of court.] The attorney’s authority to employ a stenographer is not qualified by the fact that the rules of court contemplate that the testimony in sueh cases should be taken by the examiner before whom the reference is heard, and the depositions read over to, and signed by the several witnesses, where the parties stipulate that the testimony may be taken by a stenographer, and signed by the witnesses upon the stenographic notes.</p> <p>4. The same; order of court.] The stenographer’s right to recover is not affected by a direction in the order of reference that the testimony be taken at the expense of the opposite party, it seems, even though he knew of such direction.</p>

Appeal by the plaintiff from a -judgment entered upon the dismissal of the complaint at the trial. Richard W. Ryan sued Thomas B. Rand to recover §262.30 for services of the plaintiff as stenographer. The defendant was appointed a receiver of the Ross-more Hotel, in an action brought in the Supreme Court by Iluldah II. Clapp against Robert C. Clapp and others. The court afterwards ordered a reference to state the defendant’s accounts as receiver.

Appeal by the defendants from a° judgment entered upon a verdict, and from an order denying a new trial. Susan E. Corser brought this action against Horace Bus-sell and Theodore Houston, as receivers of the Hew York, West Shore and Buffalo Baihvay Company to recover damages for the loss of a trunk and contents which were alleged to have been delivered by her as a passenger upon the railway to the defendants, as receivers, for safe-keeping.

Appeal by the plaintiff from an order vacating his attachment in part. Jerome II. Kantrowitz sued Jacob Kulla and Abraham. I. Kantrowitz as copartners, and on July 27, 1887, obtained an attachment against their property. On August 3,. 1887, Abraham I. Kantrowitz served an offer to allow judgment to be taken against “ him ” in the action, for tlie; amount claimed, with interest and costs. On the following day the plaintiff accepted the offer and entered judgment thereon.

order denying a motion for a new trial. Catherine Jennings brought this action against Henry Tan Schaick for personal injuries sustained by falling into a coal-hole in the sidewalk in front of an apartment house in the city of New York, owned by the defendant. The accident, occurred during the delivery of coal to Dannat, a tenant of an apartment, the cover of the coal-hole having been unfastened and removed for that purpose by ¡Roberts, the janitor of the premises.

Clarence Cary and Charles W. Wells, sued the Western Union Telegraph Company for $5,000 upon an account for services upon its retainer between days named “ in advising and consulting with said defendant concerning certain proposed tax legislation of the Legislature of the State of Hew York, in advising and consulting with the attorney-general and the comptroller of the State of Hew York, on be- ‘ half of said defendant in respect to such legislation, and making formal…

<p>Demurrer to indictment.</p> <p>The facts sufficiently appear in the opinion.</p>

I. Februarxj, 1887. Appeal from an order vacating an order for the examination of Hermann Stnrsberg, and requiring him to produce certain books of the defendant for inspection.

Xatli aniel Whitman brought this action against the Adams Express Company, naming on the record William L. Hubbell as treasurer, to compel the company to remove a metal awning or shed, about eighty-five feet in length and extending from the hnilding to the curb line of one of the company’s offices, which, as alleged, hid from the view of pedestrians the signs on plaintiff’s building.

<p>1. Mandamus to public officer ; abatement of nuisance. ] It is no ground for denying the remedy of mandamus against a public officer to compel him, in the discharge of his official duty, to abate a nuisance in the public street, that there are thousands of such [ nuisances, which would require an army of employees and put the city to heavy expense to remove, and that the relator has a remedy against the individual maintaining the nuisance,—unless it appears that the respondent, by reason of the multitude of such applications, actually made, is without men or money to enforce the direction -of the court.*</p> <p>2. Case stated.] So held upon an application to compel the commissioner of public works of the city of New York, to remove meat racks erected upon the sidewalk by the occupants or in front of premises adjoining those of the relator.</p>

Mrs. Sarah A. Lynch applied for a writ of mandamus to he directed to the Manhattan Railway Company and John ■ Newton, commissioner of public works, to compel th.e latter to remove certain structures of the railway company.

In proceedings supplementary to execution against defendant Bach, an order was made requiring a third person to attend before the judge and submit to an examination as to property of the judgment debtor alleged to be in his possession. Upon the return day counsel for the third party raised a preliminary objection that no witness’ fee bad been paid when the order was served.

Motion by the plaintiff to retax two items in the defendant’s bill of costs, $10 costs before notice of trial, and an extra allowance. After issue joined, and before notice of trial, defendant served an offer to allow judgment against him for $43.75, and interest from a day named, which, up to the last day which plaintiff liad to accept the offer amounted to $5.78, making the total amount of the offer $49.53.

Order to show cause why an appraiser should not be appointed and collateral inheritance tax paid on specified legacies.

<p>1. Service of summons, when set aside ; deceit.] Service of summons upon a defendant residing out of the jurisdiction of the court, which is procured by trickery and deceit, will be set aside on motion. So held, where the attorney’s clerk notified the defendant that he would meet him at a specified time and place within the jurisdiction, and on attending, supposing some one desired a business interview, the summons was served.</p>

<p>1. Service of summons ; appearance of stranger.] A person not named in the summons, but who is served therewith by mistake, has no right to appear and defend upon the merits by alleging that he does not owe the debt alleged • and if he does so, and plaintiff goes to trial upon the answer tendered, the court at trial term has no jurisdiction on the issue raised by the stranger served, to direct a judgment against the defendant on the record, who failed to appear.</p> <p>2. Remedy of plaintiff in such case.] The proper course of the plaintiff is to return or move to set aside the stranger’s answer. Judgment at the trial cannot be given against one not served.</p> <p>3. Remedy of defendant.] The intended defendant, against whom such judgment was taken, may come in and have it set aside on motion.</p>

Trial by the court. Henry R. Pierson, as receiver of the Widows’ and Orphans’ Benefit Life Insurance Association, brought this action against A. W. Morgan and fourteen others.

.The action was brought by Robert Willets and others, as executors of the will of Samuel Willets, deceased, against Sarah A. Willets and others, for the construction of the will, and the determination of the validity of a clause (designated as the ninth) which was as follows: “ I do give and bequeath to [here he named seven persons, relatives or friends] the survivors and survivor of them, the sum of one hundred thousand dollars, relying .upon them, to dispose of the same…