Volume 28 — Abbott's New Cases

Appeal by defendant from judgment of eighth district court in favor of plaintiff. The action was brought by Virginia W. Baldwin against Wilhelmina A. Thibadeau and others to recover the sum of $208.33, agreed to be deposited by the defendants as lessees, pursuant to the terms of a lease in writing and under seal, as additional security for the performance of the covenants on their part, and not as rent.

Motion, for new trial. This action was brought by Elizabeth Buckel against Anna Suss to recover damages for enticing away plaintiff’s husband and wrongfully depriving plaintiff of the “ comfort, society, consort, aid and assistance of her said husband.” The complaint alleged that the acts occurred in and about the month of May, 1885, while the plaintiff was living and cohabiting with her said husband in the city of New York and while they were living together as man and wife.

<p>1. Executors, etc.j Assignee of debt may petition surrogate for payment]* An assignee of a claim against a decedent’s estate is a creditor, within the meaning of Code Civ. Pro. § 2717; and may petition the surrogate to direct payment,</p> <p>2. The same.] Such a petition may be sustained, where the creditor acquired the claim by subrogation merely, from having voluntarily paid decedent’s debt, although there is no formal assignment.</p>

<p>In the matter of the judicial settlement of the accounts of Margaret McCabe, as administratrix, etc., of Thomas McCabe, deceased, the next of kin of deceased were the following nephew and nieces: Thomas A. Burning, Margaret McCabe, administratrix; Rosannah Hughes and Annie L. Bryan. ■ In a schedule of the account, the administratrix alleged that Annie L. Bryan and Burning had severally assigned their respective interests in the estate to said Rosannah Hughes, and the alleged assignment of. Burning is referred to in, and annexed to, the account. Burning appeared and objected, among other things, that the account omitted to charge the administratrix with all of the property of the intestate, that an item of credit claimed for six hundred dollars paid for legal services was excessive and should not be allowed. He admitted the execution of the assignment, but alleged that it was made without consideration, was procured by false and fraudulent representations, and is void.</p>

Demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action. The action was brought by William Hart, jr., against Charles H. Albright and Joseph Steindler.

<p>1. Husband and wife ; estate by the'entirety ; surplus moneys on foreclosure.] Surplus moneys arising out of a foreclosure sale of premises owned by husband and wife as tenants by the entirety, are constructively real estate, and the husband and wife remain tenants by the entirety as to the fund.</p> <p>2. Same.] The common law rule giving a husband the possession and control of lands owned by him and his wife as tenants by the entirety, does not entitle the husband to the' possession and control of surplus moneys arising out of a sale under foreclosure of such an estate, for to place the moneys under his control would tend to defeat the wife’s right of survivor-ship.</p> <p>3. Same ; linpounding fund to await survivorship.] Such surplus moneys should be deposited under the direction of the court to await the period of survivorship, then to be paid to the survivor, and the income meanwhile should be paid to the husband*</p>

The action was brought by Winfield Waters against Siegmund Harris to recover on a note alleged to have been made by defendant and one Albert Hirsch as co-partners of the firm of “ Albert Hirsch ” and delivered to plaintiff’s assignors. The firm of Albert Hirsch had been formed as • a limited partnership with the defendant as a special partner. The parties to this action stipulated, however, as follows : 1.

<p>Partition. Motion by plaintiff upon referee's report, for a decree of sale, with costs and additional allowance.</p> <p>The action is brought by David M. Sails and others,, against Lovina C. Sails and others.</p> <p>Defendants Baird and Craig, creditors of Enoch B. Sails, from whom the property sought to be partitioned descended, ask to have inserted in the decree a provision that their debts are a prior lien and should be paid before anything' is paid upon a mortgage given by Samuel A. Sails, a. deceased son of Enoch B., upon his interest in the property, to the defendant, George Z. Erwin ; and they also, move for costs to be paid out of the fund to be produced, by the sale.</p> <p>The further facts are stated in the opinion. 1</p>

<p>1. Superior City Courts.] The N. Y. Superior Court has the same right as the Supreme Court to remove an action pending in another court to itself and consolidate it with an action between the same parties in the Superior Court.</p> <p>2. Consolidation of actionsl\ It is no objection to the removal and consolidation of two suits that they were brought at different times, and that the second cause of action had not accrued at the time when the first suit was commenced.</p> <p>3, The same.] In case of any prejudice to the plaintiff, terms may be imposed as a condition of ordering removal and consolidation.</p>

Motion to retax costs, on the ground that the réferee was entitled to but one fee in two actions tried at the .same time. The facts are fully stated in the opinion.

Trial without a jury of an action of ejectment. The action was brought by Margaret Clark against Abraham Davis and others to recover a narrow strip of land eighteen inches wide on the northerly side of One Hundred and Twelfth street.

The action was brought by Peter A. Strack against John Hurd to recover a balance claimed to be due on a contract. The facts are fully stated in the opinion.

The plaintiff owns two lots on 106th street, 175 feet westerly from Eighth avenue, in the city of New York, on which there are two five-story brick and stone double tenements-The defendant entered into a contract with the municipal authorities to construct a sewer in 106th- street, underneath the sidewalk in front of the plaintiff’s property, to a depth of more than ten feet, and in excavating refused to shore up or protect the plaintiff’s property, and unless so protected…

<p>Payment into court after judgment^ A judgment for damages having been recovered by an infant plaintiff, through his guardian ad litem, both parties having agreed not to appeal, no execution having been issued, and defendant being willing to pay the judgment, but the plaintiff’s guardian ad litem being unable: to give the security required by Code Civ. Pro. § 474, to entitle him to receive the amount of the judgment,—held, that under the circumstances an order permitting defendant to pay the amount of the judgment into court and directing the judgment to be thereupon cancelled, was a proper exercise of the inherent equitable powers of a superior court of record over its own judgment and its power to protect the money and property of an infant.*</p>

The action was brought by Leopold Adler against the Metropolitan Elevated Railway Company, and another, to restrain the operation of defendant’s railway in front of plaintiff’s premises, No. 132 First avenue. Plaintiff obtained a judgment for past damages and an injunction against the operation of the road if defendant failed to pay a specified sum for the easement. Defendants were also directed to remove so much of their station as extended into Eighth street.

affirming an order denying a motion to disallow costs. The action was brought by Melanie Effray against Marie E. Masson as administratrix of Marie Ann Thuillier to recover for board and lodging furnished defendant’s .intestate. The further facts are stated in the opinion.

Minna Knoch brought this action against Louis Funke, Jr., to recover in respect of alleged partnership transactions in a business carried on by defendant and in which plaintiff claimed an interest, which transactions covered a long period of time. The suit was not commenced until nearly six years after the close of the alleged transactions or the determination of plaintiff’s rights, or other accrual of the right of action.

Y. City Court, and also from .an order denying a motion to allow plaintiff to institute .and maintain such action in the City Court. An action was brought in the city court by David Rosenbaum against Felicia Denison. Subsequent to the Fringing of the action Felicia Denison was declared a lunatic by proceedings in the supreme court, and John Delahunty was appointed as her committee.

The action was brought by George W. McLean,, receiver of taxes, against the Julien Electric Company..

The action was brought by Antoinette Macauley against Robert H. Smith and others to have certain conveyances of real estate by warranty deeds declared to be mortgages, .and to have the real estate adjudged to be subject to the lien of a certain judgment recovered by the plaintiff against the grantor in such deeds, and an execution issued thereon.

<p>1. Partnership; misappropriation of funds,] The interest of a partner in funds of the firm is the legal title to an undivided. interest in the whole, and his misappropriation thereof to his-personal use is not stealing or embezzlement for the purpose of. determining the right of the co-partners to follow the diverted fund.</p> <p>2. The same.] Where such funds have been used by the partner in paying premiums on insurance policies on his own life in favor of his wife, the equity of the co-partners in the sums received by the wife upon such policies on her husband’s death is limited to restoration of the sums diverted to the payment ' of premiums, and does not extend to the entire sum received on policies secured and paid for with such diverted funds.</p> <p>3, The same.] It seems that the insurable interest of the wife in the life of her husband is a property right existing in her favor from which in part result the proceeds of the policy, which she: is entitled to hold to that extent for her own benefit.</p>

<p>1. Trials ; awarding issuesl] The constitutional’right to a trial by jury in an action for divorce cannot be impaired by the rules of practice limiting the time for making an application to frame issues.*</p> <p>2. Alimony pendente litel] In an action against a husband for divorce, the operation of an order directing the payment of alimony until trial will be suspended, where defendant is ready for trial upon the cause coming up at an equity term, but plaintiff compels postponement by insisting on her right to a trial by jury.</p>

Charles E. Hubbell, as receiver of the Syracuse Iron Works, brought this action against that company and Alfred Wilkinson, as trustee under its mortgage bonds, and Giles and Charles B. Everson, the Merchant’s National Bank and the Robert Gere Bank, and others, to determine questions as to the validity of bonds issued by the Syracuse Iron Works some of which were held by various defendants.

Demurrer to answer. The action was brought by Lucius Willard Sawyer against James Gordon Bennett and others for libel. The complaint alleged that the alleged libelous matter was false. The answer contained a general denial, and also set up as separate defenses the truth in justification of portions of the alleged libel. Plaintiff demurred to the •defenses setting up the truth in justification.

Appeal to the Court of Appeals from an order of the General Term of the Supreme Court, First Department,, reversing an order of the Special Term denying the motion of a purchaser at a foreclosure sale to be relieved from his bid. The action for foreclosure was brought by Herman Wronkow against Hobart Oakley and others.

Y. city court affirming a judgment of that court in favor of the plaintiff entered upon a verdict directed- by the trial court. Oliver H. Perry, a resident of the State of New Jersey, sued the Erie Transfer Company, a corporation created under the laws of that State, for the hire of certain teams •of horses. At the trial, plaintiff introduced evidence of the hiring •of the teams by defendant’s messengers in Jersey City and rested.

<p>2. Pleading; allegation of non-paymentl\ In an action against a railroad company to recover the amount of an award against it for land taken under L. 1850, c. 14, § 18, as am’d by L. 1876, c. 198, the complaint is demurrable if it does not allege recoid of the award or of a certified copy, and also non-payment of it.</p> <p>2. The same. It seems that in every action upon an ordinary contract for the payment of money, non-payment is a fact which constitutes the breach of the contract and is the essence of the action, and must be alleged and proved.*</p>

<p>1. Injunction ; itijury to real estate.] The owner of a house erected upon a stratum of rock extending through adjoining premises, may enjoin the owner of the adjoining premises from blasting the rock, where the blasting, even if conducted with greatest care, would cause serious injury to the house.</p> <p>2. The same] In such a case, the act itself being wrongful, the defendant cannot shield himself from the consequences by making a contract with another to do the wrong for him ; the rule, that one contracting with another to do a lawful act, in a lawful manner, is not answerable to a stranger for the manner in which the contractor or his servants do the work, does not apply.</p> <p>3. Forms] Form of complaint in an action by an owner of a house to enjoin an adjoining owner from blasting.</p>