Volume 3 — New York State Reporter

The relator is owner of a mortgage upon certain lands situated in the town, of Black Brook, Clinton county. These lands were sold at the tax sale of 1877, for the unpaid taxes for the years 1866 to 1870 inclusive, and a deed for them was afterward given by the comptroller to the state as purchaser. It was again sold at the tax sale of 1881 for the unpaid taxes of 1871 to 1876 inclusive, and was again conveyed to the state when the time to redeem had expired.

Action to recover damages for personal injuries sustained by employee of defendant, on ground that defendant was negligent in allowing defective engine to be used in its business.

<p>1. Deeds—Covenants—Conditions.</p> <p>No technical form of words is necessary to create a condition in a deed if there appear a clear intent on the part of the grantor to that effect. No such intention appears where the agreement on the part of the grantee is in the form of a covenant pure and simple, and no words of proviso, or condition, and no provision for re-entry are contained in the deed. An agreement can operate as a covenant without the grantee signing the deed.</p> <p>3. Same.</p> <p>An agreement limiting the use of granted premises, being a covenant, not a condition, its violation creates no forfeiture of the estate.</p>

<p>Will—Lost ob destroyed—When presumed to have been revoked.</p> <p>The presumption of law is that a will shown to have been in the custody of the deceased and not subsequently iound in his papers, has been revoked by him. Where it is claimed that the will was destroyed, it is not enough to show that there was opportunity for wrong, there must be something tending to show that wrong was done.</p>

<p>Wills—Undue dotluxnce—Pboof of.</p> <p>Where a will was not unnatural in the light of the position the testator had taken in previous family dissensions, the mere fact that there was opportunity for undue influence is not enough. It must be shown that such influence was actually exercised. The facts and circumstances must tend to establish it where it is not the subject of direct proof. That the testator was wrong in the position he had taken in said dissensions matters not, as he was the judge to determine his course, not the courts.</p>

<p>Appeal from a judgment of fire commissioners removing relator.</p>

<p>Assault—Personal injury—Loss of time an item of damages—Erroneous CHARGE TO JURY.</p> <p>In an action for damages for an assault it is error for the court to charge the jury that they might allow plaintiff for loss of time consequent upon the assault where there was no evidence as to what the time was worth.</p>

<p>1. Arrest—Order oe.</p> <p>Where there are several causes of action and the right to arrest depends upon the existence of extrinsic facts, if the extrinsic facts fail as to any one cause of action, the whole order of arrest must fall.</p> <p>3. Same.</p> <p>But.this rule is not applicable to a case, where the affidavits to establish fraud m the sale of pmrt of the property in suit are insufficient. Such fraud is not an extrinsic fact but a necessary element of the cause of action; it is not a part of the train of extrinsic facts supporting the order of arrest.</p> <p>8. Same—Bail mat be reduced.</p> <p>The proper rule in such case is, that if one of the causes of action set forth in the complaint is bad the bail may be reduced, but the order of arrest allowed to stand as to the residue.</p>

<p>Taxes and assessments—Monet borboxed on governments liable to</p> <p>TAXATION.</p> <p>Money once borrowed is the absolute property of the borrower, and there is no law exempting money from taxation. Money borrowed on Government bonds is liable to taxation.</p>

<p>Appeal from judgment in favor of plaintiff.</p>

<p>Practice—Mortgage—Foreclosure—Judgment.</p> <p>In an order purporting to amend a judgment regularly obtained in an action for foreclosure, “So as to include all lands described in said mortgage, and which were not shown upon the trial to have been released from the lien of said mortgage,” making no mention of the lands sought to be included in this judgment, is whtifcr inoperative, and should be vacated. The judgment determines what wwstproved on the trial, and to render the judgment so indefinite as not to fi^mine the land actually to he sold under it, but to leave that question xd «Indent upon what had occurred on the trial, unknown to purchasers, antr always a matter of dispute, should not be allowed.</p>

<p>Stay of proceedings—When action on bond of non-resident executor</p> <p>SHOULD BE STAYED.</p> <p>In an action brought on a bond of a non-resident executor, f'e principal breach alleged being the failure to comply with a decree of the surrogate for the payment of certain moneys, the decree having been affirmed by the supreme court, and an appeal therefrom taken to the court of appeals; on application by the surety. Held, that this action should be stayed until after the determination of the appeal on conditions.</p>

<p>Practice—Jury trial must be awarded .upon the reversal in a probate case—Code Ciy. Pro., § 2588.</p> <p>The general term must order a jury trial where it reverses the decree of the surrogate in matters of probate. It has no other power under Code Civil Procedure, § 2588.</p>

<p>Appeal from judgment, in favor of defendant, entered on order non-suiting the plaintiff.</p>

<p>Married women—Charging their separate estate—Promissory note— Liability op wipe.</p> <p>Where defendant, a married woman, was conducting a separate business and in course of it bought sash and blinds, for which a note was given signed by her husband as attorney, he conducting the business under power of attorney, she being present when note was given and saying it was her note, and also endorsing same with apt words to bind her separate estate, protest being waived by the husband, in action brought on note by third party, !o whom it had been transferred. Held, that the wife having received the property, for which the note was given, as purchaser, she bound herself by the signature of her husband as attorney, and that she is also liable as endorser. Per Barnard, P. J. Held,, further, that the contract of the wife is a guaranty and the guarantor is liable without protest and notice. Per Chllbn, J.</p>

<p>Appeal from judgment in favor of plaintiff on verdict-of a jury.</p>

<p>Motion to reduce assessment of the relators, in the town of Hoosao, Bensselaer county, U. T.</p>

<p>The issues in this case were tried before a referee, and on the coming in of his report an interlocutory judgment was entered by which it was declared that the right and interest of the plaintiff, in the real estate, was one-third, and that of the defendant, Alexander Davis, was two-thirds, subject to the inchoate right of dower of his wife, and partition was ordered made between them accordingly.</p> <p>As to costs, bile report of the referee is, that the plaintiff and Alexander ■ Davis are each entitled to costs, to be paid by them respectively, in proportion to their respective rights and interests in the land partitioned.</p> <p>Upon the application for final judgment the plaintiff claims that she is entitled to costs of course, and that Alexander Davis is.not entitled to costs against her.</p>

Motion by plaintiff for an order requiring defendant to execute deeds conveying lands in Illinois to a receiver appointed by the county judge of Ontario county in proceedings supplementary to execution as required by an order of said judge, and that he be punished for contempt for neglecting and refusing to obey said order.

<p>Practice—New trial—Action to recover real property—Code Civ. Pro., § 1525—Rents and profits need not be paid as condition for</p> <p>A NEW TRIAL.</p> <p>Where the complaint in an action to recover real property demanded judgment for the possession of the premises and for $200, the plaintiff's "damages, by the withholding the said premises by defendant and use of the same, and the plaintiff had judgment that she recover of the defendant $72 for the wrongful detention and withholding of said real estate from her. Held, that the damages asked for and adjudged included the rents and profits, and need not be paid as a condition for a new trial under Code Civil Procedure, § 1525.</p>

<p>1. Pbactice—Judgment boll—Oc what it should consist—Code Orv. Peo., § 1237.</p> <p>Where all there was in the judgment roll with regard to the verdict was in the recital in the copy judgment which forms part of the roll and was as follows: “ This action having been tried by a jury at a circuit court held at the court house in Auburn, 3ST. Y., in and for said county, on the 7th day of Hay, 1886, before Hon. F. A. Hacomber, and the jury having found a verdict for the defendant and against the plaintiff therein, and said verdict having been entered in the minutes of said court, now, on motion of E. H. Avery, defendant’s attorney, it is hereby adjudged that the defendant recover of the plaintiff the sum of $67.74 for its costs and disbursements in said action.” Sold, that the judgment roll was defective in that it did not contain the verdict of the jury as required by section 1237 Code Civil Procedure. But such defect in the judgment roll is not a ground for setting aside the judgment itself.</p> <p>% Same—Costs—Code Crv. Pro., § 3229.</p> <p>The rendition of a general verdict for the defendant does not alone entitle it to a judgment for costs. ' It is only entitled to costs upon the rendering of final judgment in the action, (Code Civ. Pro., § 3229), and that final judgment should be an adjudication of the action or issues. Code Civil Procedure, § 1236.</p> <p>*3. Same—Final judgment—Heaning or.</p> <p>Where, as in this case, the only determination of the issues is that made by the verdict, and there is no final judgment of the court upon them in the judgment as entered, within the meaning of section 3229, Code Civil Procedure, the judgment is defective. Such defect is, however, amendable and in a proper case an amendment would be allowed.</p>

<p>Practice—Affidavits—Effect of omitting venue—Amendment—Code Civ. Peo., § 72'3.</p> <p>The venue of an affidavit is prima facie evidence of the place where it_ was sworn to, and an affidavit wanting a venue, or a statement in the jurat as to where it was taken contains no evidence that it was sworn to within the jurisdiction of the officer administering the oath, and it is prima facie a nullity. But the omission does not invalidate the oath or render it a nullity if it be shown that it was duly administered by a proper officer within his jurisdiction. The omission may be supplied by amendment under Code Civil Procedure, § 723.</p>

<p>1. Discontinuance.</p> <p>A suitor has a right to discontinue any action or proceeding commenced by him except when substantial rights of others have accrued and injustice will Tie done to them by permitting a discontinuance.</p> <p>8. Same—Effect on liability on injunction undertaking.</p> <p>Where an injunction has been dissolved upon a hearing of the parties, a discontinuance of the action at the instance of the plaintiff will be such a ■final determination that the plaintiff was not entitled to the injunction, as will sustain the action upon the undertaking to recover the defendant’s damages, and a reference may be had to ascertain the amount of damages.No right of the defendant under the undertaking will be imnerilled or affected by such discontinuance.</p> <p>3. Answer demanding determination of rights of defendants between</p> <p>THEMSELVES—SECTION 531, CODE OlV. PRO.</p> <p>The provisions of section 531 of the Code of Civil Procedure, that where the judgment may determine the ultimate rights of two or more deiendanls, as between themselves, a defendant who requires such a determination must demand it in his answer, and must serve a copy of his answer upon each of the defendants to be affected by the determination, do not apply except in the case of a co-defendant who has appeared in the-action.</p>

<p>Replevin-undertaking by defendant—Code Crv. Pro., §§ 1698, 1704.</p> <p>In an action to recover chattels the affidavit of the plaintiff stated only the aggregate value of the chattels, the sheriff replevied only a part of them. Held, that the undertaking of the defendant should he for the return of the articles actually replevied. The plaintifE cannot by stating the aggregate value compel the defendant to give an undertaking for the return of all the chattels where a part only have been replevied by the sheriff.</p>

<p>Stay of proceedings—Execution of final judgment in partition— When stay should not be granted.</p> <p>The execution of a final judgment in a partition suit, which directs the distribution of the proceeds of the sale of the subject of the action should not be suspended or stayed for a long and indefinite period upon petition of a stranger to the action, to enable him to see if he cannot in another action establish a lien upon such proceeds.</p>

<p>New York (city of)—Street cars—Licenses to.</p> <p>Where a resolution of the common council of the city of New York after reciting certain considerations, provided that “the said parties (The Third Avenue Railroad), shall pay from the date of the opening of the said railroad, the license fee for each car now allowed by law, and shall have licenses accordingly.” Held, that from the resolutions, it must be assumed that both parties regarded the law as having at that time fixed a license fee; and there being at the time of the passage of the resolution stages or omnibuses which were engaged in the transportation of passengers for compensation, between points which corresponded very nearly with the route of the railroad, and those vehicles under an ordinance of the common council, paid an annual license fee to the city; it was this license fee provided for by this ordinance to which the city and its grantees had reference, and which the railroad should be required to pay.</p>

<p>Abbest—Obdeb oe—Code Civ. Pbo., § 111. ,</p> <p>The relator was arres' ed by virtue of an order of arrest granted in an a:.tion brought by his wife to procure a separation. Held, that such an order of arrest is not a mandat) to enforce the recovery of a sum of money within the meaning of section 111 of the Code of Civil Procedure, as amended by section 3 of chapter 672 of the Laws of 1886, and the prisoner is not entitled to his discharg.-.</p>

<p>1. Libel—Pleadings in—Complaint—Answer.</p> <p>If an allegation of good character contained in the complaint were not denied by the answer, the plaintiff’s bad character could not be shown -in mitigation of damages. The denial should not be stricken out.</p> <p>S. Same—Matter libellous per se.</p> <p>When the complaint alleges statements made which are libellous per se it is not necessary to aver matters showing that they injured the plaintiff.</p>

<p>1. New York (city of)—Arcade railway—Private nuisance—Injunc-</p> <p>tion—Parties.</p> <p>When an act, besides being a public.nuisance, will be specially injurious to several separate owners of real estate they can join in an action to restrain the creation of the nuisance.</p> <p>2. Same—Numerous parties—One or more may sue for all—Code Oiy.</p> <p>Pro., § 448.</p> <p>Where the question is one of a common or general interest of many persons, or where the persons who might be made parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue for the benefit of all, ana the various allegations in the complaint in relation to the damages which will be caused to such other parties are not irrelevant.</p> <p>3. Same—Complaint-allegations in.</p> <p>Where the plaintiff does not sue in behalf of the municipality, allegations as to the amount of taxes paid the city are irrelevant.</p> <p>4. Public nuisance.</p> <p>A railroad constructed under an unconstitutional act is a public nuisance.</p> <p>5. Private nuisance, allegations op pacts showing damage.</p> <p>A private individual cannot maintain an action to abate or restrain a publ.c nuisance unless specially injured and if the complaint does not set forth facts to establish this it is demurrable.</p>

<p>1. Pleadings—Decedent’s estates—Action against heirs by creditors of decedent—Code Civ. Pro., § 1848, sub. 2—Sufficiency of com- '</p> <p>PLAINT.</p> <p>In an action brought by a creditor against the heirs of a decedent under sub. 2 of section 1848, Code Civil Procedure, it ,s not necessary for the plaintiff to set forth in his complaint the evidence by which he expects to prove his case upon the trial. Resultant and not evidentiary facts must be pleaded.</p> <p>3. Same—Purchaser—Code Crv. Pro. § 1808.</p> <p>Although a defendant to such action may be entitled to protection under section 1863, Code Civil Procedure, yet if the complainant alleges him to be a purchaser, with notice of the plaintiff’s claim, it cannot be assumed upon demurrer that the land hold by him cannot be sold to satisfy the plaintiff's claim.</p> <p>.3. Same—Parties—Executors of decedent.</p> <p>The executor of decedent is not a necessary party to such an action.</p> <p>4. Same—Trustees of heir—Husband of heir—proper parties.</p> <p>The executors of an heir of the decedent, who were also trustees of the into:est which she had in the real estate of the decedent were properly nada paRies. Where the husband of an heir of the decedent has or may claim, to have an estate by the curtesy in his estate he is properly made a party.</p>

<p>Complaint—Improper joinder of causes of action—Code Crv. Pro., S 484.</p> <p>Where in an action to have a trust sought to be created by a testator declared void, for the reason that it illegally suspends the power of alienation of the property described in the complaint, it is not an improper joinder of causes of action to ask for relief against a deed from the executors to third parties who are joined as defendants.</p>

<p>Motion for judgment on demurrer as frivolous.</p>

<p>1. Excise law—Action to recover penalty—Married woman—May be</p> <p>SUED ALONE FOR SUCH PENALTY. J</p> <p>An action may be maintained against a married woman to recover a penalty for a violation of the excise law, where she is in possession of certain real estate conducting and carrying on a separate business1 of her own, and while doing so, she sells spirituous liquors, etc,, to be drank on the premises without having a license therefor,</p> <p>2. Same—Act one relating to her separate estate—Husband not</p> <p>LIABLE AND NEED NOT BE JOINED.</p> <p>The use by her of her separate real estate for unlawful purposes makes the act one relating to her separate estate and for which she alone is liable. The husband is not liable alone, or jointly with her. She is liable the same as though unmarried and can be sued in the same manner.</p> <p>S. Same—Code Civ., Pro., § 494—Answer setting up new matter by</p> <p>WAY OF DEFENSE—MAY BE DEMURRED TO.</p> <p>The complaint alleged, that defendant, (a married woman), is in the possession of the premises carrying on business therein, and that she sold to divers persons whose names are unknown, spirituous liquors, etc., tobe drank thereon, without having a license, etc. The defendant averred in her answer that she is a married woman, that for many years last past she has keen living and cohabiting with her husband at the place and on the premises described in the complaint, that he is now living and liable for the claimed penalty and not the defendant. That he, as the husband of defendant, is a necessary party and should he joined with her as a co-defendant. Held, that, the answer sets up new matter by way of a defense within section 494 Code Civil Procedure, and is therefore, the subject of a demurrer.</p>

This is an action by the relator, Frank E. Sickels, for a writ of peremptory mandamus directed to the respondents as a board of excise commissioners of the city of Buffalo, commanding them to proceed to investigate and decide certain charges presented to them by Mr. Dewitt 0. Baker, against various saloon-keepers in the city of Buffalo, for keeping licensed saloons open on Sunday, and selling beer therein on that day.

<p>1. Trustee—Testamentary—When can be removed—Code Civ. Pro.,</p> <p>§ 2817.</p> <p>One who is designated by a will as testamentary trustee, but who has never acted as such or formally accepted the trust, and who is personally disqualified or incompetent to accept it, may be removed by the surrogate under the authority of section 2817'of the Code of Civil Procedure.</p> <p>2. Same—When bond may be required of successor.</p> <p>When a decree removing a sole testamentary trustee designates his successor, the surrogate may exact a bond from such successor or may refuse to exact it in his discretion.</p> <p>3. Same—Who entitled to notice of application.</p> <p>He may also exercise his discretion in determining the persons to whom notice shall be given of the application for the appointment of the new trustee.</p>

<p>1. Executors and administrators—Administration with the will annexed—Assets.</p> <p>Of three persons named by testatrix, hut two qualified, and their letters were revoked. The husband, a beneficiary under the will, applies for letters of administration c. t. a., alleging that there remains an unadministered asset, a chose in action, touching which there is pending a suit at law. The petition is opposed by a daughter of testatrix, a residuary legatee under her will. Meld, that the claim in suit was an unadministered asset and that the surrogate had jurisdiction to grant letters of administration, with the will annexed.</p> <p>2. Same—Pbiobity of bight—Code of Civ. Peo., § 2643.</p> <p>Held, that the fact that the chose in action for which action was pending was a claim against the husband of residuary legatee did not defeat her right to be appointed as administratrix c. t. a., in preference to the petitioner. Only for cause that constitutes a statutory disqualification can one who is otherwise entitled, be denied letters. The order of priority is settled by the Code of Civ. Pro., § 2643.</p>

<p>1. Will—Testable capacity.</p> <p>Where the evidence was that the decedent had long been addicted to the use, and at times to the excessive use, of intoxicating liquors, but it did not appear that at the time when the paper purporting to be her will received her signature the was under the immediate influence of stimulants, or that from habits of intemperance or from any other cause her mental or moral faculties had become so impaired, that upon the day this paper was executed, she was unfit to make or execute a will. Reid, not sufficient proof that decedent was not on that day possessed of testable capacity.</p> <p>2. Proof of due execution.</p> <p>It is not necessary in all cases to prove that a will was read over to the deceased, or that it was drawn from instructions given by her. The true doctrine seems to be that it is a circumstance which should awaken the vigilance and jealousy of the court to watch and see whether by some means or other a knowledge of the contents was brought home to the deceased, or it was shown that it was the intention of the deceased to make such a disposition of her property, which the court would accept as sufficient proof, even though the drawer of that will took a considerable benefit under it.</p> <p>3. Same—Facts and circumstances which go to establish the factum</p> <p>OF A WILL.</p> <p>Where as in this case the instrument in question is written in a very plain hand, is all upon one 'page and can easily be read in half a minute, containing two provisions, only one of which is dispositive, and by that one, which occupied less than nine lines, the entire estate of the decedent is given to her cousins. Reid, that it may well have been that in the very act of subscribing her name the decedent read the instrument from beginning to end, and the factum of this will is duly established.</p> <p>4. Same—Undue influence.</p> <p>That S., one of the legatees and G-., the husband of the other, were present on the occasion of the execution, and assiduous in bringing it about, Q-. suggesting who should be the subscribing witnesses and summoning to decedent’s bedside the persons who acted in that capacity, the decedent obtaining the will from the hands of S., just before she put her name tó it. Reid, that although these circumstances would lead the court to closely scrutinize the evidence that concerns the decedent’s capacity, her appreciation of the character and effect of her acts, and the reasonableness of the disposition which she is claimed to have made of her estate, they are not of themselves sufficient to invalidate the will.</p>

<p>1. Executors and administrators—Accounting—Accumulation—When SHOULD BE DISTRIBUTED.</p> <p>Where there appears a clear excess of S$29,000 of income above annuities and other charges on an estate, to permit its retention for meeting the possible future demands of annuities would be to sanction an unlawful accumulation; it should be distributed.</p> <p>3. Will—Construction of—Executors’ commissions.</p> <p>Where the will provides for the commission and compensation of the executors, that in lieu of all other they were to receive as follows: “ On all sums to be received from my said partner as my capital in said partnership, and on all interest and income on investment in the public debt of the United States, or in county bonds, and on the proceeds of sale of real estate, one per cent of the amount received, and on all sums received from personal property sold, or rents, or the collection of debts owing to me, or for income of other funds or investments, five per cent of the amounts received, and on all sums of money invested by them, two per cent of _ the amount thereof.” In another article of the will the testator’s direction is to collect all "debts owing to me ” and invest the proceeds in (among other things) the “ public debt.” Held, that the executors were only entitled to one per cent on the amount received from the government on surrendering “ called bonds,” and two per cent for reinvesting the money so received.</p> <p>8. Same—Commissions on proceeds of sale of real estate—Lands</p> <p>PARTITIONED—COMMISSIONS NOT EARNED.</p> <p>Five per cent commission on the proceeds of sale of real estate were not earned by the action of the executor in allotting such real estate among the devisees. WLile under some circumstances, and for some purposes, such a disposition of realty might be regarded as a sale, it cannot be so regarded for the purposes of commissions.</p>

<p>1. Wills—Testamentary disposition.</p> <p>The right of testamentary disposition is given to all except idiots, infants- and persons of unsound mind. The law provides for the manner of execution, and restricts the testators power of disposition in respect to trusts, the creation of future estates, accumulations of income, charitable bequests and the dower of the widow, otherwise he may do what he wishes.</p> <p>2. Same—Duty of court.</p> <p>Courts cannot interfere to regulate the disposition of property after the testator is in his grave. They are not created for such purpose. It is the duty of the court to give effect to the testator’s intention when ascertained, and to give it full force and effect. Every person who disposes of property by will expects and is entitled to that right, and it must be respected.</p> <p>8. Same—Mental incapacity—Intemperance.</p> <p>Persons who use intoxicating liquors excessively and habitual drunkards may still make disposition of their property when free from the influence of drink. Proof of the testator’s intemperate habits will not defeat his power to dispose of his property by will when it is not shown that they rendered him of unsound mind.</p> <p>4. Same—Extent of power of disposition by.</p> <p>The widow or husband or heir at law and next of kin, while entitled to the estate of the deceased under the laws of descent and distribution, have no vested rights. They are only entitled to what he wishes to give them and no more.</p>

<p>1: Bonds—Coupons—Rights op holders op coupons.</p> <p>Holders of coupons may recover thereon without being interested in the bonds from which, they are taken.</p> <p>3. Same—Holder op coupon—Ho equities superior to holder op bond.</p> <p>But the holder of a coupon has no equities superior to the holder of the bond, and must measure his rights and equities by that, and if the bonds on their face refer to a mortgage the holders of the coupons must consult that, for they take subject to ihe stipulations contained therein.</p> <p>3. Same—Coupons—Bonds and mortgage must be construed together.</p> <p>In ascertaining the legal rights of the parties in such a case, the coupons, bonds and mortgage must he construed together, and interpreted so that effect may he given to all. Effect of waiver of default,</p>

<p>1. Mandamus—City court no jurisdiction to issue—Rules regulating</p> <p>THE JURISDICTION OP THE CITY COURT.</p> <p>The city court is not a superior city court, (Code Civ. Pro., 3343) and is limited to the jurisdiction which the legislature expressly confers upon it, with such other incidental authority as may be necessary to give proper effect to the powers expressly conferred,</p> <p>2. Same—Board op Excise.</p> <p>The city court of New York has no jurisdiction to issue writs of mandamus against the Board of Excise.</p>

<p>Practice—Order—Recitals est—-Appeal.</p> <p>A party cannot appeal from an order made on liis application or from terms imposed to which he assented. A recital in an order, that it was made on consent of parties, concludes them upon appeal.</p>

<p>Appeal from judgment entered on verdict of the jury favor of the plaintiff.</p>

On the 26th of May, 1885, the defendants gave an order to the firm, of August G-ast & Co. for 10,000 fans of a specified description, at the agreed price of $131.22. On the 2d of June, 1885, that firm delivered to the defendants 4910 of the fans, which were accepted and the defendants paid $65.85, which is credited in the complaint.

<p>Appeal from an interlocutory judgment overruling the plaintiff’s demurrer to this counter-claim interposed by the defendants.</p>

<p>Appeal from judgment entered on verdict directed by the trial judge.</p>

<p>Appeal from an. order made herein, granting plaintiff’s motion to set off judgments.</p>

<p>Appeal from order vacating judgment for irregularity.</p>

<p>Counter-claim—Requirements as to—Code Pro., § 150—Code Civ. Pro., §501.</p> <p>A counter-claim to tie available must belong to the defendant at the time of the commencement of the ac.ion.</p>

<p>1. Recovery under 50 dollars—Question of title to land.</p> <p>Where a plaintiff unnecessarily sets out in his complaint title to real property, no proof of title is needed, and if the recovery is for less than fifty dollars the defendant and not the plaintiff is entitled to costs.</p>

<p>Landlord and tenant—Action by one tenant against another for</p> <p>DAMAGES FROM OVERFLOW—EXPLANATION AS TO OVERFLOW MUST BE. MADE BY DEFENDANT.</p> <p>Where an overflow occurs upon an uppper floor which injures the tenant occupying the floors underneath, and the plaintiff has made out a prima facie case, it is for the defendant to explain how the overflow occurred. The defendant is supposed to know more about the management of his own premises than the plaintiff, and is, therefore, presumed to be liable to afiord a better explanation of the causes which led to the overflow than the tenant in the floors below.</p>

<p>1. Set-off—Of joint debt against a separate debt not allowed.</p> <p>Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or conversely, of a separate debt against a joint debt.</p> <p>2. Same—Exceptional role—When applies.</p> <p>The exceptional rule which permits a defendant on equitable principles to off-set a joint demand, existing against a firm, to a suit brought by an individual member thereof on a separate demand held and sued by him, applies only where all the members of the firm are insolvent, so that he is remediless at law, unless allowed to plead the set-off in defence of such action. The rule is founded on necessity and is not one of convenience only.</p>

<p>Appeal from judgment, entered on verdict in favor of plaintiff.</p>

<p>Libel and slander—What words actionable per se.</p> <p>The combination of words “Vous is a rascal and is not to be trusted; I have papers in my pocket on which he could be sent to State prison; he gave me a chattel mortgage on some of his property, and disposed of the property before paying the mortgage,” is actionable per se.</p>

<p>Counter-claim—Contract—Denial oe performance.</p> <p>A counter-claim for damages, in an action for goods delivered under an agreement for their manufacture, because they were not in accordance with the contract, cannot be upheld in the absence of any allegation of fraud or latent derect, and when there was no express warranty of the quality of the thing sold.</p>

The defendant filed a petition and bond to remove the •cause to the United States circuit court. The bond was made to the “People of the State of New York,” and not to the plaintiff. The plaintiff treated the removal as ineffective, and entered judgment in the state court as by default. The defendant thereupon moved to vacate the judgment as irregular and void. The other facts appear in the opinion.

<p>1. Abrest—Fraudulent representations made in foreign state— Party may be arrested here.</p> <p>A defendant may be arrested here for fraudulent representations made in the purchase of property in a foreign state or country.</p> <p>%. Same—Lex loci—Lex fori.</p> <p>The lex loci may determine the binding form of contracts, but the remedies for their enforcement and the punishment of fraud by civil action are governed by the lex fori.</p>

<p>1. Supplementary proceedings—Order extending recivership—Must</p> <p>BE ON NOTICE TO JUDGMENT DEBTOR—CODE ClY. PRO., §§ 2464-2466.</p> <p>Where the examination of a judgment debtor in proceedings supplementary to execution vas taken and closed, and three days thereafter an order was entered extending a receivership, without notice to the judgment debtor Held, that such order was unauthorized, and that the same reason for giving notice to the judgment debtor, on the appointment of a receiver, applies with equal force to an application extending a receivership.</p> <p>2. Same—When witness may be examined on subpoena.</p> <p>A witness cannot be examined on subpoena in supplementary proceedings until the institution of such proceedings by the service upon the judgment debtor of an order for his examination, and the court has no power-to dispense with such service.</p> <p>8. Same—When order directing judgment debtor to transper property TO RECEIVER UNAUTHORIZED AND VOID.</p> <p>An order directing a judgment debtor to transfer property to a receiver, based upon the examination of a witness taken without notice to the judgment debtor, and before the return day of the order for the judgment debtors examination, is unauthorized and void</p>

<p>The defendant was examined under an order in supplementary proceedings granted herein on the 8th day of March, 1886, and the plaintiff now moves for an order directing the defendant to pay the judgment out of an installment of salary due him October 1, 1886, as clerk of the sixth district court, or (2) for an order appointing a receiver and directing the defendant to pay said judgment in installments from his salary as he receives it, until the judgment is paid.</p>

<p>The action is in replevin to recover the possession of certain goods entrusted to the defendant on what is known in the trade as “ memorandum,” and the present motion is to vacate an order of arrest in said action, on the ground of the insufficiency of the papers on which it was granted.</p>

<p>Contempt—Fraudulent surety—When may be punished.</p> <p>Courts cannot permit the course of justice to he stayed or prevented by fictitious or fraudulent bail, and where an imposition has been successfully practiced by an incompetent and worthless surety appearing in open court and insisting on his sufficiency under oath, the fraudulent surety will be punished by a fine to the end that the loss occasioned be made good if possible.</p>

<p>The defendant, in the course of his examination on supplementary proceedings testified that he lost $400 of his money in gambling houses and in betting on horse races. The plaintiff: thereupon inquired where and with whom he lost his money. The plaintiff’s counsel states that the purpose of the question is to ascertain the places where the .money was lost, and the names of the winners, to the end that the receiver to be appointed herein may sue for and recover the money for the benefit of the defendant’s creditors. The defendant declines to give the information, on the ground that his answers to the questions may tend to criminate him by furnishing evidence on which he might be priminally prosecuted. The plaintiff’s counsel moves that the witness be directed to answer the questions.</p>

<p>Malicious prosecution.</p> <p>Where in an action for malicious prosecution the evidence shows a state of facts which led the defendant to believe (though mistakenly) the guilt of the plaintiff, and not such a one as to render him chargeable with reaching an erroneous conclusion because of a failure to exercise ordinary prudence and discretion, a verdict rendered m favor of the plaintiff on the ground that there was not sufficient evidence to show probable cause, should be set aside.</p>

<p>Executors and administrators—Discovery of property wrongfully WITHHELD FROM ADMINISTRATOR—CODE ClV. PRO., §§ 2606-2710—SUR-ROGATE HAS JURISDICTION TO DETERMINE QUESTION OF POSSESSION, BUT NOT OF TITLE.</p> <p>The appellant, an administrator, presented a petition to the surrogate, under Code Civil Procedure, section 2706, reciting that the respondent had in his possession certain bonds and notes which were the property of the deceased, which he ought to deliver to the administrator, but refused to do so. Code Civil Procedure, section 2710, provides that if the person cited shall answer “that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property.” The respondent answered that the property in question was placed in his hands by the deceased under an agreement that he should hold the same as security for such advances ashe should make to the deceased, at the same time agreeing to make such advances; that he made them and they were never repaid; that according to the agreement he disposed of the property during the life-time of the deceased and applied the proceeds to his reimbursement and that he had none of the property in his possession. The surrogate thereupon dismissed the proceeding. Upon appeal it was held, that if the respondent’s right to dismissal rested upon the statute solely, the objection that his answer did not conform to its requirements would have great force, but that the amendment to Code Civil Procedure, section 2710 was an attempt to codify the conditions under which the party who denies or avoids the claim of right and title in the administrator may assert his constitutional right to trial by jury. That the surrogate had the jurisdiction to determine the question of possession, but not the question of title. Held, by Parker, J., dissenting, that the surrogate erred in treating the answer as true, or as if it were proof of the matters which were therein alleged to be facts.</p>

<p>Contract—Specific performance—Condition precedent.</p> <p>Two actions being brought against executors of an estate to compel an accounting and for the determination of the share of the plaintiffs as beneficiaries under the will, the defendants in the present action agreed to execute a bond for the payment of the shares of the beneficiaries upon the discontinuance of the action, and upon the investment of a sum of money by the executors, to indemnify them for their liability thus assumed. The action being discontinued, this action was brought to compel a specific performance of the contract and judgment obtained decreeing the execution of the bond. Upon appeal it was "held that the investment by the executors was a condition precedent to the execution of the bond, and that a judgment decreeing the execution of the bond and not directing the investment by the executors was erroneous.</p>

<p>Contract—Extension oe time under—Warranty.</p> <p>Where the plaintiffs contracted to construct the defendant cars of a specified pattern and quality at a date fixed by the terms of the contract warranting them to be of the kind and quality agreed upon, the evidence upon the trial showing that certain defects in the construction were attributable to the fault of the defendant, and that the time for the completion of the cars had been extended, it was held, that in cases of express warranty in executory as well as executed sales, the ver.dee may rely upon the breach of warranty without offering to rescind the sale or return the property or even giving prompt notice of the defect. That the warranty did not cover those defects apparent to the de'endant when he accepted the cars, and that upon completion of the cars within the extended time, the plaintiff was entitled to the compensation agreed upon.</p>

<p>Appeal from a judgment rendered upon the trial at circuit, declaring a general assignment for benefit of creditors to be fraudulent and void upon its face.</p>

Appeal by the mayor, etc., from an order vacating an. assessment, for the expenses of constructing a sewer in a portion of St. Nicholas avenue, in the city of New York.

<p>1. Conspiracy—Damages — Partnership — When cause op action por</p> <p>CONSPIRACY COMPLETE—MEASURE OP DAMAGES.</p> <p>Where in an action by one partner against bis co-partner and strangers to the firm, for fraudulently conspiring to make and negotiate notes in the partnership name, with intent to compel the plaintiff to pay them, the noted had not been paid when the suit was commenced, but were paid by the plaintiff before trial. Held, that the cause of action was complete when the wrong was done, and before the notes were paid, and that the measure of damages was the amount of fraudulent notes and interest.</p> <p>2. Same—Charge to jury that no verdict could be bendered por</p> <p>PLAINTIPP UNLESS TWO, AT LEAST, CONSPIRED — NOT ERROR ENTITLING DEPENDANT TO REVERSAL OP JUDGMENT.</p> <p>The trial judge charged the jury that the action being for conspiracy, no verdict could be rendered for the plaintiff unless two, at least, conspired together and had carried out the conspiracy. This was excepted to. On appeal, held, that the plaintiff had the right to recover against the defendant who practiced the fraud, even though he failed to prove the conspiracy; but that the defendant could not complain of the plaintiffs failure to avail himself of that right, and that the charge was more favorable to them than they were entitled to, and not, therefore, an error entitling them to reverse the judgment.</p> <p>8. Same—Evidence.</p> <p>Held, further, that the judgment-roll in an action for an accounting between the partners, to which the defendants, Daily and Moore, were not parties, was properly received to establish the fact that the defrauding" partner had no interest in the firm when he committed the fraud. ></p>

<p>Appeal from a judgment entered upon the verdict of a jury at the circuit, and from an order denying a motion for a new trial.</p>

<p>1. Guardian—Custody of infants—When taken from: legal guardians.</p> <p>Where the habit of intemperance and. the conduct of the father are shown to be such as to render it not only improper, but rash and dangerous, to entrust him with the care and custody of his infant children, the court cannot be controlled in their disposition of said children by their; inclinations. The support, preservation, education, safety and the promotion of correct conduct in the children is the object controlling the proceeding for the appointment of a guardian.</p> <p>2. Same—When such order revoked.</p> <p>When the father by continued maintenance of habits of strict sobriety can show that no further danger exists of a relapse on his part,- the court-will, on application, revoke the order committing the care and custody of his children to another.</p> <p>3. Same—Practice—Affidavits—Weight of.</p> <p>Where it is apparent that the design and purpose of a father was at all times to conceal whatever might be derogatory, or made the subject of unfavorable comment concerning himself or his family from the observation of persons who were not its immediate members, the affidavits of-outsiders that they never saw him drinking or intoxicated adds but very little weight or support to his own.</p> <p>4. Same—When case heard on affidavit.</p> <p>Where parties are at liberty to present a case on affidavit before a surrogate, and elect to do so, the surrogate has power to hear and decide it or the affidavits. An objection to its being so presented not made until after the hearing will be too late.</p>

<p>Appeals by Frederick Robert and Jane R. Corning from a decree of the surrogate of the county of New York, ^ settling the accounts of the executor of the estate of Christopher R. Robert, deceased.</p>

<p>Appeal by the mayor, etc., of the city of New York, from an order reducing the assessment made for the expenses or regulating, grading, curbing, guttering and paving Worth street from Broadway to Chatham street.</p>

<p>Appeals by Carolina R. Garczynski from an order of the surrogate of the county of New York denying her application for an order directing an adjudication of the amount due from George F. Gilman to the estate, and its deposit in interest bearing securities in court, or in a trust company; and by the same person and Charles B. Gilman, from an order of the surrogate denying a motion to compel George F. Gilman to deposit $113,811 with the surrogate or the U. S. Trust Co.</p>

<p>UXBCUTOBS AND ADMINISTBATOBS—WHEN ACCOUNTABLE FOB LOSS OF BENT— TO WHAT EXTENT.</p> <p>On the accounting of an executor it appeared that he had leased premises belonging to the estate for a term of five years, at a yearly rental of $5,000, to tenants, who only paid him $1,000, and through fraud and trickery these tenants managed to keep the premises throughout the term without paying any more rent. It was shown that they were wholly insolvent, and that the only remedy of the executors would have been to dispossess them for non-payment of the rent. It was also shown that the full rental value of the property was about $3,000. Held, that the executor should be charged for rent lost if there was bad faith or willful negligence on his part. But that he should only be charged under the circumstances such an amount for rent lost as he would probably have realized by the prompt eviction of said tenants and the leasing of the property to another tenant.</p>

<p>1. Arrest—Order or—Defrauding creditors—Evidence or intention.</p> <p>Where, in January, 1884, a firm, for the purpose of extending its credit, made_ a stateme.it to a mercantile agency, stating their assets at §490,000, and liabilities at $800,000, and in March following to another firm stated their assets at $521,315, and liabilities at $359,001, and failed in September, 1886, it not appearing what had bee me of the property, except that the individual members had used a large part of the firm’s property for their individual benefit. Held, that the last fact was a material one to be considered on a motion to set aside an arrest on account of fraud.</p> <p>2. Same—What facts conclusively show intent to defraud.</p> <p>It also appearing that a large and unusual amount of their stock in trade was sold at public auction during 1884, that they had borrowed $40,000 and confessed judgment therefor, by which all the property of the firm which the individual members had not already got into their possession was seized under execution and there was nothing left on September first. Held, that the circumstances showed a deliberate intent to defraud the creditors of the firm and a good ground for an order of arrest SJtorill Soper Air Engine Oo.v. Wm. B. Han'wood, 30 Hun, 9, distinguiihed</p> <p>3. Same—Practice—On motion to set aside order.</p> <p>The court will not consider an application .to set aside an order of arrest on the ground of insufficiency of the papers on which it was granted, and as a part of the same motion an application to set aside the same order on new affidavits. In such case it will only regard the latter application and. allow answering affidavits to be submitted.</p>

<p>Appeal from judgment entered upon the report of a referee.</p>

<p>Appeal from order of the special term, dated July 7, 1873, and also from an order of April 19, 1886.</p>

Appeal by plaintiff from an order of Monroe special term denying motion to set aside an inquisition made in execution of a writ of inquiry.

Motion by the defendants for a new trial on exceptions taken at Cayuga circuit and ordered heard at general term in the first instance. The action is replevin to recover the possession of five-cows, alleged to have been obtained by the defendant Free-love, of the plaintiff by fraud. In February, 1819, the plaintiff sold the cows to Freelove,. and took his note due in one year for the purchase price.

The evidence tends to prove that the plaintiff made an agreement with the defendant, that he and his wife would work for him for the term of seven months, at the price of twenty-five dollars per month; that they entered into the service of the defendant under such contract March 3d, 1884, and continued to work until the 19th day of June, and not thereafter. The reason given by the plaintiff for the termination of the service was the sickness of his wife.

<p>Appeal from judgment of Monroe special term dismissing complaint.</p>

<p>Appeal from a judgment entered upon the decision of the Monroe special term dismissing the plaintiffs complaint upon the merits.</p>

<p>Equity action to foreclose a land contract heard at the Monroe special term; the judgment granting the prayer of the plaintiff’s complaint. On the 17th day of September, 1872, the plaintiff was the owner in fee simple of two separate parcels of land, upon one of which there was a mortgage lien of $1,000, called the Murray mortgage. For the payment of the debt thus secured the plaintiff was not personally hable. lipón both pieces there was also a mortgage lien for the sum of $961.70, called the Selden mortgage which was to secure the plaintiff’s individual obligation to pay that debt. On that day he entered into a written contract, under seal, to sell and convey both of said parcels to the defendant subject to the said mortgages, which the vendee agreed to pay as the same became due and payable. The contract was executed by the defendant and the further sum which he was to pay as purchase money was left blank in the contract, but it stated that such payments were to be made “in payments of $200 a year of principal and interest from the date thereof, with semi-annual interest from the date thereof until the whole sum should be paid.” The purchaser also agreed to pay all the taxes and assessments that shall be taxed or assessed upon such premises from the date of the contract until the same shall be fully paid. The contract contained a stipulation, to wit: “That the party of the first part, on receiving such payment at the time and in the manner above mentioned, shall at his own proper cost and expense, execute and deliver to the said party of the second part, or his assigns, a good and sufficient deed of conveyance thereof, with a release of wife’s dower and covenants against his own acts, except as against a mortgage by said party of the first part to H. R. Selden of $961.27, which Babcock is to pay.”</p> <p>The court found as a fact that the defendant agreed to pay the plaintiff as purchase money the sum of $1,057.87 at the times and in the manner stated in the contract. The purchaser went into possession of the premises and made payments of interest upon each of said mortgages, and on the trial the court found that he had made no other payments upon the purchase price of the premises. It was also found as a fact Mi at on the 27th of April, 1877, there was due and unpaid on the Murray mortgage $1,070 and upon the Selden mortgage $961.27 of principal and $168.38 interest, and on that day, with the consent of the defendant the plaintiff conveyed one parcel of the premises to Levy Lamey for the sum of $3,200, who assumed the payment of both of the mortgages and paid the balance of -the purchase money, $1,000, to the plaintiff, which was applied upon the unpaid purchase money claimed by the plaintiff to be due under the contract. It was also found as a fact that there was due and owing the plaintiff at the time of the commencement of this action, by the terms of the contract, $358.31, and that an installment of $57.87, the balance of the purchase money, fell due on the 17th day of September, 1378, which was before the trial of the action. The defendant neglected to pay the taxes assessed upon the property and they were paid by the plaintiff. The Selden mortgage remained unpaid at the time of the entry of the decree, and upon which there was due $961.77, making due for unpaid purchase money and taxes paid the gross sum of $843.17.</p> <p>The judgment' provided that upon payment by the defendant of the amount due the plaintiff, he was entitled to a conveyance of the parcel of land unconveyed by the plaintiff. That as between the plaintiff and defendant the latter is entitled to a conveyance free from the lien and charge of the Selden mortgage, and that the plaintiff shall, within ten days from the entry of judgment, procure a delivery to the said defendant of a release of the premises from the lien of that mortgage. That the defendant may, within thirty days from the notice of entry of said judgment, and the tender or delivery of said release, pay the plaintiff the amount found due with interests and costs, and upon making said payment the plaintiff shall execute and deliver to the said defendant a deed of conveyance of said premises with covenants of warranty, and if the defendant shall fail to make payment of that sum, then the premises are to be sold at public auction upon the usual notice. And out of the proceeds there is directed to be paid:</p> <p>First. The fees and expenses of the referee making said sale.</p> <p>Second. The plaintiff’s costs and taxes.</p> <p>Third. The amount due the plaintiff upon his contract, and the surplus, if any, to be paid the defendant.</p> <p>A referee was appointed to make the sale and to carry out the decree. From this judgment the plaintiff appeals.</p> <p>J. & Q. Van Voorhees, for app’lt; Josiah Sullivan, for resp’t.</p>

<p>Lease—Contract—Construction of.</p> <p>M. E. H. was the owner of an undivided one-half, of a grist mill, and is the wife of defendant P. H.; and defendants were doing business under the firm name of P. H. & Son, and H. was the duly authorized agent of M. E. «H. to lease her interests in the mill, and was authorized by her to lease the same to plaintiff, and receive pay therefor in flour and feed at the store of the defendants. The defendant P. H. leased to the plaintiff the undivided half interest owned by her for twenty-five dollars per month, which the plaintiff agreed to pay in flour and feed and other mill products, to be delivered at the store of the defendant, and M. 0. H. assented thereto. In an action by plaintiff to recover pay for flour, grain and feed sold and delivered by the plaintiff to the defendants, aud for grinding done at their special instance and request. Held, that the rent of the mill should be applied in payment of the plaintiff’s claim. While the consent of M. E. H. may have enabled the defendants to so take payment, and apply what they in that manner received on the rent, it gave to them, or to either of them, no right of action to enforce payment.</p>

<p>Practice—Appeal—New trial—Effect of findings on previous</p> <p>TRIALS.</p> <p>Where an action was brought to have a judgment obtained by one F. against H. O. S.,_ made a lien upon certain real estate owned by W. S., which it was claimed was improved and paid for by EL 0. S. The trial resulting in a judgment in favor of the plaintiff, which was affirmed in the general term, hut reversed in the court of appeals; and on the second trial the findings were in conflict with the facts as found by the court upon the first trial and approved by the general term. Held, that the general term will not reverse the judgment upon the grounds that the findings are against the evidence, where, upon the last trial, there was- a conflict in the evidence and the findings were made upon such conflict, and there is evidence which, if believed by the trial court, fully sustains the conclusions reached by it.</p>

<p>1. Contracts.</p> <p>A peculiar contract for the sale of stock in a manufacturing company-construed.</p> <p>2. Evidence—Judgment bold—Pleading.</p> <p>A judgment roll, though hot pleaded, when it is not claimed to he a bar-may he used as evidence in another suit between the parties to it.</p>

<p>1. WARRANTY—WHAT AMOUNTS TO.</p> <p>Where the vendor of a horse which the vendee knew that he had had out a short time, when asked the question “You have drove him single, I suppose, and he went all right?” answered, “ Yes, I have.” This answer being true, there is nothing in the question or answer that indicates any intention on the part of the vendor to warrant the future conduct of the horse.</p> <p>Z. Evidence—Competency.</p> <p>It is not competent for a party to an action to give in evidence his own declarations to a third party.</p>

<p>Landlord and tenant—Notice to quit—Estoppel.</p> <p>Where plaintiff who had worked land on shares under an agreement entered into April 1, 1880, notified the owner prior to April, 1884, that he would no longer work the premises, and the owner assented thereto and entered into a contract with another to work the premises, of which contract plaintiff had due notice and after notice assented to the same. Held, that plaintiff cannot insist that he was a tenant from year to year entitled to notice to quit.</p>

<p>Appeal from an order of the Erie county court denying a motion to set aside and vacate the order appointing commissioners, and all proceeding had thereunder.</p>

<p>Receiver—Of joint property—When should be appointed.</p> <p>Where one of two persons in whose name the title to real property stands, hut for the benefit of both, is insolvent, and is collecting the rents and profits and expending the same in her own interest, it is a proper case for the appointment of a receiver.</p>

<p>Safe deposit companies—Their liability for property taken from</p> <p>SAFE UNDER A SEARCH WARRANT — DUTY OF OWNER OF PROPERTY —</p> <p>Company not liable for loss or misapplication after service of</p> <p>ATTACHMENTS PLACING PROPERTY IN CUSTODIA LEGIS.</p> <p>The plaintiff, on the 15th of October, 1873, had in a tin box in a safe hired of the defendant, a safe deposit company, money, bonds and other securities of the value of §40,000. On that day this property was taken, against the protest of defendant’s officers, by the police, under a search warrant, in which some of the securities were described, and was placed in the custody of the district attorney. There it roma'ned for eleven months, though attached by the sheriff soon after it was first taken. In this action against the defendant, begun on October 14,1879, for suffering the property to be taken from its possession, held, that defendant was under no obligation to resist the execution of the search warrant; that after the property was delivered into the hands of the officers of the law, the plaintiff should have instituted appropriate proceedings to recover the same into her actual possession; and that the service of the attachments having placed the property in custodia legis, the defendant is not responsible for its loss or misappropriation.</p>

The plaintiff was on the limits, having been arrested on a body execution on a judgment for costs. The attorney for the judgment creditor signed an order for his discharge. Thereafter the sheriff again took him into custody, claiming that only the judgment creditor could sign the discharge. In this action for false arrest plaintiff recovered damages. The sheriff appealed.

<p>1. Attorney’s lien—Code op civil procedure, § 66—Extent op.</p> <p>Since the amendment of section 66 of the Code of Civil Procedure, passed in 1879, every attorney or counsellor, has, from the commencement of an action, or the service of an answer, containing a counter claim, a lien upon his client’s cause of action or counter claim which attaches to-a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof, in whosesoever hands they may come, and which cannot he affected hy any settlement between the parties before or after judgment; and such lien, extends to the whole of the compensation to which he is entitled for his services, whatever that may he.</p> <p>2. Same—Attorney has a lien in every action.</p> <p>Nor does section 66 apply only to actions on contract. It gives a lien in every action; and this being so, the rule that a personal cause of action founded upon a tort is not assignable, can no longer be invoked to defeat the legitimate claims of an attorney lor which he has a lien.</p> <p>3. Same—To what extent attorney may make a claim which will be</p> <p>upheld.</p> <p>Under section 66. the extent of the compensation of an attorney for his services is governed by the agreement existing between him and the client, which may be either express or implied. But the courts exercise a strict supervision over such contracts, and the burden is upon the attorney to show hy extrinsic evidence that all was fair and just, and that the client acted understandingly. But where an attorney does show that all was fair and just, and that the client acted understandingly, the contract will be upheld and enforced, although by it the attorney’s compensation may have been made contingent upon success, and payable out of the proceeds of the litigation.</p> <p>4. Same—Champerty and maintenance—When statute not violated.</p> <p>An attorney may now not only agree with his client that his compensation shall he contingent upon his success and payable out of the proceeds of the litigation, but he may also, without violating the statute relating to champerty and maintenance agree to assume all costs and expenses of the litigation, and indemniiy Ills client against them, as long as he did not, by the promise of such an agreement, or by the agreement, stir up the strife or induce the litigation.</p> <p>5. Same—Agreement as to compensation—When an attorney will</p> <p>be protected to the pull extent op his rights.</p> <p>Wherein action brought hy plaintiff to recover damages for personal injury in consequence of having been run over by a car of defendant, it was agreed between T. and the plaintiff and the attorney in whose place and stead T. had been substituted, that his compensation for his services in the action should be fixed at the sum of $5,000, which was one-half of the verdict rendered, and in addition he should have the whole of the costs and interests, and T. gave notice to the defendant and its attorneys that he. had a lien upon the judgment to the extent of one-half thereof, besides the costs, and warning them against any settlement or compromise without his knowledge or consent; and plaintiff afterward, in consideration of $3,500 paid to him, executed and delivered to defendant, without the knowledge or consent of T., a satisfaction piece of the judgment. On motion to vacate such satisfaction, Held, that the agreement was not an unfair one, and the attorney should be protected to the full extent of his rights in the premises.</p> <p>6. Same—How such rights to be enforced.</p> <p>The amendment to section 66 of Code of Civil Procedure, passed in 1879, though giving a more extensive lien, provided no new remedy for the enforcement of the lien. In order to enforce it, therefore, in the case of a settlement before final judgment, the attorney while he need no longer prove fraud or collusion, must go on with the litigation until final judgment, as under the former practice. The defendant cannot - be compelled to pay by a mere order.</p>

<p>1. Summary proceedings—Unauthorized appearance oe attorney—</p> <p>Undertaking—Code oe Civil Procedure, § 620.</p> <p>In an action brought by P, against G, and another, judgment was entered against G., no summons or complaint having been served upon her and no one having been authorized to appear as her attorney. An attorney appeared without her authority and judgment was entered as upon . a default in answering. On this judgment execution was issued and premises belonging to G. were sold, P. becoming the purchaser. One L. having obtained a judgment against G. took an assignment of the judgment lrorn P. and redeemed the premises before mentioned, receiving a sheriff’s deed. Thereafter he brought summary proceedings to eject G., and G. brought this action to restrain such proceedings. Meld, that the proceedings that G. seeks to restrain are not proceedings upon a judgment for a sum of money and that an undertaking complying with the provisions of section 620 of the Code of Civil Procedure was sufficient.</p> <p>2. Injunction—Code Civil Procedure, § 2265.</p> <p>A court of equity has power to grant an injunction before a final order obtained in summary proceedings. This power may be implied from . section 2265 of the Code of Civil Procedure.</p> <p>3. Same.</p> <p>The plaintiff in this action can show that the appearance for her in the former action was unauthorized and void.</p>

Demurrer by defendant to the complaint on the ground that the complaint- does not state facts sufficient to constitute a cause of action.

<p>Jurisdiction—Of New York superior court to restrain summary</p> <p>PROCEEDINGS BEFORE A JUSTICE—LEASE—WHEN A CHATTEL REAL—</p> <p>Code of Civ. Pro., §§ 1430 to 1478—When period of redemption does not apply.</p> <p>On the facts of this case: Held, that the superior court as a court of equity has power to restrain summary proceedings before a justice. That the lease of Henry Prouse Cooper being for ten years, was a chattel real; that the lien under the judgment recovered in 1883 attached and the lease was properly sold thereunder; that the sheriff’s certificate of sale was sufficient to give the purchaser title; that though sold as a chattel real, the lease having at the time of sale less than three years to run, the period of redemption did not apply, and sections 1430 to 1478 Code Civ. Pro. did not apply to such a case; that the court has power to direct the payment of money into court by a tenant.</p>

<p>1. Judgment—Ekhob.</p> <p>Where a judgment charges defendants in their individual capacity, it appearing by the record that plaintiff knew they were acting as agents, held, that the judgment should not stand.</p> <p>2. Evidence—Question oe eact.</p> <p>Whether or not plaintiff was employed as a “special detective” was a question of fact and not a matter of opinion, and all facts relating to such employment should be allowed in evidence.</p>

<p>Judgment—Action on an agreement—Admission—When not reversed.</p> <p>In an action before a justice on an agreement, it was admitted at the outset by defendant’s counsel that “ There is a certain amount due; I do not know the amount. There is the sum of ninety-four dollars to be paid.” Held, on appeal that judgment being rendered for this amount and costs, in view, of the conflicting evidence presented by the return of the justice, there was no reason to overrule it.</p>

<p>1. Negligence—Accident—Evidence.</p> <p>The fact that an accident has occurred which resulted in the loss of life .is not per se evidence of the liability of a defendant who is a factor in the accident.</p> <p>2. Same—Burden of proof.</p> <p>The burden of proof rests upon the plaintiff, and failing to establish his cause of action, the complaint is properly dismissed.</p> <p>3. Same—When a matter of fact.</p> <p>In a case wbere different persons might differ in opinion as to whether an act is or is not negligence, it is a matter of fact to be submitted to the jury (Per Van Hoesen, J., in dissenting opinion.)</p>

<p>Appeal—Evtdeitce—Jttogmemt.</p> <p>Where a judgment is before an appellate court, the question is not whether the trial court has rendered such a decision as the appellate court might render upon the same evidence, but whether there is evidence to sustain the judgment.</p>

<p>1. Appeal—Decision bendbbed on conflicting evidence.</p> <p>Where a case has been decided by a justice upon conflicting testimony the result should not be disturbed on appeal. Where a justice rendered a decision in the defendant’s favor: Beld, that it must be assumed that he believed the defendant’s version of his dealings.</p> <p>3. Peincifal and agent—Dealings with agent—Undisclosed principal.</p> <p>The evidence on defendant’s part showed that while G. showed his card, disclosing that he was plaintiff's salesman, he did so merely as a 'reference as to his responsibility, that he dealt exclusively for himself, that he made no sale, in the strict sense of the word, but offered to supply goods in payment for clothes, that he stated he sold for others besides plaintiff, and owned goods of his own, that defendant did not know the goods came from plaintiff, no hill or invoice coming with them, and that the clothes were made and delivered after the goods were received. Beld, that this was a case in which Gr. appeared to he acting on his own account, and disclosed no principal save himself, and defendant was entirely justified in his dealings with him as such.</p>

<p>James Flynn, for resp’t; M. H. Regensberghen, for app’It.</p>

<p>1. Carrier—Action against for goods damaged—Necessary to prove</p> <p>CONDITION OF WHEN COMMITTED TO HIS CARE.</p> <p>In an action against a carriel- for damages to goods committed to them, in order to show damage by negligence on the part of the defendant, it is necessary that the plaintiff should prove the condition of 1he goods when delivered to the carrier, and if shown io be in good condition at that time, it is incumbent on the defendant to show that their damaged condition when delivered by him was not due to any cause by which he is rendered liable. i</p> <p>2. Same—No presumption as to good condition.</p> <p>There is no presumption that the goods were delivered to the defendant in good condition, nor that they remained in safe hands after their delivery by the defendant.</p>

<p>1. Criminal Law—Practice—Indictment for manslaughter—Penal Code, §§ 193 and 195.</p> <p>An indictment under Penal Code, §§ 193 and 195, which in substance charges that the prisoner by certain culpable negligence, acts and omissions in the construction of certain buildings which he erected in the city of New York, which acts are specified, killed and occasioned the death of one Walters. Held, good.</p> <p>8. Jury—Competency—Opinion from reading newspaper—Challenge ' for bias.</p> <p>Where a person summoned to act as a juror testified that he had read the newspapers about the occurrence in question, but had formed no opinion as to the guilt or innocence of the prisoner; that his mind was free from any impression in regard thereto, or the charge contained in the 1 indictment, but was of the opinion from wíiat he had rend that the catastrophe was the result of culpable negligence on the part of some one, and that- it would require evidence to remove the impression. And another testified that from reading the papers he had formed an opinion as to the guilt or innocence of the defendant Which it would require evidence to remove. But each also' testified that he could, nevertheless, go into the jury hex and render an impartial verdict upon the evidence. Held, that challenges upon the ground of actual bias were properly overruled.</p> <p>3. Evidence—Competency—Experts—Specimens of brick and mortar.</p> <p>It was proper to receive in evidence a piece of brick and mortar taken from the fallen wall of the alleged defective building as confirming the opinion of a witness, and also to enable the jurors the better to understand-and appreciate the difference in effect between the mortar used by the defendant and that properly prepared.</p> <p>4. Same—"Unsafe reports”—Exceptions—Rules as to new trial—</p> <p>Code Crim. Pro., § 542.</p> <p>The rule is that a new trial ought not to he granted, even where an exception to the admission of evidence has been taken, if the evidence admitted could in no respect tend to the defendant’s prejudice (in this case “unsafe reports” of the building department), nor when the party excepting, has by his own course of examination destroyed the force of his objection. See Code Crim. Pro., § 542.</p> <p>5. Same—Photographs admissible.</p> <p>Where the accuracy of a photograph as a faithful representation of the actual scene has been proven, it is admissable in evidence as an appropriate aid to a jury in applying the evidence, whether it relates to persons, things or places.</p> <p>6. Practice—Appeal—What questions can be reviewed—Charge—</p> <p>Exceptions to.</p> <p>Where the record does not show that any exception was taken to alleged errors in the charge, the errors are not open to review. A stipulation made by counsel "that a general exception should give the deferdant the benefit of a particular exception to any part of the charge ” will not avail.</p>

This is a motion by plaintiff to dismiss defendant’s appeal. The action was for damages for personal injuries alleged to have been caused by the negligence of defendants. The case is reported below. 2 N. Y. State Rep., 622. Upon the trial at the circuit the defendant at the close of plaintiff’s case moved to dismiss, which motion was,denied and defendant excepted, and relying upon such exception offered no evidence. The jury found a verdict for plaintiff.

<p>Pleadings—Supplemental answer—When allowed—Code Crv. Pro., § 544.</p> <p>The complaint contained three counts, one on a promissory note made by one B and defendant to plaintiff; to this defendant interposed an answer which was served on April 17, 1886, the action having been commenced on March 8d. A reply to the counter-claim contained in the answer was served on June 2d. On August 6th defendant noticed a motion for leave to serve a supplemental answer, which was argued on August 24th and denied. The proposed supplemental answer in part alleged that in March, 1886, B brought an action in the justice's court against the plaintiff herein, and that the plaintiff did not set up this note as a counter-claim, and that defendant signed the note as surety for B, of which plaintiff had notice at the time. The defendant claims that by a neglect to interpose this note as a counter-claim, plaintiff’s claim thereon became extinguished. And that as the clai n against the principal is extinguished, that against the surety is also. There being no doubt that this answer was offered in good faith, the question involved being important, and no such loches appearing as should prevent the defendant from making what she believed to be a good defepse, it was on appeal ordered that the order of the lower court be reversed and and the defendant allowed to serve her supplemental answer.</p>

<p>1. Witness—What inquiries allowed for the purpose of discredit-ins.</p> <p>It is not competent to inquire into charges and accusations, or even indictments, for the purpose of'discrediting a witness, hutit is competent to inquire of a witness as to his past conduct.</p> <p>3. Same—Incompetent question.</p> <p>Witness was asked, “ Have you ever been sued for assault and battery ? Held, that the question was incompetent, and was not justified by the development of the fact that a recovery was had against him. The inquiry must be to the specific act of the witness, and not as to the success of • litigations against him.</p>

<p>1. Contract to convey land—Statute of frauds—Part performance.</p> <p>Plaintiff and. her sister, since deceased, made a written contract to sell certain land to defendant. Defendant has paid only part of the purchase money, and this action is brought to foreclose the equitable lien of the vendor on the land. The defendant objects that the contract was void because not signed by the vendor. Held, that taking possession by the vendee was a part performance, and that the contract would he enforced in equity; that the tender-of a deed at the trial was sufficient.</p> <p>2. Will—Power to convey given to executrix—Payment to executrix</p> <p>by purchaser.</p> <p>The executrix by the will of the deceased owner had power to convey. Held, that by payment of the purchase money to the plaintiffs within time limited by the contract the defendant would be entitled to a deed of the land.</p>

<p>Reference—Execution—Moneys collected under, in hands of sheriff —May.ee disposed of by court on motion even after reference ordered.</p> <p>One McO , by his attorney B., recovered a judgment; execution was issued. thereon, a levy made, a part of the judgment was collected and passed into the hands of the sheriff. A dispute arose between Meó. and B., the former claiming the money in the sheriff’s hands, and the latter claiming-the same, or some part, by virtue of an assignment to him from McO. McO. moved at special term for an order directing that the sheriff pay to* him instead of B. An order was granted by the court that the money made by the sales he paid to McO. upon his. giving an undertaking with security to B. conditioned, among other things, for the payment to him of “ any sums or claims that he may finally establish against the goods sold by the sheriff." It also provided that the matter he referred to a referee to hear, examine and decide the question in dispute, the amount when fixed by the referee and confirmed by the court, to be a demand for which the sureties are liable. Subsequently, and pending the reference, McO. executed a writing- acknowledging the execution of the former assignment, ratifying it, and reassigning it to B. Thereupon, on application of B., the court terminated trie reference and fixed the amount duo the administratrix of B. In an action by this plaintiff, the successor to B.’s interest, brought against the sureties on McC.’s undertaking to recover the amount fixed, the defendant claimed that the matter should have been determined before the; referee. Nothing is said in the undertaking in regard to the reference. Held, that the controversy being in relation to money and property in the sheriff's hands under the execution, was one which might he decided by the court on motion, that the reference was made only to relieve the court from the taking of testimony, and that the court might vacate the reference and take the matter into its own hands.</p>

<p>1. Negligence—What will constitute—Railroad employees</p> <p>Defendant’s employees in making up a working train, backed it until the rear end of the last car projected over the rail of the A. and S. R. R On starting forward, the last two or three cars not being coupled to the train, remained standing. The plaintiff’s train running ahead of time, in obedience to an order received from the superintendent of the road, and at a rate of speed allowed by the rules of the road, endeavored to stop his train in time to avoid a collision; being unable to do so he jumped from his train just as the crash came. Had he remained he would not have been injured. Held, that the employees of defendant were not running a road in actual operation which necessarily crossed the track of plaintiff’s road, and that they were guilty of negligence.</p> <p>2. Same—Contributory negligence—What will not constitute.</p> <p>Held, that it could not be said, as a matter of law, that the plaintiff was incautious (under the rules of the company), in approaching the crossing. That the plaintiff was not guilty of negligence in jumping from his engine as he did, the act being done under the sense of imminent danger.</p>

Henry Lawrence, testator of plaintiff, was the.owner of a tract of land in the village of Saratoga Springs, through which the Saratoga Lake Railway Co. wished to obtain a right of way. The company prepared and submitted to Lawrence a map showing the route proposed to be followed by them, and the land they desired, and asked for a written proposition from him stating the terms upon which he would give them the right of way.

<p>1. Mortgage—Bill of sale intended as mortgage—-Laws of 1833, chap. 879,-§1.</p> <p>A hill of sale of personal property which by an oral agreement shall be considered as a mortgage if properly filed as provided in Laws of 1833, chapter 379, § 1, entitles the mortgagee to the immunities therein given.</p> <p>3. Same—Authority by mortgagee to sell property need not be filed.</p> <p>An authority from one of two separate mortgagees to another party to dispose of their property and to pay the avails to the other mortgagee, such avails to he applied to the debts for which the bills of sale had been previously given as security need not be filed. Landon, J., dissenting.</p>

<p>Divorce—Evidence as to adultery conflicting—Referee’s findings.</p> <p>In an action for a divorce on the ground of adultery, the defendant . denyed the charge and alleged adultery on the part of the plaintiff, and the issues having been referred to a referee to hear and decide, and a report having been made in favor of the plai. tiff and against the defendant, the report was confirmed and judgment for the plaintiff ordered at a special term against the objection of the defendant that there had been irregularity, fraud and collusion in the proceeding. An appeal having been taken on the ground that the evidence was insufficient to warrant the judgment, Held, that the evidence being conflicting, and a just conclusion depending upon the veracity of the witnesses who, appeared before the referee, there was no reason to reverse the findings of the referee.</p>

<p>Negligence—Master and servant—Accident—Defect in machinery— Negligence on part of servant.</p> <p>Plaintiff was injured while engaged in coupling cars on defendant’s road. It appeared that the bumpers of the two cars which he attempted to couple were not on the same level. In such a case it was customary to use a crooked link, which wou-ld coirect the difficulty arising from such difiere ce in height; such links were on hand on this ocuis.on, but the plaintiff used the straight link instead, trusting in his ability to lift it so as to effect the conne: tian. Not being able to do this, he let go the link, and was coming from between the cars when his hand was smashed between the deadwoods, pieces of wood projecting either side of the bumpers to receive the blow in case the cars should strike together. Held that, assuming the defect in the bumper to be the cause of the accident, yet the plaintiff exposed himself knowingly and negligently to the danger and should not recover.</p>

<p>Motions and orders—Corporation—Order eor the examination of</p> <p>THE ROOKS, ACCOUNTS AND MATERIALS OF.</p> <p>The plaintiff is a trustee and stockholder of the B. I. Co.; he owns nine hundred and ninety-eight shares; the defendant, J. A. B., owned one thousand, and J. L. A. nominally two; the dividends, however, were to be divided equally between plaintiff and J. A. B. Since then J. A. B. has transferred two shares to other parties, and five persons are the trustees. There are but two thousand shares. An order for inspection of books and accounts has been made and affirmed; a further order for the examination of the entire plant and machinery was entered and no appeal taken. Under that order plaintiff acted for a time, but it was alleged by plaintiff that defendants interfered with the execution of said last order, and an order was granted that the defendants show cause why the plaintiff should not have further time, and have the inspection and examination and discovery without hindrance, etc. On the return of this order an order was made which is now appealed from. It extends the time for the examination provided for in the former order and particularizes the mode of making the same, and permits the plaintiff to measure certain materials without the making by defendants of changes therein during such measurnents. Held, That the plaintiff does not stand merely in the position of one who desires to examine an adversary’s books and accounts and to obtain therefrom evidence to aid his litigation; that though the legal title of the books, accounts and materials is in the incorporated company, yet the plaintiff is as largely interested in them as any one, and that in a just and equitable sense it is an examination of his own books, accounts and property he is seeking.</p>

This appeal is from a judgment entered on the report of a referee upon trial. The action was commenced in May, 1885, for the price of eight cords of oak and hickory sticks, called “butts,” alleged to have been sold and delivered to the defendant by the plaintiffs.