Volume 31 — New York State Reporter

<p>Motion for a new trial upon the minutes of the court.</p>

<p>1. Trustee—When entitled to allowance and counsel fee.</p> <p>Plaintiff, with others, was trustee under a deed of trust given by a railroad to secure payment of its bonds. Subsequently plaintiff took a lease of the road by which he assumed payment of the bonded debt, and released it to the Brie Bailway, which also assumed such payment. Default having been made in payment of interest, plaintiff brought actions therefor against the Brie road and its receiver, in which he was successful and which produced a fund for distribution among the bondholders. Held, that such actions were brought for the benefit of the bondholders and not for the purpose of relieving plaintiff from individual liability under the lease to him; that the fund came to him as trustee and in no other capacity; that he was a mere conduit through which the road was placed in the possession of the Brie Company, and that he was entitled to an allowance for expenses and counsel fees.</p> <p>2. Same—Application therefor must be on notice.</p> <p>Application for such allowance should be made on notice to the parties interested in the fund.</p>

<p>Habeas corpus.</p>

<p>Supplementary proceedings—May be maintained within ten years on justice’s judgment—Code Civ. Pro., § 382.</p> <p>Proceedings supplementary to execution may be maintained on a judgment recovered in a justice’s court at any time within ten years after it was rendered. Section 382 of the Code does not apply to such proceedings, but only to an action brought upon such judgment.</p>

<p>Appeals from judgments rendered after trials at special term before the court without a jury.</p>

<p>Civil service—Interpreter op general sessions not within.</p> <p>The right to appoint an interpreter to the general sessions in New York city is vested in the recorder, city judge and judge of that court, and such appointments are not governed by the civil service law.</p>

<p>Assignment eor creditors.</p> <p>Th.e provision of § 2 of chap 466, Laws 1877, as amended by chap. 294, Laws 1888, that an assignment shall specify the kind of business carried on by the debtors and their place of business, is not mandatory, but declaratory, and a failure to comply therewith does not render the assignment void.</p> <p>(Following Taggart v. Sisson, 29 N. Y. State Rep., 424.)</p>

This action is brought to collect, by foreclosure and sale, the amount due upon a land contract given on April 1, 1861, by J. Lee Tinker, plaintiffs’ intestate, to Josiah Andrews, defendant's intestate, and one George Weyand. The amount to be paid was $2,714.25, and it all became payable on or before July, 1865. The plaintiffs admitted some payments and claimed there was a balance due of about $3,000.

<p>Appeal from judgment of the New York superior court, general term, reversing judgment entered upon a verdict in favor of plaintiffs at a trial term.</p>

<p>Appeal by plaintiff from a judgment dismissing the complaint on the merits as to defendant Koch, and directing judgment in his favor.</p> <p>The complaint alleges that defendants were partners, and jointly interested in the construction of two houses in the city of New York; that plaintiff agreed with defendants to do certain work in the .construction of said houses; that he did the work, but that the defendants have only partly paid him therefor.</p> <p>The answer of the defendant Koch denies the allegations of the complaint, and alleges that the contract was made between plaintiff and another defendant, and not with defendant Koch.</p> <p>One Spaulding and defendant Koch entered into an agreement by which the former was to purchase certain lots of a third person and erect two apartment houses thereon, and Koch was to advance certain moneys for their completion. In consideration thereof Spaulding agreed to convey to Koch either of the two houses, or, at the option of Koch, in case the houses were sold at a price satisfactory to both parties, to pay him one-half the net proceeds of the sale, “ it being the intent of the parties to equally divide any profits which may be realized by the sale of said buildings.” Spaulding assigned his interest in the agreement to his wife, who made the contract in question with plaintiff.</p>

<p>1. Lease—Abandonment of premises—Laws 1860, chap. 345.</p> <p>A partially open drain or sewer ran under the floor of the premises rented hy defendant from plaintiff in which to keep a hotel bar. The sewerage of the premises occupied by both parties emptied into the drain, and occasionally overflowrd, causing disagreeable odors. Defendant lived in the vicinity, and must have known the condition of the premises before taking them. Held, that, in the absence of fraud or concealment on the part of plaintiff, the defendant was not justified in abandoning the premises by chap. 345, Laws 1860.</p> <p>2. Same—Eviction.</p> <p>The conduct of the landlord in draining his closets, etc., through this drain was not such as to constitute an eviction.</p> <p>3. Same—Surrender.</p> <p>After plaintiff’s attorney had made a demand for rent and refused a surrender of the key, the defendant took the key to plaintiff, told her he had left the place and wanted to leave the key. She replied that it made no difference whether he or she had it and that he could leave it Held, that under the circumstances this did not constitute a surrender and acceptance.</p> <p>4. Same.</p> <p>The lease provided that upon destruction or damage to the premises rendering them untenantable either party might terminate the lease by giving notice, but for no other cause. Held, that the parties had thereby fixed the cause for which the lease could be terminated and that it could not be terminated for any other cause without plaintiff’s consent.</p>

<p>Appeal—From order substituting new defendant—When cannot be taken by party brought in.</p> <p>Plaintiff having brought an action against Hugh J. Jewett as receiver of the Erie Railway Co. to recover for services, the case was referred and after the evidence was closed it was apparent that Jewett was not liable by reason of the sixty days statute of limitations and plaintiff obtained an order substituting defendant, the purchaser upon the foreclosure of the franchise, etc., of the former company in place of Jewett and the amended summons and complaint was served upon defendant; it answered, and a reference resulted in judgment for plaintiff. Held, that as defendant was not prejudiced by the order of substitution it had no right of appeal from said order.</p> <p>(Follett, Oh. J., Vann and Parker, JJ., dissent.)</p>

<p>Appeal from judgment of the.superior court of' Buffalo, general term, reversing judgment in favor of plaintiffs and ordering •a new trial before another referee.</p>

<p>Appeal from a judgment of the general term of the fifth department, modifying and affirming, without costs, a judgment entered on the report of a referee.</p>

<p>Appeal from a judgment of the superior court of the city of Buffalo, affirming a judgment entered on a Amrdict in favor of the plaintiff.</p>

<p>Appeal from an order of the general term, first department, reversing a judgment entered upon the decision of the special term.</p>