Volume 33 — New York Supreme Court Reports

<p>Contempt — what is not a resistance to a lawful mandate of a court— Code of Civil Procedure, sees. 8, 9 — When a mandate is issued by a court — As to the right to take a child from a parent who uses such child for illegal purposes, by habeas corpus— Chap. 122 of 1876.</p> <p>The fact that a door-keeper, stationed at the private entrance of a theatre, refused-to allow an officer to enter by that door, for the purpose of arresting, under a warrant, a person then on the stage, and that the door-keeper had been ordered by the manager of the theatre not to allow any but actors and employes to use that entrance, does not render the manager guilty of a contempt, in resisting the mandate of a court, when it appears that such a rule was necessary for the proper management of the theatre, and was made for that purpose, and when it does not appear that he had any notice of the action of the door-keeper on the night in question, or intended in any way to shield the actor or prevent his arrest.</p> <p>To render a person guilty of a contempt under sections 8 and 9 of the Code of Civil Procedure, for resisting “ a lawful mandate of a court of record,” the mandate must have been issued by a court, and not by a justice thereof.</p> <p>When a mandate is to be regarded as issued by the court and when by the justice signing the same, considered.</p> <p>Quiere, as to whether a parent, guardian or other person in the lawful custody of an infant child, although using such child, or permitting it to be used, for purposes prohibited by the act to prevent and punish wrongs to children can be properly regarded as holding the child in illegal confinement or custody within the meaning of section 65 of the habeas corpus act. (2 R. S. [Edm. ed.], 598.)</p>

<p>Judgment — the omission of the middle name of the defendant does not invalidate it — when the legal owner of property wiU be compelled to reimburse one who has paid incumbrances on it to p/'otect his interests. ,</p> <p>The omission of the initial letter of the middle name of a defendant, in the entry and docket of a judgment recovered against him, does not render it invalid or prevent its becoming a lien upon his real estate as against subsequent purchasers from him in good faith.</p> <p>The plaintiff, on February 25,1869, recorded a deed received on February 17, 1869, from the sheriff, in pursuance of a sale made by him of certain real estate belonging to one Thomas A. Hall, which at the time of the recovery of the judgment was incumbered by a mortgage for $6,000 given» by Hall in 1863. The sale was made under a judgment recovered December 6, 1864, and docketed February 4, 1865, by one Dow against Thomas Hall and William H. Clark. After the recovery of the judgment Hall sold the property, and thereafter it passed, by various mesne conveyances, to the defendant, who acquired title thereto On October 21, 1871. In 1866 one Hyde, who then owned the property, paid $500 on the said mortgage, borrowed $5,500 upon a new mortgage, and with the proceeds of the loan paid off the residue of the first mortgage. In January, 1871, one Cottrell,who then owned the property, mortgaged it to a bank for $5,500 and paid off the Hyde mortgages. The bank mortgage still remains unpaid. The property was purchased and the various mortgages given and taken in good faith, and in ignorance of the plaintiff’s rights, the judgment not having been discovered by reason of the fact that the searches were made against Thomas A. Hall only, and not against Thomas Hall-</p> <p>In an action by the plaintiff to recover the possession of the property from the defendant:</p> <p>Held, that the second and third mortgages were, so far as the plaintiff’s rights were concerned, continuations of the first mortgage, and that, as her purchase was subordinate to such first mortgage, the third mortgage was, as against her, a valid and subsisting prior lien upon the property.</p> <p>That the defendant was entitled to be credited with the $500 paid by Mrs. Hyde upon the first mortgage, and the amounts expended for taxes, assessments, water rates and repairs, but should account for the rents received by her from the property.</p>

<p>Appeal from orders made at a Special Term vacating assessments for regulating, grading, etc., One Hundred and Sixteenth street, from Avenue A to Sixth avenue, in the city of New York.</p>

<p>Appeals from orders denying separate motions to vacate and set aside warrants of attachment granted in each of the above cases.</p> <p>The questions involved in both cases are the same. The warrants were granted subsequently to the making, delivery and recording of a general assignment for creditors by and in behalf of the defendant and his co-partner, and were levied upon the property so assigned.</p> <p>The facts stated in the plaintiffs’ affidavit in each case are the same. They allege that the defendants are indebted to them ex conf/ractu, and aver that the defendant Dart and .his co-partner, by the firm name of Swezey & Dart, made the assignment for creditors before referred to; that by such instrument the defendants had “ assigned and disposed of their property with intent to defraud their creditors; ” and that the same is fraudulent and void, because it authorizes the assignee in his discretion to compromise and compound with debtors to the assigned estate and to sell the assigned property on credit.</p> <p>A further ground of attachment aliv/nde the assignment itself, but alleged to render it void, is stated by the plaintiffs to be, that since the assignment was executed and filed the defendant Dart has become the manager of a corporation, and that as such manager he is using a trade-mark which he formerly used in the business of Swezey & Dart.</p>

<p>Removal of a clerk in New York city, by the head of his depa/rtment — he is not entitled to a formal trial — the decision of the head of the department is not remewable on appeal — 1873, chap. 335, see. 28.</p> <p>Under section 28 of the New Fork charter (chap. 335 of 1873), providing that “no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity for explanation,” the head of a department must assign as a cause of removal some dereliction of duty or incapacity to perform the duties of the office, or some delinquency affecting the general character of the officer and his fitness for the office and give him an opportunity for explanation; but the officer is not entitled to demand a formal trial or to require that evidence, either oral or written, should be produced and received either to sustain or disprove the charges made.</p> <p>The statute makes the head of the department the exclusive judge of the sufficiency of the explanation presented, and his decision thereon cannot be reviewed by the courts.</p> <p>Certiorari to the respondent, who is commissioner of public works, to review his action in removing the relator from the office of superintendent of the bureau of repairs and supplies in the department of public works in the city of New York.</p>

<p>Becovery of a judgment by a creditor against his debtor — if fraudulently recovered, it does not bind the oihm'W'editors of such debtor — Bvidence — when it may be shown that a defense pleaded, was not in fact passed upon in another action.</p> <p>One Bain recovered a judgment against a corporation, upon an offer made by its attorney, as provided for in the Code, and thereafter assigned the same to the defendant Miller, who thereafter brought an action thereon against the corporation and procured a judgment therein, sequestrating its property and appointing a receiver. Some two years after Bain recovered his judgment a motion, made in behalf of the corporation to set aside the judgment as fraudulent and collusive, was denied, and in the action brought by Miller, the same fraud and collusion were set up as a defense in the answer served by the corporation.</p> <p>This action was brought by the plaintiff, who had recovered a judgment against the corporation, upon which an execution had been issued and returned unsatisfied, to set aside the judgments so recovered by Bain and Miller, on the ground that they were obtained by fraud and collusion, and that nothing was due from the corporation to Bain, and that Miller took his judgment as a collateral security to an existing claim that he had against Bain, knowing it had I been fraudulently obtained.</p> <p>Held, that the recovery of the former judgments and the denial of the motion to vacate the first one, did not estop the plaintiffs from proving that they were obtained by fraud and collusion.</p> <p>Held, further, that the plaintiffs should have been allowed to prove that the question of fraud and collusion, though set up in the answer, was not in fact litigated or passed upon in the action brought by Miller upon the Bain judgment.</p>

Separate appeals of Eelix Donnelly, Frederic Moeller and William Nelson, Jr., from orders of the surrogate of New York, denying their several petitions to be released from their respective purchases of real estate ordered to be sold to pay the debts of Peter Dolan, deceased.

The defendants, claiming that seven distinct causes of action were set forth in the complaint, demurred to each of them separately, on the ground that it did not state facts sufficient to constitute a cause. of action.

<p>Bankruptcy proceedings— order allowing a plaintiff to continue an action against the bankrupt — effect cf. a subsequent discharge of the bankrupt, upon the order.</p> <p>On September 15, 1869, tbe defendant was adjudged a bankrupt by tbe United States District Court for California, upon bis voluntary petition, filed on tbe eleventh of that month, and an order was then made restraining tbe plaintiff from prosecuting an action commenced by bim against tbe defendant in one of the district courts of that State. On February 25, 1873, tbe plaintiff moved in tbe bankruptcy court for and procured an order reciting that no assets bad come into tbe bands of tbe assignee; that the defendant bad been guilty of laches in prosecuting bis proceeding, no steps having been taken by bim to procure bis discharge, and directing that tbe plaintiff be at liberty to proceed with bis action in 'the same manner as be might have done if no restraining order bad been made, and that if be should obtain judgment therein, be should be at liberty to sue out execution and take any other proceedings thereunder that tbe law and practice of the State court permitted.</p> <p>Tbe plaintiff, having recovered a judgment in 1873, thereafter, in 1876, brought an action in this court upon it, in which tbe defendant appeared and answered. Thereafter, and in March, 1877, tbe defendant procured a discharge in bankruptcy and pleaded tbe same in bis answer to an amended complaint served by tbe plaintiff.</p> <p>Held, that the discharge was to be construed in connection with the order, which still remained in force ; that when so construed there was no inconsistency between them, and that the effect of the order was to except the indebtedness for which this action was brought from the operation of the subsequent discharge.</p>

<p>Petit larceny — is a misdemeanor within section 64 of chapter 2, title 6, of the Code of Criminal Procedure.</p> <p>Petit larceny is a misdemeanor within the meaning of that word as used in section 64 of chapter 2 of title 6 of the Code of Criminal Procedure, conferring upon the Court of Special Sessions of the city and county of New York “jurisdiction to try and determine, according to law, all complaints for misdemeanors. ”</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at circuit, and also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

<p>Insanity — what must be shown to render a person irresponsible for his criminal acts — upon whom the burden of proving the sanity or insanity of the accused rests.</p> <p>Upon the trial of the plaintiff in error for the crime of abduction, the defense being insanity, his counsel requested the court to charge that the true test of criminal responsibility, where the defense of insanity is interposed to an indictment, is whether or not the accused had sufficient reason to know right from wrong, and whether or not he had sufficient power of control to govern his actions. The court charged the first part of the request, but declined to charge the latter portion thereof.</p> <p>Held, no eror; that if the accused had sufficient reason and intelligence to know right from wrong, it was a matter of no moment whatever whether or not he had sufficient power to control or govern his actions.</p> <p>The judge charged the jury that to establish a defense on the ground of insanity, it must be dearly proven that at the time of committing the act, which was the subject of indictment, the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know that he was doing wrong; that if the testimony satisfied them beyond a reasonable doubt of his guilt, and that he was not insane, it would be their duty to convict; and further, that if there was any reasonable doubt arising upon the evidence in the case, and upon nothing else, it would be their duty to give him the benefit of that doubt and acquit him.</p> <p>The prisoner’s counsel requested him to charge that the defendant in a criminal case was not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt upon this point, and that thereupon the burden of proving the sanity falls upon the people. This the judge declined to charge.</p> <p>Held, that in view of the charge already given the judge committed no error in refusing to charge as requested.</p> <p>Writ of Error to the Court of General Sessions for the city and county of New York, to review the trial and conviction of the plaintiff,(in error of the crime of abduction.</p>

Writ of Error to tbe Court of General Sessions of the county of New York, to review a conviction of the prisoner of the offense of obtaining money by false pretenses.

Appeal irom a judgment denying an application for a peremptory writ of mandamus, entered upon an order made upon a hearing had upon the return to an alternative writ. The relator was, on October 22, 1881, the owner of certificates of stock of the Metropolitan Railway Company, issued in June of that jear to other persons, and subsequently purchased by the relator.

Appeals by the executors, and by the same persons as trustees, from two decrees of the surrogate of the county of New York, made upon the settlement of their accounts as executors, and also as trustees, under the will of Elisha Higgs, deceased.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of. the justice before whom the action was tried.</p>

<p>Action,for wrongfully discha/rging water upon another’s lands — the recovery must be limited to the damages sustained prior to the commencement of the action — When a claim must be presented to the Comptroller, unden■ chapter 379 of 1860, before an action lies against the city— Grant of land under water in New York — what restrictions a/re imposed by the ordinances upon the grantee — he is chargeable with knowledge of the limitations imposed upon the power of the officers.</p> <p>In an action brought to recover the damages occasioned by the wrongful acts of one who has discharged water and sewage upon the lands of another, no recovery can be had for damages occasioned by the discharge of the water and sewage upon the land after the commencement of the action.</p> <p>Such damages, when occasioned by the wrongful acts of the city of New York, are within the provisions of chapter 379 of 1860, providing that no action can be maintained' against the city until after the lapse of twenty days from the</p> <p>' time the claim has been presented to the comptroller for adjustment; and in an action brought against the city to recover such damages, the recovery must be limited to the damages occasioned at the time of the presentation of the claim to the comptroller.</p> <p>An ordinance of the city of New York, approved February 22, 1844, relating to the granting of land under water, provided that no such grant should authorize the grantees to construct bulkheads or piers, or make land in conformity thereto, without permission having been first had and obtained from the common council. By chapter 225 of 1845 this ordinance was sanctioned and continued in force.</p> <p>Held, that the passage of the act of 1845 gave to the ordinance the effect of legislative authority.</p> <p>That even if this were not so, yet, as the ordinance was passed under the authority conferred by the city charter, it was obligatory upon all subsequent grantees, and those deriving title from them.</p> <p>That the ordinance abridged the power of the city officials to convey land under water, and prevented a deed from so operating as to confer a title upon the grantee, which would allow him to fill in the land without the consent of the common council, even though no restrictions were contained therein.</p> <p>That the grantee was chargeable with notice of the restriction imposed upon the city officers making the conveyance, and could acquire no greater rights than their authority allowed them to create or convey.</p> <p>That when such a grantee had, without first obtaining the consent of the common council, built a bulkhead'and filled in such lands, he could not recover from the city the damages occasioned by its having discharged water and sewage upon the said land, thereby washing it away and injuring the bulkhead.</p> <p>Duryea v. The Ma/yor (62 N. Y., 592, and 2 Hun, 293) distinguished.</p>

<p>Mechanics’ lien lam — when a lessor is not liable for improvements made by the lessee, as required by the lease— Ohap, 379 of 1875.</p> <p>The defendant Barney leased certain land in the city of New York owned by him to one Salem for the term of fifteen years, Salem agreeing to pay the rent, as provided in the lease, and to build or cause to be built a building thereon, to be worth at least $50,000, Barney agreeing to loan and advance to him, to aid him in so doing, the sum of $25,000, upon its appearing that an amount equal to that to be loaned had been expended in the erection of the building. The lease, which was duly recorded, provided for its renewal upon its expiration, and also declared that in case the tenant failed to perform the covenants and agreements thereof, the term should cease and the buildings, fixtures, etc., should revert to and become absolutely the property and estate of Barney.</p> <p>This action was brought by the plaintiffs, who had, in pursuance of a contract made with Salem, furnished material and performed labor in erecting the building, to enforce as against Barney a mechanics’ lien, filed under chapter 379 of the Laws of 1875.</p> <p>Held, that as the lease was recorded the plaintiffs were chargeable with knowledge of its contents.</p> <p>That the debt had not been created at the instance of Barney, or of his agent, nor had he caused the building to be erected or the improvement to be made within the meaning of the act, and that the plaintiff had acquired no lien upon his interest in the land.</p> <p>That Salem having failed to comply with the terms of the lease and perform his contract, the building, so far as completed, reverted to Barney, free from liability for the plaintiffs’ claim.</p>

Writ of error to the Court of Sessions of tbe CQunty of Steuben to review tbe conviction of tbe plaintiff in error of a violation of the excise law.

<p>Appeal from an order made at the Erie Special Term, dissolving as injunction order.</p>

<p>Appeal from an order of the Lewis Special Term, denying a motion to vacate an order requiring the plaintiff to be examined at the instance of the defendant.</p>

<p>Action against joint debtors — entry of judgment against the one served, only — ifght to proceed against the others— Code, secs. 375, 378 — Waiver of irregularities.</p> <p>In February, 1877, tbe plaintiff brought an action against the defendant Kitchen and one Dorn to recover a debt alleged to be due from them as copartners. Dorn only was served with the summons, and upon his failure' to appear a judgment was entered against him alone which described him as impleaded with Kitchen. In February, 1878, a summons in the form prescribed by. section 375 of the Code of Procedure was issued requiring Kitchen to show cause why he should not be bound by the judgment, accompanied by the affidavit required by section 378. Kitchen having appeared and answered, a’ judgment in the usual form was entered against him upon the trial of the issues raised by his answer. . .</p> <p>Subsequently he moved to vacate the judgment on the ground that the judgment entered against Dorn separately 'did not authorize the proceedings taken, and that the judgment against him, Kitchen, should only have been that he' be bound by the first judgment.</p> <p>Held, that the motion was properly denied; that the plaintiff’s irregularities in practice did not affect the jurisdiction of the court, and had been waived by the failure of Dorn and Kitchen’to take the objections at the proper time.</p>

<p>Partnership — when an agreement therefor is not rendered invalid by reason of its providing for the use in the firm name, of the name of one not in fact a member — 1833, chap. 281.</p> <p>Articles of copartnership entered into between the plaintiff and defendant Hardy, provided that the former should be a secret partner and should employ-one Keefe “ as his agent to act for him and in his place and stead ” in all matters pertaining to the partnership, and that the firm name should be Hardy & Keefe. Business was carried on under this agreement Until the expiration of the term thereby fixed, when Hardy assumed to be the sole owner of the assets and excluded the plaintiff from the business and denied that he had any interest therein.</p> <p>In this action, brought by the plaintiff to compel him to account:</p> <p>Held, that the agreement was not void, as being in violation of chapter 281 of 1838, prohibiting any person from transacting business in the name of a partner not interested in the firm, or using the words “ and company,” unless they represented actual partners, and that the referee erred in dismissing the complaint on that ground.</p> <p>That the object of the act was to prevent individuals engaged in business from obtaining from the public a false credit; that in this case Keefe was liable ás a partner to third persons, and consequently this case was not within the intention of the statute.</p>

<p>Appeal from, the decree of a surrogate — when it is a separate and independent proceeding— Gode of Oiml Procedure, sec. 3847, sub. 11 — Irregularity in a notice of appeal— waiver of.</p> <p>An appeal to the General Term of the Supreme Court from the decree of a surrogate refusing to admit a will to probate, is a separate and independent special proceeding within the meaning of subdivision 11 of section 3347 of the Code of Civil Procedure, which provides that chapters 14 to 20 of that act shall only apply to actions or special proceedings commenced on or after September 1, 1880; and an appeal taken after that date from a decree previously entered is governed and must be regulated by the provisions of the said Code.</p> <p>A failure to specify in a notice of appeal, to .what court the appeal is taken, is a mere irregularity which the respondent waives by appearing, noticing the appeal for argument and putting it on the calendar.</p>

<p>Appeal from an order of the surrogate of the county of Livingston, requiring the appellant to account as executor of the will of Ann Havens, deceased, on the application of the respondent.</p>

<p>Legacy to the attorney who draws a will — he must prove affirmatively the absence of fraud, and undue influence — the probate of a will of personal property is conclusive after one year.</p> <p>Where a legacy is left to the draughtsman of a will, who is at the time and for many years prior thereto has been the legal adviser'of the testator,~it rests upon him to establish affirmatively that the testator acted with full knowledge of all the surrounding circumstances, and to prove that the transaction was free from all fraud or undue influence- on his part.</p> <p>The probate of a will of personal property becomes, after the expiration of one year from -the' time it was admitted to probate, conclusive, and a court of equity has no power in a collateral action to set aside the probate except for fraud in the proceedings in which it was procured.</p> <p>The probate is conclusive as to the disposition therein made of the personal property, notwithstanding the fact that the will relates to both real and personal property.</p>

<p>Proceedings to take lands for a railroad — right of persons interested in them to he made parties —power of the court to impose conditions upon the granting of the appli1 cation to he made pan-ties.</p> <p>Where, after proceedings to acquire title to land for railroad purposes have been commenced other persons apply to be made parties thereto, upon affidavits which, if true, show that they have an interest in the premises and a right to use the same for certain specified purposes, the court cannot require them, as a condition of granting the application, to agree not to question the regularity of the proceedings or the right of the petitioner to maintain them.</p>

<p>Referee — power of, to allow a/mendments to the pleadings upon a trial — Ms action can only be reviewed by appeal— Code of Civil Procedure, sec. 1018.</p> <p>Under section 1018 of the Code’of Civil Procedure a referee has, upon the trial of an issue of fact, the same power to allow amendments to the summons and pleadings as has the court.</p> <p>The court at Special Term has no power, upon a motion, to review the action of a referee in granting an amendment to the pleadings, even though he may have directed the motion to be made and may have made the allowance of the amendment subject to the approval and ratification of the court.</p>

<p>Appeal from a judgment of the County Court of Oneida county, affirming a judgment of a justice of the peace in favor of the plaintiff for $107.82.</p>

The action was brought to recover damages for the publication by the defendant of the following article, which was claimed to be a libel upon the plaintiff: “A Narrow Escape from being Buried Alive.— A well-to-do farmer found stiff and cold by the road-side; he is supposed to have been frozen to death; a coroner takes charge of the case and impannels a jury; the inquest interrupted by a physician, who declares the man to be alive; animation restored. “ About nine o’clock…

<p>Appeal from a judgment, entered on the report of a referee dismissing the complaint.</p> <p>On the 15th of April, 1874, the defendant Wooster Sherman, for the purpose of securing the payment to Charles E. Appleby of the sum of $20,000 and interest, executed to Appleby the bond mentioned and described in the complaint, and as collateral security for the payment thereof Sherman and wife on the same day executed the mortgage mentioned in the complaint. The mortgage was duly recorded. The bond and mortgage- became due on April 1, 1875, and there was unpaid thereon on April 1, 1876, the sum of $6,067.89. On or about September 28, 1875, the defendant Wooster Sherman executed forty bonds of $500 each, payable to bearer on the 1st day of October, 1880, with interest thereon at the rate of seven per cent, payable semiannually, the interest being represented by coupons attached’ to the bonds, and on the same day Sherman and wife for the purpose of securing the payment of the bonds, and as collateral thereto, executed to the defendants John F. Moffett and Grilderoy Lord, as trustees, for the benefit of such persons as might become purchasers of said bonds, a mortgage on the same premises described in the Applebv mortgage, -which contained the same condition as the bonds; and the further condition that if said Sherman should not pay the money secured by the bonds according to the terms thereof, then the said trustees and their successors in office were empowered to sell the mortgaged premises, and out of the moneys arising from such sale to pay the sums of money and interest by said bonds secured to be paid. Previous to the 25th of March, 1876, all of said bonds except fifteen had been sold by Sherman to different purchasers other than the plaintiff for full value, and the same were unpaid April 7, 1880. On March 25, 1876, the plaintiff loaned to Wooster Sherman the sum of $750, and as collateral security thereto received from him two of the fifteen bonds remaining unsold. At the time of the loan it was agreed between Sherman and the plaintiff that in case plaintiff should decide to purchase from Sherman the remaining thirteen of the bonds, together with the two above mentioned, then the loan of $750 should be deducted from -the purchase-price of the fifteen bonds. About the middle of March, 1876, Wooster Sherman employed T. H. Camp, president of the Jefferson County National Bank, to sell for him the bonds which had not been disposed of. On or about March 29, 1876, the plaintiff delivered to Camp, as agent for Sherman, his check on said bank, in which plaintiff had that amount of funds, for $6,375 to pay the balance due for the fifteen bonds before mentioned upon the usurious .agreement that the plaintiff should have the same at a discount of five per cent from the face value thereof, in addition to the seven per cent interest for Ms loan, and that out of the money paid for the bonds Camp should see that said Sherman should pay and discharge of record the mortgage to Charles E. Appleby, before mentioned; also that the bonds should not be delivered until the Appleby mortgage should be so paid and discharged of record. On March 29, 1876, the defendant Moffett delivered the thirteen bonds to Camp as agent for Sherman, to deliver to the plaintiff under the above agreement of sale, with instructions that the Appleby mortgage must be paid out of the proceeds of the sale. On the next day Camp caused the balance unpaid on the Appleby mortgage, to wit, $6,067.89, to be paid by his correspondent bank in New York, and received a satisfaction piece of said mortgage, which he delivered to the defendant Moffett, and the mortgage was discharged of record on April 3, 1876. The check of the plaintiff was not used at the bank, nor charged to Mm until April 1, 1876; but it and the bonds were held by the bank as security for the amount paid to Appleby upon Ms mortgage. On April 1,1876, after the receipt by Camp of the satisfaction piece, Camp charged the plaintiff with his check of $6,375, credited the amount to Sherman and charged Sherman with the amount paid to Appleby. A,.few days after this Camp informed plaintiff that the Appleby mortgage had been paid and discharged, and that the mortgage to secure the bonds was the first lien on the premises, and Camp then delivered to plaintiff the bonds so purchased by him. In, April, 1880, in an action in this court wherein the defendants Moffett and Lord, as trustees, and the plaintiff were plaintiffs, and Wooster Sherman and others were defendants, a judgment was entered in Jefferson county, upon a defense interposed by said Sherman and others, adjudging the thirteen bonds to be usurious and void, and that the plaintiff was not entitled to enforce the payment thereof. This action is brought to revive and foreclose the Appleby mortgage, in favor of the plaintiff, notwithstanding the satisfaction. Judgment has been entered on the report of a referee dismissing the complaint, and the plaintiff appeals to this court.</p>

<p>Assignee for the benefit of creditors — right of a creditor to compel him to account— 1877, chap. 466 ; 1878, chap. 818.</p> <p>Under chapter '466 of 1877, and chapter 818 of 1878, providing for general assignments for the benefit of creditors, the County Court may, upon the application of a creditor, require the assignee to render an account, and this without bringing in all the parties interested in the estate or proceeding to a final settlement. But the order in the first instance should be a citation to show cause, and not an order absolute.</p>

<p>Appeal from a judgment, entered on a trial of this action at the Monroe Special Term.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon the report of a referee in Monroe county. The action was brought to recover the amount of four drafts described in the complaint bearing date in August and September, 1864, drawn by the defendant on one Darius Young, for $16,640.39, payable to the order of one Elisha Boardman, and by him indorsed and transferred to the plaintiff.</p> <p>The defense was the statute of limitations.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in Seneca county, in an action to foreclose a mortgage brought in the name of William C. Gilman.</p> <p>After the joinder of issue herein, Gilman was convicted of the crime of forgery, and made a general assignment (including the mortgage in suit) to Oliver Drake Smith, who, upon a motion made upon notice to the defendant and a petition and affidavits, was by the Special Term duly substituted as plaintiff in the place and stead of Gilman. The order directing the action to be continued in the name of Smith was made January 2, 1878. The issues were referred and upon the trial the plaintiff offered the motion papers and the bond and mortgage in evidence. They were, against the defendant’s objections and exceptions, received. When the plaintiff rested the defendant insisted:</p> <p>First. That the plaintiff had shown no right to recover.</p> <p>Second. That it did not appear that the plaintiff had any title or interest in the bond and mortgage.</p> <p>Third. That there was no allegation in the complaint showing that the plaintiff had any interest in the subject of the action.</p> <p>Fourth. That there was no competent evidence of the plaintiff’s interest in the bond and mortgage described in the complaint.</p> <p>The answer contained only the defense of usury. The referee ordered judgment for plaintiff.</p>

<p>General assignment — requisites of the affidavit to the inventory, by the debtor— Chap. 466 of 1877.</p> <p>Where the inventory required by section 3 of chapter 466 of 1877, to be presented . to the county judge by a debtor who has made a general assignment, is verified by the debtor, the affidavit must be an absolute one that the inventory is in all respects just and true. An affidavit to the effect that the inventory is just and true “ to deponent’s best knowledge, information and belief ” is insufficient.</p> <p>A general assignment rendered void by a failure to file an inventory, as required by section 3 of chapter 466 of 1877, is not rendered valid by the subsequent repeal of the said section.*</p>

<p>Ice — rights of ri/pa/ricm owner in ice forming' in the water over his land — rights of mill owner thet'ein.</p> <p>A mill owner, who has the right to erect a clam and flow the lands of another person for mill purposes only, does not own the ice which forms in the water over the lands of such person, and the latter may take and remove such ice unless he thereby actually and perceptibly injures the mill owner.</p>

<p>Leasing of lands — when the lessor is not responsible for the aets of the lessee— (Opinions of witnesses — when they are admissible.</p> <p>Upon the trial of this action, brought to recover the damages occasioned by the negligent setting of a fire upon lands of the defendant, it appeared that the latter had leased the lands to one Hammond for five years, to be worked on shares; the defendant to furnish half the seed and Hammond the other half, and each to have half the produce. Hammond was to clear as much of the land as he chose to, at certain specified prices. Hammond notified the defendant of his intention to burn a portion of the fallow land, and was told by .him that if it was dry not to burn it so that there was any danger.</p> <p>Held, that the court properly charged the jury, that the defendant was not liable for the damages caused by the setting of the fire by Hammond.</p> <p>Upon the trial witnesses were allowed to testify, in respect to another fire set by the defendant himself upon other land belonging to him, that it was set at a proper time.</p> <p>Held, that the opinion of a witness having experience in such matters was competent.</p>

<p>Trusts in lands — cannot be created by parrol for unincorporated religious societies.</p> <p>The plaintiff and others, some of whom were Universalists and Liberal Christians, and others Baptists, signed a paper by which they agreed to pay certain sums of money to be used in the erection of a house of worship, the paper stating that when erected the house should, when not occupied by the Baptists, “be open for any Christian denomination contributing” to its erection and paying their portion of the incidental expenses. The money was paid to Martin, a clergyman of the Baptist church, who promised the plaintiff and others of the Universalists and Liberal Christians that the building should be open for worship by them when requested; and when not in use by the Baptists. With the money so received, Martin bought a lot, taking the title in his own name, and erected a building which was thereafter used by the Baptists on Sundays, and such other times as they appointed. It was also used by the Universalists from the time of its erection down to the spring of 1880.</p> <p>In 1872, Martin being about to leave the village, conveyed the premises by a warranty deed to Delong and Wright, as trustees of the First Baptist Church of Schenevus, and their successors. No trust was expressed in the deed. There was not, nor has there ever been, any such corporation, nor were Delong and Wright trustees of any legally constituted body. They took the conveyance without paying any consideration and with full knowledge of the rights of the subscribers. The premises are still held by them ¡or persons claiming to be their successors.</p> <p>They having refused to allow the building to be used by any other denomination than the Baptist, the plaintiff brought this action to have them restrained from so closing the house.</p> <p>Held, that the subscribers had acquired no rights in the premises, nor was any valid trust created in their favor which would authorize the court to grant the relief sought.</p>

<p>Appeal from an order made by the County Court of Chemung ' county, refusing to compel an assignee, for the benefit of creditors, to render an account of his proceedings, and refusing to compel him to give additional security as such assignee.</p>

<p>Appeal from an order of the County Court of Albany county, denying a motion for a new trial on affidavits and the minutes of the court, made upon the grounds that two of the jurors who tried the cause were first cousins of the plaintiff and that the verdict was against the weight of the evidence.</p>

<p>County — liability of, for wrongful conversion of trust funds by its county treasurer.</p> <p>One Bristol -while county treasurer of Tompkins county received certain funds with directions to invest them for the benefit of the plaintiff, an infant. He invested the funds and received interest thereon for several years, but finally without authority disposed of the securities and deposited the amount received therefor to his credit in the bank or banks where he kept his accounts, and in which all the moneys he received were commingled, as well.those received for the benefit of the county as those received for immediate investment or to await the further order of the court. He misappropriated the funds, using them for his own benefit and applying funds deposited for one purpose to pay charges against other funds. Upon the expiration of his term of office he paid over to his successor a balance of county moneys in his hands and untruly reported that the plaintiff's money was invested in bonds and mortgages.</p> <p>Held, that the plaintiff could not maintain an action against the county to recover the money belonging to him which had been wrongfully appropriated by the county treasurer.</p> <p>* Backer v. Board, of Supervisors of Schuyler County, distinguished.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

The action was brought upon a joint and several bond executed by the defendants and one Stephanie Barbour, the wife of defendant John L. Barbour, since deceased, to one Jenett M. Clark, dated December 19, 1871, conditioned for the payment of $4,566 and interest in five years from the date thereof. The complaint alleges an assignment of the bond by Jenett M. Clark to one Maria B. Clark, by Maria B. Clark to one William Slocum, and by William Slocum to the plaintiff.

<p>Oily of Hudson — right to establish a ferry — iican authorize a ferry one way only.</p> <p>Under the various acts of the legislature incorporating and conferring rights and privileges upon the city of Hudson and the village of Athens, that city has the exclusive right to establish, license and maintain ferries from such city to the western shore of the river, but has no right to establish, license or maintain a ferry from Athens to the eastern shore, such right belonging exclusively to the village of Athens.</p>

Appeal fróm a judgment in favor of the defendants, entered on the decision of the court after a trial at a Special Term. This action was in the nature of a creditor’s bill, and was brought to set aside the assignment of three life insurance policies made by the defendant Calcina 13.

<p>Appeal by the receiver and by various policyholders from an order of the Special Term passing the accounts of the receiver.</p> <p>The North America Life Insurance Company was put into the hands of a receiver under the act of 1869, chapter 902, upon the application of the Attorney-General, March 8,1877. The receiver, Henry Ii. Pierson, Esq., filed preliminary accounts in April, 1881, which accounts purported to include all transactions of receipts and disbursements down to and including the 31st day of December, 1880. This account claims $1,368,129.16 as the total receipts, and five per cent thereof, to wit, $68,106.11, as the commission due to the receiver to December 31, 1880.</p> <p>In the course of the examination the receiver admitted that the sum of $3,997.12 was improperly added to the receipts and disbursements, and also the further sum of $2,595.11, being premiums received after the company was enjoined from doing business, and which did not fall due until after the receiver was appointed.</p> <p>The Special Term still further reduced this sum by the following amounts: $398,028.30, being the amounts of notes and loans on policies and offsets against the face of the policies upon their maturity; $30,176.51, being deductions from death claims or liabilities reduced from their face values by this amount; $22,513.09, being the amount advanced by the receiver for taxes, on property sold under the foreclosure of mortgages belonging to the special fund in the hands of the superintendent of insurance, and which was repaid by the superintendent to -the receiver.</p> <p>The receiver appealed from the order of the Special Term deducting these amounts, and also from that part of the order which set aside the letter of the superintendent of insurance of April 3, 1878, fixing the receiver’s compensation at five per cent of the assets which might come into his hands, and which also requires the superintendent to fix the per centage anew. The receiver had drawn $33,100, on account of his commissions, out of the fund, and had not charged himself with any interest thereon. Among the funds which came into the hands of the receiver were some $750,000, paid him by the superintendent of the insurance department, being the proceeds of certain securities placed in the superintendent’s hands under chapter 902 of 1869, as collateral security for the payment by the company of its obligations upon a certain class of policies known as registered policies.</p> <p>It was claimed by some of the appellants that the sum found by the court below, to wit, $910,749.10, as being that upon which the receiver’s compensation should be computed, should be further diminished by the amount of the said registered fund; and also that the court erred in directing that the said registered fund should be charged with a pro rata amount of the expenses of' winding up the company. The registered fund does not cover the admitted claims of the registered policies to a greater extent than about fifty-five per cent.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the decision of the court after a trial had at a Special Term.</p>

<p>Appeal from judgment of the St. Lawrence County Court, affirming the judgment of a justice of the peace.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the decision of the court after a trial at a Special Term.</p>

<p>Appeal from an order staying the prosecution of this action until the payment of the defendant’s costs in a former action, brought by the assignor of the plaintiff herein.</p>

One Delmar W. Carr made an assignment for the benefit of his creditors to the plaintiff, January 22, 1880. On the 27th of January, 1880, Perry, Cook & Tower, creditors of Delmar W. Carr, commenced an action against him on contract. ' In that action they obtained an attachment against his property February 12, 1880, on the ground that he had assigned his property with intent to defraud his creditors. And on that day the defendant, the sheriff, attached the goods.

This action was brought to annul an assessment levied upon the plaintiffs’ lands by the defendants, as commissioners for the draining of Birch Creek Swamp, under chapter 888 of 1869, upon the ground that the proceedings of the commissioners and their subsequent assessment were void, by reason of non-compliance by the said defendants, as commissioners, with the statute under which they were appointed, in matters none of which were required to appear of record.

<p>Appeal from so much of an order made at Special Term as denies costs to the plaintiff.</p>

The action was brought upon certain bonds issued by the defendant to aid in the construction of a railroad. In the nrst cause of action set forth in the complaint the facts attending the issue of the bonds and the plaintiffs acquisition thereof were fully stated.

<p>Appeal from portions of a judgment, entered in an action for the foreclosure of a mortgage owned by the plaintiff.</p> <p>The questions brought up for review are, first, the order of sale of the several parcels of the mortgaged premises, and, secondly, the amount of additional allowance that can be awarded to the plaintiff in this action under section 3253 of the Code of Civil Procedure.</p> <p>The plaintiff’s mortgage was made and executed on the 22d day of July, 1858, by Jedediah R. Baldwin, and Henry S. Baldwin, and their wives, who at that time were the owners of the mortgaged premises, to secure the payment of $4,465. Subsequent to the execution of plaintiff’s mortgage, and on the 6th day of October, 1863, the defendants Baldwins conveyed one parcel of said mortgaged premises to Mary Gage, who thereafter conveyed it to the defendant Mary Weeks. On the 25th day of July, 1876, the defendants Jedediah R. Baldwin and Henry S. Baldwin and their wives conveyed by deed a second piece of the mortgaged premises to Joel Nelson, and on the same day said Nelson reconveyed the said premises to the defendant Eliza A. Baldwin, wife of the defendant Henry S. Baldwin. On the 10th day of April, 1877, the said defendants Jedediah R. Baldwin and Henry S, Baldwin conveyed the remaining parcel of the mortgaged premises to Joel Nelson, and on the same day Joel Nelson conveyed the same to the defendants Cornelia .A. Baldwin and Eliza A. Baldwin, wives of tlie defendants Jedediah R. Baldwin and Henry S. Baldwin.</p> <p>January 14, 1878, the defendants Eliza A. Baldwin and Cornelia A. Baldwin executed a mortgage on the last mentioned piece of property to Jedediah R. Baldwin, as general guardian of John C. Yan Loan and Louis Yan Loan, infants and defendants, to secure the payment of $6,000; and they also executed their bond to accompany said mortgage, conditioned for the payment of $6,000 with interest. The court at Special Term ordered that the premises which had been mortgaged by Eliza A. Baldwin and Cornelia A. Baldwin to Jedediah R. Baldwin, as general guardian, on the 14th day of January, 1878, should be sold prior to the sale of the premises which had been conveyed by J. E. and H. S. Baldwin to Joel Nelson on the 25th day of July, 1876, and on the same day conveyed by Joel Nelson to Eliza A. Baldwin. The court ordered that the plaintiff have an extra allowance of five per cent on the amount reported due by the referee.</p>

Appeal by tbe defendants from an order of a Special Term directing that a peremptory mandamus issue, addressed to the defendants, commanding them to reinstate the relator in the position of professor in the Albany Medical College.

Motion by the plaintiff for a new trial on exceptions, ordered to be heard in first instance at the General Term, after a nonsuit at the circuit.

A judgment was recovered in this action against the defendant, November 15, 1869. An execution thereon was placed in the sheriff’s hands in February, 1877. Stays of proceedings were obtained by the defendant until January, 1879, when the sheriff advertised the land for sale under the execution on the eighth of March. The defendant claimed that he had a defense to the judgment, and he commenced an action against the plaintiffs to restrain the collection thereof.

<p>Appeal from a judgment, entered on a trial by tbe court without ■a jury.</p>

<p>Appeal from a judgment in favor of the defendants for costs, entered upon the trial of this action by the court without a jury.</p>

Writ of error to tlie Court of General Sessions of the city and county of New York, to review its judgment upon a demurrer to an indictment.

<p>Appeal from an order of a Special Term beld at chambers, granting tbe application of tbe respondents for a writ of mcmdcwrws requiring tbe inspector of buildings in New York city to submit the application of tbe relators to tbe board of examiners, and if approved by such board, to issue a certificate of approval of said application to tbe relators.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court upon the trial of this action at the circuit.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the trial was had.</p>

<p>Assessment — what is a material error — the cost of paving a portion of a street required to be paved by a raihroad company must be deducted.</p> <p>The failure of the city authorities to compel a railroad company to pave that portion of a street occupied by its tracks, -which it was required to pave and keep in repair by the ordinance granting to it the right to lay its tracks therein, is a material error, and entitles a property’owner whose assessment for paving has been increased, by the addition of the cost of paving that portion of the street so required to be paved by the company, to have such amount deducted from his assessment.</p>

Appeals from orders made at Special Term, setting aside a judgment entered upon the report of a referee and setting aside: the report.

<p>Assessment — void if one item, of work he withdrawn from, competition, though such item amount to less than $1,000.</p> <p>When, in the proposals for bids for constructing a. sewer, a price is fixed for the foundation planks, and no estimate is given of the quantity to he used, an assessment, based upon the contract, is void if the total expenditure exceeded $1,000, even though the total cost of ihe foundation plank was less than that sum.</p>

<p>Svidence — examination of a party before trial — the officer's and directors but not the tenants or agents of a corporation can be examined — Code of Oivil Procedure, tec. 872, as amended by chap. 536 of 1880.</p> <p>Section 872 of tiie Code of Civil Procedure, as amended by chapter 536 of 3880, providing for the examination of the parties to an action before trial, authorizes the examination of the officers and directors of a corporation, when their testimony is1 necessary and material, but does not authorize the examination of its servants, agents or employes.</p>

On January 23, J8J5, the defendant Conrades made and delivered to Harrison Johnston his bond, by which he agreed to pay to said Harrison Johnston the sum of $5,000 and interest. Oonrades being the owner of certain leasehold estate on the west side of Third avenue, between Sixty-fourth and Sixty-fifth streets in the city of New York, on the same date executed and delivered to said Harrison Johnston a mortgage upon said premises to secure the payment of said bond.

Appeal by tbe plaintiff from an order of the Special Term, whereby certain portions of her complaint were stricken out as irrelevant and scandalous.

<p>Appeal from an order made at a Special Term, confirming an assessment made npon a hearing npon the return to a writ of certiorari.</p>

<p>Award — when dll the arbitrators must agree— Code of Oivil Procedure, secs. 2366, 2871, only applicable to submissions made as required by that act.</p> <p>Since the passage.of the Code of Civil Procedure there is no statute in force which empowers a majority of the arbitrators appointed by private persons to make a valid award, unless the submission is in writing, subscribed by the parties and duly acknowledged, or proved and certified as a deed is required to be for the purpose of being recorded.</p> <p>A lease provided positively for two renewals of twenty-one years each at a rent to be agreed upon by the parties. In case they could not agree each was to choose a person to determine the rent, and if they disagreed an umpire was to be chosen by them whose decision was to be final and conclusive. If the lessor refused to grant a third renewal he was to pay to the lessee the value of the buildings to be erected; “which valuation shall be ascertained by three disinterested persons on oath to be chosen as aforesaid.”</p> <p>The lease was not acknowledged or proved or certified as a deed is required to be for the purpose of being recorded.</p> <p>Held', that the three persons must agreé upon the valuation, and that the parties were not bound by an award made by two of them.</p> <p>Case submitted upon an agreed statement of facts without an action.</p> <p>The question submitted related to the validity of a valuation made by two out of three persons appointed by the parties in pursuance of the terms of a lease made in 1818. The appointment of the appraisers was in writing, signed by the parties to this action, but was not acknowledged, proved or certified in like manner as a deed entitled to be recorded. The lease provided, among other things, “ that at the expiration of the term aforesaid the said party of the first part, his executors, administrators or assigns, shall and will grant and execute unto the said party of the second part, his executors, administrators or assigns, a renewal of this lease for the further term of twenty-one years thence ensuing at such annual rent as shall be agreed upon by the said parties, their executors, administrators or assigns, respectively, in quarterly payments; but in the event of their not agreeing upon such rent each party shall choose a disinterested person to ascertain the same, and they shall, in making their award or determination in the said premises, be governed by the rents of other lots of land in the neighborhood most recently leased at that time.</p> <p>“If the arbitrators should differ they shall choose an umpire, whose decision shall be final and conclusive on all parties.</p> <p>* * * * *</p> <p>“And it is further mutually covenanted and agreed by and between the parties aforesaid that at the expiration of the term to be granted by the second renewal of this lease as aforesaid the said party of the first part, his executors, administrators or assigns, shall have the liberty either to grant a third renewal of this lease for the further term of twenty-one years, thence next ensuing, at such annual rent, payable quarterly, as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said brick dwelling-house to be built and erected as aforesaid; which valuation shall be ascertained by three disinterested persons on oath, to be chosen as aforesaid.”</p>

<p>Appeal from an order made at a Special Term, continuing an injunction granted herein.</p>

<p>Appeal from an order denying a motion to set aside a sale of property, made under a judgment of foreclosure entered herein.</p>

Appeal by Charlotte A. Hix from ail order denying a motion for the resettlement of the order made upon the accounting herein, so as to strike out the allowances made in behalf of the respective counsel appearing upon such accounting.

The plaintiffs produced proof of the substituted service of the summons made in due time, pursuant to an order for such service duly granted under section 435 of the Code of Civil Procedure, and contended that such service was equivalent to the publication of. the summons and fully satisfied the requirements of section 638.

This action was brought against the defendant as a stockholder in the New York and Grass Valley Mining Company, for the recovery of a debt of that company to the plaintiff, to the amount of $20,000, on an alleged individual liability of the defendant for the debts of the company. The action was originally tried at the circuit.

Controversy submitted upon an agreed statement of facts. The defendant-refused to complete a contract for the purchase of real estate, claiming that the plaintiff could not convey a good title thereto. The plaintiff’s testator left a will which, after making certain specific bequests and devises, proceeded as follows: “ Sixth.

The question in dispute involved the proper construction of the following clause of the testator’s will: ■ “ Fourth.

The complaint alleged, among other things: “ Fi/rst. That at the city of Brooklyn, Kings county, on or about the 3d day of March, 1880, the defendant offered to sell the plaintiff for sixty-six dollars, to be paid to him by this plaintiff, sixty-six yards of carpet, which said carpet plaintiff warranted and fraudulently represented to be a first-class imported English body Brussels carpet and made of all wool. “ Second.

This action was brought to recover damages for the wrongful detention of personal property. The plaintiff resided in the village of Mount Yernon and engaged the defendants Burr Davis and Franklin T. Davis to take her furniture to the city of New York.

<p>Appeal from ail order denying a motion for a writ of mandamus to compel the board of trustees of the village of New Rochelle to appoint a board of health for that village.</p>

The action was brought to recover damages for entering upon the plaintiff’s lands, and to enjoin. the ’ defendant from entering and restoring a dam and taking ice therefrom. On the 3d November, 1869, James Hogan was the owner of certain premises embracing those covered by a pond, formed by a mill dam, and an adjoining lot of about one-half acre. On that day he conveyed the adjoining lot to J. Howard Asher for the consideration of $1,000.

The defendants’ testator by his will gave and bequeathed unto his wife one-half and to his son the other half of all his property, both real and personal, “ subject to the exceptions hereinafter named,” and then gave and bequeathed “ unto Emerett Johnson (colored girl) her support during her natural life to be paid out of the whole property according to the exceptions above named.” At the time of the making of the will of the testator and at the time of his death the…

The action was brought against the defendants, as assessors, to recover the amount of a tax imposed upon the plaintiff for a dog, which tax the collector had collected under a levy made upon plaintiff’s goods.

Appeal by the defendant from a judgment, entered on the report of a referee. The plaintiff, a real estate broker, brought this action to recover the amount of his commissions for effecting the sale of a house and lot belonging to defendant. The property was placed in plaintiff’s hands for sale some two years prior to the sale. Qn the 7th day of April, 1879, the plaintiff informed the defendant that a Mrs. Ferris would buy the house at $5,000. This offer was declined.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.</p>

12. The claim on which this award was made was for extra work and materials alleged to have been done and furnished by respondent in the erection of a structure, being an exterior wall and foundation, for quarantine purposes, on the west bank in the lower bay of New York, under a contract made in pursuance of chapter 751, Laws of 1866, entitled “An act in relation to quarantine in the port of New York, and providing for the construction of the permanent quarantine…

The action was brought by the City of Brooklyn to recover license fees alleged to be due from the defendant upon twenty vehicles owned and used by him in his business of keeping a livery stable, and which on demand he refused to pay.

The defendant claimed that the inquest was irregular, because at the time it was taken all proceedings on the part of the plaintiff were stayed by her failure to pay the costs and disbursements granted by an order of the General Term upon affirming on appeal an order made at a Special Term.

<p>General assignment — the rights of the assignee axe not affeeted by the subsequent banTm'wptey of the debtor — when machinery in a mill becomes a fixture.</p> <p>Where a debtor has without any intent to defraud his creditors made a general assignment of all his property for their benefit, the rights of the assignee to the property so received are not affected by the subsequent bankruptcy of the debtor, and his discharge under a composition with his creditors made as provided in the bankrupt act.</p> <p>Where the owner of a steam planing and saw mill places machinery in the buildings, to be used therein, and tlie same is either annexed to the realty or to something appurtenant thereto, the machinery becomes a fixture. Such machinery passes to a purchaser at a sale had upon the foreclosure of a mortgage upon the property, where such mortgage by its terms covers “all buildings and improvements thereon situate and being.”</p>

This is an action against stockholders of a manufacturing corporation for the recovery of the amount due on a judgment obtained against the company by the plaintiff for labor and services.

<p>Order of a/rrest — power of a judge out of court, in the first judicial district, tomaJce it — it should not purport to he made in court— Code of Civil Procedure, secs. 770, 550, 551.</p> <p>Under section 770 of the Code of Civil Procedure providing that, in the first judicial district, "a motion which elsewhere must he made in court maybe made to a judge out of court, except for a new trial on the merits,” an order ef arrest may, in that district, be granted, in one of the classes of actions described in subdivision 4 of section 550 of the Code of Civil Procedure, by a judge out of court, although in all the other districts of the State such an order can only be granted by the court.</p> <p>When an order is made by a judge out of court in the first judicial district, under the power conferred upon him by the said section 770, it should not be in form an order of the court, nor should it recite that it was made in court at a Special Term held before the judge who made it.</p>

<p>Judgment — the rate of interest is determined by the law existing at the time of its entry —1879, chap. 538.</p> <p>January 26, 1878, the plaintiff recovered a judgment against the defendant corporation, which, among other things, ordered and adjudged that it should, immediately after the service upon it of a copy thereof, pay to the plaintiff, out of its net earnings, the sum of $53,184.88, together with interest thereon from the entry of said judgment, and also that in ■ case of any failure or omission of the said defendant to pay the said sum and such interest within thirty days after such service of the said judgment, that the plaintiff have execution therefor against - the said defendant. The judgment was affirmed by the General Term and the Court of Appeals.</p> <p>Held, that interest should be computed upon the judgment at the rate of seven per cent per annum, and that the passage of chapter 538 of 1869 did not reduce such rate to six per cent from and after January 1, 1880.</p>

<p>Appeal from an order of the Special Term denying a motion to dismiss an appeal from a final decree, entered in the Surrogate’s Court, admitting the will of Cynthia Hesdra to probate.</p>

<p>Sale with intent to defrcmd, creditors — when a purchaser for full value, who has notice of the vendor1 s fraudulent intent, does not acquire a good title.</p> <p>One Carpenter, being deeply in debt, offered to sell to the plaintiff, to whom he was indebted to the extent of $800, his whole stock of goods for $1,800, the amount of the debt to be applied upon the purchase-price, and the plaintiff agreed to purchase at that price, provided there was sufficient stock when the inventory was taken. The plaintiff took possession, and claimed to have subsequently paid some $700 worth of debts for Carpenter. The stock was inventoried at $1,438.52. The defendant, the sheriff, having thereafter seized and sold the stock as the property of Carpenter, under a judgment recovered against him the plaintiff brought this action to recover the damages thereby sustained. Upon the trial the defendant’s counsel requested the court to charge that a purchaser for full value was not protected in buyingigoods sold to hinder, delay or defraud creditors, if he had notice of the fraudulent intent of the seller. The court refused so to charge, but modified it by adding the words “and participated in such intent.”</p> <p>Held, that the court erred in refusing to charge as requested.</p> <p>Dudley v. Danforth (61 N. Y., 626) criticised and distinguished.</p>

Wbit of Eeeoe to review the judgment of the Court of General Sessions, in and for the city and county of New York, entered upon a verdict convicting the plaintiff in error of a misdemeanor in violating the provisions of chapter 87 of 1881, entitled “An act to forbid the assumption of the title of port warden by persons not duly appointed.” > The plaintiff in error, a resident of the State of New Jersey, was appointed a port warden of the State of New Jersey by the governor…

<p>Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.</p> <p>The facts sufficiently appear in the opinion except that some of the obligors in the bond, mentioned in the opinion, were not trustees of the bank at the time the illegal investments were made, and that a portion of the amount paid under the bond was paid by these subsequent trustees.</p>

The appeal was decided in December, 1880, and tbe decision then made is reported in 20 Hun, .555. In May, 1880, a reargument was. ordered, and thereafter this decision was made. The complaint alleged that the plaintiff was the owner of a lot and building situated in the city of New York. “That the said defendants, on the 10th day of July, 1873, through one G. S. P..

John Hand in 1869 made a contract with the State for dredging and removing deposits from Black Bock harbor, under which he received the contract price, viz., $59,583.

<p>Gity of Rochester — is not responsible for the acts of its boa/rd of health.</p> <p>The charter of the city of Rochester provides that the board of health shall consist of not less .than three nor more than seven persons, of whom the mayor shall be one; that the other members shall be appointed by the common council and hold office during its pleasure. Some of the powers and duties of the board are prescribed by the charter, which also provides that the provisions of the general health act (chap. 324 of 1850, and the acts amendatory thereof) shall, when not in conflict with the charter, be applicable to the board.</p> <p>Held, that as the common council did not have power to control the board in the discharge of its duties, as a portion of them were prescribed by the general statutes of the State, and as the duties of the board did not relate to the exercise of the corporate powers of the city, nor benefit it in its local or special interests, the board should be regarded as the servant and agent of the public and not of the city, and that the city was not responsible for the acts of the board.</p>

<p>Proceedings to take land for railroad purposes — costs may be awarded to anypa/riiy— Oode of Oml Procedure, sec. 3340 — When no tidal fee should be allowed.</p> <p>In proceedings to acquire title to land instituted under tlie general railroad act the court may in its discretion, under section 3340 of the Code of Civil Procedure, award costs to any party at the rates allowed for similar services in an action brought in that court.</p> <p>Upon the presentation of a petition, presented under the said act, commissioners were appointed without opposition and thereafter a hearing was had before them, at which witnesses, subpoenaed by the land owners, were sworn and examined as to the value of the land. Upon the confirmation of the report the court allowed the land owners their witness fees and disbursements, but refused to allow them a trial fee.</p> <p>Reid, that as no issue had been joined, and as no question of fact had been raised or tried, the order of the court was proper and should be affirmed.</p>

<p>Appeal from a decree of tbe Surrogate’s Court of Cayuga county, made in a proceeding taken to require tbe appellant to render, an account of bis proceedings as administrator, etc., and to pay over to tbe respondent her portion of tbe distributive share of tbe estate of her deceased father.</p>

Motion by the plaintiffs for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendants ordered at the circuit.

<p>Appeal from a judgment, entered on a verdict rendered at the Erie Circuit, and also from an order denying the defendant’s motion for a new trial on a case containing exceptions, and upon the ground that the verdict was against the weight of evidence.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.</p>

The action was brought to recover the damages occasioned to the plaintiff by the death of her husband, who was alleged to have been drowned while intoxicated from liquor sold to him by the defendant. The judge charged among other things, as follows: “ There is another principle involved, and that is that there a certain expectation of life, which in case of every man is dependent upon his age. Mr. Davis’ age was twenty-nine years.

<p>Appeal from a judgment in favor of the defendants, entered on tbe report of a referee.</p>

<p>Right of a defendant to home an independent issue, arising between himself and a co-defendant, tried— Gode of Oiml Procedure, sec. 1204.</p> <p>In this action, brought to foreclose a mortgage, the mortgagor and two other persons were made defendants, the complaint alleging that the two latter defendants held prior mortgages upon the premises, the amount due upon which was unknown to the plaintiff, and praying for the usual decree of foreclosure and sale, and that the mortgages of the plaintiffs and ,of the said defendants, respectively, he paid and satisfied out of the avails of the sale according to their respective priorities.</p> <p>Held, that the mortgagor could not in this action serve an answer raising an issue between himself and one of his co-defendants as to the validity of and amount due upon the prior mortgage alleged to be held by such co-defendant.</p>

Townsend and others, as commissioners of police in the Niagara Police District, the possession or control and direction of all lock-ups, station-houses or places of detention in the said village of Niagara Falls in use on the 28th day of Play, 1881.” The police district was created and the board of police organized under chapter 415 of the Laws of 1881.

<p>Supervisor— how compelled to account for his acts as trustee of the gospel and school lot.</p> <p>When the supervisor of a town acting, under section 27 of chapter 179 of 1856, as “trustee of the gospel and school lot” improperly invests and thereby loses moneys belonging to such fund, an action to compel him to account and make good the loss thereby occasioned should be brought by his successor, who should describe himself in the' title of the action as the trustee of the gospel and school lot.</p>

Appeal by the administrators, with the will annexed, of Horace B. Tucker, from an order made at the Onondaga Special Term. The order directed that Denio J. Dewey be appointed “ trustee of the trust estate of Daisy and Lillian Tucker, in the estate of Horace B. Tucker, deceased, and that he be vested with all the powers possessed by Harriet 0.

Motion by the defendant for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a verdict directed for the plaintiffs at the Erie Circuit.

The action was brought by a judgment creditor to redeem certain premises in the town of Alden, in the county of Erie, from a sale had upon the foreclosure of a mortgage. The judgment was against William Witty for $392.76, and was docketed in Erie county January 16, 1873. The mortgage was made by Witty to Truman Tremain, April 10, 1869, and recorded May 29, 1869, and was for $1,000.

The mortgage was given by the Ontario Iron Company, a manufacturing corporation organized under the Law of 1848. The defendants set up that the mortgage was void, because no consent, in writing, of the stockholders of the Ontario Iron Company, to the making of the plaintiff’s mortgage, was ever filed in the clerk’s office of Wayne county, that being the county where the real estate mortgaged was situated.

A. Marsh, a justice of the peace in the city of Syracuse, in a proceeding instituted by Killoran, an apprentice, against Barton, the master, under section 931 of the Code of Criminal Procedure. The Court of Sessions dismissed the appeal upon the return of an order to show cause and Barton appeals from such order to this court.

Controversy submitted under section 1279 of tbe Code of Civil Procedure. On tbe 4th day of May, 1880, Moses Iseman tbe testator died, tben being an inhabitant of tbe town of Columbia, Herkimer county, leaving a last will and testament wbicb was duly admitted to probate by tbe surrogate of Herkimer county on tbe 19tb day of July, 1880.

<p>Ejectment— right of one 'in possession of land under a contract for its purchase, to ■ maintam it. <</p> <p>One in possession of land under a contract for the purchase thereof, is entitled to maintain an action of ejectment against a stranger to the title, who wrongfully enters upon and withholds possession of the same.</p>