Volume 34 — New York State Reporter

<p>Divorce—Summons—Code Civ. Pro., § 1774.</p> <p>'An endorsement of the words "action for a divorce” on the summons in an action for a separation is a sufficient compliance with the requirements of § 1774 of the Code.</p>

Action brought to restrain defendant from keeping and maintaining an open ditch or excavation upon its premises and to recover damages for overflowing plaintiff’s land, with water. In 1881 defendant constructed its railroad upon a raised embankment fifteen feet high at the crossing of Military road, a highway over which said railroad runs, and continuing thence easterly by graded descent to about three feet at Delaware avenue, which it crosses.

Action to restrain defendant from' keeping and maintaining an open ditch or excavation ion its land and to recover damages for injuries by overflow and damage to rental value of plaintiffs’ land.

<p>Insane persons—Liability oe towns as to, where not paupers—Laws 1874, chap. 446, 114.</p> <p>When an indigent insane person, not a pauper, is sent to the asylum he is not “ chargeable to any town, nor is the town liable for his support,” and the county has no lawful claim to be reimbursed by the towns for the expenses paid'by it for maintaining in the asylums such indigent insane persons committed upon the certificate of the county judge, and who were residents of the town.</p>

<p>Motion by plaintiff to set aside a stipulation as procured by fraud.</p>

<p>Foreclosure—Authority for attorney to appear.</p> <p>A judgment of foreclosure was rendered May, 1852, and a referee appointed to sell in the Merchants’ Exchange, Mew York, but in July, 1867, the judgment not yet having been executed, another referee was appointed in place of the former one who had died, and the place of sale changed to Brooklyn. The only defendant who appeared was Suydam, and the papers were served on his attorneys fifteen years before. Held, that it was not necessary to serve Suydam personally; that as there was no repudiation of the authority of Suydam’s attorneys, and as they had admitted service, such admission would, at least, be prima facie evidence of an authority from Suydam to make it.</p> <p>% Same.</p> <p>The change of the place of sale was net such a material modification of the decree as to affect injuriously the rights of any one.</p> <p>3. Same—Parties.</p> <p>The court, by order, substituted Wing as plaintiff in place of Stephen 0. Jackson, deceased, and vacated a former order which released plaintiff’s father from a bid made in 1869, at the sale under decree in the foreclosure. Held, that the court had jurisdiction to make the orders, as defendant was not in a position to question their validity.</p> <p>4. Same.</p> <p>The decree for the foreclosure and sale of the premises was not outlawed after twenty years, or any number of years. The question as to whether such a decree will be enforced is one for the court to decide upon a consideration of all the facts.</p>

<p>Railroad—Power to acquire land.</p> <p>A railroad does not become the owner of adjacent land by reason of. the construction of its road across a bay over land under water in' front of land along a river bank. The conveyance by the state for such purpose gives no title beyond so much of the land as was needed for their own proper railroad purposes, as against a grant thereafter made by the state, in pursuance of the statute, to the owners of the upland. {Rumsey v. N. 7. & N. M R. R. Go., 114 N. Y„ 423; 23 K Y. State Rep., 928, followed.)</p>

<p>1. Executors and administrators—Accounting—Interest.</p> <p>The accounting executrix was indebted to the decedent at the time of his death, and did not pay such indebtedness to her co-executrix during the latter’s lifetime. Held, that she was chargeable with such indebtedness and with interest thereon.</p> <p>2. Same.</p> <p>The co-executrix, who was the -widow, collected a mortgage and reinvested the proceeds in another mortgage which, on her death, came to the hands of this executrix, who collected the same and appropriated the moneys to her own use. Held, that notwithstanding the rights of the widow to use the proceeds of the mortgage collected by her, the new mortgage was an asset of the estate in the hands of this executrix, and she was chargeable with the sum realized and interest thereon.</p>

The plaintiff agreed to do the carpenter work on nine houses of the defendant for $1,665. It is admitted that defendant was to furnish the material. There was also extra work done to the amount of $94. Deducting the extra work done on defendant’s house, $30, the plaintiff received $1,245.77, leaving a balance due of $513.23.

The alternative writ directed the commissioner of public works to return why he should not be commanded to grant his permit to relator to construct its railroad underground throughout the length of Lafayette place, and why he should not also be commanded to grant his permit for the construction of the same railroad under the streets upon a line described, beginning at City Hall and ending at Forty-fifth street.

<p>1. Railroads—New York City—Laws 1860, chap. 10,</p> <p>Chapter 10, Laws of 1860, prohibiting the building of any railroad “in, upon or along any of the streets or avenues of the city of New York,” covers the case of a railroad which merely crosses the streets of that city. It is not necessary that it should pass along the surface of the street.</p> <p>3. Same—Laws 1850, chap. 140.</p> <p>The general railroad act of 1850 confers no right upon a company incorporated under it to build and operate a road in the city of New York upon which to run express trains of the largest passenger capacity at a speed of fifty miles per hour, crossing the streets upon steel bridges at an elevation, and passing through solid blocks of buildings which occupy the proposed site of the road, through a series of brick arches, etc.</p> <p>3. Same.</p> <p>The object and purpose of the said act was to authorize the organization of railroad companies for building, equipping and operating railroads having some kind of resemblance to those structures which had already been built and where the conditions under which the road should be thereafter constructed and operated would somewhat resemble those already in operation.</p> <p>(Earl, J., dissents.)</p>

<p>Appeal from judgment of the general term of the city court of Brooklyn, affirming judgment in favor of plaintiff.</p>

<p>Bail—Recognizance—Forfeiture.</p> <p>A judgment entered on forfeiture of a recognizance will not be set aside where the certificate of the district attorney does not show that the expenses, if any. incurred in apprehending or recapturing the principal and the costs and expenses of the proceeding to enforce the forfeiture have been paid.</p>

<p>Appeal from judgment entered on decision dismissing the complaint, with costs.</p> <p>Action to compel defendant to remove a certain fence in front of plaintiff’s premises- and a railroad gate across Washington street, Saratoga Springs.</p>

Wilson, and whose title was subject to such mortgages. The surplus moneys, the subject of this controversy, were deposited with the treasurer of Kings county to the credit of the foreclosure action, where they still remain.

On the 9th day of September, 1887, Jacob Yau Orman, late of Ithaca, Tompkins county, being of the age of eighty-seven years, died, leaving him surviving his widow Maria Yan Orman and four daughters and two sons. In October, 1887, Thomas Yan Orman, one of the sons, and a legatee named in the will, presented a petition to the surrogate of that county asking for citations to attend upon the probate of the deceased’s will.

Action brought under § 1861 of the Code to establish the will of Myra Clark Gaines. This action was commenced -November 5, 1886, answers were interposed December 31, 1886, the judgment overruling the demurrers was entered September 3, 1887. Replies were served September 30, 1887. The case was noticed for argument; was adjourned a great number of times. The case was called at the special term on the first Monday of December, 1889.