Volume 34 — New York Supreme Court Reports

<p>Appeal from an order made at a Special Term, denying tbe motion of a purchaser of lands at a partition sale to be relieved from bis purchase.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on 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>Appeal from an order of the Special Term vacating an assessment.</p> <p>The petitioners claimed that the street was not worked upon the legal grade; that the sidewalks were not of the' width provided by law; that the advertisement for proposals and the contract, contained provisions for doing work for which no estimate of quantities was made.</p>

. Appeal by Hugh F. McLachlin and another from an order of the Special Term denying a motion to revive and continue the action, and also a motion to dismiss the said appeal. The action was brought by John Harrington McLachlin and Daniel McLachlin, the original plaintiffs, residents of Canada, by Magone & Holbrook, their attorneys, in September, 1876, against the defendants to recover the price of lumber alleged to have been sold to them.

<p>Action in the first judicial district — the proceedings in it may he staid, pending appeal, by a judge in any part of the State.</p> <p>A judge out of court in any part of the State may make an order staying all proceedings in an action brought in the first judicial district, during the pend ency of an appeal taken from an order there made denying a motion to change the place of trial.</p>

<p>Appeal from ah order of the Special Term vacating an assessment.</p>

Writ of eeeoe to tbe Court of General Sessions of tbe city and county of New York, to review tbe trial of the plaintiff in error and bis conviction of an attempt to commit burglary in tbe first degree.

<p>Ante-nuptial agreement — when valid — a wife may renounce thereby her right to a/rtiales of personal property given by law to the widow — 2 It. S., 83, sees. 9, 10.</p> <p>In 1864 the respondent entered into an agreement, under seal, with her proposed husband, which, after reciting that he desired to make a fit and proper settlement for her use and benefit, provided that she should retain all the property, both real or personal, which she then had or might thereafter receive, and might dispose of the same during her life or by her will, and, in case of her surviving him, she was to receive $1,500 from his estate “ in consideration of said marriage, and also in lieu of dower, or her rights as widow in his estate;” she agreeing that “she will accept and receive the same in full satisfaction of her dower in his estate, and shall bar her from claiming the same, either in his real or personal estate. ”</p> <p>Held, that the instrument was a good and valid ante-nuptial agreement; that the wife had power to, and by the said agreement did, waive all right to the articles of personal property directed by the Revised Statutes (2 R. S., 83, §§ 9, 10) to be set apart for the widow, in case there is no minor child at the time of the husband’s death. ('flurry v. Ourry, 10 Hun, 366, criticised.)</p>

<p>Appeal from an order, made at Special Term, appointing commissioners to appraise the value of land to be taken by the applicant.</p> <p>It appeared that the strip of land described in the petition was proposed to be taken for the purpose of constructing thereon an embankment for a-railroad without a draw-bridge.</p> <p>The land proposed to be taken is under the waters of the Hudson river, and was granted to the 'owners of the adjoining uplands September 3, 1868, upon the condition that the same should be filled in and a dock erected thereon within five years. If a railroad be constructed thereon, it will stretch across a bay on the west shore of the said river in such a way as will prevent vessels going in and out of the said bay.</p> <p>The Hudson river is navigated by steam and sail boats at the very place where the obstruction of the proposed railroad is proposed to be placed, viz: on the said strip of land described in the petition.</p> <p>The appellants, Elizabeth Walsh and her tenants, have extensive brick yards and docks upon the inner side of the said bay, and ship their brick'to market from them, and receive wood and coal for the same, by both steam and sailing vessels, which are obliged to pass directly over and across the place where the said railroad is proposed to be constructed.</p> <p>The owner and tenants of the lands proposed to be taken put in their answer to the petition, setting up' the above facts, and claiming that the railway company has no right to construct its railroad at the place and upon the land described in the petition, and therefore no right to have commissioners appointed to appraise such lands.</p> <p>The petition on which the order appointing the commissioners was made contained the following: “ That in the construction of its railway the said New York, West Shore and Buffalo Railway Company will construct a draw-bridge on said railway, by which drawbridge free and uninterrupted access may be had from the river to the said docks, and from said docks to the river, with vessels at all times.”</p> <p>After the order was made and the appeal tnerejLrom perfected, an order was made on application of the railroad company and against the opposition and objection of the owner and persons interested, amending the petition by striking ont the words above quoted. From the latter order an appeal was also taken.</p>

<p>National banks — actions against them in State courts need not be brought in the county where they are located.</p> <p>A national bank can be sued in any State courts, having general jurisdiction, in which an individual can be sued for the same cause. It is not necessary to bring the action in the county in which the bank is located.</p>

<p>Statute of frauds — the entire agreement must be contained in the writing.</p> <p>The plaintiff, a resident of Syracuse, was a traveling salesman engaged in the business of selling a certain kind of tin-ware; the defendants manufactured the same kind of ware in Queens county. In January, 1875, the following memorandum was signed by one of the defendants:</p> <p>“ Memorandum.</p> <p>“Iron Clad Can Co., January 9, 1875.</p> <p>“ The understanding with Mr. Drake is as follows: 2,000 dollars for the first year; 2,500 dollars for the second year, sure, and provided the increase sales shall warrant it he is to have $3,000; 3 year in proportion to business as above.</p> <p>“IRON CLAD CAN CO.</p> <p>“H. W. SHEPHERD.”</p> <p>The plaintiff having entered into and continued in the service of the defendants for two years, and being then discharged, brought this action to recover the amount agreed to be paid for his services in the third year.</p> <p>Held, that as the memorandum did not show that the plaintiff was to render personal services to the defendants as a salesman, it did not contain the entire agreement between the parties and was not sufficient to take the case out of the statute of frauds.</p>

Controversy submitted upon an agreed statement of facts. The defendant refused to fulfill a1- contract for the purchase of certain land, on the ground that it was subject to an assessment levied under section 1 of chapter 689 of 1881, which reads as follows: “ The board of supervisors of the county of Kings are hereby authorized and directed to levy on the assessment roll of the town of New Lots, in said county, in and for the year eighteen hundred and eighty-one, on the…

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.</p> <p>. The action was brought to compel the defendant Hegeman, as executor, etc., to pay over to the plaintiff the amount to which he was entitled under the last will and testament of Austin D. Moore, deceased, as the lawful issue of Austin I). Moore, the son of the testator.</p> <p>• The principal question was as to the legitimacy of the plaintiff.</p> <p>Austin D. Moore, the plaintiff’s father, was first married to one Elizabeth Rowe on or about the 21st of November, 1871, and subsequently thereto, and on or about the 8th of November, 1875, the said Elizabeth Rowe obtained, in the City Court of Brooklyn,- an absolute divorce from him for his adultery, the judgment providing that it should not be lawful for him to marry again during her life.</p> <p>Subsequently, and on or about the 9th day of December, 1876, Moore and his divorced wife Elizabeth went through the form óf a marriage ceremony in the city of Brooklyn, but Elizabeth having, on or about June 26, i 877, brought a new action in the City Court for a divorce from him, it was adjudged and determined that, by reason of the prohibition of the statute and of the decree in the farmer divorce suit, the said alleged marriage of December ninth, in the city of Brooklyn, was void and of no effect.</p> <p>On the 17th of November, 1877, Moore was married io Carrie Maynard, the mother of the plaintiff, in the State of New Jersey. At the time Carrie Maynard was under age, and temporarily resided with her sister in the city of Brooklyn, her parents being residents of the State of Indiana. The plaintiff was the only issue of said marriage.</p> <p>It was found and decided by the court, at Special Term, that said marriage in New Jersey was entered into in accordance with the laws of said State, and that the plaintiff was the lawful issue of said Austin D. Moore, and entitled to the share of the estate now in the hands of Hegeman as trustee, etc.</p> <p>To this the defendants except, claiming that the marriage in New Jersey was not lawful, according to a certain clause of a sentence in the Revised Statutes of that State.</p>

. The defendant was incorporated, in pursuance-of chapter 737 of 1873, providing for the creation and formation of water-works com- •' panies in the towns and villages of the State. By section 4 of the act such companies are authorized to lay their water pipes in any of the streets, avenues or public places of the town., .

in the first instance at the General Term, after a verdict in favor of the defendant had been directed at the circuit. This action was brought to recover damages for the death of the plaintiffs intestate, Matthias Wohlfahrt, which was alleged to have been caused by the wrongful act and neglect of the defendant.

Edward Suffern, November 10, 1879, while surrogate of the said county, admitting the will of the late John Hancock to probate. The decree of the surrogate had, prior to the making of this application, been affirmed by the Supreme Court and the Court of Appeals. The opinion of the Supreme Court at General Term is reported in 22 Hun, 39 {sub. nom. Swenarton v. Hancock).

<p>Appeal from an order made at a Special Term, denying a motion for a ma/ndamns.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered under the decision of the court upon the verdict of a jury assessing the damages, 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 to foreclose two. mortgages given by it, one dated May 1, 1880, the other February 19, 1881. The first granted “all of the corporate property of said • party of the first part, both real and personal, now owned or hereafter to be acquired, including,” etc.; a specific parcel of real estate was also described.

Reargument upon an 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. The action was brought to recover the damages sustained by the plaintiff while in the employment of the defendant. The defendant had in his shops a machine used both for punching and shearing.

<p>National bank — its indorsement of a note for a commission — does not affect its righ to collect the note after it has been compelled, to pay it.</p> <p>A. note made by the defendant Burr, and indorsed by the defendant Wells, was delivered to the plaintiff, which indorsed it by its cashier, and procured it to be discounted by an Albany bank, the proceeds, less a charge for the plaintiff’s indorsement of it, being credited to the defendant Burr. The note not being paid at maturity, the plaintiff paid the amount due thereon to,the Albany bank, received from it a transfer of the note, and brought this action upon it.</p> <p>Held,, that the plaintiff was the owner of the note, and entitled to maintain the action.</p> <p>Although the agreement to indorse the note for a compensation and the subsequent indorsement of it in pursuance thereof were unlawful acts, and in excess of the powers of the bank, yet they.did not aifect its title to the note, or its right to enforce the collection thereof.</p>

. Motion to amend the judgment of order of affirmance, entered in this action at a former term. The decision then made is reported in 25 Hun, at page 482.

<p>Costs of an appeal — when to be allowed under the Code of Civil Procedure, though the appeal was taken before it took effect.</p> <p>The costs of an appeal taken from a Justices’ Court before, but heard and decided in the County Court after, the Code of Civil Procedure took effect, must be-allowed and taxed under section 3070 of the Code of Civil Procedure, and not under section 371 of the old Code.</p> <p>Costs in the end will be granted or refused in accordance with the law existing-when the party has the right to costs.</p>

<p>Judgment — should not be docketed until the judgment roll is made up a/nd filed — when an execution issued upon a judgment, docketed before this is done, will be set aside.</p> <p>When a judgment is docketed, upon the decision or order for judgment, without any judgment roll having been made up and filed, the court will set aside an execution thereafter issued upon the judgment docket, unless the defect be cured, and a proper judgment roll be made up within a reasonable time.</p>

Appeal by the New York, Lackawanna and Western Railway Company from an. order confirming the appraisal and report of commissioners appointed to ascertain and determine the compensation to be made for certain real estate of the Junction Canal and Railroad Company, taken by the appellant for its roadway, under the provisions of the general railroad act.

The action was brought by the plaintiffs as judgment creditors of the defendant Randolph upon two judgments, one of $1,087.19, recovered September 17, 1879, and tbe other of $535.71, recovered. October 23, 1879.

Swackhammer, without his consent, but upon the certificate of the commissioner to the county judge that the public interest will be greatly promoted thereby, and the affirmance of said certificate by the county judge and the General Term, pursuant to chapter 773, Laws of 1873. The question presented was whether such an appeal to the county judge could be taken after such action by the commissioner, county judge and General Term.

The will was written upon a printed form or blank consisting of four pages, folded in the middle like ordinary legal cap. The form consisted of a printed heading on the top of the first page, the rest of the first page, the whole of the second and the greater part of the third page being left blank.

<p>Advertisement of an illegal lottery — publication thereof by a newspaper corporation— a stockholder cannot be convicted unless he had knowledge of the publication.</p> <p>The defendant was indicted for publishing in a newspaper called The Sun an advertisement of-an illegal lottery. The Sun was published and printed by a duly organized corporation, the business of which was managed by a board of trustees. The defendant was a stockholder of the corporation, and was employed as its treasurer and purchasing agent, and as the superintendent of its business affairs. Upon the trial he requested the court to charge that he could not be convicted if he had no knowledge or notice that the advertisement was printed by the corporation. The court refused so to charge, and instructed the jury that if the advertisement was published by the corporation of which the defendant was a member, he was the publisher within the meaning of the statute.</p> <p>Held, that this was error ; that he could not be convicted unless it were shown that he actually and personally did the acts which constituted the offense, or that they were done by the corporation with his permission or by his direction.</p>

The plaintiffs recovered a judgment in this action in a Justices’ Court, and upon an appeal taken therefrom to the County Court the jury rendered a verdict in their favor. This verdict was set aside and a new trial was granted. The action was brought to recover a debt due to the plaintiffs from the defendants’ father.

The motion was made by the attorney for the defendant George E. Thompson, to require C. E. Doyle, one of the plaintiff’s attorneys, to deliver such minutes to the said Thompson. The action was brought for the foreclosure of a mortgage. The referee reported in favor of plaintiffs on all the issues, and ordered judgment of foreclosure and sale. The fees for the stenographer’s minutes were included in and taxed as part of the costs.

Lawrence county, dismissing the plaintiffs complaint and granting costs to the defendants. The action was originally brought in a Justices’ Court, where the plaintiff recovered a judgment.

. Appeal from a judgment, entered in favor of the defendant, upon the report of a referee. In October, 1880,: the plaintiff applied to the defendant, in New York, to transport two horses from that city to Ogdensburg. This the defendant, by its special contract, in writing, agreed to do.

<p>Appeal from the appraisal and report of the commissioners appointed herein, and from an order made at a Special Term confirming the same.</p>

Daniel D. Dorman on the 19th of October, 1861, assigned his property, real and personal, to James E. Beller in trust for his ■creditors, among whom the plaintiff .was preferred. The assignee gave the usual bond with sureties, entered into possession.of the assigned property, and paid and discharged in full all of the debts •of the assignor except the debt due to the plaintiff.

The action was brought to set aside two bills of sale made by the plaintiff. The plaintiff was carrying-on in her own name and separate from her husband the millinery business. Held: that after allowing the amount due upon the execution held by the constable, and the amount due on the Browner bill of sale, the plaintiff had a special property in the balance for which she might recover against the defendants Fowler and Lyons, and directed judgment accordingly,

The action was one of ejectment. The plaintiff claimed to be the owner of the premises, described in the complaint, by virtue of a deed dated December 18, 1854, and given by the. judge and treasurer of Ulster county, upon a sale of the lands for non-payment of taxes, under chapter 298, of 1850.

<p>Board of town auditors — cannot allow a claim disallowed by a former board — a taxpayer may restrain the payment of a claim so audited — 1873, chap. 161, as amended by 1879, chap. 526.</p> <p>In November, 1877, one Hyland, who had been a constable of the town of Kingston for the year ending in March, 1877, presented to the board of town auditors a bill against the town for the sum of $527.50. The board allowed. $166.66 of the bill and disallowed the balance, $860.84. In November, 1878, he presented a bill for the $360.84 disallowed by the former board to the new board, which allowed $200 thereof and disallowed the residue.</p> <p>Held, that the jurisdiction of the board of town auditors only extended to the audit and settlement of unaudited and open town charges, and that it had no authority to reopen and decide a case which had been already decided upon its merits by its predecessor.</p> <p>That as its reaudit of the claim was void for want of jurisdiction, a taxpayer of the town was entitled to bring an action under chapter 161 of 1872, as amended by chapter 526 of 1879, against the owner of the claim, the supervisor of the town and the board of supervisors to restrain the payment of the claim.</p> <p>That the payment of a claim might be so restrained when it appeared that there was included in the audit the whole or a portion of an old bill which had been previously presented and disallowed, though the exact amount so included could not be determined.</p>

<p>Taxes upon the Hew York and Oswego Midland Railroad — to what portion thereof the towns are entitled under chapter 296 of 1874 — when an action lies by the town against the county to recover them — such action should he brought in the name of the supervisor of the town.</p> <p>Under chapter 296 of 1874, subjecting the real and personal property of the New York and Oswego Midland Railroad Company to taxation, and appropriating the amount of the county taxes to certain towns, to be applied towards the payment of the interest or principal on certain town bonds, such towns are only entitled to receive the taxes collected for county and town purposes, and not those collected for State purposes.</p> <p>Section 8 of the said act requires the collector to pay over the amount of such county taxes to the railroad commissioners of the town within five days from the time of collecting the same, and section 4 makes the collector and his sureties liable for any failure on his part so to pay over the said moneys.</p> <p>Held, that the remedy thereby given did not prevent the town from maintaining an action against the board of supervisors of the county to recover the amount of such taxes which had been paid to the county treasurer by the 'collector, pursuant to the directions of a warrant delivered to him by the board of supervisors for the collection of the tax.</p> <p>Such an action is properly brought in the name of the supervisor of the town.</p>

The defendants were indicted for selling strong and spirituous liquors, to.be drunlc in a room appertaining to their house or shop, without having obtained a license therefor. The court, on the trial, charged that if any person was seen to drink in such shop, etc., any spirituous liquors, etc., this was prima fade evidence that such spirituous liquors, etc., were sold by the occupant, or his agent, with intent that the same should be so drunk therein.

The action was brought to foreclose a mortgage. The defense was usury. The referee found that the bond and mortgage were executed without consideration and delivered to the mortgagee for the purpose of having them sold for the benefit of the mortgagor, no restrictions being placed upon the power to sell.

The action was brought to recover the taxes imposed by chapter 542 of 1880, upon the defendant, a fire insurance company, which it had neglected and refused to pay.

<p>Taking a mortgage in the name of a third person, to defraud creditors or escape taxation — the validity of the mortgage cannot be attacked by a subsequent incumbrancer.</p> <p>This action was brought to foreclose a mortgage given by one Wood to Charles F. Nichols as collateral to a bond for $7,000, which bond provided that the money was to be received by him in trust for Elizabeth B. Nichols, Mary E. Ball and George C. Nichols. Two thousand seven hundred dollars of the $7,000 belonged to Elizabeth, $8,800 to Mary and $1,000 to George.</p> <p>The bond and mortgage were taken in the name of Charles because Elizabeth and Mary were unwilling to have it taken in the name of George (as he was a stockholder in a company and liable as such on certain of its guarantees), and in order to protect the property of the three persons from any contingent liabilities thereon. Another reason for so taking it was the unwillingness of George C. to have his name appear lest it might subject him to a taxation which he considered unjust. The mortgagor made no defense. A subsequent incumbrancer, by attachment and judgment against the mortgagor, claimed that the mortgage was void because it was intended to hinder, delay and defraud the creditors of George, and for the reason that it was against public policy, as being an attempt to escape taxation.</p> <p>Held, that neither of these defenses could be set up by a subsequent incumbrancer after the mortgagor had waived them by making a default.</p> <p>Qiuere, as to whether even the mortgagor could have availed himself of them.</p>

The action was brought against the sheriff to recover damages for a false return. It appeared that on the 9th day of August, 1876, the defendant, as sheriff, levied upon and took possession of the stock of goods of Case & Downes, as copartners, of the value of $2,000, by virtue of two executions issued ■ upon two judgments recovered by the plaintiff’s intestate against the said firm, and duly advertised the same for sale thereunder.

The sheriff’s charges were as follows: Compensation or poundage.......................... $123 13 Levy and return fee................................ .2 69 Serving six copies of attachment...................... 12 00 Deputy’s compensation.............................. 25 00 $162 82

<p>Bight to serve an amended pleading — not waived by noticing the issue joined for trial.</p> <p>A plaintiff, by noticing for trial an issue of law raised by the service of a demurrer to the complaint, does iy&t waive his right to serve an amended complaint within the time allowed by law.</p> <p>Philips v. Buy dam (6 Abb. [N. S.], 289) overruled).</p>

<p>Appeal from an order made at Special Term, denying a motion to vacate an attachment.</p>

Harrison as defendant in place of tbe mayor, etc., tbe present defendant, and requiring the plaintiff to interplead him as defendant in this action, and allowing tbe mayor, etc., to pay to tbe chamberlain of tbe city, to tbe credit of this action, tbe sum of money in dispute. Charles W. Dayton, for tbe appellant'.

<p>Appeal from an order made at a Special Term vacating an attachment.</p>

<p>Appeal from an order made at Spécial Term denying a motion made for leave to revive and extend tbis action, so as to make tbe devisees of Theodore Martine, deceased, defendants therein.</p>

<p> Power of the court to allow pm'ties, interested in the event of an action, to intervene. </p> <p>The plaintiff claiming to be the widow of one James Tilby, deceased, presented his will for probate before the surrogate. That application was opposed by the heirs-at-law of James Tilby, upon the ground that the plaintiff was not the widow of the deceased, for the reason that she was the wife of Hayes, the defendant in this action, at the time of the alleged marriage with Tilby. Prior to Tilby’s death the plaintiff had brought this action against the defendant, Hayes, to procure a judgment declaring a marriage, formally solemnized, between them, null and void, because of his fraud, and had procured therein a report of the referee in her favor.</p> <p>Held, that it was proper for the court, upon the application of the contestants, to send this action back to the referee, and allow them to produce and examine witnesses, and cross-examine the plaintiff and the other witnesses already examined.</p> <p>That if the plaintiff so desired she might have the said contestants made parties defendant to this action.</p>

The infant had a general guardian who joined in the petition .asking for leave to sell.- The proceeds of the sale amounted to $2Y,000. Twelve thousand dollars thereof was paid over in cash .and the balance was secured by bond and mortgage running to the special guardian.

<p>Divorce — the judgment of a foreign court, when void as to a citizen of this State— when new documentary evidence cannot be brought, in the first instance, before the a/pyellate court.</p> <p>A court of another State cannot adjudge to be dissolved and at an end a matrimonial relation of a citizen of this State, who is domiciled and actually abiding here throughout the pendency of the judicial proceedings in such other State, when he has not personally appeared therein, and when process was not personally served upon him there, or actual notice of the proceeding given to him.</p> <p>The appellant was convicted of bigamy, by reason of the court below holding that a judgment of divorce procured by him, from a former wife, in another State, was valid. Upon an appeal brought by him the appellate court held that the judgment was void.</p> <p>The district attorney, in order to sustain the conviction, sought to produce upon the argument, a decree of divorce procured in this State by the said wife against the accused."</p> <p>Held, that this could not be done.</p>

<p>Public officer — right of, to recom' his salary for time during which, by reason of his being imprisoned, he has been prerented from discharging the duties of his office.</p> <p>On June 13, 1879, the relator, who was then a member of the police force of the city of New York, was placed under arrest by order of his superior officer, and committed to the city prison, on a charge of burglary. He remained in prison until January 17, 1880, when he was tried and acquitted in the Court of General Sessions. On the day of his acquittal he reported for duty, and on the twenty-fourth of January, he was_ tried before the board of police commissioners and dismissed from the force.</p> <p>Held, that he was entitled to recover his salary for the time during which he was confined in the prison. (Davis P. J., dissenting.)</p> <p>People ex rel. Bycin v. The Board of Police (MS. Ct. of App.) followed.</p>

<p>Appeal from an order made at a Special Term, denying a motion to vacate an order of arrest.</p>

<p>Appeal from an order made at a Special Term, denying a motion-to vacate an attachment.</p>

<p>Costs — when an executor or administrator cannot be required to give secwiiy for — Code of Civil Procedure, sec. 8271.</p> <p>Section 3271 of the Code of Civil Procedure authorizing the court, in its discretion, to require an executor or administrator to give security for costs, only applies to actions originally brought by or against an executor or administrator, and not to an action originally brought by the deceased, and simply revived in favor of his personal representatives.</p>

Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error upon an indictment.

<p>Will hy which a testator devises a house to his wife {who then has the title) directing payment of a mortgage "provided the title is in me” — construction of it.</p> <p>The will of the plaintiff’s testator, which was executed on the 27th day of February, 1877, contained the following clause: ‘.‘I devise the house and lot No. thirty (30) West Seventeenth street, in the city of New York, to my beloved wife Frances Sutherland Clark, her heirs and assigns forever, and I authorize my executors to pay off any mortgage or other incumbrances there may be on said house and lot, at my death, provided the title is in me. ” In February, 1874, the testator had purchased the hojise in the name of his wife, and caused it to be conveyed to her. Fifteen thousand dollars was paid in cash, and the property was taken subject to a mortgage for $20,000. The wife continued to .own the house, and the same was used as a family residence until the testator’s death, in February, 1880. The testator paid the interest upon the mortgage and $5,000 o.f the principal, and in April, 1879, gave his personal guaranty for the payment of the balance, with interest thereon at six per cent.</p> <p>Held, that it was the intention of the testator that the' executors should pay off the mortgage upon the house, if the title thereto was, at the time of his death, in either himself or his wife.</p> <p>That the words “ provided the title is in me ” were intended to qualify the devise of the house to his wife and not to affect the obligation of the executors to pay the mortgage thereon.</p>

Writ of error .to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error for an assault with intent to kill.

<p>Clerk in ike finance department, New York city — lie may be removed, if his swmces core no longer requwed by the business of the department — 1873, chap. 335, sec. 28.</p> <p>A person employed as a regular clerk in the bureau of the commissioner of taxes in the finance department of the city of New York, may be removed by the comptroller if, by reason of a diminution in the business of the department, his services are no longer required.</p> <p>Semble, that in such a case the clerk is not entitled to the prior notice and opportunity to be heard provided for by section 28 of the charter. (Chap. 335 of 1873.)</p>

<p>Appeal from a judgment, entered upon the trial of this action by the court without a jury, refusing a decree of specific performance.</p>

<p>Divm'ce— the adultery of the husband, connived at by the wife, does not prevent him from getting a divorce for her adultm'y.</p> <p>Upon, the trial of an action brought by a wife to procure a divorce from her husband, on the ground of his adultery, it appeared that he had committed the adultery with her connivance and consent. The defendant alleged in his answer and proved upon the trial that his wife had committed adultery once before and once after the time at which he had committed it; and that he had not connived at or consented to her so doing, nor had he condoned her offense.</p> <p>Held, that her connivance at his adultery prevented her from using it as a defense, and that he was entitled to an absolute divorce.</p>

Appeal by the attorney, Albert Mincho, from an order requiring him to pay over the sum of $1,460, besides the costs and expenses of the proceedings.

<p>Appeal from an order made at Special Term confirming the report of a referee, which awarded the sum of $5,000 each to the three commissioners appointed, under chapter 604 of 1874, to appraise and apportion the damages occasioned by the opening of Spuyten Duyvil parkway, which is about" 13,000 feet long and from 40 to 400 feet wide, and includes in it fourteen parks.</p>

The action was brought by the plaintiff, one of the trustees of the defendant corporation, against it and his co-trustees. The complaint alleged that the company had become insolvent by reason of the mismanagement and the wrongful acts of the defendant trustees, and it prayed that they might be compelled to account and to pay over to the company any money or property which they might have acquired for it, or which had been lost or wasted by their wrongful and negligent acts.

<p>Evidence — the attempt of a party to bribe a witness may be shown — A witness to general reputation cannot be ashed, what he Tíos heard nor to repeat stories he has heard — When specific acts of lewdness committed by the plaintiff may be shown in an action for an indecent assault — when such acts may be shown, even though they occurred after the assault.</p> <p>A party may always show that the opposite party has offered a witness a bribe to induce him to swear falsely.</p> <p>Upon the trial of an action brought to recover damages for an assault with intent to ravish, the defendant called a witness who testified that according to the speech of people the reputation of the plaintiff was not good. Being asked upon cross-examination what persons he had heard speak about the plaintiff, he named her father as one. Upon his redirect-examination the court, upon the plaintiff’s objecting, refused to allow the defendant’s counsel to ask the witness what he had heard the plaintiff’s father say.</p> <p>Held, no error.</p> <p>Another impeaching witness called by the defendant testified, on his cross-examination, that he had heard certain stories about the plaintiff.</p> <p>Held, that the court properly refused to allow the defendant’s counsel to ask what those stories were.</p> <p>In an action by a female for an indecent assault, the injury to her feelings being an element of damages for which she is entitled to compensation, specific acts of lewdness on her part with men other than the defendant may be shown in mitigation of damages although not pleaded.</p> <p>U. seems, that such lewd acts may be shown, though they occurred after the assault, if they followed it so closely in point of time, as that they might properly be considered by the jury in determining the state of the plaintiff’s “moral sensibilities ” at the tim’e of the assault and the extent to which they were likely to he injured by it.</p>

<p>Evidence — when the testimony of witnesses that they did not hear a signal is not to he considered as against afvrmativ eevidence that it was given.</p> <p>Where, in an action to recover the damages occasioned by the alleged negligent killing of the plaintiff’s intestate by the defendant, a railroad company, the only negligence alleged is the failure of those.in charge of the train by which the intestate was struck to ring the bell or blow the whistle on approaching a crossing, it is the duty of the court to charge that, as against the affirmative evidence of credible witnesses that the bell was rung, or the whistle blown, the evidence of witnesses who were not listening for signals, and who gave no attention to the matter, that they did not hear the bell or the whistle, should not be considered.</p> <p>(iGulhane v. N. T. G. and H. B. B. B. Go., 60 N. Y„ 138, 137, followed.) .</p>

<p>Appeal from a judgment, entered upon a decision of the Lewis Special Term, on certiorari, reversing a final order of a justice of the peace in summary proceedings, and awarding restitution.</p> <p>The appellant Loomis leased a paper mill to the firm of Kingston & Co. at a rent of two dollars and fifty cents per ton for all paper made. Loomis was to pay the expense of putting the machinery and apparatus in running order. The lessees were to run it long enough to pay by the rent the amount expended by Loomis for repairs, and were then to be at liberty to terminate the lease, or, at their option, to continue the same for the term of three years from the time they should commence running.</p>

. Appeal from, a judgment in favor of the plaintiffs, entered on a decision of a justice of this court in a case tried, at the Monroe Special Term.

- This action -was brought against the executors of the will of Russell F. ITicks, deceased, and the trustee appointed by said will, to have a legacy of $5,000 given by said will to A. Hammond Hicks, the plaintiffs assignor, declared a lien on the lands devised by said will to said trustee, and paid out of the proceeds thereof.

<p>Corporation — action by a stockholder against it — when its refusal to bring an action need not be alleged.</p> <p>The plaintiff, a stockholder in the defendant corporation, brought this action against the corporation and its president. The complaint alleged that the plaintiff had been at the time the grievances complained of were committed, and still was, a stockholder, and that the action was brought in behalf of himself and of such other stockholders as were willing to unite, etc. It also alleged that the company- and its president had converted and misapplied corporate moneys and refused to account for the same, and that it withheld dividends due to the plaintiff and kept false books of account. The relief demanded was that the defendants be compelled to account and pay over to the plaintiff his share of the moneys which ought to have been divided among the stockholders.</p> <p>Held, on an appeal from an order overruling a demurrer interposed by the corporation to the complaint, that the complaint stated a cause of action as against the defendant corporation, although it did not allege that it had refused to bring an action upon being requested so'to do.</p>

<p>Medical college — it cannot be formed under chapter 319 ‘ of 1848, as explained by chapter 51 of 1870 — what educational institutions may be formed under these acts.</p> <p>Chapter 319 of 1848, providing for the incorporation of benevolent, charitable, scientific and missionary societies, as explained by the declaratory act of 1870 (chap. 51), does not provide for or authorize the incorporation of medical colleges, to give instruction in the art of medicine and surgery for a compensation to be received by them, and to issue and grant diplomas to graduates. Only such educational institutions can be formed under the said acts as are connected with or controlled by some Christian church or association.</p>

<p>Promissory note — ' the signing of it by a holder is not a material alteration — Extension of time — to discharge a surety it must be founded upon a good (not a usurious), consideration — Requisites of a notice by the surety requiring a creditor to enforce payment from the debtm'.</p> <p>The signing of a promissory note by an owner thereof at the end and before the signatures of the makers, without their knowledge or consent, is not a material alteration of the note and doesé not render it invalid as to those who had previously executed it.</p> <p>0happell v. Spencer (23 Barb., 584)and McVean v. Scott (46 id., 379) not followed.</p> <p>An agreement to extend the time of payment of a debt, if made in consideration of the payment of a usurious bonus is void, and does not operate to discharge the debtor’s sureties.</p> <p>In order that the failure of a creditor to enforce the payment of a debt, when requested by one who is liable as a surety therefor, shall operate to discharge the latter, the notice given to the creditor must be clear and explicit, and he must be given to understand that he is required to take proceedings in the courts to collect the debt.</p>

<p>Appeal from an order of the Onondaga Special Term, denying a motion to vacate a warrant of attachment.</p>

<p>Sale of seed — duty of the purchaser to examine it — measure of damages if clover seed he mixed with seed of plantain — how damages to land ma/y he proved.</p> <p>The plaintiff applied to one of the defendants who kept a seed store, to purchase some clover seed. He told him he wanted good clean seed; that he could not see for himself as he had left his glasses at home and that he would have to leave it to the defendant to put it up. The defendant said that they always examined their seed before buying it, with a microscope; that they would not have bad seed in their store, and added, “leave it to me and I will put up pure clover seed.” The plaintiff took the seed home mixed it, without making any examination of it, with some timothy seed worth about three dollars a bushel and sowed the mixture upon his farm. While he was sowing it one of his neighbors examined the seed, discovered it contained plantain seed and called the plaintiff’s attention to that fact The plaintiff sowed about one acre more and then stopped. This action was brought by him to recover the damages occasioned by the presence of the plantain seed.</p> <p>Held, that it was his duty to have examined the seed when he reached home, and that if by a fair examination he could then have discovered the plaintain seed he was not entitled to recover.</p> <p>That, if entitled to recover, the measure of damages was the difference between the value of pure clover seed and that of the seed actually sown, together with the difference between the value of the farm before the sowing of the plantain seed and its value after it had been sown.</p> <p>That the value of the timothy seed with which it was mixed could not be recovered.</p> <p>That in determining the damages sustained to the land it was competent to show the extent, to which the weed had grown upon it, the expense and labor, together with the difficulty of removing and killing it, and the extent to which it would interfere with the growth and production of crops.</p>

<p>Appeal from a judgment, entered in Onondaga county, upon the repott of a referee.dismissing the plaintiffs’ complaint.</p>

<p>Exceptions ordered to be heard at thé General Term in the first instance, after a nonsuit granted at the Monroe Circuit.</p>

<p>Reference of a disputed claim — fhestatute mustie strictly followed — 3 R. 8. (6thed.), 96, 97, secs. 47, 48 — A creditor’s action will not lie until a judgment lias leen procured.</p> <p>The provisions of the Revised Statutes (3 R. S. [6th ed.], 96, 97, §§ 47, 48) providing for the reference of disputed claims against the estate of a deceased person must be fully and strictly complied with. If any of the proceedings thereby required be not taken the judgment entered upon the report of the referee will be void.</p> <p>A creditor’s debt must be ascertained and determined by a judgment before he can proceed in equity to collect the same from the equitable assets of the debtor.</p>

The defendant served an answer and the plaintiffs returned it because it was not verified. The defendant claimed that the verification of the complaint was defective, and that therefore an unverified answer could be served.

The action was brought in the County Court of Monroe county, to recover the possession of a piece of land situate in the city of Rochester. The defendants answered denying the complaint, setting up the defense of the statute of limitations and adverse possession.

The plaintiff recovered a judgment for nine dollars and eight cents in a Justices’ Court. The defendant appealed to the County Court, where a verdict was rendered in his favor. The plaintiff taxed costs in his favor and entered a judgment therefor. The defendant then moved to strike them out, and his motion was denied.

One of the affidavits used upon the motion stated the “ torpedoing ” process as follows, viz.: “ That torpedoing is a process for increasing the how of oil in an oil well; that it does not produce oil, and is of no value unless there is oil in a sand rock when it is exploded; that it is a process resorted to at different times during the life of the well, but never until after the well is completed; that its object is to shatter up or make cracks in the oil-bearing rocks in…

Motion by the defendant for a new trial upon exceptions taken at the Monroe Circuit, where a verdict was ordered for the plaintiff and the exceptions were ordered to be heard in the first instance at the General Term. The defendant requested to have the case submitted to the jury, but the court refused so to do. The action was brought upon a bond executed by Azubah Carpenter.

<p>Will— bequest to charitable rnd religious corporation — the will must be made at least two months 'prior to the testator’s death — 1848, chap. 319, sec. 6 —Void legacies — when they go to the next of hin, and not to the residuary legatee.</p> <p>No devise or bequest made under section 6 of chapter 319 of 1848 (authorizing any corporation formed under that act, subject to the exceptions in said section specified, to take, hold or receive any property, real or personal, by virtue of any devise or bequest contained in a last will or testament) is valid, unless it be contained in a will made and executed at least two months before the death of the testator. It is not necessary, in order that the devise or bequest should be invalid, that the testator should have left a wife, child or parent.</p> <p>When the charter of a religious or charitable corporation subjects it “ to all the provisions of law relating to devises and bequests by last will and testament,” or “to the provisions of law relating to bequests and devises to religious societies,” it is subject to the provisions and restrictions contained in the said sixth section.</p> <p>A testator, after giving legacies to certain persons and charitable institutions, provided as follows: “I further direct that whatever amount may remain in the hands of my executors after fully carrying out the provisions of this will and defraying the proper expenses of s® doing, be paid over to the Home Missionary Society of the Presbyterian Church, hereinafter named. ” Certain of the bequests having failed, owing to the incapacity of the legatees to take them:</p> <p>Held, that such legacies should go to the next of kin, and not to the residuary legatee. ,</p>

The action was brought to recover upon a promissory note and . was tried at the Herkimer Circuit in November, 1880. A verdict was rendered in favor of the defendant.

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

<p>Appeals by Harford B. Kirk, Charlotte S. Garrigue'and Thomas Minford from an order made at a Special Term confirming the report of commissioners of estimate and assessment.</p>

<p>Appeal by the plaintiff from a judgment, entered on the dismissal of his complaint at the circuit.</p>

<p>Appeal from a judgment, recovered on the dismissal of the plaintiff’s complaint at the circuit.</p>

Appeal by the Mayor, etc., of the city of New York, from an order made at a Special Term reducing an assessment so far as it was imposed upon the petitioner’s property.

<p>Appeal from an order denying a motion made to require the plaintiff to give security for costs.</p>

<p>Fraudulent conveyances— statements of the assignor, made after the assignment, are not admissible as against the assignee — right of the assignee to attack the plaintiff’s judgment for fraud.</p> <p>In an action by a judgment creditor to set aside as fraudulent a conveyance of real estate made by tbe debtor to bis wife tbrougb a third person, statements of tbe debtor made after tbe execution of tbe deed and tbe delivery of tbe possession of tbe property cannot be received to show tbat be intended by tbe conveyance to defraud bis creditors.</p> <p>In such an action the wife may show tbat tbe plaintiff’s judgment was procured by fraud and collusion, and with tbe intent to charge the property of tbe wife with the debt of tbe husband.</p>

ApplicaxioN to revoke a license authorizing tbe person proceeded against to practice as an attorney, etc., in the courts of this State.

Appeal by the plaintiff from a judgment dismissing the complaint herein, entered upon the trial of the action by the court with a jury.

, entered on the report of a referee, dismissing the plaintiff’s complaint.

<p>Evidence — statements of a prisoner made after his arrest— when they a/re admissible as having been voluntarily made — letters found in the prisoner’s possession — when they cannot be received in evidence against hint —failure of the accused to deny statements made by a witness before the coroner’s jury — when the fad of his silence will not authorise an inferenceofhis acquiescence in them.</p> <p>One Willett was arrested upon a charge of murder and taken to the district attorney’s office, where he had a conversation with Hotchkiss, a detective. Willett made a statement voluntarily and with knowledge that Hotchkiss was a detective. Thereafter at a second and third interview the prisoner made similar and further statements, those of the third interview being reduced to writing and signed by him. On the second and third occasions he was told by the dis trict attorney that he need not make the statements unless he was willing to do so; that if he was innocent he did not see that it would do him any harm; that if he was guilty it would probably be used against him and that it might hang him.</p> <p>Held, that the statements were voluntarily made and were properly admitted in evidence upon his trial.</p> <p>That where there is no conflict in the evidence as to the circumstances under which such statements were made, the admissibility of such statements should be decided by the court and not be left to the jury.</p> <p>Semble, that the rule is the same even when the evidence is conflicting.</p> <p>Upon Willett’s arrest letters were found in. his trunk from the deceased and also from the sister and the daughter of the deceased, which tended to show that the writers of them knew that improper relations had existed between Willett and the daughter. No letters from Willett in answer to, or calling forth the said letters were produced or proved to have been written.</p> <p>Held, that the court erred in allowing the letters to be received in evidence against the prisoner.</p> <p>It seems, that the letters might have been received for the sole purpose of showing that Willett had notice of the statements therein contained, as bearing upon the question of motive, but that they could not be admitted as evidence of the truth of the facts stated. (Per Learned, P. J.)</p> <p>A witness, upon being examined before the coroner’s jury, testified that, on the night of and shortly after the murder, a stranger called at her house and asked the way to Sandy Hill, and also for a glass of water. In order to test the memory and correctness of the witness, the prisoner and a number of strangers were placed around a room, and the witness upon being asked to pick out the individual she saw at her house that night, designated the prisoner. She was then seated, and a number of persons passed behind her in such manner that she could not see them, each one repeating the question as to the road to Sandy Hill and asking for a drink of water. The witness again recognized the prisdner by his voice. In neither instance did he deny that he was the person she saw that night. Upon the trial these experiments were admitted in evidence upon the theory that from the prisoner’s silence at that time the jury might infer the truth of the witness’ statement that he called at her house that night.</p> <p>Held, that the prisoner was under no obligation to deny the truth of the statement made by the witness before the coroner’s jury, and that the court erred in admitting the evidence. * ■</p>

<p>Committee of lunatic— a failure to give notice of tiie application for Ms appointment to all the next of Mn does not deprive the court of jurisdiction— Code of Civil Procedure, secs. 2825, 2385 — inquiry cannot be made as to the past condition of the alleged lunatic.</p> <p>The failure of the court to require notice of an application for the appointment of a committee of an alleged lunatic to be given to the husband, wife or one or more of the relatives of the lunatic, as required by section 2325 of the Code of Civil Procedure, where sufficient reasons for dispensing therewith áre not set forth in the petition or accompanying affidavit, does not deprive it of jurisdiction over the matter, but is a simple irregularity which may be cured or disregarded.</p> <p>It is sufficient if upon the hearing of a motion, made by the alleged lunatic, to set aside the order appointing the commission, all the parties interested have an opportunity to be heard.</p> <p>Since the adoption of section 2335 of the Code of Civil Procedure the inquiry must be confined to the incompetency of the person at the time the inquisition is held, and it is erroneous to include in it a statement that the incompetency existed for any definite period prior thereto.</p>

The action was in the nature of a quo warranto to oust the defendants from the office of wardens of Christ Church, in Cooperstown. The case was tried before Mr. Justice Follett, who, upon directing the complaint to be dismissed, delivered the following opinion:

This action was brought for an alleged conversion of a Swiss organ and stool. On the 17th day of November, 1876, the plaintiff, by a conditional sale, sold the organ in question to a Mrs. Apgar, at the agreed price of $180, for which sum the vendee gave her two. negotiable promissory notes to the plaintiff, in the sum of ninety dollars each, payable, respectively, in one and two years from date, with interest.

The action was brought by the plaintiff, a minister, to recover damages for slanderous utterances of the defendant, charging the plaintiff with having been guilty of adultery, fornication and lewdness, whereby the plaintiff was compelled to leave his congregation. Four separate utterances of different slanderous words were set out in the complaint, which was unverified, as separate causes of action.

<p>Insolvent debtors — application for a discharge from, arrest — the petition must be presented to the court — all property owned by the debtor at the time of making the assignment must be assigned —the delivery of the property to the assignee must be proved.</p> <p>Where a petition for an insolvent debtor’s discharge is, after due notice, presented to and acted upon by the County Court at‘one of the terms held by it, the fact that the petition was addressed to the judge by whom the court was held, and not to the court itself, does not invalidate a discharge granted upon it. The statute (sec. 6 of 2 R. S., 82) requires the debtor to assign all the property he has at the time he is ordered to make the assignment, and not merely such as is described in, or as he had at the time of signing the petition.</p> <p>In order to authorize the making of an order discharging the debtor from arrest, some evidence must be given to show that he has actually delivered to the assignee the property directed to be assigned.</p>

Seeley made a general assignment to Raymond for the benefit of creditors. Baucus was appointed assignee in the place of Raymond, removed. A petition was presented by the National Bank of Schuylerville, a creditor of. Seeley, to the County Court, asking for an accounting of Raymond, assignee. Seeley, the assignor, also petitioned for a like accounting. A citation was issued and served, and the matter was referred to a referee.

<p>Appeal from an order made at a Special Term, setting aside- a demand made by tbe defendant, for a bill of particulars.</p>

The affidavit, which was made by an agent of the plaintiffs, stated “ that a cause of action exists in favor of the plaintiffs against said,defendant, for which said action is commenced; and that the amount of his claim in said action is $1,216.42, with interest from the 9th day of January, 1882, over and above all discounts and set-offs ; and that the grounds of said claim and cause of action are that the defendant is indebted to the plaintiffs for gent’s wares and…

Fourteen separate appeals from an order made at Special Term, affirming the taxation of the costs of the plaintiff and certain other parties under the judgment entered in this action. This action was brought by Herman Veeder, for himself and all other creditors similarly situated, to compel the stockholders of the Rochester Iron Manufacturing Company to pay the debts of said company under the provisions of sections 10, 11 and 24 of chapter 40, Laws of 1848.

John I. Anderson had been appointed receiver of this company and was removed, and another person appointed in his place. Afterwards on the 22d of September, 1877, an application was made by Anderson for the payment to him of commissions, and for the payment to certain persons employed by him of counsel fees. On that application the Special Term made an order referring the matter to Charles H. Winfield.

The . complaint alleged that the Boston, Hoosac Tunnel and Western Railway Company was the name of a combination or association of persons claiming and pretending to be a corporation, and exercising corporate rights and franchises - within this State without having been lawfully incorporated, and, also, that it had willfully exceeded all the powers it could possibly have as a corporation if it had been duly incorporated.

<p>Appeal from an order made at a Special Term adjudging the appellant guilty of misconduct and contempt in violating an injunction, and ordering him to be imprisoned in the county jail for thirty days and to pay a fine of $250.</p> <p>The Brooklyn Elevated Railway Company was chartered by chapter 585 of 1874 for the purpose of constructing and operating an elevated railroad from the Brooklyn end of the East river bridge to Woodhaven, in Queens county. The charter designated the route through certain streets and avenues of the city of Brooklyn where the road should be built, being a single line of road, and at the end of the description added “ or on such streets and avenues as may be named by the mayor and common council of the city of Brooklyn as being more suitable for . carrying out the objects contemplated in the erection of said elevated railway.”</p> <p>On the 6th day of December, 1881, on application of the company, the common council adopted a resolution naming other streets and avenues as being more suitable for the carrying out of thé objects contemplated.</p> <p>On the adoption of the said resolution the same was, on the seventh1 of December, sent to the mayor for his approval, but the mayor returned the same on the seventeenth of December to the common council disapproved by him with a message stating the grounds of his disapproval. Thereupon the relator claiming that the common council intended and threatened, in virtue of their authority as the legislative power in the city and in pursuance of the city charter, to pass the said resolution over the mayor’s objections, commenced an action against the city of Brooklyn, the Brooklyn Elevated Railway Company and its receivers to restrain them, among other things, from passing the resolution or from acting thereunder.</p> <p>At the commencement of the action an order was obtained from the county jitdge of Kings county requiring the defendants to show cause on the 28th of December, 1881, at a Special Term of the. Supreme Court, why such injunction should not be granted, and until the hearing and decision of said motion enjoining the city of Brooklyn and the common council, and each and every member thereof, from voting, acting upon, or considering in any form or manner, or passing, any resolution, altering or changing the route of the Brooklyn Elevated Railway from that designated' in the charter, or from voting or doing any act to override the veto or disapproval by the mayor of the resolution aforesaid.</p> <p>The summons, complaint and injunction order were served oh the mayor and each individual alderman on the 27th of December, 1881.</p> <p>The motion to continue the injunction was argued on the 28th of December, 1881, the aldermen appearing by counsel and the decision being reserved.</p> <p>After service of the injunction on the twenty-seventh the board of aldermen, being the common council, adjourned from day to day until the thirty-first of December, on which day they met and after some delay they took the resolution in question from the table, and under the previous question passed and adopted the same notwithstanding the objection of the mayor. The defendants in these proceedings, seventeeri in number, voting in the affirmative. They were attached for contempt in willfully disobeying the order of injunction, and severally adjudged to be in contempt as charged and ordered to be punished by fine and imprisonment.</p>

The action was brought to recover the possession of certain premises formerly belonging to the plaintiffs’ father, James A. Bennett, and which had been by him conveyed to the Washington Cemetery Association.

The plaintiff had made an agreement with the defendant to varnish clock cases for it at a certain fixed price for each case varnished, the price varying according to the style of case. This work was done in rooms in the defendant’s factory, upon clock cases furnished by defendant, but by men employed by the plaintiff on his own account.

In 1845, Cornelius Heeney and others were organized as a body corporate under the name of “ The Trustees and Associates of the Brooklyn Benevolent Society,” by chapter 169 of the Laws of that year.

<p>Certiorari to review the conviction of the relator of disobedience of orders and failing to attend company drills, by a court martial consisting of the respondent.</p>

<p>Ohaltel mortgage — when invalidated by an oral agreement authorising the mortgagor to sell and dispose of the propmty.</p> <p>A chattel mortgage was given which covered all the farming utensils on a dairy farm, the stock, the growing crops, the cord-wood cut and the grain harvested, together with the furniture in the house. At the time of giving the mortgage it was orally agreed that the mortgagor, who was to remain in possession of the property until default, should be permitted to sell and dispose of the property either for money or in- trade for other stock, the money received to be applied to the purchase of further stock, which was to be subjected to the lien of the mortgage, and that the grain should be used in feeding the stock.</p> <p>Held, that the agreement was fraudulent per se and rendered the mortgage void. i</p>

” The plaintiff’s property is on the west side of First street, which is a public highway. The defendant’s property .is on the opposite side of that street, and extends along the same 400 feet southwardly from the plaintiff’s premises. The fee of the street in front of their property is in the defendants!

<p>Statute of limitations — when proceedings to procure a sale of the■ real estate of a deceased debtor a/re not barred by it.</p> <p>February 11, 1871, a simple contract debt became due from one Jenkins to tbe appellant. March 19, 1871, Jenkins died, and on April 14, 1871, letters of administration upon his estate were granted. February 6, 1880, the appellant instituted proceedings in a Surrogate’s Court to compel the sale of real .estate of the intestate which had descended to the respondents.</p> <p>Meld, that he might institute such proceedings at any time before his right to maintain an action against the heirs-at-law was barred by the statute of limitations.</p> <p>That as the statute (2 R. S., 113, § 53) prevented any action being brought against the heirs within three years from the decease of their testator, such three years constituted no part of the period of limitation, and that the action might be brought at any time within nine y^ears from the debtor’s death.</p> <p>That the proceedings were not barred by the statute.</p>

<p>Appeal from a decree of the surrogate of Queens county admitting a will to probate and judicially construing certain of the provisions thereof.</p>

<p>Supreme court — jurisdiction of, to appoint receivers of estates of deceased pm'sons— an action must te pending in the Supi'eme Court to confer jurisdiction upon it.</p> <p>A surrogate having made an order vacating a decree admitting a will to prohate, an appeal was taken therefrom to the General Term. During the pendency of this appeal an order was made at a Special Term of the Supreme Court by which a receiver of the estate of the testator was appointed.</p> <p>Held, that the court had not iurisdiction to make the order.</p>

Van Wyek, deceased. The petitioner alleges that she was the administratrix of Emma Louisa Yan Allen, who was a legatee under the will of the said Yan Wyck, and prayed that his executor, the appellant, might be required to pay to her the amount of the said legacy, and, also, that he be required to file his inventory and appear and render an account of his proceedings.

<p>Appeal from a decree of the surrogate of Westchester county requiring the appellant to render an account of his proceedings, as executor of the last will and testament of Andrew Hood, deceased, since the 8th day of December, 1868.</p>

The Brooklyn Elevated Railway Company was incorporated by chapter 585 of 1874, as amended by chapter 422 of 1875. After it had commenced the construction of its road an action was commenced against it by the attorney-general to compel the directors to account and to restrain them from any further dealings with the property of the company, and by the trustees of a mortgage given by it to procure its foreclosure.

The action was brought to set aside a general assignment made by the firm of Neil,'McCullum & Co., on the ground of fraud.

<p>Highway — right of a raiVroad, company to construct its road across it —1850, chap. 140, sec. 28, sub. 5, as amended by chapter 582 of 1864.</p> <p>Under subdivision 5 of section 28 of chapter 140 of 1850, as amended by chapter 582 of 1864, a railroad company has no right to construct its road upon the surface of a highway — either across or along it — without first obtaining an order of the Supreme Court authorizing it so to do, made upon notice to the highway commissioners. (Per Cullen, J.)</p> <p>A railroad company cannot construct its road across a highway where by so doing the usefulness of the highway will be not only diminished, but virtually destroyed. (Per Dykman, J.)</p>

The action was brought in a Justice’s Court in the county of Dutchess, by the plaintiff, for work, labor and services performed for and rendered to the defendant, and a judgment for fifty dollars was demanded. The defendant denied each of the allegations of the complaint; pleaded payment and set up a counter-claim for goods sold and delivered, and demanded judgment therefor for sixty dollars. The justice ordered the plaintiff and defendant to furnish a bill of particulars.

Appeals from judgments, entered on the conviction of the defendants upon their trials upon indictments for felonious assaults.

The action was brought by the people, on the relation of George Petry, to oust the defendant from the office of mayor of Long Island City and have Petry declared entitled thereto.

, the supervisor, justices of the peace and town clerk) of such town for all moneys received and disbursed by him ” as commissioner of highways of the town of Middletown, Richmond county. The town of. Middletown, by the relator and appellant, brought these proceedings and appealed from the order made herein.

■ Motion to set aside an order made by the General Term of the Second Department, on the 9th day of May, 1881, admitting Mr. William Lane O’Neil to practice as an attorney and counselor-at-law.' The papers, upon which the order admitting him to practice was made, show that he was born in Ireland in 1846, and emigrated to the United States on February 25, 1881. On February 28, 1881, he filed his declaration of intention to become a citizen of the United States.