Volume 35 — New York Supreme Court Reports

<p>Appeal from a judgment, entered on an order of the Special Term in Erie county, sustaining a demurrer to the complaint.</p>

<p>City of Loakport — ordinance dweeting a local improvement to be made — petition for it — when work asked for in different petitions may be joined — notice to property owners of the assessment — 1873, chap. 387.</p> <p>The charter oí the city of Lockport directs that no ordinance providing for local improvements shall be passed unless based upon a petition therefor, signed by persons owning at least one-third of the property to be assessed for the improvement, Two petitions were presented to the common council, each asking for the construction of a main sewer in Erie street, and praying also one of them for the construction of branch sewers in Mulberry and South streets, and the other in Lewis and Spalding streets. An ordinance was passed directing a sewer to be constructed in Erie street, from Walnut to a point 250 feet south of Spalding street, with branches in South, Mulberry, Lewis and Spalding streets.</p> <p>Held, that-as the petitioners were united in asking for the construction of the main sewer the ordinance was valid, and 'was not rendered void by reason of the fact that the branch sewers which it directed to be constructed were riot asked for in each petition.</p> <p>Qucere, as to whether entirely separate improvements asked for in separate petitions could be prop.erly united in one ordinance.</p> <p>Held, further, that the fact that the ordinance directed the main sewer to be made longer and the branches shorter than the sewers petitioned for did not invalidate it; that the common council was not confined to the exact limits marked out by the petitioners, provided the improvements ordered were, in the main, the same as those asked for.</p> <p>Where the charter only requires notice of the assessment for a local improvement to'be given to the owners of property to be affected thereby, no notice of the action of the common council in defining the area of assessment need be given.</p>

<p>Drainage proceedings— the Oounty Oourt may appoint commissioners of appraisal — 1869, chap. 888, and 1871, chap. 303 — the regularity of the appointment of de facto drainage commissioners cannot be attacked collaterally.</p> <p>Under the statutes authorizing proceedings to be taken for the draining of lands (chap. 888 of 1869 and chap. 303 of 1871) the county court has power to appoint commissioners of appraisal, when the drainage commissioners cannot agree with a land owner upon the compensation to be made.</p> <p>An application for the appointment of commissioners of appraisal cannot be defeated by showing irregularity in the manner of the appointment of the drainage commission, where the members of the latter commission are commissioners de facto.</p>

<p>Statute of limitations — what is a sufficient written acknowledgment to take the debt out of the statute— Code of Omit Procedure, sec. 395.</p> <p>On July 16, 1878, the plaintiff commenced an action in a Justice’s Court upon a claim which accrued in August, 1872. The action was adjourned to October seventeenth. On that day the parties appeared before the justice and entered into a written stipulation to submit the matters in difference to an arbitrator named therein, and on the hearing before the arbitrator to waive the statute of limitations. Thereupon the action was discontinued. The next day the defendants’ intestate revoked the submission, and thereafter and in the following March died. Upon tlie plaintiS seeking to enforce the payment of the claim from the defendants they pleaded the statute of limitations.</p> <p>Held, that the agreement to waive the statute on the hearing before the arbitrator ' was a sufficient written acknowledgment of the debt to remove the bar of the statute.</p>

<p>Legacy— when vested — when one accepting a devise charged with the payment of legacies is personally liable therefor.</p> <p>A testator by bis will gave and bequeathed “to the two children now living of my daughter, Ann Maria, the sum of one thousand dollars each, to be paid to them, respectively, as they arrive at the age of twenty-flve years.” He then devised the principal part of his real and personal estate to his son, subject to the payment by him of all debts and certain of the legacies, including the ones above mentioned; “ expressly making tbe said legacies a charge and lien upon the property devised ” to his son.</p> <p>Held, that the legacy to each of the children vested immediately upon the death of the testator, and then became a lien upon the property devised to his son. That upon the death of one of the children, before attaining the age of twenty-five years, her administrators might bring an action to recover the legaciy after the time when the child, , if living,'would have attained that age.</p> <p>That as the son had accepted the devise made to him, and was the sole executor, he was personally liable for the payment of the legacy.</p>

The affidavit used to procure the attachment alleged, among other things, that the plaintiifs were assignees of the defendants of a lease of an oil well, rigs and other improvements for oil production on said premises; that a lien was jilaced upon said premises for work done for said defendants, and that the plaintiifs to save the property had been obliged to pay the amount of such lien.

The action was in replevin, the plaintiffs claiming certain property under a chattel mortgage executed to them by D. IT. Westbury. The defendant justified his possession under attachments, issued to him as sheriff, in actions brought against Westbury and under executions subsequently obtained and issued in the same actions. The question as to the validity of the attachments has been before the court and they have been sustained. {City Bcmlc v. Westbury, 16 Hun, 458.)

Appeals from two judgments, entered in Monroe county upon the reports of a referee. Each action is upon a promissory note. One note was executed by Dwight and the other by Gage. Each note was indorsed by the defendant Lord, and the notes were delivered by him to the plaintiffs as collateral security for advances made or to be made, by the plaintiffs to the defendant Lord, under two contracts entered into between the plaintiffs and the defendant Lord.

Tlie action was brought against the defendants, two of the assessors of the town of Eloyd, to recover the amount of a tax which the plaintiff- claimed that he had been compelled to pay by reason of their having wrongfully placed his name upon the assessment-roll after July 1, 1SJ8.

The will was made 26th of July, 1870. Testator died September 15, 1872, leaving eight children. The appellant was married when the will was made. She lost her husband October 1, 1876. On August 1, 1878, she married again, her present husband. The testator’s widow died October 18, 1880. . The property was to be converted into money, and disposed of by the trustee, at death of the testator’s widow.

The claim was made under ,a lease, upon which the intestate was liable as a guarantor, and upon two notes signed by her and by the lessee and given for'rent due under the lease. Upon the hearing, no objection was’taken to the introduction in evidence of the lease and the guaranty thereof, which guaranty was executed by the deceased, and of the notes which were given to adjust the rent which had accrued under the lease.

Writ of error to the Oneida County Oyer and Terminer, to review the trial and conviction of the plaintiff in error of the crime of murder in the first degree. The trial took place at the October Oyer and Terminer in 1881, held in the Oneida Circuit. The plaintiff in error was sentenced to be hanged on the 15th day of December, 188.1.

<p>Executors— we liable for losses incurred in making investments to escape taxation — an estate cannot claim the profits of such an investment without accepting the incidental expenses thereof — Commissions—executors cannot lake them until they have been ascertained by the court —power of the court to withhold them entirely.</p> <p>It is no part of an executor’s duty to resort to devices to evade the lawful assessment and taxation of the estate in his hands; an^. if in so doing he incurs liabilities or borrows money to buy securities exempt from taxation, and such action results .in a loss to the funds in his hands, he will be compelled to make good such loss, however clearly it may be shown that he intended to benefit the estate.</p> <p>An executor, in order to evade the imposition of a tax upon the estate, borrowed moneys, upon its credit and bought securities exempt from assessment. The transaction resulted in a small profit for the estate, besides enabling it to escape taxation for a considerable amount. Upon the accounting by the executors it was sought to charge them personally with the interest paid by them upon the money so borrowed.</p> <p>Held, that this could not be done; that the estate could not take the profits of the transaction without adopting the incidents that attended its realization.</p> <p>Held, further, that the interest so paid should be charged upon the income and - not upon the principal of the estate.</p> <p>A few months after the executors entered upon the discharge of their duties they withdrew the sum of $15,000 from the estate and divided it between themselves as part of their commissions.</p> <p>Held, that upon their accounting they should have been charged with the amount paid to themselves, respectively, and with interest thereon from the time the money was withdrawn from the estate, and that the surrogate should then have awarded to them such commissions as they were entitled to receive.</p> <p>Executors have neither the power nor right to pay-themselves commissions until such commissions have been ascertained in the manner provided bythe statute authorizing and fixing them.</p> <p>It is in the power of a surrogate or court to deny all commissions, where there has been misconduct on the part of the executors resulting in losses to the estate greater than the lawful compensation. (Per Davis, P. J.)</p>

<p>Injunction — undertaking given upon procuring it — what is a final decision that the plaintiff is not entitled to it.</p> <p>An execution having been returned unsatisfied upon a judgment recovered against the defendant by the plaintiff the latter, during the pendency of an appeal taken by the defendant from such judgment, brought this action to set aside certain conveyances alleged to have been fraudulently made by the defendant and procured a temporary injunction restraining him from collecting the rents of the premises so conveyed. Subsequently the judgment appealed from was reversed and a new trial ordered. Thereafter a judgment previously entered in this action was vacated; and subsequently the plaintiff, pursuant to an order allowing him so to do, discontinued the action, without costs. The.injunction granted in this action was dissolved by the court prior to the entry of the judgment herein.</p> <p>Upon an application to recover the damages occasioned by the injunction, upon an undertaking given by the defendant providing for the payment' Of all damages the plaintiff might sustain by reason of the injunction, if the court should finally decide that the plaintiff was not entitled thereto:</p> <p>Meld, that the decision of the court refusing to continue the injunction and dissolving it was, under the peculiar circumstances of the case, a final decision that the plaintiff was not entitled to it within the meaning of the undertaking.</p>

<p>Case submitted under sections 1279, 1280 and 1281 of the Code of Civil Procedure.</p>

AppEAL-from a judgment, entered upon the trial of this action by the court without a jury, dismissing the complaint herein, with costs.

<p>Dismissal of the -complaint for delay in prosecuting the action — when it should, be ordered — an appeal should be taken from the order and not from the judgment— Gode of Civil Procedure, see. 823 — General Pule No. 36.</p> <p>Where a judgment dismissing the complaint has been (entered upon an order directing its dismissal because oí the unreasonable delay of the plaintiff in prosecuting the action, the plaintiff, if he desires to review the action of the court, should appeal from the order and not from the judgment.</p> <p>In May, 1862, issue was joined in an action commenced upon a promissory note just as it was on the point of outlawing. ' An order for a commission with a . stay of proceedings until its return was obtained by the defendant. The commission was never returned and in 1875 the stay was vacated by consent, after which time the cause was placed on the calendar. In December, 1876, the plaintiff, at the defendant’s request, allowed the case to go over the term, and it was then marked as reserved generally. The defendant had not noticed the cause for trial, but his attorney had repeatedly requested the plaintiff to bring the cause to trial, and younger issues had been tried. On January 24, 1880, an order wa's made on the defendant’s-application dismissing the complaint.</p> <p>Held, that the court properly granted the motion made by the defendant to have the complaint dismissed upon the ground of the unreasonable delay of the plaintiff in prosecuting the action.</p>

<p>Bill of exchange — when the acceptor may defend on the ground that his acceptance was induced hy the fraud of the drawer.</p> <p>In an action against the acceptor of a hill of exchange he may show that he was induced to accept the bill hy the false and fraudulent representations of the drawer, provided no consideration was received hy him at the time of the acceptance and the holder of the hill has parted with nothing of value in reliance upon such acceptance.</p> <p>This defense of the acceptor is not affected by the fact that the plaintifE is a bona fide holder for value as against the drawer and the indorsers.</p>

<p>Notice — dll the members of a firm are charged with notice of facts hnown to one partner — when they' are changeable with such notice after the dissolution of the firm.</p> <p>In the year 1866, one Samuel B. Keys was a member of the firm of Keys & Brother, of Cincinnati, and also of the firm of Mowry, Keys & Bend, of the city of New York. In the course of that year Keys purchased in behalf of his firm bonds issued by the plaintiff, which were void in his hands and in the hands of his firm, because he being a director of the company- had purchased them for less than their par value, in violation of a statute of the State of Ohio, and because nothing was in fact ever paid to the company for them. Subsequently the firm of Keys & Brother, being indebted to the firm' of Mowry, Keys & Bend on account of stock purchased and advances made by the latter firm, sent to it the said bonds to be held as collateral security for the payment of such debt. In March, 1867, both of the firms being then dissolved and in process of liquidation, an agreement was executed by the two firms, and by each of tbe members thereof, whereby the late firm of Keys & Brother transferred to the late firm of Mowry, Keys & Bend certain stocks and securities, including the said bonds, in satisfaction of a large indebtedness due to the New York firm. On the same day three of tilie members of the late firm of Mowry, Keys & Bend transferred to the fourth member, the defendant Mowry, all their right and title to the said securities, he assuming the liabilities of the said firm and indemnifying his partners individually against them.</p> <p>In this action, brought by the company against the members of the New York firm to recover damages for a wrongful conversion of the bonds:</p> <p>Held, that as Samuel B. Keys had actual knowledge of the defective title of the firm of Keys & Brother to the bonds, his partners in the New York firm were chargeable with constructive knowledge thereof and acquired no better title to the bonds than their pledgor had.</p> <p>That the partners of the said Samuel B. Keys were affected by and chargeable with such constructive knowledge after the dissolution of the firm, and while negotiating for the settlement of the affairs of the two firms and the transfer of the securities of the New York firm to Mowry.</p> <p>That the defendants Mowry and Bend, by reason of such constructive knowledge, were liable to the plaintiff for the conversion of the bonds.</p>

<p>Judgment — how far apa/rty to the action is concluded by it — right of one who has been discharged in bankruptcy to home judgments against him canceled— Code of Civil Procedure, sea. 1368.</p> <p>An action having been commenced, by the plaintiff, to set aside a conveyance alleged to be fraudulent and to compel the specific performance of a contract, a judgment for costs was recovered therein by the defendants in July, 1876, which was subsequently increased by the sum of $750 allowed to the defendants for the damages occasioned by a temporary injunction granted upon the plaintiff’s application. Subsequently a controversy having arisen between the defendants and their attorneys, who claimed to have a lien upon the judgment for the value of the services rendered by them, an action was brought by the attorneys in the Court of Common Pleas, in 1877, against the plaintiff and defendants, to have their lien determined and established, and to compel an assignment of the judgment to them, no personal claim being made against the plaintiff. In April, 1880, a judgment was entered therein declaring that the former judgment was still in force and unpaid and that the attorneys had a lien theréon to an amount stated. Prior to that time and in January, 1880, the plaintiff had been discharged in bankruptcy.</p> <p>Upon an application made by him, under section 1368 of the Code of Civil Procedure, to have the judgment discharged and canceled of record:</p> <p>Held, that he was not estopped by the judgment recovered in the Court of Common Pleas from so doing. That that judgment only made it his duty to pay whatever was due thereon to the attorneys and not'to the defendants, and it did not in any way affect or revive his liability upon the first judgment.</p>

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

<p>Deed — delivery of, in escrow — right of a partner to increase the firm liabilities after the execution of a general assignment— liability of a general assignee.</p> <p>One Bunn executed a mortgage upon certain real estate owned by him, to secure the payment of his individual bond. Thereafter, and on March 34, 1879, he executed a deed of the land to himself and one Lyons, his partner, with whom he was, at the time of the purchase of the property, engaged in carrying on business. By this deed, the payment of the bond and mortgage was assumed by the grantees. The defed was left with the attorney of the grantees, upon the agreement that he was to hold it in escrow, and that it was not to be considered as delivered until he had been notified by . one or both of the grantees, and that, upon his recording it, in pursuance of such a notice, it was to be deemed delivered. On June 9,1880, the firm made a general assignment for the benefit of their creditors. Upon the same day, and some three or four hours after the execution of the assignment, the attorney, in pursuance of a verbal notice received from Lyons, recorded the deed. In an action to foreclose the mortgage, it was sought to recover a judgment against the assignee for any deficiency that might arise upon the sale.</p> <p>Meld, that one of the partners could not, after the making of a general assignment, prejudice the rights of the firm creditors by accepting the deed and thereby increasing the liabilities of the firm.-</p> <p>That even if such acceptance of the deed were valid, it would only create a personal liability upon the grantees and would not impose any liability upon the assignee or authorize the entry of a judgment for deficiency against him.</p>

<p>Evidence — admission of additional record evidence on appeal — not allowed to procure a reversal of the decision below.</p> <p>Where a matter of record has been imperfectly made to appear upon th« hearing, and the determination has proceeded upon such evidence, and an appeal has been taken, it is allowable for the purpose of sustaining the proceedings to produce complete record evidence, on the hearing of the appeal, to supply the defect, but it cannot be done for the purpose of producing a reversal of the ■decision appealed from.</p>

<p>Contributory negligence — when the question should be submitted to the jury.</p> <p>This action was brought by the plaintiff to recover damages sustained from injuries occasioned by his slipping and falling upon ice which had accumulated upon one of the sidewalks in the city of New York. It appeared that on the Saturday preceding the accident he had been in the same locality, and upon discovering the ice had crossed to the other side of the street, deeming it dangerous to pass over it. The accident happened on the next Tuesday, but the plaintiff testified that the sidewalk was then crowded and that he did not notice the ice or see it until after he fell.</p> <p>Held, that the question of the plaintiff’s contributory negligence should have been submitted to the jury, and that the court erred in nonsuiting the plaintiff.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on a verdict directed by the court.</p>

<p>Controversy submitted upon an agreed state of facts without an action, under section 1279 of the Code of Civil Procedure.</p>

' Appeal from a judgment in favor of tbe plaintiff, entered upon the report o.f a referee. The Marshall Packing Company was incorporated in the summer of 1877, under the general act authorizing the formation of corporations for manufacturing purposes. (Laws 1848, chap. 40.) Its place of business was the city and county of New York. The capital stock was fixed at $250,000, divided into 2,500 shares, of $100 each.

The action was brought upon a written contract for the sale and delivery, by the defendant to the plaintiff, at Brooklyn, of a large quantity of yellow pine timber; the pieces* to be in accordance with the schedule attached to the. contract, to be used by the plaintiff in the construction of a building for manufacturing purposes. The purpose for which the timber was to be used being clearly indicated in the contract and schedules.

<p>Hew York city — grant of lots under the waters of the Hudson river— when, the city cannot thereafter change the permanent whaef line to the detriment of its grantee.</p> <p>In 1810, the city of New York, acting in pursuance of the power conferred upon it by acts of the legislature passed in 1798 and 1807, conveyed to John Jacob Astor, who then owned a tract of land fronting upon the Hudson river, a parcel of land adjoining the same on the west and lying under the waters of the Hudson river. The land conveyed was described as running to “ the permanent line of West street,” and thence northerly along the said permanent line, etc. The deed contained a clause “ saving and reserving out of the several water lots and soil under water above mentioned so much of the same as will be necessary to make Washington street sixty feet wide and West street seventy feet wide.” The streets were to be made and constructed by the grantee, his heirs and assigns, when required so to do by the city, and when so constructed they and the wharves were to be by them kept in repair ahd “ continue to be And remain public streets or highways for the free and common use and passage of the inhabitants of the said city and all others passing through the same, and in like manner as the other public streets or wharves of the said city now are or lawfully ought to be.” The deed conveyed “all and singular the profits, advantages, emoluments, hereditaments and appurtenances unt® the said water lots and soil under water and premises belonging or in any wise appertaining,” and declared that “ the said party of the second part, his heirs and assigns, paying and performing, keeping and observing the several covenants and agreements herein mentioned and contained, on his and their part to he paid, kept and performed, shall and may lawfully, at all times hereafter, fully and freely have, use and enjoy, to his and their use, all and all manner- of wharfage, benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises, being of the width of one hundred and fifty feet.”</p> <p>In an action to recover damages for the action of the city authorities in erecting a structure on the west of the lot, extending 175 feet further into the river, thereby destroying the value of the right to collect wharfage conferred by the deed:</p> <p>Held, that the deed, when considered in the light of the surrounding circumstances, was intended to confer upon the grantee, his heirs and assigns, so long as he and they complied with the covenants and conditions therein contained, the permanent right and easement of collecting wharfage, and all the benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises conveyed, and that the city had no right to thereafter change the permanent wharf line and extend the same further out into the river, even though the title to the land under water to be covered by the extension had been vested in the city by an act of the legislature passed prior to the time of the making of the conveyance. (Brady, J., dissenting.)</p> <p>It was also declared to be the true intent and meaning of the grant that it, " or any words' or anything herein contained, shall not be deemed, construed or taken to be a covenant or covenants on the part and behalf of the said parties of the first part or their successors.”</p> <p>Held, that the effect of this clause would probably be, to require a provision in the deed, which was expressed in the form of a covenant, to be construed as a grant.</p>

<p>Appeal from a judgment, entered upon tbe trial of this action at a Special Term,</p>

• The plaintiff claimed damages for injuries to her person, arising from the alleged negligence of the defendant. The plaintiff is a minor child, eleven years of age. At the time of the injury she resided with her father, who lived in his own dwelling-house, situated on the north side of One Hundred and Fortieth street, West of Third avenue, in the city of New York.

<p>Mcecutors — liability of one, for the wrongful conversion of securities by his co-executor —for allowing moneys of the estate to be deposited by his co-exemtof with a firm of which the lattes’ is a member — for failing to divide the estate as directed by the testator — how far he is affected by knowledge acquwed by thet executory cles’k — how far, by joining in the execution of a satisfaction piece of a mortgage.</p> <p>An executor, who allows his co-executor to deposit the funds of the estate with a firm of which the latter is a member, is personally liable to those interested in the estate for any loss they may thereby sustain.</p> <p>An executor who allows his co-executor to receive and retain in his possession all the securities belonging to the estate is not liable for the wrongful acts of the latter in misappropriating the said securities and converting them to his oyn use, when he had no 'reason to suspect he contemplated so doing, and when it appears that the executor so betraying his trust was a son of the testator, and had, during his father’s lifetime, acquired a faultless reputation as a competent, intelligent, reliable and faithful business man, and had preserved that reputation in the community up to the time when his conversion of the said securities became known.</p> <p>The fact that the will required the executors to set apart from the estate the shares bequeathed and devised in trust for the testator’s daughters and infant sons, and that such separation was in fact never made, would not render an executor liable for such a conversion of the securities of the estate by his co-executor, when it appears that the loss did not follow from and cannot be attributed to the omission to comply with this direction of the testator.</p> <p>The fact that a clerk, jointly selected by the executors to keep the accounts of the estate, discovers that one of the executors is converting the securities to his own use, will not render his co-executor liable for the loss, when the knowledge so acquired by the clerk is not communicated to him.</p> <p>An executor, who joins with his co-executor in satisfying a mortgage, in order to render the discharge more formal, but who receives no portion of the moneys arising, therefrom, is not liable for the conversion of such moneys by his co-executor.</p>

' Appeal from a judgment sustaining the demurrer of the defendant, The Mutual Life Insurance Company, to the plaintiffs complaint and dismissing the same. This is a suit in equity.

The only error alleged on the part of the appellant, is in the ruling at the trial, that the plaintiffs held the affirmative and were entitled to make the closing address to the jury.

A paper purporting to be his last will and testament was admitted to probate on the 25th of August, 1873. The petitioner was one of the children of the testator, and at the time the will was admitted to probate was a minor, being of the age of twenty years. Citations to the heirs-at-law and next of kin were duly issued and served upon the petitioner.

The only ground of demurrer assigned is, that the complaint does not state sufficient facts to constitute a cause of action. The plaintiff is one of the children of William Wall, deceased, and a legatee named in his last will and testament, and her alleged right of action is based upon the provisions in the will for her benefit. Mr. Wall died in the year 18Y2, and his will was admitted to probate in the month of May, the same year.

In 1870, a special copartnership was formed, in pursuance of the provisions of the Revised Statutes concerning limited partnerships, in which Silas Merrifield and William 0. McDowell were the general partners, and the defendant Edward L. Merrifield was the special partner, and they assumed the copartnership name of Merrifield & McDowell. This firm did business until the 10th day of April, 1871, when it was dissolved.

<p>Court of Oyw and Ten'miner —jurisdiction of, over an indictment found in the Court of Sessions — one indicted cannot belet to bail by a judge, while the court is in session— Bench warrant issued by district atkrrney — requisites of— Code of Criminal Procedure, §§ 301, 302 — Failure of witness to obey subpoena — the offense is committed where the court is held — the witness may be indicted for the contempt.</p> <p>One indicted in tlie Court of Sessions for contempt in failing to appear at a term of a Court of Oyer and Terminer, after having been duly subpoenaed, may he tried in a Court of Oyer and Terminer held in that county, although the case has not been sent there by any order of the Court of Sessions.</p> <p>While a Court of Oyer and Terminer, having jurisdiction to try an indictment, is in session, a justice of the Supreme Court has no power to let the prisoner to hail.</p> <p>It is not necessary that a bench warrant, issued for the apprehension of one who has been indicted, should he as full and complete in all -its recitals and statements as a warrant issued under the statute to apprehend a party to he brought before a magistrate for a preliminary examination. It is sufficient if the nature of the offense for which he stands indicted, and the place and the court in which the indictment is pending, are clearly indicated.</p> <p>A bench warrant issued by the district attorney of Albany, commanded the arrest of the relator, “who stands indicted by the Court of Sessions of the county of Albany for contempt.”</p> <p>Held, that the warrant was sufficient.</p> <p>Sections 301 and 302 of the Code of Criminal Procedure, containing provisions as to the form and contents of bench warrants, relate only to those issued by the clerk, aud not to such as are issued by the district attorney himself.</p> <p>The relator was duly served in the city of New York with a subpoena requiring him to attend at a term of the Court of Oyer aud Terminer, to he held'in the city of Albany, to testify in behalf of the people, on the trial of an indictment then pending. The relator failed to appear as required.</p> <p>Held, that lie was guilty of a contempt of court.</p> <p>That the offense was committed and was triable in the county of Albany.</p> <p>That he might be indicted therefor in the Court of Sessions of Albany county, without inquiry being made as to whether or not the court, whose process had been held in contempt, had taken steps to prosecute him therefor.</p>

<p>Action to establish a will — what is a sufficient allegation of the non-residence of the testator — Oode of Oiml Procedure, see. 1861.</p> <p>The complaint, in an action to establish a will, alleged that the testator, “ General Alfred 1ST. Duffié, late United States consul at Andalusia, in the kingdom of Spain, temporarily residing at Cadiz, in said kingdom, but an inhabitant of and domiciled at West Brighton, in the county of Richmond and State of New York, died on the 8th day of November, A. D. 1880, at the said city of Cadiz, and that he was, at the time of his death, possessed of personal property within the State of New York.” It then averred that in the year 1880, at the city of Cadiz, he made and published his last will and testament, and in May, 1881, a codicil thereto, in conformity to the laws of Spain.</p> <p>Held, that the averments as to the residence of the testator were sufficient to justify proof, upon the trial, of facts showing that the testator was a nonresident of the State at the time of the execution of the will and of his death, within the meaning of that term as used in subdivision 2 of section 1861, of the Code of Civil Procedure.</p> <p>The complaint also alleged that the testator signed, published, declared and executed his will and codicil before a notary and three witnesses, and that the will and codicil had been duly recorded by the notary before whom they were made and published in his register or protocol, and that they remained on file in the archives of his notarial office from which they could not be removed for any purpose whatever. The copies of the will and codicil annexed to the complaint showed that each of these instruments was subscribed by the testator, the witnesses and the notary.</p> <p>Semble, that the complaint stated a cause of action under the first subdivision of the section providing for the proof of a will executed in such manner and under such circumstances as that it might, under the laws of the State, he admitted to probate in the surrogate’s office, where the original will is in another State and country, under such circumstances that it cannot be obtained for that purpose.</p>

<p>Appeal from an order of tbe Surrogate’s Court directing a distribution of moneys to the petitioners.</p>

<p>Waiverwhat 'acts of an officer amount to a consent to a change of duty or sala/ry— Judgment — extent of the estoppel created by it— Several causes of action arising out of a single contract cannot be. made the subject of separate actions.</p> <p>On June 80, 1875, the plaintiff was appointed an engineer in the fire department of New York, at a salary of $1,500 per annum, and served in that capacity untilOctober 6, 1875, when an order was made by the board of fire examiners relieving him from duty as engineer and appointing him a machinist in the repair shops, at a salary of three dollars per day. The plaintiff worked in the machine shops from October seventh to and including June 6, 1877, received his monthly pay at the rate of three dollars a day, and signed receipts therefor in full payment for his services.</p> <p>Held, that the conduct and acts of the plaintiff had the force and effect of a consent to vacate the position of engineer and accept that of machinist, and that he could not thereafter claim that he had been wrongfully removed from his position as engineer, and recover the difference between the salaries of the two offices.</p> <p>The plaintiff was finally discharged from the department in June, 1877. Thereafter he brought an action and recovered therein a judgment of $1,200 against the city, upon the ground that from June, 1877, to January, 1880, he had repeatedly offered to perform the duties of an engineer, but was not allowed' to do so, and that he was thereby thrown out of employment and_ damaged.</p> <p>Held, that this judgment did not estop the defendant from denying that the plaintiff was entitled to recover the salary of an engineer, during the time for which it was sought to be recovered in this action, brought to recover the difference between his salary as an engineer and his pay as a machinist from October 7, 1875, to June 6, 1877.</p> <p>That if it did establish that the plaintiff was an engineer during that time, it was a bar to this action, as the plaintiff’s claim was an indivisible one and could not be made the subject of separate actions.</p>

<p>Statute of limitations — when, an action for a personal injury is founded on negligence— Code of Oidl Procediere, secs. 382, 383, 410 —1873, chap. 335, sec. 105 — when the statute begins to run on a claim, against the city.</p> <p>Tlie plaintiff brought this action against the city of New York to recover the damages sustained by reason of her slipping and falling upon ice or snow, negligently, carelessly and wrongfully suffered to be and remain upon a cross-walk in the city, by the defendant.</p> <p>Held, that the action was to recover damages “fora personal injury resulting from negligence ” within the meaning of section 383 of the Code of Civil Procedure, and must be brought within three years after the cause of action accrued.</p> <p>Section 105 of chapter 335 of 1873, provides that “no action shall be maintained against the mayor, aldermen and commonalty of the city of New York, unless the claim on which the action is brought has been presented to the comptroller, and he has neglected for thirty days after such presentation to pay the same.” Section 410 of the Code of Civil Procedure provides that where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.</p> <p>Held, that the statute of limitations began to run upon a claim against the city thirty days from the time when the demand might reasonably have been made to the comptroller.</p>

<p>Motion for judgment upon a verdict for tbe defendant, directed by. the court at circuit, subject to the opinion of the General Term.</p>

<p>Certiorari to review the action of the commissioners, by which they included in the assessment books and rolls for the year 1882 certain moneys held by the relator.</p>

<p>Appeal from an order made at a Special Term, denying a motion to require the plaintiff to furnish a bill of particulars.</p>

<p>Appeal from-an order made at a Special Term, denying a motion for leave to file a supplemental complaint bringing in a new party plaintiff.</p>

Appeal by Samuel MéMillan, a purchaser, from orders requiring him to complete the purchase of real estate sold by the receiver of the defendant under the order of the court.

<p>Appeal from an order or decree of tlie surrogate of the county of New York,'denying an application made by the'petitioner for payment of a judgment claimed to have been transferred to him.</p>

<p>Appeal from an order directing the defendant to pay to the plaintiff twenty dollars a week as temporary alimony during the pendency of this action, and the further sum of $250 to her attorney, as counsel fee.</p>

<p>Appeal from a judgment in favor of -the plaintiffs, entered on. a verdict- directed at the circuit.</p>

<p>Motions — where they may he made — Code of Civil Procedure, sec. 769 — filing of motion papers and order— General Buies of Practice, Mb. 3.</p> <p>Section 769 of the Code of Civil Procedure, prescribing the districts in which motions, upon notice, in an action in the Supreme Court, must be made, applies only to such motions as are made during the pendency of, or which relate to the action, and not to such as maj' be made in proceedings instituted after the recovery and entry of a final judgment therein.</p> <p>The papers used upon a motion, so made after the entry of the final judgment, together with the order made thereon, must, however, be filed in the office of the clerk of the county where the judgment was entered, within ten days, or the order may be set aside as irregular, under the Third General Rule.</p>

26, with interest from the 11th day of July, 1882, to the respondent Huerstel, out of an award, deposited by ordef of the court to the credit of this action, made in proceedings taken for opening and widening Morris avenue. The action was brought to recover the amount of an award for land taken by the city in opening a street.

<p>Appeal from an order made at a Special Term, in so far'as it awards costs to tbe plaintiff in excess of tbe costs of tbe motion, and from an order denying a motion for a retaxation of costs.</p>

<p>Negligence — liability of a master to a servant injured by the negligence of a fellow-servant — when the servant may rely upon the assurance of the master, that he is safe from all danger.</p>

<p>Lobbying — claims for services rendered in procuring the passage of laws — what must be shown before the court will allow them to be enforced,.</p>

The plaintiff and the Produce Bank, for and on whose behalf these actions were prosecuted, petitioned the court for an order substituting other attorneys in the place of their attorney, L. Liflin Kellogg, and for an order-that he turn over and deliver to the attorneys, so substituted in his place and stead, all of the papers in his hands pertaining to such actions.

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

Motion to compel the Canal Appraisers to make a return to a writ of cerüora/ri, theretofore is.sued to ¡the said Canal Appraisers, to review their decision denying a claim for damages made by the relator.

Controversy submitted upon an agreed statement of facts, in pursuance of section 1279 of the Code of Civil Procedure. The plaintiff, as the executor of the defendant’s wife, sought to recover certain moneys collected by the defendant, as the agent of his wife, for a legacy to which she had become entitled.

<p>Marriage of divorced wife during the lifetime of her husband — Sec. 6 of 2 JR. S., 139, declaring the effect of a ina/i'riage by one whose husband or wife has been absent and unheard from for five yeans, only applies where the relation of husband and wife still exists. ,</p> <p>Section 6 of 2 Revised Statutes, 139, providing that “if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority ” has no application to the case of persons who having previously been husband and wife have been divorced, and have consequently .ceased to be such any longer.</p> <p>Where a husband has procured a judgment divorcing him from his wife and ' forbidding her to marry again, a marriage contracted by her, even under the circumstances prescribed in the statute, is void, and its invalidity may be asserted by the héirs-at-law and next of kin of the second husband after his death.</p>

<p>Appeal from an order made at a Special Term, denying a motion to vacate an execution issued against the person of the defendant.</p>

<p>' Evidence — inspection of books kept by a witness — right of a pa/rty to examine them, in order to test the accuracy of the statements of the witness.</p> <p>In an action by tbe second indorser of a note against the makers, tbe defense was, that tbe note had been discounted for tbe payee by one McGeorge, at a usurious rate of interest. The plaintiff claimed that McGeorge was simply the broker of tbe defendants, and that the notes bad no inception in bis hands. McGeorge was called as a witness by tbe defendants and testified that be never discounted or owned tbe notes, and that be had sold them as tbe agent of tbe defendants, under an agreement by which be was to receive nine and one. quarter per cent as commission. His books were produced upon the trial, but tbe court refused to allow the defendants’ counsel to inspect them, or to compel tbe witness to examine them for the purpose of refreshing bis memory as to tbe transaction as to which be bad testified.</p> <p>Eeld, that this was error.</p> <p>That the defendants were entitled to know tbe.contents of the books, for tbe purpose of examining McGeorge as to them and ascertaining whether be would adhere to tbe evidence given by him, if be found it to be contradicted by tbe records which be himself bad made of tbe transaction.</p> <p>Semble, that as tbe books showed the real transaction between McGeorge and tbe defendants, they might be admitted as evidence in tbe action.</p>

<p>Evidence — exhibition of the plaintiff’s injured limb to the jury in an action for damages — the condition of the limb at the time of the tidal may he proved — Liability of a village for neglect to repair the sidewalks therein — when it will he deemed to have ■ - accepted a sidewalk constructed by a pndvate person.</p> <p>In an action to recover damages for injuries to tlie plaintiff’s leg, alleged to have been occasioned by the defendant’s negligence, it is not error for the court to allow the plaintiff to'exhibit his leg to the jury.</p> <p>Evidence as to the condition of the leg at the time of the trial may also be given.</p> <p>Although, under the general act providing for the incorporation of villages (sub. 25, § 8, title 8, of chap. 291 of 1870), it is for the trustees to determine where, ' when and how wide’sidewalks shall be constructed, and whether they shall be ‘ paved, planked or flagged, and an individual cannot, by constructing a side- .■ walk in front of his premises, compel the trustees to accept it or keep it in repair; yet, where an individual voluntarily constructs a sidewalk, not merely . for his own benefit, but also for that of the public, the trustees may, by acquiescence in his act for a sufficient length of time, or by other acts, show their acceptance of the sidewalk, and thus become bound to keep it in repair, and render the villageTiable to anyone who may be injured by their failure so to do.</p> <p>No distinct act. of adoption or acceptance of, the sidewalk need be shown, nor any positive recognition of it.</p>

John Gould died in 1874, leaving a last will and testament, which was admitted to probate by the surrogate of Albany county, December 14, 1874.

The action was for an assault and battery alleged to have been committed by the defendant, in attempting to remove the plaintiff from a seat in the Baptist church of Broadalbin. The defendant sought to compel the plaintiff to leave the seat he was occupying and take a seat further back in the chufch.

<p>Appeal from an order made at a Special Term, granting an extra allowance.</p>

The Empire Mutual Life. Insurance Company was organized under the laws of this State as a life insurance company on the 3d day of April, 1869, and immediately comjnenced the transaction of business.

<p>Insolvent corporation — appointment of a receiver — one subsequently recovering a judgment against the company has no lien upon its real estate.</p> <p>October 25, 1876, a receiver of tbe Continental Life Insurance Company was appointed in an action brought by one of its stockholders, on the ground of the company’s insolvency, and on November 4, 1876, a final judgment confirming such appointment was made. November 1, 1876, proceedings were commenced by the attorney-general founded upon the fact of the company’s insolvency, and alleging that the first receiver was appointed by consent and for the purpose of concealment. On March 81, 1877, a receiver was appointed i-n the said proceedings by the attorney-general, to whom the-successor of the first receiver who had been appointed in the stockholders’ action, transferred the assets of the company.</p> <p>The plaintiff, who had recovered a judgment against the company on February 26, 1877, upon a policy of insurance, claimed to be entitled to a preference over other creditors of the company, upon the ground that the company owned a large amount of real estate on which the judgment was a lien.</p> <p>Held, that.the claim was not well founded.</p>

The action was brought to recover damages for injury to the plaintiff’s woods, occasioned by a fire alleged to have been caused by the negligence of the defendant in the management and construction of its engines.

<p>Negligence — when the question should be submitted to the jury.</p> <p>On the 5th of February, 1879, about four inches of snow fell. The seventh was a fair day, the temperature being a little above freezing. On the evening of the seventh, the plaintiff’s intestate was directed by the conductor of one of the defendant’s trains to get upon it as a brakeman, at a point east of the Broadway crossing in the city of Albany. No one saw him get on the train and he was never seen alive again. ’ At about the place where the intestate was directed to get on the train the ground was trampled, as if by some one who could not catch his feet; from that point there was a mark northward, between the rails, as if something had been dragged there; along this mark were found the cap, gloves and overshoes of the intestate; a brake stick was found at the crossing and his dead body just north of it; the car wheels were bloody. At the trampled place was found, lying loose and uncovered upon the top of the snow, a broken rung, such as is used in the ladders placed at the sides or ends of freight cars; it was bent or dented; a portion of the break was rusty and seemed to be old, and a portion was bright as though recently broken. This rung was produced at the trial and exhibited to the jury.</p> <p>Held, that a verdict of the jury finding the defendant guilty of, and the intestate free from negligence, would not be disturbed.</p>

On the 4th day of May, 1882, tbe plaintiff commenced an action in’tbe Supreme Court to recover of the defendant money alleged to be due from it for goods sold and labor performed. Judgment in this action was taken by default on the 25th day of May, 1882, and entered in the Chemung county clerk’s office. After an execution had been issued upon it and returned unsatisfied, the plaintiff commenced this action for the sequestration of the property of the corporation defendant.

The action was brought to recover the statutory penalty for disobeying a duces tecum clause in a subpoena served upon the defendant. July 21, 1877, one Ira Carrington recovered a judgment against Henry J. Bitterly and William H. Williams, upon which proceedings supplementary to execution were instituted, and the judgment-debtors required to appear before a referee and answer concerning their property.

<p>Metra allowance — when it is to be computed upon the value of a corporate franchise — how the value of the franchise is to be determined.</p> <p>In this action, brought by a stockholder of the defendant, The Saratoga County Bank, the complaint alleged that the bank and its directors had committed unlawful and improper acts, and prayed for an injunction restraining the defendant from exercising its corporate rights, and from making any payments or transferring any of its property. Upon an application for an extra allowance made by the defendant after a dismissal of the complaint: •</p> <p>Held, that the subject-matter involved, upon which the extra allowance should be computed, was the value of the corporate franchise.</p> <p>' That the value of the franchise was, at least, as much as the value of the assets • of the corporation over and above all debts due from it.</p>

Appeal by William H. M. Sistare from so much of an order made at a Special Term, as disallowed his claim to a pi’eference over the depositors of the defendant bank. This institution was incorporated by chapter 368, Laws of 1852.

<p>Town bonding — chap. 907 of 1869, as. amended by chap. 925 of 1871 — the latter act does not vitiate proceedings taken prior to its passage — requisites of petition and of notice of hearing — the petition may be upon several sepa/rate papers— the judgment of the county judge cannot be attacked collaterally — when the taxpayers of a town a/re estopped from disputing the validity of bonds issued by the town officer's.</p> <p>On May 6, 1871, a petition to authorize the town of Andes to issue - its bonds to aid in the construction of a railroad, was presented to the county judge of Delaware county, as provided by chapter 907 of 1869. On May 12, 1871, an act (chap. 925 of 1871) was passed which took effect immediately. It amended the act of 1869 by requiring the petition to state that the petitioners constituted a majority of the taxpayers of the town appealing on the last preceding assessment-roll, not including those taxed for dogs or highway tax.</p> <p>Held, that the amendatory act was not intended to affect or destroy proceedings taken prior to the time of its passage, under the original act, and that as the petition was entirely proper and sufficient at the time it was presented, it was not invalidated by the subsequent passage of the amendatory act.</p> <p>The acts (sec. 1) require the petitioners to state that they desire to invest the bonds or the proceeds thereof, in the stock or bonds “ of such railroad company in this State as may be named in said petition.” The petition alleged that the petitioners desired to invest the proceeds of the bonds “in the stock of the Delhi and Middletown Railroad Company, an association formed in said county and State.”</p> <p>Held, that as the petition followed the language of the act it was sufficient, and that it was not necessary to allege that the company was a domestic corporation.</p> <p>Nineteen petitions were presented to the county judge, identical in form, except that three of them contained at the end, the following words “ on condition that said road is located by Pish Lake and Shavertown.” One of the papers was verified by one of the persons by whom itcwas signed.</p> <p>Held, that the act did not require the signatures to be appended to a single heading, and that the presentation of all the papers at the same moment, was to be deemed the presentation of a single petition for the issue of the bonds.</p> <p>That the insertion of the condition in three of the papers was expressly authorized by the act of 1871, and did not invalidate them.</p> <p>That it was for the county judge to decide from the evidence before him whether or not the verification appearing upon one of the papers extended to all of them, and that his decision thereon could only be reversed as provided in the act.</p> <p>It is not necessary that the notice, which the act requires the county judge to^ publish, should state the place where the hearing must be had; it is sufficient if it designates the day. In the absence of any designation of a place of hearing,^the place which the county judge ordinarily occupies for the transaction of business would be intended.</p> <p>Section 2 of the act, as amended in 1871, requires the county judge, on making his final determination in any case, to “forthwith publish notice thereof for three weeks, at least once in each week, in the same newspaper in which notice of such hearing was published as ordered.”</p> <p>Held, that the want of publication did not invalidate the judgment, though it lengthened the time for the allowance of a certiorari to review the proceedings.</p> <p>It seems that the acts make the decision of the county judge conclusive evidence of the regularity of the proceedings, and that objections to the sufficiency of the petition, and of the notice of hearing, cannot be raised in a collateral action brought to restrain the payment of interest on bonds issued in pursuance thereof.</p> <p>The acts make the judgment and determination of the county judge that the petitioners represent a majority of the taxpayers of the municipal corporation, as shown by the last preceding tax- list or assessment-roll, and a majority of the taxable property upon the same, conclusive evidence of these facts, and such judgment can only be reversed or modified as provided by the act, it cannot be attacked or impeached in a collateral action or proceeding.</p> <p>It seems, that when a municipal corporation is authorized, through the action of its taxpayers, to have appointed for ft agents or commissioners to issue bonds or evidences of indebtedness in its behalf, and when such agents or commissioners, who have apparently been so appointed in pursuance of the authority of law, do -issue in its behalf what purport to be the obligations of the municipality; and its taxpayers, by both negative and affirmative action, treat them as valid and binding obligations during a series of years, that then neither the municipality nor its taxpayers can urge any objection to their validity founded upon alleged irregularities in the appointment of such agents or commissioners^ or in the issue of the obligations. (Per Westbrook, J.)</p>

<p>Appeal from the judgment of the County Court of Eulton . county, affirming a judgment of a Justice’s Court in favor of the plaintiff. The action was brought by the plaintiff, as administrator of the estate of Eber C. Durkee, deceased, against the defendant, upon a promissory note held by the plaintiff, which purported to have been made by the defendant. The defendant denied the making and delivery of the note and pleaded payment.</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 a case and exceptions. The action was brought to recover damages for the death of the plaintiff’s intestate, which was alleged to have been caused by the defendant’s negligence.</p>

<p>Restitutio#, of possession, of .premises acquired under a judgment ..subsequently reversed — a provision therefor should be contained in the order of reversal — when it will be subsequently inserted therein.</p> <p>A judgment recovered by tbe plaintiff in an action of ejectment was reversed by ■ the General Term upon appeal, and a new trial was granted. It did not then appear that the plaintiff had been put into possession under his judgment, and nothing was said in the order of reversal about restitution or restoration of possession. Upon the new trial the defendant recovered a verdict, upon which he entered a judgment for costs, and inserted therein, without any direction from the court, a provision for the restitution of the possession of the premises to him.</p> <p>Upon an appeal from an order striking tliis provision from tire judgment:</p> <p>Held, that although the' mere verdict for the defendant did not authorize the insertion of. the clause directing restitution, yet, as the General Term would have directed such restitution to be made by their order of reversal, if their attention had then been called to the matter, it was proper now, upon the defendant’s application, to direct such a provision to be inserted in their order of reversal, and to reverse the order appealed from upon the payment of costs.</p>

<p>Appeal from an order made at a Special Term, granting an application made by certain persons to be made parties defendant to the above entitled action. The action was brought to foreclose a mortgage given by one John G. Lansing, deceased.</p> <p>Sanford Neilson and other persons, claiming to be creditors of the deceased, applied to the court to be made parties defendant to the action and to be allowed to defend it. The petition alleged, among other things, that the defendant Hannah E. Lansing, the widow of John, had, since his death, received a large amount of the rents and profits of the real estate and had not accounted and did not intend to account for the same to the heirs or creditors of said John G. Lansing, deceased; that the said amounts so received by her are far in excess of any amount due on the said mortgage or to grow due thereon. That the said Hannah E. Lansing is in collusion with the plaintiff in said action, and the other defendants to said action, to have said mortgage foreclosed for its full amount, as appears on the face thereof, and the property sold thereunder, so that.nothing can 'come to the creditors of the said John G. Lansing, by reason of her sale of the premises covered thereby, under and by virtue of an order of the surrogate. That the said Hannah E. Lansing is insolvent. ■</p>

<p>Supplementary proceedings — appointment of a receiver — where the order mustíe filed— Old Code, sec. 298 — when a person beneficially interested cam, be compelled to pay the costs — Oode of Oivil Procedure, sec. 3247.</p> <p>Section 298 of the old Code provided that whenever a receiver of the property of a judgment-debtor was appointed, the order should he filed in the office of' the clerk of the county where the judgment-roll in the action was filed, and recorded by the clerk in a book to he kept for that purpose. It further provided that, before the receiver should be vested with any real property of such judgment-debtor, a certified copy of saia oruer snouid be filed and recorded in the office of the clerk of the county in which any real estate of such judgment-debtor sought to be affected thereby is situated, and also in the office of the county in which such judgment-debtor resides.</p> <p>Meld, that when the judgment-debtor resided and the real estate sought to be affected were situated in the same county in which the judgment-roll was filed, that it was only necessary to have the original order filed and recorded therein, and that it was not necessary to have ■ a certified copy thereof also filed and recorded. (Bocees, J., dissenting.)</p> <p>• An order compelling a person to pay costs, as being the person beneficially» interested in the recovery, cannot be made until after a judgment against the plaintiff for the costs has been perfected.</p>

The action was brought by the plaintiff, an attorney, to recover the value of services rendered by him to the defendants, in respect to an action brought against a sheriff.

<p>Fraudulent conveyance — each heir-at-law of the grantor may maintain a sepa/rate action to set it aside — right of an heir-at-law, not a pa/rty to the action, to testify as to personal t/ransactions with the deceased— Code of Civil Procedure, sec. 829</p> <p>This action was brought by a daughter of one Thomas Meaghan, as one of his heirs-at-law, to set aside a conveyance made by him to her brother Andrew, on the ground that it was procured by the fraud and undue influence of her brother Robert. The plaintiff was the only one of the five heirs-at-law who sought to set aside the conveyance.</p> <p>Held, that as the plaintiff was not jointly interested.with the other heirs-at-law, and as her interest in the land was separate and distinct from, theirs, any judgment entered in the action could affect only the undivided one-fifth interest in the premises to which the plaintiff claimed to be entitled.</p> <p>That one of the other heirs-at-law, not a party to the action, could testify as to personal transactions or communications with the deceased tending to sustain the validity of the deed.</p>

<p>Appeal by Winslow M. Bell from tbe appraisal and report of commissioners appointed to appraise tbe damages to be awarded for tbe taking of certain land for railroad purposes, and from an order made at Special Term confirming tbe same.</p> <p>Tbe New York, West Shore and Buffalo Railway Company took proceedings to acquire title to lands in tbe county of Ulster, of which Clark Smith and others were the owners, and of a part of which tbe appellant, Winslow M. Bell, was tenant for a term of years, for tbe purposes of constructing its road. Commissioners were appointed and hearings were had before them. On the hearing before the commissioners there was no contest between the owners of the land and the railway company, they having agreed upon the price to be paid for the right of way. The only question litigated was how much of 'the $2,000 agreed to be paid' for such right of way should be allowed to the tenant, the appellant.</p>

<p>IMdence — a physician cannot testify as to knowledge acquired, while attending'.the deceased, from the general sight of the patient before examining him — “ Good health” — meaning of the term, as used in an application for a life insurance policy.</p>

<p>Evidence — Code of Civil Procedure, sec. 829 — a party only precluded, from testifying as to personal transaction with the deceased, when the representatives of the lattee' have given no evidence on that subject— he may give evidence• tending to contradict the evidence of the personal representatives, though it may relate to a personal transaction with the deceased.</p>

'Appeal'from a judgment in-favor of the plaintiffs/entered upon the trial of this actioAby the court without á jury.' The action was'brought to recover the possession of certain premises in the town of New Lots, which the defendant claimed to own by virtue of a deed from the comptroller of the State, executed in pursuance of a sale thereof for the non-payment of the taxes assessed upon the lands for the year 1869.

The premises were conveyed to Thomas F. Buckley and Mary Ann Buckley, his wife, by a deed dated November 25, 1879. The referee held that they took an estate as tenants in common and awarded one-half of _ the surplus to the husband and the other half to the heirs-at-law of the wife.

<p>Execution — application for leave to issue it, after the death of the judgment debtor— Oode of Gioil Procedure, secs. 1380, 1381.</p> <p>Where, after the expiration of one year from the time of the death of a judgment debtor-, leave to issue an execution upon the judgment is applied for, the permission of the Surrogate’s Court need 'not precede the application to the Supreme Court.</p> <p>Jio notice need be given of the proposed presentation of the petition to the Surrogate’s Court for leave to issue the execution. Upon the presentation of the petition, however, the surrogate must issue citations to all persons interested, unless they appear voluntarily, iu which case they will be bound by the decree, though no citations be issued.</p>

St. John, executrix, to the complaint in this action, and from the judgment entered thereon. William M. Kilduff died intestate, May 30, 1879. The plaintiff Boyle and one Erlacher were appointed by the surrogate of Kings county administrator and administratrix of his estate on July 10, 1879, and qualified as such. The plaintiff and Erlacher gave the usual administrator’s bond, Samuel R. St. John and Catharine Kilduff joining as sureties.

The action was brought in March, 1879, by the Globe Mutual Life Insurance Company, to foreclose a mortgage on certain lands in Queens county, executed by the respondent and his wife to that company, June 14, 1871, and payable July 1,1872 — the complaint asking for a judgment for deficiency against the respondent.

’ 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 damages 'or injuries done to the plaintiff’s premises, by the escape of water from a leader upon the house or the premises owned by the defendant Cleveland, as trustee.

In February, 1880, the plaintiff being about to take a journey to Galveston, Texas, went'to an office of the New York Central and Hudson River Railroad Company, the agent of the defendant, in Brooklyn, to purchase a ticket. He was shown two kinds of tickets, distinguished as the limited and unlimited ticket, each of which had coupons attached to it.

<p>Disorderly p&rsons and, gamesters — who a/re — Codie of Criminal Procedure, see. 899.</p> <p>The defendant kept a public saloon, to which persóns resorted for the purpose of playing pool and bagatelle. In some cases the losers were, by the terms of the game, to pay for the use of the apparatus, and in others for the drinks:</p> <p>Meld,, that the house was a public nuisance at common law, and that persons who resorted to it were gamesters within the meaning of subdivisions 4 and 7 of section 899 of the Oode of Civil Procedure.-</p>

, of Daniel Hegeman, deceased, and permitting him to resign. The testator died on May 24, 1867. By his will he gave and bequeathed to his wife, during her life, the use of all his property, both real and personal.

The relator was the owner of certain jeal estate in the city of Poughkeepsie, upon which' taxes for the year 1882 were duly assessed. The defendant was duly elected city attorney for the city, his term of office beginning January 1, 1882, and ending December 31, 1883.

<p>Turnpike company — crossing of its road by a railroad company — right of the latter to move the road and construct a new bridge for it— the right of the turnpilce company to collect tolls is not affected by the removal.</p> <p>A turnpike company was created by chapter 91 of 1806, and authorized to build a draw bridge across the mouth of a creek, now called Quassaic creek. The act also authorized the company, after the bridge had been constructed and accepted by certain officers, acting in behalf of the State, to erect a turnpike and gate upon the bridge and collect tolls from all persons using the same. After the bridge had been constructed and used for many years, a railroad company located its line so that its road crossed the creek at the place where the bridge was erected. It accordingly built a new bridge for the turnpike company about forty feet west of the old one, and constructed a new road, connecting the new bridge with the unaltered portions of the old road.</p> <p>Held, that power to construct the new bridge and road for the use of the turnpike company was- conferred upon the railroad company by section 24, and subdivision 5 of section 28 of chapter 140 of 1850, and by section 4 of chapter 19 of 1851.</p> <p>That the construction of the new bridge to the west of the old one and the removal of the road did not amount to a discontinuance of the old road and the opening of a new one, and in no way destroyed or affected the right of the company to collect tolls from all persons using its road and bridge, as changed by the railroad company.</p>

<p>Constitution — an act is not “local ” beacmse it may be applicable to but few subjects— Const, art. 3, sees. 18, 23 — chap. 554 of 1881 does not conflict with them.</p> <p>Chapter 554 of 1881 conferred upon boards of supervisors power “to authorize in any county containing an incorporated city of one hundred thousand inhabitants or upward, when, any territory within such county and beyond the limits of such city has been mapped out into streets and avenues, in pursuance of law, the establishment of a plan for the grades of such streets and avenues, the laying out, opening, grading, construction, closing and change of the line of any one or more of them; to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, and fixing assessment districts,” etc.</p> <p>Held, that as the act applied to all counties containing an incorporated city of 100,000 inhabitants or upwards, it was not a local act within the meaning of section 18 of article 3 of the Constitution prohibiting the passage of local bills providing for the laying out or opening of roads, highways or alleys, or of section 23 of the same article requiring powers of local legislation to be conferred upon boards of supervisors by general laws.</p> <p>That although such power- was not expressly conferred by the act, the Supreme Court had jurisdiction to entertain an application for the appointment of commissioners to estimate and appraise the damages and benefits eccasioned by the laying out of a street directed to be opened by the board of supervisors as provided in the act.</p>

<p>Appeal by Willimina-B. Neilly, administratrix of Sarah Byron, deceased, from an order by the surrogate of Rockland county disallowing a claim presented by her.</p>

<p>Constitution, art. 6, seo. 15 — jurisdiction of the County Court — chap. 480 of 1880 is invalid — effect of amending a section of an act after its repeal.</p> <p>Section 1 oí chapter 467 of 1870 conferred, upon County Courts jurisdiction over civil actions in which, the relief demanded did not exceed $1,000. This section was repealed by chapter 417 of 1877. The whole act of 1870 was repealed by chapter 345 of 1880, which took effect September 1, 1880. By chapter 480 of 1880 the said first section was amended so as to give the County Court jurisdiction when the relief demanded did not exceed $3,000.</p> <p>Held, that chapter 480 of 1880 must be considered as having revived the repealed section of chapter 467 of 1870, or as having force and validity as a new'law.</p> <p>That the jurisdiction conferred upon the County Court by the act of 1880 exceeded the limit prescribed by the fifteenth section of the sixth article of the Constitution, and that the act was therefore invalid and void.</p>

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of this action by tbe court without a jury.</p> <p>Tbe defendant Richmond was detained, at tbe expense of tbe county, for nineteen months in the Kings County Insane Asylum, he having been admitted and classified as a pauper patient. After he had been there.for about eighteen months, the Board of Charities Commissioners ascertained that he had over $2,000 on deposit with the co-defendant. It thereupon, by resolution, directed that such measures be taken as may be necessary for the purpose of reimbursing the county for the expense it had incurred in his support and maintenance.</p> <p>The county, in virtue of the provisions of sections 8 and 9 of chapter 174, Laws 1844, has a lien or claim on “the wages, money on deposit or other personal property ” of a person admitted as.a pauper into any of the county institiitions.</p> <p>Prior to his reception into the asylum, two physicians had eertified under oath that they had personally examined him and that he was insane and a proper person for care and treatment under the provisions of chapter 446, Laws 1874.</p> <p>It was claimed by the defendant that the act of 1844 was uncon-' stitutional and that it had been impliedly repealed by the act of 1874, chapter 446.</p> <p>The plaintiffs contended (1) that the question as to the legality of the detention of Richmond in the asylum by the medical superintendent must be governed by the act of 1874, which is a substitute for all prior enactments relating to the same, subject, and the regularity of the commitment thereunder could not be controverted by the defendant; (2) that the rights of the county, which is a body corporate and a political-division of the State, could not be prejudiced by the acts of officials intrusted with the admiili&tration of the lunacy laws; that these officials are not, in a legal sense, the servants or agents of the county, but public officers selected in the manner prescribed by statute law, from which they derive all their authority.</p>

The plaintiff having caused certain real estate owned by him to be conveyed to his wife during her lifetime, brought this action after her death against her nieces and the children of deceased nieces, to enforce a resulting trust, which he claimed existed, and prayed that he might be fully restored to the ownership and possession of the property, and that the full title thereof might result back to and vest in him in fee simple.

CeetióRAbi to review the action of the fire commissioners, in removing the relator from his position as assistant superintendent in the fire department of the city of Brooklyn.

This action was brought in a Justice’s Court in Brooklyn. It was tried and judgment given ‘for the defendant, and in due time plaintiff took an appeal from the judgment. In so doing his proceedings were as usual, and regular, except that the notice of appeal was not subscribed by any person. It was, however, indorsed “Notice of Appeal. 0.

<p>Executor — liability of, for money paid to 7m coexecutor and misappropriated by him.</p> <p>The appellant, Storm, paid to his coexecutor Haight, the sum of $1,200 in good faith, and for the purpose of having him discharge therewith a legacy of that' amount given to Haight’s wife. At the time the payment was made, Haight was reported to he wealthy and Storm believed him to be perfectly solvent. Haight having misappropriated the money, the surrogate, upon Storm’s accounting, charged him with it.</p> <p>Eeld, that this was proper; that Storm parted with the possession of the funds of the estate at his peril, and was answerable for the acts of his coexecutor in the same manner that he would have been for the acts of a stranger to whom he might have intrusted them.</p>

The complaint alleges that the defendant levied an assessment for a local improvement, known as grading and paving Halsey street, upon the lands of plaintiff, which was valid upon its face and constituted a lien upon said lands, but was actually illegal and void, by reason of facts dehors the record.

<p>Appeal from a judgment in favor of the plaintiff, entered upon an order sustaining a demurrer to the answer, and granting leave to the plaintiff to issue execution upon the judgment.</p> <p>The action' was brought to recover a legacy.</p> <p>The court at General Term said: “No doubt this action was prematurely brought, unless the will contains an express direction for the payment of the legacy to Theodore Kolyer within one year after the death of the testator. (2 R. S., 90, sec 43; Code Oiv. Proc., sec. 1819; Brad/ner v. Faulkner, 12 N. Y., 474; Wheeler v. RutJwen, 74 id., 431.) The will bequeaths to each of several grandchildren of the testatrix named therein, .certain pecuniary legaciés, and also bequeaths to her son, Theodore Kolyer, the sum of $2,000, ‘ which sum (the will proceeds to direct) shall be kept to his refusal in the hands of my daughter, Mrs. Sarah Jane Bennett, and paid to him only in the way and manner as he may request.’ The will then directs as follows: ‘All these before named sums of money bequeathed to my grandchildren shall be paid to each and every one by my hereafter named executor at the elapse of six months after my death; but the money bequeathed to my son Theodore shall be paid over to my daughter Sarah Jane Bennett and by her properly invested to stand to his refusal as formerly stated.’</p> <p>“ It will be readily perceived that the sole object of this clause was to designate the time for the payment of legacies. The naming of Theodore therein, we think, shows the intention of the testatrix that the time so fixed should apply to and govern the legacy to him as well as the other legacies. The language employed could have been intended to make no other qualification touching the legacy to Theodore, than that it should be paid to her daughter and not to the legatee personally. "Without such qualification, the direction might have been construed as a change of the previous clause whereby the legacy to him was bequeathed, and a repetition of the direction for its payment to her daughter can have no other significance.</p> <p>“ Unless the testatrix intended to prescribe a time for the payment of all the legacies, the insertion of Theodore’s name therein was useless and nugatory.</p> <p>“We think, however, that the court erred in granting leave to the plaintiff to issue execution for the enforcement of the judgment, and that the judgment should be modified by striking out the clause which grants such leave. Inasmuch as the defendant is acting in a representative capacity, he should have leave to plead anew.”</p>

<p>Public market — lands may be taicen for it, by the exercise of the right of eminent domain — the exercise of such right is legislative, not judicial — what evidence is required of am. inability to agree as to price — what is a public market.</p> <p>Land may be taken by tlie exercise of the right of eminent domain for the establishment of a public city market.</p> <p>The necessity of taking private property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature either directly or by delegating the power to public agents, proceeding in such manner and form as it may prescribe.</p> <p>It is not essential to the definition of a public market that it should be a place open to all persons for the sale of all commodities. It may he a public use although limited to the sale of a particular kind of produce.</p> <p>Where commissioners are authorized to agree upon a price for land to be taken for a public use, and in case they cannot agree with the owners to take proceedings to acquire it by the exercise of the right of eminent domain, it is sufficient evidence that the price cannot be agreed upon, that the owners have been requested to state the lowest prices at which they were willing to sell; that such owners have stated such prices, and that the commissioners refused to purchase the land at such prices.</p> <p>Semble, that where an act provides that a proceeding to take land by the exercise of the right of eminent domain shall be taken by the mayor, comptroller and three aldermen of a city, the proceedings on behalf of the city for such purpose are not vitiated or affected by reason of the fact that the terms of office of such persons have expired, in the absence of any application by the property owners who complain, to have their successors in office substituted in their places.</p>

Appeal by the defendants from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court before which the trial was had.

Appeal by tbe defendants from a judgment, entered upon the verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of the court before which the action was tried.

Appeals from orders of tbe Special Term, granting motions to quash and dismiss the petitions and orders to show cause of the appellants, and denying the application of the appellants for peremptory writs of mandamus.

<p>Appeal from an order of the surrogate of the county of New York, dismissing ail proceedings to contest .the probate of the last will and testament of Trust Felix Gouraud, deceased, upon allegations filed within one year after its admission to probate.</p>

<p>Surrogate’s Oowri — equitable powers of, to requvre the books and papers of an estate to be opened to the inspection of a litigant — when such power will be exercised.</p> <p>An application made to a surrogate to exercise the equitable authority of the court and to require a temporary administrator to deposit in the court the books and papers of the estate, and submit them to the investigation of a party interested in a litigation as to the admission to probate of the will of the deceased owner, will not be granted upon the simple statement that the temporary administrator is hostile in interest to the petitioner, and does not afford her the same opportunity to search for letters, books and papers which might be favorable to her side of the case, which he gives to her adversary, it not being affirmatively alleged that any such documents so favorable to her interests exist.</p> <p>Semble, that should the petitioner designate any paper, document or hook containing evidence material to the decision of the issues involved, the' court has power to make such an order.</p>

<p>Alimony and counsel fees — not aUowed pendente lite where the plaintiff has adequate pecunim'y resources of her own— a reference to ascertain h&t' resources is proper. .</p> <p>Where it seems reasonably certain from the affidavits on a motion for alimony and counsel fees, pending an action for separation from bed and board, that the wife, the plaintiff, is not destitute of the means of livelihood, nor of means sufficient to carry on her action, the court should not direct the husband to pay such alimony and counsel fees.</p> <p>Semble, that in such a case the court might, on the plaintiff’s application, order a reference in order to ascertain definitely the plaintiff’s resources.</p>

The testator died at the .city of New York, on the 5th of November, 1878, leaving a last will and téstament, bearing date the 22d day of August, 1877, of which the following is a copy, excepting the formal paragraphs.. “ First.

<p>Appeal from an order of the Special Term denying plaintiff’s motion to strike an alleged amended answer from the judgment-roll.</p>

<p> The extension of time of payment of a debt, is a valuable consideration for the 1/i'ansfer of an accommodation note. </p> <p>One who has loaned his note to another for the latter’s accommodation, and subsequently when his note becomes due receives the note of a third person for a portion and cash for the balance of the amount due on his own note, and thereupon pays his own note, is a holder for value of the note of such third person.</p> <p>By receiving such new note he has extended, by the time which it has to run the time for the payment of his debt, and such extension of payment is a valuable consideration for the transfer of such new note to him.</p>

Cross-appeals from a judgment of tlie Special Term, in favor of the plaintiff, for a portion of the relief demanded in his complaint. This action was brought to modify and reform the lien or judgment upon the property benefited by the widening and straightening of Broadway, between Thirty-fourth and Fifty-ninth streets, in the city of New York, and also the unpaid lien or judgment against the property of the plaintiff therefor.

Appeal by the plaintiffs from a judgment recovered on a trial at the Special Term.

<p>Cross-appeals from a judgment, entered on the report of a referee.</p>

Appeals by both, plaintiff and defendants from a judgment of the Special Term construing the will and codicil of Burr Wakeman, deceased.