Volume 36 — New York Supreme Court Reports

<p>Eminent domain — measure of damages foi' land taken by a railroad company— the report of the commissioneo's cannot be affected, by a certificate, stating the rule adopted, in estimating the damages, subsequently made by one of them.</p> <p>A railroad company took proceedings to acquire title to a portion of four different parcels of land owned by one Haskin, one of which, containing about 223 acres, was called the Home Farm. It was used for raising blooded horses and fitting them for the market. The line of the proposed road crossed a half-mile track which had. been constructed upon it by Haskin to be used in his business. Testimony was received against the company’s objection and exception as to what,</p> <p>. in the opinion of the witnesses, would be the damage to the farm, as a stock farm, to hav'e the track destroyed, and as to “the value of the track to the Home Farm, as a stock-raising :farm, taking into consideration the stock upon it and its present use.”</p> <p>Held, that the evidence was improperly admitted.</p> <p>That the measure of the owner’s damages was the cost of constructing another training track upon his farm and not the damages (to which such testimony woiild appear to relate) which he would sustain if the stock, which he was then raising and training, were lost and this branch of his business destroyed.</p> <p>The validity of the report of commissioners appointed to appraise the damages resulting from the taking of land for railroad purposes cannot, after it has been signed and filed, be affected by a certificate signed by one of them setting forth the rule adopted by them in estimating the damages.</p>

<p>Trustee — not entitled to commissions on principal, upon his wlunta/ry resignation — right of, to commissions upon income — when he is not deprived of them by the fact that the income was received by the beneficiary directly — interest upon the amount of commissions not drawn-— costs upon his application for leave to resign.</p> <p>One of three trustees applied to he allowed to resign on account of the impaired state of his health. It appeared that the petitioner’s state of health was not such as to absolutely disqualify him from discharging the duties of his trust. On the contrary, it appeared that he attended to a large amount of other business, some of a trust nature, and it was to be inferred from his testimony that he desired to be relieved from this trust in order that he might be better able to attend to the others.</p> <p>Held, that he should not be allowed commissions upon the principal of the estate which had been received and held by him.</p> <p>Upon the petitioner’s appointment it was agreed between him and his two co-trustees, who were beneficially interested in the trust, that the trust estate should be held and managed by the trustees, for the purposes of the income, rents, issues and profits thereof, so that each of the two trustees who were beneficiaries should have the rents, etc., of a certain specified portion of the estate. It was also agreed that the interest upon the incumbrances on the trust property, and all taxes,' etc., should be paid from the income so to be received. The property was subsequently so divided, and the income was so received by the trustees beneficially interested.</p> <p>Held, that this agreement dfd not deprive the petitioner of his right to receive commissions upon the income of the trust estate.</p> <p>That he was entitled to receive his commissions upon the gross amount of each year’s receipts of inceme to be computed for each year separately at the statutory rates.</p> <p>That he was not entitled to interest on his yearly commissions, as he did not demand them until he applied for leave to resign.</p> <p>That it was proper for the court to direct that neither party should have costs of the proceedings, and that the petitioner should pay the fees of the referee.</p>

<p>Special T&rm — adjournment of, to clumbers of the justice — contested motions cannot be brought on at the term held at chambers except by consent— Code of Oivil Procedure, seas. 37, 2.39.</p> <p>Contested motions requiring notice cannot be beard at a Special Term adjourned by tbe justice bolding it to bis chambers, unless by tbe consent of all the parties.</p> <p>Tbe fact that tbe order adjourning tbe court to tbe chambers of tbe justice stated that it was “ for ex parte business only,” does not prevent tbe justice from hear- ' ing, if be sees fit, contested motions brought on by consent.</p>

<p>Supplementary proceedings — requirements of an execution issued upon a judgment recovered against an assignee for the benefit of creditors— Code of Civil Procedure, sec. 1871 — the assignee may be examined although proceedings for the settlement of 7m accounts are pending.</p> <p>During the pendency of an action brought by the plaintiff against Felt & Bell, as partners, upon a note given by them, they made a general assignment for the benefit of creditors to one Dorr. Thereafter Dorr was, upon his own application, made a party defendant and allowed to answer. The plaintiff recovered a judgment against Felt & Bell, and Dorr, as assignee, for damages and costs. Subsequently, upon an affidavit showing, among other things, that an execution issued “against the property of the said George H. Dorr, as ■ assignee,” had been returned unsatisfied, an order requiring him to appear and be examined in supplementary proceedings was granted.</p> <p>Held, that the order should be vacated on the ground that it did not sufficiently . appear that the execution had directed the sheriff to satisfy the judgment out of the trust property held by the assignee, as required by section 1371 of the Code of Civil Procedure.</p> <p>That the fact that proceedings for the settlement of the assignee’s account were ponding before the county judge of a county other than that in which the order was made, would not have prevented the granting of the order had the issue and return of a proper execution been shown.</p>

<p>One should not act as a referee in a case in which the attorney who appears for one of the parties is at the same time acting as referee in another case in which the first named referee is an attorney for one of the parties — waiver of objection — what constitutes. - ' ,</p> <p>Where it is shown that each of two attorneys (appearing, respectively, for different parties interested in two different actions, in each of which a reference has been ordered) has the cause of the client of the other in his hands to .decide as a referee, a due regard for judicial propriety and for the pure administration of justice requires that upon the application of the opposing party in either action, made in due season and under circumstances-showing that he has not-waived his right to object, the court should vacate the reference and set aside the report, if one has been made.</p> <p>The question whether or not the referee has been influenced, or is likely to be influenced, by the relation adverted to is immaterial.</p> <p>A party cannot however, after having permitted the reference to proceed and taken the chance of success, with full knowledge of the existence of the relation, move to set aside an adverse report upon that ground.</p>

Cross-appeals from a final judgment, entered on a decision of the court rendered upon a trial at the Chautauqua Special Term.

<p>Evidence — admissibility of declarations of an injured person as pa/i’t of the res gestae — evidence as to the pecuniary condition of the deceased’s mother.</p> <p>About midnight of July 1, 1876, a train of the defendant’s freight cars passed Kent street, in the city of Kochester, going east.. It was followed, at a distance of about fifty feet, by a single engine and a tender running backwards. The plaintiffs intestate was struck at the crossing by either the train or the engine and killed. It appeared that immediately after the engine passed the deceased was found lying on or near the track mangled and bleeding. He was at once picked up and carried to the sidewalk. Some twenty or twenty-five minutes thereafter his brother arrived and conversed with him. Both the deceased and his brother were deaf mutes and the conversation was carried on by motions of the hands.</p> <p>Upon the trial of this action, brought to recover damages for the negligent killing of the deceased, the brother was allowed, against the defendant’s objection and exception, to answer the question: “ What did he (the intestate) tell you? ” He answered it by saying “ John said he got hit; John said there was a long train; that he stood waiting for it to go, and an engine followed and struck him.”</p> <p>Held, that the propriety of allowing the question to be put rested to a great extent in the discretion of the trial judge, and that under the peculiar circumstances of this case no such plain error or abuse of discretion was shown as required the reversal of his decision.</p> <p>That if any part of the answer was objectionable the remedy of the defendant was to move seasonably to have it stricken out.</p> <p>It appeared that the deceased, although of age, had voluntarily contributed to the support of the plaintiff, his mother.</p> <p>Held, that evidence to show that she had no means of her own and needed pecuniary aid was properly received as bearing upon the question of the possible continuance of her son’s assistance if lie had lived.</p>

Motion by the defendant for a new trial, on exceptions taken at the Monroe Circuit and ordered to be heard in the first instance at the General Term. The action was brought by the plaintiff, as the assignee of one Curtis, to recover an amount due for services rendered by him as a laborer or servant to a corporation between April 12, 1875, and November 1, 1878.

<p>Election of remedies — when two remedies arre not inconsistent.</p> <p>The defendant-sold to the plaintiff a bond and mortgage, payable in installments, and guaranteed the payment thereof. The plaintiff sued the defendant on his guaranty for each of the first two installments of interest as they matured, and obtained judgment in each action, but could collect no portion thereof. At the time of commencing the second action he brought this one to recover damages for fraud, alleging that the securities were worthless and claiming to recover their full amount.</p> <p>Held, that the remedies which the plaintiff sought to pursue were not inconsistent, and that the bringing of the former action did not prevent the prosecution of this one.</p>

Appeal by the plaintiff from an order made at a Special Term substituting James Gr. Doty, in the place of Reuben II. Farnham, as plaintiff; and by the defendant and one James Gr. Doty, the present supervisor of the town of Attica, from so much of the order as ■ staid proceedings in the action until the next annual town meeting.

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

The plaintiff was nonsuited at tlie Jefferson County Circuit, to which the plaintiff excepted, and the exception was directed to be heard at the General Term in the first instance. The action was originally commenced in the name of Margaret A. Doane, who. is now deceased, and the plaintiff has been substituted as her personal representative. The action was commenced February 9, 1880, and came on to be tried in December of the same year.

The questions presented for the •consideration of the court arise- upon a bill of exceptions, from which it appears that in November,. 1869, one Lewis Paddock executed and delivered a bond to one Norman Parker for the payment of the sum of $1,700, and gave a mortgage upon real estate to secure its payment, which mortgage was recorded in the Cayuga county clerk’s office on the 7th of April, 1870.

Cross-appeals from a judgment, entered upon the trial of this action at a Circuit and Special Term held in Wyoming county in October, 1881. Held: for an equal amount in the common stock of the railroad.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.</p> <p>This action is brought upon an agreement of August 13, 1875, executed by the plaintiffs of the one part and the defendant, George J. Magee, of the other. Magee, on the 31st of August, 1875, assigned in writing the contract to the defendant, the Syracuse, Geneva and Corning Railway Company,, which instrument recited as a fact that the Syracuse, Geneva and Corning Railway Company, by resolution of its board of directors, had assumed said contract, and agreed to carry all its provisions into effect, except a portion thereof relating to freight tonnage. The Sodus Bay, Corning and New York Railroad Company (not the defendant) was organized in 1870 for the building of a railroad to extend from Corning, Steuben county, through Savona, Bradford and Penn Yan, Geneva and Lyons, to Great Sodus Bay, in Wayne county, N. Y., a distance of eiglity-six miles, and in the year 1874 it became insolvent.</p> <p>At the time of the agreement of August thirteenth, the plaintiff, Munson, was a director and the president and a holder of the first mortgage bonds of the old railroad. The Syracuse, Geneva and Corning Railway Company, one of the defendants, was organized August 26, 1875, for the purpose of operating a railroad from the village of Geneva, in the county of Ontario, N. Y., through the counties of Yates and Schuyler, to the village of Corning, in the county of Steuben, being about sixty miles. Munson became a director of the new railroad and was its president from its organization down to May 10, 1877.</p> <p>This action is brought for the specific performance of the agreement of August 13, 1875, by which the defendant Magee agreed to deliver to the plaintiffs, for the property, rights of way, franchises and interests of the old railroad, bonds of the new railroad thereafter to be organized, amounting to fifty per cent and the unpaid interest on $241,000 of the bonds of the Sodus Bay and Corning Railroad • Company (to which name the original railroad had been changed), the old bonds being either owned or controlled by the plaintiffs. The action is also brought upon the agreement of the defendant, the Railway Corporation, to carry into' effect the prior contract of Magee.</p>

<p>Appeal from the decision of the State board of audit, dismissing the claim of the Cerbat Mining Company for excessive taxes alleged to have been paid-by-it in 1881jand by two other.companies, whose claims had been assigned to it.</p>

Appeal by Leander Hine from an order of the Onondaga Special Term, denying an application for an order directing the receiver to pay the amount of a loss arising under a policy of insurance issued May 30, 1877. The receiver was appointed January 6, 1878. March 2, 1878, the insured died intestate, leaving a widow and seven children. On April 17, 1878, the property was destroyed by fire.

Controversy submitted under sections 1279, 1280 and 1281 of Code of Civil Procedure.

<p>Iteceiver — the court may appoint one to receive renta and profits in a foreclosure action— Code of Civil Procedure, sea. 713.</p> <p>Where an action has been commenced to foreclose a mortgage the court has power, under section 713 of the Code of Civil Procedure, to appoint a receiver of the rents and profits of the mortgaged premises, when it appears that the premises are an inadequate security for the amount due and are deteriorating in value and that the mortgagor is insolvent.</p> <p>The mortgagee has an “ interest in ” the rents and profits of the mortgaged premises, within the meaning of that term as used in the first subdivision of the said section.</p>

By the order of August 30, 1882, defendant was “forbidden making or suffering any transfer or other disposition of or interference with the property of said Charles W. Sears, not exempt from levy and sale by virtue of an execution, until further direction in the premises.” The restraining order was served personally August 31, 1882.

Plaintiff recovered $361, and an account was stated between George L. Marvin and Le Grand Marvin, and the title to certain real estate was determined to be in George L. Marvin. The referee received $3,610 for fees. The referee says in his affidavit, viz;: “ A more tedious, vexatious and exasperating litigation I think I may safely say was never known. The amount involved was large, being at least $100,000, and the question is difficult and extraordinary.

<p>Public nuisance — a dangerous wall on private property, remote from a street, is not— power of the common council of a city to abate nuisances and, provide for the removal of dangerous buildings — when the city is not liable to one injured by its neglect to exercise such powers.</p> <p>On January second a brick building on Genesee street, in the city of Syracuse, was burned. The building extended back from Genesee street to the tow-path of the Brie canal, a distance of about 160 feet. It was from forty-six to fifty feet high, and its eastern wall, which was independent of the wall of the adjoining building, was a foot thick. The roof, joists, flooring, timber and all the supports of the wall were destroyed by fire. The wall remained standing, but it became sprang and gradually bulged towards the east. It was so situated that the wind struck the rear portion of it so forcibly as to cause it to sway. The building adjoining it on the east was of the same height in front but was only twenty-two or twenty-three feet high in the rear, and at one place near the center it was only one story high. At this place was a skylight to light the dining-room of a restaurant on the first floor. On January ninth the rear portion bf the wall of the burned building fell, crushed down through the skylight of the restaurant and killed the plaintiff’s intestate and several others who were seated there at a table dining.</p> <p>The charter of the city of Syracuse'provided that “the common council shall have power to make, establish, abolish, modify, ordain, amend or repeal ordinances, rules, regulations and by-laws for the following purposes: To abate, destroy and remove nuisances; to control and regulate the manner of erecting brick or stone walls for buildings and the thickness of the same; to prohibit or require the removal of any such as they may deem dangerous to life; to raze or demolish any building or erection which by reason of fire or any cause may become dangerous to human life or health, or may tend to extend a conflagration.”</p> <p>In this action, brought against the city to recover the damages occasioned by the death of the plaintiff’s intestate:</p> <p>Held, that as the dangerous wall was remote from the public street it was not a public nuisance.</p> <p>That the duties of the defendant’s common council in deciding as to the removal of dangerous buildings and walls were judicial in their nature, and that the city was not liable to a person injured by its failure to exercise them.</p> <p>That the plaintiff was not entitled to recover.</p>

<p>Appeal from a judgment, entered upon the verdict of a jury in in the Court of Sessions of Cayuga county.</p> <p>The defendant was convicted and sentenced to pay a fine of $150 and to an imprisonment of sixty days, for a violation of .the excise law in selling lager beer without a license to be drank on his premises.</p> <p>The court at General Term said: “ In Rau v. The People (63 N. Y., 279), the Court of Appeals said: £ Hitherto the courts have not been willing to take notice that lager beer is intoxicating, but have submitted the question when controverted to the jury, to be determined upon the evidence. The plain and obvious intention of the section is to prohibit the sale of all intoxicating liquors, and where the liquors are not such as are known to the courts to be intoxicating, their character as intoxicating or not must be determined, as it was in this case, upon competent evidence as a qestion of fact.’</p> <p>“Following the rule we have quoted the Court of Sessions in this case received evidence tending to show that lager beer is intoxicating, and evidence tending to show that the lager beer sold by the defendant was not intoxicating, and then carefully and fully submitted the question of fact to the jury, and they have found against the defendant, and after reading the evidence in the appeal book, we feel prepared to say the evidence fairly warranted the verdict.</p> <p>“We agree with Wells, J., when he says, in Commissioners of Excise v. Taylor (21 N. Y., 178), ‘ that but one safe and sensible line of distinction can be drawn between the different kinds of liquor containing alcohol in order to determine upon which of them the statute was intended to operate, and-that is between those which are capable of causing intoxication, and those containing so small a per cent-age of alcohol that the human stomach cannot contain sufficient of the liquor to produce that effect.’</p> <p>“ Of course we are not unmindful of the fact that different liquors- and different quantities will produce different effects upon different persons, and that the effect upon persons may depend upon their habits, their health, their age and constitutions. In the case before us the trial court had all these considerations before it and many others, and was called upon to submit, as it properly did, the case to the jury.</p> <p>“ Hull, as a witness called for the people, and who said he had drank lager beer at different times in the defendant’s garden adjoining defendant’s house, was asked if he had ever seen persons £ intoxicated on lager,’ and the defendant made a general objection thereto, which was overruled by the court.</p> <p>“ It is now urged that the inquiry ought to have been confined to-the beer sold by the defendant.</p> <p>“ If the trial court had been asked to thus confine the inquiry, we cannot say that it would not have complied, and we can say that the point now taken should have been raised at the trial. (Salisbury v. Howe, 87 N. Y., 134.) Nor was it error to allow Dr. Hamlin to give an answer to the question, viz.: ‘ In your opinion can the human stomach contain enough of beer containing 2Ty¡, per cent of alcohol by weight to ordinarily or commonly intoxicate ? ’</p> <p>“ The objection was general and the evidence tended to support the issue. The case of Manke v. People (17 Hun, 414) is distinguishable, for there the question was objected to upon the ground £ that the opinion of the witness was incompetent and improper, and on the ground that the subject was not one of science or skill.’</p> <p>“Nor was it error to exclude the offer to show by witness •Gardner, a revenue officer, Ghat he told all applicants that they should pay twenty-five dollars, and that it' was the universal practice to take the twenty-five dollar license instead of the twenty dollar one.’ It was too broad; it was immaterial what the revenue officers told other appellants, and it was immaterial what the £ universal practice ’ was in that regard, nor was the custom for parties who ■only sell ale or beer to obtain the twenty-five dollar license pertinent or useful evidence; it was properly excluded. {BelUnger v. Gray, 51 N. Y., 610.) A. violation ofva statute cannot be justified by custom. {Fellows v. Mayor, 17 Hun, 254.)</p> <p>“Defendant was sworn in his own behalf, and gave evidence material to the issue, and in the course of his cross-examination he was asked if his license had been taken away, and he replied it had; and he was then asked upon what charge the license had been taken away, to which question an objection and exception were taken. The witness answered, ‘ for violation of the excise law,’ .and he was then asked,£ "Wasn’t the charge for selling on Sunday ? ’ to which the defendant’s counsel objected and excepted, and the witness answered, ‘ I think it was; it was two years ago, I think.’ A revocation of a license is provided for by section 4 of chapter •549, of the Laws of 1873, and the proceedings for such revocation .are in the nature of a trial {People ex rel. Better v. Wright, 3 Hun, 306), and the accused is entitled to notice. The question was proper in a cross-examination. {People v. Grapo, 76 N. Y., 288; Grow v. Ganioeh, 15 Week. Dig., 259; Code of Civ. Pro., § 832, and amendment of 1879.)</p>

The firm of William H. Gregg & Co. was composed, of William H. Gregg, who conducted the business, and Henry W. Beadle, who was a private banker. On the 22d of March, 1878, Beadle, being insolvent, made an assignment of all his property of every nature to Hall & Gillett, in trust for the payment of his debts. His individual property was insufficient to pay his individual debts.

This is an action upon a bond given in bastardy proceedings on the adjournment of the examination. The first hearing had been had on the twenty-eighth day of May. The proceedings were adjourned to June seventh. On that day the hearing proceeded through the whole day, and the defendant therein was present. The hearing was then adjourned by consent to June twenty-sixth, on which day the defendant in the proceedings did not appear.

<p>Appeal from an order made at a Special Term directing the plaintiff to submit to an examination of her person by physicians selected by the defendant, under the supervision of a referee, to ascertain whether she was suffering as she alleged from injuries caused by the alleged negligence of the defendant.</p> <p>The action was begun November 4,1882. The complaint alleged thatthe plaintiff was injured in July, 1881, while riding as a passenger on the defendant’s railroad by reason of a collision of the car she was in, with other cars, caused by the negligence of the defendant and its employes.</p> <p>The defendant claimed that no serious, if any, injury was received by her, and that she was either feigning sickness or was suffering from a disease not caused by the alleged accident.</p>

<p>Ceetiobari to review a decision of tlie canal board affirming an award made by the canal appraisers.</p>

The action was brought by the plaintiff against the defendants’testator to recover a debt owing to tbe plaintiff from The Olcott Iron Manufacturing Company. The plaintiff had recovered a judgment against the company upon notes given by it to him to secure the same indebtedness in October, 1875, for services alleged to have been rendered to it in pursuance of a contract made in May of that year. The company was incorporated by chapter 401 of 1867.

<p>Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order made at a Special Term, denying a motion for a new trial.</p>

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

Coniroversy submitted upon an agreed statement of facts, in pursuance of section 1729 of the Code of Civil Procedure. The parties sought to obtain a judicial construction of certain portions of the will of the defendant’s testator. The will contained the following, among other clauses: “ First.

Appeal by the defendant from a judgment, entered on the verdict of a jury, and from an order denying a motion to vacate the verdict and for a new trial made upon the minutes of the justice before whom the action was tried.

The referee found that the plaintiff and the defendant’s testator were husband and wife, and on the 13th day of May, 1869, the marriage between them was dissolved at the suit of the plaintiff herein and a decree was entered in the Supreme Court of the State of New York that the defendant pay during the lifetime of the said Elizabeth M. Beach, and- while she remained unmarried, the sum of $365 in each year in quarterly installments; that the said Albert E. Beach was…

The action was brought to recover damages for the death of the plaintiff’s intestate, his son, which was alleged to have been caused by the- defendant’s negligence. The action has been tried three times; has been twice before the General Term and once before the Court of Appeals. The opinion of the General Term upon the first appeal is reported in 17 Hun, 102.

The relators recovered the judgment on January 2, 1882, against the then commissioners of highways of the town of Kingston. The judgment was recovered for services rendered in grading and repairing a highway in the ‘town, in pursuance of a contract entered into with the commissioners of highways.

The action was brought to recover the damages occasioned to the plaintiff, from a horse belonging to her as administratrix having stepped through a' hole in a bridge or culvert in a highway.

The action was brought to recover the amount due upon two-promissory notes, the plaintiff claiming that the defendants were-liable ¿ás indorsers thereof.

<p>Appeal from an order made at a Special Term denying a mqtion to require the relator, Robert Boocock, who brought these suits in the names of the overseers of the poor to recover penalties for a violation of the excise law, to file security for costs.</p>

<p>Appeal from a judgment dismissing the complaint, entered upon the trial of this action at the circuit.</p>

06 in favor of plaintiff and against the defendant. The plaintiff sued the defendant to recover $600. The defendant made an offer to allow judgment for $108, which was not accepted. The action was tried January 2, 1878, and the plaintiff obtained a verdict for $108, thus giving costs to the defendant. On January 25, 1878, the defendant in writing assigned his recovery, if, any, to one William Eomer, his attorney. The defendant then was and now is insolvent. .

<p>Appeal from a decree of tbe surrogate of Westchester county, entered upon the accounting of the defendants, as executors of John Milderberger, deceased.</p>

The defendant recovered a judgment on August 29,1878, against the plaintiff for $122.88, upon which he issued an fexecution and collected the sum of $182, being the whole amount due thereon, with poundage, etc. On June 20, 1879, this judgment was vacated and set aside. The plaintiff then, after demand, brought this action against the defendant and obtained a judgment for the amount so paid under the execution, with costs.

<p>Certiorari to review the action of the respondents in reassessing damages awarded by commissioners upon the laying out of a highway;</p> <p>Upon the hearing before the jury the commissioners of highways and the land owners appeared with their counsel and were heard.</p>

<p>Executory contract— right of the vendee to object to the quality of the goods after theirr delivery and acceptance.</p> <p>The plaintiffs, through one Duffy, agreed to sell scrap steel to the defendants, at two cents per pound. There were to be fifteen tons of tool and fifteen tons-of file steel to' every twenty tons of other scrap steel. The tool and file steel was heavier and more valuable than the other. The plaintiffs had the right to deliver an unlimited amount of steel in these proportions. They delivered first eighty and then twenty tons. The last lot was assorted by Duffy, at the defendants’ request, after its delivery. There was so little tool and file steel delivered as to reduce the value of the lot to one and one-third cents per pound.</p> <p>In an action brought by the plaintiffs to recover for the steel so delivered, the referee held that the contract being an executory one was to be deemed performed, the steel having been, after an opportunity to examine it, accepted by the defendants, and that the plaintiffs were entitled to recover the full contract price.</p> <p>Held, that this was error.</p>

The action was brought to obtain a construction of the will of Edward Ingraham, deceased. After the payment of his just debts and funeral expenses he gave to two persons named in his will the sum of $50,000, to be held in trust for his five children. The trust was to continue during the lives of all the children, and was, for that reason, declared void. The residue of his estate he gave to his wife so long as she remained his widow.

This action was brought to have the will of William H. Hollis declared wholly or partly invalid as to the bequests therein contained to the Drew Theological Seminary and the Wesleyan University. The testator left him surviving a wife, the plaintiff, but no children, or descendants of deceased children.

The action was brought by the plaintiff, a servant, against the defendant, his master, to recover a year’s wages under an express contract of hiring.

<p>Biparian owner — may dam up water in order to cut ice from the pond so formed — may drain the pond and hold lack the water until it is filled again, when it is necessary in order that the ice may le clear.</p> <p>A riparian owner may construct and maintain a dam across a stream for the purpose of cutting and removing ice from the pond formed thereby.</p> <p>In order to obtain good, clear ice, he may also, when necessary, drain the water from the pond, and clean and refill the same, although by so doing persons owning mills below him are deprived of the use of the water during the time required for the refilling of the pond. (Cullen, J., dissenting.)</p>

<p>Attachment — refusal to deliver pi'operiy to the sheriff — the title of the sheriff, when the property is acquired, relates hack to the time when he demanded the property.</p> <p>A person having, under his control property, belonging to one against whom an attachment had been issued, refused to deliver the same to the sheriff or to give him the certificate required by section 650 of the Code of Civil Procedure. Thereafter he was compelled by an order made upon the application of the sheriff to deliver the property to the latter.</p> <p>Held, that the sheriff’s title thereto related back to the time when he made the demand for the property and certificate, and that such title had priority over the title of one claiming under an ssignment made by the debtor between the time of such refusal to deliver and the time of the actual delivery of the property to the sheriff. »</p>

<p>Evidence — burden of proof — statute of limitations.</p> <p>This action was brought upon a promise made by the defendant in 1873, to pay to the plaintiff a sum then due to the latter, as soon as the defendant was able. The complaint alleged that the defendant had became able to pay such sum, but did not allege when he had first acquired such ability. The defendant denied none of the facts set forth in the complaint,but pleaded the statute of limitations.</p> <p>Held, that the statute began to run in favor of the defendant as soon as he became able to make the payment, and that it rested upon the plaintiff to show that such ability had been first acquired within the six years immediately preceding the bringing of the action. '</p>

The action was brought to recover damages from the defendant The Flatbush Water-Works Company, and its contractor Stevens, for laying water pipes in respondent’s lands in Washington avenue, Flatbush, and to enjoin them from proceeding with the work.

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

<p>Controversy submitted upon an agreed statement of facts, in pursuance of section 1269 of the Code of Civil Procedure.</p>

<p>Judgment — an assignee of it may me thereon without frst obtaining leave from the court— Code of Oivil Procedure, secs. 1909, 1912, 1913.</p> <p>'One who has acquired title to a judgment of'a-court of this State by virtue of an assignment from a foreign administrator of the judgment creditor, may ■. maintain an action thereon in his own narhe, without first procuring leave from the court so to do.</p>

- • . ■ The case came before the General Term upon an appeal from an order made by the surrogate of Westchester county denying an application to compel a sale of the real estate of one John P. Jenkins, deceased. ,: The .facts and the opinion of the-.General Term will be found in 27 Hun, at page 570.

fliis action was commenced on the- 1st of August, 1882, by the service of a summons and complaint upon the defendants. Upon the same day an affidavit, an undertaking in replevin and a requisition were placed in the hands of the sheriff of Onondaga county, ' in pursuance of which he took into- his possession a quantity of tobacco described in the complaint and affidavit.

The action was commenced September 22,1880, by the plaintiffs, who had been appointed assignees in bankruptcy of the firm of Obreight & Weil, February 14, 1876.

Connor, late sheriff of the city and county of New York, deceased, for poundage on an execution against the person of William M. Tweed.

<p>Arrest — order of, granted for the fraudulent disposition by the defendant of property situated without the State — Code of Civil Procedure, sec. 550, sub. 2 —A party who pursuant to the condition of an oi'der releasing him from an'rest stipulates not to sue, cannot thereafter avoid such condition.</p> <p>This action was brought by the plaintiffs, who were engaged in business in the city of New York, to recover the price of merchandise there sold to the defendants, who were engaged in carrying on business in the city of Mobile, in the State of Alabama. An order of arrest was granted and served upon the defendant Frenkel here, upon the ground that since the purchase of the goods the defendants had fraudulently disposed of their property in the State of Alabama with the intent to defraud their creditors.</p> <p>Held, that the order was properly granted under subdivision 2 of section 550 of the Code of Civil Procedure providing for its issue in actions upon contracts, where the defendant has since the making of the contract removed or disposed of his property with the intent to defraud his creditors; and that the fact that the property so disposed of was situated without the limits of this State was immaterial.</p> <p>Blasón v. Bruno (33 Barb., 520) distinguished and criticised.</p> <p>A defendant who is released from arrest, by an order imposing as a condition of such release that he shall stipulate not to bring an action for damages for false imprisonment, and who does so stipulate and obtains his release under such order, is not entitled on appeal to have so much of the order as imposed the condition reversed.</p>

<p>Appeal from order of the Special Term staying the plaintiffs’ proceedings, and granting leave to the defendant to plead his discharge in bankruptcy.</p>

the Special Term as establishes the validity of the tenth paragraph of the will of the plaintiffs’ testator. The action was brought to obtain a construction of the testator’s will.

<p>Appeal from au order made at a Special Term denying a motion for the readjustment of costs.</p>

The motion for the discharge of Mr. Steinert was made on his affidavit and on the warrant of commitment. In his affidavit he stated, among other things, that if relieved from imprisonment he would, with the assistance of his relatives and with money which he believed he would be able to earn, pay the whole of the fine in the course of a year or so ; and he swore that if given an opportunity he would pay every dollar of the amount.

<p>Constitution — streets in cities may be laid out by authority of a private or local bul— Constitution, art. 3, sec. 18 —1881, chap. 469, is constitutional.</p> <p>The prohibition contained in section 18 of article 3 of the Constitution against the passage of a local or private hill “laying out, opening, altering, making or discontinuing roads, highways or alleys ” does not apply to streets and avenues of cities, but only to roads and highways as known and designated under the general highway system of the State.</p> <p>Chapter 469 of 1881, providing for the laying out and opening of Lexington avenue in the city of New York by the proper authorities of the city, is constitutional and valid.</p>

<p>Appeal by Edward D. Christian from an order made at a Special Term denying a motion to set aside an attachment issued in this action against the defendant.</p>

William H. Wickham and Messrs. William C. Traphagen and Bernard Smyth, commissioners appointed to estimate and determine the damages sustained by certain property owners, by reason of proceedings to lay out a military parade ground under the act specified in the title.

<p>Statute of limitations — what statements do not amount to a plea of the statute of. limitations — Code of Gwil Procedure, sec. 413.</p> <p>This action was brought to recover a sum of money intrusted by the plaintiff to the defendant’s testator January 22, 1859. The defendant set up in his answer as one of his defenses to the action “ that the claims of the plaintiff mentioned in said complaint, if not wholly fictitious, are stale and outlawed demands and have been wholly abandoned and lost by the laches of the plaintiff in not insisting upon the same during the lifetime of the testator, with whom the plaintiff was in daily intercourse, and the defendant claims the benefit of all statutes or rules of law or equity which may be invoked for the purpose of resisting the same, and which the evidence presented upon the trial may show to be applicable.”</p> <p>Held, that this was not a plea of the statute of limitations, and that the objection that the plaintiff’s demand was barred by that statute could not he raised upon the trial.</p>

Tbe petitioner sought, under section 5, of title I, of chapter IB, of part 1 of the Revised Statutes, to have an election of directors of the defendant company set aside, and have certain other persons declared to have been duly elected directors of the company.

<p>Appeal from an order made at a Special Term dismissing several writs of habeas corpus, and remanding the appellants (the applicants) severally to the custody of the warden of the. city prison.</p>

<p>Attachment — when the stock of a foi'dgn corporation having its place of business in this State is subject to it— Code of Civil Procedure, secs. 644, 647, 649, subd. 3.</p> <p>The plaintiffs, residents of the State of Massachusetts, brought this action to recover the amount unpaid upon certain promissory notes made by the defendant. Certain shares of stock owned by the defendant in the Hat Sweat Manufacturing Company were levied upon under an attachment issued herein, the papers being "served by the sheriff upon the treasurer and secretary of the company, who resided in the city of New York. The company was incorporated under the laws of the State of Pennsylvania, but its office and factory were located in the city of New York, and its business was there carried on, two of its three directors being residents of that city.</p> <p>Held, that the company might be treated as though it were a domestic corporation, and that its stock might be here attached by a creditor of its owner.</p>

<p>Appeal from an order of tlie Special Term denying a motion to continue an injunction.</p>

<p>Controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. ■</p>

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

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

<p>Composition in bankruptcy — who is to be named as the creditor in the bankmipt’s statement— when he does not cease to be such by an assignment of his claim — a sealed assignment of a debt is a deed and may be acknowledged before a United States consul.</p> <p>This action was brought by the plaintiff in January, 1875, upon a debt due from the defendant to one Graf, a resident of Sweden, who had assigned the same to the plaintiff November 6th, 1874. In answer to a discharge by a composition made in January, 1877, in bankruptcy proceedings instituted against the defendant Noyember 12th, 1874, which discharge was set up by the defendant; the plaintiff showed that he was not named as a debtor in those proceedings, but that the debt was therein stated to be still owing to Graf. The defendant offered to prove that before the proceedings for the composition were taken the plaintiff admitted to him that Graf was still the real owner of the debt.</p> <p>Held, that the court erred in excluding the evidence; that if Graf was absolutely entitled to any money which should be paid upon the debt, he was the creditor within the meaning of the bankrupt act, and that the composition made in pursuance thereof was a bar to the action.</p> <p>An assignment of a debt under seal is a deed, and a United States consul may take the acknowledgment thereto.</p>

The action was brought to recover money lost by the plaintiff in playing poker with the defendant. The defendant denied certain of the allegations of the complaint, and set up two separate defenses.

<p>Appeal from an order made at a Special Term confirming the report of a referee.</p>

The petitioner had four children, the eldest being at the date of the petition eleven years of age and the youngest three years.

<p>Demurrer — will be sustained if the plaintiff under the facts stated is not entitled to the specific relief demanded, although such facts would home entitled him, to other relief.</p> <p>A demurrer interposed to a complaint upon tlie ground that it does not state facts sufficient to constitute a cause of action should be sustained, if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, even though they would have entitled him to some other or different relief had he demanded it.</p> <p>Where, in an action against several defendants upon a promissory note, the relief demanded is a judgment for the amount due thereon against the defendants and each of them, and the facts alleged show that the plaintiff is not entitled to such judgment, a demurrer to the complaint should not be overruled even though the facts stated show that he is entitled to a judgment for an accounting.</p>

The action was brought to recover the price of goods which the . plaintiffs had been induced to sell and deliver to the defendant by means of his false and fraudulent representations.

<p>Corporation — a petition for its volunta/ry dissolution must state facts showing that such dissolution will be beneficial to its stockholdw's — the order requiring persons interested to show ccmse must comply strictly with the statute — objection how taken — report of the referee.</p> <p>A petition for the voluntary dissolution of a corporation must state facts showing that the dissolution of the corporation will be beneficial to the interest of the stockholders, it is not enough to allege that the parties differ as to the management of the affairs of the company, and that the petitioners, who own one-half of the shares of the corporate stock, are convinced that if the methods and plans of the other parties in relation to the management of the corporation be carried into effect the result will be the financial ruin of the corporation.</p> <p>Section 3433 of the Code of Civil Procedure provides that the court shall, in such cases, make an order requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place ‘therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved. A copy of the order is to be published, as directed in section 3434, and served upon each of the creditors and stockholders specified in the schedule which is required to be annexed to the petition.</p> <p>Held, that the order to show cause was in the nature of process provided for bringing the persons interested in contesting and resisting the application before the court, and that the requirements of the statute, as to its form and contents, must be strictly complied with.</p> <p>That an order requiring all persons interested, to show cause “why the prayer of the petitioners should not be granted ” did not' comply with the requirements of the statute, and tfiat all proceedings founded thereon were void for lack of jurisdiction.</p> <p>That the objection might be taken by any of the parties to the proceedings, and at any stage thereof.</p> <p>Section 3436 requires the report of the referee to contain “ a statement of the effects, credits and other property, and of the debts and other engagements of the corporation, and of all other matters pertaining to its affairs.”</p> <p>Held, that a statement that the schedules annexed to the petition were correct was not a compliance with this section.</p>

In the affidavit upon which the order was made it was alleged, among other things, as follows:. “ This action is on two promissory notes made by said Boynton, of which plaintiff is the bona fide holder for value, without notice of any prior defenses whatsoever. The judgment demanded is the amount due on the notes with protest fees, namely, $11,002.66 and interest from November 11, 1882.

<p> Supplemental complaint —facts showing a cause of action accruing after the action has been corh,menced, cannot be set up by. </p> <p>In November, 1882, the plaintiff commenced this action to recover the price of goods sold and delivered to the defendant. The defendant alleged in his-answer that a portion of the said goods were sold upon terms of credit which had not expired at the time the action was commenced. Thereafter, on the 9th day of February, 1883, the plaintiff obtained an order allowing him to serve a supplemental complaint alleging that the terms of credit upon which a portion of the goods were sold expired December 6, 1882, and the terms upon which another portion was sold expired January 13, 1883. The supplemental complaint was served to enable him to recover in this action the price of the goods which were sold upon a term of credit expiring after the action was commenced.</p> <p>Held, that the court erred in allowing him to serve the supplemental complaint.</p> <p>Corbin v. Knapp (5 Hun, 197), and Mncke v. Kourhe (20 id., 264), distinguished.</p>

<p>City — when it is not liable for the wrongful oats 'of its boa/rd of assessors acting under a special statute — when a person injured by a public improvement is confined to the remedy provided in the statute — 1872, chap. 729.</p> <p>The board of assessors of the city of New York, while acting under chapter 729 of 1872, authorizing it to consider and allow the damages sustained by persons owning buildings fronting upon Eighth avenue, which might be damaged by the change in its grade by said act directed to be made, bears no such relation to the city government as to render the city liable for the wrongful or illegal acts of such board.</p> <p>The only means of redress provided for those injured by the change of grade are those specified and prescribed in the act.</p>

The plaintiff stated in his affidavit that the action was brought to obtain a judgment of the court declaring a resolution passed at a meeting of the governing committee of the New York Stock Exchange to be illegal and void, and to restrain the enforcement of the same.

The recovery was had for the breach of a warranty made upon the sale of 1,100 shares of the stock of the Maryland Union Coal Company. The sale was in form made by John White, who, it was alleged, acted as the agent of the defendant in making it. The fact of this agency did not appear in the contracts entered into in writing between White and the defendant, nor in the agreement subscribed by the plaintiff, under which he received the stock.

<p>Taxes — should be collected from the person against whom they art assessed, although he has sold the land before such taxes were levied.</p> <p>After the assessment for the year 1876 had been made, and on or about August twenty-second of that year, one Monroe conveyed his undivided three-eighths interest in certain real estate in the city of Syracuse to the plaintiff. In Octo-' ber following the city taxes, and in December the State and county taxes, were extended and levied upon the property. Thereafter the owners of the other five-eighths of the property paid their proportionate share of the tax, leaving the three-eighths which was assessed to Monroe unpaid. The plaintiff having refused to pay the tax the defendant’s tax collector, under and pursuant to his warrant, seized certain personal property belonging to the plaintiff and sold it.</p> <p>Held, that it was the duty of the collector to collect the tax from the person against whom it had been assessed, and that in case he could not so collect it the tax became a lien upon the land.</p> <p>That he had no right to enforce the payment of the tax from the plaintiff, by the sale o f his personal property, and that the city was liable for his acts in so doing.</p> <p>Rundel v. Lakey (40 N. Y., 613) followed; Barlow v. St. Nicholas National Bank of New York (63 id., 399) distinguished.</p>

<p>Alimony and counsel fees — when they should be allowed.</p> <p>In an action brought by a husband to procure an absolute divorce from his wife, upon the ground of her adultery, she put in an answer alleging that the plaintiff had. been guilty of adultery, and that she had upon that ground procured an absolute divorce from him in the State of Illinois, and subsequently married the person with whom the plaintiff claimed that she had committed the adulter- ■ ous acts for which he sought a divorce.'</p> <p>Held, that the case was one in which the court should exercise its discretion as to granting an allowance on an application made by the wife for alimony pendente lite, and for the expenses of her defense.</p>

<p>Appeal from an order of the Onondaga Special Term, discharging the defendant from imprisonment.</p>

Motion, by the defendant for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, directed at the Onondaga Circuit. The defendant, as sheriff, held an attachment in favor of a creditor of Allis & Co., and to enforce the attachment seized certain property claimed to belong to Allis & Co., at Marcellus, Onondaga county.

Anson Brown, tbe testator, died June 17, 1879, leaving him surviving bis widow Almira Brown, bis daughter Mary Brown, and bis sons Hiram Brown, tbe defendant, and Eugene Brown, tbe plaintiff.

<p>Mortgage — discharge of the lien of it Toy a tender — right of a subsequent incumbrancer to compel an assignment of it to him — upon what terms it will be ordered.</p> <p>A tender made to one holding a mortgage upon real estate by a subsequent incumbrancer, will not operate as a discharge of the prior lien unless such was the clear intent of the party making it and the tender was an absolute and unconditional one. It will not discharge the lien of the mortgage if it be accompanied by á demand for an assignment of the mortgage.</p> <p>In an action brought to foreclose a mortgage one of the defendants, a subsequent lienor, set up as a defense a tender of the amount due upon the mortgage, and a demand for an assignment thereof, made prior to the commencement of the action. He had not brought any action to compel an assignment of the mortgage, nor had he paid the money into court when the tender was made or pleaded.</p> <p>Meld, that to entitle him to a judgment, compelling the plaintiff to assign the mortgage to him, he must pay the amount due, with interest to date, together with tbe costs of the foreclosure.</p>

judgment, entered upon the report of a referee, awarding the possession of the property described in the complaint to the plaintiff, and six cents damages and costs.

On the 7th day of January, 1882, John Dun made a general assignment, for the benefit of his creditors, to John Dorsey, Jr., his bookkeeper and clerk, who took possession of the assigned property, consisting among other things of a malt house, in which were 18,000 to 20,000 bushels of malt in bulk.

The action was brought to recover a deficiency arising upon the foreclosure of a mortgage upon certain real estate made by the defendant’s testatrix which had been assigned by the mortgagees to the plaintiff. The premises were sold in pursuance of a statutory foreclosure.

<p>Oity of Syracuse — duty of, to repair its sidewalks — the owner and not the tenant of adjoining premises is bound to repair — 1860, chap. IB, sec. 3 — what evidence of a defeat is admissible to cha/rge the city with notice of it — how long it mustjiame existed.</p> <p>This action was brought by the plaintiff to recover damages for injuries sustained by reason of his having fallen, while passing along a defective sidewalk immediately adjacent to premises of which he was then in possession under a lease. The defendant’s charter conferred upon it power to make and repair sidewalks, and imposed a duty upon every owner of real estate, “in front of whose premises a sidewalk or gutter has been heretofore made, to keep the same at all times in suitable and proper repair.”</p> <p>Held, that in the absence of any evidence to show that the plaintiff had by the terms of his lease agreed to keep the sidewalk in repair, or that he had there erected a nuisance or obstruction which caused the injury, the city was liable for the damages occasioned by the defect.</p> <p>Upon the trial the plaintiff was allowed to show that other persons had tumbled down upon the sidewalk and been injured while it was out of repair.</p> <p>Held, no error.</p> <p>The judge, in charging the jury that it was for them to decide whether the defect had existed for a sufficient length of time to charge the city with notice thereof, said that “ not in order for even a week would be sufficient. Some courts have held a week, some a little longer.”</p> <p>Held, error.</p>

<p>Manufacturing corporation — liability of stockholders for its debts — they are liable for payments falling due upon contracts made before they became stockholders — what is a sufficient amorment of the recoree'y of a judgment against the company.</p> <p>In an action brought against a stockholder in a manufacturing corporation to recover a debt due from it the complaint alleged, among other things, that no, certificate showing that the capital stock was paid in had been filed; that the defendant became a stockholder in the corporation on or about October 7,1875; and that on or about June 10, 1875, the company entered into a contract with one Black to insert an advertisement in a journal published by him for one year, commencing in July, 1875, for the sum of $100, payable quarterly.</p> <p>Held, that although the defendant was not a stockholder at the time the contract was made, he was liable for the installments falling due thereunder after he became and while he continued to be one.</p> <p>The complaint alleged that within one year after the debt became due an action to recover the same was brought against the company and a judgment recovered against it, upon which an execution had been issued and returned unsatisfied. Upon a demurrer to the complaint:</p> <p>Held, that the averment .was sufficient to indicate that the judgment was recovered for the same debt which was sued for in this action, and that having been recovered for the whole debt it included the three installments for which the defendant was liable.</p>

Appeal by the defendant from an order of the Monroe County Court, refusing a motion to set aside a judgment so far as it awards costs to the plaintiff. The plaintiff recovered on the 16th of August, 1881, a judgment against the defendant for seventeen dollars and fifty cents damages. The defendant appealed, and the new trial in the County Court of Monroe county resulted in a verdict in favor of plaintiff for eight dollars and twenty-five cents on the 11th of September, 1882.

<p>Taxation — construction of an agreement exempting a wates,jworhs company from village taxes — the fact that a private corporation furnishes water to a village does not entitle it to exemption from, taxation.</p> <p>The relator, a private corporation organized in pursuance of the statutes providing for the formation of water-works companies, entered into an agreement with a village by which it agreed to supply the latter with water- for extinguishing fires and two water troughs and drinking fountains. The village agreed in consideration thereof to pay a stipulated yearly rental, and “that the said water-works are to be exempt from all corporation taxes” during the continuance of the agreement. The company also supplied water to the residents of ‘ the village for pay, applying the receipts therefrom to its own private uses.</p> <p>Held, that although the agreement exempted the corporation from taxation by the village, it did not relieve it from its liability for town, county and State taxes.</p> <p>That it was not entitled to claim exemption from such last mentioned taxes on the ground that it was one of the necessary means or agencies for the carrying on of the village government, or that its property was held for specific public uses in trust for governmental purposes.</p>

<p>Marriage — by a’ wife in good faith after a five years’ absence of her husband — 3 S. iS. (7th ed.), 2832, sec. 6 — it is not essential to the validity of the ma/rriage that the husband should lease the general locality where he formerly resided.</p> <p>In an action to recover dower it appeared that the plaintiff while living at Goveneur had, in 1875, married one Jones, and thereafter removed with him to Pamelia, where she lived with him as his wife until his death in 1880. Prior to her marriage to Jones, and in 1855, the plaintiff had married one Firth and lived with him at various places until 1858, when they went to Syracuse and there resided until 1860, when the plaintiff separated from him and went to live with her relatives in Jefferson county. With the exception of seventeen months during which he served in the army, and portions of 1863 and 1864 when he worked at Pitthole, Pennsylvania, Firth continued to reside in Syracuse until about- June, 1864, when he went to Olisco, a town distant about thirteen miles from Syracuse, where he has ever since resided. He saw and corresponded with the plaintiff .at intervals down to March, 1864. In June, 1864, the plaintiff received a letter from a person whom she knew to he a friend of her husband stating that the latter had died suddenly of cholera on Lake Erie, that his body had been thrown overboard and that the Writer was with him at the time of his death. The letter was shown to the brothers and sisters of Firth, and to the plaintiff’s relatives, by whom investigations were made hut nothing was learned of the writer or of Firth. The plaintiff heard that Firth was alive in 1876, and she saw him in 1879.</p> <p>Upon the trial the court held that section 6 of the Revised Statutes (7th ed.), 2332, 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 he living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall he void only from the time that its nullity shall be pronounced by a court of competent authority,” applied only to cases in which the person absented himself from the general locality in Which he lived; and that as Firth continued to live in the same general locality during the time of his absence from his wife there was no question to be submitted to the jury.</p> <p>Held, error.</p>

<p>Master and servant — when a superintendent is a fellow-servant within the rule that a master is not liable to a servantfor the negligence of his fellow-sm'va/nt.</p> <p>One of the defendant’s coal cars having been derailed at its yards in Buffalo, defendant’s division superintendent directed the person in charge of the car shops and yards to send a wrecking train with the requisite machinery and seven men, with a man in charge, to replace the car. In pursuance of this order a wrecking train was sent under the charge of one Smith, who was employed by the defendant to superintend the removal of wrecks, under the orders of the person in charge of the shops and yards. While the car was being replaced the plaintiff’s intestate was killed by the upsetting of the car, which was caused by an improper and negligent order given by Smith.</p> <p>Held, that Smith was a fellow-servant of the deceased and that the defendant was not responsible for his negligence.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit, and from an order made at a Special Term denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a decision made at Special Term in Onondaga county, in an action upon a bail bond executed by the defendant as bail to secure the jail liberties to one Alpheus 0. Beckwith, a person imprisoned under a precept issued in pursuance of a special order of this court for noncompliance with'an order to pay over money.</p> <p>Prior to the 3d day of May, 1878, Pierce & Haggerty made an assignment of their property to one Alpheus C. Beckwith, as assignee, in trust for the benefit of their creditors.</p> <p>George T. Hawley and others, judgment-creditors of the said ■Pierce és Haggerty, in May, 1878, commenced an action in this court against Pierce & Haggerty, and Beckwith, the assignee, to have the assignment declared void as against creditors and compel Beckwith, as assignee, to account for the property and moneys in his hands, and to have the same applied in payment of his judgment. The defendants appeared by an attorney and sought to uphold the assignment as valid. •</p> <p>The action was referred to a referee to hear, try and determine. Upon his report an interlocutory judgment was entered declaring the assignment void as to creditors, and that the same be set aside as fraudulent; that Beckwith, the assignee, should account for the value of the property which came to his hands, and finding the value to be $3,000 that he be enjoined from selling and disposing of any of said property received by him under the assignment, or paying out any of the proceeds derived from a sale of the property, and that a receiver be appointed of the effects of the said Pierce & Haggerty, which should be in their hands or the hands of said Beckwith, and that from the proceeds of such property and effects he was directed to pay the costs and disbursements of the action, which were taxed and adjusted at $107 to pay the plaintiffs their judgment of $178.35, and interest thereon from January 5, 1878, and bring the balance of the proceeds into court subject to its further order and direction.</p> <p>This judgment was entered and docketed in Onondaga county clerk’s office, the place of trial, October 17, 1878. Thereafter and on the 29th day of October, 1878, by an order made at Special Term a receiver was appointed, as provided for in the interlocutory judgment, and a referee was appointed to take and state the account of the said Beckwith, and to determine what costs, expenses, charges and disbursements, if any, were properly allowable to him, and to be deducted from the sum which he was by the decree to account for and pay over to the receiver These orders were duly entered in Onondaga county clerk’s office. The referee made a report dated January 20, 1879, which was filed but is not printed in the case.</p> <p>By an order of the court made at Special Term on the 31st day of January, 1879, on motion of the plaintiff’s attorney, the referee’s report was confirmed and the defendant’s attorney appeared and was heard upon the motion.</p> <p>It was for non-compliance with the terms of this order that the precept was issued to arrest and imprison Beckwith. The decretal part of the order is here copied m hac verba: “ That the report of O. D. Prescott, Esq., the referee herein, bearing date January 17, 1879, be and the same is hereby in all respects confirmed; also ordered, that the defendant Alpheus C. Beckwith, as assignee, pay over forthwith to John E. Brandigee, Esq., the receiver herein duly appointed and qualified, the sum of three thousand dollars, less the sum of three hundred and fifty dollars, and the further sum of forty dollars, which by the report of said referee said defendant Beckwith as such assignee was allowed from the three thousand dollars which he was directed to pay over to said John E. Brandigee as such receiver; that said Beckwith pay to Messrs. Risley & Stoddard, attorneys, the above named sum of three hundred and fifty dollars which was allowed to him by said referee for the purpose of paying and discharging the indebtedness of said Risley & Stoddard, against him as such assignee, for defending him as assignee in the actions brought against him; and that he also pay William A. Matteson, Esq., the above sum of forty dollars which was allowed to him by said referee for the purpose of paying and discharging the indebtedness of said Matteson, against him as such assignee, for conducting the defense in this action; that the amount which the defendant Alpheus C. Beckwith is hereby decreed to pay over forthwith to said John E. Brandigee, receiver therein, is the sum of two thousand six hundred and ten dollars. Further ordered, that the said John E. Brandigee, as such receiver, pay out of the funds so delivered to and held by him, besides and in addition to the amounts heretofore allowed and ordered, pay out of said fund the fees of the referee for said last mentioned reference fixed at ten dollars, and the further sum of ten dollars as and for the costs of this motion to the said plaintiffs herein.”</p> <p>The form of this order was approved by the judge who presided, and certified by the clerk and directed to be entered in the Onondaga county clerk’s office, and the same was received in the latter clerk’s office and entered on the first day of February. 1879.</p> <p>On the 14th day of March, 1879, an order was entered at Special Term purporting to be upon the motion of the receiver, and without reciting that any notice was given to Beckwith, but stating that a demand had been made of him to pay the moneys mentioned in the last named order, and that he had neglected and refused to do the same, and directing that a precept issue to commit him to the county jail until he paid the sum of $2,610 as required by such order. The precept was issued to the sheriff of Oneida county.</p> <p>Beckwith was arrested by the sheriff, and he, with the defendant herein, gave the bail bond sued upon.</p>

<p>Trespass — when it will be restrained by an injunction — when a court of equity will award damages therefor.</p> <p>A court of equity has jurisdiction over an action brought by the owner of a city lot to restrain the owner of an adjoining lot from removing a division fence and entering upon and excavating the plaintiff’s lot, and erecting a building thereon, whereby the foundation of the plaintiff’s house will be damaged and the free access of light and air to its windows impeded and destroyed.</p> <p>In such an action it is proper for the court to determine and direct a judgment for the damages, sustained by the plaintiff by reason of the trespasses committed immediately preceding the commencement of the action.</p>

<p>Appeal from a judgment of the Court of Sessions of Chautauqua county, entered upon a conviction of the defendant of the crime of robbery.'</p>

<p>Appeal from a judgment of the Oswego County Court, reversing a judgment of a justice of tbe peace in favor of the appellant.</p>

<p>Appeal from an order made by Mr. Justice Yann, at chambers, denying certain motions made by the plaintiffs in supplementary proceedings.</p>

<p>Costs — executors and trustees, unnecessarily suing in their representative capacities, are personally liable for costs— Code of Civil Procedure, sec. 3246.</p> <p>Section 3246 of the Code of Civil Procedure does not exempt executors, administrators or trustees of an express trust from liability to costs in actions-brought by them in their representative capacities, unless the actions are necessarily brought by them in such capacities.</p> <p>In an action brought by an assignee in bankruptcy, as such, to recover for a wrongful taking from his possession of personal property which he had received as a part of the assets of the bankrupt, a judgment was rendered in favor of the defendant.</p> <p>Held, that as the assignee might have brought the action in his individual, instead of his representative, capacity, he-was personally liable for the costs thereof Reade v. Waterhouse (52 N. Y., 587), distinguished.</p>

<p>Divorce — neither alimony nor expenses allowed, when it is evident that the wife cannot succeed, — agreement for a separation, — when it will defeat an action for a limited divorce.</p> <p>When there is no probability that a wife will be successful in an action brought by her, whether for an absolute or a limited divorce, the court will not direct an allowance to be made to her by her husband, either as alimony pendente lite, or for expenses.</p> <p>Where a wife, in pursuance of an agreement for separation, and for a consideration paid by the husband and accepted by her, has voluntarily left and lived apart from him, and does not oifer or propose to return to him nor to restore the consideration she has received, she cannot procure a limited divorce upon the ground of his abandonment and refusal to support her.</p>

Appeal by Albert C. Phillips, receiver of the property of Charles C. Galster (appointed in the supplementary proceedings in an action in favor of Dennis Hess against said Galster), from an order of the Onondaga Special Term, made in this action, requiring the said receiver to pay to the defendant herein a certain sum of money which had been paid to said receiver, by said defendant, under an order of the county judge of Onondaga county, made in the action in which said…

<p>Practice — stay of executions upon appeals from judgments in foreclosure cases — election of appellant as to the form of the undertaking — Oode of Chml Procedwre, secs. 1327, 1331 —the court will not decide abstract questions of law.</p> <p>Tlie execution of a judgment directing tlie sale of mortgaged premises may he staid, upon appeal, hy giving an undertaking against the commission of waste and for the payment of the value of the use and occupation of the premises as provided in the first sentence of section 1331 of the Code of Civil Procedure, or hy giving an undertaking for the payment of any deficiency which may occur upon the sale, as provided in the second sentence thereof. The first sentence, as well as the last, applies to appeals taken from judgments' directing a foreclosure and sale.</p> <p>Section 1327 of the Code of Civil Procedure, applies only to judgments or orders requiring the payment of a sum fixed, or which may be fixed hy a simple computation. It does not apply to judgments for deficiencies.</p> <p>It is not the province of courts to decide abstract questions of law disconnected from the granting of actual relief.</p>

<p>Report of commissioners to'appraise damages — power of the court at Special Term to direct a rehea/ring on the ground that proper notice of the hearings before the commissioners was not given.</p> <p>Upon an application to confirm the report of commissioners, appointed to appraise the damages occasioned by the taking of land for railroad purposes, the court at Special Term has power to refuse to confirm the report and direct a rehearing, upon the application of a land owner who shows that he has not received proper and adequate notice of the meetings of the commissioners, and that by reason thereof he has been absent therefrom.</p>

<p>Appeal by the petitioner from an order confirming the report of commissioners, awarding damages to the land owner in the sum of $7,000.</p> <p>The amount of land taken is four and two hundred and twenty-five one-thousandth of an acre, and is a strip of land through a farm consisting of 217 acres. The proposed railroad divides the farm, leaving the house and barns and 46 acres of land on the north side and 167 acres on the opposite or south side of the railroad tracks. The farm is situated in the Mohawk Valley, in the town of German Flats, in the county of Herkimer, and near the two villages of Herkimer and Mohawk.</p> <p>The court at General Term, after holding that where a part of an entire piece is taken, the land owner is entitled to the market value of the piece actually appropriated for the use of the'eompany, and the depreciation which occurs by the location and construction of the railroad to the balance of the property; and that the plain and simple way of arriving at the damages in such a case, is for the commissioners to inquire and ascertain what is the present value of the entire piece, and what will be the market value of that which is left after the construction of the railroad, said:</p> <p>•“ It is insisted by the learned counsel for the appellant, that the owner was permitted to give evidence as to the damages which would arise by reason of tbe exposure of tbe buildings to fire, and the greater cost of managing and operating the farm in consequence of the construction of the railroad.</p> <p>“ William Iionck was called as a witness by the owner, and gave his opinion as to the value of the farm, before and after the construction of the road. On his cross-examination he was examined at length, and asked to state upon what basis fie estimated the value of the farm before and after the construction of the road, and he pointed out the injury the construction of the road would cause to that which remained, and the items of damage, and the inconveniences of managing and carrying on the farm.</p> <p>“ On his redirect examination he was asked this question: ‘ What are your items of the aggregate depreciation ? How do you make up this $9,000 and upwards, of depreciation % ’ This was objected to as ‘ incompetent, and that the damages should be as to the market value both before and after the proposed railway; that in making up the damages, assumed and estimated additional expenses of run-' ning the farm cannot be taken into consideration.’ And he answered _ as follows: ‘ I have several items. First. The loss in the quantity of 'production I put at sixty dollars; on account of the drainage, etc., I think sixty dollars per year. I put twelve hundred dollars on interest at five per cent to produce that amount. The driving and crossing with stock I put at fifty cents per day, amounting to one hundred and eightj'-two dollars and fifty cents for one year. For all time, three thousand six hundred and fifty dollars. I find another element, ■ the crossing and recrossing with teams to work the land on the south side. Third. I put the last item at one thousand three hundred and sixty dollars. Fourth. From fire there is some damage; I put that at sixty-two dollars per year. And for all time, twelve hundred and forty dollars.’</p> <p>“ The counsel for the railroad company moved to strike out all the evidence of the witness in answer to the last question, Qn the ground that it is immaterial, improper and incompetent, and that it usurps the province of the court; that the evidence is speculative and an estimation from beginning to end ; that the evidence is as to personal damages and assumed.; that there is no foundation in law or in fact for its reception. And then the counsel moved to strike out each item of the answer separately, and on the same ground. The motion was denied and an exception taken. . The opinion of the witness should have been limited to the market value of the farm after the completion of the road, taking into consideration all the incidental injuries to the remaining lands, if any.</p> <p>“ If the effect of constructing the road would be to expose the buildings to fire — to make the culture and management of the farm more expensive, or any of the lands less productive — they were proper elements to be presented to the consideration of the commissioners It was not, however, competent for the land owner to' attempt to prove, separately, the amount of damages arising from each of these causes of depreciation. The opinion of witnesses as to the separate items of damages must necessarily be uncertain, unreliable and largely speculative. The opinion of witnesses as to the market value of property is always received as competent, when such value is the subject of inquiry; provided the article has a market value and the witness is qualified to express an opinion. To permit the land owner to prove his damages, in the mode and manner attempted by this evidence, would.be a violation of the general rule of law fixing compensation for the lands condemned.</p> <p>“ The object and purpose of the statute is just and equitable in every respect, and should be faithfully adhered to, as affording a full and complete protection to the land owner and the corporation. By awarding to the owner the market value of the land actually taken, and adding thereto the depreciation in the market value of the lands remaining, as compared to their former market value, full and complete indemnity is secured to him. If separate items of damage could be proved in the manner attempted, and submitted to the commissioner's for their consideration, and the aggregate of damages determined therefrom, the result might be, in some instances, to award large damages to the owner, when, in fact, he has suffered none in consequence of depreciation in the market value of the land not taken.</p> <p>“ It not unfrequendy happens, when a track of land is divided into parcels by reason of the location of a railroad, that a portion is not as accessible and the management less convenient and more expensive, yet, as a whole, the market value would not be in the least depreciated. The statute forbids any allowance being made by the commissioners for the supposed benefits arising to the owner from the construction of the railroad, or the use to which the lands taken are to be devoted. This provision of the statute is intended to protect owners from the dangers and hazards of uncertain and speculative opinions. The rule adopted by the courts to limit the damages which may be awarded by the commissioners to the owner for injury to the part of the land not taken, to the actual .depreciation of the same in the market value, is to protect the corporation from uncertain and speculative damages, and should not be disregarded. The evidence objected to and received was not confined to a further examination by the respondent, to topics and inquiries introduced by the petitioner on cross-examination, and should be considered as evidence in chief. The circumstance that the witness had before given his opinion as to the depreciation of the land in market value, does not in any respect remove the objection. As the commissioners received this evidence over the objection of the petitioner, and denied the motion to strike the same from the record, it is to be presumed that they gave the same weight and consideration in making up the sum awarded as damages.</p> <p>“ The report of the commissioners should be set aside and new commissioners appointed to make another appraisal.”</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.</p> <p>Tbe action was brought to restrain the defendant from making a •sale of the plaintiffs’ lots, and to set aside an assessment for the ■expense of grading Hassico avenue in the village of Portchester.</p> <p>Section 46 of chapter 227 of 1'877, as amended by chapter 277 of 1878, authorized the board of trustees of the village of Portchester to cancel and vacate any illegal, unjust or irregular assessment, and section 47 of the act of 1877, provided that “ the said board of trustees shall thereupon proceed to ascertain and determine the actual cost and expense paid or incurred for such improvement * * * an¿ lawful interest thereon from the time when the same shall have been paid * * * and thereupon and thereafter commissioners of estimate and assessment shall be appointed.” By these commissioners assessments were to be made.</p>

Appeal by tlie trastees under the last will and testament of William Laytin, deceased, from a determination of the surrogate' of Westchester county, made upon a judicial settlement of the accounts of such trustees in said Surrogate’s Court, that said trustees are not entitled as such to commissions upon the capital or body of ' the estate. • William Laytin died on or about November 21, 1874, leaving a last will and testament and codicils thereto, which were duly proved…

<p>Appeal from an order made at a Special Term, denying a motion to vacate an order appointing commissioners of estimate and assessment, and from an order confirming their report.</p>

In November, 1881, the plaintiff commenced this action against the defendant for a separation from bed and board, on the ground of«*the cruelty of defendant. Thereafter a decree was entered awarding to the plaintiff • the relief sought and contended for.

The motion was made on the ground that the receiver was appointed without notice to defendant Ward, and on the ground of an alleged non-compliance with section 713 of the Code of Civil Procedure.

<p>Negligence — when it is a question for the jury — liability, where two causes tend to produce the injun'y.</p> <p>There is not sufficient room between the curb line of Crosby street, in the city of New York in front of the defendants’ place of business, and a railroad track laid in the said street to enable a team to stand there without stopping the cars. To obviate this difficulty, the defendants were accustomed to have' their teams driven partly upon the sidewalk, thereby reducing the space for foot passengers to about two feet. The plaintiff, while passing with his brother, in single file, along this narrow way, slipped upon the cover of a coal-hole, fell under the horses feet, and was stepped upon by one of them, whereby his leg was broken. The horses were not tied, but they did not become frightened or start. The coal-hole was not in front of the defendants’ premises but of an adjoining house. It was snowing at the time of the accident, the ground being covered to nearly an inch in depth.</p> <p>Held, that the court erred in refusing to submit the question of the defendants’ negligence to the jury and in non-suiting the plaintiff.</p> <p>When two causes contribute to produce an injury upon a highway, both of which are in their nature proximate, the one being a neglect to keep the highway unobstructed, and the other some occurrence for which neither party is responsible, there exists a liability on account of the defect if the injury would not have been sustained but for it.</p>

The action was brought to recover damages for personal injuries received by the plaintiff on the 6th day of February, 1879, while in the discharge of his duties as a brakeman on a freight train of the defendant.

” This is an action for damages for injuries alleged to have been received by the plaintiff from a machine belonging to the defendant, while said plaintiff was in the employ of this defendant, and working upon said machine.

<p>City Court of Yonkers — executions may issue directly to the sheriff, upon its judgments.</p> <p>An execution may be issued to the sheriff of Westchester county upon a judgment recovered in the City Court of Yonkers, although no transcript of the judgment has been filed, and no docket thereof has been made in the office of the clerk of that county.</p>

Appeals by the railroad company in. the two above entitled proceedings from the reports of commissioners appointed to appraise the damages of the owners of lands sought to be taken for the purposes of a railroad, and from orders confirming the same.

<p>Appeal — Notice of entry of judgment must be both subscribed by the attorney and his office address must be slated thereon.</p> <p>A copy of a judgment signed by the clerk of the court and a notice of the entry thereof signed with the name of the attorney, but not indorsed or subscribed with his office address or place of business, was served upon the defendant against wham judgment was recovered.</p> <p>Held, that such service was irregular and void and did not set in motion the statute limiting the time within which an appeal could be taken.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The appellant also sought to review an intermediate order made at a Special Term, awarding costs and an additional allowance to the plaintiff.</p> <p>It appeared that the claim upon which the action was brought had not been presented to the executors within the time limited in a notice published by them, requiring all claims to be presented as prescribed by law.</p>

The action was brought to recover damages for injuries alleged to have been sustained by the infant plaintiff, by reason of the negligence of the defendants.

<p>Accretion — doctrine of, only applicable where the increase is made by imperceptible degrees — an owner of a beach does not lose his title thereto, by its sudden overflow by the ocea/n — when a court of equity will restrain a trespass upon land.</p> <p>The plaintiff claimed to be the owner of a portion of the ocean beach at Far Rockaway, in the town of Jamaica, Long Island. The southerly or ocean line of the beach is now just where it was in 1797 when the land was conveyed to the plaintiff’s grantors. About four miles to the east of the plaintiff’s land is an island called Long Beach, which belongs to the town of Hempstead. Prior to 1835 Long Beach was bounded on the west by an inlet connecting the waters of Hempstead bay with the ocean. Between 1835 and 1869 the action of the tides and storms caused the inlet to move constantly to the west. As it moved the beach was first washed away, then shoals formed where the beach previously was, and finally those shoals became a bar and solid beach and attached themselves to the island. In the course of these changes the plaintiff’s land „ was overflowed and his beach washed away. Subsequently it arose again from the sea, separated from the main land by the channel of the inlet. Thereafter, as the result of some violent disturbance of the sea, the waters broke through to the east of the plaintiff’s land, at the place where the inlet originally existed, and at the same time the inlet to the west of the place shoaled and filled up and the outer beach became attached to the main land at a point to the west of the plaintiff’s land, leaving the beach in front of his land separated from it by water. The shiftings of the channel were frequent and sudden, varying from 300 yards to half a mile in a single storm or in a single night.</p> <p>Held, that the owners of Long Beach did not acquire title in the islands and beaches added to it by the shifting of the inlet, as such accretions did not occur little by little, or by small and imperceptible degrees.</p> <p>That the sudden overflowing and submergence of the plaintiff’s beach by the ocean did not deprive him of his title thereto or vest the same in the State, and that he was entitled to claim and possess the beach upon its subsequent reappearance.</p> <p>The complaint in this action alleged the ownership of the beach by the plaintiff; that it was a necessary appurtenance to a hotel which had been erected on the main land, and that he had leased it for bathing purposes with covenants of peaceable possession. It also alleged that the defendants intended to take possession thereof by virtue of a lease given to them by the owners of Long Beach which lease was alleged to he invalid It prayed that the lease be declared void and the defendants be restrained from taking possession of the beach on the grounds that the lease was a cloud upon plaintiff’s title, and that if the defendants took possession of the beach the business of the plaintiff’s tenants would be destroyed and his hotel irreparably injured.</p> <p>Held, that a case was stated calling for the interference of a court of equity.</p>