Volume 38 — New York Supreme Court Reports

<p>Renewal of lease — when the liens existing against the old lease may he enforced against the new one — a mortgagee of the leasehold interest is entitled to the benefit of the renewal.</p> <p>June 19, 1860, W. B. Astor leased certain premises in the city of New York to one Hertfelder for the term of twenty years and two months. The lease contained no covenant of renewal, hut authorized the lessee to remove any building upon the premises provided it were entirely removed ten days before the expiration of the lease. Hertfelder erected a building upon the lot, and thereafter, in 1873, the lease was assigned to William Wipfler and Elizabeth, his wife, who on the same day gave a bond and mortgage thereon to secure a portion of the purchase money,' which were subsequently assigned to the plaintiffs. January 14, 1880, the trustees of Astor, who was dead, gave a new lease of the premises to Wipfler and his wife, who at that time still owned the old lease and were in possession of the premises. March' 17, 1880, Wipfler and wife assigned the old lease subject to mortgages, including that of the plaintiff, to Jacob Muller, who on April 9, 1880, assigned the same subject to the same mortgage, to the defendant, Caroline Reis.</p> <p>It appeared that the lease by the trustees was given because the, lessees were the owners of the former lease and in possession thereunder, and had the right under its terms to remove the building from the lot, and that under such circumstances there existed a usage established by Astor and practiced by the trustees to grant new leases.</p> <p>Held, that the plaintiffs, as mortgagees, were entitled to the benefit of the new lease, and that their mortgage should be declared a lien thereon.</p>

<p>Negligence — to attempt to board a moving train on the elevated railroad is contributory negligence.</p> <p>One of tlie defendant’s trains on its elevated railway had reached and was about leaving the Chatham Square station on Second Avenue, on the evening of December ninth, when the deceased with other persons hastened from another train to get on board ; as they came running up for that purpose, the gate on the platform of the car was closed and the train started to leave the station. It was moving, but slowly, when two persons, running in advance of the deceased, pushed open the closed gate and boarded the car. The deceased also attempted to get on, but at that moment the conductor, while the deceased, having one foot on the platform, was stepping on the car, again closed the gate; that ■ foot was caught by the gate so that the deceased was carried along a short distance by the moving car until struck by a projecting water pipe on the station building, by which he was knocked from the car upon the track below and fatally injured.</p> <p>Held, that he was guilty of contributory negligence in attempting to get on a moving train ; and that such contributory negligence prevented his administrators from maintaining an action to recover the damages occasioned by his death.</p> <p>That even if the conductor was guilty of negligence in closing the gate, when he saw that the deceased persisted in attempting to get on the train, yet as this negligence could not have happened but for the prior negligent act of the deceased it did not authorize a recovery, there being no claim that the defendant was guilty of any willful wrong, or took advantage of the deceased’s negligent exposure of his foot, to entrap and purposely injure him.</p>

<p>Appeal by both parties from an order made at a Special Term, making and denying additional allowances of costs.</p>

<p>New trial in criminal cases — when granted on the ground of newly discovered evidence— Oode of Oriminal Procedure, sec. 465.</p> <p>Upon the trial oí the appellant for robbery in the first degree, he was examined in his own behalf and denied positively the commission of the offense, or any participation in it, and claimed to have been at the time of its commission at the residence of his sister at a christening; his testimony as to the latter fact being corroborated by that of several other witnesses called by him. Two police officers called by the people testified to the general bad reputation of the appellant; and one of the officers testified that he wpuld not believe the prisoner under oath. No witnesses as to his good character were called by the appellant.</p> <p>After his conviction he moved for a new trial, under section 465 of the Code of Criminal Procedure, upon affidavits of persons who were present at or in the vicinity of the robbery at the time it was committed, and who stated positively that the appellant was not one of those engaged in it, and also upon affidavits showing the good character of the appellant. One of the latter affiants stated that he was in court during the trial expecting to be called as a witness as to tbe character of the defendant, but was not examined for some reason which he. did not understand.-</p> <p>PL'eld, that although the evidence as to the occurrence itself was cumulative ana furnished no ground for granting a new trial, the evidence as to the appellant’s good character was not, and that the court erred in not granting the motion. (Davts, P. J., dissenting.)</p>

<p>Arbitration — a submission to arbitration effects a discontinuance of the action.</p> <p>During the pendency of this action the parties thereto signed a written agreement by which they agreed to leave all their differences to three arbitrators therein named, and that their decision should be final. The agreement was not acknowledged but was signed by the parties and three witnesses.</p> <p>Meld, that the agreement, operated as a discontinuance of the action, and that the fact that one of the arbitrators refused to act and that one of the parties refused to appear before the arbitrators, did not prevent it from having that effect.</p>

<p>Appeal from order of the Special Term,, denying ■ a motion to vacate and set aside, or to resettle, certain orders allowing the receiver compensation.</p>

<p>Landlord — liability of, to a stranger injured by reason of a defect in the hall through which he is passing to visit a tenant — notice of the defect must be given to the landlord to rendes• him liable — evidence.</p> <p>To render tlie owner of a building, the rooms in which are rented to different tenants, liable for the injuries sustainedby a person who, while visiting one of the tenants, caught her heel in a hole in the oil-cloth laid upon the stairs in the hall, it must be shown not only that the fall was occasioned by the dangerous condition in which the oil-cloth was left, but also that the landlord neglected, after having had knowledge or notice of its dangerous condition, to repair the same, or that he omitted to use reasonable means and precautions to ascertain its condition and make the requisite repairs.</p> <p>¡Evidence that some time after the accident the landlord had put new oil-cloth upon the stairs, held to be inadmissible.</p>

<p>Ceetioeari issued under the provisions of chapter 302, Laws of 1859, for the purpose of reviewing the action of the tax commissioners in assessing the capital stock of the relator for the year 1882.</p>

<p>Hvidence — personal transactions with a deceased person — what are to he considered as such — whan a party to the transaction cannot testify as to what was said and done hy the others in his presence — Oode of Oivil Procedure, sec. 839.</p> <p>In this action, brought to foreclose a mortgage given to the plaintiff’s testator, by the defendants, Reynolds and his wife, the defense of usury was set up by them. Upon the trial Reynolds, having been sworn for the defendants, was asked whether Wilson, the plaintiff’s testator, took any part in the signing of the mortgage.</p> <p>Held, that as the giving of the mortgage was a personal transaction between the deceased and the witness the testimony was properly excluded under section 839 of the Code of Oivil Procedure.</p> <p>The defendants then offered to prove by him that Wilson was not at the table and took no part in the execution of the mortgage, either by conversation or otherwise.</p> <p>Held, that the evidence was properly excluded.</p> <p>The witness was then asked at what time and at what place was the money paid for which the mortgage'was given.</p> <p>Held, that the testimony related to a personal transaction, 'and was properly excluded.</p> <p>His wife, one of the parties defendant, was sworn on behalf of the defendants, and asked whether at the meeting between herself, her husband and Wilson, any money was paid by Wilson to her husband, and whether she had any conversation with Wilson. The defendants also offered to show by her that she was sitting in the office twenty feet away, and saw Wilson pay to Reynolds $950, and heard Reynolds say to Wilson “ here is 950, as we agreed.”</p> <p>Held, that as the loan was made to the defendants, the husband and wife, and the bond and mortgage were made and delivered by them, the wife was a party to the transaction, and her testimony as to what then occurred was properly excluded, even though she took no active part therein.</p>

<p>Order of Odd Fellows — ‘ ‘ benefits ” for side members — right of the society to alter and amend its by-laws — when a member must first resort to the tribunals of the society for redress — conclusiveness of the decision of the tribunals of the society.</p> <p>In 1849 the plaintiff became, and he ever since has been, a member of Hudson City Lodge of Odd Fellows. The constitution and by-laws, which were signed by the plaintiff, provided that during the sickness of a member, qualified to receive sick “benefits,” he should receive (if he had attained the scarlet degree) four dollars per week after the first two weeks. The constitution also provided that the lodge might make, alter or amend its by-laws, and the manner of so doing was pointed out in the by-laws. July 9, 1878, the by-laws were regularly amended so as to reduce the benefits of a brother who had been sick for twelve months, to one dollar per week. The plaintiff was taken sick October 5, 1875, and continued so till the commencement of this action. He was of the scarlet degree, and entitled to receive sick benefits. He was paid four dollars a week down to July 8, 1879, and after that date one dollar a week. In an action by him to recover an additional three dollars a week:</p> <p>Held, that as the only contract between the plaintiff and the lodge was contained in the constitution and by-laws, they should all be considered together.</p> <p>That the lodge had the right to alter the by-law fixing the amount to be paid to sick members, after the plaintiff was taken sick, and that he could not recover the amount prescribed by the former one.</p> <p>That the constitution and by-laws required the plaintiff to first seek redress within the society itself, and by appeal carry the question to its highest tribunal, and that until he had exhausted this remedy he had no right to bring an action against the society in this court.</p> <p>Quaere, as to whether the decision of the highest appellate tribunal of the society would be conclusive upon the plaintiff.</p>

<p>JMdence — what is inadmissible, as hearsay — vicious propensities of animals — when the master is not chargeable with the knowledge of his servants.</p> <p>This action was brought to recover damages occasioned by the plaintiff’s horse having been kicked by one of the defendant’s mules. To show that the defendant had knowledge of the vicious propensities of the mule, declarations of the driver, made soon after the accident, were proved by the plaintiff.</p> <p>Held, that the evidence was inadmissible to prove either the viciousness of the mule or knowledge of that fact by the defendant.</p> <p>A witness was called by the plaintiff who had been employed by the defendant prior to and at the time of the accident to feed and take care of its teams when they came to its stable. The defendant owned some three or four hundred mules and horses.</p> <p>Held, that the knowledge of the witness as to the vicious propensities of the mule did not charge the defendant with notice thereof.</p> <p>Baldwin v. Gasella (L. R., 7 Exch., 325) distinguished.</p>

The evidence tended to show that the defendant took a horse belonging to one Ambrose Jewell from the latter’s stable and killed and buried it in a pit. Jewell and the defendant had been on bad terms for a long time and had had lawsuits, one of which was pending at the time the horse was taken.

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

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a jury.</p>

<p>Street raih'oads — consent of the abutting 'property owners to its construction— requisites of such consent— Gonstitution, arrt. 3, sec. 18.</p> <p>Section 18 of article 3 of the Constitution prohibiting the construction or opera tion of any street railroad, “ except upon the condition that the consent of the owners of one-half in value of the property hounded on * * * that portion of a street or highway upon which it is proposed to construct or operate such railroad-be first obtained,” does not require that the consent of the property owners should be under seal, or that it should convey to the company any interest which the abutting owners may have in the street or highway, or that it should release the company from all liability for any damages which the owners may sustain by reason of the construction or operation of the road.</p>

The defendant Kelly demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

<p>Motion to change the place of trial for the convenience of witnesses — the old rules as to what the affidavits must contain should he strictly enforced.</p> <p>The strict requirements, established by numerous decisions, as to the contents of affidavits used on motions to change the place of trial are wise, and the old rules relating thereto should not be relaxed.</p> <p>Where the applicant fails to state in his moving affidavits that, without the testimony of each and every of the witnesses named, he cannot safely proceed to the trial of the cause, as he is advised by his counsel and verily believes, the motion should be denied, except possibly in a case where the affidavit is so full and definite as that the court can see that the party could not proceed to tidal without the testimony of each witness.</p>

Appeal by Frederick W. Gross from the appraisal and report of the commissioners appointed in proceedings instituted by the Ulster and Delaware Railroad Company to acquire title to real estate, and from an order confirming the report of the said commissioners and from a clause therein charging the services and expenses of said commissioners against the sum awarded to the appellant for the lands taken. The commissioners fixed the damages at $3,500.

town of New Utrecht and abandoning the same, and also from laying down tracks across the public sidewalk without the consent of the highway commissioners.

<p>Motion by the plaintiffs for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the defendants.</p>

<p>Practice— a party to an action cannot be compelled to appea/i' for examination before trial in any county other than the one in which he resides or has an office — Code of Civil Procedv,re, sec. 886.</p> <p>Under section 886 of the Code of Civil Procedure, a party to an action cannot be required to appear for an examiaation before trial in any county other than that in which he resides or has an office for the regular transaction of business in person.</p> <p>The t^ct that the action is brought and is to be tried in such other comity does not authorize the court to require him to go out of the county of his residence.</p>

The action was brought to recover the value of a trunk and its contents which were received by the defendant at Malmo, Sweden, to be delivered in New York. The complaint alleged among other things: “ First.

Tbe action was brought to recover tbe value of certain articles of personal property, which were destroyed by fire, and were deemed tq be covered by a policy of insurance issued by tbe defendant.

The action was brought to recover the damages sustained by the plaintiff by reason of the death of her husband, which was alleged to have been caused by the negligence of the defendant. The intestate, who was a postal cleric, was killed by reason of injuries caused by the train of car's in which he was being thrown from the track.

. Appeal from a decree of the surrogate of Kings county, made upon tlie final settlement of the accounts of the executors of John Bullard, deceased.

<p>Usury — when a valid mortgage is not affected by a subsequent usurious agreement, although it be held by the party guilty of the usury.</p> <p>The plaintiff made a usurious agreement with the defendant Schmitz, whereby he agreed to loan to the latter $3,000; $2,500 of which was to be used in paying off an existing mortgage, the balance to be paid in cash. The plaintiff paid the amount of the first mortgage to the holder and took an assignment thereof. He also took the new mortgage for $3,000, which was subsequently decided to be usurious and void.</p> <p>In this action, brought to foreclose the $2,500 mortgage assigned to the plaintiff: Held, that he acquired a perfect title thereto by the assignment and was entitled to foreclose it. ,</p>

The action was brought to recover from the defendant the amount the plaintiff had been compelled to pay by way of damages to a Mrs. Hart for personal iujuries sustained by her in falling into an ■excavation in one of the sidewalKs of the village. The excavation was an uncovered area left in the sidewalk in front of a building which the defendant had erected and was completing at the time of the accident.

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

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

<p>Appeal from an order made at a Special Term setting aside an assessment of damages and a judgment entered thereon, upon the payment by the defendants of the plaintiff’s trial fee and witness fees, together with the costs of the motion.</p>

<p>Appeal by tbe plaintiff from an order made at Special Term vacating and setting aside a temporary injunction order restraining the collection of a tax.</p>

<p>Will — in case of inevitable repugnancy the latest beguest prevails — one of several executors who takes no part in the management of the estate is not entitled to share in the commissions — 2 H. 8., 93, sec. 58, as amended by chap. 362 of 1863.</p> <p>A testatrix gave and "bequeathed to her son "William “ the china dinner set marked T. Q. M., the bedstead and wardrobe in the second story front room” in her house in Madison avenue, in New York. She then gave and bequeathed to her daughter Caroline her “ mosaic and pearl .pin, also the furniture in my second story front room, namely, bureau, wcvrdrobe, chairs, table, sofa, carpet and curtains.”</p> <p>Held, that as the wardrobe was specifically mentioned in each bequest, and as there was no ambiguity in the language employed, there was an invincible repugnancy between the two claims, and that force and effect should for that reason be given to the last bequest to the exclusion of the first.</p> <p>Under section 58 of 2 Itevised Statutes, 93, as amended by chapter 362 of the Laws of 1863, providing that “ on the settlement of the account of an executor or administrator the surrogate shall allow him for his services, and if there be more than one shall apportion among them, according to the services rendered by them respectively,” certain commissions, the surrogate has no power to give any portion of the commissions to one of the executors who has taken no part in the management and settlement of the estate.</p>

<p>Married woman — is liable for the services of a music teaches' employed by her to instruct her daughters.</p> <p>A. married woman is personally liable for tbe value of services rendered by a music teacher, at her request, to her daughters, and for the value of sheet music furnished by him to them while giving them instructions in music.</p>

The plaintiff’s intestate was hilled by an explosion of gas which occurred in the vault used by the receiver of taxes in the municipal building of the city of Brooklyn. The deceased was standing at the door of the vault waiting for the clerk to .bring therefrom a book which the deceased desired to examine.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury, awarding a peremptory writ of mandcmius compelling the defendant to increase the railroad facilities furnished by it at Locust avenue station.</p>

<p>Appeal from an order made at a Special Term, upon the defendant’s motion, discontinuing the action and striking the case from the calendar.</p>

<p>Contract to grade sheets — when the contractor is not chargeable with notice of the want of authority in the milage to make it — right to recover money wrongfully applied by the village to pay an invalid assessment — an action to recover it is barred in six years.</p> <p>The plaintiff entered into a contract with the defendant to grade an avenue in the village of Portchester for a sum named. After the completion of the work the defendant insisted upon deducting, and did deduct, against the plaintiff’s obj ection, the amount assessed for benefits resulting from the improvement upon two pieces of property owned by the plaintiff, from the amount due upon the contract and paid the balance due thereon to him, giving him therewith receipts for tlie amounts of the assessments. Subsequently, in actions brought by other persons who were assessed for the said improvements, the assessments were adjudged to be illegal and void upon the ground, among others, that the avenue graded was not a public highway. The balance due upon the plaintiff’s contract was paid to him in 1874. This action Was brought, in 1883, to recover the money so retained by the defendant and to have the assessments upon the plaintiff’s property, so far as thby were paid by such money, vacated and canceled.</p> <p>Held, that an action to recover the money so withheld by the defendant might have been brought by the plaintiff, but that this action was barred by the statute of limitations, as it was not brought within six years from the time 'when the plaintiff’s right to recover the money arose.</p>

Appeals from three orders made at Special Term, denying motions of the defendant Henry Y. Attrill to change the place of trial of the above entitled actions from the county of Queens to the county of New York. The motions were made upon the ground that the county of Queens was not the proper place of trial. The motions were argued together, the same questions being presented by each.

This is an action to restrain the defendant from exercising a right of way over a certain strip of land 100 feet wide, extending from Davenport avenue, on Davenport Neck, New Rochelle, east to Long Island Sound (which strip of land is marked as Beach avenue upon the map hereinafter referred to) and to have defendant’s claim to such right of way declared “ a cloud upon the plaintiffs’ tide to the said premises and that the same be adjudged not to exist and to be removed.” The…

<p>Action for divorce — power of the Special Term to review the report of a referee — he can only refuse to confirm it because of fraud or collusion — Code of Civil Procedure, secs. 1128, 1229.</p> <p>An action, brought by a wife for an absolute divorce upon the ground of the defendant’s adultery, was sent to a referee to hear and determine. After his report in favor of the wife had been made and filed, but before a judgment had been entered thereon, the court, upon the motion of the defendant, reopened the case and sent it back to the referee for further proof. The order provided that the defendant might introduce any newly discovered evidence, and might re-examine any witness who desired to change his testimony; that he might be examined under oath if he desired, and that the plaintiff might be examined in her own behalf, in case the defendant was examined in his behalf, and that she might introduce evidence in rebuttal, and to sustain and corroborate her evidence, in so far as it was impaired by the newly discovered evidence of the defendant. In pursuance of this order the referee took additional evidence and reported it to the court, but declined to consider it or to make a new report, holding that he had no power to do so. The defendant then moved to have the orders theretofore made so amended as that the court decide the case on all the testimony taken. This motion was denied.</p> <p>The plaintiff having moved to have the report of the referee confirmed and for judgment in her favor, the court denied the motion, vacated the order of reference and restored the case to the calendar of the court for trial</p> <p>Held, that the court had no power to make the order. (Barnard, P. J., dissenting.)</p> <p>Upon an application to confirm the report of a referee in such cases the court at Special Term has no power to examine the case upon'the merits, or reverse the report for errors and irregularities committed upon the tidal. It can only refuse to confirm the report where fraud, collusion or some similar cause be proved.</p>

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury directed by tbe court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom tbe action was tried.</p> <p>Tbe action was brought upon a promissory note given by tbe defendant’s testatrix, whereby she promised to pay to tbe trustees of tbe First Baptist Church of Tarrytown $2,500, at or before her demise, with interest semi-annually.</p> <p>Tbe defenses were that tbe note was without consideration and that it was procured by undue influence, fraud and misrepresentation, and that the plaintiff had knowledge of those facts when he took the note.</p>

Brantly, by publication, and refusing to set aside a service of the same made thereunder. The plaintiff, the sole testamentary trustee of the estate of Benjamin F. Cooper, deceased, claimed that the said Cooper had transferred six shares of stock of the Utica Steam Cotton Mills to the said William T. Brantly to be held as collateral security for a loan.

<p>Appeal from a decree of the surrogate denying the prayer of the petitioners for an allowance out of the estate of Jesse Iioyt, to be charged to the petitioners either as heirs-at-law or legatees under the will of said Jesse Hoyt, as the case may be, depending on the result of the contest touching his will.</p>

<p>H lection of remedies — once made is irrevocable — when the issuing of an execution upon a judgment, pending an appeal, is a waiver of all light to resort to an undertaking given thereon.</p> <p>This action was brought to recover the value of certain personal property received by the defendants from one Hart, the plaintiff’s assignor. The defense was that the defendants having become sureties upon an undertaking given by Hart, upon an appeal from a judgment recovered against him in an action brought by him against one Taylor, it was agreed that-the property, or its proceeds, should be held to secure them against loss thereby; that the judgment was affirmed and an action brought upon the undertaking against the defendants, who settled the same by paying an amount less than that claimed but greater than the value of the property in question. It appeared that the undertaking was given May 22,1877; that in September, 1878, upon the application of the respondents on that appeal made, upon affidavits made by the defendants showing their insolvency, an order was made requiring Hart to file a new undertaking within twenty days; and in case he failed so to do the judgment was to be executed as if no undertaking had been given. No new undertaking was given. After the lapse of twenty days the respondents on that appeal issued an execution upon the judgment against Hart, which was returned nulla bona. Thereafter the judgment was affirmed and the action was brought against the sureties upon the undertaking and settled by them as above stated.</p> <p>Held, that the respondents on the appeal by issuing the execution and seeking to enforce the judgment elected to rely no longer on the undertaking but to-enforce the judgment.</p> <p>That having once elected to disregard the undertaking they could hot thereafter insist upon its validity</p> <p>That the defendants had a perfect defense to the action brought against them on the undertaking, and should not for that reason be allowed the amount paid by them in settlement thereof.</p>

<p>• Corporation — liability of its president for false statements made to procure m'edit for it — an action wiU lie against, him by the seller of the goods before the pnce is due from the corporation.</p> <p>Where the president of a corporation, who has the management of its business affairs and knows that it is largely indebted and probably insolvent, makes statements as to its affairs, false*in*fact, for the purpose of obtaining credit on its behalf, he becomes personally liable for the consequences of the fraud he thus commits, and in an action brought by the person injured, to recover the damages he has sustained, an order for the arrest of the defendant may properly be granted:</p> <p>Such an action may be brought before the indebtedness of the company for the-goods purchased has matured.</p>

<p>Heceiver in supplementary proceedings — power of the court to remove him — he must t have notice of the charges against him and an opportunity to be heard.</p> <p>A motion to vacate an order of the Supreme Court appointing a receiver of a judgment debtor was 'made by one Marrin, who claimed to have been previously appointed receiver by the Court.of Common Picas. This motion was denied, with leave to the defendant, or any party in interest, to move to remove said receiver and appoint a new one, if objection was made to him, within twenty-four hours after the service of the order. The order then proceeded as follows: “And objection being now made it is ordered that James J. Nealis, Esq., fee and he hereby is substituted as receiver of the defendant in the place ®f Adolph E. Dick ” (the former receiver).</p> <p>Held, that the motion to vacate the (Order having been denied the court could not, upon objections made by ot'her persons, remove the receiver for different and other reasons without first giving to the receiver notice of the charges against him, and an opportunity to be heard.</p>

<p>Assessment — application to vacate it — no objection can be considered, unless it is stated in the petition.</p> <p>Upon an application to vacate an assessment for paving a street in tlie city of New York, the court cannot consider an objection taken thereto, unless it is-stated in the petition.</p>

<p>Criminal law — Chap. 078 of 1869, allowing a person accused of crime to testify in ■his own behalf.> is constitutional — what questions may be put to him to impeach him — what testimony is sufficiently material to the issue, to support an indictment of perjury if it be false.</p> <p>The defendant was tried and convicted of perjury committed upon his trial in the Court of General Sessions for forgery. The indictment alleged that upon the former trial he was duly sworn as a witness in his own behalf. and testified that he had never been arrested upon any charge of manufacturing counterfeit money in his life; that he was never in any prison; that he was never in the Eastern penitentiary, in the city of Philadelphia, in the State of Pennsylvania; tljat he had never served a term of imprisonment in the eastern district of Pennsylvania, and that he had never gone by any other name than that of Edward J. Courtney. The indictment in this case alleged and the jury found that the contrary of each of these statements was true.</p> <p>Held, that the act, chapter 678 of 1869, under which the defendant was allowed to testify in his own behalf on the trial for forgery, was constitutional and valid.</p> <p>That the defendant, having elected to become a witness in his own behalf, occupied the same position as any other witness, and was subject to be fully examined, in conformity with the established rules of evidence, in order to contradict any evidence he might have given, or to impeach or impair his credibility.</p> <p>That the questions as to his confinement were properly put to him, and that the testimony given by him in answer thereto, and which was alleged in this indictment to be false, was material to the issue therein and capable of supporting an indictment for perjury.</p> <p>Upon the trial it was shown that the defendant had been imprisoned under another name for the offense charged in a penitentiary in Philadelphia, commonly known as the Eastern penitentiary, but the correct name of which was the Eastern State Penitentiary of Pennsylvania.</p> <p>Held, that the variance, if any, was an immaterial one in no way prejudicial to the defendant.</p>

<p>New York police force — trial of a member for a violation of its rules — the board may consider evidence taken before a commissioner whose t&rm of office has ceased — right of the accused to appear by counsel— Constitution, art. 1, sec. 6.</p> <p>Where, upon the investigation of charges of improper conduct made against a member of the New York police force, the testimony has been taken by a stenographer before one member of the board of police commissioners, and by him reported to the hoard for its action, the subsequent determination of the term of office of the commissioner before whom the testimony was taken does not deprive the board of jurisdiction to proceed, and hear and decide the case upon the testimony so taken, and such other evidence as may he presented to it. It is not necessary that the commissioner before whom the testimony was taken should continue in office and participate in the final decision of the case, to render the action of the board legal.</p> <p>People ex rel. Ghlhooly v. The Police Commissioners (23 Hun, 351) followed; People ex rel. Mohr v. The Police Commissioners (27 Hun, 462) explained and not " followed.</p> <p>The right of the party accused to have counsel upon the hearing before the board rests in the discretion of that body. Section 6 of article 1 of the Constitution has no application to proceedings instituted against members of the police force for violating the disciplinary rules of that body.</p>

67 awarded to the defendant, as the costs of an appeal to the Court of Appeals, against an equal amount of the general costs of the action awarded to the plaintiff upon the trial of the action. In November, 1882, the defendant moved the court to stay the plaintiff’s proceedings in the action because of the non-payment of certain costs which had previously been awarded to the defendant by the Court of Appeals upon reversing an order for his arrest theretofore granted.

<p>Appeal from an order made by Justice Yan Yorst, denying defendant’s motion to vacate and set aside as null and void tbe verdict herein, and all other proceedings on the part of the plaintiff subsequent to December 4, 1882.</p>

<p>Communication between the judge and the jury after its retirement — when it does not furnish a ground for setting aside the verdict — how the error, if any, in malting such a communication is to be corrected— Code of Criminal Procedure, secs. 467, 465, 331.</p> <p>The defendant was indicted, tried and convicted for an assault with intent to kill. After the jury had retired to deliberate upon their verdict, and while they were under the charge of an officer, a note or communication was sent from one of the jurors to the judge who presided at the trial. The note was taken to him and some writing or note was made by him and sent back to the jury. No proof was given as to the contents of either communication.</p> <p>Held, that as there was no evidence to show that the note or communication received from or sent to the jury had any relation to the case they were considering, and as the presumption was that the judge had not violated his duties, the exchange of the said notes furnished no ground for setting aside the verdict. (Brady, J., dissenting.)</p> <p>Such an error cannot be corrected by a motion in arrest of judgment, under sections 467 or 331 of the Code of Criminal Procedure, nor by a motion for a new trial under section 465 thereof. (Per Daniels,- J.)</p> <p>It seems, that to enable the defendant to raise an objection to the interchange of the said communications he should have had a statement of the fact inserted in the case, so that an opportunity might have been afforded to the judge to make an explanation disclosing the nature and extent of the communication; any erroneous ruling of the judge thereon could then have been reviewed upon appeal. (Per Daniels, J.)</p>

<p>Order of a/rrest — deposit in lieu of the undertaking required by section 559 of the Oode of Oivil Procedure — right of the defendant to have his costs for vacating the order of a/rrest paid therefrom, befoi'e the trial of the action.</p> <p>The plaintiff, upon procuring, an order for the arrest of the defendant in this action, deposited-with the clerk of the court the sum of $250 in place of giving the undertaking required by section 559 of the Code of Civil Procedure. An order denying a motion made by the defendant to vacate the order of arrest was affirmed at the General Term, but reversed by the Court of Appeals where the order of arrest was vacated, with costs.</p> <p>Held, that the defendant was entitled to have the costs so awarded to him paid out of the said fund of $250 without waiting for the trial of the issues in the action.</p>

<p>Certiorari to correct an assessment made against the relators as. executors of Edward O. Stern, deceased.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon. a verdict rendered under tbe direction of tbe court.</p>

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

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

<p>Agreement to pay drafts — when it amounts to an acceptance thereof within 1 Revised, Statutes 768, sec. 8 — right of a person discounting the drafts to enforce the agreement.</p> <p>The firm of Bader & Co., of the city of New Orleans, wrote to the defendants, who resided and were engaged in business in the city of New York, offering to send to them for sale drafts drawn by Bader & Co., on Europe, against sales of cotton, and asking the defendants to allow drafts to be drawn against them in advance, to enable Bader & Co., to make advances to parties for cotton bought, but not received, or to make payments before the shipment was completed or the bills of lading signed. The defendants answered, saying: “ We are ready to pay your sight drafts on us which you advise us as having been drawn against particularly to be described shipments, to the extent of $50,000 currency on account of subsequent remittances, which you would then have to send us within a week, whereupon the credit will be renewed of itself.” The plaintiff having, upon the faith of this letter, discounted drafts drawn by Bader & Co., upon the defendants, brought this action to recover the amount thereof, upon the defendant’s failure to pay them.</p> <p>Held, that the promise of the defendants, contained in the letter, was an uncon ditional one, and operated as an acceptance under section 8, a Revised Statutes [6th ed.], 1160.</p> <p>That the provision as to the amount of the drafts and that they should be drawn against shipments, did not render the agreement to pay conditional, but simply imposed restrictions] and limitations upon the drawers, a failure to observe which would authorize the defendants to declare the contract terminated.</p> <p>That even if the contract were conditional, yet the plaintiff, upon proving that the conditions had been complied with, or waived by the defendants, was entitled to recover.</p>

<p>Sheriff— right of, to take a bond of indemnity upon making a levy — liability of the-sureties thereon.</p> <p>This action was brought upon a bond given to the sheriff of New York, tO' indemnify him against all liability and damages that might arise or happen by reason of his levying upon, attaching and selling certain personal property, supposed to belong to one Brodie, under and by virtue of an execution issued upon a judgment recovered against that person.</p> <p>Held, that the sheriff had a right to demand and receive such a bond, and that it was not void as taken colore officii.</p> <p>The property levied upon was of the value of from $12,000 to $14,000, anda judgment for $16,922.35 for its wrongful seizure was subsequently recovered against the sheriff. Only $2,054.05 was made upon the execution over the' expenses of the sale. The court was requested to submit to the jury the question “whether or not the judgment against O’Brien (the sheriff) was not recovered in part for his unlawful oppression and illegal acts committed by him, not covered by the execution or the bond of indemnity.”</p> <p>Held, that the court erred in refusing so to charge, as the sureties were only bound to pay or indemnify the sheriff, so far as his liability arose out of what was done in the way of seizing the property and appropriating it to the payment of the debt mentioned in the execution, and not for what was occasioned by the wrongful or negligent acts of the sheriff or his officers.</p>

<p>Attachment — maty be vacated on motion after it has become inoperative by reason of a failure to serve the summons — Code of Civil Procedure, sec. 638.</p> <p>A motion lies to vacate an attachment which has become inoperative by reason of the failure of the plaintiff to serve the summons within thirty days from the time of the issuing and service of the attachment.</p>

<p>Costs— separate bills of costs — when the respondents, upon an appeal, can tax but one bill.</p> <p>In an action for false imprisonment, the two defendants having answered and defended separately, were allowed separate bills of costs. Upon an appeal taken by the plaintiff to the General Term, the case of each defendant was argued by the same counsel. The General Term affirmed the judgment, “ with costs and disbursements of said appeal to the defendants, respondents, to be taxed by the clerk of this court.”</p> <p>Held,, that the respondents could tax but one bill of costs.</p>

<p>Judgment creditor — an action to set aside a fraudulent conveyance, and to hare the property adjudged to be subject to the lien of his judgment and the execution issued thereon and then in the sheriff's hands, is not affected by the return, during its pendency, of the execution — when devisees of the judgment debtor need not be made parties — a voluntary conveyance by an insolvent is void — an assignment must be assented to by the assignee —1877, chap. 466, sec. 2 — When a fn’m creditor may.set aside an assignment of the individual property of the partner — misjoinder of causes of action.</p> <p>The plaintiff, having recovered a judgment against a firm composed of Robert and George Fielding, issued an execution thereon, and, while the same was in the hands of the sheriff, brought this action to set aside as fraudulent a general assignment for the benefit of creditors and deeds of certain lands which had been made and delivered by one of the debtors after the debt owing to the plaintiff had been incurred, but before the judgment therefor had been recovered. The plaintiff sought to have the assignment and deeds adjudged to be fraudulent and void, and the property affected by them subjected to the lien of his judgment and of the execution issued thereon. After the commencement of the action the sheriff returned the execution wholly unsatisfied.</p> <p>Held, that the return of the execution by the sheriff during the pendency of the action did not prevent the plaintiff from maintaining and prosecuting it.</p> <p>After the recovery of the plaintiff’s judgment, and before the commencement of this action, George Fielding, one of the judgment debtors, died leaving a will by which he devised and bequeathed all his real and personal property to his widow and two sons.</p> <p>Held, that as the property to be affected by this action had prior to the testator’s death been conveyed by him it could not be held to be included within these provisions of the will, and that it was therefore unnecessary to make the widow or children parties to the action.</p> <p>Voluntary conveyances, based upon a merely nominal consideration, made by an insolvent debtor are, as against his creditors, fraudulent and void as a matter of law.</p> <p>The judgment debtors, who were partners, joined in a general assignment of their joint property for the benefit of their joint creditors. Subsequently one of the said debtors assigned all his individual property to the same assignee for the benefit of his creditors, according to the provisions of the joint assignment.</p> <p>Held, that the second conveyance was, in effect, a distinct and separate assignment, and that the assent of the assignee, subscribed and acknowledged as provided in section 2 of chapter 466 of 1877, was essential to its validity.</p> <p>That the fact that the property to be affected by the judgment was the individual and separate property of the debtor, and was, for that reason, primarily liable for the payment of his individual debts, did not prevent the plaintiff from maintaining the action as no claim was made by any individual creditors, and as the plaintiff’s judgment became when docketed a lien upon the real estate individually owned by the debtors.</p> <p>That there was no misjoinder of causes of action in the complaint.</p>

<p>General assignment— avoided by the introduction of fictitious debts in the schedule — fraud, on the pari of the assignor only, need be shown — only the assignor himself can testify as to whether or not the assignment was made in good faith.</p> <p>When a debtor, who has made a general assignment for the benefit of creditors, sets out in the schedule of debts and liabilities sworn to by him, debts due to friends which have been paid and discharged, such conduct is fraudulent and renders the assignment voidable.</p> <p>To entitle a creditor to- avoid an assignment, it is sufficient if a fraudulent intent on the part of the assignor be shown; it is not necessary to show that the assignee was a party to the fraud.</p> <p>The husband of an insolvent assignor cannot testify as to whether the assignment was executed in good faith, although he has acted as the agent of his wife in the management of her property.</p>

<p>deference — cm action to charge lands in the hands of hews or devisees, with debts of an ancestor, is only referable by consent— Code of Civil Procedure, sec. 1013 — When the right to appeal is not lost by pa/rticipating in the reference.</p> <p>An action brought by tbe creditor of a deceased debtor against bis heirs or devisees, to collect tbe debt from real estate acquired by them from tbe deceased, cannot be referred without tbe consent of ail tbe parties, even though portions of the claims which the plaintiff seeks to enforce consist of accounts comprising numerous items.</p> <p>’Where an order of reference has.been made in such an action, upon the defendant’s default, and an application- made by him to open .the default, and for a rehearing, has been denied, the defendant does not, by appearing before the refeiee and examining and producing witnesses, waive his right to appeal from the order denying his motion to open the default if, when he first appears before the referee, he objects to the reference as unauthorized and renews his objection upon the closing of the hearing.</p>

<p>Appeal from an order made at Special Term, directing the payment by the defendant of the sum of $250 as a counsel fee for the services of the plaintiff’s counsel since the 11th of May, 1882.</p>

Aepeal from an interlocutory judgment, entered upon an order overruling a demurrer to the plaintiff’s complaint. The defendants demurred upon the grounds : (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the plaintiff had not capacity to sue; (3) that there was a misjoinder of parties plaintiff; (4) a defect of parties plaintiff; (5) a defect of parties defendant; (6) that several causes of action were improperly united.

The action was brought to recover damages for the conversion of a quantity of cotton seed oil which was claimed to have belonged to the plaintiffs.

Motion by the defendants for a new trial on exceptions ordered to be first heard at the General Term, after a verdict had been directed in favor of the plaintiff.

Samuel D. Faulkner was surrogate of Livingston county during all the time mentioned in the proceedings had in the surrogate’s ■court for that county which, are involved in this action. He died in office on the 9th day of August, 1878. Samuel Finley, a resident of that county, died in 1876, seized and possessed of two parcels of real estate situated in that county, and administrators on his estate were duly appointed and entered' upon the discharge of their duties.

<p>Appeal from an order of tlie Onondaga County Court granting permission to the plaintiff to amend the summons and complaint by adding the name of another person as defendant.</p>

The plaintiff was appointed receiver of the Urbana Wine Company, an insolvent corporation, on the 25th day of January, 1881. On the 22d day of November, 1880, the defendant, the First National Bank of Bath, commenced an action against the Urbana Wine Company by the service of a summons and verified complaint on the general superintendent of the company.

The line of the defendant’s railroad is along and through Wayne street, in the village, of Olean. The plaintiff is the owner of a house and lot on .the south side of Wayne street, ninety feet front, and bounded on the north by the center of said street.

Nelson J. Beach, the testetor, died in February, 1876, the owner of both real and personal property.' The defendants, Emily P. Beach, Alonzo H. Green and Horace L. Green, were appointed executrix and executors of his last will and testament, and the same was duly admitted to probate. The will after making bequests to his wife and some of his children, provided for a division of his estate to and among his children.

<p>Appeal from a judgment, entered on a verdict in an action originally commenced in the Chautauqua County Court.</p> <p>The action was brought to recover from the defendant certain articles of personal property of which the plaintiff claimed to be the owner. The defendant, as sheriff, seized the property, of which the plaintiff had actual possession at the time, under and by virtue of a warrant issued in an action to foreclose a lien, in pursuance of the provisions of sections 1737,1738 of the Code of Civil Procedure.</p> <p>The plaintiff was not a party to the action in which the warrant was issued. On the trial the plaintiff’s evidence tended to prove that she was the owner of the property, and that the lien set up by the plaintiff in the foreclosure suit was subsequent and inferior to that of her own.</p> <p>The only question of importance involved in this action is whether the plaintiff as owner of the property, involved in the litigation, can maintain this action as against the sheriff who stands upon the warrant as his justification.</p>

<p>Appeal from an order of the Cattaraugus County Court, made in an action originally commenced in a Justice’s Court.</p>

Bernard Baxter died intestate on the 27th day of May, 1862, leaving him surviving his widow, the defendant Bridget Baxter, and his three children, Mary Ann Baxter, then aged eight years, Bernard Baxter, aged two years, and Ella Baxter, seven months old, all of whom are defendants in this action. George Hyland and Bridget Baxter, the widow, were duly appointed administrator and administratrix by the surrogate of Livingston county.

Charles D. Murphy, the plaintiff’s testator, received injuries from which he died, while in the defendant’s employ and in the line of his duty. The deceased survived the injuries some fourteen months. In his lifetime he commenced an action against the defendant, which was pending at the time of his death. After issues were joined in that action, the plaintiff was examined as a witness in his own behalf, in pursuance of section 870 of the Code of Civil Procedure.

The complaint contained two counts, in the first the plaintiff claimed to recover, as the assignee of one Henderson, who owned an undivided one-seventh of the premises, the rental value thereof from the defendant who had wrongfully entered into possession thereof; in the second, she set out the recovery of a judgment in an action of ejectment brought by Henderson against the defendant tO’ recover the possession of the said undivided oneheventh of the said premises, and…

Appeal by certain of the defendants, who were impleaded with numerous others, from a judgment entered in Jefferson county, in this action brought to foreclose a mortgage upon real estate.

The action was brought for a foreclosure of a contract for the sale and purchase of land against the original vendees Canfield and Pemberton, and against Thomas Kelley, who purchased from them their interest in one-half of the premises and made certain improvements thereon.

The action was brought to have the estate of the plaintiffs’ intestate declared absolved from all liability upon a note and a judgment entered upon it, which was recovered against the deceased in his lifetime, to wit, on the 18th day of May, 1876, in this court for $306.72. The note, which was a joint one, was made on the 27th of October, 1874, by Lucinda Bond and Thomas A. Osborne,, the plaintiffs’ intestate, who was an acconfmodation maker.

<p>Appeal from a judgment in Onondaga county, entered upon a nonsuit granted at the Onondaga Circuit, and also an appeal from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

The action was brought to recover damages occasioned„by the alleged negligent killing of the plaintiff’s intestate by the defendant.

Writ of error to tbe Court of Sessions of Orleans county to review a judgment and conviction of tbe plaintiff in error for tbe offense of resisting an officer in tbe execution of process.

<p>Canal contract — construction of it — right of the State to set off an over-payment made under a mistake of fact, against a balance due from it to the same contractor under another contract.</p> <p>One Belden entered into a contract 'with the State for the performance of certain work upon the canals. The contract provided, among other things, that all materials excavated should “be deposited so as to form the necessary banks for the canal, and in such other places as the State engineer shall direct, and when the same are carried over two hundred feet parallel with the line of the canal for the purpose of making embankments for the canal, or for the same distances in direct line to form bridge embankments or guard banks (spoil banks not included), the same shall be paid for both as excavation and embankments. No materials embraced under the head of excavation, and paid for as such, will, when deposited in any embankment, be paid for as embankment unless the same has been moved two hundred feet in a line parallel with the canal, except as before specified for bridge embankments, and all embankments made from materials not embraced in the excavation will only be paid for as embankments.” The contract provided that the work should be conducted in such a manner as not to interfere with or disturb the navigation and use of the canal, thereby requiring the bulk of the work to be carried on when the canals-were closed by reason of frost and ice.</p> <p>The contractor claimed that, at the time the excavation was made, much of the-earth excavated was frozen and unfit to be placed at that time in the bank; that it was, for that reason, placed in what are known as “spoil banks,” much of it in the prism of the canal, and that, when thawed out, it was removed to the side of the canal and placed in the embankment. For the earth so excavated and used they claimed to be entitled to charge as for embankment as well as for excavation, although it had not been removed 200 feet in a line parallel with the canal, or used for bridge embankments.</p> <p>Held, that the claim was properly overruled by the board of audit.</p> <p>Three contracts were made by Belden' with the State. On the first he had been overpaid by the sum of $102,G10.80; on the second there was still due and unpaid the sum of $7,605, and on the third the sum of $9,750.60. The payments were made to the contractor by the disbursing agents of the State, out of moneys appropriated by the legislature, upon monthly estimates of the work made by the engineers employed by the State, as provided in the contract. The contract provided a mode for correcting any overpayment made iu consequence of error in the monthly estimates by authorizing the State to retain fifteen per cent of the amount of the work done until the final completion of the work. The work was completed on May 17, 1875. After that date payments were made to the contractor amounting to $81,409, the last of which, amounting to $19,023, was made on June 1,1875. No action of the legislature, taken after these payments, which could be construed as a ratification thereof, was proved.</p> <p>Held, that the board of audit properly decided that the overpayment made by the State was-made under a mistake of fact, and that the amount so overpaid might and should be set off against the balances due on the other contracts. (I-Iardin, J., dissenting.)</p> <p>People v. Denison (80 N. Y., 656; affirming S. C., 19 Hun, 137), distinguished.</p>

<p>Appeal from a judgment, entered on a verdict rendered at the Jefferson Circuit, and from an order denying the defendant’s motion for a new trial and allowing the plaintiff costs against the defendant as executrix and against the estate of her testator.</p>

<p>Surrogate —ju/risdietion over executors — he cannot compel them to account for property held as the agents for a legatee.</p> <p>Upon the hearing of an applicaton to compel executors to account, in a Surrogate’s Court, in respect to certain specific securities, it appeared that, prior thereto, a settlement had been made between the legatee seeking to compel the accounting, and the executors, by which the said securities were transferred to the the said legatee as a part of her share in the estate.</p> <p>Held, that, after such settlement, the securities were held by the executors as agents and trustees for the legatee, and not as executors, and that the surrogate had no power to compel them to account for their actions in regard to them.</p> <p>Bonfanti v. Beguerre (3 Bradf., 431) distinguished.</p>

<p>Appeal from an order made a,t a Special Term, on the return of a certiorari, to review an assessment made by the appellants against the petitoners.</p>

<p>Appeal from an order of the Erie Special Term, allowing an amendment of tbe warrant of attachment issued herein and refusing to vacate the same.</p>

Appeal from a judgment rendered upon the decision of a justice of this court, after a trial by him at the Oneida Circuit, without a >7-

<p>Complaint— when the same transaction or instrument may he set out in more than one count— Code of Civil Procedure, secs, 481, sub. 2.</p> <p>The plain! iff, in the first count of his complaint, alleged that he did certain work for the defendant, and expended in so doing the sum of seven dollars, and that in consideration thereof the defendant promised to pay the sum of $2,568.35 for the said work, and repay the sum so expended. The second count alleged that he did work for the defendant, that the latter promised to pay the value thereof, and that it was worth the sum of $2,563.35. The work alleged in each count was the same. Upon a motion to compel the plaintiff to elect between the first and second count and to strike out the other, the plaintiff read affidavits showing that the contract, in pursuance of which the work was done, was made partly with the defendant, personally, and partly with a third person, who was claimed to be the defendant’s agent.</p> <p>Meld, that the motion was properly denied.</p> <p>Bvrdseye v. Smith (32 Barb., 217), and Velie v. The Newark Gity Insurance Company (65 How., 1), followed.</p>

Cboss appeals from an order of tbe Monroe Special Term denying tbe defendant’s motion to vacate an order for' tbe examination of tbe defendant Brackett as a witness before trial, and granting tbe motion to vacate sncb order as to tbe witness Warren. Tbe action was brongbt against Brackett individually and as president of the Rochester and Oleopolis Oil Company on certain notes alleged to have been made by that company.

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

<p>Eeport of railroad commissioners — it will not be set aside for the improper' receipt by them of a communication from the counsel for the compomy, which did not affect their action.</p> <p>A report of commissioners appointed to appraise the damages to be occasioned by the taking of land for railroad purposes, will not be set aside for their improper action in receiving, after the submission of the case and without the knowledge of the land owner, a written statement from the counsel of the railroad containing certain computations of the value of the premises to be taken, which computation had been made orally by the said counsel before the commissioners at the hearing.</p>

<p>Action to have a ma/rriage declared void — pozoer of the court to awa/rd a counsel fee and alimony to the wife.</p> <p>In an action brought by a husband to have his marriage with the defendant declared void, on the ground that she had a former husband living at the time it was celebrated, the court has power to make an order allowing the defendant a counsel fee and alimony pendente lite.</p>

<p>Appeal from an order made at the Onondaga Circuit and Special Term, denying the plaintiff’s motion to amend the complaint herein after verdict, by increasing the claim for damages therein to correspond with the verdict, and refusing to allow the plaintiff to treble-the damages found by the jury, except upon the condition that he remit the excess beyond the amount of the verdict and interest thereon from the time it was rendered.</p>

<p>Appeal from a judgment, entered upon tbe trial of tliis action by the court without a jury'.</p>

<p>Compensation for land takenfor a rail/road— when an apparent existing privilege or license may he treated as valuable by the commissioners.</p> <p>One Turnbull owned a farm of about 200 acres, which was divided into two' nearly equal parts by the Erie canal, which ran through it from east to west. The part on the north of the canal was cultivated and upon it were the farm buildings. The part on the south was hilly and there were.no buildings upon it. A railroad company sought to acquire title to a strip of land in the part lying south of the canal; the said strip being about 1,754 feet long and from 290 to 400 feet wide and lying along the line of the canal. Upon this strip'.was a never failing spring, the water from which was conducted in a pipe under the canal to the buildings on the part lying north of the canal, where it was used for the general purposes of the farm, there being no other source of supply on that side. The two parts of the farm were connected by a farm bridge across the canal. The slock which were pastured upon the south part were watered at the canal and at the spring. The pipe was laid under the canal when Turnbull bought the farm, more than thirteen years before the application was made, and it had been used by him ever since without objection made by any person. It did not appear by what authority the pipe had been so laid under the canal.</p> <p>Held, that in estimating the damages which would be occasioned by the taking of the said strip by the railroad, the commissioners properly treated the farm as a whole and considered its value to be increased by the connection which had been made between the spring on the south and the buildings on the north part of the farm.</p>

<p>Certiorari to review an order and decision of the board of commissioners to regulate ferries between the city of Troy and the village of West Troy, by which a license was granted to the respondent.</p>

<p>Evidence — when a witness is interested, in the event of the action— Oode of Qivil Procedure, sea. 829.</p> <p>One Farnbam, a deputy of tbe plaintiff, received an execution against one Bueldey and levied thereunder upon certain property belonging to a Mrs. Buckley, for the taking of which a judgment was recovered by Mrs. Buckley against the plaintiff. This action was brought to recover the amount of the said judgment, against the executors of the attorney who issued the execution,upon a parol indemnity against any loss which might be occasioned by the levy, which he was alleged to have given to the plaintiff. Upon the trial Farnham was called as a witness for the plaintiff to show that the deceased attorney gave the alleged indemnity.</p> <p>Held, that he was interested in the event of the action, and that his testimony was inadmissible under section 829 of the Code of Civil Procedure. (Potter, J., dissenting.)</p>

<p>Jurisdiction — when the courts of this State will not entei'tain jurisdiction over an action affecting trust property in another State.</p> <p>One Alice Branch died, a resident of Connecticut, in 1850, leaving a will, which was there duly admitted to prohate, hy which she disposed of her real and personal property, all of which was in that State. Upon the petition of the devisees an act was passed by the general assembly of that State, in 1854, hy which the defendant and one Stanton were appointed trustees and authorized to sell the whole or a portion of the said real estate and invest the proceeds in certain securities, which, together with the increase therefrom, they were to hold and apply in the same manner as the real estate so sold, was itself disposed of hy the will. They were required to give to a court of probate in that State a bond, with sureties, conditioned for the faithful performance of the duties of their office, and which required them to make a return of their doings to the said court and to render an annual account of the trust. No trust was created hy the will, and the act was passed on account of the infancy of the persons interested and the difficulty of keeping the property in repair, etc.</p> <p>One of the trustees having died this action was brought hy the son of one of the devisees, who had also died, against the defendant, as surviving trustee, to compel him to account and pay over to the plaintiff the share he was entitled to receive.</p> <p>Held, that the court should refuse to entertain jurisdiction over the action and leave the plaintiff to his remedy in the courts of the State of Connecticut, as no circumstances were shown which would prevent him from there receiving any redress to which he might he entitled.</p>

<p>Statute of frauds — promise by one to pay the debt of another — estoppel — when a party may disprove facts he has admitted.</p> <p>The plaintiff being about to sell certain real estate mortgaged to him by one Silliman under a judgment of foreclosure, the defendant requested him to adjourn the sale saying that the debtor, Silliman, had placed in his hands ferry stock to bid off the property and pay the plaintiff his full debt, but that they were not quite ready, and that he would do so if the sale were adjourned tea days; that Silliman had put ferry stock into his hands for the purpose of paying for this property, and he would he prepared in the course of about ten days to pay for it.</p> <p>field, that the agreement was void, under the- statute of frauds, as being a verbal agreement to answer for the debt of another. (Potter, J., dissenting.)</p> <p>If the promise should be construed as one not to pay the debt, but to bid in thij property at the sale upon the adjourned day, for the full amount due on the mortgage, it seems that it would be void as a verbal agreement for the purchase of land. (Per Learned, P. J.)</p> <p>It seems, that the defendant was not estopped, by the statements so made by him, from showing upon the trial of this action that Silliman had not put any ferry .stock into his hands for the purpose stated. (Per Learned, P. J.; Potter, J., contra.)</p>

The action was brought to recover an unpaid balance of moneys deposited by the plaintiff with the defendant on February 19,1869. The money so deposited belonged to a Mr. John Banker, and it had been paid by the bank to his committee in pursuance of an order made by a county judge and upon a bond of indemnity required by and given to the bank.

<p>Negligence — carelessness in starting a fire — a person is only liable for the immediate and proximate effects of Ms acts.</p> <p>On May 29, 1882, sparks and burning cinders escaped, through, the defendant’s, negligence, from the top of a smoke-stack in the defendant’s factory and set fire to the roof of an old unoccupied building situated about 280 feet in a southeasterly direction from, and on the same side of the street with, the smoke-stack. Owing to the lack of proper appliances and to the fact that the doors of the building were looked, the roof of the building could not be reached until the fire had spread across the street to an old barn some 110 feet long and some: fifty feet distant; from this barn it again passed across the street to a saloon and other buildings, and from these to a building owned by the plaintiff which stood near the smoke-stack from which the sparks were emitted.</p> <p>In an action by the plaintiff to recover the damages occasioned by the loss of his building:</p> <p>Held, that the defendant’s negligence was not the immediate and proximate cause of the burning of the plaintiff’s building, and that he was not liable for the damages occasioned thereby.</p> <p>Ryan v. New York Central Raikoad (85 N. Y., 210) followed.</p>

<p>Repair of bridges — liability of adjoining towns for the cost thereof — right of a commissioner of highways of one town to maintain an action to enforce such liability against the commissioner of another town — Rule that voluntary payments cannot be recovered — applicability of it to-payments made by a public officer — whenpa/rties are not concluded by a settlement of their accounts.</p> <p>The southerly end of a public bridge crossing the Hoosick river is in the town of Hoosick, while the northerly end thereof is partly in the town of White Greek and partly in the town of Cambridge. In 1879 the commissioners of highways of all three towns met and examined the bridge, and agreed that it must and should be repaired. There was no agreement as to the proportion of the expense which each town should bear, but it was supposed that, legally, one-half thereof should be borne by the town of Hoosick and one-quarter thereof by each of the other towns. The sum of $2,076.81 was expended in making the repairs; the commissioners of the different towns having expended that amount in severally purchasing materials and employing laborers. The coñimissioners of the town of Hoosick paid the sum of $1,026.28; the commissioners of the town of White Creek, $550.78, and those of Cambridge, $499.75.</p> <p>The commissioners of the town of Hoosick, claiming that the expense should have been divided equally between the three towns, brought' this action against the commissioners of one of the other towns to recover its share of the overpayment made hy the town of Hoosick.</p> <p>jHeld, that the rule that money voluntarily paid, with full knowledge of the facts, cannot he recovered back, did not prevent the plaintiff from maintaining this action. (Potter, J., dissenting.)</p> <p>{¿lime, as to whether this rule applies to payments made by a public officer out of public funds.</p> <p>After the repairs were nearly completed the commissioners met to see how they stood, and after looking over the accounts Puller, the defendant, told the plaintiff to pay him eighteen dollars and thirty cents and that he, Puller, would pay two men in Washington county, and that the plaintiff should pay the men in Rensselaer county, and that would make it all right. This was done, and the plaintiff took the defendant’s receipt for the money so paid to him.</p> <p>Held, that this was not such a final settlement and accounting as estopped the plaintiff from maintaining this action. (Potter, J., dissenting.)</p> <p>Chapter 482 of 1875, authorizing the boards of supervisors of the several counties of the State to apportion, as such board might deem equitable, the expense of the construction of certain public bridges, and to provide for the care, preservation and reparation thereof, is permissive only; and, in the absence of all action thereunder by the board of supervisors, the old rule apportioning the cost of repairing bridges among the adjoining towns, established by chapter 225 of 1841, as amended by chapter 383 of 1857, still continues in force.</p> <p>Sections 2 and 3 of the act of 1841, as amended by the act of 1857, conferred upon the plaintiff, as commissioner of the town of Hoosick, power to maintain this action against the defendant, as commissioner of the town of White Creek, to recover the share of the cost of making the said repairs, which was properly chargeable upon the latter town. (Potter, J., dissenting.)</p>

Appeal by tbe plaintiff from an order of the Rensselaer county judge, affirming the action of the clerk of Rensselaer county in refusing to tax the plaintiff’s costs on the trial of the action, in the Rensselaer County Court, on an appeal, from a judgment of a J ustice’s Court, and dismissing the appeal taken from such refusal to tax such costs.

Appeal by the plaintiff from a judgment of nonsuit, rendered at the Schenectady Circuit upon the plaintiff’s opening of the case-to the jury. The action was brought to recover for personal injuries sustained by the plaintiff by reason of his having fallen on a sidewalk in the city of Schenectady.

The action was brought by the holder of a promissory note against the indorser thereof. It was claimed, that the note had been lost after it came into the possession of the plaintiff. The principal question arose upon the admissibility of a certificate of a notary, showing .that the note had been duly protested and the indorser notified thereof.

This action was commenced July 2, 1881, and was brought to partition certain real property situated in the village of Deposit,. Broome county, N. T. ; tbe said premises consisting of about six acres of land, on which was a valuable water-power and grist-mill, operated by both water and steam.

<p>Action to recover a chattel — when the facte showing the detention to he unlawful need not he specifically alleged in the complaint — Gode of Oivil Procedure, sea. 1721.</p> <p>The complaint in this action, brought to recover two certificates of stock issued by the defendant, or their value, alleged that on the 3d of October, 1878, the plaintiff was, and that he still is, the owner of the said certificates; that while the plaintiff was such owner, and on or about the said third of October, the said certificates came into the custody and possession of the defendant, and that, although often requested by the plaintiff to return the same to him, it had refused so to do, and that it had, on the contrary, converted the same to its own use.</p> <p>Held, that it was not necessary, under section 1721 of the Code of Civil Procedure, to allege in the complaint any facts showing the detention of the certificates by the defendant to be unlawful, and that a demurrer interposed thereto, upon the ground that it did not state facts sufficient to constitute a cause of action, was properly overruled.</p>

<p>Taxes — duty of the county treasurer to apply a portion of the town taxes collected, from, railroad property to the redemption of bonds issued to aid it— how the duty may be enforced —1870, chap. 789, see. 4, as amended by chap. 288 of 1871 — Appeal — it lies from an order overruling a demurrer— Code of Civil Procedure, sec. 1349.</p> <p>Section 4 of chapter 789 of 1870, as amended by chapter 283 of 1871, provides that “ dll taxes, except school and road taxes,” or so much thereof as may be necessary, which shall be collected for the next thirty years on the assessed valuation of any railroad in a town which has issued bonds to aid in its construction, “shall be paid over to the treasurer of the county; ” and that it shall be the duty of the treasurer, “ with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him,” to purchase the bonds so issued by the town, or to invest such money if the bonds could not be purchased at or below their par value.'</p> <p>In this action, brought by the supervisor of a town against the board of supervisors and the county treasurer to compel them to comply with the requirements of the said law, the complaint alleged, among other things, that “ of the taxes levied by the board of supervisors of said county, in the years of 1869, 1870 ' and 1871, on the assessed valuation of said railroad in said town, and collected in said town by virtue of such levy,” there was paid over to the county treasurer, exclusive of school and road taxes, certain definite sums, specifying them, in each year, and that the said sums had not been invested as required by the act, but had been used for the general purposes of the county:</p> <p>Held, that the complaint was sufficient; that it was not necessary that it should explicitly aver that "all” the taxes collected had be'en paid over to the county treasurer.</p> <p>That the presumption was that the public officers had duly assessed, collected and paid over all the taxes as required by law; and that, even if this were not so, it was the duty of the county treasurer to apply such moneys as he actually received to the purposes specified in the act.</p> <p>An appeal lies to the General Term, under section 1349 of the Code of Civil Procedure, from an order overruling a demurrer interposed to the complaint.</p>

” The “ Home of the Friendless ” is a branch of the “American Female Guardian Society,” which was incorporated by chapter 244 ■of 1849.

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

The complaint alleged, among other things, that the defendant had imposed an assessment upon a lot owned by the plaintiff, and lying within its corporate limits; that the proceedings resulting in the assessment were “ prosecuted under color of, but in violation of, said statutes and in disregard of their provisions, to wit, among other things, in this, that the commissioners of estimate and assessment appointed under the said acts so known as the charter of said village as…

<p>Interest — runs at the rate fixed by law when allowed as damages — 1879, chap. 538 — Costs — effect of an affirmance by the Court of Appeals, with costs, of an order granting a new trial — disbursements — only the expenses actually incurred can be taxed.</p> <p>In an action, brought to recover arreai's of dividends on guaranteed stock issued by the defendant, a judgment dismissing the complaint was reversed at the General Term and a new trial ordered. The defendant having given the usual stipulation and appealed to the Court of Appeals, the order was there affirmed and judgment absolute ordered against the defendant, with costs. Thereafter •and in June, 1883, upon the plaintiff’s motion an extra allowance was granted by an order of the Special Term and a judgment was entered in his favor for the amount of the dividends, with interest thereon at the rate of seven per cent per annum from the time they were respectively payable to the time of the entering of the judgment, together with the costs of the action.</p> <p>Meld, that as the plaintiff recovered interest upon the amounts of the dividends as damages and not upon any contract, the rate per cent shsuld have been fixed at six per cent from and after January 1, 1880.</p> <p>Sanders v. Lalce Shore and Michigan Southern Baik’oad Company (MS. of Ct. of App.) followed.</p> <p>'That under the remittitur of the Court of Appeals the plaintiff was entitled not only to the costs in the Court of Appeals, but also to the costs of the trial in the court below.</p> <p>That the court had power to grant his motion for an extra allowance, and that the General Term could not, under the facts of this case, interfere with the discretion exercised by it.</p> <p>It appeared that certain documents were used upon the trial of each of several actions brought by different plaintiffs against the same defendant to recover the said arrears of dividends, and that the cost of procuring them — the sum of 1165 — Was taxed as a disbursement in each case.</p> <p>Meld, that in the absence of any proof to show that this sum was paid for the documents in each case, the amount should have been taxed hut once.</p>

<p>Practice — striking out allegations from the complaint — action to recover a chattel wrongfully detained — when the fads showing the detention to be wrongful should be stated in the complaint— Code of Oivil Procedwe, sec. 1721.</p> <p>This action was brought against the defendants Taussig & Hammerschlag and their general assignee, Barricklo, to recover certain goods, or their value, which had been obtained from the plaintiff. The complaint alleged the sale of the goods by the plaintiff to the defendants Taussig & Hammerschlag; that the latter were at the time hopelessly insolvent and made the purchase without intending to pay for the goods, but with the intention of failing and depriving the plaintiff of its goods without paying therefor; that the plaintiff believing that the said defendants were solvent, and having no knowledge of their insolvency or of their intention to fail, shipped the goods and drew drafts for the price thereof, payable one day after sight, which were not paid. The •complaint then alleged that at or about the time of obtaining the said goods, and within a few months prior thereto, the said defendants mortgaged, transferred, removed, concealed and disposed of a part of their property with intent tó defiaud their creditors, and with the intent to obtain from the plaintiff and others goods, wares and merchandise and not pay for the same; that thereafter they failed and made a pretended general assignment to the defendant Barricklo, and thereby attempted to unlawfully transfer the goods belonging to the plaintiff to Barricklo; that at the time of the purchase of the goods the debts and liabilities of the purchasers amounted to $137,192.41, or thereabouts, and their contingent liabilities to the further sum of $93,931.16, while the actual value of their assets was $31,821.40, or thereabouts; that the plaintiff upon learning of the insolvency and fraud of the defendants disaffirmed the sale.</p> <p>The defendants moved to strike out the allegations of the complaint, setting forth the fraudulent representations made by the defendants to induce sales by sellers other than the plaintiff, and those stating the amounts of the defendants’ debts and liabilities, and the disaffirmance of the sale.</p> <p>Held, that the motion was properly denied.</p> <p>That as section 1721 of the Code of Civil Procedure required the complaint, in actions to recover a chattel founded upon its wrongful detention, to set forth the facts showing the detention to be wrongful, the plaintiff should not be required to incur any danger from an omission to state the facts sought to be stricken out.</p> <p>Qumre, as to whether the said section (1721) related to any cases other than those involving the detention of a chattel, eo nomine, when the possession theremf has been improperly usurped by the defendant and not procured by a sale fraudulently induced.</p>

<p>Appeal from an order made at a Special Term, confirming tbe decision of tbe tax commissioners.</p>

<p>Appeal from an order made at a Special Term vacating and setting aside the service of the summons and complaint herein.</p> <p>The action was brought against the American Mining Stock Exchange, “John R. Mullaney, as'president or chairman of said exchange,” and five persons, trustees of the insurance and gratuity fund of said exchange.</p> <p>The complaint alleged that the exchange was an unincorporated voluntary association, composed of about 100 members. Two copies of the summons and- complaint were served upon the defendant Mullaney, one directed to the “ American Mining Stock Exchange ” and the other to “John R. Mullaney, president, or chairihan thereof.”</p>

<p>Appeal from a judgment dismissing the complaint, entered upon. a nonsuit directed at the circuit.</p>

<p>Appeal from an order denying the application of Messrs. Lyon & Ogden for counsel fees in conducting this proceeding.</p>

Appeals from a judgment, entered ontlie direction of the Special Term, and a motion on behalf of the defendant for the re-argument of the appeal from the interlocutory judgment herein, heretofore decided.

Appeals from a judgment, recovered upon the verdict of a jury which directed the removal of telegraph poles erected upon the southerly side of Twenty-first street, from Fifth to Sixth avenues, in tbe city of N ew Y ork, as nuisances, and from orders denying motions for new trials, and other orders relating to certain other proceedings in the action.

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

<p>Appeal from an order made at a Special Term directing the receiver to pay over to Joseph Pool the sum of sixty-nine dollars and thirty-two cents, costs which he had received upon a judgment ■in favor of the railroad company against Ezra Gildersleeve.</p> <p>The amount of the judgment had been collected by the receiver, who had been appointed in proceedings supplementary to execution during the pending of the action which 'was defended by Pool.</p>

<p>Attachment — the fees and expenses of the sheriff are to be adjusted by the judge issuing the warrant — they cannot be adjusted by the court — on an application for their adjustment no direction can be given as to the person by whom■ they shall be paid— Code of Civil Procedure, sec. 8307, sub. 2, 3287.</p> <p>The fees and expenses of the sheriff upon an attachment issued in this action were partially settled by an order made by the court on November 15,1882, and finally settled by a second order made by the court on June 1, 1883, prior to which time the attachment had been discharged by the voluntary action of the plaintiffs. By these orders the plaintiffs were ordered and directed to pay the amount so allowed to the sheriff, and he was thereupon directed to release and deliver the property attached to the defendant. No appeal was taken from either of these orders. Subsequently the plaintiffs moved to amend the orders by striking out so much thereof as required the plaintiffs to pay the amount of the said fees to the sheriff.</p> <p>■Held, that under section 3807 of the Code of Civil Procedure, the judge had no power to do more than adjust the fees, compensation and expenses of the sheriff, and that he could not inquire or determine as to the liability of the parties for the payment of the amount so adjusted.</p> <p>That as there was no authority for the insertion in the order of the directions for the payment of the fees, etc., by the plaintifEs, they could move to have it stricken therefrom although no appeal had been taken.</p> <p>That the orders were inoperative for the further reason that they were made by the court and not by the judge issuing the warrant, as required by the Code of Civil Procedure.</p>

<p>Appeal from an order made at a Special Term discharging Mary Riley from the custody of the superintendent of the house of refuge.</p>

<p>Criminal law — assault in the second degree — 'Penal Code, sec. 218 — Mvamination of a defendant in his own behalf— right to cross-examine him to discredit his testimony — when an error in allowing an improper question is cured by the harpilessness of the answer— Code of Criminal Procedure, sec. 542.</p> <p>The defendant was convicted of an assault m the second dggreo for striking the complaining witness twice upon the head with a pistol, thereby cutting his head and inflicting upon it a wound about an inch and a-half long.</p> <p>Held, that it was properly left to the jury to say whether such an assault with such an instrument was not likely to produce grievous bodily harm within the meaning of subdivisions 3 and 4 of section 218 of the Penal Code.</p> <p>Upon the cross-examination of the defendant he was asked, against the objection and exception of his counsel, whether he had not committed other assaults, upon other persons, at other times. A.s to all but two of these inquiries the defendant answered in the negative, and in answering these two affirmatively he stated facts and circumstances showing that he liad a sufficient excuse for what he did.</p> <p>Held, that the court erred in allowing the questions to be put, but that as the answers were such that the defendant could not have been prejudiced by making them, the error should be disregarded under section 542 of the Code of Criminal Procedure.</p>

<p>Limitations of times within which claims must he enforced — to what existing claims the provisions of chapter 4 of the Code of Givil Procedure apply — application of such provisions in cases where a demand is necessary — Oode of Givil Procedure, sec. 410 — When an application for a mandamus will he denied because of the laches of the applicant.</p> <p>The relator was a member of the police force of the city of New York from October, 1872, to February 10, 1877, his salary being fixed by law at the sum of $1,200 a year. This was paid to him from time to time, with the exception of about $500, which was deducted at various times on account of his absence from duty while he was disabled and sick. On March 8, 1883, he applied for a mandamus to compel the board of police commissioners to pay to him the sums so retained.</p> <p>Held, that the rules prescribed by chapter 4 of the Oode of Civil Procedure, limiting the times within which actions must be brought and special proceedings instituted, applied to the relator’s case.</p> <p>That under section 414 thereof the proceeding should have been instituted by him within the same period of time as that within which he might have enforced his claim by an action, that is, within six years, the time fixed by section 382.</p> <p>That even if it should be held that a demand was necessary to start the running of the statute, yet as the facts were at all times fully and clearly known to the relator the statute began to run from the time the right to make the demand existed. (Code of Civil Procedure, § 410, sub. 1.)</p> <p>That even if the limits prescribed by the Code of Civil Procedure were not applicable to the relator’s application, his long delay was in itself a complete answer thereto.</p> <p>People v. Common Council of Syracuse (52 How., 346) followed.</p>

MotioN to bave the accounts presented to the General Term by a receiver of an insolvent life insurance company, as required by section 4, chapter 378 of 1883, approved. The accounts, as filed by the receiver, had upon them the following indorsement:. “ The within accounts are hereby approved, ■dated,” etc. The court, upon being requested to sign this, refused to do so upon the grounds stated in the following opinion:

Appeal by Charles P. Hartwell and others from an order denying a motion made for the payment of $831.75, for services and disbursements of their attorney and counsel in resisting- certain claims made on behalf of the receiver of the corporation.

<p>Appeal from an order made at a Special Term directing the issue of a peremptory writ of mandamus requiring the defendant to docket a judgment.</p>

<p>Appeal from an order of tbe Special Term approving the undertaking given by the defendant.</p>