Volume 39 — New York Supplement

Action by the city of Buffalo against the Delaware, Lackawanna & Western Railroad Company to compel defendant to remove its warehouses and other structures from a location about 30 feet wide along the margin of Big Buffalo street, between Commercial and Main streets, known as “Central Wharf,” and between Main and Washington streets, being a distance of something less than 1,000 feet, and to have such territory declared a public highway, and to have the piers, wharves, and…

Action by Maud A. Griswold against Meta J. B. Caldwell and others. From an order denying a motion by some of the defendants to open a default, and for leave to answer, said defendants appeal.

Action by Jacob Ringle and others against Francis O’Matthiessen and others. Judgment for plaintiffs. For decision on demurrer to the complaint, see 38 N. Y. Supp. 875.

<p>1. Assignment for Benefit of Creditors—Rights of Assignees.</p> <p>An assignee for benefit of creditors may move to vacate an attacbgient levied on the property assigned.</p> <p>3. Attachment—Affidavit—Jurisdiction of City Court.</p> <p>Under Code Civ. Proc. § 3169, subd. 3, giving the city court of New York jurisdiction to issue an attachment, where it is shown by affidavit that defendant is a nonresident of the city, and has not an office within the city where he regularly transacts business, an affidavit which merely alleges that defendant is a nonresident of the city of New York, without any allegation as to an office in the city, is insufficient.</p>

Proceeding by the Postal Telegraph-Cable Company to acquire by eminent domain the right to place and maintain 12 telegraph poles in front of defendant’s premises. The matter was heard before Messrs. James B. Lockwood,. James.

Action by Bernard F. Martin against David Goldstein. Defendant moves to dismiss for want of jurisdiction over defendant’s person.

Action by Edward J. Patterson, as administrator of the estate of Jennie Patterson Townsend, deceased, against the city of Binghamton, to recover an award of damages for a right of way on the opening of a public street in the city of Binghamton, through the lands of plaintiff and of his intestate. The complaint was dismissed, and plaintiff appeals.

Action by the West End Savings & Loan Association against William Degan and others to foreclose a mortgage.

<p>•Contracts—Interpretation.</p> <p>Plaintiff agreed to rent his house to defendant’s testator for a certain time, and testator agreed to pay the expense that plaintiff should incur in repairing a certain other house owned hy him for the use of his (plaintiff’s) family during such time. After making such agreement, plaintiff ascertained, that the cost of repairing the other house would be about $500, and testator agreed to pay that sum, and also any sum that it might cost in excess of $500. Held, that the meaning of such agreement was that testator would pay the expense of repairing plaintiff’s other house, whether the amount was more or less than $500. ■</p>

Action by the Sackett & Wilhelms Lithographing Company against Frances M. Comstock and others to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendant Com-stock appeals.

<p>Husband and Wife—Action by Wife against Husband’s Paramour.</p> <p>Plaintiff, a married woman, has no cause of action against defendant merely because she (defendant) lives in meretricious relations with plaintiff’s husband, assuming- to bear' his surname, and defendant’s conduct is calculated to prejudice plaintiff’s standing in the community; the action not being founded on any charge of libel or slander, or that defendant has alienated from plaintiff the affections of her husband, and there being no allegation that plaintiff still lives with him, or that her cohabitation with him. was discontinued for any cause attributable to defendant.</p>

<p>Statutes—Necessary Provisions—Adopting Existing Acts.</p> <p>Pen. Code, § 351, as amended by Laws 1895, c. 572, which provides that, where there is an existing law on the same subject, certain of its independent provisions shall not take effect, is not in violation of Const. 1895, art 3, § 17, which provides that “no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of such act, or which shall enact that any existing law or any part thereof shall be applicable, except by inserting it in such act.”</p>

Action by Emil Dieckerhoff and others against Otto Alder and another for money paid by mistake to defendants for goods already paid for. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion to amend the answer, defendants appeal. For decision of the court of common pleas, in which the action was originally brought, rendered on a former appeal, see 33 N. Y. Supp. 698.

<p>1. Office and Officer—Duration of Term.</p> <p>A person employed by the hoard of supervisors of Kings county to have the care and custody of books and records of the county, by virtue of Laws 1892, c. 686, § 26, which authorizes the board of supervisors “to provide for their safe-keeping,” retains his employment and right to compensation until relieved by the officer of the city who, by Laws 1895, c. 954, consolidating the city of Brooklyn and the county of Kings, was made the custodian of such books and records, though, under the act of consolidation, the board of supervisors had ceased to exist.</p> <p>3. Evidence—.Tudiciai, Notice.</p> <p>Judicial notice will be taken of the fact that the public officer who is charged with the duty of caring for public books and records has not the manual custody of them, but acts through clerks and other subordinates.</p> <p>8. Office and Officer—Terms of Appointment</p> <p>A clerk appointed by the board of supervisors of Kings county to be custodian of the records “until such time as the county records are by law directed to be transferred” to the city by Laws 1895, c. 954, consolidating the city of Brooklyn and the county of Kings, limits the term of employment to the time of the actual transfer, and not to the day on which the consolidation between the city and county would take effect. Oullen and Bartlett, JJ., dissenting.</p>

<p>1. Executors and Administrators—Liability por Interest.</p> <p>An executor, on entering on his duties, opened two bank accounts, one bearing interest, and the other an open account, at no time exceeding $500, against which he drew from time to time to pay testator’s debts and expenses of administration. The other account drew interest until the bank notified him that it would no longer pay interest on deposits. Within three months thereafter, and as soon as the law permitted, he filed his accounts, and petitioned for a final settlement and distribution. Held, that he was not liable for interest on the fund pending the final settlement, though it was shown that another bank at the same time was paying interest on monthly balances, where it did not appear that either the contestants or the executor knew of the rule at the time, or that any of the parties interested required him to deposit the fund in any other bank.</p> <p>2. Wills—Bequest at Maturity—Accrued Interest.</p> <p>A bequest of “all mortgages [including notes and other obligations therein described, for which the mortgages are security]” includes interest accrued on the mortgages up to the time of testator’s death.</p> <p>3. Presumption op Payment—Rebuttal.</p> <p>The presumption, if any, that a note of decedent had been paid by the transfer by decedent to the payee of certain certificates of deposit, is rebutted by the fact that testator, in his will, made after the transfer of the certificates, expressly directed payment of the note.</p> <p>4. Gift inter Vivos—What Constitutes.</p> <p>A bill of sale given by a decedent without consideration, and not filed in the town clerk’s office, purporting to transfer property of which decedent was the absolute owner, and the use and possession of which was reserved during his life, does not operate as a gift inter vivas, where there is no proof that the bill of sale was ever delivered, except that it was produced on the trial of the person named therein, or that she knew of its existence, or of decedent’s intention to give her the property, until the subject came up at the trial, and decedent was in absolute and undisputed possession of the property until his death.</p>

Actions by James Keegan and others against John Smith and others and by Dennis McMahon and others against the same defendants.

<p>1. Municipal Corporations—Claims against—Interest. Buffalo City Charter (Laws 1S91, c. 105) § 105, which provides that warrants issued for the cost of repairing sewers should bear interest, does not affect the right of the holder of warrants issued in settlement of a claim for repairing sewers to demand interest from the time that his claim was audited until the warrants were issued.</p> <p>2. Same—Recovery after Payment op Principal. The holder of a claim against a city for sewer repairs does not, by acceptance of principal debt, lose his right to interest up to the time of payment where the common council had passed a resolution directing interest to be paid on such claim from the date of audit to the time the warrants were issued, which practice had been followed in previous cases.</p> <p>3. Interest—Right to—Acceptance op Principal. Where interest is not provided for in a contract obligation under statutory authority so as to be a part of the debt itself, the acceptance of the principal sum due precludes the right afterwards to claim interest thereon.</p>

Action by W. Martin Jones against the Rochester Gas & Electric Company. The jury found a verdict in favor of plaintiff. Defendant moved for a new trial on the minutes. The motion was denied, and defendant appeals. Action commenced on the 17th day of December, 1894.

<p>Action by John Crosby Brown and others against Central National Bank and others.</p>

<p>Action by William C. Chambers against James H. Lancaster and others.</p>

<p>Action by George Coles against Herman Duden.</p>

Judicial settlement of the accounts of Frank Curtiss and Frederick De Billier, as executors of, and trustees under, the last will and testament of Abijah Curtiss, deceased, etc.

<p>Action by Thomas Oorless against the Brooklyn Heights Railroad Company.</p>

<p>Action by Edward Grant against the Brooklyn Heights Railroad Company.</p>

Action by Jacob Hirshfeld, suing in his own behalf, and in behalf of all other creditors of the Madison Square Bank, against Lawrence J. Fitzgerald, F. Cyrus Straat, Rufus T. Peck, and William Fitts, impleaded with John Bopp and others.

<p>In the matter of the petition of Edward P. Kain against Stephen J. Stilwell.</p>

<p>Action by the Lincoln National Bank of the City of New York against Harford B. Kirk and others.</p>

<p>Action by Francis H. Leggett, Albert H. Jones, Lewis Wallace, and John 0. Juhring against Walter Radford.</p>

<p>Action by Catharine Lynch against the Brooklyn City Railroad Company.</p>

<p>Petition of Thomas J. Lynch, an incompetent person.</p>

Action by the people of the state of New York, on the, relation of Samuel B. Lawrence, against John Fallon, warden and keeper of the city prison, and others.

<p>In the matter of the application of William A. Randall against Charles R. Cline, Jr., tojvn clerk of Warwick, Orange county, N. Y.</p>

<p>Action by Lewis R. Stegman, as late sheriff of Kings county, against Henry S. Hollingsworth.</p>

<p>Action by Priscilla Stoddard against Jane D. Brazell.</p>

<p>Action by Alida S. Ulbricht against the New York Recorder Company.</p>

<p>Action by Augustus S. Van Wickle and another against Clara R. Bacon.</p>

<p>In the matter of Benjamin E. Valentine.</p>

<p>Action by Walter Walrath and others against William H. Abbott.</p>

<p>Action by Irene Weber and another against Etta Forgotston.</p>

<p>Action by Clara G. Whitney against W. Wallace Whitney.</p>

<p>Petition of Morris S. Lewis for letters of administration upon the estate of Charles Wolff, deceased.</p>