Volume 39 — New York Supreme Court Reports

<p>Appeal from a judgment in favor of tlie plaintiff, entered upon tbe trial of this action by the court without a jury.</p> <p>This is an action for an alleged conversion by the defendant of seventy-four casks, 48,862 pounds, of sugar of lead, the property of plaintiff’s assignor.</p> <p>It appeared that Messrs. Lockwood & McClintock were employed by one Marcellus Massey, a receiver appointed by tbis court, to sell a quantity of sugar of lead held by liim as sucli receiver. The action in which the receiver was appointed was settled, and the property in the hands of the receiver or its proceeds were transferred by the receiver to the Brooklyn White Lead Company on the 19th of February, 1881.</p> <p>On the 18th day of February, 1881, the seventy-four casks had been sold by Lockwood & McClintock to defendant. This sale was repudiated by the Brooklyn White Lead Company on the ground of the fraud of the defendant, and they brought an action to rescind the sale and recovered a judgment rescinding it on November 7,1881.</p> <p>Thereafter, the plaintiff, as the assignor of the Brooklyn White Lead Company brought an action against William Lockwood and Emory W. McClintock to recover the proceeds of the sale, to the defendant, of the sugar of lead mentioned in the complaint, and recovered judgment therein against said Lockwood & McClintock in the sum of $7,408.48, on June 26, 1882, which judgment is still in full force and effect.</p> <p>It was adjudged iii that action that the said Lockwood & McClin-tock had received from the defendant for the said sugar of lead the’ sum of $7,598.88 as the proceeds of the sale thereof to defendant.</p> <p>The defendant contended that such action against Lockwood and McClintock, and its prosecution to judgment, was the election of a remedy inconsistent with the present action and prevented its prosecution.</p>

<p>Telegraph company — formed to transmit stock quotations and other news — it cannot refuse tofwrnish the news to one wishing to subscribe for it.</p> <p>The complaint alleged that the defendant was a corporation organized and doing business under the laws of this State in respect to telegraph companies; that it maintains and operates lines from the Stock Exchange, in New York, through various portions of that city and of Brooklyn; that it “was organized and is maintained for the purpose of transmitting, and its object is to transmit over the lines so established by it, and through its stock reporting instruments and general news reporting instruments, to all persons who hold, and to all persons, who desire to hold, its said stock and news reporting instruments, certain quotations, news and information, which quotations, news and information are owned and controlled by it for the purpose of being so transmitted.” It then alleged that .the plaintiffs had entered into an agreement by which the defendant had agreed to, and had placed in. their office the said instruments and furnished the said information, the agreement to continue in force until May 1,1882; that shortly before that date the defendant threatened to remove the said instruments, and refused to continue or renew the said agreement, which would result in great loss to the plaintiffs. The plaintiffs prayed for an injunction restraining the removal of the instruments or their disconnection from the defendant’s wires.</p> <p>Held, that a demurrer interposed to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, should be overruled.</p> <p>That the defendant being a public corporation should make no distinction in. respect to the persons who wished to partake of the privileges which it was. created to furnish.</p> <p>Breese v. The United States Telegraph Oompany (48 N. Y., 132) distinguished.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p> <p>The defendant is the owner of a steam laundry in Brooklyn. The collars and cuffs are ironed by machinery propelled by steam power. The defendant employs a number of girls to work the machines and prepare the goods for ironing. About the 1st day of April, 1882, the plaintiff, who was then a little over fourteen years of age, was employed by the defendant’s sister, who was acting as defendant’s forewoman, to “ bunch ” collars and cuffs preparatory to their being'washed. She worked at this for about two months at two dollars a week. About the 1st day of J une, 1882, defendant’s forewoman, Miss Taaffe, set the plaintiff to work on a machine known as “ The Troy Collar and Cuff Ironer.” This machine is composed of four rollers, two in front and two in the rear, all worked by cog-wheels at the ends. The bottom roller in front and the top roller in the rear are hollow in the center to admit of a row of gas lights running through them by which they are heated to 250 or 300 degrees of heat, sufficient to iron collars and cuffs. The other two rollers are much larger. They are covered with canvas or muslin. The rollers are pressed together by weights suspended at the bottom of the machine. It requires two operators to work the machine, one in front to put the collars and cuffs in, the other in the rear to receive them. Plaintiff worked at the front. There was no “ shipper ” or “ lever ” on the machine with which to stop or start it on the day on which plaintiff was injured. It had to be stopped by throwing off a belt with the hand. The plaintiff was directed by defendant’s forewoman to feed the machine by putting the ends of the collars and cuffs in between the rollers. The rollers revolved at a rapid rate and drew the goods in as soon as caught.</p> <p>Evidence was given tending to show that on July 26,1882, while plaintiff was working the machine a collar with the end turned down or lapped had just got caught in the rollers before she discovered the lap. She attempted to take the laj) out before it got through. Her finger became entangled in the buttonhole and her hand was quickly drawn in between the heated rollers and was there crushed and burned. This' action was brought to recover damages for the injuries so sustained.</p>

<p>Appeal from a decree of the surrogate of Orange county, upon the final accounting by the executors of John A. L’ilommedieu.</p>

Appeal by the plaintiff from an order made at a Special Term, vacating an order previously made requiring the defendant George Jones to. appear and submit to an examination as to certain matters. The action is for libel. The defendant is sued as treasurer of a joint stock association, under the statute.

This action was brought to foreclose a mechanic’s lien created by a notice filed as provided by chapter 478 of 1862. The defendant White, who owned the land, which was situated in the town of Gravesend, Kings county, contracted with the plaintiff Prior to erect a house for a specified sum. Liens against the property were filed by the plaintiff, and the other defendants who had been employed by him.

<p>Appeal from an order made at a Special Term denying a motion made by tbe defendant to have a sale under an execution, issued upon a judgment recovered in this action, and the deeds given in pursuance thereof, set aside as irregular.</p> <p>The action was begun on the 7th day of May, 1878, by the service of a summons on Peter Riley, by publication, and was brought to recover the sum of $131, a balance alleged to be due from the defendant to plaintiff for goods sold and delivered.</p> <p>An order of attachment was issued on August 5, 1878,- under which the defendant’s real estate was attached.</p> <p>Tlfe defendant was not personally served with process, and did not appear herein. Judgment was taken against him by default August 20, 1878, for $226.37. On the same day an execution was issued upon the judgment to the sheriff of Queens county, which commanded him to satisfy the" judgment out of the personal property attached in the action and if that was insufficient, then to satisfy it out of the real property theretofore attached. The premises attached were levied upon and sold under the said execution by the sheriff, in the latter part of October, in the year 1878, and bid off on the day of sale by Owen Riley, for $500, and after the time to redeem had expired they were conveyed by the said Riley to Whittaker and Willetts, who are really the respondents on this motion.</p> <p>Peter Riley, the defendant, did not return home until about October 1, 1880. He then had the default opened and the judgment set, aside, and defended the said action on its merits and obtained a verdict from a jury in 1882.</p> <p>Thereafter he made this motion to have the execution and sale vacated and set aside as irregular.</p>

The action was brought by the plaintiff to recover for the past and prospective loss of services of his son, who had been injured by the defendant’s negligence, and for thé expenses of medical attendance and nursing occasioned thereby.

<p>Equitable set-off— when it will be allowed — when the ti'ustees of a foreign insurance company foreclosing a mortgage will be compelled to set off the amount due from the company on a policy of insurance to the mortgagor.</p> <p>One Gunther having executed three separate mortgages for $10,000 each on real estate owned by him to Hollishe & Sackett, trustees, procured a policy of insurance against fire for $21,300 from the Liverpool and London and Globe Insurance Company, the loss being made payable to the mortgagees. The policy provided that the company should have the right to demand an assignment of the mortgage, at its option, whenever it claimed that it was not liable to the owner upon the policy at the time of the loss, and that all securities held as collateral to the mortgage should be assigned with it. Gunther at the same time pi'ocured a' policy for $8,500 from the same company upon his furniture, made payable to himself. In August, 1879, the property was burned and the loss was fixed upon one policy at $20,078.94, and upon the other at $8,500. In December following the plaintiffs, acting as the trustees of the fund required to be kept in this State by foreign insurance companies by chapter 888 of 1871, demanded and received an assignment of the mortgages. In November, 1881, Gunther brought an action upon the policies and recovered, on March 6, 1882, a judgment for $30,745.27, from which the company appealed to the Supreme Court of the United States. In December, 1883, this action was brought to foreclose the mortgages. ’</p> <p>Held, that the defendant Gunther was entitled to have the amount due upon the two policies of insurance set off against the amount due upon the mortgages.</p>

<p>Negligence — liability of a city to one injured by falling on a slippery sidewalk — notice to the city of the existence of the defect must be shown.</p> <p>The plaintiff, while passing along a street in the village of Newburgh at about eight o’clock in the evening of Sunday, January ninth, slipped upon some ice and fell and broke his arm. Four or five inches of snow had fallen on the preceding Thursday, after which it had rained and had then frozen hard. At the time of the accident a light snow was fading which covered the ice. There was no defect in the sidewalk and no proof that the city had notice of the existence of the ice.</p> <p>In an action by the plaintiff to recover damages for the injuries so sustained: Held, that the plaintiff was properly nonsuited, as there was no proof of any negligence upon the part of the defendant. (Pratt, J., dissenting.)</p>

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

The defendant, by a written contract dated March 17,1883, agreed to sell to the plaintiff the premises No. 91 Maiden lane, New York, the plaintiff paying down $500 at the time of signing the contract.

<p>Compensation for services rendered — when a promise to pay for the services rendered to a company by one of its officers will not be implied.</p> <p>The plaintiff was elected and acted as the secretary of the defendant in 1870 and for five successive years thereafter. During all this time he was employed as a clerk by the defendant, and was not at any time a stockholder or director of the company. At the time of his election the by-laws did not provide any salary for the secretary, nor was any such provision subsequently made, although the plaintiff spoke once to the president and once to a director of the company about it.</p> <p>In an action by the plaintiff to recover upon a quantum meruit the value of the services so rendered by him as secretary:</p> <p>Meld, that he was not entitled to recover, as no express or implied promise on the part of the company to pay him for his services was shown.</p>

<p>Mutual mistake of fact — when the party aggrieved will he relieved in equity.</p> <p>December 15, 1875, the defendant loaned to Mrs. Roper $2,000, and received from ber four bonds for $500 each, secured by four mortgages given by her, one upon each of four houses then owned by her, upon each of which a mortgage for $8,000 already existed. February 2,1877, the plaintiff, who had purchased one of the said houses, known as No. 166-J-, subject to the two mortgages, paid to the defendant the sum of $500, the said sum being paid and accepted with the intention of paying and discharging the $500 mortgage held by the defendant upon the plaintiff’s house. By a mutual mistake the bond and mortgage held by the defendant against the adjoining house, No. 168, which was still owned by Mrs. Roper, and a satisfaction piece thereof were delivered to the plaintiff, and the said satisfaction piece was by her duly filed in the county clerk’s office. Thereafter Mrs. Roper gave a new mortgage for $500 upon the said house, No. 168, and subsequently the prior $3,000 mortgage thereon was foreclosed, in an action to which the defendant was a party defendant, and a surplus of $155 19 realized upon the sale had thereon.</p> <p>Tins action was brought by the plaintiff, upon discovering the mistake which had been made, to have the mortgage existing upon her house, No. 166J, declared satisfied and discharged.</p> <p>Held, that she was entitled to a judgment to that effect.</p> <p>That the bond and mortgage were in fact satisfied and discharged by the payment made by her, and that her rights were in no way prejudiced or affected by the defendant’s mistake in delivering to her the wrong papers.</p>

The action was brought to enforce the charge and lien of the ■debts of Isaac B. Soper, deceased, against the real estate of which he died seized. The testator died on January 24, 1876, and his will was proved and letters testamentary thereon issued to the defendant Phebe, his widow, in the February following. The will, after its .formal beginning, proceeded as follows, viz.: “ First.

Tbe action was brought to recover damages occasioned to oysters belonging to tbe plaintiff by dirt and other refuse dumped upon thém by the defendants. Tbe plaintiff claimed that be bad for more than thirty years been in tbe habit of planting and raising oysters at tbe place referred to, and that tbe person from whom be bad purchased tbe bed bad planted them there for many years prior thereto.

This action was brought by the plaintiff to compel the payment of the taxes and assessments legally due upon certain property in Kings county, and to compel the defendants to put and keep the said premises in repair.

<p>Appeal from an order made at a Special Term confirming the report of a referee, and from the judgment in favor of the defendant entered thereon.</p>

The court at General Term said: “ There is some doubt whether this proceeding was appealable to the Oounty Court. The commissioners claimed that there was an encroachment made or continued by defendant upon a highway in the town of Jamaica, and a failure •to remove the same after order and notice. By the provision of 1 Revised Statutes (522, § 105) the commissioners applied to a justice of the peace for a precept to summon a jury.

<p>Place of trial — power of the court to change it— Code of Oivil Procedv/re, secs. 982, 98S, 984 and 987.</p> <p>The place of trial of an action brought by a resident of this State against a foreign corporation may be changed by the court from the county where the plaintiff resides, and in which the venue was laid, to another county, when such change will promote the convenience of witnesses and the ends of justice.</p> <p>The peremptory language used in sections 982, 983 and 984 of the Code of Civil Procedure, is qualified and controlled by the provisions of section 987 conferring upon the court power to change the place of trial- for the reasons therein specified.</p>

<p>Will — eonsbi'uetion of a devise of a remainder — when words of surmmrshyp will Ite , held to refer to the death of the testator and not of the tenant for life — equitable ■ conversion.</p> <p>A testatrix devised two pieces of real estate to her executor, to collect and receive - - the income thereof, or in his discretion to sell and convey the same and invest the proceeds thereof, and out of the income to pay a certain sum for the - support of the testatrix’s mother, and so much as might be necessary for the support and education of her youngest son James; any balance to be paid to her three other children, Thomas, John and Mary. Upon the death of the mother, during the minority of James, the income of a part of the real estate, or its - proceeds, was to he paid to James, and upon his coming of age the said real estate,-or its proceeds, was given to him. The residuary clause was as follows: “And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children, John, Thomas and Maiy, the survivor and survivors of them, share and share alike.”</p> <p>Held, that the children named in the residuary clause of the will [took vested estates in remainder immediately upon the death of the testatrix, which would not he divested by their subsequent death during the lifetime of the mother, or the minority of James, and that the'word “then,” as used in the residuary clause, indicated only the time when the estate was to be enjoyed by them.</p> <p>That it was the intention of the testatrix that the real estate should be converted into personal property, and that the proceeds of such of it as had been sold should be treated as,personal property in distributing it among the children. ■ and their representatives.</p>

<p>Receiver — when charged with interest upon trust funds used in his own business — orders directing the payment of counsel fees — when they may be assailed upon cm accounting by the receiver — how fcm' the amount of his commissions will be regulated by his management of the trust funds.</p> <p>Where, upon the accounting by the receiver of an insolvent insurance company, it appears that he has deposited a portion of the trust funds in his own private bank account, the contestants may prove what amounts he has from time to-time drawn out upon his individual checks for his own purposes, in order that he may be charged with interest upon any of the trust funds so used.</p> <p>Upon the accounting of a receiver objection was made to the allowance of three claims, of $5,000 each, paid by the receiver to his counsel, who was also his partner, in pursuance of orders of the Special Term. The first order was. obtained upon the petition of the receiver, the motion being made by the counsel. The other two were obtained upon the motion of the counsel and upon petitions made and verified by him.</p> <p>Held, that as no appeal had been taken from the first order it could not be-questioned upon the accounting.</p> <p>That the other two orders could, under the circumstances of the case, be collaterally assailed, and that it rested upon the receiver to establish by other satisfactory evidence that the payments made thereunder were justified by the services actually rendered to him by the counsel.</p> <p>In determining the amount of the commissions to be allowed to a receiver, the-manner in which he has managed the trust funds is to be considered.</p>

<p>Appeal from an order made at a Special Term, denying tbe prayer of tbe petition, asking for tbe appointment of commissioners, to ascertain tbe compensation to be paid to tbe owners and other-persons for property in tbe city of New York.</p>

<p>CONTROVERSY submitted upon an agreed statement of facts, under' section 1219 of the Code of Civil Procedure.</p>

<p>Appeal from an order made at a Special Term denying tbe relator’s motion for a peremptory writ of mandamus.</p>

<p>Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of a jury directed by the court at circuit.</p>

Appeal by the defendant from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action is brought to recover the balance due upon a deposit made by the plaintiff with the defendant.

<p>Police commissioners of New York city — power of, to try, and remove members of the force for legal offenses —1882, chap. 410, sec. 272.</p> <p>Under section 272 of chapter 410 of 1882, providing for the trial and removal of members of the police force of New York by the board of police commissioners, the board has power, in the form prescribed by the act, to examine into all offenses, even though they constitute legal offenses committed by policemen, for the purpose of purifying or disciplining the force, without restriction or limitation, based upon the criminal character or other heniousness of the offense. (Per Davis, P. J., and Daniels, J.; Beady, J. concurring m result.)</p> <p>People ex ret. Siebert v. The Board of Police Commissioners (20 Hun, 333) criticised and not followed.</p>

that the property replevied be restored to the defendant. The plaintiff sought to recover property seized by the defendant, a marshal of the city of New York, under a warrant issued for the-collection of a tax upon personal property, due from the plaintiff.

By the complaint in this action it appeared that in the month of December, 1878, one Chauncey L. Cooke, the grandfather of the plaintiff, died at the city of New York, leaving a last will and testament, dated December 18, 1877, which was afterwards admitted to • probate. ' It further appeared thereby that the residuary estate which passed to the defendant under this will was of the value of about $150,000, and yielded an income of about ■ $7,500 annually; that the plaintiff…

<p>Controversy submitted upon an agreed statement of facts, under section 1279 of the Oode of Civil Procedure.</p> <p>On or about the 12th day of January, 1883, the plaintiff, as sheriff, received a warrant of attachment in an action entitled “ John H. Inman and others against the Fourth National Bank of St. Louis,” then pending in this court, by which he was required to attach (in the usual form) property of the defendant therein named to the amount of $5,000. He executed the said warrant of attachment by delivering a certified copy thereof to this defendant, at the same time demanding a certificate of the amount in which this defendant was indebted to the defendant named in the said warrant; and thereupon the said sheriff received from this defendant a certificate stating that it was indebted to the defendant therein named in the sum of $5,000.. The said action of “ Inman et al. against The Fourth National Bank ” is still pending and undetermined. The plaintiff herein claims that he is entitled to have and receive from the defendant, by virtue of the said warrant, the said sum of $5,000, which this defendant admits to be due and owing.from it to the said Fourth National Bank. And the defendant claims that until the termination of the action in which said warrant was issued, the sheriff is entitled to nothing more than a certificate, which has been delivered as aforesaid. The sole question submitted to the court in. this'case is whether the sheriff, is entitled to require the Chatham National Bank to pay over to him the amount of its indebtedness to the defendant named in said warrant of attachment, before the action in which said warrant was issued shall have been determined.</p>

<p>Appeal from a judgment entered, upon an order sustaining a demurrer interposed to the complaint.</p>

<p>Motion by the plaintiff for leave to enter a judgment upon a verdict in bis favor, directed by the court subject to the opinion of the General Term.</p> <p>The plaintiff sought to have a portion of an assessment imposed upon his property, which had already been paid by his agent, set aside and declared invalid, and to recover the over-payment so made by him. The facts in the case, which were not disputed, were substantially as follows:</p> <p>Tbe plaintiff is, and at the dates hereinafter mentioned, was the owner of lands fronting on Eleventh avenue, between Fifty-second and Fifty-ninth streets, in the city of New-York. On September 12, 1875, the said lands were assessed for the paving of Eleventh avenue in the sum of $3,651,97, which was paid by the plaintiff’s agent on December 9, 1875. The total cost of the street pavement was $21,404.84, all of which sum was assessed upon the property on the line of the work.</p> <p>Prior to the pavement of the avenue the Hudson River Railroad Company had laid a track of rails thereon pursuant to permission granted to said company by an ordinance adopted May 6, 1847.</p> <p>In such ordinance it was provided, as a condition of the franchise, that the Hudson River Railroad Company should “grade, regulate, pave, and keep in repair a space twenty-five feet in width in and about the tracks in all the avenues and streets through which said tracks should be laid, whenever the common council shall deem the interest of the city to require such pavement to be done.” The width of the avenue from curb to curb is sixty feet. The Hudson River Railroad Company had paved no part of the street, and no part of the expenses had been assessed upon the company.</p> <p>The plaintiff’s agent was ignorant of the provisions of the ordinance in respect to paving by the railroad company, and of the failure of the city to charge the railroad with its proportion of the expense when he made the payment.</p>

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

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

Appleby from his purchase of certain premises sold under a judgment of foreclosure, and directing the return to him of the money paid by him under the terms of the sale*

<p>Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to counter-claims set up in an answer served by three of the defendants herein.</p>

<p>Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the plaintiffs’• complaint.</p>

<p>Appeal from a judgment of the Court of General Sessions convicting the defendant of the crime of forgery in the second degree.</p>

Weit of error to review tbe judgment of the Court of General Sessions of the county of New York, by which the plaintiff in error was convicted of the crime of murder in the second degree and sentenced to imprisonment in the State prison for life.

The defendant’s testatrix Esther L. Tiers left her surviving six children, her only heirs-at-law, viz., Edward ~W., Francis H., Agnes L., Joseph L., Cornelius and Alexander, all of whom were of full age. The plaintiff, the assignee of Joseph L-, brought this action to have the will set aside. The portion of the will alleged to be invalid was contained in the third and fourth clauses.

<p>Cause of action — where it arises— Code of Civil Procedure, section 1780, subdivision 3 — when the court has jurisdiction of an action between two foreign corporations.</p> <p>One Muirliead, as trustee under the will of Gr. H. Dunscomb, bad caused 295 shares of the capital stock of the defendant, which came into his hands as trustee, to be transferred upon the books of the defendant at its transfer agency in the city of Dew York. The trustee died insolvent, whereupon the plaintiff, a foreign corporation, was appointed his successor in proceedings instituted for that purpose in the High Court of Chancery of the Province of Canada where the will had been proved. This action was brought to recover the said shares of stock, with the dividends that had been declared thereon, upon the ground that Muirhead had no power to cause such transfer to be made, and that the defendant and the transfer agent knew that he had no authority to make the transfer at the time of his making it.</p> <p>Held, that although both the plaintiff and defendant were foreign corporations, the court had jurisdiction over the action, under subdivision 3 of section 1780 of the Code of Civil Procedure, as the cause thereof arose in this State.</p> <p>Hibernia National Bank v. La Combe (81 N. Y., 367) followed.</p>

the punishment of the defendant for the non-payment of alimony recovered against him in an action for a limited divorce.

<p>Appeal from an order made at a Special Term sustaining a demurrer to the complaint.</p>

Appeal by Samuel Jones from an order made at a Special Term,denying a motion made in bis behalf to have a claim admitted and paid, so far as that could be done, by funds in the hands of the receiver.

Appeal by the trustee from so much of the decree of the surrogate as charged him with interest and denied him commissions on the settlement of his accounts.

<p>Injunction — when it will he granted to restrain the prosecution of actions brought in another State.</p> <p>The defendant, a resident of the State of New York, commenced two actions against an express company in the Supreme Court of the District of Columbia, to recover the value of two packages, one of which was to have been delivered in Philadelphia and the other in Chicago. By the terms of the receipts the liability of the company upon the first was .fixed at fifty dollars, no specific valuation being placed upon it by tlie sender ; its liability upon the second was fixed at $300, it having been valued at that amount. In the actions brought in the District of Columbia $4,000 was claimed in one, and $7,000 in the other action; the packages being alleged to have been worth $3,000 and $3,695.91, respectively. The actions were brought in the District of Columbia in order to avoid the decision of the Court of Appeals of this State, sustaining the validity of the provisions in the receipts limiting the company’s liability, and to take advantage of a decision to the contrary made by the Supreme ('ourt of the District of Columbia. Before the commencement of this action the company tendered and offered to pay the amounts for which it was liable by the terms of the receipts.</p> <p>Held, that the company could maintain an action in this State to restrain the defendant from prosecuting the actions brought in the District of Columbia.</p>

MotioN to dismiss an appeal for a failure to serve printed papers, as that has been required by the general rules of this court. In the spring of 1883 an appeal was taken in this matter from an order confirming the report of arbitrators and from the judgment entered thereon. At the October General Term a motion was made to dismiss the appeal upon the ground that no papers had been served as required by the general rules.

This is an action in the nature of a creditor’s bill, brought by the plaintiff as a judgment creditor of James Murray and James Lawless, to compel the application, to the payment of the plaintiff’s judgment, of the share of the said James Murray, in certain rents reserved in and by a lease of lands executed by said James Murray and John Murray, to the plaintiff and his son Richard Riley.

<p>Decision of an issue of fact by a surrogate — lie must file findings of fact and conclusions of law — Code of Civil Procedure, sec. 2545 — what papers must be presented to the General Term on an appeal from his decision.</p> <p>In order that the decree of a surrogate, refusing to admit to probate an instrument purporting to he a last will and testament, may he reviewed at the General Term, a decision in writing, stating separately the findings of fact and the conclusions of law, must be filed by the surrogate in his office as required by section 2545 of the Code of Civil Procedure, and be included with the papers to be presented, on the appeal, to the General Term.</p>

Cross-appeals from an order of the Oneida Special Term modifying, and confirming as modified, the report of a referee appointed to ascertain the amount of damages sustained by the defendants by reason of the temporary injunction order granted herein.

<p>Attachment — it cannot issue in an action brought to enforce a statutory liability— Code of Oiml Procedure, secs. 8247, 635.</p> <p>An action brought, under section 3247 of the Code of Civil Procedure, to .recover the costs of a former action which was prosecuted by the present defendant in the name of a third person, for the defendant’s benefit, is not an action upon a contract “express or implied,” within the meaning of section 635 of ■ the said Code providing for the cases in which an attachment may issue.</p>

Motion by defendant for new trial, on exceptions taken at the Ontario Circuit and ordered to be heard at the General Term in the first instance.

<p>Appeal from a judgment dismissing the complaint, entered upon a decision of tbe court upon a trial at the Cattaraugus Circuit, without a jury.</p>

<p>Fraudulent assignment of personal property — a creditor cannot set it aside, under co-judgment recovered after a general assignment has been made.</p> <p>On or about June 1, 1878, the defendant Calcina assigned to her children certain policies of insurance upon the life of her husband, which had been taken out by him and thereafter assigned to her. In July, 1878, Calcina made a general assignment for the benefit of her creditors. She then was and ever since has been insolvent. The plaintiff having recovered a judgment against her which was docketed January 23, 1880, and having issued an execution thereon which was returned unsatisfied, brought this action against the wife and her children to have the assignment of the policies set aside as fraudulent and void.</p> <p>Held, that the action could not be maintained.</p> <p>That if the assignment to the children was set aside as fraudulent and void the general assignment would still be an obstacle to the enforcement of the plaintiff’s claim.</p> <p>Spring v. Short (90 N. Y., 588) followed ; Leona/rd v. Clinton (26 Hun, 288) not followed.</p> <p>That if the assignment to the children was-void the general assignee might maintain an action to set it aside.</p> <p>That in any event the general assignee should have been made a party defendant.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Oneida Circuit, and from an order denying a motion for a new trial.</p>

<p>Attachment — the affidavit must show a right to recover actual, as distinguished from rwmincd damages — motion papers need not specify defects which relaU to the merits — what objection not taken below cannot be raised on appeal — right of one partner to have an attachment against the firm property vacated.</p> <p>An affidavit upon which a warrant of attachment was issued contained the usual formal allegations, and stated as the cause of action that the defendants were copartners and commission merchants in the city of Chicago ; that on or about May 12, 1883, they purchased for the plaintiff 2o0 barrels of pork at seventeen dollars and ninety-two and one-half cents per barrel at a commission of two and one-half cents per barrel for purchasing, which was paid by the plaintiff; that the defendants were to sell the same, if requested so to do by the plaintiff, at any time during the year 1883, and not otherwise; that on or about June 18, 1883, the' defendants, without the knowledge, consent or request of the plaintiff, sold said pork at the price of fifteen dollars twenty-seven and one-half cents per barrel, and reported to plaintiff that it had been sold and delivered to other parties. It then stated that it was sold for less than it cost and claimed to recover the difference.</p> <p>Held, that the attachment was properly vacated as the affidavit failed to show a right to recover more than nominal damages.</p> <p>A bare statement in the affidavit of the amount claimed is not enough, the facts showing the right to recover must be set forth.</p> <p>It is not the intent of the statute to allow the property of a defendant to be attached upon a claim for nominal damages only.</p> <p>It was claimed on the appeal that the particulars in which the attachment papers ■were defective should have been specified in the notice of motion to vacate it, and that the moving papers should have been entitled as to the defendant, “ George E. Nichols, impleaded, etc.,” instead of " George E. Nichols.”</p> <p>Held, that as Ihe first defect objected to related to the merits, and was not a mere irregularity, it was not necessary to specify it in the notice of the motion to vacate the attachment.</p> <p>'That a defect in the title of the action cannot be taken advantage of on appeal if an objection thereto was not taken below.</p> <p>Where an attachment is issued in an action against partners, either defendant may move, alone, to have the attachment wholly vacated in so far as it affects firm property.</p>

<p>f\hen a husband may be said to have absented himself from his wife — when a second marriage by the wife is lawful — 2 B. B., 139, see. 6 —what evidence is admissible to show intention on the part of the husband to absent himself. ' ■</p> <p>The words “ absented himself,” in section 6_of 2 Revised Statute, 139, providing’ that the marriage of any person whose husband shall have absented himself for the space of five successive years, shall only be void from the time that its nullity shall be pronounced by a court of competent jurisdiction, means a withdrawal of the husband from his wife, his relatives and the ordinary and usual opportunities of identification — such a withdrawal from his wife and family as would, after the lapse of five successive years, lead naturally to the inference that death had ensued.</p> <p>The plaintiff and one Firth intermarried at Deer River in 1835. They then lived for three or four years in Troy and afterwards in Syracuse, where they were finally turned out of their house for. non-payment of rent. Firth having failed to provide for his wife, she then left him, and provided for herself and two children, living first at a boarding-house in Syracuse, and afterwards with relatives at' Bameíia, Deer Greek and Gouverneur, at which latter place she engaged in the millinery business.</p> <p>Firth enlisted in 1861 and served about eighteen months ; he visited his wife,when on a furlough, and stayed with her about four weeks, and again in the spring of 1863 or 1864, when he left the army; when he left the army he wanted his wife to come and live with him in Syracuse; she at first consented, and then refused by the advice of her friends; she did not see him from that time until after she had married one Jones in 1875. Firth sent his wife money on two occasions, once before and the second time just after he left the army.</p> <p>After his wife refused to live with him, Firth went to Pithole, in the oil regions, stayed there about eighteen months, and then returned to Syracuse, where he worked a while, and in 1865 went'to Cardiff, a small place twelve miles from Syracuse, where lie lived till after his wife married Jones. He worked in different families, and finally took a housekeeper, with whom he cohabited and, it was said, intermarried.</p> <p>Held, that Firth had absented himself from his wife within the meaning of the statute.</p> <p>Upon the trial of the action the plaintiff offered to show that a marriage ceremony had been performed between Firth and his housekeeper.</p> <p>Held, that the evidence should have been received, as it bore directly upon the question whether his-change of residence from Syracuse to Cardiff was made with the intention of absenting himself from his family.</p>

<p>Appeal from a judgment in favor of the defendants, entered on a decision rendered at the Cattaraugus Circuit on a trial by the court without a jury.</p>

<p>Appeal from an order of the Cattaraugus Special Term denying a motion for a retaxation of costs.</p>

<p>The second report of raik’oad commissioners — may be set aside for fraud'or the misconduct of the commissioners —1850, chap. 140, sec. 18- — what improper acts on the part of the commissioners will require the report to be set aside.</p> <p>The provision contained in section 18 of chapter 140 of 1850, to the effect that the second report of commissioners appointed to appraise the damages to he paid for land taken for railroad purposes shall be final and conclusive, does not prevent the court from inquiring into the fairness' and regularity of the proceedings before the commissioners, and from setting aside their report for fraud or misconduct.</p> <p>The second report of commissioners was set aside in this case, because of their improper conduct in going upon the lands tobe taken, in company with the landowner and his attorney, and there examining a map produced by the former and listening to his explanation thereof, in the absence of the agent of the company, and its attorney, who were then, to the knowledge of the commissioners, on their way to meet the commissioners and view the premises. It appeared that one of the commissioners in this case rode from a’village to the farm to be viewed,with, and in a carriage provided by, tbe landowner; that one of them then took supper at the latter’s house and was sent home in a carriage furnished by him, and that another accepted from the landowner a sum of money for his services and expenses, in excess of the amount allowed by statute, and which was understood to be so at the time.</p> <p>Reid, that such conduct was improper and required the report to be set aside.</p>

An action was commenced in a Justice’s Court in which the defendants interposed a plea of title. This action was then commenced in the Supreme Court. Upon a reference of the issues, a judgment, for twelve cents was directed in favor of the plaintiff. Costs were taxed in favor of the plaintiff.

Ceetioeaei to review tbe decision of referees appointed by the connty judge of Genesee county to hear and determine the appeal brought by the relator from the determination of the trustees of the village of Batavia, as commissioners of highways, laying out a private road across lands of the relator for the use and benefit of Patrick Burke.

This action, which was brought to secure a partition of land, involved the construction of the will of Roswell G. Bennett, deceased.

The action was brought upon a policy of life insurance issued by the defendant in January, 1870, upon the life of Amps S. Ferguson, a brother of the plaintiff. The plaintiff, at the time the policy of insurance was issued, was with John W. Bridenbecker, a joint-indorser for his brother Amos for about $6,000.

<p>Action against a joint-stock association — when its corporate character is sufficiently prosed — an action for libel will lie against it.</p> <p>In this action, brought to recover damages for a libel, the complaint alleged that the defendant “is a joint-stock company or association duly formed, organized ■and acting under and by virtue of the laws of this State.” Upon the trial the defendant admitted, for the purposes of the trial, that “ the Courier Company is a joint-stock association, as alleged in the complaint, and that the defendant was its president at the time of the commencement of this action.” Subsequently the defendant moved for a nonsuit upon the ground that the action was not of such a nature that it could be maintained against a joint-stock association in the name of its president,, and because there was no proof that the company consisted of seven or more shareholders or associates.</p> <p>Meld, that the motion was property denied.</p> <p>An action for libel will lie againt a joint-stock association.</p>

Ellis temporary administrator of the goods, •etc., of Harriet Chase, made September 3, 1883. In June, 1883, Harriet Chase, a resident of Antwerp, Jefferson ■county, died, leaving James Chase her only child and heir-at-law, an infant aged about fourteen years.

<p>Appeal from a judgment, in Onondaga county, in favor of the plaintiff for $14,953.84, entered on the report of a referee, and also from an order granting an extra allowance.</p>

<p>Appeal from a judgment, entered in Chautauqua county, upon a nonsuit granted at the circuit.</p> <p>The action was brought by an assignee of one Jackson, who had sustained a loss'by fire, which was covered by a policy issued by the defendant. The nonsuit was put upon the ground “ that there was not furnished any proof of loss, and that there was no waiver, and by the terms of the policy the agents of the company' are not permitted to make any waiver unless indorsed on the policy.” The property burned consisted of a stock of goods worth $1,000 or more.</p> <p>The policy contained the following clause, viz.: “ The use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.”</p> <p>The ninth clause is the one contained in all policies, that in case of loss or damage, policyholders shall immediately give notice of said loss, and within thirty days render a particular account thereof, signed and sworn to.</p> <p>Proof was given that one McCurdy was the agent and adjuster of the defendant, and that he had acted in that capacity in the settlement of a prior loss sustained by Jackson on the insured property, and that he called upon Jackson soon after the fire, which occurred the 29th of September, 1879, and stated that “ he had authority to settle with him himself, and that they could arrange it before morning; that he had come to adjust the loss; that before he had nothing to do with paying any money, but in this instance he was to settle the loss.” Bills Avere obtained and figures made of purchases of the goods insured so far as obtainable. McCurdy offered $800 to settle the loss, and Jackson declined it and wanted $1,000. The assured told the agent “ that he did not do as he did before; that before he went before a notary public and made oath to it.” To this the agent replied, “ in this case it was not necessary, he was here to adjust and pay this loss.”</p> <p>The assured says McCurdy asked him “ if I would be willing to swear to the paper which he had drawn up, and I told him I would. I asked him at that time why I did not do as I did before, go before a notary public; he said it was not necessary, as before he had nothing to do with paying the loss.” As Ford, a witness, puts it, “ Jackson asked McCurdy, or told him that before he had to swear to his proofs of loss, and McCurdy said * * * that it was not necessary for him to swear to it now; and afterwards McCurdy asked Jackson if he would be willing to swear to this, and he told him he would be willing to swear to the inventory as it was taken then.” The negotiations for adjustment and settlement were about ten days after the fire. Horton, the local agent, was at the fire and thus the company had immediate notice, of it.</p>

Appeal- from an interlocutory judgment of the Onondaga Special Term, overruling a demurrer to the complaint. Two grounds'of demurrer were stated, one that the complaint does not contain facts sufficient to constitute a cause of action, the other that two causes ■of action are improperly united, with a specification of the nature •of each of the causes of action as required by section 490 of the Code of Civil Procedure.

<p>Judgment against a receiver — liability of one purchasing the property from the recemer subject to all his liabilities — when the creditor may enforce his claim against the property in the hands of the purchaser.</p> <p>In this action, brought to recover the damages occasioned by the negligent killing of the plaintiff’s intestate in December, 1876, while crossing the defendant’s road, which was then operated by one Jewett as a receiver, the plaintiff recovered a judgment in April, 1879. for $5,000, which was on appeal affirmed by the General Term and the Court of Appeals. The final judgment of affirmance was entered in February, 1882.</p> <p>In April, 1878, the railroad property was sold under the foreclosure of a mortgage and conveyed to Morgan and others, as trustees, subject to all lawful indebtedness of said Hugh J. Jewett as such receiver, made or incurred by him during his said receivership, which indebtedness was thereby declared to be a lien upon said premises prior to said mortgages, and the said grantees, in and by the terms of said deed, assumed the indebtedness of said receiver. Thereafter 'the property was conveyed by the said purchasers to the defendant, a company incorporated under special acts of the legislature, by a deed making the conveyance subject to the said debts and liabilities, and the defendant executed a covenant to fulfill, perform and assume the same. In December, 1879, the receiver obtained an order discharging him from his trust.</p> <p>Meld, that the plaintiff could maintain an action against the defendant to recover the amount of her judgment, or to have the same declared a lien upon the property so sold and conveyed to it, and satisfied by a sale thereof.</p>

The action was brought to set aside a judgment entered in Oswego county October 25, 1875, in favor of (filbert E. Parsons against his father Elijah Parsons, now deceased, for $2,060 damages and $16.69 costs. The judgment was entered October 25,1875.

The order states, viz.: “ It appearing from the judgment in this •action that the question whether the plaintiff was entitled to the injunction has not been decided, it is ordered that this motion be •and the same is hereby denied.” The plaintiff brought the action to reform a lease of ahotel made the 8th of June, 1881.

The complaint contained one count upon an indorsement of a promissory note for $l,-500, and one for money loaned amounting to some .$9,700. The trial was had before a referee, who reported in favor of the plaintiff’s testator in his lifetime, upon both counts. The defendants took an appeal to the General Term where an opinion was delivered, pointing out error in the trial of the second cause of action, and holding that no error was committed as to the first cause of action.

- The action was brought again'st the defendant, as the sheriff of Seneca county, to recover the damages occasioned by his wrongful omission and neglect, to safely keep certain property attached by him in an action brought by the plaintiff. The plaintiff procured an attachment to be issiied out of this court against the goods and property of one Clark IT. Kennedy, and delivered the same to one of the defendant’s deputies, to be served.

Appeal by tbe referee, appointed to sell certain lands and pay over the proceeds of sale to the parties in the action, from an order made at a Special Term disallowing certain items of fees charged by him, and directing him to pay over the amount thereof to the parties entitled to receive the same. The premises were bid off by the plaintiff for the sum of $7,600.

The action originated in a Justice’s Court in the city of Syracuse;. was twice tried before a jury, and on the 29th day of November, 1882, the jury rendered a verdict in favor of the respondent for thirty-four dollars and fifty cents, and judgment was on that day entered for that amount, plus eighteen dollars and eighty-seven cents costs, in all fifty-two dollars and thirty-seven cents.

This action was brought upon a policy of insurance issued by the ‘defendant on the lltli day of June, 1879, to the plaintiff J ohn Woodward, in the sum of $2,925, upon his dwelling-house and furniture therein, and upon his three barns and produce therein, and wagons, sulky and farming utensils. The premium paid was twenty-one dollars and ninety-four cents and was inserted in the policy as a gross sum.

The appeal was taken by the defendants, the Hotel Company, Charles E. Staples and Ellen M. Staples. On the 27th day of January, 1874, the plaintiffs commenced an action against the defendant, Thousand Island Hotel Company, a corporation engaged in carrying on the hotel business at Alexandria Bay, Jefferson county; for $1,370.11, and on the 9th day of April, 1875, recovered a judgment therein against said defendant for $1,370.11.

<p>Appeal from a judgment in favor of tlic plaintiff, entered upon tlie report of a'referee.</p>

The action was brought to recover penalties for a violation of chapter 237 of the Laws of 1878.

<p>Partnership — payments made by a surviving partner on a firm note — when they prevent the statute of limitations running in favor of the other partner.</p> <p>Where payments are made by one of several partners, after tbe dissolution of a firm, upon a note given by tbe firm for goods sold to it, and sucb payments are received by tbe payee in ignorance of tbe fact that tbe firm bas been dissolved, sucb payments are to be treated as if made by tbe firm, and prevent tbe running of tbe statute of limitations in favor of tbe other members of tbe .old firm, although they were made without their consent or directien.</p>

Tbe action was founded upon a judgment recovered in the courts of the Dominion of Canada, the only defense interposed was a discharge in bankruptcy granted to the defendant prior to the commencement of the action, in which the judgment sued upon was rendered. The facts are stated in the opinion of the court.

<p>Draft — what does not amount to a sufficient written acceptance thereof— 1 JR. 8., 768, seas. 6a.7i.iZ7 — Consideration — what is insufficient to support a promise to pay money to a third person.</p> <p>On March 29, 1876, one Orofut being indebted to the plaintiff in the sum of $100 gave him a draft for that amount drawn upon the defendant, who was then indebted to Orofut in a sum larger than that named. Prior to the drawing of the draft the defendant had promised the plaintiff that he would accept it if drawn by Orofut, if he then owed him the amount thereof. After he was notified by the plaintiff that he had the draft he wrote a letter in which he said that it was all right and that he would come up in a few months and pay the draft.</p> <p>Held, that the evidence failed to show such a written acceptance of the draft as was required to render the defendant liable thereon.</p> <p>Thereafter the defendant made a parol promise to Orofut and the plaintiff that lie would pay to the latter the sum of $100. Orofut credited him with that sum in an account kept against him. The balance which remained due to Orofut was not paid. It was not shown that the defendant had been released by Orofut from his indebtedness, nor that the relation of debtor and creditor existing sbetween the plaintiff and Orofut had been in any way changed.</p> <p>Held, that there was no sufficient consideration to support the promise of the defendant to pay the plaintiff, and that the latter could not maintain an action thereon.</p>

” The only section of the act necessary to be noticed is the twenty-fifth, which is as follows: “No person, association, company or corporation shall throw or deposit, or permit to be thrown or deposited, any dye-stuff, coal-tar, refuse from gas-houses, saw-dust, lime or other deleterious substance, or cause the same to run or flow into or upon any of the rivers, lakes, ponds, streams or any of the bays or inlets adjoining the Atlantic ocean, within the limits of this State.

Tbe action was originally commenced in the name of Jarvis Lord and William H. Ross Lewin who were merchants doing business in the name of Jarvis Lord & Co. By an order of the court, made previous to the trial, the appellant was substituted as plaintiff. The action is founded upon the defendant’s written guaranty of payment of all bills of liquor which Jarvis Lord & Co. might sell to John Johnson her husband.

Appbaí from a judgment, entered upon a décision of the Wayne County Court sustaining a demurrer to the plaintiff’s complaint. The action was brought for the partition of lands located in the county of Wayne which are described in the complaint as one parcel.

Tbe action was brought by the plaintiff against the defendants, the owners of a line of steamships, to recover damages for an injury sustained by him while in theif employ as a common seaman.

<p>Praetice — trial of an action at a Special Term in case of the disability of the surrogate— Code of Oiml Procedure, sees. 2545, 2486 — Bequests for findings — power of the justice to allow them to be made after the case has been submitted— General Buie Wo. 82.</p> <p>An application to admit the will oí D: M. Chauncey, deceased, to probate was tried before a Justice of the Supreme Court, the surrogate being a subscribing witness to the will and thereby disqualified from hearing and determining the question raised by the contestant. On October 8, 1883, before the case had been finally decided, the parties met before the justice and the respondent stated that he desired to submit certain requ ests to find, and asked for time to do so. The justice then stated, in the presence of the appellant, that the requests might be handed in and that he would pass upon them as of the date of-signing the decree. Judgment was granted on that day and filed on October tenth. On October twenty-fifth requests to find were submitted, and thereafter the same were with the judge’s allowance and disallowance, by an • order dated November 12, 1883, directed to be filed nunc pro tuna as of October eighth.</p> <p>Held, that even if the practice was in any respect irregular, the appellant had waived his right to object thereto by acquiescing in the arrangement made by the justice.</p> <p>The requirement of Rule 82 of the General Rules of Practice, that “all requests to find facts or conclusions of law must be made in writing to the judge or referee before whom the trial was "had, at or before the time of the submission of the action for decision,” may be waived by the consent of the parties and the approval of the judge who tries the case.</p> <p>It seems, that the provisions of section 2545 of the Code of Civil Procedure, authorizing either party upon the settlement of a case in an action tried before a surrogate to request a finding upon any question of fact, or a ruling upon any question of law, are applicable to actions tried before a Special Term of the Supreme Court, as provided in section 2486 of the said Code, in cases where the surrogate is disabled from acting. (Per Pratt, J.)</p>

.Appeal from an order reducing the amount of a verdict of a jury, and from tlie judgment entered in accordance with the said verdict.

<p>Will — when the devisee takes an estate in fee — tenancy by the curtesy,</p> <p>A testator devised to his daughter “all of the remaining property which I may have, after my estate has been settled and all the above legacies complied with, to her and her child, or children. Should the said Ada E. P. Richardson (the daughter) die without leaving any child or children, then the above legacy to be given to Q-. W. Richardson (her husband), to him and his heirs forever." The proceeds of the property received under the will were invested by the ’ daughter in the purchase of a house in which she lived with her children and her husband, both of whom survived her, and in which, after her death, the husband continued to live until his death.</p> <p>Held, that under the will the daughter took an estate in fee simple absolute in the property devised to her, and that her husband was entitled to an estate as tenant by the curtesy in the house purchased therewith.</p>

app lant, a judgment-debtor, in proceedings supplementary to executio The judgment upon which the supplementary proceedings we instituted was recovered in Kings county. An order to exami: the judgment-debtor was made by the Hon. Charles Donohue, o of the justices of the Supreme Court, in New York county, and t judgment-debtor was examined in the said county before a refer pursuant to the said order.

<p>'ight of town auffurrities to appoint flagmen at railroad crossings — -1871, chap. 609, sea. 4 — liability of the company foi' the wages of the flagmen — right of an assignee to enforce the liability — when the company cannot object that there was no proof as to the value of the services.</p> <p>ection 4 of chapter 609 of 1871 requires every railway corporation operating a railway by steam power to station flagmen at all places where the railway crosses a public highway on the grade thereof, when required so to do by the supervisor and highway commissioners of the town. In case the company neglects to station flagmen at such crossings the highway commissioners are required to appoint them, and the wages of such flagmen, “ not exceeding three dollars per day,” are to be recovered from the company in an action brought by the supervisor, or his successor in office, or by such flagman, in any court of this State.</p> <p>Teld, that the right of action conferred by the statute upon a flagman so appointed was assignable, and that the assignee might maintain an action against the company thereon.</p> <p>Jpon the trial of an action, brought to recover wages for services rendered by a flagman so appointed, proof of the contract between him and the highway commissioners was offered, but subsequently excluded or withdrawn upon the defendant’s objection. No proof of- the value of the services rendered was given. In charging the jury the judge said that they could fix the rate of the daily compensation at any sum, not more than three dollars per day. To this no exception was taken.</p> <p>Reid, that the failure of the defendant to except was a waiver of his right to question the finding of the jury as to the value of the services upon the ground ’that no evidence as to such value had been given. (Pratt, J., dissenting.)</p>

<p>Constitution, wi't. 6, sec. 18 — a justice of the peace cannot hold office often' he is seventy years of age.</p> <p>The last sentence of section 13 of article 6 of the Constitution, providing that “ no person shall hold the office of - justice or judge of any court longer than, until and including the last day of December next, after he shall be seventy years of age,” is applicable to justices of the peace. (Pratt, J., dissenting.)</p>

<p>District attorney — when Tie may act as surrogate —how the disability of the surrogate and county judge may be established — writ of prohibition — only the jurisdiction of the inferior court may be inquired into — Code of Oivil Procedure, secs. 2484, 2485.</p> <p>James H. Tuthill, the surrogate of the county of Suffolk, having recovered a judgment, as receiver, against the executors of Solomon Oakley, deceased, applied to the district attorney of the county for a citation compelling them to appear before him as the acting surrogate and account. The county judge of the county of Suffolk was one of the defendants in the judgment recovered against the executors. Upon the petition were certificates signed by the surrogate and the county judge, respectively, setting forth these facts and that they were thereby incapacitated from acting as surrogate in the matter. The citation having been issued and served, and a warrant to attach the executors for failing to appear having been placed in the hands of the sheriff, a writ of prohibition restraining further proceedings was procured,</p> <p>jHeld, that the only question to be considered was whether or not the district attorney was properly acting as surrogate.</p> <p>'That the question as to whether or not the receiver was a creditor within the meaning of section 2726 of the Code of Civil Procedure, or as to whether the papers had been properly served, could not be considered.</p> <p>That the disability of the surrogate and the county judge to act, was proved by their certificates.</p> <p>That sections 2484 and 2485 of the Code of Civil Procedure authorizing the district attorney to act as surrogate in case of the disability or incapacity of the surrogate and county judge are constitutional and valid.</p>

<p>Demurrer to answer — the defendant cannot object on the ground of the insufficiency of any allegation of the complaint admitted by his answer — liability of a trustee of a mining company for a failure to file a report —1848, chap. 40, sec. 12.</p> <p>The complaint in this action set forth two. causes of action. In the first the plaintiffs sought to recover from the defendant, a trustee of a mining company, the amount due to the plaintiffs for goods sold and delivered to the company, upon the ground that the trustees had failed to file the annual report required by the ■ act under which the company was formed. For a second cause of action the plaintiffs set forth a judgment recovered by them against the company. The defendant answered, admitting the filing of the certificate of incorporation alleged in the complaint and the failure to file the report, denying other allegations contained in the complaint and setting up the fact that he was himself a creditor of the company, in an amount exceeding that claimed by the plaintiff, and was entitled to have the amount of such indebtedness set off against the plaintiff’s claim. Upon a demurrer interposed by the plaintiff to the counter-claim or offset so set up:</p> <p>Held, that the defendant having answered admitting the filing of the certificate of incorporation, and the failure to file the report, and taking issue upon other allegations of the complaint, could not upon the hearing of the demurrer interposed to the said counter-claim or offset challenge the sufficiency of the allegation of the complaint in regard to the filing of the certificate and the failure to file the report, upon the principle that he could not demur and plead to the same count.</p> <p>Wheeler v. Ourtós (11 Wend., 654) followed.</p> <p>That as the failure to file the report made the trustees jointly and severally liable for all the debts of the company (sec. 12 of chap. 40 of 1848), the indebtedness of the company to the defendant constituted no defense to the action.</p>

Near, one of the Commissioners appointed to act upon an application for the drainage of certain lands in Westchester county.

the report of a referee. The action was brought to have certain taxes levied in Long Island City, in and for the year 1881, declared null and void and canceled them on the tax rolls. The plaintiff claimed that the assessors of the city intentionally omitted from the assessment a large quantity of property liable to assessment and taxation, and that one of the assessors was prevented by the other two 'from taking part in the assessment of property in two wards of the city.

The action was brought upon a promissory note against the maker and indorser thereof. The complaint was dismissed as to the indorser upon the ground that no notice of the non-payment of the note had been given to her.

without a jury. The action was brought by a former treasurer of the city of Yonkers to recover an amount alleged to be due to him for fees and per centages which had been paid by him into the city treasury.

The relators owned a lot in the city of Brooklyn and a building thereon, which had, prior to May, 1881, been used as a private dwelling. In that month they leased the premises to the board of education of the city of Brooklyn for the term of one year ánd six months to be used as a public school.

The relator acted as librarian and janitor of the supervisors’ room for the year 1883, and sent his resignation, to take effect January 1, 1884, to the board of supervisors. On January 2, 1884, a resolution was proposed appointing one Kinch librarian and janitor of the supervisors’ room for the year 1884. It was amended by substituting the relator, and, as amended, passed.

<p>Judgment — when a promise not to enforce it, will not prevent the plaintiff from suing upon it — false statements — when not a ground, for pi'eventing the enforcement of a judgment.</p> <p>An action brought upon a judgment, recovered against the defendants in a Justice’s Court, was defended upon the ground, among others, that the defendants allowed it to be recovered upon the faith of the plaintiff's promise that they should not be held liable thereon. It appeared that the summons was personally served upon the defendants; that a complaint and answer were filed, and that the defendants were personally present in the cqjirt when the plaintiff’s witnesses were examined.</p> <p>JELeld, that the plaintiff’s previous promise that the judgment should not be used against the defendants was no defense to its enforcement.</p> <p>The defendants claimed that at the time of the recovery of the judgment they were tol d by the plaintiff, that they the defendants,were secured from all loss by a bond of indemnity given in another action, and a judgment confessed in their favor by other persons.</p> <p>Held, that as the plaintiff was not acting as the counsel or adviser of the defendants in the action, and as the defendants were as well aware of the contents of the bond of indemnity and judgment as was the plaintiff, there was no false statement on the part of the plaintiff which prevented him from enforcing his judgment.</p>

judgment in favor of the plaintiff, entered upon the confirmation, by an order of the Special Term, of the report of a referee appointed, to pass’ upon a claim against the estate of the defendants’ testator, the validity of which was disputed.

The action was brought to recover of the defendant, a domestic corporation, the amount of the taxes claimed to be due from it under the provisions of chapter 542 of 1880, as amended by chapter 361 of 1881.

<p>Civit damage act — the sale of the liquor by the defendant must be dearly proved.</p> <p>This action, was brought by the plaintiff, under the civil damage act, to recover the-damages resulting from the alleged sale of intoxicating liquors to her husband by the defendant. The only evidence connecting the defendant with the intoxication of the husband, was the testimony of one Lasher to the effect that, two or three weeks before the husband’s death, he had seen him drink a glass of ale at the defendant’s store; that of a woman, who had seen him come out of the defendant’s store intoxicated two or three days before the death, and the fact that his hat was left in the store :</p> <p>Held, that the evidence was insufficient to sustain a verdict for the plaintiff, and that a nonsuit was properly ordered.</p>

motion of the plaintiff to pupish the defendant Sarah Stephan for an alleged contempt in drawing certain moneys from. the Rondout Savings Bank and thereby, as_claimeJ, violating the order of the jr.dge.

<p>Power of sale to executors — they cannot convey with covenants of warranty and, against incumbrances.</p> <p>A power given by a testator to bis executors to sell and convey bis real estate in their discretion, does not authorize them to enter into a contract to sell and convey the same by a good and sufficient deed of conveyance, with covenant of warranty free and clear from all incumbrances.</p>

report of a referee, to whom, under the statute, a disputed claim against the estate of John Rumsey, deceased, had been referred. The plaintiff had been indicted for a felony, in poisoning sheep of one Tichenor. He had also been sued by Tichenor for damages, connected with the same matters. Prior to September, 1881, the civil action had been tried and a verdict rendered in favor of English, the defendant therein. Some steps had been taken to appeal'.

<p>Taxation — amount to be paid by a telegraph company — Sea. 3 of chap. 471 of 1853' was repealed as to the State tax by chapter 361 of 1881.</p> <p>Section 3 of chapter 471 of 1853 provides that every telegraph company, “ using a. line partly within and partly beyond the limits of the State, shall render to the proper officer a true report of the cost to such company of their works within this State; and that the stock of such company, in amount equal to such cost, or the dividends thereof, shall be subject to taxation in the same manner and at the same rate as the stocks or dividends of other companies incorporated by the laws of this State are subject.” ,</p> <p>Held, that this act was impliedly repealed, in so far as the taxes to be' raised for State purposes were concerned, by chapter 361 of 1881 and that ia computing the taxes to be. paid by a telegraph company, under the act of 1881, the provisions contained in the act of 1853 were to be disregarded.</p>

<p>Undertaking given upon procuring an injunction — what expenses incurred in procuring its dissolution may be allowed as a pa/rt of the damages — it is sufficient if the expenses be actually incurred, they need not have been paid.</p> <p>From January, 1879, to May, 1888, the defendant, a railroad company, was in the hands of a receiver, and for more than two years it had had no board of directors. The General Term of the Supreme Court had held that the property could not he taken from the hands of the receiver until a hoard of directors was elected, and that a board could only he elected on the day fixed by the by-laws for an annual election, which was May 4, 1883. On that day, pursuant to notice, a meeting of the stockholders was held, at which $76,000 out of $80,000 of the stock was represented. Immediately after the meeting was organized, an injunction, forbidding an election, was served. .The injunction had been granted the day before by the county judge. This injunction could only be vacated, without notice, by the officer who granted it, or by the General Term of the Supreme Court which was then sitting at Binghamton. As there was no regular train by which the defendant’s counsel could then reach Binghamton on that day, a special train was hired by which the counsel was taken to that place, where the injunction was immediately vacated. The election was held, and on May seventh the action was discontinued by the plaintiff.</p> <p>Upon a reference to ascertain the damages sustained by the injunction :</p> <p>Held, that the amount paid to the railroad company for the extra train, $200, was propérly allowed as .part of the damages sustained.</p> <p>The defendants had incurred a liability to the amount of $375'to its counsel, for services rendered in procuring the dissolution of the injunction.</p> <p>Held, that it was proper to allow that sum as a part of the damages, although it had not been actually paid out by the defendant at the time of the reference.</p>

<p>General assignment — failure of the assignee to file the bond — 1877, chap. 466, does not operate retrospectively — right of the assignee to make a lease — ratification of an invadid agreement made by an assignee.</p> <p>■May 9,1877, one Smith made a general assignment for the benefit of his creditors, which was recorded the next day. The bond of the assignee was filed on August third, and an inventory was made on August second and filed on August third. May eleventh, by a sealed instrument, the assignee leased the farm to the plaintiff, the assignor’s wife, for the term of six months for $200. The plaintiff and her husband worked the farm and cut the hay. On August first and August seventeenth the hay was levied upon by the sheriff under executions against the husband as being his property.</p> <p>In this action brought by the wife to recover the damages thereby sustained:</p> <p>Held, that the failure of the assignee to file the bond as required by chapter 466 of 1877, did not invalidate the assignment, as that act did not take effect until June 16, 1877, and had no retroactive effect.</p> <p>That even if the assignee had no right to make the lease, yet as the plaintiff had . entered under it and paid the rent she was entitled to the hay until the whole agreement should be rescinded.</p> <p>That the recognition of the lease by the assignee after he had filed his bond, and his allowing the plaintiff to continue in possession and incur the expense of cultivating and harvesting, and his finally accepting the rent, operated as a ratification of the lease.</p> <p>General Rule No. 34 directing that on appeal the evidence shall not he given by question and answer, and that the exhibits shall not be printed, at length, should be observed.</p>

<p>MotioN for an order affirming a judgment in favor of the defendant and for an order denying a motion for a new trial, brought on by an order to show cause.</p>

The action was brought for the partition of certain premises. On and prior to tbe 19th day of April, 1875, Stephen Post and Abigail, his wife, owned the two narcels of land described in the complaint, one parcel being owned by the husband and the other by the wife. These parcels of land were adjacent to each other,, ' and were occupied by said Post and his wife Abigail as one parcel of land.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The judgment was for $1,064.55.</p> <p>The action was brought to recover damages for a false imprisonment. On the 30th day of April, 1881, the defendant, acting as the police justice of the village of Coxsackie, issued a warrant for the arrest of the plaintiff, on the charge of assault and battery, the sworn complaint alleging that the plaintiff did assault and beat the complainant in the latter’s place of business, by striking him without lawful authority. The complaint upon which the warrant was issued, failed to show the place where the offense was committed. The defendant issued the warrant in which was written the village of Coxsackie as the place where the offense was committed. The defendant sent for Mr. Brandon, a young lawyer of the village and a town justice of the peace, and had him come and sit by him, in order, that he might consult with him.</p>

The plaintiff began an action in .the Ulster County Court to recover damages for personal injuries claimed to have been sustained by bim in falling into' a hole by reason of the unsafe condition of the sidewalks of defendant. He had never, before the commencement .of the action, presented the claim upon which the action was founded to the treasurer of the city for payment, or tor any purpose, lout he had presented it to the mayor and common council and they had rejected it.

, of the plaintiff. The West Troy Water-Works Company is a corporation organized ' under the general law of 1873, authorizing the formation of waterworks companies in towns and villages. It was organized principally for the purpose of furnishing water to the village of West Troy. By section i of the act referred to (chap. 737, Laws of 1873) it had the right to lay its mains in the streets or avenues of Green Island, which is a village adjoining West Troy and in the same town.

The action was brought to recover damages for injuries sustained by the plaintiff from falling into an excavation in the sidewalk of one of the defendant’s streets.

<p>Habeas corpus —what errors in the sentence of a prisoner maybe reviewed, under it— when the application for it should be denied although the sentence is illegal — punishment for an assault in the third degree.</p> <p>The relator having been convicted by the Court of Sessions of Otsego county, of the offense of assault in the third degree, was sentenced to be imprisoned in a State prison for the term of one year. Upon an appeal from an order made by a county judge denying an application for a discharge of the relator upon the return to a writ of habeas corpus, addressed to the sheriff of the county, in whose custody the relator was :</p> <p>Held, that although under the provisions of 'the Penal Code the court had no power to sentence the relator to an imprisonment in a State prison, upon a conviction of an assault in the third degree, hut could only sentence him to he imprisoned in a penitentiary or county jail, yet the order denying the application should he affirmed, for the reason that the error of the court was not one which could be reviewed upon a habeas corpxis. (Per Learned, P. J.)</p> <p>For the further reason that although the sentence was absolutely void, yet the relator was properly in the custody of the sheriff as a convicted hut unsentenced prisoner. (Per Bocees, J.)</p>

<p>JBMdeiux — authority to enter into a contract, given at a meeting of the directors of á company, may he proved by-parol — it need not appear in the minutes — when the principal is liable upon a contract signed, by the agent m his own name.</p> <p>Parol evidence is admissible to show that at a meeting oí the directors of a private corporation, its secretary was authorized to enter into a contract for the transportation of lumber needed by the company.</p> <p>The validity of a contract so made by the secretary is not affected by the failure of the directors to have the authority to make it entered in the minutes.</p> <p>By-laws of a corporation, requiring- contracts to be made in a particular way and form, do not prevent the making of a particular contract in such a form as the officers of the company may direct at a regular meeting.</p> <p>A written contract was entered into between the plaintiff and the defendant, which was signed in behalf of the defendant “O. T. Segar, secretary and .treasurer.”</p> <p>Held, that parol evidence was admissible to show that Segar had authority to act for the company, and that it was understood by both parties that the company was to be charged with the performance of the contract, and that such proof having been given the company was liable thereon.</p>

Appeal by Stephen S. Wandell from a decree of the surrogate of Albany county taking and stating the accounts of the said Wandell, as guardian of Florence L. Craig.

<p>Appeal from an order denying the motion of one Evan J. Henry, for leave to intervene herein, and granting an allowance to the plaintiff to be paid by the said Evan. ></p>

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

<p>Administratrix— when she will he charged with holding assets of the estate, in favor of creditors thereof — when real estate conveyed to her will he treated as assets.</p> <p>One Morey, who held a contract for the purchase of certain land upon which there was unpaid about $300, assigned the same to one Potter to secure a debt of $300 due to the latter. In July, 1881, Potter assigned the contract to one Vine to secure a debt of $200 due from Potter to Vine’s wife. ¡September fourteenth or fifteenth, Vine obtained an assignment of Morey’s interest in the contract, paid the amount due upon it, and took a deed of the land in his own name. Five days thereafter Potter died. In October, Vine conveyed the land to Potter’s wife, who was also Potter’s administratrix, and took back from her a mortgage for the amount due to his (Vine’s) wife, and the amount paid by him to get his deed from the owner.</p> <p>Held, that the administratrix was properly held to have received the land as security for the amount due to the Potter estate from Morey, and was properly charged with holding assets of the estate, and directed to pay creditors of the estate therefrom.</p>

<p>. Sewers — when their construction hy a city will he enjoined, on the application of a party to he injured thereby — it is not necessary that the injury should result immediately after their construction — the person contracting to build t/ie sewer may he made a defendant.</p> <p>This action was brought to restrain the city of Binghamton from constructing a sewer in Carroll street, running into the Susquehanna river, upon the ground that the sewage would be deposited upon land lying in or near the stream, and be a nuisance to the adjoining land of the plaintiff. The court held that if the sewer was used only by the residents of Carroll street the discharge therefrom would be insufficient to injure the plaintiff, but that if it should be connected with other sewers, as was intended by the city, the discharge would in lime produce a nuisance. It allowed the sewer to be constructed for the use of the residents of Carroll street, but enjoined the city from connecting other sewers with it.</p> <p>Held, that this was a proper judgment to render.</p> <p>The court found that the injury to be occasioned by the deposit of the sewage would vary with the nature of the season, it being greater in dry and less in wet seasons, and that no injury might be occasioned until after the sewer had •been in full operation for a year or more.</p> <p>Held, that the fact that the injui-y had not actually been or would not immediately he sustained did not prevent the court from granting the injunction.</p> <p>That if the plaintiff had remained inactive and had permitted all the sewers to be constructed, knowing the damage which would result therefrom, and should thereafter apply for an injunction, it might he held that he was equitably estopped from claiming that kind of redress.</p> <p>' The person having the contract to construct the -sewer was made a party defendant.</p> <p>Held, no error; that he was a proper, though perhaps not a necessary party defendant.</p>

Ceetioeaei to tlie board of supervisors of Ulster county to review tbe action of that body in auditing certain bills and accounts pre•sented to it.

43 damages and $309.08 costs. The action was one of quo warranto to determine the title to the office of mayor of the city of Albany, the relator alleging that he was duly elected to the office, and… Held: as a matter of law, that there were no disputed questions of fact upon the pleadings, and directed a judgment for the relator for the amount demanded.

<p>Appeal from a decree of the surrogate of Greene county settling the account of the administrators of Samuel Hopkins, deceased.</p> <p>It was claimed by the appellants that the surrogate erred in allowing commissions to the administrators.</p>

The action was brought into the County Court by an appeal from a judgment of a justice of the peace. A new trial was had before the County Court and a jury.

<p>Sale under execution— redemption by another judgment creditor — the whole amount of the fn'st bid must be paid.</p> <p>June 15, 1874, one Youmans recovered a judgment against Marcus L. Terry for $716.53, under which real estate belonging to Terry was on October 7, 1882, sold by the sheriff to Youmans. In 1879 Terry brought an action to have the said judgment set aside, in which action a judgment was rendered on August 7, 1883, affirming the former judgment and finding that there was then due thereon $768.53. January 7,1884, Youmans assigned the sheriffs certificate of sale to Theodore Terry, and also assigned to him the judgment for costs recovered in the last action.</p> <p>August 19,1874, one Griswold recovered a judgment against Marcus t. Terry, which in 1876 he assigned to Neish. January 7, 1884, Neish paid $832.07 to. the sheriff and claimed to redeem from the sale to Youmans.</p> <p>Held, that in order to entitle him to redeem he should have paid to the sheriff not only the amount due upon the judgment under which the sale was made, but. the amount bid by the purchaser thereat, with interest, even though the purchaser was the judgment creditor, and although the amount bid at the sale exceeded the amount due upon the judgment.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>The action was brought to recover damages for an alleged slander. The complaint claimed $4,000 damages. The jury rendered a verdict in her favor for $4,500, $500 of which was remitted by the plaintiff.</p>