Volume 4 — Silvernail Court of Appeals Reports

<p>Partnership.—An agreement by one party to advance funds for the purchase of houses to be secured by mortgages on the property, and by the other party to furnish money for improvements, and to hold the title in his own name, with an equal division of anticipated profits, does not create a partnership.</p>

<p>Wills. Trusts.—A clause in a will creating a trust, which cannot he carried out and not making an unconditional gift of the money to the executor which he can dispose of as he sees fit, is void.</p>

<p>Insurance. Construction.—Where a policy of life insurance is so framed as to promise a payment of a specified sum, and then to impair such promise by the introduction of subsequent and obscure clauses difficult to be understood or requiring expert knowledge for their comprehension, such construction should he given as the insurer had reason to suppose was adopted by the'insured.</p>

<p>Vendor and purchaser. Title—Specific performance of a contract to convey real estate will be decreed, where there is no reasonable ground for apprehension that the vendor’s title to any portion of the premises described in the contract is defective, or that the vendee may be prejudiced, for any such reason, by specifically performing it.</p>

<p>Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.</p>

<p>Executors, etc. Assets.—To charge a purchaser or pledgee, from an executor, of the personal assets of the estate, the facts need not be such as of themselves to establish or compel the conclusion of some wrong propose. If they furnish reasonable ground for believing in the existence of some dishonest intention to misapply the moneys, or that the executor is in the very transaction applying it to his own private use, the purchaser or pledgee becomes responsible to those injured.</p>

<p>1. Wills. Revocation of probate.—Where the proceeding to procure the revocation of the probate of a will is carried on, in the surrogate’s court, from their commencement as for the reproving of the will, neither the surrogate nor the general term can pass upon anything except as to the legal execution of the will and whether its probate should stand.</p> <p>2. Same. Questions as to the validity of the decree admitting the will to probate, are not proper in a subsequent proceeding to obtain a revocation of the probate, where all interested parties were duly in court upon the former proceeding.</p> <p>3. Appeal. Finding.—The decision of the surrogate upon conflicting evidence, affirmed by the general term, concludes the court of appeals.</p>

<p>1. Appeal. Verdict directed by court.—To enable a party to review in the court of appeals a judgment upon a verdict directed by the court, subject to the opinion of the general term, a special case for the former court must be made and settled under the direction of the general term, which shall contain a concise statement of the facts and questions of law arising thereon.</p> <p>2. Same. What reviewed.—On appeal to the court of appeals from a judgment alone, only errors of law which have been raised by some exception can be reviewed.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon the verdict of a jury at circuit.</p>

<p>Master and Servant. Bisk.—A telegraph company is bound only to use reasonable and ordinary care to provide for its employes a safe place in which to do their work, and they assume the ordinary risks of the employment in which they are engaged.</p>

<p>Negligence. Contributory.—The undisputed facts of this case were held to establish contributory negligence on the part of plaintiff’s intestate.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, reversing decree of surrogate denying probate of the will of Samuel Wilcox, deceased.</p>

<p>1. Evidence. Recitals.—Recitals in an instrument, not witnessed or acknowledged, that the parties thereto are subscribers and proprietors of a certain tract of land, are not evidence of title against a person, who is not in privity with the parties who executed it, but is in by virtue of a hostile possession.</p> <p>2. Partition. Parol.—Where no act of exclusive ownership or dominion is shown, no actual possession proven nor any claim of title even asserted, no such an entry upon, nor exclusive possession of, the premises is established as is necessary to render valid a parol partition thereof.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate admitting will and seven codicils to prohate.</p>

<p>1. Will. Marriage.—The subsequent marriage of a widow revokes her will.</p>

<p>Appeal from judgment of the supreme court, second department, affirming judgment in favor of defendant, entered on verdict.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff on verdict of a jury.</p>

40 damages and costs. The complaint is upon a promissory note payable four months after date for $1,250, made by the defendant Philips to the order of the defendant Gerlach, and endorsed-by the defendants Gerlach and Herdic, of which the plaintiff was the owner. Gerlach the endorser appeals.

<p>Appeal from a judgment of the general term, second department, affirming a judgment entered upon a decision at special term, dismissing the complaint.</p>

The judgment, conformably with the complaint, contains an injunction restraining defendants from maintaining and operating their elevated railroad in front of defendant’s premises, No. 104 South Fifth avenue, unless within a time limited by the judgment they pay plaintiffs the sum of $8,000 adjudged to be the value of the easements belonging to the plaintiffs and appropriated by the defendants for the permanent location of the existing structure of the railway and for the…

<p>Appeal from judgment of the New York superior court, general term, affirming judgment entered on verdict directed by trial judge in favor of plaintiffs.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.</p>

<p>1. Appeal. Exceptions first heard at general term,.—Where a single question of fact is submitted to the jury without a suggestion that there are any others which can be affected by the verdict, the judgment is suspended, the exceptions ordered to be heard, and were heard, in the first instance at the general term, and the judgment directed to be entered, and was entered on the verdict, without any new proceeding necessary to the entry, an appeal from such judgment to the same general term is not permissible.</p> <p>2. Same.—Such judgment is not an ordinary judgment, but a judgment of the general term.</p> <p>3. Same.—Sections 1336 and 1360 do not warrant an appeal to the general term in such case.</p> <p>4. Same.—Where, in such case, final judgment can not he entered until some preliminary step or proceeding has been taken subsequent to the decision of the general term, such subsequent step or proceeding only can be reviewed by the general term.</p>

<p>Sale.—Where the defendant denies that he ever sold certain stock, either as agent or owner, and a witness testifies that he sold it to plaintiff on the employment of another party before plaintiff had even seen defendant, the fact that defendant received therefor plaintiff’s check payable to his order, deposited it and accounted for its proceeds, does not, as matter of law, constitute a sale by him either as agent of an undisclosed principal or as owner, nor make out a ratification.</p>

Appeal by the defendant from a judgment directed by the general term of the superior court of the city of New York upon a verdict directed by the trial court in favor of the plaintiff, and upon exceptions ordered to be heard in the first instance at the general term.

<p>1. Assignment for creditors. Fraud.—The intentional withholding and secreting of assets of a substantial value from the possession, of the assignee is a fraud upon the rights of creditors and renders the assignment void.</p> <p>2. Same.—Where the acts of an assignor are voluntary and necessarily operate to defraud creditors, he must be deemed to have intended to defraud.</p> <p>8. Same.—The assignor has no right to retain, and secrete money for the purpose of using it in effecting a compromise.</p> <p>4. Same.—The payment of such money to the assignee, after an action is brought to set aside the assignment as fraudulent, does not validate it.</p>

<p>1. Negligence. Degree of care.—A company is only required to use such reasonable precautions to prevent accidents as would ordinarily be adopted by careful, prudent persons under like circumstances. It is not required to use every possible precaution to avoid injury to others.</p> <p>2. Same. Submission to jury.—Where the evidence fails to establish negligence on the part of the company, the submission of the question to the jury is error.</p>

<p>Appeal from judgment of the general term, fifth department, entered on an order affirming a judgment entered on the verdict of a jury.</p>

<p>Appeal from a judgment of the general term, second department, affirming the judgment entered on a verdict.</p>

o This was an action for the foreclosure of a mechanic’s lien filed under the general act against certain property in the city of Yonkers belonging to the defendant Sahagian. Other lienors, who were joined as defendants, appeared and asserted their claims by answer duly served upon the owner.

<p>Appeal from order of the New York superior court, general term, affirming order of reference.</p>

<p>1. Negligence. Inference.—The inference of negligence, which the jury may draw, must be from facts, which establish such a neglect of duty, or such an omission of care, on the employer’s part, as to have rendered the accident a possible one to the employes while in the performance of their duty.</p> <p>2. Same.—In the absence of proof of such facts, and of evidence exonerating the deceased from contributory negligence, no case is made out for submission to the jury.</p> <p>S. Same.—The mere fact of the violent death of an employe is not enough to authorize an inference of the company’s negligence.</p>

<p>1. Negligence. Landlord and tenant.—The owner of a building, who occupies the lower floor and lets the upper stories for apartments, is not bound to keep the hallway lighted or platform cellar door on his floor locked, at the peril of becoming responsible for injuries to the tenants or their visitors from falling down the cellar stairs.</p> <p>2. Same.—A guest of the tenant is entitled to the same amount of care, but to no more than that to which the tenant himself is entitled.</p>

<p>Evidence. Explanation.—Where, in an action on a contract, the defendant introduces a letter received from the plaintiff in order to show, by expressions therein, a cancellation of a contract, and thus to establish such defence, it is competent for the latter to put in evidence a newspaper article in explanation of his letter and of the cause for writing it, but not as proof in support of his case.</p>

<p>Appeal. New Trial.—The jurisdiction, conferred on the Court of appeals, tó entertain appeals from orders granting or refusing new trials, is inapplicable to jury cases, where the order was made upon the facts.</p>

<p>Master and servant. Negligence.—Where, in an action for personal injuries, the deceased’s duty was to examine the cars and see that they were in good repair, and if found out of repair, not to use them hut to send them to the shop for repairs, and he, in negligent disregard of this duty, used a car which he knew to he imperfect, and was injured, the submission of the defendant’s negligence to the jury is error.</p>

<p>1. Negligence. Railroads.—A rule prohibiting trains from approaching stations, when other trains are discharging their passengers, has no application when both trains are moving.</p> <p>2. Same.—The evidence, in this case, was held not to show any negligence on the part of the defendant, so that the submission of such question to the jury, was error.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered on verdict and order denying motion for new trial.</p>

<p>Insurance. Question of fact.—In an action on a policy of life insurance, where plaintiff’s intestate had stated, in his application, that he had never had consumption, it was held to be a question of fact for the jury to determine, under the facts and circumstances of the case, as to whether he was, at the time the policy was issued, afflicted with consumption.</p>

<p>1. JEvidence. Opinion.—A witness, who is not an expert, cannot properly give an opinion as to the mental capacity of a grantor, or as to whether he was rational or irrational, even when such opinion may he based upon specific acts and conversations, and his personal observations.</p> <p>2. Same.—He can state only the acts and conversations of which he has personal knowledge, and then be permitted to say whether, in his judgment, such acts and conversations were rational or irrational, or were those of a rational or irrational person.</p> <p>3. Appeal. Discretion.—The postponement of a trial of an issue between the plaintiff and a defendant until other defendants have been served and their time to plead has expired, is a matter resting entirely in the discretion of the trial court, and a refusal is not reviewable error in the court of appeals.</p>

<p>1. Dower. Divorce.—The “misconduct,” which deprives a wife, divorced on account thereof, of her right of dower, is adultery only.</p> <p>2. Same. Foreign judgment.—The effect, which a judgment of divorce, granted in another state, has upon the lands of the husband within this state, is to be determined by the laws of this state.</p> <p>3. - Same.—A decree of divorce, obtained by a husband in another state on the ground of his wife’s abandonment of him, does not deprive her of her then existing dower rights in his lands in this state.</p>

<p>Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendant.</p>

<p>1. Will. Construction.—Whether words in a will attached to a gift explaining the desire of the testator in respect to its use or disposition constitute a limitation of the bequest, or are to be regarded as advisory or recommendatory, depends upon the intention of the testator; they are construed as mandatory or advisory according to the intention as ascertained from a consideration of all the provisions of the will which bear upon the subject.</p> <p>2. Corporation. Charter.—Where the words used in defining the powers of a corporation have a common and well understood meaning and are free from ambiguity and doubt, they cannot be enlarged by or in view of the tenets of any sect, the personal belief of the incorporators, or their understanding of the words used in the statute creating the corporation or in a certificate of incorporation under a general law.</p>

<p>1. Contract. Construction.—Where the defendants, by the terms of the contract between the parties, were to have a bonus in case then- sales of plaintiff’s goods exceeded those of the year before, but such bonus was to be forfeited if they violated certain conditions, they must show a compliance with such conditions in order to entitle them to counterclaim for such bonus.</p> <p>2. Evidence. Admission in one's favor.—A party’s own letter cannot be evidence, in his own behalf, of the facts therein stated, where they are not part of the res gestee.</p>

This was an action brought to dissolve the defendant corporation.

<p>1. Mandamus. Office.—The writ of mandamus should be refused to aid the admission of a claimant into an office already filled under color of law, where the question of the title to the office turns upon the construction of statutory provisions.</p> <p>2. Same.—The appropriate and sufficient remedy is, it seems, by information in the nature of a quo warranto.</p>

<p>Appeal from judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff, entered upon a verdict, and order denying motion for new trial on the judge’s minutes.</p>

<p>Appeal from judgment of the New York superior court, general term, affirming judgment entered in favor of defendant upon verdict of a jury, and order denying plaintiff’s motion for a new trial.</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff entered on verdict of jury and order denying defendants’ motion for new trial.</p>

<p>Appeal from a judgment of the New York superior court, general term, affirming judgment in favor of plaintiff against both defendants entered on verdict of jury.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment on verdict and order denying motion for new trial.</p>

<p>1. Appeal. Court of appeals.—Where the pleadings, proceedings and evidence disclose that the amount in controversy is less than |500, the case is not appealable to the court of appeals.</p> <p>2. Same.—An action, though in form to foreclose a mechanic’s lien, where the lien has been discharged-by a bond, furnished pursuant to the provisions of section 24, chap. 342 of 1885, is not one which is appealable to the court of appeals as affecting the title to real property or an interest therein.</p> <p>3. Judgment. Mechanic's lien. Where the complaint, in an action to forclose a mechanic’s lien, prays for a judgment as for a foreclosure and sale, but also alleges the giving of a bond discharging the lien of record, the court may direct any judgment consistent with the case made by the complaint and embraced within the issue.</p>

<p>Evidence. Contract.—Where one party to an action to recover the value of services sets up a special agreement as to the value, which is controverted by the other party, who also alleges a special agreement, it is proper for either party to prove the value of the services, as bearing upon the issue between them and the probability that the one or the other agreement was made, and as enabling the jury to find, for the purpose of settling the conflict of evidence, that their minds did not meet upon any special contract.</p>

June 2, 1887, the parties to this action entered into a written contract, by which the plaintiff agreed to build for $3,050 a dwelling for the defendant and complete it on or about November 1st of that year. The defendant paid $1,900 on the contract, and this action was brought to recover $1,150, the remainder of the contract price, and $73.75 for extra work claimed to have been done.

Motion to amend remittitur so as to direct comptroller to pay back excess of taxes illegally assessed upon relator, with interest.

<p>Res adjudícala. Effect.—The decision of the court of appeals on a point involved in the action, though not a bar, should as authority, control the decision of the same point in a subsequent action between the same parties and an additional party, as to the latter, who acquired an interest from parties to the former suit before entry of judgment therein.</p>

<p>Appeal from order of the New York common pleas, general term, affirming order denying motion to resettle case.</p>

<p>Master and Servant. Buies.—The failure of a master to adopt rules as to precaution to be observed by his employes is not proof of negligence, unless it appears, from the nature of the business in which the servant is engaged, that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity of such precaution.</p>

<p>Appeal from judgments of the supreme court, general term, first department, affirming referees’ reports and giving judgments to plaintiffs.</p>

<p>Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiffs.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff • against defendants, entered upon the report of a referee.</p>

<p>Negligence. Cause.—Where, in an action for personal injuries, there are two or more possible causes of an injury, for one or more of which the defendant is not responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as the other, the plaintiff cannot recover.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing the complaint and directing a judgment for defendant upon a counterclaim.</p>

<p>'Motion for reargument.'</p>

<p>1. Damages. Contract.—Substituted damages founded upon the value of the property cannot be awarded, until the court determines, first, that the action is in equity, and second, that the plaintiff is entitled to a specific performance of the parol contract of the conveyance of the real estate, and that the defendant has put it out of his power to perform.</p> <p>2. Same.—The value of the property cannot be allowed as damages in an action at law for a breach of the contract, where the invalidity of the contract is set up as a defense.</p> <p>8. Same.—Damages, to which the plaintiff may be entitled in such case, stated.</p>

<p>Appeal. Former decision.—Where, notwithstanding the former decision of the court of appeals, the referee, upon evidence, which does not alter the defendant’s case in any aspect to his advantage, dismisses the complaint, when he ought to grant judgment in his favor, the judgment will he again reversed, and a new trial ordered.</p>

<p>Appeal from a judgment of the general term of the superior court of the city of New York, which affirmed a judgment entered on a verdict, and also affirmed an order denying defendant’s motion for a new trial made on the' minutes.</p>

The question upon the appeal rests upon an exception taken to the ruling of the trial court admitting an entry upon the ledger of the defendants as evidence. The action was brought to recover the price of a bill of goods sold by plaintiff’s assignors to the defendants. There was no question in relation to the price, amount or delivery of the goods.

<p>Appeal from an order of the general term of the court of common pleas for the city and county of New York, reversing a judgment entered upon a verdict at the trial term of that court, and granting a new trial.</p>

<p>1. Trial. Findings.—Where, in an equity action, the verdict covers the whole ground of controversy on the facts, and the right to the relief sought follows upon the adoption, by the court, of the finding of the jury, the court may, upon adopting such finding, direct judgment without further trial.</p> <p>2. Same.—In such case, the omission of the court to make findings of fact and law is an irregularity merely. The remedy of the defeated party, if he is entitled to any, is by motion.</p>

<p>Appeal from judgment of supreme court, general term, fifth department, dismissing appeal on the ground that the appellants accepted a substantial concession made as a condition for obtaining the order appealed from.</p>

<p>1. Negligence. Accident.—A street railway company is not liable for an injury due to the party’s own carelessness or to pure accident.</p> <p>2. Same. Preference.—Street railway cars have a preference in the streets; and, while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.</p>

<p>Appeal from judgment of the general term of the supreme court, in the fifth judicial department, entered on an order affirming a judgment of the court at circuit.</p>

Action to compel a specific performance of an oral agreement to execute a written instrument granting to the plaintiff a license to use certain patents and inventions for the manufacture of gloves and mitts.

<p>1. Appeal. Evidence.—Where it affirmatively appears from the opinion that incompetent evidence was relied on in deciding a material issue, its admission cannot be held to he a harmless error.</p> <p>2. Evidence. Opinions.—Where there is a sharply litigated question of fact between the parties as to the terms of an oral agreement between them, the testimony of a witness as to his understanding of his rights under a contract of his own with the plaintiff claimed to he similar to the one in question, is incompetent.</p> <p>3. Same. Contract.—Where, in an action upon a contract relating to the sale of a serial publication, the defendants claimed that the orders referred to meant orders given by persons accepting and paying for the whole or some part of the work subscribed for, and did not include those given by persons who refused to take and pay therefor in whole or in part, it !s proper to permit the plaintiff to show that some of the subscriptions failed in consequence of defendants’ delay to deliver.</p>

<p>Appeal from judgment of the New York superior court, general term, affirming order and adjudication of special term after a verdict, refusing to grant a writ of mandamus to compel the commissioner of public works to allow relator to construct its road through certain streets.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff recovered on trial before the court without a jury.</p>

<p>Appeal. Beargument.—A motion for a reargument must be founded on papers, showing that some question, decisive of the case and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with the statute, or a controlling decision, to which, the attention of the court was not drawn through the neglect or inadvertence of counsel.</p>

On the 12th day of May, 1890, Dora Lichtenstein made complaint before a police justice of Rochester, charging the relator, her alleged husband, with being a disorderly person, in that he neglected to provide for her a support according to his means. Such proceedings were had that on May 16th he was adjudged a disorderly person and directed to give a bond for his wife’s support, or failing in that to be imprisoned in the Monroe county penitentiary for six months.

<p>Appeal from order of the supreme court, general term, second department, reversing order granting an extra allowance.</p>

<p>1. Municipal corporations. Officer.—A municipal officer, who has been unlawfully removed from an office to which another has been appointed, and who has not, by certiorari or otherwise, obtained a reversal of the order of removal, or a lawful reinstatement in the vacated term, but has .acquiesced in such removal, cannot recover from the corporation the compensation incident to the office, which has accrued after his removal and during the period in which he performed no service.</p> <p>2. Same. Title to office. The title to a public office cannot be tried in an action to recover its salary.</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, reversing conviction and judgment of murder and ordering a new trial in the oyer and terminer of Madison county.</p>

<p>1. Costs. Appeal.—The court of appeals, upon the reversal of the judgment and the granting of a new trial in an equitable or legal action, has the power, in its discretion, to provide that the costs shall abide the event, or to award them absolutely to either party.</p> <p>2. Same.—The provision that “the costs shall abide the event” always means, in such case, all the costs of the action up to, and including, the decision of said court.</p>

<p>Appeal from an order of the general term of the supreme court, second department, denying a motion for a new trial, made under § 1001 of the Code of Civil Procedure, and affirming an interlocutory judgment which directed an accounting-</p>

<p>Evidence. Immaterial.—Where the jury has expressly found that the decedent did not have testamentary capacity, the admission of incompetent testimony, tending to establish undue influence, is not prejudicial error.</p>

<p>1. Master and servant. Rules.—A railroad company is bound to make and promulgate rules which, if faithfully observed will give to its employes reasonable protection from injury.</p> <p>2. Same.—Where there is no proof of neglect, on the part of the company, to make and promulgate suitable rules for the information and government of its employes, the submission of such question to the jury is error.</p> <p>3. Same.—There can be no recovery in such case, where the carelessness of a co-servant was the sole cause of the accident, and a refusal in such case to instruct the jury to such effect, upon request, is error.</p>

<p>1. Former adjudication. Bar.—Any fact, once found and embodied in a judgment, must, it seems, be regarded as final and conclusive between the parties thereto and their privies, whenever and wherever the question subsequently arises.</p> <p>2. Appeal. Charge.—An exception to a refusal to charge that the findings and decisions of the court, contained in the judgment-roll put in evidence, are conclusive upon a certain point, presents no question for review where the judgment-roll is not embraced in the record.</p> <p>3. Damages. Flevated railroads. Though, in an action against an elevated railroad, a jury may, in their discretion, award interest upon unliquidated damages, incapable of liquidation by computation, they are not bound to do so, and a direction to compute interest on the amount allowed for each year is error.</p>

Cross appeals from a judgment of the general term of the supreme court, first department, modifying a judgment entered upon the report of a referee, and as modified affirming the same.

<p>Appeal from order of the supreme court, general term, second department, affirming judgment in favor of defendants.</p>

<p>Appeal from judgment of the New York common pleas, general term, affirming judgment upon an accounting of a copartnership.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff.</p>

<p>Motion to substitute plaintiff’s wife as his executrix.</p>

<p>Motion to prefer case on appeal.</p>

<p>Appeal. Stipulation.—Where, in pursuance of a stipulation which recited that an undertaking given on an appeal to the court of appeals had been cancelled, an order was entered which gave plaintiff leave to file another undertaking, to perfect the appeal, within five days, and provided that the new undertaking should have, when filed, the same force- and effect as though it had been filed and served when the first undertaking was given, and that, if not filed as specified, the appeal should be dismissed, the case was placed, by the stipulation and order on the same footing as though no undertaking had been given, and the appellant had the right, within the statutory time for appealing, to-take and perfect another appeal.</p>

<p>Creditor’s action. Parties.—A creditor at large cannot maintain an action against his debtor to set aside an alleged fraudulent judgment entered in favor of another creditor. Such right is acquired only after his claim is established by a judgment and execution returned unsatisfied.</p>

<p>Appeal from judgment of the supreme court, general term, -second department, affirming judgment entered upon the verdict of a jury and order denying motion for new trial on the minutes.</p>

<p>Appeal. Board of claims.—To sustain an appeal to the court of appeals from an award of the board of claims, where a claim has been wholly rejected by said board, the right to recover some sum must conclusively appear in order to raise a question of law, or there must have been some material and erroneous ruling adverse to the claimant, which prejudiced him in the prosecution of his case.</p>

<p>Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon a verdict of a jury and order denying motion for uew trial.</p>

<p>1. Attorney. Compensation.—An attorney, while acting as a guardian ad litem, cannot recover for services rendered by him as counsel for a party whose interest is adverse to that of the infants.</p> <p>2. Same.—Nor can he recover where he neither did the services he was employed to do, nor made any special preparation for its performance.</p>

<p>Contract. Fraud.—Where a committee of railroad mortgage bondholders, appointed on foreclosure sale of the mortgaged property for the purpose of effecting a reorganization, entered into a contract within the scope of their authority, an action to have such contract adjudged null and void is not sustainable, in the absence of facts which tend to show a fraud on the part of the contractors, or a participation in some fraud of the committee, and it is not enough to aver conduct on the part of the latter which might amount, as between them and the bondholders, to a violation of their trust duties.</p>

<p>Appeal from order of the supreme court, general term, first department, affirming order vacating or reducing assessments of personal property.</p>

<p>Appeal from order of the supreme court, general term, second department, affirming an order denying a motion to compel a purchaser at a foreclosure sale of real property to complete his purchase.</p>

<p>Deposition. Surrogate's court.—A surrogate has power in Ms discretion, under section 2538 of Code of Civil Procedure, to grant an order directing the issuing of a commission to examine before trial a party to a proceeding pending before it.</p>