Volume 40 — New York Supreme Court Reports

<p>Appeal from a judgment rendered upon the dismissal of the complaint at the circuit.</p>

Appeal by the city of New York from an order made at a Special Term, granting leave to each of the petitioners herein to file a separate petition -for the vacation or reduction of the assessment referred to in a-joint petition theretofore filed by tbem.

<p>Exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed at the circuit.</p> <p>The action was brought upon bonds issued by the defendant, a corporation created and existing under the laws of Illinois and Indiana.</p>

<p>Execution — it ceases to be operative'after a sale has been made thereunder — the attorney issuing it ca/nnot thereafter withdraw it.</p> <p>.In an action brought against Abraham Thonias and Horace Orandall a warrant of attachment was issued "and a levy thereunder made upon the interest of Thomas in certain real estate, he being a non-resident. Thereafter the summons was served upon him personally, and on June 22, 1880, a judgment was . entered against him. February 17,1881, an execution, general in its character and not in the form prescribed by section 1370 of the Code of Civil Procedure, was issued thereon, under which the attached premises were on April sixth sold to one of the plaintiffs in the action, for fifty dollars. On April nineteenth the attorney for the plaintiffs discovered that the attachment was invalid and countermanded the execution theretofore issued. He then issued a new execution under which the premises were on. May 31, 1881, sold to the same purchaser. No sheriff’s certificate was ever issued under the first sale.</p> <p>In an action brought by one to whom Thomas had sold the premises prior to the time of the first sale, to have the second sale canceled and to be allowed to redeem from the first sale upon complying with the provision of the statute relating thereto:</p> <p>Held, that the relief asked for should be granted.</p> <p>That after the sale under the first execution had actually been made, the plaintiffs’ attorney could not withdraw the execution by reason of any defects or irregularity existing therein, or in any way affect the sale that had been made thereunder.</p>

<p>Appeal from a judgment, entered upon the dismissal of the plain•tiff’s complaint at the close of the plaintiff’s case, and from an order granting an additional allowance to the defendant of five per cent.</p>

<p>Appeal from an order made at a Special Term, directing the costs and allowances of the parties to be paid ont of moneys in the hands of the plaintiffs belonging to the estate of their testator.</p>

<p>Action for dower — consent by the widow to receive a gross sum — at what stage of the case it does not gvoe her such a vested, right as wiU enable her representatives to revive the action after her death — when am, extra allowance should not be made.</p> <p>The plaintiffs’ testatrix sought in this action to have her rights of dower determined in certain parcels of real estate described in the complaint; to have a deed and a mortgage executed by her husband declared void as to her ; to be permitted to redeem a proper proportion of such mortgages as were valid liens-upon the premises, and to receive a gross sum in lieu of her dower, in case a. sale should be adjudged and she should file the requisite consent, or to have a portion of the premises absolutely assigned to her. While the action was pending- before a referee, the testatrix, then the plaintiff, served upon the defendant, the receiver, a consent'in writing, duly executed and acknowl-. edged, to receive a gross sum in lieu of her dower. Subsequently, and prior to the determination of the action, the original plaintiff died and the action was thereafter revived by her executors. The referee found that, although if the-plaintiff had lived she would have been entitled to some right of dower, and that a distinct parcel could not have been admeasur.ed -to her, yet, that her agreement to accept a gross sum in lieu thereof did not give her such a vested right in the sum to be ascertained, as that the action could be carried on-'after her death by her representatives, and he therefore dismissed the complaint, without awarding costs to any party.</p> <p>Held, that his decision should be affirmed.</p> <p>Subsequently, upon a motion at ¡Special Term on the part of the respondent for an extra allowance, an order was made awarding to his attorney, “ an extra allowance of $750, together with costs.”</p> <p>Held, that the case was not one in which an extra allowance should have been, made, and that the order should be reversed.</p>

<p>Appeal from an order rendered at a Special Term, denying a motion to set aside an order for an examination of the defendants herein before triai.</p>

<p>Pleadings — action for the conversion of personal property — what allegation of the ownership of the property by the plaintiffs is sufficient — what is a sufficient allegation of a conversion thereof by the defendants.</p> <p>complaint in this action alleged that one Berney died, domiciled and residing jn France, leaving the plaintiff, Louise Berney, his widow, and the other plaintiffs, his nepiiews and nieces; that he left a last will and testament; that “under and by virtue of the laws of France, where the testator had his domicile, the title -to all the personal property of which said testator was possessed at the time of his decease, vested immediately thereafter in the plaintiffs, other than the widow, * * * the residuary legatees named in said will, their title being subject, however, to the payment of the particular legacies by said will bequeathed and of the annuities therein given:”</p> <p>Held, that this was a sufficient allegation of ownership to entitle the plaintiffs to maintain an action to recover for the conversion of a portion of the personal property of which the testator was seized at the time of his death.</p> <p>The complaint further alleged that one James Berney had fraudulently obtained possession of certain bonds, the property in question, by virtue of letters testamentary, procured in the court of another State having no jurisdiction in the matter, and had sold and transferred the property to the defendants; that by the will and codicil, and the several powers of attorney, copies of which were annexed to the complaint, the defendants had legal notice of the limitations on the power of sale and of the illegal and invalid character of the title to the said bonds so assigned to them; and further, that the defendants had converted the said bonds to their own use.</p> <p>Held, that there was a sufficient allegation of a wrongful conversion of the bonds by the defendants.</p>

of a jury, and from an order denying amotion for a new trial made upon the minutes of the justice before whom the action, was tried.

06, after a decree of foreclosure and sale had been-entered and a sale had been made in another action brought to foreclose a prior mortgage upon the same premises, and without any sale having been made of the premises under the judgment of foreclosure entered in this action, which was brought to foreclose a. second mortgage on the said premises.

Morgan, as executrix -of the last will and testament of Charles Morgan, deceased. The .application was made in behalf of two daughters and a grandson of the deceased. The writ of mandamus has been applied for in order to obtain the -direction of this court requiring the surrogate to decide a portion of the controversy submitted to him on the settlement of the accounts of the executrix of the estate of Charles Morgan, deceased.

<p>Motion for,a new tiial on ike minutes — when am, appea/t'ance and 'consent estops a party from, denying the regularity of a motion, or the jurisdiction of the cowt to hear it —power of the court to reconsider a decision during the cwcuit at which it was made.</p> <p>Upon this case being brought on foi' trial before a jury, the court, upon the motion of the.counsel for the defendant Hefferan, dismissed the complaint as to him upon the ground that it did not state facts sufficient to constitute a cause of action, to which the plaintiff’s counsel excepted. At the same circuit the plaintiff moved upon this exception to vacate and set aside the order and for a new trial. The motion was adjourned by consent to a later day, when it was brought on for argument before the trial judge, the counsel for the defendant Hefferan consenting that the motion be made upon the minutes of the justice before whom the trial was had, and waiving all questions as to the regularity thereof and as to the right of the' plaintiff to make the motion. The comt vacated the former order and directed a new trial, costs to abide event.</p> <p>Held, that even if a motion for a new trial could only he made upon the minutes of the justice where a verdict has been actually rendered (Code of Civil Pro., § 999), yet in this case the defendant had by his appearance and consent waived all right to question the jurisdiction of the court or the regularity of the plaintiff’s practice, and that an appeal taken by him from the order should be dismissed.</p> <p>It seems, that the court might, of its own motion, have directed a reargument of • the motion to dismiss the complaint at any time during the same circuit.</p>

<p>Policy of fire insurance —proper construction of a, representation by the assured as to the finish of ahouse — when the policy is avoided by a false representation — a judgment only concludes the parties as to the issues actually decided.</p> <p>This action was brought upon a policy of reinsurance issued by the defendant. The St. Paul Fire and Marine Insurance Company, upon uroperty described in a written application, signed by the agent of The Paterson Fire Insurance Company, the plaintiif’s company, as a “ story and half-story hard finished frame boarding-house building.” The building was not in fact hard finished — that is, finished with lath and plaster — throughout, the first story only being so finished while the upper story was cloth finished; that is, finished with muslin tightly stretched and covered with paper. The policy provided “ that any false representations by the assured of the condition, situation or occupancy of the properly, or any omission to make known every fact material to the risk, or an over valuation, or any misrepresentation whatever, either in a written application or otherwise,” should render the insurance void.</p> <p>Held, that the application represented that the whole house was hard finished, and that as this was false the policy was void. (Davis, P. J., dissenting.)</p> <p>After the fire occurred the agents of the Paterson Company declined to pay the loss to the party whom it had insured, upon the ground that the insured had made the said representation as to the character of the house, verbally, at the time the original policy was issued. In an action brought against the Paterson Company, which, acting in concert with the agents of the St. Paul Company, defended it upon that ground, the Paterson Company was defeated:</p> <p>.Held, that the fact that the St. Paul Company took part in the defense of the former action brought against the Paterson Company did not prevent it from defending the present one; that in the first action the question was whether or not such a representation had been made, while in this one the making of the representation was conceded and the question was as to its construction and the effect of its falsity upon the validity of the policy.</p>

<p>Evidence — what testimony of a pa/rty is inadmissible' as relating to a personal transaction with a deceased person— Oode of Civil Procedure, sec. 829.</p> <p>This action was brought by the plaintiff to recover the proceeds of bonds which were alleged to have been placed by her in the hands of the defendants’ testator for safe keeping, and which had been subsequently sold by him. Plaintiff testified that she had $12,000 in bonds in her trunk on or before March 25,1865; that on the morning of that day five $100 bonds were stolen; that the testator came to her room after the discovery of the theft; that he came again with a detective; that the detective after, examining the room said to the testator that the theft had not been committed by a professional thief, that if it had been he would have takeri all the bonds.</p> <p>The plaintiff was then allowed, against the defendants’ objection and exception, to answer the following question: “ What did Price (defendants’ testator) say to Bennett (the detective) in your presence.” Her answer to which was: “No, of course, if it had been they would have taken all of them, whereas here is the balance of $12,000 in my pocket. He took them out of his pocket and exhibited — took them from the envelope they were in. But, he said, they won’t get any more, because I am going to put them into a bank for her, meaning me.” She testified that she spoke more than once during the conversation, but that she said nothing while the remarks as to which she had testified were being, made. Eeld, that the testimony was inadmissible under, section 829 of the Oode of Civil Procedure.</p>

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

<p>Action to foreclose a mortgage — the validity of liens prior to the mortgage cannot he contested — right of the mortgagee to he subrogated to the place of a prior mortgagee whose mortgage has been paid, — power of the cowrt oven• the relief to he granted.</p> <p>In this action, brought to foreclose a mortgage, it appeared from the complaint and answers that the premises in controversy were .owned, in 1803, by one Thomas A. Hall, who, at that time, to secure a portion of the purchase-money thereof gave a mortgage for $6,000 to his grantor, Chamberlain. In 1864 Mrs. Clute recovered a judgment against him by the name of Thomas Hall, which was on February 4,1865, docketed against him by that name. October 3, 1867, an • execution was issued upon the judgment under which the premises were sold to Mrs. Clute, to whom a deed was delivered by the sheriff on February 17, 1869.</p> <p>June 19, 1866, Hall conveyed the premises to Jane B. Hyde, who assumed the payment of the Chamberlain mortgage, and subsequently paid it partly with her own money and in part with $5,500 borrowed from the Pearsalls, secured by a mortgage upon the premises given to them by her. Subsequently the land was conveyed to one Cottrell, subject to the Pearsalls’ mortgage, which'ho assumed and subsequently paid with money procured from the plaintiff, to whom he gave a new mortgage for $6,000. At the time the mortgages were given and the conveyances made, searches were made in 'the proper offices, but owing to the omissidn of the middle letter of Hall's name the judgment against him Was not found, nor did any of the parties have notice of its existence.</p> <p>Held, that although in this action, brought to foreclose the plaintiff’s mortgage, Mrs. Clute’s title could not be attacked or defeated, nor its priority contested, yet as the facts alleged showed that the plaintiff was equitably entitled to priority in the collection of her debt over Mrs. Clute, and to revive and enforce the, original mortgage, and as issues of fact had been joined by the service of answers, the court might properly try the action as an equitable one brought for that purpose and permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues.</p>

<p>Will — gift to am, unincorporated association void — unlawful suspension of the vesting of the absolute title to personal property — right of one, nota party to am, action,, to avail himself of a decision made therein in his favoi\</p> <p>Due Fanshaw died February 20, 1860, leaving a will by which he directed his-executors to sell so much of his real estate as would be sufficient when invested in bonds and mortgages to produce an income of $1,500 a year, which was to be paid to his widow during her lifetime. He also devised to her the use and profits of certain other real estate. Upon her death the rest of this real estate was to be sold, and the fund in the hands of the executors, after deducting certain payments, was to be divided into eight equal parts. After disposing of certain of these portions the will proceeded: “ One other portion I give to the American and Foreign Christian Union;” and then in similar language the testator gave one portion to the New York Tract Society and two “ to the First Deformed Low Dutch Church that may be built after the year 1856, between the Fifth avenue and the East river and Seventy-ninth and Ninety-fifth streets.” At the time of .the testator’s death none of the aforesaid legatees-were incorporated, though all subsequently and prior to the death of the widow became so, and within that time the church described in the will was built within the prescribed districts.</p> <p>Held, that by the terms of the will the legacies given to the said societies vested, if at all, upon the death of the testator.</p> <p>That as the said societies were then unincorporated the legacies were void.</p> <p>That the gift to the church could not be sustained as there was no time specified within, which it should be built, and it therefore unlawfully suspended the vesting of the absolute title to the property.</p> <p>A portion of the interest of a legacy of $9,000, and the principal thereof after the death of three persons named in the will, was given to the Woman’s Hospital in the city of New Ypik. In an action, brought by the executor in 1862, the validity of this legacy was questioned' and affirmed by the court. The hospital was not a party to that action.</p> <p>JMd, that this did not prevent it from availing itself of the former decision in its favor, and that the validity of the legacy could not be again disputed by the executor.</p>

<p>Undertaking on appeal — when the guaranty of a corporation will he accepted in the place of sureties —1881, chap. 486 — Code of 0ml Procedure, secs. 1834, 812.</p> <p>Chapter 486 of 1881, impowering any surrogate, judge, sheriff, district attorney or other officer, having authority, or required to approve of the sufficiency of any bond or undertaking, to accept, in his discretion, a bond and undertaking, and approve the same, whenever its conditions are guaranteed by a company duly organized or authorized to do business under the laws of this State, and guaranty the fidelity of persons holding positions of public or private trust, and vesting such corporation with fúll power to guaranty such bonds and undertaking — authorizes such a corporation, to sign, in place of sureties on undertakings given upon an appeal from a judgment to the ('ourt of Appeals, and to guaranty the performance of the covenants and conditions thereof.</p> <p>This act so far modifies section 1334 of the Code of Civil Procedure, requiring two sureties to such an undertaking, as to dispense with them when a guaranty of this description is given.</p> <p>When such a guaranty is given, the respondent should be allowed to examine the officers of the company as to its ability to enter into and make it.</p>

<p>Appeal from an order made at a Special Term denying a motion for an injunction.</p>

<p>Sunday laws — when the validity of a sale of meat, on Sunday, cannot he disputed ■ hy the purchaser — undertalcing upon arrest — the plaintiff may sign it with the sureties — Code of Qimil Procedure, see. 559.</p> <p>In an action brought to recover damages sustained by the plaintiff because of his having been induced to sell meat to the defendant by reason of fraudulent representations made by the latter, an order for the arrest of the defendant was made.</p> <p>Held, that the fact that beef was sold on Sunday presented no reason for vacating the order.</p> <p>That the fact that the plaintiff had received and still held a worthless check of the defendant was no answer to the action, as the check could be surrendered on the trial.</p> <p>Where an undertaking, given upon procuring an order of arrest, is duly signed by two sureties, as required by section 559 of the Code of Civil Procedure, it is not invalidated by the fact that the plaintiff himself also subscribed it.</p>

<p>Appeal from an order directing an assessment to be reduced to tbe extent of $539.34.</p>

Appeal by Francis Grey, as administrator of tbe estate of William Tyner, from an order affirming the report of a referee rejecting a claim made for the payment of a policy of life insurance issued ;by the defendant.

The action was brought against the defendant to recover the value of work, labor and materials performed for, and supplied to, the estate of which the defendant was trustee, and for money paid out upon the accounts of other persons alleged to have been employed by the plaintiffs for similar purposes, with the authority of the defendant.

Also an appeal from an order, made by the Erie Special Term on the 24th of October, 1882, confirming the report of said commissioners. This proceeding was instituted by the New York, Lackawanna and Western Railroad Company to acquire title to certain lands in the city of Buffalo, of which Solomon Scheu was the owner in fee.

der granted by a justice of this-court in the first judicial district, on notice, in an action in favor of Charles F. Woerishoffer against the presem defendant. The defendant is a foreign corporation, created under the laws of New Jersey, doing business in this State, and having a business and fiscal agency in the city of New York.

. The injunction order was granted ex pa/rte upon a verified complaint, and an affidavit on the part of the plaintiff supporting the material averments thereof. Upon the dissolution of the injunction at Special Term the following opinion was delivered by Rumsey, J.:

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

<p>Appeal from a judgment of nonsuit, ordered at tbe Erie Circuit.</p>

<p>Appeal from an order of the J efferson County Court denying the plaintiff a new trial in. that court and striking the cause from-the calendar.</p>

<p>Appeal from a judgment of the Cattaraugus County Court reversing a justice’s judgment.</p>

<p>Contribution — an obligor may bing an action in equity to compel contributions from co-obligors — when the request of co-obligors to malee the payment need not be proved — release of one co-obligor does not release 'the others — if the action brought is an equitable one the tenyea/r statute of limitations applies.</p> <p>The plaintiffs’ intestate with five others purchased certain real estate and gave to their grantor their joint and several bond, together with a mortgage on. the said premises, to secure a portion of the purchase-price. In 1872,1878 and 1874 the plaintiffs’ intestate paid installments falling due upon the obligations and taxes and interest. January 8,1876, the premises were sold upon the foreclosure of the said mortgage and were purchased hy the plaintiffs’ intestate. This action was commenced in October, 1881, to compel all the other obligors, except one who had been released hy the deceased, to contribute their proportionate share of the amount which the deceased had been compelled to pay.</p> <p>Held, that although the liability of each defendant might have been enforced in a separate action at law, yet that the plaintiffs might, for the purpose of preventing a multiplicity qf actions, join all the co-obligors in a single action in equity.</p> <p>That it was not necessary for the plaintiffs to show that their intestate paid at the express request of the co-ohligors, or of either of them.</p> <p>That as the obligation to contribute was several in its nature the release of one of the obligors by the deceased did not release the others.</p> <p>That even if the plaintiffs’ intestate by the purchase of the property at the foreclosure sale became, as to it, a trustee for his co-ohligors, this fact furnished no defense to this action brought to compel contribution as to payments made by him prior to the time of such purchase.</p> <p>That as it was proper for the plaintiffs to bring an action in equity instead of at law, the ten and not the six years’ limitation applied, and that they were entitled to recover for payments made more than six years prior to the commencement of the action.</p>

<p>Appeal from an order of the Niagara County Court, made December 28, 1883, adjudging and determining a new assessment to be necessary for tbe payment of all obligations incurred in the above entitled proceeding.</p>

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

<p>.Bond conditioned for the appearance of the obligee at the next term of the court — it is not broken by his failure to appear at any subsequent time other than the term specified, although the prior term be adjowned to such time. ' •</p> <p>"The defendant Swales as principal, and others as sureties, gave a bond in bastardy proceedings dated June 27, 1878, conditioned that he would appear at the next Court of General Sessions to be held in the county of Monroe and not depart the said court without leave. Lhe first term after that date commenced September ninth; the next commenced on November eleventh and continued until January twenty-fifth. It appeared that the September term of the court was adjourned to the day on which the November term was appointed to be held. It was claimed that defendant having failed to appear on January twenty-fifth the bond was forfeited. After the commencement of the term held in November, the defendant appeared and an appeal taken by him from the order of the justice was heard, and after being modified was affirmed.</p> <p>;In this action, brought upon the bond upon the ground that the defendant having appeared at the term of the court held in November, had departed the said court without leave:</p> <p>.Held, that the bond only required the defendant to attend at the next term, that is, the term held in September, and that the court then held could not by adjourning to the day on which the November term was commenced, extend the obligations Of the parties to the bond, or make them liable for a failure of •the defendant to appear, or. not to depart the said court without leave during such adjourned term.</p>

<p>Appeal from an order of the Monroe County Court, denying the plaintiff’s motion for a new trial, made on the minutes of the justice before whom the action was tried. The jury rendered a verdict in favor of, the defendant.</p>

<p>Motion for a new trial on exceptions, ordered to be beard in tbe first instance at tbe General Term after a nonsuit directed at tbe Ontario circuit.</p>

Motion by the plaintiff for a new trial, on exceptions ordered to-be heard in the first instance at the G-eneral Term, after a dismissal of the plaintiff’s complaint at the circuit. The defendant Allen was county treasurer of Seneca county and gave his bond, with the other defendants as securities, to faithfully account for all money which should come to his hands as such county treasurer.

The action was brought to recover money alleged to have been loaned by the plaintiffs intestate, on the 6th day of June, 1874, to the defendant’s testator, in the city of Oswego.

<p>Taking of land for railroad purposes — an oi'der of the Special Term setting aside the repo'i't of commissioners is renewable at the General Term — evidence — a witness cannot testify as to ‘‘his impression ” of What was said,.</p> <p>Under chapter 270 of 1854 an appeal lies to the General Term from an order of the Special Term, setting aside an award of commissioners appointed to appraise the damages occasioned hy the taking of land for the purposes of a railroad, the order so appealed from having been made upon an appeal taken to the Special Term from the pro foi'ma order of confirmation.</p> <p>Upon the hearing before the commissioners a witness was called by the company to prove admissions made by the owner as to the value of his property. The witness after stating that he was not certain in his own mind as to just what was said was allowed, against the defendants’ objections and exceptions, to-state “his impression” as to the amount stated.</p> <p>Held, that this was error.</p>

Appeal by Isaac Budlong, special administrator, and Isaac Bud-long, Scbuyler Budlong and Levi S. Budlong, as executors, from two orders, one granted by tbe Surrogate’s Court of Monroe county, December 31, 1883, allowing tbe special guardian for minor contestants tbe sum of $1,000 for compensation, fees and disbursements ■as sucb special guardian, and directing tbe special administrator to pay tbe same out of tbe assets of tbe decedent, and tbe other granted January 25, 1884,…

' ■ Tbe complaint is duly verified and alleges tbat the defendant .owns and keeps a bawdy-house, which is used as a resort for lewd men and women for lewd purposes, and a disorderly bouse and a. nuisance, on Exchange street, in tbe city of Rochester, in tbe vicinity of three dwelling bouses owned by tbe plaintiff, and praystbat tbe defendant may be enjoined and restrained from permitting tbe bouse to be used .as a nuisance.

The action was for tbe conversion of one steer, and the damages were assessed in tbe plaintiffs’ favor at forty-three dollars and seventy-five cents.

In pursuance of the provisions of chapter 811 of the Laws of 1868, and chapter 241 of the Laws- of 1869, the defendants were appointed railroad commissioners for the town of Ontario, and in 187 i d; cided to issue bonds in the name of the town to aid in the construction of the Lake Ontario Shore Railroad.

At the time of his death, the decedent was a member in good standing of the defendant corporation, a beneficiary association organized under and in pursuance of chapter 496 of the Laws of 1879.

Appeal by tbe landowners from an order of tbe Erie Special Term, confirming tbe report of the referee herein and appointing commissioners to appraise the property.

During tbe years 1881, 1882.and 1883, the appellant owned and occupied' a farm of 221 acres, situated in tbe towns of Wilson and Porter, in tbe county of Niagara, and resided on that portion of the-farm lying in tbe latter town. Tbe town line intersected tbe farm so that 161 acres of it were in the town of Wilson and sixty acres in the town of Porter.

The complaint charged that the plaintiffs recovered a judgment against the defendants Holland; that an execution thereon had been issued and returned unsatisfied ; that Melinda H. Butterfield died, leaving her last will and testament whereby she bequeathed to each of the defendants Holland four thousand dollars, and appointed the defendant Butterfield to be executor thereof ; that Butterfield had offered it for probate; that the plaintiffs believe and charge that the…

Appeal by tbe landowners from tbe order of tbe Oswego Special Term denying a motion to correct tbe printed case. Hpon tbe hearing before tbe commissioners, a stenographer was employed to take minutes, and bis report of tbe testimony and proceedings was attached to the report of tbe commissioners as being tbe minutes of the, testimony taken by them.

<p>Commissioners of highways — right to home obstructions summa/rUy removed.</p> <p>Where a building stands in whole or in part upon a public highway and obstructs the travel of the public thereon, the commissioners of highways have power to cause its summary removal, even although there is still room enough left on the highway to enable the public to drive past the buildings with teams without inconvenience or danger.</p>

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbe issues herein by a jury.</p>

<p>Penalty — when a sum stipulated to he paid in case of a hr each, of the contract is to he treated as a penalty and not as liquidated damages.</p> <p>A written contract for the exchange of lands, after setting forth the terms of the exchange, contained the following clause: “ Either party failing to comply with this agreement shall forfeit to the other the sum of one thousand dollars.”</p> <p>Held, that the sum named was a penalty and not liquidated damages, and that a party seeking to recover for a breach of the contract should be confined to the damages proved to have been actually sustained thereby.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

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

Appeals from an order, made at a Special Term, overruling as frivolous a demurrer interposed by tbe defendant in eacb of the above entitled actions, and directing a judgment to be entered in favor of the plaintiffs.

<p>Will— construction of a legacy — when it should be paid to the legatee, although her " interest is not an absolute one.</p> <p>The will oí a testator contained the following provision: “ I give and bequeath to my daughter Elizabeth ,1. Mead the sum of twenty-five thousand dollars, and do order and direct that eight thousand dollars of said sum be paid over to her son Theodore D. Mead when he shall arrive at the age of twenty-one years, * * * but in case my said grandson Theodore D. Mead shall die before arriving at the age of twenty-one, without leaving lawful heirs him surviving, I then give and bequeath the said eight thousand dollars, which I have hereinbefore directed to be paid unto the said Theodore D. Mead, to his surviving brothers and sisters in equal proportions on the death of the said Elizabeth J. Mead.” The executor paid over the $35,000 to the daughter. The son, upon coming of age, and during the lifetime of the mother, sought to compel the executor to account for the $8,000, upon the ground that under the will he should have held that amount during the son’s minority and paid it to him when he came of age:</p> <p>Meld. that it was the duty of the executor to pay the $35,000 to the daughter, and that upon so doing he was discharged from all further liability therefor.</p>

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

order made by tbe county judge of Orange county on tbe 22d day of March, 1881, in proceedings supplementary to execution in tbe above entitled action. On tbe 16th day of February, 1881, tbe plaintiff procured au order for the examination of tbe defendant in such proceedings, which was duly served upon him in Orange county, in this State, on that day.

Appeals from an order in each of the above entitled actions, denying a motion to retax costs by disallowing an item of thirty dollars for trial fee, and subsequent disbursements as allowed by the clerk in each action. The two actions were brought against the defendants, as commissioners of highways of the town of Pelham, to recover for injuries resulting from their neglect to repair the Boston turnpike where it had been washed out.

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

<p>Appeal from a decree of the surrogate of Westchester county revoking letters testamentary.</p>

Appeal by a purchaser at a partition sale, from an order requiring him to complete his purchase.

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

<p>Evidence — testimony as to a ymsonal transaction with a deceased yerrson— Code of Oml Procedure, sec. 829.</p> <p>This action was brought by the second indorser of a promissory] note, who had paid a judgment recovered, against the administrator of the maker and the two indorsers, by the bank by which the note had been discounted. Upon the trial the first indorser was sworn in his own behalf and testified that he was an accommodation indorser.</p> <p>Held, that this was an examination as to a personal transaction with the deceased, within the meaning of section 829 of the Code of tiivil Procedure, and justified the court in allowing the plaintiff to testify that he also was an accommodation indorser and that he had paid to the maker the money received upon the discount of the note.</p>

The plaintiff worked in defendant’s factory at a steam-power punching machine, and on June 30,1882, the punch came down on his hand injuring his four fingers so badly that their complete amputation was necessary. He was then fifteen years of age, and he claimed in this suit that his employment was dangerous and that the machine was out of order at the time, to the defendant’s knowledge. The jury found these facts in his favor and awarded him $5,000 damages.

arty to the action. In 1872 Stephen S. Marshall, the plaintiff, made to Miss Mary Sherwood an assignment, absolute upon its face, of a mortgage of $450; Marshall retained in his possession the said assignment, and did not record the same until 1875. In 1874 Marshall commenced, in his-own name, an action for the foreclosure of said mortgage, neither mating Miss Sherwood a party nor giving her notice of the action.

Three demurrers were interposed, each upon the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that several causes of action had been improperly united in the complaint. Two of the defendants joined in one demurrer, the other two, Mary A. Tugwell and Robert H. Tugwell, demurred separately.

The action was brought by a judgment creditor of one Austin D. Moore, Jr., against the executors of his father’s will, to reach a fund in their hands which was alleged to have accumulated under an illegal direction therefor, contained in the will of his said father. During the pendency of the action the plaintiff and Austin D. Moore, Jr., died, and their representatives were substituted in their place.

Appeal by the defendant, The American Home Missionary Society, from so much of the judgment, entered in this action in Orange county on February 5, 1884, as provides “ that tbe defendant, Tbe American Home Missionary Society, is incapable of taking the legacy bequeathed to it by the will of Gilbert G. Waterbury, deceased, and that the legacy to it therefore fails and goes to the-next of kin of the said testator, who were living at the time of his death, and to the personal…

<p>Husband and wife — right of the husband to lapsed legacies gimen by the wild of his wife, of which Tie is tTie executor.</p> <p>'The defendant’s wife died in November, 1882, leaving a will upon which letters testamentary were subsequently issued to the defendant. Her heirs-at-law were a sister and nephews and nieces. She devised to her husband the only piece of real estate she owned, and her household furniture and effects, together with one-half of all the remainder of her estate. The other half of the remainder of her estate she gave and bequeathed to her brother Wright Robins and to her sister, to be equally divided between them. The brother Wright Robins, died during the lifetime of the testatrix.</p> <p>Held, that his legacy lapsed and that the husband was entitled to receive and hold it, by virtue of his common-law rights, to the exclusion of the next of kin of the testatrix:</p> <p>That his right so t© do was not affected by the fact that letters testamentary had been issued to him upon her .will, or that he took certain property under its provisions.</p> <p>Pry v. Smith (10 Abb. N C., 224) followed.</p> <p>Nor was it affected by the repeal, by chapter 782 of 1867, of section SO of 2 Revised Statutes, 75, which provided that if letters of administration should be granted on the estate of a married woman to any other person than her husband, such administrator should account for and pay over the assets remaining in his hands, after the payment of debts, to such husband or his personal representatives; the effect of the repeal was merely to leave the common law in force.</p>

<p>Removal of a “regular-clerR’ in New York— Sec. 48 of chap. 410 of 1882 — requisites of the ahcvrge assigned — what opportunity for explanation must he afforded.</p> <p>The Board of Commissioners of the Department of Docks served upon a regular clerk of the department a copy of a resolution adopted by them, which stated that the board deemed “ him incompetent for the proper and creditable performance of the duties assigned to and required of him;” and notified him to appear before the board at a specified time and place and “ show causb and make such explanation as he may desire as to why he should not be removed ” - from his position as clerk.</p> <p>Held,, that the notice did not assign any “ cause ” which would justify the removal of the relatorAmder the provisions of section 48 of chapter 410 of 1882.</p> <p>That the statute contemplated that the cause assigned should be some dereliction or general neglect of duty, or incapacity to perform duties, or some delinquency affecting his general character and his fitness for office; that it should be personal to himself and imply an unfitness for the place.</p> <p>That even if the cause assigned in this case were treated as a, general charge of incompetency, it was insufficient as it was not accompanied with any specification or suggestion as to the nature of the incompetency, or whether it was of a mental, physical or moral nature.</p> <p>While the clerk was on his way to appear at the time and place named in the notice he was suddenly and violently attacked by an illness which required a painful surgical operation, occupying a period of two hours, and so prostrated him that it would have endangered his life to appear before the board. When so attacked he wrote a letter to the board informing it of his illness and inability to attend. The board met and, after receiving this letter, upon the non-appearance of the clerk, passed a resolution removing him.from his office.</p> <p>Held, that the board did not allow him “an opportunity for explanation” within the meaning of the act.</p> <p>That even if the board had jurisdiction to act, and if its action was not wholly void, yet that this court had power, if it saw that the clerk had been deprived of some right which the statute intended he should enjoy, to correct the error and reverse the proceedings.</p>

Writ of oertiobabi to review a decision of the respondents as commissioners, appointed in and by chapter 550 of the Laws of 1880, denying an application of the relator for a modification or reduction of an assessment imposed upon petitioner’s lands for .laying a “ sewer in Third avenue, between Ninety-third and One Hundred and Seventh street,” which assessment was confirmed January 3,1873.

<p>Purchaser at a judicial sale will not be compelled to accept a doubtful title — a purchase, by a special gumdian, of the ward’s land is presumptively fraudulent.</p> <p>One Martin was authorized by the court to convey, as special guardian of his infant children, certain real estate inherited by them from their mother for not less than $8,000, the proceeds to be invested in government bonds or bonds and mortgages. ^The record shows that he conveyed the premises as special guardian for the nominal consideration of $8,000 to one Mather, who by a deed bearing the same date, for the consideration of $100, reconveyed the premises to Martin, who thereafter conveyed the same to one Hoover. Hoover subsequently executed a mortgage thereon to an insurance company under the foreclosure of which the premises were sold to the insurance company. The children of Martin were not made parties to the action brought to foreclose this mortgage.</p> <p>Held, that a purchaser at auction from the receiver of the insurance company was justified in refusing to complete his purchase.</p> <p>That the transaction was fraudulent on its face, and that the purchaser could not be compelled to assume the burden of proving by extrinsic evidence such facts as would prevent a recovery by the Martin heirs in any action that might be brought by them.</p>

<p>City of New York — power of the hoard of estimate and apportionment to transfer unexpended balances of appropriations —1882, chap. 410— The commissioners of accounts home no power to appoint clerics.</p> <p>The estimate of appropriations for tlie city of New York, for the year 1884, contained. no appropriation for the hire of clerks for the commissioners of accounts, an appropriation therefor having been stricken from the provisional estimate. February 9,1884, a resolution was adopted by tbe board of estimate and apportionment, by a majority vote and against tbe vote of one member, transferring unexpended balances of appropriations for cleansing markets in 1873,1875 and 1876, and for contingencies in tbe comptroller’s office in 1874, 1875 and 1876, to tbe appropriation for tbe commissioners of accounts “for clerk hire and contingencies.”</p> <p>Held, that tbe board bad no power to direct such transfer to be made, and that an order restraining tbe transfer was properly granted.</p> <p>Sections 47 and 207 of tbe Consolidation Act (chap. 410 of 1882) regulating tbe expenditures of tbe various departments and authorizing tbe transfer of appropriations to “such other purposes or objects for which tbe appropriations are insufficient, or such as may require tbe same,” were intended to help out deficiencies in appropriations already made, and not to empower the board to make at its will and pleasure new or additional appropriations, and least of all to restore rejected ones, by tbe process of transferring unexpended balances.</p> <p>It was tbe intention of the said section (207) to provide for tbe disposition of tbe unexpended balances, annually, by transferring them to deficient appropriations, or applying them in diminution of tbe appropriations for tbe like purposes for tbe next year, or transferring them to tbe general fund of tbe city for tbe reduction of taxation. »</p> <p>Tbe commissioners of accounts have no power to appoint subordinates or clerks to be paid for out of tbe city treasury, and no authority exists in tbe city or any of its departments or boards to appropriate or pay any money for such services.</p>

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

<p>Appeal from an order of the Special Term authorizing and directing the respondent to place upon the hotel of the appellants certain fire escapes, as specially directed in the order.</p>

<p>Appeal from a judgment, entered upon tbe trial of tbis action at a Special Term.</p>

<p>Appeal from an order made at Special Term, overruling exceptions to tbe report of a referee and' confirming sucb report.</p>

The judgment was affirmed in May 1884, the opinion of Davis P. J. being reported supra (p. 34). The action was brought by the plaintiff, Louise Berney, as the widow, and by the other plaintiffs as the residuary legatees of Robert Berney, to recover damages for the unlawful conversion by the defendants of personal property alleged to belong to the plaintiffs.

F. Beekman to the Merchants’ Life Insurance Company. The mortgage and the bond to which it was collateral were on July 24, 1872, assigned by the Merchants’ Life Insurance Company to the Superintendent of the Insurance Department.' This mortgage covered and included in its description land which had been formerly a part of the Bloomingdale road, although this land was not included in the description of the land conveyed to the mortgagors, such description running the line…

<p>Appeal from a judgment against the defendant for the sum of $9,008.08, entered upon a decision at Special Term.</p>

The appeal was decided in May, 1884, the opinion of Davis, P. J., being reported ante (p. 16). The action was brought to recover dowqr in the real estate of the defendants’ testator. The General Term reversed the judgment entered in favor of the defendants, and directed a judgment to be entered in favor of the plaintiff, with costs.

<p>Foreign judgment — when a decree recovered infot'eign liquidation proceedings cannot , be enforced, here against a resident of this State — what must be shown to sustain an action upon a foreign judgment.</p> <p>This action was brought by the liquidators of a Scotch bank against the defendant, a resident of this State, to recover the amount of a call, upon the shares of stock of the said hank which were owned by him, imposed by a judgment or decree of the Court of Sessions or Lord Ordinary of Scotland. The call was imposed under the provisions of an English statute providing for the incorporation, regulation and winding up of trading corporations. It authorized the Court of Sessions in Scotland during session, and the Lord Ordinary on the hills during vacation, on production by the liquidators of such a company of a list, certified by them, of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due and the date thereof, to pronounce forthwith a decree against such contributories for payment of the sums so certified to be due by each of them respectively, with interest from the said date till payment, in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of six days, of a legal obligation to pay such calls and interest. At the time the decree was made the defendant was, and ever since has been, a resident of this State.</p> <p>Held, that inasmuch as the mode provided by the act of Great Britain for ascertaining the liability of the defendant was summary in its character, in derogation of the common law and in the nature of proceedings in bankruptcy, it had no extra territorial force either by virtue of its own inherent elements or of any provision contained in the act itself creating a personal responsibility which could be enforced in the manner adopted in this action.</p> <p>That this action could not be maintained upon the said decree.</p> <p>It semns, that the judgment of a foreign country is not conclusive upon the courts of this State, even although the party charged appeared, unless upon a proper examination it is established that the cause of action is one recognized by the common law, and that the judgment sought to be enforced was recovered in an action in which a trial was had in accordance with the rules of the common law, which impose the obligation to produce witnesses to establish the claim and secure the right of the defendant to cross-examination, and indeed all the incidents which govern the investigation of the validity of claims according to the rules mentioned. (Per Brady, J.)</p>

<p>JMdence — proofs of death furnished to an insurance company a/re admissible in its fa/oor upon the trial of an action upon the policy — when the parties claiming under the policy must prove the cause of death.</p> <p>A policy of insurance issued by the defendant upon the life of one Edler provided, among other things, that the self-destruction of the person, whether voluntary or involuntary, and whether he were sane or insane at the time, was a risk not assumed by the company, but that in such a case it would pay the net reserve upon the policy held by the company at the beginning of the year. Upon the •cross-examination of one of tlie plaintiffs’ witnesses, in an action to recover the amount of the policy, the defendant put in evidence the proofs of death furnished by the plaintifEs. Attached to and forming a part of the proofs of death were a record of a coroner’s inquest on the body of the insured, and the testimony of two physicians showing that his death was caused by cyanide of potassium taken by him, together with the verdict of the coroner’s jury, which was that the deceased came to his death by suicide by taking cyanide of potassium.</p> <p>Held, that as the proofs of death had been furnished by the plaintifEs to the company they were admissible as against the plaintifEs upon the trial.</p> <p>That being admitted they established a prima fade case for the defendant and threw upon the plaintiffs the burden of proving, if they could, that the insured had not died by his own act.</p>

<p>Appeal from an order made at a Special Term directing the plaintiff to furnish a bill of particulars.</p>

This action was brought originally against Bernard Reilly as sheriff, and was an action for the claim and delivery of personal prop erty of the value of $1,500, loaded by the plaintiff on the bark Silas Fish, then lying at New Y ork, and bound to Valparaiso, Chili.

<p>Board of excise in New Tork — an employe thereof must apply for a warrant upon the comptroller before he can sue the city — an unreasonable refusal of the boa/rd to give the warrant relieves him from procuring it.</p> <p>Upon the trial of this action, brought to recover a balance of salary claimed to be due to the plaintiff, evidence was given tending to show that the plaintiff had been employed as an inspector by the board of excise commissioners of New York, and had been paid as such up to December 15, 1880; that in December, 1880, he received a notice that he had been suspended, but that considering himself still an inspector he tendered his services nearly every day from December, 1880, to September, 1881, and was ready and willing to perform his duties, but was not allowed to do so; that in September he demanded a voucher or certificate on which he might receive his salary from the comptroller; that in reply to his demand the excise commissioners said that they considered his suspension a dismissal and did not give him the voucher; that he demanded his salary from the comptroller.</p> <p>Held, that in dismissing the complaint, upon the ground that the plaintiff should have procured a mandamus compelling the board of excise to give him a warrant upon the comptroller before suing the city, the cpurt erred.</p> <p>That the question as to whether the refusal of the board of excise to give him a warrant, upon the ground that they considered his suspension was equivalent to a dismissal, was not an unreasonable refusal, should have been submitted to the jury, and that if they found it was unreasonable the plaintiff might maintain his action. (Davts, P. J., dissenting.)</p> <p>Bancker v. Mayor (8 Hun, 409) followed; Bannai v. Mayor (66 N. Y., 585) distinguished.</p>

<p>Negligence — a master is not liable for an injwy to a servant, caused by an accident wising from a risk incidental to his employment.</p> <p>The plaintiff’s intestate was employed by the defendant, an elevated railway company, to signal a contractor who was blasting rocks near a portion of the railroad, and also to signal the defendant’s trains when approaching that point. The intestate was required to climb one of the columns supporting the railway and place himself on the easterly track, and from that place signal the contractor, and the approaching trains. Just after signaling a train going south he discovered a train coming from that direction. To avoid this train he attempted to reach a girder to the north of him by passing between the tracks. Just as he was stepping on the girder he was struck’ by the train, thrown to the ground and killed. The girder was about ten inches wide. It was customary for persons employed upon the tracks to avoid trains by stepping on those girders or by passing themselves down between the ties, through a space about eighteen inches wide, and waiting there for the trains to pass. At some-places platforms had been constructed outside of the tracks upon which a person could stand with safety. The failure of the company to have such a platform at the place of the accident was claimed to be a negligent act, rendering it liable for the loss occasioned by the death of the intestate.'</p> <p>Neld, that the claim was untenable; that the risk of encountering accidents by trains approaching the place where the deceased was employed was assumed' by him when he voluntarily entered upon the discharge of his duties, and that the defendant was not bound to protect him against it.</p> <p>That the complaint was properly dismissed at the circuit.</p>

<p>Appeal from a judgment recovered on 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>Purchaser of real estate — what title he will he compelled to accept — when, a title founded on adverse possession must he accepted.</p> <p>In 1788 certain premises in the city of New York were conveyed by the sheriff to one Beekman, who died in 1789, leaving a will by which he devised them to A. K. Beekman, who died in 1816, leaving a will by which he devised them with other property to his executors to collect the rents, pay debts and divide the real estate not sold into seven equal parts. He authorized them to sell and convey his real estate. No conveyance on the part of the executor was shown. In 1836 an action of partition was commenced between the Beekman heirs to divide the real estate still unsold. No reference was made therein to these premises.</p> <p>In 1831 one Thompson entered into possession of the premises, and continued to-occupy them personally, or by his tenants, to the time of his death in 1870. The premises were assessed to him in 1834, and he thereafter paid taxes thereon. Thompson’s executor collected the rents until 1883, when under a power of sale in Thompson’s will he conveyed the premises to the plaintiffs, who contracted to sell them to the defendant. The defendant refused to complete his purchase upon the ground that the executor’s title was defective.</p> <p>Held, that the title was good and that the defendant should be compelled to accept it.</p>

<p>Husband and wife — right of a judgment creditor of the husband to eólleet a debt due to the husband from the wife. ,</p> <p>In this action, brought by a judgment creditor against tbe debtor and bis wife, to reach property claimed to be applicable to tbe payment of tbe judgment, tbe complaint alleged that tbe wife owed tbe husband f 1,040 for services rendered by him to her under an agreement by which she employed'him to manage and superintend a separate business carried on by her, at a stipulated price per week.</p> <p>Held, that under tbe facts stated, there existed a valid indebtedness owing from tbe wife to tbe husband and that tbe plaintiff could maintain this action.</p>

<p>JSasement — separate conveyances of two buildings homing a common passage-way — when the easement of passage will be extinguished if not expressly reserved — when the mortgagee loses his right to such an easement by releasing the sen'vient tenement from the lien of the mortgage.</p> <p>In 1864 one Spofford owned a building on the north-west corner of Broadway and Morris street, fronting on Broadway, and also a building situated upon the adjoining lot on Morris street, in New York city. A passage, about seven and a-balf feet wide, led from Broadway through the corner building, to and through the west wall thereof and to the Morris street building, and to a third building erected on land belonging to Spofford, being an extension from the rear of the corner building. In tbe Morris street building, immediately in tbe rear of the corner building,' a stairs was maintained giving access to the upper portion of both buildings. The passage from Broadway was used for the common convenience of the three buildings. In 1864 two mortgages had been given upon the property, which were subsequently assigned to the Mutual Life Insurance Company at the instance of Spofford, who owned all the property, subject to them.</p> <p>Thereafter, in 1873, the company, in consideration of $25,000, released by a quit-claim deed the premises on the corner from the lien of the mortgages, describing them as running along the northerly line of Morris street, about fifty-eight feet, to an angle in the wall formed by the division wall between the corner building and the one adjoining on Morris street, and thence along said division wall thirty feet, more or less, to the northerly side of the mortgaged premises. No reference was made in this instrument to the passage, nor was any right to use the same reserved. Subsequently the title to this corner lot became vested in the defendant; no reference to the passage being contained in any of .the conveyances thereof.</p> <p>The mortgages on the remainder of the property were foreclosed and the property" was sold to the insurance company, and by it .was conveyed to the plaintiff. No reference to the passage was made in these conveyances.</p> <p>In an action by the plaintiff to restrain the defendant from obstructing the passage and preventing persons from passing through it to the plaintiff’s building: Meld, that the property released by the insurance company to Spofford extended to *the westerly line, or at all events to the center of -the division wall.</p> <p>That no right to use the passage remained in the company by virtue of its mortgages after it had executed the absolute release to Spofford; that no such right was or could be conveyed by it to the plaintiff, and that this action could not be maintained.</p>

Appeals in. tbis and another action, between the same parties, from orders made at Special Terms denying motions made to vacate attachments.

<p>Settlement of an action — when the failure of the defendant to disclose his pecunia/ry condition mil not vitiate it.</p> <p>The plaintiff recovered a judgment against the defendant and against his partner, one Stueken, in theUnited States Circuit Court for the alleged conversion of three ships belonging in part to the plaintiff. Pending an appeal taken by the defendant to the Supreme Court of the United States he made a general assignment, giving all his other creditors a preference over the plaintiff. Thereafter the plaintiff brought an action to set aside the assignment as fraudulent. Subsequently a settlement was made, the plaintiff receiving some $90,000 in cash and. a note of the defendant for $28,700, and satisfying his judgment for $243,204.42 against the defendant and assigning the one recovered against Stueken. Subsequently the note for $28,700 was surrendered upon the payment by* the defendant of $12,000. It appeared that after the assignment was made the-attorney for the assignee, in preparing his answer to the action brought by the plaintiff to set it aside, discovered that the property assigned was more thansufBcient to pay all the creditors of the defendant, including the plaintiff: that he so informed the defendant and advised him to try and settle the matter • with the plaintiff, as otherwise the plaintiff might collect the amount of his judgment before the appeal could be heard in the Supreme Court, and that in pursuance of that advice the settlement was made.</p> <p>L[eld, that the concealment of the fact of his solvency by the defendant 'in negotiating the settlement with the plaintiff did not authorize the latter to vacate the settlement upon subsequently discovering it, in the absence of proof showing that the defendant had made some misrepresentation as to his pecuniary condition, or that the plaintiff had put some question to him in regard, thereto.</p>

<p>Bequests for findings of fact and conclusions of law — the court must pass upon each of them — it camot reject them as unnecessary — Oode of Owil Procedure, sec. 1038.</p> <p>Where, before the decision of an action on trial before a court without a jury, requests for findings of facts and conclusions of law are submitted to the court, the court ’cannot refuse to find any of them because they are considered to be unnecessary. It must, at or before the time when the decision is rendered, note, in the margin of the statement submitted, the manner in which, each proposition has been disposed of, and either file or return to the attorney submitting it the statement so made.</p>

The plaintiffs, who are importers and dealers in diamonds, in New York, brought this action to recover the possession or the value of certain diamonds alleged to belong to them.

<p>Mortgage, allowing the mortgagee to enterr into possession after a default of twelme ‘months — construction of it — when the mortgage may he foreclosed, at once on a failure to pay the interest.</p> <p>The defendant, a railroad company, executed a mortgage upon its road to the plaintiff, as trustee, to secure the payment of bonds issued by it. The mortgage provided, among other things, that if the company should make default in the payment of the principal moneys secured by the bonds, or any part thereof, “ or in the due and punctual payment of the interest, or any part thereof, from time to time accruing and payable upon such bonds, or any of them, at the time and in the manner provided for payment of such principal or interest; ” and if such default should continue for twelve months, then the trustee might enter into and take possession of the road, and might sell the same upon giving three months’ notice of the time and place of sale. Another provision of the mortgage authorized the company to remain in the possession of the road until some default had been made in the payment of the principal and interest.</p> <p>Meld,, that the provision authorizing the entry and sale by the trustee, upon the expiration of twelve months after the default of the company in paying the principal or interest, did not prevent the trustee from at once bringing an action to foreclose the mortgage, to collect any installment of interest falling due under the terms of the bonds, as soon as default was made in its payment.</p>

<p>Unlawful purchase of stock Iry a corporation — the sale cannot he rescinded without restoration being made of what was'received, under it — wrongful receipt and conversion of corporate property hy an officer — when the right of action against him is hwrred in six years.</p> <p>This action was brought by the receiver of the Mutual Protection Life Assurance Society to compel the defendant to account for certain moneys of that company alleged to have been received by him and to recover the same. In 1871 a plan was devised by the officers of the company and the defendant, by which the company was to acquire the assets and stocks of the Widows and Orphans Benefit Life Insurance Company, and reinsure, the risks of the latter. The. defendant was a trustee and one of the officers of the Widows and Orphans” Company. Thereafter the Mutual Company acquired a majority of the stock of the Widows and Orphans’ Company, paying therefor its par value and accrued interest in gold. At that time the assets of the Widows and Orphans’ Company were not equal to their liabilities and capital stock. Some^fieO.OOO of the money of the Mutual Company was paid to the defendant, who’paid it all out in the purchase of shares of the Widows and Orphans’ Company, which were transferred-to the Mutual Company, except about $1,868.61. He retained $8,592.68 for stock owned by himself, which he so transferred. It also appeared that $25,000 of the money of the Mutual Company was paid to the defendant, who retained' $15,000 for his services and paid $10,000 to the president of the Widows and Orphans’ Company, who lost his place by virtue of the consolidation.</p> <p>Held, that although the purchase of the stock was unlawful, yet as no offer torestore the shares of stock received had been made, and as no such offer could, owing to the change in circumstances, be now made, the purchase could not be-rescinded and a claim made for the purchase-money.</p> <p>That any liability which was imposed upon the defendant by the part he had-taken in the various transactions, and by the receipt and misappropriation of the money of the Mutual Company, could be enforced in an action at law.</p> <p>That such being the case this action was barred by the statute of limitations, because not brought within six years from the time it accrued.</p>

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

Appeal by Jeremiah C. Lamphier, a creditor of the assignor, from, the decree of the county judge of Erie county, discharging the assignee. On the 20th of August, 1879, De Witt O. Hoover made an assignment to George H. Hoover, and one Getz, for the benefit of his creditors. Getz afterwards died and the survivor became sole assignee.

Appeal by tbe plaintiffs from a judgment dismissing tbe complaint, entered on tbe report of a referee. In 1872 tbe defendants Jarvis Lord and William U. R. Lewin entered into a copartnership for tbe pni’pose of carrying on the distillery business, etc., in the firm name of Jarvis Lord & Co., and continued in business until 21st March, 1878, when the firm made a. general assignment to defendant Brackett for tbe benefit of creditors.

<p>Sealed instrument — its terms ca/nnot be altered by a subsequent •verbal agreement— when the terms of a sealed lease cannot be varied by a verbal agreement.</p> <p>On September 5, 1880, a store in Salamanca occupied by tbe defendant was burned. He occupied it by virtue of a lease under seal executed by the plaintiff for a term beginning February 20, 1880, and ending October 5, 1883, at tbe monthly rent of twenty-five dollars. After "tbe fire tbe plaintiff erected a brick building upon tbe lot. While this was being done it was verbally agreed between him and the defendant that after the new building was completed the . rent should be fifty dollars a month instead of twenty-five dollars. The defendant did not surrender the old lease to the plaintiff. The defendant having subsequently refused to pay the fifty dollars per month the plaintiff instituted summary proceedings to recover possession of the land.</p> <p>Seld, that as the lease was under seal, its terms and provisions could not be varied by a subsequent verbal agreement; that the verbal agreement to pay the additional rent could not be enforced and that the plaintiff’s proceedings should be dismissed</p>

<p>Appeal from a judgment of tbe Monroe County Court, affirming judgment in favor of the plaintiff of the Municipal Court of the iity'of Rochester.</p>

<p>Foreign judgment — when valid, although the summons was not personally served — error in the proof of sm'vice of a summons — when immaterial — domicile—how determined.</p> <p>In November, 1881, a judgment by default was entered against the defendant in the Municipal Court of Dane county, Wisconsin. He was at that time domiciled in that State, but was absent therefrom. The summons was not personally served upon him, but was left at his residence in the presence of his wife. This mode of service and the proceedings in the Municipal Court were regular and valid according to the laws of that State.</p> <p>Held, that the judgment was valid, and that an action might be brought thereon against the defendant in this court.</p> <p>The certificate of the officer serving the summons stated that he left it at the house in the presence of the defendant’s daughter, naming hey Upon the tidal of this action it was shown that it was the wife and not the daughter who was present.</p> <p>Held, that the validity of the service of the summons was not thereby affected.</p> <p>Prior to 1881 the defendant resided with his family and kept house in Madison, Wisconsin. In January, 1881, he procured employment in Buffalo, New York, and has since that time been there engaged in work. In May he concluded to bring his family there, but was unable to do so owing to the delicate health of his wife. About November twentieth he removed his family to Buffalo, where they have since resided. On November seventeenth a judgment was entered against him in the Municipal Court of Madison upon a summons not personally served, which was issued November tenth. ,</p> <p>Held, that he was domiciled in Madison at the time the summons was issued and the judgment was entered.</p>

The recovery was had on a policy issued by the defendant, insuring the plaintiff against loss or damage by fire to' the extent of $1,000, on his opera-house block, in Lockport, and the furniture, etc., therein.

Motion by the- defendant for new trial on exceptions taken at tbe Genesee Circuit and ordered to be beard at General Term in tbe first instance. ■ Tbe defendant’s agent at Batavia on tbe 7 th day of March, 1881, made and delivered to E. C. Williams an instrument, tbe material portion of which was as follows: “ New York, Lake Erie and Western Railroad Co., } “Batavia Station, March, 7, 1881. } “Received from E. C. Williams tbe following articles (contents unknown) in apparent…

The action was brought on an instrument made by Hiram Young to the plaintiff in the following form, viz.: “ To P. O. Tower : “ Please pay to Julius A. Parsons the amount that will be my due every Saturday night for manufacturing your cider into vinegar, until he is paid the sum of two hundred and fifty dollars. “ Dated April 1. 18Y8. “ H. YOUNG.” The plaintiff received this paper and presented it to the defendant who indorsed upon it the following, viz.: “Will pay the within…

<p>Appeal from an order of tire Erie Special Term, denying a motion for a new trial made upon a case and exceptions. The plaintiff was nonsuited at the close of his case.</p>

The question involved in this case turned upon the proper construction of a clause contained in a mortgage; which reads as follows: “ This grant is intended as a security for the payment of the sum of fifteen hundred dollars and interest from date as follows: Interest on the whole sum payable annually to Sarah Waterman, mother of 6aid Jasper, during her life, and the sum of six hundred and forty dollars and twelve cents, payable in three years from date, in case of the…

<p>Surrogate Court— right of an administrator to compel the executor of his predecessor, to account— Oode of Oivil Procedure, sec. 2606 — Bight of the legislatu/re to gime a new remedy after the existing one is ba/rred by the statute of limitations.</p> <p>February 6, 1873, Catharine Latz died intestate, and on February thirteenth letters of administration were issued upon her estate to John Latz, under which John Latz drew from a bank the sum of $1,050.51, which was all the personal property she left. He never accounted to the surrogate and died on May 18,1880, leaving a will, letters testamentary upon which were issued to his widow on August 26, 1880. On September 22, 1880, the petitioner in this proceeding was appointed administrator de bonis non of Catharine Latz. On December 14, 188Í, he filed a petition with the surrogate to compel the executrix of John Latz to judicially settle the account of her husband as administrator of Catharine Latz. The application was denied on the ground that it was barred by the statute of limitations.</p> <p>Held, that this was error; that the right to compel such an accounting was conferred upon the petitioner by section 2606 of the Code of Oivil Procedure, and did not exist prior to the passage of that act.</p> <p>That even if the right of the next of kin to compel an accounting and to recover the unadministered assets of the estate of Catharine Latz had been barred by the statute of limitations, the right of the petitioner to compel this accounting would not be lost.</p>

This is a proceeding on the part of the petitioner to acquire land 'situate in tbe city of Buffalo for tbe purpose of tbe erection of trestles and warehouses for the transfer and delivery of freight from and to the petitioner’s railway. Negotiation between tbe parties resulted in a written contract made between tbe company and tbe respondents Bennett, whereby tbe company agreed to purchase, and they to sell tbe premises in question.

The action was brought to recover damages for slanderous words alleged to have been spoken by the wife of the respondent, Charles Quirk Quann. He and his wife were joined as defendants. The plaintiff had a verdict at the Livingston Circuit against both of the defendants.