Volume 42 — New York State Reporter

<p>Arrest—Fraud.</p> <p>A failure to perform an agreement does not raise a presumption that the party intended non-performance at the time he made the agreement.</p>

<p>Dismissal of complaint—Failure to prosecute.</p> <p>An action for separation was not noticed for trial nor placed on the calendar for seven months, younger issues being tried in the meantime. Defendant was in jail during that time, having been surrendered by the sureties on his bond given in ne exeat proceedings. Plaintiff claimed that she had no means to prosecute the action, as defendant had not paid the alimony ordered. Held, that it was discretionary with the court whether to grant a motion to dismiss and to impose such terms as it deemed proper, and that an order directing a dismissal unless plaintiff try the action at the next circuit was proper.</p>

<p>Municipal corporations—Police—Removal.</p> <p>The police commissioners of the city of Albany may take notice of the conviction of a police officer for crime, and treat him thereafter as not a member of the force.</p>

<p>Insurance (Fire)—Waiver oe conditions oe policy.</p> <p>Where the insurer’s agent takes part in the adjustment of a loss with the representatives of other companies, examines the books and determines the amount of loss and damage, the delay in calling for an examination of the assured and his books and for an appraisal by appraisers appointed by the parties warrants the submission to the jury of the question of waiver of those conditions of the policy.</p>

<p>1. Evidence—Judicial notice.</p> <p>The court will take judicial notice of the fact that the city of Buffalo is in Erie county, and of who was the county judge thereof at a specified time.</p> <p>2. Pabent and child—Adoption.</p> <p>The statute in relation to the adoption of children does not require the county judge to witness hy his signature the consent of the parties adopting the child; it is sufficient if the order recites that the parties appeared before him and that they signed the necessary consents.</p>

<p>1. Summary proceedings—Tenant holding over—Answer.</p> <p>An answer in proceedings to remove a tenant as holding over which consists of a general denial and an allegation that a new lease was made and the rent thereunder has been paid, is sufficient to raise an issue.</p> <p>2. Same.</p> <p>A person residing upon the premises, upon whom the precept was served, and who states under oath that she was in possession, may serve a verified answer in such proceeding, even though she be the tenant’s wife, left in possession during her husband’s absence.</p>

<p>1. Negligence—Contbibutoiiy.</p> <p>Plaintiff’s intestate was killed while driving a load of furniture across the tracks of the Brie R. R. Co., by an engine of the other defendant. He was walking by the side of the wagon so that his vision to the east was obstructed by it. As he approached the crossing the gates were up, and the wagon preceding him passed in safety. When he reached the crossing the opposite gate was lowered, but on his side it was up, but was then lowered so as to strike the rear end of his load. The engine which caused the injury approached rapidly from the east without giving the statutory signals. Held, that it could not be said as matter of law that deceased was guilty of contributory, negligence, and that that question was propel ly submitted to the jury.</p> <p>2. Same—Railroads.</p> <p>The evidence showing that the injury was produced by the concurrent negligence of both defendants, the case was properly submitted and the verdict properly rendered as against both.</p>

<p>1. Fraudulent conveyance.</p> <p>In August, 1889, an action was commenced by the plaintiff to set aside fraudulent conveyances by the defendant of real property. The plaintiff succeeded, and a receiver was appointed. In March, 1890, one Clark commenced a similar action, in which she succeeded. In the meantime the defendant and her fraudulent grantees had conveyed their interest to one Maxwell in trust to pay the debts of the defendant and any individual indebtedness of hers which had accrued since. Held, that Maxwell was not entitled to the proceeds of the real estate in the hands of the receiver as against Clark.</p> <p>2. Same—Judgment, when a lien.</p> <p>A judgment against a debtor who has previously made a fraudulent conveyance of premises, remains a lien thereon.</p> <p>8. Same—Effect of appointment of a receiver.</p> <p>Where a judgment creditor in such an action asks a receiver, and the appointment of a receiver of the premises previously appointed is extended over her action, she cannot thereafter proceed to sell the land by execution, and the title of a purchaser from the receiver upon a prior sale is good; but where the surplus moneys in his hands are to stand as real estate, she is entitled to be paid from them.</p> <p>4. Same—Partnership—Individual property. ,</p> <p>A member of a firm may appropriate individual property to pay firm debts, and where a creditor has acquired a lien thereon at law it will be respected in equity.</p>

<p>Executors and administrators—Counterclaim in action by undertaker.</p> <p>Defendant, as sole executrix, employed plaintiff, an undertaker, to take charge of the funeral and burial of her testator. In this action to recover therefor defendant set up as a counterclaim a debt owing by plaintiff to her husband's estate; that by his will he gave all his property to her and appointed her executrix, that she had qualified and taken possession of the estate and owned in her own right the claim against plaintiff. On the trial defendant admitted that no notice to creditors had been ordered or published. Held, that she was entitled to show by common law evidence that all of the debts of testator had been paid, and that fact being established she was entitled to have the sum due her testator allowed as a counterclaim.</p> <p>(Bradley and Parker, JJ., dissent.)</p>

<p>Exceptions ordered to be heard in the first instance at general term.</p>

<p>Appeal from order denying motion to resettle order.</p>

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

<p>Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.</p>

<p>Appeal from judgment rendered by the court after a trial at the special term.</p>

<p>Appeal from judgment in favor of the plaintiff entered upon the decision of a judge at special term.</p>

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

<p>Appeal from a judgment of the special term.</p>

<p>Appeal from a judgment, entered on the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial.</p>

<p>Appeal from a judgment of the special term.</p>