Volume 43 — New York Supreme Court Reports

<p>Appeal from a judgment, entered upon a nonsuit granted at the Steuben Circuit, and from an order of tbe Monroe Special Term denying a motion for a new trial made upon a case and exceptions.</p>

Appeal by the defendant George Everett from a judgment entered upon the decision of the court, on a trial before the court-without a jury, at the Cayuga Circuit.

<p>Appeal from a judgment of the County Court of Niagara county, •affirming the judgment of a justice of the peace in favor of the plaintiff.</p>

<p>Appeal from a judgment of the County Court of Genesee county, reversing a judgment of a Justice’s Court in that county in favor of the defendant.</p>

<p>Appeal from, an order of a County Court denying a new trial — when the County' Court may grant or refuse a new trial, in its discretion — its decision is notreniewdble at General Term.</p> <p>An order of a County Court, denying a motion for a new trial upon the ground' of surprise- and newly discovered evidence, is addressed to the discretion of that court, and is not reviewable upon appeal by the General Term of the Supreme Court.</p> <p>The Supreme Court has no power to review the exercise by the County Court of a discretionary power vested in the latter court.</p>

behalf of the defendants, upon exceptions taken upon the trial, and ordered to be heard in the first instance at the General Term.

This action was brought by the plaintiffs to recover certain •chattels which they alleged belonged to them and which the defendant wrongfully took and detained, the value of the property so •claimed by the plaintiffs amounting to the sum of $852.38, and eonsisting of a considerable number of articles of ready-made clothing. The complaint consisted of but a single count, and the wrongful taking and detention was alleged to have occurred on February 21,. 1882.

<p>Appeal from a judgment, entered upon the decision of tbe court at Special Term dismissing the plaintiffs complaint.</p>

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

•' Motion by tbe plaintiff for a new trial on exceptions taken at tbe Monroe Circuit, and ordered to be beard at General Term in tbe first instance.

The complaint in this action was served on the 2d day of August, 1881. It appears from the opposing affidavits read upon the hearing of the motion that the defendant’s time to answer or demur was extended by stipulation until September 18, 1881, and that the additional time was stipulated to answer or demur only, and for no other purpose. The motion papers herein were served on the 18th day of September, 1881.

In January, 1876, the plaintiff commenced an action in this court against Anna M. O’Dougherty and Patrick O’Dougherty to set aside certain conveyances and to collect certain judgments held by plaintiff. The defendants defended the action, O’Brien being their attorney. Prior to that time O’Brien had performed a large amount of professional services for the O’Doughertys, and had only been paid forty dollars on account of the same.

The bond and mortgage were executed on May 21,1873, together with an affidavit and certificate, by Babet Marx, the mother of plaintiff, to Samuel Joel, a clerk of defendants, and by him assigned to the defendants. Babet Marx died intestate September 22, 1879, owning, in fee, the real estate described in the complaint and mortgage. This action was commenced on September 25, 1879.

In the fall of 1882, Susan E. Colton let a contract to one Shoudy for the construction of a cellar and house on a lot belonging to her, in tbe city of Syracuse. Shoudy engaged Ryan, the claim-ant, to do work and labor, and furnish material in erecting the same, and such work was performed and material was furnished by him in October and November, 1882.

Wigg. The motion was made upon the ground that the recorder of the city of Oswego had no authority or jurisdiction in the premises.

The action was brought in February, 1881, to set aside a bond and mortgage given July 27, 1874, by the plaintiff and his wife to the defendants, upon the ground that the same were obtained by fraud' and duress. Hpon the first trial they were set aside for want of consideration.

The intestate, Edwin Burt Jones, a lad about ten years of age, was killed at Price’s Crossing, while en route for the house of Prichard, in the town of Steuben, to Remsen, upon the 1st day of February, 1882. At the crossing the track of the defendant runs in a northerly and southerly direction. The deceased was riding in a sleigh with his mother, Mary Ann Jones, and George Williams and John Thomas, the latter of whom was the driver, who was also killed at the same time.

Cady, deceased, and also removing him from the position of testamentary trustee under the said last will and testament of Elia» W. Cady. . Elias W. Cady died in the spring of 1883, leaving a last will and testament, executed in 1854, in and by whiqh he devised the homestead property ■ of nearly 200 acres, upon certain conditions to Charles Cady, and naming Charles and his brother Oliver as executors and trustees.

December 9, 1884, Alfred and J. Forman Wilkinson made a general assignment to Charles E. Hubbell for the benefit of creditors, which was recorded December 10, 1884, in the office of the clerk of the county of Onondaga. The assignee accepted the trust and entered upon the discharge of his duties.

Prior to November 6, 1876, John F. Chapman was in possession of thirty acres of land as a tenant, which he had occupied for several years as a nursery. November 6, 1876, the owner of the fee conveyed the land by a warranty deed to Chapman, who on the same day gave the vendor his bond conditioned for the payment of $5,000 (part of the purchase-price) on the 6th of November, 1881, with semi-annual interest, payable on each fourteenth day of April and October thereafter.

Tbe plaintiff and defendant intermarried April 28,1881, but have since separated. On the day of their marriage, and before the ceremony, the defendant drew his cheek on a bank payable to his intended wife for $100, and placed it among, and exhibited it as one of, the gifts to the bride. The check was in the ordinary form and drawn upon a bank in which defendant had sufficient funds to pay it.

May 1, 1869, defendants’ testator conveyed a lot in tbe village of Itbaca, with a covenant of warranty, to Byron A. Todd, wbo, on August 29, 1876, conveyed tbe lot witb a covenant of warranty to tbe plaintiff. In 1881 tbe plaintiff inclosed tbe whole lot, a part of wbicb tbe village of Itbaca claimed bad long been appropriated for a public street.

Appeal by the defendant from a judgment, entered 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* January 19, 1878, some person mailed do defendant’s wife a printed paper recommending and advertising articles for the prevention of conception and for procuring abortions, and stating where the articles could be purchased.

<p>General guardian — Tie may collect and, sue for Ms ward’s share of rent collected from premises owned i/n pcmi by Ms ward — one tenant in common is not liable for the cost of an improvement made by his co-tenant, without his assent.</p> <p>This action was brought by the plaintiff, as general guardian of one Sarah Mahar, to recover one-half of the rent of certain premises owned by the said Sarah and the defendant as tenants in common, the rents of the whole property having been collected and received Dy the defendant.</p> <p>Held, that the plaintiff, as general guardian, was authorized to maintain the action.</p> <p>That the defendant was not entitled to have the cost of improvements, which were made by him without the assent of his co-tenant, allowed in reduction of the amount due from him for the rent collected by him.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on a case and exceptions, and from an order granting a motion to resettle a case.</p> <p>This action was brought to recover for services as a nnrse performed between September 1,1880, and October 19,1881. The complaint contains but a single count, in which it is alleged that the services were reasonably worth ten dollars per week, amounting in the whole to $500, and that defendant agreed to pay said sum. It is admitted in the complaint that $286.44 has been paid. The answer alleges: (10 A general denial. (2.) That defendant is a married woman and living with her husband. (3.) That the services were rendered at the agreed price of five dollars per week, and that plaintiff has been fully paid. The plaintiff had a verdict for $319.06.</p> <p>It appears from an opinion printed in the appeal book, that a motion for a new trial on the judge’s minutes was .made and denied.But it is not shown by the judgment-roll, or the case annexed, that such a motion was made or determined. No order determining such a motion appears..</p> <p>It appears from the notice of appeal, but not from the judgment as printed, that January 26, 1884, a judgment was entered on the verdict. The judgment-roll does not contain the clerks’ minutes of trial, and .it does not appear whether any direction in respect to a ease was made at the circuit.</p> <p>It appears by the case and affidavits annexed, that after the jury-retired defendant’s counsel left the court. Before the adjournment of the court for the day, the jury applied for further instruction. An officer was sent for the defendant’s counsel, but he could not be found, and thereupon, in the absence of defendant’s counsel, the court further instructed the jury. The next morning the jury brought in a sealed verdict. The case, as settled, contained an exception by which the right of the court to further instruct the jury in the absence of counsel was challenged, and the substance of the instruction was also excepted to. Both exceptions were taken after the jury had rendered its verdict. These exceptions were allowed by the trial judge, who settled the case December 20, 1884, and ordered it filed, but did not order it annexed to the judgment-roll. Afterwards, upon the plaintiff’s motion made at a Special Term held by another justice, the exceptions were stricken Out upon the ground that under section 995, Code of Civil Procedure, they could not be taken after the jury had rendered its verdict. After the case was thus resettled, a motion was made on it at Special Term for a new trial, which was denied, and an order entered. The defendant appeals : (1.) Prom the judgment. (2.) Prom the order denying a new trial. (3.) Prom the order striking out the two exceptions.</p>

March 9, 1870, Joel A. Halladay recovered a judgment against Bronson A. Shed and John N. Loehr for $642.42, upon which eighty-three dollars was collected in April, 1870. The remainder of the judgment is unpaid. Two executions have been returned unsatisfied upon the judgment. March 8,1880, the plaintiff in this action was appointed the receiver of the property of Joel A. Halladay, and the title to the judgment then became and has since-remained vested in the receiver.

January 11, 1871, Cornelia H. Burton was the owner in fee of a house and lot in the city of Syracuse, and on that day she mortgaged it to the Syracuse Savings Bank to secure the payment of $1,000. January 21, 1871, the mortgage was duly recorded. July 8, 1876, Mrs. Burton conveyed the premises in fee to Emily Howland by a deed, which recited a consideration of $8,500. December 11, 1876, the deed was duly recorded.

<p>Practice — former adjudication — when a bar — when a joint denwrrer to a defense good as against two of three plaintiffs toill not be sustained.</p> <p>This action was brought to restrain the defendants from removing a bridge which crossed one of the public streets in the city of Binghamton, and united' two parcels of land which were owned by one of the plaintiffs and were occupied by the other two plaintiffs as his tenants. The defendants set up as. a defense, as to the t-wo tenants, that the city had brought an action against them in the Recorder’s Court of the city of Binghamton, to recover penalties for erecting this bridge, and had recovered a judgment therein for $200. ,</p> <p>Held, that a joint demurrer interposed by the plaintiffs should be overruled.</p> <p>That the matter pleaded was a bar as to the two tenants; and that the conclusive effect of the former adjudication was not diminished, as to them, by the fact that another person was joined as a plaintiff with them in this action.</p>

■ The action was brought to recover damages for injuries sustained by the plaintiff by the falling of a staircase, leading from the cellar to the first floor, in » building rented by her from the defendant.

The action was brought to recover damages for injuries occasioned by the flooding of the plaintiff’s lands by water alleged to have been unlawfully diverted from its natural channel by the defendant.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court rendered upon the trial of this action in the County Court of Madison county, without a jury.</p>

<p>Laying out highways — errors in drawing the names of the jurors — when the proceedings are not invalidated by such errors — 2 if. 8. tjlth ed.), 1239, 1240 —1881 cha/p. 696.</p> <p>The statute relating to the laying out of highways provides that the town clerk shall, “ in the presence of a justice of the peace or one of the commissioners of highways of the town, deposit in a box the names of all persons then residents of his town, whose names are on the lists, filed in said town clerk’s office, of those selected and returned as jurors, * * * who are not interested in the lands through which such road is to pass or bo located, nor of kin to the owner . thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names. ”</p> <p>When the names, from which were drawn the jurors by whom the necessity of the highway in this case was certified, were deposited in the box, the clerk ■omitted to place therein the names of fifteen persons which appeared upon the jury lists, upon the ground that they had signed the application for the laying out of the highway, and were, therefore, incompetent to act as jurors. The owner of the land to be taken was present and objected to the omission of these names from the box. Upon a certiorari, brought by him to review tlie proceedings under which liis land was condemned, the failure of the cleric to deposit these names in the box was alleged as a ground of error.</p> <p>Eeld, that the objection was untenable. (Kennedy, J., dissenting.)</p> <p>The name of one person whose name appeared on the list of jurors was omitted by a clerical mistake.</p> <p>Held, that as it was not shown that the relator was injured by the failure of the-clerk to put this name in the box, the proceedings were not invalidated by his failure to do so. (Kennedy, J., dissenting.)</p>

The action was brought to recover an apportionment in general average upon a bond and statement of loss, in so far as that constituted a general average. Tbe defense was that the defendants were not liable in general average. Tbe schooner “ Mary Lord,” on or about the 5th day of Novemher, 1883, sailed from Bath, Maine, having on board a full cargo of lumber, a part of which was consigned to Messrs.

By contract dated March 17, 1873, it was agreed that the plaintiff Archer would receive from defendants’ company on storage in his stores from fifteen to thirty thousand barrels of lime, to be delivered on the plaintiff’s dock after October fifteenth in each year, and to be taken away from said dock on or before the first of May following; plaintiff agreeing to receive the lime on the dock, take it in trucks therefrom, and safely pile and tier it in said warehouse belonging…

The plaintiff, while a passenger for hire on one of defendant’s cars, was ejected therefrom. In his complaint he alleged that while such passenger, he was assaulted and ejected from the car by the conductor, without cause. Upon the trial the jury rendered a verdict for plaintiff, assessing his damages at six cents.

<p>Negligence — burden of proof in am, action against a common carrier— when it may be inferred from the accident itself.</p> <p>In an action to recover damages for injuries sustained white traveling as a passenger on one of the defendant’s horse cars, the plaintiff testified that just before she had reached the depot, at which she was to leave the train, the car gave a jolt, and then a second jolt; she heard a grinding noise under the wheels, and the car seemed to be lifted off the track; that she was lifted off her seat, thrown forward between the seats and injured.</p> <p>Bdd, that in the absence of all explanation on the part of the defendant the jury were authorized, if they believed the plaintiff’s testimony, to infer negligence on the part of the defendant, rendering it liable for the injuries sustained.</p>

The moving papers of the appellant show that the only service •of summons was upon the defendant Myers individually ; that he appeared by due notice of appearance, but that no summons was served on the corporation; and that there was no appearance or pleading served in behalf of the corporation. The corporation served a notice of a motion to have the complaint made more definite and certain.

<p>‘ Appeal from a judgment in favor of the plaintiff, entered 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>The plaintiff was first mate of the bark “ Hattie G. Dixon,” on a voyage from New York to Sagna La Grande, Cuba. The defendant Metcalf was a part owner of the vessel, and the defendant Yates was her master as well as one of the part owners. The plaintiff claimed to have received an injury, while in the service of the vessel, to his right leg, which developed into an aneurism of the popliteal artery, and finally rendered amputation necessary. This action was brought to recover damages for the alleged neglect of the defendant Yates, as master of the vessel, to provide the plaintiff with proper medical care and treatment while suffering from the injury. There was no hospital at the port of Sagua La Grande, but there was one at the city of that name some sixteen or seventeen miles inland.</p>

Tbe plaintiff owns and operates tbe railroad extending from Middletown to Oswego, in tbe State of New York, formerly owned and operated by the New Y orle and Oswego Midland Railroad Company. The property of the latter company was sold under a decree of foreclosure, and the plaintiff was incorporated by the purchaser at the foreclosure sale and his associates in the year 1880.

of $2,889.87, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the-justice before whom the action was tried.

<p>Hegligenoe — when a question for the jury — when it is the duty of an employee of a,ferry-boat to assist passengers — damages for personal injury — prior earnings of the party injured are to be considered.</p> <p>The plaintiff attempted to go on board the defendant’s annex boat, at Brooklyn, as a passenger. The tide was high and the gang-plank leading from the dock to the upper deck of the boat was steep and slippery from rain which was-falling at the time of the accident. When he had nearly reached the top he" slipped upon a rope, which had been left upon the gang-planlc, and was in the-act of falling, when he was seized by one of the defendant’s employees and pulled upon the deck so violently that he fell down and broke his leg. In this action, brought byhim to recover damages for the injuries so sustained:</p> <p>Held, that a verdict in his favor should not be set aside.</p> <p>The question as to whether or not the assisting of passengers upon the boat was within the scope of the duty of the employee who attempted to assist the plaintiff, was left by the judge to ihe jury to determine.</p> <p>Held, that this was a more favorable disuosition of the question than the defendant had a right xo uemand.</p> <p>Drew v. Sixth Avenue Railway (26 N. Y., 49) followed.</p> <p>As bearing upon the question of damages, the plaintiff was allowed to testify that he was a teacher of the French language, and to state the number of his scholars in the years prior to his accident and the amount of his earnings therefrom.</p> <p>Held, no error.</p> <p>Ehrgott v. Mayor, ete. (96 N. Y., 264), followed.</p>

<p>Appeal from an order made at a Special Term, denying a motion for an absolute writ of prohibition to be issued to the Surrogate’s Court of Putnam county, prohibiting it from taking further proceedings in relation to the probate of a will, and dismissing the-alternative writ heretofore issued.</p>

<p>Appeal from an order made at a Special Term, compelling a purchaser to accept a deed.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint.</p>

<p>Appeal from a judgment,'entered upon the report of a referee.</p> <p>The action was brought for the partition of certain real estate in the town of Oyster Bay, county of Queens. Notice of pendency of action was filed April 15, 1882. The people of the State of New York were originally made defendants, and they, the defendants Maynard, and the other defendants, each put in answers claiming, respectively, the whole title to the property in question. Subsequently the plaintiff abandoned his claim, and an act having been passed releasing the interest of the people to Forster J. Maynard, the people withdrew, whereupon the referee proceeded to decide the issues between the defendants, Maynard, on the one-hand and the remaining defendants on the other, in accordance with section 1513 of the Code of Civil Procedure. The action was referred to a referee, who rendered a report finding that the defendants Maynard were entitled to the whole property, and that the other defendants had lost all their rights by escheat. To-these findings the remaining defendants excepted, and appealed from the-judgment entered on the referee’s report.</p>

<p>Appeal by the defendant from portions of an order made at 'Special Term, upon the hearing of a motion to vacate and set aside an execution issued against the person of the defendant.</p>

Motion by the surrogate of Westchester county to modify an •order made by the General Term of the Supreme Court in the ■Second Department, in December, 1881, approving the report of a referee, appointed under chapter 350 of 1881 to examine the books of the said surrogate and report thereon to the court,and directing the surrogate to transfer and pay over the securities and funds in luis hands to the county treasurer.

<p>Abandonment of families by h/usbands — prosecution for, ift'Broohlyn — 1871, chap. 395 — 1882, chap. 17.1 — the ofense to come thereunder must be committed within Kings county.</p> <p>Chapter 395 of 1871, authorizing criminal proceedings to be instituted against persons abandoning, or threatening to abandon, their families, only applies to cases in which the offense is committed in the county of Kings; it does not include the case of a woman coming into that county after her husband has abandoned her in another State.</p> <p>Bayne v. People (14 I-Iun, 181) followed.</p> <p>Such a case was not brought within the purview of the statute by the addition thereto, by chapter 171 of 1883, of the words “or who shall leave them in danger of becoming a burden upon the public, or who shall neglect to provide for them according to their means.”</p>

<p>■Service of summons by publication — what facts show inability to make a personal service— Code of Civil Procedure, see. 439.</p> <p>.In an action to foreclose a mortgage an order directing the summons to he served by publication on certain of the defendants was made upon an affidavit of one of the plaintiff’s attorneys, which stated, among other things, that since the commencement of the action he had made, and caused to be made, inquiries as to the residences of the defendants; that three of them, whose names he gave, were each non-residents of the State of New York, and that each of them resided at Balley-bag, county Monaghan, Ireland; that he was informed and believed that the summons could not, after due diligence, be served on said defendants, or either of them, and that it was necessary to serve the summons on them by due publication thereof.</p> <p>'The affidavit of one Burke was also presented, which stated that he had been directed to serve the summons on all the defendants; that he had served a number of them, but had been unable, with due diligence, to serve those named in the affidavit of the plaintiff’s attorney, and that the said defendants were non-residents of the"State of New York and resided in Ireland.</p> <p>Meld, that the fact that the plaintiff had been and would be unable, with due diligence, to make personal service of the summons upon those defendants, was sufficiently established to authorize the granting of an order directing its service by publication.</p> <p>Kennedy v. New York Life Insurance and Trust Company (32 Hun, 35); Carleton v. Carleton (85 N. Y., 313), distinguished.</p>

It appeared upon the trial that the defendants Samuel L. Mulford and Peter S. Wandell -were copartners, doing business at Stapleton, Richmond county, under the firm name of Mulford & Wandell, from 1862 to 1869. They were engaged in the sale of lumber and coal. The defendant Peter S. Wandell was, during a considerable part of the period of their copartnership, the county treasurer of that county.

This action was brought by the plaintiff as administratrix to recover damages caused by the killing of her husband by an engine of the Long Island Railroad Company. It was brought to trial before Mr. Justice Cullen and a jury, on tlie 19tli day of October, 1883, and upon the close of the plaintiff’s case the complaint was dismissed on the ground of contributory negligence on tlie part of the deceased.

37, entered upon the report of a referee. This suit was brought b}^ the plain tiff as survivor of the firm of Sweet & Finnegan, to recover of the defendant Alexander Taylor, $106.86. The proof showed that the plaintiff and one John Finnegan were-partners in the hotel business at Middletown, N. Y'., from June 20, 1871, to April 21, 1873; that the partnership was dissolved on the 21st of April, 1873, by the death of Finnegan, leaving the plaintiff the-survivor of the firm.

On January 10, 1876, David Hawley, of Yonkers, qualified as ■executor of the will of Isaac M. Singer, deceased. Under that will he became the testamentary guardian and trustee of several of the children of the deceased, and among others of Adam Mortimer Singer.

This action was brought by the plaintiff, who had purchased certain premises in the town of New Lots at a foreclosure sale, on May 3, 1872, to recover from the defendant money alleged to have been received hy it from him, in payment of an invalid assessment. The money was alleged to have been received by the county treasurer from tbe town collector, who took it on February 1, 1874, from the county clerk, under a warrant issued by tbe board of supervisors of Rings county.

<p>County Court — orders resting in its discretion cure not remewdble at General Term.</p> <p>An order made in a County Court, refusing to set aside an inquest and to permit the defendant to answer, is not reviewable by the General' Term, as the granting or refusal of such an order rests in the discretion of the County Court, and the discretionary decisions of one tribunal are not reviewable by another.</p> <p>Btebbins v. Cowles (30 Hun, 523) followed.</p>

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

<p>Appeal from an order of the Special Term denying a motion to vacate an order for the examination of a party to an action.</p>

<p>Appeal from an order made at the Special Term, denying a motion made on behalf of the appellant Jones, that certain judgments recovered against him be vacated.</p>

<p>Appeal from a judgment, entered upon the verdict of a jury at the New York Circuit, 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>

'Appeal from an order of tibíe Special Term, denying a motion to vacate an attachment issued in an action brought upon a judgment recovered in the State of Pennsylvania.

<p>Appeal from a decree of the Surrogate’s Court of the county of New York.</p>

<p>Appeal from a decree of tbe surrogate of tlie city and county of New York.</p>

<p>Appeal from so much of the judgment, entered upon the report . of a referee, as directs that the respondent recover the costs and disbursements of the action. *</p>

<p>Mew Jersey statute as to general assignments — what pj'operty the assignment must embrace in order to prevent a firm creditor from enforcing the individual liability of the members of a firm.</p> <p>'The defendants are members of a firm which made a general assignment of the firm assets in New Jersey, in which State they then resided. The plaintiff, who was a creditor of the firm, after appearing and receiving a dividend upon his claim from the assignee, brought this action to enforce the individual liability of the partners for the balance of the debt. The defendants claimed that the action was barred by the New Jersey statute regulating assignments, which provided that creditors who came in and exhibited their demands for a ■dividend should be wholly barred from having afterwards any action or suit at law or in equity against the debtors or their representatives, unless they should prove fraud in respect to the assignment.</p> <p>'Held, that the discharge given by this act only became operative when all the property, individual as well as firm, was assigned, and did not apply when the firm assets alone were transferred to the assignee.</p> <p>It seems, that the New Jersey statute may leave the individual liability of the members of the firm unaffected in a case where the copartnership liability is discharged by the acceptance of a dividend. (Davis, P. J.)</p>

<p>Certiorari to review the assessment, lor the purposes of taxation, of the relator.</p>

Appear from a judgment in favor of the plaintiff, entered 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>Appeal from order of the Special Term, appointing a receiver.</p>

<p>Bond of indemnity to a sheriff — what is evidence of the exercise by the sheriff of hi» judgment in making a levy.</p> <p>This action was brought against the sureties on a bond of indemnity given to the-sheriff of New York .to protect him, and all persons assisting him, from any damages that might accrue to him of them from the levying, attaching and making sale, under and by virtue of an execution then in the sheriff’s hands, of all or any personal property which he or they should or might judge belonged to the judgment debtor. Upon the trial the defendant’s counsel requested the court to charge that if neither the sheriff, nor any of Ms deputies, judged that the property taken under the execution was owned by the judgment debtor, then the defendant was entitled to a verdict.</p> <p>Held, that the court erred in refusing so to charge.</p> <p>That the mere fact that the levy was made, was not to be construed when an issue was created in regard to it, as evidence of the exercise of the judgment required by the bond. (Davis, P. J., dissenting.)</p>

<p>Appeal from a judgment dismissing tbe complaint, entered upon the trial of this action at the Special Term.</p>

<p>Appeal from a judgment in favor, of the plaintiff, entered upon a Yerdict directed by the court.</p>

<p>Case agreed upon in a controversy submitted without action under section 1279 of tbe Code of Civil Procedure.</p>

<p>Transmission of a drajt for collection — when the collecting banlc becomes the debtor of the owner of the draft.</p> <p>The firm, of E. 0. Dennecken & Co., of London, having drawn a draft for a sum named, upon the plaintiff Naser, payable at his place of business in blew York city, gave the draft to the firm of McCulloch & Co., London, who, at the request of the drawers, transmitted the same to the defendant, at New York, for collection. McCulloch & Co. had no interest in the draft or its proceeds, %nd received it merely for transmission to the defendant. Before the draft became due the plaintiff Naser commenced an action against Dennecken & Co., and immediately after paying the draft attached the moneys so paid as a debt due from the defendant to Dennecken & Co. The defendant disputed the validity of the attachment, upon the ground that it was the debtor of McCulloch & Co., and not of Dennecken & Co.</p> <p>Held, that this claim could not be sustained, and that the plaintiff acquired a valid lien upon the proceeds of the draft by virtue of his attachment.</p>

<p>iService of summons by publication — when the order directing it may be subsequently-amended — service of a summons upon an absent resident in an action of foreclosure— Code of Civil Procedure, sea. 488, sub. 5 — right of the court to resettle finiL. ings after judgment.</p> <p>• Where an order directing the service of a summons hy publication, although in fact made hy a justice at chambers, has a caption as though made at a Special Term, the court has power to subsequently amend the order by striking out the caption.</p> <p>In an action to foreclose a mortgage an order for the service of the summons-upon a resident defendant, who is absent from the State, might, in March, 1878, have been made under subdivision 5 of section 438 of the Code of Civil Procedure, without showing, before such an order could be made, the facts-required to be shown by subdivisions 2, 3 or 4 of the said section.</p> <p>The authority to so servo the summons upon a resident in such an action does not violate the provisions of the Constitution.</p> <p>After this action had been tried the justice who had presided at the trial filed findings of fact and conclusions of law directing a judgment in favor of the plaintiff. Some days thereafter he granted an order to show cause why the judgment entered thereon should not be vacted and the findings be resettled, and upon the return of such order he vacated the judgment and resettled the findings by leaving the findings of fact as they were, and making the conclusions of law such as to award a judgment to the defendants, upon which decision a final judgment in their favor was granted.</p> <p>Meld, that the justice had power to so vacate the judgment and resettle the findings.</p> <p>Moekwell v. Oarpenter (35 Hun, 539), MeLean v. Stewart (14 id., 473), distinguished.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in an action brought to foreclose a mechanic’s lien upon premises situated in the city of New York.</p>

Motion on behalf of Christiana M. J. McEnroe and others to-vacate and set aside an order appointing commissioners to ascertain and report whether a railway should be constructed upon certain, streets in the city of New York.

<p>Appeal from an order made at a Special Term, canceling an assessment.</p>

<p>Practice — an action must be brought by the real party in interest — Code of Civil P'oced/u/re, see. 449 — in enforcing claims in this State a foreign creditor must follow the lex fori.</p> <p>This action was brought by the plaintiff upon a promissory note made by the defendant to the order of and indorsed by one Terhune. The plaintiff was-incorporated by a special act of the legislature of New Jersey. In 1877, on the petition of a stockholder and creditor, a receiver of its property was-appointed, under a statute of that State which declares that when any corporation shall be dissolved the chancellor may appoint a receiver to take charge of the estate and effects of the corporation, and collect its debt's and property due and belonging to it, with power to prosecute and defend, in the name of the corporation or otherwise, all such suits as may be necessary and proper for that purpose.</p> <p>Held, that the complaint was properly dismissed upon the ground that the action was not prosecuted by the receiver, the real party in interest, as required by section 449 of the Code of Civil Procedure.</p> <p>That the New Jersey statute, authorizing the receiver to bring an action in the-name of the corporation, had no extra-territorial force.</p>

<p>Appeal by the defendants Thompson and Smith from an interlocutory decree, overruling a demurrer to the complaint.</p>

<p>Devise of real estate in trust — the persons holding the estates in remainder must be made pan-ties to an action for partition — when infants an-e not barred from following real estate, after coming of age, by reason of having received the proceed& of the sale thereof on an accounting by an executor before the surrogate.</p> <p>A testator, by a codicil, gave that share of his estate, which he had, by his will, given to his son Charles to his son George in trust to collect and receive the rents, issues and profits thereof, and apply the same to the use of Charles for and during his natural life, and upon his death, leaving a lawful child or children, to assign, transfer and convey the said share unto such child or children, their heirs, executors, administrators and assigns, equally to be divided among such children, if more than one; and in case Charles should die without leaving any child or children, then to convey, assign and transfer such shares to the heirs-at-law of Charles.</p> <p>The son George individually and as trustee of his brother Charles, brought an action to partition the estate and procured therein an actual partition thereof. To.this action the persons presumptively or actually entitled to the property in remainder were not made parties.</p> <p>Held, that they had a vested interest in the property and should have been made parties to the action.</p> <p>After the proceedings in partition had been completed the accounts of the execu-> tors were settled before the surrogate, all the persons interested in the estate and in the distribution of its proceeds being made parlies thereto; and the proceeds thereof in the hands of the executors were divided or distributed under a decree of the surrogate made therein.</p> <p>Held, that as it appeared that some of the persons 'so interested were infants, and were represented by guardians, and as it was not shown that the money was recen-ed by them or by their guardians, with knowledge of the fact that any portion of it was the proceeds of the property so partitioned, that the said proceeding or decree did not prevent the infants from electing, on attaining their majority, to follow the property itself. (See Mutual Life Ini. Go. v. ScJmaner, post p. 878.1</p> <p>That they might so follow the said property without returning the moneys received upon the accounting, provided it was proved that the said moneys were expended for their benefit during their minority.</p>

<p>.Decree on the accounting of cm eoxcutor n the Surrogate’s Court — when it cannot be . attacked in collateral proceedings— an infant, wppeamng by a special guardian, is bound by the decree made.</p> <p>■One Sclrwaner, as the executor of one Schaefer, under a power of sale conferred, by the latter’s will, sold certain real estate owned by the deceased to one Bernhard G-. Amend for the sum of $110,000, at which sum the properly had been appraised in proceedings institut ed in the Surrogate’s Court. At that time the executor and one Paul Amend were carrying on business, as partners, in and ■as lessees of the said real estate, and the same was thereafter conveyed to them by Bernhard, who took back a mortgage upon the premises. Thereafter the executor’s accounts were finally settled by the surrogate, objections having been taken to this manner of disposition of this property and afterwards abandoned, and the executor being charged in such accounts with the consideration received upon the sale of the property, that is, $110,000. Thereafter the executor and his partner gave a third mortgage thereon to Bernhard and Ms partner, who then owned the other mortgage.</p> <p>A first mortgage, owned by the plaintiff and subject to which the executor had sold, having been foreclosed, certain of the heirs of Schaefer claimed to be entitled to the surplus moneys on the ground that the sale of the property by the executor was fraudulent and in fact made to himself.</p> <p>Meld, that they were estopped by the decree of the surrogate, settling the accounts of the executor, from making such claim.</p> <p>That those of the heirs who were under age at the time of the said accounting, and were then represented by special guardians, were also estopped from so doing. (See Moore v. Appleby, ante, p.368.)</p>

<p>Appeal from a decree of the surrogate of the county of New York, made upon the final accounting of Mary J. Morgan, as ■executrix of the will of Charles Morgan, deceased.</p>

<p>Application to remove a trustee — all the beneficiaries must be made parties — extra* allowance — where a motion therefor, must be made.</p> <p>Five persons conveyed to two trustees their rights and interests in certain inventions or improvements, in order to enable the trustees to dispose of them to the-best advantage. The proceeds arising upon any sale were to be divided among the parties, in proportion to the value of their respective inventions, and in, case of dispute the proportion was to be settled by arbitration.</p> <p>This action was brought by the plaintiff, one of the parties to the agreement, to-have the trustees removed for neglect of duty and breach of faith in returning: to a corporation, which had purchased the said inventions, the certificates of its stock which it had agreed to give in payment therefor.</p> <p>Held, that the action could not be maintained without making all the parties to-the agreement parties to the action.</p> <p>That although the defect of parties appeared upon the face of the complaint, the-right to object was not, in this case, waived by the failure of the defendants to raise the objection by demurrer.</p> <p>That the fact that the complaint alleged that the action was brought by the plaintiff not only in his own.behalf, but also in behalf of his co-beneficiaries in the trust, did not cure the omission.</p> <p>Where an action in the Supreme Court has been tried in the first judicial district,, an application for an extra allowance of costs must be made in that district, although the justice before whom the action was tried resides in another district.</p>

<p>Appeal from an interlocutory judgment oyerruling a demurrer interposed to the plaintiffs’ complaint.</p>

<p>Service of a summons on a defendant outside of the territoi'ialj urisdiction of the court— effect of a judgment entered then'eon in another State — when binding if the defendant appears — TT. S. Const., an'i. 4, sec. 1 —after the dissolution of a mm'riage ru> action for divorce will lie.</p> <p>In this action, brought to procure a divorce on the ground of adultery, the defendant,who was then a resident of Texas, after having been served with the summons under an order of publication, appeared and answered the complaint. Thereafter the defendant commenced an action in Texas to procure a decree dissolving her marriage with the plaintiff, her husband, upon the ground of his cruelty and other misconduct. While the present action was pending, a citation, issued in the action brought by the wife, was personally served upon the defendant in that action (the plaintiff in the present action) in New York, the place of his residence, as authorized by a statute of the State of Texas. After the service of this citation the plaintiff proceeded to Texas and answered the petition filed against him there by his wife, the present defendant. After the'wife had been allowed to amend her petition, to obviate objections taken by him to the sufficiency of its allegations, he again answered it, alleging, first, a want of jurisdiction on the part of the court over his person, and afterwards setting up a defense to the action upon the merits. Upon the verdict of a jury, a judgment was entered in favor of the wife, dissolving the marriage, which judgment was subsequently affirmed by the Supreme Court of Texas upon an appeal taken to it by the husband. After the recovery of this judgment, the wife, the defendant in this action, was allowed to set up the recovery thereof, by supplemental answer, as a defense to this suit.</p> <p>Held, that although the service of the citation, issued in the wife’s action, upon the husband in this State would not have conferred jurisdiction upon the court in Texas to direct a judgment dissolving the marriage, which would be valid and effectual in this State, yet by his appearing in that action and contesting the jurisdiction of the court, and the right of his wife to maintain her suit, he rendered the judgment entered against him conclusive in that State, and therefore entitled, under section 1 of article 4 of the United States Constitution, to the same conclusive force and effect in this State.</p> <p>That if the Texas court erred in holding that it had acquired jurisdiction over his person, the error could only be corrected by means of an appeal, writ of certiorari, or writ of error, brought for the direct purpose of reviewing and correcting the decision.</p> <p>That as the judgment dissolving the marriage, so recovered by the wife, was binding upon the plaintiff, her husband, it disabled him from further prosecuting this action against her. (Beady, J., dissenting.)</p> <p>Btilphen v. SUlphen (58 Me., 508), distinguished.</p>

<p>Appeal from a judgment in favor of the plaintiff recovered on a trial at the Special Term.</p>

<p>Appeal by the New York Elevated Railroad Company from the appraisal and report of commissioners appointed to ascertain and appraise the compensation to be made to Rufus Story, as the owner of, or person interested in, so much of the privilege, easement or other interest in Front street, belonging to said Rufus Story, or appurtinent to lots Nos. 7 and 9 on that street, as is taken by the petitioner for its use as an elevated railway company.</p>

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

<p>Agent— impliedpower of, to borrow money — when the direction of an agent to a mbagent is admissible as against the principal.</p> <p>This action was brought against the defendants, who resided and carried on business in Paris, to recover money loaned to an agent carrying on business for them in New York. The general agent of the defendant, having charge of their business in the city of London, had appointed one Bickford to locate and build up a distinct and separate business in the city of New York, he being supplied with goods manufactured by the defendants, and being empowered to exhibit and sell them, no specific restrictions being imposed upon him.</p> <p>Held, that the court properly submitted to the jury the question as to whether Bickford did not have an implied power to borrow money, when necessary, to be used in the course of the business.</p> <p>Futfcer v. Woolsey (64 Barb., 142;, distinguished.</p> <p>Upon the trial a letter written to Bickford from the London agent, in response to one from Bickford, was read in evidence. In it the London agent stated that he did not see any harm'in Bickford’s borrowing money, and told him to be sure and send him some and keep his payments regularly.</p> <p>Held, that as Bickford was subject to the London agent’s direction in the management and conduct of the business, the evidence was admissible.</p> <p>White v. Miller (71 N. Y., 118), distinguished.</p>

<p>Appeal from a judgment entered on the dismissal of the complaint at the circuit.</p>

The action was brought to enforce the specific performance of a contract made by the defendant with the jilaintiff’s testator for the purchase of lands, now occupied by the defendant with its railroad tracks.

The action is upon a promissory note executed by R. C. Benedict and James H. Strong, as principals, and by the defendant, A. M. Eulton, as surety, to Sylvester Wheeler, the plaintiff’s testator, dated February 27, 1877, for $600, payable one year after date. In the month of May, 1879, Fulton demanded of Wheeler, the owner of the note, that he should collect the same from the principal debtors.

The action was brought to recover the possession of two barrels-, of barbed wire worth sixty dollars, sold by the plaintiffs to one; Ansicker, the defendant’s assignor. The plaintiffs claimed that the-property had been reconveyed to them on April fifteenth, prior to the making of the assignment.

Appeal by the people from-a judgment, entered against them in favor of the defendant Cushing, upon the report of a referee, dismissing the plaintiffs complaint. This action was brought upon a bond executed by the defendant Cushing, and others, as sureties for the First National Bank of Buffalo, which was designated in 1880 as a depositary for moneys collected for canal tolls in the city of Buffalo.

611 of 1875. The relator was incorporated in 1882, to establish and conduct, in “the city of New York, a museum of art, after the manner of the Musée Grevin of Paris, for the manufacture and exhibition of works of art. In 1884 proceedings to reduce the amount of its •capital stock were commenced and carried through in conformity with the provisions of the fifteenth section of the act under which it was incorporated.

22, ■and pay the same into the treasury of the State. By the general system of taxation (chapter 427, Laws of 1855, inserted in 5th ed., R. S., as arts. 2 and 3, title 3, chap. 13, part 1, 1 R. S., 925, 926) the comptroller is to charge the several county treasurers with the amount of the State tax of their respective counties. (Sec. 44 [8].) The county treasurer is to return certain unpaid taxes to the comptroller.

The facts admitted by the demurrer are : that defendant was the general guardian of plaintiff; that plaintiff came of age March 26, 1879; that about May 14, 1879, defendant represented to plaintiff ■that there was in his hands, as guardian, $4,363.10; that at least that amount was actually in defendant’s hands, as guardian; that about that time defendant gave plaintiff a note and mortgage of one Charles W. Low, a brother of defendant, for $3,200 and interest, dated March 29,…

<p>Decree of surrogate on final account — when it will not he opened to correct am error*</p> <p>September 3, 1883, an executor applied to a surrogate to vacate a decree made upon bis final accounting in September, 1874, in order to correct an alleged* error against tbe executor amounting to $380.02.</p> <p>B.eld, that considering tbe lapse of time, the smallness of tbe amount involved, and tbe inconclusive character of tbe evidence as to tbe existence of tbe error tbe surrogate properly refused to reopen tbe decree.</p>

On the 26th day of August, 1882, Patrick Flannagan, accompanied by Patrick H. Riley and Margaret Smith, brought to ■defendant’s bank $876.75 which, in fact, belonged to Mary Riley, since deceased, and deposited it to her credit and received the usual pass-book, showing such deposit to her credit. The money was received by defendant in good faith and in the usual course ■of business.

<p>Appeal from a judgment, entered upon an order sustaining demurrers interposed to the complaint, and from an order granting an extra allowance.</p>

<p>Motion to dismiss an appeal.</p>

Appeal by^h'e defendants from a judgment for $952.06 damages and $113.16/osts against them and in favor of the plaintiff, entered in the Sarajdga county clerk’s office on the 6th day of October, 1883, upon the verdict of a jury. This action was brought upon a bond given by the defendant Olmstead as principal, and Clement as surety, to the Saratoga Savings Bank, conditioned for the faithful performance by Olmstead of his duties as president and general actuary of said bank.

<p>Probate of a will — only presumptive evidence of its validity so far as it affects real estate — an estoppel — it does not apply unless a party will be injured by the withdrawal of the former statement — waiver — not effective unless made with knowledge of rights.</p> <p>This action was brought by the plaintiffs, the only heirs-at-law of one Freiot, to recover certain real estate owned by her, in hostility to the provisions of what purported to be her will. By the alleged will the real property was devised to an executor, to apply one-half of the income thereof to the support of one of the plaintiffs for her life, the other half to the support of the other plaintiff. Upon their respective deaths the one-half of the estate so held for each was given to her children, all of whom were made defendants to this action, some of them being infants. After the decease of the testator the plaintiffs presented to the surrogate their verified petition describing themselves as legatees and praying for the probate of the will; the subscribing witnesses having been produced by them and proved the due execution of the will, it was admitted to probate, and the defendant Comstock, a creditor, was appointed administrator with the will annexed, the executor and trustee named therein having renounced. Subsequantly, upon the plaintiffs’ petition, Comstock was appointed trustee by the Supreme Court and entered upon the discharge of the duties of his office.</p> <p>The plaintiffs were present when the will was executed, well knew of its conditions and all the facts and circumstances connected with its production and proof before the surrogate; as to all things done by them they acted in good faith. Having subsequently related to Comstock what had been said and done at the time of the execution of the instrument, and being informed by him that, in his opinion, if the facts were as detailed, the will was worthless, they brought this action to recover the real estate. The referee found that they were estopped from questioning the validity of the will.</p> <p>Held, that this was error.</p> <p>That they were not estopped by the decree admitting the will to probate, as such decree was but presumptive evidence of the validity of the will in so far as it affected real estate, nor did the fact that the probate was procured on their application at all affect the question as to its conclusiveness.</p> <p>That they were not concluded by the order appointing Comstock as trustee to carry out the provisions of the will, as it adjudicated nothing as to the validity of that instrument.</p> <p>That they did not by their conduct waive their right to claim in hostility to the provisions of the will, as they were ignorant of their rights at the times referred to.</p> <p>That there was no estoppel by deed, as assuming that the will should be treated as such, its validity was assailed.</p> <p>That there was no estoppel in pais, as it did not appear that' any person had been induced, by their conduct, to so act as that he would be injured by the allowance of their present claim.</p>

<p>Appeal from a judgment of the County Court of Ulster county, entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial made upon the judge’s minutes.</p>

■ Appeal from a judgment in favor of the plaintiff, entered upon report of a referee. The defendant and Smith Wood made and delivered to the payees thereof the following note: $80. Altona, Oct. 18, 1878. For value received, I promise to pay Baker & Wood eighty ■dollars at Altona express office, with use, January 1, 1880. E. W. WOOD. SMITH WOOD. The payees transferred the note to Coonley & Smith.

The action was brought upon a written lease under seal, executed by the plaintiff, and by the lodge through its committee to recover the rent due thereby to the plaintiff, for certain rooms therein leased to said lodge. At the time of the commencement of this action Jeremiah Borst was, and yet is, treasurer of Lodge No. 394 of Free and Accepted Masons. The lodge is one of the masonic lodges of this State. It is located at Cobleskill, Schoharie county, JN.

The action was brought to foreclose a mortgage given by one Solomon R. Durkee to the plaintiff upon certain- real estate. The plaintiff’s mortgage was dated, acknowledged and delivered on December 3, 1881, and recorded June 8, 1882. A mortgage to the defendant, the bank, on the same property was given by Durkee, which was dated, acknowledged and recorded on December 5, 1881.

<p>Appeal from an order made at a Special Term denying a motion made, by the petitioner for an order compelling the respondent to ,pay over certain moneys belonging to her.</p>

The action is brought under the civil damage act. (Laws 1873, chap. 616.) The plaintiff alleged “ that at the time of the death of Amos Eord, hereinafter mentioned, she was the wife of said Eord and is; now his widow. “ That the defendant, at the city of Ogdensburg, during the-time hereinafter mentioned, kept a certain place situate on Isabella street, in said city, for the purpose of selling intoxicating liquors, .and at which place intoxicating liquors were sold. “ The…

Appeal by Cornelius H. Slingerland from an order, made by the Surrogate’s Court of Albany county refusing to dismiss the petition and citation of one Tracy, as administrator of Peter W. Ten Eyck, requiring appellant to appear before the surrogate and be examined concerning the personal property belonging to the estate of the deceased.

<p>■Sureties on an executor’s bond — when an action lies against them before any order or claim against the executor has been made in the Surrogate’s Court— Code of Civil Procedure, sec. 2607.</p> <p>In this action, brought against the principal and sureties on a bond, conditioned that the principal should faithfully discharge the trust reposed in him as executor and trustee, the complaint set forth two causes of action. The first count alleged that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds thereof as required by the will, and demanded judgment for the damages resulting therefrom. The sureties demurred to the entire complaint, upon the ground that it was not alleged that the default of the executor had been established against him by an order or decree of the surrogate.</p> <p>Meld, that as the demurrer was to the entire pleading, it should be overruled, if either of the causes of action was well pleaded.</p> <p>That the Surrogate’s Court had no jurisdiction over the first cause of action seeking to recover damages. That consequently no judgment or decree for that breach of the executor’s duty could be obtained in that court, and the demurrer to the complaint in this action was, therefore, properly overruled. (Learned, P. J., dissenting.)</p> <p>Mood v. Mood (85 ÍT. Y., 561) distinguished.</p>

<p>Appeal from judgments dismissing the complaint in the above-entitled actions, entered upon the trial of the actions by the court without a jury.</p>

<p>Appeal from an order made by the county judge of Columbia ■county, vacating a former order made by him requiring the respondent Conklin to appear before a referee and be examined concerning his property.</p>

<p>Appeal from a judgment, entered upon a decision made at a Special Term in proceedings brought to review the assessment of the relator’s real estate by the appellants.</p>

The action was brought to recover damages resulting to the plaintiff’s property and person from the frightening of his horses and their attempting to run away, by reason of an explosion in the streets of the defendant occurring in the course of the work of construction of a sewer by a village contractor. The horses were at the time tied to a post in the street.

The action was brought to recover damages for the wrongful taking, carrying away and converting to the use of the defendants •of a quantity of leaf tobacco belonging to the plaintiff.

John Osgood, the petitioner, on the 23d day of May, 1883, deposited $900 to the credit of his wife Sarah O., in the State Bank of Fort Edward, and gave to her the bank book showing the deposit. Subsequently, in June and July, she drew checks on 'this amount, which were paid, and when the receiver took possession of the bank there remained to her credit, including interest, $856.12. The money, before it was deposited, was the property of John Osgood.

<p>Bale of land for taxes — duty of the board of supervisors to extend the tax — an illegality in any of the taxes, for which land is sold, vitiates the whole sale —1855, chap. 427.</p> <p>This action, was brought to recover damages for the wrongful conversion of logs which were upon land to which the plaintiff claimed title under a deed from the comptroller of the State, made in 1877, at a sale had for the non-payment of the taxes levied thereon in the several years from 1866 to 1870. It appeared that during the years 1868, 1869 and 1870 the board of supervisors, after fixing the total equalized valuation of the town and determining the tax to be raised therein, had signed, sealed and delivered to the supervisor of the town their warrant for the collection of the tax, and had affixed the same to the assessment-roll and adjourned sine die, having previously directed the said supervisor to extend the taxes against the persons and property named therein. Neither the warrant nor the assessment-roll contained a statement of the rate of taxation.</p> <p>Held, that the statute (sec. 33 of 1 R. S., m. p. 395) required the board itself to estimate and set down upon the roll the sums to be paid as a tax upon the valuations as therein set down, and that it could not delegate the power so to do to one of its members.</p> <p>Bellinger v. Gray (51 N. Y., 610), followed; Bradley v. Wan'd (58 id., 401); Colman v. Shattuch (62 N. Y., 348) ; Mrst National Bank of Utica v. Waters (7 Red. R., 152), distinguished; Tattmadge v. Supervisors (21 Barb., 611), overruled.</p> <p>That the fact that the validity of the rolls in the years 1866 and 1867 was not attacked did not aid the plaintiff, for the reason that as the statute did not allow the owner to redeem from the legal taxes and treat the sale for the illegal taxes as a nullity, the illegality of a part of the taxes, for the non-payment of which the land was sold, vitiated the whole sale.</p>

The plaintiff’s intestate, a little boy between five and six years of age, on the 23d day of April, 1881, met with an accident on Federal street, in the city of Troy, by the falling of a bar counter upon him, from the effects of which he died within three or four hours afterwards.

Theodoric R. Westbrook, ordering that a peremptory mandamus issue against the county treasurer of Greene county, compelling him to pay for certain publications in the Windham Journal, directed by an order made by Hon. A. Melvin Osborn, November 6, 1878, at a Special Term in Greene county, by which it was “ ordered that the terms of the General Term of the Supreme Court, appointed to be held in the Third Judicial Department of this State, and of the Special Terms of said…

De Lisle, plaintiff, and who has since died, to be revived in the name of this plaintiff, as her administrator, and allowing this plaintiff to serve an amended or supplemental complaint; also an appeal from an order denying a motion to vacate the first order, and to strike out the new matter inserted in the amended or supplemental complaint.

This action is brought and a recovery sought against the defend.ants as trustees of the Scliaghticoke Woolen Mills, under the provisions of section 23, chapter 40, Laws 1848, being the “ act to .authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes.” The section is as follows : “ If the indebtedness of any such company shall at any time exceed the .amount of its capital stock, the trustees of such company assenting thereto shall…

The court at General Term said: “ The owners have also noticed a motion at this term, which has been made, preliminarily, to set aside the report and award and order on the ground that the company has failed to deposit the money as required by the order (which was made August 16, 1881), and is insolvent. These facts are not disputed. The rights of the respective parties became vested by the confirmation. {People ex rel.