Volume 47 — Howard's Practice Reports

Plaintiff’s points as to joinder of defendants Hill and Babcock, cited Story Eq. Pl. (§ 232); Code, §118; Brady agt. McCoskey, (1 Comstock 222 and cases): Bennett agt. McGuire (48 Barb., 625, 636); Lawrence agt. Bank of Rep. (35 N. Y, 320-324); Shaver agt. Brainerd (29 Barb., 25); Jeffries agt. Cochrane (47 Barb., 557); Murray agt. Ballou (1 John. Ch., 576, 579 and cases.) R. H. Crittenden, for Mrs. Hill, cited Hubbell agt. Meigs (50 N. Y., 489, and cases); Spicer agt.

The plaintiffs commenced an action against the defendant, as a common carrier, to recover the sum of $2,500. About a year after issue was joined, the defendant served upon the .plaintiffs an offer to allow judgment to be taken against him for fifty dollars, with interest and costs. . The plaintiff, on the trial, recovered only that amount. The defendant moved for an allowance.

This action was brought to recover the sum of seventy-five dollars for two months’ rent of a house in 117th street, in the city of New York. The letting was for one year from the 1st day of May, 1869, to the 1st day of May, 1870, at the yearly rent of $450.

Present—Ransom Balcom, Justice. Obdeb that defendants show cause why a peremptory mandamus should not issue against them commanding them to consider and act upon the relator’s petition asking them to reduce the assessments of rents reserved to him -in leases in fee on lands in the towns of Kortright and Davenport, in such a manner and to such an extent as to render such assessments against him just and equitable, and to exercise their discretion in respect to such…

<p> Breach of contract —injunction. </p> <p>The plaintiff, a mutual life insurance company, entered into a contract with the defendant, a club incorporation, by which the plaintiff agreed to insure the lives of all the members of the defendant, who should be accepted by the plaintiff at the rate of the regular premiums established, or to be established by the plaintiff; to accept through the instrumentality of the defendant payment of the said premiums in weekly, monthly or quarterly installments ; and to grant to the defendant certain commissions and allowances for procuring the business and actively assisting in its management, containing minute provisions as to the rights and duties of the contracting parties, and of the holders of the policies to be issued under it. It was also agreed that as long as the defendant did not number 20,000 paying members, and a single policy remained in force, the contract should not be dissolved.</p> <p>Under this contract the defendant effected insurance on the lives of about 1,500 of its members, so .that defendant became a highly important branch of plaintiff’s business. This result was obtained by the plaintiff at great cost and labor, by extending at all times liberal aid to the defendant, and by making liberal advances to the agents of the defendant to be repaid from future business.</p> <p>For certain reasons the relations between these corporations became highly unpleasant, and the defendant has taken steps to transfer its insurance business to another life insurance company.</p> <p>This action was brought by the plaintiff, and an injunction granted restraining the unlawful action of the defendant in violating the contract, but not to affect the business or property of the defendant generally.</p> <p>Retd, on this motion, that the court had searched in and outside of the contract by which the rights of the parties are to be determined, for some justification of or legal excuse for the conduct of the defendant, but had not been able to discover any. Upon this point the burden of proof rests with the defendant.</p> <p>Held, also, that upon well-settled principles of equity jurisprudence the plaintiff has shown itself entitled to the continuance of the injunction, until the final determination of the rights of the parties upon the trial.</p>

I, the undersigned register in charge of the above entitled matter do hereby certify: That the firm of T. H. & T. W. Conkling have proved a claim before me against the said estate of $1,101^4-701' rent of premises, leased by them to the bankrupts from the 1st day of May, 1871, to the 1st day of May, 1873, at a rental of §3,500, payable monthly on the first day of each and every month, beginning with the first day of June, 1871, claiming the sum aforesaid as and for the rent…

Motion that exceptions ordered to he heard in first instance at general term be overruled, and that plaintiff have judgments on verdicts rendered in his favor under direction of the court. These four actions were brought upon policies made by the defendant reinsuring the company, of which the plaintiff was receiver, against loss on certain property, the owners of which property had been insured upon the same property by the receiver’s company.

The plaintiff recovered at special term. The allegations in- the - complaint appear in the opinion. An injunction was granted, as prayed for, June 8, 1863, and the same with the summons and complaint placed in the hands of the sheriff of Saratoga county, to be served June 9,1863.

<p> Mcmdcmus—comptroller New York city—trier of court. </p> <p>The relator having been, prior to the year 1870, duly appointed crier of the court of common pleas, New York, by that court, it became the duty of the supervisors, under section 39 of the Code, to fix his salary, which was done by a resolution of the supervisors of May 36, 1870, to take effect January 1,1870, at $3,500 per year, which resolution was duly approved by the mayor.</p> <p>Prior to the time when the resolution was passed, fixing the salary, the relator had, for some time, drawn his pay as any ordinary officer of the court at $1,300 per year.</p> <p>It having been urged by the corporation counsel, as the sole ground of objection to the mandamus, that the resolution of May 36, 1870, was invalid, because by section 7 of chapter 875 of the Laws of 1869 the supervisors were prohibited from increasing the salaries of those then in office or their successors, except as provided by acts of the legislature, and because the third section of chapter 383 of the Laws of 1870, passed April 36,1870, contains a similar prohibition:</p> <p>Reid, that the objection had no relevancy to this case. There was no increase, because the salary had not previously been established.</p>

On the question of what constituted warranty, cited Mills agt. Selwood (61 Barb., 238); Messenger agt. Pratt (3 Lansing, 234). A positive affirmance of a fact is a warranty, Sweet agt. Bradley (24 Barb., 549); Roberts agt. Morgan (2 Cow., 438); Chapman agt. March (19 John,., 290); Duffee agt. Mason (8 Cow., 25); Carley agt. Wilkins, (6 Barb., 557); Edick agt. Crim (10 Barb., 445); Mason agt. Lord (40 N. Y. 476).

<p> Conveyance—real estate —fraud of creditors. </p> <p>Where a conveyance of real estate is made fór a fair and reasonable consideration, the court will not be warranted in declaring the same fraudulent and void, as against the grantee, unless either fraud or a fraudulent intent be made to appear on his part as well as on the part of the grantor.</p> <p>And although the grantee had accepted the conveyance with knowledge that the grantor was in embarrassed circumstances, that would not necessarily imply that he took it with a fraudulent intent.</p> <p>Where it appeared that the grantee, prior to receiving a conveyance from the grantor, was a large creditor of the latter, having, in good faith, loaned and advanced to him at different times a large amount of money, held, that there was nothing unlawful or improper in the grantor’s preferring the grantee to his other creditors, and transferring some of his property in payment of his indebtedness; and the latter had a perfect right to receive the same in satisfaction of his just indebtedness, provided no fraudulent intent entered into the transaction.</p> <p>Where the amount of indebtedness of the grantor, of over $13,'500, was discharged in consideration of the conveyance of the premises from him to the grantee, and where it appeared by the decided weight of evidence that said premises were not worth over $14,000 or $15,000, held, that this was not such inadequacy of consideration as to justify the court in setting aside the deed on that ground. (Affirmed by the court of appeals March term, 1874.)</p>

<p>Easement — possession — ejectment.</p> <p>A person, in whose favor an easement or servitude exists, cannot be disturbed in its enjoyment by an action of ejectment or writ of possession in favor of the owner of the land on which the easement is impressed. The action of ejectment is brought to recover the “possession ” of land; and although, in such action, it may appear that the plaintiff is the owner of the fee, yet he cannot recover the possession when the land is subject to an easement or servitude in favor of the defendant, which would be thereby disturbed.</p> <p>In such case the judgment should disclose the estate and interest of both parties, and that the plaintiff is entitled to the possession when the easement shall come to an end.</p>

<p>The action was brought upon a promissory note, $2,000, made by defendant, Bush, and indorsed by defendant, Beenan. The complaint was drawn under section 162 of the Code. The defendants, Bush and Beenan, demurred upon the ground that the complaint did not state facts sufficient to constitute^ cause of action.</p> <p>The plaintiff gave notice of application for judgment upon the demurrer, as frivolous under section 247 of the Code.</p> <p>The defendants did not appear td oppose the application, and no affidavit of good faith or of merits was presented.</p> <p>Judgment for the plaintiff upon the demurer, with costs, was ordered.</p> <p>thereupon moved for a further allowance of costs of five per cent upon amount claimed, under section 309 of the Code, and cited Witherhead agt. Allen (28 Barb., 662); King agt. Stafford (5 How. Pr. R., 30); S. C. [General Term], 6 id., 127); Fowler agt. Houston (1 C. R., 51); Anonymous (12 How. Pr. R., 317).</p>

Motion in the nature of an appeal from the action of the clerk of Jefferson county, adjusting costs in favor of the plaintiff, and refusing to allow costs to the defendants. The plaintiff, on a trial before a referee, recovered twenty-five dollars damages, and both parties presented bills of costs to the clerk for taxation. The clerk taxed costs for the plaintiff.

<p>Motion by defendant for a new trial on a case.</p>

Motion by defendant to set aside the judgment declaring void the marriage contract between the parties, entered esa parte by the plaintiff on the referee’s report, without application to the court, on the ground of irregularity.

This action was brought to recover a balance of account for work done and materials furnished by the plaintiff and John A. Schenck, as partners, for the defendant. The referee reported $63.23, and interest on the same from the 8th day of June, 1864, to be due to the surviving plaintiff. From the judgment entered on the report the defendant appealed.

The defendants, Cooper & Co., demur,'and claim that the circuit court has no. jurisdiction. The bill was filed with a double aspect: 1st. As an original bill. 2d. To review under section 2. First. The circuit court has full original jurisdiction under subdivision 3 of section 2, bankrupt law. (a) The order of district court allowing the debt gives Cooper & Co. an adverse interest touching the property of the bankrupt. It is an apparent lien upon the estate. Second.

Motion by defendant to set aside the judgment entered by default against him in this case on the ground that it is void for want of jurisdiction in the officer granting the order for publication of the summons. It will be necessary, in order to show the full grounds of the motion, as well as the opposition to it, to give the affidavits, &c., quite full, together with the briefs of counsel and the order of the court.

<p> Exemption —property sold on execution. </p> <p>An execution issued upon the recovery of a judgment for the purchase-price of a cow, which is by law exempt from execution, may be levied on property of the defendant in the execution and sold, which would be exempt by law from execution, if the judgment had not been recovered for the purchase-money of exempt property.</p>

<p>Mandamus — exceptions.</p> <p>A mandamus will not be issued against a judge, commanding him to settle a bill of exceptions in a particular manner, when, as to the manner, there is a dispute.</p> <p>The justice who presides at the trial must say whether or not an exception was tallen, and his return is controlling until further proceedings.</p>

This writ of certiora/ri is issued to bring before the court for review the action of the tax commissioners in correcting their assessment upon the capital stock of the relator. First.

<p> Oustody of child —public institution —protection. </p> <p>Where a father places his daughter, thirteen years of age, there to remain, under the care of a woman of notorious character living in a house opposite his own dwelling, and of whose reputation he could have advised himself without trouble, his conduct justifies the presumption that he is indifferent as to the destination and employment of his child, and unfit to be trusted with her care and maintenance.</p> <p>The law of the land is broad enough to protect children from the errors of delinquent parents, and will not fail, through its officers, to endeavor to prevent the injustice which would otherwise ensue. When a parent is derelict he becomes unworthy of the charge; his trust is forfeited and the law assumes it.</p> <p>In this case the application of the father was denied, and the child ordered to be placed in the institution, “ The Sheltering Arms,” there to remain until the further order of the court.</p>

<p>Appeal from a judgment against the plaintiff.</p>

This is an appeal from an order made by the Monroe special term on the 28th day of August, 1873, denying a motion made by the defendant for a new trial. The cause was tried before justice Dwight and a jury at the Yates circuit, in November, 1872, and the plaintiff recovered a verdict for $207.07.

This is an appeal by the defendant from an order of special term, setting aside' a report of a referee, upon the ground that the report was made outside of the jurisdiction of the court. The appeal papers show that an issue was formed in this action, and that if was referred to D. Holmes, Esq., to hear and determine.

The action was brought to recover the possession of personal property, of which the plaintiff claimed to be the owner. The defendant set up in his answer that he was the owner of the property in question by virtue of an alleged purchase of it from- one Joseph B. Sheridan, who was in possession of it at the time of the sale.

<p>Lease of hotel property—lien onfurnit/wre — alleged conversion.</p> <p>Where a lease of hotel property contained an agreement, on the part of the lessees, that a lien should be given by them to the lessor on all furniture which should be placed in the hotel, contemplating the execution of a further instrument to create a lien, such covenant can be enforced in equity, and the lessees be obliged to give the security provided for, to secure the payment of the rent.</p> <p>Where the assignee of the landlord, plaintiff, without having taken any steps to create the lien provided for in the lease, upon the property which had been placed in the hotel after the tenants had taken possession, subsequently took from them a chattel mortgage, covering the property in the hotel, to secure the sum of $5,000, moneys loaned by him to them; and, after the defendant had, in an action, recovered possession of said property under a second chattel mortgage, given by the lessees to it, the plaintiff assigned his mortgage to defendant for a full consideration paid to him, and the defendant thereupon sold the property upon both mortgages, realizing barely sufficient to satisfy both mortgages:</p> <p>Meld, that the evidence produced was insufficient to satisfy the court that, before the defendant took its mortgage, it had any knowledge of the provisions in the lease in plaintiff’s favor, in respect of the lien to be given by the lessees to the landlord; and no such notice was given by the plaintiff on a sale of the property.</p> <p>In this action, brought by the plaintiff for a conversion of the property by the defendant, by means of which the plaintiff, as is alleged, is unable to enforce his lien, held, that the complaint be dismissed," with costs.</p>

<p>The United States district court (Blatchford, D. J), in an action brought by John H. Platt, assignee of Simeon Leland <fe Oo., lessees of the Metropolitan hotel, to set aside certain conveyances of real estate by the bankrupts to Alexander T. Stewart, as preferential and void under the bankruptcy act of 1867, and also to set aside the levies made by divers execution creditors on the furniture of that hotel, and also to set aside certain chattel mortgages given by the bankrupts to Mr. Stewart, made a decree setting aside the said conveyances of the real estate (four houses and lots in Hew Fork city and a farm in Westchester county), and also holding the chattel mortgages to be invalid as liens on the said furniture or its proceeds (the same having been sold by order of court and paid into court), and also setting aside the levies of the said execution creditors. •</p> <p>The decree further provided that Mr. Stewart should account to the assignee for the rents, issues and profits of the real estate so conveyed to him, and specified in what mode it should be done, before a special master; and further provided that Mr. Stewart, within twenty days after the entry of a final decree in the cause, should execute and deliver a proper deed, the form of which should be approved by a special master appointed in the decree, to the assignee in bankruptcy, conveying and assuring to him the premises in controversy.</p> <p>It further provided that the proceeds of the furniture in court belonged to and should be paid over to the assignee in bankruptcy, but thereout should be paid a reasonable compensation to certain sheriffs who had levied on the furniture under certain executions which by the decree were set aside.</p> <p>From this decree Mr. Stewart appealed to the circuit court before the accounting was had, claiming that the decree was final. Two of the execution creditors also took appeals.</p> <p>Motion was now made on the part of the assignee to set aside said appeals and to dismiss them as premature; the decree not being final. The motion as to Mr. Stewart’s appeal was heard first.</p> <p>I. The decree appealed from is one rendered in an equity suit, brought by the assignee in bankruptcy of Simeon Leland '& Co.; it is therefore regulated.by section 8 of the bankruptcy act.</p> <p>■ II. In the following cases it has been held that such appeal cannot be taken except from a final decree : Glark agt. Iselin (9 Blatchf. C. C. Rep., 199); In Re Casey (10 id., 376).</p> <p>III. So far as the defendant, Stewart, is concerned, the decree in question appealed from is not a final decree. It provides for an accounting of rents, issues and profits, which has not yet been had (Craighead agt. Wilson, 18 How., 199; Perkins agt. Tourinquet, 6 id., 206).</p> <p>IV. A decree determining the rights of the parties, and referring it to a master to take an account of the rents and profits, &c., upon evidence, and from an examination of the parties to make or not to make allowances affecting the rights of the parties, and to report his results to the court, is not a final decree. In chancery a decree is interlocutory whenever an inquiry as to matter of law or fact is directed preparatory to a final decision (1 New, 322).</p> <p>Although it is true that when a decree finally decides and disposes of the whole merits of the cause, and reserves no further question or direction for the future judgment of the court,'so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree (7 Paige, 18; Beebe agt. Russell, 19 How. U. S. S. C. R., 283).</p> <p>Y. The decree as to the four houses and farm is confessedly not a final decree, because it directs an accounting to be had by A. T. Stewart of the rents and" profits received by him; such accounting is to be had on principles of charges and discharges set forth in the decree.</p> <p>VI. The decree as to the $25,000 in the custody of the court, on which A. T. Stewart claimed a special lien by virtue of his chattel mortgages, which- last were declared to be invalid, is also not final, because there is a reference ordered to ascertain the Mens off the sheriff thereon- by virtue of levies made by him under certain executions- on the personal property afterward sold and turned into the funds now in court.</p> <p>This lien is declared to- be valid on the fund in court in favor of the sheriff, and- has to be ascertained before Hr. Stewart .can overturn the decree on appeal.</p> <p>It is therefore evident that, so far as Stewart is concerned, the decree is not final.</p> <p>VII. So far as the execution creditors are concerned, in one sense the decree is final, for it disposes-of their rights-absolutely; but, so far as the sheriff’s fees are concerned, and the ascertaining-them is concerned, it is not final.</p> <p>The case of Forgay agt. Conrad (6 How., 201) is limited and explained in Craighead agt. Wilson (18 How., 199), but reaffirmed in 7 Wallace, 342.</p> <p>VIII. If the decision'is not final* as to Stewart, one or more of the other defendants cannot1 appeal. All parties must join in it. (7 Peters, 399).</p> <p>A case must not come up in fragments (3 Peters, 307; 3 Dall., 188).</p> <p>IX. This appeal being, from, the district- to- the circuit court, it can hardly be said to bear the same relation that appeals from the circuit court to the supreme court bear.</p> <p>In the latter case, on affirmance or reversal, the supreme court invariably sends its mandate down to the circuit to execute its decree or decisions. But in the former set of appeals the case is always - retained in the circuit, and there seems to be no warrant for the latter to order the accounting to be taken anew.</p> <p>That can only be done in the district court; and the decree must be in all respects final when it goes up from the district to the circuit, who simply affirm, or reverse, or modify. After the accounting is had in the district court for whatever damages the appellee sustains, by loss of interest or otherwise, the only recourse is to be had to the bond given on the appeal.</p> <p>Therefore, the decree cannot be final in the district court until all its behests have been carried out.</p> <p>Henry F. Daxies, for A. T. Stewart, relied on Forgay agt. Conrad (6 Howard U. S. S. C. R., 201, and 7 Wallace, 342). . . '</p> <p>A. H.' Dana, for Muller & Conger, execution creditors, relied on the fact that the decree was final as to his clients, and claimed that this appeal was good.</p> <p>F. M. Cullen, for Galway & Son, other execution creditors, made the same points.</p> <p>After advisement, the following opinion was delivered.</p>

<p>Motion to punish defendant for contempt in supplementary proceedings.</p>

<p> Sale of stock—regularity of proceedings—invalid sale. </p> <p>All the material steps of a proceeding to sell out a shareholder of a stock company for non-payment of an assessment, when questioned, should be clearly and satisfactorily proven; especially so important a one as the giving of notice of the time and place of sale to the person to .be affected, and whose rights are to be cut off.</p> <p>Where checks of the parties from whom assessments were due were requested by the treasurer of the company, the tender in that form must beheld sufficient, especially so, where no objection was made at the time of the tender to payment by check.</p> <p>Where tender by check was made by a shareholder, for the amount of his assessment, to the president of the company on the morning.of the day of sale, and before the sale, with directions not to have his stock sold for the assessment, held, that this was sufficient to prevent the sale. And where the sale of the stock was made, notwithstanding such tender and directions, and was bid in by the president, individually, who claimed to purchase it for himself, held, that the sale was invalid ; that the president, the purchaser, acquired no title to himself, and the sale should be set aside.</p>

<p>Appeal from order of special term granting- additional allowance of costs.</p>

Motion by the defendant, Wilson Garrison, for a perpetual stay of proceedings supplementary to execution on the judgment in this action, and for a perpetual stay of all proceedings against said Garrison, to collect said judgment and for an order declaring the judgment satisfied. The facts are sufficiently stated in the opinion.

<p>Joint judgment debtor—to show cause—section 375, Gode.</p> <p>Where a joint judgment debtor is summoned to show cause why he should, not be bound by the judgment rendered on contract, he cannot set up as-a defense to the original cause of action, the statute of limitations.</p> <p>Section 99 of the Code provides that “ an action (on contract) is commenced as to each defendant when the summons is served on him, or on-a co-defendant who is a joint contractor.” If the cause of action was not. barred by the statute when it was originally commenced, the co-defendant. summoned to answer cannot interpose it as a defense, because the action was commenced against both defendants at the same time by service on one.</p>

Motions to set aside orders granted by the county judge of Chemung county, directing the service of the summons in each action by publication, on the ground that the affidavits were insufficient to warrant the same. The affidavits were precisely alike in each case, so far as the questions involved in these motions are concerned.

<p>This is an appeal from an order of the court at special term, denying the motion of defendant to set aside a judgment' of divorce, entered September 3, 1863.</p>

<p> Action for mortgage foreclosure—offset—not allowed. </p> <p>In an action by an executrix to foreclose a mortgage for moneys which became due after the death of the testator, the defendant cannot offset any debt due from the testator to him, although the offset existed at the time of the testator’s death.</p>

This case comes before the court upon a submission under section 372 of the Code. The plaintiff is the owner of certain real property in the city of Albany.

Exceptions ordered to be first heard at general term. The action was brought under the statute for the negligent killing the plaintiff’s intestate. The deceased was a passenger on a freight train upon the defendant’s railroad going west, and was killed at Tioga Centre in a general smash up of the train caused by the displacement of the switch rails, which occurred July 30, 1870.

This action is brought to enjoin the defendants from carrying on any kind, of trade or business on certain lands in the city of New York. The plaintiffs claim that the defendants have violated in that respect a covenant made by Joseph D. Beers, the original owner of the- property, with the plaintiffs, and through whom the defendants derive title.

<p> Balones of city officers—authority for payment. </p> <p>The power to do a specific act, conferred hy the legislature, is exhausted when that act is performed.</p> <p>A reference in an act of the legislature to a fact, does not render valid the authority under which that fact had come into existence. The authority to increase the pay of an official cannot be established hy implication of law; it must he by direct and positive enactment.</p> <p>The fact that an appropriation of money, made hy the legislature for the payment of the salaries of certain officials, is sufficiently large to cover the sum claimed hy one of them, is no authority for its payment.</p>

<p> Service of supplemental complaint—right not absolute. </p> <p>. It is not proper to serve a supplemental complaint, without leave of the court.</p>

The plaintiffs originally obtained an injunction, which was, on motion, dissolved and the action subsequently discontinued. The defendants then obtained an order of reference, to assess the damages sustained by them by reason of the injunction. The referee reported their damages at the sum of $650, and, on motion, his report was confirmed with ten dollars costs.

Action by the executors to obtain the construction of the will of Henry Bowen, deceased. Held: in Ka/ne agt. Astor (5th of Sand., 467), that it is a paramount principle that the court shall carry out the general intent of the testator; and where a particular word, sentence or provision is repugnant to the general intent and design of the whole will, such word, sentence or provision must give way, rather than sacrifice the…

This was an action of replevin, brought by the plaintiff against the defendants to recover the possession of five city of Poughkeepsie bonds of $1,000 each, held by the defendants, and claimed by the plaintiff as its property. On the night of the 8th or morning of the 9th of October, 1869, a' robbery took place at the office of the plaintiff; them safe was blown open, and these bonds and other securities were stolen therefrom. The form of the bond appears in the ease.

<p> Misconduct of referee—report set aside for i/rregvk/rity. </p> <p>Where a referee, after the cause has been tried by him, summed up and submitted to him for decision, approaches the party (plaintiff) against whom judgment is finally rendered, suggesting a proposed sum “ as having been discussed or spoken of ” by his antagonist’s counsel, with the intimation that “ there were matters in evidence in the case which' led him to believe that, if he did give judgment for the defendants, it would necessarily be for a large amount,” and that “ it might be well to think the matter over in that light, and perhaps it might be for their interest to settle it; ” it is the duty of the court to interfere and set aside the report of the referee for such irregularity. (This decision affirms that rendered at special term, Fancher, J., 44 How. Pr. R., 357).</p>

• Appeal from an order of the general term of the first judicial district, affirming an order setting aside a judgment entered on the report of a referee, for his alleged misconduct.

<p> D&m/wn'er—to answer—power of attorney. </p> <p>Where an answer sets up a power of attorney authorizing,the attorney to do and perform all necessary acts in and about the management of the business of the principal as an importer of wines and liquors, with full power and authority in the premises, followed by an averment that the principal left the attorney in full and complete charge and control of his business, with directions to continue and carry on the same durin the principal’s absence:</p> <p>Held, that this fact, if proved, showed an intention to confer something more than a mere naked power upon the attorney. He could make and thus be compelled to meet business engagements. There being no fraud or mismanagement on his part, he should be prdjihcted for acts done in good faith and without knowledge of the revocation of the authority (by death) under which he acted.</p>

This action was tried before Mr. justice Freedman and a jury on the 19th of February, 1872, and the plaintiff’s complaint was dismissed. The court ordered the plaintiff’s exceptions to be heard in the first instance at general term. The plaintiff was the owner of a note for $1,200, made by Enoch Morgan’s Sons, dated the 17th day of November, 1870, and payable to the plaintiff’s order in three months. Grant & Ascough were merchants, doing business in New York city.

<p> Mandamus—assignment of patent—county charge. </p> <p>Where the board of supervisors purchase a right to use in the register’s office a patented system of indexing the public records, which is a proper county charge, and which they can properly audit as such, they may also purchase and take an assignment of such patent, to secure the county forever from the risk of having to pay over again for the use of such invention, which is also a proper county charge, which they can audit, and which the county will be required to pay.</p>

The elaim.of the relator herein was audited anti allowed by the board of supervisors on the 8tli day of December, 1873, and ordered to be paid by the comptroller; a certified copy of the resolution of the said board, and the necessary voucher thereto attached, were delivered to the respondent on the 10th day of December, 1873.

This is a proceeding on the part of the plaintiff, to take the testimony of William Scott, president, ard David M. Van Hoevenbergh, cashier of the defendant, under article 5 of title 3, chapter 7 of part 3 of the Revised Statutes.

<p>Appeal from a judgment rendered at special term in favor of the defendants.</p>

<p>Application for a mandamus to compel the comptroller of the city of'ISTew York to pay the relator’s claim. ■</p>

<p>Appeal from order denying motion to vacate order of arrest.</p>

The plaintiff, having a mill privilege in the city of Eome, supplied by water taken by means of a dam and an artificial channel from the Mohawk river, brings this action to restrain the defendant, the city of Eome, from taking the waters of the Mohawk river at a point called the Eidge, for the purpose of supplying the defendant’s “ water-works ” with pure and. wholesome water.

This action was brought to recover a statute penalty of titty dollars for taking down and destroying a notice of sheriff’s sale. The judgment was taken by default before the justice in the court below, and the appeal therefrom was brought upon questions of law only. Notice of appeal contains eight grounds of error. 4th, 5th and 6th grounds of error are as follows : “ 4th.

<p>Deposition of party to am, action—power of court—section 401 of the Code.</p> <p>The court has no power to appoint a referee to take the affidavit or deposition of a party to an action on a motion, on behalf of the adverse party, under the seventh subdivision of section 401 of the Code, chapter 8, which falls under the title of “motions and orders.”</p> <p>The 889th section of the Code, chapter 6, the title of which falls under the “ examination of parties,” positively forbids any action in aid of the prosecution or defense of another action, or any examination of a party in behalf of the adverse party, “ except in the manner prescribed by this chapter.”</p>

<p>Motion to discharge from a/rrest— laclies.</p> <p>A defendant may move for his discharge from arrest, even after judgment, if within twenty days after the service of the order of arrest.</p> <p>Where the defendant, residing in a foreign country, was attending as a witness, duly'subpoenaed, before the referee on the trial of a cause, and after the reference was closed, and defendant about leaving for his home, he was arrested in an action, and failing to claim his personal privilege to the sheriff, and failing to demand from the county judge (who issued the order), as he had a right, to his personal privilege, but, on the contrary, acquiesced in the arrest by his silence in respect to his personal privilege, and, in addition to that, entered into the usual undertaking, and then awaited some twenty-two days before serving the motion papers for an order discharging the arrest:</p> <p>Held, that the defendant must be held to have waived his “ personal privilege” and acquiesced in the arrest. He had not been free from laches in his efforts to get rid of an arrest to which he had a valid objection, had it been taken in time.</p>

<p>This was a motion to set aside a judgment entered upon a forfeited recognizance, with ten dollars costs.</p>

An action of ejectment tried at the Cattaraugus* county circuit, without a jury, in May, 1874. The premises are situated in the town of Bucktooth and consist of about 400 acres. They are wild and unoccupied, and uncultivated lands.

Action of ejectment to recover possession of lot thirty-five, township one, range seven, in the town of Salamanca, late Bucktooth, in the county of Cattaraugus, tried at the Cattaraugus circuit, May 18, 1874, before the court, without a jury.

<p>Appeal from, judgment recovered on trial before the court at special term.</p>

Motion by the defendant to be relieved from a judgment of $14,449.11, entered in favor of plaintiff July 19, 1862. Upon the 29th of January, 1873, justice Burkett granted an order for the defendant to appear and be examined. The defendant in his • affidavit alleges that he and the plaintiff in June, 1870, at the Astor House, had an interview, in which the plaintiff asserted he had recovered a judgment for $14,000 against the defendant.

Action to partition several different parcels of land. The defendant, Marietta Miller, set up in her answer the exclusive title to two of the parcels, under the last will and testament of her deceased father. The plaintiff and the other defendants contended that title to the parcels in question did not pass under the terms of the devise. This was the only question in the case. The other facts are Sufficiently set forth in the opinion of the court.

Motions for a peremptory writ of mandamus, requiring the auditor to audit and the comptroller to pay the claim of the relator.

<p> Trial of issue of law—in the proper county. </p> <p>Where there is a demurrer to the whole complaint, the issue of law thereon must he tried in the county designated in the complaint. It cannot be tried as a mere motion at any special term in the judicial district.</p> <p>The court may change the place of trial, when the county designated in the complaint is not the proper county; and this irrespective of issues, whether of law or of fact. If changed, the trial must be had in the county to which it is changed. If. not changed, the trial must be had in the county designated in the complaint.</p>

<p>Action upon a judgment recovered in Venango county-court of common pleas in the state of Pennsylvania.</p>

Memoir to confirm the report oí a referee to whom it was referred to ascertain damages. The plaintiff alleged that he was the owner in fee of certain premises in possession of his tenants.

<p> Metra allowance of costs. </p> <p>Where counsel, at or previous to the trial, agree that the amount for which the plaintiff claims to recover in the action shall be fixed at a certain sum, this sum will form the basis for an extra allowance of costs.</p>

In the forepart of 1870 the plaintiff was the owner of a farm, and on the -fourteenth,, of April in that year signed a note for one .Command to secure the purchase-price of a horse, under the verbal arrangement that the plaintiff should have the right to and the possession and ownership of Command’s share of the crops which he might raise that season on plaintiff’s farm until this and other advances should be paid.

<p>Appeal from the general term of the court of common pleas. Reported below, 45 Howard, page 152.</p>

<p>Application for a peremptory mandamus by the relator to compel the respondent, as mayor of the city of New York, to countersign a warrant drawn by the comptroller of the city pursuant to section 7 of chapter 702 of the Laws of 1872, entitled “ An act to improve and regulate the use of the Fourth avenue, in the city of New York.”</p>

<p>Mutual mistake of fact— sale of a worthless note— receiving it back.</p> <p>Where a promissory note was delivered by the defendants, note brokers, to the plaintiff who was also a note broker, for sale, and the plaintiff sold the note to a customer of his, all parties believing at the time that the drawers of it were solvent, when in fact they were then insolvent, and the purchaser on learning that fact immediately called upon the plaintiff with the note, and the latter received it back and returned to the purchaser the consideration paid for it:</p> <p>Held, that the defendants were liable to the plaintiff for the amount of ' ■ the note; for, in accepting a return of the note and repaying the money to the purchaser, the plaintiff did no more than the defendants, who had acted through him, were bound legally and in conscience to do— the plaintiff had succeeded to all the rights and remedies of the purchaser.</p>

This was a motion to change the place of trial in this action from, the county of Schuyler to the county of Onondaga, upon the ground that the latter was the proper county. The moving papers show that the plaintiff is a corporation organized under the laws of the state of Pennsylvania; that the defendant is a resident of Onondaga county, and that demand of a change of venue to the proper county was duly made.

<p> What constitutes a partnership as to creditors—interest in the profits </p> <p>Held, that by the agreement such person had a specific interest in the profits as profits’, and became a partnerr as to the creditors of the firm and as to third persons. (Church, Oh. J., dissenting.)</p> <p>Where an agreement was made by a partnership firm with a third person, that in consideration of a loan made by the latter to the firm of a certain sum of money, for- one year, the firm would pay such person one-third of the profits of their business to be settled half yearly; and at the end of the year take him in as a partner, if the firm and he should feel satisfied, on his making further investments and putting in more capital:</p>

<p>Motion for an injunction: use of firm name after dissolution of copartnership r use the words “& Co.” where there is no partnership.</p>

<p>This is a motion made under chapter 322 of the Laws of 1874, for a certificate or order to authorize an appeal to the court of appeals.</p> <p>The papers used upon the motion state that the action was to enforce the liability of the defendant, as a stockholder of a manufacturing company, organized under the laws of this state, for the debts of the company.</p> <p>On the trial, there was proof that at the time the indebtedness accrued, the defendant was a “ trustee ” of the corporation,</p> <p>■Such proof, the court, at the trial and at the general term, held was presumptive evidence that the defendant was a stockholder; the act requiring that a trustee should be a stockholder; and the defendant excepted to the decision.</p> <p>That is the only question which it is claimed should be reviewed by the court of appeals.</p> <p>The judgment was less than $500.</p>