Volume 47 — New York Supreme Court Reports

MotxoN on behalf of the petitioner to confirm the report of commissioners appointed to determine whether the petitioner’s proposed railways ought to be constructed or operated, and motions on behalf of owners of property on streets proposed to be used by the company, to vacate the order appointing the commissioners.

Tbe appellant claims to be a corporation duly incorporated by commissioners appointed under the provisions of chapter 606 of the Laws of 1875, and that such commissioners laid out for it a route upon Chambers street, and the other streets mentioned in the complaint, upon which defendant proposes to construct and operate its street surface railway.

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

<p>Appeal from an order directing an attachment to be issued to bring the defendant before the court, to answer for his alleged disobedience of orders requiring him to appear and be examined as a witness at the instance of the plaintiff, before trial.</p>

<p>Contempt — punishment for, in an action or special proceeding — what facts must appea/rfrom the order— Code of Civil Procedure, secs. 9,14, 2083, 2266, 2281.</p> <p>Upon tie return to a writ of habeas corpus it appeared that one Simpe, an attorney, lad leen committed under an order adjudging lim guilty of contempt in laving willfully disoleyed an order directing lim to deposit $6,500 witl tie clerk of tie court, and fining lim tlat sum for tie indemnity of tie petitioner in tie proceeding, and ordering tlat le be committed to tie county jail until le paid tie fine.</p> <p>Meld, tlat as tie punislment exceeded tlat wlicl tie court was autlorized to inflict by section 9 of tie Code of Civil Procedure, for a criminal contempt, it was to le assumed tlat tie proceedings were instituted under tie provision of . tie Code autlorizing tie punislment of a person for a contempt in a civil action for misconduct by which a right or remedy of another may he defeated, impaired, impeded or prejudiced.</p> <p>That assuming the order to have been made under such latter provisions, it was void because no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss or damage thereby.</p>

<p>Valuation of the claim, of a policyholder of an insolvent life insuramce compomy — when it should he valued as a death, claim,.</p> <p>An order was made directing a claim, under a policy issued by the defendant, to be filed with the receiver as of August 15, 1883, and directing a reference for its valuation. Before the hearing the person upon whose life the policy was issued died, and evidence was given tending to prove that at the time when the company became insolvent and suspended its business he had attained an age and had become subject to a mortal disease which would have precluded a reinsurance or further insurance of his life by any life insurance company in good standing. This disease continued until the time of his death; and was in part the cause of that event. It was shown upon the hearing that no disturbance in the accounts or dividends of the receiver would be made by valuing this as a death claim, and that it could be provided for and disposed of as such without substantial injustice to other claimants.</p> <p>Held, that the referee did not err in valuing the claim as a death claim.</p>

<p>Appeal from a judgment of the Wayne County Court, entered upon a verdict in favor of the defendant, and from an order denying a motion for a new trial made on a case.</p>

<p>Game laws —power of the game protectors to bring action's — right of, to receive a share of the surplus of moneys recovered —1880, chap. 591, as amended by chap. 317 of 1883 — duty of the district attorney to give a certificate.</p> <p>Section 1 of chapter 591 of 1880, as amended by chapter 317 of 1883, authorizes the governor to appoint game and fish protectors, to enforce the statute for the preservation of game, and to bring or cause to be brought actions to recover penalties, and directs that “ such actions may be brought in the name of the people, in the like cases, in the same courts, and under the same circumstances as they might now or may hereafter be brought by any individual, under or by virtue of any existing, or hereafter enacted, statutes for the protection of deer, game and fish, or any of them.” The act then directs that the district attorney of any county shall, at the request of any of such protectors, bring actions in the name of the people, to recover penalties for a violation of the game laws, and that witness and other fees and disbursements, and full costs, without regard to the amount of the recovery, shall be included in the judgment.</p> <p>It further directs that all money necessary for witness fees and disbursements shall he advanced by the county treasurer, and that all moneys l'ccovered, except costs, which are to belong to the district attorney, shall be paid to the county treasurer; one-half of the said moneys, after deducting all outlays-or expenses made by the county, to be paid into the State treasury, and the remaining one-half of all such moneys, over and above the amount necessary to reimburse the county for any outlays or expenses paid out by the county treasurer under this act, shall be paid to and belong to the game and fish protector who brings, or causes to be brought, the action or proceeding in which such fine or penalty shall be recovered, and shall be paid to him by the county treasurer, within thirty days after the same shall be received by said county treasurer from the district attorney, upon the certificate of the district attorney that such action or proceeding was brought, or caused to he brought, by such fish and game protector.</p> <p>Upon an appeal from an order denying a motion made by the relator, a game protector, for a writ of mandamus compelling a district attorney to sign a certificate, as required by the said act:</p> <p>Held, that the act did not relate to criminal proceedings commenced by indictments, as no authority to institute, or to cause to be instituted, such proceedings was conferred upon the game protectors.</p> <p>That in order to ascertain the sum, to one-lialf of which the game protector was entitled, the disbursements properly incurred must he first deducted from the amount collected; such disbursements being those only which were incurred in the actions in which the money to be divided was recovered.</p> <p>That these questions were to be determined by the county treasurer and not by the district attorney, and that the relator was entitled to the certificate of the district attorney as to the actions, other than those commenced by indictment, in which the moneys in question had been recovered,</p>

<p>Appeal by the plaintiff in each action from an order entered in Monroe county, made by a justice of this court, on motion, vacating an ex parte order made by him in supplementary proceedings requiring the defendant Taylor to appear and be examined concerning his property.</p>

<p>Pleading — improper joinder of causes of action— Oode of Omil Procedure, sec. 484.</p> <p>Tile complaint in this action contained two causes of action, the first of which alleged that the plaintiff bet money with the defendant upon the event of a horse race and lost it. The second alleged that he was induced to make the bet by false representations respecting the horse that won the race, made by the defendant and others with whom the defendant conspired to defraud the plaintiff.</p> <p>Held, that as the first cause of action was on contract and the second in tort, and as, although arising out of the same transaction they could not.be united because not belonging to either of the subdivisions specified in section 484 of the Code of Civil Procedure, a demurrer to the complaint was properly sustained.</p>

<p>Practice — when an administrator is personally liable for the costs of an unsuccessful action brought by him— Code of Civil Procedure, sec. 1814.</p> <p>This action was brought by the plaintiff, as administrator with the will annexed of one Warren Buckland, to recover property alleged to have belonged to the deceased. The property consisted of a real estate mortgage and a promissory note, which were executed and delivered to Matilda Buckland, the widow and executrix of Warren, after the latter’s death, being payable by their terms to her personally and individually, and being claimed to belong to her in her own right under the will of her husband.</p> <p>Held, that the plaintiff having failed in the action was chargeable personally with the costs thereof.</p> <p>That the action was not brought “ upon a cause of action belonging to him in his representative capacity,” within the meaning of section 1814 of the Code of Civil Procedure.</p> <p>Thompson v. Whitmarsh (1 East. Rep., 719, Ct. of App.); Ferris v. JDisbrow (23 N, Y. Weekly Dig., 330) followed; Bean v. Txoseboom (37 Hun, 310) distinguished.</p>

Appeal by Franklin Spaulding as assignee of Witmer and others from an order and judgment of the Niagara County Court, directing him to pay a certain sum of money to Oliver G. Hertzog, the petitioner herein, with costs.

<p>Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Erie Circuit and from an order denying a motion for a new trial made on the minutes of the court.</p>

<p>^Reference of a claim against an estate — right of the prevailing party to recover Ms disbursements— Code of Procedure, sec. 317, as amended by chapter 479 o/1851.</p> <p>The prevailing party, upon the reference of a claim, against the estate of a deceased person, is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.</p> <p>That clause of section 317 of the Code of Procedure, as amended by chapter 479 of 1851, which gives this right, is still in force.</p> <p>Hall v. Edmunds (67 How., 203), and Button v. Newton (2 How. Pr. [H. S.], 56) followed ; Daggett v. Mead (11 Abb. N.C., 116); Miller v. Miller (32 Hun, 481) overruled.</p>

<p>Appeal from an order of the Steuben County Court denying defendant’s motion to vacate an order made by the county judge, in supplementary proceedings, requiring him to appear before a referee on a day named and be examined, and also directing the defendant to appear at a subsequent day for examination.</p>

<p>Appeal from a judgment in favor of the defendant, entered on a verdict directed by tbe court at the Erie Circuit.</p>

Appeal by the plaintiff and the defendant, the Farmers’ Loan •and Trust Company, from an order of the Allegany Special Term, authorizing the receiver to issue certificates of indebtedness and making them a lien on the mortgaged property, prior to the lien secured by the mortgages thereon.

Appeal by the plaintiff from an interlocutory judgment, entered upon the decision of the Monroe Special Term. Held: as a matter of law, that the assignment from the deceased to Abraham Hosenburg vested in the latter the title to all the personal property described therein; that at the time of his death the deceased was indebted to vai’ious persons, the exact amount of which did not appear, and that as against such persons the assignment was…

Motion by the defendant for a new trial, based upon exceptions taken on the trial at the Allegany Circuit, ordered to be heard, in the first instance, at the General Term. The defendant, a foreign fire insurance company, with its chief office located in the city of New York, on the 16th of January, 1882, issued its policy to the plaintiff, insuring his dwelling-house, located in the village of Richburg, Allegany county, against loss by fire, in the sum of $250.

The complaint alleged that the plaintiffs were copartners doing business under the firm name of E. W. Gurnee & Co., and set up a cause of action founded upon three negotiable promissory notes, all made by tbe defendant Charles ~W. Beach, and each payable to the order of Lewis Jessup. Each note is set forth in the complaint as a separate and distinct cause of action, and in separate paragraphs numbered one, two and three.

The plaintiff being insolvent, on the 2Yth day of March, 1884, made a general assignment, for tbe benefit of all his creditors, to the defendant, who received the assigned property into his possession, and proceeded to administer the same according to the terms of the trust.

On tbe 15th day of December, 1884, the defendants in this action made a general assignment of all their property, both real and personal, to Hiram Jerome, in trust for tbe benefit of tbeir creditors. Subsequently and on tbe 7th of January, 1885, the defendants confessed a judgment to tbe plaintiff, and judgment was on that day entered in tbe sum of $3,449.52.

Tbe action was a judgment creditor’s suit, for the purpose of setting aside an assignment made by Orsell H. Hartson and Chancellor L. Hartson, on the 11th day of June, 1884, to one William Hartson, in trust, for the benefit of the creditors of the assignors. The property assigned was insufficient to pay all the debts of the assignors who were manufacturers of lumber, and owed their employees for wages and salaries.

The matter was referred to a referee to take proofs on tbe questions of fact in dispute, and to report tbe same with bis opinions thereon to tbe court as to tbe facts and the law of tbe case. Tbe referee’s report was confirmed at Special Term, and from tbe order of confirmation Arthur P. Elagler, tbe assignee, appealed. Tbe fact in issue and tbe character of tbe exceptions on which tbe appellant relies for error are stated in tbe opinion.

Hopkins, Brigliam Clark and Robert Dunbar, commissioners to appraise the lands in question. The order of their' appointment was based upon the petition of the railroad company, which was in the usual form of petitions, under the general railroad act for condemning lands of which the petitioner is unable to acquire title by purchase.

<p>Negligence — what rishs a servant assumes when entering the employment of a railroad company.</p> <p>The plaintiff was employed hy the defendant to work in its yards in breaking up and switching cars from one 1rack to another, it being part of his business to go up to the Lackawanna spur, which was a track leading from the defendant’s road to the Lackawanna road, and do the work necessary to transfer cars from one road to the other. Where the roads cross each other there are placed at the intersection of the inner rails what are called frogs, opposite to which are placed guard rails to keep the cars from leaving the track at the opening in the inner rails. These guard rails are from twelve to fifteen feet long and have to he placed from two and one-half to three inches from the main rail at the frog, and from four to five inches therefrom at their ends.</p> <p>It was claimed hy the plaintiff that while employed on the evening of December 16, 1883, in transferring cars at the Lackawanna spur, his heel slipped in between the guard rail and the main track, and that before he could extricate himself the car passed over him cutting off his legs. The evidence was conflicting as to whether or not it was the duty of the defendant to have caused blocks to be placed between the guard rails and the main track. The plaintiff knew at the time of entering into the defendant’s service that such blocks were not used in its yard.</p> <p>The defendant’s counsel requested the court to charge that “ the plaintiff having entered the service of the defendant with its guard rails unblocked and in practically the same condition that the guard rail in question was at the time of the accident, and the guard rails being in plain sight and the plaintiff having continued in the service of the defendant with the guard rails in that condition, he assumed the apparent risk incident to their existence in the performance of his duty, and cannot recover;” and also that “the accident which caused the plaintiff’s injuries was, under the circumstances of this case, a risk which he assumed and for which the defendant is not liable.”</p> <p>Held, that the court erred in refusing so to charge.</p> <p>(Bradley, X, concurred in the result, upon the ruling of the trial court to the effect that if the plaintiff did not have actual knowledge of -and had not seen the particular guard rail at which he received the injury, he was for that reason permitted to recover although he was familiar with other guard rails in the yard in like manner constructed.)</p>

<p>Corporation— action by a stockholder to prevent waste of its funds — when it need not be preceded by a demand upon the officers of the company to bring suit —power of the board of directors — when they cannot terminate a contract, terminable at the election of the company — they cannot fix their own salaries.</p> <p>In an action brought by certain stockholders of a corporation to set aside as fraudulent notes given by tbe corporation, and a judgment entered thereon, and an order appointing a receiver of tbe corporation, it is not necessary to show that tbe plaintiffs have first demanded of tbe officers of tbe company that they should bring the action, when it appears that the parties charged with the misconduct included the president, secretary, treasurer and a director of the corporation, and that the relief sought was the vacating of claims made by and allowed to themselves by the directors.</p> <p>Prior to an annual election held in 1883 the company had entered into a contract with one Sargent, by which, in consideration of the transfer to him of 300 shares of the capital stock of the company, he agreed to pay into and furnish the company with $5,000 in cash and, at his own expense, to construct and furnish apparatuses for those desiring the same for which he was to receive the royalties collected thereon for one year.</p> <p>The contract also provided that in case the company should choose to consolidate with any other company, it should have the right to terminate the agreement, at any time, by reimbursing Sargent for his expenses incurred in placing the apparatus, relieving him from all guarantees outstanding and paying him the sum of $5,000. After the election, at which the defendants were chosen directors, and the said Sargent was made president, a resolution was passed terminating the agreement, Sargent receiving a promissory note of the company for $6,253. (2, $1,252.12 of which was for the disbursements made by him under the contract, and $5,000 of which was for the sum which the company had agreed to pay in case it should decide to consolidate with another company and terminate the agreement.</p> <p>Held, that in the absence of any authority conferred upon them by a meeting of the stockholders, authorizing a consolidation of the company with some other company, the directors had no authority to terminate the contract or give the company’s note to Sargent.</p> <p>The day after the election of the directors a meeting was held at which five directors were present. The defendant Sargent was elected president and treasurer, and the defendant Puffer secretary. ' On motion of the defendant Markham, a salary of $5,000 per annum was unanimously voted the president, and on motion of one Pfaudler, a salary of $3,000 was voted to the secretary.</p> <p>2eld, that as it appeared that the officers who were to receive the salaries took part in the proceeding, the action of the board was invalid.</p> <p>It seems, that a board of directors cannot, in the absence of express authority so to do, fix the salaries to be paid to members of the board while acting as officers of the company.</p>

<p>Appeal from an order of tbe Erie Special Term, denying the-plaintiffs motion to compel the clerk of Cattaraugus county to tax Ms costs and disbursements in the above entitled action. '</p>

<p>Appeal from a judgment, entered upon a verdict rendered at tbe Monroe Circuit, and from an order denying a motion for new trial made upon tbe minutes.</p>

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

Appeal by the 'Western Union Telegraph Company and certain of the outgoing directors of the Rochester District Telegraph Company from an order of the Monroe Special Term denying a motion to vacate and declare void the election of directors and' officers of the Rochester District Telegraph Company.

<p>Appeal from an order of the Monroe Special Term, quashing writ of certiorari upon the ground that the writ was not made returnable at a Special Term within twenty days after the service thereof, as provided by section 2132 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury at the Monroe Circuit, and from an order denying defendant’s motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

Appeal by the plaintiff from an interlocutory judgment, entered' upon the decision of the Cattaraugus Special Term, overruling-a demurrer interposed to an alleged counter-claim of the answer.

Appeal by the defendant from a judgment, entered on a verdict rendered at the Orleans Circuit and from an order denying a motion fora new trial made upon the minutes of the trial judge.

Tbe action was brought upon an undertaking made on conviction of the defendant William B. Shelley, as a disorderly person, for abandoning his wife and neglecting to provide for her according to bis means. The plaintiff recovered in tbe Municipal Court $500. Tbe County Court affirmed tbe recovery.

Wilbur a claim made by her against the estate of Enos Warren, deceased. In 1866 one Loucks conveyed to Riley Wilbur ninety acres of land for the expressed consideration of $3,600. And in 1876 the grantee and his wife, Betsey B. Wilbur, gave a mortgage on the premises to one Miller to secure the payment of $2,400.

Appeal by tbe defendant from a final judgment, entered upon tbe decision of tbe Niagara County Court, overruling a demurrer to tbe complaint, after a default, in compliance with an interlocutory judgment entered on sucb decision.

Appeal by the plaintiff from a judgment, entered in Allegany county on the report of a referee in favor of the defendants.

Tbis action was commenced in 1876; was first tried in 1878, when tbe complaint was dismissed. Tbis judgment was reversed and a new trial was granted by tbe General Term in October, 1881. Tbe second trial was bad in 1882, and resulted in a judgment for the plaintiff, wbicb was affirmed by tbe General Term, and on appeal to tbe Court of Appeals was reversed and new trial granted in May,. 1885.

The action was brought to recover penalties for selling spirituous liquors without a license. The complaint charged the sale by the defendant of strong or spirituous liquors or wines without license in the town of Hanover, county of Chautauqua. The defendant by his answer denied such charge. The plaintiff recovered a verdict for $150.

Proceeding by certiora/ri to review an assessment made by the assessors of the town of Niagara against the relators on lands known as the Goat Island property.

The will of Timothy Clark, deceased, was admitted to probato and record by the surrogate of Genesee county. And on an appeal taken by the contestants to the General Term of this court, the decree of the surrogate was reversed, and a trial by jury directed of the question, “ Was the execution of the will procured by unduo influence?” The trial was had and the jury, by their verdict, answered in the affirmative.

Appeal by tbe defendant from an interlocutory judgment, entered upon tbe decision of tbe Erie Special Term, overruling a demurrer interposed to tbe complaint herein.

<p>Justice's Court — power of the justice to issue a commission to examine a witness — when he may refuse to do so — Code of Civil Procedure, sec, 2980.</p> <p>Although the right of a party to an action in a Justice’s Court to have the justice-award a commission to examine a witness not residing in the county, as provided in section 2980 of the Code of Civil Procedure, is a substantial one, and an arbitrary refusal of the justice to issue a commission would require a reversal of his judgment, yet the, power to issue the commission is a discretionary one, and the justice may properly refuse to issue it, when no possible benefit could accrue to the party applying for it; as for example, where he declines to ask for an adjournment until the examination can '.be had and a return thereto made.</p>

Le Roy Budlong and Robert P. Budlong were joint and several makers, and Jeremiah Kinne the indorser of a promissory note, which fell due September 18, 1878, for the recovery of the amount due upon which this action was brought in a Justice’s Court. September 17, 1884, the summons in this action was issued by a justice of the peace of the town of German Flats, to which was annexed a verified complaint.

<p>Appeal from a judgment in favor of the defendants, entered upon a nonsuit directed at the circuit.</p> <p>February 12,1884, the Syracuse Iron "Works (a corporation) made its promissory note, whereby it promised to pay to the order of Charles E. Hubbell, treasurer, $36,000, one year after date, with interest,which was indorsed: “ Pay Jno. Crouse & Co., or order, Chas. E. Hubbell,. treasurer,” and the note was transferred, by virtue of the indorsement, to John Crouse & Co. Upon a paper attached to the note was written the following guaranty :</p> <p>Office of Syracuse Iron Wi “Syracuse, N. Y., February 12</p> <p>“ For value received of John Crouse & Co., we do hereby guaranty to said John Crouse & Co., the payment of a note hereto annexed, made by the Syracuse Iron "Works for thirty-six thousand’ dollars, said note being dated February 12, 1884, and payable twelve months after date at Merchants’ National Bank of Syracuse, with interest at six per cent per annum, payable semi-annually.</p> <p>“ R. N. GERE.</p> <p>“ CHAS. E. HUBBELL.</p> <p>“ C. 1). AVERY.</p> <p>“ W. H. H. GERE.</p> <p>“ J. FORMAN WILKINSON.</p> <p>“ GILES EVERSON.”</p> <p>February 13, 1885, the note was indorsed: “Pay Charles B„ Everson or order, without recourse to us in any event, John Crouse & Co.,” and the note was transfered to the plaintiff. On the same day John Crouse & Co. executed and delivered to the plaintiff the following assignment:</p> <p>“ For value received, we hereby sell, assign and transfer to-Charles B. Everson a certain promissory note, signed by R. N. Gere, president, and indorsed by Charles E. Hubbell, as treasurer, which note bears date February 12, 1884, and is a promise by the Syracuse Iron Works'to pay to the order of “ Charles E. Hubbell, treasurer, $36,000 at the Merchants’ National Rank, with interest at six per cent, and the same guaranteed, by a written guaranty attached thereto, and we also sell, and hereby assign said guaranty, as well as all claims against said Syracuse Iron Works arising out of the loan or loans of money which preceded said note and of which said note is the evidence of the last balance due, but this assignment is without recourse to the subscribers.</p> <p>“ Dated February 13, 1885.</p> <p>“JOHN CROHSE & CO.”</p> <p>The maker failed to pay the note, and this action was brought against the guarantors. The court nonsuited the plaintiff, upon the ground that the guaranty was special or personal and was not assignable before the note fell due. A judgihent was entered upon the nonsuit, from which the plaintiff appeals.</p>

The plaintiff was the owner of a bond and mortgage, upon which there was due $300, and interest from December 2, 1870. November 22, 1882, she assigned the bond and mortgage, by a written assignment, absolute on its face, to II. H. Sayies & Co. It is agreed that the assignment was, in fact, as security for the indebtedness of John J. Goldsmith, the plaintiffs brother, to the assignees.

. a verdict directed at the Oneida Circuit. The action was brought to recover the amount due upon certain promissory notes.

<p>Demurrer — can only be sustained for a defect specially stated in the demurrer.</p> <p>The defendants demurred to tlie complaint, specifying as the sole ground thereof that an equitable cause of action triable by the court, and a legal cause of action triable before a jury, were united. The Special Term sustained the demurrer upon the ground that a cause of action for an injury to real estate, and a cause-of action for the conversion of personal property, could not be united although both causes of action arise out of the same transaction.</p> <p>Meld, that as the defect specified in the demurrer was not a ground of demurrer, the court should have overruled it.</p> <p>That it could not sustain it because of another defect in the complaint not specified in the demurrer.</p> <p>Qumre, as to whether the defect specified by the Special Term was a demurra-ble one.</p>

<p>Conditional execution of a bond by a surety — when a failure of'the principal to comply with it is not available, as a defense to the surely, in an action by the obligee.</p> <p>One Jones, who was employed by the plaintifl: to sell property and collect money, delivered to it a joint and several bond, executed by himself as principal and by the defendant as surety, conditioned that Jones would pay over to the plaintifl all moneys received by him as its agent. After the bond was executed it was left with Jones, upon the agreement between him and the defendant that it should not be used or delivered to the plaintifl until the father or uncle of Jones executed the bond as a co-surety. The bond which was regular on its face, containing nothing to suggest a suspicion that it was not complete, was delivered to the, plaintifl without being signed by either the father or uncle, and was received by it without notice of the agreement.</p> <p>Meld, that the violation of the agreement furnished no defense to an action brought by the plaintifl to recover money collected by Jones and wrongfully appropriated by him to his own use.</p> <p>People v. Bostwick (32 N. Y., 445; S. 0., 43 Barb., 9) and Qrimwood v. Wilson (31 Hun, 215) distinguished and criticised.</p>

As a conclusion of law it was found by the trial judge: “ That the proofs in this case do not show any cloud upon the plaintiff’s title that a court can remove by the exercise of its equitable jurisdiction. Second.

The action was brought to recover damages for an alleged breach of the covenant of warranty of title and quiet enjoyment contained in a deed executed by the defendant on the 1st of September, 1881, to the plaintiff, conveying a parcel of land in the village, of Canastota, situated on the north-east corner of Main and Lewis streets, in that village.

From the justice’s return it appears “that on the 7th day of July, 1884, a suit was commenced by the plaintiff in Horseheads, in Chemung county, by a summons issued on that day in favor of the plaintiff against the defendant, returnable July 14, 1884, at twelve o’clock at noon.” It appears the summons was returned, personally served, July 8,1884, with the constable’s “return duly indorsed thereon.” “At the time and place last mentioned (fourteenth) the parties appeared, the…

Tbe plaintiff was injured by tbe collision of two trains while-operating as an engineer upon a locomotive engine in tbe service of tbe defendants, on the 16tb of October, 1883. Tbe defendants were copartners, being engaged in tbe construction of a section of tbe New York, West Shore and Buffalo Railway, west of Syracuse.

<p>Letters of administration — power of the surrogate to revoke them — for what causes it may he exercised— Oode of Civil Procedure, sec. 2685.</p> <p>As the surrogate was about to grant letters of administration to one West upon the estate of bis deceased wife, tbe appellant, Mary Jones, a sister of the deceased, and her friends applied to West for bis consent to have her associated with him as administratrix, it being then represented and stated to West that there would be in that case no conflict of interest as to the estate. To establish peaceful relations between himself and his sister-in-law, West was induced by these representations to consent to have the appellant associated with him as administratrix.</p> <p>On the day appointed for an appraisal of the property the appellant, for the first time, claimed a large portion of the personal property, averring that it belonged to her and her sisters and brothers, under the will of their father, and refused to produce for appraisal a large portion of the personal property which the intestate had used in her lifetime, and the appella-nt'then used language to and concerning West, which was disrespectful, unbecoming and uncalled for, and not provoked by anything he said.</p> <p>Held, that these facts authorize the surrogate to revoke the letters of administration issued to the appellant:</p> <p>First. Under the authority so to do, conferred by subdivision 4 of section 2685 of the Code of Civil Procedure, authorizing him to revoke letters where the ■grant was “ obtained by a false suggestion of material facts;” or</p> <p>Second. Under the authority conferred by subdivision 2 thereof, on that by reason of “misconduct” in the execution of her office, the appellant was unfit for the due execution thereof.</p>

<p>Deposit in a savings lank — what acts of the depositor are a ratification of the act of one who has drawn oat the money as her' agent — effect of a ly-lam protecting the lank in paying the checks of persons producing the pass-book.</p> <p>This action, was brought by the plaintiff, as the assignee of one Olive A. Wilcox, to recover moneys deposited' with the defendant, a savings bank, to the credit of “ Olive A. Wilcox, David J. Wilcox, agent.” The defendant in its answer-alleged that a pass-book was issued at the time the deposit was made, and that from time to time upon the presentation of the pass-book and the written receipt, order, check or other written request of said Olive A. Wilcox, personally, or of said Olive A. Wilcox by David J. Wilcox, agent, accompanying the same, the whole amount of said deposits was paid out by the bank, and that in making such payments it exercised due care and diligence m the effort to ascertain as to tire genuineness of the written checks or order. It also alleged that during the, whole existence of the said account David J. Wilcox was the husband and agent in fact of Olive, and as such duly authorized and empowered to draw and receive all sums so paid on said account. Upon the trial before a referee the defendant was allowed to amend its answer by setting up a general denial.</p> <p>Eeld, that it was proper for the referee to allow this amendment to be made.</p> <p>The referee found that the moneys had been deposited and drawn out by David Wilcox, as the agent of Olive; that the pass-book had been twice written up and the balances entered and carried forward; that prior and -subsequent to the time of the entry of these balances the book was in the possession of the said Olive and also of the said David; that on or about April 17, 1880, the balance was drawn out by David, redeposited to his own account and subsequently drawn therefrom by him; that a portion at least of the money so drawn out was applied and used in Olive’s business.</p> <p>Held, that those facts showed a ratification by Olive of the authority of David to draw, and of the bank to pay the money.</p> <p>That as the facts in this case authorized a finding that the defendant had not been guilty of negligence in making the payments, the bank was also protected from the claim of Olive by a regulation contained in its by-laws providing that “ the treasurer will endeavor to prevent frauds, and all payments made to persons producing the pass-book shall be valid payments and shall discharge the bank from any further liability.”</p>

The contract upon which the suit was brought by the widow of the intestate contained, among others, the following provisions : “ Now, therefore, the said party of the first par.t does hereby promise, covenant and agree, that immediately after the consummation of such intended marriage he will, by grant ■or by bequest, devise or otherwise provide for and assure unto the said party of the second pai’ty, in case she shall him survive, the payment of an annuity of $1,200 from…

The action was brought to restrain the defendant from obstructing a street in the city of Syracuse.

and four cents damages and five dollars costs. November 24, 1884, E. B. Tillotson, an overseer of the poor of the town of Cazenovia, made a written complaint before G. H. Benjamin, a justice of the peace, requiring the justice to make inquiry into the facts and circumstances touching a bastard child born of Susan Robertson, chargeable to the county of Madison.” On the same day Susan Robertson, in her examination before such justice, made oath that “ she was delivered of a…

Appeal by the defendant from a judgment of the County Court of Oneida county, reversing a judgment of a Justice’s Court. The plaintiff brought an action in replevin in a Justice’s Court to recover certain personal property which was taken under the replevin papers. The defendant gave an undertaking and took the property back into his possession.

<p>Appeal from an order of tbe Chemung County Court, dismissing' an appeal taken from a judgment of a Justice’s Court.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered in Broome county upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.</p> <p>The action was brought to recover damages arising from the death of the plaintiff’s intestate, who was killed while passing along one of the defendant’s streets on a dark and rainy night. Evidence was given tending to show that the street in question, Robinson street, is for some distance embanked higher than the adjacent lots, and is carried across a shallow depression, “ flats ” or ravine, by a stone culvert. The plaintiff’s intestate, on the evening of the 16th of October, 1884, was seen returning home along Robinson street, on the raised portion 'of it above described, and going east on the south side of the street; he had traveled over this place repeatedly for years and was thoroughly acquainted with it. On the morning of the next day he was found dead, face down in the creek, on the south side of the culvert. The defendant moved for a nonsuit at the close of the plaintiff’s evidence, and again at the close of all the evidence, upon the grounds, among others, that under the defendant’s charter (chap. 291 of 1867) it was expressly exempted from liability for any negligence, misfeasance or nonfeasance of its common council or its officers, and if any negligence could be imputed in omitting to put up barriers on either side of Robinson street, where it crossed over the culvert, that was the negligence of the common council and mayor, who were by the charter made commissioners of highways, and liable for any negligence as such. That the Robinson street road-bed was shown to have been in perfect order, and in accordance with the plan upon which it was built and graded at this point; that the city authorities acted judicially in determining and carrying out this plan, and any default, if any were shown, in maintaining the street according to that plan, was the negligence of its officers; that the evidence did not show that the plaintiff was not guilty of negligence, there being no proof from which it could be inferred either way. The motion was denied, and upon a verdict being rendered for the plaintiff, the defendant moved for a new trial, which was denied.</p>

<p>Slander — when a aommunioaiion made to an attorney of an estate, by one interested, therein, is not privileged under section 885 of the Oode of Oivil Procedure.</p> <p>This action was brought by the plaintifE to recover damages for slanderous words uttered by the defendant to an attorney-at-law, who was acting as an agent and attorney for the executor of an estate in which the defendant was interested, The alleged slander consisted in charging the plaintifE with having stolen eighty dollars in gold belonging to the estate, and requesting the attorney to collect it. Upon the trial the defendant objected to the attorney testifying as to what the defendant said to him, upon the ground that, as the defendant was interested in the estate his statement and request were privileged as a confidential communication made to his attorney.</p> <p>Held, that the objection was untenable, as the relation of attorney and client did not exist between the defendant and the attorney for the estate.</p> <p>That even if the defendant’s interest in t'he estate rendered the communication a privileged one, if found to have been made in good faith, yet that did not affect the admissibility of the evidence.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered at tbe Broome Circuit upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon a case and exception.</p> <p>Tbe plaintiff, in April, 1884, resided in tbe town of Binghamton, npon a farm adjoining premises occupied by tbe defendant Cumber, wbicb last mentioned premises were owned by one Stephen D. Hand at tbe time of bis death, and were occupied by said Cumber, under an agreement with tbe defendants Walter M. Hand and George E. Hand, as executors of tbe last will and' testament of said Stephen D. Hand. The defendant Cumber took possession of the premises April 3, 1882, and continued in possession under extensions of tbe same contract up to tbe time of tbe trial. Tbe defendants Hand left a quantity of stock on the farm at tbe time that Cumber took possession ; and some months after, and in November, 1882, Cumber exchanged tbe ram upon tbe place for another, which exchange was made without tbe knowledge of tbe Hands, nor did they ever know of such exchange, or that the ram was on tbe place, until after tbe injuries 'complained of by tbe plaintiff.</p> <p>April 1, 1884, this ram Avent upon the premises of plaintiff, and while upon his premises butted plaintiff and inflicted injuries upon him, and this action was brought to recover for the injuries so received.</p> <p>It is conceded, for the purposes of this appeal, that the defendant Cumber knew the ram in question to be vicious, and that the other defendants did not know it.</p>

<p>■Contract for the transportation of coal — when it does not make the parties liable as partners— what defects in the brake of a coal car do not render it dangerous to life— when the risk attendant upon his employment is assumed by an employee.</p> <p>The plaintiff, a hrakeman in the employ of the New York and Oswego Midland Railroad Company, brought this action to recover damages for injuries sustained by his being thrown from a train of cars through the breaking of a brake-bar which he was endeavoring to apply. The car upon which the plaintiff was working at the time of the accident was operated and run by the defendant, and had been delivered, with thirteen others, to the New York and Oswego Company under an agreement by which the latter undertook and agreed to transport over its road and branches the coal of the defendant at a stipulated price per ton per mile, and upon the further consideration of receiving a certain portion of the net proceeds of the coal.</p> <p>Held, that the agreement did not make the two roads liable as partners, but that the New York and Oswego road was simply employed by the defendant to transport its coal, and that as there was no privity of contract between the ■ plaintiff and the defendant the latter owed him no duty and was not liable for the injury he had sustained.</p> <p>It was claimed by the plaintiff that the brake on the car was defective in its con-' struction. The car was an open box car called a gondola, constructed solely for freighting coal; the defect in tne brake was that the hole in the wheel was made flanging, or larger at the bottom than at the top, and that the rod passing through the same did not closely fit the hole, and that the rod was only five-eighths of an inch in diameter when it should have been at least eleven-sixteenths. It appeared that brakes constructed like the one in question were in frequent use, and that the plaintiff had used them and knew the manner in ■which they were made.</p> <p>Held, that the action could not be sustained upon the ground that the car furnished by the defendant was improperly constructed, without due regard to safety in its use, and was imminently dangerous to human life.</p> <p>That, as between the plaintiff and his employer, the former must be presumed to have assumed the risk attendant upon the use of the brake.</p>

<p>Appeal from an order, entered in Westchester county, denying an application for a peremptory writ of mandamus, compelling the board of supervisors of Westchester county to reconsider and rescind a resolution directing that a tax be levied upon the taxable property of the town of Pelham, in accordance with a resolution passed at the town meeting, providing for the raising of money to be used in macadamizing certain roads.</p>

This action was brought for the recovery of a one undivided half interest in a farm of forty acres, more or less, situate in the town of Scarsdale, in the county of Westchester. The plaintiff claims said interest under the provisions of the will of Stephen Griffin, who died in the year 1847.

<p>SubmissioN to the General Term of tbe question, who, from and after January 1, 1886, was surrogate of Queens county.</p>

<p>Infant — of ter attaining Ids majority lie cannot recover property deposited as a margin-under an agreement for the purchase of stocks, which agreement was made and' broken by him while an infant.</p> <p>The plaintiff, when under twenty-one years of age, deposited with the defendants, who were hankers and brokers, twenty-five shares of Western Union Telegraph stock which belonged to his mother as a mai'gizi for the puz’chase of more stock of the same company. Such purchases were made under the direction of the-plaintiff, and when the stock declined in the market he was required to make additional deposits of money to keep up his margin; and he did so from time to time, but finally failing to comply with such demands his stock was all sold out by the defendants and he was left indebted to them in an amount exceeding $1,100. The plaintiff, upon reaching his majority, repudiated the transaction and brought this action to recover the property and money deposited and paid to the defendants.</p> <p>Held, that the action could not be maintained. (Barnard, P. J., dissenting.)</p>

The action is brought by the plaintiffs, as the heirs-at-law and next of kin of Thomas Gunning, deceased, to have the third clause of the last will and testament of said testator declared void, and to obtain a judicial construction of other portions thereof.

<p>Appeal from that portion of a decree of the surrogate of Kings county, entered in proceedings for the judicial settlement of the accounts of the executors of Joseph Masson, deceased, which disallowed an offset of a judgment against a legacy due to Erancis J. Moissen.</p>

<p>Subrogation — right of a widow to compel one holding a mortgage on the land of the husband to assign the same to protect her dower.</p> <p>The plaintiff, who held four mortgages, executed hy John A. Husted, the husband of the defendant Sarah, threatened after his death to foreclose them-The widow offered to pay the amount due on the mortgages and requested the plaintiff to assign them to a person named by her. He refused to assign them unless she would pay'a claim presented against her late husband, which she disputed and refused to pay. In these actions, brought by him to foreclose the mortgages, the defendant moved for and obtained an order compelling the plaintiff to assign the mortgages to such person as she would designate to receive the same, and directing the discontinuance of the action, without costs.</p> <p>Held, that the order was properly made and should be affirmed.</p> <p>That it was, under the circumstances of the case, proper to direct that the action, be discontinued, without the payment of interest subsequent to the tender, and. without costs.</p>

<p>Action by a husband for crim. con. — not barred by the recovery of a judgment in a former action for enticing his wife cmay from, him.</p> <p>In this action brought against the defendant to recover damages for personal injuries occasioned to the plaintiff by the defendant, in that he had maliciously and wickedly debauched and carnally known the plaintiff’s wife, an order for his arrest was granted.</p> <p>Held, that the fact that the plaintiff had, before the commencement of this action, brought another action against the defendant for enticing his wife away from him, and had recovered a judgment therein which had been paid, did not prevent him from maintaining this action.</p>

The application was based upon certificates issued to the relator for sales for the taxes of the years 1868 and 1870. He also claimed to be entitled to recover the amounts paid by him after the purchase of those certificates for assessments against the property which had become liens thereon prior to the years 1868 and 1870.

The complaint is a bill in equity on behalf of the plaintiff, as heir-at-law of Desier A. Clapp, who died September 24, 1881, without issue, seized of the premises described in the complaint, leaving… Held: declaring that the questions involved were purely legal, having reference only to the estate created by the will of Mrs. Clapp, and that the remedy was at law, where the right of trial by jury may be secured to the parties.

Appeal by the relator from an order, entered in Dutchess county refusing a peremptory writ of mandamus. At the state tax sale of 1859 a number of parcels of land in Erie county were struck off to M. Henderson, who paid the amount of his bids to the comptroller. Henderson assigned his certificate to Maurice E. Yiele, and the comptroller, in 1862, conveyed the lands to Yiele. By a deed of bargain and sale Yiele conveyed the lands to Ogden H. Osborn.

<p>Appeal from a decree of the surrogate of Queens county, admitting to probate what purports to be the lost or destroyed will of WiHiam H. Nichols.</p>

<p>Appeal from a judgment in favor of tbe defendant, entered in Kings county upon an order dismissing tbe complaint, made at tbe close of tbe plaintiff’s case.</p>

Appeal by tbe defendants Jacob Lorillard and the Lorillard Steamship Company from an interlocutory judgment, entered in ’Westchester county, overruling a demurrer to the complaint interposed by said defendants.

Sullivan county on the report of a referee. The action was originally brought in a Justice’s Court, and came-into this court on a plea of title. The action was for trespass in cutting timber. The defense was, that the acts complained of were-performed by defendants in removing obstructions from a public highway; and the only question in dispute was, whether the locus-in quo was a public highway.

<p>Evidence — when a party cannot testify as to the a/ppea/rance and acts of a deceased person — 0!ode of Civil Procedure, sec. 829.</p> <p>This action was brought by one Maria Smith, one of the heirs-at-law of one Thomas Meaghan, to set aside a deed made by him to one Andrew Meaghan, upon the ground that its execution was procured through the fraud and improper conduct of the defendant Robert and his mother Elizabeth, who had caused the said Thomas to become intoxicated to such an extent as to render him incapable of understanding and comprehending the nature of his act.</p> <p>Upon the trial the plaintiff's intestate, who was then living, was allowed, against the objection and exception of the defendants, to testify as to what the persons said, on coming into the room, just after the execution of the deed, and as td the acts and appearance of the deceased grantor, her evidence tending to show that he was then intoxicated to an extent indicating stupidity.</p> <p>Held, that the evidence was inadmissible, as in violation of the provisions of section 829 of the Code of Civil Procedure.</p> <p>Holcomb v. Holcomb (95 N. Y.., 316, 324) followed.</p>

<p>Sight of a contractor to sue a city for its neglect to take proceedings to collect money by assessment — effect of a decision vacating the assessment in a proceeding by cer-tiorari brought by properly owners.</p> <p>June 27,1881, the plaintiff’s assignor, Thomas Reilly, entered into a contract with the defendant for the grading, flagging and paving of a portion of Knox street, in the city of Albany, which provided that payment for the work should not he due until the said work had been accepted by the street commissioner and the apportionment of the expense confirmed by the common council and collected by the chamberlain, unless otherwise provided for. On August 2, 1882, the certificate of the street commissioner accepting the work was filed with the hoard of contract, which, against the objections of certain of the property owners, made an apportionment of the expense, which was, on November 14, 1882, confirmed by the common council as required by the charter.</p> <p>In proceedings instituted by the objecting property owners to review by certiorari the proceedings of the board of contract and of the common council, to which the contractor Reilly was made a party, an order was made at General Term vacating the assessment, and holding that the certificate did not conclude the boai’d of contract as to the performance of the work, or prevent it from inquiring as to whether it had in fact been actually completed as required by the contract. Thereafter, on the application of the contractor, the board of contract, after notice to the contractor to be present, met, and after hearing the parties objecting and the contractor, and receiving evidence offered by them, decided that the work had not been completed as required by the contract, and that until it was so completed the board could make no apportionment.</p> <p>Thereafter, in January, 1885, the contractor, having demanded of the city payment of the amount alleged to be due to him under the contract, brought this action to recover the same, alleging that the board of contract unreasonably delayed and refused to make any proper assessment or to take any steps to enforce the collection of the money due.</p> <p>Upon the trial the plaintiff offered to prove that he had fully complied with all the terms of his contract in all its parts. The - court refused to receive the evidence and directed a nonsuit upon the ground that as the first assessment had been vacated, and the board of contract, after hearing all the parties in interest, had refused to make a second assessment upon the ground that the contract had not been performed, the remedy of the contractor was to review this decision of the board by certiorari, and that no laches on the part of the city authorities was shown.</p> <p>Held., that the decision in the certiorari proceedings did not affect the certificate of the street commissioner as to the completion of the work, except, as it held, that such certificate was not conclusive, as to that fact, as against the city authorities.</p> <p>That the refusal of the board of contract and apportionment to make a new assessment, upon the ground that the work had not been completed, was not conclusive, as to that fact, upon the contractor, although he was present and produced evidence on his own behalf at the hearing.</p> <p>That he was not required to review the action of the board of contract by mandamus or oertiorari before bringing this action, and that, upon the trial of this action, he was entitled to give evidence to show that he had in fact fully complied with the terms of the contract and to have that question submitted to a jury.</p> <p>That the judgment should be set aside and a new trial granted. (Learned, P. J., dissenting.)</p>

94, upon a verdict directed by the court at the Montgomery Circuit. The defendants were partners, doing business as bankers and brokers.

Tbis case came before tbe General Term upon tbe judgment-roll and without tbe evidence. Tbe referee reported as follows: First. That prior to and on and for some time after August 27, 1877, tbe plaintiff and defendant lived together as husband and wife at South Pownal, Vermont. Second. That while so living together tbe plaintiff was called by tbe defendant Annie Brown. Third.

<p>Appeal from a judgment dismissing the complaint, with costs, entered in Albany county upon the report of a referee.</p>

<p>' Jfividen.ee — the testimony of a witness cannot he corroborated by proof of Ms own previous unsworn statements — an exception to this rule.</p> <p>While the plaintiff's ’intestate was riding upon a load of hay, through one of the-streets in the city of Hudson, the wagon was overturned and the plaintiff’s intestate was killed. In this action the plaintiff sought to recover the damages occasioned by the death of her intestate, upon the ground that the load was overturned in consequence of a hole in the street, which the defendant negligently suffered to exist there. The defendant claimed that the hay was improperly loaded and that this caused the accident. Upon the trial one Fleming, a son-in-law of the deceased, who had assisted in loading the hay and was riding with the deceased at the time of the accident, was called by ■the plaintiff and testified that the hay was properly loaded, and was in, an upright position when the hole was reached. On his cross-examination he was asked if he had not stated to certain persons, in the presence of others who were named, on the evening of the accident, that the load wa3 one sided and out of a perpendicular when they started and along the road, and that they had keen warned by several persons that it would go over. He having denied that he made these statements, several of the persons named were called and testified that he did make them. To sustain Fleming’s denial the plaintiff was allowed to call several witnesses, who testified that at about the same time they heard him make statements in accord with his testimony as given on the direct-examination.</p> <p>Meld, that it was error to admit such evidence.</p> <p>It seems, that if the defendant had sought to impeach the witness, or to impair his credibility by showing that, since the accident, his relations to the subject-matter of the action or to the plaintiff had so changed as to make it for his interest to testify falsely, it would have been competent for the plaintiff to prove that before this change occurred the witness gave the same account as he gave upon the trial. (Per Landon, J.; Learned, P. J., not concurring.)</p> <p>The plaintiff sought to bring the testimony admitted within this exception, by showing that the witness was the son-in-law of Jenkins; that Jenkins lived three days after the accident, and that during the lifetime of Jenkins the witness had no pecuniary interest in the matter, and that by Jenkins’ death his daughter, the witness’ wife, as one of his next of kin, became interested in the cause of action.</p> <p>Held, that as these facts were proved by the plaintiff in the first instance, the proof of the statements made by the witness prior to, and to the same effect as his testimony given on, the trial responded to no issue presented by any proof on the part of the defendant, but presented the naked case of an attempt by the plaintiff to corroborate the testimony of his own witness by proof of the previous unsworn declarations of such witness.</p>

<p>Compulsory reference — cannot he ordered when an issue of fraud is raised.</p> <p>The plaintiff, having acquired the individual interest of one Thompson in the firm property of Thompson & I-Iorrocks, brought this action to set aside as fraudulent a sale of the firm property, made by the sheriff to the defendant Warhurst, .under executions issued upon judgments recovered against the firm, for a sum less than sufficient to pay the firm debts.</p> <p>The complaint alleged that the price obtained upon the sale of the firm property to Warhurst was much less than its value, and was brought about by the fraudulent practices and representations of Warhurst, and that but for these the property would have realized enough to have resulted in a substantial advantage to the plaintiff, and prayed that the sale be declared void and an accounting be had.</p> <p>Held, that the substantial issue in the action was fraud, and that a compulsory reference ought not to be ordered.</p> <p>Camp v. Ingersoll (86 N. Y., 438) followed.-</p>

The plaintiff, on the 21st of January, 1880, by writing leased t<v defendant tbe hotel known as the Morgan House, in the village of Waterford, for three years, to commence May 1, 1880, rent to be paid monthly. Plaintiff went into possession under the lease.

Tlie action was brought to recover for injuries alleged to have been caused by the defendant’s negligence. The plaintiff, on the evening of November 23,1883, was about to enter one of the defendant’s street cars, which was then standing at the usual place of starting.

Dodge, deceased. This proceeding was commenced on the 4th of December, 1882, by the filing of a petition by tbe respondent Joseph T. Stevens for a disposition of the real estate of the decedent for the payment of his debts. The petitioner’s claim is upon a bond under seal, executed by the decedent May 1, 1868. The obligor died in April, 1869, leaving a will, also a widow and five children.

, Albert Johnson was carrying on business in October, 1884. At that time Eli Yan BrocMin purchased a half interest in the business, paying therefor $500. They carried on business under the name of Johnson & Yan Brocklin till January 3, 1885, when Johnson sold out to Yan Brocklin for $500, and Yan Brocklin assumed the liabilities and continued the business. February 3, 1885, Yan Brocklin made a general assignment to plaintiff. He prefers creditors as follows: First.

<p>Place of trial of actions brought for violations of game laws — not affected by section 983 of the Code of Civil Procedure.</p> <p>Section 983 of the Code of Civil Procedure, providing that actions to recover a penalty or forfeiture imposed by statute must be tried in the county where the cause of action or some part thereof arose, has no application to actions brought under chapter 534 of 1879, to recover penalties for violations of the game laws,, which may be brought in the county where the penalty was incurred, or in an adjoining county. .</p>

Appeal by the defendant from an order, made at the Rensse-laer Special Term, modifying a judgment entered in this action.

At the annual school meeting in district No. 9, of the town of Moriah, held August 24, 1884, Charles Will was elected trustee, and he thereupon accepted the office and acted as such trustee. Held: and at that meeting Mr. Will resigned and the defendant was elected trustee in his place. The defendant, although he knew of the contract with the plaintiff, employed another teacher, and the plaintiff was excluded from and deprived of his employment.

<p>Deed — construction of it — what evidence is admissible to aid in determining its meaning.</p> <p>By a deed dated March 22, 1866, one Taylor conveyed an undivided one-half of a ten-acre lot in Esopus to Joseph Bell, and thereafter, by a deed dated March 26, 1868, one Smith conveyed the other undivided one-half of the same lot to Bell. Subsequently Bell executed a deed which, after describing four other parcels of land owned by Bell, conveyed ‘ ‘ also the undivided moiety or half part of all that certain tract of land situated in the town of Esopus,” describing the ten-acre lot and then continuing, “being the same premises conveyed to said Joseph Bell, of the first part, by Charles Gr. Taylor and wife, of the city of New York, by deed dated March 26, T866.” It then described another lot and continued, “ and also all other real estate and water front on Bondout creek, situate in the town of Esopus, Ulster county, and State of New York, belonging to me, or which I have any interest in.” It appeared that in addition to the lots described in the deed Bell owned, in Esopus, a lot called “ the dump lot.” !</p> <p>Held, that the grantee ’ took only an undivided one-half interest in the ten acre lot.</p> <p>That in construing the deed, evidence showing that Bell owned real estate, other than that described in the deed, was admissible as showing the circumstances under which the deed was executed, but that evidence as to his intention was not competent.</p>

<p>Appeal from an order of tbe Albany County Court, fixing a -date for tbe bearing of tbis action before a justice of the peace.</p>

<p>Covenants of wa/rranty and quiet enjoyment — no action will lie thereon unless there has leen an emotion, actual or constructive.</p> <p>June 2,1873, the plaintiff conveyed to the defendant 150 acres of lot 161, Refugee tract, by a deed containing a covenant of warranty, and on September 9, 1873, he conveyed to him 266 acres, more or less, of the same lot by a deed containing the same covenant, and on November 24, 1874, he conveyed to him,, by a quit-claim deed, all of the lot, except fifty-two acres. By a deed, dated October 2, 1880, the comptroller of the State conveyed the whole of lot No. 161 to one Palmer, pursuant to a sale made in October, 1877, for unpaid taxes accruing prior to 1871.</p> <p>The defendant testified that on November 9, 1880, while he was in possession of all the lot, except fifty acres which he did not own, a notice to redeem was served upon him, and that pursuant thereto he did, on January 21, 1881, redeem the whole lot by paying the sum of $362.12.</p> <p>In this action, brought by the plaintiff .against the defendant to recover the purchase-price of a horse, the latter sought to set up as a counter-claim a breach, of the covenant of warranty occasioned by the said tax sale and the payment of the amount required to redeem the land therefrom.</p> <p>Held, that as no eviction, actual or constructive, was proved, no cause of action. for a breach of the covenant of warranty was shown.</p> <p>Without an eviction, actual or constructive, there can he no recovery on a. covenant of warranty or of quiet enjoyment.</p> <p>There is an actual eviction where the grantee is dispossessed by process of law.</p> <p>There is a constructive eviction when he yields possession to a title which is-actually paramount, but there cannot be a constructive eviction without an abandonment of the possession of the premises.</p>

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

<p>Appeal from an order reinstating an order of arrest heretofore-issued herein, and also from an order restoring therein the name-of one of the defendants to this action, which name had been-stricken therefrom without authority.</p>

<p>Appeal from a judgment of the Court of Oyer and Terminer, convicting the appellant of manslaughter in the first degree, and sentencing him to fifteen years’ imprisonment in the State prison.</p>

<p>Gounter-claim — when, m an action drought against one as trustee, he may set up a demand due to him, individually, from abank of which the plaintiff is the receiver.</p> <p>The defendant in this action received certain claims existing in favor of N. H. Decker & Co., arising out of a contract for the construction of Riverside drive, as assignee, in trust, to apply the proceeds of the same towards the payment of debts of Decker & Co., connected therewith.</p> <p>The plaintiff, the receiver of the Produce Bank, brought this action to compel the defendant to account for the moneys received by him under the assignment from N. H. Decker & Co., the bank having discounted certain promissory notes upon the security of the contract made by that firm for constructing the Riverside drive. By the declaration of trust given by the defendant when the contract was assigned to him by Decker & Co., he agreed to pay out of the moneys received by him upon the said contract all liens, claims, etc., growing out of it and existing against the firm, or either member thereof, by reason of it.</p> <p>The complaint alleged that the defendant, as trustee for the firm, had collected moneys under the said contract and had discharged certain of the liens or claims, including some of the notes held by the bank, and the remainder of the said notes were unpaid, and were the only outstanding liens, or claims or debts, growing out of the contract within the meaning of the declaration of trust.</p> <p>The defendant set up as a counter-claim a demand due to him by the Produce # Bank for services rendered by him as its vice-president, and alleged that at the date of the appointment of the plaintiff as receiver the board of directors of the bank were indebted to him in the sum of $8,600.</p> <p>Held, that the court erred in sustaining a demurrer, interposed to the counterclaim, upon the ground that such counter-claim was alleged in favor of the-defendant in his individual capacity only. u</p> <p>That as the counter-claim tended in some way to diminish or defeat the plaintiff’s recovery, as required by section 601 of the Code of Civil Procedure, and as the demand existed against the person whom the plaintiff represented, or for whose benefit the action was brought, it was properly interposed and should be sustained.</p>

<p>Attachment — when an affidavit therefor is sufficient if made by an officer of the plaintiff when a corporation — general assignment — when invalid, as to creditors, by reason of a preference being given therein pursuant to a previous agreement to do so.</p> <p>Motion to vacate an attachment under which a levy was made on December 31, 1885, upon the property of the defendant, who made a general assignment for the benefit of creditors on January 2,1886. The affidavit used on behalf of the plaintiff, on the application for the attachment, was made by its assistant cashier, who stated positively that the plaintiff was entitled to recover the sum mentioned, with' interest, over and above all counter-claims known to the plaintiff.</p> <p>Held, that this was sufficient.</p> <p>Ma/rine National Bank of New York v. Ward (35 Hun, 395) distinguished.</p> <p>The plaintiff, in the moving affidavits, charged that the defendants had agreed, in the event of an assignment, to prefer William Whiting, who was spoken of as the Whiting Paper Company, and were using threats of such a preferential act to coerce their creditors into a favorable compromise. The defendants denied the use of any threats, hut admitted that the firm had made an agreement with the Whiting Paper Company, that in the event of an assignment becoming necessary to protect the property of the firm, that company should he preferred to the amount of the stock furnished by it and not'paid for. By the assignment, made on January second, the Whiting Paper Company was preferred for an amount asserted to he due to it.</p> <p>Meld, that this agreement invalidated the assignment.</p> <p>That as the levy had been made before the assignment was executed, and as the latter contained a fraudulent element, in accordance with a previously existing arrangement or agreement, that instrument itself furnished the evidence of an intention to assign and dispose of property fraudulently and with a view to defraud the creditors.</p> <p>A debtor will not be permitted, at or before the time the debt is created, by a secret tacit agreement or understanding with any one or more of his creditors, to make an engagement in reference to his property by which their debts shall, in case of emergency, be preferred under any and all circumstances, and by such an arrangement, in effect, place a secret mortgage upon the debtor’s assets.</p>

The petitioner, Elizabeth Bierbaum, resides with her husband • Henry Bierbaum, and their children, in this city. She is the only daughter of Margaret O’Grady, deceased, who died on or about the 19th of July, 1877, in this State, leaving a last will and testament a copy of which is as follows : “Know all men by these presents, that I, Margaret O’Grad.y, widow of Peter O’Grady, of the city o-f New York, do make, ordain, publish and declare this to be my last will and testament.

Tbe complaint alleged, among other things, that at tbe times hereinafter mentioned tbe defendant, Tbe Commercial Agency, was, and still is, a corporation carrying on business in tbe city of New York, under that name, and tbe other defendants are officers connected therewith; that tbe plaintiff is, and for tbe past fifteen years and upwards has been, a merchant carrying on business in the city of New York as a manufacturer and seller of bats; that, as tbe plaintiff is…

<p>•Qlm'ten' of New York — what employees a/re officers within sections 55 and 59 of chapter 410 of 1882.</p> <p>The plaintiff held the position of examiner in lunacy under an appointment made by the department of charities and correction, in which position he received a compensation of thirty-seven dollars and fifty cents per month. While he held that position he was appointed a sanitary inspector by the health department in the vaccinating corps, for which, if his appointment was valid, he was entitled to receive a compensation of $100 per month.</p> <p>Held, that while retaining his office in the department of charities and correction the plaintiff was, under the provisions of sections 55 and 59 of chapter 410 of 1882, ineligible to official employment as a sanitary inspector in the vaccinating corps of the health department, and was not entitled to receive the salary attached to that office.</p>

Appeal by Joseph L. Little'and William J. Demorest from an order denying a motion to amend an order authorizing the sale of certain booh piates and for the payment of a judgment recovered by the appellants against James Miller.

<p>An action cannot be brought by one person to restrain another from, instituting legal proceedings against him, — when an action will lie to compel the cancellation of an agreement brolcen by the defendants.</p> <p>The complaint alleged the making of an agreement between the parties by which the defendants were authorized to produce and perform a dramatic composition of the plaintiff, they agreeing to produce' and present the play and make the necessary disbursements, not to exceed $'3,000, and to employ the plaintiff in the principal role, the net profits to be divided equally between them. The complaint further alleged that the defendants refused to fulfill their obligations under the agreement, and instances were given where, in consequence of such failure, the performance of the play proved to be unattractive and unremu-nerative; that after such failure the plaintiff rewrote the play under another name and was about to produce it at another theatre in the city of N ew T ork, rand that he was apprehensive that the defendants would enjoin him from producing it, and prayed for an injunction restraining them from so doing.</p> <p>Held, that although the action could not he maintained to restrain the defendants-from taking such legal proceedings, yet the facts stated in the complaint showed a breach of the contract on the part of the defendants which authorized the plaintiff to maintain an action to have the same canceled and annulled, and that it was error to sustain a demurrer interposed to the complaint.</p>

TJpon the hearing the assignee claimed to be entitled to retain the sum of $300 as a compensation for his services under an agreement made, prior to the assignment, between him and the assignor, to the effect that if the assignment did not go through, or there was a composition with the creditors, or the assignment was set aside by a creditor, he should retain that amount from the moneys in his hands.

Appeal by the plaintiffs from an interlocutory judgment, directed by the court upon a trial of this action at the Special Term

<p>Action for the strict foreclosure of a mortgage upon land situated in another State — • when the courts of this State have ju/risdiction over it.</p> <p>This action was brought to procure a strict foreclosure of a mortgage upon lands in Cook county, Illinois, given by the defendant Juliet R. Lockwood to secure the payment of a sum of money due to the plaintiff from the defendant John L. Lockwood, her husband. The referee dismissed the complaint upon the ground that the court had no jurisdiction over the action because the land was situated in the State of Illinois.</p> <p>Held, error; that as the parties were within the jurisdiction of the court when its process was served upon them, and had appeared and served answers contesting the right of the plaintiff to maintain the action, the court acquired jurisdiction to entertain the action and to grant the relief sought.</p>

<p>Pleadings — a defense may he pleaded whether it he a/n entvre or a partial one — in an action f'or the conversion of anote, the fact that the maker may plead the statute of limitations as a defense to a recovery upon it, may he set up m reduction of damages.</p> <p>This action, was brought by the plaintiff, as a receiver appointed in supplementary proceedings instituted upon a judgment recovered against one Margaret A. Frost, to recover damages for the conversion of a promissory note owned by her. The note, which was for the sum of $300, was made on March 1,1871, by one Alcorn, to become due in two years after its date, payment thereof being secured by a mortgage upon property owned by Alcorn in the State of Kansas. The defendant alleged in its answer that the maker of the note resided, and still resides, in the State of Kansas, and that by the laws of that State an action for the recovery of the debt is required to be commenced within five years after the cause of action shall have accrued, and that more than five years have elapsed since the right of action accrued upon the note, and that the debt, together with the mortgage, have been barred by the statute of limitations.</p> <p>Held, that it was error to sustain a demurrer interposed by the plaintiff to this portion of the answer.</p> <p>That if the note should be proved to be without any value whatever, on account of the effect of the statute of limitations being a defense to an action upon it, then the answer contained a complete defense.</p> <p>That if it should be shown or considered to be of some value, then the answer contained a partial defense.</p>

<p>Appeal from an order adjudging tbe plaintiff in contempt and directing bis commitment to prison.</p>

<p>Charitable Request — when not defeated by an error in the name of the legatee.</p> <p>One Hallgarten bequeathed “To the Children’s Aid Society, oity of Hew York $5,000. To the Newsboys’ Lodging-House, city of New York, $5,000.”</p> <p>The Newsboys’ Lodging-House was an unincorporated department of the Children’s Aid Society, well known and recognized by the legislature. Its affairs were managed by the same board which controlled the affairs of the Children’s Aid Society, through separate officials, who reported to that board. Many bequests had been made to the Newsboys’ Lodging-House as distinct from the Children’s Aid Society; and the testator had taken a decided interest therein and was a constant subscriber to both the aid society and the lodging-house.</p> <p>Held, that the legacy to the Newsboys’ Lodging-House was valid and that it should be paid to the Children’s Aid Society.</p>

<p>Practice — an appeal will not be considered unless the appeal papers have been certified as required by section 1353 of the Code of Civil Procedure.</p> <p>Upon the hearing of an appeal taken from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, the respondents objected that the appeal book had not been certified as required by section 1353 of the Code of Civil Procedure.</p> <p>Held, that the objection was valid and prevented the court from considering the case.</p> <p>The observance of the duty imposed by the said section is regarded as extremely important.</p>

<p>Power of a club to expel one of its membm for misconduct — he is entitled to notice and to have an opportunity to appecor and be hewed— rules of the Union Club of the city of Sew York, in relation to this matter, considered and consti-ued.</p> <p>This action was brought by the plaintiff against the treasurer of the Union Club of the city of New Xork to have decreed as unlawful, null and void a resolution of expulsion passed against the plaintiff, at a meeting of the governing committee of the club, and to enjoin and restrain the defendant, and the other officers and members of the club, from interfering with the enjoyment by the plaintiff of his rights and privileges, as a life member of the club. At the time the resolution was adopted the committee consisted of twenty members, eighteen of whom were present at the meeting at which the resolution was adopted, fourteen of whom voted for the adoption of the resolution and four of whom voted against it. The resolution was adopted upon the report of a committee of five of its members, who had been appointed to investigate and report as to the facts. It was claimed that before bringing the action, the-plaintiff should have applied to the committee to have the resolution of expulsion reconsidered and revoked, as he was authorized to do by the rules of the club.</p> <p>Held, that the probability that favorable action might, in this manner, have been secured was so extremely remote as to relieve the plaintiff from the necessity of applying for such reconsideration, before resorting to this action.</p> <p>On May eighteenth, a committee of five of its members was appointed, at a special meeting of the governing committee, to investigate and report an exact statement of the facts in relation to the difficulties existing between the plaintiff and another member of the club' with instructions to inform thém of the resolution appointing the committee and give them an opportunity to appear. The plaintiff was served with a copy of the resolution and appeared before the committee, at a time fixed by it with his counsel, and read a written statement which he left with it. The committee took the statements of the other mem - her and of other witnesses in the absence of the plaintiff. At a meeting of the governing committee, held on May 23, 1882, the committee of five made their report, to which they added the statements so obtained by them. This report was considered by the eighteen members of the governing committee then present, including the members of the committee of five, and a resolution of expulsion adopted by a vote of fourteen to four.</p> <p>Held, that the failure of the governing committee to give the plaintiff notice of the meeting and an opportunity to be heard deprived the resolution of expulsion of all legal effect as to him. (Daniels, J., and Davis, P. J.)</p> <p>That this result was not affected by the failure of the plaintiff to request to be allowed to be present and be heard, as the committee was legally bound to extend and secure the opportunity for a hearing to the plaintiff, before its members could proceed to the hearing and consideration of the case.</p> <p>The governing committee consisted, by the constitution of the club, of twenty-four members, and ‘ ‘ a two-thirds vote of the governing committee ” was thereby declared to be necessary for the expulsion or suspension of a member. Another article of the constitution declared that “a majority of its members, exclusive of those absent by its permission, shall constitute a quorum of the governing committee.”</p> <p>Held, that a resolution of expulsion or suspension required the affirmative vote of sixteen members of the committee. (Daniels, J.)</p>

<p>Appeal from an order directing tbe appellant to print, file and serve tbe case on appeal from a judgment.</p>

<p>Appeal from a judgment dismissing the complaint recovered on the trial of this action at Special Term.</p>

<p>Action for services rendered to an administrator — when he is personally liable therefor.</p> <p>In this action, brought to recover the value of services alleged to have been rendered by the plaintiff for the defendant, who was the administrator of -the estate of his deceased son, the defendant claimed that if he was liable at all it was only as administrator. The court directed the jury that if it was the intention of the plaintiff to look to the defendant, as the administrator, for his compensation, then he could not recover against him individually.</p> <p>Held, error; that a mere intention on the part of the plaintiff to look to the administrator for his compensation would not prevent him from recovering a verdict against the defendant personally, if the services were rendered for him without any agreement on the part of the plaintiff to look to or confine his claim for compensation to the estate itself, or the defendant in his official capacity.</p>

The defendant, on the 1st of August, 1880, became the lessee of the Buffalo and Southwestern railroad, for the term of the existence of the lessor. The village of Hamburgh has a population of 1,200, and that railroad passes through it.

Motion by the plaintiff for a new trial on exceptions taken at Chautauqua Circuit, and ordered to be heard at General Term in the first instance. Tbe action was brought to recover an alleged indebtedness of the defendants to the plaintiff for cattle sold and delivered to them. The defendants allege payment.

<p>JEtfectment — right of the holds’1' of the legal title to maintain it, as against one claiming under a contract of sale made Iry a prior owner.</p> <p>On November 12, 1867, one Pierpont became tlie owner of certain premises, wbicb be thereafter, and on August 31, 1880, conveyed to one Puller. On June 30, 1881, the premises were conveyed to one Risley by a sheriff’s deed, pursuant to a sale under an execution issued upon a judgment recovered against Puller. In this action of ejectment, brought by Risley, it appeared that, prior to the conveyance by Pierpont to Puller, Pierpont had entered into a written agreement for the sale of the premises to Sarah A. Mitchell for ¡¡¡>108.41, by which he agreed to convey the premises to her upon payment of that amount, or on her securing the payment thereof by her bond and a mortgage upon the premises. The contract did not give to the vendee any right to possession; nor was it shown that any of the purchase-money had been paid, or that any offer of performance had been made on the part of the vendee. Sarah A. Mitchell, after entering into this contract, executed a mortgage upon the premises to one Collins. .The defendants in this action were in possession, claiming under a decree of foreclosure of this mortgage.</p> <p>Held, that a verdict was properly directed in favor of Risley, the plaintiff, as the evidence showed the legal title and the right of possession to be in her.</p> <p>That the plaintiff was not required to show that she had, prior to the commencement of the action, demanded that the contract be performed and tendered a conveyance of the premises.</p>

<p>Appeal by the city of Rochester from the appraisal and report of the commissioners appointed in this proceeding, and from the order of the Monroe Special Term confirming such report.</p> <p>By chapter 754 of the Laws of 1873, the board of water commissioners of the city of Rochester were authorized, as agents of the city, to enter upon, control and use the waters of Hemlock and Oanadice lakes, for the purpose of nrocuring a water supply for the city. The water commissioners proceeded to construct works for the taking of water from Hemlock lake for such purpose, and completed them early in 187G, by which water was taken from the lake for the purposes of such supply. ' This lake is situated in the county of Livingston, and about thirty miles from the city of Rochester. Its outlet receives the water from the outlet of Cana-dice lake, and further on empties into Honeoye creek, which proceeds to and enters the Genesee river. In 1878 the riparian owners along the outlet of Hemlock lake and Honeoye creek commenced actions against the city of Rochester to recover damages alleged by them to have been suffered by reason of the taking of the water from the Hemlock lake to supply the city, and it was finally determined in one of those actions that the city was liable. {Smith v. City of Rochester, 92 N. Y., 403.) And pursuant to chapter 67 of Laws of 1881, this proceeding was instituted in 1884, to acquire as against the riparian owners of twenty-two parcels of land adjacent to the outlet of Hemlock lake and Honeoye creek, the right to take water from those lakes, and Horace Y. Howland, James T. Gardner and Charles C. B. Walker were appointed commissioners to appraise the damages. They viewed the premises, heard the evidence and made their report, whereby they awarded damages to the landowners severally, amounting in the aggregate to §95,485, and from it and the order of confirmation this appeal is taken.</p>

<p>Appeal from .an order of the Cattaraugus County Court, denying the defendant’s motion to dismiss an appeal taken, from the ' judgment of a justice of the peace.</p>

Appeals from orders of tbe Monroe Special Term, modifying and reducing assessments, as made by tbe assessors in the several-towns named in the above titles.

Appeal by the defendant from a judgment, entered on a verdict rendered at tbe Steuben Circuit, and from an order denying a motion for a new trial, made on tbe minutes of tbe justice before wbom the action was tried. Tbe action is brought to recover for tbe personal injury of tbe plaintiff, alleged to have been occasioned by tbe act of tbe defendant.

<p>Judgment in an action for divorce rendered in another State — conclusive on the parties in the courts of this State — how far binding upon the children.</p> <p>Upon tlie return to a writ of habeas corpus issued upon the application of the relator to compel her former husband, the respondent, to produce their children in court, together with his reasons for their detention, it appeared that on October 10, 1884, the relator began an action against her husband for an absolute divorce in the county of Tazewell State of Illinois, in which county the parties then resided; that the defendant was personally served with process, appeared by an attorney and put in an answer; that at the November term, of the court the husband was adjudged to be in contempt for a failure to comply with an order requiring him to pay alimony and also for taking and removing and keeping the children out of the State in violation of the terms and provisions of that order; that thereafter the case came on for trial, and evidence on the part of the complainant havingbeen received, and evidence offered on behalf of the defendant having been excluded on the ground that he was in contempt, a verdict was rendered in favor of the plaintiff, upon which a judgment was entered dissolving the marriage, finding that the complainant was wholly competent and qualified to have the care, custody and control of the children, and that the defendant was wholly unfit to have such care, custody and control, and adjudging that -he complainant have the care, custody, control and education of all the said children. The defendant having removed the children to this State the relator applied for this writ.</p> <p>Held, that as between the husband and wife the question as to th.e fitness and competency of the one, and the unfitness and incompetency of the other, to have the care and control of the children, was conclusively established by the judgment of the court of Illinois and could not be again examined in the courts of this State.</p> <p>In the Matter of Frank B. Bort (25 Kansas, 308) not followed.</p> <p>That the decision was binding upon the children only f.or the lime being, and that as soon as the circumstances of the custodian changed, or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or of any other court having jurisdiction, to make such change.</p> <p>That, upon the facts shown to exist in this case, the report of the referee awarding the custody and control of the children to the mother should be affirmed.</p>

<p>Practice — a motion to amend, pleadings, in an action sent to a referee for trial, mag be made at Special Term, its power and that of the referee being concurrent— Code of Civil Procedure, secs. 723, 1018.</p> <p>Tbe power conferred by section 1018 of the Code of Civil Procedure upon a referee, to whom an action lias been referred, to allow amendments to the summons or pleadings, although the same as that possessed by the court, is not exclusive thereof, but is concurrent therewith, and it does not prevent the court from exercising the power to grant such amendments, under the provisions of section 723 of the said Code, if the party chooses to apply for it and the referee adjourns the case for that purpose.</p>

<p>Practice — right of defendants appearing by different attorneys to separate bills of costs — Code of Oi/oil Procedure, secs. 3228, 3229 — the burden of proving collusion rests upon the plaintiff.</p> <p>Where, in actions at law, all of the defendants have succeeded upon the trial, those who have appeared by different attorneys, who are not united in interest, are entitled to costs as of course and as a right, and they have the right to present hills of costs to the clerk and have them taxed by him without first obtaining an order of the court directing that this should be done.</p> <p>This right can only be defeated by showing that parties united in interest col-lusively appeared by separate attorneys, in bad faith, for the purpose of enhancing the plaintiff’s costs.</p> <p>The burden of proving this rests upon the plaintiff, who may, if more than one bill of costs be taxed, move at Special Term for a retaxation.</p>