Volume 48 — New York Supreme Court Reports

<p>Statute of frauds — a promise to answer for the debt of another is not Within the statute, when the promisor derives a benefit from the act of the promisee.</p> <p>This a'ction was brought to recover the amount which the plaintiff had been compelled to pay upon a bond signed by himself and one McLaughlin, as sureties, upon the issuing of letters of administration to the defendant and two other persons. On the final settlement of their accounts it was adjudged that there was due from one of the administrators (not the defendant) a certain sum of money which he was directed to pay over. He having failed so to do, and the other surety being insolvent, the plaintiff was compelled to pay the amount sought to be recovered in this action.</p> <p>It appeared that the plaintiff signed the bond at the request of the defendant, who said that by signing it he would do him a great favor as it would enable him to get money out of the estate, and that he (the defendant) would guar* anty that the plaintiff should never lose one cent by signing it.</p> <p>Held, that as the defendant's promise Was made in consideration of benefits to be derived by him from the act of the plaintiff, the promise did not fall within the statute of frauds and that the plaintiff was entitled to recover.</p>

<p>Secrets of trade — when a person who has procured knowledge of them surreptitiously will he enjoined from availing himself of such knowledge.</p> <p>This action was brought to restrain the defendant from manufacturing and selling pumps made from patterns copied from certain patterns designed by the plaintiff. It appeared that in 1861 the plaintiff had invented and taken out letters patent for a rotary pump, and had manufactured and sold such pumps until the patent expired; that about eight years since he invented several improvements upon the old pump, and thereafter continued to manufacture pumps with these improvements and abandoned the manufacturing of the old pumps; that these improved patterns were kept by him as a secret of his trade or business, and not thrown upon the market or given to the public. Held, that the manufacture and sale of the improved pumps was not a publication of the plans, specifications and patterns from which the pumps were manufactured.</p> <p>That the defendant had no right to procure copies thereof, surreptitiously without the knowledge of the plaintiff, by employing one of his pattern-makers to make them, and that he should be enjoined from using the patterns so acquired.</p>

<p>Practice — motions for new trials to be made in actions and not in special proceedings— Code of Civil Procedure, sec. 1002 — appeals in special proceedings are regulated by sections 1356 and 1357 of said Code and not by section 1346 — evidence — what testimony does not relate to a personal transaction with a deceased person — what payments relieve a claim from the bar of the statute of limitations.</p> <p>The provisions of section 1002 of the Code of Civil Procedure, relating to motions for a new trial, refer to motions in actions and have no application to special proceedings, such as references of disputed claims against the estate of deceased persons.</p> <p>Appeals from orders and judgments, entered in such proceedings, are regulated by sections 1356 and 1357 of the Code of Civil Procedure, and not by section 1346 thereof.</p> <p>Toung v. Cuddy (23 Hun, 249) criticised and doubted.</p> <p>On August 23, 1866, the appellant and one Denise entered into an agreement whereby, in consideration of their intermarriage, it was mutually agreed that each should hold, control and dispose of the real and personal property which he or she, respectively, had at the time of the marriage, or might thereafter acquire, the same as if the marriage had not taken place, except that in case she should survive him she should receive $1,000 from his estate. After the marriage the parties entered into a further verbal agreement by. which Denise agreed to pay to the appellant $300 a year in consideration that she should provide at her furnished house in which they were to reside everything necessary for a living for them both during life. Pursuant to this agreement Denise lived’with the appellant and was supported by her until April 11, 1879, except for a period of nineteen months. In each year he paid her some money and furnished some of the provisions, amounting in the aggregate to eighty dollars a year.</p> <p>Upon the hearing before a referee, in proceedings to enforce payment of the amount claimed to be due from the estate of Denise, the appellant was allowed, against the objection and exception of the respondent, to answer the question: “From the date of your marriage to 16th of November, 1874, who provided the necessaries for the house and the support of the family ? ” by saying, “ we both did it; he got some things and I got the rest.”</p> <p>Held, no error, as the question did not necessarily call for any personal transaction or communication with the deceased so as to render it inadmissible under section 829 of the Code of Civil Procedure.</p> <p>That the annual payments relieved the claim from the operation of the statute of limitations.</p> <p>Gilbert v. Comstock (93 N. Y., 484) followed.</p>

<p>Deed — token a right to oil, minerals, etc., in land reserved to the grantor is liable to sale under execution — to what interests only chapter 372 of 1883 relates.</p> <p>One Dow, the owner in fee of certain land, sold and conveyed the same to one Jackson, “ excepting and reserving all the oil, gas and other minerals in and beneath tl^e surface of the said premises, with the exclusive right to dig, mine, bore and operate for the same on said premises, and with the right of way over said premises, ingress thereto and egress therefrom, as the same may be necessary or convenient for such operations, for a period of twelve years from August 2, 1882, and with the right during said period to use so much of said premises as may be convenient or necessary to erect and place thereon tanks, engines, boilers, derricks, buildings and machinery and other structures for the purpose of such operations, and at any time to remove therefrom all such tanks, structures and machinery; and, also, reserving the right to take water off said premises, or to use the same as may be required for such operations, during said period.”</p> <p>Reid, that the interest reserved to Dow in the deed was an interest in real estate, a chattel real, which was subject to the lien of judgments recovered against him, and to sale under executions issued thereon.</p> <p>Section 1 of chapter 372 of 1883, providing that “all oil wells and all fixtures connected therewith, situate on lands leased for oil purposes; and oil interests and rights held under and by virtue of any lease or contract, or-other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation, but nothing herein contained shall affect the laws now in force relating to taxation,” has no reference to an estate such as that reserved to Dow.</p>

<p>Action to recovex' money, loaned by a tax collector from taxes collected by him — when it cannot be recovered from one receiving it in good faith and for a valuable consideration.</p> <p>The plaintiff having been, compelled, as one of the sureties upon the bond of a town tax collector, to pay to the county treasurer the sum of $1,428 which had been received but not paid over by the collector, brought this action against the defendant, alleging that he borrowed of the tax collector $1,211.92 of the tax moneys collected by him for taxes, knowing that the moneys so borrowed were tax moneys.</p> <p>Upon the trial the defendant offered, but was not allowed, to prove that the tax collector was a member of the firm of John Provost & Son; that after the defendant had borrowed the money he sold beef to the said firm for some five months; that it was agreed that the money in his hands should go to pay for any balance that might be due him for meat furnished, and that upon the settlement of the accounts the firm was indebted to him for more than $800; that he did not know that the money borrowed was part of the tax moneys.</p> <p>Held, that the court erred in excluding the evidence; that if the defendant could have shown that he did not know the funds borrowed by him were tax moneys, and that he, in good faith, sold and delivered to Provost meat of the value of $800, with the understanding and agreement that it should be deducted from the loan, it would, to that extent, establish a defense.</p>

<p>Appeal íwm a judgment in favor of the plaintiff, entered upon a verdict rendered at the Monroe Circuit.</p>

<p>Appeal frorii a judgment of tlie Court of Sessions of Erie county, affirming a judgment of the Police Court of the city of Buffalo.</p>

<p>Sale of adulterated butter — what must be shown to authorize a conviction under chapter 246 of 1882 — what to rebut the presumption created by second section — sale of adulterated as well as of spurious butter prohibited.</p> <p>To justify the conviction of a person accused of violating section 1 of chapter 246 of 1882, by selling a substance that is not butter, upon the representation that it is butter, it is not necessary to prove that the seller intended to deceive, or that he knew that the article sold was not butter. The seller subjects himself to the penalty imposed by the statute bv making the representation, not knowing it to be true.</p> <p>The second section of the act provides that the sale by any person of such oleomargarine, butlerine, suine or other substance not butter, representing the same to be butter, shall be deemed presumptive evidence of the guilt of such person.</p> <p>Held, that the presumption created by this section was not met by showing the absence of knowledge and intent to deceive, but only by controverting the testimony on the part of the prosecution tending to show the sale or the false representation. <</p> <p>The evidence produced upon the trial of this action showed that the defendant sold at his grocery store, in Buffalo, an article which he represented to be butter, and which, on being analyzed, was found to contain about seventy-five per cent of butter, and twenty-five per cent, or thereabouts, of foreign fat, or fatty substances, other than butter. The foreign matter was not shown to be oleomargarine, suine or butterine.</p> <p>Held, that the evidence showed the defendant to have been guilty of a violation of the act, which prohibited the sale of not only the various kinds of manufactured butters specified in tbe act, but of any substance not butter, and, therefore, of any butter adulterated with foreign substances, without regard to the degree of the adulteration.</p>

Morris and Castile to build an iron bridge across the Genesee river at St. Helena. commissioners of highways of Mt. Morris. freeholders, etc. commissioners of highways of Castile.

<p>Appeal from a j'udgment in favor of tbe defendant, entered on a verdict rendered at the Monroe Circuit, and from an order denying a motion for a new trial made on a case.</p>

<p>Surety to a bond given by a general guan'dian— when he cannot defend upon the . ground that an agreement, that another surety should be procured, was not complied with.</p> <p>This action was brought upon a bond, under seal, given by Ellen A. Bangs and the defendant Osborn, as her surety, on the appointment of the former by the surrogate of Monroe county, as the general guardian of her step-daughter, the plaintiff, who was then a minor over the age of eighteen years. The action was defended by Osborn on the ground that the bond was signed and acknowledged by him, pursuant to an understanding or agreement between the plaintiff and the defendants that it should not be used or filed in the office of the surro- ' gate until and unless it should also be signed and executed by one of three individuals named, or some other responsible person, as co-surety, and that it should be returned to him, if such co-surety was not obtained, and that the bond was handed to the defendant Ellen A. Bangs, or to her attorney for her, upon that agreement or understanding.</p> <p>The bond was filed in the surrogate’s office, and was, although signed by but one surety, approved by him, contrary to the practice of the office which required two. The bond was in all respects fair, regular and complete on its face, as the bond of the guardian and one surety, and contained nothing to indicate that it was to be signed by any other person.</p> <p>Held, that as the plaintiff was a minor she was not affected by any notice she might have had of the said agreement or understanding, and that the defense could not be sustained.</p> <p>The People v. Bostwiek (33 N. Y., 445) distinguished and doubted; GrimwoodY. Wilson (31 Hun, 315) distinguished.</p> <p>Where there is nothing upon the face of the paper indicating that other sureties are expected to become parties to the instrument, and no fact is brought to the knowledge of the obligee before he accepts the instrument calculated to put him on his guard in respect to that point, and to induce him, in the exercise of ordinary and reasonable caution and prudence, to make inquiry before accepting the security, the fault cannot be said to rest to any extent upon the obligee, and the failure to procure other sureties is no defense.</p>

<p>Appeal from an order of the Wyoming Special Term requiring the plaintiff to separately state and number the two causes of action alleged in the second count of the complaint.</p>

<p>Usury — when the retention of a fixed amount under the name of exchange constitutes usury — exception in favor of banking associations, pi'ivate and individual bankers, created by section 68 of chapter 409 of 1882 — meaning of the words “private ” banker.</p> <p>In this action, brought by the surviving members of a firm conducting the business of banking, but not organized or doing business by virtue of any statute of this State, to foreclose a mortgage given by three of the defendants to secure the payment of all commercial paper discounted or held by the mortgagees, and bearing the names of the mortgagors, the defense of usury was interposed. The court found that before the mortgage was given it was agreed between the firm and the defendant Smith that the firm should lend him money upon his promissory notes, and that Smith should allow to the firm, in addition to interest on said loans, one-fourth of one per cent exchange upon the face of said notes. It appeared that the proceeds of the discount of the notes were delivered to the maker in the form of a credit on the books of the firm, and that the amount of such credit showed that the firm, on the discount of each note, retained the stipulated rate of exchange, in addition to interest at six per cent for the time each note had to run.</p> <p>The court also found that the notes were made payable in the city of New York at the desire and request of the plaintiffs; that there was then no rate of exchange between Rochester and New York, and that Smith had no bank account in the latter city. It also found that by the one-fourth of one per cent exchange was intended and meant a charge for letter-writing and collecting the notes in the city of New York, and the profits which would arise to the plaintiffs from making such collections by reason of the facilities which the plaintiffs, as bankers, had for making such collections, and that said charge was a reasonable one.</p> <p>jHeld, mat but for the statute hereinafter referred to, the retention of the one-fourth per cent, under the said agreement by the plaintiffs’ firm, would have been usurious and have rendered void the mortgage.</p> <p>Price v. Lyons’ Bank (83 JN. Y., 55); The Seneca Bounty Bank v. Schermerhorn (1 Den., 132), followed.</p> <p>That the retention of the said one-fourth per cent did not render the loan usurious in this case for the reason that the plaintiffs’ firm were “private ” bankers, doing business within this State, within the meaning of that term as used in section 08 of the general banking act of 1882, chapter 409, which provides that “the purchase, discount or sale of a bona fide bill of exchange, note or other evidence of debt, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts, oí' a reasonable charge for collecting the same, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest than six per centum per annum.”</p>

<p>Appeal from an order of the Erie County Court, denying a motion to compel the plaintiff to receive an unverified answer.</p> <p>The plaintiff is an infant, and her guardian ad litem verified the complaint by an affidavit stating that he was sncli guardian and that the complaint was true of his own knowledge, except as to the matters therein stated to be alleged on information find belief, and as to those matters he believed it to be true. The defendants served an answer without verification, which was returned because it was unverified. Thereupon the defendants moved to require its acceptance as an answer to the complaint, and from the denial of the motion this appeal is taken.</p>

Appeals from orders of the Erie Special Term, vacating attachments and denying motions to amend the affidavits on which they were issued. The attachments were granted upon the ground that the defendants had assigned their property with intent to defraud their creditors; and it appears by the affidavits that on the 12th day of November, 1885, they made a general assignment of their property in trust for the benefit of their creditors.

The petitioner bases the proceedings which she has instituted upon the provisions of section 2302 of the Code of Civil Procedure. She claims to be entitled to the real estate described in the petition, if Maria McLean be dead without issue of her body surviving, and if one John Lane be also dead, as is averred in the petition.

<p>Judgment by confession — when invalid because of a failure to state in detail the facts and circumstances out of which the indebtedness avrose— Code of Civil Procedure, sec. 1274.</p> <p>In this action, brought by a judgment creditor to set aside as fraudulent a judgment confessed by the defendant John C. Doty, in favor of his wife, it appeared that the statement upon which the judgment was entered, alleged in relation to the indebtedness that the debt for which the judgment was confessed arose upon three several promissory notes in writing, which were then described, the dates, amounts and times of payment being set forth. It was then stated “that all of said notes are past due, and the sum of $5,718.77 is now due and owing to the plaintiff from me upon said notes this day; that the three several notes above stated, and upon which this judgment is confessed, was given by the defendant John O. Doty to the plaintiff Susan F. Doty at the dates above stated, and for the amounts above stated; and all of said notes were so given by said defendant to plaintiff for money loaned to the defendant by the plaintiff, and the amount now due and owing to plaintiff by me, the defendant, upon said notes, for borrowed money, borrowed of plaintiff, is the sum of $5,713.77.”</p> <p>#eld, that the statement was fatally defective, in that it did not state the sum of money borrowed; that the statement would be literally true even if the real sum borrowed was less than the face of either of the notes.</p> <p>Upon the tridl the wife was examined as a witness in her own behalf and testified that one of the notes was not given for money loaned by herself to her husband, but that on the day it bore date she signed a note as security for her husband in the sum for which it was made, and pledged securities of her own to secure its payment, the proceeds of the loan being received by the husband, which note remained unpaid.</p> <p>Seld, that the failure to state these facts in the statement rendered the judgment entered thereon fraudulent and void as to the husband’s creditors.</p>

<p>Appeal from a judgment, entered upon a verdict in the plaintiff’s favor at the Orleans Circuit for the sum of seventy-three dollars damages and costs, and from an order denying the defendant’s motion for a new trial, founded on the judge’s minutes.</p> <p>The defendant is a corporation organized under the general railroad act. The line of its road is located over the plaintiff’s farm, through which it acquired the right of way for its road-bed of the customary width. One of the plaintiff’s fields, consisting of thirteen acres, and used as a pasture, lies on the south-westerly side of the defendant’s lands and adjacent thereto.</p> <p>It was admitted upon the trial that for a period of nine weeks from the, 1st day of May, 1884, the defendant neglected and omitted to erect or maintain suitable fences of the height and strength of a division fence, as required by law, along the sides of its railroad, across the land of the plaintiff, and that in consequence of the omission the plaintiff was deprived of the use of his said pasture lands for the said nine weeks. The plaintiff gave evidence tending to prove that his damages, resulting from the loss of the use of his pasture field, was seventy-two dollars. The defendant gave no evidence on the question of damages, and the case states that it waived the right to go to the jury on that question, and thereupon the court directed a verdict, to the jury, for the sum of seventy-two dollars.</p> <p>At the close of the evidence, the defendant requested the court to direct a verdict in its favor, for the reason: First.’ That the plaintiff has failed to make out a cause of action against the defendant. Second. That the statutory obligation imposed on the defendant to erect and maintain fences of the height and strength of a division fence, required by law, does not give the adjacent landowner a right of action to recover damages of the nature and character of those claimed by the plaintiff, arising from an omission to erect and maintain a fence, and that the damages, which maybe recovered under the provisions of the statute, are limited by the terms of the statute to injury and loss of stock entering upon the lands of the railroad company by reason of such defective fence, which shall be done by the agents or engines of the defendant, while operating the railroad. Third. That the plaintiff had a remedy by mandamus, •or by action, to compel the railroad company to build a fence. The motion was denied, and the defendant excepted.</p>

The plaintiff received injuries to her person by reason of the defective condition of a sidewalk within the limits of the village of HornellsviUe, and recovered a judgment on a trial before a referee for the sum of $356. Costs were taxed in her favor for the sum of $185.82. The defendant moved to set aside the taxation upon the ground that the plaintiff did not, before commencing her action, present her claim for payment to the chief fiscal officer of the corporation.

, The decedent died on the 30th of November, 1883, at the age of sixty-five years, leaving him surviving Isabella McL. Baird, his widow, and three children, being the owner of both real and personal property of the aggregate value of $12,000.

P. Read, the administrator of the estate of Elizabeth Read, the decedent, to render an account. Letters of administration were issued upon the estate of the deceased on the 18th day of May, 1875, and her only children and next of kin were the said administrator and E. A. S. Rockwell.

<p>Appeal from a judgment of the Monroe County Court reversing proceedings instituted in the Municipal Court of the city of Rochester by the appellant, to remove Robert McIntyre, the respondent, from the possession of certain premises situated within the city of Rochester as an intruder, under and in pursuance of the provisions of section 2232 of the Code of Civil Procedure.</p>

At the December Special Term, in 18S5, the plaintiff’s complaint was dismissed, without trial, with costs. The case was on the calendar for the February term of the same year. Among the items of disbursements allowed was thirty-two dollars, travel fee of the witness Hawley from the city of New York to the city of Rochester, for attendance at the February term.

The action was brought to restrain the officers of a corporation from paying to themselves salaries fixed by them in their own favor, and to compel them to refund the amount already received.

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury at tbe Ulster Circuit.</p>

<p>Appeal from a judgment in favor of tlie plaintiff, entered upon tlie verdict of a jury rendered at the Saratoga Circuit.</p>

The injuries, to recover damages for which this action was brought, were alleged to have been sustained by the plaintiff’s son on the 31st of August, 1882, while walking upon abridge crossing railroad tracks in Liberty street, in the city of Troy. The motion for a nonsuit was granted by the court on the ground that it was the duty of the railroad company, and not the city, to keep the bridge in repair.

<p>Civil damage act — when evidence to show that another judgment has already been recovered against the defendant for the same act is inadmissible.</p> <p>This action was brought by the plaintiff, a minor, by his mother as his general guardian, to recover damages for injury to his means of support occasioned by the death of his father by means of intoxicated liquors sold to him by a lessee of the defendant. Upon the trial the defendant offered, but was not allowed, to prove that the mother, who was the general guardian of the plaintiff, had already recovered a judgment against the defendant for the sum of $2,000 for damages sustained by the death of the same party, caused by the same intoxication, and that the said sum had been paid to her.</p> <p>Held, that the evidence was properly excluded, as no claim was made in this case for any exemplary damages.</p> <p>Mullen v. Christian (22 W. Dig., 59) followed and explained.</p>

Francis Connors died August 17, 1883, and was the owner of certain real estate in the city of Albany. He made a will August 9, 1883, which was duly probated, which provided: “First.

The matter was brought before the court upon a certiora/ri, issued under chapter 269 of 1880, to review the action of the board of assessors. The lands in question were brought within the boundaries of the city of Alban}', in 1870, by chapter 139 of the Laws of that year.

The action was brought upon a policy of fire insurance for $1,500 for one year, issued by the defendant to the plaintiffs May 17,1884, “ on their two-story frame shingle roof dwelling and saloon, and the additions attached, situated on the north-east corner of South and Second streets in the village of Waterford, New York.” The insurance under this policy was, by the terms thereof, made subject, among others, to the following conditions, limitations and requirements, and in…

Motion by defendant for a new trial on exceptions ordered at the Albany Circuit to be heard in the first instance at the General Term. The defendant was sued as surety for George W. Sherman, upon an indebtedness existing against Sherman as plaintiff’s agent, alleged to have accrued between September, 1870, and January, 1872.

Appeal by tbe defendant Joel B. Morehouse, by his committee, from a judgment, entered upon the trial' of this action at the Sara-toga Special Term.

The action was brought upon three promissory notes, amounting in all to $5,000, signed by the “ Lawrence Brewing Co., S. A. Jewett, Atty.” The plaintiff proved a partnership between defendant White and Win.

<p>Fraud against ereditors — what proof admissible to sustain an action for money received from a deceased person — 1858, chap. 814, sec. 2.</p> <p>The complaint in this action, brought by the plaintiff, as executor of one Thomas U. Jones, alleged that the defendant had, on January 13, 1883, received $1,035 in money belonging to the testator, which he refused to pay after demand had been made therefor. Upon the trial it was shown that the money had been received on the day named, the defendant claiming title thereto by a gift from the testator, consummated on January 29, 1883. The plaintiff, to show that the gift was fraudulent as to the creditors of the testator, produced and offered to prove the execution of a note made by the testator on November 7, 1882, to the order of the plaintiff. The evidence was excluded by the court on the ground that it was not competent under the pleading.</p> <p>Held, that this was error. (Follett, J., dissenting.)</p> <p>That the plaintiff had a right to show that he was a creditor of the testator in ordei to bring the case within the provisions of section 2 of chapter 314 of 1858, declaring that every person who shall, in fraud of the rights of creditors, have received and taken, or in any manner interfered with the estate, property or effects of any deceased person, shall be liable in the proper action to the executors or administrators for the property or its value.</p> <p>That as the evidence was admissible under the issue as it stood, the plaintiff was not required to direct the attention of the court to the reasons for offering the evidence.</p>

<p>Appeal from a judgment, entered upon a verdict rendered at the Oswego Circuit, and from an order denying a motion for a new trial made upon the minutes and upon the exceptions taken by the plaintiff, and on the ground that the verdict was against the evidence given on the trial and was wholly unsupported by any evidence.</p> <p>The action was brought upon a promissory note executed by the defendant in the following language, viz.:</p> <p>“$1,535.55. Eulton, Oswego County, N. Y., )</p> <p>September 3, 188é. )</p> <p>“ Six months after date I promise to pay to O. Howell, or bearer, fifteen hundred thirty-five and dollars at the residence of T. E. Wright, in Oswego Falls, value received, with use.</p> <p>“ (Signed) T. E. WEIGHT.”</p> <p>The complaint alleged that the note was transferred to the plaintiff before maturity for a valuable consideration, and that the plaintiff was the owner of the note. The answer put in issue the transfer by the payee to the plaintiff, and also the plaintiff’s ownership of the note, and denied that the defendant “ received any value for the making and delivery to the payee thereof of the promissory note set forth in the complaint, and avers that said note was and is without consideration and void.” Plaintiff produced the note in evidence and rested. Thereupon the defendant called the plaintiff as a witness. He was examined touching his ownership of the note, and in regard to the time when he received the transfer from the payee. His evidence was uncertain and fluctuating and conflicting as to the time when he became the owner of the note. The defendant proved by Kellogg that he, as agent for one Case, on the 3d day of September, 1884, received from Orlando Howell, the payee in the note, three notes executed by the defendant upon which there was due at that date $3,069.50, and that he paid said Howell therefor $1,535.55 as the agent of one George M. Case.</p> <p>The defendant was sworn as a witness in his own behalf and admitted the execution of the note alleged in the complaint. He testified that he had a conversation with Orlando Howell, the payee in the note, on the third daj'of September. The witness continuing in his testimony said, as to the interview on the third of September, viz. : “ I did say to Mr. Howell on that occasion that I would not sign the note on that day, but that I would in a day or two, because I did not want to be asked questions and lie about it; I told Howell I would sign the note for the other half; I told him that at the interview at Howe & Rice’s office, I think, and I am pretty confident that it was prior to September third, and prior to Howell’s going to the bank and getting his money of Kellogg, that this conversation occurred, and I promised to sign the note for the balance.” He also testified: “ I did not sign any paper at that time; I told Mr. Howell at that interview that he had better, I think that is the way I put it, take his fifty cents on the dollar because I didn’t know if I ever paid him anything, and I would feel better to know that he was having part of the assets; no note was drawn there that I saw, but I told him I would give him a -note and pay it if I ever got able; that is all I remember; I suppose that this note was given in accordance with that agreement; I signed it some time after; I stated on the direct-examination that I was desirous that each of my creditors should be paid in some way.”</p> <p>No evidence was given contradicting the testimony of the defendant. At the close of the evidence plaintiff asked the court to direct a verdict for the plaintiff for the amount of the note in suit on the ground that no defense had been proven to the note even though plaintiff was not shown to be a bona fide purchaser for value before maturity. That the evidence showed that prior to taking the fifty cents on the dollar the defendant had agreed to give his note for the balance, and had given this note in accordance with that agreement. The requests were denied, and to the rulings the plaintiff excepted. The case was then submitted to the jury on the two following questions, viz.: First, whether the plaintiff was a bona fide holder of the note .before due; and, sepond, whether there was any consideration for the note. The court charged, among other things, viz.: “ That a mere moral obligation is not sufficient to support a promise, and the question here is whether, notwithstanding Mr. Case bought up that three thousand dollars of indebtedness at fifty cents on the dollar, and the moment he bought it owned it as an obligation, that he could enforce against the defendant for the face value of it; although he had paid fifty cents on a dollar for it, that notwithstanding that fact if the defendant requested him to do it, telling him at the time that he made the request that if he did it, if he took fifty cents from Mr. Case, that he, the defendant, would give him his note for the balance, and that, acting upon that, Mr. Howell went and accepted that fifty cents, when otherwise he would not have accepted that fifty cents but for that promise; if these are the facts, that raises a consideration for the note which will support it, and would enable Mr. Orlando Howell himself to enforce it if he had brought the suit in person instead of having sold it to his son; ” also, viz.: “ If Mr. Case did buy these notes without any request from Mr. Wright to Mr. Howell that he should take the fifty cents, and after they completed the transaction Mr. Wright had promised Mr. Howell to give him his note and had given it, there would have been no legal obligation for him to have paid that note, but if before Mr. Howell parted with these obligations against Mr. Wright, which on their face amounted to over three thousand dollars, if before he sold this three thousand dollars worth of obligations face value for fifteen hundred and some odd dollars, he was requested by the defendant to do so, and he did so on the faith of the defendant’s promise that if he did so, he would give him his note for the other fifty cents, then, gentlemen, as I said before, that is a full consideration for the note, and it can be enforced by the plaintiff whether he is a bona fide holder or not, as it could have been enforced by Mr. Orlando Howell had he brought the suit in his own name.”</p>

The complaint alleges the creation of an incorporation called the “ Utica and Schenectady Railroad Company ” by the legislature on the 29th day of April, 1833, by the passage of chapter 294 of the Laws of that year, with a corporate existence of fifty years, and that the term expired on the 28th day of April, 1883.

Crain died seized on the 15th day of June, 1876. For about twenty years preceding his death Almeron W. Crain had been in partnership with Perry P. Crain, under the firm name of Almeron W. Crain & Sou, and the firm made their promissory note of $1,000, payable to the plaintiff or bearer, on the 21st day of March, 1865, upon which note a judgment in this court was recovered against Perry P. Crain, as surviving partner, March 17, 1883, for $866.15, the balance due thereon, and…

<p>Appeals from an order of the Onondaga Special Term, granted January eleventh, and from a decree of the surrogate of Onondaga county granted on the 16th day of January, 1886, “ allowing an execution to issue upon the judgment heretofore docketed in this action in favor of the plaintiff and against the defendant, in the Onondaga county clerk’s office, to the sheriff of the county of Onondaga as provided by section 1380 of the Code of Civil Procedure of the State of New York.</p> <p>Note.— The following opinion was delivered upon the appeal from the decree of the surrogate, In the Matter of the Petition of Silas Duett, etc., as in title above:</p> <p>Hardin, P. J. — According to the construction given to section 1380 of the Code of Civil Procedure, in Duett v. AVoord, decided at this term-of the court in the opinion of Hardin, P. .T , the order of the surrogate was premature, three years not having elapsed from the time of granting letters of administration before the decree of the surrogate authorizing an execution on the judgment.</p> <p>The surrogate had no power to grant the decree. That section prescribes, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the deceased, (See opinion in Duett v. AVoord, supra.)</p> <p>Decree reversed, with ten dollars costs and disbursements.</p> <p>Boardman and Follett, JJ., concurred.</p> <p>James Duell recovered a judgment against Francis Alvord, in the Supreme Court, for tlie sum of $1,362.83 damages and costs, which judgment was entered in Onondaga county on the 7th day of May, 1877, and on the 4th of June, 1884, James Duell assigned and transferred to Silas Duell the judgment, and he became the owner and holder of the same. On the 10th day of February, 1884, Francis Alvord died, leaving him then surviving Caroline Gr. Alvord, his widow, and Charles Gr. Alvord and M. Frances Learned, his only next of kin and heirs-at-law.</p> <p>On the 13th day of May, 1884, by the surrogate of Onondaga county, letters of administration were issued to Charles G-. Alvord on the estate of Francis Alvord. The moving affidavits alleged that on the 24th day of April, 1877, “ and while the indebtedness for which the said judgment was recovered still subsisted, the said Francis Alvord, in his lifetime, was possessed of certain real estate,” situated in Onondaga county as given. The moving affidavit contains the following statement, viz.: “And that the debtor on said 24th day of April, 1877, fraudulently transferred the same to one Orson C. Gleason, his brother-in-law, who afterwards transferred the same to the wife of said Francis Alvord, the said Caroline G. Alvord, with intent thereby to hinder, delay and defraud the creditors of the said Francis Alvord, and especially the said James Duell,” and Silas Duell, the assignee of the judgment; and the assignee, Silas Duell, states further in his affidavit that he is “ desirous of having the said transfer adjudged fraudulent and void as against the creditors of the said Francis Alvord, especially the said James Duell and this deponent, and to have the same set aside and the said judgment above set forth adjudged a lien upon the premises herein-before described. That said judgment did not become a lien upon said real estate under section 1251 of the Code of Civil Procedure, except as above stated. And it is stated that the personal estate of Francis Alvord will not exceed the sum of $100. The affidavit also states “ that said judgment is wholly unsatisfied and unpaid, and that no execution has ever been issued thereon.”</p> <p>To oppose the motion the affidavit of Orson C. Gleason was read, denying “ that the said conveyances to him by Francis Alvord and by him to said Caroline G. Alvord were, or either of them was, with intent to hinder, delay or defraud the creditors of said Francis Alvord, and especially tlie said James Duell or Silas Duell, or either of them. And this deponent avers that said conveyances were made in good faith and for valuable considerations,” and numerous facts and circumstances are detailed to show the good faith of the transfers. Also, an affidavit of Caroline G. Alvord corroborating the affidavit of Gleason in the matters already referred to.</p>

<p>Evidence — testimony of a draughtsman of a will not inadmissible because he is an attorney and named as a trustee therein — Oode of Civil Procedure, sea. 835 — a donee of a power, entitled to compensation for services, is not disqualified from, testifying as to personal transactions.</p> <p>Upon the hearing of an application for the probate of a will the proponents offered to prove by the draughtsman of the will, who was an attorney and a trustee under it, the instructions received by him, and that they were carried out by the will. The testimony was rejected on the ground that it was incompetent under section 835 of the Code of Civil Procedure.</p> <p>Held, error.</p> <p>The will directed that one liearup and Helen, his daughter, should have the power to care for the person of an invalid son of the testatrix, and to employ assistants to take care of him, and that her executors should pay to them such reasonable sums as they might fairly expend in the care and maintenance of the son, “and such reasonable compensation as they should, respectively, receive for their services or care. ”</p> <p>Held, that the daughter, Helen, was not beueficially interested so as to be disqualified from testifying as to personal transactions with the testatrix under section 819 of the Code of Civil Procedure.</p>

The action was brought to restrain the defendant, one of the executrices of the will of William P. Johnson, from exercising a power to sell the real estate of the deceased for the payment of certain debts and legacies. At the testator’s death (June 21, 1871) he was indebted to Amasa Abbott in the sum of $500, to Harriet Oonkling in the sum of $400 and to Nicholas Yroman in the sum of $600.

The notice of appeal stated that the appellant intended to bring up for review on said appeal the order giving an extra allowance of costs in said action to the defendants.

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

62 damages and $917.10 costs. The action was brought to recover damages upon a written contract, dated the 26th day of November, 1875, wherein the defendants contracted with the plaintiff and agreed to “ make for the party of the second part (the plaintiff), at the works of the said party of the first part (the defendant) at said Ilion, in a good, workmanlike manner, two hundred sets of milk coolers, patented June 29, 1875, and the right to manufacture, which in the State of…

The object of the action was to recover for the services of Milo Goodrich, as attorney in an action commenced and conducted by him for one Jennie L. Graves, and from which she has since his death recovered about $12,000.

<p>Appeal from an order denying a motion made by the plaintiff to ¡have the defendant’s costs stricken from the judgment.</p>

The action was brought by a judgment creditor of Caleb Y. Stebbins to set aside a conveyance of real estate and a hill of sale of personal property, on the ground that the transfers were fraudulent and void as to creditors of Caleb Y. Stebbins. The transfers were made on the 21st day of December, 1881. The plaintiff recovered a judgment against the debtor February 2, 1883, for $638.78, and issued an execution, which was returned wholly unsatisfied.

The following opinion was delivered by Judge Martin on deciding the motion: Martin, J.: This was a motion under section 32(55 of tlie Code of Civil Procedure for a new taxation of costs. • The action… Held: as a matter of law, that the plaintiff could not recover upon the issue joined in that cause of action. Would it have been more than such a holding if it had directed the jury to find for the?.defendant ? In Williard v. Strachan (3 Civ. Pro.

<p> Libel —presumption that a complaint drawn and signed by an attorney is a privileged communication. </p> <p>The plaintiff brought this action for libel against the defendant, the libelous matter alleged being contained in the complaint in a former action brought by one Cataline against this plaintiff to have a judgment recovered against Cataline set aside and declared void, upon the ground that it was obtained by the false and perjured evidence of this plaintiff. The defendant herein acted as the attorney for Cataline and as such signed the complaint in that action, upon the trial of which the complaint was dismissed on the ground that no cause of action was stated therein.</p> <p>Upon the trial of the present action the said complaint having been put in evidence, and no other evidence having been offered, this action was dismissed upon the ground that the complaint was a privileged communication.</p> <p>Held, that as it was admitted that no publication of the complaint other than, that which was incident to the ordinary conduct of the action had been made, the ruling of the court below should be affirmed.</p> <p>That the judgment dismissing the complaint in the first action, upon the ground that it did not set forth a cause of action, did not necessarily show that the plaintiff therein had in fact no cause of action, as the pleading itself might have been defective, and essential facts might have been omitted therefrom.</p> <p>That in the absence of evidence showing that the defendant-acted with express malice and was using the judicial forms in bad faith for the purpose of assailing the plaintiff’s character, it would be presumed that the complaint was a privileged communication.</p>

” The order shows the ground upon which the motion was denied, to wit: “ That the motion be and the same is hereby denied upon the ground that but one cause of action, namely, trespass, is alleged in the complaint.” The complaint is in the following language, viz.: “ That the defendant and divers other persons, at the town of Tully, said county, on or about the 30th day of September, 1885, in the nighttime, and after the said plaintiff had retired, and while she was in bed,…

01 damages. Prior to 1884, and during that year, the defendants Persis McOully and Edward McCully were copartners in business, at Fulton county, under the firm style of McCully & Co. On the 30th day of .December, 1884, the firm of McCully & Co. made a general assignment of its property for the benefit of its creditors, to the defendant Henry E. Nichols, in trust, who accepted the assignment and qualified and took possession of the property of the firm and proceeded to…

<p>Appeal from an order made at Special Term appointing a referee to ascertain tlie facts and to report the same, with his opinion, with all convenient speed.</p> <p>The motion was made bj.a stranger to the action, one Otto Denecke, to set aside as fraudulent the judgment entered herein upon the confession of the defendant.</p>

<p>Appeal from an order granting and continuing an injunction.</p>

<p>Counter-claim, or set-off — ■ when a claim, arising from the act of cm executor cannot he set off against a claim due to the testator — Code of Civil Procedure, sec. 506.</p> <p>The plaintiffs brought this action to recover moneys alleged to have been due to their testator, at the time of his decease, upon a note signed by the defendant, and for other money advanced and paid out for defendant’s use. The defendant denied the indebtedness, and set up as a counter-claim a demand against the plaintiffs for the conversion of certain stocks and securities which he had deposited with the testator during his lifetime, the counter-claim being based upon acts of the plaintiffs done after the death of their testator.</p> <p>Held, that as the right of the defendant to recover for the conversion of the securities was based upon the wrongful acts of the executors, and not upon those of the testator, it was not available as a counter-claim or set-off in this action.</p>

<p>Appeal from a judgment in favor of the plaintiff, directed by the court at circuit.</p>

<p> Negligence — what fads-impose upon a railroad company, emitting hot cinders from, its engine, the duty of showing the absence of negligence on its part. </p> <p>Upon the trial of this action, brought to recover damages for personal injuries sustained by the plaintiff, it appeared that while walking on Third avenue, in the city of New York, the plaintiff was injured by a hot cinder, which fell from one of the defendant’s engines into her eye, causing a serious injury to it. She gave no other evidence to establish the negligence of the defendant. A motion for a nonsuit having been denied, the case was submitted to the jury upon the plaintiff’s testimony. The jury found for the plaintiff, but the verdict was set aside by the justice who presided at the trial, upon the ground that the plaintiff had failed to prove that the accident was caused by the negligence of the defendant or its servants.</p> <p>Held, that the justice erred in so doing.</p> <p>That as the plaintiff in using the street was exercising a right entirely independent of, and in no -way connected with, the defendant’s use of it, she was entitled to be protected in the exercise of such right, and that after she had proved the injury, under the circumstances disclosed, the negligence of the defendant was established prima facie, and the onus was thrown upon the defendant to show absence of negligence, if that could be done.</p> <p>Searles v. The Manhattan Railway Company (5 East. Rep., 66) distinguished.</p>

Ryan, relator, for a peremptory mandamus to compel the Civil Service Supervisory and Examining Boards of the city of New York, and Charles H. Woodman, secretary thereof, to entertain the application of said Richard W. Ryan, and notify him to appear for examination pursuant to the civil ‘service regulations of the city of New York.

<p>Appeal from an order overruling a demurrer interposed to the complaint.</p> <p>Upon overruling the demurrer at Special Term the following opinion was delivered:</p> <p>“ Lawrence, J.:</p> <p>“ In the case of Walsh v. Trustees of the New York and Brooltl/yn Bridge (96 N. Y., 427-439) it was held that the said trustees were not to be considered as a corporation, but as merely agents for and representatives of the two cities, and as such they were entitled to all the immunities of public agents, and that, therefore, an action to recover damages resulting from the negligence of a laborer engaged in the construction of the bridge was not maintainable either against the trustees of the New York and Brooklyn bridge as a corporation or against the trustees individually. The plaintiff in that action has now brought his action against the cities of New York and Brooklyn, and a demurrer has been interposed to his complaint, on the ground that it does not state facts sufficient to constitute a cause of action. In the opinion rendered in the action against the trustees heretofore referred to, Justice Earle, in delivering the opinion of the court, refers to the cases of Appelton v. The Water Commissioners (2 Hill, 432), and Bailey v. The Mayor (3 id., 531; and 2 Denio, 433), and Ehrgott v. The Mayor, ete. (96 N. Y., 264), in support of the proposition that the trustees represented and acted for the cities of New York and Brooklyn as their agents. (96 N. Y., 437.) But it will be seen that at the close of his opinion (96 N. Y., 439), while there is a very strong intimation that if responsibility rests anywhere for the carelessness of the laborer causing the injury to the plaintiff, it rests upon the two cities; the point'is not disposed of. I had occasion, recently, in the case of The People éx rel. Byan v. The Civil Service, eta., Boards of the City of New York * to examine most of the cases cited in the points of counsel herein; I there came to the conclusion that the present aqueduct commissioners were the agents of the city of New York, and the authorities upon which that decision was based lead me to the conclusion that the trustees of the bridge were the joint agents of the defendants. (People ex rel. Ryan v. Civil Service Supervisors, 3 How. Pr. [N. S.], H.) I am, therefore, of the opinion that the complaint does state facts sufficient to constitute a cause of action against the defendants, and that there should be judgment for the plaintiff on the demurrer, with leave to the defendants to answer over on payment of costs.”</p>

<p>Life insurance — agreement to issue a paid-up policy for an equitable amount — how that amount is to be determined.</p> <p>The defendant issued a policy of insurance upon the life of Thomas Rigney on April 23, 1873, for the sum of $10,000, payable at the time of his decease; for which an annual premium of $762 was reserved. The premiums, twelve in number, were paid by him, and amounted in all, with a note of $2,291, to the sum of $9,144. By the policy it was agreed that, after three annual payments had been made, the company would at any time pay the holder of the policy its fair cash value upon its surrender while in force, or, in lieu of such cash value, would grant a paid-up policy for an equitable amount. The policy was assigned to the plaintiffs, who brought this action to compel the defendant to deliver a paid-up policy. The court determined that the plaintiffs were entitled to a paid-up policy for $9,144, subject to the amount due on the note.</p> <p>Meld, error; that this decision, gave the plaintiffs the fall benefit of all the premiums paid, and deprived the company of that portion which it had earned, by the risk taken upon the life of the assured, during the time the policy issued to him had been running.</p> <p>That the plaintiffs were entitled to what was the equivalent of the present value of the policy issued to Ttigney; and that was to be determined by the period for which it had then run, the amount of the annual premium, Kigney’s time of life, and the probability of its continuance, according to the tables consulted and acted upon for such purposes.</p>

<p>Appeal from an order quashing and dismissing a writ of certiorari as to all the petitioners named therein except Nelson J. H. Edge.</p>

<p>Appeal from a judgment, sustaining a demurrer and directing the dismissal of the plaintiff’s complaint.</p>

<p>Action for specific perfoi-manae— the purchaser will not be compelled, to accept a doubtful title — what must be shown to authorize him to recover damages in such a case — who should be made parties defendant — allowance of costs to different defendants.</p> <p>This action was brought for the specific performance of a contract for the sale and conveyance of a dwelling-house, statuary, furniture and a lot of land, in the city of New York, formerly owned by one Anna McCabe, who died in 1879. On October 18,1879, the administrators of the said McCabe, together with the defendants Francis and James Berry, who claimed to be her sole heirs-at-law, entered into an agreement with the plaintiff for the use and occupation of the premises by him for three years and six months from November 1, 1879, with an option to him, if he should so elect prior to November 1, 1880, to purchase the premises, furniture and statuary for the sum of $31,500, payable $11,500 in cash and $70,000 by a bond, secured by a mortgage on the premises. The plaintiff having elected to purchase, the defendants Berry, as heirs-at-law, executed a deed, which, together with a bond and mortgage prepared by them, were tendered to the plaintiff on November nineteenth, with a request that he should accept the deed and execute the bond and mortgage, both of which requests were declined by him, for the reason that the title which would be conveyed was not satisfactory, in that it was not satisfactorily established that the two defendants were the only heirs-at-law of the said McCabe.</p> <p>After this, negotiations continued between the parties until March 17, 1881, when the defendants Berry conveyed the premises to the defendant Nevius, after which, and while still in possession of the premises under the leasehold part of the agreement, the plaintiff brought this action. It was proved on the trial that, prior to the tender of the deed, the plaintiff had expended $889 for an examination of the title, and also that the property, at the time he elected to take the title, was worth the sum of $40,000.</p> <p>The court held that the evidence showed that the defendants were not able to convey such a title to the property as the plaintiff could legally require, and directed a judgment relieving him from all obligation to take the property, and allowing him to recover, against the defendants Berry, the expenditures incurred in searching the title.</p> <p>Held, that the judgment was proper and should be affirmed.</p> <p>That as the proof failed to show that the defendants Berry were not the heirs-at-law of Anna McCabe, or that there were any other persons entitled as her heirs to the enjoyment of her property, the plaintiff could not recover the difference between the purchase-price and the value of the property.</p> <p>That, as after the plaintiff’s refusal to receive the deed the contract was still the subject of negotiations between the parties, and was not regarded as terminated, this action was properly brought to test the right and ability of the Berrys to convey a good title.</p> <p>That a claim for moneys expended by the plaintiff in decoration and cabinet work, amounting in value to between $4,300 and $4,500, was properly disallowed, as it appeared that these improvements were made before the plaintiff elected to purchase and while he was holding as a tenant under the agreement.</p> <p>That the administrators of Anna McCabe were properly made parties to the action as they had executed the agreement and agreed by its terms to sell the furniture.</p> <p>That Nevius, the grantee of the Berrys, was properly made a party, as he took title subject to the agreement made with the plaintiff, and would, if the Berrys title had been established, have been required to join in the conveyance to the plaintiff.</p> <p>That as this could not be done, costs were properly allowed to him.</p> <p>That the wife of the defendant Francis S. Berry was not entitled to any costs, as no relief was demanded against her except that she should join in the conveyance if it were directed to be made.</p> <p>That the payment of rent by the plaintiff to Nevius in no way changed the legal or equitable rights of the parties, as it was paid with that understanding.</p>

<p>Conveyance of property hy a deed intended as a mortgage — an agreement that the right of redemption shall cease at a specified time will not destroy the right to redeem —as to the duty of the grantee to inform the grantor of the amount claimed to he due for expenditures — res adjudicata.</p> <p>This action was brought to obtain a decree adjudging a certain paper, purporting to be a deed, to be a mortgage, and to permit the plaintiff to redeem the premises described therein. At the time of the execution of the deed an agreement was entered into between the parties by which the defendant, the grantee, agreed to reconVey the property upon the payment of the amount of a mortgage existing in her favor, together with the consideration money paid by her, and all money paid out and expended and thereafter to be paid out and expended on account of said premises for interest, taxes, Croton water rents, insurance premiums, necessary repairs of said premises and payment of the first mortgage then upon said premises, with interest on all such moneys paid out at seven per cent less the amount received by the party of the first part for rents of said premises after first deducting from such rents the costs and expenses for collecting the same. The agreement provided that the right, thus secured to the plaintiff, to redeem should continue for three years. “But it is expressly understood and agreed by and between the parties to this agreement, that the said deed to the party of the first part is and shall remain an absolute not a conditional conveyance, and that on and after July 1, 1881, this agreement shall be void.”</p> <p>Held, that as it was intended that a right to redeem should be reserved to the plaintiff, the deed, though absolute in form, was in fact a mortgage, and that assuming it to be such it was impossible for the defendant to become absolutely vested with the fee unless by a new conveyance, or a foreclosure of the mortgage created by the agreement of the parties.</p> <p>That the clause inserted in the agreement attempting to define the nature of the deed should be rejected as utterly inconsistent with the relations existing between the parties and as surplusage.</p> <p>Queers, as to whether if the agreement had contained a proviso that if, upon the expiration of three years, the payments contemplated by it were not made, the conveyance should then become an absolute transfer in fee without the necessity of resorting to any court of justice for the purpose of carrying out its provisions, the fee might be held to have vested absolutely.</p> <p>Qumre, as to whether the defendant should not have made a demand upon the plaintiff for the payment of the lien, as from the license given to the defendant in the matter of expenditure it would seem to be impossible that she should know the amount due from her unless in some manner advised thereof.</p> <p>Hiller y. HcGweJcin (15 Abb. N. O., 20f).</p> <p>That a judgment, in a former action between the same parties, sustaining the defendant’s demurrer with leave to plaintiff to amend, upon the ground that the plaintiff was bound to make certain payments, and that he did not offer tó do so, did not make the question res adjudieata in this action.</p>

<p>Appeal from au order made at Special Term, denying a motion to vacate an attachment.</p>

, Esq., referee, to whom it had been referred to hear, try and determine all the issues in this action.

<p>Beview of illegal assessment —1880, chap. 369 — a bank cannot institute proceedings to review assessments on, the shares of stock of its stockholders.</p> <p>A national bank cannot institute proceedings, under chapter 369 of 1880, to review the legality of an assessment for a tax to be imposed upon the shares of the stockholders of the bank.</p> <p>People v. Wall Street Bank (39 Hun, 525} followed.</p>

This action was brought to obtain a judicial construction of tlie will of the late Robert R. Mcllvaine. The will contained the following among other provisions: First.

<p>Contempt — when a failure to pay money, pursuant to a judgment, cannot be treated as a contempt — when a failwe to return and canecí a note may be — a commitment will be sustained if one sufficient ground therefoi’ be shown, though others assigned therein cure insufficient — the remedy of one unable to comply with the order is under section 2286 of the Code of Civil Procedure.</p> <p>An action brought by Maria Y. Macovoy against tbe relator, in which he answered but did not appear upon tbe trial, was tried before the court, which found that the relator had, as was alleged in the complaint, obtained from the plaintiff, by means of false and fraudulent representations, her promissory note for $100, and also the sum of $300 as a deposit to secure tbe payment of rent reserved by a lease mentioned in the complaint, and directed a judgment for the return and cancellation of the note, and for the return of the sum of $300 deposited as security for the rent, and also for damages to the amount of $4,468.71. The relator having failed to comply with the provisions of the judgment entered in conformity with this decision, was adjudged by the court to be in contempt, a fine being imposed upon him and directions given that he be imprisoned until he delivered to the plaintiff and canceled the promissory note for $1CK), and untilhe should pay over and return to her the $300 deposited by her as security for the rent.</p> <p>Upon an application by certioran to be released from imprisonment, under a commitment issued to carry this order into effect:</p> <p>Eeld, that an objection to the sufficiency of the order and commitment, because of their failure to adjudge that the relator still had possession of the note and money, was properly overruled, as his possession of the note and money was to be assumed inasmuch as it did not appear that he had parted with either.</p> <p>That the failure to comply with the direction to pay over and return the $300 to the plaintiff did not justify his punishment as for a contempt, as the judgment therefor could be enforced by an execution issued thereon.</p> <p>People ex rel. Pries v. Riley (25 Hun, 587); Jaaquin v. Jaaquin (36 id., 378) followed.</p> <p>That in so far as the action was brought to procure a return and cancellation of the note, it was not an action brought to recover a chattel within subdivision 3 of section 1240 of the Code of Civil Procedure, but was an action for equitable relief, and a failure to comply with that provision of the judgment justified his imprisonment and rendered it legal until he should comply therewith.</p> <p>That if he could not comply with this direction his remedy was, by an application for relief, under section 2286 of the Code of Civil Procedure, and not by writ of certiorari or habeas corpus.</p>

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

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

<p>Action to determine the validity, construction or effect of a testamentary disposition of real property within this State — when jurisdiction over it is conferred by section 1866 of the Code of Civil Procedure — a demurrer cannot be sustained on a ground not specified in it.</p> <p>The complaint in this action, brought to determine the validity, construction and effect of certain provisions of the last will and testament of Mary Hopeton Drake and James Drake, set forth the wills and the codicils thereto, and alleged that they had been duly executed and admitted to probate. By the ninth clause of his will, James gave and devised to Mary, in case she should die without leaving lawful issue, full power and authority to devise and appoint by her last will and testament, or other instrument in writing, executed by her as therein mentioned, certain real estate, to all, or any, or either of three of his sisters named in the will, or to all, or any, or either of the lawful issue of said sisters after the death of Mary, and in default of any such appointment, he gave and devised the said real estate to his said sisters, and to their heirs and assigns, from and after the death of Mary, to be divided among them in equal shares, the issue of any sister dying during the lifetime of Mary to takfe the share of the parent.</p> <p>Mary died in 1884, unmarried, and without issue, leaving a will by which, after reciting the devise of the said real estate to her, and the authority to devise the same contained in the will of James, she disposed of the same to sundry persons in different shares. By a codicil to this will she revoked the devises made to three of the devisees, giving them other property, and devised other real estate to another person.</p> <p>The complaint alleged that the will and codicil of Maiy were void and inoperative and of no effect, in so far as they related to, or attempted to devise or appoint or dispose of lands in the complaint mentioned, and that as to them she had failed to exercise the power of appointment given to her in and by the last will of James, and prayed that the validity, construction and effect under the laws of the State of New York, of the wills of James and Mary, in so far as they related to the lands mentioned, be determined by the court.’</p> <p>Some of the defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and others upon that ground and also upon the further ground that the court had not jurisdiction of the subject of the action. An order was entered sustaining the demurrers upon the ground that the court had not jurisdiction of the subject of the action.</p> <p>Held, a mis-trial, in so far as concerned the demurrers interposed simply upon the ground that the complaint did not state facts sufficient to constitute a cause of action, as a demurrer could not be sustained upon a ground not stated in it.</p> <p>That it was error to sustain the demurrers interposed upon the ground that the court had not jurisdiction over the subject of the action, as such jurisdiction was conferred upon it by section 1866 of the Code of Civil Procedure.</p> <p>Weed v. Weed (94 3ST. Y., 243) distinguished.</p>

<p>Power of the tax commissioners of the city of New Tork to remit taxes illegally imposed — section 672 of chapter 410 of 1882, as amendedby chapter 530 of 1885.</p> <p>Land owned by the relator, included within the lines of a street or avenue, known as Melrose avenue, as laid down upon the map filed by the commissioners of the department of public parks, pursuant to the provisions of'chapter 604 of 1874, was duly entered upon the books of the appellants for the purpose of taxation, in the city of New York, for the year 1885. After the property had been so listed, and on June 13, 1885, chapter 530 of 1885 was enacted, by which section 672 of the consolidated act was amended by adding thereto the following clause: “ No tax or assessment shall, after the passage of this act, be levied or assessed or collected upon any unimproved land included within the lines of streets, avenues, roads, public squares or places shown and laid out upon any map or maps filed by the commissioners of the department of public parks, pursuant to the provisions of chapter 604 of 1874, and the laws amendatory thereof, or of the act hereby amended.”</p> <p>After the passage of this amendment the respondents levied a tax upon the land in accordance with the valuation theretofore made upon it. Within six months from the completion of the tax, the relator applied to the defendants for a remission of the tax, and upon their refusal to remit the same, applied for and obtained a mandamus requiring them to entertain his application and discharge the tax.</p> <p>Held, that the order directing the writ to issue was proper and should be affirmed.</p> <p>People ex rel. New Tork Medical College v. Campbell (93 N. Y., 199) distinguished.</p>

The plaintiff entered an open car on July 6, 1880, near One Hundred and Twenty-seventh street, New York city, and “got into the rear seat,” with his “ back to the rear platform.” He testified that some other persons came into the part of the car where he was sitting; that he “ got crowded out,” and the forward portion of the car being vacant, he stepped out on the step that ran along the side of the car to go to another seat; that “ in trying to get into another seat my head…

A ppeal from so much of an order made at the Kings County Special Term as denied a motion to vacate an order requiring the defendant to appear and be examined in proceedings supplementary to execution before a referee in the city of New York.

This action was brought to restrain the defendants, as commissioners of highways of the town of Deerpark, from entering on so much of plaintiff’s land as lies within the limits of the new Berme side highway, and to vacate and set aside all proceedings which have been had in the matter of the laying out of said highway. These proceedings were taken in pursuance of the Revised Statutes, as amended by chapter 696 of the Laws of 1881.

On the 28th of February, 1885, the sheriff of Kings county levied upon certain goods, and took them out of the possession of the plaintiff, who held them as assignee of Adolph Grunberg for the benefit of creditors. The plaintiff having claimed the goods, the present defendants, Moses May and Michael Levy, indemnified the sheriff. The goods were sold under execution, and brought $1,568 on such sale.

<p>Member of police force— what acts justify his dismissal from the force.</p> <p>The relator, a policeman of the city of Yonkers, was tried and proven to have falsely stated that one of his associates had been found in bed with' another man’s wife, and had asked a reporter to publish the statement in the Police Gazette.</p> <p>Held, that the charge was sufficient to call for his dismissal from the force.</p>

Appeals from orders made at the Westchester Special Term, denying a motion made to dismiss and discontinue the action in each of the above entitled cases. Both motions were made upon the ground that the mechanics’ liens, which these suits were brought to foreclose, had ceased through lapse of time, and that the liens having ceased these suits fall also, and must be discontinued, and from the denials of these motions the defendant owner, Charles Hillemeier, appeals.

Appeal taken by the Staten Island Rapid Transit Railroad Company from an order made at the Kings County Special Term, and entered in Richmond county, setting aside the report and appraisal of commissioners appointed to condemn property for railroad purposes.

<p>Election of remedies — when the commencement of an action and the issuance of a warmnt does not constitute an election — a pa/rty cannot acquire a lien upon property not owned by his debtor.</p> <p>In August, 1884, the plaintiffs were induced, by the delivery to them by the defendant Branscom of a forged note, to enter into an agreement to manufacture for him a large quantity of paper to be used in printing a book. In September of that year, Branscom, by the deli very of a similar forged note, induced the appellants above named to enter into an agreement to print the book. Pursuant to the contract and the direction of Branscom, the plaintiff delivered 150 reams of the paper to the appellants, who at the time of the commencement of this action had used but four reams of the paper and still had the remainder. Upon the receipt of the forged note the appellants had commenced the work of composition, electrotyping and printing, and claimed a lien on the paperforthe amount due them for so doing.</p> <p>When the plaintiffs discovered that the note received by them was a forgery, they brought an action in the Superior Court of New York against Branscom, in which an attachment was issued upon an affidavit charging him with having obtained their goods and money by fraud, and demanding damages. When they ascertained that the appellants still held the 146 reams of paper, they discontinued the action in the Superior Court, in which no complaint had been served, and brought this action to recover the said property.</p> <p>Held, that the action could be maintained. (Cullen, J., dissenting.)</p> <p>That the issuance of the attachment in the action in the Superior Court, and its discontinuance without the entry of a judgment, constituted no bar to this action.</p> <p>That the appellants could acquire no lien upon the paper by virtue of any arrangement with Branscom, for the reason that the latter had no right in or to the property which could be the subject or foundation of a lien.</p>

<p>Appeal from an order, entered at the Kings County Circuit, setting aside the verdict of a jury in favor of the plaintiff, and directing judgment for tbe defendant, and from the judgment entered thereon.</p>

<p>Appeal from an order of the surrogate of Kings county, directing a witness to answer a question put'to him on his examination before a referee.</p>

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

<p>Negligence — an employee violating a rule, which is necessarily or habitually violated, is not chargeable with contributory negligence.</p> <p>Upon the trial of this action it appeared that the plaintiff, a boy of fifteen years, was employed by the defendant to feed a press with strips of tin, out of which were stamped “ bottoms,” twelve “ bottoms ” out of each strip. While pushing the strip under the punch for the last bottom, his finger passed under the punch and was injured by it. In the factory were conspicuous notices forbidding the placing of hands or fingers between the dies for any purpose. The evidence of the boy tended to show that it was necessary, in the ordinary prosecution of his work, to place his fingers under the punch when the last bottom of the strip was to, be stamped, and that such was the ordinary custom in the factory.</p> <p>Held, that it was error to dismiss the complaint on the ground of the contributory negligence of the boy; that if the defendant prosecuted the work in such a manner as to render a violation of the rule necessary or probable, or if it suffered and approved its being habitually disregarded, the rule was rendered inoperative.</p>

<p>Appeal from a judgment, entered in Westell ester county upon an order sustaining a demurrer to the complaint.</p>

<p>Appeals from judgments, entered upon orders sustaining demurrers interposed to the complaint, and from orders denying motions for temporary injunctions.</p> <p>The actions were brought by the respective plaintiffs, who had purchased property in the city of Brooklyn upon sales for unpaid taxes and assessments, to restrain the registrar of arrears from canceling said certificates as required by chapter 405 of 1885, upon the ground that the said act violated the provisions of the Constitution in impairing the obligations of a contract.</p> <p>The following opinion was delivered at the Special Term by Cullen, J.:</p> <p>Under the provisions of the charter the purchaser at a tax sale is entitled to a lease of the premises sold after the expiration of two years, unless the sale has been redeemed by the owner. The purchaser obtains for his purchase-money the right to possession oi the land for the term for which it was sold. The statute, the validity of which is assailed, directs that after the expiration ot six months from the date of the act, as to sales made more than .eight years previous, no lease shall be given, and the sales shall be canceled by the registrar of arrears. The effect of this act is to compel the tax buyer to take out a iease, or bring an action to foreclose the sale within six months, or in default thereof to forfeit his purchase. No question is made that the time allowed by the act is not reasonable; but it is claimed that the right of the purchaser * cannot be subjected to any limit not prescribed at the time of the sale to him. I think this claim untenable. It is settled by authority that the lien of a tax may be barred by the statute of limitations (Fisher v. Mayor, eta., 67 N. Y., 73), and it seems conceded that a sale falls within the same rule. (Jmlcins v. Fahey, 73 N. Y., 364.) This court ■ has held, in Orr v. Femsen, that tax and assessment sales more than twenty years old, upon which no lease had been executed, did not constitute valid objections to a title offered a purchaser at a judicial sale. If the claims of the tax-buyers are subject to any statute of limitations, it is undoubtedly within the power of the legislature to shorten the time prescribed by the statute, so long as a reasonable time is left after such alteration in which the claim may be enforced. (Morse v. Goold, 11 N. Y., 288 ; Hawkins v. Barney, 5 Peters, 466 ; Cooley Const. Lim., 357.)</p> <p>As before stated, the right acquired by the tax-buyer was the right to possession of the land. This right was vested, and doubtless could not be invaded by legislation. But the legislature might act on the remedy and prescribe any formalities to be observed by the buyer ; and for a failure to comply with such formalities direct the forfeiture of the rights acquired, always provided that the substance of the contract was not affected. In this case the buyers had the right to a lease. That right is not taken away, but it is provided that the lease must be taken in six months, otherwise that the right be lost. In Butler v. Palmer (1 Hill, 324), mortgaged premises had been sold under foreclosure during the existence of a statute giving the mortgagor or his assignee the right to redeem at any time within one year from the sale. Subsequently the statute was repealed, the repeal to take effect on November first following, less than a year after the sale mentioned. It was held that the statute affected prior sales, and that the defendant’s right to redeem was lost after November 1, 1838. I think the principle in this ease is not to be distinguished from the one decided in the case cited. It follows that the act under consideration is valid, and that the motion for an injunction should be denied and the application for a mandamus granted. Ten dollars costs to prevailing party in each case.</p>

The action was brought to recover the amount alleged to be due on a promissory note for $300 made by Elizabeth Jayne, the defendant’s testatrix, to the order of one Clarissa Darling, the plaintiff’s testatrix, which was duly presented to the defendant and by him disputed and duly referred. pursuant to the statute. The defense is that the note is without consideration, and that a recovery is barred by the statute of limitations.

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

<p>Appeal from a judgment in favor of the plaintiffs, entered upon tlie trial of this action at the Dutchess County Special Term.</p>

<p>Libel— when the complaint must allege facts showing special damages.</p> <p>The complaint in this action alleged that the plaintiff was the proprietor of a concert hall at Coney Island, and that the defendant had published, of and concerning him, a libelous article, which was set forth in the complaint. The article purported to be a description of various saloons at Coney Island, and ^ their frequenters. There was no mention made of the plaintiff, save that there appeared in the article a cut or picture of the interior of a saloon, with the words beneath “ In Kennedy’s.” Taking the article in the strongest sense it would bear, with the aid of proper innuendoes, it was a charge that the saloons of which it speaks are the resorts of improper characters, and that the influence of the associations there had are bad. It does not charge that the plaintiff conducted his saloon improperly, or that he was responsible for the character of the guests.</p> <p>Held, that the article was a libel on the place and not on the plaintiff, and that in the absence of any averment of special damages, the facts stated did not constitute a cause of action.</p>

<p>Evidence — a husband may testify for, but not against, his wife in an action for divorce — Gode of Gtvil Procedure, sec. 8'19.</p> <p>In this action, brought by a husband to procure a divorce from his wife on account of her adultery, it appeared that the defendant was and had been for some time a lunatic, her guardian ad litem, interposing the usual general answer. Upon the trial the defendant’s counsel sought, after the plaintiff had testified to the marriage, to prove by him adultery on his part, and also the insanity of the defendant at the time of the commission of the offense alleged on her part. The court excluded the evidence, holding that the plaintiff was not competent to testify to any fact save the marriage.</p> <p>Held, error; that section 831 of the Code of Civil Procedure prevented the husband from testifying against the wife, but not from testifying in her favor.</p>

On April 26, 1886, application was - made before Mr. Justice Cullen for the appointment of commissioners to ascertain and appraise the compensation to be made to Mrs. Duane. Held: even if the legislature could direct town meetings to be held on general election day, it could not authorize the election of justices at such a time unless it changed the time of town meeting to that day.

Appeal by the plaintiff and one defendant from an interlocutory judgment, entered in this action brought to procure a partition of the real estate of Alfred Kemp, deceased.

The action was brought by the plaintiffs, as executors of Thomas O. Gourlay, deceased, to foreclose a mortgage given by the defendant Eliza Hamilton to the plaintiff’s testator.

<p>Right to become a member of a jyrmate corporation — the right so to do may be left to the incorporation to decide — 1885, chap. 333.</p> <p>Chapter 333 of 1885 incorporated certain persons therein named, “ and all other persons at any time hereafter duly associated, as provided by the by-laws, with or succeeding them, for the purpose of improving the breed of Holstein-Friesian cattle, ascertaining, preserving and disseminating, as provided by its by-laws, all useful information and facts as to their pedigrees and desirable qualities and the distinguishing characteristics of the best specimens, and preparing, publishing and supplying all necessary volumes of the Holstein-Friesian Herd Book; and generally for promoting and securing the best interests of the importers, breeders and owners of said cattle, and thereby the public generally.’’</p> <p>The relator, an importer of Holstein-Friesian cattle, resided in Brooklyn and had declared his intention to become a citizen of the United States. Upon an affidavit alleging that the respondent corporation kept a herd book in which Holstein-Friesian cattle were registered, and that it had refused to admit the relator to membership, or to register Ms cattle, he applied for a writ of mandamus to compel the respondent to admit the relator to membership and to inspect and register his cattle.</p> <p>Held, that his application was properly denied; that no public obligation was imposed upon the corporation by the act; that the right to share in the advantages of the corporation was limited to the persons therein named, and those who might become associated with them according to the by-laws of the company, the choice of associates being left to the incorporators.</p>

<p>Appeal from an order made by the .surrogate of Washington county, dismissing proceedings requiring the respondent Charles H. Bull to be examined as to certain assets of Roger D. Wing, deceased.</p>

<p>Interlocutory judgment on demurrer — the intention to review it must be stated in the notice of appeal from the final judgment — Code of Civil Procedure, secs. 1301,1316.</p> <p>The Special Term decided that the defendant in this action was entitled to judgment upon a demurrer interposed by him to the complaint, with costs, with liberty to the plaintiff to amend on payment of costs, and directed that au interlocutory judgment should be entered in accordance with such decision. The defendant taxed his costs and entered the interlocutory judgment, and thereafter, upon the failure of the plaintiff to amend within the time prescribed in the interlocutory judgment, he entered a final judgment.</p> <p>The plaintiff appealed to the General Term from the final judgment, without stating his intention to review the interlocutory judgment:</p> <p>Held, that by failing to state in his notice of appeal his intention to review the interlocutory judgment the appellant was, by sections 1301 and 1316 of the Code of Civil Procedure, precluded from reviewing the same.</p> <p>Patterson v. McCann (38 Hun, 531); Beese v. Bmyth (95 N. Y., 645) followed.</p> <p>It seems, that a motion to amend the notice of appeal by inserting therein an intention to bring up the interlocutory judgment for review could not fee granted.</p>

The action was brought to obtain an injunction perpetually restraining the defendants from constructing a dyke or pier on ' certain lands lying under the waters of the Hudson river.

The referee to whom the action, which was a suit in equity, was referred to hear and determine, reported in favor of the plaintiff, but by inadvertence, omitted to pass upon the question of costs.

Margaret Kranz, the administratrix of Julia A. Kranz, deceased, was the general guardian of said Julia, from the time she was three years of age until her death, a period of about fourteen years.

<p>Action for the specific perfoi'mance of a contract to convey lands — admissibility of evidence to shows that it would be inequitable and unjust to grant the relief sought.</p> <p>In this action, brought to compel the specific performance of a contract by which the defendants agreed to convey to the plaintiff certain lands in the city of Newport, by a deed containing a general warranty and the usual covenants for the conveying and assuring to him of the fee simple of the premises, free from all incumbrance, a judgment was entered directing compensation to he made to the plaintiff on account of an easement of maintaining a sewer through the lands, and of entering upon the said lands to repair and maintain the sewer, which existed in favor of the city, and that a conveyance of the land subject to this easement be made to him.</p> <p>Upon the trial of the action the defendants offered, hut were not allowed, to prove that the plaintiff knew that the sewer ran through the property prior to the execution of the contract, and that the contract itself was prepared by the plaintiff’s attorney, who had searched the title and knew of the existence of the sewer.</p> <p>Held, that it was error to refuse to admit the evidence. (Macomber, J., dissenting.)</p> <p>Biggs v. Pursell (74 N. Y., 370) distinguished.</p>

<p>Appeal by Francis Spicer and Emeline A. Scarfi from an order made at the New York Special Term directing the disposition of surplus moneys.</p>

<p>Assessors — what facts give them jurisdiction to impose an assessment upon which a personal tax is to he laid — when their determination cannot he attacked in a collateral proceeding.</p> <p>Upon this appeal from an order directing the commitment of the appellant to prison, there to remain until he should pay the amount of a personal tax imposed upon him, it appeared that the appellant sought to establish a want of jurisdiction on the part of the assessors by showing by affidavit, by way of answer to the proceedings instituted against him, that he was a stockholder in, and the vice-president of, a manufacturing corporation created and existing under the laws of the State of New Jersey, whose fabrics were deposited for sale in a wareroom in the city of New York, of which he had charge as the agent of the company.</p> <p>Held, that as the fact that the fabrics were in the possession and charge of the appellant at a place of business in the city of New York, while undisputed and unexplained, would justify the inference that he was their owner and engaged in carrying on the business, it gave the assessors jurisdiction over the appellant and that the appellant was not at liberty to attack their determination of that question by the proof offered in this proceeding.</p>

<p>Appeal from a judgment in favor of the defendants, entered on the trial of this action at the New York Special Term.</p>

<p>Admeaswrement of dower — power of the referee or commissioners to set-off one distinct parcel as the dower interest of the widow in a number of pieces of real estate — Code of Oiml Procedure, sec. 1609.</p> <p>Upon the hearing before a referee, appointed by an interlocutory judgment entered in this action, which was brought to admeasure the plaintiff’s dower in the real estate owned by her husband during the time of their marriage, it appeared that such real estate consisted of four separate parcels. One of these parcels had been conveyed by the testator in his lifetime, and two others had been conveyed by his devisees, all three being held at the time of the hearing by persons who had acquired title thereto or interests therein in good faith, for a valuable consideration and without notice of the plaintiff’s claim. The remaining property consisted of two adjacent pieces of land on the westerly side of Lake George, containing together about seventy-three acres, and a small island situate near these premises in the lake. On the westerly portion of this land, which is divided by a road running north and south, valuable buildings had been erected prior to the decease of the husband. The referee reported that it was impracticable to assign the plaintiff her dower in the property lastly described, and was of the opinion that it should be sold and her dower estimated and paid from the proceeds of such sale.</p> <p>Upon an appeal by the plaintiff from an order of the Special Term, refusing to confirm the report of the referee, and sending the case back to him to set-off to the plaintiff her dower in that property:</p> <p>Held, that the plaintiff was not entitled to have her dower assigned to her in each separate and distinct parcel, when to do so would injuriously affect the equitable rights and interests of other parties.</p> <p>That express authority to admeasure and lay off, as the dower of the plaintiff, “a distinct parcel, constituting the one-third part of the real property of which dower is to be admeasured,” when, in the opinion of the referee, it is practicable and for the best interests of all the parties concerned so to do, is conferred upon him by section 1609 of the Code of Civil Procedure.</p> <p>Schnebley v. Schnebley (26 111., 116) and Atkins v. Merrett (39 id., 62) distinguished.</p>

<p>Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to the complaint, upon the ground that the plaintiff had not legal capacity to sue, and upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and also from the order overruling the demurrer.</p>

<p>Will— construction of an alternative devise — when grandchildren are included m a gift to children— when they talce under the will and not through their parents — ■ a power of sale to executors must he executed hy a trustee and not hy the administrator-</p> <p>John Kurst died on January 28,1863, leaving a widow and two sons; a daughter» who was living at the time of the execution of his will, having died before her father. The widow died in 1883/prior to which time one of the sons died, leaving two sons. The testator directed by his will that after the decease of his wife, and after his youngest child should arrive at the age of twenty-one years (which event occurred before the death of the wife), all his property should he sold and the proceeds divided “ equally among the children I may then have, or those who may be legally entitled thereto.”</p> <p>Held, that the surrogate erred in deciding that the entire proceeds of the property should he given to the surviving son.</p> <p>That as the direction for the division of the proceeds among the children equally could not be complied with, as but one child was then living, the alternative direction became effective and required the proceeds to be divided among those who were legally entitled thereto, that is that one-half should be given to the surviving son, and the other half to the two children of the deceased son.</p> <p>That the same result would be reached by so enlarging the ordinary signification of the word “children” as to include the testator’s grandchildren, and that such an enlargement of that term might be made to carry into effect what appeared to have been the intention of the testator.</p> <p>Matter of Brown (29 Hun, 412) followed.</p> <p>That the widow, of the son who died in the lifetime of his mother, was not entitled to any part of the proceeds, as the grandchildren derived their right to share in the proceeds under the will of the testator, and not through their deceased father.</p> <p>The testator directed that at the time fixed in his will, the property should be sold by “ my executors hereinafter named, or such person or persons as may then legally represent my estate.” After the decease of both persons named as the executors in the will, David Patón was appointed a trustee by this court, as well as the Surrogate’s Court, to carry those directions into effect. One John B. Kurst was also appointed administrator of the estate by the surrogate. The estate was sold by the concurring action of these two persons.</p> <p>Held, that the surrogate should disallow a claim for commissions upon the proceeds of the sale, made by the administrator.</p>

Motion to set aside tbe report of commissioners appointed to assess and appraise the compensation to be made to Rufus Story as the owner of so much of the privilege, easements or other interest in Front street belonging to the said Story, as appurtenant to certain lots owned by him, as is or has been taken by the petitioner for its use as an elevated railway.

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

<p>Certiorari to review an assessment made to defray the expenses of improving and paving Fourth avenue, from Seventy-second to Ninety-ninth street, in the city of New York.</p>

<p>Negligence — duly of a master to protect an employee from injury while in the discharge of his duties.</p> <p>Upon the trial of this action, brought by the plaintiff to recover damages for the death of her intestate, which was alleged to have been occasioned by the negligence of the defendant, it appeared that the intestate, while working in the cellar of a building being erected by the defendant in the city of New York, in preparing mortar to be used by the bricklayers, was required to go to a tub of water in that portion of the cellar under the space left for the construction of the stairways. „ While near the tub the deceased was struck by something, but by what was not shown by any direct evidence, although the post mortem examination showed that his skull had been fractured by a blow upon the top of his head, and the facts proved were such as to warrant the jury in concluding that it was by some hard substance falling upon him from the top of the building. One witness testified that he heard a noise which he described as a kind of thud; that he looked up and saw the deceased stagger over towards the wall, and that he, the witness, caught the deceased just as he struck the tub. Evidence was also given tending to show that broken portions of brick did fall from the upper part of the building where the bricklayers were at work, and that there was no safe or secure covering to protect persons who were required to resort to the tub in preparing mortar, while on the part of the defense evidence was given tending to prove that a complete and secure covering was placed and maintained in this part of the building.</p> <p>Held, that the evidence was sufficient to sustain a verdict of the jury finding that the covering was defective, and that by reason of that fact the injury was receivéd.</p> <p>That there was evidence from which it could reasonably be concluded that the defendant had been careless and negligent, in not providing a proper covering for the protection of his men who were required to render services in this portion of the cellar of the building.</p> <p>* That the evidence was not such as necessarily to require a finding that the intestate was guilty of contributory negligence, or that he took this risk upon himself as a necessary incident of his employment.</p>

<p>Evidence — when a judgment in favor of the bondsmen, who have indemnified a sheriff, bars an action against him, —right to prove that a mortgage was fraudulent, under an answer denying the title of the mortgagee — right of a witness to consult a memorandum — irrelevant matters tending to prejudice the jury against the plaintiff should not be received.</p> <p>This action was brought to recover the value of goods, claimed to belong to the plaintiff by virtue of one mortgage executed to her by her husband, and under another mortgage executed by the husband to a third person and assigned by Buoh third person to her, against the sheriff who had seized the property under an execution issued upon a judgment recovered against the husband. Upon the trial it appeared that in a former action, brought by the present plaintiff to recover a portion of the same property against the persons who had given a bond to indemnify the sheriff for the seizure and sale of the property under the said execution, a verdict had been rendered in favor of the defendants.</p> <p>Held, that this judgment was a bar to the present action to the extent of the property sought to be recovered in such prior action, but not as to the residue of the property seized and sold after the seizure complained of therein.</p> <p>That the right of the sheriff to justify the seizure of the property, upon the ground that the mortgages were made with intent to hinder and delay the creditors of the mortgagor, was not defeated by his failure to allege their fraudulent character in the answer; that as the answer alleged the property to be that of the judgment debtor, the mortgagor, any evidence legally pertinent to prove that fact was admissible under it.</p> <p>McKinley v. Howe (97 N. Y., 98) distinguished.</p> <p>The court refused to allow the mortgagor to look at a memorandum to refresh his memory, so that he might be able to state the articles which had been left in his store by one of the plaintiff’s assignors, upon the ground that the memorandum had not been identified.</p> <p>Held, error; that whatever the memorandum might have been, if it would refresh the recollection of the witness so that he could state the articles which were left, the plaintiff had a right to have that memorandum consulted by him, and to the testimony he might be able to give after referring to it.</p> <p>That it was error to allow the defendants to prove what the mortgagor had testified to in supplementary proceedings instituted against him, to which proceedings the present plaintiff was in no sense a party.</p> <p>That the court also erred in allowing answers to be given, concerning other property and premises previously occupied by the mortgagor, tending to create a prejudice in the minds of the jury against him, and to induce them in that manner to reject, the plaintiff’s claims for indemnity for the property seized and sold by the sheriff.</p>

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

<p>Statute of limitations — when the right of a former member of a dissolved partnership, to sue his copcm'tnm' for a settlement, arises — Oode of Givil Procedure, sec. 388.</p> <p>This action was brought in August, 1884, for the settlement of the affairs of a partnership formed by the plaintiff and defendant in January, 1870, and dissolved in October, 1872. A defense set up by the defendant that the action was barred by the statute of limitations, because not brought within ten years after the right to commence the action had accrued, as required by section 388 of the Oode of Civil Procedure, was sustained by the referee, who held that the light to bring the action accrued when the dissolution of the partnership took place.</p> <p>Held, that the time fixed by this section did not commence to run until a right to bring and maintain an action for the redress sought for existed.</p> <p>That it did not follow from the fact of the dissolution of a partnership that either partner could, at the time when that took place, immediately institute and maintain an action for the settlement of its affairs.</p> <p>That where the business of the partnership requires for its completion the continuance and completion of certain transactions, and no default or misconduct can be alleged on the part of either of the parties, as a ground of action, in such case the law will permit a reasonable time to be taken for the winding up of the partnership affairs before a right of action will accrue.</p> <p>That as it appeared in the present case that the firm was, at the time of its dissolution, indebted in the sum of about $200,000, and owned property and demands, some of which had not yet been collected, and that at the time of the dissolution of the firm it was agreed that its affairs should be liquidated by the plaintiff, and as there was nothing to show unreasonable delay in liquidating its affairs, the case contained no facts which would enable the referee to determine that such a lapse of time had taken place as would entitle the parties, or either of them, to disclaim the binding effect of this agreement, and that he erred in sustaining the defense.</p>

Hearing upon the return to a -writ of certiorari issued to review the proceedings, finding and sentence of a general court-martial of the National Guard of the State of New York, whereby the relator, the second lieutenant of company B of the ninth regiment of the national guard, was found guilty of conduct unbecoming an officer and a, gentleman, and sentenced to be censured and to pay a fine of fifty dollars.

<p>Appeal from a judgment in favor of tbe defendants and from an order of tbe Special Term sustaining tbe demurrer of tbe defendants, interposed upon tbe ground that the complaint does, not state facts sufficient to constitute a cause of action.</p>

The action was brought to recover the amount of an assessment made upon certain mortgaged premises paid by the plaintiff holding the premises under a mortgage foreclosure. The claim was based upon section 175 of chapter 86 of the Laws of 1813, to the effect that if any assessment be paid by any person, when by agreement or law the same ought to have been, borne and paid by some other person, it shall be lawful for the person paying to sue for and recover the money so paid.

Appeal by both the relators and the respondent from an order of the Special.Term, granting in part and denying in part a motion by the relators for a peremptory mandamus. ■ Certain real estate of the relators was assessed for taxes for the years 1877, 1878 and 1879.

<p>Appeal from an order made at a Special Term, continuing an injunction during tlie pendency of this action.</p>

<p>Subscriptions to the stock of a corporation — when future installments are due at the time of the subscription within the purview of the statute of limitations.</p> <p>Between January 20 and May 15, 1873, the defendant signed a paper by which he agreed to subscribe for 600 shares of the Blair Iron and Steel Company, to be paid for according to the terms set forth in the same paper, which stated that the whole of the capital stock had been issued and paid for by the transfer of patents; that 9,000 shares of the stock were to be used as a working capital for the company, subject to the order of the board of trustees, except $50,000 of the proceeds which were to be first paid to the signors, who were persons interested in the enterprise; that 6,000 shares were to be sold “ for the purpose of raising the present working capital and paying the said fifty thousand dollars, the minimum price to be fifty dollars per share,” to be paid as follows: “ One-third part thereof as soon as the whole six thousand shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for the same for the purposes of the business, the certificates to be delivered when the whole shall be paid.” The defendant having paid thirty-three and one-third per cent of the amount due for the stock subscribed for by him, this action was commenced on October 14, 1879, to recover the remainder.</p> <p>Held, that all the installments became due and payable as soon as the subscription took effect, and that the action was barred by the statute of limitations because not brought within six years from that time.</p> <p>Howland v. Edmonds (24 N. Y., 307); Tuclwrmam, v. Brown (33 id., 297); Lake Ontario, etc., Bailroad Company v.Mason (16 id., 451); Goshen Turnpike Company v. Hurtin (9 Johns., 217) followed.</p>

Appeal by tbe defendant from a judgment, entered at a Special Term adjudging tbe foreclosure of a mortgage and directing a sale of tbe mortgaged premises.

<p>Submission of a controversy upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.</p>

<p>Canceling of a, license 5y the excise commissioners — when an appearance waives a defective service of notice — two commissioners may act if the third has notice of the meeting — the proceedings are summary in character — what is required to justify a cancellation of the license.</p> <p>Upon tlie hearing of a certiorari, issued to review the decision of the commissioners of excise in vacating and annulling a license issued to the relator, an objection was taken that the summons was not served upon the relator himself, but upon a person who, in his absence, was found in the possession and control of his establishment.</p> <p>Held, that the objection was deprived of all force by the fact that an attorney and counselor appeared for the relator at the time and place designated for the return, and without objecting to the mode of service moved for and obtained an adjournment of the hearing.</p> <p>That an objection that the order and decision were made by two of the three commissioners was also without force, as it appeared that the third had notice of the time and place to which the hearing was adjourned, he having participated in the making of the order for the adjournment.</p> <p>The statute does not require the same strictness, by way of proof, in a proceeding taken to annul a license for the sale of intoxicating liquors, as is required in an action or special proceeding in court.</p> <p>Section 4 of chapter 549 of 1873 does not prescribe the legal mode through which the commissioners may become satisfied that the person proceeded against has failed to observe the statutory provisions upon which the continuance of his license may depend, but it has provided, in very general language, that when the commissioners shall become satisfied of the necessary fact, after summoning before them the person proceeded against, they shall revoke, cancel and annul his license.</p> <p>The proceeding is to be summary and to depend upon such reliable information as the commissioners may be able to obtain, to a reasonable certainty, establishing the existence of the necessary fact.</p>

Appeal by two executors from an order made by the surrogate of the county of New York, directing the deposit of all the United States bonds and interest-bearing notes, together with their coupons, belonging to the estate of Nathaniel Gilman, which were in the possession or under the control of the executors, with the Union Trust Company, there to remain until the further order of the Surrogate’s Court of the county of New York; and the hearing of a motion made to dismiss…

50, which was the amount of the judgments previously obtained against him by the respondent, with ten dollars costs of motion.

t the Cayuga Circuit and from an order denying a motion for a new trial made on a case at the Monroe Special Term and entered in Cayuga county.

<p>Pleading — smm'dl causes of action for separate entries upon real estate may he joined.</p> <p>The complaint in this action set forth two causes of action, one for a wrongful entry upon the plaintiff's lands under water, about April or May, 1881, and the wrongfully taking and carrying away of fish therefrom, the other for a like entry on plaintiff’s land in the year Í882, and catching and killing muskrats thereon.</p> <p>Held, that as both causes of action were for injuries to real estate they might be properly united in one complaint.</p> <p>That the allegations of injuries to personal property were not statements of separate causes of action, hut mere averments in aggravation of the wrongful entry.</p>

<p>'Practice — power of fhe court to allow amendments to the complaint at trial — when the justice of the terms imposed by it are renewable on appeal.</p> <p>This action was commenced in a Justice’s Court upon a complaint which alleged that “ oneB. F. Pomeroy, on November 19, 1875, made his promissory note for one hundred dollars, payable to R. J.Lovejoy, or bearer, one year from date, and indorsed on the hack by John F. Lovejoy, the defendant.” The defendant, by his answer, denied the complaint and alleged that he was not notified of the presentation and non-payment of the note. A judgment in the Justices' Court, in favor of the plaintiff, was affirmed by the County Court but reversed by the General Term. At the commencement of the second trial the plaintiff was permitted, against the objection and exception of the defendant, to amend his complaint by alleging a cause of action for “one hundred dollars, money lent in August, 1876; ” and also alleging that the said promissory note set out in the original complaint was left with the plaintiff by the defendant as security for the loan. The court found the facts, as alleged in the amended complaint, and ordered judgment in favor of the plaintiff for $100, with interest from August 1,1876.</p> <p>Meld, that the court had power to allow this amendment to he made upon the trial on such terms as it should deem just.</p> <p>That, as in this case, no terms whatever were imposed as a condition to the allowance of the amendment, the costs of the entire litigation, including those of the first appeal to this court, were thrown upon the defendant, which was, under the circumstances of the case, unjust to him.</p> <p>That the action of the County Court in this particular was reviewable on this appeal by the General Term.</p> <p>Handy. Burrows (15 Hun, 481) followed; Beillyy. President, etc. (5 Eastern R., 706) distinguished.</p> <p>That the judgment should be reversed, with costs of the appeal, unless the plaintiff should stipulate that the judgment be modified by striking therefrom all costs and disbursements allowed to the plaintiff from the time of the service of defendant’s answer to the original complaint to the time of the amendment, and by allowing to the defendant his costs and disbursements accruing during that period, such costs to be set off against the plaintiff’s damages and costs, and judgment to be entered in favor of the party entitled to the excess.</p>

<p>Appeal from a judgment of the Y ates County Court, entered on the verdict of a jury, and also from an order denying a motion for a new trial on the minutes.</p>

<p>Warrant for the collection of school taxes — effect of a renewal thereof by a trustee — he cannot limit the time within which it must be executed.</p> <p>In this action, brought to recover damages for the taking and selling of the plaintiff’s wagon, the defendant claimed to have taken the property, as a collector of school taxes, under a warrant 'issued to him on the 30th day of October, 1885. Upon the trial it appeared that a few days after the warrant had expired it was renewed by an indorsement made thereon by the trustee in the following words: “ Renewed for ten days. ” On November third the trustee wrote upon it the additional words: “ Renewed for twenty days from the time it run out.” The levy was made on November fifth and the wagon was sold on November twelfth. The court below held that as the sale was made after the ten days had expired it was not authorized by the first renewal, and that the second renewal was void for want of the written approval of the supervisor indorsed thereon as required by the statutes.</p> <p>Meld, that he erred in so doing.</p> <p>That the words of limitation added to the first renewal being unauthorized by the statute were to be treated as surplusage, and that the renewal was to be regarded as the issuing of a new warrant of the same force and effect, in all respects, as the original warrant, and that the collector was, therefore, protected by it in making the levy and sale.</p> <p>The cases determining the effect of a renewal of a collector’s warrant by a trustee, collated and considered by Smith, P. J.</p>

The defendants appeared by an attorney and demurred to the complaint upon the grounds : First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That the complaint does not state facts showing that the court has jurisdiction of the persons of the defendants. Third. That the complaint does not state facts showing that the court has jurisdiction of the subject-matter of this action. Fowrth.

Motion by the plaintiff for a new trial on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in the first instance.

<p>Practice — an order requiring a party to produce books and papers for inspection must be based upon a petition— a peremptory order cannot be granted in the first instance — Code of Givil Procedure, secs. 808-809.</p> <p>Under the present Code of Civil Procedure a party cannot be compelled to produce bis books and papers, for the examination and inspection of his adversary before trial, except in the mode pointed out in article 4 of chapter 8 of the Code. The proceeding must be by a verified petition praying for the discovery or inspection sought, and the only order that can be made in the first instance is one directing the party against whom the discovery or inspection is asked to allow it, or in default thereof to show cause why it should not be done.</p> <p>A peremptory order compelling the production of books or papers for examination and inspection cannot be granted ex parte. The statute intended to secure to the party proceeded against an opportunity to show cause against the granting of the application, and an order that deprives him of that right cannot be upheld.</p>

<p>Pleading — hypothetical pleadings a/re still had — when the remedy is hy demurrer and not hy motion to strike out.</p> <p>Upon an appeal from an order denying a motion to strike out tlie second paragraph in the defendant’s answer, or to direct that it be made more definite or certain, it appeared that the first paragraph of the answer was a denial, while the second paragraph alleged that if the defendant spoke any slanderous words of and concerning the plaintiff, of the nature of those charged in the complaint, they were confidential and privileged and were not spoken in malice.</p> <p>Held, that as the second paragraph was obviously intended to be a statement of a separate defense, and as it was plainly hypothetical, it was bad.</p> <p>That as there was no authority given by the Code to strike out an entire count of an answer on the ground of insufficiency, and as it would be useless to compel the defendant to make the count more definite and certain while it remained hypothetical and, therefore, bad, the plaintiff’s motion was properly denied.</p> <p>It seems, that the plaintiff’s remedy was to interpose a demurrer to this count upon the ground of its insufficiency in law.</p>

<p>Appeal from an order made by the county judge of Erie county, ' denying a motion in supplementary proceedings to punish defendant for an alleged contempt.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a decision made at the Cattaraugus Special Term, and from an order denying a motion to modify the judgment.</p>

The defendant Jacob Y. Hall was a life tenant of the premises, and the plaintiff and the other defendant had the estate in remainder in the land. The premises were sold. The life tenant was paid from the proceeds the estimated value of his estate, and the residue was paid into court for the other parties, who were infants. This sale was made December 10, 1881.

Appeal by the defendant from a judgment of tbe Erie Oyer and Terminer, convicting him of the crime of grand larceny in the first degree and sentencing him to five years’ imprisonment. The indictment contains three counts and charges: 1.