Volume 49 — Howard's Practice Reports

, denying a motion for a writ of mandamus compelling the comptroller to pay over to them the money raised for this department.

The action was to enjoin the use of a trade mark. The complaint alleged that the plaintiff for more than three years had been engaged in putting up packages of,about one pound each, and importing an article known as “ Julienne,” composed of various vegetables for making julienne soup, upon which package he had placed a label or trade mark devised by him, a copy of which is annexed to the complaint.

Motion to set aside taxation of costs in favor of the defendants, by which they were permitted to tax two bills of costs. The recovery was thirty dollars, and for tort, and plaintiff not entitled to costs. There does not appear anything to show that any direction was given by the trial court as to costs.

<p>Action against a corporation, how brought.</p> <p>An action, to recover the property and assets, which are claimed to have been illegally or fraudulently disposed of or converted, by the trustees or directors of a corporation, should be brought in the name of the corporation itself.</p> <p>. But should the corporation, upon application of stockholders, decline to bring the action, the stockholders may sue, making the corporation a defendant.</p> <p>The omission of the corporation to elect officers, or to transact business, is not a dissolution of the corporation, and affords no sufficient reason for not making it a party defendant.</p> <p>When the demand is personal, jurisdiction over the parties will confer the right to take cognizance of the cause of action: so held when the trustees of the corporation were made defendant.</p> <p>When a corporation is made a party defendant, the directors thereof are not necessary or proper parties, unless a personal claim be made of them.</p>

<p> Injunction, when not a/uthorized to restrain a railway company from proceeding with the const/niction of their road on the ground of a forfeiture of their charter. </p> <p>It is not every case of a clear violation of the plaintiff’s rights that entitles him to an injunction to restrain such violation. He must first clearly show that the act itself is illegal.</p> <p>Where the plaintiffs in their action proceeded upon the theory that the defendants had not completed their road within the time prescribed by the acts under which they were originally organized, and therefore had forfeited all their chartered rights, and that further proceedings by them in the erection, &c., of a part of said road, in the absence of lawful authority, would be a nuisance specifically detrimental to the plaintiffs as property owners, and which entitled them to an injunction to restrain the defendants from further proceeding:</p> <p>Held, that as the defendants are professedly acting under a legislative grant, the court cannot assume that they have forfeited their rights under that ' grant, it not appearing that any action has been instituted by the state for a forfeiture.</p> <p>The allegations of the complaint charging the defendants with extorting illegal or excessive fares from their passengers, constitute no ground for granting an injunction.</p> <p>If the defendants have violated their charter, the attorney-general can institute proceedings to compel compliance with or a forfeiture of their charter. And an individual who has.been compelled to payan illegal or excessive fare can have his wrong redressed by an appropriate action.</p>

This action was brought to foreclose a mechanics’ lien upon a house and lot in the city of Syracuse. The plaintiff furnished materials to John O’Brien who used them in the erection of a house belonging to' the defendant O’Donnell, under a contract with him. The cause was tried in February, 1875, at the Onondaga circuit, before Hon. George A. Hardin and a jury.

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

<p> Title acquired by the city of New York, under a certain act, when it becomes a fee </p> <p>Where the Mayor, &c., of the city of Mew York acquire title to land, in the manner and by the proceedings prescribed in the act to vest certain lands, &c., in the Mayor, &c., of the city of Mew York, passed April 22 1834, the corporation acquires thereby an estate in fee simple absolute. Where such land is sold by the corporation at public auction by the commissioners of the sinking fund, it is no valid objection by the purchaser to taking the title, that the corporation could only acquire their title under said act for public purposes, where the premises had not been in use for a number of years; nor was there any evidence that they were reserved for any public use.</p> <p>■ The purchaser will, in such case, acquire a title which will vest in him an absolute estate in fee simple, and there is no source from which he will receive trouble. He will be required to pay the interest and taxes from the time of the sale. ,</p>

Motion on the part of the defendants for a bill of particulars of the plaintiffs’ claim, under a complaint alleging fraud in obtaining moneys from the treasury of the plaintiffs, and for a copy of the bills and vouchers on which the money was paid.

<p>Board of Apportionment, N. Y., relative to fixing salaries.</p> <p>Under section 8 of chapter 588 of the Laws of 1871, the board of apportionment is empowered “ to regulate all salaries of officers and employes ” of the city and county of New York, not exceeding in amount the apportionment made for such purpose for which the city and county could be held liable.</p> <p>In the absence of proof to the contrary, it is not to be presumed that in regulating the plaintiff’s salary, by their resolution of the "15th of August, 1871, the board exceeded the amount already appropriated for the payment of his salary made in May, 1871. If so, it should have been established by. the defendants.</p>

<p>Appeal from order of special term denying the application of the purchaser at the .sale on judgment of foreclosure to be relieved from his purchase.</p>

<p>Appeal from an order of the special term, allowing an amendment of the judgment roll.</p>

<p>Appeal from a judgment affirming a special term judgment rendered in a mortgage foreclosure case.</p>

<p> Appearance, when confers jurisdiction—parties in foreclosure case. </p> <p>Appearance by attorney is equivalent to personal service in the county in conferring jurisdiction upon this court.</p> <p>Where the mortgagor of real estate has"parted with the equity of redemption in the mortgaged premises, he is not a proper party to a motion by the purchaser at the foreclosure sale, to set aside the sale for defect of ' title.</p> <p>Neither is’ the mortgagor’s wife, who never executed the mortgage—the sale being made expressly subject to her inchoate right of dower — a proper party to such motion.</p>

Also an appeal by the plaintiff from an order denying ■leave to amend the complaint in this action, by inserting allegations as to the invalidity of said release, and claiming that the defendant be enjoined from giving said release in evidence on the trial of this action, and that said release be given up to be canceled.

<p>Trial Try referee—Me authority to decide on conflicting and, pi'eponderating ' evidence.</p> <p>Where there is a conflict of evidence on the trial before a referee, between the plaintiff and defendant as to the making of a certain agreement between them, the referee’s decision thereon will not be disturbed on appeal.</p> <p>And where there is some conflict, of evidence on another point and the preponderance and weight of evidence is in favor of the rulings and decision of the referee thereon, this court will sustain such findings.</p> <p>It is the duty of the appellant in making up his case, to show plainly that an erroneous ruling was made adversely to him, and not leave that fact to appear by inference or conjecture.</p>

<p>Demurrer to complaint.</p>

<p>Writ of error to the court of general sessions for the city and county of Mew York.</p>

This was an application to a judge of this court, under sections 33 and 34 of 2 Revised Statutes, 398, to perpetuate the testimony of a witness. The action is pending in this court.

<p> The, exercise of the right of eminent domain. </p> <p>A body which has a legal corporate existence is capable of performing an act of condemnation of private property for public use.</p> <p>It is in the discretion of the legislature to determine the mode of exercising the right of eminent domain, subject to the organic law.</p> <p>The construction of a railroad is a public necessity in contemplation of law, and the taking of private property for its construction is legal.</p>

<p>1Power of a railroad company to contract as a common carrier ■ to carry freight through aiwther state, ard beyond its own terminus.</p> <p>A railroad company has the power and the right to contract, as a common carrier, to transport freight through another state over another railroad, and beyond its own terminus.</p> <p>Where the owners of the property transported knew that the car in which it was put was defective and unsuitable, they did not thereby assume the risk of such defects, nor was the company relieved from responsibility for the same.</p> <p>And it seems, that if the company was negligent in furnishing cars it would not have been relieved from responsibility, although there was an agreement that it should not be liable therefor.</p>

<p> The law of easements. </p> <p>An adjoining owner of lots has no right to close up his neighbor’s rear windows of his dwelling-house, although they open upon the owner’s rear yard, where the neighbor’s house covers his entire lot.</p>

The defendant borrowed about the sum .of $100 of the plaintiff. The money not having been paid this action was commenced. After the papers were served the defendant, without informing him that suit was commenced, paid to the book-keeper of the plaintiff the amount due and took his receipt therefor. The plaintiff, upon being apprised of the fact, notified the defendant that he would not receive the money unless the costs of the suit were paid.

<p>Demurrer to complaint.</p>

Motion to have the judgment herein canceled and satisfied of record, on the ground that it has ■ been fully paid, and for general relief. The judgment was entered in this action on the 27th December^ 1864, for $92.45, with $14.95 costs. The moving papers on the part of the defendant state that, about the time of the entry of judgment, the defendant paid to the plaintiff the full amount of the recovery.

<p> ActitmAy judgment creditor to set aside conveyance made try judgment debtor, when its decision no bar to an action by another judgment creditor, against same defendant. </p> <p>Where a judgment creditor brings an action in his own behalf and all others similarly situated, &c., to set aside a conveyance alleged to have been fraudulently made by the judgment debtor, and after a trial on the merits the plaintiff’s complaint is dismissed, it is no bar to an action by a subsequent judgment creditor for similar relief; although he was a witness for the plaintiff in the former action, but was not in privity with or a party to that action.</p>

<p>Application for removal of cause to United States district court and for stay of proceedings.</p>

A suit has been instituted by Henry Clews and others against the Rockford, Rock Island and St. Louis railroad, to recover $45,000 damages for an alleged breach of contract to deliver $50,000 in amount of town bonds. An attachment was issued, and the only thing claimed to have been attached is a suit pending in this state and another pending in Pennsylvania, against Henry H. Boody, to recover nearly $300,000.

This suit was brought to recover $4,942.65 on a bond given by defendant in a suit pending in the court of common pleas of this city and county on an adjournment on the trial. The defendant demurred that the complaint did not state facts sufficient to constitute a cause of action. The case was argued by Mr. Hildreth for the defendant and by D. McMahon for the plaintiff. Judge Donohue delivered the following opinion, overruling the demurrer and rendering judgment for plaintiff.

Tub action is upon a judgment recovered in the court of queen’s bench, London, on the 21st of March, 1870, for 972¿. 14s. sterling. The defense is a discharge in bankruptcy under the bankruptcy laws of Great Britain (1861), granted April 8, 1870. The application for the discharge was upon the petition of the bankrupt, with a schedule of his indebtedness.

This was an action on a claim for $100,000. The plaintiff and defendant were residents of the state of Hew Jersey; nearly all of the witnesses resided there. The plaintiff claimed to recover of the defendant $100,000 damages for alleged breach of an alleged contract. The defendant claimed there was not the slightest foundation for the action, and wanted the trial to come off.

<p> Distribution of assets to creditors who are savings banks. </p> <p>Where savings banks make contracts with a banking institution for deposits, and the payment of interest on a portion of their cash capital stock, in pursuance of the laws of New York (1853 and 1858), and the banking institution becomes insolvent and goes into bankruptcy under the charge of an assignee in bankruptcy; upon a distribution of its assets, the claims to priorities or preferences by the savings banks under the state laws cannot be allowed as they are not liens or securities or rights or interests in property. If so they are not saved by the general scope of the bankruptcy act, and are not recognized by the twenty-eighth section.</p>

<p>Change of attorney&</p> <p>An attorney cannot be changed without leave of the court or an order of a judge of the court.</p> <p>He may be changed upon his own consent, but the consent must be filed on an order entered substituting in his place the new attorney, and notice of the order must be served upon the opposite party.</p>

<p> Alimony and counsel fees not allowed in an action fin' limited divorce. </p> <p>Alimony and counsel fee will not be allowed to the plaintiff in an action for a limited divorce and separation on the ground of alleged desertion and abandonment, by the defendant, where the plaintiff fails to establish a marriage contract with the defendant.</p> <p>A cohabitation existing between the parties during some four years, which from the evidence was considered to be illicit in its character and meretricious from the beginning, was no foundation upon which to rest her application.</p>

<p> Proceedings against bankrupt eopm'tners. </p> <p>General order number 36 of the supreme court of the United States is entirely prospective in its operation, and refers only to composition proceedings initiated after its adoption and promulgation.</p> <p>The debtors may be examined at the first meeting, at the instance of any creditor, before a vote can be taken on the resolutions.</p> <p>The examination of the debtor is to be reduced to writing, sworn to and subscribed by him, and the procedure and meeting regulated by the sound discretion of the presiding officer.</p> <p>The examination of the debtor in answer to any inquiry, as mentioned in the seventeenth section of the act of 1874, ought to be conducted as the examination of a witness in court, with the privilege of answering inquiries by his own counsel and correcting, by explanation, his examination by the creditor.</p> <p>The petition for the first meeting should set forth the nature and terms of the proposed composition, and the belief that such proposed composition will be accepted by two-thirds in number and one-half in value of all the creditors of the debtor or bankrupt in satisfaction of the debts due from such debtor or bankrupt.</p> <p>A second meeting will continue to be called, and be presided over by the register designated to hold the first meeting, upon notice, for the inquiry by the register whether the resolutions for composition have been passed and confirmed in the manner required by law.</p>

<p>Motion for continuance of injunction.</p>

<p> Tender? by a debio?' to his crédito?' mmt be ?nade if the crédito?' is within the state. </p> <p>A debtor is bound to seek his creditor in order to make a tender, if he be within the state.</p> <p>In England the debtor is not bound to follow his creditor beyond the four seas to make a tender.</p> <p>The plaintiff’s mortgagee having removed from the state and gone to reside in Europe, after the making and delivery of the bond and mortgage, and not having left any person within this state to receive the interest and installments as they became due, the defendant was relieved from the obligation to make a tender.</p>

Motion to vacate the order of arrest in each of these actions. The actions were brought to recover damages against the defendant for obstructing a water-course, to plaintiffs’ injury, and for an injunction. They were commenced and were put at issue by the service of an answer in each case in 1870.

<p> Jurisdiction of this court in case of admiralty upon a libel against a canal boat—lien of mortgagee thereon—liability between master and servant. </p> <p>This court has jurisdiction in case of a libel filed against a canal boat to recover damages for a failure to deliver merchandise upon a contract of affreightment to transport the freight from Buffalo to New York.</p> <p>This a/ppears to be adverse to the vims, eapo'essed by justices Ingebsoll and Nelson, in the case of the Ann Arbor (4 Blatch. C. C. R., 205), who hold that a canal boat is not the subject of a libel, not being a ship or vessel and having no power of locomotion as respects navigation upon public waters, any more than a raft, an an'k or mud scow. — [Rep.</p> <p>A mortgagee who allows the owner of a canal boat to run and use it as a general freighting boat to earn compensation for such owner, subjects her to the ordinary obligations which such boats incur through the contracts of the master. The master is pro hoc vice the agent of the mortgagee ; and as to any lien possessed by the latter by virtue of the mortgage, it is subordinate to the claim of the libelants.</p> <p>Where the bill of lading is absolute in its terms, that all the damages caused by the boat or carrier, or deficiency in the cargo from quantity, as specified, is to be paid by the carrier, he must respond, with the boat, for any loss of cargo.</p> <p>But where it is suggested that the loss was not caused by the boat or the carrier, because it was not within the scope of the master’s employment to steal or be privy to the stealing of a portion of the freight (claimed in the libel as being feloniously abstracted from the, boat with the knowledge of the master), it must be held that by the terms of the bill of lading the master is civilly liable for the tortious act .of his servants; whether the act be one of omission or commission.</p>

<p>Appeal from judgment of the supreme court rendered upon the decision of Mr. justice Hardin, in Onondaga county at 'the January circuit, 1874, the cause having been tried before him without a jury. The facts are contained in a stipulation and may be briefly stated as follows: The defendant is a corporation founded January 10, 1860, under which the subscribers associated themselves together “ for the general purpose of improvement and welfare ” of themselves “ and others ” by signing their names to the constitution and by-laws of the association, “ and for the particular object of mutual relief of the members of the association in time of sickness and distress.” The plaintiff’s husband and the husband of her assignors each signed the constitution and by-laws and became members of the society. One of the articles of the association contained this provision, viz.:</p> <p>“ Upon the death of one who has been a member of the association for six months ‘last prior to his death his widow shall be entitled to receive the sum of four dollars monthly during widowhood.”</p> <p>The plaintiff’s husband and the husband of her assignors died after a membership of six months immediately prior to their decease. Subsequently to their decease the article above set forth was revised under authority of a provision which read as follows, viz.:</p> <p>“ A revision or alteration of the articles of the association can be had at a general meeting of the members thereof by a majority of the votes of the members present.”</p> <p>The revised article, adopted in conformity with this provision, reads as follows, viz.: “ Upon the death of a member each person who may be a member of the society shall pay to the widow of the deceased member the sum of one dollar.”</p> <p>The arrears due to the plaintiff under the original article were allowed by the decision of the court against the defendant’s objection and exception.</p>

<p> Construction of a-will: </p> <p>Personal property, although specifically bequeathed by the will, must be applied to the payment of the debts of the estate, before land devised can be made chargeable therefor.</p> <p>Consequently, where the executor first applies the rents of the real estate to the payment of the debts in such case, it is a misappropriation of the funds, for which he will be held personally liable.</p> <p>The objection that an executor can only be called to account by the surrogate is not well taken, as this court has also the right to call an executor to account.</p>

Motion made by the defendants to set aside this action, for the reason that it was brought by the attorney without authority from the plaintiff as receiver, and that it was irregular for the receiver to employ the attorney of the judgment creditor to bring the action, and for him to bring the same. The motion was made before appearance by the defendants.

This action was commenced in the marine court. The plaintiff alleged in his complaint, and proved at the trial, that on or about the 24th day of May, 1873, he was indebted to the defendants in the sum of $377.25 ; that he was unable to pay his debts in full, and that he entered into an agreement in writing with his creditors, whereby they agreed to accept and receive, in full satisfaction of their respective claims against the said plaintiff, the sum of forty cents on every…

<p> Taxation of costs. </p> <p>More than one term fee per annum may tie allowed in the court of appeals, on the adjustment of costs in causes decided by that court.- {This seems to be adverse to the superior court decision of Palmier agt. De Witt, 42 How., 467.)</p>

Eleventh avenue, of the width of 100 feet, in the city of New York, was laid out as far as One Hundred and Fifty-fifth street, by the commissioners appointed under chapter 115, Laws 1807, and was subsequently opened by legal proceedings to that point.

Demurrer to answer. • The complaint alleges that the plaintiff was duly appointed a deputy clerk of the court of common pleas in and for the city and county of Sew York, and his salary fixed at the sum of $5,000 per annum. That he entered upon and has continued to perform the duties of said office to the present time, and was paid his aforesaid salary to J une 1, 1871, and also from and since January 1, 1872.

Affidavit was made by the plaintiff herein that the defendant was indebted to him in the sum of $388, and this action is brought to recover same. An attachment was issued against the defendant on the ground that he intended to defraud his creditors. Several affidavits were read to the effect that defendant’s books of accounts had been secreted, and were inaccessible to his creditors.

The Mew York Mutual Gas-light Company contracted with the department of public parks to light the lamps in the parks and squares for $36.50 per lamp. This contract was made on the 31st of April, 1873. A short time ago the company presented a bill for $2,865.12, amount due on- the contract from January, 1874, which the comptroller refused to pay.

<p> Oonstruction of the provisions of a will. </p> <p>Where a will grants and devises the estate to trustees, for the testator’s grandchildren, namely, “the children of my son, A. M. L., and the survivors of them, share and share alike, and the children of my daughter, E. J. S., deceased, and the survivors of them, share and share alike, and in the mean time the income of my said estate shall 'he applied to the necessary support, maintenance and education of each of said children under the care of said executors : ”</p> <p>Held, that as an original question, the trust in the will would he void as contravening the statute against perpetuity ; but under the decision of the court of appeals, in Everett agt. Everett (29 N. Y., 39), the trust must be held valid.</p> <p>The intention of the testator, as evidenced by the will, was to divide Ms ' estate per stirpes and not per capita.</p>

<p>Application for extra allowance, under section 309 of Code, in foreclosure suits.</p>

<p>Motion on the part of the defendant to dissolve injunction.</p>

<p>Supplementary proceedings — amount necessary to support defendant’s family.</p> <p>Where it appears that the defendant has no property, and that the amount he earns and receives for his personal services is not more than sufficient to support himself and the family supported by him, supplemental proceedings against him for an application of these earnings to plaintiff’s judgment against him will be discharged.</p>

<p>■ Certain defendants moved the court at special term for leave to come in and defend in this cause, in which judgment had been taken against them for want of an answer. The defendants were stockholders in the Adams Express Company, and the plaintiffs trustees of certain property of that company, the trust as to which, the suit was brought to close. The particular difference between the plaintiffs and defendants is the ownership of the Southern Express Company. The plaintiffs claim that certain notes they held were for the bona fide sale of the property of the Adams Express Company in the southern states at the commencement of the war. The defendants contend that the notes were a mere cover for the property, and that the Southern Express Company stock, really amounting to a large sum, should be accounted for, and that, when the accounting took place, it really was theirs. On the attention of the plaintiffs being called to this claim, and many years after the trust was created, they at once commenced a suit to end the trust. All the defendants were informed that it was of a friendly nature, to settle up the trust, and with the complaint all the stockholders received a circular asking them to send authority to plaintiffs’ attorneys to appear for them, but no sort of intimation was given in regard to what the plaintiffs claimed as to the Southern Express Company or the claims made against them on it. The stockholders having faith in the trustees, sent them appearances, and the suit proceeded to judgment, which, as above stated, defendants asked to set aside, and be allowed to test the ownership of the property claimed by them.</p>

The defendant moved for a resale -of premises sold on mortgage foreclosure. The premises were four times sold, for $173,500, $226,000, $219,500 and $191,500 respectively. The purchasers in the first three sales did not complete. The defendant alleges a combination on the part of the purchaser with two other persons to depress the sale and buy it under value.

<p>Pettier to grant ferrry franchises.</p> <p>The city of New York has power under its charter to establish ferries around New York. This power is absolute, conclusive and exclusive, as well as to rights of property as a naked power, subject only to the right of the sovereign power (the state) to take it away for public purposes, and upon full compensation.</p> <p>The policy of the law and its known prohibitions prevents any person from running a ferry from Manhattan Island to the opposite shores without a license or grant from the corporate authority.</p> <p>The defendant the Staten Island Ferry Company, a private corporation, through a lease from the North Shore Staten Island Ferry Company, established a ferry from the foot of Whitehall street to the east shore of Staten Island; held, that through its incorporation, or with a lease from the other company, it had no such right, even with the consent of the department of docks.</p> <p>The plaintiffs’ right being exclusive, and clearly established by charters and statutes, there is no necessity to have it established by an action at law.</p> <p>An injunction for their protection until the hearing granted.</p>

In 1871 John T. Daly became the owner, by lease dated 29th April, 1871, from Peter Goelet and others, of a parcel of land on the Fifth avenue, in the city of New York, between Forty-sixth and Forty-seventh streets, extendipg in depth 140 feet, and by a second lease, dated 29th April, 1871, from the same parties of a lot twenty feet in width on the northerly side of Forty-sixth street, adjacent to the parcel above described.

<p>A motion for an injunction was argued in this court against the Congregation B’nai Jeshurun. The injunction was urged upon the application of Mr. Solomon, one of the members of the congregation, who sought to restrain the society from removing and changing the pews of the synagogue in violation, as he claimed, of his rights and franchises as a pew owner, and also on the further ground that the contemplated changes were contrary to the customs, usages and doctrines of the Jewish people.</p>

<p>Appeal from an order made at special term denying motion to vacate order of arrest.</p>

This is an action brought to recover $15,000, which sum the plaintiff claims to be due him for services rendered to the defendant in procuring, by means of his influence, from the commissioners of docks, for the use of the White Star line of steamers, a lease of piers 51 and 52'Borth river. It seems that the defendant contracted to pay plaintiff the above mentioned sum of money if he should succeed in procuring a lease of the said piers for the annual rent of $50,000.

<p> Mechanics' liens. </p> <p>The notice to foreclose mechanics’ liens, required by sec. 6, chap. 500, Laws of 1863, must contain a statement of all the liens filed by lienors other than plaintiff, the amount thereof and the times of filing such liens.</p> <p>An omission of this character is fatal, and cannot be cured by amendment. The court does not get jurisdiction, and the proceedings must be dismissed.</p> <p>Any party on whom the notice is served may make the objection; but a general appearance or proceeding in the matter is a waiver of the objection.</p>

<p> A decision in practice upon an order of arrest. </p> <p>Under the rule that requires an indorsement on an order of arrest, it is not sufficient that the indorsement he made on the original order only — it must he also made upon the copy served upon the defendant.</p>

This action was brought by the plaintiff, who sues under a judgment obtained against Joseph Horton, Leon Weil and Alphonse Weil of this city, party defendants herein, and Austin Baldwin, assignee for the benefit of their creditors, and is brought to set aside the said assignment as void.

<p>Appeal from a verdict entered 'by direction of the court, the exceptions to be heard in the first instance at the general term.</p>

<p> Proper execution of assignment for the benefit of creditors. </p> <p>An assignment for the benefit of creditors should be made, executed and acknowledged in the manner and according to the forms prescribed by statute.</p> <p>Where an assignment does not contain, in the body of it, the names of the creditors, &c., but they are contained in a schedule with the order of preference, &c., the schedule must be annexed to the assignment and form a part of it, before the latter is executed and acknowledged, otherwise the assignment is void.</p> <p>An assignment which contemplates that the schedule of creditors be annexed at some future time is fraudulent upon its face, as it in effect reserves to the debtor the right thereafter to designate the persons who shall be preferred in the distribution of the assigned property and assets.</p>

This action was brought by the receiver of a judgment debtor appointed in proceedings supplemental to an execution to set aside an assignment in trust of the judgment debtor as fraudulent as to creditors. On the 21st of July, 1874, a judgment was recovered against Herman Ahrensdorf in the marine court of this city, and a transcript filed in the office of the clerk of the city and county of Hew York.

<p> Taxation of costs. </p> <p>The standing auditor, under general order 30, has no jurisdiction to tax a marshal’s hill of costs.</p>

The defendant Griffith, in 1873, was owner of three houses and lots, Nos. 558, 560 and 562 West Forty-ninth street. The drainage of the houses Nos. 560 and 562 was through a single pipe laid beneath the cellars and communicating with another pipe laid beneath the cellar of No. 558, the latter pipe being the only conduit for all the houses to the sewer in the street.

<p>Where a marriage contract is found, upon due proof, to have been procured by deception and fraud, it will be declared void.</p>

<p>In error to the supreme court of the state of Wisconsin.</p>

<p> Bona fide holder for value. </p> <p>The Stuyvesant Bank, just before its failure, received on deposit an accommodation check drawn by the defendants upon the Sixth National Bank. The Stuyvesant Bank gave credit therefor on its books to the payees thereof, who deposited it. The Sixth National Bank declined to honor the check, which afterward passed into the plaintiff’s hands, as assignee in bankruptcy of the Stuyvesant Bank.</p> <p>Held, that the Stuyvesant Bank did not become Iona fide holders of the check for value, and that its assignee had no right of action upon it against the accommodation drawers.</p>

Two demurrers were interposed for account of parties. The complaint is in equity and sets up that John Gordon, being seized of certain real and personal estate, by his will, gave in trust the income thereof to his daughter, the defendant, Mary Frazier, the wife of Fitzgerald Frazier, the trustee, during her life, and, at her death, to apply the net rents and income to the education and support of her children until they should arrive at the age of twenty-one years, when the…

Cunningham & Tompkins, owners of a barge called the Franklin, for the consideration of $2,500, sold the said vessel to one Boach. Boach, simultaneously therewith, gave back two notes, dated May 11, 1868, for $1,000 each, payable one at six months and one at twelve months after date (for part of the purchase-money), and, to secure said notes, executed a chattel mortgage on the said barge, recorded in the New York custom-house on May 12, 1868.

<p>Abatement— cause of action swmves —parties.</p> <p>Where an action against two defendants, the cause of which survives, proceeds to interlocutory judgment against them, and one of the defendants dies, and it appears that he was not a necessary or even a proper party defendant, the action can proceed against the survivor, and the case can he relieved from embarrassment by applying to the court for leave to drop the deceased defendant out of the case.</p>

<p> Action for legal services. </p> <p>When the facts presented before a referee only make out a presumptive right to recover on the part of a plaintiff, the referee may find against him, because his proof is not conclusive and does not operate as an estoppel on the defendant, excluding the right to contest the claim made against him by the plaintiff.</p> <p>Either partner in a firm can bind himself by using the firm name in an affair having no connection with its business, but the liability would extend no further as long as the party dealing with him understood him to be using the firm name for the convenience of another person, and outside of the scope of its business.</p>

<p> Statute of limitations—onus of showing residence. </p> <p>It does not require more than a prima facie case to shift the burden of proof upon the defendant, where his actual residence is a fact peculiarly within his own knowledge, although the burden of proof to show that he had resided out of the state was originally upon the plaintiff.</p> <p>The place of business of a party need not necessarily be his place of residence; hut long-continued business at a particular place is, in the absence of anything to the contrary, presumptive evidence, and devolves upon the party against whom the presumption arises the burden of overcoming it.</p>

<p>Dehtjbeeb to answer.</p> <p>The plaintiff in his complaint alleged that he is, and at the times therein referred to was, the duly appointed clerk of the court of common pleas in and for the city and county of ISTew York; that his salary was fixed, by an act of the legislature of the state, at the sum of $6,000 per annum; that he has performed and is still performing his duties as such clerk, and has been paid therefor at such rate, except from the 1st of June, 1872, to January 1, 1873, during which time his salary was reduced by action of the board of apportionment, and he was paid at the rate of $4,800 per annum ; that he took this reduced compensation under protest, and that there is now due to him a balance of $700.</p> <p>The answer contained three distinct and separate defenses, viz.:</p> <p>1. That the reduction was made by the board of apportionment May 17, 1871, under authority conferred by chapter 583 of the Laws of 1871.</p> <p>2. That such reduction was acquiesced in by the plaintiff, who gave a receipt in full.</p> <p>3. That no othér or greater sum than the amount sufficient to pay plaintiff at the reduced rate was raised or authorized to be expended during the balance of the year 1871.</p> <p>The plaintiff demurred to the first and the third defenses on the' ground of insufficiency.</p>

<p> Pa/t'Ues in a mortgage foreclosure—alleged, deficiency. </p> <p>On the foreclosure of mortgaged premises, where it appears after the sale that a mortgage executed by a grantee of the mortgaged premises, whose deed had not been recorded, and an assignment of the mortgage to a person who was not made a party to the foreclosure, had been recorded before the filing of the notice of pendency of the action—neither the plaintiff nor his attorneys having actual notice of this mortgage or assignment:</p> <p>Reid, that all such incumbrancers were foreclosed by the judgment in the action, notwithstanding they were not made parties thereto.</p>

The defendant was a, corporation organized under the general mining and manufacturing laws of the state of New York, and was the owner of a valuable invention known as the American submarine and torpedo boat, and of all the patents that were or were to be issued covering and protecting the same.

<p>This is a suit growing out of certain stock transactions between the parties.</p>

The defendants appear to show cause why an injunction restraining them from representing a play called “Rose Michel ” should not be continued during the pendency of the action.

A motion was made in this court for the discharge of Aaron Jacobs from a commitment for contempt by the superior court. Jacobs was committed in December, 1874, for thirty days, and an additional fine of $2,470.54, for the contempt in question. The counsel for the relator moved on the habeas corpus proceedings for his discharge, on the ' ground that the court exceeded its powers in the punishment inflicted.

<p> A verbal trust—assignment of mortgage personally by an executrix without consid&ration. </p> <p>Where an executrix held a mortgage given to her as security for moneys due and coming due under her husband’s will, and it was treated by her and the heirs as her personal property, which mortgage she assigned and executed personally without consideration to her daughter, the defendant:</p> <p>Held, in supplementary proceedings against the executrix subsequently, that oral proof should not now change the legal effect of the assignment of the mortgage thus made, by claiming that it was held in trust by the executrix for her husband’s estate, although it was assigned personally by her.</p> <p>Besides, under the statutes, if the assignment had been in writing containing a trust for the person making the same, it would be void as against existing or subsequent creditors.</p>

<p>Demurrer to complaint.</p> <p>This suit is brought to recover $903.22, the alleged expense • of extraditing two fugitive criminals from California.</p>

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

After taking all the testimony in the BatUng Case the counsel, by agreement, consented to submit the case to the jury without summing up, whereupon judge Westbrook, after stating that he had understood counsel to waive any address to the jury and that the evidence was closed, charged the jury as follows:

The plaintiff, who was an infant of about nineteen years of age, commenced an action against the defendant, after a guardian had been duly appointed, for said plaintiff. On the trial of said action the complaint was dismissed, and the defendant asked to have judgment entered against the plaintiff for his costs, and also that the guardian of the plaintiff pay the costs, or on default that an attachment issue against said guardian.

On the 25th day of April, 1874, the relator, through his attorney, James A. Deering, Esq., gave notice of a motion to be made on the 5th day of May, 1874, for a peremptory mandamus against the board of assessors of the city of Hew York, directing them to estimate the damage done the relator’s property by reason of the closing of Bloomingdale road, between Manhattan street and One Hundred and Twenty-seventh street, in said city, under and pursuant to chapter 697 of the Laws…

Motion on the part of the bank to vacate an ex parte order made by the court at special term, appointing a referee to examine into its affairs, under section 25 of chapter 260 of the Laws of 1838, entitled “ An act to authorize the business of banking.”

Motion by defendants to vacate and set aside an order appointing a receiver of the assets and property of the Exchange Bank of Lansingburgh.

<p>Indictment for grand la/rceny — stealing property belonging to the state.</p> <p>Where a draft has been sent to thé comptroller of the state for the purpose of paying taxes, the state has such a property in it as that, against a thief, it is properly charged in the indictment against him to be the property of the state.</p> <p>Where the prisoner having received this property for the treasurer of the state, as the property of the state, and having entered it as the property of the state upon the proper books belonging to the treasurer’s office, he is not in a position to set up a want of legal title in the state, the state having thus the actual possession of the property.</p> <p>Where the indictment charges this draft as belonging to the state, and not to the people of the state, the averment is correct. Under the various statutes of the state this draft is, in fact, the property of the state, the title being vested in the corporate body.</p> <p>To constitute larceny it is not necessary that the draft should be legally available in the prisoner’s hands by proper indorsement. It is enough if the owner has been deprived of a valuable thing, whether the prisoner can legally obtain any benefit from its possession or not.</p> <p>The statute does not make it depend upon a proper indorsement of the draft to render it valuable, but if, in “ any event or contingency,” any thing might be collected thereon, then, in that case, it is of the value which the instrument purports to be.</p> <p>As this draft is personal property, and the taking of it is averred in the indictment, and its value declared, that makes the statement of the statute crime of larceny complete; therefore it is not necessary that the indictment should charge that the amount, which it purports to secure; was the sum actually due thereon.</p> <p>The prisoner was the simple custodian of the draft for the owner; he received it for the treasurer, and, therefore, for the state; he was the clerk of the treasurer. When he received the draft, which in judgment of law was received by the state in payment of taxes, and passed into the possession of the treasurer, he, as such custodian, had no discretion to exercise, except, perhaps, as to which one of the hanks of deposit it should he placed in, and, when he took and used it, it was larceny in the law, though, when it came into his hands, he may have formed no such intention.</p>

<p> False entries in account booh made with intent to deceime cmd defrcmd. </p> <p>A prisoner will be convicted of forgery, where the evidence shows that he made a false entry in a ledger under his control as cashier or clerk in a public office, for the purpose of deceiving and defrauding.</p> <p>It is sufficient if it was made for the purpose of covering up any illegal taking of money by the prisoner, whether that money was taken at the time when the entry was made, or if it. was taken at a time anterior and prior. In law he is presumed to have intended to defraud, if for any period of time he meant to cover up the illegal taking of the money.</p>

<p> Indictment for la/rceny from the state on another and distinct draft. </p> <p>The principal difference in the facts between this trial and the first and second one, ante, was that the draft sent to the comptroller for the payment of taxes, was not received in the treasurer’s office by the prisoner personally, but was received and entered in the treasurer’s books by another clerk, and by him deposited in the safe in the office, from which the prisoner took it.</p>

<p>Phelps sentenced; fifteen yews at’hwd, labor in the Albany Penitentiary ; judge Westbrook’s add/ress to the prisoner ; the end of a tedious trial.</p>

The case of David Kingman, charged with attempting to bribe a juror in the late trial of Phelps, was continued yesterday morning before justice T. K.. Westbbook. The case was summed up on the part of the prosecution by district attorney Moak at the opening of the court. Judge Westbbook, after a brief consultation with his associates, announced his decision as follows:

<p>Mortgage — uswry— estoppel.</p> <p>Where, upon the assignment of a mortgage, the mortgagee covenanted that the principal sum was due and owing upon the mortgage, the assignment being also accompanied by an affidavit of the mortgagor, in which he stated that the mortgage was a good and valid lien on the premises for the full amount, and that there was no offset, counter-claim or other matter affecting the validity of the mortgage and the whole amount secured thereby. And it further appeared that the plaintiff purchased the mortgage of the mortgagee, believing the statements of the guarantee and affidavit to be true, and relied upon their truthfulness :</p> <p>Held, that under such circumstances the defendants, the mortgagor and mortgagee, and those claiming an interest in the premises under the mortgagor, are estopped from controverting the truthfulness of the statements contained in the affidavit and guarantee.</p> <p>The law presumes that statements and affirmations so solemnly made are true, rather than false, and persons acting in good, faith may reasonably give full reliance to them.</p> <p>But if the making of the affidavit and the giving of the guarantee were exacted by the plaintiff as expedients or contrivances to cover the vice of usury, the truth may be shown.</p>

<p>Application for an injunction to restrain . the defendant' from appropriating and using a lot in the city, conveyed to it for burial purposes, to erect thereon a city hall.</p>

<p> Oosts in an action of assault and battery. </p> <p>In an action for assault and battery where the plaintiff recovers six cents damages and the judge certifies that title to land came in question on the trial, the plaintiff is entitled to full costs.</p> <p>Section 304 of the Code has not repealed or changed the Revised Statutes on the subject of costs.</p>

Application by plaintiffs for attachment against James Lee, for contempt, in putting in fictitious sureties on appeal, and for other misconduct.

<p> When am, assignment of a life policy of insurance by the asswi'ed to secure a debt does not vest the title to the insurance money in the assignee. </p> <p>Where a husband procures a policy of insurance upon his life for the benefit of his wife and both of them execute an assignment of it to a creditor of the husband to secure an existing debt of the husband, the validity of the wife’s title to the insurance money is not affected by such assignment.</p> <p>And where, subsequently, the husband ánd the assignee, without the knowledge or consent of the wife, and in fraud of her rights, collude together, and by non-payment of the premiums on the policy suffer it to lapse, and the company, after the policy is canceled and on application of the assignee, issues a new policy to and in the name of the assignee, but in all other respects precisely like the old canceled policy, without any new consideration, from the assignee or from any other source, a court of equity will adjudge the new or substituted policy equitably the property of the wife, and that payment under the same should be made to her.</p> <p>Where it appears that the assignee, after appearance and answer in this action, commenced an action against the company in another state upon the same policy, the court will enjoin him from collecting or attempting to collect the insurance, or in any manner to enforce the judgment which might be recovered in that state.</p>

<p>The illegal erection of pirn's into New York hay on the eastern shore of Staten ' ' Island.</p> <p>Where the owner of property in New York bay at Staten Island claims under a patent formerly—many years ago — granted by the state to a patentee, extending the patent line from, low-water mark 500 feet out into the bay, he cannot legally erect a pier into the bay beyond that line. Any erection beyond that line is subject to removal by the people of the state in an action for that purpose, notwithstanding the owner claims that the erection does not extend to the line defined as a limit by the harbor commissioners under the act'of the legislature of 1857.</p> <p>Under the act of 1857 the legislature, as they had the constitutional power to do, defined and regulated the manner of building and erecting piers around New York and Staten Island, into the rivers and bay, by requiring them to be of a specified width and to have intervening water spaces between them of at least 100 feet.</p> <p>It appears that the defendant’s dock or pier was not only erected beyond the patent line eastwardlv into the bay, but did not have an intervening space of “ at least 100 feet ” between it and the adjoining pier upon its south side, as required by the act of 1857, consequently the plaintiffs were entitled to a judgment of removal of the pier from their property.</p>

<p> Sights in the use of a party wall., </p> <p>Each adjacent owner of a party wall has the right to its use in the improvement of his own property, but at his own peril so far as injury might result therefrom to his neighbor.</p> <p>A flue constructed partly through a party wall is subject to the ’rightful and proper use of an adjacent owner in the improvement of his own property.</p> <p>Over twenty years use of a flue in a party wall raises a strong presumption of its safety. Eor any apprehended danger therefrom, an adequate and summary remedy exists by an application to the public authorities.</p>

<p>Pwrty walls amd th&vr use — how they may he used in connecting the fronts of the buildings thereon — encroachment — vnjunciwn.</p> <p>A party wall may be used by the adjoining owners, for whose mutual benefit it was constructed, not only for the support of beams and for the construction therein of fire-places and flues, but also to form a complete and perfect junction, in an ordinary good mechanical manner, between it and the exterior walls of the house. \</p> <p>Opinion of White, J., in Fettñtch agt. Learwy (9 Bosw., x>25) approved.</p> <p>Under the evidence it appears that a party wall is never brought up to the line of the street, but a space is always left in front of the wall, between it and the street line, for the front walls of the respective houses. The portion of the front resting on the wall is no part of the party wall.</p> <p>Usage hi building and connecting fronts with party walls considered. No general custom established. A limited number of exceptional cases do not establish a law or usage on the subject.</p> <p>The adjacent proprietors own in severalty, the portion of a party wall standing upon their respective lots, but subject to its mutual use for the purposes for which the wall was built, so long as it shall endure (Sherred agt. Cisco, 4 Sandf, 480).</p> <p>When a party wall stands wholly or principally upon the land of one of the owners, the adjoining owner has no recognized legal right, growing out of his interest in the wall, to extend the front of his building thereon beyond the limits of his lot.</p> <p>The land lying in front of a party wall, between that and the line of the street, is to be exclusively enjoyed by its owners, freed from any burden or easement growing out of a simple party wall agreement, and is to be occupied by the adjoining owners according to the boundary lines of their lots for the construction of their fronts.</p> <p>The .front of a party wall may be used to connect therewith the fronts of the adjoining houses, but such use does not necessarily oblige a party to go beyond his boundary line with his front.</p> <p>It appears that by the use of anchors a party whose land adjoins the party wall may safely connect, without encroaching on the other’s land, his' front therewith.</p> <p>In the case under consideration there was no real necessity for the building of the plaintiff’s front that he should have gone beyond the limits of his lot; within the two inches of his own land, lying in front of the wall, he might safely and in a good and workmanlike manner, have completed and secured the stone front or ashlar of his building therewith. In going beyond and to the center of the wall, he occupied, without legal right, six inches of the defendant’s land, being in front of the party wall.</p> <p>The mere fact that the defendant’s grantor did not object, while the plaintiff was building and connecting the front of his house with the party wall, does not imply that she acquiesced in the appropriation of her, land lying in front of the wall to his use (Christianson agt. Linford, 3 Robertson, 215).</p> <p>The only acquiescence which can be availed of, by means of which to establish a claim of title in lands, must have continued for the full term of prescription, or the full term prescribed in that behalf by the statute of limitation.</p>