Volume 49 — New York Supreme Court Reports

<p>When a condition of a bond will he treated as an agreement — when specific performance thereof will he enforced — presumption as to an inst/rument having been under seal — what consideration will support an agreement — the court will not dweet specific performance where a parrty is unable to perform his contract.</p> <p>On February 5,1880, the defendant made to the plaintiff his bond in the penal sum ■ of 0,000, containing the condition “ that if the said Julia Martin (the plaintiff), her heirs, executors, administrators or assigns shall pay to the said Jesse Colby (the defendant), his executors, administrators or assigns the just and full sum of fifty-eight hundred and fifty dollars, and the interest from the date hereof in one year from the date hereof, then said Jesse Colby, his heirs, executors or administrators shall execute and deliver to the said Julia Martin, her heirs, executors and administrators a good and sufficient warranty deed in fee simple, with the usual covenants, of the samé lands in the town of Alden which are described in a certain deed this day executed by Levinus W. Cornell and wife to Jesse Colby, then this obligation to be void, else to remain in full force and virtue; and the said Julia Martin shall pay, in addition to the stated sum, for all improvements that the said Jesse Colby shall have done on the said lands during one year from the date hereof, and the said Jesse Colby shall have all the privileges of the said lands as he would have if this writing was not made.”</p> <p>On February 5, 1881, the plaintiff caused a tender to he made to the defendant of the amount she claimed was then due to him, and requested him to execute a deed of the lands. He having refused so to do, upon the ground that the bond had been canceled, the plaintiff brought this action to compel a specific performance of the agreement, and recovered a judgment therefor.</p> <p>Held, tliat the agreement to execute and deliver the deed of the lands constituted an agreement to sell them, and imposed upon the defendant a duty to convey the lands, which could be specifically enforced in this action.</p> <p>The original bond was not produced upon the trial, and the copy used had no mark following the name subscribed to indicate that the original was sealed, but the language of the instrument declared that it was sealed</p> <p>Held, that this was some evidence of the fact that the original bond was sealed.</p> <p>That a sufficient consideration for the defendant’s agreement was shown by proving that the conveyance, made at the same time to the defendant by Cornell, was made pursuant to an undertaking that the defendant should permit the plaintiff to purchase the property at the price mentioned in the bond.</p> <p>On .March 31, 1880, thirty-five acres of the land were conveyed by the defendant and his wife to the plaintiff, by a deed expressing the consideration of $3,000, the plaintiff giving back a mortgage to secure $3,200 of the purchase-money.</p> <p>Held, that this did not necessarily operate as a satisfaction or rescission of the contract expressed in the bond.</p> <p>That as the nature of the liability which the plaintiff might incur for the improvements, which might be made by the defendant, was such that she could not accurately measure their value, and as no means was provided by the contract for determining this question the provision for the payment for such improvements would be construed to create a liabi.ity rather than a condition precedent, and 'that the plaintiff was not required to cover by the tender the value of any improvements which the defendant might have made.</p> <p>The defendant offered, but was not allowed, to prove that hi-s wife had refused, and did refuse, to sign a deed conveying the lands to the plaintiff, the refusal of his wife to execute the deed having been alleged in his answer.</p> <p>Held, thafothe court erred in refusing to receive the evidence.</p>

, of Bernard Baxter, deceased. It appears that Bernard Baxter died intestate, May 27, 1862, leaving Bridget Baxter, his widow, and three infant children: Mary, aged seven years; Bernard, aged two years; and Ella, aged seven months. And J une o, 1862, Bridget Baxter, the widow, and George Hyland were appointed administrators. The personal estate consisted of livery property, amounting, as per appraisal and inventory, to $1,481.

The defendant was a private or individual banker at Scio, N. Y. The evidence tends to prove that on the 5th day of December, 1882, Sliney & Whelan indorsed and presented a note, made by Knox Brothers for $3,500, to the defendant’s bank for discount, and that it was there discounted with the oral understanding that the proceeds should not be paid until the fifteenth of the month, and thereupon the defendant’s cashier gave to Sliney & Whelan a deposit check or certificate in…

<p>Receiver in supplementary proceedings— the title to only such real estate of the debtor as lies within this State is vested in Mm — Oode of Civil Procedure, sec. 2468.</p> <p>Upon an appeal by tbe plaintiff from an order made at a Special Term denying bis motion that 'tbe court direct and require tbe defendant to execute and deliver to tbe receiver — appointed in supplementary proceedings instituted upon tbe judgment recovered in tbis action — a conveyance of bis interest in lands situate in tbe State of Illinois, and punish him, for contempt, because of bis disobedience of an order of tbe county judge of Ontario county directing him to make such conveyance:</p> <p>Meld, that tbe order should be affirmed.</p> <p>That tbe power conferred by sections 297 and 298 of tbe old Oode upon tbe judge acting in such proceedings to order any property of tbe judgment debtor, not exempt from execution, to be applied towards tbe satisfaction of tbe judgment, ceased upon tbe repeal of these sections by chapter 417 of 1877.</p> <p>That although this court may and will exercise its equity powers at Special Term upon motions to compel conveyances to be made to receivers, in actions where the facts and circumstances are such as not to require a trial of issues in an action brought for the purpose of determining the question upon which the right to relief depends, yet it could not make the order applied for in this case, for the reason that the title to the real estate in Illinois was not vested in the receiver, as section 2468 of the Code of Civil Procedure, providing for the vesting of the property of the judgment debtor in the receiver, expressly excepts “ real property,” the title to which is “ only ” to vest in him from the time when ' the order, or a certified copy thereof, is filed with the clerk of the county where it is situated, thereby requiring the situs of all real estate, to be vested in Mm, to be witMn the limits of this State.</p> <p>That the plaintiff’s remedy was by a judgment creditor’s action under the provisions of article 1 of title 4 of chapter 15 of the Code of Civil Procedure.</p>

This is a proceeding by certiorari to review the assessment of 1885, made of the relator’s property. The relator was incorporated “ to establish and maintain a seminary of learning in the county of Niagara, for the care and education of young men,” by Laws of 1863 (chap. 190).

By his will, under date of July 24,1876, David Piffard directed his executors to sell all his property, real and personal, and after the payment of his debts and funeral expenses he gave and bequeathed one-fifth of the remaining proceeds to his daughter, Sarah Eyre Piffard.

Decimus R. Burrows and Calvin G-. Lane were partners, carrying on the lumbering business at Tonawanda, N. Y., in the firm name ■of Burrows & Lane. The justice before whom the action was tried found, among other things, as follows: “ That the defendant Burrows and said Calvin G. Lane Were engaged in a general lumber business at Tonawanda, and that shortly prior to December 18, 1873, said Lane absconded from this State.

- Appeals from judgments, entered upon the reports of a referee.

<p>Lease of lands to be used for the purpose of boring for oil or gas — construction of covenants contained in it — when a covenant will be held void for uncertainty.</p> <p>On May 19, 1881, the defendant Foster leased to the plaintiffs fifteen acres of land, with “ the right to take, bore and mine for and gather all oil or gases found in and upon the premises, to have and to hold the same for the term of twelve years from this dato, or as long as oil is found in paying quantities,” the plaintiffs agreeing to give Foster one-eighth part of the oil produced and saved from the premises. By the lease the party of the second part (the plaintiffs) covenanted “ to commence operations for said mining purposes, and prosecute the same on some portion of the above-described premises within two years from this date, or thereafter pay to the party of the first part (Foster) dollars per until work is commenced. This lease shall he null and void, and at an end unless said second party shall, within six months from this date, commence and prosecute, with due diligence, unavoidable accidents excepted, the sinking and boring of one well on or in the vicinity of this lease, to a depth of. twelve hundred feet, unless oil in paying quantities is sooner found. * * * If the party of the second part fails to keep and perform the covenants and agreements by him to he kept and performed, then this lease shall he null and void, and surrendered to the party of the first part.”</p> <p>Within six months from the date of the lease the plaintiffs drilled a well of the required depth, natural gas being found at the depth of 1,045 feet in largo quantities, and some oil, but not in paying quantities, at 1,093 feet. The plaintiff used the gas for fuel in drilling the well, but not in any other manner. In the fall of 1882 the plaintiffs removed their engines, etc., leaving the casing in the well, and ceased to carry on mining operations.</p> <p>In February, 1884, Foster leased the premises to the defendant, Charles P. Thurston, who subsequently assigned such lease to the defendant, The Allegany Gas Company (Limited), for the same purposes, pursuant to which they entered into possession of the same and collected and sold the gas.</p> <p>In this action, brought by the plaintiffs to restrain the defendants from interfering with, or appropriating to their own use, the gas well and the gas therein, the referee lield that the suspension of work upon the premises and the neglect of the plaintiffs to prosecute the same from the spring of 1882, to the time of their demand, gave Foster the right to declare the plaintiffs’ rights under the lease forfeited, q,nd that the coinplaint should have been dismissed.</p> <p>Held, that he erred in so doing.</p> <p>That there was no covenant in the lease which required the plaintiffs to continue the boring of oil wells upon the premises until oil was obtained in paying quantities, under a penalty of forfeiting their rights by a faiure so to do.</p> <p>That the covenant requiring them to commence and prosecute operations for mining purposes within two years from the date of the lease, or thereafter pay to the party of the first part dollars per until work is commenced, was void for uncertainty, by reason of the blanks which were left in the vital and essential parts thereof.</p> <p>That the decision could not be sustained because the referee was of the impression that the lease was hard and unconscionable and that equity would not enforce the performance of it for the reason that it contained no provision for giving the lessor any part of the gas found upon the premises.</p> <p>That if a clause, providing that the lessor should have one-eighth part of the gas, had been omitted by mistake,, the contract might still be reformed so as to express the intention of the parties; that if it now expressed their intention the parlies must abide by it.</p> <p>The defendants claimed that the lease had expired by its own terms, as the provision that the lessees should “ have and hold the same for the term of twelve years from this date, or as long as oil is found in paying quantities,” limited the term to that period, during which oil was found in paying quantities.</p> <p>Held, that this claim was not well founded; that the term fixed was for twelve years, and as much longer as oil was found in paying quantities.</p>

Motion by the plaintiff for a new trial on exceptions ordered at the Ontario Circuit, to be heard at the General Term, in the first instance;

<p>Set-off — when allowed in equity as against an assignee, where the debt sought to be set-off was not due at the time of the making of a general assignment by the insolvent debtor.</p> <p>On September 10, 1884, tbe plaintiffs indorsed and discounted, at a bank in Rochester, a note for $5,000, made by the firm of Buchman Brothers & Co., to the order of, and indorsed by, the firm of Rindskopf Brothers & Co., of the city o.f New York, and remitted the proceeds thereof to the said firm of Rindskopf Brothers, being induced to so act by the representation made to them by the latter firm that the note was as good as the Bank of England, and that the plaintiffs would run no risk in indorsing it. Upon the maturity of the note, on December 22, 1884, the plaintiffs were compelled to pay the note.</p> <p>At the time the note was given, the firm of Buchman Brothers & Co. was, and ever since has been, insolvent, and on September 20, 1884, it made a general assignment. The firm of Rindskopf Brothel's & Co. was, at the time of the delivery of the note, and ever since has been, insolvent, and on December 19, 1884, made a general assignment to the defendant.</p> <p>In this action, brought by the plaintiffs to have the amount so paid by them set off, and applied in extinguishment of an indebtedness of the plaintiffs to the firm of Rindskopf Brothers & Co., which became due and payable about January 1, 1885, a judgment was rendered in their favor.</p> <p>Held, that it should be affirmed.</p> <p>Littlefield v. The Albany Gounty Bank (97 N. Y., 581) followed; Martin v. Kummullcr (37 id., 396) and Myers v. Bams (22 id., 489) distinguished; and Ghance v. Isaacs (5 Paige, 592-594) doubted and not followed.</p>

<p> Evidence of a custom, as to ike manner in which, other persons conduct their business, is not admissible in faroor of a defendant sued for negligently conducting his business. </p> <p>In February, 1884, the plaintiff, who was walking on the west side of Louisiana street, in the city of Buffalo, turned, when opposite to the north side of Mackinaw street, to cross to the other side of Louisiana street. When he had nearly reached the curb-stone, on the easterly side of Louisiana street, he was hit by a board which had been blown from a lumber pile which was owned by the defendants, who were engaged in the lumber business, their yards being on the west side of Louisiana street.</p> <p>Upon the trial of this action, brought to recover damages for the personal injuries sustained by the plaintiff, evidence was given tending to show that the lumber piles in the defendants’ yard, when originally completed, were bound or tied down by boards crossing the top and hooked by means of clasps lower down upon the pile so that the boards upon the top of the pile could not blow away; that 'the pile from which the board in question came, had some days before been broken into and a portion thereof had been drawn away, and that the pile had been left without again being tied or fastened.</p> <p>The defendants called a number of lumbermen doing business in the city of Buffalo, and were allowed, against the objection and exception of the plaintiff, to prove by them that it was the common custom, in lumber yards in ' that city, where a pile was once opened and was being used, not to again fasten the lumber down. The court charged that the jury had the right to take into • consideration the evidence given by these witnesses, to help them to satisfy their minds and form their judgments as to what was, in that business, care and prudence.</p> <p>Held, that the court erred in admitting the evidence and in so charging.</p> <p>That the question of negligence was one for the jury, under the circumstances of the case, and did not depend upon the custom of persons engaged in a like business.</p> <p>A rule of law cannot be changed by any local custom.</p>

<p>Practice — motion to dismiss an appeal to the County Court because of a failure of the sureties upon an undertaking to justify — the right to so more is not lost by the service of a notice of retainer or of trial — Code of Civil Procedure, sec. 3069.</p> <p>On .July 23, 1885, a notice of appeal from a judgment recovered by the plaintiff in a .Justice’s Court was duly served and the undertaking, required by section 3069 of the Code of Civil Procedure, was executed and filed with the justice, but no copy of the undertaking was served upon the respondents, nor was any notice oí tie filing thereof. On August eighteenth the attorneys for the respondents served a notice of retainer, and August thirty-first a notice excepting to the sureties upon the undertaking. On the twentieth of November they served a notice of trial, and on the twenty-fifth of November a notice of a motion to dismiss the appeal upon the ground that the appellant’s sureties had failed to justify and that no new undertaking had been executed and filed.</p> <p>Held, that a claim that the motion should be denied upon the ground that the respondents did not except to the sureties within the ten days provided by the Code, was properly overruled, as no copy of the undertaking, or notice of the filing thereof, was served upon the respondents, and they first learned that the undertaking had been filed on August 24, 1885.</p> <p>That neither the service of the notice of retainer nor of the notice of trial operated as a waiver of the right of the respondents to move to dismiss the appeal.</p>

The action, which was tried at the Allegany Circuit, where the plaintiff was nonsuited by the court, was brought to recover moneys alleged to have been deposited by Sliney and Whelan with the defendant, a private banker, the claim for which had been by them assigned to the plaintiff. When the plaintiff rested the defendant moved for a nonsuit, which was granted, on the ground, as the case states, that the plaintiff failed to show a title to the moneys deposited.

Appeals from orders made at the Monroe Special Term vacating, upon the merits, the warrants of attachment granted in the above-entitled actions. In each of these actions the plaintiffs, on the 7th day' of July, 1884, procured an attachment against the property of the defendants, on the ground that they had disposed of and secreted, and were about to dispose of and secrete their property, with an intent to defraud their creditors.

<p>Appeal from an order of the Monroe Special Term, granting a peremptory writ of ma/ndamus requiring the appellants to receive she relator as the minister of the society of which they are the trustees, and to open the meeting-house, of which they have charge, to the said relator, for t-he purposes of conducting religious exercises therein, in conformity to the faith, tenets and discipline of the Methodist Episcopal Church, and to do certain other things, specifically mentioned, of less importance, and referred to in the opinion.</p>

The action was brought to recover the purchase-money paid by the plaintiff as vendee to the defendant as vendor, on an executory contract for the sale of real estate. The vendor was the owner in fee of the premises at the time the contract of sale was executed and delivered.

Case submitted under an agreed state of facts, under section 1279 of the Code. In 1886, tbe plaintiff was an inmate of tbe “New York State Soldiers and Sailors’ Home,” located in the town of Bath, in the county of Steuben, organized and maintained under the provisions of chapter 48 of the Laws of 1878. The defendants were justices of the peace of said town and presided at the annual town meeting held for that year.

Motion by the defendant for a new trial, founded upon a case containing exceptions, ordered at the Allegany Circuit to be heard at the General Term in the first instance. The action was brought to recover moneys which the plaintiff in its complaint alleges that the defendant, as sheriff, collected on an execution in its favor against the Gibbs & Sterritt Manufacturing Company. The execution, was returned nulla bona by the sheriff and filed in the proper clerk’s office.

<p>Appeal from an order of the Monroe Special Term, granting the defendant’s motion for a new trial on a case containing exceptions. The action was tried at the Monroe Circuit, and the plaintiff recovered a verdict of $2,000.</p>

Arnold at the time of his death for the payment of his debts. The said order also provided that out of the avails of such sale the petitioners be allowed their costs and expenses of the proceeding, which were adjusted at $209.38. The petitioners’ claim amounted to $443. It was the price of a tombstone or monument sold by them to the administrator and erected in memory of the deceased. His estate was valued at from $10,000 to $15,000.

Brown, Robert M. Wall, Charles H. Levins and Samuel N. Reid, who are the respondents. These defendants and Thomas Kervin appeared and answered, denying many of the material facts upon which the plaintiffs’ cause of action is based, and setting up matters in defense, which, if true, would defeat a recovery as to all the defendants.

The original plaintiff was Byron Cochran, who died since the entry of judgment, and the respondent has been substituted as his personal representative.

Six other defendants are named, four of them being persons and two corporations. The Standard Oil Company of New York, the party demurring, is a business corporation organized under the laws of the State of New York, engaged in manufacturing and refining oil and placing the same upon the markets of the country.

The plaintiff recovered a general verdict of fifty dollars. There •was no verdict, or special or general finding upon an issue of fact, in favor of the defendant, at the circuit where the cause was tried before Mr. Justice Eish and a jury.

Plaintiff’s complaint was verified March 25,1885, and stated two' causes of action on contract and how they respectively arose. Plaintiff’s affidavit stated how the causes of action arose, and “that' there are no counter-claims, discounts or set-offs.” * * * “ The above entitled action is brought for said causes, and the summons has not yet been served.

The action was brought in a Justice’s Court, issue being joined therein December, 1884. On the 10th of January, 1885, the plaintiff recovered a judgment for ninety-three dollars and ninety-two cents damages. The plaintiff appealed to the County Court on January 28, 1885, and demanded a new trial. No offer of judgment was made by the responden]:.

The action was brought to recover for personal injuries sustained by plaintiff in one of the streets of the defendant’s village, and for the recovery of a sum of money only. Before the commencement of this action the plaintiff appeared before “ the common council, while in actual session, and made a verbal statement of his injuries and claimed he ought to be paid something, but stated no amount. Being asked what the amount was, he replied he could not tell.

minutes of the justice before whom the action was tried. The action was brought upon a bond of indemnity given to a sheriff to indemnify him against any loss or damages which he might sustain by reason of a levy and sale which he had made. The defense was that the defendant Penfield was induced to execute the bond by false and fraudulent representations made to him.

The action was brought to recover wages alleged to be due to tbe plaintiff, as a teacher, at forty dollars per month, for three months, $120.

Appeal by the defendants Everson from an interlocutory judg. ment overruling a demurrer interposed to the complaint. The plaintiff was appointed a receiver of the defendant, the Syracuse Iron Works estate, in an action for the sequestration of its property, brought at the suit of R. N. Gere under the provisions of section 1784 of the Code of Civil Procedure.

<p>Appeal from a judgment of the Court of Sessions of Chenango county convicting the defendant of a misdemeanor.</p>

<p>Accommodation indorser — when he cannot compel the guarantor of a note to contribute.</p> <p>©.II. Plato, the defendant’s son, offered a note made by himself and indorsed for his aocommodation by the plaintiff, to one Olney in payment of an indebtedness due to him. Olney having refused to accept it unless the defendant’s signature was procured, the defendant, with full knowledge of the facts, executed on the back of the note, above the plaintiff’s signature, an absolute guaranty of the payment of the note. The note was delivered to Olney. The plaintiff had no knowledge of or participation in the procuring of the defendant’s guaranty. The plaintiff, having been compelled to pay the note,brought this action against the defendant as a guarantor, claiming that she, as a co-surety for the principal debtor,©. H. Plato, who was insolvent, was liable to contribute one-half of the amount the plaintiff had been compelled to pay.</p> <p>Held, that the action could not be maintained.</p> <p>Harris v. Warrier (13 Wend., 400); Belloni v. Hreeborn (63 N. Y, 383) followed; Wells v. Miller (66 id., 255) distinguished.</p>

Motion by the defendant for new trial after the entry of an interlocutory judgment under section 1001 of the Code of Civil Procedure, and also an appeal by the defendant from an order refusing to appoint a referee to admeasure dower to plaintiff in the lands described in the complaint. The action was brought by plaintiff, as widow of one Patrick O’Dougherty, deceased, to recover dower in land which he had owned during coverture.

March 12, 1886, the recorder of the city of Elmira issued a warrant charging the relator with “ keeping a disorderly house,” which is a misdemeanor, “ punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.” (PenaLCode, § 15.) March 13, 1886, she was arrested by virtue of the warrant and taken before the recorder, whereupon she pleaded not guilty, waived an examination and…

<p>Practica — the grantor must be made a party to an action to set aside a conveyance as fraudulent.</p> <p>This action was brought by the plaintiff, who had been appointed a receiver of the Syracuse Iron Works in a creditors’ action, brought under section 1784 of the Code of Civil Procedure, to aet aside as fraudulent a judgment in favor of the defendant, entered upon an offer made by the Syracuse Iron Company, in an action brought against it by the defendant, and to recover the value of the chattels sold under an execution issued on the said judgment.</p> <p>Held, that a demurrer, interposed upon the ground that there was a defect of parties defendant, because of the non-joinder of the Syracuse Iron Works, should be sustained.</p> <p>The rule is settled that in actions to set aside fraudulent conveyances, the alleged fraudulent grantor is a necessary party defendant.</p> <p>Miller v. Hall (8 J. & S., 262; affirmed, 70 N. Y., 250) followed; The Attorney General v. The Gua/rdian Mutual Life Insurance Company (77 N. Y., 272) distinguished.</p>

This State in 1838, under an act of the legislature passed February 23,1833 (chap. 32), took possession of certain lands for the use and purposes of a waterway or canal, designated in the act as the Chenango canal. .

The court at General Term said: “ This is an appeal from an order refusing plaintiff costs and an extra allowance. The plaintiff presented to defendant a bill for services rendered to or for defendant’s intestate. The claim was rejected. The referee certifies that •the defendant refused to refer the claim under the statute.

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

Prior to 1867 the defendant’s grantor was the owner of certain premises on the north side of White street, in the city of Cohoes. These premises were bounded on the south by White street, and on the west by the lands of the Erie canal, belonging to the State. In 1867 the State built a bridge across the Erie canal, at a point some 240 feet north of White street.

<p>Appeal from a judgment- in favor of the defendant Jacob Leonard, entered upon the trial of this action at the Albany Circuit by the court without a jury.</p>

<p>Landlord and tenant — when the possession of the tenant becomes adverse— Code of Civil Procedure, sec. 373 — after it has become adverse a deed conveying the landlord’s interest is void for champerty.</p> <p>In 1851, one Paul Settle conveyed to his son, Edward, a lot of four acres, which had been leased, in 1795, hy Stephen Yan Rensselaer to Jacob Post for the term of sixteen years at a rent of six pounds per annum. Edward paid the arrears of rent in full up to January, 1860. On March 26, 1860, Edward conveyed the premises, by a quit-claim deed, to one Becker, “subject to the rents and covenants and conditions reserved in the original lease to Jacob Post.’ Becker, on March 29, 1861, conveyed a parcel of said premises by a warranty deed, not mentioning the rent or lease, to the defendant Schoonmaker, who has since been in possession thereof; no rent having been paid hy him, and no demand therefor having Deen made upon him, before February 24,1883, when this action was commenced to recover the possession of the premises. On July 5, 1883, Becker paid to the plaintiff, who had acquired by deed, on February 1, 1882, the interest of the Yan Rensselaers, the rent in arrear upon the whole four acres, hut without the knowledge or consent of the defendant Schoonmaker.</p> <p>Held, that Becker, at the time he gave the warranty deed to Schoonmaker, was a tenant, from year to year, of the Yan Rensselaers.</p> <p>That as he could convey no better title than he held, he conveyed to Schoonmaker a tenancy from year to year, thereby making the possession of Schoonmaker that of the Van Rensselaers until the expiration of his tenancy.</p> <p>That, hy section 373 of the Code of Civil Procedure, the tenancy between the Yan Rensselaers and the defendant continued for twenty years from the time of the last payment of rent, which, in this case, as regarded the defendant Schoonmaker, was made in January, 1860.</p> <p>That at that date Schoonmaker’s holding commenced to he adverse as against the Van Rensselaers, and that the deed from them to the plaintiff was void for champerty.</p> <p>Bembte, that Schoonmaker’s title, though adverse to the Van Rensselaers, would not have been good as against an action of ejectment brought by them.</p> <p>(Learned, P. J., not concurring.)</p>

The action was originally brought in a Justice’s Court to recover the value of a wagon alleged to have been wrongfully seized and sold by the defendant, as a collector, for the non-payment of a school tax.

The action was brought to recover the sum of $5,000, which was claimed to have been fixed as the liquidated damages to be paid by either party failing to perform a contract entered into between the plaintiff’s intestate, Richard Parr, and the defendant village, whereby Parr agreed to flag, pave and curb the west side of a street, in the village of Greenbush, and the defendant agreed to furnish all the sand and gravel and to properly grade the street.

The action was brought upon a certificate of membership in the defendant’s association (an association organized under chapter 175 of 1888 for the purpose of mutual benefit life assurance), issued tc Charles Stephan, which was alleged to have been assigned to the plaintiff, to recover a sum of money claimed to be payable under the beneficiary clause of such certificate.

Chapter 353, Laws of 1882, entitled “An act to create a board of railroad commissioners, and to define and regulate its powers and duties,” provides (sec. 13) that “ the annual total expense of the said board of railroad commissioners * * * shall be borne by the several corporations owning or operating railroads, according to' their means, to be apportioned by .the comptroller and State assessors, who, on or before the first day of July in each year, shall assess upon each…

This action was brought upon a policy of insurance or certificate of membership issued by the defendant, a corporation organized under chapter 175 of the Laws of 1883, upon the life of James IT. Darrow for the sum of $5,000.

<p>Mutual benefit association — suicide is not a violation, or an attempt to violate, a criminal law — duty of a corporation to make an assessment to pay death claims — when a report made to the insu/rance department is admissible in evidence against the association — the person receiving the amwunt need not have an insurable interest in the life of the member.</p> <p>The decision made by this court in the case of Barrow v. Family Fund Society (.supra, p. 245), holding that the suicide of a member of a corporation organized under chapter 175 of 1883, did not come within the meaning of the provision contained in the certificate, that it should he void if the assured should die “ in the violation of, or attempt to violate, any criminal law,” reaffirmed and followed.</p> <p>By a certificate of insurance issued by tbe defendant there was to be paid to the plaintiff, “if living, * * in ninety days after due proof of the death of said member, a sum equal to the amount received from a death assessment, but not to exceed three thousand dollars;” and the fourth condition thereof provided that “the death claim under'this contract shall be payable in ninety days, after satisfactory proof of the death of the said member shall have been furnished,” as therein provided. The defendant objected to the right of the plaintiff to maintain the action to recover this amount upon the ground that the promise to pay was contingent, the beneficiary being restricted to a fund to be procured by an assessment, and that no proof of the existence of such fund was given.</p> <p>Held, that these objections were properly overruled for the following reasons:</p> <p>First That the requirement that payment was to be made in ninety days implied that there was an obligation "on the part of the company to proceed and make the necessary assessment to raise the fund.</p> <p>Second. That as the defendant had the power to make the assessment, it could not resist the payment oí the plaintiff’s claim by omitting to make it.</p> <p>Third. That the furnishing of satisfactory proof of the death of the member to the society, according to the provisions of the certificate issued to him, should be held to be a demand for payment, and impliedly a demand upon the company to procure the necessary funds by an assessment, if that were necessary.</p> <p>Proof that an assessment upon the members liable to contribute to the death fund, would have produced a fund sufficient to pay the plaintiff’s claim, was given by the production of the report of the society made to the State Insurance Department a few days before the member’s death.</p> <p>Held, that an objection by the defendant to its reception, on the ground that it was not the best evidence of these .facts, and that the books of. the company should be produced, was properly overruled, as the report made, as required by law, was of equal dignity and certainty with the records of the society.</p> <p>It was also objected that the plaintiff could not recover, because it was not shown that she had any insurable interest in the life of Darrow.</p> <p>Held, that it was not necessary that she should have any such interest.</p> <p>Massey v. Mutual Belief Society (102 N. Y., 528; affirming 84 Hun, 254) followed.</p>

<p>Summary proceedings io recover possession o" land — when the validity of a lease may be attached in such proceedings, by the defendant, for fraud — when an equitable action to cancel the lease will lie.</p> <p>This action was brought by the plaintiff to have a paper executed by the parties to this action, which purported to change the relation existing between thorn from a tenancy from year to year to a tenancy at will, set aside on the ground that it was procured by fraud, and to restrain the defendant from further proceeding, in certain summary proceedings instituted by him, to remove the plaintiff from the possession of the demised prei&ises. .Upon the trial it appeared that on or before July 5, 1882, the plaintiff Becker was a tenant of the defendant Church; that on that day the plaintiff was induced by fraud to execute a paper purporting to change such tenancy to a tenancy at will; that in May, 1883, Church, after serving a notice to quit, pursuant to the statute to terminate a tenancy at will, instituted summary proceedings to dicpossess Becker, whereupon the latter brought this ' action and recovered therein a judgment, from which this appeal was taken.</p> <p>Held, that the judgment should be affirmed. (Landon, J., dissenting.)</p> <p>It seems, that the question as to whether or not the alleged lease was procured by fraud could have been tried in the summary proceedings. (Per Bookes and Landon, JJ.; Learned, P. J., contra.)</p>

<p>Appeal from a judgment in favor of the plaintiff, entered in • Montgomery county 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>

The complaint states, in substance, that on and after October 1 1885, the plaintiff was a tenant in common with the defendant in some forty or fifty tons of hay, which were then in the possession of plaintiff in the buildings on defendant’s farm; that the defendant subsequently fed up and used up some portion of said hay ; that on or about March 17, 1886, plaintiff asked for a division and for the one-half of the remaining portion of said hay, and “ defendant refused to make…

<p>Evidence — only experts can express an opinion as to genuineness of a signature —1880, chap. 86 — witness — impeachment of, by proof of contn'adictory statements.</p> <p>Upon the trial of this action the plaintiff, who sought to prove that the signature to a certain deed was not the signature of one James Clark, produced a note which was proved to have been signed and indorsed by Clark. A witness, who was not shown to be an expert, was directed to look at the signature and indorsement of the note, and was then asked and allowed, against the defendants’objection and exception, to answer “no” to the following question: “Assuming those to be the genuine signatures of .lames Clark, is that the signature of James Clark on the deed I show you?”</p> <p>Held, that the evidence should have been excluded.</p> <p>The alleged deed of James Clark had been proved, on June 18, 1885, by the subscribing witness, one Lawrence, before a notary public, and was given in evidence with such proof by the defendants. The plaintiff was allowed, against the defendants’ objection and exception, to prove statements made by Lawrence that he did not have anything to do with this transaction of Clark’s; that he did not know Clark at the time, and that he was willing to assist the plaintiff if she would pay his expenses.</p> <p>Held, that even if it could be assumed that Lawrence was to be regarded as a witness produced by the defendants, he could not be impeached, by proof of these statements, until he had first been asked whether he had ever made them.</p> <p>It seems, that this assumption could not be made.</p>

<p>Appeal by the people of tbe State of New York from an order made by Justice Tappan July 12,1886, and entered in St. Lawrence county, discharging the relator from imprisonment.</p> <p>Henry E. Seaver, who claims to be a justice of the peace, convicted the relator, Hiram Sinkler, of the crime of assault in the third degree, and sentenced him to the Onondaga County Penitentiary for the term of four months. After the relator had been confined in the penitentiary for the period of three 'months, his mother, in his behalf, procured a writ of habeas corpus, requiring the superintendent of the penitentiary to produce the relator beforo Justice Tappan, on the 10th of July, 1886, that the cause of hia detention might be inquired into.</p> <p>It appeared that at the annual charter election in the village of Canton, on the 12th of January, 1886, Mr. Seaver received no votes for the office of “justice of the peace,” but did receive 162 votes for “ police justice.” The clerk of the village filed with the county clerk a certificate of Mr. Seaver’s election as “justice of the peace.” Mr. Seaver gave a bond as justice of the peace, which bond was approved by the supervisor of the town of Canton.</p> <p>The act which created the office of justice of the peace of the village of Canton is section 2 of chapter 70 of 1859, as amended by chapter 263 of 1870, which reads as follows: “ The officers of said village shall be five trustees, one of whom shall be designated and elected president; * * * 0ne justice of the peace, with powei's hereinafter mentioned. * * * The trustees, assessors, justice of the peace, treasurer, clerk, collector and constable shall be elected by ballot at the annual meeting in said village for the election of officers, and shall hold their respective offices until the next annual meeting and until their successors are elected and duly qualified. * * * The said justice of the peace shall have the usual powers of justices of the peace of towns, in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.”</p>

<p>Appeal from a judgment dismissing tbe complaint, entered in Montgomery county, upon the trial of thjs action by the court without a jury.</p>

<p>Appeal to the County Court from a justice’s judgment — the right to a new trial is determined, by the amount demanded, in the amended, and not by that ashed for in the onginal pleadings — Code of Civil Procedure, § 8068 — what coxmter-claim cannot be pleaded in an action of tort — when an amount exceeding fifty dollars claimed thereby will not justify a new t/rial on appeal.</p> <p>Upon the appearance of the parties to this action before a justice upon the return of the summons, the plaintiff complained for a wrongful injury done to his horse by the defendant’s horse, and demanded judgment for $200. The defendant having answered by a general denial the case was adjourned to a future day, on which the plaintiff amended his complaint and claimed to recover as damages forty-nine dollars and costs. The defendant interposed an amended answer containing a counter-claim alleging that at the time and place mentioned in the complaint defendant, through the carelessness, recklessness and negligence of plaintiff in driving his, a vicious and unruly, horse ran into and collided with a horse belonging to tlie* defendant, and that the defendant sustained damage in the sum of sixty dollars, for which sum he demanded judgment. The plaintiff having recovered a judgment for forty-nine dollars, with costs, the defendant appealed to the County Court, and in the notice of appeal demanded a new trial.</p> <p>Held, that the County Court erred in denying a motion made by the plaintiff to have the case put on the law calendar for hearing as an appeal on the law.</p> <p>That as the cause of action stated in the complaint admitted of no counter-claim in tort, unless it were alleged to grow out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim, which was not alleged in the answer, that the right to a new trial was to be determined by the amount demanded in the complaint, and not by the amount of the alleged counter-claim set up in the answer.</p> <p>That the question was to be decided by the amount demanded in the amended complaint, and not by that demanded by the first complaint.</p> <p>That even if the counter-claim were admissible it should be held to be either sham, because no evidence was offered to support it, or to be an answer upon which the defendant had voluntarily suffered default. (Landon, J.)</p>

94 costs, entered in Ulster county on the report of a referee dismissing the plaintiff’s complaint.

The action was brought to recover certain goods and chattels sold by the plaintiffs to one Dimmick, and by the latter transferred by a general assignment to the defendant. A portion only of the goods were replevied, and such portion had depreciated in value to the extent of thirty-five dollars and fifty-two cents.

<p>Negligence — when the question of the plaintiff’s contributory negligence should be left to the jury — right of one finding the gates at a railroad crossing open, to assume that it is safe to cross.</p> <p>Upon the trial of this action, brought by the plaintiff to recover damages for the negligent killing of her husband by the defendant, it appeared that on the night of June eighth, at about nine o’clock, when it was “pretty dark,” the deceased, a charcoal peddler, in returning home with a team of horses and his empty wagon, reached a place where the highway crossed the defendant’s three tracks on grade. On the west side of the tracks, from which side the deceased approached, were gates consisting of two white poles (worked by a crank on the north side of the highway west of the tracks), which were usually lowered whea trains were coming, making it impossible to cross the tracks. As the deceased crossed the track he was struck by an engine backing slowly southward, without any light and without ringing any bell or blowing a whistle, and was killed. The gates were up.</p> <p>Evidence was given tending to show that the deceased, just before reaching the track, was standing in his wagon leaning on the forward part and looking up and down to see if there was any train approaching, and other evidence was given tending to show that the defendant’s flagman, who was on the easterly side of the tracks south of the highway, hallooed to the deceased, “stay back.”</p> <p>Held, that it was error to nonsuit the plaintiff; that, taking all the circumstances into account, especially the open gates, the slowness of the engine’s backward motion, the absence of light upon it, the noise which the wagon would naturally make, the question of the negligence of the deceased should have been left to the jury.</p>

The action was brought, under the civil damage act, to recover damages for the death of the plaintiff’s husband, which was alleged to have been caused by liquor sold to him by McLaughlin, a tenant of the defendant Terwilliger.

The action was brought for work claimed to have been performed by the plaintiff in abating an alleged nuisance pursuant to the directions of the board of health of the defendant the village of Schaghticoke.

. Appeal by the defendant from a judgment entered at the Saratoga county Special Term. In 1882 William and Benjamin Van Vranken conveyed to Robert Clements real and personal property, in consideration whereof he assumed and agreed to pay certain indebtedness of the Van Vrankens, and to keep them harmless therefrom. Robert Clements subsequently died, and John Clements was appointed liis- administrator.

Appeal by William Van Dermoor, as executor of Adolph R. Van Dermoor, deceased, from a decree of the Surrogate’s Court of Schenectady county, requiring the executor to pay Nancy E. Van Dermoor, the petitioner herein and the widow of the testator, $1,727.69, the proceeds of a life insurance policy issued upon the life of the testator by the New England Life Insurance Company.

Adam Quackenbush died June 10, 1886, leaving a will by which he gave to his widow, Peggy, her support during life, with a right to occupy part of the homestead, and made it a lien on all his property, real and personal. To Betsey, his only daughter, he gives $200, one year after his decease.

Upon the trial of the defendant, the offense was in great part proven .by his confession, made to one Pinkerton and the district attorney. The admissibility of this evidence was contested by the defendant on the ground that the defendant was induced to make the confession by the promise of the district attorney that he should not be prosecuted. Pinkerton was asked by the defendant’s counsel: Q. What, if anything, did you say to him about being a witness for the people ?

<p>Witness — cross-examination to impeach his character — he cannot he ashed upon what charge he has been wrested.</p> <p>Upon tlie trial of this action, brought to recover damages for an assault and battery alleged to have been committed by the three defendants, one of them, who was called as a witness in behalf of himself and the other defendants, testified on his cross-examination that he had been arrested, hut did not know how many years ago. He was then asked, “What was the charge ?” the plaintiff’s counsel stating that he offered this evidence with reference to the character of the witness. The court, against the objection and exception of the defendants’ counsel, allowed the witness to answer and state what the charge was.</p> <p>Held, that it erred in so doing.</p> <p>People v. Imng (95 N. Y., 541); People v. Orapo (16 N. Y.„ 288) followed; Qonnors v. People (50 N. Y., 240) limited.</p>

The relator, who keeps a saloon in the- city of Albany, applied to the mayor for a license to there furnish, free of charge, to his customers, vocal and instrumental music. He presented a petition, signed by his neighbors, asking that such license be granted, and offered to pay to the mayor the sum of twenty-five dollars, the highest fee fixed by the city ordinance for such licenses.

In the year 1882, and prior to the twenty-eighth day of December of that year, the plaintiff, a national bank located at New Haven, Connecticut, discounted for one Abner C. Wetmore, a resident of Meriden, Connecticut, who carried on business at New Haven, eleven promissory notes, amounting in the aggregate to $5,104.69.

From the year 1836 and up to on or about the year 1850, John Millard and Elijah Millard, his brother, were tenants in common of a certain farm of about 170 acres of land, situate in the town of Berlin, in the county of Rensselaer and State of New York, and on which was and is situate the apple orchard concerning which this action is brought. In or about the year 1850 the said brothers, being tenants in common, made a parol partition of the 170 acres.

<p>Release of premises from the lien of a mortgage — when the court wffl not revive the mortgage in favor of the owner of the premises, as against the widow of the mortgagor claiming dower therein.</p> <p>In 1877 the plaintiff’s husband died, seized in fee of certain premises upon which there was an outstanding mortgage of $12,000, executed by the plaintiff and her husband. The premiseswere sold by the husband’s executor, subject to the mortgage, for the consideration of one dollar. The purchaser thereafter sold to the defendant a portion of the said premises, which had been, prior to the sale, released and discharged from the said $12,000 mortgage, the release stating that it was made ‘ ‘ to the intent that the lands hereby conveyed may be discharged from the said mortgage.”</p> <p>In this action, brought by the plaintiff to recover her dower in the said premises, so sold to the defendent, the defendant claimed that although the $12,000 mortgage had been satisfied as to the premises conveyed to him, the mortgage debt had not been paid, except to the extent of $500; that other mortgages had been executed by the grantees of the husband’s executor in substitution for so much of the original mortgage as could fairly be apportioned to this portion of the whole premises; that this was done simply for the convenience of the new pur. chasers of the several parcels, and that that portion of the $12,000 mortgage ought, in equity, to be revived and reinstated, and that the defendant should be subrogated to the rights of the original mortgagee, and the plaintiff’s claim of dower be limited to the equity of redemption.</p> <p>Held, that regard being had to the nominal price paid for the equity of redemption; to the fact that the widow’s claim for dower was not released at that sale; to the intent expressed in the written release; to the favor extended by the law to the widow’s claim; to the absence of circumstances showing any mistake other than of law, the defendant had not made a case entitling him to z-evive and reinstate against the plaintiff a mortgage in which he never had any interest, and under which he derived no title.</p>

Lawrence county, upon the decision of the court upon a trial before the court without a jury.

<p>Appeal from a judgment in favor of the plaintiff, entered in Ulster county upon the decision of the court after a trial before the court without a jury.</p>

On September 25,1884, the defendants, Cohn and Stein, brought an action and obtained an attachment against the property of Baldwin & Hull, a firm doing business at Granville, Washington county. The sheriff of that county, to whom the attachment was issued, on September 26, 1884, levied upon property then in the store and constituting, as the defendants claim, the stock in trade and fixtures of the attachment debtors.

The plaintiff brought this action as constable of the town of Fulton, Schoharie county, to recover the value of certain personal property which he had levied upon and advertised for sale at public auction, by virtue of two executions issued by a justice of the peace upon two judgments in favor of one Mickle against George G. King; which property the defendant, claiming the same under a chattel mortgage given to him by King, but not filed until after the levy, took and…

The object of the action was to have the will of Francis B. Palmer, so far as it devised and bequeathed property to the defendant, Elmer E. Palmer, declared void, upon the ground that Elmer E. Palmer willfully murdered the testator, in order that he might prevent a revocation of the will, and have the immediate enjoyment of the property.

, - Tbo plaintiff bad fifteen live hogs, and offered to butcher them and sell tbe pork to tbe defendant. The defendant asked if there were any stags, coarse or unmerchantable bogs among them; be said no, they were all a choice first-class lot. The plaintiff agreed to buy tbe pork at seven dollars per hundred. Some time after-wards tbe plaintiff delivered tbe dressed bogs at tbe store of tbe defendant during bis absence.

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

<p>Civil damage ad— what evidence will support a verdict that a suicide resulted from ' intoxication.</p> <p>Upon the trial of this action, brought under the civil damage act to recover damages sustained by reason of the plaintiff’s husband having committed suicide while intoxicated, evidence was given tending to show that after playing cards and drinking in the defendant’s saloon he arrived at home at about twenty minutes to eleven, very much intoxicated; that the plaintiff, after attempting to quiet him, took her baby and went up stairs, leaving her husband below, it not being an unusual thing for him to sleep down stairs. In the morning he was found hanging by the side of the closet door, having evidently committed suicide. The deceased was the father of ten children, the youngest but a few weeks old. He was addicted to strong drink, but made a comfortable living for his family. He had formerly attempted suicide, but whether or not, at the time of making such attempt, he was sober or otherwise did not appear. A paper was found containing the words “give my watch to my boy,” and stating that his brother-in-law owed him fifty-seven dollars.</p> <p>Held, that a verdict finding that the suicide was the result of the intoxication ' would not be set aside by the appellate court.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered in Suffolk county upon the report of a .referee.</p> <p>The action was brought to recover the possession of a lot of upland in the town of East Hampton, Suffolk county. The plaintiff claimed title from the original proprietors, their heirs and assigns, and the defendant claimed title under a quit-claim deed from the trustees of the town of East Hampton.</p> <p>The referee found that the native Indian proprietors of the tract of land, which is now the town of East Hampton, in the year 1648, by deed, conveyed to Theophilus Eaton and Edward Hopkins and their associates the said tract. In 1651, Eaton and Hopkins conveyed the said tract of land to thirty-nine individuals called proprietors. These proprietors obtained a confirmation of their purchase by a patent from Richard Nicholls, Esq., “ Governor General under his Royal Highness, James, Duke of York,” bearing date March 13,1666, recorded in the records for the county of Suffolk.</p> <p>Another patent, dated the 9th day of December, 1686, was issued by Thomas Dongan, “ Captain General, Governor in Chief and Yice Admiral of the Province of New York, and its dependences, under his Majesty, James ye Second, by the Grace of God, of England, Scotland, France and Ireland, King, defender of the-faith,” etc., confirming the former grant or patent of Richard Nicholls, and confirming the title of the proprietors, not only to that portion of the lands purchased by them of the native Indians that had theretofore been allotted and divided between them, but confirming, also, their title to all of such tract or tracts of land of the original Indian purchase that remained common and undivided, to wit, “ and as for and concerning all and every such parcel or parcels, tract or tracts of lands remaining of the granted premises not yet taken up or appropriated to any particular person or persons, by virtue of the before recited deed or patent, to the use, benefit and behoof of such as have been purchasers thereof, and their heirs and assigns, forever, in proportion to their several and respective purchases thereof made as tenants in common,” etc. (See Dongan Patent, recorded in the seeietary’s office, Liber No. 2, Book of Patents, begun 1686.)</p> <p>The said purchasers or proprietors of the land so purchssed of the native Indian proprietors, and allowed and confirmed by patents as aforesaid from the colonial governors, with their heirs and assigns, thereafter made various allotments and divisions between them of such common and undivided lands belonging to them, and used and enjoyed the same, not as public property belonging to the town of East Hampton, or as corporate property, but as property belonging to them individually, as tenants in common, in shares or rights ascertained according to the amount paid by or on behalf of each purchaser. The said purchasers or propriety's paid the consideration for the original conveyance of said tract of land and for the patents, and also the quit-rent.</p> <p>The said proprietors exercised jurisdiction and acts of ownership over such common lands from the date of purchase and confirmation by patent, and from time to time directed and authorized the sale, lease, exchange and use of different parcels of said lands.</p> <p>The original trustees of the town were themselves of the original purchasers or proprietors. They occasionally acted for the proprietors, when authorized and directed so to do, by resolution of. the proprietors at their meetings, with reference to the use of the common and undivided lands, and kept an account with the proprietors.</p> <p>The term “ thirteen acres of commonage ” means one full share. The undivided lands were originally put into forty-seven shares or lots. Each lot or share consisted of “ thirteen acres of commonage,” not in actual size, but that was simply the unit of value. The proportion that each proprietor had in the first division or allotment of land was the basis for all future divisions, and determined the proportion of each proprietor for himself, his heirs or assigns, in all future divisions or allotments of the remaining common lands. These lands were not all divided or allotted at one division. There were many divisions. The proprietors met and determined, from time to time, how many acres of the still undivided land should be allotted, and then the allotment was made' by committees or surveyors,'or other agents of the proprietors, and each proprietor was allotted his share according to his original right or proportion. A few parcels or tracts of such common lands remained unallotted or undivided after the last allotment was made by the proprietors, their heirs and assigns.</p> <p>The premises described in the complaint are a part of such common lands that have never been allotted or divided. Said land in question is wild, uncultivated, unimproved, and until recently uninclosed, and not until recently in the occupation of any particular person. The defendant, before the commencement of this action, took exclusive possession of, and has occupied, and still occupies, the same, to the exclusion of the plaintiff, under a claim of title from the trustees of the town. The plaintiff has demanded possession, which the defendant has refused.</p>

Appeal by the relators from an order made at the Kings county Special Term, denying a motion for a peremptory mandamus commanding the surrogate of Kings county to forthwith make and sign a decree in a matter in which they were interested.

<p>Chattel mortgages — where they should he filed in Kings county — SB. 8. (6th ed.), 143, see. 11; 1 B. 8. (6th ed.), 931.</p> <p>Chattel mortgages upon property in the town of Klafcbush, Kings county, should be filed in the office of the clerk of that town, and not in the office of the register of Kings county.</p>

Gray, deceased. The appellant was surety and joint maker upon a joint and several promissory note for $2,000, an accommodation indorser upon a similar note of $170, and an accommodation indorser upon four joint notes, aggregating $860'. All of these notes were signed by Charles JB. Gray and C. G. Lockwood. All have been paid by the appellant and the notes are now in her possession.

Appeal, from an order made at the Kings county Special Term, confirming the report of a referee as to the distribution of certain surplus moneys arising upon a sale under a decree of foreclosure. In February, 1880, the Rockaway Beach Improvement Company (Limited) was organized under the business corporations’ act (Laws 1875, chap. 611).

<p>Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint made by the court upon the trial of the action at the ICings County Circuit.</p>

Appeal .from a judgment in favor of the defendant, John H. Bird, executor, entered upon the decision of the court at Special Term.

Submission of a controversy upon an agreed statement of facts. The plaintiffs entered into a written agreement with defendant, April 21, 1886, to sell to defendant certain real estate on the southerly side of St. Mark’s avenue, in Brooklyn.

Submission of a controversy upon an agreed statement of facts. The question submitted was whether or not the plaintiff, as the survivor and only acting executor of the last will and testament of Isaac De Mott, deceased, had the power to sell the real estate of one De Mott, and convey a good title thereto. On the 16th day of January, 1877, Isaac De Mott died, leaving a last will' and testament, which contained, among others, the following provisions: “First.

<p>Appeal from a decree of the surrogate of Rockland county, refusing to admit to probate a paper purporting to be the last will and testament of Edwin B. Hunt, deceased.</p>

<p>Appeal from a judgment of the County Court of Dutchess county, entered upon the verdict of a jury in favor of the plaintiffs.</p>

CeRtioeaRI to review tbe action of the respondent in removing the relator from the position of patrolman in the police department of the city of Brooklyn. The charge was misconduct. The specification of the charge alleged that on the 29th day of January, 1886, the relator assaulted one Robert Cullen. The evidence on the trial was conflicting, Cullen claiming that the assault was unjustifiable and the relator alleging that he struck Cullen in self-defense.

The action was brought to compel the defendant to specifically perform a contract for the purchase of certain real estate, to which the plaintiff acquired title through a deed from the sheriff of Kings county, made under and pursuant to a judgment of foreclosure and sale, entered in an action brought in the Supreme Court, Kings county, by William I. Preston against William H. Algie, to foreclose a mortgage for $5,000 on said property, dated October 18, 1884.

The respondent’s intestate leased to the appellant a farm for a term of seven years, but after the appellant had occupied it for a part of that peried he was evicted by the owners of the paramount title. The appellant presented a claim against the lessor’s estate for $1,000 damages for such eviction, which having been disputed was referred by consent, pursuant to the statute, to a referee to determine. The referee found in favor of the appellant six cents damages.

The action was brought by the plaintiff, who claimed to have an estate, as tenant by the curtesy, in property which the defendant used and occupied.

<p>Appeal from a judgment, entered upon the verdict of a jury 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>

The action was brought by the plaintiff to restrain the defendants from removing from his office a stock * ticker ” or reporting instrument maintained and operated by the defendant, the Gold and Stock Telegraph Company, and from doing or failing to do any act which would in any way interfere with the receipt by plaintiff of the quotations of the New York Stock Exchange.

Appeal by the relator from an order entered in Kings county, denying a motion for a peremptory mandamus.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial.</p>

<p>Laying out and opening of a highway— Commissioners of highways will not be compelled to do so, if the public will derive no benefit from it.</p> <p>The dwelling-house and out-buildings of the relator are located about 875 feet northerly of a public highway in the town of East Fishkill, access thereto being obtained by means of a private way across the land of another private owner, and the land of a railroad company. In 1886 proceedings were instituted by the relator to procure a public highway two rods wide from his residence to the old road, and all the steps and measures required by the law were taken for that purpose and the jury certified to'the necessity of the improvement, and the certificate of the jury was delivered to the commissioners of highways of the town, who forthwith filed it with the town clerk.</p> <p>The relator thereupon released all claim for damages to result from the improvement, and agreed to fence the road and indemnify the town against all damages and all expenses of litigation. The highway commissioners having refused to lay out the road, the relator applied for a peremptory writ of mandamus commanding them to do so.</p> <p>Held, that the motion was properly denied, as it appeared that the road, if laid out and opened, would be beneficial to the relator only and not to the general public, while the burden of its construction and maintenance would be imposed upon the town.</p>

The action was brought to foreclose a mechanics’ lien upon land in Matteawan, in the county of Dutchess, N. Y. The plaintiff and the defendant Curtis entered into a contract by which the plaintiff was to furnish materials and do the carpenter-work in building a house on land described in the complaint for $850.40, to be paid when the building was completed. The building was completed on the 18th of June, 1886, and accepted by the defendant Curtis.

<p>Deed — when one executed by an attorney, “Francis Meriam, attorney, by Eliza Meriam,” will be held to pass the title of Eliza Meriam, the principal.</p> <p>A deed "began: “This indenture, made the ninth day of June, one thousand eight hundred and seventy-four, between Eliza Meriam of * * * by Francis Meriam, her attorney, under and by virtue of a certain power.” The attestation clause was as follows : “ In witness whereof the said party of the first part by her attorney has hereunto set her hand and seal the day and year first above written.” It was signed “ Francis Meriam, attorney, by Eliza Meriam.”</p> <p>Held, that as the instrument showed, by its terms, that it was the deed of Eliza Meriam who was the owner of the fee, it conveyed a good title.</p> <p>Wilks v. Back (2 East., 143) followed; Townsend v. Corning (23 Wend., 435) and Spencer v. Field (10 id., 88) distinguished.</p>

<p>Letters of administration — when they may he granted without issuing a citation to non-residents — Code of Civil Procedure, sea. 2662.</p> <p>Lydia C. Libbey, a resident of the city of Brooklyn, died there intestate, leaving a daughter,. Emma, who then resided in that city, and a husband, who resided in the State of Maine. The daughter presented a petition to the surrogate praying that letters of administration upon her mother’s estate might be issued to her. A few days thereafter the husband presented a similar petition asking that letters be issued to him. The surrogate granted letters to the daughter.</p> <p>Held, that as it appeared that the husband was a non-resident the surrogate was authorized, by section 2662 of the Code of Civil Procedure, to grant the letters to the daughter on the presentation of her petition, without issuing any citation to the husband.</p> <p>That he could exercise this power as well after as before the filing of the petition of the husband.</p> <p>That the non-residence of the husband was decisively established by the fact that he voted regularly in the State of Maine, where he owned a small place and was accustomed to pass most of his time.</p>

The suit is for damages caused by a collision in the East river, which occurred in October, 1883, between the plaintiffs’ sloop and the defendant’s lighter. Both vessels were beating up the East river, with the wind nearly dead ahead, and with a flood tide. The sloop was the faster vessel. Both tacked on the Brooklyn shore, the lighter about abreast of Gold street and the sloop about abreast of Pearl street.

09, balance due for the rent of a furnished hotel at Coney Island, leased by John McDonald, the plaintiff’s testator, to the firm of Carpenter & Wise. In consideration of the letting of the premises, the defendants agreed in writing with the lessors to pay any arrearages of rent.

<p>Appeal from a judgment of tbe New York Special Term, dismissing the plaintiff’s complaint, with costs.</p>

<p>Appeal from a judgment of the New York Special Term dismissing the plaintiff’s complaint.</p>

<p>Bond of a marshal of the city of New York — a party aggrieved cannot, under an order of a justice of the Court of Common Pleas, prosecute it in the Supreme Court— 1862, chap. 484.</p> <p>An order permitting a person aggrieved by any official misconduct on tbe part of any marshal of the city of New York to prosecute the bond which the marshal is required, by chapter 484 of 1862, to give to the mayor, aldermen and commonalty of the city of New York, can only be made by a justice of the Court of Common Pleas, as is prescribed in section 7 of the said act, and his jurisdiction being a special and limited one, is restricted to the form of order prescribed by that act.</p> <p>An order granting leave to prosecute the bond, in the name of the plaintiff, in the Supreme Court, instead of directing it to be prosecuted in one of the district courts of the city of New York, or in the Marine Court of that city, is not authorized by the act and cannot be sustained.</p>

In March, 1883, contracts were entered into between the plaintiff and the defendant in each of the above entitled actions, which are identically the same. By this contract the Tonawanda company agreed: “ First.

<p>Place of trial of an action to set aside as fraudulent a general assignment covering real estate — the right to demand a change of venue cannot be defeated by an offer by the plaintiff to stipulate not to attempt to reach the real estate.</p> <p>A motion to change the place of trial of an action, brought to set aside an assignment for the benefit of creditors on the ground that it was made to hinder, delay and defraud the assignors’ creditors, to the county in which certain real estate passing under the assignment is situated, cannot be defeated by an offer on the part of the plaintiff to stipulate that he will not attempt to reach the real estate of the assignors, assigned to the assignee, or mate any claim of title or interest therein or thereto.</p> <p>AcJcer v. Leland (96 N. Y., 381) followed.</p>

<p>Infant — when allowed to avoid a transfer of stock belonging to herr, and beati'ing her signature — extra allowance — the court cannot presume bank stock to be worth more than its par value.</p> <p>This action was brought to recover the amount secured to be paid by a promissory note given by the defendant Redfield, and to have sixteeen shares of bank stock, alleged to have been assigned as collateral security for the note, sold, and the proceeds applied to the payment of the note. The stock did not belong to Redfield, but belonged to the defendant Baker, for whom Redfield acted as guardian. While the defendant Baker was under the age of twentj'-one years, and in or about the year 1872, she, at the request of Redfield, wrote her name upon the back of the certificate, without being told for what purpose he desired her signature and without any arrangement that the shares should be transferred to him, or that he should be at liberty to sell or dispose of them. Under her name, as she had written it, her own name was again written by Redfield as her attorney.</p> <p>Meld, that as there was no intention on her part to supply Redfield with the evidence of the ownership of these shares, she was not estopped from disputing the validity of the title acquired by the plaintiff.</p> <p>That even if the shares had been received by the assignor of the plaintiff, or the plaintiff himself, in reliance upon the signature of the ward, she would not be legally bound, as she was an infant at the time, and the law would, in the absence of any actual representation concerning her signature or her age, permit her to avoid its effect on the ground of her infancy.</p> <p>The shares were for the sum of twenty-five dollars each, and no evidence was given that they exceeded in value that amount. The judgment of the court below denied the right of the plaintiff to appropriate this stock to the payment of his debt, and granted an extra allowance of eighty dollars to the defendant Baker.</p> <p>Meld, that the court could not presume the shares to be worth more than their par value, and that the allowance should be reduced to twenty dollars.</p>

Appeals by the plaintiff, and by the defendants above named, from parts of a judgment entered on the rejiort of a referee.

<p>Evidence — admissibility of the testimony of counsel as to communications had with a deceased person whose will he drew — Code of Oivil Procedure, secs. 835, 836.</p> <p>Upon a hearing in a Surrogate’s Court of an application for the probate of a ■ will, which was resisted on the ground of undue influence, the counsel of the testatrix, by whom the will and codicils were prepared under her direction, and who superintended, as such counsel, their execution and publication, was called as a witness to show what transpired between the testatrix and himself, when he was called upon to prepare the will and codicils, in the process of their preparation and publication.</p> <p>Held, that an objection to his testimony, as inadmissible under sections 835 and 836 of the Code of Civil Procedure, was properly overruled as without merit. That if this were not so it should not defeat the probate of the will in this case, because, even if the testimony of the counsel, so far as objected to, were eliminated from the ease, there would still be evidence remaining which would not justify a finding that the will and codicils were made by the decedent under what the law recognizes to be undue influence.</p>

<p>Action against sureties upon a general guardian’s bond — as to whether it should be brought in the name of the infant or of the gua/rdian — when an action will lie against the sureties on the bond before an accounting has been had by the guardian.</p> <p>This action was brought by the plaintiff, as general guardian of the estate of an infant, against the sureties, upon a bond given by a former guardian of the same infant, upon his appointment by the Surrogate’s Court. Upon the trial the defendants objected to the maintenance of the action by the plaintiff, upon the ground that it should have been brought in the name of the infant, by the plaintiff as her guardian.</p> <p>Held, that in view of the conflict of authority, as to the right of the plaintiff to maintain the action as general guardian of the infant, the court would hold that the suit was properly brought, but would allow the plaintiff, if he so elected, to change the title so as to make the action one by the infant, by the plaintiff as his general guardian.</p> <p>The guardian, who was the principal in the bond, died on October 23, 1884, intestate, the public administrator of the city of New York being appointed to administer upon his estate. He found no assets, except six dollars and forty cents and an old desk containing a quantity of stationery and papers, and none of the assets belonging to the infant. On January 3,1884, the guardian had filed his sworn account with the surrogate, showing $12,137.40 to be then in his hands; and it was proved that, in September, 1884, he converted twenty-five shares of the Mercantile Trust Company stock, valued in his inventory at $3,500, by transferring it from himself, as guardian, to himself as an individual, and thereafter selling it.</p> <p>Held, that an objection that the action would not lie against the defendants, as sureties, without an accounting before the surrogate was properly overruled.</p> <p>That, although an accounting is one of the conditions of the bond, for a breach of which the sureties are liable, yet it is not the only condition, the primary condition being that the guardian “will, in all things, faithfully discharge the trust reposed in him,” the breach of which condition, in this case, justified the bringing of the action.</p> <p>That, while the courts will require an accounting by the guardian, when that will be necessary or availing to establish the extent of the sureties’ liabilities, and when it is practicable to have one, yet, where it is a proceeding of no use or advantage to the sureties, and can only result in subjecting them to the burden of a double litigation, it will not be required.</p>

<p>Appeal from an order of the Special Term denying a motion to confirm the report of a referee and for an order for judgment thereon, for the plaintiff, in an action for divorce.</p>

<p>General assignment —firm creditors may be, preferred to individual creditors — the surimvng partner may malee a general assignment — debts contracted by a surviving partner a/re Ids individual debts.</p> <p>This action was brought by the plaintiff, as a judment creditor of the defendant Brooks, to set aside, as fraudulent, a general assignment made on March 3, 1884, by the defendant Brooks as the surviving partner of a firm composed of himself and one Edward Brooks, who died in September, 1883. The assignment, which contained preferences, included so much of the partnership stock as still remained undisposed of arid such further goods as the assignor himself had purchased and added to the stock, during this intervening period, which still remained unsold.</p> <p>Held, that an objection to the validity of the assignment, on the ground that the assignor could not devote his own individual property to the payment of debts owing by the firm, of which he had been a member, could not be sustained</p> <p>Kirby v. Schoonmaker (3 Barb. Chy., 46;; Eurlberi v. Kean ( 3 Abb. Ct. of App., 439) followed.</p> <p>That the assignor, as surviving partner of the firm, had authority to make it and to include therein the property of the preceding firm.</p> <p>EmersonY. Senter (118 U. S., 3); Williams Y.lVhedon{39 Hun, 98) followed.</p> <p>After providing for the payment of the preferred debts, the assignor directed that the assignee should pay and discharge the other debts owing by the firm of John I. Brooks & Co., or against the assignor, as the survivor thereof.</p> <p>Held, that an objection that the assignment did not provide for the payment of the individual debts of the assignor, was not well founded, as, whatever debts were contracted by him since the dissolution of the firm were his individual debts, and describing himself as the survivor of the firm did not change their character or affect his liability upon them.</p> <p>O'Neil v. Salmon (25 How., 346); Crook v. Bindsleopf (34 Hun, 457); and Oollomb v. Caldwell (16 N. Y., 484) distinguished.</p>

<p>Appeal from ail interlocutory judgment, entered upon tlie trial of this action before a referee.</p>

<p>Contempt of court— actual loss or injury must be proved, to support afine to indemnify the party injured., imposed under section 2281 of the Code of Civil Procedure — when afine imposed under section 2281 cannot be changed on appeal to a fine for punishment — proper order to be entered in such cases.</p> <p>Upon the failure of the defendant to appear and answer, as he was required to do by an order made in supplementary proceedings, he was adjudged to be in contempt, and fined the sum of $834.68, the amount of the judgment, and ten dollars costs.</p> <p>Held, that as it was not proved that the plaintiff had sustained actual loss or injury, or had been deprived by the misconduct of the defendant of the amount of his judgment, there was no foundation for imposing this fine.</p> <p>That although the court had power to impose, in addition to the fine for indemnity, a further fine by way of punishment, not exceeding the sum of $250 and costs and expenses, yet, as it had not exercised this power in this case, the appellate court could not reduce the fine to the amount, or any portion of the amount which might have been prescribed by way of punishment.</p> <p>Erie Railway v. Ramsey (45 N. Y., 637), and DeJonge v. Brenneman (23 Hun, 832) distinguished.</p> <p>That the court should have fined the defendant, by way of punishment, in a sum not exceeding $250, in addition to the plaintiff’s costs and expenses, and have directed his imprisonment until he should appear and submit to an examination concerning his property, and pay the fine with the costs imposed upon him.</p>

<p>Cashier of a ’bank — he may employ an attorney to collect a claim without any resolution of the boa/rd of directors, although that boa/rd has appointed an attorney and counsel to attend to its legal affairs.</p> <p>Upon the trial of this action brought to recover, from the receiver of the "Wall Street Bank, a sum claimed to be due for services rendered by the plaintiffs, as counsellors-at-law, it appeared that the cashier of the bank had, without any resolution of the board of directors, and without the knowledge of any of the officers of the bank, retained the plaintiffs to collect certain claims, and that the plaintiffs, under this retainer, rendered services and made disbursements; that in many matters they acted under the direction of th^ general counsel of the bank, who, it appeared, were to some extent authorized to control the movements of the plaintiffs, and who ultimately took upon themselves the management of these claims as well as of the other affairs of the bank.</p> <p>Held, that the act was within the scope of the general authority of the cashier, and that he was authorized, without any formal vote of the board of directors, to employ attorneys to collect the claim. (Per Brady and Daniels, JJ.; Davis, P. J., dissenting,upon tbe ground that where the bank has its duly authorized attorney and counsel, appointed by the board of directors, to take charge of its land, business and affairs, the cashier has no general authority which empowers him to retain other attorneys or counsel for the bank at his discretion or pleasure.)</p>

, plaintiffs, and Lewis C. Hake et al., defendants. On the 3 5tli of November, 1883, Lewis C. Hake and Joseph A. Hake made a general assignment for the benefit of creditors to William H. Zeltner. In tbe month of February, 1885, the above-mentioned Isaac Bierman et al., creditors of these assignors, brought an action in this court against the surviving assignor and the assignee Zeltner for' an accounting. The assignee only answered.

<p>láen of an attorney upon moneys collected under a judgment— when he may retain therefrom the amount due to him for services rendered in other proceedings.</p> <p>Upon an appeal from an order directing a reference to take proof and report how much of a sum of $9,818.35 an attorney was entitled to retain as compensation for his services in an action, it appeared that the action in which the money was collected was prosecuted under an agreement entered into between himself and the- plaintiff, by which the latter agreed, in lieu of paying fees, that the attorney should prosecute that and other suits for one-fourth of the net amounts which should be recovered on the judgments. In addition to the one-fourth which he was by the agreement entitled to retain, the attorney claimed to retain the residue upon the ground that he had been employed in other legal proceedings, and had rendered services and made disbursements in them for the plaintiff, and also that the plaintiff had violated his agreement with the attorney concerning legal proceedings in other actions covered by the agreement, and thereby rendered himself liable for the damages which the attorney had sustained.</p> <p>Held, that the attorney had no right to reserve or retain the said moneys to secure the payment of any damages arising out of- the failure of the plaintiff to perform his contract, but that he was entitled to retain the amount due to him for the services performed and the disbursements made in the legal proceedings for which he had not already been compensated.</p> <p>Williams v. Ingersoll (89 N. Y., 508) distinguished.</p>

<p>Appeal from a judgment, recovered at a Special Term dismissing the plaintiff’s complaint.</p>

<p>Undertaking to secure a return of chattels —form of — Code of Civil Procedure, secs. 1698 .and 1704.</p> <p>Under an attachment, issued in this action brought to recover the possession of a laTge number of articles, the sheriff took possession of a part or all of the articles. The defendant, to entitle himself to require a return of so much of the property as had been seized by the sheriff, presented an undertaking, executed by himself and two sureties, in a sum double the actual value of all the property, as it was stated in the affidavit made by the plaintiff, which recited that the plaintiff had caused a part only of the property to be replevied, and that the defendant, executing or giving the undertaking, required a return to him of the part of the chattels so replevied.</p> <p>Meld, that although this recital should not have been inserted in the undertaking the plaintiff was not prejudiced thereby, as it did not, in any way, qualify or diminish the liability of the persons executing it to respond for the value of all the chattels, the return of which might be secured by means of the undertaking.</p>

<p>Appeal from an order of the Special Term, directing judgment for tbe respondents on the hearing upon the return to a certiorari.</p>

<p>What proof of the publication of a will will justify the submission of the question to the jury — no formal statement is necessa/ry.</p> <p>Mr. Finigan, having been informed by one Sheridan that Mr. John Jones wished to have him draw his will, called upon Jones and it was agreed that the will should be drawn and executed at seven o’clock in the evening of that day, at which time the witnesses were to be present. On that evening Finigan, Jones, Furlong and Sheridan met, and the will was then drawn from instructions given by Jones and in his presence, and read to him by Finigan, He said it was correct, but would rather have Sheridan read it over to him, which Sheridan then did carefully and slowly. Jones then signed the will, and Finigan said “ I will sign it as a witness, and then Mr. Sheridan.” to which he answered, “All right; ” and when Farley signed it he said, “ Put your residence there ; don’t forget that.”</p> <p>Held, in an action of ejectment involving the validity of the defendants’ title, acquired under such will, that the court erred in refusing to admit the will in evidence, upon the ground that there was not sufficient evidence of its due execution; that the question as to its due execution should have been submitted to the jury.</p>

Joint appeal by both defendants, from a judgment entered in favor of the plaintiff upon the findings and opinion- of Mr. Justice Barrett, after a trial had at the New York circuit without a 'jury- This action was brought to recover damages to the property of the plaintiff’s testatrix, alleged to have been occasioned by the acts of the defendants.

<p>Appeal from a judgment entered on the report of a referee.</p>

Writ of certiorari to review tbe legality of an assessment made against the relator for the personal estate of the testator, amounting to the sum of $375,000.

<p>Appeal from a judgment dismissing the plaintiff’s complaint on a trial at the New York circuit.</p>

Appeal by tbc defendant Annie It. Platt from two orders made on the 29th of May, 1886, denying an application for an order directing the referee to take proof of any liens that might be presented to him, and from an order directing the referee to take proof of judgments, and from an order confirming the report of the referee of the distribution of the proceeds of lands sold in three actions of partition.

<p>Submission of a case upon agreed facts— Qode of Omil Procedure, sec. 1279 — power of the court to amend the agreement as to the relief to be granted — when the power will not be exercised.</p> <p>A case having been agreed upon and submitted to the court, under the authority of section 1279 of’the Code of Civil Procedure, a judgment was ordered in favor of the plaintiff for the recovery of damages because of the unlawful interference of the defendants with the plaintiff’s property, consisting of a bulk-head and wharf fronting upon the Hudson river, pursuant to a provision in the agreement defining the relief to which the plaintiff would be entitled if successful. After this decision had been made, and the judgment had been entered upon it, it was stated that the Court of Appeals had decided that the owners of the wharf were entitled to the structure erected in front of it by the city, thereby extending their water front so much further into the river.</p> <p>Held, that a motion, made by the plaintiff to amend the claim for relief in the case submitted, so as to secure to him the benefits of this decision by awarding to him the possession of the additional structure itself, instead of damages for the act of the defendants, should be denied, as it would not be a provident use to make of any power which the court might possess, to grant such amendments, to interfere with and change this part of the agreement, after the case itself had been heard and decided, and the rights and obligations of the parties had been declared and defined by the judgment which has been entered. ^</p> <p>It seems, that the court had no authority to change that part of the agreement made by the parties, as to the relief which should be awarded to the plaintiff, in case it should be held that he was entitled to recover. {Per Daniels and Brady, .1J.)</p>

<p>Appeal from an order directing a reference and denying an application for a settlement of a case and exceptions, and the making of findings of fact and law, and also a motion by the respondent to dismiss the appeals.</p>

Appeal by Phoebe F. Fullerton, testamentary guardian, from an order confirming the report of. a referee and removing her from her guardianship of Annie C. King and others.

<p>Evidence — the rule excluding oral evidence, tending to vary the terms of a written agreement, does not apply to one who is a stranger to it.</p> <p>This action was brought to recover the amount due to the plaintiffs for labor and materials furnished by them, as plumbers, in erecting eighteen houses upon property belonging to the defendant. The plaintiffs commenced to work under a written agreement made between them and one Birdsall, who was to perform the work. Birdsall having died, after about one-third of the work was done, the defendant took charge of it and directed the plaintiffs to proceed with its performance.</p> <p>The defendant, in his answer, stated that he assumed Birdsall’s obligations and rights under the agreement, but that the quantity, style, finish, workmanship, quality and all other matters pertaining to the plumbing and gas-fitting were embodied in written specifications and plans which were submitted to and examined by the plaintiffs and formed the basis of the agreement with Birdsall.</p> <p>Upon the trial the defendant undertook to show the contents of these written specifications by the cross-examination of the plaintiffs, but was not permitted to do so upon the ground that as the specifications were not referred to in the written agreement, such evidence was inadmissible.</p> <p>Held, that the referee erred in so ruling.</p> <p>That as the defendant was a stranger to the agreement, the rule excluding oral evidence to add to, enlarge or restrict a written instrument did not apply.</p>

<p>Commissioners of excise in the city of New York — may he appointed hy the mayor without confirmation hy the hoard of aldermen— 1884, chap. 43.</p> <p>Under the authority confered upon the mayor of the city of New York by chapter 43 of 1884, which directs that “all appointments to office in the city of New York, now made hy the mayor and confirmed by the hoard of aider-men, shall hereafter he made hy the mayor without such confirmation,” the mayor is authorized to appoint commissioners of excise, and no confirmation of such appointment hy the hoard of aldermen is now required.</p>

<p>Appeal from an order overruling an exception to the report of a referee, and affirming his report.</p>

Motion, on the part of the corporation above named, for the appointment of three commissioners to determine whether it should be allowed to build its railroad.

<p>Appeal from an order, made at a Special Term, denying a motion for a temporary injunction.</p>

<p>Appeal from a judgment overruling a demurrer interposed to the second defense set up in the defendant’s answer.</p>

The action was to obtain a construction of certain portions of an agreement made between the plaintiff, the widow of one Isaac John Greenwood, and his children.

<p>Action to reach the surplus income of a trust fund — the habits and ability of the cestui que trust are to be considered in determining the amount to be allowed to him for his maintenance — the plaintiff must prove that there is a surplus.</p> <p>Where a judgment creditor seeks to compel so much of the income of a ■ cestui que trust, as exceeds what is necessary for his suitable support and maintenance, to he applied to the payment of his debt, the court in determining what is a proper amount to be allowed for the expenditures of the cestui que trust, will consider the manner in which he has been brought up, the habits acquired by him, and his ability to take care of his property.</p> <p>To entitle the plaintiff to succeed in such an action he must prove that there is a surplus of income, and where he fails so to do his complaint will be dismissed.</p>

<p>Appeal from an order denying a motion for a reference to take proof of title.</p>

<p>Inspection of hooks and papers — an order compelling their production will not he granted unless it is needed to enable the pa/rty to present his own case.</p> <p>This action, brought to recover the amount found to be due to the plaintiff from the defendants on a settlement of the accounts of the parties, was defended upon the ground that the settlement was obtained by fraud, duress and coercion, and the defendants asked that it be set aside.</p> <p>Upon an appeal from an order granting an application made by the plaintiff for a discovery and inspection of certain books and papers, the defendants claimed that the only question to be tried was whether the defendants gave up certain securities and signed the agreement through fear, duress and fraud practiced on the part of the plaintiff.</p> <p>Held, that as an examination of the pleading, taken in connection with the declaration of the defendants’ counsel, made in open court upon the submission of the appeal herein, showed that the plaintiff’s claim was proved prima facie, and that as it was not necessary for the presentation of his case in the first instance that the plaintiff should be permitted to make any examination, the order should be reversed.</p>

<p>Practice — enforcement of a direction in an order requiring costs or money to be paid to any person — the remedy is by execution and not by attachment — Oode of Oiml Procedure, sec. 779.</p> <p>The defendant’s attorney having refused to pay over money received by him as the costs of opposing a motion for a new trial, after he had been duly served with a copy of an order of an appellate court, deciding that the costs should not have been allowed to him, and ordering him to pay the money to the plaintiff or his attorney, a motion was made that an attachment issue against him, to punish him for his failure to comply -with the order.</p> <p>Held, that the plaintiff had mistaken his remedy; that he should have proceeded, under section 779 of the Oode of Civil Procedure, which provides that, if any sum of money, directed by an order to be paid, is not paid within the time fixed for that purnose by the order; or, if no time is so fixed, within ten days after the service of a copy of the order, an. execution against the personal property only of the party required to pay over the money may be-issued by any party or person to whom the money-is made payable by the order.</p>