Volume 50 — Howard's Practice Reports

<p> Appeal from, an order after judgment. </p> <p>Where an answer has keen stricken out as frivolous and judgment entered, no appeal can he taken from the order striking out the answer if there is no appeal from the judgment.</p>

Motion on the part of the defendants to remove William S. Carman from the office of receiver of the bank Mr. Fitch, for sundry depositors making the motion. Algernon S. Sullivan, for other depositors who unite in the application. James S. Stearns, for still other depositors, who also ask the removal of the receiver.

<p> Bervice of a summons on a sheriff—sufficiency of. </p> <p>The service of a summons upon a sheriff, in an action against him, must be made personally upon the sheriff.</p> <p>The service of a summons upon the sheriff by delivering a copy thereof to the under sheriff, in the office of the sheriff, the sheriff at the time being absent therefrom, in pursuance of the Revised Statutes providing that every notice or other paper which shall be required to be served on any sheriff, may be served by leaving the same at the office designated by him in his notice filed in' the county clerk’s office, during office hours, is not a sufficient service of such summons.</p> <p>Even if these provisions of the Revised Statutes could be construed to embrace the service of notice's or papers by which an action might be commenced against the sheriff, they are repealed by the Code, sections 488, 137 and 184.</p>

<p>Motion to set aside verdict for reasons which appear in. the opinion.</p>

Motion on the part of defendant to strike out the costs, as taxed on behalf of plaintiff, from the judgment entered in favor of plaintiff for thirty dollars damages upon the assessment by a sheriff’s jury. This action was commenced in a justice’s court for trespass quare clausum fregit.

<p> When fixtures in a building pass by sale of it. </p> <p>The question of articles being fixtures is now, not whether they may be. removed without great injury to the building or to themselves, but depends upon the intention of their annexation.</p> <p>Where a building was constructed for a twine factory, and the machinery adapted to that business was put into it for permanent use by the owner, who subsequently conveyed the premises by a deed without any particular reference to the machinery there, and took back from the grantee a mortgage for a part of the purchase-money, and after these writings were closed the question arose as to whether the machinery passed by the deed, to settle which the grantor gave to the grantee a separate bill of sale thereof, without taking back any other security than his purchase-money mortgage, and the question having subsequently arisen whether this mortgage covered the machinery and was a lien thereon in preference to a levy under executions against the grantee and owner by creditors:</p> <p>Held, 1st. As this property was actually annexed to the freehold; 2d. As the building was specially constructed for a twine factory and the machinery adapted to it; 3d. As the intent of annexation was to make it a part of the realty; 4th. As the parties to the mortgage intended that the mortgage should cover it, not as chattels but a part of the realty, and, 5th. As the mortgage is in part for the purchase-money of the very articles, it is determined that the plaintiff is entitled to the relief asked in his complaint.</p>

<p>Action by the receiver of a mining corporation—property out of the state — jurisdiction.</p> <p>Where the property of a mining corporation organized in this state, whose entire property consists of real estate situated in another state or territory, the title to such property does not vest in a receiver of the corporation appointed here; he has no jurisdiction over it.</p> <p>The creditors of such corporation might resort for relief to the courts where the property is situated, or the corporation itself could proceed to use or dispose of the property entirely unaffected by the appointment of a receiver here.</p> <p>A proceeding in invitum can have no force outside the jurisdiction where the proceeding is initiated.</p>

<p> Motion for a new trial on the ground of newly discovered evidence. </p> <p>When the alleged new evidence is of the same character as that offered upon the former trial it is cumulative; but when it tends to prove a new fact bearing upon the issue made by the pleadings it is not. It must, of course, be important in its bearing upon the question in dispute, otherwise the new trial should not be granted.</p> <p>It must also appear that by no diligence which could be required of a party could the new evidence have been discovered previous to the former trial.</p> <p>If it appears that the proposed evidence is of a highly important character and bears directly upon the very issue in the cause, notwithstanding, a new trial will not be granted if such evidence is to be given by a witness not entitled to credit, or is not so supported by other facts and circumstances as would justify a jury in believing the story of the principal deponent.</p> <p>Where it appeared that the proposed witness on the new trial would testify that in May, 1871, he forged and wrote, at the request of the plaintiff, the name of John R. Cole (the testator) upon the note in suit, and made recently for this motion affidavit of that fact; and it also appeared that this proposed witness at the time he alleged he forged this note, in May, 1871, was an inmate of the state prison at Sing Sing, having been sentenced there for eight years for the crime of forgery; and it further appeared that since the year 1852, over twenty years, he had been almost a constant resident of state prisons for the crime of forgery, and was at this time (July, 1875) confined in the state penitentiary of Pennsylvania under a sentence for nine years and six months for the crime of forgery; and the corroborating facts and circumstances to uphold this proposed testimony being insufficient to give it any legitimate support:</p> <p>Held, that no rule of law and no principle of judicial fairness would justify the court in overturning a verdict fully sustained by credible testimony in order to submit to another jury the question whether they would not believe what must, on a trial, be the unsustained evidence of a professional forger of over twenty years’ standing, than that of reputable witnesses.</p> <p>Where a person having been in state’s prison for a crime has been restored to his rights as a citizen in this state by the act of the ehief executive thereof, his conviction in another state would not, probably, render his evidence here inadmissible.</p>

<p> Power of the city of Buffalo, under its charter, to take lands of railroad corpora^ Hons for a canal. </p> <p>The city of Buffalo is empowered by its charter (section 1, tit. 8) “ to take lands for public buildings, for parks, public grounds, squares, streets, alleys, fountains, canals, basins, slips and other public waters; and for any other corporate purpose or object.” This power as to the lands to be taken is without limitation. It is, in'terms, sufficiently comprehensive to embrace any and all lands within the city.</p> <p>It is well settled that the legislature, in the exercise of the right of eminent domain, may appropriate or authorize the appropriation, upon payment of a full equivalent, of any lands, property or rights, although they may have been already taken and are held for another public use of a different nature.</p> <p>The charter of the city of Buffalo does not grant the power, in express terms, to take the lands of a railroad company or any other property already appropriated to public use.</p> <p>But in laying out, constructing or improving a street, canal or sewer, or laying down gas or water pipes, or for any other corporate purpose, the city finds it necessary to enter upon and take some part of the land or property of a railroad company, it is by necessary implication clothed with the requisite power to accomplish the purpose.</p> <p>Where, therefore, the city of Buffalo has determined, in the manner provided by law (the appointment of commissioners), to take the lands necessary to extend the Main and Hamburgh Street canal from its present easterly terminus to the Buffalo river, a distance of nearly two miles, and which will intersect the tracks of three different railroad companies, hut in such a manner as not essentially to impair or diminish the usefulness or convenience of their tracks, or injure the business of the companies as carried on over their present lines of traffic, it takes the lands which it acquires by such proceedings for the public use, and the fee with which it becomes vested is simply that of a trustee holding for such use. The taking creates no private or exclusive right or property in the city corporation as against the public.</p>

<p> Construction of a will. </p> <p>This action was brought for the construction of the will of the testator, John 0. Lloyd. The fourth clause of the will, which is the principal one considered, reads as follows:</p> <p>“ Fourth. I give and bequeath to my wife, Jane Lloyd, the interest, income and profit of thirty thousand ($80,000) dollars during her natural life, payable semi-annually, the principal to be invested by my executors according to the best of then understanding. After the death of Jane the principal to be divided as follows,.viz.: to my brother Alexander C. Lloyd, and my sisters Eliza Howe and Margaret Robinson, five thousand ($5,000) each —the balance to be equally divided in equal proportions between my nephews and nieces, children of my late brother James Lloyd, and my brother Alexander C. Lloyd and also my sisters Eliza Howe and Margaret Robinson that may be living at the death of my wife Jane Lloyd.”</p> <p>The question to be determined was: When did the ownership of the principal sum of $5,000, bequeathed to his brother and each of his sisters, vest, immediately or upon the death of the widow ? If immediately, the shares of the legatees who died before the widow would not go to the survivors; if it did not vest until, the death of the widow, then the survivors would take.</p> <p>Held, that the intention of the testator was that the ownership should vest immediately—and this intention, was gathered from other parts of the will as well as from the fourth clause, where it very satisfactorily appeared by the direction, that “ after the death of Jane the principal to be divided as follows:"—to his brother and two sisters each $5,000. When in the disposition of the balance of the $80,000, the direction was that it be equally divided between the nephews and nieces, children of his brothers and sisters “ that may he living at the death of my wife, Jane Lloyd.”</p> <p>This construction results as follows: First. Margaret Lloyd as the devisee of her husband is entitled to the sum of $5,000, bequeathed to such husband Alexander C-Lloyd Second. The defendant Eliza Howe is entitled to the sum of $5,000, specifically bequeathed to her. Third. Margaret Robinson having died childless and intestate before the widow and leaving a husband, the $5,000 bequeathed to her goes to such husband. Fourth. The remainder of the $30,000 is to be distributed and divided equally among the children of James Lloyd (the plaintiffs Alexander Lloyd and Daniel Lloyd) and his sister Eliza Howe. They being the only parties to whom this bequest was made who were living at the time of the death of Jane Lloyd; and among such only as were then living could the distribution be made. Each of these parties, the two nephews and the sister, take an equal one-third part thereof, as the division is to be “ in equal proportions.” *</p> <p>The seventh clause of the will is identical in its terms with the fourth clause. It sets apart $10,000 to be invested by the executors, who are to pay the income thereof, semi-annually, to Margaret Robinson, and at her death the principal is to be divided “ equally in equal proportions between my brother Alexander C. Lloyd, my sister Eliza Howe, my wife, Jane Lloyd, and my adopted daughter, Anna Lloyd.” The same reasoning given in the construction of the fourth clause applies to this; consequently each of the four legatees, on the death of Margaret Robinson, took one quarter ($2,500) each, which was vested in them as owners from the death of the testator.</p>

Application by plaintiffs, who hold the first mortgage on the premises, for the appointment of a receiver pendente lite for the foreclosure of their mortgage. The defendant Lee, who held a subsequent mortgage on part of the premises, is now in possession of that part, having foreclosed his mortgage and bought in the premises.

This action was brought by the plaintiff to recover his salary as attendant and messenger of the superior court for the months of September, October, ¡November, and December, 1871.

This was a motion to vacate an order of arrest against the defendant, argued in this court. The facts appear in full in the following opinion.

<p> Removal of a receives' appointed on the dissolution of an exprress company, on the ground of interest, if not collusion, and the appointment of a disinterested and proper person in his place. </p> <p>Prior to the 1st of November, 1866, Walls, Fargo & Company were a joint stock association, formed principally for carrying on the express business, with a capital stock of 80,000 shares, divided into 100 shares each. The par value at that time was $100 per share, and its actual market value was $285 per share.</p> <p>On the said 1st day of -November, 1866, the then trustees of said company, who are defendants in this action, by a unanimous vote of the trustees, dissolved the corporation.</p> <p>Immediately, upon its dissolution, the said trustees transferred to a rival company, then known by the name of the Holladay Overland Mail and Express Company, and now known, and a party to this action, as Wells, Fargo & Company, the name, good-will and territorial rights and other personal property of the dissolved association, and received in payment therefor $4,000,000 in stock (at its par value) of the defendant, Wells, Fargo & Company. Besides the property thus transferred, Wells, Fargo & Company held certain other property of considerable value, for the benefit of its former shareholders.</p> <p>The plaintiff in this action was the owner, at the time of the dissolution aforesaid, of 100 shares of the stock of said association of Wells, Fargo & Company, and objected to the dissolution and sale as aforesaid, at the time it was made.</p> <p>On the 16th day of February, 1870, the plaintiff commenced this action, for his own benefit and all other parties who were interested and might become parties to the action, for the purpose of obtaining relief on account of the alleged illegal sale to a rival company, and to obtain a receiver of the assets of the dissolved company, who should distribute the same to the stockholders.</p> <p>In May, 1871, the cause was referred to a referee, to hear and decide. After a protracted hearing and trial, the referee made his report, by which he found: 1st. That the action of the trustees in dissolving the association was a legal exercise of their powers, and in all respects valid. 2d. That it was the duty of the trustees, upon such dissolution, with due diligence, to convert the assets into money, and to distribute the same among the shareholders, and to the plaintiff, at the rate of 100-20,000 thereof. 3d. That the trustees, by reason of having sold a portion of the assets to the defendant, Weils, Fargo & Company, at private sale, without having given any notice thereof, and having taken stock in payment therefor, violated their duty as trustees, and are liable to the plaintiff for the value thereof. 4th. That the value of the assets of said association was $285 per share, and that plaintiff's 100 shares therein were worth $28,500. 5th. That the portion of the assets so sold to the defendants, Wells, Fargo & Company, were worth $200 on each share of the old company thus dissolved. 6th. That the plaintiff is entitled to judgment against the trustees (naming them) for §20,000, with interest from November, 1866, with costs;-and that a receiver of the assets of Wells, Fargo & Company be appointed, with the usual powers and duties in such cases.</p> <p>An application was subsequently made at special term for the appointment of a receiver, in pursuance of this judgment, which was met and resisted by the defendants, Wells, Fargo & Company, on the ground that a receiver had already been appointed, in pursuance of a judgment in an action commenced after the commencement of this action, but final judgment therein rendered before this action was terminated, by a shareholder of the original association, on behalf of the association, against the trustees of the dividend fund of Wells, Fargo & Company, the plaintiff therein having given consent to the sale of the property to the new company, but charged that the trustees of the old company had been guilty of fraud and illegal conduct since the sale, and that a receiver should be appointed, &c., whereupon the issue in that cause was, by consent, referred to a referee, who, after a hearing, made his report., by which the whole" conduct of the trustees, the defendants, was approved, and they absolved from all liability to any stockholder, and large allowances made to one of the trustees, for services, who was, by the judgment and decree made on filing the report of the referee, appointed receiver of the assets of the company, with the usual powers and duties of receivers in such cases.</p> <p>Of the existence of this second suit, the plaintiff, McArdle, had no notice or knowledge whatever until this motion. Upon inspection of the proceedings in this second suit, and from the evidence produced on this motion, it was apparent to the court—laying aside the strong presumption of collusion which attached to that second suit—that the trustee who had been appointed receiver in that suit was, from interest and feelings, adverse to the plaintiff in this action, and, for other reasons, an improper person to act as receiver in administering the affairs of such dissolved corporation, and should be removed, and the person named as receiver on this motion appointed; standing, as he appeared to, indifferent between the parties, would most likely execute the duties of receiver fairly, impartially and faithfully.</p>

This action was brought to recover $50,000 damages for alleged malicious prosecution and false imprisonment, in causing the plaintiff to he arrested, on a warrant issued by a police justice of the city of Hew York, on the charge of having committed willful and corrupt perjury. It appears that the defendant Edward Lumley called at the plaintiff’s place of business and, representing himself to be Alexander Lumley, purchased goods on credit.

The report of the commissioners of estimate and assessment for opening Lexington avenue, from One Hundred and • Second street to Harlem river, was confirmed February 14, 1874. On the 12th of June, 1874, an order to show cause was granted, returnable June fifteenth, why the report should not he set aside, for fraud, mistake and irregularity.

Motion to vacate a judgment rendered at a special term of this court held at the supreme court chambers in the city of Kingston, on the 14th day of September, 1875, to which place and time it had been adjourned from the Ulster (April, 1875) circuit, pursuant to section 24 of the Code of Procedure.

<p>Prior to the year 1837, one Matthew Leary was owner and possessed of the premises mentioned in the complaint.</p> <p>In April of that year, Matthew Leary died, leaving him surviving a widow and two infant children, all of whom died within a few years after. At the time of the death of the youngest child its heirs at law were John Leary, Bernard Leary and Gilbert Leary, brothers of its father Matthew Leary, and Mary Blake, his sister. All of these brothers, except John, and the sister were aliens, residing in Ireland. John Leary was naturalized in May, 1834. About the year 1852, the said Bernard Leary, Gilbert Leary and Mary Blake came to this country. Gilbert Leary at once entered into the possession of the premises and collected the rents thereof from that time up to the year 1871, and divided the same into three parts, paying one part to Bernard Leary in his lifetime, and after his death to his widow, the said Bernard Leary having died in 1868, leaving him surviving his widow and two infant children, the plaintiff and the defendant, Thomas Leary; paying another part to his sister, Mary Blake, and retaining the remaining third part. In February, 1871, the defendant Gilbert Leary conveyed the whole of said premises to his daughter Catharine McCabe, and in the same year the legislature passed an act releasing the interest of the state in said premises. This action is brought by the plaintiff for the partition of these premises, claiming one-eighth part thereof for himself and one-eighth for his brother, and one-quarter each for the defendants Gilbert Leary, John Leary and Mary Blake.</p> <p>The defendants Gilbert Leary and McCabe claim that they being in exclusive possession of these premises partition cannot be had, and also that by virtue of the act of the legislature the land having escheated to the state, Catharine McCabe is the owner of the same.</p>

This action, coming on in its regular order to be tried before Mr. justice Freedman and a jury, after having been tried three times before, defendant’s counsel, at the close of the testimony on both sides, moved for the direction of a verdict in favor of the defendant.

<p>A tender of interest money, when insufficient to present a foreclosure of mortgage for the principal.</p> <p>A tender, to be valid, must be made to the creditor, or to some person authorized to receive it on his behalf.</p> <p>A bank check is not a legal tender; and where such a check is returned to the debtor promptly, with the information that the interest (the amount of the check) must be paid at the residence of the creditor immediately, or he will proceed to foreclose the mortgage for both principal and interest, and the debtor has ample time to act upon this information before the thirty days expire in which the principal will become due for non-payment of the interest, but chooses to regard a tender he had made of the interest to a person not authorized to receive it, and by whom it was refused on that express ground, as a valid tender in law, and to take the consequences, there is no good reason why equity' should relieve him from a .position in which he has voluntarily placed himself.</p>

<p>Appeal by certiorari from a conviction at the special sessions.</p>

<p> Assignment of unearned fees by a public officer—when valid—not against public policy. </p> <p>A declaration or admission of payment made by an assignee of unearned fees of a public officer, after he has parted with his interest therein, cannot affect the transfer; nor is it evidence of payment as against the second assignee or in favor of the assignor, unless the latter made it without notice of the transfer, even though he has possession of the assignment itself, as it is a transfer of a claim for fees earned and to be earned, and not an obligation of the assignor to pay money.</p> <p>The fees of a public'officer (justice of the peace), earned and unearned, are capable of assignment. Those unearned having no actual existence rest in expectancy merely, and the transfer is valid in equity as an agreement when they are brought into existence. The case of Vield agt. Mayor, &c., of New York(6 N. Y., 179) settles this.</p> <p>Also, the same case is authority for holding that such an assignment is not void on the ground that it is against public policy.</p> <p>The case is different from an assignment of a salary of a public officer not earned when made (see the cases of Bliss agt. Lawrence, and Bliss agt. Gardner, 48 Row. Pr. R., 21, decided in the Court of Appeals)-, because unearned fees depend for their allowance upon the performance of the service.</p> <p>In the case of a salary the compensation is founded upon a general service which, from his possession of the office, the incumbent is supposed to have performed, and in the case of fees each item is to represent work actually done, for which, when completely finished, the law fixes the compensation — that which is not done is not allowed or paid.</p> <p>The effect of granting the relator’s application for a mandamus would be to take from another the money which the relator had placed in his hands; for, as between these parties, the assignment was executed— the relator consented that the assignee could receive the money. If public policy forbade the taking of the assignment, it forbade the relator to make it. The parties are in pari delicto, and the law will leave both where it found them. Mandamus denied.</p>

<p> Misdirections by the court to the jury, when must be reviewed by exceptions as error, and not by motion for irregularity. </p> <p>The jury in this case, after having been out some time, came into court and stated their inability to agree; whereupon the judge, among other things, remarked that the case was of too much importance to the parties to have a disagreement; that the verdict was the judgment of twelve men and each man formed one-twelfth part; that no man should be so obstinate as to say, “ I will have my own way or I will not have it at all,” because he must remember that he formed only one-twelfth part; that it was better in cases of this sort that a judgment of doubtful propriety be rendered than none at all; because if the jury should render a judgment then the parties would know what their rights were and could act accordingly; whereas, if they did not render a verdict, no progress was made and the parties were punished by the disagreement; that it was a reproach to the administration of justice; that courts were organized that parties could come in and have their rights determined, &c.</p> <p>The jury returned to their room and soon after came into court and brought in a verdict for the defendant. Exceptions were duly taken to the remarks of the judge, which were duly entered.</p> <p>Passing over one or two preliminary objections to this motion, the judge was of opinion that the portion of the remarks to the jury, to which objection could fairly be taken, raised a question of error rather than of irregularity, and must be reviewed on bill of exceptions and not decided on motion. Motion denied.</p>

This action was tried before ex-judge Jno. Slosson, referee, to whom the cause was referred to hear and determine. Both plaintiff and defendant appealed from the judgment, and the referee’s report is as follows: Facts. First.

<p> Promissory notes, made payable, dated, and, indorsed in this state, sent by the maker to another state, where they an'e discounted for him, the contract made by the maker by means of the notes is made in the other state. </p> <p>Where E. H., a resident of New York, made five promissory notes, dated March 14,1873, and payable one year after date, to the order of O. A,,, at the Bull’s Head Bank, New York, and indorsed by O. A. & A. H. L., both residents of Rhode Island, two for .§13,500 each, one for §3,000, and two for §1,500 each. To secure the payment of the whole sum, §31,000, the maker executed and delivered a chattel mortgage to O. A., bearing even date with the notes, upon his hotel property in New York.</p> <p>For the three notes amounting to §38,000, the bank in Rhode Island that discounted them for the maker gave^ at its place of business, for him, the sum of §35,000, the note for §3,000 representing the interest on the §35,000 for one year. The two notes for §1,500 each were made as compensation to O. A. & A. H. L. severally, for indorsing the three notes which the bank discounted. O. A. acted as agent of the maker in getting the discount. The indorsements were made after the arrangement with the bank for discounting, but before the §35,000 was paid over for the maker.</p> <p>Held, that the contracts ^tnade by the maker, by means of the notes, were made in Rhode Island, and not in New York. In legal effect, he made the notes in Rhode Island at the time when the three notes were passed and discounted by the bank. As the rate of interest taken upon the discounting of the whole five notes was lawful according to the laws of that state, the whole transaction was valid.</p>

The plaintiff is the husband of Elizabeth O.. Clark, deceased, who was one of the children of Isaac U. Coles, deceased; and this action is brought against his widow, Martha E. Coles, as his executrix, and also individually, and against Edward Coles and William H. Seilson, as his executors; to compel them to apply the income of his estate to the payment of taxes and assessments already accrued and hereafter to accrue upon certain unproductive real estate in 'Jersey City in…

<p>' Motion for new trial at special term upon a case.</p>

<p> Adjounmentof mortgage foreclosure sale—regularity. </p> <p>The defendant, on the day of sale of mortgaged premises, served on the referee an order appointing a day for the hearing of a motion which defendant desired to make, and also stayed proceedings, &c.</p> <p>Held, that the intent of the order was to stay the sale, and not to prevent the adjournment of a sale, and that the adjournment made by the referee was regular, and was a satisfactory compliance with the order.</p>

<p> Settlement of proposed case. </p> <p>Where the defendant’s right to make a case on which to obtain a review of the trial of the special issues tried by a jury, has expired, according to rule 40 the defendant must be deemed to have acquiesced in the verdict, and the same cannot be questioned any more.</p> <p>Under such circumstances it would be a waste of time to consider and settle the case for such review.</p> <p>Where, after such trial, the cause was finally heard as an equity cause, at special term, and judgment given, from which defendant took an appeal— this appeal the defendant could review on making a .case for that purpose.</p>

<p> District courts, New Tm'h—forcible entry and detainer. </p> <p>The district courts of the city of New York have no jurisdiction to entertain proceedings for forcible entry and detainer.</p>

<p> Right of property in news—transmission by telegra/ph. </p> <p>Hews is property. Its transmission to subscribers over telegraphic printing instruments s not a general publication.</p>

The prisoner was indicted for the murder of Herman Holcher. The homicide,was committed in May, 1873. The trial took place at Catskill, in March, 1874, 'and resulted in a conviction of murder in the first degree. The prisoner was executed May 1, 1874, and on the day previous to the execution killed his keeper (Mr. Ernst) in an attempt to escape. Previous to the execution the prisoner was carefully examined by Drs.

<p>Motion for a new trial on the minutes.</p>

This action was commenced by the plaintiff, life insurance company, against the defendants, who are the widow and children of the deceased policyholder, and the agent of the company.

<p>Motion by the city to confirm the report of commissioners in the above matter.</p>

<p>Motion to set aside judgments and for relief. Affidavits were read in support of said motion and in opposition thereto, at the Oswego special term, and the court thereupon ordered a reference to ascertain the facts, as the affidavits were in great conflict.</p> <p>(1.) Such reference has been executed, and L. J. Dorwin, Esq., the referee, has made his report, and given his opinion, and returned the evidence taken; and thereupon, at this term, the parties were further heard.</p> <p>(2.) In 1872, Brown & Brown, executors, brought an action, on three notes, against the defendant, who joined issue, and a reference was had to judge Lansing, who thereafter reported in favor of the plaintiffs, and his report was filed April 8,1875, and a judgment regularly entered thereon on 9th of April, 1875, for $1,750.08, and an execution issued thereon.</p> <p>(3.) William Burrows brought a suit against Lucia Marrigold, and obtained personal service of summons October 12, 1874, and an answer was put in by defendant, and an inquest regularly taken, at a circuit, in April, 1875, and judgment duly entered April 7, 1875, for $640.50, damages and costs. This action was brought on a valid debt, and the answer was served by E*. Whitney, as attorney for the defendant Lucia, and the inquest and judgment taken April 7, 1875, at the circuit in Jefferson county.</p> <p>(4.) William A. Gilbert brought a suit against the same defendant and obtained personal service of summons March 22, 1875, and entered judgment 12th of April, 1875, for $106.21, and judgment was entered on defendant’s default, regularly.</p> <p>(5.) That at said circuit an inquest was regularly taken against the defendant in favor of John Alies and judgment entered thereon for $233.46, BT. Whitney being attorney -for defendant on the record.</p> <p>(6.) That on the 5th day of April, 1875, and while such other actions were pending, Lucia Marrigold, under section 382 of the Code, confessed a judgment to her brother, Julius Marrigold, for $3,000, upon a statement alleged to be defendant’s and not signed by defendant. FT. Whitney, as attorney for the plaintiff, then entered up the judgment by asking the clerk of Jefferson county to file the papers and sign the roll.</p> <p>The statement was as follows: “ For money let this day, by Julius Marrigold to me, Lucia Marrigold.” The statement was verified same day by Lucia Marrigold, and judgment entered April 6, 1875, for $3,005.60, and an execution issued by the attorney therein.</p> <p>The referee finds, upon ample evidence, that the judgment was fraudulent, and entered to defraud Browns’ and other creditors of the defendant.</p> <p>That $3,000 was not, nor was any sum advanced by Julius to Lucia, the day of-such confession.</p> <p>That the judgment was not founded on a valid consideration.</p> <p>7. April 6,1875, at 3.50 p. m., two judgments for about $500 each were entered in Jefferson county clerk’s office, in favor of FT. Whitney against Lucia Marrigold, upon filing of summons and complaint in each case, and the admission of service, signed by the defendant, and the admission verified by N. Whitney’s affidavit before one J. O. Fulton, notary, April 5, 1875, and the complaint verified at same time, by plaintiff, before same notary. "</p> <p>The admission of service is not dated, but it states: “ I hereby admit that the foregoing summons and complaint were duly personally served on me on the 15th day of March, 1875, at the city of Watertown.” And judgment was taken thereon for $553.26, being $536.25 damages and $17.01 costs, upon an alleged note dated 22d March, 1874, for $500. The other action purports to be on a note alleged to have been made by defendant 26th September, 1874, to plaintiff therein, and the complaint verified 5th of April, 1875, before Fulton, notary.</p> <p>The admission of service states, viz.: “ I hereby admit that the within and foregoing summons and complaint were duly and personally served on me, the within named defendant, on the 17th day of November, 1875, in the daytime, at the city of Watertown, Jefferson county, N. Y., by handing to and leaving with me, at the place and time aforesaid, true copies thereof, and at the same time showing me the original.” (Signed) “Lucia Marrigold.” The plaintiff then states, in an affidavit, that it was signed by defendant, and such affidavit is sworn before Fulton, 5th of April, 1875; and the affidavit states no appearance, and that “ more than twenty days have elapsed since the service of the summons and complaint on the defendant in this action; ” and that affidavit is also sworn before Fulton, April 5, 1875. The judgment is for $519 damages and $19.36 costs, entered by the clerk of Jefferson. county.</p> <p>The referee finds and reports that these admissions were “ ante-dated (assuming the one to be of 17th November, 1874, instead of 17th November, 1875, as within) or “prematurely executed, to enable the said Whitney to enter judgments, and thereby obtain preferences over any judgments that might be entered in the actions hereinbefore mentioned, then pending against the said Lucia Marrigold, and for whom in which actions he was acting as attorney.” Much evidence was taken tending to establish that the defendant was not indebted in any considerable sum if at all, to the plaintiff, on said two judgments so entered in favor of Whitney; and the referee does not find specifically upon that subject, and it is not necessary to finally pass upon that question upon this motion.</p>

<p> Corporation—claims of creditors, how enforced upon its dissolution, or expiration of its charter. </p> <p>Upon the dissolution of a corporation, its contracts and liabilities are not extinguished.' Creditors may enforce their claims against any property of the corporation which has not passed into the hands of a bona fide purchaser.</p> <p>The stock and property of a corporation is deemed a trust fund for the payment of its debts, and creditors have a lien or right of priority of payment, in preference to the claims of a stockholder in the corporation.</p> <p>If the capital stock and property be divided among the stockholders, leaving any debt unpaid, every stockholder, receiving his share of the capital stock out of corporate property, is held liable, pro rata, to contribute to the discharge of such debts out of the property or its proceeds in his hands.</p> <p>A judgment recovered against a corporation is final and conclusive against stockholders, when it is sought to be enforced by action against corporate property, or its proceeds received by them.</p> <p>Miller agt. White (57 N. Y., 137) distinguished.</p> <p>The defendants, being stockholders in a corporation about the time of its dissolution, took to themselves a steamboat, the property of the corporation, which they sold and disposed of to their own use. Held, that they were liable, pro rata, according to the stock held by them, to pay the claim of a creditor, existing at the time they took to themselves the property.</p>

Challenge by defendant, Tweed, to the array o-f the special jury in the first cause, commonly called “ the six million suit.”

A decision having been rendered upon the challenge to the array of the struck jury in this cause, made by the counsel for the defendant, Tweed, which holds that such challenge must be sustained upon the ground, mainly, that the list of jurors summoned by the sheriff contains only twenty-three who have been selected and approved by the elisors, and one who was not so selected or approved; a motion is now made to-correct the list of names by erasing: therefrom the name of…

<p>Challenge to the array of the struck jury.</p>

<p>Motion to summon talesmen to fill the two vacancies in the Tweed jury.</p>

<p> Beformation of written agreements—principles controlling in their determination. </p> <p>1. Where parties have entered into a written contract, it must be presumed in law to express their common intention and to speak their actual agreement.</p> <p>2. If such contract is alleged not to express the real intent of the parties, and that fact is shown by sufficient evidence, a court of equity can correct the alleged mistake in favor of the party prejudiced.</p> <p>3. The proof required to correct such mistake must be clear and unequivocal.</p> <p>4. As a general rule the mistake which will afford ground of reformation of an expressed contract must be of a mutual character ; in other words, the mistake must be reciprocal and common to both patties.</p> <p>5. If one party, in the execution of a contract, has delivered or received papers in supposed furtherance of it, but with knowledge of a mistake made in his favor, which he conceals, then equity will reform the contract or give relief to the other party if the mistake is clearly shown, although it be not mutual.</p> <p>6. If the mistake has not been mutual, but made inadvertently on one side, and yet in good faith by the other, if any amendment or reformation of the contract can under any circumstances be made, it cannot be made so as to make the agreement conform merely to the views of the party applying, but only to the original views of both parties.</p> <p>In this case there is not sufficient evidence of mistake on the part of the plaintiff, to warrant the setting aside of the deliberate agreement made between him and the defendant.</p> <p>Even if the plaintiff were mistaken and the defendant not — there having been no rescission or offer to rescind, so that the defendant might be placed in statu quo, the contract cannot be nullified and a new one imposed on the defendant which he had not contemplated.</p> <p>Neither is there any, evidence of any willful misleading of the plaintiff, or knowledge of mistake on the part of the defendant and a silence kept under it, so that plaintiff, as claimed, was fraudulently misled to his injury.</p>

This is a motion made, on behalf of the defendant, to vacate an order of arrest granted in this action, by a judge of this court, beforb service thereof, and of the summons accompanying the same; or to reduce the amount of bail. To obtain a standing in court, defendant appeared generally in the action, and demanded service of a copy of the complaint.

<p>Action tried before the court without a jury.</p>

This was an action brought to enforce a mechanic’s lien. The defendant Rourke entered into a contract with defendant Palmer, who was the owner of the property, to erect a building in the city of Albany. At the request of Rourke, the plaintiff furnished materials which were used in the construction of the building. One Ackerman, also a defendant, likewise furnished materials. All the parties resided in the county of Albany.

<p>Motion for reference of issues.</p>

Demurrer to complaint. Daniel Embury, deceased, in and by the fifth paragraph of his will, devised and bequeathed to his executors, framed in the will, all the rest, residue and remainder of his estate, real and personal, to have and hold the same in trust for the following purposes: 1.

<p> Construction of a will—a de facto trustee authorteed to recover from the estate moneys expended by him individually, for the benefit of the estate. </p> <p>The provision of the will in question was as follows: “ I do hereby will in trust to my wife, Elizabeth, all my property, both personal and real, whatsoever, and wheresoever, during her lifetime. In consideration of which, it shall be her duty to care, provide and educate our children until they are of age. After her death, all the real estate which may be found, is to be divided equally among my sons; and all my personal property which shall be found then shall be equally divided among my daughters. This is my last will and testament, and it is my desire that the spirit as well as the letter thereof may be carried out.”</p> <p>There were no executors named in the will, and the widow, Elizabeth, and the brother of the deceased, Nicholas, were appointed administratrix and administrator with the will annexed. There were eight children, all minors, at the death of the testator.</p> <p>The administratrix, aided by the administrator, took the charge and management of the estate and the support of the children in pursuance of the provisions of the will for about two years, when the administratrix died, leaving the administrator in sole charge, who proceeded with the same management and care of the family as was done prior to the death of the administratrix for about two years, when one of the defendants herein was appointed as a guardian for the infant heirs, and a general guardian, to whom the administrator delivered up the control and management of the estate — having during his management expended something over $200 of his own funds for the benefit of the estate.</p> <p>The administrator having subsequently died, his executrix brings this action to recover the amount of money expended by the administrator out of his private funds for the benefit of the defendants’ estate. The defense is that such expenditure was made without lawful authority— that it was expended generally without reference to any one child—that on the death of their mother, the female children took the personal estate and the male the real, and the grant of the relief prayed for will take the share of one child and give it to another.</p> <p>Held, that the disposition of this case turns upon the construction of the will mentioned. The letter of the will does provide for a division of the estate among the children on the death of the mother; but the spirit of the will, which evidences the intent of the testator, also provides that the devise to the widow and mother, of the whole estate, is upon “ the con- sideration that she should care, provide and educate our children until they are of age.” The object of the will was to provide for the children during their minority from the whole estate, and it follows that the real estate would be divided among the male children and the personal among the female— only after such object had been accomplished, and not immediately upon the death of their mother. This disposes of the objection that a judgment in favor of the plaintiff may take from the share of one child to pay the debt of another.</p> <p>This being strictly an equitable action the statute limitation of ten years applies to it.</p>

<p> Judgment, when its lien limited or removed—wife, conveyance to, from husband, through third parrty—parol evidence as to the pwpose of a conveyance, allowable. </p> <p>A court of equity will recognize and protect the equitable rights of third parties, against what appears to be a legal lien, and will limit that lien to the actual interest which a judgment debtor had in the estate.</p> <p>The lien of a judgment will be removed by the decree of a court of equity, when the judgment debtor holds the estate merely as a naked trustee for another, or when there is a subsisting, equitable claim in favor of a third party against the premises, prior in point of time to the lien of the judgment.</p> <p>When a husband, the owner of a house and lot, was about to go "to sea, and was desirous of conveying the same to his wife, and for this purpose, by the advice of his lawyer, conveyed the same without consideration to a third party, upon the understanding that such third party should immediately convey the same to the wife, and the conveyance to such third party and from him to the wife, were made instantaneously: Held, that a judgment theretofore docketed against such third party, and then existing, was not a lien upon the premises," as against the equitable interest of the wife in the premises.</p> <p>Also, held, that it was proper to show by parol evidence, the purpose for which the conveyance to such third party was made, and the interest of the wife in the premises.</p>

<p>Appeal by the defendants from a judgment of foreclosure and sale rendered in favor of the plaintiff at an equity term of this court.</p>

The complaint alleges the incorporation of The People’s Safe Deposit Company under chapter 816 of the laws of 1869, its insolvency, appointment of receivers thereof by this court, an adjudication of the bankruptcy thereof) and the appointment of assignees in bankruptcy under the national act; the insufficiency of the assets to pay the debts and liabilities of said institution; that the plaintiff is a creditor of said institution; that divers other creditors have brought…

<p> Usury paid to an agent—principal not liable—mortgage to secure future advances. </p> <p>Where an agent for the loaning of money takes a bonus beyond legal interest for himself, without the knowledge of the principal, it does not affect with usury the loan of the principal.</p> <p>The cases of Condit agt. Baldwin (21 N. Y., 219), and Bell agt. Day (32 N. Y, 165), settle this doctrine, although it is probable that had Condit agt. Baldwin preceded Bell agt. Bay, a different rule would have been adopted.</p> <p>The parties to a mortgage given for a definite sum, may agree, upon payment down of a part of that sum, to make it an equitable security for future advances. And it would be competent to prove by parol that it was given to secure an open account, the balance of which was continually varying.</p>

<p> Taxation of costs on mamkmus.. </p> <p>The board of supervisors of a county is not a public officer contemplated by the statute in reference to double costs, on the final determination in its favor of a trial upon mandamus.</p> <p>The costs in such case must be taxed; as single costs, under the act of 1840, chapter 386, as amended by the act of 1844, chapter 273.</p>

<p> Agreement, when not in restraint of trade—Injunction. </p> <p>The defendants, for a valuable consideration,'covenanted with the plaintiff that they would not manufacture or sell a medicine, produced from the “ Witch Hazel,” by, among others, of either of the following names : “Pond’s Extract,” “Extract of Witch Hazel,” “Humphreys’ Pond Extract.”</p> <p>Held, under the facts and circumstances of this case, that the sale of the medicine thereafter, by the defendants, under the name of “ Humphreys’ Witch Hazel,” was a violation of the covenant.</p> <p>Also held, that, as the defendants were not restrained, absolutely, from making or selling a medicine produced from the shrub in question, but only from doing so under certain names, the covenant was not void as being in restraint of trade.</p> <p>Also held,, that the remedy by injunction was proper to restrain the defendants from a continued violation of the covenant.</p>

<p> Interest upon an a/wa/rdfor widening Broadway, New Torh. </p> <p>The interest on an award to the plaintiff for the widening of Broadway, in pursuance of the act of 1869, began to run against the corporation of the city of New York on the day that demand was made upon the comptroller by the plaintiff for payment, pursuant to the act of 1860, after the confirmation of the report of the commissioners.</p>

<p> Extra allowance—denied in action to reach an a/wan'd. </p> <p>In an action to reach an award in the hands of the comptroller of the city of New York, for the taking mortgaged premises for the widening of Broadway, where the whole issue was between the defendants and the corporation, the plaintiff is not entitled'to an extra allowance under section 309 of the Code.</p>

<p>The answers made by a person seeking to have his life insured constitute warranties, and must be substantially true, or the policy will be void.</p>

Motion to strike the name of William 1ST. Loew from the roll of attorneys and counsellors of the supreme court, New York, and disqualify him from acting as such.

<p>Application for a mandamus.</p>

The plaintiff is supervisor of the Fourth ward of the citj of Watertown.

Action to enforce bond given by Rogers, as collector of the town of Watertown, signed by Blood, Sawyer and Paddock as his sureties, hearing date 4th December, 1874, in the penal sum of $26,314.13. The conditions of the bond states the taxes at $13,157.43. Bo other name i appear in the bond. Bo erasures are found. It was acknowledged, as the notary’s certificate shows, 4th December, 1874, by Blood, Sawyer and Rogers.

<p> Conveyance made by a man on the eve of ma/rriage—when void. </p> <p>A voluntary conveyance of real estate made by a man on the eve of marriage, unknown to the intended wife and made for the purpose of defeating the interest which she would acquire in his estate by the marriage, is fraudulent and void.</p>

The action was against the defendants as sureties, upon an undertaking, given upon an appeal to the court of appeals, by one Delahanty, from an order of the general term of the court of common pleas, reversing a judgment of the special term and granting a new trial. Delahanty had recovered a judgment against one Seaman. The latter appealed to the general term, where the judgment was reversed and a new trial ordered.

Action to recover damages alleged to have come to a horse shipped by plaintiff from Utica to Adams Centre, Jefferson county. A jury trial was waived by the parties.

<p> Arrest for seduction. </p> <p>In an action for seduction the defendant may be arrested, under the first subdivision of section 179 of the Code, “ for an injury to the person.”</p>

Motion by defendant Tweed, at the close of the evidence, to dismiss the comjdaint as to certain items of the plaintiffs’ demand, and also as to all the causes of action.

<p>Assignment of lease — breach of covenant—re-enter—svhletting.</p> <p>Where there is a covenant in a lease not to assign, and an assignment is made of the whole term by the lessee, if the landlord desires to take advantage of the breach of the covenant, he must re-enter.</p> <p>If the landlord accepts rent from the assignee of the lease, the assignee becomes his tenant, and he takes the leasehold freed from the covenant not to assign, and is only liable for rent for the time that the premises remain his.</p> <p>There is a great difference between a breach of a covenant not to underlet and not to assign. In the one case the lessee still remains the owner of the leasehold premises, and in the other he parts with his whole interest or estate.</p>

<p> Power of a president and cashier of a bank to pledge its assets. </p> <p>Although a cashier and a president of a bank may, in the ordinary course of business, without the action of the board of directors, dispose of the negotiable securities of the bank, yet they have not.the power to pledge its assets for the payment of an antecedent debt. •</p>

<p> Barikrwpi—foreign creditor. </p> <p>A bankrupt cannot prefer a foreign creditor in violation of the provisions of the United States bankrupt act.</p>

This action was brought by the plaintiffs, who compose the firm of Vue J. Magnin, Gnedin & Co., of the city of ISTew York against the Adams Express Company, to recover the value of certain watches and watch keys, delivered in a package by the plaintiffs to the defendant to be forwarded by the latter to J. E. Merriman & Co., at Memphis, Tennessee. The latter assigned their interest to the plaintiffs.

<p> Bemwrrer—defendants sued im their official capacity —jurisdiction—misjoinder of parties. </p> <p>An action can be sustained against defendants as commissioners, without their names as individuals being mentioned in the title of the cause, but it is not necessary to add in the title the official designation to the individual name, when it sufficiently appears in the body of the complaint that they me sought to be charged in their representative capacity.</p> <p>Where the defendants are sued as public officers, and it appears upon the trial that no part of the cause of action arose in them county, the action must be discontinued, but this forms no ground of demurrer.</p> <p>Where it appears that the defendants are clearly the contracting parties to whom the plaintiffs can only look for compensation, there is no misjoinder of parties defendant.</p>

<p> When action by people may be sustained for benefit of a municipal corporation—amendment of complaint, when allowed. </p> <p>The complaint, which sets out the facts in detail, in this action, shows that the action is brought to recover from the defendant Thomas 0. Fields §459,977.79, which was illegally paid to him by the corporation of the city of New York, the other defendant, who, with notice and full knowledge acquiesced in the fraudulent receipt and misapplication of such moneys by Fields — the defendant Fields claiming to have received such moneys as assignee of a number of firemen of the city of New York. The prayer for relief asked a judgment against the defendant Fields, in favor of the plaintiffs, for the sum of money above mentioned, with interest and costs. The defendant corporation did not answer.</p> <p>On the first trial the court of appeals held that the plaintiffs were not entitled to a judgment in their favor for the money illegally and fraudulently taken from the city of New York. They sought a legal judgment, founded upon a supposed legal and technical right of the plaintiffs to the money, in their own right, when it appeared that, in fact, it belonged to the city of New York.</p> <p>On the present, second trial, the plaintiffs ask the court for leave to amend the prayer of the complaint so that it shall demand to recover the judgment therein prayed for, for the benefit of the city of New York, and that the recovery and judgment shall show that the moneys awarded thereby to be paid by the defendant Fields to the plaintiffs shall be so paid to the latter as the trustees of and for the benefit of the defendant the city of New York.</p> <p>Held, that the action can be maintained under the amendment asked, and, also, by force of the statute of 1875 authorizing the people to bring actions in certain cases.</p> <p>Held, also, that it is proper, even at this late stage of the cause, to allow the amendment asked for (Code, § 173).</p> <p>The amendment allowed on payment of the costs of the defendant Fields up to the present trial; such costs, however, shall he a credit and allowance upon the recovery in this action.</p>

<p>Appeal from an order of the special term of this court refusing a peremptory writ of mandamus.</p>

<p> Demwrrw to complaint. </p> <p>Where the allegation of the complaint is “ that the defendants and certain other persons, whose names are ummown to these plaintiffs, hut whose names, when discovered, the plaintiffs pray for leave to join as defendants, entered into a certain copartnership,” &c., for the purchase of certain stock, &c.,is not demurrable on the ground that there is a defect of parties defendant. Plaintiffs are not bound -to name as defendants persons of whose names they are ignorant.</p> <p>Where the complaint alleges the formation of a certain copartnership, the appointment of W. as the manager thereof, the purchase of a large amount of stock, and a sale or closing out of that stock by the order of W. at a loss of $800,000 to the plaintiffs, it states a good cause of action, and is not demurrable for not stating facts sufficient to constitute a cause of action.</p> <p>But several causes of action can be united in one complaint only, where each cause affects all the parties to the action, and they must be in favor of all the plaintiffs and against all the defendants. Held, that this complaint was demurrable on the ground that several causes of action had been improperly united in violation of this rule.</p>

<p> Begularity in proceedings to open streets and cwenues in the city of Troy. </p> <p>The charter of the city of Troy, in reference to opening and widening streets and avenues, does not prescribe with what particularity the route of the proposed street or avenue shall be described. A description given in the petition to the common council for laying out Madison avenue was as follows: “ Commencing at the east end of Madison street, as laid down on the city map, and then extending easterly to a point on the Hollow road, at or near the residence of Michael Grady.”</p> <p>Held,, that this description would be likely to locate, with reasonable certainty, the proposed avenue, so that the route could be understood, which is all the charter required, and was sufficient.</p> <p>Where the common council had approved of the veto of the mayor of such proceedings, it did not terminate the proceedings so as to require a new petition, where, at the same meeting, the route of the avenue was somewhat changed, but not in such a glaring and flagrant departure from the route designated in the petition and notice as to deprive the common council of jurisdiction in the matter.</p> <p>Such proceedings are not fatally defective, in consequence of the omission by the committee appointed by the common council to negotiate for the land to make application to each land owner whose land was to be taken for the avenue, where the committee had reported to the common council their inability to agree with some of the land owners to negotiate or sell their land, upon which report the common council proceeded to apply for the appointment of commissioners of estimate and assessment of damages, &c., as the application for a commission did not prevent further negotiation for the land of those who were willing to sell; and it would not, even after the appointment of commissioners.</p> <p>It is no objection to such proceedings that the proposed route of the avenue takes in a small portion of a farm belonging to the county, and occupied for county purposes, where such farm will not be rendered less valuable thereby.</p>

<p>Motion to set aside subpoena duxes iecmn — examination of defendant before trial.</p> <p>A subpoena duces tecum maybe resorted to on the examination of any person as a witness, whether a party or not, and whether he be examined at the trial, or previously.</p> <p>But a subpoma duces tecum may not be used as a means of obtaining a discovery, and the party calling for the production of books and papers on the preliminary examination of a party, or other witness, before trial, will be required to pursue the examination with respect to their contents, in the same manner, and subject to the same rules as if the trial were actually proceeding in court.</p> <p>There is no discrepancy between sections 390 and 391 of the Code, providing for the examination of a defendant as a witness before trial, and section 388, under which, in certain cases, an inspection and copy of books and papers may be obtained.</p>

<p> Motion, to dissolve injunction—foreign corporation. </p> <p>In this case held, that the directors of this foreign land company, who are to pass upon the purchase of the lands, will act, while they have in charge the interests of the plaintiffs, as their representatives; and they are forbidden, by a principle of law, from voting upon a proposition to sell land to the company, in which land they have an interest, unless the plaintiffs consent to the sale.</p> <p>Por these reasons the injunction should be continued, so far as it forbids the consummation of the present arrangement for the purchase of the Brazos, or Brazoria lands, and may be modified so as to forbid any of the defendants who are interested in those lands from voting as directors or acting officially in regard to any future proposition to purchase them.</p> <p>Jurisdiction over the corporation being taken, at present, only for the purposes of such injunction.</p>