Volume 50 — New York Supreme Court Reports

The action was commenced by the plaintiff for the cancellation of a mortgage held by the defendants, upon premises which the plaintiff claimed belonged to her.

A judgment creditor redeemed real estate sold upon execution on Saturday, October 31, 1885. Another judgment creditor, entitled to twenty-four hours in which to redeem, redeemed on Monday, November 2, 1885, within twenty-four hours of the last redemption, excluding the intervening Sunday. The question presented by the appeal was whether the second redeeming creditor was in time, or whether he lost his right to redeem by not redeeming on Sunday, November 1, 1885.

in this action brought for a partition of two farms. On May 10, 1880, Elias Thomas died in the town of Yolney, Oswego county, leaving a will made on March 5, INS. The plaintiffs are the children of a deceased son of the testator who died before the testator. The defendants are the testator’s daughters. July 3, 1884, the testator’s widow, Electa T. Thomas, died.

The plaintiffs were contractors and builders, who had liens as mechanics upon the respondent’s premises, and commenced this proceeding -April 14, 1885. The answer was served on May 9, 1885. Issues of fact were tried at the Onondaga Special Term of February, 1886 ; findings of fact, and a decision which is silent upon the question of costs being handed down on June 12, 1886.

<p>'Evidence — entries in the boohs of a deceased, person are not admissible to provea claim in favor of Ms estate.</p> <p>Upon tlie trial of tliis action, brought to recover seventy-five dollars for a coach harness, made by the plaintiff’s,intestate at the request and upon the order of the defendant, the plaintiff was allowed, against the objection and exception of the defendant, to put, in evidence the following entry in an order book kept by the deceased: “Herbert Wedderspoon, coach harness, gold and black trimmed, inch and quarter trace, breeching, $75.”</p> <p>Held, that the evidence was not admissible.</p> <p>Livingston v. Arnoux (56 N. Y., 518), and Peck v. ValeoMne (29 Hun, 668) distinguished.</p>

The action was for the partition of certain real estate, the defendant, James Scott, and his wife Caroline being in possession and claiming to be absolute owner. A decree was obtained and entered establishing the title to one-seventh of said property in the plaintiff,, to one-seventh thereof in the defendant Joseph Henderson and to five-sevenths thereof in the defendant J ames Scott.

an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried, and from an order granting an extra allowance. The plaintiff, who was a brakeman in the employ of the defendant, and had been in its service quite a number of years, was injured on May 10, 1880, by the derailment of an express train coming west on track No. 2, occasioned by a switch at St. JohnsVille having been left open.

<p>Practice — an order of a County Court, granting a new trial on the ground that the verdict was against the weight of evidence, cannot be revieioed by the General Term.</p> <p>Appeal from an order of the County Court of Onondaga county, granting a motion made upon its minutes for a new trial, and directing that the verdict recovered by the plaintiff “be, and the same hereby is, .in all things, set aside and vacated, and a new trial granted herein, upon the grounds that said verdict is and was contrary to the law and to the evidence, and against the weight of evidence.”</p> <p>Held, that the appeal should be dismissed, as it would be useless for the court to attempt to review the order, as, even if. it should find no valid exception upon which the order could be sustained, it could not reverse it, as it could not review so much of the order as granted a new trial, upon the ground that the verdict was contrary to the evidence.</p> <p>Reilley v. The Delaware and Hudson Railroad Company (102 N. Y., 888) followed.</p>

.Appeal from a judgment of conviction rendered against tiie appellant in the Court of Oyer and Terminer of Chemung county on tlie 3d day of December, 1885, upon the verdict of a jury declaring her guilty of the crime of body stealing.

The action was brought to recover the value of property consist-' ing of trees, plants, shrubs and nursery stock, to which the plaintiff claimed title under a chattel mortgage given to him by the tenant in possession of the premises, by whom the said property was then owned.

<p>Appeal from, a judgment of a Court of Special Sessions — a failure to comply with the requirements of section 211 of the Code of Criminal Procedure cannot be raised upon such an appeal — all objections must be stated in the affidavit upon which the appeal is allowed — Code of Criminal Procedure, secs. 751, 756 — a demand for an immediate trial before the special sessions, waives the right to demand a trial by another court in a different manner.</p> <p>The defendant, who had been arrested on a complaint charging him with an assault in the third degree, was brought before a Court of Special Sessions and told that he could have time to procure counsel and that he was entitled to a trial by jury. On being asked, after he had pleaded not guilty, if he was ready for trial, and if he elected to be tried by a jury, he demanded an immediate trial by the court without a jury. After having been convicted and sentenced the defendant made an affidavit, setting forth various grounds of alleged error in such proceedings and conviction, and obtained thereon an allowance of an appeal from the judgment.</p> <p>Held, that as it appeared that the objections stated in the affidavit were such as could only be raised because of a failure by the court to comply with section 211 of the Code of Criminal Procedure, and as the requirements, specified in that section, were only applicable to cases in which the defendant had an absolute right to be tried by a jury, after an indictment, the objections could not be considered in this case.</p> <p>That an objection that the magistrate had not informed the defendant of his rights, under sections 57 and 58 of the Code of Criminal Procedure, as required by the. latter section, was unavailing for the reasons:</p> <p>First. That the error relied on was not specified in the affidavit, upon which the appeal was allowed; and,</p> <p>Second. That the statute was directory only and not mandatory, and that while the statute should be observed in the interest of justice and fairness a failure to give the notice was not a jurisdictional defect.</p> <p>That the defendant, by demanding an immediate trial by the court, waived all considerations of other modes of proceeding.</p>

<p>Appeal from a judgment of the County Court of Onondaga county, reversing a judgment of a justice of the peace in favor of the plaintiff.</p>

December 6, 1883, the defendant, by its policy of insurance, agreed to pay Byron D. Houghton, upon the death of Charles F. Wright, “five thousand dollars from the mortuary fund of the association, at the time of said death, or from any moneys that shall be realized to said fund from the next assessment of all surviving members.” It was recited in the policy that it was issued “ In consideration of the representations, agreements and warranties made in the application.” The…

MotioN to confirm the order of the county judge of Onondaga county, affirming the decision of commissioners directing a highway to be laid out and opened in the town of Onondaga in said county.

This action, brought to recover the price of a shipment of dressed beef sold and delivered to defendants by the plaintiff, was defended upon the ground that there was a warranty as to the quality of the beef, and a breach theréof; and that there was an implied agreement that said beef should be merchantable when arrived in the State of New York, and that there was a failure to perform such agreement.

<p>Trust — what is a sufficient declaration of it.</p> <p>On May 4, 1858, George McNish died, leaving a widow, five sons and five daughters. By liis will, executed April 14,1858, he divided among nine of his children all his property, except his homestead and household furniture, which he gave to his widow for life, directing that after her death they should he sold and the proceeds thereof he divided between the nine children named in the will, each son to receive two dollars to the daughters’ one, except the defendant Sarah M. Wheat, who should have two dollars, or a son's share. Harriet Westlake, the daughter who was not mentioned or in any way provided for in the will, died in 1863, leaving three children, the plaintiffs herein, who were alive at the time the will was executed.</p> <p>On May 1, 1858, an instrument was prepared, at the instance of the testator, which, after reciting that in his will, he had bequeathed two shares to the defendant Sarah, one-half of which was intended to be by her laid out and expended for the benefit of his daughter, Harriet Westlake and her children, stated that the said Sarah M. Wheat and her husband accepted the trust and promised the said testator that they would truly and faithfully carry out his views and wishes, in the expenditure of the funds, according to the best judgment of the said Sarah M. -The testator intended that the defendants should execute the instrument, but died before that was done. Before the will was admitted to probate the defendants, with full knowledge of the terms of the will, at the request of the widow, acting for Mrs. Westlake and her children, signed sealed and delivered to her the above described instrument.</p> <p>Held, that the recitals contained in said instrument, and the surrounding circumstances, were sufficient to justify the conclusions that it was the intention of Mrs. Wheat to then divest herself of the title and vest her sister and her sister’s children with the title to one-half of the interest bequeathed to her, Mrs. Wheat, and that a legal trust, enforceable against herself and her husband, was thereby established.</p>

The action was one in equity, and was tried at the Onondaga Special Term. It was brought by two members of a firm, against the other four members thereof, to restrain them from disposing of the partnership property, in violation of the terms of the partnership. The complaint prayed for the appointraen, of a receiver, a disposition of the partnership property by him and a judgment for an accounting, and that the joint enterprise be closed.

<p>Supplementary proceedings — when defects in the return of the execution by the sheriff-are waived by the appearance of the debtor — when a receiver should be appointed although the legal title to real estate is vested in-the debtor.</p> <p>When the affidavit, used upon an application for an order requiring a judgment debtor to appear and be examined, states all the facts necessary to give the judge jurisdiction to grant the order, and the debtor has appeared and submitted to an examination and to the appointment of a receiver without objection^ it is too late to move to vacate the order upon the ground that the sheriff’s return upon the execution is defective, when it appears by the judgment debtor's examination, that he has not been prejudiced by the defect complained of.</p> <p>The fact that the examination shows that the defendant holds the legal title to heavily incumbered real estate, out of which it is improbable that the execution can be collected in whole, or in part, is no reason foe refusing to appoint a receiver.</p>

<p>Appeal from a judgment of the Court of Oyer and Terminer of Otsego county, convicting the defendant of the crime of murder in the first degree.</p>

The action is brought by the plaintiffs to recover possession of certain personal property which they allege in their complaint they sold and delivered to defendant’s assignor, who they allege was insolvent at the time of such sale and delivery, and fraudulently concealed his insolvency ; that thereafter the defendant came into possession of the same, and claims to hold the same, as assignee for the benefit of creditors.

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

<p>Appeal from an order of the Steuben County Court, denying a motion to vacate an order granted by the surrogate of said county, acting as county judge, directing the defendant to appear and be examined in proceedings supplementary to execution.</p>

<p>Exemption from taxation, of lands held by cemeteries — when it does not extend to assessments for municipal imp'ovements — when an exemption given by a special statute is not affected by a general act giving the same exemption.</p> <p>This action was brought by the plaintiff, a corporation created to purchase lands in the city of Buffalo for burial purposes, to have an assessment imposed upon its lands for the purpose of defraying the expense of paving a public street in that city, leading to and in front of its land, declared void, and to restrain the collection thereof. Section 9 of the act incorporating the plaintiff (chap. 234 of 1854), declared the cemetery to be exempt from “all public taxes, rates or assessments.” In 1870 there was inserted in the charter of Buffalo a provision that “no lands in the city shall be exempt from local assessments, any statute to the contrary notwithstanding.”</p> <p>Chapter 154 of 1871, entitled “An act to amend the charter of the Buffalo City Cemetery, and to restore the exemption of cemeteries in said cities from local assessments,” provided that “ all lands in the city of Buffalo belonging to any incorporated cemetery association shall be exempt from taxes, rates and assessments to the extent provided in section 10 of the ‘ act to incorporate cemetery associations,' passed April 27, 1847, any statute to the contrary notwithstanding, ” except, in the case of assessments for grading or paving those parts of any streets or sidewalks in front of and bounded on lands of the cemetei-y.</p> <p>Held, that as the exemption from taxation, contained in section 10 of the act of 1847, was identical in language with that expressed in the charter of the plaintiff, and as the Court of' Appeals had decided that the exemption contained in section 10 did not extend to a municipal assessment levied to defray the expenses of a local improvement, it necessarily followed that neither the • provision of the revised charter of the city above referred to, nor thé act of 1871, affected the exemption contained in th§ plaintiff’s charter, and that such exemption did not relieve it from the assessment in question.</p> <p>Chapter 310 of 1879, entitled “An act to prevent the sale of lands used for cemetery purposes,” directs that “no land actually used and occupied for cemetery purposes shall be sold under execution, or for any tax or assessment; hor shall such tax or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such land or to apply it in payment of debts. ”</p> <p>Held, that as the act was general in its terms, and there was nothing in it manifesting an intention to repeal or alter the prior statute providing specially for the case of the plaintiff, the plaintiff -was not entitled to the exemption thereby created.</p> <p>That if it were assumed that the plaintiff was within the exemption created by the act of 1879, the assessment would create no cloud upon the plaintiff’s title which would authorize it to maintain this action, as the bare reading of the act itself would show the invalidity of the proceeding.</p>

<p>Certiorari to review an erroneous assessment — the provision as to the time when the roll is to be delivered for inspection, is only directory ■— chap. 269 of 1880, sec. 9 — the assessors have power to correct or supply defects in an affidavit verifying the roll.</p> <p>In this proceeding brought to review an assessment made by the assessors of a town, the relator sought to establish the invalidity of the assessment by proving a failure of the assessors to comply with the provisions of section 9 of chapter 269 of 1880, which requires that all assessment-rolls, when finally completed and verified by the assessors, shall, in towns, be delivered to the proper officer on or before September first, there to remain for a period of fifteen days for public inspection, public notice thereof being given by publication and posting. It appeared that the assessment roll for 1883, sworn to before a notary, was not delivered to the supervisor until September eleventh ; that on October tenth, following, the assessors verified the roll before a justice of the peace of the town, and that the said roll remained with the supervisor for fifteen days for public inspection ; that the assessors caused a notice, dated October twenty-third, to be on that day x>osted and xiublished, stating that the roll would remain with the supervisor “ for the x>eriod of fifteen days from the first day of September, open to public inspection, pursuant to section 9, chapter 261* of the Laws of 1880.”</p> <p>Held, that, although it was, prior to the passage of chapter 57 of 1884, irregular to verify the rolls before a notary, the irregularity was cured by the subsequent affidavit, made before a justice of the x>eace, and the action thereafter taken in respect to the roll thus properly verified.</p> <p>That the statutory provision as to the time when the roll should be verified and left with the supervisor, and notice thereof should be posted, was directory and not mandatory.</p> <p>That the statement in the notice that the roll would remain with the supervisor for the period of fifteen days from the “first day of September,” was not a neces: sary part thereof, and should be rejected as surplusage, unless it did harm to the appellant by misleading it, of which there was no evidence.</p> <p>The assessors, on the 28th of August, 1885, made and annexed to the roll an affidavit in the form prescribed by section 17 of 1 Eevised Statutes, 393, as amended by section 3 of chapter 176 of 1831, and on the seventeenth day of October made and annexed to the roll an affidavit in the form prescribed by chapter 201 of 1885.</p> <p>Held, upon the authority of this relator against Smith (39 Hun, 332), that the first affidavit was not defective, it being a substantial compliance with the act of 1885, but that if it was defective or irregular it was cured by the second one.</p>

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

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

M ition for new trial by the defendant, on exceptions taken at the Monroe Circuit, and ordered to be heard at the General Term in the first instánee.

Motion by the defendant for a new trial, upon a case and exceptions, ordered by the court to be heard i'n the first instance at the General Term after a verdict had been directed at the Livingston Circuit in favor of the plaintiff.

<p>Costs — the fee for a copy of the stenographer's minutes cannot he taxed — an appeal from a judgment is a waiver of a right to move for a retaxation of costs.</p> <p>The fees of a stenographer for a copy of his minutes are not a taxable item of disbursement, even when procured for the purpose of enabling a party to propose amendments to a case.</p> <p>An appeal from a judgment, entered upon an order of the General Term affirming a judgment of the court below, is a waiver of the right to move for a retaxation of the costs.</p> <p>Quclcenheimer v. Angevine (16 Hun, 453) followed.</p>

<p>Appeal from a judgment entered upon the decision of the Erie Special Term, and also from an order denying a motion to vacate a judgment for irregularity.</p>

<p>Appeal from an order of the Monroe Special Term, denying a -motion to change the place of trial from the county of Yates to the ■county of 'Livingston, under section 982 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment of the Cattaraugus County Court, reversing the judgment of a Justice’s Court in favor of the plaintiff.</p>

<p>Appeal from a judgment entered upon a verdict directed by the court, in favor of the plaintiff, at the Monroe Circuit, and from an order of the Monroe Special Term,'denying a motion for a new trial.</p>

<p>Transfer by a debtor to Ms creditor, of property from which the creditor is to satisfy the debt, the surplus to be returned to the debtor — is not void as a violation of the provisions of section 1 of 2 Revised Statutes, 135,</p> <p>On October 27, 1882, S. N. Wetmore, of Garfield, Pa., being indebted to the plaintiffs in the sum of $957.86, confessed a judgment for that amount, and on ihe same day executed and delivered to the plaintiffs a bill of sale of all the goods and chattels of any kind and nature, including fixtures in his store at Garfield, béing his entire stock of goods and groceries in the store building, together with the store fixtures, in consideration of the sum of $1,000. On the same day the plaintiffs executed and delivered to Wetmore a paper, in which they agreed, in consideration of the bill of sale made to them, that after their debt of $957.88 was paid out of the property mentioned in the bill of sale and their expenses made in the matter, that they would pay the balance left from the sale of the goods to Wetmore or any person to whom he might direct it to be paid.</p> <p>This action was brought to recover the value of the said goods, which had been taken by the defendants under an attachment brought against Wetmore, after the goods had been brought into this State.</p> <p>Held, that the bill of sale was not fraudulent and void upon its face, as being a trust for the use of the person making the same, in violation of the provisions of section 1 of 2 Revised Statutes, 135, but was a good and valid instrument, creating a lien in favor of the plaintiffs to the extent of their claim.</p> <p>McClelland v. Bemsen (86 Barb., 622), affirmed (5 Abb. [N. 8.], 250) followed.</p> <p>That while the defendants had the right to follow the surplus over and above the plaintiffs, claim, they did not have the right to take from the plaintiffs that which was necessary to satisfy their judgment.</p>

<p> Construction of a clause in a certificate issued by an insurance association, designating the person to receive the amount to be paid thereunder. </p> <p>On July 5, 1870, tlie Locomotive Engineers’ Mutual Life Insurance Association issued to H. M. Case a certificate of membership and policy of life insurance, at the foot of which, underneath the signatures, appeared the following: “ All payments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy, will be payable to Mrs II. M. Case or lawful heirs ”</p> <p>At the time the certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter by the name of Inez II. Case. The wife, Amelia M . died September 13, 1878; and subsequently, and on February 8, 1883, the insured married Emma Case, the present defendant; and subsequently, and on May 39,1885, he died leaving Emma, his widow, him surviving, and Inez H.. his only child and lieir-at law Subsequent to his death the association paid into court the sum of $3,933.55, as the amount of benefit due under the certificate.</p> <p>Held, that Amelia M Case was the person intended by the designation Mrs. H. M. Case, upon the certificate.</p> <p>That upon her death the designation lapsed as to her, and that the lawful heir of Case, his daughter Inez, became the person designated as the beneficiary.</p> <p>That as there had been no subsequent designation of any other person the daughter was entitled to receive the money.</p>

Appeal by the defendant from a judgment, entered on a decision rendered at the Monroe Special Term, granting to the plaintiff an absolute divorce, and awarding to her permanent alimony in the sum of $3,750 payable annually, in quarterly payments during her life.

The defendant was treasurer of the Plumbago Oil Company, of which the' plaintiff was a stockholder. She brought this action. to recover the penalty prescribed by statute for the alleged failure of the defendant to make and deliver to her a statement of the affairs of the company, and recovered $1,550.

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

Appeal by the plaintiff from a judgment, entered in Cayuga county on the report of a referee. The action is for alleged conversion by the defendant of plows, castings, etc., to which the plaintiff claims title, as assignee for the benefit of the creditors of Harris.

The case was transferred to this court for review, pursuant to the Code of Civil Procedure (§ 273). The defendants became bail for one Warren, upon his arrest in a civil action, and the plaintiff therein having excepted to such bail, and the defendants having failed to justify the plaintiff, in- the present action as sheriff of Erie county, who made the arrest, was charged as bail.

Appeal by the plaintiff from an order of Ontario County Court, setting aside the taxation of the -plaintiff’s costs and directing the allowance and taxation of the defendant’s costs.

<p>Bight of an insurance company to be subrogated to the rights of a mortgagee to whom it has paid a loss — what satisfaction of the debt by the mortgagee prevents his recover' ing on the policy.</p> <p>This action was brought upon a policy of insurance, issued by the defendant, by which it insured “ William Emerson against loss * * * to the amount of six hundred dollars on his frame ice house * * * Loss, if any, payable to E. L. Thomas (the plaintiff), mortgagee, as his interest may appear” There was no undertaking on the part of Emerson, who owned the property, to insure, and the policy was procured and the premium thereunder was paid by Thomas. The property was destroyed bj fire, in October, and on November 17,1874, the mortgagor paid to the plaintiff the interest upon the bond and mortgage, and deeded the property to him, receiving from him the bond and mortgage upon which the plaintiff had indorsed the following receipt: “ Received by deed in full of the within bond and the debt thereby secured, and the same is hereby surrendered and canceled; but the insurance procured and paid for by E. L. Thomas at his expense and for his protection, and any sum he may collect by reason of the same, is not affected by this surrender, but are and remain his property.”</p> <p>Held, that the policy was to be treated as a contract with the plaintiff for his indemnity only, with no right in the mortgagor to the benefit of it in case of loss.</p> <p>That upon payment of the loss to the mortgagor by the insurance company, it would acquire the right of subrogation pro tanto, and might enforce the mortgage and bond to which it was collateral, to that extent.</p> <p>That such right does not rest on contract, but on principles of justice and con- . siderations of equity, which enable a party, who has been required to pay the debt for which another is primarily liable, to become subrogated to the rights and remedies of the creditor.</p> <p>That if such right of subrogation on the part of the defendant was defeated by the act of the plaintiff, the latter could not recover in this action.</p> <p>That the receipt given by the plaintiff should not be construed as an absolute discharge of the debt, but as an undertaking on the part of the plaintiff not to prosecute the mortgagor, reserving to the plaintiff the right as against the defendant to collect the amount due from it to him upon the policy.</p> <p>That as the receipt, as so construed, would not be available as a defense to the mortgagor in an action brought against him by the insurance company, it did not prevent the plaintiff from maintaining this action.</p> <p>Connecticut Fire Ins. Co. v. Brie By. Co. (73 N, Y., 399) followed.</p> <p>Qumre, as to whether the defendant, in exercising its right of subrogation, might be required to first seek relief against the mortgagor upon the bond.</p>

The action was brought to recover for the alleged conversion of a quantity of personal property, consisting of a store of goods in Mayville, N. Y., to which the plaintiff claims title by virtue of an assignment for the benefit of creditors by Marshall Porter and Edwin T. Speny constituting the firm of Porter & Sperry, made by them to him July 23, 1884.

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

Motion by plaintiff for a new trial founded upon exceptions ordered by the trial court to be heard at the General Term in the first instance. The cause was tried at the Chautauqua Circuit, and a general verdict rendered for the defendant, of no cause of action.

<p>Appeal from an order of the Chautauqua county Special Term allowing costs to be taxed, in the plaintiff’s favor; against the defendant as executor of the last will and testament of Lester Crane, deceased.</p>

<p>Appeal by the city of Rochester and its treasurer from the order of the Monroe Special Term, declaring certain general city taxes and assessments, levied and imposed by the common council of the city of Rochester upon a portion of the lands sold under the proceedings had in the above entitled action to be invalid and void, and enjoining and restraining the mayor of said city from executing and delivering any lease to any holder of certificates of sales for said taxes and assessments.</p> <p>This action was brought for the partition of certain lands owned by the parties, as tenants in common, part of which were located within the city of Rochester. By the interlocutory judgment the city lots were ordered to be sold, and were sold, and the proceeds brought into court and distributed among the parties, except the sum of $1,800 which was held by the order of the court for future distribution among the parties, if the same was not needed, or some part thereof, to pay tax liens levied on the lots by the city of Rochester. A general tax had been levied upon the property, and an assessment for local improvements had been made which, in the aggregate, amounted to the sum of about $1,400. The premises had been sold for the general tax and bid in at one of the sales by C. C. Seymour, who received a certificate of sale, and at the other sale by W. W. Chapin, who also received a like certificate, and at the county sale by Lyman Johnson. Mrs. Seymour paid to the city treasurer the sum of $482.62, the full amount of her bid. Mr. Johnson paid on his bid $229.48. The assessments for local improvements were unpaid at the time of the sale of the lots under the decree in the partition suit, and the city claimed that the taxes were all valid and were enforceable in the mode and manner pointed out by the city charter. By the city charter taxes properly assessed are a lien upon the premises, and collection may be enforced by a sale of the same. Neither the city of Rochester or its treasurer were made parties to this action. After the interlocutory decree was entered in the partition suit, and also after the premises were sold and the report confirmed, it "was referred to a referee to take proof of the several claims, taxes and liens against the lands and proceeds of sale, by reason of said tax certificates, so held by the purchasers, and to report the same with his opinion thereon to the court, and the plaintiff’s attorney was required to give eight days notice to the said purchasers of such reference, and to the city of Rochester and the treasurer of Monroe county. The parties appeared before the referee and proofs were taken as to the mode and manner of making the several assessments and as to all proceedings connected with the sale, which were reported to the court together with the referee’s opinion. By his report he found that all the taxes were illegal and void and thereupon, on notice to the city of Rochester and. its treasurer, the court made an order amending the final judgment of distribution and directing the payment of the said sum of $1,800 to the parties, and declared that all the taxes were null and void and the same were vacated and set aside and the city of Rochester was permanently enjoined and restrained from making, executing or delivering to either Seymour or Chapin any deed in pursuance of the said sale. From that order the city of Rochester and its treasurer have taken an appeal.</p>

After the jury were impanneled the defendant moved that the complaint be dismissed for the reason that it did not state a cause of action, and the same was granted. Judgment being entered thereon the plaintiff appeals.

Appeal by the defendant from a judgment entered in the jVIonroe county court, affirming a judgment of the Municipal Court ,of the city of. Rochester for the sum of $265.30 damages and .$27.32 costs in favor of the plaintiff against the defendant.

The jury found a verdict for the plaintiff, and assessed the value of the. property at forty-five dollars and the damages for detention at seven dollars. At the close of all the evidence the court held that there was no dispute as to the material facts, and as a matter of law that the plaintiff was entitled to judgment, submitting to the jury the question of - damages.

The complaint alleges that the defendant is a druggist selling drugs and medicines at Angola, Erie county, N. Y. That the defendant, by his agent and clerk having charge of his drug store, was requested by plaintiff, through her husband, to compound a certain prescription of medicine made for her by one William Danforth, M. D.; that defendant, by his clerk in charge of said drug store, undertook to put up said prescription; that, in fact, other drugs and medicines were…

In about the month of May, 1882, Edward street, in the city of Rochester, was improved in pursuance of an ordinance of the common council. The grade of the street was established and the improvement completed, in all respects, in accordance with such ordinance. Edward street runs in a northerly direction and at that time terminated, at a high, tight, board fence at the north end.

Case agreed upon and submitted to the court under section 1279 of the Code of Civil Procedure. The defendant, Laura S. Haronn, is the'daughter of the plaintiff’s testator, Milo Kellogg; the parties reside in Monroe county, New York. Defendant made and executed to her father, Milo Kellogg, an instrument, in words and figures following: “ OgdeN, Sej>temher 3, 1872. “ Received from my father, Milo Kellogg, $900, .to be deducted from my part of his estate.

48, in favor of the plaintiff, upon the report of a referee. Michael McCarthy and Jeremiah McCarthy, being the owners of fifteen and sixty-seven one hundredths acres of oil lands in the county of Cattaraugus, conveyed the same to -the defendant March 31, 1876, for the consideration of $,1,565. There was a purchase-money mortgage upon the premises, duly recorded at the time of the conveyance, on which there was due and unpaid the sum of $700. It had been executed by Mi-.

Appeal by Pbilo M. Sbepard from an order of the Erie Special Term remanding Mm to the custody of a sheriff after á hearing had been had on the retnrn to a habeas corpus issued to inquire as to the… Held: that he had been imprisoned upon the order of arrest for more than six months.

The action was brought in the lifetime of David Curtis, who died after this appeal, whereupon Josiah Curtis, his administrator and heir-at-law was substituted as defendant. The action was brought to have a quitclaim deed, dated August 26, 1880, executed by the plaintiff to David Curtis, declared a mortgage, and that the plaintiff be allowed to redeem, or that said David reconvey the premises, reserving to himself a life-estate.

interlocutory judgment in favor of the plaintiff, entered in Genesee county upon an order overruling a-demurrer interposed to the complaint. The action was brought to set aside an assignment made by defendants, Jame H. Jones and Evelyn F. House, individually, and as composing the firm of Jones & House, of their individual and firm property, to the defendant Henry F. Tarbox, for the purpose of paying their individual and joint, debts.

a case and exceptions. The action was brought for slander, and was tried at the Allegany Circuit in October, 1885, where a verdict was rendered for the plaintiff in the sum of $150. The complaint contained three counts; the first and second are for calling plaintiff a thief, and the third for calling her a whore.

The action was brought upon two promissory notes made in the name of the defendants’ firm.

The forged certificate and the statute of the State of Missouri relating thereto are set forth in full in the dissenting opinion of Judge Macombee.

<p>Irregularities in the substituted service of a summons upon an infant in an action of foreclosure — right of the plaintiff to have the judgment and sale set aside in order to enable him to again serve the infant — the purchaser need not be made a party to the action — money received from a party in possession after the first judgment was vacated must be applied on the mortgage — failure of am attorney to return an affidavit taken from the clerk’s office —how he should be compelled to produce it.</p> <p>The premises described in the mortgage, to foreclose which this action was brought, were sold under a judgment entered herein in June, 1880, to the plaintiff, who, on August .13, 1882, sold them to one Bechstein. In the latter part of the year 1882 one of the infant defendants in the foreclosure suit presented to the court a petition, in which the others afterwards joined, objecting to the regularity of, or authority for an order permitting a substituted service of the summons to be made, and asking that the order be set aside. In that proceeding, to which the purchaser, but not the plaintiff, was made a party, the court confirmed a report of a referee and denied the application. Thereafter the plaintiff obtained and entered an order vacating and setting aside the judgment and the deed to him, without prejudice to all proceedings had prior to the application for judgment, as against all the defendants who were then adults, with leave to the plaintiff,- or his grantee, to take such further proceeding as he might be advised against the infant defendants. By virtue of this authority, another service of the summons was made upon the infant defendants, who were properly brought into the action and answered therein, and thereafter the usual judgment of foreclosure and sale was entered.</p> <p>Upon an appeal from this judgment, it was claimed that the purchaser, Bechstein, should have been made a party to the action.</p> <p>Held, that as the service of the summons upon the adult defendants was clearly regular, and the substituted service upon the infants was not vacated, the action was still pending when the additional service was made, and even though Bechstein had by his conveyance secured a transfer of the mortgage, it could still be afterwards regularly prosecuted and continued in the name of the original plaintiffs, under the authority of section 756 of the Code of Civil Procedure.</p> <p>It appeared that the widow of the mortgagor, with her family, remained in the possession of the mortgaged property after the sale and conveyance to the plaintiff, and up to and subsequent to the time of the conveyance to Bechstein. During that period the plaintiff received from her moneys amounting to $1,128,75, over and above commissions paid for collecting the same. By the judgment, the plaintiff was allowed to recover interest upon the mortgage to June 4, 1884, the date of the entry of final judgment.</p> <p>Held, that as the first judgment was vacated, and the plaintiff’s title to the premises under the sale was annulled, the money received hy him from the widow should be treated as received on the mortgage, and should he applied in reduction of the amount due thereon.</p> <p>Upon the adjustment of the costs, the plaintiff was allowed the referee’s fees on the reference of the application made hy the infants to vacate the judgment and set aside the substituted service of the summons.</p> <p>Held, that as the plaintiff was not a party to that proceeding, and as the costs were neither incurred nor paid hy him, he was not entitled to recover them.</p> <p>Upon a motion to compel the plaintiff to restore the amount hy which the judgment had been reduced by the General Term, a reference was ordered to determine as to the validity and justice of that claim. Because of the failure of the plaintiff’s counsel to produce and restore to the files an affidavit made hy the counsel for the respondents, stating facts hearing upon the merits of the application for restitution, an order was made staying all proceedings pending before the referee, if the defendants should so elect, until the plaintiff’s attorney herein should have returned the affidavit to the clerk of the court and obtained his receipt therefor.</p> <p>Held, that the order should he reversed, as it in no manner tended to promote a - just disposition of the controversy between the parties, hut simply suspended their rights and excluded the possibility of determining them without any probable prospect of compelling a production of the affidavit.</p> <p>That if the affidavit was important as evidence, its production should he compelled hy the issue and service of a subpcena duces tecum, directing the person on whom it should he served diligently to search for and produce the paper before the referee; and if he failed so to do, and an examination satisfied the referee or court that the affidavit was in his possession, then it would oblige him to produce it upon the hearing.</p>

This action was brought to recover the damages resulting from an illegal arrest and imprisonment of the plaintiff, made by a policeman pursuant to the direction of one of the defendants’ employees. The justice presiding at the first trial directed a verdict to be rendered in favor of the plaintiff.

Appeal by the defendant from a judgment in favor of the plaintiff, entered in New York county, upon the report of a referee. This is an action brought to recover an alleged balance of account for goods sold and delivered between April 4 and August 11, 1879, to the defendant by one Alexis Poiret, which caus.e o£ action was duly assigned to Louis Dietrich, who was the plaintiff in this action at the time it was commenced.

• This action was brought to recover the damages sustained by the next of kin of Pischel Cohen, in consequence of injuries sustained by him in the public streets of the city of New York. In April, 1879, the defendants granted a license to one Michael Marks to store a wagon used by him in his business, when not in use, in front of his grocery store in Attorney street in the city of York.

Durant from prosecuting two partition suits, one in the State of Iowa and one in the State of Nebraska, until the issues raised in this action could be determined. ' In April, 1885, Charles W. Durant, residing in the city of New York, died seized of certain lands described in the complaint hereinafter mentioned, .situated in New York, Nebraska and Iowa.

Appeal by the plaintiff from an order made at Special Term, modifying a decree in favor of the plaintiff against the defendant Clark, fixing her annual payments for dower, by providing that she should receive “ one-third of the net rents which shall be actually received, and no more.” Upon December 12, 1885, a decree was made in this action adjudging the plaintiff to be entitled to dower in the premises owned by the defendant and described therein, and fixing the sum to…

The - action was brought by a general assignee of one Charles N. Goble to partition lands of his father, George S. Goble, who died, leaving a last will and testament, against Charles N., William S., George S. and Addison S. Goble, his children, and Sarah J. Goble, his widow.

<p>Sight of a lessee to paint signs on, the outside walls of demised premises — when he may do so in the absence of any restrictive covenant.</p> <p>The plaintiff, as a tenant, occupied the first story and basement of a portion of a building owned by the defendants,which formed part of the south-west corner of Broadway and Twenty-seventh street. For the more successful prosecution of his business, the plaintiff caused to be painted on the Twenty-seventh street wall of the first story of the building, which was embraced in the premises demised, certain pictures, signs and devices, which he regarded as suitable and appropriate for the advertising of his wares. The pictures were somewhat original in their application, striking and impressive, and seemed to he well drawn and to have been executed by a de'eorative painter of ability. The defendants having threatened to erase the pictures the plaintiff procured an order restraining them from so doing, from which this appeal was taken.</p> <p>Meld,, that as it was shown that the paintings did not extend beyond the premises leased to the plaintiff, and the lease contained no restriction as to signs, the order should be affirmed.</p> <p>That as the scenes or pictures were germain to the plaintiff's business, and not unseemly or calculated to offend the public eye, being, indeed, rather attractive and amusing, the defendants must submit to the inconvenience, if any, of their continuance.</p> <p>Riddle v. Littlefield (53 N. H., 503) followed.</p>

The indictment contains six counts, the last of which the people elected to abandon on the trial.

The complaint in this action demanded judgment against the defendant on the ground that his testator Gardner Colby was a stockholder of the Illinois and St. Louis Bridge Company, for a certain sum alleged to remain unpaid upon stock issued to said testator, and also, for the value of certain bonds alleged to have been issued to the testator without value.

Appeal by Robert W. Tailer from an order of M . Justice Barrett directing him, as a ¿witness in supplementary proceedings, to answer certain questions which he had been directed to answer by the referee in the proceedings and had declined to answer. The plaintiffs are judgment creditors of Bernard Spaulding, in the sum of $23,000, embraced in four judgments. They procured an order for his examination in supplementary proceedings before a referee.

<p>Right of a city to establish the grade of streets — it is not liable toan adjoining property owner damaged thereby— nor is it obliged, to use for filling the road-way a material impervious to water.</p> <p>This action was brought by the plaintiff, the owner of a lot on Ravine street, in the city of Kingston, to recover damages alleged to have been occasioned by the act of the defendant in illegally changing the grade of Ravine street so as to cause large quantities of water to flow upon the plaintiff’s lot. It appeared upon the trial that the plaintiff, after obtaining title to the lot, built a house upon it, with a cellar under the sidewalk, as it then was, which was covered by flagstones; that thereafter an ordinance was duly passed establishing the grade of the said street, and that subsequent thereto the said street was graded in accordance therewith, and an assessment for the cost of the work was laid and completed. The plaintiff gave evidence tending to show that since the grading of the street water had come into her house and injured it, and that this had never happened before the grading.</p> <p>Held, that an order dismissing the complaint should be affirmed upon the authority of Urquhart v. OgdensbUrg (91 N. Y., 67); Lynch v. Mayor (76 id., 60).</p> <p>Urquhart v. Ogdensburgh (97 id., 238); Byrnes v. Gohoes (67 id., 204); Noonan v, Gity of Albany (79 id., 470); Seifertv. Brooklyn (101 id., 136) distinguished.</p> <p>The plaintiff claimed that the road-way was filled with broken stones and fragments of stones, and that it was the percolation of water through these stones and fragments which caused the injury.</p> <p>Held, that the fact that fragments of stone instead of clay, or some such material, was used did not make the city liable for the damages sustained.</p> <p>That the city was not hound to use impervious material for filling in its streets,</p>

The action was brought by the plaintiff, the assignee and owner of two of the leases in fee, known as the Yan Rensselaer leases.

Appeal by defendants from an order denying a motion.to set aside a verdict rendered at the Albany Circuit, in favor of the plaintiff for $1,250, and from the judgment entered on the verdict.

Lawrence county, overruling a demurrer interposed by the plaintiff to the third defense set up in the defendant’s answer. The action was brought against the defendant as a trustee of the Clifton Mining Company, a corporation organized under the act of 1848, for the incorporation of mining and other companies, to recover the amount of an aliened debt of the company, as a penalty for not making an annual report of the capital paid in, and the debts due from said company.

<p>General assignment — is not invalidated by a failure to prefer the wages due to employees — 1877, chap. 466, see. 29, as amended by chap. 328 o/"1884.</p> <p>A general assignment, made by an insolvent debtor for the benefit of Ms creditors, need not contain an express provision giving the wages and salaries of his employees the preference over other debts required by section 29 of chapter 466 of 1877, as amended by chapter 328 of 1884.</p> <p>Richardson v. Herron (39 Hun, 537) and Burley v. Hartson (40 id., 121) followed.</p>

The board of education, the relator in this proceeding, was organized under and by virtue of chapter 55 of the Laws of 1881. The statute under which this controversy arises is chapter 298 of the Laws of 1886, entitled, “An act to provide for borrowing money upon the credit of the city of Hudson, to erect a public school building in said city, and procure site therefor.” Section 1 of this act reads as follows : Section 1.

to compel respondent to audit, allow and provide payment for a bill ¡presented by relator- to said board, of the sum of forty-two dollars and fifty cents.

<p>Note given by a husband to his wife for money loaned — void when, part of the consideration is an agreement to live apart — requests for findings of fact as provided in Code of Giml Proceedure, section 1033 — when they may be passed on by the referee after the delivery of his report — they must state propositions of fact, and not the evidence tending to establish them.</p> <p>This action was brought by the plaintiff, as the general assignee of one Morris King, to recover property seized under an attachment issued in an action brought by the defendants, judgment creditors of King, against King. The defendants .claimed that the assignment was fraudulent and void as to King’s creditors. By the assignment, the wife of the assignor was preferred in the amount of a promissory note given by the assignor to her for $3,000, dated January 3, 1883.</p> <p>The referee, before whom the action was tried, found, as to this note, that in May, 1881, the wife commenced an action against King for divorce; that at that time they were, and for six months had been, living apart from each other; that in the same month it was agreed that the action should be discon, tinued; that they should live separate and apart from each other, and that, in consideration thereof, he would pay her $3,000; that the action was thereupon discontinued and the money paid to the wife; that she deposited the money in , a bank; that during the latter part of 1881 the wife visited her husband in Indiana, where he was carrying on business; from that State they returned to Ballston as husband and wife, and were living together on January 1, 1882, when she loaned the $3,000 to her husband, who, a few days afterwards, gave (o her the note in question, dating it January 2,1882; and that they still continue to live together as husband and wife.</p> <p>The referee was requested to find that the note was not a valid claim against the assignor.</p> <p>Held, that the referee erred in refusing to do so.</p> <p>That even if it were assumed that I he action for divorce was commenced in good faith and upon reasonable grounds, and that the agreement to discontinue it furnished a meritorious consideration for the note, yet as the wife was subsequently, at her own solicitation, restored to her proper marital relation^, the consideration for the money paid failed.</p> <p>That as the agreement to live separate and apart from each other, which was a part of the entire consideration, was an illegal one, the whole agreement was void.</p> <p>Upon the submission of the case to the i'eferee, the attorney for the defendants submitted to him a statement of the facts which he deemed established by the evidence, with a view of obtaining his rulings upon them, as provided by section 1023 of the Code of Civil Procedure. This paper having escaped the notice of the referee until after he had made and delivered his report, he, on his attention being called to it, noted on the margin thereof the disposition he made of each proposition and delivered it to the defendants’ attorney, who inserted the same, with his exceptions to the adverse rulings of the referee, in the appeal book as part of the case and exceptions.</p> <p>Held, that the requests and refusals of the referee, and the defendants’ exceptions to them, were properly brought before the Appellate Court.</p> <p>The court, after referring to the language used in the said section 1023, requiring the attorney to present, in the form of “ distinct propositions of fact,” a “ statement of the facts which he deems established by the evidence,” and saying that the propositions must be in the form of facts established, and not in the form of the evidence tending to establish them, and stating that it would be hazardous to attempt to formulate any general rule beyond what the present ease strictly required, proceeded to consider the requests made in this case, and held that as to some of them the referee erred in refusing to pass upon them upon the ground that they were findings of evidence merely.</p>

<p> Sight of a creditor to enforce either one of two- securities, as may be most to Ms advantage. </p> <p>This action was brought to foreclose a mortgage, dated November 28,1883, given to the plaintiff by the defendants Clark & Kline upon their “brewery lot” to secure the plaintiff for moneys loaned and notes and obligations made by Clark & Kline, held or indorsed by the plaintiff, “provided, however, that said liabilities shall at no time exceed six thousand dollars, exclusive of costs and expenses; and, to the extent of six thousand dollars, this conveyance shall be a continuing security for any amount that may, at any time, be due said Morris.” On March 12, 1883, Clark & Kline gave the plaintiff a mortgage upon other property for $16,000 to secure the plaintiff, as their indorser, relying upon which the plaintiff indorsed their notes to the amount of $14,500. In addition thereto the plaintiff discounted a note for $5,000, made by them and indorsed by Mary McDonald, which became due November 30, 1883.</p> <p>On December 3, 1883, Clark & Kline made a general assignment for the benefit of their creditors, m which a preference was specified for the McDonald note. Thereafter, and on March 6, 1884, the assignees agreed to sell to the defendant Fales, the real estate of Clark & Kline incumbered by the mortgages above men tioned and others, for the price of $35,000, upon the further agreement that the assignees should, from the said $35,000, pay the two mortgages held by the plaintiff. The assignees having paid the debt secured by the $16,000 mortgage, and the note indorsed by McDonald, claimed by the iffaintiff to be secured by the mortgage upon the brewery,'but they failing to pay a $4,000 note, also secured thereby, the plaintiff brought this action to foreclose it.</p> <p>Held, that a claim, made by the defendant Fales, that the $5,000 paid upon the McDonald note should be applied in reduction of the $6,000 limit fixed by the brewery mortgage could not be sustained.</p> <p>That the plaintiff had the right to use the two securities to his own best advantage, and that he could not be compelled to foreclose his mortgage until he had realized all he could upon the $5,000 note, under the preference given it in the assignment, so as to bring the balance secured by the brewery mortgage within the $6,000 limit fixed by it. .</p>

The action was brought upon an undertaking given to procure an order of arrest against one Ileineman Hamburger, who was alleged to have assigned the said undertaking and his claim thereon, to the plaintiff in this action. The answer, in addition to certain denials, alleged as a counterclaim and set-off, a judgment recovered against Hamburger previous to the commencement of the action in which he was arrested.

<p>Appeal from a judgment in favor of the plaintiff entered in Westchester county upon the trial of this action by the court without a jury.</p> <p>This action was brought to foreclose a mechanics’ lien under the provisions of chapter 342 of 1885. The plaintiffs were sub-contractors. The original contract was entered into by the defendant Harriet E. Roberts, the owner of the land, through her husband, the defendant Lewis, with one Frank Lyons.</p>

Appeal by the petitioner from an order entered in Westchester county awarding to the claimants, Charles A. Cammann and others, the sum of $1,355.71, for damages caused by the explosion of a compound of nitro-glycerine which had been stored upon land belonging to the city of New York,» for the purpose of being used in the construction of the aqueduct.

<p>Evidence — the rule requiring the attention of a witness to be called to the time and place of making a contradictory statement does not apply to statements contained in apaper signed by the witness</p> <p>Upon the trial of tlie defendant for manslaughter in the second degree it was proven, upon the part of the people, that the deceased, one Gilmore, solicited the defendant to shoot at a tin tomato can placed upon his (Gilmore’s) head; that the defendant, after having twice succeeded in hitting the can, and being urged by Gilmore to try once more, attempted to do so but failed, shooting Gilmore through the head and killing him. A witness, called by the people, who had testified to facts tending to show that the death of Gilmore was the result of the'defendant’s shot, was asked if Gilmore, at that shot, did not raise; his head and replied that he did not know. He was then asked if he did not so testify before the coroner’s jury and he replied that he did not. Hig examination before the coroner having been shown to him, and he having admitted the signature thereto to be his, his testimony, as given therein, was offered in evidence, but was not received, the court holding that the attention of the witness must be first called to anything in it.</p> <p>Held, that it was error to so rule.</p> <p>Bomertze v. East River National Bank (49 N. Y., 577).</p>

This action was brought to recover damages for injuries sustained by the plaintiff in a collision upon the railway of the. defendant, while a passenger upon one of its regular trains.

<p>Contract for the employment of convicts — the contractor is liable to one injured by defects in the machinery furnished by him.</p> <p>The plaintiff, a convict in the Kings County Penitentiary, was let and farmed out by the county authorities to the defendant, a corporation, which hired the services and labor of a large number of convicts who were employed by it in making boots and shoes. The prison authorities were, by the terms of the contract, to enforce the performance of the day's work, and the defendant was to furnish “all the tools, machinery and stock necessary” for th.e employment. The plaintiff, who had been injured while using one of the machines designed to mould the soles of shoes, brought this action to recover the damages thereby sustained, alleging that the machine by which he was injured was out of repair and dangerous, and that the defendant had notice of its condition.</p> <p>Ileld, that while the usual relation of master and servant did not exist, because the labor furnished was compulsory, yet the defendant owed a duty to the convict which required him to furnish machinery fitted to and sufficient for the work, and to keep the same in constant repair.</p> <p>That the plaintiff was the defendant’s workman, though his wages went to the ' county of Kings.</p>

The action was commenced January 2, 1886, and was brought to recover from the defendant the sum of $940.20 paid by the plaintiff to the defendant for local assessments imposed on her premises for the grading of Haseco and Irving avenues in the' village of Port Chester. The complaint also asks for judgment that the assessments maybe declared illegal and void and be vacated and set aside.

” “On July 23, 18S4, the ITobohen Land and Improvement Company (a New Jersey corporation) entered into a contract with Ward, Stanton & Co., shipbuilders of Newburgh, N. Y., for the construct tion of two iron ferry boats to cost about $150,000. Ward, Stanton & Co. then wrote a letter to the Phoenix Iron Company, stating that they had taken a contract to build the boats in question and required about 100 tons of iron angles, and asking the price thereof.

The summons and complaint both named the county of Orange as the county in which the plaintiff desired the trial. The plaintiff resided in the county of Dutchess, and the defendant in the county of Albany. The defendant having demanded a change of the place of trial to Albany county, the plaintiff served an amended complaint designating Dutchess, as the trial county, but did not amend his summons.

Appeal by the defendant from a judgment in favor of the plaintiffs, entered in Kings county upon andoverruling a demurrer interposed to the complaint upon the ground that it did not state a cause of action.

<p>Appeal from an order, made at tlie Kings county Special Term, staying all proceedings in this action until payment of the costs of a former action, for which a judgment had been entered therein in favor of the defendant individually.</p>

Justice Dykman, bearing date the 6th day of March, 1886, in a proceeding to compel James Henderson, Jr., to deliver a certain book belonging to the office of supervisor to complainant, as the successor of said Henderson, by which order said proceeding was adjourned to March 13, 1886, for the purpose of taking proofs of the parties as to the delivery of said book to James Henderson, Jr., and as to the whereabouts and custody of said book.” The applicant, Daniel J. McGrory, as…

■ Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after an order had been made at the Kings County Circuit dismissing the complaint and directing that the judgment be suspended until the hearing should be had.

Appeal by the defendants from an order made September 27th, 186, at the Kings county Special Term, by the justice before whom the action was tried, granting a new trial, pursuant to section 1010 of the Code of Civil Procedure.

The indictment alleges that “ the said William T. Monteverde, on Sunday, the ninth day of May, in the year of our Lord one thousand eight hundred and eighty-six,-and on divers other Sundays between that day and the day of taking this inquest, at the said town of Newtown, in the county of Queens aforesaid, was the owner, occupant, proprietor or lessee of a certain park and premises there situate (a more particular description of which is unknown to the grand jury aforesaid),…

<p>Appeal from a judgment entered in Kings county, upon the trial of this action by the court without a jury, dismissing the complaint upon the merits.</p> <p>The action was brought to foreclose any interest that Frank Tousey and the defendant Walker as his assignee under a general .assignment, might have in four printing presses of the value of $8,000.</p> <p>In December, 1881, the plaintiff agreed to sell Frank Tousey the four planting presses on about eighteen months’ credit, Tousey giving his notes for the purchase-price. It was also agreed in the contract that Tousey was to give security for the payments made by note, and until such security was given the title to the presses was to remain in plaintiff. After Tousey had been in possession of the ■presses nearly three years and had paid on account about $6,700 he made a general assignment to defendant Walker. Walker took possession of the presses, claiming to be the owner thereof, as assignee. The plaintiff, in order to establish its title to the presses, brought an action of replevin, in which judgment was ■entered in its favor. Thereafter, the defendant Walker claiming to have some interest or equity in said presses or some right to the moneys theretofore paid, the plaintiff brought this action to foreclose any and all equities, and procure a sale under the direction of this ■court. The justice below dismissed the complaint upon the ground that the contract was one of conditional sale; that the replevin action was an election on plaintiff’s part to enforce a forfeiture, and that plaintiff’s remedy, if any, was an action at law for damages.</p>

<p>Appeal from an order, made at the Kings County Special Term, directing the plaintiff to furnish a bill of particulars stating the particular grounds on which the devise to the defendants Warded, referred to in the complaint, is therein claimed to be void.</p>

Appeal by tlie defendants from a judgment against them entered upon a verdict in favor of tlic plaintiff, directed by the court at the Kings County Circuit.

<p>Appeal from a decree of the surrogate of Kings county, denying an application for the issue of letters of administration upon the estate of one Henry Nolting.</p>

<p>Cross-Appeals : One by the plaintiffs from an order denying tbeir motion to refer the cause, and one by the defendants from an order subsequently made directing the trial of the cause by the court without a jury, each of which orders were entered in Kings county.</p> <p>This action was commenced January 10, 1880, by Theodore Brinckerhoff, in behalf of himself and all other stockholders of “ The National Bank of Eislikill,” for an accounting by, and ultimately to recover from, the defendants, who were the directors of the bank, the losses sustained by the.stockholders by the destruction of the value of their stock, also in being compelled to pay an assessment against them, as such stockholders, of seventy per cent of the par value of such stock, caused by the misconduct and negligence of the defendants in performing the duties which they undertook when they assumed the obligations of their trust and for which duties they were paid by the bank</p> <p>Defendants interposed a demurrer to the complaint, which was sustained by the Special and General Terms (23 Hun, 237), but reversed by the Oourt of Appeals. (88 N. Y., 52.) The defendants then removed the action into the United States Supreme Court by writ of error. That court dismissed the writ and remanded the canse. Subsequently eight other stockholders, applied by petition, upon notice to both parties, to become parties plaintiff upon the record with Mr. Brinckerhoff. Defendants answered the petition and contested the application. An order was granted declaring them parties and directing an amendment of the summons and complaint.</p> <p>The cause came to trial March 24, 1884, when the plaintiffs were nonsuited and the complaint dismissed on the ground that the cause of action was barred by the three years’ limitation of the Code, (Sec. 394). From the judgment entered against them on the dismissal plaintiffs appealed to the General Term, where the judgment was affirmed. (34-Hun, 352.) Plaintiffs then ayydaled to the Court of Appeals, where the decision was reversed and a new trial directed, the court holding that the cause of action was governed by the ten years’ limitation of the Code. (Sec. 388 ; 99 N. Y., 185.) On the cause being remitted into this court, the plaintiffs, upon affidavit, moved for an order appointing a referee to hear and determine the action, with leave to the referee to sit in any county in the State, o:i the grounds: First. That the trial would require the examination of a long account, and did not involve the decision of any difficult question of law; and, second, that the action was triable by the court without a jury. The defendants read an affidavit in opposition. The court denied the motion. The plaintiffs’ appeal is from this order. The defendants placed the cause upon the Dutchess Circuit calendar, December, 1885, and moved its trial by a jury. The plaintiffs thereupon moved that the cause be stricken from the circuit calendar, to be-tried as an equity action by the court without a jury. The plaintiffs’ motion was granted, with leave to the defendants to apply for an order framing issues as to the alleged misconduct to be tried by a jury. The defendants’ appeal is from this order.</p>

Appeal from a judgment in favor of tlie defendant, entered in Kings county upon the trial of this action by'tlie eourt without a iury-

.page 386. On September 12, 1883, Tristram B. Allen, son of Tristram Allen, executed an instrument by which he sold, assigned, transferred and set over unto the Stationers’ Board of Trade, of the city of New York, a part of his interest in and to the said mortgage which was made by Philip Hart and Barbara, his wife, to Wallach and Hoag, the executors of Tristram Allen, “ To- have and to hold the same unto the Stationers’ Board of Trade to the amount of four hundred ($400)…

<p>Mutual aid association —18; 9, chap. 189 — no claim can he made against the company• unless a certificate has been issued designating the person to receive the payment.</p> <p>Chapter 189 of 1879, which incorporated the defendant for'the purpose, among others, of aiding, assisting and supporting members or their families in ease of want, sickness or death, authorized it to create, manage and disburse a beneficial fund sufficient to pay all losses and expenses incident to the corporation, ■ for the relief of members and their families, under such conditions and regulations as might be adopted by the grand lodge; and that such beneficial fund might be set apart “to be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, managing and disbursement of the same, as well as the person or persons to whom, and the manner and time in which, the same shall be paid on the death of a member, shall be regulated and controlled by the rules and by-laws of the said grand lodge.” The only by-law adopted by the defendant relating to this subject provides that each member of the .order shall be entitled to a mutual aid certificate, which shall set forth the name and good standing of the member, the amount of benefit to be paid at death, and to whom payable, and that such certificate shall represent $2,000.</p> <p>Upon the trial of tliis action it appeared that the plaintiff’s intestate, who was a member of the defendant corporation in good standing, died in February, 1886, without having received the certificate provided for in the said by-law.</p> <p>Held, that the lack of such certificate was fatal to the plaintiff’s action.</p> <p>That as the statute itself designated no beneficiary, and as the defendant had, in accordance with the direction of the statute, provided in its by-law that the person to whom the fund should be payable on the death of a member shall he the person named in the certificate, such designation was a condition precedent to the defendant’s liability.</p>

<p>Contract — when a recovery cannot be had thereon, unless full performance of all the plaintiff was required to do thereby be shown.</p> <p>This action was brought to recover for work done, under a special contract, by which the plaintiff agreed to remove the earth from a portion of the defendants’ quarry, constituting an area of sixty feet in breadth and one hundred and twenty-five feet in length. The defendants denied that the plaintiff had fully performed his contract, and gave evidence tending to show that when the plaintiff quit the work there was a part of the said area, from three to five feet in width, which had not been excavated; that the defendants called the plaintiff’s attention to it and insisted that he should excavate it, and that he refused to do so.</p> <p>Upon the trial the court charged that if there had been a total failure on the part of the plaintiff to perform the contract so that he had not done any work at all, or in case he should have done it in such a manner as would not have benefited the defendants, he could not recover; but, that, if they should find that he substantially complied with the terms of his contract, he was entitled to recover for the work done under it; and it refused to charge, as requested by the defendants’ counsel, that the jury must find that the plaintiff had performed his contract, as it was made, before he could recover upon it.</p> <p>Held, that it erred in so refusing.</p> <p>Smith v. Brady (17 N. Y., 173) followed, and Glaaius v. Black (50 id., 145); Johnson v. Be Peyster (Id., 666); Phillip v. Gallant (62 id., 256) distinguished.</p>

81, and from an order denying the defendant’s motion for a new trial made upon the minutes of the justice before whom the action was tried. The legal proposition presented by this appeal arises upon two exceptions, one taken to the refusal of the court to grant a nonsuit and the other to the denial of the defendants’ motion at the close of all the evidence asking the court to direct a verdict in the defendants’ favor.

Appeal by the defendants from an order of the Erie county Special Term permitting the plaintiff’s attorney to prosecute the action for the purpose of recovering his costs after settlement and discontinuance of the action without his consent. The deceased lost his life by the burning of the defendants’ factory, in which he was at that time engaged as their servant.

Appeal by the defendant, the Moravia Foundry and Machine Company from an order of the Monroe Special Term directing the distribution of the surplus proceeds in a mortgage foreclosure action, after the payment of the two mortgages first mentioned and described in the complaint and in the final decree. The plaintiff and the defendants, the Watertown Steam Engine Company and Iienry F. Steele, appeared on the hearing as respondents and ask that the order be affirmed.

The plaintiffs, in Jujy, 1883, sold and delivered to the defendant two carloads of cattle at the fixed and agreed price of $3,207.60; the defendant thereupon made and delivered his negotiable promissory note for that sum, payable twenty days after date, with use. ' On the 17th day of July, 1883, the defendant purchased of Uhlman & Block one car load of cattle at the agreed price of $1,296.27, and thereupon the defendant delivered to them his check for that sum, payable on…

Appeal by the plaintiff from a judgment entered in Yates county, upon the trial of this action by the court without a jury. The following opinion, upon which the judgment was affirmed by the general Term, was delivered by Mr. Justice Rumsey in the court below: On an appeal to the General Term by the plaintiff the cause was argued by:

<p>Appeal from an order of the Wayne Special Term, adjudging Henry Johnson guilty of a contempt, and ordering a reference to ascertain and determine the loss or injury occasioned by his contempt.</p>

<p>Practice — upon whom papers must be served in order to stay proceedings on an appeal from a justice's judgment — Gode of Oivil Procedure, sec. 3050, 3051.</p> <p>Where a party, appealing from a judgment rendered against him in an action brought in a .1 ustice’s Court, desires a stay of execution he must deliver ilie written undertaking required by section 3050 of the Code of Civil Procedure to the justice or his clerk, and must also serve, upon the respondent, with the notice of appeal, a copy of such undertaking with a notice of its delivery to the justice or his clerk and if an execution has been issued, he must also serve a copy of the undertaking, either certified by the justice or accompanied with an affidavit showing that it is a copy and that the original has been duly filed, upon the officer holding the execution.</p> <p>The service of the copy of the undertaking upon the officer holding the execution does not relieve the appellant from the duty of also serving it upon the respondent.</p>

<p>Appeal from an interlocutory judgment entered, in Erie county, overruling a demurrer to the plaintiff’s complaint.</p>

The 'action was brought to redeem a landau from a mortgage, arising out of the following facts : On the 6th day of September, 1884, the plaintiff purchased of the defendant a landau, at the price of $900, paid $500 and gave sixteen promissory notes for twenty-five dollars each for the balance of the purchase-price, payable to the order of defendant at the First National Bank of Auburn, with interest, one of which became due each of the following sixteen months, and to secure…

Appeal by the plaintiff from a portion of a judgment entered in Allegany county on the report of a referee. The action was brought to foreclose a mortgage made by the defendant, the Tonawanda Valley and Cuba Railroad Company, to James D. Fish, as trustee, to secure the payment of its bonds to the amount of $500,000; the plaintiff was afterwards substituted in' place of Fish as such mortgagee.

The action was brought against the appellant and the Rochester Savings Bank, to require the former to execute to the plaintiff a check or order on the bank, and for direction to it to pay an amount standing in the bank to the credit of William- McGregor, the defendant’s intestate. The appellant alone defended. The trial court directed judgment for such relief in favor of the plaintiff j from which this appeal is taken.

<p>Appeal from an order of the Special Term, granting a peremptory writ of mandamus, requiring the appellants to recognize the relator as a teacher in ward school No 81, and to permit her to preform her duty as such teacher, and to deliver to her such books and papers, in their possession or under their control, as may be necessary to enable her to perform her duty as such teacher.</p>

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

<p>Appeal from an order denying a motion made by one Hotchkiss, a judgment creditor of the defendant, to vacate an order entered in •this action appointing a receiver of the defendant.</p>

On the 25th of April, 1865, the plaintiffs made a lease for the term of ten years, from May 1,1865, to one Daniel Darrow, of Pier No. 7, East River, at an annual rent of $5,000, payable quarterly. In October, 1868, the defendant took an assignment of the lease, with the consent of the comptroller of the city, and entered into possession. This action was brought to recover $1,250, rent due February 1, 1875, and $1,250 rent due May 1, 1875.

<p>When an unauthorized• use of bonds■ constitutes, a. conversion thereof— the right to recover therefor passes with an assignment of the bonds.</p> <p>This action was brought to recover the value oí' two- bonds, of $1,000 each, loaned by Thomas Davenport, as the executor of an estate, to the firm of Davenport, Johnson & Co. to use temporarily, upon the agreement of that firm to return them to him when called for. The bonds were delivered to the defendant, a member of the firm, but they were not passed over to or used by it, but were deposited by him as collateral security for the payment of his individual note.</p> <p>Held, that this unauthorized disposition of the bonds constituted a conversion.</p> <p>That the fact that this use was made of the bonds before the time at which the executor sold and transferred the bonds to the plaintiff, without specifically assigning to him a right of action for their conversion, did not prevent the plaintiff from maintaining this action.</p>

<p>Bemoml of an officer of the fire department •of Bew York for incapacity— a mere error of judqment will not support the charge.</p> <p>Tlie relator, the second assistant chief of the fire department of the city of New York, was removed for alleged incapacity upon the ground that, hy unneces sarily sending out a signal at a fire hy which more engines and trucks were called than were necessary — thereby uncovering and depriving of all fire extinguishing apparatus, and seriously endangering life and property in, a large and important section of the city — he had violated a general order of the department, which declared that an officer should “he responsible for any want of judgment, skill, neglect or failure, which may muse unnecessary loss of life, limb or property." It was not claimed that any actual loss of life, limb or property had occurred hy reason of the signal so given, nor that the relator did not successfully extinguish the Are, and it was shown that the question as to whether or not the signal should have been given was one upon the answer to which firemen of skill and experience might differ.</p> <p>Held, that the general order only included cases in which an actual loss had been caused.</p> <p>That as the charge of incapacity rested upon this single act, which was neither a violation of duty nor conduct injurious to the public welfare, nor'the cause of loss of life, limb or property, it was hut au error of judgment, which did not authorize the removal of the relator.</p>

On the 4th of February, 1885, bought and sold notes were exchanged between the plaintiffs and the defendants in the following language: “ Sold for account of Seixas & Pardo, to George P. Ockershausen & Co., 150 hds. of choice Ponce molasses at 30c. per gallon, cost and freight, to be shipped either sail or steam, whichever quickest.

<p>Action against a banlc — it cannot be compelled to pay money into court to abide the event of the action, on the ground that it is insolvent.</p> <p>In this action, brought by the plaintiff as receiver of the property and effects of one Clark, to recover from the defendant, The Metropolitan Bank, $1,100, being a portion of $5,000 alleged to be in the possession of the bank, the bank denied that the said sum, or any part thereof, belonged to him, and alleged that the money was its own. Upon an affidavit stating that the bank was insolvent — which statement was denied by it — the plaintiff obtained an order requiring the bank to forthwith pay into court the sum of $1,400 to the credit of the action, to abide the event thereof.</p> <p>Held, that the order should be reversed, as the court had no power to make it.</p>

The proceeding was brought to compel Mr. Jewett, as receiver of the Erie Railway, to pay to the petitioner from the funds in bis hands as such receiver the sum of $38,250, which they alleged to be due as rent for certain portions of a telegraph line from April 1, 1865, to January 1, 1878. The proceeding was begun in February, 1878. Upon the bearing before the referee it was shown that the receiver had been discharged on December 30th, 1879.

<p>Bight to open and close the case — a judgment will be reversed uecause of am, error of the trial court in deciding it.</p> <p>The plaintiff set up in his complaint, in hmc verba, a promissory note, and alleged that it was given as evidence of an existing indebtedness, stating the circumstances under which such indebtedness arose. The defendant admitted the making of the note, and alleged facts tending to show that nothing was due thereon. Upon the opening of the case by the plaintiff at the trial, he stated that he relied solely upon the note, the making of which was not denied.</p> <p>Held, that, the court erred in denying a motion made by the defendant to be allowed to open and close the case. ’</p> <p>Oonselyea v. Swift (108 N. Y., 604) followed; Olaflin v. BaeVe (28 Hun, 204) distinguished.</p>

The plaintiff brought this action to recover from the defendants the sum of $50,000, as damages for trespass. The plaintiff, as assignee of H. W. Stehr & Co., claimed certain property, taken by the sheriff on January 14,1885, under an attachment issued in an action brought against H. W. Stehr & Co., and sought to hold the defendants, who had given an indemnity bond to the sheriff, liable for the damages.

Appeal by the mayor, aldermen and commonalty of the city of New York from an order reviving- the above entitled proceedings, and reducing an assessment by deducting the sum of $3,714.22 therefrom.

Appeal by Pleasant H. Pendleton and others from an order affirming the report of a referee, disallowing a claim presented by them to the receiver of the defendant and against its assets.

<p>Motion by the defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term.</p>

<p>Appeal by the plaintiff from an order vacating because of fraud, a judgment, entered in this action on November 9, 1866</p>

<p>Appeal from a judgment entered upon a verdict in favor of tlie defendant rendered at the circuit.</p>

<p>Appeal from an order denying a motion made by Antonio Cuneo, who was not a party to the action, to be relieved from a purchase made by him at a sale under a judgment of foreclosure entered herein.</p>

Appeal by Mary Elizabeth Penniman from an order confirming the report of a referee, and containing further directions concerning the administration of a trust in real estate, and from an order directing a reference to take proof of and report the expenses incurred in the proceeding which resulted in the first order.

Motion by the defendant for a new trial bn exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed for the plaintiff. This action was brought by the plaintiff to recover the fees alleged to be due to him, and which had been adjudged and settled and allowed as bis fees under an attachment, issued in an action brought against the defendant in the above entitled action.

<p>Practice — an action to procure equitable relief cannot be maintained, when the relief sought has already been awarded by a judgment in another action between the same pa/rties — a demurrer will not, however, be sustained if the facts show a right to legal relief— Code of Civil Pro., sec. 488 — damages occasioned by the violation of an injunction may be recovered by action or in proceedings for contempt, at the election of the party injured.</p> <p>In an action brought by the-plaintiff in this action against the defendants herein, a judgment was entered, in 1874, establishing the existence of the trade-mark mentioned in the complaint in the present action, and the plaintiff’s title thereto, and perpetually enjoining the defendants from violating the trademark. The complaint in the present action alleged the existence of the trade-mark and its ownership by the plaintiff, the recovery of the judgment and the violation of its provisions by the defendants after the entry thereof, whereby the plaintiff had sustained damages, and prayed for an injunction enjoining the defendants from violating the trade-mark and for the recovery of the damages sustained.</p> <p>Held, that the court erred in sustaining a demurrer to the complaint interposed by the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>That while the action could not be maintained in so far as the plaintiff sought to obtain equitable relief similar to that already obtained in the former action, yet it could be maintained as an action at law to recover the damages which the plaintiff had sustained by reason of the subsequent trespasses upon its rights committed by the defendants.</p> <p>That the fact that the plaintiff might have treated the defendants’ acts as a violation of the injunction, and have instituted proceedings to punish them for contempt, in which the damages sustained would have been included in the fine, did not prevent it from maintaining this action, as the proceeding for contempt was not intended to be in any way a substitute for the right to proceed by action, but was intended to be a concurrent remedy.</p> <p>That although the pleader in drawing the complaint undoubtedly framed the same for the purpose of obtaining equitable relief, and that was intended to be the gravamen of the action, and although he was not entitled to such relief, yet as the complaint contained allegations which entitled the plaintiff to legal relief, a demurrer thereto would not be sustained.</p>

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

Appeal by Jolm Townskend from an order denying a motion to vacate an ex parte order allowing proof to be supplied to a judgment-roll of the service of the summons in the action.

<p>Motion for a new trial by tlie plaintiff, upon exceptions ordered to be heard at the General Term in the first instance, after a dismissal of the complaint at the circuit.</p>

<p>Appeal from a judgment entered upon a verdict directed for the defendant, 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>