Volume 52 — New York Supreme Court Reports

Appeal by Granger Griswold, proponent, from a decree of tlie surrogate of Livingston county, refusing probate of an instrument propounded .as tbe will of Potter Austin, deceased.

Appeal from an order made at the Monroe Special Term, and entered in Wayne county, quashing the writ of certiorari issued herein

Nr tbis action, brought by a stockholder of the defendant corporation to obtain a judgment dissolving it, there were four appeals : First. Appeal from a judgment entered upon a decision of the Monroe Special Term declaring the defendant corporation dissolved. Second. Appeal from a Special Term order convicting the defendant’s attorney, John Yan Yoorliis, and its secretary, Edward G. Miner, of a contempt. Third.

<p><9ffer of judgment — Code of Oivil Procedure, §'378 — ineffectual unless it complies with the statute in all substantial respects.</p> <p>in tills action, brought to recover the sum of $375, with interest thereon from September 4, 1884, besides costs, the defendants, after interposing an answer ¡setting up a counter-claim, served'an offer of judgment for the sum of $150, with costs to date.</p> <p>Meld, that the offer was ineffectual to prevent the plaintiff from recovering costs, .although the verdict obtained by him was for only the sum of $113.50, as it did inot comply with section 738 of the Code of Oivil Procedure, requiring that the pffer 'be to allow judgment “ for a sum or property, or to the effect therein specified, with ¡costs, ” in that it subjected the plaintiff to the costs of entering judgment upon it, and of issuing the execution and entering the satisfaction.</p>

<p>Appeal from an order of the Erie Special Term, denying a motion for a mamdamus.</p>

<p>Appeal from an order of tbe Erie Special Term setting aside tbe judgment of divorce granted herein by default, and other proceedings taken by and in behalf of the plaintiff, on terms.</p>

<p>Sight of am, executor to a Men on a legacy for an amount dm from a legatee to the testator — when such right may be exercised, as to a debt which is barred by the statute of limitations — Code of Owü Procedure, § 380.</p> <p>In this proceeding, instituted by an executor to have his accounts finally settled, it appeared from the account that there was in his hands the sum of $810.96, being the amount unpaid of a legacy given by the will to the appellant, and that the appellant was also entitled, as one of the next of kin, to a distributive share of the estate; that among the assets in the. hands of the executor were two claims against the appellant, consisting of a promissory note made by him for $367, with interest from April 7, 1875, and a justice’s judgment recovered against him on August 81,1877, for $67.33, each of which was wholly unpaid, and each of which accrued more than six years prior to the death -of the testatrix. The appellant served an 'answer admitting the claims and setting up the statute of limitations.</p> <p>Held, that the executor had a lieu ou the legacy and distributive share of the appellant, so in his possession, for the payment of the said claims, and that a decree directing that the amount of said claims be deducted from said legacy should be affirmed.</p> <p>That the equitable lien and right of retainer existing in this case was not affected by the statute of limitations, as that statute (Code of Civil Pro., § 380, etc.) did not raise a presumption of payment, but merely created a bar to the remedy by action.</p> <p>That the doctrine that where there is a legal and also an equitable remedy in respect to the same subject-matter, the latter is under the control of the same statute bar with the former, was inapplicable to this case, as that rule only applied to an action, or a proceeding in the nature of an action, brought to enforce an equitable remedy, in which the statute was set up as a defense, while in this case no affirmative action on the part of the executor had been taken, or was required to be taken, to make his lien and right of detention available.</p>

<p>Conviction by a Court of Special Sessions — what objections cannot be first raised on .an appeal — sections 188 and 189 of the Code of Criminal Procedure are only applicable tc proceedings prosecuted by indictment — what acts wilt be deemed a, request to 3>e tried by the court — the fact that the crime charged is a first ofiense need not be ■alleged.in the warrant.</p> <p>Upon 'an appeal from a judgment of a Court of Special Sessions held by the police justice of the city of Rochester, convicting the defendant of petit larceny, it appeared from the return that when the defendant was arraigned the charge was read to him, and that upon his pleading not guilty, and being asked by tne court if he was ready for trial, he replied that he was; that the trial was entered upon forthwith, the complainant being sworn as a witness and giving testimony, at the close of which the trial was adjourned at the request of the defendant, to enablo him to produce other witnesses; that on the adjourned day he appeared, in person and by counsel, and was convicted.</p> <p>field, that an objection to tne sufficiency of the affidavit of the complainant, upon which the warrant was issued, could not he raised on the appeal, as it was not taken at the trial.</p> <p>'That an objection made by his counsel that', under the provisions of sections 188 and 189 of the Code of Criminal Procedure, it was the duty of the police justice to have informed him of his right to the aid of counsel, and to have afforded him an opportunity to procure counsel, should not be sustained.</p> <p>It'seems that as the case, as it stood before the police justice, was one not to be prosecuted by indictment, the provisions of the said sections were not applicable to :l</p> <p>When the defendant was arraigned the affidavit was not read to him, nor was he informed that he had a right to a trial by jury nor did he elect to be tried by the court, or waive a jury trial.</p> <p>.Held, that the action of the defendant, on having the charge read to him, in saying that he was ready for trial, and in failing to demand a trial by jury, was equivalent to •>. request to be tried by the Court of Special Sessions.</p> <p>That although Courts of Special Sessions can only try cases of petit larceny charged as a first offense, it is not essential to the jurisdiction of the court that, in a case of petit larceny, the information or the warrant should state that the crime charged was a first offense.</p> <p>That if such an allegation was material for any purpose the defendant was not injured by its omission, as the provision requiring it was in the interest of the public to prevent criminals guilty of a second offense from escaping the full measure of punishment imposed by the statute, which Courts o£ Special •Sessions have not the power to inflict.</p>

<p>Reference ordered to aid the court in deciding a motion pending before it — General Rule Ho. 30 of the Supreme Court is not applicable — in what cases such a reference should be made — costs of one motion only can be allowed.</p> <p>Upon the hearing of a motion made by the defendant to have a judgment, entered against him by default, opened and for leave to answer, the question as to whether or not an answer had been served within twenty days from the service of the complaint being in dispute, the Special Term made an order referring the matter to a referee to take proof as to the time when the complaint was served and to report to the court. The referee having heard the parties and reported in favor of the plaintiff, an order was made by the court confirming the report and allowing the defendant to answer upon the payment of twenty dollars motion costs and twelve dollars disbursements.</p> <p>Held, that a claim that the court had no power to confirm the referee’s report for the reason that it had not been filed in the office of the clerk of the county eight days, in accordance with the requirements of General Rule No 30 of the Supreme Court, could not be sustained, as the rule cited had no application to references made for the purpose of aiding the conscience of the court in determining questions pending before it.</p> <p>That it was not the usual practice to order a reference in such a case, and that the practice should not be followed except in extraordinary cases where the court is unable to determine the facts from the papers read upon the motion.</p> <p>That the court had no power to allow costs of two motions.</p>

<p>Power of the trustees of the viUage of Niagara Falls to prohibit runners and solicitors for hotels, etc.— they may prohibit persons from so doing though such persons remain on their own property — 1855, chap. 98, sec. 1, sub. 4.</p> <p>Subdivision 4 of section 1 of chapter 98 of 1855, amending the charter of the village of Niagara Falls, as amended by chapter 57 of 1862, provides that “the trustees of the said village shall have power, in their discretion, in addition to the powers granted by section fifty-eight ” of the general act of 1847, providing for the incorporation of villages, " to restrain and prohibit all runners, solicitors or guides for boats, carriages, railroads,public houses, places of resort or for any other place or purpose whatsoever.” Pursuant to the power thereby conferred, the board of trustees passed a by-law, enacting “ that all persons are prohibited within the corporate limits of this village from running for or soliciting any passenger or passengers, or person or persons, for any steamboat, or other public or private conveyance, or for any tavern, boarding-house, store or other place of resort, under penalty of not less than one dollar nor more than twenty-five dollars for each offense.”</p> <p>Meld, that the power given by the charter to the trustees to restrain all runners solicitors, etc., was not limited to the public places or streets of the village, but the power was given to restrain them wherever they might be within the corporate limits, even though they might be upon their own private property.</p>

<p>Appeal from a judgment entered upon the decision of the Erie County Court.</p>

<p>Appeal from a judgment in favor of the defendant entered upon a verdict rendered at the Monroe Cii’cuit, and fi’om an order denying a motion for a new trial.</p>

<p>Bastardy cases — ilie judgment should be reviewed by appeal and not by certiorari — Code of Criminal Procedure, secs. 515 and 740, as amended by chapter 872 of 1884 — what questions are to be determined — a wife cannot prove non-access of her husband.</p> <p>]By tlie passage of chapter 872 of 1884, amending sections 515 and 749 of the Code of Criminal Procedure, the writ of certiorari was abolished as to proceedings and special proceedings of a criminal nature, and from and after its passage orders of the Court of General Sessions, made in bastardy proceedings, can only he reviewed on an appeal.</p> <p>While the provisions of section 2140 of the Code of Civil Procedure, prescribing the questions which are to be determined by the court upon the hearing on a return to a certiorari, “are limited to civil actions and proceedings,” yet, as the adoption of the section seems to show that the legislature approves of the rule therein laid down, it should be used by the court as a guide in determining the questions to be determined in criminal proceedings.</p> <p>In proceedings instituted to have the relator adjudged the father of a bastard child, the mother, a married woman, was allowed to testify as to non-access of her husband for the year previous to the birth of the child.</p> <p>Held, that the evidence was incompetent.</p> <p>That the common-law rule which made such evidence incompetent had not been changed by the adoption of sections 828 and 831 of the Code of Civil Procedure.</p>

<p>Alteration of the grade of a sidewalk by the owner of the adjoining 'property — liability of the city for injuries sustained by one injured in consequence thereof.</p> <p>TJpon the trial of this action, brought to recover damages for injuries sustained by the plaintiff in falling upon a sidewalk in a street in the defendant village, it appeared that the grade of the sidewalk had been altered by the owners of the adjoining lots to improve the approach to a building, so as to increase and nearly double the pitch of the sidewalk at the place where the plaintiff fell. Upon the trial the court granted a motion for a nonsuit made by the defendant upon the ground that the walk as laid was a matter resting in the discretion of the board of trustees, that they were legislative officers and that their action was judicial in fixing the grade.</p> <p>Held, that it erred in so doing, as it did not appear that the village trustees had ever established or approved of the new grade.</p>

<p>Mandamus — when it will he granted to compel a hoard of supervisors to permit a claimant to amend informalities in the form of a claim presented hy him.</p> <p>An appeal having been taken from the audit and allowance by a board of town auditors of a bill presented by the relator, a justice of the peace, for alleged services in criminal proceedings, the claim was referred by the board of supervisors to a special committee. Objections having been raised to the effect that the bill was informal, in not specifying the name and residence of the complainant in each case, and in not being properly verified, and the relator having asked for permission to withdraw the bill for correction and amendment, the committee reported to the board that it found the bill informal and that the relator asked to withdraw it. The board refused to permit the relator to withdraw the hill, and thereafter confirmed a report of the committee disallowing it.</p> <p>Held, that the relator was entitled to a peremptory writ of mandamus commanding the board of supervisors to permit him to amend and correct any inform-alities in his bill, and to make the same conform'to the statutory requirement.</p> <p>That he should not, however, be allowed to withdraw the bill already presented, nor could the board permit him to do so.</p>

<p> Lease —a covenant by the lessor to repair and a covenant of the lessee to pap rent ' aire independent covenants. </p> <p>In this action, brought to recover rent reserved by a lease containing a covenant on the part of the plaintiff to keep the buildings in good repair and condition for the purposes of the business conducted therein, the defendants served an ■answer admitting the execution of the lease and their entry thereunder, and .alleging that one of the buildings was subsequently destroyed by fire, without their fault, and that the plaintiff had neglected and refused to rebuild the same. The plaintiff replied, alleging- that the fire originated through the gross carelessness óf the defendants. Upon the trial the court directed a verdict upon the pleadings in favor of the defendants for the amount of a counter-claim set up in their answer.</p> <p>Held, that it was error so to do as the plaintiff’s covenant to repair was inde' pendent of the defendants’ covenant to pay rent, and the performance of his covenant by the lessor was not a condition precedent to any liability on the part of the defendants to pay rent.</p>

<p>Action for divorce — no jurisdiction is acquired by the personal service of the process of a court on persons residing out of the State unless such service ts expressly authorized by statute.</p> <p>•A. statute of the State of Pennsylvania, after declaring the causes for which divorces may he granted, provides, in the second section thereof, that the husband or the wife may exhibit his or her petition or. libel to the judges of the Court of Common Pleas, where the injured party resides, setting forth particularly and specially the causes of his or her complaint, and that “ thereupon a subpoena shall issue from the said court, directed to the party so complained against, commanding him-or her to appear at the next or any subsequent Court of Common Pleas to answer said petition or libel, and upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,” the court may proceed to judgment in the manner therein provided. It further provides for the issuing of an al-ias subpoena and for the publication of a notice by the sheriff, in case it appear upon the return of the subpoenas so issued that the party could not be found in the said county, and that the same proceedings shall be then had as are authorized and directed by the second section of the act.</p> <p>Held, that the words “wherever found” in the statute do not embrace other States and countries, as those within which personal service can be effectually made to bring a party into court.</p> <p>That a Court of Common Pleas of Pennsylvania acquires no jurisdiction over, a wife residing in this State, by the personal service upon her in this State of a subpoena issued by the said court, in an •action for divorce brought by the husband, a resident of the State of Pennsylvania.</p> <p>The Pennsylvania cases bearing upon this question examined and considered by Bradley, J.</p>

The action was brought to recover the purchase-price of a canal boat sold by one Collins to the defendant, and alleged to be due and payable to the plaintiff, who is the assignee of the claim.

Appeals from judgments entered upon decisions of tbe court on trials without a jury at tbe Orleans'Circuit. Tbe action No. 1 is upon an undertaking made by tbe defendant on an appeal taken from a Justice’s Court to tbe Orleans County Court, in an action of tbis plaintiff against one Guentber, where tbe judgment was affirmed.

Appeal by tbe plaintiff from so much of the judgment entered in Allegany county upon the report of the referee as dismisses the complaint as to the New York, Lake Erie and Western Railroad Company. This action was brought for the foreclosure of a mortgage made by the defendant, the Tonawanda Yalley and Cuba Railroad Company, September 1,1881, to secure the payment of $500,000 of its bonds, which were soon after issued.

<p>Appeal from a judgment entered upon a verdict for the defendants, at the Monroe Circuit, and from an order denying a motion for a new trial made on a case and exceptions.</p>

Ceetioeaei to the police justice of tbe city of Rochester to review the proceedings and judgment of the Police Court convicting the relator of a violation of an ordinance of the city and imposing upon him the payment of the penalty prescribed by it for such violation.

<p>Appeal from a decree of the Surrogate's Court of Chautauqua county, declaring established and admitting to probate the last will of Mándame Marsh, deceased.</p>

MotioN by the plaintiff for a new trial on exceptions taken at Monroe Circuit, and ordered beard at General Term in tbe first instance. The action was brought to recover damages for personal injuries of the plaintiff alleged to have been occasioned by the negligence of the defendant. At the close of the evidence on the part of the plaintiff a nonsuit was directed. He moved for a new trial.

Motion by tbe plaintiff for a new trial on exceptions taken at the Monroe Circuit and ordered heard at General Term in the first instance. The action was brought to recover damages for an alleged libel. The charge is founded upon the publication by the defendant in its newspapers of what purports to be an indictment and proceedings upon it in the Court of Sessions of Monroe county, with the heading and what precedes the indictment.

<p>Execution against the person of a judgment debtor — void unless am execution against Ms property has been issued — Code of Civil Procedure, sees. 1372 and 1489 — evidence.</p> <p>Upon the trial of this action, brought to recover damages for false imprisonment it appeared that on September 2, 1885, the appellants, as the attorneys for their co-defendants, entered a judgment in a Justice’s Court in Queens county against the plaintiff, a resident of the county of New York, for $112.50 damages for injuries to personal property, which judgment was thereafter docketed in the office of the clerk of Queens county. An execution against the judgment debtor’s property was thereafter issued to the sheriff of Queens county, which was returned unsatisfied, but the judgment was never docketed in the office of the clerk of New York county, nor was an execution against the property of the debtor ever issued to or returned from that county. On January 16, 1886, the appellants issued an execution against the person of the plaintiff to the sheriff of Queens county, under which he was arrested.</p> <p>Held, that as the judgment, although originally recovered in a Justice’s Court, had been filed and docketed in the office of the county clerk, it became a judgment of the County Court and should have been enforced accordingly.</p> <p>That as no execution had been issued against the property of the debtor to the county in which he resided, as required by sections 1372 and 1489 of the Code of Civil Procedure, the execution issued against his person was void and afforded no justification to the parties issuing the same.</p> <p>Upon, the trial the plaintiff was asked and allowed, against the defendants’ objections, to state that before his arrest he did not know that any judgment had been recovered against him.</p> <p>Held, that as this evidence tended to aggravate the damages, the court erred in excluding evidence offered by the defendants to show that the judgment had been obtained after a trial.</p>

On the 12th day of August, 1885, the plaintiff purchased of the defendant, paying therefor the regular fare, a ticket from Geneva to New York, and entered a sleeping car attached to one of the defendant’s trains which was called the Norwood. He then purchased and paid for to the porter, who was in sole charge of a section in that car, and received from the porter, a ticket showing that he had purchased said section for a continuous passage from Geneva to New York.

This action was brought to recover tbe sum of $25,000 due on an agreement, which the plaintiffs - claimed had been made by the defendant company, to insure a stock of merchandise belonging to the plaintiff. On the morning after the fire, which occurred on September 3, 1885, proofs of loss were served on the defendant company, by which they were retained.

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

The plaintiff’s complaint alleged a letting by the defendant to the plaintiff for the term of one year from May 1,1885, at a yearly rent of $6,000, of certain premises on First avenue in the city of New York, together with all steam-power the plaintiff needed in its business during the said term, and .that the defendant knew the nature of the plaintiff’s business, and that such steam-power was necessary for the prosecution and conduct thereof.

<p>Oommissioners to decide as to the construction of steam railway sin cities — 1875, chap. 606, sec. 4 — the refusal of the property owners to consent, after the determination of the route by the ra/pid transit commissioners, must be shown.</p> <p>To authorize the General Term of the Supreme Court to appoint commissioners to determine whether a railway ought to he constructed or operated, as provided in section 4 of chapter 606 of 1875, it must be shown that the owners of one-haif in value of the property, hounded on the portion of the street or highway upon which it is proposed to construct or operate such railway, have refused to consent thereto, after the rapid transit commissioners have fixed and determined the route or routes for such railway, and the time and place of construction, as provided in the said act..</p> <p>No legal application for such consent can he made until the rapid transit commissioners have exercised this power, as such action on their part is necessary to enable the property owners to whom application is made to know to what kind of a road they are consenting, to what degree the streets will he obstructed thereby, of what efficiency the proposed mode of construction is capable, and to what particular objections it is subject, from which some other method of construction might be free.</p>

This is an appeal from an order made at Special Term, which denied the defendant’s motion to set aside the verdict and judgment as void or irregular, vacated the said judgment and substituted a different judgment for it; canceled the clerk’s minutes of trial, and substituted other minutes for them; and in other respects altered the judgment-roll.

The Metropolitan Transit Company is organized under a special act of the legislature of the State of New Y orle (chap. 833, Laws of 1872, as amended by chapter 636, Laws of 1881).

<p>Contempt — ''token the failure of a trustee to pay oner money in his hands will constitute ove— afine to the amount required to be paid may be imposed— Code of Civil Procedure, secs. 2284, 2285 — quiere, as to the power to include costs and expenses in the fine — counsel fees cannot be included.</p> <p>Where a trustee has been adjudged to be guilty of a contempt, because of a failure to pay over moneys .received by him as trustee, in an order made upon an accounting, the court(may, under the authority conferred by section 2284 of the Code of Civil Procedure, impose as a fine the amount which he has received and failed to pay, and direct him to be imprisoned until he shall pay the fine, as provided in section 2285 of the said Code.</p> <p>It is not sufficient, to protect the party against proceedings and punishment under this section, ,to show that an action may on general principles be maintained for the same cause, but it must be shown to be a case where the law has specially prescribed an action as the means of redress.</p> <p>It seems that as the power to include the costs and expenses of the proceeding in cases where a fine is imposed by way of indemnity, which was conferred by the provisions of the Revised Statutes, is not in express terms conferred by that portion of the said section 2284 which provides for the imposition of a fine by way of indemnity, that it is doubtful whether any allowance can now be made therefor.</p> <p>That even if the power to include the complainant’s costs and expenses in the fine, provided for by another clause in the same section, in the case where no actual loss or injury has been shown, should be held to extend to cases in which a fine by way of indemnity is imposed, it does not authorize any allowance to be made for counsel fees.</p>

<p>Appeal by tbe defendant from a judgment recovered on a trial before tbe court and a jury.</p>

<p>In what cases a company is required to give the notice prescribed by chapter 341 of 1870 before forfeiting a policy for non-payment of a premium- — when a revival of a forfeited policy will be held tobe a “ renewal ” thereof und&r the said act.</p> <p>Upon the trial of this action brought by the plaintiff, as the administratrix of her deceased husband, William A. Wyman, to recover the sum of $3,000, for which amount his life had been insured by a policy issued by the defendant on October 25, 1872, the complaint was dismissed upon the ground that prior to the death of the husband, which occurred on November 8, 1884, the policy had, by virtue of the terms and conditions contained therein, become null and void because of a failure to pay the annual premium which became due on the policy on October 25, 1884. Upon the trial it appeared from the testimony of the defendant’s agent that Wyman had also made a default in the payment of a quarterly installment of a premium which became due- on April 25, 1884, the payment of which on that day was, by the terms of the policy, essential to its validity; that before this payment became due he had, upon being requested by Wyman to extend the time for its payment, told him that he had no power to do so, but promised to hold the renewal in the office for four or five weeks, and said that if Wyman then came in and was in good health he had no doubt the company would accept the premium. Thereafter the assured came and paid the agent the premium, which was forwarded to and accepted by the company.</p> <p>Held, that by accepting the premium falling due in April, after the day on which it was payable, the company revived and reinstated the policy from the time the payment was made.</p> <p>That the policy was thereby “renewed,” within the meaning of that term as used in section 1 of chapter 341 of 1876, providing that no life insurance company doing business in this State should have power to declare forfeited or lapsed any policy hereafter issued or renewed, by reason of non-payment of any annual premium or interest, or any portion thereof, unless the notice thereby prescribed should be given.</p> <p>That as the notice required by this act was not given upon the failure of the assured to pay the premium falling due in October, the company could not declare the policy forfeited for his default.</p>

<p>Appeal by the def endandant from a Special Term order appointing a commissioner to take testimony in Nicaragua.</p>

<p>ContboveRsy submitted under section 1279 of tlie Code of Civil Procedure.</p>

This action was brought to compel the defendant who, it is alleged, was one of the stockholders of the Kings County Manufacturing Company, to pay on each share held by her a sum necessary to complete the amount of such share as fixed by the charter of the company. It is alleged that the whole capital of the company was not paid in; and that the capital paid in proved insufficient to satisfy the claims •of its creditors.

<p>Appeal by tbe defendants from a judgment entered upon the report of a referee.</p>

■Certiorai to review proceedings upon a habeas,corpus. This is a proceeding brought to secure a judicial construction of •the excise laws of this State. The defendants -sold on Sunday, the .one to a regular lodger in his house, the other to a traveler who ■frequently takes his meals there, intoxicating wine to be consumed ■with the jespectiye dinners of ,-such lodger and traveler.

Appeal by Alexander Thain, receiver, from an order directing him within five days to assign, transfer and deliver to the defendant, all the copartnership property, stock, chattels, books, vouchers, accounts, ehoses in action and effects, received or held by him, or under his control, by virtue of his appointment as receiver.

Tbe will and first codicil of tbe late John F. Delaplaine were admitted to probate by tbe surrogate of New York county on the 21st day of May, 1885. In June, 1886, Amelia A. Stolzel and Arthur F. Stolzel, two legatees under a subsequent codicil dated July 17,1883, commenced a proceeding in tbe Surrogate’s Court for tbe proof thereof.

the justice before whom the action was tried. The action was In replevin, to recover the possession of certain hay, grain and grass attached by the defendant, Miles, as a constable, in actions in a Justice’s Court, against one Patrick Kane. In 1885 Colville made an agreement with Kane by which he leased to him his farm and cattle.

at the conclusion of the plaintiffs case. The action was brought for the recovery of damages from the defendant, for fatal injuries received by one Simeon A. Atkinson by reason of falling through an unguarded hatchway in the defendant’s building.

' SubmissioN of a controversy upon an agreed statement of facts under section 1279' of the Code of Civil Procedure.

The motion to quash was made on the filing of the return and was based on the defect claimed to exist, both in the petition and the writ, that they did not show that the relators had ever appeared before the assessors or made any objection during the period while the assessment-rolls were open for inspection and corrections

Miller, deceased, subject to the collateral inheritance tax. Mary E. Miller, of New Windsor, Orange County, N. Y., died September 30,1886, owning real and personal property, and leaving a will in which she devised a portion of her estate to her nephew John Blackburn Miller, the son of a deceased brother of testatrix.

<p>Judgment — it is irregular to enter judgment before issues are tried, allhoug/i a demurred' to a counter-claim has been sustained.</p> <p>In this action, brought to recover damages for injuries occasioned by the defendants’ neglect, the complaint alleged that the defendants were the owners of a building, a part of which was rented to the plaintiff, and that they opened a place in. the roof and carelessly left it unprotected,whereby the rain injured the plaintiff’s goods. The defendants’ answer took issue upon the facts and set up a counter-claim based upon an averment that the plaintiff had, without the defendants’ consent, made a structure upon the roof which was against the city ordinance, and that the defendants were compelled to repair it at an expense of $250. A demurrer interposed to the counter-claim having been sustained the plaintiff entered up judgment thereon, with costs.</p> <p>Held, that an order of the Special Term setting it aside as irregular was properly made and should he affirmed.</p>

Appeal by the plaintiff from a judgment entered upon the Verdict of a jury at the Kings County Circuit and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

<p>Appeal from an interlocutory judgment entered in Kings county upon an order overruling a demurrer to tbe complaint.</p>

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

<p>Appeal from a judgment of the City Court of Yonkers in favor of the defendant and from an order of the said Court denying a motion for a new trial.</p>

<p>Award of damages caused by the construction of the new Croton aqueduct for New York city —1883, chap. 490 — but one amount is to be awarded.</p> <p>A report of commissioners' awarding damages to the qwners of. and persons interested in, lands to be acquired for the construction of the new Croton^ aqueduct, under the provisions of chapter 490 of 1883, was claimed to be defective in that it failed to state separately the sum awarded for the land actually taken, and the sum awarded for the damages to the contiguous lands injuriously affected thereby.</p> <p>Held, that the statute contemplated the award .of hut one amount.</p>

<p>General assignment — the assent of the assignee is sufficiently expressed by his execution and acknowledgment of the deed conveying the property to him —1877, chap. 466, sec. 1.</p> <p>By an indenture made between William C. Lawson, party of the first part, and . David A. Scott, party of the secoud part, the said Lawson conveyed and sold' all his property to Scott, in trust for the benefit of the creditors of the grantor. The instrument was duly executed and acknowledged by each party. No-express assent of the assignee appeared or was embraced in or at the end of or indorsed upon the deed, as required by section 1 of chapter 466 of 1877.</p> <p>Held, that as the statute prescribed neither the form in which or the place at which the assent should appear, it was fully satisfied by the execution and acknowledginent of the deed by the parties, as they each thereby assumed obligations to the other, and became mutually bound by the terms of the instrument.</p>

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

On November 13,1886, one Abrams applied to the defendant as the board of town auditors of the town of Hempstead, to revoke a license of some oyster grounds, granted by the board to one Jennie Johnson, and for a license to himself of the same grounds, claiming priority of right.

<p>Insurance association — designation of the beneficiary — wZien the fund may he disposed of by will — when the association will be deemed to have waived defects in the form of designation adopted,</p> <p>Upon .tlie trial of this action, brought against the defendant, a fraternal organization engaged in the business of life insurance upon the assessment plan, it appeared that one Macht, a German laborer, became a member of the association in 1885, and received a benefit certificate payable to his wife, Catharine, whom he had married many years before. At the time of the marriage Catherine had a daughter, the plaintiff, who always lived with Macht and his wife, Macht never having had any children. After the death of the wife, which occurred a few months after the issuing of the certificate, Macht made a will, by which he left to his step-daughter all his property, which, with the exception of his clothes and a little furniture, consisted of the insurance in question. After the will was drawn he caused a friend to write a letter on the hack of it to one Osborn, one of the principal officers of the lodge, and delivered the will to Osborn, and also told one Boyer, the reporter of the lodge, of the contents of the will, and of his understanding that it conveyed his insurance to his step-daughter.</p> <p>The defendant refused to pay the plaintiff, who had proved the will after the death of her step-father, upon the ground that Macht had not complied with the requirements of an article of its constitution providing that “in the event of the death of all the beneficiaries designated by the member, before the decease of such member, if he shall make- no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person shall be entitled to receive such benefit, by the laws of the order, It shall revert to the “widow and orphan benefit fund ”</p> <p>Held, that under a fair construction of this provision Macht should, under the circumstances of this case, be held to have disposed of the fund in favor of his step-daughter.</p> <p>That if this were not so, the delivery of the will to Osborn, the proper officer of the lodge, and the. contemporaneous statement made by the assured to Boyer, the reporter of the lodge, and the retention of the will by said lodge, without any objection to the form or manner of designation, constituted a waiver of any defect or irregularity m such designation or disposition</p>

This action was commenced to obtain a divorce on the ground of the defendant’s adultery. The parties were married on the 12th day of December, 1867. The action was first tried on the 4th of February, 1886, and judgment rendered for plaintiff and entered on February 5,1886. From that judgment the defendant, on March fifth, appealed to the General Term of the Second Department, which reversed it.

1886, settling an account. The appeal also brings up for review the interlocutory decree of said Surrogate’s Court, dated March 12, 1886, which compelled the appellant to render such account and set aside a previous decree made April 7, 1885, refusing to order such account. It also brings up for review an order made on the 16tb day of March, 1886, refusing to allow the appellant to introduce evidence in support of the allegations of his answer.

The action was brought to recover damages sustained by fire, under a policy issued on October 11, 1884, to the plaintiff and Frank J. Oallanen, under the firm name of Dresser & Co. In July, 1884, the firm of Dresser & Go., took from William H. W atson a lease of certain lands upon which to erect buildings to be used as a skating rink, on Genesee street in the city of Utica.

The action was brought to recover damages occasioned to the plaintiff’s garden by the defendant’s negligently flooding it by the improper construction of sewers and street gutters. The complaint demanded a judgment for a sum of money only. Plaintiff recovered a verdict at the Circuit for $150. It was shown that the plaintiff’s claim was presented to the common council of the city of Oswego July 21, 1885, and that this action was brought January 5,1886.

the action was tried. iThe action was brought to recover damages for injuries sustained by tbe plaintiff by reason of tbe negligent driving of tbe defendant.

CeRtiobARI to review the proceedings of tlie commissioners of highways of the town of Manheim, in laying out a public road across the lands of the relators in the said town.

<p>Accident insurance policy — death from breathing illuminating gas is covered by — an external sign only required in cases where injury does not result in death — meaning of expression “ inhaling gas.”</p> <p>This action, brought upon a policy of insurance issued by the defendant to the intestate, indemnifying him “against loss of time * * * from the happening of such accident and injury as shall, independently of all other causes, 'immediately and wholly disable and prevent him from the prosecution of any and every kind of business by reason of bodily injuries effected * * * through external, violent and accidental means, or in the event of death, occasioned by bodily injuries received as aforesaid.” By such policy it was further provided that the “insurance shall not extend to any bodily injury,of which there shall be no external and visible sign upon the body of the insured * * * nor by the taking of poison, contact with poisonous substances, or inhaling of gas, or by any surgical operation or medical treatment.” While the policy was in force the intestate died accidentally at a hotel in New York city from breathing, in his sleep, illuminating gas, which in some way escaped in his room.</p> <p>Held, that the death"was caused by “external, violent and accidental means,” ■ within the meaning of those words as used in the policy.</p> <p>That the “ external and visible sign upon the body of the insured ” was only required to exist in cases of bodily injuries which did not result in death.</p> <p>E seems that the dead body itself was an external and visible sign of an injury which must have caused the death.</p> <p>That the words “inhaling of gas,” among the various provisions exempting the defendant from liability, were used to designate only those common uses of gas existing in dentistry, surgery, etc., and did not include the case of the intestate.</p>

<p>Lease of a farm — when the title to the crops is in the tenant and subject to sale on execution against him.</p> <p>Tlie defendant leased to one Converse a farm and seven cows from April 1,1883, to April 1, 1884, and agreed to furnish, sufficient hay to keep the cows to grass in 1883. Converse agreed to pay $175 rent and “to feed out all the fodder on said farm that is raised on said farm, * * * and winter said stock (seven cows) through to grass in the spring of 1884 on hay.” In December, 1883, the plaintiff had an execution against Converse, under which about twenty-five tons of the hay grown upon the farm in 1883 was sold, the plaintiff becoming the purchaser. The defendant prevented the plaintiff from removing the hay, claiming that Converse had left the farm without fully paying the rent; that the hay was required to keep the cows through to grass, and that he was entitled to the manure which would be made by the hay being fed on the farm.</p> <p>Held, that the title to the hay was in Converse, and was subject to sale on the execution against him, and that the plaintiff was entitled to recover its value from the defendant. ■,</p>

October 29, 1885, the plaintiff recovered in a Justice’s Court a judgment for a sum of money only ($100 damages and ten dollars costs), from which the defendants appealed November 17, 1885, asking for a retrial, which was had in May, 1886, resulting in a verdict of twelve dollars for the plaintiff.

Appeal from a judgment dismissing the complaint, entered in Broome county upon the trial of this action by the court without a jul7-

Appeals from an order made at the Jefferson county Special Term and entered in Iierlcimer county, allowing and disallowing claims presented to the receivers of the defendant corporation, by creditors wbo claimed to be entitled to a preference over all other creditors under the provisions of chapter 376 of 1885.

Tbe part of tbe order appealed from is as follows : “ Tbat tbe claim of R. J. Dean & Co. for counsel fees incurred by tbe three banks and tbe said R. J. Dean & Co., growing out of and connected with the motion made on tbe 29th day of May, 1886, before bis Honor Justice Williams, at WatertowD Special Term, for a modification of tbe general injunction order issued by tbe court, and the order to show cause returnable before his Honor Justice Williams, at a Special Term, held at…

” The decree is based upon findings of fact and conclusions of law signed by the surrogate on the 25th of May, 1886. Held: with a valuation set opposite each classification of property, and the final specification therein contained was the following words: “ The farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, $69,683.33.” This last item was made the subject of…

<p>Assessments — what errors can be reviewed under section 2 of title 11 (chap. 298 of 1883) of the charter of Albany — meaning of words “substantial error” and “party aggrieved,’’ as therein used — the requirement as to the notice of the meeting at which bids are to be deceived as pi'esvribed by section 8 of title 9 of the charter — -a grantee taking subject to an assessment is not bound to pay an illegal assessment.</p> <p>This proceeding was instituted, under the provisions of section 2 of title 11 of the charter of the city of Albany (chap. 298 of 1883), to vacate an assessment for the excavating, paving, etc., of Second avenue, in said city, upon the ground that the notice of the meeting of the hoard of contract and appor, tionment to receive bids for the work had not been given as prescribed by section 8 of title 9 of the said charter.</p> <p>Held, that a claim by the defendant that the error, if committed, was not committed in a proceeding relative to the assessment, or in a proceeding to collect the same, within the meaning of those terms, as used in said section 2 of title 11 of the charter, could not be maintained.</p> <p>The words “substantial error,” as used in the said section, must he construed to embrace everything which might otherwise be remedied by a suit, action or special proceeding, the right to resort to which is taken away by section 8 of the said act.</p> <p>Section 8 of title 9 of the charter requires that bids shall be received at a meeting of the board of contract and apportionment, held “ at a time of which at least one week’s notice * * * shall have been given in the official papers by five consecutive publications, Sunday and legal holidays excepted, of such notice therein.” The publication in this case was from May fifteenth to May nineteenth, inclusive, of a notice of a meeting to be held on May twenty-first.</p> <p>EM, that it was insufficient</p> <p>That the requirement that such notice should be given was mandatory, and that a rauure to comply therewith rendered the assessment void.</p> <p>The petitioner purchased the property upon which the assessment was imposed while the work was in progress by a deed which recited, in substance, that it was subject to whatever assessment should be made.</p> <p>EM, that the petitioner was a “party aggrieved” by the assessment, within the meaning of that term as used in said section 2 of title 11, and that he was not estopped from disputing the validity of the assessment, by the clause in his deed, as he did not assume to pay an illegal assessment</p>

<p>Liability of a city for injuries occasioned by a fall on, an icy sidewalk — what evidence is insufficient to prove constructive notice to the city.</p> <p>Upon, the trial of this action, brought to recover damages occasioned to tire plaintiff by his slipping on some ice upon a sidewalk in Troy, on the evening of .January 28, 1881, evidence was given showing that at the time he slipped and feli there was hard ice on the sidewalk, and thatathe plaintiff was seriously injured, No direct evidence was given that the ice had been on the sidewalk for any time prior tc the accident, but the plaintiff sought to prove that the ice had been for some time on the sidewalk by showing that the temperature of the weather was below the freezing point from the seventeenth of January to the day of the accident, and that snow fell on January twenty-second and not again until after the twenty eighth.</p> <p>JTcld, that the evidence was insufficient to show constructive notice to the city, and that the court erred in submitting that question to the jury.</p>

<p>Nuisance — a purchaser of premises is not liable therefor until notified of its existence.</p> <p>Upon the trial of this action, brought to recover damages alleged to have been caused to the plaintiff’s premises by a roof, gutter and conductor on the defendants’ adjoining premises, which were said to pour water on the plaintiff’s premises, it appeared that the gutter and conductor had been in the same position for some eighteen years, and that the defendants had purchased • the premises in 1878. The defendants, who did not live in the city where the premises were situated, testified that they had no knowledge that the gutter cast water on the plaintiff’s premises.</p> <p>Held, that without proof of previous notice to the defendants of the existence of the nuisance the action could not be maintained.</p>

This claim, which was presented by several persons against the estate of Hiram A. Ferguson, deceased, was disputed by the administrator and referred under the statute. Eveline A. Ferguson, wife of Hiram A., died about June 9, 1878, leaving a last will and testament. By this she disposed of “my note of six hundred dollars that Hiram Ferguson holds,” giving certain amounts to several persons.

This action was brought to redeem from a foreclosure sale the undivided half of certain premises, by the payment of one-half the amount due on the decree and interest, and aslcs that thereupon a decree be made that the defendants convey to the plaintiff such one-half, and, also, that they account for waste and damage and for rents. In December, 1864, the plaintiff purchased the premises for $8,500, paying $1,000 by notes and giving a purchase-money mortgage for $7,500.

Appeal by tbe defendants from a judgment, entered in Clinton county, on tbe direction of a referee. Tbe action was brought by tbe plaintiff, as a judgment creditor of tbe firm of O. K. Wood & Co., composed of O. K. Wood, Y. A. Wood and A. Gr.

Appeal from- so much and that part of the decree made by tbe surrogate of Warren county, bearing date the 28th day of September, 1886, admitting to probate the will of Hiram- Vowers, which determines the construction which should be given to a provision contained therein relating to the widow of the testator

Appeal by tbe defendant from a judgment and sentence upon bis conviction of murder in tbe first degree at tbe Columbia County Court of Oyer and Terminer, in February, 1887, for tbe killing of Simon A. Yandercook, on tbe lOtb day of January, 1882, at tbe town of Austerlitz, in said county.

Appeal taken by the assessors, Parker, Courtnght, Kilpatrick, and the town cleik, Ennis, from the final order m proceedings, under chapter 269, Laws of 1880, to review the assessment, of the relator’s real estate in the town of Highland,' Sullivan county , also from the order granting the writ, also from the order appointing the referee and overruling the objections to making said order, also from the order refusing to modify the final order This proceeding is by certiorari,…

The action was brought to recover upon a promissory note made by the defendants.for $500, datod April 1, 1874, and payable one year from date. The defense was the statute of limitations. There were four indorsements of payments upon the notes, the fast of which was of fifteen dollars, April 1, 1879. The action was commenced March 30,1885. The verdict was for the plaintiff.

Lawrence county, upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was for injuries to the plaintiff and his property at a street crossing in the village of Hilverton, St. Lawrence county, alleged to have been caused by the negligence of- the defendant’s agents and servants in the running of its train through the village.

SubmissioN of a controversy upon an agreed statement of facts under section 1279 of tbe Code of Civil Procedure.

<p>Charter of the city of Albany —1883, chap 298 — power of the common council tc pass ordinances requiring the sidewalks and gutters to he kept free from ice and snow.</p> <p>An ordinance ol the city of Albany provided that every owner, lessee or person entitled to the possession, or having the charge of any building or vacant lot, shall, during the winter season, and during the time that snow shall continue on the ground, by ten o’clock on every morning, when necessary, clear the sidewalk and gutters in front of such house or other building and in front of such lot from snow and ice, and keep them conveniently free therefrom during the day; or shall, in case the snow and ice are so congealed that they cannot be removed without injury to the pavement, cause the said snow and ice to be strewed with ashes or sand, and shall also at all times keep such sidewalk clean and free from all dirt, filth or other obstructions or incumbrances, so as to allow of the citizens using the said .sidewalk in an easy and commodious manner, and imposes a penalty of two dollars on every person neglecting or refusing to comply with the law.</p> <p>Sections 23 to 28 of title 9 of the charter of the city (chap. 298 of 1883) provides that “it shall be the duty of the chief of police to regulate the cleaning and sweeping of the streets, * * * and the clearing of ice and snow from the sidewalks and gutters in said city;” and that “the city shall be divided into districts, and the cleaning of such districts shall be done by the occupants or owners of property in such manner and at such times as may be prescribed by the chief of police or his subordinates,” and in case the occupants or owners shall not clean and sweep the street or clear the ice and snow from the sidewalks as required by the police, it shall be the duty of the chief of police or his subordinates to notify the occupant of the house or lot before which such work has not been done, and in case he cannot be found the owner of such house or lot, and if such work is not done forthwith the chief of police shall cause the work to be done, and the expense of so doing shall be paid by the owner or occupant. If the owner or occupant shall fail to pay such expense the occupant, or, in case he cannot be found, the owner shall be arrested and fined not less than such amount, which shall be paid to the person doing the work.</p> <p>Held, that the common council of the city had power to pass the ordinances under the authority conferred upon it by section 14 of title 3 of its charter, and that it did not violate the other provisions of the charter relating to the same subject, as its provisions were not inconsistent therewith</p>

<p>Appeal from a judgment in favor of the plaintiff, entered in Albanji county, upon the report of a referee.</p> <p>Thomas P Crook, a member and elder of the religious society known by the name of the plaintiff, subscribed $5,000 towards a fund of $45,000 to be raised to pay the principal of the mortgage debt existing upon the plaintiff’s lot and church edifice. The following is a copy of the subscription paper: “That the undersigned hereby severally promise and agree to, and with the trustees of the First Presbyterian Church in the city of Albany, in consideration of one dollar to' each of us in hand paid, and of the agreements of each other in this contract contained, to pay, on or before three years from the date hereof, to said trustees, the sum set opposite our respective names, and upon the express condition, and not otherwise, that the sum of forty-five thousand dollars in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if, -within one year from the date, said sum shall not be subscribed or paid m for such purpose, then this agreement to be null and of no effect. The purpose of this subscription is to pay off the mortgage debt of forty-five thousand dollars, now a lien upon the church edifice of said church, and the subscription or contribution for that purpose must equal that sum in the aggregate to make this agreement binding Dated May 18, 1884/’’</p> <p>The referee found that the full sum of $45,000 was subscribed or paid for the purpose specified in the subscription paper; thac the subscriptions were solicited and obtained by the trustees and officers of the plaintiff; that the defendant’s intestate, Mr Crook, actively promoted the raising of the subscription, that he paid $2,000 thereon; that he died October 10, 1885 ¡ that $10,86S.30 of the entire subscriptions were collected by the plaintiff before Mr Crook’s death; that $10,500 thereof had then been paid m reduction of the principal of the mortgage debt, of which $7,000 were paid upon the express approval of Mr. Crook, before the same became due.</p> <p>Among the subscriptions made was one of $5,000 by the “ Ladies Association of the First Presbyterian Church.” This association consisted of such ladies of the church as contributed to the benevolent work of the church.” They did not sign any articles of association. Some twenty-five or thirty met together. One of their number presided and a resolution was adopted pledging themselves to raise $5,000, the payment to be according to the terms of the above subscription paper, which the lady president signed in the above style. - Another subscription was “ Sunday-school per R. F. Todd, $500.” This was made by Mr. Todd, the superintendent of the school, and approved and ratified by a meeting of the officers and teachers.</p> <p>The young men of the congregation, in a meeting regularly organized, passed a resolution pledging themselves to raise, “ by entertainments or otherwise, $1,500 towards the paying of the $45,000' mortgage upon the church, and that the chairman be requested to sign and forward tht resolution to the treasurer of the board of trustees.” This was done but the subscription paper was not signed.</p> <p>Mr. Crook knew the character and amount of the above so-called subscriptions and expressed his approval of them They had not been paid at the time of his death. The defendants, his administrators, refusing to pay the balance remaining unpaid at his death, the claim therefor was with the approval of the surrogate referred, and upon the trial the judgment appealed from was recovered.</p>

Appeal by the plaintiffs and the receiver from so much of the judgment entered upon the trial of this action, brought before the court, without a jury, at the Albany Special Term, to wind up the affairs of the Broadway Surface Railroad Company, as adjudges and decrees that the company had, prior to the 4th day of May, 1886, the right to construct and perpetually maintain and operate a street surface railroad in lower Broadway; that the mortgages made by the Broadway Surface…

<p>Oontraet for the purchase of land — one assuming liabilities while in possession under it cannot repudiate them after obtaining the legal title, nor can his assignee with notice.</p> <p>Van Wert and Niver being tbe owners of a farm, tbe title to which was taken in the name of Niver, Van Wert, with the consent of Niver, made a written con- ' tract to sell the land to one Bogart, who paid a part of the purchase-price and went into possession of j the farm. While thus in possession Bogart verbally sold a right of way, or private road, over the land to Benedict, the plaintiff, who worked and used the same. Thereafter, upon the application of Benedict and Bogart, this road was laid out by the highway commissioners as a private road under the statute. The contract for the purchase of the land was subsequently assigned by Bogart to Calkins, the defendant, who knew of the agreement with Benedict, and was allowed $100 on the purchase-price by reason thereof. Calkins having paid to Van Wert the balance due on the contract received a deed from Niver.</p> <p>Held, that in this action, brought to obtain a perpetual injunction restraining the defendant from interfering with the road, the plaintiff was entitled to a judgment for the relief sought.</p>

, a referee appointed by the Rensselaer County Court to take and state the account of Gerothman W. Cornell, who had been removed by order of the court from his position as assignee of the firm of R. Carpenter & Co., consisting of Reynolds and Andrew P. Carpenter, under a general assignment for the benefit of creditors. Reynolds Carpenter and another made a general assignment, March 17, 1876, to Gerothman W. Cornell.

<p>Appeal by James "Whitelaw, a legatee named in an instrument purporting to be the last will and testament .of Margaret Hannah, from a decree of the Surrogate’s Court of Washington Refusing to admit said will to probate.</p>

<p>Dower in a defeasible estate — is lost when the estate is defeated — what will defeat the estate.</p> <p>Upon the trial of this action, brought by the plaintiff, as the widow of one Peter Moriarta, to recover dower in certain lots of land, it appeared that the lots were conveyed, in 1854, by perpetual leases, reserving rents, which gave the lessees, their heirs and assigns, the right to have the said rents released, acquitted and discharged upon the payment of a fixed sum named in each lease. Subsequently the rights of the owner or lessor were assigned to various persons, among them to the plaintiff’s husband, who subsequently assigned them by an instrument in writing, in which the plaintiff did not join, to one Andrews, who shortly afterwards acquired the interests of the lessees and subsequently conveyed the lots by warranty deed to the defendants.</p> <p>Held, that, assuming that a perpetual rent is an incorporeal hereditament of which a widow is entitled to be endowed, yet, as the estate of the lessor was defeasible upon the payment of a fixed sum, the right to dower would be only . a right in a defeasible fee, and that whenever the estate should be defeated, according to the terms of the original conveyance, the wife or widow, as the case might be, would no longer have any right of dower therein.</p> <p>That the purchase by the owner of the rents of the property on which the rents were charged effected a merger and was equivalent to an actual payment of the sums fixed by the leases, and defeated any claim that the plaintiff might •■have to dower.</p>

The plaintiffs, by their complaint, sought to recover damages for injuries done to their steamboat by the explosion of the boiler of the defendant’s steamboat. Both steamboats were engaged in the towing and coasting trade, upon the Hudson river and vicinity. The plaintiffs’ boat had been duly inspected and .licensed, and its officers in charge had been duly licensed, and these licenses were in force at the time of the injury.

<p>Failure of an attorney to pay over surplus moneys, arising on a mortgage foreclosure, received by him — an attachment may he issued for his failure to do so — the burden of proving that he has paid them, to the county treasurer rests upon him — a referee appointed to take testimony and report it, is not hound to take irrelevant testimony.</p> <p>Upon an appeal from an order compelling one Silvernail to pay to the county treasurer the surplus moneys which came to his hands, as an attorney upon a foreclosure sale, it appeared that Silvernail, acted as the attorney for the plaintiff in an action brought by one Case for the foreclosure of a mortgage against the petitioners in this proceeding, the owners of the equity of redemption, and that the premises were sold pursuant to the judgment by one Gar-denier, as referee, to one Nixdorf for $1,425. The referee, who occupied an office in the same building with Silvernail, after executing the deed delivered it to Silvernail, who delivered it to the purchaser, who paid to him the full amount of the purchase-price.</p> <p>The Special Term found that Silvernail did not pay any of the surplus money either to the referee or to the county treasurer, and directed him to pay the amount thereof ($809.77), with interest from October 1, 1875, the date when he should have paid it, together with $195.26 of costs, and directed that, in default of payment after ten days from the service upon him of a copy of the order, an attachment issue for his imprisonment in the county jail.</p> <p>Held, that the facts found justified it in making the order appealed from.</p> <p>That while it was true that the purchase-money ought to have been paid to the referee and not to the attorney, that Silvernail, who procured it to be paid to himself, could not be permitted to raise that objection.</p> <p>Silvernail offered in evidence certain checks showing payments of money by him to the referee, which were objected to as having no connection with the transaction in question.</p> <p>Held, that, as on the face of them they had not any connection with it, and as Silvernail did not, when his attention was called to the matter, offer to show that they had, they were properly excluded by the court.</p> <p>The Special Term permitted proof of the non-payment of the money to the county treasurer, who was dead, to be given by the production of his books and by showing the entries therein to be in his handwriting.</p> <p>Held, that, as it was his duty to enter the receipts of surplus moneys therein, the court did not err in admitting the evidence.</p> <p>That the burden of proving the payment to the county treasurer rested on Silvernail, and that a failure by the petitioners in this proceeding to prove non-payment was not equivalent to proof of payment by him</p> <p>The order directed the referee to take the testimony and report it to the court with bis opinion.</p> <p>Held, that he was not bound to take irrelevant testimony.</p>

The action, which was brought to recover dower, has already been before the General Term, where the principal question involved therein was determined in favor of the plaintiff, the decision being reported in 42 Hun, 369. The question now presented was whether or not the plaintiff, having succeeded, was entitled to costs, of course, or only in the discretion of the court.

The New York State Agricultm’al Society held its annual meeting for the election of officers January 19, 1887. The charter of tlie society provides that only life members, who have been such thirty days prior to election, are entitled to vote, and that sncli members are entitled to vote by proxy.

The action was brought by a creditor of the estate of George Stover, deceased, against James Barr, as executor of the said Stover, and the other defendants, who were the sureties upon his bond, to recover for a breach of the conditions thereof by James Barr, in failing to comply with the directions contained in the decree of a surrogate directing him to make certain payments.