Volume 53 — Howard's Practice Reports

<p> Action between partners—demurrer to complaint. </p> <p>In an action between partners, in order to justify a recovery in favor of the plaintiff for any “specific sum" there should have been a balance struck, or agreed upon, as due from the defendant to the plaintiff.</p> <p>An action for such balance cannot be connected with an action for “an accounting,” unless there be in the complaint appropriate allegations. The court is justified in looking at the prayer for relief in order to ascertain the plaintiff’s view of his own cause of action.</p>

<p>Appeal from an order of the surrogate of the city and county of New York, making allowance to the counsel of respondents, etc.</p>

Application by the attorney-general, 'pursuant to section 17 of chapter 463 of the Laws of 1853, against “ The Continental Life Insurance - Company” to “decree a dissolution of said company and a distribution of its effects, including the securities deposited in the hands of the comptroller.”

<p>, Appeal— Undertaking — when action against sureties may ie commenced.</p> <p>To entitle a plaintiff to maintain an action against the sureties on an undertaking given in pursuance of section 348 of the Code for the purposes of an appeal, notice of entry of the order or judgment affirming the judgment appealed from must he served upon the adverse party ten days before the commencement of the action.</p> <p>The commencement of the action before the lapse of ten days after notice, is fatal to the recovery.</p> <p>This notice, like all other notices required by the Code, must be given in writing, and must be so explicit as plainly to give the information required by the statute.</p> <p>The decision upon an appeal taken by the principal can, in no way, be effectually decided or disposed of by an “ order,” but only by a judgment of affirmance duly perfected.</p> <p>An order is but a decision upon a motion, and is expressly distinguished from a judgment which is defined as the final determination of the rights of the parties. A judgment is to be entered in the judgment book and perfected by the filing of a judgment roll from which the right of appeal from a judgment would begin to run.</p> <p>Notice of the judgment so perfected is the notice required by the statute (Code, sec. 348) to be served on the adverse party ten days before the commencement of the action on the undertaking.</p>

There were two actions pending against the same defendant, one in favor of Hecht and others, and the other in favor of Steiner and others. The answers had been served, and the plaintiffs in each case obtained an order from the Saratoga county judge to examine the defendant before trial under section 391 of the Code. The defendant and the attorneys for both parties resided at Saratoga Springs.

<p> Demurrer to complaint for nonjoinder!' cfpm'ties defendant. </p> <p>Where the complaint alleged that there were “ other individuals comprising the firm of J. B. Lippincott & Company ” besides the two persons made defendant, held, that the other partners are necessary parties, and that to render the omission to make them parties available on demurrer, the defect appearing on the face of the complaint, it was not necessary that it should also appear that the other parties were living.</p> <p>Demubbeb to complaint.</p>

<p>Motion to dismiss proceedings.</p> <p>The application for the arrest of defendant and respondent' was presented to this court on the 24th of April, 1876, upon the ground that the indebtedness, to recover which the action in question was brought, was fraudulently contracted and that the defendant had disposed of a large part of his property with intent to defraud his creditors.</p> <p>The charge under which the defendant was arrested was under the third and fourth subdivisions of section 8, article 10, chapter 5, part 2, Revised Statutes, the sixth edition, page 47.</p> <p>The facts set forth in the affidavits on which the application for the arrest of the defendant was based, and which the judge seems to find was established by the evidence, are fully set forth in the opinion.</p>

<p> Umry—Promissory note made in this state negotiated in another. </p> <p>Where a promissory note, signed, and dated in Hew York and payable at a bank here, is negotiated for the first time in another state, the laws of the state where the note is negotiated are to control as to the defense of usury.</p> <p>The form of the note or obligation may be written here, but it only becomes a note or contract upon its delivery, and it is made when and where it is delivered.</p> <p>A. made his promissory note, dated in Hew York and payable at a bank here, and delivered the same to B. who took the note to the state of Massachusetts where it was for the first time negotiated, C discounting it at a rate of interest lawful there, but more than allowed by the laws of this state. In an action by C. against A. on the note:</p> <p>SeM,' that it was not void for usury, as the laws of Massachusetts must govern as to this question.</p>

<p> Discovery of books and papers of a corporation. </p> <p>Averments contained in a petition for an inspection of hooks and papers of a corporation, merely upon information and belief, failing to’disclose the sources of such information, are insufficient to entitle the petitioning party to such inspection.</p> <p>There should be something more than a mere suspicion or conjecture as to the necessity of the inspection asked for.</p> <p>Under the Code of Procedure and the rules of court heretofore existing, the practice has been to deny similar applications, where the production of the books and papers desired could be secured by a subpoena duces tecum, and the examination as a witness of the party having their custody, either before or on the trial.</p> <p>Although, perhaps, as against a corporation defendant a subpoena duces tecum would have been unavailing under the Code of Procedure, now, by section 868 of the “ Code of Remedial Justice,” which provides that “the production upon a trial of a book or paper belonging to or under the control of a corporation, may be compelled in like manner as if it were in the hands or under the control of a natural person,” a plaintiff has ample means of obtaining the proofs required of a corporation by subpoena duces tecum and the examination as a witness of the party having their custody, either before or after the trial.</p>

In this case the will of Martha P. Wurtz was offered for probate, and probate was opposed by heirs of the decedent. The will was admitted to probate. An appeal was taken from the surrogate’s decision and the general term of the supreme court affirmed the same. The contestants again appealed and the court of appeals affirmed both decisions, declaring .the will a valid one and entitled to probate.

An order was made on the 15th of January, 1877, requiring the defendants to make certain paragraphs of their amended answer more definite and certain by amendment thereof, and also to serve a verified bill of particulars stating the amounts and times of the payments mad'e by the defendants to the plaintiffs on account of the services of the plaintiffs mentioned in the second paragraph of the amended answer with others.

Motion to set aside verdict. The action was tried at the Wyoming circuit, September, 1876, and a verdict of no cause of action was rendered. The grounds upon which this motion is made appear in the opinion.

<p>Action in equity to compel defendants to transfer upon the ° books of the corporation certain stock to plaintiff, and to issue new certificates for the same stock to the plaintiff.</p>

In February, 1873, the testator made his last will and testament, and, after providing for certain legacies, he directed his executors to pay and divide the residue of his estate as mentioned in the opinion of the court. On the 24th of October, 1875, the plaintiff and deceased were married. The testator died in January, 1876, leaving real property of the value of $100,000, and $150,000 in personal estate.

<p>Tee plaintiff, as assignee, brought this action to recover from the defendants the balance due on a contract to build certain sewers in the city of New York executed by his assignors, Messrs. Allen and Henry, and the defendants. The contract and the right to receive the money due and to grow due thereunder wTas assigned by the contractors to the plaintiff October 2, 1871, and the commissioner of public works, on notice, approved and allowed such assignment. The defendants, by their answer, admit that something is due the plaintiff, but refuse to pay the sum claimed by him because: First. The contractors did not complete the work within the limit of ninety days, the time fixed by the contract, and the city had paid to inspectors for inspecting the work, after the expiration of the ninety days, the sum of $1,288. Second. That they were entitled to retain until June 9th, 1872, the sum of $435.60 as security for the relaying of pavement. Third. That the contractors owed the city for sewer pipes, sold them by the department of public works, the sum of $1,351.70. Fourth. That certain material-men had filed liens against the contractors in the sum of $335. The plaintiff's claimed the right to recover $5,498.72. The defendants claimed the right to retain these several sums, amounting to $3,410.36, leaving admitted a balance due of $2,088.42. On the trial it appeared that there was no pavement laid in the street and the defendants withdrew their claim to the sum of $435.60 as security for relaying the pavement. The plaintiff admitted the right of the defendants to retain $1,351.70, the price of sewer pipes furnished by the department of public works. The case was thus narrowed down to the question whether the defendants had a right to retain $1,288 for “excess of inspection” and $335 claimed to be covered by</p> <p>liens filed. The referee found that the city had not the right to retain the money, and reported that the sum of $4,807.31 was due plaintiff, and the defendants appeal.</p>

<p> Counter-claim—when cannot he set up. </p> <p>Where one defendant is sued upon an individual liability, he cannot set up as a counter-claim a claim which he holds jointly with another against the plaintiff.</p>

The action is upon a prommissory note for $3,224.94, made by defendant to order of Baldwin & Kimball, the plaintiffs.

This action was brought for malicious prosecution. The defendant demurred to the complaint. This demurrer was sustained at special term. On appeal to the general term, the order sustaining the demurrer was reversed and leave was given to the defendant to answer. The defendant thereupon answered the complaint, and upon the issue thus joined moved at special term, in Kings county, for an order changing the place of trial, which was laid in the complaint in the county of Kings.

<p>Demurrer to the complaint, in an action to foreclose a mechanici’s lien under the act chapter 379, Laws of 1875.</p>

<p>JVemu/rrer to complaint—Specific performance— Gontmct—Breach— Tender, when excused.</p> <p>The complaint set out an agreement or contract in writing for the delivery of a deed of land and the payment of the consideration on or before May 1,1875. It was also averred that before that day the party whose duty it was to deliver the deed applied to the party who was to pay the consideration, to name a time and place for performance; to which such party did not reply. It is also alleged that he subsequently executed a deed, in due form, and made all reasonable efforts to find and communicate with the other party to complete the agreement, but which efforts, through the acts and omissions of the other party, were unavailing:</p> <p>Held, that the complaint, although it failed to show a strict performance of the agreement by the plaintiff, alleged such a state of facts as-directly tended to excuse it, and which entitled him to have the agreement specifically performed.</p> <p>The omission of the plaintiff to have the deed executed on or before the 1st of May, 1875, and tendered on that day at defendant’s residence, was equitably excused by the other acts performed by him. A formal tender was waived by the acts and omissions of the defendant.</p> <p>The fact that all the relief which may be essential to such an action has not been claimed, does not render the complaint so defective as to make it the sulge'ct of a demurrer. To avoid that consequence it is sufficient that the facts constituting an equitable cause of action have been alleged and that the relief insisted upon is appropriate too, while it may not be all that will be required for a complete or perfect judgment (Affirming S. 0., 53 Sow., 479).</p>

<p>Os the 14th day of August, 1873, the plaintiff and the defendant Jeptha W. Babcock contracted a mutual engagement to marry; it was understood by both at that time that their contemplated marriage should take place in a few days thereafter. At this time both parties were residents of the city of Lockport, in this state, and each owned and possessed real and personal estates of about equal amounts and value. The plaintiff was at that time a widow, upwards of sixty years of age, and the defendant, Jeptha W. Babcock, a widower sixty-seven years of age; both had children of former marriages, of adult age. The defendant Isaac H. is the son, and Sarah Elizabeth Balliett is the daughter, of the defendant Jeptha W., and his only children. Jeptha W., at the time of his engagement to marry, was seized in fee of a lot upon which was a dwelling-house occupied by him, in Ontario street, and also other real estate on Niagara street, in the city of Lockport. This real estate was worth from $12,000 to $15,000, and it was all the real estate owned by him.</p> <p>In addition to this, he had personal estate amounting to a few thousand dollars. At the time the marriage agreement was made, the plaintiff had knowledge of what property her intended husband possessed.</p> <p>On the eighteenth day of the same month, Jeptha W. conveyed by his deed the house and lot on Ontario street to his daughter, the defendant Sarah E., and at the same time he conveyed the Niagara street property to Isaac H., his son, and Sarah E., his daughter, reserving to himself a life estate in all said property. Both said deeds were duly acknowledged and delivered on that day, but were not put upon record until the fourth day of April following. The grantees in said deeds had knowledge, at the time such conveyances were made and accepted, that the grantor and the plaintiff had contracted to marry, and were intending to marry in a short time thereafter. That said deeds were voluntary on the part of the grantor; no consideration having been paid or agreed to be paid therefor by the grantees. That, on the twenty-first day of the same August, the plaintiff and Jeptha W. did intermarry, in pursuance of their agreement so to do. The plaintiff, at the time of the marriage, had no information that her husband had conveyed all his real estate to his children, and she now brings this action to obtain the judgment of the court, declaring said deeds void as to her, and that she has an inchoate dower right in all said real estate, notwithstanding said deeds, and a future absolute right of dower therein upon the event of the death of her husband in her lifetime.</p>

The admitted facts as to the citizenship and residence of the parties appear in the opinion. Judgment in the Louisiana action was first taken by default for want of an answer. According to the judgment record (in evidence) an answer was afterwards interposed on behalf of the defendant and the default opened by an attorney and a trial had, or inquest taken, and final judgment rendered for the plaintiff.

The parties are husband and wife, and the action is for a limited divorce by reason of alleged cruel and inhuman treatment of the wife by the husband, and the order of arrest was issued upon the complaint and the plaintiff’s affidavit. The motion was made on the same papers.

Application by the defendants, judgment debtors, in ° actual custody under the order of arrest, for their discharge from imprisonment pursuant to section 288 of the Code, on the ground that the plaintiff has negletited to issue execution against the persons of such defendants for more than three months since the entry of judgment.

This is an appeal by the petitioner, Walter Brady, from an order of the general term of the supreme court of the first department, reversing an order of the special term, entered in a proceeding under title 1, chapter 5, article 6 of part 2 of the Revised Statutes, discharging the petitioner from imprisonment on execution, and denying the applicant’s petition for a discharge.

Oh the 3d of February, 1876, William Pickhardt and Adolph Kutroff recovered a judgment in the supreme court of this state against the defendant Locke, and such proceedings were thereupon had under such judgment that the plaintiff was appointed receiver of the property of the judgment debtor and duly qualified as such.

The complaint is for damages for alleged libels. Upon an affidavit the usual summons and order for examination of defendant, as a party before trial, were granted by judge Robinson, on the 28th day of February, 1877.

<p> Bwpplementwry proceedings—appointment of receiver —property vests without any assignment. </p> <p>Since the Code, the appointment of a receiver, in proceedings supplementary to execution, vests in the receiver all the property, both real and personal, of the judgment debtor, without any assignment</p>

This suit was brought by Seabury & Johnson, plaintiffs, for an injunction against John M. Grosvenor, for an alleged infringement of a trade-mark.

Browning made a mortgage for $20,000 to Stuyvesant, but the same, as between the parties, was without consideration. The mortgage was sold and assigned by Stuyvesant to Powers for the sum of $16,600, it being represented to Powers at the time by both mortgagor and mortgagee, the mortgagor making anaffidavit thereto, that the mortgage was an honest security, and that the amount had been actually received by the mortgagor as a consideration for the mortgage.

<p> Qhwi'ch buildings exenvgtfrom, taxation—relief in equity from tax—extrinsic facts. </p> <p>Certain lands of the plaintiff with the buildings thereon, were, by statute, exempt from taxation, the same being used exclusively for public worship, _</p> <p>Held, thát the plaintiff could maintain an action in equity to set aside a tax imposed thereon, and a sale made for its non-payment, no deed having been executed to tbe purchaser, the invalidity of the tax not appealing on the face of the assessment, but-required to'be established by extrinsic facts.</p>

Action for specific performance. The material facts in this case are as follows : The plaintiff and the defendant being in treaty for the purchase and sale of the house in question, met at the defendant’s office on the 26th of April, 1875, for the purpose of continuing the negotiations. The plaintiff brought to this place of meeting a printed form of contract, in duplicate, filled in with a description of the premises.

<p>Ufe insurance company—application for appointment of receiver—section 7, chapter 902, Laws of 1869.</p> <p>The provisions of section 7 of chapter 902 of the Laws of 1869 make it the duty of the superintendent of the insurance department, whenever the affairs of any life insurance company which has deposited securities under this act, or the act hereby amended, shall, in his opinion, appear in such a condition as to render the issuing of additional policies and annuity bonds of said company injurious to the public interests, to report that fact to the attorney-general, whose duty it shall then he to apply to the supreme court for an order requiring the company to show cause why a receiver should not be appointed, and its business closed up.</p> <p>When the superintendent reports to the attorney-general as the statute prescribes, the latter must submit the facts to the court, and that tribunal must proceed as the law directs.</p> <p>The supreme court has no power to review the preliminary action of the superintendent in making his report. If any error has been committed or mistake made by the superintendent, the hearing, and that alone, will remedy it.</p> <p>But it must be proved, to the satisfaction of the court, upon the investigation, that there is danger to the public interests by the continuance of the business of the company, before it would be warranted in making the final order, arresting future operations and appointing a receiver.</p>

This action was brought to foreclose a mortgage, and 'the defendants set up usury as a defense. The following are the facts as found by the court: First. That the plaintiffs, the Real Estate Trust Company, are a corporation created under and by virtue of an act of the legislature of the state of Sew York, entitled “ An act to incorporate the Real Estate Trust Company,” passed April 19, 1871, and the various acts amendatory thereof. Second.

The action is brought to dissolve marriage on the ground of adultery of the defendant with one William Zandt. The answer denies the adultery, and alleges condonation. Upon consent, an order of reference was made to hear and determine all the issues. The referee reported in favor of the plaintiff upon all the issues. The defendant duly filed her exceptions to the referee’s report. The plaintiff moved, upon the referee’s report and the testimony, to confirm such report.

to be frivolous. The action was upon a promissory note owned by the plaintiff. The complaint did not allege that the plaintiff was an incorporation. The answer was substantially as follows: “ First.

<p>Reference— Oom/pla/int—Account stated and settled..</p> <p>Where the complaint is so framed that the plaintiff must recover, if at all, upon an account stated, although a number of items entered into such account, an order of reference is unauthorized.</p> <p>The only, proof necessary or proper in such a case must relate simply to and must establish the liquidation and settlement of the amount of defendants’liability at the date when such statement and settlement are claimed to have been made.</p> <p>The case does not require the “examination” of the account containing the items which entered into such account, thus alleged to have been stated and settled, but only the determination of the issue as to whether such account was or was not stated and settled-in the manner and to the extent alleged in the complaint.</p>

<p>Appeal from an ordér allowing costs to the relator (See 52 How., 73).</p>

<p>Husband and wife — ante-nuptial agreement as to Iwr separate estate—creditors of husband.</p> <p>Where, after marriage, the husband paid the interest on a mortgage on the separate property of his wife, and for its benefit, in pursuance of an agreement between them before marriage, that if he occupied a portion of her premises after marriage, as an office for his business as a physician, he would pay interest on the mortgage in lieu of rent.</p> <p>Held, that the agreement was valid, and that the payment was not in fraud of the creditors of the husband. '</p>

Motion by defendant for a readjustment of costs as to an item of forty dollars allowed for reargument. The plaintiff had a verdict at the circuit, the defendant appealed, the general term affirmed the judgment, the defendant moved the general term for leave to go to the court of appeals. The defendant paid the costs of the appeal, including forty dollars for argunent.

Os the trial of this action before judge Westbrook and a jury, commencing June 19, and on June 26, 1877, after the plaintiffs had introduced all their evidence and closed the case for the prosecution, the defendant moved for a nonsuit, on the general ground that the testimony was insufficient to establish any cause of action. At the conclusion of the arguments on such motion the opinion was delivered.

<p>This action was brought in the first district court of the city of New York.</p> <p>On the return day, when the defendant answered in the court below, the action was adjourned by common consent. On the adjourned day the defendant was in court with his attorney and witnesses ready for trial. The plaintiff asked for and obtained an adjournment. On the adjourned day the defendant was again in court with his attorney and witnesses ready for trial. The plaintiff again applied for and obtained an adjournment. On the next adjourned day the defendant was sick and unable to attend court; this was stated to plaintiff and the court, and an affidavit made and an adjournment applied for by defendant’s attorney on that ground, which was denied, and plaintiff entered a judgment by default.</p> <p>Defendant applied to the court below to have the default opened, and to try the cause there, which application was resisted by plaintiff. The default was opened by the court on condition that defendant pay plaintiff ten dollars costs.</p> <p>The defendant has duly appealed to the general term of this court, from the judgment entered against him for sixty-nine dollars, in the first district court, on the ground that no evidence whatever was given in the court below to warrant or support the judgment.</p> <p>The plaintiff now moves to dismiss such appeal, on the ground “ that no appeal lies from a judgment taken by default, and also that the defendant, appellant, obtained all the relief under the order opening his default in the court below that he could be entitled to on the appeal if successful.</p>

Demurrer to complaint, on the ground that it does not state facts sufficient to constitute a cause of action.

<p> Oon/e&t'sion—discretionary power to sell read estate—Descent, </p> <p>A mere discretionary power to sell real estate does not create a conversion. Upon the death of the cestui que trust, the estate descends directly to the</p> <p>persons entitled, and the power of sale, as to such share, ceases. ‘</p>

<p>Moneys had and received — Tort — Attorney at km — Counter-claim.</p> <p>Where a party brings an action for money had and received, for the purposes of the action, he waives a tortious receiving or withholding the money.</p> <p>The character of the action is determined by the complaint, and not by the form of the summons.</p> <p>An allegation that the defendant “ received the money as an attorney at law,” does not necessarily make his refusal to pay over wrongful. He may still have a valid ground for holding on to the money. To have that effect, it must be alleged that he wrongfully withholds the money. To an action brought against an attorney at law for moneys received by him as such, he may set up by way of counter-claim a demand in his favor against the plaintiff for services rendered.</p>

<p> Mandamus—assessment of damages by reason of change of grade of a street. </p> <p>Mandamus is the appropriate remedy to compel the assessment of damages done by reason of the change of the grade of a street.</p> <p>It is the duty of the board of assessors of the city of New York to estimate such damages when applied to, notwithstanding the expense of the work of conforming to the new. grade has not been certified to them.</p> <p>Where a statute directs payment to be made in a particular manner, as by the issue of assessment bonds, the comptroller may be compelled by mandamus to act as directed by.the statute.</p>

<p> An executor cannot pledge propendy of the estate as security for loans to himself individually. </p> <p>Where a person advances money to one of two executors and receives as security therefor scrip of bank stock belonging to the estate, he having at the time reason to know and believe .that the money was not borrowed for the benefit of the estate but for the private use of such executor,</p> <p>Held, that the lender of the money cannot hold the stock as security for the advances, nor compel a transfer to him of the stock on the books of the bank.</p>

The facts fully appear in the complaint, which is as follows : The plaintiff in the above-entitled action, complaining against the defendants therein, alleges the following facts constituting his cause of action : 1.

<p>Life insurance company — Eeceiver — Laws of 1869, chapter 902.</p> <p>Where it appears to the satisfaction of the court that the assets and funds of a life insurance company are not sufficient to justify the further continuance of the business of insuring liVes, granting annuities and incurring new obligations, the act (Laws of 1869, chapter 902) is impei'ative as to the duty of the court to enjoin the company from the further prosecution of its business, and to appoint a receiver of all the assets and credits of the company.</p>

<p>Landlord and tenant—Pleading— Oounter-elaim to action for rent.</p> <p>To an action for rent the defendant set up, by /Way of counter-claim, damages arising from the erection of buildings on an adjoining lot, the intention of the adjoining owner to build being, as alleged, fraudulently concealed at the time the relation of landlord and tenant was created. Held, on demurrer, that the counter-claim was insufficient. Building is not necessarily injurious to adjoining occupant.</p>

The complaint in this action alleged as follows: First. That the defendant is a corporation of the state of Pennsylvania, and owner of the Pennsylvania railroad, with its tracks, cars, locomotives and other appurtenances. Second. That on or abput the 6th day of April, 1875, one Charles Stallknecht was in defendant’s employment as brakeman on a freight train, the property of defendant, which was propelled by steam on the defendant’s railroad. Third.

Application by plaintiff for an injunction restraining the defendant in the enlargement and alteration of certain buildings in the city of New York which adjoin the dwelling of the plaintiff.

<p> Mortgage—assignment thereof sutgeat to the equities of the mortgagor—Bona fide purchaser, who is not. </p> <p>An agreement was made between R. and S. that S. should pay a mortgage made by C., in consideration whereof R. agreed to cancel a mortgage he held, made by S.</p> <p>Held, that this agreement bound the assignee of the S. mortgage, who took the same from R. with knowledge thereof, as also the Broadway Bank, who afterwards received the mortgage from such assignee, as security fen' a debt, and that S., having paid the mortgage of C., was entitled to a satisfaction of his own mortgage in the hands of the bank. Ingraham, agt. Bisborough (47 N. T., 431), Outts agt. Guild, (57 id., 333) applied.</p>

In January 1873, one George W. Willet was the cashier of the Bull’s Head Bank, of which bank the defendant Yoorhis was a director, and of which both Wheaton and Yoorhis were depositors.

This action was brought to recover possession of certain personal property which the plaintiff had sold to the firm of Lynde Brothers, who shortly afterward assigned the same, together with all their other assets, to the defendants, by a general assignment for the benefit of creditors. The date of the assignment was April 7,1873, and the date of the purchase was March 31, 1873.

<p> When hoard of health a, necessary pa/rty to am, action against the city of New York. </p> <p>Where a contractor had failed to perform his contract for the removal of “night soil,” and the board of health passed a resolution and acted thereunder, directing its immediate removal:</p> <p>Held, that the board of health, under the fifth section of chapter 636 of Laws of 1874, was a necessary party to an action by the contractor against the city of New York.</p>

<p>Sale of property by order of the court—Refusal of deed,— Resale ashed for, because premises were sold at less than them' mime.</p> <p>A court for mere inadequacy of price, unconnected with any otner reason or cause, will not order a resale unless the price obtained be so grossly inadequate as of itself to furnish evidence of fraud.</p> <p>Where property has been sold at a judicial sale, the court will not, when the sale has been well advertised and a large attendance of buyers secured, and there has been no surprise, misunderstanding or fraud, and no binding offer from any responsible party to pay a larger sum upon a resale, refuse to confirm such sale merely because some persons say they will pay a larger, price hereafter, especially when such an opportunity has been fairly afforded and refused.</p>

Motion to set aside execution and imprisonment of defendant.

The following opinion was rendered at special term, January, 1877, which, together with the findings of fact and conclusions of law, contain a complete statement of the case:

<p>Beformation of a written instrument — what must be proven—Tender.</p> <p>To justify a court of equity in changing the language of a written instrument sought to be reformed, it must be proven, and that by proof so clear and convincing as to leave no room for doubt, that it was the intention of both parties to make a contract, not as it appears, but as it is claimed it should have been, and that the intent was frustrated by fraud or mutual mistake.</p> <p>It is not enough for the party seeking the reformation to show his own intention, and that he never agreed to the terms of the contract. His remedy, in such case, is to have the contract canceled on that ground.</p> <p>A tender is not good which was accompanied by a condition which was not called for by either the bond or mortgage, in payment of which the tender was made.</p>

This was an appeal from action of the Utica common council, brought into this court pursuant to the provisions of the Utica charter, which is chapter 18, Laws of 1862.

<p>Action by a wife to restrain the use by a husband of a written confession of adultery obtained from her by fraud, and duress— Complaint—Demurrer.</p> <p>Where a husband, having obtained from his wife, by fraud and duress, a confession, in writing, that she had committed adultery, commenced an action against her for divorce upon the ground of adultery :</p> <p>Held, in an action by the wife to restrain the use of such confession in said divorce action, that it would be so great an injustice to allow the defendant to use as evidence a confession obtained under such circumstances that a court of equity must interfere.</p> <p>Held, also, that the wife has such an interest in this confession that she can maintain an action to restrain its use in this way. She has the same interest in this confession that she would have in any letter which might be written by her, and she could maintain an action to restrain the improper publication of any letters which she might have written.</p>

<p> Demurrer—Answer. </p> <p>When a defendant demurs to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and afterwards answers the complaint, the answer is a waiver of the demurrer.</p>

This is an action brought against Elkin Hyman and Isaac Mayer, as members of the firm of Hyman & Mayer, upon a promissory note for $1,571.39, made by them to their own order, and indorsed to the defendant Sigmund Kohn, who, before its maturity, indorsed and delivered it to plaintiff for its value. The court directed a verdict for the plaintiff.

<p>Eescission of contract—Fraudulent suppression of foot—When purchaser map rescind — Executor’s power of sale— Tender.</p> <p>A contract for the purchase of real estate, which contract required the seller to give a perfect title, in fee simple, free from ail incumbrances, may be rescinded where, at the time of the execution of the contract by the seller and the delivery of the deed thereunder, he fraudulently suppressed a fact which rendered the title imperfect. -</p> <p>Where a party has, by the fraudulent suppression of the existence of incumbrances, induced another to take the title to property, the purchaser is not bound to wait an unreasonable time in order to give the seller an opportunity to remove those incumbrances before he can rescind.</p> <p>Where any executor neglects to take upon himself the execution of a will, any power of sale contained in the will may be executed by the executor or executors who shall take upon themselves the execution of such will.</p> <p>About November, 1873, the plaintiff conveyed a part of the premises in question to Raynor & Morris, who were copartners with him in his purchase. On the 20th of April, 1876, the executors of Raynor and Morris, they having died, reconveyed this portion to plaintiff, and on the 25th of April, 1876, this action was commenced ; on the 5th of May, 1876, the plaintiff made a general assignment; on the sixth of November the defendant tendered a deed, executed by himself and wife, to the plaintiff. The contract of sale which the plaintiff, by this action, seeks to rescind, was executed in March, 1872 :</p> <p>Held, that the plaintiff did not lose his right to rescind by his delay in making the rescission, as such delay was caused solely by the representations of the defendant that he would make the title all right.</p> <p>Held, also, that the conveyance to Raynor and Morris could not deprive these parties of the right of rescission, because such conveyance simply put the legal title where, in equity, it belonged.</p> <p>Held,, further, that the conveyances to plaintiff vested in him the whole title to the property, and his deed tendered to the defendant was, therefore, sufficient.</p> <p>The subsequent assignment of the plaintiff could not change the status of the parties, which had become fixed on the 35th of April, 1876.</p>

To the honorable the judges of the court of common pleas of the city and county of New York: The petition of Eobert W. Aborn, James Moir and Edward Baldwin, composing the firm of Aborn, Moir & Co., of the city of New York, respectfully shows: That they are residents of the city and county of New York, and creditors of Abraham S. Herman to the amount of $1,759.88, for merchandise by your said petitioners sold and delivered to the said Abraham S. Herman, between and including…

<p> Contract—Bond—Bwreties—want of publication—Assessment—action to restt'ain its coUeation. </p> <p>A resolution of the common council of the city of New York, authorizing work to be done, is required to be published in the corporation papers, and the want of publication is fatal to a contract.</p> <p>The legislature cannot by an ex post facto law make a party liable for damages for the failure to perform a contract which at the time of its breach was void.</p> <p>Where the contractor abandoned his contract in 1871, and the legislation validating the contracts took place subsequent to that time, the rights of the sureties on the bond of the contractor had become fixed and could not be affected thereby.</p> <p>The municipal authorities of the city of New York are the agents of the property owners, and a bond of a contractor taken for the faithful performance of his contract is taken for their benefit, and in case of the non-fulfillment of the contract the bond should be collected, and the amount thereof applied in diminution of the assessment.</p> <p>An action may be maintained by a property owner to restrain the corporation of the city of New York from collecting an assessment without crediting him with the proportionate amount of a bond-given by a contractor for the faithful performance of his contract, and which he failed to perform, the work under which being done by a subsequent contractor at a much higher rate.</p>

Motion by defendant for a new trial on a ease with exceptions, and. also upon affidavits relating to alleged newly-discovered evidence, and misconduct of a juror.

<p>Injunction — Ansioer — Parties — Waiver.</p> <p>A court is not justified in interfering with an injunction, unless the equities of the complaint be denied on positive knowledge and not on information and belief.</p> <p>To authorize an injunction restraining the employment of any agent other than the plaintiff by the successors of one who had contracted that such plaintiff should be his sole agent, it is not necessary to show that the successors knew the terms of the contract under which such agent was appointed; it is sufficient to show that they knew him to be acting as agent; it was for the successor to inquire as to. the terms of the appointment.</p> <p>An objection that the necessary parties are not before the court must be raised by the answer. If not so raised it must be deemed waived, and cannot be urged upon a motion to vacate an injunction.</p>

<p>Will—residuary clause— Trust — Intestacy — Devise in lieu of dower — Distribution— Costs.</p> <p>Where a testator gave to his wife $5,000 to invest same and apply the income to the use and benefit of his son Leopold for life, and further directed that the share of Leopold, in the residuary estate should also be paid to his wife, to receive the income thereof and apply the same to the use and benefit of said son L.:</p> <p>Held, That the sum of $5,000.did not pass under the residuary clause of the will, but that as to the same, after the death of Leopold, the testator died intestate.</p> <p>Also held, that a bequest and devise to the testator’s wife “in lieu of dower ” did not exclude her participation in the personal estate, as to which he died intestate.</p> <p>Where the testator, by the residuary clause of his will, gave the remainder of his estate to his wife and five children, share and share alike, but directed the share of his son Leopold to be paid over to the testator’s wife, in trust, to apply the income to the use and benefit of Leopold for life:</p> <p>Held, that upon the death of Leopold the portion of the estate designed for his support went to his heirs and next of kin.</p>

Action by a general creditor to set aside conveyances made by the husband to the wife during his lifetime, on the ground of fraud.

This is an action to reform and revoke a deed of trust made by the plaintiff to the defendants. The said deed conveyed to the defendants certain property in trust to collect the income and profits of the same and pay the same to the plaintiff during her life, and after her death to pay such income to one Elizabeth T. Conkling, and after her death to divide the principal among certain persons in said deed named.

<p>'Gifts inte,r vivos, when not disturbed— Creditors.</p> <p>Where a woman, the owner of fifty-six shares of stock in the Home Insurance Company, during an illness, of which she afterwards died, in a letter written in Ireland to her sister in New York made a disposition of the shares to certain persons named in the letter, and also made provision for the payment of a sum of money she owed, and afterwards executed to her sister a power of attorney authorizing her to take all needful measures to effect a transfer of the stock, and the power having been executed by the surrender of the scrips to the company, and the issue of her shares to the donees mentioned in the letter, in part at least during the lifetime of the donor, it not appearing that she owed any debts other than the one named:</p> <p>Held, that the gifts and dispositions made would not be disturbed by this ' court, in an action brought by a brother of the donor who sought to set them aside as invalid.</p>

<p>The above-named bankrupts were duly adjudged bankrupts by the district court, upon a petition filed against them by their creditors, on the 4th of August, 1874.</p> <p>The said bankrupts filed their schedules in this matter, and James T. Leavitt was appointed assignee.</p> <p>The assets of the bankrupts were turned over tó the assignee, and consisted, according to his statement, of the remainder of their stock of goods, which was sold at auction under the direction of the assignee, and from which sale was realized in gross the sum of $4,010.06,</p> <p>The said bankrupts claimed to have no cash on hand, and none was received by the assignee except such as was realize'd from the sale aforesaid, and about $800 collected from some outstanding accounts due the bankrupts, and safe and pictures.</p> <p>The debts and bills receivable set out in .the schedules were surrendered to the assignee.</p> <p>The debts owing by the said bankrupts amounted to about $55,000, principally for merchandise.</p> <p>At the time of their bankruptcy the said debtors were engaged in the city of New York, in the business of manufacturing of clothing.</p> <p>On the 27th day of November, 1875, a petition, affidavit and notice of motion was served on the bankrupts, and filed in the district court by the assignee, praying that the bankrupts be required to account and pay over to him the following property and moneys, to wit: The sum of $7,147.05, drawn by Joseph Mooney from Janftary 1, 1874, to July 16, 1874. The sum of $8,421.10, drawn by Isaac Mooney during the same time. The sum of $1,600 paid to and drawn by Leopold Mooney, from April, 1873, to July 16, 1874. The sum of $3,200 drawn out over the real expenses of their business from April 30, 1874, to July 16,1874; and also merchandise, or the proceeds thereof, of the value of $30,000 and over. That the said bankrupts be cited to appear and account for and pay over such property or such part thereof as the” court may find that they possessed, owned or had under their control and possession at the time of the filing of the petition in bankruptcy, and that upon their failure to comply with the order or decree of this court to be made in the premises, they and each of them be attached and punished as for a contempt of court, and that such other relief be granted as may be just.</p> <p>To this petition the bankrupts answered as follows:</p> <p>The bankrupts, Joseph Mooney and Isaac Mooney, answer the petition of the assignee herein, as follows:</p> <p>They admit having on hand on the 1st day of January, 1874, goods of the value of about $10,000, and that they thereafter, up to the time of their failure, purchased goods of ■ the value of $65,906.16 or thereabouts, out of which they sold goods of the value of about $49,802.71, leaving a balance to be accounted for of about $16,000, exclusive of profits.</p> <p>At the time of their adjudication they had on hand goods of the cash value of about $30,000, which, in fact, cost about $40,000, all of which they surrendered and' delivered up to their assignee herein.</p> <p>They have fully and fairly accounted to said assignee for all property or money belonging to their estate at the time of their failure, and all moneys drawn by them or paid to any person was drawn and paid in good faith, and duly and regularly entered in their books,-in the possession of said assignee:</p> <p>The money drawn by said bankrupts for their personal use, up to the date of their adjudication, has been duly accounted for.</p> <p>• The money paid to Leopold Mooney was paid to him in good faith, and so appears from the books of said bankrupts as having been money deposited by him with them, covering' a period of about nine years prior to said adjudication.</p> <p>And further" answering the petition of said assignee, said bankrupts aver that prior to making said petition, said assignee comménced two certain suits in the United States district court for the southern district of Uew York; one against the said Leopold Mooney and the other against H. Rich, to recover from them the identical sums of money sought to be reached by this present proceeding, which said suits are now pending and undisposed of, and said bankrupts urge the pendency thereof in bar of this present proceeding.</p> <p>On the 10th day of June, 1876, a reference was ordered to Isaac Dayton, one of the registers in bankruptcy, to examine the bankrupts as to the property, and- the several sums of money alleged in the petition of the assignee to have been in their possession at the .time the petition in bankruptcy in this proceeding was filed against them.</p> <p>The bankrupts appeared before" the register and were examined, and the referee reported, as the result of the examination, and in his opinion, that the said bankrupt, Isaac Mooney, has not fully accounted for the said sum of $1,149.05 received by him at or about the time of the filing of the petition in bankruptcy herein; that the said Joseph Mooney, at the time of the filing of the petition, had in his possession at least the said sum of $3,300.</p> <p>And the said bankrupt, Isaac Mooney, has not fully accounted for the said sum of $8,421.10 received by him at or about the time of the filing of the petition in bankruptcy herein; that the said Isaac Mooney has not accounted for $3,300 of the said sum of $8,421.10; and that the said Isaac Mooney, at the time of the filing of the petition in bankruptcy herein, had in his possession at least the said sum of $3,300.</p> <p>And that an order ought to be made in the said bankruptcy, requiring the said bankrupts, each of them, to pay and deliver to the assignee in bankruptcy the said sum of $3,300 so as aforesaid, at the time of the filing of the petition in bankruptcy herein, in their possession.</p> <p>Upon this report a motion was made for the order prayed for in the petition of the assignee, which motion was denied by judge Blatcheobd in the district court, as follows:</p>

The action was brought for the specific performance of a contract for the sale of real property. After the case was at issue, but before trial, the parties made a settlement of the subject of the action, notwithstanding which, the defendant’s attorney insisted upon proceeding with the action unless his costs were paid him. The plaintiffs thereupon moved for a dismissal of the action.

<p>Partnership—agreement to share in the profits— Complaint—Defense.</p> <p>An agreement between parties to share in the profits which might arise out of the purchase of real estate, is sufficient to constitute a partnership as to third persons, no matter what they may be inter sese.</p> <p>There may be a copartnership in real estate, and it is not necessary to the existence of such partnership that it be evidenced by a written agreement signed by the partners; but it may be created by parol. Where the ostensible partner is alone known in the transaction, all persons are held responsible as partners to third persons who are to share in the profits.</p> <p>It is no defense to an action that a smaller claim than the party is entitled to is made in the complaint.</p> <p>Defendant D. made a contract with E. for the purchase of the land in question. It was agreed between R., the defendant D. and the defendant G., that the property should be bought for then joint benefit; R. contributing one-half, D. one-squarter and G. one-quarter. It was further understood that D. should take the title and give back the mortgage. The parties each contributed their proportionate share of the purchase-money, and as long as interest was paid upon the mortgage, each paid his proportionate share of such interest.</p> <p>Held, that R., G. and D. were copartners in the transaction, and all were liable for the debt created in that enterprise.</p>

<p>The above-named Joseph Smal was, by an order granted by the supreme court of this department, arrested for falsely and fraudulently contracting the indebtedness which was the subject of an action brought against him by the creditor, Jacob Tartter, in a suit in said court, in March, 1876. No motion was ever made by him to vacate that order of arrest, and the same has ever since remained in full force and effect therein against him.</p> <p>After issue was joined by his sworn answer in that action, the suit came to trial at a special circuit of said court, and on the 9th day of May, 1876, judgment was rendered against him for- $2,137.40 damages, including interest, the full amount of the plaintiff’s claim therein.</p> <p>On the 10th day of May,, 1876, judgment for $2,326, damages and costs, was entered in favor of said Jacob Tartter against said Joseph Smal, in the office of the clerk of this county, in said action; and on the same day execution thereon was duly issued to the sheriff of this county against property of the said Joseph Smal, and thereafter duly returned “ nulla bona ” by said sheriff.</p> <p>Thereupon,, and on the 5th day of August, 1876, an execution upon said judgment was duly issued against the person of Smal, to the same sheriff, and the said Smal duly charged in execution thereunder, and has ever since been in full force and effect against him.</p> <p>On the 14th day of November, 1876, the said Smal, by the service of his petition, with notice of motion, commenced proceedings in said supreme court, in this department, for his discharge from said execution against his person, as an imprisoned debtor under the sixth article, chapter 5, title 1, part 2 of Eevised Statutes.</p> <p>This application was opposed by Mr. Tartter, and after a full and exhaustive hearing and examination of Smal before the court, the motion for his discharge was fully argued before, and submitted to, justice Donohue, of that court, on the 24th day of December, 1876, and that on the twenty-sixth day of the same month the said justice denied the motion and remanded the prisoner to the custody of the sheriff under the said execution against his person, and an order to that effect was on the same day duly entered, and on the second day of January next following duly served on the said Smal’s attorney in that proceeding.</p> <p>Thereafter, and on the 10th day of January, 1877,- said Smal moved before said justice Donohue for a reargument of said motion, and the same was by said justice Donohue denied, and an order to that effect duly entered, and on the thirteenth day of January, same year, a copy of the last-named order duly served on the attorney for said Smal in those proceedings.</p> <p>No appeal has ever been taken by said Smal from either of those orders of 26th December, 1876, and 10th January, 1877, and each of them still remain in full force and effect against the prisoner.</p> <p>The said Joseph Smal did thereafter, by another attorney,</p> <p>in this court, institute the same proceedings for his discharge from said imprisonment under the same statute, namely:</p> <p>' Article 6, chapter .5, title 1, part 2, by service of his petition and notice of motion in this court therefor, on the sixteenth day of March last past, returnable at special term thereof) on the thirty-first day of the same month, at ten o’clock in the forenoon,- or as soon thereafter as counsel1 can be heard. Which proceedings were, after many adjournments, had on the 13th day of May, 1877, and dismissed on Smal’s failure to appear, and his application for his discharge, and all proceedings thereunder, denied.</p> <p>On the 6th day of July, 1877, said Smal again makes the same application to this court upon the same kind of papers, .returnable July 25, 1877, at special term.</p>

<p>Will — construetwn—void devise.</p> <p>Where a testator gave the income of his estate to his four daughters, to be divided between them equally “during their, and each of 'their, natural lives, with remainder to their respective children, and to their respective heirs, it being further provided that if either daughter should die without issue, the share of such deceased daughter should be divided between the survivor or survivors of them, share and share alike, &c.: ”</p> <p>Held, that the testamentary disposition was void, as creating a limitation beyond two lives in being at the testator’s death.</p>

<p>Assignee—Accounting—Reference to talce and state assignee's accounts— What compensation to he allowed assignee, trustee and coumel.</p> <p>The courts, in the distribution of estates intrusted by law to their administration are, to a great extent, acting for absent creditors or unrepresented parties, who repose, with confidence, upon the judicial care and watchfulness of the courts of their interests. No right exists in such tribunal to sequester the money equitably belonging to others in lavish and injudicious allowances to trustees, or their attorneys or agents, engaged in such administration, or to counsel who appear in the proceeding for distribution, but they are bound to regard every dollar thus appropriated as involuntarily exacted and levied from its lawful owner for the necessary expenses of administration.</p> <p>Motion to confirm the report of a referee appointed to examine into the accounts of an assignee, which proceeding for such an accounting originated upon the petition of a creditor of the assignor to the extent of some $134. Upon the return of that application, the assignee obtained an order for a final accounting, and upon the return day the order of reference was made. The referee proceeded to take and state the accounts as required by the order of reference, and as authorized by the amendment to section 4 of the act of 1860 {chap. 348), as made by chapter 56 of Laws of 1875. Among other items awarded by the referee, and submitted to the court for its approval, are the following, viz. : First. That the counsel for the petitioning creditor, to whom less than $150 was due, should be paid $400 for his services. Second. That the special trustee, whose accounting was in a measure involved, and whose legal commissions, at the rate allowed by law to executors and administrators, amount to $3,820.50, should be paid, as a compensation for his services, $6,000. Third. To the assignee, instead of $11,392.91, his legal commission at the like rate, “should, in consideration of the laborious nature of his duties, and the great skill and fidelity displayed ' by him,” be paid the sum of $40,000; and, Fourth, that the attorneys for the assignee, for services rendered by them in the matter of the accounting, “and preparation of reports of proceeding, petitions, for general citation, issue and service of same, arid attendance in court and before referee,” should (in addition to $1,000 theretofore paid them by the assignee, and allowed for .counsel fee in the matter óf the assignment) be paid the further sum of $10,000.</p> <p>Held, first, that as to the items in the claim for the petitioning creditor (whose debt is less than $150) to an allowance of four hundred dollars, there is no law or principle of justice accepted or,acted upon by the' courts which justify any such award to him out of these trust funds.</p> <p>It does not appear that, in regard to the .claim of the petitioning creditor, , there was any dispute before the referee in respect to it which required a trial before him, and the proceeding he instituted was superseded by the intervention of the assignee under claim of right to a final accounting, and with it the claim of this creditor, so far as appears, was recognized without question of contest.</p> <p>The proceeding he instituted is styled “special,” and no costs or rate of counsel fee is provided by law otherwise 'than on an allowance of such taxable costs or allowances as are prescribed by the Code (sec. 309). They can only be awarded to a successful party, and in such case it is the duty of the court to determine which party shall pay the same, and in the absence of any other provisions of law, the rate fixed by the Code in analogous cases should govern.</p> <p>Meld, second, that as to the claim of the special assignee or trustee to the allowance of $6,000, instead of his legal commissions, it must also be denied. There is no provision or principle of law that permits any increase of the allowance to such trustee beyond the statutory compensation made to executors and administrators. •</p> <p>Meld, third, that as to the claim of the general assignee to $40,000, instead of his legal commissions, the same rule applies, and he should be allowed the same commissions which are by statute allowable to executors and administrators, and his allowances should be restrictéd to those rates. Although the law exacts" the most conscientious discharge of his duty, nothing can be allowed beyond such statutory allowance under claim for excess of zeal, or assumption of more onerous duties than might have been exacted.</p> <p>Meld, fourth, that as to the claim of the attorneys and, counsel of the assignee to an allowance of $10,000.for the conduct of the proceedings upon the accounting, in addition to the sum of $1,000 allowed and paid them as a fee in the course of the administration of the assigned estate, the case is not so intricate as to warrant its payment.</p> <p>The simple employment of such officers of the law to aid an assignee having $1,000,000 to administer does not necessarily, or by any just deduction from the magnitude of the sums, entitle them to any increased compensation for their services beyond what might be allowed to a like employment of a clerk or other assistant, or to any such engagement where the fund was small in amount.</p> <p>The services rendered-by attorneys and counsel in such cases are to be remunerated according to a fair and reasonable estimate, as in any other ordinary cases of employment; and the amount can have no just dependence for its estimate of value upon the extent or character of the fund to be administered.</p> <p>The character and quality of professional skill that the necessity of the case requires to be employed, and its general values, are to be considered by the court in passing upon an allowance asked for.</p> <p>In cases where the aid of counsel are-both proper and necessary, the claim on the part of the trustee to an allowance is not one addressed to the mere discretion or arbitrary will of the court, but must be predicated upon competent, evidence for its action.</p> <p>In the settlement of the accounts of a trustee, no allowance (beyond probably that for some clerkly duty) can be made for the preparation, proper keeping and presentation of his accounts in a clear and explicit manner, and with all necessary proofs to sustain it. Such duty he, in law, engages as a part of his personal trust, and he cannot, in respect to it, exact any expense for employing counsel to instruct him in his own legal duty, unless some complications or unusual or unforeseen difficulties have arisen rendering such employment of counsel necessary and proper.</p>

<p>Application to restrain the - defendant from the nse of an alleged trade-mark.</p>

<p> Assignment executed under a power of attorney—acknowledgment by attorney in fact. </p> <p>A general assignment for the benefit of creditors, executed and acknowledged by a resident pa/rtn&r in person-for himself, and also executed in the name of a non-resident pan'tner through and by his attorney in fact, is a valid one, and is sufficiently executed (Brady, J., dissenting).</p> <p>This is especially so when the absent partner, before his departure for Europe, authorized his father, who was his partner in business, to make any disposition of the assets and property of the firm for the benefit of its creditors that he might deem proper. The assignment in such case is a valid one, both upon the ground that it was made by one partner with the consent of the other, and also that it was duly executed by the absent partner through and by his attorney in fact.</p> <p>The instrument having been executed and acknowledged in due form by the resident partner, with the assent and authority of the absent one, was a valid assignment of the partnership effects for the benefit of the creditors independently of the execution thereof by the other partner.</p> <p>An assignment having been executed by an absent partner by his attorney in fact, “acting under the power of attorney which had been duly executed and acknowledged by him, an acknowledgment made bytlie attorney in fact, is sufficient under the requirements of the statute (Laws of 1860, chap. 388).</p>

<p> Surety—when not liable for deficiency arising from, foreclosure of mortgage. </p> <p>Where the defendant McC., after making the mortgage in suit, conveyed the mortgaged premises to defendant W., she assuming the payment of the mortgage, and upon the maturity of the bond and mortgage, McC. having come into the position of surety, requested the plaintiff (the mortgagee) to proceed immediately to foreclose and collect the debt; the plaintiff neglected for a year to commence his suit, and the proof showed that'although the premises were of sufficient value to pay the mortgaged debt and costs of foreclosure at the time the request was made, they kav£ since so far depreciated as to make it altogether probable that there will be a deficiency after applying the proceeds of the sale:</p> <p>Held, that McC., occupying the position of surety, should not be made liable for any deficiency arising upon such foreclosure and sale</p>

This action is brought to recover the amount due upon a policy, of life insurance, known as an endowment policy, issued by the North American Life Insurance Company to one Nicholas Butterly, the husband of the present defendant. It was originally commenced against the insurance company, on or about the 30th day of October, 1875, by the service of a summons and complaint on said insurance company.

<p>Appeal from judgment on the report of a refereee.</p> <p>The plaintiffs, in their amended complaint, allege that, on the 1st of February, 1871, they rented to the defendants a portion of store No. 34 in Globe Hotel block, in the city of Syracuse, froip. that date until the 1st of May, 1872, at the rate of $1,000 per year, payable monthly, in advance. Defendants went into possession, but have refused to pay said rent; and there was due and unpaid the rent accruing on said lease for the months of November, December, 1871, and January and February, 1872, amounting to the sum of $333.33, with interest on the monthly installments from the time they became payable.</p> <p>The answer, as amended, sets up five defenses to the complaint, to wit: First. A general denial. Second. Payment. Third. That the lease under which the defendants held the premises had been assigned before suit, and before rent in question had accrued. Fourth. Premises untenable and possession surrendered. Fifth. A counter-claim.</p> <p>The cause was referred to a referee. On the trial, the plaintiff Stern was examined as a witness and testified that plaintiffs rented to J. J. Morse & Go. a part of the store occupied by plaintiffs, hereinbefore described. They (J. J. M. & Co.) went into possession in February, 1869, and occupied up to January 1, 1870, at which time defendants went into possession. The lease from plaintiffs to J. J. Morse & Co. was then put in evidence by the plaintiff. It is dated the 15th of October, 1870, and is for a term commencing on the 15th of October, 1870, and ending May 1, 1872, at the annual rent of $900, from said fifteenth of October until May 1, 1871, and at the .rate of $1,050 from last-mentioned date until the end of the term. By said lease, defendant had the privilege of using a part of the cellar under said store for the purpose of storing sewing machines, and for other purposes connected with the business.</p> <p>The plaintiffs, in and by said lease, undertook and agreed to heat and warm said store, including the half thereof leased to defendant, in a comfortable manner, suitable to its business.</p> <p>J. J. Morse & Co. were indebted to defendant for the price of sewing machines sold to them, and, being insolvent and unable to pay therefor, the defendant sent one Folts, as its agent, to Syracuse to obtain security for such indebtednéss, and to that end, to purchase the machines that J. J. Morse & Co. had on hand, .and take an assignment of their notes, etc., to be collected, and the proceeds applied on the debt due to defendant.</p> <p>Folts went to Syracuse and purchased the machines of J. J. Morse & Co., and took an assignment of the rest of their property as security for their debt due to defendant.</p> <p>Amongst other assets of J. J. Morse & Co. was the lease, from plaintiff to them, of the store in question, and they assigned it to defendant on the 1st of February, 1871. Folts applied to plaintiff Stern for his consent to such assignment, and he replied that he would consent, provided he got his pay promptly and they assumed the responsibilities of J. J. Morse & Co., which Folts agreed.to do, and thereupon Stern signed a consent to the assignment of the lease. This evidence, as to the parol agreement between plaintiffs and Folts, the defendant’s counsel moved to strike out as incompetent, and as merged in the writing. The motion-was denied, and the defendant’s counsel excepted.</p> <p>The defendant remained in possession from .the time of the foregoing arrangement until the 3d of October, 1871, paying rent. At the date last mentioned, the defendant caused to be served on plaintiffs a notice, in writing, that they quit and surrendered possession of said premises because said premises were untenable and unfit for occupancy, and not heated and warmed in a comfortable and suitable manner.</p> <p>On the part of the defense, evidence was given tending to prove that the roof of that part of the building occupied by defendant leaked when it rained, and injured some of the sewing machines, rendering it necessary on several occasions to remove some of them to other parts of the store, and to cause them to be repaired and put in order so that, they would</p> <p>operate. Evidence was also given tending to prove that the store was not properly heated, and that water came into the cellar where the machines were stored. The plaintiffs did not claim that the roof did not leak, nor but that defendant’s employes had to move, from time to time, machines, nor but they were to some extent injured by the water, nor that the store was not properly heated, but plaintiffs’ evidence tended to prove that the roof .did not leak as extensively as defendant’s witnesses testified to; and that the water in the cellar was caused by a break in the water pipe in an adjoining.store, and that there was, at all times, a sufficient supply of coal in the cellar with which defendant’s men might have made and maintained a fire sufficient to heat said store.</p> <p>Plaintiffs also gave evidence tending to prove that whenever they were notified that the roof leaked, they called on their landlord to repair it, and he did so on several occasions; at one time he put a new roof over the part occupied by defendant. On the 3d October, 1871, the defendants assigned the lease from plaintiffs to J. J. Morse & Co., and by them assigned to defendant, to one Andrew Ames, by the advice of counsel, in order to release themselves' from further liability to pay rent, disclaiming, in said assignment, any and all interest in said demised premises.</p> <p>The part of the store occupied by defendant remained unoccupied from the 3d October, 1871, when it left said store, until the 1st of March, 1872, when it was -leased to another tenant. The referee finds most of the facts above set forth, and, also, that the leaking of the roof, although it incommoded the defendant, was not sufficient .legal excuse for .abandoning the premises; and that the neglect to keep the store comfortably warm did not justify defendant in abandoning the premises, or relieve him from liability to pay the rent. His conclusions of law were, that the parol agreement, made at the time plaintiffs consented to the assignment of the lease, established a parol letting for the residue of the term specified in the written lease, and at the rent therein reserved ; and that, although void by the statute of frauds, yet defendant having entered and occupied, rendered' such letting valid for one year, and operated as a surrender, by operation of law, of the original lease, and defendant is liable for the rent for the whole term the plaintiffs were unable to relet.</p> <p>The referee ordered judgment in favor of the plaintiffs for the sum of $299.25. The defendant’s counsel excepted to the conclusions of law. Judgment was entered in conformity with the report of the damages and costs of the action. From that action the defendant appeals.</p>

<p>Answer — sufficiency of verification under new Code of Oivil Procedure.</p> <p>An answer containing two paragraphs, the first of which denies positively all the allegations contained in the first count of the complaint; and the second alleging that the defendant has no knowledge or information sufficient to form a belief as to the truth of the facts contained in the second count of the complaint, is a sufficient verification under section 526 of the Code of Oivil Procedure.</p> <p>The verification need not be in the exact words of -the statute, but a substantial compliance is sufficient.</p>

<p>Will—construction of—Oodicü disinheriting a child and revolting a devise as to him—its effect on the will—who takes his sha/re—residuary clause— effect offcodicil on same.</p> <p>The eighth clause of the testator’s will is as follows: “After the payment of my just debts and funeral charges I give and bequeath the rest and residue of my property, real and personal, of every kind and description, to my four children, Mary Wright Heartt, Charles S. Heartt, Jonas S. Heartt and Jane Lamberson, the wife of Edward Schell, to be equally divided between them, share and share alike.”</p> <p>The ninth clause declares: “ In the event of any of my children dying, or either of them, before a division of my estate, leaving issue, then the share or shares to which he, she or they respectively would be entitled to under and by virtue of this will shall go to his, her or their issue respectively.”</p> <p>By a codicil to the will the testator says: “Whereas I, Jonas C. Heartt of "the city of Troy, county of Rensselaer and state of New York, have made my last will and testament, in writing executed the 10th day of February, in the year 1870, in which I have, made certain devises and bequests to Charles S. Heartt; now, therefore, I do, by this writing, which I hereby declare to be a codicil to my said last will and testament, and to be taken as a part thereof, revoke and cancel the devises and bequests, and each and every of them embraced in my said will to the said Charles S. Heartt.”</p> <p>The will bears date February 10,1870, and the codicil thereto January 14, 1874. Charles S. died before the father, and on or about the 4th day of March, 1874, leaving one child the defendant Louise P. W. Livingston. The testator had at the time of making the will and codicil four children, to wit, Jonas S. (thé plaintiff) and Mary W. and Jane L. (two of the defendants) and Charles S., aforesaid; and at the time of his death the said three children and Mrs. Livingston, the daughter of his deceased son Charles, were his only descendants:</p> <p>Beld, that, reading the codicil as a part of the will and as an amendment thereof, which both the law and the language thereof declare must be done, all devises and bequests to Charles are to be eliminated therefrom, the plain effect of which is to devise the residue of the estate to the remaining children, Jonas S., Mary W. and Jane L.</p> <p>When a testator has four children to provide for and gives to them the entire estate, share and share alike, and then by a codicil disinherits the one and 'revokes the devise as to him, the remaining three take the whole; and when a testator having but four children, by the residuary clause of the will gives such residue to the four equally, and then by codicil revokes the devise to the one, the other three take tire whole. As amended by the codicil the will gives all to the three instead of the four.</p> <p>Although, as the will reads without the codicil, the proportion of each of the four named in the residuary clause would be one-quanfer, yet this result is not expressed in words, and the question is not what was the original intention of the testator, but what did he intend when he made the codicil? That intention is to be gathered from the words of the will as it will read after an amendment which" strikes out one name. So reading this will, as amended by the codicil, the devise is of all the residue to the three, as no words remain which limit the share of each one of the three to one-quarter of the whole.</p> <p>The ninth clause of the will makes no independent devise to Mrs. Livingston or any of the grandchildren. If the child would, if living, have taken nothing under the will, then the issue can take nothing. By the will, as amended by the codicil, Charles S. would have taken nothing; and as he could not, Mrs. Livingston cannot.</p> <p>In addition to the provision made for Mary W. by the residuary clause in the will, that'instrument, in its-fh'gt clause, declares: “ I give and bequeath to my daughter Mary W. the use and occupation of the lot and dwelling-house in which I now reside, No. 67 First street, together with all the vacant ground connected thereto, being sixty-six feet eight inches of front on First street and 130 feet deep, together with all the out-buildings on the same; also all my household furniture,' beds, bedding, silver plate, books, fixtures, as well as every other kind of personal property which may be on the premises of my residence at the time of my decease and belonging to me, except such articles as I may hereinafter dispose of.”</p> <p>The next clause sets apart securities enough to produce an income annually of $5,000 to be paid to the said Mary W. in monthly, quarterly or half-yearly payments, as she may elect, to keep up the establishment and pay taxes and insurance so long as she may occupy the premises given to her by the first clause. For how long a period of time she should have the use of the homestead the will did not provide, and the first clause in the will is the only devise to her of any specific real estate whatever.</p> <p>The codicil then provides: “I also hereby declare that the devise of real estate in my said will to my daughter Mary W. is a devise of the same to her for her natural life; and such devise to her for all real estate contained in my said will is to he construed and to have effect as a devise of the same to her for her natural life.”</p> <p>Held, that the devise of the homestead contained in the first clause of the will to Mary W. is limited, hy the codicil, to her life.</p> <p>Held, also, that as to Mary W. the residuary clause of the will is undisturbed by the codicil.</p>

This action was brought to compel the defendant, The Metropolitan Life Insurance Company, of the city of ¡New York, to restore the policy in question to its original force and effect, said company having canceled it on its books.

Motion to punish Magdalena Hahlin, executrix, ■ &c., of the last will and testament of Thomas Hahlin, deceased, for non-compliance with a decree of the surrogate, made on her accounting, August 17, 1877, directing her to pay certain moneys.

Action upon a note made by Alex. Van Gleeck to the order of, and indorsed by, defendants, dated August 12, 1872, for $1,900, payable seventy days after date. It was taken by the defendants and indorsed by them and delivered to the People’s Safe Deposit Company of the,State of Hew York, “ which was incorporated unde.r chapter 816, Laws of 1868, page 1839. The defendants received of said company $1,873.03, and have never repaid the money. The note was protested.

<p>Attorney’s fees—Beference — Long account.</p> <p>Plaintiff movgs for a reference of an issue joined upon his claim for services rendered as attorney and counsel for the defendants. His "claim, as presented byhis bill of particulars, is predicated upon almost daily charges, mainly for consultations with his client and in the services rendered in this employment, thus dividing and splitting up his claim into about 100 items, which is alleged to constitute a long account:</p> <p>Held, that such a system of exacting compensation for services as managing attorney in any particular transaction, unless expressing matter of agreement between the parties, would necessarily result in a great unfairness, as entirely a departure from airy just estimate of the value of an entire service in an entire though continuing employment. .</p> <p>Held, also, that it is not a proper case for a reference. The services rendered under such an employment, even if the subject of charges upon the “ quantum meruit ” for each instance of attention given to it, would, at most, partake of the character of a bill of goods sold and delivered under the same order, although consisting of numerous items at specific prices delivered at [the ‘"same or different times. The whole transaction would constitute but one item in a long account.</p>

<p>Pboceedings by habeas corpus to inquire into the cause of the detention of Gessner.</p>