Volume 55 — New York Supreme Court Reports

<p>Evidence to contradict the testimony of a witness as to prior statements made by him —■ evidence which is relevant to the issue, cannot be given in rebuttal.</p> <p>Upon the trial of this action, brought by the plaintiffs to recover possession of some tobacco alleged to have been obtained by the defendants’ assignor, by false and fraudulent representations as to his solvency, one of the plaintiffs offered evidence tending to show the making of certain representations by the purchaser as to his solvency, to the seller of the goods, and to Dun’s Mercantile Agency, and the falsity of such representations, and the making, in December, 1885, of a general assignment to the defendants, and certain other facts. The purchaser, who was called iby the assignee, admitted the purchase, but denied the making of the representations attempted to be proved by the plaintiffs, and on his cross-examination denied having made, at a time named, any statement to certain gentlemen named from whom he had purchased goods. Thereafter the plaintiffs put on the stand the creditors, to whom it was claimed the purchaser had made the statements, and offered to prove that he had made statements to them, for the purpose of contradicting him.</p> <p>Held, that the court did hot err in rejecting the evidence upon the ground that it was not in rebuttal. (Daniels, J., dissenting.)</p> <p>That while the plaintiffs, in an action of this character, had the right to prove contemporaneous frauds for the purpose of showing the intent with which the purchaser made the representations to the seller of the goods in question, and the evidence offered would have heen entirely competent for that purpose had it heen offered as part of the plaintiffs’ original case, such evidence was not in ■rebuttal, nor did it tend to impeach the purchaser any more than, in any case, any evidence upon the main issue at variance with the evidence of a witness may he said to tend to impeach his testimony.</p>

<p>Partial eviction of a tenant — he may maintain an action to secu/re an apportionment of the rent — when a removal under a wa/rrant for the non-payment of rent does not constitute a defense to such an action — effect of the decision in the summary proceedings.</p> <p>Where a tenant has been deprived by his landlord, or by the owner of the property, or any other person acting under paramount title, of the use and enjoyment of a substantial portion of the leasehold estate, he is entitled to bring an action in equity to obtain an apportionment of the rent and to secure a determination declaring the extent of his liability for the continuance of his partial occupancy. Dyett v. Pendleton (8 Cow., 727) and Lansing v. Van Alstyne (2 Wend., 561) followed</p> <p>Prior to the commencement of this action summary proceedings had been instituted by the defendants to remove the plaintiff from the premises occupied by him, because of his default in the payment of the rent, in which proceedings a ' decision directing his removal was made, under which he was, after the com. mencement of the action, removed.</p> <p>Held, that these facts, which were set up by a supplemental answer as a defense to the action, did not prevent the tenant from obtaining an apportionment of the rent in this action.</p> <p>That all that was decided in the summary proceedings was that the tenant was in default in the payment of rent, but to what amount was not involved and.could not be conclusively there decided.</p>

<p>Appeal from a final and interlocutory judgment entered after a trial of this action at a Special Term of this court.</p>

<p>Power of the Supreme Court to permit a trustee to raise money by mortgage ■— chapter 26 <^1884 does not confer authority to encumber the estate of remaindermen — when prior encumbrancers or persons claiming adversely to the plaintiff cere bound by the judgment entered in an action of foreclosure — the rule is applicable where the judgment is entered upon their default — persons not in being, having only contingent interests,are bound by a judgment recovered against persons legally representing them.</p> <p>Upon an appeal from an order denying a motion to compel a purchaser at a sale had under a judgment of foreclosure to complete his purchase, it appeared that the mortgage was given hy the defendant Sophia Iffla, as trustee under the will of Martin Ficken, pursuant to an order made hy this court upon an application made hy her under the provisions of chapter 26 of 1884, authorizing and empowering her to raise the sum of $900 for the purpose of preserving and improving the property so mortgaged which constituted a part of the trust fund,and directing that she should execute and deliver a mortgage upon the land in that sum, to secure her bond.</p> <p>The testator devised his real estate to the defendant Sophia Iffla in trust to receive the rents, income and profits to her own use and support, and the support, education and maintenance of the children of the testator, and after the death of his wife he directed his real and personal estate to be divided equally among his children, but in case they should happen to depart this life without issue, before the death of his wife, then it was directed that his real and personal estate, after her decease, should be equally divided among all his brothers and sisters. At the time of the decease of the testator he left a son, his only child, surviving him, who is still living, the infant defendant, Winona Ficken, being his only child and the grandchild of the testator. The application for the order, was made upon notice to the son.</p> <p>Held, that this order transcended the power conferred upon the court by the act of 1884, as that act did not confer upon it authority to encumber, by way of mortgage, the interest and estate of persons entitled to the land in remainder, after the execution and termination of the trust, but only authorized and provided for the encumbering of the trust estate itself, when it should he necessary to raise money upon it for its improvement and preservation.</p> <p>That this construction of the act was fortified by the circumstance that notice was not required to he given to the persons entitled to estates in remainder, but only to the beneficiary or beneficiaries in the trust.</p> <p>The surviving son of the testator, as well as his daughter and his brothers and sisters, with their husbands and wives and descendants, were made parties ¡ to the action of foreclosure, for the avowed object of establishing the mort- | gage as a legal security against all of them, and obtaining a decree under it for the sale of the estate in remainder as well of the trust estate. A copy of the testator’s will accompanied and was made part of the complaint, which stated the facts and the interests and liens which the parties might have, in the event of the death of the son without leaving issue; alleged that each and all of such interests or liens were subsequent and inferior to the plaintiff’s mortgage, and prayed that the defendants, and all persons claiming under them, or any or either of them, subsequent to the commencement of the action, might be forever barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; none of the defendants appeared in the action, although they were served with the complaint as well as the summons. A judgment was entered decreeing that each and all of the defendants, and all persons claiming under them, or any or either of them, after the filing of the notice of pendency of action, be forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in the said mortgaged premises, and every part thereof, and that the surplus, if any, should be paid into court, and upon the happenings, contingency or contingencies, provided in and by said will, should pass to the devisee or devisees, or persons entitled thereto, according and pursuant to the provisions of the said will as to said real property and to the laws of the State of New York:</p> <p>Held, that the judgment was conclusively binding upon the defendants and their interests, either immediate or contingent, and that the purchaser acquired a good and valid title to the property.</p> <p>That while the general principle is that a prior encumbrancer, or one who claims adversely, is not a proper party in a foreclosure suit, or in actions of a kindred character, involving a question of priority as to liens or a claim to dower adverse to the interest of the plaintiff, none of them hold that where the claim is stated in the complaint, as was the fact in this case, that it may not be the subject of adjudication, and the judgment thereon be conclusive, where no objectionis taken, that it is not a proper subject of consideration.</p> <p>Jordan v. Van Epps (85 N. Y., 427) followed.</p> <p>This rule is equally as imperative and applicable, whether the judgment results from an issue framed at the instance of the parties affected, or upon their default and omission to appear in the action.</p> <p>Bathbone v. Hooney (58 N. Y., 463); White v. Merritt (3 Seld., 352); Emigrant Industrial Samings Bank v. Goldman (75 N. Y., 127) distinguished.</p> <p>That in no event could any unborn descendants, or children of either of the parties defendant, object or impeach the judgment, as persons not in being and having only remote or contingent interests in the subject of the litigation, are concluded by the recovery of a judgment against those persons legally representing them and made parties to the litigation.</p> <p>Mead v. Mitchell (17 N. Y„ 210) followed.</p>

John Gorry, being confined in the Wards Island Insane Asylum as an alleged lunatic, one Michael Butler, on August 30, 1887, claiming in his petition that Gorry was unlawfully confined, obtained a writ of habeas corpus directed to the respondent, returnable on September 1, 1887, before the Supreme Court of New. York. The relator on the return claimed that the papers under which Gorry was held were insufficient and illegal for the reasons that, 1.

<p> Will —when a legacy, given upon the death of a person entitled to receive the interest of a fund, will be held to vest at the time of the death of the testator. </p> <p>By the first clause of the third codicil of the 'will of Hugh Maxwell, the testator, after revoking a bequest of $25,000 to his sister Helen, contained in a codicil to his will, gave and bequeathed “the said twenty-five thousand dollars to my executors, the survivor or survivors of them, and his successors in trust, to take possession of the same, to invest and keep invested the same, and collect and receive the interest, income, assets and profits thereof, and to apply the same to the use of my said sister, Helen Bequa, during her life, and upon her death, or, should I survive her, upon my death, I give and bequeath the said twenty-five thousand dollars as follows: Ten thousand dollars thereof to Harriot Eads, daughter of my said sister, and fifteen thousand dollars thereof equally to and between my neices Isabella and Agnes Barker and Virginia Bass.”</p> <p>Agnes Barker survived the testator, but died during the lifetime of the sister. Held, that the legacy vested upon the death of the testator, and that her executors were entitled to receive it.</p> <p>That the words “to take possession of” have great significance in determining the question.</p> <p>Warner v. Durant (76 H. Y., 186); Maniee v. Manice (43 id., 369) followed; Shipman v. Rollins (98 JST. Y., 311) distinguished.</p>

Tbe charge contained in tbe indictment adróse out of transactions alleged to bave taken place in obtaining tbe consent of tbe common council of tbe city of New York to tbe construction and operating of a surface street railroad, between tbe Battery and Fifteenth street.* During tbe examination of proposed jurors tbe district attorney was permitted to put to them substantially tbe following question: “ Tbe prosecution propose to call as witnesses two persons who were members…

The action was brought for the price of goods alleged to have been delivered to the defendant by the plaintiff in the fall of' 1882, for which it is averred he agreed to .pay the prices mentioned in the complaint; and a balance was claimed amounting to the sum of $265.

<p>Appeal from an order of tbe Erie Special Term, denying the relator’s application for a peremptory mandamus requiring the respondent, as comptroller of the city of Buffalo, to approve a bond executed by the relator, with two sureties, and tendered to the city comptroller as a compliance on its part with the provisions of section 1 of chapter 642 of the Laws of 1886.</p>

a referee, directing tbe mode and manner of applying tbe moneys amounting to $9,600 derived on a sale of lands .in an action brought for tbe foreclosure of a mortgage. The mortgage in question was made and executed by tbe defendant Church and wife, to tbe plaintiff, on tbe 22d day of August, 1884. At that time the mortgagor Church was indebted to tbe plaintiff tbe Orleans County National Bank and tbe mortgage was executed to secure tbe payment of such indebtedness.

After tbe return of an execution unsatisfied, tbe plaintiff made an affidavit wbicb was in full compliance with tbe requirements of sections 2435 and 2458 of tbe Code, presented tbe same on tbe 10th day of December, 1887, to the said judge, who granted an order thereon requiring tbe judgment-debtor to appear before a referee on the fourteenth of tbe same month and submit to an examination. This order was duly and personally served on the defendant tbe same day.

Motion to dismiss an appeal taken by tbe defendants from an order of the Monroe Special Term, denying their motion that the plaintiff be required to make her complaint more definite and certain.

The action is brought upon a foreign judgment, alleged to have been rendered in the District Court of the county of Arapaho, in the State of Colorado, for the sum of $1,388.38, which court the plaintiffs allege to be a court of competent jurisdiction to render such a judgment. The answer contained a general denial of tbe cause of action set up in the complaint, verified by the president of the defendant, a corporation organized under the laws of this State.

The original defendant was 'William S. Benchley, executor of the last will and testament of Dan. Post, deceased. The action was for an accounting concerning the interest and income of a fund in the hands of the said executor, of which the plaintiff claimed to be entitled under the provisions of the will of her late husband tbe said Dan. Post.

In this action, wbicb was brought for an accounting, it appeared .that some time prior to January 10,1864, the plaintiff’s intestate bad .made deeds to tbe defendant of certain lands situate in tbe States of Ohio and Illinois, and tbe defendant bad loaned to him money; that on that day Theodore Gr. Mills was indebted to the defendant in the sum of $3,434.63, for which he gave his note, and they then entered into an agreement reciting such indebtedness.

This action was brought to procure the cancellation of a deed of land executed by one Houghtaling to the defendant in October, 1885, and recorded in the Steuben county clerk’s office in April, 1887.

The plaintiff, on October 5, 1886, made a contract with the defendant George H. King, by which he agreed to exchange his stock of goods, designated as the ninety-nine cent store, for King’s stock of drugs, etc., of all which inventories, with valuation, were to be made, and within, sixty days thereafter the difference in value was to be paid by the party chargeable by the inventories so made, but they should at once take possession, keep an account of sales, the amount of…

The action was commenced in a Justice’s Court to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The plaintiff there recovered $150. The defendant appealed to the County Court and demanded a new trial. And when the action was brought on to trial the plaintiff moved to amend the complaint by increasing the demand for judgment from $200 to $1,000, which was granted against the objection and exception of the defendant.

This is a review of the third trial of an action brought for the purpose of obtaining a reformation of an assignment of a life insurance policy absolute in terms, so as to represent the assignment as made as collateral security, with a view to the recovery of the amount of the proceeds of the policy, in excess of the sum to secure which the assignment was made.

The action was replevin, brought to recover the possession of a horse which the defendant had, by exchange of horses, obtained from one Weider, who had stolen a horse and traded it with the plaintiff for the horse in question. The owner of the stolen horse shortly after took it from the plaintiff; the latter then demanded of the defendant the horse which he had so traded with Weider, and on the failure of the defendant to deliver, it up brought this action.

Tbe issues were tried before a referee, and upon bis report judgment was entered dismissing tbe complaint on tbe merits, witb costs, from wbicb judgment tbé plaintiff appealed. Tbe defendant’s motion for security for costs was so far granted as to require tbe plaintiff to furnish security for tbe costs of tbe appeal.

Appeal by tbe defendants from a judgment, entered in Ontario county on tbe report of a referee. Tbe action was in tbe nature of a creditor’s bill, brought by tbe plaintiff’s intestate, to charge certain property with the payment of his judgment against tbe defendant John Johnson. The judgment was recovered March 4,1876, upon a promissory note of date, March 23, 1871, in an action commenced July, 1872.

<p>Corporation organized, under chapter 74 of 1877, as amended try chapter 69 of 1878, to aid and support its members —power of subordinate lodges to waive formalities in restoring members,' suspended because of a failure to pay assessments.</p> <p>The defendant, which was incorporated under the provisions of chapter 74 of 1877, as amended "by chapter 69 of 1878, to aid, assist and support members or their families in case of want, sickness or death, adopted regulations for subordinate lodges by which a member, who had been suspended because of a failure to pay his dues, might, within three months, make application in a writing signed by him, to be presented at a meeting of the lodge, accompanied by a sum equal to all- his dues and assessments, and be restored to membership by a majority vote of the members present at such meeting.</p> <p>Upon the trial of this action, brought by the wife of one Joseph J. Gaige to recover upon a certificate issued to him, it appeared that the said Gaige, and two other members, were, on August 15, 1885, suspended for not paying two assessments by a subordinate lodge, and that that fact was reported to the grand lodge; that, on September fifth, one of the suspended members paid his assessments and was restored by the subordinate lodge, without any written application, and on the same day the said lodge passed a resolution that the other two suspended mem bers be restored on payment of the dues and assessments charged against them On September twentieth Gaige caused the full amount of his dues and assessments to be paid to the financier of the lodge, who received the same, and on September twenty-fourth reported to the grand lodge this payment and the fact of Gaige’s death, which took place on September twenty-first, sending-to it the portion of the fund to which it was entitled, and referring to the suspension of the three members and the resolution.</p> <p>Held, that the written or preliminary application could be and was waived by the lodge, and that, in view of the circumstances presented by the evidence, the conclusion was that Gaige was, during his life, effectually restored to his relation as a member by the resolution and the payment made by him pursuant to it.</p>

The action was replevin for a quantity of wheat. The defense interposed by the defendants was that the wheat was taken under an agreement for the working by the defendant John Reynolds of certain farms owned by the plaintiff.

Appeal by tbe plaintiff from an order of the Erie Special Term denying a motion made by him to stay the defendant’s proceedings, under an order before then made for the examination of the plaintiff, until after the service by the defendant of a bill of particulars pursuant to an order requiring it to do so. The appeal from the order requiring the defendant to serve a bill of particulars, is reported in full in 38 Hun 11

The action is brought upon an alleged ante-nuptial agreement made between the plaintiff and the defendants’ testator, by which the latter agreed that she should, at his death, be paid $10,000, provided she should in all things and at all times, faithfully perform the duties of a wife, and take such care of him and his household as he should request, and as should be proper and reasonable.

<p>Collateral inheritance tax — legacies and estates mined at less than $500 are not mVject to it.</p> <p>The word “ estate,” as used in section 1 of chapter 483 of 1885, as amended by chapter 713 of 1887, exempting from the tax imposed by that section on gifts, legacies ana collateral inheritances, “an estate which may be valued at a less sum than five hundred dollars,” means the estate given to the devisee and legatee under the will, or the estate that descends to the heir-at-law or next of kin under the intestate laws of the State, and does not refer to or mean the estate of the deceased person.</p> <p>The Estate of Margaret McCready, Deceased (10 N. Y. State Rep., 696) and The Estate of John W. Smith (5 Dem., 90) followed; In the Matter of the Estate ’of Mary E. Miller (5 id., 132) overruled.</p>

<p>Habeas corpus — a prisoner in custody by virtue of a mandate, cannot be discharged unless notice be given to the district attorney — chapter 226 of 1863, conferring the power to remit the record to the to'ial court to pass a proper sentence, does not apply to Courts of Special Sessions.</p> <p>The respondent, who was convicted by a Court of Special Sessions of Steuben county of a violation of the excise law, and sentenced to pay a fine of $100 or be imprisoned in the county jail until the fine was paid, not exceeding 100 days, having refused to pay the fine, was committed. Upon the return to a writ of habeas corpus, issued by the county judge upon the respondent’s application, an order was made by the said judge, without notice to the district attorney of the county discharging the respondent.</p> <p>Held, that, under the provisions of section 2038 of the Code of Civil Procedure, the district attorney should have had notice of the proceeding, and the county judge had no right to discharge the prisoner without such notice.</p> <p>That, as the power of the Court of Special Sessions to fine or imprison the defendant was limited, by section '717 of the Code of Criminal Procedure, to a fine not exceeding fifty dollars or imprisonment for six months, the judgment was void whilst the conviction was proper.</p> <p>That, as chapter 226 of 1863, which confers upon the Supreme Court or any appellate court the power to remit the record of conviction to the trial court to pass proper sentence, does not include Courts of Special Sessions, no power existed to remit the record in this case to the Court of Special Sessions for further judgment; and that as further imprisonment would be illegal the order should be affirmed.</p>

<p>Evidence — complaints made by the person injured, after the day of the accident, as to suffering pain are not admissible.</p> <p>Upon the trial of this action, brought by the plaintiff to recover damages which she had sustained whilst a passenger upon one of the defendant’s cars, her husband was allowed, against the objection and exception of the defendant’s counsel, to testify as to complaints made by his wife, after the day of the accident, of being dizzy headed, of a great roaring in her head and of a pain in the back of her eyes.</p> <p>Held, that the evidence should not have been received.</p> <p>Boche v. The Brooklyn City and Weiotovm Bailroad Company (105 ÍT. Y., 294) followed.</p> <p>The rule now is that whilst evidence of declarations which are of an involuntary nature indicating pain or suffering, such as sudden or involuntary groans, screams or sighs resulting from a touch, movement or contract with a foreign substance are competent, the evidence of statements made long after the injury as to the effect of the injury, or as to the sufferings endured therefrom, is not competent.</p>

<p>An action by a husband to recover damages for the loss of his wife’s services, by reason of the defendant’s negligence, may be brought within six years ■ — ■ an action to recover for loss of comfort or society must be brought within three years.</p> <p>In this action, brought to recover damages which the plaintiff alleged he had sustained by reason of the loss of services, .society, etc., of his wife inconsequence of an injury received by her through the negligence of defendant’s servants whilst she was a passenger upon the defendant’s cars, the defendant set forth in his answer as a second defense that the cause of action set forth in the complaint did not accrue to the plaintiff within three years next preceding the commencement of the action.</p> <p>Held, that a demurrer, interposed to this defense by the plaintiff, should be sustained.</p> <p>That the answer, being to the entire cause of action alleged in the complaint, was too broad and consequently demurrable for the reason that, in so far as the action was brought to recover damages for the loss of the services of his wife, it was an action to recover damages for an injury to property which could be brought within six years.</p> <p>Ghroth v. Washburn (34 Hun, 509) followed.</p> <p>It seems, that had the defendant interposed the answer as a partial defense, or a defense to that part of the complaint which sought to recover a judgment upon the ground of loss of comfort or society, the answer would not have been demurrable. (Per Haight, J.; Barker, J., concurred.)</p> <p>Gregin v. The Brooklyn Gross-Town Bailroad Company (83 N. Y., 595) followed.</p>

<p>Approval of ordinances and resolutions by the mayor of a city— the power cannot be delegated — when a subsequent approval of a resolution validates a publication of a notice commenced prior to the approval, as against a party not actually prejudiced thereby — when a direction to publish a notice will be deemed directory only — the burden of establishing irregularities and actual prejudice rests upon the party attacking the assessment.</p> <p>Upon the trial of this action, brought to have a local assessment for paving Hamburg street, in the city of Buffalo, adjudged null and void, it was shown that a resolution was passed by the common council of the city ordering the street to be paved in accordance with plans and specifications on file in the engineer’s office, and, also, another resolution fixing the amount of the expenses to be assessed for the improvement and directing the assessors to make an assessment of that sum upon the real estate benefited by such improvement in proportion to the benefits resulting thereto. Thereafter the assessors made a complete roll and caused a notice to be published in the official paper of the city the length of time required by the charter, to the effect that the roll would remain in their office, open for inspection and revision, for ten days thereafter. At the time the roll was made and the publication of the notice commenced the resolutions had been approved by the mayor’s clerk, but not by the mayor himself, although they were thereafter, and during the time the notice was being advertised, presented to and approved by him.</p> <p>Evidence was given tending to show that the plaintiff had actual notice of the publication of the notice, and that the roll had been made and was on file in the assessor’s office; that the roll after its completion, and after the expiration of the time for inspection, was delivered to the clerk of the city, who also caused the notice required by the charter to be published to the effect that it was on file in his office, so that persons interested might file objections to its confirmation, if any existed.</p> <p>Held, that the charter made it the duty of the mayor to examine and pass upon the resolutions and ordinances adopted by the common council, and determina whether or not they should be approved, and that this duty could not be delegated to a clerk or a subordinate in his office.</p> <p>That, as the resolutions were subsequently approved by the mayor, the roll was, after that time, authorized, and the only irregularity shown to exist was that it was advertised a few days before it had been authorized.</p> <p>That, as the publication of the notice by the assessors was not jurisdictional, but directory merely, and as the plaintiff was not prejudiced in fact, no ground was presented for annulling the roll.</p> <p>That it was the duty of the plaintiff to have appeared before the clerk and filed his objection to the confirmation of the roll, as required by the notice published by the clerk, and that by neglecting to do so he had waived the irregularity.</p> <p>The People ex rel. Locke v. The Common Council of Rochester (5 Dans., 11-16); The Petition of Folsom (3 Thomp. & Cook, 55, 56); Matter of Mary &. Pinckney (33 Hun, 474; S. C., affirmed, 84 1ST. Y., 645) followed.</p> <p>That, in the absence of proof to the contrary, the regularity of the proceedings would be assumed, and if irregularities appeared they must actually prejudice the plaintiff and the burden was with him to establish that he had been prejudiced.</p>

<p>Assignee for the benefit of creditors — he will not be charged p&t'sonally with the costs of an action unless mismanagement or bad faith be shown — Code of Civil Procedure, sec. 3246 — it is the duty of the trial court to determine this question — its adjudication therein cannot be attached collaterally.</p> <p>In this action, which was brought against a railroad company to recover wages due to the plaintiff and twenty-nine other employees of the company, the defendant, who had notified the company that he claimed the wages of such twenty-nine employees, as the assignee for the benefit of the creditors of one Waud, was made a party to the action by an order of interpleader, the amount of the wages being paid into court by the company. The referee, before whom the action was tried, found that the plaintiff was the assignee of the claims and was entitled to the moneys paid into court; that Waud had loaned money to each of the employees, and had taken assignments of their claims, hut that such assignments were void because usurious interest had been exacted by Waud, and directed a judgment against the defendant, as assignee, for the costs of the action. An execution having been issued upon the judgment rendered in the action the defendant moved, under section 3246 of the Code of Civil Procedure, for an order charging the defendant personally with these costs.</p> <p>Held, that as it was not claimed that the defendant was a party to or knew of the usurious charges made by Waud, he was not chargeable with bad faith in defending the action or in asserting a claim to the fund.</p> <p>That the fact that the defendant, after the determination of the action, paid out to his attorney and the creditors of the assigned estate the balance remaining in his hands, as assignee, did not make him personally liable for the costs.</p> <p>That if he had improperly paid out any of the funds of the estate, he might be called to account therefor in another proceeding.</p> <p>Butler v. The Boston and Albany Bailroad Company (24 Hun, 99) criticised and not followed.</p> <p>That it was the duty of the referee to determine the question whether the executor was liable personally for the costs of the action; and that, as the judgment directed by him charged the defendant in his representative capacity alone, he impliedly determined that the defendant was not liable individually, and that a collateral attack upon such an adjudication was unauthorized.</p> <p>Hone, as Executor, etc., v. Be Peyster (106 N. Y., 645) followed; Slocum v. Ba/rry (38 N. Y., 46) distinguís'</p>

<p>Division, line — an acquiescence by the parties for more than twenty years is conclusive as to its location — to invalidate a deed for champerty the person in possession must claim under some specific advm'se title</p> <p>In 1833 Silas Purdy conveyed, two parcels of a farm, then owned by him, to his two daughters, Patience and Almira, intending to bound the parcel conveyed to Patience on the north, and the parcel conveyed to Almira on the south, by a common division line. By some error in the survey or description such north and south lines did not in fact coincide. Upon the trial of this action of ejectment, brought by the plaintiff, the grantee of Patience, against the defendant, who claimed under Almira, it was proved that by practical location and an acquiescense of nearly fifty years, before the defendant acquired his title, the north line of the strip in question had been established as the true division line between the two parcels of land, and that for nearly thirty years before the defendant acquired title a fence had been built by the owners substantially on the line so established, and that the two parcels were occupied by their respective owners up to that fence, on either side, until February, 1883, when the defendant took possession of the strip in question, claiming to be entitled to do so under a deed received in 1880, which bounded him on the south “ by the lands of Patience Smith,” who was then still the owner and in the actual occupation of the parcel on the south up to the line established in 1834.</p> <p>On April 7,1884, Patience conveyed'to the plaintiff, by a description which bounded him on the north by a line commencing on the east at a monument which marked the cast end of the division line, established in 1834, and ran “thence west along the north line of lands deeded by Silas Purdy and wife to Patience Smith,” the deed reciting that it was intended to convey the land deeded by Silas to Patience on a day stated, and “since that time occupied by her.”</p> <p>Held, that a decision made by the referee, before whom the action was tried, to the effect that the deed to the plaintiff was, so far as it purported to convey the strip of land in question, void for champerty, was erroneous.</p> <p>That the plaintiff acquired by the deed from Patience a perfect title up to the line established in 1834.</p> <p>That the defendant took no title to land south of that line, and that his acts in taking possession of any portion of it were acts of trespass, and his possession was without color of title.</p> <p>That the defendant’s title was not adverse to that of Patience, within the language of the statute of champerty, as it was, by the terms of his deed, limited by her title, the description in his deed stopping at the north line of her land.</p> <p>Under the statute of limitations the adverse holding need only be under a claim of title, but under the statute of champerty the possession must be under a title adverse to that of the grantor in the deed.</p>

<p>Service of an injunction — who is deemed a managing agent of a corporation within section 431 of the Code of Civil Procedure — the committing or continuance of acts, forbidden by an injunction, after the general officers of the company have notice of the order, is a contempt.</p> <p>Upon an appeal from an order adjudging the defendant corporation in contempt for the violation of an injunction pendente lite granted in this action, the proof showed that the work which constituted the alleged violation of the injunction was commenced on Saturday, August twenty-first, and continued on the following Monday. Among the various officers served, while these acts in question were in progress, was the division superintendent of that division of the defendant’s road which included the place of the alleged violation. All the servants . and agents of the company located within this division were subject to his orders, and all the servants of the company engaged in the promotion of the work in question were acting under his orders, the work being done under his personal supervision and direction.</p> <p>I-Ield, that he was a “managing agent” of the defendant within the meaning of section 431 of the Code of Civil Procedure, which prescribes the mode of service on corporations.</p> <p>That, even if the service was defective in this respect, the order should still be affirmed, as it was admitted that the general officers of the defendant’s company were fully advised, before noon of the twenty-first of August, of the issuance of the injunction and of what was commanded and forbidden thereby.</p>

<p>Assessment of property of a foreign corporation, furnishing natural gas to consumers in this State —property taxable as real estate, under chapter 293 of 1881, must be assessed as the real estate of an individual — the value of the privileges of laying its pipes in the streets, and of contracts made with another company, cannot be considered.</p> <p>In this proceeding, instituted to review an assessment made by the assessors oí the village of Olean upon the property of the relator, a foreign corporation doing business in the said village, it was shown that its property, within this State, consisted of mains, pipes and tanks for the reception and distribution of natural gas, laid or located beneath or upon the streets of the village under a grant from it, and that its business was the sale and distribution, to consumers of natural gas for fuel and light, the company itself producing no gas of its own, but receiving, under a contract with another company, its supply of gas from the pipe line of the latter company into its own mains at the village limits.</p> <p>From the return made by the assessors it appeared that the method adopted by the assessors, in arriving at the valuation in question, involved some estimate of the value of the relator’s franchise from the village; of its contract with the company furnishing the gas, and of its income and the profits of 'its business resulting from that contract; if not as parts of its property at least as elements of the value of that property. v;</p> <p>Held, that the assessment was erroneous.</p> <p>That the system of mains, tanks and service pipes, as well as a small lot on which the tanks stood, were required, by chapter 893 of 1881, to be assessed as real estate, “at its full and trufe value,” and that the value of the rights and privileges granted by the village to the company, and of the contract with the other company, could not be considered in determining that value.</p> <p>The referee appointed in these proceedings, before whom the hearing was had, acting pursuant to the provisions contained in chapter 37 of 1855, based his valuation upon the cost of furnishing and laying the gas mains and pipes, 'considered as an investment.</p> <p>Held, that it was error to apply the rule prescribed by that act to the valuation of real estate, as it applied only to personal property.</p>

<p>Indictment charging a female wsith voting at an election — what statement of facts is sufficient to establish the offense — section 1 of article 2 of the Constitution excludes all persons not embraced in it— the right to vote must be conferred by la/w to entitle any person to exercise it.</p> <p>An indictment charged thatat a general election, held in the town of Alfred, county of Allegany, on November 3, 1886, for the election of certain officers therein mentioned, the defendant, “then and there being a female and a person not duly qualified to vote at such election, under the laws of the State of New York, then and there knowingly, maliciously, willfully and unlawfully did offer to vote, and did vote, at said election so held, as aforesaid, for the officers to be elected, as aforesaid, she, the said Lucy Barber, then and there well knowing herself not to be a duly qualified votor at such election, and not to be duly qualified to vote thereat.”</p> <p>Held, that as the alleged crime was illegal voting, and the alleged disqualification was that the defendant was a female, the indictment contained a sufficient statement of the facts constituting the offense.</p> <p>The statute (1 R. S. [7th ed.], 400), pursuant to which the prosecution was instituted, provides that “any person not duly qualified to vote under the laws of this State, who shall knowingly vote, or offer to vote, at any general or special town or charter election in this State, shall be adjudged guilty of a misdemeanor.”</p> <p>It was contended that the defendant was not, within the meaning of the statute, “a person not duly qualified to vote under the laws of this State,” because the provision of the Constitution (§ 1 of art. 2), defining the qualification of voters, was not “law,” as that term is ordinarily applied, and, therefore, the statute cited has no application to the case presented by the indictment.</p> <p>Held, that this contention could not be sustained, as the provision of the Constitution referred to is the law of the State upon the subject, and must be so treated, as effectually as if it were engrafted into a statute.</p> <p>That the fact that section 1 of chapter 130 of 1842, prescribing the qualifications of electors, which contained the word “male,” was repealed by chapter 240 of 1847, and that, since then, there has been no statute on the subject embracing that term by way of limitation, has no significance on the question under consideration.</p> <p>That, if it should be assumed that disqualification was dependent upon a constitutional or statutory enactment to that effect, the provisions of section 1 of article 2 of the Constitution, declaring that every male citizen shall, in the cases therein mentioned, be entitled to vote, would have the effect to exclude from the exercise of such right all persons not embraced within it.</p> <p>That the elective suffrage is not a natural right of the citizen, but a franchise dependent upon law by which it must be conferred to permit its exercise. That the only questions of fact for the jury were whether the defendant was a female and voted at the general election, as charged in the indictment.</p> <p>That it waj not necessary for the people to show that the accused was disqualified to vote, either by statute or at common law, but only that she was not included in the terms of qualification prescribed by the laws of this State. (Per Dwight, J.)</p>

Appeal by tbe defendant from a judgment, entered upon the trial of this action at a Special Term, held in Chenango county, in favor of the plaintiff and against the defendant, Augustus Burlingame, awarding to plaintiff the money in dispute, $1,290,17, paid to the county treasurer under and pursuant to the stipulation herein, to take the place of the mortgage in question, and also judgment for the sum of $381.15, an amount collected by Burlin-, game on such mortgage more than…

Brown, tbe respondent, as legatee, requiring tbe executor to render an account and pay ber legacy.

02 damages, and from an order denying a motion for a new trial made on the minutes of the justice present at the trial. The case contained all the evidence.

<p>Appeal from an order made at tbe Onondaga Special Term denying the defendants’ motion to compel the plaintiffs to make and serve a bill of particulars of their cause of action.</p>

<p>Action against a common earner for am, injury to a trotting ma/re — the opinions of witnesses as to her value before and after the injury, an-e admissible — also topi-ove her speed, and her value if she possessed the speed proved.</p> <p>Upon the trial oí this action, brought against the defendant, a common carrier, to recover damages for an injury to a trotting mare, which occurred while it was being transported by the defendant from Rome to Mansvillc, the plaintiff was permitted, against the objection and exception of the defendant, to prove, by the opinion of witnesses, the value of the mare, both before and after the injury, and, also, to prove her speed, and her value assuming that she possessed the speed proved.</p> <p>Held, that the evidence was admissible.</p>

<p>¡Execution of process, regular on its face, by a ministerial officer — lie will not be held liable unless a perfect cause of action is established against him — right of an express company to maintain an action of replevin, for goods talcen from it under am attachment against the consignee.</p> <p>Upon the trial of this action, brought by the plaintiff, an express company, to replevy certain cigars which had been levied upon by the defendant, a constable, under an execution issued on a judgment recovered in a Justice’s Court against one Babcock, it appeared that on October 12, 1885, Babcock was the owner of a package of cigars lying in the office of the express company subject to a charge for carriage; that on that day the plaintiff, in the action in which the judgment was recovered, obtained a warrant of attachment against Babcock, upon the ground that he had departed from the county of his residence with intent to defraud his creditors; that, under this attachment, the defendant attached the cigars, paid the charges and took them into his possession, where they remained until the levy under the execution was made.</p> <p>Held, that as the attachment and execution were regular* on-their’face,“and the' defendant had acted in good faith in attempting to discharge his duty as a public officer, he should not be held liable for damages unless a perfect cause of action was established against him.</p> <p>That the plaintiff could not recover, upon the ground of having some interest or lien on the cigars, as its lien for charges had been paid, nor upon the theory that it was liable to Babco.ck, the consignee, because the cigars, having been taken under a legal process, valid on its face, the plaintiff was not_ liable to the true owner for the -failing to deliver them. • ■</p> <p>Bliven v. The Hudson River Railroad (36 N. Y., 403); Stiles v. Bams (1 Black [U. 8.], 101) followed.</p>

Appeal by tbe executors of tbe last will and testament of Mary Howe from a decree of the surrogate of Tompkins county, adjudging certain legacies to be subject to the collateral inheritance tax.

The complaint was in the usual form of a strict action at law upon a policy of fire insurance, and the demand for relief was for money only, with no general prayer. While several defenses were pleaded the only one pressed at the trial was a breach of a warranty in the policy, that the property insured should not be encumbered by mortgage or otherwise, without the written consent of the defendant!

<p> Expenditures made by an administrator and general gua/rdian in supporting .the children of an intestate on a farm belonging to them —when they will be allowed although no order was made directing the expenditures to be made. </p> <p>Where an administrator, who is also a general guardian of the children of an intestate, with the approval and consent- of the- other general guardians .of the children, in perfect good faith and with the honest and earnest purpose of promoting the welfare, comfort and best interest of their wards, and of their estate, determines to keep the family of children together upon the homestead farm of the intestate, and expends certain sums of money received by him, as administrator, in the payment of taxes on the farm, and for materials and labor employed in the care of, and in making repairs to the real estate and in the support and education of the children, and the expenditures so made are such that if permission had been asked of the court to make the same such "authority would have been given, the acts of the administrator and guardian in thus expending the money belonging to the estate of the intestate will be approved and his accounts will be allowed and passed by the court.</p> <p>The claim for the support and maintenance of the family of the testator should not be disallowed because a separate account was not kept of such expenditures made for each of the infant children, as such an account will be quite impossible where the children are all given a common home, and the necessaries for all are supplied from one common fund.</p>

<p>Reference of a disputed claim against the estate of a deceased person — R.S., pt. 2, chap. 6, tit. 3, sec. 37 — the referee has the same power-to permit amendments to he made in the claim as a referee appointed in an action.</p> <p>Upon a trial before a referee to whom a claim, made by the plaintiff for a balance alleged to be due to Mm for money lent, paid out and advanced to and for tlie defendant’s testator, bad been referred, pursuant to the provisions of the Revised Statutes, the plaintiff was permitted by the referee, against the objection and exception of the defendant, to withdraw one item of his claim, in which he charged the testator’s estate with $37,998 98 and credited it with $4,506.96.</p> <p>.Reid, that the referee had power to permit the plaintiff to withdraw this portion of his claim, and that he committed no error in allowing him to do so. (Follett, J., dissenting.</p> <p>That an argument based upon the theory that the powers conferred upon such a referee by the statute (R. S., pt. 2, chap. 6, tit. 3, § 37) are only such as were possessed by a referee in an action in 1828, when the statute was passed, could not be sustained, and that a proper construction of the statute leads to the conclusion that a referee appointed under it possesses the same powers, is entitled to the same compensation and is subject to the same control as though he had, at the time oí Ills appointment, been appointed a referee in an action instead of a referee under this statute. (Follett, J., dissenting.)</p> <p>That the referee did not err in allowing the plaintiff interest on his claim, as the rule is established in this State, that upon money advanced by one person for the use of another interest is recoverable from the time of the advance, in the absence of any express agreement upon the subject, unless it appears from the circumstances under which, and the purposes for which the advance is made, and the relations existing between the parties either that it was their intention that interest should not be paid or that it would be inequitable to exact it.</p>

The trial was had at the circuit before the court without a jury.

Controversy, from Broome county, submitted under section 1279 of the Code of Civil Procedure. Plaintiffs became assignees for the benefit of creditors in March, 1885. Prior thereto Martin C. Rockwell & Co. were private bankers at the village'of'Union. Tlie firm was composed of Martin O. Rockwell of Union and Melvin C. Rockwell of Bingbampton, and was carrying on-tlie business of banking. Between July, 1884, and February, 1885, TIP.

The action was brought to- recover damages sustained by reason of the death of the plaintiff’s intestate on the 19th day of September, 1883, which occurred by the derailment of cars east of Syracuse, upon the north bank of the West Shore Railroad, then in process of construction by the defendant.

Among the grounds assigned in the demurrer are the following: 1st. “ That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Pro-2d. “ That more than one crime is charged in the indictment, within the meaning of sections 278 and 279 of the Oode of Criminal Procedure.” 3d. “ That the facts stated do not constitute a crime.” The indictment was as follows: Indictment eor Keeping a Place where Animals are Fought. “…

The action was brought upon a certificate of life insurance, which 'provided, among other things, that “ if any assessment shall not be . paid within ten days after notice as provided in the by-laws for the 'payment thereof, at the office of this association, in the city of Cincinnati, O. (unless otherwise expressly agreed in writing), or to the agents when they produce such receipts so signed as aforesaid, then and in every such case this association shall not be liable for…

The verdict was for $13,500. One of the grounds named in the motion for a new trial was, that the damages found by the jury were excessive. A former appeal was before this General Term in January, 1887, from a judgment on a verdict of $15,000. In considering that appeal it had no occasion to consider the question now made as to the extent of the damages. (Goppvns v. BE. Y. O. & JET. B. B. B.. Go., 43 Hun, 26.)

Douglas, .as guardian, etc., assessed at the sum of $25,000 for personal property. The application to the County Court was made pursuant to the Laws of 1869 (chap. 855, § 5), as amended by the Laws of 1811, ■ chapter 695.

The court at General Term said: “ These three actions are brought against the Kings County Elevated Railroad Company to restrain the company from the construction of its road on the ground that no compensation has been made to the plaintiffs who are abutting •owners, and the road cannot be constructed until such owners have first been paid for their damages.

general verdict rendere4 at tbe Albany Circuit in favor of tbe plaintiffs for damages. Tbe complaint charged that tbe defendant created and maintained a nuisance by tbe erection of an ice-house and tbe storage of ice therein upon her lot, one side of tbe ice-house being within two inches of tbe brick dwelling-house and store of tbe plaintiffs; that tbe ice injured the walls of their bouse, rendered it tincomfortable and of less rental and market-value.

Appeal by tbe defendant from a judgment, entered in Rensselaer county upon tbe report of a referee, in favor of tbe plaintiffs against tbe defendant.

The action was brought to recover the sum of $8,820 paid by the plaintiff to the defendant, in settlement of wagers and bets lost by the plaintiff and won by the defendant, it being alleged that said bets and wagers were unlawful under the laws of the State of New York governing the subject of betting and gaming, and that, under the said laws, the defendant was liable to the plaintiff for the sums paid to the defendant on said bets.

This action was commenced to restrain and enjoin tbe collector of the town of Highland, tbe defendant, from tbe collection of the tax levied and assessed upon the plaintiff’s real estate in tbe town of Highland, and from selling tbe property levied upon by tbe collector, .and from reducing any other property of the plaintiff into his possession, and to declare the assessment null and void and for other relief.

<p>Dedication of land for a street — an intention to dedicate the land and an acceptance a/i'e necessary.</p> <p>In this proceeding, instituted to acquire title to certain land lying in One Hundred and Sixtieth street, between Eleventh avenue and the Kings Bridge road, nominal damages only were awarded for the land taken, and no award was made for the buildings situated on the land, upon the ground that there had been a dedication of the land in the proposed street and that the buildings were erected thereon. The deed under which the respondent claimed title conveyed a piece of property commencing on the north-east corner of Tenth avenue and One Hundred and Sixtieth street; running thence northerly along Tenth avenue, to the southerly side of an old lane; thence easterly along the southerly side of the lane to the westerly side of the Kings Bridge road; thence southerly along the westerly side of the Kings Bridge road to the northerly side of One Hundred and Sixtieth street; thence westerly along the said northerly side of One Hundred and Sixtieth street to the place of beginning; and, also, all the right and title in and to One Hundred and Sixtieth street, sixty feet on the southerly boundary of said line intended to be conveyed hereby, and extending from Tenth avenue to the Kings Bridge road, as aforesaid.</p> <p>Upon this strip of land, referred to as One Hundred and Sixtieth street, which it was proposed to take in this proceeding, it appeared that there were houses of which the grantor had possession prior to the deed, and into possession of which the respondent went upon receipt of his deed, and in possession of which he has ever since remained, collecting the rents therefrom.</p> <p>Held, that in order that there should be a complete dedication, such dedication must be accepted by the public, and until such acceptance takes place an attempted dedication does not become complete and is revocable.</p> <p>That the fact that there were buildings upon the line of the proposed street, and that the respondent was in possession of the land and buildings, exercising the rights of ownership and never surrendering his control of the land in question, was inconsistent with any theory of such land having been dedicated for the purpose of a street, or with any intention that there should be such dedication thereof.</p> <p>That the evident intent expressed in the deed to convey every right which the grantor had to the grantee, and of the grantee to retain all that the grantor conveyed, showed that no dedication of such land was intended, and that the mere fact that the parties were uncertain as to what rights they might have in the land covered by the proposed street which had never been opened, and the land on which had never been condemned, did not justify a claim that such land had been dedicated for public purposes.</p>

Tbis action was brought to set aside a general assignment made by Isaac Sickle to the above-named Herman Cantor for the benefit of the creditors of said Isaac Sickle. The assignment was attacked upon the ground that the assignor, prior to the delivery of the assignment made fraudulent reservations and secretions of a part of his property for his own benefit.