Volume 57 — Howard's Practice Reports

Application by plaintiffs for an injunction restraining the defendants from using upon their signs and labels, as druggists, the words “ Established 1780.”

This action was brought to foreclose a mortgage made by the Atlantic and Great Western Railroad Company, a corporation created under the laws of the states of blew York, Ohio and Pennsylvania, the mortgage covering its property in the three states. Similar foreclosure suits were pending in these three states, and the courts in each of them appointed the same person receiver in the respective suits.

A fobmeb application was presented to this court by the United States Bolling Stock Company, for the same relief as is prayed for in this {See 55 Dow. Pr., 286). The present application is a renewal of the former, by leave of the court, and was opposed on the grounds stated above and noticed in the opinion.

The plaintiffs are trustees under a railroad mortgage executed by the Atlantic and Great Western Railroad Company, on their property in the three states of Hew York, Ohio and Pennsylvania. The object of the suit is to foreclose such mortgage. The defendant, the Banque Franco-Egyptienne, intervened for its own interest, claiming, by its answer, that out of the $56,000,000 of bonds issued under the mortgage but about $7,000,000, at most, had any valid or legal existence.

<p>Bight of way—Bight to repair, incident to the easement — Prescriptive use — Appeal.</p> <p>In an action for an assault and battery the defendant claimed that the plaintiff was using the right of way at the time of the assault in a manner not authorized by the grant, and that the right of repair of the private way in the manner made by the plaintiff at the time would be justified only by clear proof of prescriptive user, in that particular, founded on a grant:</p> <p>Held, that the right to repair is incident to the easement; and the way by the grant or prescription, confers a right to repair and keep the way in order. A person holding a right to the use of the way, being in possession, it is his privilege to make repairs so as to turn the water, by means of a ditch, and to fill it with stones taken from the roadside.</p> <p>In an action for an assault and battery where the recovery is less than $500, though the right of action involves a right to the use of a private way and the particular manner of its use and the repairs of the same and the question of prescriptive úse:</p> <p>Held, that no appeal lies to the court of appeals without an order of the supreme court, at general term, first obtained.</p>

<p>Bailment—Negligence of a banking corporation — when liable for the wrongful conversion by its president of the property of a depositor.</p> <p>Absence of all supervision and care on the part of bailees, with respect to the subject of the bailment, is, of itself, such'negligence as to render them liable for its loss through the wrongful acts of their agents.</p> <p>A banking corporation is under a duty to adopt rules and regulations and so to conduct its business as that the property intrusted to its safe-keeping shall he reasonably protected against misapplication by its servants and agents. An omission to adopt and enforce prudent rules in this regard is a failure' of duty towards its dealers and is blamable negligence..</p>

This action was brought to recover the amount of dividends declared, credited and paid by the Yorkville Savings Bank of the city of Yew York, of which plaintiff is receiver.

In December last, Messrs. H. B. Olaflin & Oo. made an application to judge Donohue for a warrant of attachment. against the property of Baere Brothers of Brooklyn.

<p>Perjwry— Official sworn reports—Power of state offie&rs to prescribe the form amd contents and mode of verification of corporate reports—Report of president of bank to superintendent of banking department— what should contain.</p> <p>The executive and administrative officers of the state have power to prescribe, pursuant to statute, the form, contents and mode of' verification of corporate reports, such as are annually required by law.</p> <p>Under the statute (Laws of 1843, chapter 218, section 3, as amended by chapter 419, Laws of 1847) the superintendent of the banking department may call upon a banking institution to state, in its report, in a general way, the largest loan made to “ anyone individual, firm or corporation,” and such information is necessary to show its “condition.” The act requires something more than a mere statement of the sum total of all its ‘ ‘ loans and discounts. ” Some thing which will show the “condition” of the hank in that respect, and the maximum of a loan to a single individual, firm or corporation, is within the plain requirements of the law.</p> <p>The superintendent of the hanking department has the right to require the report of the hank to show the “ aggregate of loans upon paper made, accepted or indorsed by directors individually or as members of firms. ” And this includes liabilities by the directors to the bank, whether matured or not.</p> <p>On a motion to quash an indictment, it is not necessary that the defendant should be present in court during the-argument. A preliminary objection that the presence of the defendant, during the argument, should be required, will not be sustained.</p>

Motion to dissolve temporary injunction and also to set aside report of referee and for a new hearing and also to confirm report of referee upon a question of fact arising upon the motion to continue said injunction.

This is an action for the foreclosure of a mortgage for $6,000, executed by one Buckley to the defendant Basford. After the execution of the mortgage Buckley conveyed the mortgaged premises do one Miller, who assumed the payment of the mortgage. Afterwards, Miller conveyed an undivided half of the mortgaged premises to the defendant, Mickelsburgh, who, by the deed, agreed to pay an equal half part of the mortgage, the same being deducted from the purchase-money.

<p> Jail limits—prisoner on the limits is in the custody of the sheriff—Action by sheriff against swreties on bond for jail limits, for escape—Defenses set up by sureties. </p> <p>A prisoner who has given a bond for the liberties of the jail is still in the keeping of the sheriff. The giving of a bail bond does not take the prisoner from the custody of the sheriff and place him in the keeping of his bail. The giving of the bond in effect simply enlarges the walls of the prison. A person is in prison, in legal contemplation, when within the liberties of the prison. An escape from the liberties is an escape from the prison.</p> <p>A sheriff is not responsible for an act which an individual, who happens to be his deputy, may do, unless in the act done the under officer represented the sheriff, the ordinary evidence of which, would be either the possession of process intrusted to him for prosecution, or a special authority to do the particular act.</p> <p>The right, however, of the deputy to represent his superior officer, and the consequent responsibility of the latter for the act of the former, may also exist and be evidenced, when the deputy has neither a process nor special authority, by an appointment which makes him the representative of the sheriff in a certain line of business to which the act complained of legitimately belongs; but to insure the liability of the sheriff, one at least of three grounds must be proved—possession of process, special authority or general power covering the particular thing done.</p> <p>When a party arrested upon an execution issued upon a judgment recovered in a civil action, gives a bond to the sheriff holding the process, for the liberties of the jail and leaves such limits by the permission of the deputy and jailor appointed by the sheriff, such permission of the deputy and jailor is an answer and defense to an action brought by the sheriff against the sureties upon such bond for an escape.</p>

This was an action for the infringement of a trade-mark of “ Sapolio,” in the dress, or manner of putting up the same for sale. It was referred to a referee, with power to hear and determine.

In April 1875, Waterbury, Smith & Oo., obtained an attachment in the marine court against the property of Henry L. Hewlett, a resident of New Jersey, but then engaged in business in New York city. In May, 1875, Hewlett filed a voluntary petition in bankruptcy, and Mr. Hall, the plaintiff, was elected assignee of his estate.

This is an appeal from a judgment of the general term, third department, affirming a judgment dismissing the complaint. This action is commenced on the equity side of the court for the purpose of bringing to a speedy determination, by one suit, a litigation, which will otherwise last many years, with great expense. It is conceded that thirty-one of the defendants have commenced separate actions against the board of supervisors.

<p> Complaint—Demurrer—Suit by one pa/rtner to recover amount of copartnership debt pawl by him—What complaint slwvM allege. </p> <p>The plaintiff sued his partner to recover two-thirds of the amount of a copartnership debt paid by him. The complaint did.not allege settlement of accounts, balance struck, dissolution nor a promise to pay: Held, bad on demurrer; that the law did not imply a promise from one partner to another as to their several accounts before dissolution, settlement or balance struck.</p>

Tee plaintiff’s intestate recovered judgment against one John C. Richards, in justices’ court, on which execution was issued and delivered to the defendant McNeil, a constable. The constable levied upon property of the defendant in execution sufficient to satisfy the same, but released his levy and returned the execution nulla bona. Thereupon the plaintiff brought this suit for a false return.

The action was originally commenced in the New York marine court, to recover $266.67 from the defendant, as surety for the rent of the upper floors of house 154, Sixth avenue, for July, August, September and October, 1870.

<p> Mortgage foreclosure—Composition in bankruptcy—Effect of secured creditor receiving Ms pro rata share under composition proceedings. </p> <p>A creditor of a bankrupt who had been discharged under composition proceedings in bankruptcy may, after the discharge, foreclose his mortgage. The discharge in bankruptcy does not discharge his mortgage lien.</p>

In this case an appeal was taken from two certain orders, made by Mr. justice Barrett, wherein he directed a stay upon giving proper security. The appellant filed an undertaking in the sum of $2,000 with one surety. The respondent excepted to the sufficiency of the undertaking on the ground that sections 1334 and 1351 of the Code of Civil Procedure require “ at least two sureties ” upon all undertakings given on appeal.

Ur January, 1878, the above defendants who were residents of Springfield, Mass., were indicted jointly with the Sheeler Brothers of Lyons, 27. Y., for a violation of the laws of the United States relating to trade-marks. The indictment was found in the United States district court held at Albany in January, Í878.

<p>Assumption of mortgage— Obligation cannot be oreated without a writing— ■Evidence,</p> <p>An obligation amounting to an assumption of a mortgage cannot be legally created without a writing.</p> <p>A verbal agreement to pay a mortgage, made by a third party, is void by the statute of frauds.</p> <p>The courts are careful in construing the language of written agreements to ascertain whether or not they amounted to an assumption of payment, or only that the land was conveyed subject to the incumbrance, and oral evidence will be excluded when there is an agreement in writing which limits the rights and obligations of the parties.</p>

<p>Bemoval of cause—District of QolwmMa not a state—Besident of that district not a 'citizen of a state — When cause cannot he tramsf erred from state court to federal court.</p> <p>The District of Columbia is not a state, and a resident of that district is not a citizen of a state, within the meaning of that term as applied to the jurisdiction of the federal courts.</p> <p>An action between a resident of the District of Columbia, and an alien and subject of the queen of Great Britain cannot be transferred from a state court into the federal courts. The reasons stated.</p> <p>When such a cause is transferred to the federal courts it will be remanded back to the state court.</p>

<p>Appeal—Undertaking — Judgment ama/rding plaintiffperpetual injunction— Bight of plaintiff to make application to punish defendant for contempt in violating injunction order, not stayed by the appeal—under what circumstances court will not exercise its power to punish— Code of Civil Procedv/re, sections 1310,1352, 1331.</p> <p>Where, by the judgment roll, it was held that the plaintiff should recover certain property described in the complaint, and the defendants were enjoined and restrained from any further use thereof, from which judgment an appeal was perfected by giving the undertaking required by the Code; pending the appeal a motion was made to punish the defendants for contempt in disobeying the injunction order, by operating their railroad over the premises in dispute:</p> <p>Held, on the authority of the Sixth, Avenue BaJ/road Company agt. Gilbert Elevated Baikoad Company (71 H. T., 430), that the acts done by defendants are in violation of the judgment of this court for which they can now be punished, notwithstanding the appeal.</p> <p>Held, fuA'ther, that although the court has the power to punish the defendants for contempt in violating the injunction order, under the circumstances of the case, such power should not be exercised pending the appeal.</p> <p>The case of Sixth Avenue Baikoad Company agt. Gilbert Elevated Baib'oad Company (71 H. T., 430) followed, but commented upon.</p>

<p>A hank may interplead parties making conflicting and adverse claims to moneys and property held hy it on deposit.</p> <p>A hank or other agent would not he justified in commencing an action of interpleader upon any and every claim made hy others to moneys deposited with it hy a dealer; hut whenever it is a matter of doubt to which of the defendants the fund, in the complainant’s hands, actually belongs, só that he cannot safely pay to either, a hill of interpleader may he filed.</p> <p>Where, hy operation of law through a change of public officers, the title to moneys held hy them, as such, is substantially changed, the person with whom the funds are deposited, may, when there are contesting claims arising from such change, interplead the parties, so that the funds may reach the proper hands.</p>

<p>Municipal corporations—Negligence of officers, in what it consists — liability of corporation f 'or injuries.</p> <p>A municipal corporation (a village or city), which, by its charter, has full control over its streets and highways, is liable for an injury caused by a defect therein, whenever its officers have been remiss and negligent in the discharge of their duties.</p> <p>Where, by the charter of a city, the common council had “full power * * * to regulate and superintend the laying of all gas-pipes,” and, after the pipes had been placed in position, to restore and make the street or highway safe for use, the common council, by a general ordinance, authorized any company to lay down gas-pipes, and instead of reserving its supervisory care over the work, simply declared it to be the duty of such company to put the streets again in good condition, and to maintain, during the progress of the work, proper guards and lights, under a certain penalty for a neglect so to do; in an action against the city to recover damages for an injury to plaintiff by falling into a ditch which had been cut by the gas company directly across the sidewalk, the proof showed that not only was permission given to the gas company to make excavations for the laying of its pipes by a general ordinance, but the particular work done was witnessed by one of the aldermen of the city:</p> <p>Held, that, under these circumstances, if the excavation was left in an unsafe condition, and the plaintiff, whilst traveling upon the sidewalk, and using due and ordinary care, was injured solely by reason of the unsafe condition thereof, the corporation is responsible to him for the injuries sustained thereby.</p> <p>The negligence of the officers of the corporation in this case does not consist in a failure to discover within a reasonable time what they ought to have observed, but in the conferring upon others general power to disturb streets, and knowledge of such work in progress, without the exercise by them of the supervisory control thereover, which the law gave them, and which they were bound to use for the safety of the public.</p> <p>Negligence of the city may be evidenced as well by non-user of power conferred in the supervision of the acts of others, as in the failure to remove obstructions, or to repair streets, when the need of either is known or ought to have been known.</p>

The executors have petitioned for a final settlement, and the question of the distribution of the estate has brought up the legal point of construction of the will. The provisions referred to are as follows: “ 1. I give and bequeath unto my beloved wife the income of one-third of my real estate, or the income of one-third of the proceeds thereof, during her natural life.

<p>Citizenship affected by manriage—foreign guardian—will made abroad— assets, how transmitted to foreign executor.</p> <p>By her marriage with a citizen of a foreign state, and her residence with her husband at his domicil in such foreign state, the wife, although previously a citizen of this state, becomes subject to the laws of such foreign state, and her right to dispose of her property by will, as well • as the rights of children born of her there, are"to be determined by the laws of the state where she was domiciled.</p> <p>Where the law of the state in which the testatrix was domiciled forbade her giving to her husband all the estate, to the exclusion of her infant son, to whom, as a necessary heir, descended, upon the death of his mother, one-half of her estate, real and personal:</p> <p>Held, That a gift by the testatrix to her husband of all her property was invalid, and that, under the will, he could take only one-half of the estate, and the remaining half went to the infant son, as heir, notwithstanding the will.</p> <p>Letters of guardianship, granted by the courts of a foreign state, do not operate to give the guardian a strict right to control assets of his ward situated within this state. In order to be fully recognized as the legal representative of an infant, a guardian must be appointed within this, state (MorreU agt. Dickey, 1 John. Ohy., 153 ; McLoskey agt. Beid, 4 Brad., 334, and other cases cited in opinion).</p> <p>Assets belonging to the estate of a testatrix, domiciled and dying abroad; should be remitted to the foreign executor for distribution, according, to the laws of the jurisdiction where the will was made and established (Parsons agt. Jjyman, 20 W. T., 103).</p>

<p> Supplementary proceedings—salary of a judicial or other public officer, while in the hands of the disbursing officer of the general or municipal government, ca/nnot be reached by. </p> <p>The salary of a judicial or other public officer, while in the hands of the disbursing officer of the general or municipal government in his official capacity, in common with other money to be applied by him towards the payment of judicial and other official salaries according to law, can neither be arrested, attached, seized nor taken under attachments, judgments, executions or supplementary proceedings founded thereon or taken in aid thereof.</p> <p>The ground of exception stated.</p>

<p>Motion for an order under section 294 of the Code, directing the comptroller to pay certain moneys in his hands, on account of certain judgments against the defendant.</p>

<p>Insurance, fii’e—Printed clause, when considered express contract as to conditions —Waiver — statement in policy which, would not operate as waiver.</p> <p>The policy of insurance insured “J. L., on her household furniture, ”'&c., &c., as described in the policy, “loss, if any, payable'to A. S. and W. L., as their interest may appear.” The furniture, upon which the insurance was effected, was held by J. L., under an agreement for its purchase with the two other plaintiffs, A. S. and W. L., who retained the title until the purchase-price was fully paid, which price was to be paid in installments, she having, under certain restrictions, the right to possess and use the property. The policy contained, in the printed part thereof, this clause: “If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the said assured, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void: ”</p> <p>Held, that L., had but an equitable interest in the property, the legal title being in S. and L. By the terms of the policy her interest should have been so stated to render the insurance contract valid. The provision in the policy was a lawful one, and was binding. The interest of the assured was not truly stated in the policy; hence it was void by the expressed stipulation of the parties to it.</p> <p>It is a case of express contract between the assured and the insurer, declaring in what case the policy should be inoperative and void.</p> <p>That the agent had before procured insurances upon the property, does not prove knowledge in him of the true state of the title when this policy was issued.' Nor does the policy itself, wherein payees were appointed to receive the money in case of loss or damage, as their interest might appear, show knowledge in the agent or company of the true condition of J. L.’s title to the property. Such statement or provision in the policy would not of itself operate as a waiver of the conditions, or estop the company from insisting on its breach as a bar to the recovery therein {Beversing S. O. 55 How., 324).</p>

<p>Naturalization of alien females by ma/rriage — Immediate inheritamee of citizen representatives of deceased alien sister by passing living alien mother — Alienage of living ancestor, through whom a citizen claims, bars the inherit-a/nce — Injunction in ejectment.</p> <p>Proceedings by “office found" are abolished and ejectment is provided by the Code as the first remedy.</p> <p>At common law and in this state, except where the statute prohibits, an alien can take an estate in fee, by purchase, and hold it against all parties except the state. But he cannot take by inheritance nor transmit by descent.</p> <p>An alien female who comes to the United States a minor and who, before attaining full age, marries an alien, by the mere fact of marriage becomes, upon the subsequent admission of the husband to citizenship, at once a . citizen without any declaration on her part of her intention to become such, or a previous five years’ residence or the judgment of any court.</p> <p>Under section 22 of chapter 2 of part 2 of the Revised Statutes, notwithstanding the deceased mother, through whom the estate is claimed, was an alien, the inheritance, to one otherwise capable of taking, is not barred.</p> <p>Collateral descent from brother to the representatives of a deceased sister, the alien mother surviving, is immediate. Such alien mother cannot impede the descent; the pedigree is deduced from the brother last seized by passing by or leaving out the alien mother, she not being a medium hereditas.</p> <p>' Children of a surviving alien sister, though citizens, are barred, section 22 of chapter 2, pa/rt % of the JBevised Statutes, applying only to the case of deceased ancestors.</p> <p>'Qumre, as to the effect of the treaty of 1844, between the United States and the kingdom of Wurtemberg, relative to the rights of alien next of kin.</p> <p>Where there is danger that the rents and profits of real estate will be removed out of the jurisdiction of the court in derogation of the rights of the heir, the court will enjoin such removal.</p>

<p> Indictment—on motion to quash, affidavits ca/nnot be read to contradict </p> <p>Upon a motion to quash an indictment, affidavits cannot he read to contradict or explain the allegations in the indictment without the consent of the district attorney.</p> <p>Common law proof is required to sustain or avoid the allegations in an indictment, unless hy consent of the district attorney other proof is accepted.</p> <p>People agt. Bestenblatt (1 Abb. P. B., 368) commented upon and explained.</p>

<p> Bankruptcy—composition in—Creditor secured by mortgage—Ms right to percentage for deficiency—right notfoifeited by failing to surrender security, oi' to have it valued. </p> <p>A secured creditor is entitled to the percentage agreed upon in the composition proceedings, on the deficit unpaid on realizing such security. Such claim is not discharged hy the composition proceedings.</p> <p>A creditor, whose debt is secured by mortgage, is entitled to share in the percentage adopted in the composition proceedings, upon any deficiency arising upon tne sale.</p> <p>Where the debt, for which the creditor held security, was a partnership debt, and was included in the statement of assets and debts produced at the first meeting in composition, although such creditor did not appear or take part in such proceedings, the debt is, so far as it is an unsecured debt, clearly included by the statute, within those to which the composition extended.</p> <p>Unless the creditor surrendered his security, or had his security valued or the unsecured balance ascertained, he could not vote at the meeting; but, by failing to do this, he did not forfeit his right, as an unsecured creditor, to take his percentage under the composition so far as he was unsecured {See S. G, ante, 168).</p>

<p>Action on judgment recovered in circuit court of U. 8. — Transcript filed and judgment docketed in county clerk’s ofiice—Leave to sue must first be obtained—.Code of Civil Procedu/re, section 1271 — Code of Procedu/re, section 71,</p> <p>An action cannot be maintained on a judgment recovered in this state in a circuit court of the United States, where a transcript of the judgment has been filed and the judgment docketed in the county clerk’s office, without first obtaining leave to sue the same.</p>

<p>Slander or libel—in action for—what defendant may set forth in his answer and prove on the triad —Mitigation of damages — Coda of Civil Procedure, sections 535, 536.</p> <p>It seems,, that, in an action for slander or libel, the defendant may set forth in his answer, and prove on the trial, facts and circumstances tending to establish the truth of the defamatory words, by way of mitigation, with a view to disprove malice; but to be available to him, in mitigation, it .must be made to appear that he knew or had information of those facts and circumstances when he uttered the words, and that he spoke them under the belief in their truth.</p> <p>Evidence of general bad character may be given in evidence in mitigation . of damages in actions for slander; but not a general report that the plaintiff had been guilty of the offense imputed to him, unless accompanied with the further proof that such report had come to the knowledge of 'the defendant, before the speaking of the words, and that he uttered them in good faith, without malice, relying upon their truth.</p> <p>There has been no change in the law effected by the Code of Civil Procedure, sections 535, 536.</p>

Thomas McGuire, one of the defendants, moved to set aside the sale in this action, made under a judgment in foreclosure. The sale was made in October, 1878, and the motion was not made until May, 1879. The grounds of the motion were that the property was put up in one parcel, under terms of sale, by which it was to be bought subject to taxes and assessments. It was alleged that the property sold for an inadequate sum, and that the terms of sale had produced that result.

<p> Foreign corporation—bequests to, valid—devises of land to, in this state, invadid—Fquitdble conversion—Will. </p> <p>A foreign corporation if authorized hy its charter to take hy bequest, may take under a will made by a citizen of New York (Mamice agt. Momee, 43 F Pi, 387).</p> <p>The corporation being legally authorized to take the gifts, the question as to the validity of the directions and conditions imposed by the testator, as to holding, investing, accumulating and applying is for the consideration of the courts of the state where the corporation is domiciled (Chamberlain agt. Chamberlain, 43 F T., 424).</p> <p>A devise of real estate by a citizen of New York, of land situated in this state, to a foreign corporation, is invalid.</p> <p>If, by the terms of the will, the land had been equitably converted into money, and the gift was of the latter, the same would be valid.</p>

<p>Bemovdl of cause — Suit against three defendants as copartners, may he removed only as against the defendant who petitions.</p> <p>Where suit is commenced in a state court against three defendants as copartners, the plaintiff and one of the defendants being citizens, of the state, and the other two defendants being citizens of another state, the same may be removed to the United States circuit court on petition of one of the non-resident defendants, so far as it concerns him.</p> <p>Under the act of 1866 and subdivision 2 of section 639 of the United Srates Revised Statutes, the suit may be removed only as against the defendant who petitions to have it removed, only as against him.</p> <p>Subdivision 2, of said section 639, so far as it authorizes a defendant to remove a cause as to him, is not repealed by the act of 1875 (18 IT. 8. Statutes at Large, 470).</p> <p>To entitle the party to a removal, the suit must be one in which there can be a final determination of the controversy, so far as concerns Mm, without the presence of the other defendants as parties in the cause.</p>

This is an appeal from an order of Mr. justice Donohue, sitting at special term, denying a motion for additional security for costs, on the part of plaintiff, who was a non-resident, under chapter '305, Laws of 1875, section 4. At the commencement of the action defendant obtained an order requiring plaintiff to file security for costs, as a nonresident, and, pursuant to that order, the plaintiff filed such security in the sum of $250.

The action was brought upon the guarantee of a promissory note and indorsement. On the 18th April, 1874, H. A. Hober and E. H. Austin, in consideration of a horse sold and delivered to them by Spencer Eutherford, made and delivered to him their promissory note, dated on that day, whereby, sixteen months after date, they jointly and severally promised to pay to the order of Spencer Eutherford $150, at their house in Troupsburgh, for value received with use.

<p>Executing a, deed without reading it—mistake—framd and swrprise— Pleading.</p> <p>Where a complaint alleged that the plaintiff signed a deed without reading it, under a belief that its contents were different from what they really were, but it did not appear upon what facts the plaintiff’s belief was founded, and that they were of á character to justify trust and confidence, or that it was through trust and confidence reposed in any one, or in any representation made or influence exercised, that plaintiff omitted to read the deed, before signing the same:</p> <p>Held, that equity would not, for such mistaken belief, rescind the deed.</p> <p>Where there is a mutual mistake of facts, equity will give relief by reforming the deed, so that the true agreement of the parties may be carried out. A mistake by one party, and fraud in the other, in taking . advantage of the mistake, will also justify the court in granting relief.</p> <p>Unless confidence is reposed, a party, before signing a deed, is put upon inquiry, and must exercise proper care and reasonable diligence.</p> <p>The mistake, to correct the consequences of which a court of equity may be moved, arises through ignorance, surprise, imposition or misplaced confidence. These terms defined.</p> <p>See note at end of the case.</p>

<p>Reference—action to recover for overpayments on written contracts—when wiM he referred—Pleading—Oompla/int— allegations necessa/ry to present question of fraud—Answer.</p> <p>Goods sold and delivered, and work, labor and services performed, are matters of account, whether their value is fixed by an agreement, verbal or written, or is to be ascertained by proof; and a suit brought to recover either their original or their market value, when the allegation is that it is unpaid or one brought to recover payments in excess of such value is ordinarily and generally an action founded upon a contract and is referable.</p> <p>A complaint in an action brought to recover a certain amount of overpayments made by the state to the defendants for services done and performed and materials furnished under the written contracts, which fixed the price to be paid for suchlabor and materials, although it avers that the defendants have made a false statement or have presented a false certificate, or received more than was their due, fails to charge fraud in procuring the excessive payments, and must be deemed one ex contractu to recover excessive payments for work, labor and materials, which payments were made in the belief that false representations and false certificates were true, and as it confessedly invokes an examination of a long account, is a proper case for a reference.</p> <p>It seems, that if the complaint had averred that the defendants had knowingly made a false statement and knowingly presented a false certificate, and knowingly received more than was their due, the issue of fraud would have been presented, and the action would have been one for a tort or wrong, and, consequently, could not be referred.</p>

This case was tried before judge Donohue and a jury, and a verdict directed for the plaintiffs. The defendants ‘appealed from the judgment entered thereon to the general term. The facts fully appear in the opinion of the court.

<p> .Secemer—when application by judgment creditors to compel‘the payment over of moneys in his hands will not be granted,—hi3 liability for false </p> <p>Upon an application by the judgment creditors to compel the receiver to pay over the moneys in his hands, to the credit of their judgments, where it appears that the receiver, as such, has been made liable, through the conduct of his attorney, to an action, at the instance of the defendant, in an action brought in the receiver’s name, the court will not order the funds tobe paid over to the judgment creditors.</p>

<p>Appeal "from judgment entered upon an order of Mr. justice Robinson, dismissing the plaintiff’s complaint, at trial term, upon the ground: First. That the defendant’s offer was made to William Haw, Jr., and that no one else could enforce it; and, second, that the offer was void for the want of consideration.</p> <p>The following is a copy of the agreement sued on:</p> <p>“ New Yoek, Motfr. 3d, 1877.</p> <p>Wm. Haw, Jb., Esq.:</p> <p>My Deab Sir. — I will contribute the expense of boxes for Benj. Beyea, candidate for assembly, twenty-first district, not to exceed three dollars per district; on presentation of bill at my office, check will be paid.</p> <p>Yours, very truly.</p> <p>JAMES F. THOMSON.”</p>

<p>Arrest—a pa/i'ty cannot be twice arrested— The right to arrest, both under the Code a/nd under the Stilwell act— Code of Procedure, section 178— Code of Oiml Procedure, section 548.</p> <p>Where a party has been proceeded against and arrested and held to bail under the provisions of the Code, proceedings cannot be taken under the “ Stilwell act,” based substantially upon the same facts as those which were disclosed in the affidavits on which the orders of arrest were granted.</p> <p>Where a defendant has been discharged from imprisonment, under an order of arrest by due course of law, he should not be rearrested and imprisoned a second time for the same cause, though in a different form of action.</p>

<p>Action for the foreclosure of a mortgage.</p>

<p> Mechanic’s lien—when the estate will not he hound hy contracts of the trustee, executor or tenant in common for its improvement. </p> <p>A trustee having the control and management of the estate can make necessary repairs and incur other expenditures requisite for the protection .of the property; but he cannot, unless authorized in the instrument creating the trust, make large and expensive improvements.</p> <p>The mechanic’s lien law only subrogates the subcontractor, pro tanto to the rights of the contractor, under the contract, and he can, except in case of fraud, collusion or intent to evade the act, have no other or greater rights.</p> <p>Certain real and personal estate was conveyed to the defendant Herbert, in trust, to receive the rents, income and profits thereof and after paying the testator’s just debts and liabilities, to apply the remainder to the support and maintenance of the wife and children of the said testator during the life of his said wife. Herbert, as trustee, employed the plaintiff to erect a new and large building in the place of an old one belonging to the estate whose roof leaked and which otherwise needed repairs. The plaintiff, as contractor, and others, as subcontractors, filed mechanic’s liens against the trust estate for labor and materials furnished:</p> <p>Meld, that the work done by the plaintiff and others under the contracts with defendant was in the nature of large and expensive improvements and that the latter had no authority as executor to bind the estate with such contracts and the liens could not be sustained.</p>

<p>Application for a peremptory mandamus to compel the filing, in the office of the secretary of state, of articles of association incorporating the “ Kesler Mining Company.”</p>

<p>Indictment — an accessory before the fact must be indicted in the county where the offense was committed—who principal, and who accessory— Criminal law.</p> <p>H. and G. were both residents of New Jersey. H. suggested to G. a plan for making some money, to which G. assented, which culminated in the production, by H., of twenty forged and counterfeited Greene county bonds. These he directed G. to take up the Hudson river to the river towns and counties to negotiate, he, in New York city, furnishing G. with the money to pay expenses. G. takes the bonds to Poughkeepsie, where he attempts to negotiate the bonds through a broker, who goes with G. to Catskill, Greene county, where the bonds are pronounced counterfeit, and, on his return to Poughkeepsie, he is arrested on a warrant issued in Greene county, brought to Greene county, indicted and placed in jail. He discloses H.’s connection with the matter; his testimony is given before a grand jury, of Greene county, and this indictment is found against H.:</p> <p>Held, that H., if held at all, could only be held as an accessory, and could not, therefore, be indicted in Greene county.</p> <p>Where the agent is a guilty actor in the commission of the felony, he, the agent, is the principal offender, and the one by whom he was employed or instigated, if absent, but an accessory before the fact. Where the person employed is guilty, he is the principal, and the employer an accessory.</p> <p>An accessory before the fact cannot be indicted in Greene county, when his offense was committed in the state of New Jersey—possibly in the city of New York. An accessory can only be indicted and tried in the county where his offense was committed, although the principal offense was committed in another county.</p>

Action for the partition of lands, and for an adjudication, declaring void the last will and testament of the testator, through whom the plaintiff claims as heir at law. The plaintiff’s complaint further demanded, that, if the will should be established, certain bequests therein contained should be adjudged to be void.

<p>Administrator’s bond—breach of—what constitutes — Sui’ety— JMdence— Costs against executors omd administratoi's.</p> <p>James Moore, the testator of defendant, and another as sureties, with Jacob MundorfE as principal, made their joint and several bond upon condition “ that if the above bounden Jacob MundorfE shall faithfully execute the trust reposed in him as executor, &c., &c., of John MundorfE, deceased, and obey all orders of the surrogate touching the administration of the estate committed to him, then their obligation to be void,” &c. In 1870 James Moore, the surety, died and left a will, under which the defendant was appointed his executor. In 1876 an order was made by the surrogate that Jacob MundorfE, the administrator, forthwith pay to the plaintiff a certain sum, which he omitted to pay. In an action against the defendant as executor of James Moore, one of the sureties on the bond, at'the trial the original petition of plaintiff, citation, decree or order were produced from the surrogate’s office; the recitals in the order stating facts sufficient to show that the surrogate was proceeding within his jurisdiction, and it was proved that the administrator had “omitted” to perform the decree; that the surrogate’s certificate under the decree was duly docketed by the clerk of the county; that execution was duly issued and returned unsatisfied, and that the surrogate'had assigned the bond given by the administrator:</p> <p>Held, that this proof was sufficient to establish a breach of the condition that the administrator would obey all orders of the surrogate and a due assignment of the bond, and was enough to sustain the action, and required the judge to direct a verdict for plaintiff.</p> <p>Held, further, that the provision as to the approval of an administrator’s bond by the surrogate was not made for the benefit or protection of the administrator or sureties, but of creditors and distributees. If the latter do not require it, but waive their right or omit to object, the former cannot rest upon what is in the nature of an objection to their own acts.</p> <p>It is not necessary that a demand for the payment of the decree should have been made upon the administrator; for an omission by the administrator to perform the decree rendered the sureties liable by the act of 1830, chapter 330, section 23; and by section 65, chapter 460, Laws of 1857, the return of the execution unsatisfied gives the creditor a right of an assignment of the hond.</p> <p>The surety’s liability on the bond extended to defaults after his death. It was not revocable at his will; the intent of the contract covered defaults after death, not only because of the nature of the subject-matter, but because also it expressly bound his executors and administrators.</p> <p>Meld, also, that under the decision in Keyser agt. Kelly (43 K. T. Sup. Ot. Sep. [J. <6 &], 33) no costs whatever can be allowed, as the claim was not presented to the executor pursuant to section 41, title 3, chapter 6 of the Revised Statutes {Per Ereedhak, J.).</p>

This is an action to foreclose a mortgage. Personal judgment for deficiency is claimed against Frank E. Wells, the grantee of the mortgaged premises. The conveyance to him contained a promise that he should pay and satisfy the mortgage. The grantor, George H. Wells, released him from this promise. The release was pleaded by the grantee, Frank E. Wells, in bar.

Action to compel the reassigment to the plaintiff of a policy of insurance on her husband’s life, which policy plaintiff had previously assigned to defendant as collateral security for a loan or loans of money to her said husband.

<p> Defense of another action pending for the sarnie ca/use. </p> <p>The-defense of another action pending for the same cause as that described in the second suit is not well pleaded, unless it appears, by the answer, that the first suit was pending when the second one was commenced.</p> <p>An action pending in another state is no bar to one commenced in this state.</p>

<p>Evidence — When party ma/y testify in his own behalf as to interview with a deceased person— Code of Oivil Procedure, section 829.</p> <p>Plaintiff sued defendant for an accounting as to proceeds of a farm which, had been leased under an oral agreement, in 1873, by plaintiff’s husband to the defendant. Plaintiff’s husband having died in 1874, leaving a will, by which he devised the farm and personalty thereon to plaintiff, whom he appointed his executrix, plaintiff made a new oral agreement with defendant, terms of which were not expressed, except by reference to the previous agreement between plaintiff’s testator and defendant. Plaintiff sues in her- individual capacity and not as-executrix :</p> <p>Held, that evidence by the defendant, personally, as to interviews between him and plaintiff’s testator at which the original agreement was made, is admissible.</p> <p>Evidence of the contract thus adopted is essential to show the contract actually made by the plaintiff, but it would neither prove nor disprove any claim which the plaintiff has derived from or through her deceased husband. No claim of that kind is involved in the action. The Code of Oivil Procedure has no application to such a case.</p>

<p>■Action to set aside conveyance—pa/rties thereto — Joinder of causes of action.</p> <p>In an action to set aside a conveyance of land fraudulently obtained, it is not improper to join a claim for the rents received by the grantee. And where such action is brought after the death of the grantee, intestate, it is not improper to join with the widow and heirs of the deceased the administrator as a party.</p> <p>Equity seeks to avoid a multiplicity of suits, and where the rights of all the parties may be well determined in one action, it is best that such action should be upheld where no positive rule of law, or settled practice is violated</p>

<p> Jurisdiction of the supreme court to review the action of the mayor of New York and the governor, in removing from office a police commissioner. </p> <p>The supreme court has jurisdiction to review the proceedings and action of both the mayor of the city of New York and the governor of the state of New York, in removing a person from the office of police commissioner of the city of New York.</p> <p>When the governor of a state refuses to act as the law directs, or when he acts contrary to law to another’s injury, or where he makes an error or mistake in the discharge of a judicial duty, which the statute might have authorized another to perform, in any of these cases the party aggrieved may seek the protection of the courts, who, in listening to the complaint and in redressing the grievance, if any exist, usurp no executive functions, but simply assert and exercise their own.</p> <p>The action which the governor of this state is called upon to take when the mayor transmits to him the certificate of removal (as required by the charter) is judicial in its character. He is called upon to judge and decide whether the reasons which the mayor gives for the removal are sufficient, and he is bound to take all information necessary to enable him to decide whether he ought to give or withhold his approval of an act of removal initiated by the mayor, under the law which defines their respective powers and obligations in such cases. The investigation of such questions and their determination is the exercise of judicial power, and his action may be reviewed by the courts.</p> <p>The power of removal of the heads of departments in the city of New York, is given by its charter {Laws of 1873, chap. 335, section 25), and is as follows: "The heads of all departments, including those retained as above, and all other persons whose appointment is in this section provided for, may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor, expressed i-n writing:”</p> <p>Held, that the power to remove a person from office, “for came,” as given in the charter, means that the “cause” of removal should be found in some act of omission or commission by the officer in regard to his duties or affecting his general character, which the law and a sound public opinion will pronounce to be sufficient to justify a forfeiture of the office, and not in the public bias or personal dislike of the city’s executive chief, nor in his leanings toward another individual for whom the place is desired:</p> <p>Held, further, that the provision contained in the charter of the city of New York {Laws of 1873, chap. 335, section 25), authorizing the mayor of the city, with the approval of the governor of the .state, to remove the head of a department “for came, and aft&r am, opportunity to' be hea/i'd,” necessarily involves a definite and specific statement of the charge, a reasonable time to answer it, the right to hear and examine the evidence by which it is attempted to be sustained, to produce testimony to show its falsity, and the aid and advice of counsel in the conduct of the examination.</p>

In 1873 the legislature passed an act, commonly called the charter of the city of Hew York, which provided, among other things, as follows : “ § 25.

<p>Oh August 19, 1879, summary proceedings were instituted before justice Parker against the relator for non-payment of rent on behalf of Edward Dodd.</p> <p>On return of the summons a motion was made before jus tice Parker, on behalf of the tenant, to dismiss, on the ground that the premises sought to be recovered were not located in the third judicial district, claiming that under the act of 1877 the jurisdiction of the district courts was limited to premises situated within their judicial district, and that said act was still in full force.</p> <p>Justice Parker denied the motion and ordered the trial of the case to proceed.</p> <p>Application was thereupon made to judge Sedgwick, of the superior court, and an order was granted directing justice Parker to show cause why a writ of prohibition should not issue against him, restraining him from further proceeding with the trial.</p>

September 26, 1879, judge Westbrook, holding supreme court, special term, at chambers, granted an order requiring the police commissioners of the city of Hew York to show cause before the general term, on September 29, 1879, why they “should not be compelled forthwith to appoint as inspectors of election in the city of Hew York, for the year 1879, persons named as qualified for such inspectors by the regular democratic republican organization, commonly known as the Tammany…

A motion was made at the Albany special term in June last, for a writ of certiorari, directed to the governor of the state and to the mayor of the city of New York, for the purpose of reviewing their proceedings in the attempt to remove Mr. Sidney P. Nichols from the office of police commissioner of said city.

September 19, 1879, on motion of the relator, the supreme court, extraordinary general term, granted an order that the respondents show cause, September 25, 1879, why a writ of prohibition should not be issued, prohibiting the special term at chambers for the county of Hew York, and judge West-brook, or any justice presiding thereat, from hearing and determining the questions arising' upon a writ of certiorari, issued upon the relation of Sidney P. Hiehols against Edward…

<p>Order appointing receiver of insolvent life insurance company —Order changing place of trial entered by stipulation of parties upon an ex pa/rte order— Practice— Oodeof Givil Procedure, section '¡77.</p> <p>Where, in an action to wind up and distribute the assets of a life insurance company through a receiver, upon the ground that the company was insolvent, in pursuance of chapter 903 of the Laws of 1869, an order to show cause was granted returnable at the Albany special term, and on the return day the attorney-general appeared and made the motion for a receiver, the application being based not only upon the verified complaint but also upon a resolution of the board of directors of the company asking for such appointment, and a report showing the exact condition of the company, which was that of clear insolvency and a gross mismanagement and abuse of their trust by the officers of the company. Counsel appeared for the insurance company and united with the attorney-general in the application. Counsel also appeared for the superintendent of insurance and stated that, in the opinion of the superintendent, the affairs of the company were in such a condition as to require action by the attorney-general, and both he and the superintendent of insurance concurred in the need of the appointment of a receiver, and that such appointment was necessary according to the terms of the statute. Counsel also appeared for sundry policyholders and objected to the appointment of any receiver whatever. After hearing the argument of the various counsel the court announced its decision appointing a receiver, and a decree or order to that effect was filed and entered. On the stipulation of the attorney-general and the counsel for the defendant an ex parte order was obtained from judge Learned, of the third department, and entered in the Albany county clerk’s office changing the place of trial from the city and county of Albany to the city and county of New York. On motion to set aside the order changing place of trial:</p> <p>Held, first, that the superintendent of insurance has such an interest that he may make this motion.</p> <p>Second. The court has power to act, of its own motion, to protect itself; and though the superintendent is no party to the record, either he or any person may call the attention of the court to an act done which requires its attention; and in this matter the court hears the superintendent, not only because he has the right to be heard, but as a person malting a suggestion to the court for its own protection, upon which, for its own dignity, it acts.</p> <p>Third. The stipulation to change the place of trial, and the order changing the place of trial obtained ex parte and entered in Albany, was a part of afscheme and plan entered into between the attorneys to nullify and undo the action of the court in the selection of a receiver. Such practice cannot be tolerated, even if no statute forbade it. The right to name the receiver belongs to the court.</p> <p>Fowth. When the court has appointed a receiver for an insolvent corporation or firm, such appointment is beyond the control of the parties to the action. They cannot stipulate away the order appointing the receiver, and the court having accepted the trust for the benefit of creditors must act.</p> <p>Fifth. There is no such thing as a receiver, pendente lite, for a life insurance company. The proceeding must be under the statute; and in this case no receiver, pendente lite, was asked for, but one under and in pursuance of chapter 902 of the Laws of 1869, under which act the defendant was organized. The order appointing the receiver is a final order or judgment. It is the judgment declaring what must be done; and after the entry of such order the place of trial could not be changed.</p> <p>Sixth. The order changing the place of trial, entered by stipulation of the attorneys, was a step towards doing what section 777 of the Code of Civil Procedure expressly forbids. It was nothing more or less than an attempt by stipulation to withdraw from one judge an application for judgment already passed upon for the purpose of applying elsewhere. This section of the Code has expressed, in statute form, its condemnation of such practice.</p>

<p> Lien of purchaser at tax sale —Parties to action for the foreclosure of a mortgage. </p> <p>A purchaser at a tax sale, and to whom a lease is made of premises subject to a mortgage, secures thereby a lien, which entitles him to priority over the mortgage, for the consideration paid at the tax sale, with the interest allowed by law.</p> <p>Such person is a proper party to an action for the foreclosure of the mort- . gage, and the judgment should provide for the payment out of the proceeds of the sale, of his prior lien.</p>

During the pendency of the action the infant plaintiff became of full age, and, on motion, the guardian ad Utem was relieved, but his liability for costs was continued up to the date of the order relieving him.

This action was brought to recover damages under chapter 646, Laws of 1873, known as the civil damage act. It was tried before a jury, and verdict rendered for defendant. The plaintiff moves for a new trial, and predicates her motion upon the minutes of the court. The plaintiff concedes that the verdict upon the second count of the complaint cannot be disturbed, as there was a conflict of the evidence, and the case was upon that branch conclusively determined by the jury.

In 1865 the legislature authorized and directed the surrogate of Yew York to appoint a stenographer to the surrogate’s court of said county who should be a sworn officer of the court and should be paid a salary of $3,000 a year, in like manner as the salaries of clerics in said count one now paid by law from the fees of said court, paid into the treasury of the county of New York.

The plaintiff sued the defendants, Moran and Canavan, in the New York marine court upon an open account for goods sold and delivered. Moran made default, and Canavan defended upon the ground that his firm had dissolved, and that by the terms of the articles of dissolution, his partner, Moran, had agreed to pay all of the firm’s debts.

<p>Who may grant an ex pa/rte order in action pending in one of the city courts— Code of Oirnl Procedure, section 772.</p> <p>Under the Code of Civil Procedure, an ex pa/rte order in an action pending in one of the city courts is good if obtained from a judge of any of the superior city courts.</p>

Motion to continue a temporary injunction to restrain the city officials from executing a warrant issued to collect the balance of a tax inposed upon the company for its personal property for 1874.

The plaintiff was employed by defendants for a year, at a stipulated salary, payable monthly, and was discharged without cause at the end of six months’ service, to wit, on July 1, 1878, and was paid up to that time. On the 9th of July, 1878, he commenced the action to recover his salary for the balance of the year as damages for the breach of the contract, and recovered a verdict in the first district court for the amount claimed. The defendants thereupon appealed.