Volume 59 — Howard's Practice Reports

<p>Trial by the court without a jury.</p>

<p> Trade-mm'k—when a word becomes property omd its use as a trade-mm’k will be protected. </p> <p>Where the case clearly shows that the plaintiffs and those through whom they claim were the first to use the word “royal ” as a portion of their trade-mark in connection with flavoring extracts, and have continued its use for a considerable number of years:</p> <p>Held, that, such appropriation of this word, although it is a common one, to distinguish an article produced by them, and although it is only applied to one grade of the article they manufacture, but by which distinctive appellation it has come to be known, dealt in, and used, gives to the plaintiffs the right to its exclusive use in respect to such production and such right will be protected.</p>

The relator was dispossessed from the premises ¡No. 7 Washington place, by Mr. justice McAdam, for the non-payment of certain installments of rent secured by a chattel mortgage. The justice decided the rule to be as stated in the head-note. The adjudication was brought into the supreme court for review upon certiorari. The respondent moved to quash the writ.

<p>Motion for a new trial on judge’s minutes.</p>

<p>Pleading—demurrer to complaint— action by general guardian on an administratrix s bond— Parties—Presumptions.</p> <p>An action may be maintained by a general guardian in Ms own name to recover a debt due to Ms ward.</p> <p>Where the decree of a surrogate directed an administratrix to pay to the plaintiff, as general guardian of their infants, a certain sum “ for each of said infants, as the distributive shares,” of.each of them:</p> <p>Held, upon demurrer to the complaint, in an action brought by the general guardian of one of the infants for her separate share, that the other infants were not necessary parties to the suit, and that a separate suit might be brought for each share.</p> <p>WThen a public officer performs a specific act in pursuance of a statute, it must be presumed to have been done for the purposes of the act, and in pleading it is sufficient to aver the performance of the act.</p> <p>Thus, where a bond given by an administratrix, was ordered by the surrogate to be assigned to the general guardian, under the statute, the presumption is, that it was directed to be assigned for the purpose of being prosecuted.</p>

Motion by plaintiff for alimony pending the action, and for a counsel fee to prosecute the same. The action was brought by Priscilla Allen against her husband, George W. Allen, for a divorce annulling the marriage contract upon the ground that he was physically incapable of entering into the marriage state. The complaint alleged the marriage of the parties at the city of Mew York, on the 15th day of May, 1879, and residence in this state.

<p>Action by wife to have marriage annulled for alleged impotency of husband.</p> <p>Application for alimony and counsel fee.</p>

On the 31st day of December, 1876, Henry A. Kerr, of the city of Hew York, died, leaving him surviving his widow, the plaintiff, Amelia Kerr, and his half-sister, the defendant, Almira E. Holahan, as his only heirs at law and next of kin.

<p>Appeal from order denying motion to vacate attachment in the first-entitled action.</p>

<p>Ondm'taMng on appeal to court of appeals—sufficiency of—What constitutes a housélwld&i' — Oode of Oiril Procedure, sections 812,1326.</p> <p>A surety, upon an undertaking given on an appeal to the court of appeals, pursuant to section 1326 of the Code of Civil Procedure, who is engaged in the milling business, and who rents and occupies a mill within the the state and owns the machinery therein, is to he deemed a “householder,” within the meaning of section 812 of the Code of Civil Procedure, and is sufficient for the purpose of the undertaking.</p>

Motion by defendant to stay the trial of this action pending an appeal in Doyle agt. Sharpe (74 iY. Y., 154), to the supreme court of the United States.

This action was brought for the specific performance of a contract between the parties above named, dated February 11, 1880, for the sale and exchange of certain real estate in the city of Flew York. The defendant agreed to sell and convey to the plaintiff the house and lot known as 413 West Fiftieth street in said city, for the sum of $16,000, subject to a mortgage of $6,000.

This was a motion to vacate an order of arrest, issued on affidavits alleging that plaintiff, in October, 1878, delivered a quantity of goods consisting of pistols, opera glasses, jewelry, musical and mathematical instruments, &c., to the defendant’s wife, to sell at her store on commission ; that she, about April, 1879, with her husband’s assistance, packed up and stored her goods, without plaintiff’s knowledge or consent, and refused to return them on demand.

<p> Agreement—to extend time for payment of a debt owing by plaintiff and to accept monthly payments—effect of. </p> <p>'Defendant being indebted to plaintiffs in the sum of $956,28, one A. con veyed to the plaintiffs a plot of ground “as collateral security for said indebtedness.” On the day of the conveyance the plaintiffs signed a written memorandum which recited: “ Whereas, George W. Fletcher, is indebted to us in the sum of $956.28, and is at present unable to pay the same; and, whereas, we have agreed to give Fletcher time to pay the same, not exceeding thirty-eight months from the date thereof, and that we will accept monthly payments of not less than twenty-five dollars a month to be paid on the first of each and every month until the whole amount be paid, with interest thereon from July 1; 1876; ” and, also, the giving of the deed by A. as collateral security for the indebtedness as before mentioned, and then obligated the plaintiffs to reconvey the property conveyed, when the debt due from Fletcher was “ paid in accordance to the terms of the above agreement: ”</p> <p>Held, that no part of the debt became due before the expiration of thirty- ' eight months.</p> <p>A promise on the one side to accept, and on the other to pay, a given sum in composition of a debt in installments, is a single agreement to pay a specified sum in installments, and upon a failure to make one payment the whole contract is broken by the debtor, and the creditor can again enforce the original debt.</p> <p>But where, as in this case, time is given for the whole debt, and there is no promise to pay in installments, but only a declaration by the plaintiffs that they will accept monthly payments if the defendant sees fit to make them, until the defendant fails to pay according to the terms of the agreement, the plaintiffs have no cause of action which they can enforce.</p>

<p> Demurrer to complaint. </p> <p>A subsequent separate cause of action cannot be upheld by allegations-contained in a preceding one unless they are connected therewith by proper averments.</p> <p>Victory Webb, <&e., Manufacturing Company agt. Beecher (55 Mow. P. B., 193) applied. ■</p> <p>Where a plaintiff, in her complaint, averred that she ‘‘is the only heir at law of the deceased,” and as such is entitled to certain property of the deceased, but it was not alleged that the deceased died intestate, or what issue, if any, he left him surviving, or how her claim as sole heir at law arose:</p> <p>Meld, on demurrer, that the averment was a conclusion of law and not the allegation of a fact, and that, for such reason, the complaint was defective in substance.</p>

<p>Joint debtors —proceedings against—Parties not summoned in action on joint contract may be summoned after judgment— Gode of Procedure, sections 375-379 — Time of service, twenty days.</p> <p>The proceeding provided for by section 375 of the Code of Procedure to bind a joint debtor not originally summoned is a special statutory proceeding, and a party defendant is entitled to twenty days’ notice, and this although the suit be in the marine court..</p>

<p>Action against a corporation for conspiring with others to injure the defendamt iy slanderous utterances— Complaint.</p> <p>Where, in an action against a corporation defendant sued with others, it is alleged in the complaint that the corporation combined and confederated with the other defendants to injure the plaintiff by circulating false and slanderous statements to his injury with the view of compel- . ling him to become a subscriber to the publications of the corporation defendants, in pursuance of which combination the slanderous words were uttered by the other defendants:</p> <p>Eeld, upon demurrer to the complaint, that a cause of action was alleged against the corporation.</p>

<p>Appeal from a judgment of the marine court, general term.</p>

<p> Foreclosure of mortgage—Parties—Judgment for deficiency. </p> <p>In an action to foreclose a mortgage, the bond accompanying the jnortgage being executed by a person other than the mortgagors as well as by the mortgagors, it is proper to make such obligor a party to the ’ action and to demand against- all the obligors a judgment for any deficiency.</p> <p>The objection that an action “inpersonam” at law is united with a claim “in rem” in equity is not well taken (2 B. 8., p. 191, sec. 154; Scofield, agt. Boscher, 72 N. T., 491).</p>

This action is brought by Charles A. Clegg against eleven defendants, six natural persons and five corporations.

William Babtels recovered a judgment of $119.90 against Thomas Ommingham, a city marshal, in the first judicial district, for an unlawful levy. Transcript of the judgment was filed in the county clerk’s office; an execution was issued to the' sheriff on the judgment out of the court of common pleas, and made returnable to the clerk of the court of common pleas.

<p>Appeal from judge Donohue’s order denying defendant’s motion in the divorce suit brought by plaintiff against defendant to vacate the order of arrest previously granted by him, under subdivision 4 of section 550 of the Code of Civil Procedure.</p>

<p> Discharge of imprisoned debtor—when it will be denied. </p> <p>Where, upon the examination of the petitioner, an imprisoned debtor, in the proceedings for his discharge from imprisonment, it appears that his proceedings have not been “just and fair ” towards a creditor under whose judgment he is imprisoned:</p> <p>Held, that the petition should be denied.</p> <p>Proceedings which are not "just and fair,” within the meaning of the statute, explained.</p>

Motion and reargument under an order staying proceedings pending appeal to general term. Plaintiff, in his amended complaint, alleges that his former wife, the defendant, received from him about the year 1863, property, both real and personal, to the amount of §118,648. That such property was conveyed to her in trust when plaintiff was unable to manage it by reason of excessive drinking.

Motion on behalf of plaintiffs to vacate a judgment docketed and entered in Albany county against the plaintiffs on the 28th day of April, 1880, in favor of the defendants for the sum of $95,380.45, the amount of the counter-claim set up in. the answer in the above-entitled action.

<p>Motion to continue injunction.</p>

<p>Tenants in common — Devisees take by statute as tenants in common unless it is expressly declared to be in joint tenancy—the right to an accounting between tenants in common and to charge whatever has been received from the property by o^a more than his moiety upon his share as a lien.</p> <p>Henry Huntington died in 1846 leaving a will wlierehy he gave to his daughter, Henrietta D. Wright, the use or income of a certain share of his real and personal property, to have and to hold for her life, and at her decease the said share was to go absolutely to her heirs. The said Henrietta D. Wright died in 1865 leaving two children, to wit, the plaintiff and the defendant Wright. By the will of their grandfather</p> <p>the executors and trustees were empowered to sell, convey and pay over and transfer to the different devisees their share or portion. These children took equally, share and share alike. In 1866 and 1868 the executors transferred real and personal property to the plaintiff and defendant Wright, jointly. B. N. Huntington was the acting trustee and executor. Some seven or eight years ago accounting proceedings were had and it was found that there was still coming to plaintiff and defendant Wright from their grandfather’s estate $190,000. The said executor, B. N. Huntington, made an assignment for the benefit of creditors in 1876, and a large portion of the property so assigned by him comprised the property of the grandfather’s estate. All of this property, both real and personal (with some exceptions of minor importance), was transferred by B. N. Huntington’s assignee to the plaintiff and defendant Wright, jointly, in part payment of what was still coming to them under the will. The defendant Wright, from time to time, received the proceeds from the joint sales of the property, which came to him and plaintiff as tenants in common from their grandfather’s estate, and from the bonds, mortgages and contracts, the plaintiff uniting in the deeds, and in some instances uniting with the defendant in satisfying mortgages that had been paid to the defendant Wright, but it was agreed between the parties that the defendant should account to the plaintiff on final settlement for all the moneys received by him from this property held by them as tenants in common, and that when they received what they could from the estate the plaintiff was to have her share on final settlement of the property which came to them from their grandfather’s estate. The defendant Wright has received from this joint property about the sum of $336,888, and has paid over to the plaintiff not to exceed $9,000. There is still remaining of this property, which stands in the name of plaintiff and defendant Wright, real estate of the value of about $95,000, and personal property contracts, &c., to the amount of about $10,000. On the 14th day of January, 1878, the defendant Wright made a general assignment for the benefit of creditors to the defendant Searles, who has qualified and is now acting as such assignee, and said assignee now claims to hold for the benefit of creditors one-half part of all the real and personal property now remaining in the name of plaintiff and his assignor the defendant Wright. In an action brought by plaintiff for an accounting and to have the property undisposed of set apart to the plaintiff, or that her half of what the defendant might have disposed of be declared a lien on the legal estate of Wright or his assignee in the balance:</p> <p>Held, first, that where tenants in common sell and convey property and one receives the entire purchase-money the other can maintain an action for money had and received to recover his proportion of the price. So</p> <p>he can. to recover his share of the rents received by the co tenant, but that will not bar his remedy for an equitable adjustment and lien. Second. That an action of account will lie in this case. That action is in its nature equitable, although given by statute; it was before and still is a matter of equitable cognizance. It involves the idea of agency, an implied trust, and whatever remedy is appropriate in such an action can be invoked hereby by the plaintiff.</p> <p>Tliwd. That the subject of the tenancy was the undivided share of the two in the estate of their grandfather, and the fact that it was handed over to them in different parcels or by different instruments does not change the subject of the tenancy. The whole is to be considered one subject.</p> <p>Fourth. That the plaintiff has an equitable lien on the share of her brother, the defendant Wright, in the balance as it now exists for her share of what her brother has received in excess of her.</p> <p>Fifth. The rights of the assignee of defendant Wright are no greater than the rights of the latter would be. The assignee takes subject to all equities of third persons.</p>

<p>Trademark — Injunction.</p> <p>The plaintiffs coined the compound word ‘‘Electro-Silicon'’ and applied it to a polishing powder prepared by them from an infusorial deposit. They put up the powder in appropriate packages and acquired a large sale therefor.</p> <p>The defendant, with a view to imitate their preparation, prepared a powder to be used for1 the same purpose and put it up in packages • similar to those of the plaintiff and designated it “Electric-Silicon” and have offered it for sale:</p> <p>Held, that they should be restrained.</p>

In this case the defendants were arrested, under the provisions of the Code, for fraud in contracting the debt for which suit was brought, and after judgment they were again arrested under the act to abolish imprisonment for debt, upon the same grounds. Judge Lawrence discharged them, for the reason that the latter arrest was unlawful, the defendants not being liable to be taken in custody twice for the same cause.

<p>Appeal from an order of the Erie special term exonerating the defendant as bail in an action brought by the plaintiff herein against one William T. Warren, and discontinuing the present action.</p> <p>The action against Warren was for the conversion of moneys collected by him in a fiduciary capacity. The plaintiff caused him to be arrested by the sheriff, who took from him bail, and they were excepted to and failed to justify. The plaintiff recovered judgment against Warren and issued an execution against his property, which being returned unsatisfied, she issued a body execution, which the sheriff, the defendant, Haberstro, returned “ not found.” That return was made on the 3d of April, 1879. The present action was commenced against Haberstro on the tenth of April. On the fifteenth of April, Haberstro again took Warren into custody and held him until the twenty-third of April, when he released him upon his giving an undertaking conditioned that he would at all times render himself amenable to the process of the court during the pendency of the action against him, and to such as might be issued to enforce the judgment therein. On the twenty-eighth of April, Haberstro, and the bail who had failed to justify, seized Warren and turned him over to the custody of one of the coroners of Erie county, and thereupon obtained an order, made by the special term of this court, exonerating them as bail, which order was reversed by the general term in October, 1879 (58 How., 264). On being surrendered to the coroner, Warren gave him an undertaking, and was permitted to go at large. On the twenty-seventh of October, Haberstro, not having answered, plaintiff entered judgment against him by default. On the fifteenth of November, Haberstro obtained a special term order giving him leave to answer, upon an affidavit in which he swore to merits and excused his default in not answering. He noticed the cause for trial at the February circuit, 1880. ■ It went upon the day calendar, and was placed as a preferred cause, and while it was in that position, he again arrested Warren, and on the twenty-fifth of February moved and obtained the order from which this appeal is taken.</p>

At the close of plaintiff’s case a motion was made on the part of defendants for a nonsuit substantially as follows: The plaintiff’s intestate, a machinist employed in the machine shop of the defendant at East Albany, was killed by the explosion of a boiler of a locomotive engine belonging to the defendant while engaged in assisting to set the “ pop-valve” of the same in the said shop on the 6th day of August, 1879.

This is an appeal from that part of an order made at a special term of this court held by Mr. justice Daniels, March 8, 1880, which strikes out paragraph 1 of the defendant’s answer as “ irrelevant and redundant.” “ Paragraph 1 ” of the defendant’s answer reads as follows: “ He denies, upon information and belief, each and every allegation contained in the complaint of the plaintiff Hugh Brotherton, excepting so far. as any or either of the allegations therein contained may…

<p>Action for the construction of the will of Charles It. Lehman, deceased.</p>

In this foreclosure suit judgment for deficiency was entered against Messrs. Koch & Jacob, attorneys, on November 9,1818, upon a covenant in the deed given them upon the purchase of the property, whereby they assumed payment of the mortgage. In the contract for the purchase they were simply to take the property subject to the mortgage.

<p> Commissioners to ascertain damages amd assess the same—When thecowi will notintei'fere with their findings and conclusions. </p> <p>The court should not, unless there be a palpable and manifest error committed, interfere with the findings and conclusions of a commission duly appointed by the court to ascertain the damages to the owners of property taken for the widening of a street or avenue, and to assess and apportion the same.</p> <p>The report considered and the objections commented upon and reasons given for the confirmation of the report.</p>

On the 30th day of June, 1874, David Dennis, together with his three brothers, were the owners in fee of a farm situate in Steuben county, described in the complaint, each being the owner of an undivided fourth part thereof.

<p>Demurrer to complaint.</p>

<p>Insolvent insurance company — Receiver — Power of the court to order payment to counsel employed, by the company out of funds in the hands of the receiver though they were unsuccessful in the litigation.</p> <p>The superintendent of the insurance department made a report in reference to The Atlantic Mutual Life Insurance Company, in pursuance of the laws of 1869, and on this report the attorney-general instituted the usual proceeding to wind up the company and place its effects in the hands of a receiver, and an order appointing a receiver was made. At the commencement of these proceedings the plaintiff, in behalf of the insurance company and upon and by virtue of an employment of its appropriate officers, undertook to and did defend the proceedings up to the time of the appointment of the receiver. With the decision appointing a receiver the company was not satisfied, it still insisted on its solvency and right to transact its own business; and although the defendant Newcomb, who was appointed receiver, at once filed his</p> <p>bond and took possession an appeal from the order was taken by the plaintiff acting as attorney of the company; and various other proceedings were had, in all of which the plaintiff appeared for and conducted the same for and on behalf of the company:</p> <p>Held, that an action is properly brought and may be maintained by the attorney against the company and the receiver for his services, disbursements and expenses, and the court has power to order payment to the plaintiff out of the funds in the hands of the receiver.</p> <p>Held, further (after reciting the history of the proceedings taken by the company and the further fact that all these proceedings were taken in good faith by the company and its counsel, and in the honest and conscientious belief of its solvency and ability to manage its affairs without the intervention of the court), that under such circumstances the managers and officers of the company not only had the right but it was their duty to do what they could to keep it in life; and the plaintiff having . been employed by the company the court ought to exercise such power- and order payment to the plaintiff out of the funds in the hands of the receiver.</p> <p>Held, also, that the objection urged by the defendant that this action by the company, these various proceedings that were had after the appointment of a receiver, must be regarded as a violation of and as prohibited by the order appointing the receiver and, therefore, contemptuous, is clearly untenable. The company are in no position to raise such a question. They having employed counsel and urged on these proceedings they "cannot now object to the counsel receiving any compensation for his labor, or reimbursement for his expenses, because they were violating the order of the court when they employed and directed it to be done.</p> <p>Nor is the plaintiff’s claim barred by any previous action taken by the court as to the allowance of costs. The appellate courts could make no provision except for taxable costs which, from the proof in this case, would afford no adequate compensation for the labor performed and the disbursements incurred.</p>

<p> Power of ref eree to emend pleadings. </p> <p>A referee has the same power to allow amendments to any pleading as the court, upon such trial, upon the same terms and with like effect, and the matter being properly at his disposal, his action will not be reviewed by a judge at chambers</p>

<p>Divorce—dttowa/nce to wife— Ohange of decree as to support of children.</p> <p>Where a decree of divorce has been obtained by a wife against her husband and an allowance of alimony has been made for her support and “for the support and maintenance” of her three children:</p> <p>Held, that the legislature intended that the allowance to the wife should be unchanged, but that the provision for the support of the children might be altered as their circumstances changed.</p>

This is an appeal from a judgment in favor of plaintiff entered upon the verdict of a jury. The plaintiff’s intestate, a driller in the employ of defendant, was run over and killed by the hacking of an engine and train upon a signal given by a yard-master named Luke. The principal defense was that the accident being caused by the negligence of a fellow-servant or employe the company was not responsible.

Application to punish Anna Maria Harris for contempt in disobeying an order, to her directed as a third party in supplementary proceedings. It appears hy the report of the referee that upon the return of the original order, to her directed, Mrs. Harris appeared with counsel and objected that no legal service of the order had been made upon her, as the signature of the judge who granted the order had not been shown or called to her attention at the time of service..

<p>Appeal by John W. Hesse, assignee, from an order vacating his order of discharge upon the application of John T. Camp, a creditor.</p>

The appeal was from an order at special’ term granting a writ of prohibition forbidding the marine court from taking further proceedings in an action between the relator and the respondent, Talcott, to recover the value of goods sold and delivered, and which Salke obtained by false and fraudulent representations. The plaintiff secured a judgment for $473.79, which the general term of the marine court reversed on appeal, and ordered a new trial.

Appeal in the action from an order denying plaintiff’s motion to .cancel the sheriff’s return upon an execution against the person of the defendant, and to remit said exe-' cution to said sheriff. Appeal in the special proceedings from an order made on habeas corpus discharging the defendant in the action from the custody of the sheriff.

<p>Pleading— Complaint—Answer—Effect of general denial of the allegations of the complaint, except as afterwa/rds admitted to he true.</p> <p>Where the answer denies having any knowledge or information sufficient to form a belief as to any or all the allegations in the complaint contained and, therefore, denies the same, except as hereinafter specifically admitted, the facts which were specifically admitted having been demurred to, on motion for judgment on this general denial:</p> <p>Meld, that the denial in the answer is good. The form of pleading is ■ one well known to the profession and has been sanctioned for years. McEm-oe agt. Decker, 58 Mow., 251, not followed; see AUis agt. Leona/rd, 46 N. Y, 688.</p>

<p>New York (city of) — TPrilamful obstruction of the streets — Duty of commissioner of public works and the superintendent of incumbrances—mandamus the proper remedy to compel fh&m to penform their duty.</p> <p>The common council of the city of New York have no power or right to authorize the placing or continuing of any obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same.</p> <p>The common council by resolution declared that licensed vendors should be permitted to occupy Forty-second street, west of Eighth avenue and within 325 feet of that avenue, Saturday nights from 6 to 12 o’clock:</p> <p>Reid, that to permit the street to be occupied and obstructed in this manner is clearly unlawful. It not only prevented its use and enjoyment for the ordinary purposes for which it is maintained, but also deprived the owners and residents upon it of the complete and beneficial use and enjoyment of their own property; and as to them the obstruction was substantially a nuisance, and a party suffering special injury from it has a right to appeal to the courts for redress.</p> <p>Reid, further, that where the superintendent of incumbrances and the commissioner of public works (who in terms are authorized to keep the streets clear of obstructions) have been applied to and requested to exercise their authority and remove these obstructions but have declined and refused so to do, a mandamus will issue requiring them to interpose and remove the same.</p> <p>Although, as a general rule, a mandamus will not issue where the party has another remedy, it is not universally true in relation to corporations and ministerial officers, for while they may he liable in an action for neglect of duty they may still he compelled by this writ to exercise their functions according to law.</p>

<p>Appearance—Answer— QorporaMon—Effects of a, general appear a/nce and answer of a defendant corporation — Negligence— Contributory negligence question for juay.</p> <p>The general appearance and answer of a defendant corporation ought to be deemed an admission of its corporate existence; and it ought not afterwards, when no special issue is presented, insist that plaintiff must produce and prove its character ; at all events, in such case it is enough to show user or corporate acts to make a prima facie case of the entity and identity of such corporation.</p> <p>The plaintiff, a canal boatman, in helping to discharge iron ore from a boat at Perth Amboy, pushed the iron tub which was being hoisted by a derrick as was customary and thus went partly under the tub, which fell upon him, causing the injury sued for:</p> <p>Held, that the question of contributory negligence of plaintiff’s act was properly submitted to the jury, such act not being per se evidence of negligence.</p> <p>Held, also, that some slight evidence having been given that defendant was the owner of the derrick and of the rope used, and the use of the derrick being much for the benefit of defendant and as the iron ore was being transferred by its consignees to defendant’s cars in the usual way, and as it should not be presumed that the consignees were trespassing in making use of the derrick, in the absence of all explanation on defendant’s part, the jury were justified in finding that the consignees</p> <p>were using the derrick in the usual way, with defendant’s knowledge and consent, and for its and their mutual benefit.</p> <p>Held, fv/rfher, that, defendant was, therefore, liable if the rope was unsafe and unfit for the work, and there being some evidence to go to the jury on these questions, the court properly submitted the questions to them, some force being properly given to the omission of defendant to give explanatory evidence.</p>

Motion to punish the respondent for contempt in not producing the body of James Smith pursuant to the command of a writ of habeas corpus.

This is an action brought by the plaintiff as receiver of the Bond Street Savings Bank, a bank incorporated under the laws of ¡New York, against the surviving trustees of the bank, with whom is joined the legal personal representatives of John R. Willetts, deceased, who was, in his lifetime, a trustee with the other defendants.

<p>Savings banks—purchase of mortgages from a trustee of such bank condemned— Such transaction ultra vires.</p> <p>Where a savings bank in the city of New York purchases from a trustee of such bank bonds and mortgages owned by him, aggregating $33,000, made by one person upon unproductive property in the city of Brooklyn of uncertain value, not worth twice the value of the mortgages, such transaction is ultra vwes.</p>

<p>Samngs banks—DesponmbUity of trustees for the acts of its officers—Complaint— Demurrer.</p> <p>A transaction entered upon the books of a savings bank, although made by the bank officers, is presumed to have been done with the knowledge and assent of the trustees, who are responsible for the acts of the officers , whom they place and retain in position.</p>

<p>Action at common law—Form of process— ^Regularity of summons for the commencement of action — Amendment of process.</p> <p>A summons or notice to the defendant for the commencement of a suit is certainly process quite as much as a capias or a subpoena to appear and answer is process, and must be issued by the court under its seal.</p> <p>A summons signed by an attorney, but not under the seal of the court, is not such process as is intended by the statute.</p> <p>The power to amend the process given by sections 948 and 954 of the United States Revised Statutes is power to amend a want of form in process, but does not apply to a summons in this form. There must first be a process to be amended; and a summons issued in this manner is no process.</p>

<p>This is an appeal by defendant Kent, from an order made by Mr. justice Lawrence denying a motion to vacate his order directing the defendant Kent to appear and submit to an examination under section 873 of the Code of Civil Procedure. This action was brought to compel the defendants, Poole & Kent, to account to the plaintiffs for the profits on certain large purchases and sales of lard which the defendants, Kent & Poole, between the 1st day of August, 1879, and the 16th day of January, 1880, made for account of the plaintiffs and others as their brokers and agents, under and in pursuance of an agreement annexed to and forming part of defendants’ answer. In the course of these and other transactions, certain deposits of money and stocks were made with said Kent & Poole by plaintiffs. Since the 1st of October, 1879, plaintiffs have been importuning defendants to furnish an account of these purchases and sales, but the defendants, Kent & Company, have neglected and refused to render any account, except a general statement, in which they claim a balance due them of $11,000. But how, when and through what transactions that alleged indebtedness arose, the defendants refused to reveal. Plaintiffs are informed by all of the defendants (except Kent & Poole) that the profits upon the aforesaid purchases and sales amounted to over $200,000. In addition to those profits, Kent & Poole have obtained from plaintiffs, during the period covered by the transactions set forth in the complaint, $125,000 in cash, and more than $180,000 in shares of stock, for which they also refuse to account. The object of the examination is to ascertain on what days the several purchases or sales of lard, which the defendants say they made for plaintiffs’ account, were made. By whose authority they were made, and at what price they were made, to whom the lard was delivered; from whom it was bought; and whether" these several purchases dr sales were made on credit or for cash.</p>

<p>Appeal from order sustaining allowance of costs in an ex pa/rte order directing the defendant to file his answer within five days, or, in default, that it be deemed abandoned.</p>

<p>Constitutional law—Surrogates—Chapter 394, Laws of 1870, unconstitutional.</p> <p>Chapter 394 of the Laws of 1870, entitled “An act to confer additional powers upon surrogates and to authorize an examination as to the effects of deceased persons,” is unconstitutional, inasmuch as sections 5 and 6 thereof are clearly unconstitutional and the act indivisible.</p>

<p> Practice—Effect of special term ca/ption on expa/rte order. </p> <p>A special term, caption does not alter the real character of an ex parte order, or deprive an adverse party of the right to move on notice to vacate or modify it.</p> <p>An order appointing a trustee and directing payment to him of moneys under the provisions of a will, which the court has, by decree, declared to be inoperative, is void; and such trustee being an alien and non-resident,</p> <p>- the application for such order was an attempt to evade the provisions of the decree.</p>

Motion that the opinion of the late chief judge Curtis, filed June 7, 1880, may stand as the findings of fact and conclusions of law, and that judgment be entered thereon.

<p>Unauthorized obstructions on streets and sidewalks — Nuisance.</p> <p>Streets which include sidewalks are for the use of the public at large. Any obstruction erected on the streets or sidewalks without the sanction of the legislature is a nuisance.</p> <p>A local municipal corporation cannot give a valid permission to any one to occupy the streets or sidewalks with continuing erections or other obstructions without express power conferred by statute.</p> <p>The municipal legislature of the city of New York has no power to authorize the occupation of the streets and sidewalks, in.the neighbor-</p> <p>hood of toe markets, with stands and booths to be kept and maintained continuously at all hours of the day.</p> <p>It is the duty of the commissioner of public works to remove all illegal obstructions placed upon the streets and sidewalks.</p>

Soleliac & Sons were large ribbon and silk manufacturers at Paterson, New Jersey. During the years 1875 to 1877, the plaintiffs advanced large.sums of money to them, and the latter in turn manufactured silk and consigned the same to plaintiffs for sale. On the 8th of September, 1877, Soleliac & Sons failed, and made a general assignment to the defendant, a member of the firm of Oberteuffer, Abegg & Co. The latter took possession of all the stock and machinery of the debtors.

This is a motion in a foreclosure suit on behalf of defendant Joseph Moore, the holder of a second mortgage, to open a default, and for leave to answer and set up the defense of usury.

<p>Before Davis, P. JBeady and Barrett, JJ.</p> <p>Appeal from order of reference to assess damages.</p>

<p>The plaintiff furnished the late George H. Zeiss certain lumber, which said' George H. Zeiss purchased for the purpose of building fences and other structures in his coal yard on Avenue D, in the city of New York. George H. Zeiss, agreed to pay cash for the lumber, hut after all the lumber was furnished and used for the purpose intended, hut before it was all paid for, Hr. Zeiss died intestate, and the defendants, Katherina W. Zeiss and J. D. Kurtz Crook, were appointed administrators by the surrogate of the county of Kings. Thereafter, and before the expiration of thirty days from the time of the furnishing of the lumber before mentioned, the plaintiff filed a notice of claim or mechanic’s lien in the clerk’s office of the city and county of New York, and thereafter commenced an action to foreclose the same. The defendants demurred to the complaint on the ground that the complaint did not show a sufficient cause of action, Hr. Zeiss having died before the lien was filed.</p>

<p>Appeal from order staying proceedings upon a judgment of foreclosure and sale. The mortgage was upon leasehold premises.</p>

Motiou by Bernard Tillman, a purchaser at a partition sale, to be relieved from the completion of his purchase and to have his deposits restored.

<p> Practice—Justification of sureties on appeal—Effect of adjournment out of. court. </p> <p>Where justification of sureties on appeal to the court of appeals has been inadvertently adjourned “out of court,” the appellant has no such “fixed right ” to sue on the undertaking to the general term as prevents the court from directing the new bond to be filed nunc pro tune.</p>

Johnson Bbos. & Co., Bates, Reed & Cooley, Lee, Tweedy & Co., and several other judgment creditors of the late firm ¡of Rogers & Orr Bros., brought actions last spring against ■ex-sheriff Reilly to recover, in the aggregate, about $25,000 for alleged false returns of the several executions issued by them and levied upon the store of the judgment debtors, Nos. 183, 185 and 187 Eighth avenue.

This suit is brought ■ to recover damages on account of alleged false and malicious statements, threats and warnings of defendants to customers of plaintiffs and parties dealing or about to deal with them, and for an injunction to restrain defendants from further interference with the business of plaintiffs.

<p> The, authority of commissioners of excise of the city of New York to grant ale </p> <p>The laws of this state permit the granting, in the city of New York, of an ale and beer license authorizing its sale; to be drank on the premises, when the party selling is not licensed as a hotel keeper. Such licenses are in the discretion of the board of excise.</p>

<p>Attorney and client— Their relations as to compensation —Attorney’s cha/rges against executors—Attorney not entitled to cha/rge for his services as a lobbyist.</p> <p>It is the duty of the court, in a case where an attorney retains money collected by him, as compensation for professional services rendered and disbursements expended by him, to see to it that while the attorney is protected in his legal rights, and fairly compensated for his services, he does not take the slightest advantage of his particular relations to his</p> <p>' client, or of the fact that the disputed moneys are in his own hands and may he retained by him under his lien until: his compensation is adjusted.</p> <p>It must be shown, where the charges are against an executor, not only that they are a fair compensation for such services, but that they were the proper subject of charges against an executor, and were necessary under the circumstances.</p> <p>Interviews with creditors of the estate and the answering of their inquiries are not the proper basis of a claim against the client of the attorney.</p> <p>A lawyer has no right, while acting merely as a lobbyist, to ask the court to consider him as entitled to the protection and compensation generally regarded as due to the office of attorney and counselor.</p>

<p>Change of venue — Code of Civil Procedure, section 982.</p> <p>Where two causes of action, described in the complaint, related to real property situated in the county of Kings, and the other causes of action related to personal property :</p> <p>Held, that the place of trial should be changed from New York, where it was improperly laid, to the county of Kings.</p> <p>Section 982 of the Code of Civil Procedure considered.</p>

This was an action brought by plaintiff to recover as damages a sum of money fraudulently embezzled and converted by defendant while acting in a fiduciary capacity as agent for plaintiff. Defendant was arrested on the complaint and an affidavit showing defendant thus collected the money and appropriated it to his own use.

Motion in behalf of the plaintiff to be relieved from his bid at sheriff’s sale under execution. Also motion in behalf of M. F. De Casio, a judgment creditor, to compel the plaintiff to complete the sale.

Motion to set aside judgment entered upon confession by one of two joint debtors, and the execution thereon, for irregularity.

<p>Appeal from two orders, one denying a motion to set aside a warrant of attachment, and the other denying a motion for leave to renew the first motion on additional affidavits.</p>

<p> Examination of defendants to enable plaintiff to prepare his complaint. </p> <p>In an action by the administrator of a deceased partner against the surviving partners, among other things for an accounting, the plaintiff is entitled to an order for the examination of the defendants in order to enable him to prepare a complaint, but the examination should be limited to an inquiry only into the facts necessary to be included in the complaint.</p> <p>Note. — Affirmed on appeal to the generaTterm. [Ed.</p>

<p>Motion by defendant, Jacob O. Kellis, to set aside judgment entered herein, as irregular and void.</p> <p>Heard at Ogdensburgh, first Tuesday in January, ,1880.</p> <p>Decided July 29, 1880.</p>

Motion by defendant for leave to enter judgment upon a referee’s report, and motion submitted by both parties to offset costs, both motions being heard without notice upon stipulation of counsel. The action was begun in April, 1875.

<p>Motion to vacate attachment against property.</p>

James H. Greensward, a lawyer, sued the Union Dime Savings Institution and its trustees to recover $5,000 for alleged services in taking care of eleven houses and lots in Forty-seventh street and Lexington avenue during two years from November, 1876.

<p>Justices' courts—OonstaMe’s return—Power of justices of the peace as to amendments—lrregula/rities which will not affect a judgment— Officer de facto—his acts sustained.</p> <p>Where, on appeal from a justice’s judgment, it is alleged as error that the constable who served the summons was not a legal officer and that his return of "the service is false, it is shown by affidavits that the person serving the summons has long been acting and recognized by the public as a constable and claims to be a legal officer and authorized to act as such:</p> <p>Held, that, being a de facto constable his official acts; so far as the public and third persons are concerned, are just as valid and effectual as though he was an officer de jure, and his title and acts can only be questioned in a direct proceeding with him in which they were in issue.</p> <p>Where a justice’s return on appeal shows that all the jurisdictional steps were taken necessary to a valid judgment before him; that he issued a summons which was served on the defendant by a constable personally, enough is stated to raise the presumption of the regularity as to the form of the summons and its due service. If any error occurred, it is the duty of the appellant to make it clearly appear to the court on appeal, as no presumption can be indulged in against the judgment. Where the justice in his return certified that he issued and delivered the summons to the constable for service on the twenty-third, and on the same day it was duly returned to him by the constable with a return of personal service, the constable in his return certifying that he served the summons on the 3d day of January, 1880. Prom affidavits read it appeared that the summons was duly served and returned on January twenty-third. The date of service in the constable’s return is not correct, and was inserted by him by mistake in neglecting to add the figure 3 just before the figure 3:</p> <p>Held, that this is not fatal to the judgment.</p> <p>Held, also, that ample power exists for amending the constable’s return and correcting the irregularity therein. The justice had the authority to allow the amendment before or after judgment, and the amendment may be allowed now in furtherance of justice.</p>

The defendant was held on an order of arrest based upon false and fraudulent representations made at the time of contracting the debt, and the subsequent fraudulent disposition of his property. A motion having been made upon affidavits to vacate the order of arrest, a reference was ordered, and pending the hearing a stipulation was signed by the counsel on either side, that further evidence might be given on three days’ notice.

<p> Mcamination of parties before trial—Wbat affidamt must state to justify an order for. </p> <p>To justify an order to examine a defendant to enable a plaintiff to frame his pleading, the affidavit must make disclosure of what induced plaintiff to proceed; and the framing of a general averment is not sufficient.</p>

<p> Contempt—When proceedings to be deemed to hme been terminated, for the pwrposes of review. </p> <p>Where a final order has been made convicting a person of contempt and pronouncing upon him judgment of fine and imprisonment, the proceedings are, for the purposes of review, to be deemed to have been, terminated.</p>

<p> Saib'oad foreclosure—Computation of amount due—What must be shown to sustain amerment of inadequacy of price—Void order. </p> <p>Where, in a foreclosure of a railway mortgage, bonds are outstanding and pledged as collateral, it is not error for the referee to compute, to include them in his estimate of the amount due.</p> <p>A person obtaining a void order cannot use it to excuse the laches caused by trusting to it.</p> <p>An order vacating an order is a judicial authority that it should not have been granted.</p>

<p>AlPPEal from judgment overruling demurrer to the third cause of action contained in the complaint.</p>

<p>Savings banks —Liability of trustees for damages caused, by their misconduct— discharge in banlarwptcy— A claim, for unliquidated damages a/rising 'solely from a tort not provable in bankruptcy.</p> <p>Trustees of a savings bank are liable for damages caused by their misconduct in the management of the .affairs of the bank.</p> <p>Where the proof showed that the bank was substantially insolvent, owing its depositors over $70,000, and its assets were entirely insufficient in amount and in an unsatisfactory shape to- meet any sudden or unusual call. In this condition of affairs the trustees authorized the purchase of four lots, at the cost of $74,500, obligating themselves to build a building on one of the lots to cost $25,000:</p> <p>Held, that such a state of affairs justified a finding by the jury that this was not a case of mere error or mistake of judgment on the part of the trustees, but that it was a case of improvidence, of reckless, unreasonable extravagance, in which the trustees failed in that measure of reasonable prudence, care and skill which the law requires, and imposes liability upon them for loss thereby occasioned.</p> <p>Certain of the defendants pleaded a discharge in bankruptcy:</p> <p>Held, that they were not relieved thereby. The cause of action was for unliquidated damages arising solely from a tort. Such a claim is not provable against the bankrupt estate.</p> <p>As to one of the defendants, Philip Smith, there was no evidence, other than the minutes, of his attendance at the meeting which authorized the purchase; he, himself, denied such attendance in the most positive terms and asserted his entire ignorance of the transaction until after it was closed:</p> <p>Held, that this entitled him to a dismissal of the complaint, that he was not liable because of his subsequent inaction.</p>

<p>Summary proceedings to recover the possession of real property—Non-resident landlord, not required to file security for costs — Code of Civil Procedure, section 3279.</p> <p>In summary proceedings to recover the possession of real property, a landlord being a non-resident, but owning property in the city and county of New York, cannot be required to file security for costs.</p> <p>This proceeding is not “ such a special proceeding instituted in a court' of record ” as is contemplated by section 3279 of the Code of Civil Procedure.</p>

The plaintiff being the owner of a small plot of ground in Greenwood cemetery, in which the bodies of three of his children were buried, borrowed of the defendant Hickey, a small sum of money, and as security for its return gave to Hickey a conveyance of the lot. The defendant Hickey, afterwards, without notice to the plaintiff, conveyed the lot to the defendant Farnham, who subsequently sold and conveyed it to the defendant Clark.

<p>Proceedings supplementary to execution.— Warrant of arrest instead of order to examine judgment debtor—Sufficiency of affidavit to entitle a party to the warrant— Code of Civil Procedure, section 2437.</p> <p>Under section 2437 of the Code of Civil Procedure, it is necessary for the creditor, before he is entitled to a warrant of arrest against J;he judgment debtor,- to establish, to the satisfaction of the judge to whom the application for the issuing of a warrant is presented, by affidavit, that there is danger that the judgment debtor will leave the State or conceal himself, and there is reason to believe that he has property • - which he Unjustly refuses to apply to the payment of the judgment. Where the allegations in the affidavit, on which the warrant is asked are stated to he upon belief, and the fact of the defendant’s having property is a mere matter of inference on the part of the plaintiff, based upon the fact that the defendant is a man of extravagant habits, living in the best of hotels, &c. :</p> <p>Meld, that such ait affidavit is insufficient.</p>

<p>Application to the court for judgment by default—when necessary—Code of Civil Procedure, sections 420, 549, 1214.</p> <p>Judgment by default in an action for conversion can be entered only on application to the court.</p>

This is an action brought to foreclose a lien filed against a fund in the possession of the defendant, The Mayor, Aider-men and Commonalty of the City of Eew York, due and to grow due on account of a contract made by the said defendant for the construction of an arch in Forty-second street, Eew York. The fund now amounts to $1,300. The contract is in course of construction and other sums may become due.

<p> Pension—What attorney may charge for prosecuting a claim for a pension. </p> <p>Although an attorney is prohibited by the laws of the United States from charging or taking more than ten dollars for prosecuting a claim for a pension, such prohibition does not cover services rendered for the person claiming the pension after the certificate for the same was issued.</p>

<p>Replevin—Chattels—Tww reclaimed, by defendant— Code of Civil Procedure, sections 1704-1706.</p> <p>Where a defendant desires to reclaim chattels replevied he must serve upon the sheriff written notice that he requires the return thereof; and he must file an affidavit that he is the owner of the property, or that he is lawfully entitled to the possession thereof.</p> <p>These conditions are mandatory, and the failure of a defendant to comply with them renders his counter-bond nugatory.</p>

This was a suit heard on demurrer to complaint. The suit was against the defendant, a mutual life insurance company.

<p> Trade-mark—When cm imitation of the packages, labels and mcmner of dressing goods of a/nother will be restrained by injunction. </p> <p>An imitation of the packages, labels and manner of dressing goods of another will be restrained by injunction where the party has combined these things in such a manner as to invade the plaintiff’s rights, secured by their first adoption in combination, and in a way well calculated to deceive buyers of the article.</p>

<p>' Mcamination of adverse party before trial — Code of Oivil Procedure, section 873.</p> <p>An order for the examination of an adverse party before trial will not he granted where the applicant only seeks to "find out what the opposite party will swear to, so as to enable him to prepare to meet and overcome it.</p>

This was an action for the foreclosure of a mortgage of real estate. A decree was duly made in the usual form for the foreclosure and sale by the sheriff of Steuben county, as referee. The whole amount of the mortgage debt was due, amounting to about $5,000. The entire premises were sold by the referee for about $4,000, leaving a deficiency of over $1,000. No bond was given with the mortgage.

Motion to vacate ex paa-te order removing cause to United States court. The defendant, on a petition presented to this court, stating that the parties were residents of different states, and that the amount in dispute exceeded $500, obtained an ex pa/rie order thSt the action be transferred to the United States circuit court for trial.

Motion to remove the above entitled cause into the circuit court of the United States for the southern district of New York.

Mbs. Julia A. Shaw commenced proceedings in the marine court against her tenant, John McCarty, to cancel his lease of the Rapid Transit Hotel, in East Forty-second street, near the Grand Central Railway Depot, and to eject him from the premises for sub-letting the basement of the hotel for a policy shop, in violation of the statute.

<p> Costs—when, and when not, defendants who sever in their defense, and all succeed, arre entitled to several Mils of costs. </p> <p>Defendants who sever in their defense, and all of whom succeed, are entitled to several hills of costs, unless, however, such severance he in had faith and to increase costs.</p> <p>Thus, if persons actually partners should sever in defending an action on a partnership liability, or if one defendant should defend by an attorney, and another by the attorney’s clerk, these would be cases of bad faith. The defendants, R. C. and J. C., were brothers, but when sued they had no joint business relations, although they had been, at a previous time, in business together: J. C. was a non-resident, having gone from the . state to avoid creditors. All the property was in the hands of R. C., the other defendant. The summons was served on J. C. by publication; there could be no personal service upon him, and there was no property subject to attachment. The retainer of R. C. is in the handwriting of the attorney for J. C. The answers are indentical, that of J. C. being copied and verified in the office of the attorney for R. C. The attorney for J. C. stated that he received a letter from J. 0. about the fifteenth of April requesting him to appear. But he does not state that he had not himself previously written to J. C.:</p> <p>Held, that the defendants had the right to appear by different attorneys and interpose separate defenses, and having succeeded on the trial they were entitled to separate bills of costs under section 805 of the Oode as matter of law, subject, however, to the power of the court to confine them to one bill in case it should be made to appear that they had made their separate defenses collusively to enhance costs.</p> <p>Held, further, that, taking all these matters into consideration, and seeing the uselessness of this severance, or perhaps of any defense by J. 0., the severance of defendants was not in good faith, and they should be confined to one bill of costs.</p>

<p>Motion to set aside writ, &c.</p>

This is an application for a mcmdarrms to compel the election inspectors of the twenty-first election district of the first assembly district to register the name of the relator.

<p> Will—construction of—When accumulated income arising under a trust goes to those entitled to the principal sum from, which the income was (¡wived. </p> <p>Where the testator, by his will, gave his son T. H. S. $10,000, in trust, and directed him to put the same at interest on good security, and with the interest thereof, or so much as might be necessary for that purpose, to support and maintain the testator’s daughter, A. S., in a decent and comfortable manner, or at his discretion to give and pay to her annually the whole of the interest thereof ; and, at her decease, the testator gave the said $10,000 to all the children of A S., then living, equally, but if she should die without lawful issue then living, the will gave the same, equally, to his son, daughter and grandson, naming them, and to their legal representatives, respectively. A. S. was a lunatic and so remained until her death. -' She died without issue. The income of the $10,000 was more than sufficient to pay for her proper support, and several thousand dollars of unexpended income had accumulated at the time of her death in the hands of the trustee:</p> <p>Held, that accumulated income, arising under the facts above indicated, should go to those entitled to the principal sum fromgvhich the income was derived ; that as to this fund of $10,000, which had been carved out of his estate by the testator and distinctly set apart to be invested, and which after the death of his daughter was to be paid to the persons</p> <p>named by Mm, the same should carry with it to the legatees the interest or income wMch it had earned, and wMch was not expended for his daughter’s maintenance.</p>

<p>Supplementary pyroceedings—Place of business—Code of Civil Procedure, section 2458.</p> <p>In order to examine a non-resident of the county upon supplementary proceedings, it must appear that the defendant has within the city an office for the regular transaction of business in person, as contradistinguished from cases where he transacts the same through agents.</p>

<p>Injunction — under section 604 of the Code of CM Procedure — when will not he granted.</p> <p>Where the action was to recover damages for false representations, made by the defendants, except EL, by which plaintiffs parted with a large amount of goods, and while judgment is asked against the defendants, other than EL, for the amount so lost, the suit is against H. to restrain him from parting with, or disposing of, goods assigned to him, pending the action:</p> <p>Held, that under a proper construction of section 604, subdivision 2, an injunction should not be granted.</p>

This is a motion by plaintiff to insert, in an order previously granted vacating an order of arrest against defendant, a clause compelling defendant to stipulate not to prosecute the plaintiff for false imprisonment.

This is an action brought by the plaintiff to recover upon a judgment rendered by the court of chancery for Ontario, in the Dominion of Canada, a court having general jurisdiction, and having jurisdiction of the subject-matter determined by the judgment.