Volume 6 — Abbott's New Cases

Writ of error. The plaintiff in error, Nathan O. Greenfield, was indicted for murder, and tried at oyer and terminer of Oswego county, but the jury failed to agree. Upon the second trial, two of the jurors were challenged by the .counsel for the prisoner: one of them for principal cause and as having formed and expressed an opinion ; and both for favor and as not being indifferent and impartial.

Motion to quash an indictment. The prisoner, Thomas Shattuck,. was indicted for murder, and upon being arraigned, and before plea, a motion was made to set aside or quash the indictment, upon the ground that the grand jury never, in fact, found the bill.

Motion by the defendant for a new trial on a case containing exceptions. The defendant, Merritt H. Briggs, owed the plaintiff, David Graves, a debt, for which he held defendant’s note, which was past due. At the request of the defendant the plaintiff gave up the note and received from him as security a mortgage on a house and lot owned by the defendant, unaccompanied by any promise to pay the debt.

Habeas corpus. The petitioner, John Leary, by his petition sworn to December 21, 1878, applied to the court for a writ of habeas corpus, averring that he was held in custody by the sheriff of the city and county of New York; that the pretense of his imprisonment was a warrant issued by the governor of New York, directing the sheriff to arrest said Leary and deliver him over to the custody of one Pinkerton to be taken to the State of Massachusetts upon a requisition of the…

Motion by defendants to consolidate actions. The plaintiff, Charlotte E. McC. Bech, brought six actions against James F. Ruggles and Grace B. Buggies his wife, to foreclose six separate mortgages, bearing even date, and executed respectively by the defendants to secure several sums amounting in the aggregate to $25,000, and covering separate adjoining lots in the city of New York.

Action against an agent for negligently investing money. Trial by the court. The action was brought against the defendant as the agent and trustee of the plaintiff, employed by her to invest the sum of $6,000, on bond and mortgage, in the city of New York. The investment consisted of two mortgages on two tenement houses in East Seventeenth street, between Avenues B and 0, due one year from date.

Appeal by defendant from a judgment entered upon the report of a referee. The action was brought by the Wayne County Savings Bank, situated at Honesdale, Pennsylvania, against Henry ft. Low, of Middletown, New York, to recover upon a promissory note of which the following is a copy: “$2,000.

Appeal by plaintiff from a judgment, and from an order denying a new trial. Two actions were brought by Joseph Willy, one as administrator of his wife, Catharine Willy, and the other as administrator of his son Jacob Willy, against Patrick Mulledy, for damages for the death of his said wife and son. The plaintiff rented from a real-estate agent the rear rooms, on the top floor of a three-story frame building in the city of Brooklyn, belonging to the defendant.

Appeals from orders. Lavinia B. Bryon, claiming to be entitled to about one-eighth part of certain real and personal estate under the last will and testament of Richard P. Dunn, her grandfather, applied to William H. Sloan, Esq., an attorney and counselor at law, to institute proceedings to ascertain and recover her interest in said estate, and agreed to furnish sufficient money to bear the expenses of the legal proceedings, and that he should be well paid for his services,…

Motion by plaintiff for further bill of particulars. This action was brought by Julia Eberhardt, to recover one-third part of the proceeds of a life insurance policy, collected by the defendant as guardian of the plaintiff. One Paul Bosch died in 1864, leaving a widow, Maria F. Bosch, and three daughters, Julia (the plaintiff), Pauline and Fanny.

Motion by plaintiff for a new trial, on the minutes, exceptions and a verdict of the jury.

I. Motion by plaintiff in error for a new trial. The plaintiff in error, Robert L. Case, was president of the Security Life Insurance and Annuity Company in the city of New York.

The plaintiff in error, Thomas S. Lambert, was convicted in the oyer and terminer of New York county of perjury in swearing to an affidavit verified on March 12, 1877, in said… Held: that even though the notary was a nonresident he was an officer de facto and his acts were valid and binding ; that the prosecution was not bound to show affirmatively that the notary had actually taken the oath of office ; and that the evidence of the declarations of Reid were admissible.

Motion to quash an indictment. This was a criminal action by the people of the State of New York against D. Thomas Vail for perjury. ' The defendant was the president of the Merchants and Mechanics’ Bank of Troy.

<p>Adjournment or Triad.—Affidavits.—Arpead.</p> <p>An exception lies to a refusal to postpone a trial on account of the absence of a material witness.*</p> <p>An appellant who has taken exception to the refusal of his motion to postpone a jury trial for absence of a witness, is entitled to have his moving affidavits inserted in the case on appeal.</p>

Appeal by plaintiff from a decree of the surrogate of New York county. This was an application for the probate of a paper which was not produced.

<p>Municipal Corporations.—Assessments for Local Improvements. —Hearing Objections.—Presumption of Official Regularity.—Constitutional Law.</p> <p>Under a city charter (that of Buffalo; 3 L. 1870, p. 1193, c. 519, tit. vi. § 14),—which provides that after perfecting the assessment roll for the expenses of a local improvement, ‘ ‘ if objections shall be filed with the city clerk to such roll, he shall, at the first regular meeting of the common council, after the expiration of the tinle for filing objections, lay such roll and the objections filed thereto before the common council, who shall, on that or on such other day or days as it shall appoint, hear the objections and confirm the roll, or annul it, or refer it back to the assessors to make a new assessment,”—objections filed must be heard by the common council. A report by the city clerk to the council in open session that such objections had been filed, is not enough.</p> <p>The fact that the objectors do not appear to argue the question does not dispense with the necessity of a hearing of the objections, and deliberation and action thereon by the council, in order to constitute a valid assessment.</p> <p>The presumption that public officers have performed their official duty, does not apply to the proceedings of the legislative bodies of municipalities.</p> <p>It seems, that it is not competent for the legislature, in the exercise of the power of taxation, to charge the property of one citizen by a course of proceeding unknown to the common law, and differing from that by which the property of all other citizens is taxed or charged.</p>

<p>Railroads.—Registered Coupon Bonds.—Destroyed Securities. —Issue oe Duplicate Bonds.</p> <p>Where registered, coupon railroad bonds were destroyed at the same time that their owner lost his life by the burning of a steamship, and an action was brought by the administrator of the decedent to compel the railroad company to pay interest in arrears, and issue duplicate bonds,—Held, that upon receiving an indemnity bond with sureties, the defendant should comply with the demands of the plaintiS.</p>

Dissolution of life insurance company. The North America Bife Insurance Company was organized under chapter 463 of the Laws of 1853,- and it also transacted business as a registered policy company under chapter 902 of the Laws of 1869.

<p>Supplementary Proceedings.—Receiver.—Trustee.— Substitution or Receiver as Plaintiff in Suit by Judgment Debtor.—Lien for Costs.</p> <p>The appointment of a receiver in supplementary proceedings vests in him all the property, real and personal, and rights of action of the debtor.</p> <p>If the debtor is plaintiff in a suit, and has an interest in its further prosecution, the receiver is entitled to be substituted in his place as plaintiff.</p> <p>If the receiver’s security is not sufficient, it can be increased before entry of an order of substitution as plaintiff.</p> <p>The court may also, in its discretion, direct that the order of substitution provide that the receiver shall make no change of attorney of record for the plaintiff without application to the court, showing a satisfactory cause therefor.</p>

<p>Supplementary Proceedings.—Requisites of Order for Examination of Judgment Debtor.</p> <p>An order for the examination of a judgment debtor in supplementary proceedings, must state all the facts necessary to give the court of common pleas jurisdiction.</p> <p>If such facts are stated only in the affidavit on which the order is obtained, the order is irregular.</p> <p>Such an order on a judgment recovered in a district court, or in a justice’s court, must show that a transcript of the judgment was filed and docketed with the county clerk, and when it was so filed and docketed. '</p>

Action to enjoin the erection of a bulkhead, and for damages. This action was brought by Walter Langdon against the Mayor, &c., of New York city, to enjoin the erection of a new bulkhead between King and Houston streets, in said city, and for damages in consequence of the obstruction of access of vessels to the old bulkhead.

Foreclosure of mechanics’ lien. Trial by a referee. - This was an action by Patrick K. Morgan and others against Marietta R. Stevens and others, for the foreclosure of mechanics’ liens, filed on behalf of sub-contractor, under the law of 1863.

Motion by defendant to open a judgment entered on the report of a referee, and for a new trial. The action was brought, Christoph Schweizer against Alonzo B. Raymond and A. Clayton Raymond, to recover the freight on a cargo of beans carried on the deck of a canal-boat from Albion and Brockport to New York. By the express agreement of shippers (the defendants) and the carrier, the beans were to be carried on deck.

Trial by the court. This action was brought by William R. Gould and another, against The Central Trust Company, Thomas S. Marlor and others, to compel the trust company to sell certain stock, which had been wrongfully hypothecated to it by John Bonner & Co. On October 15, 1877, the plaintiffs borrowed from John Bonner & Co. $50,000, on the security of 800 shares of Chicago & Alton Railroad stock.

Trial by the court. This was an action by Robert L. Cutting, Jr., as receiver of the Bankers’ and Brokers’ Association, against Thomas S! Marlon, to recover from the defendant the sum of $6,000, loaned to him by the association.

Application having been made by the trustees, for the dissolution of the Congregational Church in Union Village, Greenwich, Washington county, in this State, and certain members opposing it, the court appointed a referee to ascertain and report a proper person for a receiver; what indebtedness existed; what property it possessed; what legacies were held by the corporation, and the purposes for which the trustees propose to apply the surplus of the property.

This action was brought by William B. Whitney, et al., against Albert Daggett, late sheriff of Kings county, for failing to execute an order of arrest in a civil action, and for falsely returning that the defendant in said order could not be found. Plaintiff recovered a verdict óf $25, and the question presented is, which party is entitled to costs ?

<p>Witness Fees.—Subpoena Duces Tecum.</p> <p>The fee to be paid a witness, subpoenaed under a subptma duces tecum, is 50 cents.</p> <p>The act of 1840 provided for but one class, including all witnesses, and prohibited any other fee.</p>

The executors of Frederick Meyer petitioned for a final settlement, and the question of the distribution of the estate brought under consideration the construction of the will. The provisions in question were 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.

Trial by the court. This action was brought by Charles Y. Roosevelt against James A. Roosevelt, as surviving trustee for the said Charles Y. Roosevelt, for alleged imprudence, negligence and carelessness in loaning trust funds, and in the performance of his duty as trustee. James I. Roosevelt died April 5, 1875, leaving a last will and testament, appointing James A. Roosevelt and Theodore Roosevelt exebutors and trustees thereof.

Appeal by defendant from a judgment in favor of the plaintiff. The action was brought by Luther Redfield, as assignee of the firm of 0. H. McCormick & Co. Plaintiff’s assignors employed one Stearns, an insurance broker in the city of New York, to procure for them an insurance upon property in New Jersey. Stearns applied to the defendant, a company organized and doing business in that State, and having its office at Paterson.

<p>Foreclosure of Mortgage.—Infancy of Mortgagor.—Dower Rights of Infant Wife.—Subrogation.</p> <p>Where a mortgage upon lands, executed by a husband and wife, was created to raise funds to pay off a prior mortgage upon the same premises, executed by the mortgagor before his marriage, and the funds were used for such purpose, it afterwards appearing that the wife, at the time she executed the last mortgage, was an infant, but the fact of such infancy was not disclosed,</p> <p>Held, in an action to foreclose the last mortgage, that the person taking the same was entitled to be subrogated to the rights of the mortgagor under the first mortgage, and that the same should be revived and enforced to the amount advanced to pay the same, to the exclusion of the dower rights of the wife, and that such dower rights would attach only to any surplus remaining after the mortgage debt was paid.</p> <p>Banta v. Garmo, 1 Sandf. Oh,. 383, distinguished; Barnes v. Mott, 64 N: T. 397; Green ». Milbank, 3 Abb. New Oas. 138, applied.</p>