Volume 60 — Howard's Practice Reports

<p>Motion by plaintiffs for a receiver.</p>

<p>Motion for the confirmation of the report of the referee computing amount due and for judgment of foreclosure.</p>

This is an action for the foreclosure of a mortgage made by the defendant Schlesinger, given as collateral security for the payment of a bond executed by Schlesinger and the defendant Smith. Smith was surety upon the bond for the mortgagor. It was asked in the action that Smith should be bound for any deficiency which might arise on the mortgage sale.

Defendant moved, upon an affidavit by himself and Hath aniel 0. Mo ah, his counsel, to quash an indictment .against him for murder in the first degree, in killing one '.Erfekine Wood, found by the grand jury at this term.

<p>Motion to remand case to the marine court of the city of Hew York.</p>

Motion on behalf of the plaintiff to confirm the report of the referee and for judgment annulling the marriage of the parties.

Motion on the part of the receiver and the attorney-general to confirm the’ actuary’s report upon the condition of the defendant.

The plaintiffs, who are bankers, sue the defendants upon a promissory note for $1,000, made the 11th of June, 1879, by the defendant Flannelly to the order of the defendant Flattery, payable fifteen months after date. This action wag begun October 11, 1880.

<p> Executor or administrator—Bemedies of a creditor upon the bond or other obligation of the intestate or testator seemed by a mortgage. </p> <p>An action can be maintained by a creditor against an administrator to recover the amount of bonds of the intestate, the payment of which are secured by mortgages executed by him upon real estate, and the fact that the creditor is the owner and holder of mortgages upon lands, situated in the state of New Jersey, given as collateral security to the bonds, is no defense to the suit. The provisions of 1 Revised Statutes, 749, section 4, is no bar to such action.</p>

Motion to determine amount of surplus remaining in the hands of the sheriff after sale on execution, and to compel payment thereof to defendant.

Mr. Eugene Burlingame moved to put this cause on the calendar, which the clerk, in making up, had refused to do, because the fee specified in subdivision é of section 3307 of the Code of Civil Procedure, which took effect September 1, 1880, was not paid to the clerk. Mr. Burlingame showed, by affidavit, that before Septem1, 1880, the sheriff had been paid more than one dollar and fifty cents calendar fees in this action.

Trial by the court without a jury. The cause, though on the calendar of the Albany circuit and special term, was heard by the judge holding such circuit at his chambers in Kingston, by the agreement of parties.

<p>Demurrer to the complaint on the ground that it does not state facts sufficient to constitute cause of action.</p>

<p>¡Summary proceedings — Jurisdiction of district court justice to remove tenant where premises are not within his district.</p> <p>A district court justice has no jurisdiction in summary proceedings to remove a tenant where the premises, which are the subject of controversy, are not within the district in which he was elected.</p>

This was a motion by plaintiff for judgment in a foreclosure suit based upon an affidavit of regularity under Rule 63, where all the parties were in default except an infant who had appeared by guardian and interposed an answer wherein, among other things, it was alleged as follows: “And said defendant, by his guardian, further shows and alleges on information and belief that the original mortgage mentioned in the complaint herein, and bearing date December 18,1867, was…

<p> Estoppel—When judgment in justice court, in an action for trespass upon land, is a bar to an action in supreme court to recover possession of the same land. </p> <p>The judgment or decree of a court possessing competent jurisdiction is not only final as to the subject-matter thereby determined, but also as to every other matter which the parties might litigate in the cause, and which they might have had decided.</p> <p>Where, in an action in the supreme court to recover the possession of land, the facts which the plaintiff claims entitles him to recover are that, up to July 10, 1876, he, and those whose estate he has, had been in possession of the property under a claim of title for more than twenty years, and that on that day the defendant J. O. unlawfully entered under the defendant A. 0. and wrongfully took possession. An action had previously been brought in a justices’ court for a trespass upon this .identical property (the defendant in that suit being the plaintiff in this ■ action), and the issue which the plaintiff in that action, and one of the defendants in this action tendered in substance, was that on or about the 16th day of June, 1876, by virtue of an agreement with A. O., the plaintiff in that action, became possessed of the land described — which is described by metes and bounds — as a part of the saw-mill lot. He came into possession not as a trespasser but by virtue of an agreement with A. O. He took and became possessed of it as a part of the sawmill lot. The defendant in opposition tendered the following issue: He denied each and every allegation, and claimed that he had been in possession of the property for the last twenty years:</p> <p>Held, that the. judgment which was recovered by one of the defendants in this action in justices’ court against the present plaintiff for a trespass upon this identical property is a bar to this action.</p> <p>Litigating the question of possession is not trying the title, but it is an issue which can be properly tried and determined in justices’ court.</p>

<p>Motion to set aside an attachment.</p>

<p>Cebtiobabi to the commissioners of public parks.</p>

<p>Demurrer — Bill in equity to dissolve partnership and to adjudge void certain attachments issued by creditor's of the firm is denrnrrdble by said creditors.</p> <p>A bill in equity to dissolve a partnership and to adjudge void certain attachments issued by creditors of the firm, is demurrable by said creditors. As to such creditors the remedy at law against their enforcing said attachments is adequate. The parties can release the attached property by a bond. They can move to vacate the attachments. They can defend on the ground that the court issuing the attachments has no jurisdiction. If such creditors sue in the wrong court, it is not the province of a court of equity to bring them in as parties to answer an allegation to that effect and to have their suit arrested.</p>

order directing the plaintiff to file security for costs. The plaintiff is a'resident of Brooklyn. The order appealed from was made on the 13th day of April, 1880.

<p>Appeal from an order granting a writ of prohibition to restrain summary proceedings in a landlord and tenant case to recover the possession of certain leasehold property.</p>

<p> Practice—Answer—Extension of time—When time to answer would Time expired in five days, effect of stipulation extending time twenty days. </p> <p>The plaintiffs attorney, when defendant’s time to answer would have expired in five days, gave a written stipulation extending the time to answer twenty days:</p> <p>Held, that the stipulation had the effect to give twenty days additional time to answer, and not fifteen days.</p> <p>Held, further, that where the stipulation was signed on the sixth day of April, a demurrer served on the thirtieth was in time.</p> <p>It was entirely proper to make a motion requiring the demurrer to be received, instead of delaying until after judgment was entered, and then moving to open the judgment.</p> <p>The defendant’s right to serve his demurrer within the twenty days’ extended time, is clear and a substantial one, and the order denying its exercise is appealable.</p>

<p>Meamination of parties before trial—In action for damages for personal injuries under what cwcumstanees defendant may examine plaintiff— Code of CM Procedwre, sections 872, 873.</p> <p>In an action for damages for personal injuries a defendant may examine a plaintiff before answer if it appear that the facts stated in the affidavit, upon which the application is based, would tend to support a defense.</p> <p>The application will be denied when the affidavit upon which it is based fails to specify the special matters of defense he wishes to examine the plaintiff upon.</p>

<p>Attachments — What affidavits must show to entitle a person to, under subdivision 2 of section 636 of the Code of Civil Procedure.</p> <p>It matters not what a person believes or disbelieves, the applicant for an attachment under subdivision 2 of section 636 of" the Code of Civil Procedure, must show by proof of facts known to the .witnesses who testify to them, that the belief in the intent to defraud by a disposition of the property is well founded. In other words the intent so to defraud must be a fair and logical sequence from facts proved.</p> <p>It is not enough that a witness is willing to testify to a fact positively; he will not be allowed to so testify, when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legitimate testimony.</p> <p>The facts (even if true), that the defendant was insolvent when he made the purchases, that he bought more goods than he needed, and that he failed to disclose his insolvency in the absence of any false statements, are not sufficient to show any intent to defraud.</p> <p>Nor is it any evidence of intent to defraud, that the defendant refused to secure the plaintiffs; so long as the law allows preferences to creditors by a failing debtor, it cannot be proof of intent to defraud, that the defendant intends to do what the law permits.</p> <p>Note.—The decision in this case was affirmed at general term in November, 1880.—[Rep.</p>

<p>Bmmtination of parties before trial—requisites of am, application by defendant for the examination of plaintiff where the suit is upon a promissory note— Code of Civil Procedure, sections 873, 873.</p> <p>It was a well settled rule that the complainant in a bill of discovery must show a good cause of action or a good defense. This is still an indispensable requisite of an application for the examination of an adversary.</p> <p>Whilst there is no reason for introducing the unwarranted and unwarrantable rule that a party who seeks to examine his adversary before trial must swear that he intends to introduce the examination as evidence on the trial, it is eminently proper to adhere to the equity practice which required the party seeking a discovery to state that he expected to prove by the examination the facts which he alleges to lie peculiarily within the knowledge of the person whom he seeks to examine.</p> <p>In an action on a promissory note where the defendant seeks to examine the plaintiff before answer the affidavit is defective, in that it does not state that the defendant expects to prove that the note in suit was not, either before it matured or at the time of its maturity, in the bands of one who could have collected it from the defendant, and that it came after its maturity into the hands of the defendant.</p> <p>The affidavit is also defective where, admitting everything it alleges, it does not show that the defendant has a defense.</p>

<p> Divorce—What necessary to sustain action for, on the ground of cruel cmd inhuman treatment. </p> <p>In an action for a limited divorce on the ground of cruel and inhuman treatment, it is unnecessary to sustain the charge that there should he personal violence.</p> <p>Threats and menace from which danger to health or life may be apprehended is sufficient, though the cause of apprehension should not only he weighty hut such as clearly showing that the duties and obligations of the marriage state cannot he discharged.</p> <p>Charges of infidelity, made maliciously without probable cause, are sufficient to sustain the action.</p>

<p>Examination of parties before trial— Code of Gimil Procedure, section 872— Peguisites of an affidavit on which an application is made for the examination of witnesses where no action is pending.</p> <p>Since the amendment which was made in 1879 to subdivision 6 of section 872 of the Code of Civil Procedure, it is requisite and necessary, in an affidavit on which an application is made for the examination of witnesses where no action is pending, to state what the circumstances are which render it necessary for the protection of the applicant’s rights that the witnesses’ testimony should be perpetuated.</p> <p>The meaning of the amendment to subdivision 6 is to require the applicant to show that he is in danger of losing the evidence of his right before it could be judiciously investigated. To prove that such danger exists it is incumbent on the complainant to allege that he has an interest, present or contingent, in the property, and that the defendant has or claims to have an interest. He is further bound to show that he is in danger of losing his witnesses by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he could at once bring a suit, he is bound to show that it has been commenced. If no action is pending, he is.obliged to explain why he is not able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment (an injunction for example) to an immediate trial in a court of law.</p> <p>Note.—Where the defendant seeks to obtain an order for the examination of the plaintiff before the answer is served, his affidavit must show what his defense is, and that it is a good one, and also state what material facts he expects to prove hy the examination. It need not state that he intends to introduce the examination as evidence at the trial. This was held by judge Van Hoesen in two cases: Sham agt. Yarn, Rensselaer {ante, 143) and MeGoon agt. White {ante, 149). The judge said that a bill of discovery which stated the matters which he required in the affidavit would be good in substance, and no more need be set forth in the affidavit than was requisite in the bill of discovery. The formal parts of the affidavit, it was said, must conform to the requirements of section 873. The authorities cited by the judge were 3d volume Barbour’s Ohamcery Practice {pages 101-116); Williams agt. Harden (1 Barb. Oh, R., 398); Primmer agt. Patten (33 Itls., 538; Story’s Eg. Jur., sec. 1493, b). [Rep.</p>

The facts appear in the report of the case at special term (See, ante, 13). On appeal from the judgment rendered at special term the following opinion was rendered.

On reargument of an appeal from a judgment rendered in the marine court in an action for damages for a wrongful discharge from employment.

This is a motion in behalf of the plaintiff for an injunction against the defendants, to restrain them from interfering with the business of the plaintiff, or intermeddling with any person in the employ of the plaintiff, or who is about to enter into its employ, or any one with whom the plaintiff is negotiating to enter into such an employment.

<p>Demurrer to reply.</p>

<p>Practice—Bapplrnnenta/ry proceedings—Jurisdiction and power of county judge as to appointment of receiver in—Appeal—Irregulmities which are waived hy— Contempt—Basis for imposition of fine.</p> <p>On a motion to set aside an order made by a county judge appointing a receiver in supplementary proceedings where it appeared that an appeal was taken to the general term of this court, which appeal is still pending:</p> <p>Held, that such appeal must be deemed to be a waiver of such irregularities if any there be, as are not brought up by it for review, and as to all such alleged irregularities and improper acts of the county judge as are covered by the appeal, they will be considered when the appeal shall be heard at general term. All action proper to be taken at special term, either to vacate it or correct it, should be taken before the bringing of the appeal from it to the general term.</p> <p>Where an order was made by a county judge declaring a judgment-debtor in contempt, the order being made on the return of an order to show cause, the same having been duly served on the debtor, but without his presence and without the appearance of anyone in his behalf:</p> <p>Held, that it being taken against the debtor by default it was competent for him to move to set it aside for irregularity. The moving party was bound to make a case for. the granting of the order on the merits, at least, the same as if the debtor had appeared and objected to the proceeding; and if he failed to make his case the debtor might and should move to set the order aside rather than to appeal.</p> <p>Can an appeal be taken from an order obtained by default for nonappearance? Quiere.</p> <p>Although a county judge may, under section 298 of the Code of Procedure, appoint a receiver in supplementary proceedings, it seems doubtful whether he is authorized by law to order a conveyance by the debtor of his property to a receiver or to direct its delivery and possession to that officer,</p> <p>To punish as for a contempt for refusing to deliver property to a receiver, an order requiring such delivery is a necessary prerequisite. A simple demand of possession is not sufficient.</p> <p>Where the order appointing the receiver directed the debtor to assign and convey his lands and real estate, but.contained no directions to the debtor to surrender its possession:</p> <p>Held, that he could not he held in contempt for omitting or refusing to do what had not been commanded or required of him.</p> <p>In contempt proceedings a fine cannot be properly imposed arbitrarily and capriciously; but it must have a basis upon proof of damages or injury.</p>

Motion to set aside sale made under a decree of foreclosure, and to release the purchaser upon the ground that the defendant Cecelia Schoen, a daughter of the mortgagor, being an infant, had not been served with a copy of the summons, and had appeared in the action, not by a guardian ad litem, but by attorney.

This action was brought to recover for work and labor done and for materials furnished by the plaintiffs, who were copartners and doing business in the city of Watertown as carpenters and general house-joiners, in repairing a dwelling-house for the defendant. The case was referred to one E. C. Emerson, as referee, and tried before him.

’This is a proceeding by habeas corpus. Upon the return to the writ the matter was referred for the taking of evidence. The referee -was directed to report thereon with his opinion. 'The object of the proceeding was to determine the father’s right to the control of his two children, who were with the ■mother. The motion was to confirm the report of the referee, who had decided in favor of the father. The parents were •living separate and apart.

<p>Will— Trust estate created by will which provides for accumulations for benefit of adults as well as minors is mid—Effect where annuity to widow is also charged upon real estate — after-born child.</p> <p>Though where a trust estate created by will provides for accumulations ' for the benefit of adults as well as minors, it is void under the provisions of the Revised Statutes—yet, where an annuity to the widow, provided for under this trust estate is also charged upon the real estate, that survives the failure of the trust.</p> <p>Such annuity, however, is subject to a proportional deduction in favor of an after-born child, who takes as if the father died intestate.</p>

This action was brought to enforce a judgment and decree of the court of chancery of the Province of Ontario and Dominion of Canada. The original action was commenced to compel the defendant to deliver to plaintiff the patent of certain lands situate in Shannonville in said province.

<p>Marriage — Divorce — Prohibition in divorce deerees — Laws of 1879, chapter 821, section 49 — Rights under, samed by repealing act of 1880— Code of Civil Procedure, section 1761.</p> <p>The right of a defendant in a divorce suit, the judgment in which prohibited him from marrying again, to make application under section 49 of the Laws of 1879, for a modification of such judgment, is saved by the repealing act of 1880 ; and section 1761 of the Code of Civil Procedure, containing the disqualification upon re-marriage never became operative law, except as modified by said repealing act.</p>

The action was brought in Eockland county, in July, 1875, against Elkin Hyman and Charles B. Bensen, to recover $6,000 damages for a trespass in taking the property of the plaintiff.

<p>The facts are the same as in the appeal from the order of removal (Supra p. 234).</p>

This was an appeal brought by an executor and trustee. The decree made by the surrogate upon the petition of the widow of the testator and beneficiary under the. trusts and also mother of the other respondents who are infants and children of deceased, praying in her own and their behalf for his removal from said offices for his incompetency as improvident and dishonest. Upon this petition a citation was issued to appellant to show cause why its prayer should not be granted.

<p>Costs on appeal from surrogate’s court — Separate appearance and Mil of ■ costs to infant respondents.</p> <p>Upon an appeal to the supreme court from the decree of the surrogate removing an executor and guardian, it is proper that infant respondents should appear by different attorney than adults and tax separate bill of costs, upon affirmance.</p> <p>From the service of the petition of appeal, the proceedings, so far as the question of costs were concerned, are to be regarded in this court, viz., costs of proceedings, before and after trial, of argument and term fees.</p> <p>Code of Procedure, section 307, not applicable to such appeals.</p>

<p>Application for a mandamus against the comptroller of the state of Hew York to compel him to audit a hill as approved by the superintendent of insurance.</p>

<p>Motion to confirm the report of the commissioners of estimate and assessment.</p>

Action for slander. The complaint alleged that on or about the áth, 5th or 6th days of August, 1880, &c., the defendant, at the town of Western and elsewhere, &c., and at divers and various other times and places, and in the presence and hearing of divers good and worthy citizens, spoke of and concerning the plaintiff, &c. The answer was a general denial.

This is a motion to vacate a final decree in the above entitled action. After the entry of the final decree, Charles Blitn, the plaintiff, died. The petitioners pray that his persons reprer .sentatives be brought in as parties plaintiff, or the alion be ¡revived if necessary. The defendant is a manufacturing corporation, organized under the act of 1848 of this state.

<p>Cost upon demurrer—Interlocutory costs upon issue of lam—Affidavit respecting disbursements — Code of Oivil Procedure, sections 419, 430, 3333, 3367.</p> <p>It is proper to allow costs on the decision of a demurrer, though an issue of fact is left to he determined upon a trial.</p> <p>Where the plaintiff drew the demurrer and served it and noticed the argument thereof, for such services, he is entitled to the costs before and after notice of trial, as well as twenty dollars for a trial of an issue of law.</p> <p>Items for copies of documents cannot he allowed without an affidavit that it or they were actually and necessarily used or obtained for use.</p> <p>Where the case is one where no application is necessary to the court for judgment upon the complaint if no answer had been served, the plaintiff, on decision of demurrer, is only entitled to fifteen dollars for costs before notice of trial.</p> <p>Where the plaintiff fails to make the indorsement upon the summons as required by section 419 of the Oode of Civil Procedure, he is only entitled to fifteen dollars costs before notice of trial</p>

'On the 17th day of November, 1880, the commissioners of •estimate and assessment presented their report to the court for confirmation. Assessments^ for benefit were levied upon the property adjacent to the streets and upon the city.

This is an appeal from an order and judgment in an action for an absolute divorce on the ground of adultery. The referee appointed by the court to hear and determine, found for the plaintiff. Upon a motion made to confirm the referee’s report the court dismissed the complaint, and- judgment of dismissal was entered accordingly, with costs.

<p>Beferee— When ord&r of reference made upon consent will be vacated and a new referee substituted.</p> <p>Where two causes against the same defendants were referred by consent and the referee had heard and.determined the first in favor of the plaintiff, a number of questions involved in the second cause being also involved in the first case; on motion by defendants:</p> <p>Held, that the order of reference should bo vacated and a new referee •» substituted.</p>

<p>Practice—Action for accounting— Security for costs— When required, under section 3271 of Code of Civil Procedure, of plaintiff suing executors.</p> <p>A plaintiff suing executors will, under section 3271 of the Code of Civil Procedure, he required to give security for costs where it is made to appear by affidavit that he is pecuniarily irresponsible and unable for that reason to pay costs, although the action is concededly brought in good faith.</p>

<p>Sheriff—When liable to an action by the real owners of personal property for levying upon the same on an execution .against a person in whose possession the property is, under an agreement and by permission of the real owners— Such action cannot be maintained without a demand.</p> <p>Under a judgment recovered by the plaintiffs against T., and execution issued thereon, the plaintiffs had purchased the property in question, which was household furniture. They also, in the same manner, acquired title to goods in a store which had previous to that time been owned and conducted by T. From the time of the purchase T. had remained in possession of the goods (the household furniture) under an agreement by which he carried on the old business of his in the store for the benefit of the plaintiffs as their agent or clerk, at á salary, with the right to retain the furniture in his own house for the use of himself and family. The defendant, as sheriff of Ulster county, had, at the time this action was commenced, under an execution issued upon a judgment</p> <p>• duly recovered in this court against said T., made a levy upon the furniture then in possession of T., and used by him in the dwelling-house which he occupied, but had not removed the same nor in any manner •interfered therewith further than to make the levy. No demand of the possession of the property was made of the defendant prior to the commencement of this action:</p> <p>Held, that, although plaintiffs could maintain an action to recover the possession of the property, the action could not be maintained without a demand. The mere levy upon the goods is not sufficient in itself to maintain the action.</p> <p>The agreement under which T. held the property gave him no right to hold the same for any specified or definite period. He had no leviable interest whatever therein He was but the servant or clerk of the plaintiffs. holding the property for them during their pleasure. The plaintiffs, therefore, were not only the owners, but were entitled to the immediate possession of the property at the time of the levy.</p> <p>When a person is in possession of and exercising acts of ownership over personal property of another, the owner cannot, until demand or notice to the sheriff, maintain an action against him for levying upon and taking it under process against the person in possession.</p>

Edward Livermore, Henry Clews and J. Livermore, stockbrokers, brought a suit in April, 1877, in the court of common pleas, against Robert H. Berdell, formerly president of the Erie Railway Company, to recover a balance of account, as his broker, upon stock transactions between November, 1876, and April, 1877.

<p>Replevin— Ekrmor—jEffect of section 1736 of the Code of Civil Procedure.</p> <p>Section 1736 of the Code of Civil Procedure, continuing a¿L action of replevin, notwithstanding the death of either party, in favor of or against his executors or administrators, applies only to actions in which the sole defendant was living on September 1,1880, and. is not retroactive.</p>

<p> Wid—Effect of a devise of real estate to wife for life, and, direction that upon h&r death it be sold and distributed among his children or their legal representatives—Who to be included in the distribution. </p> <p>Where the testator devised real estate to his wife for life, and directed that upon her death it should be sold and the proceeds distributed among his three children or their legal representatives, the interest vested in each of them as personal estate, and the share of a daughter who died before and that of a son who died after the widow, passed to their next of kin, so that, although it is plain the testator had no intention the children of the half blood should receive any portion of his estate, they must be-included in the distribution.</p>

The plaintiff complains of the defendant as follows: 1. The plaintiff is and for many years past he has, as a member of a business firm, been engaged in the business of refining sugar in and near the city of Hew York. 2.

<p>This was an action brought to test the title to the office of supervisor of the first ward of the city of Albany. At the charter election held in April, 1879, the defendant was duly elected to such office and entered upon its duties. At the charter election held in May, 1880, the relator Hassell received 539 votes and the defendant 519 votes for supervisor of said ward. The defendant afterwards continued to discharge the duties of supervisor, under the claim that he was elected for two years at the election held in April, 1879. The relator claimed that the defendant held office for one year only, and that chapter 253 of the Laws of 1878, extending the term to two years, was unconstitutional.</p>

Defendants were the owners of a steamboat known as the “William J. Booth.” Plaintiff shipped upon the barge “Warren” a cargo of coal, to be carried by said barge from Hoboken, Hew Jersey, to Hewtown'Creek, Long Island, at a certain agreed rate of freight, to be paid by plaintiff to the owners of the barge.

<p>New York (city of) — Powers of trustees of New Yoi'k Oollege— Their vouchers conclusive on the comptroller of the city — Finance depa/rtment will he compelled hy mandamus to audit them.</p> <p>The College of the City of New York is a distinct corporation having no dependence on the city.</p> <p>The finance department of the city is merely the custodian of the funds raised by taxation for the college.</p> <p>The vouchers of the college trustees are conclusive on the finance department.</p> <p>Mandamus will lie against the comptroller to compel the audit of such vouchers.</p>

Appeal 'by defendant John Lee from a judgment entered against him on the report of a referee in favor of the defendant John P. Sunderland, as the assignee of the claim in suit.

This is an appeal from a judgment entered March 14, 1878, on the decision of justice Van Vobst, dismissing the complaint, which prayed an injunction restraining defendant from increasing the height of a party wall (See 54 How., 338). An interlocutory injunction had been issued under an order granted by justice Westbkook (see 53 How., 311), an appeal from which is now pending. The cause was tried at a special term in November, 1877.

Motioít to dissolve injuntion. David Snyder died August 2, 1880, in the asylum for the insane in ITtica, of which he was then an inmate. The defendant, William E. Snyder, is his only son and heir, being the child of his first marriage. The deceased formerly resided in Glastonbury, Connecticut, was married there in 1840, and continued to reside there until 1869.

<p>Certiorari to review summary proceedings under the landlord and tenant act.</p>

Motion to restrain a receiver appointed by the marine court from selling cartain market stands, upon the ground, among others, that the judgment in the action in which the receiver had been appointed in supplementary proceedings had been satisfied.

<p> New York (city of)—Police board—their power as to dismissal of a member of the force. </p> <p>The relator, a policeman, having been convicted by the police hoard upon a charge of receiving sums of money on several occasions from the keepers of a house of prostitution as an inducement for allowing certain privileges, was dismissed from the force:</p> <p>Held, that under the law of 1873, giving the hoard power to dismiss any member on his conviction of a legal offense or neglect of duty, or any conduct injurious to the public welfare, or immoral conduct or conduct unbecoming an officer, though the relator could have been convicted and punished for the ofíense, yet it was not necessary to await a conviction in a court of criminal jurisdiction before instituting the inquiry.</p> <p>There being evidence to uphold the judgment of the board, and no rule of law having been violated, the judgment should not be disturbed.</p>

<p>Substitution of attorneys — when and on what terms ordered—Extent of attorney’s lien.</p> <p>The attorney has a lien upon the papers in the suit, which cannot be divested without payment, but he has no lien upon the client, and cannot prevent him from employing another attorney to represent him.</p> <p>Where motion was made by defendants for substitution of a new attorney:</p> <p>Held, that the motion should be granted ; but if the defendants desire the papers in the possession of their attorney they must first discharge his lien. If this relief is not insisted upon the order for substitution must provide that the taxable costs in the action to the present time (if collected upon a favorable termination of the action) be paid to the present attorney of the defendants, to whom they equitably belong.</p>

<p>Railroads—Right of company to limit time in which ticket shall he used— Sow far passenger hound by such Imitation.</p> <p>The holder of a limited ticket, bearing an agreement upon its face that it was good only between the date of its purchase and the end of the day designated by the punch mark on its margin, is not entitled to use such ticket after the expiration of such date, if it be the fault of the passenger that the ticket has expired before he has arrived at his distinction.</p>

<p>Demurrer to complaint.</p>

<p>This is an appeal from an order at special teim denying plaintiffs’ motion for a further bill of particulars. The learned justice admitted plaintiffs’ right to a bill of particulars of defendant’s counter-claim in the opinion, hut denied the right in the order, as he subsequently settled it. This reconsideration and change of his decision-was because defendant’s counsel cited Hoff agt. Pentz (1 Abb. N. C., 288). Plaintiff’s appeal is from “ each and every part of said order.” The following clause in said order, to wit, “ and it appearing, and not being controverted, that the bill of particulars already served contains all the items of the account stated alleged as a counter-claim,” is a recital which the papers in the case clearly controvert. The action is brought to compel the defendants to account to plaintiffs for the profits on certain extensive purchases and sales of lard which defendants, as commission brokers, made for plaintiffs and others, from August 1, 1879, to January 16, 1880, under an agreement signed by all the defendants, who were to share the profits and losses according to prescribed rules of division. The defendants Kent and Poole were originally parties to that agreement, but subsequently withdrew therefrom and acted solely in the relation of brokers to the plaintiffs and the other defendants. Defendants have refused to furnish any accounts to plaintiffs whatever, and judgment is asked for an accounting. Defendants Kent and Poole, in their answer, admit the agreement, but deny every other allegation in the complaint, “ except that large quantities of lard were bought and sold under said agreement.” They also claim that plaintiffs were not entitled to an accounting when the action was begun. They further allege that “ after the beginning of this action ” defendants rendered to plaintiffs an account in which -plaintiffs’ firm was found justly indebted to the said firm of E. A. Kent & Company in a large sum, to wit, §11,586.29, which sum said plaintiffs then and there promised and agreed to pay said E. A. Kent & Company.” Plaintiffs’ reply denies any accounting whatever. The affidavit of plaintiffs show that they had been trying, since October first, to get some information of these purchases and sales, but they could obtain nothing more definite than “ Ex. B.” The affidavit further states the series of motions, discontinuances, frivolous demurrers and other tactics whereby defendants have postponed giving plaintiffs this information. The affidavit further shows that this information was sought by examining defend-' ant before trial. That after defendant had secured a further delay by appeal, he, by his evasive answers, still conceals this information from the plaintiffs. By the defendants’ examination, it appears that they profess to be unable to give this information without their books; that they refused to look at their books to get the information; they refused to bring them into court under subpoena; that some of their books were in Chicago; that even if they did look at the books, their knowledge of practical" book-keeping was so limited that they couldn’t give-the information. Defendant in an affidavit read in opposition to plaintiff’s demand for particulars says: “ That plaintiff’s proportionate share is correctly set forth in the £ bill of particulars as served.’ “ Exhibit B.” But this bill of particulars which he calls an account stated, was rendered after the commencement of this action, and contains no items or particulars whatsoever. His counsel evidently served it in the form of an account stated, so as to invoke the authority of Hoff agt. Pentz, to defeat plaintiffs in obtaining a bill of particulars. The allegation by defendant in his answer of an account stated and settled, and that plaintiff promised to pay the balance, was reckless and unscrupulous in the extreme. For he admits that he did not serve it till after the action was begun, in which he was charged with gross fraud. His attorney’s object in securing such an answer from defendant appears by the following clause in his affidavit: “ I believe the bill of particulars of defendant’s counter-claim is good and sufficient in law, being a copy of an account stated, which he pleads,” and he quotes Hoff agt. Pentz in support of his position. These affidavits are substantially the same as were before this Court on defendant’s appeal from the order requiring him to be examined before trial. In the opinion of Ch. J. Davis, in affirming that order, he used the following language (59 How. Pr., 325): “ The plaintiffs show to our satisfaction that they could not get such an account of the transactions of the defendants, alleged to have been made on their behalf, as they were clearly entitled to. A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold; and where he withholds the fullest information on that subject, the right to examination before trial in an action brought to recover alleged profits, or to adjust the unsettled accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of the examination of the defendant’s books, &c. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the court below as it does this court.” The perusal of defendant’s testimony taken under that order will, we think, strengthen and confirm the suspicions of this court as. to the disingenuousness of defendants.</p>

<p>Raitroads—Right of defendants to use steam power upon Atlantic avenue in . the city of Brooklyn— Constitutional lam.</p> <p>The Long Island Railroad Company was incorporated April 24, 1834 (chap. 178, Laws of 1834), and by virtue of an act of the legislature, passed April 2, 1836 (chap. 94, Laws of 1836), it, on the first day of December, 1836, leased a road belonging to the Brooklyn and Jamaica Railroad Company, a corporation formed under chapter 256 of Laws of 1834. Until the consummation of the proceedings had under- and in pursuance of chapter 484 of Laws of 1859, the Brooklyn and Jamaica railroad and its lessee, the Long Island Railroad Company, had a right to operate a railroad by steam over and upon lands, the principal part , of which is now Atlantic avenue, in the city of Brooklyn. When the act of 1859 was passed, the defendant, “ The Long Island Railroad Company,” reached the East river by a tunnel under the surface of Atlantic avenue. The act of 1859 (chap. 484, Laws of 1859) was entitled “An act to provide for the closing of the entrances of the tunnel of the Long Island Railroad Company in the city of Brooklyn, and restoring said street to its proper grade, and for the relinquishment by said company of its right to use steam power within said city.” The provisions of this act were substantially carried out. The agreement of the commissioners appointed under the act of 1859, providing for the closing of the tunnel and the surrender of the right to use steam upon the avenue, was with the Brooklyn and Jamaica Railroad Company, who, as the lease originally executed by them to the Long Island Railroad had been surrendered, are styled therein “ the assignees of the Long Island Railroad Company, within the true meaning and intent of both the said acts,” to wit, the said act of 1859, and another relating to the same subject, passed March 23, 1860. The contract required the tunnel to be closed, and the various things done which the law of 1859 enjoined, and the Brooklyn and Jamaica Railroad Company relinquished “ its right to use steam within the corporation limits of the city of Brooklyn,” and agreed that “ steam power shall not be used or permitted upon its road, or any part thereof, within the limits of the city of Brooklyn,” after the happening of an event specified in the agreement. To this contract the Long Island Railroad assented, “so far as it. has any right so to do, and so far as it has any interest therein.” The compensation which the Brooklyn and Jamaica Railroad Company received under this agreement was $125,000, which was levied upon a district prescribed by the said act of 1859, and which was supposed to be specially benefited by the abandonment of the use of steam power upon Atlantic avenue. On April 5, 1855, the Brooklyn and Jamaica Railroad Company executed to Samuel Willetts, Robert Ray and Alexander Hamilton, Jr., as trustees, a mortgage to secure its bonds to the amount of $100,000. This mortgage covered all its property, including that leased to the Long Island Railroad Company. On the 21st of March, 1872, a decree of sale (in a suit to foreclose this mortgage) was made, such sale to be “ subject to a certain agreement or release made between the Brooklyn and Jamaica Railroad and the Long Island Railroad Company, dated April, 1860 ” (it being an agreement between those two companies, and not the one between the Brooklyn and Jamaica Railroad Company and the commissioners appointed under the act of 1859), “ and subject also to the provisions of the act of 1859,” and subject also to the provisions of a certain other act passed'April 16, 1860, entitled “An act authorizing the Brooklyn Central and the Brooklyn and Jamaica Railroad Companies to consolidate, and continue their roads so far as such provisions of said acts relate to the closing of the tunnel in Atlantic street, in the city of Brooklyn, and the relinquishment of steam power within the limits of said city.” Under this decree of foreclosure the property of the Brooklyn and Jamaica Railroad was sold, and one William Richardson became the purchaser, the property being bought subject to the condition contained in the decree. On the 29th day of April, 1872, in pursuance of the act, entitled “An act to authorize the formation of railroad corporations and to regulate the same,” passed April 2, 1850, a railroad corporation was formed under the name of “ The Atlantic Avenue Railroad Company of Brooklyn.” To this corporation, on the 28th day of February, 1874, William Richardson, the purchaser at the foreclosure sale, conveyed the property bought thereat, and which in the deed is described as “all and singular the railroad of the Brooklyn and Jamaica Railroad Company, extending from its commencement at the ferry at the foot of Atlantic street, in the city of Brooklyn, in Kings county, to its termination in the village and town of Jamaica, in the county of Queens, including all its appendages and the depot lots in the village of Bedford, and the right to construct branches to Flushing or Flatbush, as secured to the said The Brooklyn and Jamaica Railroad Company by their act of incorporation.” On the 26th of March, 1877, the Atlantic Avenue Railroad Company leased to the Long Island Railroad Company, “its successors and assigns, all the railroad of the party of the first part, extending from its eastern terminus in the village of Jamaica, westward to the city line of the city of Brooklyn in Atlantic avenue, and thence along said avenue to a point in Atlantic” avenue in the city of Brooklyn, 250 feet east of the easterly line of Elatbush avenue, said 250 feet to be measured along a line in the centre of Atlantic avenue,” and also sundry other property as is in the lease specially provided. By chapter 187 of the Laws of 1876, it was declared “it shall be lawful for the Atlantic Avenue Railroad Company of Brooklyn, and for the Long Island Railroad Company, as lessee from the Atlantic Avenue Railroad Company of Brooklyn, of that part of the railroad of said Atlantic Railroad Company which extends from the junction of Atlantic and Elatbush avenues, in the city of Brooklyn, eastwardly along said Atlantic avenue, to the city line, to run cars over said railroad, upon Atlantic avenue, from the city line of Brooklyn to Elatbush avenue, by steam' power, subject to such rules and regulations as to rate of speed and public safety “ as from time to time the common council of the city of Brooklyn may prescribe.” Under this law the defendants were, when this suit was commenced, adapting and changing the horse railroad track to that of a steam railway, and are now propelling cars thereon by steam. Against this the plaintiffs ask an injunction, because, as they allege, by the acts closing the Atlantic tunnel, and the agreements thereunder, the defendant, the Long Island Railroad Company, has agreed never to run cars propelled by steam over such route, and that the property was purchased at mortgage foreclosure sale charged with such a prohibition ; and also because, as is claimed, the act of 1876 is unconstitutional:</p> <p>Held, first, that the Long Island Railroad Company has not made any agreement or promise obligating itself not to use steam either upon Atlantic avenue or elsewhere.</p> <p>Second. As the decree in the foreclosure suit provided that the sale was subject to the provisions of the agreement between the two companies, and as such agreement only obligated the Brooklyn and Jamaica Railroad Company to the Long Island Railroad Company not to use steam cars upon the avenue, which agreement was for its own benefit, and as it had not bound itself to any one in the same direction, it follows that when the Long Island Railroad Company acquired title to the roadway there was no prohibition as to them preventing a legislative license for the use of steam power thereon. The Long Island Railroad Company cannot be bound by the provision in the mortgage foreclosure decree, because the contract was to and with it, and not by it.</p> <p>TMrd. As to the other exceptions and reservations contained in the decree of foreclosure—relating to the acts under which the tunnel was closed—nothing therein contained prevented these defendants, or either of them, from acquiring a future right to use steam upon the avenue. The surrender of a right existing by its owner is no covenant against a future acquirement thereof, any more than a sale of present interest in any property or business is an agreement against a future repurchase.</p> <p>Fourth. That no contract whatever existed by force of the act of 1859 preventing the state in the°future from conferring the right to use steam on Atlantic avenue, Brooklyn, upon the defendants. Nor can one legislature by a law deprive a succeeding one, in a matter of public policy, from changing or altering the enactment.</p> <p>Fifth. That no agreement has been made either with the people, the city of Brooklyn or the owners of the property in the district taxed under the act of 1859, which will justify the maintenance of this action.</p> <p>Sixth. That a railroad corporation cannot, by contract, when no statute authorizes it so to do, bind itself to a particular mode of propelling power, regardless of the interests of the people, which may require it to adopt a different one.</p> <p>Seventh. The statute (Laws of 1876, chap. 187) under which the defendants claim the right to use steam upon the avenue, is not obnoxious to section 1 of article 14 of the Constitution of the United States, declaring, among other things, that no state can “ deprive any person of life, liberty or propm'ty without due process of law,” nor to section 6 of article 1 of the Constitution of this state, which likewise provides that “noperson shall * * * be deprived of life, liberty or property without due process of law.”</p> <p>Eighth. That when, as against the owners of the land, the right to operate a railroad has been acquired, the mode of such use, whether by steamor otherwise, is a matter within legislative control, and in regulating such use, no right of property is infringed upon, to which the above cited provisions from the federal and state Constitutions are applicable.</p> <p>Ninth. That the act (Lems of 1876, chap. 187) is not unconstitutional under section 18 of article 8 of the Constitution, which prohibits the legislature from passing " a private or local bill * * * granting to any corporation, association or individual the right to lay down railroad tracks;” or “granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.”</p> <p>The act of 1876 confers “no right to laydown railroad tracks.” The privilege so to do was one already enjoyed by both defendants as already existing railroad corporations. The act gave legislative permission to use steam as a motive power on railroad tracks already constructed, the right to relay and repair which was an incident to the original grant. Such a legislative permission to an existing corporation is not covered by the above constitutional provision.</p> <p>Nor do the defendants obtain under the law an “ exclusive privilege ” or “ franchise. ” The prohibition is to a grant which in words is exclusive. It may be true that conferring upon A. authority to do an act, may practically prohibit B. from doing the same thing, because the latter may be unwilling to compete with the .former; but so long as B. is left free to act, and nothing has been done which, if valid, would enable A. to enjoin B., because he (A.) has an exclusive right, the provision in the Constitution is not violated.</p> <p>Tenth. That if there is a defect in the title to any of the land occupied by the defendants, such defect does not justify this action, but each owner of the land wrongfully held must seek his remedy by suit brought in his own name.</p>

<p>Appeal from an order of special term denying motion to set aside the service of the summons in this action.</p>

<p>Will — construction of— Extrinsic proof to explain .ambiguity.</p> <p>The testatrix devised two lots and a gore “ on the southerly side of Forty-ninth street, near Eighth avenue.” Extrinsic evidence upon the trial of the action for construction of the will showed that testatrix owned no property .on Forty-ninth street; but did own property on One Hundred and Forty-ninth street answering fully, in other respects, the terms of the devise. Extrinsic proof showed further that persons living above One Hundredth street drop the One Hundred and designate the lot by the remaining figures :</p> <p>Held, that the devisee under the will takes the two lots in question.</p> <p>It is entirely proper to resort to extrinsic proof to explain a latent ambiguity of this nature as to the subject of the devise, and to make clear the intention of the testatrix.</p>

<p>Mortgage—Decree of sale permitting purchaser to retain out of purchase money the amount of twees—Motion to deduet amount of taxes from judgment for deficiency should home been made before sale— Party assuming payment of bond and mortgage becomes principal debtor and is bound to see that the taxes are paid.</p> <p>The mortgage in suit, which contains no covenant to pay taxes, was executed by defendant Doellner in 1872. He sold the premises in 1873 to defendant Guggenheimer, who assumed payment of the mortgage. In 1874, Guggenheimer sold the property subject to the mortgage. The judgment of foreclosure permitted the purchaser to retain out of the purchase money the amount of all taxes and assessments which, at the time of the sale, were a lien on the premises, and $578 were deducted to discharge taxes due upon the premises for 1877 and 1878:</p> <p>Meld, that a motion by Guggenheimer to deduct the $578 from the judgment against him for deficiency, comes too late after sale under the decree; and that at any rate Guggenheimer was liable for the deficiency after deducting such taxes from thfe purchaser’s bid.</p>

Proceedings for forcible entry and detainer were instituted under the new Code to recover the possession of two valuable lots of land on Fifth avenue,' near Ninetieth 'street, in the city of New York, with the buildings thereon erected.

<p> Negligence—Parent and. child. </p> <p>A parent is not liable for the trespasses or negligence of an infant child.</p>

<p>Removal of causes into United States courts—Chap. 137 of 1875 (United States statutes)—when motion too late—AU the defendants or all the plain* tiffs must he citizens of different states.</p> <p>Under the provisions of the act of congress {chap. 137 of 1875), providing' for the removal of causes into the United States courts, “before or at the term at which said cause could be first tried, and before the trial thereof,” it is too late to make such application after a demurrer has been interposed and duly argued and decided.</p> <p>In all the states there is, by law or rule, a term, i. e., a term at which a cause may for the first time be called for trial This is the term at which, within the meaning of the law, the cause could first be tried, and, therefore, is the term at or before which the petition for the removal must be filed.</p> <p>AU the persons constituting “theparty” on one side must be citizens of different states from those on the other side.</p> <p>To warrant a removal under the provisions of the act of 1875, covering suits between, citizens of different States, if any person who is a necessary plaintiff and any person •who is a necessa/ry defendant a/t'e citizens of the same state, there is no right of removal. All the defendants compose the “party” who may ask for a removal, and they must all be other states’ citizens.</p> <p>The averments of the petition are not conclusive on the state courts. The court has the power and the right to examine other papers than the mere affidavit of the petitioner, to ascertain whether the statute permitting the remonal of the cause has been complied with</p>

<p>Office and officer— Quo warranto to try title—What acts and promises of a candidate for office will invalidate his right thereto — Office not necessarily to he given to the qualified person homing the next highest number of votes.</p> <p>At a general election held in and for Sullivan county, the relator and the defendant were the two and only two candidates to be voted for in that county for the office of county judge. The whole number of votes cast was 6,179; of which defendant received 3,211, and the relator received 2,947. The certificate of election was given to the defendant by the board of county canvassers, and on January 1, 1879, he took possession of the office, having first taken the oath required by the Constitution and filed the necessary bond. The term of office was six years, and the salary as fixed by law was $2,500 per annum. The defendant after he became a candidate for the office, and during the whole canvass, down to the day of election, published and circulated throughout the county a promise addressed to the electors to this effect: “ That if elected to the office of county judge I will pledge myself to take only $1,200 a year for my services; that I will pay out of my own pocket the coal necessary to heat my law office; that I will pay for all stationery and letter heads, and will see that persons needing blanks pay for them themselves, and if a member of assembly can be elected who will have the law amended reducing the salary to $1,200,1 will guarantee to waive all constitutional objections and never question its validity:”</p> <p>Held, that this was sufficient to invalidate the defendant’s right to the office he now holds.</p> <p>The promises and pledges of the defendant were made to the taxpayers and electors generally, and were of a character, within the fair spirit and meaning of the acts, impliedly prohibited by article 12, Constitution of this state.</p> <p>It is not necessary that there should be evidence from any witness who voted at the election for defendant, that he did so in consequence of such pledges and promises. The illegal promises to induce votes having been affirmatively shown to have been made to every elector, more particularly to every taxpaying elector, the onus of showing the numbers of votes that were influenced thereby, should devolve upon the defendant, and it should devolve upon him to show the number of votes uninfluenced by such promises he did actually receive.</p> <p>An offer of a bribe'is criminal, and this is so whether the offer is accepted or not. It disfranchises the party making the offer as well as the party influenced thereby:</p> <p>Held, also, that the relator is not entitled to the office. He did not receive a majority of the votes of the legal electors who at that election cast" ballots for the office of county judge, and consequently was not elected.</p>

<p>The action was commenced against the parties above named. The plaintiff alleged that on May 1,1874, and at all times thereafter, it was seized and possessed of certain premises known as No. 12 Pine street, in the city of New York, describing the same by appropriate metes and boundaries, upon part of which a substantial structure had been erected, constituting a wing or addition to what was known as the Equitable Life Building for the use of which a proper supply of light and air were necessary. That such structure was set back from the line of ownership and possession of the plaintiff in the rear of the premises No. 17 Nassau street, owned and in possession of the defendants.</p> <p>That the defendants, upon motives of malice and extortion, have erected and now maintain partly upon their own premises and partly upon the premises of the plaintiff, two tall ■brick stacks leaning directly against plaintiff’s wall and the windows therein, effectually and absolutely blocking up and shutting out all air and light therefrom. That such stacks are of no utility whatever, except for purposes of malicious annoyance of the plaintiff. That they are intended to be and are a permanent encroachment and appropriation of plaintiff’s land to its great injury and depreciation in value. That such injury is not entirely susceptible of pecuniary compensation.</p> <p>The plaintiff asks for an injunction restraining the use and continuance of said stacks, the removal thereof and damages for the injury sustained by their erection.</p> <p>The defendants appeared and answered and the cause came on for trial, when it appeared that the defendants Alfred Schermerhorn and Alfred W. Craven had died ad interim, and also that John Egmont Schermerhorn' had been duly appointed trustee of Gustave De Maearty in place of. said Schermerhorn and Craven, deceased. An order was made November 20, 1879, that the successors in interest of the parties deceased be made parties to this action, and that plaintiff have leave to issue a supplemental summons, and to make and file a supplemental complaint reviving the action. This has been done and demurrers are now interposed to the supplemental complaint:</p> <p>First. That two causes of action have been improperly united therein.</p> <p>Second. That the complaint does not state facts sufficient to constitute a cause of action.</p>

The complaint alleged that the defendants executed a bond to the plaintiff, dated FTovember 23, 1875, for $7,500, guaranteeing the payment of all indebtedness that might he incurred by one H. L. Wilcox to the plaintiff, and that the defendant, Frances L. Fuller in said bond, expressly charged her separate estate with the payment. The complaint then set out breaches of the bond and demanded judgment.

The plaintiff was employed as an attendant on the supreme court in 1864, and continued to hold such position till June 1, 1872. His compensation was fixed at $1,200 per annum, and he has been paid for his services except for the month of May, 1872, and this action was brought to recover the sum of $100.

<p>Attorney’s lien— Costs— Code of Ciml Procedure, section 66.</p> <p>The amendment to section 66 of the Code of Civil Procedure, passed in 1879, gives to the attorney of record, from the commencement of an action or the service of an answer containing a counter-claim, a lien upon his client’s cause of action or counter-claim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof, in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after the judgment.</p> <p>But no new remedy is provided for the enforcement of the lien, and, in order to make it available in the case of a settlement before judgment, the attorney, while he need no longer prove fraud or collusion, must still go on with the litigation until judgment, which is to he perfected for cost only.</p>

In this action five witnesses were examined before trial, under the provisions of section 810 of the Code of Civil Procedure. On taxation of costs the clerk taxed fifty dollars for the examination of the five witnesses, taken before trial, on behalf of plaintiff. An appeal was taken from the clerk’s taxation.

In this case an attachment was granted on the ground that defendant had assigned and disposed of his property with intent to defraud his creditors. Defendant moved to vacate same on plaintiff's papers, on the ground of the alleged insufficiency of the affidavits. From the order denying this motion the present appeal is taken.

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

<p>Shipping — Shipowners’ liability for loss—Act of congress, 1851 — 9 Statutes at Lange, 635 — Limitation of liability.</p> <p>Where the loss is caused by the owners’ design or neglect, or occurs with his privity or knowledge, a plaintiff may proceed in the state courts, notwithstanding the pendency of proceedings in the United States district court; but he proceeds at the risk of wholly failing in the action if he should fail to bring his case within one of the exceptions.</p>

<p>Executor—right to caU his co-executor to account in a suit in equity—Foreign executor amenable to like authority— Complaint—Parties—Demurrer.</p> <p>The plaintiff, as surviving executor of George J. Price, sues defendant individually, and as sole acting executor of his father (who with plaintiff was co-executor of said Price), for an accounting and damages and other relief, alleging that defendant’s testator, who, as such co-executor, took the exclusive control and management of Price’s estate, committed various wrongful acts, set forth, in relation thereto, imperiling it; charging misconduct in relation to said estate on the part of defendant since the death of his father, the books and vouchers in relation to said estate having then come into his possession; and setting up that the widow and children of plaintiff’s testator, to whom said testator devised the income of his estate during his children’s minority, the principal to be then paid to them, are still living and of full age:</p> <p>Held, overruling demurrer to the complaint, that an executor not only has the right to call his co-executor to account in a suit in equity, but a foreign executor may be held amenable to like authority to prevent either a complete or partial failure of justice, and to maintain and enforce a trust; defendant being accountable for his testator’s misconduct to the r extent of the latter’s assets in his hands.</p> <p>The complaint states a sufficient cause of action under section 484 of the Code.</p> <p>The case not being one for a final accounting, the widow and devisees of Price are not necessary parties, and if necessary they may be brought in.</p> <p>As the causes of action stated in the complaint all arise out of one transaction— the alleged breach of trust of defendant’s testator—they have not been improperly united.</p>

<p> Sheriff—entitled to his poundage for taking a defendant into custody on an execution against the person, although the execution be not paid. </p> <p>A sheriff who has taken a defendant into custody on an execution against the person, is entitled to his poundage, although the execution he not in fact paid.</p> <p>Such defendant is not entitled to his discharge upon plaintiff’s consent until either he or the plaintiff shall have paid such poundage.</p>