Volume 61 — Howard's Practice Reports

<p>Attorney’s lien—Set-off of judgment— Code of Civil Procedure, section 66.</p> <p>The plaintiff, having recovered judgment in an action brought by him against defendant Curry, and having been beaten in another action against Curry, with judgment against him for costs, brought this action to compel a set-off of one judgment against the other, the first with interest, being large enough to extinguish the second; and Curry’s attorneys thereupon interposing their lien:</p> <p>Held, that the statutes regulating set-offs, under which it has been decided that in an action like the present the lien of attorneys must yield to the right of set-off, having been repealed, section 66 of the Code may be invoked by the attorneys to uphold their lien.</p>

<p>Motion in arrest of judgment.</p>

Application in behalf of the prisoner for a certificate and certiora/ri to “stay judgment” on the indictment and conviction “.until the decision of the supreme court shall be had upon ” the “ exceptions ” taken during the trial.

<p>Motion by prisoner’s counsel for a stay of proceedings, with a writ of error.</p>

<p> Removal of cause—Power of United States court tormna/nd cause—When such power to he exercised —When the allegations of the removing pa/rty in the petition must prevail. </p> <p>Under the provision of section 5 of the act of March 3, 1875 (18 U. S. Statutes at la/rge, 473), there is no doubt of the power of this court to remand a cause at any time before a formal trial of the plenary issues in it, whenever it appears that the court has no jurisdiction of the suit.</p> <p>But the provisions do not require the court to remand the suit unless it appears that the suit does not involve a controversy properly within its j mis diction. If the suit appears, on the removal papers and the prior record taken together to be a suit properly removable, it is not to be remanded if the question arises solely on those papers. It is the practice of the courts of the United States under the act of 1875, to try the question of jurisdiction on a motion to remand, and before the plenary trial.</p> <p>Eor the purposes of the transfer of a cause, the petition for removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the court must act in declaring the law upon the question it presents. The record in the state court, which includes the petition for removal, should be in such a condition when the removal takes place as to show jurisdiction in the court to which it goes.-</p> <p>Where an action is brought by A. in a state court against B. and 0. to obtain an adjudication that a contract made between A. and B. has been rescinded, and a reconveyance to A. of a certain play and a certain invention, which play and invention had been assigned to B., and for an accounting and an injunction to restrain B. from exhibiting said play or using or assigning said invention; and where the complaint states 0. is made defendant by reason of his having obtained from B. an interest in said property and assets, and by reason of his having or claiming such interest adverse to the plaintiff :</p> <p>Held, denying a motion to remand the case after its removal to this court, upon petition by B., before any answer was put in by either defendant, such petition setting forth that plaintiff is a citizen of the state of Hew York, while petitioner is a citizen of Connecticut, declaring that-the aliegallons in the complaint as to C. are untrue, that the record before the court shows jurisdiction, and that the allegations of the removing party in the petition must, at this stage of the case, prevail.</p>

<p> Appeal ly defendant from order of marine cou/rt general term, setting aside verdict as against the weight of evidence—Result of—Danger of appealing from such order. </p> <p>Where, an appeal is taken by defendant, upon stipulation, from an order of the general term of the marine court, setting aside a verdict as against the weight of evidence:</p> <p>Held, that there being a controverted question of fact involved to go to the jury, judgment absolute must be given against the defendant.</p> <p>The result of .this appeal shows the danger of . appealing from such an order.</p>

<p> Parol evidence—Varying or modifying a written agreement—When to he admitted. </p> <p>This action was brought to recover $150, rent due for the use and occupation of a cheese factory, under a written lease which provided for the use and occupation by the defendant, and in consideration thereof he promised to pay the installment of rent which is the- subject of the action. The lease is silent upon the subject of repairs; and contains no agreement on the part of the plaintiff whatever upon that subject. Defendant set up a counter-claim as a defense, alleging in substance that at the time of the execution of the lease and in consideration thereof the plaintiff promised and agreed to and with the defendant to make certain repairs, and that pursuant to said agreement plaintiff did commence such repairs but did not complete them, and that defendant completed the said repairs that the plaintiff promised and agreed, but neglected so tó do, to defendant’s damage of $200. Defendant offered to prove that an agreement distinct from, but collateral, to the lease offered and received in evidence, was made by and between the parties to this action respecting certain repairs that were to be made in and about the cheese factory leased to this defendant, which was rejected : 'Held, that the evidence should have been received.</p> <p>'The rule prohibiting the reception of parol evidence, varying or modifying a written agreement, does not apply to a collateral undertaldng. Such fact is always open to inquiry, and may be proved by parol.</p>

<p>Beference—to ascertain the damages caused by an injunction — When tobe had—What is á final determination, that plaintiff was not entitled to such injunction.</p> <p>A reference to ascertain the damages caused by an injunction can only he had when there has been a "final determination that the plaintiff was not entitled to such injunction, or something equivalent to such a determination.</p> <p>That the injunction was dissolved on motion, pending the action, is not enough, as that.may have been done for various reasons in no way affecting the merits, and yet the court might, at the final hearing, decide that the defendant ought to be enjoined.</p> <p>Where by supplemental answer, the defendants were allowed by the court to make so sweeping a change in the issue as to aver a fact which occurred after the injunction was dissolved, and in effect not only changed the plaintiff’s right to the relief, sought, but practically deprived ' him of it and defeated the object of the action, or rendered it of no value, and as a condition allowed the plaintiff to discontinue without costs, which he did:</p> <p>Held, that there had not been a final determination by the court, or what was equivalent to one, that the plaintiff was not entitled to the injunction when granted, and that the defendants were not entitled to a reference.</p> <p>Where a like supplemental answer had been allowed and served, and the action was thereafter ended by what was, in fact, a discontinuance by ' the consent of the parties and so intended, although it took the form.' of a dismissal of the complaint:</p> <p>Held, that the same principle should control as if formally discontinued by consent.</p>

<p>Demurrer to complaint.</p>

<p>Taxation of costs on appeal from district courts.</p>

<p> Will—construction of—Half Wood sisters entitled to share in distribution. </p> <p>Where a testator directs the payment of a part of his estate, with its accumulations, to a granddaughter at her majority, and in case of her death, before becoming of age without issue, “ to her then living brother and sisters and the issue of any deceased- brother or sister,” and said granddaughter died unmarried before attaining her majority, leaving her surviving two sisters and brother of the whole blood and two sisters of the half blood :</p> <p>Held, that the two sisters of the half blood are entitled to a distributive share.</p>

<p>The action is brought to recover damages for the sale of plaintiff’s seat as a member of the New York Stock Exchange.</p> <p>The Stock Exchange is a voluntary unincorporated association of a thousand members, and the defendant is sued as president of it. The plaintiff, on the 31st of December, 1877, was suspended under article 14 of the constitution of the Exchange for failing to meet his contracts.</p> <p>The association, in January, 1878, attempted to expel the plaintiff upon an accusation of “ obvious fraud,” and in an action between the same parties this court adjudged and decided that his expulsion was illegal and void. The defendant, treating the plaintiff as effectually expelled under article 20 of its constitution, in April, 1878, sold his seat and appropriated the proceeds to the payment of his creditors in the exchange.</p>

<p>Code of Civil Procedure, secs. 1013, 3083—Reference—when issue of fact joined upon am, alternative mandamus may be tried by a referee—Compulsory reference, in what cases may be made.</p> <p>Where the return and answer to an alternative mandamus shows that the trial of the issues made thereby, will involve the examination of a long account, a compulsory reference may be ordered by the court.</p> <p>Sections 1013 and 3083 of the Code of Civil Procedure which are apparently in conflict, reconciled.</p>

<p> Guardianship. </p> <p>The appointment by a father, through his last will and testament, of a guardian for an infant child is effectual without the consent of the mother.</p> <p>Chapter 173 of the Laws of 1863 requiring the consent in writing of the mother to such appointment is repealed by chapter 33 of the Laws of 1871.</p> <p>Thompson agt. Thompson (55 How., 494) approved.</p>

<p> Divorce—Verified complaint—Facts which arre tole considered matters of affirmative dtfense. </p> <p>The facts required to he alleged in the complaint in a suit for divorce— that the alleged adultery was committed without plaintiffs consent, connivance, privity or procurement; that five years have not elapsed since its discovery, and non-cohahitation thereafter—are to he considered, wherp the complaint is verified, a matter of affirmative defense, which the defendant, in view of the disability of the statute, is hound to controvert and disprove.</p>

<p> Arrests—orders of, in district courts—what must le done to (mflwrwe. </p> <p>Under the old Code a warrant must be issued in the first instance in every case, to authorize the judgment allowing an execution against the person.</p> <p>As section 16 of the old Code is still unrepealed and operative, the only change made by the Code of Civil Procedure being that every action must be begun by summons and the substitution of orders of arrest for warrants of arrest, it would seem that the practice would be the same under the law as it now stands.</p>

<p> Sureties wpon a bond given to secure fidelity in a book-keeper—to what extent </p> <p>Where, in an action against sureties upon a bond given by A., as bookkeeper of plaintiff, conditioned that he should faithfully discharge the duties of that position, “ and the duties of any other trust or employment,” relating to the business of plaintiff, which might be assigned to him or which he should undertake to perform; and A. was subsequently appointed receiving teller of plaintiff, and afterwards was found to be a defaulter, which defalcation occurred long after he was appointed teller:</p> <p>Held, that the bond in question should not be held to cover this default.</p>

This action was brought to recover for the wrongful conversion of a yoke of oxen and of 800 railroad ties, the property of the plaintiffs.

<p>Assignments— Composition—Upon what the commissions-of the assignee is to be estimated— Compensation to attm'ney of assignee— Code of Civil Procedure, secs. 3252, 3253.</p> <p>Where upon a composition under the general assignment act, the creditors have agreed to take the notes of the assignors for a per centage of the amount of their respective claims, and when after payment of the expenses, all the property assigned, or the proceeds of it, is restored to the assignors, the five per cent commission upon the value of the estate allowed by law to the assignee is to be estimated upon the aggregate ■ amount of the composition, with the expenses incurred and paid out by the assignee added to it.</p> <p>In allowing compensation to the attorney of the assignee the court will not go beyond the $2,000 allowed in the cases provided by sections 3252 and 3253 of the Code of Civil Procedure, unless the nature of the attorney’s services is specifically detailed, in order that their value may clearly appear.</p>

<p>Fees of referee appointed “ to sell real property, pursuant to a judgment in an action” other than an action to foreclose a mortgage— Code of Civil Procedure, secs. 3297, 3307, 3308.</p> <p>A réferee appointed "to sell real property, pursuant-to a judgment in an action ” other than an action to foreclose a mortgage, is entitled to the same fees as those allowed to the sheriff.</p> <p>Under section 3307, subdivisions 7 and 11, of the Code of Civil Procedure, the sheriff is entitled to two and one-half per cent upon the sum recovered, not exceeding $250, and one per cent upon the residue.</p> <p>The referee is also entitled, under section 3297 of the Code of Civil Procedure (upon distribution), to one-half of an executor’s commissions. But he is only entitled to these commissions upon such of the proceeds as he actually distributes or applies.</p>

In this suit judge Donohue granted a preliminary injunction pending a hearing upon an order to show cause why it should not be continued, restraining the construction of the new iron pier at Coney Island. The general term is asked, under section 626 of the Code of Civil Procedure, to vacate the injunction.

<p> Partnership—liability of a, member of an old firm for a debt contracted with such firm, where the same has been dissolved and a new firm formed, who assumes all liabilities of the old firm, and agrees that liability of retiring members shall be terminated—Pacts which are sufficient to warrant the conclusion that the liability of the new firm was accepted by the creditors. </p> <p>When the dissolution of an old firm has occurred, and a new firm has . agreed to assume the liabilities of the old firm, but slight circumstances are required to justify finding an intention on the part of a creditor of the old firm, who has notice of the dissolution and of the agreement by the new firm, to accept the liability of the new firm in place of the • liability of the old.</p> <p>At the time of the deposits for which this action was brought, the banking firm of J. 0. & Co. was composed of several persons, among whom were J. W. S. and E. D. This firm dissolved January 1,1871. J. W. S. and E. D. then retired from the business, and a new firm was formed, consisting of the remaining members of the old firm and two new members. The new firm succeeded to the business of the old firm, the account with the retiring members was made up and settled, and the new firm then assumed all the obligations of the old firm, and agreed that the liability of the retiring members should be terminated. The new firm continued business until November, 1873, when it was adjudged a bankrupt. Among the debts of the new firm, published in the bankruptcy proceedings, was the debt here sued on, which debt was, without objection, proved as a debt of the new firm, in the bankruptcy proceeding of that firm, by the representative of D. R. Upon this debt so proved, dividends were, from time to time, declarad out of the assets of the new firm, and the same received by the representative of D. R. In 1879, the estate of the new firm was wound up under the direction of trustees, in accordance with the provisions of the bankrupt law, and the stocks then constituting the assets of the new firm were distributed among the creditors of that firm in pursuance of a scheme assented to by the creditors. E. D. died in 1877. During his lifetime no claim of liability for the deposits was made upon him. In September, 1878, and prior to the distribution of the stocks, payment of this debt was demanded by the representative of D. R., of the executor of E. D., who then denied the existence of the debt as a liability of E. D. Thereafter the representative of D. R. participated in the distribution of the stocks belonging to the new firm, and, as a creditor of that firm, received sundry shares of various stocks, which he forthwith sold at private sale, without notice to the executor of E. D. The amount of the cash dividends received from the estate of the new firm, together with the amount realized from the sale of the stocks distributed by the direction of the trustees, of that firm, not being equal to the amount of the deposits made in 1869 by D. R., this action is brought by his representative to charge the estate of E. D. with the deficiency:</p> <p>Held, that by the deposit made in 1869 with the old firm J. 0. & Co., E. D., then a member of that firm, became liable for the amount thereof. That liability continues, unless facts be shown from, which an intention on the part of the creditor to accept the liability of the new firm in lieu of the liability of the old firm can be fairly inferred.</p> <p>Held, further, that the circumstances in this case tends to show assent by the plaintiff to the novation of the debt sued on.</p> <p>The adoption of the new firm as the debtors, coupled with the omission, during the lifetime of the retired partner, to indicate, by word or deed, the existence of a liability on his part for the debt in question, and coupled with the lapse of time that occurred before the liability of the retired partner's estate was asserted, is sufficient to justify the inference that the new firm was adopted as debtor, with the intention that the liability of the firm was to stand in place of the liability of the old:</p> <p>Held, also, that having, without cause, delayed asserting the liability of the outgoing partners during a period of some five years, whereby the party was deprived of an opportunity to take part in the bankruptcy proceedings of the new firm, and to reimburse himself from the estate of that firm the plaintiff cannot now ask a court of equity to exercise its power in his behalf. The right here claimed is an equitable right only, and it may, therefore, be met by equitable circumstances.</p>

The plaintiff in April, 1880, leased the premises No. 18 West Twenty-first street to defendants for three years from the first day of May ensuing, by a sealed instrument in which was a clause that “ the party of the second part covenants that she will not assign this lease, nor let nor underlet the whole or any part of said premises, without the written consent of the party of the first part, under penalty of forfeiture and damages.” But prior to the execution of the lease,…

<p>Promissory note—Maker a/nd indorser—Action brought against both whero maker fails to answer, proceedings in—Uswry—when indorser estopped from setting up— Complaint—Amendment—Estoppel—when doctrine does not apply.</p> <p>Where an action is brought against the makers and indorser of a promissory note, and the makers fail to answer and a judgment of severance is entered against them, pursuant to section 456 of the Code of Civil Procedure:</p> <p>Held, that the action thereafter may he treated as though the indorser had been sued alone.</p> <p>Where the defendant, as indorser of an accommodation note, got his creditor to discount it at a usurious rate of interest, in payment of a past indebtedness upon the statement that it was business paper:</p> <p>Held, that he was estopped from setting up usury, and that the case of Payne agt. Burnham (62 N. Y. R., 69) was no authority, as the passing of the note operated as a payment sub modo of the indebtedness until the maturing of the note.</p> <p>Where an action is brought against the indorser of a promissory note, who was the original debtor, and the complaint states that he was indebted to the plaintiffs for goods sold and delivered in an amount about equal to the note, and that was proved by the defendant:</p> <p>Held, that it was the duty of the judge before whom the action was tried, to direct a verdict for the amount of the goods, and, if an amendment to the complaint were necessary, to have ordered it on the spot.</p>

<p> Creditor’s action against trustee of manufacturing corpo^'ation. </p> <p>A loan of $6,000 was made by A. to B.,"for the benefit of a manufacturing corporation of which B. was trustee, he giving as collateral security $6,000 of the corporation’s bonds, of which he was the owner. On nonpayment of the indebtedness, A.-caused the bonds to be sold at public auction and to be bid in for his benefit by O., a clerk in the office of his attorneys, for a nominal sum for which O. gave his note, which was paid with funds furnished him for the purpose. A judgment subsequently recovered by C. against D. in this court for the amount of the bonds, for D.’s default as trustee of the corporation in filing annual reports, was satisfied upon payment by D. of $1,300. A., who.received no part of this money, moved to set aside the satisfaction (which was made without his knowledge) as in fraud of his rights, his attorneys joining in the motion, alleging a lien upon the judgment for-professional services, of which lien C. was cognizant. The court refused to interfere. A., in a suit in his own name in the common pleas against D. and other of the trustees, to recover for the same defaults set forth in B.’s action against D., obtained judgment for the $6,000 loaned’ by him to the corporation. D. and his cotrustees becoming aware long after both judg. ments were obtained that A. had sued in B. ’s name and that both claims in fact belonged to A., sought to vacate the common pleas judgment, but the application was refused, “ without prejudice to any motion for any other relief.” They then brought this action against A. to enjoin the enforcement of said judgment:</p> <p>Held, 1. That this action is within the terms of- the favor granted the moving party upon denial of the application to vacate the common pleas judgment:</p> <p>2. Though in fact the corporation was indebted in $12,000 on the bonds and money loaned, yet, as the bonds belonged to B., a trustee, he could not maintain an action against cotrustees. for defaults in filing annual reports in which he had participated; and A., after selling the bonds held by him as security for a debt, could not recover in a suit for his benefit on the bonds, and on the debt besides.</p> <p>3. Such recovery for the advantage, in part, of B., could not be permitted, as it would be allowing, by indirection what could not be done directly.</p> <p>4. That A. and his attorneys have lost the fruits of the judgment in'favor of B., results from the unusual way in which they elected to proceed.</p>

<p>Complaint—D&murrer— Complaint by a receiver of a company against a trustee of a/nother company to recover for moneys illegally obtained—Sufficiency of—Demurrer to not sustained—Parties.</p> <p>A demurrer'to a complaint on the ground that it does not state facts sufficient to constitute a cause of action, cannot prevail, unless it is apparent from an examination of the complaint, taking all its allegations to he true, that no cause of action whatever is stated.</p> <p>The fact that the plaintiff may, in his complaint, have demanded relief to which he is not entitled, or may have misconceived the nature of the judgment which the court should pronounce upon the facts set forth in the complaint, does not make the complaint had upon demurrer, if those facts entitle him to any judgment or any relief.</p> <p>The complaint alleges that defendant, knowing that the stock of the Widows and Orphans’ Company, in which he was a trustee, was greatly impaired and depreciated in value, became a party to a transaction by which he knowingly and illegally received the trust funds of the Mutual Protection Company in payment for the former company’s stock, and that, with such knowledge, he disbursed the money thus received to himself and others in payment for such stock; that he also received $35,000 for his services in acting in the capacity of stakeholder of the moneys and stock pending the consummation of the agreement between the parties, and also paid to the president of the Widows and Orphans’ Company, $10,000, in pursuance of the agreement alleged in the complaint:</p> <p>Meld (overruling demurrer to complaint as not stating facts sufficient to constitute a cause of action), that the complaint states facts sufficient to show a fraudulent conspiracy on the part of defendant, with others, to illegally obtain the trust moneys of the Mutual Protection Company; defendant being bound to know that that company was prohibited from investing its funds in stock below par, and the extravagant price paid for the stock in itself raising the presumption of fraud.</p> <p>There is no defect of parties defendant, though others alleged to have been engaged in the scheme are not joined, because these parties were joint tort feasors with defendant, and severally as well as jointly liable to plaintiff; and it is, therefore, at his option to sue any one or all; and the fact that equitable relief is demanded does not affect the question as to parties.</p>

<p>Surrogate — Jurisdiction — Contested claims against estate — Proceedings to sell the lands of a decedent to pa/y the debts and claims against him, and to, make distribution—Jurisdiction of surrogate to hea/r and determine — Writ of prohibition—Code of Oiril Procedure, secs. 2755, 2756, 2758, 2761, 2788.</p> <p>In proceedings to sell the lands of a decedent to pay the debts and claims against the decedent, and to make distribution among the creditors, the surrogate has jurisdiction to hear proofs and decide upon a claim disputed by the executor.</p> <p>The surrogate has not jurisdiction to decide the question between a creditor of the deceased on the one side and the representative of the deceased upon the other.</p> <p>It is entirely plain from the provisions of the Code of Civil Procedure (see'sections 2755, 2756, 2758, 2761, 2788) upon this subject that the surrogate is the proper if not the ultimate tribunal for the determination of the claims of creditors, whether disputed or not, upon the real estate of the decedent sold under the order of the surrogate for the payment of debts and its proceeds.</p> <p>Qucere, whether the surrogate should not delay the hearing upon relator’s claims and the making of distribution until the relator's action, pending in the supreme court, to make the decedent personally liable or his estate chargeable for misappropriating funds equitably belonging to the relator.</p>

This action was brought against the defendants as sureties upon an undertaking on appeal from the special to the general term of the court of common pleas. The appeal was dismissed on the 2d of Hay, 1881, and according to the terms of the undertaking the liability of the sureties became fixed. On the same day an execution upon the judgment was issued, which the defendant therein satisfied by paying the same to the sheriff on the 18th of Hay, 1881.

<p>Insurance, fire—limitation of action try clause in policy—When policy not void try noú-occ/upany of building— When not void by reason of clause as to liens.</p> <p>Where the policy of fire insurance contained the following clause: “No suit or action of any kind against this company for the recovery of any claim upon, under or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term'of twelve months next afterr the loss or damage shall occur.” By the terms of the policy, proofs of loss were to be furnished in sixty days from the happening thereof. The fire occurred January 11, 1876, and the suit was not commenced till March 3, 1877:</p> <p>Held, that a recovery is not barred by the clause in the policy. The words “ after the loss shall occur,” refer to the time when the loss shall become a fixed demand, and not to the time of the actual destruction. ' Limitations of action never commence until the cause of action accrues.</p> <p>The policy contains, a clause, which declares, after the enumeration of several other matters: “or if the premises, at the time of insuring, or during the life of this policy, vacant, unoccupied, or not in use, whether by the removal of the owner or occupant, or for any cause, without this company’s consent is indorsed hereon,, this insurance shall be void, and of no effect,” On the application of the insured, the general agents of the defendant wrote in the body of the policy, so as to make a part and portion of the contract, this clause : “ The dwelling being unoccupied for a short time, but being in charge of a trusty person living near by, shall be no prejudice to this policy:</p> <p>Held, that the clear effect of the insertion of such a clause in the body of the policy was to modify the contract as originally made; and the one making it void for non-occupancy must be read in connection with the amendment, and so reading it the policy is not vitiated; for the premises were only temporarily vacant at the time of the fire, and were then “ in charge of a trusty person living near by.”</p> <p>Held, further, that a declaration of the defendant, by its general agents, when informed of the last vacation of the premises, that the contingency was provided for, would waive the forfeiture, if any existed.</p> <p>Where the policy contained a clause as to liens, as follows: “In case of assignment, before or after loss, whether of the whole policy or of any interest in it, or of any sale, transfer or change of title in the property insured by this company, or of any undivided interest therein, or the entry of a foreclosure of a mortgage, or the creation of any lien, or the levy of an execution or attachment, or possession by another of the subject insured, without the consent of this company indorsed hereon, this insurance shall immediately cease.” Various judgments were recovered against A., to whom the policy was issued, and under one the premises on which the insured dwelling was located was sold by the sheriff to S., the plaintiff. Four days after such purchase the defendant, by its general agent, and by an indorsement made upon the policy, consented to the assignment thereof by A. to S.:</p> <p>Held, that the consent to a transfer was a renewal of the policy, if it had become void by the sale or recovery of the judgments.</p> <p>Held, further, that the recovery of the judgments against A. did not vitiate the policy. He did not, by his own voluntary act, incumber the property, and he must have created the liens to make the policy void.</p>

In June, 1880, a motion was made in this cause for an order substituting other attorneys in the place and stead of Messrs. Holbrook & Smith, attorneys for defendant, and requiring them to deliver to said defendant all papers in their possession belonging to him. On the hearing of said motion it was referred to a referee to take proofs and report the same with his opinion as to what, if anything, was due said Holbrook & Smith for services rendered by them for said defendant.

<p>Cebtiobabi to review summary proceedings had before justice Angel on the 6th of August, 1880.</p>

Motion by defendant to set aside execution, and for restitution, on the ground that plaintiff’s proceedings were stayed by undertaking on appeal. The undertaking described the judgment appealed from as a judgment entered on March 11, 1881, when in fact the judgment was entered on the 12th of March, 1881. :A similar mistake was in the notice of appeal.

<p>Extra allowance—Appeal—Order allowing, though granted by default, is ampeaUMe. — Code of Civil Procedure, section 3253.</p> <p>In an action to restrain the recognition of a claim to an office, the defendants, upon plaintiff’s default, on the case being called for trial, on notice, was granted an extra allowance:</p> <p>Held, that the action was not one in which, under the Code, the court had power to grant an allowance; and that though the general notice of trial is sufficient notice for an application for an allowance upon a trial in cases where the law provides for an allowance, this being no case for an allowance, the order, though granted by default, is appealable.</p>

Complaint—causes of action which cannot be united in—Improper- joinder. Causes of' action for the conversion and wrongful detention of personal property, and for an accounting.between the parties, cannot properly be. united in the same complaint.

<p> Trusts—fvhat trusts descend to the legal representatives on the death of a trustee, </p> <p>A trust fund, consisting of personal property, upon the death of a trustee descends to and the title vests in his legal representatives,</p> <p>The provisions of the statute {B. 8,, part 2, title 2, chap. 1, sec. 68) giving the title to a trustee to he appointed by the court, apply fo trusts in real estate only.</p>

<p>WM— Codicil—construction of—Hweation as to accumulation of income— •when void— Bffect as to residue of trust.</p> <p>The testator directed his trustees to set apart a third of the income of his residuary estate for the use of his great granddaughter during her life; the principal sum to go to her children, or, in case of her death without issue, to others. By a codicil, he directed that so much of such income as should not be needed, in the judgment of his executors, for her support, should be invested during her minority, and any accumulations of interest should be added to the principal:</p> <p>Held, that though the terms of the codicil as to accumulations of income are in conflict with the provisions of the Revised Statutes, yet that this invalidity does not affect the residue of the trust, and that the invalid portion may be dropped.</p>

<p>Motion for continuance of preliminary injunction, pendente Ute.</p>

This suit was a test case, covering the ownership of four miles of beach extending from Rockaway Beach to Long Beach. After the sea had cut off the sea-front of the main land between the points mentioned, a beach was reformed outside the main land and divided from it by a bay of navigable water.

<p>Married women — Marriage contracts— Trusts created by a woman contemplating marriage— The act of 1849 (Laws of 1849), chap. 375, inapplicable to a trust created by a beneficiary herself, after the passage of the enabling act of 1848.</p> <p>The plaintiff, in 1857, in contemplation of marriage, gave her property by a trust deed to trustees to pay her the income for life, with a provision for her husband if he survived her; but if she survived, the property was to go to such person or persons as she might by will direct, and in default of a devise by her it was to descend to her heirs. The plaintiff survived her husband and remarried; and subsequently, in 1873, the trust property was reconveyed to her by the surviving trustee, under the provisions of the act of 1849:</p> <p>Held (in an action for the partition of some of this property which plaintiff held as tenant in common with one of the defendants), that plaintiff,by the-trust deed, divested herself of all her estate in the property, and that she cannot recall the trust; that the Supreme Court, before the act of 1849, had not power to destroy such trust, and said act did not give authority for its extinguishment, the purpose of the act being to enable trustees, after the act of 1848 had freed married women from their peculiar disabilities,-to reconvey to the beneficiaries trusts created prior to that act for the benefit of women contemplating marriage.</p>

<p>This is an appeal by the plaintiff from an order of the general term of the marine court affirming an order setting aside the verdict rendered herein in favor of the plaintiff, which order also dismisses the plaintiff’s complaint, so the only remedy the plaintiff had was to appeal to this court, or the language of the order is as follows:</p> <p>“ This cause having come on for argument on the appeal taken herein, and after hearing Hr.. Mitchell for the appellant and Mr. More for respondents, it appearing to the court that the verdict of the jury was not against the weight of evidence, but that the contract sued upon and. proven on the trial was a verbal one, and within the statute of frauds, the mortgage assigned being a trust security and not property, we affirm the order only on that ground, otherwise the order should be reversed, and judgment on verdict of the jury reinstated.</p> <p>“ It is ordered that the order granting a new trial, and setting aside the judgment entered herein, be and the same hereby is affirmed on the questions of law involved, and that defendants have judgment against the plaintiff, dismissing his complaint.”</p> <p>The general term of the marine court expressly declare that the verdict was not against the weight of evidence, but so far as the ’questions of fact were concerned, the general term approves the verdict, thus presenting only questions of law to this court.</p> <p>The action arose out of the following facts: It appears William Holcomb was a retail grocer, doing business iii Jersey City, and had several accommodation notes of Gilbert D. Haneox, which were discounted at the hank; Holcomb also owed the firm of H. K. Thurber & Co. about $800. Holcomb and his wife executed a mortgage of $2,000 to Han-cox. Haneox, on receiving the mortgage, executed and delivered back a writing, showing that the mortgage was given, first, to secure the payment of his accommodation notes which he had loaned to Holcomb; second, to secure the indebtedness to the Thurbers.</p> <p>Some three or four months after this mortgage was executed Holcomb became insolvent, and his business, it appears, continued in his wife’s name, and the indebtedness for which the mortgage was given was reduced to about $1,400.</p> <p>The Thurbers promised and agreed with Haneox, with the assent of Holcomb, that if Haneox would assign and transfer the $2,000 mortgage to them they would take up and pay his said accommodation notes that had been discounted in the bank by Holcomb, and the mortgage was to be security in their hands for the old debt, and also to secure them for the debts contracted or to be contracted by Holcomb’s wife to the full extent of the mortgage (Holcomb’s wife having commenced to trade with the Thurbers at that time).</p> <p>Haneox, in consideration of these promises, duly assigned the said mortgage to the Thurbers.</p> <p>One of Hancox’s said notes, $350, was never paid by the Thurbers. Haneox assigned his claim against the Thurbers to the plaintiff.</p> <p>The action is brought for the failure of the Thurbers to pay the said $350 note, according to their promise, and interest thereon.</p> <p>The defendants raised the statute of frauds, claiming that the promise is within the statute.</p> <p>It appears that this $2,000 mortgage was a second mortgage, there being a prior one of $3,000.</p> <p>The defendants themselves valued this property at $4,500.</p> <p>The simple question in the case is, have the Thurbers paid for this mortgage ? Have they carried out the promise they .made, in consideration of which it was transferred to them ? If they have not, are they not bound to do so ? Can a party buy a piece of property and, in consideration therefor, verbally agree that he will pay the seller’s note in the hands of a third party running to maturity, and then, after getting the property into his hands, say to the vendor: “ I will not pay your notes, because my promise to you to pay them involved also the payment of another person’s indebtedness 1 ” The Thurbers have obtained and enjoy the mortgage and all interest Hancox had in it; not only .the mortgage, but the property itself.</p>

<p>Corporations — Stock companies — thei/r right to issue stock for their swrplus earnings — Such issuing not prohibited by the lams of this state—Injunction— When inwease of capital stock not against public policy — What is not deemed a watering of stock of a corporation—Telegraph companies.</p> <p>Although the amount of property belonging to a corporation is one of, the considerations which enters into the market value of its shares, yet such market value also embraces other essential elements. It is the estimate put on the potentiality of a corporation to avail itself profita bly of its franchise, on its capafcity and on the mode in which it uses its privileges as a corporate body, which materially influences and often controls its market value.</p> <p>The difference between the actual value and the sum paid by the Western Union Telegraph Company for the property of the American Union and the Atlantic and Pacific Telegraph Company (if any) is not so great as to authorize finding that the agreement was fraudulent and therefore should be set aside on that ground alone.</p> <p>A corporation organized under the laws of the state of New York is authorized by these laws to issue scrip dividend to represent its surplus earnings.</p> <p>The action of the Western Union Telegraph Company in issuing certificates of stock to the amount of $15,526,590 is not prohibited by the statute (2 B. S. [6th ed.], 398).</p> <p>The meaning of the words “ capital stock ” as used in this statute means the property and franchises of the company, and the statute itself means that no corporation shall divide among its shareholders any portion of “ the property and franchises of the company.”</p> <p>The capital stock of a corporation mentioned in its charter is not per se a limitation of the amount of property, either real or personal, which it may own. It may divide its profits among the stockholders at such times and to such amounts as the directors may deem expedient. Instead of dividing the profits, they may, in their discretion, permit the surplus of property to accumulate beyond their original capital, as the interest of the corporation shall appear to dictate; and the corporation has, in the manner provided by law, a right to increase the number «of certificates which represent the interest its stockholders have in its corporate fund. Such transaction is neither in law nor in fact a watering of the stock of a corporation.</p> <p>Chapter 399 of the Laws of 1873 provides the manner in which a company organized under the laws providing for the incorporation of telegraph companies can increase the number of shares of its capital stock:</p> <p>Held, that the Western Union Telegraph Company has complied with the requirements of this law. It has published the notice as required, and • has obtained the written consent of the shareholders owning and holding three-fourths in amount of its capital stock.</p> <p>JEW, also, that this increase of capital stock, authorized as it is by the laws of this state, is not against public policy, because the law-making power of the state has allowed it.</p>

<p>Mortgage foreclosure— Sale—When two or more buildings may be sold in one parcel— Oode of Giml Procedure, section 1678 — The word “ must ” in this section directory merely.</p> <p>The word "must,” in section 1678 of the Code of Civil Procedure, is directory merely, and a foreclosure sale of two buildings is not invalidated because they have been sold together.</p> <p>The question whether a sale in one parcel is proper or not, is one that must be determined by the circumstances of each case..</p>

<p>Com/pulsory reference — when it may he ordered—Action for pa/rtition— Code of Civil Procedure, secs. 521, 1013, 1544, 1546, 1547, 1557, 1577.</p> <p>Where, in an action for partition, there are a large number of defendants and many separate appearances, and where the case presents four distinct issues of fact, two of which affect distinct parts of the property, and the other two affect undivided shares in the whole of the remainder :</p> <p>Held, that, though the cause can be better tried by reference than in. any other way, yet, if any of the parties object to a reference, the case must go to a jury. -</p> <p>But, except as to the issues raised by claim of ownership of two pieces of the property, a compulsory reference may be ordered, and the action may be severed so as to try separately before a referee the issues as to the remainder of the property, the title to which is not in dispute.</p>

<p> Assignment—Effect of a larihrwptey composition bn a state lam assignment. </p> <p>The right of a creditor to an accounting hy the assignee cannot be divested by the mere fact of a composition in bankruptcy, unless that right was in some way relinquished by the creditors, or shall be divested by the order of the court in bankruptcy, as when a composition has been made and accepted, and the terms of the composition have been complied with, the bankruptcy court will order the property in the hands of the assignee in bankruptcy to be surrendered to the bankrupt.</p> <p>If a composition under the bankrupt law has been duly ratified,, it confines the creditor to his security and discharges the debtor from liability. But the creditor can pursue any collateral remedies for the collection of his debt.</p> <p>Where it did not appear whether the proposition for a composition embraced as a part of it that the security which the creditors already held by and under the assignment^ to P. should be relinquished, and did not appear whether the petitioning creditors, in proving their debts, made any deductions from their face on account of any security they had by virtue of the assignment to P., and especially it did not appear whether the bankrupt court, in approving of the composition, took into consideration the amount realized from the assigned property, or estimated that as a part of thirty per cent, which was to be paid by the composition, and was agreed to be accepted in satisfaction, or whether the proposition for a composition provided that the security to which the creditors were equitably entitled under the assignment should be relinquished, • and as it does not appear that the bankrupt court has authorized P. to deliver back the assigned property to the assignors:</p> <p>Held, that it was error in the county court to refuse the application of the petitioning creditors for an accounting of the assignee, and releasing him from his liability to account to his cestui que trust, and authorizing him to deliver back to the assignors the assigned estate.</p>

<p> Receiver—when should not he appointed in partition suit—Insufficiency of </p> <p>Where, in a partition suit, one of the parties in interest has in his posses? sion a portion of the estate, and has been in the habit of collecting the rents, as he alleges, for the protection of the income from waste, a receiver of such property should not be appointed upon affidavit upon information and belief, that such party is of little or no responsibility.</p>

<p>Swmmm’y proceedings'to recover possession of real property—Where tenant is am, infant, guamdiam should be appointed by the court at request of infant —Remedy where cowrt refuses to appoint — Appeal—Injunction not the the propm' remedy— Code of Civil Procedure, §§ 2260-2265.</p> <p>In summary proceedings by a landlord to remove a tenant, where such tenant appeared and interposed an answer that he was an infant, and asked that a guardian ad litem be appointed, it was probably error in the district court justice to refuse to do so, for which the proceedings should have been reversed.</p> <p>But the remedy of the tenant was by appeal or motion to set aside the judgment, instead of an independent equitable action for a perpetual injunction against the enforcement of the order of dispossession.</p> <p>Section 2265 of the Code of Civil Procedure prohibits the granting of an injunction in such a case as this.</p>

<p>Appeal from an order made at circuit, directing the trial of this action before a referee.</p>

This is an appeal from an order of special term vacating an attachment upon the application of subsequent attaching creditors, Milliken and others. Plaintiffs were copartners in the business of selling domestic cotton goods, Leonard street, in the city of Hew York. Defendants were similarly engaged. The firm of Milliken & Co. were also in the same business in the same city. Plaintiffs brought this action against defendants, and obtained an attachment.

<p>Appeal from order denying defendants’ motion to have the allegations contained in the first paragraph of the complaint made more definite and certain.</p>

<p>Appeal from an order of the special term denying motion for mandamus to compel the county clerk to pay over money deposited with him to remove mechanics’ Hen on certain lands.</p>

<p> Qonstrruction of will—Vesting of interests. </p> <p>The testatrix gave real estate to executors, in trust, to receive and divide the rents and profits equally between her two sons, A. and B., and her grandson 0., until 0. should become of age; the property to be then divided in three equal shares, one share each, to be conveyed to A., B. and 0., but in case C. should die before such division and conveyance, without issue, then the whole estate was to be divided between and conveyed to the two sons. The testatrix died in 1876. Her son A. died in 1879, intestate, without issue; and her grandson 0. died in 1880, intestate, under age, and without issue; his father, the plMntiff, being his. sole heir.</p> <p>Held, that at the time of his death, A. was vested'with an interest in the real estate by the terms of the will, and that upon his death his share went' to his brother B. and nephew 0., and that the plaintiff, the father of 0.', as the heir of his son, takes his share, which is one-half of one-third of' the estate.</p>

Ellen McQuien secured an absolute divorce from her husband Donald in 1879, in a suit in the court of common pleas, and was awarded about $1,000 a year alimony. She gave a receipt in full for $312 for the first year, in consideration, as defendant claims, of receiving the money in advance; but, as she insists, because' she was deceived by her counsel, Mr. Gibbs, her intention being to give a receipt only for the sum named on account.

This was a motion to dismiss the appeal, taken by the mayor, aldermen and commonalty of the city of Hew York, from an order of the general term which confirmed the report of commissioners of estimate and assessment made in proceedings taken to acquire title to One Hundred and Thirty-eighth and other streets in the Twenty-third and Twenty-fourth wards of the city of Hew York.

<p> Construction of will—Latent wnbiguity—Extrinsic evidence. </p> <p>The testatrix, who left a niece, Eanny R. Gibson, and a grandniece, Eanny Gibson, mother and daughter, gave $1,000 “ unto my grandniece, Eanny R. Gibson:”</p> <p>Held, that this constitutes a case of latent ambiguity or equivocation, as to which extrinsic evidence was admissible to prove which of the persons were intended by the testatrix; and as the mother was the nearest of kin to the testatrix, a presumption arises that she was intended.</p> <p>By force of the positive direction in the will to the executors, to sell the real estate of the testatrix and convert the same into cash, there was an equitable conversion of the real estate into personalty at her death.</p>

<p>Supplementary proceedings—What judge may entertain the proceeding — Code of Civil Procedure, section 2434.</p> <p>The supreme court is not deprived of jurisdiction in cases of supplementary proceedings by section 2434, of the Code of Civil Procedure.</p>

<p>Application by habeas corpus to discharge Bayard' from confinement in the Albany Penitentiary.</p>

<p>Extra allowance—When and how allowed—Code of Civil Procedure, section 3253 — '¿he word “involved” as used in this section, means “affected.”</p> <p>The word “involved,” as used in section 3353 of the Code of Civil Procedure, means “ affected.'”</p> <p>Where the plaintiff claimed that the defendant, the Western Union Telegraph Company, had no legal right to the property of the American Union Telegraph Company, and the defendant claimed it was the legal owner of the property, and the court sustained its claim :</p> <p>Held, That the title of the defendant to this property was affected hy this judgment, and an extra allowance to defendant may he computed upon the value of such property, as “the subject-matter involved.”</p> <p>The fact that plaintiff, on obtaining an injunction, gave an undertaking to pay damages suffered hy the party enjoined if the injunction should not be sustained, does not deprive defendant of the right to an extra allowance, though such allowance may he considered hy the court on the assessment of damages upon the undertaking.</p> <p>The fact bf the entry of judgment is not a waiver of the right to costs and allowances, though an extra allowance cannot he granted after the taxation and entry of costs in a judgment.</p>

<p> WiU—ambiguity, construction of words—‘'Intention to control. </p> <p>The testator devised a house and lot to his wife, and authorized his executors “to pay off any mortgages or other incumbrances there may be on said house and lot at my death, provided the title is in me ; ” but it appeared that when the testator purchased these premises, in 1874, the conveyance was made directly to his wife, and the title remained in her up to his death. She in the deed assumed payment of a mortgage upon the property. The payment upon the purchase-price was paid by the testator, and he paid the taxes and a portion of the principal of the mortgage, and personally guaranteed the payment of the remainder:</p> <p>Reid, that the testator meant that the executors should pay off this mortgage if .the title remained at his death in the condition in which he had placed it.</p> <p>The questions raised in the answers, upon affairs of administration and payment of legacies, as no questions of doubt arise, are proper matters for legal redress, and are not to be interjected in an action for the construction of a will.</p>

Appeal by the mayor, aldermen and commonalty from an order of the special term vacating an assessment. The board of revision and correction of assessment lists confirmed, April 9th, 1874, an assessment for building underground drains extending from Seventy-third to Eighty-first streets, and from First to Fifth avenue, and a lien was thereby imposed on petitioners’ lots situated on Seventy-fourth street.

Motion to dismiss complaint on cause being moved for trial, on ground that the county court has no jurisdiction of the cause of action stated in the complaint. The action is brought to recover damages for an alleged assault and battery, and the amount demanded is $2,000.

<p>Taxation of insmance companies under Laws of 1880 — Oompa/ny not taxable on its receipts during the five months pi'eaeding the passage of act— Not taxable upon premiums received for insurance upon property without the state — nor upon premiums of insurance upon imported goods stored in bonded wa/rehouses.</p> <p>In an action brought by the state against the defendant, a domestic corporation to recover eight-tenths of one per centum upon the entire amount of premiums received by it on its business done in this state during the six months ending the 1st day of July, 1880. The action being based upon the act (Laws of 1880, chap. 542) entitled "An act to provide for raising taxes for the use of the state upon certain corporations, joint-stock, companies and associations.” The act became a law and took effect immediately:</p> <p>Held, first, that the act should not be so construed as to levy a tax upon the receipts of the defendant from its business during the five months preceding its passage.</p> <p>Second. That the defendant is not taxable upon the premiums received for insurance upon property situate without the state.</p> <p>Third. That the defendant is not taxable upon premiums of insurance upon goods imported from foreign countries, and stored in bonded warehouses.</p>

<p> Insurance companies—their taxation under law of 1880—Not taxable on receipts during the five months preceding the passage of the act. </p> <p>In a suit founded upon the fifth section of the act entitled, “An act to provide for raising taxes for the use of the -state upon certain corporations, joint-stock companies and associations,” which act became a law June 1, 1880, and took effect immediately (laws of 1880, chap. 542):</p> <p>Held, that the statute should not be so interpreted as to give to the state the tax upon the income of the defendant for the five months preceding its enactment.</p> <p>The law of 1880 required a semi-annual report from the companies to be taxed, and that such a semi-annual report was to be made, to use the express words of the act, "in each year.” As a semi-annual report only, and no other, is called for, and that must be made each year, it follows that the section of the statute laying the tax and calling for the report, when it uses the word hereafter to designate the commencement of the time when its provisions shall take effect, refers to the years which are to follow the one during which the law was passed (See The People of the State of New Torh agt. The National Pire Insurance Company of New Torh, ante, 334).</p>

<p>Insurance {Life) — Policyholders not partners, but mere creditors of the corporation — they can only obtain relief as judgment creditors— Complaint— Demurrer.</p> <p>Where plaintiffs, suing as policyholders of the defendant corporation, seek to call the directors of the company to account for various alleged breaches of trust, whereby the company’s assets are claimed to be wasted and wrongfully misappropriated, and asks for a receiver and an accounting:</p> <p>Held (sustaining demurrer to complaint), 1. That no trust was created or now exists between the plaintiffs and the defendant corporation and its directors. 2. The plaintiffs’ alleged claim being thus reduced to mere creditors of the defendant corporation, which is solvent and able to meet all its obligations, they can only obtain relief as judgment creditors.</p>

<p>Motion by defendant for a new trial on case and exceptions.</p>

This is an action by the executors and trustees under the will of William Lottimer, deceased, for the construction thereof. The testator died in the year 1876, leaving a large estate. He left as his survivors his widow, Jane C., and five children, all of age, except a daughter Mary. The clauses or parts of the will more immediately concerned in this controversy are the eighth and tenth paragraphs.

<p>In this suit, which was for an absolute divorce, the plaintiff -was ordered, pending the action, to pay about $350 arrears of ¡.alimony and counsel fee, and twenty-two dollars weekly -alimony. He was imprisoned for failing to comply with the -order. His counsel now moves to set aside the warrant of commitment, upon the ground that the court had no jurisdiction to grant it.</p>

<p>Liability of trastees of rmnufactimrig corporations under section 15.</p> <p>In this action the plaintiff sought to charge the defendant, as one of the trustees of a manufacturing corporation, with the amount of a certain debt of the corporation, under the provisions of section 15 of tho general manufacturing act, on the ground that certain reports made by the corporation were false in material representations contained therein, and that the defendant, who had signed the same, knew such reports to be false. It appeared, among other things, on the trial that the whole capital stock ($300,000) was issued in payment for the mine, manufactory and other property of the corporation. The case was tried and submitted to the jury on the theory that if the property had been purchased by the corporation for a price in excess of its value, and if the defendant knew at the time when he signed such reports that such was the fact, then the plaintiff was entitled to the debt sued for:</p> <p>Held, on the question of the good faith of the trustees in their estimate of the value of the property for which the capital stock was issued, and on the question of their notice of its actual value, that it was competent to show the representations made to them by experts and others competent to judge of the actual value of the property. But that it was for the jury to determine whether they, in good faith, acted and relied on the opinions which they so received and believed the value of the properly to be as represented.</p> <p>Held, further, that it is not necessary that each trustee should have actual personal knowledge of the property and of its value. That in many cases they must depend upon the representations of experts and others presumed to have a practical knowledge of the property and its value.</p>

This action was commenced to obtain the construction, by. this court, of the will of the late George P. Wolcott. The plaintiff -was his daughter and was married to Henry H. Herriam in 1874, who left her and finally separated from her in June, 1878.

<p>Motion to vacate an ex p curie order obtained by defendant giving Mm additional time to procure surety upon appeal.</p>

<p>Actios- for the construction of the will of Deborah A. Westeriield, deceased.</p>

<p>Testimony of pa/riy dying after trial, is evidence on new trial—When testimony of party examined on former trial who is rendered incompetent hy the death of his adversary map he read— Code of Civil Procedure, section 830,</p> <p>A party who has been examined in the first trial, and who is rendered incompetent by the death of his adversary before the second trial, may have his testimony, given in such former trial, read at'any subsequent trial. .</p> <p>The statute does not require that the testimony of the deceased party should be first offered.</p> <p>The plaintiff was not allowed to read .his own testimony taken on a former trial relating to personal transactions with the original defendant, who " has since died, upon the ground that the jury having disagreed there had been no former trial:</p> <p>JBeld, that, within the provision of section 830 of the Code of Civil Procedure, under which plaintiff claimed the right to read his testimony, the trial is concluded when the case is closed and submitted to the jury.</p>

The defendant appeals from a judgment, entered in Steuben county, upon the verdict of a jury, taken at a court in that county.

Motion by plaintiff in each of the above entitled actions upon the minutes of the judge, to set aside judgment, entered upon the order of nonsuit granted at the trial, and to grant a new trial upon exceptions.

Motion by ¡Robert ¡Kerr, the landlord of defendant Loucks, to set aside a judgment by default in an action of ejectment recovered against the tenant.

<p>EraAidulmt conveyances—Execution upon judgment—When not necessary > in creditor's action—Chap. 466, La/ws of 1877—Misjoinder of cause of action—P leading.</p> <p>The defendants, who were partners and joint debtors and were insolvent, conveyed each his individual real estate, without actual consideration being paid, and then made a general assignment for the benefit of creditors:</p> <p>EM, that though the assignment is valid, the conveyances are fraudulent ' and void, and cannot be upheld as made to provide for debts of the grantors, for a want of conformity to the provisions of chapter 466 of the Laws of 1877, which apply to “conveyances,” as well as “assignments,” made by a debtor.</p> <p>Also, that to establish the judgment creditor’s lien on real estate no execution upon the judgment was necessary.</p> <p>Also, that it was no misjoinder of causes of action, to unite in the complaint, causes for the joint fraud, with those of the individual fraud of the defendants.</p>

<p> Bid of lading—Bemwrrage. </p> <p>Where a bill of lading contains a clause that in case the consignees of a cargo shall discharge the same they shall charge the master not to exceed ten cents per ton, and have four full working days to discharge the same after notice of the arrival of the boat at their dock, and to pay the master for any time the boat is detained for discharging, after the expiration of said four days, five dollars per day, and at the same rate for portions of a day:</p> <p>Held, that the consignees had an election, upon the arrival of the boat, whether they would themselves unload the cargo or require the master to unload it. Primarily it was the duty of the master to unload the cargo.</p> <p>Where in such a case the consignees upon the arrival of the boat offered the master dock room, though without special facilities for speedy and economical unloading, and notified him that they would not unload the cargo except he would wait his regular tura, and would not pay him demurrage:</p> <p>Held, that this was notice to the master that the1 consignees elected not to unload the cargo except in its regular turn, and that the master, after such notification, having seen fit to> wait his. turn was not entitled to recover demurrage.</p>

<p>Catholic Protectory—Yagrant child/ren— Commitment under act of 1877, may he made without notice to yarrents.</p> <p>Children found picking rags in the streets of the city of New York may he committed to the Catholic Protectory under the act of 1877 (Laws of 1877, chapter 428), without notice to parents or guardians.</p>

<p>Agreement to lease—Specific performance—action to compel execution of— Part performance—Proof required to entitle party to a decree of specific performance.</p> <p>Where plaintiff sues to compel defendant to execute and deliver a lease of certain premises in the city of Hew York, for the period of four years, from May 18,1881, upon the ground of part performance of an agreement to lease, and defendant claims that the plaintiff was in possession under an oral lease for one year:</p> <p>Held, that the rule being that the contract must be established by competent proofs, and be clear, definite and certain, the preponderance, with the conflict of evidence, is with the defendant; and, therefore, the possession of the plaintiff, as it may have been taken under a letting for a year, cannot be held to be a part performance of the contract alleged by him; nor could the improvements upon the premises be a part performance, as they were not made in pursuance of any provision of the agreement.</p>

Or the 8th of February, 1881, a summons was issued by the clerk of the seventh district court in this action, returnable on the 15th of February, 1881, requiring the defendant to answer the complaint of the plaintiff in this action, and a notice that the plaintiff would take judgment against the defendant for the sum of $150, if the defendant then failed1 to appear and answer.

<p>Husband and wife—Liability of husbamd for necessac'ies furnished his wife who leaves him while insane— Superintendent of the poor cannot maintain ' action for.</p> <p>Though a husband, whose wife leaves him while insane, would have been liable at common law to any one who should have supplied her with necessaries, or maintained her, yet an action oh such common law liability cannot be maintained by a superintendent of the poor.</p>

<p>Taxation—Party earn, only be assessed for Ms “ taxable personal property,” deducting from its value the just debts owing by Mm — What a/re just debts.</p> <p>The-relator was the owner of 221 shares of the capital stock of the First National Bank of Troy, which the assessors, in the imposition of a tax upon him, have valued at sixty-five dollars and fifty-three cents per share. On the 1st day of September, 1880, the relator appeared before the assessors and was sworn and examined orally as to his property. The evidence disclosed debts owing by the relator greater than the value of his personal property, including as a part of such personal property ■his shares of stock in the bank. Twenty-five thousand dollars of the debt owing by him was for money borrowed of the First National Bank =of New York, for which amount such bank held his note, payable on ■demand. The note had been discounted in May or June, 1880, and with its proceeds such bank had purchased for the relator United States bonds, which it held as collateral security for the payment of the note. The assessors refused to deduct the amount of such note from the taxable property. On certiorari, under chapter 269 of the Laws of 1880, to review the assessment:</p> <p>Held, that the assessors were not justified in their refusal to deduct the debt owing by the relator in New York from the value of his bank shares.</p> <p>The obligation held by the New York bank against the relator was a just debt, as it was for money loaned to him, for which he had given his promissory note, payable on demand. That such money had been used to purchase United States bonds, which were pledged to the bank as security for the payment of the note, did not make it less than a just debt, which must, by the Revised Statutes, be deducted from the value of the relator’s “taxable personal property,” and by the act of 1880 {chapter 596), from the value of his bank shares, and for the balance only of such value was the relator taxable.</p>

<p>Stock— Subscription and payment both, necessary to make a complete contract on which action may be maintained— The execution and delivery of check not payment.</p> <p>The defendant subscribed for 100 shares of the capital stock of the plaintiff of the par value of fifty dollars each, and gave his check for ten per cent of the amount of the subscription; but before the check was presented for payment it was countermanded by the defendant:</p> <p>Held (in action to recover the amount of defendant’s subscription), that no binding subscription was made by defendant for the stock of the company, because of his failure to make the cash payment of ten per cent required by the statute before the subscription itself could be received by the commissioners; and what was done was entirely ineffectual (Affirming S. 0-, 58 How., 273).</p>

The judgment was in favor of the defendant and against the plaintiff, dismissing his complaint with costs.

<p>Complaint— Demurrer—What causes of action ma/y and may. not he joined in the same complaint— Code of Civil Procedure, secs. 484-488.</p> <p>Where plaintiff sets up a claim against a railroad corporation for penalty incurred for excessive fare taken on one trip, and damages for personal injuries for unlawful ejection from defendant’s cars on a subsequent trip, and defendant demurs to the complaint because, under section 484 of the Hew York Code of Civil Procedure, two causes of action have been improperly united:</p> <p>Held, that, under section 488, a cause of action for penalty cannot be joined with a cause of action for personal injuries, even when they are claims arising out of the same transaction; and, at any rate, the claims in this action cannot be considered as arising out of the same transaction.</p> <p>But section 484 should he construed to refer to cases of two or more good “ causes of action” well pleaded, and the claim for a penalty in this case being insufficient in form and substance, the complaint contains hut one cause of action, and that for personal injuries; and the demurrer should, therefore, be overruled, and the irrelevant matter in reference to the penalty should he stricken out.</p>

Appeal by the defendant Stokes from a judgment, entered upon demurrer and his omission to answer on leave which was given.

<p>Appeal by defendants Ernst Hopfensaok and Louis W. Heaba from an order of the special term directing, among other things, that the appellants deliver to the receiver herein the property of which they dispossessed the receiver on the 11th day of September, 1879, and that the fees, allowances and dues of the receiver be paid out of such property.</p>

<p>Writ of- prohibition — to what-extent can be used— Oode of Oml Procedure, section 3100—Excise commissioners—revocation of license.</p> <p>A writ of prohibition is a preventive remedy, not a corrective one. It can only be used to prevent the doing of an act about to be done, not as a remedy for acts already completed.</p> <p>The judicial proceedings of excise commissioners terminates when the ' board pronounces its judgment revoking a license, and the taking possession of the license is a ministerial act, to which prohibition will not lie.</p> <p>The provisions contained in section 3100 of the Code of Civil Procedure ‘ ‘ that the tribunal proceeded against may be directed to amend or vacate proceedings theretofore taken in the matter, applies only to interlocutory or mesne proceedings prior to the final decision.</p>

<p> Notice of pendency of action—Code of Ovoil Procedure, sec. 1670—actions which me embraced within the provisions of this section. </p> <p>Where the complaint, after reciting the necessary facts leading thereto, prays that the rights and interests of the respective parties in certain premises and appurtenances may he determined and adjudged, and that the premises may "be sold and the proceeds divided, claiming on behalf of plaintiff and another, that they are entitled to one-sixth of the net rents and income of the premises; and where the answer denies that either is so entitled:</p> <p>Held, that the action is one which is brought to recover a judgment affecting the title to and the use and possession of real property, and is. therefore, embraced within the provisions of section 1670 of the Code».</p>

<p> Referees’ fees in foreclosure actions—Turn to he taxed. </p> <p>The fees of referees in foreclosure actions must still be taxed under chapter 569 of the Laws of 1869, as amended by chapter 193 of the Laws of 1874, those enactments not having been superseded by the Code of Civil Procedure.</p>