Volume 62 — Howard's Practice Reports

<p>Easement— Bight of way—Buie of law as to.</p> <p>Where, after the owner of two adjoining premises, one being an extension in the rear of the other, had established a communication between the front and rear buildings, with an entrance thereto through the front building, the two buildings were sold upon foreclosure of mortgages, the defendant purchasing the front building and the plaintiff that in the rear, and then the defendant closed up the entrance in the hallway between the premises purchased by him and the rear building adjoining: Held (in a suit by plaintiff for relief), that the case is not one entitling plaintiff to equitable interference.</p>

Motion to compel the secretary of state to include the surrogate in his notice of officers to be elected at the coming general election in the city and county of Mew York.

Appeal by the relator from decision denying motion for a peremptory ma/nda/rrms to compel the secretary of state to include the surrogate in his notice of officers to be elected at the coming general election in the city and county of ¡New York.

<p>Mortgage upon a building, ‘‘machinery and effects”—what it includes— Words, “ejrndem, generis.”</p> <p>Where a mortgage was made of certain real property used for a sugar refinery, “ and. also all the machinery and effects in the said sugar refinery,” and was recorded as a chattel mortgage:</p> <p>Held, that the mortgage covered the sugar upon the premises.</p>

Motion to vacate the judgment entered February 19, 1881, and the execution issued thereon July 22, 1881, and for such other relief as might be proper, upon the ground that the said judgment was irregularly and improperly entered, among other things in this — that the order of the court made December 17, 1880, on the conclusion of the trial at the circuit, stayed all proceedings upon the verdict, until this decision of the general term upon the exceptions taken by the…

<p>Application by habeas corpus to relieve the petitioner, Owen Coughlin, from confinement in the Albany Penitentiary.</p>

<p>General assignment act—Preferred claims—General release—Judgments obtained after ^assignment—Report of referee under order to take testimony ' and report—!Irregularities in proceedings of. assignee in reference to accounting — Affidavit of service of the notice to creditors to produce their claims before the assignee—Rules of common pleas respecting such service —Authority of referee on reference to take and state am, account—Service by mail of citations — Authority of cou/rt as to service — Rights of creditors to notice and 7tkvring on application for reference— Costs and disbursements allowable under assignment act and Code of Civil Procedure, section 3240.</p> <p>Where S. made án assignment to P. for the benefit of creditors, and one of the creditors, who was both a preferred and general creditor, signed, under mistake!, a general release to both assignor and assignee, supposing it to be simply an agreement that the assignee be allowed to deliver to the assignor goods belonging to the assigned estate, so as to promote a composition or compromise between the creditors and the assignor, and the assignee objects to the claims of such creditor, because of such release, and refuses to allow the claims on that ground and also on the further ground that the said creditor had received promissory notes of the assignor on the execution of said release, which notes were dated subsequent to the assignment, and the release also recited another note representing the preferred portion of the creditor’s claim, but made and dated prior to the assignment; and the creditor obtained judgments on all the notes while the assignment was being executed, but was paid no money on account of either the notes or the judgments. The creditor meantime also procuring a judgment in a court of equity setting aside the said release as against the assignor on the ground of mistake, but not making the assignee a party to such equitable suit, and there being no evidence that the assignee was privy to the making of the release, but some evidence to the contrary:</p> <p>Reid, on motion of the creditor to confirm the report of a referee reporting in favor of allowing the claims of such creditor as good and valid claims, and that they have been established and should be paid out of the assigned estate. “ The referee’s report as to the claims of such creditor seems entirely correct and should be confirmed. ”</p> <p>So, where, on a motion by assignee to confirm, in whole or in part, a report by the same referee appointed to take and state the assignee’s accounts, there is an absence of proof of service of notice to creditors to produce their claims before the assignee, as prescribed by the rules of this court, and, secondly, where it appears affirmatively that the citation was not served upon certain creditors who had filed claims with the assignee:</p> <p>Reid, that the order of reference to take and state the accounts was entirely irregular and conferred no authority upon the referee; that the referee cannot cure this irregularity nor usurp the powers of the court. These creditors had the right to be heard upon the application for a reference, and neither the assignee nor any other person or court can deprive them of that right.</p> <p>'Reid, also, where it further appears from the papers submitted that the citation was served upon the creditors whom the assignee claims to have served by mail, and it does not appear that there was any authorization by the court that the service should be made in that way, that the report cannot be confirmed.</p> <p>Where, in a proceeding under the general assignment act by a creditor to establish claims as a general and preferred creditor, which have been disallowed by the assignee, the creditor prevails on a reference, the referee reporting to the court that the claims are valid claims and established, and that they should be paid by the assignee out of the assigned estate, and the court at special term, on motion, confirms such report qf the referee, with costs and disbursements :</p> <p>Held, “ the same costs and disbursements are allowed as to a successful plaintiff in an action, by the Code of Procedure, with five per cent allowance upon the amount reported due, with ten dollars costs of motion to be paid by the assignee out of the assigned estate.”</p>

<p>Motion for l new trial on the minutes.</p>

<p>Criminal law—Disorderly persons—Extent of the power of the recorder of the city of Cohoes to punish— Chapter 456 of the Loros of 1880, amending chapter 440 of the Laws of 1876.</p> <p>The prisoner was convicted “with having, on the 17th day of April, 1881, at the city of Cohoes, in said ” (Albany) “ county, together with Edward Ereely, been guilty of noisy, loud and tumultuous conduct, to the disturbance of the public peace and quiet and of the people, and of having used loud, abusive, vulgar and quarrelsome language, and was fighting and quarreling to the like disturbance of the public peace and of the people,” and upon such conviction was sentenced to an imprisonment of 859 days:</p> <p>Held, that by chapter 456 of the Laws of 1880, amending chapter 440 of the Laws of 1876, the recorder of the city of Cohoes had the power to condemn the prisoner to the terms of imprisonment to which he was sentenced.</p> <p>The punishment of the offense of which the prisoner was convicted is not specially prescribed by the general law of the state. It is one against the public peace not amounting to a felony, and is, therefore, a misdemeanor at common law and by the Revised Statutes, and as no special punishment is provided, is punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding $350, or by both such fine and imprisonment (See also Matter of Bayard, 61 How., 394, and Matter of Owen Coughlin, ante, 84).</p>

<p>IncumFi’ance upon pier—Action 6y the attorney-general for its removal— Foreign commerce.</p> <p>Where, in an action to compel the removal from an East river wharf of a building erected by the owner of the wharf for the exclusive benefit of his own business, and without a written license from the department of docks, it appears that the wharf has been used by the public as a highway and for the loading and discharging of sailing vessels engaged in foreign commerce and having a draft of more than eighteen feet of water:</p> <p>Held, that the building is an incumbrance, an interference with the dominant right of the public, and must be removed, and that the attorney-general has the right to bring the action.</p>

1. The defendant Michael Muck was during the years 1878 and 1879 the president of a German voluntary joint association, named in the complaint herein, consisting of about ninety members, who resided at Syracuse, New York, and who were jointly possessed of, interested in and entitled to, certain property accumulated by said society from initiation fees, dues aná assessments collected from the members. 2.

<p>Excise lorn— Chapter 628, Lams of 1857—Execution against the body valid without any teste — Pesidence — Person in jail for penalties for selling liquor not entitled to the liberties of the jail—Code of Cwil Procedure, sections 23, 24; 149, 1366.</p> <p>An execution isi valid without any teste.</p> <p>A person in jail! for penalties for selling liquors in violation of chapter 628 of the Laws of 1857, is not entitled to the liberties of the jail.</p> <p>Section 82 of this act, which provides that “the person or persons against whom judgment shall be rendered, shall not be entitled, under any execution issued on such judgment, to the liberties of the jail,” is not repealed by the Code of Civil Procedure.</p>

September 23, 1848, the defendant contracted a legal marriage with Catharine Murphy, at London, England, which still subsists. In the spring of 1849, the defendant emigrated to the United States. October 16, 1850, at the city of Elmira, he and the plaintiff entered into a marriage contract, and after-wards cohabited as husband and wife at that city, until 1860, when the first wife appeared at Elmira.

<p>Hotion by purchaser to compel the sheriff to amend certificate of sale, and for other relief, &c.</p>

<p>Action for j a perpetual injunction restraining the use by defendant of a trade-mark.</p>

<p>Costs — of t&)'m not to be awarded to plaintiff against defendant when, defendant has noticed case for trial, but does not move it when reached.</p> <p>The court will not compel a party who has himself noticed a case for trial, but for some reason does not move it, to pay costs to another party who has not put himself in the same position. By noticing a case he keeps for himself control of it at the circuit.</p> <p>If the plaintiff does not move after he has brought the defendant into court, he may be punished by a motion, under the Code, to dismiss the case for want of prosecution. But no similar remedy is given to the plaintiff where the defendant, having noticed the case for trial, does not move it when the case is reached upon the calendar.</p>

The Hew York Life Insurance and Trust Company on February 21, 1848, issued a policy for $5,000 upon the life of James S. Hull, for the sole use of his wife, Rachel Hull, and in the event of her death before her husband the amount of such insurance was made payable “to her children for their use, or to their guardian if under age.” Mrs. Hull died February 20, 1877, leaving two children—the plaintiffs herein — and three grandchildren, the issue of children who died before them…

Action to partition real estate located in the city of Albany. The plaintiff and defendants own it as tenants in common. The complaint was in the usual form.

<p>Stolen coupons—Title of true owner—Bona fide purchaser—Where the action is for equitable relief only, the judgment must he for equitable and, not legal redress—Foreign lam — Conflict in law.</p> <p>Where coupons of railroad bonds, which had been stolen in this country, were purchased after maturity in Prankfort-on-the-Main, and sent here for collection, and this action was brought by plaintiff, who owned the coupons at the time they were stolen, to restrain payment to the purchasers by the railroad company:</p> <p>Held, that under the law of this state, though there is nothing to impeach the good faith of the purchasers, that transaction, the coupons being over due, cannot avail to invest them with a title without the assent Qf the plaintiff, the true owner, from whom they were stolen; and her title to the coupons is unaffected by such purchase. The law and usage prevailing at Frankfort being in conflict with the law of New York upon this subject, the latter must prevail, the plaintiff and one of v defendants being residents of New York, and the property itself, the subject of the action, being brought within this jurisdiction.</p>

William H. Munday, as attorney for E. M. Rillings, commenced this action under section 30 of chapter 628 of the Laws of 1857, as amended, to recover the sum of fifty dollars, and charged that the plaintiff had, after notice to them that the defendant had violated the law, neglected or refused to sue for the penalty, and that thereby a right of action had accrued to said Rillings. The defendant asked that the plaintiffs, by said relator, be required to give security for costs.

<p>Examination of party before trial—When appeal does not lie from an order denying a motion to vacate order for such exarmination — Discovery of boohs and papers — when to be ordered — Oode of Oivil Procedure, secs. 803, 804, 805, 806, 807, 808.</p> <p>The plaintiffs, having obtained from one justice an order granting an examination of the defendants before trial, an appeal from an order by another justice denying a motion to vacate the first order is held not well taken, because the first order was conclusive until reversed or leave given to renew the application to vacate; and the fact that the order to show cause why the order for an examination should not be set aside, upon the return to which the order appealed from was made, was granted by the same justice who made the order for such examination, does not of itself amount to leave to renew.</p> <p>The plaintiffs obtained an order for discovery upon a petition alleging upon information and belief that defendants had in their possession certain letters and bills of lading relating to the goods mentioned in the complaint, and books of account containing entries relating to them, and that said books and papers related to the merits of the action, and their inspection was necessary to prepare the case for trial.</p> <p>Held, 1. That the possession by defendants of these books and papers, in the absence of denial by them, must be assumed; that if they exist, they would necessarily relate to the merits of the action, and that, therefore, a case is made out for a discovery, under section 803 of the Code.</p> <p>2. The defendants’ claim that no discovery can be ordered, except in the cases mentioned in rule 14 of the supreme court rules, is untenable, as by the provisions of section 804 to 808 of the Code, the general rules of practice may enlarge section 803 and the following sections, but they have no power to restrict the operations of those sections.</p>

<p>Bequest to charitable uses—Discretion vested in executors as to choice of bene- ■ ficiary — Parties.</p> <p>The testator, in his will, directed his executors “ to apply ” a portion of his estate “ to such charitable institutions, which are under Protestant management, as my said executors, or a majority of them who may act as such, may choose: ”</p> <p>Held (in this action to test the validity of this clause), that, though the question is one of difficulty, the bequest is valid, and should be enforced according to the directions of the testator; and the charitable institutions chosen by the executors from the class designated should be brought in as parties defendant (Power agt. Cassidy, 79 J¥. 7., 327, appUéd).</p>

” The defendant, upon the affidavit of John O. Day, which set out an agreement between the parties to arbitrate all matters and differences between them, applied for the stay. The plaintiff read his affidavit in opposition to the motion, in which he set out several new matters, and upon which he asserts the motion should have been denied. The defendant had no opportunity to answer the new matter so set out in plaintiff’s affidavit.

<p>Insolvent insurance company — Power of court to make allowance to counsel out of fund in receiver’s hands for services rendered in proceedings, which have for their purpose and effect the protection of the general fund, though brought in the name of an individual and for his own benefit.</p> <p>Where an attorney was employed by an individual to bring a suit or conduct proceedings against an insolvent insurance company, whose assets had been placed in the hands of a receiver, such proceedings having for their purpose and effect the protection of the general fund and assets of the company, and their concentration in such shape and under such control as should be for the benefit of all policyholders and others concerned in the same :</p> <p>Held, that the court has power to order the services paid for out of the funds in the hands of the receiver.</p> <p>The protection of trusts requires representative proceedings, and when neeessm'y and proper should be encouraged, and the court as the administrator of the trust has the power to compensate those who aid it in the discharge of their duty.</p>

<p>Order of anvest—Execution against the person—Validity of an execution against the person of one defendant, where an order of arrest had been granted against two defendants who were copartners, hut executed only against one— Oode of Oiml Procedure, section 1487.</p> <p>Where, in an action to recover money received, an order of arrest was granted against the two defendants, who were copartners, upon facts extrinsic to the cause of action set up in the complaint, and such order of arrest was executed against one defendant, and judgment was after, wards entered against the defendants and execution issued against the property of both, and then the execution against the person of the defendant against whom the order of arrest was executed was issued: Held, that such execution against the person was valid, notwithstanding the order of arrest was not executed as against both the defendants, and the execution issued did not run against both the defendants.</p>

<p> Ifill—construction of—Duty of trustees holding funds for investment for the benefit of minor children. </p> <p>Where, in a will, the testator directs his estate to be divided into a certain number of shares, and that one of said shares shall be held in trust to keep the same invested and to receive the rents, income and profits thereof, and pay the same over to the beneficiary named as they accrue and are collected, and the property devised by the testator is not invested in securities recognized by the rules of law applicable to investments by trustees, the trustee must sell and reinvest in accordance with such rule.</p>

<p>Contract—Law of place — Words “ & Go.,” when used by a person who has no parrtners—Illegal defense must be pleaded—Principal and agency— What ■pmounts to an abandonment of agency—Bights of principal.</p> <p>The plaintiff, a resident of Philadelphia and a publisher of books at that place, under a firm name of “J. M. Stoddart & Co.,” but having in fact no partner, entered into a contract under the name of “ J. M. Stoddart & Co.” with the defendant Key, at the city of Philadelphia, in respect to the canvassing for and selling by Key of the American reprint, of the 11 Encyclopedia Britannica,” in the states of Mew York and Mew Jersey. Key was to report to Stoddart at Philadelphia, from which place all the supplies were to be ordered and forwarded:</p> <p>Held, in an action brought in this state in favor of Stoddart against Key and others, founded upon the contract, that the contract was not void, under the statutes of New York, which forbids the carrying on of business by an individual in a firm name, or the use of the words “ & Co.” when it represents no actual partner {Laws of M. Y, 1833, chap. 281). As a general rule the law of the state, when contracts purely personal are made, must govern as to their construetion and validity, unless made in reference to the laws of another state in which they are to be performed.</p> <p>When it is claimed that a contract is void because made in violation of the act forbidding the use of the words “ & Co.,” when they do not represent an actual partner, the illegality must be set up affirmatively as a defense, and if not pleaded it cannot be urged upon the trial, when the fact appears, as a ground for dismissing the complaint {O’Zook agt. Qa/rmn, 1 Hun, 92).</p> <p>When an agent, under a contract regulating his services and compensation as a canvasser of books in process of publication, writes to his principal as follows: “I have determined to sell out and give up this business; if you want it, come or send on, and I will give you the figures which I will take; this is final: ”</p> <p>Held, that the principal was justified, after making a fair and reasonable proposition to settle, which was not accepted, and the good faith of the agent was reasonably suspected, under the facts and circumstances of the case, as stated in the opinion, in treating the defendant’s action as an abandonment of the agency, and in at once appointing another person in his place, and that a sale of'the list of subscribers, or an attempt to release them, made by Key thereafter, was invalid.</p>

Julia A. Shaw, as landlord, commenced summary proceedings against John McCarty, her tenant, to remove him and an under-tenant (who was also made a party to the proceeding) from the-possession of a hotel in Forty-second street, near Fourth avenue, in the city of ¡New York, upon the ground that they had violated the statute in reference to “illegal trades,” in this, that the tenant McCarty had knowingly sublet a portion of the premises, to an under-tenant to be used as a “…

<p>Pleading — Complaint—Demurrer—Improper joinder of causes of action— No answer to demurrer to say that such causes of action a/re not separately stated.</p> <p>Where a complaint in an action against an individual defendant and the city to recover damages for injuries from a fall caused by accumulations of snow and ice upon the sidewalk in front of certain premises alleges that it was the duty of both defendants to maintain the sidewalk in front of said premises free from incumbrances of ice and snow, and also alleges that they permitted a cellar extending under the street to remain open:</p> <p>Neld (upon demurrer), that as two causes of action are set out in the complaint — one for permitting ice and snow upon the sidewalk, and the other for injuries sustained by plaintiff’s falling into the cellar— and as the individual defendant is not, as matter of law, liable for accumulations of snow and ice, two causes of action are improperly joined.</p> <p>It is no answer to the demurrer to say that such causes of action are not separately stated.</p>

<p>Tenants in common— Conversion —Bight of one tenant in common of personal property to maintain trover against his cotenant— Objection to jurisdiction of county court—when it must be raised.</p> <p>One tenant in common of personal property may maintain trover against his cotenant for his undivided one-half of such property.</p> <p>Where the fact showed that the plaintiff was the owner of an undivided one-half of certain cattle, and that it was agreed as a part of the contract between the parties, that before the defendant moved away from the plaintiff’s farm the cattle should be divided between them, and they should not be removed until divided, and that afterwards, when the defendant’s contract was-ended and his term closed for occupying the farm, against the demands and requests of the plaintiff to divide the stock and distribute it in accordance with their agreement, the defendant drove the stock away to another farm whereto he removed, and after repeated requests by the plaintiff to divide the stock or to account to the plaintiff, or pay him for his share, the defendant refused and denied all the plaintiff’s right, interest or share in the stock, and denied that the plaintiff had any title to • the stock to which he was entitled to a division, and locked up the stock in his barn and converted it to his sole use, benefit and purposes, in denial of all the rights title and interest of the plaintiff, and that the defendant intended thereby to prevent the plaintiff from having any right, title, interest or share in the cattle:</p> <p>Held, that a case is made of such a conversion of the plaintiff’s interest in the stock, such a destruction or loss of his rights-and interests as would entitle the plaintiff to recover of the defendant in this action.</p> <p>The objection that a county court has not jurisdiction over the person of the defendant must be raised at the first opportunity, and is waived by his appearing in the action and pleading to the merits.</p>

<p> Notice of judgment—uihat is sufficient notice to limit time to appeal. </p> <p>Where a paper, which bears on its back an indorsement of the title of the cause and statement that it is a copy, “ certified order affirming order of reference,” to which is inscribed the name of the attorney for respondent with the number of his office, and is addressed to and served on the attorney for appellant, and upon the face of the paper appears the certificate of the clerk of common pleas that the paper is an extract from the minutes of the court, and that it is a copy of an order made at the general term of the court:</p> <p>jReid, that these statements show that the order has been entered, and entered in the office of the clerk of common pleas, and is such a written notice of judgment as will limit the time to appeal.</p>

<p>Deed—when its execution by a wife, through the misrepresentations of her husband, is void as to h&r dower rights — Negligence in executing papers without reading.</p> <p>The plaintiff, a married woman, executed without examination a trust deed with her husband to secure certain of his creditors, upon his representation that it was a conveyance, in form and substance, such as he had previously represented to her it would be, and to which she had assented, the fact, however, being that the deed included lands other than those he had proposed to convey and to which she had agreed : Held., that the deed, in so far as it affected the dower rights of the wife in such other lands, is inoperative and void, and that her rights remained the same as though she had not executed the deed.</p> <p>Also, that negligence is not to be imputed to the plaintiff in signing the deed without examination as to its contents, in reliance upon the representations of her husband {See S. O., 57 How. Pr., 310).</p>

<p>Banks — liability of, for stolen collaterals—burden of proof as to negligence —when court should direct a verdict instead of submitting questions to the jury.</p> <p>Banks who have in their possession collateral security for the payment of loans are called upon to take the same care that good business men or persons or corporations of their class ordinarily take of such bonds. They are liable for want of ordinary care.</p> <p>The burden of proof is on plaintiff to prove negligence, and failing to meet such burden plaintiff cannot recover.</p> <p>Although there may be found fragmentary evidence in favor of the party upon whom the burden of proof is imposed, yet if the testimony, assuming it to be true, and the inferences which may fairly be drawn therefrom are, in the opinion of the court, entirely insufficient to authorize the jury to find a verdict in favor of the party upon whom the onus of proof is cast, it is the duty of the court to direct the jury what verdict to render.</p> <p>Negligence is not necessarily a question for the jury, and when the evidence is too slight to justify a verdict in favor of plaintiff, the court-should direct a verdict in favor of the defendant.</p>

<p>Ext/ra allowance—to be allowed both upon the amount of the recovery and the amount of the counter-claim— Oode of Oivil Procedure, section 3253.</p> <p>In cases concededly difficult and extraordinary, section 3253 of the Code of Civil Procedure will authorize an extra allowance to the plaintiff not only upon the sum recovered in the action, but upon the basis of the defendant’s counter-claim determined against him. ■</p>

<p>Appeal from order of the special term denying motion for leave to continue the above entitled action.</p>

Action upon a note of $392.70. Appeal from an order of the Oneida county court, which by its terms permitted the defendant to serve “ an amended answer setting up such defenses as he shall be advised within twenty days upon the payment to plaintiff of the sum of fifteen dollars costs.” The motion of defendant in the county court was based upon a proposed amended answer containing the defenses of payment, breach of contract and four counter-claims of $1,000 each.

<p>The prisoner was indicted for an assault with intent to do bodily harm to one Michael Durand, the weapon used was alleged to be a horseshoe.</p> <p>The particulars of the assault are stated in the charge.</p> <p>The prisoner was a man about forty years old; in infancy he was injured in the head by a horse kicking him, a depression an inch long and half an inch deep existed in his forehead over his left eye, as the result of said injury. It was claimed that his mind was weak and when he drank liquor he became wild and delirious, and that this was his condition when he assaulted Durand.</p>

<p>Foreclosure of mortgage — Parties — Prior mortgagees — Merger.</p> <p>On June 15, 1865, B., who had previously given a mortgage to S., plaintiff’s testator, for $6,500 gave him another mortgage for $3,000 upon the same premises, and on the same day conveyed to him an undivided one-fourth part of the premises for $3,500. The deed recites that the whole premises are covered by the $6,500 mortgage and that one undivided half part is subject to an agreement to sell to S., dated in 1863 In 1867 B. conveyed to S. one undivided half of the premises, and on the same day the $6,500 mortgage was canceled. In 1874 B. executed a mortgage to defendant for $15,000, covering one undivided fourth of the premises. In this action to foreclose the $3,000 mortgage:</p> <p>Held, that it is a valid lien for its face upon the undivided one-fourth part of the premises which remained in B., and that the judgment in defendant’s action to foreclose his mortgage does not affect the plaintiffs’ lien in this action.</p> <p>Prior mortgagees are not necessary parties to an action of foreclosure, but sometimes they are proper parties.</p> <p>Whether an inferior security is merged in one of a higher character depends upon the intentions of the parties; and when justice and equity require that it should be distinctly kept alive it will not be regarded as merged.</p>

Proof of service upon the defendant of the order to show cause was duly made.

I. Motion by assignor Dart to set aside an order previously obtained for Ms own examination on the grounds that the court had no jurisdiction to grant the order; that it was made and is returnable before judge Joseph F. Daly, and could not be heard before any other judge; that the examination concerned a trade-mark not embraced but excepted by the assignment; that the proposed examination was not limited and not in aid of the assignee. Motion denied. II.

<p>Albamy Medical GoUege — Appointment and removal of a professor — Legality of meeting of boa/rd of trustees — Mandamus.</p> <p>“The Albany Medical College” was created a corporation by and organized under chapter 26 of the Laws of 1839. The board of trustees is composed of twenty-five persons, and by section 4 of the act such trustees are authorized “to appoint the professors and such other instructors as they may deem necessary, subject to a removal by a vote of two-thirds of the members constituting said board, when found expedient and necessary.” The relator was, on February 8, 1876, duly-appointed a professor, which position he accepted and continued to discharge its duties until January, 1880. On January 2, 1880, a meeting of the trustees was held at which the professorship which the relator held was abolished by a vote of fifteen to four, nineteen members only being present. The only notice of the meeting was by postal card addressed to each of the trustees. By the statutes of this state {ml. 1 of Ednji. ed., page 406/ ml. 2 of 6<7t ed., page 12) it is provided : “The trustees of every college to which a charter shall be granted by the state shall be a corporation.” Provision is then made for the meetings of trustees, and it is enacted : “Notice of the time and place of every such meeting shall be given in a newspaper printed in the county where such college is situate, at least six days before the meeting ; and every trustee resident in such county shall be previously notified, in writing, of the time and place of such meeting.” On mandamus to compel the college to reinstate the relator :</p> <p>Meld,, first. That the provisions of the statute above quoted do not refer exclusively to “literary colleges,” but are applicable to every college, and consequently the meeting of the trustees, at which the relator’s professorship in the medical college was abolished, was illegal, because notice of such meeting was not published as required by statute.</p> <p>Second. That though the act attempted to be done is called the abolition of the professorial chair, its effect being to remove the relator from office, the provision of the charter requiring a two-third vote was applicable.</p> <p>Tim'd. That the acceptance of the relator’s services for four years as a professor cured the irregularity of the original appointment, if any there was.</p> <p>Fourth. That mandamus is the proper remedy.</p>

<p> Criminal law—M-orn what time a sentence to imprisonment takes effect. </p> <p>A sentence to imprisonment takes effect only from the first day of actual incarceration, and not from the day when sentence is pronounced.</p>

<p>Action—by a cestui gue trust under a will against the trustees appointed thereunder for an accounting and for removal of one of them—Answer— Demurrer to answen' — a detailed statement of facts in answer by which a certain conclusion is reached, though set up as separate defenses are not good grounds of demurrer— The provisions of Devised Statutes in relation to uses and trusts do not apply to trust sj personal properly— Oounter-claim, set up.in answer good as against demurrer, if it tends to diminish or defeat recovery.</p> <p>Where plaintiff, as a cestui gue trust under a will, brings suit against the two trustees, appointed thereunder for an accounting and for the removal of one of them, alleging that defendants "were directed by the will to invest $40,000 and pay her the income for life, and that they paid her for several years various sums, represented to be such income, but that they had, since April, 1879, refused to make such payment:</p> <p>Sold, that as defendant’s denial in his answer, that he ever received the $40,000 referred to, from the estate, raises an issue as to plaintiff’s right to demand an accounting, and his removal as trustee, the detailed statements of facts by which such conclusion is reached, though set up as separate defenses, are not good grounds of demurer. If found expíetive or redundant, they should he expunged hy motion. And as plaintiff, by her demurrer to such statements of fact, admits that she and her mother received $10,000 under a mistaken interpretation of said will, for her fair share or proportion of which she is liable to the defendant, and that for the purpose of securing payment of such liability, she and her mother assigned to defendant their share in the estate, by virtue of which defendant counter-claims the moneys advanced by him, such counter-claim being allowable under section 501 of the Code, and the trust fund in dispute being personal property, the provisions of the Revised Statutes in relation to uses and trusts do not apply ; and such fund being therefore answerable under certain conditions of fact, to the claims of a creditor, though the counter-claim, as pleaded, may not, if proved, entitle the defendant to a judgment on the trial, yet the demurrer should be overruled, as such counter-claim may tend to diminish or defeat the plaintiff’s recovery.</p>

The action was for trespass and damages. Plaintiff was a fresco painter and defendant was his landlord and occupied adjacent apartments to those of the plaintiff. On the day in question he left his premises as usual in the morning, closed the window and locked the door, leaving his sketches, drawings and materials in his rooms.

The complaint alleged that the defendants were attorneys and connselors-at-law, and that the plaintiff had commenced an action in the court of common pleas for the city and county of Mew York against one John Raab and others, and that the defendants appeared and answered as the attorneys and counselors of said Raab and forty-one other defendants in that action.

<p>Demurrer to complaint.</p>

<p>Appeal from an order denying motion to place the cause on the special circuit calendar, for the reason that the plaintiff had not served a reply.</p>

<p>Limitations, statute of— Action against city for damages for injuries sustained from falling upon crosswalk try reason of accumulation of ice and snow — What period of limitation applies— Code of Civil Procedure, sections 382, 383.</p> <p>In a suit against the city for damages for injuries sustained from falling upon a crosswalk in which the complaint alleges that defendant, notwithstanding it was its duty to keep the streets in good order and repair and not to suffer the ice or snow to remain in such condition on the crosswalks as to make it unsafe and dangerous for foot passengers, had improperly, carelessly, negligently and unlawfully suffered ice and snow to remain upon the crosswalk where plaintiff fell, in such a condition as to render it dangerous for ordinary use:</p> <p>Held (upon demurrer to answer setting up statute of limitations), that subdivision 5 of section 383 of the Code of Civil Procedure prescribing a limitation of three years for actions based upon negligence does not apply, and that defendant’s alleged neglect in suSering ice and snow to remain on the crosswalk so as to be unsafe and dangerous to foot passengers was a wrongful act within the purview of section 383 prescribing six years as a limitation to actions arising for such cause.</p>

Motion to dismiss appeal for irregularity in failing to execute and file a proper undertaking on appeal as required by the Code of Civil Procedure, or making a deposit in lieu thereof.

<p> Rtf erees—When three may he appointed. </p> <p>It seems, that in a proper case the court has the power and will direct the same to he tried before three referees.</p>

<p>Appeal from 'justice's judgment— When and how taken— Notice of appeal from justices' court to county court — How to he signed — Oode of GvoU Procedure, sections 2886, 2890, 3046.</p> <p>Where a notice of appeal from the judgment of a justices’ court was dated June 17, 1881, was signed “O. E. Howe, appellant’s attorney,” and was served with an undertaking in due form to stay execution, signed and acknowledged by the appellant in person:</p> <p>Held, that was sufficient.</p> <p>The notice of appeal is a mandate of the county court, is properly entitled therein, and governed by the same general principles as other proceedings in a court of record. A party may sign it as attorney in person, adding office address or place of business, residence or other place where papers may be served upon him as required by Rule 2, general rules of practice, or by an attorney-at-law, and cannot be signed by an attorney in fact or an agent as such.</p>

By an order of special term defendant was adjudged guilty of contempt for the violation of an order dated October 7,1878, enjoining him from interfering with plaintiff in her possession and occupancy of a house, &c. It appeared that plaintiff brought an action against defendant for a limited divorce; that said order was granted therein; that on October 7, 1880, a final judgment, was entered in said action in favor of plaintiff granting a divorce and alimony but no mention…

<p>Deed absolute when not a mortgage — Conditional sale.</p> <p>The plaintiff, who was building seven houses in Fortieth street on which defendant B. had loaned money upon mortgages, conveyed, in February, 1874, two of the houses to A., for a consideration of $10,000, subject to three mortgages aggregating $59,000. A. soon after took possession and completed the two houses at his own charge, and then one of the houses was sold under foreclosure of one mortgage, and B., in the end, acquired title thereto. Afterward A. sold the other house to B., who is now the .owner of the entire property. The plaintiff, who had not previously claimed the property, brought this action in 1880 to have the deed of 1874 declared to be a mortgage security, asserting, though there was no contemporaneous writing to that effect, that it was given as collateral for the loan, the houses to be sold when finished, and the $10,000 repaid with interest. This defendant A. denied, and testified that the conveyance was absolute, with the conditional right in plaintiff to effect a sale of the houses which would completely reimburse him (A.) at any time within eight months:</p> <p>Held, that the deed was not intended as a mortgage, but as representing an actual sale, and the privilege extended to plaintiff to find a purchaser for the property never having been complied with, she lost all right or interest in the property.</p>

<p>Sheriff—Liability of, for not retu/rning execution—Sheriff’s return not conclusive as to amount collected—Appeal— When arid how interlocutory judgment reviewaMe — Failure of proof as to plaintiff being a corporation — Time to make objections as to.</p> <p>Where, in an action against the sheriff for damages for neglecting to return an execution within sixty days, the court, upon the trial, gave an interlocutory judgment in favor of the plaintiff on the pleadings, and sent the cause to another branch of the court that the plaintiff’s damages might he assessed:</p> <p>Held (reversing judgment for plaintiff), 1. That the interlocutory judgment is reviewable upon this appeal, notwithstanding the defendant, in his notice of appeal, did not mention the interlocutory order, because the Code which was then in force did not require any such specification to review interlocutory judgments or intermediate orders.</p> <p>2. As the complaint, which alleged that the plaintiff “isa corporation duly created and existing, doing business in the city of New York,” did not aver that the plaintiff was a corporation created under a statute of New York, and the answer put in issue the existence of the corporation, proof should have been given of the corporate character of the plaintiff.</p> <p>3. The allegation of the complaint that the plaintiff had recovered a judgment against one Wilson being denied by the answer, and the fact being essential to the existence of the cause of action, the court erred in directing judgment on the pleadings.</p> <p>Balt, O. J. (dissenting), holds: 1. That as it appeared the sheriff on receiving the execution levied on the property of defendant, and all proceedings were stayed five days thereafter, and that after the stay was removed he had a month and twelve days before the sixty days expired, that was ample time within which to sell the personal property levied upon and make his return; and for failure to do so he was liable to plaintiff.</p> <p>2. The sheriff’s return is not conclusive as to the amount collected.</p> <p>3. The time to make objection as to failure of proof that plaintiff was a corporation and that the execution was founded upon a valid judgment, was when the motion was made for judgment upon the pleadings.</p>

The plaintiffs have brought suit in the supreme court against John W. Hamlin and F. FT. Hamlin to restrain the defendants from harassing them by alleged groundless litigations in other states, and to compel the Hamlins to submit all matters in controversy to the court in the present action. F. FT. Hamlin and Robert W. Hale (now dead) were, in 1871, copartners in business in Chicago and were burned out by the great fire of that year.

The action was upon a bond of indemnity signed by the defendant and given to the sheriff. The levy and sale under the execution issued upon the judgment mentioned in the instrument .was had before the bond was. given. Actions were brought against the sheriff for the taking and sale of the property and recovery had.

Motion by plaintiff to continue the injunction enjoining the common council from passing over the mayor’s veto the resolution changing the route of the Bruff railway.

<p>The law of excheat— Complaint—Demwrrer— Claims against equity.</p> <p>An allegation in a complaint that B. died seized of lands, intestate, unmarried and without issue, leaving him surviving a father, an alien, who died intestate and without living descendants, whereby the land escheated, is not, on demurrer, a sufficient allegation to make it affirmatively appear that the father died without heirs having legal capacity to take.</p> <p>It is the settled law of this state that descent between brother and sister is immediate, notwithstanding the alienage of the parent, and, therefore, the allegation in the complaint that the lands escheated was an unauthorized conclusion.</p> <p>B., being seized of lands in fee, mortgaged them to C. The lands were afterwards conveyed to D., who died unmarried, intestate and without issue, leaving him surviving a father, an alien, who also died intestate without leaving descendants. Afterwards, in 1843, the mortgage was foreclosed in chancery, but the state to whom it was alleged the lands had escheated were not made a party. The legislature released the property to the plaintiff, who brings suit to redeem against the holders under foreclosure, who have been in undisputed possession for thirty-eight years. No notice of the application to the legislature was given the defendants as required by Laws of 1829, chapter 259:</p> <p>Held, that the plaintiff shows no ground of equitable relief. A court of equity should not lend its aid in furtherance of such a claim.</p>

Motion by defendant to strike out the costs of appeal inserted in a judgment of affirmance, on appeal from a judgment of a justice’s court to the general term of the supreme court. The facts are fully stated in the opinion. ‘

<p>Contract—Quantum meruit—Evidence — Memoranda—when admissible —Entry in boohs*—Proof of facts entered— Trial— Questions far a jury.</p> <p>On a trial before a jury the question as to the admission of a memorandum book, like any memorandum resorted to, to, aid or correct the memory, which, without it, would be indefinite and uncertain, is not whether it was admissible as the case stood when it was offered and received, but it may be received with reference to other evidence after-wards to be submitted.</p> <p>Where the plaintiff swears that he had a memorandum book kept by Gr. ; that he was unable to keep it; that when money was paid him he took the book to G-., who entered it; that he gave the items of money paid him to G. correctly; and the latter swears that he made the entries on the book correctly as the sums were given him:</p> <p>Meld, that this was a verification of the book as a memorandum in aid of the memory, rendering it definite and certain as to the money paid.</p> <p>Meld, also, that this evidence, thus made certain in its effect, is admissible.</p> <p>Held, further, that where it was proved that the book was drawn off on a paper in the form of an account, and what the book contained was put upon this paper, thus making a sworn transcript of the book, and that this account was furnished to the defendant, and after he had examined it he said, " I find it pretty correct.”</p> <p>Held, that this evidence rendered the book competent as a memorandum, for the defendant had in substance admitted its correctness by admitting the correctness of a verified copy.</p> <p>Although the evidence of the defendant tended to a contradiction of these admissions, yet in this view the entire evidence, including the book as a verified memorandum, was proper for the consideration of the jury.</p> <p>Where, upon the close of the case, the plaintiff’s counsel suggested that the accounts of the plaintiff, which was the sworn copy of the book and the memorandum used by the defendant while testifying, should be delivered to the jury; and the judge stated that if neither party objected they could be so delivered, and no objection being made, the same were handed to the jury:</p> <p>Held, that this was in effect a consent that the account, which was shown to have been taken correctly from the book, might go before the jury on the occasion of their deliberations, and took away all just ground for the objections that the book was improperly admitted, if any such ground before existed.</p>

<p>Excise law—Requisites of complaint and proofs to entitle party to use the names of commissioners of public charities and corrections in the prosecution of actions for penalties under theactof 1857, chapter 628, section 30—What is reasonable proof.</p> <p>These actions were commenced by one R., under section 30 of the act of 1857 {chap. 628), which, in substance, provides that in case the overseers of the poor (in this county, the plaintiffs), whose duty it is to prosecute for any penalty incurred under the act to suppress intemperance and to regulate the sale of intoxicating liquors, shall neglect to prosecute for the period of ten days after complaint to them that any provision of said act has been violated, accompanied with reasonable proof of the same, that then any other person may prosecute therefor in their names, claiming that he had complied with the statute and that the commissioners had failed to perform their duty, and that he thereby acquired the right to use their names as plaintiffs. The commissioners base their omission to prosecute upon the insufficiency of the complaint and the proofs which accompanied it. From these proofs it appears that the complainant, who is a resident of Brooklyn, annexed to and made part of his complaint a printed copy of the City Record, containing the names of all the licensed liquor dealers of New York, about 9,000 in number, and all of these persons were charged in a general way with every conceivable violation of the excise act. R., the chief witness, resides in Richmond county, and two other persons named as witnesses are said to reside in the city of New York, but they fail to disclose their occupations, places of business or residence.</p> <p>Reid, that the relator, R., has not brought himself within the statute, that he has neither served the complaint nor furnished the proof required thereby, and that he had no authority to bring any action in the names of the plaintiffs founded on said complaint or proofs.</p> <p>The complaint filed with the commissioners is not only unreasonable, but impracticable, and does not satisfy the requirements of the statute.</p> <p>In such case the commissioners have the right to move to discontinue or dismiss the actions.</p>

<p>Will— Construction of—Authority of executor under the will to sell and convey real estate — Specific performance.</p> <p>The plaintiff, as vendor, sues for the specific performance of a contract by defendant for the purchase of real estate sold by plaintiff, as executor of the two estates of Eliza and Maria, daughters of Henry Mott. By Henry Mott’s will, his estate, real and personal, was vested in trustees. In distinct clauses, he directed them to “ stand seized and possessed of one-third part thereof,” upon trust for the use of each of three daughters, “ during her natural life,” and if she “ shall be single and unmarried at her death,” then “upon such trust, and for such purposes as she shall or may appoint by her last will.” The daughters died without issue, and each were single at her death. Maria, the last survivor, was a widow, and neither of the others had ever married. Eliza and Maria each left a will giving a power of sale to her executors.</p> <p>Held, that plaintiff, as surviving executor of Eliza and Maria, respectively, had authority to sell this real estate, and by his deed as executor to convey a good title to the purchaser.</p>

<p>Municipal corporation — agreement by—Their power as to widening public streets— Court no power to review discretion of common council— common' council’s sole right to decide questions of pa/rliamentcory law — what interest of member not sufficient to make his vote void.</p> <p>No valid agreement can be made by the official representative of a muni-' cipal corporation which will, on a measure of public policy, bind their successors.</p> <p>A common council has the sole right to decide all questions of parliamentary law.</p> <p>A motion for a reconsideration of a vote upon the passage of a resolution, after a declaration by the presiding officer that it was lost, does not invalidate the vote taken upon it. If the resolution has been lost it is competent for the body to introduce it anew and pass it, and the mode, therefore, of changing their first action is entirely within their control. The supreme court has no power to review the discretion of a common council as to the necessity of widening a street, and taking the property of an individual for that purpose.</p> <p>That a certain alderman would be benefited, together with the general public, by the widening of a certain street, does not make his vote as to such widening void. ^</p>

<p>Insurance (Life)—Policy for me of wife non-assignable—Policy changed to paid-up policy does not change its clwracter— Transfer though made in another state not valid here.</p> <p>A life policy which, as originally issued, was declared to he for the use of the wife of the insured, is not changed in its character by being afterward changed to a “paid-up” policy; and being non-assignable under the laws of the state during the life of the insured, any transfer of the widow’s interest in it, though made in another state, could not be deemed valid here.</p>

Motion made by defendant to vacate an order referring the issues in this action to a referee, and appointing a receiver.

Motion by Charles Q. Quann, one of the defendants, for a new trial on the minutes. The action was brought to recover damages for a slander uttered by the wife of Quann, and he was joined with her as defendant. The jury returned a general verdict in favor of the plaintiff. The facts are fully stated in the opinion.

<p>Will— Trustee to sell land and invest proceeds — Discretion of trustees as to time to sell and invest.</p> <p>The testator, by a clause of his will, directs his executors, after paying certain debts and charges, to divide the residue of his estate into eight equal shares, and invest the same separately each of eight children to have the income of one share for life, the principal sum, upon the death of each child, to go to his or her issue; and in the closing part of the clause the executors are authorized to lease the real estate, and after the death of his wife to sell and convey the same for such prices and upon such terms as they might deem best for the interests of his estate. In an action by one of the children, after the death of the widow, against the sole surviving executor, to compel him to make the division or sale and investment provided for in the will:</p> <p>JBeld (overruling demurrer to complaint), that the selection of a proper time for the execution of the trust is not within the discretion of the executor; that the trust to divide, invest and sell constitute an equitable conversion of the realty into personalty from the death of the widow; and the trustee should at that time, in the execution of the trust, get the best prices in the disposition of the realty, and that will meet the exigencies of the will.</p>

<p>Unlawful acts— When successive actions for cannot he maintained— When action harred hy former recoveries.</p> <p>A plaintiff can have hut one suit growing out of a single cause of damages, and after a recovery in an action for an injurious act no action can he maintained on account of any further consequences occasioned by that act. Damages for a single wrongful act can be awarded but once, and in one suit only. When sued for such wrongful act the plaintiff may1 recover his damages caused thereby, both past and prospective; that is, he takes his equivalent for the entire injury in damages. He cannot split, up his damages and have separate and independent recoveries.</p> <p>A judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings upon which it is rendered, whether the suit embraces the whole or any part of the demand constituting the cause of action. An entire claim arising, either upon a contract or from a wrong, cannot be divided and made the subject of several suits, and if several suits be brought for different parts of such claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in "either will be available as a bar in the other suits.</p> <p>Where A. had recovered against B. in his former actions the damages to which he was entitled for all unlawful acts committed by him against A.’s rights prior to October 15, 1875, which acts were the removal of and injury to A.’s pipe leading from a spring to his dwelling and outhouses, and the consequent interruption of the flow of water through it to his premises; and, by the judgment'in the first action, he was awarded a perpetual injunction against B., restraining the latter from in any way interfering with such pipe. Prior to the recovery in the former actions, and in 1872, A. attempted to replace and repair the pipe, and was prevented from so doing by B., but no such attempt was thereafter repeated until in the spring of 1877, when no opposition was offered; nor did the defendant since 1872 at anytime or in anyway interfere with the plaintiff’s rights as they were ultimately established by the judgment of the court in those suits. The second action was commenced' October 15, 1875. In a third suit brought by A. a judgment was awarded against B. for damages which occurred between October 15, 1815, and the 1st day of May, 1877, by reason of the defendant’s wrongful act in removing the pipe from the spring and preventing A. from repairing the pipe:</p> <p>Held, that such recovery could not be sustained. These causes of damage, and each of them, were especially commented on in the former actions, and damages were awarded in both suits. Those recoveries must be presumed to embrace all damages to which the plaintiff was entitled growing out of those wrongful acts, past and prospective, and the present recuvery is barred by the former.</p>

<p> Besponsibüity of sheriff—Liability as bail. </p> <p>Where a defendant, after arrest, has been allowed to go at large after giving an undertaking, the sheriff becomes liable as bail until the sureties in the undertaking justify and are approved by the court.</p> <p>Where at the time a supersedeas is granted, the defendant is still at large and the sureties have not justified, the sheriff is still liable as bail and can only be exonerated from that liability in the same manner as ordinary bail.</p> <p>Although the supersedeas might have been a protection to the sheriff as ' long as it remained in force, yet, when the court, at general term, reversed the order allowing the supersedeas, the liability of the sheriff as bail revived.</p>

<p>Criminal law—Party convicted before justice of the peace in Albany county "as a disorderly person,” may be sentenced to Albany penitentia/ry—Code of Criminal Procedure, section 903 — Provisions as to punishment of disorderly persons in Albany county — Laws of 1844, chapter 152; Laws 1847, chapter 183, not repealed by this section.</p> <p>A special local statute is not repealed by a general statute, unless the intent to repeal is manifest, although the terms of the general act would, but for the special law, include the cases provided for by the latter.</p> <p>Chapter 152 of the Laws of 1814, which establishes the Albany penitentiary, and chapter 183 of the Laws of 1847, amendatory thereto, and which require a person convicted before one of the justices of the peace in and for the city and county of Albany of being a disorderly person and sentenced to hard labor, to be sent to such penitentiary, are still in force and unrepealed by the Code of Criminal Procedure.</p> <p>Therefore, notwithstanding the provisions of section 9u3 of the Code of Criminal Procedure, a person convicted before and by one of the police justices of the city of Albany of being a disorderly person, may be sentenced to imprisonment in the Albany penitentiary at hard labor, instead of being committed to the Albany county jail.</p>

The plaintiffs made a motion for a new trial upon the minutes, on the grounds prescribed by section 999 of Code. Judge Gtoepp decided to grant it with a stay pending appeal. Final order granting the motion was entered of June fourth. On order to show cause of June seventh, procured by defendant, upon same papers, the judge entered an order, June fourteenth, that the order of June fourth be in all respects vacated and the new trial denied, with ten dollars costs.

Appeal by plaintiff from order directing a stay of proceedings in this action until the determination of an action in the United States circuit court for the district of California.

This is an appeal from an order made at special term, directing the respondent, Joseph Husson, as an attorney of the court, to restore to the petitioner, Catharine Eaymond, a certain mortgage unimpaired which had been satisfied by the petitioner at the request of Husson, or pay the sum of $3,280, being the amount of said mortgage with the interest thereon, and the further sums of $250, as counsel fee, and $112 referee’s fees, and in default thereof the respondent be punished…

Action to recover for professional services. The answer sets up two defenses, settlement and an agreement by plaintiff’s attorneys to charge defendant no costs if a certain amount was paid. The answer was defective and a motion was made at special term, held at Syracuse, to strike out portions of the answer on the ground that they were not separately stated and numbered, and also on the ground of immateriality and redundancy, and for judgment on the pleadings.

<p>Counsel employed Try attorney to a/rgue demurrer—scope of Ms authority. _</p> <p>"Where a counsel, employed by the attorney of defendant to argue a demurrer to the complaint, omitted to appear when the case was called, such employment did not authorize him to make a verbal stipulation, for the purpose of procuring assent to the opening of his default, that the decision upon the demurrer should be final in the case; and even were the stipulation within the terms of the counsel’s authority, the defendant should be allowed on terms, upon a proper case shown, to serve his answer.</p>

The complaint alleged that one Adam Muller was seized in fee simple of certain premises in the city of Hew York; that he died leaving a will wherein he devised to his children and heirs in common, among other property, the premises • described in the complaint, subject to the interest of his widow to the share of rents and income as provided by said will.

This appeal was brought from two several orders made by justice James B. Sheridan on the 16th and 22d days of June, 1881, respectively; the first denied defendant’s motion to open his default, with ten dollars costs; the second denied defendant’s motion to vacate and set aside the first mentioned order, with ten dollars additional costs, and vacating and setting aside the stay of proceedings granted in the action.

<p> Amendment—Demurrer—Answer—right of defendant to amend demurrer by answer. </p> <p>A defendant who has demurred, but has not allowed his time to amend of course to pass, has a right to withdraw his demurrer and serve an answer instead, without leave of the court.</p> <p>In such case the answer must be regarded as an amendment of the demurrer.</p>

<p>Associations — Voluntary or incorporated—When amenable to chapter 356 of La/ws of 1881, and not to the general inswance statutes of the state — Injunction—When and to what extent may be vrmohed against a state ofpeer.</p> <p>The plaintiff is a’ corporation duly organized and formed under the laws of the state of Indiana, and its legal location is in the city of Indianapolis in said state. It commenced business in this state October 2, 1880, eight months previous to the adoption of chapter 256 of the Laws of 1881. Among the objects of the plaintiff’s organization is the establishment of a “relief fund from which members of this association who have complied with all its rules and regulations may receive a benefit on a sum not exceeding three thousand dollars, which shall be paid either when a member reaches the age of seventy-five years, or when, by reason of disease or accident, such member becomes permanently disabled, or upon his death. ” The resources of the plaintiff are derived entirely from voluntary donations and admission fees, dues and assess- • ments from members and the interest thereon. The plaintiff claims the right- to do business in this state, and seeks to enjoin the defendant, the superintendent of insurance, from interfering in any way with its operations, insisting that he has wantonly and maliciously sought to interrupt its operations and business :</p> <p>Meld, that the plaintiff is amenable to the Laws of 1881 and not to the .general insurance statutes of the state, and that the article of its by-laws which provides for the payment of a benefit to a member upon his attaining the age of seventy-five years, is one rendered proper by the occurrence of a physical disability of a member within the true intent and meaning of these words as used in the act aforesaid.</p> <p>Held, also, that as the plaintiff has complied with all the requirements of the act of 1881, it is entitled to carry on its operations in this state unmolested by any improper interference from the defendant or any other person.</p> <p>Held, further, that it is not the office of an injunction nor the prerogative of the court to dictate to an officer of the state his views as to the proper construction of a law. He can only be compelled to do what the law commands him to do, or be restrained from doing an act to another’s injury which he has no power to do, but he cannot, by injunction, be prevented from expressing in a lawful and proper manner his views of the legality of a business when he is actuated by no malice or evil intent.</p>

<p>Imprisonment for debt—Attorney’s lien for costs—Right of attorney for a defendant to imprison plaintiff to collect his costs — Code of Civil Procedwre, sections 66, 549, 1487.</p> <p>Under the Code of Civil Procedure in an action in which the defendant is liable to arrest, and in which the plaintiff is unsuccessful in his suit, the latter may be arrested and imprisoned by the defendant’s attorney on a claim for costs.</p> <p>And this is true, although the plaintiff did not exercise his right to arrest the defendant, and although he may have a perfectly good case, but loses his suit on a mere technicality.</p>

This motion is made for the purpose of compelling the purchaser to complete his purchase on the sale under the decree entered in this action. The facts in the case are as follows: In April, 1878, this action was commenced by the plaintiff against the defendant, Felix Boylan and others, to forelose a mortgage upon the premises described in the decree in this action. A lis pendens in said action was duly filed in the office of the clerk of the city and county of Hew York.

<p>Elevated railroads—Rapid transit act—Raws of 1875, chapter 606 — Conditions precedent to construction— Compensation to owners of property taken —Rights of abutting owners.</p> <p>The supreme court has the power and it is their duty to review the report of commissioners appointed by the general term, pursuant to the provisions of the rapid transit act of 1875 (sec. 4), upon the facts, and, after a consideration of ail the circumstances, to determine the question whether private rights and interests should be yielded for the sake of the public good.</p> <p>No man’s property should be taken for or injuriously affected by the construction or operation of an elevated railroad, except upon the condition that compensation for all damages sustained by him thereby should be made.</p> <p>Ample protection against direct invasions of the rights of private property is afforded by the constitution. It cannot be taken for public use without compensation.</p> <p>But it seems a mooted question whether owners of property which merely abuts upon the street, and not actually taken by the railroad corporation, although injuriously affected, are protected by the constitutional provision referred to.</p> <p>The right to construct elevated railroads in streets should be made to depend upon their providing a suitable and sufficient indemnity to abutting owners against any damages which they may sustain thereby; or, if they may justly be deemed too onerous, then provision should be made by law for such indemnity in some other mode. Until such indemnity, in a suitable form, shall have been provided, the right to construct should be denied.</p>

<p> Criminal lam—T&rm of imprisonment—from what time sentence begins to run. </p> <p>On convictions for misdemeanor the sentence begins to run from the day it is pronounced, and the time the prisoner is detained in the county jail is to be credited upon the sentence. (This seems to be adverse to People ex rel. King agt. McEwen, ante, 226.)</p>

Motion on behalf of the defendant to remove an indictment from the court of sessions of Albany county to the court of oyer and terminer of the same county.

<p>National banks—jurisdiction of state cou/rtin actions against—Attachments against national banks of a foreign state — who may move to vacate — Code of Civil Procedure, section 682.</p> <p>A receiver of a foreign national bank, though not a party to the action, has such a status, under section 682 of the Oode of Civil Procedure, as will authorize him to move to set aside attachment proceedings.</p> <p>There is nothing in the section which requires the applicant to become a party to the action. It is the practice to allow such motions to be made without imposing upon the applicant the condition that he shall ask to he made a party to the action in which the attachment was issued. Although the supreme court of this state has jurisdiction over an action ex contractu brought by a citizen of the state against a national bank located in another state, an attachment which has been issued in such action against its property in this state will be vacated upon positive proofs of its insolvency.</p>

The action was begun on November 18, 1878, by Thomas Vernon, David Scott and George E. Vernon, copartners, forming the firm of Vernon Brothers & Co., against the defendant as a trustee of a manufacturing corporation, under the law of 1848, of which corporation the plaintiffs were creditors.

<p>Action—Bight of attaching creditors to remove fraudulent obstructions to the due execution of process— Complaint—When not mvltifmious—Injunction — Code of Civil Procedure, sections 603, 604, 619.</p> <p>Where the allegations of the complaint showed that plaintiffs have a lien by attachment on a certain stock of goods of defendant, Samuel Plonsky, which lien was acquired December 24, 1881, and still is in force. That on December 13, 1881, Samuel Plonsky made a general assignment to Eli M. Cohen, who claims the said attached property and has notified the sheriff of such claim ; that in said assignment the defendants Anna, Ezekiel and Moses Plonsky are preferred creditors; that the assignment is fraudulent and void, and part of a fraudulent conspiracy between the defendants, and that the preferred claims are wholly or in part fictitious ; that on December 23, 1881, notwithstanding those preferences, the defendant, Samuel Plonsky, confessed judgments to each of the defendants Anna, Ezekiel and Moses Plonsky upon the same debts for which they are preferred in the assignment. Executions were on that day issued to the sheriff, who took possession of the same property attached by the sheriff upon the warrants of plaintiffs. That these executions are prior liens to those of the plaintiff, and sheriff recognizes them as such. It is charged, and the proofs show, that these judgments and executions form and are a part of the conspiracy to defraud the creditors of Samuel Plonsky. The prayer of the complaint is substantially that the obstructions "created by the fraudulent execution and assignment be removed. The action is brought by plaintiffs against Samuel Plonsky, Eli M. Cohen, Anna Plonsky, Ezekiel Plonsky and Moses Plonsky, and a motion is made for an injunction to restrain the defendants from receiving and the sheriff from paying these amounts of the executions:</p> <p>Held, first, that the right of action can be sustained upon the "principle that the attaching creditors have a specific lien which entitles them to remove fraudulent obstructions to the due execution of the process.</p> <p>Second. That the complaint is not multifarious for the reason that a conspiracy between all the defendants is charged, and the various devices which have been resorted to are but the details of a single scheme and a common purpose.</p> <p>Third. That a prima fade case for an injunction both upon the law and the facts has been made out.</p>

On the 11th day of February, 1879, at the city of Albany, the respondent, John O’Connell, made an attack upon his wife with an iron plow coulter, struck her several blows upon the head and one upon the neck. The blows upon the head cut through to the bone and fractured the skull. He was indicted for an assault with a deadly weapon, with intent to kill. He was thereafter tried, convicted, and on the 24th day of November, 1880, sentenced to state prison for three years.

On the 10th day of September, 1881, the above named defendant, Julia Coffee, was duly apprehended and brought before William K. Clute, esq., a police justice of the city of Albany, charged as a vagrant within the meaning of section 887 of the Code of Criminal Procedure.

<p>Negligence — Contributory negligence — Evidence—In action for negligence, plaintiff must show affirmatively that the negligence of defendant was the sole cause of the injury — What evidence necessary—Legitimate and proper inferences to be drawn from the evidence is for the jury.</p> <p>Although in an action for negligence it is necessary for the plaintiff to show affirmatively that the negligence of the defendant was the sole 'cause of the injury complained of, it is not necessary that this he done 'by positive and direct evidence, proof of circumstances from which the 'inferences may fairly be drawn is sufficient.</p> <p>Not only is the truth of evidence for a jury, but the legitimate and proper inferences to be drawn therefrom are also for them.</p> <p>Where the answer-conceded that the fall occurred whilst the deceased was 'in the discharge of his duty as a brakeman, and the legitimate inference from the proof was that he fell by reason of the round giving way :</p> <p>Eeld, that the two —the admission and the proof—together establish that the deceased, in the discharge of his duty, and for the purpose of such discharge of duty, took hold of the round which, owing to an old break, •easily discoverable by the defendant if an inspection had been made, and not seen by the deceased on account of the darkness of night and the necessary haste of its use, gave way, causing him to fall and be crushed by the train.</p> <p>Held, also, that these facts establish both the negligence of the master and the freedom from negligence of the servant, and throws upon the master the entire responsibility of the accident.</p>

Motion by the defendant for a new trial on exceptions taken at the Erie circuit, and ordered to be heard at the general term in the first instance.

<p>Mortgage foreclosure — Infants — How personal service must be made upon — Judgment cannot be validated by acts done subsequent to judgment — Code of Civil Procedure, sections 426,471, 724, 783.</p> <p>Where, in a foreclosure suit, the summons was personally served upon two of the defendants, minor children, under the age of fourteen, of the mortgagor, who died intestate before the action was commenced, but was not served upon their mother or general guardian :</p> <p>Held, that the service was not such as to give the court jurisdiction over the person or property of the infants, even though a guardian ad litem appointed for them appeared in the action and put in an answer for them ; and a judgment of foreclosure of the mortgage and sale thereunder cannot be validated by acts done subsequent to such judgment and sale.</p> <p>A judgment entered without service of process is not within the remedial scope of sections 724 nor 783 of the Code of Civil Procedure.</p>

Upon the trial the following facts appeared, to wit, an account was opened with the defendant as follows: “ Dr. Emigrant Industrial Savings Bank in account with John O’Keefe or Ellen Mulcahey, O.” O’Keefe subsequently died and letters of administration were issued upon his estate to his widow, and upon presentation of these letters the defendant paid over the entire money on deposit to the administratrix so appointed.

<p>¡Benevolent societies—Bights of their members—Actions by or against associations of seven or more persons — Code of Civil Procedure, section 1919.</p> <p>Under section 1919 of the Code of Civil Procedure an action may be maintained by a member of a benevolent society against the treasurer of such society to recover from the funds of the same, certain moneys alleged to be due him by reason of sickness.</p> <p>The action was brought against a lodge of odd fellows by one of its members to recover “ sick benefits ” to which he claimed to be entitled. The plaintiff had joined the lodge years ago, when its by-laws provided that in case of sickness every member should receive a specified sum weekly “ during his sickness or disability.” Another section empowered the -lodge to alter or amend the by-laws whenever deemed expedient. After the plaintiff had been taken sick, and while he was in receipt of the weekly sum allowed him, a by-law was passed reducing the amount of the payments from four dollars to one a week:</p> <p>Held, that the lodge was bound to continue paying the plaintiff the full amount to which he was entitled when he became sick.</p> <p>Although the lodge had the right to change its by-laws, yet, whatever sum any member is entitled to when he is taken sick must be treated as a fixed amount, which cannot be subsequently reduced during the continuance of the sickness. The right to this is a vested right which cannot be annulled or varied while the disability lasts.</p>

<p>Appeal from an order denying a motion to settle a case and exceptions.</p>

<p>. Appeal by plaintiffs from an order affirming the clerk’s taxation of costs, and denying a motion for retaxation.</p>

<p>Appeal from a judgment rendered at trial term in favor of the plaintiff.</p> <p>The action was brought by the plaintiff, as assignee of August G. Genez, to recover $250 damages, on an undertaking given upon obtaining an order to arrest Genez in an action upon contract, wherein fraud was charged as the ground of arrest. The undertaking is in the form prescribed by section 559 of the Code of Civil Procedure. Genez, the defendant in the action, moved to vacate the order of arrest, and an order was entered by consent, granting the motion, “upon the defendant stipulating not to bring an action for false imprisonment or malicious prosecution.” The stipulation was given as required, and the action ultimately proceeded to judgment, which was given in favor of the plaintiff and against the defendant therein. The present action is brought upon the theory that the order vacating the arrest furnished the defendant with a ground of action against the principal and sureties upon the undertaking, notwithstanding the condition not to sue inserted in the order and the stipulation given under it.</p> <p>The trial judge adopted this theory, and rendered a judgment in favor of the plaintiff for $150.</p>

Motion by ¡plaintiff for a review by the court of taxation of costs by the clerk as provided by section 3265 of the Code of Civil Procedure, the clerk having allowed ten dollars for trial more than- two days.

<p> Perpetuation of testimony by MU in equity—What must be shown to entitle pa/rty to order. </p> <p>Where a hill was filed to obtain, under section 866 of the United States Revised Statutes, a direction that the testimony of a witness A. might be taken in perpetaam rei memoriam, alleging that complainant has been and still is using a certain process for which defendant has letters patent, that such letters patent are void for want of novelty, and in oase suit shall be brought by defendant against plaintiff for infringement, the plaintiff relies for its defense upon the testimony of A., who had himself made use of the process years before the patent was issued, that A. is upwards of ninety years old, and that defendant neglects to bring such suit for infringement:</p> <p>Held, (overruling demurrer to bill), that the deposition, if taken, would be admissible in the suit which complainant fears, section 867 not being applicable to testimony perpetuated by direction of the United States circuit court under section 866.</p> <p>Held, also, that there is a necessity for perpetuating this testimony, because, assuming the United States attorney-general has power to institute a proceeding to annul the defendant’s patent for want of novelty, still it rests with the attorney-general and not the plaintiff to say whether such proceeding shall be instituted, and whether A. shall be called as a witness.</p>

<p>Foreign corporations — When and how may be sued — Non-resident plaintiffs— Oode of Oivil Procedure, section 1780.</p> <p>Where a suit is brought against a foreign corporation, though a general appearance by defendant before answering gives the court jurisdiction over its person, it does not necessarily give jurisdiction over the subject-matter of the action, and where some of the plaintiffs are nonresidents, the complaint must be dismissed as to them, a case not being made out under section 1780 of the Oode of Civil Procedure.</p> <p>A resident plaintiff, however, where the complaint makes out a cause of' action may maintain the suit, though the acts out of which the cause of action arises were done, and the property from the management and disposition of which the plaintiff’s loss and damage were sustained are beyond the jurisdiction, and the relief within the power of the court to grant may be incomplete.</p> <p>That the stock of such plaintiff, suing as a stockholder, has not been registered, is no reason why he should not maintain the action.</p>

<p>Preferences — Bight to—How and when waived—Code of Civil Procedure, sections 791-793.</p> <p>Where the right to a preference depends upon facts which do not appear upon the pleadings, a copy of the order granting the preference must he served with or before the notice of trial or argument.</p> <p>By serving a notice of trial before making a motion to have the cause preferred, the right to such preference is waived.</p>

The cause was noticed for trial by the defendant, but was not noticed by the plaintiff. The defendant did not countermand his notice, nor move the cause when called on the calendar. The motion was denied, as not in “ accordance with the rules or practice of the courts or the provisions of the Code of Procedure.”

The action was to recover the sum of $31,030, alleged to have been lost in gaming. Upon the complaint and an affidavit reciting the loss and payment of sums amounting in the aggregate to the sum claimed, at the game of faro, an order of arrest was granted, which was afterwards, upon motion, and upon the same papers upon which he had granted it, vacated by the same judge.

Appeal by defendant from judgment of the third district court for the sum of seventy-three dollars and eighteen cents. Defendant, a city marshal, under an execution against the plaintiff, levied upon plaintiff’s property. Plaintiff, to prevent removal, entered into agreement with defendant to allow a keeper to remain in charge, agreeing to pay him three dollars per day.

Appeal by defendant Simpson from an order of the special term denying his motion for leave to make and serve a supplemental answer, setting np as a defense to the action an order previously obtained by him canceling the docket of the judgment constituting the cause of action. The facts are as follows: In 1858, the plaintiff’s assignor, Barker, procured judgment in this court against the defendant.

<p>Appeal from order of Mr. justice Donohue, authorizing the sale of property as perishable.</p>

<p>Attachment — Damages recoverable wpon vacating—Undertaking—Code of Civil Procedure, sections 640, 688.</p> <p>Where an attachment against property is vacated, the taxable costs and all reasonable counsel fees, on a motion necessary to get rid of the attachment, may be recovered upon the undertaking filed upon obtaining the attachment.</p> <p>If the attaching creditor pays such taxable costs the amount so paid reduces, pro tanto, the liability assumed by the undertaking, and must be allowed in the action brought thereon.</p> <p>Where the motion at special term to vacate the attachment was granted, should the sureties in such an undertaking be held liable for the costs and expenses made by their principal, by appeal, to reinstate his attachment, quaere?</p>