Volume 63 — Howard's Practice Reports

<p>Demobeee to complaint in action of foreclosure.</p>

<p> Writ of prohibition—should not be used as a means of interfering with the orderly practice of the courts or as a method to stay summary proceedings. </p> <p>While a writ-of prohibition lies to restrain a judicial tribunal from, exercising jurisdiction in matters not within its cognizance, as well as those in excess of it, it was never intended that this remedy should be used1 as a means of interfering with the orderly practice of the courts or as. a method to stay summary proceedings.</p> <p>In summary proceedings if the final order of the justice awards delivery-of the property, the issuance of the warrant may be enjoined in pur-, suance of subdivision 2, section 2265 of the Code of Civil Procedure.,</p>

<p>Insurance company— Trust for the security of policyholders— What is sufficient to establish one—After such trust has been created title passes to trustee— Creator of such trust no power to revoke same.</p> <p>The insurance company, defendant, in October, 1877, transferred to the-trust company, defendant, two mortgages as security to the holders of policies in the insurance company, the latter company to collect and retain for its own use the interest upon the mortgages. The trust company was, at the request of the insurance company, to foreclose the mortgages in its own name, on being indemnified for costs and expenses, and to hold the proceeds for the protection of the policyholders. In September, 1878, the insurance company made an assignment for the benefit of creditors, and at the request of the assignee the-mortgages were delivered to plaintiffs for foreclosure, as attorneys of the trust company, the plaintiffs giving a receipt stating that the proceeds, after deducting the interest which had accrued upon the securities, and the costs and expenses, were to be deposited with the trust company as security for the holders of the policies. There was $13,800 of interest due upon one of the mortgages at the time of the foreclosure, and $1,200 upon the other, while the foreclosure sale produced but $5,000 upon one mortgage and $1,000 upon the other. In this action to determine whether this $6,000, less expenses, should be paid to the assignee or to the trust company, and whether the plaintiffs have a lien for services to the assignee :</p> <p>Held, that, as against the trust company, whose attorneys they are, the plaintiffs are not entitled to hold possession of the fund, after receiving their taxable costs and allowances; and also that, as the agreement under which the trust company received the mortgages created a trust, by which the policyholders of the insurance company were to be secured, the securities and their proceeds became irrevocably impressed with that trust, and the trust company is, therefore, entitled to such proceeds as against the assignee of the insurance company, and this notwithstanding the provision in regard to the receipt and collection of interest by the insurance company.</p>

Motion by the New York Elevated Railroad Company to have its railroads and property, now held by the courts under receivers appointed in an action brought by the attorney-general in behalf of the People against The Manhattan Railway Company, restored and surrendered to it.

Motion by defendant for new trial on minutes after verdict, ordered for plaintiff at the circuit. The facts are all stated in the opinion excepting that it appeared by the defendant’s testimony that a few weeks after he sold the certificate he notified plaintiff of the sale.

<p>Partnerships— Continuation of firm name by survivors and legal representatives—Effect of statute—Lams of 1833, chapter 281.</p> <p>The evident object of the statute (Laws 1833, chap. 281) which provides that “ no person shall hereafter transact business in the name of a partner not interested in his firm,” so as to protect the public from the fraudulent use of Arm names, and not to invalidate contracts otherwise legal, except in cases where the policy of the statute has been violated.</p> <p>M. L. and H. were copartners under the name and style of M. L. & Co. M. died, leaving a will, whereby he appointed C. and E. his executors and legal representatives, empowering them to represent, manage and carry on in his name, for the benefit of his estate, his interests in said business of M. L. & Co. Pursuant to this power the surviving partners of said firm, in conjunction with said 0. and E., continued the firm’s business under the old firm name of M. L. & Co., and under such firm name sold goods and made contracts:</p> <p>Meld, that the case does not fall within the mischief which the statute was designed to suppress; nor is the transaction one which the law makers, by this highly penal statute, intended to punish and invalidate.</p>

<p>Limited liability compa/nies—personal liability of stockholders —Laws of 1875, chapter 611, seas. 35 and 87.</p> <p>In an action brought against a stockholder of a corporation organized under the act of June 18, 1875 {Lams of 1875, chap. 611, p. 755) to recover for the default of the company in payment of rent for five quarters, from the 1st day of Eebruary, 1877, to the 1st day of May, 1878, at the rate of $1,000 per annum, under a lease for the term of five years from the 1st day of January, 1876:</p> <p>Held, that, within the meaning of sections 35 and 37 of the act, the rent payable within two years from the time of executing the lease and delivering the premises, is recoverable in such action; the rent accruing beyond that time is not a liability that can be enforced against the individual stockholders.</p>

<p>Motion to vacate an attachment upon the papers on which it was allowed.</p>

Action for commission for selling a house. Verified complaint served. On the return day, March 12, 1881, defendant moved to interplead with other claimants for the same commission. Plaintiff denied jurisdiction of court to interplead under new Code, and demanded judgment unless verified answer was filed at once.

<p>Mamdamus—'When will not be allowed to compel the superintendent of the insurance department to file their animal report required, by chapter 356 of Lems of 1881 — Issuance of certificate required by this act in the discretion of the superintendent.</p> <p>The supreme court cannot review, by mandamus, a matter put in the quasi judicial discretion of the superintendent of the insurance department.</p> <p>The giving of the certificate of authority required by chapter 356 of Laws of 1881, to entitle associations and societies, whether voluntary or incorporated, to do business in this state, is within the discretion of the superintendent of insurance department.</p> <p>Where the annual statement required by this act has been presented to the superintendent, and he has examined the same and has determined against the company on the matter of solvency and ability, a mandamus will not be allowed to compel the filing of the same.</p> <p>Where a company who has been doing business in this state, but has ceased to do business here, and desires again to renew its business, the matter rests with the superintendent to refuse admission if he thinks best.</p>

<p>Illegitimate children— their right to inherit.</p> <p>In this state .an illegitimate child cannot receive, by descent, the real estate of the ancestor of her deceased mother.</p> <p>The statutes and decisions of other states compared and distinguished.</p>

<p>Mortgage foreclosure—BemvaP,—Effect of lis pendens on subsequent pwrchaser—Code of Oivil Procedure, sections 765-1661.</p> <p>In an action to foreclose a mortgage a grantee, subsequent to the filing of the lis pendens, is bound by all the proceedings in the action to the same extent as if he were a party, and his equity of redemption is cut off by the decree.</p> <p>Where A. commenced an action against B. to foreclose a mortgage, and, after lis pendens filed, B. conveyed the premises to C., and thereafter B. died and 0. was made his administrator. The action was revived against C. as administrator of B., deceased:</p> <p>Held, that the action was properly revived, and C.’s equity of redemption cut off by the decree (Affirming 8. 0., 62 Sow., 397).</p>

<p>Appeal by the people from an order made on habeas corpus, discharging Bayard from imprisonment.</p>

<p>Agpea/rcmce— Necessity of formal notice of—Practice— Code of Civil Procedure, sections 421, 422.</p> <p>Under the practice, as it stood before the Code of Civil Procedure, a notice of motion signed by an attorney was a general appearance in the action and when an attorney had appeared in an action no change of attorneys could be made without an order.</p> <p>But, under sections 421 and 422 of the Code of Civil Procedure. Until an attorney serves a formal notice of appearance or a pleading, he has no general standing in the cause, either to bind or protect his client; and an attorney for plaintiff who has received motion papers from an attorney for defendant, or has given time to an attorney for defendant to answer, can proceed in all other respects as if defendant had not appeared.</p>

Motion by respondents to have an undertaking given by the appellant on appeal to the court of appeals declared insufficient.

<p>Appeal from judgment in favor of the plaintiff, on a demurrer to the complaint. •</p>

<p>Commission—When open commission to take testimony without the state may issue — Granting of, matter' of discretion—Appeal lies from order — Code of Uwil Procedure, section 894.</p> <p>The granting of an open commission to take testimony without this state, under section 894 of the Code of Civil Procedure, is matter of discretion, the exercise of which, though it may be the subject of an appeal, ought not to be disturbed unless it is quite clear to the appellate court that the discretion was unwisely exercised.</p> <p>Where the action charged fraud and the witnesses sought to be examined were stated to be unwilling witnesses from long continued business relations with defendants’ firm, the judge at special term was justified in granting the order, though such relations had terminated and defendants denied knowledge of any facts which would render the witness reluctant.</p>

<p>Application on habeas corpus to release the petitioner upon bail.</p>

This action was brought by the plaintiff, as receiver of Hiles and Warren, against the city of Eochester, to recover the value of a quantity of rags belonging to Hiles and Warren, which were destroyed by order of the board of health of the city. The defenses set forth in the answer are: First. That the rags were infectious and dangerous to the public health, and were lawfully destroyed by the board of health. Second.

<p>Dower—when widow entitled to admeasurement—when acceptance of rents and execution of leases does not preclude her from, demanding further admeasurement— To bar dower, the grant must be in fee taü, or for the term of her life.</p> <p>The plaintiff sues for admeasurement of her dower in real estate at cerner of Broadway and Howard street. William D. Blackwell died in 1848 intestate, possessed of the property in question, leaving a widow, Mrs.1L. A. Blackwell, one daughter, Mrs. L. A. Poillon, and one son, Joseph Blackwell, who subsequently married plaintiff. Joseph Blackwell died in 1859 intestate, without issue, and possessed of an undivided one-half of these premises, subject to his mother’s dower right. He left him surviving his widow, the plaintiff, his sister and his mother. After his death his sister executed leases in her own name on the different parcels of real estate. These leases were outstanding at her death. She died in September, 1866, leaving a will appointing trustees of her property. After her death, the trustees appointed by her executed leases of separate parts of these premises for two years. Mrs. L. A. Blackwell and plaintiff joined with the trustees in the leases, and the rents were to he divided as agreed upon. The trustees received three-ninths, Mrs. L. A. Blackwell five-ninths, and the plaintiff one-ninth. Mrs. L. A. Blackwell died February 8', 1873. The original trustees under the will of Mrs. Poillon resigned, and new trustees were appointed, who took a conveyance of the property, subject to the plaintiff’s dower right.</p> <p>The defendants claimed that plaintiff, by reason of her acceptance of rents as above stated, had precluded herself from demanding further admeasurements of her dower, and that she could not have dower out of lands of which the ancestor’s widow was endowed :</p> <p>Held, that there had been no assignment of the dower of Mrs. L. A. Blackwell intermediate the death of her husband and of her son Joseph ; and that upon the death of Joseph her right of dower became merged in the life estate which she acquired by statute in his undivided one-half of the lands.</p> <p>Held, that nothing was done by plaintiff, Mrs. L. A. Blackwell and Mrs. Poillon, prior to the latter’s death, which estopped the plaintiff from maintaining this action, and that plaintiff’s subsequent joining with the trustees in the leases was not an admission that her dower .had been assigned, and that she was only entitled to one-ninth of the rent of the lands.</p>

<p>Brooklyn Elevated Bailway—power of cowrt to prevent (by injunction) the board of alderrmn from passing over the mayor’s veto a resolution changing the route of such railway — the board of aldermen amenable to an injunction order in an action against the city.</p> <p>A charter was made hy the legislature of the state for the construction of an elevated railway on designated streets in the city of Brooklyn, or on such streets and avenues as should he named hy the mayor and common council of the city of Brooklyn, as being more suitable for carrying out the objects contemplated in the erection of the railway. The aider-men made and adopted a resolution, marking out and naming certain streets and avenues on which, the superstructure might he placed. Such resolution was vetoed by the mayor. In an action in the supreme court against the city of Brooklyn and the Brooklyn Elevated Railway Company, to restrain the common council from any action to override the mayor’s veto, a preliminary injunction was obtained from the county judge of Kings county, enjoining the common council from voting and doing any act to override the veto. The common council voted on the resolution and passed it notwithstanding the veto and injunction, and were all attached for contempt therefor. On appeal from the order imposing punishment for the contempt:</p> <p>Held, that the hoard of aldermen in this case, are amenable to an injunction order in an action against the city.</p> <p>Held, also, that the injunction order though signed by a county judge, was, until reversed, a lawful mandate of the court, and their violation ■of it was a contempt for which they should he punished.</p>

<p>Trust deed—validity of, to be tested by the law of the state where it was executed and where the grantor lived emd died— That the statutes of another state in relation to trusts a/re identical cannot be assumed, but must be alleged and proved.</p> <p>The decedent, who was a resident of New Jersey and died there, about a year before his death executed an instrument giving his real estate, situated in New York and New Jersey, and all his personal property, to defendants, in trust, to pay annually certain sums to his children, with other provisions. The grant was not to take effect until the death of the grantor, and was subject to revocation, modification and alteration at Ms pleasure. The defendants, under this instrument, took possession of certain personal property of decedent in tMs state. Plaintiff, as public ^administrator (in default of other letters of administration), brings this action to recover such property, setting up the instrument and asserting its invalidity, and alleging that decedent retained possession of the property until his death, and did not assign or deliver the same to defendants.</p> <p>Held (overruling demurrer to complaint), that the instrument should be tested by the law of New Jersey, where it was executed, and where the grantor lived and died; and such instrument being invalid under the common law, and as it cannot be assumed that the statutes of New Jersey in relation to trusts are identical with those of tMs state, the facts set forth in the complaint establish a cause of action.</p>

The proceeding was brought by petitioner to acquire lands of appellants, in Steuben county, for petitioner’s railway. Commissioners of appraisal were appointed by the court, and a trial was regularly held before the commissioners, and witnesses were examined and cross-examined on both sides, and the case was then summed up by counsel for the respective parties.

<p> Pleadings—Complaint—Demurrer—General demurrer to complaint that it does not state facts sufficient to constitute a ea/ase of action wül he overrated if one cause of action is sufficiently stated. </p> <p>A general demurrer to a complaint that the pleading does not state facts sufficient to constitute a cause of action will he overruled, if one of two or more causes of action alleged is sufficiently stated.</p> <p>Whether the defense of non-payment of ten per cent on subscription to the stock of a railway corporation is valid to defendant, sued' by a receiver who represents the creditors of a corporation, gucere.</p>

B. Buggies, referee, to pass on the claims of B. J. Hoses, jr., against the Continental Life Insurance Company, for $10,000 fees as counsel for intervening policyholders, and from order refusing to vacate same.

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

<p>Parties — Change of— not necessary for the transferee of an interest to make application for his substitution, as a party to the action — Assignee in bankruptcy of a bank may prosecute action begun previous to his appointment by the bank, in its name, without formal order to that effect.</p> <p>The Stuyvesant Bank, in 1870, began a suit against defendant, and, after a reference ordered, a receiver was appointed in proceedings for a dissolution of the bank. Subsequently, in bankruptcy proceedings, the present plaintiff, in 1872, was appointed the bank’s assignee. The' original suit, after long interruption, was prosecuted before the referee, against defendant’s objection, without formal substitution of either receiver or assignee as plaintiff, though the attorneys who commenced it were authorized to continue it on behalf of both. After judgment for plaintiff, in 1879, this application was made by supplemental complaint to substitute the assignee as plaintiff:</p> <p>Meld, That the assignee having lawfully succeeded to the rights and interests of the bank, had a right to prosecute the action in its name without a formal order to that effect, and that his subsequent application for substitution was properly made.</p>

<p> Pleadings—Plea, in abatement setting forth nonjoinder of parties need not state that they arre ivoing and within the jurisdiction of the court. </p> <p>Under the Code a plea in abatement setting forth a non-joinder of parties defendant, and giving the names of such parties, need not state that they are living and within the jurisdiction of the court.</p>

<p>Answer—Reply— When the court will or will not require a reply — Gode of OMl Procedure, section 516.</p> <p>Under the old system of pleading, confession and avoidance meant an admission in a pleading of the truth of the facts as stated in the pleading to which it was an answer, and the allegation of new and related matter of fact which destroyed the legal effect of the facts so admitted; and it was an elementary rule in regard to such pleadings, that they must admit the material facts of the opponent’s pleadings, either in terms or effect.</p> <p>There can he no avoidance without an admission that hut for the fact of the avoiding matter the plaintiff would he entitled to judgment against the defendant.</p> <p>Where, in a quo warranto suit, brought by the relator to test the title of defendant to the office of judge of the superior court, the answer alleged the filing by judge Speir (the former incumbent) of the certificate required by statute, in the office of the secretary of state, stating his age and the time when his official term would expire, and that no proceedings to impeach or to set aside or to amend the same, were taken while said Speir continued in the possession and enjoyment of said office, and that said certificate and record were and are unimpeached and entitled to full faith and credit; and also alleged the contents of judge Speib’s letter of resignation, and that no proceedings whatever were thereafter taken by plaintiff, or by any other person, to have the office of said Speir declared vacant or have him ousted therefrom. Upon an application to compel the relator to reply to the new matter set up in the answer:</p> <p>Held, that the new matter which is thus set forth is not such a defense as is contemplated by section 516 of the Code of Civil Procedure, for the reason that such new matter does not constitute a defense by way of avoidance, and the relator should not be required to reply.</p>

Proceedings were commenced in October, 1880, by the above plaintiff against the above defendant, to recover possession of a house and lot in Ithaca, under title 2 of chapter 17 of the act supplemental to the Code of Civil Procedure, before Charles Gf. Day, esq., a justice of the peace, in Ithaca.

Demurrer to complaint. The defendant, who is an attorney and counselor-at-law,. appeared and acted for Hovey & Dole, in an action in the superior court of the city of New York, against one MacDonald.

Appeal by plaintiff from judgment dismissing complaint, and from order denying motion made upon judge’s minutes for a new trial.

<p>Husband, cmd wife—Wife may maintain action against Tier husband for an assomlt cmd battery—Laws of 1860, chapter 90; Loads of 1863, chapter 346; Code of Civil Procedure, section 549.</p> <p>Under the acts of 1860 and 1863, in relation to married women {Laws of 1860, chap. 90; Laws of 1863, chap. 346), a wife may bring an action against her husband for damages for assault and battery, and in such action the husband may be arrested and held to hail (Davts P. J., dissenting).</p>

<p>Appeal from a judgment, entered on a verdict rendered at the Steuben circuit, in an action brought to recover damages against the defendant, as sheriff of Steuben county, for a false return (of no property) of an execution, directing the sheriff to levy $181.42 damages and costs, with interest from June 6, 1876, besides sheriff’s fee, &c., and returned by him unsatisfied.</p>

<p>Divorce—Alimony—Decree of separation without any provision for maintenance of wife— Cannot afterwards be changed on.application of the wife so as to make such provision.</p> <p>When a decree of separation from bed and board has been entered in favor of a wife against her husband, without any provision for the maintenance of the wife, she cannot afterwards have the decree changed so as to make such provision, by showing that the husband’s pecuniary circumstances are such that an allowance of alimony would be proper.</p>

<p>Appeal— Undertaking—form of undertaking on appeal to the court of appeals, from a judgment or order of the general term, affirming a judgment oi' order previously entered, with costs— Code of Civil Procedure, sections, 1317, 1326, 1327, 1328, 1330, 1331, 1332.</p> <p>An undertaking given upon an appeal to the court of appeals, from an order and judgment of the general term, affirming the judgment below, must, in express words, provide for the payment of the original judgment if the judgment of the general term, affirming such judgment, be itself affirmed by the judgment or order of the court of last resort (See S. C., ante, 84).</p>

<p>Beference— Court no power to increase number of referees after order of reference made to one referee.</p> <p>Where an order of reference to a single referee has been affirmed by the general term, and also by the court of appeals, and the trial of the case has devolved upon the referee thus appointed, the court has no power subsequently to appoint two additional referees, unless upon a new state of facts {Per Van Brunt, J., reversing, 8. C., 62 How., 163, 165).</p> <p>Daly, C. J., dissenting, held, that the order appointing two more referees should be affirmed ; that the fact that the single referee to whom the cause had been referred had been sworn, and the case opened before him, does not present any difficulty.</p>

<p>Mortgage foreelosv/re—Stipulation — Meaning of.</p> <p>Where an action by plaintiff to foreclose a mortgage for $20,000 upon certain premises, of which defendant was owner, was pending in April, 1878, and she interposed an answer setting up a counter-claim, and then a stipulation was entered into that the answer should be withdrawn, the suit discontinued, the mortgage reduced to $16,000, and possession to be given to plaintiff, who, out of the rents, should pay the interest, taxes and necessary repairs, and credit the balance on the principal; such possession to continue until the principal of the mortgage should be reduced to $15,000 and all taxes paid, defendant giving a collateral bond for the $16,000 and acknowledging that the mortgage was valid and subsisting to the extent of $16,000. In this suit, broughtdn 1881, to foreclose the mortgage:</p> <p>MM, that the fair meaning of the stipulation was not that the mortgagee was to continue to hold the premises indefinitely, if within a reasonable time it was found that the premises would not produce enough after paying interest, taxes and necessary repairs, to reduce the principal to $15,000; and that after such reasonable time, and three years would be a reasonable time, the mortgage may be foreclosed.</p>

<p>discovery of books and papers—Code of Civil Procedure, section 803 — When the discovery of the books of a copartnership will be permitted in an action against one of the copa/rtners.</p> <p>The petitioner, a son of S. A. Martine, deceased, and an infant, petitioned the court, through his guardian, for leave to examine the books of S. A. Martine &" Co., of which his father was a member during his life ; and, also, the books of the succeeding firm, alleging that such examination would disclose a fraud in the sale of the interest of his father to his copartner, who is petitioner’s half-brother:</p> <p>Held, that though, as a general rule, the discovery of the books of a copartnership will not be permitted in an action against one of the copartners, yet in this case, where the new firm was, to a certain extent, a continuation of the old firm, and one of the partners of the new firm succeeded to the interests of his deceased partner in the old firm, and continued to be representative of its assets; and the olher partner, who had for years been in the employment of the old firm, having purchased an interest in such assets, and taken it subject to all the equities existing in reference to those assets, a discovery of the books of both firms should be allowed, so far as they relate to the assets and subject-matter of the action ; it not appearing that the discovery is unnecessary or unreasonable.</p>

Action for construction of a will. The will of Brewster Valentine, deceased, directed his executors, the plaintiffs, “to invest the sum of $100,000 * * * in bonds, stocks or public securities either of the United States of America, the city, county or state of blew York, the county of Kings or city of Brooklyn-,” and pay the interest thereon to his wife, the defendant, Catharine A. Valentine, for life; and upon her death, the testator gives “ the one equal half part of said…

<p>¡Reference under statute providing for the hemring and, determining of claims ,against the estate of a deceased pa/rty — How and when motion may he made to-set aside report— Bxecutor—Cannot assign claims owing to himself individually to 'himself as executor.</p> <p>A motion, to set aside the report of a referee, appointed under the statute providing for the hearing and determining of claims against the estate of a deceased party, is not too late though made after the entry of judgment upon such report.</p> <p>The motion must first he made at a special term.</p> <p>An executor cannot transfer claims owing to himself individually by executing a formal assignment of them to himself, as executor, so as to entitle him to enforce them against the estate of the deceased intestate in his fee as exécutor.</p>

<p> Assignment of claim in expectancy—When valid—What evidence admissible to explain a written instrument—When parol evidence admissible. </p> <p>An assignment of demands having at the time no actual existence, but which rests in expectancy merely, is valid in equity as an agreement, and takes effect as an assignment where the demands intended to be assigned are subsequently brought into existence.</p> <p>Where the evidence showed that one P. W. died in March, 1880, leaving a will, the eighth clause of which read as follows: “I give and bequeath to my nephew W. W., son of my brother I. W„ deceased, fifty shares of the capital stock of the Third Avenue Railroad Company of the city of New York, or so much or such portion thereof as I may own or be possessed of at the time of my decease.” W. W., the legatee above named, died intestate May 10, 1880, having previously executed and delivered to the plaintiff an instrument in writing as follows: “I, W. W., of Orange county, of the state of Florida, now at present residing at No. 58 East One Hundred and Twelfth street, of the city of New York, do give and bequeath to my friend John B. Johnson, in return for all kindness and attention I received from him in this my last sickness, all the Third avenue railroad stock, fifty shares, the same that was bequeathed to me by my uncle P. W., now deceased, and request that my aunt, C. W., see that the same is paid over to him as soon as practicable after my death; this being my dying request: ”</p> <p>Held, that although, independent of the instrument, the testimony established the fact that it was the intention of W. W. to give the stock to tne plaintiff, yet the transaction cannot be upheld as a gift either inter vivos or donatio mortis causa.</p> <p>Held, also, that the evidence will not support a declaration of trust, but the plaintiff may recover upon the instrument as a valid assignment.</p> <p>Although the language employed is that ordinarily used in testamentary disposition of property, yet the intention of the author of the instrument may be sought for by extrinsic evidence of all the surrounding circumstances which may aid in its interpretation.</p> <p>In this and like cases parol evidence is admissible, not to vary or contradict but to explain the contract,</p>

The plaintiff was an attorney. The defendant desired a loan of money on bond and mortgage and applied to one Mrs. Ketcham, who agreed to loan $5,500 on bond and mortgage on a lot of land in West One Hundred and Twenty-fourth street. At request of Mrs. Ketcham the plaintiff searched the title and rejected it. He sued defendant upon an alleged retainer of defendant for his services in searching.

<p>Costs—When defendants who sever in their defense, appearing by different attorneys and dll succeed, are entitled to separate bid of costs—Extra allowance—When entitled to— Code of Civil Procedure, sections 3228, 3229.</p> <p>In an action brought by plaintiff to recover from defendants, who were at the time of the alleged contraction thereof copartners, a debt which he claimed had been incurred by their fraudulent misrepresentations as to their ability to pay. They appeared by separate attorneys and a verdict was rendered in favor of both defendants. On motion to be allowed separate bills of costs, and for an extra allowance:</p> <p>Held, that under the Code both defendants are entitled to costs, and such claim can only be disallowed upon the ground that the appearance by separate attorneys was in bad faith and for the sole purpose of incurring costs.</p> <p>Held, further, that the burthen of proving this rests upon the plaintiffs, and the facts do not justify such a conclusion. The attorneys have no connection in business, their offices are separate, the undertakings upon the arrest were separate, and as one of the defendants may have been guilty of fraud and the other not, they were justified in making a separate defense by different attorneys, and having done so and succeeded they are both entitled to costs.</p> <p>Held, also, that the case was “ a difficult and extraordinary one,” and under section 3253 an extra allowance should be made.</p>

<p> Husband amd wife—When tenants in common in lands conveyed to them jointly—When grantee in a conveyance by wife entitled to a partition. </p> <p>Where, since the act of 1860, concerning the rights and liabilities of husband and wife, lands have been conveyed to a husband and wife jointly, without any statement in the deed as to the manner in which the grantee shall hold, they are tenants in common, and not tenants by entireties; and the grantee in a conveyance by the wife of an individual half of the premises is entitled to a partition.</p>

The defendant was indicted for nuisance in erecting and continuing obstructions on an alleged public highway, three rods wide, located in Berne, Albany county. He was tried in the court of sessions. The plot of ground through which the highway was claimed is triangular in form, being about three-quarters of an acre one side, the stone wall being 476 feet in length; another a highway some 238 feet, and Thompson’s lake being the third boundary.

<p>Criminal law—Bight of prisoner against whom a coroner’s jury has found a verdict to an examination before a magistrate prior to being held for the grand jury—Code of Criminal Procedure, sections 145, 188, 331, 788, 784, 789.</p> <p>A person against whom an inquisition has been found by a coroner’s jury, whether arrested before or after the filing of such inquisition, is entitled to a hearing before a magistrate in the same manner as if he had been arrested upon an ordinary information as defined by section 145 of the Code of Criminal Procedure.</p>

The appellant Longwell is the owner of a valuable farm near, the village of Bath, Mew York, containing about 300 acres, upon which he resides. The railroad of respondent, now in process of construction, runs across the farm for a distance of nearly half a mile, passing through appellant’s barns and near his house, and destroying a valuable driveway and shade and fruit trees.

<p>Motion by defendant to make this complaint more definite and certain, and for a bill of particulars.</p>

An action was commenced against the defendants to recover a chattel. Subsequently an order of arrest was obtained, and the defendant Hauteman, was arrested. At the time of the arrest, the sheriff served copies of all the papers excepting the summons. For this omission the defendant Hauteman mo.ved to vacate the arrest, claiming that as to him the court had not acquired jurisdiction. The motion was denied and the defendant appealed.

<p>Practice—Demurrer a/mended by service of an answer—/Service of am answer abates a motion for judgment, and an independent motion to strike out the amended pleading should be made— Gode of Givil Procedure, section 542.</p> <p>Demurrer amended by the service of an answer where the defendants served a demurrer, which the plaintiff moved against as frivolous, and the defendants after service of the notice of motion, and the day before that named for the argument thereof, and within the time allowed by law to amend, served an answer by way of an amended pleading.</p> <p>Reid, that the motion for judgment abated in consequence of the amendment, and that the plaintiff’s only remedy was to make an independent motion to strike out the amended pleading, upon proof that it was interposed for delay. Section 542 of the Code of Civil Procedure construed.</p>

<p>Appeal from an order denying a motion made to vacate an order requiring the defendant Brown to appear and be examined as a witness in the action before trial.</p>

Return of an order to show cause why a peremptory writ of mandamus should not issue to compel the corporation to exercise its franchises, and to receive and transport freight upon such terms as are reasonable and usual, and to perform its duties as a common carrier, &c. The respondent moves to quash.

<p>Appeal from the judgment of the justice, G-eobge W. Pabkeb, of the district court in the city of New York for the third judicial district, in favor of the plaintiff, for the sum of $119.49.</p> <p>The plaintiff was appointed referee in the case of Fischer agt. Raab, by order of the court of common pleas for the city and county of New York, dated September 17, 1878.</p> <p>The defendant was the attorney of Mr. Fischer, and had applied for the reference on the argument of a motion to continue an injunction, because he was met by a number of affidavits in opposition; the order of reference, therefore, provided that he was to pay the expense of the reference, unless Mr. Eaab and others should testify before the referee that they did not make, for the purpose of their said affidavits, the statement that Mr. Fischer made a certain motion in the society of which he was a member. It turned out that Hr. Eaab and the others had understandingly made the affidavits presented on the motion. After a most bitter contest, the referee found against Hr. Fischer, who then paid no attention to the report or the payment of the referee’s fees, and commenced to press his action for trial, entirely regardless of the trouble he had caused. The court ordered Hr. Fischer to pay the referee’s fees, amounting to $130, and for refusing to do so a commitment was issued, and he was incarcerated in jail {See Fiseher agt. Paab, 56 How. Pr. Pep., 218.)</p> <p>While there the defeúdant, his attorney, moved for a stay of proceedings pending his appeal from the order of commitment, as to which judge J. F. Daly, in his opinion dated December 17, 1878, said that Hr. Fischer was not entitled to a stay of proceedings on his conviction of contempt, except on payment of the amount it has been decided he should pay. “ I will grant the stay upon condition that plaintiff pay the referee’s fees to judge Diskel, the referee taking the stipulation of the latter to repay the same, if it should be hereafter determined by this court that the plaintiff was not bound under the order of September 17, 1878, to pay such fees.” This order was the order of reference; the order of commitment was dated December 4, 1878. December 18, 1878, the day after the filing of this opinion, the defendant went to plaintiff and told him that judge Joseph F. Daly had consented to discharge his client from imprisonment upon his, said defendant, paying respondent his fees, but that judge Daly had also told him that respondent ought to sign a stipulation that in the event that the order committing his client for contempt of court, in refusing to pay the fees, should be reversed on appeal, the respondent should refund him his $130. The plaintiff not knowing of judge Daly’s real deei. sion, told defendant if that was so he would sign the stipulation, and did so, reciting that in the event that the order of commitment made December 4, 1878, adjudicating Hr. Fischer guilty of contempt, was reversed, he would pay back the $130 referee’s fees.</p> <p>Judge Daly had required no such stipulation, and when the defendant came before him to seek his client’s release, upon the claim that the referee’s fees had been paid, and he learned of the stipulation from Mr. Baab’s attorneys, he refused to release the prisoner unless this fraudulent stipulation was returned and the correct one taken. The plaintiff tendered the correct stipulation and defendant refused to receive it and to give back the other. The court of common pleas affirmed the order of commitment of December 4,1878 (See Fisoher agt. Faab, 58 How. Pr., 221), but the court of appeals reversed it (see 81 JF. Y., 235); and a criticism of this case is given in Geib agt. Topping (83 N. Y., 47.)</p> <p>Mo appeal was ever taken from the order of reference of September 17, 1878; and that order never was reversed by the court of common pleas, or court of appeals, and it never was questioned. The referee’s report was confirmed, and the order of confirmation never appealed from. Upon the reversal of the order of commitment defendant commenced an action in the supreme court upon the fraudulent stipulation, to recover back the $130 referee’s fees, paid to the plaintiff.</p> <p>The answer of the plaintiff set up the fraud of the defendant in procuring the same, and that said stipulation was fraudulent and void. The plaintiff being sick in bed and defendant worrying him with the supreme court suit, and knowing that even if he was successful, he would be taken to the court of appeals and would have to pay counsel $100 to argue the case, and • doubting the pecuniary responsibility of the defendant, he thought the best way to settle that suit, the supreme court suit, and he paid defendant $100 in full settlement of the above entitled action, and an order of discontinuance was entered. The plaintiff then brought an action in the third district court to recover his referee’s fees, under a verbal promise and a writing to pay them. He claimed only $99.99 without interest, to prevent a removal of the action to the court of common pleas for trial, so that the litigation would be speedily ended, and the appeal, if possible, limited to that court. The answer was a general denial, and an adjournment was had at request of defendant to March 11, 1881, on which day defendant moved to fix the amount of the undertaking to remove the action, on the ground that the summons claimed interest from the day of 18 .</p> <p>The motion was denied. The plaintiff then proved by three witnesses that before proceeding with the reference, he learned the parties were poor, and upon the promise and credit of the respective attorneys, whoever lost, to pay the fees, he proceeded and earned the fees.</p> <p>Defendant did not deny the promise, and called no witnesses, but contended that there had been payment and an accord and satisfaction as to the referee’s fees.</p> <p>The justice, gave a judgment for the plaintiff, and defendant appealed to the general term of the court of common pleas.</p>

This case was tried in the common pleas court, and a verdict directed by judge Van Brunt. On appeal to the general term the judgment was affirmed (opinion of Daly, O. J.; Van Hoesen and J. F. Daly, JJ., concurring, see 61 How., 250), where the facts of the case will be found.

<p> WiU—construction of—In whom and in what manner trust fund nests. </p> <p>The testator gave a certain sum to his executors in trust to invest and apply the income to the use of his son Daniel during his life. After his death one-half of said sum was directed to he divided equally among such of the testator’s children as might then be alive, and "the heirs or legal representatives of any children or child now or then deceased, except the heirs or representatives of said Daniel, share and share alike ” In case Daniel’s wife should survive him the other half was to be held for her benefit, and upon her death or remarriage it should be equally divided among such of the testator’s children as might then be alive (except the heirs or representatives of his son Daniel), share and share alike, per stirpes and not pm' capita:</p> <p>Held, that the trust fund in question, upon the death of Daniel, vested in testator’s then living children, and the heirs or issue of his deceased children, per stirpes and not per capita.</p>

<p> Fund for payment of interest upon city bonds—When regarded as a trust fund so that it could not be attached at the suit of a general creditor. </p> <p>The plaintiff, a general creditor of the city of Elizabeth, Hew Jersey, sought to attach certain moneys belonging to the city which the comptroller had deposited with defendant to meet the interest due upon the bonds of the city on the following day, which deposit the defendant had accepted for that specific purpose:</p> <p>Held, that the transaction amounted to a special deposit for the benefit of the bondholders; that the defendant accepted it upon that trust, and that therefore the fund could not be attached at the suit of a general creditor.</p>

The complaint alleges that Eliza Wilt, of the city of Mew York, was, before the year 1873, seized in fee and in possession of several parcels of real estate situate in the city of Mew York, which are particularly described therein, and that she also owned articles of personal property; that on the 17th of January, in the year 1871, Eliza Wilt, being seized and possessed of such property, real and personal, made and executed her last will and testament, in accordance with the…

<p>Pleadings— Complaint—Demurrer—Action, to recover damages for abuse of legal process — Sufficiency of complaint—Action map be sustained without proof of probable carne— Where greater particularity in a complaint is required the remedy is by motion and, not by demurrer.</p> <p>A complaint substantially alleging that the defendants wrongfully suéd, arrested and imprisoned the plaintiff for a wrongful or fictitious claim, is not amenable to a general demurrer, as facts are stated constituting a cause of action for damages, for abuse of legal process, which action may be sustained without proof of a want of probable cause.</p>

<p> Action for negligent Mling—Damages—When verdict should not set aside as excessive. </p> <p>In an action to recover damages for the death of plaintiff’s intestate, caused by the negligence of the defendant, it appeared that the deceased was the only child of the plaintiff, a man in moderate circumstances, and was a healthy and bright child, a girl of six years of age, and left her surviving a father and mother, the latter of whom was also severely injured and crippled by the same accident. The jury gave a verdict for $5,000:</p> <p>Held, that it should not be set aside as excessive.</p> <p>When the condition of life of the parties is shown, and there is a reasonable prospect of a long and useful life to the party killed, the jury are to estimate the present and prospective damages caused by the death to the next of kin, to be measured according to their best judgment by the . actual “pecuniary injuries to such ” next of kin The discharge of such a duty, expressly confided to a jury by statute, necessarily, in a case which presents reasonable grounds of conjecture, involves a wide discretion, and unless the evidence shows a plain error, the verdict cannot be disturbed:</p> <p>Held, further, that, as the “ calculations of the damages, based solely upon the circumstances and conditions of the parties, are for .the jury, it is impossible, as no fact is proven which shows the verdict to be necessarily excessive, to disturb the findings of the jury in this case.</p> <p>The following principles held to be established by the cases cited in the opinion:</p> <p>Mrst. The plaintiff in an action of this character need not show any direct pecuniary loss.</p> <p>Second. When the circumstances and conditions in life of the next of kin, and the age, sex and mental characteristics of the deceased are shown, it is for the jury to estimate “the pecuniary injuries,” present and prospective, to the next of kin.</p> <p>Third. The court cann.ot say, “ as matter of lam,” in the case of the death of an infant, and no actual loss in dollars and cents shown, “ that there is no pecuniary damage in such a case, or that the expense of maintaining the child would necessarily exceed any pecuniary advantage which the parents could have derived from its service had it lived; ” and that the “ calculations ” of the probable injuries “ are for the jury,” because evidence on such a subject beyond what has been above stated to be proper would necessarily be speculative and hypothetical;” and</p> <p>Fourth. When juries have only, by such lights as the circumstances and condition in life of the next of kin, and the physical and mental characteristics of the deceased afford, calculated and ascertained “ the pecuniary injuries " to be hundreds of dollars, the courts cannot interfere.</p>

<p>Agreement to purchase goods undor an exclusive agency and to he allowed a specific discount with privilege of exchanging any purchase at any time— Interest not to be allowed—Goods sent by plaintiff to be'exchanged, which were damaged by fire in transit, by whom loss to be borne.</p> <p>The plaintiff dealt with defendant under a written agreement whereby the former was to purchase goods from the latter under an exclusive agency, and, was allowed a specific discount and the privilege of exchanging any of his purchases at any time:</p> <p>Held, 1. That there having been no final settlement or adjustment at any time prior to the trial, and the agreement contained no clause as to interest, the defendant was not entitled to charge interest. 3. The loss upon goods sent by plaintiff to defendant for exchange, which were damaged by fire while in transit, should be borne by plaintiff, as the goods belonged to him when shipped, and the title remained in him until they reached defendant’s custody.</p>

<p>Appeal from judgment of the special term dismissing the complaint.</p>

The defendant offers to pay the plaintiff’s demand and costs and applies to be relieved from the litigation on paying the same into court, the plaintiff having refused to accept the amount tendered. The real contention, however, grows out of the dispute whether the plaintiff is entitled to a trial fee under the following circumstances: The case appeared upon the day calendar Hay 23, 1882, and both parties answered ready.

<p> Costs—Who entitled to costs of the appeal when by the order of am, appellate court judgment is reversed, with costs to ■abide event. </p> <p>When by the order of an appellate court judgment is reversed and a new trial ordered, with costs to abide the event, and without other limitation, the final prevailing party is entitled to the costs of the appeal.</p>

<p>Commissioners of Central Pa/rk — Their power to prohibit the use of bicycles therein.</p> <p>Under the power conferred by the act of 1871, upon the commissioners of Central Park they have the power to prohibit by resolution the use of any bicycle or tricycle therein, and with their determination, in the absence of fraud or collusion the courts cannot interfere.</p>

The plaintiff sued for the sum of $4,671, alleging that such sum being due the intestate at the time of his death, had been collected and retained by the defendant.

<p>Damages— In suit for breach, of contract, up to what tíme damages may be recovered,.</p> <p>In a suit for damages for breach, of contract, where the contract has not been terminated by afflux of time, damages may be recovered up to the time of the trial of the action.</p>

<p>Causes of action which may not he united in the same complaint—Code of Civil Procedure, section 484.</p> <p>The plaintiff as assignee of judgments against A., brought suit to set aside two chattel mortgages made by A., upon his personal property to two persons, who were joined with him as defendants, which liens and a general assignment to another defendant, were claimed to be fraudulent. Another defendant, Close, is averred to hold a valid chattel mortgage, the enforced foreclosure of which is asked:</p> <p>jBeld,, that the cause of action for fraud, and that against Close, are improperly joined, as not affecting all the parties to the action.</p>

<p> Will—Construction of—When interests rest—The word “heir” does not include the ‘ ‘ widow ”—When substitutes take the place ofprirma/ry donees. </p> <p>The testatrix by her will directed that her residuary estate upon the death of her husband, who had a life interest therein, should be divided, after payment of certain legacies, into two equal parts; one of the two to be subdivided into seven equal parts, one of which she gave to each of six persons named and one to the children of another person, and directed that the “ heirs of any or either of the foregoing persons who may die before my said husband take the share which the persons or person so dying would have taken if living.” The husband of the testatrix survived her, but previous to his death several of the persons to whom the seven parts were given had died:</p> <p>Held, that the substantial interest in these shares given to these persons was not to be absolutely vested .in them until the death of the husband of the testatrix, and that whatever interest they took, although vested (luring his lifetime, was liable to be divested by the death of either in the lifetime of the tenant for life, and the heir or heirs of the person so dying took the share which he or she would have taken if living at the time limited by the will. Therefore the widow of one of the persons so dying, who by his will gave her all his interest in the property so bequeathed, did not thereby become the owner of such share, though his nearest relatives by blood at the date of his death were the children and grandchildren of a deceased sister, and the whole remainder be regarded as personal property, the widow is not included under the term “heir,” as used by the testatrix, and can take nothing under the will and her husband’s share must go to his nearest blood relatives.</p>

Motion by plaintiff to correct the judgment-roll, entered in this action, and for the restoration to him of the property from which he or his assignee had been evicted by the execution issued upon such judgment.

<p> Superintendents of the poor—person removing from one town to another and, becoming a pauper, which town liable for his support. </p> <p>Where P. had resided in the town of Minden, adjoining Palatine, in Montgomery county, f<~r seventeen years continuously, until November, 1881, when he voluntarily removed to the town of Palatine, and in about a month thereafter he and his family became a town charge:</p> <p>Held, that P. has never gained a legal settlement in the town of Palatine, but that he had gained such settlement in the town of Minden, and it still remains there, and that that town is liable for his support as a pauper since he removed to Palatine.</p> <p>Section 29 of the statute (8 B. S. \Bamk’s new 1th ed.], 1858, 1859), applies to “ every person ” who shall be a resident and inhabitant of any town for one year, and the members of his family who shall not have gained a separate settlement. And they cannot gain a settlement in any town until they have resided therein for at least one year, whether such persons are paupers or not. When a settlement is once legally gained in any town it must necessarily remain there until one is subsequently established in some other town or county.</p>

<p> Stay of proceedings—when should be granted pending an appeal to general term from order denying motion to make complaint more definite and certain, but allowing a bill of particulars. </p> <p>In regard to questions not absolutely settled by the court of last resort there is always so much doubt as to how they will there be determined that it is, as a general rule, safer and better for the tribunal whichhears them in the first instance to give an opportunity for review before proceeding to enforce conclusions which may be overturned.</p> <p>Where, in an action in the nature of a quo warranto to try title to an office, the question which the appeal involves being the right of the defendant to have embodied in the complaint the alleged facts upon which an official canvass of the votes cast for such office is to be overturned:</p> <p>Held, that in view of the importance of the case, the unsettled condition of the practice, the need of the pleadings being passed upon previous to a trial and the affidavit of most respectable counsel that the appeal “is brought and will be prosecuted in good faith to an early decision,” and that he “ is of opinion that there is reasonable ground for such appeal,” the stay should be granted (See S. 0., ante, 271).</p>

Motion by defendants to compel plaintiff, who resides in Brooklyn, to file security for costs, under section 3268 of the Code.

Motion by defendant to dismiss the complaint on plaintiff’s opening. The facts appear in the following opinion given orally on deciding the motion at the trial.

<p>Appeal by Richard W. Emerson, a non-resident and junior attaching creditor, from an order denying his motion to vacate the plaintiffs attachment herein.</p>

<p>.Appeal — Stop of execution on judgment foi' a chattel—Judge to fix amount of undertaking.</p> <p>Where an application is made for a stay pending an appeal from a judgment providing for the recovery of a chattel, it is the duty of the judge to whom the application is made to fix the amount of the undertaking, upon the giving of which a stay should he granted.</p>

Charles M. Belknap died August 25, 1877, leaving a last will and testament wherein the plaintiffs were named as executors. The first clause of said will provided for the payment of Ms debts. The second for the purchase of a lot in the cemetery and the erection of a monument. The third a devise of $10,000 to his cousin Adaline C. Belknap, together with his wearing apparel and jewelry. The fourth devises gifts of $500 each to three different masonic societies.

<p> Life insurance—When surrender of policy invalid—Insurance for wife and children. </p> <p>Where a person who insured his life for the benefit of Ms wife and children surrendered the policies .after the death of hi® wife, signing as guardian of Ms children, though all but one of the children had arrived at full age:</p> <p>Meld, that such surrenders were void, and the children, who, until their father’s death, were ignorant of the existence of the policies, became entitled, at Ms death, to the full amount named in them, less the amount of premiums wMch accrued since the surrenders.</p>

<p>Injunction—does not lie merely to restrain an illegal arrest—BooJc-maMng a •mlation of chapter 178 of Laws of 1877.</p> <p>The acts done at Madison Square Carden during the walking match, and which constitutes the practice of hook-making, are plain violations of the statute of 1877 (Lancs of 1877, chap. 178), and the persons committing them are guilty of misdemeanors, and the arrest of such persons would be a legal arrest.</p> <p>An injunction does not lie merely to restrain an illegal arrest for the reason that if a party is illegally arrested he has a prompt and efficacious relief by habeas corpus, and also relief for the wrong by an action for damages.</p>

Appeal by plaintiff from a judgment dismissing the plaintiff’s complaint, entered upon a decision of a judge at special term. The action was for judgment that the defendants should be declared to hold, as trustees for a firm, certain leases obtained by them in their own name. The plaintiff and one of the defendants, Constantine Ross-wog, were copartners in business under the firm name of Spiess & Rosswog.

<p>Stay of proceedings—not void under rule 37, though granted within nine days of a circuit at which the cause is noticed for trial, and l>y a judge other than the one who is to hold the -circuit.</p> <p>Rule 37, though a wise rule which a judge could properly respect, is inconsistent with the statute respecting the granting of stay of proceedings.</p> <p>A judge of the supreme court has power by law to stay proceedings in an action, and no rule can prevent the operation of his order.</p> <p>There is no power in the court or another judge, without notice, to vacate such order. A vacation without notice can only be granted by the judge who made the order.</p>

Plaintiff recovered a judgment against defendant for $1,766.28, which on appeal was reduced to $1,149.24. Defendant on his appeal, instead of an undertaking, made a deposit with the clerk of $2,300. The defendant appealed from the judgment of the general term to the court of appeals, and claimed that as the amount of the judgment had been modified the deposit should also be reduced.

Action for partition of premises in the city of Hew York. The facts briefly are, that in 1881, Ellen Hughes died intestate, seized of the premises in question, which were the only-real property she then had, leaving her surviving her husband, James Hughes, defendant, and her four children, three of whom are plaintiffs herein, and one an infant of the age of over fourteen years, defendant.

Beene was one of the original towns of Albany county. By chapter 48 of the Laws of 1822, Berne was divided and Knox created therefrom, the dividing line being specifically described. About a year ago a dispute arose between said towns with reference to their division or boundary line.

Two motions are made; the one by the defendant to dissolve an injunction, the other by the plaintiff to' require the deposit in court, pending the action, of the securities which .are the subject of controversy.

Motion by plaintiff to correct the judgment-roll entered in this action, and for the restoration to him of the property from which he or his assignee had been evicted by the execution issued upon such judgment.

Motion to punish the sheriff of Oswego county for an alleged contempt in neglecting to execute the process of the court, issued in this action in. favor of .the plaintiff.

<p> Insurance, life—When condition in paid-up policy that the non-payment of interest on outstanding ‘premium note on the day when it became due should void the policy is unwarranted and the plaintiff is not bound by it—Husband and wife—Insurance on life of husband payable to the wife under laws of Massachusetts—Where the wife dies intestate before her husband, it goes to the estate of the husband. </p> <p>The defendant, in 1866, issued a policy of insurance upon "the life of plaintiff’s intestate, payable to the wife of the insured. By the laws of Massachusetts, where the insured and his wife resided when the policy was issued, such policy inured to the wife’s separate use and benefit, and to the benefit of her children, independent of her husband or his creditors. By the laws of that state, also, the property of a married woman is her own separate estate and may be disposed of by her by will, or if she dies intestate it passes to her legal representatives and is to be disposed of under the statute of distribution of that state. The wife died intestate before her husband and left no children:</p> <p>Held, that by the laws of Massachusetts the insurance money belonged to the estate of her husband, and the action for its recovery was properly brought by his personal representatives.</p> <p>The original policy contained a clause whereby there was no forfeiture of the entire policy after the payment of two annual premiums, and it was not voided by failure to pay a premium note. The premiums were all paid for ten years, and at the end of the last payment the assured was • entitled to receive a paid-up policy “tor the full value acquired under the old one, subject to any note that may have been received on account of premiums. ” The defendant upon issuing the paid-up policy inserted therein a stipulation that the non-payment of interest on the premium note, which was then outstanding on the day when such interest became due should void the policy:</p> <p>Held, that this provision was an unwarranted and audacious act on the part of the insurer, and not having been authorized by the terms of the original policy the plaintiff is not bound by the condition there imposed.</p>

Action to recover $4,700 salary received by Mr. McLean, as police commissioner, from April 17, 1879, to February 7, 1880. Mr. ¡Nichols was removed from the office of police commissioner by Mayor Cooper at the former date for alleged misconduct and was reinstated at the last named date.

<p>Taxation, wider chapter 542 of the Lams of 1880— The act not unconstitutional— When it became operative.</p> <p>The builder and repairer of vessels is a ship carpenter or ship builder, and not a manufacturer, within the meaning of the term "manufacturing corporation,” as used in chapter 542 of the Laws of 1880, section 3.</p> <p>The act in relation to the taxation upon certain " corporations, joint-stock companies and associations,” for the use of the state (Laws of 1880, chap. 542), is not unconstitutional.</p> <p>In the imposition of taxes by such act, the first period under the act must be from first Monday in November, 1879, to_first Monday in November, 1880. The word " hereafter,” as used in the act, includes the year of the passage of the act.</p>

<p>Jurisdiction— One foreign corporation may me another foreign corporation in the federal courts — Bernice of process.</p> <p>A corporation of another state can sue an alien corporation in the federal courts.</p> <p>Where a foreign corporation avails itself of the privileges of doing business in a state whose laws authorize it to be sued there by service of process upon an agent, its assent to that mode of service is implied. A foreign corporation consents to be amenable to suit by such mode of service as the laws of the state provide, when it invokes the comity of the state for the transaction of its affairs. It waives the right to object to the mode of service of process which the state laws authorize.</p> <p>The corporation is “found ” in the district where its agent is served when it does business there, and the state laws authorize such a mode of service.</p>

<p>Constitutional law—Beads and highways—Act relative to establishment, laying out and opening Lexington avenue (chap. 469 of Laws of 1881), not unconstitutional.</p> <p>The language of the constitution (sec. 18, art. 3), that the legislature shall not pass “a private or local bill * * * laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other lowlands,” applies to roads and highways as known or designated under the general highway system of the state. It relates to country roads and highways, and not to the streets and avenues of cities. »</p> <p>Therefore the “ act relative to the establishment, laying out and opening or extension of Lexington avenue, from Ninety-seventh street to Ninety-eighth street, and from Ninety-ninth street to One Hundred and Second street, in the city of New York” {Laws of 1881, chap. 469), is not unconstitutional.</p>

<p> Beligious societies—Trustees of, no power to divert chwrch property from, the uses <md purposes of the denomination of Christians that obtained and acquired, it. </p> <p>Under the provisions of the act of 1813, the members of a congregation of a religious corporation were at liberty to divert the church property from the dissemination of the views of the persons acquiring It to that of any other view, whether religious or secular, which might be sanctioned or adopted by a voting majority of the congregation.</p> <p>But by the acts of 1875 and 1876 {Lems of 1875, chapter 79; Laws of 1876, chapter 176), the congregation as well as the trustees of a religious society are deprived of the power afterwards to divert the church property from the promotion and dissemination of the religious views of the persons obtaining and acquiring it, to the promulgation and maintenance of any different system of religious belief.</p> <p>Instead of holding the property subject simply to the disposition of the voting majority of the congregation, the trustees were henceforward required to hold and devote it to the uses and purposes of the denomination of Christians in which the society should be included, that obtained and acquired it.</p> <p>Under these acts they became in fact as well as in name trustees of the religious corporation by whose members they should be elected, and bound to hold the church property according to the discipline, rules and usages of the denomination, including the corporation itself.</p> <p>When a clergyman, officiating as such in this society, adopted and advocated religious views at variance with the Presbyterian articles of belief, he, by force of these provisions of the statutes, forfeited his right to use this church edifice for their dissemination. The trustees, by the plain terms of the acts, were deprived of the authority to allow the church property to be afterwards so used by him, for it was made their duty to hold it subject to the rules and usages of the denomination of which this society was a member, and that precluded its devotion to the inculcation of any system of religious belief adverse to what was adopted and maintained by the Presbyterian denomination.</p> <p>The acts of 1875, 1876, in terms, secure the appropriation of such property for the denominational purposes for which it has been acquired, and they who, dissenting from that use of the property, voluntarily leave the society and enter into another more consonant to their own religious views, must consequently be regarded as abandoning and relinquishing the rights and privileges they would be entitled to enjoy if such a change had not taken place.</p> <p>The persons still adhering to the religious faith and articles of belief of their denomination, and who have.heretofore been members of the congregation, are entitled to be continued in the use and enjoyment of this church property.</p> <p>Courts of equity have jurisdiction over religious corporations so far as may be necessary to enforce the provisions of these statutes.</p>

<p> Complaint—In action of trover to recover damages for the conversion of personal property, what necessary to be averred,—Sufficiency of—Ifo demand for possession necessary and none need be alleged. </p> <p>The plaintiff's, who are the widow, two sisters and nephews and nieces of ■ Robert Berney, set up in their complaint that the latter, being domiciled in France, died in Paris in 1874, leaving a will and codicil, which are set forth, whereby it appears that plaintiffs, other than the widow of the testator, are made residuary legatees. The complaint avers also that by the law of France the personal property of the testator vested immediately upon his decease in the plaintiffs, other than the widow as residuary legatees, subject only to the payment of a particular legacy and the annuities given in the will and codicil; that said will and codicil were admitted to probate in the probate court of Montgomery county, Alabama, to James Berney, brother of testator, by collusion between said brother and Messier de St. James, though the testator was never domiciled in Alabama and had left no property there, and said probate court did not acquire jurisdiction of the subject-matter; that by power of attorney to St. James by James Berney $200,000 of United States bonds which stood in the testator’s name were converted into bonds payable to bearer, which were sold to defendants, who converted such bonds to their own use, and that such sale of bonds was not necessary to carry out any of the provisions of the will. Upon demurrer to the complaint:</p> <p>Held, that the action is simply in trover to recover damages for the con version of personal property, and that without considering the validity of the probate proceeding, all the essential parts of a declaration in trover have been complied with by defendants; that no demand for the possession of the bonds was necessary, and no demand need be alleged.</p>

<p> Assignment—What acts do not show a fraudulent intention, or void the instrument. </p> <p>Where, in a suit brought to set aside a general assignment for fraud, it appeared that the assignor, at the request of the assignee, promised in advance to render services which might be needed:</p> <p>Held, that this did not show a fraudulent intention; nor should the fact that the assignor, previous to the assignment, stated to the assignee that he expected or had reason to believe, that the assignment would prove temporary only, void the instrument where there is nothing in it showing that it was executed for any purpose other than that which is lawful.</p> <p>Though the goods of the assignor may have been sold at auction, the c fact that they were sold at private sale and it took two months to dispose of them, did not invalidate the assignment.</p> <p>Though such transfers, with preferences, do more or less hinder and delay creditors, yet, as long as the disposition is itself legal in form, it cannot be voided unless actual fraud be present, and such fraud must be proved; but it is not established by acts consistent with honesty.</p>

<p>Divorce — Evidence in action for, upon ground, of adultery—When presumption of innocence should prevail — When counsel fee should he allowed.</p> <p>Evidence in actions for divorce upon tlie ground of adultery should be closely scrutinized, and, unless clearly convincing and pointed, the presumption of innocence should prevail. In such actions the defendant is at the mercy of a witness.</p> <p>Counsel fee should be allowed where the wife has succeeded before the referee, in case the husband desires ío further prosecute.</p>

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

<p>Attachment—Injury to personal property— What a/re sufficient facts to justify an attachment— Code of Civil Procedure, section 635, 636, 3343.</p> <p>Where the affidavits on which an attachment is asked, are sufficient to establish the fact that the plaintiff was induced to part with his personal property by the fraud of the defendant, “ the estate of another is lessened,” and is so lessened by “an actionable act.”</p> <p>Where a person has been induced to part with his goods, with the distinct understanding that they were to be placed in stock with other goods of the buyer, and so used, by mixing and compounding them, as to increase the value' of the stock and consequently his ability to pay, instead of which the goods were not placed in stock, were not compounded or mixed with others, and were either pledged to raise money from parties, whose names were withheld or secreted:</p> <p>Held, that in the absence of any explanation, it must be assumed that the goods were purchased bj1, means of a deliberate false statement made with the intent to defraud.</p> <p>When it was shown by positive testimony that possession of the goods of the plaintiff was obtained by a false statement, that their whereabouts was concealed, that the names of the persons to whom they were pledged, are withheld, and that the defendant refused to consummate an arrangement and agreement which he made with the plaintiff, which it would have been to his interest to fulfill if he intended to carry on business and pay his debts:</p> <p>Held, that these facts justify the conclusion that the defendant had either assigned, disposed of or secreted property, or intended so to do, with intent to defraud his creditors.</p> <p>It is not necessary for the plaintiff to establish that the defendant had disposed of all his property. It is enough if he “has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property,” with the intent to defraud his creditors.</p>

<p>Demuebeb to complaint.</p>

<p>Change of place of trial—Domestic corporation—when sued'by a non-resident— Place of trial—Time within which the notice of motion to change ■ place of trial must be made —If not made in time,, the right to. the change is waived — Code of Civil Procedure,.sections 981,.985 986.</p> <p>Though a domestic corporation, when, sued by a nomresident, had the right to have the place of trial in the county which it had designated by its certificate of incorporation as that in which its principal office of business was to be located, yet such right is in no sense jurisdictional, and hence may be waived. By section 988 of the Code of Civil Procedure, .the notice of motion to compel the change of the-place of trial to the county of defendant’s residence must be- made-w.ithin, ten days after the five days within which a demand for such- change must be made upon plaintiff. If this is not done, the right to. the- change is waived.</p>