Volume 64 — Howard's Practice Reports

<p>Motion to set aside attachment, levy, judgment and execution.</p>

<p>Negligence — Master and servant— When master not liable for injuries to a servant occasioned by the negligence of a co-employe.</p> <p>The plaintiff, who was a servant of defendant, was injured by the falling of an elevator used to hoist grain into a storage building. The accident was occasioned by the negligence of the engineer in charge, in allowing the elevator to be carried too high, thereby breaking the rope by which it was raised.</p> <p>Held, that the defendant was not liable for such neglect of a co-employe of plaintiff.</p>

<p>On a hearing upon the writ of habeas corpus obtained by Mrs. Mary A. Clarke to compel her husband, Octavius B. E. Clarke, to give to her the custody of her son, Stuart Clarke, fifteen years old, Mrs. Clarke says that while her son, who was living with her in this city and attending school, was out upon an errand he was kidnapped by his father, aided by a detective, and forcibly taken to Troy, where Mr. Clarke resides.</p> <p>The preliminary objection was made, on the part of Mr. Clarke, that the judge had no jurisdiction to grant a writ of habeas corpus in Hew York directed to a person in another part of the state.</p>

<p>Mechanics’ lien—Law of 1880, not applicable to New York city—Chapter 370 of the Laws of 1876, the only lien law applicable to New York city.</p> <p>The mechanics’ lien law of 1880, applicable to all of the cities of the state of New York, except the city of Buffalo, does not apply to the city of New York, and the local act of 1875 (chap. 379 of the Laws of 1875), is the only lien law applicable to said city of New York.</p> <p>Where a general law is passed which, but for the existence of a local act, would be held to apply to the city of New York, it will not, in the absence of express intention to repeal the local act, be held applicable to that locality.</p> <p>Meld, that a mechanics’ lien filed for work performed on property in the city of New York, in accordance with the act of 1880, does not create a lien.</p>

<p>Constitutional law — So much of chapter 456, Laws of 1881, for the removal of the Foi'ty-second street reservoir as provides for the conversion of the land into a public park, is unconstitutional — That part relating only to the removal, cannot be saroed because standing alone. New York, city of—State no power to take away the city’s vested rights of property. #</p> <p>So much of chapter 456 of the Laws of 1881, for the removal of the Eorty-second street reservoir, in the city of New York, as provides for the conversion of land into a public park, is -'unconstitutional, because it is ;in violation of the third article of the state constitution, which declares “ that no private or local bill which shall be passed shall embrace more than one subject and that shall be expressed in the title.” So much of the act as relates only to the removal of the reservoir cannot be saved, because, standing alone, it merely orders, without cause, the destruction of valuable property, and hence is not in the line of legitimate and intelligent legislation.</p> <p>The corporation of New York, by virtue of its ancient charters, confirmed by the constitution, is the owner in fee simple of the lands in question, and the legislature has no power to order the demolition of the structure thereon, except for public purposes and upon making just compensation. Though doubtless competent, when the British rule ceased, for the state to take away from the city of New York its property rights and privileges, yet not having done so, and having recognized such rights by the Constitution of 1777, and having become amenable to the provisions of the Constitution of the United States of Ti8i, by which it was prohibited to pass any law impairing the obligations oí contracts, it is not competent for the state, under cover of exercising political powers, to take away the city’s vested rights of property. Such rights are as indestructible by legislative act as are the property rights of citizens.</p>

<p> Railroad corporation—its rights as to the purchase of the stock of other corporations. </p> <p>Though a railroad corporation may take title to all kinds of personal property, including stock of other railroad corporations, to secure debts due it, the investment by a railroad company of its corporate funds in the purchase of the stock of another corporation is not necessary in the exercise of any of its corporate powers, and is unauthorized and in violation . of the statute and is consequently ultra sires.</p> <p>While a railroad corporation remains the owner of the stock of another corporation it may collect and receive dividends thereon, and has the right to sell and dispose of the same, but has no right to vote thereon; and the stockholders of the company, whose stock is thus held, have the right to have the company holding such stock enjoined from so voting, in case it threatened to do so.</p>

<p> New York {city of)—The exclusive right p establish and regulate ferries belongs to the corporation—What is such an interference with a ferry franchise as 'to a/uthorize an injunction. </p> <p>A person running regular trips with a steamboat from One Hundred and . Twenty-ninth street, North river, to Fort Lee, New Jersey, under a coasting license, when a ferry has b.een established from One Hundred and Thirty-second street to Fort Lee, is attempting to use a ferry franchise which the corporation of the city of New York has the exclusive right to grant; and an injunction will lie to restrain such persons from interference and competition with such ferry franchise.</p>

Motion to continue a temporary injunction to restrain the defendants from removing the meter or cutting off the supply of gas from the plaintiff’s premises, at Ho. If Fifth avenue. The plaintiff asserted, that unjust and improper bills for gas, between the 18th of Hovember, 1880, and 19th of October, 1881, were presented by this company, during part of which time he was absent in Europe, his residence closed and the gas never lighted.

Before Brady, Daniels and Barker, JJ. On the 4th day of February, 1882, the relator was in the custody of the respondent, Michael L. Mead, in the city of Hew York, by virtue of a bench warrant, issued by the district-attorney of the county of Albany, dated the 3d day of February, 1882, wherein he was commanded to take into custody the relator.

<p> Memorandum, for Order. </p> <p>Note.—For reports of the case of Phelps, see Phelps agt. People (49 How. Pr. Rep., 437, 451, 470, 479; affirmed 6 Hun, 401; 72 N. Y., 334; 49 How. Pr. Rep., 462; affirmed 6 Hun, 428 ; 72 N. Y., 365); People agt. Klugman (49 How. Pr. Rep., 484); People agt. Bank of North, America (75 N. Y., 547).</p>

<p> Insurance (Life)—Reinsurance of policies by company no excuse for failure by policyholders for ten years to pay premiums—Nor is the act of reinsuring a violation of its contract with its policyholders. </p> <p>Reinsurance of policies by a life insurance company formed under chapter 463 of the Laws of 1853 is no excuse for failure by policyholders for ten years to pay premiums, the act of the company in reinsuring not being a violation of its contract with the policyholders, and if it was, they should have acted with reasonable promptness.</p>

<p>Witt— Trust in, which is void, by reason of the suspension of the power of alienation for more than two lives in being, is not cured by the death of the .persons named, during testator’s lifetime—Provision in will as to sale of dwelling-house, dependent upon the wife's consent, is made nugatory by her death.</p> <p>Where a trust attempted to be created in a will is void from suspending the absolute power of alienation for more than two lives in being, the • fact that the persons named died during'testator’s lifetime does not cure • the invalidity of the devise.</p> <p>A power of sale given to executors, though its exercise as to a dwelling-house was made dependent by a succeeding paragraph upon the wife's consent, was valid, that provision having been made nugatory by her death.</p>

Before Smith, P. J.; Harding and Haight, JJ. Appeal from a judgment of the county court of Oswego county, reversing a judgment of a justice’s court in that county. The action was brought to recover the purchase-price of furs sold by plaintiff to defendant. The defense was a general denial. The trial was had before a jury, and a verdict in favor of the defendant.

• Collins applied to the superior court for a mandamus requiring the inspector of elections of the first election district of the first assembly district in the city of Hew York, to register his name as a voter. He made an affidavit that he was the proprietor of a lighter, on which he and his family live, and that his business was the transportation of freight in the harbor.

<p> Attorney-general—When and when not authorized to appear by special counsel. ■ </p> <p>.Under the act of 1848, the attorney-general has no right to appear, by special or local counsel on the trial of a case at the circuit court.</p>

<p>Attachment—In action against two joint defendants, service of summons upon one within thirty daps is sufficient—What notice subjoined to summons is sufficient—Complaint—What sufficient verification of—Code of Civil Prdcedure, sections 459-526.</p> <p>Where a warrant of attachment is granted-in an action against two joint defendants, a service of the summons upon one of the defendants within thirty days is sufficient compliance with the provision of the Code in that regard.</p> <p>That the notice subjoined to the summons was not subscribed by the attorney, and omitted to state the day of the month on which the order for substituted service was made, were not fatal or jurisdictional defects.</p> <p>Where all the allegations of a complaint are stated to be on information and belief, it is a sufficient verification that the complaint is true as the affiant is informed and believes.</p>

<p>Insurance {Lifé)— Receiver of insolvent company — Sow damages upon policies should be computed— Revaluation of policies not to be allowed because of subsequent death.</p> <p>Where a receiver was appointed in a proceeding, instituted by the attorney-general, pursuant to chapter 463 of the Laws of 1853, for the purpose of dissolving an insolvent insurance company and distributing its assets, and by an order of the court the day was fixed (June 15, 1879), before which time the creditors of this corporation were required to file their claims. The claims represented'by these motions were presented to the receiver prior to June 16, 1879. They were all at that time running policies, and were valued as such in the declaration and payment of a cash dividend, which was ordered by this court October 8, 1879. Between June 16, 1879, and January 1, 1881, the holders of these policies died, and on the eighth day of January of the latter year a motion was made for their revaluation because of such death:</p> <p>Held, that the damages of every policy of insurance should be computed according to the facts as they existed upon the last day of presentation of claims to the receiver, and that in the exercise of a sound discretion the court should not lake into consideration the fact that death had subsequently occurred in making such computation.</p> <p>Held, further, that when the policies had been valued, and a dividend made which was ascertained and computed upon the facts as they existed on the day when claims were required to be presented, they should not again be revalued because a death had since occurred. •</p>

The action was begun by service of a summons with notice, and the complaint was served on the defendant’s attorney after appearance. Before the time to serve the answer expired the defendant settled with the plaintiff personally and obtained a receipt in full of all claims, and the defendant’s attorney notified the attorneys for the plaintiff of the settlement.

Before Smith, P. J., Hardin and Haight, JJ. Appeal from an order of the Steuben Special Term, denying a motion to set aside a taxation of costs for the plaintiff, and to direct the clerk to tax costs for the defendant. The complaint in this action is for a single act of trespass alleged to have been committed by the defendant on the 22d day of April, 1880, upon lands situated in the town of Fremont, Steuben county, Hew York. .

<p> Ejectment, through forfeiture under covenant in a deed—Pleading. </p> <p>Certain lands were granted to defendants by the mayor, &c., of the city of New York, plaintiffs, the grantees covenanting that within three months after they “ should be thereunto required by the parties of the first part,” they would construct, at their own cost, in accordance with ordinances or resolutions of plaintiffs, such street or streets as fell within the limits of the lands conveyed. In 1875 a corporation ordinance was passed directing that curb and gutter stones be set, and sidewalks be flagged, on a certain street embraced within the grant; and another ordinance, subsequently passed, directed .that the said street be paved, the work being required in each ordinance to be done under- the direction of the commissioner of public works. In an action of ejectment to enforce a forfeiture of the grant for alleged breach of the covenant, in which these facts are alleged in the complaint, and that defendants have not done the work, or any part thereof, although six years have elapsed since they received notice of the ordinances.</p> <p>Held (sustaining demurrer to the complaint), that to place the defendants in default, the complaint should have at least shown that the street was in a condition to receive the pavements and sidewalks, and that no impediment to the immediate doing of the work proceeded from any act or omission of the plaintiffs; and that notice of the resolutions and ordinances did not amount to the notice or requirement mentioned in the covenant, as the ordinances did not direct that the work was required to be done by the defendants.</p>

Motion in behalf of the attorney-general to file exceptions to the report of Charles H. Winfield, as referee, recommending the allowance and payment to John J. Anderson, a former receiver of the defendant, of a claim for services as such receiver and counsel fees.

The complaint charges “ that the defendant on or about March 1, 1882, purchased and agreed to pay $531.85 for a boiler then in his possession belonging to the plaintiff.” The defendant answered denying that any such purchase was ever made. Upon the conclusion of the plaintiff’s case the complaint was dismissed and the plaintiff thereupon moved for a new trial, and this is the application now under consideration.

Before Beady, Daniels and Barker, JJ. This is an ^action for a divorce a vinculo. The complaint charged the defendant with having committed adulteries, and demanded a dissolution of the bonds of matrimony, and that hé be awarded the custody of an infant 'child, a daughter of the age of about eight years. The bill was taken as confessed. In the final decree, the custody of the infant child was awarded to the plaintiff.

<p>Pleading — Answer—Demurrer—Defendant may not answer and demur to same cause of action —May he compelled, to elect whether to answer or demur.</p> <p>Where a paper served as an answer is clearly an answer and demurrer, the defendant may be compelled to elect whether he will abide by his answer or demurrer.</p>

<p>Application for an injunction to restrain the defendant from acting as president of the common council of Troy.</p>

<p>Motion to vacate order of arrest.</p>

<p>Nuisance — Are telegraph poles and wires a nuisance —Who may maintain an action for the removal of a nuisance — Jurisdiction and practise of the court inflations in which loth legal and equitable relief is demanded, directed to he inied at the circuit — Nonsuit—When not to he granted.</p> <p>An action may be maintained by the people of the state, through the attorney-general, for the removal of an alleged nuisance, and for an injunction restraining its continuance.</p> <p>Where an action in which both legal and equitable relief is demanded in the complaint, is directed to be tried at a circuit court, and the jury have passed upon the questions of fact, it is appropriate and competent for the circuit judge to render a judgment, not only for the damages found by the jury, but also restraining the defendant from the further continuance of the nuisance.</p> <p>If there is any evidence, however slight, tending to prove the plaintiff’s cause of action, the rule is that it is not within the power of the court to. dismiss the complaint or order a nonsuit. Nor can the court grant. a nonsuit on the assumption that the plaintiff’s witness is not to be believed. Furthermore, in determining the propriety of a nonsuit, the court is legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduces to prove, although their correctness may be controverted by the defendant’s witnesses.</p> <p>While it may be lawful and proper for a telegraph company to erect and construct a telegraph line through the streets of a city, it must be constructed so as not to incommode the public use of the street, and the fixtures and poles erected must be necessary.</p> <p>In an action brought by the attorney-general in behalf of the people against a telegraph company for the purpose of obtaining both legal and equitable relief, to wit, to restrain and abate the alleged nuisance, and for damages for the injury alleged to have been sustained therefrom:</p> <p>Held, that if the plaintiffs should succeed in establishing, to the satisfaction of the jury, that the poles in question do incommode the public use of the street in an unnecessary and unreasonable manner, not warranted by the statute, the plaintiff will be entitled at least to recover nominal' damages, and a nonsuit is properly denied if the evidence shows that the plaintiff is entitled to recover even nominal damages.</p>

<p>Street or pa/rks in cities—Bights of owners of lands abutting thereon — Basement.</p> <p>The rule is, that where a conveyance is bounded upon a street or highway in the absence of any expression, showing a contrary intent, the grantor will be deemed to have intended to convey the fee to the center line of the street or highway. If, however, it is bounded by the easterly or westerly or the exterior bounds, or commences and runs from some fixed monuments so as necessarily to cause the line to run on the exterior line of the street or highway, so that it is apparent that it was the intention of the grantor to reserve to himself the fee of the highway, there the deed must be construed accordingly. It is a question of intent to be determined from the reading of the instrument.</p> <p>Another rule is, that where the owner of land in a city lays out a street through, or a park in it, and then sells off lots on either side, bounded thereon, the purchasers are entitled to have the space of ground laid out left open forever for their use and enjoyment.</p> <p>Where, as in this case, the Holland Land Company (who formerly was the owner of most of the land now embraced in the city of Buffalo); in the year 1814 laid out this open space and named it Cazenovia terrace, and it ever since has been kept open and used as a public street and park, the plaintiffs and their grantors in making their purchases understood that the same was so laid out and dedicated for that purpose:</p> <p>Held, that even if it be conceded that the plaintiffs who are the present owners of some portion of the, land abutting on said terrace, are not the owners of the fee of the lands embraced within the terrace, they are the owners of an easement therein, of which they cannot be deprived except by a voluntary conveyance, or by the taking of the same under the rights of eminent domain.</p> <p>The city is not the owner of the fee of the lands embraced within the terrace and on which it proposes to erect the building; and until it acquires the fee, or extinguishes the easement, it has no right to take and occupy the same for any other purpose than that for which the lands were originally dedicated.</p> <p>Note. —This case has been affirmed in the general term on the foregoing opinion.</p>

<p>Westbrook, J., presiding.</p> <p>Motion to confirm report of a referee. The petitioner, who was a creditor of McGarvey, applied for an order to compel his committee to pay the debt. A reference was ordered to pass on the account and to report to the court. It appeared that proceedings had been taken under the statute against McGarvey, which resulted in an inquisition declaring him an habitual drunkard, dated and found December 18, 1879, but not filed until December 7, 1880. Between those days the indebtedness was contracted. The petitioner had no knowledge of the proceedings against the drunkard. Other facts are stated in the referee’s report.</p>

At the September (1881) term of said court of sessions, an indictment was found against the defendant for grand larceny, alleged to have been committed in the city of Cohoes, August 2, 1881.

<p>Code of Civil Procedure, section 1778— Time in which order of judge directing issues presented by the pleadings to be tried, &c., as provided by this section must be served—Practice in marine court.</p> <p>In a suit against a domestic corporation, brought in the marine court, the time in which an order, under section 1778 of the Code of Civil Procedure, must be served, is limited to six instead of twenty days.</p>

<p>Application for a peremptory mandamus.</p>

<p>Telegraph companies — No right to set their poles in front of persons’ lands or residence without making compensation therefor — An action may he maintained for thMr removal—Ttfectment.</p> <p>An action of ejectment may be maintained by the owner of lands against a telegraph company for the removal of poles which have been set by such company on the side of the road in front of the plaintiff’s lands and residence without first having made compensation.</p> <p>Under the act of 1853 (Laws of 1853, chap. 471).,amending the act of 1848, providing for the incorporation and regulation of telegraph companies, such companies cannot enter upon and use lands (which includes public roads, streets and highways) without first compensating the owner or ' owners thereof. It must make payment precede appropriation.</p>

<p> Trade-mark—Arbitrary fancy names subject of—Injunction. </p> <p>Plaintiffs invented a name for certain puzzles or games and applied thereto the names of “ sliced animals,” “sliced birds,” and “sliced objects:”-</p> <p>Meld, upon motion to continue injunction, that these names were arbitrary fancy names and the proper subject of a trade-mark.</p>

<p> Witt—When widow cannot take loth dower and a provision made for her by the will of her husband—When widow to make election. </p> <p>Where a specific provision by the testator in his will, for his wife, inconsistent with a right in the widow to demand a third of the land to be set off to her, she must make her election, though the testator does not in terms declare that such provision is to be taken by her in lieu of dower.</p> <p>Where the testator by his will clothed his executors with a power of sale of all his estate, real and personal, in such form as to work an equitable conversion of the realty into personalty, and vest them with the title to all the property, the income of a portion of the proceeds of the estate when sold to be paid to the widow for life, the remainder of the pro- • ceeds being absolutely disposed of, the widow cannot take both dower and the provision made for her by the will, the claim of the one being inconsistent with and repugnant to the other.</p>

<p>Railroads&emdash;Proceedings to acquire title to real estate&emdash;Practice in suck, proeeedic'igs.</p> <p>In proceedings to acquire title to real estate under chapter 140 of Laws of 1850, where the petition stated that the company “ is a corporation organized under and in pursuance of the laws of the states of New York and New Jersey for the purpose of constructing,” &c., and then goes on to state how and under what laws it is organized:</p> <p>Held, that this is a sufficient compliance with the statute which requires the petition to state, in effect, that the company is duly incorporated.</p> <p>The act (Laws of 1869, chap. 917) authorizing consolidation gave the successor all the rights of every description belonging to the predecessor, and consequently an allegation in the petition that one of the predecessors (naming it) of this company made and filed the proper map, &c., is a sufficient compliance with the statute.</p> <p>It is not necessary to give in the petition a history of the negotiations, or to state the evidence from which is derived the fact of inability to to agree by reason of an excessive price being asked. When the reason stated is in substance that the price asked by the owners is excessive, it is sufficient.</p> <p>An objection that a second application should not be granted without special cause shown therefor, is not a preliminary objection. This is a matter to be raised and disposed of at the trial.</p> <p>The statute does not require separate petitions for lands needed for the route, and for lands needed for operating the road, nor to postpone the application for the latter until the former is obtained.</p> <p>Whether or not, under the amendment of 1876, the company must tender the amount of the former award before renewing the proceeding, is a question to be determined at the trial.</p>

<p>Motion by plaintiff for injunction.</p>

The plaintiff obtained a judgment against the defendants at special term, from which judgment the defendant Curley appealed to the general term, where the judgment appealed from “was reversed and a new trial ordered, with costs of the appeal to the appellant to abide the event ” (See 15 J. & S., 393).

Before Sedgwick, C. J., Freedman and Arnoux, JJ. Motion by defendant to vacate or resettle judgment by clerk upon order made by a former general term composed by judges other than those now sitting.

<p>Practice as to entry of judgment— Order—Special term cannot pass upon intent of general term order.</p> <p>After the settlement of a general term order, and the taxation of costs, the entry of judgment" follows, as matter of course, in conformity to the order, no notice of entry of judgment being required.</p> <p>The special term cannot pass upon the question whether a general term order expresses the intent of the court.</p>

<p>1Mortgage — Deed—Estoppel—Acceptance of deed of certain premises with an assumption clause that the conveyance was subject to “ all liens and incumbrances of record on said premises,” estops the party from contesting the validity of mortgage upon the premises at that time upon record.</p> <p>The defendant, after having accepted a deed of certain premises with an assumption clause that the conveyance was subject to “all liens and incumbrances of record on the said premises,” is estopped from contesting the validity of a mortgage upon the premises at that time upon record, and is liable for any deficiency that may arise upon the sale of the mortgaged premises upon foreclosure of said mortgage.</p>

This was an appeal from an order made by the supreme court, in the second department, consolidating two. actions brought by the.plaintiff against several defendants to partition certain real estate situated in the counties of Hew York and Kings, in which he had become vested with an interest as devisee, under the will of his father, deceased.

Before Brady, P. J., Barker and Daniels, JJ. This action was brought to set aside judgments and executions alleged to be fraudulent as incumbrances in the way of plaintiffs’ attachment. The defendant contested the right of plaintiffs to institute such suit, they not being judgment-creditors. An injunction restraining the sheriff from satisfying the executions of the defendants was granted by judge Barrett, from which an appeal was taken.

<p>Mandamus against a judicial officer — <Summary proceedings — Code of Civil Procedure, sections 3334-2238—entertaining an application by a landlord to remove a tenant under the statute relating to summary proceedings is in the discretion of the justice.</p> <p>When the time of a justice is required and devoted to other business, having precedent demands upon him as a member of the court, he is reasonably excusable for not entertaining an application by a landlord to remove a tenant under the statute relating to summary proceedings.</p> <p>While the language of the act is mandatory in its terms, it could not have been intended to deprive the justice of the discretion vested in' judicial officers.</p> <p>The allowance of the writ of mandamus is discretionary, and the discretion will not be exercised against a judicial officer in such a case.</p>

Motion to confirm referee’s report respecting the claims of the “ general agents ” of the corporation for damages growing out of contracts for service.

<p>Appeal to court of appeals-? Stay of proceedings— Code of Civil Procedure, sections 2045, 2046, 2061, 2662—Sow stay obtained under these sections.</p> <p>A relator for a habeas corpus who is remanded to custody on a bench warrant, and desires a stay under sections 2045, 2046, 2061, 2062 of the Code of Civil Procedure, pending an appeal to the court of appeals, must himself personally execute the recognizance within the jurisdiction of the court.</p> <p>Note.&emdash; This is a further proceeding in S. C., ante, p.41-50.</p>

<p>Deed of settlement&emdash;Terms of&emdash;Power granted ample to justify the done thereof by will, to charge the trust estate with the paying of her debts &emdash; Absolute power of disposition embraces everything necessary to carry it out effectively.</p> <p>Edgar H. Laing, by a deed of settlement executed in 1846, settled the rents and profits of certain property upon his wife Sophia for life, and, upon her decease, “ then upon trust to convey and transfer said premises to such person or persons and in such manner as the said Sophia, by her last will and testament, * * * which she is hereby authorized to make and execute, may direct, limit or appoint. ” She, in 1876, executed her last will, reciting, among other things, that her mother had recovered a judgment against her for $25,000, and referring to a contract entered into by her, “ in and by which I also bind myself to pay and discharge the said judgment of my mother. * * * Now, therefore, in and by this will, pursuant to the authority contained in said trust deed, I do hereby authorize, ratify and confirm such application of so much of my principal as may be found necessary to carry out said agreement.” She gives her residuary estate to her executors in trust, after paying all debts.</p> <p>Held, that the mother of 1he testatrix, referred to above, is entitled to have the -estate and property embraced within the deed of settlement, and referred to in the will, applied by the executor and trustee under the will to the payment and satisfaction of the judgment.</p>

Appeal by plaintiff from a judgment of the general term, first department, dismissing her complaint upon the merits. The facts as they appear from the pleadings and testimony are as follows: The plaintiff is a married daughter of the defendant. Her maiden name Was Emma J. Heath; she was born in 1845 ; her father being Lurad 0. Heath, who died in May, 1873. After his death, and on the 6th December, 1873, her mother, the defendant, married John Libbey.

Jacob Weeks died in the city of Hew York, September 9, 1881, leaving his widow, but no child nor issue of any child, him surviving. By his will, dated Hay 9, 1881, which was duly admitted to probate September 20, 1881, he devised and bequeathed to his widow certain real and personal estate in lieu of dower, in which was included an' estate for life in the premises, Hos. 750, 752, 754, 756 Fifth avenue, in the city of Hew York.

<p>Criminal Law — Might of police magistrates since the Penal Code to commit for disorderly conduct— Code of Criminal Procedure, sections 887,899, 99, 901, 64, 74, 963, 963—Penal Code, sections 391, 734, 735, 736.</p> <p>Since the enactment of the Penal Code, police magistrates have the right to commit persons for disorderly conduct, in default of bail for good behavior.</p> <p>The power possessed by police justices under the former statutes to order persons convicted of disorderly conduct to find surety for their good , behavior for a period not exceeding twelve months, and to stand committed for a period not exceeding twelve months, in default of giving surety, has not been affected by the Code of Criminal Procedure, or by the Penal Code.</p>

<p>Before Learned, P. J., Bockes and Westbrook, JJ.</p> <p>Appeal from an order dissolving an injunction.</p>

This is a motion to make the injunction permanent against Danzig’s action in ¡New York, and for instructions to the receiver.

Motion to resettle papers on appeal from special term to general term. Buckingham & Paulson, copartners and creditors of Swezey & Dart, who made a general assignment, applied for and obtained an order for the examination of the assignor Dart under the general assignment act of 1877. A motion was thereafter made by Dart to set aside the original order directing his examination.

<p>Election laws — Duties of boards of county canvassers—Power of supreme court by writ of-mandamus to compel board to reconvene and correct error.</p> <p>Prior to the passage of the act of the legislature of 1880 (chap. 460), the court had not the power to compel a board of county canvassers to reconvene and reconsider their work. By that act, however, whenever it appears by affidavit that error has occurred, the court can reconvene them, and by writ of mandamus compel them to correct the error.</p> <p>The power of the board of canvassers, which is derived only from the statute, which says: “The original statement of the canvass in each district shall then be produced, and from them the board shall proceed to estimate the votes of the county, and shall make such statement thereof as the nature of the election shall require ; such statements shall then be delivered to, and deposited with, the county clerk;” imposes upon them purely ministerial duties, and cannot be extended by them beyond a mere count of what appear on their face to be the original returns, and which are apparently regular.</p> <p>Nothing is committed to the judgment or discretion of the board. Their duty is arithmetical merely. They are to cast up the votes appearing upon the returns of the district inspectors, which are produced before them. They are not authorized to institute any inquiries as to the authenticity of the returns, but are to take those produced before them, if they are regular on their face, and if they are not regular on their face, they must return them to the inspectors for correction.</p> <p>Where it appeared that at the last general election in this state 629 electors residing in the third election district of the town of Lyons, voted fot the various candidates and measures there offered to the people for theit suffrages, the board of county canvassers, when in session for the pur pose of estimating and determining the number of votes which had been cast in the county, by a bare majority vote, wholly rejected the returns made by the inspectors of the election district, and consequently these 629 voters were not recorded for or against any such measures or candidates:</p> <p>Held, that a peremptory writ of mandamus should be issued requiring the board of county canvassers of Wayne county to reconvene and to receive the original statements or returns of the third election district of the town of Lyons, and to estimate, determine, certify and publish the votes therein contained, and to correct tlieir former determination thereon.</p> <p>Held, further, that although in the operation of the election laws, there may be some essentials entering into the methods of taking and returning the votes by which the inspectors of election, who are in some sort the agents of the electors at large, may violate the statutes to the extent of working in a given case a practical rejection of honest votes, yet it is not the province of the board of county canvassers to adjudge it. They discharge their whole power and duty when, as accurate accountants, they return to the state canvassers the results of the apparently and ostensibly fair figures which may be presented to them.</p>

<p>Will—Residuary estate given absolutely to three persons—Letter of insirua tions to residuary devisees — Effect of—Secret and unlawful trust not established.</p> <p>The testatrix, desiring to devote the bulk of her estate to the furtherance of religious, educational and benevolent objects, and being apprised of the difficulty of legally reaching the ends proposed through express provisions in her last will and testament, made in her will an absolute and unconditional gift of her residuary estate to three persons, leaving also a letter of instructions to these residuary devisees and legatees. In this letter, which is not attested and is not referred to in the will, she said she relied upon them, immediately upon her decease, to take such measures as might be necessary to accomplish her wishes. She had been told that the devisees and legatees could spend every dollar in any w:ay they saw fit, and that she must rely on their good faith and sense of right. The plaintiffs brought this action to set aside the residuary clause in the will, claiming that the letter of instructions is to be construed together with the will, and that the whole, form part of one plan to accomplish an illegal purpose, and that the devisees and legatees of the residuary estate take the same under unlawful and void • trusts, and therefore, so far as the residuary clause is concerned, it is a fraud upon the heirs at law and next of kin.</p> <p>jHeld, that the secret and unlawful trust, as alleged, is not established, and that the residuary clause of the will is valid as a devise and bequest.</p>

<p>Application for a peremptory mandamus.</p>

It is alleged in the complaint in this action that the defendant, who was the nominee of the national democratic party for vice-president, on or about 'August 29, 1880, employed the plaintiff to speak in public in defendant’s behalf and advocate his election to office throughout the state of Indiana; that plaintiff went from this state, where he then resided, to Indiana, and from September 4 to October 12, 1880, made twenty-five speeches in different places in that state in…

<p>Jurisdiction — Foreign corporation — Superior court no jurisdiction of an action brought by a non-resident against a foreign corporation— Objection «may be taken advantage of at any time — Code of Civil Procedure, sections 266, 267, 1780.</p> <p>The superior court has no jurisdiction over a foreign corporation in an action brought by a non-resident against such corporation, and the objection to the jurisdiction of the court may be taken at any time, although it has not been taken in the answer.</p>

<p>Motion to vacate attachment.</p>

This action was brought to recover a sum of money upon a written instrument in the words and figures following, to wit: “SUPREME COURT. AMANDA M. BENTLEY, Respondent, against CHARLES WATERMAN, Appellant. ■ ' —...... ......

<p>Motion for an order directing a commission to issue to examine witnesses out of the state in proceedings supplementary to execution.</p>

This action was brought for a specific performance of a contract of sale of real property. Plaintiff’s title to the premises was through a foreclosure of a mortgage therein, by advertisement. The mortgagor was not served with the notice, but died pending the proceedings, leaving a widow and one child. The widow was served with the notice. No administrator of decedent’s estate was appointed.

<p>Costs — against administrators—When personally liable for—Code of Civil Procedure, section 8246.</p> <p>Executors and administrators suing in their representative characters, untiecessarily in cases where the cause of action (if any) accrues to them in their individual right, and failing to recover, are personally liable to the defendant for costs.</p> <p>Where the record shows that the cause of action (if any) arose after the death of the testator or intestate, such right of action rests in the executor or administrator in his private right, and he cannot in such case escape the penalty of costs by suing in form in his representative capacity, unnecessarily, if he fails to obtain judgment.</p> <p>In such case the-defendant may enter judgment against the plaintiff for costs without an order of the court permitting him to do so.</p>

Or the petition of one of the relatives of Stewart Church, accompanied by affidavits, in compliance with section 2325 of the Code of Civil Procedure, an order was granted by this court, directing that a commission issue to a person therein named for the purpose of causing inquiry to be made, pursuant to sections 2328, &c., concerning, among other things, the alleged lunacy of said Church.

<p>Costs — Where m an action in which costs are in the discretion of the court, a judgment is rendered in the supreme court, without any provision for costs, and on appeal to the court of appeals such judgment is affirmed, with costs — What costs a/re recoverable— Code of Civil Procedure, sections 8228-3230.</p> <p>Where, in an action in which costs are in the discretion of the court, a judgment is rendered in the supreme court, without any provision for costs, and on appeal to-the court of appeals such .judgment is affirmed, with costs, the only costs recoverable are the costs in the court of appeals.</p> <p>The defendant H. had assigned a mortgage to the insurance company, with guaranty of payment. The plaintiff, as the receiver of the insurance company, commenced an action to foreclose the mortgage, making H. a party defendant. H. defended upon the ground that his guaranty " of payment was discharged by the neglect of the company to foreclose, as he requested it to do. His defense was sustained at both circuit and general term, but overruled in the court of appeals, which court “ did order and adjudge that the judgment of the general term of the supreme court appealed from as relates to defendant H. be and the same is hereby reversed and modified by inserting a provision adjudging the defendant liable for any deficiency, and, as so modified, affirmed, with costs to the appellant:”</p> <p>Held, that as the judgment of the lower court is modified so as to render a judgment in favor of the plaintiff, but without costs, and as so modified is affirmed, with costs to the appellant, costs in the court of appeals only, and no other are given.</p> <p>First. The plaintiff was not entitled to recover costs in the supreme court as of course.</p> <p>Second. The supreme court neither at special or general term has awarded them.</p> <p>Third. The court of appeals has awarded costs only in that tribunal; and,</p> <p>Fourth. As costs have never been allowed for the proceedings in this court, the allowance of them to the plaintiff by the clerk was erroneous.</p>

Writs of certiorari have been allowed in this ease to review the action of the tax commissioners upon an assessment made by them upon the personal estate of the relator for the year 1882. The par value of its stock (as shown by the return to the writs) was $7,000,000.

Before Learned, P. J, Bockes and Westbrook, JJ. Appeal from a judgment of the Fulton county court affirming a justice’s court judgment. Action to recover upon a note to plaintiff’s intestate, alleged to have been made by defendant, the making and delivery of which the latter, by his answer, denies. He also pleads payment.

<p>Trust deed &emdash; Mortgage agreement&emdash;Obligation to pay interest when not suspended.</p> <p>The defendant corporation gave a first mortgage on its property and franchises, in which it was provided that §12,500 of the surplus of its net earnings, after paying interest on the bonds secured by the mortgage, should be paid semi-annually to the mortgage trustees, as a sinking fund for the redemption of the bonds. The moneys in this fund, with the accumulations of interest thereon, were to be invested in the purchase of these bonds, if such purchase could be made at not exceeding ten per cent above par, the bonds so purchased to be indorsed as belonging to the sinking fund, and they were to “remain in force’’ and the interest thereon was to be continued to be paid as part of the capital of the sinking fund. In case the bonds could not be purchased at ten per cent above par, no further payment was to be made to the sinking fund until the price lowered to that point, when such payment of $12,500 semi-annually was to be resumed. Purchases of bonds were made until January, 1879, when they advanced in value beyond the limit imposed. But interest on the bonds held for the sinking fund continued to be paid. In this action, by a preferred, stockholder of the corporation, to restrain this payment:</p> <p>Held, (1) That the obligation to pay interest on the bonds in the sinking fund has not by the terms of the mortgage been suspended. (2) The provision of the Illinois statute, that the payments into the sinking fund shall not exceed two per cent of the gross earnings, means that such payment shall not exceed two per cent of the gross receipts of the year in which the payments are made ; and at any rate, as the company already had a corporate existence under the laws of Indiana, the provision of the Illinois statute could not affect-the terms- of the mortgage agreement.</p>

Before Davis, P. J., Brady and Dwight, JJ. Appeal from an order denying defendant’s motion to set aside an order for service of summons upon him by publication. The affidavit on which the publication order was obtained was entirely on information and belief, without stating the grounds of deponent’s information. It was accompanied by the usual sheriff’s certificate that defendant was a non-resident, and with due diligence could not be found.

This action was commenced in the district court of the city of New York for the fourth judicial district, by summons. Upon the return of the summons the plaintiff, by way of complaint, alleged that the defendant had converted to his own use certain property belonging to her. The defendant answered by a general denial. The cause being tried, the justice found in favor of the plaintiff for fifty dollars damages and twenty-two dollars and fifty cents costs and extra costs.

( Before Davis, P. JDaniels and Dwight, JJ. Appeal from a judgment rendered by justice Beach at special term, March, 1880, dismissing complaint, with costs. The following is the opinion: Beach, J. This bill is filled to enforce a specific performance by the defendant Emrich of a contract with the plaintiff for the sale of real estate situate in the city of Mew York.

The complaint alleged that the defendants are a corporation and its objects are to assist its members and their families in case of sickness or death. That np to the 16th day of July, 1875, the plaintiff was a member, and on that day he was illegally and wrongfully expelled from the society, and since that time he has been refused permission to participate in the privileges and rights of such membership. .

<p>Summons—Service by publication — Papers upon which order for, may be made— Oodeof Civil Procedure, sections 438, 439.</p> <p>An'order for the publication of a summons must be founded upon a verified complaint, showing sufficient cause of action against the defendant to be served.</p> <p>Where a complaint was verified before a commissioner for the state of New York residing in Philadelphia, and no certificate of the secretary ■of state of the state of New York, certifying to the genuineness .and official signature of the commissioner, was attached to the alleged verification;</p> <p>'Held, that such a complaint is not a verified complaint, and the justice who made the order for publication never acquired any jurisdiction to make this order.</p>

Before Beady, P. Jam.d Daniels, J. Appeals from two orders, one allowing the defendant to reargue a motion previously made and decided, or to renew such motion upon further papers, and the other granting the motion allowed to be so made, and canceling the judgment affected by it.

<p>The Northampton National Bank was robbed of the property of itself and of various special depositors, including the plaintiff, to the amount of about $1,600,000. Five years later all but $130,000 of the property was recovered from the thieves. Among the property not recovered were bonds to the value of $10,180 belonging to the plaintiff. The other facts appear in the statements of counsel and the opinion of the court.</p>

Harperd Y. D. Yan Epps died March 20, 1858, intestate; letters of administration issued to John C. Yan Epps August 6, 1858. On the 10th day of ¡November, 1882, Abram W. Yan Epps, a brother of the deceased, presented a petition to the surrogate, praying that the administrator be required to account, and that such further proceedings be had as are necessary to enforce the payment to the petitioner of his share of the estate of the deceased. A citation was issued.

Before Sedgwick, C. J., Tbuax and O’G-orman, JJ. Appeal from an order made at special term directing the clerk to tax certain costs. The plaintiff obtained, on the trial of the action, a judgment against the defendants for a certain sum of money. .From this judgment the defendant Curley appealed to the general term of'this court, which reversed the judgment of the court below, with costs of appeal to the appellant, to abide the event of a new trial.

Before Leabned, P. J., Bocees and Boabdman, JJ. Appeal from an order of the special term awarding a peremptory mandamus. The facts are stated in the opinion.

This action was commenced for the recovery of $1,000 damages under an alleged breach of warranty on the sale and purchase of a trotting horse. The cause was tried before the court without a jury.

<p>Motion upon an order to show cause to vacate an injunction..</p>

Demurer to complaint. The judgment of the special term-,, rendered upon the demurrer in this case, was affirmed by the-general term, which adopted the following opinion of the-special term (S. C., 26 Hun, 473). The court of appeals-affirmed the judgment of the general term, March 6, 1883.

<p>Mechanics' lien law — Notice of Us pendens filed on the ninety-first day after notice of lien when the ninetieth day falls on Sunday, is of no effect—Lien cannot be revived where it ceases by lapse of time.</p> <p>Under the mechanics’ lien law of 1875, which is applicable to the city of New York, a notice of lis pendens, filed on the ninety-first day after notice of lien, though the ninetieth day fell on a Sunday, is of no effect, and the person filing the Ms pendens has no standing in court .as a lienor.</p> <p>All conditions of the statute must be strictly complied with, or the lien will be lost.</p> <p>Where a lien ceases by lapse of time, it cannot be revived. It becomes wholly void.</p>

On December 30, 1818, the defendants executed and delivered to James Boggs a lease of the lot of land now known as ¡No. 116 Chambers street, in the city of ¡New York, for the term of sixty-three years, to commence September 25, 1818, at an annual ground rent of $150, payable half yearly, on the twenty-fifth days of March and September in each year during the term.

<p>Justices court—Appeal to county court—When appellant may demand new trial in appellate court — What order of country court appealable— Code of Civil Procedure, sections 1342, 3062, 3068, 3063, 2940, 2949.</p> <p>Defendant served in time regularly a notice of appeal from a justice’s judgment, to the county court, and in the notice of appeal inserted the words, viz. : “Said appellant hereby demands a new trial in the appellate court.” Thereupon, the plaintiff, upon an affidavit and notice of motion, asked the county court to dismiss the appeal. The notice of motion points out no irregularity or grounds for dismissing the appeal to the county court. But the affidavit used upon the motion referred to the pleadings in the justice’s court, and added that the plaintiff was informed by counsel, and verily believe that a new trial of such action could not be claimed or had in the county court, and that said appeal is unauthorized by law, and cannot be sustained. On motion of plaintiff the appeal was dismissed, unless the defendant amend his answer and pay plaintiff’s attorney ten dollars costs of the motion. On appeal from such order:</p> <p>Held, first, that the order made by the county court, dismissing the defendant’s appeal to that court, is appealable.</p> <p>Second. No sufficient reason was presented to the county court for dismissing the appeal, unless the defendant amend his answer and pay plaintiff’s attorney ten dollars costs of motion.</p> <p>Third. The appeal to the county court was regular] and the appellant was entitled to have either a new trial in that court, or a hearing and consideration by the county court of the questions of law presented by the appeal.</p> <p>Fourth. The defendant had, by his answer, denied all the allegations of the complaint, and that formed an issue upon which he was entitled to have his appeal determined without an amendment, even if the second branch of his answer was defective. This would he so whether there was a new trial in the county court or simply a hearing of the appeal upon the questions of law.</p>

<p> Insurana {Life)—When failure to pay premium causes policyto lapse. —What must he shown to relieve pasty. </p> <p>Where a party failed to pay the premium upon his policy of life insurance which became due six months prior to the failure of the company and the appointment of a receiver :</p> <p>Held, that if he wished to be excused from the consequences of his omission to perform his part of the contract he must at least show his readiness and willingness to perform, and that he refused performance upon the ground that the other party had broken the contract by allowing itself to become insolvent.</p>

<p>Demurrer to complaint.</p>

An application for a peremptory mandamus having been denied, the counsel for the respondent moved for an extra allowance and for costs as in an action. The motion was denied, the facts further appearing in the opinion. W. R. Foster, Jr. (Foster & Wentworth), for respondent, for the motion.

<p>Married woman—Complaint— Demurrer—When rule, of lex loci contractus applies. .</p> <p>In an action against a married woman to recover,for alleged breach of contract by her to sell mining property in the territory of Arizona, a defense set up by her that, according to the laws of Arizona, her interest in the mine was subject to the 'absolute control of her husband is insufficient in law, it not appearing by the pleadings that defendant is a resident of Arizona, and the contract having been made in the city of '’■New York. J</p>