Volume 65 — Howard's Practice Reports

Motion, by defendant to compel the plaintiff to elect between two separate statements of a single cause of action, and also to state the interest of the defendant Thompson in the insured property with- more certainty and definiteness in the Gomplaint..

<p> Will—construction of. </p> <p>A., who died in 1814, leaving two sons and two daughters, by his will gave his residuary estate to his son B. and to his heirs; but in case B. should die without lawful issue, he gave it “to my remaining children, share and share alike.” The other son died in 1859, leaving four children, the plaintiffs in this action. B., the residuary devisee, died in 1881, without issue:</p> <p>Held, that plaintiffs are entitled to their father’s one-third interest in the estate.</p>

<p>Extrinsic evidence to explain mill — Specific legacies.</p> <p>By the different clauses of the testator’s will, gifts of railroad stock owned by him were made to his children, and to other persons and societies, literary and religious, in various amounts. By the twenty-fourth clause he directed, that should there be a deficiency of assets to pay in full all the bequests, the bequests to his children in the first four clauses should first be fully paid.</p> <p>Held, that the gifts of railroad stock were not severally specific legacies required to be paid in full, without reference as to whether there were assets to pay the pecuniary legacies provided in the first four clauses.</p> <p>Parol contemporaneous evidence not admissible to show intention of testator.</p>

This was a suit to annul a marriage between plaintiff and defendant, and to set aside a conveyance to defendant by plaintiff at the time of the marriage, on the ground that the marriage was brought about and the conveyance obtained from plaintiff by defendant by means of fraud and undue influence. The cause was referred to Hon. A. D. Wait, who found the following facts and conclusions of law: 1.

Wolcott. The following is the opinion of the special term : Van Voest, J.— The last will and testament of Gardiner H. Wolcott is presented for construction. The provisions thereof, concerning which questions have arisen, may be shortly stated.

<p>Appeal from judgment of general term of the supreme court, third department, affirming a conviction in the court of sessions of Albany county. The case at general term is fully reported (64 Sow. Pr. P., 189).</p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Penal Code—constitutionality of \ in its relation tointer-state commerce—Power of the court. </p> <p>If the Penal Code is susceptible of such a construction as would interfere with the inter-state traffic of an express company, such provisions are unconstitutional and void, because they violate the provisions of the Constitution of the United States, which delegates to congress the exclusive power to regulate commerce among the several states.</p> <p>The court has power, in a proper case, to grant an injunction where the police board threaten to interfere with the business of an express company in the transmission of express matter in transit through the state of New York.</p> <p>Although an express company would not be justified in transacting its ordinary business or receiving and delivering merchandise on Sunday, yet they may, despite the provisions of the Sunday clause of the Penal Code, carry express matter through the city of New York on Sunday, from the Jersey City ferry to the Grand Central depot, and if the police threaten to interfere “the court will grant an injunction to restrain them from such interference.</p>

<p>Action for specific performance.</p>

<p>Bent—Apportionment of— Laws of 1875, clhaptm' 543 — When rent shall be apportioned.</p> <p>-Prior to the passage of the act (Laws of 1875,. chap. 543), there was, as a general rule, no apportionment of rents,, except by agreement. The landlord or owner of the premises, at the time the rent became payable, collected and received the same, and the landlord or owner of the property during a part of the period, such rent was earned, hut not sustaining towards it either relation, at the date the rent was payable according to the terms of the lease had no redress against the party receiving the payment except by special agreement.</p> <p>By the statute (Laws o/1875, chap. 543), which reverses the common law rule, the right to the rent follows the ownership of the estate during the period it was earned by the- property.</p> <p>Where prior “ to the” 11th day of June, 1881, oni which day E. became the owner thereof by a conveyance from F., E. occupied the premises as the tenant of F. By the terms of the lease the rent was payable on the first day of each month, in advance. With the transfer of this property by the deed on the 11th day of June,. 1881, the lease was also assigned, hut on that day the receiver demanded' and received from E the rent for the [property during such month of. June,, which by the lease had become due on the first day of the month and', was a payment in advance.</p> <p>Held, that as F. had title during eleven days only in the month of June, 1881, he had no right to receive and retain the rent for the entire month hut was entitled to eleven-thirtieths thereof, and'the remainder belonged to E., the owner, and that F. should restore to E. the amount of rent earned after the eleventh day of June.</p>

Trial without a jury. The above named George M. Mittnaeht instituted summary proceedings under the statute, to recover the possession of premises No. 129 Fifth avenue; in the city of New York. The petitioner claims such possession as the purchaser at a sheriff’s sale of all the right, title and interest of Lydia C. Cocks, a judgment debtor of, in and to two certain leases, to wit: 1. One made by Mary A. Kieff to the said Lydia 0.

<p>Judgment— When court will not entertain jurisdiction of actions to set aside ■ judgments obtained upon actual trials upon conflicting evidence.</p> <p>Where issues have been litigated in a former action, they cannot be retried in another between the same parties upon allegations that fraud, perjury and conspiracy have been committed by the prevailing party and his witnesses.</p> <p>Although it is a legal principle well established, that where a judgment has been obtained by fraud, conspiracy and perjury, that equity will interfere to restrain its enforcement, still, like other general principles, this must be taken to apply to a case where proof of such fraud, perjury and conspiracy is admissible.</p> <p>Therefore, when it appears that the same matter has actually been tried, the party is estopped to set up such fraud and crime, because the judgment is the highest evidence and cannot be contradicted.</p>

This was an action of ejectment tried at the circuit of the supreme court on the 28th day of October, 1880, before judge Beach and a jury, to recover possession of the house and lot No. 331 East Forty-first street, New York city, under a lease for two years under seal made by the owner of the fee, Gustave Bamsperger, to the plaintiff for two years, from May 1, 1880, to May 1,1882.

<p>Motion for a peremptory mandamus to compel the respondent, as county treasurer of Albany county, to pay sal ary to the relator as clerk to the coroners of the county.</p>

<p>Appeal from order of special term dismissing several writs of habeas corpus, and remanding appellants severally to the custody of the warden of the city prison.</p>

<p>Will—construction of—Gift of the whole restiduarry estate to two persons named, one of whom dies before the testator — Effect of such death.</p> <p>Where the testator gave the residue of his estate to his brother and sister, “their heirs, executors, administrators and assigns,” and the brother died before the testator, leaving children, but the sister survived him:</p> <p>Held, that the gift being of the whole residuary estate to the two persons named and not a share of it to each, the sister who survived the testator by force of the will itself took the whole property. The words “ their heirs, executors and assigns ” being mere words of limitation and not of purchase, do not have the effect of substituting the heirs of the brother in place of their ancestor upon his death, and do not affect the application of the rule that as the brother and sister take as a class, the survivor, .. in the event of the death of one of the beneficiaries in the testator’s lifetime, takes the whole.</p>

Oh a motion to tax sheriff’s fees on an attachment, defendant alleged that larger sums of money had been claimed by, and paid to, the sheriff during his (defendant’s) absence in Europe, and insisted that such moneys were paid as fees; that such fees were illegal and were liable to taxation.

<p>Attachment—Appeal — District courts — Manner of granting attachments in district courts — üpon a/ppeal to common pleas from a district court judgment all proceedings before tTie justice may be reviewed— Code of Civil Procedure, sections 2917, 3211.</p> <p>Under the new Code, as before, the decision of a district court justice upon motion to vacate an attachment which had been previously issued in the action may be reviewed on appeal.</p> <p>The Code has made no change in the manner of granting an attachment in a district court, and the attachment must be allowed by the justice and signed by the clerk.</p>

<p>Railroad—Condemnation of land for railroad purposes — What interest or estate in property can or m/ust a railroad corporation acquire by condemnation under the statutes.</p> <p>Under the general railroad act of this state, a corporation, by proceedings thereunder, does not acquire the fee of the land condemned, but . only the right of “ use * * * for the purposes of its incorporation during the continuance of its corporate existence.” Its acquisitions must therefore be limited to its corporate needs; and an objection to a petition asking for a commission to appraise property needed for the location of a railway, that it specifies only the surface use thereof as that to be acquired — the description being drawn in that form to avoid the payment for iron ore supposed to be below the surface — is not well taken, and must be overruled.</p>

<p>(Hubs — Expulsion of members—Record of the proceedings of the club — Its effect as evidence—Action to restore an expelled member—Examination of witnesses as to the ground for expulsion — What questions are admissible — Examination before trial.</p> <p>In an action by a member of the Union Club, who has been expelled, to have the resolution of expulsion adjudged null and void:</p> <p>Eeld, that the minutes and report in writing of the investigating and governing committee, is the best evidence of what took place in the meeting of such committees, and upon that the resolution of expulsion was based; and any statement of the witness (who was a member of the governing committee), as to what the committee determined by its action would be his opinion only, and as such is inadmissible. It should not be allowed to such a witness to place his interpretation upon or give his opinion of the proceedings and actions of the committee, which is evidenced by the writings:</p> <p>Eeld, also, that it would be improper for this witness to state only his judgment as to what conduct on the part of the plaintiff he deemed to be improper and prejudicial to the club. The vote is directed to be by ballot, and when the witness deposited his ballot he settled that question as far as he was concerned. He can no more be asked to state the particular ground upon which he based his judgment than a judge, a juror or arbitrator could, after judgment, be questioned as to the reason or basis of his determination..</p> <p>Held, further, that the members of a committee of investigation or discipline should not be subjected to have their action or conduct in committee meetings, assembled for discussion and decision, made the subject of public discussion and comment. It would greatly embarrass them, and prove to be a restraint upon a free debate on the questions involved.</p>

This action was brought against two trustees of a manufacturing corporation by a creditor of the company, to recover the amount of a debt due from it under section 12 of chapter 40 of the Laws of 1848, the company having failed to file its annual report. A demurrer was interposed by the defendants on the ground that there was a defect of parties defendant, only two out of three trustees having been joined.

This was an action to foreclose .a mechanic’s lien. The complaint alleged the furnishing of materials and the filing of the lien. The answer put in issue both of these allegations.

The plaintiff, as assignee of two certain bonds and mortgages executed by the defendant, brought suits to foreclose the same, to which among other defenses defendant interposed the plea of usury. The plaintiff had judgment in his favor, and upon appeal therefrom, the general term of this court decided as follows: “ Pee Cubiam. — From an examination of the evidence in this case, we think substantial justice between the parties requires a retrial of the action.

<p>Appeal from an order denying a motion to vacate an attachment after judgment entered and execution issued.</p>

<p>Railroads — Street obstruction by—The extent of their liability — Right of action by owner of the fee of premises to recover damages sustained by reason of the closing of St. Johns Park, the erection of a freight depot thereon, the construction and continued existence of a steam railroad through Hudson street, the operation of the railroad and the manner of its operation.</p> <p>In an action brought by plaintiff as owner of the fee since 1874, of premises situated on the north-westerly corner of Hudson and Laight streets in the city of Mew York, to recover damages sustained by reason of the closing of St. Johns Park, the erection of a freight depot thereon, the construction and continued existence of a steam railroad, through Hudson street, the operation of a railroad and the manner of its operation :</p> <p>Held, 1 st. That the plaintiff has no claim by reason of the discontinuance of the park or square or the erection or the mere continuance of a freight depot thereon.</p> <p>Under the circumstances the plaintiff cannot complain that the depot ■erected by the railroad covers the whole area formerly occupied by the - park or square. He is bound to show an easement in the park or square either by express grant or by dedication. In either case the burden of proof is upon him. No express grant is shown.</p> <p>Before the law will, in the absence of an express grant, protect a mere right to a prospect or air over land separated from the plaintiff’s premises by an intervening street, it must affirmatively appear that the prospect and the air were within the contemplation of the original parties as objects of the dedication.</p> <p>The mere facts that Trinity church in 1797 had a map made of its property, which,’among other parcels, contained a tract marked Hudson square, and that in 1805 one of the plaintiff’s predecessors in title purchased from Trinity church the premises in suit' as a lot bearing a certain number on said map, do not establish that one of the objects for which the square was marked out was to secure to the lot sold a prospect and a passage of air over the space.</p> <p>Held, 2d. That the plaintiff has no cause of action for damages by reason of the construction and continuous existence or maintenance of the railroad.</p> <p>The law of the public street of a city is motion. Any use of a street, though a new one, which does not materially abridge or obstruct the right of passage and repassage, of ingress and egress, and to light and air of the abutting owner, gives no cause of action; but every unnecessary material abridgement or obstruction, though of a temporary character, and every continuous material abridgement or obstruction, though made in the pursuit of a lawful business, and to some extent called for by circumstances arising in the course of such pursuit, by which the right of an abutting owner to pass and repass, to have free access to and egress from his premises, and to enjoy the light and air from the street, is unreasonably affected, gives to the injured party, in case of special damage therefrom, a right of action against the offending party for the recovery of the damages actually sustained; and in order to determine any such question each case must be disposed of on its own facts and circumstances.</p> <p>This principle applies to all infringements of and obstructions in the streets of a city, irrespective of their nature and of the persons by whom they are caused.</p> <p>Held, 3d. That the plaintiff, upon the proofs now before the court, and such additional proofs as he has offered to give and may properly give upon the issues as now restricted, has the right to have his case submitted to the jury.</p> <p>Held, 4th. That the rule of damage is the impairment of the rental value of the premises from the year 1874, when the plaintiff became the owner, to the time of the commencement of the action, and the impairment must be determined with reference to the condition in which the premises were in that year, and with reference to the uses for which the premises were then rented, or to which they could have been put in the condition they were in, but for the excessive exercise, if there was any, of defendant’s business. But before any such special damage can be recovered it must appear affirmatively that it was directly and wholly caused by some act on the part of the defendant, which, within the rules laid down, was actionable if accompanied by special damage.</p> <p>In this case the jury rendered a.verdict in favor of the plaintiff for six cents damages.</p>

<p>Attorney— Effect of conviction of felony on Ms rigM to act assuoh—Pardon by governor will not entitle Mm to restoration.</p> <p>A conviction of an attorney of felony forfeits his right to act as such. If stricken from the roll, a pardon by the governor will not entitle him to restoration. The court will, however, examine the proofs of alleged innocence in determining whether or not he ought to he restored. In the present case the court held the presumption arising from a conviction was not overcome, and refused restoration.</p>

The following is a copy of the indictment, or two counts of the same, as found by the grand jury t STATE OF NEW YORK, NIAGARA COUNTY The jurors of the people of the state of New York, in and for the body of the county of Niagara aforesaid, upon their oath present that George- Moore, late of the city of Lockport, in the county of Niagara aforesaid, on the sixteenth day of November, in the year of our' Lord one thousand eight hundred and seventy-eight, and on divers other days…

Ann Schroeder, formerly Ann Canty, brought habeas corpus proceedings to recover the possession of her two infant children which she claimed were illegally withheld from her by their aunts. The respondents made return that they held the children by virtue of an agreement signed by the father of the children and the relator, their mother. The facts will be sufficiently found in the opinion. The special term judge dismissed the writ on the merits, with costs.

On the 9th day of March, 1882, the plaintiffs obtained an attachment against the property of the defendant in an action, as recited in the attachment, to recover “ damages for injury to personal property of plaintiffs, in consequence of the negligence and fraud of defendant in fraudulently procuring credit of plaintiffs for goods sold and delivered to defendant, and affidavit showing that the defendant is a natural person, who has assigned, disposed of and secreted, and is…

<p>Supplementary proceedings—What costs are collectible try execution under section 779 of the Code of Givil Procedure.</p> <p>Where supplementary proceedings were instituted upon return of an execution, and during the course of the proceeding ten dollar’s costs were allowed by the judge, and also the further sum of thirty dollars at the close of the examination, when a receiver was appointed:</p> <p>Held, that the ten dollars allowed by the court are clearly motion costs and are collectible by execution.</p> <p>Held, further, that in supplementary proceedings the final costs cannot be deemed motion costs, and are not, therefore, collectible by execution.</p>

<p>Ejectment — Adjudication that a deed though absolute on its face was a mortgage— Who and to what extent bound by it—Adverse possession by one claiming under a life tenant cannot be had against a remainderma/n during the life of the life tenant</p> <p>A. having an eighth interest in certain lands, subject to a life estate in B., made a conveyance of his interest to B. Thereafter A. died, leaving the plaintiff, his widow and three children him surviving; thereafter one of said three children died, leaving this plaintiff, his mother, and a brother and sister him surviving.</p> <p>Thereafter B. died, and a partition suit was thereupon instituted, to which plaintiff was not a party, wherein it was adjudged that the conveyance from A. to B. was a mortgage.</p> <p>Held, that the judgment that the conveyance from A. to B. was a mortgage was binding on the purchasers at the partition sale and those claiming under them.</p> <p>Second, that the plaintiff inherite d a life estate as heir of her said deceased son.</p> <p>Third, that one claiming under the life tenant cannot have adverse possession against a remainderman during the life of the life tenant.</p>

<p>Motion for the continuance of an injunction restraining the defendants from filling in the space on the south side of plaintiff’s pier at Forty-third street, on the North river, in the city of New York.</p>

<p>Practice—Examination before trial—Death of defendant — Evidence — The testimony of a party taken at the instance of his adversa/ry is admissible in his own behalf after the death of the latter— Code of Civil Procedure, sections 870, 829 — Stipulation made between parties not vitiated by the death of defendant.</p> <p>'Where parties to an action have been examined before trial, each at the instance of the opposite party, under section 870 of the Code of Civil Procedure, for the purpose of assisting such opposite party to prepare for trial, and such examinations are reduced to writing and signed by the respective parties, and the defendant subsequently dies and his representative is substituted in the case, whereby the plaintiff becomes incompetent under section 829 of the Code of Civil Procedure to give testimony concerning personal transactions had with the deceased:</p> <p>jSeld, lsi. That the plaintiff could then prove such personal transactions by reading his previous deposition to the jury, although such deposition was taken by the defendant’s counsel for their own benefit and not for benefit of plaintiff.</p> <p>'2d. That it was error to dismiss the plaintiff’s complaint for lack of proof which was contained in such deposition.</p> <p>3d. That a stipulation in the action made between the parties during the lifetime of defendant was not violated by his decease.</p>

The plaintiff, in her complaint in this action, alleges that one Andrew Piper, of Herkimer county, died in 1842, and left by his will all of his property to his two sons, James and Frederick, subject to certain charges, and also subject to the following limitation, viz.: “ That in case of the death of my son Frederick Piper, without lawful issue, the part and portion of my estate, real and personal, hereinbefore devised and bequeated to him shall belong to, and is hereby…

<p>Insurance (life) —When policy does not lapse for non-payment of premiums— Necessary steps to forfeit policy—When policy not surrendered — Notary appointed for one county cannot perform duties in another—When costs not allowed against receiver.</p> <p>On February 28, 186.6,.upon the application of B. to F., the general agent of the Globe Mutual Life’ Insurance Company at Poughkeepsie, such insurance company issued its policy of insurance No. 1,377, whereby, in consideration of the sum of $328.60 then paid, and the payment of a like sum on or before February twenty-eighth, in each and every year thereafter, it insured the life of said B. for the benefit of his wife and surviving children. On March 1, 1871, on application of B., policy No. 1,377 was exchanged for registered policy No. 1,891, containing the same conditions. On February 38, 1879, F., the general agent of the company, according to his custom charged B. with the annual premium, crediting the company with the payment to himself of such premium. On March 31, 1879, F. died, and after his death B. called at the office of the company in New York and was told that the policy .had lapsed by reason of the non-payment of the premium of February 38, 1879, but that if he would assent to a re-examination they would give him a paid-up policy for four years. B. signed in his own name and that of his wife a written surrender of the policy. On the next day the company sent a messenger to Poughkeepsie with a paid-up policy and took from B. and wife a surrender of the policy, they signing the same for themselves and as guardian of W. F. B., their infant child. The signature to such surrender and acknowledgment of execution were made in the city of Poughkeepsie to one C. B., a notary public appointed for and residing in the city and county of New York. The claim founded upon policy 1,891 has been duly presented to the receiver within the time limited for that purpose:</p> <p>Held, 1st. That the policy did not lapse by reason of the non-payment of the premium due February 38,1879. As between the insured and the company it was paid on the day it was due. The company had a credit for the amount thereof on the books of their agent.</p> <p>2d. No step has been taken to forfeit the policy as required by chapter 331 of the Laws of 1877; and without giving the notice as required by said act there could be no forfeiture.</p> <p>3d The attempted surrender by B. was ineffectual. The insurance was for the benefit of his wife and children, and he had no authority in fact, jmd_s£-sitcit.fact the company was informed, to execute the surrender for his wife. X _</p> <p>4th. The surrender by Eire wife was ineffectual as the statute (3 5. S. [1st ed], 163, see. 911) requires it Eo be acknowledged in the same manner as a release of dower. The notary who took the acknowledgment was an officer appointed for and residing in New York and could not execute its duties in Poughkeepsie.</p> <p>The resistance to this claim by the receiver being upon reasonable grounds and in good faith no costs should be allowed against him.</p>

Carl Hafner, a naturalized citizen of the Hnited States, died in 1874, leaving seven brothers and sisters, or their children, as his only next of kin. They were all non-resident aliens, residing in Wurtemberg, except the defendant Renner and the plaintiff and his sister, and a nephew of the deceased, named John Phillip Michael Hafner, who was a resident alien.

<p>toreáosme of mortgage— Usury—Mortgage by wife to secure husband’s debt—Surety — Release by extension of time — Pleading in.</p> <p>A mortgage for $100,000, executed by A. and his wife to plaintiffs, as mortgagees, covered property of the wife as well as that belonging to her husband. The'bond, which was joint and not several, was executed by A. and B., but not by the wife of A. Of the $100,000 thus loaned $28,250 was used to pay a debt to C., for which the latter had a specific lien upon the separate property of Mrs. A, which lien was relinquished by such payment. The mortgage was not paid at maturity, and in 1875 and 1870 the mortgagees received from A. several promissory notes, aggregating $80,000, payable to his order and indorsed by him. The receipt given for the notes contained these words: "Each note to be applied to the redemption of bond dated September 5,1873, at maturity, if paid: ”</p> <p>Held, 1st. That conceding that in equity, as to the amount secured by the mortgage over and above what was used of the moneys realized thereon to relieve her separate property, Mrs. A. occupied, through the mortgage upon her separate estate, the attitude of surety onty, yet her property was not released by the acceptance of the promissory notes, the payment of the mortgage debt not having in fact been extended thereby, the notes not having been sold or discounted.</p> <p>2d. Neither did A. occupy the position of surety, although the bond was joint and not several, and his property and estate were not discharged by his death, he having been liable for the payment of the debt to 0., which was paid out of the moneys advanced by the mortgagees.</p> <p>2d. The omission of the plaintiff to serve a reply to such parts of the answer as set up payments upon the mortgage is not to be considered an admission that such payments were made</p> <p>Judgment 'of special term affirmed by general term (28 Hun, 641).</p>

Motion by the-plaintiff for-the continuation of an injunction restraining the- defendant from interfering with the construction of a ferry-house and the improvement and extension of the ferry terminus at the foot of Forty-second street, in the city of Mew York, and by the defendant for the continuation of an injunction restraining the performance of the work by the plaintiff.

<p>Motion to strike out answer as frivolous.</p>

Motion on order to show cause why writ of certiorari should not issue against the comptroller, &c., in relation to the removal of the petitioner from office and the right of petitioner to he represented by counsel, &c.

The action is brought to set aside the “ merger agreement,” and the motion before the court was to vacate, under the new amendment of the Code, a preliminary injunction restraining the carrying out of the agreement. Following is the opinion:

This action was begun in the court of common pleas for the city and county of Rew York. In due course defendant filed a petition for removal to the circuit court with accompanying bond. The ground of removal was that the action arose under the laws of the United States for the reason that the defendant was incorporated under an act of congress, and that such act was, therefore, an ingredient in the cause.

Mbs. J ulia Miller is now in Ludlow street jail, upon an order of arrest in a suit brought to recover the value of a large quantity of laces stolen from the firm by one of its employes, and which it was claimed Mrs. Miller received, knowing that it was stolen property. Motion is made to vacate the order upon the ground that she being a married woman cannot be held upon an order of arrest in a civil action.

<p>Appeal from an order of the special term granting extra allowance on directing judgment for defendant on demurrer to complaint.</p>

<p>Supplementary proceedings — Judgment for costs only — When order to examine debtor of judgment debtor will be granted — Code of Civil Procedure, sections 2441,2458.</p> <p>Proceedings supplementary .to an execution may be taken upon a judgment for costs only, rendered against a plaintiff. Appearance is predicable of every party to an action wlao submits himself to the jurisdiction of the court, whether plaintiff or defendant, and plaintiff’s appearance in the action" is complete when a summons in proper form, signed by himself or his attorney, has been served .upon the defendant.</p> <p>An affidavit which states that H. was indebted to the judgment debtor in a sum exceeding ten dollars, to-wit,, '$100, is sufficient to give the judge jurisdiction to grant an order to examine-a person having property of a judgment debtor. A man is indebted equally whether his debt is due or to become due.</p>

<p>Degacy to executors in addition to commission—Death of executor before probate of will — Claim to legacy by his representatives, when allowed.</p> <p>TRe testatrix, by her will, gave $1,000 to each of her executors, ‘ ‘ in addition .to the commissions or allowances they would be entitled to bylaw,” as s.uph executors. After the will had been offered for probate, but before it was actually proved, one of the executors named therein died.</p> <p>Held, that the deceased executor having accepted the trust and performed acts which showed an intention to assume all the responsibilities and duties of the office, it is sufficient to entitle his representatives to the legacy, although they might not have a legal claim for commissions.</p> <p>The testatrix directed that $8,000 be applied in the purchase of a house and lot in the. city of New York, the use of which she gave to her housekeeper during life, and on her death the house to go to the niece of testatrix.-</p> <p>Held, that the clause is valid, and not void as being a naked and inactive trust, as, if the duties imposed are in the nature of a trust, they are not wholly inactive.</p>

The action was brought for the foreclosure of a purchase-money mortgage. The defendant Eenesslaer Post, in his answer, alleged fraud and deceit in the sale to him of the premises in question, concerning the lien of a judgment affecting said premises, and demanded judgment for a cancellation of said mortgage and a recovery by him of the amount paid thereon, or that the amount of the judgment be deducted from the amount of the mortgage.

It appears that on June 8,1836, Cornelius W. Van Voorhis, the plaintiff, was seized and possessed in fee of two certain lots of land in the city of New York, on the east side of Fifth avenue, commencing twenty-five feet two inches south of Ninetieth street, and being each twenty-five feet two inches wide, front and rear, and 102 feet two inches in depth.

<p>Creditor's action against trustee of manufacturing corporation — When enforcement of judgment will he restrained.</p> <p>A loan of $6,000 was made by A. to B., as president of a corporation, B. giving as collateral Security $6,000 of the corporation’s bonds, of which he was the owner. The indebtedness was not paid, and A. caused the bonds to be sold at auction. They were purchased by one C. for the nominal sum of $640, in the interest of and for A., the seller of the bonds. A judgment was recovered by C. against R,, who was trustee of the corporation, for the amount of the bonds, upon the ground that the trustees had failed to comply with the statutory requirement as to filing annual reports. 0., without the knowledge of A., satisfied the judgment and it was discharged of record. A motion to set aside the satisfaction because A. was the real owner of the judgment, was denied. A. then, in a suit in his own name against R. and the other trustees for the same defaults in filing- annual reports, recovered a judgment for the loan to the corporation. The fact that A. sued in C.’s name, and that both claims belonged in fact to A., were unknown to R. and his co-trustees until long after both judgments were obtained. R. then brought this action to enjoin A. from enforcing his judgment.</p> <p>Held, that the action sought to be enjoined being clearly an attempt to recover the same penalty twice by a course of proceeding altogether indefensible in equity and morals, the court below was entirely justified in holding the defendant strictly to consequences that followed on the recovery of the first judgment and compromise and discharge thereof by the accomplice of the defendant in the wrongful scheme to extort the double penalty (Affirming 8. 0., 61 How., 128).</p>

<p> Attorney—Action by wife against husband for separation—Settlement by parties—Claim foi'counsel fee by attorney for wife, how enforced against husband—Costs. </p> <p>In an action "by wife for a separation from her husband for cruel and inhuman treatment, after issue had been joined the wife returned to live with her husband, and the plaintiff’s attorney, in the name and behalf of the wife, made a motion for an order compelling the defendant to pay the attorney for plaintiff a counsel fee for his services in ■ the action:"</p> <p>Held, that the attorney had mistaken his remedy. Before the settlement can be set aside or treated as fraudulent, some good reason therefor must be shown, and the plaintiff herself is entitled to notice of any application for such purpose:</p> <p>Held, further, that if the attorney as such has any claim for counsel fees or costs upon the defendant, he must, in his own behalf, notice his motion or bring Ms action to enforce such claim.</p> <p>When no costs are asked for in the notice of motion none should be allowed.</p>

<p>Code of Civil Procedure, section 629 — Cases that do not fall within the class of actions contemplated by the late amendment to this section.</p> <p>The court has power, notwithstanding the pendency of the appeals in the court of appeals, to vacate the injunction orders upon defendants executing undertakings as provided by this new amendment of section 629 of the Code of Civil Procedure, if proper and sufficient grounds are presented.</p> <p>But when, as.in these cases, the general term has decided that the distribution, without consideration, of a large amount of stock was in violation of positive law, and consequently the payment of dividends on such stock would be illegal, and that plaintiffs have a sufficient standing in court to call for the enforcement of the law, they do not fall within the class of actions contemplated by the amendment.</p> <p>No court has any right or power, upon an offer by a corporation to indemnify a few individuals against pecuniary loss, to grant in effect permission to such corporation to continue to violate the law of the land (See, also, Metropolitan Elevated Railway agt. The Manhattan Railway Company, ante, 277 ; and Metropolitan Elevated Railroad Company agt. The Manhattan Railway Company and The Sew York Elevated Railroad Company and others, ante, 319).</p>

Motion to- readjust costs as taxed by the clerk of Ulster county, upon an affirmance by the general term,, with “ the costs of the appeal,” of an order of the special term granting a peremptory writ of mandamus.

<p> Practice —Answer may be interposed by wa/y of amendment to demurrer. </p> <p>Where a demurrer is served, an answer may be interposed by way of amendment.</p>

<p>Trusts for pious purposes — IMien attempted trusts for such purposes will be declared void—When trust fails for want of a beneficim'y — Bight of a legal representative of a husband to sue for a chose in action belonging to the wife at the time of her death, and not reduced to possession by the surviving husband during his lifetime.</p> <p>The right of a husband to administer upon the estate of his deceased wife confers upon his legal representative the capacity to sue for a chose in action belonging to the wife at the time of her death, and not reduced to possession by the surviving husband in his lifetime.</p> <p>Moneys belonging to the wife of plaintiff’s intestate were placed by her in the hands of defendant, with the direction and upon the condition that after the death of herself and her husband he should use the fund to have masses said by a Roman Catholic priest for the repose of their souls:</p> <p>Held, that though such a use is not void upon general principles of public policy, and the trust is not invalid, because it relates solely to personal property, nor because it was not declared in writing, yet it cannot be upheld, because there is no beneficiary or cestui que trust in existence, or capable of coming into existence under it; and if the trust fails, the disposition made of the money cannot stand, because it amounted neither to a gift nor to a disposition by last will and testament. There was only a mere naked deposit of money into the hands of the agent, with certain instructions concerning the employment and payment from time to time of a third person, namely, a Catholic priest, for services to be rendered, and the principal may at any time revoke the instructions and recover his property, and if he does not do so in his lifetime, and dies intestate, his death revokes the authority of the agent, and as the title must go somewhere, it goes to the administrator of the intestate. Erom the moment the administrator objects, the agent must cease paying out. But up to that time he will be protected for acts done in good faith.</p>

<p>' Oorpm'ation— A creditor at large cannot maintain action against directors for misconduct— Code of Oml Procedure, sections 1781, 1782.</p> <p>The term “creditor,” as used in sections 1781 and 1782 of the Code of Civil Procedure, means a judgment creditor and not a creditor at large. A creditor at large cannot maintain an action for the relief provided in section 1781.</p>

<p> Attachment—Insufficiency of affidavits. </p> <p>Affidavits that about a week after defendant’s goods, amounting to about $250, were delivered to the defendant, he made a general assignment for the benefit of his creditors, with $10,000 of preferences, and that plaintiff’s goods, which were adapted to defendant’s business, could not be discovered in his store, are insufficient upon which to grant an attachment when the assignment was assailed by no fact indicating it to have been in any respect inconsistent with the legal rights ®f defendant’s creditors, and no probably fraudulent disposition of ike goods was shown.</p> <p>A statement in an affidavit that other affidavits had been made and were on file in the office of the clerk, from which it appeared that defendant had purchased goods which had in like manner disappeared, did not strengthen plaintiffs case in the absence of extracts from these affidavits containing a statement of the facts referred to.</p>

<p>Appeal from an order of the general term of the marine court, affirming a judgment rendered at the trial term thereof by Mr. justice McAdam.</p>

<p>Appeal from an order directing the examination of the defendant as a witness before trial.</p>

<p>Injunction affecting realty—When may he issued— Code of Civil Procedure, sections 608,1638.</p> <p>Where, in an action brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim to the property adverse to that of the plaintiff, it appeared that the defendant was actively interfering with the possession by plaintiff of the premises in controversy, an injunction may be issued under section 608, and that immediately following it.</p>

<p>Contract to sell real property—Vendor and vendee — Meaning of the words ‘ ‘stores and premises ”— Seller bound to prove on trial that on day and place specified in contract he was ready and willing to perform the same as therein specified—Purchaser need not perform contract because seller offered to pay the money value of fixtures that had been taken away.</p> <p>The plaintiff contracted to sell and the defendant to purchase certain property, under the general description in the contract of “ store and premises; ” and plaintiff represented that he was offering the premises for sale just as they then appeared, with the water-closets, basins, &c., as parts of and belonging to the properly to be sold. Between the making of the contract and the meeting of the parties for the purpose of executing the conveyance, the building had been dismantled by the removal by the .tenant, who owned them, of the gas and water pipes, and other fixtures, so’fhat it was at that time in an untenantable condition:</p> <p>Held, that though no fraud was shown on the part of the vendor, and though the fact that .the fixtures belonged to the tenant was not known to him, a verdict for the defendant in this action to enforce the contract was properly directed, for the plaintiff was hound to show upon the trial that his assignor was, on the day and place specified in the contract, ready and willing .to perform the contract by a compliance with its terms, which he could only do under the circumstances by conveying the property substantially in the condition in which it was when it was sold. Nor could he claim the performance on the part of the purchaser by offering to pay to him the money value of the fixtures that had been ■ taken away.</p>

The action was brought to recover the sum of $30,000 damages against the defendants, who are attorneys and counselors at law, for false imprisonment. The complaint alleges that the imprisonment was malicious, unlawful and wrongful.

Deborah Orser died in 1879, leaving a last will and testament dated September 10, 1877. The will was prepared by Isaac F. Brown, a nephew, and the testatrix, after bequeath-. ing various legacies, gave and bequeathed to said Isaac F. Brown and to Margaret Miller the residue of her estate, real and personal, to be equally divided between them.

<p>Execution, when may issue— Oode Oimi Procedure, sections 1365-1375.</p> <p>Where, in an action in the nature of a creditor’s bill founded upon a judgment and execution issued and returned nulla Iona, it appeared by affidavit that the judgment was for deficiency in foreclosure; that the judgment of foreclosure was rendered September 25,1876; the referee’s report of sale made October 25, 1876, showing a deficiency, for which the judgment was docketed on January 22, 1878:</p> <p>Held, that such docketing was the entry of judgment within the meaning of the Code, and that the issuing of the execution on the 13th of December, 1882, was within five years, it being intended by sections 1365 and 1375 to limit the time within which execution may issue, of course, upon any judgment to five years after the right to issue the same has fully accrued.</p> <p>Whether, when the assets consist of a claim against an insurance company, arising upon a policy of insurance, in the name of defendant, upon the life of her husband, such interest is assignable and can therefore be reached by execution, quare.</p>

Motion by plaintiff for judgment on account of the alleged frivolousness of this answer. The complaint was for the foreclosure of a mortgage charged (with a bond accompanying the same) to have been executed for a good consideration by the defendant Church to the plaintiff, and delivered to him. It did not aver that the plaintiff was the owner and holder of such bond and mortgage.

Robert Hallenbeck was convicted in the court of special sessions of the city of Albany of the crime of petit larceny and sentenced-to pay a fine of $500, or to imprisonment in the Albany penitentiary for 500 days, on the 29th day of May, 1883.

This is a writ of habeas corpus in the case of J. Fook, a Chinese sailor, who it is claimed was deprived of his liberty by Captain Samuel J. Rickard, on board the ship Pembrokeshire.

<p>Hew York (city of) — Public usee to which streets may be properly devoted— Erection of poles for electric lights.</p> <p>The placing of poles necessary for the purpose of bearing the wires which; transmit the electricity to the electric lamps for lighting the streets, is. among the public uses to which a street may properly be devoted.</p>

This suit was for a divorce a mensa et thorog commenced by serving a summons and complaint, together with a petition and notice of motion for alimony and counsel fees. Before the return day of the motion the plaintiff and defendant amicably adjusted their differences.

<p> Will—Construction of—When trust attempted to be created too indefinite, and the discretion vested in the trustees too wide to be upheld. </p> <p>The testator, after making specific legacies, gave his wife, during her life, four houses in Fifth avenue, devising the remainder, after the life estate, by the twenty-fourth clause of his will, to his executors, “ upon trust to use the same as in their judgment they deem to be for the best interest of my whole estate,” with power to mortgage the land for any • sum in their discretion, .and after paying and keeping paid all taxes and assessments upon the property, and after expending such amounts as they may deem necessary to keep the said premises in good order and repair and properly insured against loss and damages by fire, to divide and pay the remainder at any time within ten years to each and every of his legatees (except two servants), &c. By the twenty-fifth clause, the testator gave the fee of this Fifth avenue property “ to each and every one of my legatees herein named (except two servants) to be divided among such legatees in the proportion which his, her or their specified legacies hereinbefore named and bequeathed, bear to each other:”</p> <p>Held, that the twenty-fifth clause is a plain and legal devise of the Fifth avenue property to take effect upon the termination of the trust estate created by the twenty-fourth clause, and is not void for uncertainty, either as to the objects of the testator’s bounty or their relative proportions. The twenty-fourth clause, however, is invalid, the trust attempted to be created being too indefinite, and the discretion vested in the trustees too wide to be upheld, and the lands sought to be partitioned vested on the termination of the life estate in the persons designated as the testator’s legatees, and by him declared to be his legal heirs (See S. C., 64 How., 276).</p>

' Upon a complaint which alleged that the defendant was constructing an embankment upon its own land, upon which was located its railway track, which had slipped upon the land of the plaintiff, and was liable to further slip and slide upon such land and ruin a spring claimed to be worth $1,000, the plaintiff had obtained an injunction enjoining the doing of further work on such embankment by the defendant.

<p>Discovery of looks to prepare for trial — 'When will be refused.</p> <p>$n an application for an order for the discovery of books, the petitioner <• stated that “he is unable to name specifically all the books 'which will be necessary,” and the inspection is intended to caver any books which the defendants have relating to the transactions in which the plaintiff was interested.</p> <p>Held, that such a discovery is unusually broad and sweeping, and not such as courts are in the habit of granting ip aid of common-law actions for the recovery of a specific sum of money.</p> <p>The petition must state what information is wanted, and that the books referred to contain such entries. It is not enough to show that they probably will furnish the desired information. The petition should point to the places where the information sought for exists and describe the entries.</p> <p>If the discovery is plainly attainable by competent and available testimony, a production of books should not be allowed without special circumstances.</p>

Appeal by Albert Day from an order denying a motion for leave to issue an execution for the collection of costs and disbursements allowed to be recovered under the decision of the court of appeals.

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

<p>Motion by plaintiff for a new trial on exceptions, ordered to be first heard at the general term.</p>

<p>Application for a mandamus against the superintendent of insurance to compel him to fix the fees of the relator as the receiver of the Atlantic Mutual Life Insurance Company.</p>

<p>Pleading — question of.</p> <p>The defendant S. was charged in the complaint with having induced the plaintiff by false and fraudulent representations to accept certain worthless notes, for which a valid bond and mortgage were surrendered and satisfied. The complaint also charged that defendant S. with defendants Doe and Roe combined and confederated together in the perpetration .of .the frauds</p> <p>Held, that an order striking out the allegation of conspiracy and the names of Doe and Roe from the action, being productive of neither harm nor embarrassment to defendant, the law will not permit him to effectually complain of it.</p>

<p>Practice — Payment into court — Specific performance—When issue raised by the pleadings, must be disposed of before specific performance will be decreed.</p> <p>Where an issue is raised by the pleadings, in an action for damages, as to the proper construction of an agreement, specific performance cannot be decreed, without disposing of this issue, on payment by defendant of money/into court to secure plaintiff from the damages.</p>

<p> Judgment-debtor—Gode of Civil Procedure, .see. 2436—What is necessary to be shown to entitle a party to an examination of a judgment-debtor in aid of execution under this section. </p> <p>An affidavit to obtain an order for the examination of a judgment-debtor in aid of execution, which states as a ground for such examination “ that as deponent is informed and believes the said defendant has property which he unjustly refuses to apply towards the satisfaction of the judgment,” is insufficient to authorize the order.</p> <p>The affiant should give the name of his informant with his means of knowledge, and shall describe the property and also allege a demand.</p>

<p>Practice as to removal of causes from, a state court—When, within the legal discretion of the federal court to remand— When party not entitled to file in the state court a second petition for removal.</p> <p>Where, upon the removal of a cause from a state court, the copy of the record is not filed within the time fixed by statute, it is within the legal discretion of the federal court to remand the cause, and the order remanding it for that reason should not be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised.</p> <p>If, upon the first removal, the federal court declines to proceed and remands the cause because of the failure to file the copy of the record within due time, the same party is not entitled, under existing laws, to file in the state court a second petition for removal upon the same ground.</p>

<p>Cohoes {city of) — Fines imposed and collected for offenses under section 6, chapter 12, Laws of 1874 — Who should receive.</p> <p>The fines imposed and collected for offenses under section 6 of chapter 12, Laws of 1874, should be received by the Society for the Prevention of Cruelty to Animals.</p> <p>But an action cannot be sustained against the recorder of the city of Cohoes, who has in good faith paid over the money so received by him for such fines to the chamberlain of such city before any demand was made therefor by the plaintiff.</p>

<p>Pbepabatoby to settling the decree in this matter applications were made for allowance under the decision, which awarded costs to all parties out of the fund. Two counsel represented the executor on the trial, each of whom presents an affidavit stating that twenty-seven days were spent in the matter. Each presents a bill of costs for seventy dollars, allowable in a case of contest, and for $270 as a per diem allowance. The items of disbursement, amounting to sixty-six dollars, are stated and verified in a separate paper.</p> <p>The contestants’ counsel presents an affidavit showing seventeen days occupied in the matter, of which six were devoted to the trial upon the merits and two days to the summing up of counsel. The disbursements claimed by the contestants, amounting to about twenty dollars, are likewise stated in a separate paper. Ho bill of costs as such was presented by either party for taxation, and nothing is said by either about stenographer’s fees.</p>

<p>Office and officer—Action against the usurper of an office—Damages how recovered — Final judgment in action for usurping office—When and Turn fine to he imposed— Code of Civil Procedure, sections 1953, 1956.</p> <p>Under sectioml953 of the Code of Civil Procedure, by proceedings in the action isubsequentito final judgment upon the right and in favor of the person alleged- to be entitled to the office, the person thus found entitled to the office.-may recover in the same action against the defendant the damages. which; he has., sustained, in consequence of the defendant’s usurpation, intrusión (into, unlawful holding, or exercise of the office.-</p> <p>Upon- such .proceeding in .the-.-action, thought subsequent to the- verdict and'judgment upon ;the-title to the office, the defendant is entitled to a .hearing and trial.</p> <p>Section .1956 in (terms authorizes the court to impose in an action of this character, a fine, but to justify the imposition, the court should have before it evidence showing that the defendant has been guilty of some act in taking or holding the office from which he has been evicted, which was criminal, or, at least, grossly improper.</p> <p>It was assumed in the enactment of section 1956 that the evidence given upon the trial of the action would place the court in possession of all the facts upon which it would act, and if the proof given upon the trial shows nothing to justify the imposition of a fine, there is no procedure given to supply the omission.</p>

<p>Jurisdiction of district courts—-No jurisdiction in actions to recover penalties fixed by the dock department — Code of Givit Procedure, section 8215.</p> <p>The district courts have no jurisdiction in actions to recover penalties fixed by the dock department for neglect to remove merchandise from a dock or pier.</p>

<p>Examination before trial—Privilege of witness—When privilege to be urged—■ Mere possession of stolen goods ■not necessarily inconsistent with innocence.</p> <p>A refusal to answer a question on the ground of the tendency thereof to convict of a crime is a personal privilege of the witness, and to be urged when the question is put.</p> <p>Unless it appear that the testimony sought by an examination before trial relates exclusively to facts which, if proven, would show that the witness was guilty of a crime, the order therefor will not be set aside.</p> <p>The mere possession of goods which have been stolen, not being necessarily inconsistent with innocence of the crime of “ receiving stolen goods,” a witness should be left to urge his privilege, if it exist, on the examination itself.</p>

<p>QHoud upon title— Action to remove — Sufficiency of complaint—Demurrer.</p> <p>When property has been sold for the non-payment of an assessment and a certificate given, which, if followed by deed, will confer a prima facie title, the owner can maintain an action to set aside the sale and enjoin the deed for the illegality of the assessment, because in such a case there is a cloud upon his title, which evidence alone will remove.</p> <p>The deed when given will be conclusive evidence of the regularity of the sale, and presumptive evidence that all previous proceedings were regular.</p> <p>This action affects the title to real estate of the subject-matter of which this court has jurisdiction; this court can by action remove a cloud upon title, when extrinsic evidence must be resorted to, and it follows that the statute, which gives to the comptroller power to cancel such sales, and which the complaint expressly avers he does not intend to exercise, but that, on the contrary, “lie intends to execute such deed,,’’ cannot possibly deprive this court of its well established jurisdiction.</p> <p>A complaint which seeks to remove a cloud upon title to real estate, which not only avers the giving of a certificate of sale by the comptroller, but also contains the express averment that the comptroller intends to execute such deed is good on demurrer.</p>

<p>Appeal from judgment entered on verdict.</p>

<p>Appeal from an order denying a motion to vacate an attachment.</p>

<p>Summary pivceedings—When execution of the warrant for dispossession of a tenant may he stayed— Code of Civil Procedure, sections 2262,2263,2265.</p> <p>The execution of the warrant in summary proceedings for dispossession of a tenant Will not be stayed when the plaintiff has a remedy at law.</p> <p>The remedy by injunction is confined to cases and conditions in which it might he granted to stay the execution of a judgment in an action of ejectment.</p>

<p>Motion for relaxation of respondent’s costs on appeal to the court of appeals, on the ground that the item of sixty dollars for argument should not have- been allowed, inasmuch as the case was submitted to the court by consent without oral argument.</p>

<p>Appeal from an order granting a new trial.</p>

<p>Appeal from an order denying motion to vacate an attachment made by a subsequent attaching creditor.</p>

<p> Will—Construction of—Legacy where legatee dies before the testator, in whom, rests. </p> <p>The testator gave a portion of his estate to his son absolutely. The son. died before his father, leaving a widow and children. He left creditors, but no property, except that to be derived from his father’s estate:</p> <p>Meld, that under the statute, which enacts that the legacy, in case of the death of the legatee before the testator, shall vest in the surviving child or descendant of the legatee, the devised estate, on the death of the testator, vested absolutely in the children of the legatee, and that his widow and creditors have no interest in it.</p>

Appeal by Oliver S. Carter and others, dening a motion to vacate and set aside an order requiring them to attend and submit to an examination, and also directing it to proceed.

<p>Motion for leave to discontinue without costs.</p>

Motion under section 1268 of the Code to cancel and discharge of record judgments in favor of plaintiff, and against defendant, recovered in' this court — one on May 28, 1875, for $1,591.36, and another for $436.04, on March 25,1876 — by reason of defendant’s discharge in bankruptcy on October 15, 1880.

<p>fflmmination before trial — When order property granted,.</p> <p>In an action by a customer against his stockbrokers to recover damages alleged to have been sustained by the wrongful sale of stocks, the defense was that the sales were properly consummated upon due notice to plaintiff, by whom they were ratified. An order for the examination of plaintiff before trial was granted on affidavits that during a part at least of the period covering the transactions the plaintiff was not in the city of New York, and most of the notices were sent by telegram, and that it was desired and expected to prove that plaintiff did receive some or all of the notices so sent to him:</p> <p>Meld, that the order was improperly va'cated on the ground that it was sought only to find out what the plaintiff would swear to, and that the examination should be allowed, notwithstanding the plaintiff alleged in his complaint that defendants never demanded margins or collateral securities.</p>