Volume 66 — Howard's Practice Reports

<p>Motion to vacate a judgment.</p>

<p>Bankruptcy — Effect of plaintiff being adjudged a bankrupt after action commenced— In whose name action to be prosecuted.</p> <p>Where, after action was commenced, the plaintiff was adjudicated a bankrupt and an assignee of his property and estate was appointed:</p> <p>Held, that the bankrupt had no legal right to maintain the action after the appointment of an assignee; and upon these facts being established the complaint ahould be dismissed.</p> <p>The assignee is not absolutely bound to prosecute the action, but if he elects to proceed it must be in his own name and not in that of the bankrupt.</p>

<p>Kew trial — Rule as to granting, on the ground of surprise or newly discovered evidence. ,</p> <p>Hew trials are only granted where surprise arises in relation to the facts proved, and not where surprises arise in relation to the rulings ofithe judge upon points of law.</p> <p>Y here, upon a trial, the plaintiffs had stated they would go to the jury upon the evidence as it then stood, and the court adjourned till the next day for counsel to address the jury, another judge at special term should not grant a new trial for the refusal of the trial judge to open the case the day following and take further evidence, when the witness on the other side upon the same subject has been dismissed the court and had left the state.</p> <p>The granting of new trials upon the ground of newly discovered evidence is generally, if not universally, confined to cases where the newly discovered evidence has an application to the issues that have been tried, rather than to cases where the new evidence is alone applicable to an issue that is to be framed hereafter by amendment, and which the court may or may not allow.</p> <p>The rule is that courts will not grant a new trial unless the newly discovered evidence would probably change the result of the former trial.</p>

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

Before Learned, Bookes and Boardman, JJ. Appeal from an order discharging grand jury and setting indictment aside. The facts are fully stated in opinion.

Before Smith, P. J., Hardin and Barker, JJ. Appeal from an order of the the Monroe county court deciding that the action he referred for trial.

Plaintiffs, upon commencing this action, obtained a war rant of attachment, under which the sheriff of New York county attached a large stock of gas fixtures, machinery, &c. After long litigation, the attachment was vacated, the same order taxing the sheriff’s fees and directing that the same be paid by plaintiffs. The'sheriff’s fees not being paid by either party, the sheriff refused to deliver the attached property to ■ the defendant or its assignee.

The plaintiff sues for $15,000 damages sustained in falling some sixty feet from a lofty scaffold. The church furnished' the original scaffold to all the several contractors. Plaintiff was iii the employ of one Mulholland, a sub-contractor, who frescoed the interior of the dome of the church. Rogers had the contract of painting and made a sub-contract for frescoing to Mulholland. Rogers loaned two. men to Mulholland to move the planks as required.

In May, 1881, Hall, Micoll dc Cranberry commenced an action in the supreme court against the United States Reflector Company, at the same time obtaining an attachment under which the plaintiff, then sheriff of the city and county of New York, attached a large stock of gas fixtures, machinery, The reflector company demurred to the complaint upon the grounds that the complaint did not state facts sufficient to constitute a cause of action, that there was a misjoinder of…

<p>Motion to confirm report of commissioners in proceedings to acquire title to lands needed for railroad purposes.</p>

On demurrer on behalf of the American Heating and Power Company.

This is a motion to vacate an order for the examination of Luther W. Frost, as a witness, and to obtain his deposition to be used upon a motion under section 885, Code of Civil Procedure.

<p>Wilt — Construction of.</p> <p>Where a testator devised to his wife his homestead, “ with the appurtenances, containing about fourteen and one-half acres of upland, exclusive of the water grant,” the words quoted is a general description of the quantity of the upland, not taking into account the extent of the water grant, which was appurtenant to it, and the latter was not intended to be excluded.</p> <p>Where, at the time of the execution of the will, the premises devised to the wife were unincumbered, and the testator. afterward executed a mortgage creating a lien upon the property, the widow must take the lands subject to the mortgage.</p> <p>Where the testator made a gift to his wife of $50,000, in such securities left by him as she might select, if the securities out of which the legatee may select are inadequate, the residue must be made up by the general assets of the estate, and the bequest is entitled to draw interest from the death of the testator.</p> <p>Where a gift is made of an equal share of a certain sum to each of several beneficiaries, “ or to their respective heirs,” and one of the beneficiaries ■ dies in the testator’s lifetime, leaving children, the share of such deceased person does not lapse, but goes to his children.</p> <p>Where a devise of the residue of the estate is made to the widow for life in one clause, and in the following clause such residue is directed to be divided into five equal shares, and given a share each to five beneficiaries named, “ or to their respective heirs,” in the event that either legatee died in the lifetime of the testator, his or her heirs take the share of the person so dying.</p> <p>A lapsed legacy, not being in terms excluded therefrom, goes into the residuary, the income of which goes to the widow for life.</p> <p>The executors being, in addition to a power of sale of the testator’s real estate, invested with authority to lease and to mortgage it, and to invest and reinvest the estate in such securities as they may deem proper ; they are also trustees, and as such are invested by implication with the legal title during the life of the widow, and the provisions stated constitute an equitable conversion of the realty into personalty, with the exception of the specific devise to the wife.</p> <p>Though the legacies are made a charge upon the real estate, such charge does not affect the homestead devised to the wife ; and the power and authority to sell is paramount to the charge of the legacies, and the lien, in favor of the legatees will attach to the proceeds of the sale.</p>

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

<p>Attorney’s lien for costs — Right of attorney for railroad company to costs upon a judgment, although the company became insolvent pending the action, the costs having been paid to receiver after notice of attorney’s lien—Pan'ty paying such costs to receiver after notice not protected from execution.</p> <p>Where the attorney of a railroad company had a lien for his costs upon a judgment for the company, and the company, pending the action, became insolvent, the company’s receiver has no title, legal or equitable, to such costs; and if the other party to the action, after notice of the attorney’s lien, pay the judgment to the receiver, he is not thereby protected from execution issued on such judgment.</p>

<p>Motion for a mandamus to compel the sheriff of Ulster county to allow the relator a private interview with his counsel.</p>

Before Learned, P. J., Boardman and Bookes, JJ. An appeal from the judgment of the Ulster sessions, sen. tencing the appellant to imprisonment at hard labor in the Albany penitentiary for the term of one year upon conviction of petit larceny by verdict of a jury. The defendant was indicted at the Ulster sessions in June, 1883, for grand larceny in the first degree. He was tried at the same term and convicted of petit larceny.

<p>Motion to vacate an injunction restraining the enforcement of a judgment in an action for a perpetual injunction.</p>

<p>Railroads —Damages to property must be compensated—When elevated railroad structures inconsistent with, the free use of the streets — When owner of premises entitled to injunction to restrain railroad company from continuing the use of the street without compensation— When entitled to damages for such use.</p> <p>The plaintiff, who is owner of premises at the corner of Greenwich and Rector streets, in the city of New York, and the owner of an easement in Greenwich street, that it shall be held by the city as a public street forever for the free and common use of all persons, and who also owns the fee of one-half of Rector street, adjoining his premises, is entitled, no matter when he became owner of the premises, to judgment restraining the defendants from continuing the use without compensation, of his property, by operating an elevated railroad upon the streets in front thereof, if the railroad structure, as erected and used, is inconsistent with the free use of the streets under the conditions, of the grant to the city.</p> <p>The elevated railroad structure of defendants in Greenwich street is to some extent inconsistent with such use of the street, as it prevents free access to plaintiff’s lot, obscures the light and to some extent the free circulation of air, and plaintiff is entitled to damages, for the period of his ownership, for the use of his property thus appropriated by defendants.</p>

<p>Contract—Sight of a third pandy to sue upon a contract to which he is not privy — Bailment— Sale — Exchange — Partnership..</p> <p>If the complaint sets forth a cause of action either in tort or assumpsit, it is sufficient, and the plaintiff will recover such a judgment as the facts warrant irrespective of the form of the action.</p> <p>Where the complaint alleged that some time prior to April 15, 1883, the plaintiff delivered to K. & Co. certain jeweler’s sweepings to be refined, and agreed to pay the firm a certain price for refining the same. By the terms of the agreement between them, the sweepings were to be refined, and the product thereof delivered to or accounted for, and the value thereof, less the agreed price for refining the same, paid to the plaintiff within twenty days from the delivery thereof. It further alleges that on April 13, 1883, K. & Co. transferred and delivered all the property at their refinery works, including the said sweepings, to defendants, upon the agreement that defendants should fully pay and discharge all • the debts, obligations and liabilities of K. & Co. It then avers that twenty days have elapsed since the delivery of the sweepings to K. & Co., and the plaintiffs have demanded of them and of the defendants the return of the sweepings, or, in default thereof, the delivery of the product or value, upon payment of the agreed price for refining the same; that defendants and K. & Co. have neglected and refused to comply with the demand. On demurrer to the complaint:</p> <p>Held, first, that the delivery of the sweepings to K. & Co. was not a bailment because they had a right to return money in its place and trover is not an appropriate remedy.</p> <p>Second. That plaintiff cannot maintain assumpsit upon the agreement set forth, because there is no recognition in it of any liability to him and nothing to indicate that any claim of his was present to the contemplation of the parties.</p>

<p> Office and officers—Assessment—When trustees of a village are officers de facto and competent to lay an assessment —E lection —Irregularities which will not he rectified in the courts—Defects which will not he inquired, into collaterally. </p> <p>The fact that the president and trustees of the village of Irvington failed to take the prescribed oath of office before entering upon the performance of their duties as such trustees and president, does not affect the validity of their action in organizing themselves into a board of water commissioners under the act of 1875, chapter 181, to furnish water to said village; they having taken possession of their offices and the public having acquiesced in their claim and tenure, they are officers defacto and competent to lay an assessment.</p> <p>Irregularities in an electon which would not change the result will not be rectified in the courts. If an election is irregular, certiorari is the proper remedy.</p> <p>The defects that the assessment-roll was made by officers who had not qualified, and contained names not properly on it, and omitted others which ought to have been on, cannot be inquired into collaterally.</p>

<p>Appearance—Answer—Practice — Oode of Givil Proceedure, sections 431, 423—Effect of an order extending time to answer.</p> <p>An order extending time to answer is equivalent to a notice of appearance.</p>

<p>Contempt — Commitment for — Discharge from imprisonment on habeas corpus^- Prisoner not privileged as a party in attendance upon such proceeding so as to relieve him from arrest under a further commitment for same contempt—Practice— Code of Civil Procedure, section 3043.</p> <p>A defendant who while seeking release upon habeas coipus from imprisonment under a commitment for violation of an injunction on the ground of insufficiency of the commitment itself, is not entitled to he released from a further commitment, immediately succeeding his discharge, for the reason that he was privileged as a party in attendance upon the other proceeding.</p>

<p>Corporations — Responsibility of trustees — Their liability to creditors for filing a false return—Sufficiency of complaint in action against trustee.</p> <p>Where a creditor of a corporation seeks to charge a trustee personally with a debt, upon the ground that in pursuance of the eighteenth section of chapter 611 of the Laws of 1875 he signed and caused to be filed an annual report which, as the complaint alleged, was false in a material representation — viz., that the whole of the capital stock of $700,000 had been paid in full, when in fact it was issued in exchange for an interest in real property not exceeding $200,000 — it is not necessary to aver that the transaction was a fraudulent cover for a fictitious payment of the stock, or that the trustees had no actual belief in the value of the land, or no reasonable ground or basis for such belief, and that the-issue of the stock for the land was done with the fraudulent purpose of evading the statute, when it is alleged the defendant knew the report to be false when he signed it.</p>

<p>Motion by defendant to dissolve an injunction.</p>

<p> Title—Inchoate dower right—When not satisfied or extinguished or barred. </p> <p>Where a wife does not join with her husband in a mortgage upon realty and is not made party to the foreclosure of such mortgage, she has an inchoate right of dower in said premises after sale upon the foreclosure judgment, although, after the filing of the lis pendens in the foreclosure action and before the entry of the judgment, a deed from the husband to A. of said premises, purporting to have been made three years previously and taken subject to the mortgage, was recorded in the same office, and that thereafter, and before the entry of judgment, a deed of said premises from A. to the wife, subject to said mortgage, was also recorded in the same office; and the purchaser at-the foreclosure sale cannot be required to complete his purchase, the title not being good.</p>

Motion by defendant for judgment- on the report of a .referee, to hear and determine a contested divorce case, under section 1229 of the Code of Civil Procedure. The motion was opposed only on the ground that the referee’s report had been filed more than sixty days after the submission of the cause and after plaintiff had given notice of his election to • end the reference.

<p>Corporation — Liability of directors — Sufficiency of complaint in action by creditors of a corporation against directors, to hold them personally liable because the debts of the corporation exceed the amount of its capital stock— Laws of 1875, chapter 611, section 22.</p> <p>In an action by the creditors of a corporation against the directors thereof to hold them personally liable, because the debts of the corporation created by defendants exceed the amount of its capital stock, it is enough to state the amount of such capital and to give the amounts of the claims which are outstanding, and it is not necessary that the debts should be due. If an apparent claim is not real, the fact should be set up by answer.</p>

This action was brought t'o recover $13,214.87, á balance claimed for services rendered to the defendant, In the Matter of the Estate of John Hancock, and suits growing therefrom. The services commenced in 1874 and ended in the spring of 1883.

<p>In the year 1879, Homer Morgan, a well known real estate broker, had the premises Hos. 34 Broadway and 69 Hew street for sale for James M. Motley, and subsequently for a Mr. Fielder. In the early part of 1883, Morgan had an offer for the property, and through his clerk Jabez B. Hyde, opened and conducted negotiations with the defendant (who was discovered to be the party in interest) for the sale of the premises.</p> <p>As a result of these negotiations Du Bois Smith (the agent and attorney of the plaintiff) and the defendant had several interviews, and a final offer of $127,500 net was agreed upon as the price to be paid for the property. This proposition, as explained by the evidence, meant that the purchaser was to pay the broker’s commissions upon the sale. Hyde gave Smith a diagram upon which the premises Ho. 34 Broadway appeared as thirty-two feet one inch in width. The defendant never authorized Hyde to issue it, and had no knowledge of its existence until after the execution of the contract of sale. This contract, though dated April 20, 1883, at Smith’s request, was executed on the following day for the sale of the premises, by street numbers, 34 Broadway and 69 Hew street.</p> <p>On April 20, 1883, the plaintiff had contracted to sell the premises to George H. Morris for $138,000, and paid $1,380 for the broker’s commissions on such sale.</p> <p>On the day fixed for closing the sale between the parties to this action, the defendant tendered a deed of the premises in question, by which it appeared that the width of the Broadway property was about four feet less than the dimensions shown upon the diagram. The plaintiff declined to accept the deed unless a proportionate deduction was made for such deficiency. This offer was not accepted, and plaintiff having amended his complaint upon the trial, now seeks to recover the amounts paid by him on account of his purchase, viz., $2,500 paid on execution of the contract, $1,275 commissions paid to Morgan, and $1,380 commissions paid to the broker upon the sale to Morris; in all, $5,155. •</p>

Motion by plaintiff to strike out the answer of defendants as to the three last named defendants, and as to them to treat it as a nullity for the reason that the said last three defendants have not united in the verification thereto, and in that only one of the defendants, viz., William E. Bates, made the verification, and there is no reason assigned why the other defendants ,do not unite in the verification.

Powers, deceased. The deceased, who was domiciled in the state of Georgia, died' 12tli June, 1855, leaving a will which was admitted to probate in the county and state of New York, and his entire estate, consisting exclusively of personal property, has remained there in the custody of the acting executor.

<p>Appeal from the clerk’s taxation of costs.</p>

Before Learned, P.J., Boardman and Bockes, JJ. Appeal from judgment of Albany county court affirming a judgment of the “justices’ court of the city of Albany.” The summons and complaint in the action were served upon the defendant in the city of Cohoes. The defendant appeared and objected to the jurisdiction, on the ground that the summons was not served in or “within the citry of Albany.” The court overruled the objection and gave judgment for the plaintiff.

<p>Appeal from an order directing a discontinuance of the action.</p>

<p>Answer—Reply— Code of Oivil Procedure, sections 500, 514— 'What reply to contain— Counter-claim,</p> <p>A plaintiff cannot, in his reply, plead an independent counter-claim to a counter-claim set up hy the defendant.</p>

<p>Bill of pa/rticvXars—When motion for, will he denied—Oodeof Oml Procedure, sections 531, 802, 803.</p> <p>In a suit to recover the proceeds of the sale of plaintiffs’ goods by defendants, as agents, less their commissions, under a contract, the defendants set up a counter- claim for commissions upon other goods, under said agreement. The plaintiffs replied that the other goods sold were under contracts excepted from the agreement:</p> <p>Held, that defendants are not entitled to a bill of particulars of such contracts, and of the goods furnished under them.</p> <p>A party can only be required to state the particulars of his own cause of action or defense, and not the cause of action or defense of the adverse party.</p>

The action is brought by the purchaser against a seller, ostensibly to enforce the specific performance of a contract for the sale of real estate. The plaintiff rejected the title. He asks the court to determine that he was right in doing so, and to compel the defendant to make the title good, and then to convey to him the property at the price of $9,000 specified in the contract.

<p>Arrest— When order of, will not be vacated, on conflicting affidavits.</p> <p>Where the cause of action is identical with the ground of arrest the court will not vacate the order of arrest on conflicting affidavits.</p> <p>Where the facts disclosed hy the affidavits on both sides do not make a clear preponderance of evidence to show that the plaintiff cannot succeed in his action an order of arrest will not he vacated.</p>

<p>New York (city of) — Negligence — City not responsible for injuries sustained by a person by reason of a defeci in the highway in tire ‘ ‘ annexed district” — Laws of 1873, chapter 013 — Duty of keeping in repair roads, &c., in annexed district imposed upon department of parks.</p> <p>The mayor, aldermen and commonalty of the city of New York should not be held liable for injuries sustained by a person by reason of a defect in the highway in the “ annexed district,” because they were not guilty of negligence, the duty of keeping in repair the roads, streets and avenues in the annexed district not having been imposed upon them, but exclusively upon the department of parks, without any control by the said corporation.</p> <p>Van Brunt, J., dissents upon the authority of the case of Twogood agt. The Mayor.</p>

<p> Bills of particulars—Power of court to order—When and how will be exercised. </p> <p>The power of the supreme court to order bills of particulars extends to all descriptions of actions, and it may be exercised as well in behalf of the plaintiff as of the defendant.</p> <p>In an action brought by plaintiff to set aside a general assignment made to one of the defendants for the benefit of creditors, the complaint alleged that the assignment was made, executed and delivered with intent to hinder, delay and defraud the creditors of the assignor:</p> <p>Held, that defendants, who were by an order of the court allowed to intervene and be made parties defendant in this action, were entitled to an order that plaintiffs deliver to them a statement in writing of the times and places at which the plaintiffs expect or intend to prove any acts or things which serve to show that the assignment was done with fraudulent intent, and to what persons and at what times and places they will claim of offer to prove that the assignor made secret or other assignments of his estate.</p>

Before Davis, P. J., Brady and Daniels, JJ. . Appeal from order refusing to pass upon requests of the plaintiff to find certain facts and conclusions of law.

<p>Vagrant—Record of conviction — Where should be filed— Code of Criminal Procedure, sections 893-963.</p> <p>Section 893 of the Code of Criminal Procedure has been repealed or abrogated by the provisions of the consolidation act (Laws of 1883, chap. 410), and the filing of the record of conviction of a prisoner on a charge of being a vagrant, by a police justice in the office of the clerk of the general sessions of the peace is regular.</p>

A habeas corpus was issued in this case to the sheriff of the city and county of New York and the warden of the city prisons, directing the production of the relator, &c. The sheriff made return to the writ, that he arrested and took into his custody the said relator under and by virtue of a certain transcript of the minutes of the court of special sessions of the peace, a copy of which was annexed to and made a part of the return.

<p>Children—Not allowed, to leg, collect refuse, <&c., from marlcets— Such occupation, a misdemeanor—How punishable—Power of magistrate to determine age of child.</p> <p>A child under the age of fourteen years who is found engaged in the occupation of collecting refuse from any market in a public street in the city of New York, is guilty of an offense punishable under the acts of 1877, and the act of 1881 amending the same, and may be committed by such magistrate to certain incorporated institutions, among which is the New York Catholic Protectory.</p> <p>A police justice has the power and jurisdiction to so commit.</p> <p>.Such magistrate has the power, under the laws of 1883, to determine the age of the child by personal inspection. He is not obliged to direct an examination by a physician for that purpose.</p> <p>The court has no power on habeas corpus to retry the questions of fact on which the findings of a court of original jurisdiction must be presumed to have been predicated.</p>

The writ commanded the superintendent of the house of reception of the New York Juvenile Asylum of the city of New York, to have the body of Alexander Forsyth before the supreme court of the state of New York, together with the time and cause of his imprisonment and detention.

This is a suit for partition of property, Nos. 41 Broad street and 473 Greenwich street, in the city of New York. The property is held undivided under the will of William Quick, made before the Revised Statutes. lie died in 1824.

Trial by the court without a jury. The plaintiff, as landlord, let to the defendant, as tenant, the premises known as Ho. 27 West Thirty-first street, for one year from May 1, 1883, at the yearly rent of $3,300, payable monthly in advance.

<p> Taxes and assessments—When non-resident firm, liable to a personal tax. </p> <p>A foreign firm, doing business in Liverpool, England, and having a resident member in Mew York carrying on the business tributary to the business in Liverpool, such business being buying and receiving property, the products of other states, for sale in England and Europe, and having money here '(though temporarily) for the purpose of use and investment in said business, is liable, under the act of 1855, to taxation on the sums invested in their business in this city {Laws of 1855, chap. 87).</p>

<p>Executor—In action against, when and how costs to be awarded—When the refusal of an executor to pay a claim is not unreasonable— Code of OM Procedure, section 1836.</p> <p>In an action brought and a recovery had against an executor to justify the imposition of costs against such executor it must appear that the claim was presented to the executor after he had qualified and entered upon the discharge of his duties, and that after such presentation and before suit he refused to refer it as prescribed by law, or that he unreasonably resisted or neglected its payment.</p> <p>A motion for costs will be denied where there is no legal proof of the presentation of the claim sued on, after the granting of letters of administration to the executor, and of its rejection by him.</p> <p>It is not an “unreasonable resistance of a claim” which was barred by the statute of limitations, unless there had been a payment thereon by the deceased, whose estate the executor represented and of which he had no personal knowledge, to require the proof thereof to be submitted to a court in an action in which he voluntarily appeared in order that no charge of want of fidelity to the estate could be made.</p>

<p> Practice in assignment cases—Commissions, .costs and allowances to be made to an assignee who has not violated any duty, but is removed because his domestic relations ewe such as to make it ‘probable that his feelings might conflict with his duty. </p> <p>Where an assignee has violated no duty, but was removed because his domestic relations were such as to make it probable that his feelings might conflict with his duty, his commissions will be allowed.</p> <p>The assignee’s claim for rent, clerk hire and gas bills paid whilst the stock was selling at retail was properly disallowed. But it was proper to allow such expenses as were incurred in preparing the goods for sale at auction.</p> <p>It is the duty of the assignee to defend the trust, and to preserve the assigned estate, and it is proper to allow him the amount payable to his counsel for services in a replevin suit.</p> <p>Where difficult questions arise an assignee may lawfully employ counsel to advise him in relation to the administration of the estate, and charge the expenses to the trust fund.</p> <p>If a trustee or assignee has good ground for retiring, the costs of the suit by which he seeks and obtains a discharge from his trusteeship will be paid out of the trust fund.</p> <p>Where, as in this case, an assignee without any fault on his part, is called upon to vacate his office, he stands in the position of one who voluntarily and for good cause seeks to be relieved from his trusteesnip. With respect to the expenses of his accounting, he should be treated like a trustee, who, for good reason, and of his own accord, asks leave ■ to lay down his office.</p> <p>The assignee should not be allowed a payment made of a gas bill which was contracted for by the assignors and was a claim against the assigned estate. Not being a preferred claim, only a pro rata portion should have been paid. He should on the final accounting of the substituted assignee be entitled to reclaim the amount which, on a pro rata payment to creditors of the non-preferred class would b<j coming to the gas company.</p> <p>The costs to be allowed on an accounting of an assignee are such costs as would be awarded on the trial of an issue of fact in a civil action; that is to say, for proceedings after notice and before trial, and the usual trial fee.</p>

On December 10, 1883, two orders to show cause — one to file security for costs; the other to furnish a further bill of particulars — were granted to the defendant by one of the justices of this court in the second department, both returnable at a special term to be held at Utica, December 15.

Henry Lee brought this action against Mary Lee “ to annul and declare void their marriage,” upon the alleged ground of ‘‘ fraud, force and duress ” on the part of the wife. The answer admits the marriage, but denies the alleged “ fraud, force and duress.”

<p>Attachmsnt—In what actions a warrant of, may he granted—What must he shown to procure the wa/rrant—Code of Oiml Procedure, sections 635-636 — When attachment should he set aside because of insufficiency of the affidavit upon which it was granted.</p> <p>Upon the application of the plaintiff, an attachment was issued against the defendants upon an affidavit which stated that " the defendants are justly and truly indebted unto this plaintiff in the sum of $20,000 lawful money of the United States, over and above all counter-claims known to this plaintiff, for damages, for the breach of a contract, express or implied, other than a contract to marry, founded upon the following facts, to wit': For work, labor and services done and performed, and caused to be done and performed, by the plaintiff to and for said defendants, and at the special instance and request of the defendants, in consideration that the defendants had agreed and undertaken to pay to plaintiff therefor whatever said work, labor and services were reasonably worth, and which work, labor and services consisted in the examination, location and reporting on mines and mining property located in Arizona, and in which the defendants claim to have an interest, and in obtaining for the defendants lands, vesting in them a lawful title and interest in certain mines and mining property in Arizona, ana in work for them in his (plaintiff) profession as a mining engineer ; that said work, labor and services were reasonably worth the sum of $20,000; that no part thereof has been paid, but that the sum of $20,000 is justly due and owing from the defendants to the plaintiff over and above all counter-claims known to him. Said work, labor and services were performed during a period from September 1, 1882, in Arizona, to the time of the commencement of .this action.” The affidavit then sets out the defendant Sisson resides in California and the defendant Safely in Indiana.</p> <p>-Reid, that the affidavit fails to show that there has been a breach of the alleged contract between the plaintiff and the defendants, and the attachment should be vacated.-</p>

Motion to vacate an attachment against tüe property of the defendant as a non-resident debtor.

<p>Attachment against a non-resident—Sufficiency of affidavit — When action prematurely commenced, — Proof of notification that services were completed, and of demand and refusal to pay, necessary.</p> <p>In an affidavit for an attachment in a suit to recover for work, labor and services, upon the ground, of the non-reside nee of defendant, it appeared that on the very day the services were completed the action was begun. .Held, that the action was prematurely commenced as the defendants were entitled to the whole of the day in which the services were completed to pay for their performance. There should also have been proof of notification to defendant that the services were completed, and of demand made and refusal to paj {Affirming S. 0., ante, 220.)</p>

Before Brady and Daniels, JJ. Appeal from an order vacating an attachment against the property of the defendant as a non-resident debtor.

Before Davis, P.J., Brady and Daniels, JJ. Appeal from an order of the special term denying motion to compel purchaser to take title.

<p>Before Hyatt and Hall, JJ.</p>

<p>Certiorari to review an assessment.</p>

<p>Will — Construction of—When mt void under the statute against perpetuities.</p> <p>In 1862, three sisters, Margaret, Mary and Sarah, were the owners in equal proportions of a large amount of real and personal property called the joint Burr estate. Margaret died in September, 1862, leaving a will by which she devised, on the death of her surviving sister, all her lands to executors until the sale thereof in trust at such times as they might deem for the benefit of the estate. She gave to them the proceeds of her lands and personal estate, not otherwise specifically given, to pay legacies to various charities. Mary, who died in 1865, gave her real and personal estate to her executors after the death of her sister, and the • rents, issues and profits of the estate to be sold by them were to be applied to the payment of residuary legacies to charities. The legacies referred to in Margaret’s will are made payable within four years from the death of the survivor of the sisters. By a codicil to Mary’s will the legacies to charities are directed to be paid within two years from ■the death of her sister:</p> <p>Held, that these wills are not void under the statute against perpetuities, there being not in either of them any suspension of the absolute power of alienation of the real estate for more than two lives in being at the creation of the estate.</p>

<p>Action—Distinction between legal and equitable remedies are abolished— Code of Civil Procedure, section 3339 — Trust•—When and 7u>w created by will—Parties.</p> <p>Where C. died leaving an only daughter named Ella about eight years of age, leaving a last will and testament by which he gave all his property to this daughter, with the income and profits thereof; and by it he also desired his exeeutor, the defendant S., to take charge of his property, rent out the real estate, take care of his household furniture and other property until his daughter attained the age of twenty-one years, and requested his executor should provide his child with a suitable home and see to her education and pay for the same out of his said property, and to sell and convey his real estate at any time during the minority of his said daughter, and also sell his furniture at any time in his judgment it will be for the interest of his said child. The defendant G-. was appointed the general guardian of the child Ella and placed her at school with the plaintiff, and there is due to the plaintiff for board and tuition and supplies furnished to the child $434 68. In an action brought to procure the application of the money of the child to the payment of the plaintiff’s claim:</p> <p>Held, that the fund in the hands of the executor is held in trust for that purpose and its application can be enforced by the courts.</p> <p>Held, also, that it is immaterial what the action is called which is instituted to enforce this duty resting on the executor. There is now but one form of civil actions, the distinction between legal and equitable remedies being abolished, and if the case made by a party entitles him to any remedy it must be granted where an answer has been interposed even in disregard of the prayer for relief.</p> <p>Held, further, that it was proper to make the infant child and her general guardian as well as the executor parties to the action.</p>

<p>Summons — Service of, by publication—What proof of inability to serve the defendant in this state insufficient— Code of Civil Procedure, section 439.</p> <p>When the allegations in the papers on which an order for the service of a summons by publication was issued was as follows: The affidavit alleged “that as deponent is informed and believed that the defendants are not residents of this state, but reside in the city of Laredo, state of Texas, as deponent is informrd by defendants themselves m letters received from them at said place.” Also, “that deponent has caused a summons and complaint to be issued in this action against the said defendants to the sheriff of the city and county of New York, but that said defendants cannot be found, after due diligence, within this state, and that deponent is informed and believes that said defendants are now in the city of Laredo, state of Texas.” The complaint states that the defendants are, and at all times hereinafter mentioned, were copartners, doing business in the city of Laredo, state of Texas, under the firm name of Tomas Dwyer & Co.:</p> <p>Held, that this was not sufficient under section 439 of the Civil Code of Procedure to authorize the granting of this order.</p>

Before Davis, P. J., Brady and Daniels, JJ. Appeal from order requiring the defendant to appear before the court and submit to an examination-as a witness before the trial.

<p>New trial—When will be denied — Practice.</p> <p>Although where the defendant sets up the defense that the demand on which the action was founded "has been bought and sold or received for prosecution ” by an attorney and counselor, contrary to the statute (21?. 5., 71 et seq.), the court, and not the jury, are to pass upon the question. If determined against the plaintiff, he must be non-suited, and if in his favor the jury must be instructed accordingly; yet the plaintiff cannot invoke its aid if he neglects to avail himself of, or to perform, the requirements of this rule, or if he waives the right it confers.</p> <p>IVTiere the plaintiff did not request the court to direct the jury to find for him, he cannot complain because the defendant did not deem it to bo his duty to move for a nonsuit, and having conceded the affirmative to the defendant the plaintiff was the first to go to the jury, to whom he voluntarily submitted his case and they having found against him, and he must abide by their verdict.</p> <p>Where such a defense is made out and the question of interest is for the court and not for the jury, an absolute judgment in favor of the defendant, as distinguished from a judgment of nonsuit, is proper.</p>

<p>Corporations — Irustees — Contracts— Syndicate agreement—Bights of parties under—Parties — Practice.</p> <p>The plaintiff, with others, owners and inventors of appliances in telegraphy, in December, 1878, entered into a syndicate agreement, and defendants Angle and Craig, as trustees of the syndicate, issued to plaintiff a certificate for twenty shares of its stocks. The defendant Wallace was afterwards joined as trustee with Angle and Craig. The defendant Telegraph Company was organized soon after, and its 30,000 shares of stock distributed equally among three trustees, its corporators, one of whom was defendant Wallace. The syndicate inventions and patents were transferred by Angle, Craig and Wallace for 20,000 shares of the company’s stock to the three trustees of the defendant company, Read, Brown and Wallace, who at the same time transferred them to the company. After the company had gone into operation, a certificate for the 20,000 shares due the trustees of the syndicate was made out, but was never issued to them. In this action to assert plaintiff’s title in the trust property as member of the syndicate :</p> <p>Meld, that the corporation was chargeable, not only by the connection of Wallace with its organization, but by the fair inference to be drawn by the course of dealing with the several parties, with knowledge of the representative character of the persons with whom it was dealing ; that there has been a plain violation, through the instrumentality of the trustees, and by their misconduct or the misconduct of some of them, of the rights of the beneficiaries under these contracts, and that plaintiff is entitled to the relief sought. „</p> <p>The practice does not permit a defendant, even though he has concealed in his answer a counter-claim, to stand by and permit the plaintiff to proceed as though no counter-claim were pleaded, and thus attempt to take advantage of the omission to file a reply by moving to dismiss the plaintiff’s complaint.</p>

' Before Davis, P. J., Brady and Daniels, JJ. Appeal from an order vacating-an order for the examination of James R. Keene, one of the defendants, as a party before trial. . .

Motion to vacate an attachment. The affidavit upon which the attachment was issued, alleged, first, upon information and belief, a cause of action against the defendants .for a conspiracy to defraud ; and, second, positively that the defendants were non-residents. The motion to vacate the attachment was made upon the papers upon which it was granted.

<p>Undertaking on appeal—To be executed, by at least two sureties—Defective when signed by two sureties, one of which is plaintiff— Code of Procedure, sections 348, 335 — Code of Oivil Procedure, sections 1337, 1334.</p> <p>Where a person signs an undertaking given on appeal in an action as surety, with the express understanding that it was to be executed also by another surety, and the law requires two sureties to an undertaking that would operate as a stay, such surety is not liable on the undertaking if it be filed without a second surety being obtained.</p>

<p>Motion to vacate order for the examination of the defendant, sought for the purpose of framing the complaint.</p>

Before Barnard, P. J., Pratt and Dykman, JJ. The will of deceased was proved in March, 1880, before the ■ surrogate of Westchester county.

<p>Executors—Accounting by executor, &c., of deceased executor — Bepresentaiives of a deceased executor cannot initiate such proceedings — Code of Oml Procedure, section 2606.</p> <p>A proceeding may be brought in this court by or against the executor or administrator of decedent A., who was himself the executor or administrator of decedent B., for an accounting with respect to decedent A. ’s estate. The parties interested in the estate of decedent B. will be entitled upon such accounting to assert, in common with the other creditors of A., such claims as they may have against his estate on account of any liability he may have incurred by reason of his administration of B.’s estate.</p> <p>But there is no provision of law which authorizes the representatives of a deceased executor or administrator to initiate and conduct a proceeding for the accounting of their decedent in the estate whereof he was himself executor.</p>

<p>' Gertiorari—When motion to quash shall be disposed of upon the merits.</p> <p>Though some of the grounds upon a motion to quash a writ of certiorari may be well taken, the case should be disposed of upon the merits where quashing the writ would simply remit the parties to another proceed" ing, and would necessarily result in greater delay.</p>

<p> Affirmative of, the issue—Might to open and close—Bffect of immaterial denials. </p> <p>The plaintiffs sued to recover the amount of a promissory note made by the defendant to the order of McS. & Co. and delivered to the plaintiffs. The answer denied each and every allegation in the complaint contained except as thereinafter admitted. It then alleges, among other tilings, that the defendant “gave the plaintiffs a note for $2,054,” and “the note set forth in the complaint was .the Snal renewal of said note.” The answer then attacks the consideration of the note and pleads other facts in defense to it.</p> <p>Held, that the defendant should have been awarded the affirmative of the case and the right of opening and closing to the jury, and the denial was error for which the judgment should be reversed.</p>

<p>Before Davis, P. J., Beady and Daniels, JJ.</p> <p>. Appeal from order of special term in proceeding for habeas C0?]pus.</p>

<p>Before McAdah and Hehrbas, JJ.</p> <p>Appeal from order denying motion for new trial.</p>

<p>Appeal from an order of the special term denying defendant’s motion to dissolve a temporary injunction and continuing the same during the pendency of the action.</p>

Before Barnard, P. J., Dykman and Pratt, JJ. Appeal from a judgment entered on the decision of Mr. justice Pratt, rendered on a trial had by and before him, .without a jury, at the January circuit for 1883, held in and for the' county of Kings, dismissing the complaint on the merits, with costs, and an extra allowance of five per cent to the defendant on plaintiff’s claim.

<p>'Cos companies — Injunction— Company’s meter not to be regarded as conclusive as to the quantity of gas consumed and charged for—Bight of consumer to an injunction in the case of disputed charge.</p> <p>A gas company’s meter, even after being tested and inspected according to law, is not to be regarded as the absolute test of the quantity of gas consumed and charged for, hut may he contested by other reliable testimony.</p> <p>When a dispute arises between the company and a consumer, the latter is entitled to an injunction to prevent the cutting off of the supply of gas until the cause can be tried.</p>

This is a motion to continue a temporary injunction restraining interference with plaintiff’s business as a licensed liquor dealer.

In April, 1869, the plaintiff and defendant formed a partnership by an agreement under seal. Among other provisions was the following: “All losses happening to the said firm * * * and all expenses of the business shall be borne by the said parties in equal proportions.” The business. proved unprofitable and was wound up in December, 1869. The ■ plaintiff, on or before June, 1870, paid and expended moneys for said firm in its business.

<p>Application for a peremptory mandamus to compel the board of supervisors of Greene county to designate two papers to publish the Session Laws.</p>

Motion upon temporary writ granted by justice Dykman for writ of prohibition against Mann, acting as-a- justice of the peace, in suit against relator on the ground that Mann is over seventy years of age.

This action was brought by plaintiff, to whom the claim in suit had been assigned, to recover, of defendant the sum of $2,500 and interest. Defendant interposed as a defense and by way of set-off two notes, which with interest were of the aggregate value of $7,996. Upon the trial judgment was rendered for plaintiff upon all the issues involved, and for the full amount claimed by her with interest. The court granted an allowance of five per cent.

<p>Removal of cause from state to United States courts — Examination lief ore trial—Examination actually pending at'time of removal—Right to continue— Cods of Civil Proeedure, sections §70, 881, 883.</p> <p>Where an action was begun in the state court and an order thereafter obtained under sections 870, &c., Code off Civil Procedure requiring the defendant to appear and testify befare trial, and whilst the examination of the defendant was being had under such order, he removed the cause into the circuit court under “ the local prejudice act,:”</p> <p>Held, that although in actions at law begun in the federal courts depositions cannot be taken under the state practice, yet where, as in this case, such an examination was actually pending at the time of removal, the right to continue the same is' preserved under the act of congress of 1875, and on motion the defendant will be compelled to attend and testify under the order, although the plaintiff may not be entitled to read the deposition upon the trial.</p> <p>Instances in which such depositions may be used.</p>

The complaint alleges that the plaintiff was married to one Richard Field, in his lifetime. That said Field made a will and appointed the defendant his executor. That said Field died October 27, 1882, leaving said will, which has been duly proved, and letters testamentary issued thereon to the defendant. That an advertisement was duly published for creditors to present claims.

<p>Sureties on a/ppeal — Liability of defendant where the undertaking of surety has not beeiu^ormally approved — Code of Procedure, sections 334, 335, 336, 338, 340 — Code of Civil Procediere, section 1335.</p> <p>After two sureties', A, and B'., had. executed a joint and several undertaking under sections 334 and 338 of the old Code for a stay of proceedings on appeal, A. justified, but when subsequently B. was examined, the justice.before whom the examination took place filed a memorandum that he' was not qualified, and that "defendant in the action must produce another surety. Meantime, intermediate the filing of the memorandum and the entry of an order thereon, the defendant executed the undertakings upon which this action was brought, which were approved.</p> <p>Held, that by the memorandum- and order referred to, the justice approved of A. as one of the- sureties upon the undertakings; that it was not necessary that A. should join in the execution of the undertakings with defendant, and even if A. is not liable upon his undertaking for want of a formal indorsement of approval upon it, the defendant should not be relieved from liability on his undertakings, which stayed plaintiffs proceedings.</p>

<p>■ Liability of sheriff— Constitutional law — Code of Civil Procedure, sections 1421 to 1425—Provisions of these sections declared, unconstitutional and void.</p> <p>The provisions of sections 1421 to 1425 authorizing the substitution of sureties to the relief of the sheriff, sued for wrongful levy or attachment, are unconstitutional and void.</p>

<p>When the Chenango canal was constructed defendants’ grantor owned lot No. 5, and plaintiff’s grantor owned lot No. 2, which adjoined five on the west. The state previous to 1837 appropriated a strip of land from the east side of lot 5 and adjacent, to lot 2 (appropriating no part of lot 2) for the Chenango canal.</p> <p>The persons interested in the premises never exhibited to the appraisers a statement of their claims; no appraisement was made of the damages and benefits 'resulting to them on account of the appropriation, and nothing was paid by the state for the land taken.</p> <p>The canal was completed in 1837 and was operated until Hay 1, 1878, when it was abandoned pursuant to chapter 404, Laws 1877.</p> <p>In 1862 the plaintiff became, and has since remained, the owner of lot 2 east of, adjacent to the canal, and on the side opposite to defendants’ lot.</p> <p>In 1878 the defendants became, and have since remained,the owner of lot 5 on which the canal was built.</p> <p>Section 1, chapter 551, Laws 1880, provides: “ Sec. 1. Except as hereinafter provided, all the estate, right, title, interest and property which the people of this state have heretofore acquired and now have in and to all the lands and water privileges taken and appropriated for the purpose of constructing and operating the Chenango canal, and what is called and known as the Chenango canal extension, commencing at and lying south of the stone culvert in the village of Hamilton, in the county of Hadison, shall revert to and is hereby granted and released to and vested in the person or persons owning the lands adjoining to the center line of said canal, in consideration of and upon the condition precedent that such owner or owners shall, by an instrument in writing under their hands and seals and duly acknowledged, release and discharge the state from all obligation to maintain the bridges and other structures connected with such portions of paid canal, and of said extension, and from all liability for damages arising from the abandonment thereof; whereupon they and each of them are hereby authorized and empowered to hold, grant, devise and convey the same.”</p> <p>In March, 1882, the plaintiff executed the required release which was filed with, and approved by, the superintendent of public works, and recorded in Broome county pursuant to chapter 288, Laws 1881.</p> <p>The exception referred to in the first sentence of the section does not relate to the conditions of this case.</p> <p>In May, 1882, defendant entered upon the land east of the center line of the canal, and damaged it, for the recovery of which this action is brought.</p>

<p>New York (city of) Department of Parks—Is a subdivision of the city government —Not liable to be sued asa corporate entity — Complaint —Demurrer— T\hen well taken.</p> <p>The board of commissioners of the department of public parks, being only a subordinate division of the city government, are not liable to be sued as a corporate entity.</p> <p>In an action against such commissioners a demurrer to the complaint • should be sustained, notwithstanding an allegation that they are a domestic corporation.</p> <p>Such allegation not being of a matter of fact, but a conclusion of law, the court will judicially take notice of the fact that the defendants constitute a part of the municipal government of this city and that their powers are defined and limited by the charter of the city and other public statutes in relation to that subject.</p>

Learned, P. J, Bo aroman The defendants were recognized to await the action of the grand jury to convene at the May term of the Albany oyer and terminer, 1882.

This is an action for the construction of the last will and testament of John Lawyer, deceased. The testator died seized and possessed of property real and personal. By the third clause of his will, the testator gave to his wife “ during her natural life only, all the rent and interest accruing from the real estate ” of which he died seized.

<p>Demurrer to counter-claim.</p>

<p>Complaint—Answer—When answer frivolous—When motion for judgment on the ground of tne frivolousness of the answer will be granted — Stay of proceedings — W hen should not be granted pending an appeal from an order of the special term adjudging an answer frivolous, but allowing the service of an amended answer.</p> <p>The action was brought to recover for professional services rendered by the plaintiffs, as attorneys and counsel, in conducting certain actions and proceedings instituted by 'the defendant to obtain the possession of the office of mayor of the city of Albany, and which services were charged in the complaint to have been rendered upon the retainer and request of the defendant. The answer failed to take issue squarely upon this allegation, but sought to evade it by alleging that the service was not performed for the defendant any more than for any other citizen of-Albany:</p> <p>Held, that the answer might be literally'true, and yet there is no defense stated because the retainer and employment by the defendant to perform the services is undenied, and for this reason the answer is frivolous and the plaintiff is- entitled to judgment on account of the frivolousness of the answer, unless, the defendant serves an amended answer within ten days and pays ten dollars costs of motion.</p> <p>On a motion by defendant for a stay of proceedings pending an appeal to the general term from this order:</p> <p>Held, that the motion, should be denied unless the defendant gives security for the payment of the recovery in the action, if he fails upon his appeal from the order.</p>

This is a motion by the defendant Heidenrich to change the place of trial in the above action from the county of Albany to the city and county of New York, upon the ground that said action affects real estate situate in the city of New York, and is therefore local.

Ox December 26, 1883, plaintiff and others brought suit in the supreme court against defendant and procured an order of arrest. Answer was served on January 1, 1884, and the case noticed for trial on January 19, 1884, by both parties.

<p>Justices’ courts —Manner of reviewing justice’s judgment—When appellant may dema/nd neto trial in aptpellaie court—Practice — Code of Civil Procedure, section 3008.</p> <p>It is not in every case where the defendant demands in his answer judgment in his favor exceeding fifty dollars that he, as appellant, may demand and have a new trial in the appellate court, but only in those cases where from the nature of the action and the condition of the pleading it can be seen that the demand has some basis in fact or law in its support.</p> <p>An improper pleading cannot be made the basis of a demand for a new trial in the county court, under the Code, applicable to appeals from judgments rendered by justices of the peace.</p> <p>Where an action was brought in a justice’s court in trover for taking and converting a cow, and damages were claimed in the sum of fifty dollars, the defendant answered by general denial, also set up property in himself, demanded judgment for the dismissal of the complaint and for seventy-five dollars damages, &c. Judgment was rendered in favor of plaintiffs for forty-four dollars and twelve cents. The defendant in his notice of appeal to the county court demanded a new trial in that court. The justice’s return having been filed the plaintiffs moved thereon for an order transferring the case to the law calendar, and that it be heard on the justice’s return without a new trial therein, which motion was denied:</p> <p>Held, that the practice was correct. It was proper to determine in advance whether the appeal was to be tried on a question of fact or one of law. The county court had jurisdiction to determine that question, and it could do it as well on special motion as at opening of trial.</p>

<p>Appeal from an order granting a motion to offset judgments.</p>

<p>Counter-claim—Defendant not allowed to plead the same counter-claim to three independent actions brought by same plaintiff— Plaintiff may in his reply in second and third actions plead in abatement that counter-claim has been pleaded in first action—Defendant should protect himself by moving to consolidate or stay the second and third actions.</p> <p>A party who has brought an action is not precluded from setting up the same matter as a counter-claim in a cross action, hut will he compelled to elect between his own suit and the recoupment claimed, and if he elects the latter, his own suit will be stayed. But the rule does not extend so far as to allow a defendant to plead the same counter-claim to three independent actions brought by the same plaintiff. After using the counter-claim in the first action, the plaintiff may, in his reply, in the second and third actions, plead in abatement the fact that such counter-claim has been pleaded in the first action.</p> <p>The defendant should have protected himself by moving to consolidate the actions or to stay the second and third actions until the first action was disposed of.</p>

<p>Counter-claims by defendants who are sued, on alleged joint liability with others — Practice where such liability is denied — Such counter-claims allowed— Code Civil Procedure, section 1204.</p> <p>Where, in an action brought by plaintiff for the recovery of damages for the breach of a contract alleged to have been made by eleven defendants contracting jointly, the answer of three of the defendants denies the making of the contract alleged, but avers that the contract, whatever may have been its terms, was with the three defendants, and in respect to that sets up counter-claims:</p> <p>Held, that such counter-claims are tenable and well pleaded under section 1204, Code of Civil Procedure; that these defendants were not concluded by the allegations of the complaint, but could deny the joint liability, aver a several liability as to themselves, and then set up their counter-claims; that the issue as to whether the contract was with all the defendants sued, or those who set up the counter claims only, is an issue to be determined on the trial of the case, and if it should turn out to be correct, as the answer avers, the counter-claims would be legally applicable to any claim which might exist in favor of the plaintiff under the agreement or agreements {Affirming S. G., 60 Sow., 498).</p>

Motion by plaintiff or claimant to commence an action against Ashbel Green, as receiver of the North ¡River Construction Company, for the foreclosure of a mechanic’s lien, filed in the clerk’s office of Oneida county on the 21st day of December, 1883.

This action is brought by the plaintiff who was appointed sequestrator of the personal property of defendant West, to set aside certain conveyances made by him to his daughter, as fraudulent and void as against the plaintiff in actions of West agt. West.

Before Davis, P. J., Daniels and Brady, JJ. Appeal by Thomas S. Bullock, trustee and receiver, from an order denying a motion to vacate and set aside the order for judgment in this action, and from an order appointing George H. Henry receiver of the defendant and the judg-. ment continuing his receivership, and from an order denying a motion for a rehearing of the preceding motion, and from an order confirming the judgment and the order appointing George H. Henry as such…

Where, in an action to recover penalties for violation of the excise laws, the complaint charged that the plaintiffs were overseers of the poor, &c., and that the defendant was, on the 12th day of… Held: that the complaint is framed under and according to the rules and requirements of the common law, and is sufficient, as against the objection, that the reference to the law under which this action is brought is indefinite and uncertain.

<p>Bills of particulars— When should contain itemized statement of credits' as well as of debits— Code of Ciml Procedure, section 531.</p> <p>Under section 531 of the Code of' Civil Procedure, in an action on an accounting for goods sold and delivered,, a hill of particulars should contain an itemized statement of credits as well as debits.</p> <p>Williams agt. Shaw (4 Abb. Pr., 209) disapproved of and the cases distinguished where the action is on account between the parties and where it is a claim of one party.</p>

<p>Motion by defendant to vacate last order of county judge and the judgment entered by plaintiff.</p>

<p>Judgment —• Effect of— V/hen party estopped from applying to court of equity to set aside judgment, because of fraud — Complaint — Demurrer.</p> <p>The plaintiff, as administratrix, sued to recover $3,500, claimed to have been wrongfully received by defendant as interest upon the foreclosure of a $25,000 mortgage executed by the intestate, said sum being alleged to have been already paid to defendant for interest, on said mortgage by the intestate in his lifetime. The complaint alleged that judgment of foreclosure and sale was duly entered and the premises afterwards duly sold by a referee duly appointed:</p> <p>Meld, that it follows from the allegations of the complaint, that in all these proceedings on foreclosure, the plaintiff’s intestate had notice, and that the amount to which the defendant in this action and the plaintiff in the foreclosure action was entitled for principal and interest was directly in issue; and the defendant is entitled to judgment on demurrer to the complaint.</p>

<p>Motion for a mandamus to compel the supervisors to cancel the audit of services to a defacto coroner.</p>

Before Mo Adam, O. J., Hyatt and Hall, JJ. Appeal from a judgment rendered in a summary proceeding under which the tenant was removed, &c.

The plaintiffs brought this action to foreclose a mortgage given to them by defendant Willis, July 28, 1882, to secure the sum of $5,000. The complaint averred upon informa.tion and belief,- that the defendant Thompson had or claimed do have some interest in or lien upon 'the mortgaged premises, which interest or lien, if any, had accrued subsequently to the lien of said mortgage, or was subject thereto.

The action was brought to foreclose a mortgage. Mary Gf. Pennie and Alfred 1ST. Pennie each owned one undivided sixth part of the premises subject to the mortgage. Mary Gf. Pennie was an infant of the age of sixteen years and Alfred N. Pennie an infant of the age of fourteen years. Both resided in Pennsylvania. On October 5, 1883, an order was made for service of the summons and complaint on said defendants by publication.

The action was brought for the partition and sale of certain real estate situate in the city of New York. One of the defendants is an infant of the age of two years and a nonresident of the state. Service of the summons was made upon said infant personally without the state under an order of publication. Said infant, appeared in the action by a guardian ad litem, duly appointed, and answered the complaint. The premises were sold in three parcels, January 8, 1884, for $30,850.

This is a motion to advance a cause and place it upon the circuit calendar of preferred causes for trial under Rule 36 of the General Rules of Practice, upon the ground that the defendant is imprisoned under an order of arrest and unable to obtain bail. The action is brought to recover damages for the wrongful conversion of personal property, and the order of, arrest was granted under subdivision 2 of section 549 of the Code of Civil Procedure.

<p> Chattel mortgage—When mortgagor has such an interestin'the mortgaged property as may he levied upon and sold. </p> <p>Where a chattel mortgage gives to the mortgagor" a- right of possession till the payment of the mortgage debt be dtemanded;.he has an. interest in the mortgaged property that may be levied upon. and. sold.</p>

<p> Assignment—When its legality to he assumed—What necessary to he shown to justify granting injunction restraining assignee from executing his trusts. </p> <p>Unless an assignment for the benefit of creditors is void upon its face, or the extrinsic facts which go to show its invalidity are most clearly made out, its legality is tp be assumed; and a clear case voiding the assignment should be made out to justify the granting of an injunction against the assignee restraining him from executing the trusts created by it.</p>

Application by McDonald to be discharged from imprisonment in the common jail óf Albany county, in which he is confined by the sheriff of such county, under a commitment of the Senate of the State of ¡New York, which recites a judgment of such body holding him to be in contempt for refusing as a wdtness to answer questions propounded by its standing committee upon cities, and sentencing him to imprisonment therefor.

<p>Constitutional law—Constitutionality of chapter 147 of the Laws of 1876, in relation to the improvement of the Harlem river and Spuyien Luyvil creek, and the various acts amendatory thereof, upheld.</p> <p>On a motion to vacate and set aside several orders and proceedings thereunder or subsequent thereto, which had for their object the carrying into effect the various statutes in relation to the improvement of the Harlem river and Spuyten Duyvil creek, on the ground that chapter 147 of the Laws of 1870, chapter 345 of the Laws of 1879, chapter 05 of the Laws of 1880, chapter 01 of the Laws of 1881, chapter 387 of the Laws of 1882, chapter 410 of the Laws of 1882 and chapter 214 of the Laws of 1883 are, and each of them is, unconstitutional and void, as being in contravention of section 6 of article 1, and also of section 11 of article 8 of the constitution of the state of New York:</p> <p>Held, first, that the purposes to which the land sought to be taken in these proceedings are to be devoted are public within the meaning of our constitution. The use being in its nature public, the legislature are the sole judges of the question whether the benefit to our citizens or to the state is such as to warrant the taking of private property therefor, and are also the sole judges of the question of the supervision or control over the use, which should be retained in order to secure the contemplated public benefits.</p> <p>Second. A court at special term should not declare an act to be in conflict with, the provisions of the Constitution of the United States or of the state, unless its conflict with those provisions is clearly apparent.</p> <p>Third. That the acts are not unconstitutional in that private property condemned is not taken for a public use within the meaning of the constitution.</p> <p>Fourth. That a sure pledge is given to the owners of lands taken that they shall be paid before possession of the lands is taken under the acts, and the act is not subject to the criticism that a first, sure and certain compensation is not secured to said owners for the value of their property.</p> <p>Fifth. Nor can it be said that the lands in question are proposed to be taken without due process of law. If the acts are valid, the taking is by due process of law.</p> <p>Sixth. Nor are the proceedings invalid because they were not instituted by the United States district attorney for this district.</p> <p>Seventh. That the widening, deepening and improvement of the Harlem river, as contemplated by the acts is a city purpose. The improvement, if carried out, will develop that portion of the city which fronts upon the Harlem river, an'd will bring into closer communication the parts of the city which lie upon either side of the river, which river now runs exclusively within the city limits.</p> <p>Eighth. That if the acts of the legislature are constitutional in other respects a private individual cannot raise the objection that the lands of the city have been illegally given away.</p> <p>Ninth. That the objections to the acts cannot be sustained on the ground that the assessments take from the party assessed private property for the public use. The legislature has power to take lands under eminent domain and to pay for them by assessments on the land benefited thereby.</p> <p>Tenth. That the constitution does not require that the title of an act should speeify all of its provisions. In this case the general subject is expressed in the title, which is the single one of acquiring the right of way, and what is necessarily incidental to it for the improvement of the Harlem river, and although there are changes in the details for carrying ont the scheme of the improvement, the general subject of all the acts remains the same.</p>