Volume 67 — Howard's Practice Reports

<p>Code of Civil Procedure, section 1019 — Bight to terminate reference — Bieferee must file his report with clerh, or actually deliver'ür a pa/i'ty within sixty days.</p> <p>A referee, under section 1019 of the Code of Civil Procedure, will' not have done his duty unless he delivers his report to the clferk t'o be filed in case it is not taken up by one of the attorneys within sixty days..</p> <p>Notification to the plaintiff’s or defendant’s attorneys by the referee that his report is ready and at their disposal, on payment of his fees (naming the amount), is not to be deemed a sufficient delivery to prevent the forfeiture of his fees or the termination of the reference under this section of the Code.</p> <p>(See Thornton agt. Thornton, 66 How., 119, where the same cases are cited and a different conclusion reached by Haight, J.)</p>

This is an appeal from a judgment entered in Delaware county November 15, 1882, upon a trial before the court at special term, dismissing plaintiff’s complaint on the merits, and for the recovery of seventy-four dollars and sixty-nine cents costs.

<p> Appeal from judgment of district court—When common pleas will review evidence on a question of fact. </p> <p>Where there is conflicting evidence on a question of fact in the court below, this court will review the evidence and reverse the judgment appealed from, where it is clearly against the weight of evidence.</p>

<p> Trust estate—Deed of trust—Power of trustee under. </p> <p>Where a wife is empowered by a deed of trust executed by herself and husband to apportion by will or other instrument, in writing, certain property among her children and their descendants, she cannot limit ■ the trust estate to an estáte for life in her children with remainder to their issue, but must apportion the prooerty itself and all the rights incident to ownership.</p>

This action was brought against the defendant to recover from him a corporate debt, as a penalty under section 12 of the Laws of 1848. At the close of the plaintiff’s case the defendant moved to dismiss the complainant’s case, which motion was granted, and a judgment entered thereon. An :appeal was thereupon taken by the plaintiff to the general term, .and the order and judgment appealed from were ¡reversed and a new trial ordered.

<p>Code of Civil Procedure, sections 1762, 1763, 1769, 3230—Action for separation by husband or wife—For what causes may be maintained—Cruel and inhuman treatment which will authorize a separation—What constitutes a person a resident of this state-Expenses of action and costs, how awarded.</p> <p>The residence of a man is changed from one place to another only by an abandonment of his first place of domicile with the intention not to return, and by taking up his. residence in another place with the intention to permanently settle in that place.</p> <p>Where it appeared from defendant’s o.wn testimony that, during all the time of his sojourn in Dresden, whenever he has had occasion to state his residence he has described himself as a resident of the city of New York; that he has every year paid the stranger’s tax in the city of Dresden; that all the property he expects to inherit is situated in the city of New York:</p> <p>Held, that from his own evidence he has never had any intention of obtaining a residence anywhere else than in the city of his birth, and was consequently a resident of the state of New York at the time of the commencement of this action.</p> <p>Cruel and inhuman treatment which will authorize a separation, or which will permit a wife to say that it is unsafe or improper for her to cohabit with her husband, must be either actual personal violence, committed with danger to life, limb or health, or there must be a reasonable apprehension of personal violence, arising from menaces or threats creating a reasonable fear of bodily harm; mere austerity of temper, petulence of manners, rudeness of language, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty.</p> <p>While the treatment of the plaintiff by the defendant was frequently unkind, while he frequently indulged in fits of passion and used violent language, and by his conduct, supervision and attempts to control her every action, made himself, at times, very disagreeable to her, and frequently caused her great unhappiness; while he was severe, harsh and even ungentlemanly, yet his conduct was not such as to create any apprehension of personal violence, or to cause injury to the health of the plaintiff, and for that reason she is not entitled to a decree for a separation.</p> <p>That defendant made an unfounded charge of adultery against plaintiff while she was living separate from him, and which only came to her notice indirectly, is not such an act of cruelty as to warrant a separation. Nor does the making of a charge of adultery, even to one's wife, constitute cruelty, unless such charge be made in bad faith, and without any ground for believing it to be true.</p> <p>Where in an action brought by the wife against her husband to obtain a separation from him, and he sets up a counter-claim and alleges that his wife was guilty of adultery, and such allegation was made as a foundation for a claim for ¡¿demand for affirmative relief, and not simply as a defense to plaintiff’s action:</p> <p>Meld, that this was tantamount to the commencement of an action by him against his wife for divorce on the ground of adultery, and as to that counter-claim she has the same right as though she were defendant in an action brought against her for an absolute divorce, and although her complaint be dismissed, yet where she succeeds n refuting the charge of adultery, she is entitled to an allowance for her counsel fees and expenses of preparing for trial pendente lite.</p>

The plaintiff obtained a judgment against the defendant for referee’s fees for $119.49, entered March 12, 1881. The defendant’s undertaking on appéal to stay execution on this judgment described it as enteréd March' eleventh; a similar date was in the notice if appeal. The plaintiff claimed there Was no stay, and issued execution to the sheriff, Who made á 'lévy on defendant’s property. The defendant moved' to set aside the execution and for restitution of his property.

<p>Stock exchange membership — Proceedings for expulsion — Bights of member — Courts authorized to interfere for the purpose of seeing that the rules of such association are fairly and honestly administered.</p> <p>In every proceeding before a club, society or association, having for its object the expulsion of a member, the member is entitled to be fully and fairly informed of the charge and to be fully and fairly heard. The plaintiff, a member of the New York Stock Exchange, an incorporated voluntary association, having been charged by a special committee of investigation, after taking voluminous testimony, with being guilty of improper practices, the governing committee of the exchange, who are empowered by its constitution to expel members adjudged to have been guilty of obvious fraud, preferred charges against him based upon the testimony thus taken. He was permitted to make statements and explanations before the investigating committee, and to cross-examine the witnesses produced. Then he appeared before the governing committee and read his defense at great length. At a subsequent meeting on June sixth, in his absence, two accusing witnesses were examined by the governing committee, who then negatived a proposition that these witnesses be brought again before them to be cross-examined by the accused member:</p> <p>jHeld, first, that though the governing committee is not bound on the trial of a member for misconduct by the ordinary rules which obtain in judicial proceedings, yet the court should interfere for the purpose of holding the association to a fair and honest administration of its rules.</p> <p>Second. The action of the governing committee on June sixth was not just or fair to the accused member in either a legal or equitable sense, and defendants should be restrained pending the action from asserting against plaintiff the resolution of expulsion passed upon him.</p>

<p> Code of Civil Procedure, section, 2618—Practice as to prolate of a paper propounded as a will—Witnesses to le examined—Proof required, and manner of obtaining it. </p> <p>The proponents of a paper which is claimed to be this decedent’s will lately finished the presentation of their proofs. The contestant, through her counsel, thereupon filed an affidavit alleging facts which tend to show that the testimony of certain persons in such affidavit named “ may be material ” to the issues of this proceeding. The contestant also caused to be filed and to be serYed upon the proponents a notice to the effect that, before proceeding to introduce proofs in opposition to probate, she required the examination of the persons in such affidavit named :</p> <p>Held, first, that the duty of producing such witnesses falls upon parties proponent, not because the statute so declares, but because, as it fails to impose that duty upon parties contestant, they can rest securely upon the fact that, until such witnesses have been produced and examined, the will cannot be admitted to probate.</p> <p>Second. The course of the examination of witnesses brought into court by proponents at the instance of contestants, is a matter purely in the discretion of the surrogate. Such witnesses must be examined, because the law demands their examination, whenever the proper notice has been filed and the surrogate has found them to be material. They are not to be charged, so to speak, to the account of eitherparty. They are to be examined by the surrogate. The surrogate can require counsel to assist him in the examination. Neither party can demand, as of right, the opportunity of first examining the witness who has been produced in pursuance of the notice, and neither party can demand, as of right, that his opponent shall begin such examination. The surrogate should see to it that both parties are afforded a fair opportunity for full and searching investigations. In most instances, where witnesses shall be thus brought into court at the request of contestants, it will be the most natural course to call upon the contestants themselves to pursue the inquiry in the first instance, because, presumably, they will be better advised than their adversaries as to the precise matters which they wish and expect to prove ; but in such cases a direction to the contestants to begin the inquiry, will not of itself involve any limitation upon their right of making that inquiry as searching and thorough as they would have been permitted to make it if the witness had been voluntarily produced by the opposite party and had testified in its behalf.</p> <p>Third. As to when witnesses produced in accordance with section 2618 of the Code of Civil Procedure are to he examined, it is a mere question of the order of proof, and is entirely within the discretion of the • surrogate. In the exercise of such discretion he would ordinarily permit the party applying for the examination to decide for himself when that examination should be had.</p>

Motion by defendant for a new trial upon the ground that the court instructed thejury in the absence of counsel, and the officer in charge of the jury held an improper communication with them. The cause was tried at the Oneida circuit on the 21st of November, 1883, and resulted in a verdict for the plaintiff.

<p>Easement — Light, air and.fxee_ access Jo premises part of eg&ppcnt in public street— Legislature's power to permit erection of poles for electric wires without providing for compensation to owsrs of premises — Questions of fact.</p> <p>The legislature has no power to permit, by the erection of poles for the support of electric wires in front of a person’s premises, the taking of such person’s property by impairing the use and enjoyment of the light, air añdTffee access to his premises, which forms part of his easement in the public street, without having provided for the payment to such person of due compensation therefor.</p> <p>Whether the erection of the poles would have been a substantial impairment of the use of such easement is a question of fact.</p>

<p>Witt — Distribution — Husband and wife—Administration by husband — Lapsed legacy.</p> <p>The testatrix, who left no descendants, by her will gave her husband certain property and one-half of the remainder of her estate, giving the other half to a brother and sister in equal shares:</p> <p>Held, that the share of the brother, who died before the testatrix, belongs to the husband and not to the brother’s heirs-at-law,</p>

This was an action of libel tried before judge Van Vorst and a jury, at a circuit held in Hew York, February, 1884. The plaintiff, the publisher of a newspaper in the city of Hew York called “ Truth,” sued the defendant for an article written by him and published in the “ Cincinnati Enquirer,” which plaintiff claimed to be libelous. The defendant was a regular correspondent of the “ Cincinnati Enquirer.” The matter claimed to be libelous appears in the charge of the court.

Action in trover against the defendants, brokers and members of the stocks exchange, for the value of certain negotiable bonds stolen from the plaintiffs’ vaults by masked burglars and afterwards bought and sold by the defendants. The bonds contained a covenant making the principal due, in case of default in the interest coupons, or of default in the stipulated payments to the sinking fund. Such defaults had occurred for a long period.

The complaint sets forth the copartnership of the defendants under the firm name of J. & W. Seligman & Co.; that prior to'April 15, 1883, John Austin delivered to the firm of •Kempf, Nenninger & Co., then doing business as refiners and smelters, 5,820 pounds of jewelers’ sweepings to be refined, which assayed sixty-eight pennyweights of gold and silver per 100 pounds, amounting in total value to $4,292.41, for which refining Austin was to receive $320.10; that on April…

The action was for “ damages for nondelivery of goods.” The facts shown were: On November 1, 1882, at Newark, N. J., one Mercy delivered to defendant's express company a package to be shipped to plaintiffs, at New York, and received a receipt which contained the condition that in no event should the company be liable for any loss or damage, unless the claim therefor should be presented to them in writing within thirty days after the date of the receipt, in a statement, to…

On the 9th day of May, 1883, the relator, Edward Evans, was brought before the recorder of the city of Binghamton charged with having beaten, struck and assaulted one A. Levine, and the charge being read to the relator he then and there pleaded guilty thereto, wherefore he was sentenced to be imprisoned in the Albany penitentiary for the period of six-months.

The assessment was imposed under 2 Revised Statutes, chapter 12, title 2, article 1, section 5, and article 2, section 10 (See 2 R. S. [Bank’s ed.], pp. 989-991). The proceedings were brought under section 857 of the New York city consolidation act (Laws, 1882).

In this case execution was duly issued to the sheriff of New York county against the property of the defendant, upon which a levy was accordingly made. Application for a stay to allow defendant time to make and perfect an appeal was made and granted. The appeal was subsequently argued, and judgment affirmed.

<p>Code of Civil Procedure, section 2620 — Witt—Subscribing witnesses—Proof of handwriting sufficient to establish the execution of a will.</p> <p>Where a will contained a full attestation clause, the mere non-recollection of a witness, in respect to the circumstances of its execution, will not justify a finding that the statutory requirements have been disregarded.</p>

This is an appeal from an order of the special term of the supreme court, made by justice Follett, denying “ disbursements ” incurred upon a reference and trial, under the statute (2 R. S., 88, sec. 36; 7th ed., p. 2299, sec. 36) of a claim rejected by defendants as executors. The claim presented was for $l,900.90 and interest. Plaintiff recovered $321.35.

<p>Jurisdiction in divorce — When record of foreign court binding upon plaintiff.</p> <p>The plaintiff having brought this action for a limited divorce from defendant, the latter set up a divorce obtained by him from her in Massachusetts:</p> <p>Held, that the record of the Massachusett’s court is binding upon the plaintiff as it shows all the facts necessary to give that court jurisdiction both: of the-subject matter and of 'the- parties.</p>

<p> Taxes on personal property—Liability of executors and administrators for taxes imposed upon personal property in their hands belonging to the estate. </p> <p>Allegations that certain, charitable institutions which were beneficiaries under the will made frequent demands upon the executors far the payment of their bequests shortly after the admission of the will to probate in 1881, and that such requests were based upon the urgent need of the funds, and that such requests being complied with, the executors when notified of the imposition of the tax for the collection of which these proceedings are brought, had no moneys in their hands applicable to the payment of such taxes, is no excuse for the non-payment.</p> <p>It was the duty cf the executors, before appropriating any portion of the estate to charitable purposes, to see that the debts of the estate both to individuals and to the state were provided for, and if they have omitted to do so the court is without power to afford them relief.</p>

<p>Negligence—Sleeping car companies — Loss of property, under control of passenger — When company not liable for.</p> <p>While sleeping car companies owe greater duties to their customers than ordinary railroad carriers of passengers, still they can only.be held liable for property lost while under the control of the passenger, upon proof of some fault or negligence upon their part, and the mere fact of such loss, unaccompanied by any other proof, raises no presumption of negligence.</p>

Appeal by plaintiff from judgment of general term of city court affirming judgment of trial term dismissing complaint. Action for failure to return execution against Charles Gr. Wilson’s property after sixty days from the receipt thereof.

<p>This action was brought to recover the amount claimed to be due to the plaintiffs upon an instrument in writing, dated April 25, 1865, whereby they granted, bargained, sold and assigned to the defendants “ the wharfage which shall or may arise,: accrue or become due between the 1st day of May, 18.65.,,and the 1st day of May, 1875, for the use or occupation ’by vessels of more than five tons of burthen of * * * the south side of pier number 51, North river;” such instrument contained the following, among other provisions, viz.:</p> <p>“And .it is hereby expressly understood and agreed by and between the parties to these presents, that the said parties of the first part, or their successors, may, at any time during the continuance,of these presents, set apart for their use any or all such wharves, docks, piers or slips hereinbefore mentioned, as they,-the-said parties of the first part, may during the time last mentioned require. * * * It shall be the duty of the comptroller of the city of Mew York, or the person for the time being .lawfully administering the office of comptroller, to notify the said parties of the second part or their assigns, in writing, when any part of the said premises is to be' taken by the said parties of the first part or their successors, and from the time of the service of such notice the right to the part of the said premises so required by the said parties of the first part, or their successors, shall vest in them for all purposes. But in every such -casé it shall be the right of the said parties of the second part, or their assigns, to have an equitable deduction for the future made from the rate of rent in this lease reserved, to be ascertained and settled by the comptroller, or the person lawfully administering the office of comptroller:; and the rent to be thereafter paid by the said parties of the second part, or their assigns, shall be the balance remaining .after the .deduction so made as aforesaid.”</p> <p>There are also-covenants on the part of the grantees that ithey will not assign any of their rights without the written ^consent of the .grantors, iand that they will pay the. annual rent of $1,500 in equal quarterly payments, on the first days of August, November, February and May. On the 9th of October, 1873, notice was served requiring the whole of the premises, and shortly thereafter the plaintiffs took possession.</p> <p>Bowne, one of the defendants herein, subsequently commenced an action against the plaintiffs herein to recover damages for such taking possession, claiming that it was a breach of said agreement. The plaintiffs, as defendants in that action, pleaded as a counter-claim their right to recover rent for the quarter ending November 1, 1873. Upon the trial of that action the plaintiff therein was nonsuited, and the judgment recorded was read in evidence in this case.</p> <p>Upon the trial of this action a verdict was directed in favor of the plaintiffs for $291.66, being the proportionate amount of rent accruing between August first and October ninth. The ease was reserved for further consideration, with leave to plaintiffs to move for judgment on the verdict, and to the defendants to move for a nonsuit, notwithstanding the verdict.</p>

Plaintiff, as assignee of Chauncey S. Truax, sued for services as referee to sell in foreclosure under an express agreement. The defense, among others, was payment in full. Several adjournments were had and then the property was sold at private sale. Further facts appear in the opinion.

<p>Executors and administrators— Their commissions, how and when allowed— When changeable with interest.</p> <p>It is provided by the Revised Statutes (part 2, chap. 6, title 3, art. 3, sec. 58 [3 Bank’s 7th ed., 2303]), that “ on the settlement of the account" of an executor or administrator he shall be allowed for his services certain commissions..</p> <p>Such officer is chargeable with interest on sums appropriated by him in payment of commissions in advance of their allowance by the surrogate. Where an administrator, in January, 1878, deposited to his own credit in a bank certain moneys belonging to the estate, where they were mingled with his own funds:</p> <p>EM, that if the withdrawal of such moneys by the administrator and his deposit of that sum to his private account is to be deemed an appropriation by him of his commissions, he should be held accountable for interest thereon.</p> <p>And if he is not to be regarded as having practically transferred these funds to himself under a claim of right, but rather as having held them as estate funds to be accounted for, then he is chargeable with interest for having failed, since January, 1878; to make such use of them as would result in some advantage to the estate.</p>

<p>Bail — Exoneration by death, of principal— Application must be made before time to answer expires — Code of Civil Procedure, sections 600, 601.</p> <p>Where the bail apply to be exonerated on account of the death of their principal, the application must be made before their time for answering expires.</p>

<p>Divorce — Punishment for contempt — Power of the court to strike out a defendant’s answer who is in contempt in not paying alimony and counsel fees— Code of Civil Procedure, secs. 1773 and 2281.</p> <p>The provisions of the Code of Civil Procedure for fine and imprisonment of a husband in default for non-payment of alimony do net interfere with or restrict the power of the court to strike out the answer of a disobedient defendant in a divorce suit.</p>

<p> Attachment—When the threat of a debtor that he will make a preferential assignment, furnishes no ground, for the issue of an attachment. </p> <p>Where the grounds of the allowance of an attachment was that the defendant was disposing of, or was about to assign and dispose of his property with intent to defraud his creditors, and those grounds were sought to be supported by threats alleged to have been made by defendant, that if sued he would make a preferential assignment of his property, in which case those prosecuting him would get nothing on their claims. In connection with such threats his insolvency was stated with an offer to the plaintiff to compromise at fifteen per cent.</p> <p>Held, that the attachment was improperly granted. The facts stated are insufficient to charge a debtor with an intent to defraud his creditors (The case of Anthony agt. Stype, 19 Hun, 268, explained).</p>

Demurrer by defendant to the complaint on the following grounds:: First. That the court has not jurisdiction of the person of the defendant. Second. That the court has not jurisdiction of the subject of the action. Third. That the amended complaint does not state facts sufficient to constitute a cause of action.

<p>Execution against property must be issued before creditor’s action can be maintained— Code of Civil Procedure, sections 1871, 1371.</p> <p>An execution against property must be issued before a creditor’s suit can be maintained, and the fact that the debtor himself may be deceased forms no legal excuse for the omission to issue the execution.</p>

Motion by plaintiff to confirm report of referee upon a claim against an estate referred under the Revised Statutes, and for judgment thereon with disbursements.

<p>Voluntary deed of trust— When set aside — Effect of absence of power of revocation.</p> <p>The plaintiff sued to set aside a deed of trust to her brother-in-law of property which came to her through her mother’s will. The day succeeding the mother’s funeral her will was opened and accompanying it was found a letter, written ten years before, requesting plaintiff to put her share of the property in trust, and a form of deed was inclosed. The plaintiff then consented to sign the deed, which was executed a few days after, whereby she made an irrevocable settlement of her property, reserving the power of appointment, by last will and testament, in favor of those related to her by consanguinity, and in default of such appointment the trustee was to convey the estate to her children or descendants, and in case she should leave no child or descendant, the estate was to go by force of the deed to her heirs-at-law and next of kin. The plaintiff at the time of executing the instrument was in feeble health, and did not know the amount or condition of her property, and testified that she did not understand that she was making an irrevocable disposition of it. The trustee, under whose eye and with whose active co-operation the settlement was made and executed, and whose family was benefited by its terms and limitations, asked her and her sister “if they did not wish to follow the wishes of their parents, who .were dead:”</p> <p>Held, that plaintiff should be relieved from the settlement, and the deed of trust should be set aside.</p>

<p>Answer—When party need not verify—Code of Civil Procedure, sections 523, 529 — Construction of these sections.</p> <p>Where a party would be privileged from testifying as a witness concerning the matters alleged, he need not verify his answer. He is privileged where the answer will have a tendency to accuse him of a crime or misdemeanor, or to expose him to a penalty or forfeiture.</p> <p>Conveying property in fraud of creditors furnishes an exceptional case by force of section 529.</p>

<p> Taxes and assessments—Savings tanks—How and in what manner to he taxed—When uninvested cash not liable to assessment and taxation. </p> <p>In a proceeding to test the validity of an assessment levied upon a savings hank, it appeared hy the oath of its treasurer that on July 1, 1883, its surplus was $48,252.04, and that the whole of its surplus was invested in government bonds. It had the sum’of $97,750 invested in such bonds. On July 1, 1883, the bank had on deposit in the First NationalBank of Ithaca the sum of $46,978.19. The money so deposited was shown to have formed a part of the assets of the bank, but no part of its surplus. It was also shown that-the hank had no other personal property liable to taxation. No United States bonds were purchased by the bank from January 1, 1883, to July first of that year. During that time the bank’s surplus had increased about $1,750, and during all this time the bank had United States bonds to an amount largely in excess of its surplus:</p> <p>Held, first; that as the statute under which the bank was incorporated did not authorize it to hold property consisting of money, goods or other property to be employed by it in conducting the business of the' corporation, and which could not be withdrawn or divided among its members, it cannot be held that the bank had any capital, or that the money it had in the First National Bank uninvested was taxable under the provisions of the Revised Statutes.</p> <p>Prior to the statute of 1857 (Laws of 1857, chap. 456, sec. 4) the money deposited in savings banks was taxable as the personal property of the depositors, but since that statute a savings hank cannot be taxed on such deposits.</p> <p>When a repealing statute is itself repealed, the first statute is revived. When the legislature in 1882 repealed the statute of 1875, which repealed the act of 1867, the statute of 1867 was revived and came into full operation again.</p> <p>Under the statute of 1867, if the surplus of the savings bank was not invested in United States securities, the assessors had authority to assess the bank for its privileges and franchises as personal property, to the extent of its surplus not so invested, But this bank had the whole of such surplus invested in such securities, and therefore had nothing which was liable to taxation under the statute.</p> <p>Before it can he held that there is a surplus in the hands of a savings bank, which is liable to assessment and taxation under the statute of 1867, there must be deducted from the total assets of such bank, first, the amount of all the just debts owing by it, and second, the amount of its assets which are actually invested in United States securities, and the remainder, after making both of these deductions, is the only surplus which is the subject of assessment and taxation.</p>

<p>Answer, what to contain—when answer may be stricken out as frivolous—Code of Civil Procedure, section 500.</p> <p>In an action by one domestic corporation against another domestic corporation the answer was as follows: “ The defendant answering the complaint of the plaintiff, upon information and belief, alleges: First, that it admits that both plaintiff and defendant are domestic corporations; second, it denies each and every allegation in said complaint contained:”</p> <p>Held, that the answer was frivolous. It did not deny that it did not have knowledge or information sufficient to form a belief of either of the allegations contained in the complaint. Neither did it in direct terms deny either of such allegations. It was so substantially defective as to create no issue in the case.</p>

<p> Elevated railroads—Ho right to place stair-cases or build stations in or over intersecting streets—When owner of building entitled to injunction to prevent the maintenance of such depot. </p> <p>Chapter 478 of the Laws of 1867, which authorized the defendants to construct an elevated railroad along both sides of Greenwich street, and on Ninth avenue, or on streets west of Ninth avenue, does not empower defendants to place stair-cases or to build stations in or over the streets that intersect the line of the railroad.</p> <p>Held, that the depot in question in Warren street was erected and is now maintained without the authority of law and is a purpresture.</p> <p>Held, further, that the plaintiff falls within that class of sufferers whose injuries are such as to give them individually a right to demand the protection of the court, and his right to an injunction is clear.</p> <p>The plaintiff by maintaining a wooden awning over the sidewalk does not deprive himself of his right to complain of an unlawful structure that darkens his windows and renders his store unfit for the transaction of his ordinary business.</p> <p>Nor is the plaintiff guilty of such laches as to disentitle him to an injunction.</p>

<p> Insolvent assignment—When a creditor is to be held to have acquiesced in the fact of an assignment by the debtor for the benefit of creditors, and the legality of such assignment, so as to be estopped 'from claiming that it was fraudulent in its inception. </p> <p>When a debtor, in failing circumstances, has made an assignment of his estate for the payment of his debts, his creditors may come in under the assignment and insist that the assignee shall, with fidelity, execute the trust in pursuance of the instrument. Or the creditors may stand aloof, refusing to recognize the validity of the instrument on the ground of actual fraud or other illegality, and they may institute appropriate proceedings at law or in equity to test the validity of the assignment in the courts.</p> <p>Creditors have an election as to which course they will adopt. They cannot pursue both. Creditors cannot in one moment take steps in recognition of the assignment, and in the line of its strict enforcement, according to its terms, and seek to hold the assignee to its performance, and in the next repudiate it as fraudulent and void.</p> <p>An election may be implied from the facts and circumstances of the case, and when an election is made it is irrevocable. Creditors may express their election to come in under an assignment in several ways: “by giving notice to the assignee of the acceptance of it,” and less formally by simply presenting their claims to the assignee for payment or dividend. By coming in under a voluntary assignment, creditors express their election to accept of its provisions, and are considered as acquiescing in the disposition made.</p> <p>The act of a creditor in verifying his claim and presenting it to an assignee is. a recognition of the lawfulness of his title to the assignee’s estate, and of his right to administer the same, in payment of the debts of the assignor, as provided for in the instrument. And when a creditor having verified his claim and presented it, goes further and becomes a party to a proceeding for :am accounting by the assignee, under 'the statute, and exercises the right to scrutinize the accounts and to interpose objections to payments and disbursements made by the assignee, he should be held to have acquiesced in the fact of the assignment by the debtor for the benefit of creditors, and the legality of such assignment, so as to be estoppbd from claiming that it was fraudulent in its inception.</p>

<p> Answer—Denial of allegations in the complaint, how mag he made. </p> <p>In an action against a corporation, an answer verified by its treasurer denying upon information and belief, each and every allegation of the complaint, except the allegation of the defendant’s incorporation is in accordance with the present practice and creates a triable issue of fact, which must be disposed of by a trial in the regular way.</p>

The firm of Dodge & Sinclair made a general assignment for the benefit of creditors on the 28th day of November, 1882, with liabilities of about $150,000, and assets of about $50,000. An action was commenced by Louis Windmuller and others by creditors’ bill, to set aside the assignment on the ground that a preference of the mother of Sinclair, one of the assignors contained in the assignment, was fraudulent and nullified the whole deed.

Demurrer to answer. Plaintiff’s complaint alleged that on a certain date defendant, by means of fraudulent representations, obtained money from plaintiff and gave him an instrument in writing, which was set forth and continued in the ordinary form of a complaint in an action for fraud.

<p>Attorney’s lien—To what extent, and how enforced—Code of Civil Procedure, section 66.</p> <p>Prom the commencement of an action the attorney has a lien upon his client’s cause of action, which attaches to a verdict, report, decision or judgment in his client s favor, and the proceeds thereof in whosoever hands they come, and cannot be affected by any settlement between the parties before or after judgment.</p> <p>A settlement, after issue joined, had between the parties, although conclusive as to them, in no way affects the attorney, who may proceed in the action as if no settlement had been made.</p> <p>But the lien cannot be enforced upon a mere motion to compel the defendant to pay the plaintiff’s attorney his taxable costs by awarding a judgment therefor.</p> <p>An application by “plaintiff’s attorney” for an order directing the defendant to pay “ his costs and counsel fee,” or that he have judgment therefor, is not warranted by the practice.</p>

<p>Examination of advene party before trial—When order for should be granted — Code of Civil Procedure, section 872, subdivision 4.</p> <p>A plaintiff in an action has the right, under the Code of Civil Procedure, to an order for the examination of one of two defendants, to prove a copartnership between the defendants.</p>

<p>Code of Civil Procedure, sections 738, 1932, 1278— Offer of judgment by one of several joint debtor's or partners will not bind the others.</p> <p>There is no statutory authority allowing one joint debtor or partner to make an offer of judgment in behalf of his joint debtor or copartner. “ The like offer," as used in section 738, of Code of Civil Procedure, means that judgment must be taken against him who makes the offer if separate judgment can be taken.</p> <p>Section 1932 of the Code of Civil Procedure, allowing judgments to be entered in form against both joint debtors when only one is served, does not relate to judgments entered upon offers.</p>

<p>Undertakings on appeal—When may be given by corporation — When not to be accepted—Code of Civil Procedure, section 1326.</p> <p>Where a plaintiff, desiring to appeal-to -the court of appeals, presents- an, undertaking executed by a corporation claiming authority under chapter 486, Laws of 1881, to guaranty the fulfillment of the conditions of undertakings on appeal, he should himself execute the undertaking.</p> <p>Although the company guarantying the fulfillment of the conditions of the undertaking may be in the condition described in section 3, it is the duty of the judge in each particular case to exercise his discretion, as to whether the actual state of the company’s business justifies the approval of the undertaking. Such approval is entirely in his discretion.</p>

<p>Arrest—Order of, under subdivision 4, section 549, Code of Civil Procedure— When must he vacated— Complaint must he presented with, motion for the arrest.</p> <p>In an action upon contract the imperative requirement is, that it must be alleged in the complaint'that the defendant was guilty of fraud. ' Where there is no complaint presented with the motion for the arrest, and the affidavits do not aver what the allegations of the complaint were, the order of arrest will be vacated.</p>

<p>Certioraris to review assessments of the relator’s real estate in the town of Rosendale in the years 1880 and 1881.</p>

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

Motion to punish the surety for contempt in swearing falsely as to his pecuniary responsibility. Kolter was a surety upon an undertaking, on which an order of arrest was granted, in a certain action in which this applicant was the defendant and one Stephenson the plaintiff; the order of arrest therein was vacated. Judgment was subsequently recovered by Hanson against the surety Kolter, for the sum of $281.65, damages and costs, sustained by reason of his arrest.

<p> Witt—Evidence of due execution—Subscribing witnesses need not subscribe in each other’s presence. </p> <p>Where the evidence showed that deceased signed the paper propounded, and acknowledged the signature to be his, declared the instrument to be his last will and testament, and requested the witness G. to become a witness thereto; that subsequently he requested the witness F. to sign “as a witness,” but, according to his testimony, without either acknowledging the signature or declaring it to be his will; the testator is shown to be familiar with the requisite formalities attending the execution of a will; the attestation clause being faulty in that it omits to state that the witness signed at the request of the testator:</p> <p>Held, that it is not necessary for the subscribing witnesses to a will to subscribe as witnesses in each other’s presence.</p> <p>The testimony of a subscribing witness who signed the will in the presence of the testator alone, is not conclusive on the question of due execution, when it appears that it is to his interest that the will should be set aside. Under such circumstances, where the other testimony is favorable to due execution, and it is shown that the testator knew the contents of his will, and knew the formalities required for due execution, and there-is an attestation clause alleging due publication, the will may be admitted to probate.</p>

<p>Practice as to moving a cause for trial — When party, other than the one who noticed it for trial, may move it— Code of Civil Procedure, section 977.</p> <p>Though under ordinary circumstances the party only who has noticed a cause for trial can move it for that purpose, yet when a cause has been specially set down for the day on which it was moved, and no objection was made to the right of the defendant to move it, and the plaintiff’s counsel, after the jury was drawn, simply refused to proceed with the trial, the court was justified in directing a dismissal of the complaint.</p>

<p> Code of Civil Procedure, section 1268—When bankrupt not entitled to discharge of judgment under this section. </p> <p>Under section 5117 of the Revised Statutes of the United States, which provides that no debt created by the fraud of the bankrupt shall he discharged by proceedings in bankruptcy,” those claims which have been incurred by any false representations or pretense of the bankrupt, or purchases made with the preconceived intent of not paying for them, are fraudulently contracted, and the debts thus arising are not . discharged.</p> <p>The nature of the action and character of the claim is not to he determined by the demand of the complaint, for the reason that prior to the amendment of 1879 (adding subdivision 4 to section 549 of the Code of Civil Procedure), the complaint should not contain the allegations of 'fraud; but when the affidavits upon which the order of arrest was .granted discloses, a claim incurred by the false representations of the ’bankrupt, it is. not discharged by the proceedings in bankruptcy.</p>

<p>Motion by defendant for a new trial.</p>

This is an appeal from an interlocutory judgment (and order) overruling a demurrer to the complaint. The complaint alleges the incorporation of the defendant under the laws of this state.

<p>Jurisdiction of the commissioners of estimate and assessment for opening the park-way—Laws of 1874, chap. 604 — Waiver by acquiescence.</p> <p>A party may waive a statutory and even a constitutional provision made for his benefit, and having once done so, he cannot ask for its protection. And so, too, by acquiescence, or failure to present objections, he may waive the question of jurisdiction, arising out of the interpretation or construction of a statute.</p> <p>Where it appeared that these commissioners of estimate and assessment were appointed after the posting of notices and advertising according to law, without any opposition having been made by any interested property owner, and no appeal was ever taken from the order appointing them, and they proceeded in the performance of their duties and followed the law strictly in every respect, and were opposed by the parties now making this motion at every step of their proceedings, until the final confirmation of their report:</p> <p>Held, that the moving parties are now precluded from objecting to the jurisdiction of the commissioners or of the court. It is too late for the parties making this motion to object to the jurisdiction of the court, or to the right of the park commissioners to institute these proceedings.</p>

<p>Claims against a decedent, Resented to admimsirator and admitted to be valid— On whom is burden of proof— Where the objector is merely a creditor, section 829 of Code of Civil Procedure excluding a party interested from testifying does not apply.</p> <p>Upon an application for the sale of the real property of a deceased person for the payment of his debts, it appeared that such debts were largely in excess of the value of the real estate. A creditor objected to the claims of sisters, heirs and survivors of decedent, upon the grounds that the proof of the indebtedness was too indefinite, and because, under the Code, the evidence of these parties concerning conversations or transactions with the decedent should be excluded:.</p> <p>Held, first, that these claims having been presented to the administrator and by him admitted to be valid, the burden of proof is upon the objector.</p> <p>Second. The testimony as to conversations or transactions with the decedent not. being against the administrator or survivor of a deceased person, the objector being merely a creditor, section 829 of the Code, excluding a party interested from testifying “against the executor, administrator or survivor of a deceased person,” &c., does not apply.</p>

<p> Complaint upon promissory note—Answer—When not to be stricken out as sham, or frivolous. </p> <p>Where the complaint was upon a promissory note, and alleged that it was -“made by defendant .to his own order for value, and was indorsed and .delivered to one T., and that T. indorsed and delivered the same before -maturity to D., as plaintiff is informed and verily believes, who thereafter and before maturity sold and delivered the same to plaintiff.’’ And the answer was a denial that the defendant made, indorsed and delivered the note as alleged in the complaint to T. for value, and of any knowledge or information sufficient to form a belief of the allegations of the complaint that said T. before maturity or at any time indorsed and delivered the said note to D.,or that D. sold and delivered the same to plaintiff:</p> <p>Held, that the issues raised by the answer are material and the denials cannot be stricken out as sham. The frivolous character of the answer must be apparent without argument to make it frivolous.</p>

Patrick Carney, his wife and seven children, and Adam Slovitz, detained emigrants who landed on the sixteenth day of July, from the Furnesia, were brought before this court at chambers up,on a writ of habeas corpus, and their discharge asked for.

<p>Assignment—Claims, how proved — Proof of debt in bankruptcy when not a waiver of a creditor's right to share in the dividends of an assigned estate— Power of referee appointed to pass assignee’s account to extend the time in which other claims may be filed.</p> <p>The books of a firm are competent and proper evidence to determine the amount of a claim in favor of one partner against the other, so as to entitle the claimant to share in the dividends of an assigned estate, even though the objections to the claim are made by a creditor of the assignor having no relations to the firm and being a stranger to the transactions set forth in the books.</p> <p>Proof of debt in the bankruptcy of the assignor, without disclosing the lien under the assignment, does not waive the creditor’s right to the dividend.</p> <p>Ansonia Brass and Copper Co. agt. Babbitt (74 N. Y., 395), distinguished, and sections 5075 and 5105 of the United States Revised Statutes construed.</p> <p>In any event, to entitle a creditor to claim a waiver by his co-creditor to a dividend out of the assigned estate, by reason of the latter’s proof of debt in bankruptcy, it must affirmatively appear that the proving creditor had knowledge of his lien under the assignment.</p> <p>A referee appointed to pass the assignee’s - accounts, and to hear and determine the issues raised by objections- to > certain claims, has the power to extend the time- in which other claims may be filed, so as to entitle them to a distributive share in the assets.</p>

<p>Application for a stay of proceedings pending appeal from judge Van Brunt, dismissing the writ of habeas corpus in the case of Adam Slovitz, one of the pauper immigrants detained by the commissioners of emigration (See ante, 356).</p>

<p>Motion for an injunction.</p>

<p>Alimony— When payment of, to he enforced by punishment for contempt — Code of Civil Procedure, secs. 1772, 1773, 2286.</p> <p>An order adjudging lire defendant in contempt and directing Ms commitment for failure to pay alimony awarded by the judgment in a divore action to the plaintiff, need not contain an adjudication that paying of the alimony could not be enforced by means of security or the sequestration of his property.</p> <p>Though the court is authorized to relieve a party from further imprisonment, when it appears he is unable to comply with the direction contained in the judgment, yet when such inability arises from Ms: having contracted a second marriage in defiance of the prohibition contained in the judgment recovered against him by the plaintiff, entitled to no favorable consideration.</p>

<p>New York (city of)—Public school teachers—Sow and, by whom may be removed—What is a removal — Mandamus the proper remedy where teacher is improperly removed.</p> <p>A teacher in a public school in New York city cannot be removed by the trustees of the ward in which such school is situated, except by the approval in writing of a majority of the inspectors of the district, and the approval on appeal of the hoard of education; and a transfer involving loss of rank and pay is a removal from the position occupied within the meaning of the statute.</p> <p>A teapher so attempted to he removed has a remedy by mandamus to compel the principal of the school and the trustees of the ward, respectively, the former to place such teacher’s name upon the monthly pay rolls, apd the latter to certify said pay rolls to the inspectors of the district</p>

Motion to vacate an attachment. An attachment was granted against the defendants osl affidavits showing a canse of action on contract, and that the defendants were residents of. Chicago, 111. The defendant Anderson Fowler, on his own behalf, moved to vacate the attachment so far as it affected him, on affidavits showing that he had a fixed domicile in the city of Hew York where he lived with his family.

Motion on behalf of Warren Currier and James F. Sutton, owners of bonds issued by the railway company, and Denis O’Brien, attorney general, to vacate an order appointing Theodore Houston and Horace Bussell receivers of the railway company, and for the appointment of one or more receivers.

<p> Attachment—Facts which entitle party to—When will not be vacated. </p> <p>Where shortly before an assignment by a firm for the benefit of creditors individual members of the said firm made drafts of moneys belonging to it much larger than they had been in the habit of making at any one time or during any one month, net for the purpose of meeting obligations of the firm, or even for the payment of individual debts, such drafts are a fraud upon creditors justifying the issuance of attachment against the firm’s property; and though the property thus taken be afterwards returned, the attachment should not for that reason be discharged.</p>

<p>Appeal from two orders granted by Mr. justice Brown, one dated February 28, 1883, denying a motion made by defendant to set aside a judgment entered against him December 14, 1882 ; the other, dated March 6, 1883, setting aside the same judgment on substantially the same state of facts.</p> <p>The plaintiff appeals from the last named order and the defendant from the first. The facts are substantially as follows : On the 14th day of December, 1882, the plaintiff entered up a judgment against the defendant in Kings county for $3,161.44 by default. The judgment-roll showed that the summons in the action had been served on the defendant by one Samuel B. Rogers, his affidavit of service appearing on the back of said summons. The defendant denied that he had ever béen served with a summons in the action, and claimed that the affidavit of Eogers in that behalf was wholly false and made a motion to set aside the judgment for that reason. The affidavits were conflicting and the court ordered a reference to take proof. The referee reported the evidence, with his opinion that there had been no service of the summons on the defendant in the action. Motion to confirm the referee’s report and to set aside the judgment was made at special term, based on the affidavits and the evidence taken and on said report. Said motion was denied by the court, with ten dollars costs of opposing same and all disbursements. The costs and disbursements adjudged against defendant, and which the order denying said motion required him to pay, amounted to seventy-five dollars. The court held that said summons had been duly served on the defendant, and that his evidence in denial thereof was wholly false. The order denying said motion contained the provision that “ the defendant be allowed to apply to the court upon such other papers and affidavits'as he may be advised to set aside said judgment and to defend.” The defendant duly appealed from said order to the general term, and without paying or tendering the costs, immediately renewed the motion upon precisely the same state of facts and upon the same papers which were the basis of the former motion, and upon the additional affidavit of the defendant in which he charged plaintiff with various crimes and offenses, in substance, that “plaintiff had been arrested by various persons in Lockhaven, Pennsylvania, and in Boston, Massachusets,” that he had been “ arrested for larceny, false pretenses, embezzlement, forgery,” &c. Except these vague charges made by the defendant himself, on his information and belief against the character of the plaintiff, no new or additional facts were presented in the second motion not heard and considered in the first. On the argument of the motion various preliminary objections were made by the plaintiff’s counsel:</p> <p>1. That the affidavit of merits was defective and did not conform to the rules of practice.</p> <p>2. That defendant had not paid or tendered the costs of the former motion and was stayed till such payment.</p> <p>3. That said motion being a non-enumerated motion must, under the rules of the supreme court, be noticed for the first day of the term, whereas this motion had been noticed for the second day of the term.</p> <p>4. That the order to show cause did not state any reason for requiring a shorter notice than eight days.</p> <p>5. That no irregularities were specified in the moving affidavits, or in the order to show cause why the judgment should be set aside, and no reason or excuse given for opening the default.</p> <p>6. That said motion was a renewal- motion on the same state of facts as presented in the former motion already heard and denied by the court; that the denial of the former motion was a bar to the second or renewal motion, and conclusive of the facts here presented.</p> <p>7- That the allegations in the moving affidavit of the defendant in regard to plaintiff’s character, constituting the “ new or additional facts,” were incompetent, immaterial and inadmissible for any purpose; that they were scandalous, and the court was asked to suppress them and that the same be stricken from the record.</p> <p>The objections were severally overruled, and the court granted an order setting aside the judgment on the sole ground that the statements in regard to plaintiff’s character in defendant’s additional affidavit were “ new and additional facts ” not considered in the former motion, thus clearly overruling a long line of decisions of general terms and of the court of appeals of this state.</p>

The relator was arrested on May 21, 1884, upon an order granted by Mr. justice Donohue in a civil suit for conversion, •instituted in the supreme court by the Preston Banking Company of England. While in custody under this order, which fixed his hail at $70,000, he was taken to the office of a United States commissioner, before whom proceedings were begun against him for his extradition to Great Britain upon a charge of forgery.

A receiver appointed in supplementary proceedings applied for an order to compel the defendant to deliver to him the possession of a house and lot occupied by the defendant. The defendant had been the owner and occupant of the premises for many months prior to and since the recovery of plaintiff’s jadgment, and said judgment was, of course, a lien thereon.

<p>Appeal from an order of the special term taxing sheriff’s bill on execution.</p>

<p>Application to the court to tax costs in a bastardy case.</p>

<p>Surrogates— Their power over sales of real estate ordered by them.</p> <p>Surrogates have power to compel a purchaser of real estate to take or to discharge a purchaser from taking.</p>

<p>Motion for a new trial.</p>

<p>Sailroads — Seal estate taken for railroad purposes — When use for which land is taken not limited in time — What time such use shall continue within the discretion of the legislature.</p> <p>When the Tonawanda railroad, extending from Rochester to Attica, was organized, it obtained a charter extending over a period of fifty years. Under this charter and by virtue of the statute, it condemned and took a strip of land running through the plaintiff’s farm. Subsequently the road was consolidated witli several others, and became the New York Central and Hudson River road, and has ever since continued t.o use this strip as a part of its roadway. The charter of the Hew York Central and Hudson River Railroad Company was granted for half a century. The original charter of the Tonawanda railroad has expired and plaintiff brings suit to eject the railroad company and recover possession of the land, claiming that with the expiration of the charter the land no longer belonged to the railroad company:</p> <p>Held, that the public use for which the lands were originally taken is still continued, and such use was not limited in time. Although the corpo. ration was at first created only for the term of fifty years, yet the legislature reserved to itself the right at any time to alter, modify or repeal the act.</p> <p>Held, further, that whilst the plaintiff is the owner in fee of the lands in question, it is subject to a public use by the defendant fo.r railroad purposes, and that the time that the use shall continue is within the discretion of the legislature, and that as the legislature has seen fit to authorize its consolidation with other corporations and to extend its corporate term for the period of five hundred years, such use has not as yet ceased and determined, and consequently the plaintiff cannot recover.</p>

<p>Answer—Denial in, when insufficient— Code of Civil Procedure, section 500.</p> <p>A denial in an answer as follows: “Defendant denies each and every allegation, averment and statement of the complaint, except such as are hereinafter admitted, qualified and explained,” is bad whenever the • objection is raised by demurrer or special motion.</p>

Tilden to open decrees made upon accountings of the executors of the estate and for a rehearing of such accountings so far as they affect the rights of the petitioner.

<p>Supplemental complaint—When will be allowed— Code of Civil Procedure, section 544.</p> <p>Where plaintiff’s cause of action is upon a promissory note made by defendant to plaintiff’s order, and defendant admits the making of the note, but alleges by way of avoidance that since the making and delivery of said note he made and delivered a certain other note as a renewal of the note sued on¡ and that the latter note was outstanding and not matured, the plaintiff should have leave by supplemental complaint to allege the fact that the note pleaded in defendant’s answer as payment of the note in suit was not paid and was in plaintiff’s possession, and to pray that he may tender the same on the trial.</p>

<p>Street obstructions — What are, and when a public nuisance—When maybe restrained at the suit of an individual—Answer — Form of denial bad.</p> <p>Where defendant in his answer denies ‘ ‘ specifically each and every allegation of the complaint, except those hereinafter admitted, qualified or explained: ”</p> <p>Held, that this form of denial is bad and the allegations of the complaint must be held to be admitted by the defendant.</p> <p>Any unauthorized continuous obstruction of a public street is a public nuisance for the reason that the public are entitled to an unobstructed passage upon the streets and sidewalks of the city.</p> <p>The placing of skids across the sidewalk in front of a party’s premises is a great inconvenience to the public and may be restrained at the suit of an individual who has sustained a private injury thereby.</p>

Motion on behalf of Samuel B. Hamburger, receiver in supplementary proceedings, to compel Cumberland G. White, one of the defendants and judgment debtors, to transfer to said receiver his seat or membership in the Hew York Stock Exchange, and for such other relief as may be just.

<p>Motion by plaintiff for allowance of costs after recovery against the defendants.</p>

<p>Taxes and assessments — rule which assessors must observe in valuing property — Oath to an assessmenfovll which will render an assessment void,.</p> <p>Where the statutes provided that assessors in valuing property must assess it “ at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor,” and upon the completion of their roll they are required to swear that they have observed that rule in the valuation of all real estate.</p> <p>Where a party seeks by certiorari to reduce an assessment upon his property, and in return to the writ the assessors do not pretend that they have obeyed and followed these provisions of the statutes, but they declare that “the valuation made by them of the property is just and fair, and at as fair a rate and just proportion as that of other property assessed by them, according to the best of their knowledge and belief:"</p> <p>Held, that, as they have not certified to the court that they have followed the statute, their judgment should have no influence upon the decision.</p> <p>In determining the value of bridge property in the mode which the statute directs, the true criterion of such value must be its earning capacity, not its original cost.</p>

The relator made complaint against her hnsband, Conrad Sherrer, before Andrew Walsh, a police justice of Brooklyn, under section 899, subdivision 1, of the Code of Criminal Procedure, charging him with being a disorderly person in having abandoned his wife. On the hearing it appeared in evidence that the relator had left her husband’s house.

<p>Attachments — Affidavits of fraud which arre insufficient to sustain an attachment— Acts which would not amount to fraud.</p> <p>Where the affidavits upon which attachments were granted failed to show affirmatively that the debts upon which the suits were brought, and for which the attachments were issued,' were due at the time of the commencement of the suits and of the issuing of the attachments, but it appeared that the general terms of the sale of goods by plaintiffs to customers were'" five per cent off, cash in thirty days, or two per cent by customers giving their note at four months in settlement of the bilis," and the notes had not been given by defendants:</p> <p>Held, that the failure to pay cash in thirty days would not have the effect. to make the "debts due at that time, but would operate as an election on the part of the buyers to take the credit of four months, and mere neglect to give the notes, without refusal of application for them, would not give the right to immediate action.</p> <p>A memorandum, as part of the bills of sale showing that the sales were at four months, should control on the question of terms instead of the usage of plaintiffs or entries in their hooks of sale.</p> <p>Where it was claimed that debts for goods sold on credit had become presently due because the sales were procured on fraudulent representations, and the only representations alleged were those made to sellers by mercantile agencies of statements made to these agencies by defendants . as to their condition generally:</p> <p>Held, tnat it must he clearly shown that the accused buyer made these statements to the agency with fraudulent intent to use such agency as an instrument in accomplishing a fraud upon his vendor or some other seller.</p> <p>The payment shortly before an assignment for the benefit of creditors, and in contemplation of it, of a debt to a former partner, if actual and honest would be no fraud per se, nor would the drawing out by defendants, respectively, considerable sums of money from the firm before the assignment and in contemplation of it, if done under a mistake as to their rights and not with intent to defraud creditors, or with a design to conceal property with the purpose of defrauding them, be such a fraudulent disposition of property as to entitle a simple creditor to attachment under the provisions of the Code.</p>

<p>New York (city of)—New York and Brooklyn bridge — Bight of, to stretch platform, over Chatham and Centre streets and to erect pillars in said streets to support same — Mandamus—When will issue to compel commissioner of public works to grant permit to bridge company to enter upon such streets and take up pavements, eta.— Terminus of bridge — Maps filed from time to time does not affect.</p> <p>The authority to locate a railroad or other structure at a certain place does not limit the location to the extreme bounds of that place, but carries with it the authority to locate the same within, such bounds.</p> <p>On a motion for a peremptory mandamus to the commissioner of public works and the department of parks “ commanding them forthwith to issue and deliver to the board of trustees of the New York and Brooklyn bridge, a permit to enter upon Chatham and Centre streets in the city of New Y ork, near the Hall of Records, and take up the pavements of said streets, and lay foundations for and erect thereupon the structure proposed by the said trustees to complete the said bridge, as shown on a map filed by said trustees in the register’s office in New York city, on the 10th of April, 1884; there were two other maps filed, one in 1874 and one in 1877:</p> <p>3eld, first, that the bridge trustees have the legal right to do precisely what they propose to do, as indicated by the map of 1884 (i. e., to occupy Chatham and Centre streets), and that they are not precluded by the filing of the maps of 1874 and 1877, from erecting such a structure as is shown on the map or diagram filed in 1884. The maps filed from time, to time do not and could not affect the termini.</p> <p>Second. The location of the New York terminus at the west side of Centre street is authorized.</p> <p>Third. That the provisions of the act which declare that the said bridge “shall not obstruct any street which it shall cross, but that such street shall be spanned by a suitable arch or suspended platform as shall give suitable height for the passage under the same, for all purposes of public travel and transportation,” does not refer to the approach to, or the terminus of, the bridge.</p> <p>Fourth. That as it is the legal right of the trustees to enter upon the performance of the work contemplated by them, it is the public duty of the commissioner of public works and the park commissioners to issue the permits asked for and to license the excavations which are necessary to enable the former to prosecute their work, a-nd a mandamus is the proper remedy to compel them so to do.</p>

<p>Appeal from order denying motion to set aside order for-examination of the defendants.</p>

<p>Assessment and taxation—When court precluded from vacating assessment in city of New York—Laws of 1880, chapter 550, section 12—Consolidation Act, section 903.</p> <p>If the ordinance for the pavement of a street is pasr.id without authority of law, the^execution of, the work can he prevented by appropriate application to the court. A party not having availed himself of»his legal rights in that respect is precluded by section 903 of the 'Consolidation Act from asking to have the assessment vacated.</p> <p>Where there is nothing by which the court can determine the extent to which an assessment has been increased by reason of fraud or substantial error; under section 903 of the Consolidation Act it can neither vacate nor reduce an assessment.</p>

<p>Attachment— When sjwwU not he vacated because part of claim sued on was not due at time of commencement of action.</p> <p>Where it appears by the papers that the claim sued on was fraudulently contracted, the whole debt becomes due by operation of law, and it is error in such a case to vacate an attachment because the term of credit • had not expired.</p>

<p>Appeal from order made at special term denying an application for a preference on the trial calendar.</p>

<p>Supplementary proceedings — Examination of debtors who have made an assignment for the benefit of creditors.not to be restricted to property acquired since thie assignment—Code of Civil Procedure, sections 2435, 2436, 2460.</p> <p>The examination of debtors in supplementary proceedings, who had made .an.assignment for the benefit of creditors should not be restricted to ¡property acquired by them since the assignment, but may cover an inquiry “ concerning their property,” whether equitable or legal, including their property transferred to another with the apparent Intent to hinder, delay or defraud their creditors.</p>

<p>Appeal from an order allowing and accepting the guaranty of the Fidelity and Casualty Company of Hew Yorlc as bail upon an undertaking given on an appeal from a judgment to the court of appeals.</p>

<p>Will— Construction of — Bxecutors — When not precluded from enforcing a claim to statutory commissions.</p> <p>A testator by his will appointed A. B. and C. his executors. The will contained a provision in substance, as follows: “It is my request that A. B. and C. will consent to act as executors, and that each of them other than A. do also take and receive the full rate of commissions provided by law for each executor, intending thus to provide suitable compensation for tlieiPservices in and attention to the duties herein devolved upon them.”</p> <p>Held, that A. was not precluded by the language'above quoted from enforc- ■ ing a claim to be awarded the statutory commissions, even though the statutory commissions awardable under the law in force when the will was executed were precisely what the testator provided for each of his executors other than A,</p>

<p>AttacTvment—Fraudulent disposition of property — Facts and circumstances • to ié considered as to fraudulent intent.</p> <p>On October 16, 1884, defendants claimed to be solvent, and to have a surplus of from $10,000 to $30,000. The following day they executed a bill of sale of their entire stock in trade, fixtures, &c., to one of their wives for a paid consideration of one dollar, and a past due debt of $7,500. On the eighteenth of October they announced their suspension and. insolvency to their creditors, a number of whom procured attachments. On the twentieth of October they made a general assignment:</p> <p>Bekl, that although as an isolated fact the sale established no basis for an attachment, yet, in view of the circumstances, the transfer was not a bona fide one, and was made with no honest purpose, and the attachments must be sustained.</p> <p>Also, held,, that the fact that the sale was not consummated creates no difference in law.</p>