Volume 88 — New York Reports

This action was brought by plaintiffs, as trustees, to foreclose said mortgage. A referee was appointed to ascertain the amount due on account of the bonds, and the nature and extent of the interest of the bondholders. The orders of the Special Term upon the •coming in of the report of the General Term, which reversed and modified portions thereof, were reversed by this court and the case remanded to the Special Term for a rehearing.

<p>Appeal from judgment of the General Term of the Supreme Oourt, in the second judicial department, entered upon an order made December 14, 1880, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Mem. of decision below, 23 Hun, 279.)</p> <p>This action was brought to recover damages for the alleged negligence of defendant causing the death of Peter J. Smedis, plaintiff’s intestate.</p> <p>The facts are sufficiently set forth in the opinion.</p> <p>There being no witnesses of the accident, to entitle the plaintiff to recover, she was bound to show affirmatively that the deceased exercised proper care for his own safety, and if the circumstances point just as much to negligence on his part as to its absence, or point in neither direction, she cannot recover. (Cordell v. Hudson R. R. R. Co., 75 N. Y. 330; Miller v. N. Y. C. H. R. R. R. Co., 13 Wkly. Dig. 145; Hart v. Hudson River Bridge Co., 84 N. Y. 56; Riceman v. Havemeyer, id. 647; Matze v. N. Y. C. & H. R. R. R. Co., 1 Hun, 417 ; Reynolds v. N. Y. & H. R. R. Co., 58 N. Y. 248; Crippen v. Id., 40 id. 34; Bronk v. N. Y. & N. H. R. R. Co., 5 Daly, 454; Haight v. N. Y. C. R. R. Co., 7 Lans. 11; Ernst v. H. R. R. Co., 24 How. Pr. 110 ; Wilds v. Id., 29 N. Y. 315; Wilcox v. Rome, W. & O. R. R. Co., 39 id. 358; Gonzales v. N. Y. & H. R., 38 id. 440; Weber v. N. Y. C. & H R. R. R. Co., 58 id. 451; Salter v. U. & B. R. R. Co., 75 id. 273; Cordell v. N. Y. C. & H. R. R. R. Co., id. 430; Cook v. N. Y. C. R. R. Co., 1 Abb. Ct. of App. Dec. 432; Kellog v. N. Y. C. & H. R. R. R. Co., 79 id. 72.) It was error for the court to say to the jury that if plaintiff was on the track, they were to judge whether the company took all the precautions the law required, to enable them to guard against any accident to him, for such a proposition assumes that some duty was required of defendant which it omitted to perform. (Sewel v. N. Y. C. & H. R. R. R. Co., 10 N. Y. Wkly. Dig. 224; Culhame v. N. Y. C. & H. R. R. R. Co., 60 id. 133; Chapman v. Id., 14 Hun, 484; Dougan v. C. T. Co., 56 N. Y. 1; Sutton v. N. Y. C. & H. R. R. R. Co., 66 id. 243.)</p> <p>Defendant was guilty of negligence in not ringing the bell or blowing the whistle, and in not having a light on the front of the train. (Chap. 282, Laws of 1854; Johnson’s Case, 20 N. Y. 73; Cheney’s Case, 16 Hun, 415; Steinway’s Case, 43 N. Y. 126; Brown’s Case, 34 id. 404; Weber’s Case, 58 id. 458; 45 id. 850; Kissinger’s Case, 56 id. 543 ; McGovern’s Case, 67 id. 423; Eaton’s Case, Sup. Ct. Mass., 10 Rep. 52.) The question whether defendant did every thing required of it by law before crossing Liberty avenue was an issue for the jury, to be decided by them upon contradictory testimony. (Masterson’s Case, 10 Rep. 783; Payne’s Case, 83 N. Y. 572; Shaw v. Jewett, 13 N. Y. Weekly Dig. 80 ; Cordell’s Case, 75 N. Y. 333.) To justify a nonsuit the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts would have warranted a contrary conclusion, and that a verdict of the jury the other way would have been set aside as against the evidence. (Stackus' Case, 79 N. Y. 464-6,467, 469; Casey’s Case, 78 id. 518; Payne v. T. & B. R. R. Co., 83 id. 572; Terry v. Jewett;78 id. 338; Maginnis' Case, 52 id. 215; Powell’s Case, 10 N. Y. Weekly Dig. 503; Day v. Flushing R. R., 6 id. 2; Paynton’s Case, 11 id. 177; Cook’s Case, 1 Abb. Ct. App. Dec. 432; Waldele’s Case, 19 Hun, 69; Weber’s Case, 58 N. Y. 457.) Proof that plaintiff was not negligent may appear from circumstances attending the injury. (Warner’s Case, 44 N. Y. 466; K. P. R. R. Co. v. Richardson, 12 Rep. 492; Imp. Co. v. Stead, 95 U. S. 165; L. C. & L. R. Co. v. Goetz, 12 Rep. 616; Thomas’ Case, 12 id. 739; Schofield’s Case, U. S. C. C., Miss., 12 Rep. 548; Hart v. H. R. B. Co., 84 N. Y. 56.) The deceased here was not held to so strict an exercise of care and caution, because a train was coming from an opposite direction and his attention was attracted to it. (Magrath’s Case, 32 Barb. 147; Brown’s Case. 32 N. Y. 597; McGovern’s Case, 67 id. 423; Poak’s Case, 75 id. 321; Kellogg’s Case, 78 id.) Contributory negligence is an affirmative defense, and where plaintiff’s proof does not show such negligence, or there is not a total lack of proof from which the jury may determine the question, the onus probcmdi is upon the defendant to show such contributory negligence. (Hackford’s Case, 6 Lans. 381; Jackson’s Case, 4 Rep. 496.)</p>

and for the county of Yew York, made April 4, 1881, which reversed a judgment in favor of defendant, entered upon the report of referee. This action was brought by plaintiff, as executor of the last will and testament of Effingham Lawrence, deceased, to recover the proceeds of' a draft belonging to his estate, issued out of the treasury of the United States and collected by the defendant, an attorney. The material facts are set forth in the opinion.

(It is reported upon a former appeal sub nom. Robinson v. Chittenden, 69 N. Y. 525.) The nature of the action and the material facts are stated in the opinion.

preme Conrt, in the fourth judicial department, entered upon an order made April 6, 1880, which affirmed a judgment in favor of plaintiff entered upon an order directing judgment against defendants Whiteside and Warren on the ground of the frivolousness of their demurrer to the complaint.

This action was brought to recover damages for alleged negligence causing the death of Frederick E. Salter, plaintiff’s intestate. The case has been twice to this court before. (See Hem. of decision on first appeal, 59 FT. T. 631, and report of decision on second appeal, 75 id. 273.) The accident occurred in the village of Carthage. The deceased was engaged in drawing logs to a saw-mill, having to cross defendant’s track, which runs north and south through the village.

(Reported below, 23 Hun, 237.) The substance of the pleadings is given in the opinion. The directors of a bank are trustees and the stockholders cestuis que trust, and the latter, in case a trustee is unfaithful, have a remedy independently of any statute or act of Congress. (2 Kent’s Com. [12th ed.], 280 and note 1; A. & A. on Corp., § 310; Robinson v. Smith, 3 Paige, 233; Scott v. De Peyster, 1 Edw.

This action was upon a bond executed by defendant to one Bitter, and by him assigned to the plaintiff. Two defenses were interposed, one usury, the other that plaintiff, who is an attorney, bought the bond for the purpose of bringing suit thereon.

The nature of the action and the material facts are stated in the opinion. Held: was untenable. (Bunn v. Vaughan, 3 Keyes, 345; S. C., 5 Abb. Pr. [N. S.] 269; Emerson v. Bleakley, id. 350; Boone v. Citizens’ Bk., 84 N. Y. 83, 87.) The defense attempted under the statute against champerty was.wholly without foundation. (Sheridan v. The Mayor, 68 N. Y. 30; Rasquin v. The Knickerbocker Stage Co., 12 Abb.

This was an action upon a promissory note for the sum of $1,000, made by defendant Howard, and indorsed by the other defendants. Eneas, the last indorser, -transferred it to William Lintz, plaintiff’s intestate, under the circumstances set forth in the'opinion. A valuable consideration must be parted with to protect the holder of a negotiable instrument against equities existing between original parties. (McQuade v. Irwin, 7 J. & S. 398; Bay v. Coddington, 5 Johns.

' The material facts are stated in the opinion. The court had power to direct a revaluation of the policies- of the policy-holders who had died. (In re People by Atty.Genl. v. Security L. Ins. & An. Co., 79 N. Y. 267, 272; 78 id. 114, 115; Atty.-Genl. v. N. Am. L. Ins. Co., 82 id. 194, 195; Guy v. Globe Ins. Co., Ins. L. J., June, 1880, p. 470; In re Newland, 9 Nat. Bk. Reg. 62; U. S. R. S. 984; Holdrich's Case, L. R., 14 Eq. Cas. 82, 84; L. R., 9 Eq.

<p>Insanity as a Defense.—Test of Criminal Responsibility.— Burden of Proof.</p> <p>The true test of ■ criminal responsibility where the defense of insanity is interposed to an indictment is, whether the accused had sufficient reason to know the nature and Quality of his act., and whether he had sufficient reason to know right from wrong.</p> <p>In his charge the recorder refused to add to this proposition the further one, “and whether or not he (the accused) had sufficient power of control to govern his actions.” Held, that the refusal was proper, as the recorder had charged that the accused must have sufficient control of his mental faculties to form a criminal intent, before he .can be held responsible for a criminal act, which was as far as the court should go on the subject of control.</p> <p>When the judge charges in the language of the statute on a point, it is not error to refuse to adopt in his charge the phraseology of counsel on. the same point.</p> <p>If no evidence is given on the subject of the mental condition of the accused, the presumption is that he is sane. Where evidence on the subject is offered by the defense, the prosecutor may produce answering testimony, but he must satisfy the jury on the whole evidence, that the prisoner was responsible; for the affirmative of the issue tendered by the indictment remains with the prosecution to the end of the trial (Brotherton 8. People, 75 IV, T. 159; 0’0onnell8. People, 87 IV T. 377).</p> <p>The defense of insanity should not be sustained on vague and shadowy testimony, or mere conjecture. There should be clear and substantial evidence of insanity; but if there is upon the whole evidence in the case any reasonable doubt, the accused is entitled to the benefit of that doubt and to an acquittal.</p> <p>Where the court properly submits to the jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to subdivide it, and charge separately as to each of the elements necessary to constitute the crime that it must be established beyond a reasonable doubt.</p>

(Deported below, 23 Hun, 223.) This action was Drought to obtain a construction of the will of Hervey Edward, bate of Fayetteville, Onondaga county, who died November 30, i The provisions of the will in question are as follows: “ Fifth.

<p>Appeal by certain stockholders of the defendant, from a portion of an order of the General Term of the Supreme Court, in the fourth judicial department, made October 28, 1881.</p> <p>The order of General Term, the portion appealed from, and the material facts are set forth in the opinion.</p> <p>The appointment of the receiver was a final order and operated as a virtual dissolution of the corporation. (2 R. S. 463, art. 2, tit. 4, chap. 8, pt. 3, §§ 36, 37; Verplanck v. Ins. Co., 2 Paige, 348, 352; Mann v. Pentz, 3 N. Y. 415; 4 Paige, 225; 6 id. 503; 9 id. 15; 10 id. 382; Curtis v. Leavitt, 15 N. Y. 43; Gillet v. Moody, 3 id. 479; Edwards on Receivers, 5, 247, 273, 274; Van Wagenen v. Clark, 22 Hun, 497; Slee v. Bloom, 19 Johns. 458.) The order appealed from involved a substantial right and did not rest in discretion, and was appealable. (Howard v. Mills, 53 N. Y. 322; People v. City of Syracuse, 78 id. 56, 61.) The receivership was a statutory and final trust, and the provisions of the statutes required the performance of the trust. (Edwards on Receivers, 247; 2 R. S. 463, §§ 36, 37; id. 367-369 ; Ferry v. Central B'k, 15 How. Pr. 445; Mann v. Pentz, 36 N. Y. 415; Huguenot B'k v. Studwell, 74 id. 62; Van Wagenen v. Clark, 22 Hun, 497; 38 N. Y. 178; 69 id. 470.)</p> <p>Neither provision of the order appealed from is appeable, both being discretionary with the Supreme Court. (Miannay v. Blogg, 41 N. Y. 521; Benley v. Waterman, 78 id. 623; People v. Northern R. R. Co., 42 id. 217, 231-2; Enos v. Thomas and Hunter, 5 How. Pr. 359. Since the act of 1870 (chap. 151), prohibiting the appointment of a receiver except in a civil action, any receiver appointed in advance of a judgment in the action can be but a temporary receiver. (Kincade v. Dwinelle, 59 N. Y. 548, 552; Perry v. Bank of Central New York, 15 How. Pr. 445, 459; affirmed, 9 Abb. Pr. 101; Angel v. Silsbury, 19 How. Pr. 48, 50.) The temporary stay is discretionary. (People v. Northern R. R. Co., 42 N. Y. 217, 231-2; Enos v. Thomas et al., 5 How. Pr. 359; Miannay v. Blogg, 41 N. Y. 521.) The whole matter of the appointment of temporary receivers, whether and' when they shall sell, and of the control over their sales, is discretionary with the Supreme Court. The receiver is merely the creature of the court. (Turner v. Crichton, 53 N. Y. 641; Fellows v. Hermans, 13 Abb. [N. S.] 1; Verplanck v. Caines, 1 Johns. Ch. 57; Crane v. Stiger, 58 N. Y. 625; Hale v. Clauson, 60 id. 339; 2 Daniell’s Oh. Pr. 1715-16; Chapman v. Hammersley, 4 W. R. 173; Wardell v. Leavenworth, 3 Edw. Ch. 244; Crane v. Ford, Hopk. 114.)</p>

The material facts appear in the opinion. The plaintiff in error was damnified by the transfer of the indictment from the Court of General Sessions to the Oyer and Terminer, for the reason that this court and the Court of Appeals on writ of error could review the facts as well as the law.

The material facts are stated in the opinion. A party may have a choice of remedies upon the same facts. (Clarke v. Pinney, 6 Cow 298; Bk. of Orange v. Brown, 3 Wend. 158; Van Hook v. Whitlock, 3 Paige, 409; Talbot v. Bk. of Rochester, 1 Hill, 295; Sturtevant v. Waterbury, 1 Hall, 449; Comstock v. Hier, 73 N. Y. 269; Fisher v. Hepburn, 48 id. 41; People v. Kelly, 1 Abb.

This action was brought by plaintiff “ as receiver for the creditors and stockholders of the late Dodge & Stevenson Manufacturing Company,” against defendant, a stockholder of said company, to recover an assessment of seventy-five per cent of the amount of his stock, alleged in the complaint to have been made by order of the court.

The relator is a resident of the city of Troy, cashier of a National banking institution there located, named “ The First National Bank of Troy,” and owner of two hundred and twenty-one shares of the capital stock of such bank, which the assessors, in the imposition of a tax upon him, valued at $65.53 per share, over and above the value of the real estate owned by the bank.

This action was brought to recover damages for the alleged negligence of defendant causing the death of Francis Murphy, plaintiff’s intestate. On a question of negligence arising upon a nonsuit, all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which he had a right to ask from the jury, are to be conceded to him. (Cook v. N. Y. C. R. R. Co., 1 Abb. Ct. of App.

preme Court, in the third judicial department, in favor of defendant Mary H. Wisner, entered upon an order reversing a judgment of Special Term, and directing a dismissal of the complaint, with costs against plaintiff personally.

(Reported below, 15 J. & S., 250.) This action is brought by the plaintiff, ás administrator of Mary Ann Hogan, against the defendant, as administratrix, with the will annexed, of Daniel Curtin, deceased; to procure a judgment establishing the right of the plaintiff, as administrator, to a legacy' of $16,000,' given to Mary Ann Curtin, the intestate, by the will of her father, Daniel Curtin, and directing that it be raised out of the real estate of the testator.

(Deported below, 25 Hun, 574.) This action was brought to' obtain a construction of the will of John Walsh, late of the city of Hew York, deceased. The clauses of the will as to which there was any controversy are as follows: “ Thirdly.

(¡Reported below, 23 Hun, 573.)- The nature of the action and the material facts are stated in the opinion. The East river and Long Island sound are arms of the sea, and are within the admiralty and maritime jurisdiction of the United States.

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review judgment entered upon an order made at the May term, 1881, affirming a judgment of the Court of General Sessions of the city and county of ¡New York, convicting the plaintiff in error on an indictment under 2 E. S. 664, § 25.</p> <p>The facts are sufficiently stated in the opinion.</p>

an order made January 31, 1882, which affirmed a judgment convicting the plaintiff in error of the crime of murder in the first degree. The facts material to the questions discussed are stated in the opinion. The court erred in excluding the offer to show that the prisoner had an irascible temper, and was subject to fits of passion from slight causes. (McIntosh’s History of England, vol. 3, p. 36; Jamison’s Logic, p. 37, chap. 4, book 1, § 83; Wharton & Styles’ Physc.

This action was brought to recover damages for alleged negligence, causing the death of Wladislaus Dobiecki, plaintiff’s testator. The defendant was at the time of the accident operating the railroad of the Long Island Bailroad Company, which ran through Atlantic avenue, in the city of Brooklyn. Two kinds of trains were run upon the avenue, express or through trains, which made no stops on the avenue, and trains' for local business, called rapid transit trains.

(Reported below, 25 Hun, 159.) This action was brought to foreclose a mortgage dated December 1, 1874, given by defendant Frank H. Hathorn to John Rowland, plaintiff’s testator, to secure four .promissory notes for the aggregate sum of $6,000, executed by him and defendant, Henry H. Hathorn, dated Rovember 2, 1874, each due three months from date “ with interest.” The defense was usury. The defendant’s evidence upon this subject was uncontradicted.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made September 20, 1881, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial without a jury.</p> <p>The action was commenced on the 24th of August, 1878, by John McKinney as plaintiff, and he dying, was continued by the appellants as his heirs against Dennis Collins, defendant, to recover possession of certain premises situate in the city of Elmira in this State. The plaintiff alleged that he was the owner and possessed thereof on the 1st of January, 1859, that the defendant on the 9th of July, 1860, ousted him therefrom and now unlawfully withholds the same. The defendant admitted that the plaintiff was owner of the premises on the 1st of January, 1859, and justified his entry under title acquired-through sheriff’s sale on execution issued to enforce a judgment recovered on the 22d of June, 1858, in favor of one Purdy, in the. Supreme Court of this State, against John McKinney for the sum of $100.25.</p> <p>Upon the trial of the issues, the court found the facts substantially as above stated, but further found that the judgment in the case of Purdy against McKinney had been obtained upon service of the summons by publication, and that the defendant had never appeared in said action. The court also found that no attachment had been issued in the case, nor had any seizure of property been in any way made, until the property in question was levied upon by virtue of the execution issued upon the judgment; and among other things, as conclusion of law, that the judgment in that action “ was a judgment m rem as to property owned by the defendant at the time of the commencement of the actionj and nothing more; ” that the defendant herein had acquired a good title under the sheriff’s sale and was entitled to judgment, that the complaint should be dismissed.</p> <p>The property of a non-resident is not the subject of sale on execution merely, when there has been no personal service and no appearance. (Penoyer v. Feff, 95 U. S. 714; Warren v. Tiffany, 17 How. 106; Hulbert v. Hope Ins. Co., 4 id. 274; Swift v. Tross, 55 id. 255, 258; Sshwinger v. Hickok, 153 281; Goodkind v. Strickland, 3 Daly, 420; Explanatory note to § 707, Code of Civil Procedure; Hulbart v. Hope Ins. Co., 4 How. 274.) The finding that the judgment obtained against John McKinney “was a judgment in rem as to all the property John McKinney had, at the time the judgment was recovered, within the State ” was error. (Kelburne v. Woodworth, 5 Johns. 73; Pawlings v. Bird's Ex'rs, 13 id. 205; Bricknell v. Fields, 8 Paige, 440; Thomas v. Merchants' B'k, 9 id. 216; Smith v. McCutchen, 28 Mo. 415; Durrance v. Preston, 18 Iowa, 396; Hawkes v. Shape, 27 id. 465; Mitchell v. Gray, 18 id. 123; Code of Civil Procedure, § 707, Throop’s ed. and explanatory note.) Upon such a judgment proceedings supplementary to execution cannot be instituted. (Bartlett v. McNeil, 60 N. Y. 52; Schwinger v. Hickok, 53 id. 281.) The property of a non-resident debtor cannot be subjected to levy and sale under execution, except by a proceeding in rem, and a judgment obtained simply by a publication of a summons cannot be and is not a proceeding in rem. (Penoyer v. Neff, 95 U. S. [5 Otto] 714.) Bo jurisdiction was obtained by the affidavit presented for the order to publish the summons. (Hallet v. Righters, 13 How. 45; Brisbane v. Peabody, 3 id. 107; Kendall v. Washburn, 14 id. 380; Titus v. Relyea, 16 id. 371; Cook v. Farron, 34 Barb. 96; Wortman v. Wortman, 17 Abb. 66; Towsley v. McDonald, 32 Barb. 604; Wells v. Thornton, 45 id. 390; Code, 1858, § 135; Hyatt v. Wagenright, 18 How. 248; Cook v. Farren, 34 Barb. 95; 12 Abb. 359.) The order should have directed the summons and complaint to have been directed to the defendant “ at or near St. Louis, in the State of Missouri.” (Hyatt v. Wagenright, 18 How. 248; Smith v. Wells, 64 N. Y. 600; Hallet v. Righters, 13 How. 46.)</p> <p>It was not necessary to the validity of the judgment and to the issuing of and sale under execution that an attachment in the action should. have been issued and levied. (Code of 1857, § 135; Howard’s : Code, ed. of 1859, § 135, pp. 174, 691-693, p. 431, §389; Supreme Court Buie adopted Aug. 4, 1858, taking effect Oct. 1, 1858, Buie 35; Code [Session Laws of 1851], § 389 ; present Code, § 1370; 18 B. Y. 200; 35 id. 314; 33 Barb. 71.) It is enough that the fact existed that the debtor had property in this State, and that this property was reached by the suit; judgment and execution on attachment was not necessary. (Collier v. DeRevere, 7 Hun, 61, 62.) The execution (as the law then was) was not required to be in any form other than the one issued. (Old Code, §§ 289, 286, 283.) After this lapse of time the omission of the attachment is not available to defeat a purchaser. (13 Johns. 550; 7 id. 556.) The statute as to service by publication should have a reasonable construction, and be viewed with reference to the objects sought to be accomplished. (47 How. 233, 235.) The affidavit and order and affidavit of the mailing are to he taken together, and show the statute substantially complied with. (Van, Wyck v. Hardy, 39 How. 392; Handley v. Quick, 47 id. 233, 235; VanAlstine v. Erwine, 11 N. Y. 341; Smith v. Masten, 47 How. 118.) The court passed upon the sufficiency of the service by publication in giving judgment, and its decision ends it. (5 17. Y. 517; 21 id. 153; 31 Barb. 669; 1 Abb. 17. S. 58; 39 How. 392 ; Code § 721, sub. 8-12; 32 How. 399; 7 Barb. 39; 2 N. Y. 494,495.) The deed was properly given to the vendee of the purchaser at the sale, and the assignment of the sheriff’s certificate need not be shown or even have existed. (7 Hill, 91, 94; 9 Barb. 25; 4 Denio, 484; id. 145-148; 1 Wend. 46; 1 Barb. 517.) The deed need not recite the assignment. It will be presumed that the sheriff had the [proper authority to deed to the grantee. (22 Barb. 656; 4 id. 180 ; 9 Cow. 191.)</p>

This action was brought to recover damages for alleged negligence causing the death of Michael Durbin, plaintiff’s testator. The plaintiff should have been nonsuited on the ground that there was no evidence showing that the derailment of the train was due to any negligence on the part of the defendant. (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356, 366; McDermotts. N. Y. C. R. R. Co., 23 Week.

Leupp and the Mutual Life Insurance Company to plaintiff’s complaint. This action was brought originally by Flora C. Clarke, daughtér of James A. Clarke, deceased, to establish an interest in certain real estate which she claimed under the will of her father, said defendant claimed under mortgages executed by-Caroline M. Clarke, widow of the deceased. The provision of the will upon which the question in controversy depends is set forth in the opinion.

(Reported below, 19 Hun, 399.) This action was brought by plaintiff as the holder of certain interest coupons upon bonds issued by the Mississippi Railroad Company to compel the defendants, Kelley & Alexander, to pay over moneys alleged to have been deposited with them by defendants, the Hew Orleans and Chicago Railroad Company, in trust, to pay said coupons. The facts material to the questions discussed appear in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made December 17, 1880, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>The plaintiff brought this action as assignee of Adeline E. Styles upon a contract made between her and the defendants’ testator, Samuel W. Truslow. The contract was dated April 4, 1876; by it said Adeline E. Styles agreed,to sell and convey to Samuel W. Truslow a certain house and lot in the city of New York, subject to a mortgage executed by Mrs. Styles to the plaintiff in this action, to secure her bond for the sum of $40,000, and also subject to the taxes, assessments, and water rates then on said property not to exceed $3,000, in exchange for which said Truslow agreed to sell and convey to Mrs. Styles certain other real estate in said city, subject to a mortgage and certain taxes thereon, and to assign to said Styles certain mortgages mentioned in said agreement. It was also agreed that the time of the payment of the said mortgage to the plaintiff should be extended by plaintiff to October 1, 1880, and the contract was made conditional, that said Styles should obtain such extension; Truslow agr.eed to assume and pay the assessments, taxes, and water rates on said premises so to be conveyed to him by Mrs. Styles not to exceed $3,000. Afterward and on the 13th day of April, 1876, a deed of the premises was executed and delivered by Mrs. Styles to Truslow, who reserved from the consideration payment to Mrs. Styles the .sum of $3,000. By the conveyance the premises were taken subject to the said mortgage of $40,000, and to the payment of the taxes, assessments, and water rates then on said premises, but contained no covenant or agreement on the part of Truslow to assume or pay either the mortgage, or the taxes, assessments, and water rates. Truslow failed to pay the taxes, assessments, and water rates, and .afterward an action of foreclosure was brought upon the mortgage against the mortgagor, Mrs. Styles and Truslow’s representatives, and the premises were sold on foreclosure. The taxes, assessments, and water-rates, which amounted to more than the $2,000, were paid out of the proceeds of the sale, and judgment for a deficiency was entered against the mortgagor, Mrs. Styles, in the sum of $17,-635.75.</p> <p>The delivery of the deed .under the circumstances of this case merged and extinguished the contract. (Houghtaling v. Lewis, 10 Johns. 297; Howes v. Barker, 3 id. 506; Renard v. Sampson, 12 N. Y. 561.) If the provision in the contract relating to the taxes created any personal obligation on the part of Truslow, it was a meré agreement to pay absolutely. (Calva v. Davies, 73 N. Y. 215.) The words of the contract, agreeing to sell the premises “subject to taxes * * * which the party of the second part agrees to assume and pay,” do not import an absolute promise to pay. (Douglass v. Clark, 14 Johns. 177; Slauson v. Watkins, 25 Alb. L. J. 72; Ayers v. Dixon, 78 N. Y. 318.) Assuming that the contract continues in force as to the payment of the taxes, Mrs. Styles could not, and her assignee, the present plaintiff cannot, maintain an action against Truslow’s representatives without showing that she paid the taxes before bringing . the suit. (Aberdeen v. Blackman, 6 Hill, 324; Churchill v. Hunt, 3 Den. 321, 324; Gilbert v. Wyman, 1 Comst. 550, 561; Thomas v. Allen, 1 Hill, 147; Ayres v. Dixon, 78 N. Y. 318; Anderson v. Blackman, 6 Hill, 324.) There being no privity of contract between Sage and Mrs. Styles in reference to the taxes, the promise did not inure to Sage’s benefit. (Vrooman v. Turner, 69 N. Y. 280.)</p> <p>Truslow’s promise to pay was not in the nature of an indemnity to Mrs. Styles against the possibility of her having in the future to pay the taxes, but the thing was treated and adjusted as a direct personal promise by Truslow to pay, which was broken upon failure by him to perform. (Gilbert v. Wyman, 1 N. Y. 550; Kobler v. Mattlage, 72 id. 266; Rector, etc. v. Higgins, 48 id. 533; Rubens v. Prindle, 44 Barb. 336; Rauson v. Copland, 2 Sandf. Ch. 251; Port v. Jackson, 17 Johns. 239; In re Negus, 7 Wend. 499; Hume v. Hendrickson, 79 N. Y. 127; Hartley v. Harrison, 24 id. 174.) In the absence of all proof there is no presumption that either party intends to waive covenants of which the conveyance is not a performance 'or satisfaction. (Taintor v. Hemingway, 18 Hun, 458; Morris v. Whitcher, 20 N. Y., 41; Witbeck v. Winne, 16 id. 532; Remington v. Palmer, 62 id. 32.)</p>

This action was brought to recover damages for an alleged unlawful removal from his position as a regular clerk in the fire department of the city of New York. The plaintiff was appointed a clerk in the fire department, June, 1874, and was employed in the bureau of the fire marshal. He continued in the position until December 31, 1875, when he was discharged without being informed of the cause of removal, or called upon for any explanation.

The nature of the action and the material facts are set forth in the opinion. Plaintiff, for the wrongful discharge or exclusion from service alleged in the complaint, was entitled to recover damages for a breach of the contract. (Howard v. Daly, 61 N. Y. 362; Polk v. Daly, 14 Abb.

This action was brought to have it adjudged that a bond and mortgage executed by plaintiff to Azel Carpenter, plaintiff’s testator, was paid and satisfied, and to compel a cancellation thereof, and a discharge of the mortgage of record. The court found the following facts: “ That on June 3, 1873, the plaintiff executed to Azel Carpenter' the bond and mortgage described in the complaint herein.

(Reported below, sub nom. Cragin v. Quitmcm, 22 Hun, 101.) ' The nature of the action and the material facts are stated in the opinion. The court on demurrer will consider the whole record.

This action was brought to.recover damages for alleged negligence, causing the death of Levi W. De Forest, plaintiff’s intestate. De Forest was a switchman and car coupler, in a freight yard in the city of Buffalo, in the employ of defendant, who, as receiver, was operating the road of the Erie Bailway Company. The yard was drained by sluices or shallow ditches running under the tracks in the spaces between the ties.

The nature of the action and the -material facts are stated in the opinion. The getting of the money on the order of one of the trustees did not make out the crime of getting money by false pretenses. (3 F. S. [6th ed.] 948, § 58; Rainey v. The People, 22 N. Y. 417; People v. Tompkins, 1 Park. Cr. Cas. 238.) There was no probable cause for the arrest and prosecution of the plaintiff for obtaining money by false pretenses.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 23, 1881, which affirmed an order of the Special Term, appointing commissioners to fix the crossing of the railroad of the New York, Lake Erie and Western Railroad Company (appellant), by the road of the petitioner, the New York, Lackawanna and Western Railway Company in the town of Chemung, Chemung county. (Mem. of decision below, 25 Hun, 556.)</p> <p>The material facts are stated in the opinion.</p> <p>The directors of the New York, Lackawanna and Western Railroad Company had no power to amend its articles of association by substituting Che-mung county in the place of Tompkins and Schuyler, and their resolution, so far as it was an attempt to do that, was null and void. (Laws of 1850, chap. 140, § 1; Laws of 1851, chap. 19, § 1; Laws of 1854, chap. 282, § 13 ; Laws of 1871, chap. 560, § 2.) If the directors intended, when voting for the resolution, to vote under section 23 of the act of 1850, their vote was not in compliance with the requirements of that section, and hence was null and void as an attempt to act under it. (Laws of 1876, chap. 77, § 1, amending § 23 of the act of 1850.) The provisions of the Bailroad Act, in respect to acquiring title to real estate, must be complied with strictly and chronologically. (N. Y. & B. R. R. Co. v. Goodwin, 12 Abb. [N. S.] 21, 23, 24.) A corporation, either private or municipal, cannot under a general power to take lands for a public use take from another corporation having the like power, lands or property held by it for a public purpose pursuant to the charter. (Matter of B. & A. R. R., 53 N. Y. 574; Matter of City of Buffalo, 64 id. 574; S. C., 68 id. 171; Matter of Rochester Water Commrs., 66 id. 413; Laws of 1881, chap. 649.) There has been no such failure to agree upon the line or lines, grade or grades, point and manner of the crossing in question, and the compensation to be made therefor as will justify the respondent’s resort to the court for an arbitrary appropriation of the crossing. (Laws of 1880, chap. 583; 77 N. Y. 563.)</p> <p>The petition contains all that is required to give the court jurisdiction to appoint commissioners, and all unnecessary and immaterial averments, which it was useless to state, and not necessary to prove, can be disregarded by the court upon this appeal. (In re B. & L. R. R. Co., 77 N. Y. 557.) In these proceedings, as in civil actions, what is not denied must be taken as true. (B. H. T. & W. R. R. Co., 79 N. Y. 64.) The requirement of the statute is satisfied by proof of any circumstances showing that the parties could not agree, and formal negotiations need not be shown. (P. P. & C. I. R. R. Co., 67 N. Y. 371; Pearce on Bailroads, 181.) The piece of land south- of and adjoining the roadbed of the Erie company is a part of its right of way, and the petitioner has a right to cross it. (Laws of 1850, chap. 140, § 28, subd. 4.)</p>

(Reported below, 24 Hun, 155.) This action was brought against defendants as sureties upon an undertaking given to discharge an attachment. The court found, in substance, that in July, 1870,plaintiffs commenced an action against William Christal and Joseph Struthers, upon a note given by the firm of Christal & Struthers, which firm, the complaint alleged, was composed of said defendants. That a warrant of attachment against the property of said William Christal was issued.

These are cross appeals from an order of the General Term of the Supreme Court, in the first j ndicial department, made October 28, 1881, which affirmed an order of Special Term, fixing the damages sustained ■ by defendant by reason of a temporary injunction order granted herein, and payable by the sureties on the undertaking given on the granting of such order.

This action was brought by plaintiff, as administrator of the estate of Elizabeth Snyder, deceased, to recover possession of various articles of personal property, consisting of articles of wearing apparel, two certificates of deposit payable to her order, with interest at the rate of four per cent after the first year, also a carriage, a clock and a cabinet picture.

Appeals from orders of the General Term of the Supreme Court, in the first judicial department, made January 11,1882, which reversed orders of the surrogate of the county of Mew York, denying applications of the purchasers above named to be released from purchases made by them respectively, under a sale in the proceeding first above entitled; the orders of General Term granted the application.

This action was brought to obtain a judicial construction of the will of Harmon K. Wells, deceased. The testator died in March, 1864, leaving his wife and seven children surviving. The widow died in Hovember, 1878 ; all of the children survived her.

This was a reference under the statute of a disputed claim against an estate. The claim was an account for work, etc., in shoeing horses for defendant’s testator. To prove the account the claimant offered Ms ledger in evidence, wMch was received under objection and exception. The evidence in relation thereto is substantially stated in the opinion. The referee erred in admitting the ledger of' the claimant in evidence.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming as to part, and reversing as to part, a judgment in favor of plaintiffs, entered upon the report of the referee.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The form of the note was notice to the plaintiff, J. S. F. Grim, that the consideratian was for the individual use of William T. Crim, and the plaintiff knowing the fact, could not hold the firm. (King v. Faber, 22 Penn. St. 21; Cooper v. McCluckan, 22 id. 80; Bank of Vergennes v. Cameron, 7 Barb. 143; Dob. v. Halsey, 16 Johns. 34; Stall v. Catskill Bk., 18 W. R. 478; Bk. of Rochester v. Bowen, 7 id. 309; Boyd v. Plumb, id. 309; Austin v. Vandermark, 4 Hill, 261; Wilson v. Wilson, 14 W. R. 146; Elliott v. Dudley, 19 Barb. 326; Story on Part., § 128; Union Bk. v. Underhill, 28 Sup. Ct. 182.) A note made secretly by one partner in his own name for his own use, indorsed clandestinely by him with the firm name, and held in ambush by a holder, cognizant of the manner in which it was made, for the period of three years and nine months, cannot hold the non-assenting partner.' (Herman on Estoppel, § 327; Dewey v. Field, 4 Metc. 381; Taylor v. Ely, 28 Conn. 250; Forsyth v. Day, 46 Me. 176; Ackla v. Ackla, 6 Penn. 228.) The indorsers of a promissory note payable on demand cease to be liable after the lapse of a reasonable time without demand. (Losee v. Dunkan, 7 Johns. 70; Sice v. Cunningham, 1 Cow. 397; 1 T. R. 167; 2 Caine’s 369; Merrill v. Todd, 23 N. Y. 28; Herrick v. Wolverton, 41 id. 581-590; Edw. on Bills, 156; 15 W. E. 308; 3 Hill, 582; 3 W. E. 75 ; 41 N. Y. 000; 18 W. R. 478; 19 Barb. 326; 6 Abb. [N. S.] 341; 28 Sup. Ct. 179.)</p> <p>The demand and protest was in time to charge the indorsers. (Merritt v. Todd, 23 N. Y. 28; Pardee v. Fish, 60 id. 265.) A recovery can be reduced as to separate and distinct items, where error in respect thereto has been committed upon the trial. (Chouteau v. Suydam, 21 N. Y. 185; Whitehead v. Kennedy, 69 id. 462; Code, § 1317.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover damages for alleged negligence, causing the death of Patrick Connelly, plaintiff’s intestate, who was killed while attempting to cross defendant’s road at a highway crossing in the town of Geddes,. Onondaga county. The highway runs north and south, the railroad east and west. The deceased approached the crossing from the north, driving a team attached to a loaded wagon, he sitting upon the load. The evidence as to the circumstances of the accident, so far as material are stated in the opinion. At the close of plaintiff’s evidence and also at the close of all the evidence, defendant’s counsel moved for a nonsuit, which was denied, and said counsel duly excepted.</p> <p>A person approaching a railway crossing upon the highway is bound to make vigilant use of his eyes and ears to ascertain if a train is approaching, and if by so doing he could have avoided a collision, a recovery cannot be had for injuries received. (Salter v. U. & R. R. R. Co., 75 N. Y. 273; Reynolds v. N. Y. C. R. R. Co., 58 id. 248, 250, 252; Wild v. H. R. R. R. Co., 24 id. 430, 432; Warner v. N. Y. C. R. R. Co., 74 id. 470, 471; Steenes v. O. & S. R. R. Co., 18 id. 422.) The election whether to carry the highway over or under the railroad or on a grade with it, is with the company, and when exercised in good faith is not reviewable. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302, 304.) In approaching a railroad, a man must be prepared to stop when, necessary. (75 N. Y. 273.) That deceased was well acquainted with the ground does not excuse his negligence, but rather adds to and intensifies it. (75 N. Y. 274.) If a party sees the train it ceases to be of any consequence whether the bell is rung or not. (Pakalinski v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 427.) The burden of proof is on the plaintiff to show that the deceased is free from contributive negligence. (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248.) There must be evidence from which an intelligent jury can reasonably-find that deceased was free from negligence which contributed to the injury. (Toomey v. Brighton Ry., 36 C. B. [N. S.] 146; Coen v. Clark, 94 U. S. 278.) As against positive affirmative evidence of credible witnesses, to the ringing of a bell or the sounding of a. whistle, there must be something more than the testimony of one or more witnesses that they did not hear it, to authorize the submission of the question to the jury. (Culhane v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 133; Siebert v. The Erie Ry. Co., 49 Barb. 584.) If deceased looked as claimed, he must have se.en the train more than eighty rods from the crossing. In such case it was immaterial whether the bell was rung or not. (Pakalinski v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424.)</p> <p>A failure to comply with the statutory requirements with reference to the giving of the usual signals is negligence per se. (Renwick v. N. Y. C. R. R. Co., 36 N. Y. 132; Ernst v. Hudson River R. R. Co., 35 id. 9.) The testimony will justify a jury in finding that the bell did not ring as against the evidence of the defendant’s employes that they rang the bell a whole mile before they reached the crossing. (Salter v. U. & B. R. R. Co., 59 N. Y. 631; Dyer v. Erie R'y Co., 71 id. 237; Bryne v. N. Y. C. R. R. Co., 14 Hun, 323; Voak v. Northern Cent. R. R. Co., 75 N. Y. 322.) It was the defendant’s duty, both by statute and at common law, to keep its road at the crossing in a safe condition so that a traveler upon the highway exercising ordinary care could pass the same in safety. A failure to do so also constitutes negligence. (Gale v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 594; Laws of 1850, chap. 140, § 28; Laws of 1853, chap. 62; Albany, etc., R. R. Co. v. Brownell, 24 N. Y. 345; People v. B. & A. R. R. Co., 70 id. 569; People v. D. & C. R. R. Co., 58 id. 152; People v. N. Y. C. & H. R. R. R. Co., 74 id. 302; Richardson v. N. Y. C. R. R. Co., 45 id. 848; Wooster v. Forty-second Street. R'y Co., 50 id. 203 Colt v. Lewiston R. R. Co., 36 id. 214; Cuddeback v. Jewett, 20 Hun, 187; Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 217.) The question of contributory negligence was properly submitted to the jury. (Massoth v. D. & H. Canal Co., 64 N. Y. 529; Stackus v. N. Y. C. & H. R. R. R. Co., 79 id. 464; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Hackford v. N. Y. C. & H. R. R. R. Co., 53 id. 654; Hart v. Hudson River Bridge Co., 80 N. Y. 622 ; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72.) While the plaintiff must be free from negligence, it is not necessary that the absence of contributory negligence should be established by direct evidence, but it may be made to appear from the circumstances, and in weighing those circumstances.it may be assumed that all men are desirous of preserving them lives and keeping their bodies from harm. (Morrison v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 643; Hart v. Hudson River R. R. Co., 80 id. 622.) Where one places another by his negligent act in such a position of jeopardy to either his life or his property that he is compelled to choose upon the instant and in the face of apparently grave and impending peril between two hazards, and he makes such a choice as a person of ordinary prudence placed in the same situation might make, and injury results therefrom, the fact that if he had chosen the other hazard, he would have escaped injury does not prove contributory negligence. (Twombly v. Central Park R'y Co., 69 N. Y. 159; Buell v. N. Y. C. R. R. Co., 31 id. 314; Filer v. N. Y. C. R. R. Co., 49 id. 74; Voak v. Northern Cent. R. R. Co., 75 id. 320; Dyer v. Erie R'y Co., 71 id. 25; Coulter v. Am. Union Express Co., 56 id. 585; Cuyler v. Decker, 20 Hun, 173; Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 218.) The deceased was not bound to abandon his horse the moment the train came -in sight. (Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 212; Bernhardt v. R. & S. R. R. Co., 1 Abb. Ct. App. Dec. 131.) It is not to be presumed, because there is no evidence affirmatively showing that the deceased either looked or listened, that he did not look and listen. (Massoth v. D. & H. Canal Co., 64 N. Y. 529; Ernst v. Hudson River R. R. Co., 39 id. 68.) The mere fact, that an engineer can demonstrate that from a given point in the highway the track of a railroad is visible for a certain distance, does not necessarily establish that a person in charge of a team approaching the track is negligent because from the point specified he does not see a train approaching at great speed, in time to avoid a collision. (Massoth v. D. & H. Canal Co., 64 N. Y. 529; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72.) As the evidence shows that the deceased coiild not have seen1 the train, under any circumstances, on account of the obstruction created by the brush and nursery, until he'reached a point where he was in imminent danger, it therefore availed him nothing if he did look, as it would furnish him • with no information which could be of service. (Dyer v. Erie R’y Co., 71 N. Y. 230; Sykes v. D. L. & W. R. R. Co., 12 N. Y. Week. Dig. 430.)</p>

The nature of the action and the material facts are stated in the opinion. When the wrongful acts of several parties, performed separately, and not in concert, cause injury to the property of another, each is liable only for the injury resulting from his own acts.

The facts are stated in the opinion. The subscribing witnesses had not sufficient personal knowledge of the decedent to enable them to pass intelligently upon her competency to devise, at the time of the execution of the instrument. (2 K. S. 58, § 14; Swenarton v. Hancock, 9 Abb. N. C. 326; De Witt v. Barley, 9 N. Y. 380-1; Doe v. Kersey, 4 Burn’s Eccl.

Quitman. (Eeported below, 25 Hun, 537.) The contestants claimed that the second and third clauses of the will had been revoked and canceled. The material facts are stated in the opinion. It is to be presumed that the erasures or obliterations were made by the testatrix cmimo revocandi.

Williams as to items in said decree appealed from by him, and modified the decree by charging him with certain additional items. (Eeported below, 23 Hun, 102.) The testatrix died in 1868; by her will her husband, John Williams, and the appellant were appointed and qualified as executors. The testatrix left no personal property of any consequence. She left a house and lot at Rondout, and a farm at White Plains which the executors had a power to sell.

' The nature of the action and the material facts are stated in the opinion. The finding that the consideration for the settlement was inadequate was without evidence and a legal error. (Putnam v. Hubbell, 42 N. Y. 106; Fellows v. Northrap, 39 id. 117; Mason v. Lord, 40 id. 447; Lomer v. Meeker, 25 id. 361.) The finding as to Greene’s intention, and the appellants’ knowledge did not make a case for a judgment condemning the transaction as fraudulent.

<p>In an action against highway commissioners for negligence in not guarding one side of a bridge by a railing, in consequence whereof M., plaintiff’s ? intestate, fell from the bridge and was injured, plaintiff offered to show ’ that they erected a railing the day after the accident; this was not offered generally, but for tlie-expressed purpose of proving, first,that defendants exercised control over the bridge ; second, that they had sufficient funds at the time of the accident to construct the railing ; the court received it when offered for the first of these declared purposes,but reserved the question as to its competency for the second purpose until the evidence was closed; it was then decided, the case stating that the evidence “was allowed and considered upon the question of defendants’ negligence,” and exception was taken. Held, that the ruling was, not that the evidence was competent upon the issue of negligence generally, but only that it was admissible for the purpose so expressed; and that the ruling was not error.</p> <p>M. was walking in the traveled part of the highway, in the evening, he \ encountered a loaded team upon the bridge, and stepping one side to let it pass, fell from the unprotected side of the bridge. It appeared that the other side was protected by a railing, and there was on that side a walk across the bridge for foot passengers ; there was evidence that this was drifted and obstructed by snow, icy and slippery. Held, that it was not negligence per se to walk in the traveled track or on the exposed side of the bridge; but that the question of contributory negligence was one of fact, which having been decided against defendants, could not be reviewed here. Morrell v. Peak (24 Hun, 37), reversed. -J</p>

' Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made •December 5, 1881, which affirmed a judgment in favor of plaintiff, and affirmed an order denying a motion for a new trial. (Reported below, 15 J. & S. 494.) The nature of the action and the facts are set forth in the opinion. The sheriff becomes liable' as bail the moment he makes the arrest.

(Reported below, 28 Hun, 339.) The nature of the action and the facts are set forth in the opinion. This action rests solely upon the liability of the defendant, from the circumstances that the defendant’s name stands upon the books as a stockholder, and must not be confounded with that large class of eases where the liability rests upon a contract, express or implied.

(Reported below, 15 J. & S. 288.) The nature of the action and the material facts are set forth in the opinion. The court erred in permitting the plaintiff to answer the question, whether he made the purchase with any object or intention of aiding or assisting Besson to hinder, delay or defraud his creditors.

<p>A policy of life insurance is not an ‘1 evidence of debt for the absolute payment of money upon demand or at a particular time ” within the meaning of the provision of the Code of Civil Procedure (§ 1778), declaring that in an action against a corporation upon such an obligation, unless defendant serves with its " answer or demurrer a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment as in case of default,” etc.; and this although the policy has become due by the death of the insured.</p> <p>The provision applies only to instruments which admit on their face an existing debt payable absolutely.</p>

, upon four executions, including an.execution issued in the action above entitled, and retaxed said fees. The property seized was a stock of goods which were sold at auction by a public auctioneer, for a sufficient sum to pay the three executions first levied but were insufficient to pay plaintiffs in full, and the sheriff presented his bill for taxation.

Marvin, as executors of the will of John Paulding, deceased. The material facts are stated in the opinion. Where an executor, by his negligence, suffers his co-executor to receive and waste the estate when he has the means of preventing it, by proper care, he is liable to the beneficiaries under the will for the estate thus wasted.

Fogel, deceased, to pay to the petitioner the amount in their hands belonging to the estate, to apply upon a judgment for a deficiency, entered against said executors in an action to foreclose a mortgage executed by their testator. Fogel, at the time of his decease, was the owner in fee of certain real estate at Morrisania, upon which was a mortgage, executed by him as security for a bond of $4,000, which bond and mortgage were assigned to plaintiffs.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover damages for alleged negligence causing the death of Ellen Murphy, plaintiff’s intestate.</p> <p>The deceased, on April 10, 1868, took a train known as the De Witt special, upon defendant’s road, at Syracuse, to go to East Syracuse. The train in question was run for the purpose of carrying defendant’s employes to the workshop upon their road, and it also carried passengers. By the side of track No. 3, and on the south thereof, was track No. 2, and south of that, track No. 1, of defendant’s mainline. After the train stopped the deceased alighted therefrom on the south side, in company with one Miss Brassell; on alighting they stepped upon track No. 2, and started in a southwesterly direction across the track toward the Butler gate. They had taken but a few steps when an express train struck and killed them. The administrator of Miss Brassell brought suit against defendant and recovered judgment; the case is reported in 84 N". Y. 241.</p> <p>The plaintiff herein was the husband of the deceased; upon the trial as a witness in his own behalf he was asked and was permitted to state under objection and exception the amount of the necessary funeral expenses of the deceased.</p> <p>Hiscock, Clifford & Doheny for respondent. The action being to recover the pecuniary damages sustained by the next of kin of the deceased, it was proper to show the nature of the services she was accustomed to render such next of kin. (Lilley v. H. R. R. R. Co., 24 N. Y. 471.) It was proper to show the amount of the funeral expenses, they being a part of the pecuniary damages. (Roeder v. Ormsby, 22 How. Pr. 270.)</p>

This action was brought by plaintiff as administratrix of the estate of Ambrose L. Pinney, deceased, to recover for services alleged to have been rendered by the deceased as attorney and counsel for defendants. The referee erred in excluding the questions put to the witnesses, Orth and Streib, to contradict plaintiff’s witnesses who had testified as to conversations between plaintiff’s intestate and defendants.

The defendants set up a counter-claim, and. the referee decided that defendants were entitled to an affirmative judgment for $20,074.12. The report was confirmed by the Special Term, and judgment was ordered and entered against the claimant for said sum.

The material facts are stated in the opinion. The exception to receiving the photograph of the deceased in evidence was well taken. (People v. Cowley, 11 W’kly Dig. 516; Cozzens v. Higgins, 1 Abb. Ct. App. Dig. 453; 3 Keyes, 206; Udderzock's Case, 76 Penn. St. 340; Puloff v. People, 45 N. Y. 213; Marcy v. Barnes, 16 Gray, 162: Hynes v. McDermott, 22 Alb. L. J. 368.) The affidavit of Mr. Dailey should be considered a part of the record. (People, ex rel.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order ’ made May 3, 1881, which affirmed a judgment entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff, as executor of the will of Sidney Janes, deceased to obtain a judicial construction of said will. The testator died in February, 1878, leaving his widow and two daughters, Emily Seymour and Amelia Crumb, surviving ; both of the daughters had children then living. ■</p> <p>The clauses of the will which are in question are as follows:</p> <p>“ I give to my wife Ehoda, in case of her becoming my widow, the use of the premises on which we now reside, and all of the household goods of which we are now possessed and own, to have and hold for her own use and benefit during her life-time, after which one-half of the same is to go to my daughter Emily, wife of Benjamin Seymour; and I further give to my wife $500 in money—$500. I give to my two daughters, Amelia, wife of Doctor D. W. Crumb, and Emily, above named, $1,000, each, to be put at interest and there kept, during their life-times, and they are to have the use thereof, then the principal to go to their children respectively each. I give to my daughter Amelia one gold watch; the same is in my possession and was bought for her. I give to my daughter Emily $35 in money. I wish my executors hereinafter named to obtain and set four sets of headstones, as follows: one to the grave of my wife Mary, one to the grave of my daughter Anbernett one to the grave of my wife Abiah, and one to my grave, good, common, respectable headstones, all. And when the foregoing provisions shall have been completed, which I wish to have done as early as propriety shall indicate, and all dues and expenses paid, then whatever of property or value I may have left, I wish one-half of it to go to my daughter Emily, aforenamed, and the other half together with the one-half of the proceeds of the premises and household, the use of which is devised to my wife, to be put at interest. I further give to my daughter Amelia, aforenamed, $100 a year, to be paid to her in person annually, and the first payment thereof to be paid to her one year after my death. Of the $1,000 devised to my daughter Amelia, in case she should die not leaving any child or children living, then the $1,000 I wish to have go to my daughter Emily’s children, but in case she dies leaving child or children, then the child or children are to have the use, and when the youngest shall come to his or her majority, or of age, not longer being a minor, then the same to be paid over to said child or children, and if my daughter Amelia should die, leaving any money or property arising out of the money payments devised in this will, then said money or property is to go to my daughter Emily. And I hereby make my daughter Emily the residuary legatee of any and all matters of value.”</p> <p>The legacy of “ thirty-five dollars in money” to Emily is not a specific legacy, and it must abate with the others. (2 Bouv. Law Diet. 21; Tiff v. Porter, 8 N. Y. 516; Newton v. Stanley, 28 id. 61; Walton v. Walton, 7 Johns. Ch. 258; 2 R. S. 90, § 45; 3 id. [6th ed.] 98, § 56.) The language of the will, while not definite or certain as to the subject to which it applies, is entirely insufficient to create a valid gift of the $1,000, previously given absolutely to Amelia’s children, to Emily’s children. (Foose v. Whitmore, 82 N. Y. 405; Lines v. Darden, 5 Fla. 51; 2 Abb. Law Diet. 655; 2 Bedf. 410, 419.) On the death of Amelia her children take the $1,000, each share to be paid over to the lawful guardian then. At least each share must be paid over as each becomes twenty-one. (Converse v. Kellogg, 7 Barb. 590, op. 596; Smiths. Edwards, 23 Hun, 223; Lovett v. Gillender, 35 N. Y. 617; 1 R. S. 773, § 1; Schettler v. Smith, 41 N. Y. 328; Everitt v. Everitt, 29 id. op. 98; Hawley v. James, 16 Wend. 64; Kane v. Gott, 24 id. 641; Gott v. Cook, 7 Paige, 521; Garvey v. McDevett, 72 N. T. 556.) Whenever the title to real property or personal estate becomes vested in a person of full age and laboring under no disability, he has the absolute right to receive the estate and handle it at pleasure. (Hetzel v. Barber, 69 N. Y. 12; Lovett v. Gillenber, 35 id. 617.) Absolute ownership carries with it control, enjoyment, possession. (Bouv. Law Diet. 268; Abbot’s Law Diet. 6; Converse V. Kellogg, 7 Barb. 596.) Here there are no shares and no gift over of any part, or of the whole, and the limitation hitched on attaches to the corpus of the entire estate, and is void. (Colton v. Fox, 67 N. Y. 351; Hawley v. James, 16 Wend. 60; 72 N. Y. 562; Jennings v. Jennings, 7 id. 547; Manice v. Manice, 43 id. 303; Craig v. Hone, 2 Edw. 554; McSorely v. Leary, 4 Sandf. Ch. 414; Taylor v. Gould, 10 Barb. 338.) The trust created by this will, by its terms, continues as to all the property beyond the duration of two lives and is void. The law will not help it by declaring separate and several trusts as to separate and several shares. (Colton v. Fox, 67 N. Y. 351; Stevenson v. Leslie, 70 id. 517; Tucker v. Bishop, 16 id. 402; Teed v. Morton, 60 id. 506; Johnson v. Valentine, 4 Sandf. 37; 3 Wash, on Real Prop. 511; Colton v. Fox, 67 N. Y. 348.) When nothing is interposed between the infant and his enjoyment of the possession of the estate except his own minority, he has a vested estate. (Converse v. Kellogg, 7 Barb. 590, 596,597; 1 Abb. Law. Diet. 6; Teed v. Morton, 60 N. Y. 502, 506.) By the first provision in the will, Amelia takes as trustee during life, using for herself only the interest, then the fund goes absolutely to her children. (Smith v. Van Ostrand, 64 N. Y. 278.) From the one-half of the proceeds of the real estate, to be put at interest, Amelia Crumb is entitled absolutely to the sum of $100 annually; such payment to commence as of one year from the death of the testator. Such payments are to be made from both the principal and interest if necessary. (Pierrepont v. Edwards, 25 N. Y. 12S; Newton v. Stanley, 28 id. 61, op.; Giddings, Ex. v. Seward, 16 id. 365; Watsons v. Smith, 7 Hun, 544; Dickens v. Edwards, 30 Hare, 275; Mann v. Copeland, 2 Maddock, 223; Savile v. Blockett, 1 P. Wms. 778; Creed v. Creed, 11 C. & F. 491; Gordon v. Duff, in re Ward, 28 Beavan, 519; Paget v. Hurst, 9 Jur. [N. S.] 900; Mullins v. Smith, 8 Weekly Rep. 739; 2 Redfield on Wills, 140, § 7U sub. 16.) In case Amelia dies before this entiie fund is paid over, the sum remaining goes to her personal representatives; in the case she dies before it is all paid over, the balance falls into the general estate,.and does not pass to Emily under the residuary clause. (Redfield on Wills, 145 [154]; Jennings v. Conboy, 73 N. Y. 230; Parker v. Plummer, 1 Cro. Eliz. 190; Keny v. Derrick, 1 Cro. Jac. 140; Stewart v. Garnett, 3 Sim. 398; Doe dem. Guest v. Bennett, 5 Eng. Law & Eq. 536; Sink v. Sink, 53 How. Pr. 400; Matter of Dowd, 8 Abb. N. C. 118.) Amelia’s estate and ownership of what is paid her is absolute, and not a life estate, and therefore this attempt to create a life estate with remainder thereon is void and repugnant to the absolute gift. (Hetzel v. Barber, 69 N. Y. 15; Oxley v. Lane, 35 id. 340; Lovett v. Gillender, 35 id. 617; Patterson v. Ellis, 11 Wend. 259; Smith v. Van Ostrand, 64 N. Y. 284.)</p> <p>While the general rule is that all legacies payable out of the personal estate abate in proportion, in case of a deficiency of assets, and technically are not specific but are general legacies, there are exceptions to the rule, and the only way of ascertaining such exceptions is in ascertaining the intention of the testator. (Scofield v. Adams, 12 Hun, 370; Stewart v. Chambers, 2 Sandf. Ch. 293, 396.) The provision for Amelia is wholly a question of intention, and since no positive rule of law is violated by the construction adopted by the court below, that intention should control. (Everitt v. Everitt, 29 N. Y. 79; Colton v. Fox, 67 id. 351.) The clause of the will providing: That in case Amelia should die not leaving any child or children living, then the $1,000 given to Amelia during life should go to Emily’s children, is to be construed together with the former clause, and the first absolute gift in terms will be modified by the later clause, and there is no repugnance between them. (Norris v. Beyea, 13 N. Y. 273; Smith v. Van Ostrand, 64 id. 285; Tyson v. Blake, 22 id. 558.) The remainder to the children of Emily, in case Amelia dies without issue, is valid. (Guernsey v. Guernsey, 36 N. Y. 267.) By the provision of the will that in case Amelia dies leaving child or children, then the child or children are to have the use, and when the youngest shall come to his or her majority, then the same to be paid over to said child or children, the' absolute ownership of the fund is suspended only during the life of Amelia. At her death it becomes vested in her then living children who are the owners of the principal and income as tenants in common. (Everitt v. Everitt, 29 N. Y. 72; Colton v. Fox, 67 id. 353.)</p>

This action was brought to recover damages for alleged negligence, causing the death of William T. Harvey, plaintiff’s intestate. The intestate was a fireman in the employ of the defendant, and was killed at the village of Lyons, in the course of such employment, under the following circumstances: On the 5th day of January, 1877, a freight train on which the deceased was fireman was passing the Lyons station upon the line of defendant’s road, going west.

(Reported below, 24 Hun, 15.) The nature of the action and the material facts are stated in the opinion. The term “next of kin” does not legally include the widow. It means relatives in blood only.

This action was brought originally by Augustus B. Fitch; upon his decease the present plaintiff was substituted.

<p>Defendant set up as a counter-claim in this action and proved that plaintiff transferred by written assignment to L., defendant’s testator, an account against the estate of T.; the assignment contained an agreement on the part of the assignee, that in case the money received by him from L. could not be collected from " the representatives of” T., he would pay the same to L. with interest. The claim was duly presented by L. to the executors of T., and to a referee appointed in the course of legal proceedings to pass upon claims against his estate. After certain deductions for goods not delivered by plaintiff, the balance of said account was allowed, and upon this a dividend of twenty-five per cent was paid. The real estate of T. was sold in proceedings before the surrogate, but nothing more was received by L. or other creditors. Held, that L. used due diligence in exhausting legal remedies; and that defendant was entitled to counter-claim the balance paid by L. to plaintiff over the percentage so received ; that it was not necessary to proceed to judgment and execution against the estate of T.</p> <p>The difference between this case and that of a guaranty of collection of a claim against a living debtor pointed out.</p> <p>The provisions of the Revised Statutes (2 R. S. 116, §§ 19, 20, 21), in’ regard to the issuing of executions upon a judgment obtained against “ any executor or administrator after a trial at law,” relate only to a case where such representative has disputed the debt and subjected the creditor to a litigation; no preference is given to the judgment-creditor, and execution, if one is permitted by the surrogate, is to be paid only in the proportion paid to other creditors.</p> <p>The history of legislation on this subject prior to the Revised Statutes stated.</p>

This action was brought by the plaintiff, as superintendent of the poor of Orange county, against the executors of the estate of Abraham Maze, deceased, to recover for the support of the testator’s wife from October, 1872, to January, 1875.

(Reported below, 15 J. & S. 85.) The nature of the action and the material facts are stated in the opinion. There can be no gift of personal property without a delivery, The donee must acquire not only the possession, but the dominion of the property. (2 Kent’s Com. 439; Brink v. Gould, 7 Lans. 423; Irish v. Nutting, 47 Barb. 370; Hoble v. Smith, 2 Johns. 52; Bedell v. Carll, 3 N. Y. 581, at page 584 and 585; Montgomery v. Miller, 3 Redf.

The nature of the action and the material facts are stated in the opinion. Conklin’s authority was special and limited; it was not a general agency. He could only exercise the special power conferred upon him. When he acted beyond it, and made an optional contract, the corporation was not bound by his acts.

(Reported below, 15 J. & S. 396.) The nature of the action and the material facts are stated in ■ the opinion. Plaintiff’s offer, in the complaint, to assign the bonds and mortgages was all that was necessary, especially in the absence of any request to find, motion for nonsuit or other objection on the trial. (White v. Dodds, 42 Barb. 555; King v. Fitch, 40 N. Y. 451; Lewis v. J. A., 4 Edw.

' (Reported below, 15 J. & S. 377.) This action was upon a policy of life insurance. The material facts are stated in the opinion. Defendant having the legal and moral right to declare the policy null and void, as the insured had changed his condition, it properly refused to waive the forfeiture. (Bliss on Life Insurance, 272; May on Insurance, 406, 424; How v. Union M. Life Ins.

This action was brought for admeasurement of dower. The material facts are stated in the opinion. The proof of acknowledgment of marriage, matrimonial cohabitation, habit and repute was so clear and for so long a period as to establish the marriage, and the burden of disproving it was upon defendants.

) This action was brought by plaintiff, who claimed as sole heir at law of Robert Kermit, deceased, to recover possession of certain lots in the city of New York. The said Robert Kermit left a will, which in the first clause stated it to be his desire to make “ a suitable and proper disposition of such worldly estate” as he should leave behind him.

The attorney-general was not entitled to an allowance out of the fund for services of special counsel employed by him. (Laws 1880, chap. 587; Laws 1848, chap. 857, § 3; Laws 1879, chap. 272; Laws 1878, p. 342; 1 Edm. Stat. 164; § 15, title 1, chap. 8, part 1 E. S.; Nevitt v. Bk. Pt.

The material facts are stated in the opinion. The relator was properly assessed for the mortgages in this State. (1 E. S. 387; 2 Kent’s Com. 408, 420; Hoyt v. Commissioner of Taxes, 23 N. Y. 196, 224; Lord v. Arnold, 18 Barb. 104; Story’s Confl. of Laws, 309-314; 2 Kent’s Com. 406; 2 Black.

crime of attempting wrongfully to obtain public moneys from the county of Albany. (Mem. of decision below, 26 Hun, 378.) The material facts are stated in the opinion. The absence of the accused from the court-room during a part of the trial was error. (Maurer v. The People, 43 N. Y. 1; People v. Perkins, 1 Wend. 91; Prene v. Comm., 18 Penn. 103.) The court wrongly instructed the jury to the effect that the charge was a misdemeanor.

This action was upon a policy of fire insurance issued by defendant, insuring plaintiff against “ loss or damage by fire, to the amount of $5,000, on carpets, their own or held by them in trust or on commission, or sold but not delivered,” contained in a building described, in the city of New York, which was the warehouse of George 0. Richardson & Co., commission ■merchants. The facts material to the questions discussed are stated in the opinion.

This action was brought by plaintiffs to set aside a deed executed by defendant, Lewis, as sheriff of the county of Niagara to defendant Bliss, and to compel said sheriff to execute a deed of the premises to plaintiffs. The action was originally brought by John Nehrboss, who died after entry of judgment on the report of the referee, and the present plaintiffs, his heirs at law, were substituted in his place.

<p>A vendor of goods, the sale and delivery of which was induced hy fraud on the part of the vendee, does not, by an effort to retake the entire property which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion; nor is the effort a defense to an action to recover possession, against one in whose hands a part is found.</p> <p>Where, therefore, after the commencement of this action to recover the possession of goods alleged to have been so obtained by C., a fraudulent vendee, a portion of which goods were found in the possession of defendant who, as sheriff, had levied upon them under an execution against G., plaintiffs, with other creditors, instituted proceedings in bankruptcy against r 0., plaintiffs stating in their petition their demand to be for the value of that portion of the goods not retaken herein, held, that the bankruptcy proceedings were no defense; that the bringing of this action was an election to disaffirm the contract of sale and reclaim the goods, and, so far as the goods were retaken, was final and conclusive ; but plaintiffs did not thereby lose the right to recover of the fraudulent vendee the value of the remainder.</p> <p>Also held, that this conclusion was not violative of the rule prohibiting more than one action upon one claim; that the contract of sale was avoided altogether, the claim in the bankruptcy proceedings being simply for the value of the goods converted.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order made October 28, 1881, which denied a motion for a new trial and directed judgment on a verdict, exceptions having been ordered to be heard at first instance at General Term. (Reported below, 25 Hun, 262.)</p> <p>This action was brought against defendant, as sheriff of the county of Erie, to enforce an alleged liability as bail.</p> <p>The complaint alleged, and plaintiff’s evidence on the trial showed that plaintiff commenced an action in tort against one Warren; that an order of arrest was issued therein which was delivered to defendant who arrested Warren, the latter was discharged on giving bail, the bail were excepted to, but neglected to justify, plaintiff recovered judgment against Warren, a property execution was issued thereon, upon its return unsatisfied, and as the complaint alleges on March 17, 1879, an execution against the person of Warren was issued to defendant which was returned by him April 3, 1879, “ defendant not found.” Neither of the executions were tested, and the body execution did not specify the time when it was returnable, but simply directed a return thereof “ as required by law.”</p> <p>The third count or defense in defendant’s answer alleged in substance that said execution was returned by defendant’s deputy sheriff or under sheriff having the same in charge “ at the request and by the direction of the plaintiff in said execution and this action, without the knowledge, privity or consent of defendant, * * * that said plaintiff’s attorney * * * * requested and directed said execution to be so returned that he might commence this action against defendant, and that in form the law might seem to be complied with,” etc.</p> <p>Upon the trial defendant offered to prove said answer; this was objected to as constituting no defense, and the proof was excluded; defendant’s counsel duly excepted.</p> <p>Defendant, being liable as bail, is entitled to all their rights and privileges, and is burdened with their obligations. (Code of Givil Proc., §§ 573, 595; Clapp v. Schutt, 44 N. Y. 104.) Assuming that the notice of no acceptance of bail was properly served, then Haberstro became Warren’s bail with exactly the obligations of Bedford and Phillips. (Code, §§ 587, 595.) The omission of the teste and direction to return in the execution rendered it void. (Hew Code, §§ 23, 24, 1364; Code, § 1366; 3 Abbott’s Forms, 2, 408; Parke v. Church, 5 How. 381; Clark v. Miller, 18 Barb. 269; Farnham v. Hildreth, 32 id. 277; 2 Kebb, 705, pl. 69; 844, pi. 81; 3 id. 213; 6 Rep. 54; Turner v. Felgate, 1 Lev. 95; 1 Sid. 292; Parsons v. Loyd, 3 Wils. 341, 345; Woodcock v. Bennett, 1 Cow. 735; 2 Tidd, 1029; Read v. Markle, 3 Johns. 518; Barker v. Braham et al., 3 Wils. 368; Corwin v. Freeland, 6 How. Pr. 253; Carnick v. Meyers, 14 Barb. 1.) The sheriff, in collecting an execution, acts as the officer of the court whose process it is, and also as the agent, appointed by law, of the party who seeks by aid of the writ to obtain satisfaction of the debt or thing awarded by the judgment. (Nelson v. Kerr, 59 N. Y. 225; Parsons v. Loyd, 3 Wils. 341; Woodcock v. Bennett, 1 Cow. 735; Banker v. Norwood, 3 Wils. 368; Spencer v. Cuyler, 17 How. Pr. 601; Tyler v. Willes, 33 Barb. 332; Fenton v. Flagg, 24 How. Pr. 502; Farqueharson v. Kimball, 18 id. 36; New Code, § 597; Gorham v. Gale, 7 Cow. 739; Crocker on Sheriffs, § 850; Homan v. Liswell, 6 Cow. 660; Cornell v. Barnes, 7 Hill, 35; Mickles v. Hart, 1 Denio, 548; Corning v. Southland, 3 Hill, 552; Walter v. Sykes, 22 Wend. 536; Boot v. Wagner, 30 N. Y. 1; Humphrey v. Hathorn, 24 Barb. 278; Wehle v. Conner, 69 N. Y. 550; 3 R. S. [6th ed.], §§ 10,15; New Code, §§ 578-580, 587; B’k of Havana v. Magee, 20 N. Y. 355.) The defendant is not estopped from setting up the void character of the process, or directions given about their return, as a defense in this action. (Baker v. The Union Mut. L. Ins. Co., 43 N. Y. 289; Dunlap’s Paley on Agency, 261; Hutchins v. Hubbard, 34 N. Y. 24; Story on Agency, § 140.)</p> <p>Defendant was liable as bail, and the complaint as dratpi, and the action as brought, indicates that it was to enforce his liability as such. (Code of Civil Procedure, § 587; Bartlett v. Crozier, 17 Johns. 438; Austin v. Goodrich, 49 N. Y. 266; Tugman v. Nat. Stmshp. Co., 76 id. 207; Dunford, v. Weaver, 84 id. 446; 19 Hun, 1; 21 id. 320; 1 Abbott’s Forms, 428, No. 523; Metcalf v. Stryker, 10 Abb. 12; 31 N. Y. 227, 255; Bensel v. Lynch, 44 id. 162, 165.) Notice of exception to bail was properly served at sheriff’s official place of business, upon his under sheriff in charge thereof. (2 E. S. [Edmunds’ ed.] 296, §§ 54, 55, 56 ; 2 E. S. 285, § 55; Dunford v. Weaver, 21 Hun, 251; Manning v. Keenan, 73 N. Y. 45, 53; France v. Hamilton, 26 How. 180; People, ex rel. Metcalf, v. Dikeman, 4 Keyes, 93, 107.) The property and body executions were valid and the objections thereto were properly overruled. (Code of Civil Procedure, §§ 23, 24; Holmes v. Williams, 3 Caines, 98; Bissell v. Kip, 5 Johns. 96; Jones v. Cook, 1 Cow. 309; Porter v. Goodman, id. 413; Ross v. Father, 4 id. 163; Jackson v. Culver, id. 550; People v. Dunning, 1 Wend. 18; Williams v. Hogeboom, 22 id. 648; Pierce v. Crane, 4 How. 260; Park v. Church, 5 id. 383; Carpenter v. Simmons, 28 id. 13; Abels v. Westervill, 15 Abb. 233; Dominick v. Eacker, S Barb. 17.) The omission of the teste does not invalidate an execution, and such defect is amendable. (People, ex rel. Brown, v. Van Horsen, 62‘How. Pr. 76; People, ex rel. Utley, v. Seaton, Sheriff, 13 N. Y. Weekly Dig. 240; Code of Civil Procedure, § 1372; Hill v. Haynes, 54 N. Y. 153; Dunn v. Lebony, 1 N. J. Law [1 Coxe], iii; Hutchenson v. Brand, 9 N. Y. 208; Bank of Genesee v. Spencer, 18 id. 150, 153; Jackson v. Conlon, 4 Cow. 550; Sears v. Burnham, 17 N. Y. 448; Thompson v. Sargent, 15 Abb. 452; Woster v. Wuterick, 2 Abb. N. C. 206; Boyd v. Vanderbilt, 1 Barb. Ch. 274; Williams v. Hogeboom, 22 Wend. 468; Wondbrener v. Johnson, 7 Abb. [N. S.] 202; Inman v. Grewold, 1 Cow. 199; Chichester v. Cande, 3 id. 39-42.) The court had power to amend the execution. " (Code of Civil Prde., §§ 722, 723, 724, 1303; Pierce v. Crane, 4 How. 360; Niadero v. Viadero, 7 Hun, 316; Bissell v. Kip, 5 Johns. 96-99; Scott v. Shaw, 13 id. 378; Hinman v. Brees, id. 531; Cable v. Cooper, 15 id. 154; Jones v. 1 Cow. 309; People v. Dunning, 1 Wend. 18; Ames v. Webber, 8 id. 545; Chapman v. Dyett, 11 id. 33; Parmlee v. Hitchcock, 12 id. 98; Walden v. Davidson, 15 id. 574; Berry v. Riley, 2 Barb. 307; Tylor v. Willis, 33 id. 327; Blevir V. Bleakely, 23 How. 224; Bacon v. Cropsey, 3 Seld. 195; Reynolds v. Corp., 3 Caines, 270; Jones v. Cook, 1 Cow. 309; Bissell v. Kip, 5 Johns. 96; Hennman v. Brees, 13 id. 531; The People v. Dunning, 1 Wend. 18; Roth v. Schloss, 6 Barb. 308, 32; Harrison v. Wilkin, 78 N. Y. 390; Dodge v. Brown, 9 N. Y. Week. Dig. 494; James v. Gurley, 48 N. Y. 163; Gregory v. Levy, 7 How. 37; Jewett v. Crane, 37 id. 680; Forsyth v. Campbell, 15 Hun, 235; Dunford v. Weaver, 21 id. 349; 84 N. Y. 446; Bensel v. Lynch, 44 id. 162; Bostwick v. Goetzel, 57 id. 582; Harreson v. Wilkin, 69 id. 412; Hutchinson v. Brand, 9 id. 208 ; B'k of Genesee v. Spencer, 18 id. 150, 153; Sears v. Burnham, 17 id. 448; Barker v. Binninger, 14 id. 280; Kelly v. McCormick, 28 id. 318; Dodges v. Brown, 9 N. Y. Week. Dig. 494; N. Y. Guaranty & Indemnity Co. v. Rogers, 71 N. Y. 377; Benedict & Burnham Manuf. Co. v. Thayer, 20 Hun, 547; 21 id. 615 ; People, ex rel. Brown, v. Van Housen, Sheriff, 62 How. Pr. 79; James v. Gurley, 48 N. Y. 163.) No demand was required to be made upon the sheriff for the amount of the undertaking of bail. (Manning v. Keenan, 73 N. Y. 63; Atkins v. Elwell, 45 id. 753; Gregory v. Levy, 7 How. 37; 12 Barb. 610; Jewett v. Crane, 35 id. 208; Bensel v. Lynch, 44 N. Y. 162; Cozine v. Walter, 55 id. 304; Metcalf v. Stryker, 81 id. 255; Nelson v. Kerr, 69 id. 224.) The certificate, or paper, signed by the county judge, “ in Iks, Matter of William T. Warren, an alleged inebriatef was entirely immaterial, and the proceedings therein or thereupon could not affect the rights of this plaintiff. (Laws of 1873, chap. 625, § 17; Brown et al. v. Tracy, 9 How. 93; Cable v. Pettibone, 4 Comst. 300; Toll v. Alvord, 64 Barb. 568; Bullymore v. Cooper, 46 N. Y. 236, 242; Bennett v. Burch, 1 Denio, 141; Jackson v. Smith, 5 Johns. 115; Van Slyck v. Taylor, 9 id. 48; Palmer v. Hatch, id. 359; Code of Civil Proc., § 599.) Proof that “ directions, etc., were given to prevent service of the executions ” was not competent under a general or special denial, it was “ new matter,” incompetent unless put in issue, and the use in complaint of the word “ duly ” does not affect this rule. (Code of Civil Proc., §§ 500, 599 ; Richtmyer v. Remsen, 38 N. Y. 206; Brazell v. Isham, 12 id. 9, 17; Bishop v. Earl, 17 Wend. 316; Bradley v. Bishop, 7 id. 353; MeKyring v. Butt, 16 N. Y. 297; Graham v. Horrower, 18 How. 144 ; Richtmyer v. Ramsen, 38 N. Y. 206; Kiffen v. McConnell, 30 id. 290; Eldridge v. Mother, 2 id. 157; Paige v. Willett, 33 id. 28, 31; Fox v. Gumstead, 10 Barb. 321; Travis v. Barger, 24 id. 614; Beaty v. Swarthout, 32 id. 293; Wright v. Delafield, 25 N. Y. 270; Forbes v. Waller, id. 437; Bartlett v. Crozier, 17 Johns. 437, 461; Austin v. Goodrich, 49 N. Y. 266; Porter v. Kingsley, 5 Hun, 597; affirmed, 71 N. Y. 588; Graham v. Machado, 6 Duer, 516; Mayor, etc. v. Doody, 4 Abb. Pr. 127; Murray v. N. Y. L. Ins. Co., 12 N. Y. Weekly Digest, 232; Bonfield v. Haeger, 7 Abb. N. C. 318.) The facts constituting a defense (Code of Civil Proc., § 599), if pleaded (id., § 500), not appearing even by amended answer, could not be proved on the trial. (Cole v. Smith, 4 Johns. 193; Monell v. Fuller, 7 id. 402; 8 id. 217; Bayard v. Smith, 17 id. 88; Smith v. Lockwood, 13 Barb. 216; Brown v. Harmon, 21 id. 508; McKarg v. Eastman, 35 How. 206; Bartlett v. Crozier, 17 Johns. 437, 461; Austin v. Goodrich, 49 N. Y. 266; Leffler v. Field, 52 id. 621; Dudley v. Scranton, 57 id. 424-429; Dubois v. Hermance, 56 id. 673; Barbery. Morgan, 61 Barb. 116; James v. McKerrmon, 6 Johns. 563; Perkins v. Giles, 53 Barb. 342 ; Richtmyer v. Remsen, 38 N. Y. 206; Field v. The Mayor, 2 Seld. 178; Bristol v. The R. & S. R. R., 9 Barb. 158; Wright v. Delafield, 24 N. Y. 266; Seward v. Torrence, 3 Hun, 220; Brazell v. Isham, 2 Kern. 1; Sheldon v. Payne, 3 Seld. 452; 6 id. 398; v. Campbell, 19 Hun, 615; Forbes v. Waller, 25 N. Y. 430; Townsend v. Oler, 5 Wend. 209; Baker v. McDuffie, 23 id. 289; Russell v. Margerson, 11 Barb. 423; Sheldon v. Pease, 3 Seld. 463; Cozine v. Walter, 55 N. Y. 304; Spencer v. Cuyler, 1 How. 160; Code of Civil Proe., § 598 ; Crocker on Sheriffs, § 46; Bradley et al. v. Bishop, 7 Wend. 353; Sheridan v. Jackson, 72 N. Y. 170; Hammond v. Earl, 58 How. 426.) The court must adopt the construction of the answer which is most unfavorable to the pleader. (Ferris v. N. Am. F. Ins. Co., 1 Hill, 71; Slocum v. Clarke, 2 id. 475; Beach v. Bay State Co., 10 Abb. Pr. 71; Winter v. Baker, 50 Barb. 433; Burger v. Koop, 48 N. Y. 231; Cruger v. Glass, 19 Barb. 185, 240; Cruger v. The Hudson R. R. Co., 14 N. Y. 190, 201; Powers v. Rome, W. & O. R. R., 5 N. & C. 449; Spear v. Downing, 34 Barb. 523; Hosley v. Black, 28 N. Y. 438.) The offer by defendant to show directions, etc., by plaintiff’s counsel was incompetent and properly excluded. (Eaton v. Smith, 1 E. D. Smith, 318; Brady v. The Mayor, 1 Sandf. 569; Graham’s Pr. [2d ed.] 50, 51; Trippe v. Debow, 5 How. 114; Chadwick v. Snediker, 26 id. 60; Webb v. Dill, 18 Abb. 264; Code of Civil Procedure, §§ 55, 541; Kelsey v. Western, 2 Comst. 506; Walter v. Bennett, 16 N. Y. 251; Gasper v. Adams, 28 Barb. 444; Moore v. McKibbins, 33 id. 246; Sinclair v. Hill, 1 Hun, 80; Schuyler v. Meyers, 5 Bans. 170; Beared v. Gates, 2 Hun, 466; Lord v. Lindsay, 18 id. 485.) It is a violation of the plain intent of the statute to permit a sheriff to relieve himself from his statutory liability as bail, where he has directly violated his duties, as sheriff. (Ball v. Pratt, 36 Barb. 409; Code of Civil Procedure, § 598; Bishop v. Bradley, 7 Wend. 353; Bissell v. Kip, 5 Johns. 96; Mahoney v. The People, Sup. Ct. [T. & C.] 4; Ingersoll v. Bostwick, 22 N. Y. 425; Chester v. Dickenson, 54 id. 15; Sheridan v. The Mayor, 4 N. Y. W’kly Dig. 507; Tomlinson v. The Mayor, etc., 44 N. Y. 601; Irvine v. Driggs, 69 id. 147; Emmons v. Wheeler, 3 Hun, 544; Bowman v. Cornell, 39 Barb. 72; Cozine v. Walter, 55 N. Y. 309, 310; Hofheins v. Campbell, 54 id. 269; Swezey v. Lott, 22 id. 484; Hoffman v. Conner, 13 Hun, 542; Ledyard v. Jones, 7 N. Y. 553; Barker v. Benninger, 14 id. 270; Flanagan v. Tinen, 53 Barb. 587.)</p>

Appeal by certain stockholders of defendant from a judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made at the June term, 1881, which affirmed a judgment entered upon an order of Special Term allowing the accounts of William F. Miller, receiver.of the defendant, and directing judgment in favor of said receiver against two of defendant’s stockholders.

(Reported below, 26 Hun, 1.) The material facts are stated in the opinion. One who, having clear knowledge that an injunction has been issued restraining him from doing a certain act, does that act notwithstanding, is punishable for contempt, although service of the injunction upon him personally had not been completed. (Livingston v. Swift, 23 How. Pr. 1; People v. Brower, 4 Paige, 405; Hull v. Thomas, 3 Edw. 236; Ewing v. Johnson, 34 How.

The nature of the action and the material facts are stated in the opinion. The court erred in refusing the motion for a nonsuit, as the execution against the person of Hunger was illegal and void. (Code of Civil Procedure, §§ 1372, 1489.) The judgment in the original action, in favor of the plaintiffs against Hunger and Kipp, was not one upon which an execution against the person could legally issue.

<p>The nature of this action and the facts are stated in the opinion, which is given in full.</p>