Volume 88 — New York Supreme Court Reports

Appeal by the plaintiff, Emiline Lee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 15th day of May, 1894, sustaining the defendant’s demurrer to the complaint.

Appeal by tlie defendant, Orrin Weston, from an order of the Supreme Court, made at the Erie Special Term on the 19th day of December, 1893, and entered in the office of the clerk of the county of Erie denying the defendant’s motion to open his default and to permit him to defend the action.

Appeal by Charlotte Kavanaugh, one of the legatees named in the last will and testament of Norman Howard, deceased, from that portion of a decree of the Surrogate’s Court of the county of Cattaraugus, made on the 1st day of March, 1893, and entered in the Cattaraugus County Surrogate’s Court, settling and allowing the accounts of the executor of the said deceased, and directing the distribution of the residuary estate of the said deceased, by which it was adjudged and…

Appeal by the defendants, Daniel O. Beard and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of November, 1893, upon the decision of the court rendered after a trial at the Erie Special Term overruling, the defendants’ demurrer to the amended complaint, and also from an order made at the Erie Special Term and entered in said clerk’s office on the 29th day of…

Appeal by the plaintiff, David A. Lamming, from a judgment of tbe Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 1st day of March, 1894, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, diaries M. dark, from an interlocutory judgment of the Supreme Court in favor of tlie plaintiff, entered, in the office of the clerk of the county of Ontario on the 27th day of February, 1894, upon the decision of the court rendered after a trial at the Ontario Special Term, sustaining the plaintiff’s demurrer to the second defense contained in the answer.

Appeal by tbe plaintiff, Porter NX. French, as receiver of James Yick, seedsman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 16th day of April, 1894, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by tbe plaintiff, Charles H. Ketehum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tates on the 28th day of September, 1893, upon tbe decision of the court, rendered after a trial ¡at tbe Tates Special Term, dismissing the plaintiff’s complaint. This action was brought to restrain the commission of a trespass.

Appeal by the plaintiff, Thomas R. Norris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yates on the 27th day of December, 1893, upon the decision of the court rendered after a trial at the Yates Circuit before the court and a jury dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendants, Ered P. Michels and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 17th day of May, 1891, upon the decision of the court, rendered at the Monroe Special Term, decreeing that the condemnation of the real property described in the petition is necessary for the public use, and that the plaintiffs are entitled to take and hold such property for the public use,…

<p>Offer to allow judgment to be taken — acceptance thereof — contract made thereby cannot be modified by the court — when the contract is executed.</p> <p>An offer served by the defendant in an action to allow the plaintiff therein to take judgment against Mm for a specified sum, together with the acceptance thereof; constitutes a contract which the court cannot set aside upon motion. The court is also powerless to order or frame an amendment of the judgment or offer, which would operate to change the contract, without the consent of both parties.</p> <p>The contract made, by the service on the plaintiff in an action of an offer to allow judgment to be taken against the defendant, and the acceptance thereof by the plaintiff, requires the agreement of both parties to make it effectual; it becomes executed when the judgment entered upon the offer and the acceptance is fully paid and satisfied.</p>

Appeal by tlie defendant, James W. Birkett, from an order of tbe Supreme Court, made at tbe Kings County Special Term and entered in tbe office of tbe clerk of tbe county of Kings on the 10th day of August, 1894, enjoining and restraining the treasurer of Kings county from paying to said Birkett tbe amount of certain claims mentioned in said order.

Appeal by the petitioner, Yiola J. M. Karam, from an ' order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York County Surrogate’s Court on the 1st day of August, 1894, denying the application of the petitioner to revoke the probate of the will of Benjamin Richardson, deceased, and to revoke the letters testamentary issued thereunder, and dissolving an injunction order previously granted by the court staying and enjoining…

<p>Attachment — insufficient proof of plaintiff's residence and of the place where the cause of action originated.</p> <p>■Wien neither the affidavit upon which an attachment was granted nor the complaint in the action contains any averment as to the residence of the plaintiff or the place where the cause of action-originated, the order granting the warrant of attachment must he reversed; recitals in an instrument referred to in the complaint cannot supply the place of such averment.</p>

Appeal by the defendants, Edward Yan Ness and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, J.894, confirming the report of a referee and directing that a certain allegation contained in an affidavit submitted in opposition to a motion to remove a trustee and to compel him to give additional security, be stricken out and expunged as false and scandalous,…